Department of Veterans Affairs

Vol. 78 Wednesday, No. 229 November 27, 2013

Part II

38 CFR Parts 3 and 5 VA Compensation and Pension Regulation Rewrite Project; Proposed Rule

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DEPARTMENT OF VETERANS These regulations govern the • RIN 2900–AL89, Dependency and AFFAIRS adjudication of claims for VA’s Indemnity Compensation Benefits monetary benefits (compensation, (October 21, 2005) 38 CFR Parts 3 and 5 pension, dependency and indemnity • RIN 2900–AL94, Dependents and RIN 2900–AO13 compensation, and burial benefits), Survivors (September 20, 2006) which are administered by the Veterans • RIN 2900–AL95, Payments to VA Compensation and Pension Benefits Administration (VBA). Beneficiaries Who Are Eligible for Regulation Rewrite Project The Project responds to a More than One Benefit (October 2, recommendation made by the VA 2007) AGENCY: Department of Veterans Affairs. Claims Processing Task Force in its • RIN 2900–AM01, General Evidence ACTION: Proposed rule. October 2001 ‘‘Report to the Secretary of Requirements, Effective Dates, Veterans Affairs’’ and to criticisms by Revision of Decisions, and Protection SUMMARY: The Department of Veterans the U.S. Court of Appeals for Veterans of Existing Ratings (May 22, 2007) Affairs (VA) proposes to reorganize and Claims. The Task Force recommended • RIN 2900–AM04, Improved Pension rewrite its compensation and pension that VA reorganize its regulations in a (September 26, 2007) regulations in a logical, claimant- logical, coherent manner. The Court • RIN 2900–AM05, Matters Affecting focused, and user-friendly format. The referred to the current regulations as a the Receipt of Benefits (May 31, 2006) intended effect of the proposed ‘‘confusing tapestry’’ and criticized VA • RIN 2900–AM06, Payments and revisions is to assist claimants, for maintaining substantive rules in its Adjustments to Payments (October 31, beneficiaries, veterans’ representatives, Adjudication Procedures Manual 2008) and VA personnel in locating and (manual). Accordingly, the Project • RIN 2900–AM07, Service-Connected understanding these regulations. reviewed the manual to identify Disability Compensation (September DATES: Comments must be received by provisions that might be substantive and 1, 2010) VA on or before March 27, 2014. incorporated those provisions in a • RIN 2900–AM16, VA Benefit Claims ADDRESSES: Written comments may be complete rewrite of part 3. VA (April 14, 2008) submitted through http:// published the rewritten material in 20 VA received numerous comments to www.regulations.gov; by mail or hand- Notices of Proposed Rulemaking the 20 NPRMs. These came from private delivery to: Director, Regulations (NPRMs) and gave interested persons 60 individuals and several Veterans Management (02REG), Department of days to submit comments after each Service Organizations. VA thanks the Veterans Affairs, 810 Vermont Ave. publication. These NPRMs addressed commenters for the time they invested NW., Room 1068, Washington, DC specific topics, programs, or groups of and the contribution they have made to 20420; or by fax to (202) 273–9026. regulatory material organized under the the quality of the proposed regulations Comments should indicate that they are following Rulemaking Identifier in this document. submitted in response to RIN 2900– Numbers (RIN): VA also wishes to thank its AO13. Copies of comments received • RIN 2900–AL67, Service employees, past and present, for their will be available for public inspection in Requirements for Veterans (January hard work and dedication in drafting the Office of Regulation Policy and 30, 2004) these regulations. We are especially • Management, Room 1063B, between the RIN 2900–AL70, Presumptions of grateful for the contributions of the late hours of 8:00 a.m. and 4:30 p.m., Service Connection for Certain Richard Hirst and Robert M. White, who Monday through Friday (except Disabilities, and Related Matters (July dedicated their lives to our nation’s holidays). Please call (202) 461–4902 for 27, 2004) • disabled veterans. an appointment (this is not a toll-free RIN 2900–AL71, Accrued Benefits, In several of the prior NPRMs, we number). In addition, during the Death Compensation, and Special proposed to amend certain provisions or comment period, comments may be Rules Applicable Upon Death of a portions of provisions in 38 CFR part 3. viewed online through the Federal Beneficiary (October 1, 2004) • Upon further consideration, if VA Docket Management System at http:// RIN 2900–AL72, Burial Benefits implemented the Project as a new 38 www.regulations.gov. (April 8, 2008) CFR part 5, it would not amend any part • RIN 2900–AL74, Apportionments to FOR FURTHER INFORMATION CONTACT: 3 provisions in conjunction with Dependents and Payments to William F. Russo, Deputy Director, publishing part 5. Instead, it would Fiduciaries and Incarcerated Office of Regulations Policy & remove part 3 in its entirety when it is Beneficiaries (January 14, 2011) Management (02REG), Office of the • RIN 2900–AL76, Benefits for Certain no longer applicable to the adjudication General Counsel, Department of Filipino Veterans and Survivors (June of benefit claims and would provide Veterans Affairs, 810 Vermont Ave. 30, 2006) public notice before doing so. NW., Washington, DC 20420, (202) 461– • RIN 2900–AL82, Rights and As stated in the prior NPRMs, we 4902 (this is not a toll-free number). Responsibilities of Claimants and would incorporate numerous statutory SUPPLEMENTARY INFORMATION: Beneficiaries (May 10, 2005) amendments, VA General Counsel • Opinions, court decisions, and VA Introduction RIN 2900–AL83, Elections of Improved Pension; Old-Law and manual provisions in the rewritten The VA Office of the General Counsel Section 306 Pension (December 27, regulations. To the extent that any provides centralized management and 2004) manual provision would be inconsistent coordination of VA’s rulemaking • RIN 2900–AL84, Special and with a rewritten regulation, the process through its Office of Regulation Ancillary Benefits for Veterans, regulation would be binding on VA and Policy and Management (ORPM). One of Dependents, and Survivors (March 9, the public. Any implementation of the ORPM’s major functions is to oversee 2007) rewritten regulations, whether VA’s Regulation Rewrite Project (the • RIN 2900–AL87, General Provisions implemented as proposed in this NPRM Project) to improve the organization and (March 31, 2006) or in some other manner, would require clarity of VA’s adjudication regulations, • RIN 2900–AL88, Special Ratings a corresponding rewrite of VA’s which are in current 38 CFR part 3. (October 17, 2008) adjudication procedures manual.

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VA does not intend to publish a final made to those proposed rules. Prior to requires proof that the grant was based rule in this rulemaking proceeding in publishing a final rule in this on clear and unmistakable error (CUE). the near future. In the first quarter of rulemaking, VA will consider any The Roberts dissent quoted at length fiscal year 2012, VBA formulated a comments that it receives in response to from NPRM AM 01, 72 FR 28770, May Transformation Plan to improve the this NPRM and will evaluate the 22, 2007, to rebut the Secretary’s delivery of benefits to veterans and their feasibility of a one-time implementation assertion that his argument correctly dependents and survivors. In the first of new part 5 as proposed. If VA stated VA interpretation of §§ 3.105(d) phase of this plan, VBA’s determines that such an implementation and 3.957 in light of regulatory history transformational people, processes, and is feasible, we may need to publish and in the absence of historical technology initiatives are designed to additional rulemakings to adapt to information that VA ever implemented achieve VA’s priority goals of implementation plans and keep these the regulations differently. The dissent processing all disability claims within proposed rules up to date. first noted that in rewriting §§ 3.957 and 125 days and increasing rating quality to 3.105(d), ‘‘VA intends to ‘clarify’ and 98 percent by the end of 2015. Upon Substantive v. Non-substantive Changes recodify 38 CFR 3.957 and the achieving those goals, the plan calls for In the NPRMs we stated: provisions of 38 CFR 3.105(d) that VBA to allocate resources to maintain [a]lthough these regulations have been govern when service connection may be high-quality service for compensation substantially restructured and rewritten for severed at 38 CFR 5.175, entitled claims while redirecting resources to the greater clarity and ease of use, most of the ‘Protection or severance of service second phase of the transformation, basic concepts contained in these proposed connection.’ ’’ Id. at 436. The dissent which will address the needs of VBA’s regulations are the same as in their existing also noted that our proposed regulations other benefit programs (appeals, counterparts in 38 CFR part 3. However, a did not except severance of service veterans and survivors pension, few substantive differences are proposed connection based on fraud from the due dependency and indemnity .... process or burden of proof elements of compensation, burial benefits, .... §§ 3.957 or 3.105(d). Finally, the dissent vocational rehabilitation, education, and Readers who . . . observe substantive noted that the NPRM stated that it changes between [existing regulatory fiduciary). To ensure that VBA provisions and proposed provisions] should explained any substantive changes successfully implements this plan and consult the text that appears later in this between part 3 and part 5, 72 FR 28771– accomplishes the Department’s priority document for an explanation of significant 27772, May 22, 2007, and that there was goals of eliminating the disability claims changes in each regulation. nothing in the NPRM ‘‘indicating that backlog and improving veterans’ and the rewriting and restructuring of the In the NPRMs we sometimes referred survivors’ access to benefits and regulations [pertaining to severance of to specific proposed changes from part services, VA may not publish a final- service connection for fraud] are 3 as ‘‘substantive’’ or ‘‘not substantive.’’ rule notice in this rulemaking until intended as substantive changes.’’ Id. at Sometimes we said ‘‘we intend no VBA’s Transformation implementation 437–39. From these observations, the substantive change.’’ Our intent was to is complete. dissent reasoned, the NPRM revealed In the interim, VA will continue to clarify for readers whether we were VA’s interpretation of §§ 3.957 and amend its adjudication regulations in 38 making a policy change (‘‘substantive’’) 3.105(d) as requiring application of both CFR part 3 to implement changes in law or merely restating existing VA policy the process and burden of proof and the policies and procedures that it more clearly (‘‘non-substantive’’), in provisions of § 3.105(d) before severing needs to properly administer its benefit those instances where we thought a service connection. programs. In amending part 3, VA may reader might need that guidance. Most This dissent illustrates the need to refer to the work done by the Project often, however, we applied neither label revise the way we use labels describing and may incorporate that work in whole to our changes; instead we simply told differences between part 5 regulations or in part depending upon the nature of the reader how we were proposing to and the part 3 regulations from which the amendments. In this way, regardless change a regulation provision and why. they derive. In addition to the confusion of any future decision about However, the case of Roberts v. highlighted by the Roberts case, we implementation of the Project’s Shinseki, 23 Vet. App. 416 (2010), aff’d believe that readers may incorrectly rewritten regulations, VA will update its on other grounds, 647 F.3d 1334 (Fed. read our substantive or non-substantive regulations at the same time that VBA Cir. 2011), the U.S. Court of Appeals for labels as referring to the distinction that is improving the delivery of benefits to Veterans Claims (CAVC) showed how the Administrative Procedures Act veterans and survivors under the such labels can be misleading. In (specifically 5 U.S.C. 553) makes Transformation Plan. Roberts, the CAVC affirmed VA’s between substantive rules and severance of fraudulent service interpretive or procedural rules. See Request for Public Comments connection. The Secretary argued Cmty. Nutrition Inst. v. Young, 818 F.2d In this NPRM, we have merged the severance for fraud is subject to the due 943 (D.C. Cir. 1987); Vermont Yankee Rulemaking Identifier Numbers (RINs) process required in 38 CFR 3.103(b) Nuclear Power Corp. v. Natural of the 20 prior NPRMs into the RIN for (concerning adverse decisions) and Resources Defense Council, 435 U.S. this NPRM, AO13. The preamble to this exempt from the requirements of 519 (1978); Am. Hosp. Ass’n v. Bowen, NPRM addresses the public comments § 3.105(d) (concerning severance of 834 F.2d 1037, 1045 (D.C. Cir. 1987). that VA received in response to those service connection). The CAVC also To avoid potential confusion, we now NPRMs and explains the changes we held that the reference to compliance advise readers to draw no inferences have made to the initially proposed with § 3.105(d) in the regulation on from the use of, or non-use of, the labels rules. protection of service-connected status substantive or non-substantive in the Although VA does not intend to § 3.957 does not apply in cases of fraud. NPRMs. Instead, readers should simply complete this rulemaking in the near In holding that § 3.105(d) does not apply rely on our actual description of the future, we request public comments on to severance of service connection based change and our reasons for making the the consolidation of the prior proposed fraud, the CAVC explicitly rejected change. The only instances where we rules, which would be implemented in appellant’s §§ 3.105(a) and 3.957 use ‘‘substantive’’ in this preamble are a new 38 CFR part 5, and on the changes arguments that severance for fraud where we used the term to refute a

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comment asserting that we are on September 20, 2006. See 71 FR provisions relating to proof of death and diminishing rights or benefits and when 55052. service-connected cause of death on used to distinguish a ‘‘substantive’’ ‘‘Subpart E: Claims for Service October 21, 2005. See 70 FR 61326. provision from a ‘‘procedural’’ one. Connection and Disability ‘‘Subpart H: Special and Ancillary Compensation’’ would define service- Benefits for Veterans, Dependents, and II. Overview of New Part 5 connected disability compensation and Survivors’’ would pertain to special and Organization service connection, including direct and ancillary benefits available, including We plan to organize the new part 5 secondary service connection. This benefits for a child with various birth regulations so that most provisions subpart would inform readers how VA defects. We published this subpart as an governing a specific benefit are located determines service connection and NPRM on March 9, 2007. See 72 FR in the same subpart, with general entitlement to disability compensation. 10860. provisions pertaining to all The subpart would also contain those ‘‘Subpart I: Benefits for Certain compensation and pension benefits provisions governing presumptions Filipino Veterans and Survivors’’ would grouped together. This organization will related to service connection, rating pertain to the various benefits available allow claimants, beneficiaries, and their principles, and effective dates, as well to Filipino veterans and their survivors. representatives, as well as VA as several special ratings. We published We published this subpart as an NPRM adjudicators, to find information this subpart as three separate NPRMs on June 30, 2006. See 71 FR 37790. relating to a specific benefit more due to its size. We published the first, ‘‘Subpart J: Burial Benefits’’ would quickly than the organization provided concerning presumptions related to pertain to burial allowances. We in current part 3. service connection, on July 27, 2004. published this subpart as an NPRM on The first major subdivision would be See 69 FR 44614. We published the April 8, 2008. See 73 FR 19021. ‘‘Subpart K: Matters Affecting the ‘‘Subpart A: General Provisions’’. It second, concerning special ratings, on Receipt of Benefits’’ would contain would include information regarding October 17, 2008. See 73 FR 62004. We provisions regarding bars to benefits, the scope of the regulations in new part published the third, concerning service- forfeiture of benefits, and renouncement 5, general definitions, and general connection and other disability of benefits. We published this subpart as policy provisions for this part. We compensation, on September 1, 2010. an NPRM on May 31, 2006. See 71 FR published this subpart as a Notice of See 75 FR 53744. 31056. Proposed Rulemaking (NPRM) on Mar. ‘‘Subpart F: Nonservice-Connected ‘‘Subpart L: Payments and 31, 2006. See 71 FR 16464. Disability Pensions and Death Pensions’’ would include information Adjustments to Payments’’ would ‘‘Subpart B: Service Requirements for regarding the three types of nonservice- include general rate-setting rules, Veterans’’ would include information connected pension: Old-Law Pension, several adjustment and resumption regarding a veteran’s military service, Section 306 Pension, and Improved regulations, and election-of-benefit including the minimum service Pension. This subpart would also rules. We published this subpart as two requirement, types of service, periods of include those provisions that state how separate NPRMs due to its size. We war, and service evidence requirements. to establish entitlement to Improved published the first, concerning We published this subpart as an NPRM Pension and the effective dates payments to beneficiaries who are on Jan. 30, 2004. See 69 FR 4820 governing each pension. We published eligible for more than one benefit, on ‘‘Subpart C: Adjudicative Process, this subpart as two separate NPRMs due October 2, 2007. See 72 FR 56136. We General’’ would inform readers about to its size. We published the portion published the second, concerning claim filing and benefit application concerning Old-Law Pension, Section payments and adjustment to payments, procedures, VA’s duties, claimants’ and 306 Pension, and elections of Improved on October 31, 2008. See 73 FR 65212. beneficiaries’ rights and responsibilities, Pension on December 27, 2004. See 69 The final subpart, ‘‘Subpart M: general evidence requirements, and FR 77578. We published the portion Apportionments to Dependents and general effective dates of new awards, concerning eligibility and entitlement Payments to Fiduciaries and and about revision of decisions and requirements, as well as effective dates Incarcerated Beneficiaries’’ would protection of VA ratings. We published of Improved Pension, on September 26, include regulations governing this subpart as three separate NPRMs 2007. See 72 FR 54776. apportionments, benefits for due to its size. We published the first, ‘‘Subpart G: Dependency and incarcerated beneficiaries, and concerning the duties of VA and the Indemnity Compensation, Accrued guardianship. We published the NPRM, rights and responsibilities of claimants Benefits, and Special Rules Applicable concerning apportionments to and beneficiaries, on May 10, 2005. See Upon Death of a Beneficiary’’ would dependents and payments to fiduciaries 70 FR 24680. We published the second, contain regulations governing claims for and incarcerated beneficiaries, on concerning general evidence dependency and indemnity January 14, 2011. See 76 FR 2766. requirements, effective dates, revision of compensation (DIC); accrued benefits; decisions, and protection of existing and various special rules that apply to III. Tables Comparing Proposed Part 5 ratings, on May 22, 2007. See 72 FR the disposition of benefits, or proceeds Rules With Current Part 3 Rules 28770. We published the third, of benefits, when a beneficiary dies. The purpose of the Regulation concerning rules on filing benefits This subpart would also include related Rewrite Project is to reorganize all of claims, on April 14, 2008. See 73 FR definitions, effective-date rules, and VA’s compensation and pension rules in 20136. rate-of-payment rules. We published a logical, claimant-focused, and user- ‘‘Subpart D: Dependents and this subpart as two separate NPRMs due friendly format. We have redistributed Survivors’’ would inform readers how to its size. We published the NPRM the part 3 regulations into a new VA determines whether a person is a concerning accrued benefits, special organizational structure, part 5. We have dependent or a survivor for purposes of rules applicable upon the death of a created two tables, the distribution table determining eligibility for benefits. It beneficiary, and several effective-date and the derivation table, to facilitate the would also provide the evidence rules, on October 1, 2004. See 69 FR understanding of the redistribution of requirements for these determinations. 59072. We published the NPRM the regulations. These tables are meant We published this subpart as an NPRM concerning DIC benefits and general to aid users who are familiar with either

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the part 3 or the part 5 regulations and and therefore should not be adopted. order to establish the right to benefits under are searching for their counterparts in This commenter urged VA to provide such laws; Æ part 5 or part 3. We have updated the the services already promised rather the forms of application by claimants under such laws; tables in this NPRM to reflect the than seek ‘‘to change the manner in Æ proposed changes from the 20 initial the methods of making investigations which they are not put forward.’’ and medical examinations; and NPRMs already published. The project to rewrite and reorganize Æ the manner and form of adjudications The distribution table lists the part 3 the regulations responds to a and awards. regulations by title and matches them recommendation made in the October The same commenter asserted that the with the corresponding part 5 2001 ‘‘Report to the Secretary of regulations. There may not be an Feres Doctrine (which restricts active Veterans Affairs’’ by the VA Claims duty servicemembers from filing suit equivalent part 5 regulation for some Processing Task Force. The Task Force part 3 regulations. This is indicated by against the U.S. Government) and the recommended that the Compensation restrictions on veterans hiring attorneys the phrase ‘‘NO PART 5 REG— and Pension (C&P) regulations be unnecessary’’ in the part 5 column. to represent them in VA claims (see 38 rewritten and reorganized in order to U.S.C. 5904) are unconstitutional. The There are several reasons not to include improve VA’s claims adjudication certain part 3 regulations in part 5. It commenter also asserted that VA process. These regulations are among decisions have upheld the grant of may be obsolete or repetitive of another the most difficult VA regulations for provision that fully covers the intent of ‘‘sovereign immunity’’ to the chemical readers to understand and apply. The companies that manufactured Agent the regulation. Project began its efforts by reviewing, The derivation table is organized by Orange and other defoliants. Lastly, the reorganizing, and redrafting the subpart. Each subpart contains same commenter urged that VA adopt a regulations in 38 CFR part 3 governing regulations relevant to the title of the regulation requiring that any VA the C&P programs of the Veterans subpart. The derivation table lists the employee who wrongfully denies Benefits Administration. proposed part 5 regulations in benefits to a veteran to be permanently numerical order, with the corresponding We disagree with the assertion of the removed from federal employment and part 3 paragraph numbers and the part commenters that rewriting and lose all their retirement benefits. We 5 section title. Some of the part 5 reorganizing the regulations in part 3 is propose to make no changes based on regulations have no part 3 counterpart. not in the best interests of veterans. any of these comments because they are This is indicated by the term ‘‘new’’ in Although it is possible that the validity outside the scope of this rulemaking. the part 3 column. A regulation is of the new part 5 regulations may be V. Technical Corrections and Changes determined to be ‘‘new’’ because it may challenged in the short-term, in the to Terminology for Part 5 be based on a change in law, a court long-term, rewriting and reorganizing decision, a General Counsel Opinion, or these regulations will be beneficial to We propose to make certain a manual provision. veterans. This is because part 5 will be additional technical corrections and As stated previously, there are also better organized, which will allow changes in terminology in this proposed instances where we have not carried readers and VA personnel to find rule. information more easily. In addition, the over a part 3 regulation into part 5. Technical Corrections Where appropriate, we have included a part 5 regulations will be easier for the comment explaining why part 5 does average reader to understand, will In addition to considering any not include a certain part 3 provision. resolve many ambiguities and necessary changes to proposed part 5 We propose to add part 5 citations to all inconsistencies, and they will not regulations based on comments received the cross-references on the table to include many outdated references and from the public, we propose to make ensure that readers will be able to locate regulations that are found in part 3. certain technical corrections. These the relevant regulation. Therefore, we propose to make no corrections include updated citations to changes based on these comments. certain regulations to which the NPRM IV. General Comments on Regulation One commenter asserted that, without referred. We are now replacing these Rewrite Project legal authority, VA interprets, amends, ‘‘place holder’’ citations with the One commenter, in response to AL70, and reverses laws enacted by Congress. current part 5 citations. ‘‘Presumptions of service connection for The commenter stated that VA Additionally, we propose to renumber certain disabilities, and related regulations obstruct compensation and certain regulations of part 5 in order to matters’’, suggested that VA’s decision ‘‘impose a separate, discriminatory, accommodate all needed regulations. to rewrite and reorganize the provisions quasi-judicial process upon veterans.’’ As stated previously in this preamble, of part 3 and promulgate them as part We respectfully disagree with the we propose to eventually replace 38 5 is not in the best interest of veterans. comment and propose to make no CFR part 3 with a new part 5. We note The commenter stated that as part 3 has changes based on it. Congress has given that numerous 38 CFR sections withstood the scrutiny of the courts and VA authority to regulate in order to reference part 3 sections. To update has been changed accordingly, there is carry out statutory programs supporting these citations throughout 38 CFR, we no reason to now rewrite it. veterans and their families, as stated in propose to add ‘‘or [insert part 5 Additionally, the commenter feared that 38 U.S.C. 501, ‘‘Rules and regulations’’. section]’’ after each to include a the introduction of part 5 will lead to an Paragraph (a) of section 501 includes the reference to the part 5 equivalent to the increase in the number of appeals to the following: referenced part 3 provision. We have compiled the following table courts as the regulations undergo the • rigors of judicial review, which will The Secretary has authority to prescribe that lists the sections in 38 CFR outside all rules and regulations which are necessary part 3 that reference part 3 sections. In result in delays to claimants. or appropriate to carry out the laws Another commenter asserted that administered by the Department and are addition to the part 3 section, the list proposed AL83, ‘‘Elections of Improved consistent with those laws, including— includes the corresponding part 5 Pension; Old-Law and Section 306 Æ regulations with respect to the nature citation. The list is organized by part. As Pension’’, would add to the and extent of proof and evidence and the discussed in various portions of this administrative costs of VA programs method of taking and furnishing them in preamble, there are instances where a

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part 3 regulation will not be carried over propose to simply leave the part 3 into part 5. In those instances, we citation unchanged.

TABLE OF REFERENCES TO 38 CFR PART 3 SECTIONS This table lists the sections in 38 CFR outside part 3 that reference part 3 sections. In addition to the part 3 section, the list includes the corresponding part 5 citation. The list is organized by part.

Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

1 ...... General Provisions ...... 1.17(c) ...... 3.311 ...... 5.269 1.911(f)(2) ...... 3.103(e) ...... 5.80 1.969(b)(1) ...... 3.104(a) ...... 5.160(a) 1.969(b)(2) ...... 3.105(a); 3.105(b) ...... 5.162(c); 5.162(f); 5.163 1.969(b)(3) ...... 3.103 ...... 5.4(a); 5.4(b); 5.80; 5.81; 5.82; 5.83; 5.84 1.969(c) ...... 3.105(b) ...... 5.163 1.969(c) ...... 3.400(h) ...... 5.150(a); 5.166; 5.55(e) 4 ...... Schedule for Rating Disabilities ...... 4.3 ...... 3.102 ...... 5.249(a); 5.4(b); 5.3(b)(2); 5.3(b)(3); 5.3(b)(5); 4.17(b) ...... 3.321(b)(2) ...... 5.380(c)(5) 4.28(Note(1)) ...... 3.105(e) ...... 5.177(f) 4.29(a)(2) ...... 3.105(e) ...... 5.177(f) 4.29(g) ...... 3.321(b)(1) ...... 5.280 4.30 (introduction) ...... 3.105(e) ...... 5.177(f) 4.30(a)(3) ...... 3.105(e) ...... 5.177(f) 4.71a (table II) (row 2 col- 3.350(c)(1)(i) ...... 5.326(a) umn 2). 4.71a (table II) (row 2 col- 3.350(b) ...... 5.324 umn 3). 4.71a (table II) (row 2 col- 3.350(f)(1)(x) ...... 5.327(a) umn 4). 4.71a (table II) (row 2 col- 3.350(f)(1)(vi) ...... 5.325(c) umn 5). 4.71a (table II) (row 2 col- 3.350(f)(1)(xi) ...... 5.328(b) umn 6). 4.71a (table II) (row 2 col- 3.350(f)(1)(viii) ...... 5.326(f) umn 7). 4.71a (table II) (row 3 col- 3.350(b) ...... 5.324 umn 3). 4.71a (table II) (row 3 col- 3.350(f)(1)(iii) ...... 5.325(b) umn 4). 4.71a (table II) (row 3 col- 3.350(f)(1)(i) ...... 5.325(a) umn 5). 4.71a (table II) (row 3 col- 3.350(f)(1)(iv) ...... 5.326(d) umn 6). 4.71a (table II) (row 3 col- 3.350(f)(1)(ii) ...... 5.326(c) umn 7). 4.71a (table II) (row 4 col- 3.350(d)(1) ...... 5.328(a) umn 4). 4.71a (table II) (row 4 col- 3.350(c)(1)(iii) ...... 5.326(e) umn 5). 4.71a (table II) (row 4 col- 3.350(f)(1)(ix) ...... 5.327(d) umn 6). 4.71a (table II) (row 4 col- 3.350(f)(1)(xi) ...... 5.328(b) umn 7). 4.71a (table II) (row 5 col- 3.350(c)(1)(ii) ...... 5.326(b) umn 5). 4.71a (table II) (row 5 col- 3.350(f)(1)(vii) ...... 5.327(c) umn 6). 4.71a (table II) (row 5 col- 3.350(f)(1)(v) ...... 5.327(b) umn 7). 4.71a (table II) (row 6 col- 3.350(e)(1)(i) ...... 5.330(a) umn 6). 4.71a (table II) (row 6 col- 3.350(d)(3) ...... 5.328(d) umn 7). 4.71a (table II) (row 7 col- 3.350(d)(2) ...... 5.328(c) umn 7). 4.71a Note to table II ...... 3.350(b); 3.350(e)(2); 5.324; 5.330(d); 5.331(d); 3.350(f)(3); 3.350(f)(4); 5.331(e); 5.331(f) 3.350(f)(5).

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TABLE OF REFERENCES TO 38 CFR PART 3 SECTIONS—Continued This table lists the sections in 38 CFR outside part 3 that reference part 3 sections. In addition to the part 3 section, the list includes the corresponding part 5 citation. The list is organized by part.

Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

4.73 Note ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.73 Note after (the pelvic 3.350(a)(3) ...... 5.323(d)(1); 5.323(d)(2) girdle and thigh). 4.73 Note after 5327 3.105(e) ...... 5.177(f) (miscellaneous). 4.73 Note after 5329 3.105(e) ...... 5.177(f) (miscellaneous). 4.75(c) ...... 3.383(a) ...... 5.383(b) 4.75(f) ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.79 Note after 6014 ...... 3.105(e) ...... 5.177(f) 4.79 footnote 1 after (dis- 3.350 ...... 5.323; 5.322; 5.324; eases of the eye). 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.79 footnote 1 after (rat- 3.350 ...... 5.323; 5.322; 5.324; ings for impairment of 5.325; 5.326; 5.327; visual fields). 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.85(f) ...... 3.383 ...... 5.283 4.85(g) ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.87 Note after (6208) ..... 3.105(e) ...... 5.177(f) 4.88b Note after (6301) ... 3.105(e) ...... 5.177(f) 4.88b Note after (6302) ... 3.105(e) ...... 5.177(f) 4.96(c) ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.97 Note after (6731) ..... 3.105(e) ...... 5.177(f) 4.97 Note after (6819) ..... 3.105(e) ...... 5.177(f) 4.97 footnote 1 ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.104 Note after (7011) ... 3.105(e) ...... 5.177(f) 4.104 Note after (7016) ... 3.105(e) ...... 5.177(f) 4.104 Note after (7019) ... 3.105(e) ...... 5.177(f) 4.104 Note after (7110) ... 3.105(e) ...... 5.177(f) 4.104 Note 3 after (7111) 3.105(e) ...... 5.177(f)

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Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

4.104 Note after (7123) ... 3.105(e) ...... 5.177(f) 4.114 Note after (7343) ... 3.105(e) ...... 5.177(f) 4.114 Note after (7351) ... 3.105(e) ...... 5.177(f) 4.115b Note ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.115b Note after (7528) 3.105(e) ...... 5.177(f) 4.115b Note after (7531) 3.105(e) ...... 5.177(f) 4.115b footnote 1 ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.116 Note2 ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.116 Note after (7627) ... 3.105(e) ...... 5.177(f) 4.116 footnote 1 ...... 3.350 ...... 5.323; 5.322; 5.324; 5.325; 5.326; 5.327; 5.328; 5.329; 5.330; 5.331(c); 5.331(d); 5.331(f); 5.332; 5.333; 5.346(b)(1)(i); 5.346(b)(2); 4.117 Note after (7702) ... 3.105(e) ...... 5.177(f) 4.117 Note after (7703) ... 3.105(e) ...... 5.177(f) 4.117 Note after (7709) ... 3.105(e) ...... 5.177(f) 4.117 Note after (7714) ... 3.321(b)(1) ...... 5.280 4.117 Note after (7715) ... 3.105(e) ...... 5.177(f) 4.117 Note after (7716) ... 3.105(e) ...... 5.177(f) 4.118 Note after (7818) ... 3.105(e) ...... 5.177(f) 4.118 Note after (7833) ... 3.105(e) ...... 5.177(f) 4.119 Note after (7914) ... 3.105(e) ...... 5.177(f) 4.119 Note after (7919) ... 3.105(e) ...... 5.177(f) 4.12a Note(5) after 3.114 ...... 5.152 (8045). 4.127 ...... 3.310(a) ...... 5.246 4.128 ...... 3.105(e) ...... 5.177(f) 14 .... Legal Services, General Counsel, and Miscella- 14.636(c) ...... 3.156 ...... 5.3(b)(6); 5.55; 5.153; neous Claims. 5.165 14.636(h)(1)(iii) ...... 3.750 ...... 5.745 17 .... Medical ...... 17.36(b)(7) ...... 3.271; 3.272; 3.273; 5.370; 5.410(a); 5.410(c); 3.276. 5.410(d); 5.410(e); 5.410(f); 5.412; 5.413; 5.414(a); 5.414(c); 5.421; 5.423(a); 5.423(b); 5.423(e); 5.706(b); 5.707(c) 17.39(a) ...... 3.42(c) ...... 5.613 17.39(b) ...... 3.42(c) ...... 5.613 17.47(d)(4) ...... 3.271; 3.272 ...... 5.370; 5.410(a); 5.410(c); 5.410(d); 5.410(e); 5.410(f); 5.411(a); 5.411(c); 5.412; 5.413; 5.706(b); 5.707(c) 17.47(d)(5) ...... 3.275 ...... 5.410(d); 5.411(b), 5.411(c), 5.412(a); 5.414; 5.706(b);

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Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

17.96(a)(1) ...... 3.1(u);3.1(w) ...... 5.1 (Improved Pension); 5.1 (Section 306 Pen- sion); 5.460 17.900 ...... 3.814(c)(2); 3.815(c)(2) ... 5.589; 5.590 17.900 ...... 3.815(c)(3) ...... 5.590 17.900 ...... 3.814(c)(1); 3.815(c); 5.589; 5.590 3.815(c)(1). 17.901(a) ...... 3.814; 3.815 ...... 5.589; 5.590; 5.591 17.901(b) ...... 3.815; 3.815(a)(2) ...... 5.590 17.903(a)(2)(i) ...... 3.814 ...... 5.589; 5.591 17.903(a)(2)(ii) ...... 3.815 ...... 5.590; 5.591 18 .... Nondiscrimination in Federally Assisted Programs Appendix B to Subpart E 3.57 ...... 5.1 (Custody of a child); of the Department of Veterans Affairs-Effec- of part 18 (Veterans’ 5.417; 5.220; 5.223; tuation of Title VI of the Civil Rights Act of 1964. Benefits) (Adjudication). 5.225; 5.226; 5.435; 5.695(a) Appendix B to Subpart E 3.57; 3.807(d) ...... 5.1 (Custody of a child); of part 18 (Survivors’ 5.417; 5.220; 5.223; and Dependents’ Edu- 5.225; 5.226; 5.435; cational Assistance) 5.695(a) (Adjudication). Appendix B to Subpart E 3.807(d). of part 18 (Survivors’ and Dependents’ Edu- cational Assistance) (Adjudication) (Sur- vivors’ and Depend- ent’s Educational As- sistance Under 38 U.S.C. Chapter 35). Appendix B to Subpart E 3.50; 3.57; 3.59 ...... 5.1 (Custody of a child); of part 18 (Veterans’ 5.201(a); 5.203(b); Educational Assist- 5.220; 5.223; 5.225; ance). 5.226; 5.238; 5.417; 5.435; 5.695(a) 20 .... Board of Veterans’ Appeals: Rules of Practice ...... 20.101(a)(28) ...... 3.812(d) ...... 5.588 20.1502(c)(3) ...... 3.156 ...... 5.3(b)(6); 5.55; 5.153; 5.165 20.1502(c)(4) ...... 3.105 ...... 5.162 20.1503(d) ...... 3.159(b)(1) ...... 5.90 20.1504(b) ...... 3.159(c) ...... 5.90 20.1505 ...... 3.2600 ...... 5.161 20.1507(a) ...... 3.103(c); 3.2600(c) ...... 5.82; 5.161 20.1507(a)(2) ...... 3.2600 ...... 5.161 Appendix A to part 20 3.103 ...... 5.4(a); 5.4(b); 5.80; 5.81; (20.1). 5.82; 5.83; 5.84 Appendix A to part 20 3.156; 3.160 ...... 5.3(b)(6); 5.55; 5.153; (20.1105). 5.165; 5.57(b)–(d) Appendix A to part 20 3.22 ...... 5.520(b); 5.521; 5.522 (20.1106). Appendix A to part 20 3.103; 3.156; 3.160 ...... 5.3(b)(6); 5.4(a); 5.4(b); (20.1304). 5.55; 5.80; 5.81; 5.82; 5.83; 5.84; 5.153; 5.165; 5.57(b)–(d) 21 .... Vocational Rehabilitation and Education ...... 21.33 Cross-Reference ... 3.103 ...... 5.4(a); 5.4(b); 5.80; 5.81; 5.82; 5.83; 5.84 21.42(b)(1) ...... 3.12 ...... 5.30; 5.31(c); 5.31(e); 5.32; 5.33; 5.34(c); 5.35(b)–(d); 5.36; 5.39 21.48(a) ...... 3.105(d); 3.105(e) ...... 5.83(a) 5.175(b)(1); 5.175(b)(2); 5.177(d); 5.177(f) 21.260(d) ...... 3.50; 3.51; 3.57; 3.59 ...... 5.1 (Custody of a child); 5.201(a); 5.203(b); 5.220; 5.223; 5.225; 5.226; 5.238; 5.417; 5.435; 5.695(a) 21.330(a) ...... 3.451; 3.458 ...... 5.771; 5.775 21.330(b) ...... 3.400(e) ...... 5.782 21.414(a) ...... 3.105(a) ...... 5.162(c); 5.162(f)

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Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

21.414(b) ...... 3.105(b) ...... 5.163 21.414(c) ...... 3.105(c) ...... 5.177(e) 21.414(d) ...... 3.105(d) ...... 5.177(d) 21.414(e) ...... 3.105(e) ...... 5.177(f) 21.422(d)(3) ...... 3.103(c); 3.103(d) ...... 5.81; 5.82 21.3021(a)(2)(ii) ...... 3.6(a); 3.807 ...... 5.21(a); 5.586(b); 5.586(c) 21.3021(b) ...... 3.40(b); 3.40(c); 3.40(d); 5.610 3.807(d). 21.3021 Cross-Reference 3.6 ...... 5.21(a); 5.22(a); 5.23; 5.24; 5.25; 5.29 21.3021 Cross-Reference 3.7 ...... 5.21(a); 5.23(a)–(b); (persons included). 5.24(a); 5.25(a)–(b); 5.28; 5.31(c) 21.3021 Cross-Reference 3.40 ...... 5.610 (Philippine and insular forces). 21.3023 Cross-Reference 3.707 ...... 5.764(b); 5.764(c); (concurrent payments). 5.764(d) 21.3023 Cross-Reference 3.807 ...... 5.586(b); 5.586(c) (certification). 21.3024 Cross-Reference 3.708 ...... 5.750; 5.751 21.3041(e) ...... 3.57(c) ...... 5.223(b) 21.3131(d) ...... 3.40(b); 3.40(c); 3.40(d) .. 5.610 21.3133(c) ...... 3.1000 ...... 5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554 21.3306(b)(3)(ii) ...... 3.102 ...... 5.3(b)(2); 5.3(b)(3); 5.3(b)(5); 5.4(b); 5.249(a) 21.3333(c) ...... 3.40(b); 3.40(c); 3.40(d) .. 5.610 21.4003(a) ...... 3.105(a) ...... 5.162(c); 5.162(f) 21.4003(b) ...... 3.105(b) ...... 5.163 21.4003(c) ...... 3.105(c) ...... 5.177(e) 21.4003(d) ...... 3.105(d) ...... 5.177(d) 21.4007 ...... 3.900; 3.901(except para- 5.675(a); 5.676(b) and graph (c)); 3.902 (ex- (c); 5.677(b) and (c); cept paragraph (c)); 5.678(b)(3); 5.675(b); 3.903;3.904; 3.905. 5.1 (Fraud (1)); 5.676(a); 5.676(b)(2); 5.676(b)(1); 5.676(b)(3)(i); 5.680(c)(1); 5.680(c)(2); 5.677; 5.678; 5.676(d); 5.677(b)(3)(ii); 5.677(c) (2); 5.678(b)(3)(iv); 5.678(c)(2); 5.679; 5.680(a); 5.680(c)(3) 21.4135(t) ...... 3.114(b) ...... 5.152 21.4200(x) ...... 3.1(i) ...... 5.1 (State) 21.5021(b)(5) ...... 3.15 ...... 5.21(b); 5.39(e) 21.5021(l) ...... 3.1(j) ...... 5.191 21.5021(m) ...... 3.1(j); 3.52 ...... 5.191; 5.200(a); 5.200(b) 21.5021(n)(2) ...... 3.57; 3.58 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a); 5.224(a) 21.5021(o) ...... 3.59 ...... 5.238 21.5040(b)(2)(ii) ...... 3.13(c) ...... 5.37(d) 21.5040(b)(3) ...... 3.12; 3.13 ...... 5.30; 5.31(c); 5.31(e); 5.32; 5.33; 5.34(c); 5.35(b)–(d); 5.36; 5.39; 5.37(b); 5.37(c); 5.37(d) 21.5040(c)(3) ...... 3.15 ...... 5.21(b); 5.39(e) 21.5040(d)(1)(ii) ...... 3.4(b) ...... 5.24(a); 5.24(b) 21.5040(d)(3) ...... 3.15 ...... 5.21(b); 5.39(e) 21.5065(b)(5)(iv) ...... 3.4(b) ...... 5.24(a); 5.24(b)

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Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

21.5065(b)(6) ...... 3.15 ...... 5.21(b); 5.39(e) 21.5067(c) ...... 3.1000 ...... 5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554 21.5740(b)(2)(iii) ...... 3.4(b) ...... 5.24(a); 5.24(b) 21.5740(b)(3) ...... 3.15 ...... 5.21(b); 5.39(e) 21.5742(a)(1) ...... 3.15 ...... 5.21(b); 5.39(e) 21 .... VR&E ...... 21.6050(a) ...... 3.342 ...... 5.380; 5.347 21.6050(b) ...... 3.342 ...... 5.380; 5.347 21.6420(d) ...... 3.343 ...... 5.286; 5.347 21.6501(a) ...... 3.340; 3.341 ...... 5.284; 5.285 21.6503(b) ...... 3.340; 3.341 ...... 5.284; 5.285 21.6507(a) ...... 3.343(c)(2) ...... 5.286 21.6521(b) ...... 3.343(c)(2) ...... 5.286 21.7020(b)(1)(iii) ...... 3.6(b) ...... 5.22(a); 5.22(b); 5.23(a)(1); 5.23(b)(1); 5.24(a); 5.24(b)(1); 5.25(a); 5.29(a) 21.7020(b)(1)(iv) ...... 3.6(b) ...... 5.22(a); 5.22(b); 5.23(a)(1); 5.23(b)(1); 5.24(a); 5.24(b)(1); 5.25(a); 5.29(a) 21.7020(b)(9)(ii) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a) 21.7020(b)(9)(iii) ...... 3.59 ...... 5.238(a); 5.238(c); 5.238(e)(1) and 5.238(e)(2)(i) 21.7042 ...... 3.15 ...... 5.21(b); 5.39(e) 21.7044 ...... 3.15 ...... 5.21(b); 5.39(e) 21.7080(c)(3) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a) 21.7080(c)(4) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a) 21.7031(e) Cross-Ref- 3.667 ...... 5.551(a); 5.695(b); erence. 5.695(c); 5.695(d); 5.695(f)–(i) 21.7135(y) ...... 3.114(b) ...... 5.152 21.7140(g) ...... 3.1000 ...... 5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554 21.7280(b)(2) ...... 3.312 ...... 5.504 21.7303(a) ...... 3.105(a) ...... 5.162(c); 5.162(f) 21.7303(b) ...... 3.105(b) ...... 5.163 21.7635(u) ...... 3.114(b) ...... 5.152 21.7803(a) ...... 3.105(a) ...... 5.162(c); 5.162(f) 21.7803(b) ...... 3.105(b) ...... 5.163 21.8010(a) ...... 3.815(c)(3) ...... 5.590 21.8010(a) ...... 3.814(c)(2); 3.815(a)(2); 5.589; 5.590 3.815(c)(2). 21.8010(a) ...... 3.814(c)(3) ...... 5.589 21.8010(a) ...... 3.814(c)(1); 3.815(c)(1) ... 5.589; 5.590 21.9570(b)(3) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a) 21.9570(b)(4) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a)

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Part 3 section Part Part name 38 CFR section referenced Equivalent part 5 citation

21.9625(j)(4) ...... 3.57 ...... 5.1 (Custody of a child); 5.417; 5.220; 5.223; 5.225; 5.226; 5.435; 5.695(a) 21.9635(u) ...... 3.114(b) ...... 5.152 21.9680(e) ...... 3.1000 ...... 5.1 (Accrued benefits); 5.1 (Evidence in the file on the date of death); 5.551; 5.784; 5.552(a); 5.552(b); 5.553; 5.554

Changes in Terminology for Clarity or We noted that in the NPRMs we used Removal of Spanish-American War Consistency ‘‘VA benefits’’ and ‘‘benefits’’ Death Pension Provisions inconsistently and interchangeably. We We propose changes in terminology in propose to define ‘‘Benefit’’ as ‘‘any VA There is currently one beneficiary this rulemaking primarily to achieve payment, service, commodity, function, receiving a Spanish-American War consistency throughout part 5. For or status, entitlement to which is death pension. Therefore, the provisions example, while reviewing the NPRMs, determined under this part, except as concerning Spanish-American War we noted that we had used the word otherwise provided.’’ Therefore, we death pensions should not be carried ‘‘termination’’ interchangeably with the propose to generally not include ‘‘VA’’ forward to part 5. Instead, we propose word ‘‘discontinuance’’ (including before ‘‘benefit’’. However, we propose to remove the Spanish-American War variations of the two words). To ensure to still use ‘‘VA benefit’’ when that term death pension provisions initially clarity and consistency in our part 5 is needed to distinguish it from some proposed in AL83 (§§ 5.460(c) and regulations, we propose to use the term other benefit such as a Social Security 5.462). 69 FR 77578, Dec. 27, 2004. We ‘‘discontinuance’’ throughout. The word benefit or some benefit for which propose to reserve § 5.462 for later use. ‘‘discontinuance’’ is more accurate election is required (e.g. Radiation In addition, we propose to change because there are occasions when the Exposure Compensation Act). initially proposed § 5.0 (the scope benefit is not terminated, but discontinued for a period, and then Removal of Death Compensation provision for part 5) as proposed in resumed. Similarly, we propose to use Provisions AL87, 71 FR 16464, Mar. 31, 2006, to ‘‘person’’ rather than ‘‘individual’’ in all direct that any new claims or actions There are less than 300 beneficiaries concerning Spanish-American War instances where either term would currently receiving death compensation. apply. death pension benefits be adjudicated Except for one small group of under part 3. According to paragraph 12.9 of the beneficiaries, death compensation is Government Printing Office Style payable only if the veteran died prior to Change in Titles of Certain VA Officials Manual (2008), numerals rather than January 1, 1957. VA has not received a words are used when referring to units claim for death compensation in over 10 Effective April 11, 2011, VA of measurement and time. Therefore, we years and we do not expect to receive reorganized its Compensation and propose to substitute the number for the any more. Pension Service by dividing it into word (for example, ‘‘1 year’’ instead of Because of the small number of several smaller entities, including the ‘‘one year’’) throughout part 5. beneficiaries of death compensation, Compensation Service and the Pension Another source of ambiguity and there is no need to include the and Fiduciary Service. We propose to confusion is the phrase ‘‘on or after’’ provisions concerning claims for death update these terms throughout part 5. which is used in connection with a compensation in part 5. We therefore VI. Subpart A: General Provisions AL87 specific date when discussing the propose to remove the death effective date of a regulatory provision compensation provisions (§§ 5.560– In a document published in the or the date by which an event must have 5.562) that were initially proposed in Federal Register on March 31, 2006, we occurred. For example, a regulatory AL71. 69 FR 59072, Oct. 1, 2004. We proposed to revise Department of provision might be effective ‘‘on or propose to reserve §§ 5.560–5.562 for Veterans Affairs (VA) regulations after’’ October 1, 1982, which to some later use. We propose to revise § 5.0 (the concerning general compensation and may seem to permit a choice between scope provision for part 5), as initially pension provisions. See 71 FR 16464. ‘‘on’’ or ‘‘after’’. The simplest way to proposed in AL87, 71 FR 16464, Mar. We provided a 60-day comment period eliminate this ambiguity is to identify 31, 2006, to direct that any new claims that ended May 30, 2006. We received the day before the effective date and for death compensation or actions submissions from seven commenters: precede that date with the word ‘‘after’’. concerning death compensation benefits Paralyzed Veterans of America, Disabled be adjudicated under part 3. We propose In the above example, the regulatory American Veterans, Disabled American provision would be effective ‘‘after to retain provisions regarding death Veterans Chapter 57, Vietnam Veterans September 30, 1982’’. This method of compensation in subpart L because a of America, National Organization of stating effective dates makes our death compensation beneficiary may regulations easier to understand and still elect to receive dependency and Veterans’ Advocates, and two members apply. indemnity compensation instead. of the general public.

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§ 5.0 Scope and Applicability § 5.1 General Definitions In responding to this comment, we determined that we had used the terms In the NPRM, we identified proposed Initially proposed § 5.1, included the ‘‘file’’ and ‘‘submit’’ interchangeably in § 5.0 as a new regulation in the following definition of the term ‘‘agency the NPRMs. We note that other derivation table. 71 FR 16465–16466, of original jurisdiction’’: ‘‘Agency of provisions in title 38 use ‘‘submit’’ or Mar. 31, 2006. However, initially original jurisdiction means the VA variants thereof with respect to the proposed § 5.0 is derived from § 3.2100, activity that is responsible for making presentation of evidence. See proposed which governs the applicability of rules the initial determination on an issue 38 current 38 CFR 3.103(b)(2), 3.203(c), in one subpart of 38 CFR part 3. Section affecting a claimant’s or beneficiary’s and 20.1304. We note also that there is 5.0(a) states a similar applicability right to benefits.’’ In the preamble to the a reasonable basis for using ‘‘file’’ in provision for all of part 5, with only AL87 NPRM, we noted that this relation to documents initiating claims minor revisions to conform it to the part definition differed somewhat from a and appeals and ‘‘submit’’ in relation to 5 formatting and numbering. The definition of the same term in 38 CFR presentation of evidence: it appears that derivation and distribution tables are 20.3(a), which reads as follows: ‘‘Agency Congress has used the term ‘‘file’’ only corrected accordingly. of original jurisdiction means the in relation to documents that have To provide a smooth transition from Department of Veterans Affairs activity procedural significance in terms of part 3 to part 5 we propose to add a new or administration, that is, the Veterans initiating claims or appeals. See 38 paragraph (b) to initially proposed § 5.0 Benefits Administration, Veterans U.S.C. 5101(a), 7105(b), (c), and (d)(3). establishing the applicability date for Health Administration, or National In referring to the presentation of part 5. We propose two rules to govern Cemetery Administration, that made the evidence, Congress has used a variety of the applicability date of part 5, and two initial determination on a claim.’’ We other terms, such as ‘‘submit[ ]’’ (38 rules to state the different situations in stated that, ‘‘The difference is because of U.S.C. 108(b)), ‘‘furnish’’ (sec. 5101(c)), which part 3 would still apply. These the narrower scope of part 5 and ‘‘provide[ ]’’ (sec. 5103), or ‘‘present[ ]’’ rules would make it clear that part 5 because the definitions in § 20.3 apply (sec. 5108). Further, it is possible that will apply prospectively, but not in an appellate context while the ‘‘file’’ may suggest a requirement for a retroactively. definitions in proposed § 5.1 do not.’’ written submission—which is To have part 5 apply immediately to Notwithstanding our initially appropriate for claims, notices of all pending cases would require proposed reason for creating a different disagreement, and substantive appeals— readjudication of thousands of claims definition, we have determined that it is whereas ‘‘submit’’ would include oral (e.g. those where a decision has been unnecessary because the § 20.3(a) presentation of evidence at a hearing. rendered by the agency of original definition will work well in part 5. For these reasons, we propose jurisdiction and the appeal period has Moreover, having two different throughout part 5 to use ‘‘file’’ in not expired), which would significantly definitions, even if the two are relation to documents initiating claims delay processing new claims being filed substantially the same, could cause a and appeals and ‘‘submit’’ in relation to with VA. We believe that our proposed reader to mistakenly believe that VA presentation of evidence. applicability structure will be the most intends to define ‘‘agency of original One commenter commented on our efficient way to transition from part 3 to jurisdiction’’ differently depending on initially proposed definition of part 5 and is clear both to VA employees whether a case is pending at a VA ‘‘claimant,’’ which stated that, ‘‘any and to the members of the public who regional office or at the Board of person applying for, or filing a claim for, use VA regulations. Veterans’ Appeals (the Board). We any benefit under the laws administered We propose to have part 3 continue to therefore propose to replace the by VA’’, noting that the term ‘‘claim’’ apply to all death compensation and definition from the AL87 NPRM with has a different meaning than Spanish-American War benefits. As the § 20.3(a) definition. ‘‘application’’. The commenter noted that a claim does not end with the explained in detail later in this In response to RIN 2900–AM05, disposition of the application and that preamble, these two benefit programs ‘‘Matters Affecting Receipt of Benefits’’, there may be subsequent administrative have very limited numbers of we received several comments on our actions in a claim which were not beneficiaries or potential claimants, and proposed definitions of ‘‘willful initiated by any application and action these claims can continue to be misconduct’’, ‘‘proximately caused’’, by the claimant. The commenter did not processed under part 3, so there is no and ‘‘drugs’’. 71 FR 31056, May 31, address the substance of our definitions need to include them in part 5. 2006. Because these terms apply to nor did the commenter suggest any To ensure that users of part 3 are several different subparts in part 5, we revisions. For the reasons set forth in aware of part 5’s applicability, we propose to move them to § 5.1 and will the preamble to proposed AM16, our propose to add a new § 3.0 to 38 CFR therefore discuss these comments in definitions of ‘‘application’’ and part 3. This section will be titled Scope connection with § 5.1 below. ‘‘claim’’ reflect the distinctions and applicability and will state that part In proposed rulemaking RIN 2900– described by the commenter. We 5, not part 3, will apply to claims filed AM16, VA Benefit Claims, we initially therefore propose to make no changes on or after the effective date of the final proposed definitions of ‘‘application’’ based on the comment. rule. and ‘‘claim’’, to be added to § 5.1, One commenter objected to the scope We note that part 5 is not a ‘‘General definitions’’. 73 FR 20138, of our definition of ‘‘claimant’’, noting ‘‘liberalizing VA issue approved by the Apr. 14, 2008. In that rulemaking, we that Congress, in 38 U.S.C. 5100, Secretary or at the Secretary’s direction’’ proposed that, ‘‘Application means a restricted the definition of ‘‘claimant’’ to under § 5.152 with regard to a claim that specific form required by the Secretary 38 U.S.C. chapter 51. The commenter was filed while part 3 was still in effect that a claimant must file to apply for a asserted that VA should restrict its for new claims. That is because part 5 benefit’’ and ‘‘Claim means a formal or definition to 38 CFR part 5. The does not apply to a claim that was filed informal communication in writing commenter then noted that 38 U.S.C. while part 3 was still in effect for new requesting a determination of 7111 also uses the word ‘‘claimant’’ in claims. Therefore, part 5 cannot be entitlement, or evidencing a belief in connection with a review of a Board liberalizing with respect to such a claim. entitlement, to a benefit.’’ decision on grounds of clear and

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unmistakable error. The commenter language of our definition may have (s) in § 5.1. This term is commonly used asserted that, in 38 U.S.C. 7111, the been overly broad. For instance, it might in part 3 as ‘‘effective date of last person whose file is under review is not be misconstrued to include any payment’’, but not defined in part 3. In a claimant. substance, for example, water. In order certain cases of reduction, suspension, The first phrase of § 5.1 states that, to avoid this potential misinterpretation, or discontinuance of benefit payments, ‘‘The following definitions apply to this we propose to modify our basic VA adjusts payments effective the date part’’. Although other parts of 38 CFR definition of drugs to read as follows: of the last payment of benefits. This may adopt the definitions used in part ‘‘chemical substances that affect the means that ‘‘VA’s action is effective as 5 by expressly stating so, the definitions processes of the mind or body and that of the first day of a month in which it we provided in § 5.1 are restricted by may cause intoxication or harmful is possible to suspend, reduce, or this phrase to use in part 5 unless effects if abused.’’ The language about discontinue a benefit payment without adopted in other parts. The situation affecting the mind or body is taken from creating an overpayment.’’ We are described by the commenter ‘‘Dorland’s Illustrated Med. Dictionary’’ adding the word ‘‘the’’ before ‘‘date’’ (concerning the person whose file is 575 (31st ed. 2007). We propose to add and ‘‘last’’ for clarity. being reviewed by the Board) is not the language about intoxication or One commenter noted that the related to this rule because it concerns harmful effects to ensure that we definition of ‘‘fraud’’ depended on 38 CFR part 20. As stated above, the exclude items which technically are where in the regulations it was used. regulation as initially proposed already chemical substances that might affect This commenter expressed the opinion restricts the application of the definition the mind or body (for example, that the meaning of a word in a statute of claimant to part 5. commercially prepared prune juice), but is presumed to be the common law Based on this comment, however, we do not cause intoxication or harmful meaning unless Congress has plainly propose to narrow the definition of effects. We propose to add a second provided otherwise. The commenter ‘‘claimant’’ to ‘‘a person applying for, or sentence to incorporate important then expressed the opinion that none of filing a claim for, any benefit under this concepts already stated in the initially the definitions of fraud presented in part.’’ Because § 5.1 applies only to part proposed definition: that our definition initially proposed § 5.1 incorporate all 5, it is beyond the scope of this section includes prescription and non- the common law aspects of fraud, to include as a part 5 claimant a person prescription drugs and includes drugs especially the requirement for proof of who is seeking VA benefits under that are obtained legally or illegally. fraudulent intent and the requirement another part of title 38 CFR, such as Another AM05 commenter stated that for proof by clear evidence. health care. For the same reason, we the phrase ‘‘obtained legally or We first note that Congress has propose to make similar changes to our illegally’’ was unnecessary and specifically defined ‘‘fraud’’ in 38 U.S.C. definitions of ‘‘claim’’, ‘‘beneficiary’’, contained a negative implication. The 6103(a) for purposes of forfeiture of and ‘‘benefit’’. commenter recommended saying, benefits. We incorporated that We propose to add the definition of ‘‘however obtained’’ instead. We used definition in paragraph (1) of our ‘‘custody of a child,’’ which means that the phrase ‘‘obtained legally or initially proposed definition of fraud a person or institution is legally illegally’’ because as we stated in the and then proposed to make it VA’s responsible for the welfare of a child NPRM, this phrase is sufficiently broad ‘‘general definition’’ of fraud. In and has the legal right to exercise to cover all the means of obtaining drugs reviewing our definition based on this parental control over the child. Such a or other substances. We used the phrase comment, we have determined that person or institution is the ‘‘custodian’’ ‘‘obtained legally or illegally’’ to ensure there is no need for a general definition of the child. This definition is that the regulation makes clear that a of fraud, since the term is only used in consistent with the definition of ‘‘child properly prescribed drug, obtained the context of forfeiture. We therefore custody’’ in 38 CFR 3.57(d) and with legally, may be abused such as to cause propose to limit the scope to instances current VA practice and usage in 38 intoxication and thus proximately cause of forfeiture. CFR part 3. injury, disease, or death. We propose to Regarding the commenter’s assertion In AM05, § 5.661(a)(3), we initially make no changes based on this regarding common law, we note that the proposed to define the term ‘‘drugs’’ as comment because the recommended five elements of common law fraud are: ‘‘prescription or non-prescription change would not make clear that the (1) A material misrepresentation by the medications and other substances (e.g., abuse of legally obtained drugs is also defendant of a presently existing fact or glue or paint), whether obtained legally considered drug abuse constituting past fact; (2) Knowledge or belief by the or illegally.’’ The definition is now willful misconduct under § 5.661(c). defendant of its falsity; (3) An intent proposed in § 5.1. A commenter We do propose, however, to change that the plaintiff rely on the statement; suggested an amendment to this ‘‘and drugs that are obtained legally or (4) Reasonable reliance by the plaintiff; definition. The commenter asserted that illegally’’ to ‘‘whether obtained legally and 5) Resulting damages to the the definition should include the word or illegally.’’ This makes it clearer that plaintiff. See 100 Am. Jur. Proof of Facts ‘‘chemical’’ because in the commenter’s ‘‘legally or illegally’’ applies to how 3d section 8. The intent element of the view, ‘‘chemical’’ abuse also causes prescription and non-prescription drugs common law definition of fraud relates euphoria and ‘‘chemicals’’ are widely are obtained. The language initially to the defendant’s desire for the abused. Our initially proposed proposed could be misread to mean that plaintiff’s reliance on the statement, definition used the term ‘‘other there are four distinct categories of while the material misrepresentation substances’’ to describe the chemicals drugs, prescription, non-prescription, only requires that the person discussed by the commenter. We legally obtained, and illegally obtained. committing the fraud have a knowledge intended our definition to include ‘‘Whether obtained legally or illegally’’ or belief that the statement is false. organic substances, such as makes it clear that there are two As stated above, our proposed hallucinogenic mushrooms, and all categories, prescription and non- definition of fraud in § 5.1 now relates other substances that may be abused to prescription, either of which could be only to forfeiture and is consistent with cause intoxication. obtained legally or illegally. the applicable statute. There is no In reviewing this comment, we We propose to define ‘‘effective the requirement that our definitions in § 5.1 determined that the ‘‘other substances’’ date of the last payment’’ as paragraph conform to the common law definition.

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Veterans benefits and the body of law where written notice is not practicable Dictionary’’ 1225 (6th ed.1990).’’). We VA applies are often very different from and that it would not be desirable to chose not to adopt the first definition the common law. Moreover, the intent limit the definition of ‘‘notice’’ to only because it deals with liability and the requirement described in the third written communications. When a VA system is not a tort-claims system. common law element above is specific statute or regulation requires Congress has specified different court contained in § 5.1 in the language written notice, we propose to signify procedures for tort actions. We therefore requiring an ‘‘intentional’’ that in part 5 by using the term propose to make no changes based on misrepresentation or failure to disclose ‘‘written’’ in that specific context (e.g., this comment. pertinent facts ‘‘for purpose of § 5.83(b) based on § 3.103(a) and (b)). We propose to add a definition of obtaining’’ the specified objective. In addition, we have determined that ‘‘psychosis’’ as § 5.1 because other part Although some State jurisdictions the use of the defined term as part of the 5 regulations use the term. The require ‘‘clear’’ or ‘‘clear and definition is not useful to the reader. definition is based on 38 CFR 3.384, convincing’’ evidence of fraud in The term ‘‘notice’’ is more accurately which defines it as any of the following various contexts, the Supreme Court has defined as a ‘‘communication,’’ as disorders listed in Diagnostic and stated that ‘‘Congress has chosen the opposed to a ‘‘notice.’’ We, therefore, Statistical Manual of Mental Disorders, preponderance standard when it has propose to define ‘‘notice’’ as either: Fourth Edition, Text Revision, of the created substantive causes of action for • A written communication VA sends American Psychiatric Association fraud.’’ Grogan v. Garner, 498 U.S. 279, a claimant or beneficiary at his or her (DSM–IV–TR): 288 (1991). Congress should not be latest address of record, and to his or • Brief Psychotic Disorder; presumed to have intended a higher her designated representative and • Delusional Disorder; standard of proof where it has not fiduciary, if any; or • Psychotic Disorder Due to General specified such a standard. See id. at 286; • An oral communication VA Medical Condition; Thomas v. Nicholson, 423 F.3d 1279, conveys to a claimant or beneficiary. • Psychotic Disorder Not Otherwise 1284 (Fed. Cir. 2005). The definitions in Additionally, we propose to add the Specified; these rules implement statutes that do definition of ‘‘payee’’. This term is used • Schizoaffective Disorder; not specify a higher standard of proof, throughout part 5. We propose to define • Schizophrenia; and our general rules for evaluating this term in § 5.1 as a person to whom • Schizophreniform Disorder; • evidence will suffice in determinations monetary benefits are payable. Shared Psychotic Disorder; and • concerning fraud. Since we already One AM05 commenter disagreed with Substance-Induced Psychotic include an intent element where it is our initially proposed definition of Disorder. appropriate and our standards of proof ‘‘proximately caused’’. This commenter We propose to add definitions of the are appropriate for our decisions, we also disagreed with including a terms ‘‘service-connected’’, § 5.1, and propose to make no changes based on definition of ‘‘proximate cause’’ in the ‘‘nonservice-connected’’ as § 5.1. Both of this comment. regulation, stating that the concept has these definitions are identical to those We propose to remove the definitions a long history and that for VA to select in 38 U.S.C. 101(16) and (17), except for ‘‘in the waters adjacent to Mexico’’ one definition narrows the concept, that we use the term ‘‘active military and ‘‘on the borders of Mexico’’. Both of which may not work in the favor of service’’ in lieu of the longer term these phrases applied to determining veterans. The commenter also objected ‘‘active military, naval, or air service’’. entitlement to benefits for the Mexican to restricting the definition to the See 69 FR 4820, Jan. 30, 2004. Border War. There are no surviving second definition found in ‘‘Black’s Law We initially proposed a definition of veterans of this war, so the definitions Dictionary’’ 213 (7th Ed. 1999). ‘‘service medical records’’ in § 5.1. We are no longer necessary. It is necessary to define ‘‘proximately now propose to change the defined term We initially proposed to define caused’’ because it has many to ‘‘service treatment records’’, now ‘‘notice,’’ now proposed § 5.1, as definitions, as the commenter noted. § 5.1. The Benefits Executive Council, ‘‘written notice sent to a claimant or Moreover, we do not believe the concept co-chaired by senior VA and beneficiary at his or her latest address is well-known by the public. Claimants, Department of Defense (DoD) officials, of record, and to his or her designated beneficiaries, veterans’ representatives, formally changed the term for a packet representative and fiduciary, if any.’’ In and VA employees are the primary users of medical records transferred from DoD reviewing this definition to respond to of regulations. It is important that we to VA upon a servicemember’s release a comment, we determined that limiting choose one definition, to ensure a from active duty. Specifically, they this definition only to written common understanding of our found that VA, the reserve components, communications could create regulations and to ensure that all users and all of the military services, used unintended problems. In Paralyzed apply them the same way. approximately 20 different phrases for Veterans of America v. Sec’y of We selected the second definition of what VA referred to as ‘‘service medical Veterans Affairs, 345 F.3d 1334, 1349 ‘‘proximately caused’’ from ‘‘Black’s records’’. They concluded that this (Fed. Cir. 2003), the court held that the Law Dictionary’’ 234 (7th ed. 1999) (the inconsistent use of terminology was a requirement in 38 U.S.C. 5103A(b)(2) same definition is used in the 8th contributing factor in the fragmented that VA ‘‘notify’’ a claimant of VA’s Edition (2004) and the 9th Edition processing of medical records. This inability to obtain certain evidence may (2009)), because that definition most proposed change would implement the be satisfied by either written or oral closely reflects the way VA and the U.S. Benefits Executive Council’s directive. notice. The court noted that ‘‘[i]t is Court of Appeals for Veterans Claims We omitted the Canal Zone from the certainly not unreasonable, in our view, (CAVC) apply the concept. See, for initially proposed definition of ‘‘State’’ for VA to retain the flexibility to provide example, Forshey v. West, 12 Vet. App. in § 5.1, because § 3.1(i) does not oral rather than written notice, as it is 71, 73–74 (1998) (‘‘ ‘Proximate cause’ is include the Canal Zone in its definition clear that under certain circumstances defined as ‘that which, in a natural of ‘‘State’’. However, 38 U.S.C. 101(20) oral notice might be the preferred or continuous sequence, unbroken by any defines ‘‘State’’ to include ‘‘For purpose more practicable option.’’ In addition, efficient intervening cause, produces of section 2303 and chapters 34 and 35 there may be other situations besides injury, and without which the result of this title, such term also includes the those involving section 5103A(b)(2) would not have occurred.’ ‘‘Black’s Law Canal Zone.’’ To correct this omission,

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we propose to revise the definition of to make this change to ensure that civil statute was ambiguous and the court’s ‘‘State’’ in proposed § 5.1 to include the infractions, while prohibited by law, do interpretation was not the only Canal Zone ‘‘for purposes of 38 U.S.C. not by themselves deprive an otherwise permissible interpretation of the 101(20), and 38 U.S.C. chapters 34 and entitled veteran to benefits. We now statute). 35’’. propose to incorporate this provision The commenter noted that the Federal We propose to add a definition of into § 5.1. Circuit found in Thomas that the statute ‘‘VA’’, as § 5.1, that is consistent with The second sentence of initially did not contain a standard of proof and current 38 CFR 1.9(b)(1) and 38 U.S.C. proposed § 5.661(a)(2) read: ‘‘For that VA had not, by regulation, imposed 101. example, injury, disease, or death is a standard of proof. See 423 F.3d at Regarding our initially proposed proximately caused by willful 1283–84. The Federal Circuit then definition of ‘‘willful misconduct’’, an misconduct if the act of willful found that the Board’s and the U.S. AM05 commenter suggested revising the misconduct results directly in injury, Court of Appeals for Veterans Claims’ last sentence of initially proposed disease, or death that would not have decisions to apply the preponderance of § 5.661(a)(1) from, ‘‘A mere technical occurred without the willful the evidence standard were supported violation of police regulations or other misconduct.’’ We have determined that by their stated reasons and bases. Id. at ordinances will not by itself constitute this statement is unnecessary because 1284–85. The commenter noted that the willful misconduct’’, to, ‘‘A mere § 5.1 already defines ‘‘proximately Nat’l Cable & Telecomms. Ass’n Court technical violation of police regulations caused’’, so we propose to remove the found that even if a court has or any local ordinances, including those example. established a standard of proof as a gap- under police, city or county authority, One commenter expressed the filling measure, an agency may still will not by itself constitute willful opinion that a VA determination of establish a different standard of proof to misconduct.’’ Another commenter ‘‘willful misconduct’’ is a quasi-criminal fill gaps in a statute by regulation if the expressed the opinion that the use of the determination. This commenter stated agency decides that the court’s word ‘‘other’’ before the word that the preponderance of the evidence determination of a standard of proof is ‘‘ordinances’’ may be misunderstood to standard is not appropriate in not in accordance with the agency’s refer to a state’s general police power to adjudicating a quasi-criminal policies or does not align with the make and enforce laws. We propose to determination. The commenter asserted agency’s perception of Congressional clarify the rule based on these that the preponderance of the evidence intent. comments for the reasons discussed standard of proof for willful misconduct VA does not equate administrative below. determinations was too low because a willful misconduct determinations with The definition of ‘‘ordinance’’ determination of willful misconduct quasi-criminal proceedings and includes city or county authority. The essentially bars a veteran or claimant decisions. VA administrative word ‘‘ordinance’’ is defined as, ‘‘An from receiving benefits based on the procedures for determining entitlement authoritative law or decree; esp., a veteran’s service. The commenter to benefits are non-adversarial and pro- municipal regulation.’’ ‘‘Black’s Law asserted that this deprived the veteran claimant, in contrast to criminal Dictionary’’ 1208 (9th ed. 2009). or claimants claiming entitlement based proceedings. Attempts to categorize the ‘‘Municipal’’ is defined as, ‘‘1. Of or on a veteran’s service of procedural due administrative entitlement decisions relating to a city, town or local process under the Fifth Amendment to made by VA as quasi-criminal government unit. 2. Of or relating to the the U.S. Constitution. The commenter proceedings characterize both the internal government of a state or expressed the opinion that VA should claimants and the VA administrative nation.’’ Id. at 1113. instead establish the clear and process incorrectly. While the In most municipalities, the police convincing evidence standard as the commenter does not fully explain what department establishes regulations standard of proof in making willful was meant by ‘‘quasi-criminal’’ relating to parking, street usage, and misconduct determinations. The proceedings, we note that unlike other similar civil issues. The use of the commenter noted that the U.S. Supreme criminal proceedings, VA has no phrase ‘‘police regulations’’ is intended Court has stated that a principal authority under these regulations to to express the idea that a violation of function of establishing a standard of fine, imprison, or otherwise impose these types of regulations will not be proof is ‘‘to allocate the risk of error punishment on a claimant. VA used as the grounds for a finding of between the litigants and to indicate the administratively decides entitlement to willful misconduct. Violations of these relative importance attached to the benefits in accordance with the duly regulations are ‘‘civil infractions’’. An ultimate decision.’’ Addington v. Texas, enacted statutes of Congress. We do not ‘‘infraction’’ is ‘‘[a] violation, usually of 441 U.S. 418, 423 (1979). follow the procedures used in either a rule or local ordinance and usually not The commenter acknowledged that criminal or civil courts. punishable by incarceration.’’ ‘‘Black’s VA had adopted the standard of proof A decision that a disability was the Law Dictionary’’ 850 (9th ed. 2009). A articulated by the U.S. Court of Appeals result of willful misconduct only civil infraction is ‘‘An act or omission for the Federal Circuit (Federal Circuit) prohibits service connection for the that, though not a crime, is prohibited in Thomas, 423 F.3d 1279. The disability or death incurred as a result by law and is punishable.’’ Id. Since commenter also noted that VA has the of the willful misconduct. Contrary to that term is not readily understood by authority to adopt a different standard the commenter’s assertion, a veteran or most of the general public, parenthetical notwithstanding the standard adopted a claimant claiming entitlement based explanations following the use of the by the Federal Circuit, as explained by on a veteran’s service does not lose term will clarify the meaning for most the Supreme Court in Nat’l Cable & entitlement to all benefits. A decision people. We propose to revise the last Telecomms. Ass’n v. Brand X Internet that willful misconduct caused a sentence of what was initially proposed Servs., 545 U.S. 967, 969–70 (2005) disability results in essentially the same § 5.661(a) to read, ‘‘Civil infractions (finding that an agency could, through consequences as a decision that an (such as mere technical violation of publication of a regulation, adopt an injury or disease was not incurred in police regulations or other ordinances) interpretation of a statute that was service. Service connection for that will not, by themselves, constitute different than the interpretation of the disability or death is not granted. In willful misconduct.’’ We are proposing same statute made by a court if the making a determination that the

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disability was due to willful between the words ‘‘evidence’’ and ‘‘evidence’’ should be defined as ‘‘all misconduct, the veteran or a claimant ‘‘must’’. The commenter was concerned the means by which any alleged matter claiming entitlement based on a that the proposed language would deter of fact, the truth of which is submitted veteran’s service is notified of the a deceased beneficiary’s survivor from to an adjudicator, is established or information or evidence needed to filing existing additional evidence in disproved.’’ The commenter went on to substantiate the claim, of the decision support of a claim for accrued benefits. state that, ‘‘Evidence includes the on the claim, and of their appellate However, because a claim for accrued testimony of witnesses, introduction of rights. benefits must be granted based on records, documents, exhibits, objects, or Additionally, there is no violation of evidence in the file on the date of death, any other probative matter offered for the Fifth Amendment through such additional evidence would not be purpose of inducing a belief in the application of the preponderance of the considered in deciding the claim. contention by the fact-finder’’ and that, evidence standard to willful misconduct Nevertheless, to avoid any potential ‘‘evidence is the medium of proof’’. The decisions. Since the commenter merely confusion we propose to add commenter opined that defining asserted a violation of the Fifth ‘‘submitted to reopen the claim’’ ‘‘evidence’’ would assist an Amendment without explaining how between ‘‘evidence’’ and ‘‘must’’. We unrepresented claimant in the use of any one particular standard propose to use ‘‘submitted’’ rather than understanding the term and would of proof could violate the due process ‘‘used’’ because the later implies that inform claimants that some materials he provision of the Fifth Amendment, we VA will always find that the evidence or she submitted would not be evidence are unable to respond more fully to this was new and material. (such as arguments, assertions, and comment and propose to make no We made additional revisions to the speculations). changes based on this comment. definition of ‘‘claim for benefits pending This commenter asserted that after we VA does not need to decide if the on the date of death’’ for both define ‘‘evidence’’, we should define commenter’s reasoning concerning readability and consistency purposes. ‘‘relevant evidence’’ and ‘‘probative adoption of a standard of proof differing One such revision is that we replaced evidence’’, as follows: from that found by the court in Thomas the initially proposed term ‘‘finally Relevant evidence means evidence having is correct. After reviewing the various disallowed claim’’ with ‘‘finally denied any tendency to make the existence of any standards of proof, we have determined claim’’ and reorganized the sentence fact that is of consequence to the that the preponderance of the evidence structure with respect to new and determination of the matter more probable or standard is the appropriate standard of material evidence. less probable than it would be without the proof to prove willful misconduct, evidence. except as otherwise provided by statute. § 5.2 Terms and Usage in Part 5 Probative evidence is evidence that tends to We provided our reasons for selecting Regulations prove a particular proposition or to persuade this standard of proof in the NPRM that 38 CFR part 3 uses both singular and a trier of fact as to the truth of an allegation. proposed this segment of part 5. See 71 plural nouns to refer to a single, The commenter asserted that this would FR 16470, Mar. 31, 2006. The regulated person. For example, enable the claimants to understand what preponderance of the evidence standard § 3.750(b)(2) refers to ‘‘a veteran with 20 evidence should be submitted in order provides that if the evidence or more years of creditable service’’, for the claimants to succeed with their demonstrates that it is more likely than while § 3.809(a) refers to ‘‘veterans with claims for benefits. not that a fact is true, the fact will be wartime service’’ (emphasis added). We propose to make no changes based considered proven. This is an This inconsistent usage could confuse on these comments. We do not believe appropriate standard to apply to the readers so we propose to use only that there is a significant need to define administrative decisions we propose to singular nouns to refer to a particular the referenced terms, and there is some make in connection with veterans’ regulated person. We propose to state in risk that such definitions would be benefits. previously reserved § 5.2 that a singular misinterpreted as limiting the types of We propose to move the definitions of noun that refers to a person is meant to items a claimant may file or that VA ‘‘accrued benefits’’, ‘‘claim for benefits encompass both the singular and plural will consider. Except as to claims based pending on the date of death’’, and of that noun. For example, the term ‘‘a on clear and unmistakable error, VA is ‘‘evidence in the file on the date of surviving child’’ would apply not only required to consider all material filed. death’’ from § 5.550 to § 5.1. A comment to a single surviving child, but also to See 38 U.S.C. 5107(b) (‘‘The Secretary to RIN 2900–AL71 ‘‘Accrued Benefits multiple surviving children. Where a shall consider all information and lay and Special Rules Applicable Upon provision is meant to apply only to a and medical evidence of record in a Death of a Beneficiary’’, raised questions group of people (for example, the case’’). Defining ‘‘evidence’’ as concerning the initially proposed division of benefits between a surviving suggested might discourage claimants definition of ‘‘accrued benefits’’. Based spouse and children), we will indicate from filing arguments or other on that comment, we made technical this by using a plural noun to refer to information and statements. revisions to clarify the definition, and the regulated group of people. Similarly, The dictionary definition of also made the following revisions. we will use a plural noun when ‘‘evidence’’ is ‘‘something that furnishes The last sentence of initially proposed referring to a specific, identified group proof.’’ ‘‘Merriam-Webster’s Collegiate § 5.550(d) (definition of ’’[c]laim for of people. See, for example, § 5.27, Dictionary’’ 433 (11th ed. 2006). VA benefits pending on the date of death’’) ‘‘Individuals and groups designated by does not use the word in a manner read, ‘‘[a]ny new and material evidence the Secretary of Defense as having different from this ordinary or natural must have been in VA’s possession on performed active military service.’’ definition: ‘‘When a word is not defined or before the date of the beneficiary’s by statute, we normally construe it in death.’’ One commenter, responding to § 5.3 Standards of Proof, and accord with its ordinary or natural RIN 2900–AL71 ‘‘Accrued Benefits and Comments on Definitions of Evidentiary meaning.’’ Smith v. United States, 508 Special Rules Applicable Upon Death of Terms U.S. 223, 228 (1993). This concept a Beneficiary’’, suggested that VA One commenter suggested that VA applies equally to regulations. Thus, it should clarify this sentence by inserting should include additional definitions in is not necessary to define words used in the phrase ‘‘used to reopen the claim’’ § 5.1. The commenter suggested that a regulation when the words are used in

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accord with their ordinary or natural of the other, or of the alternative’’, attempt to give any meaning to the meaning. The commenter’s suggested ‘‘Black’s Law Dictionary’’ 661 (9th ed. statutory terms ‘‘positive and negative definitions of ‘‘credibility’’, 2009)). evidence’’. The commenter asserted that ‘‘determination’’, ‘‘material’’, ‘‘matter’’, The commenter is correct that the these two statutory terms have known ‘‘proof’’, and ‘‘testimony’’ are likewise word ‘‘issue’’ is used in 38 U.S.C. ‘‘legal’’ meaning and that VA must not needed. 5107(b), but the word is also used in define ‘‘positive evidence’’ and The suggested definitions of ‘‘relevant other places in title 38, often with a ‘‘negative evidence’’ in order to give full evidence’’ and ‘‘probative evidence’’ are different meaning. See, for example, 38 force and effect to section 5107(b). also not necessary. As explained below, U.S.C. 5112(b)(6) and 5110(g). The word We did not define the terms ‘‘positive the definition of ‘‘competent evidence’’ ‘‘issue’’ is used within part 5 with at evidence’’ and ‘‘negative evidence’’ in will be helpful to claimants because VA least three different meanings. See, for initially proposed § 5.1 because we did may in individual cases inform the example, §§ 5.82(d), 5.103(e), 5.133(b), not use those terms in initially proposed claimant of the need for competent and 5.152. VA’s policy is to broadly § 5.3(b)(2), which implements section medical expert evidence on some issues. interpret 38 U.S.C. 5107(b), such that 5107(b). Instead, we described However, definitions that appear to the benefit of the doubt applies both to ‘‘evidence in support of’’ and ‘‘evidence delineate other categories of evidence, the ultimate ‘‘issue’’ in a case (for against’’ a matter. This interpretation of such as ‘‘relevant evidence’’ and example, whether to award benefits) but the statute is consistent with the clear ‘‘probative evidence’’ may be confusing also to individual issues of material fact and unambiguous meaning of the to claimants and appear to suggest (for example, whether a particular event statute. See, for example, Ferguson v. restrictions on the types of evidence occurred). Therefore, we propose to Principi, 273 F.3d 1072, 1076 (Fed. Cir. claimants may file or that VA will revise §§ 5.1 and 5.3 to refer, where 2001) (holding that section 5107(b) is consider. It is generally to the claimants’ appropriate, to both questions of fact ‘‘unambiguous’’ and upholding a advantage to file all information and and the resolution of issues. decision not to apply the benefit-of-the- evidence they have that have potential The same commenter urged VA to doubt-rule to a case where ‘‘there was bearing upon the issues in their claim. adopt a definition of the term more credible evidence weighing Introducing definitions of ‘‘relevant ‘‘presumption’’. In § 5.260(a) of our against the claim than supporting the evidence’’ and ‘‘probative evidence’’ proposed rule, ‘‘Presumptions of Service claim’’). We propose to make no might create confusion and discourage Connection for Certain Disabilities, and changes based on this comment. claimants from filing all information Related Matters’’, we clearly described In § 5.3(a), we propose to revise the and evidence that they might otherwise the meaning of the term in the veterans first sentence of the initially proposed file. benefits context: ‘‘A presumption of paragraph by adding ‘‘material to The same commenter urged VA to service connection establishes a deciding a claim’’. In response to adopt a certain definition of the term material fact (or facts) necessary to various comments concerning this ‘‘probative value of evidence’’, namely establish service connection, even when proposed regulation, we noted that ‘‘the tendency, if any, of the evidence to there is no evidence that directly while we had adequately stated the make any fact of consequence in the establishes that material fact (or facts)’’. general standards for proving facts and determination of the matter more or less 69 FR 44624, July 27, 2004. We resolving issues, we had not included probable than it would be without the therefore propose to make no changes the reason for proving a fact. evidence.’’ However, the commenter did based on this comment. Also in initially proposed § 5.3(a), not specifically state why VA should The same commenter urged VA to ‘‘Applicability’’, we stated, ‘‘This adopt a definition of that term, but adopt a definition of ‘‘rebuttal of a section states the general standards of focused instead on the suggestion that presumption’’. Section 5.3(c), which proof for proving facts and for rebutting VA define the distinct but related term states, ‘‘A presumption is rebutted if the presumptions. These standards of proof ‘‘probative evidence’’. For the same preponderance of evidence is contrary apply unless specifically provided reasons that we propose not to define to the presumed fact’’, in effect defines otherwise by statute or a section of this ‘‘probative evidence’’, we propose not to the term already so we decline to make part.’’ In reviewing the initially define ‘‘probative value of evidence’’. any changes based on this comment. proposed paragraph, we have decided to This commenter also suggested we The same commenter urged VA to clarify that ‘‘a section’’ means another adopt a definition of the word ‘‘issue’’ adopt a definition of ‘‘weight of [the] section besides § 5.3. We therefore as ‘‘a single, certain point of fact or law evidence’’, a term which was used in propose to change ‘‘a section’’ to that is important to the resolution of a initially proposed § 5.3(b)(1) and (3). We ‘‘another section’’. claim for veterans’ benefits.’’ The agree that such a definition would be Initially proposed § 5.3(b)(1) (now commenter noted that this word is used helpful to readers and we therefore § 5.3(b)(2)) stated, ‘‘Equipoise means in 38 U.S.C. 5107(b). The commenter propose to add the following definition that there is an approximate balance opined that because Congress used this in § 5.3(b)(1), ‘‘Weight of the evidence, between the weight of the evidence in word in the statute, we must define the means the persuasiveness of some support of and the weight of the word. The commenter similarly opined evidence in comparison with other evidence against a particular finding of that § 5.3(b), ‘‘Proving a fact or issue’’, evidence.’’ ‘‘Black’s Law Dictionary’’ fact, such that it is as likely as not that is confusing because we did not define 1731 (9th ed. 2009). With this addition, the fact is true.’’ One commenter the word ‘‘issue’’ in § 5.1. The initially proposed paragraphs (b)(1) objected to the use of the word commenter suggested that we used the through (5) are redesignated as ‘‘equipoise’’ in § 5.3(b). The commenter words ‘‘issue’’ and ‘‘fact’’ as unrelated paragraphs (b)(2) through (6), noted that this word does not appear in concepts. The commenter then reasoned respectively. 38 U.S.C. 5107(b), ‘‘Claimant that, since the statute did not use the One commenter noted that 38 U.S.C. responsibility; benefit of the doubt’’. word ‘‘fact’’, VA may not have authority 5107(b) contains the language The commenter expressed the opinion to include that word in the regulations, ‘‘approximate balance of positive and that VA should remove this word and noting the canon of ‘‘expressio unius est negative evidence’’ and that the its definition and replace the word and exclusio alterius’’ (‘‘to express or regulation that VA proposed to adopt to definition with the exact language used include one thing implies the exclusion implement section 5107(b) did not in 38 U.S.C. 5107(b). The commenter

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noted that ‘‘in attempting to define the the weight of the evidence against a commenter suggests adding language to meaning of the term ‘equipoise’, the particular finding of fact’’. We therefore ensure that the adjudicator does not initially proposed regulation states that propose to remove the language ‘‘such equate the new and material evidence equipoise means there is an that . . .’’ from this paragraph. requirement to the evidence ‘approximate balance between the One commenter urged VA to use the requirements needed to grant the claim. weight of the evidence in support of and current language of 38 CFR 3.102 in We disagree that a VA decisionmaker the weight of the evidence against a proposed § 5.3(b)(2). The commenter would apply this sentence as requiring particular finding of fact, such that it is asserted that the use of the term that the new and material evidence to as likely as not that the fact is true.’ ’’ ‘‘equipoise’’ in initially proposed reopen a claim also be sufficient to grant The commenter felt that by omitting the § 5.3(b)(2) is adversarial and that the the claim. To the contrary, when read in word ‘‘equipoise’’ and its definition, VA proposed rule would ‘‘restrict conjunction with initially proposed would avoid confusion and be [veterans’] ability to put forth the best § 5.3 (b)(2) (now § 5.3 (b)(3)), ‘‘Benefit of consistent with the governing statute. evidence and challenge the credibility the doubt rule’’, this sentence makes it We propose to make no changes based [of] evidence which the VA accepts or very clear that a lower standard of proof on this comment. It is not necessary to denies.’’ is applied for reopening a claim than for use the exact language Congress used in As discussed in the preamble to the granting a claim. We therefore propose drafting a statute in the wording of the NPRM, we are not substantively to make no changes based on this regulations we promulgate. The changing the provisions in current comment. Secretary has been directed by Congress § 3.102. Instead, we are rewording and One commenter objected to the to ‘‘prescribe all rules and regulations reorganizing them to make them easier general format of initially proposed which are necessary or appropriate to for the reader to understand. We § 5.3(b)(5) (now § 5.3(b)(6)) because the carry out the laws administered by the disagree that the changes described in commenter asserted that there was a Department.’’ 38 U.S.C. 501(a). We the NPRM and in this rulemaking make lack of emphasis on the different chose to use the word ‘‘equipoise’’ these provisions adversarial, and we standard of proof used to determine because as used and defined in § 5.3, it therefore propose to make no changes whether evidence is new and material. is a clear and concise term and has the based on this comment. The commenter asserted that the last same meaning as traditionally applied Although we decline to make the sentence of the paragraph should be to the phrase used in 38 U.S.C. 5107(b), changes to initially proposed § 5.3(b)(2) rewritten and moved to the front of the ‘‘approximate balance of positive and (now § 5.3(b)(3)) suggested by the paragraph to add emphasis to the negative evidence’’. Our use of this commenter, in reviewing the first two concept that the higher standard of word is consistent with the governing sentences of that paragraph, we have proof does not apply when determining statute. determined that they can be clarified. if the evidence is new and material. Another commenter asserted that our Specifically, the initially proposed We agree and we propose to change definition of ‘‘equipoise’’ in initially sentences could be misread to imply the sentence to read, ‘‘The standards of proposed § 5.3(b)(1) (now § 5.3 (b)(2)) that evidence can be in equipoise proof otherwise provided in this section accurately restates the third sentence of regarding an issue and at the same time do not apply when determining if § 3.102, but fails to accurately restate the tend to prove or disprove a claim. As evidence is new and material, but do second sentence, which emphasizes and stated in 38 CFR 3.102, where the apply after the claim has been makes clear that the balances are always evidence is in equipoise, it ‘‘does not reopened.’’ We propose to place this to be resolved in favor of the veteran. satisfactorily prove or disprove the sentence as the first sentence of that The same commenter felt that the claim’’. We therefore propose to remove paragraph, now designated as sentence in initially proposed § 5.3(b)(2) the potentially confusing language § 5.3(b)(6), to add emphasis to this (now § 5.3(b)(3)) that read, ‘‘However, if regarding ‘‘support’’ of a claim and provision. the evidence is in equipoise and a fact ‘‘tend[ing] to disprove a claim’’, and One commenter noted that in § 5.3(c), or issue would tend to disprove a claim, combined the two sentences into one. we stated that, ‘‘A presumption is the matter will not be considered The new sentence now reads, ‘‘When rebutted if the preponderance of proven’’, contradicts the benefit of the the evidence is in equipoise regarding a evidence is contrary to the presumed doubt rule because the rule must particular fact or issue, VA will give the fact.’’ The commenter stated that in 38 ‘‘always be applied in favor of the benefit of the doubt to the claimant and U.S.C. 1111, the evidence to rebut the veteran’’. We propose to clarify the the fact or issue will be resolved in the presumption of sound condition when statement of the benefit of the doubt claimant’s favor.’’ accepted and enrolled for service is rule by revising the first sentence One commenter noted that the specified as clear and unmistakable § 5.3(b)(3) to now state, ‘‘When the sentence in initially proposed § 5.3(b)(3) evidence, a standard higher than a evidence is in equipoise regarding a (now (b)(4)) lacked parallelism. We preponderance of evidence. The particular fact or issue, VA will give the agree and propose to change the commenter recommended inserting the benefit of the doubt to the claimant and wording by adding the words ‘‘the phrase ‘‘Except as otherwise provided’’ the fact or issue will be resolved in the weight of’’ before the words ‘‘the at the beginning of the section. claimant’s favor.’’ evidence against it.’’ We agree that the standard in § 5.3(c) In reviewing initially proposed One commenter objected to the applies to rebutting presumptions § 5.3(b)(1) (now § 5.3(b)(2)), we have sentence in initially proposed § 5.3(b)(5) unless an applicable statute provides a determined that the phrase ‘‘such that it (now § 5.3(b)(6)): ‘‘VA will reopen a different standard, such as in the is as likely as not that the fact is true’’ claim when the new and material example provided by the commenter. might cause a reader to mistakenly evidence merely raises a reasonable However, we already provided for the believe that this is an additional possibility of substantiating the claim.’’ application of different standards in requirement for triggering the This commenter asserted that the § 5.3(a) by stating, ‘‘These standards of ‘‘reasonable doubt’’ doctrine, over and ‘‘reasonable possibility of substantiating proof apply unless specifically provided above the requirement that there be an the claim’’ portion could be read by an otherwise by statute or a section of this ‘‘approximate balance between the adjudicator as requiring sufficient part.’’ Since the regulations already weight of the evidence in support of and evidence to grant the claim. This address the point raised by the

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commenter, we propose to make no during service may indicate that the merits, and on the merits of the case as changes based on this comment. veteran was not disabled during service. a whole.’’ Several commenters noted that under An absence of evidence may also be The commenter did not explain how 38 U.S.C. 1113(a), a presumption can be used to rebut a presumption. The U.S. our definitions of ‘‘competent expert rebutted only when ‘‘there is affirmative Court of Appeals for the Federal Circuit evidence’’ and ‘‘competent lay evidence to the contrary.’’ The endorsed this view. Maxson v. Gober, evidence’’ have the adverse effects he commenters stated that the ‘‘affirmative 230 F.3d 1330 (2000) (holding that VA predicts, and we disagree that they evidence’’ requirement should be may properly consider a veteran’s entire would have such effects. VA has inserted into § 5.3(c). We disagree with medical history, including absence of applied substantially similar definitions the commenters. There are many complaints, in determining whether since 2001. 38 CFR 3.159(a)(1) and (2); statutes that govern the rebuttal of presumption of aggravation is rebutted). see 66 FR 45630, Aug. 29, 2001. These presumptions, see, for example, 38 This evidence is generally one of the definitions have not caused any such U.S.C. 1111, 1132, and 1154(b), but the weaker forms of evidence, but it is adverse effects, and the changes we are ‘‘affirmative evidence’’ requirement of nevertheless important to recognize the making to the definitions in § 5.1 will section 1113(a) affects only role that it may play in certain cases, not either. We therefore propose to presumptions related to diseases that particularly where there is little make no changes based on this are covered by proposed § 5.260(c). (We evidence to support a claim. Hence, we comment. note that section 1113 does not affect propose to add § 5.3 (e), which states, One commenter expressed concern the ALS presumption, which is also ‘‘VA may consider the weight of an that by changing the definitions of covered by § 5.260(c)). Hence, the absence of evidence in support of, or ‘‘competent medical evidence’’ to affirmative evidence requirement against, a particular fact or issue.’’ ‘‘competent expert evidence’’ and appears in § 5.260(c), but not in the One commenter expressed concern ‘‘competent lay evidence’’ we were general rule that applies except as about how a VA decisionmaker would impermissibly amending § 3.159, provided otherwise. read § 5.3(d), ‘‘Quality of evidence to be ‘‘Department of Veterans Affairs We agree with these assertions to the considered’’, in conjunction with § 5.1 assistance in developing claims.’’ The extent that we should retain the phrase that defines ‘‘competent lay evidence’’. commenter expressed the concern that since these terms were originally ‘‘affirmative evidence’’ and propose to The commenter asserted that if he or she revise § 5.260(c)(2) to include the phrase adopted as part of that regulation, a determined that the evidence did not fit ‘‘affirmative evidence’’. We propose to change in the definitions would amend within the definition of competent lay revise § 5.260(c)(2), by replacing ‘‘Any § 3.159 without providing public notice evidence or that lay evidence is evidence . . .’’ with ‘‘Affirmative and the opportunity for public comment generally not competent, he or she evidence’’ in the beginning of the as required by 5 U.S.C. 553. would be more likely to assess the sentence. We also note that 38 U.S.C. The commenter’s concerns relate to evidence as adverse to the veteran. 1116(f) requires ‘‘affirmative evidence’’ the removal of part 3 when we adopt to rebut the presumption of exposure to The commenter’s assumption is part 5. This rulemaking will not affect herbicides in the Republic of Vietnam incorrect. Competent lay evidence may such a removal; nor will this rulemaking and so we now propose to insert that be neutral or may be favorable to the affect claims currently being term into § 5.262(d). claimant. Such evidence may also be adjudicated under part 3. The We also propose to revise § 5.3(c) by probative, depending on the claim to be definitions in § 5.1 only apply to part 5, adding a second sentence after the first adjudicated. We also do not agree that not to part 3. Hence, there is no basis sentence, that states, ‘‘In rebutting a a VA decisionmaker would determine for a concern that any action in this presumption under § 5.260(c)(2), that lay evidence was generally not rulemaking will affect a part 3 rule. affirmative evidence means evidence competent. We have provided for the One commenter opined that the supporting the existence of certain determination of what makes lay definitions of ‘‘competent expert facts.’’ We have chosen this definition evidence competent in the definition in evidence’’ and ‘‘competent lay instead of one of the definitions proposed § 5.1. A VA decisionmaker’s evidence’’ should be revised since recommended by the commenters application of these provisions will lead neither definition focused on the because this is consistent with the the adjudicator to determine what is relevance of the evidence. The definition of ‘‘affirmative’’ found in competent lay evidence and what is not. commenter also asserted that neither ‘‘Black’s Law Dictionary’’, 68 (9th ed. We propose to make no changes based definition correctly described 2009). on this comment. ‘‘competent expert evidence’’ or In a related matter, comments on both In objecting to our initially proposed ‘‘competent lay evidence’’. The RIN 2900–AL87, ‘‘General Provisions’’, definitions of ‘‘competent expert commenter believed that treatises, 71 FR 16464, Mar. 31, 2006, and on RIN evidence’’ and ‘‘competent lay medical or scientific articles, and other 2900–AL70, ‘‘Presumptions of Service evidence’’, one commenter wrongly writings are not ‘‘competent expert Connection for Certain Disabilities, and asserted that there are no such evidence’’ because they are not based on Related Matters’’, 69 FR 44614, July 27, definitions in current VA regulations. In the author’s personal knowledge of the 2004, indicated the need for our rules to fact, as stated in the preamble of RIN specific facts of the veteran’s particular address the role of ‘‘negative’’ evidence, 2900–AL87, these definitions are based case. by which we mean an absence of on similar definitions in 38 CFR Although we do not agree with the evidence. An absence of evidence may 3.159(a)(1) and (2). suggestion that treatises, medical and be considered as evidence in support of, The same commenter asserted that scientific articles, and other writings of or weighing against, a claim. For defining competent evidence would this type may never be ‘‘competent example, an absence of evidence of ‘‘cause the claims of veterans to be pre- expert evidence’’, the commenter raises signs or symptoms of a particular judged by adjudicators and foster an a valid point. Treatises and similar disability prior to service would support adversarial climate in the claims writings may be ‘‘competent’’ in the a veteran’s claim that he incurred the process.’’ The commenter urged that, sense that they state findings and disability during service. On the other ‘‘Rather, all the evidence of record in opinions based on specialized training hand, a lack of symptoms or complaints each case should be judged on its own or experience and personal knowledge

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of the facts on which such findings and in part’’ after ‘‘based’’ because an expert when it is ‘‘necessary to make a decision opinions are based. However, it is opinion may also be based on the on the claim’’. Under this duty, VA misleading to equate treatises and specific facts of a case. An example of regularly conducts specialized medical similar writings with the types of expert such an opinion would be a doctor’s examinations of veterans’ disabilities evidence ordinarily provided in VA opinion that general medical principles and often requests medical opinions on benefit claims. That is because medical indicate that a particular injury would specific questions. If VA’s adjudicator treatises ordinarily recite facts or not likely have been aggravated under finds that such an exam or opinion is opinions derived apart from a particular the facts of a particular case. See inadequate, he or she returns the case to veteran’s case and thus are not based on Emenaker v. Peake, 551 F.3d 1332, the health-care provider and requests for personal knowledge of the facts of the 1335–37 (Fed. Cir. 2008). an adequate one to be provided. veteran’s case. The U.S. Court of The initial NPRM to § 5.3 explained However, VA must also ‘‘consider all Appeals for Veterans Claims has noted why part 5 will not repeat the fifth information and lay and medical that treatise evidence is often too sentence of § 3.102. 71 FR 16464 (Mar. evidence of record in a case’’. 38 U.S.C. general or speculative to provide 31, 2006). Section 5.3 would also not 5107(b). Another statute requires the significant evidence concerning the repeat the fourth sentence. It is Board of Veterans’ Appeals to review cause of a particular veteran’s disability. unnecessary because, like the fifth appeals to the Secretary ‘‘based on the See Sacks v. West, 11 Vet. App. 314, sentence, it confusingly elaborates the entire record in the proceeding and 316–17 (1998). Citing treatises as an idea of ‘‘approximate balance’’ of upon consideration of all evidence and example of competent expert evidence evidence, which 5.3(b)(2) through (5) do material of record.’’ 38 U.S.C. 7104(a). may mislead claimants to the belief that well without the confusing language of This statute indicates that evidence is such treatises are the equivalent of the fourth or fifth sentences of § 3.102. an element of a person’s entire VA record. The statute prescribing that VA medical opinions based on the specific § 5.4 Claims Adjudication Policies facts of their case. While treatise considers the ‘‘places, types, and evidence may in some situations be One commenter asserted that VA circumstances’’ of a veteran’s service probative of the fact to be proved, and gives too much weight to medical exam when deciding a claim for service must always be considered by VA when reports prepared by VA doctors and connection prescribes that VA consider presented in a case, we do not consider insufficient weight to medical exam ‘‘all pertinent lay and medical it helpful to cite such writings as reports prepared by a veteran’s own evidence’’. 38 U.S.C. 5104(a). Although representative examples of competent doctors. The commenter cited the section 5104(a) could be interpreted to expert evidence. Thus, we propose to example of VA giving more weight to distinguish evidence from other revise the definition as urged by the the report of a VA doctor who examined documents in the record, VA regulations commenter by removing the reference to him for less than an hour than to the demonstrate that our actual practice is treatise evidence in the definition of medical records from his treating doctor to review the entire record in every ‘‘competent expert evidence’’. covering a period of over 5 years. The claim. The regulation implementing the We propose not to revise the commenter asserted that VA’s over- benefit of the doubt rule of 38 U.S.C. definitions to include a statement reliance on its own medical exams is 5107(b) provides for ‘‘careful concerning the relevancy of the ‘‘VA policy’’ but is not ‘‘sound medical consideration of all procurable and evidence. The relevance of the evidence practice’’. The commenter further assembled data’’ and of ‘‘the entire, depends on the facts in each case and asserted that when a VA medical exam complete record’’. 38 CFR 3.102. is to be determined on a case-by-case is ‘‘poorly conducted and documented’’, Therefore, in addition to considering basis by the VA employee charged with VA orders a second exam rather than VA medical exams and opinions, VA making the decision on the claim. rely on the treating doctor’s records to weighs and considers all other medical One commenter urged VA to define decide the claim. The commenter urged evidence, including that produced by a ‘‘competent evidence’’ in part 5 as, VA to ‘‘establish a level of proof which veteran’s treating physician. ‘‘evidence that has any tendency to meets the balance test of both patient We note that 38 CFR 3.303(a) only make the existence of any fact that is of history and proof of medical condition’’ prescribes that VA decide claims for consequence to the determination of the and not rely on ‘‘an arbitrary, ‘snapshot’ service connection ‘‘based on review of matter more probable or less probable exam conducted in a VA hospital the entire evidence of record’’ and there than it would be without the evidence.’’ meaning more than years of records is no rule in part 3 that specifically This suggested definition is actually from the veteran’s regular physician(s).’’ implements 38 U.S.C. 5107(b). We more a definition of ‘‘probative We decline to make any changes therefore propose to add a new sentence evidence’’ than ‘‘competent evidence’’. based on this comment in the manner in at the beginning of § 5.4(b) stating, ‘‘VA In fact, this same commenter urged VA which VA weighs medical evidence. VA will base its decisions on a review of the to define ‘‘probative evidence’’ as often gives significant weight to an entire record.’’ We use the term ‘‘entire ‘‘evidence that tends to prove a examination conducted, or a medical record’’ because it is unclear whether particular proposition or to persuade a opinion provided by, a VA health care ‘‘entire evidence of record’’ means all of trier of fact as to the truth of an provider because they follow set the evidence of record, or the entire allegation.’’ Since the suggested procedures designed to elicit record. The evidence in a VA claims file definition of competent evidence information relevant to the particular is only part of the entire record concerns evidence’s probative value claim. However, as stated in 38 CFR comprising the claims file. Our language rather than its competence, we propose 3.326(b), ‘‘Provided that it is otherwise resolves the ambiguity in favor of the to make no changes based on the adequate for rating purposes, any more inclusive meaning, which is comment. hospital report, or any examination consistent with current VA practice. In our initially proposed definition of report, from any government or private Because § 5.4(b) would clearly state that competent expert evidence, we stated, institution may be accepted for rating a ‘‘VA will base its decisions on a review ‘‘Expert evidence is a statement or claim without further examination.’’ of the entire record’’, we believe it opinion based on scientific, medical, Under 38 U.S.C. 5103A(d), VA must would be redundant and possibly technical, or other specialized provide a medical examination or confusing to restate this principle in knowledge.’’ We propose to add ‘‘all or medical opinion in all disability claims specific sections in part 5 (as does part

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3). We therefore propose to remove such in proposed § 5.20, ‘‘Dates of periods of be construed as narrowing the scope of provisions from §§ 5.269(e), (f)(1) and war’’, as there are veterans and the regulation by excluding aggravation. (2), and 5.343. In order to incorporate dependents who may still be alive and Therefore, we now propose to replace the court’s holding in Bell v. Derwinski, eligible for benefits based on military ‘‘that occurred’’ with ‘‘incurred or 2 Vet. App. 611 (1992), we propose to service during this period. aggravated’’ in § 5.24(c)(1). add the phrase ‘‘including material While we appreciate the commenter’s pertaining to the claimant or decedent, concern, because there are no veterans § 5.27 Individuals and Groups That in a death benefit claim, that is within or surviving spouses of the Mexican Qualify as Having Performed Active VA’s possession and could reasonably Border Period on VA’s compensation Military Service for Purposes of VA be expected to be a part of the record’’ and pension rolls and only one Benefits Based on Designation by the to the end of that sentence. surviving dependent (a child), we Secretary of Defense propose to delete the provisions related § 5.5 Delegations of Authority to this period of war and refer regulation The official names of groups of We propose to add § 5.5, ‘‘Delegations users to the applicable statutory civilians who, pursuant to section 401 of authority’’, to this initially proposed provisions concerning this earlier of Public Law 95–202, have been segment. This regulation was period of war. This deletion would not designated by the Secretary of Defense inadvertently not included in the affect benefit entitlement in any way. as having performed active military initially proposed rule. These Should the occasion arise, VA will service for VA benefit purposes are provisions are the same as § 3.100, adjudicate any new claim using the listed alphabetically in proposed ‘‘Delegations of authority’’, reorganized statutory definition of this earlier period § 5.27(b). to make them easier to read. We also of war. See 38 U.S.C. 101(30). Such groups apply for status as propose to replace the § 3.100(a) The table in § 5.20 was published as having performed active military service language, ‘‘. . . entitlement of claimants a proposed rule using the terms ‘‘armed to benefits under all laws administered forces’’ and ‘‘active military, naval, or using group names that, as nearly as by the Department of Veterans Affairs air service’’. For consistency, we possible, precisely identify the members governing the payment of monetary propose to capitalize ‘‘Armed Forces’’ of the group and the service they want benefits to veterans and their and change ‘‘active military, naval, or recognized. In fact, when a favorable dependents . . .’’ with ‘‘entitlement to air service’’ to ‘‘active military service’’. determination is made, the Secretary’s benefits under part 5’’. We propose to Federal Register notice is almost always § 5.22 Service VA Recognizes as Active make this change because part 5, like phrased in terms of ‘‘service of the Duty part 3, includes benefits which do not group known as’’, followed by the involve monetary payments. These In our NPRM, we invited comments group’s official name. include a grant of service connection for on ‘‘whether, and to what extent, VA In the NPRM, we initially proposed to a veteran’s disability rated 0 percent and should recognize military duty for revise some of the group names for certification of loan guaranty benefits special work as active duty for VA clarity and readability. However, we for a surviving spouse. Lastly, we purposes.’’ 69 FR 4822, Jan. 30, 2004. have determined that this could cause One of the commenters urged that VA propose to omit the reference to the confusion that a group other than the recognize active duty for special work. ‘‘Compensation and Pension Service’’ original was determined to have Subsequent to that publication, (used in § 3.100(a) and now subdivided performed active military service. Such into the ‘‘Compensation Service’’ and however, additional issues have arisen which require closer coordination than confusion can be avoided by strictly ‘‘Pension and Fiduciary Service’’) is a adhering to the official names of the subdivision of the Veterans Benefits we previously anticipated between VA and the Department of Defense. When groups, and we now propose to revise Administration, and the reference is § 5.27(b) to reflect the original group therefore unnecessary. that coordination has been completed, we will publish a separate NPRM on the names exactly as they were provided to VII. Subpart B: Service Requirements characterization of active duty for VA by the Secretary of Defense. for Veterans AL67 special work. Hence, we propose not to § 5.28 Other Groups Designated as In a document published in the revise § 5.22 to address the recognition Having Performed Active Military Federal Register on January 30, 2004, of active duty for special work. Service we proposed to amend VA regulations § 5.24 How VA Classifies Duty governing service requirements for Performed by Armed Services Academy In reviewing initially proposed § 5.28, veterans, to be published in a new 38 Cadets and Midshipmen, Attendees at we determined that we mistitled it. This CFR part 5. See 69 FR 4820. The title of the Preparatory Schools of the Armed section refers only to groups, not this proposed rulemaking was, ‘‘Service Services Academies, and Senior Reserve individuals and we have retitled it Requirements for Veterans’’ (RIN 2900– Officers’ Training Corps Members accordingly. AL67). We provided a 60-day comment period that ended on March 30, 2004. Current 38 CFR 3.6(c)(4) refers to § 5.31 Statutory Bars to VA Benefits We received submissions from four ‘‘deaths and disabilities resulting from In initially proposed § 5.31(c)(4), we commenters: Disabled American diseases or injuries incurred or defined the acronym ‘‘AWOL’’ as Veterans, Vietnam Veterans of America, aggravated after September 30, 1982, ‘‘absence without official leave’’. and two members of the general public. and . . . deaths and disabilities resulting from diseases or injuries However, in the Uniform Code of § 5.20 Dates of Periods of War incurred or aggravated before October 1, Military Justice (10 U.S.C. 886) that One commenter expressed satisfaction 1982’’. In initially proposed § 5.24(c)(1) particular offense is called ‘‘absence with the progress of the Regulation (based on § 3.6(c)(4)), we proposed to without leave’’, and the word ‘‘official’’ Rewrite Project and offered praise for replace the phrase ‘‘incurred or is not used. Therefore, for purposes of proposed RIN 2900–AL67. The aggravated’’ with the term ‘‘that consistency and clarity, we propose to commenter was pleased with the occurred’’. Although it was not our delete the word ‘‘official’’ from inclusion of the Mexican Border Period intention, the use of ‘‘occurred’’ could § 5.31(c)(4).

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§ 5.39 Minimum Active Duty Service of 10 percent or more disabling has been There are three types of service that Requirement for VA Benefits assigned, a person is forever excluded qualify as active military service: (1) Initially proposed § 5.39(c)(2) stated, from having to satisfy the minimum Service on active duty, (2) Service on ‘‘If it appears that the length of service active duty service requirements. We active duty for training during which an requirement may not be met, VA will cannot agree. injury or disease is incurred or Under 38 U.S.C. 5303A, the minimum request a complete statement of service aggravated, or (3) Service on inactive active duty service requirements must to determine if there are any periods of duty training during which an injury is be satisfied in order for a person active military service that are required incurred or aggravated, or during which discharged or released from a period of to be excluded under paragraph (e) of the person suffers an acute myocardial active duty to be eligible for, or entitled this section.’’ After reviewing this infarction, a cardiac arrest, or a to, any benefit based on that period of cerebrovascular accident. See 38 U.S.C. paragraph to respond to a public active duty, unless a person is a member 101(24). Since section 5303A, by its comment, we propose to correct a of one of the excluded groups. Under terms, applies only to veterans who typographical error (by changing the section 5303A(b)(3)(C), a person ‘‘who served on active duty, it does not apply reference to paragraph ‘‘(e)’’ to ‘‘(d)’’) has a disability that the Secretary has to veterans who performed active and to clarify the paragraph to improve determined to be compensable under military service under the provisions of readability. chapter 11 of this title’’ meets the § 5.21(a)(4) or (5). We therefore propose In § 5.39(d)(4), we initially proposed minimum active duty service to revise initially proposed § 5.39(d) to to exclude any person who has a requirement. The statute uses the add two other categories of persons compensable disability under 38 U.S.C. present tense, ‘‘has’’ when referring to excluded from the minimum active duty chapter 11 from the minimum active that disability, which means the veteran service requirements: Persons who duty requirement. A disability is trying to show that he or she qualifies performed active military service under compensable if VA rates it as 10 percent under section 5303A(b)(3)(C) must the provisions of § 5.21(a)(4) or (5). or more disabling according to the currently have a compensable disability. In reviewing initially proposed § 5.39 Schedule for Rating Disabilities in part We also note that the current regulation in relation to the comment discussed 4 of this chapter. One commenter on this point, § 3.12a(d)(3), already above, we discovered that we asserted that it would be wrong to requires a current compensable inadvertently omitted a phrase discontinue the entitlement of a veteran disability to qualify for this exclusion. contained in current § 3.12a(b): ‘‘based who did not meet the minimum active Section 5.39 does not, in any way, on that period of active service’’. To duty requirements, but was awarded an change the scope of this exclusion. For correct that omission, we propose to initial temporary 100 percent rating these reasons, we propose not to make revise § 5.39(a) accordingly. under 38 CFR 4.29 or 4.30, which was any changes on minimum active duty In initially proposed § 5.39, we subsequently reduced to a service requirements based on this included proposed paragraphs (f)(2)(iv) noncompensable (0 percent) rating. comment. and (v). Based on our review of the Likewise, any veteran lacking the Upon reviewing § 5.39(d)(4) in proposed rule, we noted that this was a minimum active duty requirements who relation to this comment, we numbering error. Proposed paragraphs had a compensable disability, but a determined that it was appropriate to (f)(2)(iv) and (v) should have been subsequent decision reduced the rating clarify the regulation consistent with the numbered (f)(2)(iii) and (iv) respectively to 0 percent, should not lose above discussion. We therefore propose because the proposed regulation did not entitlement. This commenter agreed that to replace the phrase ‘‘VA determines to have a paragraph (f)(2)(iii). Instead, it disability ratings should fluctuate with be’’ with ‘‘is currently’’ in this mistakenly skipped from (f)(2)(ii) to the severity of the disability, but that paragraph. This will ensure that readers (f)(2)(iv). We propose to correct this eligibility, once established, should not understand that the regulation requires error. be revoked in such cases. that a person have a currently Under 38 U.S.C. 5303A(b)(1), a person compensable disability to qualify for the Comments Outside the Scope of RIN who initially enters service after paragraph (d)(4) exclusion. 2900–AL67 September 7, 1980, must be discharged One commenter contended that 38 One person commented with or released after completing 24 months U.S.C. 5303A pertains only to those reference to RIN 2900–AL67. The of continuous active duty or the full persons who are veterans by virtue of comments related to the definition of period for which such person was called having served on active duty. This ‘‘Service in the Republic of Vietnam’’, to active duty to be eligible for, or be commenter asserted that a person, who and to the so-called Bluewater sailors. entitled to, any benefit administered by obtained veteran status because an These comments are outside the scope VA based upon the length of active duty injury or disease was incurred or of the proposed rule published under service. Section 5303A(b)(3)(C) excludes aggravated during active duty for RIN 2900–AL67, but relate to another those persons from the minimum active training, or because an injury was NPRM, RIN 2900–AL70. We discussed duty service requirements who have a incurred or aggravated during inactive these comments together with the other disability that the Secretary has duty training, is exempt from the comments received in connection with determined to be compensable under provisions of section 5303A. The RIN 2900–AL70. chapter 11 of this title. Section commenter alleged that the initially We also received a comment that was 5.39(d)(4) clarifies the term proposed rule does not clarify that these not directed at any particular proposed ‘‘compensable’’ to include veterans persons are not required to have a rule, but we thought it would be most receiving special monthly compensation compensable disability to qualify for appropriately addressed in this portion under 38 CFR 3.350, as well as those general benefits under title 38. of the proposed rule. The commenter receiving a 10 percent rating for Upon a closer review of section was concerned that National Guard full multiple 0 percent disabilities under 38 5303A and the definitions in 38 U.S.C. time active duty members were not CFR 3.324. 101, we agree with the commenter. To considered veterans unless they were The commenter’s position appears to be a veteran, a person must have ‘‘active injured on duty. be that once service connection has military, naval, or air service’’, referred The commenter is correct. Persons been established and a disability rating to in part 5 as ‘‘active military service’’. who serve full time in the National

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Guard under section 316, 502, 503, 504, VIII. Subpart C: Adjudicative Process, benefit. We therefore propose to revise or 505 of title 32 are on active duty for General initially proposed paragraph (b) by replacing the word ‘‘dependent’’ with training and are not considered veterans VA Benefit Claims AM16 under title 38, VA’s controlling statutes, the word ‘‘survivor’’. unless they are disabled by an injury or In a document published in the We also propose to revise paragraph disease that was incurred or aggravated Federal Register on April 14, 2008, we (b) by replacing the word ‘‘forward’’ in during such duty. If the law is clear and proposed to revise VA regulations the first sentence with ‘‘furnish’’ and governing benefit claims. 73 FR 20136. unambiguous, VA is bound by it. replacing ‘‘for execution by or on behalf We provided a 60-day comment period of’’ with ‘‘to’’. As revised, the sentence Congress has spoken clearly about who that ended June 13, 2008. We received states that, ‘‘VA will furnish the may be considered a veteran for VA submissions from two commenters: appropriate application to any purposes. See 38 U.S.C. 101(2) and (24). Center for Plain Language and a member survivor’’. ‘‘Furnish’’ is a more accurate Under such circumstances, the of the general public. word for supplying the survivor an commenter’s only remedy would be a One commenter criticized our use of application and it is consistent with change of statutory law. No change in the passive voice and overly long paragraph (a), which also uses the word regulations can be made based on this sentences in the initially proposed ‘‘furnish’’. The initially proposed rule comment. rulemaking. Based on this comment, we stated that VA will forward the propose to revise all of the proposed Changes in Terminology for Clarity and/ application ‘‘for execution by or on regulations to use the active voice and behalf of’’ a dependent. In this or Consistency shorter sentences whenever possible or regulation, it is surplus to state that the For the convenience of readers and for appropriate. application is ‘‘for execution’’. Although economy of language, we propose to In addition to the specific changes VA provides applications so claimants spell out the full name of each VA discussed below, we propose to revise can execute them, the rules about what the regulations proposed in NPRM, RIN program or benefit the first time we use to do with an application are more 2900–AM16 to help improve clarity and it in any part 5 regulation, and to appropriate to the regulations about consistency with other part 5 filing claims. In the same sentence, we abbreviate it thereafter. For example, the regulations. have changed the general reference to death benefit payable to a surviving § 5.50 Applications VA Furnishes ‘‘such benefits’’ to name the benefits spouse, child, or dependent parent that a dependent could possibly receive, based on death in service or due to a Initially proposed § 5.50(a) stated, for example, death pension or service-connected disability is officially ‘‘Upon request in person or in writing, dependency and indemnity titled ‘‘dependency and indemnity VA will furnish the appropriate compensation. compensation’’. That benefit name is application to a person claiming or Additionally, we propose to revise the quite cumbersome when it is repeated applying for, or expressing intent to phrase, ‘‘If it is not indicated’’, which several times within a regulation. The claim or apply for, benefits under the appeared at the beginning of the second abbreviation or acronym ‘‘DIC’’ is much laws administered by VA.’’ Based on sentence of the initially proposed rule, easier to use and improves the our review, we propose to remove ‘‘in to read, ‘‘If the available evidence does readability of a regulation. In order to person or in writing’’ because it is too not indicate’’. This phrase more clearly use the acronym, we must first spell it restrictive. Claimants may also request states what records VA will review to out for the reader, and while we do not applications using the telephone or determine if there is a potential accrued want to spell out the term every time we email. We also propose to remove the benefits claimant. In the same sentence, use it, neither do we want to spell it out phrases ‘‘or applying for’’ and ‘‘or apply we have replaced ‘‘forward’’ with once in part 5 or once in each subpart for’’ because these phrases are ‘‘furnish’’ for the reasons discussed redundant of ‘‘claiming’’ and ‘‘claim’’. and force the reader to keep referring above. We also propose to revise the last Moreover, they may cause a reader to back to a definition that is remote from sentence of paragraph (b) to specifically mistakenly believe that we mean describe the 1-year time limit for filing where the acronym is being used. To something different by the use of these a claim for accrued benefits because it strike a balance we propose to spell out different phrases. will be helpful to claimants. the official program name followed by We have defined ‘‘notice’’ in § 5.1. In the NPRM, paragraph (c) implied the acronym in parentheses the first The definition applies to VA’s duty to that VA would not assist in a claim for time the program name is encountered inform a claimant of something a certain disability or death due to hospital in a section and to use the acronym way. We propose to revise the first treatment, medical or surgical treatment, throughout the remainder of that sentence of proposed paragraph examination, or training. The initially section. This will apply to regulatory § 5.50(b) by replacing the word ‘‘notice’’ proposed rule stated, in pertinent part, text only, and not to section titles. If we with ‘‘information’’ because use of ‘‘VA will not forward an application for use the program title only once in a ‘‘notice,’’ as so defined, would be benefits under 38 U.S.C. 1151.’’ We section, we would spell it out with no inappropriate. believe that it is important to instead parenthetical abbreviation or acronym. The term ‘‘dependent’’ as used in the inform the reader that VA does not have We will apply this convention initially proposed rule and in § 3.150 an application for claims under 38 throughout part 5. from which it derives referred to U.S.C. 1151. We therefore propose to persons known to VA as the deceased revise paragraph (c) to clarify that a Lastly, we propose to standardize the veteran’s dependents at the time of his claimant may apply in any written form words used in referring to VA’s rating or her death. The term ‘‘survivor’’ better for disability or death benefits due to schedule, ‘‘the Schedule for Rating meets the requirement to provide an hospital treatment, medical or surgical Disabilities in part 4 of this chapter’’. application to persons with ‘‘apparent treatment, examination, or training For this subpart, the new term will entitlement’’, because it encompasses under the provisions of 38 U.S.C. 1151. replace the initially proposed language persons not known to VA as the VA does not have an application for in § 5.39(d)(4)(i). veteran’s dependent who could, such a claim. See § 5.53, Claims for nevertheless, be entitled to a death benefits under 38 U.S.C. 1151 for

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disability or death due to VA treatment publication of proposed § 5.52, section from, ‘‘in order for death benefits to be or vocational rehabilitation, for the 503 of Public Law 112–154 (2012) paid under the laws administered by requirements for filing a claim pursuant amended 38 U.S.C. 5105 by removing VA’’, to, ‘‘for VA to grant death to 38 U.S.C. 1151. the requirement that the Secretary of benefits’’, to be consistent with § 5.51. Initially proposed § 5.50 repeated the Veterans Affairs and the Commissioner We propose to revise paragraph (b) by cross reference to § 3.109(b) from the of Social Security jointly prescribe removing references to filing a claim for end of § 3.150. This cross reference is forms for use by survivors of members death compensation. This benefit is not erroneous because § 3.109(b) does not and former members of the uniformed available for new applicants, so it is not apply to any deadlines for filing claims services in filing application for benefits necessary to include death referenced in §§ 3.150 or 5.50. We under chapter 13 of title 38 and title II compensation provisions in part 5. As a therefore propose to remove this cross of the Social Security Act. Section 503 result of this change, we propose to reference from § 5.50. also removed the requirement that each eliminate initially proposed (b)(1) and redesignate proposed (b)(2) and (3) as § 5.51 Filing a Claim for Disability such form request information sufficient (b)(1) and (2), respectively. We propose Benefits to constitute an application for benefits under both laws. Finally, section 503 to revise paragraph (b) to eliminate Initially proposed § 5.51(a) stated, also removed the requirement that such needless repetition of language common ‘‘An individual must file a specific a claim be filed on a particular form by to initially proposed § 5.52(b)(2) and (3). claim in the form prescribed by the allowing it to be filed ‘‘on any document In initially proposed § 5.52(c)(4) and Secretary in order for disability benefits indicating an intent to apply for (5), we addressed the effective dates of to be paid under the laws administered survivor benefits’’. We proposed to a child’s death benefits. These by VA.’’ We propose to replace the include these statutory changes in paragraphs referenced the claimant’s phrase ‘‘in order for disability benefits § 5.52(a). requirement to timely submit evidence to be paid under the laws administered In response to the Center for Plain that VA requests and the consequence of by VA’’ with ‘‘for VA to grant a claim Language’s comment about sentence failure to timely submit such evidence. for disability benefits’’. This change length in initially proposed § 5.52, we The rules on timely submission of clarifies that the provision applies not propose to revise the regulation to be evidence are in § 5.136, ‘‘Abandoned only to cases where VA grants monetary more concise. We propose to revise claims’’, derived from current § 3.158. benefits, but also to cases where VA initially proposed paragraph (a) by We propose to remove these provisions grants service connection and rates the changing ‘‘in the form prescribed’’ to from initially proposed § 5.52 because disabilities as 0 percent disabling. ‘‘for death benefits by completing and there is no need to repeat them. To Subsequent to the publication of filing the application prescribed’’. See make the regulations more concise and proposed § 5.51, section 502 of Public § 5.1, ‘‘Definitions’’; compare definition easier to use, we propose to combine the Law 112–154 (2012) amended 38 U.S.C. of ‘‘application’’, with definition of remaining portions of initially proposed 5101 by adding a new paragraph which ‘‘claim’’, § 5.1(k). The requirement to paragraphs (c)(4) and (5) with paragraph states that if an individual has not use a prescribed application to claim a (c)(3) and to cross reference the effective attained the age of 18 years, is mentally death benefit is consistent with the date rules by referencing § 5.696 in incompetent, or is physically unable to authorizing statute, 38 U.S.C. 5101(a), paragraph (c)(1) and referencing sign a form, a form filed under and its current implementing regulation, §§ 5.538 and 5.431 in paragraph (c)(3). paragraph (1) for the individual may be § 3.152(a). Both statute and regulation signed by a court-appointed incorporate by reference the § 5.53 Claims for Benefits Under 38 representative, a person who is requirement that the Secretary and the U.S.C. 1151 for Disability or Death Due responsible for the care of the Commissioner of Social Security jointly to VA Treatment or Vocational individual, including a spouse or other prescribe an application for use at either Rehabilitation relative, or an attorney in fact or agent agency to apply for certain benefits, and We propose to remove the last authorized to act on behalf of the that the application constitutes a claim sentence of initially proposed § 5.53, individual under a durable power of for both agency’s benefits when filed which stated, ‘‘Such communication attorney. If the individual is in the care with either agency. See 38 U.S.C. 5105; may be contained in a formal claim for of an institution, the manager or 38 CFR 3.153. pension, disability compensation, or principal officer of the institution may In Fleshman v. West, 138 F.3d 1429, DIC, or in any other document.’’ The sign the form * * * The term ‘mentally 1431 (Fed. Cir. 1998), involving a claim first sentence of the regulation states incompetent’ with respect to an for disability compensation, the Federal that VA may accept ‘‘any individual means that the individual Circuit addressed whether the phrase communication in writing’’ as a claim lacks the mental capacity—(A) to ‘‘in the form’’ in section 5101(a) means for benefits under 38 U.S.C. 1151. In provide substantially accurate ‘‘on a form’’. The court distinguished light of that rule, the sentence we information needed to complete a form; between the phrases, citing § 3.153 propose to remove is surplus; ‘‘any or (B) to certify that the statements made pertaining to claims for death benefits as communication in writing’’ inherently on a form are true and complete. We an example of a regulation that clearly includes one ‘‘contained in a formal propose to update § 5.51(a) to reflect requires the claimant to use a specific claim’’. this amendment. application by using the phrase ‘‘on a form prescribed’’. Section 5.52(a) will § 5.54 Informal Claims § 5.52 Filing a Claim for Death Benefits implement the court’s reasoning and We propose to make several changes Initially proposed § 5.52(a) stated, make explicit VA’s practice regarding to initially proposed § 5.54. These ‘‘An individual must file a specific claims for death benefits. The proposed changes will revise and reorganize the claim in the form prescribed by the change of language from ‘‘in the form rule to be clearer and consistent with Secretary (or jointly with the prescribed’’ to ‘‘by completing and filing current VA practice. Commissioner of Social Security, as the application prescribed’’ is a Paragraph (a) defines an informal prescribed by § 5.131(a)) in order for clarifying change from § 3.152(a). We claim and states that the informal claim death benefits to be paid under the laws also propose to change the language in must be written. VA defines a ‘‘claim’’ administered by VA.’’ Subsequent to the initially proposed paragraph (a) of § 5.52 as a ‘‘formal or informal communication

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in writing’’ (§ 5.1). Section 5.54(a) time the communication was written.’’ benefits. We propose to make paragraph merely reiterates this requirement for We propose to restate the rule (c)(1) practicable by limiting the clarity in the rule governing informal affirmatively in paragraph (b) after the requirement that VA ‘‘furnish an claims. See Rodriguez v. West, 189 F.3d term ‘‘authorized representative’’. The appropriate application’’ to those 1351, 1354 (Fed.Cir. 1999) (VA defines restated rule will read, ‘‘if authorized benefits for which VA has an ‘‘claim’’ as a formal or informal written before VA received the informal claim’’. application. communication, therefore ‘‘under the This proposed change would also clarify The initially proposed rule prescribed Department’s regulations an informal the timing of the authorization. that VA would accept the date of receipt claim application must be written’’). We Initially proposed § 5.54(b), also like of an informal claim as the date of the also propose to add a cross reference in current § 3.155(b), required that a power claim, ‘‘If [the application is] received proposed paragraph (c)(2) to § 5.56, of attorney from the listed parties ‘‘was within 1 year after the date it was sent ‘‘Report of examination, treatment, or . . . executed at the time the to the claimant’’. We propose to add to hospitalization as a claim.’’ The reader communication was written.’’ VA paragraph (c)(1) that ‘‘VA will take no should find it convenient to have a requires that it receive the executed action on the informal claim until the reference here to an alternative method power of attorney before it will act on claimant files the completed of claiming certain benefits. a written communication from certain application.’’ Though the initially Initially proposed paragraph (a) also representatives as an informal claim. In proposed language stating that VA stated that ‘‘[a]ny communication or current practice, VA accepts as an forwards the application ‘‘for action’’ may be an informal claim for informal claim a written communication execution’’ implies that it must be benefits. As the phrase is used in from one of the listed representatives if returned executed (that is, completed), current § 3.155 from which it derives, it meets the requirements of an informal it is clearer to say so explicitly. any ‘‘action’’ that would be a claim for claim and VA receives it along with a We propose to revise initially benefits would be a communication. power of attorney executed as regulation proposed paragraph (c) as paragraph Therefore, we propose to remove the requires. ‘‘At the time the (c)(2). We propose to remove ‘‘an phrase ‘‘or action’’ as superfluous. communication was written’’ is informal request’’ and ‘‘will be accepted Additionally, initially proposed ambiguous. It could mean the power of as a claim’’. The revised regulation will paragraph (a) listed who may file an attorney was executed simultaneously, prescribe VA’s action upon receipt of an informal claim and stated certain more or less contemporaneously, or ‘‘informal claim’’ from a claimant who conditions for persons other than the simply before the communication was has previously satisfied § 5.51 or § 5.52, claimant to file the claim. We propose written. VA has no mechanism to as did the initially proposed regulation. to move this list to paragraph (b) to ascertain whether the power of attorney We propose to remove the term distinguish the authority to file an was executed at any of these times, nor ‘‘informal request’’ for the same reason informal claim from the required need VA ensure the power of attorney we propose to remove ‘‘action’’ from content of an informal claim. Readers was executed ‘‘at the time the paragraph (a). Any ‘‘informal request’’ should find it convenient to have in one communication was written.’’ VA is for an increase or to reopen must be a place a list of persons who can file a sufficiently assured of the authenticity communication indicating ‘‘an intent to claim and any conditions on that of the power of attorney and of the apply for one or more benefits’’, that is, authority. Initially proposed paragraph authority of the representative to act for an informal claim. We propose to (b), like 38 CFR 3.155(b), listed several the veteran if VA receives a properly remove ‘‘will be accepted as a claim’’, types of representatives: agents, executed power of attorney and the because to say that VA will accept an attorneys, and service organizations. communication the representative wrote informal request as a claim if the Initially proposed paragraph (a) for the claimant together. claimant previously satisfied the contained the term ‘‘authorized Initially proposed § 5.54(b) contained requirements of § 5.51 or § 5.52 is representative’’, which we have moved a cross reference to 38 CFR 14.631, merely to say that an informal claim is into paragraph (b). Because ‘‘authorized ‘‘Powers of attorney; disclosure of a claim under those circumstances. That representative’’ includes agents, claimant information.’’ Because is exactly what the regulation means, attorneys, and service organizations, we § 14.630, ‘‘Authorization for a particular and VA has never intended an propose to remove those terms from claim’’, also describes a type of ‘‘informal request’’ to be something § 5.54. authorized representative, we propose different from an informal claim. Using Initially proposed paragraph (a) to add a cross reference to that section, another term for an informal claim provided that a ‘‘duly authorized too. confusingly suggests that there is some representative’’ may file a claimant’s We propose to reorganize the other type of ‘‘informal communication informal claim. We propose to remove elements of initially proposed in writing requesting a determination of the word ‘‘duly’’ from the phrase ‘‘duly paragraphs (a) and (c) that addressed the entitlement, or evidencing a belief in authorized representative’’. It is a effect of filing an informal claim, entitlement, to a VA benefit’’ that might superfluous legalism. A claimant has or combining them in paragraph (c). not be an informal claim. As the has not authorized a representative. Paragraph (c)(1) applies to original definition of ‘‘claim’’ reveals, this There is no such thing as an unduly informal claims. Initially proposed cannot be so. See § 5.1, defining authorized representative. Such a paragraph (a) provided that VA will ‘‘claim’’. representative would simply not be ‘‘forward’’ an application to anyone who Paragraph (c)(2) provides that VA will authorized. files an informal claim, but has not filed act on an informal claim without Initially proposed paragraph (b), like a formal claim. We propose to revise requiring another application from a current § 3.155(b), imposed conditions this to say that VA will ‘‘furnish an person who has previously filed an on VA’s acceptance of an informal claim appropriate application to a person who application. The initially proposed rule when filed by certain organizations or files an informal claim’’. This is and current § 3.155(c) allowed an persons. The regulation stated the rule consistent with § 5.50(a), which requires informal claim for increase or to reopen negatively: ‘‘A communication . . . may VA to furnish an ‘‘appropriate to be accepted without the claimant not be accepted . . . if a power of application’’ for a benefit upon request. subsequently filing an application if the attorney . . . was not executed at the VA does not have an application for all claimant had previously filed a claim

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that ‘‘met the requirements of § 5.51 are implicit in the initially proposed appeal. If the Board does not find good [disability benefits] or § 5.52 [death and the current regulation. cause, then it will decide the appeal benefits]’’. It is implicit, but not We propose to move the definition of without conducting the hearing. In that obvious, that VA can accept an informal a ‘‘reopened claim’’ from initially case, it will refer the hearing request to claim for each type of benefit without proposed § 5.57(f) to § 5.55(a) and (d) the AOJ as required by 38 CFR requiring a subsequent application only and restate it as a list of conditions 20.1304(b)(1)(i). Any testimony if the claimant has previously filed an necessary to reopen a claim VA has presented at a subsequent AOJ hearing application for that type of benefit. An finally denied. on a claim for a benefit the Board application that provides information Initially proposed § 5.55(a) stated, ‘‘A denied would necessarily be critical to the benefit claimed satisfies claimant may reopen a finally ‘‘[e]vidence the claimant presented . . . the statutory requirement to file a claim adjudicated claim’’. The paragraph since VA last made a final decision ‘‘in the form prescribed by the characterized new and material denying the claim the claimant seeks to Secretary’’. Fleshman, 138 F.3d at 1431– evidence in reference to ‘‘evidence of reopen’’ under § 5.55(d)(1). Therefore, 32 (Applicant must file claim containing record at the time of the last prior final there is no need to include the § 5.57(f) specified information, and without the denial of the claim sought to be language about hearings. ‘‘critical information’’ it will not be ‘‘in reopened’’. Both quoted phrases come We propose to add paragraphs (b) and the form prescribed by the Secretary’’ so from current § 3.156(a). As now (c). Proposed paragraph (b) states, ‘‘To as to comply with 38 U.S.C. 5101(a)). It proposed, § 5.55(a) states, ‘‘A claimant reopen a claim, the claimant must is VA’s receipt of the information may reopen a claim if VA has made a present or VA must secure new and critical to a claim for disability benefits final decision denying the claim.’’ It material evidence. If VA receives a or for death benefits that enables VA to would be redundant to state that a claim to reopen, it will determine accept a subsequent informal claim for claimant may reopen a ‘‘finally’’ whether evidence presented or secured disability benefits or death benefits adjudicated claim because we define to reopen the claim is new and without requiring another application. ‘‘claim’’ in § 5.1 and we define ‘‘final material.’’ Proposed paragraph (c) reads, The previous filing of a claim for decision’’ in § 5.1. A claim is not subject ‘‘If the claimant has presented or VA has disability benefits will not have to reopening if a prior decision is not secured new and material evidence, VA provided VA the critical information final. Therefore, in order to reopen a will reopen and decide the claim on its necessary for the claimant to have met claim, paragraph (a) of this section merits.’’ Together, these paragraphs the requirement of 38 U.S.C. 5101(a) for requires the existence of a final decision clearly prescribe the sequence of actions a claim for death benefits, and vice denying that claim. These changes are in reopening a claim, implementing 38 versa. As proposed to be revised, consistent with the circumstances in U.S.C. 5108 and long-standing judicial § 5.54(c)(2)(i) and (ii) will explicitly which a claimant will seek to reopen a precedent. See Manio v. Derwinski, 1 state the implicit requirement in claim. Vet. App. 140 (1991). initially proposed § 5.54(c) that VA will We propose to move the language in We propose to move the definition of accept an informal claim for increase or initially proposed § 5.57(f) regarding the ‘‘new and material evidence’’ in initially to reopen a claim for disability or death Board of Veterans’ Appeals (Board) proposed § 5.55(a) to paragraph (d), so it benefits only if the claimant has treatment of certain evidence into now follows the information a claimant previously filed a claim for that type of § 5.55(d) because it relates to new needs to know about the process of benefit. evidence in the context of reopening a reopening a claim. We propose to claim. We have shortened that language reorganize the definition of ‘‘new and § 5.55 Claims Based on New and because under § 20.1304(b)(1)(i), any material evidence’’ as a set of criteria Material Evidence evidence or request for hearing that evidence must meet to be ‘‘new’’ We propose to revise initially referenced in that rule will be returned and a set of criteria it must meet to be proposed § 5.55 in response to a to the RO ‘‘upon completion of the ‘‘material’’. comment and based on our further Board’s action on the pending appeal’’. As initially proposed, the definition review of the regulation. The Therefore, the RO will apply of ‘‘new and material’’ evidence could commenter requested that VA make the § 20.1304(b)(1)(i) only in the context of be misconstrued to imply that ‘‘new and rule clearer and use the active voice. We a final denial, which is already material’’ evidence has some sort of propose to revise this regulation to discussed in § 5.55(a), or a grant or combined characteristics in addition to enhance readability and be more remand, in which case, the provisions of those that satisfy the requirement that it consistent with the format of other part § 5.55 are irrelevant. The primary is new and that it is material. VA has 5 regulations. relevance of § 20.1304(b) to § 5.55 is that never intended the term ‘‘new and The proposed revisions describe the evidence submitted to the Board prior to material evidence’’ to be interpreted this process of, and provide instructions for, its decision, but not considered by the way, and the Federal Circuit has reopening a claim that the initially Board, as set forth in § 20.1304(b), may rejected such an interpretation. Anglin proposed regulation did not. The be considered ‘‘new’’ for purposes of v. West, 203 F.3d 1343, 1346 (Fed. Cir. proposed revisions afford the claimant § 5.55. 2000) (rejecting appellant’s assertion the same rights, however, and prescribe We propose not to include the that ‘‘the concepts of newness and the same burdens and duties for the provision contained in § 5.57(f) materiality are so intertwined that they claimant and for VA in seeking to regarding hearings in § 5.55(d). When a cannot meaningfully be separated into reopen a claim as did the initially claimant requests a hearing at the Board ‘prongs’ of a test’’). proposed regulation. They articulate more than 90 days after certification of In proposing the current definition of current VA practice in implementing 38 an appeal and transfer of the claims file ‘‘new and material evidence’’, 38 CFR U.S.C. 5108, which requires VA to to the Board, the Board will not allow 3.156(a), VA stated, ‘‘We propose to ‘‘reopen the claim and review the the hearing unless there is a showing of clarify the definition of ‘new and former disposition’’ if ‘‘new and good cause for the delayed request. If material evidence’ . . . to state that ‘new material evidence is presented or the Board finds good cause and allows evidence’ means . . . evidence not secured’’. They also make explicit the hearing, then any testimony previously submitted to agency several aspects of reopening a claim that presented is considered in deciding the decisionmakers, that is neither

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cumulative nor redundant of the (2000), which mandated that VA assist ‘‘existing’’ to proscribe a duty to provide evidence of record at the time of the last claimants to substantiate their claims. In medical examinations or obtain medical final denial of the claim.’’ 66 FR 17838, doing so, VA prescribed the assistance opinions for the claimant seeking to Apr. 4, 2001. The courts have it would give a claimant to substantiate reopen a previously finally denied consistently associated ‘‘cumulative’’ a claim to reopen by limiting its duty to claim. with a failure of evidence to be New obtain new and material evidence to Finally, we propose to redesignate See, le.g., Anglin, 203 F.3d at 1346–47 obtaining ‘‘existing evidence’’, as initially proposed paragraph (b), (holding that CAVC correctly used first distinguished from newly created ‘‘Effective date’’, as paragraph (e). We prong of Colvin test in finding appellant evidence. 66 FR 17837–38, Apr. 4, 2001. propose to change the term ‘‘awards’’ to who filed ‘‘cumulative’’ evidence had VA did this to avoid the implication ‘‘grants’’, consistent with the use of not filed ‘‘new’’ evidence); Elkins v. that, under the VCAA of 2000, it had a ‘‘grant’’ in part 5 as a verb meaning to West, 12 Vet. App. 209, 212 (1999) (new duty to create new evidence, for decide a claim affirmatively. evidence is evidence not of record at example through a medical § 5.56 Report of Examination, time of last final disallowance of the examination. 66 FR 45628, Aug. 29, Treatment, or Hospitalization as a claim and not merely cumulative of 2001 (‘‘VA would not provide an Claim other evidence that was then of record); examination or obtain a medical Colvin v. Derwinski, 1 Vet. App. 171, opinion to create new evidence’’). VA We propose to revise and reorganize 174 (1991) (‘‘New evidence is not that intended ‘‘existing evidence’’ to mean this regulation for simplicity. We also which is merely cumulative of other ‘‘evidence that is not newly generated propose to address several specific evidence on the record.’’) (overruled in by or with the help of VA’’. 66 FR issues. part by Hodge v. West, 155 F.3d 1356 17838, Apr. 4, 2001. We propose to revise initially (Fed. Cir. 1998)). Nonetheless, if ‘‘new’’ evidence and proposed paragraph (a) so that it simply In Anglin, the Federal Circuit affirmed ‘‘material’’ evidence both mean states the purpose and effect of this the holding of the CAVC that the ‘‘existing’’ evidence, then initially section. It is necessary to explain that appellant’s cumulative evidence was proposed § 5.55(a) could be evidence construed as a claim in not new evidence. 203 F.3d at 1347. The misconstrued to mean that VA would accordance with this section meets the Federal Circuit explained that Hodge not accept any evidence newly created claim requirement of § 5.51(a), because did not overrule the first prong of the to reopen the claim because it is not after VA receives such evidence, VA so-called Colvin test of ‘‘new and ‘‘new and material’’ as defined. As requires the claimant to take no further material evidence.’’ 203 F.3d at 1346 initially proposed, the rule could action to establish that he or she has (‘‘[N]othing in Hodge suggests that the produce the strange result, for example, filed a claim. In other words, the understanding of ‘newness’ as embodied of VA rejecting a new medical opinion evidence constitutes a claim ‘‘that is in in the first prong of the Colvin test is that a claimant obtains and files to the form prescribed by the Secretary’’ inadequate or in conflict with the reopen a claim as not ‘‘new and material for filing the claims to which this regulatory definition of new and evidence’’, because it would not be section applies. material evidence.’’). The Anglin court ‘‘existing evidence.’’ We therefore We propose to add a new paragraph rejected the appellant’s argument that propose to remove the term ‘‘existing’’ (b), ‘‘Claims excluded’’, which provides ‘‘the concepts of newness and to avoid any potential for such that VA’s receipt of a report of materiality are so intertwined that they misapplication. examination, treatment, or cannot meaningfully be separated into There is no need to qualify ‘‘new and hospitalization is a claim only under the ‘prongs’ of a test.’’ Id. at 1346. The material evidence’’ as ‘‘existing circumstances named in paragraph (c) of CAVC explicitly found ‘‘[b]ecause the evidence’’ to ensure that VA’s duty to this section. We emphasize this point by evidence presented . . . was not new, the assist the claimant in obtaining new and explicitly excluding from the scope of CAVC did not examine whether it was material evidence is as limited as VA this section new claims for service material. This application of the first intends. In any claim, the claimant must connection. prong of the Colvin test was entirely identify existing evidence and provide In reviewing the initially proposed consistent with the regulatory definition VA the information necessary to obtain regulation, we noticed that in some of new and material evidence.’’ Id. at this evidence before VA is obligated to places we referred to a report of 1347. As restated, proposed § 5.55(d) try to procure that evidence for the examination or hospitalization and in clearly distinguishes between new claimant. See proposed § 5.90(c). others we referred to a report of evidence and material evidence. It Nothing about asserting that the examination or treatment. Our intent makes clear what new evidence is, what evidence is new and material or the fact was to accept a report of examination, material evidence is, that to reopen a that the claimant wants VA to obtain treatment, or hospitalization as a claim claim the evidence must meet both that evidence in order to reopen a claim in the situations described. We propose criteria, and that failure of the claimant exempts the claimant from his or her to revise this regulation, including the to present or of VA to secure either will obligation. Consequently, the definition title, to reflect that any of these types of bar reopening the claim. of new and material evidence does not medical reports may be a claim for Initially proposed § 5.55(a) reiterated need the qualifier ‘‘existing’’ to limit increased benefits or for pension under the language of current § 3.156(a), ‘‘New VA’s duty to assist. Likewise, another the circumstances described. The evidence means existing evidence’’, and paragraph of the ‘‘duty to assist’’ revised title also represents the content ‘‘Material evidence means existing regulation provides that VA has no duty of the regulation more accurately. evidence’’. For the following reasons, to assist a claimant seeking to reopen a We propose to reorganize initially we propose to remove the term claim by providing medical proposed paragraph (b) of this section ‘‘existing’’ in both instances. examinations or obtaining new medical and redesignate it as paragraph (c), In 2001, VA amended the definition opinions until new and material ‘‘Claims included’’. We propose to of ‘‘new and material evidence’’ to evidence is presented or secured. See replace the initially proposed language implement the Veterans Claims proposed § 5.90(c)(4)(iii). Therefore, the with four succinct statements, (c)(1), (2), Assistance Act of 2000, Public Law 106– definition of ‘‘new and material (3), and (4). Each statement articulates a 475, sec. 3, 114 Stat. 2096, 2096–98 evidence’’ does not need the qualifier circumstance in which VA’s receipt of

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medical records is a claim and identifies ‘‘Disallowed’’ is used there in the same considered a claim for service what type of claim it is, for example, a sense in which § 3.157(b) uses it to refer connection for a disability. As stated, claim for increased disability to nonpayment of disability however, it would preclude the reports compensation. We propose not to repeat compensation to a service-connected described from being a claim for the language, ‘‘or once a formal claim veteran rated 0 percent and for the pension. VA has never applied the rule for disability compensation has been reason discussed above; such a claim is to reject records from a VA or uniformed denied because the service-connected not ‘‘reopened.’’ VA may grant service service medical facility as a claim for disability is not compensable in connection to a veteran, yet not pay pension following a prior grant or denial degree’’. We also propose not to repeat disability compensation because the of pension. We therefore propose to the language, ‘‘or an informal claim to veteran elects to receive retired pay remove the language to avoid such a reopen’’. Both phrases are superfluous rather than VA disability compensation. misapplication of the rule. and potentially confusing to readers. VA VA would also not pay pension to the The language in the quotation above formerly considered claims where VA retiree in receipt of retired pay if the (§ 5.56(c)(1)(i)) also tracks language from granted service connection for an injury amount of retired pay is greater than the current § 3.157 that was intended to or disease, but rated the disability as 0 amount of income above which VA will govern a situation in which a claimant percent disabling as having been not pay pension benefits. In neither obtained treatment for a service- disallowed or denied. See Par. 4, VA instance is a claim under this section connected disability and during that Technical Bulletin 8–180, ‘‘Claims for ‘‘reopened’’ or a claim to reopen. Our treatment, the examiner noted the Increase and Reopened Awards’’ (June proposed restatement of initially existence of another disability. Before 13, 1951). VA considered hospital proposed § 5.56(b)(2), to be redesignated 1962, 38 U.S.C. 3011 had described an treatment records as ‘‘an informal claim as proposed paragraph (c)(3), includes a award of increased disability to reopen’’ such a claim in order to heading that accurately describes the compensation or pension as ‘‘an award receive a compensable rating. Id. circumstances in which the section of increased compensation . . . or VA currently considers claims for applies to veterans receiving retired pay. pension (amending, reopening, or disability compensation to have been It also describes the claims, simply, as supplementing a previous award, granted, notwithstanding that the for disability compensation or for authorizing any payments not disability is rated 0 percent, so long as pension. previously authorized to the individual VA granted service connection. This is Initially proposed § 5.56(c)(3) used involved)’’. 38 U.S.C. 3011 (1958). Thus, because even a 0 percent rating can the term ‘‘retirement pay’’. Upon further the law seemed to provide that a claim yield disability compensation or other review, we noted that the terms for increase included a claim for benefits, such as medical treatment. See ‘‘retirement pay’’ and ‘‘retired pay’’ additional disability compensation 38 CFR 3.324, ‘‘Multiple were inconsistently used in part 3. To based on a new disability, if the veteran noncompensable service-connected correct this inconsistency, we propose was already receiving disability disabilities’’. Because VA no longer to use the term ‘‘retired pay’’ throughout compensation. However, that language considers such claims disallowed or part 5 when we are referring to has long since been repealed. See Public denied, they cannot be ‘‘reopened’’. ‘‘payment received by a veteran that is Law 87–825, sec. 5(a), 76 Stat. 948, 950 Instead, a claimant who believes he or classified as retired pay by the Service (Oct. 15, 1962). Current law does not she is entitled to more than a 0 percent Department’’. See proposed § 5.745(a), provide for the possibility of assigning rating need only file a claim for an for the definition of ‘‘military retired a 1-year retroactive effective date of increased rating. Hence, we propose to pay’’. disability compensation awarded based remove the above-referenced language We propose to redesignate initially on a new disability (unless the claim for from redesignated § 5.56(c). proposed paragraph (c) as paragraph (d). disability compensation is received no Furthermore, 38 CFR 3.157 has never Initially proposed § 5.56(c)(1)(i) read: later than 1 year after the veteran is applied to permit the reopening of a discharged from service, see 38 U.S.C. claim that was denied because the The provisions of paragraph (c)(1) of this 5110(b)(1)). In this and other respects, section apply only when the reports claimed injury or disease was not described in paragraph (c)(1)(ii) of this current law does not treat a claim for service connected. 38 CFR 3.157(b) section relate to examination or treatment of disability compensation based on a new applies only where ‘‘a formal claim for a disability for which service-connection has disability in the same manner as a claim . . . compensation has been allowed or previously been established or when a claim for increased disability compensation . . . disallowed for the reason that the specifying the benefit sought is received based on an increase in the severity of service-connected disability is not within 1 year after the date of an a disability that is already service compensable in degree’’. Removing the examination, treatment, or hospital connected. Thus, this regulation above-referenced language will remove admission described in paragraph (c)(1)(ii) of governing the consideration of medical this section. any possible confusion on this point. evidence as a claim can no longer apply The reasoning for not using the term We have not repeated the quoted to a claim based on a disability not ‘‘disallowed’’ or ‘‘denied’’ or referring to language of initially proposed paragraph previously claimed. This is consistent a ‘‘reopened’’ claim in the context of a (c)(1)(i) in redesignated paragraph with our analysis of the first sentence of prior grant of service connection to a (d)(1)(i). The first clause of the initially current § 3.157(b), discussed above, in veteran rated 0 percent disabled also proposed language, as with the which we explained why the part 5 rule applies to claims under this section equivalent language in § 3.157(b)(1), will not refer to a prior claim having from veterans receiving retired pay. stated, ‘‘The provisions of paragraph been ‘‘disallowed’’ or to a claim needing Proposed paragraph (b)(2) changed (c)(1) of this section apply only when to be reopened. ‘‘disallowed’’ to ‘‘denied’’ in restating the reports described in paragraph One commenter suggested that the the § 3.157(b) rule about retirees. (c)(1)(ii) of this section relate to meaning of the phrase ‘‘or when a claim Section 3.157(b) provides for claims examination or treatment of a disability specifying the benefit sought’’ that had from ‘‘a retired member of a uniformed for which service-connection has been used in initially proposed service whose formal claim for pension previously been established’’. The § 5.56(c)(1)(i) should be explained more or compensation has been disallowed purpose of this language is to emphasize thoroughly. The commenter noted some because of receipt of retirement pay.’’ that medical records will not be confusion concerning its meaning based

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on the dissent in Ross v. Peake, 21 Vet. such a restriction. We therefore propose ‘‘formal claim’’. It is the lack of a prior App. 534 (2008) (Order denying full- to remove this language because if the claim for any disability, death, or court consideration) (Judge Kasold, claimant does not eventually establish chapter 18 benefit that makes a claim dissenting). entitlement to the benefit, then the date the original claim for the benefit. As stated above, the language ‘‘or of receipt of the claim has no legal It is confusing to define the original when a claim specifying the benefit significance. Therefore, the language, claim as ‘‘the initial formal claim’’. sought’’ is a vestige of a statute that is ‘‘and entitlement is shown’’ is More significantly, it is fallacious. Even no longer in effect. We are not using the superfluous. if we kept the definition of ‘‘formal phrase in part 5, and therefore we do Finally, we propose to revise initially claim’’ as a claim filed on a prescribed not need to further explain its meaning. proposed paragraph (d), ‘‘Liberalizing application, the lack of an application Regarding the Ross dissent, Judge law or VA issue’’, for clarity and to for some benefits would make the Kasold interpreted a similar provision redesignate it as paragraph (e). initially proposed definition of ‘‘original in current § 3.157 as providing an earlier § 5.57 Claims Definitions claim’’ impracticable. If an original effective date for claims for secondary claim must be an application and there service connection. This view, however, We propose to revise the format of is no application for some benefits, then directly contradicts the holding of the this regulation to be consistent with the there cannot be an original claim for Federal Circuit in MacPhee v. format of other regulations that provide some benefits. That conclusion is definitions. We propose to revise the Nicholson, 459 F.3d 1323 (Fed. Cir. untenable. title of the regulation to be, ‘‘Claims 2006). Judge Kasold believed that We also propose to add ‘‘from a definitions’’, because it more clearly § 3.157 ‘‘envisions a claim for increased person’’ to be clear that when two or indicates the contents of the regulation. compensation based on a disability for more claimants each file a claim for the which service connection has not yet We also propose to restate and expand the scope of the definitions. The same benefit, each claim will be the been granted.’’ Ross, 21 Vet. App. at original claim for that person. For 535. In MacPhee, however, the Federal initially proposed rule, like current example, two siblings each filing a Circuit held that an informal claim § 3.160 from which it derives, stated claim for DIC based on the death of the pursuant to § 3.157 ‘‘must be for a that the definitions applied to claims for same veteran would each have an condition that not only has been the pension, disability compensation, and original claim. This was not apparent in subject of a prior claim, but the DIC. VA administratively processes the initially proposed regulation. condition must also have been claims under 38 U.S.C. chapter 18 in the previously found to be service same manner as VA processes pension, We propose to remove initially connected.’’ MacPhee, 459 F.3d at 1326. disability compensation, and DIC. proposed paragraph (e), ‘‘Finally Thus, § 3.157 does not support the Therefore, we propose to restate the adjudicated claim’’. It is essentially assertion that a claim for benefits for a scope of § 5.57 as applying to claims for redundant of the definition of ‘‘final separate disability may be considered a disability benefits, death benefits, or decision’’ in § 5.1. The definition of claim for increased disability monetary allowance for a veteran’s child ‘‘final decision’’ in § 5.1 encompasses compensation. under 38 U.S.C. chapter 18. The the definition of ‘‘finally adjudicated The sources of evidence that can proposed change to ‘‘disability benefits’’ claim’’ in § 3.160(e), but it is more constitute a claim under paragraph and to ‘‘death benefits’’ (from ‘‘pension, precise. The procedural posture of (d)(1) (initially proposed paragraph disability compensation, and finality of VA decisions applies to VA (c)(1)) are regrouped in paragraph dependency and indemnity claim adjudication more broadly than (d)(1)(ii) as (d)(1)(ii)(A) through (D), compensation’’) better harmonizes the just to claims for pension, disability according to date of claim that results scope of the regulation with the compensation, DIC, and monetrary from submission of the particular regulations on claims for disability and allowances under 38 U.S.C. chapter 18. evidence. Though this makes a fourth for death benefits. See §§ 5.51 and 5.52. For that reason, it is more appropriate level of designation in the rule, it We propose to remove initially for the rule defining finality to be in should enhance readability. proposed paragraph (a), definition of § 5.1 than in § 5.57, which has a limited Initially proposed paragraph (c)(3)(i), ‘‘formal claim’’. As initially proposed, scope. regarding evidence from state and other the definition, ‘‘A claim filed on the One commenter objected to the title of institutions, stated, ‘‘Benefits will be application required’’, was § 5.57(f), ‘‘Reopened claim’’, asserting granted if the records are adequate for impracticable. There are benefits for that the title is misleading because the rating purposes; otherwise findings will which VA does not have an application, paragraph does not describe what a be verified by official examination.’’ We for example benefits under 38 U.S.C. reopened claim is and is not consistent propose to change ‘‘official’’ to ‘‘VA’’, to 1151. Moreover, as a result of revision with how VA and the courts have used make clear that the official examination of several other proposed regulations, the term. This commenter felt that a to which the sentence refers is a VA the term does not appear in part 5 other better title would be, ‘‘Claim to reopen.’’ examination. We also propose to add than in its definition. There is no need We agree that ‘‘reopened claim’’ is the phrase, ‘‘and demonstrate to define a term that is not used. inaccurate. As noted by the commenter, entitlement to an increased rating, to We propose to redesignate initially this paragraph concerns submission of pension, or to special monthly pension’’ proposed paragraph (b), ‘‘Informal evidence, information, or an assertion of after ‘‘rating purposes’’ to clarify that claim’’, as paragraph (a). entitlement to a procedure applicable to mere receipt of such evidence does not We propose to redesignate initially a previously decided claim. Such establish entitlement to benefits. proposed paragraph (c), ‘‘Original submission of evidence, information, or Initially proposed paragraph (c)(3)(ii) claim’’, as paragraph (b). We propose to an assertion of entitlement to a included the phrase ‘‘and entitlement is revise the definition to state, ‘‘Original procedure applicable to a previously shown’’, derived from current claim means the first claim VA receives decided claim may not always result in § 3.157(b)(3), as a condition on the date from a person for disability benefits, for the claim being reopened. We propose of VA receipt of evidence from state and death benefits, or for monetary to use the suggested phrase ‘‘claim to other institutions as the date of a claim. allowance under 38 U.S.C. chapter 18.’’ reopen’’. However, we propose to do so Neither § 3.157(b)(1) nor (b)(2) contains This restatement eliminates the term in the context of moving the paragraph

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to § 5.55(a), as we discussed above One commenter urged VA to include As stated in our response to a similar regarding § 5.55. a provision acknowledging the right of comment on initially proposed § 5.80, both the claimant and the claimant’s part 3 regulations do not describe the Duties of VA; Rights and representative to automatically receive role of representatives in the Responsibilities of Claimants and copies of evidence secured by VA. The adjudicative process or the limitations Beneficiaries AL82 commenter asserted that access to the of hiring an attorney and we do not General Comment on VA Claims evidence developed and relied upon by believe part 5 should either. Initially Process VA to reach its decision is crucial to proposed § 5.81(a) was not intended to One private individual submitted a proper notice and is a fundamental due regulate the specific authority of a comment concerning the length of time process right. claimant’s or beneficiary’s VA takes to process a claim and his A veteran and representative are representative. This information is dislike of the appeal process. This entitled to a copy of the evidence or codified in §§ 14.626–14.637, to which comment is outside the scope of these other written records contained within § 5.80 refers, and to include it in part 5 proposed regulations, and we therefore a veteran’s claims file in accordance would be redundant. We therefore propose to make no changes based on with the provisions of 38 U.S.C. propose to make no change based on this comment. 5701(b)(1), as implemented in 38 CFR this comment. 1.503. The veteran or representative § 5.80 Rights to Representation In initially proposed § 5.81(a), we must make a written request for the used the term ‘‘record of proceeding’’ Two commenters suggested that this copies of the evidence in accordance twice. We have substituted the term initially proposed section was deficient with the provisions of 38 U.S.C. 5702(a). ‘‘evidence of record’’ to be consistent in its scope. They expressed a belief that See 38 CFR 1.526. The procedures for a with the other part 5 regulations. This a claimant or beneficiary should be veteran and the representative to obtain regulation was the only one in part 5 to given notice of the right to copies of the evidence used in deciding use the term ‘‘record of proceeding’’. a claim have been established by statute representation throughout the Initially proposed § 5.81(b) stated: adjudicative process, not only when VA and VA has implemented these sends notice of a decision or a proposed procedures in our regulations. If VA Information, evidence, or argument may be reduction, discontinuance, or other adopted the rule that the commenter submitted by a claimant or beneficiary, or, adverse action. Both expressed the urges, it would require VA to copy and where applicable, through a guardian or mail every document it acquires fiduciary acting on his or her behalf. Unless opinion that VA should notify the specifically provided otherwise in this part, claimant of the right to representation at regardless of its relevance to the a claimant’s or beneficiary’s authorized the beginning of the claims process. veteran’s claim. We do not believe that representative may submit information, It has been VA’s long-standing it would be an appropriate use of VA’s evidence, or argument pursuant to any practice to provide notice to claimants limited resources to automatically section of this part that allows or requires of the right to representation in VA’s provide both the claimant and the submission of information, evidence or initial response to the claimant after VA claimant’s representative with copies of argument. receives a substantially complete every piece of evidence that VA secures. Two commenters expressed concern application. We propose to revise The procedures provided in current with this paragraph as implying some initially proposed § 5.80 to state that statutes and regulations do not infringe new restriction on a representative’s written notice concerning the right to on the claimant’s due process rights. authority to submit material on behalf of representation will be included in the The claimant has the right to notice of a client. One commenter argued that initial response VA sends to the the evidence VA will attempt to obtain this section is inappropriate because an claimant after receipt of a substantially on the claimant’s behalf, of the evidence authorized representative stands in the complete application. the claimant has the responsibility to One commenter noted that initially obtain and submit, and of the decision same position as the client and should proposed § 5.80 failed to set out in on the claim. If the decision is adverse, be allowed to submit evidence and detail the crucial role of the the notice must include a discussion of arguments as if he is the claimant or representative in the adjudicative the evidence considered and the reasons beneficiary. The same commenter process. Another commenter urged VA and bases for the decision and it must suggested inserting the phrase ‘‘or their to include in initially proposed § 5.80 include the claimant’s appellate rights. authorized representative’’ after the limitations on hiring an attorney. The claimant may, upon written ‘‘beneficiary’’ and deleting the second Part 3 regulations do not describe the request, generally obtain a copy of the sentence. role of representatives in the evidence used in making the decision We did not intend to constrain an adjudicative process or the limitations on the claim. Since our regulations authorized representative’s role or of hiring an attorney and we do not already provide for the result the authority in the VA claims process. believe part 5 should either. The rights, commenter requested, though not in the After reviewing initially proposed duties, limitations and role of a manner urged by the commenter, we § 5.81(b) because of the comments representative are in 38 CFR 14.626— propose to make no changes based on received, however, we noted that all the 14.637. The first sentence of § 5.80 this comment. information contained in the paragraph refers the reader to those sections. We is also in other regulations. Section are making no changes in the language § 5.81 Submission of Information, 1.524 provides for the right of a of the regulation in response to these Evidence, or Argument fiduciary, representative, attorney, or comments. We have, however, added a Initially proposed § 5.81(a), other authorized person to represent the cross reference at the end of initially ‘‘Submissions included in the record’’, claimant. Sections 13.1, et seq., and proposed § 5.80 to 38 CFR 19.25, referred to submissions ‘‘that a claimant 14.626–14.637 provide specific ‘‘Notification by agency of original offers. . .’’ One commenter asserted provisions concerning these jurisdiction of right to appeal’’, which that § 5.81(a) failed to specify that a representatives. Because other requires that VA include the right to claimant’s recognized representative has regulations provide for the rights and representation in its notice of an adverse the authority to raise issues on behalf of duties provided in initially proposed decision on a claim. a claimant. § 5.81(b), and do so in greater detail,

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§ 5.81(b) is redundant, and we propose The initially proposed rule allowed, will conduct the hearing.’’ The to remove it. ‘‘one hearing before the agency of comment offered no basis to believe that original jurisdiction at any time on any a VA official conducting a hearing § 5.82 Right to a Hearing issue or issues involved in a pending would not be impartial, and we propose We propose to add language to claim before the agency of original to make no change to preempt a bias initially proposed § 5.82(a) to make jurisdiction’’ and permitted one that is not demonstrated. clear that the section pertains only to additional hearing ‘‘if the claimant To the extent the commenter is hearings in claims at the agency of asserts that: he or she has discovered a concerned about lack of notice to the original jurisdiction level of new witness or new evidence to claimant of the right to a hearing before adjudication. We propose to change substantiate the claim; he or she can the decision on a claim, VA does notify ‘‘claimants’’ to ‘‘claimants and present that witness or evidence only at claimants of the right to a personal beneficiaries’’, except in paragraph (f), an oral hearing; and the witness or hearing at any time, including before to make clear that the rules in § 5.82 evidence could not have been presented VA has decided a claim. See, for apply to claimants and to current at the original hearing.’’ Four example, VA Form 21–526, instructions beneficiaries. Paragraph (f) pertains only commenters asserted that the limitation page 6, Veteran’s Application for to hearings in response to a VA proposal in initially proposed § 5.82 on the Compensation and/or Pension (Jan. to take adverse action regarding a number of hearings allowed was too 2004), or VA Form 21–534, instructions beneficiary’s benefits. Finally, we restrictive. For the reasons stated in page 2, Application for Dependency and propose to change ‘‘claim’’ to ‘‘matter’’ response to specific comments, we Indemnity Compensation, Death to clarify that if a beneficiary requests a disagree that the regulation is too Pension and Accrued Benefits by a hearing to give testimony or evidence on restrictive and we reject each of the Surviving Spouse or Child (Including whether VA should take adverse action reasons argued for keeping the current Death Compensation if Applicable). against the beneficiary’s benefits, such a rule. Because VA already provides this hearing is within the scope of § 5.82. One commenter asserted that the information to claimants, we propose to Further review of the initially ‘‘one-hearing rule’’ diminishes make no change based on this comment. Absent the discovery of a new witness proposed regulation revealed a claimants’ right to due process because or evidence, there is no valid reason to contradiction between paragraphs (a)(1) it is inconsistent with the VA’s tradition hold an additional hearing. A single and (f). Initially proposed paragraph of giving claimants the opportunity to continue to produce and submit hearing provides full and fair (a)(1) provided for one hearing ‘‘at any evidence or argument as a claim opportunity to place demeanor evidence time on any issue’’. Initially proposed develops. It might be true that the one- in front of the decision maker, which paragraph (f) provided, as does current hearing rule could inhibit ongoing satisfies a primary object of personal § 3.105(i) from which it derives, that a production of evidence or argument hearings. The one-hearing rule with its beneficiary must request a hearing on throughout the time a claim is pending, paragraph (a)(2) allowance for a second the issue of reduction, discontinuance if a personal hearing were the only way hearing under the stated circumstances or other adverse VA action within 30 to submit evidence or argument to the provides a fair and rational balance days after receipt of a notice of VA’s record in a claim, but it is not. Section between the rights of the claimant and proposal to take the adverse action. 5.81, the regulation governing the resources of the department. Therefore, a hearing under paragraph (f) submission of evidence and argument Repeated interruption of the is not available ‘‘at any time on any generally, could scarcely be more adjudication process for hearings can issue’’. We propose to reconcile the two permissive regarding entering material result in confusion about the evidence paragraphs by beginning paragraph into the record in a claim: A claimant to review and in interminable delay, (a)(1), ‘‘Except as provided in paragraph may submit virtually anything, at almost both of the claims subjected to repeated (f),’’. This is not a change from current any time, by nearly any means. Nothing hearings and to the progress of the regulation. Compare §§ 3.103(c) (‘‘a in § 5.82 diminishes the right to submit claims of others who wait their turn. hearing on any issue at any time’’) with material to the record in a claim These are not inconsequential concerns. 3.105(i) (‘‘a predetermination hearing throughout the time the claim is If a claimant wants to submit new [if] a request . . . is received within 30 pending, except as limited by the rules arguments, he or she may do so in days’’). It merely clarifies the of the Board of Veterans’ Appeals for writing at any time. We therefore relationship between paragraphs (a) and submission of material after the AOJ propose to make no changes based on (f). This relationship exists between transfers a claim to the Board on appeal. these comments. §§ 3.103(c) and 3.105(i), but it becomes 38 CFR 20.1304. Another commenter asserted that the obvious when the provisions are The same commenter asserted the rule provision for an additional hearing is consolidated in a single section. is inconsistent with the current due likely to result in VA arbitrarily refusing We propose to revise the second to process right to a hearing before the an additional hearing that a claimant last sentence of initially proposed initial decision on a claim. The would use to respond to evidence that § 5.82(a), removing the statement commenter requested that we include a entered the record subsequent to the entitling a veteran to a hearing before provision informing the veteran of the first hearing, resulting in limiting a the Board of Veterans’ Appeals (Board). right to a hearing before VA makes a claimant to one hearing in almost all Instead, we propose to add a cross decision on a claim. We interpret the circumstances. After noting the criteria reference to the introduction to make comment to express concern that an for a second hearing in paragraph (a)(2), the reader aware of Board hearings and adverse decision in a claim could bias the commenter asserted that paragraph to distinguish between hearings at the a subsequent decision-makers, and that (a)(2) should provide for additional AOJ and at the appellate levels of a claimant would have to overcome that hearings ‘‘when warranted by adjudication. We propose this change bias in a subsequent hearing. Initially circumstances’’ or ‘‘for good cause’’ and because 38 CFR part 20 provides for the proposed paragraph (d) provided that ‘‘a authorize VA to refuse a second, third, right to a hearing before the Board, and VA employee or employees having or further additional hearing ‘‘when it is not appropriate to regulate Board decision-making authority and who did clearly unwarranted.’’ The commenter hearings in part 5. not previously participate in the case asserted that there are many

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circumstances that would warrant an (a)(2) exception provides full and fair VA’s rule on hearings does not derive additional hearing that would not meet hearing process to each claimant. from a statute on hearings, Congress’s the criteria in paragraph (a)(2). The A commenter objecting that § 5.82(a) silence about the matter does not imply commenter asserted that the claimant would limit a long-standing right to a congressional view of the regulation. should be able to testify to additional unlimited hearings, asserted that VA The cases the commenter cited for the matters even though the testimony had not provided an adequate rationale proposition that congressional failure to would not amount to newly discovered for its proposed fundamental change in revise a regulation is endorsement of it evidence or present a different witness. its historic and traditional hearing were instances of congressional action The commenter further asserted that practice. The preceding paragraphs state on a statute to which a certain paragraph (a)(2) would allow a claimant additional rationale for the change. regulation related. a second hearing for a new witness to Additionally, we do not agree that the The commenter also asserted as fact testify in corroboration of prior change is fundamental, because VA that ‘‘the legislative history associated testimony, that is, to provide cumulative hearing practice will continue to serve with congressional oversight of the testimony. The commenter concluded every function it has under current agency shows that Congress knew about that the several requirements for a § 3.103(c). VA’s practices governing personal second hearing, including that the The commenter further asserted that hearings and did not indicate that it hearing be the only way to present the ‘‘Congress has codified and ratified the disagreed with the agency’s practices.’’ evidence or testimony, is a license for agency’s traditional practice of As we noted above, congressional refusal by VA personnel to afford a providing claimants with multiple silence about a practice is not supplemental hearing in virtually all opportunities to appear for personal necessarily evidence of congressional cases. hearings.’’ The commenter asserted that endorsement. Id., at 120–21. Silence We recognize the commenter’s Congress is presumed to be aware of and about an agency practice in the context concern that the one-hearing rule will adopt an administrative interpretation of congressional knowledge and thwart a claimant’s legitimate desire to of a statute when it reenacts the statute consideration of a matter could, without change, citing Young v.Cmty. respond to developments during the however, be significant. The House Nutrition Inst., 476 U.S. 974, 983 (1986). pendency of the claim. The threshold Committee on Veterans’ Affairs was The commenter reiterated this point for obtaining a second hearing, however, authorized by enactment of the regarding additional hearings at the AOJ is a mere assertion of the factors in the ‘‘Legislative Reorganization Act of after the Board remands a claim if the exception paragraph. We see no basis 1946.’’ Public Law 79–601, sec. 121(a). claimant had a hearing before Board for the speculation that VA will See http://veterans.house.gov/history/ review of the claim. The commenter probably refuse almost all requests. It (World Wide Web site of the House asserted that Congress intended VA to Committee, visited Dec. 2, 2009). The seems likely that a claimant’s desire to continue its existing practice regarding Committee has oversight responsibility testify or present witnesses or evidence hearings at the AOJ when it enacted the for VA, which it exercises through the to rebut evidence that entered the record Veterans’ Judicial Review Act of 1988, Subcommittee on Oversight and after a prior hearing is exactly a Public Law 100–687, 102 Stat. 4105 Investigations. See http:// situation in which the claimant could (1988), and the Veterans Claims veterans.house.gov/oversight/ (World not have adduced the new evidence or Assistance Act of 2000, Public Law 106– Wide Web site of the oversight witnesses’ testimony before the 475, 104 Stat. 2096 (Nov. 9, 2000), subcommittee, visited Dec. 2, 2009). The evidence it would rebut was of record. without changing the law governing commenter does not cite any history of We do not agree that the standards for provision, number, or timing of VA the Subcommittee on Oversight and obtaining a second hearing invite personal hearings. The commenter did Investigations documenting its arbitrary or capricious refusal of not identify a statute the reenactment of knowledge or viewpoint on VA hearing requests for second hearings, or even which constituted Congressional practice, or say when during the more that VA will deny most requests. Rather, adoption of 38 CFR 3.103(c), from than 60-year history of congressional the rule the commenter proposed which § 5.82(a) derives. Neither of the oversight of veterans affairs an this ‘‘where circumstances warrant,’’ or ‘‘for statutes cited addresses VA hearing expression of knowledge happened. We good cause,’’ but ‘‘not when clearly practice. We are aware of no statute that are not aware of any history of unwarranted’’ are completely devoid of does. congressional oversight showing a standard of application; they seem far The right-to-a-hearing rule in endorsement of VA hearing practice. more likely to result in inconsistent § 3.103(c) is VA’s creation, promulgated Consequently, we propose to make no application than do the paragraph (a)(2) under the Secretary’s general rule- change in the initially proposed criteria. making authority in 38 U.S.C. 501(a). regulation based on the assertion that More basically, the commenter would Moreover, as judicial precedent specific congressional oversight history shows have VA afford additional hearings even to VA clearly shows, congressional that Congress has approved current though the claimant would present no silence on a regulation is not necessarily practice. new witness or evidence; even though adoption or endorsement of the The same commenter objected to the the claimant could present the regulation, or even an indication that language in initially proposed testimony of a new witness, or new Congress is aware of the regulation. § 5.82(a)(1) precluding a claimant who evidence, without a hearing; and even Brown v.Gardner, 513 U.S. 115, 120–21 had a hearing prior to an appeal to the though the claimant knew of the (1994) (Sixty-year congressional silence Board from having a second hearing if witness, evidence or argument at the about VA regulation did not ratify it; the Board remands the case, except as time of the first hearing and could have language of statute was plain, record of paragraph (a)(2) provides. The presented them. The commenter congressional discussion preceding commenter quoted from the AL82 ‘‘concede[d] that VA has a legitimate reenactment of the predecessor statute NPRM, emphasizing the discussion of interest in preventing duplicative and made no reference to VA regulation and current § 3.103(c), which stated, ‘‘The unnecessary hearings,’’ a point with there was no other evidence to suggest VA official conducting the hearing is which we do agree. We conclude that Congress was even aware of VA’s obligated to elicit any information or the one hearing rule with the paragraph interpretive provision). Certainly, where evidence not already of record in

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support of the benefit claimed.’’ 70 FR addressed all issues and fully provided We propose to make an additional 24680, 24683, May 10, 2005. The due process. change to initially proposed § 5.82(b) by commenter asserted that ‘‘as is so often If a hearing was defective, the removing the last sentence, that states, the case, the requirements of the law, claimant can assert so to the AOJ, or on ‘‘[t]estimony at a hearing will be under [sic] are conveniently forgotten by VA appeal to the Board. A defective hearing oath or affirmation.’’ We propose this litigation counsel when a veteran would not be legally sufficient to satisfy change because the requirement that the appeals to the U.S. Court of Appeals for the claimant’s right to one hearing. The testimony be under oath or affirmation Veterans Claims.’’ The commenter cited claimant would be in the position of not is also found in § 5.82(d)(2), where it is the Secretary’s brief in Colon v. having had a hearing. The one-hearing more clearly expressed. Including this Nicholson, 21 Vet. App. 96 (2006) (table, rule in paragraph (a)(1) would not bar requirement in § 5.82(b) is redundant unpublished decision), WL 2105515 repeating the hearing to cure the defect, and unnecessary. We propose to revise (text), as an example of VA excusing the and the claimant would not be subject the title of this paragraph to remove the failure of a hearing officer to execute the to the criteria in paragraph (a)(2) to reference to the requirement for oath or regulatory mandate to explain the issues obtain the new hearing. The claimant affirmation. and suggest evidence to submit. The could obtain this new hearing from the Initially proposed § 5.82(d)(1) stated, commenter quoted a passage from the AOJ. If the claimant appeals an adverse in pertinent part, ‘‘[t]he employee or brief that asserted that the appellant decision to the Board, the claimant can employees will establish a record of the could have cured the failure of the assert the deficiency in the hearing. A hearing and will issue a decision after Regional Office hearing officer to Board remand to cure a deficiency in a the hearing’’, which is substantially consider and discuss an issue in the personal hearing would not be subject to similar to the language in current case by having another personal hearing the rule against post-remand hearings in § 3.103(c)(1). One commenter asserted or by other means after the Board had paragraph (a)(1), because it would that the phrase ‘‘a record of the hearing’’ remanded the case. The commenter require AOJ implementation of a is too vague and urged VA to clarify that argued that VA’s argument in Colon specific order within the Board’s testimony cannot be ‘‘manipulated, ‘‘demonstrates . . . why VA should not authority. 38 CFR 19.9. Consequently, paraphrased, or summarized like limit a claimant’s right to appear for the one-hearing rule does not raise the minutes of a meeting.’’ The commenter personal hearings.’’ specter of deficient hearings without a urged that the witness’s exact words and complete statements be made a part of VA’s arguments or litigation strategy remedy for the claimant. Moreover, a the record. in a case on appeal to the court is remand from the Board alone is not VA normally transcribes the recording sufficient reason for another hearing in beyond the scope of this rulemaking, of the hearing and includes the light of the reasons expressed above for Whatever the argument or reason for an transcript of the hearing in the record of the one-hearing rule. If a remand from argument raised in litigation, litigation evidence. However, it would be the Board orders development of of a VA claim is far downstream in the inappropriate to require by regulation evidence, or otherwise results in the claims process from the hearings for that a transcript be prepared for every conditions that meet the criteria for an which § 5.82 provides. The commenter hearing. There are several reasons why asserted that VA’s argument in Colon additional hearing in paragraph (a)(2), the recording of the hearing may not be ‘‘shows that [VA’s] litigation counsel then the claimant can obtain the transcribed. For example, the VA have no qualms whatsoever in additional hearing. We propose to make employee conducting the hearing may presenting argument . . . to undermine no change to the rule based on the determine that all benefits sought the legal effect of the agency’s binding comment. should be granted. If all benefits sought regulations.’’ The commenter essentially We propose to reorganize initially are granted, there is no reason to expend argues that VA should allow unlimited proposed paragraph (a)(2) to make its resources to transcribe the recording of hearings because far downstream from three criteria visually clear by the hearing or to delay the promulgation the hearing the Secretary’s counsel designating them (i), (ii), and (iii). of the decision while waiting for the might argue to the court that a failure to Initially proposed § 5.82(b) stated, in recording to be transcribed. The follow a regulation was a harmless error pertinent part, that, ‘‘[t]he purpose of a decision granting the benefit would in a specific case. We do not agree that hearing under this section is to provide summarize the hearing testimony. Also, a right to unlimited hearings is likely to the claimant with an opportunity to the claimant may withdraw the claim preempt an argument at litigation, nor is introduce into the record of during the conduct of the hearing. In that an appropriate object of regulation. proceedings, in person, any available such situations, there is no need for a The commenter implicitly raised evidence, arguments, or contentions transcript. In either of these examples, another point worth addressing, that is, which he or she considers important to the claimant would gain nothing by the whether there is a cure for a defective the case.’’ One commenter asserted that VA’s expenditure of resources in hearing, and if so, whether the one- the term ‘‘contention’’ is redundant of transcribing the recording of the hearing rule thwarts that right. In the term ‘‘argument,’’ and that VA hearing. Finally, VA puts a transcript of practice, another hearing would cure a adjudicators often dismiss testimonial the hearing in the claims file if the defect in the original hearing, and the evidence as ‘‘mere contentions’’, citing claimant or beneficiary initiates an one-hearing rule will not inhibit that Hatlestad v. Derwinski, 1 Vet. App. 164, appeal from a decision. The verbatim remedy. VA and its hearing officers 169–70 (1991). testimony is thus part of the evidence of have various duties in conducting Merriam-Webster’s Collegiate record when the claimant or beneficiary hearings, such as to explain all issues Dictionary, 269 (11th ed. 2006), defines seeks appellate review. To require by and suggest the submission of evidence ‘‘contention’’ as ‘‘a point advanced or regulation that a transcript of the the claimant might have overlooked. A maintained in a debate or argument’’. recording of every hearing be prepared right to unlimited hearings is an overly The term ‘‘argument’’ includes the term would not assist the claimant and broad remedy for a defective hearing, ‘‘contention’’. We agree that it is would unnecessarily expend VA because it would result in many unnecessary to include both terms in resources. redundant hearings in cases in which § 5.82(b) and we propose to remove the Currently, VA prepares a transcript of the initial hearing had comprehensively word ‘‘contentions’’. the hearing if the VA employee

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conducting the hearing needs one in as to hearing testimony. The lack of a claimant missed the originally making a decision on the claim, if the finding of credibility of hearing scheduled hearing for good cause. In our claimant (or the claimant’s testimony, as with a failure to assess the view, a request to reschedule is representative) requests a copy, or if the credibility of any testimony or evidence, reasonable if the claimant failed to claim is to be sent to the Board of can be the basis on appeal of an report for good cause. VA’s long- Veterans Appeals. If the recording of the assertion that VA failed to state its standing practice has been that if a hearing is not transcribed, the recording reasons or bases for a decision. We claimant fails to attend the hearing with of the hearing is placed in the claims propose to make no changes based on good cause, VA will reschedule the folder so that if the hearing needs to be this comment. hearing. We agree with the commenter transcribed later, the tape or other Initially proposed § 5.82(e)(1) stated, that it would helpful to include this in recording medium is available. The ‘‘Normally, VA will not schedule a paragraph (e) and we now propose to current procedures adequately protect hearing for the sole purpose of receiving add such language. the claimant’s interests while providing argument from a representative.’’ This We reviewed initially proposed § 5.82 VA with greater efficiency in using our was based on current 38 CFR 3.103(c)(2) in connection with this comment, and resources. We propose to make no which states, ‘‘The Veterans Benefits determined that it might be unclear changes based on this comment. Administration will not normally whether the hearing procedures One commenter urged VA to require schedule a hearing for the sole purpose discussed in paragraphs (a) through (e) in § 5.82(d)(3) that adjudicators of receiving argument from a apply to ‘‘predetermination hearings’’ conducting hearings make express representative.’’ In reviewing § 5.82 to under paragraph (f). We propose to credibility findings on the record respond to comments, we noted that revise (f) by adding the word concerning the sworn, personal hearing paragraph (e)(1) provides no guidance ‘‘Additional’’ before the paragraph testimony of claimants and other on when VA will schedule a hearing for heading. It now reads, ‘‘Additional witnesses. The commenter averred that the sole purpose of receiving argument requirements for hearings before VA hearing officials deciding claims from a representative. Title 38 CFR proposed adverse actions.’’ The regularly fail to state the reasons for 20.700(b) states, in pertinent part, paragraph provides that before VA takes rejecting sworn hearing testimony. The ‘‘Requests for appearances by adverse action regarding a benefit, VA commenter asserted that a requirement representatives alone to personally will give the beneficiary notice of a right that hearing officers make specific present argument to Members of the to a hearing, and that the beneficiary has credibility findings is necessary to Board may be granted if good cause is 30 days to request a hearing. Reading compel hearing officers to include the shown. Whether good cause has been the heading and the paragraph together contribution of his or her assessment of shown will be determined by the makes it clear that the provisions of (f) the credibility of hearing testimony in presiding Member assigned to conduct modify the hearing procedures the statement of reasons for a decision. the hearing.’’ We believe that applying discussed in paragraphs (a) through (e). We decline to make this suggested a good cause standard to hearings at the The modifications consist of VA’s addition. Such findings are already agency of original jurisdiction would be unique notice requirement and the required by initially proposed § 5.83(a), fair to claimants and beneficiaries, and beneficiary’s 30-day limit to request a which requires VA to send each administratively efficient for VA, so we hearing. See discussion of distinction claimant a decision that explains, ‘‘[if] propose to add that standard to between paragraphs (a) and (f), above. a claim is not fully granted, the reason paragraph (e)(1). We have restated the rule in initially for the decision and a summary of the We propose to reorganize initially proposed paragraph (f) regarding the evidence considered. . . .’’ proposed § 5.82(e)(3) (now renumbered conditions under which VA will hold a Additionally, if VA were to specifically as paragraph (e)(4)) to make clear that it hearing prior to adverse action so it require VA personnel conducting addresses failure to report for a hearing reads in the affirmative, rather than in hearings to determine the credibility of under any circumstance. Paragraph the negative. That is, stating ‘‘VA will oral hearing testimony, the requirement (e)(4)(i) addresses failure to report conduct a hearing . . . only if . . .’’, could be misconstrued as emphasizing without good cause Paragraph (e)(4)(ii) rather than, ‘‘VA will not conduct a that type of testimony over others, or addresses failure to report with good hearing . . . unless . . . .’’ This change that they need not make credibility cause and the responsibility of the is consistent with part 5’s preferred findings on other types of testimony or claimant or beneficiary to request style of stating rules in the affirmative. evidence. A finding as to credibility of rescheduling. We have also removed the second testimony, or of any evidence, is One commenter urged VA to add a sentence of initially proposed paragraph fundamental to all weighing of provision to § 5.82(e) on rescheduling (f)(1) providing examples of good cause evidence. See Barr v. Nicholson, 21 Vet. hearings upon receipt of a reasonable for failing to report for a hearing. It is App. 303, 310 (2007) (‘‘On remand, the request from a claimant or beneficiary. the same as the last sentence of finder of fact must consider the VA’s long-standing practice has been to paragraph (e)(3). Paragraph (e) provides credibility and weight of Mr. Barr’s inform claimants and beneficiaries, in the rights and responsibilities of the statement, and any other competent lay the letter scheduling their hearing, how beneficiary regarding hearings generally. or medical evidence’’); see also, Layno to contact VA to reschedule the hearing. The provision need not be repeated in v. Brown, 6 Vet. App. 465, 469 (1994) Based on the comment, we have added paragraph (f), which comprises hearing (Credibility is a matter to consider after a new paragraph (e)(3) stating, ‘‘If a requirements in addition to those evidence or testimony has been claimant or beneficiary is unable to elsewhere in § 5.82. admitted). We agree with the attend a scheduled hearing, he or she One commenter noted that initially commenter’s statement that testimony is may contact VA in advance to proposed paragraph (f)(3) requires that evidence, and that the Secretary must reschedule the hearing for a date and VA ‘‘send the notice of the time and consider ‘‘all information and lay and time which is acceptable to both place for the predetermination hearing medical evidence of record’’. 38 U.S.C. parties.’’ at least 10 days before the scheduled 5107(b) (Benefit of the doubt). That does Similarly, another commenter argued hearing date’’ and urged that VA not mean that regulation must that VA should provide a claimant with provide similar advanced notice for specifically require credibility findings a right to reschedule a hearing if the hearings conducted under paragraph

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(d). We agree with this suggestion. VA adequate. They referred variously to the visual examination during a hearing and usually provides at least 10 days time it takes to deliver the mail, the a claimant’s right to request an advanced notice of hearings, and we distance a claimant or beneficiary must examination under 38 U.S.C. 5103A(d). propose to revise paragraph (d) to travel, and the time required to gather The commenter expressed the opinion provide the same 10 days notice as the funds or arrange for time off work that under current § 3.103(c)(2), a contained in paragraph (f). to attend a hearing. One commenter claimant has the right to have a VA One commenter urged VA not to use urged VA to adopt a rule providing for physician ‘‘read into the record’’ the the term ‘‘predetermination hearing’’ in ‘‘negotiated appointments acceptable to physician’s relevant observations but § 5.82(f), which describes hearings both parties, with at least 30 days’ under 38 U.S.C. 5103A(d) there is no conducted after VA proposes to take notice unless otherwise agreed.’’ guarantee that VA will grant a request some adverse action affecting benefits, Regarding the suggestion that we for a VA examination. The commenter but before rendering a decision. The revise initially proposed § 5.82(f) to also noted that under VA’s current commenter noted that a claimant may provide 30 days advanced notice of the regulation implementing 38 U.S.C. request a hearing at any time, including date of the hearing; we decline to make 5103A(d), 38 CFR 3.159, now § 5.90, VA prior to the initial decision on a claim, this change. Ten days is sufficient time does not provide examinations for which would also be a for beneficiaries to receive VA’s veterans seeking to reopen denied ‘‘predetermination hearing.’’ The scheduling letter and, if necessary, to claims. The commenter urged VA to commenter did not offer any suggestion contact VA to reschedule. VA already revise § 5.82 to authorize a visual as to what term VA should use in its has the inherent discretion to resolve examination by a physician. place. situations where a beneficiary needs Initially, we note that the claimant We agree that any hearing preceding more time. For example, if VA’s letter did not have a right to have a VA a determination can accurately be called arrived while the beneficiary was on physician ‘‘read into the record’’ the a ‘‘predetermination’’ hearing. The term vacation and the beneficiary was unable physician’s relevant observations, but ‘‘predetermination hearing’’ has been to reschedule before the hearing date, could request a visual examination by a used in current regulation 38 CFR VA would reschedule the hearing when physician. Provision of the visual 3.105(i) for many years and is widely the beneficiary contacted VA. Second, examination was at the discretion of the understood by VA adjudicators, we note that the 10-day provision has VA. The portion of the regulation veterans, and veterans’ representatives. been contained in § 3.105(i) for over 15 providing for a visual examination by a It is clear in § 5.82(f) what the term years and there have been few, if any, physician at a hearing was included in means and we are not aware of any complaints from beneficiaries about this the regulation at a time when the other term that would be more clear to provision. For these reasons, we regional offices had physicians (medical readers. Nonetheless, it is jargon and not propose to make no changes based on members) on the staff, usually as part of essential. A hearing is a hearing. The this comment. the rating board. At that time, the same rules apply to the conduct of the We propose to revise initially medical member would either attend hearing described in paragraph (f) as to proposed paragraph (f)(4), removing the the hearing or be available nearby any other hearing. The decision maker term ‘‘final’’ before ‘‘decision’’. The within the regional office if needed to must give the same consideration to the decision that follows a proposal to conduct the visual examination. testimony and evidence presented as reduce or discontinue a benefit is not a Regional offices rarely have a medical with any other hearing. The unique ‘‘final’’ decision as VA defines ‘‘final’’ member on rating boards any more. Few effect of a request for a hearing prior to in § 5.1. Like any other decision on regional offices have the capability of a possible adverse decision is that VA entitlement to benefits, it is subject to providing the visual examination by a will not reduce or discontinue the appeal and can become final by physician at the hearing location. The benefit payments prior to hearing. It is expiration of the time allowed to appeal provision for a visual examination this relationship of the request for a the decision, or because the Board of during the hearing is an anachronism hearing to the timing of any action Veterans’ Appeals has ruled on an and no longer practical. resulting from the decision whether to appeal from the decision. The decision Additionally, while there is no reduce or discontinue a benefit that gave to which paragraph (f)(4) refers is the ‘‘guarantee’’ that VA will grant a request rise to the term ‘‘predetermination’’ type of decision described in § 5.160 as for a VA examination, the language of hearing. This rule is in the last sentence ‘‘binding’’. Compare preamble to 38 U.S.C. 5103A(d) (‘‘necessary to make of § 3.105(i)(1), and initially proposed § 5.160, with § 3.104(a) (final and a decision on the claim’’) provides § 5.82(f)(4) restated it. The rule applies binding decision). sufficient assurance that VA will obtain regardless of whether the hearing has a In the NPRM, we initially proposed needed medical examinations. If an special name. For consistency not to include in § 5.82 the last sentence examination is necessary to make a throughout § 5.82, and to avoid any of current § 3.103(c)(2). We stated in the decision on the claim, one will be confusion of the sort the commenter preamble of the NPRM that the scheduled. If an examination is not highlighted, we propose to remove the provision is redundant because 38 necessary to make a decision on the modifying term ‘‘predetermination’’ U.S.C. 5103A(d), enacted in 2000, claim, a visual examination at a hearing prior to the term ‘‘hearing’’ in paragraph requires VA to provide a medical would be unlikely to assist the claimant. (f). examination if it is ‘‘necessary to make We also note that in most cases, it is Initially proposed § 5.82(f)(3) stated a decision on the claim’’. This preferable to have a claimant examined that VA will send the notice of the time § 5103A(d) examination or opinion by a physician in a medical office and place for a predetermination provision is now § 5.90(c)(4)(i), which (where testing equipment and privacy is hearing at least 10 days beforehand and derives from § 3.159(c)(4). available), rather than in a hearing room that this requirement may be waived by One commenter objected to our at a VA regional office. For these the beneficiary or representative. This proposal not to include the provision reasons, we propose to make no changes 10-day notice provision is currently concerning a visual examination by a to initially proposed § 5.82 based on this contained in 38 CFR 3.105(i). Three physician in part 5. The commenter comment. commenters asserted that this 10-day stated that there is significant difference Regarding the commenter’s suggestion advanced notice period is often not between a claimant’s right to request a that VA revise current §§ 3.159 or 5.90

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to require VA to provide examinations evidence from 1 year to 60 days, which the intent of this section) was not to for veterans seeking to reopen denied is disadvantageous to veterans. The deprive beneficiaries of the proper claims, this suggestion was made in commenter apparently has mistaken the effective date for restoration of benefits comments submitted during the initial time VA allows for a beneficiary to nor has VA applied the rule so as to promulgation of § 3.159. VA declined to submit evidence in response to a notice limit the rights of beneficiaries in this make such a change, because it would of a proposed adverse action with the manner. Rather, § 3.103(b)(4) serves the not be an appropriate ‘‘expenditure of time VA allows for a claimant to submit purpose of allowing VA to reverse an its finite resources’’ to do so. For the evidence in support of a claim for erroneous decision without requiring reasons stated in that rulemaking (66 FR benefits. Compare 38 CFR 3.159(b) with the beneficiary to file a Notice of 45628 (August 31, 2001)), we decline to 38 CFR 3.103(b)(2). Initially proposed Disagreement. This relieves the revise § 3.159 or its part 5 counterpart, § 5.83 is based on § 3.103, which also beneficiary of the burden of preparing § 5.90. states that the time period for a claimant and filing a written Notice of to submit evidence in response to a Disagreement (including the elements § 5.83 Right to Notice of Decisions and notice of adverse VA action is 60 days. required under 38 CFR 20.201, ‘‘Notice Proposed Adverse Actions. Therefore, we propose to make no of Disagreement’’). The process under One commenter asserted that the use changes based on this comment. § 3.103(b)(4) does not replace the appeal of the phrase, ‘‘the payment of benefits In responding to these comments, we process described in 38 U.S.C. 7105. or the granting of relief’’ could be determined that the initially proposed Rather, it provides a convenient and interpreted as more narrow than the rules failed to explain our omission of more efficient alternative means for provision in 38 U.S.C. 5104(a), which the substantively identical provisions beneficiaries to have their benefits reads, in pertinent part, ‘‘[i]n the case of found in paragraphs (d), (e), (f), and (h) restored. We therefore disagree that a decision by the Secretary under of 38 CFR 3.105, which state that before current § 3.103(b)(4) or initially section 511 of this title affecting the notice of a proposed adverse action is proposed § 5.84 is contrary to law. provision of benefits to a claimant, the sent to a beneficiary, ‘‘a rating proposing However, in order to avoid any Secretary shall, on a timely basis, severance will be prepared setting forth confusion that initially proposed § 5.84 provide to the claimant (and the all material facts and reasons.’’ We limits the rights of beneficiaries as claimant’s representative) notice of such believe that these provisions confer no described above, we are adding the decision.’’ The commenter urged VA to rights or duties and relate purely to following language as a new paragraph replace the phrase ‘‘the payment of internal agency procedures, so it is not (a)(2), ‘‘[t]his paragraph (a) does not benefits or the granting of relief’’ with necessary to include them in VA’s limit the right of a beneficiary to have ‘‘the provision of benefits’’. regulations. The due process guarantee benefits retroactively restored based on We disagree that the phrase ‘‘the of advance notice contained in the evidence submitted within the 1-year payment of benefits or the granting of second sentences of those paragraphs is appeal period under § 5.153, ‘Effective relief’’ would permit VA not to give included in proposed § 5.83(a). date of awards based on receipt of notice of decisions of which it would evidence prior to end of appeal have to give notice if the regulation used § 5.84 Restoration of Benefits Following Adverse Action. period.’ ’’ the statutory language. The proposed Also to avoid confusion, we have language is taken verbatim from 38 CFR One commenter asserted that both the inserted the word ‘‘written’’ before 3.103(b)(1) and is well understood to current and proposed rules were ‘‘information’’ in § 5.84 to distinguish include VA decisions that involve ‘‘contrary to law’’ because they imposed that term from ‘‘oral statements’’. monetary benefits and those that do not. a 30-day deadline in which the Switching to the statutory language beneficiary is required to contest the § 5.90 VA Assistance in Developing ‘‘provision of benefits’’ could be decision in order for VA to retroactively Claims. misinterpreted to mean only decisions restore benefits. The commenter noted In the NPRM, we stated: involving monetary benefits. We that under 38 U.S.C. 7105(b)(1), a Title 38 CFR 3.159 is currently the subject therefore decline to make the change beneficiary has 1 year to initiate a of a separate VA rulemaking which will suggested by this commenter. corrective action for an erroneous implement changes made by section 701 of The same commenter also noted that decision or action by VA. This would be Pub. L. 108–183, 117 Stat. 2670. When that the use of ‘‘proposed adverse action’’ in done by filing a Notice of Disagreement rulemaking is complete, we plan to repeat the paragraph (a) was confusing. The with the VA decision. The commenter language of the amended § 3.159 as § 5.90. also asserted that ‘‘any action based on We therefore propose in this rulemaking to commenter urged VA to strike the reserve space for proposed § 5.90. reference to proposed adverse actions nonexistent facts or false information and revise the second sentence of provided by a third party would be void (70 FR 24683 (May 10, 2005)) paragraph (a) for clarity. ab initio [from the beginning], and there VA has published the final rule In reviewing initially proposed § 5.83 is no time limit for requesting corrective amending 38 CFR 3.159 and we are now in response to this comment, we have action,’’ citing 38 U.S.C.A. 5109A(b) and inserting the current language of § 3.159 determined that paragraphs (a) and (b) 38 CFR 3.105(a). The commenter also as § 5.90 (RIN 2900–AM17, ‘‘Notice and should be reorganized for clarity. We noted that 38 CFR 3.156(b) and 3.400(q) Assistance Requirements and Technical have restructured these paragraphs so require that when VA reverses a Correction’’, 73 FR 23353, Apr. 30, that (a) covers only notices of proposed decision on appeal, the effective date 2008, with amendment 73 FR 24868, adverse actions and (b) covers only will be set as if the decision had not May 6, 2008; based on § 3.159). We notices of decisions. Consistent with been rendered. propose to remove the definitions of this structure, we have listed the We agree with the commenter that 38 competent medical evidence and elements which are contained in each CFR 3.156(b) and 3.400(q) require that competent lay evidence, revise the type of notice. when VA reverses a decision, the definition of competent expert evidence, Another commenter stated that effective date will be set as if the and place the definitions in § 5.1. We initially proposed § 5.83(b) decision had not been rendered. The have reorganized § 5.90 accordingly and (redesignated as paragraph (a)) would intent of § 3.103(b)(4) (see 66 FR 20220 changed the references to part 3 reduce the time VA allows to submit (Apr. 20, 2001)) for an explanation of regulations to refer to part 5 regulations.

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In addition to the provisions of 38 U.S.C. 5125 allows VA discretion to stated that, in order for VA’s § 3.159, we propose to include in § 5.90 accept or reject such evidence in each Compensation and Pension Service to the provisions of current § 3.109(a). individual case. We do not agree that approve requests for such opinions, the These provisions relate closely to the this process defeats the purpose of the claim must pose ‘‘a medical problem of other provisions in § 5.90 and so it is rule. This process allows VA the such obscurity,’’ complexity, or logical to move them into that rule. necessary discretion to reject private controversy. We agree that it would be However, we propose to clarify the reports which, although technically logical to state the criteria for such sentence, ‘‘Information concerning the ‘‘adequate for purposes of adjudicating opinions using the same terminology in whereabouts of a person who has filed a claim’’, VA considers to be potentially both paragraphs and we have removed a claim is not considered evidence’’ in biased or unreliable. We therefore the word ‘‘obscurity’’ from paragraph § 5.90(b)(3). This sentence means that if decline to make the change suggested by (c). Both paragraphs now use the a claimant submits information or this commenter. language used in the authorizing statute, evidence concerning his or her mailing Another commenter suggested that 38 U.S.C. 5109. address, that is not considered VA revise § 5.91 to require VA regional Another commenter urged VA to information or evidence under offices to ‘‘give a clear and precise revise § 5.92 to require that VA provide paragraph (b). We propose to revise the explanation for why the claimant’s claimants with copies of all sentence accordingly to clarify its medical evidence is not sufficient to communications between the VA meaning. The only other change we render a VA examination unnecessary.’’ regional office and the institution propose is that we have simplified the We decline to adopt this suggestion providing the independent medical scope sentence stated in § 3.109(a)(2) so because such an explanation would be opinion. The commenter asserted that, that it simply says that the rule applies of little use to claimants. VA has a duty ‘‘[s]uch a requirement for openness . . . to all part 5 applications. to make reasonable efforts to obtain the will ensure the fairness and integrity of Subsequent to the publication of evidence necessary to properly decide this new procedure.’’ proposed § 5.90, section 504 of Public each claim. In addition to the medical As a preliminary matter, we note that Law 112–154 (2012) amended 38 U.S.C. evidence provided by the claimant, VA the procedure to obtain an independent 5103 by removing the requirement that will schedule a VA examination if one medical opinion is not new and has a claimant submit ‘‘a complete or is ‘‘necessary to decide the claim.’’ See been contained in § 3.328 since 1990. substantially complete application’’ as a 38 U.S.C. 5103A. See also § 5.90. VA See 55 FR 18602 (May 3, 1990). VA is prerequisite to VA providing notice of obtains evidence from multiple sources required by 38 U.S.C. 5109 to furnish information and evidence needed to in most cases and it would be unduly the claimant with notice that an substantiate the claim. Section 504 also burdensome, and a waste of resources, advisory opinion was requested and amended § 5103 to relieve VA of the for VA to be required to explain why it also a copy of the opinion when it is requirement to provide such notice ‘‘to has obtained every piece of evidence. received by VA. See § 5.92(d). any claim or issue where the Secretary VA is required to explain the reasons for Furnishing the notice of the intent to may award the maximum benefit in any decision adverse to the claimant request the independent medical accordance with this title based on the and to include a summary of the opinion and a copy of the opinion to the evidence of record.’’ We propose to evidence considered in making the claimant sufficiently advises the include these statutory changes § 5.90. decision on the claim. See 38 U.S.C. claimant of the status of the Section 505 of Public Law 112–154 5104. See also § 5.83. These procedures independent medical opinion request (2012) extensively amended 38 U.S.C. adequately inform the claimant of the and results. We do not believe that it is 5103A regarding VA’s duty to assist relative probative value to any medical necessary to furnish the claimant with claimants. VA plans to conduct a evidence submitted and we propose to notice or a copy of every rulemaking to implement § 505 in part make no changes based on this communication VA may have with the 3 and will incorporate those part 3 comment. individual or organization preparing the regulations into part 5. independent medical opinion. Such § 5.92 Independent Medical Opinions. communications as a telephone call or § 5.91 Medical Evidence for Disability In initially proposed § 5.92 we an electronic mail message to clarify a Claims. repeated the content of current 38 CFR typographic error or other minor issues One commenter urged VA to replace 3.328 without change. would not assist the claimant in the the word ‘‘may’’ with ‘‘shall,’’ One commenter expressed concern presentation of the claim. Additionally, concerning the acceptance of private that § 5.92 could be confusing by records of these communications may medical evidence, because this would implying that VA will obtain be obtained by the procedures discussed be consistent with the Congressional independent medical opinions in place earlier concerning the procedures for a intent behind 38 U.S.C. 5125. Although of VA medical examinations. We do not claimant to obtain copies of evidence. that statute uses the word ‘‘may,’’ the agree and we propose to make no We propose to make no changes based commenter asserts that Congress meant changes based on this comment. on this comment. to give VA authority to accept private Initially proposed § 5.92 did not state or One commenter urged VA to include medical examination reports in place of imply that we would not comply with a provision in § 5.92(d) allowing a VA examination reports, but that once the provisions of § 3.159. The evidence claimant a specified period of time to VA has determined to accept such obtained under the provisions of § 5.92 respond to an independent medical private reports generally, it cannot will generally supplement the other opinion that is adverse to the claimant. accept or reject such reports ‘‘on a medical evidence with an independent We do not believe this change to be whim’’. The commenter asserted, medical opinion ‘‘[w]hen warranted by necessary because, at the time that VA ‘‘[s]uch unwarranted discretion defeats the medical complexity or controversy’’. is seeking the independent medical the very purpose of the rule.’’ Another commenter noted that opinion, the claimant is informed that We disagree that Congress’ intent was § 5.92(a) gave VA authority to obtain an the independent medical opinion is merely to give VA authority to accept independent medical opinion when being sought and also what specific private medical examination reports ‘‘warranted by the medical complexity information is being sought. This generally. Rather, the plain language of or controversy’’ while paragraph (c) provides the claimant ample time and

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opportunity to seek, obtain, and submit ending date information here would be monetary cost and human resources their own independent medical opinion redundant. expended. Routinely sending certified should they wish to do so. We also note One commenter felt that VA should mail to veterans, claimants, or that once the claimant receives a copy revise this regulation since the beneficiaries is not necessary, nor, in of the independent medical opinion, commenter felt that sometimes a VA most situations, helpful to the veterans, even if the claim has been denied, he or letter may be signed after the last mail claimants, or beneficiaries. VA provides she has the opportunity to respond. We pickup for that day. The letter would sufficient time for a veteran, claimant, propose to make no changes based on not actually be mailed until the or beneficiary to respond to the this comment. following workday. The commenter felt communications we send them. It is not that this rule provided for a ‘‘convenient burdensome for the veteran, claimant, or § 5.93 Service Records Which Are Lost, and arbitrary assumption that disfavors beneficiary to respond, when necessary, Destroyed, or Otherwise Unavailable claimants.’’ A second commenter within the time limits specified in the One commenter asserted that the force agreed, stating that the word communication. The additional two or of § 5.93 is diminished due to the ‘‘considered’’ should be removed from three days that would be provided by confusing use of terminology. The the second to last sentence in order to starting the time period from date of commenter argued that the phrase, avoid having VA rely on a date that it receipt instead of date of mailing would ‘‘alternative evidence’’ should be may know to be erroneous. rarely assist a veteran, claimant, or replaced with, ‘‘evidence from We propose to make no changes based beneficiary. For these reasons, we alternative sources.’’ Upon review of the on this comment. This regulation decline to make any changes based on regulation, we propose to change the provides that the first day of the this comment. regulation according to the commenter’s specified time period will be excluded suggestion. As noted by the commenter, in computing the time limit for any § 5.101 Requirement To Provide Social the evidence sought may be a copy of action required of a claimant. This Security Numbers the missing evidence, not alternate ensures that the claimant is generally Initially proposed § 5.101 explained evidence. provided the full time period. the statutory requirement that claimants Additionally, the time periods provided and beneficiaries must provide VA with § 5.99 Extensions of Certain Time allow ample time for the claimant to their Social Security numbers and their Limits respond. While it is true that the 1-day dependents’ numbers. In the AL82 NPRM, we inadvertently grace period provided by not counting One commenter urged VA to excuse failed to include provisions contained the date of the letter in the time period those claimants or beneficiaries who, for in current 38 CFR 3.109(b). We are does not provide for those situations good cause, fail to provide their Social doing so now in § 5.99. This rule where the letter is dated on a Friday Security number. The commenter urged restates § 3.109(b) without substantive afternoon, but not actually posted until that, if VA reduces or discontinues change. We are clarifying in § 5.99(c) Monday, the claimant still has been benefits, it should resume the benefits that while late requests for extensions provided sufficient time to respond to retroactively from the effective date of will be permitted under some any requests for information or the reduction, if the person had good circumstances, as is currently the case, evidence. cause for the failure. no extension of time will be granted One commenter urged VA to adopt a We note that, as stated in initially after VA has made a decision on the system of notice for determining the proposed § 5.101(f), ‘‘A claimant or claim to which the information or time periods for claimants or beneficiary is not required to provide a evidence relates and the time to appeal beneficiaries’ responses similar to that Social Security number for any person that decision has expired. found in 41 U.S.C. 609(a)(3), which to whom a Social Security number has provides that the period of time begins not been assigned.’’ Other than this, we § 5.100 Time Limits for Claimant or running when the notice has been are unaware of any reason which would Beneficiary Responses received. VA currently begins the period constitute good cause for a claimant or One commenter felt that VA should of time from the date of mailing as beneficiary failing to provide VA with specify that the holidays referenced in shown by the date of the letter sent to his or her Social Security number, nor the regulation are Federal holidays. We a claimant or beneficiary. The does the commenter offer any such agree and have added the word, commenter felt VA could better afford example. We therefore propose to make ‘‘Federal’’ before holidays in § 5.100(a). the minor expense of certified mail than no change based on this comment. One commenter felt that this could the claimant or beneficiary. Initially proposed § 5.101(d) stated, regulation should specify whether the VA communicates with claimants and ‘‘[i]f a claimant or beneficiary provides date of mailing or the date of receipt by beneficiaries at various stages in the VA with the requested Social Security VA would be the ending date of the adjudication process, using various number, VA will resume payment of applicable time period provided to a means. It would not be appropriate to benefits at the prior rate, effective on the claimant to respond to a VA regulate the manner of all such date VA received the Social Security communication. We propose to make no communications because VA needs number, provided that payment of changes based on this comment. This discretion to use the most effective benefits at that rate is otherwise in regulation is intended to specify how to means of communications and because order.’’ One commenter noted that calculate a time limit. Within part 5, such means may change over time. under paragraph (d), if a claimant or where a response is required to be Additionally, VA routinely sends beneficiary failed to furnish the required submitted within a certain time, all the hundreds of thousands of pieces of mail Social Security number within the sections specify how the ending date of to veterans, claimants, and beneficiaries, deadline but later provided it, VA the applicable time period provided to as well as their representatives. While would pay benefits only from the date a claimant will be calculated. This is the burden for sending any one piece of it received the Social Security number. generally the date of receipt by VA of mail by certified mail is small, the The commenter noted that § 5.101 whatever evidence or information is expense and time required to send all would treat claimants and beneficiaries requested, if received within the notices by certified mail would be disparately in that if they ultimately applicable time period. To include the overwhelming, both in increased provided VA their Social Security

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number, the former would have benefits met all the entitlement criteria for the form filed under paragraph (1) for the granted from the date of claim, while benefit during the entire retroactive individual may be signed by a court- the later would have benefits restored period. This would consume appointed representative, a person who only from the date he or she provided considerable VA resources when is responsible for the care of the the number. The commenter objected to compared with the rule proposed in individual, including a spouse or other this disparate treatment, asserting: § 5.101(d). Furthermore, there is no relative, or an attorney in fact or agent When a claimant receiving benefits is indication that our proposed rule authorized to act on behalf of the requested to provide a social security number creates a hardship for beneficiaries. For individual under a durable power of and does not promptly comply, VA may these reasons, we propose to make no attorney. If the individual is in the care certainly administratively suspend payment change based on this comment. of an institution, the manager or (‘terminate the payment’) of benefits Initially proposed § 5.101(e), entitled, principal officer of the institution may pursuant to § 5101(c), but the benefits should ‘‘Claimant’s application for VA sign the form. The term ‘mentally be resumed effective the date of suspension benefits’’, stated, ‘‘[i]f 60 days after VA incompetent’ with respect to an if the requested information is provided requests a Social Security number, the individual means that the individual within 1 year. Such a rule would be claimant fails either to provide the consistent with the time an applicant has to lacks the mental capacity— requested Social Security number or to • To provide substantially accurate provide the social security number under show that no Social Security number sections 5102(c) and 5103(b) and the general information needed to complete a form; rule in 38 CFR 3.158 (2004) that a claim will was assigned, VA will deny the claim.’’ or be considered abandoned only if the One commenter objected to this • to certify that the statements made requested information is not provided within provision, noting that it did not include on a form are true and complete. 1 year. a provision allowing a claimant 1 year to submit his or her Social Security Section 502 also added Taxpayer The commenter asserted that this rule number. The commenter noted that 38 Identification Number (TIN) to the would be contrary to 38 U.S.C. 5102 and U.S.C. 5102 and 5103 allow a claimant Social Security number requirement in 5103, which do not explicitly authorize 1 year to provide the information § 5101. We have updated § 5.101 to VA to reinstate benefits only from the needed to complete an application. The reflect these statutory changes. date a beneficiary ultimately provides commenter noted that while VA has the VA his or her Social Security number. § 5.103 Failure To Report for VA authority to deny the application earlier Examination or Reexamination In reviewing paragraph (d) in response than the expiration of the 1 year period, to this comment, we noted that VA if the information is received no later The preamble to initially proposed cannot ‘‘resume’’ payments to a than 1 year after VA’s request, VA must § 5.103 stated that part 5 would not claimant, since VA has not begun reconsider the application as if the repeat § 3.655(a) because it is paying such a person. We therefore information had been furnished on the unnecessary. 70 FR 24680, 24685, (May propose to remove the term ‘‘claimant’’ application. 10, 2005). To clarify, that statement from this paragraph, so that it would After reviewing the applicable correctly applies only to the first relate only to beneficiaries and not to statutes and VA’s other regulations, we sentence of § 3.655(a). The examples of claimants. agree with the commenter that it would good cause in § 5.103(f) derive from the Regarding the disparity noted by the be appropriate to clarify that a claimant second sentence of § 3.655(a). commenter, we first note that it is not has 1 year in which to submit the One commenter felt that the examples inconsistent with the relevant statutes, requested Social Security number. We provided in the regulation to determine 38 U.S.C. 5101–5103. Sections 5102– therefore propose to add a sentence to what constitutes ‘‘good cause’’ for 5103 only cover claims, not running § 5.101(e), based on a provision from failure to report for a scheduled VA awards, so they are not germane to the § 5.90(b)(1)(i) (based on current 38 CFR examination were too narrow and may disputed provision. Section 5101(c)(2) 3.159(b)(1). This new sentence states, lead VA to apply too high a standard to states that ‘‘the Secretary shall deny the ‘‘[i]f VA denies the claim or denies determine what constitutes ‘‘good application of or terminate the payment benefits for the dependent, and the cause’’. of compensation or pension to a person claimant subsequently provides the The examples of ‘‘good cause’’ for who fails to furnish the Secretary with Social Security number no later than 1 failure to report for a scheduled VA a social security number required to be year after the notice, then VA must examination in initially proposed furnished pursuant to paragraph (1) of readjudicate the claim.’’ § 5.103(f) are the same examples this subsection. The Secretary may In making this proposed change based included in the full revision of thereafter reconsider the application or on the comment, we noted that the 60- § 3.655(a), effective December 31, 1990. reinstate payment of compensation or day deadline in 38 CFR 3.216 applies 55 FR 49520, Nov. 29, 1990. The last pension, as the case may be, if such only to beneficiaries, not to claimants. sentence of § 5.103(f) is new and person furnishes the Secretary with In order to be consistent with requires that VA consider each reason such social security number.’’ § 5.90(b)(1)(i), we propose to revise the given for missing a VA examination on This statute, and its implementing 60-day period in § 5.101(e) to 30 days. a case-by-case basis. Use of the regulation 38 CFR 3.216, leave a gap In addition to being consistent with examples that have been in place since regarding the effective date for the § 5.90(b)(1)(i), we believe that 30 days is 1990, together with the last sentence, reinstatement of benefits. VA’s long- sufficient time for claimants to provide ensures that determinations concerning standing practice has been to resume VA with requested Social Security whether the veteran had ‘‘good cause’’ benefits effective the date the numbers. for not reporting to the examination will beneficiary ultimately provides the Subsequent to the publication of not change. We propose to make no social security number. If the rule were proposed § 5.101, section 502 of Public changes based on this comment. changed as the commenter urges, VA Law 112–154 (2012) amended 38 U.S.C. One commenter recommended not would in such cases have to make 5101 by adding a new paragraph stating repeating § 3.655 in part 5. We disagree retrospective determinations, in some if an individual has not attained the age because if VA did not repeat this rule, cases going back many years, on of 18 years, is mentally incompetent, or there would be no rule about how to whether the former beneficiary actually is physically unable to sign a form, a proceed with adjudication if a claimant

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fails to report for an examination that imprecise initial rating. In contrast, monetary allowance based on spina VA has concluded is necessary to current medical information is likely to bifida under 38 U.S.C. chapter 18. We decide the claim. The commenter did be lacking and indispensable to believe that when read in conjunction not state how it would benefit claimants deciding the other types of claims with § 5.57(b), this term is logical and or VA to do without it. Omission of this named in the regulation. understandable. rule would risk disparate treatment of The predicate for ordering an We have not defined the term ‘‘new claimants with similar claims. Avoiding examination is that the information to claim’’. Based on this comment, we are disparate results in similar situations is be gained from it is necessary to removing the term from § 5.103(b)(2). an important object of regulations. To establish entitlement or confirm We have determined that the term is not promote this objective, VA will repeat continued entitlement to a benefit. In needed to assist the reader in the rule in part 5. other words, if VA has determined that understanding what is intended by this The same commenter recommended, it cannot decide a claim, or an element regulation. alternatively, significantly revising the of a claim, without the evidence derived In addition to the comment about regulation to eliminate several problems from the examination, it would specific terms, the commenter asserted he said it has. The commenter asserted squander resources valuable to the that VA should revise the regulation so there is no logical reason to distinguish entire veteran community to adjudicate its terms are understandable to between original and other claims. We the claim, and it preserves resources to laypersons and ‘‘fall within the rest of interpret the comment to mean that VA deny the claim upon failure to report for the regulatory framework.’’ The should treat a failure without good the examination without good cause. commenter further asserted that the cause to report for a VA examination the We therefore propose to not make any regulation does not fit within the same whether the examination is for an changes in response to this comment. existing statutory framework and original disability compensation claim The object of a VA examination in an opinions of the [VA] General Counsel. or for any other claim. original disability compensation claim The commenter did not explain how the Before 1991, § 3.655 was silent about could be to address one of the elements regulation fails to fit within VA’s VA examinations in original disability of proof of service connection, see statutory or regulatory framework or cite compensation claims. 38 CFR 3.655 § 5.243, ‘‘Establishing service any precedent opinion of the General (1990). It applied only to rating action connection for a current disability.’’, to Counsel that the regulation violates. to be taken upon a failure to report for ascertain the current severity of Consequently, we do not find anything examination of a beneficiary with an disability (a determination VA initially in this comment to which VA can ongoing award of benefits, providing for makes upon finding that a disability is respond, and we propose to make no discontinuance of payments. See service connected), or both. Though the changes to the regulation in response to Wamhoff v. Brown, 8 Vet. App. 517, 520 examination could be indispensable to it. (1996) (discussing historical § 3.655). making the most accurate current rating, Finally, the commenter recommended VA amended § 3.655 in 1990 to include the benefit to the claimant and an ‘‘escape clause’’ that precludes the requirement to report for VA practicality of deciding the service- ‘‘endless good cause.’’ The object would examination (formerly in § 3.329, which connection element of the claim be to permit VA to decide a claim after it rescinded) and to provide for unique warrants the unique treatment of a year if a claimant fails to report for an treatment of original disability original compensation claims. examination for a good cause of compensation claims upon the The same commenter asserted the indefinite duration, such as being in a claimant’s failure to report for distinction between types of claims coma. The commenter suggested that examination. invites fraud. The commenter did not the regulation should provide for VA to There are good and practical reasons explain how the distinction would reschedule an examination missed for to treat the failure to report for an invite fraud. We propose to make no good cause if that good cause ends examination in an original claim for changes based on this comment. within 1 year. We construe the disability compensation differently than The same commenter noted that we commenter to mean that if the good in other claims. Establishing that a had not defined the terms, ‘‘other cause for failure to report for a VA disability is service connected is an original claim’’ and ‘‘new claim.’’ The examination persists for more than a element of an original claim for commenter noted that neither term is year after the date of the examination disability compensation that precedes found in the applicable statutes. The appointment the claimant did not keep, determination of the severity of commenter felt this section should be VA would decide the claim on the disability. See Barrera v. Gober, 122 revised so that the terms are understood evidence of record. F.3d 1030, 1032 (Fed. Cir. 1997) by claimants and so that the terms fit We will not add the suggested (explaining ‘‘up stream’’ and ‘‘down within the regulatory framework. provision for five reasons. First, the stream’’ elements of veterans benefits In § 5.57, we defined several types of suggestion would abrogate the claims); Grantham v. Brown, 114 F.3d claims. We defined ‘‘original claim’’ in distinction between original disability 1156, 1158–59 (Fed. Cir. 1997). § 5.57(b) as ‘‘the first claim VA receives claims and other claims. Whether the Evidence sufficient to decide whether a from an individual for disability claimant failed to report for good cause disability is service connected is likely benefits, for death benefits, or for or no cause, without the examination to be of record without the examination, monetary allowance under 38 U.S.C. that VA determined is necessary to for example, in the case of a battlefield chapter 18.’’ Although not defined in decide a claim (other than an original amputee or a veteran who contracted a the statutes, the term ‘‘original claim’’ is disability compensation claim), the presumptively service-connected found in 38 U.S.C. 5110 and 5113. status of the evidence would still be chronic disease. Even though the Consistent with how the term is used in such that VA could not grant the claim evidence of record might be current 38 CFR 3.655(b), our use of without the examination. Second, it is uninformative about the current extent ‘‘other original claim’’ was intended to to the advantage of a claimant to of disability, it is practicable and mean any original claim arising under suspend the claim until the contingency efficient to decide such a claim on the part 5 other than an original disability that prevented the claimant from evidence of record without the compensation claim. This would reporting for the examination is examination, even at the risk of an include, for example, a claim for a removed, because it leaves the claimant

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in control of his or her claim. Third, procedure. We propose to set forth this broad language of the regulation and our there is negligible cost or burden to VA important point in paragraph (a). stated intent to cover all types of to suspend adjudication while the good submissions, we are explicitly including § 5.104 Certifying Continuing cause of the claimant’s inability to claimants. All claimants and Eligibility to Receive Benefits report for an examination persists. beneficiaries, or their representatives or Fourth, there is no advantage to VA to In initially proposed § 5.104(c), we fiduciaries, must meet all requirements decide a claim it has determined lacks removed the reference to the effective of this section, such as using a specific crucial evidence. Deciding a claim date provisions. In part 5, the effective form providing specific information, sooner rather than later under these date provisions are not contained within providing a signature, or providing a circumstances is not sufficient reason one regulation, but are located with the certified statement. for the rule the commenter suggests. The regulation concerning the benefit to The initially proposed rule referred to failure to report for an examination for which the provisions apply. To include ‘‘other electronic means’’ of good cause is not like the failure to these provisions would result in an submissions. We propose to add ‘‘that submit requested evidence that VA may extremely long and complex paragraph the Secretary prescribes’’ in paragraphs consider abandonment of a claim. which would not be helpful to the (a)(1) and (b)(1), to clarify that VA will § 5.136, ‘‘Abandoned claims’’. Finally, claimants or beneficiaries. determine the means or medium of submission it will accept. Additionally, the claimant can always eliminate the Changes in Terminology for Clarity and/ this phrase allows for technological need for a VA examination by or Consistency submitting other medical reports changes over time. sufficient to serve as a VA examination. The changes in terminology in this Whereas the initially proposed § 5.91(a), ‘‘Medical evidence rendering final rulemaking are made primarily for regulation did not address claimants, it VA examination unnecessary.’’ If the purpose of achieving consistency did not distinguish between them and claimant submits a medical report that throughout our part 5 regulations. We beneficiaries. We propose to revise the VA accepts as adequate to the needs of replaced the word ‘‘evaluation’’ with regulation to distinguish between the the claim, the examination for which ‘‘rating;’’ the term ‘‘on behalf of’’ with media that claimants may use to file the veteran cannot report would cease to ‘‘for’’ or ‘‘to or for’’ where appropriate; statements, evidence, or information, be one necessary to establish and the word ‘‘notify’’ with ‘‘send and the media that beneficiaries may entitlement to the benefit claimed. The notice to’’. As noted earlier, we are use. VA currently accepts email and oral question of how VA should respond to removing the modifying term submissions only from beneficiaries, not a failure to report for a necessary VA ‘‘predetermination’’ prior to the term from claimants. As revised, paragraph (a) would address submissions from examination for good cause would be ‘‘hearing’’. claimants and provide the acceptable moot. General Evidence Requirements, media for those submissions. Paragraph In reviewing initially proposed Effective Dates, Revision of Decisions, (b) would address submissions from § 5.103, we noted that the last two and Protection of Existing Ratings AM01 beneficiaries and allow submissions, sentences of paragraph (d)(1) stated, In a document published in the either orally or by email. Paragraph ‘‘The letter [proposing to reduce or Federal Register on May 22, 2007, we (b)(4) would prescribe VA action upon discontinue benefits] must include the proposed to amend Department of receipt of an oral statement. date on which the proposed Veterans Affairs (VA) regulations One commenter questioned why we discontinuance or reduction will be governing general evidence used the word ‘‘may’’ instead of ‘‘will’’ effective, and the beneficiary’s requirements, effective dates, revision of when referring to how VA will use procedural rights. See §§ 5.80 through decisions, and protection of existing verbal information provided by a 5.83.’’ We believe it would be more ratings, to be published in part 5. 72 FR beneficiary or fiduciary. We explained precise to refer the reader to the 28770, May 22, 2007. We provided a 60- in the preamble to the proposed rule procedural rights which are listed in day comment period that ended July 23, that the word ‘‘may’’ was more accurate such a letter. We therefore propose to 2007. We received submissions from because ‘‘VA may determine that the restate the sentences as ‘‘The notice five commenters: Paralyzed Veterans of information or statement needs to be must include the date on which the America, Vietnam Veterans of America, verified through other means’’. proposed discontinuance or reduction Disabled American Veterans, and two However, the commenter pointed out will be effective, and the beneficiary’s members of the general public. that VA will use the evidence, even if procedural rights as listed in § 5.83(a)(1) it is just to ‘‘initiate an investigation to through (4).’’ § 5.130 Submission of Statements, . . . confirm and continue an existing In responding to these comments, we Evidence, or Information Affecting award’’, or to contradict prior evidence. noted that the initial NPRM failed to Entitlement to Benefits We agree with the commenter as the explain our addition of the third We propose to revise and reorganize comment applies to the proposed use of sentence of § 5.103(a): ‘‘If a claimant or initially proposed § 5.130 for clarity. We ‘‘may’’ in proposed paragraphs (c)(1)(iii) beneficiary, with good cause, fails to propose to add the word ‘‘claimant’’ to and (2)(v). We propose to change ‘‘may’’ report for a VA examination or the regulation to accurately reflect that to ‘‘will’’ in redesignated paragraphs reexamination, VA will reschedule the this regulation covers submissions by (b)(4)(iii) and (iv)(E). We have also examination or reexamination.’’ Though both claimants and beneficiaries. decided that the phrase ‘‘VA may take §§ 3.326(a) and 3.327(a) provide for Proposed § 5.130 was derived from action’’ used in proposed paragraph (b) scheduling VA examinations, and § 3.217, which was originally issued to is more accurately stated as ‘‘VA will § 3.655 prescribes VA action upon a permit modification of existing awards take appropriate action’’, and propose to claimant’s failure to report for a based on electronic and oral reporting of make this change accordingly. That is necessary examination without good changes, including, but not limited to, because whether VA takes any action cause, nothing in part 3 specifically income and dependents. See 66 FR that affects entitlement to benefits and states that VA will reschedule an 20220, Apr. 20, 2001. The reference to what type of action it will take will examination a claimant missed with ‘‘beneficiary’’ reflects that original, depend on the content of the good cause, which is VA’s standard limited purpose. However, given the submission.

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We also propose to change ‘‘affecting initially proposed rule. The error was in where ‘‘an individual who can write his the [claimant’s or beneficiary’s] the misspelling of the word ‘‘belief’’. We or her name may choose to make a mark entitlement to benefits based upon’’ to acknowledge the typographical error but or sign by thumbprint’’. We recognize ‘‘in response to’’. This is because a find no need to make the suggested the possibility of the hypothetical posed submission might not affect entitlement change because the error is not by the commenter, however, it is to benefits. The entire clause now reads, substantive and is contained within the unlikely that a person who is capable of ‘‘VA will take appropriate action in preamble language to the proposed rule signing would choose the more response to the statement, evidence, or which will not be published again. burdensome witness/certification information.’’ We have made this process. Even if that occurred, the § 5.132 Claims, Statements, Evidence, change, and the change discussed in the witness/certification process would be or Information Filed Abroad; preceding paragraph, in paragraphs adequate to verify the person’s identity Authentication of Documents From (a)(3) and (b)(3), which are parallel and therefore not cause a problem. We Foreign Countries provisions applying to claimants and to decline to make any change based on beneficiaries, respectively. Initially proposed § 5.132(a) that comment. Based on this comment, we have also incorrectly grouped together claims, decided that it would be more accurate statements, information, and evidence, § 5.135 Statements Certified or Under to say that VA will use the statement leading to the absurd implication that, Oath or Affirmation described in proposed paragraphs under the terms of the regulation, a One commenter noted that initially (b)(4)(iii) and (iv)(E) ‘‘to determine claim could be filed in support of a proposed § 5.135(b) only applied to entitlement’’ as well as ‘‘to calculate claim. Therefore, we propose to revise evidentiary requirements for claims for benefit amounts’’. Accordingly, we § 5.132(a) to separate a ‘‘claim’’ from a service connection, even though we propose to add the phrase ‘‘to determine ‘‘statement, information, and evidence.’’ stated in the preamble that we proposed entitlement’’ in those paragraphs as Additionally, we reviewed § 3.108, the to apply the evidentiary requirements redesignated. We also propose to revise part 3 provision from which proposed equally to all claims for compensation this sentence from passive voice to § 5.132(a) is derived, and now propose or pension benefits. We agree with the active voice. to reinsert the introductory clause from commenter and therefore propose to Initially proposed § 5.130 used the that section. The introductory clause of remove the restrictive language ‘‘for term ‘‘form’’. This term is no longer § 3.108 explains that certain Department service connection’’ in § 5.135(b). Any used in part 5. For consistency, we of State representatives in foreign documentary evidence or written propose to change the term from ‘‘form’’ countries are authorized to act as agents assertion of fact filed by the claimant or to ‘‘application’’, which is currently for VA. We believe that this on his or her behalf, for purpose of defined in § 5.1. information, which was not in initially establishing a claim, must be certified or Initially proposed § 5.130(a)(1) stated: proposed § 5.132(a), will be valuable to under oath or affirmation. However, as It is VA’s general policy to allow the reader in understanding the agency the rest of the subsection provides, VA submission of statements, evidence, or relationship between the Department of may consider a submission that is not information by email, facsimile (fax) State and VA, and we propose to add it certified or under oath or affirmation if machine, or other electronic means, unless a to paragraph (a). VA considers certification, oath, or VA regulation, form, or directive expressly Finally, the regulation text in initially affirmation unnecessary to establish the requires a different method of submission proposed § 5.132 limits evidence of reliability of a document. The language (for example, where a VA form directs establishing birth, adoption, marriage, of the subsection has been revised for claimants to submit certain documents by regular mail or hand delivery). This policy annulment, divorce, or death to copies clarity. does not apply to the submission of a claim, of ‘‘public’’ or ‘‘church’’ records without In initially proposed § 5.135(b) we Notice of Disagreement, Substantive Appeal, referencing other religions or religious stated, ‘‘Documentary evidence includes or any other submissions or filing institutions. We propose to add ‘‘other records, examination reports, and requirements covered in parts 19 and 20 of religious-context’’ records to the transcripts material to the issue received this chapter. regulation text in proposed § 5.132(c)(5) by VA from State, county, or municipal In reviewing this paragraph in in order to recognize that other religions governments, recognized private responding to comments, we or religious records, besides church institutions, or contract hospitals.’’ We determined that the last sentence might records, may suffice. have determined that the phrase be misconstrued to mean that a claimant ‘‘material to the issue’’ is inaccurate § 5.134 VA Acceptance of Signature by may not file a claim, a Notice of because this paragraph applies Mark or Thumbprint Disagreement (NOD), a Substantive regardless of whether the evidence is Appeal, or other item covered in 38 CFR One commenter noted that the style of material or not. We therefore propose to parts 19 or 20 electronically. This was the title of this section as a question was remove this phrase. inconsistent with other section titles not our intent. Section 5.130 concerns § 5.136 Abandoned Claims submission of a statement, evidence, or throughout this part. The commenter information, and not submission of suggested an alternative title that In the proposed rulemaking, we claims. Filing requirements for an NOD ‘‘would more closely parallel that of the reserved § 5.136. 72 FR 28770, May 22, and for a Substantive Appeal are in other proposed sections’’, specifically 2007. We have now decided to name it parts 19 and 20. To avoid this possible ‘‘VA acceptance of signatures by mark ‘‘Abandoned Claims’’, which is derived misconstruction, we propose to remove or thumbprint’’. We agree with the from § 3.158(a). We propose to make this sentence. commenter’s suggestion and propose to several changes to the language derived adopt the proposed language as the from § 3.158(a) to increase clarity. The § 5.131 Applications, Claims, and section title with a slight modification. scope of the current rule is limited to Exchange of Evidence With Social The commenter also suggested ‘‘an original claim, a claim for increase Security Administration—Death revising the content of this section. The or to reopen or for purpose of Benefits commenter questioned whether the determining continued entitlement’’. One commenter noted a typographical regulation, as written, would produce We propose to expand the scope of error in the preamble language of the unintended results, such as a situation § 5.136 to include any claim. This is

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consistent with VA’s interpretation and phrase ‘‘date entitlement arose’’ will be sentence to read, ‘‘For purposes of this use of current § 3.158(a) and makes the clearer to lay persons than the phrase part, ‘date entitlement arose’ means the rule more concise. The scope of current ‘‘facts found’’, and that § 5.150(a)(2) date that the claimant first met the § 3.158(a) is also limited to ‘‘pension, makes clear that the phrase ‘‘date requirements for the benefit as shown compensation, dependency and entitlement arose’’ refers to what the by the evidence.’’ indemnity compensation, or monetary factual evidence shows rather than to Another commenter suggested allowance under the provisions of 38 procedural requirements such as filing keeping the phrase ‘‘facts found’’ U.S.C. chapter 18’’. For the same claims. Also, VA regulations have long because he did not think the phrase was reasons we propose to expand the scope used ‘‘date entitlement arose’’ without ambiguous or unclear. We have of § 5.136 to include all benefits under the confusion the commenter described. reconsidered the replacement of ‘‘facts part 5. We also propose to change the We note that we do not intend any found’’ with ‘‘date entitlement arose’’, word ‘‘filing’’ to ‘‘receipt’’ in keeping substantive changes to the however, we decline to keep the phrase with our practice of using consistent determination of the effective dates for ‘‘facts found’’. As discussed above, the terminology in part 5. benefits based on this substitution of phrase ‘‘date entitlement arose’’ is easier phrases. to interpret and apply as it is more § 5.140 Determining Former Prisoner The same commenter also felt that it instructive as to how VA will make an of War Status would be unnecessary and possibly effective date determination. One commenter noted a typographical confusing to a Veterans Service Furthermore, we do not intend this error in proposed § 5.140(a)(3). We agree Representative to pick the latter of substitution of the phrases as a with the commenter that there should either the ‘‘date of receipt of the claim’’ substantive change in determining not be a hyphen between the terms under paragraph (a)(1) or ‘‘date effective dates for benefits. ‘‘service’’ and ‘‘department’’, and entitlement arose’’ under paragraph One commenter suggested that VA propose to change the language (a)(2). The commenter felt that the date should assume that entitlement to accordingly. of receipt of a claim would presumably benefits arises as of the date of receipt The commenter also pointed out a always be the later date, since veterans of the claim rather than before the typographical error in the preamble usually experience a disability before receipt of the claim. In the commenter’s language concerning this section. The filing a claim of entitlement to view, ‘‘this would prevent a conflict error referred to a mischaracterization of compensation. The commenter asserted with 38 U.S.C. 5110(b)(2)’’. We disagree the term ‘‘regional office decisions’’. We that VA adjudicators sometimes assign with the commenter and do not see a acknowledge the typographical error, ‘‘the later effective dates based on the conflict between the regulation and but propose not to make the suggested reasoning that increased disability was statute. Indeed, if VA assumed that change because the preamble language not factually ascertainable until proven entitlement to benefits arises as of the to the initially proposed rule will not be by a VA examination or medical date of receipt of the claim, rather than published again. opinion.’’ beforehand, that would deprive veterans In reviewing initially proposed We propose not to make any changes of potential entitlement to earlier § 5.140, we determined that it would be based on this comment because while effective dates under § 5110(b)(2). We helpful to readers for all part 5 (a)(2) acknowledges that the date therefore propose to make no changes provisions regarding how VA entitlement arose usually precedes the based on this comment. determines former POW status to be in filing of a claim, this may not always be Changes to § 5.150 Not in Response to one section. Therefore, we propose to the case. For example, a veteran may file Comments remove the definition of former POW a claim but have it properly denied due from § 5.1, ‘‘General definitions’’, and to lack of evidence. However, if the We omitted the provisions of current place it in § 5.140. In combining these veteran later files new evidence that § 3.400(h)(3) from the AM01 NPRM two provisions, we have removed shows that the veteran did not meet all without any explanation in the redundant material that was contained the criteria for a benefit on the date the preamble. For the reasons discussed in initially proposed §§ 5.1 and 5.140. claim was received, but his or her below, we propose to omit them from medical condition changed so that the part 5. § 5.150 General Effective Dates of criteria were satisfied while the appeal Section 3.400(h)(3) states, ‘‘As to Awards or Increased Benefits was still pending, the date entitlement decisions which have become final (by Several commenters questioned the arose will be after the claim was appellate decision or failure to timely use of the phrase ‘‘date entitlement received. Regarding the assertion that initiate and perfect an appeal) and arose’’ in place of the phrase ‘‘facts VA adjudicators sometimes assign later reconsideration is undertaken solely on found’’. In the preamble to the proposed effective dates because an increased Department of Veterans Affairs rule, we explained our decision to use disability was not factually initiative, [the effective date of an award ‘‘date entitlement arose’’ by the need for ascertainable until proven by a VA based on such a reconsideration will be] consistency throughout part 5 as well as examination or medical opinion, we the date of Central Office approval our understanding that the two terms note that VA has authority to accept authorizing a favorable decision or the meant the same thing and are used non-VA medical records or lay date of the favorable Board of interchangeably. One commenter did statements as a basis for setting an Veterans[‘] Appeals decision.’’ The not agree that ‘‘facts found’’ and ‘‘date effective date. current structure of § 3.400(h) first entitlement arose’’ were interchangeable In responding to these comments, we appeared in the CFR in 1969. See 38 terms. Rather, the commenter asserted noted that the first sentence of CFR 3.400(h) (34 FR 8703, June 3, 1969). that ‘‘facts found’’ is an alternative to paragraph (a)(2) could be clarified. In VA maintained the previous distinction ‘‘date entitlement arose’’ because the the NPRM, it read, ‘‘For the purposes of between non-final and final decisions, latter presumably arises as a matter of this part, ‘date entitlement arose’ means and also created distinct provisions law, such as once a claim is actually the date shown by the evidence to be governing final decisions based on the filed, but is only compensable beginning the date that the claimant first met the method used to reconsider or reopen the from a date that is supported by the requirements for the benefit awarded.’’ case. VA Regulations, Compensation factual evidence. We believe that the We now propose to simplify this and Pension, Transmittal Sheet 437 at I,

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132–3R (May 21, 1969). Paragraphs timely filed, and suggested that VA following the effective date of the law or (h)(1) and (2) cover the most common should adopt a similar rule for claims. VA issue. difference of opinion situations and See 38 CFR 20.305 (concerning how the We decline to make any such change distinguish between non-final and final Board will calculate the time limit for because it would be administratively decisions. See id. Paragraph (h)(3) was filing). We decline to adopt the burdensome and an extremely added to apply to those admittedly ‘‘rare commenter’s suggestion because VA is inefficient method of claims processing. instances in which there has been final prohibited by statute from awarding an adjudication and no application for effective date for a claim earlier than the The term ‘‘claim’’ is defined in § 5.1 as consideration or reopening has been date of receipt of the application or ‘‘a formal or informal communication in submitted.’’ Id. claim, unless specifically authorized. writing requesting a determination of For claims that the Board reconsiders According to 38 U.S.C. 5110(a), entitlement, or evidencing a belief in and grants ‘‘on its own initiative’’, there ‘‘[u]nless specifically provided entitlement, to a benefit under this is no distinct effective date rule. VA otherwise in this chapter, the effective part.’’ In other words, a claimant must Central Office reconsiders only non- date of an award based on an original identify the benefit sought. It would be final decisions under its ‘‘difference of claim, a claim reopened after final unreasonable to require that, for opinion’’ authority (see § 5.163), not adjudication, or a claim for increase, of example, the date of receipt of a change- final decisions. Indeed, it has no compensation, dependency and of-address request, which would result statutory or regulatory authority to indemnity compensation, or pension, in a handling of the claims file reconsider final decisions. We are shall be fixed in accordance with the unrelated to a claim for compensation, therefore not restating the (h)(3) Central facts found, but shall not be earlier than serve as the effective date for retroactive Office provision in part 5. the date of receipt of application benefits in a compensation claim. The initially proposed rule therefor.’’ Having a date-of-receipt rule mistakenly omitted the provisions of provides for certainty and consistency The commenter also suggested that § 3.400(o)(1) (second sentence). This in determining when a document we define the phrase ‘‘administrative rule states that ‘‘[a] retroactive increase relating to a claim is received. determination of entitlement’’. The or additional benefit will not be Initially proposed paragraph (b) commenter did not explain how he awarded after basic entitlement has consisted of one 93-word sentence. We believes the phrase is confusing, but the been terminated, such as by severance propose to break the paragraph into ordinary dictionary meaning of those of service connection.’’ We propose to three sentences, which will make the words is clear. We note that a court has correct this omission by adding a paragraph easier to read and previously held that the meaning of this paragraph (b) and redesignating understand. phrase is clear and consistent with its proposed paragraph (b) as paragraph (c). authorizing statute. McCay v. Brown, As stated in the AM01 NPRM, § 5.152 Effective Dates Based on Change of Law or VA Issue 106 F.3d 1577, 1580 (Fed. Cir. 1997). proposed § 5.150(b), now § 5.150(c), is a We therefore propose to make no table of the location of other effective- One commenter suggested that we changes based on this comment. date provisions in part 5, which are reconsider our decision to restate exceptions to the general effective date § 3.114(a) without change. The In initially proposed § 5.152(b) we rule of proposed paragraph (a). As stated commenter believed that § 3.114(a) was used the term ‘‘payment’’. We have in the proposed rulemaking, the table is very difficult to understand and was determined that this term is too narrow for informational purposes. We propose neither claimant-focused nor user- because it excludes benefits that have to add the sentence, ‘‘This table does friendly. In response to this comment, no payment, for example a service- not confer any substantive rights’’, to we propose to revise initially proposed connected disability that was rated clarify that it is a reference tool, and not § 5.152 to state the provisions in the noncompensable. We have, therefore, a substantive rule. active voice, replace unnecessarily used the term ‘‘benefits’’ instead, which Also, as stated in the preamble to the technical language with more is defined in § 5.1 as ‘‘any payment, initially proposed rule, the table showed commonly understood language, and service, commodity, function, or status, both already published and as yet reorganize the provisions into a more entitlement to which is determined unpublished part 5 regulations, which logical order. under this part.’’ were subject to change. In this NPRM, The commenter set forth a detailed In § 5.152(d)(2), we propose to replace we have updated the table to reflect the fact pattern and then correctly updated part 5 citations. We have also explained how the rule applied to those the phrase ‘‘the award will be reduced moved the references to effective dates facts. The commenter then suggested or discontinued effective the last day of of reductions and discontinuances to a that ‘‘any documented handling of a the month in which the 60-day period separate table in § 5.705(b). As a result, veteran’s claims folder following a expired’’ with ‘‘VA will pay a reduced proposed § 5.150(b), now § 5.150(c), liberalizing change in law [should] rate or discontinue the benefit effective contains only effective date provisions constitute a claim for the newly the first day of the month after the end for awards or increased benefits. Having available benefit’’ (emphasis in of the notice period’’. This change in separate tables for each type of effective original). The commenter’s concern was terminology does not affect the payment date will enable readers to more easily with VA’s regulation authorizing made to a beneficiary based on a locate the section they need. retroactive payment of benefits for a reduction or discontinuance. The period of 1 year prior to the date of purpose of this change is to remedy any § 5.151 Date of Receipt receipt of a claim or the date of a VA- confusion that Veterans Service One commenter proposed adopting a initiated review, if the claimant requests Representatives or beneficiaries may mailbox rule instead of the current date- a review or VA initiates a review more have experienced in interpreting the of-receipt rule for purposes of filing than 1 year after the effective date of the former part 3 language, as well as to claims. The commenter pointed out that law or VA issue. The commenter establish uniform language for the Board of Veterans’ Appeals (the believed that such payments should be describing how to calculate effective Board) accepts the postmark date as retroactive to the date of the first dates. evidence of a document having been documented handling of the claims file

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§ 5.153 Effective Date of Awards Based effective date provision for awards or to ‘reopen’ because the claim has not on Receipt of Evidence Prior to End of increased benefits) for calculating an been ‘closed’ (that is, the claimant could Appeal Period or Before a Final Board effective date based on information or still prevail on that claim).’’ 72 FR Decision evidence received during the appeal 28778, May 22, 2007. We therefore One commenter suggested that we period. The intent in referencing this propose to make no change based on define the term ‘‘appeal period’’. The general effective date provision is to use this comment. term ‘‘appeal period’’ does not need a the same effective date for awarding a Finally, we propose to not include definition. The ordinary dictionary benefit as if the final decision being current §§ 3.400(p) and 3.500(u) in part meanings for the words are sufficient to appealed had not been decided. We 5. These paragraphs are merely cross- define the term. The commenter also disagree with the commenter that references to effective-date provisions proposed § 5.153 would lead to a recommended that the term ‘‘appeal (currently in 38 CFR 3.114) are not different result than its part 3 period’’ be defined as any time ‘‘after a necessary in part 5. predecessors, §§ 3.156(b) and timely [Notice of Disagreement] and 3.400(q)(1). However, based on the § 5.160 Binding Effect of VA Decisions timely Substantive Appeal have been comment, we have reviewed the last received’’. We decline to make such a One commenter questioned our sentence of initially proposed § 5.153 change because the suggested definition decision not to repeat the 38 CFR and propose to clarify it by replacing it is incorrect. A timely Notice of 3.104(b) phrase ‘‘made in accordance with the language in the last sentence of Disagreement (NOD) and Substantive with existing instructions’’ in proposed current § 3.400(q)(1), which states, ‘‘The Appeal are the triggers that initiate § 5.160(b). The commenter was effective date will be as though the concerned that our removal of the appellate review by the Board. The former decision had not been rendered.’’ ‘‘appeal period’’, however, begins with language would allow VA employees to This change would still lead to the same disregard their procedural manuals and the date of mailing of notice to a result as the proposed rule because claimant concerning a decision made by other VA guidance documents. As § 5.150 is still the applicable general explained in our preamble discussion of the agency of original jurisdiction. See effective date provision. We therefore 38 CFR 20.302 through 20.306. The the proposed rule, our reason for not propose to replace the reference to including the language in our rewrite ‘‘appeal period’’ ends 1 year after the § 5.150 in our regulation text with a notice date if no NOD is received. Id. was because the ‘‘references to internal cross reference. procedural manuals and other VA- We agree, however, that proposed This same commenter had several generated documents that lack the force § 5.153 needs a cross-reference to 38 concerns about the preamble discussion and effect of law are not appropriate for CFR parts 19 and 20 in order to instruct of proposed § 5.153 which the inclusion in the regulations’’. 72 FR the reader on how to appeal to the commenter believed would cause Board. This proposed change will ‘‘misapplication of the law’’. The 28770, May 22, 2007. The problem we eliminate the need to define ‘‘appeal commenter expressed concern with our addressed by removing the phrase period’’ in part 5, as suggested by the statement that ‘‘if the evidence is ‘‘made in accordance with existing VA commenter. submitted within the appeal period or instructions’’ is that substantive rules in We believe that the heading of this before an appellate decision is rendered, procedural manuals and other VA section may have caused confusion. then the effective date of the award can documents that were not promulgated Therefore, we propose to revise the be as early as the date VA received the in accordance with the Administrative heading of § 5.153 to make clear that the ‘open’ claim.’’ 72 FR 28778, May 22, Procedure Act (APA) are not enforceable regulation refers to both the appeal 2007. The commenter noted that ‘‘an against claimants or beneficiaries. period and the time period after an effective date can be earlier than the Where VA issuances confer a right, appeal has been filed but before a final date VA first received the open claim.’’ privilege, or benefit, or impose a duty or decision has been rendered. The commenter is correct to the extent obligation on VA beneficiaries or other The commenter also suggested that all that the commenter’s statement is members of the public, VA continues to evidence received between the date of consistent with 38 U.S.C. 5110, and we be bound by notice and comment receipt of a claim and expiration of the did not intend any conclusion to the requirements under the APA. See appeal period must be considered as contrary. Fugere v. Derwinski, 1 Vet. App. 103 having been filed in connection with the Similarly, the commenter questioned (1990). Therefore, we propose not to claim which was pending at the VA’s explanation regarding the removal make any changes based on this beginning of the appeal period, and, in of the qualifier ‘‘new and material’’ from comment. claims for increase, evidence received proposed § 5.153, which is based on § 5.161 Review of Benefit Claims during the 1-year period before the date current § 3.156(b). 72 FR 28778, May 22, Decisions of receipt of the claim must also be 2007. Specifically, the commenter considered. Proposed 5.4(b) states that disagreed with our statement that ‘‘if VA We received several comments ‘‘VA will base its decisions on a review were to treat all evidence submitted regarding this proposed regulation. One of the entire record.’’ Therefore VA must after the appeal period has begun as commenter suggested that ‘‘whether a consider the evidence described by the ‘new and material evidence,’ then the hearing is ordered or not, [§ 5.161] commenter. effective date could not be earlier than should be amended to require the One commenter believed that the date VA received that evidence Service Center Manager or Decision proposed § 5.153 would not prescribe (which could be construed as a claim to Review Officer who conducts post- the same effective date for an award reopen).’’ Id. We note that any decision review to be subject to the based on evidence received during an ambiguity in this statement is addressed same duty-to-inform obligation as VA appeal period as would have applied by our other statement in the preamble hearing officers are now required under ‘‘had that evidence been submitted and to the proposed rule that ‘‘[t]he current 38 CFR [3.103(c)(2)]’’. The commenter been of record at the time of the regulation [, § 3.156(b),] can be read to mistakenly cited to 38 CFR 3.301(c)(2), decision under appeal’’. Proposed suggest that new and material evidence but the duties of VA employees who § 5.153 prescribed the effective date is needed while the claim is still ‘open.’ conduct hearings are set forth in used in proposed § 5.150 (the general However, in such cases there is no claim § 3.103(c)(2).

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We agree with the commenter that VA propose to make no changes based on explaining what CUE is. We decline, should assist a claimant or beneficiary this comment. however, to make the proposed change in developing his or her claim whenever In initially proposed § 5.161(b), we in a new subpart because such a change possible and that the duty-to-inform is stated that VA will, ‘‘notify the claimant is beyond the scope of this project. We not limited to situations where a in writing of his or her right to review are also removing the cross reference so claimant requests a hearing. In practice, under this section.’’ Because we have readers will not infer that § 20.1403 VA reviewers already suggest additional defined ‘‘notice’’ in § 5.1 as ‘‘a written applies to CUE claims at the AOJ. sources of evidence during informal communication VA sends a claimant or One commenter urged that VA conferences. Therefore, we propose to beneficiary at his or her latest address include in § 5.162, ‘‘[t]he filing and add a sentence to § 5.161(c) stating that, of record, and to his or her designated pleading requirements that are ‘‘In an informal conference, the reviewer representative and fiduciary, if any’’, we necessary in presenting successful CUE will explain fully the issues and suggest propose to revise paragraph (b) to state claims . . .’’, but offered no rationale for the submission of evidence the claimant that VA will ‘‘send notice to the the suggestion. The same commenter may have overlooked that would tend to claimant . . .’’, to be consistent with urged that VA include provisions stating prove the claim.’’ our definition. the ‘‘relationship of clear and One commenter questioned the § 5.162 Revision of Agency of Original unmistakable error claims to other accuracy of the statement, ‘‘The review Jurisdiction Decisions Based on Clear statutes, regulations and legal will be conducted by a Veterans Service and Unmistakable Error doctrines’’, but offered no rationale for Center Manager or Decision Review the suggestion. Officer, at VA’s discretion.’’ The In reviewing comments received VA has established procedures for commenter believed this statement was regarding initially proposed § 5.162, we filing claims (§§ 5.50 through 5.57). incorrect and referred to a VA determined that this section should be Claims for CUE require the same application which the commenter revised and reorganized to improve procedures. Proposed paragraph (d) believed provided ‘‘a right of election in readability. We propose to add new clearly informs claimants what they these matters’’. We decline to make a paragraphs (a) ‘‘Scope’’; (b) ‘‘Review for must show in order to prove CUE. change based on this comment. clear and unmistakable error (CUE)’’; (c) Regarding the suggestion about the ‘‘Binding decisions and final decisions’’; Proposed § 5.161 pertains to a review relationship of CUE to other statutes, and (d) ‘‘What constitutes CUE’’; and before the agency of original regulations and legal doctrines, this type redesignate initially proposed paragraph jurisdiction, which is usually conducted of analysis is not germane to the (b) as paragraph (e). by a Decision Review Officer (DRO). regulation because it would not inform However, where a DRO is unavailable, We also determined that § 5.162 mistakenly omitted the provision in 38 the public about VA’s duties or VA reserves the right to have a Veterans claimants’ rights or duties. We therefore Service Center Manager (VSCM) CFR 3.400(k), which states, ‘‘Error (§ 3.105). Date from which benefits propose to make no changes based on conduct the review. Proposed § 5.161 is these two comments. based on § 3.2600, which contains this would have been payable if the corrected decision had been made on In the NPRM preamble discussion of language as well. § 5.162, we stated that the intent of the One commenter questioned whether the date of the reversed decision.’’ We have added this provision to § 5.162(f), section is to convey that VA paragraphs (a) and (e) contain adjudicative agency decisions that are contradictory provisions. According to restated for better clarity: ‘‘In such final will be presumed correct unless the commenter, ‘‘If the reviewer may cases, benefits are payable effective on there is a showing of CUE. We also only review a decision that has not yet the date from which benefits would stated: become final, . . . how [can] this same have been payable if the corrected reviewer . . . [also] reverse or revise decision had been made on the date of The requirement of a showing of CUE (even if disadvantageous to the the reversed decision.’’ applies only to a ‘‘final decision,’’ as defined claimant) prior decisions of an agency of We received several comments based by proposed § 5.2 to mean ‘‘a decision on a original jurisdiction (including the on this proposed regulation. One claim for VA benefits with respect to which commenter suggested that we define the VA provided the claimant with written decision being reviewed or any prior notice’’ and the claimant either did not file decision that has become final) . . . on terms ‘‘reversed’’ and ‘‘revised’’. We a timely Notice of Disagreement or the grounds of [clear and unmistakable decline to adopt this suggestion because Substantive Appeal or the Board has issued error]’’ (internal quotations omitted). We we prefer to rely on the common a final decision on the claim. See 71 FR disagree that paragraphs (a) and (e) are dictionary meanings of these terms and 16464, 16473–74 (March 31, 2006). We also contradictory. While it is true that the do not wish to deviate from these proposed to incorporate 38 U.S.C. 5109A(c) scope of review under proposed commonly understood meanings. and (d), which state that a CUE claim may § 5.161(a) is limited to the decision with The same commenter noted that the be instituted by VA or upon request of the which the claimant has expressed cross reference to 38 CFR 20.1403 in claimant and that a CUE claim may be made disagreement in the NOD, prior proposed paragraph (a) is inadequate for at any time after a final decision is made. decisions are always subject to reversal purposes of adjudicating compensation One commenter interpreted proposed or revision for clear and unmistakable and pension claims. The commenter § 5.162 as meaning that only final error (CUE). As proposed § 5.162(d) suggested that VA should create a new decisions can be reviewed for CUE. The explains, CUE is a very specific and rare subpart in part 5 that ‘‘will expressly set commenter noted that the term ‘‘final’’ kind of error reserved for situations out for claimants and their is not contained in the CUE statute, 38 where reasonable minds cannot differ representatives what it takes to file, U.S.C. 5109A, which states, ‘‘A request about the nature of the error. raise, and prevail in a [claim] of clear for revision of a decision of the Specifically, while a reviewer may not and unmistakable error’’. We agree with Secretary based on clear and be looking for such CUE during the the commenter that it will be helpful to unmistakable error may be made at any review, if the reviewer encounters one, include the relevant portions of time after that decision is made.’’ paragraph (e), as well as § 5.162, allow § 20.1403 in part 5. Newly proposed The commenter asked why, if a for reversal or revision of the decision paragraph (d) includes language from claimant has filed a notice of containing that error. We therefore the first paragraph of § 20.1403 by disagreement and has not elected review

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under proposed § 5.161, VA should be correction based on CUE, a decision 1998), ‘‘Although more detailed than unable to correct the decision if it is must be ‘‘final’’ as that term is used in [§ 3.105(a)], the basic substantive found to be clearly and unmistakably § 3.160(d) (which is based on 38 U.S.C. provision in [section 5109A] is the same erroneous. The commenter further asked 7105(c)). Section 3.160(d) states that a as that in the regulation.’’ As the why, if VA discovered a CUE after a ‘‘finally adjudicated claim’’ is a decision commenter noted, Congress did not ‘‘binding’’ decision but before it became on a claim, ‘‘the action having become include any finality requirement in that final under § 3.160(d), the decision final by the expiration of 1 year after the statutory language. should not be subject to immediate date of notice of an award or It has been long-standing VA practice correction. disallowance. . . .’’ We are unaware of to correct CUE in decisions that are The commenter asserted, ‘‘The law any judicial precedent holding that, for ‘‘final and binding’’ under 38 CFR does not limit a claim of CUE to a final purposes of CUE review, a decision 3.105(a), even though they have not VA decision, but rather more accurately becomes final only after the time to ‘‘become final by the expiration of 1 contemplates a ‘binding’ decision as appeal has passed. year after the date of notice [of a defined in proposed § 5.160(a),’’ which When VA amended 38 CFR 3.105(a) decision], or by denial on appellate is based on 38 CFR 3.104(a). The to add the term ‘‘final and binding’’, it review, whichever is the earlier.’’ 38 commenter further asserted that ‘‘[t]his intended the term to have the same CFR 3.160(d). We codified this practice would also be consistent with proposed meaning in that section as it has in in 38 CFR 3.2600(e), which states the § 5.161(e) [based on § 3.2600(e)], which § 3.104(a). Specifically, VA meant that ‘‘reviewer may reverse or revise (even if permits decision review officers to decisions that are binding on all VA disadvantageous to the claimant) prior review a binding, but non-final, field offices at the time VA issues decisions of an agency of original decision that has been timely appealed written notification in accordance with jurisdiction (including the decision and revise that decision on the basis of 38 U.S.C. 5104 are subject to revision for being reviewed or any prior decision CUE.’’ The commenter urged VA to CUE. It did not mean ‘‘final’’ under 38 that has become final due to failure to change initially proposed § 5.162 to CFR 3.160(d) (that the decision was not timely appeal) on the grounds of clear state that CUE can be the basis to correct timely appealed or was affirmed by the and unmistakable error (see § 3.105(a)).’’ a ‘‘binding’’ decision even if the Board. The ‘‘decision being reviewed’’ under decision has not yet become ‘‘final’’. We A review of the regulatory history of § 3.2600(e) is one that has not ‘‘become agree with the commenter and propose § 3.105(a) shows that VA added the final due to failure to timely appeal’’. to revise proposed § 5.162 as discussed ‘‘determinations which are final and Finality under proposed § 5.1 is not a below. binding’’ language in a 1991 prerequisite for correction of a decision The courts have consistently stated rulemaking. 56 FR 65845, Dec. 19, 1991. based on CUE, and we therefore propose that a ‘‘final [AOJ] decision’’ is a Prior to that rulemaking, 38 CFR to write new paragraph (b) to clearly prerequisite for a CUE collateral attack. 3.104(a) used the ‘‘final and binding’’ state that final or non-final decisions Hines v. Principi, 18 Vet. App. 227, 236 language, but § 3.105(a) used the may be corrected under the CUE (2004). Courts have repeatedly found language ‘‘determinations on which an doctrine. We propose to clarify this that because an AOJ decision was final action was predicated. . . .’’ In the point in § 5.162(b) by stating that, ‘‘At it was susceptible to reversal or revision preamble to the proposed rule, VA any time after the AOJ makes a decision, based on CUE. See Knowles v. Shinseki, stated, ‘‘The proposed amendment is the claimant may request, or VA may 571 F.3d 1167, 1168 (Fed. Cir. 2009) intended to clarify that decisions do not initiate, AOJ review of the decision to (where RO decision was presumptively become final until there has been determine if there was CUE in the final because veteran acknowledged written notification of the decisions to decision.’’ notice and did not timely appeal, the claimants. . . .’’ 55 FR 28234, July Current § 3.105(a) states, ‘‘[W]here an veteran properly raised claim of CUE); 10, 1990. Similarly, in the preamble to award is reduced or discontinued Hines, 18 Vet. App. at 235–36 (Court the final rule, VA stated that the because of administrative error or error assumes RO decision became final purpose of the amendment was, ‘‘to in judgment, the provisions of where veteran filed NOD but not establish by regulation the point at § 3.500(b)(2) will apply.’’ While this substantive appeal, and ‘‘[s]uch a final which a decision becomes final and provision tells the reader what effective decision is a prerequisite for a CUE binding on all VA field offices.’’ It went date provision applies in such cases, it collateral attack’’). on to state, ‘‘That point is reached when is unclear that the standard governing Concomitantly, courts have VA issues written notification on any the decision is clear and unmistakable repeatedly found claims of CUE in AOJ issues for which it is required that VA error. The intended meaning of this decisions improper when that decision provide notice to the claimant. . . .’’ 56 sentence is seen in the regulatory was not final, and that CUE may not be FR 65845, Dec. 19, 1991. history. When VA implemented the used to correct non-final decisions. In In Smith v. Brown, 35 F.3d 1516 (Fed. effective date rule for 38 U.S.C. Norris v. West, 12 Vet. App. 413, 422 Cir. 1994), the issue before the court was 5112(b)(10), it explained that, (1999), the court held, ‘‘as a matter of whether an AOJ could reverse or revise ‘‘Payments will be terminated under law that a [total disability rating based a Board decision for CUE. In that this subparagraph on the basis of clear on individual unemployability] claim context, the court analyzed the term and unmistakable error. (See VA was reasonably raised to the RO and ‘‘final and binding’’ as used in both in Regulation 1105(A).)’’ VA Regulations, was not adjudicated. Thus, there is no §§ 3.104(a) and 3.105(a) and found that Compensation and Pension, Transmittal final RO decision on this claim that can the terms were intended to mean the Sheet 271 at iv (Dec. 1, 1962). Although be subject to a CUE attack.’’ See Best v. same thing. Id. at 1523–25. the quoted language referred only to Brown, 10 Vet. App. 322, 325 (1997) (RO Congress codified 38 CFR 3.105(a) as ‘‘terminated’’ benefits, it cited VA decision not final where RO failed to 38 U.S.C. 5109A when it enacted Public Regulation 1105(A), which at that time notify veteran, therefore veteran cannot Law 105–111, sec. 1(a)(1), 111 Stat. 2271 included both reductions and raise CUE with respect to that rating (1997). Disabled American Veterans v. discontinuances of VA benefits. VA decision). Gober, 234 F.3d 682, 686 (Fed. Cir. Regulations, Compensation and The courts have not, however, ruled 2000). As the court noted in Donovan v. Pension, Transmittal Sheet 267 at 37–2R on whether, in order to be subject to West, 158 F.3d 1377, 1383 (Fed. Cir. (Dec. 1, 1962). In order to clarify this

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point in part 5, we propose to state commission or omission. We have easy for VA adjudicators to apply. It is explicitly in § 5.162(e) that when VA revised the headings of §§ 5.167 and also a high enough standard to protect reduces or discontinues a benefit 5.177 similarly. beneficiaries from arbitrary or resulting from a VA administrative error In initially proposed § 5.162(b), we capricious reductions or or error in judgment, it applies the clear stated, ‘‘[F]or reductions or discontinuances by VA. We also note and unmistakable error standard. discontinuances based on CUE resulting that before reducing or discontinuing In the AM01 NPRM, we initially from an act of commission or omission benefits under § 5.164, VA must provide proposed to add a new definitions by the beneficiary or with the due process to the beneficiary under section that would define beneficiary’s knowledge, VA will apply § 5.83(a). ‘‘administrative error’’ and ‘‘error in § 5.165(b).’’ In doing so, we mistakenly judgment,’’ in § 5.165(c)(2). We have overlooked that the first sentence of 38 It will be helpful to inform the public determined that, because proposed CFR 3.105 states, ‘‘The provisions of that VA applies the preponderance § 5.165 (now renumbered as § 5.166) is this section apply except where an standard in a reduction or an effective date regulation and this award was based on an act of discontinuance of a benefit obtained provision is substantive, it is more commission or omission by the payee, through an act of commission or logical to place it in new § 5.162(e). or with his or her knowledge. . . .’’ omission. We therefore propose to add Initially proposed § 5.165(c)(2) Since § 3.105 includes the provisions on a new § 5.164, which states, ‘‘VA will included a list of examples of CUE, CUE is not the proper standard for reduce or discontinue a benefit, or sever administrative errors or errors in a reduction or discontinuance of a service connection, if a preponderance judgment. That list included, ‘‘(iii) benefit, or for severance of service of the evidence shows that it resulted in Failure to follow or properly apply VA connection, obtained through an act of whole or in part, from an award based instructions, regulation, or statutes.’’ We commission or omission. on an act of commission or omission by have determined that the term We have revised the proposed the beneficiary or an act of commission ‘‘instructions’’ is unnecessary. regulation to include severance of or omission done with the beneficiary’s Historically, VA used the term service connection among the adverse knowledge.’’ actions VA will take upon finding an act ‘‘instruction’’ to describe the Although section 5112(b)(9) does not of commission or omission by a Administrator’s binding guidelines for specify, VA has long interpreted it to preponderance of the evidence, rather implementing newly enacted laws. VA mean that it applies when an award was than by clear and unmistakable has not issued such ‘‘instructions of the based in whole or in part on the act of Administrator’’ since the 1960s. Because evidence. This would be consistent with commission or omission. VA General VA has not issued such instructions the holding in Roberts v. Shinseki, 23 Counsel’s opinion VAOPGCPREC 2–90, since the 1960s, it is not useful to Vet. App. 416 (2010), where the court 55 FR 27756 (July 7, 1990). We propose include references to them in a list of concluded ‘‘that the provisions of to include the phrase ‘‘in whole or in examples of common sources of § 3.105 [(d)] do not apply to cases part’’ in paragraph (a) to make this administrative error or error in involving severance of service judgment. connection based on fraud.’’ Id., at 428. point. Finally, in paragraph (f), ‘‘Effect of Neither the statutes nor the As stated in § 5.162(b), in a CUE reversal or revision on benefits’’, we regulations provide a standard for claim, VA’s review will be based ‘‘only propose to add a cross reference to reduction or discontinuance of a benefit on the evidence of record and the law § 5.167(c), the effective date rule for obtained through an act of commission in effect when the AOJ made the reduction or discontinuance of benefits or omission. In such cases, VA applies decision.’’ However, no such restriction based on VA administrative error or its default standard of proof, which is applies when VA reduces or error in judgment. This will alert the preponderance of the evidence. When discontinues a benefit, or severs service reader that the effective date of such VA implemented 38 U.S.C. 5112(b)(9) in connection, for reasons other than CUE. reductions or discontinuances differs VA Regulation 1500(b)(1) (currently 38 To ensure that readers are aware of this, from the general rule that the revision CFR 3.500(b)(1)), it explained that in we propose to insert the following of a decision containing CUE is effective determining whether benefits were sentence into § 5.164(a), ‘‘The review as if the original decision were correctly based on an act of commission or will be based on the law in effect when made. omission ‘‘[t]he benefit of any doubt the agency of original jurisdiction (AOJ) will be resolved in favor of the payee.’’ made the decision and on all evidence § 5.163 Revision of Decisions Based on VA Regulations, Compensation and Difference of Opinion currently of record, regardless of Pension, Transmittal Sheet 271 at iii whether it was of record at that time.’’ Initially proposed § 5.163 was one 89- (Dec. 1, 1962). Thus, when the evidence word sentence. To improve readability is in equipoise, VA cannot reduce or In proposed § 5.164(b), we provide we propose to divide it into three discontinue benefits. But when the readers with examples of an act of sentences. We also propose to specify evidence against the beneficiary commission or omission by the that the revised decision must be more outweighs the evidence supporting the beneficiary or an act of commission or favorable to the claimant. beneficiary, the benefit of the doubt omission done with the beneficiary’s doctrine does not apply (Gilbert v. knowledge. We selected all but the § 5.164 Standard of Proof for Reducing Derwinski, 1 Vet. App. 49, 55–56 fourth of these examples because they or Discontinuing a Benefit Payment or (1991)), and VA will reduce or are some of the most common situations for Severing Service Connection Based discontinue. in which VA reduces or discontinues on a Beneficiary’s Act of Commission or Proposed § 5.3(b)(4) states that, ‘‘A benefits. We included the fourth Omission fact or issue is established by a example, service connection obtained We have revised the proposed section ‘preponderance of evidence’ when the by fraud, because severance of service heading of § 5.164 to apply to the weight of the evidence in support of that connection greatly affects a veteran’s several types of adverse actions VA can fact or issue is greater than the weight benefits. Paragraph (b) is not an take upon determining a beneficiary of the evidence against it.’’ The exclusive list of acts of commission or obtained a benefit by an act of preponderance standard is relatively omission.

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§ 5.167 Effective Dates for Reducing or now included in § 5.162(e), in order to character of discharge. Since disability Discontinuing a Benefit Payment, or for avoid that mistaken impression. level and service-connected status are Severing Service Connection, Based on different concepts, it is appropriate to § 5.170 Calculation of 5-year, 10-year, Omission or Commission, or Based on use different terms when discussing and 20-year Periods to Qualify for their protection criteria. Administrative Error or Error in Protection. Judgment Initially proposed § 5.170(b) stated, In the preamble to initially proposed ‘‘A protection period begins on the In initially proposed § 5.165 (now § 5.170, we failed to state that paragraph renumbered § 5.167) we inadvertently effective date of the rating decision and (a) is a new scope provision informing ends on the date that service connection omitted severance of service connection the reader of the rules gathered in in the list of actions for which initially would be severed or the rating would be § 5.170 (§§ 3.344, 3.951, and 3.957). reduced, after due process has been proposed § 5.165 provided effective One commenter suggested that dates. The regulation was incomplete provided.’’ We believe the term proposed § 5.170(a) was unclear because ‘‘protection period’’ could be without it, because VA will sever a rating has to be ‘‘in effect’’ for 10 years service connection if a claimant misinterpreted to mean that a rating is before service connection is protected, protected during this period. It is merely obtained it by an act of commission or but a rating has to be ‘‘continuous’’ for omission, or if VA granted service a qualifying period that triggers the 5 years for a disability to be considered protections in §§ 5.171, 5.172, and connection because of its administrative stabilized and ‘‘continuous’’ for 20 years error or error in judgment. We therefore 5.175. We have revised this paragraph to for the disability level to be protected. clarify that point and reorganized the propose to add this severance provision. The commenter suggested that we use We propose to add a new § 5.164 and language to improve readability. either ‘‘in effect’’ or ‘‘continuous’’, or The same commenter suggested that renumber initially proposed § 5.166 as explain why we use different terms. the language in initially proposed § 5.165, and therefore we have For the following reasons, we decline § 5.170(c) was unclear because it did not renumbered initially proposed § 5.164 to make a change based on this explain whether the continuity of a as § 5.166 and initially proposed § 5.165 comment. We use different terms rating resumes after a veteran is as § 5.167. One commenter suggested because different rights are being discharged from active military service. that initially proposed § 5.165(c) protected. As noted in the preamble to Currently, proposed § 5.170(c) provides effectively would permit VA to ‘‘take the initially proposed rule, a precedent that ‘‘a rating is not continuous if adverse action against claimants on opinion, VA General Counsel’s opinion benefits based on that rating are much lower showings of VA error than VAOPGCPREC 5–95, 60 FR 19808 (Apr. discontinued or interrupted because the the law governing CUE permits’’. We 20, 1995), held that a disability could be veteran reentered active service.’’ As disagree with this comment. This considered ‘‘continuously rated’’ at or noted above, in the preamble discussion paragraph merely implements the above a specified level for purposes of for the proposed rule, we cited to statutory provision in 38 U.S.C. 38 U.S.C. 110 only if there was no VAOGCPREC 5–95, which held: 5112(b)(10). It does not address the interruption or discontinuance of the standard applicable to VA decisions to compensation being paid based on that Where compensation is discontinued reduce or discontinue benefits. rating for a period of 20 years or more. following reentry into active service in The commenter apparently believed accordance with the statutory prohibition on The statute provides this protection payment of compensation for a period in that CUE and VA administrative error because veterans become dependent on which an individual receives active-service are similar in that both can result in a a certain level of compensation when it pay, the continuity of the rating is decision to reduce or discontinue an has been paid without interruption for interrupted for purposes of the rating- award, with VA administrative error such a long period of time. protection provisions of 38 U.S.C. 110 and having to meet a lower standard than Similarly, when a disability has been the disability cannot be considered to have CUE. That is not correct. Proposed continuously rated at the same level for been continuously rated during the period in § 5.165 is an effective date provision 5 years or more, VA considers it to be which compensation is discontinued. which sets different dates for reduction stabilized. This provides some measure Moreover, VA generally does not have or discontinuance of benefits depending of protection in that the veteran is less the ability to examine veterans once on whether the beneficiary or VA made likely to experience a reduction in they have returned to active duty, nor an error. When CUE or severance of compensation in the future or be does it have a reason to do so, so VA service connection and is based on a subjected to repetitive examinations that generally cannot determine whether beneficiary’s act of commission or yield the same result time after time. In their condition has improved during omission, VA corrects the award both cases, when the term ‘‘continuous’’ that time. Such veterans can still satisfy retroactively. When CUE results in a is used, the protection provided the protection criteria of 38 U.S.C. 110, reduction or discontinuance of an award concerns the level of compensation. but the qualifying period for protection or severance of service connection and On the other hand, the term ‘‘in must begin anew upon resumption of is based solely on VA error, VA corrects effect’’ is used only in connection with compensation. We therefore propose not the award prospectively. VA is not the 10-year protection afforded by 38 to adopt the change suggested by the lowering the standard for finding error U.S.C. 1159 for service-connected commenter. that result in the reduction or status. There is no discussion of Another commenter questioned discontinuance of benefits and these interrupted compensation payments whether receipt of active duty for part 5 rules would not cause such an breaking the continuity of a rating. Once training (ACDUTRA) pay breaks the effect. We therefore propose to make no service connection has been granted for continuity of payment for purposes of changes based on this comment. a disability, that status is unaffected by protection. The former part 3 cross Lastly, initially proposed § 5.165(c)(2) variations in the level of compensation. reference (§ 3.654) that followed provided a list of administrative errors If that status remains ‘‘in effect’’ for 10 § 5.170(c), which has since been or errors in judgment. VA does not years, service connection cannot be updated with its part 5 counterpart intend this list to be exclusive, so we severed in the absence of fraud or § 5.746, clarifies that ‘‘active military propose to add the phrase ‘‘but are not military records showing the person did service pay means pay received for limited to’’ to this provision, which is not have the requisite service or active duty, active duty for training or

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inactive duty training’’. Therefore, One commenter asked us to clarify proposed § 5.102, ‘‘Reexamination receipt of ACDUTRA pay is considered that improvement in a veteran’s requirements’’. Based on this comment, to be receipt of active military service disability condition must be we propose to add a cross reference to pay, which operates to break continuity demonstrated before VA can reduce a § 5.102 at the end of § 5.171. of payment for purposes of breaking stabilized disability rating. The One commenter questioned whether continuity of a rating. We therefore commenter suggested that before VA proposed paragraph (d) would create propose not to make any changes to can reduce a disability rating, not only tension with the standard governing § 5.170 based on this comment. must it be determined that an reduction of total disability ratings improvement to a disability has actually under § 3.343. Section 3.343 pertains to § 5.171 Protection of 5-Year Stabilized occurred, but also that the improvement the rule governing continuance of total Ratings reflects an improvement in the veteran’s disability ratings and outlines a list of One commenter observed that the ability to function under ordinary mandatory considerations that VA must NPRM misquoted sentence 5 of conditions of life. take into account before reducing such § 3.344(a) as follows: ‘‘. . . sentence 5, In response to this comment, we note total disability ratings. The commenter which states, ‘lists those diseases that that initially proposed § 5.171(c) stated, expressed concern over whether will not be reduced . . . ’ ’’ (emphasis in pertinent part, that VA will not adoption of § 5.171(d) would in effect in comment) 72 FR 28782, May 22, reduce a stabilized rating unless there is ‘‘allow adjudicators to bypass the 2007. The commenter is correct, the evidence of material improvement and established protections of § 3.343 in quoted language actually paraphrased VA may reduce a stabilized rating when favor of reducing a total evaluation by sentence 5 of § 3.344(a). We rewrote an examination shows sustainable . . . more lenient conditions’’. Proposed sentence 5 of § 3.344(a) as proposed material improvement, physical or § 5.171(d) would not have such an paragraph (d)(2), reorganized for clarity. mental, in the disability, and the effect. It is a rewrite of § 3.344(a), which The comment, though accurate, does not evidence shows that it is reasonably simply provides guidance on factors require any change from the proposed certain that the material improvement that VA will consider before reducing regulation. will be maintained under the ordinary disability ratings that have either This commenter asserted that § 3.344 conditions of life. become stable or otherwise were made As a practical matter, it is doubtful is a very difficult regulation full of on account of diseases that are subject that there would be a case in which the outdated, superfluous verbiage, much of to temporary or episodic improvement. evidence shows that it is reasonably The part 5 counterpart to § 3.343 is which we could discard. The certain that the material improvement § 5.286, which will govern the commenter however, gave one example, will be maintained under the ordinary continuance of total disability ratings. specifically the eighth sentence of conditions of life unless there had We therefore propose to make no § 3.344(a) (initially proposed as already been material improvement changes based on this comment. § 5.171(d)(6)), which the commenter under the ordinary conditions of life. One commenter suggested that the asserted was meaningless. That sentence Therefore, we propose to add ‘‘under organization of paragraph (d)(1) could stated, ‘‘When syphilis of the central the ordinary conditions of life’’ to be improved by separating the topic of nervous system or alcoholic proposed paragraph (c)(1), to read, ‘‘An ‘‘how VA will determine whether there deterioration is diagnosed following a examination shows material has been material improvement’’ from long prior history of psychosis, improvement in the disability, under ‘‘what types of evidence a complete psychoneurosis, epilepsy, or the like, it the ordinary conditions of life . . .’’ medical record consists of’’. The is rarely possible to exclude persistence, In addition, we propose to remove the commenter recommended reorganizing in masked form, of the preceding word ‘‘sustainable’’ because it refers to the last sentence of paragraph (d)(1) and innocently acquired manifestations.’’ the veteran’s future condition, which is its paragraphs into a new paragraph We disagree that this provision is covered by paragraph (c)(2). We propose (d)(5) after our discussion concerning meaningless, but we conclude it is not to change the word ‘‘when’’ to ‘‘if’’ in what constitutes material improvement. useful because it does not provide any the second sentence of paragraph (c) We agree with this suggestion and instruction, impose any duty, or convey because ‘‘when’’ incorrectly implies that propose to add a new paragraph (d)(5) any right. The sentence essentially the veteran’s condition will eventually consisting of the last sentence of informs VA employees who perform improve. Lastly, we propose to remove paragraph (d)(1) and its paragraphs. We disability ratings that syphilis and the phrase, ‘‘physical or mental’’. It is propose to redesignate initially alcoholic deterioration diagnosed after a unnecessary because all disabilities are proposed paragraph (d)(5) as (d)(6). long prior history of ‘‘psychosis, either physical or mental. One commenter suggested that we psychoneurosis, epilepsy, or the like,’’ One commenter suggested that replace the term ‘‘medical record’’ with can mask the persistent prior disease, paragraph (d) is vague and ambiguous ‘‘evidentiary record’’ in regard to and therefore the focus of the rating because it does not explain when initially proposed paragraph (d)(4), decision should be the ‘‘preceding medical examinations for purposes of which pertains to when VA will innocently acquired manifestations.’’ determining material improvement determine material improvement exists Initially proposed paragraph (d)(6) does would be administered. The commenter for purposes of decreasing disability not actually instruct VA to take any also thought that the paragraph failed to ratings. The commenter was concerned specific action. It does not impose any explain whether ‘‘VA will follow any that the term ‘‘medical record’’ may specific duty different than does standards or rules when it chooses unduly restrict VA’s current practice of paragraph (d)(2) for diseases subject to certain veterans for a new examination, considering all evidence in the record, episodic improvement, and it does not or if VA will use subjective criteria in including lay evidence. We agree with convey any rights in addition to those its selection’’. the commenter and propose to adopt the stated in paragraph (d)(2). Initially proposed § 5.171 does not suggested change. Consequently, we agree that it is include the standards VA applies when In reviewing initially proposed confusing surplus and propose not to determining whether and when to § 5.171(e) based on this comment, we repeat the eighth sentence of § 3.344(a) reexamine a veteran because these noted that in the preamble of the in part 5. standards are described in detail in proposed rulemaking, 72 FR 28770, May

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22, 2007, we failed to explain that we One commenter suggested that we The phrase ‘‘clearly and unmistakably had omitted from paragraph (e) the separate this section into two erroneous’’ is not intended to following, contained in current regulations, one to address the incorporate the procedural rule § 3.344(b): ‘‘the rating agency will protection of service connection and the applicable to claims under § 3.105(a) determine on the basis of the facts in other to address the severance of service that collateral review of a prior final each individual case whether 18, 24, or connection. We decline to make this decision must be based solely on the 30 months will be allowed to elapse change because the paragraphs are evidence that was before VA at the time before the reexamination will be made.’’ appropriately titled regarding when of that decision. The provisions of We omitted this language because VA protection of service connection applies § 3.105(a) and § 3.105(d) involve schedules reexaminations for various versus when severance of service different procedural standards because future dates (based on the factors connection applies. Further, when taken § 3.105(a) concerns collateral review described in § 5.102) and these dates are as a whole, the entire section addresses and retroactive correction of a final not limited to 18, 24, or 30 months in the single issue of whether and when decision. In contrast, § 3.105(d) involves the future. VA may sever service connection. only review of the veteran’s entitlement We also determined that the scope of The commenter further asserted that to benefits prospectively. VA recognizes paragraph (e) (which is based on current VA should not adopt the proposed that the use of the same high standard, § 3.344(b)) needed clarification. We regulation § 5.175(b)(2) because ‘‘the clear and unmistakable error, might be therefore propose to revise paragraph (e) law of clear and unmistakable error bars confusing to some laypersons. For that to clarify that it only applies to cases a veteran from submitting, and the VA reason, VA has consistently made clear involving a change in diagnosis. from considering, any new medical in its regulations that severance opinion evidence (or any new evidence § 5.173 Protection Against Reduction determinations under § 3.105(d) may be for that matter), in order to establish the of Disability Rating When VA Revises based on consideration of evidence existence of CUE’’. The commenter also the Schedule for Rating Disabilities obtained subsequent to a prior stated that because the law that governs determination. Initially proposed § 5.173(b) described CUE ‘‘does not permit the veteran to how VA modifies a rating that was Furthermore, we note that the successfully argue that a change in provision in proposed § 5.175(b)(2) is assigned under the 1925 Schedule for diagnosis can be accepted as a basis for Rating Disabilities. There are no longer not new; it is based on a substantially the award of service connection ‘based similar provision in current 38 CFR any veterans being compensated under on clear and unmistakable error . . .’, the 1925 Schedule. We therefore 3.105(d). The courts have held that, as VA cannot be permitted to sever an a general principle, when an allegation propose to remove the last phrase in award of service connection based on paragraph (a) and all of paragraph (b) is made that a VA decision contains the same sort of medical evidence.’’ The CUE, VA’s decision on the allegation is because these concerned revisions to commenter asserted that this proposed strictly limited to the evidence that was ratings under the 1925 Schedule. provision ‘‘reflects inconsistent and before the VA at the time VA made the arbitrary agency action’’. The § 5.175 Severance of Service decision being challenged as containing commenter asserted that the courts have Connection CUE. The U.S. Court of Appeals for clearly held that ‘‘when an allegation is Veterans Claims set forth this principle Initially proposed § 5.175(a)(1) and (2) made that a VA decision contains CUE, in the Russell case (id. at 314). provided that the protection from that VA’s decision on the allegation is severance of 10 year old service strictly limited to the evidence that was However, Russell involved a CUE connection applies to grants of before the VA adjudicator at the time claim under 38 CFR 3.105(a), not disability compensation and to VA made the decision being challenged severance of service connection under dependency and indemnity as containing CUE.’’ The commenter § 3.105(d). Section 3.105(d) states, in compensation (DIC), respectively. As cited Russell v. Principi, 3 Vet. App. 310 pertinent part that ‘‘[s]ubject to the initially proposed, § 5.175 did not (1992), for the proposition that new limitations contained in §§ 3.114 and address whether this protection applies medical evidence that corrects an earlier 3.957, service connection will be to benefits under 38 U.S.C. 1151. diagnosis that was a basis for an earlier severed only where evidence establishes In August 2010, the U.S. Court of decision by the agency of original that it is clearly and unmistakably Appeals for Veterans Claims in Hornick jurisdiction cannot be considered in a erroneous (the burden of proof being v. Shinseki, 24 Vet. App. 50, 56 (2010), CUE case. upon the Government).... A change held that the preclusion in 38 U.S.C. The commenter also noted that the in diagnosis may be accepted as a basis 1159 against severing service Board of Veterans’ Appeals (Board) for severance action if the examining connection in effect for 10 years or more regulation contained in 38 CFR physician or physicians or other proper pertains to disability compensation 20.1403(d) states, ‘‘(d) Examples of medical authority certifies that, in the payments awarded under 38 U.S.C. situations that are not clear and light of all accumulated evidence, the 1151 (Benefits for persons disabled by unmistakable error—(1) Changed diagnosis on which service connection treatment or vocational rehabilitation). diagnosis. A new medical diagnosis that was predicated is clearly erroneous. We propose to add the following at the ‘corrects’ an earlier diagnosis This certification must be accompanied end of initially proposed paragraph considered in a Board decision.’’ by a summary of the facts, findings, and (a)(2): ‘‘and to disability compensation For the following reasons, we propose reasons supporting the or DIC granted under 38 U.S.C. 1151’’ to to make no change based on this conclusion. . . .’’ afford this protection to these benefits. comment. The commenter fails to Thus, § 3.105(d) does not state that Adding ‘‘disability compensation . . . recognize the distinction between decisions will be reversed because they under 38 U.S.C. 1151’’ implements the § 3.105(a) and § 3.105(d). As used in were based on CUE. These are dealt holding in Hornick. We are also adding § 3.105(d) and proposed § 5.175(b), the with in § 3.105(a). Rather, § 3.105(d) ‘‘or DIC granted under 38 U.S.C. 1151’’, phrase ‘‘clearly and unmistakably states that a veteran’s service-connected to be consistent with sections 1151 and erroneous’’ is intended to describe the status will be severed if it is clearly and 1159, which both apply to DIC. This high standard of proof that must be met unmistakably erroneous. Since it is a addition is also consistent with Hornick. before VA can sever service connection. review of the veteran’s current status,

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VA naturally must consider current For the reasons stated above, we severed unless . . . (1) The original grant evidence. propose to make no changes based on was obtained through fraud.’’ We The courts have consistently upheld this comment. further explained that proposed the long-standing provision in 38 CFR We propose, however, to revise the paragraph (b) ‘‘provided that severance heading of initially proposed paragraph 3.105(d) that evidence concerning a of service connection may also occur (b) to read, ‘‘Standard of proof to sever change in diagnosis (which was not of when evidence establishes that it is service connection—general rule’’, and record when service connection was clearly and unmistakably to add paragraph (c), ‘‘Standard of proof erroneous. . . .’’ 72 FR 28783, May 22, granted) may be considered in to sever service connection—fraud’’. 2007. By stating ‘‘also’’, we intended to determining whether service connection The new paragraph (c) comprises a cross state that § 5.175(a) and (b) would be is clearly and unmistakably erroneous. reference to proposed § 5.164. It serves, alternatives for severing service See Stallworth v. Nicholson, 20 Vet. without repeating proposed § 5.164, to connection. We did not mean that they App. 482, 488 (2006); Daniels v. Gober, inform the reader that VA’s burden of would be a sequence of events: first, 10 Vet. App. 474, 480 (1997); Venturella proof to sever service connection piercing the 10-year protection by v. Gober, 10 Vet. App. 340, 343 (1997). obtained by fraud is the same as to sever showing fraud, and second, finding As the court has noted, if VA were not service connection obtained by any clear and unmistakable error in the permitted to consider post-decisional other act of commission or omission. grant of service connection obtained by evidence in a severance case, VA Fraud is distinguishable from other acts fraud. We propose to correct the error in ‘‘would be placed in the impossible of commission or omission in that a initially proposed § 5.175 by explicitly situation of being forever bound to a claimant’s fraud will breach the distinguishing the procedures and the prior determination regardless of protection established after service burden of proof that apply to sever changes in the law or later connection has been in effect for 10 service connection that a claimant developments in the factual record.’’ years, whereas other acts of commission obtained by fraud. Venturella, 10 Vet. App. at 343. or omission will not. These changes would correct a § 5.176 Due Process Procedures for The commenter’s reliance on 38 CFR Reducing or Discontinuing Disability 20.1403(d) is inapposite to the question misstatement in the proposed rule that the dissenting opinion in Roberts v. Compensation Payments or for Severing of the validity of § 3.105(d). Section Service Connection 20.1403 implements 38 U.S.C. 7111 Shinseki, 23 Vet. App. 416, 435–39 which relates to the review of Board (2010) (Hagel, J., dissenting) called to One commenter suggested that we decisions based on clear and our attention. In that case, the dissent revise the introductory paragraph to unmistakable error. In the proposed first noted that, in rewriting §§ 3.957 enlarge the scope of § 5.176 to include rulemaking for § 20.1403, 63 FR 27535, (protection of service connection in situations where VA reduces or May 19, 1998, VA noted that, ‘‘the term place 10 years or longer) and 3.105(d), discontinues a disability rating but ‘clear and unmistakable error’ originated ‘‘VA intends to ‘clarify’ and recodify 38 compensation benefits are not affected. in veterans regulations some 70 years CFR 3.957 and the provisions of 38 CFR Currently, proposed § 5.176 and its part ago, see generally Smith (William) v. 3.105(d) that govern when service 3 predecessor, § 3.105(e), require that Brown, 35 F.3d 1516, 1524–25 (Fed. Cir. connection may be severed at 38 CFR VA provide notice of a contemplated 1994), and is now incorporated in VA 5.175, entitled ‘Protection or severance adverse action followed by a 60-day regulations governing VA RO of service connection.’’’ Id. at 436. The period for the presentation of additional determinations. 38 CFR 3.105(a).’’ VA dissent also noted that our proposed evidence only in situations where a lower rating would result in a reduction also noted (at 63 FR 27536, May 19, regulations did not except severance of or discontinuance of compensation 1998) that the legislative history for service connection based on fraud from payments currently being made. section 7111 ‘‘indicates that the the due process or burden of proof elements of §§ 3.957 or 3.105(d). Id. at However, where compensation benefits Congress expected the Department 436, 440. Finally, the dissent noted that are not affected, where there is no would implement section 1(b) of the bill the NPRM stated that it explained any adverse action, VA will provide only in accordance with current definitions substantive changes between part 3 and contemporaneous notice. See § 5.83(a). of CUE. H.R. Rep. No. 52, 105th Cong., part 5, 72 FR 28771–72, May 22, 2007, We decline to make the suggested 1st Sess. 3 (1997) (report of House and that there was nothing in the NPRM change to enlarge the scope of initially Committee on Veterans’ Affairs on H.R. ‘‘indicating that the rewriting and proposed § 5.176 because in cases where 1090) (‘‘Given the Court’s clear guidance restructuring of the regulations VA decreases the rating of any disability on this issue [of CUE], it would seem [pertaining to severance of service or disabilities but does not reduce the that the Board could adopt procedural connection for fraud] are intended as veteran’s overall disability rating, there rules consistent with this guidance to substantive changes.’’ Id. at 437–39. is no reduction of monetary benefits. In make consideration of appeals raising From these observations, the dissent such cases, VA has no statutory duty to clear and unmistakable error less reasoned, the NPRM revealed VA’s send advanced notice of its decision. burdensome’’); 143 Cong. Rec. 1567, interpretation of §§ 3.957 and 3.105(d) Stelzel v. Mansfield, 508 F.3d 1345 1568 (daily ed. Apr. 16, 1997) (remarks as requiring application of both the (Fed. Cir. 2007). Further, due process of Rep. Evans, sponsor of H.R. 1090, in process and burden of proof provisions concerns are not implicated because the connection with House passage) (‘‘The of § 3.105(d) before severing service veteran suffers no loss of benefits. bill does not alter the standard for connection. Moreover, we note that along with the evaluation of claims of clear and Any disparity between the NPRM and contemporaneous notice, VA also unmistakable error.’’)’’ the Secretary’s position in the Roberts provides the veteran with information Thus, § 20.1403 was intended to litigation results from our misstatements on procedural and appellate rights codify a statute whose basis was in the NPRM. In discussing initially regarding the decision. § 3.105(a), not § 3.105(d). As such, there proposed § 5.175 in the NPRM, we Another commenter believed that the is no reason why § 3.105(d) or § 5.175 described that paragraph (a) would initially proposed rule would eliminate must contain the same procedures as provide that service connection in effect the due process procedure of having an those in § 20.1403. for 10 years or more ‘‘may not be impartial VA employee participate in

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the review process for reducing ratings. intact.’’ If such notices were to attempt should not be taken, VA will provide The commenter noted that such to specify the exact type of evidence notice to the beneficiary that VA is procedures are already followed in the that is relevant, they might taking the action.’’ We propose to omit context of predetermination hearings, inadvertently omit relevant evidence the phrase ‘‘Prepare a rating proposing see § 3.105(i), and since the reduction of that the beneficiary might file. Rather, it the adverse action and’’ because this is ratings also have an adversarial is more helpful to clearly explain ‘‘the a administrative action that provides no character, the practice ‘‘should be contemplated action and furnish due process to the beneficiary which is carried over to the new regulations’’. detailed reasons for the proposed not already provided by the notice of While we agree that proceedings reduction or discontinuance’’ (as stated the proposed adverse action. involving proposed adverse actions in initially proposed § 5.176(b)) and § 5.177 Effective Dates for Reducing or should be conducted by VA personnel allow the beneficiary to determine what Discontinuing a Benefit Payment or for who were not directly involved in evidence they can obtain or identify for Severing Service Connection proposing the adverse action, we VA to obtain. decline to make changes based on this The commenter also suggested that We redesignated initially proposed comment. The reason is that this due the 60-day time period for a beneficiary § 5.177(c) as § 5.177(i) to move the process procedure is already recognized to present evidence when disputing a paragraph explaining the exceptions of in proposed § 5.82(d) which states that proposed severance of service the regulation to the end of the section. if the hearing arises in the context of a connection or reduction in ratings is too We accordingly redesignated initially proposed reduction, discontinuance, short. The commenter claimed that ‘‘if proposed § 5.177(d) through (i) as other adverse action or an appeal, a VA VA expects veterans to file medical or § 5.177(c) through (h), respectively. employee or employees having scientific evidence to support their In relation to the comment on initially decision-making authority and who did claims, the 60-day period will be too proposed § 5.176 regarding enlarging the not previously participate in the case short and veterans will be effectively scope of situations where VA will will conduct the hearing. deprived of their procedural due provide advance notice of adverse Proposed § 5.82(d) applies to a process’’. We decline to change the time actions, the commenter also suggested claimant’s or beneficiary’s right to a period within which beneficiaries must revising initially proposed § 5.177(f) for hearing upon being notified of a present evidence to challenge a the same reasons. We decline to make proposed reduction, discontinuance, or proposed adverse action. Beneficiaries this change because, as explained in our other adverse action under proposed generally are able to meet the 60-day discussion on proposed § 5.176, where a § 5.83. Therefore, it is unnecessary to deadline. Furthermore, VA already has decision does not result in adverse repeat the language of proposed procedures and regulations in place to action, VA will follow the notification § 5.82(d) in proposed § 5.176 because extend the 60-day period if good cause procedure in proposed § 5.83(b). § 5.82(d) outlines an overarching VA is shown. See § 5.99, ‘‘Extensions of Because the decision will not adversely policy that applies in all situations certain time limits’’, based on § 3.109(b). affect compensation payments or other where a hearing is based on a proposed Finally, the commenter remarked that benefits, the notification procedure reduction, discontinuance, other ‘‘many veterans subject to reduction or outlined in § 5.83(b) is adequate to adverse action, or on an appeal. elimination of benefits have previously preserve the veteran’s procedural and In addition, the commenter also urged been found to be profoundly disabled.’’ appellate rights if the veteran disagrees that VA include in proposed § 5.176 the The commenter expressed concern that with the decision. overarching duty to assist claimants in ‘‘VA should recognize that in reduction One commenter questioned whether their claims by ‘‘suggest[ing] the actions it is dealing with some of the initially proposed § 5.177(f) would submission of evidence which the more helpless segments of the entire effectively reduce a veteran’s claimant may have overlooked and veteran population and should tailor its compensation benefits by default which would be of advantage to the procedures accordingly.’’ VA ‘‘whether or not a final decision claimant’s position’’. The commenter beneficiaries subject to reduction of authorizing that reduction has been urged that proposed § 5.176 be amended benefits have varying degrees of issued’’. The commenter mistakenly to require that VA inform beneficiaries disability and our procedures are believed that VA would reduce benefits of what type of evidence they should intended to provide fair treatment to all before issuing a final decision on the file to show ‘‘that service connection or disabled veterans. To the extent that a matter. We decline to make any change a rating should be maintained.’’ The beneficiary subject to a proposed based on this comment because § 5.177 commenter provided an example, urging reduction may have difficulty clearly provides for two 60-day periods that VA inform a beneficiary if a notice responding due to a profound disability, before a reduction or discontinuance of disagreement as to the reduction the veteran may request a good cause takes effect: the first following a notice satisfies the requirement and would toll extension under § 5.99. We therefore of a proposed adverse action (see the 60-day period so that the veteran has propose to make no changes based on § 5.83(a), the second following the more time to file additional evidence if this comment. notice of the final decision. needed. In reviewing initially proposed In initially proposed paragraphs (d), As a preliminary matter, we note that § 5.176 to respond to comments, we (e), and (f), we stated that VA will sever it would be impossible for a beneficiary noted that it is largely redundant of service connection or reduce or to file a valid notice of disagreement initially proposed § 5.83(a), Right to discontinue benefits ‘‘effective the first until VA had issued a decision, not notice of decisions and proposed day of the month after a second 60-day merely a notice of a proposed decision. adverse actions. We therefore propose to period beginning on the day of notice to Initially proposed § 5.176(c) stated that delete § 5.176 and leave that number as the beneficiary of the final decision.’’ in proposing a reduction or reserved. We propose to include the We propose to revise the language in discontinuance, VA will notify the following sentence from initially each of those paragraphs to clarify that beneficiary that they may file, ‘‘evidence proposed § 5.176 in § 5.83: ‘‘If VA after applying the 60-day notice period, to show that service connection should receives no additional evidence within VA will apply a second 60-day period be maintained, the rating should not be the 60 days, or the evidence received which begins on the day VA sends reduced, or the benefits should remain does not demonstrate that the action notice to the beneficiary of the final

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decision. VA will then take the We, therefore, propose to correct supporting evidence to establish a appropriate action to modify benefits, paragraph (g) in redesignated paragraph veteran’s marital status or a parent/ effective the first day of the month after (f) to state that the effective date for the natural child relationship . . . if any of the second 60-day period. reduction or discontinuance of pension the following factors are true: . . . (3) As with initially proposed § 5.175, because of a change in disability or VA questions the validity of all or part discussed above, the dissent in Roberts, employability status is the first day of of the statement;’’. In comparing 23 Vet. App. at 435–39, revealed that the month after notice to the beneficiary paragraph (c) with other sections in initially proposed § 5.177 did not of the final decision. subpart D, we determined that the term clearly accomplish our intent, or, at We propose to move the effective date ‘‘validity’’ means having legal effect or least, it was ambiguous when read provision in initially proposed force. Our intent in paragraph (c)(3) was together with the regulation on effective paragraph (h) from § 5.177 to simply to include a question of the dates for correcting erroneous awards § 5.591(b)(5), to consolidate all the accuracy of a statement as one of the (initially proposed § 5.165, redesignated effective date rules on Chapter 18 reasons for requiring additional § 5.167). We therefore propose to revise monetary allowance into one section. evidence. We have, therefore, replaced the first sentence of initially proposed the term ‘‘validity’’ with ‘‘accuracy’’. paragraph (d), redesignated as paragraph IX. Subpart D: Dependents and In paragraph (c)(5), we propose to (c), to read: ‘‘Unless severance is based Survivors AL94 change the rule that a statement is not on the beneficiary’s act of commission In a document published in the sufficient to establish dependency when or omission that resulted in VA’s grant Federal Register on September 20, 2006, there is an indication of fraud or of benefits, this paragraph applies when we proposed to revise VA’s regulations misrepresentation. Thus, we intend to VA severs service connection.’’ We also governing dependents and survivors of change ‘‘in the other evidence in the propose to add a cross reference to veterans, to be published in a new 38 record’’ to ‘‘in other evidence in the § 5.167 stating, ‘‘See § 5.167 for effective CFR part 5. 71 FR 55052. We provided record’’, removing the word ‘‘the’’ that date of severance of service connection a 60-day comment period that ended appeared before ‘‘other evidence’’. This obtained by fraud.’’ November 20, 2006. We received change eliminates any suggestion that The Roberts dissent noted that ‘‘VA submissions from three commenters: the reasonable indication of fraud or reports that proposed § 5.165 ‘applies Disabled American Veterans, and two misrepresentation must appear in the only to reductions or discontinuances of members of the general public. totality of the evidence. VA will require erroneous awards.’ 72 Fed. Reg. additional evidence if any individual § 5.181 Evidence Needed To Establish 22,779.’’ Id. at 438, fn 13. The next piece of evidence indicates fraud or a Dependent sentence in the NPRM stated, however, misrepresentation, or if the evidence in ‘‘If a payment has not been authorized In the NPRM, we proposed §§ 5.181 its entirety gives such indication. This by a rating decision, then VA has not and 5.182 as separate sections. Because revision would make proposed made an award of such an erroneous we have combined the contents of paragraph (c)(5) better conform to payment and therefore recovery of that initially proposed §§ 5.181 and 5.182, as proposed paragraph (c)(4), which would payment is not a reduction or explained in § 5.182 below, we propose provide that a statement is not sufficient discontinuance of an ‘erroneous award’ to renumber initially proposed § 5.180 to establish dependency if the under 38 U.S.C. 5112(b)(9) or (10).’’ In as § 5.181. We propose to mark § 5.180 ‘‘statement conflicts with other evidence other words, initially proposed § 5.165 as reserved. in the record . . .’’ distinguished ‘‘reductions or We also propose to reorganize and For reasons explained in the preamble discontinuances’’ of ‘‘erroneous simplify the contents of initially to initially proposed § 5.181(c), 71 FR awards’’ from ‘‘reductions or proposed § 5.180 into § 5.181. 55052, 55055, we are omitting certain discontinuances’’ of other types of Proposed paragraph (a) simplifies the provisions of § 3.213(b) from part 5, payments that are not ‘‘awards,’’ and initially proposed ‘‘purpose’’ paragraph subpart D. Because we now propose to did not distinguish ‘‘reductions or to clearly state that this regulation is consolidate initially proposed § 5.181(c) discontinuances’’ from severance for limited to rules governing adding and other initially proposed provisions fraud as an act of commission or dependents, and with the exception of in currently proposed § 5.184(d), we omission. The proposed revision to paragraph (d), does not govern changes would repeat only the first sentence of redesignated § 5.177(c) and the to existing dependents. Also, in § 3.213(b) in § 5.184(d). The restoration additional cross reference to § 5.167 proposed paragraph (b)(1), we have of benefit provisions of § 3.103(b)(4), should make perfectly clear that the eliminated the applicability of this rule restated in § 5.84, is more effective date of severance of service to a case involving death, because death comprehensive than the restoration connection obtained by fraud is does not establish a dependent. Similar provision of § 3.213(b). Consequently, governed by proposed § 5.167 and is not conforming changes were made to all but the first sentence of § 3.213(b) is 60 days after VA provides notice of the § 5.182, which governs only changes to superfluous, and § 5.184(d) would final decision severing service the status of existing dependents. We restate only that first sentence. connection. proposed these changes for clarification Initially proposed § 5.180(d) stated: As initially proposed, § 5.177(g) stated purposes; we do not intend to change that VA would reduce or discontinue The types of additional supporting the persons to whom these rules would evidence required by paragraph (c) of this pension payments because of a change have applied as initially proposed. section are set forth in §§ 5.192 through in disability or employability status We also propose to change paragraph 5.194, 5.221, 5.229 and 3.211 of this chapter. effective the first day of the month after (b)(1) by inserting ‘‘, day,’’ after Where evidence is set forth in a particular a second 60-day period beginning on the ‘‘month’’ and ‘‘(city and state, or section in the order of preference, VA may day of notice to the beneficiary of the country if outside of a state)’’ after accept evidence from a lower class of final decision. This statement conflicts ‘‘place’’. This information is necessary preference if it is sufficient to prove the fact with 38 U.S.C. 5112(b)(5), and current for VA to properly document marriages, at issue. 38 CFR 3.105(f). The beneficiary is not termination of marriages, and births. This language was confusing. The rule afforded a second 60-day period before In initially proposed paragraph (c), we was intended to explain that certain his or her benefits are to be reduced. stated ‘‘VA will require additional types of evidence are needed to

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establish specific facts. For example, in well as the month and year of the However, it did not specify that in order proposed § 5.192(c), a copy of a public change. We also require the city and for these dates to apply, VA must record of marriage is generally more state, or country if outside of a state, receive information of the adoption no reliable and consequently preferred over where the change occurred. See VA later than 1 year after the event. We an affidavit from the official who Form 21–686c, Declaration of Status of therefore propose to correct this performed the marriage ceremony, and Dependents. We propose to amend omission by stating ‘‘For an adoption, therefore, VA will not accept the latter paragraph (a) to conform to VA’s current the earliest of the following dates, as unless the former is unobtainable. These practice. applicable, if VA receives information rules of preference are more thoroughly We propose to remove the cross about the adoption no later than 1 year explained in the individual paragraphs reference to § 3.217, ‘‘Submission of after the adoption’’. This change is that set forth the hierarchy of preferred statements or information affecting consistent with § 3.401(b)(1)(i) and evidence, so we struck the language entitlement to benefits’’, which was current practice. from initially proposed § 5.180(d). The contained in initially proposed only text that remained were the cross- § 5.181(b) because § 5.182 contains all § 5.184 Effective Dates of Reductions references to the actual rules that the relevant information needed to or Discontinuances Based on an Event describe the additional evidence that understand changes in dependency and That Changes Dependency Status may be provided to establish specific so the cross reference is unnecessary. We propose to combine the effective facts. Therefore, we propose to move We propose to move what was date provisions of initially proposed those cross-references into § 5.181(c) initially proposed paragraph § 5.181(c) §§ 5.181(c), 5.184, and 5.198 into one and renumber initially proposed to proposed § 5.184(d) because it is an section to make them easier to find and § 5.180(e) as § 5.181(d). We further effective-date rule specific to § 5.184. to avoid redundancy. We propose to propose to add language to the specific § 5.183 Effective Date of Award of mark § 5.198 as reserved. regulations cited in proposed § 5.181(c), Benefits for a Dependent As initially proposed, we referred to which include §§ 5.192(c), 5.221, 5.229, Initially proposed § 5.183 stated that a marriage, divorce, annulment, or death and 5.500. In addition, we have as a ‘‘change’’ in dependency status. determined that the list of cross the effective date for adding a dependent is the date VA receives However, these are ‘‘events’’ that result references was incorrect. We propose to in ‘‘changes’’ in dependency status. For correct the list in § 5.181(c). notice of the existence of the dependent. We propose to change ‘‘notice’’ to clarity, we propose to refer to these as Several initially proposed rules in an ‘‘event that changes’’ dependency RIN 2900–AL94 inadvertently added a ‘‘information’’. In proposed § 5.1, we status. requirement that a claimant’s or define notice as a written document that beneficiary’s statement filed as proof of VA sends to the claimant or beneficiary. In initially proposed § 5.198(b), we marriage, termination of marriage, or To state that VA receives notice of the stated, ‘‘VA will pay the reduced rate or birth of a child must be ‘‘written’’. No dependent would be contrary to our discontinue benefits effective the first such requirement exists in current proposed definition of the term. We day of the month that follows the month §§ 3.204(a)(1) or 3.213(a) and (c). We mean to say that a dependent will be in which the divorce or annulment have therefore not included this added upon receipt of information of occurred.’’ We have determined that the requirement in §§ 5.151(c), 5.181(b), the existence of such dependent. We term ‘‘occurred’’ was ambiguous 5.182(a), 5.183(a) or (b), 5.192(c), 5.193, also propose to state that the because under some states’ laws, the 5.221(b), or 5.229. ‘‘information’’ must be filed by the divorce or annulment does not take claimant or beneficiary. As stated in effect immediately after the court issues § 5.182 Changes in Status of proposed § 5.181, this regulation is the decree. We therefore propose to Dependents limited to adding dependents, therefore, revise this language to state, ‘‘VA will We propose to combine the contents a claimant or beneficiary may establish pay . . . in which the death occurred or of initially proposed §§ 5.181 and 5.182 a dependent to a new or existing award. in which the divorce or annulment into § 5.182, and reorganize and This clarification does not constitute a became effective.’’ For the same reason, simplify the rules. In the revised rule, change from the proposed rule. we propose to make a conforming we refer in proposed § 5.182(a) to a Initially proposed § 5.183(a) stated change to § 5.205(b)(1) and (2), beneficiary’s duty to report a ‘‘[c]hange that evidence of dependency must be regarding annulment, and (c)(1) and (2), in status of a living child affecting who received within 1 year ‘‘of’’ VA’s regarding divorce. no longer meets the definition of a request. We propose to clarify the § 5.190 Status as a Spouse dependent’’. This language replaces regulation to state that the evidence language in the initially proposed must be received ‘‘no later than 1 year We have determined that there is no § 5.182(a)(2) that had specifically after’’ VA’s request in order to eliminate need to establish a rule for ‘‘status’’ as discussed discontinuance of school ambiguity with regards to the date of a spouse. First, the term is plain attendance. The broader language in the submission of evidence. We have made language and does not need a proposed rule more accurately describes similar changes throughout this specialized definition for VA purposes a beneficiary’s duty to report any change regulation, and throughout this (unlike, for example, the term in a child’s status that makes the child document, where we previously stated ‘‘surviving spouse’’, which does have a no longer a dependent of the ‘‘1 year of’’ to now state ‘‘1 year after’’. specialized meaning). There can be no beneficiary. These additional changes to this rule are question that a reference to a ‘‘spouse’’ In initially proposed paragraph (a), we intended to simplify the general rule is a reference to a person’s marriage stated that a beneficiary must provide and the exceptions thereto. Notably, we partner. Second, proposed § 5.191 more VA a statement containing the details of propose to move paragraph (c) into than adequately defines a valid marriage any change in dependency that could paragraph (a) and reorganize paragraph for VA purposes. To the extent that lead to a reduction or discontinuance of (a). proposed § 5.190 had implemented the VA benefits. We required that the Initially proposed § 5.183(b)(3) stated 38 U.S.C. 101(31) requirement that a beneficiary report the month and year of the effective date for establishing the spouse be of the opposite sex, that the change. VA now requires the day, as dependency of an adopted child. requirement is contained in proposed

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§ 5.191. Hence, we propose to delete initially proposed as § 5.196(a). We § 5.200 Surviving Spouse: Requirement this rule and mark § 5.190 as reserved. propose to mark § 5.195 as reserved. of Valid Marriage to Veteran § 5.191 Marriages VA Recognizes as One commenter questioned VA’s We propose to reorganize initially Valid authority to determine whether a proposed §§ 5.200 and 5.201 to marriage was void in accordance with eliminate redundancy and potentially Initially proposed § 5.191 referred to the law of the place that governs the confusing cross referencing, and to deemed-valid marriages as an exception marriage’s validity. The commenter significantly clarify the rules. First, we to the general rule set forth in this opines that 38 U.S.C. 103(c) does not propose to renumber initially proposed section. However, a deemed-valid appear to provide VA with jurisdiction § 5.201 as § 5.200. We have also marriage is not an exception to the types or authority to make an independent renamed the rule as, ‘‘Surviving spouse: of marriages recognized by VA; rather, adjudication on the validity of a Requirement of valid marriage to it is one type of such marriages. veteran’s marriage. veteran.’’ This title is more descriptive Therefore, we propose to restructure As stated in the preamble to the of the rules within this section. This § 5.191 and add a paragraph (c). In initially proposed rule, current part 3 reorganization is for clarity and addition, we propose to change the term includes references to ‘‘void’’ marriages, simplification. ‘‘is’’ valid to ‘‘was’’ valid. Because the but it does not explain the meaning of In § 5.200(a), we propose to simplify laws of the states may change, we want a ‘‘void’’ marriage. See 38 CFR 3.207(a). several initially proposed paragraphs to to specify that the marriage had to be Under 38 U.S.C. 103, VA does have the state that in order to qualify as a valid at the time that it occurred. authority to make adjudicative decisions surviving spouse, the marriage between Finally, we propose to change the on the validity or legality of a marriage the veteran and the person by or for phrase ‘‘the right to benefits’’ in when determining whether or not a whom surviving-spouse status is sought § 5.191(b) to ‘‘entitlement to benefits’’. person is or was a spouse of a veteran must have met the requirements of This change improves clarity and is for VA purposes. The commenter’s § 5.191, unless the ‘‘deemed valid’’ consistent with the language of other suggested interpretation that the statute exception in paragraph (b) applies. part 5 VA regulations. merely allows for the recognition of In § 5.200(b)(1), we clarify that there Initially proposed § 5.191(a) and (b) marriage notwithstanding contrary state must have been an attempt at legal used the term ‘‘parties’’ to mean law is not consistent with the ‘‘whether marriage and that the person seeking ‘‘persons’’, as stated in the introductory or not’’ wording of the statute or with surviving-spouse status must have sentence. In order to avoid confusion, VA’s long-standing interpretation of the believed that a valid marriage resulted we propose to change the term ‘‘parties’’ statute. The statute provides that and lasted until the veteran died. This to ‘‘persons’’ in paragraphs (a) and (b). determinations of validity of marriage is not a change from current practice. § 5.192 Evidence of Marriage be made according to the law of the We also clarify that the marriage must place where the parties resided at the As stated in our discussion of § 5.181 have lasted for 1 year unless the person time of the marriage or the law of the above, VA requires the first type of had a child with the veteran. The place where the parties resided when evidence listed in the relevant section as proposed rule had required that a child the right to benefits accrued. This does proof of a certain relationship, if it is have been both ‘‘of or before the not mean VA is adjudicating the status obtainable. If it is unobtainable, then VA marriage’’; however, because the of the marriage for purposes of state will accept the next listed type of marriage must have continued until the civil law, which the commenter seems evidence that is obtainable to prove the veteran died, the result is that the child to misunderstand VA to be doing. We relationship. In part 3, this basic may have been born at any time. Thus, therefore propose to make no changes principle is stated in 38 CFR 3.204(b), the simplified language in § 5.201(b)(1) based on this comment. which refers the reader to §§ 3.205 is not substantively different from the This commenter further suggests that through 3.211. It is helpful to state this current and proposed rules. any new rule regarding VA’s authority principle in each section where it Initially proposed § 5.201(c) did not to determine the validity of a marriage applies, and we therefore propose to clearly define the phrase ‘‘no knowledge as it pertains to a veteran’s surviving state it in §§ 5.192(c), 5.221(b)(2), 5.229, of legal impediment’’. We propose to spouse or a veteran’s child, should and 5.500. clarify the definition of legal include a procedural reference of such impediment in initially proposed § 5.193 Proof of Marriage Termination questions to the Regional Counsel § 5.201(c), which is now renumbered as Where Evidence Is in Conflict or because VA adjudicators are generally § 5.200(b)(2). This clarification is Termination Is Contested not equipped to research and determine consistent with current practice. We We propose to make minor revisions such matters. We agree with this also propose to clarify the evidence that to § 5.193 for clarity. suggestion. In fact, VA has long- the person must file under § 5.192(c), standing procedural guidelines for the requirements of which must be met § 5.194 Acceptance of Divorce Decrees determination of a void marriage. In under § 5.200, without any We propose to make minor revisions such cases, the Veterans Service contradictory evidence. to § 5.194 for clarity. Representative collects all of the We also propose to reword the pertinent information and evidence regulation text in § 5.201(e), which is § 5.196 Void or Annulled Marriages from the claimant and files the case now renumbered as § 5.200(b)(4), for We propose to combine initially with Regional Counsel for a legal clarity. proposed §§ 5.195 and 5.196 to improve opinion as to whether or not the clarity and eliminate the need for users marriage is void. To implement this § 5.201 Surviving Spouse: to refer to two regulations to address the suggestion, we have revised proposed Requirements for Relationship With the issue of void or annulled marriages. The § 5.196 to indicate that VA Regional Veteran content of both initially proposed Counsel will make the determination We propose to renumber initially regulations would now appear in concerning whether a marriage is void proposed § 5.200 as § 5.201, and rename § 5.196. Section 5.196(a)(1) was initially under the law of the place that governs the section, ‘‘Surviving spouse: proposed as § 5.195. Section 5.196 was the validity of the marriage. Requirements for relationship with the

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veteran’’. This title is more descriptive provision is already stated in paragraph The exact date is needed in order to of the rules within this section. This (a)(2). For the same reason, we have avoid an erroneous payment. reorganization was made for clarity and removed that phrase from initially § 5.220 Status as a Child for VA simplification. proposed paragraph (d)(1)(iii), now Benefit Purposes Initially proposed § 5.200(a)(2) (now redesignated as paragraph (e)(1)(iii). renumbered as § 5.201(a)) specified that One commenter questioned why there We propose to reword the to qualify as a surviving spouse, that was a rule that allowed reinstatement of introductory text in § 5.220 for clarity by person must have been a member of the benefits to a surviving spouse who is no improving sentence structure. opposite sex from the veteran. Because longer remarried because of the death of Initially proposed § 5.220(a), began § 5.191, ‘‘Marriages VA recognizes as the second spouse, but there was no rule with the exception prior to the rule. To valid’’, requires that a valid marriage that allowed the surviving spouse to improve readability, we propose to must be to a person of the opposite sex, establish her initial entitlement to place the exception at the end of the that provision is unnecessary in benefits after the death of her second general rule. § 5.201(a) and we propose to remove it. spouse. The commenter provided the In nitially proposed § 5.220(b)(2)(i), We also propose to make several following example. A surviving spouse which is now paragraph (b)(1), we changes to improve clarity and is married to the veteran for over 30 referred to a child who is ‘‘incapable of consistency with the language of other years. The veteran subsequently dies self-support through his or her own VA regulations. and the surviving spouse remarries, but efforts by reason of physical or mental We propose to move the content of the surviving spouse’s second husband disability’’. We propose to eliminate the initially proposed § 5.430(b), ‘‘Marriage dies after several years of marriage. phrase ‘‘through his or her own efforts’’ date requirements for Improved Death After the death of her second husband, because it is redundant of ‘‘self- Pension’’, to § 5.201(b)(1), ‘‘More than the surviving spouse wants to claim VA support’’ and might be misinterpreted to one marriage to the veteran.’’ The benefits. The commenter further mean that the child intentionally caused content is based on 38 U.S.C. 103(b), indicated that VA allows for the his or her incapacity, which is clearly which is not limited to just Improved surviving spouse to receive benefits not what we intended. Pension. only if her second husband died before We propose to clarify the provision We propose to move the content of November 1, 1990, but in the scenario concerning whether a separation was initially proposed § 5.220(c)(2) to that was presented, the veteran died in temporary, initially proposed as § 5.226(c). Section 5.226(c) elaborates on January 1991. The commenter contends § 5.200(b)(3). In § 5.201(b)(4) we propose the criteria set forth in § 5.220(c)(2). that the surviving spouse would not be to add the term ‘‘with estrangement’’ to This approach also enables us to entitled to benefits because this is not modify ‘‘separation’’ to accurately eliminate the need to refer back to considered to be a reinstatement of reflect the circumstances to which § 5.220 in § 5.226(c). We will leave benefits, but rather a first-time paragraph (b)(4) applies. § 5.220(c)(2) as a cross-reference to application. Initially proposed § 5.203(c) § 5.226. § 5.203 Effect of Remarriage on a stated that the surviving spouse of the We propose to add a new paragraph Surviving Spouse’s Benefits veteran may be entitled to receive (d) to proposed § 5.220. In accordance The preamble to initially proposed benefits if the remarriage ended before with § 3.503(a)(2), this new paragraph § 5.203(a) stated that it would be a new November 1, 1990. This rule would provide that a person is still provision, restating part 38 U.S.C. corroborates the commenter’s statement. considered a child of a veteran even if 101(3), the statutory definition of However, initially proposed § 5.203(d) the person has entered active duty. surviving spouse. Part 3 restates the (now § 5.203(e)) allowed a surviving spouse to be eligible for benefits if he or § 5.221 Evidence To Establish a statutory definition of surviving spouse Parent/Natural Child Relationship in § 3.50(b). As a result of the she was otherwise ineligible for DIC elimination of initially proposed under the laws in effect prior to June 9, We propose to reword the regulation §§ 5.200 and 5.202, and the 1998, because of the surviving spouse’s text in § 5.221(a)(2) for clarity. incorporation of some of those initially remarriage after the veteran’s death. We propose to delete § 5.221(a)(2)— proposed provisions in currently Although the surviving spouse’s Note. The content of the Note is proposed § 5.203, we now propose to eligibility to DIC is said to be reinstated adequately covered in § 5.220(c)(2), so it restate § 3.50(b)(2) in § 5.203(a)(2). under § 5.203(e), this section applies to is unnecessary. Initially proposed § 5.202 concerned reopened as well as original claims. The Initially proposed § 5.221(b)(2)(iii)(A) the effect of a Federal court decision on limitation is that no payments may be limited evidence of paternity to church a remarriage determination. We propose issued for any period before October 1, records of baptism without referencing to mark § 5.202 as reserved, and include 1998. Because proposed § 5.203(e) other religions. We propose to revise the this rule in § 5.203(a)(1). We also already addresses the concerns of the rule to allow any ‘‘religious-context propose to change the regulation text in commenter, we propose to take no record documenting the birth of the proposed § 5.203(a)(1) from ‘‘In action based on this comment. child’’ in order to eliminate any determining eligibility for pension, We propose to clarify § 5.203(e)(2) to perceived bias for or against a particular death compensation, or dependency and state that no payments may be made for religion or faith. We propose to add indemnity compensation’’ to ‘‘In any period before October 1, 1998. The similar language to § 5.229(b). determining eligibility for benefits’’ to regulation text stated the month, and § 5.222 Evidence To Establish an clarify that the rule applies to all year, but failed to state the date. The Adopted Child Relationship benefits based on surviving-spouse exact date is needed in order to avoid status. It simplifies the regulation. an erroneous payment. We propose to add a sentence to the We propose to revise the language of We also propose to clarify § 5.203(f)(2) initially proposed undesignated first initially proposed paragraph (c)(4), now to state that no payments may be made paragraph to state the purpose of this redesignated as (d)(4), by removing the for any period before January 1, 2004. section. We propose to make technical phrase ‘‘openly to the public’’. That The regulation text stated the month revisions to § 5.222 to clarify that this phrase is unnecessary because that and year, but failed to state the date. rule is an exception to § 5.181(b). We

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propose to make similar clarifications to whether a person is permanently for this provision, and we therefore §§ 5.223 and 5.224. incapacitated. propose to remove it. We propose to add an order of § 5.228 Exceptions Applicable to Comment Relating to a Different Portion preference of types of evidence VA Termination of Child Status Based on of This Rulemaking requires to prove an adopted child Marriage of the Child relationship. We explained orders of A comment was submitted by a preference for evidence in our We propose to add an introductory member of the public concerning title discussion of § 5.181. sentence to give context to initially 32 National Guard troops suggesting proposed § 5.228. that their active duty for training be § 5.223 Child Adopted After a considered as ‘‘active duty’’, thereby § 5.229 Proof of Age or Birth Veteran’s Death allowing them veteran status. This Originally proposed § 5.223 (a) (now We propose to revise initially comment is outside the scope of this (b)) required, inter alia, that, ‘‘The proposed § 5.229 to clearly state that the proposed rule published under RIN person adopted was living in the evidence described therein must be 2900–AL94, but is relevant to another veteran’s household at the time of the provided in accordance with the order NPRM, RIN 2900–AL67, ‘‘Service veteran’s death . . .’’ This language was of preference in which it is listed, as Requirements for Veterans’’. This based on § 3.57(c)(1). Upon further discussed earlier in proposed § 5.192, comment was addressed together with review, we note that § 3.210(c)(2) uses and have also reorganized the rule to all of the other submissions received in the phrase ‘‘was a member of the improve readability. connection with RIN 2900–AL67. veteran’s household’’ to describe the In addition, we propose to remove the cross reference to § 5.180(e) (now Changes in Terminology for Clarity and/ same criteria for children adopted after or Consistency a veteran’s death. To make § 5.223(b) § 5.181(d)), ‘‘Acceptability of consistent with similar provisions in photocopies’’. That paragraph applies We also propose to correct our use of part 5 (§§ 5.220, 5.226, 5.233, 5.332) we equally to all of the sections listed in the terms ‘‘claim’’ and ‘‘application’’. propose to change the paragraph to read, § 5.181(c), so there is no need to Under 38 CFR 3.1(p), ‘‘Claim— ‘‘was a member of the veteran’s reference it in any of those sections. Application’’ is defined as ‘‘a formal or In the initially proposed paragraph household’’. We therefore propose not informal communication in writing (a)(4) we inadvertently changed the to restate the language of § 3.57(c)(1) requesting a determination of persons who could certify a birth. We and (3) in part 5 because it is redundant entitlement, or evidencing a belief in stated that a claimant or beneficiary of the language in § 3.210(c)(2). entitlement, to a benefit’’. As stated in could prove age or birth with ‘‘[a]n initially proposed § 5.1, for purposes of § 5.225 Child Status Based on affidavit or certified statement from a part 5, ‘‘claim means a formal or Adoption Into a Veteran’s Family Under physician or midwife present during the informal communication in writing Foreign Law birth’’. However, 38 CFR 3.209(d), from requesting a determination of which this paragraph derives, allows Our definition of ‘‘State’’ in § 5.1 entitlement or evidencing a belief in proof of age or birth with an ‘‘[a]ffidavit includes territories and possessions of entitlement, to a VA benefit under this or a certified statement of the physician the US. Therefore it is unnecessary to part’’ and as stated in proposed § 5.1, or midwife in attendance at birth’’. We include the Commonwealth of the ‘‘application means a specific form propose to use this language because it Northern Mariana Islands in this required by the Secretary that a claimant is a more precise statement of the section. We propose to remove it. must file to apply for a benefit’’. We requirement. similarly propose to edit the part 5 § 5.227 Child Status Based on § 5.230 Effective Date of Award of regulations proposed in AL94 to correct Permanent Incapacity for Self-Support Pension or Dependency and Indemnity other inconsistencies in terminology. We have clarified the regulation text Compensation to, or for, a Child Born X. Subpart E: Claims for Service in § 5.227(b)(1)(iv). The initially After the Veteran’s Death Connection and Disability proposed rule said that ‘‘evidence that We propose to reword the section for Compensation Service-Connected and a person was not employed before or clarity. Other Disability Compensation after reaching 18 years old tends to show incapacity for self support when § 5.234 Effective Date of an Award, A. Service-Connected and Other the lack of employment was due to the Reduction, or Discontinuance of Disability Compensation person’s physical or mental disabilities Benefits Based on Child Status Due to In a document published in the and not due to unwillingness to work or Permanent Incapacity for Self-Support Federal Register on September 1, 2010, other factors unrelated to the person’s We propose to restructure initially we proposed to revise VA regulations disability.’’ We believe that the phrase proposed § 5.234(a), by creating separate governing service-connected and other ‘‘before or after reaching 18 years old’’ paragraphs (a)(1) and (2) for effective disability compensation. See 75 FR could be unclear and we therefore dates of awards and for reductions and 53744. We provided a 60-day comment propose to clearly state that the rule discontinuances. We believe this period that ended November 1, 2010. applies to a person who ‘‘has never been structure will better inform readers on We received submissions from 10 employed’’. the contents of this section. commenters: National Organization of We propose to revise initially Veterans Advocates, National Veterans proposed § 5.227(c) to clarify that this § 5.238 Status as Veteran’s Parent Legal Services Program, Paralyzed rule does not exclude from In initially proposed § 5.240(c) we Veterans of America, Vietnam Veterans consideration any particular evidence or stated that the term ‘‘parent’’ includes a of America, and six members of the require that any evidence should be natural mother or father of an general public. treated more favorably. The rule simply illegitimate child ‘‘if the usual family One AM07 commenter commended provides guidance to VA employees and relationship existed.’’ Upon further VA ‘‘for the hard work and dedication to the public about likely sources of review, we have determined that there that its personnel have put into this evidence relevant to the question is no statutory or regulatory authority important project’’ and stated that,

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‘‘Overall . . . VA did achieve its goals veterans can call to inquire about the obtain it and add it to the record (see 38 to make its service-connected status of their benefits claims (1–800– CFR 3.159, to be codified in part 5 as regulations ‘logical, claimant-focused 827–1000), which veterans find very § 5.90). We therefore propose to make and user friendly[.]’ ’’ helpful. For these reasons, we propose no change based on this comment. One commenter stated that while the to make no changes based on this One commenter expressed concern general idea of the proposed rule is comment. that we did not repeat in proposed good, some of the proposed changes One commenter stated that he is § 5.242 the following language from 38 may be adverse to veterans. However, opposed to ‘‘patient registries’’ in the CFR 3.303(a): ‘‘Determinations as to the commenter did not specifically prescription process and that all drugs service connection will be based on explain which changes might be should be taken or not at the discretion review of the entire evidence of record, adverse. The commenter also urged that of the patient with the advice of his or with due consideration to the policy of VA offer online access to court her doctor. Because this comment is the Department of Veterans Affairs to decisions cited in its rulemaking outside the scope of this rulemaking, we administer the law under a broad and documents. propose to make no change. liberal interpretation consistent with the Because the commenter did not One commenter urged that VA facts in each individual case.’’ specifically explain which changes suspend its Regulation Rewrite Project We inadvertently failed to explain might be adverse to veterans, we cannot until it is shown how the why we did not include this language in respond to that assertion, and we implementation of part 5 will interact initially proposed § 5.242. Because propose to make no change based on with certain other VA programs: Virtual proposed § 5.4(b) would clearly state that comment. Regarding the suggestion VA, Virtual Regional Office and the that ‘‘VA will base its decisions on a on court decisions, we note that Veterans Benefits Management System. review of the entire record’’, we believe decisions of the U.S. Court of Appeals We do not believe that the it would be redundant and possibly for Veterans Claims are available on implementation of part 5 will disrupt confusing to restate this principle in their Web site at www.courts.cavc.gov those information technology systems specific sections in part 5 (as does part and decisions of the U.S. Court of because they were designed to 3). Similarly, § 5.4(b) states: Appeals for the Federal Circuit are accommodate changes in law or available at http://www.cafc.courts.gov. regulation. VA will attempt to It is VA’s defined and consistently applied We therefore propose to make no implement part 5 in a manner that policy to administer the law under a broad interpretation, consistent with the facts changes based on these comments. causes the minimum possible shown in every case. VA will make decisions Another commenter asserted that disruption to VA claims processing that grant every benefit that the law supports because of the complexity of the operations. We believe that over the while at the same time protecting the regulations proposed in AM07, veterans long term, having clear regulations for interests of the Government. will incur very expensive legal costs in our employees to apply will Since this language is substantially order to interpret them and determine significantly improve timeliness and the same as the language quoted by the what benefits they are entitled to. The accuracy in claims processing. commenter urged VA to add a section at commenter, and it applies to all VA the end of part 5 outlining what a § 5.242 General Principles of Service claims rather than just service veteran’s options are if the veteran Connection connection, there is no need to repeat it disagrees with a VA decision. The Initially proposed § 5.242(a) states in § 5.242. commenter also suggested that VA that ‘‘VA will give due consideration to One commenter urged VA to establish provide a telephone number to call in any evidence of record concerning the a new policy by revising initially the event that a veteran does not places, types, and circumstances of the proposed § 5.242 to create a understand the final rule on part 5. veteran’s service . . .’’ One commenter presumption based on H.R. 1490, 110th VA’s intent in rewriting these suggested that we insert the phrase ‘‘and Congress, 1st session. The commenter regulations was to make them less records constructively in the VA’s suggested that VA include the following complex. To the extent that commenter possession’’ after ‘‘evidence’’, to ensure language in § 5.242(c): believes that he or she requires that VA complies with the constructive (1) A claimant presenting a claim for assistance in preparing a claim for possession rule set forth in Bell v. benefits with respect to a service-connected benefits, VA has recognized 87 Veterans Derwinski, 2 Vet. App. 611 (1992). disability or death shall be presumed to have Service Organizations (VSO) for We do not believe it is necessary to presented a valid claim of service purposes of providing no-cost assistance include Bell’s constructive possession connectedness, subject to the requirements of rule in VA regulations, and doing so subparagraph (2), unless the Secretary with claims for VA benefits. Each of determines that there is clear and convincing these VSOs has accredited might actually confuse readers. Any evidence to the contrary. representatives available to help evidence that is constructively in VA’s (2) A claimant presenting a claim described veterans in preparing claims. A possession would already be under subparagraph (1) shall be required to searchable list of recognized VSOs and encompassed by the rule in § 5.4(b) that support such claim with proof of service accredited representatives is available at VA decisions will be based on a review referred to in such claim, and a brief http://www.va.gov/ogc/apps/ of the entire record. Adding that this description of the nature, including the accreditation/index.asp. includes evidence within VA’s connection to such service, of the disability The regulations on how to file a possession and which could reasonably or claim. notice of disagreement with a VA be expected to be a part of the record The commenter asserted that this decision are found in 38 CFR parts 19– could imply a requirement that the presumption would allow VA to quickly 20, not in part 3, so that comment is agency of original jurisdiction (AOJ) process backlogged claims. outside the scope of this rulemaking. must consider material that is not The purpose of the Regulation VA does not offer a phone number for actually in the record, which would be Rewrite Project is to make VA’s purpose of explaining its regulations; impossible. Furthermore, if the AOJ is compensation and pension regulations we do not believe that would be an aware of such evidence and it is more logical, claimant-focused, and efficient use of government resources. ‘‘necessary to substantiate the claim’’, user-friendly, not to serve as a vehicle But VA does have a number where then the AOJ is already under a duty to for making major changes to VA

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policies. Thus, the comment is outside principle of veterans law and no court Id. the scope of this rulemaking. has held that it is in any way In initially proposed § 5.243(d)(1) we inconsistent with the regulatory incorporated the requirement, as stated § 5.243 Establishing Service language in §§ 3.1(k) or 3.303(a). We by the Savage court, ‘‘that the condition Connection. disagree with the assertion that the use [was] observed during service or any Two commenters expressed concern of the terms that VA proposed will applicable presumption period’’ with that VA’s use of the term ‘‘proximately cause confusion by imposing a ‘‘strict the phrase ‘‘signs or symptoms of an caused’’ in proposed § 5.243(a) would medical standard’’ in cases where it injury or disease during active military improperly narrow the criteria for would be ‘‘inappropriate and excessive’’ service or during an applicable showing incurrence or aggravation. One and the commenter offers no support for presumptive period.’’ In initially of these commenters believed that using this assertion. We likewise disagree proposed paragraph (d)(2) we the term would improperly import a with the assertion that the proposed incorporated the requirement, as stated restrictive tort law concept into VA’s rules would impose some new by the court, that ‘‘continuity of regulations on service connection. ‘‘definitive proof’’ standard for diseases symptomatology [was] demonstrated Although this was not our intent, to such as temporomandibular joint thereafter’’ with the phrase ‘‘The signs avoid any such misinterpretation, we syndrome and ulcers, and again the or symptoms continued from the time of propose to revise the term to ‘‘due to or commenter offers no support for this discharge . . . until the present.’’ In the result of’’ as suggested by one of the assertion. Regarding the commenter’s initially proposed paragraph (d)(3) we commenters. For the same reason, we statement that VA has determined that incorporated the requirement, as stated propose to make the same revision in there is a positive association between by the court, ‘‘that competent evidence §§ 5.246 and 5.247. herbicides and three medical conditions relates the present condition to that One of these commenters also rejected ‘‘even though there is no proof that symptomatology’’ with the phrase ‘‘The the use of term ‘‘caused by’’ in proposed exposure to herbicides caused veterans signs or symptoms currently § 5.241(a) and (b), which the commenter to develop the conditions’’, we note that demonstrated are signs or symptoms of suggested be changed to ‘‘ ‘incurred’ or this determination was made pursuant an injury or disease, or the residuals of ‘aggravated’ ’’ (as in current 38 CFR to an entirely different statute (38 U.S.C. an injury or disease, to which paragraph 3.1(k) and 3.303(a)) or ‘‘related to’’. The 1116) than the statutes that authorize (d)(1) of this section refers.’’ commenter similarly, urged VA to the causation terms used in §§ 5.241 and We believe that the language of replace ‘‘proximately caused’’ in 5.243 (38 U.S.C. 1110 and 1131). Our initially proposed § 5.243(d) accurately proposed § 5.243(a) with ‘‘related to’’ use of the causation terms in §§ 5.241 restates the intent of current § 3.303(b) and ‘‘causal link’’ in proposed and 5.243 will express the same as summarized by the Savage court. As § 5.243(a)(3) with ‘‘relationship.’’ The concepts as stated in §§ 3.1(k) or the court stated, the keys to the commenter acknowledged that, as we 3.303(a), with no substantive change, continuity doctrine are that ‘‘the noted in the preamble to proposed and in a way that is more clear to those condition is observed [through signs or § 5.243, the court in Shedden v. using the regulations. For these reasons, symptoms] during service or any Principi, 381 F.3d 1163, 1166–67 (Fed. we propose to make no changes based applicable presumption period, Cir. 2004) explained that service on these comments. continuity of symptomatology [i.e. signs connection requires ‘‘a causal One commenter urged that, in order to or symptoms] is demonstrated relationship between the present comply with the standard for continuity thereafter, and competent evidence disability and the disease or injury of symptomatology contained in Savage relates the present condition to that incurred or aggravated during service’’ v. Gober, 10 Vet. App. 488, 498 (1997), symptomatology.’’ Savage, 10 Vet. App. (citing Caluza v. Brown, 7 Vet. App. VA should revise initially proposed at 498. Following the commenter’s 498, 505 (1995)). Nevertheless, the § 5.243(d) by inserting ‘‘injury or suggestion of inserting ‘‘injury or commenter believed that use of the disease’’ before ‘‘or signs or symptoms’’ disease’’ would introduce a new causation terms that VA proposed in in paragraphs (d)(1) and (2) and also in element to the doctrine which is not §§ 5.241 and 5.243 will cause confusion paragraph (d)(3). For the same reason, found in § 3.303(b) nor the court cases by imposing a ‘‘strict medical standard’’ the commenter also suggested that VA interpreting that paragraph. Moreover, it in cases where it would be revise paragraph (d)(3) to read, ‘‘(3) would risk confusing readers by ‘‘inappropriate and excessive.’’ The Competent evidence relates a present blurring the line between the chronicity commenter asserted that diseases such injury or disease or present signs or doctrine and the continuity doctrine. as tempromandibular joint syndrome symptoms to the injury or disease or For these reasons, we propose to make and ulcers ‘‘may not be susceptible to signs or symptoms which occurred no change based on this comment. definitive proof that the disease was during service or during an applicable Since we published AM07, ‘‘Service- ‘caused by’ the incident in service.’’ The presumptive period for a disease.’’ Connected and Other Disability commenter also noted that VA has Regarding the suggested additions to Compensation’’ 75 FR 53744 (Sept. 1, determined that there is a positive paragraphs (d)(1) and (2), we note that 2010), VA has determined that initially association between herbicides and the Savage court summarized the proposed § 5.243 did not accurately three medical conditions ‘‘even though continuity provision of 38 CFR 3.303(b) restate current § 3.303(b) in the there is no proof that exposure to as follows: following respect. Section 5.243 would herbicides caused veterans to develop have made ‘‘continuity of the conditions.’’ In sum, then, the rule here established is symptomatology’’ a separate method of As a preliminary matter, we note that as follows * * * If the chronicity provision showing service connection distinct the language ‘‘proximately caused’’ in is not applicable, a claim may still be well from the ‘‘chronicity’’ method set forth proposed § 5.243(a) was merely a grounded or reopened on the basis of in § 3.303(b). In Walker v. Shinseki, 708 recitation of the title of proposed § 3.303(b) if the condition is observed during F.3d 1331 (Fed. Cir. 2013), the U.S. service or any applicable presumption § 5.246, rather than regulation text. period, continuity of symptomatology is Court of Appeals for the Federal Circuit More fundamentally, we note that the demonstrated thereafter, and competent explained the correct interpretation of ‘‘causal relationship’’ principle set forth evidence relates the present condition to that these § 3.303(b) provisions. The Court in the Caluza case is a well established symptomatology. held that continuity of symptomatology

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is actually a means of proving the with this transformation. Moreover, acceptance, and enrollment’ that would existence of a chronic disease during further study is needed to determine the serve to prevent the presumption from military service or an applicable potential impact of such changes, after arising.’’ Id. presumptive period. We now propose to which VA may conduct a separate Initially proposed at 75 FR 53764, correct the error contained in the NPRM rulemaking for this purpose. We paragraph (b) described a report of entry by revising the provisions of initially therefore propose not to include injuries examination not a condition for proposed § 5.243(d), which we are in § 5.243(c). application of the presumption as a presumption of sound condition applies moving into paragraph (c). § 5.244 Presumption of Sound In addition to misstating the role of even if: Condition on Entry Into Military Service continuity of symptomatology, we • The veteran did not have a medical erroneously stated in initially proposed Initially proposed § 5.244(c)(2) stated, examination for entry into active § 5.243 that the term ‘‘chronic disease’’ ‘‘The presumption of sound condition is military service; or • included other diseases besides those rebuttable even if an entry medical There is no record of the listed in current § 3.309(a). The Walker examination shows that the examiner examination. court clarified that the term ‘‘chronic tested specifically for a certain injury or In drafting paragraph (b), we disease’’, as used in § 3.303(b), means disease and did not find that injury or overlooked precedent decisions of the only a disease listed in § 3.309(a) and no disease, if other evidence of record is U.S. Court of Appeals for Veterans others. Id. at 1338. We propose to clarify sufficient to overcome the Claims (CAVC) that held that 38 U.S.C. this point in § 5.243(c)(2). presumption.’’ 1111 requires an entry examination for Lastly, we note that initially proposed One commenter urged that VA clarify the presumption to apply. In Smith, the paragraph (d)(2), which stated, ‘‘The paragraph (c)(2) by revising it to read, court stated that section 1111 ‘‘provides signs or symptoms continued from the ‘‘The presumption of sound condition is that the presumption applies when a time of discharge or release from active rebuttable, in accordance with veteran has been ‘examined, accepted, military service until the present’’, subsection (d)(1), below, even if an and enrolled for service.’’’ 24 Vet. App. omitted a presumptive period. To entry medical examination shows that at 45. The court said, ‘‘Plainly, the correct this omission, we propose to the examiner tested specifically for a statute requires that there be an insert ‘‘or from the end of an applicable certain injury or disease and did not examination prior to entry into the presumptive period for a disease’’ in find that injury or disease, provided period of service on which the claim is § 5.243. other evidence of record is sufficient to based.’’ Id. Although Ms. Smith In AM07, we stated: overcome the presumption.’’ The ‘‘attained veteran status because she commenter asserted that this revision is served the required period of active VA’s long-standing practice is to apply the needed to ensure the paragraph duty service,’’ id. at 44, the presumption principles of chronicity and continuity to residuals of injury. This practice provides a complies with Kent v. Principi, 389 F.3d could not apply in her case because fair and efficient means to determine service 1380, 1383 (Fed. Cir. 2004). there was no evidence of ‘‘an connection in certain cases, and it is logical As we stated in the preamble to examination made contemporaneous to apply these principles to injuries as well AM07, we added paragraph (c)(2), with [her] entry’’ into the periods of as to diseases. Therefore, proposed which has no part 3 counterpart, to active duty for training with the § 5.243(c)(1) would also apply to an injury incorporate the Kent holding into VA National Guard on which she based her incurred or aggravated in service where the regulations. The commenter offers no claim. Id. at 46. current disability is due to ‘‘the chronic explanation of how initially proposed The court explained that ‘‘[i]n the residuals of the same injury.’’ paragraph (c)(2) is inconsistent with absence of such an examination, there is The court rejected the argument that Kent nor how it is unclear in any way. no basis from which to determine § 3.303(b) applies to injuries as well as Furthermore, the clear and whether the claimant was in sound to chronic diseases, stating, ‘‘We thus unmistakable evidence standard of condition upon entry into that period of reject Walker’s broader argument that paragraph already applies to rebuttal of service on which the claim is based.’’ Id. continuity of symptomatology in the presumption of service connection. at 45. The court’s reason why the statute § 3.303(b) has any role other than to We therefore make no change based on precludes applying the presumption afford an alternative route to service this comment. when there was no contemporaneous connection for specific chronic We propose to exclude initially entry examination, or no evidence of diseases.’’ Id. The court also noted that, proposed § 5.244(b) because it is one, was essentially the opposite of our ‘‘The Secretary is free to amend contrary to judicial interpretation of 38 reason why the presumption could § 3.309(a) if he determines that chronic U.S.C. 1111. Smith v. Shinseki, 24 Vet. apply in those situations. diseases beyond those currently listed App. 40 (2010); Crowe v. Brown, 7 Vet. In Crowe, 7 Vet. App. at 245 (1994), should benefit from the application of App. 238 (1994). Proposed § 5.244, the the court stated that the presumption of § 3.303(b),’’ and noted that, ‘‘the part 5 counterpart of 38 CFR 3.304(b), sound condition ‘‘attaches only where Secretary is currently considering a would implement 38 U.S.C. 1111, the there has been an induction substantial revision of his regulations presumption of sound condition. We examination in which the later- concerning service connection for initially proposed paragraph (b), which complained-of disability was not disability compensation’’, referring to has no part 3 counterpart, to ‘‘clarify detected.’’ Though the court focused on VA’s Regulation Rewrite Project. Id. that the presumption of sound condition the term ‘‘noted’’ in section 1111, as VA As stated above in this preamble, our attaches even if the military service interpreted the term in 38 CFR 3.304(b), Veterans Benefits Administration’s department did not conduct an entry the statement is direct and unequivocal. Transformation Plan will use improved medical examination, or if there is no Neither Smith nor Crowe was a case technology and work methods to record of an entry examination.’’ 75 FR of a claimant for disability process disability claims more 53744, 53750 (Sep. 1, 2010). We compensation who sought to apply the efficiently. VA has determined that explained that ‘‘if there was no entry presumption of sound condition to a significantly revising the substantive medical examination, then there could period of active duty even though he or content of our service connection be no ‘defects, infirmities, or disorders she had no entry examination. Neither regulations at this time might interfere noted at the time of the examination, Smith nor Crowe was a case of a veteran

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of active duty who claimed to have had effects of treatment provided during applies to all claims, there is no need to an entry examination, but there is no service do not constitute an increase in repeat it in § 5.250. We therefore record of it. Nonetheless, both decisions the severity of the underlying condition. propose to make no change based on made unequivocal statements that Likewise, there is no such requirement this comment. mean, in essence, if there was no entry in current § 3.306(b)(1), the regulation One commenter urged that VA revise examination, the presumption cannot on which initially proposed initially proposed § 5.250 to eliminate apply. VA must give deference to the § 5.245(b)(3) was based. The commenter the ‘‘credible supporting evidence’’ court’s interpretation of the plain offers no explanation of how initially requirement for PTSD stressors which meaning of a statute. See Cypert v. proposed paragraph (b)(3) is would permit a VA fact-finding hearing Peake, 22 Vet. App. 307, 311 (2008) inconsistent with Hines or § 3.306(b)(1) official to consider a veteran’s sworn, (Deference to department’s regulation nor how it is unclear in any way. We personal hearing testimony—if believed not warranted when its interpretation of therefore propose to make no change by the VA hearing official—as evidence a statute is contrary to the plain based on this comment. that can establish that the veteran was exposed to an adequate stressor. The meaning of the statutory language). We § 5.249 Special Service Connection conclude that the court’s interpretation commenter asserted, among other Rules for Combat-Related Injury or things, that this requirement, which is of § 1111 in both cases precludes Disease initially proposed § 5.244(b). based on an identical, long-standing Consequently, we have removed it from One commenter urged VA to establish provision in 38 CFR 3.304(f), is contrary proposed part 5. We also propose to a new policy by revising initally to 38 U.S.C. 5107(b), which states, ‘‘The redesignate paragraphs (c) and (d) as (b) proposed § 5.249 to create a Secretary shall consider all information and (c), respectively. presumption based on H.R. 6732, 110th and lay and medical evidence of record In proposed rule AM07, ‘‘Service- Congress, 2nd session. The commenter in a case . . .’’ Connected and Other Disability suggested that VA include the following We respectfully note that the legal Compensation,’’ 75 FR 53744 (Sept. 1, language in § 5.249: ‘‘(iii) Deployment arguments raised by the commenter 2010), we in advertently omitted the during service to a theatre of combat were addressed and rejected by the U.S. first five sentences of current § 3.303(c). operations or hostilities during a period Court of Appeals for the Federal Circuit We now propose to insert these of war.’’ in Nat’l Org. of Veterans Advocates v. The purpose of the Regulation sentences, with only minor stylistic Sec’y of Veterans Affairs, 330 F. 3d 1345 Rewrite Project is to make VA’s changes to improve readability, as (Fed. Cir. 2003). In NOVA, the court compensation and pension regulations § 5.244(d). expressly held that § 3.304(f) does not more logical, claimant-focused, and permit VA to deny service connection § 5.245 Service Connection Based on user-friendly, not to serve as a vehicle for PTSD in non-combat veterans Aggravation of Preservice Injury or for making major changes to VA without considering all the information Disease policies. Thus, the comment is outside and evidence of record in cluding lay Initially proposed § 5.245(b)(3) stated the scope of this rulemaking. evidence. 330 F.3d at 1352. It went on to hold that § 3.304(f) was consistent the usual effects of medical or surgical § 5.250 Service Cnnection for with 38 U.S.C. 5107. Id. Because the treatment in service that ameliorates a Posttraumatic Stress Disorder preexisting injury or disease, such as court has upheld this provision, and One commenter expressed concern postoperative scars, or absent or poorly because we continue to believe that the that proposed § 5.250 modifies the functioning parts or organs, are not an rationale for the requirement is valid, provision in 38 CFR 3.304(f) that states, increase in the severity of the we propose to make no changes based ‘‘[i]f the evidence establishes that the underlying condition and they will not on this comment. veteran engaged in combat with the Initially proposed § 5.250(a)(1), be service connected unless the enemy and the claimed stressor is required that in claims for service preexisting injury or disease was related to that combat . . . the veteran’s connection for PTSD, there must be otherwise aggravated by service. lay testimony alone may establish the One commenter urged that VA clarify ‘‘[m]edical evidence diagnosing PTSD in occurrence of the claimed in-service accordance with § 4.125(a) of this paragraph (b)(3) by revising it to read: stressor.’’ The commenter believed that chapter.’’ 75 FR at 53765. See 38 CFR (3) Effects of medical or surgical treatment. proposed § 5.250 ‘‘shifts the burden to 4.125(a) (2010). Under § 4.125, all Where medical evidence establishes by clear the veteran by requiring ‘credible mental disorder diagnoses must and convincing evidence that the usual evidence from any source, other than conform to the American Psychiatric effects of medical or surgical treatment provided to a veteran in service to ameliorate the claimant’s statement, that Association’s Diagnostic and Statistical a preexisting injury or disease, such as corroborates the occurrence of the in- Manual of Mental Disorders, Fourth postoperative scars, or absent or poorly service stressor.’ ’’ Another commenter Edition (1994) (‘‘DSM–IV’). Id. One functioning parts or organs, do not constitute also expressed the same concerns. commenter asserted that initially an increase in the severity of the underlying Proposed § 5.250 does not increase proposed § 5.250(e)(2)(ii) is inconsistent condition, they will not be service connected the burden of proof on veterans with the DSM–IV’s first diagnostic unless the preexisting injury or disease was claiming service connection for criterion to support a diagnosis of PTSD otherwise aggravated by service (emphasis posttraumatic stress disorder (PTSD). because the proposed paragraph uses added). The provision quoted by the commenter terms that the DSM–IV does not use. The commenter asserted that this is merely a restatement of the language Specifically, the commenter noted that revision is needed to ensure the in the introductory paragraph of under the DSM–IV’s first diagnostic paragraph complies with Hines v. § 3.304(f). The special provision for criterion, a person who has been Principi, 18 Vet. App. 227, 241–42 combat veterans that the commenter exposed to a psychologically traumatic (2004). referred to is discussed in proposed event, like those events described in As a preliminary matter, we note that § 5.250(d). That paragraph refers the initially proposed § 5.250(e)(2)(i), VA the Hines case does not impose any reader to the rule for combat veterans omitted the term ‘‘intense’’ and instead requirement that there be ‘‘clear and contained in § 5.249. As we stated in the stated that must have experienced a convincing’’ evidence that the usual NPRM preamble, because § 5.249 response to the traumatic event that

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‘‘involved intense fear, helplessness, or notice asking for additional evidence, such as disability resulting from them may not horror.’’ However, under initially statements regarding changes in behavior be service-connected. However, proposed § 5.250(e)(2)(ii), a veteran’s from friends and family, the guilt and shame disability resulting from a mental response to a traumatic event must that they are suffering make it unlikely that disorder that is superimposed upon ‘‘involve [ ] a psychological or psycho- the veteran will respond to the 30 day mental retardation or a personality deadline of the VCAA notice. Many of ICLC’s physiological state of fear, helplessness, clients are in mental health treatment disorder may be service-connected.’’ or horror.’’ 75 FR at 53766. The facilities because of the impact of their PTSD Proposed § 5.251(c) expands the commenter noted that the terms secondary to MST. These clients cannot principle to recognize that the ‘‘psychological’’ and ‘‘psycho- handle day to day functions. Responding preexistence or coexistence of physiological’’ do not appear in the within 30 days to a VCAA notice is disabilities for which VA cannot grant DSM–IV. unrealistic. This is especially true service connection does not preclude We note that § 5.250(e)(2)(ii) was considering that the information the Regional granting service connection for based on a provision in § 3.304(f)(3), Office requires can be difficult to obtain. ‘‘superimposed’’ disabilities that which VA added by a separate Records from rape crisis centers are independently meet the criteria for rulemaking published July 13, 2010 (75 destroyed after a period of time and it can service connection. take as long as nine months to obtain service FR 39843) and which has been treatment records from the National B. Presumptions of Service Connection challenged in the case Paralyzed Personnel Records Center. We have found Veterans of America v. Sec’y of for Certain Disabilities, and Related that our clients need significant help and Matters Veterans Affairs, 412 F. App’x 286 (Fed. time to respond to the VCAA notice. Cir. 2011). We believe that it would be In a document published in the premature to revise proposed The commenter also expressed Federal Register on July 27, 2004, we § 5.250(e)(1) until the U.S. Court of concern that proposed § 5.250(f) does proposed to revise VA regulations Appeals for the Federal Circuit has not provide enough detail as to how a governing presumptions of service rendered a decision in the above veteran will be ‘‘advised that evidence connection for certain disabilities and captioned case, and we therefore from sources other than the veterans related matters, to be published in new propose to make no change based on service records may constitute credible 38 CFR part 5. See 69 FR 44614. We these comments. supporting evidence.’’ The commenter provided a 60-day comment period that Several commenters suggested that noted that although the purpose of VA’s ended September 27, 2004. We received proposed § 5.250(e)(1) be changed to Regulation Rewrite Project is to make submissions from seven commenters: allow the stressor to be confirmed by VA regulations more logical, claimant- Disabled American Veterans, Paralyzed any examining or treating psychiatrist or focused, and user-friendly, simply Veterans of America, Vietnam Veterans psychologist, not just a VA psychiatrist adopting 38 CFR 3.304(f)(5) ‘‘wastes an of America, and four members of the or psychologist. We note this provision opportunity to provide more concrete general public. is based on a provision in § 3.304(f)(3), explanation of the type of notice that Undesignated Center Heading Before which VA added by a separate will be provided to a veteran with PTSD § 5.260 rulemaking published July 13, 2010 (75 secondary to MST.’’ FR 39843) and which has been As a preliminary matter, we note that One commenter suggested that the challenged in the case Paralyzed the procedures VA follows for proposed undesignated center heading Veterans of America v. Sec’y of requesting evidence from claimants is before § 5.260 is inaccurate. As Veterans Affairs, 412 F. App’x 286 (Fed. explained in proposed § 5.90 (based on proposed, it read, ‘‘Presumptions of Cir. 2011). We believe that it would be current 38 CFR 3.159). These Service Connection for Certain premature to revise proposed procedures apply to all claims, so it Disabilities, and Related Matters.’’ The § 5.250(e)(1) until the U.S. Court of would be redundant to restate them in commenter suggested that the word Appeals for the Federal Circuit has § 5.250. Regarding the commenter’s ‘‘disabilities’’ should be replaced by the rendered a decision in the above suggestion that, for military sexual word ‘‘diseases’’ because the captioned case, and we therefore trauma claims, VA expand the time presumption of service connection propose to make no change based on permitted to respond to VA requests for attaches to the disease rather than the these comments. evidence, we note that the commenter is disability and because it conflicts with Another commenter urged VA to correct that the purpose of the subsequent regulatory language using revise proposed § 5.250 (f) ‘‘Special Regulation Rewrite Project is to make the word ‘‘disease’’. rules for establishing a stressor based on VA’s compensation and pension We agree with the commenter that it personal assault’’, to allow veterans regulations more logical, claimant- is appropriate to add ‘‘diseases’’ to the diagnosed with PTSD resulting from focused, and user-friendly, not to serve undesignated center heading; however, Military Sexual Trauma (MST) six as a vehicle for making major changes we would do so by inserting the word months to respond to a VA request for to VA policies. Thus, the comment is before the word ‘‘disabilities’’, rather more information about their stressor, outside the scope of this rulemaking. than by replacing that word. The rather than the 30 days under current proposed undesignated center heading § 5.251 Current Disabilities for Which was imprecise because it was under- VA practice pursuant to the Veterans VA Cannot Grant Service Connection. Claims Assistance Act (VCAA). The inclusive; however, to change the commenter asserted that, ‘‘Without When we initially proposed § 5.251 undesignated center heading by more time veterans with PTSD (see 75 FR 53744, Sept. 1, 2010), we replacing ‘‘disabilities’’ with ‘‘diseases’’ secondary to MST are unlikely to failed to state in the preamble that would also be under-inclusive because comply.’’ In support of this assertion, proposed 5.251(c) would be new. It to simply refer in our regulations to the commenter stated: would incorporate and expand upon 38 ‘‘diseases’’ may not adequately identify CFR 4.127, which states, ‘‘Mental to readers all of the medical conditions Veterans with PTSD as a result of MST often feel guilt or shame. Many of these retardation and personality disorders identified by the authorizing statutes. veterans have not shared with family and are not diseases or injuries for See, for example, 38 U.S.C. 1112 (titled friends that they were sexually assaulted in compensation purposes, and, except as ‘‘Presumptions relating to certain the military. If a veteran receives a VCAA provided in § 3.310(a) of this chapter, diseases and disabilities’’); 38 U.S.C.

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1112(b)(10) and (14) (providing benefits unless the presumption is sufficiently service connection allow veterans who for a ‘‘disorder’’ and a ‘‘syndrome’’); 38 rebutted. The commenter suggested two might not be able to establish direct U.S.C. 1117 (authorizing compensation definitions. The first is from Manning v. service connection to have their disease for ‘‘qualifying chronic disabilit[ies]’’); John Hancock Mut. Life Ins. Co., 100 service connected, it is misleading to and 38 CFR 3.309(c) (including as U.S. 693, 697–98 (1879), which held refer to them as liberalizations. The presumptively service connectable that the existence of a fact may be effect of a liberalizing law is provided ‘‘diseases’’, psychosis, anxiety states, presumed from the existence of other for in § 5.152, and we do not want dysthymic disorder, and organic proven facts, so long as the presumed § 5.260(a) to confuse that section with residuals of frostbite, which may not be fact has an immediate connection or the general law governing presumptions generally understood by the public as relation with the proven facts. The of service connection. ‘‘diseases’’). It is important that our second definition suggested by the In addition, we determined that in regulations clearly explain the various commenter is from ‘‘Black’s Law initially proposed § 5.260, we failed to conditions to which a presumption Dictionary’’, 1067 (5th ed. 1979), stating include the second sentence of 38 CFR applies, irrespective of whether current that a presumption is ‘‘a rule of law, 3.303(d), which states, ‘‘Presumptive medical authorities classify a particular statutory or judicial, by which finding of periods are not intended to limit service condition as a ‘‘disease’’, Referring to a basic fact gives rise to existence of connection to diseases so diagnosed ‘‘diseases, disabilities, and related presumed fact, until presumption is when the evidence warrants direct matters’’ in our undesignated rebutted.’’ service connection.’’ We propose to subheading will provide the most useful After review, we propose not to define restate this provision more clearly by information to VA personnel and the the term ‘‘presumption’’ in § 5.260(a). adding this sentence at the end of public. While both legal definitions of the term § 5.260(a), ‘‘VA will not use the Thus, we propose to revise both the ‘‘presumption’’ suggested by the existence of a presumptive period to undesignated center heading and the commenter are correct, we do not deny service connection for a regulations herein in accordance with believe that regulation readers will be presumptive disease diagnosed after the the above discussion. For example, in best served by a legal definition of the presumptive period if direct evidence § 5.261, we refer to ‘‘chronic diseases’’ term ‘‘presumption’’ in § 5.260(a). Since shows it was incurred or aggravated because that is the term the statute uses the legal definition of a presumption is during service.’’ and because the list comprises a clear concept in the law, it is not After reviewing initially proposed conditions that are commonly necessary to include such a definition to § 5.260(b)(1), we propose to remove the understood to be diseases. The sole aid the courts in interpreting the term parentheses from around the last exception might be a ‘‘brain ‘‘presumption’’. In addition, a legal sentence of the paragraph because they hemorrhage’’, but we do not believe that definition of ‘‘presumption’’ in are unnecessary. including that condition on the long list proposed § 5.260(a) would not well Initially proposed § 5.260(b)(2) of ‘‘chronic diseases’’ will create serve readers who may not be familiar discussed ‘‘competent lay evidence’’, confusion. On the other hand, in with legal jargon in such a definition. ‘‘lay evidence’’, and ‘‘medical § 5.267(b), we provide a ‘‘list [of] With respect to the commenter’s evidence’’. In § 5.1 we have defined diseases or injuries that VA will suggestion that VA must clarify that a ‘‘competent lay evidence’’ and consider associated with full-body presumption is a rule of law, we note ‘‘competent expert evidence’’ (which exposure to nitrogen mustard, sulfur that the mere existence of presumptions includes medical evidence). Our intent mustard, or Lewisite’’ because that list in both the statutes and in these in initially proposed paragraph (b)(2) contains several items that are more regulations makes clear that these was to refer to competent evidence. We commonly understood to be injuries, presumptions are in fact laws. With therefore propose to insert the word such as corneal opacities and scar respect to the legal effect of a competent before lay and medical formation. presumption, we have adequately throughout this paragraph. To ensure explained the effect of the presumptions consistency we propose to make these § 5.260 General Rules Governing of service connection in proposed same changes throughout part 5. Presumptions of Service Connection § 5.260(a). We propose to make a minor technical We propose to revise the heading of Another commenter suggested that change to the language of § 5.260(c). The § 5.260 from ‘‘General rules and VA adopt the final sentence of introductory text to § 5.260(c), as definitions’’ to ‘‘General rules governing § 3.303(d) as the first sentence of initially proposed, stated: ‘‘VA cannot presumptions of service connection.’’ § 5.260(a), as it is a clear and succinct grant service connection under this This title is more precise and more statement of the purpose of section when the presumption has been descriptive. presumptions. The final sentence of rebutted by the evidence of record.’’ 69 We received two comments regarding § 3.303(d) reads: ‘‘The presumptive FR 44624, July 27, 2004. We propose to § 5.260(a), a new provision that provisions of the statute and [VA] change the words ‘‘this section’’ in this describes the purpose of presumptions regulations implementing them are sentence to ‘‘§§ 5.261, 5.262, 5.264 of service connection. Both commenters intended as liberalizations applicable through 5.268, 5.270 and 5.271’’. agreed that the description of when the evidence would not warrant In addition, we propose to change presumptions and how they operate in service connection without their aid.’’ initially proposed § 5.260(c) based on § 5.260(a) is accurate. However, both We agree in part, and propose to add comments objecting to our decision not commenters suggested that VA add the following as the first sentence of to use the term ‘‘affirmative evidence’’ language to § 5.260(a) to clearly define § 5.260(a): ‘‘Presumptions of service in the description of what kind of the term ‘‘presumption’’. connection apply when the evidence evidence may be used to rebut a One commenter suggested would not warrant service connection presumption of service connection for a supplementing the explanation of how a without their aid.’’ We do not mean to disease. Specifically, in § 5.260(c)(2) we presumption operates with a legal include the characterization of the stated that ‘‘[a]ny evidence competent to definition of the term ‘‘presumption’’, in presumptions as liberalizations because indicate the time a disease existed or order to make clear that presumptions such a characterization is not helpful. started may rebut a presumption of are a rule of law that must be followed Although it is true that presumptions of service connection that would otherwise

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apply.’’ 69 FR 44614, July 27, 2004. revise § 5.260(c)(2) to state that ‘‘the In NPRM AM07, we changed Because 38 U.S.C. 1113(a) specifically absence of evidence may be a basis for ‘‘symptomatology’’ to ‘‘signs or requires ‘‘affirmative evidence’’ to rebut affirmative evidence. For example, a symptoms’’ consistent with current the ‘‘disease presumptions’’ set forth in medical professional may conclude that medical terminology. For consistency, chapter 11, title 38, United States Code, a disease or disability existed or started we propose to do the same in § 5.260 we propose to revise initially proposed at a particular time based on an absence and throughout part 5. In paragraph § 5.260(c) to require affirmative of evidence of signs or symptoms of the (b)(1), we propose to change evidence. In addition, we agree with condition before that time.’’ ‘‘symptomatology’’ to ‘‘signs or several commenters who defined One commenter objected to the symptoms’’. In (b)(2), we propose to affirmative evidence as evidence that statement in proposed § 5.260(c) which replace the phrase ‘‘physical findings declares a fact positively and establishes states that once a presumption has been and symptomatology’’ with ‘‘signs or that a particular disease does not rebutted, VA can no longer grant symptoms’’. The term ‘‘signs’’ is warrant the award of presumptive presumptive service connection. The equivalent to ‘‘physical findings’’. service-connection. We propose to commenter believes the statement is not Moreover, we intend this rule to include revise paragraph (c)(2) to define true in all cases, and suggests that if the mental as well as physical signs. ‘‘affirmative evidence’’ as ‘‘evidence veteran provides medical or lay In initially proposed paragraph (c)(2), that supports the existence of a evidence, it would be possible for the we stated, ‘‘For example, a medical particular fact,’’ and to further state that veteran to establish service connection professional may conclude that a affirmative evidence ‘‘does not mean the on a presumptive basis. As an example, disease or disability existed or started at mere absence of evidence.’’ the commenter proposes a situation a particular time based on an absence of However, some commenters asserted where VA reviews available medical evidence of symptoms of the that under no circumstances may VA records and finds the evidence rebuts condition.’’ We now propose to insert rebut a presumption based on the the presumption of service connection ‘‘signs or’’ before ‘‘symptoms’’. We also absence of evidence. A commenter because the veteran has not received a propose to insert ‘‘before that time’’ at stated that a medical opinion founded credible diagnosis of the disease for the end of the sentence to clarify when on the absence of symptoms is not which he or she is claiming an absence of signs or symptoms is ‘‘affirmative evidence’’. Similarly, presumptive service connection. The relevant. another commenter stated that a commenter proposes that if the veteran In initially proposed § 5.260(a) and (c) medical opinion used to rebut the later obtains a credible medical opinion we omitted reference to § 5.263, presumption of service connection for a diagnosing the veteran with the ‘‘Presumption of Service Connection for chronic disease may not be based on the presumptive disease, the veteran should Non-Hodgkin’s Lymphoma Based on length of time between service and be entitled to presumptive service Service in Vietnam’’. In reviewing the clinical manifestation of the disease, connection. presumption regulations to respond to because Congress chose a specific We propose not to make any changes comments, we have noted that there is period for the presumption of service based on this comment. In the no reason to exclude § 5.263 from these connection to apply for each disease. hypothetical situation posed by the provisions. We recognize that 38 CFR The commenter noted that in 38 U.S.C. commenter, the absence of a credible 3.313 contains no rebuttal provision but 1112(a)(2), Congress provided for a diagnosis of the claimed disease does we do not believe that an irrebuttable presumptive period of ‘‘one year from not serve to rebut the presumption of presumption would be consistent with the date of separation from such service, service connection. In that situation, the title 38 to the extent it would authorize or at a time when standard or accepted presumption never arose because the benefits for a disease shown by clear treatises indicate that the incubation existence of the claimed condition is evidence to be unrelated to service or to period thereof commenced during such one of the underlying facts necessary to be attributable to the veteran’s willful service.’’ According to the commenter, give rise to the presumption. If the misconduct. We therefore propose to because Congress did not provide this veteran subsequently presents evidence include § 5.263 in paragraphs (a) and alternative for chronic diseases, pure sufficient to prove that he or she did in (c). medical judgments cannot override the fact suffer from a disease for which VA § 5.261 Certain Chronic Diseases VA presumptive period allotted by may grant presumptive service Presumes Are Service Connected Congress. connection, then the presumption will We disagree with these comments in apply. In reviewing the initially proposed the following respect: To rebut a In any event, no scenario allows VA regulation, we noted that we included presumption that a presumptive disease to grant presumptive service connection the phrase, ‘‘from a qualifying period of was incurred during service or during after the evidence rebuts the service’’, in § 5.261(a)(1), but not in the post-service presumptive period, presumption. The commenter is correct § 5.261(a)(2). To ensure that readers are affirmative evidence would have to that if VA rebuts the presumption of aware that the presumptions apply only show that the disease did not exist at service connection for a disease, the after a period of qualifying service, we such time. A medical opinion that veteran is entitled to bring forth propose to revise § 5.261(a)(2) to include establishes the date of onset of the evidence supporting service connection. the phrase, ‘‘after a qualifying period of disease determined by the use of fact- However, service connection service’’. In § 5.261(a)(1), we propose to based medical evidence may serve as established in this manner is granted change the term, ‘‘a year’’ to ‘‘1 year’’ to ‘‘affirmative evidence’’ regarding the under 38 U.S.C. 1110 (generally referred ensure consistency throughout our onset or existence of that disease, even to as ‘‘direct’’ service connection) and is regulations. if the mere absence of symptoms or not presumptive service connection. If In initially proposed § 5.261(c), based other evidence of disease is not. In other the presumption of service connection on current §§ 3.307(a)(2) and 3.308(a), words, it is the medical professional’s is rebutted, a veteran may still establish we stated, ‘‘In claims based on service qualified opinion that serves as service connection by filing evidence ending before December 7, 1941, for evidence to be considered by VA’s showing the onset of the disease in purpose of determining whether a adjudicator, not the lack of evidence in service, or by any other method chronic disease manifested within a the claims file. Hence, we propose to provided by these regulations. presumptive period under this section,

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the date of separation from wartime ‘‘acute’’ and ‘‘transitory’’ both suggest to certain herbicide agents in proposed service will be the date of discharge or brief duration, so that ‘‘transitory’’ does §§ 5.261(d) and 5.262(e) is contrary to release during a war period, or if service not add to the meaning of the rule. For the holding of the U.S. Court of Appeals continued after the war, the end of the these reasons, we propose to make no for the Federal Circuit in Splane v. war period.’’ We have determined that changes based on this comment. West, 216 F.3d 1058 (Fed. Cir. 2000), this paragraph is erroneous because Initially proposed § 5.261(d) is based and otherwise not in accordance with veterans whose service ended before on § 3.307(b) and contains an exclusive 38 U.S.C. 1112(a) and 1116(a). The that date get no presumption of service list of the diseases VA considers chronic comments asserted that the statutes do connection for chronic disease. for purpose of presumptive service not limit the degree to which a pre- Therefore, there can be no ‘‘date of connection. One commenter stated that existing condition must be disabling separation from wartime service’’ for a this section would ‘‘authorize prior to entry in order for the pre-December 7, 1941 veteran ‘‘for the adjudicators to determine that a chronic presumption of aggravation to apply; purpose of determining whether a disease which has manifested to a that the statute does not provide that a chronic disease manifested within a compensable degree and which is under disease must ‘‘first’’ become manifest presumptive period.’’ We therefore consideration for service connection is during the presumptive period; and that propose to remove paragraph (c) and not chronic.’’ The commenter stated that 38 U.S.C. 1112(a) and 1116(a) should be redesignate the remaining paragraphs of VA has no lawful authority to make an interpreted to provide a presumption of § 5.261 accordingly. independent factual determination aggravation of the listed diseases if the One commenter suggested that VA contrary to the command of 38 U.S.C. degree of disability increases by any include a statement clarifying that the 1101(3), which lists chronic diseases for degree during the applicable chronic diseases listed in initially purposes of disability compensation. presumptive period (for example, from proposed § 5.261(d) (now (c)) are the However, 38 U.S.C. 1101(3) only 20 percent disabling to 30 percent only conditions that will be considered defines what are considered to be disabling). chronic. Currently, § 3.307(a) states that chronic diseases; it does not contain any Additionally, a commenter suggested no condition other than one listed in requirement that service connection be that the treatment of preexisting § 3.309(a) will be considered chronic. In granted for the listed diseases. The conditions under 38 U.S.C. 1112(a) and addition, 38 U.S.C. 1101(3) contains a requirement to grant presumptive 1116(a) conflicts with the treatment of list of chronic diseases and includes service connection for chronic diseases preexisting conditions under 38 U.S.C. ‘‘such other chronic diseases as the is found in 38 U.S.C. 1112(a), which 1153, the general presumption of Secretary may add to this list’’, which states that a chronic disease will be aggravation. Commenters asserted that strongly implies that the list should be considered to have been incurred in or VA could not arbitrarily apply different considered exclusive absent action by aggravated by such service. The rules to veterans who had preexisting the Secretary. The commenter believes authority to rebut a presumption of disabilities that were aggravated by that stating that the list of chronic service connection is found at 38 U.S.C. service than to veterans who had no diseases in § 5.261(d) is exclusive will 1113(a), which states that ‘‘where there preexisting disabilities. One commenter prevent any misconception that VA has is affirmative evidence to the contrary, suggested that the only difference is the the ability to establish presumptive or evidence to establish that intercurrent ‘‘formality’’ that the underlying service connection for any disease injury or disease . . . has been suffered pathology had its inception prior to which appears no later than 1 year after . . . service-connection . . . will not be service rather than during service. leaving service. The commenter in order.’’ The wording in initially By way of background, 38 U.S.C. 1153 concluded that nothing prevents VA proposed § 5.261(c) is a restatement of provides a presumption that ‘‘[a] from stating the list of chronic the previous wording used in § 3.307(b), preexisting injury or disease will be conditions in § 5.261(d) is exclusive. which states, ‘‘Unless the clinical considered to have been aggravated by We agree and propose to include the picture is clear otherwise, consideration active military . . . service, where there sentence, ‘‘Only conditions listed in this will be given as to whether an acute is an increase in disability during such section are chronic for purposes of this condition is an exacerbation of a service.’’ The presumptions at issue in section.’’ The commenter is correct that chronic disease.’’ As initially proposed, proposed §§ 5.261 and 5.262, however, only the conditions listed in § 5.261(d) § 5.261(d) restated this principle as, are based on 38 U.S.C. 1112(a) and will be considered chronic for purposes ‘‘Unless the clinical picture clearly 1116(a), which provide a presumption of presumptive service connection shows the condition was only acute, VA for conditions that manifest to a degree under § 5.261. will consider whether an acute of disability of 10 percent or more One commenter suggested that for condition was an exacerbation of a during a specified period of time after clarity, § 5.261(d) should use the words chronic disease.’’ Based on the service. ‘‘acute and transitory’’ instead of simply comment, we understand that the In the Splane case, the Federal Circuit using ‘‘acute’’. The commenter states proposed rule could be misunderstood examined whether the post-service that the ‘‘acute and transitory’’ language to authorize VA to treat a chronic presumptive period in 38 U.S.C. 1112(a) is ‘‘consistent with long-standing VA condition as if it were acute. Neither the could cover a preexisting condition. The parlance regarding how it adjudicates statute nor the current regulation Federal Circuit held that the words ‘‘or claims based on chronic conditions.’’ authorize such treatment, and we did aggravated by’’ in paragraph (a) required Although VA has previously used the not propose to create such authorization application of the presumption of term ‘‘acute and transitory’’ in in § 5.261(d). Hence, we propose to aggravation of a chronic disease to a decisions, it is not consistent with revise the sentence so that it more veteran whose chronic disease existed current VA terminology used in closely follows the language of the but was not compensable prior to adjudicating claims based on chronic current regulation. service, regardless of VA’s ‘‘not conditions. The word ‘‘transitory’’ is not We received four comments stating altogether unpersuasive’’ argument that found in any regulation in either part 3 that our proposed rule regarding the those words were a vestige of an earlier or part 4 of title 38 CFR. Nor is it found presumption of service connection for provision that was long ago rendered in ‘‘Dorland’s Illustrated Med. aggravation of certain chronic diseases obsolete. Splane, 216 F.3d at 1069. The Dictionary’’ (31st ed. 2007). Moreover, and diseases associated with exposure court found it ‘‘unreasonable to assume

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that Congress did not anticipate the for a disease that ‘‘worsens by 10 for service connection does not address possibility that a veteran, who had percent or more,’’ rather than one that this situation since that concerns direct nonsymptomatic M[ultiple] S[clerosis] ‘‘becom[es] manifest’’ to such a degree. service connection and not before service, might be exposed to such Finally, we note that most of the establishment of service connection aggravating conditions during service diseases that are considered chronic are through the use of the presumptions. that he would become disabled to a diseases that, had they been Additionally, if there is no current compensable degree after service.’’ Id. symptomatic prior to service, would disability, service connection cannot be Our proposed part 5 regulations have likely rendered the person established. Also, Congress in 38 U.S.C. specifically accounted for this ineligible for service. In fact, several of 1112, mandated that the disease must possibility by presuming that a chronic the conditions are so disabling that their manifest to a degree of 10 percent or disease or a disease associated with symptoms cannot even be rated as more disabling before VA may presume herbicide exposure is presumed to have merely 10 percent disabling. For service connection. A disease that is in been aggravated during service if the example, the first signs of multiple remission and is not manifest to a disease manifests to a compensable sclerosis are rated at 30 percent under degree of 10 percent or more disabling degree within the applicable 38 CFR 4.124a, Diagnostic Code 8018. It may not be service connected under the presumptive period. Proposed § 5.261(d) is unlikely that VA will receive claims presumptions of service connection stated that VA cannot presume service from persons who were compensably provisions. connection when the evidence shows disabled before service, and our § 5.262 Presumption of Service that the disease existed prior to military experience has not shown this to be a Connection for Diseases Associated service to a degree of 10 percent or more problem under the current regulations. With Exposure to Certain Herbicide disabling. Lastly, we note that the Splane court Agents Section 5.262(e) used nearly identical did not address the type of case language. We explained our rationale in described by the commenters: where a In our initially proposed regulations the NPRM, as follows: disability was already manifest to a on presumptions of service connection, we changed the wording found in The Federal Circuit held that the words ‘‘or degree of disability of 10 percent or more prior to service. The commenters §§ 3.307(a) and 3.317(c)(3), ‘‘. . . aggravated by’’ indicate that Congress meant [certain diseases] will be considered to section 1112(a) to apply to those situations urge VA to adopt an interpretation of 38 where multiple sclerosis predated entry into U.S.C. 1112 far beyond that which the have been incurred in or aggravated by the service and became disabling to a Splane court provided. For the reasons service . . .’’ to ‘‘VA will presume compensable degree within the presumptive stated above, we propose to make no service connection [for certain diseases] period following service. The ‘‘or aggravated changes based on these comments. . . .’’ We proposed this language in by’’ language also appears in 38 U.S.C. One commenter also had a comment several part 5 regulations: §§ 5.262(a)(2), 1116(a)(1)(B), which provides the authority 5.264(b) and (c), 5.265(a) and (d), for the presumptions based on herbicide related to the following sentence in the NPRM: 5.267(a), and 5.268(b). This attempt to exposure. Therefore, we propose to add use simpler language resulted in a language to clarify that presumptions may We note that if the condition preexisted technical error because under its apply to a listed disease that preexisted service to a degree of 10 percent, for example, authorizing statutes, VA service service but first became manifest to a degree and after service the condition was 20 connects disability or death, not injury of 10 percent or more within the presumptive percent disabling, the veteran may be able to period following service. establish service connection using the or disease per se. We therefore propose presumption of aggravation in 38 U.S.C. to correct these sections to reflect that 69 FR 44620, July 27, 2004. 1153. the diseases listed will be considered to Limiting §§ 5.261 and 5.262 have been incurred in or aggravated by presumptions to situations where the 69 FR 44620, July 27, 2004. service. condition was not manifest to a degree We received four comments regarding of 10 percent or more disabling before The commenter noted that 38 U.S.C. the proposed definition of ‘‘Service in service is not arbitrary, unfair, or 1153 only applies to increases in the Republic of Vietnam’’ in beyond VA’s statutory authority. Under disability during service. Therefore, this § 5.262(a)(1) for purposes of the 38 U.S.C. 1112(a)(1), VA must presume statement would not be correct with presumption of service connection for service connected ‘‘a chronic disease respect to increases in disability within diseases associated with exposure to becoming manifest to a degree of 10 the presumptive period. The commenter certain herbicide agents. As proposed, percent or more disabling within one is correct that 38 U.S.C. 1153 only § 5.262(a)(1) stated: year from the date of separation from applies to aggravation during service. For purposes of this section, ‘‘Service in . . . service,’’ and 38 U.S.C. 1116(a) We clarify this statement by noting that the Republic of Vietnam’’ does not include similarly creates a presumption based when we said ‘‘after service’’, we meant active military service in the waters offshore on manifestation of a disease to a degree immediately after service. and service in other locations, but does of 10 percent or more disabling within The commenter stated that in some include any such service in which the the presumptive period. Use of a 10 cases, VA would presume that a disease veteran had duty in or visited in the Republic percent threshold would not make sense in a state of remission or inactivity was of Vietnam, which includes service on the inland waterways. if a preexisting disease manifest to a disabling to a degree of 10 percent at degree of 10 percent or more disabling entry, while a draft rule for service 69 FR 44626, July 27, 2004. prior to service could trigger the connection indicates that VA would Three commenters objected to the presumption because the disease would deny service connection for lack of exclusion of service in the waters already have reached the threshold current disability if a disease was in offshore Vietnam in the definition of before service. If Congress had intended remission. The commenter objects to ‘‘Service in the Republic of Vietnam’’ to also presume aggravation for a this dual standard for cases when for purposes of § 5.262. One commenter veteran who already had a disease diseases are in remission. stated that when Congress refers to a manifest to a compensable degree prior We propose to make no changes based country by its name in a statute, it is to service, the law could have been on this comment. The provision the referring to the entire country, including written to presume service connection commenter discussed from the draft rule the entire area over which a country has

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sovereignty. This would, under the 1982 3.309(e). 75 FR 53202. Therefore, we disease or hypertensive vascular disease United Nations Convention on the Law now propose to include them in (including hypertensive heart disease) of the Sea, 21 I.L.M. 1261, include the § 5.262(e) in accordance with the and their complications (including territorial sea which extends up to Secretary’s finding. myocardial infarction, congestive heart twelve miles beyond the land territory We propose to change the term ‘‘acute failure, and arrhythmia) and stroke and of Vietnam. All three commenters and subacute peripheral neuropathy’’ in its complications to the diseases VA support this proposition with an § 5.262 and instead use the term ‘‘early- presumes are service connected in example of the service required to onset peripheral neuropathy’’. former prisoners of war. 71 FR 37793, receive the Vietnam Service Medal. Additionally, we have removed note June 30, 2006. No comments were Executive Order 11231, July 8, 1965, \1\ which provided that peripheral received concerning this addition. provides that the ‘‘Vietnam Service neuropathy must resolve within 2 years Proposed § 5.264 is revised from the Medal shall be awarded to members of of onset. This conforms to changes made version published in the NPRM, by the armed forces who serve in Vietnam in part 3. 78 FR 54763, Sept. 6, 2013. adding these conditions to the list of or contiguous waters or air space’’. The § 5.263 Presumption of Service diseases. 69 FR 44614, July 27, 2004. Section 106 of Public Law 110–389, commenters believe that the definition Connection for Non-Hodgkin’s 122 Stat. 4145, 4149 (2008), amended 38 of ‘‘Service in the Republic of Vietnam’’ Lymphoma Based on Service in Vietnam provided in § 5.262(a)(1) is contrary to U.S.C. 1112(b)(2) by adding a new the ordinary and common meaning of One commenter believed that subparagraph (F) that creates a the phrase. Therefore, the commenters proposed § 5.263, which was based on presumption of service connection for believe there is no reason to believe that § 3.313 with minor changes, was osteoporosis that becomes manifest to a Congress intended to exclude the unnecessary. Proposed § 5.263 provides degree of 10 percent for prisoners of war territorial sea when it drafted 38 U.S.C. for presumptive service connection for (POWs) if the Secretary determines that 1116. non-Hodgkin’s lymphoma based on the veteran has posttraumatic stress We propose to make no changes based service in Vietnam. The commenter disorder (PTSD). On August 28, 2009, on these comments. These comments asserted that anyone eligible for VA published an amendment in the are adequately addressed by Haas v. presumptive service connection under Federal Register to § 3.309(c), applying Peake, 425 F.3d 1168 (Fed. Cir. 2008); § 5.263 would also be eligible for Public Law 110–389. 74 FR 44288. This the notice proposing to rescind, and the presumptive service connection under amendment also implements a decision notice actually rescinding, the VA § 5.262 and it is therefore unnecessary by the Secretary to establish a manual provision cited in Haas, 72 FR to have § 5.263. presumption of service connection for 66218, Nov. 27, 2007 and 73 FR 20363– We propose to make no changes based osteoporosis that becomes manifest to a 65, Apr. 15, 2008; and the proposed on this comment. We agree with the degree of 10 percent for POWs if the revision to 38 CFR 3.307(a)(6)(iii), 73 FR commenter that many of the veterans veteran was interned for more than 30 20566–71, Apr. 16, 2008 (withdrawn by entitled to presumptive service days. This presumption is based on 74 FR 48689, Sept. 24, 2009). We connection under § 5.263 may also be scientific studies. These changes have incorporate by reference the rationales entitled to presumptive service been incorporated into proposed set forth therein, and do not reiterate connection under § 5.262. However, § 5.264(b) and (c). them here. there are differences between §§ 5.262 However, we do propose to revise and 5.263 that require two separate § 5.265 Tropical Diseases VA initially proposed § 5.262(a)(1) so that it rules. Therefore, we propose to retain Presumes Are Service Connected more clearly conveys the requirement § 5.263 in our final rule. One difference In initially proposed § 5.265(d), we that the veteran have served ‘‘on land, is in the definition of what constitutes stated, ‘‘For any disease service or on an inland waterway, in the ‘‘service in Vietnam’’. See VA General connected under this section, VA will Republic of Vietnam.’’ Counsel’s Opinion, VAOPGCPREC 27– also service connect the resultant On May 7, 2009, VA published Final 97, 62 FR 63604 (Dec. 1, 1997). disorders or diseases originating Rule RIN 2900–AN01, ‘‘Presumptive Specifically, the definition of ‘‘service because of therapy administered in Service Connection for Disease in Vietnam’’ in § 5.263 includes service connection with such a disease or as a Associated With Exposure to Certain in the waters offshore Vietnam, whereas preventative measure against such a Herbicide Agents: AL Amyloidosis’’, the definition in § 5.262 specifically disease.’’ We have determined that this which stated the Secretary’s excludes such service from the sentence is redundant of the basic rule determination of ‘‘a positive association definition of ‘‘service in the Republic of on secondary service connection between exposure to herbicide agents Vietnam’’. Another difference is that contained in § 5.246, ‘‘Secondary and the occurrence of AL amyloidosis’’ § 5.262 provides for determining service connection—disabilities that are and added that disease to 38 CFR presumptive exposure to herbicides due due to or the result of service-connected 3.309(e). 74 FR 21258. Therefore, we to service in the Republic of Vietnam injury or disease.’’ Therefore, we now propose to include AL amyloidosis while § 5.263 provides for service propose to remove this sentence from in § 5.262(e) in accordance with the connection for non-Hodgkin’s § 5.265(d). Secretary’s finding. lymphoma without regard to possible One commenter suggested a minor On August 31, 2010, VA published exposure to herbicides in the Republic clarifying change to § 5.265(e). The RIN 2900–AN54, ‘‘Diseases Associated of Vietnam. commenter suggested revising the With Exposure to Certain Herbicide sentence stating that ‘‘Residence during Agents (Hairy Cell Leukemia and Other § 5.264 Diseases VA Presumes Are the applicable presumptive period Chronic B-Cell Leukemias, Parkinson’s Service Connected in a Former Prisoner where the particular disease is endemic Disease and Ischemic Heart Disease)’’ of War may also be considered evidence to which stated the Secretary’s On June 30, 2006, VA published in rebut the presumption’’, to refer to determination of ‘‘a positive association the Federal Register an addition to ‘‘post-service’’ residence. The between exposure to herbicide agents § 5.264, ‘‘Diseases VA presumes are commenter recognized that this addition and the occurrence of those diseases’’ service connected in former prisoners of would be redundant (because the and added those diseases to 38 CFR war’’, adding atherosclerotic heart presumptive period is post-service), but

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opined that it would nevertheless make would contain the general definitions rather than presumptive service the rule clearer for the average lay that apply to all types of qualifying connection. person. We agree that, while redundant, chronic disabilities. The commenter is incorrect that VA this minor change could be beneficial to We propose to move initially grants direct service connection under readers. Therefore, we propose to proposed paragraph (a)(1)(ii), which § 3.316. Although the regulation text change § 5.265(e) to refer to ‘‘[p]ost- stated, ‘‘By history, physical does not explicitly state so, § 3.316 service residence’’. examination, and laboratory tests cannot grants presumptive service connection One commenter objected to the be attributed to any known clinical and not direct service connection. The requirement in § 5.265(f) that would diagnosis.’’ This paragraph would apply regulation presumes a medical nexus require a tropical disease to manifest to only to undiagnosed illnesses, not to between full-body exposure to mustard a degree of 10 percent or more disabling other qualifying chronic disabilities, so gas or Lewisite and the listed diseases, within the presumptive period in order we propose to move it into new thereby establishing a presumption as for the disease to be presumptively paragraph (b), which would describe described in § 5.260(a). service connected. The commenter undiagnosed illnesses. We also note that our authority to noted that the statutory authorization For purposes of accuracy, we propose create presumptions is explicitly set for this presumption, 38 U.S.C. 1133, to change the title of the regulation from forth in 38 U.S.C. 501(a)(1), under provides no minimum degree of ‘‘Compensation for certain disabilities which the Secretary may prescribe manifestation for the presumption of due to undiagnosed illnesses’’ to ‘‘regulations with respect to the nature service connection to apply for veterans ‘‘Disability compensation for certain and extent of proof and evidence . . . in with peacetime service before January 1, qualifying chronic disabilities’’. order to establish the right to benefits’’. 1947. The commenter is correct. We Since publication of the AL70 NPRM, As we noted in the preamble to the propose to revise § 5.265(f) so that it no VA published a Final Rule VA that NPRM, the Secretary exercised this longer contains the 10 percent made technical revisions to 38 CFR authority when he first promulgated requirement. 3.317 to clarify that adjudicators have § 3.316. 69 FR 44614, July 27, 2004. Moreover, we discovered that we the authority to determine whether We propose to revise the sentence mistakenly used the term ‘‘existed’’, diseases in addition to the three listed preceding the table in § 5.267(b) so it is rather than ‘‘manifested’’, in initially in 38 U.S.C. 1117 qualify as medically a complete sentence instead of a phrase proposed § 5.265(f). This language was unexplained chronic multisymptom and so it is consistent with other table taken from 38 CFR 3.308(b), but it does illnesses in addition to the three that are introductions used in this regulation. not appear in any other presumption listed in 38 U.S.C. 1117. 75 FR 61995, We also propose to change ‘‘condition’’ regulation in part 5. Therefore, in order Oct. 7, 2010. VA subsequently in paragraph (a)(2) to ‘‘injury or disease’’ to ensure consistency with the other published a final rule that replaced to be consistent with paragraph (b). In presumption regulations in part 5, we ‘‘irritable bowel syndrome’’ with the table, we propose to change ‘‘disease propose to replace ‘‘existed’’ with ‘‘functional gastrointestinal disorders’’. or disability’’ to ‘‘injury or disease’’ for ‘‘manifested’’. 76 FR 41696, Jul. 15, 2011. We propose the same reason. We also propose to change the term to incorporate these regulatory ‘‘accepted medical treatises’’ to amendments into § 5.266. § 5.268 Presumption of Service ‘‘accepted medical literature’’ Current 38 CFR 3.317(c) describes Connection for Diseases Associated throughout this section because situations in which the presumptions in With Exposure to Ionizing Radiation ‘‘treatise’’ is a specific type of scholarly that section will be considered rebutted. In initially proposed § 5.268 we literature, specifically ‘‘a systematic We note that § 3.307(d) (the basis for inadvertently failed to include the exposition or argument in writing initially proposed § 5.260(c)) already provisions of current 38 CFR including methodical discussion of the contains this same rebuttal information 3.309(d)(3)(ii)(E). We propose to correct facts and principles involved and as it applies to the various presumptions this omission by inserting § 5.268(c)(6), conclusions reached.’’ ‘‘Merriam- listed in § 3.309, but not to § 3.317. We which is virtually identical to current Webster’s Collegiate Dictionary’’ 1258 now propose to expand the scope of § 3.309(d)(3)(ii)(E). (10th ed. 1998). ‘‘Accepted medical § 5.260(c) to include § 5.266 and 5.271. § 5.269 Direct Service Connection for literature’’ is a broader class of To avoid duplication, we propose to Diseases Associated With Exposure to literature, sufficiently authoritative and exclude the duplicate provisions from Ionizing Radiation more accessible to claimants than are § 5.266 and 5.271. ‘‘treatises’’. We propose to make the In reviewing the comment received § 5.267 Presumption of Service same change in § 5.266, Disability regarding this section, we have Connection for Conditions Associated compensation for certain qualifying determined that both 38 CFR 3.311 and With Full-Body Exposure to Nitrogen chronic disabilities. initially proposed § 5.269 use several Mustard, Sulfur Mustard, or Lewisite different terms interchangeably or § 5.266 Disability Compensation for One commenter asserted that the inconsistently. For example they refer to Certain Qualifying Chronic Disabilities proposed rule would have changed the dose estimates as ‘‘dose assessments,’’ We propose to reorganize and make current rule, § 3.316, which the ‘‘dose information,’’ and ‘‘dose data’’. technical corrections to initially commenter said requires direct service We propose to remedy this problem by proposed § 5.266. We would reorganize connection for exposure to mustard gas using the phrase ‘‘dose assessment’’ this section as follows. Initially and Lewisite, to a rule that would throughout § 5.269. proposed paragraph (a) stated that VA establish presumptive service In initially proposed § 5.269(c)(3), we will compensate veterans for a connection based on such exposure. The stated, ‘‘Neither the veteran nor the qualifying chronic disability and commenter questioned whether VA has veteran’s survivors may be required to defined that term. Initially proposed the authority to create a new class of produce evidence substantiating paragraphs (b) and (c) defined presumptive conditions. The exposure if the information in the undiagnosed illness and medically commenter stated that the wording of veteran’s service records or other unexplained chronic multisymptom proposed § 5.267(a) should be amended records maintained by the Department illness, respectively. Paragraph (f) to provide for direct service connection, of Defense is consistent with the claim

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that the veteran was present where and Defense (DoD) in these cases. This is § 5.270 Presumption of Service when the claimed exposure occurred.’’ because if DoD lacked records adequate Connection for Amyotrophic Lateral Current § 3.311(a)(4) actually limits the to permit the Under Secretary for Health Sclerosis scope of this provision to only ‘‘cases to prepare a dose assessment, then Since publication of the AL70 NPRM, described in paragraph (a)(2)(i) and (ii) presumably DoD would likewise be VA published a Final Rule creating a of this section’’ (those involving unable to do so. For this reason, we presumption of service connection for atmospheric nuclear weapons test propose to remove this provision. amyotrophic lateral sclerosis, which participation and Hiroshima and In initially proposed paragraph (f), was codified as 38 CFR 3.318. 73 FR Nagasaki occupation). We inadvertently now redesignated as paragraph (g), we 54693, Sept. 23, 2008. We propose to omitted this scope limitation in the stated, ‘‘With regard to any issue add the text of § 3.318 as new § 5.270, initially proposed rule and we not material to consideration of a claim, the with one revision: rather than restate the propose to insert it in § 5.269(c)(3). provisions of § 3.102 of this title apply rebuttal standards already contained in In initially proposed § 5.269(b), we (any reasonable doubt on any issue will omitted, without explanation, a number § 5.260(c), we simply referenced that be resolved in favor of the claimant).’’ paragraph. of cancers listed in current 38 CFR In proposed § 5.3, we state, ‘‘When the 3.311(b)(2): thyroid cancer; breast evidence is in equipoise regarding a § 5.271 Presumption of Service cancer; lung cancer; liver cancer; skin particular fact or issue, VA will give the Connection for Infectious Diseases cancer; esophageal cancer; stomach benefit of the doubt to the claimant and Since publication of the AL70 NPRM, cancer; colon cancer; pancreatic cancer; the fact or issue will be resolved in the kidney cancer; urinary bladder cancer; VA published a final rule creating claimant’s favor.’’ Since this provision presumptions of service connection for salivary gland cancer; multiple applies to all VA claims, there is no myeloma; ovarian cancer; cancer of the nine infectious diseases, which was need to repeat it in this paragraph and codified as 38 CFR 3.317.75 FR 59968, rectum; and prostate cancer. We omitted so we propose to remove it. these because they are subsumed within Sept. 29, 2010. Infectious diseases are We received one comment stating that not actually within the definition of the meaning of the phrase, ‘‘Cancer (any part of initially proposed § 5.269(g), other not listed)’’ in initially proposed ‘‘qualifying chronic disability,’’ which is now redesignated as paragraph (h), is the purported subject of the regulation. paragraph (b)(2) (based on the phrase, unnecessary. The commenter believes ‘‘Any other cancer’’ in current Removing those provisions to a separate that there is no danger of service section will make the rules easier to § 3.311(b)(2)(xxiv)). We provide this connection being established for a explanation now, to assure the public comprehend and follow. We propose to disease due to radiation exposure if the incorporate these regulatory that the fact that these cancers are not disease is due to the abuse of alcohol or specifically referenced in the part 5 rule amendments into § 5.271. drugs. The commenter believes that does not represent VA’s intent to alter since § 5.269 requires competent Omission of § 3.379, Anterior the applicability of the presumption that evidence and a decision by the Under Poliomyelitis, From Part 5 the diseases in some cases were caused Secretary of Benefits that it is at least as by exposure to ionizing radiation. We received two comments relating to In initially proposed paragraph likely as not that the veteran’s disease the initial proposal in the NPRM not to (c)(5)(iii) (now redesignated as resulted from ionizing radiation in repeat § 3.379 in part 5. This section (d)(2)(iii)) we referred to an estimated service, a disease due to the abuse of concerned service connection of the dose of ‘‘zero rem gamma’’. The word alcohol or drugs could not possibly be disease anterior poliomyelitis. One ‘‘gamma’’ is not in § 3.311 and we service connected under § 5.269. commenter agreed with the proposal. propose to remove it because it would We agree that the language regarding Another commenter disagreed with both improperly narrow the scope of this abuse of alcohol or drugs is unnecessary the proposal and VA’s rationale for paragraph. in § 5.269(h) and propose to remove it. removing it. In initially proposed paragraph (d)(1) Section 5.662, ‘‘Alcohol and drug We proposed not to include § 3.379 (now redesignated as paragraph abuse’’, already bars an award of service because it is unnecessary in light of the (c)(1)(iii)), we stated, ‘‘If neither the connection for disabilities resulting operation of proposed § 5.261 regarding Department of Defense nor any other from such abuse. For the same reason, the presumption of service connection source provides VA with records we propose to remove such language for chronic diseases. 69 FR 44623, July adequate to permit the Under Secretary from § 5.266(c)(3). 27, 2004. Congress specified myelitis as to prepare a dose estimate, then VA will In initially proposed § 5.269(g), now a chronic disease under 38 U.S.C. ask the Department of Defense to redesignated as paragraph (h), we 1101(3), and anterior poliomyelitis is a provide a dose estimate.’’ We stated in referred to ‘‘a supervening, nonservice- subcategory of myelitis. The general the preamble that this provision would related condition or event [that] is more rules of presumptive service connection reflect the fact that it is impossible to likely the cause of the disease’’ but for chronic diseases under § 5.261 estimate the likelihood that ionizing failed to say more likely than what. We would apply to anterior poliomyelitis radiation exposure caused a claimed propose to clarify this by adding ‘‘than and any veteran who would be service condition in the absence of a numerical was exposure to ionizing radiation in connected under § 3.379 would also be ionizing radiation dose estimate and service’’ so that the sentence will read: service connected under § 5.261. that VA would be unable to prepare a ‘‘In no case will service connection be Therefore, we concluded that § 3.379 dose estimate if it has not received any established if evidence establishes that was unnecessary and we proposed not records on which to base such an a supervening condition or event to include it in part 5. We propose to estimate. unrelated to service is more likely the make no changes based on these Upon review of this provision, we cause of the disease than was exposure comments. have determined that it does not to ionizing radiation in service.’’ One commenter stated that it is not accurately reflect VA’s procedures in In addition to the changes described proper to apply the general presumption such cases. Moreover, it would be above, we also propose to make minor of service connection to poliomyelitis impracticable to request dose changes in format and wording for without taking into account the known assessments from the Department of clarity and readability. medical facts, specifically, that

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poliomyelitis is a disease for which the connection for myelitis as a chronic Colayong v. West, 12 Vet. App. 524, exact cause and date of onset can be disease. However, the Centers for 536–37 (1999) and Young v. Shinseki, ascertained. Disease Control and Prevention reports 22 Vet. App. 461, 470 (2009), which The commenter also detailed the three that all forms of poliomyelitis have an state that whether or not the VSC has, possible outcomes of a poliomyelitis incubation period of 3 to 35 days, so a in the first instance, found the schedular infection. First, there is nonparalytic fact-based medical opinion would be rating to be inadequate, if it is poliomyelitis, which is an acute illness, needed to establish the approximate inadequate it must be referred for an which resolves with no chronic or date of onset. Poliomyelitis, Centers for extra-schedular rating. permanently disabling residuals. Disease Control and Prevention 232, We note that the language of initially Nonparalytic poliomyelitis may Poliomyelitis, http://www.cdc.gov/ proposed 5.280(b)(1) was not properly be denied service connection vaccines/pubs/pinkbook/downloads/ substantively different from current on that basis. Second, there is paralytic polio.pdf, last viewed Sept. 15, 2009. § 3.321(b)(1), the regulation which was poliomyelitis. The commenter notes that the basis for the courts’ rulings in the date of the antecedent illness for Technical Corrections Colayong and Young. Those cases left paralytic poliomyelitis is crucial. If it One commenter noted that in one part undisturbed the requirement in occurs no later than 35 days after of the NPRM preamble, we ‘‘reserved’’ § 3.321(b)(1) that extra-schedular review separation from service, it must have § 5.263, but elsewhere in the NPRM we may be undertaken by the Under occurred in service, but if it occurs more proposed to repeat § 3.313 as § 5.263. Secretary for Benefits or the Director, than 35 days after separation from The commenter felt that this was Compensation and Pension Service, service, it must have occurred after confusing. This was an error that we only ‘‘upon field station submission’’. service (therefore rebutting the now propose to correct. We propose to Rather, those cases held that the Board presumption of service connection). create a new § 5.263 that has the same of Veterans’ Appeals (Board) must Finally, there is paralytic poliomyelitis wording as § 3.313, except for the adjudicate the issue of entitlement to an without apparent antecedent illness. In changes discussed in the preamble of extraschedular evaluation, if the issue is this case, it is a matter for medical the NPRM. We have corrected this in raised by the evidence of record or by determination and opinion as to the this proposed rule. the appellant. We do not believe it is necessary to most probable date of exposure. If the C. Rating Service-Connected Disabilities medical evidence is inconclusive, then incorporate this line of cases into part the presumption of service connection § 5.280 General Rating Principles 5. Since the Colayong case was decided for myelitis should apply. Initially proposed § 5.280(b)(1), based in 1999, the Board has been under the We propose to make no changes based on 38 CFR 3.321, stated that for extra- duty set out by the court and the Board’s on this comment. The general rule for schedular ratings in unusual cases that Veterans Law Judges are now well presumption of service connection for to accord justice to the exceptional case aware of this duty. Moreover, it would chronic diseases in § 5.261 would where the Veterans Service Center be outside the scope of part 5 to impose provide accurate results for all the (VSC) finds the schedular ratings to be a duty on the Board via a part 5 situations the commenter described, inadequate, the Under Secretary for regulation. We therefore propose to including rebuttal by medical evidence Benefits or the Director of the make no change based on this comment. of the type the commenter described. Compensation and Pension Service, In reviewing proposed § 5.280 to First, regarding nonparalytic upon VSC submission, is authorized to respond to this comment, we have noted poliomyelitis, because this disease approve an extraschedular rating that it contains language (substantively cannot possibly be 10 percent or more commensurate with the average the same as § 3.321(b)) that might disabling, the presumption of service impairment of earning capacity due confuse a reader. Specifically, proposed connection under § 5.261 cannot apply exclusively to the service-connected § 5.280(b)(1) stated, ‘‘To accord justice in these cases. disability or disabilities. Paragraph to the exceptional case where the [VA] Second, regarding paralytic (b)(1) also stated that the governing finds the schedular ratings to be poliomyelitis, direct service connection norm in these exceptional cases is a inadequate, the [VA] is authorized to may be established in the majority of finding that the application of the approve on the basis of the criteria set cases based on medical knowledge that regular schedular standards is forth in this paragraph (b) an extra- the illness occurs no later than 35 days impractical because the case presents an schedular rating commensurate with the after exposure. Where direct service exceptional or unusual disability average impairment of earning capacity connection is denied based on the fact picture with such related factors as due exclusively to the service-connected that the illness occurred more than 35 marked interference with employment, disability or disabilities.’’ The use of the days after separation from service, the or frequent periods of hospitalization. plural ‘‘disabilities’’ might be presumption of § 5.261 will be One commenter suggested that to misconstrued as allowing VA to approve considered. However, the presumption avoid injustice in a case where the VSC an extra-schedular rating based partly of service connection will be rebutted improperly fails to find that the on a disability for which the schedular under the provisions of § 5.260(c)(1)(iii) schedular rating is inadequate, VA rating is inadequate and partly on a because there will be a preponderance should revise § 5.280(b)(1) to read: disability for which the schedular rating of evidence (based on fact-based is adequate, or to suggest that under medical evidence and the date To accord justice to the exceptional case, § 5.280 VA must consider the combined the Under Secretary for Benefits or the symptoms first occurred) establishing Director of the Compensation and Pension effect of multiple disabilities in that the disease was not incurred in Service, is authorized to approve on the basis determining whether an extra-schedular service. of the criteria set forth in this paragraph, an award is appropriate. Finally, with respect to paralytic extra-schedular rating commensurate with VA never intended that § 3.321, nor poliomyelitis without apparent the average impairment of earning capacity initially proposed § 5.280, apply in antecedent illness as described by the due exclusively to the service-connected either of those ways but rather that they commenter, where direct service disability or disabilities. be applied individually to each specific connection is not in order, VA will The commenter asserted that this disability being evaluated. Therefore, consider the presumption of service suggested language is consistent with we propose to use only the singular

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form of ‘‘disability’’, and to replace the focused, and user-friendly, not to serve 5.304 Exclusions From Income— word ‘‘case’’ with ‘‘disability’’ in the as a vehicle for making major changes Parent’s Dependency second sentence of § 5.280(b)(1), to to VA policies. Thus, the comment is Following publication of proposed clarify this point. We also propose outside the scope of this rulemaking. § 5.304 in AM07, VA published a several other, non-substantive changes § 5.283 Total and Permanent Total rulemaking to implement the to improve readability of paragraph Ratings and Unemployability ‘‘Caregivers’’ provisions of Public Law (b)(1). 111–163. 76 FR 26148 (May 5, 2011). As Initially proposed § 5.283(b) stated § 5.281 Multiple 0 Percent Service- we stated in the preamble, ‘‘The stipend that, ‘‘VA will consider a total disability Connected Disabilities payments to Primary Family Caregivers to be permanent when an impairment of under 38 U.S.C. 1720G(a)(3)(A)(ii)(V) Initially proposed § 5.281 stated: mind or body, that makes it impossible constitute ‘payments [of benefits] made VA may assign a 10 percent combined for the average person to follow a to, or on account of, a beneficiary’ that rating to a veteran with two or more substantially gainful occupation, is are exempt from taxation under 38 permanent service-connected disabilities that reasonably certain to continue U.S.C. 5301(a)(1). VA does not intend are each rated as 0 percent disabling under throughout the life of the disabled that the stipend replace career the Schedule for Rating Disabilities in part 4 person.’’ earnings.’’ Consistent with that of this chapter, if the combined effect of such One commenter asserted that it is disabilities interferes with normal interpretation, we believe that this employability. VA cannot assign this 10 inconsistent for VA to provide that total stipend should not be counted as percent rating if the veteran has any other disability is permanent only if it is income when determining parental compensable rating. reasonably certain to continue dependency. We therefore propose to throughout the lifetime of the veteran One commenter suggested that for add this exclusion as § 5.304(l) and when the Social Security clarity, the second word in this section redesignate previous paragraph (l) as Administration considers a total should be changed from ‘‘may’’ to paragraph (m). disability to be permanent if it is likely ‘‘shall’’ to emphasize the mandatory C. Special Ratings AL88 to continue for 1 year or lead to death. nature of assigning the combined rating. The commenter asserted that veterans In a document published in the We agree with this suggestion but we should not have a higher threshold for Federal Register on October 17, 2008, use ‘‘will’’ instead of ‘‘shall’’ throughout permanency than Social Security we proposed to revise Department of part 5 because the former is easier for Disability recipients. Veterans Affairs (VA) regulations the public to understand. We therefore The purpose of the Regulation governing special ratings, to be propose to change ‘‘may’’ to ‘‘will’’ in published in new 38 CFR part 5. 73 FR § 5.281. Rewrite Project is to make VA’s compensation and pension regulations 62004. We provided a 60-day comment § 5.282 Special Consideration for more logical, claimant-focused, and period, which ended December 16, Paired Organs and Extremities user-friendly, not to serve as a vehicle 2008. We received a submission from one commenter. Initially proposed § 5.282(c) stated for making major changes to VA that, ‘‘If a veteran receives money or policies. Thus, the comment is outside § 5.320 Determining Need for Regular property of value in a judgment, the scope of this rulemaking. Aid and Attendance settlement, or compromise from a cause § 5.300 Establishing Dependency of a Current 38 CFR 3.352(c) states, ‘‘The of action for a qualifying nonservice- Parent performance of the necessary aid and connected disability involving an organ attendance service by a relative of the In initially proposed § 5.300(b)(2)(ii), or extremity described in paragraph (b) beneficiary or other member of his or of this section, VA will offset the value we stated, ‘‘Net worth of a minor family her household will not prevent the of such judgment, settlement, or member will be considered income of granting of the additional allowance.’’ compromise against the increased the parent only if it is actually available Initially proposed § 5.320(a) disability compensation payable under to the veteran’s parent for the minor’s inadvertently omitted this paragraph. this section.’’ support.’’ This statement was erroneous We therefore propose to insert this One commenter suggested that and inconsistent with § 3.250(b)(2). In provision, phrased in a clearer way, into because the VA Schedule for Rating fact, a minor’s net worth is not § 5.320(a). Disabilities does not provide considered income. Rather it is The commenter noted that initially compensation for non-economic loss, considered as a separate matter from proposed § 5.320(b) differs from current such as pain and suffering and loss of income. We therefore propose to revise § 3.352(a), from which it derives. The enjoyment of life, initially proposed paragraph (b)(2)(ii) to read, ‘‘Net worth current rule defines ‘‘bedridden’’ as § 5.282(c)(2) should calculate the offset of a minor family member will be ‘‘that condition which, through its of damages by first reducing the total considered in determining dependency essential character, actually requires amount recovered as damages by the of a parent only if it is actually available that the claimant remain in bed.’’ The amount received for pain and suffering to the veteran’s parent for the minor’s initially proposed rule defined and loss of enjoyment of life. The support.’’ bedridden as requiring that the claimant commenter also suggested that the In initially proposed § 5.300 we also ‘‘must remain in bed due to his or her amount paid for attorney fees and failed to address a minor’s income. We disability or disabilities based on expenses for that recovery should be therefore propose to add a new medical necessity and not based on a subtracted from the total amount paragraph (b)(1)(iii) which states, prescription of bed rest for purposes of recovered as damages. ‘‘Income of a minor family member from convalescence or cure.’’ The commenter The relevant statute, 38 U.S.C. 1151 business or property will be considered asserted that the change of language does not allow VA to reduce the offset income of the parent only if it is ‘‘may eliminate the possibility of using for any reason. Moreover, the purpose of actually available to the veteran’s parent proof by lay testimony that remaining in the Regulation Rewrite Project is to for the minor’s support.’’ This is merely bed is required.’’ make VA’s compensation and pension a plain language restatement of the The need for aid and assistance or regulations more logical, claimant- § 3.250(b)(2) provision quoted above. confinement to bed may be shown by

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medical treatment records, medical permanently bedridden is significant visual field to 5 degrees or less.’’ The opinions, and competent non-medical because such a veteran’s special proposed rule specified the bilateral evidence based on personal monthly compensation (SMC) will not requirement, which VA has long observations. However, the relationship be reduced based on hospitalization, as implemented, as we explained in the between service-connected disability we explained in the preamble to the notice of proposed rulemaking (NPRM). and need for aid and attendance or initially proposed rule. See 73 FR We explained that VA had long used confinement to bed as a result of a 62011, Oct. 17, 2008; see also proposed these objective vision criteria to satisfy service-connected disability must be § 5.724, ‘‘Payments and Adjustments to the regulatory criteria of ‘‘blind or so shown by medical treatment records Payments’’, 73 FR 65212, Oct. 31, 2008. nearly blind’’. See 38 U.S.C. 1115(1)(E). and medical opinions. The only statute that requires payment Noting that the VA Schedule for Rating VA will always accept and consider of SMC based on the ‘‘permanently Disabilities provides only a 30 percent lay evidence, even if such evidence bedridden’’ criterion is 38 U.S.C. disability rating for unilateral concentric cannot be dispositive of a particular 1114(l). Therefore, we have added a contraction of the visual field to 5 factual issue. The consideration of lay cross reference to § 5.324, the regulation degrees and a rating of 100 percent for evidence in the context of a that implements section 1114(l). This bilateral concentric contraction to that determination on whether a person is change will not affect entitlement, degree, we explained that unilateral bedridden is no different that the because even a person who is contraction could not be considered ‘‘so consideration of lay evidence on the temporarily bedridden will qualify for nearly blind as to support a need for aid context of any other factual SMC under section 1114(l) (because and attendance’’. We further noted that, determination. Therefore, we propose such a person needs regular aid and although the rating schedule applies to not to include an instruction regarding attendance). The change is intended to ratings for veterans, there is no rational lay evidence. improve clarity in terms of the potential basis not to apply the same criteria for However, the comment revealed that for a reduction based on hospitalization. veterans’ spouses in considering the the initially proposed rule was unclear Initially proposed § 5.320(b) omitted proper standards for determining the about the meaning of the term the sentence from current § 3.352(a) that need for aid and attendance. ‘‘bedridden’’. Current § 3.352(a) states, states, ‘‘It is not required that all of the The commenter asserts that there is a ‘‘The fact that . . . a physician has disabling conditions enumerated in this rational basis to construe the visual prescribed rest in bed for the greater or paragraph be found to exist before a impairment criteria of the need for lesser part of the day to promote favorable rating may be made.’’ regular aid and attendance differently convalescence or cure will not suffice’’ However, we failed to explain that for the spouse of a 30 percent disabled to establish bedridden status. The gist of omission in our preamble. We note that veteran than for a veteran seeking this qualification is to distinguish the initially proposed 5.320(a) already disability compensation for visual need to stay in bed unremittingly from provided for aid and attendance if the impairment. The commenter stated: a need to be in bed intermittently. It is claimant meets ‘‘any or all’’ of the listed the intermittency that distinguishes criteria. Therefore this sentence was To the contrary, the criterion for granting being in bed ‘‘for the greater or lesser a veteran, who already has a 30% disability, unnecessary and we propose not to additional benefits because of having a part of the day’’ from being bedridden, include it in § 5.320. spouse with a serious visual impairment not that convalescence or cure is the should be more relaxed than the standard for reason. If a doctor forbids a person to § 5.321 Additional Disability Compensation for a Veteran Whose rating the veteran’s own visual impairment. leave bed because of the person’s It follows that even a spouse with a unilateral medical condition, the person would be Spouse Needs Regular Aid and concentric contraction of the visual field to bedridden, whether the prescribed Attendance 5 degrees or less would necessarily require confinement was for convalescence, At the end of initially proposed regular aid and attendance which would be cure, or other reason. We propose to paragraph (a), we propose to add a an additional financial burden on a veteran who is 30% disabled. revise § 5.320(b) to preserve this point, notation that the term ‘‘aid and consistent with § 3.352(a), by stating attendance’’ used in that paragraph is We disagree with the commenter for that the person who is bedridden ‘‘must ‘‘defined in paragraphs (b) and (c) of two reasons. First, the aid and remain in bed due to his or her this section.’’ The notation is needed to attendance criterion of ‘‘blind, or so disability or disabilities based on ensure that a reader does not think that nearly blind’’ is established by statute. medical necessity and not based on a the term means only the generally 38 U.S.C. 1115(1)(E)(ii). VA would prescription of periods of intermittent applicable definition set forth in exceed its authority to ‘‘relax’’ the bed rest.’’ Because the reason for the proposed § 5.320. statutory standard for finding the prescribed confinement is irrelevant, we The commenter addressed the visual veteran’s spouse in need of regular aid propose to remove the phrase ‘‘for impairment criteria of automatic and attendance. As we explained in the purposes of convalescence or cure’’. eligibility for regular aid and initial NPRM, by reference to the VA The initially proposed rule required attendance. Initially proposed § 5.321(b) Schedule for Rating Disabilities, a that, ‘‘The individual is temporarily or provided that the spouse of a veteran person with unilateral concentric permanently bedridden. . . .’’ A person who is 30 percent disabled is contraction of the visual field to 5 who is permanently bedridden logically automatically considered in need of degrees or less ‘‘cannot rationally be meets the requirement that he or she is regular aid and attendance if the considered ‘so nearly blind’ as to need temporarily bedridden. Because being spouse’s visual impairment meets one of regular aid and attendance.’’ Section either temporarily or permanently two criteria: ‘‘(1) The spouse has 5.321(b) states an objective measure of bedridden satisfies the requirement of corrected visual acuity of 5/200 or less vision that VA considers ‘‘so nearly § 5.320(b), there is no need to qualify in both eyes; [or] (2) The spouse has blind’’ as to need regular aid and ‘‘bedridden’’ as either temporarily or concentric contraction of the visual field attendance without further inquiry. It permanently. We therefore propose to to 5 degrees or less in both eyes’’. confers the benefit of automatic remove the phrase ‘‘temporarily or Section 3.351(c)(1), from which eligibility without burdening the permanently’’ before ‘‘bedridden’’. proposed § 5.321(b)(2) derives, states, veteran to prove some other way that his However, a finding that a veteran is ‘‘. . . or concentric contraction of the or her spouse is ‘‘blind, or so nearly

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blind’’ as to need regular aid and revise initially proposed §§ 5.322, revised, the sentence will read: ‘‘The attendance. Section 5.321(b) does not 5.325–5.330, and 5.334 to conform to additional allowance for regular aid and deprive the veteran of the ability to this new statutory language. attendance or a higher level of care establish need for aid and attendance by In the NPRM, we identified many provided by 38 U.S.C. 1114(r) is not other means. This is because § 5.321(c) disabilities in those sections as ‘‘service subject to the limitations of paragraph provides for proof of entitlement with connected’’. Given that service- (b) of this section regarding maximum any evidence that shows the veteran’s connected disability is a requirement for monthly disability compensation spouse in fact needs regular aid and all SMC benefits (except as specifically payable under 38 U.S.C. 1114(k) in attendance, even, possibly, with provided in certain sections), we have combination with other rates.’’ evidence of visual impairment that is determined that it is unnecessary to § 5.324 Special Monthly Compensation much less than the impairment that specify each disability as service Under 38 U.S.C. 1114(l) automatically establishes a need for connected throughout those sections. regular aid and attendance. We have therefore removed the modifier The commenter asserted that as Second, we disagree that because a ‘‘service-connected’’ throughout initially proposed, § 5.324(d) violated veteran is 30 percent disabled the §§ 5.321 and 5.323–5.333, except where the ‘‘benefit of the doubt’’ rule of 38 veteran’s spouse would necessarily necessary to distinguish the service- U.S.C. 5107(b) by defining require regular aid and attendance with connected disability from a nonservice- ‘‘permanently bedridden’’ as unilateral concentric contraction of the connected disability. ‘‘reasonably certain that the visual field to 5 degrees or less, or, by confinement to bed will continue § 5.323 Special Monthly Compensation implication, with less impairment than throughout his or her lifetime.’’ The Under 38 U.S.C. 1114(k) prescribed by proposed § 5.321(b). The commenter noted that the benefit of the need for regular aid and attendance is a We have reorganized initially doubt rule is ‘‘[w]hen there is an function of a person’s ability to care for proposed § 5.323(b) and moved one approximate balance of positive and himself or herself, not of another’s sentence from paragraph (b) into a negative evidence regarding any issue ability to provide financial or other closely related part 5 section. Initially material to the determination of a support. Although the veteran’s ability proposed § 5.323(b) stated limitations matter, the Secretary shall give the to provide for the spouse financially or on SMC under 38 U.S.C. 1114(k). benefit of the doubt to the claimant.’’ otherwise could vary in relation to the Paragraph (b)(1) stated limitations on The commenter argued that to comply veteran’s disability, it does not logically combining SMC under 38 U.S.C. 1114(k) with the benefit of the doubt rule, follow that the spouse’s need for regular with disability compensation under § 5.324(d) should substitute ‘‘at least as aid and attendance varies in relation to section 1114(a) through (j). Paragraph likely as not’’ for ‘‘reasonably certain’’. the veteran’s disability. In light of the (b)(2) stated limitations on combining That is, it should read, ‘‘It is at least as discussion above, we propose to make SMC under section 1114(k) with SMC likely as not that the confinement to bed no changes based on this comment. under 1114(l) through (n). On review, will continue throughout his or her we see that paragraph (b)(1)(ii) stated a § 5.322 Special Monthly lifetime.’’ limitation germane to paragraph (b)(2). The statute that § 5.324(d) implements Compensation: General Information and We therefore propose to move it to authorizes VA to pay special monthly Definitions of Disabilities paragraph (b)(2), and redesignate it as compensation to a veteran who is In initially proposed § 5.322(a)(1), we paragraph (b)(2)(i). We propose to ‘‘permanently bedridden.’’ 38 U.S.C. stated that multiple regulations allow redesignate initially proposed paragraph 1114(l). We agree that use of the term special monthly compensation (SMC) to (b)(2) as paragraph (b)(2)(ii). ‘‘reasonably certain’’ could be veterans who have certain service- One provision of initially proposed misconstrued to require a higher connected disabilities. In initially paragraph (b)(1)(iii) stated that the standard of proof than ‘‘at least as likely proposed paragraph (a)(2), we stated additional compensation for dependents as not’’. Therefore, we propose to that certain nonservice-connected under 38 U.S.C. 1115 is not subject to remove ‘‘reasonably certain’’. As disabilities will be considered in the ‘‘above limitations’’, meaning the revised, the standard of proof would be determining entitlement to SMC, and limitations in initially proposed the default standard, which is the we listed the relevant sections. To paragraph § 5.323(b)(1). We propose to ‘‘benefit of the doubt’’ rule. The ‘‘benefit emphasize that service-connected move this provision to § 5.240, of the doubt rule’’, found in § 5.3, disability is a prerequisite for SMC, we ‘‘Disability compensation’’, because it incorporates the concept of ‘‘at least as propose to add this sentence to pertains to all disability compensation, likely as not.’’ paragraph (a)(1): ‘‘Except as specified in not just to SMC. paragraph (a)(2) of this section, the The remainder of initially proposed § 5.325 Special Monthly Compensation disabilities referred to in §§ 5.323–5.333 paragraph (b)(1)(iii) stated that ‘‘the at the Intermediate Rate Between 38 must be service connected.’’ additional allowance for regular aid and U.S.C. 1114(l) and (m) Section 601 of Public Law 111–275, attendance or a higher level of care We propose to amend the language in 124 Stat. 2864, 2884 (2010) amended 38 provided by 38 U.S.C. 1114(r) [is] not § 5.325 for clarity. U.S.C. 1114(m) to replace the phrases subject to the above limitations ‘‘at a level, or with complications,’’ and regarding maximum monthly § 5.326 Special Monthly Compensation ‘‘at levels, or with complications,’’ with compensation payable under this Under 38 U.S.C. 1114(m) the phrase ‘‘with factors’’. The public paragraph.’’ To improve clarity, we In initially proposed § 5.326(i), we law also amended section 1114(n) to therefore propose to redesignate this provided an award of SMC under 38 replace ‘‘at levels, or with provision of initially proposed U.S.C. 1114(m) based on the facts found complications,’’ with the phrase ‘‘with paragraph (b)(1)(iii) as paragraph (b)(3) ‘‘[i]f the veteran has . . . concentric factors’’ and to replace ‘‘so near the and have clearly identified the excluded contraction of the visual field to 5 shoulder and hip as to’’ with ‘‘factors limitations as those of § 5.323(b). For degrees or less in both eyes’’. This that’’. It also amended section 1114(o) to consistency throughout part 5, we paragraph was derived from replace ‘‘so near the shoulder as to’’ propose to revise ‘‘compensation’’ to § 3.350(c)(3), which does not include with ‘‘with factors that’’. We propose to read ‘‘disability compensation’’. As the ‘‘or less’’ criterion. See 38 CFR

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3.350(c)(3) (‘‘[w]ith . . . the vision field compensation under this section, a monthly reopened claim retroactive to an reduced to 5 degrees concentric aid and attendance allowance equal to the effective date that is earlier than the contraction in both eyes’’). We did not rate described in subsection (r)(2), which for date of receipt of the claim,VA will also explain our reason for the addition of purposes of section 1134 of this title shall be award additional compensation for any considered as additional compensation the ‘‘or less’’ criterion. Although we did payable for disability. An allowance part of the retroactive period during not receive any comments on this issue, authorized under this subsection shall be which the spouse needed regular aid we note that in the NPRM for proposed paid in lieu of any allowance authorized by and attendance.’’ § 5.325(d) we explained our rationale for subsection (r)(1). Title 38 CFR 3.501(b)(3) states that the treating visual acuity of 5/200 or less We propose to add a new paragraph effective date for discontinuance of and concentric contraction of the visual (c)(7) to initially proposed § 5.332 to additional compensation paid based on field to 5 degrees or less as equally implement this statutory change. a spouse’s need for regular aid and disabling. See 73 FR 62012, Oct. 17, attendance is the, ‘‘[e]nd of month in 2008. In that notice, we also stated our § 5.333 Special Monthly Compensation which award action is taken if need for intent to apply the principle of Under 38 U.S.C. 1114(s) aid and attendance has ceased.’’ Initially equivalence of visual acuity of 5/200 or In Bradley v. Peake, issued after proposed paragraph (b) stated, ‘‘The less with concentric contraction of the § 5.333 was initially proposed, the U.S. effective date for the discontinuance of visual to 5 degrees or less ‘‘wherever it Court of Appeals for Veterans Claims regular aid and attendance will be the is applicable’’. It applies to § 5.326(i). held that under VA’s existing regulation end of the month in which VA stops 5.330 Special Monthly Compensation (38 CFR 3.350(i)) entitlement to SMC paying the aid and attendance.’’ The Under 38 U.S.C. 1114(o). under section 1114(s) may be provided proposed regulation incorrectly stated to a claimant who was assigned ‘‘a TDIU that VA will stop paying the benefit In initially proposed § 5.330(c), we [total disability based on individual when we discontinue the benefit. It also stated one combination of disabilities unemployability] rating based on a failed to identify the reason for the that qualify a veteran for an award single disability to satisfy the statutory discontinuance: the spouse no longer under 38 U.S.C. 1114(o) as follows: requirement of a total rating.’’ Bradley, needs regular aid and attendance. We ‘‘Total deafness in one ear, or bilateral 22 Vet. App. 280, 293 (2008). To clearly propose to remedy these two defects by deafness rated at 40 percent or more implement the court’s holding, we revising the sentence to read, ‘‘If the disabling, even if the hearing propose to revise the first paragraph of veteran’s spouse no longer needs regular impairment in one ear is nonservice initially proposed § 5.333 to state: aid and attendance, VA will discontinue connected, in combination with service- additional compensation effective the connected blindness of both eyes having Special monthly compensation under 38 end of the month in which VA takes the U.S.C. 1114(s) is payable to a veteran who only light perception or less.’’ We award action to discontinue.’’ believe the phrase ‘‘only light has a single disability rated 100 percent disabling under subpart B of the Schedule for 5.337 Award of Special Monthly perception or less’’, which is also Rating Disabilities in part 4 of this chapter, contained in current 38 CFR Compensation Based on the Need for or a disability that is the sole basis for a Regular Aid and Attendance During 3.350(e)(1)(iv), may confuse readers rating of total disability based on individual because it fails to explain what ‘‘less’’ unemployability (TDIU) under § 4.16 of this Period of Hospitalization refers to. The intent of § 3.350(e)(1)(iv) chapter, and [additional disabilities as We have determined that initially is to include veterans with only light described in either paragraph (a) or (b) of proposed § 5.337 is redundant of perception or less vision, so we propose § 5.333]. § 5.720(f). We therefore propose to to add the word vision at the end of We propose to revise paragraphs (a) and delete § 5.337 from part 5. § 5.330(c). (b) so that they will be clear when read § 5.350 Benefits Under 38 U.S.C. The preamble to initially proposed in connection with these revisions. 5.330 stated, ‘‘We will not repeat 1151(a) for Additional Disability or § 3.350(e)(4) and the third and fourth § 5.336 Effective Dates: Additional Death Due to Hospital Care, Medical or sentences of § 3.350(e)(3). These Compensation for Regular Aid and Surgical Treatment, Examination, sentences are redundant of Attendance Payable for a Veteran’s Training and Rehabilitation Services, or § 3.350(e)(1)(ii) . . .’’ In fact, we Spouse Under § 5.321 Compensated Work Therapy Program actually omitted the second through We propose to revise § 5.336(a)(2) to Initially proposed § 5.350 erroneously fourth sentences, for the same reason. be in the active voice and to improve included applicability date rules 5.332 Additional Allowance for clarity. In initially proposed paragraph derived from current § 3.361(a)(1) and Regular Aid and Attendance Under 38 (a)(2), we stated, ‘‘[retroactive] regular (2). Those rules pertain, respectively, to U.S.C. 1114(r)(1) or for a Higher Level of aid and attendance for the spouse will the applicability date of § 3.361 to Care Under 38 U.S.C. 1114(r)(2) also be awarded’’. We now propose to claims for benefits under 38 U.S.C. clarify that the benefit paid is properly 1151(a) generally, and to claims for Section 601 of Public Law 111–275, called ‘‘additional compensation’’ for benefits related to compensated work 124 Stat. 2864, 2884 (2010) amended 38 regular aid and attendance. Also, therapy specifically. No regulation in U.S.C. 1114 by adding a new paragraph initially proposed paragraph (a)(2) part 5 will apply before the applicability (t) which provides: referred to a spouse’s ‘‘entitlement to date of part 5 as a whole, which will be Subject to section 5503(c) of this title, if regular aid and attendance’’. However, it on a date prescribed in the final rule. any veteran, as the result of service- is the spouse’s need for, not entitlement Consequently, we erred in restating in connected disability, is in need of regular aid to, regular aid and attendance that is the initially proposed § 5.350 the and attendance for the residuals of traumatic basis for the additional compensation. applicability dates prescribed in § 3.361. brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of We therefore propose to change the We now propose not to include them in such regular aid and attendance would reference to ‘‘entitlement’’ to a reference § 5.350. We also propose to similarly require hospitalization, nursing home care, or to ‘‘need’’. The whole sentence will revise initially proposed §§ 5.351 and other residential institutional care, the read, ‘‘When VA awards disability 5.353, which also involve benefits under veteran shall be paid, in addition to any other compensation based on an original or section 1151.

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Section 3.800(a), ‘‘Disability or death implement the part of 38 U.S.C. 1152(b) the severity of the disease. Gingivitis, due to hospitalization, etc.’’, provides pertaining to 38 U.S.C. chapter 39. On which is acute and treatable, is a milder that: September 23, 2010, VA amended form of periodontal disease. Where disease, injury, death or the § 3.362(e) to implement 38 U.S.C. Periodontitis, which is chronic, is the aggravation of an existing disease or injury 1151(b) pertaining to 38 U.S.C. chapter condition that develops if gingivitis is occurs as a result of having submitted to an 21. See 75 FR 57859. Initially proposed untreated. Since these are essentially examination, medical or surgical treatment, § 5.352 omitted a counterpart to different stages of the same disease, VA hospitalization or the pursuit of a course of § 3.362(e). We now propose to add the will treat both stages. vocational rehabilitation under any law language of § 3.362(e), reorganized for We propose to remove the phrase, administered by the Department of Veterans clarity. ‘‘outpatient dental’’ from the first Affairs and not the result of his (or her) own sentence of paragraph (e) (initially willful misconduct, disability or death § 5.360 Service Connection of Dental compensation, or dependency and indemnity Conditions for Treatment Purposes proposed paragraph (c)) because it is redundant and unnecessary. This entire compensation will be awarded for such Initially proposed § 5.360 was based disease, injury, aggravation, or death as if section concerns service connection of such condition were service connected. on 38 CFR 3.381 as it existed at the time dental conditions for treatment (2008). See 73 FR 62004. VA revised In initially proposed § 5.350, we purposes. It is immaterial whether VA § 3.381 on January 30, 2012 (77 FR treats the veteran as an outpatient or failed to include a similar basic 4469). This amendment was intended to explanation of the benefits payable while hospitalized. We also propose to clarify the language of § 3.381 by adding remove ‘‘acute periodontal disease’’ under 38 U.S.C. 1151. To correct this a new introductory paragraph (a) omission, we propose to insert similar from the list of conditions that VA will explaining the types of issues that VBA not service connect for treatment language as new paragraph (a). adjudicates in a dental claim. VA also purposes for the reasons stated earlier. In initially proposed § 5.350(g), we added a sentence to § 3.381(b) We propose to redesignate the stated, ‘‘The benefit payable under 38 explaining that, ‘‘These conditions and subsequent paragraphs accordingly. U.S.C. 1151(a) to an eligible survivor for other dental conditions or disabilities a veteran’s death occurring after that are noncompensably rated under § 5.365 Claims Based on the Effects of December 31, 1956, is dependency and § 4.150 of this chapter may be service Tobacco Products indemnity compensation.’’ This connected for purposes of Class II or Initially proposed § 5.365 restated paragraph is unnecessary because we Class II (a) dental treatment under § 3.300 essentially without change. use the term ‘‘dependency and § 17.161 of this chapter.’’ indemnity compensation’’ in new We propose to revise initially Initially proposed § 5.365(b)(1) stated: paragraph (a), and part 5 will not govern proposed § 5.360(a), ‘‘General ‘‘The disability or death resulted from any claims filed on or before December Principles’’, to incorporate the new injury or disease that is otherwise 31, 1956. We therefore propose to delete introductory paragraph (a) of § 3.381 shown to have been incurred or paragraph (g). and to add a statement explaining what aggravated during service, which means service connection for treatment that the disability or death can be § 5.352 Effect of Federal Tort Claims purposes means. We likewise propose to service connected on some basis other Act Compromises, Settlements, and include the second sentence of than the veteran’s use of tobacco Judgments Entered After November 30, § 3.381(b) in § 5.360(c)(3). We also products during service.’’ The phrase 1962, on Benefits Awarded Under 38 propose to revise initially proposed ‘‘otherwise shown to have been incurred U.S.C. 1151(a) for Additional Disability § 5.360 to simplify the provisions, to or aggravated’’ quotes paragraph (b) of or Death Due to Hospital Care, Medical state the provisions in the active voice, the authorizing statute, 38 U.S.C. 1103. or Surgical Treatment, Examination, to specify which Administration within However, we have determined that the Training and Rehabilitation Services, or VA must make which determinations, phrase ‘‘the disability or death can be Compensated Work Therapy Program and to reorder the provisions in a more service connected on some basis other For the same reasons explained above logical sequence. than the veteran’s use of tobacco as to § 3.350, we propose to delete We propose to change the sequence of products during service’’ is the premise initially proposed paragraph (a), which the paragraphs, designating paragraph of the paragraph. The other language in had stated that this rule applied to (b) as (c), paragraph (c) as (e), paragraph the initially proposed paragraph is claims received after September 30, (d) as (b), and paragraph (e) as (d). It is superfluous. We therefore propose to 1997. Accordingly, we propose to more logical to include the paragraphs remove this other language. redesignate initially proposed paragraph concerning what VA will service We also determined that the phrase, (b) as paragraph (a), proposed paragraph connect for treatment purposes together ‘‘the disability became manifest or death (c) as paragraph (b), and proposed and in sequence and before the occurred during service’’, which paragraph (d) as paragraph (c). We paragraph that provides for the appeared in initially proposed (b)(1), is propose to remove unnecessary conditions VA will not service connect a separate exception to paragraph (a). language from these paragraphs for for treatment purposes. We therefore propose to designate it clarity. In proposed paragraph (c) (initially paragraph (b)(2). Consequently, we We propose to add paragraph (d), proposed paragraph (b)), we propose to propose to redesignate initially ‘‘Offset of award of benefits under 38 rephrase the first sentence to state it in proposed paragraph (b)(2) as (b)(3) and U.S.C. chapter 21 or 38 U.S.C. chapter the active voice. We propose to remove initially proposed paragraph (b)(3) as 39’’, to initially proposed § 5.352. the modifier, ‘‘chronic’’ from (b)(4). Section 304(c) of the Veterans Benefits periodontal disease in paragraph (iv) We further propose to change the Improvement Act of 2004 amended 38 because VA will treat any periodontal word ‘‘appeared’’ in initially proposed U.S.C. 1151(b) by adding section disease in a veteran who is eligible for paragraph (b)(2), redesignated paragraph 1151(b)(2) relating to offset of chapter 21 treatment in accordance with the (b)(3), to ‘‘manifested’’ because the cited and 39 benefits. VA amended current provisions of § 17.161 of this chapter. sections, §§ 5.260 through 5.268, use the § 3.362 in August 2006 by adding Periodontal disease, whether labeled word ‘‘manifested’’. Likewise, 38 U.S.C. paragraph (e) to that section to acute or chronic, is classified based on 1103(b) uses the word ‘‘manifest’’.

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In the preamble to the initially comment period that ended November here. We will explicitly note in the proposed rule, we explained that we 26, 2007. We received no comments. definition that claimants for special were not repeating the first clause of Although we received no comments monthly pension must meet the § 3.300, ‘‘For claims received by VA regarding our publication on September eligibility criteria for Improved Pension, after June 9, 1998,’’ because all claims 26, 2007, an internal review of initially notwithstanding that this is implied by under part 5 will be received after 1998. proposed Subpart F revealed several the definition of special monthly We have noted that one of the authority drafting errors that needed to be pension as a ‘‘type of Improved citations listed in initially proposed corrected, and we propose to do so. We Pension’’. § 5.365 was 38 U.S.C. 1103 note. also propose to make organizational and We propose to delete the initially Because this note only concerns this technical changes to improve the clarity proposed definition of ‘‘surviving child’’ effective date provision, we propose to of the regulations, and to maintain as unnecessary and redundant of other omit it from § 5.35. consistency throughout part 5. material in part 5. § 5.367 Civil Service Preference § 5.370 Definitions for Improved § 5.371 Eligibility and Entitlement Ratings for Employment in the U.S. Pension Requirements for Improved Pension Government We propose to add a general We propose to revise § 5.371(a) so that definition of ‘‘Improved Pension’’, as it is in the active voice and so that it Initially proposed § 5.367 was not § 5.370(d), to be consistent with our specifically refers to special monthly explicit as to the purpose of the civil practice of providing general definitions pension, where, in the initially service preference ratings. We now for the benefits provided by VA. See, for proposed version, it applied only propose to clarify that these ratings are example, §§ 5.240(a) (defining disability implicitly to special monthly pension. for ‘‘employment by the U.S. compensation) and 5.460 (defining In addition, we propose to delete from government’’. This clarification is certain VA pension programs). The text paragraph (a) the material that was consistent with current practice. of the definition is based on the text of moved to the definition in § 5.370. The second sentence stated, ‘‘Any what was initially proposed as § 5.371, Initially proposed paragraph directly or presumptively service- with minor revisions to improve clarity. § 5.371(c) states the general rules for the connected injury or disease that exhibits We also propose to add a definition of eligibility requirements to Improved some extent of actual impairment may ‘‘Improved Pension payment amount’’ Death Pension for a surviving spouse or be held to exist at the level of less than as paragraph (e), which is ‘‘the monthly surviving child. We propose to add 10 percent.’’ This implied a two-step payment calculated under § 5.421(a)’’. cross-references in § 5.371(c)(1) and (2) process in which VA found ‘‘actual In the definition of ‘‘Maximum annual to the part 5 regulations relating to impairment’’ and then assigned a rating pension rate’’, proposed paragraph (f), status as a surviving spouse, and of less than 10 percent. In fact, there is we changed the reference to § 5.400 surviving child. only one step: if a veteran has any from ‘‘The various types of maximum We propose to clarify paragraph actually disabling directly or annual pension rates are set forth at § 5.371(c) by moving the material in presumptively service-connected § 5.400’’ to ‘‘Maximum annual pension initially proposed § 5.371(c)(3) to the disability he or she will qualify for the rates are described in § 5.400’’. Section beginning of the paragraph. The purpose civil service preference. We propose to 5.400 does not ‘‘set forth’’ any rates; it of the language is to explain that in revise the sentence to say this explicitly. merely refers the reader to title 38, determining eligibility for Improved § 5.368 Basic Eligibility United States Code. Death Pension, it does not matter In this revised version of § 5.370, we Determinations: Home Loan and whether the veteran’s death is service- would add a definition of ‘‘net worth in Education Benefits connected. proposed paragraph (g)’’ as ‘‘the value of § 5.372 Wartime Service Requirements real and personal property, as calculated In initially proposed § 5.368(a)(1), we for Improved Pension stated that claims based on service after under § 5.414’’. This is a general January 31, 1955, and before August 5, definition, and is consistent with We propose to add the word 1964; or after May 7, 1975, would be common usage of the term; however, it ‘‘nonconsecutive’’ to § 5.372(b)(2), to governed by the presumption of will be useful to provide a definition in illustrate that, unlike the period aggravation in current § 3.306(a) and (c). this central location of § 5.370, where it described in paragraph (b)(1), the days This was derived from current will guide readers to the relevant (and need not be consecutive to meet this § 3.315(b). However, the current rule is more detailed) substantive rules in requirement. Indeed, if the days were incorrect, and should refer to § 3.306(b), § 5.414. consecutive, the service described in which applies to all claims based on In § 5.370, we initially proposed to paragraph (b)(2) would meet the service after December 7, 1941. We will define ‘‘special monthly pension’’ as: requirements of paragraph (b)(1). We do state the rule correctly in part 5. We [A] type of Improved Pension with higher not need to add the word propose to make the same correction to maximum annual pension rates than the ‘‘nonconsecutive’’ to paragraph (b)(3) paragraph (b)(4). basic rates listed in § 5.400(a)(1) and (5). because that paragraph explicitly Special monthly pension is based on a requires two separate periods of service. XI. Subpart F: Nonservice-Connected veteran’s or surviving spouse’s disability or Initially proposed § 5.372(b)(4)(ii) Disability Pensions and Death Pensions disabilities ratable at 60 percent or more, provided wartime service if the veteran Improved Pension their housebound status, or their need of the served for any period of time during a aid and attendance of another person in period of war and had a disability ‘‘at A. Improved Pension performing their daily living habits. the time of discharge that in medical In a document published in the We propose to revise the definition in judgment would have justified a Federal Register on September 26, 2007, proposed paragraph (i) to make it more discharge for disability’’. This we proposed to revise VA’s regulations general; specific entitlement criteria are requirement appears in current governing Improved Pension benefits, to more appropriately discussed in the § 3.3(a)(3)(ii). In part 5, we will remove be published in a new 38 CFR part 5. substantive rules at §§ 5.390 and 5.391. the ‘‘medical judgment’’ requirement. 72 FR 54776. We provided a 60-day There is no need to restate those criteria Instead, we will require that the veteran

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have ‘‘had such a service-connected citation and cross reference and we propose to include a rule equivalent to disability at the time of discharge that therefore believe it is unnecessary in current 38 CFR 3.321(b)(2). would have justified discharge.’’ This part 5. change will recognize that in some cases Initially proposed § 5.381(b)(2), which § 5.383 Effective Dates of Awards of lay evidence may be sufficient to is now § 5.380(c)(2), consisted of seven Improved Disability Pension sentences that were not logically establish the existence of a disability We have determined that initially organized and were not stated clearly. that could have served as a basis for proposed § 5.383(a)(2) is an exception to We propose to reorganize the material. discharge. the general effective date rule for In addition, we propose to improve In sentence one, we propose to replace Improved Disability Pension. It deals the clarity of the paragraph by ‘‘consistent with the evidence in the specifying that the disability that case’’ with ‘‘that is shown by the with previously denied claims, and we existed at discharge must be one for evidence’’, because that phrase has the propose to name it as addressing such which service connection is granted same meaning as ‘‘consistent with the claims and redesignate it as paragraph without relying on a presumption. This evidence’’ and is easier for the public to (b). What was previously proposed is consistent with current § 3.3(a)(3)(ii). understand. For the same reason, we paragraph (b) will now be proposed propose to use the phrase ‘‘that is paragraph (c). § 5.373 Evidence of Age in Improved shown by the evidence’’ in paragraphs We propose to revise § 5.383(b)(3), Pension Claims (c)(2)(i) through (iii). The remaining eliminating the description of an In initially proposed § 5.373, we material will be divided into three incapacitating disability, which was stated that the regulation applies when separate paragraphs, § 5.380(c)(2)(i) circular and confusing. The revised age ‘‘is material to the decision of an through (iii), to distinguish between language will also affirmatively state Improved Pension claim’’. It is possible generally applicable rules, rules that that a disability that requires extensive to misread this language as a narrowing apply to cases involving disabilities that hospitalization is an incapacitating of the current rule, such that the new require hospitalization for indefinite disability for Improved Disability rule would apply only when age is periods, and special rules that apply Pension purposes, whereas the initially outcome determinative. We therefore only in tuberculosis cases. proposed language appeared to establish propose to remove the phrase ‘‘the In what was initially proposed as a rebuttable presumption to the same decision of’’. As revised, the part 5 rule § 5.381(b)(3), which is now proposed effect. Compared to current will be substantively identical to the § 5.380(c)(3), we propose to remove § 3.400(b)(1)(ii)(B) and to the initially current rule. language requiring VA to give ‘‘special proposed rule, the revised rule is easier consideration’’ to veterans under 40 §§ 5.380 Disability Requirements for to understand and apply. Consequently, years of age. As revised, the regulation Improved Disability Pension; 5.381 this will be a change from both part 3 will describe how VA determines the Permanent and Total Disability Ratings and the initially proposed rule, but it permanence of total disability in such for Improved Disability Pension will result in a clearer regulation and veterans, without suggesting that VA Purposes; and 5.382 Improved will not lead to later effective dates of treats these veterans in a ‘‘special’’ way, Disability Pension—Combining awards to disabled veterans. that is, without suggesting that these Disability Ratings veterans are not entitled to the same § 5.390 Special Monthly Pension for a We propose to significantly revise treatment as any other veteran. Veteran or Surviving Spouse Based on §§ 5.380, 5.381, and 5.382 by combining In initially proposed § 5.381(b)(4), the Need for Regular Aid and the initially proposed regulations, which is now § 5.380(c)(4), we propose Attendance removing redundant material, correcting to change ‘‘presumed’’ to ‘‘considered’’ errors, and otherwise improving clarity. to be consistent with the current Initially proposed § 5.390 was titled, In addition, we propose to reserve regulation, § 3.342(b)(4), and the statute, ‘‘Special monthly pension for veterans §§ 5.381 and 5.382, and several other 38 U.S.C. 1718(g). ‘‘Considered’’ is more and surviving spouses at the aid and changes as discussed below. favorable to veterans because it attendance rate.’’ We propose to revise In § 5.380(a), we propose to add establishes a rule rather than a the title to read, ‘‘Special monthly guidance on how VA combines rebuttable presumption. pension for a veteran or surviving disability ratings to determine whether In initially proposed § 5.381(b)(4)(i), spouse based on the need for regular aid a veteran is permanently and totally which is now § 5.380(c)(4)(i), we and attendance.’’ The revision is in part disabled for Improved Pension repeated a typographical error from to help clarify that special monthly purposes. This guidance was initially § 3.342(b)(3)(i) by using ‘‘member- pension is essentially Improved Pension contained in proposed § 5.382(b). We employer’’. The correct term is paid at a higher maximum annual now propose to move § 5.382(b) to ‘‘member-employee’’. Compare 50 FR pension rate. The revision also makes § 5.380(a) because it is more logical to 36632, Sept. 9, 1985 (proposed the reference to regular aid and state that provision in § 5.380(a) along amendment of § 3.342(b)(4) using attendance consistent with our with the other disability requirements. ‘‘member-employee’’) with 50 FR 52775, terminology in the rest of part 5. We also propose to eliminate § 5.382(a) Dec. 26, 1985 (final rule amending We propose to make significant because in the case, as here, where a § 3.342(b)(4) using ‘‘member- clarifications, eliminate redundancy, veteran has multiple disabilities, all employer’’). and otherwise simplify the introductory disabilities are combined in the same In initially proposed § 5.381(b)(5), paragraph, proposed as § 5.390(a). manner, regardless of whether the which is now § 5.380(c)(5), we had disability is service or non-service cross-referenced a part 5 regulation that In initially proposed § 5.390(b)(4), connected. We now propose to mark would be based on current 38 CFR which is now § 5.390(d), we had cross- § 5.382 as reserved. 3.321(b)(2) (concerning extra-schedular referenced § 5.333 for the rules to In initially proposed § 5.380, we ratings for pension). We have since govern factual need for aid and failed to explain our omission of current decided against establishing a separate attendance. We propose to change this 38 CFR 3.342(b)(5). We consider that regulation based on that current rule. citation to § 5.320 because we propose paragraph to be a comingled authority Thus, in the revised § 5.380(c)(5), we to renumber the regulation.

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§ 5.391 Special Monthly Pension for a We therefore propose to delete Pension’’. We also omitted the Veteran or Surviving Spouse At the § 5.391(b) and reorder the section provisions of § 3.402(c)(2), concerning housebound rate paragraphs accordingly. concurrent receipt of Improved Pension and Improved Death Pension. We In initially proposed part 5, there are § 5.392 Effective Dates of Awards of propose to correct this omission by several regulations that define Special Monthly Pension adding a new paragraph (b). ‘‘permanently housebound’’ as it applies Although it was technically accurate, In initially proposed § 5.392(b), we to the veteran and the surviving spouse. initially proposed § 5.392, ‘‘Effective stated an exception applicable ‘‘when To ensure consistency throughout part dates of awards of special monthly an award of Improved Pension is 5, we propose to change the definition pension’’, was unnecessarily complex. effective retroactively’’. This refers to in § 5.391(a)(2), to the language used in In paragraph (a), we had stated the the retroactive provisions in § 5.383(b). proposed § 5.511(c). Proposed paragraph general rule that the effective date of an By referencing § 5.383 in its entirety in (a)(2) will now define the term to mean award of special monthly pension was § 5.392(a), the simplified version of that the veteran is substantially the date VA received the claim for paragraph (a) will eliminate the need for confined to his or her residence (ward special monthly pension or the date this exception. or clinical areas, if institutionalized) entitlement arose, whichever date is and immediate premises because of a later. This is essentially the same as the § 5.400 Maximum Annual Pension disability or disabilities, and that it is effective date of an award of Improved Rates for a Veteran, Surviving Spouse, reasonably certain that such disability Pension under §§ 5.383 and 5.431, or Surviving Child or disabilities will not improve during except that it does not address the After reviewing initially proposed the veteran’s lifetime. eligibility or entitlement criteria for § 5.400, we propose to make several Initially proposed § 5.391(b) was a Improved Pension. It is unnecessary for changes, including redesignating due to new provision intended to reconcile the special monthly pension effective the removal and revision of certain current VA regulations, which have not date regulation to address such criteria, paragraphs, described below. been altered since being promulgated in because the claimant must have met We determined that it would be 1979, with Hartness v. Nicholson, 20 those criteria as a prerequisite for the helpful for readers to know that the Vet. App. 216 (2006). In that case, the award. Moreover, in cases where a rates of pension are listed on the United States Court of Appeals for claimant who was not already receiving Internet. We therefore propose to add Veterans Claims (CAVC) stated that Improved Pension is awarded special the following sentence to what is now current § 3.351(d) does not consider the monthly pension, the claim for the introductory paragraph (which, as interpretive effects of 38 U. S.C. 1513(a), Improved Pension constitutes the claim initially proposed, was designated as first enacted in 2001, on 38 U.S.C. for special monthly pension, because paragraph (a)): ‘‘Current and historical 1521(e). See Hartness, 20 Vet. App. at special monthly pension is a form of maximum annual rates can be found on 221. The CAVC held that, according to Improved Pension paid at a higher the Internet at http://www.va.gov or are these statutes, a veteran who is maximum annual pension rate. Thus, available from any Veterans Service otherwise eligible for Improved Pension the award of special monthly pension is Center or Pension Management Center.’’ based on being age 65 or older, and who predicated upon the same rules that We propose to include ‘‘Pension is not in need of regular aid and govern the award of Improved Pension, Management Center’’ because most attendance, is entitled to special and the award of special monthly pension cases are processed in these monthly pension at the housebound rate pension will be effective on the same three centers. We propose to remove if he or she has a disability ratable at 60 date as the award of Improved Pension from that paragraph language related to percent or more or is considered in every situation except where 38 U.S.C. 5312 because it was permanently housebound. See Hartness, entitlement to special monthly pension redundant of § 5.401. For similar 20 Vet. App. at 221–22. The court held arose after the date of entitlement to reasons, we propose to add ‘‘Pension that such a veteran, unlike a veteran Improved Pension. This could occur in Management Center’’ to initially who is under 65 years old, need not a case where an Improved Pension proposed § 5.471(a). have a disability that is permanent and beneficiary files a new claim for special Also in reviewing this section, we total. See id. monthly pension, or where a claimant found that what is now designated as However, in 2012, the U.S. Court of seeking Improved Pension incurs, after paragraph (e) could be simplified to Appeals for the Federal Circuit filing the Improved Pension claim, refer only to a surviving spouse. The overturned Hartness. In Chandler v. additional disability that makes him or authorizing statute for that paragraph Shinseki, 676 F.3d 1045 (Fed. Cir. 2012), her eligible for special monthly pension. addresses the different rates based on the court stated: Hence, we propose to revise the rule to whether or not the spouse has custody simply state that the effective date of an of a child of the deceased veteran. This court concludes § 1513(a) only We propose to delete initially eliminates the permanent and total disability award of special monthly pension will requirement in § 1521(a), which applies to all be the later of either the effective date proposed § 5.400(b), pertaining to World § 1521 subsections. The language of section of the award of Improved Pension under War I veterans, because VA does not 1521 is structured so that subsection (a) is a § 5.383 or the award of Improved Death have any Improved Pensioners on its threshold requirement and the other Pension under § 5.431, or the date rolls who served in World War I and subsections recite additional requirements entitlement to special monthly pension does not expect to receive any new for a veteran to qualify for different pension arose. claims from such veterans. If any claims rates. As such, § 1521’s language and In initially proposed § 5.392 we failed are received, they may be adjudicated in structure, when viewed in light of the to include the provisions of 38 CFR accordance with 38 U.S.C. 1521(g), statute’s purpose and meaning, suggest that 3.402(c)(1), concerning aid and which provides the higher rate for such the parenthetical exclusion in section 1513(a) refers only to the threshold requirement attendance, and housebound benefits veterans. found in section 1521(a) for pension benefits payable to a surviving spouse. We Finally, we propose to move the under § 1521 and not to the additional propose to correct this omission by information that had been contained in [housebound] requirements imposed by adding a reference to proposed § 5.431, initially proposed § 5.400(c), concerning § 1521(e). slip op at 11. ‘‘Effective dates of Improved Death higher maximum annual pension rates

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based on the number of dependents, to We propose to add paragraphs (c)(3)(i) current VA practice and VA Form 21– the second sentence of what is now the and (ii) to address overlapping irregular 0571. introductory paragraph. We were income. This type of income was not In § 5.411(c), we describe the concerned that the separate paragraph previously addressed. This change hardship exclusion. The calculation would lead a reader to think that follows current VA practice. required under paragraphs (c)(1) paragraph (c) was an exception to the through (5) was included in the initially § 5.411 Counting a Child’s Income for information in the introductory proposed rule and is set forth in current Improved Pension Payable to a Child’s paragraph when, in fact, the statutes § 3.272(m), but it is not clearly Parent referred to in the introductory paragraph described as a mathematical formula. provide the higher rates. In reviewing initially proposed This subsequently proposed rule more § 5.411, we determined that this section clearly shows how VA calculates the § 5.401 Automatic Adjustment of could be much clearer, and we also amount of the hardship exclusion. Maximum Annual Pension Rates identified several problems with the In paragraph (b)(1), we propose to add We propose to omit a counterpart to initially proposed regulation. that annual expenses cannot include § 3.23(c) from § 5.401. The preamble to In paragraph (a), we propose to now ‘‘expenses for items such as luxuries, initially proposed § 5.401(b), 72 FR state the general rule, which is that ‘‘VA gambling, and investments’’. This 54776, 54782–54783 (Sept. 26, 2007), counts as income to the parent- guidance is based on long-standing VA stated that it derives, in part, from beneficiary (that is, the veteran or practice and will clarify for VA § 3.23(c), which provides for publication surviving spouse receiving Improved employees what types of expenditures of increases in the rate of pension paid Pension) the annual income of every are, or are not, necessary to support a to Mexican border period and World child of the veteran who is in the reasonable quality of life. Finally, we propose to move what was War I veterans. As explained in the parent-beneficiary’s custody’’. In current initially proposed as § 5.411(c), ‘‘Child’s initial, 72 FR 54776, 54782, and current § 3.23(d)(4) and (5), this rule is phrased earned income’’, to § 5.412(a). This preambles for § 5.400, part 5 will not as a presumption: ‘‘There is a rebuttable provision was mistakenly included in repeat 3.23(c) because it is obsolete. presumption that all of such a child’s § 5.411, but it applied, by its terms, to Consequently, though proposed 5.401(b) income is available to or for the [parent- calculating a child’s income in all restates the requirement to publish beneficiary].’’ Using a presumption situations. Hence, we have moved it to increases in the rate of certain benefits, makes this rule far more complicated § 5.412(a), where it is more VA will not publish increased in the than it needs to be. Moreover, neither appropriately located. We propose to rate for veterans of the Mexican border the current regulation nor the initially redesignate the paragraphs of initially period or World War I, and § 5.401(b) proposed part 5 regulation clearly stated proposed § 5.412 to accommodate the does not partly derive from § 3.23(c). that the parent-beneficiary must new paragraph (a). specifically seek to rebut the § 5.410 Countable Annual Income presumption. Thus, in § 5.411(a), we § 5.412 Income Exclusions for We propose to clarify § 5.410(a)(1) propose to state that the child’s income Calculating Countable Annual Income and make its phrasing parallel in is counted as income to the parent- In Osborne v. Nicholson, 21 Vet. App. structure to paragraph (a)(2) for beneficiary unless the parent- 223 (2007), the court held that consistency. beneficiary files a claim to exclude all ‘‘pursuant to § 3.272(e), the receipt of In initially proposed § 5.410(b)(3), we or part of the child’s income. accrued interest on the redemption of a stated that: ‘‘The income of a surviving We also, in paragraph (a), propose to savings bond is ‘profit realized from the child includes the income of that child’s establish a duty on the part of VA to disposition of . . . personal property’ custodial parent and the income of other provide the proper VA form to describe and is therefore excluded from income surviving children as described in the bases for the exclusions that follow. for VA pension purposes.’’ A GC § 5.435, ‘Calculating annual Improved VA uses VA Form 21–0571, Opinion was issued based on this Pension amounts for surviving ‘‘Application For Exclusion Of ruling, VAOPGCPREC 2–2010 (May 10, children.’ ’’ The preamble to the initially Children’s Income’’, to gather the 2010). The GC Opinion stated that the proposed rule explained that the rule information needed to calculate whether holding of Osborne v. Nicholson regarding whose income must be a parent-beneficiary qualifies for an depended not on the political entity that included in a surviving child’s income exclusion. Much of the specificity that issued the bond, but rather on the terms was ‘‘too complex to be included in this we have added to § 5.411 in this of the bond. The Opinion further stated regulation, so we propose to include a rulemaking is derived from that form, that ‘‘If a bond requires redemption for cross-reference to proposed § 5.435’’. and using that form simplifies the the payment of accrued interest . . . However, § 5.435 requires including the process and greatly reduces the burden then the statutory exclusion for profit income of the surviving child’s of seeking an exclusion under this rule. realized from the disposition of real or custodian, irrespective of whether the In initially proposed § 5.411(b), we set personal property applies. If accrued custodian is a ‘‘custodial parent’’. Thus, forth the first basis for an exclusion of interest is payable on the bond without the reference in § 5.410(b)(3) to the child’s income, which is that the redemption, then it does not qualify for ‘‘custodial parent’’ was improperly income is not considered available for the exclusion.’’ This income exclusion narrow. We therefore propose to change expenses necessary for reasonable also applies to interest received from the the term ‘‘custodial parent’’ to family maintenance. We propose to surrender of a life insurance policy. ‘‘custodian’’. This change corrects the change the term ‘‘reasonably available’’ However, if a bond pays interest erroneous reference to a ‘‘custodial to ‘‘considered available’’ for clarity. semiannually without the redemption of parent’’ in the proposed rule. We also This rule is similar to the current and such bond, VA will consider the interest propose to clarify in paragraph (b)(3) initially proposed rules, except that in received as income. The GC Opinion that the income of a surviving child paragraph (b)(2) we provide specific also held that the exclusion of interest includes that child’s income, to make examples of common ways to establish received from the redemption of a bond the provision consistent with that income is not considered available. applies to income calculations in paragraphs (b)(1) and (2). These examples are derived from parents’ dependency and indemnity

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compensation (DIC), Improved Pension, Section 306 Pension Only’’, and § 5.532, The regulation meant a professional and Section 306 Pension. Section ‘‘Deductions from income for parent’s practice. We are now clarifying this 3.262(k) excludes from income the dependency and indemnity term. accrued interest received from the compensation.’’ § 5.414 Net Worth Determinations for redemption of a savings bond for We propose to revise paragraphs Improved Pension purposes of Section 306 Pension and (b)(2)(i) and (ii). As initially proposed, parents’ DIC to the extent that § 3.272(e) the provision could be interpreted to In reviewing initially proposed excludes such income in Improved permit deductions for a member of the § 5.414, we determined that this section Pension. Conversely, there is no profit household ‘‘for whom there is a moral could be clarified by the reorganization exclusion for Old-Law Pension in or legal obligation of support’’ on the and removal of unnecessary verbiage. § 3.262(k)(3). VA will therefore consider part of the beneficiary, irrespective of We also propose to provide more as income the interest received from the whether that person was a relative of the detailed explanations of when a surrender of a bond or life insurance in beneficiary. The part 3 rule, located in dependent’s net worth is considered Old-Law Pension. Although not § 3.272(g)(1) and (2), requires that the and how net worth can bar Improved specifically stated in the Opinion, we person be both a relative and a member Pension. believe that this exclusion also applies of the household. We propose to revise In what is now paragraph (b)(1) in the income calculation for the § 5.413(b)(2) so that it accords with the (initially proposed paragraph (a)), we dependency of a parent for purposes of current rule. We also propose to correct propose to add the word ‘‘primary’’ disability compensation. This an error in initially proposed paragraph before residence to clarify that VA interpretation is considered to be just (b)(2)(i). The initially proposed excludes from net worth only the value and consistent with the intent of the provision and the current rule, of the residence where the claimant or statute. § 3.272(g)(1)(i) and (ii), refer incorrectly We therefore propose to incorporate to the veteran’s ‘‘spouse’’ instead of beneficiary usually lives, not the value the holding of the GC Opinion in referring to the veteran’s ‘‘dependent of other properties where they may proposed § 5.412(e). We also propose to spouse’’. occasionally reside. A claimant or include similar changes in §§ 5.302(d), In paragraphs (c)(2)(ii) and (iii), we beneficiary can only have one primary ‘‘General income rules—parent’s propose to remove a reference to ‘‘just residence at any given time. The term is dependency’’, 5.472, ‘‘Evaluation of debts’’ because ‘‘just debts’’ are well understood because a primary income for Old-Law Pension and included in the definition of final residence is considered as a legal Section 306 Pension’’, and 5.533, expenses set forth in paragraph (c)(1). residence for purpose of income tax ‘‘Income not counted for parent’s We propose to remove the reference to and/or acquiring a mortgage. We also dependency and indemnity chapter 51 and § 5.551(e) in propose to clarify that the primary compensation.’’ § 5.413(c)(3)(i). The current rule, residence will not be counted as net In initially proposing this subpart, we § 3.272(h)(1)(ii), and the authorizing worth simply because the veteran has inadvertently omitted § 3.272(x) (listing statute, 38 U.S.C. 1503(a)(3), only moved into a nursing home. ‘‘lump-sum proceeds of any life reference ‘‘expenses not reimbursed In what is now paragraph (b)(3) insurance policy on a veteran’’ as an under chapter 23 of this title’’. We (initially proposed paragraph (c)(3)), we item VA will not count when propose to revise § 5.413(c)(3)(i) so that propose to clarify that the ‘‘child calculating countable income for it accords with them. educational exclusion’’ applies whether Improved Pension), so we propose to We also propose to clarify the child is a dependent or a claimant insert § 5.412(l)(8) as its part 5 § 5.413(c)(3)(ii) to state that if ‘‘The in his or her own right. equivalent. expenses of a veteran’s last illness were In § 5.414(d)(2)(i), we propose to We propose to move the broad allowed as a medical expense deduction clarify that a claimant’s adjusted annual provision proposed as § 5.412(k)(8) to on the veteran’s pension or parents’ income includes the adjusted annual § 5.412(m). dependency and indemnity income of any person whose net worth Section 604 of Public Law 111–275, compensation (DIC) account during the is considered part of the claimant’s net 124 Stat. 2864, 2885 (2010) amended 38 veteran’s lifetime’’, then said expenses worth. These rules were not explicit in U.S.C. 1503(a) to exclude payment of a will not be deducted from a surviving the initially proposed rule, but they monetary amount of up to $5,000 to a spouse’s award. This change will follow comport with current VA practice and veteran from a State or municipality that current VA practice. policy and are not inconsistent with the Subsequent to the publication of is paid as a veterans benefit due to initially proposed rule. injury or disease from countable income proposed § 5.413, section 509 of Public for purposes of Improved Pension. We Law 112–154 (2012) amended 38 U.S.C. In initially proposed § 5.414(d), we propose to add this exclusion as 1503(a) by adding new provisions determined that there was a lack of § 5.412(n). which set forth in detail what casualty criteria for determining whether net loss reimbursements are excludable worth is a bar for benefits. To eliminate § 5.413 Income Deductions for from countable income for purposes of ambiguity, we propose to establish an Calculating Adjusted Annual Income VA Improved Pension. We propose to $80,000 guideline and determined that In reviewing initially proposed include these new provisions in ‘‘it is reasonable to expect that part of § 5.413, we determined that this section § 5.413(d). the claimant’s net worth should be used could be clarified. We propose to revise We propose to move § 5.413(e), for the claimant’s living expenses’’ the language, particularly in paragraph concerning the treatment of gambling when the net worth is $80,000 or more. (b), to more accurately reflect current losses, to § 5.410(g), because it primarily Having a specific dollar amount ensures policy. These changes will not alter the concerns counting income from uniformity and fairness of VA decision- legal effect of this section. In paragraph gambling. Initially proposed paragraph making throughout the country. This (b), we propose to add a cross-reference (f) of this section is redesignated change is consistent with current to § 5.707, ‘‘Deductible Medical paragraph (e), accordingly. Initially practice. Expenses,’’ to be consistent with proposed § 5.413(g), which is now We also propose to revise § 5.414(e) § 5.474, ‘‘Deductible Expenses for § 5.413(f), used the term ‘‘profession’’. for clarity.

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§ 5.415 Effective Dates of Changes in simple definition of ‘‘reporting period’’ surviving veterans of these war periods Improved Pension Benefits Based on so we propose to insert the following and VA does not anticipate receiving Changes in Net Worth definition (based on § 3.661, the current any more Improved Death Pension We had stated in § 5.415(a) that an rule regarding income reporting): ‘‘A claims from the surviving spouses of increase in a child’s net worth requires reporting period is a time period these deceased veterans. Moreover, if VA to reduce the payment amount of established by VA during which a VA does receive such a claim, it could Improved Pension. However, if the claimant or beneficiary must report to process the claim under the controlling child’s net worth is increased, the VA all income, net worth, and statutes, 38 U.S.C. 103(b) and 1541(f). removal of his dependency from the adjustments to income.’’ We also propose to remove initially beneficiary’s award may cause an We propose to revise § 5.420(a) to proposed § 5.430(b), which had increase in payment. Such a situation include that a claimant or beneficiary concerned the marriage-date may occur when the dependent child may report a change in income or net requirements of a surviving spouse. has income and the removal of the worth when the change occurs. The That paragraph was based on 38 U.S.C. child’s dependency and his or her claimant or beneficiary does not have to 103(b), which is not limited to Improved income causes an increase in the wait until the beginning of the next Pension. We propose to move the rule beneficiary’s award. We propose to reporting period to report the change. to § 5.200, ‘‘Surviving spouse: clarify that regardless of whether or not This change is consistent with current requirement of valid marriage to the removal of such child’s dependency VA practice. veteran.’’ results in a higher pension rate, the § 5.422 Effective Dates of Changes to § 5.432 Deemed Valid Marriages and effective date based on the change in net Annual Improved Pension Payment Contested Claims for Improved Death worth is the first day of the year after Amounts Due to a Change in Income Pension the year that net worth increased. This In §§ 5.432 and 5.433, we propose to change is consistent with current In paragraphs (b)(2) and (3) of initially delete the term ‘‘legal’’ as it was used in practice. proposed § 5.422, we used the term ‘‘required evidence’’ without explaining the initially proposed rule to describe a § 5.416 Persons Considered as what the evidence should prove. To surviving spouse. Although there is no Dependents for Improved Pension resolve this potential ambiguity, we explicit definition of ‘‘legal surviving We propose to remove the sentence, propose to revise paragraph (b)(2) by spouse’’ in current part 3, the term is ‘‘The child need not be living with the replacing ‘‘required evidence’’ with used to denote a spouse who was legally veteran or surviving spouse to be in ‘‘evidence showing the dependency’’. married to the veteran at the time of the custody’’, from initially proposed Likewise, we propose to revise (b)(3) by veteran’s death as contrasted with a § 5.416(b)(1) because the same replacing ‘‘required evidence’’ with deemed valid spouse. This distinction information is provided in what was ‘‘evidence showing the loss of a has no legal significance in § 5.432 or initially proposed § 5.417(d), now the dependent’’. § 5.433. For the same reason, we definition of ‘‘custody of a child’’ in propose to delete the term ‘‘lawful’’ § 5.423 Improved Pension before ‘‘surviving spouse’’ in § 5.539. proposed § 5.1. The rule is appropriately Determinations When Expected Annual located in that definition. It is not Income Is Uncertain § 5.434 Award or Discontinuance of necessary to § 5.416, which pertains to Award of Improved Death Pension to a We propose to provide a definition for persons considered as dependents. Surviving Spouse Where Improved ‘‘expected annual income’’ in the first We also propose to change Death Pension Payments to a Child Are sentence of § 5.423(a). We propose to ‘‘reasonably contributes’’ to ‘‘provides Involved reasonable contributions’’ in both define the term as ‘‘the annual income paragraphs (a)(3) and (b)(2), because it is a claimant or beneficiary anticipates In initially proposed § 5.434(a)(3) we the amount of the contributions that receiving during a given reporting stated: must be reasonable, not the way that the period.’’ When a surviving spouse establishes person provides those contributions. We propose to remove all references eligibility for Improved Death Pension but is in this subpart to the term ‘‘anticipated not entitled because his or her adjusted § 5.417 Child Custody for Purposes of income’’ and propose to replace it with annual income is greater than the maximum Determining Dependency for Improved ‘‘expected income’’. This proposed annual pension rate or because his or her net Pension change will be for consistency purposes. worth bars entitlement, VA will discontinue We propose to move the definitions of the child’s pension award effective the first § 5.424 Time Limits To Establish day of the month after the month for which ‘‘custody’’ and ‘‘legal responsibility’’ to VA last paid benefits to the surviving spouse. proposed § 5.1, defining ‘‘custody of a Entitlement to Improved Pension or To child’’. The remainder of this regulation Increase the Annual Improved Pension Consistent with current §§ 3.503(a)(9) contains four presumptions for Amount Based on Income and 3.657(b)(1), the reference to the determining dependency. We propose to In reviewing initially proposed surviving spouse at the end of simplify the regulation to eliminate § 5.424, we determined that this section § 5.434(a)(3) should refer instead to the redundancy without altering its can be clarified and shortened by minor child. We now propose to correct this meaning. reorganization and the removal of error. unnecessary verbiage. We propose to In addition, we propose to reorganize § 5.420 Reporting Periods for Improved make these changes. § 5.434(b) to improve clarity. Pension In initially proposed § 5.420, we § 5.430 Marriage Date Requirements § 5.435 Calculating Annual Improved stated, ‘‘When calculating adjusted for Improved Death Pension Pension Amounts for a Surviving Child annual income, VA counts income that Initially proposed § 5.430(a)(2)(i) In initially proposed § 5.435(a) we is anticipated or received during a referred to veterans of the Mexican parenthetically defined the term specific period, called a ‘reporting Border period and World War I. We ‘‘personal custodian’’ as ‘‘a person period.’ ’’ We have determined that it propose to remove these references legally responsible for the child’s would be helpful for readers to have a because there are no longer any support’’. We propose to add a

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definition of ‘‘custody of a child’’ as which contains VA’s definition of a inserting the phrase ‘‘for that calendar § 5.1. Therefore, the definition initially ‘‘Final decision’’ in proposed § 5.1. year’’ after ‘‘annual income limit’’ and proposed in this section is superfluous inserting the word ‘‘calendar’’ before § 5.461 Electing Improved Pension and we propose to remove it. ‘‘year effective January 1’’. These Instead of Old-Law Pension or Section revisions will remove ambiguity and B. Elections of Improved Pension; Old- 306 Pension clarify that VA measures income in Law and Section 306 Pension AL83 In the initially proposed rule, we calendar-year units. In a document published in the proposed to include § 5.461, ‘‘Electing Deletion of Withholding Provision, Federal Register on December 27, 2004, Improved Pension instead of Old-Law or Formerly Under 38 CFR 3.260(b), we proposed to publish in a new 38 CFR Section 306 Pension’’, in subpart F of Computation of Income part 5 VA regulations governing Old- part 5. However, upon further Law Pension, Section 306 Pension, and consideration, it would be more In addition, we note that under 38 elections of Improved Pension. 69 FR appropriate to place this regulation in CFR 3.260(b) (the current rule upon 77578. The title of this proposed subpart L, ‘‘Payments and Adjustments which § 5.478(a) is based), VA has the rulemaking was ‘‘Elections of Improved to Payments’’, along with other rules on authority to withhold payments if that Pension: Old-Law and Section 306 elections of veterans benefits as § 5.758. income will exceed the statutory limit. Pension’’ (RIN: AL83). The proposed Hence, we propose to include § 5.461 in However, this withholding provision regulations were based on current our proposed subpart L, initially only applied to new claims for Old-Law regulations in 38 CFR part 3, but were published in the Federal Register on Pension and Section 306 Pension. Since revised to reflect plain English and December 27, 2004. 69 FR 77578. such claims have been barred by statute updated to reflect current practice. We § 5.472 Rating of Income for Old-Law since 1979 (see Public Law 95–588, sec. provided a 60 day comment period that Pension and Section 306 Pension 306(a), 92 Stat. 2508 (1978)), there is no ended on February 25, 2005. We need to include the provision in part 5. Initially proposed § 5.472(b)(2) received submissions from two XII. Subpart G: Dependency and commenters. defined ‘‘payments’’ as ‘‘cash and cash equivalents (such as goods and other Indemnity Compensation, Death Terminology negotiable instruments) . . . ’’ We Compensation, Accrued Benefits, and propose to revise our definition by Special Rules Applicable Upon Death We mean to add the word ‘‘Pension’’ of a Beneficiary after ‘‘Old-Law’’ and ‘‘Section 306’’ replacing the term ‘‘goods’’ with whenever these two pension programs ‘‘checks’’. This change is made in order A. Dependency and Indemnity are mentioned together in a single to be consistent with our definition of Compensation Benefits AL89 ‘‘payments’’ in § 5.370(h) and § 5.531(b). sentence. For example, ‘‘Old-Law and In a document published in the Section 306 Pension’’ will be rewritten § 5.475 Gaining or Losing a Dependent Federal Register on October 21, 2005, as ‘‘Old-Law Pension and Section 306 for Old-Law Pension and Section 306 we proposed to revise Department of Pension.’’ This will help readers Pension Veterans Affairs (VA) regulations understand that these two pension For consistency purposes, we propose governing dependency and indemnity benefits are separate and distinct to revise the heading and the regulatory compensation (DIC) benefits, to be programs. text in § 5.475(b)(2) by replacing ‘‘on or published in a new 38 CFR part 5. 70 For consistency purposes in before December 31, 1978’’ with ‘‘before FR 61326. We provided a 60-day describing whether particular potential January 1, 1979’’. This change will comment period that ended December sources of revenue are considered by improve clarity in the application of 21, 2005. We received submissions from VA in calculating a beneficiary’s income effective dates and is consistent with the four commenters: Disabled American or net worth, we propose to replace the rest of part 5. Veterans, Vietnam Veterans of America, word ‘‘include’’ with ‘‘count’’ (or with National Organization of Veterans’ a commensurate substitute) and § 5.477 Effective Dates of Reductions Advocates, and one from a member of ‘‘exclude’’ with ‘‘does not count’’ (or and Discontinuances of Old-Law the general public. with a commensurate substitute). Pension and Section 306 Pension § 5.500 Proof of Death Comment Relating to a Different Portion In § 5.477(b), we propose to delete the Initially proposed § 5.500 described of This Rulemaking reference to ‘‘§§ 3.500 through 3.503’’ from the regulatory text and replace it the types of evidence VA will accept as One commenter suggested that a with a reference to § 5.705, the part 5 proof of death. We propose to revise this rating decision that reduces a rating regulation that lists all of the part 5 provision to explain that, where the rule during a period of hospitalization regulations governing the effective dates lists more than one type of evidence that should be considered void if notice of of reductions and discontinuances. We VA will accept as proof of death, VA a prior rating decision had not been sent propose to revise the regulatory text by requires the first-listed type of evidence, to a veteran at the veteran’s latest inserting the words ‘‘appropriate’’ and if obtainable. If the first-listed document address of record. The commenter used ‘‘as specified’’ in order to notify readers is not obtainable, VA will accept the her husband’s case as an example, that the provisions in § 5.705 will next-listed type of evidence that is stating that his 1990 reduction should indicate which effective dates, other obtainable. This clarification reflects be void because she alleges that VA did than those stated in paragraph (a), are VA’s established practice. With respect not provide her husband with notice of applicable to a particular case. to matters that are ordinarily a 1971 rating decision. This comment documented by official public records, deals with defective notice and the § 5.478 Time Limit To Establish such as death, VA’s long-standing effect it has on the finality of decisions. Continuing Entitlement to Old-Law practice is to require the official records Accordingly, this comment will be Pension or Section 306 Pension that VA considers most reliable to discussed with other comments We propose to revise the regulatory establish those facts, if such records are received for RIN 2900–AL87, ‘‘General text in § 5.478(a), Expected income available. We believe that it is helpful Provisions’’, in subpart A of this part, appears to exceed income limit, by to state this principle in proposed

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§ 5.500 and we propose to revise it The purpose of this sentence in the proposed § 5.510. To say that a survivor accordingly. In accordance with its duty proposed rule is to preclude the of a veteran must be qualified is to assist, VA will assist claimants as interpretation that a traumatic death in redundant of other VA provisions that necessary in seeking to obtain the types service is so sudden that it does not state the requirements that must be met of evidence needed to establish the fact produce a disability before death. This in order to be considered a dependent of death. provision is necessary because Title 38 of the deceased veteran. of the United States Code requires that In proposed § 5.510(b)(2), to be § 5.504 Service-Connected Cause of to be service-connected, a death in consistent with the Federal Register Death service must result from a disability Document Drafting Handbook, page 1– All four of the comments received incurred or aggravated in service. ‘‘The 19, we propose to change the order of concerned the provisions of initially term ’service-connected’ means . . . the references to list the United States proposed § 5.504. This proposed section that the death resulted from a disability Code first. In addition, we propose to defined a service-connected disability incurred or aggravated, in line of duty correct the authority citation at the end for purposes of determining entitlement in the active military, naval, or air of proposed § 5.510. to VA death benefits, and provided the service’’, 38 U.S.C. 101(16). For a § 5.511 Special Monthly Dependency rules for determining if a veteran’s death surviving spouse or dependent to be and Indemnity Compensation is service connected. The AL89 NPRM, eligible for many VA benefits due to a omitted the following sentence from 38 servicemember’s death in service, the We propose to revise initially CFR 3.312(a), ‘‘[t]he issue involved will person’s death must be a result of a proposed § 5.511(a) to clarify that be determined by exercise of sound disability ‘‘incurred or aggravated, in entitlement to this benefit is determined judgment, without recourse to line of duty in the active military, naval, based on whether the surviving spouse speculation, after a careful analysis has or air service’’. 38 U.S.C. 101(16); see or parent needs regular aid and been made of all the facts and also 38 U.S.C. 1310, 2307, 3500, and attendance. Determinations of the need circumstances surrounding the death of 3701. for aid and attendance will be made the veteran, including, particularly, We agree with the commenter that the under the criteria in proposed § 5.320. autopsy reports.’’ This language is sentence may be construed to be § 5.520 Dependency and Indemnity unnecessary in proposed § 5.504 restrictive if not read carefully. This is Compensation—Time of Marriage because it mainly restates the generally due primarily to use of the words Requirements for Surviving Spouses applicable principle that VA decisions ‘‘trauma’’ and ‘‘sudden’’. Accordingly, will be based on a review of the entire we propose to remove the phrases ‘‘from We propose to revise initially record. See 38 U.S.C. 5107(b) and 38 trauma’’ and ‘‘from the trauma’’ and the proposed § 5.520(b)(1)(iii) and (b)(2)(ii) CFR 3.102. We have stated this in word ‘‘sudden’’ in the subject sentence by adding the words, ‘‘was born to proposed § 5.4(b), ‘‘Claims adjudication in proposed § 5.504(b)(1)(ii). them’’ between ‘‘marriage or’’ and polices’’. Regarding avoiding The revised proposed sentence now ‘‘before the marriage’’ in both places it ‘‘speculation’’, we have stated this reads, ‘‘[f]or purposes of this section, appears. These changes are made to concept in proposed § 5.3(b)(6). VA will presume that a death that ensure that readers understand that the Regarding the ‘‘exercise of sound occurred in line of duty was preceded child VA is referring to is a child of a judgment’’, and conducting a ‘‘careful by disability.’’ This will make clear veteran and spouse, not a veteran’s analysis’’, these duties are inherent in VA’s intent that the presumption stepchild. This is the same wording any adjudication process and where a applies to all deaths that occur in line used in part 3. claimant disagrees with the judgment or of duty. We substituted ‘‘line of duty’’ In the NPRM to this rulemaking we analysis of a VA adjudicator, he or she for ‘‘in service’’ to reflect the stated that ‘‘Proposed § 5.520 is based may appeal the decision. We therefore requirement in 38 U.S.C. 105 and 1110 on portions of current § 3.54 and believe it is unnecessary to include this that disability must be incurred in the applicable statutory provisions. . .’’ language in our regulations. line of duty in order to be service However, it is also based on § 3.22(d), One commenter was concerned with connected. which is substantially the same as the provision in initially proposed Three commenters expressed concern § 3.54. § 5.504(b)(1)(ii) that states, ‘‘[f]or with the provisions of initially proposed §§ 5.521 Dependency and Indemnity purposes of this section, VA will deem § 5.504(c), regarding service connection Compensation Benefits for Survivors of a sudden death in service from trauma for the cause of death when the service- Certain Veterans Rated Totally Disabled to have been preceded by disability connected disability hastens death. The at Time of Death, and 5.523 from the trauma.’’ This commenter commenters stated that the proposed Dependency and Indemnity stated that the sentence we initially revisions in § 5.504 were more Compensation Rate for a Surviving proposed ‘‘is unnecessarily logically restrictive than the provisions in current Spouse convoluted and restrictive, is legally 38 CFR 3.312. To avoid such a insufficient, and is in fact altogether misinterpretation, we are retaining the In the NPRM, we reserved §§ 5.521 unnecessary.’’ He suggests as alternative provisions of § 3.312(c). Accordingly, and 5.523 as the eventual locations for language, ‘‘[f]or purposes of this section, we are inserting the exact wording of rules concerning entitlement to DIC for a death in service is service-connected § 3.312(c) into proposed § 5.504(c)(2). survivors of certain veterans rated [sic], provided the death was in line of totally disabled at the time of death and duty and was not due to the § 5.510 Dependency and Indemnity concerning the rates of DIC payments to servicemember’s own willful Compensation—Basic Entitlement surviving spouses. We explained that, misconduct.’’ Initially proposed § 5.510 stated that when the NPRM was issued, rulemaking We agree in part with the in order to be entitled to dependency was pending to amend the provisions in commenter’s concerns. Part of this and indemnity compensation a survivor part 3, Code of Federal Regulations, sentence is somewhat convoluted and of the veteran ‘‘must be otherwise involving those matters, and that we could be read as restrictive. We propose qualified’’ for this benefit. We propose would incorporate those part 3 to revise the sentence for the reasons to delete the terms ‘‘otherwise provisions in this final rule once the explained in the following paragraphs. qualified’’ and ‘‘qualified’’ from pending part 3 changes were made.

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Because those part 3 changes have now for service-connected disability that was proposed § 5.696, ‘‘Awards of been made, as explained below, we rated by VA as totally disabling for a dependency and indemnity propose to add the corresponding continuous period of not less than 1 compensation when not all dependents provisions in part 5. year immediately preceding death, if the apply’’. In preparing this proposed rule, VA issued a final rule in December veteran was a former prisoner of war we have determined that because it 2005 amending its part 3 regulations in who died after September 30, 1999. concerns only dependency and response to the decision in Nat’l Org. of Section 603 of Public Law 111–275, 124 indemnity compensation benefits, this Veterans’ Advocates, Inc. v. Sec’y of Stat. 2864, 2885 (2010) amended section section more logically belongs in part 5, Veterans Affairs, 314 F.3d 1373 (Fed. 1318(b)(3) by removing the requirement subpart G, which is titled, ‘‘Dependency Cir. 2003). This final rule (see 70 FR that the veteran have died after and Indemnity Compensation, Death 72211, Dec. 2, 2005) revised § 3.22(b) to September 30, 1999, so we have omitted Compensation, Accrued Benefits, and clarify the meaning of the phrase this requirement from § 5.521(a)(2)(iii). Special Rules Applicable Upon Death of ‘‘entitled to receive’’ for purposes of a Beneficiary’’. We therefore propose to determining whether a veteran’s § 5.524 Awards of Dependency and Indemnity Compensation Benefits to move this section into subpart G, survivors are entitled to benefits under renumbering it as proposed § 5.525. 38 U.S.C. 1318, ‘‘Benefits for survivors Children When There Is a Retroactive of certain veterans rated totally disabled Award to a Schoolchild § 5.530 Eligibility for, and Payment of, at time of death’’. This final rule also We propose to make changes to a Parent’s Dependency and Indemnity revised provisions previously in § 3.5(e) initially proposed § 5.524 to reduce Compensation relating to the rates of DIC payable to wordiness and enhance clarity. For surviving spouses and moved those example, paragraph (a), as initially We propose to correct the authority provisions into § 3.10. proposed, stated: ‘‘The total amount citation at the end of initially proposed VA completed another rulemaking in payable to the children, which varies § 5.530 so that the United States Code 2006, implementing section 301 of the according to the number of children, is sections are in chronological order. Veterans Benefits Improvement Act of divided and paid to the children in 5.533 Income Not Counted for Parent’s 2004. Section 301 amended 38 U.S.C. equal shares.’’ We propose to revise that Dependency and Indemnity 1311, Dependency and indemnity sentence to state: ‘‘The total amount VA Compensation compensation to a surviving spouse, by pays to a child depends on the number adding subsection (e) (amended to be of children, and the amount is paid to In the preamble for initially proposed subsection (f) by section 4 of Pub. L. each child in equal shares.’’ Further, we § 5.302, 70 FR 61326, 61336, (Oct. 21, 109–361, 120 Stat. 2062 (2006)), propose to add the term ‘‘currently’’ to 2005), we explained our omission of the providing a $250 increase in the paragraph (a)(1) to clarify that the first sentence of § 3.262(j)(2) as an monthly rate of DIC to which a exception stated in proposed § 5.524 unnecessary specific instance of a surviving spouse with one or more only applies when, at the time DIC is broader general rule in 5.302(a) that children below age 18 is entitled. The reestablished for the additional child, encompasses the specific rule. The increased rate is payable for the 2-year other children are receiving running DIC second sentence of § 3.262(e) is period beginning on the date awards. analogous to § 3.262(j)(2) and entitlement to DIC began and ends the We propose to delete the term unnecessary for the same reason. The first month after the month all children ‘‘eligible’’ as it applies to child in preamble to initially proposed of the surviving spouse attain age 18. proposed § 5.524. To state that explained our omission of the third This statutory change was incorporated dependency and indemnity sentence of § 3.262(e)(4). Without the as § 3.10(e)(4). See 71 FR 44915, Aug. 8, compensation is payable to an eligible third sentence, the fourth sentence is 2006. child is redundant of other VA moot without the third sentence, In anticipation of these regulatory regulations that state the requirements because it provides a process to changes, VA reserved §§ 5.521 and of a dependent. For this same reason, implement after implementing the third 5.523 in the NPRM for this regulation we propose to make similar changes in sentence. rewrite segment. We propose to proposed § 5.536 to the term ‘‘eligible incorporate the current versions of parents’’. § 5.535 Adjustments to a Parent’s §§ 3.22 and 3.10 (as amended), as We additionally propose to reword Dependency and Indemnity proposed §§ 5.521 and 5.523, paragraphs (a)(2) and (3) to enhance Compensation When Income Changes respectively. In addition, we propose to reader comprehension. The rewording remove the reference to, ‘‘§ 5.521 In reviewing the AL89 NPRM, we of proposed § 5.524(a) will make this determined that we failed to incorporate (Reserved) and § 5.523 (Reserved)’’. As regulation more comprehensible to the noted in the NPRM and this proposed § 3.660(b)(2) in initially proposed average reader. § 5.535. The concept of anticipated notice, the provisions of current Proposed § 5.524(b) deals with income is different from that of actual § 3.22(d) are incorporated in proposed retroactive payments and payment dates income. This is because a beneficiary’s § 5.520 and the provisions of current for additional children who successfully actual income may be less than his § 3.22(e) and (f) are incorporated in reestablish DIC entitlement. Upon anticipated income. VA may learn of proposed § 5.522(a), (b), and (c)(4). further review, we determined that this in any of the following ways: (1) Current 38 CFR 3.22(a)(2)(iii) rewording the paragraph would make it Actual income is reported by the parent implements 38 U.S.C. 1318(b)(3) which easier to understand. We intend no on an eligibility verification report states that VA will pay death benefits to change in the meaning of paragraph (b). the surviving spouse or children in the (EVR); (2) VA requests a statement from same manner as if the veteran’s death § 5.525 Awards of Dependency and the parent of their actual income at were service-connected if the veteran’s Indemnity Compensation When Not All anytime; or (3) The parent notifies VA death was not the result of his or her Dependents Apply of income changes on their own. own willful misconduct and at the time In NPRM AM06, ‘‘Payments and We therefore propose to insert the of death, the veteran was receiving, or Adjustments to Payments’’; 73 FR rules from § 3.660(b)(2) into proposed was entitled to receive, compensation 65212, Oct. 31, 2008, we included § 5.535.

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§ 5.536 Parent’s Dependency and to ‘‘dependency and indemnity B. Accrued Benefits, Death Indemnity Compensation Rates compensation’’ if it was used in a Compensation, and Special Rules In initially proposed § 5.536(d) we heading to a regulation section in the Applicable Upon Death of a Beneficiary intended only to restate current NPRM. We also propose to change the AL71 § 3.251(a)(4), but we inadvertently headings in proposed §§ 5.521 and In a document published in the misstated that provision. Section 5.535 accordingly. Similarly, Federal Register on October 1, 2004, we 3.251(a)(4) does not purport to apply ‘‘dependency and indemnity proposed to revise Department of only if there is one eligible parent. compensation’’ was changed to Veterans Affairs (VA) regulations Instead, it states that if a parent’s ‘‘dependency and indemnity governing accrued benefits and special remarriage ends, the parent will be paid compensation (DIC)’’ the first time it rules applicable upon death of a at the rate for one parent alone or for appears in each section, if we did not do beneficiary, to be published in a new 38 two parents not living together, so in the NPRM. We propose to make CFR part 5. 69 FR 59072. We provided whichever is applicable. This means this change in proposed § 5.531(c) and a 60-day comment period that ended that the parent will be paid at the ‘‘one the introductory paragraph to proposed November 30, 2004. We received parent’’ rate if there is no other eligible § 5.533. Likewise, we propose to change submissions from two commenters: parent, or at the ‘‘two parents not living ‘‘dependency and indemnity Vietnam Veterans of America and a together rate’’ if the other parent is alive. compensation’’ to ‘‘DIC’’ the second and member of the general public. Initially proposed § 5.536(d) limited this subsequent times it appeared in each rule to cases where there is only one § 5.538 Effective Date of Dependency parent and stated that VA will pay at the section, if we had not already done so and Indemnity Compensation Award ‘‘one parent’’ rate if the remarriage ends in the NPRM. We propose to make such or at the ‘‘two parents not living changes to proposed § 5.523(a) and In initially proposed AL71, we placed together’’ rate if the parent is separated (e)(4). all the dependency and indemnity compensation (DIC) effective date from his or her spouse. We propose to To clarify that only one parent is provisions at the end of subpart G, revise initially proposed paragraph (d) required to apply for DIC, not both, we ‘‘Dependency and Indemnity so that it is now consistent with propose to change the heading of the § 3.251(a)(4). Compensation, Death Compensation, undesignated center heading entitled, Accrued Benefits, and Special Rules Note Regarding § 5.573 Through § 5.579. ‘‘Dependency and Indemnity Applicable Upon Death of a Compensation—Eligibility In the NPRM for AL89, we included Beneficiary’’. We have determined that §§ 5.573 through 5.579. We received no Requirements and Payment Rules for they will be easier to locate if they comments on these sections. To cut Parents,’’ to, ‘‘Dependency and appear after the series of regulations on down on the length of this rulemaking, Indemnity Compensation—Eligibility DIC, rather than after the series of we chose to include those sections in Requirements and Payment Rules for a regulations on accrued benefits. the rule segment to the companion Parent’’. Also, where appropriate to Therefore, we propose to renumber the rulemaking, RIN 2900–AL71, Accrued make this requirement more apparent, sections initially proposed as §§ 5.567 Benefits and Special Rules Applicable we propose to change references from through 5.574 as §§ 5.538 through 5.545. Upon Death of a Beneficiary, published ‘‘parents’’ to ‘‘a parent,’’ except where We propose to revise initially as NPRM at 69 FR 59071, Oct. 1, 2004. the context clearly encompasses both proposed § 5.538 to identify dates as Any technical corrections or changes in parents or all parents in receipt of DIC. ‘‘effective dates’’ instead of ‘‘payment terminology made to these regulations To be consistent with other dates’’ to be consistent with other are included there. Thus initially regulations in part 5, we propose to provisions in part 5. proposed §§ 5.573 and 5.574 have been change the phrases, ‘‘[t]he amount to be In § 5.538(a)(1)(i), we propose to removed from this proposed subpart, as offset includes’’ and ‘‘[t]he amount to be change the phrase, ‘‘If VA receives a well as the reference to reserving offset excludes’’ to ‘‘VA will count in claim for [DIC] within one year from’’ to proposed §§ 5.575–5.579. the amount to be offset’’ and ‘‘VA will ‘‘If VA grants DIC based on a claim Technical Corrections and Changes in not count in the amount to be offset’’ in received no later than 1 year after’’. In Terminology each place they appeared in the NPRM proposing this rule, we incorrectly omitted the relevant event of VA The changes in terminology in this in initially proposed § 5.522(c)(1) proposed rulemaking are made through (4). For the same reason, in granting the benefit. In addition, because VA considers a claim for death primarily for purpose of achieving (c)(1) we propose to change ‘‘excluded’’ pension to also be a claim for DIC, it consistency throughout our part 5 to ‘‘not counted’’, in (c)(2) we changed could be misleading to imply that the regulations. Except as otherwise ‘‘[t]his includes’’ to ‘‘VA will also provided in this preamble, no claim must be for DIC. For the same count’’, and in (c)(3) we changed reasons, we propose to make substantive changes are intended by ‘‘included’’ to ‘‘counted’’. Similarly, in these changes made in terminology. conforming changes to paragraphs (a)(2), § 5.531(a) and (b), we propose to change (b)(1), (b)(2), (d)(1), and (d)(2) of § 5.538. According to paragraph 12.9 of the the word ‘‘included’’ to the phrase or In § 5.538(a)(1)(ii), we propose to add Government Printing Office Style word, ‘‘are counted’’ or ‘‘counted’’, as Manual, numerals rather than words are the words, ‘‘based on a report of actual appropriate. Finally, we propose to used when referring to units of death’’ to be consistent with current measurement and time. Therefore, we change the heading of initially proposed § 3.400(c)(1), the part 3 equivalent to substituted the numeral ‘‘7’’ for the § 5.533 from ‘‘Exclusions from income’’ this section, and to correct an omission word ‘‘seven’’ in proposed § 5.503(b). to ‘‘Income not counted for parent’s from the initially proposed rule. We also Likewise, we substituted the numeral dependency and indemnity propose to add the words, ‘‘any of the ‘‘1’’ for the word ‘‘one’’ in proposed compensation,’’ and in initially veteran’s following military § 5.520(b)(1)(ii) and (b)(2)(i). proposed § 5.533(i)(2), we propose to entitlements’’ and reformat the To be consistent in style with the rest change the phrase, ‘‘be excluded’’ to sentence. This revision will ensure that of part 5, we propose to change ‘‘DIC’’ ‘‘not be counted.’’ there is no confusion between military

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entitlements and other benefits titled § 5.540 Effective Date and Payment 21, 2005. See 70 FR 61326. To simplify allowances, allotments, or service pay. Adjustment Rules for Award or the material and eliminate redundancy, In § 5.538(d)(2), we propose to change Discontinuance of Dependency and we propose to combine proposed cross-references to §§ 5.230 and 5.696 to Indemnity Compensation to a Surviving §§ 5.535 and 5.571 into a single section, § 5.542. exceptions, in order to be as specific as Spouse Where Payments to a Child Are Involved possible and eliminate confusion. We § 5.543 Effective Date of Reduction or begin the proposed rule by stating In § 5.540 (initially proposed 5.569), Discontinuance Based on Increased ‘‘Except as otherwise provided in this We propose to reorganize this section Income: Parents’ Dependency and part’’ and end with the cross-references for clarity by incorporating much of the Indemnity Compensation in an attempt to imply that the cross- introductory material initially proposed In proposed § 5.543 (initially references are the exceptions. in paragraph (a) into the paragraphs that proposed 5.572), we propose to follow. This revision simplifies the In § 5.538(e), we propose to add reorganize the material into two section without changing the meaning paragraphs instead of four to simplify § 5.230 as an exception to correct an or intent. omission from the initially proposed the structure of the regulation. Also, we rule. § 5.541 Effective Date of Reduction of propose to change the language in a Surviving Spouse’s Dependency and initially proposed paragraph (b) stating § 5.539 Discontinuance of Dependency Indemnity Compensation Due to that a reduction or discontinuance and Indemnity Compensation to a Recertification of Pay Grade would be effective at ‘‘the end of the Person No Longer Recognized as the month in which income increased’’ to In § 5.541, (initially proposed 5.570), Veteran’s Surviving Spouse refer instead to ‘‘the first day of the we propose to delete paragraphs (a) and month after the month in which the In § 5.539 (initially proposed 5.568), (b) because those paragraphs were income increased or is expected to we propose to revise paragraph (a) so redundant of §§ 5.197, ‘‘Effective date of increase’’. We propose to revise the that it clearly requires the reduction or discontinuance of language to conform with our practice discontinuance of DIC payments to a Improved Pension, compensation, or in part 5 of referring to the first date a former payee when VA recognizes that dependency and indemnity new rate is paid instead of referring to a new payee is eligible for DIC based on compensation due to marriage or the last date on which a prior rate is remarriage’’, and 5.231, ‘‘Effective date the same veteran. In the initially paid. of reduction or discontinuance: child proposed rule, we inadvertently reaches age 18 or 23’’, which were §§ 5.544 Dependency and Indemnity addressed the effective date of such published as proposed on September 20, Compensation Rate Adjustments When discontinuance without also directing 2006. 71 FR 55052, 55067, 55073. We an Additional Survivor Files a Claim, that such discontinuance occur. also propose to change the title of the and 5.545 Effective Dates of Awards We propose to delete from paragraph regulation to accurately describe the and Discontinuances of Special Monthly (b) language referring to periods on or revised content. Dependency and Indemnity after December 1, 1962. Because part 5 One commenter suggested that VA Compensation will apply only prospectively, not should add language to § 5.541 (initially When these initially proposed rules retroactively, the language is proposed § 5.570(c)) to inform readers were published in the Federal Register unnecessary. that the reduction of DIC based on on October 1, 2004, we proposed to recertification of a pay grade to a level We also propose to revise the reserve §§ 5.573 and 5.574 for future lower than the one originally certified regulations. 69 FR 59072. In the second language in paragraph (b)(1) that had would not result in an overpayment of package of proposed rules for this stated that ‘‘the award to the former monthly DIC benefits paid to a veteran’s subpart G published on October 21, payee will be terminated the day survivors based on the pay grade 2005, we designated § 5.573 as preceding the effective date of the award previously in effect. We did not include ‘‘Effective date of dependency and to the new payee’’ to state instead that such language in the initially proposed indemnity compensation rate ‘‘the award to the former payee will be rule because a reduction under § 5.541 adjustments when an additional discontinued on the effective date of the will always involve a future and not a survivor files an application’’, and new payee’s DIC award’’. We propose to retroactive adjustment in DIC benefit § 5.574 as ‘‘Effective dates of awards and revise the language to conform to our payments. No overpayment is created discontinuances of special monthly practice in part 5 of referring to the first because of the prospective nature of the dependency and indemnity date that a new rate or benefit is paid, reduction. However, we propose to compensation.’’ 70 FR 61326, 61348. We instead of referring to the last date on reword the provision to clarify that the received no comments regarding these which a prior rate or benefit is paid. reduction will be ‘‘effective the first day two sections. As discussed above, we We propose to delete paragraph (b)(3), of the month after the month for which propose to renumber the sections, which had contained an exception to VA last paid the greater benefit’’. initially proposed as §§ 5.573 and 5.574, the effective-date provisions when the § 5.542 Effective Date of an Award or as §§ 5.544 and 5.545 respectively. We propose to move the exception discontinuance of DIC payments is due an Increased Rate Based on Decreased (stated in initially proposed § 5.573(e)) to a change in, or in the interpretation Income: Parents’ Dependency and referring to § 5.524 to the introductory of, the law or an administrative issue, Indemnity Compensation paragraph of § 5.544. This prominent from this regulation. That provision was In initially proposed § 5.571(c), we position will more effectively alert redundant of § 5.152, which was referred to time limits contained in a readers to the exception. published as proposed on May 22, 2007. ‘‘regulation that [would] be published in Also in § 5.544, we propose to delete See 72 FR 28769. a future Notice of Proposed paragraph (a)(2) and reorganize the Rulemaking’’ based on current remainder of paragraph (a) into a single § 3.660(b)(1). That regulation, § 5.535, paragraph. The condition contained in was published as proposed on October initially proposed paragraph (a)(2)—that

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payment to the additional survivor Specifically, when we initially 2 years of accrued benefits for deaths would reduce the benefit being paid to proposed the accrued-benefits occurring before December 16, 2003. We the other survivors—is always true regulations, we anticipated that they propose to make no changes based on when the benefit is DIC; therefore, would apply to all claims, including this comment because we do not have stating it as a condition is unnecessary those filed before December 16, 2003, the authority to change the regulations in proposed § 5.544. The language and those in which death of the as the commenter wants. However, as proposed in paragraph (a)(2) is derived beneficiary occurred before December discussed above, we propose to delete from current § 3.650(a) and is necessary 16, 2003. The proposed rules initially proposed § 5.556 because it was in that section because it applies to distinguished claims for accrued intended to apply only to claims based pension and compensation as well as benefits filed before December 16, 2003, upon the death of a beneficiary DIC. from claims for accrued benefits filed on occurring before December 16, 2003. or after that date. The rules also In § 5.545(a)(2), we propose to delete § 5.550 [Reserved] the word ‘‘basic’’ from before ‘‘DIC’’. contained effective dates relevant to the Part 5 will not use the term ‘‘basic DIC’’ distinction between claims filed before In § 5.550, we initially proposed to distinguish DIC from special monthly versus after December 16, 2003. We several definitions. We have determined DIC because use of the term ‘‘basic received comments concerning the that the definitions are either DIC’’, which is not used elsewhere in substance of these issues, but these unnecessary or more appropriately part 5, was likely to confuse a reader. comments are no longer relevant placed elsewhere in part 5. So we propose to delete the initially proposed Instead, we will distinguish the benefits because we have removed the text and reserve § 5.550. by referring to ‘‘DIC’’ and ‘‘special provisions. Part 5 will not be in effect before We propose to move the definition of monthly DIC’’. We also propose to ‘‘accrued benefits’’ to § 5.1, the simplify the paragraph by eliminating 2013. A claim for accrued benefits must be filed no later than 1 year after the definition of ‘‘claim for benefits pending initially proposed paragraph (a)(2)(i). on the date of death’’ to § 5.1, and the Initially proposed paragraph (a)(2) date of the beneficiary’s death. Therefore, part 5 will not apply to definition of ‘‘evidence in the file on the provided that the effective date would date of death’’ to § 5.1 because these be ‘‘the later of the following dates: (i) claims for accrued benefits based on a death before 2004. We propose to revise definitions apply to all of part 5. [t]he effective date of the . . . DIC We initially proposed a definition of award, or (ii) [t]he date entitlement to the rules accordingly. For the above reason, we propose to ‘‘deceased beneficiary’’ to distinguish special monthly DIC arose.’’ Unless the revise the definition of ‘‘accrued that person from the living beneficiary two dates are the same, the date benefits’’ (initially proposed in § 5.550, claiming survivor’s benefits. See 69 FR entitlement to special monthly DIC now in proposed § 5.1) and delete 59076, Oct. 1, 2004. We have since arose will always be the later date, so it initially proposed §§ 5.556, 5.558, and concluded that the definition is is unnecessary to refer to the effective 5.559. As discussed further below, we superfluous because it adds nothing to date of the DIC award. also propose to delete initially proposed the plain meaning of the term ‘‘deceased We propose to redesignate initially § 5.554. Because we are proposing to beneficiary’’. Where the regulations proposed § 5.574(a)(3), which was based delete initially proposed §§ 5.554 and refer to a ‘‘deceased beneficiary’’, the on current § 3.402(c)(2) and the last 5.556, we propose to renumber term is clear in context. sentence of § 3.404, as a new paragraph proposed § 5.555 as § 5.554, and The initially proposed definitions of § 5.545(c). We have also reworded the proposed § 5.557 as § 5.555. We propose ‘‘child’’ and ‘‘dependent parent’’ paragraph in order to specify that to reserve §§ 5.556, 5.557, 5.558, and contained references to the general special monthly dependency and 5.559. definitions of those terms (contained indemnity compensation based on the One comment pertained to initially elsewhere in part 5) and rules limiting need for aid and attendance will not be proposed § 5.556 and its 2-year the application of the general paid if the surviving parent or surviving limitation on the payment of accrued definitions for purposes of accrued spouse is receiving hospital care in his benefits on cases in which the benefits. The references to the general or her own right as a veteran. The beneficiary had died before December definitions are unnecessary, and the rewording of this paragraph is made for 16, 2003. The commenter explained that rules limiting the definitions are more clarity. she was a surviving spouse receiving appropriately placed in § 5.551(a). We Changes From Proposed §§ 5.550 dependency and indemnity therefore propose to revise the rule Through 5.559 Based Upon a Change in compensation under 38 U.S.C. 1151 limiting the definition of ‘‘child’’ to the Implementation of Part 5 because of a death caused by VA more accurately reflect the content of medical treatment and that the veteran current § 3.1000(d)(2) upon which the When we began writing part 5, we had been receiving VA disability rule is based. planned to remove part 3 from title 38, compensation during his lifetime. The Similarly, the initially proposed CFR, such that all claims for benefits, commenter felt that where VA medical definition of ‘‘surviving spouse’’ and the administration of such benefits, care had hastened a veteran’s death so contained a reference to the general would be governed by part 5. that the veteran did not live until definition contained elsewhere in part 5 Accordingly, many of the part 5 December 16, 2003, VA should pay the and a rule limiting the application of the regulations were written and proposed full amount of accrued benefits without general definition for purposes of with that concept in mind. Since then, regard to the 2-year limitation. The accrued benefits. The reference to the we determined that it would be better to Veterans Benefits Act of 2003, Public general definition is unnecessary, and retain the part 3 regulations for the Law 108–183, sec. 104, 117 Stat. 2651, the rule limiting the definition is more adjudication of claims received before 2657, was signed into law on December appropriately placed in §§ 5.551(b) and the applicability date of the part 5 16, 2003, and removed the 2-year 5.566(d)(1). In relocating the rule, we regulations. Thus, we would apply the limitation on payment of accrued propose to not repeat the language part 5 regulations only to claims benefits with respect to deaths occurring contained in initially proposed received on or after the applicability on or after that date. See 38 U.S.C. 5121. § 5.550(h)(2)(i) regarding date-of- date of the part 5 regulations. VA has no authority to pay more than marriage requirements for DIC and

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death compensation. Although initially not pay for the burial, it would be unfair §§ 5.564, ‘‘Cancellation of checks mailed proposed § 5.550(h)(2)(i) was based on a not to reimburse them for the health to deceased payee; payment of such reference to date-of-marriage care bills. We are changing the initially funds as accrued benefits’’, and 5.592, requirements in § 3.1000(d)(1), a proposed language from ‘‘and/or’’ to ‘‘Awards under Nehmer Court orders for surviving spouse could never claim simply ‘‘or’’ because this term includes disability or death caused by a accrued benefits based on DIC, so the ‘‘and’’. For this same reason, we are condition presumptively associated language was superfluous. making similar changes in proposed with herbicide exposure.’’ We therefore As stated in the preamble of the AL71 §§ 5.566(d)(4), and 5.567(a)(4). propose to delete § 5.552(a) and NPRM, the U.S. Court of Appeals for We propose to clarify § 5.551(g) to redesignate the other paragraphs Veterans Claims in Bonny v. Principi, 16 reflect VA’s long-standing policy that if accordingly. Vet. App. 504 (2002) interpreted 38 a preferred potential claimant fails to We also propose to delete the cross U.S.C. 5121(a) as establishing a class of file a claim, VA will not pay his or her reference to § 3.152(b) that was benefits known as ‘‘benefits awarded, share of accrued benefits to a person contained in initially proposed but unpaid at death’’. 69 FR 59072, having an equal or lower preference. § 5.552(c)(3). Cross-referencing § 3.152, 59074, Oct. 1, 2004. Although we Similarly, if a preferred potential or its part 5 counterpart, § 5.52, would initially proposed to define ‘‘benefits claimant waives rights to accrued not be useful to the reader. The portions awarded, but unpaid at death’’ in benefits, VA will not pay his or her of those regulations pertinent to claims proposed § 5.550, we have determined share of accrued benefits to a person for accrued benefits are incorporated in that it is unnecessary to include rules on having an equal or lower preference. VA § 5.552(b). such benefits in part 5. As stated in the will only pay the accrued benefits to Deletion of Proposed § 5.554 preamble to RIN 2900–AL71, ‘‘These someone else if, within the 1-year proposed rules also apply to claims for period to file a claim for accrued We propose to delete initially benefits awarded, but unpaid at death, benefits, the preferred potential proposed § 5.554. First, we propose to if the deceased beneficiary died prior to claimant dies, forfeits entitlement, or move the material from initially December 16, 2003, and a claim for such otherwise becomes disqualified. In such proposed § 5.554 concerning school benefits was pending on December 16, a case, the next-in-line (or equal) person vacation periods to § 5.551(a)(1)(ii). We 2003.’’ Any claim pending on that date must file a timely claim. propose to revise the provision to more would be processed under part 3, not The statute, 38 U.S.C. 5121, clearly and simply state the rule. part 5, so there is no need to include authorizes VA to pay accrued benefits We propose to eliminate the provision such provisions in part 5. We therefore only to ‘‘the living person first listed’’ in in the initially proposed rule which propose to remove all references to the hierarchy set forth in section stated that ‘‘school confirmation of ‘‘benefits awarded, but unpaid at death’’ 5121(a)(2). VA has consistently evidence of school attendance is not from part 5. interpreted ‘‘the living person first required to support a claim’’. This listed’’ as an instruction to pay only that provision was intended to prevent VA § 5.551 Persons Entitled to Accrued person, so long as he or she is alive. employees from requiring proof of Benefits Because a claim for accrued benefits school attendance in claims for accrued In § 5.551(c)(2) and (d)(1), we propose may be filed up to 1 year after the benefits where such evidence was to add the sentence, ‘‘[i]f there is no veteran’s death, however, we permit a already of record. This might occur, for eligible claimant, such accrued benefits claimant lower in the hierarchy to file example, when the child was already are payable to the extent provided in a claim if the person above them dies listed as a dependent on the veteran’s paragraph (f) of this section.’’ We during that 1 year. We also liberally award or was receiving educational propose to add this sentence for interpret the statute to authorize benefits under 38 U.S.C. chapter 35. consistency with paragraphs payment of accrued benefits to a person There are no similar provisions § 5.551(e)(1) and (f) and to ensure lower in the hierarchy when the regarding other types of proof in claims proper disposition of the accrued person(s) above them is involuntarily for accrued benefits, and it is benefits. disqualified, not withstanding that the unnecessary to have a regulation We propose to clarify initially person is still alive because, as a legal instructing VA employees to refrain proposed § 5.551(e), now redesignated matter, such person is treated as if he or from requesting duplicate evidence. as paragraph (f). Title 38 CFR she were dead for purposes of § 5.554 VA Benefits Payable as 3.1000(a)(5) uses the phrase ‘‘last determining entitlement to benefits. sickness or burial’’ instead of ‘‘last We propose to make similar revisions Accrued Benefits sickness and burial’’. However, in to § 5.566(e)(3) based on VA’s consistent We propose to revise the heading of initially proposed § 5.551(e), we used interpretation of ‘‘the following persons § 5.554 (initially proposed as § 5.555) so the phrase ‘‘last illness and/or burial’’ living at the time of settlement, and in that it is no longer phrased as a without providing an explanation for the order named’’ as used in the question, and so that it more completely this change. Title 38 U.S.C. 5121(a)(6) authorizing statute, 38 U.S.C. 5502(d). identifies the subject matter of the states, ‘‘accrued benefits may be paid section. . . . to reimburse the person who bore § 5.552 Claims for Accrued Benefits In § 5.554(a)(10), we propose to the expense of last sickness and burial.’’ In initially proposed § 5.552(a), we correct the citation to 10 U.S.C. chapter VA interprets the word ‘‘and’’ as used noted that § 5.552 did not apply to 1606 (as initially proposed, it was ‘‘10 in the statute to mean ‘‘or’’. We do not claims for the proceeds of a benefit U.S.C. 1606’’), and we propose to add believe that Congress intended to check that the deceased beneficiary did veterans’ educational assistance under require that a person have paid not negotiate before death or to awards 10 U.S.C. chapter 1607 to the list of expenses of both the last illness and under the Nehmer court orders for potentially qualifying benefits. Section burial in order to qualify for some disability or death caused by a 527 of Public Law 108–375 established reimbursement. For example, if a person condition presumptively associated an additional educational assistance expended their savings paying for with herbicide exposure. These scope program, educational assistance for health care bills resulting from the provisions are unnecessary because they certain reserve component members veteran’s last illness and therefore could are redundant of material contained in who performed active military service

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under the provisions of 10 U.S.C. such that a person wishing to receive fact there is no such time limit. Second, chapter 1607. See 118 Stat. 1811, 1890– accrued benefits must file a claim for proposed paragraph (b) provided that 94 (2004). This new program results in such benefits. there is no time limit for filing a claim periodic monthly benefits that are paid We propose to revise the title and to obtain the proceeds of the checks or under laws administered by the paragraph (a) of § 5.564. First, we for furnishing evidence to perfect a Secretary. propose to clarify that VA is only claim. It is unnecessary to state this authorized to pay the accrued benefits § 5.555 Relationship Between Accrued- negative proposition (that is, that there represented in a check mailed to a is no deadline) because this language Benefits Claims and Claims Filed by the deceased payee for a period during Deceased Beneficiary might mislead readers into believing which the payee was alive up to at least that there is a requirement to file a claim We propose to revise paragraph (a) of the last day of the period. As initially for the proceeds of VA checks under this renumbered section (initially proposed, the regulation stated that it § 5.564, when in fact there is no such proposed as § 5.557) to clarify the did not apply to benefits for ‘‘the month requirement. distinction between, and relationship of, in which the beneficiary died’’, but did accrued-benefits claims and claims filed not clearly identify the periods to which § 5.565 Special Rules for Payment of by the deceased beneficiary. the regulation could apply. Moreover, VA Benefits on Deposit in a Special Deposit Account When a Payee Living in §§ 5.560–5.563 [Reserved] this language was not technically correct, because a payee could die on a Foreign Country Dies We propose to delete the initially the last day of the period and still be In § 5.565(b)(1) and (2), we propose to proposed rules concerning death covered by the statute, which explicitly add the words ‘‘in equal shares’’ at the compensation (proposed §§ 5.560 applies when the payee died ‘‘on . . . the end of each paragraph, to clarify that through 5.562) and reserve §§ 5.560 last day of the period.’’ payment to the children of the veteran through 5.562 for later use. There are Second, we propose to clarify that this or children of the surviving spouse is to fewer than 300 beneficiaries currently regulation may apply to multiple checks be in equal shares. The authorizing receiving death compensation. VA has received by the deceased payee. This is statute, 31 U.S.C. 3330, is not specific in not received a claim for death clear in the current rule, 38 CFR this regard, but payment in equal shares compensation in over 10 years, and we 3.1003(a)(1), but was not clear in § 5.564 is consistent with VA practice and do not expect to receive any more as initially proposed. provides a simple and fair rule for claims. However, should VA receive Third, the initially proposed rule administering payments. such a claim, it could process the claim referred several times to ‘‘non- Current § 3.1008, on which initially under the controlling statute, 38 U.S.C. negotiated’’ checks, which could have proposed § 5.565 was based, contains no 1121 (for survivors of wartime veterans) been read to be unnecessarily limiting statutory authority. In our initially or 1141 (for survivors of peacetime because VA may also pay funds that are proposed rule, we listed 31 U.S.C. 3329 veterans). Except for one small group of recovered after a check was negotiated and 3330 and 38 U.S.C. 6104 as the beneficiaries, death compensation is by someone other than the payee. (In the authority citations. In reviewing this payable only if the veteran died before one remaining instance, we use the term rule, we have determined that section January 1, 1957. Because of the small ‘‘unnegotiated’’ instead of ‘‘non- 6104 does not provide statutory number of beneficiaries of death negotiated’’ to be consistent with prior authority for § 5.565 and that additional compensation, the provisions opinions by VA’s Office of General authority is provided by 38 U.S.C. 5309. concerning death compensation do not Counsel. See, for example, VA General We propose to correct this authority need to be carried forward to part 5. Counsel’s Opinion, VAOPGCPREC 8– citation appropriately. Additionally, we have determined 96, 61 FR 66749 (Sept. 26, 1996). that the rule initially proposed as Finally, we propose to move initially § 5.566 Special Rules for Payment of § 5.563, ‘‘Special rules when a proposed paragraph (d), concerning Gratuitous VA Benefits Deposited in a beneficiary dies while receiving payment to the deceased payee’s estate, Personal Funds of Patients Account apportioned benefits’’, relates to into paragraph (a), for organizational When an Incompetent Veteran Dies apportionments more than to accrued reasons. We propose to clarify § 5.566(d)(3) by benefits so we propose to move it to As revised, paragraph (a) will more adding ‘‘on the date of the veteran’s subpart M, ‘‘Apportionments to closely track the statutory language and death’’. Similar language is contained in Dependents and Payments to accurately represent the current rule in current § 3.1009(a)(3) upon which the Fiduciaries and Incarcerated 38 CFR 3.1003; it will not represent a initially proposed rule was based, and Beneficiaries’’. We propose to reserve departure from VA’s current practice the phrase should have been included § 5.563 for later use. and interpretation of 38 U.S.C. 5122. in the proposed rule. We also propose to delete initially Paragraph 7 of VA General Counsel’s § 5.564 Cancellation of Checks Mailed proposed paragraph (b) and redesignate opinion VAOPGCPREC 06–91, 56 FR to a Deceased Payee; Payment of Such the remaining paragraphs accordingly. 25156 (June 3, 1991), states that: Funds as Accrued Benefits As initially proposed, paragraph (b) was 7. Interim Issue (CONTR–169), dated Under 38 U.S.C. 5122, VA must pay, comprised of two unnecessary negative January 13, 1960, providing necessary in accordance with the hierarchy of propositions, based on current instructions for the fiscal implementation of payments of accrued benefits, the § 3.1003(a)(1). First, proposed paragraph PL 86–146, provides in paragraph D.3 in amount of benefits represented in a (b) provided that there is no limit on the pertinent part: ‘‘check received by a payee in payment retroactive period for which payment of ‘‘a. Immediately upon death of a veteran of accrued benefits . . . if the payee the amount represented by the checks who has been adjudged or rated incompetent, died on or after the last day of the may be made. It is unnecessary to state the balance in the Personal Funds of Patients period covered by the check.’’ In this negative proposition, and this account will be analyzed to determine the source thereof, i.e., funds derived from addition, VA may pay such benefits if language might mislead readers into gratuitous benefits deposited by the VA the check was wrongly negotiated, but believing that there is an unstated time under laws administered by the VA or from the funds are recovered. In all other limit on the retroactive period of an other sources. For this purpose gratuitous cases, 38 U.S.C. 5121(c) would apply, award under other sections, when in benefits are defined as all benefit payments

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under laws administered by the VA except parent, spouse, or the veteran. This monthly pension, which is set forth in insurance payments (Servicemen’s Indemnity phrasing is easier to understand and the next paragraph. We were concerned benefits are not insurance payments).’’ apply. that as written, initially proposed We therefore propose to replace paragraph (b), which stated that ‘‘Medal XIII. Subpart H: Special and Ancillary ‘‘gratuitous benefits’’ with the phrase of Honor pension will be awarded by Benefits for Veterans, Dependents, and ‘‘all benefits except insurance Survivors VA once the certification under payments’’ in § 5.556. For this same paragraph (a) of this section is provided reason, we propose to make this change In a document published in the to VA’’, could have been misinterpreted throughout part 5. Federal Register on March 9, 2007, we to provide an effective date. proposed to revise VA regulations §§ 5.567 Special Rules for Payment of In paragraph (b), we assign the governing special and ancillary benefits effective date of monthly payment of Old-Law Pension When a Hospitalized for veterans, dependents, and survivors, Competent Veteran Dies, and 5.568 such pension based on the date that the to be published in a new 38 CFR part servicemember or veteran entitled to the Non-Payment of Certain Benefits Upon 5. 72 FR 10860. We provided a 60-day Death of an Incompetent Veteran pension files the appropriate form with comment period that ended May 8, the appropriate service department. In the initially proposed rule for 2007. We received submissions from Although we have generally interpreted subpart G, we did not include the two commenters: the Disabled American 38 U.S.C. 5101(a) to require claimants provisions from part 3 concerning Veterans and a member of the general for VA benefits to file a claim in the payment of Old-Law Pension benefits public. form prescribed by VA, that statute does withheld from hospitalized competent Misdirected Comment not apply to claimants for the Medal of and incompetent veterans who die Honor pension, because the Secretary of One commenter submitted a comment before payment is made, as found in the appropriate service department, and that states that it is intended for this §§ 3.1001 and 3.1007. This omission not VA, authorizes payment of the regulatory package, RIN 2900–AL84, but was inadvertent and we now propose to Medal of Honor pension. 38 U.S.C. it actually applies to RIN 2900–AL71. include these provisions as §§ 5.567 and 1561(c). Therefore, no additional claim The issues raised in this comment are 5.568. to VA is necessary to establish In § 5.567(b), we are not including addressed in the portion of this entitlement to the Medal of Honor language equivalent to current preamble relating to RIN 2900–AL71. pension. § 3.1001(b)(1) stating, ‘‘[t]here is no time § 5.580 Medal of Honor Pension limit on the retroactive period of an We propose to redesignate initially award’’. It is unnecessary to state this Section 5.580 concerns Medal of proposed paragraph (c) as (b), initially negative proposition, and this language Honor pension. Throughout § 5.580, we proposed paragraph (d) as (c), and might mislead readers into believing propose to change the initially proposed initially proposed paragraph (e) as (d). that there is an unstated time limit on word ‘‘person’’ to ‘‘servicemember or We changed a phrase in proposed (c)(1) the retroactive period of an award under veteran’’, because only servicemembers [now (b)(1)] from ‘‘application for other sections when there is no such and veterans can qualify for that benefit. placement on the Medal of Honor Roll’’ time limit. The second sentence of initially to ‘‘form requesting placement on the Current § 3.1007 states that, ‘‘The proposed § 5.580(a) stated, ‘‘After a Medal of Honor Roll’’. We have term ‘dies before payment’ includes person has been placed on the Medal of previously proposed, for VA purposes, cases in which a check was issued and Honor Roll, and if such person has that ‘‘‘application’ means a specific form the veteran died before negotiating the indicated a desire to receive the Medal required by the Secretary that a claimant check’’. Although there is no such of Honor pension, the Secretary must file to apply for a benefit’’ (§ 5.1). provision in § 3.1001, VA’s practice has concerned will provide VA with a The statute authorizing the Medal of been to apply this principle to that certified copy of the certificate setting Honor Roll provides for placement on section as well. This is reflected by the forth such person’s right to the Medal of the roll ‘‘[u]pon written application,’’ 38 fact that payments under both §§ 3.1001 Honor pension.’’ We propose to delete U.S.C. 1560(b), ‘‘in the form . . . and 3.1007 are excluded from VA’s this sentence, which seemed to prescribed by the Secretary concerned’’. general rule on unnegotiated checks. delineate administrative duties of the Although either ‘‘application’’ or ‘‘form’’ See 38 CFR 3.1003(c). We therefore service departments. The sentence did would be reasonable and accurate terms propose to add paragraph (d) to § 5.567 not require or provide for any VA derived from the statute, we propose to stating that the rule applies to ‘‘cases in action. We leave it to those departments change ‘‘application’’ to ‘‘form’’ in which a check was issued and the to establish appropriate procedures to paragraph (b)(1) to preserve the veteran died before negotiating the administer these duties as, for example, distinction between ‘‘application’’ as we check.’’ 32 CFR 578.9(c) does for the Department define it for VA purposes and any other of the Army. For VA’s purposes, it is use of the term. Changes in Terminology necessary to note only that VA receipt Initially proposed § 5.580(c)(3) stated We propose to make several changes of a certified copy of the certificate from that VA would pay a lump sum ‘‘to each to the wording throughout this portion the service department is a prerequisite person who is receiving or who in the of the regulations. For example, we to an award of Medal of Honor pension. future receives a Medal of Honor propose to change both ‘‘prior to’’ and We propose to move initially pension’’. If a veteran ‘‘is receiving’’ a ‘‘preceding’’ to ‘‘before’’, and we proposed paragraph (b) into paragraph Medal of Honor pension at the time that propose to change ‘‘prior’’ to (a) to emphasize that VA cannot this regulation becomes effective, then ‘‘previous’’. adjudicate entitlement to placement on he or she will already have received the We propose to change ‘‘day following the Medal of Honor Roll or to a lump-sum payment. We therefore the date of last payment to the certificate establishing the right to propose to revise the sentence to beneficiary’’ to ‘‘first day of the month Medal of Honor pension. VA provide a lump-sum payment ‘‘to each after the month for which VA last paid adjudicates only the amount of the servicemember or veteran who receives benefits to the beneficiary’’, where initial payment (that is, the lump-sum a Medal of Honor pension’’. This change ‘‘beneficiary’’ represents either a child, payment) and of the effective date of the is needed because part 5 will apply only

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to new claims, and not to existing § 5.583 Special Allowance Under 38 under part 5, there is no need to include entitlements. U.S.C. 1312 this paragraph. We propose to move the The initially proposed text also stated In § 5.583(d), we propose to add, language of (d)(1) into paragraph (a). that the lump-sum payment ‘‘will be ‘‘after VA receives a claim’’ to clarify § 5.587 Minimum Income Annuity and based on the monthly Medal of Honor that the claimant must file a claim to Gratuitous Annuity pension rates [in effect during a obtain the benefit. We propose to revise the regulation prescribed period].’’ The phrase ‘‘will be We propose to make a few changes to text of initially proposed § 5.587 for based on’’ was potentially confusing. § 5.583(e) to enhance clarity and reduce clarity. We propose to change the text to read, ambiguity. We also propose to correct In initially proposed § 5.587(a)(1), the ‘‘VA will calculate the amount of the the reference to Subpart E, so that the reference to the citations to the sections lump-sum payment using the Medal of text will correctly direct the reader to of Public Law 92–425 were mistakenly Honor pension rates in effect for each Subpart K. We also propose to add the written as ‘‘4(a)(2) and (3)’’. We propose year of the period for which the statutory authority 38 U.S.C. 107, which to correct this error by changing the retroactive payment is made.’’ is the statutory authority for citations to ‘‘4(a)(1) and (2)’’, as stated § 5.583(b)(2). § 5.581 Awards of VA Benefits Based in 38 CFR 3.811(a)(1). Further, we on Special Acts or Private Laws § 5.584 Loan Guaranty for a Surviving propose to reword the end of paragraph Spouse: Eligibility Requirements (c) to clarify its meaning. The initially In initially proposed § 5.581(b)(2), we proposed rule read, ‘‘An individual . . . had included the parenthetical In § 5.584, we propose to change the shall be considered eligible for pension definition of ‘‘pending claim’’. We initially proposed phrase ‘‘may be for purposes of determining eligibility propose to delete this definition as we extended’’ to ‘‘will be extended’’ to for the minimum income annuity even have already defined ‘‘pending claim’’ clarify that the action is not though as a result of adding the amount in § 5.57(d). In addition, we clarified discretionary. We also propose to insert of the minimum income annuity that the claim must be pending ‘‘at the the phrase, ‘‘all of the following authorized under Public Law 92–425 as time that the special act becomes conditions are met’’ at the end of the amended to any other countable effective.’’ This change makes the introductory sentence and redesignate income, no amount of pension is due.’’ provision more explicit. the paragraphs to enhance clarity and The reworded version reads, ‘‘A person reduce ambiguity of the section. . . . will still be considered eligible for We propose to change § 5.581(c)(1) to In § 5.584(b)(2), we propose to add improve readability. pension for purposes of determining that a veteran’s death treated by VA ‘‘as eligibility for the minimum income We propose to change § 5.581(c)(2) to if’’ it were service connected, under 38 annuity, even though no amount of make clear that the rule pertains to a U.S.C. 1318, does not qualify the pension is payable after adding the period of service rather than to a veteran’s surviving spouse for loan minimum income annuity, authorized specific date. guaranty certification. under Public Law 92–425, 86 Stat. 706, Initially proposed § 5.581(d)(1) stated, We also propose to revise initially as amended, to any other countable ‘‘VA will apply and will not change, proposed § 5.584(e) to clarify that this income.’’ . . . the rate, effective date, and section does not apply if the claimant is Public Law 92–425 authorizes discontinuance date that is specified in a surviving spouse who is eligible for a payment of benefits for commissioned a special act.’’ We propose to remove loan guaranty benefit as a veteran in his officers of the Public Health Service and ‘‘and will not change’’ because it merely or her own right. the National Oceanic and Atmospheric restates the fact that ‘‘we will apply’’ the § 5.586 Certification for Dependents’ Administration. The two agencies that elements of the special act addressed in Educational Assistance govern these officers were not paragraph (d)(1). This will make the rule referenced in part 3. We propose to more readable without changing its In § 5.586, ‘‘Certification for correct this omission in part 5 by adding meaning. dependents’ educational assistance’’, the Department of Health and Human paragraph (c)(2), we propose to change The initially proposed text in Services as well as the Department of the reference to 38 CFR 3.361 to its part Commerce in § 5.587(a)(1). § 5.581(d)(2) stated that the effective 5 counterpart, § 5.350. Current §§ 3.358 date is determined in accordance with and 3.800 apply to claims under 38 § 5.588 Special Allowance Payable the applicable law, but it did not state U.S.C. 1151(a) that VA received before Under Section 156 of Public Law 97–377 which law. We propose to include a October 1, 1997. Because part 5 will In § 5.588(a)(1), we propose to change cross reference to § 5.152, which apply only to future claims, we will not the regulation text to clarify that VA implements 38 U.S.C. 5110(g), to clarify repeat the provisions of current §§ 3.358 makes the determination of eligibility. what date to apply in these situations. and 3.800 in part 5. In § 5.588(e), we propose to eliminate In § 5.581(e)(1), we propose to add the Initially proposed § 5.586(a) failed to the terms ‘‘formal and informal’’ from terms, ‘‘hospital, domiciliary, or nursing state who is potentially eligible to the initially proposed title. We have home care’’ to more accurately describe receive dependents’ educational already defined the term ‘‘claim’’ in the content of several sections cited. assistance. Accordingly, we propose to § 5.1 as a formal or informal Similarly, in § 5.581(e)(2), we propose to add ‘‘payable to a veteran’s spouse, communication requesting a add the phrase, ‘‘or . . . while a fugitive surviving spouse, or child,’’ after determination of entitlement. Likewise, felon’’ to more accurately describe the ‘‘education benefit’’ to clarify who is we refer to filing an ‘‘application’’ rather content of several sections cited. We potentially eligible for this benefit. than ‘‘Formal claims . . . on a form also propose to include in § 5.581(e)(2) Also in § 5.586, we propose to remove prescribed by the Secretary’’, because that payments will be suspended while paragraph (d)(2) and (3), which merely we have already defined ‘‘application’’ the veteran is a fugitive felon. We also cross referenced the definitions of in § 5.1. propose to add 38 U.S.C. 5313B, ‘‘spouse’’ and ‘‘surviving spouse’’. We propose to remove the last governing fugitive felons, to the Because these terms are defined for sentence of initially proposed § 5.588(e), authority citation for the section. purposes of all benefits administered because it would impose a restriction

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not authorized by the governing statute. In proposed §§ 5.589(a) and 5.590(a), on the types of adaptive equipment for See Cole v. Derwinski, 2 Vet. App. 400 we propose to add language from which an eligible person may receive (1992), aff’d, 35 F.3d 551 (Fed. Cir. § 3.27(c), providing for an increase in financial assistance from VA to 1994). The effective date of payment of monthly allowance rates under 38 purchase.’’ The commenter was this special allowance is not based on U.S.C. chapter 18 whenever there is a concerned that the list of adaptive the date of the claim, except that the cost-of-living increase in benefit equipment found in initially proposed date of payment cannot be prior to amounts payable under the Social § 5.603(b)(1)(ii) would exclude any August 13, 1981. The last sentence of Security Act. We inadvertently failed to equipment not listed in that section. initially proposed § 5.588(e), based on add this language in the initially The commenter pointed out that parts current § 3.812(e), limits retroactive proposed rule and propose to add it of the authorizing statutes and parts of payment of the special allowance now. current VA regulations use ‘‘but is not contrary to the governing statute. limited to’’ in conjunction with § 5.591 Effective Date of Award for a Current VA practice is consistent with ‘‘includes’’. Further, other regulations in Disabled Child of a Vietnam Veteran or this interpretation of the statute. the initially proposed rule used We propose to update the statutory a Veteran With Covered Service in language such as ‘‘including, but not authority citations contained in initially Korea limited to’’. proposed §§ 5.589 and 5.590 to reflect We propose to delete initially In order to eliminate any confusion, that sec. 102(a)(1) of Public Law 108– proposed § 5.591(a)(6). Paragraph (a)(6) we propose to adopt the commenter’s 183, 117 Stat. 2651, 2653, redesignated stated a general rule applicable to all suggestion and add the ‘‘but is not 38 U.S.C. 1822, 1823, and 1824 as 38 effective dates. Because this general rule limited to’’ language to § 5.603(b)(1)(ii), U.S.C. 1832, 1833, and 1834, is stated in § 5.152(a), there is no need to read, ‘‘Adaptive equipment includes, respectively. to restate it here. but is not limited to: ’’. For the same reason, we propose to add similar § 5.592 Awards Under Nehmer Court § 5.589 Monetary Allowance for a language to §§ 5.589(d)(2), Orders for Disability or Death Caused by Vietnam Veteran or a Veteran With 5.590(d)(1)(xii), 5.590(d)(2), Covered Service in Korea Whose Child a Condition Presumptively Associated 5.590(d)(6)(ii), 5.590(e)(1)(ii)(B), Was Born With Spina Bifida with Herbicide Exposure 5.590(e)(1)(iii)(B), 5.590(e)(1)(iv)(D), In § 5.589, we propose to replace the We propose to add § 5.592. It is the 5.590(e)(1)(v)(C), 5.590(e)(2)(i), term ‘‘individual’’ with ‘‘person’’ to counterpart to current § 3.816, which we 5.606(b)(1), and 5.606(b)(2). maintain consistency in our usage inadvertently omitted from the March 9, We propose to change the regulation throughout the regulations. We have 2007, notice of proposed rulemaking for text in initially proposed § 5.603(b)(1)(i) also modified the wording of initially these rules. 72 FR 10860. We intend to to conform with the language of current proposed § 5.589(b) to clarify any insert it here. § 3.808(e). The initially proposed text ambiguity resulting from this change. Paragraph (b)(2) of § 3.816 states, in did not include part of the required text. On January 25, 2011, VA published pertinent part, ‘‘Covered herbicide The text will read, ‘‘‘Adaptive Final Rule AN27, ‘‘Herbicide Exposure disease means a disease for which the equipment’ means equipment that must and Veterans with Covered Service in Secretary of Veterans Affairs has be part of or added to a vehicle Korea’’ to implement the Veterans established a presumption of service manufactured for sale to the general Benefits Act of 2003, Public Law 108– connection before October 1, 2002 public to:’’. 183, 117 Stat. 2651. 76 FR 4245. We pursuant to the Agent Orange Act of Initially proposed paragraph propose to incorporate these provisions 1991, Public Law 102–4, other than (b)(1)(ii)(A) said, ‘‘Automatic as a new paragraph (c)(2) in § 5.589 and chloracne.’’ In July 2007, the U.S. Court transmission as to an eligible person make conforming amendments to of Appeals for the Ninth Circuit rejected who has lost, or lost the use of, a limb’’. §§ 5.57(b), 5.150(a), 5.152(a) and (d), VA’s position that its duties under the We propose to delete ‘‘as to an eligible 5.228(a), 5.262(a)(1)(ii), 5.589(a) and (e), Nehmer stipulation have ended and person who has lost, or lost the use of, 5.590(i), and 5.591. held that VA’s duties extend through at a limb’’, because with that phrase in the In redesignated § 5.589(c)(3) we least 2015. Nehmer v. U.S. Dept. of regulation the eligible person with propose to change the last sentence of Veterans Affairs, 494 F.3d 846, 862–63 ankylosis of the knees or hips would not initially proposed § 5.589(c)(2) for (9th Cir. 2007). Accordingly, the qualify for VA assistance to obtain an clarification purposes. requirements of the Nehmer court automatic transmission. orders for review of previously denied We propose to combine initially § 5.590 Monetary Allowance for a claims and for retroactive payment proposed § 5.603(b)(1)(ii)(D) and (F) Female Vietnam Veteran’s Child With apply to new presumptions. We (which were based on 38 CFR Certain Birth Defects therefore propose to omit the phrase 3.808(e)(2) and (3)) as paragraph In § 5.590, we propose to replace the ‘‘before October 1, 2002,’’ from § 5.592. (b)(1)(ii)(D). They were substantially term ‘‘individual’’ with ‘‘person’’ to We also propose to update § 5.592(b)(2) redundant. It was the intent of both maintain consistency in our usage to encompass the presumptive diseases § 3.808(e)(2) and (3) to set limits on the throughout the regulations. We have listed in § 3.309(e), by cross referencing amount of assistance that VA may pay also modified the wording of initially § 5.262(e). 38 CFR part 3 has already for adaptive equipment. We have always proposed § 5.590(b) to clarify any been amended to remove this date and interpreted these two regulations in this ambiguity resulting from this change. the removal of the date from part 5 way. This interpretation is also in We also propose to clarify the regulation conforms to the part 3 change. 78 FR accordance with 38 CFR 17.158(b), text of § 5.590(b) to reflect that that 54763, Sept. 6, 2013. which also sets the same limitations on provision is subject to § 5.590(a)(3), the amount of assistance for adaptive which governs the payment of monetary § 5.603 Financial Assistance To equipment. allowance where a covered birth defect Purchase a Vehicle or Adaptive We propose to delete initially is spina bifida. We propose to add the Equipment proposed § 5.603(b)(1)(ii)(C) and phrase, ‘‘[e]xcept as provided in One commenter stated that ‘‘proposed redesignate initially proposed paragraph (a)(3) of this section’’. § 5.603(b)(1)(ii) establishes limitations § 5.603(b)(1)(ii)(E) as § 5.603(b)(1)(ii)(C).

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The requirement that an air conditioner rulemaking to comply with that § 5.604 Specially Adapted Housing be included in the list of adaptive provision in 38 CFR part 3. Once that Under 38 U.S.C. 2101(a) equipment is no longer necessary. The has been completed, the new regulatory In our proposed rulemaking, 72 FR vast majority of new cars have air language will be incorporated into 10860, Mar. 9, 2007, we had reserved conditioners included in their standard § 5.603. §§ 5.604 and 5.605 while VA completed equipment package. If VA were to We propose to redesignate paragraph a rulemaking to implement housing receive a claim for an air conditioner, (c)(3) as paragraph (d)(1), because the provisions of the Veterans Benefits Act this claim could be granted because content of paragraph (c)(3) is more of 2003, the Veterans Benefits § 5.603(b)(1)(ii) contains the phrase relevant to the subject of paragraph (d), Improvement Act of 2004, the Veterans’ ‘‘includes, but is not limited to’’, which Housing Opportunity and Benefits advises the reader that this is not an ‘‘Limitations on assistance’’, than to Improvement Act of 2006, and the exclusive list. paragraph (c), ‘‘Eligibility criteria.’’ We Housing and Economic Recovery Act of In paragraph (c)(2), we propose to also propose to add a provision to change the phrase ‘‘loss or permanent paragraph (d)(1)(i) based on 38 U.S.C. 2008. VA has now amended 38 CFR loss of use [of a named body part]’’ to 3902(d), that VA will assist a person 3.809, ‘‘Specially Adapted Housing ‘‘Anatomical loss or permanent loss of who cannot qualify to operate a vehicle under 38 U.S.C. 2101(a)’’, and § 3.809a, use [of a named body part].’’ We intend to purchase a vehicle, if another person ‘‘Special Home Adaptation Grants under to make this change throughout part 5. will drive the vehicle for him or her. 38 U.S.C. 2101(b)’’. 75 FR 57859, Sept. Part 3 uses both phrases 23, 2010. We now propose to As a result of redesignating initially incorporate §§ 3.809 and 3.809a, as interchangeably, sometimes in a single proposed paragraph (c)(3) as paragraph regulation and this resulted in amended, into part 5 with several (d)(1), we propose to redesignate stylistic changes. confusion. See, for example, 38 CFR initially proposed paragraphs (d)(1) and 3.350. (d)(2) as paragraphs (d)(2) and (d)(3). We § 5.606 Clothing Allowance The statute defining the disabilities a propose to clarify the text in We propose to clarify initially person must have to be eligible for an redesignated § 5.603(d)(3). As written, automobile or adaptive equipment proposed § 5.606(a) to state: ‘‘VA will the initially proposed text failed to requires ‘‘loss or permanent loss of use’’ pay an annual clothing allowance to a include the reference to circumstances of particular body parts, 38 U.S.C. 3901, veteran with a qualifying disability. beyond the control of the eligible and VA interprets ‘‘loss’’ in that phrase However, VA will pay more than one as meaning anatomical loss. This person. We propose to revise the text by annual clothing allowance if VA interpretation is consistent with the inserting the phrase, ‘‘due to determines that the veteran has more qualification for certain levels of special circumstances beyond the eligible than one qualifying disability.’’ This is monthly compensation for ‘‘anatomical person’s control,’’ between ‘‘a 4-year consistent with the decision in Sursely loss or loss of use’’. See 38 U.S.C. period unless,’’ and ‘‘one of the adapted v. Peake, 551 F.3d 1351, (Fed. Cir. 1114(k) through (n) and (p). We propose vehicles’’. We also propose to add to the 2009). The court held that Congress to change ‘‘loss of’’ to ‘‘anatomical loss second sentence the words ‘‘or intended to allow each eligible veteran or’’ in § 5.606, paragraph (b), for the reimbursements’’ after ‘‘payments’’, one clothing allowance per year per same reason. We note that 38 CFR because we unintentionally omitted it qualifying disability. On February, 2, 3.810(a)(1) pertains to clothing from the original text. We therefore 2011 VA proposed a rule, AN64 allowance for veterans with disabilities propose to revise the sentence to read, Clothing Allowance, to implement rated as specified in § 3.350(a), (b), (c), ‘‘The Under Secretary for Health or Sursely. 76 FR 5733. Once the Final (d), and (f), which implement provisions designee may authorize payments or Rule has been published, it will be of 38 U.S.C. 1114 that authorize special reimbursements for the repair, incorporated into § 5.606. monthly compensation for anatomical replacement, or reinstallation of We also propose to clarify the term loss or loss of use [of a named body adaptive equipment deemed necessary ‘‘veteran’’ as it applies to a person who part]. Therefore, this change is for the operation of the vehicle.’’ We is eligible for clothing allowance. VA consistent with statutory intent. also propose to delete ‘‘§§ 17.156 General Counsel’s opinion We propose to revise initially through’’ from the cross reference, VAOPGCPREC 4–2010, (May 25, 2010), proposed paragraph (c)(2)(iv) to make which is now only to § 17.158, because held that the ‘‘term [veteran] includes clear that a person with ankylosis of one §§ 17.156 and 17.157 do not pertain to individuals who have returned to active or both knees, or one or both hips may the subject of the cross reference. duty after previously meeting the only receive financial assistance to definition of ‘veteran.’ ’’ We propose to purchase adaptive equipment. We have determined that initially incorporate this holding in proposed Section 803 of Public Law 111–275, proposed § 5.603(f), ‘‘Redemption of § 5.606(a). 124 Stat. 2864, 2889 (2010) amended 38 certificate of eligibility’’, was inaccurate. We propose to consolidate initially U.S.C. 3901 which lists the disabilities Therefore, we propose to restructure proposed § 5.606(a), (b), and (b)(1) for that qualify a veteran for VA assistance this paragraph to encompass both the clarity and simplicity, without changing to purchase a vehicle or adaptive purchase of the vehicle and the the meaning. equipment for a vehicle. We propose to purchase of adaptive equipment. Initially proposed § 5.606(b)(2) add paragraph (c)(2)(v) to implement the Paragraphs (f)(1)(i) and (2)(i) address addressed all service-connected statutory amendment by adding redemption of a certificate of eligibility disabilities for which the veteran wears ‘‘[s]evere burn injury’’ as a qualifying by the seller, and paragraphs (f)(1)(ii) or uses a prosthetic or orthopedic disability. Section 803 indicated that and (2)(ii) address redemption of a appliance that wears or tears clothing. what qualifies as a ‘‘severe burn injury’’ certificate of eligibility by the eligible Current § 3.810 distinguishes for purposes of obtaining automobile or person. Together, these paragraphs disabilities compensated at a rate adaptive equipment will be cover the scenarios where the vehicle or specified in § 3.350(a) through (d) or (f) ‘‘determined pursuant to regulations adaptive equipment was purchased and other service-connected disabilities prescribed by the Secretary.’’ VA’s prior to an eligible person acquiring the that require an appliance. We propose to Compensation Service is drafting a certificate of eligibility. revise the paragraph to maintain the

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distinction in the current regulation. We Filipino veterans. One purpose of requesting a determination of propose to address the disabilities proposed Subpart I is to assemble in one entitlement, or evidencing a belief in compensated at the rate specified in place all of the adjudication regulations entitlement, to a benefit.’’ Under § 5.1, §§ 5.322 through 5.329, 5.331, or § 5.332 dealing with benefits for certain Filipino ‘‘Application’’ is defined as ‘‘a specific and redesignate the paragraph as (b)(1). veterans. It would be redundant to form required by the Secretary that a Initially proposed § 5.606(b)(2) did repeat that information in § 5.606. claimant must file to apply for a not distinguish between applications for Additionally, paragraph (f) stated that benefit.’’ Accordingly, the following clothing allowance that VA can grant claims for clothing allowance by changes are proposed to be made. We after a required examination and those Filipino veterans are processed in propose that the words ‘‘formal that require certification by the Under Manila. This is purely a matter of application’’ be replaced with the word Secretary for Health or designee, as does internal VA administration of claims. ‘‘claim’’ every time they appear in current § 3.810. We propose to revise The paragraph conferred no benefit on § 5.581(b), and the phrase ‘‘in the form the paragraph to maintain this the veteran, and it did not require the prescribed by VA’’ be removed. We also distinction, and redesignate it as claimant to take any action. We propose propose that the phrase ‘‘on a form paragraphs (b)(1) through (3). to remove the paragraph as an prescribed’’ be removed from § 5.583(c). In initially proposed § 5.606(b)(2), we unnecessary regulation. We also propose that the words ‘‘an used the term ‘‘VA determines’’ in place We propose to remove initially application’’ be replaced with the words of the term ‘‘Chief Medical Director or proposed § 5.606(g). Paragraph (g) ‘‘a claim’’ in the introductory text of designee’’, which part 3 uses for the VA informed the veteran living abroad that § 5.584. In addition, we propose that the office now designated as Under the VA Medical Center (VAMC) with phrases and word ‘‘on a form prescribed Secretary for Health. We propose to jurisdiction over his permanent address by the Secretary of Veterans Affairs’’, revise paragraph (b)(2) to use ‘‘Under has jurisdiction over a claim for a ‘‘form’’, and ‘‘on the prescribed form’’ Secretary for Health or designee’’. This clothing allowance. The assignment of be removed from § 5.588(e). Finally, we change eliminates any ambiguity about claims to specific facilities is purely a propose that the words ‘‘application who makes the determination. matter of internal VA administration of form’’ and ‘‘application’’ be replaced We propose to change § 5.606(c)(1) claims. The paragraph conferred no with the word ‘‘claim’’ in every place and (2) to state the circumstances in benefit on the veteran. We propose to they appeared in initially proposed which the veteran need not file the remove the paragraph as an unnecessary §§ 5.603(d)(1), 5.606(b)(3), and 5.606(e). claim for a clothing allowance annually. regulation. As a result of removing XIV. Subpart I: Benefits for Certain VA has provided for the annual clothing paragraphs (f) and (g), we will Filipino Veterans and Survivors allowance without requiring the filing of redesignate paragraph (h) as paragraph an annual claim, as stated in paragraphs (f). In a document published in the (c)(1) and (2), since the inception of the Federal Register on June 30, 2006, we clothing allowance benefit in 1972. VA Technical Corrections proposed to revise VA’s regulations form 10–8678, ‘‘Application for Annual In addition to considering any governing benefits for certain Filipino Clothing Allowance (Under 38 U.S.C. necessary changes to proposed part 5 veterans and their survivors, to be 1162)’’, implements this long-standing regulations based on comments received published in a new 38 CFR part 5. 71 practice. from the public, we propose to make FR 37790. The title of this proposed We propose to rewrite initially certain additional changes in this rulemaking was, ‘‘Benefits for Certain proposed § 5.606(d) for clarity. We reproposed rule: adding, updating, and Filipino Veterans and Survivors’’ (RIN: propose to delete the term ‘‘anniversary moving some authority citations, 2900–AL76). We provided a 60-day date’’. Although we had defined the correcting a citation, and correcting comment period that ended August 29, term, we have determined that it is citation format. For example, proposed 2006. We did not receive any confusing to the reader, and have opted § 5.584, ‘‘Loan guaranty for a surviving submissions from commenters to use the actual date of August 1 spouse: eligibility requirements’’, lacked pertaining to this proposed rule. instead. We also propose to define the an authority citation at the end of the Although no comments were received ‘‘payment year’’ for which VA pays the section. We intend to correct this regarding our publication on June 30, annual clothing allowance as the ‘‘12- omission by adding the authority 2006, an internal review of proposed month period beginning August 1 and citation, 38 U.S.C. 3701(b)(2). We also Subpart I revealed minor typographical ending July 31 of the following year.’’ propose to add to the authority citation errors and a need for further For this reason, we propose to delete the for § 5.587. clarification in several areas. term ‘‘anniversary date’’ in § 5.606(e) as Accordingly, based on the rationale set well. Changes in Terminology forth in the initially proposed rule and We propose to rewrite initially For consistency of terminology this proposed document, we propose to proposed § 5.606(e) for clarity. We throughout part 5, we propose to replace adopt the provisions of proposed propose to change ‘‘within 1 year of’’ the term ‘‘evaluation’’ with the term Subpart I, with the following changes and ‘‘within 1 year from’’ to ‘‘no later ‘‘rating’’, and ‘‘evaluated’’ with ‘‘rated’’, discussed below. than 1 year after’’. This change makes whenever either appears in §§ 5.589(d), clear that the time to file a claim relative 5.590(a)(3), and 5.590(e). Publication of Revisions to Subparts to August 1 means the year after August We also propose to correct our use of The publication for proposed Subpart 1. We also propose to remove the term the terms ‘‘claim’’ and ‘‘application’’. I also contained minor revisions to ‘‘initial anniversary date’’ and instead, Under 38 CFR 3.1(p), ‘‘Claim– Subpart B, ‘‘Service Requirements for describe the first period for which VA Application’’ is defined as ‘‘a formal or Veterans’’, and Subpart E, ‘‘Claims for pays a veteran a clothing allowance as informal communication in writing Service Connection and Disability the ‘‘initial year of payment eligibility’’. requesting a determination of Compensation’’, which had been We propose to remove initially entitlement or evidencing a belief in previously published in proposed proposed § 5.606(f). Paragraph (f) entitlement, to a benefit.’’ Under § 5.1, rulemaking packages. Those revisions contained information already in ‘‘Claim’’ is defined as ‘‘a formal or will be contained in this proposed rule Subpart I of part 5, which pertains to informal communication in writing segment. The package for Subpart I was

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one of two packages that contained provisions. First, we propose to insert Benefits’’. The commenter explained revisions to other subparts, and since the word ‘‘veteran’s’’ before ‘‘survivor’’ that veterans have a right to these more then we have decided to publish all in both places where the term detailed regulations with a ‘‘plain revisions to the various subparts ‘‘survivor’’ is used. Second, we propose layout’’ that one ‘‘can read . . . without together in this proposed rule in order to clearly set out the rules for the any misunderstanding.’’ The commenter to facilitate an easier referencing following classes of beneficiaries: those went on to say that ‘‘there is nothing process. who were absent from the U.S. for a wrong with being more straight forward total of 183 days or more and returned with the provisions especially when it § 5.610 Eligibility for VA Benefits to the U.S. during the same calendar comes to burial provisions. Pass the rule Based on Philippine Service year, and those who were absent from and be done with it, let the confusion Initially proposed § 5.610(b)(3) the U.S. for a total of 183 days or more be dismissed.’’ No changes to the incorrectly stated that service as an and returned to the U.S. in a later proposed rule were suggested. Although officer commissioned in connection calendar year but less than 183 days we are pleased that the commenter finds with administration of Public Law 79– after the beginning of such calendar these rules an improvement over part 3, 190 is not active military service for year. This revision does not reflect a we regret that we cannot accelerate the purposes of VA benefits. new policy; rather it is a clarification of effective date of one subpart of part 5 Administrator’s Decision 778 (Mar. 5, current § 3.405(b)(2). We also propose to because, administratively, it would be 1948) concluded that service as a redesignate the remaining paragraphs too cumbersome and costly to establish commissioned officer in connection under § 5.614(b) accordingly. part 5 in stages. We propose not to make with administration of Public Law 79– any changes based on this comment. 190 would constitute regular active Technical Corrections military service—that is, it would We propose to make several changes § 5.630 Types of VA Burial Benefits qualify for all benefits available to U.S. to certain provisions describing the We propose to add a definition of veterans. Among other things, that dates relevant to eligibility for burial ‘‘burial’’ as new paragraph (b) to ensure opinion noted that because such benefits at the full-dollar rate. Initially that readers know that VA pays burial commissioned service was not service proposed § 5.610(b)(1) and the chart in benefits for all the legal methods of pursuant to section 11 of Public Law initially proposed § 5.612 referred to disposing of the remains of deceased 79–190 (relating to enlistments), it was deaths occurring ‘‘on or after December persons, including, but not limited to, not subject to the limitations currently 16, 2003’’. We propose to revise this to cremation, burial at sea, and medical codified in 38 U.S.C. 107(b). Therefore, refer to deaths occurring ‘‘after school donation. we propose to correct this error in December 15, 2003’’ in order to conform We propose to revise this paragraph paragraph (a) of § 5.610. to the format used in current 38 CFR by adding the phrase ‘‘or interment’’ In § 5.610(c)(1), we propose to change 3.43 and the format generally used for after ‘‘memorialization’’ to clarify the ‘‘General Officer, U.S. Army’’ to dates throughout part 5. Initially distinction between interment and ‘‘Commander-in-Chief, Southwest proposed § 5.617(b) referred to deaths memorialization. Interment refers to Pacific Area, or other competent occurring ‘‘after November 1, 2000’’. placing a body into the ground. authority in the Army of the U.S.’’ to However, the corresponding provisions Memorialization honors a person whose further specify the type of authority of the chart in proposed § 5.612 remains have not been found. needed to establish active military inaccurately referred to deaths occurring In addition, to avoid potential service in the Commonwealth Army of ‘‘on or after 11/1/00’’. As stated in the confusion for readers, we propose to the Philippines. notice of proposed rulemaking, the chart clarify that the burial regulations in part in § 5.612 is intended only to 5 do not apply to the benefit programs § 5.613 Payment of Disability summarize the provisions in Subpart I listed in paragraph (c), which operate Compensation or Dependency and and not to confer any additional rights. under separate statutes and regulations. Indemnity Compensation at the Full Accordingly, we propose to correct the Dollar Rate for Certain Filipino Veterans § 5.631 Deceased Veterans for Whom inadvertent error in the chart by or Their Survivors Residing in the U.S. VA May Provide Burial Benefits replacing ‘‘on or after 11/1/00’’ with In order to clarify the list of ‘‘after 11/1/00’’ to ensure that the chart We propose to redesignate the acceptable items of evidence in regards accurately reflects the applicable rule. paragraphs of this rule according to the to a veteran’s or veteran’s survivor’s revisions described below. First, we eligibility for compensation at the full- XV. Subpart J: Burial Benefits propose to delete initially proposed dollar rate under § 5.613(c)(2) and a In a document published in the paragraph (b), which had required that veteran’s burial benefits at the full- Federal Register on April 08, 2008, we the veteran upon whom a claim for dollar rate under § 5.617(c)(2), a valid proposed to revise Department of burial benefits is based to have been original or a valid copy of any of the Veterans Affairs (VA) regulations discharged or released from service enumerated items, such as a U.S. governing burial benefits, to be under conditions other than passport, is required. In both instances, published in a new 38 CFR part 5. 73 dishonorable, and added such a we propose to add the modifier word FR 19021. The title of this proposed requirement to what is now proposed ‘‘valid’’ to the terms ‘‘copy’’ and rulemaking was ‘‘Burial Benefits’’ (RIN: paragraph (a). This makes the rule ‘‘original’’, and remove the unnecessary 2900–AL72). We provided a 60-day simpler to read and easier to apply. word ‘‘valid’’ in front of ‘‘U.S. comment period that ended June 9, Second, we propose to delete initially passport’’. 2008. We received submissions from proposed paragraph § 5.631(c). This two commenters: two members of the paragraph was derived from current 38 § 5.614 Effective Dates of Benefits at general public. CFR 3.1600(d). The paragraph was the Full-Dollar Rate for a Filipino ambiguously written, but was intended Veteran and His or Her Survivor General Comment to state merely that VA can reopen a We propose to divide initially One commenter expressed satisfaction claim for service-connected death if new proposed § 5.614(b)(3) into paragraphs with the rewritten provisions in and material evidence is presented. This (b)(3) and (b)(4) and clarify these proposed RIN 2900–AL72, ‘‘Burial rule is not a rule concerning burial

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benefits, but is a more general rule that contained in the portion of § 5.90 that is of the word ‘‘persons’’, we propose to can affect the provision of any benefit based on current §§ 3.109(a)(1) and revise the sentence for clarity. based on a service-connected death. We 3.159(b)(2). Because these rules are Proposed paragraphs § 5.635(a) and propose to delete initially proposed already contained elsewhere in part 5, (b) are not an exclusive list of § 5.631(c) for these reasons, and because there is no need to repeat them in reimbursable transportation expenses. it is redundant of the new-and-material- subpart J and so we propose to delete We propose to reword and add the evidence rule found in § 5.55. the above referenced sentence from phrase ‘‘but are not limited to’’ to the § 5.633(b)(1). introductory sentence in § 5.635, in § 5.633 Claims for Burial Benefits One commenter suggested that order to be consistent with § 3.1606 and We propose to revise § 5.633(a)(1) to § 5.633(b)(1)(iii), regarding the with current practice. clarify that a claim to reopen information needed in a statement of §§ 5.643 Burial Allowance Based on nonservice-connected burial allowance account, should read ‘‘the dates of Nonservice-connected Death, and 5.644 must be filed no later than 2 years after expenses incurred for services Burial Allowance for a Veteran Who the date of the veteran’s burial. This rendered’’ and not ‘‘the dates and Died While Hospitalized by VA revision is consistent with § 3.1600(b), expenses incurred for services and current VA practice. rendered’’. We disagree with the A commenter suggested that we In paragraph (a)(2), we propose to commenter’s suggestion. By placing replace ‘‘based upon’’ with ‘‘for’’ in revise the first sentence to eliminate any ‘‘of’’ instead of ‘‘and’’ in this part of §§ 5.643(b) and 5.644(b). The reference to the nonservice-connected § 5.633(b)(1)(iii), the meaning of the commenter believes that the revision burial allowance. Neither the law nor regulation would be changed. Using the would make the regulatory language VA policy prevents providing the word ‘‘of’’ in this context would restrict plainer, simpler, and more reader- service-connected burial allowance to a the information that VA requires for a focused. We agree with the suggestion person whose discharge is upgraded statement of account to only the dates and propose to replace the words posthumously. The initially proposed on which the expenses were incurred. ‘‘based upon’’ with ‘‘for’’ in the regulation had not provided for such a In contrast, using the word ‘‘and’’ introductory sentences of §§ 5.643(b) limitation because, although this signifies that VA requires the dates as and 5.644(b). specific provision had applied only to well as the expenses incurred for the § 5.644 Burial Allowance for a Veteran nonservice-connected burial benefits, services rendered. This interpretation is Who Died While Hospitalized by VA there was no time limit to file a claim supported by the similar language found for service-connected burial benefits in § 3.1601(b), upon which § 5.633(b) is One commenter questioned the and, therefore, there was no bar against based. However, we propose to clarify reasoning behind referring to the Canal filing a claim (or a claim to reopen) for the sentence to eliminate the possibility Zone in § 5.644(d). The commenter a service-connected burial allowance at that it could be read to refer only to the stated that since the U.S. returned any time after the veteran’s death. dates of the expenses incurred. ownership of the Canal Zone to Panama, However, the regulation is clearer We propose to revise initially the location should not be listed. without the reference to nonservice- proposed § 5.633(b)(1)(iv) for clarity, Section 5.644 listed the Canal Zone connected burial benefits in the first and to eliminate redundancy. because it is included in the applicable sentence because it cannot be statute (see 38 U.S.C. 101(20)). However, misinterpreted as a rule that limits to § 5.634 Reimbursable Burial Expenses: we now propose to include the Canal the nonservice-connected burial General Zone in our definition of ‘‘State’’ in allowance the applicability of an award Initially proposed § 5.634(b)(2) had § 5.1, as stated above. Therefore, we based on a posthumously upgraded barred reimbursement for an item or propose to remove all references to the character of discharge. service ‘‘previously provided or paid for Canal Zone in proposed § 5.644(d), and In initially proposed § 5.633(b)(1), we by the U.S. Government.’’ We propose simply use the term ‘‘State’’. stated, ‘‘Evidence required to to clarify this sentence because we will, We received one comment regarding a substantiate a claim for burial benefits in fact, reimburse for the cost of a proposal not to include a part 5 must be submitted no later than 1 year uniform if a new uniform was counterpart to § 3.1605(b), which denies after the date VA requests such purchased because the veteran’s service eligibility for transportation expenses to evidence.’’ This sentence was based on uniform was not in a condition suitable ‘‘retired persons hospitalized under current § 3.1601(b), which was intended for burial. section 5 of Executive Order 10122 . . . to implement 38 U.S.C. 2304. That issued pursuant to Public Law 351, 81st statute provides, in pertinent part: § 5.635 Reimbursable Transportation Congress, and not as Department of Expenses for a Veteran Who is Buried in Veterans Affairs beneficiaries’’. Section If a claimant’s application is incomplete at a National Cemetery or Who Died While the time it is originally submitted, the 5 of Executive Order 10122 relates to Secretary shall notify the applicant of the Hospitalized by VA current and former servicemembers who evidence necessary to complete the A commenter suggested that the word had been hospitalized for chronic application. If such evidence is not received ‘‘persons’’ should be replaced by the diseases between May and October of within one year from the date of such word ‘‘veterans’’ in the introductory 1950. The commenter noted that, in a notification, no [non-service connected sentence of § 5.635. The commenter burial] allowance may be paid. preliminary draft, VA proposed to stated that otherwise it is awkward delete this section. The commenter Instead of using § 3.1601(b)’s term, wording since the sections referred to in approved removing this section, but ‘‘complete a claim’’, we mistakenly used the introduction, §§ 5.639 and 5.644, do only if there was evidence that ‘‘substantiate a claim’’. The rule on refer to veterans specifically. We removing it would not affect any filing of evidence to ‘‘substantiate [a] understood the commenter’s point to be veteran’s benefits. claim’’ is contained in the portion of that VA will only reimburse expenses As stated in the AL72 NPRM § 5.90 that is based on current connected with the transportation of a preamble, we proposed not to include in § 3.159(b)(1). See also § 5.136, which is deceased veteran. To the extent that the part 5 the rule in current § 3.1605(b) that based on current § 3.158(a). The rules on introductory sentence to the regulation denies eligibility for transportation filing an ‘‘incomplete application’’ are could have been read otherwise by use expenses to ‘‘retired persons

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hospitalized under section 5 of death’’. In most VA claims, the time of reference to a ‘‘civil’’ court to be a Executive Order 10122 . . . issued death is not relevant, only the date of reference to a court other than a U.S. pursuant to Pub. L. 351, 81st Congress, death. The only exception is military court, that is, it refers to a and not as Department of Veterans § 5.644(b)(6), which discusses whether a ‘‘civilian’’ court, and propose to modify Affairs beneficiaries.’’ Section 5 of veteran was hospitalized by VA but was the paragraph accordingly. Executive Order 10122 related to not at the VA facility at the time of Initially proposed § 5.660(d) read, ‘‘A current and former servicemembers who death. We therefore propose to replace service department finding that injury, had been hospitalized for chronic ‘‘at the time of death’’ with ‘‘on the date disease, or death occurred in line of diseases between May and October of of death’’ throughout the burial duty will be binding on VA unless the 1950. Executive Order 10122 is more regulations. These changes are meant to finding is patently (clearly) inconsistent than half a century old and applied to achieve consistency throughout the part with the laws administered by VA.’’ In a very small group of veterans. The 5 regulations. responding to our proposed rule, a reference is outdated and no longer commenter opined that use of the terms XVI. Subpart K: Matters Affecting the necessary. In response to the comment, ‘‘patently’’ and ‘‘clearly’’ created a new Receipt of Benefits we note that if any such claim arises in evidentiary standard, and suggested that the future, VA will process it under In a document published in the VA ‘‘stick with evidentiary standards for Public Law 351, 81st Congress, and Federal Register on May 31, 2006, we which there are precedents in VA law.’’ Executive Order 10122, so no veterans proposed to revise VA regulations Under our current regulation, 38 CFR benefits will be affected by the omission governing matters affecting the receipt 3.1(m), a service department line-of- from part 5. of benefits, to be published in a new 38 duty finding is binding on VA unless it CFR part 5. 71 FR 31056. The title of is ‘‘patently inconsistent with’’ VA law. § 5.649 Priority of Payments When this proposed rulemaking was ‘‘Matters The purpose of this regulatory There is More Than One Claimant Affecting the Receipt of Benefits’’ (RIN: presumption is pro-veteran; VA does We propose to clarify initially 2900–AM05). We provided a 60-day not intend to question a service proposed § 5.649(e) to state that ‘‘Any comment period that ended on July 31, department line-of-duty finding unless claimant may waive his or her right to 2006. We received submissions from that finding would lead to a result that receive burial benefits in favor of four commenters: American Psychiatric is contrary to the laws concerning the assigning his or her right to another Association, Disabled American provision of veterans’ benefits. An claimant.’’ This change is consistent Veterans, the National Organization of example of such an inconsistent finding with current VA practice. Veterans’ Advocates, and Vietnam might be that a veteran’s injury was Veterans of America. incurred as a result of the abuse of § 5.651 Effect of Contributions by alcohol, but nevertheless was in the line § 5.660 In the Line of Duty Government, Public, or Private of duty. VA could not accept such a Organizations Initially proposed § 5.660(a) stated, finding because we are barred from In § 5.651(c)(2), we propose to use ‘‘Except as provided in § 3.310 of this providing service-connected disability active voice to clarify that VA will not chapter, VA may grant service compensation if ‘‘the disability is the pay burial allowance in the connection only for an injury, disease, result of . . . abuse of alcohol’’. 38 circumstances stated. We also propose or cause of death that was incurred or U.S.C. 1110. to improve readability by changing ‘‘in’’ aggravated in line of duty.’’ This was a The binding nature of a service- to ‘‘occurring during’’ before ‘‘active misstatement of the language in department line-of-duty finding is a military service’’, and removing the § 3.301(a) that states, ‘‘. . . service regulatory interpretation of 38 U.S.C. comma after ‘‘service’’. connection may be granted only when a 105(b), which reads that, ‘‘The disability or cause of death was incurred requirement for line of duty will not be Technical Corrections or aggravated in line of duty, and not met’’ if the veteran was avoiding duty, One commenter pointed out several the result of the veteran’s own willful confined under sentence of court necessary technical changes and a misconduct. . .’’ Under its authorizing martial or for felony charges in a civil correction that we propose to make. statutes, VA service connects disability court, etcetera. These are all legal issues First, we propose to move the misplaced or death, not injury or disease per se, so where, as a matter of law, the veteran opening parenthesis in § 5.636(a)(2)(ii). we propose to correct § 5.660(a) to read, was not performing a duty for the Second, we propose to correct the ‘‘. . . VA may grant service connection military. There is no need to weigh grammar when referring to interment in only for a disability or death that was evidence under such circumstances §§ 5.638(c)(2) and 5.643(e)(2) by adding incurred or aggravated in the line of because, as a matter of law, the evidence the word ‘‘a’’ before ‘‘State veterans duty.’’ cannot overcome the statutory bar. For cemetery’’, both places these words Initially proposed § 5.660(c)(4) this reason, we reject the commenter’s appear. Finally, we propose to correct provided that an injury was not suggestion that we use a common the date in § 5.653 from ‘‘December 1, incurred in the line of duty if it was evidentiary standard of proof in this 1957’’ to correctly read ‘‘December 31, incurred while the veteran was situation; the question is neither about 1957’’, as provided in the enabling ‘‘Confined under a sentence of civil the quality of the evidence, nor the statute, 38 U.S.C. 2305. court for a felony as determined under weight of the evidence. For these In addition to considering any the laws of the jurisdiction where the reasons, we also do not describe the necessary changes to proposed part 5 veteran was convicted by such court.’’ A evidentiary rule as a ‘‘presumption.’’ regulations based on comments received virtually identical rule appears in 38 Therefore, we propose not to revise the from the public, we propose to make U.S.C. 105(b). However, we were rule to include a standard of proof. certain technical corrections. For concerned that the phrase ‘‘civil court’’ However, based on the comment, we example, we propose to replace ‘‘in line could be misconstrued to exclude a understand that addition of the word of duty’’ with ‘‘in the line of duty’’. In criminal court. Clearly, such an ‘‘(clearly)’’ caused confusion, leading addition, the initially proposed rule interpretation is incorrect as shown by the commenter to believe that this used ‘‘at the time of death’’ the statutory and regulatory references regulation does in fact establish an interchangeably with ‘‘on the date of to a felony. We interpret the statutory evidentiary burden. Therefore, we

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propose to use the language in current by regulation because these words have comments are moot and we propose to § 3.1(m), which uses the word commonly understood meanings. We make no changes based upon them. ‘‘patently’’, without ‘‘(clearly)’’. propose to make no changes based on One commenter felt the regulation We note that the above analysis does this comment. should be revised conceptually, and not apply in the same way to § 5.661(f), One commenter noted that VA modernized to preclude a finding of which also proposed to use the phrase, referred to alcohol and drugs separately, ‘‘willful misconduct’’ on the basis of a ‘‘patently (clearly)’’, as discussed below. which could cause confusion because, claimant’s medically documented drug addiction or drug abuse. The commenter § 5.661 Willful Misconduct the commenter asserted, alcohol is also a drug. In 38 U.S.C. 105(a), Congress noted that the influence of drug We have determined that the identified the use of alcohol and drugs, addiction or abuse affects a veteran’s definitions of ‘‘willful misconduct’’, separately. 38 U.S.C. 105(a) (barring a ability to formulate sufficient intent and ‘‘proximately caused’’, and ‘‘drugs’’ line-of-duty finding where injury or to appreciate the consequences of his or proposed in the NPRM should be moved disease was a result of ‘‘abuse of alcohol her actions. Another commenter into § 5.1, ‘‘General definitions’’, or drugs’’). Our regulation uses both expressed the opinion that the because they relate to other sections in terms for consistency with the statute. determination of proximate cause addition to those found in this subpart. One commenter was concerned with should be separated in the regulatory One commenter suggested that VA whether the frequency of use or the scheme from willful misconduct and should adjudicate claims in the addiction of the user was to be used by that the determination should focus on following manner: VA to determine willful misconduct. the act causing the disability. We are • Identify the act that was the The commenter suggested the regulation prohibited from amending the proximate cause of the disability; and be amended to clarify which standard regulations to comply with these then, was to be used. There are two issues comments. The prohibition against • Determine whether that act here. First, whether the addiction itself granting service connection for willful constituted willful misconduct. may be service connected, and second, misconduct and the prohibition against granting service connection for For the reasons stated below, we whether a disability that was proximately caused by frequency of use disability caused by alcohol or drug propose to make no changes based on abuse is contained in 38 U.S.C. 105(a), this comment. or addiction to alcohol or drugs may be service-connected. The law is clear that which reads, ‘‘An injury or disease A chronic disability first shown in incurred during active military . . . primary disability of addiction, at least service or aggravated by service is service will be deemed to have been when such addiction is due to alcohol considered to have been incurred in the incurred in line of duty . . . unless such or drug abuse, cannot be service line of duty unless (1) it is not an injury injury or disease was a result of the connected. 38 U.S.C. 1110. We propose or disease ‘‘within the meaning of person’s own willful misconduct or to make no changes based on this applicable legislation’’, see 38 CFR abuse of alcohol or drugs.’’ Thus, we portion of the comment. 3.303(c); or (2) the evidence shows that cannot make any changes based on the disability was due to willful Neither frequency of use nor these comments because the suggested misconduct. A determination of addiction of the user determines changes are beyond our statutory whether willful misconduct is the whether an event is due to willful authority. proximate cause of a claimed disability misconduct. Rather, the determination One commenter discussed § 5.661(c), is only made when the evidence shows is based on whether the veteran was stating that after VA determines that a or indicates the disability may have intoxicated by drugs or alcohol at the person was intoxicated at the time of been caused by the veteran’s willful time of the event that caused the committing a particular act, the next misconduct. If there is evidence that the disability, and whether that intoxication step should be a determination of disability may have been due to willful was the proximate cause of the whether the person was mentally misconduct, the adjudicator develops disability. See § 5.661(c)(1)(i) and (ii), capable of committing the act in a for additional evidence, if needed. The (c)(2)(i) and (ii). Because VA considers deliberate or intentional manner with entire body of evidence is reviewed and neither addiction nor frequency of use knowledge of, or wanton and reckless the determination concerning proximate to determine whether the specific event disregard of, its probable consequences. cause and willful misconduct are made that caused the disability was due to use The commenter speculated that an at the same time based on the same of alcohol, drugs, or other substances, intoxicated person may not be capable evidence. If the claimed disability was we propose to remove initially proposed of forming the intent. While intent is an not proximately caused by willful paragraph (c)(2)(i), renumber the element in willful misconduct misconduct, service connection is remaining paragraphs in (c), and remove determinations, intent is not an element granted. We propose to make no the reference to addiction from in determining whether alcohol or drug changes based on this comment because proposed (c)(2)(v). abuse was the proximate cause of the it might lead a reader to mistakenly A commenter asserted that the use of disability. In 38 U.S.C. 105, Congress believe that VA develops the issue of the phrase ‘‘isolated and infrequent’’, in made a distinction between willful willful misconduct in every claim for initially proposed paragraph (c)(2)(i), misconduct, an act with an intent service connection. In addition, we do was contradictory because ‘‘isolated’’ element, and abuse of alcohol or drugs, not believe it is generally appropriate to suggests a one-time use and an act without an intent element. Since mandate the precise order in which VA ‘‘infrequent’’ means multiple uses. One abuse of alcohol or drugs has no intent adjudicators must consider the evidence commenter recommended that there be element, we propose to make no in a particular adjudication, because the a regulatory requirement that addiction changes based on this comment. most effective order may depend on the to alcohol, drugs, or other substances, or One commenter stated that initially facts of the case. other use disorders, be determined by a proposed ‘‘[§ ] 5.661(c) provides that One commenter expressed the psychiatrist on a medical basis. Because ‘intoxication’ can be considered ‘willful opinion that the words ‘‘substance,’’ we are removing paragraph (c)(2)(i) and misconduct’ if it is the ‘proximate cause’ ‘‘alcohol,’’ ‘‘addiction,’’ and ‘‘frequent’’ the reference to addiction in proposed of the claimed disability or death.’’ The should be defined. We decline to do so paragraph (c)(2)(v) (now (c)(2)(iv)), these commenter then opined that under the

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proposed regulation VA would use an foreclose the possibility. We therefore rebutting findings favorable to a indirect finding of intoxication in order propose to remove the word claimant is the preponderance standard. to find willful misconduct, instead of ‘‘affirmative’’ from § 5.661(d)(2)(iii) and The application of a higher standard is basing that finding on the act causing insert the word ‘‘competent’’ in its appropriate only when a law mandates the disability or death. This is not place. We note as well that although this that higher standard. correct. In § 5.661(c)(1)(i), we stated, ‘‘If may be viewed as a restrictive change, In initially proposed § 5.661(e) we a person consumes alcoholic beverages in fact and practice, VA never intended repeated current § 3.301(c)(1) which to the point of intoxication and that a result other than that which is states, ‘‘[W]hether the veteran complied intoxication proximately causes injury, compelled by the revision. with service regulations and directives disease, or death, VA will consider the The same commenter opined that the for reporting the disease and undergoing injury, disease, or death to have been requirement in § 5.661(d)(2)(iii) that treatment is immaterial after November proximately caused by willful suicide not be considered an act of 14, 1972, and the service department misconduct.’’ Alcohol or drug abuse mental unsoundness if the evidence characterization of acquisition of the that does not cause a disability or death shows that the deceased had a disease as willful misconduct or as not is not willful misconduct. Alcohol or ‘‘reasonable, adequate motive for in the line of duty will not govern.’’ We drug abuse that causes disability or suicide’’ is a ‘‘heretofore unknown[ ] have determined that this provision is death, whether because of impaired standard of evidence’’ that requires VA unnecessary because it potentially physical capability or judgment, or both, to make ‘‘grim, heartless, and at their conflicts with the first sentence of is willful misconduct. We therefore center, irrational decisions.’’ First, the § 5.661(e) (based on the first sentence of propose to make no changes based on requirement of a showing of a § 3.301(c)(1)), which simply states, ‘‘VA this comment. ‘‘reasonable, adequate motive’’ is not will not consider the residuals of One commenter expressed the ‘‘heretofore unknown’’. Section venereal disease to be the result of opinion that the provisions of § 5.661(a) 5.661(d)(2)(iii) restates current willful misconduct.’’ Moreover, it has and (b) that prohibit granting service § 3.302(b)(2), which also uses the phrase been decades since the military services connection, and because of that ‘‘reasonable adequate motive’’. Second, penalized servicemembers for failing to prohibition dependency and indemnity this evidentiary rule has not led VA to promptly report venereal disease (see 37 compensation, as a result of a veteran’s make irrational decisions in FR 20336 (Sep. 29, 1972)), so the misconduct, were an expansion of the determinations concerning suicide, and sentence is outdated. We therefore current prohibition and unfair to most cases involving suicide are, quite propose not to include it in § 5.661(e). innocent survivors. This commenter understandably, ‘‘grim’’. We see no Finally, regarding § 5.661(f), we noted that this issue was being litigated, reason to change VA policy based on address the proposal to replace the at the time of the preparation of the this comment. However, we propose to ‘‘patently (clearly) inconsistent’’ commenter’s comment. However, after add a comma after the second word of standard to rebut a service-department the commenter submitted the comment, the paragraph, changing the wording finding that a particular injury, disease, the U.S. Court of Appeals for the from ‘‘A reasonable adequate motive’’ to or death was not due to willful Federal Circuit (Federal Circuit) decided ‘‘A reasonable, adequate motive’’. We misconduct. As to the line-of-duty Myore v. Nicholson, 489 F.3d 1207 (Fed. propose this change in order to clarify presumption in § 5.660(d), discussed Cir. 2007). In Myore, the Federal Circuit that the word, ‘‘reasonable’’ modifies above, we removed the word ‘‘(clearly)’’ held that ‘‘38 U.S.C. 1310 authorizes ‘‘motive’’ and not ‘‘adequate.’’ because it gave the wrong impression DIC for the survivors of a The same commenter argued against that that rule established an evidentiary servicemember who dies while on the use of the ‘‘affirmative evidence’’ presumption. But unlike §§ 5.660(d) and active duty if the death is not the result standard in § 5.661(d)(2)(iii) because the current 3.1(m), §§ 5.661(f) and current of the servicemember’s own willful commenter believed that ‘‘affirmative 3.1(n) do in fact establish an evidentiary misconduct.’’ Id. at 1212. The Federal evidence’’ was a quantitative level of presumption. The current rule reads: ‘‘A Circuit agreed with VA’s long-standing proof that is less than a preponderance. service department finding that injury, interpretation of the statutes that willful The commenter opined that the disease or death was not due to misconduct, for purposes of death standard of proof was too low to misconduct will be binding on [VA] benefits and as the cause of death, determine whether suicide was due to unless it is patently inconsistent with prohibits the servicemember’s survivors willful misconduct, and urged VA to the facts and the requirements of laws from being granted benefits. Because the adopt a ‘‘clear and convincing administered by [VA].’’ Because the part 5 rule is consistent with Myore, we evidence’’ standard. We propose to presumption must be consistent with propose to make no changes based on make no changes based on this both fact and law, determining whether this comment. comment for several reasons. First, as it has been rebutted requires factual Initially proposed § 5.661(d)(2)(iii) explained above, we are eliminating the determinations, weighing evidence, and read, ‘‘A reasonable, adequate motive reference to ‘‘affirmative evidence’’. applying the law to those factual for suicide may be established by Second, that standard is a qualitative determinations. Indeed, the mere affirmative evidence showing one—it describes the nature of the process of determining a cause of an circumstances which could lead a evidence—and not a quantitative one. injury is quite different from the rational person to self-destruction.’’ In Thus, it has no effect on the burden of question presented in a line-of-duty § 5.3(e), we propose to state that ‘‘VA proof and could not be read to permit determination, as to which the only may consider the weight of an absence VA to find that suicide was not relevant inquiry is whether there is a of evidence in support of, or against, a evidence of mental unsoundness based legal bar to VA’s adoption of the service particular fact or issue.’’ Although we on less than a preponderance of the department’s finding. Here, then, it does are not aware of any particular cases in evidence. To the extent that the make sense for VA to adopt an which VA reversed a service department commenter believes that such a finding evidentiary standard. finding of mental unsoundness based on ought to be based on more than a We note that §§ 3.1(n) and 5.661(f) the absence of any evidence of record preponderance of the evidence, we note, apply only where there has been a corroborating such finding of mental as discussed in the preamble to § 5.3, service department finding that would unsoundness, our regulation should not that the statutory default standard for tend to be favorable to a claimant, that

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is, that a particular injury, disease, or no changes based on this comment. service connection to a veteran because death was not due to willful Federal law prohibits mercy killings. of a disability proximately due to the misconduct. In cases where there has See 18 U.S.C. Chapter 51, Homicide. As abuse of alcohol or drugs, but to allow been no such finding, or where the a matter of policy, VA will not make the abuse of alcohol or drugs to be an service department found that an injury, regulations which would encourage excuse for homicide or to be included disease, or death was due to willful anyone to violate Federal law. in the definition of insanity for any misconduct, VA must review the One commenter objected to § 5.663(d), purpose. While Congress has not evidence as it does any other factual noting that many states permit a finding prohibited VA from including abuse of issue, and determine whether the of guilty of homicide where the killing alcohol or drugs in our definition of preponderance of the evidence shows happened during the commission of insanity, allowing the abuse of alcohol that the veteran’s claimed condition is another crime (the felony murder rule), or drugs to be used as an excuse in those service connected, with misconduct or where an intoxicated person causes determinations requiring the formation being one relevant factual question. Cf. an automobile accident that kills of an intent to do an act would be Thomas v. Nicholson, 423 F.3d 1279, someone else. The commenter suggested inconsistent with Congressional intent 1280 (Fed. Cir. 2005) (‘‘concluding that that we amend § 5.663(d) to accept only and VA policy. This is a reasonable gap- a ‘preponderance of evidence’ a court of law conviction of intentional filling decision within the Secretary’s establishing willful misconduct is homicide as binding on VA. power under 38 U.S.C. 501(a) to sufficient to rebut a presumption of We agree that such a change would be promulgate regulations to carry out the service-connection for peacetime consistent with § 5.663(a), where we laws administered by the Department. disabilities under § 105(a)’’). define homicide as ‘‘intentionally We therefore propose to make no Additionally, this pro-claimant causing the death of a person without changes based on this comment. presumption is not created by statute, excuse or justification.’’ We therefore One commenter asked that VA and we are free to establish by propose to insert the phrase, ‘‘Subject to consider including regulatory language regulation an appropriate standard of the requirement of intent in paragraph to allow all legally permissible excuses proof. (a),’’ before the phrase, ‘‘VA will accept for homicide culpability, reasoning that In this case, we mean to adopt the a court of law conviction of homicide as if intent is required to bar benefits for elevated ‘‘clearly and unmistakably’’ binding’’ in paragraph (d)(1). homicide, a lack of intent for any reason standard suggested by the commenter. A commenter noted that while we should excuse the homicide and allow Although the general standard for allow insanity as a defense to homicide, eligibility for benefits. As we stated in rebutting a presumption is the we did not define insanity. The the proposed regulation, ‘‘homicide preponderance standard (see § 5.3, commenter urged VA to revise the means intentionally causing death’’. ‘‘Standards of Proof’’), in this case, VA regulatory language to include all This language requires that the person is rebutting a finding made by another legally permissible excuses for homicide who caused the death have the intent to agency based on that agency’s specific culpability, such as from intoxication, do so, and therefore we propose not to review of the veteran’s circumstances. mental immaturity, low intelligence, make any changes based on this Thus, unlike, for example, a and other factors. We agree that a comment. presumption that a veteran who served regulatory definition of insanity is One commenter suggested that we in Vietnam was exposed to herbicides, needed, but we have already provided accept as binding all court decisions, which applies to all veterans, the one elsewhere in proposed Part 5. In civil as well as criminal, in service department’s willful misconduct § 5.1, RIN 2900–AL87, General § 5.663(d)(1). As explained in the finding is particular to one veteran, and Provisions, 71 FR 16461, Mar. 31, 2006, NPRM, we chose to accept as binding a is based on the facts of that veteran’s now proposed § 5.1, we proposed to conviction in a criminal judicial case. Therefore, it is appropriate here to define ‘‘insanity,’’ as a defense to proceeding because of the higher raise the evidentiary threshold to rebut commission of an act, as meaning a standard of proof required for a criminal that finding. person was laboring under such a defect conviction, which is guilt beyond a of reason resulting from injury, disease, reasonable doubt. We noted in the § 5.662 Alcohol and Drug Abuse or mental deficiency as not to know or NPRM that this is a higher standard We propose to delete from the understand the nature or consequence than is applicable in civil matters. As definition of alcohol abuse in of the act, or that what he or she was stated in the NPRM, we chose not to use § 5.662(a)(1), the requirement that the doing was wrong. Behavior that is a finding of liability in a civil court abuse be ‘‘sufficient to proximately attributable to a personality disorder proceeding because of the lower cause injury, disease, or death to the does not satisfy the definition of standard used in those proceedings. We person consuming such beverages.’’ The insanity. This definition excuses mental therefore propose to make no changes proximate cause requirement is immaturity and low intelligence, as based on this comment. addressed in paragraph (b), and it was urged by the commenter, to the extent This commenter noted that, in redundant to include it in the that these qualities prevent the affected § 5.663(e), concerning the effect of a definition. This makes the definition person from knowing or understanding court of law proceeding on VA findings consistent with the definition of ‘‘drug the nature or consequences of their act of insanity at the time of the killing, we abuse’’ in paragraph (a)(2), and with the or that what he or she was doing was did not specify what type of finding use of the term ‘‘abuse of alcohol’’ wrong. must be made. The commenter noted throughout the regulation. We propose to decline to include that the finding of insanity could be intoxication as a legally permissible expressed as a verdict, for example, not § 5.663 Homicide as a Bar to VA excuse for homicide in the definition of guilty by reason of insanity, or be a Benefits insanity. Congress, in 38 U.S.C. 105 and finding of fact within the court’s One commenter wanted VA to 1110, specifically prohibited VA from decision. In § 5.663(e), we stated, ‘‘VA consider mercy killings of terminally ill paying compensation for disabilities will accept as binding a court’s veterans as a justifiable homicide. This due to abuse of alcohol or drugs. It determination that a person was insane commenter equated a mercy killing with would be inconsistent with Congress’ at the time of the killing.’’ It is a veteran’s suicide. We propose to make intent if we were to prohibit granting immaterial whether the determination is

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announced in the verdict or in the body deadly force the person attacked must experienced enough in criminal or tort of the written decision. If a court retreat if he or she is consciously aware law to properly adjudicate claims determines the person was insane at the of an open, safe, and available avenue involving homicide. This commenter time of the killing, VA will accept that of escape.’’ 40 C.J.S. 133 (2008). VA has felt that the regulation was vague and determination in whatever form the applied the duty-to-retreat requirement implied that this vagueness violated the court chooses to issue the for many years and has not found that due process rights of claimants. The determination. We propose to make no it produces unjust results. Moreover, it commenter was also concerned that this changes based on this comment. is appropriate for VA to continue to regulation did not specifically provide This commenter then stated that if a apply this duty because it is still for development of evidence except for court does not make the determination, followed in most jurisdictions. that relied on in a court hearing. The then VA will need to make the One commenter was concerned that commenter felt that documentary determination. The commenter opined this regulation does not establish evidence is inherently hearsay evidence that, that determination should be based procedures or standards for adjudicating (citing the Federal Rules of Evidence, on a psychiatrist’s objective review and whether the homicide was intentional. sec. 801(c)) and was not a proper basis an independent medical opinion, not This issue would not be adjudicated any for making a determination of this solely on VA’s consultation with a differently than any other factual issue complexity and gravity, and that VA psychiatrist or an opinion from a presented in a particular case. There are intended to make a decision based only psychiatrist employed by the VA. While no special procedures applicable to a on a paper or record review. The an independent medical opinion is an finding of intentional homicide, and we commenter also noted that the claimant option we may use when needed, one is propose not to adopt any based on this in such a situation lacks the ability to not required in all cases. In § 5.92, we comment. confront an adverse witness under oath. explained the situations in which VA However, we do propose to make The commenter expressed the opinion will request an independent medical certain revisions based on this comment that this type of claim may only opinion. Absent a medical problem of and our review of this regulation. We properly be determined in an such obscurity or complexity, or one have determined that an elevated adversarial proceeding with formal rules that has generated such controversy in standard of proof should apply to of evidence. For the following reasons, the medical community at large, we determinations of intentional homicide we propose to make no changes based need not solicit an independent medical because the generally applicable on these comments. opinion. VA will determine on a case- ‘‘preponderance of the evidence’’ This regulation is an expansion of 38 by-case basis whether an independent standard does not afford the claimant CFR 3.11, ‘‘Homicide’’, and incorporates medical opinion is needed for us to sufficient protection. As noted in the the provisions of 38 CFR 3.11 and long- decide whether the veteran’s actions NPRM for this regulation, we accept a standing VA procedures for determining constituted willful misconduct. As to criminal conviction as proof that the entitlement to benefits when a killing is the requirement of a non-VA psychiatric person convicted did the killing because involved. While it does not include opinion, VA’s psychiatrists and of the high standard of proof (‘‘beyond specific provisions for the procedures to psychologists are experts, and we have a reasonable doubt’’) used in criminal be followed in making the no reason to believe that their opinions prosecutions. It is inconsistent with this determination of whether the claimant are biased against providing benefits to high standard of proof to require only a intentionally killed another without veterans. We propose to make no preponderance of the evidence to excuse or justification, the procedures changes based on this comment because support a finding that a claimant in § 5.90 for developing and VA has an adequate system for intentionally committed homicide in adjudicating a claim will be followed. obtaining medical opinions from VA cases where the claimant was not There is no reason to include the psychiatrists or psychologists as needed, convicted of such a crime. Thus, we procedures in this regulation when they or obtaining an independent medical propose to adopt the ‘‘clearly and are included elsewhere. Proposed opinion when one is needed. unmistakably’’ standard of proof in the § 5.663 is not intended to be a One commenter opposed the revised regulation. replacement for any criminal or civil § 5.663(c)(2) requirement that the person Additionally, in initially proposed legal proceeding concerning the death of have ‘‘no way to escape or retreat in § 5.663(d)(2), we stated that we will a veteran or other beneficiary and we order to’’ justify a finding that a killing ‘‘determine whether the person was decline to adopt the standards was in self-defense. The commenter felt guilty’’ of homicide. But this is not applicable to a criminal or civil court that this may create an unjust hardship correct. VA does not make proceeding. This regulation is not on claimants and may deprive some determinations of guilt or innocence; intended to function as a stand-alone claimants of benefits, even though they VA makes administrative regulation but is to be read in did not violate their state’s laws or any determinations concerning benefit conjunction with the other applicable federal criminal statute. The commenter entitlement. Hence, we propose to regulations concerning the provision of noted that some states do not require a remove this statement from the VA benefits. We propose not to create threatened person to flee and have regulation. special provisions for procedures for ‘‘stand your ground’’ laws that allow a Additionally, § 5.663(e) stated that this type of claim since no special person to defend himself or herself ‘‘VA will develop the necessary procedures are needed. without requiring the person to attempt evidence’’ to determine whether a We disagree that this regulation is to escape or retreat from the situation. person is guilty. This instruction was vague. It is very specific concerning While some states have enacted redundant because there are other what constitutes a homicide, what is an ‘‘stand your ground’’ laws, many others provisions of part 5 that adequately excuse or justification for a homicide, have not. We note that, according to address the development of claims. We and what impact a homicide has on Corpus Juris Secundum, ‘‘generally, one therefore propose to remove the phrase, claimants. The regulation provides who seeks to excuse a homicide on the ‘‘will develop the necessary evidence specific notice to claimants that a killing ground of self-defense must show that and’’ from the sentence. that would otherwise provide or he did all he reasonably could to avoid One commenter felt that VA increase the killer’s benefits, unless the killing; before resorting to the use of adjudicators were not trained and excused or with justification, will result

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in a denial of benefits. This regulation, follow, we propose not to include that forfeiture. For the following reasons, we when applied in concert with the other term in part 5. propose to make no changes based on applicable VA regulations governing this comment. § 5.676 Forfeiture for Fraud provision of benefits, provides full due The forfeiture sections of the new Part process rights to the claimant. Initially proposed § 5.676(b)(5) 5 regulations, §§ 5.676 and 5.679, do not We disagree that we will make authorized the suspension of benefits change VA’s procedures for determining decisions based only on paper evidence. when a case is recommended for forfeiture or for suspending payments While documentary evidence is forfeiture for fraud, but it did not clearly for forfeiture. Section 5.676(b)(5) normally what VA uses in adjudicating state the date that the suspension would provides that benefits will be suspended a claim, every claimant has a right to a begin. We propose to revise the rule by if forfeiture for fraud is recommended in hearing and to present evidence at that adding an effective date that is accordance with § 5.679. Proposed hearing. Determinations concerning consistent with current part 3 and the § 5.679 provides that before a homicide are not excluded from the manual provisions in the Manual M21– recommendation for forfeiture is made, right to a hearing and to present 1MR. We made a similar provision in the recommending Regional Counsel, or testimony and evidence at the hearing. § 5.677(b)(5), concerning forfeiture for in the Philippines, the Veterans Service We also disagree that documentary treasonable acts. Center Manager (VSCM), must provide written notice to the beneficiary or evidence is inherently hearsay evidence § 5.678 Forfeiture for Subversive claimant of the specific charges against and therefore not appropriate for Activity deciding a matter of this complexity and the person, a detailed statement of the In proposed § 5.678(b)(2)(ii), we gravity. The Federal Rules of Evidence, evidence supporting the charges, a propose to change ‘‘first day of the in addition to the definition of hearsay citation and discussion of the applicable month that follows the month for which cited by the commenter, also provide in statute, the right to file a statement or VA last paid benefits’’ to ‘‘day benefits sections 803, 804, and 807 exceptions to evidence within 60 days of the notice, were suspended’’, to improve the hearsay rule. Fed. R. Evid. 803, 804, the right to a hearing within 60 days readability. and 807. Most evidence considered by after the notice with representation of VA in adjudicating claims falls within § 5.679 Forfeiture Decision Procedures the person’s choosing, the limitations on one of these exceptions. However, even fees any representative may charge the One commenter noted a typographic beneficiary or claimant, and information if the evidence does not fall within one error in § 5.679(b)(6). We propose to of these exceptions, VA is still required that fees for representation are limited correct that error by replacing and that VA will not pay expenses to ‘‘consider all information and lay and ‘‘Information about that fees’’ with medical evidence of record in a case incurred by a claimant, his or her ‘‘Information that fees’’. counsel, or witnesses. Only after all of before the Secretary with respect to One commenter objected to the term these procedures are followed will a benefits under laws administered by the ‘‘recommendation for forfeiture’’ used in Regional Counsel, or in the Philippines, Secretary.’’ 38 U.S.C. 5107(b). both §§ 5.676 and 5.679, observing that the VSCM, make a recommendation for We also disagree that VA adjudicators the term is not defined. This commenter forfeiture. These procedures provide the are not trained and experienced enough felt the term, without a definition, is person subject to the forfeiture with full to properly adjudicate claims involving overly broad. We propose to make no due process rights. homicide. First, VA adjudicators do not changes based on this comment. While The commenter also felt that it would adjudicate claims under criminal or tort the commenter is correct that we do not be impossible to determine when the laws, so it is irrelevant whether they are define the term ‘‘recommendation for suspension of benefit payments would trained to adjudicate such matters. VA forfeiture,’’ the term’s use in take place since there is no definition of adjudicators make administrative relationship to VA benefits is explained ‘‘recommendation for forfeiture’’. The decisions based on the laws and in § 5.679. In this regulation, we explain commenter also asserted that under the regulations providing for benefits. who may file a recommendation for proposed rules, it is unclear whether a Second, VA has an extensive training forfeiture, what the procedures for recommendation for forfeiture is program for VA adjudicators, which preparing a recommendation for different from a final decision on includes training in determining if a forfeiture are, and who the official is forfeiture. We propose to make no killing was a homicide. Additionally, that will make a decision on the changes based on these comments. every agency of original jurisdiction has recommendation for forfeiture. This The date of suspension of benefit an Office of Regional Counsel available procedure is largely unchanged from the payments based on a recommendation to advise the adjudicators. If criminal or previous regulations and is long- for forfeiture is clearly stated in tort law is involved, VA adjudicators standing VA policy. § 5.676(b)(5) (regarding suspension for may contact the Regional Counsel, or The phrase is self-explanatory. Both fraud). Benefit payments will be the Office of General Counsel, Office of ‘‘forfeiture’’ and ‘‘recommendation’’ suspended when the recommendation the Inspector General, or other offices as have the meanings commonly assigned for forfeiture is filed with the Director appropriate, for advice and guidance. them by dictionaries of the English of the Compensation Service or We propose to make no changes based language. We do not propose to define personnel of that service designated by on this comment. the phrase since there is no need to the Director to determine whether a In addition to the changes to § 5.663 define the phrase as it is not overly claimant or payee has forfeited the right discussed above, we propose to broad or subject to multiple to all VA benefits except insurance alphabetically reorder the definitions in interpretations. We therefore propose to payments. The regulation is clear in paragraph (a) to make them easier to make no changes based on this explaining that the suspension occurs find and to be consistent with similar comment. when the recommendation for forfeiture lists within part 5. Finally, we propose One commenter was concerned that is filed with the appropriate official by to remove the references to ‘‘benefits § 5.679 would deny the claimant due Regional Counsel or the Manila VSCM. awarded, but unpaid at death’’ from process of law by suspending payments Likewise, the regulations are clear in § 5.663(f)(6). For the reasons stated in of any benefits before a final decision explaining that a recommendation for the preamble to § 5.550, and those that has been made on whether to invoke forfeiture is different from a final

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decision on forfeiture. Under § 5.679, a beneficiary is entitled to receive. U.S.C., which governs the rounding of recommendation for forfeiture is made However, if a fiduciary is court the rates and income limitations for the by a VA official described in paragraph appointed or a guardian of a minor benefits listed in proposed § 5.691(b). It (a)(2) and the final decision is made by child, this person may have the gives the Secretary discretion to round a VA official described in paragraph authority to act in the stead of the such rates and income limitations in a (a)(1). Nevertheless, to avoid the beneficiary and renounce benefits on manner that he or she ‘‘considers possibility of confusion on this point, behalf of the beneficiary, if it is to the equitable and appropriate for ease of we propose to revise paragraph (a)(2) of beneficiary’s advantage. In order to administration.’’ Another statute, 38 § 5.679 by changing the phrase ‘‘such avoid any confusion as to what type of U.S.C. 5123 of title 38 U.S.C. governs official’’ to ‘‘an official described in fiduciary is able to renounce benefits on rounding of payments of the pension paragraph (a)(1) of this section’’. behalf of the beneficiary, we propose to benefits to which proposed § 5.691(c) remove the phrase ‘‘by a fiduciary’’ from applies. It prescribes rounding § 5.680 Revocation of Forfeiture initially proposed § 5.683(b). payments down to the nearest dollar. In In § 5.680(b)(1), we propose to change In reviewing initially proposed contrast to section 5312(c)(2), section the sentence, ‘‘VA will remit a forfeiture § 5.683, we noted that it did not address 5123 does not authorize the Secretary to upon a showing that the forfeiture renouncement by a person who VA has vary from that practice according to his decision involved clear and determined is entitled, but who is not or her discretion. Because a statute unmistakable error’’, to replace the word yet receiving benefits. VA has always requires that the pension rates covered ‘‘involved’’ with ‘‘was the product of’’, permitted such persons to renounce in § 5.691(c) be rounded down, we to clearly show the role that the error benefits, so we propose to change propose to make no change based on the must have played in leading to the ‘‘beneficiary’’ to ‘‘a person entitled to commenter’s suggestion. forfeiture decision. This is merely a that benefit’’ in (b) and (d)(1) to clarify § 5.693 Beginning Date for Certain VA clarification. We also propose to that point. reorganize the contents of paragraph (b) Benefit Payments XVII. Subpart L: Payments and for clarity. The commenter indicated that this Adjustments to Payments The term ‘‘remission’’ (the term used section ‘‘should provide for payments in 38 U.S.C. 6103(d)(2) and current VA A. Payments and Adjustments to beginning as of the effective date, rather regulations in part 3) may not be Payments AM06 than as of the first day of the month commonly understood by the public In a document published in the after the month in which the payment and we therefore propose to replace it becomes effective.’’ The commenter with ‘‘revocation’’. We propose to make Federal Register on October 31, 2008, we proposed to rewrite VA regulations urged VA to make this change in order conforming changes of ‘‘remit’’ to to ‘‘be consistent with section 5.705 ‘‘revoke’’. governing payments and adjustments to payments, to be published in new 38 which institutes a reduction or § 5.681 Effective Dates: Forfeiture CFR part 5. 73 FR 65212. We provided suspension as of the effective date.’’ Pursuant to 38 U.S.C. 5111(a), payment In paragraphs (b)(1) and (3), we a 60-day comment period that ended on of a VA benefit ‘‘may not be made to an propose to change ‘‘starting date’’ to December 30, 2008. We received a individual for any period before the first ‘‘effective date’’. We do not use the term submission from one commenter, day of the calendar month following the ‘‘starting date’’ in part 5. National Organization of Veterans’ Advocates, Inc. month in which the award or increased § 5.683 Renouncement of Benefits award became effective.’’ Thus, we lack § 5.690 Where to Find Benefit Rates One commenter recommended the authority to make the change and Income Limits removing this section because in a suggested. situation where the person renouncing Initially proposed § 5.690 listed We propose to revise initially the benefit is not the guardian or benefit programs as a continuous series. proposed § 5.693(b). We propose to custodian of the veteran’s child, an To aid readability, we have revised this replace a reference to ‘‘payment’’ with unjust result may occur and the child series to read as two enumerated lists. ‘‘award or increased award’’ and add may lose benefits. Paragraph (a) would list the benefits for ‘‘or increased award’’ to a reference to If a surviving spouse of a veteran is which VA publishes rates. Paragraph (b) ‘‘award’’. We made the former change to receiving DIC and is not the guardian or would list the benefits for which VA correct an error and the latter change to custodian of the veteran’s child, then publishes income limitations. clarify the provision. Further, as the veteran’s child’s portion of the DIC Although 38 CFR 3.21, from which initially proposed, the title purported to would have been or would be § 5.690 derives, does not include death state the beginning date of certain apportioned to the veteran’s child (and compensation in its list of benefits for benefits, but the regulation text actually paid to the custodian or guardian of the which VA publishes rates, it has always required the reader to infer the child). The surviving spouse’s been VA’s practice to publish death beginning date of payments from the renouncement of benefits would not compensation rates. We therefore negative statement, ‘‘[B]enefits . . . will affect the amount paid based on the propose to add the term ‘‘death not be paid for any period before the existence of a child. The commenter compensation’’ to proposed § 5.690. first day of the month after the month was incorrect in implying that the in which the award or increased award § 5.691 Adjustments for Fractions of renouncement would affect the amount becomes effective.’’ This preclusion Dollars paid based on the existence of a child. against paying before a certain time does We therefore propose to make no The commenter stated, ‘‘For not inform the reader, or instruct VA, changes based on this comment. consistency with section 5.691(b), when payments will begin. We propose As initially proposed, § 5.683(b) section 5.691(c) should also require to state the rule affirmatively: ‘‘VA will stated that a fiduciary may not renounce rounding up, rather than down, to the pay benefits identified in this paragraph benefits on behalf of a beneficiary. The nearest dollar, the amount of Improved beginning the first day of the month main duties of a fiduciary are to Pension or Section 306 Pension after the month in which the award or preserve and disburse funds that the payable.’’ Section 5312(c)(2) of title 38 increased award becomes effective,

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except as provided in paragraph (c) of § 5.695 Surviving Spouse’s Benefit for occurring before and after that date but this section.’’ the Month of the Veteran’s Death not on that date. We propose to revise initially The commenter stated: We propose to revise initially proposed § 5.694(d), now § 5.695(d) to proposed paragraph (c) by restating it in We believe that this section should provide the active voice. We also propose to clarify that the payment made to a that payments to the surviving spouse will be deceased veteran for the month in delete the statement that paragraph (b) for the month of death and for the month which the veteran died is a payment of does not apply to the benefits listed in immediately following the veteran’s death. compensation or pension, not ‘‘the paragraph (c). It is unnecessary, because This would provide a more equitable month-of-death benefit’’. We propose to paragraph (b) would already state that it transition for the surviving spouse and would make this change because the ‘‘month- applies, ‘‘except’’ to paragraph (c). not result in confusion and inadvertent overpayments where a veteran dies during of-death benefit’’, defined in § 5.695(a), We propose to revise § 5.693(c)(4)(iii) the last days of the month and the is ‘‘a payment to a deceased veteran’s to reflect the terminology used in VA’s notification of the veteran’s death does not surviving spouse’’, not a payment to a regulations regarding the reduction of reach the VA or is not processed until the veteran. compensation and pension based on the weeks following death. Eliminating the cost Subsequent to the publication of receipt of hospital, domiciliary, or to the VA of attempting to recoup the proposed § 5.695, section 507 of Public inadvertent overpayments should cover the nursing home care. See §§ 5.720 to costs of the additional month’s payments. Law 112–154 (2012) amended 38 U.S.C. 5.730. Initially proposed 5310 by making surviving spouses § 5.693(c)(4)(iii) referred to The month-of-death benefit is whose spouse died on or after August 6, ‘‘hospitalization’’ and governed by 38 U.S.C. 5111(c) and 5310, 2012, entitled to a benefit for the month ‘‘institutionalization’’. With respect to and the proposed regulation is of a veteran’s death if, at the time of the specific types of VA care or VA consistent with those statutes. Sections veteran’s death: (1) the veteran was facilities, the terms ‘‘institution’’, 5111 and 5310 do not authorize VA to receiving disability compensation or ‘‘institutional’’, and pay a benefit for both the month of Improved Pension, or (2) the veteran is ‘‘institutionalization’’ are obsolete. death and the next month unless VA determined to have been entitled to Further, reductions based on the receipt awards the surviving spouse a death receive such compensation or pension of domiciliary care or nursing home care benefit for the month in which the for such month. The amendment also are similar to, and in some instances the veteran died and the amount of that states that if a claim for such benefits same as, reductions based on the receipt benefit is less than or equal to the was pending on the date of a veteran’s of hospital care. amount of compensation or pension the death and the pending claim is veteran would have been entitled to for subsequently granted, any additional Section 605 of Public Law 111–275, the month of death but for his or her 124 Stat. 2864, 2885–86 (2010), benefits for that month would be paid death. Barring this situation, there is no as accrued VA benefits. amended 38 U.S.C. 5111 to create a new statutory authority for issuing payment exception to the general rule on the for the month of the veteran’s death and § 5.696 Payments to or for a Child beginning date for VA benefit payments the month immediately following the Pursuing a Course of Instruction at an for veterans who were retired or veteran’s death. We propose to make no Approved Educational Institution separated from the active military change based on the commenter’s We have renumbered initially service for a catastrophic disability. We suggestion. proposed § 5.695 as § 5.696. Initially propose to incorporate this exception In initially proposed § 5.694 (b)(2), we proposed paragraph (a) defined into § 5.693 by adding new paragraphs used the phrase, ‘‘then the surviving ‘‘approved educational institution’’. (c)(10) and (e). spouse is entitled to death pension or Because that term is already defined in § 5.694 Deceased Beneficiary DIC for the month of the veteran’s § 5.220(b)(2), we now propose to simply death’’. It is more precise to say, ‘‘then cross reference that definition rather In the NPRM AM06, VA inadvertently VA will pay the surviving spouse death than repeat it in paragraph (a). omitted the provision in current 38 CFR pension or DIC for the month of the We propose to reorganize initially 3.500(g)(1). To correct this, we propose veteran’s death’’. proposed paragraph (b) to enhance to add this provision as § 5.694. We In § 5.695(c), initially proposed as clarity and to note the statutory have renumbered initially proposed § 5.694(c), we propose to add language requirement under 38 U.S.C. 1115 that § 5.694 as § 5.695, and initially to provide that the veteran must have additional disability compensation will proposed § 5.695 as § 5.696. We also been receiving disability compensation only be paid for a qualifying child omitted from the initial NPRMs an or pension at the time of death for the where the veteran has a service- equivalent to 38 CFR 3.500(g)(3) without surviving spouse to be entitled to the connected disability rated at least 30 an explanation for its exclusion. Section month-of-death benefit. Both the percent disabling. 3.500(g)(3) provides an effective date for authorizing statute, 38 U.S.C. 5310(b)(1), We propose to reorganize initially discontinuance of an award of and the current part 3 equivalent, proposed paragraph (c), pertaining to ‘‘retirement pay’’ administered by VA § 3.20(c)(1), require the veteran to have payment of dependency and indemnity upon the death of a veteran. VA no been in receipt of disability compensation (DIC) directly to a child, longer administers any veteran’s benefit compensation or pension at the time of to clarify the relationship between titled ‘‘retirement pay.’’ VA previously death. Similar language was incorrectly proposed paragraphs (c)(1) and (3). The paid emergency officers’ retirement pay omitted from the initially proposed rule. proposed paragraphs were both derived and retirement pay under Public Law In § 5.695(c), we also propose to clarify from current § 3.667(a)(3), which 77–262, which are no longer active that a provision that was inadvertently applies to a child pursuing a course of benefits. Although military retirement omitted from the initially proposed rule instruction at an approved educational pay may also be discontinued upon the (§ 5310(b)) does not authorize a month- institution upon reaching age 18. death of a veteran, VA does not of-death benefit for the surviving spouse Initially proposed paragraph (c)(3) has administer that benefit. Therefore, we of a veteran who died on December 31, now been redesignated as propose to not include an equivalent to 1996. In the initially proposed rule, we § 5.696(c)(1)(i). Initially proposed § 3.500(g)(3) in part 5. addressed the deaths of veterans paragraph (c)(1) has now been

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redesignated as § 5.696(c)(1)(ii). The Also in new § 5.697(b), we propose to programs that are based on financial distinction between the two paragraphs clarify language from initially proposed need. Paragraph (c) lists six categories of is that under paragraph (c)(1)(i), the paragraph (c). In initially proposed such expenses and then lists child was a dependent on a surviving § 5.697(c), we used the phrase ‘‘last subcategories within some of them. spouse’s DIC award immediately before illness and/or burial’’. Title 38 U.S.C. Certain expenses may fall within more the child’s 18th birthday. Under 5121(a)(6) states, ‘‘[A]ccrued benefits than one category or subcategory. In paragraph (c)(1)(ii), he or she was not. may be paid . . . to reimburse the order to ensure that VA makes decisions As initially proposed, a reference to person who bore the expense of last that grant every benefit that the laws an exception for paragraph (f)(2) was sickness and burial.’’ VA interprets the supports, we have added to the placed incorrectly in paragraph (g)(1) word ‘‘and’’ as used in the statute to introductory text of paragraph (c), ‘‘If instead of in paragraph (g)(2). We mean ‘‘or’’. We do not believe that there is more than one way to categorize propose to correct this in paragraph (g). Congress intended to require that a a medical expense under this paragraph Further, we propose to revise paragraph person have paid expenses of both the (c), VA will categorize it in the way that (g), which pertains to the last illness and burial to qualify for is most favorable to the claimant or discontinuance of benefits to a child some reimbursement. For example, if a beneficiary.’’ See 38 CFR 3.103(a) (‘‘[I]t pursuing a course of instruction at an person expended his or her savings is the obligation of VA . . . to render a approved educational institution, paying for health care bills resulting decision which grants every benefit that consistent with the part 5 convention from the veteran’s last illness and can be supported in law.’’); see also 71 for describing how VA implements a therefore could not pay for the burial, it FR 16475, Mar. 31, 2006 (proposed 38 reduction or discontinuance of benefits. would be unfair not to reimburse him or CFR 5.4(b), based on 38 CFR 3.103(a)). As initially proposed, the text of We propose to add 38 U.S.C. 3562 as her for the health care bills. We propose paragraph (c)(1) listed care typically the specific statutory authority for to change the proposed language from provided by a licensed health care § 5.696(i)(1), which bars the payment of ‘‘and/or’’ to simply ‘‘or’’ because this provider but failed to specify that in Improved Pension, additional disability term includes ‘‘and’’. Furthermore, this order for payments for the care to be compensation, and DIC to or for a child change is consistent with current § 3.1000(a)(5), which uses the phrase deducted as medical expenses under pursuing a course of instruction at an ‘‘last sickness or burial’’. paragraph (c)(1), the care must have approved educational institution who been provided by a licensed health care has elected educational assistance under § 5.705 General Effective Dates for provider. That requirement was 38 U.S.C. chapter 35. Reduction or Discontinuance of Benefits intended in the proposed rule, as shown § 5.696 Awards of Dependency and The commenter indicated that for by the heading of paragraph (c)(1), ‘‘Care Indemnity Compensation When Not All ‘‘similar reasons as what is now by a licensed health care provider’’; Dependents Apply proposed section 5.694 [now proposed nevertheless, we propose to add the 5.695], the effective date for reduction requirement to the text of the paragraph As proposed in the NPRM, § 5.696, or discontinuation of benefits should be for clarity. ‘‘Awards of dependency and indemnity the month following the triggering event In initially proposed § 5.707(c)(4), we compensation when not all dependents for the reduction or discontinuance.’’ specified the mileage rate for deductible apply’’, pertained only to awards of The effective dates for reductions and medical expenses as 20 cents per mile dependency and indemnity discontinuances are governed by 38 traveled. Following the publication of compensation. Therefore, we now U.S.C. 5112. Under section 5112, in the proposed rule, VA raised that propose to renumber it as § 5.525 in most circumstances reductions and mileage rate. VA publishes that mileage subpart G of this part under the discontinuances of disability rate on VA Form 21–8416, Medical undesignated center heading compensation, pension, or dependency Expense Report, which is updated ‘‘Dependency and Indemnity and indemnity compensation must be periodically. In order to ensure that the Compensation—Eligibility and Payment on the last day of the month in which public has the most current information, Rules for Surviving Spouses and a described event occurs. We note as we propose to change § 5.707(c)(4) to Children’’. well that the effect of this rule is that refer to ‘‘the amount stated on VA Form § 5.697 Exchange Rates for Income any new benefit that may be paid as a 21–8416, Medical Expense Report’’ Received or Expenses Paid in Foreign result of the reduction or rather than a specific rate. We also Currencies discontinuance, such as a newly elected inform the reader that this form is but exclusive benefit or a benefit to a available on the VA Web site. Initially proposed § 5.697(b) and (c) survivor or an apportionee, can be paid Initially proposed § 5.707(c)(6) began, provided the same general rule and in the month immediately after the ‘‘The following payments are ‘medical exception to the payment of benefits month in which the benefit is reduced expenses’ that will be deducted from under subpart J of this part and under or discontinued. Moreover, VA reduces income:’’. We determined that this § 5.551(e). The same general rule and or discontinues benefits only when the introductory language is redundant exception also apply to funds paid in beneficiary is no longer entitled by law because it is already stated in the accordance with §§ 5.565(b)(4), to receive the benefits. The commenter’s introductory text of paragraph (c): ‘‘The 5.566(d)(4), and 5.567(a)(4). Therefore, suggestion is that we continue to pay following payments are ‘medical we propose to combine initially such benefits for a full month after we expenses’ that will be deducted from proposed § 5.697(b) and (c) into determined that the beneficiary is not income if they are not reimbursed’’. We paragraph (b) and expand the entitled to receive them. We have no therefore propose to remove the applicability of paragraph (b) to include authority to adopt the commenter’s introductory language from paragraph the payment of these other funds. We suggestion. (c)(6). also propose to make changes to the We further propose to revise general rule and the exception, § 5.707 Deductible Medical Expenses paragraph (c)(6) to more accurately paragraphs (b)(2) and (3) respectively, to Section 5.707 describes the medical describe current VA practice. In improve readability or simplify expenses that VA will deduct for paragraph (c)(6)(ii), regarding payments language. purposes of three of VA’s benefit for an in-home attendant, we propose to

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clarify the circumstances under which We also propose to make a few sentence referred. We also propose to the attendant must be a licensed health changes to initially proposed § 5.707 to clarify the cross reference to § 5.478 to care provider. We also propose to improve readability or simplify describe more accurately the remove the initially proposed language language. circumstances under which that provision applies. The initially that states that the attendant may be a § 5.708 Eligibility Verification Reports family member. Although the proposed proposed language described § 3.260(b), language was accurate, it was Initially proposed § 5.708(a) upon which § 5.478(a) is based, but it superfluous, and including the language incorrectly referred only to Improved would not accurately describe the might confuse a reader regarding Pension and parents’ dependency and content of § 5.478(a). whether the attendant could be someone indemnity compensation (DIC). We We propose to clarify § 5.708(e)(2), from another general class, such as a propose to revise § 5.708(a) to clarify redesignated from initially proposed friend or a neighbor. that eligibility verification reports paragraph (f)(2). As initially proposed, In paragraph (c)(6)(iv), regarding (EVRs) pertain to all three VA pension the paragraph stated that VA would payments for custodial care, we propose programs—Old-Law Pension, Section notify a beneficiary that an EVR was to delete language providing that 306 Pension, and Improved Pension—as incomplete and inform the beneficiary payments made strictly for custodial well as parents’ DIC. of the information needed to complete Initially proposed § 5.708(b)(1) care were not deductible. That language the EVR. We have simplified the incorrectly indicated that VA may does not accurately describe VA’s paragraph. If VA notifies a beneficiary of require claimants to complete an EVR practice. Payments for custodial care additional information needed to annually. Only beneficiaries may be (including room and board) are complete an EVR, it is implicit in that required to file an EVR annually. We deductible if the other requirements of notice that the EVR, as filed, is have deleted the term ‘‘annually’’ from the paragraph are met. We also propose incomplete. § 5.708(b)(1). We propose to clarify initially to add conditions that clarify the Initially proposed § 5.708(c) circumstances under which the proposed § 5.708(g)(1)(ii) and incorrectly implied that certain parents redesignate it as initially proposed paragraph permits described payments receiving parents’ DIC were never to be deducted as medical expenses. paragraph (f)(1)(ii). As initially required to file an EVR. Paragraph (c) proposed, the rule was limited to In paragraph (c)(6)(v), regarding should have made clear that it was an instances in which the discontinuance payments for custodial care in a exception to the general requirement of payments was effective before the government institution, we propose to that such parents file an EVR annually. date on which benefits were suspended. add conditions to clarify the Accordingly, we propose to delete Such a limitation on the rule is circumstances under which the initially proposed paragraph (c) and misleading. Whether or not paragraph permits described payments place the material proposed in discontinuance of benefits was effective to be deducted as medical expenses. paragraph (c) in a note to revised before the date on which benefits were In paragraph (c)(6)(vi), regarding paragraph (b)(2)(i) pertaining to the suspended is irrelevant; in either case, payments to an adult day care facility, requirement for beneficiaries to file an the effective date of resumption under rest home, group home, or similar EVR annually. We have not included in this paragraph is the date the benefits facility, we propose to delete initially that note the sentence from initially were discontinued. This change is proposed language stating that if the proposed paragraph (c) stating, consistent with current practice. individual is not in need of regular aid ‘‘However, a parent receiving parents’ Initially proposed § 5.708(h), and attendance and is not housebound, DIC must notify VA whenever there is redesignated as § 5.708(g), stated, ‘‘A VA will deduct all reasonable fees paid a material change in his or her annual former beneficiary who owes or owed to the facility, but only to the extent that income.’’ That sentence is unnecessary money to VA because VA discontinued they are for medical treatment provided given that similar information is payments for failure to file an EVR by a licensed health care provider. Such provided in §§ 5.708(b)(2)(ii) and 5.709. within the time limit . . . may submit language is unnecessary in paragraph In the note to paragraph (b)(2)(i), we the EVR at any time’’, and further stated, (c)(6)(vi) because payments for medical propose to add two more groups who ‘‘If, based on information in the EVR, treatment provided by a licensed health are exempted from the annual EVR VA decides that the former beneficiary care provider are always deductible requirement, beneficiaries of Old-Law was entitled to benefits for any part of under paragraph (c)(1). Pension and Section 306 Pension and the period of time in which payment We also propose to delete paragraph certain beneficiaries of Improved had been discontinued for failure to file (c)(6)(vi)(C), which provided that if the Pension. This change is consistent with an EVR, VA will offset the debt for that adult day care or similar facility was a current practice and facilitates VA’s part of the period.’’ We have determined government facility, paragraph (c)(6)(v) efficient administration of these that in some instances, a former applied. The proposed revisions to programs. beneficiary might file a new claim after paragraph (c)(6) clarify the The third sentence of initially VA has discontinued his or her benefits. circumstances under which each of the proposed paragraph (d), redesignated as If such a claim were granted, that person paragraphs applies in order to be paragraph (c), described the action VA would become a current beneficiary. consistent with and accurately describe takes when expected income is Nevertheless, he or she might still file VA’s current practice. More specific uncertain. The sentence referred to the previously requested EVR, which direction is unnecessary and could be other more specific provisions could reduce or eliminate the debt. confusing or inaccurate. As discussed elsewhere in part 5. In order to avoid Therefore, in contemplation of that above regarding the introductory text of confusion about the purpose and scenario, we propose to add the term paragraph (c), to the extent that the meaning of the sentence, as well as its ‘‘beneficiary’’ before ‘‘former categories and subcategories of medical relationship to the first sentence in the beneficiary’’ in each sentence where expenses in paragraph (c) may overlap, paragraph, we propose to delete the ‘‘former beneficiary’’ was initially VA will always categorize a medical sentence and provide instead a clear proposed. expense in the way that is most cross reference to the relevant specific We also propose to clarify paragraph favorable to the claimant or beneficiary. provisions to which the deleted (g) to state that an EVR may be accepted

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for purpose of reducing or eliminating a that VA has granted a claim for one of used a proportional formula for debt. Finally, to be consistent with the the benefits listed in paragraph (a)(1) of compensation benefits in paragraph rest of the paragraph, we propose to this section but has not yet paid the (b)(1)(ii), we propose to add paragraph replace ‘‘offset’’ with ‘‘reduce’’ and veteran.’’ (c)(1)(ii) stating that pension paid under ‘‘completely offset’’ with ‘‘eliminated’’. We propose to revise initially paragraph (c) at the veteran’s rate will The new terms more accurately describe proposed paragraphs (b) and (c), which be paid using the proportional formula. the action that VA takes and are easier provided similar rules, to refer to the Like 38 U.S.C. 1158 discussed above, 38 for the public and VA personnel to ‘‘rate’’ of payment rather than the U.S.C. 1507 states, ‘‘Where a veteran understand. ‘‘amount’’ of a payment to be more receiving pension . . . disappears, the consistent with terminology actually Secretary may pay the pension § 5.710 Adjustments in Benefits Due to used by VA personnel. We also propose otherwise payable to such veteran’s Reduction or Discontinuance of a to revise these paragraphs, so that the spouse and children . . . Payments Benefit to Another Payee rules are phrased similarly. In these made to a spouse or child under this Section 5.710 was initially proposed paragraphs, we also propose to delete section shall not exceed the amount to as a plain language rewrite of current the initially proposed phrases ‘‘for which each would be entitled if the § 3.651. For clarity, we propose to revise benefits under this section’’ and ‘‘for veteran died of a non-service-connected § 5.710 to describe more specifically the benefits’’ in reference to a claim for disability.’’ The proportional payment procedures VA uses to adjust awards of benefits under § 5.711. We had used (or method is fair to the dependents, and it benefits that result from the reduction or not used) the phrases inconsistently in complies with section 1507. discontinuance of the same benefit to initially proposed § 5.711. The uses of Initially proposed § 5.711(d)(1) stated another payee. Initially proposed ‘‘claim’’ to refer to a claim for benefits the effective date for the discontinuance § 5.710(b) referred to VA requesting under § 5.711 are clear in context of payments to a veteran’s dependent(s), information or evidence but failed to without the deleted phrases. as a result of the veteran’s whereabouts explain when or why VA would make We propose to add a note to initially being known. However, initially such a request. We propose to revise proposed paragraph (b)(1), which states, proposed paragraph (d)(2) did not paragraph (b) to explain that if there is ‘‘Note to paragraph (b)(1): If there is a provide information about the effective sufficient information and evidence for dependent parent, then the rate for date for the discontinuance of the VA to award or increase the benefit to parents’ DIC may vary depending on the dependent’s benefits if the veteran is the payee, then VA will do so. If there parent’s annual income.’’ By law, the presumed dead. We propose to correct is not, then VA will request additional amount payable for parents’ DIC is this omission by stating that the date of information or evidence. We also clearly based on the parent’s annual income. the veteran’s death is presumed to be 7 state the effective date rules for the This is different from other DIC years after the date the veteran was last various scenarios. programs, which are not income-based. known to be alive. This is consistent We propose to add the note to ensure § 5.711 Payment to Dependents Due to with the provisions of paragraph (b) of that readers are aware of this the Disappearance of a Veteran for 90 § 5.503, ‘‘Establishing the date of distinction. Days or More death’’, as well as the statute, 38 U.S.C. In initially proposed § 5.711(b)(1)(ii), 108. We also propose to add a reference Like current § 3.656(a), initially we stated, ‘‘If VA pays disability to § 5.694, which provides the effective proposed § 5.711 provided that when a compensation pursuant to this date for the discontinuance of benefits veteran who was receiving or entitled to paragraph, then it will pay benefits in based upon the death of a beneficiary. receive disability compensation, Section equal amounts to the dependents.’’ 306 Pension, or Improved Pension However, on further review, we note § 5.712 Suspension of VA Benefits Due disappears for 90 days or more, benefits that 38 U.S.C. 1158 does not permit to the Disappearance of a Payee will be paid to the veteran’s such an equal distribution of benefits. In § 5.712(a), we propose to add the dependent(s). However, neither the Rather, it states that, payments to each effective date for the suspension of current rule nor the initially proposed dependent ‘‘shall not exceed the [rate of benefits. Paragraph (a) would state that rule defines the term ‘‘entitled to DIC] payable to each if the veteran had upon the disappearance of a payee, receive’’. The relevant statutory died from service-connected disability.’’ benefits will be suspended effective the authorities only refer to a veteran who If benefits were distributed equally, it is first day of the month after the month is ‘‘receiving compensation’’ (38 U.S.C. likely that the rate payable to some for which VA last paid benefits to the 1158) or ‘‘receiving pension’’ (38 U.S.C. dependents would exceed the rate payee. This revision is based on current 1507). VA has interpreted such statutory authorized by the statute. Accordingly, § 3.500(t). language liberally so that ‘‘under certain we propose to revise § 5.711(b)(1)(ii) to circumstances’’ actual physical receipt remove the provision regarding ‘‘equal § 5.713 Restriction on VA Benefit of the benefit is not required. See amounts’’. In its place, we propose to Payments to an Alien Located in Enemy VAOPGCPREC 7–91, 56 FR 25156 (June provide that VA will pay benefits to Territory 3, 1991); see also VAOPGCPREC 21–92, each dependent in the same proportion Initially proposed § 5.713(a) did not 58 FR 12449 (Mar. 4, 1993) (‘‘Certain as if the DIC rate were being paid. provide an effective date for opinions interpreting the terms Although this revised method is more discontinuance of benefits due to an ‘receiving’ or ‘in receipt’ of complex than the method we initially alien being located in an enemy compensation or pension as found in proposed, it is fair to the dependents, territory. We propose to correct this . . . portions of title 38, United States and it complies with section 1158 omission by adding a sentence stating Code . . . have . . . recognized limited because the rate payable can never that ‘‘VA will discontinue benefits to an exceptions to the literal meaning of the exceed the maximum rate authorized by alien located in territory described in terms.’’). Consistent with that that statute. this paragraph (a) of this section, interpretation, we propose to add a We propose to add two paragraphs, effective the first day of the month after definition of the term ‘‘entitled to (c)(1)(i) and (ii), to initially proposed the month for which VA last paid receive’’ in paragraph (a): ‘‘For purposes § 5.711(c) so that it is organized like benefits.’’ This statement is consistent of this section, entitled to receive means § 5.711(b). For the same reason we have with current VA practice, as well as the

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statute 38 U.S.C. 5308(a), which regard to any payee described in this comment. More fundamentally, we requires VA to discontinue benefits paragraph (b)(3)(iii), paragraph (b)(3)(ii) note that neither current § 3.556(f), nor ‘‘forthwith’’. would have the same effect. Any payee initially proposed § 5.720(a)(3) or (4), described in paragraph (b)(3)(iii) would regulate the practice or procedures of § 5.714 Restriction on Delivery of VA by definition no longer be subject to the VA medical staff regarding the discharge Benefit Payments to Payees Located in restriction in § 5.714(c), which only Countries on Treasury Department List of patients. Rather, they are intended to applies if a payee is located in a country guide VA Regional Offices staff in Initially proposed § 5.714(a)(1) on the Treasury Department list. determining how to adjust benefits defined ‘‘payee’’ (for purposes of part 5) Paragraph (b)(3)(ii) (which we propose when a beneficiary is receiving hospital, as a person to whom a VA benefit check to redesignate as (b)(2)(ii)) encompasses domiciliary, or nursing home care. is payable. However, § 5.1 defines other scenarios in addition to the one Current 38 CFR 3.556(f) defines ‘‘payee’’ as ‘‘a person to whom monetary addressed in initially proposed ‘‘irregular discharge’’ as ‘‘[a] discharge benefits are payable.’’ We believe that paragraph (b)(3)(iii). Therefore, we for disciplinary reasons or because of the general definition of ‘‘payee’’ in propose to delete initially proposed the patient’s refusal to accept, neglect of § 5.1 properly defines ‘‘payee’’ for paragraph (b)(3)(iii) as unnecessary. or obstruction of treatment; refusal to purposes of § 5.714. Having two § 5.720 Adjustments to Special accept transfer, or failure to return from different but very similar definitions of authorized absence’’. In initially ‘‘payee’’ in part 5 might cause Monthly Compensation Based on the Need for Regular Aid and Attendance proposed § 5.720(a)(4), we merely confusion, so we propose to remove the restated these reasons in an easier to definition from § 5.714. While a Veteran is Receiving Hospital, Domiciliary, or Nursing Home Care read format. The commenter urged that § 5.715 Claims for Undelivered or we revise our definition to: Our proposal to rewrite the VA Discontinued Benefits regulations governing hospital, incorporate language which reflects actions indicative of intentional and unreasonable We propose to change ‘‘may’’ in domiciliary, and nursing home care initially proposed § 5.715, referring to refusal of treatment such as ‘‘refusal to accept reductions and resumptions in new 38 reasonable and necessary treatment, which claims for undelivered or discontinued CFR part 5 (proposed §§ 5.720—5.730) refusal is not the result of a mental benefits, to ‘‘must’’ in paragraph (b)(1) was included in a document published condition,’’ ‘‘intentional and unreasonable to clarify that filing a claim is necessary in the Federal Register on January 14, neglect of treatment, which is not the result for the payment of benefits under 2011, that also proposed to rewrite VA of a mental condition,’’ ‘‘intentional and § 5.715. In initially proposed regulations governing apportionments to unreasonable obstruction of treatment, which § 5.715(b)(1), we had restated the dependents and payments to fiduciaries is not the result of a mental condition,’’ provisions of § 3.653 using ‘‘may’’ and incarcerated beneficiaries. 76 FR ‘‘refusal to accept medically indicated because a claim need not be filed by a transfer to another facility, which is not the 2766. We provided a 60-day comment result of a mental condition,’’ and payee who requests the alternative period that ended on March 15, 2011. ‘‘intentional and unreasonable failure to means of delivery under § 5.714(d). In We received submissions from four return from unauthorized or authorized using ‘‘may’’, we unintentionally commenters; however, only the absence, which is not the result of a mental suggested that filing a claim was submission from the National condition.’’ permissive, not mandatory. We propose Organization of Veterans’ Advocates, The commenter asserted these changes to revise § 5.715(b)(1) to clearly state Inc., pertained to the regulations are ‘‘especially important in view of the that a claim is necessary unless the governing hospital, domiciliary, and large number of VA patients who suffer exception for alternative means of nursing home care reductions and delivery applies. We also propose to resumptions. from organic brain damage or mental clarify paragraph (b)(1) to specify that, Concerning initially proposed § 5.720, illness and whose symptoms might for benefits discontinued under § 5.713, one commenter stated that the language include being resistant to treatment.’’ the paragraph applies to both the in current 38 CFR 3.556(f) defining a The purpose of the Regulation retroactive restoration of benefits not ‘‘regular discharge’’ as occurring when Rewrite Project is to make VA’s paid and the prospective resumption of the veteran has ‘‘received maximum compensation and pension regulations benefits. hospital benefits’’ is clearer than the more logical, claimant-focused, and In initially proposed § 5.715(b)(2), we new language in § 5.720(a)(3), i.e., when user-friendly, not to serve as a vehicle stated, ‘‘There is no time limit for filing ‘‘there is no medical reason to continue for making major changes to VA such a claim.’’ We have determined that care.’’ The commenter asserted that the policies. Thus, because proposed it is unnecessary to state this negative proposed definition is problematic § 5.720(a)(4) is merely a restatement of proposition and this language might because it ‘‘could interject the current regulations, the comment is mislead readers into believing that there administrative or budget issues into outside the scope of this rulemaking. is an unstated time limit for filing what is intended to be a medical 5.721 Resumption of Special Monthly claims under other sections, when in decision concerning necessary and Compensation Based on the Need for fact there is no such time limit. reasonable medical care.’’ Regular Aid and Attendance After a Accordingly, we propose to delete We disagree that our proposed Veteran Is on Temporary Absence From proposed paragraph (b)(2). definition would have the effect Hospital, Domiciliary, or Nursing Home Initially proposed paragraphs (b)(3)(ii) suggested by the commenter. To the Care or Is Discharged or Released From and (iii) respectively stated that contrary, we have clarified that a Such Care amounts that were not delivered under ‘‘medical professional’’ must make the § 5.714 will be released or a determination, and we specify that the Initially proposed § 5.721(b) stated: discontinued benefit resumed only if decision must be based on whether Discharge or release. If a veteran is discharged or released from hospital, ‘‘the payee is no longer subject to the there is a ‘‘medical reason’’ to continue domiciliary, or nursing home care, VA will restriction in § 5.714(c)’’ or ‘‘the country care. Our proposed language would resume any payment reduced or in which the payee is located is reduce, not increase, the risk that the discontinued under § 5.720 effective the date removed from the Treasury Department commenter describes. We therefore the veteran was discharged or released. list’’. We have determined that with propose to make no change based on Payment will be resumed at the rate in effect

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before the reduction based on hospital, We also propose to add ‘‘surviving become effective. Following internal domiciliary, or nursing home care, unless the child’’ where appropriate in § 5.723 to reconsideration of this provision, we evidence of record shows that a different rate state that the Medicare reduction have determined that this limitation is required. pertains to a surviving child claiming or might be overly narrow in some cases. One commenter urged VA to revise receiving pension in his or her own Therefore, we now propose that this paragraph to require ‘‘clear and right, as required by section 601 of § 5.742(d) and (e) contain no such convincing evidence’’ to resume Public Law 111–275, 124 Stat. 2864, limitation. benefits at a lower rate than the rate 2884 (2010). which had been in effect prior to the § 5.743 General Effective Dates for reduction or discontinuation. We note B. Payments to a Beneficiary Who is Awarding, Reducing, or Discontinuing that pursuant to the language ‘‘unless Eligible for More Than One Benefit VA Benefits Because of an Election the evidence of record shows that a In a document published in the In initially proposed § 5.743(a)(1), we different rate is required’’ (which we Federal Register on October 2, 2007, we stated: also use in §§ 5.721(b), 5. 725(c)(1) and proposed to establish in a new 38 CFR (2), 5.729(d)(1), and 5.730(c) and (d)), Unless otherwise provided in this part, part 5 VA regulations governing when a claim is pending and an election is VA might increase or reduce a payments to beneficiaries who are timely filed under § 5.740(d), the effective beneficiary’s payment. Such a change eligible for more than one benefit, based date for an award of an elected benefit shall would be based on a change in on regulations currently contained in 38 be the same as the effective date VA would disability level or income, or other CFR part 3. 72 FR 56136. The title of assign for the awarded benefit if no election relevant factors. The change might be this proposed rulemaking was, were required. based on newly discovered evidence or ‘‘Payments to Beneficiaries Who Are We have determined this paragraph can the discovery of clear and unmistakable Eligible for More than One Benefit’’ be shortened by removing the phrase error in a prior decision. (In a reduction (RIN: AL95). We provided a 60-day ‘‘when a claim is pending and an case, VA would of course comply with comment period that ended on election is timely filed under all applicable regulations concerning December 3, 2007. We received one § 5.740(d)’’. due process before making a reduction.) comment from a member of the general Since there are different situations public. § 5.745 Entitlement to Concurrent where VA might change benefit Receipt of Military Retired Pay and VA payments, and these could involve § 5.740 Definitions Relating to Disability Compensation various standards of proof, it would be Elections of Benefits In § 5.745(a), we propose to clarify the erroneous to specify one standard of In initially proposed § 5.740(a), we references to ‘‘the Coast and Geodetic proof here. Moreover, in part 5 we have stated: ‘‘Election means any writing, Survey’’ (C&GS) and ‘‘the stated the default standards of proof in signed by a person authorized by Environmental Science Services § 5.3 and the other standards in the § 5.741, ‘Persons who may make an Administration’’ (ESSA), because both appropriate specific sections (e.g., clear election,’ expressing a choice between entities became part of the National and unmistakable error in § 5.162). We two or more VA benefits to which the Oceanic and Atmospheric therefore propose to make no change person is entitled, or between VA and Administration (NOAA). See based on this comment. other Federal benefits to which the Reorganization Plan No. 4 of 1970, July § 5.723 Reduction of Improved person is entitled.’’ This language may 9, 1970. See Dane Konop, ‘‘175 years of Pension While a Veteran, Surviving confuse the concept of what an election service to the Nation: The History of NOAA’s National Ocean Survey—1807– Spouse, or Child Is Receiving Medicaid- is with the concept of who may file an 1982.’’ (Editor’s Preface to the 1981 Covered Care in a Nursing Facility election. An election is the written expression of choice. However, VA will National Ocean Survey Annual Report). Section 3.551(i) states, ‘‘Effective only ‘‘accept’’ elections in accordance May 1982. Unpublished. We therefore November 5, 1990, and terminating on with § 5.741. We therefore propose to propose to revise initially proposed September 30, 2011, if a veteran having remove the language, ‘‘signed by a § 5.745(a) to refer to NOAA, ‘‘(including neither spouse nor child, or a surviving person authorized by § 5.741, ‘Persons its predecessor agencies, the Coast and spouse having no child, is receiving who may make an election,’’’ from this Geodetic Survey and the Environmental Medicaid-covered nursing home care, section. For the same reason, we Science Services Administration).’’ no pension or death pension in excess propose to remove all references to In the proposed rulemaking, we stated of $90 per month shall be paid to or for § 5.741 from § 5.740. in proposed § 5.745(c)(1)(ii) that, ‘‘For the veteran or the surviving spouse for veterans receiving disability any period after the month in which the § 5.742 Finality of Elections of compensation based on a VA Medicaid payments begin.’’ Section 601 Benefits; Cancellation of Certain determination of individual of Public Law 111–275, 124 Stat. 2864, Elections unemployability, the phase-in period 2884 (2010) amended 38 U.S.C. The election finality rules in 38 CFR ends on December 30, 2009.’’ According 5503(d)(7) to extend that delimiting date part 3 pertain to reelections as well. To to statute 10 U.S.C. 1414, this phase-in through May 31, 2015, but we ensure that this concept is clear in part period actually ends on September 30, inadvertently failed to include the new 5, we propose to add to the introductory 2009. We intend to correct paragraph date in initially proposed § 5.723(a). paragraph on § 5.742, the sentence, (c)(1)(ii) to accurately reflect the statute. Subsequently, section 262 of Public Law ‘‘Reelections are subject to the finality We propose to revise the various 112–56 (2011) amended 38 U.S.C. rules stated in paragraphs (a) through (e) provisions of § 5.745 regarding 5503(d)(7) to extend that delimiting date of this section.’’ entitlement to full concurrent receipt of through September 30, 2016. When provisions similar to proposed military retired pay and veterans Subsequent to that, section 203 of § 5.742(d) and (e) were previously disability compensation based on a VA Public Law 112–260 extended the date proposed as § 5.461(b)(2) and (3), they determination of individual to November 30, 2016. We propose to provided that a request to cancel the unemployability (IU). These proposed update paragraph (a) to reflect this most election must be received within 1 year revisions are intended to implement recent amendment. from the date that the election had section 642 of the National Defense

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Authorization Act of 2008, Public Law continued to receive VA disability information to discontinue the disability 110–181, 122 Stat. 3, 157 (2008), which compensation benefits during these compensation of any veteran who failed provides that veterans who are entitled active duty periods and for several years to notify VA in advance. It is not clear to receive veterans disability after discharge, at which time he why this did not happen in the compensation based on a VA notified VA of his return to active duty. particular case described by the determination of IU are no longer The commenter said that the VA commenter, but, again, this type of subject to a phase-in period. On March regional office, citing 38 CFR oversight is very rare. 16, 2009, VA published a final rule that 3.654(b)(2), discontinued the veteran’s Third, VA may waive an overpayment amended 38 CFR 3.750 by removing disability compensation retroactively to when collection would be against language that made veterans who the date of the veteran’s first return to ‘‘equity and good conscience’’. See 38 receive disability compensation based active duty, which resulted in a large CFR 1.965. This relief was apparently on a VA determination of IU subject to overpayment. Moreover, the regional provided to the veteran described by the a phase-in period. See 74 FR 11646. To office did not reestablish entitlement to commenter. For these reasons, we avoid confusion, the final rule also disability compensation after the respectfully propose to decline to make made changes that clarified that both veteran’s discharge but before his any changes based on this comment. veterans who are rated 100 percent second period of active duty because the § 5.747 Effect of Military Readjustment disabled under the VA rating schedule veteran had not requested that VA do Pay, Disability Severance Pay, and and veterans who are entitled to receive so. According to the commenter, Separation Pay on VA Benefits 100 percent disability compensation because the veteran had continued to based on a VA determination of IU do receive his disability compensation Proposed paragraph (a) of § 5.747 not need to file a waiver of military during his return to active military informs the reader when lump-sum retired pay. The proposed revisions of service, he obviously had no reason to readjustment pay is available to a § 5.745 are therefore necessary to request reinstatement of that veteran. We propose to change ‘‘on or incorporate the amendments to § 3.750 compensation. The commenter said VA after September 15, 1981’’ to ‘‘after outlined in 74 FR 11646. should have only created an September 14, 1981’’ in order to In initially proposed § 5.745(d)(2), we overpayment in the veteran’s account conform to the format generally used for stated that, ‘‘An election filed within 1 for the period he/she was actually dates throughout part 5. year from the date of notification of VA receiving both active military service In addition, we propose to add entitlement will be considered as pay and VA disability compensation § 5.747(b)(3) to implement the National ‘timely filed’ for effective date benefits. The commenter also felt that Defense Authorization Act for Fiscal purposes.’’ We are concerned that this VA and the Department of Defense Year 2008, Public Law 110–181, sec. provision could be read out of context should do a better job in working 1646(b), 122 Stat. 3. Public Law 110– to apply to all elections. Because it together to ensure these types of cases 181 amended 10 U.S.C. 1212 to provide applies only to elections involving do not occur. The commenter noted that that no deduction may be made from military retired pay and VA disability VA benefits are intended to be dispersed VA disability compensation for compensation, we propose to insert the in a clear and consistent manner and a disability severance pay received for phrase, ‘‘between military retired pay veteran should not be adversely affected disabilities incurred in a combat zone or and disability compensation under this by creating an overpayment for periods in combat-related operations as section that is’’ after ‘‘An election’’ in the veteran is not receiving both active designated by the Department of the above-quoted sentence. Similarly, military service pay and VA disability Defense (DoD). Also, initially proposed we note that the preamble to initially compensation benefits. § 5.747(b) and (d) included as an proposed § 5.740 cited § 3.750(b) for the For the following reasons, we propose authority citation, 10 U.S.C. 1212(c). definition of a ‘‘timely filed’’ election; not to make any changes based on this This citation is no longer accurate based however, § 3.750 was amended on comment. First, we note that when VA on the changes enacted by Public Law November 20, 2006. See 71 FR 67061. awards disability compensation, VA 110–181. We propose to correct the That rulemaking did not change the regularly instructs veterans to inform authority citations in § 5.747(b) and (d) definition of ‘‘timely filed’’, but it VA if they return to active duty, so that to correctly reflect 10 U.S.C. 1212(d). redesignated the paragraphs in that VA can properly adjust their benefits. In initially proposed § 5.747(d), section so that the correct citation to the Moreover, VA annually sends letters to concerning recoupment from VA definition of ‘‘timely filed’’ should have all veterans receiving disability disability compensation for veterans read § 3.750(d). compensation notifying them whenever who received lump-sum readjustment there is a legislative increase in the pay, disability severance pay, separation § 5.746 Prohibition Against Receipt of amount of their benefits for the pay, or special separation pay, we Active Military Service Pay and VA following year. In that letter, we remind inadvertently omitted language which Benefits for the Same Period them to inform VA if they return to appears in 38 CFR 3.700(a). We now The commenter requested that the active duty, so that VA can properly propose to add the language to § 5.747. proposed regulation address situations adjust their benefits. Thus, veterans are § 5.750 Election Between VA Benefits where a veteran who is receiving VA clearly informed of their duty to notify and Compensation Under the Federal disability compensation fails to notify VA. VA when he or she returns to active Second, the types of cases described Employees’ Compensation Act for Death duty and is later assessed with an by the commenter are very rare. This is or Disability Due to Military Service overpayment due to the prohibition because, in light of the procedures Initially proposed § 5.750(a)(1) against concurrent receipt of active described above, most veterans notify described an election as ‘‘irrevocable’’. military service pay and VA disability VA in advance of their return to active To be consistent with the other sections compensation. In the commenter’s duty in order to avoid an overpayment. in this subpart using the term example, a veteran receiving VA Moreover, VA exchanges data with the ‘‘irrevocable’’, and to ensure clarity, we disability compensation benefits Department of Defense, showing which propose to add the parenthetical ‘‘(there returned to active duty for two periods veterans have returned to active duty, is no right of reelection)’’ to this of service but never informed VA. He on a quarterly basis. VA uses this paragraph.

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§ 5.757 Elections Between VA and possibly confusing in light of the ‘‘became permanently incapable of self- Disability Compensation and VA general rule that there is no limit on the support before reaching age 18’’ for Pension number of times a person may reelect a purposes of conformity with § 5.227. Initially proposed § 5.757(b) stated ‘‘A different benefit. However, this general Section 5.227 pertains to the person who is entitled to receive both rule is subject to exceptions stated in considerations that VA will use in certain sections in this subpart. death compensation and death pension determining whether a person can be recognized as a ‘‘child’’ for benefit may elect or reelect at any time to § 5.764 Payment of Survivors’ and purposes. As another example, we receive either benefit unless otherwise Dependents’ Educational Assistance propose to substitute the word ‘‘if’’ for provided in this part, . . . ’’ The and VA Death Pension or Dependency reference to death compensation here and Indemnity Compensation for the ‘‘when’’ where appropriate and vice refers to dependency and indemnity Same Period versa. We use the word ‘‘when’’ to compensation (DIC). Once a spouse or describe instances where an event is In initially proposed § 5.764, certain to occur, such as the eventual parent elects out of death compensation, ‘‘Payment of Survivors’ and they cannot elect back into the program death of a veteran. We use the word ‘‘if’’ Dependents’ Educational Assistance and to describe instances where an event is because DIC has replaced death VA death pension or dependency and compensation. We therefore propose to not certain to occur, such as the indemnity compensation for the same marriage or divorce of a veteran. change the term ‘‘death compensation’’ period’’, we proposed to restate current with ‘‘dependency and indemnity § 3.707(a) and (b) and add the statement XVIII. Subpart M: General Provisions compensation’’. that a child who is eligible for death AL74 Apportionments to Dependents We propose to add the phrase ‘‘at any pension and dependents’ educational and Payments to Fiduciaries and time’’ in the first sentence of § 5.757(c), assistance (DEA), ‘‘must elect between Incarcerated Beneficiaries so that it now reads, ‘‘A person who is VA death pension and DEA’’. We now In a document published in the entitled to receive both disability propose to consolidate the rule on Federal Register on January 14, 2011, compensation and Old-Law Pension or dependency and indemnity we proposed to rewrite VA regulations Section 306 Pension may elect at any compensation (initially proposed governing apportionments to time to receive either benefit.’’ This is § 5.764(a)(1)(i)) with the rule on death dependents and payments to fiduciaries necessary to clarify that, consistent with pension (initially proposed and incarcerated beneficiaries, to be current § 3.701(a), there is no time limit § 5.764(a)(1)(ii)) to improve readability. published in new 38 CFR part 5. 76 FR for either election or reelection under We note that current § 3.707(a) and (b) 2766. We provided a 60-day comment this paragraph. refers to ‘‘compensation’’ as one of the period that ended on March 15, 2011. Initially proposed § 5.757(f) omitted benefits to a child or spouse that cannot We received submissions from four an exception to the rule of elections be paid concurrently with DEA. In the commenters, the National Organization between VA benefits, found in initially proposed rule, we had simply of Veterans’ Advocates, Inc.; Swords to § 3.666(d). Such exception states that eliminated the reference to Plowshares; and two private ‘‘an election to receive disability ‘‘compensation’’ because a dependent of individuals. compensation in lieu of pension is not a veteran has no right to disability required for an incarcerated veteran compensation. Further review indicated § 5.770 Apportionment Claims who does not have a dependent spouse that in § 3.707(a) and (b) the references The preamble to initially proposed or child.’’ We propose to correct this to ‘‘compensation’’ are to the additional § 5.770 discussed the omission of death omission by adding § 5.757(f)(2). disability compensation payable to a compensation provisions from part 5. § 5.760 Electing Improved Death veteran based on a dependent. Hence, The preamble said that 3.450(d) refers to Pension Instead of Dependency and we propose to insert into § 5.764(a)(1)(ii) § 3.459, a death compensation Indemnity Compensation and (iii), rules governing this issue. provisions to which part 5 would have no counterpart. We failed to state that § 5.765 Payment of Compensation to a Initially proposed § 5.760 stated that a § 5.770(d) would restate the § 3.450(d) Parent Based on the Service or Death of surviving spouse who is entitled to rule of apportionment among children, Multiple Veterans receive dependency and indemnity for DIC benefits. compensation (DIC) may elect to receive In the initially proposed rule, we Improved Death Pension instead of DIC. reserved § 5.765. However, we § 5.790 Determinations of However, it did not explicitly state that inadvertently omitted § 3.700(b)(3) and Incompetency and Competency the election was revocable. Generally, now propose to add it as § 5.765, Two of the commenters addressed all elections are revocable unless ‘‘Payment of compensation to a parent initially proposed §§ 5.790(c) and (d). In specifically stated otherwise. To clarify based on the service or death of the AL74 preamble to initially proposed this point, we propose to add the multiple veterans.’’ § 5.790, ‘‘Determinations of sentence, ‘‘Such surviving spouse may incompetency and competency,’’ we Technical Corrections subsequently reelect either benefit’’ to stated: Other technical corrections will this section. Proposed § 5.790 is based on current include changes based on typographical §§ 3.353 and 3.400(x) and (y). Proposed § 5.762 Payment of Multiple VA errors or changes in wording that are Benefits to a Surviving Child Based on § 5.790(c) is based on current 38 CFR 3.353(c) necessary to maintain consistency which begins, ‘‘Unless the medical evidence the Service of More Than One Veteran throughout part 5. For example, we is clear, convincing and leaves no doubt as Initially proposed § 5.762(c)(4) stated mean to add either ‘‘disability’’ or to the person’s incompetency, the [agency of that a child has the right to elect or ‘‘death’’ in front of the term original jurisdiction] will make no reelect one or more times to receive ‘‘compensation,’’ where doing so would determination of incompetency without a definite expression regarding the question by benefits based on the death of either specify the type of compensation at the responsible medical authorities.’’ The parent in the same parental line. We issue. We also propose to replace the phrase ‘‘clear, convincing and leaves no propose to remove the phrase ‘‘one or term ‘‘helpless,’’ as it relates to a child, doubt’’ is inconsistent with traditional legal more times’’ because it is unnecessary with the more descriptive term, evidentiary standards. Traditionally, ‘‘clear

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and convincing’’ is a distinct standard. VA’s heavy administrative burden, the including the disbursement of funds ‘‘Leaves no doubt,’’ however, suggests a commenter asserted that allowing VA to without limitation, VA will give the significantly higher standard. Further, if ‘‘independently determine’’ whether an benefit of the doubt to the beneficiary compared to the standard for conviction in a individual is incompetent to receive and find that he or she is competent.’’ criminal case (‘‘beyond a reasonable doubt’’), ‘‘leaves no doubt’’ could be considered an benefits without requiring a medical As to the concerns of both even higher standard that is inconsistent examination would be a violation of the commenters about the standard of proof with other areas of the law. Therefore, we are individual’s constitutional due process in proposed § 5.790(c), for the reasons removing the term ‘‘leaves no doubt’’ and rights. Citing Mathews v. Eldridge, 424 stated in the AL74 NPRM preamble, we instead simply specifying a ‘‘clear and U.S. 319 (1976), to support that decline to include ‘‘leaves no doubt’’ in convincing’’ standard. ‘‘Clear and assertion, the commenter stated that § 5.790(c) as a standard of proof of convincing’’ is a high evidentiary standard ‘‘[i]n Mathews . . ., the Supreme Court incompetency in addition to clear and that will permit VA to make a determination acknowledged the legitimacy of a convincing evidence. of incompetency without requesting an In this regard, the first commenter essentially unnecessary medical opinion. medical examination as an appropriate Further, the standard is sufficiently high to procedural indicator of eligibility for does not refute any of the statements we prevent unwarranted determinations of welfare benefits.’’ made regarding § 5.790(c) in the incompetency. See Thomas v. Nicholson, 423 These comments demonstrate an preamble. We construe the second F.3d 1279, 1283 (Fed. Cir. 2005) (‘‘The ‘clear apparent misunderstanding of proposed commenter’s statement that ‘‘the and convincing’ standard is ‘reserved to § 3.353(c) and (d) and initially proposed Supreme Court acknowledged the protect particularly important interests in a §§ 5.790(c) and (d). Both commenters legitimacy of a medical examination as limited number of civil cases’ where there is appear to mistakenly think that ‘‘clear, an appropriate procedural indicator for a clear liberty interest at stake, such as welfare benefits’’ as an assertion that VA commitment for mental illness, deportation, convincing and leaves no doubt’’ is the or denaturalization.’’) (citations omitted). general evidentiary standard for violates an individual’s due process showing incompetency under current rights if it makes an incompetency Initially proposed § 5.790(d) was an § 3.353. It is not. It is an evidentiary determination without requiring a exact restatement of current 38 CFR standard that VA, under current medical examination. 3.353(d), except that we had proposed § 3.353(c), requires medical evidence to The second commenter’s reliance on to update the citation from the part 3 meet for an agency of original Mathews v. Eldridge is misplaced. The citation, § 3.102, to the part 5 jurisdiction to make an incompetency issue in Mathews was ‘‘whether the Due equivalent, § 5.3(b)(2) (now § 5.3(b)(3)). determination without first obtaining ‘‘a Process Clause of the Fifth Amendment Regarding initially proposed definite expression regarding the requires that prior to the termination of § 5.790(c), the first commenter asserted question by the responsible medical Social Security disability benefit that VA should never make a authorities.’’ In accordance with payments the recipient be afforded an determination of incompetency without § 3.353(d), the standard of proof to find opportunity for an evidentiary hearing.’’ medical evidence that the claimant is a beneficiary incompetent when a 424 U.S. at 323. The Court compared mentally incompetent to manage his or medical opinion is of record is the termination of welfare payments with her affairs. The commenter also urged preponderance of the evidence. the termination of Social Security that VA establish a higher burden of Contrary to the first commenter’s disability insurance (SSDI) payments. proof for incompetency: ‘‘beyond a assertion, the standard in initially The court held that ‘‘an evidentiary reasonable doubt.’’ The commenter proposed § 5.790(c) is not inconsistent hearing is not required prior to the asserted that this standard is necessary with the standard in initially proposed termination of [Social Security] to preserve consistency with the paragraph (d). Each standard serves a disability benefits and that the present evidentiary standard in initially different purpose: the standard in administrative procedures fully comport proposed § 5.790(d), which stated, paragraph (c) must be met for VA to with due process.’’ 424 U.S. at 349. ‘‘Where reasonable doubt arises make an incompetency determination Though a VA incompetency regarding a beneficiary’s mental without a medical opinion on determination is not a termination (or capacity to contract or to manage his or competency; the standard in paragraph even a reduction) of benefits, initially her own affairs, including the (d) applies to weighing all the evidence proposed § 5.790(e) affords an disbursement of funds without if a medical opinion is of record. evidentiary hearing prior to making the limitation, such doubt will be resolved Similarly, the comments demonstrate determination. We cannot agree that in favor of competency.’’ The an apparent misinterpretation of the initially proposed § 5.790 violates any commenter also asserted that the higher language of § 3.353(d) to mean that VA’s person’s right to due process; it would standard was needed ‘‘to protect standard for finding incompetency is afford beneficiaries the very process that claimants from incorrect administrative ‘‘beyond a reasonable doubt’’, a the Court determined to be necessary incompetency decisions made by lay standard which is used for criminal only when the beneficiary of a VA employees.’’ The commenter cases. In fact, the intent of this provision government benefit program is most asserted that a declaration of is to state that VA’s ‘‘reasonable doubt’’ burdened by termination of the benefit. incompetency has implications for (or benefit of the doubt) doctrine applies 424 U.S. at 339–43. many activities, including potentially to competency determinations, in the The commenter apparently construes criminalizing firearms ownership. same manner that it applies to VA the Court’s mention of physical The second commenter similarly benefit determinations that are the examinations in Mathews to mean that urged VA not to omit ‘‘leaves no doubt’’ subject of 38 CFR 3.102. In order to due process requires VA to examine a from its rewrite of § 3.353(c) and ‘‘to clarify this point, we propose to replace person as part of the process in an maintain ‘leaves no doubt’ as a standard the language of initially proposed incompetency determination. We for showing incompetence.’’ The § 5.790(d) with language that is disagree. The Court mentioned medical commenter asserted that omitting substantially the same as proposed examinations in the context of ‘‘leaves no doubt’’ from the standards § 5.3(b)(3), so that it would read, ‘‘When discussing SSA’s process in determining for determining incompetency would the evidence is in equipoise regarding a continuing entitlement to SSDI. 424 prove beneficial only to VA and not to beneficiary’s mental capacity to contract U.S. at 337 (‘‘If there is a conflict beneficiaries. While acknowledging or to manage his or her own affairs, between the information provided by

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the beneficiary and that obtained from indefinite commitment to a state mental the need to protect beneficiaries from medical sources such as his physician, hospital, and that the ‘‘beyond a incorrect competency decisions by lay or between two sources of treatment, the reasonable doubt’’ standard is not VA employees, we note that there is an agency may arrange for an examination required. Addington v. Texas, 441 U.S. administrative remedy if a beneficiary by an independent consulting 418 (1979). In contrast, liberty is not at believes he or she has been wrongly physician’’). Nothing in that process stake in VA incompetency declared incompetent: appeal to the requires the agency to examine the determinations. Board of Veterans’ Appeals and, if he or beneficiary. Likewise, VA is not The result of a VA determination of she disagree with that decision, to the required to examine a beneficiary under incompetency is appointment of a U.S. Court of Appeals for Veterans § 5.790; however, nothing in initially fiduciary to receive VA funds for the Claims. Accordingly, we make no proposed § 5.790 precludes VA from beneficiary. Clear and convincing change based on this concern of the arranging for a beneficiary’s medical evidence as to a person’s commenter. examination if necessary to determine incompetency is sufficient for the § 5.810 Incarcerated Beneficiaries— competency. specific purpose of authorizing the AOJ To the extent that the second to make an incompetency determination General Provisions and Definitions commenter means that VA should without first obtaining an additional One commenter on initially proposed simply obtain an examination in every medical opinion. The clear and § 5.810 urged VA to include felony incompetency determination, and that convincing standard provides a convictions from foreign countries in failure to do so violates constitutional beneficiary adequate protection against the definitions governing incarcerations due process, the commenter essentially an erroneous finding of incompetency in § 5.810(b) only if the courts of the argues for part 5 to create a new resulting from a determination made foreign country are subject to a standard requirement for incompetency without obtaining ‘‘a definite expression Status of Forces Agreement or have due determinations. The purpose of the as to the question by the responsible process and procedural rights Regulation Rewrite program is to make medical authorities.’’ We propose to equivalent to those which apply in VA’s compensation and pension make no change in response to an courts in the U.S. As discussed in the regulations more logical, claimant- assertion that due process requires that AL74 preamble, initially proposed focused, and user-friendly, not to serve the AOJ obtain a medical opinion before § 5.810 incorporates significant as a vehicle for making major changes determining incompetency unless protections with regard to foreign to VA policies. Thus, the comment is medical the evidence ‘‘leaves no doubt’’ convictions: it excludes incarceration in outside the scope of this rulemaking. of incompetency. a foreign prison and includes For the sake of complete discussion of The second commenter asserted that incarceration in a U.S. prison based on the comment, we also interpret it to omitting ‘‘leaves no doubt’’ would a foreign conviction only if the offense mean that VA violates a beneficiary’s benefit only VA and not beneficiaries. is equivalent to a felony (or a right to due process to allow an AOJ to We think the omission benefits both VA misdemeanor for purposes of 38 U.S.C. make an incompetency determination and its beneficiaries. Including ‘‘leaves 1505) under the laws of the U.S. based on merely ‘‘clear and convincing no doubt’’ would cause needless delay Moreover, the purpose of the Regulation evidence’’ without first obtaining a in making incompetency determinations Rewrite Project is to make VA’s medical opinion. The commenter would that conserve the benefits of those who compensation and pension regulations have us include ‘‘leaves no doubt’’, cannot manage them. That delay is a more logical, claimant-focused, and asserting that due process requires that detriment to beneficiaries. Eliminating user-friendly, not to serve as a vehicle the AOJ obtain a medical opinion unless that delay would be a benefit to persons for making major changes to VA the evidence ‘‘leaves no doubt’’ about who need the protection of a fiduciary policies. Thus, the comment is outside incompetency. We disagree. to manage their funds. Including ‘‘leaves the scope of this rulemaking. Even if the evidentiary standard for no doubt’’ in § 5.790(c) would increase Initially proposed § 5.810(c) stated, when an AOJ must obtain a medical administrative costs and consume ‘‘The 60-day periods of incarceration opinion prior to making an scarce VA human resources to obtain described in §§ 5.811 through 5.813 incompetency determination were a medical opinions that are unlikely to begin on the day after the beneficiary is matter of due process, the ‘‘clear and bring helpful new information to the convicted of a felony (or misdemeanor convincing evidence’’ standard is determination, and the risk of erroneous for pension), if the beneficiary is sufficient. ‘‘Leaves no doubt’’ would be determinations without those opinions incarcerated as of that date, even if the an excessively high evidentiary is slight. Consequently, we propose to beneficiary is not sentenced on that standard. See Mathews, 424 U.S. at 335 make no change based on this comment. date.’’ One commenter urged that the (Factors to determine the requirements Finally, we agree with the first incarceration period in paragraph (c) not of due process in various proceedings). commenter that VA should always have begin on the date of conviction ‘‘in As we explained in the prior NPRM, medical evidence in order to determine recognition of the realities of 76 FR 2777, ‘‘clear and convincing’’ and competency. Nothing in initially sentencing.’’ The commenter added ‘‘leaves no doubt’’ are inconsistent proposed § 5.790 contradicts that ‘‘[a]t the sentencing hearing, the trial evidentiary standards, the latter premise. Indeed, proposed § 5.790(c) judge might impose an alternate amounting to a standard higher even and (d) both make clear that medical sentence involving no incarceration, than that required for criminal evidence is required to find a such as home confinement or conviction, that is, beyond a reasonable beneficiary incompetent. Under these probation.’’ doubt. ‘‘Leaves no doubt’’ is a higher provisions, either clear and convincing As we stated in the preamble to AL74, evidentiary standard than in any other ‘‘medical evidence’’ of incompetency is ‘‘This [paragraph (c)] accords with 38 regulation governing VA compensation already of record or a medical opinion U.S.C. 1505 and 5313, which are or pension benefits. The Supreme Court addressing competency is obtained. concerned with the time spent has held that a ‘‘clear and convincing’’ Accordingly, we need make no change imprisoned for a felony, or for a standard of proof meets the due process to address this concern of the misdemeanor in pension cases, and not requirements for such significant commenter. Further, regarding the first with the amount of time that the deprivation of liberty as involuntary commenter’s sweeping comment about beneficiary is sentenced to serve. It also

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accords with VAOPGCPREC 3–2005, 72 Requiring veterans to inform VA adds incarcerated person.’’ This language is FR 5801, 5802 (Feb. 7, 2007).’’ The fact an additional means for VA to obtain restated for compensation (§ 5.811(b)). It that the sentence ultimately imposed by this information, thus reducing the is nearly identical to the wording found the court might not include frequency and amount of erroneous in current 38 CFR 3.665(k). incarceration does not alter VA’s duty to payments. We therefore make no change One commenter urged, ‘‘In order to limit payments when a beneficiary has based on this comment. clarify that there will be no reduction been incarcerated for more than 60 days for amounts due prior to the date of § 5.811 Limitation on Disability after being convicted. We therefore reduction, the language in subsection Compensation During Incarceration propose to make no change based on (d) should read as follows: ‘Any this comment. Initially proposed § 5.811 amounts due for periods prior to the One commenter objected to the rule implemented the statutory requirement date of limitation under this section set forth in initially proposed § 5.810(d), from 38 U.S.C. 5313 that VA limit the shall be paid to the incarcerated person requiring that claimants or beneficiaries amount of disability compensation paid without the limitation imposed under inform VA if they are incarcerated. The to a veteran who has been incarcerated this section.’ ’’ commenter asserted that the rule puts for more than 60 days after conviction We believe the language of an undue burden on incarcerated of a felony if the veteran committed the §§ 3.665(k), 5.811(b), and 5.812(d) are veterans because they are ‘‘often felony after October 7, 1980. One entirely clear that ‘‘amounts due for impoverished or unfamiliar with system commenter noted that VA’s periods prior to the date of reduction procedures’’ and that VA’s Adjudication Manual, M21–1MR, under this section’’ means the normal promulgation of this rule fails to ‘‘take requires VA employees to limit amount payable to an unincarcerated full account of the social, educational, payments when notified by one of our beneficiary. We therefore propose to and societal contexts that many federal data sharing agreements that a make no change based on this comment. incarcerated veterans come from.’’ The veteran is incarcerated. The commenter, commenter also asserted that ‘‘VA a non-profit organization that represents § 5.813 Discontinuance of Pension should be able to gather that veterans in their VA claims, stated that During Incarceration. information from the Bureau of Prisons in their experience, when VA receives Initially proposed § 5.813(b)(2) stated, or the state.’’ such notice, it presumes that the veteran in part: has been convicted of a felony rather As stated in the preamble to initially If the veteran has a spouse or child but proposed § 5.810, we believe the rule than a misdemeanor and remains elects to receive disability compensation after established in paragraph (d) is logical, incarcerated 60 days later. The VA has notified the veteran of the effect of fair, and consistent with other current commenter urged VA to add a provision electing disability compensation on the provisions that require claimants or to § 5.811(a) stating that VA will not amount available for apportionment, then the beneficiaries to inform VA of changes in limit benefits ‘‘until it receives official award of disability compensation will be circumstances affecting entitlement to verification that the veteran has been effective on the later of the date VA received benefits. See § 3.652, ‘‘Periodic incarcerated for more than 60 days after the veteran’s election or the date of certification of continued eligibility’’, a conviction of a felony.’’ discontinuance of pension under paragraph and § 3.660(a)(1), ‘‘Dependency, income As a preliminary matter, we note that (a) of this section. and estate’’. In addition, enabling VA to VA does not limit benefits based on Regarding this proposed language, adjust benefits promptly on the 61st day incarceration without providing due one commenter stated, ‘‘The of incarceration would be advantageous process under 38 CFR 3.103. Under that applicability of the ‘mailbox rule’ is not to both veterans and VA because if provision, VA notifies the veteran that readily apparent in the proposed benefits are not promptly adjusted, VA it proposes to limit benefits based on language’’ and suggested that the must establish an overpayment and information indicating that he or she is following language be added: ‘‘If the recoup the debt from the veteran. We do incarcerated. Before VA will take action veteran’s election is submitted by U.S. not believe that the social or educational to limit benefits, the veteran has 60 days Mail, the date received will be background of incarcerated veterans in which to respond (e.g., provide considered to be the postmark date.’’ prevents them from notifying VA of evidence to VA showing that he or she The commenter offered no reason why changes in circumstances. Veterans may was incarcerated for less than 61 days this rule should be incorporated into notify VA via mail, email through or incarcerated for conviction of a paragraph (b)(2). www.va.gov, or by calling our toll free misdemeanor, not a felony). We did not imply nor intend that the number, 1–800–827–1000. Moreover, the purpose of the ‘‘mailbox rule’’ apply in § 5.813. Current Regarding the suggestion that ‘‘VA Regulation Rewrite Project is to make VA regulations in 38 CFR part 3 do not should be able to gather that VA’s compensation and pension contain such a rule. The purpose of the information from the Bureau of Prisons regulations more logical, claimant- Regulation Rewrite Project is to make or the state,’’ we note that VA already focused, and user-friendly, not to serve VA’s compensation and pension has data sharing agreements with the as a vehicle for making major changes regulations more logical, claimant- Federal Bureau of Prisons (BOP) and the to VA policies. Thus, the comment focused, and user-friendly, not to serve Social Security Administration (SSA). recommending additional, new as a vehicle for making major changes Under our agreement with BOP, that procedures is outside the scope of this to VA policies. Thus, the comment is agency periodically provides VA with a rulemaking. outside the scope of this rulemaking. master record of all federal prisoners. Under our agreement with SSA, that § 5.812 Limitation on Dependency and § 5.814 Apportionment When a agency provides VA with a master Indemnity Compensation During Primary Beneficiary Is Incarcerated. record of all prisoners who are Incarceration One commenter approved of the incarcerated in state or local facilities. Initially proposed § 5.812(d) stated, regulations in AL74 limiting payments Although these records are intended to ‘‘Whenever DIC is awarded to an to incarcerated veterans and urged that be comprehensive, errors or delays may incarcerated person, any amounts due VA stop apportioning such payments to prevent VA from learning of a veteran’s for periods prior to the date of reduction the families of incarcerated veterans. incarceration in a timely manner. under this section shall be paid to the The commenter did not explain the

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basis for the comment that benefits from incarceration. For these reasons, as a vehicle for making major changes should not be apportioned to the we propose to make no change based on to VA policies. Thus, the comment is incarcerated beneficiary’s family. this comment. outside the scope of this rulemaking. Congress specifically authorized VA § 5.817 Fugitive Felons Endnote Regarding Amendatory to make apportionments of Language compensation and dependency and Consistent with 38 U.S.C. 5313B and indemnity compensation to dependents current 38 CFR 3.665–3.666, initially We intend to ultimately remove part of incarcerated beneficiaries in 38 proposed § 5.817 stated that VA will not 3 entirely, but we are not including U.S.C. 1505(b) and (c) and 5313(b), and pay or apportion benefits to, for, or on amendatory language to accomplish that such apportionments may be important behalf of a person for any period during at this time. VA will provide public in avoiding hardship to the beneficiary’s which that person is a fugitive felon. notice before removing part 3. Also consistent with those provisions, dependents during the beneficiary’s Paperwork Reduction Act incarceration. Further, the purpose of initially proposed § 5.817 defined the reduction of benefits is not to further fugitive felon as a person who is ‘‘(i) This document contains no provisions punish the incarcerated beneficiary, but Fleeing to avoid prosecution for a felony constituting a new collection of to prevent unnecessary expenditure of or for an attempt to commit a felony; (ii) information under the Paperwork government funds to persons otherwise Fleeing custody or confinement after Reduction Act (44 U.S.C. 3501–3521). supported at government expense and to conviction of a felony or conviction of Regulatory Flexibility Act avoid accumulation of funds with an attempt to commit a felony; or (iii) Fleeing to avoid custody or confinement The Secretary hereby certifies that prisoners who might use those funds to this proposed regulatory amendment purchase contraband. Prohibiting for violating a condition of probation or parole imposed for commission of a will not have a significant economic apportionment to an incarcerated impact on a substantial number of small beneficiary’s dependents would not felony under Federal or State law.’’ One commenter noted that, although entities as they are defined in the further those objectives. Regulatory Flexibility Act, 5 U.S.C. 601– Moreover, the purpose of the the proposed language mirrors the 612. This proposed amendment would Regulation Rewrite Project is to make statutory language, VA’s Adjudication not affect any small entities. Therefore, VA’s compensation and pension Manual, M21–1MR, states that a person is presumed to be a fugitive felon if pursuant to 5 U.S.C. 605(b), this regulations more logical, claimant- there is an outstanding arrest warrant proposed amendment is exempt from focused, and user-friendly, not to serve against them. This is problematic, the the initial and final regulatory flexibility as a vehicle for making major changes commenter asserted, because ‘‘the analysis requirements of sections 603 to VA policies. Thus, the comment is warrant may be many years old and it and 604. outside the scope of this rulemaking. is possible the veteran has no idea that Executive Orders 12866 and 13563 § 5.815 Resumption of Disability a warrant was even issued, let alone Compensation or Dependency and outstanding.’’ The commenter noted Executive Orders 12866 and 13563 Indemnity Compensation Upon a that the Social Security Administration direct agencies to assess the costs and Beneficiary’s Release From (SSA) has a similar statutory benefits of available regulatory Incarceration. requirement and previously operated alternatives and, when regulation is under such a presumption. The necessary, to select regulatory § 5.816 Resumption of Pension Upon a commenter noted that ‘‘multiple approaches that maximize net benefits Beneficiary’s Release From lawsuits forced SSA to alter (including potential economic, Incarceration. enforcement of [its] regulation and pay environmental, public health and safety One commenter urged VA to remove back millions of dollars in benefits to effects, and other advantages; the requirement in initially proposed affected individuals.’’ The commenter distributive impacts; and equity). §§ 5.815–5.816 that the veteran inform urged VA to revise § 5.817 to define a Executive Order 13563 (Improving VA when he or she is released from fugitive felon as ‘‘one who has a specific Regulation and Regulatory Review) incarceration, in order for VA to restore intent to flee or avoid prosecution for a emphasizes the importance of benefits by a certain date. The felony, specific intent to flee or avoid quantifying both costs and benefits, commenter noted that there is a link custody after conviction of a felony, or reducing costs, harmonizing rules, and between military service during wartime specific intent to flee or avoid a promoting flexibility. Executive Order and subsequent incarceration and asked condition of felony probation or 12866 (Regulatory Planning and that VA thank veterans for their service parole.’’ Review) defines a ‘‘significant by not requiring them ‘‘to re-legitimize As with limitations of benefits for regulatory action,’’ which requires their standing as war veterans.’’ incarcerated benefits under § 5.811, VA review by the Office of Management and We note that these provisions are not provides the same type of due process Budget (OMB), as ‘‘any regulatory action new; they have existed in 38 CFR for veterans who may be fleeing felons. that is likely to result in a rule that may: 3.665(i) and 3.666(c) for decades. We do These due process procedures would (1) Have an annual effect on the not believe it is unduly burdensome for mitigate the situations that the economy of $100 million or more or veterans to inform VA when they are commenter is concerned with. That is, adversely affect in a material way the released from incarceration; as stated the veteran has the opportunity to economy, a sector of the economy, above regarding proposed § 5.810, this present evidence showing that he or she productivity, competition, jobs, the can be easily done through a variety of was not actually fleeing, and if that is environment, public health or safety, or methods—via mail, email through shown, then VA will take no action to State, local, or tribal governments or www.va.gov, or by calling our toll free limit benefits. communities; (2) Create a serious number, 1–800–827–1000. Moreover, Moreover, the purpose of the inconsistency or otherwise interfere VA’s data sharing agreements with BOP Regulation Rewrite Project is to make with an action taken or planned by and SSA (also discussed above VA’s compensation and pension another agency; (3) Materially alter the regarding § 5.810) do not provide VA regulations more logical, claimant- budgetary impact of entitlements, with notice when a veteran is released focused, and user-friendly, not to serve grants, user fees, or loan programs or the

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rights and obligations of recipients Disabled Veterans; 64.109, Veterans OF FINAL RULE]. See § 5.0 of this thereof; or (4) Raise novel legal or policy Compensation for Service-Connected chapter, Scope and applicability. issues arising out of legal mandates, the Disability; 64.110, Veterans Dependency * * * * * President’s priorities, or the principles and Indemnity Compensation for ■ 3. Add part 5 to read as follows: set forth in this Executive Order.’’ The Service-Connected Death; 64.115, economic, interagency, budgetary, legal, Veterans Information and Assistance; PART 5—COMPENSATION, PENSION, and policy implications of this and 64.127, Monthly Allowance for BURIAL, AND RELATED BENEFITS regulatory action have been examined Children of Vietnam Veterans Born with and it has been determined not to be a Spina Bifida. Subpart A: General Provisions significant regulatory action under Signing Authority Executive Order 12866. 5.0 Scope and applicability. VA has determined that there are no The Secretary of Veterans Affairs, or 5.1 General definitions. direct costs or savings associated with designee, approved this document and 5.2 Terms and usage. this proposed rulemaking, because it authorized the undersigned to sign and 5.3 Standards of proof. will neither expand nor restrict the submit the document to the Office of the 5.4 Claims adjudication policies. rights or benefits of VA claimants or Federal Register for publication 5.5 Delegations of authority. 5.6–5.19 [Reserved] beneficiaries and will not change the electronically as an official document of way VA develops, processes, or pays a the Department of Veterans Affairs. John Subpart B: Service Requirements for claim for benefits. VA has not yet R. Gingrich, Chief of Staff, approved this Veterans determined the exact manner in which document on January 30, 2013, for Periods of War and Types of Military it will transition from the current part publication. Service 3 regulations to the part 5 regulations. Prior to publication of the final rule, VA List of Subjects in 38 CFR Parts 3 and 5.20 Dates of periods of war. will determine this and estimate the 5 5.21 Service VA recognizes as active military service. costs associated with this transition. Administrative practice and 5.22 Service VA recognizes as active duty. Executive Order 13563 also requires procedure, Claims, Disability benefits, 5.23 How VA classifies Reserve and federal agencies to make regulations Health care, Pensions, Radioactive National Guard duty. ‘‘accessible, consistent, written in plain materials, Veterans, Vietnam. 5.24 How VA classifies duty performed by language, and easy to understand’’ and Armed Services Academy cadets and requires ‘‘retrospective analysis of rules William F. Russo, midshipmen, attendees at the that may be outmoded, ineffective, Deputy Director, Office of Office of preparatory schools of the Armed insufficient, or excessively burdensome, Regulations Policy and Management, Office Services Academies, and Senior Reserve and to modify, streamline, expand, or of the General Counsel, Department of Officers’ Training Corps members. repeal them . . .’’ This NPRM is the Veterans Affairs. 5.25 How VA classifies service in the Public cornerstone of VA’s compliance with Health Service, in the Coast and For the reasons set forth in the Geodetic Survey and its successor this Executive Order. See preamble, VA proposes to amend 38 agencies, and of temporary members of www.whitehouse.gov/21stcenturygov/ CFR part 3 and further amend 38 CFR the Coast Guard Reserve. actions/21st-century-regulatory-system. part 5, as proposed to be added at 69 FR 5.26 Circumstances where a person ordered Unfunded Mandates 4820, Jan. 30, 2004, and as further to service, but who did not serve, is considered to have performed active The Unfunded Mandates Reform Act proposed to be amended at 69 FR 44614, duty. of 1995 requires, at 2 U.S.C. 1532, that July 27, 2004; 69 FR 59072, Oct. 1, 2004; 5.27 Individuals and Groups that Qualify as agencies prepare an assessment of 73 FR 19021, Apr. 8, 2008; 71 FR 37790, Having Performed Active Military anticipated costs and benefits before June 30, 2006; 70 FR 24680, May 10, Service for purposes of VA Benefits issuing any rule that may result in the 2005; 69 FR 77578, Dec. 27, 2004, 72 FR Based on Designation by the Secretary of expenditure by State, local, and tribal 10860, Mar. 9, 2007; 71 FR 16464, Mar. Defense. 31, 2006; 70 FR 61326, Oct. 21, 2005; 71 5.28 Other groups designated as having governments, in the aggregate, or by the performed active military service. private sector, of $100 million or more FR 55052, Sept. 20, 2006; 72 FR 56136, Oct. 2, 2007; 72 FR 28770, May 22, 5.29 Circumstances under which certain (adjusted annually for inflation) in any travel periods may be classified as 1 year. This proposed rule would have 2007; 72 FR 54776, Sept. 26, 2007; 71 military service. no such effect on State, local, and tribal FR 31056, May 31, 2006; and 73 FR 5.30 How VA determines if service qualifies governments, or on the private sector. 20136, Apr. 14, 2008, as follows: for benefits. Catalog of Federal Domestic Assistance PART 3—ADJUDICATION Bars to Benefits Numbers and Titles 5.31 Statutory bars to benefits. Subpart A—Pension, Compensation, The Catalog of Federal Domestic 5.32 Consideration of compelling and Dependency and Indemnity circumstances when veteran was Assistance program numbers and titles Compensation separated for AWOL. for this proposal are 64.100, 5.33 Insanity as a defense to acts leading to Automobiles and Adaptive Equipment ■ 1. The authority citation for 38 CFR a discharge or dismissal from the service for Certain Disabled Veterans and part 3, subpart A, continues to read as that might be disqualifying for benefits. Members of the Armed Forces; 64.101, follows: Military Discharges and Related Matters Burial Expenses Allowance for Veterans; 64.102, Compensation for Authority: 38 U.S.C. 501(a), unless 5.34 Effect of discharge upgrades by Armed Service-Connected Deaths for Veterans’ otherwise noted. Forces boards for the correction of ■ military records (10 U.S.C. 1552) on Dependents; 64.104, Pension for Non- 2. Add § 3.0 to read as follows: eligibility for VA benefits. Service-Connected Disability for § 3.0 Scope and applicability. 5.35 Effect of discharge upgrades by Armed Veterans; 64.105, Pension to Veterans Forces discharge review boards (10 Surviving Spouses, and Children; This part applies only to claims for U.S.C. 1553) on eligibility for VA 64.106, Specially Adapted Housing for benefits filed before [EFFECTIVE DATE benefits.

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5.36 Effect of certain special discharge 5.133 Information VA may request from 5.182 Change in status of dependents. upgrade programs on eligibility for VA financial institutions. 5.183 Effective date of award of benefits for benefits. 5.134 VA acceptance of signature by mark a dependent. 5.37 Effect of extension of service obligation or thumbprint. 5.184 Effective date of reduction or due to change in military status on 5.135 Statements certified or under oath or discontinuance based on changes in eligibility for VA benefits. affirmation. dependency status. 5.38 Effect of a voided enlistment on 5.136 Abandoned Claims. 5.185–5.190 [Reserved] eligibility for VA benefits. 5.137–5.139 [Reserved] Marriage, Divorce, and Annulment Minimum Service and Evidence of Service Evidence Requirements for Former Prisoners 5.191 Marriages VA recognizes as valid. of War (POWs) 5.39 Minimum active duty service 5.192 Evidence of marriage. requirement for VA benefits. 5.140 Determining former prisoner of war 5.193 Proof of marriage termination where 5.40 Service records as evidence of service status. evidence is in conflict or termination is and character of discharge that qualify 5.141 Medical evidence for former prisoner contested. for VA benefits. of war disability compensation claims. 5.194 Acceptance of divorce decrees. 5.41–5.49 [Reserved] 5.142–5.149 [Reserved] 5.195 [Reserved] Subpart C—Adjudicative Process, General General Effective Dates for Awards 5.196 Void or annulled marriages. 5.197 Effective date of reduction or 5.150 General effective dates of awards or VA Benefit Claims discontinuance of Improved Pension, increased benefits. disability compensation, or dependency 5.50 Applications VA Furnishes. 5.151 Date of receipt. and indemnity compensation due to 5.51 Filing a claim for disability benefits. 5.152 Effective dates based on change of marriage or remarriage. 5.52 Filing a claim for death benefits. law or VA issue. 5.53 Claims for benefits under 38 U.S.C. 5.153 Effective date of awards based on 5.198–5.199 [Reserved] 1151 for disability or death due to VA receipt of evidence prior to end of appeal Surviving Spouse Status treatment or vocational rehabilitation. period or before a final decision. 5.200 Surviving spouse: requirement of 5.54 Informal claims. 5.154–5.159 [Reserved] 5.55 Claims based on new and material valid marriage to veteran. evidence. General Rules on Revision of Decisions 5.201 Surviving spouse: requirements for 5.56 Report of examination, treatment, or 5.160 Binding effect of VA decisions. relationship with the veteran. hospitalization as a claim. 5.161 Review of benefit claims decisions. 5.202 [Reserved] 5.57 Claims definitions. 5.162 Revision of agency of original 5.203 Effect of remarriage on a surviving 5.58–5.79 [Reserved] jurisdiction decisions based on clear and spouse’s benefits. 5.204 [Reserved] Rights of Claimants and Beneficiaries unmistakable error. 5.163 Revision of decisions based on 5.205 Effective date of resumption of 5.80 Right to representation. difference of opinion. benefits to a surviving spouse due to 5.81 Submission of information, evidence, 5.164 Standard of proof for reducing or termination of a remarriage. or argument. discontinuing a benefit payment or for 5.206–5.219 [Reserved] 5.82 Right to a hearing. severing service connection based on a Child Status 5.83 Right to notice of decisions and beneficiary’s act of commission or 5.220 Status as a child for VA benefit proposed adverse actions. omission. purposes. 5.84 Restoration of benefits following 5.165 Service department records as new 5.221 Evidence to establish a parent/natural adverse action. and material evidence. child relationship. 5.85–5.89 [Reserved] 5.166 Effective dates for revision of 5.222 Evidence to establish an adopted decisions based on difference of opinion. Duties of VA child relationship. 5.167 Effective dates for reducing or 5.223 Child adopted after a veteran’s death. 5.90 VA assistance in developing claims. discontinuing a benefit payment, or for 5.224 Child status despite adoption out of 5.91 Medical evidence for disability claims. severing service connection, based on the veteran’s family. 5.92 Independent medical opinions. omission or commission, or based on 5.225 Child status based on adoption into a 5.93 Service records which are lost, administrative error or error in judgment. veteran’s family under foreign law. destroyed, or otherwise unavailable. 5.168–5.169 [Reserved] 5.94—5.98 [Reserved] 5.226 Child status based on being a General Rules on Protection or Reduction of veteran’s stepchild. Responsibilities of Claimants and Existing Ratings 5.227 Child status based on permanent Beneficiaries 5.170 Calculation of 5-year, 10-year, and 20- incapacity for self-support. 5.99 Extensions of Certain Time Limits. year periods to qualify for protection. 5.228 Exceptions applicable to termination 5.100 Time limits for claimant or 5.171 Protection of 5-year stabilized ratings. of child status based on marriage of the beneficiary responses. 5.172 Protection of continuous 20-year child. 5.101 Requirement to provide Social ratings. 5.229 Proof of age or birth. Security numbers. 5.173 Protection against reduction of Effective Dates of Changes in Child Status 5.102 Reexamination requirements. disability rating when VA revises the 5.230 Effective date of award of pension or 5.103 Failure to report for VA examination Schedule for Rating Disabilities. dependency and indemnity or reexamination. 5.174 Protection of entitlement to benefits compensation to or for a child born after 5.104 Certifying continuing eligibility to established before 1959. the veteran’s death. receive benefits. 5.175 Severance of service connection. 5.231 Effective date of reduction or 5.105–5.129 [Reserved] 5.176 [Reserved] discontinuance: child reaches age 18 or General Evidence Requirements 5.177 Effective dates for reducing or 23. 5.130 Submission of statements, evidence, discontinuing a benefit payment or for 5.232 Effective date of reduction or or information affecting entitlement to severing service connection. discontinuance: terminated adoptions. benefits. 5.178–5.179 [Reserved] 5.233 Effective date of reduction or 5.131 Applications, claims, and exchange of Subpart D: Dependents and Survivors discontinuance: stepchild no longer a evidence with Social Security member of the veteran’s household. Administration—death benefits. General Dependency Provisions 5.234 Effective date of an award, reduction, 5.132 Claims, statements, evidence, or 5.180 [Reserved] or discontinuance of benefits based on information filed abroad; authentication 5.181 Evidence needed to establish a child status due to permanent incapacity of documents from foreign countries. dependent. for self-support.

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5.235 Effective date of an award of benefits 5.281 Multiple 0 percent service-connected 1114(r)(1) or for a higher level of care due to termination of a child’s marriage. disabilities. under 38 U.S.C. 1114(r)(2). 5.236–5.237 [Reserved] 5.282 Special consideration for paired 5.333 Special monthly compensation under organs and extremities. 38 U.S.C. 1114(s). Parent Status 5.283 Total and permanent total ratings and 5.334 Special monthly compensation tables. 5.238 Status as a veteran’s parent. unemployability. 5.239 [Reserved] Special Monthly Compensation: Effective 5.284 Total disability ratings for disability Dates Subpart E: Claims for Service Connection compensation purposes. 5.335 Effective dates: special monthly and Disability Compensation 5.285 Discontinuance of total disability ratings. compensation under §§ 5.332 and 5.333. Service-Connected And Other Disability 5.286–5.299 [Reserved] 5.336 Effective dates: additional Compensation compensation for regular aid and Additional Disability Compensation Based 5.240 Disability compensation. attendance payable for a veteran’s spouse on a Dependent Parent 5.241 Service-connected disability. under § 5.321. 5.242 General principles of service 5.300 Establishing dependency of a parent. 5.337–5.339 [Reserved] connection. 5.301 [Reserved] Tuberculosis 5.243 Establishing service connection. 5.302 General income rules—parent’s 5.244 Presumption of sound condition on dependency. 5.340 Pulmonary tuberculosis shown by X- ray in active military service. entry into military service. 5.303 Deductions from income—parent’s 5.341 Presumption of service connection for 5.245 Service connection based on dependency. tuberculous disease; wartime and service aggravation of preservice injury or 5.304 Exclusions from income—parent’s after December 31, 1946. disease. dependency. 5.342 Initial grant following inactivity of 5.246 Secondary service connection— 5.305–5.310 [Reserved] disability that is due to or the result of tuberculosis. service-connected disability. Disability Compensation Effective Dates 5.343 Effect of diagnosis of active tuberculosis. 5.247 Secondary service connection— 5.311 Effective dates—award of disability 5.344 Determination of inactivity (complete nonservice-connected disability compensation. arrest) of tuberculosis. aggravated by service-connected 5.312 Effective dates—increased disability 5.345 Changes from activity in pulmonary disability. compensation. tuberculosis pension cases. 5.248 Service connection for cardiovascular 5.313 Effective dates—discontinuance 5.346 Tuberculosis and compensation disease secondary to service-connected ofcompensation for a total disability under 38 U.S.C. 1114(q) and 1156. lower extremity amputation. rating based on individual 5.347 Discontinuance of a total disability 5.249 Special service connection rules for unemployability. combat-related injury or disease. rating for service-connected tuberculosis. 5.314 Effective dates—discontinuance of 5.348–5.349 [Reserved] 5.250 Service connection for posttraumatic additional disability compensation based stress disorder. on parental dependency. Injury or Death Due to Hospitalization or 5.251 Current disabilities for which VA 5.315 Effective dates—additional disability Treatment cannot grant service connection. compensation based on decrease in the 5.252–5.259 [Reserved] 5.350 Benefits under 38 U.S.C. 1151(a) for net worth of a dependent parent. additional disability or death due to Presumptions of Service Connection for 5.316–5.319 [Reserved] hospital care, medical or surgical Certain Diseases, Disabilities, and Related Special Monthly Compensation: General treatment, examination, training and Matters rehabilitation services, or compensated 5.320 Determining need for regular aid and 5.260 General rules governing work therapy program. attendance. presumptions of service connection. 5.351 Effective dates of awards of benefits 5.321 Additional disability compensation 5.261 Certain chronic diseases VA under 38 U.S.C. 1151(a) for additional for a veteran whose spouse needs regular presumes are service connected. disability or death due to hospital care, aid and attendance. 5.262 Presumption of service connection for medical or surgical treatment, diseases associated with exposure to 5.322 Special monthly compensation: examination, training and rehabilitation certain herbicide agents. general information and definitions of services, or compensated work therapy 5.263 Presumption of service connection for disabilities. program. non-Hodgkin’s lymphoma based on Special Monthly Compensation: Specific 5.352 Effect of Federal Tort Claims Act service in Vietnam. Statutory Bases compromises, settlements, and 5.264 Diseases VA presumes are service judgments entered after November 30, connected in a former prisoner of war. 5.323 Special monthly compensation under 1962, on benefits awarded under 38 5.265 Tropical diseases VA presumes are 38 U.S.C. 1114(k). U.S.C. 1151(a) for additional disability or service connected. 5.324 Special monthly compensation under death due to hospital care, medical or 5.266 Disability compensation for certain 38 U.S.C. 1114(l). surgical treatment, examination, training qualifying chronic disabilities. 5.325 Special monthly compensation at the and rehabilitation services, or 5.267 Presumption of service connection for intermediate rate between 38 U.S.C. compensated work therapy program. conditions associated with full-body 1114(l) and (m). 5.353 Effect of Federal Tort Claims Act exposure to nitrogen mustard, sulfur 5.326 Special monthly compensation under administrative awards, compromises, mustard, or Lewisite. 38 U.S.C. 1114(m). settlements, and judgments finalized 5.268 Presumption of service connection for 5.327 Special monthly compensation at the before December 1, 1962, on benefits diseases associated with exposure to intermediate rate between 38 U.S.C. awarded under 38 U.S.C. 1151(a). ionizing radiation. 1114(m) and (n). 5.354–5.359 [Reserved] 5.269 Direct service connection for diseases 5.328 Special monthly compensation under Ratings for Health-Care Eligibility Only associated with exposure to ionizing 38 U.S.C. 1114(n). radiation. 5.329 Special monthly compensation at the 5.360 Service connection of dental 5.270 Presumption of service connection for intermediate rate between 38 U.S.C. conditions for treatment purposes. amyotrophic lateral sclerosis. 1114(n) and (o). 5.361 Health-care eligibility of a person 5.271 Presumption of service connection for 5.330 Special monthly compensation under administratively discharged under other- infectious diseases. 38 U.S.C. 1114(o). than-honorable conditions. 5.272–5.279 [Reserved] 5.331 Special monthly compensation under 5.362 Presumption of service incurrence of 38 U.S.C. 1114(p). active psychosis for purposes of hospital, Rating Service-Connected Disabilities 5.332 Additional allowance for regular aid nursing home, domiciliary, and medical 5.280 General rating principles. and attendance under 38 U.S.C. care.

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5.363 Determination of service connection 5.417 Child custody for purposes of 5.476 Net worth for Section 306 Pension for a former member of the Armed Forces determining dependency for Improved only. of Czechoslovakia or Poland. Pension. 5.477 Effective dates of reductions and 5.364 [Reserved] 5.418–5.419 [Reserved] discontinuances of Old-Law Pension and Section 306 Pension. Miscellaneous Service-Connection Improved Pension: Income Reporting 5.478 Time limit to establish continuing Regulations periods, Payments, Effective Dates, and Time entitlement to Old-Law Pension or 5.365 Claims based on the effects of tobacco Limits Section 306 Pension. products. 5.420 Reporting periods for Improved 5.479–5.499 [Reserved] Pension. 5.366 Disability due to impaired hearing. Subpart G: Dependency and Indemnity 5.421 How VA calculates an Improved 5.367 Civil service preference ratings for Compensation, Accrued Benefits, and Pension payment amount. employment in the U.S. Government. Special Rules Applicable Upon Death of a 5.422 Effective dates of changes to annual 5.368 Basic eligibility determinations: home Beneficiary loan and education benefits. Improved Pension payment amounts due 5.369 [Reserved] to a change in income. General Provisions 5.423 Improved Pension determinations 5.500 Proof of death. Subpart F: Nonservice-Connected Disability when expected annual income is Pensions and Death Pensions 5.501 Proving death by other means. uncertain. 5.502 Proving death after 7 years of Improved Pension Requirements: Veteran, 5.424 Time limits to establish entitlement continuous, unexplained absence. Surviving Spouse, and Surviving Child to Improved Pension or to increase the 5.503 Establishing the date of death. annual Improved Pension amount based 5.370 Definitions for Improved Pension. 5.504 Service-connected cause of death. on income. 5.505—5.509 [Reserved] 5.371 Eligibility and entitlement 5.425 Frequency of payment of Improved requirements for Improved Pension. Pension benefits. Dependency and Indemnity Compensation— 5.372 Wartime service requirements for 5.426–5.429 [Reserved] General Improved Pension. 5.510 Dependency and indemnity Improved Death Pension Marriage Date 5.373 Evidence of age in Improved Pension compensation—basic entitlement. Requirements and Effective Dates claims. 5.511 Special monthly dependency and 5.374–5.379 [Reserved] 5.430 Marriage date requirements for indemnity compensation. Improved Disability Pension: Disability Improved Death Pension. 5.512 Eligibility for death compensation or Determinations and Effective Dates 5.431 Effective dates of Improved Death death pension instead of dependency Pension. and indemnity compensation. 5.380 Disability requirements for Improved 5.432 Deemed valid marriages and 5.513—5.519 [Reserved] Disability Pension. contested claims for Improved Death 5.381–5.382 [Reserved] Pension. Dependency and Indemnity Compensation— 5.383 Effective dates of awards of Improved 5.433 Effective date of discontinuance of Eligibility Requirements and Payment Rules Disability Pension. Improved Death Pension payments to a for Surviving Spouses and Children 5.384–5.389 [Reserved] beneficiary no longer recognized as the 5.520 Dependency and indemnity Special Monthly Pension Eligibility for a veteran’s surviving spouse. compensation—time of marriage Veteran and Surviving Spouse 5.434 Award or discontinuance of award of requirements for surviving spouses. Improved Death Pension to a surviving 5.521 Dependency and indemnity 5.390 Special monthly pension for a veteran spouse where Improved Death Pension compensation benefits for survivors of or surviving spouse based on the need payments to a child are involved. certain veterans rated totally disabled at for regular aid and attendance. 5.435 Calculating annual Improved Pension time of death. 5.391 Special monthly pension for a veteran amounts for a surviving child. 5.522 Dependency and indemnity or surviving spouse at the housebound 5.436–5.459 [Reserved] compensation benefits for survivors of rate. certain veterans rated totally disabled at 5.392 Effective dates of awards of special Choosing Improved Pension Over Other VA time of death—offset of wrongful death monthly pension. Pension Programs damages. 5.393–5.399 [Reserved] 5.460 Definitions of certain VA pension 5.523 Dependency and indemnity Maximum Annual Pension Rates programs. compensation rate for a surviving 5.461–5.462 [Reserved] spouse. 5.400 Maximum annual pension rates for a 5.463 Effective dates of Improved Pension 5.524 Awards of dependency and veteran, surviving spouse, or surviving elections. indemnity compensation benefits to child. 5.464 Multiple pension benefits not children when there is a retroactive 5.401 Automatic adjustment of maximum payable. award to a schoolchild. annual pension rates. 5.465–5.469 [Reserved] 5.525 Awards of dependency and 5.402–5.409 [Reserved] indemnity compensation when not all Continuing Entitlement to Old-Law Pension dependents apply. Improved Pension Income, Net Worth, and or Section 306 Pension Dependency 5.526—5.529 [Reserved] 5.470 Reasons for discontinuing or reducing 5.410 Countable annual income. Old-Law Pension or Section 306 Dependency and Indemnity Compensation— 5.411 Counting a child’s income for Pension. Eligibility Requirements and Payment Rules Improved Pension payable to a child’s 5.471 Annual income limits and rates for for a Parent parent. Old-Law Pension and Section 306 5.530 Eligibility for, and payment of, a 5.412 Income exclusions for calculating Pension. parent’s dependency and indemnity countable annual income. 5.472 Rating of income for Old-Law compensation. 5.413 Income deductions for calculating Pension and Section 306 Pension. 5.531 General income rules for parent’s adjusted annual income. 5.473 Counting a dependent’s income for dependency and indemnity 5.414 Net worth determinations for Old-Law Pension and Section 306 compensation Improved Pension. Pension. 5.532 Deductions from income for parent’s 5.415 Effective dates of changes in 5.474 Deductible expenses for Section 306 dependency and indemnity Improved Pension benefits based on Pension only. compensation. changes in net worth. 5.475 Gaining or losing a dependent for 5.533 Income not counted for parent’s 5.416 Persons considered as dependents for Old-Law Pension and Section 306 dependency and indemnity Improved Pension. Pension. compensation.

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5.534 When VA counts a parent’s income Subpart H: Special and Ancillary Benefits 5.617 Burial benefits at the full-dollar rate for parent’s dependency and indemnity for Veterans, Dependents, and Survivors for certain Filipino veterans residing in compensation. the U.S. on the date of death. Special Benefits for Veterans, Dependents, 5.535 Adjustments to a parent’s 5.618 Effective dates of reductions and and Survivors dependency and indemnity discontinuances for benefits at the full- compensation when income changes. 5.580 Medal of Honor pension. dollar rate for a Filipino veteran and his 5.536 A parent’s dependency and 5.581 Awards of benefits based on special or her survivor. indemnity compensation rates. acts or private laws. 5.619–5.629 [Reserved] 5.582 Naval pension. 5.537 Payment intervals for parent’s Subpart J: Burial Benefits dependency and indemnity 5.583 Special allowance under 38 U.S.C. compensation. 1312. Burial Benefits: General 5.584 Loan guaranty for a surviving spouse: 5.630 Types of VA burial benefits. Effective Dates eligibility requirements. 5.631 Deceased veterans for whom VA may 5.585 Certification for death gratuity. 5.538 Effective date of dependency and provide burial benefits. 5.586 Certification for dependents’ indemnity compensation award. 5.632 Persons who may receive burial educational assistance. 5.539 Discontinuance of dependency and benefits. 5.587 Minimum income annuity and indemnity compensation to a person no 5.633 Claims for burial benefits. gratuitous annuity. longer recognized as the veteran’s 5.634 Reimbursable burial expenses: 5.588 Special allowance payable under surviving spouse. general. section 156 of Public Law 97–377. 5.540 Effective date and payment 5.635 Reimbursable transportation expenses 5.589 Monetary allowance for a Vietnam adjustment rules for award or for a veteran who is buried in a national veteran or a veteran with covered service discontinuance of dependency and cemetery or who died while hospitalized in Korea whose child was born with indemnity compensation to a surviving by VA. spina bifida. spouse where payments to a child are 5.636 Burial of a veteran whose remains are 5.590 Monetary allowance for a female involved. unclaimed. Vietnam veteran’s child with certain 5.541 Effective date of reduction of a 5.637 [Reserved] surviving spouse’s dependency and birth defects. indemnity compensation due to 5.591 Effective date of award for a disabled Burial Benefits: Allowances & Expenses Paid recertification of pay grade. child of a Vietnam veteran or a veteran By VA 5.542 Effective date of an award or an with covered service in Korea. 5.638 Burial allowance based on service- increased rate based on decreased 5.592 Awards under Nehmer Court orders connected death. income: parents’ dependency and for disability or death caused by a 5.639 Transportation expenses for burial in condition presumptively associated with indemnity compensation. a national cemetery. herbicide exposure. 5.543 Effective date of reduction or 5.640–5.642 [Reserved] 5.593–5.599 [Reserved] discontinuance based on increased 5.643 Burial allowance based on income: parents’ dependency and Ancillary Benefits for Certain Service- nonservice-connected death. indemnity compensation. Connected Veterans and Certain Members of 5.644 Burial allowance for a veteran who 5.544 Dependency and indemnity the Armed Forces Serving on Active Duty died while hospitalized by VA. 5.645 Plot or interment allowance. compensation rate adjustments when an 5.600–5.602 [Reserved] 5.646–5.648 [Reserved] additional survivor files a claim. 5.603 Financial assistance to purchase a 5.545 Effective dates of awards and vehicle or adaptive equipment. Burial Benefits: Other discontinuances of special monthly 5.604 Specially adapted housing under 38 dependency and indemnity 5.649 Priority of payments when there is U.S.C. 2101(a). more than one claimant. compensation. 5.605 Special home adaptation grants under 5.546–5.550 [Reserved] 5.650 Escheat (payment of burial benefits to 38 U.S.C. 2101(b). an estate with no heirs). Accrued Benefits 5.606 Clothing allowance. 5.651 Effect of contributions by 5.607–5.609 [Reserved] 5.551 Persons entitled to accrued benefits. government, public, or private 5.552 Claims for accrued benefits. Subpart I: Benefits for Certain Filipino organizations. 5.553 Notice of incomplete applications for Veterans and Survivors 5.652 Effect of forfeiture on payment of accrued benefits. burial benefits. 5.554 benefits payable as accrued benefits. Philippine Service 5.653 Eligibility based on status before 5.555 Relationship between accrued- 5.610 Eligibility for benefits based on 1958. benefits claims and claims filed by the Philippine service. 5.654–5.659 [Reserved] deceased beneficiary. 5.611 Philippine service: determination of Subpart K: Matters Affecting the Receipt of 5.556–5.563 [Reserved] periods of active military service, Benefits including, but not limited to, periods of Special Provisions active military service while in prisoner Bars to Benefits 5.564 Cancellation of checks mailed to a of war status. 5.660 In the line of duty. deceased payee; payment of such funds 5.661 Willful misconduct. as accrued benefits. Benefits and Effective Dates of Certain Filipino Veterans and Survivors 5.662 Alcohol and drug abuse. 5.565 Special rules for payment of benefits 5.663 Homicide as a bar to benefits. on deposit in a special deposit account 5.612 Overview of benefits available to a 5.664–5.674 [Reserved] when a payee living in a foreign country Filipino veteran and his or her survivor. dies. 5.613 Payment of disability compensation Forfeiture and Renouncement of the Right to 5.566 Special rules for payment of all or dependency and indemnity VA Benefits benefits except insurance payments compensation at the full dollar rate for 5.675 General forfeiture provisions. deposited in a personal-funds-of-patients certain Filipino veterans or their 5.676 Forfeiture for fraud. account when an incompetent veteran survivors residing in the U.S. 5.677 Forfeiture for treasonable acts. dies. 5.614 Effective dates of benefits at the full- 5.678 Forfeiture for subversive activity. 5.567 Special rules for payment of Old-Law dollar rate for a Filipino veteran and his 5.679 Forfeiture decision procedures. Pension when a hospitalized competent or her survivor. 5.680 Revocation of forfeiture. veteran dies. 5.615 Parents’ dependency and indemnity 5.681 Effective dates: forfeiture. 5.568 Non-payment of certain benefits upon compensation based on certain 5.682 Presidential pardon for offenses death of an incompetent veteran. Philippine service. causing forfeiture. 5.569–5.579 [Reserved] 5.616 Hospitalization in the Philippines. 5.683 Renouncement of benefits.

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5.684–5.689 [Reserved] is on temporary absence from hospital, 5.754 Effect of payment of compensation domiciliary, or nursing home care or is under the Radiation Exposure Subpart L: Payments and Adjustments to discharged or released from such care. Compensation Act of 1990 on payment Payments 5.726 Reduction of Section 306 Pension of certain VA benefits. General Rate-Setting and Payments while a veteran is receiving hospital, 5.755 [Reserved] domiciliary, or nursing home care. Rules Concerning the Receipt of Multiple VA 5.690 Where to find benefit rates and 5.727 Reduction of Old-Law Pension while income limits. a veteran is receiving hospital, Benefits 5.691 Adjustments for fractions of dollars. domiciliary, or nursing home care. 5.756 Prohibition against concurrent receipt 5.692 Fractions of one cent not paid. 5.728 Reduction of Old-Law Pension or of certain VA benefits based on the 5.693 Beginning date for certain benefit Section 306 Pension based on the need service of the same veteran. payments. for regular aid and attendance while a 5.757 Elections between VA disability 5.694 Deceased beneficiary. veteran is receiving hospital, compensation and VA pension. 5.695 Surviving spouse’s benefit for the domiciliary, or nursing home care. 5.758 Electing Improved Pension instead of month of the veteran’s death. 5.729 Resumption of Section 306 Pension Old-Law Pension or Section 306 5.696 Payments to or for a child pursuing and Section 306 Pension based on the Pension. a course of instruction at an approved need for regular aid and attendance 5.759 Election between death compensation educational institution. during a veteran’s temporary absence and dependency and indemnity 5.697 Exchange rates for income received or from hospital, domiciliary, or nursing compensation. expenses paid in foreign currencies. home care or after released from such 5.760 Electing Improved Death Pension 5.698–5.704 [Reserved] care. instead of dependency and indemnity General Reductions, Discontinuances, and 5.730 Resumption of Old-Law Pension and compensation. Resumptions Old-Law Pension based on the need for 5.761 Concurrent receipt of disability regular aid and attendance after a veteran compensation, pension, or death benefits 5.705 General effective dates for reduction is on temporary absence from hospital, by a surviving spouse based on the or discontinuance of benefits. domiciliary, or nursing home care or is service of more than one veteran. 5.706 Payments excluded in calculating discharged or released from such care. 5.762 Payment of multiple VA benefits to a income or net worth. 5.731–5.739 [Reserved] surviving child based on the service of 5.707 Deductible medical expenses. more than one veteran. 5.708 Eligibility verification reports. Payments to a Beneficiary Who Is Eligible 5.763 Payment of multiple VA benefits to 5.709 Claimant and beneficiary for More Than One Benefit: General more than one child based on the service responsibility to report changes. Provisions of the same veteran. 5.710 Adjustment in benefits due to 5.740 Definitions relating to elections of 5.764 Payment of Survivors’ and reduction or discontinuance of a benefit benefits. Dependents’ Educational Assistance and to another payee. 5.741 Persons who may make an election of VA death pension or dependency and 5.711 Payment to dependents due to the benefits. indemnity compensation for the same disappearance of a veteran for 90 days or 5.742 Finality of elections; cancellation of period. more. certain elections of benefits. 5.765 Payment of compensation to a parent 5.712 Suspension of benefits due to the 5.743 General effective dates for awarding, based on the service or death of multiple disappearance of a payee. reducing, or discontinuing VA benefits veterans. 5.713 Restriction on benefit payments to an because of an election. 5.766–5.769 [Reserved] alien located in enemy territory. 5.744 [Reserved] 5.714 Restriction on delivery of benefit Subpart M—Apportionments to Dependents payments to payees located in countries Payments From Service Departments and the and Payments to Fiduciaries and on Treasury Department list. Effects of Those Payments on VA Benefits Incarcerated Beneficiaries 5.715 Claims for undelivered or 5.745 Entitlement to concurrent receipt of Determining Eligibility for Apportionments discontinued benefits. military retired pay and VA disability 5.770 Apportionment claims. 5.716–5.719 [Reserved] compensation. 5.771 Special apportionments. Hospital, Domiciliary, and Nursing Home 5.746 Prohibition against receipt of active 5.772 Veteran’s benefits apportionable. Care Reductions and Resumptions military service pay and VA benefits for 5.773 Veterans disability compensation. the same period. 5.720 Adjustments to special monthly 5.774 Benefits not apportionable. 5.747 Effect of military readjustment pay, 5.775–5.779 [Reserved] compensation based on the need for disability severance pay, and separation 5.780 Eligibility for apportionment of regular aid and attendance while a pay on VA benefits. pension. veteran is receiving hospital, 5.748 Concurrent receipt of VA disability 5.781 Eligibility for apportionment of a domiciliary, or nursing home care. compensation and retired pay by certain surviving spouse’s dependency and 5.721 Resumption of special monthly officers of the Public Health Service. indemnity compensation. compensation based on the need for 5.749 [Reserved] 5.782 Effective date of apportionment grant regular aid and attendance after a veteran or increase. is on temporary absence from hospital, Payments From Other Federal Agencies and the Effects of Those Payments on VA Benefits 5.783 Effective date of reduction or domiciliary, or nursing home care or is discontinuance of apportionment. for a Veteran and Survivor discharged or released from such care. 5.784 Special rules for apportioned benefits 5.722 Adjustment of Improved Pension 5.750 Election between VA benefits and on death of beneficiary or apportionee. while a veteran is receiving domiciliary compensation under the Federal 5.785–5.789 [Reserved] or nursing home care. Employees’ Compensation Act for death 5.723 Adjustment of Improved Pension or disability due to military service. Incompetency and Payments to Fiduciaries while a veteran, surviving spouse, or 5.751 Election between VA benefits and and Minors child is receiving Medicaid-covered care compensation under the Federal 5.790 Determinations of incompetency and in a nursing facility. Employees’ Compensation Act for death competency. 5.724 Adjustment or discontinuance of or disability due to Federal civilian 5.791 General fiduciary payments. Improved Pension based on the need for employment. 5.792 Institutional awards. regular aid and attendance while a 5.752 Procedures for elections between VA 5.793 Limitation on payments for a child. veteran is receiving hospital, benefits and compensation under the 5.794 Beneficiary rated or reported domiciliary, or nursing home care. Federal Employees’ Compensation Act. incompetent. 5.725 Resumption of Improved Pension and 5.753 Payment of VA benefits and civil 5.795 Change of name of fiduciary. Improved Pension based on the need for service retirement benefits for the same 5.796 Child’s benefits to a fiduciary of an regular aid and attendance after a veteran period. incompetent surviving spouse.

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5.797 Testamentary capacity for VA evidence in the file on the date of his which had not been finally adjudicated insurance purposes. or her death, from a claim for benefits by VA on or before the date of death. 5.798 Payment of disability compensation pending on the date of death. Such a claim may include a deceased previously not paid because an Cross Reference: § 5.554(a) claimant’s claim to reopen a finally incompetent veteran’s estate exceeded (identifying benefits that VA may pay as $25,000. denied claim based upon new and 5.799–5.809 [Reserved] accrued benefits). material evidence or a deceased Active military service means active claimant’s claim of clear and Payments to Incarcerated Beneficiaries military, naval, or air service, as defined unmistakable error in a prior rating or 5.810 Incarcerated beneficiaries—general in 38 U.S.C. 101(24) and as described in decision. Any new and material provisions and definitions. § 5.21. evidence submitted to reopen the claim 5.811 Limitation on disability Agency of original jurisdiction means must have been in VA’s possession on compensation during incarceration. the Department of Veterans Affairs or before the date of the beneficiary’s 5.812 Limitation on dependency and activity or administration, that is, the indemnity compensation during death. incarceration. Veterans Benefits Administration, Claimant means a person applying 5.813 Discontinuance of pension during Veterans Health Administration, or for, or filing a claim for, any benefit incarceration. National Cemetery Administration, that under this part. made the initial determination on a 5.814 Apportionment when a primary (Authority: 38 U.S.C. 5100) beneficiary is incarcerated. claim. 5.815 Resumption of disability Alien means any person not a citizen Competent evidence means competent compensation or dependency and or national of the U.S. expert evidence or competent lay indemnity compensation upon a Application means a specific form the evidence. beneficiary’s release from incarceration. Secretary requires a claimant to file to (1) Competent expert evidence. Expert 5.816 Resumption of pension upon a apply for a benefit. evidence is a statement or opinion based beneficiary’s release from incarceration. all or in part on scientific, medical, 5.817 Fugitive felons. Armed Forces means the U.S. Army, Navy, Marine Corps, Air Force, and technical, or other specialized Authority: 38 U.S.C. 501(a) and as noted in Coast Guard, including their reserve knowledge. Examples include, but are specific sections. components. not limited to, medical or scientific opinions. Expert evidence is competent Subpart A—General Provisions (Authority: 38 U.S.C. 101(10)) if the person upon whose knowledge the § 5.0 Scope and applicability. Beneficiary means a person in receipt evidence is based is qualified through of benefits under this part. Under (a) Scope. Except as otherwise education, training, or experience to certain circumstances, a beneficiary may provided, this part applies only to offer the statement or opinion also meet the definition of a claimant benefits governed by this part. comprising the evidence. (b) Applicability. This part will apply (for example, when seeking an increased (2) Competent lay evidence. Lay prospectively, not retroactively. compensation rating or contesting a evidence is a statement or opinion (1) This part will apply to all claims proposed reduction in benefits). offered by a lay person. A lay person is for benefits VA receives on or after Benefit means any VA payment, a person without relevant specialized [INSERT THE EFFECTIVE DATE OF service, commodity, function, or status, education, training, or experience. Lay THE FINAL RULE]. entitlement to which is determined evidence is competent if it is provided (2) This part will apply to new actions under this part, except as otherwise by a person who has personal VA or a claimant or beneficiary initiated provided. knowledge of facts or circumstances on or after [EFFECTIVE DATE OF THE Certified statement means a statement described in the statement or opinion FINAL RULE] that pertain to either a made and signed by a person who comprising the evidence and if those running award of benefits or, subject to affirms that the statement is true and facts or circumstances can be observed § 5.162, to a prior final decision. Such accurate to the best of that person’s and described by a lay person. new actions include, but are not limited knowledge and belief. Child born of the marriage and child Note to the definition of competent to, actions involving reduction or born before the marriage. A child born evidence: In VA’s nonadversarial system, all discontinuance of benefits, pension evidence is admitted into the record. VA of the marriage means a child of a maintenance, adjustment of awards does not exclude from the record evidence deceased veteran born on or after the based on dependents, and that is not ‘‘competent’’ under this section; date of a marriage that is the basis of a apportionments. however, such evidence may not be probative (3) Part 3 of this chapter will continue surviving spouse’s entitlement to because it is not competent. to apply to all claims VA received benefits. A child born before the Custody of a child means that a before [EFFECTIVE DATE OF THE marriage means a child of a deceased person or institution is legally FINAL RULE] and all actions VA or a veteran born before the date of a responsible for the welfare of a child claimant or beneficiary initiated before marriage that is the basis of a surviving and has the legal right to exercise that date that were not finally decided spouse’s entitlement to benefits. Neither parental control over the child. Such a by that date. of these terms includes an adopted child person or institution is the ‘‘custodian’’ (4) Part 3 of this chapter will continue or a stepchild. of the child. to apply to death compensation and (Authority: 38 U.S.C. 103) Direct service connection means that Spanish-American War benefits. Claim means a formal or informal the evidence proves that the veteran’s (Authority: 38 U.S.C. 501(a)) communication in writing requesting a injury or disease resulting in disability determination of entitlement, or or death was incurred or aggravated in § 5.1 General definitions. evidencing a belief in entitlement, to a the line of duty during active military The following definitions apply to benefit under this part. service without application of the this part: presumptions of service connection in Accrued benefits means unpaid (Authority: 38 U.S.C. 5101) subpart E of this part; or of secondary periodic monetary benefits to which a Claim for benefits pending on the date service connection under § 5.246, or person was entitled, based on the of death means a claim filed with VA § 5.247.

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Discharged or released from active Fraud means any of the following, as Inspections of such homes; restrictions military service includes, but is not applicable: on beneficiaries; or limited to, either of the following (1) As used in § 5.676, fraud means an (3) A VA Nursing Home Care Unit. events: act committed when a person (Authority: 38 U.S.C. 101(28)) (1) Retirement from the active military knowingly makes or causes to be made Payee means a person to whom service; or or conspires, combines, aids, or assists monetary benefits are payable. (2) Completion of active military in, agrees to, arranges for, or in any way Political subdivision of the U.S. service for the period of time a person procures the making or presentation of means a State, as defined in this section, was obligated to serve at the time of a false or fraudulent affidavit, and the counties (or parishes), cities, or entry into that period of service in cases declaration, certificate, statement, where both of the following elements municipalities of a State. voucher, or paper, concerning any Proximately caused means that the are true: benefit except insurance payments. (i) The person was not discharged or event resulted directly from the cause (2) As used in §§ 5.196 and 5.203, and would not have occurred without released at the end of that period of time fraud means an intentional due to an intervening change in military that cause. misrepresentation of fact, or the Psychosis means any of the following status, as defined in § 5.37; and intentional failure to disclose pertinent (ii) The person would have been disorders listed in ‘‘Diagnostic and facts, for purpose of obtaining, or Statistical Manual of Mental Disorders’’, eligible for a discharge or release under assisting a person to obtain, an conditions other than dishonorable at Fourth Edition, Text Revision, of the annulment or divorce, with knowledge American Psychiatric Association the end of that period of time except for that the misrepresentation or failure to the intervening change in military (DSM–IV–TR): disclose may result in the erroneous (1) Brief Psychotic Disorder; status. granting of an annulment or divorce. (2) Delusional Disorder; (Authority: 38 U.S.C. 101(18)) (3) As used in §§ 5.172, 5.174, and (3) Psychotic Disorder Due to General Drugs means chemical substances that 5.175, fraud means an intentional Medical Condition; affect the processes of the mind or body misrepresentation of fact, or the (4) Psychotic Disorder Not Otherwise and that may cause intoxication or intentional failure to disclose pertinent Specified; harmful effects if abused. This includes facts, for purpose of obtaining or (5) Schizoaffective Disorder; (6) Schizophrenia; prescription and non-prescription retaining, or assisting a person to obtain or retain, eligibility for benefits, with (7) Schizophreniform Disorder; drugs, whether obtained legally or (8) Shared Psychotic Disorder; and illegally. knowledge that the misrepresentation or failure to disclose may result in the (9) Substance-Induced Psychotic Effective the date of the last payment Disorder. means that VA’s action is effective as of erroneous award or retention of such the first day of a month in which it is benefits. (Authority: 38 U.S.C. 1101, 1112(a) and (b)) possible to suspend, reduce, or (Authority: 38 U.S.C. 103, 110, 1159, 6103(a)) Reserve, or reservist, means a member discontinue a benefit payment without Insanity, as a defense to commission of a reserve component. creating an overpayment. of an act, means a person had such a (Authority: 38 U.S.C. 101(26)) Evidence in the file on the date of defect of reason resulting from injury, death means evidence in VA’s Reserve component means the Army, disease, or mental deficiency that he or possession on or before the date of the Naval, Marine Corps, Air Force, and she did not know or understand the deceased beneficiary’s death, even if Coast Guard Reserves and the Army nature or consequence of the act, or that such evidence was not physically National Guard and Air National Guard what he or she was doing was wrong. located in the VA claims folder on or of the U.S. Behavior that is attributable to a before the date of death. personality disorder does not satisfy the (Authority: 38 U.S.C. 101(27)) (Authority: 38 U.S.C. 501(a), 5121(a); Sec. definition of insanity. Secretary concerned means: 104, Pub. L. 108–183, 117 Stat. 2656) Nonservice-connected means, with (1) The Secretary of the Army, with Final decision means a decision on a respect to disability or death, that such respect to matters concerning the Army; claim for benefits of which VA sent the disability was not incurred or (2) The Secretary of the Navy, with claimant written notice as required by aggravated, or that the death did not respect to matters concerning the Navy § 5.83, and: result from a disability incurred or or the Marine Corps; (1) The claimant did not file a timely aggravated, in the line of duty in active (3) The Secretary of the Air Force, Notice of Disagreement in compliance military service. with respect to matters concerning the with § 20.302(a) of this chapter or, with Notice means either: Air Force; respect to simultaneously contested (1) A written communication VA (4) The Secretary of Homeland claims, in compliance with § 20.501(a) sends a claimant or beneficiary at his or Security, with respect to matters of this chapter; her latest address of record, and to his concerning the Coast Guard; (2) The claimant filed a timely Notice or her designated representative and (5) The Secretary of Health and of Disagreement, but did not file a fiduciary, if any; or Human Services, with respect to matters concerning the Public Health Service; or timely Substantive Appeal in (2) An oral communication VA (6) The Secretary of Commerce, with compliance with § 20.302(b) of this conveys to a claimant or beneficiary. respect to matters concerning the Coast chapter or, with respect to Nursing home means any of the simultaneously contested claims, in and Geodetic Survey, the Environmental following facilities: Science Services Administration, and compliance with § 20.501(b) of this (1) Any extended care facility chapter; or the National Oceanic and Atmospheric licensed by a State to provide skilled or Administration. (3) In the case of a decision by the intermediate-level nursing care; Board of Veterans’ Appeals, the decision (2) A nursing home care unit in a (Authority: 38 U.S.C. 101(25)) is final under § 20.1100 of this chapter. State veterans’ home approved for Service-connected means, with (Authority: 38 U.S.C. 7105) payment under 38 U.S.C. 1742, respect to disability or death, that such

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disability was incurred or aggravated, or example, ‘‘child’’ includes ‘‘children’’). (6) Reopening claims. The standards that the death resulted from a disability Nouns that follow this rule include, but of proof otherwise provided in this incurred or aggravated, in the line of are not limited to, the following: section do not apply when determining duty in active military service. (a) Veteran; if evidence is new and material, but do Service treatment records means, (b) Claimant; apply after the claim has been reopened. regarding an applicant for membership (c) Beneficiary; In determining whether to reopen a in, or a member of, the Armed Forces, (d) Dependent; claim based on new and material records of medical treatment and (e) Spouse; evidence, the evidence need not be in examinations conducted by the Armed (f) Child; equipoise. VA will reopen a claim when Forces or by a civilian health care (g) Parent; and the new and material evidence merely provider at Armed Forces’ expense. (h) Survivor. raises a reasonable possibility of State means each of the several States, § 5.3 Standards of proof. substantiating the claim. See § 5.55. Territories, and possessions of the U.S.; (a) Applicability. This section states (c) Rebuttal of a presumption. A the District of Columbia; and the the general standards of proof to prove presumption is rebutted if the Commonwealth of Puerto Rico. For a fact or resolve an issue material to preponderance of evidence is contrary purposes of 38 U.S.C. 101(20), and 38 deciding a claim and to rebut to the presumed fact. In rebutting a U.S.C. chapters 34 and 35, ‘‘State’’ will presumptions. These standards apply presumption under § 5.260(c), also include the Canal Zone. unless a statute or another section of affirmative evidence means evidence (Authority: 38 U.S.C. 101(20)) this part specifically provides supporting the existence of certain facts. (d) Quality of evidence to be Uniformed services means the Armed otherwise. (b) Proving a fact or issue—(1) Weight considered. VA does not simply count Forces; the Army National Guard and the pieces of evidence for or against the the Air National Guard when engaged in of the evidence. Weight of the evidence means the persuasiveness of some existence, or nonexistence, of a relevant active duty for training, inactive duty fact or issue when it is determining training, or full-time federal National evidence in comparison with other evidence. whether the applicable standard of Guard duty; the commissioned corps of proof has been met. VA will assess the the Public Health Service; and any other (2) Equipoise. Equipoise means that there is an approximate balance credibility and probative value of each category of persons designated by the piece of evidence and then weigh all the President in time of war or national between the weight of the evidence in support of and the weight of the relevant evidence for and against the emergency. fact or issue. Not all pieces of evidence VA means all organizational units of evidence against a particular finding of will carry equal weight. the Department of Veterans Affairs. fact or the resolution of a particular (e) Absence of evidence may be Veteran means any of the following issue. evidence. VA may consider the weight persons, as applicable: (3) Benefit of the doubt rule. When the of an absence of evidence in support of, (1) A person who had active military evidence is in equipoise regarding a or against, a particular fact or issue. service and who was discharged or particular fact or issue, VA will give the released under conditions other than benefit of the doubt to the claimant and (Authority: 38 U.S.C. 501(a), 5107(b)) dishonorable. the fact or issue will be resolved in the claimant’s favor. A fact or issue that § 5.4 Claims adjudication policies. (Authority: 38 U.S.C. 101(2)) would tend to disprove a claim must be (a) Ex parte proceedings and (2) A person who died in active established by a preponderance of the assistance. VA conducts its proceedings military service and whose death was evidence. The benefit of the doubt rule ex parte, which means that VA is not an not due to willful misconduct. applies even in the absence of official adversary of the claimant. VA will assist (Authority: 38 U.S.C. 1101(1), 1301) records. For example, in applying the a claimant or beneficiary in developing standard, VA will consider that no his or her claim as provided in § 5.90. (3) For death pension purposes, a official records may have been kept in (b) VA decision-making. VA will base person who died in active military cases where an alleged incident arose its decisions on a review of the entire service under conditions that prevent under combat or similarly strenuous record, including material pertaining to payment of service-connected death conditions if the incident is consistent the claimant or decedent in a death benefits. The person must have with the probable results of such known benefit claim. It is VA’s defined and completed at least 2 years of honorable hardships. consistently applied policy to military service, as certified by the (4) Preponderance of evidence. A fact administer the law under a broad Secretary concerned. See subpart F of or issue is established by a interpretation, consistent with the facts this part for eligibility information. ‘‘preponderance of evidence’’ when the shown in every case. VA will make (Authority: 38 U.S.C. 1541(h)) weight of the evidence in support of that decisions that grant every benefit that Willful misconduct, for purposes of fact or issue is greater than the weight the law supports while at the same time this part, means an act involving of the evidence against it. protecting the interests of the deliberate or intentional wrongdoing (5) Weighing the evidence. In Government. with knowledge, or wanton and reckless determining whether the evidence is in (Authority: 38 U.S.C. 501(a)) disregard, of its probable consequences. equipoise, VA will consider whether § 5.5 Delegations of authority. Civil infractions (such as mere technical evidence favoring the existence, or violation of police regulations or other nonexistence, of a relevant fact or issue (a) Entitlement to benefits. Authority ordinances) will not, by themselves, is supported or contradicted by the to make findings and decisions under constitute willful misconduct. evidence as a whole and by known the applicable laws, regulations, facts. Objectively unsupported personal precedents, and instructions, as to § 5.2 Terms and usage. speculation, suspicion, or doubt on the entitlement to benefits under this part 5 Unless otherwise provided, a singular part of a person adjudicating a claim is is delegated to the Under Secretary for noun in this part that refers to a person not a sufficient basis for concluding that Benefits, and to supervisory or also includes the plural of that noun (for the evidence is not in equipoise. adjudicative personnel within the

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Veterans Benefits Administration who (Authority: 38 U.S.C. 512(a)) service, beginning with World War I. are designated by the Under Secretary § 5.6–5.19 [Reserved] See 38 U.S.C. 101 for information for Benefits. concerning earlier periods of war. A (b) Forfeiture. Authority to determine Subpart B—Service Requirements for veteran who served during one of these whether a claimant or payee has Veterans periods had wartime service. forfeited the right to benefits or to remit a forfeiture under 38 U.S.C. 6103 or Periods of War and Types of Military 6104 is delegated to the Director, Service Compensation Service, the Director, Pension and Fiduciary Service, and to § 5.20 Dates of periods of war. personnel designated by the Directors. This section explains what periods of See § 5.679. service VA recognizes as wartime

Period Dates Exceptions/Special Rules Authority

(a) World War I ...... April 6, 1917, through November 11, 1918 .... (1) April 6, 1917, through April 1, 1920, for 38 U.S.C. 101(7), U.S. Armed Forces serving in Russia. 1101(2)(A), 1501(2). (2) April 6, 1917, through July 1, 1921, for a veteran who served in the active military service after April 5, 1917, and before No- vember 12, 1918. This extension is limited to matters concerning benefits under 38 U.S.C. chapter 11 (disability compensation and death compensation) and benefits under 38 U.S.C. chapter 15 (‘‘Pension for Non-Service-Connected Disability or Death or for Service’’). (b) World War II ...... December 7, 1941, through December 31, World War II service also includes any period 38 U.S.C. 101(8), 1946. of continuous service after December 31, 1101(2)(B). 1946, and before July 26, 1947, if that period of service began before January 1, 1947. This extension is limited to matters concerning benefits under 38 U.S.C. chapter 11 (disability compensation and death compensation). (c) Korean Conflict ...... June 27, 1950, through January 31, 1955 ..... None ...... 38 U.S.C. 101(9). (d) Vietnam Era ...... August 5, 1964, through May 7, 1975 ...... The Vietnam Era also includes February 28, 38 U.S.C. 101(29). 1961, through August 4, 1964, in the case of a veteran who served in the Republic of Vietnam during that period. (e) Persian Gulf War ... August 2, 1990, through a date to be pre- ...... 38 U.S.C. 101(33). scribed by Presidential proclamation or by law. (f) Future periods of Beginning on the date of any future declara- ...... 38 U.S.C. 101(11). war. tion of war by the Congress and ending on a date prescribed by Presidential proclamation or concurrent resolution of the Con- gress.

§ 5.21 Service VA recognizes as active (6) Active or Reserve duty for a person privileges, and property affected by military service. who was injured or died while assigned certain court-marital sentences that are (a) Definition. Active military service to the Postmaster General for the aerial set aside or disapproved), time while includes any of the following kinds of transportation of mail from February 10, serving a sentence of confinement service: 1934, through March 26, 1935. imposed by a court-martial. (1) Active duty: See § 5.22. (Authority: Pub. L. 73–140, 48 Stat. 508) (Authority: 38 U.S.C. 101(24), 501(a). (2) The service of a person certified by (b) Determination of period of active Cross Reference: § 5.1(ee), for the the Secretary of Defense as serving on military service. In determining the definition of ‘‘reserve’’. active military service. See § 5.27. period of active military service for (3) The service of a group listed in service-connected or nonservice- § 5.22 Service VA recognizes as active duty. § 5.28. connected benefits, VA will not count: (4) Active duty for training during (1) Time spent on industrial, (a) Definition. Active duty means: which the person was disabled or died agricultural, or indefinite furlough; (1) Full-time duty in the Armed from an injury or disease incurred or (2) Time lost when absent without Forces, other than active duty for aggravated in the line of duty. leave and without pay; training. (5) Inactive duty training during (3) Time while under arrest without a (2) Certain duty performed by: which the person was disabled or died subsequent acquittal or dismissal of (i) Reserve and National Guard from an injury incurred or aggravated in charges; members. See § 5.23. the line of duty or from an acute (4) Time during desertion; or (ii) Armed Services Academy cadets, myocardial infarction, a cardiac arrest, (5) Subject to 10 U.S.C. 875 midshipmen, attendees at the or a cerebrovascular accident. (concerning the restoration of rights, preparatory schools of the Armed

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Services Academies, and Senior Reserve Secretary of the Army or the Secretary such duty continues until midnight of Officers’ Training Corps members. See of the Air Force (see 32 U.S.C. 504); the date of discharge or release from the § 5.24. (v) While attending any service school respective service academy. (iii) Commissioned officers of the (except the U.S. Military Academy or (b) Preparatory school attendance— Public Health Service, Coast and the U.S. Air Force Academy), or (1) Active duty. Attendance at the Geodetic Survey and its successor attached to an organization of the Army preparatory schools of the U.S. Air agencies, and temporary members of the or the Air Force for routine practical Force Academy, the U.S. Military Coast Guard Reserves. See § 5.25. instruction during field training or other Academy, or the U.S. Naval Academy is (3) Certain service of persons ordered outdoor exercise (see 32 U.S.C. 505); or considered active duty if: to service but who did not serve. See (vi) When performed under prior (i) The person was an enlisted active- § 5.26. provisions of law that correspond to 32 duty member who was reassigned to a (b) Termination of active duty. Active U.S.C. 316, 502, 503, 504, or 505, for preparatory school without a release duty continues until midnight of the each of paragraphs (b)(2)(i) through (v) from active duty; or date of discharge or release from active of this section. (ii) The person has a commitment to duty. (3) Inactive duty training. Duty, other perform active duty in the Armed (c) Certain travel periods. Active duty than full-time duty, performed by a Forces that would be binding upon includes certain travel as provided in member of the National Guard of any disenrollment from the preparatory § 5.29. State under any of the following six school. (Authority: 38 U.S.C. 101(21)) circumstances is inactive duty training: (2) Active duty for training. Except as (i) When detailed as a rifle instructor Cross Reference: § 5.1, for the provided in paragraph (b)(1)(ii) of this for civilians (see 32 U.S.C. 316); definition of ‘‘reserve’’. section, attendance at the preparatory (ii) During required drills and field schools of the U.S. Air Force Academy, § 5.23 How VA classifies Reserve and exercises (see 32 U.S.C. 502); the U.S. Military Academy, or the U.S. National Guard duty. (iii) While participating in field Naval Academy by a person who enters (a) Reserve duty—(1) Active duty. exercises as directed by the Secretary of the preparatory school directly from the Full-time duty in the Armed Forces the Army or the Secretary of the Air Reserves, National Guard, or civilian life performed by a Reservist, other than Force (see 32 U.S.C. 503); is active duty for training. active duty for training, is active duty. (iv) While attending schools or small (c) Senior Reserve Officers’ Training (2) Active duty for training. Full-time arms competitions as prescribed by the Corps—(1) Active duty for training. Duty duty in the Armed Forces performed by Secretary of the Army or the Secretary performed by a member of a Senior a Reservist for training purposes is of the Air Force (see 32 U.S.C. 504); Reserve Officers’ Training Corps active duty for training. (v) While attending any service school program when ordered to duty for (3) Inactive duty training. Duty that is (except the U.S. Military Academy or purpose of training or a practice cruise not full-time duty and that the Secretary the U.S. Air Force Academy), or under statutes and regulations concerned prescribes for a Reservist to attached to an organization of the Army governing the Armed Forces conduct of participate in as a regular period of or the Air Force for routine practical the Senior Reserve Officers’ Training instruction or appropriate duty is instruction during field training or other Corps is active duty for training. outdoor exercise (see 32 U.S.C. 505); or inactive duty training. See 37 U.S.C. (Authority: 10 U.S.C. chapter 103) 206, ‘‘Reserves; members of National (vi) When performed under prior Guard: inactive-duty training’’. Special provisions of law that correspond to 32 (i) Paragraph (c)(1) of this section is additional duties authorized for a U.S.C. 316, 502, 503, 504, or 505, for effective October 1, 1982, for death or Reservist by an authority designated by each of paragraphs (b)(3)(i) through (v) disability resulting from injury or the Secretary concerned and performed of this section. disease incurred or aggravated after on a voluntary basis in connection with (4) Exception. Inactive duty training September 30, 1982. prescribed training maintenance does not include work or study (ii) Paragraph (c)(1) of this section is activities of the unit to which the performed in connection with effective October 1, 1983, for death or Reservist is assigned is also inactive correspondence courses, or attendance disability resulting from injury or duty training. at an educational institution in an disease incurred or aggravated before (b) National Guard—(1) Active duty. inactive status. October 1, 1982. Full-time duty in the Armed Forces (c) Certain travel periods. For issues (iii) For duty after September 30, performed by a member of the National involving travel of a reservist or member 1988, the duty must be a prerequisite to Guard serving under title 10, United of the National Guard, see § 5.29. the member being commissioned and States Code, other than active duty for (Authority: 38 U.S.C. 101(21)–(23), 106, must be for at least 4 continuous weeks. training, is active duty. 501(a)) (2) Inactive duty training. Training by (2) Active duty for training. Full-time a member of, or an applicant for Cross Reference: § 5.1, for the membership (a student enrolled, during duty performed by a member of the definition of ‘‘reserve’’. National Guard of any State under any a semester or other enrollment term, in of the following six circumstances is § 5.24 How VA classifies duty performed a course that is part of Reserve Officers’ active duty for training: by Armed Services Academy cadets and Training Corps instruction at an (i) When detailed as a rifle instructor midshipmen, attendees at the preparatory educational institution) in, the Senior for civilians (see 32 U.S.C. 316); schools of the Armed Services Academies, Reserve Officers’ Training Corps (ii) During required drills and field and Senior Reserve Officers’ Training prescribed under 10 U.S.C. Chapter 103, exercises (see 32 U.S.C. 502); Corps members. ‘‘Senior Reserve Officers’ Training (iii) While participating in field (a) Service as a cadet or midshipman. Corps’’, is inactive duty training. exercises as directed by the Secretary of Service as a cadet at the U.S. Air Force (3) Drills. Time spent by a member of the Army or the Secretary of the Air Academy, U.S. Military Academy, or the Senior Reserve Officers’ Training Force (see 32 U.S.C. 503); U.S. Coast Guard Academy, or as a Corps in drills as part of his or her (iv) While attending schools or small midshipman at the U.S. Naval Academy activities as a member of the corps is not arms competitions as prescribed by the qualifies as active duty. The period of active military service.

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(d) Travel. For issues involving travel Administration, is active duty if injury or contracts a disease in the line under this section, see § 5.29. performed: of duty while going to, coming from, or (Authority: 38 U.S.C. 101, 106, 501(a)) (i) After July 28, 1945; at a place designated for final (ii) Before July 29, 1945, while on acceptance or entry upon active duty. Cross Reference: § 5.1, for the transfer to one of the Armed Forces; This applies to a draftee or selectee definition of ‘‘reserve’’. (iii) Before July 29, 1945, in time of when reporting for preinduction § 5.25 How VA classifies service in the war or National emergency declared by examination or for final induction into Public Health Service, in the Coast and the President, while assigned to duty on active duty. This section does not apply Geodetic Survey and its successor a project for one of the Armed Forces in to an injury or disease suffered during agencies, and of temporary members of the an area that the Secretary of Defense has a period of inactive duty status or Coast Guard Reserve. determined to be of immediate military period of waiting after a final physical (a) Public Health Service—(1) Active hazard; examination and prior to beginning the duty. (i) Full-time duty, other than for (iv) In the Philippine Islands on trip to report for induction. The injury training purposes, as a commissioned December 7, 1941, and continuously in or disease must be due to some factor officer of the Regular or Reserve Corps such islands thereafter until July 29, relating to compliance with proper of the Public Health Service is active 1945; or orders. duty if performed: (v) At any time, for purposes of DIC. (Authority: 38 U.S.C. 106(b)) (A) After July 28, 1945; (2) Such active duty continues until (B) Before July 29, 1945, under midnight of the date of discharge or § 5.27 Individuals and Groups that Qualify circumstances affording entitlement to release from active duty. as Having Performed Active Military Service full military benefits; or (c) Temporary member of the Coast for purposes of VA Benefits Based on (C) At any time, for purposes of Guard Reserve. Duty performed as a Designation by the Secretary of Defense. dependency and indemnity temporary member of the Coast Guard (a) Designation by the Secretary of compensation (DIC). Reserve is not active duty for training or Defense. Service performed by certain (ii) Such active duty continues until inactive duty training. persons and groups for the Armed midnight of the date of discharge or (d) Travel. For issues involving travel Forces of the U.S. in a capacity release from active duty. by a member of the Public Health considered civilian employment or (2) Active duty for training. Full-time Service, a member of the Coast and contractual service when the service duty for training purposes performed as Geodetic Survey and its successor was performed is active military service a commissioned officer of the Reserve agencies, or a reservist under this for purpose of VA benefits, if the Corps of the Public Health Service is section, see § 5.29. Secretary of Defense, or his or her active duty for training if performed: (Authority: 38 U.S.C. 101, 106, 501(a)) designee, certifies it as active military (i) After July 28, 1945; service and issues a discharge under Cross Reference: § 5.1, for the (ii) Before July 29, 1945, under honorable conditions. definitions of ‘‘reserve’’ and ‘‘reservist’’. circumstances affording entitlement to (b) Individuals and groups included. full military benefits, as determined by § 5.26 Circumstances where a person The Secretary of Defense, or his or her the Secretary of the Department of ordered to service, but who did not serve, designee, has certified as active military Defense; or is considered to have performed active service the service of the following (iii) At any time, for purposes of DIC. duty. individuals and groups: (3) Inactive duty training. Either of the (a) Persons included. The persons (1) American Merchant Marine in following kinds of service is inactive described in paragraph (a) of this Oceangoing Service any time during the duty training: section who meet the requirements of period December 7, 1941, to August 15, (i) Duty, other than full-time duty, paragraphs (a) and (b) of this section 1945. Recognized effective January 19, prescribed for a commissioned officer of will be considered to have performed 1988. the Reserve Corps of the Public Health active duty for purpose of entitlement to (2) The approximately 50 Chamorro Service by the Secretary of Health and benefits. and Carolinian former native policemen Human Services under 37 U.S.C. 206, (1) Volunteers. Volunteers are who received military training in the ‘‘Reserves; members of National Guard: included, provided they have applied Donnal area of central Saipan and were inactive-duty training’’, or any other for enlistment or enrollment in the placed under the command of Lt. Casino provision of law; or active military service and have been of the 6th Provisional Military Police (ii) Special additional duties provisionally accepted and directed or Battalion to accompany U.S. Marines on authorized for a commissioned officer of ordered to report to a place for final active, combat-patrol activity any time the Reserve Corps of the Public Health acceptance into the service. during the period August 19, 1945 to Service by an authority designated by (2) Draftees. Persons selected or September 2, 1945. Recognized effective the Secretary of Health and Human drafted for enrollment in the active September 30, 1999. Services and performed by him or her military service are included if they (3) Civilian Crewmen of the U.S. on a voluntary basis in connection with report, before being rejected for service, Coast and Geodetic Survey (U.S.C.GS) the prescribed training or maintenance according to a call from their local draft vessels, who performed their service in activities of the units to which he or she board. areas of immediate military hazard is assigned. (3) National Guard. Members of the while conducting cooperative (b) Coast and Geodetic Survey and National Guard are included when they operations with and for the U.S. Armed successor agencies—(1) Active duty. have been called into Federal active Forces any time during the period Full-time duty as a commissioned service, but have not yet been enrolled December 7, 1941, to August 15, 1945. officer in the Coast and Geodetic Survey in such service, and when reporting to Qualifying U.S.C.GS vessels specified and its successor agencies, the a designated rendezvous. by the Secretary of Defense, or his or her Environmental Science Services (b) Injury or disease. This section designee, are the Derickson, Explorer, Administration and the National applies only if a person described in Gilbert, Hilgard, E. Lester Jones, Oceanic and Atmospheric paragraph (a) of this section suffers an Lydonia, Patton, Surveyor, Wainwright,

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Westdahl, Oceanographer, Command any time during the period United Air Lines (UAL), who served Hydrographer, and Pathfinder. December 14, 1941, to August 14, 1945. overseas as a result of UAL’s contract Recognized effective April 8, 1991. Recognized effective October 5, 1990. with the Air Transport Command any (4) Civilian employees of Pacific (19) U.S. civilian female employees of time during the period December 14, Naval Air Bases who actively the U.S. Army Nurse Corps while 1941, to August 14, 1945. Recognized participated in Defense of Wake Island serving in the defense of Bataan and effective May 13, 1992. during World War II. Recognized Corregidor any time during the period (27) U.S. civilian volunteers, who effective January 22, 1981. January 2, 1942, to February 3, 1945. actively participated in the Defense of (5) Civilian Navy Identification Friend Recognized effective December 13, Bataan. Recognized effective February 7, or Foe (IFF) Technicians, who served in 1993. 1984. the Combat Areas of the Pacific any time (20) U.S. Civilian Flight Crew and (28) U.S. civilians of the American during the period December 7, 1941, to Aviation Ground Support Employees of Field Service (AFS), who served August 15, 1945. Recognized effective Braniff Airways, who served overseas in overseas operationally in World War I August 2, 1988. the North Atlantic or under the any time during the period August 31, (6) Civilian personnel assigned to the jurisdiction of the North Atlantic Wing, 1917, to January 1, 1918. Recognized Secret Intelligence Element of the Office Air Transport Command (ATC), as a effective August 30, 1990. of Strategic Services (OSS). Recognized result of a contract with the ATC any (29) U.S. civilians of the American effective December 27, 1982. time during the period February 26, Field Service (AFS), who served (7) Engineer Field Clerks (WWI). 1942, to August 14, 1945. Recognized overseas under U.S. Armies and U.S. Recognized effective August 31, 1979. effective June 2, 1997. Army Groups in World War II any time (8) Guam Combat Patrol. Recognized (21) U.S. Civilian Flight Crew and during the period December 7, 1941, to effective May 10, 1983. Aviation Ground Support Employees of May 8, 1945. Recognized effective (9) Honorably discharged members of Consolidated Vultree Aircraft August 30, 1990. the American Volunteer Group (Flying Corporation (Consairway Division), who (30) U.S. Merchant Seamen who Tigers), who served any time during the served overseas as a result of a contract served on blockships in support of period December 7, 1941, to July 18, with the Air Transport Command any Operation Mulberry. Recognized 1942. Recognized effective May 3, 1991. time during the period December 14, effective October 18, 1985. (10) Honorably discharged members 1941, to August 14, 1945. Recognized (31) Wake Island Defenders from of the American Volunteer Guard, effective June 29, 1992. Guam. Recognized effective April 7, Eritrea Service Command, who served (22) U.S. Civilian Flight Crew and 1982. any time during the period June 21, Aviation Ground Support Employees of (32) Women’s Air Forces Service 1942, to March 31, 1943. Recognized Northeast Airlines Atlantic Division, Pilots (WASP). Recognized effective effective June 29, 1992. who served overseas as a result of November 23, 1977. (11) Male Civilian Ferry Pilots. Northeast Airlines’ Contract with the (33) Women’s Army Auxiliary Corps Recognized effective July 17, 1981. Air Transport Command any time (WAAC). Recognized effective March (12) The Operational Analysis Group during the period December 7, 1941, to 18, 1980. of the Office of Scientific Research and August 14, 1945. Recognized effective (c) Effective dates of awards—(1) Development, Office of Emergency June 2, 1997. Scope. This paragraph (c) establishes Management, which served overseas (23) U.S. Civilian Flight Crew and the effective date of an award of any of with the U.S. Army Air Corps any time Aviation Ground Support Employees of the following benefits based on service during the period December 7, 1941, to Northwest Airlines, who served in a group listed in this section: August 15, 1945. Recognized effective overseas as a result of Northwest (i) Pension; August 27,1999. Airline’s contract with the Air Transport (ii) Disability compensation; (13) Quartermaster Corps Female Command any time during the period (iii) Dependency and indemnity Clerical Employees serving with the December 14, 1941, to August 14, 1945. compensation; and AEF (American Expeditionary Forces) Recognized effective December 13, (iv) Monetary allowances for a child in World War I. Recognized effective 1993. of: January 22, 1981. (24) U.S. Civilian Flight Crew and (A) A Vietnam veteran under § 5.589; (14) Quartermaster Corps Keswick Aviation Ground Support Employees of (B) A Vietnam veteran under § 5.590; Crew on Corregidor (WWII). Recognized Pan American World Airways and Its or effective February 7, 1984. Subsidiaries and Affiliates, who served (C) A veteran of covered service in (15) Reconstruction Aides and overseas as a result of Pan American’s Korea under 38 U.S.C. 1821, ‘‘Benefits Dietitians in World War I. Recognized Contract with the Air Transport for a child of certain Korea service effective July 6, 1981. Command and Naval Air Transport veterans born with spina bifida’’. (16) Signal Corps Female Telephone Service any time during the period (2) Claim received 1 year or less after Operators Unit of World War I. December 14, 1941, to August 14, 1945. the effective date of recognition. If VA Recognized effective May 15, 1979. Recognized effective July 16, 1992. receives the claim no later than 1 year (17) Three scouts/guides, Miguel (25) U.S. Civilian Flight Crew and after the effective date of recognition, Tenorio, Penedicto Taisacan, and Aviation Ground Support Employees of then the effective date of the award is Cristino Dela Cruz, who assisted the Transcontinental and Western Air the later of: U.S. Marines in the offensive operations (TWA), Inc., who served overseas as a (i) The date entitlement arose, as against the Japanese on the Northern result of TWA’s contract with the Air defined in § 5.150; or Mariana Islands from June 19, 1944, Transport Command any time during (ii) The effective date of recognition. through September 2, 1945. Recognized the period December 14, 1941, to (3) Claim received more than 1 year effective September 30, 1999. August 14, 1945. The ‘‘Flight Crew’’ after the effective date of recognition. If (18) U.S. civilian employees of includes pursers. Recognized effective VA receives the claim more than 1 year American Airlines, who served overseas May 13, 1992. after the effective date of recognition, as a result of American Airlines’ (26) U.S. Civilian Flight Crew and the effective date of the award or contract with the Air Transport Aviation Ground Support Employees of increase is the later of:

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(i) The date entitlement arose, as (e) Coast Guard. Active service in the for members of Student Army Training defined in § 5.150; or Coast Guard after January 27, 1915, Corps Camps at the Presidio of San (ii) One (1) year prior to the date of while under the jurisdiction of the Francisco; Plattsburg, New York; Fort receipt of the claim. Treasury Department, the Navy Sheridan, Illinois; Howard University, (4) Effective dates of awards based on Department, the Department of Washington, DC; Camp Perry, Ohio; and a review on VA’s initiative 1 year or less Transportation, or the Department of Camp Hancock, Georgia, from July 18, after the effective date of recognition. If Homeland Security is included. This 1918 to September 16, 1918. VA awards benefits no later than 1 year does not include temporary members of (o) Women’s Army Corps (WAC). after the effective date of recognition, the Coast Guard Reserves. Service in the WAC after June 30, 1943, the effective date of the award is the (f) Contract surgeons. Contract is included. later of: surgeons are included for disability (p) Women’s Reserve of Navy, Marine (i) The date entitlement arose, as compensation and dependency and Corps, and Coast Guard. Service in the defined in § 5.150; or indemnity compensation, if the Women’s Reserve of the Navy, Marine (ii) The effective date of recognition. disability or death was the result of Corps, and Coast Guard is included and (5) Effective dates of awards based on injury or disease contracted in the line provides the same benefits as members a review on VA’s initiative more than 1 of duty during a period of war while of the Officers Reserve Corps or enlisted year after the effective date of the actually performing the duties of men of the U.S. Navy, Marine Corps, or change. If VA awards benefits more than assistant surgeon or acting assistant Coast Guard. 1 year after the effective date of surgeon with any military force in the (Authority: 38 U.S.C. 101, 106, 107, 501(a), recognition, the effective date of the field, or in transit, or in a hospital. 1152, 1504) award is the later of: (g) Field clerks, Quartermaster Corps. (i) The date entitlement arose, as Field clerks of the Quartermaster Corps Cross Reference: § 5.1, for the defined in § 5.150; or are included as enlisted personnel. definition of ‘‘reserve’’. (ii) One (1) year before the date of the (h) Lighthouse service personnel. § 5.29 Circumstances under which certain VA rating decision awarding the benefit, Lighthouse service personnel who were travel periods may be classified as military or if no rating decision is required, 1 transferred to the service and service. year before the date VA otherwise jurisdiction of the War or Navy (a) Active duty—(1) Travel time to determines that the claimant is entitled Departments by Executive order under and from active duty. Travel to or from to the benefit. the Act of August 29, 1916, are any period of active duty is active duty (Authority: 38 U.S.C. 501(a), 1832(b)(2), included. Effective July 1, 1939, service if the travel is authorized by the 5110(g); Sec. 401, Pub. L. 95–202, 91 Stat. was consolidated with the Coast Guard. Secretary concerned. (i) Male nurses. Male nurses who were 1449–50) (2) Travel on discharge or release. enlisted in a Medical Corps are Travel time consisting of the period § 5.28 Other groups designated as having included. performed active military service. (j) Persons previously having a between the date of discharge or release The following groups are considered pensionable or compensable status. and arrival at the person’s residence by to have performed active military Persons having a pensionable or the most direct route is active duty. service: compensable status before January 1, (3) Persons ordered to service but who (a) Alaska Territorial Guard during 1959, are included. did not serve. For information about the World War II. (1) Service in the Alaska (k) Insular Forces—(1) Philippine travel of certain persons ordered to Territorial Guard during World War II, forces. Service in certain Philippine service who did not serve, see § 5.26(b). for any person who the Secretary of forces constitutes active military service (b) Active duty for training or inactive Defense determines was honorably for purposes of certain benefits as duty training—(1) Travel time for active discharged, is included. specified in § 5.610. duty for training or inactive duty (2) Benefits cannot be paid for this (2) Other insular forces. Service in the training. Any person proceeding service for any period prior to August 9, Insular Force of the Navy, Samoan directly to, or returning directly from, a 2000. Native Guard, or Samoan Native Band of period of active duty for training or (b) Army field clerks. Army field the Navy constitutes active military inactive duty training will be clerks are included as enlisted service for purposes of entitlement to considered to be on active duty for personnel. pension, disability compensation, training or inactive duty training if the (c) Army Nurse Corps, Navy Nurse dependency and indemnity person was: Corps, and female dietetic and physical compensation, and burial benefits at the (i) Authorized or required by therapy personnel. Army Nurse Corps, full-dollar rate. competent authority designated by the Navy Nurse Corps, and female dietetic (l) Revenue Cutter Service. The Secretary concerned to perform such and physical therapy personnel are Revenue Cutter Service is included duty; and included, as follows: while serving under direction of the (ii) Disabled or died from an injury, (1) Nurse Corps. Female Army and Secretary of the Navy in cooperation an acute myocardial infarction, a Navy nurses on active service under with the Navy. Effective January 28, cardiac arrest, or a cerebrovascular order of the service department; or 1915, the Revenue Cutter Service was accident incurred during that travel. (2) Female dietetic and physical merged into the Coast Guard. (2) Determination of status. VA will therapy personnel. Female dietetic and (m) Russian Railway Service Corps. determine whether such a person was physical therapy personnel, excluding Service during World War I in the authorized or required to perform such students and apprentices, appointed Russian Railway Service Corps as duty and whether the person was with relative rank after December 21, certified by the Secretary of the Army is disabled or died from an injury, an 1942, or commissioned after June 21, included. acute myocardial infarction, a cardiac 1944. (n) Training camps. Members of arrest, or a cerebrovascular accident (d) Aviation camps. Students who training camps authorized by section 54 incurred during that travel. In making were enlisted men in Aviation camps of the National Defense Act (Pub. L. 64– these determinations, VA will take into during World War I are included. 85, 39 Stat. 166), are included, except consideration:

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(i) The hour at which the person either honorable or under honorable persistent misconduct if service was began to proceed to or return from the conditions is binding on VA. Subject to otherwise honest, faithful, and duty; § 5.36 any of the following is a discharge meritorious. If the misconduct includes (ii) The hour at which the person was or release under other than dishonorable absences without leave, see also § 5.32. scheduled to arrive for, or at which the conditions for VA purposes: (5) Sexual acts involving aggravating person ceased to perform, such duty; (1) An honorable discharge; circumstances or other factors affecting (iii) The method of travel employed; (2) A general discharge under the performance of duty. Examples of (iv) The itinerary; honorable conditions; or sexual acts involving aggravating (v) The manner in which the travel (3) An uncharacterized administrative circumstances or other factors affecting was performed; and entry level separation in the case of the performance of duty include child (vi) The immediate cause of disability separation of enlisted personnel based molestation, prostitution, sexual acts or or death. on administrative proceedings begun conduct accompanied by assault or (3) Burden of proof. Whenever any after September 30, 1982. coercion, and sexual acts or conduct claim is filed alleging that the claimant (d) Discharges VA recognizes as being taking place between servicemembers of is entitled to benefits because of travel under dishonorable conditions. For VA disparate rank, grade, or status when the for active duty for training or inactive purposes, a dishonorable discharge is a servicemember has taken advantage of duty training, the burden of proof will discharge under dishonorable his or her superior rank, grade, or status. be on the claimant. conditions, except as provided in § 5.33. (Authority: 38 U.S.C. 101(2), 501(a), 1301) (Authority: 38 U.S.C. 101(21) and (22), 106(c) (e) Discharges and releases for which and (d)) VA will make the character of discharge Cross Reference: § 5.1, for the determination. Subject to § 5.36, VA definition of ‘‘willful misconduct’’. § 5.30 How VA determines if service will determine whether the following qualifies for benefits. types of discharges are discharges under Bars to Benefits (a) Purpose. Except for a other than dishonorable conditions for § 5.31 Statutory bars to benefits. servicemember who died in service, a VA purposes, based on the facts and requirement for veteran status is (a) Purpose. By Federal statute, circumstances surrounding separation: commission of certain acts leading to discharge or release under other than (1) An other than honorable discharge dishonorable conditions. See § 5.1 discharge or dismissal from the Armed (formerly an ‘‘undesirable’’ discharge); Forces bars the grant of benefits (defining ‘‘veteran’’). This section sets (2) A bad conduct discharge; or (statutory bars). This section describes out how VA determines whether the (3) In the case of separation of those acts and exceptions to the servicemember’s discharge or release enlisted personnel based on statutory bars. was under other than dishonorable administrative proceedings begun after conditions. September 30, 1982, uncharacterized (b) Limitation to period of service (b) Limitation to period of service administrative separations for: concerned—(1) General rule. A concerned—(1) General rule. A (i) A void enlistment or induction; or determination under this section that determination under this section that a (ii) Dropped from the rolls (that is, veterans benefits are statutorily barred servicemember was discharged or administrative discontinuance of applies only to the period of service to released under dishonorable conditions military status and pay). which the relevant discharge or applies only to the period of service to (f) Offenses or events leading to dismissal applies. It does not preclude which the discharge or release applies. discharge or release being recognized as the grant of benefits based upon other It does not preclude veteran status with a discharge under dishonorable periods of service. See also § 5.37 respect to other periods of service from conditions. For purposes of VA’s (concerning certain cases in which a which the servicemember was character of discharge determination servicemember was not discharged or discharged or released under other than under paragraph (e) of this section, a released at the end of a period of his or dishonorable conditions. See also § 5.37 discharge or release because of one or her service obligation because of a (concerning certain cases where a more of the offenses or events specified change in his or her military status servicemember was not discharged or in this paragraph (f) is a discharge or during that period of service). released at the end of the period of time release under dishonorable conditions (2) Forfeiture not precluded. The for which he or she was obligated to for VA purposes: provisions of paragraph (b)(1) of this serve when entering a period of service (1) Acceptance of an other than section do not preclude forfeiture of because of a change in his or her honorable discharge (formerly an benefits under 38 U.S.C. 6103, military status during that period of ‘‘undesirable’’ discharge) to avoid trial ‘‘Forfeiture for fraud’’; under 38 U.S.C. service). by general court-martial. 6104, ‘‘Forfeiture for treason’’; under 38 (2) Forfeiture not precluded. The (2) Mutiny or spying. U.S.C. 6105, ‘‘Forfeiture for subversive provisions of paragraph (b)(1) of this (3) Commission of one or more activities’’; or under similar statutes section do not preclude forfeiture of offenses involving moral turpitude. For governing forfeiture of benefits. benefits under 38 U.S.C. 6103, purposes of this section, an offense (c) Acts barring benefits. Benefits are ‘‘Forfeiture for fraud’’; under 38 U.S.C. involves ‘‘moral turpitude’’ if it is not payable based upon a period of 6104, ‘‘Forfeiture for treason’’; under 38 unlawful, it is willful, it is committed service from which the servicemember U.S.C. 6105, ‘‘Forfeiture for subversive without justification or legal excuse, was discharged or dismissed from the activities’’; or under similar statutes and it is an offense which a reasonable Armed Forces under one or more of the governing forfeiture of benefits. person would expect to cause harm or following conditions: (c) Discharges and releases VA loss to person or property. This (1) Court-martial. By reason of the recognizes as being under other than includes, generally, conviction of a sentence of a general court-martial. dishonorable conditions. For purposes felony. Substitution of an administrative form of making determinations concerning (4) Engaging in willful and persistent of discharge for a discharge or dismissal character of discharge for VA purposes, misconduct during military service. A executed in accordance with the a military discharge that is characterized discharge because of a minor offense sentence of a court-martial under 10 by the service department as being will not be considered willful and U.S.C. 874(b) (granting the authority for

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such substitutions) does not remove this the first day of the month after the § 5.33 Insanity as a defense to acts leading bar to benefits. month for which VA last paid benefits. to a discharge or dismissal from the service (2) Conscientious objector. As a that might be disqualifying for benefits. (Authority: 38 U.S.C. 501(a), 5303; Pub. L. conscientious objector who refused to If VA determines that a 95–126, 91 Stat. 1106, as amended by Pub. perform military duty, wear the servicemember was insane at the time of L. 102–40, 105 Stat. 239) uniform, or comply with lawful orders the commission of an act, or acts, of competent military authorities. Cross Reference: § 5.1, for the leading to separation from the service, (3) Deserter. As a deserter. definition of ‘‘alien’’ and § 5.1, for the the commission of such act(s) will not (4) Absence without leave (AWOL). By definition of ‘‘insanity’’. be a basis for denying status as a veteran reason of AWOL for a continuous period under § 5.30, or for barring the payment of at least 180 days. This bar is subject § 5.32 Consideration of compelling of benefits under § 5.31. circumstances when veteran was separated to § 5.32 and to paragraph (f) of this (Authority: 38 U.S.C. 501(a), 5303(b)) section (concerning limitations on the for AWOL. creation of overpayments). It applies to Cross Reference: § 5.1, for the (a) Compelling circumstances definition of ‘‘insanity’’. any person so discharged who was considered. Separation for absence awarded a discharge under other than without leave (AWOL) will not preclude Military Discharges and Related honorable conditions and who: veteran status under § 5.30, and will not Matters (i) Was awarded an honorable or bar benefit entitlement under general discharge under one of the § 5.34 Effect of discharge upgrades by § 5.31(c)(4) (concerning AWOL as a programs listed in § 5.36(a) (concerning Armed Forces boards for the correction of statutory bar to benefits) if VA certain special 1970s-era discharge military records (10 U.S.C. 1552) on determines that there were compelling eligibility for VA benefits. upgrades) prior to October 8, 1977; or (ii) Had not otherwise established circumstances to warrant unauthorized (a) Purpose. This section describes the basic eligibility to receive VA benefits absence(s). effect of a discharge upgrade by a board prior to October 8, 1977. For purposes (b) Factors considered. VA will established under 10 U.S.C. 1552, of this paragraph (c)(4)(ii), the term evaluate all of the relevant evidence of ‘‘Correction of military records: claims established basic eligibility to receive record to determine whether there were incident thereto’’ on a VA determination VA benefits means either a VA compelling circumstances to warrant that a servicemember’s discharge or determination that the service unauthorized absence(s), including, but dismissal was under dishonorable department issued an other than not limited to, the following factors: conditions or that the servicemember is statutorily barred from receiving VA honorable discharge under conditions (1) Length of absence without leave benefits. other than dishonorable, or an upgraded and character of service. VA will honorable or general discharge issued (b) Definitions. For purposes of this consider the length of the period(s) of section, any applicable new prior to October 8, 1977, under criteria AWOL in comparison to the length and other than those prescribed by one of determination means a determination character of service exclusive of the under § 5.30 or § 5.31. Applicable the programs listed in § 5.36. However, period(s) of AWOL. Service exclusive of if the service department discharged or previous VA discharge findings means the period(s) of AWOL should have findings by VA, based upon a previous released a person by reason of the been of such quality and length that it sentence of a general court-martial, only discharge issued for the same period of can be characterized as honest, faithful, service, that a servicemember’s a finding of insanity (see § 5.33), or a meritorious, and of benefit to the nation. decision of a board of correction of discharge or dismissal was under records established under 10 U.S.C. (2) Examples of circumstances VA dishonorable conditions or that the 1552 (see § 5.34) can establish basic will consider. Reasons offered for being servicemember is statutorily barred from eligibility to receive VA benefits. AWOL that VA will consider include receiving benefits. (5) Resignation. By reason of family emergencies, compelling family (c) Effect of discharge upgrades. An resignation by an officer for the good of obligations, or similar types of honorable discharge, or discharge under the service. compelling obligations or duties owed honorable conditions, issued through a (6) Discharge due to alienage. At the to third parties. In evaluating the board for correction of military records request of a servicemember, by reason of reasons for being AWOL, VA will is final and conclusive and is binding discharge due to alienage during a consider how the situation appeared to on VA as to characterization based on period of hostilities. However, VA will the servicemember in light of the the period covered by such service. not bar benefits in the absence of servicemember’s age, cultural Such a discharge supersedes a previous affirmative evidence establishing such a background, educational level, and discharge issued for the same period of request. judgmental maturity. VA will also service. It will be the basis for making (d) Bars inapplicable to certain consider evidence showing that any applicable new determination and insurance. This section does not apply hardship or suffering during overseas sets aside any applicable previous VA to war-risk insurance, Government service, combat wounds or other discharge findings. (converted) insurance, or National service-incurred or aggravated (d) Effective date. If entitlement to Service Life Insurance policies. disability, adversely affected the benefits is established because of the (e) Discontinuance of awards. Subject servicemember’s state of mind at the change, modification, or correction of a to the provisions of § 5.177, any award time AWOL began. discharge or dismissal by a board for the contrary to the provisions of paragraph correction of military records, the award (3) Valid legal defense. VA may find (c) of this section will be discontinued. of such benefits will be effective from (f) Limitation on creation of that compelling circumstances existed if the latest of these dates: overpayments when veteran was the absence could not have been validly (1) The date of filing with the service separated for AWOL. Awards made after charged as, or lead to a conviction of, an department of the request for change, October 8, 1977, in cases in which the offense under the Uniform Code of modification, or correction of the bar in paragraph (c)(4) of this section Military Justice. discharge or dismissal in the case of applies, will be discontinued effective (Authority: 38 U.S.C. 501(a), 5303(a)) either an original claim filed with VA or

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a previously denied claim filed with set aside any VA findings, based upon administratively discharged or released VA; a previous discharge issued for the same from active military service under other (2) The date VA received a previously period of service, that a than honorable conditions. denied claim; or servicemember’s discharge or dismissal (b) Discontinuance of awards. Subject (3) One (1) year prior to the date of was under dishonorable conditions. to the provisions of § 5.177, any award reopening of the previously denied VA (2) Exceptions. The rule in paragraph of benefits made contrary to paragraph claim. (d)(1) of this section does not apply if (a) of this section will be discontinued. (Authority: 10 U.S.C. 1552(a)(4); 38 U.S.C. all of the following conditions are met: (c) No overpayments to be created. No 501(a), 5110(i)) (i) The discharge was upgraded as a overpayments will be created as a result result of an individual case review; of payments made after October 8, 1977, § 5.35 Effect of discharge upgrades by (ii) The discharge was upgraded based on an upgraded honorable or Armed Forces discharge review boards (10 under uniform published standards and general discharge issued under one of U.S.C. 1553) on eligibility for VA benefits. procedures that generally apply to all the programs listed in paragraph (a) of (a) Purpose. This section describes the persons administratively discharged or this section which would not be effect of a discharge upgrade by a board released from active military service awarded under the standards set forth in established under 10 U.S.C. 1553, under conditions other than honorable; § 5.35(d)(2). Such payments will be ‘‘Review of discharge or dismissal’’ on and discontinued effective the first day of a VA determination that a (iii) Such published standards are the month after the month for which VA servicemember’s discharge or dismissal consistent with standards for last paid benefits. was under dishonorable conditions or determining honorable service that the servicemember is statutorily (Authority: 38 U.S.C. 5303(e); Pub. L. 95–126, historically used by the service 91 Stat. 1106) barred from receiving VA benefits. department concerned and do not (b) Upgrades issued before October 8, contain any provision for automatically § 5.37 Effect of extension of service 1977. This paragraph (b) concerns the granting or denying an upgraded obligation due to change in military status effect of an honorable or general discharge. VA will accept a report of the on eligibility for VA benefits. discharge (upgraded discharge) issued service department concerned that the (a) Purpose. Except for persons who by a discharge review board before discharge review board proceeding met die in military service, status as a October 8, 1977. these conditions. veteran requires that a servicemember (1) General rule. The upgraded (e) Effective date. If entitlement to be discharged or released from active discharge will be the basis for making benefits is established because of the military service under conditions other any new determination under § 5.30 or change, modification, or correction of a than dishonorable. See § 5.1, defining § 5.31. The upgraded discharge will also discharge or dismissal by a discharge ‘‘veteran’’. This section describes how set aside any VA finding that a review board, the award of such benefits VA will determine whether a servicemember’s discharge or dismissal will be effective from the latest of these servicemember has met this requirement was under dishonorable conditions, or dates: when, because of a change in his or her that he or she is statutorily barred from (1) The date of filing with the service military status, he or she was not receiving benefits, if the upgraded department of the request for change, discharged or released at the end of the discharge concerned the same period of modification, or correction of the period of time for which he or she was service. discharge or dismissal in the case of initially obligated to serve. (2) Exception. The rule in paragraph either an original claim filed with VA or (b) Definitions—(1) Change in military (b)(1) of this section does not apply if: a previously denied claim filed with status. For purposes of this section, a (i) The previous discharge was VA; change in military status means a executed by reason of the sentence of a (2) The date VA received a previously change in status that extends the period general court-martial, or denied claim; or that a servicemember is obligated to (ii) The discharge review board was (3) One (1) year before the date of serve. Examples of such a change in acting under the authority of one of the reopening of the previously denied VA military status include, but are not programs specified in § 5.36. claim. limited to: (c) Upgrades issued after October 7, (Authority: 38 U.S.C. 501(a), 5110(i), 5303(e)) (i) A discharge for acceptance of an 1977—effect on statutory bars. VA will appointment as a commissioned officer make any new determinations under § 5.36 Effect of certain special discharge or warrant officer; § 5.31 without regard to an honorable or upgrade programs on eligibility for VA (ii) Change from a Reserve general discharge (upgraded discharge) benefits. commission to a Regular commission; that a discharge review board issued (a) Programs involved. Except as (iii) Change from a Regular after October 7, 1977. The upgraded provided in § 5.35(d)(2), an honorable or commission to a Reserve commission; discharge will not set aside any VA general discharge awarded by a (iv) Reenlistment; or findings, based upon a previous discharge review board under one of the (v) Voluntary or involuntary discharge issued for the same period of following programs does not remove extensions of a period of obligated service, that a servicemember is any bar to benefits imposed under § 5.30 service. statutorily barred from receiving VA or § 5.31: (2) Combined periods of service. For benefits. (1) The President’s directive of purposes of this section, combined (d) Upgrades issued after October 7, January 19, 1977, implementing periods of service means the period of 1977—effect on character of discharge Presidential Proclamation 4313 of service immediately prior to the change determinations—(1) General rule. Any September 16, 1974; in military status combined with the new determinations VA makes under (2) The Department of Defense’s period of service immediately following § 5.30 will be made without regard to an special discharge review program the change in military status. honorable or general discharge effective April 5, 1977; or (c) Combined periods of service (upgraded discharge) issued by a (3) Any discharge review program ending under conditions other than discharge review board after October 7, implemented after April 5, 1977, that dishonorable. If the combined periods of 1977. The upgraded discharge will not does not apply to all persons service ended with discharge or release

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under conditions other than (Authority: 10 U.S.C. 501(a), 505; 38 U.S.C. (ii) That, at the time of discharge, was dishonorable, then VA will consider the 101(2), 501(a)) documented in official service records entire period of service as other than Minimum Service and Evidence of and, in VA’s medical judgment, would dishonorable. Service have justified a discharge. (d) Combined periods of service (4) Any person who has any disability ending under dishonorable conditions. § 5.39 Minimum active duty service that is currently compensable under 38 When a servicemember’s combined requirement for VA benefits. U.S.C. chapter 11 because: period of service ended under (a) Requirement. Any person listed in (i) VA evaluates the disability as 10 dishonorable conditions and he or she paragraph (b) of this section will not be percent or more disabling according to was not discharged or released at the eligible for VA benefits based on a the Schedule for Rating Disabilities in end of the period that he or she was particular period of active duty service part 4 of this chapter; initially obligated to serve, he or she is unless that period of service met the (ii) Special monthly compensation is eligible to receive VA benefits based on requirement for a minimum period of payable for the disability; or that period of service if that active duty described in paragraph (c) of (iii) The disability, together with one servicemember: this section, or the person qualifies for or more other disabilities, is (1) Completed active military service an exclusion under paragraph (d) of this compensable under § 5.282 for paired for the period he or she was initially section. organs and extremities, of this chapter. (5) The provision of a benefit for or in obligated to serve; and (b) Applicability. The minimum active connection with a service-connected (2) Due to an intervening change in duty service requirement applies to: (1) Any person who originally disability, condition, or death. military status was not discharged or (6) Insurance benefits under 38 U.S.C. released at the end of the initial period enlisted in a regular component of the Armed Forces and entered on active chapter 19. but would have been eligible for a (7) Any person who performed active duty after September 7, 1980 (time spent discharge or release under conditions military service under the provisions of during temporary assignment to a other than dishonorable at the end of § 5.21(a)(4) or (5), VA recognizes as reserve component awaiting entrance on the initial period if not for the active military service. intervening change in military status. active duty because of a delayed entry (e) Temporary breaks in service. enlistment contract does not count; this (Authority: 38 U.S.C. 101(18)) Temporary breaks in active duty service section applies if the actual date of entry for any of the reasons listed below will Cross Reference: § 5.1, for the on active duty is after September 7, not be considered to have interrupted definition of ‘‘reserve’’. 1980); and the ‘‘continuous service’’ requirement of (2) Any other person (enlisted or § 5.38 Effect of a voided enlistment on paragraph (c)(1)(i) of this section; eligibility for VA benefits. officer) who entered on active duty after however, time lost due to these breaks October 16, 1981, who had not must be subtracted from the total service (a) Purpose. This section describes previously completed a continuous whether a claimant is eligible for VA time because these times do not count period of active duty of at least 24 towards the minimum active duty benefits if the service department has months. voided the servicemember’s enlistment. service requirement: (c) Minimum active duty service (1) Time lost due to an industrial, (b) Service considered valid for requirement. (1) Except for persons establishing eligibility for benefits. A agricultural, or indefinite furlough; excluded in paragraph (d) of this (2) Time lost while absent without servicemember’s enlistment that is section, a person must have served the voided by the service department for leave and without pay; shorter of: (3) Time lost while under arrest reasons other than those stated in (i) Twenty-four (24) months of (without acquittal or a dismissal of paragraph (c) of this section is valid continuous active duty; or charges); from the date of entry upon active duty (ii) The full period of service for (4) Time lost while a deserter; or to the date of voidance by the service which the person was called or ordered (5) Subject to 10 U.S.C. 875(a) department. In the case of an enlistment to active duty. (concerning the restoration under voided for concealment of age or (2) If it appears that a person has not certain circumstances of ‘‘all rights, misrepresentation of age, service is valid met the length of service requirement, privileges, and property affected by an from the date of entry upon active duty VA will request service department executed part of a court-martial to the date of discharge. records to determine if any of the sentence which has been set aside or (c) Service considered not valid for exclusions described in paragraph (d) of disapproved’’), time lost while serving a establishing eligibility for benefits. A this section apply. court-martial sentence. servicemember’s enlistment that is (d) Exclusions. The minimum active (f) Effect on eligibility for benefits for voided by the service department for duty service requirement of this section survivors and dependents—(1) General any of the reasons specified in this does not apply to: rule. If a person is ineligible for VA paragraph (c) is void from the date of (1) Any person who was discharged benefits because he or she did not meet entry. A servicemember is not eligible under an early out program described in the minimum active duty service for VA benefits based on this period of 10 U.S.C. 1171. requirement, the person’s dependents service, if enlistment was voided for any (2) Any person who was discharged and survivors are ineligible for benefits of the following reasons: because of a hardship as described in 10 based on that service. (1) Lack of legal capacity to contract, U.S.C. 1173. (2) Exceptions. Paragraph (f)(1) of this other than on the basis of minority, such (3) Any person who was discharged or section does not bar entitlement to any as a lack of mental capacity to contract; released from active duty because of a of the following VA benefits to which a or disability incurred or aggravated in the dependent or survivor may otherwise be (2) A statutory prohibition to line of duty: entitled: enlistment, including, but not limited (i) That, at the time of discharge or (i) Insurance benefits under 38 U.S.C. to: release, was determined to be service chapter 19; (i) Desertion; or connected without presumptive (ii) Housing or small business loans (ii) Conviction of a felony. provisions of law; or under 38 U.S.C. chapter 37;

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(iii) Benefits described in paragraph (2) The evidence of record does not principal officer of the institution may (d)(5) of this section; or meet the requirements of paragraph (c) sign the form. For purposes of this (iv) Dependency and indemnity of this section; or section, the term mentally incompetent compensation based on the person’s (3) There is a material discrepancy in means that the individual lacks the death in service. the evidence of record. mental capacity to provide substantially (Authority: 38 U.S.C. 5303A) (Authority: 38 U.S.C. 501(a)) accurate information needed to complete a form or to certify that the Cross Reference: § 5.1, for the §§ 5.41–5.49 [Reserved] statements made on a form are true and definition of ‘‘reserve component’’. complete. Subpart C—Adjudicative Process, (b) Effect of claims for disability § 5.40 Service records as evidence of General service and character of discharge that compensation or pension. VA may qualify for VA benefits. VA Benefit Claims consider a claim for disability (a) Acceptable evidence of service. To compensation as a claim for pension, establish entitlement to pension, § 5.50 Applications VA furnishes. and VA may consider a claim for disability compensation, dependency (a) VA will furnish an application pension as a claim for disability and indemnity compensation, or burial upon request. Upon request, VA will compensation. VA will award the benefits, VA must have evidence of furnish the appropriate application to a greater benefit, unless the claimant qualifying service and character of person claiming, or expressing intent to specifically elects the lesser benefit. discharge from the service department claim, benefits under the laws (Authority: 38 U.S.C. 501(a), 5101(a)) administered by VA. concerned. Documents VA will accept Cross Reference: §§ 5.1, for the as evidence of service and character of (b) VA will furnish an application to a survivor upon the death of a veteran. definition of ‘‘claim’’; 5.54, ‘‘Informal discharge include, but are not limited claims’’. to, the following documents: Upon the receipt of information of the (1) A DD Form 214; or death of a veteran, VA will furnish the § 5.52 Filing a claim for death benefits. (2) A Certificate of Release or appropriate application to any survivor (a) Requirements for claims for death Discharge from Active Duty. with apparent entitlement to death benefits. A person must file a specific (b) Content of documents. The pension or dependency and indemnity claim for death benefits by completing document establishing service must compensation (DIC). If the available and filing the application prescribed by contain information which evidence does not indicate that any the Secretary (or jointly with the demonstrates: person has apparent entitlement to Commissioner of Social Security, as (1) The length of service; death pension or DIC, but an accrued prescribed by § 5.131(a)), or on any (2) The dates of service; and benefit is payable, VA will furnish the document indicating an intent to apply (3) The character of discharge or appropriate application to the preferred for survivor benefits, for VA to grant release. survivor. The letter accompanying the death benefits. See §§ 5.431 and 5.538. (c) When service department application will state that the claimant verification is not required. VA will has 1 year after the date of the veteran’s (Authority: 38 U.S.C. 501(a), 5101(a)) accept one or more documents issued by death to file a claim for accrued (b) Effects of claims for death benefits. a U.S. service department as evidence of benefits, in accordance with § 5.552. A surviving spouse’s or a child’s claim: service and character of discharge (c) Claims under 38 U.S.C. 1151. A (1) For DIC is also a claim for death without verifying their authenticity, claimant may apply in any written form pension; and provided that VA determines that the for disability or death benefits due to (2) For death pension is also a claim document is genuine and accurate. The hospital treatment, medical or surgical for DIC. document can be a copy of an original treatment, examination, or training document if the copy: under the provisions of 38 U.S.C. 1151. (Authority: 38 U.S.C. 501(a), 5101(b)(1)) (1) Was issued by a service VA does not have an application for (c) Claims for death benefits filed by department; such a claim. See § 5.53 for the or for a child—(1) Child turns 18 years (2) Is certified by a public custodian requirements for filing a claim pursuant old. If a child’s entitlement to DIC arises of records as a true and exact copy of to 38 U.S.C. 1151. because the child turns 18 years old, the a document in the custodian’s (Authority: 38 U.S.C. 501(a), 5101, 5102) child must file a claim for DIC unless possession; or the child is included on the surviving (3) Is certified by an accredited agent, § 5.51 Filing a claim for disability benefits. spouse’s DIC award. VA will consider a attorney, or service organization (a) Requirements for claims for child included on the surviving representative as a true and exact copy disability benefits. A person must file a spouse’s DIC award to have filed a DIC of either an original document or of a specific claim that is in the form claim on his or her 18th birthday. See copy issued by the service department prescribed by the Secretary for VA to § 5.696. or a public custodian of records. This grant a claim for disability benefits. If an (2) Discontinuance of a surviving accredited agent, attorney, or service individual has not attained the age of 18 spouse’s right to DIC or to death organization representative must have years, is mentally incompetent, or is pension. Except as otherwise provided successfully completed VA-prescribed physically unable to sign a form, a form in paragraph (c) of this section, if VA training on military records. filed for the individual may be signed discontinues an award of DIC or death (d) When service department by a court-appointed representative, a pension to a surviving spouse, a child verification is required. VA will request person who is responsible for the care may file a claim in his or her own right. verification of service from the of the individual, including a spouse or If VA discontinues an award to a appropriate service department if: other relative, or an attorney in fact or surviving spouse because he or she (1) The record does not include agent authorized to act on behalf of the remarries or dies, VA will consider any satisfactory evidence showing the individual under a durable power of child included on the surviving information described in paragraph (b) attorney. If the individual is in the care spouse’s award to have filed a claim for of this section; of an institution, the manager or such benefit in his or her own right on

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the date VA discontinued the award to procedures in this paragraph (c). See, for the award is effective on the date the surviving spouse. example, § 5.53. entitlement arose or the date that VA (3) If a surviving spouse is not entitled (2) Application filed previously—(i) received the claim to reopen, whichever to DIC or death pension. If VA denies Disability benefits. If a claimant is later. a surviving spouse’s claim for DIC or previously filed an application for (Authority: 38 U.S.C. 501(a), 5103A(f), 5108, death pension, VA will consider the disability benefits that met the 5110(a)) claim to be a claim for a child in the requirements of § 5.51, VA will accept surviving spouse’s custody, if the child an informal claim to increase or to Cross Reference: § 20.1304(b)(1)(i) of was named as a dependent in the reopen a claim for disability benefits this chapter for the rule on effective date surviving spouse’s application. If VA without requiring another application, assigned when evidence is submitted to grants death benefits to the child, the except as provided in § 5.56. the Board during a pending appeal. award will be effective as though the (ii) Death benefits. If a claimant § 5.56 Report of examination, treatment, or child had filed the surviving spouse’s previously filed an application for death hospitalization as a claim. denied claim. See §§ 5.431 and 5.538. benefits that met the requirements of (a) Scope. This section describes (Authority: 38 U.S.C. 501(a), 5110(e)) § 5.52, VA will accept an informal claim situations in which VA will accept to increase or to reopen a claim for certain medical evidence as a claim for § 5.53 Claims for benefits under 38 U.S.C. death benefits without requiring any benefits that meets the requirement that 1151 for disability or death due to VA other application, except as provided in treatment or vocational rehabilitation. a claimant file a claim. § 5.588. (b) Claims excluded. VA’s receipt of a VA will consider any communication (Authority: 38 U.S.C. 501(a), 5102(a)) report of examination, treatment, or in writing indicating an intent to file a hospitalization is a claim under this claim for disability compensation or § 5.55 Claims based on new and material evidence. section only under the circumstances dependency and indemnity described in paragraph (c) of this compensation for disability or death due (a) Reopening a claim. A claimant section. VA will not accept a report of to VA hospital care, medical or surgical may reopen a claim if VA has made a examination, treatment, or treatment, examination, training and final decision denying the claim. See hospitalization as a claim for service rehabilitation services, or compensated § 5.1 for the definition of ‘‘final connection. work therapy program to be a claim for decision’’. (c) Claims included. For purposes of (b) New and material evidence. To benefits under 38 U.S.C. 1151 and this section, VA’s receipt of evidence as reopen a claim, the claimant must § 5.350. described in paragraph (d) of this present or VA must secure new and (Authority: 38 U.S.C. 1151) section is a claim under any of the material evidence. If VA receives a following circumstances: Cross Reference: §§ 5.350–5.353. claim to reopen, it will determine (1) Veteran previously granted service whether evidence presented or secured § 5.54 Informal claims. connection. If VA previously granted to reopen the claim is new and material. service connection in a final decision, (a) Definition. Informal claim means (c) Merits of a claim. If the claimant even if a 0 percent rating was assigned, any written communication VA receives has presented or VA has secured new VA’s receipt of evidence will be that seeks an identified benefit and that and material evidence, VA will reopen considered a claim for increased is not on an application. and decide the claim on its merits. (b) Who may file an informal claim. (d) Definitions. New and material compensation if the evidence relates to An informal claim may be filed by: evidence meets the following criteria: the service-connected condition(s). (1) The claimant; (1) New evidence is: (2) VA previously granted pension. If (2) The claimant’s accredited or (i) Evidence the claimant presented or VA previously granted a claim for authorized representative, if appointed VA secured since VA last made a final pension, VA’s receipt of evidence will before VA received the informal claim decision denying the claim the claimant be considered a claim for increased (see §§ 14.630 and 14.631 of this chapter seeks to reopen; and pension. for criteria for authorization of (ii) Not cumulative or redundant of (3) VA previously granted a claim for representatives); evidence of record at that time. service connection but the veteran (3) A Member of Congress; or (2) For purposes of paragraph (d)(1)(i) elected retired pay, or VA denied a (4) A person acting as next friend of of this section, evidence that was claim for pension because the veteran the claimant if the claimant does not submitted with, but not considered by, was receiving retired pay. If VA have the capacity to manage his or her the Board of Veterans’ Appeals (the previously granted service connection affairs. Board) under the circumstances but the veteran elected retired pay, or (c) Effect of filing informal claim—(1) described in § 20.1304(b)(1) of this VA previously denied a claim for No application filed previously. If the chapter will be treated as evidence pension because of the veteran’s receipt claimant has not previously filed an received after VA last made a final of retired pay, VA’s receipt of evidence application for the benefit sought, VA decision on the claim. will be considered a claim for pension will furnish an appropriate application (3) Material evidence is evidence that, or compensation. to a person who files an informal claim. by itself or when considered with (4) VA previously denied a claim for If the claimant files the completed evidence of record when VA made the pension because the veteran was not application no later than 1 year after VA final decision, permanently and totally disabled. If VA provided it, VA will treat it as if filed (i) Relates to an unestablished fact previously denied a claim for pension in on the date VA received the informal necessary to substantiate the claim; and a final decision because the veteran was claim. VA will take no action on the (ii) Raises a reasonable possibility of not permanently and totally disabled, informal claim until the claimant files substantiating the claim. VA’s receipt of evidence will be the completed application. If VA does (e) Effective date. Except as otherwise considered a claim for pension. not require an application for the benefit provided in this chapter, if VA reopens (d) Evidence—(1) Report of sought, VA may accept the informal a claim based on new and material examination, treatment, or claim as sufficient without regard to the evidence and grants the benefit sought, hospitalization at a VA or uniformed

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services facility, or at any other facility (e) Liberalizing law or VA issue. The Veterans’ Appeals. See § 14.633 of this at VA expense. provisions of § 5.152 apply to claims chapter for the provisions concerning an (i) General rule. VA will consider an accepted under this section in the same accredited representative’s right to examination, treatment, or manner as they apply to other formal request a hearing. hospitalization report at a VA or and informal claims. (1) The one-hearing rule. Except as uniformed services medical facility, or (Authority: 38 U.S.C. 501(a)) provided in paragraph (f) of this section, at any other medical facility where the upon request, a claimant or beneficiary veteran was maintained at VA expense, § 5.57 Claims definitions. is entitled to one hearing before the to be a claim under the circumstances The following definitions apply to agency of original jurisdiction at any described in paragraph (c) of this claims for disability benefits, death time on any issue or issues involved in section. benefits, and monetary allowance under a pending matter. When VA sends (ii) Date of claim. The date of receipt 38 U.S.C. chapter 18. written notice of a decision to a of a claim under paragraph (c) of this (a) Informal claim. See § 5.54. claimant or of a proposed reduction, section is: (b) Original claim means the first discontinuance, or other adverse action (A) The date of a veteran’s claim VA receives from a person for under § 5.83 to a beneficiary, VA will examination, treatment, or disability benefits, for death benefits, or also include notice of the right to a hospitalization at a VA or uniformed for monetary allowance under 38 U.S.C. hearing. Except as provided in services medical facility; chapter 18. See §§ 5.51, 5.52, 5.589, and paragraph (a)(2) of this section, a (B) The date of pre-authorized 5.590. claimant or beneficiary who had a admission to a non-VA hospital at VA (c) Pending claim means a claim in hearing before the Board of Veterans’ expense; which VA has not made a final decision. Appeals (Board) reviewed the matter is (C) The date of a uniformed service See § 5.1 for the definition of ‘‘final not entitled to an additional hearing examination that is the basis for decision.’’ after that matter is remanded by the granting severance pay to a former (d) Claim for increase means any Board to the agency of original member of the Armed Forces on the claim for an increase in the rate of a jurisdiction. temporary disability retired list; or benefit VA is paying under a current (2) Exception to the one-hearing rule. (D) The date VA received notice of award, or for resumption of payments A claimant or beneficiary will be admission to a non-VA hospital, if VA previously discontinued. provided one additional hearing at the authorized the admission at VA expense (Authority: 38 U.S.C. 501(a)) agency of original jurisdiction on any after the date of admission. issue involved in a matter when the (2) Evidence from a private physician §§ 5.58–5.79 [Reserved] claimant or beneficiary asserts all of the or lay person—(i) General rule. VA will following: consider evidence from a private Rights of Claimants and Beneficiaries (i) He or she has discovered a new physician or lay person to be a claim § 5.80 Right to representation. witness or new evidence to substantiate under paragraph (c) of this section if the Subject to the provisions of §§ 14.626 the claim; evidence is within the competence of through 14.637 of this chapter, a (ii) He or she can present that witness the physician or lay person and it shows claimant or beneficiary is entitled to the or evidence only at an oral hearing; and a reasonable probability of entitlement representation of his or her choice at (iii) The witness or evidence could to benefits. every stage in the claims process. When not have been presented at the original (ii) Date of claim. The date VA VA initially contacts a claimant or hearing. receives the evidence from a private (b) Purpose of hearings. The purpose beneficiary by mail, VA will also physician or lay person will be the date of a hearing under this section is to include written notice of his or her right of the claim. provide the claimant or beneficiary with to representation. (3) Evidence from State and other an opportunity to introduce into the institutions—(i) General rule. VA will (Authority: 38 U.S.C. 501(a), 5901–5904) record, in person, any available consider examination reports, clinical Cross Reference: § 19.25 of this evidence or arguments that he or she records, or transcripts of records from chapter, ‘‘Notification by agency of considers important to the matter. State, county, municipal, or recognized original jurisdiction of right to appeal,’’ (c) Where VA will conduct hearings. private institutions, or other which includes notification of the right VA will conduct the hearing in the VA Government hospitals to be a claim for to representation. office that has jurisdiction over the benefits under paragraph (c) of this matter or in the VA office with section, except those described in § 5.81 Submission of information, adjudicative functions nearest the paragraph (d)(1) of this section. An evidence, or argument. claimant’s or beneficiary’s residence. appropriate official of the institution VA will include in the evidence of Subject to available resources and solely must authenticate these records. VA record any document, testimony, at the option of VA, VA may hold the will grant benefits if the records are argument, or other information in any hearing at any other VA facility or adequate for rating purposes and form that a claimant provides VA in federal building with suitable facilities. demonstrate entitlement to an increased support of a claim or of an issue raised (d) VA responsibilities in conjunction rating, to pension, or to special monthly in the claim. with hearings. (1) VA will provide pension; otherwise findings must be (Authority: 38 U.S.C. 501(a), 5107(b)) advance written notice to a claimant or verified by VA examination. The VA beneficiary of the time and place of the Under Secretary for Health or his or her § 5.82 Right to a hearing. hearing at least 10 days before the physician designee must certify reports (a) General. This section pertains only scheduled hearing date. The claimant or received from private institutions not to hearings in matters under the beneficiary may waive the 10-day listed by the American Hospital jurisdiction of a VA agency of original advance notice requirement. If the Association. jurisdiction. See §§ 20.700 and 20.1304 hearing arises in the context of a (ii) Date of claim. If filed by or for the of this chapter for the provisions proposed reduction, discontinuance, veteran, the date VA receives such concerning a claimant’s or beneficiary’s other adverse action, or in an appeal, a evidence will be the date of the claim. right to a hearing with the Board of VA employee or employees having

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decision-making authority and who did adversely affects benefits. VA will accordance with paragraph (b) of this not previously participate in the case conduct a hearing before the adverse section. will conduct the hearing. The employee action only if VA receives a request for (b) VA will send a notice of a or employees will establish a record of one no later than 30 days after the date decision. VA will send to a claimant or the hearing and will issue a decision of the notice of the proposed action. beneficiary written notice of any after the hearing. (1) If the beneficiary does not timely decision that affects the payment of (2) The VA employee or employees request a hearing, or fails without good benefits or the granting of relief to that conducting the hearing will explain cause to report for a scheduled hearing, claimant or beneficiary. The notice will fully the issues and suggest the VA will make the decision on the explain: submission of evidence the claimant or proposed action based on the evidence (1) If a claim is not fully granted, the beneficiary may have overlooked that of record. reason for the decision and a summary would tend to prove the matter. To (2) If VA receives a request for a of the evidence considered; ensure clarity and completeness of the hearing no later than 30 days after the (2) The effective date of the decision; hearing record, questions directed to the date of the notice of the proposed (3) The right to a hearing on any issue claimant or beneficiary, or to witnesses, action, VA will send the beneficiary involved in the claim, in accordance will be framed to explore fully the basis written notice of the time and place for with § 5.82; for entitlement rather than with intent the hearing. (4) The right to representation in to refute evidence or to discredit (3) VA will send the written notice of accordance with § 5.80; and testimony. The employee, or employees, the time and place of the hearing at least (5) The right to appeal, including how conducting the hearing will ensure that 10 days before the scheduled hearing and when to exercise this right to all testimony is given under oath or date. The beneficiary may waive the 10- appeal. (Appellate procedures are found affirmation. day advance notice requirement. in part 20 of this chapter.) (3) If a hearing is conducted, VA will (4) If a beneficiary timely requests a Cross Reference: See §§ 5.162, 5.163, make a decision based upon evidence hearing, VA will not make the decision 5.175, 5.83(a), and 5.177 for procedures and testimony presented during the reducing, discontinuing, or otherwise applicable to the type of action VA is hearing in addition to all other evidence adversely affecting benefits before the taking. of record. scheduled date of the hearing. (c) When VA will send a (e) Claimant’s and beneficiary’s rights (5) If a hearing is conducted, VA will contemporaneous notice of reduction, and responsibilities in conjunction with make the decision based upon evidence discontinuance, or other adverse action. hearings. (1) The claimant or beneficiary and testimony presented during the VA will send a written notice to a is entitled to have witnesses testify. The hearing in addition to all other evidence beneficiary at the same time it reduces, claimant or beneficiary, and witnesses, of record. discontinues, or otherwise takes an must appear at the hearing, in person or Cross Reference: See §§ 5.162, 5.163, adverse action under any of the by videoconferencing. Normally, VA 5.175, 5.83(a), and 5.177 for the circumstances described in paragraphs will not schedule a hearing for the sole procedures VA follows when revising (c)(1) through (6) of this section. purpose of receiving argument from a decisions and the effective date of these (1)(i) The adverse action results solely representative, but VA may grant a decisions. from information or statements, request for such a hearing if good cause (Authority: 38 U.S.C. 501(a)(1)) provided orally or in writing to VA by is shown. the beneficiary or the fiduciary, as to (2) All expenses incurred by the § 5.83 Right to notice of decisions and income, net worth, dependency, or claimant or beneficiary in conjunction proposed adverse actions. marital status; with the hearing are the responsibility (a) VA will send an advance notice of (ii) The information or statements are of the claimant or beneficiary. a proposed adverse action. (1) Except as factual and unambiguous; and (3) If a claimant or beneficiary is provided in paragraph (c) of this (iii) The beneficiary or fiduciary has unable to attend a scheduled hearing, he section, VA will send written notice of knowledge or notice that such or she may contact VA in advance to a proposed adverse action to a information or statements may be used reschedule the hearing for a date and beneficiary at least 60 days before it to calculate benefit amounts. See § 5.130 time which is acceptable to both parties. reduces or discontinues benefits, severs for procedures governing the (4) If a claimant or beneficiary fails to service connection, or otherwise submission by a beneficiary or by his or report for a scheduled hearing adversely affects the beneficiary’s her fiduciary of oral or written (i) Without good cause, VA will receipt of benefits. The notice will information or statements. decide the claim based on the evidence include: (2) The adverse action results from the of record without a hearing. (i) Detailed reasons for the proposed beneficiary’s or fiduciary’s failure to (ii) With good cause, VA will adverse action and a statement of the return an eligibility verification report reschedule the hearing after the material facts; as required by § 5.708. claimant or beneficiary informs VA that (ii) The right to a hearing on the (3) VA receives credible evidence the cause of the failure to report has proposed adverse action as provided in indicating that a beneficiary has died. resolved and requests that VA § 5.82(f); and However, VA is not required to send a reschedule the hearing. Examples of (iii) Notification that the beneficiary notice of discontinuance of benefits good cause include, but are not limited has 60 days to submit evidence or (contemporaneous or otherwise) if VA to, illness or hospitalization of the argument to show why VA should not receives: claimant or beneficiary, or death of an take the proposed adverse action. (i) A death certificate; immediate family member. (2) If VA receives no additional (ii) A terminal hospital report (f) Additional requirements for evidence or argument within the 60-day verifying the death of a beneficiary; hearings before proposed adverse period, or the evidence or argument (iii) A claim for VA burial benefits; actions. Except as otherwise provided in received does not demonstrate that the (iv) An ‘‘Application for United States § 5.83(c), VA will provide written notice proposed adverse action should not be Flag for Burial Purposes’’; or of the right to a hearing before VA taken, then VA will take the action and (v) A ‘‘Record of Interment’’ from the reduces, discontinues, or otherwise provide notice to the beneficiary in National Cemetery Administration.

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(4) The adverse action results from a (1) Substantially complete application information and evidence that is beneficiary’s written and signed means an application containing the necessary to substantiate the claim. (For statement renouncing benefits (see following: purposes of this section, the term § 5.683 on renouncement). (i) The claimant’s name; his or her ‘‘maximum benefit’’ means the highest (5) The adverse action results from a relationship to the veteran, if applicable; evaluation assignable in accordance veteran’s written and signed statement (ii) Sufficient service information for with the evidence of record, as long as that he or she has returned to active VA to verify the claimed service, if such evidence is adequate for rating military service. The statement must applicable; purposes and sufficient to grant the include each of the following: (iii) The benefit claimed and any earliest possible effective date in (i) The branch of service; medical condition(s) on which it is accordance with 38 U.S.C. 5110.) If (ii) The date of reentry into service; based; substantiating evidence is required with (iii) The veteran’s acknowledgement (iv) The claimant’s signature; and respect to the veracity of a witness or that receipt of active military service (v) In claims for nonservice-connected the authenticity of documentary pay precludes receipt for the same disability or death pension and parents’ evidence timely filed, there will be period of VA disability compensation or dependency and indemnity allowed for the submission of such pension. See § 5.746 regarding active compensation, a statement of income. evidence 1 year after the date of the service pay. (2) For purposes of paragraph (c)(4)(i) request therefor. However, any evidence (6) The adverse action results from a of this section, event means one or more to enlarge the proofs and evidence garnishment order issued under 42 incidents associated with places, types, originally submitted is not considered U.S.C. 659(a), allowing the U.S. to and circumstances of service giving rise substantiating evidence. consent to garnishment or withholding to a disability or disabilities. (2) If VA receives an incomplete of pay for members of the Armed Forces (3) Information means non- application for benefits, it will send and, in certain circumstances, disability evidentiary facts, including, but not written notice to the claimant of the compensation, to enforce child support limited to the following: information necessary to complete the and alimony obligations. See 42 U.S.C. (i) The claimant’s Social Security application and will defer assistance to 659(h)(1)(A)(ii)(V) for the limited number or address; substantiate the claim until the claimant circumstance of garnishing certain (ii) The name and military unit of a submits this information. disability pay. person who served with the veteran; or (3) If the information VA requests (iii) The name and address of a (Authority: 38 U.S.C. 501(a), 5104) under paragraph (b)(1) or (2) of this medical care provider who may have section, or the evidence requested under § 5.84 Restoration of benefits following evidence pertinent to the claim. paragraph (b)(1) of this section, is not adverse action. (b) VA’s duty to send notice to received by 1 year after the date of the claimants of necessary information or (a) (1) If VA reduces or discontinues notice, pension, compensation, or evidence. (1)(i) When VA receives an benefits, or takes other action adverse to dependency and indemnity application for benefits, it will send the a beneficiary, based upon written compensation may not be paid by claimant written notice of any information or an oral statement reason of that application. If a claimant information and medical or lay evidence provided by the beneficiary or fiduciary, submits information or evidence that is necessary to substantiate the VA will retroactively restore such concerning his or her mailing address, claim. In the notice, VA will inform the benefits if the beneficiary or fiduciary that is not considered information or claimant which information and asserts, no later than 30 days after the evidence under this paragraph (b). evidence, if any, that the claimant is to date of the VA notice of adverse action, provide to VA and which information (Authority: 38 U.S.C. 5102(b), 5103(a), either of the following: and evidence, if any, that VA will 5103A(3)) (i) The written information or oral attempt to obtain on behalf of the (4) No duty to provide the notice statement is inaccurate. claimant. The claimant must provide described in paragraph (b)(1) of this (ii) The written information or oral the information and evidence requested section arises: statement was not provided by the by VA no later than 1 year after the date (i) Upon receipt of a Notice of beneficiary or his or her fiduciary. of the notice. If VA has not received the Disagreement; or (2) This paragraph (a) does not limit information and evidence by 30 days (ii) When, as a matter of law, the right of a beneficiary to have after the notice, then VA may decide the entitlement to the benefit claimed benefits retroactively restored based on claim prior to the expiration of the 1- cannot be established. evidence submitted within the 1-year year period. VA will decide the claim appeal period under § 5.153. (Authority: 38 U.S.C. 5103(a), 5103A(a)(2)) based on all the information and (b) Restoration of benefits under this evidence contained in the file, including (c) VA’s duty to assist a claimant in section does not preclude VA from later information and evidence it has obtaining evidence. Upon receipt of a taking action that adversely affects the obtained on behalf of the claimant and substantially complete application for beneficiary’s receipt of benefits based on any VA medical examinations or benefits, VA will make reasonable the written information or oral medical opinions. If VA does so, and the efforts to help a claimant obtain statements referred to in paragraph (a) of claimant subsequently provides the evidence necessary to substantiate the this section. information and evidence no later than claim. In addition, VA will give the (Authority: 38 U.S.C. 501(a), 5103(b)(3), 1 year after the date of the notice, then assistance described in paragraphs (c)(1) 5104) VA must readjudicate the claim. through (3) of this section to an individual attempting to reopen a §§ 5.85–5.89 [Reserved] (Authority: 38 U.S.C. 5103) finally decided claim. VA will not pay Duties of VA (ii) The provisions of this paragraph any fees charged by a custodian to (b) apply to all applications for benefits provide records requested. § 5.90 VA assistance in developing claims. under part 5 of this chapter unless VA (1) Obtaining records not in the (a) Definitions. For purposes of this awards the claimant the maximum custody of a Federal department or section, the following definitions apply: benefit without providing notice of any agency. VA will make reasonable efforts

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to obtain relevant records not in the (i) The claimant must cooperate fully 5.268 manifesting during an applicable custody of a Federal department or with VA’s reasonable efforts to obtain presumptive period provided the agency, to include records from State or relevant records from Federal agency or claimant has the required service or local governments, private medical care department custodians. If requested by triggering event to qualify for that providers, current or former employers, VA, the claimant must provide enough presumption; and and other non-Federal governmental information to identify and locate the (C) Indicates that the claimed sources. Such reasonable efforts will existing records, including the disability or symptoms may be generally consist of an initial request for custodian or agency holding the records; associated with the established event, the records and, if the records are not the approximate time frame covered by injury, or disease in service or with received, at least one follow-up request. the records; and, in the case of medical another service-connected disability. A follow-up request is not required if a treatment records, the condition for (ii) Paragraph (c)(4)(i)(C) of this response to the initial request indicates which treatment was provided. In the section could be satisfied by competent that the records sought do not exist or case of records requested to corroborate evidence showing post-service that a follow-up request for the records a claimed stressful event in service, the treatment for a condition, or other would be futile. If VA receives claimant must provide information possible association with military information showing that subsequent sufficient for the records custodian to service. requests to this or another custodian conduct a search of the corroborative (iii) This paragraph (c)(4) applies to a could result in obtaining the records records. claim to reopen a finally adjudicated sought, then reasonable efforts will (ii) If necessary, the claimant must claim only if new and material evidence include an initial request and, if the authorize the release of existing records is presented or secured. records are not received, at least one in a form acceptable to the custodian or (Authority: 38 U.S.C. 5103A(d)) follow-up request to the new source or agency holding the records. (d) Circumstances where VA will an additional request to the original (Authority: 38 U.S.C. 5103A(b)) refrain from or discontinue providing source. assistance. VA will refrain from (i) The claimant must cooperate fully (3) Obtaining records in disability providing assistance in obtaining with VA’s reasonable efforts to obtain compensation claims. In a claim for evidence for a claim if the substantially relevant records from non-Federal disability compensation, VA will make complete application for benefits agency or department custodians. The efforts to obtain the claimant’s service indicates that there is no reasonable claimant must provide enough treatment records, if relevant to the possibility that any assistance VA claim; other relevant records pertaining information to identify and locate the would provide to the claimant would to the claimant’s active military, naval existing records, including the person, substantiate the claim. VA will or air service that are held or company, agency, or other custodian discontinue providing assistance in maintained by a governmental entity; holding the records; the approximate obtaining evidence for a claim if the VA medical records or records of time frame covered by the records; and, evidence obtained indicates that there is examination or treatment at non-VA in the case of medical treatment records, no reasonable possibility that further the condition for which treatment was facilities authorized by VA; and any assistance would substantiate the claim. provided. other relevant records held by any Circumstances in which VA will refrain (ii) If necessary, the claimant must Federal department or agency. The from or discontinue providing authorize the release of existing records claimant must provide enough assistance in obtaining evidence in a form acceptable to the person, information to identify and locate the include, but are not limited to: company, agency, or other custodian existing records including the custodian (1) The claimant’s ineligibility for the holding the records. or agency holding the records; the benefit sought because of lack of (Authority: 38 U.S.C. 5103A(b)) approximate time frame covered by the qualifying service, lack of veteran status, records; and, in the case of medical (2) Obtaining records in the custody of or other lack of legal eligibility; treatment records, the condition for (2) Claims that are inherently a Federal department or agency. VA which treatment was provided. will make as many requests as are incredible or clearly lack merit; and (3) An application requesting a benefit necessary to obtain relevant records (Authority: 38 U.S.C. 5103A(c)) to which the claimant is not entitled as from a Federal department or agency. (4) Providing medical examinations or a matter of law. These records include but are not obtaining medical opinions. (i) In a limited to military records, including claim for disability compensation, VA (Authority: 38 U.S.C. 5103A(a)(2)) service treatment records; medical and will provide a medical examination or (e) Duty to inform claimant of other records from VA medical obtain a medical opinion based upon a inability to obtain records. (1) If VA facilities; records from non-VA facilities review of the evidence of record if VA makes reasonable efforts to obtain providing examination or treatment at determines it is necessary to decide the relevant non-Federal records but is VA expense; and records from other claim. A medical examination or unable to obtain them, or after Federal agencies, such as the Social medical opinion is necessary if the continued efforts to obtain Federal Security Administration. VA will end information and evidence of record does records concludes that it is reasonably its efforts to obtain records from a not contain sufficient competent certain they do not exist or further Federal department or agency only if medical evidence to decide the claim, efforts to obtain them would be futile, VA concludes that the records sought do but: VA will provide the claimant with not exist or that further efforts to obtain (A) Contains competent lay or notice of that fact. VA will make a those records would be futile. Cases in medical evidence of a current diagnosed record of any oral notice conveyed to which VA may conclude that no further disability or persistent or recurrent the claimant. For non-Federal records efforts are required include those in symptoms of disability; requests, VA may provide the notice at which the Federal department or agency (B) Establishes that the veteran the same time it makes its final attempt advises VA that the requested records suffered an event, injury or disease in to obtain the relevant records. In either do not exist or the custodian does not service, or has a disease or symptoms of case, the notice must contain the have them. a disease listed in §§ 5.261 through following information:

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(i) The identity of the records VA was advisory medical opinion may be of the Department of Defense have been unable to obtain; obtained from one or more medical lost or destroyed, or otherwise have (ii) An explanation of the efforts VA experts who are not employees of VA. become unavailable, VA will not deny made to obtain the records; Opinions will be obtained from the claim without attempting to obtain (iii) A description of any further recognized medical schools, potentially relevant evidence from action VA will take regarding the claim, universities, clinics or medical alternative sources. (Examples of including, but not limited to, notice that institutions with which arrangements evidence from alternative sources are VA will decide the claim based on the for such opinions have been made, and listed in paragraph (c) of this section.) evidence of record unless the claimant an appropriate official of the institution (b) Destruction due to fire at the submits the records VA was unable to will select the individual expert(s) to National Personnel Records Center. On obtain; and render an opinion. July 12, 1973, there was a fire at the (iv) A notice that the claimant is (b) Requests. A request for an National Archives and Records ultimately responsible for providing the independent medical opinion in Administration’s National Personnel evidence. conjunction with a claim pending at the Records Center (NPRC). When the NPRC (2) If VA becomes aware of the regional office level may be initiated by reports that it does not have the existence of relevant records before the office having jurisdiction over the claimant’s records because they were deciding the claim, VA will send notice claim, by the claimant, or by his or her destroyed by this fire, VA will not deny to the claimant of the records and representative. The request must be the claim without attempting to obtain request that the claimant provide a submitted in writing and must set forth potentially relevant evidence from release for the records. If the claimant in detail the reasons why the opinion is alternative sources. (Examples of does not provide any necessary release necessary. All such requests will be evidence from alternative sources are of the relevant records that VA is unable submitted through the Veterans Service listed in paragraph (c) of this section). to obtain, VA will request that the Center Manager or the Pension The following are the two main groups claimant obtain the records and provide Management Center Manager of the of records destroyed by the NPRC fire: them to VA. office having jurisdiction over the claim, (1) Army. Records for certain Army and those requests which in the (Authority: 38 U.S.C. 5103A(b)(2)) veterans who served between November judgment of that official merit 1, 1912, and January 1, 1960. Records of (f) Notice. For purpose of the notice consideration will be referred to the Army retirees who were alive on July requirements in paragraphs (b) and (e) Compensation Service or Pension and 12, 1973, were not destroyed by the fire of this section, notice to the claimant Fiduciary Service for approval. because they were stored at a different means notice to the claimant or his or (c) Approval. Approval will be location. her fiduciary, if any, as well as to his or granted only upon a determination by (2) Air Force. Records for certain Air her representative, if any. the Compensation Service that the issue Force veterans with surnames (Authority: 38 U.S.C. 5102(b), 5103(a)) under consideration poses a medical ‘‘Hubbard’’ through Z who were problem of such complexity, or has (g) Secretary’s Discretion. The discharged between September 25, generated such controversy in the 1947, and January 1, 1964, and had no authority recognized in subsection (g) of medical community at large, as to justify 38 U.S.C. 5103A is reserved to the sole retired or Reserve status. solicitation of an independent medical (c) Evidence from alternative sources. discretion of the Secretary and will be opinion. When approval has been Depending on the facts of the case, implemented, when deemed granted, the Compensation Service will sources of potentially relevant evidence appropriate by the Secretary, through obtain the opinion. A determination that from alternative sources for records the promulgation of regulations. an independent medical opinion is not described in paragraphs (a) or (b) of this (Authority: 38 U.S.C. 5103A(g)) warranted may be contested only as part section include the following: of an appeal on the merits of the (1) A claimant’s personal copies of § 5.91 Medical evidence for disability decision rendered on the primary issue claims. discharge papers, service treatment by the agency of original jurisdiction. records, or other evidence of military (a) Medical evidence rendering VA (d) Notification. The Compensation service; examination unnecessary. VA may Service will send written notice to the (2) State Adjutant Generals’ offices or adjudicate a claim without providing a claimant when the request for an State historical commissions; VA examination or period of hospital independent medical opinion has been (3) The Office of Personnel observation if any private or government approved with regard to his or her claim Management (if the veteran was examination or hospital report of record and will furnish the claimant with a employed by a Federal or State agency), is adequate to adjudicate the claim. copy of the opinion when it is received. a private employer, or the Railroad (b) Rating injuries and conditions If, in the judgment of the Secretary, Retirement Board (if the veteran was obviously incurred in service. VA may disclosure of the independent medical employed by a railroad); assign a rating for combat injuries or opinion would be harmful to the (4) The Social Security other conditions that obviously were physical or mental health of the Administration; incurred in service as soon as sufficient claimant, disclosure will be subject to (5) VA or military files or records evidence to rate the severity of the the special procedures set forth in relating to an earlier claim filed with condition is available, even if VA has § 1.577 of this chapter. VA; not yet received the claimant’s (6) Service medical personnel or enlistment examination and other (Authority: 5 U.S.C. 552a(f)(3); 38 U.S.C. 5109, 5701(b)(1)) people who knew the veteran during his service records. or her service; (Authority: 38 U.S.C. 1154, 5103A, 5125) § 5.93 Service records which are lost, (7) State or local accident and police destroyed, or otherwise unavailable. reports from the time and place the § 5.92 Independent medical opinions. (a) Records in the custody of the veteran served; (a) General. When warranted by the Department of Defense. When records (8) Employment physical medical complexity or controversy that are potentially relevant to a claim examinations or insurance involved in a pending claim, an for benefits and that were in the custody examinations;

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(9) Hospitals, clinics, or private this section will be the date of mailing (e) Claimant’s application for VA physicians who treated a veteran, of notice to the claimant or beneficiary benefits. If, within 30 days after VA’s especially soon after separation, or of the action required and the time limit request, the claimant fails to provide the pharmacies that filled prescriptions; therefor. The date of the letter of notice requested Social Security number or (10) Letters written during service or will be considered the date of mailing TIN, or to show that no Social Security photographs taken during service. for purposes of computing time limits. number or TIN was assigned, then VA (Authority: 38 U.S.C. 501(a)) Regarding appeals, see §§ 20.302 and will deny the claim. If a claimant fails 20.305 of this chapter. to provide the Social Security number §§ 5.94–5.98 [Reserved] (Authority: 38 U.S.C. 501(a)) or TIN of a dependent, then VA will Responsibilities of Claimants and deny benefits for the dependent. If VA Beneficiaries § 5.101 Requirement to provide Social denies the claim or denies benefits for Security numbers. the dependent, and the claimant § 5.99 Extensions of certain time limits. (a) General requirement to provide subsequently provides the Social (a) Requests for extension. A time Social Security number or Taxpayer Security number or TIN no later than 1 limit specified in this part for providing Identification Number. If requested to year after the notice of that decision, information or evidence necessary to do so by VA, each claimant for, or then VA must readjudicate the claim. substantiate a claim or for challenging a beneficiary of, disability compensation, (f) When a Social Security number or decision by an agency of original pension, dependency and indemnity TIN is not required. A claimant or jurisdiction may be extended for good compensation, or a monetary benefit beneficiary is not required to provide a cause. under 38 U.S.C. chapter 18 must Social Security number or TIN for any (b) Form and filing of request. The provide to VA his or her Social Security person to whom a Social Security request for extension of time must be in number, or Taxpayer Identification number or TIN has not been assigned. writing and state why more time is Number (TIN) if that person is not an (Authority: 38 U.S.C. 501(a), 1832, 5101(c)) needed. It must be filed with the VA individual, as well as the Social § 5.102 Reexamination requirements. office that made the decision or required Security number of any dependent or the information or evidence, unless VA other person to or for whom benefits are (a) General. VA may reexamine a has sent notice to the claimant that his sought or received. Anyone who signs a beneficiary, or require a period or or her VA file has been transferred to form on behalf of such an individual periods of hospital observation, at any another VA office. must also provide his or her Social time to ensure that the beneficiary’s (c) Late Requests. If the claimant Security number or TIN if requested to disability rating is accurate. For requests an extension after the do so by VA. example, VA may reexamine a expiration of the applicable time limit, (b) Individuals receiving VA benefits. beneficiary if evidence indicates that the the claimant must complete the action If, within 60 days after VA’s request, a disability for which VA is making required in paragraph (a) of this section payments may no longer exist or may beneficiary fails to provide a Social prior to or concurrently with filing the have improved to such a degree that a Security number or to show that no request for the extension. The request reduced rating might be appropriate; or Social Security number or TIN was for the extension must state why the if reexamination is otherwise necessary assigned, then VA will take the required action could not have been to ensure that the disability is accurately following action: taken during the applicable time limit evaluated. Paragraphs (c) and (d) of this (1) If the beneficiary fails to provide and could not have been taken sooner section provide general guidelines for his or her own Social Security number than it was. VA will grant the extension scheduling reexaminations, but do not or TIN, then VA will discontinue if good cause is shown, but no extension limit VA’s authority to schedule benefits. will be granted if VA has made a reexaminations or periods of hospital (2) If the beneficiary fails to provide decision on the claim to which the observation at any time in order to the Social Security number or TIN of required information or evidence relates ensure that a disability is accurately any dependent to or for whom benefits and the time to appeal that decision has rated. expired. See § 20.304 of this chapter. are being paid, then VA will reduce the (b) Beneficiaries are required to report (d) Appeals of denial of a request for benefits payable by the amount payable for scheduled reexaminations. A extension. Denial of an extension under to or for such dependent. However, VA beneficiary must report for a VA- this section is a separately appealable may still consider that dependent’s scheduled reexamination. If he or she issue. income for purposes of determining does not report, VA will take the steps entitlement to income-based benefits. (Authority: 38 U.S.C. 501 (a)) described in § 5.103. (c) Effective date of reduction or (c) Scheduling reexaminations in § 5.100 Time limits for claimant or discontinuance. If VA has not received disability compensation cases. The beneficiary responses. the requested Social Security number or following rules apply to disability (a) In computing the time limit for any TIN 60 days after VA’s request, then VA compensation cases: action required of a claimant or will discontinue or reduce benefits (1) General rule. As a general rule, if beneficiary, including the filing of under paragraph (b) of this section periodic future reexaminations are claims or evidence requested by VA, the effective the first day of the month after warranted, VA may schedule such first day of the specified period will be the 60-day period expires. reexaminations to occur between 2 and excluded and the last day included. (d) Effective date of resumed 5 years after the date on which VA last This rule is applicable in cases in which payments. If a beneficiary provides VA examined the beneficiary, unless some the time limit expires on a workday. with the requested Social Security other law or regulation specifies another Where the time limit would expire on number or TIN, VA will resume time period. a Saturday, Sunday, or Federal holiday, payment of benefits at the prior rate, (2) When VA will not schedule the next succeeding workday will be effective on the date VA received the periodic reexaminations. VA will not included in the computation. Social Security number, provided that schedule periodic future reexaminations (b) The first day of the specified payment of benefits at that rate is under the following circumstances: period referred to in paragraph (a) of otherwise in order. (i) The disability is static;

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(ii) Medical examinations or hospital rating. If a claimant or beneficiary, with receive either notification that the reports show that the symptoms and good cause, fails to report for a VA beneficiary will report for findings of the disability have persisted examination or reexamination, VA will reexamination or evidence showing that without significant improvement for at reschedule the examination or VA should not discontinue or reduce least 5 years; reexamination. Examples of good cause payments no later than 60 days after the (iii) The beneficiary has reached age are listed in paragraph (f) of this section. date of VA’s notice. If VA receives 55, except in unusual circumstances; (b) Failure without good cause to notification that the beneficiary will (iv) The disability in question is rated report for a scheduled examination: report for reexamination, it will at a prescribed mandatory minimum Claimants. If a claimant, without good schedule a reexamination. If VA level under the Schedule for Rating cause, fails to report for a VA receives evidence showing that VA Disabilities in part 4 of this chapter; or examination, VA will decide the claim should not discontinue or reduce (v) The combined disability rating as follows: payments, it will not do so. would not decrease even if a (1) For an original disability (3) No response or inadequate reexamination for the specific disability compensation claim, VA will make a response. If VA does not receive the at issue would result in a decreased decision based on the evidence of notification or evidence required by rating for that disability; however, if a record. paragraph (d)(2) of this section, VA will reexamination potentially would reduce (2) For any other original claim, take the action described in the notice an award of special monthly reopened claim, or a claim for increase, referred to in paragraph (d)(1) of this compensation, reexamination may be VA will deny the claim. section. The action will be effective on warranted even if the combined (c) Failure without good cause to the date identified in the notice or the disability rating would not be reduced. report for a scheduled reexamination: first day of the month after the month See § 4.25 of this chapter for Beneficiary. (1) Continuing entitlement for which VA last paid benefits to the information on ‘‘combined ratings’’ and to a benefit. If a beneficiary fails, beneficiary, whichever is later. how they are calculated. without good cause, to report for a VA (4) Hearing. The beneficiary may (3) Discharge from service with reexamination and continuing request a hearing to challenge VA’s unstabilized disability. If a person is entitlement to the benefit cannot be proposed adverse action as provided in discharged from military service with a confirmed without a VA reexamination, § 5.82(f). If, 30 days after the notice, VA disability that has not yet become stable VA will propose to discontinue the has not received the beneficiary’s or with a disability caused by a wound benefit. request for a hearing, then VA will or injury that has not yet completely (2) Continuing entitlement to a discontinue or reduce payments healed, VA may, pursuant to § 4.28 of particular rating. If a beneficiary fails, effective on the date the notice specified this chapter, temporarily assign a without good cause, to report for a VA or the first day of the month after the prestabilization disability rating of reexamination and continuing month for which VA last paid benefits, either 100 percent or 50 percent to the entitlement to a particular disability whichever is later, unless evidence is disability. If VA assigns a rating for one or more of the presented that warrants a different prestabilization rating under § 4.28 of beneficiary’s disabilities cannot be determination. this chapter, VA will schedule a confirmed without a VA reexamination, (5) Rescheduled reexamination. The reexamination to occur 6 to 12 months VA will propose to reduce the rating for beneficiary may ask VA to schedule after the date the person separates from the disability or disabilities at issue to another date for reexamination, either service, to determine the appropriate one of the following, as applicable: instead of or in addition to asking for a schedular rating under the Schedule for (i) The highest disability rating hearing. If VA receives the request to Rating Disabilities in part 4 of this assigned to that disability that is reschedule before the payments are chapter. protected under § 5.170(a). discontinued or reduced, VA will halt (d) Pension cases. The following rules (ii) The rating specified as the its action to discontinue or reduce apply to pension cases: minimum rating permitted for that payments and will schedule a new (1) If the beneficiary has reached age disability under the Schedule for Rating reexamination date. VA will send 55, VA will schedule a reexamination Disabilities in part 4 of this chapter. written notice to the beneficiary that if only in unusual circumstances. (iii) Zero percent, unless the rating is he or she fails to report for the (2) VA generally will not schedule a protected under the provisions of rescheduled reexamination, then VA reexamination if it is obvious that the § 5.170 or the Schedule for Rating will immediately discontinue or reduce disability is unlikely to improve over Disabilities in part 4 of this chapter the payments as of the first day of the the long term or the medical history has prescribes a minimum rating for the month after the month for which VA confirmed the presence of a permanent disability or disabilities. last paid benefits. and total nonservice-connected Cross Reference: See § 5.170, (e) Resumption of payments. If VA disability. In other cases, VA will ‘‘Calculation of 5-year, 10-year, and 20- discontinues or reduces payments for reexamine only in unusual year protection periods’’. failure to report for a reexamination, VA circumstances. (d) Advance notice of proposed will issue a new decision after the (Authority: 38 U.S.C. 501(a)) discontinuance or reduction. (1) Notice. beneficiary reports for a VA If VA proposes to discontinue or reduce reexamination. VA will send written § 5.103 Failure to report for VA payment under paragraph (b) or (c) of notice to the beneficiary of any period examination or reexamination. this section, VA will send written notice of time for which it could not pay (a) General. VA will schedule a VA to the beneficiary of its intended action. benefits at the previous level and the examination when needed to establish The notice must include the date on reason(s) why, and identify the period entitlement to a benefit or to an which the proposed discontinuance or of time for which it has resumed paying increased disability rating. VA will reduction will be effective, and the such benefits. schedule a VA reexamination when beneficiary’s procedural rights as listed (f) Examples of good cause. Examples needed to confirm continued in § 5.83(a)(1) through (4). of good cause for failure to report for a entitlement to a benefit or continued (2) Time period during which the VA examination or reexamination entitlement to a particular disability beneficiary must respond. VA must include a claimant’s or beneficiary’s

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illness or hospitalization, and the death statements, evidence, or information by (i) Identifies himself or herself as a of an immediate family member. VA claimants. It is VA’s general policy to VA employee who is authorized to will determine on a case-by-case basis allow submission of statements, receive the statement, which means the whether good cause is established. evidence, or information by regular VA employee must be authorized to take (Authority: 38 U.S.C. 501(a)) mail, hand delivery, facsimile (fax) actions under § 2.3 of this chapter or machine, or other electronic means that § 5.5; § 5.104 Certifying continuing eligibility to the Secretary prescribes, unless a VA (ii) Verifies the identity of the receive benefits. regulation, application, or directive provider as the beneficiary or his or her Except as otherwise provided, the expressly requires a different method of fiduciary or authorized representative following rules govern the certification submission (for example, where an by obtaining specific information about of continuing eligibility. application directs a claimant to file the beneficiary that is contained in the (a) Responsibility to certify continuing certain documents by regular mail or beneficiary’s VA records, such as Social eligibility upon request. Each hand delivery). Security number, date of birth, branch beneficiary, if requested to do so by VA, (2) Content of submissions. Paragraph of military service, dates of military must certify whether the factual basis (a)(1) of this section concerns the service, or other information; that established entitlement to benefits method by which written statements, (iii) Informs the provider that VA will still exists. The requested certification evidence, or information is filed with use the statement to determine may concern marital status, income, VA. Requirements regarding the content entitlement and to calculate benefit number of dependents, or any other fact of the submission must still be met. amounts; and affecting entitlement to a benefit or the (3) VA action following submission of (iv) During or following the amount of benefits payable. VA must written statements, evidence, or conversation in which the beneficiary, receive the beneficiary’s certification, information. Except as otherwise representative, or fiduciary provides the including any requested information, no provided, after a claimant or his or her statement, the VA employee documents later than 60 days after the date of VA’s fiduciary or authorized representative in the beneficiary’s VA record all of the request. provides VA with a written statement, following elements: (b) If VA does not receive the evidence, or information regarding (A) The specific statement provided; certification in 60 days. If VA has not entitlement to benefits, VA will take (B) The date such statement was received the requested certification 60 appropriate action in response to the provided; days after the date of VA’s request, VA statement, evidence, or information. (C) The identity of the provider; will assume that the fact(s) about which (b) Beneficiaries—(1) VA policy (D) The steps taken to verify the the certification was requested ceased to concerning submission of statements, identity of the provider as the exist as of the end of the month in evidence, or information by a beneficiary or his or her fiduciary or which VA received the last evidence of beneficiary. It is VA’s general policy to authorized representative; and record establishing or confirming the allow submission of statements, (E) The employee’s statement that he fact(s). evidence, or information by regular or she informed the provider that VA (c) Additional 60 days provided. If VA mail, hand delivery, email, facsimile will use the statement to determine has not received the requested (fax) machine, oral statements, or other entitlement and to calculate benefit certification 60 days after the date of electronic means that the Secretary amounts. VA’s request, VA will send written prescribes, unless a VA regulation, (c) Exceptions to paragraph (b)(4) notice to the beneficiary that VA application, or directive expressly notice and documentation proposes to reduce or discontinue the requires a different method of requirements. Paragraph (b)(4) of this benefits and will allow the beneficiary submission. This policy only applies to section does not apply to oral 60 days in which to provide VA with submissions regarding entitlement to statements: the required certification. The notice benefits already awarded. (1) Made at a VA hearing; or must include the effective date of the (2) Content of submissions. Paragraph (2) Recorded by VA personnel in proposed reduction or discontinuance. (b)(1) of this section concerns the reports of medical treatment or If the beneficiary does not provide the method by which written statements, examination. required certification after the evidence, or information is filed with (Authority: 38 U.S.C. 501(a)) additional 60 days, VA will reduce or VA. Requirements regarding the content discontinue the benefit, according to the of the submission must still be met. § 5.131 Applications, claims, and appropriate effective date provisions in (3) VA action following submission of exchange of evidence with Social Security effect on the date the eligibility factor(s) statements, evidence, or information. Administration—death benefits. is considered to have ceased to exist. Except as otherwise provided, after a (a) Dual-purpose Social Security (d) VA action when the evidence is beneficiary or his or her fiduciary or Administration and VA applications. received. When the certification authorized representative provides VA VA considers a claim for death benefits requested is provided, VA will adjust with a statement, evidence, or submitted to the Social Security the benefits, if necessary, according to information regarding entitlement to Administration (SSA) on an application the information provided and the other benefits, VA will take appropriate action jointly prescribed by VA and the SSA to evidence of record. in response to the statement, evidence, be a claim for dependency and (Authority: 38 U.S.C. 501(a), 1315, 1506) or information. indemnity compensation, death (4) Notice and documentation of oral pension, and accrued benefits. VA will §§ 5.105—5.129 [Reserved] statements. Except as provided in consider the claim to have been paragraph (c) of this section, VA will received by VA on the same date that General Evidence Requirements not take action based on oral statements the SSA received it. § 5.130 Submission of statements, unless, during the conversation in (b) Evidence submitted to the Social evidence, or information affecting which the beneficiary, representative, or Security Administration. VA considers entitlement to benefits. fiduciary provides the statement, the VA evidence submitted to the SSA in (a) Claimants—(1) VA policy employee receiving the information conjunction with a claim under concerning submission of written does the following: paragraph (a) of this section to have

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been received by VA on the same date (4) Affidavits prepared in the (c) Limitations on use of information. that the SSA received it. Republic of the Philippines that are Unless permitted under the Right to (c) Social Security Administration certified by a VA representative who is Financial Privacy Act, 12 U.S.C. 3401, et request for copies or certifications of located there and who has the authority seq., VA may not: evidence submitted to VA. At the SSA’s to administer oaths; and (1) Use information obtained from a request, VA will furnish copies or (5) Copies of public, church, or other financial institution for any purpose certifications of evidence that a claimant religious-context records from any other than the administration of benefits has filed with VA in support of a claim foreign country used to establish birth, programs; or for VA death benefits, provided that the adoption, marriage, annulment, divorce, (2) Share this information with any release of this evidence fully complies or death, provided that the documents other person, group, or government with all requirements in any applicable have the signature and seal of the entity. custodian of these records and there is laws and regulations that protect the (Authority: 12 U.S.C. 3401, 3405, 3412, 3413; confidentiality of VA records. no contrary evidence of record that 38 U.S.C. 501(a), 5319, 5711) tends to cast doubt on the correctness of (Authority: 38 U.S.C. 501(a), 5101(b)(1), § 5.134 VA acceptance of signature by 5105) the documents. (d) Authentication of foreign mark or thumbprint. § 5.132 Claims, statements, evidence, or documents required. Foreign documents VA will accept a signature by mark or information filed abroad; authentication of not listed in paragraph (c) of this section thumbprint if it is: documents from foreign countries. must be authenticated by: (a) Witnessed by two people who sign (a) Claims and evidence submitted (1) An officer of the Department of their names and give their addresses; abroad. A claim, or a statement, State authorized to authenticate (b) Witnessed by an accredited agent, information, or evidence in support of a documents; or attorney, or service organization claim, may be submitted to a (2) The Consul of a friendly representative; Department of State representative in a government whose signature and seal is (c) Certified by a notary public or any foreign country. Any claim, statement, verified by the Department of State. other person having the authority to information, or evidence submitted in a (e) Photocopies of foreign documents. administer oaths for general purposes; foreign country will be considered VA will accept photocopies of any of or received by VA on the same date that it the foreign documents described in (d) Certified by a VA employee who was received by the Department of State paragraphs (c) and (d) of this section if has been delegated authority by the representative in that foreign country. VA determines that the photocopies Secretary under 38 CFR 2.3. satisfy the requirements of § 5.181. Diplomatic and consular officers of the (Authority: 38 U.S.C. 5101) Department of State are authorized to (Authority: 38 U.S.C. 501(a)) act as agents of VA. § 5.135 Statements certified or under oath (b) Authentication of foreign § 5.133 Information VA may request from or affirmation. financial institutions. documents. Foreign documents listed in (a) Oral testimony. All oral testimony (a) Names and addresses. If VA needs paragraph (c) of this section do not presented at a hearing by a claimant, or to verify a person’s correct name or require authentication. All other foreign by a witness on his or her behalf, will address, VA may request this documents must be authenticated as be under oath or affirmation. See information from a financial institution, specified in paragraph (d) of this § 5.82(d)(2). section. such as a bank, savings and loan (b) Documentary evidence or written (1) Foreign documents means association, trust company, or credit assertion of fact. Any documentary documents that are signed under oath or union. In its request, VA must certify evidence or written assertion of fact affirmation in the presence of an official that the name or address is necessary in filed by the claimant or on his or her in a foreign country. Examples of order to properly administer its benefit behalf for purpose of establishing a foreign documents include affidavits, programs and that VA cannot locate the claim must be certified or under oath or marriage certificates, and birth information by a reasonable search of its affirmation. However, VA may decide certificates that have been created, records. that certification or oath or affirmation (b) Financial information. VA may ask executed, or validated by a foreign is not necessary to establish the a financial institution to provide government. reliability of a document and therefore financial records of a current or former (2) Authentication means that an not required. Documentary evidence claimant or a current or former official listed in paragraph (d) of this includes, but is not limited to, records, beneficiary if such evidence is necessary section verifies that the foreign examination reports, and transcripts to determine whether such person has document, including each signature, that VA receives from State, county, or failed to comply with a statute, stamp, and seal appearing on it, is municipal governments, recognized regulation, rule, or order. VA must genuine and has not been altered. private institutions, or contract request the financial records through a (c) Authentication of certain foreign hospitals. documents not required. VA does not subpoena. A ‘‘subpoena’’ is a legal require authentication of the following document commanding a person or (Authority: 38 U.S.C. 501(a)) types of foreign documents: organization to provide specified Cross Reference: § 5.1, for the (1) Documents approved by the evidence to the issuer of the subpoena. definition of ‘‘certified statement’’ and Deputy Minister of Veterans Affairs for See § 2.2 of this chapter for information § 5.1 for the definition of ‘‘State’’. the Department of Veterans Affairs, on VA’s authority to issue subpoenas. Ottawa, Canada; Before the date VA serves a subpoena on § 5.136 Abandoned claims. (2) Documents bearing the signature a financial institution, VA must serve or Except as provided in § 5.104(a), and seal of an officer authorized to mail a copy of the subpoena, a written Certifying continuing eligibility to administer oaths for general purposes; explanation of its purpose, and the receive benefits, if a claimant does not (3) Documents signed before a VA procedure for challenging the subpoena furnish evidence in connection with a employee authorized to administer to the claimant or beneficiary. See 12 claim within 1 year after the date VA oaths under § 2.3 of this chapter; U.S.C. 3405. requests it, the claim will be considered

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abandoned. Once a claim is abandoned, malnutrition, and unsanitary (c) Evidence from fellow the claimant must file a new claim for conditions. In the absence of evidence servicemembers. A claimant may use VA to take further action. If the claimant to the contrary, VA will consider that evidence from a fellow servicemember subsequently submits evidence that each individual member of a particular to support an allegation of incurrence or establishes a right to benefits, the group of detainees or internees aggravation of an injury or disease effective date will not be earlier than the experienced the same circumstances as during detention or internment. In date of receipt of the new claim. those the group experienced generally. evaluating evidence from a fellow (Authority: 38 U.S.C. 501(a), 5103) (iii) Hostile force means any entity servicemember that relates to a former other than an enemy or foreign POW’s claim for disability Cross Reference: § 5.150 General government or the agents of either compensation, VA will take into effective dates of awards or increased whose acts further or enhance anti- account the fellow servicemember’s benefits. American military, political, or statements, including, but not limited §§ 5.137–5.139 [Reserved] economic objectives or views, or to, statements regarding any of the attempt to embarrass the U.S. following factors: Evidence Requirements for Former (2) Reason for detention or (1) The former POW’s physical Prisoners of War (POWs) internment. For purposes of condition before capture; determining former POW status, VA (2) The circumstances during the § 5.140 Determining former prisoner of war former POW’s detention or internment; status. will not consider the reason a veteran was detained or interned, except where (3) The changes in the former POW’s (a) Procedure for VA determinations allegations exist that the veteran physical condition following release of former prisoner of war (POW) violated the laws of a foreign from detention or internment; or status—(1) Service department findings. government. A period of detention or (4) The existence of signs and VA will accept the appropriate service internment by a foreign government for symptoms consistent with a claimed department’s finding that a veteran was an alleged violation of its laws cannot disability following the former POW’s a POW during a period of war unless a be used to establish former POW status, release from detention or internment. reasonable basis exists for questioning (d) Absence of clinical records. If a unless the charges were a sham that finding, in which case, VA will former POW claims entitlement to intended to make it appear that the make its own determination of former disability compensation, VA will not detention or internment was proper. POW status. (3) Line of duty. VA will consider that consider the lack of history or findings (2) VA determinations. In addition to a forcible detention or internment was in clinical records made upon the the basis stated under paragraph (a)(1) in the line of duty unless the evidence claimant’s return to U.S. control as of this section, VA will make its own of record discloses that it was the determinative. determination of former POW status if: (e) Disabilities first reported after proximate result of the veteran’s willful (i) The service department determined discharge. If any disability is first misconduct. See §§ 5.660 and 5.661. that the veteran was not a POW; reported after discharge, especially if (ii) The service department did not (Authority: 38 U.S.C. 101(32)) the claimed disability is poorly defined make a determination regarding POW Cross Reference: § 5.1, for the and not obviously of intercurrent origin, status; or definition of ‘‘agency of original VA will determine whether the claimed (iii) The detention or internment of jurisdiction’’, and § 5.1 for the definition disability is etiologically related to the the veteran occurred during a period of ‘‘willful misconduct’’. § 5.611, POW experience. VA will consider the other than a period of war. Philippine service: Determination of circumstances of the claimant’s (3) Role of the Director of the periods of active military service, detention or internment, the duration of Compensation Service. The Director of including, but not limited to, periods of detention or internment, and the the Compensation Service must approve active military service while in prisoner pertinent medical principles. all agency of original jurisdiction (AOJ) of war status. (f) Examination requirement. If determinations of former POW status service connection for disabilities except when the AOJ accepted service § 5.141 Medical evidence for former claimed by a former POW cannot be department findings under paragraph prisoner of war disability compensation established otherwise, VA will provide (a)(1) of this section. claims. the claimant a complete medical (b) Criteria for VA determinations of (a) Injuries and other conditions of a examination. former POW status—(1) Definition of former prisoner of war (POW). As soon Cross References: § 5.140(b), ‘‘former POW’’. Former POW means a as sufficient evidence for a rating is concerning definition of ‘‘former POW’’; veteran who, while serving in the active available, VA will rate injuries or other § 5.264(b) and (c), concerning diseases military service, was forcibly detained conditions of a former POW that VA presumes are service connected in or interned in the line of duty by an obviously were incurred in service, former prisoners of war. entity described in paragraph (b)(1)(i) or without awaiting receipt of the (Authority: 38 U.S.C. 1154) (ii) of this section: claimant’s service treatment and other (i) An enemy, the agents of an enemy, service records. §§ 5.142–5.149 [Reserved] or a hostile force, during a period of (b) Statements by a former POW. VA General Effective Dates for Awards war; or will presume as true a statement by a (ii) A foreign government or its agents, former POW that an injury or disease § 5.150 General effective dates of awards or a hostile force, under circumstances was incurred or aggravated during, or or increased benefits. comparable to the circumstances under immediately before, detention or (a) General rule. Except as otherwise which a veteran generally has been internment if the statement is consistent provided, the effective date of an award forcibly detained or interned by enemy with the circumstances, conditions, or of pension, disability compensation, governments during periods of war. hardships of such service. This dependency and indemnity Such circumstances include, but are not presumption may be rebutted by clear compensation, or monetary allowance limited to, physical hardships or abuse, and convincing evidence to the under 38 U.S.C. chapter 18 for a person psychological hardships or abuse, contrary. See § 5.250(b)(2). who is a child of a Vietnam or Korea

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veteran, based on an original claim, a assume that entitlement arose before the (c) Location of other part 5 effective- claim reopened after final denial, or a date of receipt of the claim unless the date provisions for awards or increased claim for increase, will be the later of: evidence shows that entitlement arose benefits. The following table is to assist (1) The date of receipt of the claim for after that date. the reader in locating various other the benefit; or effective-date provisions for awards or (2) The date entitlement arose. For (b) Retroactive increase. VA will not award a retroactive increase or an increased benefits in this part. It is purposes of this part, date entitlement provided for informational use only. arose means the date that the claimant additional benefit after discontinuing This table does not confer any first met the requirements for the benefit basic entitlement to a benefit, such as by substantive rights. as shown by the evidence. VA will severance of service connection.

Effective date provision Part 5 location

SUBPART B—SERVICE REQUIREMENTS FOR VETERANS

Individuals and groups designated by the Secretary of Defense as having performed active military service ...... § 5.27(c). Effect of discharge upgrades by Armed Forces boards for the correction of military records (10 U.S.C. 1552) on eligibility § 5.34(d). for VA benefits. Effect of discharge upgrades by Armed Forces discharge review boards (10 U.S.C. 1553) on eligibility for VA benefits ...... § 5.35(e).

SUBPART C—ADJUDICATIVE PROCESS, GENERAL

Filing a claim for death benefits ...... § 5.52(c). Claims based on new and material evidence ...... § 5.55(e). Requirement to provide Social Security numbers ...... § 5.101(d). Abandoned claims ...... § 5.136. Effective dates based on change of law or VA issue ...... § 5.152(c). Effective date of awards based on receipt of evidence prior to end of appeal period or before a final decision ...... § 5.153. Revision of agency of original jurisdiction decisions based on clear and unmistakable error ...... § 5.162(f). Service department records as new and material evidence ...... § 5.165(c), (d). Effective dates for revision of decisions based on difference of opinion ...... § 5.166.

SUBPART D—DEPENDENTS AND SURVIVORS

Effective date of awards of benefits for a dependent ...... § 5.183. Effective date of resumption of benefits to a surviving spouse due to termination of a remarriage ...... § 5.205. Effective date of award of pension or dependency and indemnity compensation to or for a child born after the veteran’s § 5.230. death. Effective date of an award of benefits due to termination of a child’s marriage ...... § 5.235(b).

SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION

Effective dates—award of disability compensation ...... § 5.311. Effective dates—increased disability compensation ...... § 5.312(b). Effective dates—discontinuance of compensation for a total disability rating based on individual unemployability ...... § 5.313. Effective dates—discontinuance of additional disability compensation based on parental dependency ...... § 5.314. Effective dates—additional disability compensation based on decrease in the net worth of dependent parents ...... § 5.315(b). Effective dates—special monthly compensation under §§ 5.332 and 5.333 ...... § 5.335. Effective dates—additional compensation for regular aid and attendance payable for a veteran’s spouse under § 5.321 ...... § 5.336(a). Tuberculosis and compensation under 38 U.S.C. 1114(q) and 1156 ...... § 5.346(b)(1)(ii). Effective dates of awards of benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, med- § 5.351. ical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program.

SUBPART F—NONSERVICE–CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS

Disability requirements for Improved Disability Pension ...... § 5.380. Effective dates of awards of Improved Disability Pension ...... § 5.383. Effective dates of awards of special monthly pension ...... § 5.392. Automatic adjustment of maximum annual pension rates ...... § 5.401(a). Effective dates of changes in Improved Pension benefits based on changes in net worth ...... § 5.415(b). Effective dates of changes to annual Improved Pension payment amounts due to a change in income ...... § 5.422. Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on in- § 5.424(b), (c). come. Effective dates of Improved Death Pension ...... § 5.431. Effective dates of Improved Pension elections ...... § 5.463. Annual income limits and rates for Old-Law Pension and Section 306 Pension ...... § 5.471(b). Time limit to establish continuing entitlement to Old-Law Pension or Section 306 Pension ...... § 5.478(b).

SUBPART G—DEPENDENCY AND INDEMNITY COMPENSATION, ACCRUED BENEFITS, AND SPECIAL RULES APPLICABLE UPON DEATH OF A BENEFICIARY

Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a schoolchild § 5.524. Awards of dependency and indemnity compensation when not all dependents apply ...... § 5.525. When VA counts a parent’s income for parent’s dependency and indemnity compensation ...... § 5.534. A parent’s dependency and indemnity compensation rates ...... § 5.536(b).

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Effective date provision Part 5 location

Effective date of an award or an increased rate based on decreased income: parents’ dependency and indemnity com- § 5.542. pensation.

SUBPART H—SPECIAL AND ANCILLARY BENEFITS FOR VETERANS, DEPENDENTS, AND SURVIVORS

Medal of Honor pension ...... § 5.580(b). Awards of benefits based on special acts or private laws ...... § 5.581(d). Minimum income annuity and gratuitous annuity ...... § 5.587(b). Special allowance payable under section 156 of Public Law 97–377 ...... § 5.588(b), (f). Monetary allowance for a Vietnam veteran or a veteran with covered service in Korea whose child was born with spina § 5.589(e). bifida. Monetary allowance for a female Vietnam veteran’s child with certain birth defects ...... § 5.590(i). Effective dates of awards for a disabled child of a Vietnam or Korea veteran ...... § 5.591(a). Clothing allowance ...... § 5.606(e).

SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS

Payment at the full-dollar rate of disability compensation or dependency and indemnity compensation at the full dollar rate § 5.613(d). for certain Filipino veterans or their survivors residing in the U.S. Effective dates of benefits at the full-dollar rate for a Filipino veteran and his or her survivor ...... § 5.614.

SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS

Revocation of forfeiture ...... § 5.680(c)(2). Effective dates: Forfeiture ...... § 5.681. Presidential pardon for offenses causing forfeiture ...... § 5.682(b).

SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS

Beginning date for certain benefit payments ...... § 5.693(b). Payments to or for a child pursuing a course of instruction at an approved educational institution ...... § 5.696(b)–(f). Eligibility verification reports ...... § 5.708(f), (g). Payment to dependents due to the disappearance of a veteran for 90 days or more ...... § 5.711(b)(2), (c)(2), (d)(1). Resumption of special monthly compensation based on the need for regular aid and attendance after a veteran is on tem- § 5.721. porary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. Resumption of Improved Pension and Improved Pension based on the need for regular aid and attendance after a veteran § 5.725. is on temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. Resumption of Section 306 Pension and Section 306 Pension based on the need for regular aid and attendance during a § 5.729. veteran’s temporary absence from hospital, domiciliary, or nursing home care or after released from such care. Resumption of Old-Law Pension and Old-Law Pension based on the need for regular aid and attendance after a veteran is § 5.730. on temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. General effective dates for awarding, reducing, or discontinuing VA benefits because of an election ...... § 5.743(a). Entitlement to concurrent receipt of military retired pay and VA disability compensation ...... § 5.745(e). Prohibition against receipt of active military service pay and VA benefits for the same period ...... § 5.746(d)(1). Procedures for elections between VA benefits and compensation under the Federal Employees’ Compensation Act ...... § 5.752(b).

SUBPART M—APPORTIONMENTS TO DEPENDENTS AND PAYMENTS TO FIDUCIARIES AND INCARCERATED BENEFICIARIES

Effective date of apportionment grant or increase ...... § 5.782. Determinations of incompetency and competency ...... § 5.790(f). General fiduciary payments ...... § 5.791(e). Institutional awards ...... § 5.792(e). Limitation on payments for a child ...... § 5.793. Apportionment when a primary beneficiary is incarcerated ...... § 5.814(e). Resumption of disability compensation or dependency and indemnity compensation upon a beneficiary’s release from in- § 5.815. carceration. Resumption of pension upon a beneficiary’s release from incarceration ...... § 5.816(a), (b).

(Authority: 38 U.S.C. 501(a), 5110(a)) Department of State representative otherwise interferes with the normal (§ 5.132(a)); receipt of correspondence in one or § 5.151 Date of receipt. (3) Provisions for applications, claims, more VA regional office, it may (a) General rule. The date of receipt of and exchange of evidence with the establish an exception to paragraph (a) a document, claim, information, or Social Security Administration of this section for the office or offices evidence is the date on which VA (§ 5.131(a) or (b)); or involved by publishing notice of the received it, except as provided in the (4) Provisions of the Department of exception in the Federal Register. The following: Defense relating to initial claims filed at delay or other interference must affect (1) Paragraph (b) of this section; or before separation. the receipt of documents, claims, (b) Exception to date-of-receipt rule. If information, or evidence to an extent (2) Provisions for claims or evidence VA determines that a natural or man- that, if not addressed, would adversely received in a foreign country by a made event causes extended delay or affect claimants through no fault of their

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own. If VA establishes an exception, it (Authority: 38 U.S.C. 1822, 5110(g)) constituted appellate authorities or may use factors such as the postmark or (d) Reduction or discontinuance of except as provided in §§ 5.161,5.162, the date the claimant signed the benefits. If VA reduces or discontinues and 5.163. correspondence as the date of its pension, disability compensation, (b) Particular issues. A Veterans receipt. dependency and indemnity Service Center’s decision on any one of (Authority: 38 U.S.C. 501(a), 512(a), 5110) compensation, or a monetary allowance the issues listed below is binding on the under 38 U.S.C. chapter 18 for a person VA Insurance Center, and vice versa, § 5.152 Effective dates based on change of who is a child of a Vietnam or Korea unless the decision was based on clear law or VA issue. veteran pursuant to a change in law or and unmistakable error. Absent clear (a) Liberalizing law or VA issue. a VA issue, or because of a change in and unmistakable error, neither a Paragraphs (b) and (c) of this section interpretation of a law or VA issue, the Veterans Service Center nor the VA apply when pension, disability following provisions apply. Insurance Center may change a decision compensation, dependency and (1) Notice. VA will send written of the other if doing so would involve indemnity compensation, or a monetary notice of the proposed action to the applying the same criteria and be based allowance under 38 U.S.C. chapter 18 beneficiary and furnish detailed reasons on the same facts. The issues to which for a person who is a child of a Vietnam for the proposed reduction or this paragraph (b) applies are: or Korea veteran, is awarded or discontinuance. The beneficiary will (1) Line of duty; increased pursuant to a liberalizing law have 60 days after the date of the notice (2) Character of discharge; or a liberalizing VA issue approved by to present additional evidence. (3) Relationship; the Secretary or at the Secretary’s (2) Effective date of award. If VA (4) Dependency; direction. The provisions of paragraphs receives no additional evidence within (5) Domestic relations issues such as (b) and (c) of this section apply to the 60-day notice period in paragraph marriage, divorce, adoption, and child original claims, reopened claims, and (d)(1) of this section, or if the evidence custody and support; claims for increase. received does not demonstrate that the (6) Homicide; and (b) Eligibility for retroactive benefits. proposed action should not be taken, (7) Findings of fact of death or For a claimant to be eligible for VA will pay a reduced rate or presumption of death. retroactive benefits based on the discontinue the benefit effective the first (Authority: 38 U.S.C. 501(a)) liberalizing law or VA issue, the day of the month after the end of the Cross Reference: § 5.1, for the evidence must show that: notice period. (1) The claimant met all eligibility definition of ‘‘agency of original criteria for the liberalized benefit on the (Authority: 38 U.S.C. 5112(b)(6)) jurisdiction’’. effective date of the liberalizing law or § 5.153 Effective date of awards based on § 5.161 Review of benefit claims decisions. VA issue; and receipt of evidence prior to end of appeal (a) Timely Notice of Disagreement. A (2) Such eligibility existed period or before a final Board decision. claimant who has filed a timely Notice continuously from that date to the date VA will consider information or of Disagreement (NOD) with a decision of the administrative determination of evidence received before the expiration of an agency of original jurisdiction entitlement or of the claimant’s request of the period for initiating or perfecting (AOJ) on a benefit claim has a right for review. an appeal to the Board of Veterans’ (c) Effective date of award. (1) under this section to a review of that Appeals (the Board), or before the Board General. The effective date of an award decision. The review will be conducted renders a decision (if a timely appeal or increase based on a liberalizing law by a Veterans Service Center Manager or was filed), without regard to whether or VA issue will be the later of: Decision Review Officer, at VA’s the information or evidence is ‘‘new and (i) The effective date of the discretion. A person who did not material’’. The effective date of an liberalizing law or VA issue; or participate in the decision will conduct (ii) The date entitlement arose. award based on such evidence will be the review. Only a decision that has not (2) Review no later than 1 year after as though the former decision had not yet become final (by appellate decision effective date. If VA reviews a claim on been rendered. or failure to timely appeal) may be its initiative, or receives a claimant’s Cross Reference: § 5.150, General reviewed. A review under this section request to review a claim, no later than effective dates of awards or increased will encompass only decisions with 1 year after the effective date of the law benefits. For information on how to which the claimant has expressed or VA issue, then VA may authorize appeal to the Board, see 38 CFR parts 19 disagreement in the NOD. The reviewer benefits from that effective date. and 20. will consider all evidence of record and (3) Review on VA initiative more than (Authority: 38 U.S.C. 501(a)) applicable law, and will give the prior 1 year after effective date. If VA reviews decision no deference. a claim on its initiative more than 1 year §§ 5.154–5.159 [Reserved] (b) Time to request a review. Upon after the effective date of the law or VA General Rules on Revision of Decisions receipt of an NOD, VA will send written issue, it may authorize benefits for a notice to the claimant of his or her right period of 1 year before the date of § 5.160 Binding effect of VA decisions. to a review under this section, unless administrative determination of (a) General rule. A decision of a duly the NOD already includes a request for entitlement. constituted rating agency or other review of the decision under this (4) Review at the claimant’s request agency of original jurisdiction will be section. To obtain such a review, the that VA received more than 1 year after binding on all field offices of the claimant must request it no later than 60 effective date. If VA reviews a claim at Department of Veterans Affairs as to days after the date VA mails the notice. the claimant’s request that VA received conclusions based on the evidence of This 60-day limit may not be extended. more than 1 year after the effective date record at the time VA issues notice of If the claimant fails to request a review of the law or VA issue, VA may the decision in accordance with 38 under this section no later than 60 days authorize benefits for a period of 1 year U.S.C. 5104. A binding agency decision after the date VA send the notice, VA prior to the date of receipt of such will not be subject to revision on the will proceed with the traditional request. same factual basis except by duly appellate process by issuing a Statement

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of the Case (SOC). A claimant may not (3) Where the evidence establishes Cross Reference: § 5.1, for the have more than one review under this that service connection was clearly definition of ‘‘agency of original section of the same decision. illegal; or jurisdiction’’. (c) Action by reviewer. The reviewer (4) As otherwise provided in this part. may conduct whatever development he (b) Review for clear and unmistakable § 5.163 Revision of decisions based on or she considers necessary to resolve error (CUE). At any time after the AOJ difference of opinion. any disagreements in the NOD, makes a decision, the claimant may If the Veterans Service Center consistent with applicable law. This request, or VA may initiate, AOJ review Manager (VSCM) within an agency of may include an attempt to obtain of the decision to determine if there was original jurisdiction (AOJ) believes that additional evidence or the holding of an CUE in the decision. The AOJ will base revision of a previous AOJ decision is informal conference with the claimant. the review only on the evidence of warranted, the VSCM will recommend In an informal conference, the reviewer record and the law in effect when the the revision to the Director of the will explain fully the issues and suggest AOJ made the decision. If the review Compensation Service of the Veterans the submission of evidence the claimant establishes CUE, the AOJ will reverse or Benefits Administration for a binding may have overlooked that would tend to revise the decision. determination. This section only applies prove the claim. Upon the request of the (c) Binding decisions and final to the revision of an AOJ decision that claimant, the reviewer will conduct a decisions. (1) To be reviewable under (b) is not final and has not been the subject hearing under § 5.82. of this section, the decision must be of a substantive appeal. The revision (d) Decision of reviewer. The reviewer binding as defined in § 5.160. must be based on the VSCM’s difference may grant a benefit sought in the claim (2) To be reviewable under paragraph of opinion with the previous decision, notwithstanding § 5.163, but he or she (b) of this section, the decision may, but and must lead to a decision more may not revise the decision in a manner need not, be final as defined in § 5.1. favorable to the claimant than the that is less advantageous to the claimant (3) VA may reverse or revise a final previous decision. decision only if there was CUE in that than the decision under review, except (Authority: 38 U.S.C. 501(a)) as provided in paragraph (e) of this decision. section. A review decision made under (d) What constitutes CUE. CUE is a Cross Reference: § 5.1, for the this section will include a summary of very specific and rare kind of error. It definition of ‘‘agency of original the evidence and of the reasons for the is the kind of error of fact or of law that jurisdiction’’. when called to the attention of later decision, a citation to pertinent laws, § 5.164 Standard of proof for reducing or and a discussion of how those laws reviewers, compels the conclusion that the result would have been manifestly discontinuing a benefit payment or for affect the decision. severing service connection based on a (e) Reversal or revision of a prior different if the error did not exist. The beneficiary’s act of commission or decision. Notwithstanding any other conclusion must be something about omission. which reasonable minds cannot differ. provisions of this section, the reviewer (a) General rule. VA will reduce or Generally, either the correct facts, as may reverse or revise the AOJ decision discontinue a benefit, or sever service they were known at the time, were not being reviewed, or any prior decision connection, if a preponderance of the before the AOJ, or the statutory and that has become final due to failure to evidence shows that it resulted in whole regulatory provisions which existed at timely appeal, on the grounds of clear or in part from an award based on an act the time were incorrectly applied. and unmistakable error, even if of commission or omission by the disadvantageous to the claimant. See (e) Reduction or discontinuance based on administrative error or error in beneficiary or an act of commission or § 5.162. omission done with the beneficiary’s (f) Appeal rights. Review under this judgment. VA will reduce or knowledge. The review will be based on section does not limit the appeal rights discontinue a benefit resulting from an the law in effect when the agency of of a claimant. Unless a claimant award based solely on a VA original jurisdiction (AOJ) made the withdraws his or her NOD as a result of administrative error or error in decision and on all evidence currently this review process, VA will proceed judgment only if it was CUE. of record, regardless of whether it was with the traditional appellate process by Administrative errors or errors in of record at that time. issuing an SOC. judgment include, but are not limited to: (b) Examples of acts of commission or (g) Applicability. This section applies (1) Overlooking facts; omission. Acts of commission or to all claims in which an NOD is filed (2) Clerical errors; or omission include, but are not limited to: after June 1, 2001. (3) Failure to follow or properly apply VA regulations or statutes. (1) An erroneous statement by a (Authority: 38 U.S.C. 5109A, 7105(d)) (f) Effective date of reversal or veteran regarding income; Cross Reference: § 5.1, for the revision. For purpose of granting (2) Failure to notify VA of a changed definition of ‘‘agency of original benefits, a new decision that constitutes circumstance (such as death or marriage jurisdiction’’. a reversal or revision of a prior decision of a dependent); on the grounds of CUE has the same (3) Failure to notify VA of an increase § 5.162 Revision of agency of original in income; or jurisdiction decisions based on clear and effect as if the new decision had been unmistakable error. made on the date of the prior decision. (4) Obtaining a benefit by fraud. (a) Scope. The provisions of this In such cases, benefits are payable (Authority: 38 U.S.C. 501(a), 5112(b)(9)) section apply to decisions of an agency effective on the date from which benefits would have been payable if the Cross Reference: § 5.1, for the of original jurisdiction (AOJ) except: definition of ‘‘agency of original (1) Where an award was based on an corrected decision had been made on the date of the reversed decision. See jurisdiction’’, and § 5.1, for the act of commission or omission by the definition of ‘‘fraud.’’ payee, or with his or her knowledge, see § 5.167(c) for effective date of reduction §§ 5.164 and 5.175; or discontinuance based on VA § 5.165 Service department records as (2) Where there is a change in law or administrative error or error in new and material evidence. VA issue, or a change in interpretation judgment. (a) Reconsideration. Notwithstanding of law or VA issue, see § 5.152; (Authority: 38 U.S.C. 5109A) any other section in this part, at any

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time after VA issues a decision on a § 5.167 Effective dates for reducing or (c) Veteran reenters active military claim, if VA receives or associates with discontinuing a benefit payment, or for service. For purposes of §§ 5.171 and the claims file relevant official service severing service connection, based on 5.172, a rating is not continuous if department records that existed and had omission or commission, or based on benefits based on that rating are administrative error or error in judgment. not been associated with the claims file discontinued or interrupted because the when VA first decided the claim, VA (a) Scope. This section applies when veteran reentered active military will reconsider the claim, determining the proper effective date to service. notwithstanding § 5.55. Such records assign for the reduction or Cross Reference: § 5.746, Prohibition include, but are not limited to: discontinuance of payment of a benefit, against receipt of active military service or the severance of service connection, (1) Service records that are related to pay and VA benefits for the same based on error. This section does not a claimed in-service event, injury, or period. apply to a payment amount not disease, regardless of whether such (d) Protected rating during nonreceipt authorized by a rating decision, such as records mention the veteran by name, as of disability compensation. A rating that a payment of an incorrect amount or a long as the other requirements of this is continuous for a period listed in duplicative payment. Such amounts are section are met; paragraph (a) of this section is protected overpayments, subject to recoupment. even if the beneficiary did not receive (2) Additional service records (b) Effective date of reduction or VA disability compensation based on forwarded by the Department of Defense discontinuance of a payment, or of that rating. This includes a beneficiary or the service department to VA any severance of service connection, based whose payments were adjusted by time after VA’s original request for on beneficiary’s act of commission or deduction, recoupment, apportionment, service records; and omission. If VA based an award of a or reduction in disability compensation (3) Declassified records that could not benefit, including service connection, due to incarceration, or because the have been obtained because the records on an act of commission or omission by beneficiary elected to receive retirement were classified when VA decided the the beneficiary, or with the beneficiary’s pay. claim. knowledge, including, but not limited (e) Retroactive increase or award. A (b) Unobtainable records. Paragraph to, an act based on fraud, VA will pay retroactive increase in benefits or award (a) of this section does not apply to a reduced rate, discontinue a benefit, or of service connection, including one records that VA could not have obtained sever service connection, effective the made under § 5.162, which results in a when it decided the claim because they latest of the following dates: did not exist, or because the claimant (1) The effective date of the award; veteran being rated or awarded service failed to provide sufficient information (2) The day preceding the act of connection for a period of 5, 10, or 20 for VA to identify and obtain the records commission or omission; or years will be protected under §§ 5.171, from the service department, the Joint (3) The date entitlement to the benefit 5.175, and 5.172, respectively. This Services Records Research Center, or ceased. paragraph (e) applies to any qualifying any other official source. (c) Effective date of reduction or period for protection, even if it includes a period based on a retroactive award. (c) Effective date. An award made discontinuance of a payment, or of based all or in part on the records severance of service connection, based (Authority: 38 U.S.C. 110, 501(a), 1159) identified by paragraph (a) of this on VA administrative error or error in judgment. Except as provided in § 5.171 Protection of 5-year stabilized section is effective on the date ratings. entitlement arose or the date VA § 5.177(d) and (f), if an award was based (a) Purpose. VA will adjudicate cases received the previously decided claim, solely on VA administrative error or affected by change of medical findings whichever is later, or such other date as error in judgment, VA will pay a or diagnosis to produce the greatest may be authorized by the provisions of reduced rate or discontinue a benefit, or degree of stability of disability ratings this part applicable to the previously sever service connection,effective the consistent with the laws and regulations decided claim. first day of the month after the month for which VA last paid the benefit. governing disability compensation and (d) Retroactive disability rating. A pension. (Authority: 38 U.S.C. 5112(b)(9) and (10)) retroactive rating of a disability (b) Stabilized rating. For purposes of subsequently service connected based §§ 5.168–5.169 [Reserved] this section, if VA has rated a disability on new evidence from the service at or above a specific level for 5 years General Rules on Protection or department must be supported or more, then VA will consider it to be Reduction of Existing Ratings adequately by medical evidence. Where stabilized at that level. such records clearly support the § 5.170 Calculation of 5-year, 10-year, and (c) Material improvement. VA will not assignment of a specific rating over a 20-year periods to qualify for protection. reduce a stabilized rating unless there is part or the entire period of time (a) Scope. VA will apply the following evidence of material improvement. VA involved, a retroactive rating will be principles in determining whether may reduce a stabilized rating if: assigned accordingly, except as it may service connection has been ‘‘in effect’’ (1) An examination shows material be affected by the filing date of the for the 10-year period in § 5.175 and improvement in the disability under the original claim. whether a rating has been ‘‘continuous’’ ordinary conditions of life, as explained (Authority: 38 U.S.C. 501(a)) for the 5-year period in § 5.171 or the in paragraph (d) of this section; and (2) The evidence shows that it is § 5.166 Effective dates for revision of 20-year period in § 5.172. decisions based on difference of opinion. (b) A qualifying period for protection reasonably certain that the material of service connection or of a disability improvement will be maintained under If VA revises a decision based on rating begins on the date the award or the ordinary conditions of life. difference of opinion under § 5.163,,the grant of benefits is effective and ends, (d) How VA determines whether there effective date of the revision is the date after due process has been provided, on has been material improvement. VA the benefits would have been paid if the the date that service connection would will consider the following to determine previous decision had been favorable. be severed or the rating would be whether a disability has materially (Authority: 38 U.S.C. 501(a), 5110) reduced. improved:

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(1) Whether examination shows entity independent of the service- § 5.174 Protection of entitlement to improvement. To be a basis for connected disability. When a new benefits established before 1959. reduction, a medical examination must diagnosis reflects only a mental (a) Persons in receipt of or entitled to be as complete as those on which deficiency or personality disorder, VA receive benefits on December 31, 1958. payments were authorized or continued will consider the possibility of Any person receiving or entitled to and must demonstrate improvement. temporary remission of a super-imposed receive benefits under any public law (2) Whether a disease is subject to psychiatric disease. administered by VA on December 31, episodic improvement. VA will not (e) Reexamination following a change 1958, may continue to receive such reduce the rating of a disease that is in diagnosis. If VA cannot determine benefits as long as the conditions subject to temporary or episodic whether evidence of a change in warranting the payment under those improvement on the basis of only one diagnosis represents a progression of the laws continue, unless there was fraud, examination unless the evidence of previously diagnosed condition, an clear and unmistakable error of fact or record clearly demonstrates sustained error in prior diagnosis, or a disease law, or misrepresentation of material improvement. Diseases subject to entity independent of the service- facts. VA will pay the greater benefit temporary or episodic improvement connected disability after considering under the previous law or the include, but are not limited to: the evidence as described in paragraphs corresponding current section of title 38 (i) Arteriosclerotic heart disease; (c) and (d) of this section, VA will U.S.C. in the absence of an election to (ii) Bronchial asthma; continue the assigned rating. VA will receive the lesser benefit. (iii) Epilepsy; cite the former diagnosis with the new (iv) Gastric or duodenal ulcer; diagnosis, if any, in parentheses, with a (Authority: Pub. L. 85–857, 72 Stat. 1105) (v) Bipolar disorders or other notation that the rating will be (b) Service connection established psychotic reaction; continued pending reexamination, to be under prior laws. Awards of service (vi) Anxiety disorders; and conducted on a date to be determined connection and the rate of disability (vii) Many skin diseases. on the basis of the facts of each compensation paid under prior laws (3) Whether apparent improvement is individual case. repealed by Public Law 85–56 are due to bed rest. VA will not reduce a (Authority: 38 U.S.C. 501(a)) protected, provided that the conditions stabilized rating of a disease that warranting such status and rate becomes comparatively symptom free Cross Reference: § 5.102, concerning continue and the award was not based (findings absent) after bed rest based on VA criteria for scheduling on fraud, misrepresentation of facts, or an examination that reflects the results reexaminations. clear and unmistakable error. With of bed rest. § 5.172 Protection of continuous 20-year respect to such protected awards, VA (4) Whether evidence clearly ratings. may grant disability compensation and demonstrates improvement. VA will (a) Disability compensation rating. If special monthly compensation under find material improvement only if the VA has rated a disability at or above a current law if such award would result evidentiary record clearly demonstrates, specific level for 20 years, then VA may in disability compensation payment at a after full compliance with the procedure not reduce the rating below such level rate equal to or higher than that payable outlined in paragraph (d) of this section, unless the rating was based on fraud. on December 31, 1957. Where a changed that the disability does not meet the (b) Pension rating. VA will not reduce physical condition warrants re-rating of requirements for the current disability a permanent total disability rating for service-connected disabilities, the rating. pension purposes that VA has amounts of disability compensation and (5) Whether VA’s review is based on continuously provided for 20 or more special monthly compensation will be a complete medical record. A complete years unless the rating was based on determined under 38 U.S.C. 1114. medical record includes all of the fraud. following elements, if such records (Authority: Pub. L. 85–86, 71 Stat. 277; Pub. (c) Effect of election regarding receipt L. 85–857, 72 Stat. 1105) exist: of disability compensation. The Cross Reference: § 5.1, for the (i) The entire case history; provisions of paragraph (a) or (b) of this (ii) Medical-industrial history; definition of ‘‘fraud’’. section apply regardless of whether the (iii) Records related to treatment of veteran elects to receive disability intercurrent diseases and exacerbations, § 5.175 Severance of service connection. compensation or pension during all or including, but not limited to, hospital (a) Protected service connection. (1) any part of the 20-year period. reports, bedside examinations, VA may not sever service connection examinations by designated physicians, (Authority: 38 U.S.C. 110) that has been in effect for 10 years or and examinations that reflect the results Cross Reference: §§ 5.1, for the more unless evidence shows that: of tests conducted by laboratory definition of ‘‘fraud’’; 5.164, Standard of (i) The original grant was obtained by facilities and the cooperation of proof for reducing or discontinuing a fraud; or specialists in related lines; benefit payment or for severing service (ii) It is clear from military records (iv) Private and VA medical connection based on a beneficiary’s act that the person identified as a veteran examination records; and of commission or omission. did not have the requisite qualifying (v) Special examinations indicated as military service or the veteran’s a result of general examination. § 5.173 Protection against reduction of discharge from service is of a type to (6) Whether there is a new or changed disability rating when VA revises the preclude service connection as diagnosis. Where there is evidence of a Schedule for Rating Disabilities. described in § 5.30. change in diagnosis, VA will follow 38 VA will not apply a revision of the (2) The protection afforded in this CFR 4.13 (Effect of change of diagnosis), schedule for rating disabilities to reduce section applies to determinations of as well as this section. VA will consider a disability rating existing on the service connection that were the basis whether evidence of a change in effective date of the revision unless for grants of entitlement to dependency diagnosis represents a progression of the medical evidence establishes that the and indemnity compensation (DIC), and previously diagnosed condition, an disability has actually improved. to disability compensation or DIC error in prior diagnosis, or a disease (Authority: 38 U.S.C. 1155) granted under 38 U.S.C. 1151.

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(b) Standard of proof to sever service (d) Character of discharge or line of under paragraph (c) of this section or to connection—general rule. (1) VA will duty. This paragraph (d) applies if VA reduction of disability compensation sever service connection if evidence discontinues benefits based on a under paragraph (e) of this section. establishes that it is clearly and determination as to character of (Authority: 38 U.S.C. 1110, 1131, 1117, 5112) unmistakably erroneous (the burden of discharge or line of duty. In such cases, proof being upon VA), except as two 60-day periods apply. After §§ 5.178–5.179 [Reserved] provided in paragraph (c) of this applying the 60-day notice period section. Severance under this paragraph described in § 5.83(a), VA will apply a Subpart D—Dependents and Survivors (b) is subject to §§ 5.152 and 5.83(a) second 60-day period which begins on General Dependency Provisions (regarding due process procedures). the day VA sends notice to the (2) A change in diagnosis may be beneficiary of the final decision. VA § 5.180 [Reserved] accepted as a basis for severance of will discontinue benefits effective the first day of the month after the second § 5.181 Evidence needed to establish a service connection if the examining dependent. physician or physicians or other proper 60-day period. (a) Scope. This section describes medical authority certifies that, in the (e) Disability compensation. This general types of evidence used to light of all accumulated evidence, the paragraph (e) applies if VA reduces or establish the existence of a dependent. diagnosis that was the basis of the discontinues disability compensation (b) Using a statement to establish a award of service connection is clearly because of a change in service- dependent. Except as provided in erroneous. This certification must be connected disability or employability paragraph (c) of this section, VA will accompanied by a summary of the facts, status. In such cases, two 60-day periods accept a claimant’s or beneficiary’s findings, and reasons supporting the apply. After applying the 60-day notice statement as sufficient proof of conclusion that the diagnosis is period described in § 5.83(a), VA will marriage, termination of marriage, or erroneous. apply a second 60-day period which birth of a child. The statement must (c) Standard of proof to sever service begins on the day VA sends notice to the beneficiary of the final decision. VA contain all of the following information, connection—fraud. See § 5.164, for if applicable: standard of proof to sever service will pay a reduced rate or discontinue disability compensation effective the (1) The date (month, day, and year) connection for act of commission or and place (city and state, or country if omission; see § 5.83(a), for due process first day of the month after the second 60-day period. outside of a state) of the: procedures for severing service (i) Marriage; connection. (f) Pension. This paragraph (f) applies if VA reduces or discontinues pension (ii) Marriage termination; or (Authority: 38 U.S.C. 1159, 5104) payments because of a change in (iii) Birth; (2) The full name of the person whose Cross Reference: § 5.1, for the disability or employability status. In dependency is asserted, and the definition of ‘‘fraud’’. such cases, VA will reduce the rate or discontinue pension effective the first person’s relationship to the claimant; § 5.176 [Reserved] day of the month after notice to the (3) The Social Security number of the person whose dependency is asserted; § 5.177 Effective dates for reducing or beneficiary of the final decision. (g) Chapter 18 monetary allowance. If, and discontinuing a benefit payment or for (4) The name and address of the severing service connection. after providing the 60-day notice period described in § 5.83(a), VA reduces or person who has custody of any child (a) Suspended awards. If an award has discontinues chapter 18 monetary whose dependency is asserted, if the been suspended and it is determined allowance, it will apply the effective child does not reside with the claimant. that no additional payments are in date provision in § 5.591(b)(5). (c) When a statement alone is not order, VA will discontinue the award (h) Other. The effective dates of sufficient. VA will require additional effective the first day of the month after reductions or discontinuances not listed supporting evidence to establish a the month for which VA last paid in this section will be as stated in the veteran’s marital status or a parent/ benefits. sections listed in the table in § 5.705. natural child relationship, as set forth in (b) Running awards. If an award is (i) Exceptions. This section does not §§ 5.192(c), 5.193, 5.221, 5.229, and running, VA will discontinue the award apply if the reduction or discontinuance 5.500, if any of the following factors are effective as appropriate under involves: true: paragraphs (c) through (h) of this (1) A change in law or a VA (1) The statement does not contain all section. administrative issue or a change in of the applicable information required (c) Severance of service connection. interpretation of law or VA issue; if so, by paragraphs (b)(1) through (4) of this Unless severance is based on the apply § 5.152; section; beneficiary’s act of commission or (2) An award that was erroneous due (2) The claimant or beneficiary does omission that resulted in VA’s grant of to an act of commission or omission by not reside in a State; benefits, this paragraph applies if VA the beneficiary or with the beneficiary’s (3) VA questions the accuracy of all or severs service connection. In such cases, knowledge; if so, apply § 5.167(b), part of the statement; two 60-day periods apply. After regarding effective dates for reducing or (4) The statement conflicts with other applying the 60-day notice period discontinuing a benefit payment, or for evidence in the record; or described in § 5.83, VA will apply a severing service connection, based on (5) There is a reasonable indication, second 60-day period which begins on commission or omission, or based on either in the statement or in other the day VA sends notice to the administrative error or error in evidence in the record, of fraud or beneficiary of the final decision. VA judgment; or misrepresentation of the relationship in will sever service connection effective (3) An award that was based solely on question. the first day of the month after the administrative error or an error in (d) Photocopies accepted. If VA is second 60-day period. See § 5.167 for judgment by VA; if so, apply § 5.166. satisfied that photocopies are authentic effective date of severance of service However, this paragraph (i)(3) does not and free from alteration, then VA will connection obtained by fraud. apply to severance of service connection accept them to establish birth, death,

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marriage, or relationship under this original claim for benefits or the date of (b) Change due to marriage, section, or to prove a change in a claim for increased benefits. remarriage, or beginning of inferred dependency under § 5.182. Otherwise, (b) Specific applications and marital relationship. See §§ 5.197 and VA may require certified copies of exceptions. In the following 5.203(b)(2). documents from the custodian of the circumstances, and subject to (c) Changes in status of child documents, bearing the custodian’s paragraphs (a)(1), (2), and (3) of this dependents. The effective date of a signature and official seal. section, the effective date of an award reduction or discontinuance based on changes in child status will be (Authority: 38 U.S.C. 501(a), 5124) for a dependent will be: (1) Marriage. The date of marriage, if determined as follows: Cross Reference: § 5.1, for the VA receives information about the (1) Child reaches age 18 or 23. See definitions of ‘‘custody of a child,’’ marriage no later than 1 year after the § 5.231. ‘‘fraud,’’ and ‘‘State.’’ event. (2) Child no longer qualifies as (2) Birth. The date of the birth of a adopted child. See § 5.232. § 5.182 Change in status of dependents. (3) Stepchild leaves veteran’s (a) Beneficiary’s duty to report. A child, if VA receives information about the birth no later than 1 year after the household. See § 5.233. beneficiary must provide VA a (4) Child no longer permanently event. statement containing the details of any incapable of self support. See § 5.234. change in dependency that could lead to (3) Adoption. For an adoption, the (d) Effective date of reduction or a reduction or discontinuance of earliest of the following dates, as discontinuance based on change in benefits. The beneficiary must report the applicable, if VA receives information status. Notwithstanding any other date (month, day, and year) and place about the adoption no later than 1 year section of this part, if VA cannot (city and state, or country if outside of after the adoption: determine the month, day, and year of a state) of any of the following events: (i) The date of the adoption placement an event that changes the status of a (1) Marriage; agreement; dependent, then VA will reduce or (2) Annulment of marriage; (ii) The date of the interlocutory discontinue benefits effective the first (3) Divorce; (temporary) adoption decree; or day of the month after the month VA (4) Death of a dependent; or (iii) The date of the final adoption last paid benefits. (5) Change in status of a living child decree. (Authority: 38 U.S.C. 5112(b)(2)) affecting his or her status as a (4) Date of qualifying disability rating. dependent. The effective date of the qualifying Cross Reference: § 5.477, Effective (b) Evidence of changes. VA will disability rating, if VA receives dates of reductions and discontinuances accept a beneficiary’s statement of a information of the dependency no later of Old-Law Pension and Section 306 change in the status of a dependent than 1 year after the date VA sent notice Pension. of the rating action to the claimant or under this section as proof of the change §§ 5.185–5.190 [Reserved] if VA has no information contradicting beneficiary. the statement. Otherwise, VA will (5) Date of original award. The same Marriage, Divorce, and Annulment require additional proof regarding the day as the effective date of the original § 5.191 Marriages VA recognizes as valid. matter as specified elsewhere in subpart award of benefits other than benefits for D. a dependent, if: A valid marriage for VA purposes is one between persons of the opposite sex (Authority: 38 U.S.C. 501(a)) (i) Benefits for a dependent are claimed on the same benefit application that was: Cross Reference: § 5.104, ‘‘Certifying used to file the claim for the original (a) Valid under the law of the place where the persons lived at the time of continuing eligibility to receive benefits award of benefits; or the marriage; (ii) VA receives information to § 5.183 Effective date of award of benefits (b) Valid under the law of the place establish a dependent no later than 1 for a dependent. where the persons lived at the time year after the effective date of the (a) General rule. Except as provided in entitlement to benefits arose; or paragraph (b) of this section, the original award of benefits. (c) Deemed valid under § 5.200, for effective date of the award of benefits (Authority: 38 U.S.C. 5103(b), 5110(a), (f), claims involving a surviving spouse. (n)) for a dependent is the date the claimant (Authority: 38 U.S.C. 101(31), 103(c)) or beneficiary informs VA of the Cross Reference: § 5.235, Effective existence of the dependent, subject to date of an award of benefits due to § 5.192 Evidence of marriage. the following conditions: termination of a child’s marriage. (a) Scope. This section describes the (1) Additional evidence. If VA evidence of marriage VA will accept requests additional evidence based on § 5.184 Effective date of reduction or when supplementary evidence is the information of the existence of the discontinuance based on changes in required in addition to the statement dependent, the claimant or beneficiary dependency status. described in § 5.181(b). must provide such evidence no later Except for Old-Law Pension or (b) Evidence of a valid marriage. VA than 1 year after VA’s request. If the Section 306 Pension, the effective date will accept evidence as prescribed in claimant or beneficiary provides the of a reduction or discontinuance based paragraph (c) of this section as proof of requested evidence more than 1 year on an event that changes the status of a a valid marriage under § 5.191, unless after VA’s request, the effective date of dependent will be determined as there is contrary evidence of record. If the establishment of a dependent on the follows: either party to the marriage was claimant’s or beneficiary’s award will be (a) Change in dependency due to previously married, the claimant or the date VA receives such evidence. death, divorce, or annulment. VA will beneficiary must provide VA with a (2) Date of dependency. No award pay a reduced rate or discontinue certified statement of the date, place, will be effective before the date benefits effective the first day of the and circumstances under which any dependency arose. month after the month in which the prior marriage ended. (3) Date of original claim. No award death occurred or in which the divorce (c) Acceptable evidence of marriage. will be effective before the date of an or annulment became effective. In order to prove a valid marriage, a

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claimant must file a statement as Cross Reference: § 5.1, for the (i) The law of the place where the prescribed in § 5.181. If the statement is definition of ‘‘certified statement,’’ parties were living when they were insufficient under § 5.181(c), VA will ‘‘child born of the marriage,’’ and married recognizes the validity of the accept as additional supporting ‘‘State.’’ § 5.200, Surviving spouse: divorce decree; or evidence the first of the following items requirement of valid marriage to (ii) The law of the place where the that is obtainable; VA will not accept a veteran. parties were living when the right to lower item unless it is established that benefits arose recognizes the validity of the items listed above it are § 5.193 Proof of marriage termination the divorce decree. unobtainable: where evidence is in conflict or termination (2) Foreign decree granted to residents is contested. (1) A copy or abstract of the public of a State. If the issue is whether a record of marriage, or a copy of the If there is conflicting evidence of remarried person’s foreign divorce is church or other religious-context record record regarding marriage termination, valid, VA will accept the validity of the of marriage. The copy or abstract must or the evidence of record is contested by challenged divorce decree if both of the include the names of the persons an interested party, a claimant must file following conditions are met: married, the date and place of the a statement under § 5.181. If the (i) The law of the State in which the marriage, and the number of any prior statement is insufficient under persons lived at the time they obtained marriages if shown on the official § 5.181(c), VA will accept as additional the divorce decree recognizes the decree record. supporting evidence any of the as valid; and (2) An official report from the service following items: (ii) No court of last resort has found department if the veteran is a party to (a) Proof of the former spouse’s death; the divorce decree invalid in the places the marriage and the marriage took (b) Proof of divorce as specified in where the persons lived when they were place during the veteran’s military § 5.194(b) or (c), as applicable; or married or when the right to benefits service. (c) A court-certified copy of the final arose. decree of annulment or a court-certified (3) An affidavit from the official or (Authority: 38 U.S.C. 103(c), 501(a)) clergyman who performed the abstract of such a decree. Cross Reference: § 5.1, for the ceremony. (Authority: 38 U.S.C. 501(a)) (4) The original marriage certificate if definition of ‘‘State.’’ § 5.194 Acceptance of divorce decrees. VA is satisfied that it is genuine and free § 5.195 [Reserved] from alteration. (a) General rule. (1) VA will accept as (5) The affidavits or certified valid a divorce decree that is regular § 5.196 Void or annulled marriages. statements of two or more eyewitnesses (proper) on its face unless its validity is (a) Void marriage. (1) General rule. A to the ceremony. challenged by either of the following marriage is void if at least one party to (6) For informal or common-law persons: the marriage did not meet the legal marriages in jurisdictions where (i) One of the parties named in the requirements for entering into the marriages other than by ceremony are divorce decree; or marriage at the time the marriage took recognized: (ii) Any person whose entitlement to place. Examples of void marriages (i) A copy of the State’s benefits would be affected if VA include marriages in which at least one acknowledgement of registration, if the recognizes the decree as valid. party was already married and State has a procedure for registering (2) In case of such a challenge, VA marriages in which at least one party informal or common-law marriages; or will make an independent decision did not meet the minimum age (ii) The affidavit or certified statement about the validity of the divorce decree of one of the parties to the marriage, requirement for marriage. VA Regional based on the criteria in paragraph (b) or Counsel will determine whether a giving all the facts and circumstances (c) of this section, as applicable. concerning the marriage. This includes marriage is void under the law of the (b) Challenged divorce decree—party place that governs the validity of the details of the agreement made by the to the divorce has not remarried. If a parties at the time they began living marriage’s. See § 5.191. person whose divorce decree is (2) Evidence. To establish that a together, the length of time in months challenged has not remarried, VA will marriage was void, VA must receive a and years they have lived together, the accept the divorce decree as valid if all certified statement from the claimant or location of each residence and the dates the following conditions are met: beneficiary describing the facts that the parties lived there, and whether a (1) The person who obtained the made the marriage void. VA may require child was born of the relationship. Such divorce had a permanent residence in the claimant or beneficiary to file affidavits or certified statements must be the place where the divorce decree was additional evidence as the individual accompanied by affidavits or certified issued; circumstances may require. See § 5.1 for statements from two or more persons (2) The person satisfied all the legal the definition of ‘‘certified statement’’. who know from personal observation requirements for obtaining a divorce in (b) Annulled marriage. To establish the relationship that existed between the place in which the divorce decree that a marriage has been annulled, VA the parties. The affidavits or statements was issued; and must receive a copy or abstract of the of these persons must include when the (3) VA has the original divorce decree, court’s annulment decree. VA will parties lived together, the places of the a court-certified copy of the original accept the decree as valid unless one of parties’ residence, whether they referred decree, or a court-certified abstract of the following conditions applies: to themselves as married in the the original decree. (1) The copy or abstract of the decree communities they lived in, and whether (c) Challenged divorce decree—party discloses irregularities; those communities generally accepted to the divorce has remarried—(1) (2) VA has reason to question the them as being married. General rule. Except as provided in court’s authority to issue the annulment (7) Any other evidence that would paragraph (c)(2) of this section, if the decree; or reasonably allow a VA decisionmaker to issue is whether a remarried person is (3) There is evidence to show that the conclude that a valid marriage did validly divorced from a prior spouse, annulment might have been obtained by occur. then VA will accept the validity of the fraud of either party or by collusion of (Authority: 38 U.S.C. 103(c), 501(a)) challenged divorce decree if either: the parties.

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(Authority: 38 U.S.C. 103(c), (d), (e), 501(a)) signed statement from the person who meets all of the following Cross Reference: § 5.1, for the indicating that he or she had no requirements: definition of ‘‘certified statement’’, and knowledge of a legal impediment at the (1) The person was married to the § 5.1 for the definition of ‘‘fraud’’. time of the attempted marriage. VA will veteran at the time of the veteran’s accept the statement as true if the death; § 5.197 Effective date of reduction or person files evidence of the attempted (2) The marriage was valid under discontinuance of Improved Pension, marriage acceptable under § 5.192(c) § 5.191; and disability compensation, or dependency satisfies the other requirements in this (3) The person ‘‘lived continuously’’ and indemnity compensation due to section, and there is no contradictory with the veteran under paragraph (b) of marriage or remarriage. evidence. VA will apply the following this section, from the date of marriage When a reduction or discontinuance guidelines to determine whether a to the date of the veteran’s death. of Improved Pension, disability person had knowledge of a legal (b) Lived continuously. The following compensation, or dependency and impediment: considerations apply when determining indemnity compensation is required (i) Only the person’s knowledge at the whether a person lived continuously, based on marriage or remarriage, VA time of the attempted marriage, but not also referred to in this part as will pay the reduced rate or discontinue knowledge acquired after the marriage, continuous cohabitation, with a veteran: benefits as follows: is relevant. (1) Whether there was more than one (a) Beneficiary or apportionee. VA (ii) Legal impediments include, but marriage to the veteran. If a surviving will pay the reduced rate or discontinue are not limited to: spouse has been legally married to the benefits effective the first day of the (A) One of the parties being underage; same veteran more than once, VA will month in which the marriage or (B) One of the parties lacking mental use the date of the original marriage to remarriage of a beneficiary or capacity to contract marriage; decide whether the surviving spouse apportionee occurred. (C) The parties being too closely has met the marriage date requirements. (b) Dependent of a beneficiary. VA related to marry under state law; (2) Whether the person was at fault in will pay the reduced rate or discontinue (D) Failing to comply with procedural the separation—(i) Criteria. Even if the benefits effective the first day of the prerequisites under State law, such as veteran and the person separated during month after the month in which the obtaining a blood test or marriage the marriage, the continuous marriage or remarriage of a dependent of license, or fulfilling a length-of- cohabitation requirement of paragraph a beneficiary occurred. residence requirement; (a)(2) of this section is met if: (A) The person was not at fault in (Authority: 38 U.S.C. 5112(b)(1), 5112(b)(2)) (E) One of the parties having a prior undissolved marriage at the time of the causing the separation; and Cross Reference: § 5.477, Effective attempted marriage; or (B) The veteran brought about the dates of reductions and discontinuances (F) In a jurisdiction that does not separation or the veteran’s misconduct of Old-Law Pension and Section 306 recognize common-law marriages, the caused the separation. Pension. parties’ failing to marry through a (ii) When misconduct occurred. In determining who was at fault in causing §§5.198–5.199 [Reserved] marriage ceremony. (iii) If the person files a signed the separation, VA will consider the Surviving Spouse Status statement that he or she had no veteran’s and the other person’s knowledge of the impediment to the misconduct at the time of the § 5.200 Surviving spouse: requirement of separation, but not misconduct after the valid marriage to veteran. marriage but there is evidence showing otherwise, VA will not deem the separation. (a) Surviving-spouse status. To qualify (3) Whether a separation was by marriage valid. as a surviving spouse, a person must mutual consent. VA will not consider a (3) Continuous cohabitation. The satisfy one or the other of the following separation to have broken the continuity person lived continuously with the sets of requirements: of cohabitation if the evidence shows it veteran from the day of the marriage to (1) The requirements of § 5.191; or was by mutual consent for a purpose the day of the veteran’s death. See (2) The requirements of paragraph (b) such as the convenience, health, or § 5.201(b). of this section business of one or both persons in the (b) Marriages deemed valid. For (4) No surviving spouse. There is no surviving spouse, as defined in § 5.201, marriage, and the person had no intent purposes of entitlement to death to desert the veteran or abandon the benefits, VA will deem valid an who has filed a claim for death benefits, and whom VA has determined is marriage. attempted marriage between a veteran (4) Whether a separation with entitled to such benefits. However, a and a person for or by whom surviving- estrangement was temporary. A surviving spouse’s entitlement to spouse status is sought (‘‘the person’’) if separation with estrangement occurring accrued benefits does not prevent all of the following criteria are met: during the course of the marriage, another claimant from being considered (1) There must have been an attempt regardless of who is at fault, does not the veteran’s surviving spouse through a at legal marriage. The person must have break the continuity of cohabitation if marriage deemed valid under this attempted to marry the veteran, and the parties are no longer estranged at the section. must have believed that a valid marriage time of the veteran’s death. resulted. The marriage must have (Authority: 38 U.S.C. 103(a), 501(a)) (5) Whether evidence contradicts the endured continuously for at least 1 year Cross Reference: § 5.1, for the statement. VA will accept the person’s immediately preceding, and including, definition of ‘‘State’’. § 5.432, Deemed statement explaining the reason for the the date of the veteran’s death, unless a valid marriages and contested claims for separation from the veteran in the child was born of or before the marriage. Improved Death Pension. absence of contradictory evidence. If a child was born of or before the (6) State law not controlling. State marriage, then the marriage may have § 5.201 Surviving spouse: requirements laws do not control VA’s determination been of any duration. for relationship with the veteran. whether separation has resulted from (2) No knowledge of legal (a) Definition. Except as provided in desertion. VA will, however, consider impediment. VA will accept as true a § 5.203, a surviving spouse is a person findings of fact made in court decisions

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dealing with this issue that were made (1) Void (see § 5.196); or another person, if competent, credible during the lifetime of the veteran. (2) Annulled by a court having evidence shows that the surviving (Authority: 38 U.S.C. 101(3), 103(d)(3), authority to annul the marriage, unless spouse stopped living with that person 501(a), 5110(a), 5112(b)(1)) VA determines that the annulment was and holding himself or herself out as obtained through fraud by either party that person’s spouse. Such evidence Cross Reference: § 5.1, for the or by collusion of the parties. may consist of the surviving spouse’s definition of ‘‘State’’. (Authority: 38 U.S.C. 103(d)(1)) certified statement of the fact. § 5.202 [Reserved] (2) Limitation. No payment may be (d) Reinstatement of eligibility for made under this paragraph (e) for any § 5.203 Effect of remarriage on a surviving benefits for a surviving spouse who, period before October 1, 1998. spouse’s benefits. because of remarriage, may have been ineligible for benefits under laws in (Authority: 38 U.S.C. 103(d)(2); Sec. 8207, (a) General rule. VA will not Pub. L. 105–178, 112 Stat. 495) recognize a person as the surviving effect before January 1, 1971, and whose spouse of a veteran if either of the remarriage ended before November 1, (f) Remarriages after age 57. (1) A following is true: 1990. After December 31, 1970, none of surviving spouse’s remarriage after (1) The person has remarried. In the following elements will prevent a reaching age 57 will not prevent the determining eligibility for benefits, VA surviving spouse who may have been surviving spouse from receiving DIC if will accept the decision of a Federal ineligible for benefits under laws in the surviving spouse remarried after court that a person has not remarried if effect before January 1, 1971, because of December 15, 2003. the decision was in a case to which the remarriage, from receiving benefits: (2) No payment may be made under U.S. Government was a party. (1) Remarriage that ended by death this paragraph (f) for any period before (2) The person has held himself or before November 1, 1990; January 1, 2004. herself out to the public as the spouse (2) Remarriage that ended by divorce (Authority: 38 U.S.C. 103(d)(2)(B); Sec. 101, of another person as described in provided that proceedings began before Pub. L. 108–183, 117 Stat. 2652) paragraph (b) of this section. November 1, 1990, unless VA Cross Reference: § 5.1, for the (Authority: 38 U.S.C. 101(3)) determines that the divorce was definition of ‘‘competent evidence’’ and obtained through fraud by the surviving § 5.1, for the definition of ‘‘fraud’’. (b) Holding oneself out as a spouse— spouse or by collusion of the parties; (1) General rule. For purposes of this (3) Remarriage that was dissolved by § 5.204 [Reserved] part, a person has held himself or a court with authority to render divorce herself out as the spouse of another decrees in legal proceedings begun by § 5.205 Effective date of resumption of person if, after September 19, 1962, and benefits to a surviving spouse due to the surviving spouse before November termination of a remarriage. after the death of the veteran, the 1, 1990, unless VA determines that the (a) Void remarriage. The effective date person: divorce was obtained through fraud by (i) Lived with a person of the opposite of an award resumed because a the surviving spouse or by collusion of sex; and surviving spouse’s remarriage is void is (ii) Held himself or herself out to the the parties; or (4) The surviving spouse has held the later of the following dates: public, through a pattern or course of (1) The date the surviving spouse and himself or herself out as the spouse of conduct, as the spouse of that person. the other person stopped living together; another person, if competent, credible (2) Effective date of discontinuance of or evidence shows that the surviving benefits to a surviving spouse who holds (2) The date VA receives a claim from spouse stopped living with that person himself or herself out as the spouse of the surviving spouse for resumption of and holding himself or herself out as another person. If a surviving spouse benefits. holds himself or herself out as the that person’s spouse before November 1, (b) Annulment. The effective date of spouse of another person, then VA will 1990. Such evidence may consist of the an award resumed because a surviving discontinue that surviving spouse’s surviving spouse’s certified statement of spouse’s remarriage is annulled is: benefits effective the first day of the the fact. (1) The date the annulment became month that the inferred marital (Authority: 38 U.S.C. 501(a); Sec. 4, Pub. L. effective, if the surviving spouse files a relationship began. 91–376, 84 Stat. 789; Sec. 8004, Pub. L. 101– claim for resumption of benefits no later (3) Effective date of resumption of 508, 104 Stat. 1388–343; Sec. 502, Pub. L. than 1 year after that date; or dependency and indemnity 102–86, 105 Stat. 424; Sec. 103, Pub. L. 102– (2) The date VA receives a claim for compensation to a surviving spouse who 568, 106 Stat. 4322) resumption of benefits, if the surviving stops holding himself or herself out as (e) Reinstatement of eligibility for DIC spouse files a claim for resumption of the spouse of another. If a surviving for a surviving spouse who, because of benefits more than 1 year after the date spouse no longer holds himself or remarriage, may have been ineligible for the annulment became effective. herself out as the spouse of another, and DIC under laws in effect before June 9, (c) Divorce. The effective date of an he or she files a claim for dependency 1998—(1) Termination of remarriage. award resumed because a surviving and indemnity compensation (DIC), None of the following elements will spouse’s remarriage ends in divorce, then VA will resume benefits effective prevent a surviving spouse who may provided the surviving spouse meets the the later of: have been ineligible for DIC under laws requirements for reinstatement of (i) The date the surviving spouse no in effect before June 9, 1998, because of § 5.203(d) or (e) is: longer held himself or herself out under remarriage, from receiving benefits: (1) The date the divorce became paragraph (b)(1) of this section; or (i) Remarriage ended by death; effective if the surviving spouse files a (ii) The date VA receives a claim for (ii) Remarriage ended by divorce, claim for resumption of benefits no later benefits from the surviving spouse. unless VA determines that the divorce than 1 year after that date; or (c) Remarriages that do not preclude was obtained through fraud by the (2) The date VA receives a claim for status as a surviving spouse. Remarriage surviving spouse or by collusion of the resumption of benefits, if the surviving will not prevent VA from recognizing a parties; or spouse files a claim for resumption of person as a surviving spouse if the (iii) The surviving spouse has held benefits more than 1 year after the date remarriage was either: himself or herself out as the spouse of the divorce became effective.

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(d) Death. The effective date of an (iii) The veteran and became will not accept a lower item unless it is award resumed because a surviving permanently incapable of self-support established that the items listed above it spouse’s remarriage ends due to a death, before reaching 18 years of age and was are unobtainable: provided the surviving spouse meets the a member of the veteran’s household at (i) A man’s statement in writing and requirements of § 5.203(c) or (d) is: the time he or she became 18 years of signed by him acknowledging himself as (1) The date of death, if the surviving age; or the natural father of the child; spouse files a claim for resumption of (iv) The veteran before the person (ii) Evidence showing that a specific benefits no later than 1 year after that reached 23 years of age, and who is man has been identified as the child’s date; or pursuing a course of instruction as father by judicial decree; or (2) The date VA receives a claim for described in paragraph (b)(2) of this (iii) Other competent evidence resumption of benefits, if the surviving section. showing that a child is the natural child spouse files a claim for resumption of (d) Child enters active duty. A person of a specific man, including any of the benefits more than 1 year after the date who is a child of the veteran under following evidence: of death. paragraphs (a) through (c) of this section (A) A copy of the public record of (Authority: 38 U.S.C. 5110(a), (k), (l)) will not lose that status because the birth or a religious-context record person enters active duty. documenting the birth of the child (such §§ 5.206–5.219 [Reserved] (Authority: 38 U.S.C. 101(4)(A), 104, 501(a)) as a church record of baptism), showing Child Status that a specific man was the informant Cross Reference: § 5.1, for the and was named as the father of the § 5.220 Status as a child for benefit definition of ‘‘State’’. § 5.222, Evidence child; purposes. to establish an adopted child (B) Statements from persons who A person must meet the following relationship. know that a specific man accepted the criteria to be recognized as a child of the § 5.221 Evidence to establish a parent/ child as his own; or veteran for benefit purposes: natural child relationship. (C) Service department records or (a) Marital status. The person must be (a) Parents married at date of child’s public records, such as records from unmarried, except as provided in birth. If additional evidence of schools or welfare agencies, showing § 5.228. relationship is required under § 5.181 that, with his knowledge, a specific man (b) Age. The person must be under 18 was named as the child’s father. years of age, unless either of the and the parents were married to each following is true: other at the time of the child’s birth, a (Authority: 38 U.S.C. 101(4), 501(a)) claimant or beneficiary may prove a (1) The person, before reaching 18 Cross Reference: § 5.1, for the parent/natural child relationship as years of age, became permanently definition of ‘‘competent evidence’’. incapable of self-support because of follows: physical or mental disability (see (1) Mother. Any of the evidence § 5.222 Evidence to establish an adopted § 5.227); or described in § 5.229 that shows a child relationship. (2) The person is under 23 years of mother/natural child relationship may This section states how to establish an age and is pursuing a course of be used to establish such a relationship. adopted child relationship. A claimant instruction at an educational institution (2) Father. Any of the evidence or beneficiary cannot establish an approved by VA. For purposes of this described in § 5.229 that shows a father/ adopted child relationship with a section, the term educational institution natural child relationship may be used statement alone. See also § 5.220(c)(3). means a permanent organization that to establish such a relationship. If the VA will require the first type of offers courses of instruction to a group evidence does not show that the man evidence listed in this section as proof of students who meet its enrollment married to the child’s mother when the of this status, if obtainable. If this type criteria. The term includes schools, child was born is the child’s father, or of evidence is unobtainable, then the colleges, academies, seminaries, shows a different man may be the relationship may still be proven by the technical institutes, and universities. child’s father, then VA will evaluate the next type of obtainable evidence listed. The term also includes home schools facts, request any necessary evidence (a) A final adoption decree. that operate in compliance with the and information, and then make a (b) A revised birth certificate showing compulsory attendance laws of the determination concerning the child’s the child as the child of the adopting States in which they are located, paternity. parent in cases where release of whether treated as private schools or (b) Parents unmarried at date of adoption documents or information is home schools under State law. The term child’s birth. If additional evidence of prohibited or requires petition to a home schools is limited to courses of relationship is required under § 5.181, court, such as records sealed by a court. instruction for grades kindergarten and the parents were not married to (c) An interlocutory adoption decree, through 12. each other at the time of the child’s provided that the decree has not been (c) Relationship. The person must birth, a claimant or beneficiary may rescinded or superseded and the child bear one of the following relationships prove a parent/natural child remains in the custody of the adopting to the veteran: relationship as follows: parent during the interlocutory period. (1) Natural child. A natural child. (1) Mother. Any of the evidence (d) An adoption placement agreement (2) Stepchild. A stepchild who described in § 5.229 that shows a between the adopting parent and an became a stepchild under circumstances mother/natural child relationship may agency authorized by law to arrange described in § 5.226. be used to establish such a relationship. adoptions. VA will recognize such an (3) Adopted child. A person who was (2) Father. In order to prove a father/ agreement for the duration of its term, adopted by: natural child relationship, a claimant provided that the adopting parent (i) The veteran’s surviving spouse must file a statement under § 5.181. If maintains custody of the child. after the veteran’s death under the statement is insufficient under circumstances described in § 5.223; § 5.181(c), VA will accept as additional (Authority: 38 U.S.C. 101(4)) (ii) The veteran before the person supporting evidence the first of the Cross Reference: § 5.1, for the reached 18 years of age; following items that is obtainable; VA definition of ‘‘custody of a child’’.

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§ 5.223 Child adopted after a veteran’s evidence is unobtainable, then the requirement does not apply when the death. relationship may still be proven by the person is attending an educational (a) Evidence. This section states how evidence listed in (b)(1)(ii) of this institution full-time, or when the to establish that a surviving spouse section. person, the veteran, or the divorced adopted a child after a veteran’s death. (i) A statement over the signature of spouse is confined in a hospital, nursing This section states the requirements to the judge or the clerk of the court setting home, other institution, or other health- establish that a child a veteran’s forth the child’s former name and the care facility. surviving spouse adopted after the date of adoption; (2) Continuing requirements. The veteran’s death is the veteran’s child. A (ii) A certified statement by the person must continue to meet the surviving spouse cannot establish a veteran, the veteran’s surviving spouse, requirements noted in paragraphs veteran/adopted child relationship with a person receiving an apportionment of (b)(1)(ii) through (iv) of this section a statement alone. In the absence of benefits, or any of their fiduciaries following the adoption. After the initial evidence to the contrary, VA will accept setting forth the child’s former name, award of benefits to or for the child, VA as true the statement of the surviving the child’s date of birth, and the date may from time to time verify that the spouse or the custodian of the child that and fact of adoption together with person continues to meet these the requirements described in evidence indicating that the child’s requirements. A beneficiary’s failure to paragraphs (b)(2) and (3) of this section original public record of birth has been provide verifying information or have been met. removed from such records. documents upon VA’s request may (b) Circumstances under which (2) Evidence of child/natural parent result in suspension or discontinuance adoption will be recognized. VA will relationship in apportionment cases. If of payments until VA receives proof that recognize a person adopted by a VA receives a claim for an the person still meets the requirements. veteran’s surviving spouse as the apportionment under § 5.772 for a child (c) Living veteran—adopted person veteran’s child if the adoption met all of adopted out of a veteran’s family, the not living in a foreign country. If the the following conditions: evidence must be sufficient to establish veteran is alive and the person adopted (1) The adoption took place under a the veteran as the natural parent of the under foreign law does not live in a decree issued no later than 2 years after child. See § 5.221. foreign country, VA will determine the the date of the veteran’s death; (Authority: 38 U.S.C. 501(a)) validity of the adoption under §§ 5.220 (2) The person adopted was a member and 5.222. Cross Reference: § 5.1, for the of the veteran’s household at the time of (d) Deceased veteran and surviving definition of ‘‘certified statement’’. the veteran’s death; and spouse adoptions—(1) Applicability. (3) At the time of the veteran’s death § 5.225 Child status based on adoption This paragraph (d) applies if a veteran the person adopted was not receiving into a veteran’s family under foreign law. adopted a person under the laws of a regular contributions from any public or (a) Scope—(1) Purpose. VA will apply foreign country, but the parent/child private welfare organization that this section to determine the validity of relationship was not established for VA furnishes services or assistance for an adoption for benefit purposes when purposes during the veteran’s lifetime. children or from a person other than the a person was adopted into a veteran’s This paragraph (d) also applies if a veteran or the veteran’s spouse that family under the laws of a foreign surviving spouse adopted a person were sufficient to provide for the major country. under the laws of a foreign country after portion of the child’s support. (2) Foreign country. For purposes of the veteran’s death. (Authority: 38 U.S.C. 101(4)) this section, the term foreign country (2) Requirements for recognition of adoption. VA will recognize the Cross Reference: § 5.1, for the means any location except for a State, as person’s adoption as valid if the veteran definition of ‘‘custody of a child’’. that term is defined in § 5.1. (3) Inclusion of certain Philippine was entitled to and was receiving a VA § 5.224 Child status despite adoption out veterans. For purposes of this section, dependent’s allowance or similar VA of the veteran’s family. the term ‘‘veteran’’ includes a monetary benefit for the person at any (a) Retention of eligibility for benefits. Commonwealth Army veteran or new time during the 1 year before the The adoption of a veteran’s child out of Philippine Scout under § 5.610. veteran’s death or if all of the following the veteran’s family, whether before or (b) Living veteran—adopted person conditions are met: after the veteran’s death, does not living in a foreign country—(1) (i) The person was under age 18 when terminate that child’s status as the Requirements for recognition of adopted; and veteran’s child for purposes of eligibility adoption. If the veteran is alive and the (ii) All of the following conditions for benefits. person adopted under the law of a were met for at least 1 year before the (b) Evidence. Section 5.181(b) does foreign country lives in a foreign veteran’s death: not apply to establishing status as a country, VA will recognize the person’s (A) The veteran provided one half or child under this section. adoption as valid if all of the following more of the person’s support; (1) Establishing that a child was conditions are met: (B) The person’s natural parent did adopted out of the veteran’s family (i) The person was under age 18 when not have custody of the person unless where release of adoption records is adopted; the natural parent is the veteran’s restricted or prohibited. If the (ii) The veteran provides one-half or surviving spouse; and jurisdiction in which a child was more of the person’s support; (C) The person lived with the veteran adopted out of the veteran’s family will (iii) The person’s natural parent does or with the divorced spouse of the release adoption documents only upon not have custody of the person unless veteran if the divorced spouse is also petition to a court, or the jurisdiction the natural parent is also the veteran’s the natural or adoptive parent. This prohibits release of the documents or spouse; and requirement does not apply when the information, VA will accept the (iv) The person lives with the veteran person is attending an educational evidence listed in paragraph (b)(1)(i) of or with the divorced spouse of the institution full-time, or when the this section to establish the child’s veteran if the divorced spouse is also person, the veteran, or the divorced status as the child of the veteran. If this the natural or adoptive parent. This spouse is confined in a hospital, nursing

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home, other institution, or other health- solely for medical, school, or similar that is afforded only upon sympathetic, care facility. reasons, and a stepchild who is residing therapeutic, or charitable considerations (3) Additional requirements when the with another person who has custody of and that involves no actual or person was adopted by a surviving the stepchild. substantial provision of services. spouse after the veteran’s death. If a (d) Effect of termination of marriage (iv) Lack of employment. The fact that surviving spouse adopts a person after or legal separation on stepchild a person has never been employed tends the veteran’s death, the adoption must relationship—(1) Termination of to show incapacity for self-support if the also meet the requirements of § 5.223 for marriage after a veteran becomes lack of employment was due to the VA to recognize the person’s adoption entitled to benefits. If the marriage person’s physical or mental disabilities as valid. between a veteran and a stepchild’s and not due to unwillingness to work or (Authority: 38 U.S.C. 101(4), 501(a)) natural or adoptive parent ended, or other factors unrelated to the person’s they legally separated, after the date of disability. Cross Reference: § 5.1, for the the veteran’s entitlement to benefits, (2) Nature and extent of disability. (i) definition of ‘‘nursing home’’ and § 5.1, then VA will no longer recognize the In cases where the person is not for the definition of ‘‘State’’. veteran/stepchild relationship unless: provided with sufficient income for his § 5.226 Child status based on being a (i) The stepchild continues to reside or her reasonable support by his or her veteran’s stepchild. with the veteran; or efforts, VA will consider the following (a) Definitions. The following (ii) The veteran continues to provide elements: (A) Whether the nature and extent of definitions apply for purposes of this at least half of the stepchild’s support. disability would render the average section: (2) Termination of marriage before a person incapable of self-support; (1) Stepchild means a natural or veteran becomes entitled to benefits. If (B) The impact of the disability on the adopted child of a veteran’s spouse, but the marriage between a veteran and a person’s ability to care for himself or not of the veteran, including the child stepchild’s natural or adoptive parent herself and to perform the ordinary of a surviving spouse whose marriage to ended, or they legally separated, before tasks expected of a person of the same the veteran is deemed valid under the date of the veteran’s entitlement to benefits, then VA will establish the age; and § 5.200. (C) Whether the person attended (2) Veteran/stepchild relationship, for stepchild as the veteran’s child provided: school, and the highest grade purposes of this part, means a completed. relationship between the veteran and (i) The validity of the marriage can be proved; and (ii) Rating criteria applicable to a the stepchild that meets the disabled veteran set out in the Schedule requirements of this section. (ii) The stepchild continues to be a member of the veteran’s household for Rating Disabilities in part 4 of this (b) Establishing a veteran/stepchild chapter are not controlling. relationship. To establish a veteran/ under paragraph (c) of this section after termination of the marriage. (c) Determining permanence of stepchild relationship all of the incapacity—(1) Principal factors. The following conditions must be met: (Authority: 38 U.S.C. 101(4), 501(a)) principal factors for determining (1) The stepchild is a member of the Cross Reference: § 5.1, for the whether incapacity is permanent veteran’s household, as described in definition of ‘‘custody of a child’’. include, but are not limited to, the paragraph (c) of this section; following: (2) The stepchild is related to the § 5.227 Child status based on permanent (i) The nature and extent of disability; incapacity for self-support. spouse of the veteran by birth or (ii) Whether the disability has adoption; and (a) Scope. An unmarried person who worsened or improved over time; and (3) The veteran is, or was at the time has reached 18 years of age can be (iii) Whether there is a reasonable of his or her death, married to the established as a child if the person was possibility that the disability will natural or adoptive parent of the permanently incapable of self-support improve in the future. stepchild. before reaching age 18. This section sets (2) Case-by-case determinations. VA (c) Member of veteran’s household. out the criteria VA uses to make this determines permanence of incapacity VA will consider a stepchild to be or to determination. for self-support on a case-by-case basis. have been a member of the veteran’s (b) Determining incapacity for self- Evidence to establish this may have household if the conditions in one of support. The principal factors VA originated before or after the child the following paragraphs are met: considers in determining whether a reached 18 years of age. Although other (1) The stepchild became the veteran’s person is incapable of self-support are: types of evidence will be accepted and stepchild before reaching 18 years of age (1) Employment history—(i) considered, generally, the following and is residing with the veteran or was Productive employment. A person who types of evidence are particularly residing with the veteran at the time of earns sufficient income for his or her relevant to this issue: the veteran’s death; reasonable support by his or her efforts (i) VA medical examinations or (2) The stepchild is pursuing a course is not incapable of self-support. treatment records; of instruction as described in (ii) Intermittent employment. VA may (ii) Private medical examination § 5.220(b)(2) who became the veteran’s find a person incapable of self support reports or treatment records; stepchild after reaching 18 years of age, if incapacity for self-support is (iii) Statements of persons having but before reaching 23 years of age; and otherwise established under this section knowledge of the child’s condition who is residing with the veteran or was even though he or she has had through personal observation, such as residing with the veteran at the time of employment that is only part of a tryout teachers, tutors, or social workers; or the veteran’s death; or or that is casual, intermittent, (iv) Statements from representatives (3) The stepchild receives, or at the unsuccessful, or terminated after a short of institutions where the child received time of the veteran’s death was period because of disability. care, schooling, or other related receiving, at least half of his or her (iii) Charitable or therapeutic services. support from the veteran. This includes employment. VA will not find capacity (d) Revision of child status a stepchild not residing with the veteran for self-support based on employment determinations—(1) Certain protection

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provisions are inapplicable. A VA (4) Ended by divorce before November year, and place of birth of that person; determination that a child is 1, 1990, by a court with authority to and the parents’ names. These persons permanently incapable of self-support is render the divorce decree, unless VA must also provide VA with their own not subject to protection under determines that the divorce was ages and an explanation as to how they § 5.170(b), or § 5.173. obtained through fraud by either party came to know the facts surrounding the (2) Reexamination. Only in unusual or by collusion of the parties. birth. cases will VA request reexamination (Authority: 38 U.S.C. 101(4), 103(e), 501(a), (g) Other reliable and convincing after it has found that a child is 1821, 1831; Sec. 9, Pub. L. 93–527, 88 Stat. evidence that provides relevant permanently incapable of self-support. 1702, 1705; Sec. 8004, Pub. L. 101–508, 104 information. This includes, but is not (3) Intermittent employment. A child Stat. 1388–343) limited to: previously shown by competent Cross Reference: § 5.1, for the (1) Census records; evidence to have been permanently definition of ‘‘fraud’’. (2) Hospital records; incapable of self-support before (3) Insurance policies; reaching 18 years of age may be held to § 5.229 Proof of age or birth. (4) School records; remain so at a later date even though In order to prove age or birth, a (5) Employment records; there may have been a short intervening claimant must file a statement under (6) Naturalization records; and period or periods of employment of the § 5.181. If the statement is insufficient (7) Immigration records. type described in paragraph (b)(1)(ii) of under § 5.181(c), VA will require the (Authority: 38 U.S.C. 501(a)) this section, provided the cause of the first type of evidence listed in this incapacity is the same as that upon section as proof of age or birth, if Cross Reference: § 5.1, for the which VA previously found permanent obtainable. If this type of evidence is definition of ‘‘certified statement’’. incapacity and there was no intervening unobtainable, then age or birth may still Effective Dates of Changes in Child injury or disease that could be be proven by the next type of obtainable Status considered a major factor in current evidence listed: incapacity. (a) A copy or abstract of the public § 5.230 Effective date of award of pension (4) Court competency findings. If VA record of birth (such as a birth or dependency and indemnity receives evidence that shows that a certificate). A copy or abstract of the compensation to or for a child born after the veteran’s death. child formerly found by VA to have public record of birth established more been permanently incapable of self- than 4 years after the birth must be (a) The effective date of an award, or support before reaching 18 years of age consistent with material on file with VA an increased award, of pension or of based on mental incompetency has been or must show on its face that it is based dependency and indemnity found competent by a court, VA will upon evidence that would be acceptable compensation (DIC) to or for a child determine whether the child continues under this section. born after the parent/veteran’s death is to be permanently incapable of self- (b) A copy of the public record of the date the child was born if VA support under this section. Such court birth or a religious-context record receives either of the following types of determinations are not binding upon documenting the birth of the child (such evidence within the time specified: VA. as a church record of baptism). An (1) Proof of birth received no later than 1 year after the date of birth; or (Authority: 38 U.S.C. 101(4)(A)(ii), 501(a)) original or a copy of such a document created more than 4 years after the birth (2) Notification of the expected or Cross Reference: § 5.1, for the must be consistent with material on file actual birth received no later than 1 year definition of ‘‘competent evidence’’. with VA. The document must include at after the veteran’s death, provided that § 5.228 Exceptions applicable to least one reference to age or relationship the notice is sufficient to indicate an termination of child status based on made when the reference was not intent to claim pension or DIC benefits marriage of the child. essential to establishing entitlement to described in this section. The marriage of a child generally the benefit claimed. (b) If the evidence described in terminates his or her child status for VA (c) Service department records of paragraph (a) of this section is received purposes, except in the following birth. more than 1 year after the child’s birth circumstances. (d) An affidavit or certified statement in the case of paragraph (a)(1) of this (a) Rule inapplicable to chapter 18 of the physician or midwife who was in section or the veteran’s death in the case benefits. Marriage of a veteran’s child attendance at birth. of paragraph (a)(2) of this section, then does not disqualify him or her for (e) A copy of a Bible or other family the effective date of the award or benefits due to birth defects of a child record containing reference to the birth. increase is the first of the month after of certain veterans under 38 U.S.C. The copy must be accompanied by a the month of receipt of the claim. chapter 18, Benefits for Children of statement from a notary public, or other (Authority: 38 U.S.C. 5110(a), (n)) Vietnam Veterans and Certain Other officer who has authority to administer Veterans. oaths, certifying all the following § 5.231 Effective date of reduction or (b) Termination of marriage. A child’s criteria: discontinuance: child reaches age 18 or 23. marriage will not prevent a child from (1) The year the Bible or other book A reduction or discontinuance of receiving benefits or a beneficiary from in which the record appears was pension, disability compensation, or receiving benefits for that child, if the printed; dependency and indemnity child’s marriage: (2) Whether it appears the record has compensation because a person no (1) Was void, under § 5.196; been erased or changed in any way; and longer qualifies as a child for benefit (2) Was annulled by a court having (3) Whether it appears the entries purposes based on age will be effective authority to annul the marriage, unless were made on the date noted in the on the child’s 18th or 23rd birthday, as VA determines that the annulment was record. applicable under § 5.220(b). For obtained through fraud by either party (f) Affidavits or certified statements of effective dates of reductions or or by collusion of the parties; two or more persons, preferably discontinuance applicable when a child (3) Ended by death before November disinterested, who have knowledge of completes the course of education or 1, 1990; or the name of the person born; the month, otherwise discontinues school

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attendance before his or her 23rd (b) Awards The effective dates for (pertaining to marriages terminated by birthday, see § 5.696. benefits based upon a child’s permanent death or divorce before November 1, (Authority: 38 U.S.C. 5112(a)) incapacity for self-support, to or for a 1990) are effective on the date VA child after the child reaches 18 years of receives a claim for benefits. § 5.232 Effective date of reduction or age are as follows: (Authority: 38 U.S.C. 501(a), 5110(a), (k), (l); discontinuance: terminated adoptions. (1) Initial awards. The effective dates Sec. 9, Pub. L. 93–527, 88 Stat. 1702, 1705; A reduction or discontinuance of of initial awards are governed by Sec. 8004, Pub. L. 101–508, 104 Stat. 1388) pension, disability compensation, or applicable effective date rules under dependency and indemnity § 5.183. §§ 5.236–5.237 [Reserved] compensation because a person no (2) Claim for continuation of benefits. Parent Status longer qualifies as an adopted child (i) If VA receives a claim for the under § 5.220(c)(3) or § 5.222, will be continuation of the benefits no later § 5.238 Status as a veteran’s parent. effective the earliest of the following than 1 year after the child’s 18th (a) Person who qualifies as a veteran’s dates: birthday, then the effective date of a parent for VA purposes. Except as (a) The day after the date the child left continuation is the date of the child’s otherwise provided in this section, a the custody of the adopting parent 18th birthday. parent of a veteran is one of the during the interlocutory period; (ii) If VA receives a claim for the following persons: (b) The day after the date the child left continuation of the benefits more than (1) A veteran’s natural mother or the custody of the adopting parent 1 year after the child’s 18th birthday, father; during the term of an adoption then the effective date of a continuation (2) A veteran’s mother or father placement agreement; is the date VA receives a claim for through adoption; or (c) The day after the date of rescission benefits. (3) A person who stands in the of the adoption decree; or (c) Reduction or discontinuance of relationship of a parent to a veteran, (d) The day after the date of benefits—(1) Pension benefits. If VA subject to the following requirements: termination of the adoption placement reduces or discontinues pension (i) The person stood in the agreement. benefits because the child is no longer relationship of a parent to the veteran incapable of self-support, the effective for no less than 1 year at any time before (Authority: 38 U.S.C. 5112(a)) date will be the first day of the month the veteran’s entry into active military Cross Reference: § 5.1, for the after the month VA last paid benefits. service; and definition of ‘‘custody of a child’’. (2) Disability compensation or (ii) The relationship began before the dependency and indemnity veteran’s 21st birthday, although it may § 5.233 Effective date of reduction or compensation benefits. If VA reduces or have ended at any time. discontinuance: stepchild no longer a discontinues disability compensation or (b) Institutions do not qualify. VA will member of the veteran’s household. dependency and indemnity not recognize an institution as a If a reduction or discontinuance of compensation because the child is no veteran’s parent, even if the institution pension, disability compensation, or longer incapable of self-support the is providing care for the veteran in place dependency and indemnity effective date will be the first day of the of a parent. compensation is because a person no month after the expiration of the 60-day (c) Abandonment. VA will not longer qualifies as a stepchild under notice period described in § 5.83. provide benefits to a person based on § 5.220(c)(2), because he or she is no that person’s status as a veteran’s longer a member of the veteran’s (Authority: 38 U.S.C. 5110, 5112) natural or adoptive parent if that person household, the effective date of a § 5.235 Effective date of an award of abandoned the veteran, unless that reduction or discontinuance will be the benefits due to termination of a child’s person subsequently assumed the legal day after the date the stepchild ceased marriage. and moral obligations of a parent with being a member of the veteran’s (a) Applicability. This section states respect to the veteran. For purposes of household. the effective dates of awards to or for a this section, abandoned means that a (Authority: 38 U.S.C. 5112(a)) child when status as a child has been veteran’s natural or adoptive parent did restored due to termination of the not assume the legal and moral § 5.234 Effective date of an award, child’s marriage under § 5.228. obligations of a parent with respect to reduction, or discontinuance of benefits (b) Effective date—(1) Void marriages. the veteran. Abandonment entails not based on child status due to permanent If a child’s marriage is void, the award just a failure to provide support, but a incapacity for self-support. of benefits is effective the later of the refusal to do so. It is not necessary to (a) Applicability. This section following dates: show that someone else assumed the provides the effective dates of: (i) The date the child and the other parental relationship for abandonment (1) An award of pension, disability person stopped living together; or to occur. compensation, or dependency and (ii) The date VA receives a claim for (d) Not more than one mother and indemnity compensation to or for a benefits. one father recognized—(1) General rule. person who is a child for VA purposes (2) Annulled marriages. If a child’s VA will recognize not more than one under § 5.220(b)(1), because the person marriage is annulled, the award of father and not more than one mother as became permanently incapable of self- benefits is effective: parents of a veteran. support before reaching age 18. (i) The date the annulment decree (2) Different persons qualified as a (2) A reduction, or a discontinuance became final, if VA receives a claim for veteran’s mother or father at different of pension, disability compensation, or benefits no later than 1 year after that times. dependency and indemnity date; or, if not, (i) If two or more persons qualified as compensation to or for a person who is (ii) The date VA receives a claim for a veteran’s mother or father under this a child for VA purposes under benefits. section at different times, VA will § 5.220(b)(1), because the person is no (3) Marriage terminated by death or recognize the person who last qualified longer permanently incapable of self- divorce before November 1, 1990. before the veteran’s last entry into active support. Awards under § 5.228(b)(3) or (4) military service.

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(ii) VA will recognize a veteran’s § 5.241 Service-connected disability. Note 2 to paragraph (a): Chronic disease or natural parent as the mother or father of A service-connected disability is a chronic residual of an injury in temporary the veteran, if he or she was the last current disability as to which any of the remission. VA will not deny service person to have a parental relationship following is true: connection for lack of a current disability solely because a chronic disease, or a chronic with the veteran before the veteran last (a) The disability was caused by an residual of an injury, enters temporary entered active military service. This is injury or disease incurred, or presumed remission. Examples of chronic diseases and true even if that parent’s parental rights to have been incurred, in the line of chronic residuals of injury subject to have been terminated by a court. duty during active military service. See temporary remission include chronic (e) A person claims status as a §§ 5.260 through 5.269 (concerning tinnitus, malaria, mental illness, skin disease, veteran’s mother or father under presumptions of service connection). and intervertebral disc syndrome. paragraph (a)(3) of this section while the (b) The disability was caused by a (b) Time of diagnosis is not veteran’s natural or adoptive mother or preservice injury or disease aggravated, necessarily controlling. Proof of father is still living. or presumed to have been aggravated, in incurrence of a disease during active Unless the natural or adoptive mother the line of duty during active military military service does not require or father relinquished parental control service. See § 5.245. diagnosis during service if the evidence of the veteran, VA will not recognize a (c) The disability is secondary to a otherwise establishes that the disease person identified in paragraph (a)(3) of service-connected disability, pursuant was incurred in service. this section as the veteran’s mother or to §§ 5.246 through 5.248 (governing (c) Residuals of chronic diseases—(1) father if the natural or adoptive mother awards of secondary service General rule. VA will grant service or father was living during the period connection). connection for a current disability not the person claims to have stood in the (Authority: 38 U.S.C. 1110, 1112, 1116, 1117, clearly due to an intercurrent cause if relationship of a mother or father to the 1118, 1131, 1133, 1137) the current disability is caused by a veteran. For purposes of this paragraph chronic disease and competent evidence (e), relinquished parental control means § 5.242 General principles of service establishes that the veteran had the that a veteran’s natural or adoptive connection. same chronic disease in service or parent ceased to provide for the child When a veteran seeks service within an applicable presumptive and that the parent and child connection: period. relationship was broken. (a) VA will give due consideration to Relinquishment of parental control does any evidence of record concerning the (2) Definition of chronic disease. For not necessarily mean abandonment by places, types, and circumstances of the purposes of this paragraph (c), a chronic the parent. However, a finding of veteran’s service as shown by the disease means a disease listed in abandonment would automatically veteran’s service record, the official § 5.261(c). establish relinquishment of control. It is history of each organization in which Note to paragraph (c)(2): Proof that a not necessary to have had a court the veteran served, the veteran’s disease was chronic in service requires a terminate parental rights. medical records, and all pertinent combination of manifestations in service sufficient to identify the disease entity, and (Authority: 38 U.S.C. 101(5), 501(a)) medical and lay evidence; and (b) VA will not consider a statement sufficient observation to establish chronicity at the time, as distinguished from merely § 5.239 [Reserved] that a veteran signed during service that: isolated findings or a diagnosis in service (i) Pertains to the origin, incurrence, including the word ‘‘chronic.’’ See also Subpart E—Claims for Service or aggravation of an injury or disease; § 5.260(c). Isolated findings in service, such Connection and Disability and as joint pain, any abnormality of heart action Compensation (ii) Was against the veteran’s interest or heart sounds, any urinary findings of casts, at the time he or she signed it. or any cough, would not alone establish the Service-Connected and Other Disability presence in service of a chronic disease, such (Authority: 10 U.S.C. 1219; 38 U.S.C. 1154(a)) Compensation as arthritis, disease of the heart, nephritis, or § 5.240 Disability compensation. § 5.243 Establishing service connection. pulmonary disease, first shown as a clear-cut clinical entity at some later date. (a) Definition. Disability (a) Requirements. Except as provided compensation means a monthly in §§ 5.246 and 5.247, and paragraph (c) (3) Continuity of signs or symptoms. payment VA makes to a veteran for a of this section, proof of the following Signs or symptoms noted in service, or service-connected disability, as elements is required to establish service during an applicable presumptive described in § 5.241, or for a disability connection: period, may prove the existence of an a compensated as if it were service (1) A current disability; chronic disease when all of the connected, under § 5.350. (2) Incurrence or aggravation of an following are shown by competent (b) Additional disability injury or disease in active military evidence: compensation based on having service; and (i) The veteran had signs or symptoms dependents. Additional disability (3) A causal link between the injury of a chronic disease during active compensation is payable to a veteran or disease incurred in, or aggravated by, military service or during an applicable who has a spouse, child, or dependent active military service and the current presumptive; parent if the veteran is entitled to disability. (ii) The signs or symptoms continued disability compensation based on a Note 1 to paragraph (a): Permanent from the time of discharge or release single or a combined disability rating of disability shown in service. VA will consider from active military service, or from the 30 percent or more. The additional all three elements of paragraph (a) of this end of an applicable presumptive period disability compensation authorized by section proven if service records establish until the present; and 38 U.S.C. 1115 is payable in addition to that an injury or disease incurred in or (iii) The signs or symptoms currently monthly disability compensation aggravated by active military service demonstrated are signs or symptoms of produced a disability that is clearly payable under 38 U.S.C. 1114. permanent by its nature, such as the a chronic disease. (Authority: 38 U.S.C. 101(13), 1110, 1114, amputation of a limb or the anatomical loss (Authority: 38 U.S.C. 101(16), 501(a), 1110, 1115, 1131, 1135, 1151) of an organ. 1131)

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§ 5.244 Presumption of sound condition is established, no additional or constitute aggravation in service unless on entry into military service. confirmatory evidence is necessary. If the underlying condition worsened, (a) Presumption of sound condition. residual conditions (scars; fibrosis of the resulting in increased disability. VA will presume that a veteran was in lungs; atrophies following disease of the (3) Effects of medical or surgical sound condition upon entry into active central or peripheral nervous system; treatment. The usual effects of medical military service, which means that the healed fractures; absent, displaced or or surgical treatment in service that veteran was free from injury or disease, resected parts of organs; supernumerary ameliorates a preexisting injury or except as noted in the report of a parts; congenital malformations or disease, such as postoperative scars, or medical examination conducted for hemorrhoidal tags or tabs, etc.) are absent or poorly functioning parts or entry into active military service. shown during service but there is no organs, are not an increase in the (b) Medical history recorded in entry evidence of the relevant antecedent severity of the underlying condition and examination reports—(1) Medical active disease or injury during service, they will not be service connected histories. The presumption of sound that is satisfactory proof that they unless the preexisting injury or disease condition applies if an examiner preexisted service. Similarly, was otherwise aggravated by service. recorded a history of injury or disease manifestation of lesions or symptoms of (4) Combat or prisoner-of-war service. in an entry examination report, but the chronic disease from date of enlistment, The development of signs or symptoms, examiner did not report any or so close to such date that the disease whether temporary or permanent, of a contemporaneous clinical findings could not have originated in so short a preexisting injury or disease during or related to such injury or disease. VA period, will be satisfactory proof that proximately following combat with the may consider the notation of history they existed preservice. VA will enemy, as defined in § 5.249(a)(2), or together with other evidence in consider conditions of an infectious following status as a prisoner of war determining whether the presumption nature with regard to the circumstances will establish aggravation of the of sound condition is rebutted under of the infection and if manifested in less disability resulting from that preexisting paragraph (e) of this section. than the respective incubation periods injury or disease. (2) Medical examination reports. The after reporting for duty, VA will (c) Rebutting the presumption— presumption of sound condition is consider them to have preexisted natural progress of a disease. The rebuttable under paragraph (d) of this service. VA will consider the following presumption of aggravation is rebutted section even if an entry medical to have existed preservice: if VA specifically finds by clear and examination shows that the examiner (1) Personality disorders if they are unmistakable evidence that the increase tested specifically for a certain injury or characterized by developmental defects in the severity of disability during disease and did not find that injury or or pathological trends in the personality service (or during an applicable disease, if other evidence of record is structure manifested by a lifelong presumptive period) was normal for the sufficient to overcome the presumption. pattern of action or behavior; disease, that is, active military service (c) Rebutting the presumption. (2) Chronic psychoneurosis of long did not contribute to the increase. (1) For veterans with any wartime duration; or (Authority: 38 U.S.C. 1153, 1154) service and for veterans with peacetime (3) Other psychiatric symptomatology service after December 31, 1946, VA can shown to have existed prior to service § 5.246 Secondary service connection— rebut the presumption only with clear with the same manifestations during disability that is due to or the result of and unmistakable evidence that the service, which were the basis of the service-connected disability. injury or disease resulting in the service diagnosis. Except as provided in § 5.365(a), VA disability for which the veteran claims (Authority: 38 U.S.C. 1110, 1111, 1131, 1137) will grant service connection for a service connection both: disability that is due to or the result of (i) Preexisted service; and § 5.245 Service connection based on a service-connected disability. aggravation of preservice injury or disease. (ii) Was not aggravated by service, (Authority: 38 U.S.C. 501(a), 1110, 1131) which means that during service there (a) Presumption of aggravation. When was no increase in disability due to the an injury or disease was noted in the § 5.247 Secondary service connection— preexisting injury or disease, or that any report of examination for entry into nonservice-connected disability aggravated such increase was due to the natural active military service, VA will presume by service-connected disability. progress of the disease. that active military service aggravated a VA will grant service connection for (2) To determine whether there was preexisting injury or disease if there was any increase in severity of a nonservice- an increase in the severity of disability an increase in disability during service connected disability if the increase was during service (or during any applicable (or during any applicable presumptive due to or the result of a service- presumptive period) resulting from a period) resulting from the injury or connected disability, and the increase preexisting injury or disease, see disease. was not due to the natural progress of § 5.245(b). (b) Determining whether disability the nonservice-connected disease. (3) If there was an increase in the increased during service—(1) Increase However, VA cannot grant service severity of disability during service (or in severity. For purposes of this section, connection under this section without during any applicable presumptive increase in disability during active medical evidence establishing the period) resulting from a preexisting military service means the disability severity of the nonservice-connected injury or disease, to determine whether resulting from the preexisting injury or disability before or contemporaneous the increase was due to the natural disease permanently became more with the increase in severity due to the progress of the disease, see § 5.245(c). severe during service (or during any service-connected disability. The agency (d) Medical principles regarding applicable presumptive period) than it of original jurisdiction (AOJ) will use preexisting conditions. There are was before active military service. the Schedule for Rating Disabilities in medical principles so universally (2) Temporary flare-ups. Except as part 4 of this chapter to rate the severity recognized as to constitute fact (clear provided in paragraph (b)(4) of this level of the nonservice-connected and unmistakable proof), and when in section, temporary or intermittent flare- disability prior to the increase in accordance with these principles ups of signs or symptoms of a severity, any increase in severity due to existence of a disability prior to service preexisting injury or disease do not the natural progress of the disease, and

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the current severity level of the (1) Air Force Cross service. If the evidence establishes a disability. The AOJ will then determine (2) Air Medal with ‘‘V’’ Device diagnosis of PTSD during service and the amount of aggravation by (3) Army Commendation Medal with the claimed stressor is related to that subtracting the rating prior to ‘‘V’’ Device service, in the absence of clear and aggravation and any increase in severity (4) Bronze Star Medal with ‘‘V’’ Device convincing evidence to the contrary, due to the natural progress of the (5) Combat Action Ribbon and provided that the claimed stressor disease from the current severity level. (6) Combat Infantryman Badge is consistent with the circumstances, The result will be the increase due to or (7) Combat Medical Badge conditions, or hardships of the veteran’s the result of a service-connected (8) Combat Aircrew Insignia active military service, the veteran’s lay disability. VA will grant service (9) Distinguished Service Cross testimony alone may establish the connection only for that increase. (10) Joint Service Commendation Medal occurrence of the claimed in-service (Authority: 38 U.S.C. 501(a), 1110, 1131) with ‘‘V’’ Device stressor. (11) Medal of Honor (d) Special rules for veterans who § 5.248 Service connection for (12) Navy Commendation Medal with engaged in combat with the enemy or cardiovascular disease secondary to ‘‘V’’ Device who were prisoners of war. To service-connected lower extremity amputation. (13) Navy Cross determine if a stressor occurred during (14) Purple Heart combat with the enemy or while a VA will grant secondary service (15) Silver Star prisoner of war, VA will apply the rules connection for ischemic heart disease or (16) Combat Action Badge in § 5.249 or § 5.141. other cardiovascular disease that (17) Any other form of decoration that (e)(1) Adequacy of the stressor develops after a veteran has a service- the Secretary concerned may confirmed by VA psychiatrist or connected amputation of one lower designate for award exclusively to psychologist. In the absence of clear and extremity at or above the knee or persons for actions performed while convincing evidence to the contrary, service-connected amputations of both engaged in combat with the enemy. lower extremities at or above the ankles. and provided the claimed in-service (Authority: 38 U.S.C. 501(a), 1154(b)) stressor is consistent with the places, (Authority: 38 U.S.C. 501(a), 1110, 1131) types, and circumstances of the Cross Reference: §§ 5.141 (evidence in veteran’s service, the veteran’s lay § 5.249 Special service connection rules claims of former prisoners of war), testimony alone may establish the for combat-related injury or disease. 5.245(b)(4), Service connection based on occurrence of the stressor if: (a) Combat-related incurrence or aggravation of preservice injury or aggravation of injury or disease shown disease, and 5.250(b)(2), Service (i) The stressor is related to the by lay or other evidence. (1) VA will connection for posttraumatic stress veteran’s fear of hostile military or accept that an injury or disease was disorder. terrorist activity; and incurred or aggravated in service if a (ii) A VA psychiatrist or psychologist, veteran engaged in combat with the § 5.250 Service connection for or a psychiatrist or psychologist with enemy during a period of war, posttraumatic stress disorder. whom VA has contracted, confirms that campaign, or expedition, and there is (a) Service connection for the stressor is adequate to support a satisfactory lay or other evidence that posttraumatic stress disorder (PTSD). diagnosis of posttraumatic stress the injury or disease was incurred in or Service connection for PTSD requires: disorder and that the veteran’s was aggravated by such combat. Lay (1) Medical evidence diagnosing symptoms are related to the claimed evidence may include a veteran’s PTSD in accordance with § 4.125(a) of stressor. description of an event, disease, or this chapter; (2) For purposes of this paragraph (e), injury. VA will accept such evidence as (2) A link, established by medical fear of hostile military or terrorist sufficient proof of incurrence or evidence, between current signs or activity means: aggravation in service of an injury or symptoms and an in-service stressor; (i) That a veteran experienced, disease even though there is no official and witnessed, or was confronted with an record of the incurrence or aggravation. (3) Except as provided in paragraphs event or circumstance that involved The evidence must be consistent with (c), (d), and (e) of this section, credible actual or threatened death or serious the circumstances, conditions, or supporting evidence that the claimed in- injury, or a threat to the physical hardships of the veteran’s combat with service stressor occurred. For purposes integrity of the veteran or others, such the enemy. Incurrence or aggravation of this section, credible supporting as: established under this paragraph (a) evidence means credible evidence from (A) From an actual or potential may be rebutted by clear and convincing any source, other than the claimant’s improvised explosive device; evidence to the contrary. statement, that corroborates the (B) Vehicle-imbedded explosive (2) Combat with the enemy means occurrence of the in-service stressor. device; personal participation in an actual fight (b) VA will not deny a claim without (C) Incoming artillery, rocket, or or encounter with a military foe, hostile trying to verify the claimed stressor. If mortar fire; unit, or instrument or weapon of war. It the existence of the claimed stressor is (D) Grenade; includes presence during such events as not verified by credible evidence, VA (E) Small arms fire, including a combatant or while performing a duty will seek verification from the suspected sniper fire; or in support of combatants, such as appropriate service department or other (F) Attack upon friendly military providing medical care to the wounded. entity. The exception to this rule is aircraft, and (b) Decorations as evidence of when, upon VA’s request, the claimant (ii) The veteran’s response to the combat. When a veteran has received fails to provide the information needed event or circumstance involved a any of the combat decorations listed by the appropriate service department psychological or psycho-physiological below, VA will presume that the veteran or other entity to try to verify the state of fear, helplessness, or horror. engaged in combat with the enemy, claimed stressor. (f) Special rules for establishing a unless there is clear and convincing (c) Special rule for veterans diagnosed stressor based on personal assault. (1) evidence to the contrary: with PTSD during active military VA will not deny a PTSD claim that is

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based on in-service personal assault as part of, or due to or the result of, an if direct evidence shows it was incurred without: organic mental disorder or a service- or aggravated during service. (i) Advising the veteran that evidence connected general medical condition (b) Presumptive period. (1) Definition. from sources other than the veteran’s (such as psychomotor epilepsy), or due Certain presumptions apply only when service records, including evidence to injury. See § 5.246. a disease becomes manifest to a degree described in paragraph (c)(2) of this (3) Nondevelopmental intellectual of 10 percent or more disabling (as section, may constitute credible disability as part of, or due to or the defined by the rating criteria in the supporting evidence of the stressor; and result of, a service-connected disability. Schedule for Rating Disabilities in part (ii) Providing the veteran with an See § 5.246. 4 of this chapter) within a prescribed opportunity to furnish this type of (c) Superimposed disabilities. time period, called the ‘‘presumptive evidence or advise VA of potential Paragraph (a) of this section does not period.’’ This does not mean that the sources of such evidence. preclude granting service connection for disease must have actually been (2) Evidence that may establish a a disability that is superimposed on a diagnosed during that period. A stressor based on in-service personal disability listed in paragraph (a) of this presumption of service connection assault includes, but is not limited to, section. applies when the evidence shows there the following: (d) Hereditary diseases. Paragraph were symptoms during the presumptive (i) Records from law enforcement (a)(1) of this section does not preclude period sufficient to support a finding authorities, rape crisis centers, mental granting service connection for that a disease diagnosed after the health counseling centers, hospitals, or disability due to an inherited or familial presumptive period was actually physicians; disease (as distinguished from disabling to the required degree during (ii) Pregnancy tests or tests for congenital or developmental defects in the presumptive period. This includes sexually transmitted diseases; paragraph (a)(1) of this section). See instances where the principles of (iii) Statements from family members, § 5.261(e) regarding presumptions continuity of signs or symptoms in roommates, fellow servicemembers, or related to certain inherited or familial § 5.243(d) establish a link between clergy; or diseases. symptoms during the presumptive (iv) Evidence of behavioral changes (e) Diseases of allergic etiology. period and a subsequent diagnosis. It following the claimed assault (which Paragraph (a) of this section does not also includes instances where may be shown in any of the following preclude granting service connection for manifestations during the presumptive sources), including: A request for a disability due to diseases of allergic period are followed within a reasonable transfer to another military duty etiology, including, but not limited to, time by a diagnosis. What constitutes a assignment; deterioration in work bronchial asthma and urticaria. reasonable time depends on the nature performance; substance abuse; episodes and course of the disease and any other of depression, panic attacks, or anxiety (Authority: 38 U.S.C. 501(a), 1110, 1131) relevant factors. Simply because a without an identifiable cause; or §§ 5.252–5.259 [Reserved] disease is far advanced when diagnosed unexplained economic or social does not mean that it was at least 10 behavior changes. Presumptions of Service Connection for percent disabling during the (3) VA may submit any evidence that Certain Diseases, Disabilities, and presumptive period. Evidence is still it receives to an appropriate medical or Related Matters required that the claimed disability was mental health professional for an at least 10 percent disabling during the § 5.260 General rules governing opinion as to whether it indicates that presumptions of service connection. presumptive period. a personal assault occurred. (2) Lay and medical evidence. (a) The purpose of presumptions of Whether a disease became manifest (Authority: 38 U.S.C. 501(a), 1110, 1131, service connection. Presumptions of 1154) during a presumptive period may be service connection apply when the established by competent medical § 5.251 Current disabilities for which VA evidence would not warrant service evidence, competent lay evidence, or cannot grant service connection. connection without their aid. A both. Competent medical evidence (a) General rule. VA will not grant presumption of service connection should set forth the signs or symptoms service connection for the following establishes a material fact (or facts) shown by an examination performed disabilities because they are not the necessary to establish service during the presumptive period. result of an injury or disease for connection, even when there is no Competent lay evidence should describe purposes of service connection: evidence that directly establishes that the material and relevant facts as to the (1) Congenital or developmental material fact (or facts). Examples of veteran’s disability observed during the defects (such as congenital or material facts include onset of a disease presumptive period, not merely developmental refractive error of the or exposure to certain herbicide agents conclusions based upon opinion. eye); during a veteran’s military service. The (c) Rebutting a presumption of service (2) Developmental personality evidence must prove that the connection. (1) Presumption rebutted by disorders; or presumption applies to the claimant, affirmative evidence. VA cannot grant (3) Developmental intellectual but after such a showing there is no service connection under §§ 5.261 disability (mental retardation). need for additional evidence of the through 5.268, § 5.270 or § 5.271, when (b) Distinguishable disabilities. VA material fact(s) established by the the presumption has been rebutted by will grant service connection for the presumption. Presumptions of service affirmative evidence (as defined in following disabilities, which are connection are set forth in §§ 5.261 paragraph (c)(2) of this section) that is scientifically distinguishable from those through 5.268 and § 5.270. The general competent to indicate the onset or listed in paragraph (a) of this section rules in this section apply to those existence of a disease, injury, or and actually result from an injury or sections, except as otherwise provided. disability, such as affirmative evidence disease: VA will not use the existence of a that establishes that: (1) Malignant or pernicious myopia; presumptive period to deny service (i) An intervening or nonservice- (2) Personality change (as connection for a presumptive disease related injury or disease caused the distinguished from personality disorder) diagnosed after the presumptive period injury, disease, or disability;

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(ii) The veteran’s willful misconduct Cross Reference: § 5.1, for the any chronic disease listed in this caused the injury, disease, or disability definition of ‘‘competent lay evidence’’ paragraph (c) where a disease becomes (see § 5.661); and ‘‘willful misconduct’’. manifest to a degree of disability of 10 percent or more during the applicable (iii) The injury or disease was not § 5.261 Certain chronic diseases VA incurred in service or, in the case of a presumes are service connected. presumptive period for the disease. For purposes of this section, VA will preexisting condition, was not (a) Eligibility. VA will presume a consider the diseases listed in the table aggravated during service; or disease listed in paragraph (c) of this at the end of paragraph (d) of this section was incurred or aggravated in (iv) A cancer (for which service section to be chronic because of slow service, if it first became manifest to a connection is claimed under § 5.262 or onset and persistent progress, even if § 5.268) originated in another area of the degree of 10 percent or more disabling: (1) No later than 1 year after they are initially diagnosed as acute. body and then spread to one of the separation from a qualifying period of Unless the clinical picture is clear specific areas listed in § 5.262(e) or service; or otherwise, VA will consider whether an § 5.268(b). (2) No later than such other time after acute condition is an exacerbation of a (2) Definition. Affirmative evidence a qualifying period of service as chronic disease. VA cannot apply the means evidence that supports the provided in paragraph (d) of this presumption of service connection existence of a particular fact, and does section. when the evidence shows that the not mean the mere absence of evidence. (b) Qualifying period of service. A disease existed prior to military service However, the absence of evidence may qualifying period of service is: to a degree of 10 percent or more disabling (as defined by the rating be a basis for affirmative evidence. For (1) A period of 90 days or more of criteria in the Schedule for Rating example, a medical professional may active, continuous service that began Disabilities in part 4 of this chapter). conclude that a disease or disability before December 31, 1946, and included However, VA will apply the existed or started at a particular time service during a period of war; or (2) Any period of 90 days or more of presumption where there is evidence based on an absence of evidence of signs active, continuous service after that the disease existed prior to entry or symptoms of the condition before December 31, 1946. into service to a degree of less than 10 that time. (c) Diseases presumed service percent disabling. Only conditions (Authority: 38 U.S.C. 501(a), 1112, 1113, connected. VA will grant service listed in this section are chronic for 1137) connection on a presumptive basis for purposes of this section.

Disease: Disease must manifest to a degree of 10 percent or more disabling no later than this period after: • Either discharge or release from service under paragraph (a) of this section; or • The end of the war period under paragraph (c) of this section.

Anemia, primary ...... 1 year. Arteriosclerosis ...... 1 year. Arthritis ...... 1 year. Atrophy, progressive muscular ...... 1 year. Brain hemorrhage ...... 1 year. Brain thrombosis ...... 1 year. Bronchiectasis ...... 1 year. Calculi of the kidney, bladder, or gallbladder ...... 1 year. Cardiovascular-renal disease, including, but not limited to, hypertension. See paragraph (e) of this 1 year. section. Cirrhosis of the liver ...... 1 year. Coccidioidomycosis ...... 1 year. Diabetes mellitus ...... 1 year. Encephalitis lethargica residuals ...... 1 year. Endocarditis (this term covers all forms of valvular heart disease) ...... 1 year. Endocrinopathies ...... 1 year. Epilepsies ...... 1 year. Hansen’s disease ...... 3 years. Hodgkin’s disease ...... 1 year. Leukemia (acute or chronic) ...... 1 year. Lupus erythematosus, systemic ...... 1 year. Multiple sclerosis ...... 7 years. Myasthenia gravis ...... 1 year. Myelitis ...... 1 year. Myocarditis ...... 1 year. Nephritis ...... 1 year. Organic diseases of the nervous system ...... 1 year. Osteitis deformans (Paget’s disease) ...... 1 year. Osteomalacia ...... 1 year. Palsy, bulbar ...... 1 year. Paralysis agitans ...... 1 year. Psychoses ...... 1 year. Purpura idiopathic, hemorrhagic ...... 1 year. Raynaud’s disease ...... 1 year.

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Sarcoidosis ...... 1 year. Scleroderma ...... 1 year. Sclerosis, amyotrophic lateral ...... 1 year. Syringomyelia ...... 1 year. Thromboangiitis obliterans (Buerger’s disease) ...... 1 year. Tuberculosis, active (see § 5.341, Presumption of service connection for disease; wartime and serv- 3 years. ice after December 31, 1946 ). Tumors, malignant ...... 1 year. Tumors, of the brain or spinal cord or peripheral nerves ...... 1 year. Ulcers, peptic (gastric or duodenal) ...... 1 year.

(d) Cardiovascular-renal disease, agent. VA will presume that the last herbicide agent means 2,4–D; 2,4,5–T including, but not limited to, date on which such a veteran was and its contaminant TCDD; cacodylic hypertension. The term ‘‘cardiovascular- exposed to an herbicide agent is the last acid; or picloram. renal disease’’ applies to combination date on which that veteran served in the (c) No minimum period of service involvement of arteriosclerosis, Republic of Vietnam during that period. required. Any period of active military nephritis, and organic heart disease. VA For purposes of this section, ‘‘Service in service involving presumed or will consider hypertension which was the Republic of Vietnam’’ includes only established exposure to an herbicide 10 percent or more disabling during the service on land, or on an inland agent is sufficient for purpose of 1-year presumptive period as a chronic waterway, in the Republic of Vietnam. establishing presumptive service disease. (ii) Korea. VA will presume that a (e) Hereditary disease. For purposes veteran who, during active military connection of a specified disease under of granting service connection for a service, served between April 1, 1968, this section. chronic disease on a presumptive basis, and August 31, 1971, in a unit that, as (d) Rebutting the presumption of VA will presume that an inherited or determined by the Department of exposure. The presumption of exposure familial disease listed in paragraph (d) Defense, operated in or near the Korean applies unless affirmative evidence of this section was incurred in or DMZ in an area in which herbicides are establishes that the veteran was not aggravated by service, if the disease first known to have been applied during that exposed to an herbicide agent during became manifest to a degree of 10 period, was exposed during such service active military service. to an herbicide agent, unless there is percent or more disabling during the (e) Diseases presumed service affirmative evidence to establish that the applicable presumptive period connected. The following table lists the veteran was not exposed to any such following discharge or release from diseases that VA will presume to be active military service. agent during that service. (2) Presumption of service connection. service connected based on this section. (Authority: 38 U.S.C. 501(a), 1101(3), 1112(a), VA will not apply the presumption of 1137) Where a veteran who was exposed to an herbicide agent during active military service connection where the evidence § 5.262 Presumption of service connection service is diagnosed with a disease shows that the disease existed prior to for diseases associated with exposure to listed in paragraph (e) of this section active military service to a degree of 10 certain herbicide agents. that becomes manifest to a degree of 10 percent or more disabling (as defined by (a) General rules.—(1) Presumption of percent or more disabling during the the rating criteria in the Schedule for exposure. (i) Vietnam. VA will presume period described in paragraph (e) of this Rating Disabilities in part 4 of this that a veteran who, during active section, VA will presume that the chapter). VA will apply the military service, served in the Republic disease was incurred in or aggravated by presumption where there is evidence of Vietnam during the period beginning service. that the disease existed prior to entry on January 9, 1962, and ending on May (b) Definition of herbicide agent. For into such service to a degree of less than 7, 1975, was exposed to an herbicide purposes of this section, the term 10 percent disabling.

Disease: Disease must manifest to a degree of 10 percent or more disabling:

AL Amyloidosis ...... any time after exposure. Chloracne or other acneform disease consistent with chloracne ...... no later than 1 year after the last day of exposure. All chronic B-cell leukemias (including, but not limited to, hairy-cell leu- any time after exposure. kemia and chronic lymphocytic leukemia). Hodgkin’s disease ...... any time after exposure. Multiple myeloma ...... any time after exposure. Non-Hodgkin’s lymphoma ...... any time after exposure. Early-onset peripheral neuropathy ...... no later than 1 year after the last day of exposure. Porphyria cutanea tarda ...... no later than 1 year after the last day of exposure. Prostate cancer ...... any time after exposure. Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) any time after exposure. Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, any time after exposure. Kaposi’s sarcoma, or mesothelioma).1 Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset any time after exposure. diabetes). Ischemic heart disease (including, but not limited to, acute, subacute, any time after exposure. and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s an- gina).2

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Disease: Disease must manifest to a degree of 10 percent or more disabling:

Parkinson’s disease ...... any time after exposure. 1 The term ‘‘soft-tissue sarcoma’’ includes the following diseases: Adult fibrosarcoma. Alveolar soft part sarcoma. Angiosarcoma (hemangiosarcoma and lymphangiosarcoma). Clear cell sarcoma of tendons and aponeuroses. Congenital and infantile fibrosarcoma. Dermatofibrosarcoma protuberans. Ectomesenchymoma. Epithelioid leiomyosarcoma (malignant leiomyoblastoma). Epithelioid sarcoma. Extraskeletal Ewing’s sarcoma. Leiomyosarcoma. Liposarcoma. Malignant fibrous histiocytoma. Malignant ganglioneuroma. Malignant giant cell tumor of tendon sheath. Malignant glomus tumor. Malignant granular cell tumor. Malignant hemangiopericytoma. Malignant mesenchymoma. Malignant schwannoma, including, but not limited to, malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas. Proliferating (systemic) angioendotheliomatosis. Rhabdomyosarcoma. Synovial sarcoma (malignant synovioma). 2 For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.

(Authority: 38 U.S.C. 501(a), 1116) there is no record of such disease during (2) Beriberi heart disease, including such service. ischemic heart disease if localized § 5.263 Presumption of service connection for non-Hodgkin’s lymphoma based on (b) Diseases presumed service edema experienced during captivity; service in Vietnam. connected following internment of any (3) Chronic dysentery; duration. VA will presume the (4) Cirrhosis of the liver; (a) Service in Vietnam. For purposes following diseases were incurred in or (5) Helminthiasis; of this section, ‘‘service in Vietnam’’ aggravated by service if the criteria of (6) Irritable bowel syndrome; includes service in the waters offshore, paragraph (a) of this section are met: or service in other locations if the (7) Nutritional deficiency, including, (1) Any of the anxiety disorders as but not limited to, avitaminosis and conditions of service involved duty or listed in § 4.130 of this chapter, visitation in Vietnam. malnutrition; including, but not limited to, (8) Optic atrophy associated with (b) Service connection based on posttraumatic stress disorder (PTSD); service in Vietnam. Service in Vietnam malnutrition; (2) Atherosclerotic heart disease or (9) Osteoporosis; during the Vietnam Era together with hypertensive vascular disease (10) Pellagra; the development of non-Hodgkin’s (including, but not limited to, lymphoma manifested subsequent to hypertensive heart disease) and their (11) Peptic ulcer disease; and such service is sufficient to establish complications (including, but not (12) Peripheral neuropathy except service connection for that disease. limited to, myocardial infarction, where directly related to infectious (Authority: 38 U.S.C. 501(a)) congestive heart failure, and causes. arrhythmia); (Authority: 38 U.S.C. 501(a), 1112(b)) § 5.264 Diseases VA presumes are service (3) Dysthymic disorder (or depressive connected in a former prisoner of war. Cross Reference: § 5.1, for the neurosis); definition of ‘‘psychosis’’. § 5.140, (a) Eligibility. Any period of active (4) Organic residuals of frostbite, if Determining former prisoner of war military service is sufficient for the Secretary determines that the status, for the definition of ‘‘former establishing presumptive service veteran was detained or interned in prisoner of war’’. connection for a disease specified in climatic conditions consistent with the this section. The requirements for the occurrence of frostbite; § 5.265 Tropical diseases VA presumes length of internment as a prisoner of (5) Osteoporosis if the Secretary are service connected. war (POW) are stated in paragraphs (b) determines that the veteran has PTSD; (a) Eligibility. VA will presume any and (c) of this section. A veteran is (6) Post-traumatic osteoarthritis; disease listed in paragraph (d) of this eligible for the presumption if the (7) Psychosis; and section was incurred in or aggravated by veteran: (8) Stroke and its complications. service if it first became manifest to a (1) Is a former POW under § 5.140; (c) Presumption of service connection degree of 10 percent or more disabling: and for 30 days or more of internment. VA (1) No later than 1 year after (2) Is diagnosed as having a disease will presume the following diseases separation from a qualifying period of listed in paragraph (b) or (c) of this were incurred in or aggravated by service; or section that first became manifest to a service if the veteran was interned for (2) Within a period that indicates degree of 10 percent or more disabling 30 days or more and the criteria of (based on accepted medical literature) at any time after discharge or release paragraph (a) of this section are met: that the incubation period began during from active military service, even if (1) Beriberi; a qualifying period of service.

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(b) Qualifying period of service. For service means active, continuous warrants a presumption of service purposes of this section, ‘‘a qualifying service, during one or more enlistment connection. period of service’’ is: periods. Any such veteran who (3) Rating a qualifying chronic (1) A period of 90 days or more of develops a tropical disease listed in disability. A qualifying chronic continuous active military service that paragraph (d) of this section, or a disability referred to in this section will began before December 31, 1946, and disorder or disease resulting from be rated using rating criteria from the included service during a period of war; therapy administered in connection Schedule for Rating Disabilities in part or with a tropical disease or as a 4 of this chapter for an injury or disease (2) Any period of 90 days or more preventative, will be considered to have in which the functions affected, continuous active military service after incurred such disability in active anatomical localization, or signs or December 31, 1946. military service if the disease or symptoms are similar. (c) Claims based on service ending disorder is shown to have manifested: (4) Qualifying chronic disability before December 7, 1941. In claims (1) No later than 1 year after discharge considered service connected. A based on service ending before or release from active military service; qualifying chronic disability to which December 7, 1941, for purpose of or this section refers will be considered determining whether a tropical disease (2) At a time when accepted medical service connected for purposes of all manifested within a presumptive period literature indicates that the incubation laws of the U.S. under this section, the date of period commenced during active (b) Undiagnosed illness. (1) separation from wartime service will be military service unless clear and Definition. The term undiagnosed the date of discharge or release during unmistakable evidence shows that the illness means an illness that by history, a war period, or if service continued tropical disease was not contracted as physical examination, and laboratory after the war, the end of the war period. the result of active military service. tests cannot be attributed to any known (d) Tropical diseases presumed (Authority: 38 U.S.C. 1133) clinical diagnosis. service connected. VA will presume that (2) Signs and symptoms. Signs or the following diseases were incurred in § 5.266 Disability compensation for certain symptoms that may be manifestations of or aggravated by service if the criteria of qualifying chronic disabilities. undiagnosed illness include, but are not paragraphs (a) through (c) of this section (a) Qualifying chronic disability. (1) limited to: are met: General rule. VA will pay disability (i) Abnormal weight loss; (1) Amebiasis; compensation to a Persian Gulf veteran (ii) Cardiovascular signs or symptoms; who exhibits objective indications of a (iii) Fatigue; (2) Blackwater fever; (iv) Gastrointestinal signs or (3) Cholera; qualifying chronic disability, provided symptoms; (4) Dracontiasis; that such disability became manifest either during active military service in (v) Headache; (5) Dysentery; (vi) Joint pain; (6) Filariasis; the Southwest Asia theater of operations (vii) Menstrual disorders; (7) Leishmaniasis, including, but not during the Persian Gulf War, or to a (viii) Muscle pain; limited to, kala-azar; degree of 10 percent or more disabling (ix) Neurologic signs and symptoms; (8) Loiasis; not later than December 31, 2016. (x) Neuropsychological signs or (9) Malaria; (i) Objective indications of chronic symptoms; (10) Onchocerciasis; disability. For purposes of this section, (xi) Signs or symptoms involving the (11) Oroya fever; ‘‘objective indications of chronic respiratory system (upper or lower); (12) Pinta; disability’’ include both ‘‘signs’’, in the (xii) Signs or symptoms involving (13) Plague; medical sense of objective evidence skin; and (14) Schistosomiasis; perceptible to an examining physician, (xiii) Sleep disturbances. (15) Yaws; and and other non-medical indicators that (c) Medically unexplained chronic (16) Yellow fever. are capable of independent verification. multisymptom illness. (1) Definition. (e) Rebuttal of presumption. Lack of (ii) 6-month period of chronicity. For The term medically unexplained active military service in a locality with purposes of this section, disabilities that chronic multisymptom illness means a a high incidence of the disease may be have existed for 6 months or more and diagnosed illness without conclusive considered evidence to rebut the disabilities that exhibit intermittent etiology or pathophysiology, which is presumption. Post-service residence episodes of improvement and worsening characterized by overlapping signs and during the applicable presumptive over a 6-month period will be symptoms, and has features such as period in a region where the particular considered chronic. The 6-month period fatigue, pain, disability out of disease is endemic may also be of chronicity will be measured from the proportion to physical findings, and considered evidence to rebut the earliest date on which the pertinent inconsistent demonstration of laboratory presumption. VA will consider the evidence establishes that the signs or abnormalities. Chronic multisymptom known incubation periods of tropical symptoms of the disability first became illnesses of partially understood diseases in determining whether the manifest. etiology and pathophysiology, such as presumption of service connection has (2) Definition. For purposes of this diabetes and multiple sclerosis, will not been rebutted. section, a qualifying chronic disability is be considered medically unexplained. a chronic disability resulting from any (2) Illnesses. Medically unexplained (Authority: 38 U.S.C. 1101(4), 1112(a)(2), 1137) of the following (or any combination of chronic multisymptom illnesses the following): include, but are not limited to, those (f) Claims for service connection of (i) An undiagnosed illness; that are defined by a cluster of signs or tropical diseases based on peacetime (ii) A medically unexplained chronic symptoms, such as: service before January 1, 1947. This multisymptom illness that is defined by (i) Chronic fatigue syndrome; paragraph (f) applies to a veteran with a cluster of signs or symptoms; or (ii) Fibromyalgia; peacetime service before January 1, (iii) Any diagnosed illness that the (iii) Functional gastrointestinal 1947, who served 6 months or more. Secretary determines in regulations disorders (excluding structural The requirement of 6 months or more of prescribed under 38 U.S.C. 1117(d) gastrointestinal diseases).

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Note to paragraph (c)(2)(iii): Functional multisymptom illness include, but are United Arab Emirates, Oman, the Gulf gastrointestinal disorders are a group of not limited to: of Aden, the Gulf of Oman, the Persian conditions characterized by chronic or (i) Abnormal weight loss; Gulf, the Arabian Sea, the Red Sea, and recurrent symptoms that are unexplained by (ii) Cardiovascular signs or symptoms; the airspace above these locations. any structural, endoscopic, laboratory, or (iii) Fatigue; other objective signs of injury or disease and (Authority: 38 U.S.C. 1117, 1118) may be related to any part of the (iv) Gastrointestinal signs or gastrointestinal tract. Specific functional symptoms; § 5.267 Presumption of service connection gastrointestinal disorders include, but are not (v) Headache; for conditions associated with full-body limited to, irritable bowel syndrome, (vi) Joint pain; exposure to nitrogen mustard, sulfur functional dyspepsia, functional vomiting, (vii) Menstrual disorders; mustard, or Lewisite. functional constipation, functional bloating, (viii) Muscle pain; (a) Presumption of service connection. functional abdominal pain syndrome, and (ix) Neurologic signs and symptoms; VA will presume that the injuries and functional dysphagia. These disorders are (x) Neuropsychological signs or diseases listed in paragraph (b) of this commonly characterized by symptoms symptoms; section were incurred in or aggravated including abdominal pain, substernal by service when the evidence of record burning or pain, nausea, vomiting, altered (xi) Signs or symptoms involving the bowel habits (including diarrhea, respiratory system (upper or lower); establishes that the veteran: constipation), indigestion, bloating, (xii) Signs or symptoms involving (1) Underwent full-body exposure to postprandial fullness, and painful or difficult skin; and nitrogen mustard, sulfur mustard, or swallowing. Diagnosis of specific functional (xiii) Sleep disturbances. Lewisite during active military service; gastrointestinal disorders is made in (d) Definitions. For purposes of this and accordance with established medical section: (2) Subsequently developed an injury principles, which generally require symptom (1) Persian Gulf veteran means a or disease associated with a specific onset at least 6 months prior to diagnosis and veteran who served on active military agent, as shown in paragraph (b) of this the presence of symptoms sufficient to service in the Southwest Asia theater of section. diagnose the specific disorder at least 3 months prior to diagnosis. operations during the Persian Gulf War. (b) Listed injuries or diseases. The (2) The Southwest Asia theater of following table lists injuries or diseases (3) Signs and symptoms. Signs or operations means Iraq, Kuwait, Saudi that VA will consider associated with symptoms that may be manifestations of Arabia, the neutral zone between Iraq full-body exposure to nitrogen mustard, a medically unexplained chronic and Saudi Arabia, Bahrain, Qatar, the sulfur mustard, or Lewisite.

Associated with Associated with Associated with Injury or disease nitrogen mustard? sulfur mustard? Lewisite?

Acute nonlymphocytic leukemia ...... Yes ...... No ...... No. Asthma, chronic ...... Yes ...... Yes ...... Yes. Bronchitis, chronic ...... Yes ...... Yes ...... Yes. Conjunctivitis, chronic ...... Yes ...... Yes ...... No. Corneal opacities ...... Yes ...... Yes ...... No. Emphysema, chronic ...... Yes ...... Yes ...... Yes. Keratitis ...... Yes ...... Yes ...... No. Laryngeal cancer ...... Yes ...... Yes ...... No. Laryngitis, chronic ...... Yes ...... Yes ...... Yes. Lung cancer (except mesothelioma) ...... Yes ...... Yes ...... No. Nasopharyngeal cancer ...... Yes ...... Yes ...... No. Obstructive pulmonary disease, chronic ...... Yes ...... Yes ...... Yes. Scar formation ...... Yes ...... Yes ...... No. Squamous cell carcinoma of the skin ...... Yes ...... Yes ...... No.

(Authority: 38 U.S.C. 501(a)) (4) Cancer of the brain; (20) Multiple myeloma; and (5) Cancer of the breast; (21) Primary liver cancer (except if § 5.268 Presumption of service connection (6) Cancer of the colon; cirrhosis or hepatitis B is indicated). for diseases associated with exposure to (7) Cancer of the esophagus; ionizing radiation. (c) Radiation-risk activity. For (8) Cancer of the gall bladder; purposes of this section, radiation-risk (a) Eligibility. This section applies to (9) Cancer of the lung; a ‘‘radiation-exposed veteran.’’ That is, activity means: (10) Cancer of the ovary; (1) Onsite participation in a test any person who, while serving on active (11) Cancer of the pancreas; involving the atmospheric detonation of duty or as a member of a reserve (12) Cancer of the pharynx; component of the Armed Forces during (13) Cancer of the salivary gland; a nuclear device. For purposes of this a period of active duty for training or (14) Cancer of the small intestine; section, onsite participation means: inactive duty training, participated in a (15) Cancer of the stomach; (i) During the official operational radiation-risk activity. (16) Cancer of the thyroid; period of a nuclear test, defined in (b) Diseases presumed service (17) Cancer of the urinary tract (for paragraph (e) of this section, presence at connected. VA will presume that the purposes of this section, the term the test site, or performance of official following diseases were incurred in or urinary tract means the kidneys, renal military duties in connection with aggravated by service if they become pelves, ureters, urinary bladder, and ships, aircraft or other equipment used manifest in a radiation-exposed veteran urethra); in direct support of the nuclear test; at any time after service: (18) Leukemia (other than chronic (ii) During the 6-month period (1) Bronchiolo-alveolar carcinoma; lymphocytic leukemia); following the official operational period (2) Cancer of the bile ducts; (19) Lymphomas (except Hodgkin’s of a nuclear test, presence at the test site (3) Cancer of the bone; disease); or other test staging area to perform

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official military duties in connection (ii) For each of the 250 days, served (14) For Operation PLUMBBOB, the with completion of projects related to in a position that had exposures period May 28, 1957, through October the nuclear test including, but not comparable to a job that is or was 22, 1957; limited to, decontamination of monitored through the use of dosimetry (15) For Operation HARDTACK I, the equipment used during the nuclear test; badges. period April 28, 1958, through October 31, 1958; (iii) Service as a member of the Note to paragraph (c)(4): For purposes of garrison or maintenance forces on this paragraph (c)(4), the term day refers to (16) For Operation ARGUS, the period Eniwetok during the periods June 21, all or any portion of a calendar day. August 27, 1958, through September 10, 1951 through July 1, 1952; August 7, 1958; (5) Service before January 1, 1974, on 1956 through August 7, 1957; or (17) For Operation HARDTACK II, the Amchitka Island, Alaska, if the veteran November 1, 1958 through April 30, period September 19, 1958, through was exposed to ionizing radiation in the 1959; and October 31, 1958; (iv) Assignment to official military performance of duty related to the Long (18) For Operation DOMINIC I, the duties at Naval Shipyards involving the Shot, Milrow, or Cannikin underground period April 25, 1962, through decontamination of ships that nuclear tests. December 31, 1962; and (6) Service in a capacity that would participated in Operation Crossroads. (19) For Operation DOMINIC II/ (2) Service during the occupation of qualify the person for inclusion as a PLOWSHARE, the period July 6, 1962, Hiroshima or Nagasaki, Japan, by U.S. member of the Special Exposure Cohort through August 15, 1962. under section 3621(14) of the Energy forces during the period beginning on Note to § 5.268: If this section does not August 6, 1945, and ending on July 1, Employees Occupational Illness apply in a particular case, VA will consider 1946. This includes official military Compensation Program Act of 2000, 42 service connection under § 5.269, Direct duties within 10 miles of the city limits U.S.C. 7384l(14) if it had been service connection for diseases associated with exposure to ionizing radiation. of either Hiroshima or Nagasaki, Japan, performed as an employee of the that were required to perform or support Department of Energy. (d) Atmospheric detonation. For (Authority: 38 U.S.C. 1112(c), 1137) military occupation functions such as purposes of this section, the term Cross Reference: § 5.1, for the occupation of territory, control of the ‘‘atmospheric detonation’’ includes definition of ‘‘reserve component’’. population, stabilization of the underwater nuclear detonations. § 5.140, Determining former prisoner of government, demilitarization of the (e) Operational period. For purposes war status, for the definition of ‘‘former Japanese military, rehabilitation of the of this section, for tests conducted by prisoner of war’’. infrastructure, or deactivation and the U.S., the term operational period conversion of war plants or materials. means: § 5.269 Direct service connection for (3) Internment as a prisoner of war in (1) For Operation TRINITY, the period diseases associated with exposure to ionizing radiation. Japan during World War II, or service on July 16, 1945, through August 6, 1945; active duty in Japan immediately (2) For Operation CROSSROADS, the (a) Scope. This section does not following such internment, resulting in period July 1, 1946, through August 31, establish a presumption of service an opportunity for exposure to ionizing 1946; connection. It establishes standards and radiation comparable to that of the U.S. (3) For Operation SANDSTONE, the procedures VA will apply when a claim occupation forces in Hiroshima or period April 15, 1948, through May 20, for service connection is based on Nagasaki, Japan, during the period 1948; exposure to ionizing radiation during beginning August 6, 1945, and ending (4) For Operation RANGER, the active military service, and is for a July 1, 1946. This includes a former period January 27, 1951, through disease that is not presumed service prisoner of war who at any time during February 6, 1951; connected under § 5.268. Service the period August 6, 1945, through July (5) For Operation GREENHOUSE, the connection will not be granted under 1, 1946: period April 8, 1951, through June 20, this section unless the veteran meets all (i) Was interned within 75 miles of 1951; of the requirements of (1), (2), and (3) the city limits of Hiroshima or within (6) For Operation BUSTER-JANGLE, of this paragraph (a). If a veteran meets 150 miles of the city limits of Nagasaki; the period October 22, 1951, through these requirements, then before (ii) Can affirmatively show that he or December 20, 1951; adjudication the VA agency of original she worked within an area described in (7) For Operation TUMBLER- jurisdiction (AOJ) will refer the claim to paragraph (c)(3)(i) of this section SNAPPER, the period April 1, 1952, the Under Secretary for Benefits for although not interned in either area; through June 20, 1952; further consideration in accordance (iii) Immediately following (8) For Operation IVY, the period with paragraph (d) of this section. internment, performed official military November 1, 1952, through December (1) The veteran was exposed to duties described in paragraph (c)(2) of 31, 1952; ionizing radiation as a result of this section; or (9) For Operation UPSHOT- participation in the atmospheric testing (iv) Was repatriated through the port KNOTHOLE, the period March 17, 1953, of nuclear weapons, the occupation of of Nagasaki. through June 20, 1953; Hiroshima or Nagasaki, Japan, from (4) Official military duties on the (10) For Operation CASTLE, the September 1945 until July 1946 or any grounds of a gaseous diffusion plant period March 1, 1954, through May 31, other claimed in-service event; located in Paducah, Kentucky, 1954; (2) The veteran subsequently Portsmouth, Ohio, or the area identified (11) For Operation TEAPOT, the developed a radiogenic disease listed in as K25 at Oak Ridge, Tennessee, for a period February 18, 1955, through June paragraph (b) of this section; and total of at least 250 days before February 10, 1955; (3) The disease first became manifest 1, 1992, if, during such service the (12) For Operation WIGWAM, the within the period specified in paragraph veteran: period May 14, 1955, through May 15, (b) of this section. (i) Was monitored for exposure to 1955; (b) Radiogenic disease. For purposes radiation of external parts of the body (13) For Operation REDWING, the of this section, radiogenic disease by a dosimetry badge each of the 250 period May 5, 1956, through August 6, means a disease that may be induced by days at the plant; or 1956; ionizing radiation.

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(1) Listed diseases. The following radiogenic when they manifest within table lists diseases that VA will consider the associated manifestation period.

Disease Manifestation period

Bone cancer ...... No later than 30 years after exposure. Cancer (any other not listed) ...... 5 years or more after last exposure. Leukemia (all forms except chronic lymphatic (lymphocytic)) ...... At any time after exposure. Lymphomas other than Hodgkin’s disease ...... 5 years or more after last exposure. Non-malignant thyroid nodular disease ...... 5 years or more after last exposure. Parathyroid adenoma ...... 5 years or more after last exposure. Posterior subcapsular cataracts ...... 6 months or more after exposure. Tumors of the brain and central nervous system ...... 5 years or more after last exposure.

(2) Polycythemia vera. Public Law 98– from the proper custodian, as described assessment and any other evidence, 542 requires VA to determine whether in this paragraph (c). These records along with the veteran’s claims file, to sound medical and scientific evidence normally include, but are not limited to, the Under Secretary for Benefits for supports establishing a rule identifying the veteran’s Record of Occupational review. polycythemia vera as a radiogenic Exposure to Ionizing Radiation (DD (2) After the development in disease. VA has determined that sound Form 1141), if maintained; service paragraphs (c)(1) through (4) of this medical and scientific evidence does treatment records; dose records from the section has been completed, the AOJ not support including polycythemia radiation dosimetry office of the will decide the claim based on general vera on the list of known radiogenic veteran’s branch of military service; and principles of service connection without diseases under this regulation. Even so, other records that might contain forwarding the claims file to the Under VA will consider a claim based on the information pertaining to the veteran’s Secretary for Benefits for review if the assertion that polycythemia vera is a ionizing radiation dose in service. The evidence establishes that any of the radiogenic disease under the provisions AOJ will forward all such records to the following is true: of paragraph (b)(3) of this section. Under Secretary for Health, who will (i) The claimed disability or disease is (3) Other diseases. If a claimant prepare a dose assessment, to the extent not radiogenic (as provided in claims disability compensation for a feasible, based on available paragraphs (b)(1) through (3) of this disease based on ionizing radiation methodologies. As used in this section, section); exposure and that disease is not one ‘‘the Under Secretary for Health’’ (ii) The disease did not become listed in paragraph (b)(1) of this section, includes his or her designees. manifest during the time period VA will consider the claim under this (2) When a dose assessment obtained specified in paragraph (b)(1) of this section if the claimant has cited or filed under paragraph (c)(1) of this section is section; or competent scientific or medical reported as a range of doses to which a (iii) The veteran was either not evidence that the claimed condition is veteran may have been exposed, VA exposed to ionizing radiation in service a radiogenic disease. will presume exposure at the highest as claimed or the actual or estimated (c) Development of dose assessment level of the range reported. dose exposure was reported to be 0 rem. by a VA agency of original jurisdiction— (3) Evidence substantiating exposure. (e) Review and action by the Under (1) Dose assessment request. In all For purposes of paragraph (c)(1)(i) and Secretary for Benefits—(1) Referral to claims for service connection for a (ii) of this section, VA will not require the Under Secretary for Health. The radiogenic disease under this section, a veteran or a veteran’s survivors to Under Secretary for Benefits will review the AOJ will request a dose assessment produce evidence substantiating the evidence of record and may request to determine the likelihood that exposure, if the information in the an advisory medical opinion from the exposure to ionizing radiation in service veteran’s service records or other Under Secretary for Health as to caused the veteran’s disease. The AOJ records maintained by the Department whether the veteran’s disease resulted will request a dose assessment as of Defense is consistent with the from exposure to ionizing radiation in follows: assertion that the veteran was present service. The Under Secretary for Health (i) Atmospheric nuclear weapons test where and when the claimed exposure will also review any records obtained participation claims. In all claims based occurred. and the dose assessment(s) prepared. upon participation in atmospheric (4) Presence at a nuclear site. For The Under Secretary for Health will nuclear testing, the AOJ will request purposes of paragraphs (c)(1)(i) and (ii) prepare and send his or her advisory dose assessment from the appropriate of this section, if military records do not medical opinion to the Under Secretary office of the Department of Defense. establish presence at or absence from a for Benefits. (ii) Hiroshima and Nagasaki site at which exposure to ionizing (2) Reconciliation of dose occupation claims. In all claims based radiation is claimed to have occurred, assessments. (i) Reconciliation by the on participation in the American VA will concede the veteran’s presence Under Secretary for Benefits. Prior to occupation of Hiroshima or Nagasaki, at the site. Conceding presence under referral to the Under Secretary for Japan, prior to July 1, 1946, the AOJ will this section does not confer entitlement Health, the Under Secretary for Benefits request a dose assessment from the to the presumptive provisions of will reconcile any material difference appropriate office of the Department of § 5.268. between the dose assessment obtained Defense. (d) Submission to the Under Secretary through the development process in (iii) Other exposure claims. In all for Benefits. (1) After the development paragraph (c)(1) of this section and the other claims involving ionizing in paragraphs (c)(1) through (4) of this dose assessment from a credible source radiation exposure, the AOJ will request section has been completed, except as filed by or on behalf of the claimant. any available records concerning the provided in paragraph (d)(2) of this (ii) Independent expert opinion. The veteran’s exposure to ionizing radiation section, the AOJ will forward the dose Under Secretary for Benefits will

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request an opinion from an independent observations, findings, or conclusions service. The consultant will provide his expert when it is necessary to reconcile that are statistically and or her rationale supporting the opinion. a material difference described in epidemiologically valid, are statistically (6) Review of consultant’s opinion. paragraph (e)(2)(i) of this section. The significant, are capable of replication, The consultant will send the opinion to Director of the National Institutes of and are capable of withstanding peer the Under Secretary for Benefits who Health is responsible for selecting the review. The term sound medical will review it and transmit it with any independent expert. VA will forward evidence means observations, findings, comments to the AOJ for use in the assessments and supporting or conclusions that are consistent with adjudication of the claim. documentation of record to the current medical knowledge and are so (g) Adjudication of claim. The AOJ independent expert, who will then reasonable and logical as to serve as the will adjudicate the claim under the prepare a separate radiation dose basis of management of a medical generally applicable provisions of this assessment for consideration in condition. part, giving due consideration to all adjudicating the claim. For purposes of (3) Determination of no reasonable evidence of record, including any this paragraph (e): possibility of causation. If the Under opinions provided by the Under (A) The difference between the Secretary for Benefits determines there Secretary for Benefits, the Under claimant’s assessment and the dose is no reasonable possibility that the Secretary for Health, or any outside assessment derived from official veteran’s disease resulted from ionizing consultants, and the evaluations military records will ordinarily be radiation exposure in service, he or she published pursuant to 38 CFR 1.17. considered material if one assessment is will inform the AOJ in writing, stating (h) Supervening cause in claims based at least double the other assessment. the rationale for this conclusion. on exposure to ionizing radiation. In no (B) A dose assessment will be (4) Request for an outside consultant. case will service connection be considered to be from a ‘‘credible The Under Secretary for Benefits will established if evidence establishes that source’’ if prepared by a person or request an opinion from an outside a supervening condition or event persons certified by an appropriate consultant when, after review of the unrelated to service is more likely the professional body in the field of health evidence, including the opinion of the cause of the disease than was exposure physics, nuclear medicine or radiology Under Secretary for Health, the Under to ionizing radiation in service. and if based on analysis of the facts and Secretary for Benefits is unable to (Authority: 38 U.S.C. 501; Pub. L. 98–542, 98 circumstances of the particular claim. determine whether it is at least as likely Stat. 2725) (f) Opinion of the Under Secretary for as not, or whether there is no reasonable Cross Reference: § 5.1,for the Benefits. (1) General rule. When the possibility, that the veteran’s disease definition of ‘‘agency of original Under Secretary for Benefits receives resulted from ionizing radiation jurisdiction,’’,’’competent evidence,’’ the Under Secretary for Health’s exposure in service. The Under ‘‘service treatment records.’’ advisory medical opinion, he or she will Secretary for Health will select the review it, along with the evidence of consultant from outside VA, based on § 5.270 Presumption of service connection record. If the Under Secretary for the recommendation of the Director of for amyotrophic lateral sclerosis. Benefits is convinced that sound the National Cancer Institute. The (a) Development of amyotrophic scientific and medical evidence written request to the consultant will lateral sclerosis. Except as provided in supports the determination that it is at include copies of pertinent medical paragraph (b) of this section, the least as likely as not that the veteran’s records, and, where available, dose development of amyotrophic lateral disease resulted from ionizing radiation assessments from official sources, sclerosis manifested at any time after in service, he or she will inform the AOJ credible sources, and independent discharge or release from active military of this determination in writing. This experts. The request will identify the service is sufficient to establish service document must include the rationale for following elements: connection for that disease. the determination, including an (i) The disease, including the specific (b) Denial of service connection. evaluation of the claim based on the cell type and stage, if known, and when Service connection will not be following: the disease first became manifest; (i) The probable dose, in terms of dose established under this section if: (ii) The circumstances, including (1) The veteran did not have active, type, rate, and duration as a factor in date, of the veteran’s exposure; inducing the disease, taking into continuous service of 90 days or more; (iii) The veteran’s age, gender, and or If there is affirmative evidence that account any known limitations in the pertinent family history; dosimetry devices employed in its amyotrophic lateral sclerosis was not (iv) The veteran’s history of exposure measurement or the methodologies incurred during or aggravated by active to known carcinogens, occupationally or employed in its estimation; military service; otherwise; (ii) The relative sensitivity of the (2) The presumption of service involved tissue to induction of the (v) Evidence of any other effects connection is rebutted in accordance specific pathology by ionizing radiation; ionizing radiation exposure may have with § 5.260(c). (iii) The veteran’s gender and had on the veteran; and (Authority: 38 U.S.C. 501(a)(1)) pertinent family history; (vi) Any other information relevant to (iv) The veteran’s age at time of determination of causation of the § 5.271 Presumption of service connection exposure; veteran’s disease. for infectious diseases. (v) The time between exposure and (5) Consultant’s opinion. The (a) A disease listed in paragraph (b) of onset of the disease; and consultant will evaluate the claim based this section will be service connected if (vi) The extent to which exposure to on the factors specified in paragraph it becomes manifest in a veteran with a ionizing radiation, or other carcinogens, (f)(1) of this section. The consultant will qualifying period of service, provided outside of service may have contributed provide his or her opinion in writing the provisions of paragraph (c) of this to development of the disease. and state whether it is either likely, section are also satisfied. (2) Definitions. For purposes of unlikely, or at least as likely as not that (b) The diseases referred to in paragraph (e)(1) of this section, the term the veteran’s disease resulted from paragraph (a) of this section are the sound scientific evidence means exposure to ionizing radiation in following:

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(1) Brucellosis. commenced during a qualifying period section. These health effects and (2) Campylobacter jejuni. of service. There is no time limit for diseases are listed alphabetically and (3) Coxiella burnetii (Q fever). visceral leishmaniasis or tuberculosis to are not categorized by the level of (4) Malaria. have become manifest to a degree of 10 association stated in the National (5) Mycobacterium tuberculosis. percent or more disabling. Academy of Sciences report (see Table (6) Nontyphoid Salmonella. (2) For purposes of this section, the to § 5.271). If a veteran who has or had (7) Shigella. term qualifying period of service means an infectious disease listed in the table (8) Visceral leishmaniasis. either: also has a health effect identified in the (9) West Nile virus. (i) A period of active military service table as potentially related to that (c) The diseases listed in paragraph in Afghanistan after September 18, infectious disease, VA must determine, (b) of this section will be considered to 2001; or based on the evidence in each case, have been incurred in or aggravated by (ii) A period of active military service whether the infectious disease caused service under the circumstances in the Southwest Asia theater of the health effect for purposes of outlined in paragraphs (c)(1) and (2) of operations during the Persian Gulf War. determining entitlement to disability this section even though there is no The Southwest Asia theater of compensation. This does not preclude a evidence of such disease during the operations means Iraq, Kuwait, Saudi finding that other manifestations of period of service. Arabia, the neutral zone between Iraq disability or secondary conditions were (1) With three exceptions, the disease and Saudi Arabia, Bahrain, Qatar, the caused by an infectious disease. must have become manifest to a degree United Arab Emirates, Oman, the Gulf of 10 percent or more disabling no later of Aden, the Gulf of Oman, the Persian (2) If a veteran presumed service than 1 year after the date of separation Gulf, the Arabian Sea, the Red Sea, and connected for one of the diseases listed from a qualifying period of service as the airspace above these locations. in paragraph (b) of this section has one specified in paragraph (c)(2) of this (d) Long-term health effects of the health effects listed in the table, section. Malaria must have become potentially associated with infectious which manifests within the period manifest to a degree of 10 percent or diseases—(1) A report of the Institute of specified, or at any time if no period is more disabling no later than 1 year after Medicine of the National Academy of specified, VA will request a medical the date of separation from a qualifying Sciences has identified the following opinion as to whether it is at least as period of service or at a time when long-term health effects that potentially likely as not that the veteran’s infectious standard or accepted medical literature are associated with the infectious disease actually caused the associated indicate that the incubation period diseases listed in paragraph (b) of this health effect.

TABLE TO § 5.271—LONG-TERM HEALTH EFFECTS POTENTIALLY ASSOCIATED WITH INFECTIOUS DISEASES

Infectious disease Health effect

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.

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TABLE TO § 5.271—LONG-TERM HEALTH EFFECTS POTENTIALLY ASSOCIATED WITH INFECTIOUS DISEASES—Continued

Infectious disease Health effect

Mycobacterium tuberculosis ...... • Active tuberculosis. • 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.

§§ 5.272–5.279 [Reserved] propriety of an extra-schedular rating is (3) Service-connected hearing Rating Service-Connected Disabilities questionable. impairment in one ear compensable to (Authority: 38 U.S.C. 501(a), 1155) a degree of 10 percent or more disabling § 5.280 General rating principles. and nonservice-connected hearing (a) Use of rating schedule. VA will use § 5.281 Multiple 0 percent service- impairment in the other ear that meets the Schedule for Rating Disabilities in connected disabilities. the provisions of § 5.366. part 4 of this chapter to rate the degree VA will assign a 10-percent combined (4) Service-connected anatomical loss of disabilities in claims for disability rating to a veteran with two or more or loss of use of one hand or foot and compensation and in eligibility permanent service-connected nonservice-connected anatomical loss or determinations. Instructions for using disabilities that are each rated as 0 loss of use of the other hand or foot. the schedule are in part 4 of this percent disabling under the Schedule (5) Permanent service-connected chapter. for Rating Disabilities in part 4 of this disability of one lung rated as 50 (b) Extra-schedular ratings in unusual chapter, if the combined effect of such percent or more disabling and cases. (1) Disability compensation. To disabilities interferes with normal nonservice-connected disability of the accord justice to the exceptional case employability. VA cannot assign this 10 other lung. where the Veterans Service Center percent rating if the veteran has any (c) Offset of judgment, settlement, or (VSC) finds the VA Schedule for Rating other compensable rating. compromise—(1) Required offset. If a Disabilities to be inadequate to rate a (Authority: 38 U.S.C. 501(a), 1155) veteran receives money or property of specific service-connected disability, value in a judgment, settlement, or the Under Secretary for Benefits or the § 5.282 Special consideration for paired compromise from a cause of action for Director of the Compensation Service, organs and extremities. a qualifying nonservice-connected upon VSC submission, is authorized to (a) General rule. VA will pay disability involving an organ or approve on the basis of the criteria set disability compensation for the extremity described in paragraph (b) of forth in this paragraph (b) an extra- combination of service-connected and this section, VA will offset the value of schedular rating commensurate with the nonservice-connected disabilities such judgment, settlement, or average impairment of earning capacity involving paired organs and extremities compromise against the increased due exclusively to the disability. The described in paragraph (b) of this disability compensation payable under governing norm in these exceptional section as if the nonservice-connected this section. cases is a finding that the application of disability were service connected, but (2) Offset procedure. Beginning the the regular schedular standards is VA will not pay compensation for the first of the month after the veteran impractical because the disability is nonservice-connected disability if the receives the money or property as exceptional or unusual due to such veteran’s willful misconduct damages, VA will not pay the increased related factors as: proximately caused it. disability compensation payable under (i) Marked interference with (b) Qualifying combination of this section until the total amount of employment, or disabilities. Disability compensation such increased compensation that (ii) Frequent periods of under paragraph (a) of this section is would otherwise have been payable hospitalization. payable for the following disability equals the total amount of any money (2) Effective date. The effective date of combinations: received as damages and the fair market an extra-schedular rating, either (1) Service-connected impairment of value of any property received as granting or increasing disability vision in one eye and nonservice- damages. VA will not withhold the compensation, will be in accordance connected impairment of vision in the increased disability compensation with § 5.311 in original and reopened other eye if: payable before the end of the month in claims, and in accordance with § 5.312 (i) The impairment of vision in each which the money or property was in claims for increased benefits. eye is rated at a visual acuity of 20/200 received. (c) Advisory opinions. The VSC may or less; or (3) Exception for Social Security or submit to the Director of the (ii) The peripheral field of vision for workers’ compensation benefits. Compensation Service for advisory each eye is 20 degrees or less. Benefits received for the qualifying opinion cases in which it does not (2) Service-connected anatomical loss nonservice-connected disability under understand the application of the or loss of use of one kidney and Social Security or workers’ Schedule for Rating Disabilities in part nonservice-connected involvement of compensation laws are not subject to the 4 of this chapter or in which the the other kidney. offset described in paragraph (c)(1) of

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this section, even if the benefits are gainful occupation. The AOJ will assigned under the provisions of awarded in a judicial proceeding. consider the frequency and duration of § 5.283. (4) Duty to report receipt of judgment, totally incapacitating exacerbations (Authority: 38 U.S.C. 1155) settlement, or compromise. A veteran since incurrence of the original injury or entitled to receive increased disability disease and the periods of (b) Incarcerated veterans. VA will not compensation under this section must hospitalization for treatment in assign a total disability rating based on report to VA the total amount of any determining whether the average person individual unemployability for money and the fair market value of any could reestablish himself or herself in a compensation purposes while a veteran property received as damages described substantially gainful occupation. is incarcerated in a Federal, State, or local penal institution for conviction of in paragraph (c)(1) of this section. (b) Permanent total disability. VA will a felony if the rating would first become Expenses related to the cause of action, consider a total disability to be effective during such period of such as attorneys’ fees, cannot be permanent when an impairment of incarceration. However, VA will deducted from the total amount to be mind or body that makes it impossible reconsider the case to determine if reported. for the average person to follow a continued eligibility for such rating substantially gainful occupation is (Authority: 38 U.S.C. 1160) exists if a total disability rating based on reasonably certain to continue individual unemployability existed § 5.283 Total and permanent total ratings throughout the life of the disabled and unemployability. prior to incarceration for the felony and person. routine review was required. (a) Total disability ratings—(1) (1) VA will consider the following General. VA will consider total disabilities or conditions as constituting (Authority: 38 U.S.C. 5313(c)) disability to exist when any impairment a permanent total disability: (c) Program for vocational of mind or body renders it impossible (i) The permanent anatomical loss or rehabilitation. Each time VA assigns a for the average person to follow a loss of use of both hands, or of both feet, total disability rating based on substantially gainful occupation. VA or of one hand and one foot; individual unemployability, the agency generally will not assign total ratings for (ii) The anatomical loss or loss of of original jurisdiction will inform the temporary exacerbations or acute sight of both eyes; Vocational Rehabilitation and infectious diseases except where the (iii) Being permanently so Employment Service of the rating so the Schedule for Rating Disabilities in part significantly disabled as to need regular Vocational Rehabilitation and 4 of this chapter (the Schedule) aid and attendance; or Employment Service may offer to specifically prescribes total ratings for (iv) Being permanently bedridden. evaluate whether it is reasonably temporary exacerbations or acute (2) VA will consider an injury or feasible for the veteran to achieve a infectious diseases. For compensation disease of long-standing that is actually vocational goal. purposes, a total disability rating may be totally incapacitating as a permanent (Authority: 38 U.S.C. 1163) granted without regard to whether the total disability, if the probability of impairment is shown to be permanent. permanent improvement under § 5.285 Discontinuance of total disability (2) Schedular rating or total disability treatment is remote. ratings. rating based on individual (3) VA may not assign a permanent (a) General. VA will not reduce a total unemployability. VA may assign a total total disability rating as a result of any disability rating that was based on the rating for any disability or combination incapacity from acute infectious disease, severity of a person’s disability or of disabilities in the following cases: accident, or injury, unless there is disabilities without examination (i) The Schedule prescribes a 100 present the permanent anatomical loss showing material improvement in percent rating, or or loss of use of extremities or the physical or mental condition. VA may (ii) In a case in which VA assigns a permanent anatomical loss or loss of reduce a total disability rating that was rating of less than 100 percent, if the sight of both eyes, as described in based on the severity of a person’s veteran meets the requirements of § 4.16 paragraph (b)(1) of this section, the disability or disabilities without of this chapter or, in pension cases, the person is permanently so significantly examination if the rating was based on requirements of § 4.17 of this chapter. disabled as to need regular aid and clear error. (3) Ratings of total disability based on (1) VA will consider examination attendance or permanently bedridden, history. In the case of a disability that reports showing material improvement or when it is reasonably certain that has undergone some recent in conjunction with all the facts of following a decrease of the acute or improvement, VA may nonetheless record, including whether: assign a rating of total disability, temporary symptoms the person will (i) The veteran improved under the provided: continue to be totally disabled due to ordinary conditions of life, i.e., while (i) That the disability was severe residuals of the disease, accident, or working or actively seeking work; or enough in the past to warrant a total injury. (ii) The symptoms have been brought disability rating; (4) VA may consider the age of the under control by prolonged rest or by (ii) That the disability: disabled person in determining whether following a regimen which precludes (A) Required extended, continuous, or a total disability is permanent. work. intermittent hospitalization; (c) Insurance ratings. A rating of (2) If either circumstance in paragraph (B) Produced total industrial permanent and total disability for (a)(1)(ii) of this section applies, VA will incapacity for at least 1 year; or insurance purposes will have no effect not reduce a total disability rating until (C) Results in recurring, severe, on a rating for compensation or pension. VA has reexamined the person after a frequent, or prolonged exacerbations; (Authority: 38 U.S.C. 501(a), 1155) period of 3 to 6 months of employment. and (3) Paragraphs (a) introductory text, (iii) That it is the opinion of the § 5.284 Total disability ratings for (a)(1), and (a)(2) of this section do not agency of original jurisdiction (AOJ) disability compensation purposes. apply to a total rating that was purely that, despite the recent improvement of (a) General. Subject to the limitation based on hospital, surgical, or residence the physical condition, the veteran will in paragraph (b) of this section, total treatment, or individual be unable to adjust into a substantially disability compensation ratings may be unemployability.

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(b) Individual unemployability. (1) VA accordance with §§ 5.302 through 5.304, relative who is physically absent from may reduce a service-connected total does not exceed the following amounts: the household for a temporary purpose disability rating based on individual (i) $400 for a mother or father, or a or for reasons beyond the relative’s unemployability upon a showing of remarried parent and parent’s spouse, control. clear and convincing evidence of actual not living together, or $660 for a mother (d) Duty to report change in employability. and father, or a remarried parent and dependency status. If a veteran is (2) When a veteran with a total parent’s spouse, living together; or receiving additional disability disability rating based on individual (ii) $185 for each additional family compensation because of a parent’s unemployability is undergoing member, as defined by paragraph (c) of dependency and the parent’s income vocational rehabilitation, education, or this section. exceeds the applicable amount specified training, VA will not reduce the rating (2) If a parent meets the requirements in paragraph (a)(1) of this section, the because of that rehabilitation, of paragraph (a)(1) of this section, VA veteran must report an increase in the education, or training unless the AOJ will not consider net worth. parent’s income or net worth to VA receives: (b) Factual dependency. If a parent when the veteran acquires knowledge of (i) Evidence of marked improvement does not meet the requirements of the increase. Failure to report such an or recovery in physical or mental paragraph (a)(1) of this section, the increase may create an overpayment conditions that demonstrates veteran must establish dependency of subject to recovery by VA. affirmatively the veteran’s capacity to the parent based on the following rules: (e) Remarriage of a parent. pursue the vocation or occupation for (1) Income requirement. VA will find Dependency will not be discontinued which the training is intended to qualify dependency if the parent does not have solely because a parent has married or him or her; sufficient income to provide reasonable remarried after VA has granted (ii) Evidence of employment progress, maintenance for the parent, a parent’s additional disability compensation for a income earned, and prospects of spouse living together with the parent, dependent parent. Additional disability economic rehabilitation that and any additional family members, as compensation for a parent’s dependency demonstrates affirmatively the veteran’s defined in paragraph (c) of this section. will be continued if evidence is filed capacity to pursue the vocation or (i) Reasonable maintenance includes showing that the parent continues to occupation for which the training is not just basic necessities such as meet the requirement for a finding of intended to qualify him or her; or housing, food, clothing, and medical conclusive dependency or factual (iii) Evidence that the physical or care, but also other items generally dependency under this section. necessary to provide those conveniences mental demands of the course are (Authority: 38 U.S.C. 102, 1115, 1135) obviously incompatible with total and comforts of living consistent with disability. the parent’s reasonable style of life. § 5.301 [Reserved] (3) Neither participation in, nor the (ii) A finding that the parent’s income receipt of remuneration as a result of includes financial contributions from § 5.302 General income rules—parent’s dependency. participation in, a therapeutic or the veteran does not establish that the rehabilitation activity under 38 U.S.C. parent is the veteran’s dependent. VA (a) All payments included in income. 1718 will be considered evidence of will consider such contributions in VA will count all payments of any kind employability. connection with all of the other from any source in determining the (4) If a veteran with a total disability evidence when deciding factual income of a veteran’s parent, except as rating based on individual dependency. provided in § 5.304, Exclusions from unemployability begins a substantially (iii) Income of a minor family member income—parent’s dependency. For the gainful occupation, VA may not reduce from business or property will be definition of ‘‘payments’’, see § 5.370(h). the veteran’s rating solely on the basis considered income of the parent only if (b) Spousal income combined. The of having secured and followed such it is actually available to the veteran’s dependent parent’s income includes the substantially gainful occupation unless parent for the minor’s support. income of the parent and the parent’s the veteran maintains the occupation for (2) Net worth considered. (i) VA will spouse, unless the marriage has been a period of 12 consecutive months. For not find that dependency of a parent terminated or the parent is legally purposes of this paragraph (b)(4), VA exists when some part of the parent’s separated from his or her spouse. will not consider brief interruptions in net worth should reasonably be used for Income is combined whether the employment to be breaks in otherwise that parent’s maintenance. See § 5.414 parent’s spouse is the veteran’s other continuous employment. for the factors used to determine parent or the veteran’s stepparent. The whether net worth should reasonably be income of the parent’s spouse will be (Authority: 38 U.S.C. 501(a), 1155, 1163(a)) used for maintenance. subject to the same rules that are Cross Reference: §§ 5.170, Calculation (ii) Net worth of a minor family applicable to determining the income of of 5-year, 10-year, and 20-year periods member will be considered in the veteran’s parent. to qualify for protection, and 5.172, determining dependency of a parent (c) Income of family members under protection of continuous 20-year ratings. only if it is actually available to the 21 years of age. VA will count income veteran’s parent for the minor’s support. earned by a family member who is §§ 5.286–5.299 [Reserved] (c) Definition of family member. For under 21 years of age but will consider Additional Disability Compensation purposes of this section, the term family income from a business or property Based on a Dependent Parent member means a relative who lives with (including trusts) of such a family the parent, other than a spouse, whom member only if that income is actually § 5.300 Establishing dependency of a the parent is under a moral or legal available to the veteran’s parent for the parent. obligation to support. This includes, but support of that family member. For (a) Conclusive dependency. (1) VA is not limited to, a relative under the purposes of this section, ‘‘family will find that a veteran’s parent is legal age in the state where the parent member’’ is defined in § 5.300(c). dependent if the parent is not residing resides, a relative of any age who is (d) Income-producing property. VA in a foreign country and the parent’s dependent on the parent because of will count income from all property, monthly income, as counted in physical or mental incapacity, and a real or personal, in which a veteran’s

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parent has an interest. See § 5.410(f) for (3) The Social Security State based upon service in the Armed how VA determines ownership of Administration; Forces. property. (4) The Railroad Retirement Board; (g) Fire loss reimbursement. Proceeds (e) Calculation of income from profit (5) Any workmen’s compensation or from fire insurance. on the sale of property. The following employer’s liability statute; or (h) Profit from sale of principal rules apply when determining the (6) Legal damages collected for residence. Net profit from the sale of the amount of income a parent receives personal injury or death. parent’s principal residence. from net profit on the sale of business (c) Certain salary deductions not (1) Extent of exclusion. VA will not or non-business real or personal deductible. For purpose of calculating a count net profit realized from the sale of property, except for net profit on the parent’s income, a salary may not be the parent’s principal residence to the sale of a parent’s principal residence, reduced by the amount of deductions extent that it is applied within the which is governed by § 5.304(h). made under a retirement act or plan or calendar year of the sale, or the (1) Value deducted from sales price. for income tax withholding. following calendar year, to the purchase (i) If the parent purchased the property (Authority: 38 U.S.C. 102) price of another residence as the after VA established the veteran’s parent’s principal residence. entitlement to additional disability § 5.304 Exclusions from income—parent’s (2) Limitation on date of purchase of compensation based on the parent’s dependency. replacement residence. This exclusion dependency, VA will deduct the VA will exclude the following when does not apply if the parent applied the purchase price, including the cost of calculating income for the purpose of net profit from the sale to the price of improvements, from the selling price to establishing a parent’s dependency: a residence purchased earlier than the determine net profit. (a) Property rental value. The rental calendar year preceding the calendar (ii) If the parent purchased the value of a residence a parent owns and year of sale of the old residence. property before VA established the lives in. (3) Time limit for reporting veteran’s entitlement to additional (b) Certain waived retirement benefits. application of profit to purchase of disability compensation based on the Retirement benefits from any of the replacement residence. To qualify for parent’s dependency, VA will deduct following sources, if the benefits have this exclusion, the veteran must report the value of the property on the date of been waived pursuant to Federal statute: the application of the net profit from the entitlement from the selling price to (1) Civil Service Retirement and sale of the old residence to the purchase determine net profit. Disability Fund; of the replacement residence no later (2) Installment sales. If the parent (2) Railroad Retirement Board; than 1 year after the date it was so receives payments from the sale of the (3) District of Columbia for firemen, applied. property in installments, such payments policemen, or public school teachers; or (i) Payment for civic obligations. will not be considered income until the (4) Former U.S. Lighthouse Service. Payments received for discharge of jury total amount received is equal to the (c) Death gratuity. Death gratuity duty or other obligatory civic duties. purchase price of the property payments by the Secretary concerned (j) Increased inventory value of a (including cost of improvements), or, under 10 U.S.C. 1475 through 1480. business. The value of an increase of where paragraph (e)(1)(ii) of this section This includes death gratuity payments stock inventory of a business. applies, until the total amount received in lieu of payments under 10 U.S.C. (k) Employer contributions. An is equal to the value of the property on 1478 made to certain survivors of employer’s contributions to health and the date VA established the veteran’s Persian Gulf conflict veterans hospitalization plans for either an active entitlement to additional disability authorized by sec. 307, Public Law 102– or retired employee. compensation based on the parent’s 25, 105 Stat. 82. (l) Caregiver stipend. The stipend for dependency. Principal and interest (d) Certain VA benefit payments. The primary family caregivers authorized by received with each payment will not be following VA benefit payments: 38 U.S.C. 1720G(a)(3)(A)(ii)(V) and 38 counted separately. (1) Payments under 38 U.S.C. chapter CFR 71.40(c)(4). (Authority: 38 U.S.C. 102) 11, Compensation for Service- Connected Disability or Death; (m) Other payments. Payments listed § 5.303 Deductions from income—parent’s (2) Payments under 38 U.S.C. chapter in § 5.706. dependency. 13, Dependency and Indemnity (Authority: 38 U.S.C. 102) (a) Expenses of a business or Compensation for Service-Connected §§ 5.305–5.310 [Reserved] profession. VA will deduct from a Death; parent’s income necessary operating (3) Nonservice-connected VA Disability Compensation Effective Dates expenses of a business, farm, or disability and death pension payments; profession. See § 5.413 for how to (4) Payments under 38 U.S.C. 5121, § 5.311 Effective dates—award of disability compensation. calculate these expenses. Payment of certain accrued benefits (b) Expenses associated with upon death of a beneficiary; (a) Claim received no later than 1 year recoveries for death or disability. VA (5) Payments under 38 U.S.C. 2302, after discharge or release from active will deduct from a parent’s income Funeral expenses; and military service. If VA grants disability medical, legal, or other expenses (6) The veteran’s month-of-death rate compensation based on a claim VA incident to injury or death from paid to a surviving spouse under received no later than 1 year after the recoveries for such injury or death. For § 5.695. date the veteran was discharged or purposes of this paragraph (b), the (e) Certain life insurance payments. released from a continuous period of recovery may be from any of the Payments under policies of active military service during which the following sources: Servicemembers’ Group Life Insurance, veteran incurred the injury or disease, (1) Commercial disability, accident, U.S. Government Life Insurance, the effective date of the award is the life, or health insurance; National Service Life Insurance, or later of: (2) The Office of Workers’ Veterans’ Group Life Insurance. (1) The day after such discharge or Compensation Programs of the U.S. (f) State service bonuses. Payments of release from active military service; or Department of Labor; a bonus or similar cash gratuity by any (2) The date entitlement arose.

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(b) Claim received more than 1 year veteran has regained employability, VA § 5.315 Effective dates—additional after discharge or release from active will discontinue the TDIU rating and disability compensation based on decrease military service. If VA grants disability assign the existing schedular rating. in the net worth of a dependent parent. compensation based on a claim VA Assignment of the existing schedular (a) Scope. This rule applies under the received more than 1 year after the date rating and the reduction in disability following circumstances: the veteran was discharged or released compensation will be effective in (1) VA previously denied a claim or from a continuous period of active accordance with paragraph (e) of discontinued payments of additional military service during which the § 5.177. disability compensation based upon veteran incurred the injury or disease, (c) Failure to return employment parental dependency because of a the effective date of the award is the questionnaire. If a veteran fails to return parent’s net worth; date established by § 5.150(a). an employment questionnaire to VA (2) The denial or discontinuation within the time specified in VA Form (Authority: 38 U.S.C. 5110(a), (b)(1)) became final; and 21–4140, VA will discontinue the TDIU (3) Entitlement to additional disability § 5.312 Effective dates—increased rating and assign the existing schedular compensation based upon parental disability compensation. rating. Assignment of the existing dependency was subsequently (a) Applicability. This section schedular rating and the reduction in established, or reestablished, because of establishes the effective date of an disability compensation will be effective a decrease in the parent’s net worth. award of increased disability beginning the first day of the month (b) Payment of additional compensation based on: after the month VA last paid TDIU compensation. If a parent’s net worth (1) A higher disability rating under benefits. decreases so that additional disability subpart B of the Schedule for Rating (Authority: 38 U.S.C. 5112(a) and (b)(6)) compensation based on parental Disabilities in part 4 of this chapter. dependency is warranted, VA will pay (2) A higher disability rating under § 5.314 Effective dates—discontinuance of additional disability compensation as additional disability compensation based the extra-schedular provision in on parental dependency. follows: § 5.280(b). (1) For claims filed before the actual (a) Scope. This section applies to (3) A higher disability rating under decrease in net worth, effective the first discontinuance of additional disability § 4.16 of this chapter. day of the month after the month of the compensation paid to a veteran for a (4) An award or a higher rate of decrease; or dependent parent if that parent is no special monthly compensation. longer dependent. (2) For claims filed after the actual Note to paragraph (a): This section does (b) Discontinuance based on a change decrease in net worth, effective the first not establish the effective date of an award in a parent’s economic status. If VA day of the month after the receipt of a of secondary service connection under determines that a veteran’s parent is no new claim for additional disability § 5.246 or § 5.247 which is governed by longer dependent due to an compensation. § 5.311. improvement in economic status, the (Authority: 38 U.S.C. 501(a), 5110) (b) Effective date of increase—(1) additional disability compensation paid Claim received no later than 1 year after due to parental dependency will be §§ 5.316–5.319 [Reserved] increase. An award of increased discontinued as follows: Special Monthly Compensation: disability compensation will be effective (1) Increase in income. If dependency General on the date that the evidence warrants ends based on an increase in income, a higher disability rating, or an award or VA will discontinue paying the § 5.320 Determining need for regular aid higher rate of special monthly additional disability compensation on and attendance. compensation, if VA received a claim the first day of the month after the For purposes of this part, a person for increased disability compensation month in which the income increased. needs regular aid and attendance if he no later than 1 year after that date. (2) Increase in net worth. If or she meets either of the following (2) Claim received more than 1 year dependency ends based on an increase conditions: after increase. An award of increased in net worth, VA will discontinue (a) Person has need for assistance. disability compensation will be effective paying the additional disability The person, based on his or her on the date established by § 5.150(a) if compensation on the first day of the condition as a whole, has a temporary VA received a claim for increased calendar year after the year in which the or permanent need for assistance, which disability compensation more than 1 net worth increased. may be provided by a family member or year after the date that the evidence (c) Discontinuance based on a change other member of his or her household, warrants a higher disability rating, or an in a parent’s marital status. If VA as shown by the extent to which his or award or higher rate of special monthly determines that the marriage, her ability to perform any or all of the compensation. remarriage, annulment of a marriage, or following functions is impaired: divorce of a dependent parent resulted (1) Getting dressed or undressed. (Authority: 38 U.S.C. 5110(a) and (b)(2)) in the end of dependency of that parent, (2) Keeping clean and presentable. § 5.313 Effective dates—discontinuance of VA will discontinue paying the (3) Making frequent and necessary compensation for a total disability rating additional disability compensation adjustments to a prosthetic or based on individual unemployability. effective the first day of the month after orthopedic appliance. This does not (a) Scope. This section applies to the date the change in marital status include the adjustment of appliances discontinuance of a veteran’s total occurred. that able persons also cannot adjust disability rating based on individual (d) Discontinuance based on a without assistance, such as lacing at the unemployability (TDIU) after parent’s death. If a dependent parent back, supports, and belts. employability is regained or based on dies, VA will discontinue paying the (4) Eating or drinking, as a result of failure to return an employment additional disability compensation on the loss of coordination of the upper questionnaire to VA. the first day of the month after the extremities or extreme weakness. (b) Discontinuance on regaining month of death. (5) Attending to bowel and bladder employability. If VA determines that a (Authority: 38 U.S.C. 5112(b)(2) and (4)) needs.

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(6) Protecting himself or herself from (i) Needs regular aid and attendance (d) Natural elbow or knee action the hazards or dangers of his or her (see § 5.320); prevented when a prosthesis is in place daily environment. (ii) Is permanently bedridden; means that the veteran is unable to use (Authority: 38 U.S.C. 1114(l)–(m), (r)) (iii) Has certain disabilities or a prosthesis that requires the natural use combinations of disabilities; or of the elbow or knee joint. If there is no (b) Person is bedridden. The person is (iv) Has a spouse who needs regular movement of the joint (as in complete bedridden. Bedridden means the person aid and attendance. ankylosis or complete paralysis) and a must remain in bed due to his or her (2) Nonservice-connected disabilities. prosthesis is not used, VA will disability or disabilities based on VA will consider certain nonservice- determine entitlement to SMC based on medical necessity and not based on a connected disabilities in determining prevented natural elbow or knee action prescription of periods of intermittent entitlement to SMC. See § 5.323(c)(5) as if a prosthesis were in place. bed rest. See § 5.324(e) (regarding (contribution of nonservice-connected (e) Use of prosthesis prevented means entitlement to special monthly loss of use of creative organ to service- that the veteran’s disability prevents the compensation based on being connected loss of use of creative organ); use of prosthesis. This can establish the permanently bedridden). § 5.330(b) and (c) (bilateral deafness of veteran’s entitlement to SMC in two (Authority: 38 U.S.C. 1114(l)–(m), (r)) specified severity); and § 5.331(b) circumstances: (bilateral blindness as specified with (1) Anatomical loss near the shoulder. § 5.321 Additional disability compensation A veteran meets the requirements for for a veteran whose spouse needs regular bilateral deafness as specified). (3) Definitions. This section defines SMC based on anatomical loss of the aid and attendance. upper extremity (arm) near the shoulder (a) General entitlement. A veteran disabilities that establish entitlement to SMC and that are not defined in other if the anatomical loss prevents the use who has a service-connected disability of a prosthesis, and reamputation at a regulations. rating of at least 30 percent is entitled higher level that permits the use of a (b) Loss of use of a hand means the to special monthly compensation if his prosthesis is not possible. However, if hand functions no better than a or her spouse needs regular aid and the veteran cannot wear a prosthesis at prosthesis would function if attached to attendance, as defined in paragraphs (b) the present level of amputation of the the arm at a point of amputation below and (c) of this section. arm but could wear a prosthesis if there the elbow. In making this (b) Automatic eligibility. The spouse were a reamputation at a higher level, determination, VA will consider the will be considered to need regular aid VA will consider the veteran eligible and attendance if any of the following actual remaining function of the hand, only for SMC based on anatomical loss factors apply: including, but not limited to, whether or loss of use of the arm with factors (1) The spouse has corrected visual the hand can perform acts such as preventing natural elbow action with a acuity of 5/200 or less in both eyes; grasping or manipulation with the same prosthesis in place (see paragraph (d) of (2) The spouse has concentric proficiency as an amputation stump this section). contraction of the visual field to 5 with prosthesis. Complete ankylosis of (2) Anatomical loss near the hip. A degrees or less in both eyes; or two major joints of an upper extremity veteran meets the requirements for SMC (3) The spouse is a patient in a is an example of a situation that will based on anatomical loss of the lower nursing home because of mental or constitute loss of use of the hand. The extremity (leg) near the hip if the physical incapacity. major joints of the upper extremity are anatomical loss prevents the use of a (c) Factual need. If the spouse does the shoulder, elbow, and wrist. prosthesis, and reamputation at a higher not meet the criteria in paragraph (b) of (c) Loss of use of a foot means the foot level that permits the use of a prosthesis this section, the spouse will be functions no better than a prosthesis is not possible. However, if the veteran considered to need regular aid and would function if attached to the leg at cannot wear a prosthesis at the present attendance if he or she meets the criteria a point of amputation below the knee. level of amputation of the leg but could of § 5.320. In making this determination, VA will wear a prosthesis if there were a re- (Authority: 38 U.S.C. 1115) consider the actual remaining function amputation at a higher level, VA will of the foot, including, but not limited to, Cross Reference: § 5.1, for the consider the veteran eligible only for whether the foot can perform acts such definition of ‘‘nursing home’’. SMC based on anatomical loss or loss of as balance or propulsion with the same use of the leg with factors preventing § 5.322 Special monthly compensation: proficiency as an amputation stump natural knee action with a prosthesis in general information and definitions of with prosthesis. Examples of situations place (see paragraph (d) of this section). disabilities. that will constitute loss of use of a foot (f) Visual acuity of 5/200 or less. If the (a) Scope. (1) Special monthly include: veteran has actual visual acuity better compensation (SMC). Multiple (1) Extremely unfavorable complete than 5/200 but is nevertheless assigned regulations (§§ 5.321 and 5.323 through ankylosis of the knee, that is, the knee a disability rating under the Schedule 5.333) allow SMC to a veteran who has fixed in flexion at an angle of 45 degrees for Rating Disabilities in part 4 of this certain service-connected disabilities. or more; chapter based on visual acuity of 5/200, Except as specified in paragraph (a)(2) (2) Complete ankylosis of two major the veteran is not considered to have of this section, the disabilities referred joints of the lower extremity, that is, of visual acuity of 5/200 or less for to in §§ 5.323 through 5.333 must be the hip, knee, or ankle; purposes of eligibility for SMC. See service connected. The monetary rates (3) Shortening of the lower extremity § 4.79 of this chapter. of payment of SMC are found in 38 of 3.5 inches or more; and (g) Loss of use or blindness of one eye, U.S.C. 1114 and 1115(1)(E). They are (4) Complete paralysis of the external having only light perception means that also on the Internet at http:// popliteal nerve (common peroneal) and the veteran is unable to recognize test www.va.gov and are available from any resulting foot drop, accompanied by letters at 1 foot and cannot perceive VA regional office. Under 38 U.S.C. characteristic organic changes including objects or hand movements, or count 1114 and 1115(1)(E), a veteran is trophic and circulatory disturbances fingers, at a distance of 3 feet. A veteran entitled to SMC if he or she receives and other concomitants that confirm is eligible for SMC under this paragraph disability compensation and: complete paralysis of the nerve. (g) if he or she meets the criteria in the

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preceding sentence, even if the veteran addition to the losses used to establish a creative organ even if the veteran uses can perceive objects or hand entitlement under 38 U.S.C. 1114(l) prescription medications or mechanical movements, or can count fingers, at through (n), or (p), as long as the devices to treat the erectile dysfunction. distances of less than 3 feet. See § 4.79 combined monthly disability This rule applies regardless of whether of this chapter. compensation does not exceed the such treatment is effective. (Authority: 38 U.S.C. 501(a), 1114) monthly rate provided by 38 U.S.C. (5) SMC for anatomical loss. SMC 1114(o). under 38 U.S.C. 1114(k) is payable for Special Monthly Compensation: (ii) A disability for which SMC is paid a service-connected anatomical loss of a Specific Statutory Bases under 38 U.S.C. 1114(k) may not be a creative organ even if it is preceded by basis for a higher level of SMC under 38 § 5.323 Special monthly compensation a nonservice-connected loss of use. under 38 U.S.C. 1114(k). U.S.C. 1114(l) through (n). However, VA Examples of this include, but are not will pay SMC under 1114(k) (a) Basic entitlement. Special monthly limited to, the following factors: concurrently with SMC under 1114(l) compensation (SMC) under 38 U.S.C. (i) The veteran had a vasectomy through (n) as long as the same 1114(k) is payable to a veteran who has before military service with the disability is not the basis for SMC under the following disabilities: anatomical loss or loss of use of one both 1114(k) and either (I), (m), or (n). (1) Anatomical loss or loss of use of testicle during military service; The total combined rate of SMC cannot one hand; (ii) The veteran had a vasectomy exceed the amount set forth in 38 U.S.C. (2) Anatomical loss or loss of use of following military service with a 1114(o). one foot; subsequent prostatectomy as a result of (3) Exclusion. The additional (3) Anatomical loss or loss of use of service-connected prostate cancer; allowance for regular aid and both buttocks; (iii) The veteran had impotence as a attendance or a higher level of care (4) Anatomical loss or loss of use of result of a nonservice-connected provided by 38 U.S.C. 1114(r) is not one or more creative organs; psychiatric condition with subsequent subject to the limitations of paragraph (5) Blindness of one eye having only prostatectomy due to service-connected (b) of this section regarding maximum light perception; prostate cancer; or monthly disability compensation (6) Deafness of both ears having (iv) The veteran had a tubal ligation payable under 38 U.S.C. 1114(k) in absence of air and bone conduction; before service with a subsequent (7) Complete organic aphonia with combination with other rates. oophorectomy due to service-connected (c) Creative organ. (1) Definition. constant inability to communicate by injury or disease. Creative organ means an organ directly speech; or (6) SMC for loss due to elective involved in reproduction. (8) In the case of a female veteran, surgery. SMC under 38 U.S.C. 1114(k) is (2) Anatomical loss. Anatomical loss either of the following factors: not payable when anatomical loss or of a creative organ exists in any of the (i) Anatomical loss of 25 percent or loss of use of a creative organ resulted following circumstances: from elective surgery performed after more of tissue from a single breast or (i) Acquired absence of one or both military service. However, if the elective both breasts in combination (including, testicles (other than undescended surgery after service was necessary to but not limited to, loss by mastectomy testicles); correct an injury caused by surgery or partial mastectomy); or (ii) Acquired absence of one or both during military service, SMC under 38 (ii) Treatment of breast tissue with ovaries; or radiation (‘‘treatment’’ includes (iii) Acquired absence of other U.S.C. 1114(k) is payable. Surgery therapeutic procedures but not creative organs. performed based on sound medical diagnostic procedures). (3) Loss of use. Loss of use of a advice for relief of a pathological Cross References: §§ 5.322(b) and (c), creative organ exists in any of the condition or to prevent possible future respectively (criteria to determine following circumstances: pathological consequences is not anatomical loss or loss of use of a hand (i) The diameters of the affected considered to be elective surgery. or of a foot); 5.322(g) (criteria to testicle are reduced to one-third of the (7) Atrophy. Atrophy resulting from determine loss of use or blindness of corresponding diameters of the normal mumps followed by orchitis in service one eye, having only light perception). testicle; is presumed service connected. Because (b) Limitations—(1) Combining ratings (ii) The diameters of the affected atrophy is usually perceptible no later under 38 U.S.C. 1114(k) with ratings testicle are reduced to one-half or less than 1 to 6 months after infection under 38 U.S.C. 1114(a) through (j), or of the corresponding normal testicle subsides, an examination more than 6 (s). SMC under 38 U.S.C. 1114(k) is with changes in consistency of the months after the remission of orchitis payable in addition to the disability affected testicle (harder or softer) when demonstrating a normal genitourinary compensation authorized by 38 U.S.C. compared to the normal testicle; system will be considered in 1114(a) through (j), or (s), subject to the (iii) Absence of spermatozoa proven determining if the presumption is following limitation: The combined rate by biopsy performed with the informed rebutted. of disability compensation must not consent of the veteran; or (d) Determining loss of use of both exceed the monthly rate provided by 38 (iv) Medical evidence shows that, due buttocks. (1) General rule. Loss of use of U.S.C. 1114(l) when authorized in to injury or disease, reproduction is not both buttocks exists if there is severe conjunction with any of the rates possible without medical intervention. damage by injury or disease to muscle provided by 38 U.S.C. 1114(a) through This could occur if the veteran has: group XVII, bilaterally, (see §§ 4.56 and (j), or (s). (A) In the case of paired creative 4.73 of this chapter) and additional (2) Combining ratings under 38 U.S.C. organs, the loss of function of at least disability making it impossible for the 1114(k) with ratings under 38 U.S.C. one such organ; or person, without assistance, to rise from 1114(l) through (n), or (p). (i) If the (B) In the case of an unpaired creative a seated position and from a stooped veteran has entitlement under 38 U.S.C. organ, loss of function. position (fingers to toes position) and to 1114(l) through (n), or (p), SMC under (4) SMC for erectile dysfunction. SMC maintain postural stability (pelvis upon 38 U.S.C. 1114(k) is payable for each under 38 U.S.C. 1114(k) is payable for head of femur). The cited assistance anatomical loss or loss of use in erectile dysfunction as the loss of use of may be provided by the person’s hands

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or arms, and, in the matter of postural § 5.325 Special monthly compensation at (g) Blindness in both eyes having only stability, by a special appliance. the intermediate rate between 38 U.S.C. light perception. (2) With SMC for lower extremities. 1114(l) and (m). (h) Blindness of one eye with visual The receipt of SMC for anatomical loss VA will pay special monthly acuity of 5/200 or less or with or loss of use of both lower extremities compensation at the intermediate rate concentric contraction of the visual field under 38 U.S.C.1114 (l) through (n) does between 38 U.S.C. 1114(l) and (m) for to 5 degrees or less; and not prevent the receipt of SMC under 38 any of the combinations of disabilities (1) Anatomical loss of the other eye; U.S.C. 1114(k) for loss of use of both listed in paragraphs (a) through (d) of or buttocks if appropriate tests clearly this section. The intermediate rate is the (2) Blindness without light perception substantiate there is such additional loss arithmetic mean between the rates for of the other eye. of use. 38 U.S.C. 1114(l) and (m), rounded (i) Blindness in both eyes leaving the (e) Deafness. Deafness of both ears, down to the next lower dollar. veteran so significantly disabled as to having absence of air and bone (a) Anatomical loss or loss of use of need regular aid and attendance. If the conduction, exists if an authorized VA one leg with factors preventing natural veteran has visual acuity of 5/200 or less audiology examination shows bilateral knee action with prosthesis in place and in both eyes or concentric contraction of hearing loss equal to or greater than the anatomical loss or loss of use of the the visual field to 5 degrees or less in bilateral hearing loss required for a other foot. both eyes, then entitlement to maximum rating under the Schedule for (b) Anatomical loss or loss of use of compensation at the 38 U.S.C. 1114(m) Rating Disabilities in part 4 of this one arm with factors preventing natural rate will be determined on the facts in chapter. elbow action with prosthesis in place the individual case. (f) Aphonia. Complete organic and anatomical loss or loss of use of one aphonia exists if a person has a foot. (Authority: 38 U.S.C. 1114(m), (p)) disability of the speech organs that (c) Anatomical loss or loss of use of Cross References: §§ 5.320, constantly prevents communication by one leg with factors preventing natural Determining need for regular aid and speech. knee action with prosthesis in place and attendance; 5.322, Special monthly (Authority: 38 U.S.C. 1114(k)) anatomical loss or loss of use of one compensation: general information and hand. definitions of disabilities (criteria for the § 5.324 Special monthly compensation (d) Blindness of one eye with visual disabilities listed in § 5.326); 5.330, under 38 U.S.C. 1114(l). acuity of 5/200 or less, or concentric Special monthly compensation under 38 Special monthly compensation (SMC) contraction of the visual field to 5 U.S.C. 1114(o) (combining awards made under 38 U.S.C. 1114(l) is payable to a degrees or less of one eye; and blindness under §§ 5.324, 5.326, or 5.328). See veteran who has any of the following of the other eye, having only light also § 4.76 of this chapter, Examination disabilities: perception. of field [of] vision (criteria for blindness (a) Anatomical loss or loss of use of (Authority: 38 U.S.C. 1114(p))— based on concentric contraction of the both feet. visual field). (b) Anatomical loss or loss of use of Cross Reference: § 5.322, Special one hand and one foot. monthly compensation: General § 5.327 Special monthly compensation at (c) Each eye having either: information and definitions of the intermediate rate between 38 U.S.C. (1) Blindness with visual acuity of 5/ disabilities (criteria for the disabilities 1114(m) and (n). 200 or less under § 5.322(f); or listed in § 5.325). VA will pay special monthly (2) Concentric contraction of the compensation at the intermediate rate visual field to 5 degrees or less. § 5.326 Special monthly compensation under 38 U.S.C. 1114(m). between 38 U.S.C. 1114(m) and (n) for (d) Disability or disabilities causing any of the combinations of disabilities the veteran to be permanently Special monthly compensation under 38 U.S.C. 1114(m) is payable for any of listed in paragraphs (a) through (e) of bedridden, which means evidence this section. The intermediate rate is the shows that the veteran must remain in the following combinations of disabilities: arithmetic mean between the rates for bed and that the confinement to bed 38 U.S.C. 1114(m) and (n), rounded will continue throughout his or her (a) Anatomical loss or loss of use of both hands. down to the nearest dollar. lifetime. (a) Anatomical loss or loss of use of (e) Disability or disabilities (b) Anatomical loss or loss of use of one arm with factors preventing natural establishing the veteran’s need for both legs with factors preventing natural elbow action with prosthesis in place regular aid and attendance under knee action with prosthesis in place. and anatomical loss or loss of use of the § 5.320. Unless the veteran is entitled to (c) Anatomical loss of one leg with other hand. additional SMC under 38 U.S.C. 1114(r) factors preventing the use of a prosthetic (b) Anatomical loss or loss of use of (see § 5.332), VA will award SMC under appliance and anatomical loss or loss of 38 U.S.C. 1114(l) based on permanently use of the other foot. one leg with factors preventing natural bedridden status if the veteran is (d) Anatomical loss or loss of use of knee action with prosthesis in place and permanently bedridden (see paragraph one arm with factors preventing the use anatomical loss of the other leg with (d) of this section) rather than on the of a prosthetic appliance and anatomical factors preventing the use of a prosthetic need for regular aid and attendance. loss or loss of use of one foot. appliance. (e) Anatomical loss or loss of use of (c) Anatomical loss of one arm with (Authority: 38 U.S.C. 1114(l)) one arm with factors preventing natural factors preventing the use of a prosthetic Cross References: See §§ 5.320(b), elbow action with prosthesis in place appliance and anatomical loss or loss of Person is bedridden; 5.322(b), (c), and anatomical loss or loss of use of one use of one leg with factors preventing Special monthly compensation: general leg with factors preventing natural knee natural knee action with prosthesis in information and definitions of action with prosthesis in place. place. disabilities; 5.330, Special monthly (f) Anatomical loss of one leg with (d) Anatomical loss or loss of use of compensation under 38 U.S.C. 1114(o) factors preventing the use of a prosthetic one arm with factors preventing natural (combining awards made under appliance and anatomical loss or loss of elbow action with prosthesis in place §§ 5.324, 5.326, or 5.328). use of one hand. and anatomical loss of one leg with

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factors preventing the use of a prosthetic appliance. The intermediate rate is the monthly compensation under 38 U.S.C. appliance. arithmetic mean between the rates for 1114(n); 5.329 Special monthly (e) Blindness of one eye, having only 38 U.S.C. 1114(n) and (o), rounded compensation at the intermediate rate light perception; and down to the next lower dollar. between 38 U.S.C. 1114(n) and (o); (1) Anatomical loss of the other eye; (Authority: 38 U.S.C. 1114(p)) 5.332, Additional allowance for regular or aid and attendance under 38 U.S.C. (2) Blindness without light perception Cross References: §§ 5.322, Special 1114(r)(1) or for a higher level of care of the other eye. monthly compensation: General under 38 U.S.C. 1114(r)(2) (criteria information and definitions of (Authority: 38 U.S.C. 1114(p)) based in part on the disabilities listed in disabilities; 5.328, Special monthly § 5.330). Cross References: §§ 5.322, Special compensation under 38 U.S.C. 1114(n) monthly compensation: General (criteria for the disabilities listed in § 5.331 Special monthly compensation information and definitions of § 5.329). under 38 U.S.C. 1114(p). disabilities; 5.326, Special monthly (a) Intermediate or next higher level of compensation under 38 U.S.C. 1114(m). § 5.330 Special monthly compensation special monthly compensation. In the under 38 U.S.C. 1114(o). event the veteran’s disabilities exceed § 5.328 Special monthly compensation VA will pay special monthly the requirements for any of the rates under 38 U.S.C. 1114(n). compensation (SMC) under 38 U.S.C. prescribed under §§ 5.324 through VA will pay special monthly 1114(o) for any of the following 5.329, VA will pay special monthly compensation under 38 U.S.C. 1114(n) combinations of disabilities: compensation (SMC) under 38 U.S.C. for any of the combinations of (a) Anatomical loss of both arms with 1114(p) as provided in paragraphs (b) disabilities listed in paragraphs (a) factors preventing the use of prosthetic through (f) of this section. However, the through (e) of this section. appliances. payment cannot exceed the rate under (b) Bilateral deafness rated at 60 (a) Anatomical loss or loss of use of 38 U.S.C. 1114(o). An intermediate rate percent or more disabling, even if the both arms with factors preventing authorized by this section is the hearing impairment in one ear is natural elbow action with prosthesis in arithmetic mean between the two rates nonservice connected, in combination place. of SMC, rounded down to the next with blindness with bilateral visual (b) Anatomical loss of one arm with lower dollar. factors preventing the use of a prosthetic acuity of 20/200 or less. (b) Bilateral blindness in combination (c) Total deafness in one ear, or appliance and anatomical loss or loss of with deafness. (1) Total deafness of one bilateral deafness rated at 40 percent or use of one hand. ear. Blindness in both eyes meeting the more disabling, even if the hearing (c) Anatomical loss of both legs with criteria of § 5.324(c), § 5.325(d), or impairment in one ear is nonservice factors preventing the use of prosthetic § 5.326(h) or (i), with service-connected connected, in combination with service- appliances. total deafness in one ear, entitles the connected blindness of both eyes having (d) Anatomical loss of one arm with veteran to the next higher intermediate only light perception or less vision. factors preventing the use of a prosthetic rate. If the veteran is already entitled to appliance and anatomical loss of one leg (d) Loss of use of both lower extremities together with loss of anal an intermediate rate, the veteran will be with factors preventing the use of a entitled to the next higher rate under 38 prosthetic appliance. and bladder sphincter control. VA will consider that the requirement of loss of U.S.C. 1114. (e) Anatomical loss of both eyes, (2) Bilateral deafness rated 10 or 20 anal and bladder sphincter control is blindness without light perception in percent disabling. Blindness in both met even though incontinence has been both eyes, or anatomical loss of one eye eyes meeting the criteria of § 5.326(g), overcome under a strict regimen of and blindness without light perception § 5.327(e), or § 5.328(e), with bilateral rehabilitation training and/or other in the other eye. deafness rated at 10 percent or 20 auxiliary measures. (Authority: 38 U.S.C. 1114(n), (p)) (e) Disabilities entitling the veteran to percent disabling (even if the hearing Cross References: §§ 5.322, Special two or more of the monetary rates impairment in one ear is nonservice monthly compensation: General provided in 38 U.S.C. 1114(l) through connected) entitles the veteran to the information and definitions of (n), without considering any disabilities next higher intermediate rate. If the disabilities; 5.326, Special monthly twice. veteran is already entitled to an compensation under 38 U.S.C. 1114(m); (1) Separate and distinct disabilities. intermediate rate, the veteran will be 5.327, Special monthly compensation at Entitlement under this paragraph (e) entitled to the next higher rate under 38 the intermediate rate between 38 U.S.C. must be based on separate, distinct U.S.C. 1114. 1114(m) and (n) (criteria for the disabilities. (3) Bilateral deafness rated at least 30 disabilities listed in § 5.328); 5.330, (2) Common cause. A common cause percent disabling. Blindness in both Special monthly compensation under 38 of disabilities that are otherwise eyes, meeting the criteria of § 5.324(c), U.S.C. 1114(o) (combining awards made separate and distinct will not preclude § 5.325(d), § 5.326(g), (h), or (i), under §§ 5.324, 5.326, or 5.328). entitlement to SMC under this § 5.327(e), or § 5.328(e), with bilateral paragraph (e). For example, a veteran deafness rated 30 percent or more § 5.329 Special monthly compensation at with anatomical loss or loss of use of disabling (even if the hearing the intermediate rate between 38 U.S.C. impairment in one ear is nonservice 1114(n) and (o). both hands and both feet resulting from a common cause would nevertheless be connected) entitles the veteran to the VA will pay special monthly entitled to SMC. next higher rate under 38 U.S.C. 1114. compensation at the intermediate rate If the veteran is already entitled to an between 38 U.S.C. 1114(n) and (o) for (Authority: 38 U.S.C. 1114(o)) intermediate rate, the veteran will be anatomical loss or loss of use of one arm Cross References: §§ 5.320, entitled to the next higher intermediate with factors preventing natural elbow Determining need for regular aid and rate. action with prosthesis in place and attendance; 5.322, Special monthly (c) Bilateral blindness in combination anatomical loss of the other arm with compensation: General information and with anatomical loss or loss of use of a factors preventing the use of a prosthetic definitions of disabilities; 5.328, Special hand or foot. Blindness in both eyes,

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meeting the criteria of § 5.324(c), 50 percent or more disabling without entitlement to the maximum rate under § 5.325(d), § 5.326(g), (h), or (i), regard to the basis for entitlement to 38 U.S.C. 1114(o) or (p), or to the § 5.327(e), or § 5.328(e), combined with SMC under §§ 5.324 through 5.329. intermediate rate between 38 U.S.C. any of the disabilities described in this (3) Permanent residuals of 1114(n) and (o) plus the rate under 38 paragraph (c)). tuberculosis. Permanent residuals of U.S.C. 1114(k), or is based on an (1) Anatomical loss or loss of use of tuberculosis, and not the graduated independent factual determination. hand. Anatomical loss or loss of use of ratings for arrested tuberculosis, may (b) Criteria for additional allowance one hand entitles the veteran to the next serve as the basis for the independent 50 under 38 U.S.C. 1114(r)(1). A veteran is higher statutory rate under 38 U.S.C. percent disability rating. entitled to an additional allowance 1114. If the veteran is already entitled (e) Additional independent disability under 38 U.S.C. 1114(r)(1) when all of to an intermediate rate, the veteran will rated 100 percent. (1) General rule. If a the following conditions are met: be entitled to the next higher veteran is entitled to SMC at one of the (1) The veteran is entitled to the intermediate rate. rates payable under §§ 5.324 through maximum rate under 38 U.S.C. 1114(o) (2) Anatomical loss or loss of use of 5.329 and has a single permanent or (p), or to the intermediate rate foot rated at least 50 percent disabling. disability that is independently rated between 38 U.S.C. 1114(n) and (o) plus Anatomical loss or loss of use of one 100 percent disabling, VA will award the rate under 38 U.S.C. 1114(k); foot which by itself or in combination the veteran the next higher rate under (2) The veteran needs regular aid and with another compensable disability 38 U.S.C. 1114. If the veteran is attendance under § 5.320; and would be rated at 50 percent or more receiving SMC at an intermediate rate, (3) The veteran is not hospitalized at disabling, entitles the veteran to the VA will award to the next higher U.S. Government expense. next higher rate under 38 U.S.C. 1114. intermediate rate. The single permanent (c) Criteria for additional allowance If the veteran is already entitled to an disability must be independently rated under 38 U.S.C. 1114(r)(2)—(1) General intermediate rate, the veteran will be 100 percent disabling without regard to criteria. A veteran is entitled to an entitled to the next higher intermediate individual unemployability. The rate additional allowance under 38 U.S.C. rate. payable under this paragraph (e) cannot 1114(r)(2), instead of the allowance (3) Anatomical loss or loss of use of be paid concurrently with the 50 under 38 U.S.C. 1114(r)(1), when all of foot rated less than 50 percent percent-or-more rate payable under the following conditions are met: disabling. Anatomical loss or loss of use paragraph (d) of this section. (i) The veteran is entitled to the of one foot which is rated less than 50 (2) Independently rated. For the maximum rate under 38 U.S.C. 1114(o) percent disabling and which is the only definition of ‘‘independently rated’’, see or (p), or to the intermediate rate compensable disability other than paragraph (d)(2) of this section. between 38 U.S.C. 1114(n) and (o) plus bilateral blindness, entitles the veteran (3) Permanent residuals of the rate under 38 U.S.C. 1114(k); to the next higher intermediate rate. If tuberculosis. Permanent residuals of (ii) The veteran needs regular aid and the veteran is already entitled to an tuberculosis, and not the graduated attendance under § 5.320; intermediate rate, the veteran will be ratings for arrested tuberculosis, may (iii) The veteran needs a ‘‘higher level entitled to the next higher rate under 38 serve as the basis for the independent of care’’ (as defined in paragraph (c)(2) U.S.C. 1114. 100 percent disability rating. of this section); (d) Additional independent disability (f) Three extremities. Anatomical loss, (iv) Without the higher level of care, or disabilities rated 50 percent or more loss of use, or a combination of the veteran would require disabling. (1) General rule. If a veteran anatomical loss and loss of use of three hospitalization, nursing home care, or is entitled to SMC under one of the rates extremities entitles the veteran to the other residential institutional care; and payable under §§ 5.324 through 5.329 next higher intermediate rate. If the (v) The veteran is not hospitalized at and also has a permanent disability, or veteran is already entitled to an U.S. Government expense. combination of permanent disabilities, intermediate rate, the veteran will be (2) Higher level of care. For purposes which are independently rated at 50 entitled to the next higher rate under 38 of this paragraph (c), a veteran needs a percent or more disabling, VA will U.S.C. 1114. VA will combine the ‘‘higher level of care’’ whenever the award the veteran SMC at the next anatomical loss or loss of use of veteran requires personal health-care higher intermediate rate. If the veteran whichever two extremities will provide services provided on a daily basis in the is already entitled to an intermediate the veteran with the highest level of veteran’s residence by a person who is rate, VA will award the next higher rate SMC before combining the third licensed to provide these services or under 38 U.S.C. 1114. This benefit may anatomical loss or loss of use of an who provides these services under the not be paid concurrently with the 100 extremity to award the next higher rate. regular supervision of a licensed health- percent rate pursuant to 38 U.S.C. When there is entitlement for triple care professional. 1114(p) under § 5.331(e). extremity or blindness with extremity, it (3) Personal health-care services. For (2) Independently rated means that will be in addition to any entitlement purposes of this section, ‘‘personal the additional disability or disabilities under 38 U.S.C. 1114(k) or (p) for the 50 health-care services’’ include, but are rated at 50 percent or more disabling are or 100 percent elevations for the same not limited to, physical therapy, separate and distinct, and involve extremity. administration of injections, placement different anatomical segments or bodily of indwelling catheters, the changing of systems, from the disability or (Authority: 38 U.S.C. 1114(p)) sterile dressings, or similar functions, disabilities establishing entitlement § 5.332 Additional allowance for regular the performance of which requires under §§ 5.324 through 5.329. If the aid and attendance under 38 U.S.C. professional health-care training or the bases for the additional disability or 1114(r)(1) or for a higher level of care under regular supervision of a trained health- disabilities and the basis for entitlement 38 U.S.C. 1114(r)(2). care professional. to SMC under §§ 5.324 through 5.329 (a) General rule. The additional (4) Licensed health-care professional. are caused by the same injury or allowance that 38 U.S.C. 1114(r) For purposes of this section, a ‘‘licensed disease, VA cannot pay the next higher authorizes is payable whether the need health-care professional’’ includes, but intermediate rate unless the additional for regular aid and attendance or for a is not limited to, a doctor of medicine disability or disabilities would be rated higher level of care is a partial basis for or osteopathy, a registered nurse, a

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licensed practical nurse, or a physical will be paid in place of any allowance disabilities. The regulatory text in therapist licensed to practice by a State authorized by paragraph (b) of this §§ 5.323 through 5.333 describes these or a political subdivision of a State. section. benefits in more detail. No additional (5) Under the regular supervision of a (Authority: 38 U.S.C. 1114(r), (t)) rights or benefits are conferred by this licensed health-care professional. For section. The tables are informative only purposes of this section, the term under Cross Reference: § 5.1, for the and will not be used as a basis to grant the regular supervision of a licensed definition of ‘‘State’’. or deny benefits in a particular case. health-care professional means that an § 5.333 Special monthly compensation (b) Symbols. The following list unlicensed person performing personal under 38 U.S.C. 1114(s). defines the symbols used in the tables health-care services is following a Special monthly compensation under in this section: regimen of personal health-care services 38 U.S.C. 1114(s) is payable to a veteran prescribed by a health-care professional, L = the rate under 38 U.S.C. 1114(l). who has a single disability rated 100 1 and that the health-care professional L ⁄2 = the intermediate rate between 38 percent disabling under subpart B of the U.S.C. 1114(l) and (m). consults with the unlicensed person Schedule for Rating Disabilities in part M = the rate under 38 U.S.C. 1114(m). providing the health-care services at 1 4 of this chapter, or a disability that is M ⁄2 = the intermediate rate between 38 least once each month to monitor the the sole basis for a rating of total U.S.C. 1114(m) and (n). prescribed regimen. The consultation disability based on individual N = the rate under 38 U.S.C. 1114(n). need not be in person; a telephone call unemployability (TDIU) under § 4.16 of N 1⁄2 = the intermediate rate between 38 is sufficient. this chapter, and either: U.S.C. 1114(n) and (o). (6) Care may be provided by a relative (a) Has an additional disability, or O = the rate under 38 U.S.C 1114(o). of the veteran or a member of the combination of disabilities, rated 60 (c) Usage. In Tables 1 through 4, the veteran’s household. A relative of the percent disabling, without consideration columns and rows are labeled with veteran or a member of the veteran’s of the single disability that was either specific disabilities or combinations of household may perform the necessary rated 100 percent or served as the basis disabilities. The point where a column personal health-care services. However, for a TDIU rating; or such a person must be a licensed health- (b) Is permanently housebound as a and row intersect represents the rate or care professional or provide the result of disability or disabilities, intermediate rate of SMC payable for the necessary personal health-care services including the single disability that was specified combination of disabilities. under the regular supervision of a either rated 100 percent or served as the For example, in Table 1, a veteran who licensed health-care professional. basis for a TDIU rating. For purposes of has the anatomical loss or loss of use of (7) Traumatic brain injury. Subject to this paragraph (b), a veteran is one leg with factors preventing natural § 5.720(c)(1) and (f)(1), if any veteran, as permanently housebound if he or she is knee action with prosthesis in place and the result of service-connected substantially confined to his or her anatomical loss of one arm with factors disability, needs regular aid and residence (ward or clinical areas, if preventing the use of a prosthetic attendance for the residuals of traumatic institutionalized) and immediate appliance is entitled to the intermediate brain injury, is not eligible for rate of SMC between 38 U.S.C. 1114(m) premises because of a disability or 1 compensation under paragraph (c)(1) of disabilities, and it is reasonably certain and (n) (symbol M ⁄2). this section, and in the absence of such that such disability or disabilities will (d) Table 1. To determine the level of regular aid and attendance would remain throughout the veteran’s SMC payable when there are varying require hospitalization, nursing home lifetime. degrees of anatomical loss or loss of use care, or other residential institutional (Authority: 38 U.S.C. 1114(s)) of two extremities, identify the proper care, VA will pay the veteran, in degree of loss for one extremity along addition to any other compensation § 5.334 Special monthly compensation the top row of Table 1 and the proper under §§ 5.320 through 5.334, a monthly tables. degree of loss for the other extremity aid and attendance allowance equal to (a) Purpose of tables. The tables in down the left column. The square where the rate in 38 U.S.C. 1114(r)(2), which this section are meant as aids to the column and row intersect contains for purposes of 38 U.S.C. 1134 will be summarize the statutory or intermediate the symbol for the level of SMC payable considered additional compensation rate of special monthly compensation and the regulatory citation that supports payable for disability. An allowance (SMC) payable to veterans under 38 it. This table does not confer any authorized under this paragraph (c)(7) U.S.C. 1114 for certain combinations of substantive rights.

TABLE 1—SMC—EXTREMITIES ONLY

Anatomical Anatomical Anatomical Anatomical loss or loss of loss or loss of Anatomical Anatomical Extremities loss or loss of loss or loss of use: One leg use: One arm loss of one loss of one use: One foot use: One hand & no knee & no elbow leg: Near hip arm: Near action action shoulder

Anatomical loss or loss of use: One foot L L L1⁄2 L1⁄2 M M § 5.324(a) § 5.324(b) § 5.325(a) § 5.325(b) § 5.326(c) § 5.326(d) Anatomical loss or loss of use: One hand L M L1⁄2 M1⁄2 M N § 5.324(b) § 5.326(a) § 5.325(c) § 5.327(a) § 5.326(f) § 5.328(b) Anatomical loss or loss of use: One leg L1⁄2 L1⁄2 M M M1⁄2 M1⁄2 & no knee action ...... § 5.325(a) § 5.325(c) § 5.326(b) § 5.326(e) § 5.327(b) § 5.327(c) Anatomical loss or loss of use: One arm L1⁄2 M1⁄2 M N M1⁄2 N1⁄2 & no elbow action ...... § 5.325(b) § 5.327(a) § 5.326(e) § 5.328(a) § 5.327(d) § 5.329 Anatomical loss of one leg: Near hip ...... M M M1⁄2 M1⁄2 N N § 5.326(c) § 5.326(f) § 5.327(b) § 5.327(d) § 5.328(c) § 5.328(d)

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TABLE 1—SMC—EXTREMITIES ONLY—Continued

Anatomical loss of one arm: Near shoul- M N M1⁄2 N1⁄2 N O der ...... § 5.326(d) § 5.328(b) § 5.327(c) § 5.329 § 5.328(d) § 5.330(a)

(e) Table 2. To determine the level of Table 2 and the proper degree of regulatory citation that supports it. This SMC payable when there are varying blindness for the other eye along the top table does not confer any substantive degrees of blindness in both eyes, row. The square where the column and rights. identify the proper degree of blindness row intersect contains the symbol for for one eye down the left column of the level of SMC payable and the

TABLE 2—SMC BASED ON BILATERAL BLINDNESS

Vision in other eye Vision in one eye Visual acuity Visual field Light of 5/200 or contraction to perception No light Anatomical less 5° or less only perception loss of eye

Visual acuity of 5/200 or less ...... L L L1⁄2 M M § 5.324(c) § 5.324(c) § 5.325(d) § 5.326(h) § 5.326(h) Visual field contraction to 5° or less ...... L L L1⁄2 M M § 5.324(c) § 5.324(c) § 5.325(d) § 5.326(h) § 5.326(h) Light perception only ...... L1⁄2 L1⁄2 M M1⁄2 M1⁄2 § 5.325(d) § 5.325(d) § 5.326(g) § 5.327(e) § 5.327(e) No light perception ...... M M M1⁄2 N N § 5.326(h) § 5.326(h) § 5.327(e) § 5.328(e) § 5.328(e) Anatomical loss of eye ...... M M M1⁄2 N N § 5.326(h) § 5.326(h) § 5.327(e) § 5.328(e) § 5.328(e)

(f) Table 3. To determine the level of 3 and locate it along the top row. Then the regulatory citation that supports it. SMC when there is bilateral blindness identify the proper extremity loss down This table does not confer any together with anatomical loss or loss of the left column. The square where the substantive rights. use of an extremity, identify the level of column and row intersect contains the SMC for bilateral blindness from Table symbol for the level of SMC payable and

TABLE 3—SMC—BILATERAL BLINDNESS WITH ANATOMICAL LOSS OR LOSS OF USE OF EXTREMITY

SMC for bilateral blindness alone Additional disability ‘‘L’’ ‘‘L1⁄2’’ ‘‘M’’ ‘‘M1⁄2’’ ‘‘N’’

Service-connected anatomical loss or L1⁄2 + K, M + K, M1⁄2 + K, N + K, N1⁄2 + K, loss of use of one foot rated less § 5.331(c)(3); § 5.331(c)(3); § 5.331(c)(3); § 5.331(c)(3); § 5.331(c)(3); than 50%, and it is the only com- § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2) pensable disability other than blindness. Service-connected anatomical loss or M + K, M1⁄2 + K, N + K, N1⁄2 + K, O § 5.331(c)(2) loss of use of one foot rated 50% or § 5.331(c)(2); § 5.331(c)(2); § 5.331(c)(2); § 5.331(c)(2); more, either alone or in combina- § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2). tion with another disability. Service-connected anatomical loss or M + K M1⁄2 + K, N + K, N1⁄2 + K, O, § 5.331(c)(1) loss of use of one hand. § 5.331(c)(1); § 5.331(c)(1); § 5.331(c)(1); § 5.331(c)(1); § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2). § 5.323(b)(2).

(g) Table 4. To determine the level of Then identify the proper degree of citation that supports it. This table does SMC when there is bilateral blindness deafness down the left column. The not confer any substantive rights. together with deafness, identify the square where the column and row level of SMC for bilateral blindness from intersect contains the symbol for the Table 4 and locate it along the top row. level of SMC payable and the regulatory

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TABLE 4—SMC—BILATERAL BLINDNESS WITH DEAFNESS

SMC for bilateral blindness alone Additional disability ‘‘M’’ ‘‘M’’ ‘‘L’’ ‘‘L1⁄2’’ under under ‘‘M1⁄2’’ ‘‘N’’ § 5.326(h) or (i) § 5.326(g)

Service-connected (SC) total L1⁄2, M, § 5.331(b)(1) M1⁄2, O, § 5.330(c) .... O, § 5.330(c) .... O, § 5.330(c) deafness in one ear. § 5.331(b)(1). § 5.331(b)(1). Bilateral deafness rated 10% or No additional No additional No additional M1⁄2, N, § 5.331(b)(2) N1⁄2, 20% (one or both ears SC). SMC. SMC. SMC. § 5.331(b)(2). § 5.331(b)(2) Bilateral deafness rated 30% M, § 5.331(b)(3) M1⁄2, N, § 5.331(b)(3) N, § 5.331(b)(3) N1⁄2, O, § 5.331(b)(3) (one or both ears SC). § 5.331(b)(3). § 5.331(b)(3). Bilateral deafness rated 40% or M, § 5.331(b)(3) M1⁄2, N, § 5.331(b)(3) O, § 5.330(c) .... O, § 5.330(c) .... O, § 5.330(c) 50% (one or both ears SC). § 5.331(b)(3). Bilateral deafness rated 60% or O, § 5.330(b) .... O, § 5.330(b) .... O, § 5.330(b) .... O, § 5.330(b) .... O, § 5.330(b) .... O, § 5.330(b) more (one or both ears SC).

(Authority: 38 U.S.C. 1114) additional compensation effective the or presumptive service connection for Special Monthly Compensation: end of the month in which VA takes the active re-infection type pulmonary Effective Dates award action to discontinue. tuberculosis. (Authority: 38 U.S.C. 501(a), 5110(b)(1), (2)) (Authority: 38 U.S.C. 501(a)) § 5.335 Effective dates: special monthly compensation under §§ 5.332 and 5.333. §§ 5.337–5.339 [Reserved] § 5.341 Presumption of service connection for tuberculous disease; wartime and (a) General rule. Except as provided in Tuberculosis § 5.312 (regarding effective dates of service after December 31, 1946. increased disability compensation), and § 5.340 Pulmonary tuberculosis shown by (a) Pulmonary tuberculosis.—(1) paragraph (b) of this section, the X-ray in active military service. General rule. Evidence of activity on effective date of an award of special (a) Active disease. X-ray evidence comparative study of X-ray films monthly compensation (SMC) under alone may be adequate for grant of showing pulmonary tuberculosis within § 5.332 or § 5.333 will be the date of direct service connection for pulmonary the 3-year presumptive period provided receipt of the claim or the date tuberculosis. When under by § 5.261(c), will be taken as entitlement arose, whichever is later. consideration, all available service establishing service connection for (b) Retroactive award of SMC. When department films and subsequent films active pulmonary tuberculosis VA awards disability compensation, will be secured and read by specialists subsequently diagnosed by approved based on an original or reopened claim, at designated stations who should have methods but service connection and for a retroactive period, VA will also a current examination report and X-ray. rating may be assigned only from the award SMC for all or any part(s) of that Resulting interpretations of service films date of such diagnosis or other evidence retroactive period during which the will be accorded the same consideration of clinical activity. veteran met the eligibility requirements for service connection purposes as if (2) Notation of inactive tuberculosis. for SMC. clinically established, however, a A notation of inactive tuberculosis of (Authority: 38 U.S.C. 5110(a), (b)) compensable rating will not be assigned the re-infection type at induction or prior to establishment of an active enlistment prevents the grant of service § 5.336 Effective dates: additional condition by approved methods. connection under § 5.261 for active compensation for regular aid and (b) Inactive disease. Where the tuberculosis, regardless of the fact that attendance payable for a veteran’s spouse veteran was examined at the time of it was shown within the appropriate under § 5.321. entrance into active military service but presumptive period. (a) Award of regular aid and no X-ray was made, or if made, is not attendance. (1) The effective date of an available and there was no notation or (b) Pleurisy with effusion without award of additional compensation other evidence of active or inactive re- obvious cause. Pleurisy with effusion payable to a veteran because the infection type pulmonary tuberculosis with evidence of diagnostic studies veteran’s spouse’s needs regular aid and existing prior to such entrance, it will be ruling out obvious nontuberculosis attendance will be the date of receipt of assumed that the condition occurred causes will qualify as active the claim or the date entitlement arose, during service and direct service tuberculosis. The requirements for whichever is later. connection will be in order for inactive presumptive service connection will be (2) When VA awards disability pulmonary tuberculosis shown by X-ray the same as those for tuberculosis compensation based on an original or evidence during service in the manner pleurisy. reopened claim retroactive to an prescribed in paragraph (a) of this (c) Tuberculosis pleurisy and effective date that is earlier than the section, unless lesions are first shown so endobronchial tuberculosis. date of receipt of the claim, VA will also soon after entry on active military Tuberculosis pleurisy and award additional compensation for any service as to compel the conclusion, on endobronchial tuberculosis fall within part of the retroactive period during the basis of sound medical principles, the category of pulmonary tuberculosis which the spouse needed regular aid that they existed prior to entry on active for purpose of service connection on a and attendance. military service. presumptive basis. Either will be held (b) Discontinuance of additional (c) Primary lesions. Healed primary incurred in service when initially compensation. If the veteran’s spouse type tuberculosis shown at the time of manifested within the 3-year no longer needs regular aid and entrance into active military service will presumptive period provided by attendance, VA will discontinue not be taken as evidence to rebut direct § 5.261(c).

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(d) Miliary tuberculosis. Service discharge from active military service are recommended or if other evidence connection for miliary tuberculosis unless confirmed by acceptable clinical, warrants submission. involving the lungs is to be determined X-ray or laboratory studies, or by (Authority: 38 U.S.C. 501(a)) in the same manner as for other active findings of active tuberculosis based pulmonary tuberculosis. upon acceptable hospital observation or § 5.346 Tuberculosis and compensation (Authority: 38 U.S.C. 501(a)) treatment. under 38 U.S.C. 1114(q) and 1156. (Authority: 38 U.S.C. 501(a)) § 5.342 Initial grant following inactivity of (a) General rule. Any veteran who, on tuberculosis. § 5.344 Determination of inactivity August 19, 1968, was receiving or When service connection is granted (complete arrest) of tuberculosis. entitled to receive disability compensation for active or inactive initially on an original or reopened (a) Pulmonary tuberculosis. A veteran (arrested) tuberculosis may receive claim for pulmonary or nonpulmonary shown to have had pulmonary special monthly compensation (SMC) tuberculosis and there is satisfactory tuberculosis will be held to have under 38 U.S.C. 1114(q) and 1156 as in evidence that the condition was active reached a condition of ‘‘complete effect before August 20, 1968. previously but is now inactive arrest’’ when a diagnosis of inactive (arrested), it will be presumed that the tuberculosis is made. (b) SMC under 38 U.S.C. 1114(q) for disease continued to be active for 1 year (b) Nonpulmonary disease. inactive tuberculosis (complete arrest)— after the last date of established activity, Determination of complete arrest of (1) Receiving or entitled to receive provided there is no evidence to nonpulmonary tuberculosis requires special monthly compensation for establish activity or inactivity in the absence of evidence of activity for 6 tuberculosis on August 19, 1968. (i) For intervening period. For a veteran months. If there are two or more foci of a veteran who was receiving or entitled entitled to receive disability such tuberculosis, one of which is to receive SMC for tuberculosis on compensation on August 19, 1968, the active, the condition will not be August 19, 1968, the minimum monthly beginning date of graduated ratings will considered to be inactive until the rate is $67. This minimum SMC is not commence at the end of the 1-year tuberculosis process has reached arrest to be combined with or added to any period. For a veteran who was not in its entirety. other disability compensation. The receiving or entitled to receive disability (c) Arrest following surgery. Where rating criteria for determining inactivity compensation on August 19, 1968, there has been surgical excision of the of tuberculosis are set out in § 5.344, ratings will be assigned in accordance lesion or organ, the date of complete Determination of inactivity (complete with the Schedule for Rating Disabilities arrest will be the date of discharge from arrest) of tuberculosis. in part 4 of this chapter. This section is the hospital, or 6 months after the date not applicable to running award cases. (ii) The effective date of SMC under of excision, whichever is later. paragraph (b)(1)(i) of this section will be (Authority: 38 U.S.C. 501(a)) (Authority: 38 U.S.C. 501(a)) the date the graduated rating of the § 5.343 Effect of diagnosis of active disability or compensation for that tuberculosis. § 5.345 Changes from activity in degree of disablement combined with pulmonary tuberculosis pension cases. (a) Service diagnosis. Service other service-connected disabilities department diagnosis of active A permanent and total disability provides compensation payable at a rate pulmonary tuberculosis will be rating in effect during hospitalization less than $67. accepted unless a board of medical will not be discontinued before hospital (2) Not receiving or entitled to receive examiners, a Clinic Director, or Chief, discharge based on a change in SMC for tuberculosis on August 19, Outpatient Service certifies, after classification from active. At hospital 1968. For a veteran who was not considering the evidence, including the discharge, the permanent and total receiving or entitled to receive SMC for evidence favoring or opposing rating will be discontinued unless the tuberculosis on August 19, 1968, the tuberculosis and activity, that such medical evidence does not support a SMC authorized by paragraph (b)(1) of diagnosis was incorrect. Doubtful cases finding of complete arrest (see § 5.344) this section is not payable. may be referred to the Under Secretary or where complete arrest is shown but for Health in Central Office for a the medical authorities recommend that (Authority: 38 U.S.C. 501(a); Pub. L. 90–493, medical opinion. employment not be resumed or be 82 Stat. 809) resumed only for short hours (not more (b) Department of Veterans Affairs § 5.347 Continuance of a total disability diagnosis. Diagnosis of active than 4 hours a day for a 5-day week). If rating for service-connected tuberculosis. pulmonary tuberculosis by the medical either of the two aforementioned authorities of VA as the result of conditions is met, discontinuance will In service-connected cases, ratings for examination, observation, or treatment be deferred pending examination in 6 active or inactive tuberculosis will be will be accepted for rating purposes. In months. Although complete arrest may governed by the Schedule for Rating a case where there is no such diagnosis, be established upon that examination, Disabilities in part 4 of this chapter. but there is evidence that the veteran the permanent and total rating may be Where in the opinion of the agency of has tuberculosis, the case will be extended for a further period of 6 original jurisdiction the veteran, at the referred to the Clinic Director or Chief, months provided the veteran’s expiration of the period during which a Outpatient Service, and, if necessary, to employment is limited to short hours as total rating is provided, will not be able the Under Secretary for Health in recommended by the medical to maintain inactivity of the disease Central Office for a medical opinion. authorities (not more than 4 hours a day process under the ordinary conditions (c) Private physician’s diagnosis. for a 5-day week). Similar extensions of life, the case will be considered under Diagnosis of active pulmonary may be granted under the same § 5.280. tuberculosis by private physicians based conditions at the end of 12- and 18- (Authority: 38 U.S.C. 501(a)) on their examination, observation, or month periods. At the expiration of 24 treatment will not be accepted to show months after hospitalization, the case Cross Reference: § 5.1, for the the disease was initially manifested will be considered under § 5.280 if definition of ‘‘agency of original within the presumptive period after continued short hours of employment jurisdiction’’.

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§§ 5.348–5.349 [Reserved] (2) Continuance or natural progress of provider would have foreseen. The Injury or Death Due to Hospitalization injury or disease. Hospital care, medical event need not be completely or Treatment or surgical treatment, or examination unforeseeable or unimaginable but must cannot cause the continuance or natural be one that a reasonable health-care § 5.350 Benefits under 38 U.S.C. 1151(a) progress of injury or disease for which provider would not have considered an for additional disability or death due to the care, treatment, or examination was ordinary risk of the treatment provided. hospital care, medical or surgical treatment, furnished unless VA’s failure to timely In determining whether an event was examination, training and rehabilitation diagnose and properly treat the injury or reasonably foreseeable, VA will services, or compensated work therapy disease proximately caused the consider whether the risk of that event program. continuance or natural progress. The was the type of risk that a reasonable (a) General rule. (1) Except as provision of training and rehabilitation health-care provider would have provided in paragraph (a)(2) of this services or CWT program cannot cause disclosed in connection with the section, and subject to paragraphs (c) the continuance or natural progress of informed consent procedures of § 17.32 through (f) of this section, VA will pay injury or disease for which the services of this chapter. disability compensation or dependency were provided. (3) Training and rehabilitation and indemnity compensation for an (3) Veteran’s failure to follow medical services or compensated work therapy injury, disease, death, or for the instructions. Additional disability or program. To establish that the provision aggravation of an existing injury or death caused by a veteran’s failure to of training and rehabilitation services or disease that occurs as a result of an follow properly given medical a CWT program proximately caused a examination, medical or surgical instructions is not caused by hospital veteran’s additional disability or death, treatment, hospitalization, participation care, medical or surgical treatment, or the evidence must show that the in vocational rehabilitation, or examination. veteran’s participation in an essential participation in compensated work (d) Establishing the proximate cause activity or function of the training, therapy (CWT) under any law VA of additional disability or death. The services, or CWT program provided or administers, as if it were service proximate cause of disability or death is authorized by VA proximately caused connected. the action or event that directly caused the disability or death. The veteran must (2) VA will not pay the benefits the disability or death, as distinguished have been participating in such training, described in paragraph (a)(1) of this from a remote contributing cause. services, or CWT program provided or section if the injury, disease, death, or (1) Care, treatment, or examination. authorized by VA as part of an approved the aggravation of an existing injury or To establish that carelessness, rehabilitation program under 38 U.S.C. disease was the result of the veteran’s negligence, lack of proper skill, error in chapter 31 or as part of a CWT program willful misconduct. judgment, or a similar instance of VA under 38 U.S.C. 1718. It need not be (b) Determining whether a veteran has fault in furnishing hospital care, shown that VA approved that specific an additional disability. To determine medical or surgical treatment, or activity or function, as long as the whether a veteran has an additional examination proximately caused a activity or function is generally disability, VA will compare the veteran’s additional disability or death, accepted as being a necessary veteran’s condition immediately before the evidence must show that the component of the training, services, or the beginning of the hospital care, hospital care, medical or surgical CWT program that VA provided or medical or surgical treatment, treatment, or examination caused the authorized. examination, training and rehabilitation veteran’s additional disability or death (e) Department employees and services, or CWT program upon which (as explained in paragraph (c) of this facilities.—(1) A Department employee the claim is based to the veteran’s section); and is a person: condition after such care, treatment, (i) VA failed to exercise the degree of (i) Who is appointed by the examination, services, or program has care that would be expected of a Department in the civil service under stopped. VA considers each involved reasonable health-care provider; or title 38, United States Code, or title 5, body part or system separately. (ii) VA furnished the hospital care, United States Code, as an employee as (c) Establishing the cause of medical or surgical treatment, or defined in 5 U.S.C. 2105; additional disability or death. Claims examination without the veteran’s or, in (ii) Who is engaged in furnishing based on additional disability or death appropriate cases, the veteran’s hospital care, medical or surgical due to hospital care, medical or surgical representative’s informed consent. To treatment, or examinations under treatment, or examination must meet the determine whether there was informed authority of law; and causation requirements of this consent, VA will consider whether the (iii) Whose day-to-day activities are paragraph (c) and paragraph (d)(1) or (2) health-care providers substantially subject to supervision by the Secretary of this section. Claims based on complied with the requirements of of Veterans Affairs. additional disability or death due to § 17.32 of this chapter. Minor deviations (2) A Department facility is a facility training and rehabilitation services or from the requirements of § 17.32 of this over which the Secretary of Veterans CWT program must meet the causation chapter that are immaterial under the Affairs has direct jurisdiction. requirements of paragraph (d)(3) of this circumstances of a case will not defeat (f) Activities that are not hospital section. a finding of informed consent. Consent care, medical or surgical treatment, or (1) Actual causation required. To may be express (that is, given orally or examination furnished by a Department establish causation, the evidence must in writing) or implied under the employee or in a Department facility. show that the hospital care, medical or circumstances specified in § 17.32(b) of The following activities are not hospital surgical treatment, or examination this chapter, as in emergency situations. care, medical or surgical treatment, or resulted in the veteran’s additional (2) Events not reasonably foreseeable. examination furnished by a Department disability or death. Merely showing that Whether the proximate cause of a employee or in a Department facility a veteran received care, treatment, or veteran’s additional disability or death within the meaning of 38 U.S.C. 1151(a): examination and that the veteran has an was an event not reasonably foreseeable (1) Hospital care or medical services additional disability or died does not is to be determined in each claim based furnished under a contract made under establish cause. on what a reasonable health-care 38 U.S.C. 1703;

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(2) Nursing home care furnished estate) of sums included in the under 28 U.S.C. 1346(b) made, or a under 38 U.S.C. 1720; and judgment, settlement, or compromise settlement or compromise under 28 (3) Hospital care or medical services, representing damages for the veteran’s U.S.C. 2672 or 2677 finalized, before including, but not limited to, death to compensate for harm the December 1, 1962, VA may not award examination, provided under 38 U.S.C. survivor suffered, plus the survivor’s benefits under 38 U.S.C. 1151(a) for any 8153, in a facility over which the proportional share of attorney fees, is to period after such award, settlement, or Secretary does not have direct be offset from any dependency and compromise was made or became final. jurisdiction. indemnity compensation awarded If a veteran’s disability or death was the (Authority: 38 U.S.C. 1151) under 38 U.S.C. 1151(a). basis of a judgment under 28 U.S.C. (c) Offset of structured settlements. 1346(b) that became final before Cross Reference: § 5.1, for the This paragraph applies if a veteran’s December 1, 1962, VA may award definition of ‘‘nursing home,’’ disability or death is the basis of a benefits under 38 U.S.C. 1151(a) for the ‘‘proximately caused,’’ and ‘‘willful structured settlement or structured disability or death unless the terms of misconduct’’. compromise under 28 U.S.C. 2672 or the judgment provide otherwise. § 5.351 Effective dates of awards of 2677 entered after November 30, 1962. (Authority: 38 U.S.C. 1151) benefits under 38 U.S.C. 1151(a) for (1) The amount to be offset. The additional disability or death due to hospital amount to be offset from benefits §§ 5.354–5.359 [Reserved] awarded under 38 U.S.C. 1151(a) is the care, medical or surgical treatment, Ratings for Health-Care Eligibility Only examination, training and rehabilitation veteran’s or survivor’s proportional services, or compensated work therapy share of the cost to the U.S. of the § 5.360 Service connection of dental program. settlement or compromise, including the conditions for treatment purposes. The effective date of an award of veteran’s or survivor’s proportional (a) General principles. (1) Service disability compensation under 38 U.S.C. share of attorney fees. connection of dental conditions for 1151(a) (see § 5.350) will be one of the (2) When the offset begins. The offset treatment purposes means VA has following: of benefits awarded under 38 U.S.C. determined that a veteran meets the (a) Disability. Date injury or 1151(a) begins the first month after the basic eligibility requirements of § 17.161 aggravation was suffered if a claim is structured settlement or structured of this chapter and is eligible for received no later than 1 year after that compromise has become final that such treatment of a dental condition. date; otherwise, date of receipt of the benefits would otherwise be paid. (2) VA’s Veterans Benefits claim. (d) Offset of award of benefits under Administration (VBA) will adjudicate a (b) Death. First day of the month in 38 U.S.C. chapter 21 or 38 U.S.C. claim for service connection of a dental which the veteran’s death occurred, if a chapter 39. (1) VA will reduce the condition for treatment purposes after claim is received no later than 1 year amount of an award of benefits under 38 the Veterans Health Administration after the date of death; otherwise, date U.S.C. chapter 21 or 39 by the amount (VHA) determines a veteran meets the of receipt of the claim. received in a judgment, settlement, or basic eligibility requirements of § 17.161 compromise covered in paragraphs (a) (Authority: 38 U.S.C. 5110(c)) of this chapter and VHA requests that through (c) of this section that became VBA make a determination on questions § 5.352 Effect of Federal Tort Claims Act final after December 9, 2004, if it that include, but are not limited to any compromises, settlements, and judgments included an amount that was of the following: entered after November 30, 1962, on specifically designated for a purpose for i. Former Prisoner of War status; benefits awarded under 38 U.S.C. 1151(a) which benefits are provided under 38 ii. Whether the veteran has a for additional disability or death due to U.S.C. chapters 21 or 39, and VA awards compensable or non-compensable hospital care, medical or surgical treatment, chapter 21 or chapter 39 benefits after examination, training and rehabilitation service-connected dental condition or services, or compensated work therapy the date the judgment, settlement, or disability; program. compromise becomes final, iii. Whether the dental condition or Cross References: (§§ 5.604, Specially disability is a result of combat wounds; (a) Offset of a veterans’ awards of adapted housing under 38 U.S.C. iv. Whether the dental condition or compensation. If a veteran’s disability is 2101(a); 5.605, Special Home disability is a result of service trauma; the basis of a judgment awarded under Adaptation Grants under 38 U.S.C. or 28 U.S.C. 1346(b), or of a settlement or 2101(b); § 5.603, Financial assistance to v. Whether the veteran is totally compromise entered under 28 U.S.C. purchase a vehicle or adaptive disabled due to a service-connected 2672 or 2677, after November 30, 1962, equipment. disability. the entire amount of the veteran’s share (2) If the amount described in (b) Establishing service connection. of the judgment, settlement, or paragraph (d)(1) of this section is greater VBA will determine service connection compromise, including the veteran’s than the amount of an award under 38 for establishing eligibility for outpatient proportional share of attorney fees, will U.S.C. chapters 21 or 39, VA will offset dental treatment using the following be offset from any compensation the excess amount received under the principles: awarded under 38 U.S.C. 1151(a). judgment, settlement, or compromise (1) VBA will consider the condition of (b) Offset of survivors’ awards of against benefits otherwise payable teeth and periodontal tissues at the time dependency and indemnity under 38 U.S.C. chapter 11. of entry into active duty. compensation. If a veteran’s death is the (2) VBA will consider each defective basis of a judgment awarded under 28 (Authority: 38 U.S.C. 1151) or missing tooth and each disease of the U.S.C. 1346(b), or of a settlement or § 5.353 Effect of Federal Tort Claims Act teeth and periodontal tissue separately compromise entered under 28 U.S.C. administrative awards, compromises, to determine whether the condition was 2672 or 2677, after November 30, 1962, settlements, and judgments finalized before incurred or aggravated in line of duty only the amount of the judgment, December 1, 1962, on benefits awarded during active military service. settlement, or compromise the survivor under 38 U.S.C. 1151(a). (c) Conditions service connected for receives (in an individual capacity, or as If a veteran’s disability or death was treatment purposes. (1) VA will service distribution from the decedent veteran’s the basis of an administrative award connect any of the following dental

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conditions solely for purpose of (4) Teeth noted as carious but disability incurred or aggravated during providing treatment, but will not pay restorable at entry will be service active military service in the line of disability compensation for any of the connected for treatment purposes if duty. following dental conditions: extraction was required 180 days or (b) Eligibility criteria. VA will use the (i) Treatable carious teeth. more after entry into active military (ii) Replaceable missing teeth. same eligibility criteria that are service. applicable to determinations of (iii) Dental or alveolar abscesses. (5) Third molars will not be service incurrence in service and of incurrence (iv) Periodontal disease. connected for treatment purposes unless in the line of duty when there is no (2) VBA will grant service connection disease or pathology of the tooth character of discharge bar to determine for treatment purposes under this developed 180 days or more after entry a claimant’s health-care eligibility. section if the evidence of record shows into active military service. that the dental condition meets the (6) Impacted or malposed teeth and (c) Characterization of discharge. VA requirements of paragraph (d) of this other developmental defects will not be will not furnish health-care and related section. service connected for treatment benefits for any disability incurred in or (3) These conditions and other dental purposes unless disease or pathology of aggravated during a period of service conditions or disabilities that are the teeth developed 180 days or more discontinued by a bad-conduct noncompensably rated under § 4.150 of after entry into active military service. discharge or when one of the character this chapter may be service connected (7) Teeth extracted because of chronic of discharge bars listed in § 5.31(c) for purposes of Class II or Class II (a) periodontal disease will be service applies. dental treatment under § 17.161 of this connected for treatment purposes if they chapter. (Authority: Pub. L. 95–126, 91 Stat. 1106) were extracted 180 days or more after (d) Aggravation. Notations of conditions made at entry into service entry into active military service. § 5.362 Presumption of service incurrence (e) Conditions not service connected and treatment of such conditions during of active psychosis for purposes of for treatment purposes. The following hospital, nursing home, domiciliary, and service (including, but not limited to, conditions will not be service connected medical care. fillings, extractions, and placement of a for treatment purposes: prosthesis) are not evidence of (a) Presumption of service incurrence (1) Teeth noted at entry as aggravation unless additional pathology for active psychosis. For purposes of nonrestorable, regardless of treatment developed 180 days or more after entry during service. determining eligibility for hospital, into active military service. (2) Teeth noted as missing at entry, nursing home, domiciliary, and medical (1) Teeth noted as normal at entry will care under chapter 17 of title 38, United be service connected for treatment regardless of treatment during service. (3) Calculus. States Code, VA will presume that the purposes if they were filled or extracted veteran incurred any active psychosis 180 days or more after entry into active (Authority: 38 U.S.C. 1712) developed under the circumstances military service. Cross Reference: § 17.161 described in paragraph (b) of this (2) Teeth noted as filled at entry will Authorization of outpatient dental section in active military service. be service connected for treatment treatment; § 5.140, Determining former (b) Requirements. For purposes of this purposes if they were extracted, or if the prisoner of war status, for the definition section, a veteran’s active psychosis is existing filling was replaced, 180 days of ‘‘former prisoner of war’’. or more after entry into active military presumed incurred in active military service. § 5.361 Health-care eligibility of a person service if he or she served during one of (3) Teeth noted as carious but administratively discharged under other- the periods of war specified in the restorable at entry will not be service than-honorable conditions. following table and developed the connected for treatment purposes on the (a) General rule. VA will provide psychosis no later than 2 years after basis that they were filled during health-care and related benefits discharge from active military service service. Service connection may be authorized by chapter 17 of title 38 and before the date specified in the established for treatment purposes if U.S.C. to certain former servicemembers following table that corresponds to the new caries developed 180 days or more with administrative discharges under period of war during which the veteran after such teeth were filled. other-than-honorable conditions for any served.

Must have developed active psychosis no later than 2 years after dis- Veteran who served during: charge from active military service and before:

World War II ...... July 26, 1949. Korean conflict ...... February 1, 1957. Vietnam era ...... May 8, 1977. Persian Gulf War ...... The end of 2-year period beginning on the last day of the Persian Gulf War.

(Authority: 38 U.S.C. 101(16), 105, 501(a), § 5.363 Determination of service made using the same criteria that apply 1702) connection for a former member of the to determinations of service connection Armed Forces of Czechoslovakia or Poland. based on service in the Armed Forces of Cross References: §§ 5.1, for the For purposes of entitlement to VA the U.S. definitions of ‘‘nursing home’’ and medical care under 38 U.S.C. 109(c), the (Authority: 38 U.S.C. 501(a)) ‘‘psychosis’’; 5.20, Dates of periods of agency of original jurisdiction will war. determine whether a former member of Cross Reference: § 5.1, for the the Armed Forces of Czechoslovakia or definition of ‘‘agency of original Poland has a service connected jurisdiction’’. disability. This determination will be

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§ 5.364 [Reserved] the civil service preference. For (A) He or she was discharged or Miscellaneous Service-Connection disabilities incurred in combat, released from active duty for a disability Regulations however, no actual impairment is incurred or aggravated in the line of required. duty; or § 5.365 Claims based on the effects of (Authority: 38 U.S.C. 501(a), 5 U.S.C. (B) He or she has a disability that VA tobacco products. 2108(2)). has determined to be compensable (a) General rule. Except as provided in under 38 U.S.C. chapter 11; or paragraph (b) of this section, a disability § 5.368 Basic eligibility determinations: (ii) The veteran applies for benefits or death will not be service connected home loan and education benefits. under 38 U.S.C. chapter 30; and on any basis, including secondary (a) Loans—(1) Scope. A veteran (A) The evidence of record does not service connection under § 5.246 or identified in paragraph (a)(3) of this clearly show either that the veteran was § 5.247, if it resulted from injury or section is eligible for a loan under 38 discharged or released from active duty disease attributable to the veteran’s use U.S.C. chapter 37 if for disability or that the veteran’s during service of tobacco products, such (i) He or she was discharged or discharge or release from active duty as cigars, cigarettes, smokeless tobacco, released because of a service-connected was unrelated to disability; and pipe tobacco, and roll-your-own disability; or (B) The veteran is eligible for basic tobacco. (ii) The official service department educational assistance except for the (b) Exceptions. Paragraph (a) of this records show that he or she had a minimum length of active duty service section does not prohibit service service-connected disability at the time requirements of § 21.7042(a) or connection if any of the following is of separation from service that in VA’s § 21.7044(a) of this chapter. true: medical judgment would have (2) Requirements for Selected Reserve (1) The disability or death can be warranted a discharge for disability. servicemembers. VA will determine service connected on some basis other (2) The determinations in paragraph whether a veteran was discharged or than the veteran’s use of tobacco (a)(1)(i) and (ii) of this section are released from service in the Selected products during service; or subject to the presumptions of Reserve for a service-connected (2) The disability became manifest or soundness under §§ 5.244(a) and 5.245. disability or for a medical condition that death occurred during service; or This paragraph is also applicable, in preexisted the veteran’s membership in (3) The disability or death resulted determining eligibility to the maximum the Selected Reserve and that VA from injury or disease that manifested to period of entitlement based on determines is not service connected the required degree of disability within discharge or release for a service- when the veteran applies for benefits any applicable presumptive period connected disability, regardless of under 38 U.S.C. chapter 30; and under §§ 5.260 through 5.268, § 5.270, length of service. See § 5.39. (i) The veteran would be eligible for or § 5.271; or (3) Veterans affected. This paragraph basic educational assistance under that (4) Service connection is established applies to: chapter only if he or she was discharged for ischemic heart disease or other (i) A veteran of World War II, the from the Selected Reserve for a service- cardiovascular disease under § 5.248 as Korean conflict, or the Vietnam era who connected disability or for a medical secondary to a disability not caused by served for less than 90 days; or condition that preexisted the veteran’s (ii) A veteran who served less than the use of tobacco products during having become a member of the 181 days on active duty as defined in service. Selected Reserve and which VA finds is §§ 36.4301 and 36.4501, and whose not service connected; or (Authority: 38 U.S.C. 501(a), 1103) dates of service were: (ii) The veteran is entitled to basic (A) After July 25, 1947, and before § 5.366 Disability due to impaired hearing. educational assistance and would be June 27, 1950; entitled to receive it at the rates stated VA will consider impaired hearing to (B) After January 31, 1955, and before in § 21.7136(a) or § 21.7137(a) of this be a disability when any of the August 5, 1964; or following three criteria is satisfied: (C) After May 7, 1975. chapter only if he or she was discharged (a) The auditory threshold in any of from the Selected Reserve for a service- the frequencies of 500, 1000, 2000, (Authority: 38 U.S.C. 3702, 3707) connected disability or for a medical 3000, or 4000 Hertz is 40 decibels or (b) Veterans’ educational condition which preexisted the greater; assistance.—(1) Requirements for active veteran’s having become a member of (b) The auditory thresholds for at least duty servicemembers. VA will the Selected Reserve and which VA three of the frequencies of 500, 1000, determine whether a veteran was finds is not service connected. 2000, 3000, or 4000 Hertz are 26 discharged or released from active duty (3) Requirements for reservists. VA decibels or greater; or (as defined in § 5.22) because of a will determine whether a reservist has (c) Speech recognition scores using service-connected disability, or whether been unable to pursue a program of the Maryland CNC Test are less than 94 the official service department records education due to a disability that has percent. show that the veteran had a service- been incurred in or aggravated by (Authority: 38 U.S.C. 1110) connected disability at time of service in the Selected Reserve when: separation from service which in VA’s (i) The reservist is otherwise entitled § 5.367 Civil service preference ratings for medical judgment would have to educational assistance under 10 employment in the U.S. government. warranted discharge for disability, if U.S.C. chapter 1606; and For certifying civil service disability either of the following circumstances (ii) He or she applies for an extension preference for purpose of employment exist: of his or her eligibility period. by the U.S. government, a service- (i) The veteran applies for benefits (4) The determinations required by connected disability may be assigned a under 38 U.S.C. chapter 32, the paragraphs (b)(1) through (3) of this rating of less than 10 percent disabling. minimum active duty service section are subject to the presumptions Any directly or presumptively service- requirements of 38 U.S.C. 5303A apply of soundness under §§ 5.244(a) and connected disability resulting in actual to him or her, and the veteran would be 5.245, based on service rendered after impairment will qualify the veteran for eligible for such benefits only if: May 7, 1975.

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(Authority: 10 U.S.C. 16133(b); 38 U.S.C. Improved Pension and who meets § 5.372 Wartime service requirements for 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A)) additional criteria in § 5.390 or § 5.391. Improved Pension. Cross Reference: § 5.1, for the References to Improved Disability (a) Wartime periods for Improved definition of ‘‘reservist’’. See 38 CFR Pension or Improved Death Pension also Pension. For dates of the periods of war, part 21, for further information on apply to special monthly pension, when see § 5.20. veterans educational assistance. such regulations set forth eligibility or (b) Wartime service requirement for entitlement requirements. § 5.369 [Reserved] Improved Disability Pension. A veteran (Authority: 38 U.S.C. 501(a)) has ‘‘wartime service’’ for Improved Disability Pension purposes if he or she Subpart F—Nonservice-Connected § 5.371 Eligibility and entitlement Disability Pensions and Death requirements for Improved Pension. served in the active military service for Pensions one or more of the following periods: (a) General rule. VA can only pay (1) A period of 90 consecutive days or Improved Pension Requirements: Improved Pension benefits, including, more, at least 1 day of which was during Veteran, Surviving Spouse, and but not limited to, special monthly a period of war. Surviving Child pension, to a beneficiary who is eligible and entitled to receive Improved (2) 90 nonconsecutive days or more § 5.370 Definitions for Improved Pension. Pension under this section. during a period of war. Separate periods (a) Adjusted annual income means (b) Eligibility requirements for of service within the same period of war countable annual income minus Improved Disability Pension. A veteran can be added together to meet the 90- deductions described in § 5.413, is eligible for Improved Disability day requirement. rounded down to the nearest dollar. Pension if the veteran: (3) A total of 90 days or more in 2 or (b) Annual Improved Pension amount (1) Had wartime service under more separate periods of service during means the annual amount of Improved § 5.372; and more than 1 period of war. Pension payable to a beneficiary, (4) Any period of time during a period calculated as the maximum annual (2) Is either: of war if: pension rate minus adjusted annual (i) Age 65 or older; or income. (ii) Permanently and totally disabled (i) The veteran was discharged or (c) Countable annual income means under § 5.380. released for a disability that VA later payments of any kind from any source (c) Eligibility requirements for determines to be service-connected that are not specifically excluded under Improved Death Pension. A surviving without presumptive provisions of law; § 5.410, § 5.411, or § 5.412. spouse or surviving child may be or (d) Improved Pension means the eligible for Improved Death Pension (ii) Official service records show that nonservice-connected disability and regardless of whether the veteran’s the veteran had such a service- death pension programs available to a death is service-connected. Eligibility is connected disability at the time of new claimant beginning on January 1, determined as follows: discharge that would have justified 1979. It is a benefit payable to an (1) A surviving spouse is eligible for discharge. eligible and entitled veteran as Improved Death Pension if the deceased (c) Wartime service requirement for ‘‘Improved Disability Pension;’’ to a veteran had wartime service under Improved Death Pension. For Improved veteran’s surviving spouse or surviving § 5.372. For the requirements to Death Pension claims, the veteran met child as ‘‘Improved Death Pension;’’ or establish status as a surviving spouse, the wartime service requirement if to any of those beneficiaries as ‘‘special see §§ 5.200 and 5.430. either of the following factors is true: monthly pension.’’ Improved Pension is (2) A surviving child is eligible for (1) The veteran had wartime service paid monthly or as provided in § 5.425, Improved Death Pension if the deceased as specified in paragraph (b) of this at rates set forth in §§ 5.390, 5.391, and veteran had wartime service under section; or 5.400. § 5.372 and the child is not in the (2) The veteran was, at the time of his (e) Improved Pension payment custody of a surviving spouse eligible to or her death, receiving or entitled to amount is the monthly payment receive Improved Death Pension. For receive disability compensation or calculated under § 5.421(a). the requirements to establish status as a military retired pay for a service- (f) Maximum annual pension rate child and the custody rules for connected disability based on service means the amount of Improved Pension Improved Pension, see §§ 5.220(b) and during a period of war. payable to a beneficiary whose adjusted 5.417. annual income is zero. The maximum (d) Entitlement requirements for (Authority: 38 U.S.C. 1521(j), 1541(a), 1542) annual pension rates are established by Improved Disability or Death Pension. law. Maximum annual pension rates are In addition to the eligibility § 5.373 Evidence of age in Improved described in § 5.400. requirements of paragraphs (b) and (c) of Pension claims. (g) Net worth means the value of real this section, a claimant or beneficiary Where the age of a veteran or and personal property, as calculated must meet the following income and net surviving spouse is material to an under § 5.414. (h) Payments are cash and cash worth requirements to be entitled or to Improved Pension claim, VA will accept equivalents (such as checks and other continue to be entitled to Improved as true the veteran’s or surviving negotiable instruments), and the fair Pension: spouse’s statement of age where it is market value of personal services, (1) Income. Adjusted annual income consistent with all other statements of goods, or room and board received in cannot be greater than the applicable age in the record. If the record contains lieu of other forms of payment. maximum annual pension rate. inconsistent statements of age, VA will (i) Special monthly pension is a type (2) Net worth. Net worth must not bar use the youngest age of record unless of Improved Pension with higher payment of Improved Disability or the veteran or surviving spouse can file maximum annual pension rates than the Death Pension, as provided in § 5.414. documentation of an older age in one of rates for Improved Pension and is (Authority: 38 U.S.C. 1513, 1521, 1522, 1541, the ways outlined in § 5.229. payable to a claimant who is eligible for 1542, 5303A) (Authority: 38 U.S.C. 501(a))

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§§ 5.374–5.379 [Reserved] VA will establish permanence beginning Schedule for Rating Disabilities in part Improved Disability Pension: Disability on the date of admission into the 4 of this chapter is found to be Determinations and Effective Dates hospital. In other cases, permanence unemployable due to disability, age, will be established on the earliest date occupational background, and other § 5.380 Disability requirements for that it is shown by the evidence. related factors (such as level of Improved Disability Pension. (ii) In cases involving disabilities that education or vocational training), VA (a) General rule. Unless a veteran has require hospitalization for indefinite may approve on an extra-schedular attained age 65, he or she must be periods not otherwise established as basis a permanent and total disability permanently and totally disabled under permanently and totally disabling, VA rating for Improved Pension purposes. will establish that the disability was this section in order to be eligible for (Authority: 38 U.S.C. 501(a), 1502(a), 1513, Improved Disability Pension. In permanent as of the date of admission 1521(a), 1523(a), 1718(g)) determining whether a veteran is into the hospital if the claimant is permanently and totally disabled for hospitalized for at least 6 months Cross Reference: § 5.1, for the Improved Pension purposes, VA will without improvement. In other cases, definitions of ‘‘nursing home’’ and combine the disability ratings assigned permanence will be established on the ‘‘willful misconduct’’. to the veteran’s nonservice-connected earliest date that it is shown by the §§ 5.381–5.382 [Reserved] disability or disabilities with the ratings evidence. assigned to the veteran’s service- (iii) In cases involving active § 5.383 Effective dates of awards of connected disability or disabilities in pulmonary tuberculosis not otherwise Improved Disability Pension. the manner prescribed by the Schedule established as permanently and totally (a) General effective date provisions. for Rating Disabilities in part 4 of this disabling, VA will establish that the Except as provided in paragraph (b) or chapter. disability was permanent as of the date (c) of this section, the effective date of (b) Presumption of permanent and of admission into the hospital if the an award of Improved Disability total disability for certain veterans. A claimant is hospitalized for at least 6 Pension will be the later of either: veteran is presumed permanently and months without improvement. If such (1) The date of receipt of claim; or totally disabled for Improved Disability active pulmonary tuberculosis improves (2) The date the veteran became Pension purposes if the veteran is: after 6 months of hospitalization, but is eligible (by attaining age 65 or by (1) A patient in a nursing home for still diagnosed as active after 12 months becoming permanently and totally long-term care because of disability; or of hospitalization, permanence will also disabled) and entitled (by meeting the (2) Determined disabled by the be established as of the date of income and net worth requirements). Commissioner of Social Security for admission into the hospital. In other (b) Previously denied claims. If purposes of any benefits administered cases, permanence will be established pension was previously claimed but was by the Commissioner. on the earliest date that it is shown by denied because the veteran’s adjusted (c) Factual determination that a the evidence. annual income was greater than the veteran is permanently and totally (3) Veteran under age 40. In the case maximum annual pension rate, the disabled. Permanent and total disability of a veteran under 40 years of age, effective date of an award of Improved ratings for Improved Disability Pension permanence of total disability requires a Disability Pension will be the purposes are authorized for single finding that the end result of appropriate date under § 5.424. disabilities, or combinations of rehabilitation (that is, treatment for and (c) Retroactive award. The effective disabilities, that are not the result of the adjustment to residual handicaps) will date of a retroactive award of Improved veteran’s willful misconduct, whether be permanent disability precluding Disability Pension will be the date the or not they are service connected. In more than marginal employment. Severe veteran became permanently and totally addition to the criteria for determining diseases and injuries, including, but not disabled or the date of receipt of the total disability and permanency of total limited to, multiple fractures or the pension claim, whichever is to the disability contained in § 5.284, the amputation of a single extremity, should veteran’s advantage, if all of the following special considerations apply not be taken to establish permanent and following elements are established: in Improved Disability Pension cases: total disability until it is shown that the (1) The veteran specifically requests a (1) Congenital, developmental, veteran, after treatment and retroactive award; hereditary, and familial conditions. A convalescence, has been unable to (2) VA receives the claim for a permanent and total disability pension secure or follow employment because of retroactive award not more than 1 year rating will be authorized for a the disability and through no fault of the after the date the veteran became congenital, developmental, hereditary, veteran. permanently and totally disabled; and or familial condition, if the other (4) Evidence of employability. The (3) Due to disability, the veteran was requirements for such a rating are met. following elements will not be unable to file a claim for at least the first (2) Effective date. The permanence of considered as evidence of 30 days after the date that the veteran total disability will be established as of employability: became permanently and totally the earliest date that is shown by the (i) Employment as a member- disabled. The disability preventing the evidence. In cases where the claimant employee or similar employment veteran from filing a claim need not be has been hospitalized, apply the obtained only in competition with the same disability that made the following principles: disabled persons; and veteran permanently and totally (i) The need for hospitalization lasting (ii) Participation in, or the receipt of disabled, and need not require extensive any period of time may be a proper basis a distribution of funds as a result of hospitalization, but a disability that for determining permanence. If VA participation in, a therapeutic or requires extensive hospitalization is a cannot determine whether a disability rehabilitation activity under 38 U.S.C. disability that would prevent a veteran was permanent before the beginning of 1718. from filing a claim. A veteran will not a period of hospitalization, but evidence (5) Extra-schedular basis for Improved be found to have been unable to file a shows that the disability was permanent Pension. Where a veteran who fails to claim due to disability if the disability at some time during the hospitalization meet the disability requirements based resulted from the veteran’s willful and has not improved after such time, on the percentage standards of the misconduct.

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(Authority: 38 U.S.C. 5110(a) and (b)(3)) Permanently housebound means that available from any Veterans Service Cross Reference: § 5.1, for the the veteran is substantially confined to Center or Pension Management Center. definition of ‘‘willful misconduct’’. his or her residence (ward or clinical Whenever there is an increase in the areas, if institutionalized) and rates listed in this section, VA will §§ 5.384–5.389 [Reserved] immediate premises because of a publish notice in the Federal Register. disability or disabilities, and it is (a) A veteran who is permanently and Special Monthly Pension Eligibility for reasonably certain that such disability totally disabled or age 65 or older. a Veteran and Surviving Spouse or disabilities will not improve during (Authority: 38 U.S.C. 1521(b) or (c)) § 5.390 Special monthly pension for a the veteran’s lifetime. veteran or surviving spouse based on the (b) Surviving spouse. The surviving (b) A veteran who is housebound. need for regular aid and attendance. spouse is permanently housebound (Authority: 38 U.S.C. 1521(e)) A veteran or surviving spouse who is because of a disability or disabilities. (c) A veteran who needs regular aid eligible for Improved Pension may The meaning of ‘‘permanently and attendance. housebound’’ for a surviving spouse is receive special monthly pension based (Authority: 38 U.S.C. 1521(d)) on the need for regular aid and the same as its meaning for a veteran in attendance if the claimant: paragraph (a)(2) of this section. (d) Two veterans who are married to one another; combined rates. (a) Has 5/200 visual acuity or less in (Authority: 38 U.S.C. 1502(c), 1513, 1521(e), both eyes with corrective lenses; 1541(e)) (Authority: 38 U.S.C. 1521(f)) (b) Has concentric contraction of the (e) A surviving spouse. visual field to 5 degrees or less in both § 5.392 Effective dates of awards of special monthly pension. eyes; (Authority: 38 U.S.C. 1541(b) or (c)) (c) Is a patient in a nursing home (a) The effective date of an award of (f) A surviving spouse who is because of mental or physical special monthly pension will be the housebound. incapacity; or later of either: (1) The effective date of the award of (Authority: 38 U.S.C. 1541(e)) (d) Establishes a factual need for Improved Pension under § 5.383 or the (g) A surviving spouse who needs regular aid and attendance under award of Improved Death Pension under regular aid and attendance. § 5.320. § 5.431; or (Authority: 38 U.S.C. 1541(d)) (Authority: 38 U.S.C. 1502(b), 1521(d), (2) The date entitlement to special 1541(d)) monthly pension arose. (h) A surviving child of a deceased (b) Concurrent receipt of Improved veteran, when the child has no Cross Reference: § 5.1, for the custodian or is in the custody of an definition of ‘‘nursing home’’. Pension and Improved Death Pension. A veteran can receive Improved Pension institution. § 5.391 Special monthly pension for a in his or her own right and also be (Authority: 38 U.S.C. 1542) veteran or surviving spouse at the entitled to receive Improved Death housebound rate. Cross Reference: § 5.1, for the Pension based on the need for aid and definition of ‘‘custody of a child’’. A veteran who is eligible for attendance as a surviving spouse. Improved Pension may receive special However, special monthly pension § 5.401 Automatic adjustment of maximum monthly pension at the housebound rate based on the need for regular aid and annual pension rates. if he or she does not need regular aid attendance is not payable to the (a) Pension rates increase when Social and attendance and meets the criteria of surviving spouse while he or she is Security benefits increase. VA will paragraph (a) of this section. A receiving hospital care as a veteran. VA increase each maximum annual pension surviving spouse who is eligible for will resume special monthly pension rate whenever there is a cost-of-living Improved Pension may receive special based on the need for regular aid and increase in Social Security benefit monthly pension at the housebound rate attendance effective the day that he or amounts under title II of the Social if he or she does not need regular aid she was discharged or released from Security Act (42 U.S.C. 415(i)), which and attendance and meets the criteria of hospital care. See §§ 5.725 and 5.761. pertains to the Federal Old-Age, paragraph (b) of this section. (Authority: 38 U.S.C. 5110) Survivors, and Disability Insurance (a) Veteran with permanent and total Benefits program. VA will increase the disability. The veteran has a single, §§ 5.393–5.399 [Reserved] maximum annual pension rates by the permanent disability rated 100 percent same percentage as the Social Security Maximum Annual Pension Rates disabling under the Schedule for Rating increase, and the increase will be Disabilities in part 4 of this chapter § 5.400 Maximum annual pension rates for effective on the same date as the Social (determinations of unemployability a veteran, surviving spouse, or surviving Security increase. under § 4.17 of this chapter do not child. (b) New rates are published in the qualify), and either: The maximum annual rates of Federal Register. Whenever the (1) Has an additional disability or Improved Pension for the following maximum annual pension rates disabilities independently rated at 60 categories of beneficiaries are the increase, VA will publish the new rates percent or more disabling under VA’s amounts specified in 38 U.S.C. 1521, in the ‘‘Notices’’ section of the Federal Schedule for Rating Disabilities in part 1541, and 1542. The rates are higher if Register. 4 of this chapter. The additional a veteran has a spouse or dependent (Authority: 38 U.S.C. 5312(a)) disability or disabilities must be child, or if a surviving spouse has separate and distinct from the disability custody of the child of the deceased §§ 5.402–5.409 [Reserved] rated 100 percent disabling and must veteran. To see the maximum annual Improved Pension Income, Net Worth, involve different anatomical segments rate for each category, see the authority and Dependency or bodily systems than the disability citation under paragraphs (a) through rated 100 percent disabling; or (h) of this section. Current and historical § 5.410 Countable annual income. (2) Is ‘‘permanently housebound’’ maximum annual rates can be found on (a) Time of receipt of income.—(1) because of disability or disabilities. the Internet at http://www.va.gov or are Improved Disability Pension. For

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purposes of calculating countable during the reporting period in which it (2) Income from jointly-owned annual income for Improved Disability is received. property. Where a person owns property Pension, VA does not include income (ii) Short-term. Short-term recurring jointly with others, including, but not received before the effective date of the income stops before it has been received limited to, partnership property, VA veteran’s award. for at least one full reporting period. VA will only count that portion of income (2) Improved Death Pension. For will count such income as received produced by the property that purposes of calculating countable during the 12 month period starting on represents the person’s share of the annual income for Improved Death the first of the month after the initial ownership of the property. Pension, VA does not include income payment was received. Note to paragraph (f)(2): If a beneficiary’s received before the date of the veteran’s (2) Nonrecurring income. income includes that of his or her spouse, death or income received before the Nonrecurring income is income and both the beneficiary and spouse are co- effective date of the surviving spouse’s received or expected to be received on owners of a property that produces income, or surviving child’s award. a one-time basis (for example, an then income representing both co-owned (b) Whose income is countable?—(1) inheritance). VA will count such shares is included as income to the Improved Disability Pension for a income as received during the 12 month beneficiary. veteran. The income of a veteran period starting on the first of the month (3) Transfer of ownership with includes the veteran’s income and that after it was received. retention of income. If a person transfers of the veteran’s dependent spouse, (3) Irregular income. Irregular income ownership of property to another person regardless of whether the spouse’s is income received or expected to be or legal entity, but retains the right to income is available to the veteran. It received in unequal amounts or at income, the income will be counted. also includes the income of each different intervals during a reporting (g) Gambling income and losses. VA dependent child, subject to § 5.411. period. Irregular income is counted as will deduct from gambling gross (2) Improved Death Pension for a follows: winnings any gambling losses to arrive surviving spouse. The income of a (i) General rule. VA will count the at net gambling income. Only net surviving spouse includes the surviving first installment of irregular income as gambling income is countable. spouse’s income and the income of each received during the 12 month period (Authority: 38 U.S.C. 501(a), 1503, 1521, dependent child of the deceased veteran starting on the first of the month after 1541, 1542) in the surviving spouse’s custody, it was received. Thereafter, VA will subject to § 5.411. count irregular income for 12 months § 5.411 Counting a child’s income for (3) Improved Death Pension for a from the beginning of the reporting Improved Pension payable to a child’s surviving child. The income of a period in which it is received. parent. surviving child includes the surviving (ii) Overlapping irregular income. VA (a) General rule. VA counts as income child’s income and may include the will count the lower amount of irregular to the parent-beneficiary (that is, the income of that child’s custodian and the income from the same source during veteran or surviving spouse receiving income of other surviving children, as any overlapping periods. However, if Improved Pension), the annual income described in § 5.435. the irregular income for the calendar of every child of the veteran who is in Cross Reference: See § 5.416, Persons year is zero, then VA will count the the parent-beneficiary’s custody. considered as dependents for Improved irregular income for the full 12 month However, the parent-beneficiary may Pension. period. file a claim to exclude all or part of the (c) Categories and counting of income. (d) Waived income. If a person waives child’s income. Upon receipt of such a If there is more than one way to income that cannot be excluded under claim, VA will provide the parent- categorize income under paragraphs § 5.412, VA must count the waived beneficiary (claimant) with the proper (c)(1) through (3) of this section, it will income. However, if the person application used to calculate the be categorized in the way that is most withdraws a claim for Social Security exclusion. The bases for exclusion are favorable to the claimant or beneficiary. benefits in order to maintain eligibility set forth in paragraphs (b) and (c) of this Payments of any kind from any source for unreduced Social Security benefits section. will be counted as income during the upon reaching a particular age, VA will (b) All or part of the child’s income reporting period in which it was not regard this potential income as is not considered available for expenses received unless specifically excluded having been waived and will therefore necessary for reasonable family under this section, or § 5.411 or § 5.412. not count it. maintenance—(1) General rule. The See § 5.420. (e) Salary. Income from a salary is not parent-beneficiary may establish that all (1) Recurring income. Recurring determined by ‘‘take-home’’ pay. VA or part of the child’s adjusted annual income is income received or expected counts as income the gross salary income is not available to meet the to be received in equal amounts and at (earnings or wages) without any parent-beneficiary’s expenses necessary regular intervals (for example, weekly, deductions. However, an employer’s for reasonable family maintenance. monthly, quarterly, etc.). There are two contributions to health and These expenses include food, clothing, categories of recurring income: hospitalization plans are not included health-care, shelter, and other expenses (i) Long-term. Long-term recurring in gross salary. necessary to support a reasonable income continues for an entire reporting (f) Income-producing property. quality of life and cannot include period. VA will count such income Income from real or personal property expenses for items such as luxuries, during the reporting period in which it counts as income of the property’s gambling, and investments. was received. If the initial payment was owner. This includes, but is not limited (2) Examples. The following are received after the beginning of the to, property acquired through purchase, examples of common ways that a reporting period, VA will count such gift, or inheritance. parent-beneficiary may establish that a income as received during the 12 month (1) Proof of ownership. VA will child’s income is not considered period starting on the first of the month consider the terms of the recorded deed available. This is not an exclusive list: after the initial payment was received. or other evidence of title as proof of (i) The child’s income is being saved Thereafter, VA will count such income ownership. in an account for the child’s education;

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(ii) The child did not reside in the (ii) If the amount of the hardship of rehabilitation which is conducted by parent-beneficiary’s household for all or exclusion is zero or a negative number, a VA-approved State home and which part of the year; then no hardship exclusion is conforms to the requirements of 38 (iii) The child’s income is permitted. U.S.C. 1718. automatically routed into a trust (6) Effective date of exclusion. The (Authority: 38 U.S.C. 1503(a)(1), 1718(g)(3)) account under a court order; or effective date of a hardship exclusion (iv) The child lives with the parent- claim is determined in the same way as (c) Certain VA benefit payments. The beneficiary, but the child’s income is the effective date of pension awards following VA benefit payments: being received by someone outside of under § 5.424. (1) VA nonservice-connected that parent’s household. (Authority: 38 U.S.C. 1503(a)(10), 1521, 1541) disability or death pension payments, (c) Counting a child’s income would including, but not limited to, accrued create a hardship. The parent- Cross Reference: § 5.1, for the benefits. beneficiary may establish that counting definition of ‘‘custody of a child’’. (2) The veteran’s month-of-death rate all or part of the child’s countable § 5.412 Income exclusions for calculating paid to a surviving spouse under annual income, less any amount that is countable annual income. § 5.695. not available to the parent-beneficiary VA will not count income from the (Authority: 38 U.S.C. 1503(a)(2), 5310(b)) under paragraph (b) of this section, following sources when calculating would result in hardship. The formula (d) Casualty loss reimbursement. countable income for Improved Pension: Reimbursements of any kind (including to calculate the amount of any hardship (a) Items related to a child’s earned insurance settlement payments) for exclusion follows: income. A dependent child or a (1) Calculate the annual expenses expenses related to the repayment, surviving child’s earned income, which necessary for reasonable family replacement, or repair of equipment, is current work income received during maintenance. Calculate the annual vehicles, items, money, or property the reporting period, is countable for VA expenses necessary for reasonable resulting from (1) any accident (as purposes. VA will deduct from such family maintenance in accordance with defined by the Secretary), but the earned income the following amounts: amount excluded under this subclause paragraph (b)(1) of this section. The (1) The least amount of gross income shall not exceed the greater of the fair parent-beneficiary’s annual expenses for which an unmarried person must file market value or reasonable replacement necessary for reasonable family a Federal Income Tax return if the value of the equipment or vehicle maintenance cannot include expenses person is not a surviving spouse or a involved at the time immediately already deducted in determining the head of household. For the law preceding the accident; parent-beneficiary’s or the child’s regarding this amount, see 26 U.S.C. adjusted annual income. 6012. For the definitions of the terms (2) Any theft or loss (as defined by the (2) Subtract the parent-beneficiary’s ‘‘unmarried person’’, ‘‘surviving Secretary), but the amount excluded adjusted annual income. Subtract from spouse’’, and ‘‘head of household’’ for under this subclause shall not exceed the annual expenses (paragraph (c)(1) of purposes of this paragraph (c), see 26 the greater of the fair market value or this section), the parent-beneficiary’s U.S.C. 2(a) and (b), 7703. See also http:// reasonable replacement value of the adjusted annual income, as calculated www.irs.gov. item or the amount of the money under this part. (2) The amount that the child pays for (including legal tender of the United Note to paragraph (c)(2): This number will educational expenses, if the child is States or of a foreign country) involved include the child’s adjusted annual income, pursuing post-secondary education or at the time immediately preceding the because such income is countable to the vocational rehabilitation, including, but theft or loss; or parent-beneficiary with custody of such child (3) Any casualty loss (as defined by under paragraph (a) of this section. not limited to, tuition, fees, books, and materials. the Secretary), but the amount excluded (3) Subtract any of the child’s income under this subclause shall not exceed that is not considered available. (Authority: 38 U.S.C. 1503(a)(10)) the greater of the fair market value or Subtract from the number calculated (b) Donations received. Donations reasonable replacement value of the under paragraph (c)(2) of this section received from public or private relief or property involved at the time any of the child’s income that was not welfare organizations, including, but not immediately preceding the casualty reasonably available under paragraph limited to: loss. (b) of this section. (1) The value of maintenance (Authority: 38 U.S.C. 1503(a)(5)) (4) Subtract the annual Improved furnished by a relative, friend, or a civic Pension amount. Subtract the parent- or governmental charitable organization, (e) Profit from sale of non-business beneficiary’s annual Improved Pension including, but not limited to, money property. Profit realized from the amount, which is the applicable paid to an institution for care due to a disposition of real or personal property maximum annual pension rate less the person’s impaired health or advanced other than in the course of a business. parent-beneficiary’s adjusted annual age. However, if the maintenance is However, any amounts received in income as calculated in paragraph (c)(2) excluded as income under this excess of the sales price, such as interest of this section. provision, VA cannot deduct it as an payments on deferred sales, will be (5) The amount of hardship exclusion. unreimbursed medical expense under counted as income. If payments are (i) The amount of the hardship § 5.413. received in installments, the exclusion is the lesser of: (2) Benefits received under means- installments received will not begin to (A) The resulting amount in tested programs, for example, count as income until the total of paragraph (c)(4) of this section; or Supplementary Security Income installments received is equal to the (B) The amount of the child’s income payments. sales price. The following exceptions that is considered available to the (3) Payments from the VA Special apply: parent-beneficiary, that is, the child’s Therapeutic and Rehabilitation (1) Bonds. If the redemption of a bond adjusted annual income minus any Activities Fund for participating in VA- issued by a federal, state, municipal or amount calculated under paragraph (b) approved therapy or rehabilitation other political entity is required for the of this section. under 38 U.S.C. 1718, or in a program payment of accrued interest, then the

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accrued interest payable is excluded (7) Benefits payable but withheld, section, the following medical expenses from income. such as Social Security withheld to are deductible: (2) Life insurance. If the surrender of recoup an overpayment. This does not (i) Improved Disability Pension. a life insurance policy is required to apply to VA benefits withheld to recoup Amounts paid by the veteran or the obtain the proceeds, then the interest an overpayment. veteran’s dependent spouse for the received is excluded from income. (8) Lump-sum proceeds of any life unreimbursed medical expenses of the (Authority: 38 U.S.C. 1503(a)(6)) insurance policy on a veteran. veteran; the veteran’s dependent spouse; (m) Payments listed in § 5.706. and any or all of the following persons (f) Joint accounts. Amounts in joint (n) State compensation for veterans. who are also members or constructive accounts in banks or similar financial Payment of a monetary amount of up to members of the veteran’s or dependent institutions acquired because of the $5,000 to a veteran from a State or spouse’s household: A child, a parent, death of the other joint owner. municipality that is paid as a veterans or another relative for whom there is a (Authority: 38 U.S.C. 1503(a)(7)) benefit due to injury or disease. moral or legal obligation of support. (g) Survivor benefit annuity. Payments (Authority: 38 U.S.C. 1503) (ii) Improved Death Pension: made by the Department of Defense to surviving spouse beneficiary. Amounts a qualified surviving spouse of a veteran § 5.413 Income deductions for calculating paid by the surviving spouse for both who died before November 1, 1953. adjusted annual income. the surviving spouse’s unreimbursed (This does not include Survivor Benefit (a) General rule. Except as otherwise medical expenses and those of any or all Plan (SBP) annuity payments or SBP provided in paragraph (c)(2)(iv) of this of the following persons who are also Minimum Income Widow(er)’s Annuity section, expenses and losses are members or constructive members of the Plan payments, which count as income.) deducted for the initial reporting period surviving spouse’s household: A child, or the annual reporting period during a parent, or another relative for whom (Authority: 10 U.S.C. 1448 note; Sec. 653(d), Pub. L. 100–456, 102 Stat. 1991) which the expense was paid, regardless there is a moral or legal obligation of of when the expense was incurred. For support. (h) Radiation Exposure Compensation the definitions of ‘‘initial reporting (iii) Improved Death Pension: Act payments. Payments made under period’’ and ‘‘annual reporting period’’, surviving child beneficiary. Amounts section 6 of the Radiation Exposure see § 5.420. paid by a surviving child for the Compensation Act of 1990. (b) Unreimbursed (out-of-pocket) surviving child’s unreimbursed medical (Authority: 42 U.S.C. 2210 (note)) medical expenses. VA will deduct from expenses and those of a parent, brother, (i) Ricky Ray Hemophilia Relief Fund countable annual income unreimbursed or sister. payments. Payments made under (out-of-pocket) medical expenses (Authority: 38 U.S.C. 1503(a)(8)) section 103(c) and excluded under (identified in paragraph (b)(2) of this (c) Final expenses.—(1) Definitions.— 103(h)(2) of the Ricky Ray Hemophilia section) that were paid within the (i) Final expenses. For purposes of this Relief Fund Act of 1998. reporting period, regardless of when the beneficiary incurred the debt, as section, ‘‘final expenses’’ are expenses (Authority: 42 U.S.C. 300c–22 (note)) specified in paragraph (b)(1) of this paid by an Improved Pension (j) Energy Employees Occupational section. See § 5.707. For purpose of beneficiary for a veteran’s, spouse’s, or Illness Compensation Program authorizing prospective Improved child’s last illness and burial. In payments. Payments made under the Pension payments, VA will accept a Improved Death Pension cases, final Energy Employees Occupational Illness clear and reasonable estimate of expenses also include a veteran’s just Compensation Program. expected future medical expenses, but debts. (Authority: 42 U.S.C. 7385e(2)) such future expenses may be adjusted (ii) Last illness. For purposes of this based on receipt of an amended estimate section, last illness means the medical (k) Payments to Aleuts. Payments or of a medical expense report. condition that was the primary or made to certain Aleuts under 50 U.S.C. Improved Pension beneficiaries must secondary cause of a person’s death as app. 1989c–5. report any change in medical expenses indicated on the person’s death (Authority: 50 U.S.C. app. 1989c–5(d)(2)) if they are claiming any medical certificate. (l) Other amounts. The following expense deductions under this section. (iii) Veteran’s just debts. For purposes incomes are excluded because VA does (1) Amount of deductible of this section, a veteran’s ‘‘just debts’’ not consider them as ‘‘payments’’: unreimbursed medical expenses. VA are those debts that the veteran incurred (1) Dividends from commercial will deduct unreimbursed (out-of- or those debts that the veteran and insurance policies and cash surrender of pocket) medical expenses that exceed 5 spouse incurred jointly during the life insurance to the extent that they percent of the beneficiary’s maximum veteran’s life. The term ‘‘just debts’’ represent return of premiums. However, annual pension rate that is in effect for does not include any debt that is interest earned is considered a payment. the period(s) during which VA deducts secured by real or personal property. (2) Income tax refunds. the expenses. The maximum annual (2) Final expenses that VA will deduct (3) Interest on Individual Retirement pension rate that VA uses for this from countable annual income.—(i) Accounts that cannot be withdrawn calculation includes the maximum Veteran awards. VA will deduct without incurring a penalty. annual pension rates for an established amounts paid by a veteran for the last (4) Interest on prepaid burial plans dependent but does not include the illness and burial of the veteran’s that is added to the value of the policy maximum annual pension rates based spouse or child, and amounts paid by a and is not available to the policy holder. on the need for regular aid and veteran’s spouse for the last illness and (5) Royalties received for extracting attendance or housebound status. burial of the veteran’s child. minerals. (2) Deductible unreimbursed medical (ii) Surviving child awards. VA will (6) School scholarships and grants expenses. In no case will VA deduct as deduct amounts paid by a surviving earmarked for specific educational a medical expense any ‘‘final expense’’ child for the veteran’s final expenses. purposes to the extent they are used for defined in paragraph (c) of this section. (iii) Surviving spouse awards. VA will those purposes. Subject to paragraph (b)(1) of this deduct amounts paid by a surviving

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spouse for the final expenses of the disability any medical, legal, or other minus mortgages or other encumbrances veteran or the veteran’s child. expenses that are incident to such death on such property. (iv) Surviving spouse’s prior payments or disability or are incident to the (2) Establishing ownership of an asset. of veteran’s last illness expenses. VA collection or recovery of such an award VA will consider the terms of the will deduct amounts reported during or settlement. However, medical recorded deed or other evidence of title the surviving spouse’s initial reporting expenses cannot be deducted under this to be proof of ownership of a particular period if: paragraph (e) if they are paid after the asset. (A) The amounts were paid by the date that the award or settlement (i) Property given to a relative. If a surviving spouse before the veteran’s payment was received. Medical claimant or beneficiary gives property to death for the veteran’s last illness; expenses paid after that date may be a relative living in the same household, (B) The surviving spouse made the deducted under paragraph (b) of this VA will include the value of the payments no earlier than 1 year before section as unreimbursed medical property as part of the claimant’s or the veteran died; and expenses. VA will not deduct the same beneficiary’s net worth. This also (C) VA received the surviving medical expenses under paragraph (b) of applies if the claimant or beneficiary spouse’s Improved Death Pension claim this section that it deducts under this sells the property to a relative in the no later than 1 year after the veteran’s paragraph (e). For purposes of this same household at such a low price that death. paragraph (e), the award or settlement it amounts to a gift. (3) Final expenses that VA will not may be received from any of the (ii) Property given to a non-relative. If deduct from countable annual income. following sources: a claimant or beneficiary gives property VA will not deduct final expenses from (1) Commercial insurance proceeds to someone other than a relative living a beneficiary’s countable annual income (disability, accident, life, or health); in the same household, VA will include if: (2) The Office of Workers’ the value of the property as net worth (i) The expenses are reimbursed under Compensation Programs of the U.S. unless the claimant or beneficiary has 38 U.S.C. chapter 23 (see subpart J of Department of Labor; given up all rights of ownership, this part concerning VA burial benefits); (3) The Social Security including, but not limited to, the right or Administration; to control the property. (ii) The expenses of a veteran’s last (4) The Railroad Retirement Board; (b) Property excluded from net worth. illness were allowed as a medical (5) Any worker’s compensation or Net worth does not include the expense deduction on the veteran’s employer’s liability statute; or following elements: (1) Value of the primary residence pension or parents’ dependency and (6) Legal damages collected for (single-family unit), which also includes indemnity compensation (DIC) account personal injury or death. during the veteran’s lifetime. a reasonably sized lot. The primary (Authority: 38 U.S.C. 501(a)) residence will not be included as net (Authority: 38 U.S.C. 1503(a)(3), (4)) (f) Business, farm, or professional worth simply because the veteran has (d) Educational expenses. VA will practice—(1) Necessary operating moved into a nursing home. deduct educational expenses from a expenses. VA will deduct from income (i) Personal mortgage not deductible veteran’s or surviving spouse’s produced by a business, farm, or from net worth. Because the value of a countable annual income. Educational professional practice the necessary primary residence is not considered, VA expenses means payments a veteran or operating expenses (such as the cost of will not subtract from net worth under surviving spouse makes for his or her goods sold and payments for rent, taxes, paragraph (a) of this section the amount course of education, vocational upkeep, repairs, and replacements) of of any mortgages or encumbrances on rehabilitation, or training. It includes, that business, farm, or professional such property. but is not limited to, tuition, fees, books, practice. Only the net of such income is (ii) Reasonably sized lot defined. VA and materials. If the veteran or surviving countable. The value of an increase in will evaluate a ‘‘reasonably sized lot’’ by spouse needs regular aid and stock inventory of a business is not considering the size of other residential attendance, it also includes income. lots in the vicinity. If the residential lot unreimbursed unusual transportation (2) Depreciation. Depreciation of a is larger than other such lots in the expenses associated with the pursuit of business, farm, or professional practice vicinity, VA will exclude only the value the course of education, vocational is not deductible from income produced of the reasonably sized lot and include rehabilitation, or training. VA considers by that business, farm, or professional the value of the rest of the lot as part transportation expenses ‘‘unusual’’ if practice. of net worth. If the real property is a they are greater than the amount a (3) Business and investment losses. farm, VA will exclude the value of a person without a disability would Losses sustained in operating a reasonably sized lot, including the reasonably spend on an appropriate business, farm, or professional practice, residence area, and consider the rest of means of transportation (public or from transactions involving the farm as part of net worth. (2) Value of personal effects suitable transportation, if reasonably available). investment property, may be deducted to and consistent with a reasonable Educational expenses that are only from income derived from the mode of life, such as appliances and reimbursed by scholarships or grants are source that sustained the loss. not deductible. family transportation vehicles. See also § 5.412(a)(2) (concerning (Authority: 38 U.S.C. 501(a)) (3) Child educational exclusion. deducting a child’s educational When calculating a child’s net worth, expenses from his or her earned § 5.414 Net worth determinations for whether as a dependent or as a claimant Improved Pension. income). (surviving child), VA will exclude (a) How to calculate net worth—(1) reasonable amounts for actual or (Authority: 38 U.S.C. 1503(a)(9)) General formula. For Improved Pension estimated future educational or (e) Expenses and awards or purposes, net worth is the market value vocational expenses. VA will exclude settlements for death or disability. VA of all real and personal property owned only the amount needed to cover the will deduct from income received based by the claimant or beneficiary or listed child’s educational or vocational on an award or settlement for death or under paragraph (c) of this section, expenses until he or she reaches age 23.

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(4) Radiation Exposure Compensation the net worth should be used for living of the year after the year that net worth Act payments. Payments made under expenses. However, there may be increased. Section 6 of the Radiation Exposure exceptions to the guidelines stated in (Authority: 38 U.S.C. 5112(b)(4)(B)) Compensation Act of 1990. this paragraph (d) based on the facts of (b) Claims previously denied or (Authority: 42 U.S.C. 2210 (note)) each case. (2) Relevant factors. The following awards previously discontinued because (5) Ricky Ray Hemophilia Relief Fund factors are considered in determining of net worth. When a claim for Improved payments. Payments made under whether it is reasonable to expect that Pension has been denied, or an award section 103(c) and excluded under part of the net worth should be used for of Improved Pension has been reduced 103(h)(2) of the Ricky Ray Hemophilia the claimant’s or beneficiary’s living or discontinued, due to excessive net Relief Fund Act of 1998. expenses: worth, a claimant or former beneficiary (Authority: 42 U.S.C. 300c–22 (note)) (i) The adjusted annual income and may reapply for Improved Pension if (6) Energy Employees Occupational the adjusted annual income of any there is a reduction in net worth. See Illness Compensation Program person whose net worth is considered § 5.414(d). If net worth ceases to be a bar payments. Payments made under the part of the claimant’s or beneficiary’s before the previous denial or Energy Employees Occupational Illness net worth. discontinuance has become final, the Compensation Program. (ii) Living expenses. However, in effective date of resumption of pension considering the claimant’s or benefits will be the date that net worth (Authority: 42 U.S.C. 7385e(2)) beneficiary’s living expenses, VA cannot ceased to be a bar. If net worth ceases (7) Payments to Aleuts. Payments consider expenses it excluded or to be a bar after the previous denial or made to certain Aleuts under 50 U.S.C. deducted in determining adjusted discontinuance has become final, the App. 1989c–5. annual income. effective date of resumption of pension (Authority: 50 U.S.C. App. 1989c–5(d)(2)) (iii) The average life expectancy for a benefits will be assigned under § 5.383 person of the same age as the claimant or § 5.431. (8) Other payments. Other payments or beneficiary and the potential rate of (Authority: 38 U.S.C. 5110(a)) excluded from net worth listed in depletion of net worth. § 5.706. (iv) The value of liquid assets (assets Cross Reference: § 5.57, Claims (c) Net worth of relatives of the that the claimant or beneficiary can definitions. claimant or beneficiary counted as net readily convert into cash). § 5.416 Persons considered as worth. (v) The number of family members (as (1) Veteran. The veteran’s net worth dependents for Improved Pension. defined in § 5.300) who depend on the includes the net worth of his or her claimant or beneficiary for support. (a) Factors for a veteran’s dependent spouse. (e) How a veteran’s child’s net worth spouse. A veteran’s spouse is a (2) Surviving spouse. The surviving affects an Improved Pension award to a dependent spouse for Improved spouse’s net worth only includes the net parent who has custody of that child. A Disability Pension purposes if at least worth of the surviving spouse. veteran’s child’s net worth affects an one of the following factors applies: (3) Surviving child—(i) Surviving (1) The veteran lives with the spouse; child without a custodian or Improved Pension award to a parent (2) The veteran and the spouse live institutionalized. If a surviving child has who has custody of that child. If a apart but are not estranged; or no custodian or is in the custody of an child’s net worth is such that under all institution, VA will consider only the circumstances, including consideration (3) The veteran and the spouse live child’s net worth and adjusted annual of the veteran’s or surviving spouse’s apart and are estranged, but the veteran income when determining whether net adjusted annual income, it is reasonable provides reasonable contributions to the worth is a bar to Improved Death to expect that part of the child’s net spouse’s support. Whether support Pension under paragraph (d) of this worth be consumed for the child’s contributions are reasonable is a factual section. maintenance, such a child will not be matter that VA determines. (ii) Surviving child living with a considered a dependent for Improved (b) Factors for a dependent child. custodian. If the surviving child has a Pension. Unless paragraph (c) of this section custodian other than an institution, the (Authority: 38 U.S.C. 1522, 1543) applies, a child is a dependent child for Improved Pension purposes if at least child’s net worth includes that person’s Cross Reference: § 5.1, for the one of the following factors applies: net worth. If the child is in joint custody definition of ‘‘custody of a child’’. as provided in § 5.417(b), the child’s net (1) The child is in the veteran’s or worth includes both custodians’ net § 5.415 Effective dates of changes in surviving spouse’s custody; or worth. Improved Pension benefits based on (2) The veteran provides reasonable (d) How net worth bars an award of changes in net worth. contributions to the child’s support. Improved Pension.—(1) General rule. (a) Effective date of reduction or Whether support contributions are VA cannot pay Improved Pension if it discontinuance of Improved Pension reasonable is a factual matter that VA is reasonable to expect that part of the award when net worth increases—(1) determines. claimant’s or beneficiary’s net worth, as Beneficiary. If an increase in a (c) When a child’s net worth bars calculated under this section, should be beneficiary’s net worth requires VA to dependency status. If a child’s net worth used for the claimant’s living expenses. discontinue Improved Pension, VA will is a bar, under § 5.414(e), to payment of This applies to new claims for, and to discontinue the Improved Pension additional Improved Pension for that ongoing entitlement to, Improved award effective the first day of the year child, then that child is not a dependent Pension. Generally, when net worth is after the year that net worth increased. child for Improved Pension purposes. $80,000 or more, it is reasonable to (2) Child. If an increase in a child’s expect that part of the net worth should net worth requires VA to reduce or (Authority: 38 U.S.C. 1521, 1522(b), 1541, 1543(a)(2)) be used for living expenses. Generally, discontinue that child’s dependency when net worth is less than $80,000, it under § 5.414(e), VA will adjust the Cross Reference: § 5.1, for the is not reasonable to expect that part of payment amount effective the first day definition of ‘‘custody of a child’’.

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§ 5.417 Child custody for purposes of adjustments to income. However, the the effective date that the maximum determining dependency for Improved claimant or beneficiary may report a annual pension rate changes. VA then Pension. change in income or net worth when the determines the new monthly payment For purposes of Improved Pension: change occurs. There are two types of amount as specified in paragraph (a) of (a) Presumption of custody. A child’s reporting periods: The initial reporting this section. natural or adoptive parent, or a person period and the annual reporting period. (c) Changes in adjusted annual or institution with legal responsibility (a) Initial reporting period—(1) income. If a beneficiary’s adjusted for that child, is presumed to be the General rule. Except as provided in annual income increases or decreases, child’s custodian unless there has been paragraphs (a)(2) and (3) of this section, VA recalculates the annual Improved a legal determination removing custody. the initial reporting period begins on the Pension amount using the new adjusted (b) Presumption of joint custody. If a latest of the following dates: annual income amount. VA then child’s natural or adoptive parent is (i) The date VA receives a pension determines the new monthly payment married to someone other than the claim; amount as specified in paragraph (a) of child’s other natural or adoptive parent, (ii) The date VA receives an election this section. See § 5.422. the child is presumed to be in the joint under § 5.460 or § 5.463; or (Authority: 38 U.S.C. 1521, 1541, 1542, and custody of the natural or adoptive (iii) The date the claimant becomes 5123) parent and stepparent unless: eligible to receive Improved Pension. (i) The child’s stepparent and natural (2) Retroactive awards. For Improved § 5.422 Effective dates of changes to or adoptive parent are estranged and Pension claims where an effective date annual Improved Pension payment amounts due to a change in income. living apart; or before the date of claim is assigned (ii) Custody is legally removed from pursuant to § 5.383(b), the initial (a) Effective dates of changes to the natural or adoptive parent. reporting period begins on the date the payment amounts due to a change in (c) Custody retained after the age of veteran became permanently and totally income—(1) Increased annual Improved majority. A child over age 18 is disabled if that would be to the Pension amount. If an income change presumed to remain in the custody of veteran’s advantage. If it would not be requires an increased annual Improved the person whose custody the child was to the veteran’s advantage, then the Pension amount, the effective date of in before attaining age 18, unless initial reporting period begins on the the increased amount is the date that the custody is legally removed. This applies date of the pension claim. income changes, subject to § 5.424. without regard to whether a child has (3) Improved Death Pension claim However, VA generally cannot pay an reached the age of majority under received no later than 1 year after date increased amount of Improved Pension applicable State law. This also applies of veteran’s death. When VA receives an based on a change in income until the without regard to whether the child was Improved Death Pension claim no later first day of the month after such an eligible for pension before age 18, or than 1 year after the date of the veteran’s income change. See § 5.693 (concerning whether increased pension was payable death, the initial reporting period begins dates for increased payments and to a veteran or surviving spouse for the on the day that the veteran died. This exceptions). child before the child’s 18th birthday. is true even though the effective date (2) Reduced annual Improved Pension (d) Successor custodian after the age under § 5.695 is the first day of the amount or discontinuance of Improved of majority. If a child’s custodian dies month of death. See § 5.431 for effective Pension. If an income change requires a after the child’s 18th birthday, VA will dates and rule applicability. reduction of an annual Improved presume that the child is in the custody (4) End of period. The initial reporting Pension amount or the discontinuance of a successor custodian, but if there is period ends 1 year after the last day of of Improved Pension, the effective date no successor custodian, the child may the month in which the period began. of the reduced amount or be eligible for benefits in his or her own (b) Annual reporting period. For discontinuance is the first day of the right. Improved Pension purposes, the annual month after the income change. (b) Effective dates for counting income reporting period is each calendar year. (Authority: 38 U.S.C. 501(a), 1521, 1541) of a dependent.—(1) Dependent The first annual reporting period is the removed from Improved Pension award. Cross Reference: § 5.1, for the calendar year in which the initial VA will stop counting a dependent’s definitions of ‘‘custody of a child’’ and reporting period ends. ‘‘State’’. § 5.220(b)(2), Status as a child income on the same date it removes the for benefit purposes, (enumerating (Authority: 38 U.S.C. 1506, 1521, 1541, 1542) dependent from the Improved Pension situations in which a person is award. recognized as a child after attaining age § 5.421 How VA calculates an Improved (2) Added dependent increases 18). Pension payment amount. Improved Pension award. If a (a) How VA calculates a monthly beneficiary gains a dependent and this §§ 5.418–5.419 [Reserved] Improved Pension payment amount. To results in an increased annual Improved Improved Pension: Income Reporting calculate the monthly Improved Pension Pension amount, the effective date of Periods, Payments, Effective Dates, and payment amount, VA divides the annual the increase will be the date of the Time Limits Improved Pension amount by 12 and addition of the dependent if the rounds down to the nearest whole evidence showing the dependency is § 5.420 Reporting periods for Improved dollar. received no later than 1 year after the Pension. (b) Changes in maximum annual addition of the dependent. If such When calculating adjusted annual pension rate. When there is a change in evidence is not received within 1 year income, VA counts income that is a beneficiary’s maximum annual after the addition of the dependent, then reported by a claimant or beneficiary pension rate (because of a cost-of-living the effective date will be the date such during a ‘‘reporting period.’’ A adjustment or some other reason), VA evidence is received. ‘‘reporting period’’ is a time period recalculates the annual Improved (3) Loss of a dependent increases established by VA during which a Pension amount using the new Improved Pension award. If a claimant or beneficiary must report to maximum annual pension rate and the beneficiary loses a dependent and this VA all income, net worth, and amount of adjusted annual income on results in an increased annual Improved

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Pension amount, the effective date of (3) Adjust the annual Improved payment for the initial reporting period the increase will be the date VA receives Pension amount using the applicable or requires VA to discontinue payment notice of the loss of the dependent if the maximum annual pension rate when for an entire reporting period. In such evidence showing the loss of a evidence necessary to establish the cases, VA may award Improved Pension dependent is received no later than 1 dependent’s relationship has been effective the date entitlement arose but year after of the loss of the dependent. received. (For the evidence necessary to not earlier than the beginning of the If such evidence is not received within establish dependency, see Subpart D of next reporting period (the new initial 1 year after the loss of the dependent, this part.) reporting period), if the claimant or then the effective date will be the date (Authority: 38 U.S.C. 501(a), 1503) beneficiary submits evidence before that such evidence is received. reporting period ends. If the claimant or § 5.424 Time limits to establish entitlement (Authority: 38 U.S.C. 501(a), 5110, 5112) to Improved Pension or to increase the beneficiary does not submit evidence of Cross Reference: § 5.177(g), Effective annual Improved Pension amount based on entitlement within this time limit, VA dates for reducing or discontinuing a income. may only pay benefits effective the date benefit payment or for severing service (a) Scope. If a claimant (including any it receives a new claim, except as connection, (concerning reducing or former beneficiary) or beneficiary provided in paragraph (d) of this discontinuing pension payments submits additional evidence within the section. because of a change in disability or time limits in this section, then VA may (d) No time limit to submit income employability status). award or increase benefits for prior evidence to reduce overpayment. Solely periods as set forth in this section. for purpose of reducing an § 5.423 Improved Pension determinations (b) Expected or actual income—(1) when expected annual income is uncertain. overpayment, there is no time limit to Pension not paid. When VA does not submit income evidence, including, but (a) Uncertain expected annual award pension based on actual or not limited to, deductible expenses. income. Expected annual income is the expected adjusted annual income However, the evidence submitted must annual income a claimant or beneficiary during the initial reporting period, the anticipates receiving during a given claimant may submit evidence that relate to the initial or annual reporting reporting period. If a claimant or supports entitlement for all or part of period for which the overpayment was beneficiary is uncertain about the that period. If the claimant submits created. amount of his or her expected annual additional evidence on or before (Authority: 38 U.S.C. 501(a), 5110(h)) income or if there is evidence indicating December 31 of the calendar year after more expected annual income than the the calendar year in which the initial § 5.425 Frequency of payment of Improved amount reported by the claimant or reporting period ends, VA may award Pension benefits. beneficiary, VA will take all of the benefits effective from the beginning of VA issues payments of Improved following actions: the initial reporting period, subject to Pension as provided in this section. (1) Count the greatest amount of the provisions of § 5.383 or § 5.431. If Except as provided in paragraph (e) of expected annual income the claimant or the claimant does not submit evidence this section, a beneficiary may choose to beneficiary estimates or that is indicated of entitlement within this time limit, VA receive monthly payments if other by the evidence and adjust or pay may only pay benefits effective from the Federal benefits would be denied benefits based on that amount. If that date it receives a new claim. because pension payments are issued (2) Pension paid at a lower amount or amount is greater than the maximum less frequently than monthly. annual pension rate, Improved Pension discontinued. When VA pays pension at will not be paid; a lower amount or discontinues pension (a) Monthly if $228 or more. VA will (2) Send notice to the claimant or benefits for all or part of a reporting make a payment every month if the beneficiary concerning the time limit period based on the claimant’s or annual Improved Pension amount is provisions of § 5.424; and beneficiary’s actual or expected adjusted $228 or more. (3) Adjust or pay benefits when annual income, the claimant (including (b) Every 3 months if at least $144 but complete income information is any former beneficiary) or beneficiary less than $228. VA will make a payment received, according to the provisions of may submit evidence that supports every 3 months if the annual Improved § 5.424. entitlement or increased entitlement for Pension amount is at least $144 but less (b) Uncertain dependent information. all or part of that period. If the claimant than $228. Payment dates will be on or If a dependent’s expected annual or beneficiary submits additional about March 1, June 1, September 1, and income is greater than the difference evidence on or before December 31 of December 1. between the increased maximum annual the calendar year after the calendar year pension rate based on the addition of in which the reporting period ends, VA (c) Every 6 months if at least $72 but the dependent and the maximum may award, resume, or increase benefits less than $144. VA will make a payment annual pension rate without the effective from the date entitlement arose every 6 months if the annual Improved dependent, but the claimed dependent’s but not earlier than the beginning of the Pension amount is at least $72 but less relationship has not yet been reporting period. If the claimant or than $144. Payment dates will be on or established by required evidence, VA beneficiary does not submit evidence of about June 1 and December 1. will take the following actions: entitlement within this time limit, VA (d) Once a year if less than $72. VA (1) Determine the maximum annual may only pay or increase benefits will make a payment once a year if the pension rate without consideration of effective from the date it receives a new annual Improved Pension amount is less the claimed dependent; claim, except as provided in paragraph than $72. The payment date will be on (2) Count the claimed dependent’s (c) or (d) of this section. or about June 1. income as income of the claimant or (c) Payment following nonentitlement beneficiary for purposes of determining for one reporting period. This paragraph (e) Payments of less than one dollar entitlement to Improved Pension and (c) applies if the claimant (including are not made. VA will not make a determining the annual Improved any former beneficiary) or beneficiary’s payment of less than one dollar. Pension amount; and adjusted annual income does not permit (Authority: 38 U.S.C. 1508)

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§§ 5.426–5.429 [Reserved] (3) Death benefits not to be paid effective before the date VA received the Improved Death Pension Marriage Date concurrently with military benefits. VA new surviving spouse’s claim. If benefits Requirements and Effective Dates will not pay benefits to a claimant on a are payable to the new surviving spouse report of actual death for periods that from a date before the date VA received § 5.430 Marriage date requirements for the claimant has received, or was the new surviving spouse’s claim, VA Improved Death Pension. entitled to receive, any of the following will discontinue the award to the former A surviving spouse may qualify for military entitlements of the veteran: surviving spouse effective the date of Improved Death Pension if the marriage (i) An allowance; the award to the new surviving spouse. to the veteran occurred before or during (ii) An allotment; or (2) Discontinuance date of the award his or her service or, if the marriage (iii) Service pay. to the former surviving spouse where meets one of the following criteria: (Authority: 38 U.S.C. 5110(a), (d), (j)) award to the new surviving spouse is (a) The veteran and surviving spouse effective the date VA received the new were married for 1 year or more § 5.432 Deemed valid marriages and surviving spouse’s claim. If benefits are (multiple marriage periods may be contested claims for Improved Death payable to the new surviving spouse added together to meet the 1-year Pension. from the date VA received the new requirement). (a) Definition of contested claim. For surviving spouse’s claim, VA will (b) A veteran of one of the following purposes of this section, a claim is a discontinue the award to the former wartime periods and the surviving ‘‘contested claim’’ when claims are filed surviving spouse effective the later of spouse were married before one of the both by a claimant seeking recognition the following dates: following delimiting dates: as a deemed valid surviving spouse (i) The date of receipt of the new (1) World War II: January 1, 1957. under § 5.201, and by a surviving surviving spouse’s claim; or (2) Korean Conflict: February 1, 1965. spouse eligible for Improved Death (ii) The first day of the month after the (3) Vietnam Era: May 8, 1985. Pension. month VA last paid benefits. (4) Persian Gulf War: January 1, 2001. (b) VA adjudication of contested (3) Exception where discontinuances (c) A child was born of the marriage claims. VA will take the following steps are due to a change in, or change in or born to them before the marriage. in adjudicating a contested claim: interpretation of, the law or an (Authority: 38 U.S.C. 103(b), 1541(f)) (1) Develop the claims of both the administrative issue. When VA must Cross Reference: § 5.1(j), for the surviving spouse and the claimant discontinue payments to a former definition of ‘‘child born of the seeking recognition as the surviving surviving spouse because of a change in marriage’’ and ‘‘child born before the spouse; then the law or an administrative issue or marriage’’. (2) Afford each claimant the because of a change in the interpretation applicable time period provided in of the law or an administrative issue, § 5.431 Effective dates of Improved Death § 5.424(b) to show his or her adjusted VA will discontinue the award to the Pension. annual income is less than the former surviving spouse effective the (a) Nonservice-connected death after maximum annual pension rate; and then first day of the month after the end of separation from service—(1) Claim (3) If the surviving spouse does not the 60-day notice period to the former received no later than 1 year after the establish entitlement to Improved Death surviving spouse concerning the date of death. If VA awards Improved Pension before the end of the applicable discontinuance. Death Pension based on a claim time limit under § 5.424(b), VA will (Authority: 38 U.S.C. 5112(a), (b)(6)) received no later than 1 year after the recognize the claimant seeking date of the veteran’s death, the effective recognition as a surviving spouse of a § 5.434 Award or discontinuance of award date of the award is the first day of the deemed valid marriage and award of Improved Death Pension to a surviving month in which the death occurred. Improved Death Pension if that claimant spouse where Improved Death Pension (2) Claim received more than 1 year meets eligibility and entitlement payments to a child are involved. after the date of the veteran’s death. If requirements. If the surviving spouse (a) Custodian of child establishes VA awards Improved Death Pension later claims Improved Death Pension eligibility as surviving spouse. When VA based on a claim received more than 1 and establishes entitlement, VA will finds Improved Death Pension eligibility year after the date of the veteran’s death, then process the claim under § 5.433. for the custodian of a child receiving Improved Death Pension, VA will award the effective date of the award is the (Authority: 38 U.S.C. 501(a)) date VA received the claim. Improved Death Pension to the (b) Death in service. The following § 5.433 Effective date of discontinuance of surviving spouse and discontinue the effective dates apply for Improved Death Improved Death Pension payments to a child’s eligibility for Improved Death Pension awards based upon a veteran’s beneficiary no longer recognized as the Pension as follows: death in service: veteran’s surviving spouse. (1) Annual Improved Pension amount (1) Claim received no later than 1 year (a) Purpose. This section applies for surviving spouse higher than amount after death. If VA receives a claim for when VA is paying Improved Death for child.—(i) Effective date. If the Improved Death Pension no later than 1 Pension to a surviving spouse surviving spouse is entitled to a higher year after the date of death fixed by the (identified in this section as ‘‘former Improved Pension payment amount veteran’s service branch’s report or surviving spouse’’) and another than the child was receiving, the finding of actual or presumed death, the claimant (identified in this section as surviving spouse’s pension award is effective date is the first day of the ‘‘new surviving spouse’’) establishes effective the date provided by § 5.431. month that the Secretary concerned that he or she is the true surviving (ii) Initial amount payable. The initial establishes as the date of death. spouse eligible to receive Improved pension amount payable to the (2) Claim received later than 1 year Death Pension. surviving spouse is the difference after death. If VA receives the claim (b) Effective date of discontinuance of between the child’s Improved Pension later than 1 year after the date of death payments to former surviving spouse— payment amount and the surviving provided in paragraph (b)(1) of this (1) Discontinuance date of the award to spouse’s Improved Pension payment section, the effective date is the date VA the former surviving spouse where the amount. VA will pay to the surviving receives the claim. award to the new surviving spouse is spouse the full Improved Pension

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payment amount effective the first day (ii) Award Improved Pension to child. (2) More than one surviving child in of the month after the month VA last VA will award Improved Pension at the the custody of a person legally paid benefits to the child. VA will reduced rate to the child effective the responsible for the child’s support. If discontinue the child’s pension award first day of the month after the month multiple surviving children have the effective that same day. VA last paid benefits to the surviving same custodian and any surviving child (2) Annual Improved Pension amount spouse, discontinuing the surviving has adjusted annual income equal to or for surviving spouse equal to or less spouse’s pension award effective that greater than the maximum annual than amount for child. When the child same day. Section 5.693 does not apply pension rate for one surviving child, is receiving an Improved Death Pension in such a situation. that surviving child (and the surviving payment amount equal to or higher than (2) The Improved Pension payment child’s income) is not included in the the Improved Death Pension payment amount for the child is equal to or calculation of the annual Improved amount that the surviving spouse is higher than the former surviving Pension amount. The remaining entitled to receive, VA will pay spouse’s amount. If the surviving surviving child’s annual Improved Improved Death Pension to the spouse receives Improved Pension after Pension amount is the lesser of: surviving spouse effective the first day his or her eligibility ends, and his or her (i) The maximum annual pension rate of the month after the month VA last custodial child is entitled to an equal or for a surviving spouse and the number paid benefits to the child, and increased pension payment then VA of remaining surviving children, discontinue the child’s pension award will take the following actions: reduced by the total adjusted annual effective that same day. Section 5.693 (i) Partial payment to the child. VA income of the remaining surviving does not apply in such a situation. will pay the child the difference children and that of the custodian; or (3) Discontinuance of child’s pension between the child’s pension payment (ii) The maximum annual pension award when the surviving spouse is not amount and the surviving spouse’s rate for a surviving child alone times the entitled to payments. When a surviving pension payment amount. The effective number of remaining surviving spouse establishes eligibility for date of the child’s benefits is the date children, reduced by the total adjusted Improved Death Pension but is not VA should have discontinued the annual income of the remaining entitled because his or her adjusted surviving spouse’s pension benefits. surviving children. (ii) Full payment to the child. VA will annual income is greater than the (3) Income of natural or adoptive grant Improved Pension at the equal or maximum annual pension rate or parent includes that of natural or increased rate to the child effective the because his or her net worth bars adoptive parent’s spouse. If the first day of the month after the month entitlement, VA will discontinue the custodian listed in paragraph (b)(1) or VA last paid benefits to the surviving child’s pension award effective the first (2) of this section is a natural or spouse, discontinuing the surviving day of the month after the month VA adoptive parent of a surviving child spouse’s pension award effective that last paid benefits to the child. who is in joint custody as provided in same day. (b) Child establishes eligibility but § 5.417(b), the income of that natural or surviving spouse has received Improved (Authority: 38 U.S.C. 501(a), 5110(a), 5112(a)) adoptive parent includes the income of Death Pension payments after his or her Cross Reference: § 5.1, for the that natural or adoptive parent’s spouse. eligibility ended. If a surviving spouse definition of ‘‘custody of a child’’. continued to receive Improved Pension (Authority: 38 U.S.C. 1542) payments after becoming ineligible for § 5.435 Calculating annual Improved Cross Reference: § 5.1, for the Improved Pension, and that surviving Pension amounts for a surviving child. definition of ‘‘custody of a child’’. spouse has custody of a child who (a) Surviving child not in custody or §§ 5.436–5.459 [Reserved] establishes eligibility for Improved in the custody of an institution. If a Pension payments, VA will award surviving child has no custodian, or a Choosing Improved Pension Over Other Improved Pension to the child and surviving child is in the custody of an VA Pension Programs discontinue the surviving spouse’s institution, VA calculates the surviving eligibility as follows: child’s annual Improved Pension § 5.460 Definitions of certain VA pension programs. (1) Improved Pension payment amount by subtracting the surviving amount for the child is lower than the child’s adjusted annual income from the (a) Section 306 Pension means the payment amount for the former surviving child’s maximum annual nonservice-connected disability and surviving spouse. If the surviving spouse pension rate. death pension programs available to a receives Improved Pension after his or (b) Surviving child in the custody of new claimant during the period her eligibility ends, and his or her a person legally responsible for the beginning on July 1, 1960, and ending custodial child is entitled to a reduced child’s support—(1) One surviving child on December 31, 1978. Improved Pension payment, then VA in the custody of a person legally (b) Old-Law Pension means the will take the following actions: responsible for the child’s support. If the nonservice-connected disability and (i) Amend the award to surviving surviving child has a custodian, the death pension programs available to a spouse. VA will amend the award to the surviving child’s annual Improved new claimant before July 1, 1960. surviving spouse for the period before Pension amount is the lesser of: (Authority: 38 U.S.C. 501(a)) the award to the child is effective by (i) The maximum annual pension rate reducing the Improved Pension for a surviving spouse and one §§ 5.461–5.462 [Reserved] payment amount to the amount that dependent surviving child, reduced by would have been paid to the child, the adjusted annual income of the § 5.463 Effective dates of Improved Pension elections. establishing a debt owed by the surviving child and that of the surviving surviving spouse to VA. The surviving child’s custodian; or An election to receive Improved spouse’s reduced payment is effective (ii) The maximum annual pension Pension is effective on the date VA the date the Improved Pension payment rate for a surviving child alone, reduced receives the election. to the spouse should have been by the surviving child’s adjusted annual (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. discontinued. income. 2508)

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§ 5.464 Multiple pension benefits not § 5.471 Annual income limits and rates for (A) Civil Service Retirement and payable. Old-Law Pension and Section 306 Pension. Disability Fund; If a veteran is entitled to Improved (a) Where to find the annual income (B) Railroad Retirement Board; Pension on the basis of his or her limits and pension rates. When annual (C) District of Columbia for firemen, service and is also entitled to pension income limits are adjusted as provided policemen, or public school teachers; under any other VA pension program in paragraph (b) of this section, VA will and based on another person’s service, VA publish the new limits in the ‘‘Notices’’ (D) Former U.S. Lighthouse Service. will pay only the greater benefit. section of the Federal Register. Current (3) Countable income is rounded down. VA rounds countable income (Authority: 38 U.S.C. 1521(i)) and historical annual income limits and historical pension rates for Old-Law down to the nearest whole dollar. For §§ 5.465–5.469 [Reserved] Pension and Section 306 Pension can be Section 306 Pension, VA rounds down found on the internet at http:// after subtracting any authorized Continuing Entitlement to Old-Law www.va.gov, and are available from any deductible expenses specified in Pension or Section 306 Pension Veterans Service Center or Pension § 5.474. (4) Income considered for year of § 5.470 Reasons for discontinuing or Management Center. reducing Old-Law Pension or Section 306 (b) When annual income limits are receipt. VA calculates income for the Pension. adjusted. Whenever there is a cost-of- calendar year in which it is received and considers income for the calendar (a) Discontinuances. Old-Law Pension living increase in Social Security benefit year. However, when VA discontinues or Section 306 Pension will be amounts under the Federal Old-Age, Old-Law Pension or Section 306 discontinued for any one of the Survivors, and Disability Insurance Pension benefits based on income that following reasons: Benefits section of the Social Security exceeds the limit, it does so effective (1) A veteran pension beneficiary Act (42 U.S.C. 415(i)), VA will increase January 1 of the following calendar year ceases to be permanently and totally the following incomes by the same as provided in § 5.477. disabled; percentage effective the same date: (1) The annual income limits (c) Deductions from specific income (2) A surviving spouse pension sources—(1) Expenses of a business or beneficiary no longer meets the applicable to continued receipt of Old- Law Pension and Section 306 Pension; profession. Necessary business definition of ‘‘surviving spouse’’, as operating expenses such as the cost of provided in § 5.200; and (2) The dollar amount of the spousal goods sold and payments for rent, taxes, (3) A child pension beneficiary no upkeep, repairs, and replacements are longer meets the definition of ‘‘child’’, income not counted under § 5.473(b)(2)(ii)(A) in determining the deductible from income from a business as provided in § 5.220; or profession. Depreciation is not a (4) A pension beneficiary’s income income of a veteran for Section 306 Pension purposes. deductible expense. Losses sustained in exceeds the annual income limit; or operating a business or profession may (5) A Section 306 Pension beneficiary (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. not be deducted from income that is 2508) has a net worth of such value that it is derived from any other source. For reasonable that some part of it be § 5.472 Rating of income for Old-Law purposes of this section, ‘‘business’’ consumed for the beneficiary’s Pension and Section 306 Pension. includes the operation of a farm and maintenance. Rating of net worth will (a) Scope. This section provides rules transactions involving investment be made under § 5.476. for determining how to count income property. (b) Finality of discontinuance. for Old-Law Pension and Section 306 (2) Expenses associated with Discontinuance of Old-Law Pension or Pension purposes. This section also disability, accident, or health insurance Section 306 Pension for one of the applies to counting spousal income as recoveries. VA will deduct from sums reasons listed in paragraph (a) of this part of the veteran’s income for Section recovered under disability, accident, or section means that a pension beneficiary 306 Pension purposes. health insurance medical, legal, or other is no longer entitled to receive Old-Law (b) Countable income—(1) All expenses incident to the insured injury Pension or Section 306 Pension benefits. payments counted as income. VA or illness. However, VA will not then Any new entitlement that may be counts all payments of any kind from deduct the same medical expenses as established would be to Improved any source in determining the income of unusual medical expenses under Pension. a pension beneficiary, except certain § 5.474. (c) Reduction and finality of payments that are not counted as (3) Salary deductions and employer reduction. If a beneficiary of Old-Law income as provided in this section or contributions. Income from a salary is Pension or Section 306 Pension loses a under § 5.473. not determined by ‘‘take-home’’ pay. dependent for whom the beneficiary (2) Payments. For purposes of this Generally, the salary counted as income was receiving additional pension before section, ‘‘payments’’ are cash and cash is the gross salary before any January 1, 1979, VA must reduce the equivalents (such as checks and other deductions. However, an employer’s beneficiary’s pension by the additional negotiable instruments), and the fair contributions to health and amount payable based on that market value of personal services, hospitalization plans will not be dependent. Such reductions are final goods, or room and board received in counted as part of gross salary. and rates do not increase. VA must lieu of other forms of payment. (d) Income-producing property and discontinue pension as provided in (i) Section 306 Pension. For Section income from property sales—(1) Scope. paragraph (a)(4) of this section if a 306 Pension purposes, VA counts as This paragraph (d) provides rules for veteran or surviving spouse no longer income retirement benefits (pension or determining whether income from has any dependents and his or her retirement payments). income-producing property and annual income exceeds the annual (ii) Old-Law Pension. For Old-Law property sales will be counted as a income limit for a veteran or surviving Pension purposes, retirement benefits pension beneficiary’s income. The spouse alone. from the following sources are not provisions of this paragraph (d) apply to (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. counted as income if the benefits have all property, real or personal, in which 2508) been waived pursuant to Federal statute: a pension beneficiary has an interest,

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whether acquired through purchase, (iii) Reporting requirement. To qualify Defense under the authority of Public bequest, or inheritance. for this rule, the application of the net Law 100–456, Sec. 653, 102 Stat. 1991, (2) Proof of ownership. In determining profit from the sale of the old residence to qualified surviving spouses of whether to count income from real or to the purchase of the replacement veterans who died before November 1, personal property or property sales, VA residence must be reported to VA no 1953. will consider the terms of the recorded later than 1 year after the date it was so (3) Death gratuity. Death gratuity deed or other evidence of title. In the applied. payments under 10 U.S.C. 1475 through absence of evidence showing otherwise, (7) Profit from sale of non-business 1480. VA will accept the beneficiary’s property for Section 306 Pension. Profit (4) State service bonuses. Payments of statement as proof of the terms of realized from the disposition of real or a bonus or similar cash gratuity by any ownership. personal property other than in the State based upon service in the Armed (3) Transfer of ownership with course of a business does not count as Forces. retention of income. If a pension income for Section 306 Pension. (5) Payment for civic obligations. beneficiary transfers ownership of However, amounts received in excess of Payments received for performance of property to another person or legal the sales price, such as interest jury duty or other obligatory civic entity, but retains the right to income, payments, do count. If payments are duties. the income will be counted. received in installments, the (6) Fire loss reimbursement. Proceeds (4) Income from jointly-owned installments received will not begin to from fire insurance. property. If a pension beneficiary owns count as income until the total of (7) Certain life insurance payments. property jointly with others, including, installments received is equal to the Payments under policies of but not limited to, partnership property, sales price. The following exceptions Servicemembers’ Group Life Insurance, each person will be considered as apply: U.S. Government Life Insurance, receiving an equal share of the income (i) Bonds. If the redemption of a bond Veterans’ Group Life Insurance, or from that property in the absence of issued by a federal, state, municipal or National Service Life Insurance. evidence showing otherwise. other political entity is required for the (8) Rental value of beneficiary’s (5) Property sales for Old-Law payment of accrued interest, then the property. The rental value of a Pension. (i) General rule. Net profit from accrued interest payable is excluded beneficiary’s use of his or her real the sale of real or personal property from income. property, such as the rental value of the counts as income unless the profit is (ii) Life insurance. If the surrender of beneficiary’s personal residence. (9) Increased inventory value of a from the sale of the beneficiary’s a life insurance policy is required to business. The value of an increase of principal residence. obtain the proceeds, then the interest received is excluded from income. stock inventory of a business. (ii) Property owned before date of (10) Commercial insurance dividends. entitlement. In determining net profit (e) VA benefits—(1) Old-Law Pension. No VA benefits are not counted as Dividends from commercial insurance. from the sale of property owned before (11) Employer contributions for a the date of entitlement, VA will income for Old-Law Pension. (2) Section 306 Pension. Only the retired employee. Contributions a public compare the value of the property at the following VA benefits count as income or private employer makes to either of time entitlement began with the selling for Section 306 Pension: the following programs: price. (i) Subsistence allowance under 38 (i) Public or private health or (iii) Payments received in U.S.C. 3100 through 3121; hospitalization plan for a retired installments. If payments are received in (ii) Special allowance under 38 U.S.C. employee; or installments, the entire amount of 1312(a); (ii) Retired employee as installment payments received (iii) Accrued benefits, unless paid as reimbursement for premiums for (including, but not limited to, principal a reimbursement; and supplementary medical insurance and interest) will not be counted as (iv) World War I adjusted disability benefits under the Social Security income until the total of installments compensation. program. received is equal to the cost of the (f) Income not counted for Old-Law (12) Income from retirement plans residence, or if paragraph (d)(5)(ii) of Pension or Section 306 Pension. VA will and similar plans and programs. 10 this section applies, equal to the value not count payments from the sources percent of the amount of payments of the property on the date pension listed in this paragraph (f) when under public or private retirement, entitlement was established. The entire calculating income for Old-Law Pension annuity, endowment, or similar plans is amount of any installment received or Section 306 Pension. Paragraph (g) of not counted as income. This rule thereafter will be counted as income. this section lists additional sources of includes, but is not limited to, payments (6) Profit from sale of principal income that are not counted for Section received from any of the following residence for Old-Law Pension.—(i) 306 Pension. sources: General rule. Net profit realized from (1) Maintenance. The value of (i) Annuities or endowments paid the sale of an Old-Law Pension maintenance furnished by a relative, under a Federal, State, municipal, or beneficiary’s principal residence is not friend, or a civic or governmental private business or industrial plan. counted to the extent that it is applied charitable organization, in addition to (ii) Old age and survivor’s insurance to the purchase price of a subsequent money paid to an institution for the care and disability insurance under title II of principal residence for the beneficiary of the beneficiary due to impaired the Social Security Act. in either the calendar year of the sale or health or advanced age. However, if the (iii) Retirement benefits received from the following year. maintenance is paid to the beneficiary the Railroad Retirement Board. (ii) Exception. This rule does not and not counted as income under this However, if the beneficiary is a veteran apply where the net profit is applied to provision, VA cannot also deduct it as receiving Old-Law Pension, payments the price of a residence purchased an unusual medical expense under from this source do not count at all. before the calendar year preceding the § 5.474. (iv) Payments for permanent and total calendar year of the sale of the old (2) Survivor benefit annuity. disability or death received from the residence. Annuities paid by the Department of Office of Workers’ Compensation

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Programs of the U.S. Department of not count the separate income of a (2) Section 306 Pension. Earned Labor, the Social Security veteran’s child in computing income for income of a child beneficiary is not Administration, or the Railroad a veteran Section 306 Pension counted as income for Section 306 Retirement Board, or pursuant to any beneficiary. Pension. worker’s compensation or employer’s (2) Spousal income—(i) VA (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. liability statute, including, but not presumptions concerning spousal 2508) limited to, damages collected incident income. For Section 306 Pension to a tort suit under an employer’s purposes, if a veteran and his or her Cross Reference: § 5.1, for the liability law of the U.S. or a political spouse live together, VA presumes: definition of ‘‘custody of a child’’. subdivision of the U.S. This 10 percent (A) That the spouse’s income is § 5.474 Deductible expenses for Section income reduction is applied after any available to the veteran. The veteran 306 Pension only. adjustments are made under paragraph may rebut this presumption by filing (a) Scope. This section applies to (c)(2) of this section. evidence showing that all or part of the Section 306 Pension only. Because (v) The proceeds of commercial spouse’s income is not available. Section 306 Pension rates cannot annuity, endowment, or life insurance. (B) That counting the spouse’s income increase, deductible expenses paid after (vi) The proceeds of disability, would not cause the veteran hardship. December 31, 1978, can only be accident, or health insurance. This 10 The veteran may rebut this presumption deducted from a pension beneficiary’s percent income reduction applies after by filing evidence showing that there income so that the beneficiary’s income the income from the specified payments are expenses beyond the usual family remains within the annual income limit is reduced by the deductions described requirements. Examples of such and the beneficiary maintains in paragraph (c)(2) of this section. expenses include special training for a entitlement to Section 306 Pension. (13) Other payments. Other payments handicapped child and expenses for the (b) Unusual medical expenses—(1) listed in § 5.706. prolonged illness of a family member. Definitions—(i) Family member. For (g) Income not counted for Section However, if the spouse’s income is not Section 306 Pension purposes, a ‘‘family 306 Pension. In addition to the counted because it is needed to pay for member’’ is a relative of the beneficiary payments listed in paragraph (f) of this unusual medical expenses, the same who is a member of the beneficiary’s section, VA will not count payments medical expenses cannot be deducted as household whom the beneficiary has a from the following sources as income unusual medical expenses under moral or legal obligation to support. for Section 306 Pension: § 5.474(b). (1) Donations received. Donations (ii) Spousal income that is not This includes a relative who is from public or private relief or welfare counted. Unless the spouse’s income is physically absent from the household organizations, in addition to benefits not counted under paragraph (b)(2)(i)(A) for a temporary purpose or for reasons received under noncontributory of this section, the spouse’s income will beyond his or her control. programs such as Supplemental be counted as part of the veteran’s (ii) Unusual medical expenses. For Security Income payments. income for Section 306 Pension purposes of this section, unusual (2) Social Security death payments. purposes. However, VA will not count medical expenses means unreimbursed Lump sum death payments under title as income to the veteran the greater of medical expenses above 5 percent of II of the Social Security Act. the following two amounts: annual income. For the definition of (3) Money acquired from joint (A) The amount of spousal income not medical expenses that VA will deduct, accounts because of death. Money that counted under Public Law 95–588, see § 5.707. a death pension beneficiary acquires section 306(a)(2)(B) (as increased by (2) Veteran or surviving spouse because of the death of a co-owner of a amounts published in the ‘‘Notices’’ benefits. VA will deduct amounts paid joint account in a bank or similar section of the Federal Register); or by a veteran or surviving spouse for the financial institution. (B) All of the spouse’s earned income. veteran’s or surviving spouse’s unusual (h) Donations are income for Old-Law (c) Old-Law Pension or Section 306 medical expenses and those of family Pension. If an Old-Law Pension Pension for a veteran—(1) Veteran’s members. beneficiary receives additional child not in surviving spouse’s custody. (3) Child benefits. VA will deduct donations from public or private relief For Old-Law Pension or Section 306 amounts paid by a child pension organizations for members of his or her Pension purposes, if a deceased veteran beneficiary for his or her unusual family, these additional allowances may is survived by a spouse and a child, the medical expenses and those of the not be divided per member of the family annual income limits for a surviving child’s parents, brothers, and sisters. in determining the pension beneficiary’s spouse and child apply even if the child (4) When expenses are deducted. VA income. The entire payment is counted is not the surviving spouse’s child and will deduct unusual medical expenses as income. not in the surviving spouse’s custody. from income for the calendar year in (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. (2) When a child’s separate income is which they were paid regardless of 2508) not counted. (i) VA will not count a when the expenses were incurred. (5) Proof of expenses. VA will accept Cross Reference: § 5.1, for the child’s separate income as part of the the pension beneficiary’s statement as definitions of ‘‘political subdivision of surviving spouse’s income if it is paid proof of the amount and nature of such the U.S.’’ and ‘‘State’’. to the child, regardless of who has custody of the child. medical expenses, the date of payment, § 5.473 Counting a dependent’s income for (ii) If the child’s income is paid or and the identity of the creditor, unless Old-Law Pension and Section 306 Pension. given to the surviving spouse, VA will the circumstances create doubt as to the (a) Old-Law Pension for veterans. VA only count as much of the child’s statement’s credibility. will not count the separate income of a income as remains after deducting the (6) Estimates of expenses for future veteran’s spouse or child in computing child’s living expenses. benefit periods. VA will project income for a veteran Old-Law Pension (d) Child benefits—(1) Old-Law anticipated medical expenses based on beneficiary. Pension. Earned income of a child a clear and reasonable expectation that (b) Section 306 Pension for a beneficiary counts as income for Old- they will continue. See § 5.709 veteran—(1) Child’s income. VA will Law Pension. (concerning the beneficiary’s

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responsibility to inform VA concerning Section 306 Pension. If an Old-Law the veteran and spouse live together or income changes). Pension or Section 306 Pension if not living together, are not estranged. (c) Final expenses—(1) Definition. beneficiary gains a dependent, VA will If they are estranged, the married rates ‘‘Final expenses’’ are amounts paid for determine if a higher annual income and the annual income limit for a the expenses of a deceased person’s last limit applies. A higher limit applies if veteran with a spouse apply if the illness and burial. The same expense the beneficiary previously did not have veteran is reasonably contributing to the cannot be deducted as both a final a dependent. spouse’s support. VA counts spousal expense and an unusual medical (2) Veteran receiving Section 306 income only if the annual income limit expense under paragraph (b) of this Pension gains a spouse who has income. for a veteran with a spouse applies. VA section. If a veteran beneficiary of Section 306 bases its determination of ‘‘reasonable’’ (2) Final expenses paid by the Pension gains a spouse who has contribution on all of the circumstances veteran. VA will deduct from a veteran’s countable income, VA will recalculate of the case, including, but not limited income the final expenses the veteran the veteran’s income for the year in to, a consideration of the veteran’s pays for his or her spouse or child. which the person became the veteran’s income and net worth and the spouse’s (3) Final expenses paid by a surviving spouse. VA will then determine if the separate income and net worth. VA spouse. VA will deduct from a surviving veteran is entitled to continued pension automatically considers the requirement spouse’s income the final expenses the benefits or whether the recalculated of ‘‘reasonable’’ contribution met surviving spouse pays for the veteran’s income exceeds the annual income without further review if the spouse is child. limit. VA makes the determination receiving an apportionment under (4) Proof of expenses. VA will accept based on calendar year income. § 5.780. as proof of expenses deductible under However, VA will not count income that paragraph (c) of this section the pension the spouse received or deduct any of the (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. 2508) beneficiary’s statement as to the amount spouse’s expenses paid before the date and nature of each expense, the date of the person became the veteran’s spouse § 5.476 Net worth for Section 306 Pension payment, and identity of the creditor for VA purposes. only. unless the circumstances create doubt as (b) Pension beneficiary loses (a) Definition. For purposes of to the credibility of the statement. dependent—(1) Loss of last dependent. determining continuing entitlement to (5) When expenses are deducted. When an Old-Law Pension or Section Section 306 Pension, net worth means Expenses deductible under paragraph 306 Pension beneficiary loses his or her the market value, minus mortgages or (c) of this section are deductible for the last dependent, his or her annual other encumbrances, of all real and year in which they were paid. However, income limit is lowered. When this personal property the beneficiary owns. occurs, VA must determine if the if such expenses were paid during the VA excludes the beneficiary’s residence beneficiary is still entitled to such year following the year the spouse, (single-family unit), which also includes pension based on the lowered income surviving spouse, or child died, the a reasonably sized lot, and personal limit and recalculated income for the expenses may be deducted for the year effects suitable to and consistent with calendar year that the dependent was the expenses were paid or the year of the beneficiary’s reasonable mode of death, whichever is to the beneficiary’s lost. (2) Computation of new rate if a life. VA will evaluate a ‘‘reasonably advantage. sized lot’’ by considering the typical (d) Prepayment on real property dependent established before January 1, size of lots in the area. If the person mortgage after death of spouse—(1) 1979. If a beneficiary of Old-Law lives on a farm, VA will not count the Section 306 Pension: veteran Pension or Section 306 Pension loses a value of a reasonably sized lot, beneficiaries only. If a veteran who is dependent based upon whom the including the residence area, and receiving Section 306 Pension makes a beneficiary was receiving additional consider the rest of the farm as part of pre-payment on a mortgage or similar pension before January 1, 1979, VA net worth. type security instrument on real must reduce the beneficiary’s pension property after the death of his or her by the additional amount payable based (b) General rule. VA only considers spouse, VA will deduct the amount of on that dependent. Because Old-Law the net worth of the veteran, surviving the pre-payment from the veteran’s Pension and Section 306 Pension rates spouse, or child beneficiary. In income. The real property must have are based on income from the year 1978 determining whether property belongs been the principal residence of the and number of dependents, VA to a pension beneficiary, VA will veteran and spouse, and the mortgage or calculates the new rate by removing the consider the terms of the recorded deed security instrument must have existed dependent and the dependent’s 1978 or other evidence of title. In the absence when the veteran’s spouse died. income, if any, and using the remaining of contradictory evidence, VA will (2) Time limit of pre-payment. The 1978 income to determine the new rate. accept the beneficiary’s statement as pre-payment described in paragraph (i) If the recalculated rate is higher proof of the terms of ownership. In the (d)(1) of this section must be made after than the previous rate, VA will continue absence of contradictory evidence, VA the spouse’s death but before the end of the previous rate. will accept the beneficiary’s estimate of the year following the year of death. VA (ii) If the rate payable to a surviving the value of property. will deduct the amount of the pre- spouse with one child is less than the (c) How VA evaluates net worth. In payment from the veteran’s income for rate payable for a child alone, the determining whether some part of a the year of death or the year after death, surviving spouse will be paid the child’s beneficiary’s net worth should be used whichever is to the veteran’s advantage. rate unless paragraph (b)(2)(i) of this for his or her maintenance, VA section applies. considers the beneficiary’s income as (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. 2508) (c) Section 306 Pension and determined under § 5.472, along with all dependency of spouse. For Section 306 of the beneficiary’s living expenses. In § 5.475 Gaining or losing a dependent for Pension purposes, the December 31, considering the beneficiary’s living Old-Law Pension and Section 306 Pension. 1978, rates for a veteran with a spouse expenses, VA cannot consider expenses (a) Pension beneficiary gains a and the annual income limit for a that were deducted in determining dependent—(1) Old-Law Pension or veteran with a spouse apply as long as income. However, VA will also consider

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the following factors in evaluating net benefits as described in paragraph (a) of be proven by the next type of obtainable worth: this section because of the beneficiary’s evidence listed. (1) The value of liquid assets; expected income for a calendar year, the (1) A copy of the public record of the (2) The ability of the beneficiary to beneficiary can establish continuing State or community where death dispose of property if limited by entitlement by filing evidence showing occurred. community property laws; that income for the calendar year was (2) A copy of a coroner’s report of (3) The number of family members (as below the annual income limit. The death, or of a verdict of a coroner’s jury, described in § 5.474(b)(1)(i)) who beneficiary must file the evidence before from the State or community where depend on the beneficiary for support; the end of the calendar year that follows death occurred, provided the report or and the year for which VA determined the verdict properly identifies the deceased. (4) The beneficiary’s average life income exceeded the limit. For (c) Deaths occurring outside the U.S. expectancy, and the potential rate of example, if VA determines that a VA will require as proof of death depletion of the beneficiary’s net worth. beneficiary’s income for the year 2005 occurring outside the U.S. the first type (d) Amounts not countable as net exceeds the income limit and of evidence listed in this paragraph (c), worth as a matter of law. Resources not discontinues pension benefits effective if obtainable. If this type of evidence is countable by statute will not be January 1, 2006, the beneficiary has to unobtainable, then the death may still considered part of the beneficiary’s net submit evidence, such as deductible be proven by the next type of obtainable worth. For the list of such resources, see medical expenses or other information, evidence listed. § 5.706. before January 1, 2007, showing that (1) A U.S. consular report of death (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. 2005 income was within the 2005 bearing the signature and seal of the 2508) income limit. U.S. consul. (2) A copy of the public record of § 5.477 Effective dates of reductions and (c) Finality of discontinuance. If a discontinuances of Old-Law Pension and beneficiary does not file income death authenticated by the U.S. consul Section 306 Pension. evidence as described in paragraph (b) or other agency of the State Department or which is exempt from such (a) Reductions and discontinuances of this section or if such evidence does authentication as provided in based on certain events. If required, VA not warrant continued benefits, the will pay a reduced Old-Law Pension or discontinuance described in paragraph § 5.132(c)(5) (concerning certain copies Section 306 Pension rate or discontinue (a) of this section is final. This means of public or church records). (3) An official report of death of a benefits effective January 1 of the that the beneficiary is no longer entitled civilian employee of the U.S. calendar year immediately following to receive Old-Law Pension or Section Government from the employing U.S. any of these events: 306 Pension benefits. Any new Government entity. (1) Marriage, annulment, divorce, or entitlement that may be established (d) Deaths at institutions under the death. A beneficiary loses a dependent would be to Improved Pension. control of the U.S. Government. VA will due to marriage, annulment, divorce, or (Authority: 38 U.S.C. 5110(h)) death. only accept as proof of death occurring (2) Increased income. The beneficiary §§ 5.479–5.499 [Reserved] in a hospital or other institution under receives increased income that could the control of the U.S. Government the not reasonably have been anticipated Subpart G—Dependency and first type of evidence listed in this based on the amount actually received Indemnity Compensation, Accrued paragraph (d). If this type of evidence is from that source the previous year. Benefits, and Special Rules Applicable unobtainable, then the death may still (3) Increased net worth. The Upon Death of a Beneficiary be proven by the next type of obtainable beneficiary’s net worth increases to the evidence listed. extent benefits must be discontinued General Provisions (1) A death certificate signed by a medical officer. (Section 306 Pension only). § 5.500 Proof of death. (b) General effective dates apply for (2) A clinical summary, or other (a) Purpose and application. (1) This other reasons. VA will use the report, signed by a medical officer section describes evidence VA will appropriate effective dates as specified showing the fact and date of death. accept to prove that a person has died in § 5.705 for a discontinuance or (e) Deaths of members of the in cases where the death of the person reduction for any reason other than uniformed services. The death of a is relevant to eligibility for a benefit. It those stated in paragraph (a) of this member of the uniformed services may covers the most common situations. section or in § 5.478(a). be established by an official report of Sections 5.501 and 5.502 apply where the death from the uniformed service (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. the evidence described in this section is concerned. 2508) not available. (Authority: 38 U.S.C. 501(a)(1)) § 5.478 Time limit to establish continuing (2) Where more than one paragraph of entitlement to Old-Law Pension or Section this section applies, VA will accept the § 5.501 Proving death by other means. 306 Pension. evidence described in any relevant (a) Applicability. This section and (a) Expected income appears to paragraph as proof of death. For § 5.502 describe methods of proving that exceed income limit. If it appears that an example, if the person died in a U.S. a person has died if the death of that Old-Law Pension or Section 306 Government hospital located within a person is relevant to eligibility for a Pension beneficiary’s income for a State, VA would accept the evidence benefit and the evidence described in calendar year will be higher than the establishing death specified in either § 5.500. annual income limit for that calendar paragraph (b) or (d) of this section. (b) Required statement. A claimant year, VA will discontinue pension (b) Deaths occurring within a State. seeking to establish the fact of death benefits for that calendar year effective VA will require as proof of death under this section must file a statement January 1 of the following year, subject occurring within a State the first type of explaining why none of the evidence to paragraph (b) of this section. evidence listed in this paragraph (b), if described in § 5.500 is available. (b) Time limit for continuing obtainable. If this type of evidence is (c) Affidavits or certified statements of entitlement. If VA discontinues pension unobtainable, then the death may still witnesses who viewed the body. The fact

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of death may be established by the § 5.500 or § 5.501, must produce (b) Definition of service-connected affidavit or certified statement of one or competent, credible evidence to show disability.—(1) General. For purposes of more persons who have personal that: this section, service-connected disability knowledge of the fact of death, have (1) The person has been continuously means: viewed the body of the deceased, and absent from home and family for at least (i) Except as provided in paragraph know it to be the body of the person 7 years without explanation; and (b)(2) of this section, a disability that whose death is being alleged. These (2) A diligent search disclosed no was service connected at the time of the affidavits or statements should describe evidence of the person’s continued veteran’s death, or all the facts and circumstances known existence after the absence. (ii) A disability that is service concerning the death, including the (b) Finding of death conclusive. A connectable under the provisions of place, date, time, and cause of death. finding of death under this section will subpart E of this part, Claims for service (d) Other methods of establishing be conclusive and final for purposes of connection and disability death. If the claimant cannot furnish the laws administered by VA except where compensation. For purposes of this affidavits or certified statements suit is filed for insurance under 38 section, VA will presume that a death described in paragraph (c) of this U.S.C. 1984, Suits on insurance. that occurred in line of duty was section, the fact of death may be (c) Impact of findings of death made preceded by disability. established by one of the following: by other entities. (1) State laws that (2) Exception. For purposes of this (1) U.S. Government agency finding. provide for presumption of death are section, ‘‘service-connected disability’’ In the absence of evidence to the not applicable to claims for benefits and does not include a disability that was contrary, VA will accept a finding of the may not be used to establish death service connected at the time of the fact of death by another U.S. under this section. veteran’s death if the law in effect at the Government agency. (2) A finding of death by another time of a survivor’s claim precludes VA (2) Body not recovered or not Federal agency meeting the criteria from establishing service connection for identifiable. If circumstances preclude described in paragraphs (a)(1) and (2) of the cause of the veteran’s death. See recovery or identification of the body of this section is acceptable for VA §§ 5.365 and 5.662(a) and (c)(2). (c) Determining whether a veteran’s the deceased, the fact of death may be purposes if there is no credible evidence death is service connected. A veteran’s established by the claimant’s affidavit or to the contrary. certified statement setting forth the death is service connected if death circumstances under which the missing (Authority: 38 U.S.C. 108, 501(a)(1)) resulted from a service-connected disability. Death resulted from a service- person was last seen, the known facts § 5.503 Establishing the date of death. which led the claimant to believe that connected disability if the service- (a) Applicability. This section applies death has occurred, and one of the connected disability produced death or when the fact of death is established following, as applicable: hastened death, as provided in the (i) The affidavits or certified under §§ 5.500 through 5.502, but the following paragraphs: statements of persons who witnessed exact date of death is uncertain. (1) Service-connected disability the event in which the missing person (b) Date of death in cases involving a produces death. A service-connected is alleged to have perished, describing continuous, unexplained absence of disability is the cause of death if a single the event and, if applicable, why they seven years or more. When the fact of service-connected disability, or the believe the missing person perished in death is established under § 5.502, the combined effect of multiple service- the event, or date of death for purposes of the laws connected disabilities, is such that (ii) If the testimony of eyewitnesses is administered by VA is 7 years after the death would not have occurred in the not obtainable, the affidavits or certified date the person was last known to be absence of the disability, or disabilities. statements of persons who have the alive. If two or more disabilities were present most reliable information available (c) Date of death in other cases. If the at the time of death, only one of which concerning why the missing person is fact of death is established by the was service connected or service believed to have been at the event in evidence described in § 5.500 or § 5.501, connectable, and each disability by which the missing person is alleged to VA will determine the date of death for itself was sufficient to bring about have perished, why the missing person purposes of the laws administered by death, VA will grant service connection was in imminent peril at the time the VA by considering all of the known for the cause of the veteran’s death. event occurred, and the basis on which facts and circumstances surrounding the (2) Contributory cause of death. (i) they concluded that death was caused death, including, but not limited to, the Contributory cause of death is by the event. condition of the body when found and inherently one not related to the (3) Finding of fact of death by any estimate of the date of death principal cause. In determining whether authorized VA official. An authorized provided by a coroner or other official the service-connected disability VA official may make a finding of the within the scope of that official’s duties. contributed to death, it must be shown fact of death where death is shown by If no identifiable body is found, the date that it contributed substantially or competent evidence. See § 5.5 of death will be presumed to be the date materially; that it combined to cause (concerning delegation of authority to the deceased was last known to be alive death; that it aided or lent assistance to make findings and decisions concerning in the absence of evidence to the produce death. It is not sufficient to entitlement to benefits). contrary. show that it casually shared in (Authority: 38 U.S.C. 501(a)(1)) (Authority: 38 U.S.C. 108, 501(a)) producing death, but rather it must be shown that there was a causal § 5.502 Proving death after 7 years of § 5.504 Service-connected cause of death. connection. continuous, unexplained absence. (a) Purpose. Eligibility for several (ii) Generally, minor service- (a) Evidence required. A claimant benefits for a veteran’s survivors connected disabilities, particularly seeking to establish the death of a requires that the veteran’s death be those of a static nature or not materially person who has been absent for 7 years, service connected. This section provides affecting a vital organ, would not be where death is not established with the rules VA uses to determine whether held to have contributed to death documentary evidence described in a veteran’s death is service connected. primarily due to unrelated disability. In

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the same category there would be (ii) DIC is not payable unless the compensation (DIC) is entitled to special included service-connected disease or service-connected death occurred after monthly DIC benefits if he or she needs injuries of any evaluation (even though December 31, 1956, except in the case regular aid and attendance. VA will evaluated as 100 percent disabling) but of certain persons receiving or eligible make determinations of the need for aid of a quiescent or static nature involving to receive death compensation who and attendance under the criteria in muscular or skeletal functions and not elect to receive DIC in lieu of death § 5.320. materially affecting other vital body compensation. See §§ 5.742 and 5.759. (b) Automatic entitlement. VA will functions. (2) Veterans with a service-connected automatically consider a person to need (iii) Service-connected diseases or disability rated as totally disabling at regular aid and attendance, without injuries involving active processes the time of death—38 U.S.C. 1318. VA having to demonstrate the disability affecting vital organs should receive will grant DIC to the survivor of a described in paragraph (a) of this careful consideration as a contributory veteran rated totally disabled due to section, if the person: cause of death, the primary cause being service-connected disability for a (1) Is blind or so nearly blind as to unrelated, from the viewpoint of specified period of time at the time of have corrected visual acuity of 5/200 or whether there were resulting death, in the same manner as if the less in both eyes; debilitating effects and general veteran’s death was service connected. (2) Has concentric contraction of the impairment of health to an extent that See 38 U.S.C. 1318, Benefits for visual field in both eyes to 5 degrees or would render the person materially less survivors of certain veterans rated less; or capable of resisting the effects of other totally disabled at time of death, and (3) Is a patient in a nursing home disease or injury primarily causing §§ 5.521 and 5.522. because of mental or physical death. Where the service-connected (3) Veterans whose death was due to incapacity. condition affects vital organs as certain VA-furnished medical, training, (c) Entitlement based on permanent distinguished from muscular or skeletal compensated work therapy, or housebound status—surviving spouse. A functions and is evaluated as 100 rehabilitation services—38 U.S.C. 1151. surviving spouse who is not entitled to percent disabling, debilitation may be VA will grant DIC to the survivor of a special monthly DIC based on the need assumed. veteran whose death was caused by VA- for regular aid and attendance, as provided in paragraphs (a) and (b) of (iv) There are primary causes of death furnished hospital care, medical or this section, is entitled to special which by their very nature are so surgical treatment, medical monthly DIC if he or she is permanently overwhelming that eventual death can examination, training and rehabilitation housebound. A surviving spouse will be be anticipated irrespective of coexisting services, or participation in a considered permanently housebound if conditions, but, even in such cases, compensated work therapy program, in substantially confined to his or her there is for consideration whether there the same manner as if the veteran’s home (ward or clinical areas, if may be a reasonable basis for holding death were service connected. See institutionalized) or immediate that a service-connected condition was § 5.350. premises because of a disability or of such severity as to have a material (c) Certain Federal Employees’ Group disabilities, and it is reasonably certain influence in accelerating death. In this Life Insurance beneficiaries ineligible. that such disability or disabilities will situation, however, it would not VA cannot pay DIC to any surviving remain throughout the surviving generally be reasonable to hold that a spouse, child or parent based on the spouse’s lifetime. service-connected condition accelerated death of a commissioned officer of the death unless such condition affected a Public Health Service, the Coast and (Authority: 38 U.S.C. 1311(c), (d), 1315(g)) Geodetic Survey, the Environmental vital organ and was of itself of a § 5.512 Eligibility for death compensation progressive or debilitating nature. Science Services Administration, or the National Oceanic and Atmospheric or death pension instead of dependency and indemnity compensation. (Authority: 38 U.S.C. 101(16), 501(a), 1121, Administration occurring after April 30, 1141, 1310) 1957, if any amounts are payable based (a) General rule. Subject to paragraph (b) of this section, VA will not pay death §§ 5.505–5.509 [Reserved] on the same death under the Federal Employees’ Group Life Insurance Act of compensation or death pension to any Dependency and Indemnity 1954 (Pub. L. 83–598, 86 Stat. 736, as person eligible for dependency and Compensation—General amended). indemnity compensation (DIC) based (d) Special rules for parents’ DIC. The upon a death occurring after December § 5.510 Dependency and indemnity 31, 1956. compensation—basic entitlement. basis of entitlement described in (b) Right of spouse to elect death (a) Definition. Dependency and paragraph (b)(2) of this section does not apply to parent’s DIC, and payment of pension. A surviving spouse eligible for indemnity compensation (DIC) is a DIC may elect to receive death pension monthly VA payment to a veteran’s parent’s DIC is subject to income limitations. See §§ 5.530 through 5.537 instead of DIC. For effective date survivor (surviving spouse, child, or information, see § 5.743(a). parent) based on the veteran’s death. for special eligibility and payment rules for parent’s DIC. (Authority: 38 U.S.C. 1317) (b) Bases for entitlement. There are three ways in which a survivor may (Authority: 38 U.S.C. 101(14), 1151, 1304, §§ 5.513–5.519 [Reserved] become entitled to DIC: 1310, 1315, 1318; Sec. 501(c)(2), Pub. L. 84– Dependency and Indemnity (1) Service-connected death—38 881, 70 Stat. 880, as amended by Sec. 13(u), Pub. L. 85–857, 72 Stat. 1266; Sec. 5, Pub. L. Compensation—Eligibility U.S.C. 1310. (i) VA will grant DIC to the 91–621, 84 Stat. 1864) Requirements and Payment Rules for survivor of a veteran when it determines Surviving Spouses and Children that the cause of the veteran’s death, § 5.511 Special monthly dependency and whether occurring during or after indemnity compensation. § 5.520 Dependency and indemnity service, is service connected. See 38 (a) Entitlement based on need for compensation—time of marriage U.S.C. 1310, Deaths entitling survivors regular aid and attendance. A surviving requirements for surviving spouses. to dependency and indemnity spouse or parent in receipt of (a) Purpose. In addition to meeting the compensation, and § 5.504. dependency and indemnity marriage requirements necessary to

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qualify as a surviving spouse, as defined § 5.521 Dependency and indemnity U.S.C. 5314 to offset an indebtedness of at § 5.200(a), a surviving spouse must compensation benefits for survivors of the veteran; meet certain requirements concerning certain veterans rated totally disabled at (iii) The veteran had not waived the time of his or her marriage to the time of death. retired or retirement pay in order to veteran in order to be eligible for (a) Even though a veteran died of non- receive compensation; dependency and indemnity service-connected causes, VA will pay (iv) VA was withholding payments compensation (DIC). This section sets death benefits to the surviving spouse or under the provisions of 10 U.S.C. out those requirements. child in the same manner as if the 1174(h)(2); (b) Time of marriage requirements.— veteran’s death was service connected, (v) VA was withholding payments (1) Surviving spouse eligible under if: because the veteran’s whereabouts were § 5.510(b)(1) or (3). A surviving spouse (1) The veteran’s death was not the unknown, but the veteran was otherwise meets the time of marriage requirements result of his or her willful misconduct; entitled to continued payments based for DIC under the bases for eligibility set and on a total service-connected disability out in § 5.510(b)(1) or (3) if his or her (2) At the time of death, the veteran rating; or marriage to the veteran meets any of the was receiving, or was entitled to receive, (vi) VA was withholding payments following criteria: compensation for service-connected under 38 U.S.C. 5308 but determined (i) The surviving spouse married the disability that was: that benefits were payable under 38 veteran before or during the veteran’s (i) Rated by VA as totally disabling for U.S.C. 5309. military service. a continuous period of at least 10 years (c) For purposes of this section, ‘‘rated (ii) The surviving spouse was married immediately preceding death; by VA as totally disabling’’ includes to the veteran for 1 year or more. (ii) Rated by VA as totally disabling total disability ratings based on Multiple periods of marriage may be continuously since the veteran’s release unemployability (§ 4.16 of this chapter). added together to meet the 1-year from active duty and for at least 5 years § 5.522 Dependency and indemnity marriage requirement. immediately preceding death; or (iii) Rated by VA as totally disabling compensation benefits for survivors of (iii) The surviving spouse was certain veterans rated totally disabled at married to the veteran for any length of for a continuous period of not less than 1 year immediately preceding death, if time of death—offset of wrongful death time and a child was born of the damages. marriage or was born to them before the the veteran was a former prisoner of war. (a) Applicability. This section applies marriage. See § 5.1 for the definition of, when a surviving spouse or child: child born of the marriage and child (Authority: 38 U.S.C. 1318(b)) (1) Is eligible for dependency and born before the marriage. (b) For purposes of this section, indemnity compensation (DIC) on the (iv) The surviving spouse married the entitled to receive means that the basis described in § 5.510(b)(2), veteran no later than 15 years after the veteran filed a claim for disability concerning veterans with a service- date of termination of the period of compensation during his or her lifetime connected disability rated as totally service in which the injury or disease and one of the following circumstances disabling at the time of death under 38 causing the veteran’s death was is satisfied: U.S.C. 1318; and incurred or aggravated. For purposes of (1) The veteran would have received (2) Receives any money or property of paragraph (b)(1) of this section, period total disability compensation at the time value pursuant to an award in a judicial of service means a period of active of death for a service-connected proceeding based upon, or a settlement military service from which the veteran disability rated totally disabling for the or compromise of, any cause of action was discharged under conditions other period specified in paragraph (a)(2) of for damages for the wrongful death of than dishonorable. If the surviving this section but for clear and the veteran whose death is the basis for spouse has been married to the veteran unmistakable error committed by VA in such benefits. more than once, see § 5.200, Surviving a decision on a claim filed during the (b) Offset. VA will not pay DIC on the spouse: requirement of valid marriage to veteran’s lifetime; or basis described in § 5.510(b)(2), veteran. (2) Additional evidence submitted to concerning veterans with a service- (2) Surviving spouse eligible under VA before or after the veteran’s death, connected disability rated as totally § 5.510(b)(2). A surviving spouse meets consisting solely of service department disabling at the time of death under 38 the time of marriage requirements for records that existed at the time of a prior U.S.C. 1318, for any month after a DIC under the basis for eligibility set out VA decision but were not previously month in which the beneficiary receives in § 5.510(b)(2), concerning veterans considered by VA, provides a basis for money or property described in with a service-connected disability rated reopening a claim finally decided paragraph (a)(2) of this section until the as totally disabling at the time of death during the veteran’s lifetime and for total amount of the DIC benefits that under 38 U.S.C. 1318, if his or her awarding a total service-connected would otherwise have been payable marriage to the veteran meets any of the disability rating retroactively in equals the total amount of such money following criteria: accordance with §§ 5.166 and 5.55(b), and/or value of such property. This (i) The surviving spouse was married for the relevant period specified in paragraph (b) does not apply to DIC to the veteran continuously for 1 year or paragraph (a)(2) of this section; or benefits payable under this section for more immediately preceding the (3) At the time of death, the veteran any period before the end of the month veteran’s death. had a service-connected disability that in which such money or property was (ii) The surviving spouse was married was continuously rated totally disabling received. to the veteran for any length of time and by VA for the period specified in (c) Amount of offset. The following a child was born of the marriage or was paragraph (a)(2) of this section, but was rules apply when calculating the born to them before the marriage. See not receiving compensation because: amount to be offset in DIC cases: § 5.1 for the definition of child born of (i) VA was paying the compensation (1) VA will count in the amount to be the marriage and child born before the to the veteran’s dependents; offset damages typically recoverable marriage. (ii) VA was withholding the under wrongful death statutes, such as (Authority: 38 U.S.C. 1151, 1304, 1310, 1318) compensation under authority of 38 reimbursement for the loss of support,

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services, and other contributions, which award. The rate of the benefit will be the will be increased by the amount set the surviving spouse or child would total of the basic monthly rate specified forth in 38 U.S.C. 1311(c). have received if the veteran had lived in paragraph (b) or (d) of this section (3) Increase for housebound status. If and, where allowed, reimbursement for and any applicable increases specified the surviving spouse is not entitled to pain, suffering or mental anguish of the in paragraph (c) or (e) of this section. the regular aid and attendance survivors due to death. Damages (b) Basic monthly rate. Except as allowance but is housebound under the recoverable as compensation for injuries provided in paragraph (d) of this criteria in § 5.391(b), Special monthly suffered by, or economic loss sustained section, the basic monthly rate of DIC pension for a veteran or surviving by, the veteran prior to death such as for a surviving spouse will be the spouse at the housebound rate, the wages lost prior to death, medical amount set forth in 38 U.S.C. 1311(a)(1). monthly DIC rate will be increased by expenses, and compensation for the (c) Section 1311(a)(2) increase. The the amount set forth in 38 U.S.C. veteran’s pain and suffering prior to basic monthly rate under paragraph (b) 1311(d). death are not counted. of this section will be increased by the (4) For a 2-year period beginning on (2) VA will count in the amount to be amount specified in 38 U.S.C. 1311(a)(2) the date entitlement to DIC commenced, offset amounts paid to a third party to if the veteran, at the time of death, was the DIC paid monthly to a surviving satisfy a legal obligation of the surviving receiving, or was entitled to receive, spouse with one or more children under spouse or child. VA will also count the compensation for service-connected age18 will be increased by the amount payment of the claimant’s proportional disability that was rated by VA as totally set forth in 38 U.S.C. 1311(f), regardless share of attorney’s fees, court costs, and disabling for a continuous period of at of the number of such children. The DIC other expenses incident to the civil least 8 years immediately preceding payable under this paragraph (e) is in claim. death. Determinations of entitlement to addition to any other DIC payable. The (3) VA will not count in the amount this increase will be made in accordance increase in DIC of a surviving spouse to be offset money or property payable with paragraph (f) of this section. under this paragraph (e) will cease to a person or entity other than the (d) Alternative basic monthly rate for beginning with the first of the month spouse or child under the terms of the death occurring prior to January 1, after the month in which the youngest judgment, settlement, or compromise 1993. The basic monthly rate of DIC for child of the surviving spouse has agreement unless the spouse or child a surviving spouse when the death of attained age 18. receives the benefit of such a payment. the veteran occurred before January 1, For example, wrongful death damages 1993, will be the amount specified in 38 (Authority: 38 U.S.C. 1311(f)) paid to a veteran’s estate or into a trust U.S.C. 1311(a)(3) corresponding to the (f) Criteria governing section or similar arrangement will be counted veteran’s pay grade in service, but only 1311(a)(2) increase. In determining in the amount to be offset to the extent if such rate is greater than the total of whether a surviving spouse is entitled to that they are distributed to, or available the basic monthly rate and the section the section 1311(a)(2) increase under for the use and benefit of, the surviving 38 U.S.C. 1311(a)(2) increase (if paragraph (c) of this section, the spouse or child. applicable) the surviving spouse is following standards will apply. (4) VA will not count in the amount entitled to receive under paragraphs (b) (1) Marriage requirement. The to be offset benefits received under and (c) of this section. The Secretary of surviving spouse must have been Social Security or worker’s the concerned service department will married to the veteran for the entire 8- compensation even though such certify the veteran’s pay grade and the year period referenced in paragraph (c) benefits may have been awarded in a certification will be binding on VA. DIC of this section. judicial proceeding. paid pursuant to this paragraph (d) may (2) Determination of total disability. (5) The value of property received is not be increased by the section As used in paragraph (c) of this section, that property’s fair market value at the 1311(a)(2) increase under paragraph (c) the phrase ‘‘rated by VA as totally time it is received by the claimant. of this section. disabling’’ includes total disability (d) Beneficiary’s duty to report receipt (e) Additional increases. One or more ratings based on unemployability (§ 4.16 of money or property. Any person of the following increases may be paid of this chapter). entitled to DIC on the basis described in in addition to the basic monthly rate (3) Definition of ‘‘entitled to receive’’. § 5.510(b)(2), concerning veterans with a and the 38 U.S.C. 1311(a)(2) increase. As used in paragraph (c) of this section, service-connected disability rated as (1) Increase for a child. If the the phrase entitled to receive means that totally disabling at the time of death surviving spouse has one or more the veteran filed a claim for disability under 38 U.S.C. 1318, must promptly children of the deceased veteran who compensation during his or her lifetime report to VA the receipt of any money are under age18 (including a child not and one of the following circumstances or property described in paragraph (a)(2) in the surviving spouse’s actual or is satisfied: of this section. This obligation may be constructive custody or a child who is (i) The veteran would have received satisfied by providing VA a copy of the in active military service), the monthly total disability compensation for the judgment, settlement agreement, or DIC rate will be increased by the period specified in paragraph (c) of this compromise agreement awarding the amount set forth in 38 U.S.C. 1311(b) for section but for clear and unmistakable money or property. Overpayments each child. error committed by VA in a decision on created by failure to report will be (2) Increase for regular aid and a claim filed during the veteran’s subject to recovery if not waived. attendance. If the surviving spouse is lifetime; or (Authority: 38 U.S.C. 1318(d)) determined to need regular aid and (ii) Additional evidence submitted to attendance under the criteria in VA before or after the veteran’s death, § 5.523 Dependency and indemnity §§ 5.320, Determining need for regular consisting solely of service department compensation rate for a surviving spouse. aid and attendance, and 5.332(c), records that existed at the time of a prior (a) General determination of rate. Additional allowance for regular aid VA decision but were not previously When VA grants a surviving spouse and attendance under 38 U.S.C. considered by VA, provides a basis for entitlement to dependency and 1114(r)(1) or for a higher level of care reopening a claim finally decided indemnity compensation (DIC), VA will under 38 U.S.C. 1114(r)(2) or is a patient during the veteran’s lifetime and for determine the rate of the benefit it will in a nursing home, the monthly DIC rate awarding a total service-connected

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disability rating retroactively in payment of the DIC award. Retroactive §§ 5.526–5.529 [Reserved] accordance with §§ 5.150(a), 5.153, and payment is calculated by determining Dependency and Indemnity 5.166, for the period specified in the difference between the total amount Compensation—Eligibility paragraph (c) of this section; or payable for all children, including the Requirements and Payment Rules for a (iii) At the time of death, the veteran additional child during the retroactive Parent had a service-connected disability that period and the total amount VA actually was continuously rated totally disabling paid to the other children during that § 5.530 Eligibility for, and payment of, by VA for the period specified in period. If more than one child parent’s dependency and indemnity paragraph (c) of this section, but was not reestablishes entitlement as described in compensation. receiving compensation because: paragraph (a) of this section, the (a) Basic eligibility. A veteran’s (A) VA was paying the compensation retroactive award will be paid to each surviving parent may receive to the veteran’s dependents; such child in equal shares. dependency and indemnity (B) VA was withholding the compensation (DIC) on the basis (2) Payment commencement date for compensation under the authority of 38 described in § 5.510(b)(1), concerning full equal share. The additional child U.S.C. 5314 to offset an indebtedness of service-connected death under 38 U.S.C. will be entitled to a full equal share of the veteran; 1310, and § 5.510(b)(3), concerning (C) The veteran had not waived DIC the first day of the month after the veterans whose death was due to certain retired pay in order to receive month in which VA approved the VA-furnished medical, training, compensation; additional child’s reestablished DIC compensated work therapy, or (D) VA was withholding payments award. rehabilitation services under 38 U.S.C. under the provisions of 10 U.S.C. (c) Effective date of payment of 1151. DIC is not payable to a parent on 1174(h)(2); reduced shares to any other child. The the basis described in § 5.510(b)(2), (E) VA was withholding payments running award to any other child will be concerning veterans with a service- because the veteran’s whereabouts were reduced to the amount of their new connected disability rated as totally unknown, but the veteran was otherwise equal shares effective the first day of the disabling at the time of death under 38 entitled to continued payments based month after the month in which VA U.S.C. 1318. on a total service-connected disability approved the additional child’s (b) Parent’s DIC is income based. rating; or reestablished DIC award. Unlike DIC benefits for a surviving (F) VA was withholding payments (Authority: 38 U.S.C. 1313(b), 5110(e), 5111) spouse and child, the amount of a under 38 U.S.C. 5308 but determines parent’s DIC payable is adjusted based that benefits were payable under 38 Cross-reference: Sections 5.693 on a parent’s income and DIC is not U.S.C. 5309. Beginning date for certain VA payments, payable to a parent whose income (Authority: 38 U.S.C. 501(a), 1311, 1314, and and 5.696 Payments to or for a child exceeds statutory limits. Sections 5.531 1321) pursuing a course of instruction at an through 5.537 provide income and § 5.524 Awards of dependency and approved educational institution. payment rules. indemnity compensation benefits to a child (c) Net worth not considered. Net when there is a retroactive award to a § 5.525 Awards of dependency and worth is not a factor in determining schoolchild. indemnity compensation when not all entitlement to a parent’s DIC or the dependents apply. (a) Applicability. Dependency and amount of a parent’s DIC payable. indemnity compensation (DIC) is Except as provided in § 5.536(e), in (Authority: 38 U.S.C. 501(a), 1151, 1310, payable to a child when there is no any case where a dependency and 1315, 1318) surviving spouse entitled to DIC. The indemnity compensation (DIC) claim § 5.531 General income rules for parent’s total amount VA pays to a child has been filed by or on behalf of at least dependency and indemnity compensation. depends on the number of children, and one dependent but VA believes that the amount that is paid to each child in other dependents may be entitled to DIC (a) All payments are counted in equal shares. This section states an based on the death of the same veteran, income. All payments of any kind from exception that applies when all of the the award (original or amended) to all any source are counted in determining following conditions are met: dependents who have filed claims will the income of a veteran’s parent, except as provided in § 5.533. (1) DIC is currently being paid to one be made for all periods at the rates and (b) Payments. (1) What is counted. For or more children; in the same manner as if there were no purposes of this section, ‘‘payments’’ are (2) DIC had previously been paid to dependents other than the dependents cash and cash equivalents (such as an additional child, but payment was who filed claims. However, if the file checks and other negotiable discontinued because that child reached reflects that there are additional instruments) and the fair market value age 18; potential DIC claimants and less than 1 of personal services, goods, or room and (3) DIC has been reestablished for that year has passed since the veteran’s child because he or she is attending an board a parent receives in lieu of other death, the award to a dependent who forms of payment. approved educational institution; and has filed a claim will be made at the rate (4) The effective date of the additional (2) What is not counted. ’’Payments’’ which would be payable as if all child’s reestablished entitlement is prior do not include any of the following: dependents were receiving benefits. If, to the date VA received that child’s (i) The value of a parent’s use of his at the expiration of the 1-year period, application to reestablish entitlement. or her property, such as the rental value (b) Award to the additional child.—(1) claims have not been filed for such of a home a parent owns and lives in. Retroactive payment. When VA dependents, VA will pay the full rate to (ii) Dividends from commercial approves reinstatement of DIC to an the dependents already receiving DIC. insurance policies. additional child, that child is entitled to This payment will include any (iii) Retirement benefits from the retroactive payment for the time period retroactive amounts to which they are following sources (or to the following between when the child’s entitlement entitled. persons), if the benefits have been arose and the time VA resumed (Authority: 38 U.S.C. 501(a)) waived pursuant to Federal statute:

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(A) Civil Service Retirement and (Authority: 38 U.S.C. 1315(f)) this paragraph (c) a claimant’s statement Disability Fund; as to the amount and nature of each § 5.532 Deductions from income for (B) Railroad Retirement Board; parent’s dependency and indemnity expense, the date of payment, and the (C) District of Columbia, for firemen, compensation. identity of the creditor unless the policemen, or public school teachers; circumstances create doubt as to the (D) Former U.S. Lighthouse Service. (a) Expenses of a business or profession. Necessary business credibility of the statement. (c) Spousal income combined. Income (d) Unusual medical expenses.—(1) operating expenses are deductible from for purposes of a parent’s dependency Definitions—(i) Family members. For gross income from a business or and indemnity compensation (DIC) purposes of this section, a family profession. Examples include the cost of benefits is the combined income of a member is a relative of the parent or goods sold and payments for rent, taxes, parent and the parent’s spouse, unless parent’s spouse, who is a member of the upkeep, repairs, and replacements. the marriage has been terminated or the household of the parent or parent’s Depreciation is not a deductible parent is legally separated from his or spouse, and whom the parent or expense. Losses sustained in operating a her spouse. Income is combined parent’s spouse has a moral or legal business or profession may not be whether the parent’s spouse is the obligation to support. This includes a deducted from income from any other veteran’s other surviving parent or the relative who would normally be a source. For purposes of this section, veteran’s stepparent. See § 5.534(c) resident of the household, but who is ‘‘business’’ includes, but is not limited concerning how much of the spouse’s physically absent due to unusual or to, the operation of a farm and income to count for the year of unavoidable circumstances, such as a transactions involving investment remarriage. child away at school or a family member (d) Income-producing property.—(1) property. (b) Expenses associated with confined to a nursing home. Scope. This paragraph (d) provides rules (ii) Unusual medical expenses. For disability, accident, or health insurance for determining whether income from purposes of this section, unusual property will be counted as a parent’s recoveries. VA will deduct from sums recovered medical expenses means unreimbursed income. The provisions of this under disability, accident, or health medical expenses above 5 percent of paragraph (d) apply to all property, real insurance medical, legal, or other annual income. For the definition of or personal, in which a parent has an expenses incident to the insured injury medical expenses that VA will deduct, interest, whether acquired through or illness. However, VA will not deduct see § 5.707. purchase, bequest or inheritance. the same medical expenses under this (2) Expenses of parent and parent’s (2) Proof of ownership. In determining family members. VA will deduct whether to count income from real or paragraph (b) and paragraph (d) of this section. amounts paid by a parent for his or her personal property, VA will consider the (c) Expenses of a deceased spouse or unusual medical expenses and those of terms of the recorded deed or other of the deceased veteran.—(1) Deceased family members. evidence of title. However, VA will spouse. Amounts a parent pays for the (3) Expenses of spouse and spouse’s accept the claimant’s statement following expenses of a deceased spouse family members. VA will deduct the concerning the terms of ownership in are deductible: unusual medical expenses of the spouse the absence of evidence to the contrary. (i) A deceased spouse’s just debts, and the spouse’s family members if the (3) Transfer of ownership with excluding debts secured by real or combined annual income of the parent retention of income. If a parent transfers personal property. and the parent’s spouse is the basis for ownership of property to another person (ii) The expenses of the spouse’s last calculating income. or legal entity, but retains the right to illness and burial to the extent such (4) When expenses are deducted. VA income, the income will be counted. expenses are not reimbursed by VA will deduct unusual medical expenses (4) Income from jointly owned under 38 U.S.C. chapter 23 (see subpart from income for the calendar year in property. In the absence of evidence J of this part concerning VA burial which they were paid regardless of showing otherwise, VA will consider a benefits) or 38 U.S.C. chapter 51 (see when the expenses were incurred. parent who owns property jointly with § 5.551(e) concerning the use of accrued (5) Proof of expenses. VA will accept others, including partnership property, benefits to reimburse the person who the claimant’s statement as to the to be entitled to a share of the income bore the expense of a deceased amount and nature of each medical from that property proportionate to the beneficiary’s last sickness or burial). expense, the date of payment, and the parent’s share of ownership. VA will (2) Deceased veteran. Amounts a identity of the creditor unless the accept the claimant’s statement parent pays for the expenses of the circumstances create doubt as to the concerning the terms of ownership in veteran’s last illness and burial are credibility of the statement. the absence of evidence to the contrary. deductible to the extent that such (6) Estimates of expenses for future (e) Procedure when income amounts expenses are not reimbursed by VA benefit periods. For purpose of are uncertain—deferred determinations. under 38 U.S.C. chapter 23 (see subpart authorizing prospective payment of When a parent is uncertain about the J of this part concerning VA burial benefits, VA may accept a claimant’s amount of income the parent will benefits). estimate of future medical expenses receive during a calendar year, VA will (3) When expenses are deducted. based on a clear and reasonable calculate dependency and indemnity Expenses deductible under this expectation that unusual medical payments for that calendar year using paragraph (c) are deductible for the year expenditure will be incurred. VA will the highest amount of income the parent in which they were paid. However, if adjust an award based on such an estimates, or VA’s best estimate of such expenses were paid during the estimate upon receipt of an amended income if the parent’s estimate appears year following the year the veteran or estimate or upon receipt of an eligibility to be unrealistically low in light of the spouse died, the expenses may be verification report. See §§ 5.708 and parent’s past income and current deducted for the year the expenses were 5.709 concerning requirements for circumstances. VA will adjust benefits, paid or the year of death, whichever is eligibility verification reports. or pay benefits, when actual total to the parent’s advantage. (e) Certain salary deductions not income for the year is determined. See (4) Proof of expenses. VA will accept deductible for determining income. For § 5.535. as proof of expenses deductible under purposes of determining a parent’s

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income, a salary may not be reduced by counted as income under this section. 6 of the Radiation Exposure the amount of deductions made under a This includes payments for: Compensation Act of 1990. retirement act or plan or for income tax (1) Annuities or endowments paid (Authority: 42 U.S.C. 2210 (note)) withholding. under a Federal, State, municipal, or (l) Ricky Ray Hemophilia Relief Fund (Authority: 38 U.S.C. 1315(f)) private business or industrial plan. (2) Old age and survivor’s insurance payments. Payments under section § 5.533 Income not counted for parent’s and disability insurance under title II of 103(c)(1) of the Ricky Ray Hemophilia dependency and indemnity compensation. the Social Security Act. Relief Fund Act of 1998. VA will not count payments from the (3) Retirement benefits received from (Authority: 42 U.S.C. 300c–22 (note)) the Railroad Retirement Board. following sources when calculating a (m) Energy Employees Occupational parent’s income for dependency and (4) Permanent and total disability or death benefits received from the Office Illness Compensation Program indemnity compensation (DIC) payments. Payments under the Energy purposes: of Workers’ Compensation Programs of the U.S. Department of Labor, the Social Employees Occupational Illness (a) Death gratuity. Death gratuity Compensation Program. payments by the Secretary concerned Security Administration, or the Railroad under 10 U.S.C. 1475 through 1480. Retirement Board, or pursuant to any (Authority: 42 U.S.C. 7385e(2)) This includes death gratuity payments worker’s compensation or employer’s (n) Payments to Aleuts. Payments to in lieu of payments under 10 U.S.C. liability statute, including damages certain eligible Aleuts under 50 U.S.C. 1478 made to certain survivors of collected incident to a tort suit under Appx. 1989c–5. employer’s liability law of the U.S. or a Persian Gulf conflict veterans (Authority: 50 U.S.C. Appx. 1989c–5(d)(2)) authorized by sec. 307, Pub. L. 102–25, political subdivision of the U.S. This ten 105 Stat. 82. percent exclusion applies after the (o) Increased inventory value of a business. The value of an increase of (b) Donations received. Donations income from the specified payments is stock inventory of a business. from public or private relief or welfare reduced by the deductions described in (p) Employer contributions. An organizations, including the following: § 5.532(b) concerning expenses employer’s contributions to health and (1) The value of maintenance associated with disability, accident, or hospitalization plans for either an active furnished by a relative, friend, or a civic health insurance recoveries. (5) A commercial annuity, or retired employee. or governmental charitable organization, endowment, or life insurance proceeds. (q) Other payments. Other payments including money paid to an institution (6) Disability, accident or health listed in §§ 5.706 and 5.707. for the care of the parent due to insurance proceeds. This ten percent impaired health or advanced age. (Authority: 38 U.S.C. 1315(f)) exclusion applies after the income from (2) Benefits received under the specified payments is reduced by § 5.534 When VA counts a parent’s income noncontributory programs, such as the deductions described in § 5.532(b) for parent’s dependency and indemnity Supplemental Security Income concerning expenses associated with compensation. payments. disability, accident, or health insurance (a) General rules. (1) VA counts (c) Certain VA benefit payments. The recoveries. income on a calendar year basis for following VA benefit payments: (h) Casualty loss reimbursement. purposes of a parent’s dependency and (1) Payments under 38 U.S.C. chapter Reimbursements of any kind for any indemnity compensation (DIC) benefits. 11, Compensation for Service- casualty loss are not counted, but only (2) The calendar year for which VA Connected Disability or Death. up to the greater of the fair market value will count income is the calendar year (2) Payments under 38 U.S.C. chapter or the reasonable replacement cost of in which the parent received the 13, Dependency and Indemnity the property involved immediately income, or anticipates receiving it. Compensation for Service-Connected preceding the loss. For purposes of this (3) VA will count a parent’s total Death. However, payments under 38 section, a ‘‘casualty loss’’ is the income for the calendar year except as U.S.C. 1312(a), described in § 5.583 are complete or partial destruction of provided in this section. counted as income. property resulting from an identifiable (b) Exception for first awards and (3) Nonservice-connected VA event of a sudden, unexpected or awards following a period of no disability and death pension payments. unusual nature. entitlement—proportionate annual (4) VA benefit payments listed in (i) Profit from sale of non-business income.—(1) When used. VA will use § 5.472(e). property. (1) Profit realized from the sale proportionate annual income for the (d) Certain life insurance payments. of real or personal property other than first award of parent’s DIC, or for Payments under policies of in the course of a business. However, resuming payments on an award of a Servicemembers’ Group Life Insurance, any amounts received in excess of the parent’s DIC which was discontinued U.S. Government Life Insurance, or sale price, such as interest payments, for a reason other than excess income or National Service Life Insurance. will be counted as income. a change in marital or dependency (e) Social Security death payments. (2) If payments are received in status, if it is to the parent’s advantage. Lump-sum death payments under title II installments, the sums received Otherwise, VA will base the award on of the Social Security Act. (including principal and interest) will the parent’s actual total annual income (f) State service bonuses. Payments of not be counted until the parent has for the entire calendar year. a bonus or similar cash gratuity by any received an amount equal to the sale (2) Proportionate annual income State based upon service in the Armed price. Any amounts received after the calculation. A proportionate annual Forces. sale price has been recovered will be income calculation disregards income (g) 10 percent of income from counted as income. received, and expenses paid, prior to the retirement plans and similar plans and (j) Payment for civic obligations. effective date of an initial award of programs. 10 percent of the amount of Payments received for discharge of jury parent’s DIC, or prior to the effective payments to a person under public or duty or other obligatory civic duties. date of an award that follows a period private retirement, annuity, endowment, (k) Radiation Exposure Compensation of no entitlement for a reason other than or similar plans or programs is not Act payments. Payments under Section excess income or a change in marital or

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dependency status. In performing a for a particular calendar year, or paid Federal Register notice of an increase in proportionate annual income less than the full applicable statutory the rates of parent’s DIC. calculation, VA first determines what rate for that particular calendar year, but (c) One parent—remarried. Where the parent’s income was for the portion the parent’s income then changes. there is only one parent and that parent of the calendar year from the effective (2) Actual income. If VA adjusts a has remarried and is living with his or date of the award of a parent’s DIC to parent’s benefits for a given 12-month her spouse, VA will pay DIC at the rate the end of the calendar year. VA then annualization period, pension or for one parent who has not remarried, calculates what annual income would dependency and indemnity or the rate applicable to a remarried have been if income had been received compensation may be awarded or parent living with his or her spouse, at the same rate for the entire calendar increased, effective the beginning of the whichever will provide the greater year. next 12-month annualization period, if monthly rate of DIC. However, § 5.531(c) (3) How VA computes proportionate satisfactory evidence is received within (requiring spousal income to be annual income. VA will use the that period. combined) applies in either instance. (d) One parent—marriage ends or following steps in making the (Authority: 38 U.S.C. 501(a), 1315(e), 5110(a)) proportionate annual income parent is legally separated from spouse. calculation, rounding the result only at Cross-Reference: Sections 5.708 When one parent has remarried and that the final step. Eligibility verification reports and 5.709 marriage has ended or the parent is (i) Determine income from the Claimant and beneficiary responsibility legally separated from his or her spouse, effective date of the award of a parent’s to report changes. the rate of DIC for that parent will be that which would be payable if there is DIC to the end of the calendar year, § 5.536 Parent’s dependency and disregarding income received and indemnity compensation rates. only one parent alone or two parents not expenses paid before the effective date living together, whichever applies. (a) Statutory rates. VA pays (e) Two parents living—one parent of the award. dependency and indemnity (ii) Divide the result by the number of files DIC application. Where there are compensation (DIC) to a parent based days from the effective date of the award two parents of the veteran living and upon statutory rates that vary depending of parent’s DIC to the end of the only one parent has filed an application upon whether both parents are living, calendar year. for DIC, the rate of DIC payable to that upon the parent’s marital status, upon (iii) Multiply that result by 365. This parent will be that which would be whether a parent is legally separated result, rounded down to the nearest payable to such parent if both parents from his or her spouse, and upon dollar, is the proportionate annual had filed an application. whether a parent is a patient in a income. (f) Minimum payment. (1) Five dollar (c) Exception for an increase in nursing home, significantly disabled or minimum. If any payment of a parent’s income because of a parent’s marriage. blind, or so disabled or blind as to DIC is due after the applicable rate If a parent marries during the applicable require the aid and attendance of payable is adjusted for income, the calendar year, income received by the another person. These rates are reduced amount of that payment will not be less parent’s spouse prior to the date of the by varying amounts that depend upon than $5 monthly. marriage is not counted. the parent’s income. See 38 U.S.C. 1315. (2) Minimum DIC payment required Rate and income limitations are for special monthly DIC. The special (Authority: 38 U.S.C. 501(a), 1315(b)) periodically adjusted whenever there is monthly DIC will be paid to a parent § 5.535 Adjustments to a parent’s an increase in benefit amounts payable who is a patient in a nursing home, is dependency and indemnity compensation under title II of the Social Security Act. blind, or in need of aid and attendance when income changes. See 38 U.S.C. 5312(b). In cases based on only if he or she is entitled to at least (a) (1) Applicability. This paragraph service in the Commonwealth Army of the minimum DIC payment described in (a) applies when, based on anticipated the Philippines, as a guerrilla, or as a paragraph (f)(1) of this section. income, VA did not pay parent’s DIC for Philippine Scout, see § 5.615 (g) Rate changes due to changes in a particular calendar year, or paid less (concerning calculation of the parent’s marital status or living arrangements. If than the full applicable statutory rate for DIC income limitation for claims based a parent’s conditions of entitlement that particular calendar year, but on such service). change because of a change in marital income for that calendar year was (b) Use of published rates and income status or living arrangements, VA will actually less than anticipated. limitations. Whenever there is a cost-of- determine the new rate payable based (2) Retroactive adjustment; income living increase in benefit amounts on the new status. For example, if the reporting time limitation. VA may payable under section 215(i) of title II of parent was unmarried for part of the retroactively pay a parent’s DIC or pay the Social Security Act, VA increases year, and married for part of the year, a higher rate of a parent’s DIC from the the annual income limitations and the VA will pay the applicable rate for an first of the applicable calendar year maximum monthly rates of parent’s DIC unmarried parent for the part of the year under the following circumstances: by the same percentage as the Social that the parent was unmarried, and then (i) Satisfactory evidence shows that Security increase. These increases are pay the applicable rate for a married income was actually less than effective on the same date as the Social parent for the part of the year that the anticipated for that calendar year; and Security increase. VA will publish parent was married. (ii) VA receives such evidence no parent’s DIC rates, the annual income (h) Rates payable when one of two later than the end of the calendar year limitations, and the formulas for parents receiving death compensation after the calendar year to which the adjusting parent’s DIC rates for annual elects DIC.—(1) Parent who elects DIC. evidence pertains. Otherwise, payment income in the Notices section of the The rate of DIC for the parent who elects or increased payments may not be made Federal Register when there is a change DIC will not exceed the amount that for the applicable calendar year on the in the amounts. VA will use this would be paid to the parent if both basis of such evidence. published data in calculating parent’s parents had elected DIC. (b) (1) Applicability. This paragraph DIC payments. The rates referenced in (2) Parent still receiving death (b) applies when, based on actual paragraphs (c) through (e) of this section compensation. The rate of death income, VA did not pay a parent’s DIC are the rates specified in the applicable compensation for the parent who did

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not elect DIC will not exceed the (1) Claim received no later than 1 year new payee is a date before VA received amount that would be paid if both after death. If VA grants DIC based on the new payee’s claim, then the award parents were receiving death a claim received no later than 1 year to the former payee will be discontinued compensation. after the veteran’s death, the effective on the effective date of the new payee’s (Authority: 38 U.S.C. 501(a), 1315, 5312) date is the first day of the month in DIC award. which the veteran’s death occurred. (2) Effective date of discontinuance of § 5.537 Payment intervals for parent’s (2) Claim received more than 1 year payments to the former payee if the new dependency and indemnity compensation. after death. If VA grants DIC based on payee’s award is effective on the date (a) Monthly payments. VA pays a claim received more than 1 year after VA received the new payee’s claim. If parent’s dependency and indemnity the veteran’s death, then the effective the effective date of an award of DIC to compensation (DIC) monthly, except as date is the date VA received the claim. the new payee is the date VA received provided in paragraph (b) of this (c) DIC elected in lieu of death the new payee’s claim, then the award section. compensation. If VA receives an to the former payee will be discontinued (b) Exception. VA will pay the election of DIC in lieu of death effective the date of receipt of the new parent’s DIC benefit semiannually, on or compensation, the award of DIC benefits payee’s claim or the first day of the about June 1 and December 1, if the is effective the date of receipt of the month after the month for which VA amount of the annual benefit is less than election. See § 5.759. last paid benefits to the former payee, four percent of the maximum annual (d) DIC award to a child. The whichever is later. rate payable for that parent. However, a following effective dates apply for DIC (Authority: 38 U.S.C. 5110(a), 5112(a)) parent receiving payment semiannually awards to a child: may elect to receive payment monthly (1) Claim received no later than 1 year § 5.540 Effective date and payment in cases in which receiving payments after date entitlement arose. If VA grants adjustment rules for award or semiannually would cause other Federal DIC based on a claim received no later discontinuance of dependency and benefits to be denied. than 1 year after the date entitlement indemnity compensation to a surviving arose, as defined in § 5.150, the effective spouse where payments to a child are (Authority: 38 U.S.C. 501(a), 1315) involved. date is the first day of the month in (a) General rule. When VA is paying Effective Dates which entitlement arose. (2) Claim received more than 1 year dependency and indemnity § 5.538 Effective date of dependency and after date entitlement arose. If VA grants compensation (DIC) to a veteran’s child indemnity compensation award. DIC based on a claim received more and a surviving spouse becomes entitled (a) Death in service. The following than 1 year after the date entitlement or loses entitlement, VA will effective dates apply for dependency arose, as defined in § 5.150, the effective discontinue or adjust payment of DIC as and indemnity compensation (DIC) date is the date VA received the claim, described in this section. (b) Surviving spouse establishes awards based upon a veteran’s death in except as otherwise provided in entitlement. This paragraph (b) applies service: §§ 5.230 and 5.696. when a surviving spouse becomes (e) Additional allowance for a child. (1) Claim received no later than 1 year entitled to DIC when VA is already Any additional allowance awarded for a after the date of initial report or finding paying DIC to the veteran’s child. of death. (i) If VA grants DIC based on child is effective on the date the (1) Rate for child lower than rate for a claim received no later than 1 year surviving spouse’s DIC award is surviving spouse—(i) Effective date. If a after the date the Secretary concerned effective, except as otherwise provided veteran’s child received DIC at a rate makes either an initial report of the in § 5.230. lower than the rate payable to the veteran’s actual death or a finding of the (Authority: 38 U.S.C. 5110(d)(1), (e)(1), (j)) surviving spouse, the award of DIC to veteran’s presumed death in active the surviving spouse is effective the date military service, the effective date is the § 5.539 Discontinuance of dependency provided by § 5.538. first day of the month fixed by that and indemnity compensation to a person no (ii) Rate payable to the surviving Secretary as the month of death in the longer recognized as the veteran’s spouse. The initial amount of DIC report or finding. surviving spouse. payable to the surviving spouse is the (ii) Exception. VA will not pay (a) Discontinuance required. When difference between the rate paid to the benefits based on a report of actual VA is paying dependency and child and the rate payable to the death under paragraph (a)(1)(i) of this indemnity compensation (DIC) to one surviving spouse. The full rate will be section for any period for which the person (‘‘former payee’’) as a veteran’s paid to the surviving spouse effective claimant received, or was entitled to surviving spouse and another person the first day of the month after the receive, any of the veteran’s following (‘‘new payee’’) establishes that he or she month for which VA last paid benefits military entitlements: an allowance, an is the surviving spouse entitled to that to the child. allotment, or service pay. benefit, VA will discontinue payment of (2) Rate for child same as or higher (2) Claim received more than 1 year DIC to the former payee. For than the rate for surviving spouse. If a after date of initial report or finding of information concerning the effective veteran’s child received DIC at a rate death. If VA grants DIC based on a claim date of the award of DIC to the new equal to or higher than the rate payable received more than 1 year after the date payee, see § 5.538. to the surviving spouse, the award of of the initial report or finding of death (b) Effective date of discontinuance of DIC to the surviving spouse is effective described in paragraph (a)(1)(i) of this payments to the former payee. DIC the first day of the month after the section, the effective date is the date VA payments to the former payee will be month for which VA last paid benefits received the claim. discontinued as follows: to the child. (b) Service-connected death after (1) Effective date of discontinuance of (c) Surviving spouse receives separation from service. The following payments to a former payee if the new dependency and indemnity effective dates apply for DIC awards payee’s award is effective before VA compensation after his or her based upon a veteran’s death after received the new payee’s claim. If the entitlement ends and a veteran’s child separation from service: effective date of an award of DIC to the is entitled to DIC. This paragraph (c)

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applies when a surviving spouse § 5.541 Effective date of reduction of a which the income increased, VA will continues to receive DIC after his or her surviving spouse’s dependency and adjust the effective date accordingly. entitlement ends and the veteran’s child indemnity compensation due to (b) Overpayments. If DIC was being recertification of pay grade. is entitled to DIC when the surviving paid to two parents living together, and spouse’s entitlement ends. If recertification of a veteran’s military an overpayment is created by the pay grade results in reduced retroactive discontinuance of DIC, then (1) Rate for child is lower than rate for dependency and indemnity the overpayment will be established on surviving spouse. If the veteran’s child compensation, VA will reduce the the award of each parent. is entitled to a rate of DIC lower than the benefit effective the first day of the (Authority: 38 U.S.C. 501(a), 5112(b)(4)) rate paid to the surviving spouse, the month after the month for which VA payments to the surviving spouse will last paid the greater benefit. § 5.544 Dependency and indemnity be reduced to the rate payable to the compensation rate adjustments when an child or children as if there were no (Authority: 38 U.S.C. 501(a), 1311) additional survivor files a claim. surviving spouse. This reduced benefit § 5.542 Effective date of an award or an This section does not apply to cases will be paid effective from the date the increased rate based on decreased income: governed by § 5.524. surviving spouse’s entitlement ends to Parents’ dependency and indemnity (a) General rule. If an additional the first day of the month after the compensation. survivor files a claim for dependency month for which VA last paid benefits (a) Time limit for receipt of evidence and indemnity compensation (DIC) to the surviving spouse. The award of of reduced income. If VA receives while another survivor is receiving DIC DIC to the child is effective the first day evidence of a decrease in expected or (for example, one or more children are of the month after the month for which actual income before the end of the receiving DIC and another child files for VA last paid benefits to the surviving calendar year after the calendar year to DIC) and the additional survivor has spouse. which the evidence pertains, the apparent entitlement to DIC, then VA will reduce DIC while VA determines (2) Rate for child higher than rate for effective date of an award or increased payment of parents’ dependency and the additional survivor’s entitlement. surviving spouse—(i) Effective date of indemnity compensation (DIC) based on (b) Effective date of reduction of discontinuance of payments to surviving that evidence will be the date benefits—(1) Benefits payable before spouse. If the veteran’s child is entitled entitlement arose, as defined in § 5.150, filing of claim. If benefits would be to a rate higher than the rate paid to the but not earlier than the beginning of the payable to the additional survivor from surviving spouse, the discontinuation of calendar year to which the evidence a date before the date VA received the the award to the surviving spouse is pertains. Otherwise, payment or additional survivor’s claim, the effective effective the first day of the month after increased payments may not be made date of any reduction in the benefit will the month for which VA last paid for that calendar year on the basis of be the date of the additional survivor’s benefits to the surviving spouse. such evidence. potential entitlement. (2) Benefits payable from the date of (ii) Effective date and rate for child. (b) Excessive income for a calendar application. If benefits would be The award to the veteran’s child is year. Unless paragraph (a) of this section payable to the additional survivor from effective the day after the end of the applies, if payments of parents’ DIC the date VA received the additional surviving spouse’s entitlement. The were not made or if payments were survivor’s claim, VA will reduce the initial amount of DIC payable to the made at a reduced rate for a particular benefit on the later of the following child is the difference between the rate calendar year because income did not dates: payable to the child and the rate paid to permit a higher payment, the effective (i) The date VA received the the surviving spouse. The full rate is date of an award or increased payment additional survivor’s claim; or payable effective the first day of the based on a reduction in income during (ii) The first day of the month after the month after the month for which VA that calendar year will be the beginning month for which VA last paid benefits last paid benefits to the surviving of the next calendar year. to the original survivor. spouse. (Authority: 38 U.S.C. 501(a), 1315(e), 5110(a)) (c) Effective date of award to additional survivor. If an award for the (3) Rate for child same as rate for the § 5.543 Effective date of reduction or additional survivor is warranted, the surviving spouse—(i) Effective date of discontinuance based on increased full rate to which the additional discontinuance of benefit to surviving income: Parents’ dependency and indemnity compensation. survivor is entitled is payable to the spouse. If the veteran’s child is entitled additional survivor from the effective to the same rate as the rate paid to the (a) Effective-date rule. If VA reduces date of that award. surviving spouse, the discontinuance of or discontinues parents’ dependency (d) Resumption of previous level of the award to the surviving spouse is and indemnity compensation (DIC) payments to other survivors. If effective the first day of the month after based on an increase in the parent’s entitlement is not established for the the month for which VA last paid expected or actual income for a additional survivor, benefits to other benefits to the surviving spouse. particular calendar year, the reduction survivors that were reduced under (ii) Effective date and rate for child. or discontinuance will be effective the paragraph (a) of this section will be If the veteran’s child is entitled to the first day of the month after the month resumed, if otherwise in order, from the same rate as the rate paid to the in which the income increased or is date of the reduction in the benefit. expected to increase. If VA cannot surviving spouse, the award of the full (Authority: 38 U.S.C. 1313, 5110(a), (e), 5112) determine the month in which the rate to the veteran’s child is effective the income increased or is expected to § 5.545 Effective dates of awards and first day of the month after the month increase, the effective date of the discontinuances of special monthly for which VA last paid benefits to the reduction or discontinuance will be dependency and indemnity compensation. surviving spouse. January 1 of the calendar year in which (a) Effective date of award—(1) (Authority: 38 U.S.C. 501(a), 5110(a), 5112(a)) the income increased. If VA later General rule. Except as provided in receives evidence showing the month in paragraph (a)(2) of this section, the

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effective date of an award of special records show that the child was on the may receive benefits under paragraph monthly dependency and indemnity school rolls on the last day of the (e)(1) of this section for periods before compensation (DIC) will be the later of: regular school term immediately before the beginning of benefits under chapter (i) The date VA receives the claim for the date of the deceased beneficiary’s 35. special monthly DIC; or death, then VA will consider the child (3) Deceased child’s 38 U.S.C. chapter (ii) The date entitlement arose (as to have been pursuing a course of 18 benefits. If a child claiming benefits defined in § 5.150). instruction on the date of the death. under 38 U.S.C. chapter 18 dies, any (2) Exception: retroactive award of (2) Dependent parent. A person accrued benefits resulting from such a DIC. When an award of DIC is effective claiming entitlement to accrued benefits claim are payable to the child’s for a period before the date of receipt of as a dependent parent must, on the date surviving parent. If there is no surviving the claim and a claimant is also entitled of the veteran’s death, have met the parent, such accrued benefits are to special monthly DIC at the time of requirements of §§ 5.238 and 5.300. payable to the extent provided in that DIC award, the effective date of (b) Limitations. This section is subject paragraph (f) of this section. special monthly DIC will be the date to §§ 5.565, 5.567, and 5.568, Non- (f) No eligible claimant. If there is no entitlement to special monthly DIC payment of certain benefits upon death eligible claimant under paragraphs (c) arose. of an incompetent veteran. See also through (e) of this section, then VA may (b) Effective date of discontinuance— § 5.592. pay accrued benefits to the person who (1) Aid and attendance. When a parent (c) Deceased beneficiary was the bore the expense of the deceased or surviving spouse is no longer in need veteran.—(1) Order of priority of beneficiary’s last sickness or burial, but of regular aid and attendance, VA will accrued benefits payments. If the only to the extent necessary to discontinue special monthly DIC based deceased beneficiary was the veteran, reimburse that person for such expense. upon the need for regular aid and accrued benefits are payable to a living VA will not pay accrued benefits to any attendance effective the first day of the person or persons, in the following political subdivision of the U.S. month after the month for which VA order of priority: (g) Effect of failure to claim accrued last paid that benefit. (i) The veteran’s surviving spouse. If benefits, or waiver of benefits, on rights (2) Housebound. When a surviving the marriage between the veteran and of another claimant.—(1) Person with spouse is no longer housebound, VA the surviving spouse met the definition higher priority. If there is a living person will discontinue special monthly DIC of marriage in § 5.191, then the with a higher priority when the based upon housebound status effective continuous cohabitation requirement in beneficiary dies, VA will not pay the first day of the month after the § 5.200(b)(3) does not apply. accrued benefits to any person with a month for which VA last paid that (ii) The veteran’s surviving children lower priority unless, no later than 1 benefit. (in equal shares). year after the deceased beneficiary’s (c) Special Monthly DIC. Special (iii) The veteran’s surviving death, the person with a higher priority monthly DIC based on the need for dependent parents (in equal shares). dies, forfeits entitlement, or otherwise (2) No eligible claimant. If there is no regular aid and attendance is not becomes disqualified. In such a case, eligible claimant, such accrued benefits payable to the surviving parent or VA will pay accrued benefits to the are payable to the extent provided in surviving spouse while he or she is person next in priority if that person paragraph (f) of this section. receiving hospital care as a veteran. VA files a timely claim. (d) Deceased beneficiary was the will resume special monthly DIC based (2) Person within a category of veteran’s spouse—(1) Surviving spouse on the need for regular aid and potential claimants. If there is a living of a deceased veteran. If the deceased attendance effective the day that he or person within a category of potential beneficiary was the surviving spouse or she was discharged or released from claimants (children, for example), VA remarried surviving spouse of a hospital care. See §§ 5.721 and 5.761. will not pay that person’s share of deceased veteran, then VA may pay accrued benefits to anyone else within (Authority: 38 U.S.C. 501(a), 1311(c) and (d), accrued benefits to the veteran’s that category unless, no later than 1 year 1315(g), 5110, 5112) children in equal shares. If there is no after the deceased beneficiary’s death, Cross Reference: § 5.511, Special child, then VA will pay accrued benefits that person dies, forfeits entitlement, or monthly dependency and indemnity as stated in paragraph (f) of this section. otherwise becomes disqualified. The compensation. (2) Spouse of a living veteran. If the deceased beneficiary was the spouse of other potential claimant must file a §§ 5.546–5.550 [Reserved] a living veteran, then VA will pay timely claim. (3) Applicability of paragraph (g). Accrued Benefits accrued benefits as stated in paragraph (f) of this section. Paragraphs (g)(1) and (2) of this section § 5.551 Persons entitled to accrued (e) Deceased beneficiary was the apply even if the ‘‘living person’’ benefits. veteran’s child—(1) General rule. If the referred to in those paragraphs fails to (a) Scope. For purposes of entitlement deceased beneficiary was the veteran’s file a timely claim or waives rights to to accrued benefits: child, then VA may pay accrued accrued benefits. (1) Child. (i) A person claiming benefits to the veteran’s surviving child (Authority: 38 U.S.C. 101(4)(A), 501(a), entitlement to accrued benefits as a who is entitled to death pension or 5121(a); Sec. 104, Pub. L. 108–183, 117 Stat. child must, on the date of the deceased dependency and indemnity 2656) beneficiary’s death, have met the compensation. If there is no eligible Cross Reference: § 5.1, for the requirements of § 5.220. claimant, such accrued benefits are definition of ‘‘political subdivision of (ii) This paragraph (a)(1)(ii) applies in payable to the extent provided in the U.S.’’; § 5.784, Special rules for a claim by a veteran’s child who is at paragraph (f) of this section. apportioned benefits on death of least age 18 but not yet age 23 and who (2) Surviving child who elected 38 beneficiary or apportionee. was pursuing a course of instruction on U.S.C. chapter 35 educational benefits. the date of the deceased beneficiary’s A surviving child who has elected § 5.552 Claims for accrued benefits. death. If such death occurred during a survivors’ and dependents’ educational (a) Time limit for filing. A claim for school vacation period and if school assistance under 38 U.S.C. chapter 35 accrued benefits must be filed no later

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than 1 year after the date of the (b) Non-qualifying benefits. VA improper negotiation of such check(s)), deceased beneficiary’s death. cannot pay the following benefits as to the payee’s survivor under § 5.551(b) (b) Other claims accepted as a claim accrued benefits: through (e), irrespective of whether the for accrued benefits. A claim filed with (1) Assistance in acquiring survivor files a claim. Any amount not VA by, for, or on behalf of, an automobiles and adaptive equipment paid in this manner will be paid to the apportionee, surviving spouse, child, or under 38 U.S.C. chapter 39; estate of the deceased beneficiary, parent for either of the following (2) Assistance in acquiring specially provided that the estate will not escheat benefits will also be accepted as a claim adapted housing under 38 U.S.C. (that is, revert to a governmental entity). for accrued benefits: chapter 21; (3) Deceased payee was not alive on (1) Death pension; or (3) Insurance under 38 U.S.C. chapter the last day of the period covered by the (2) Dependency and indemnity 19; check. If the payee was not alive on the compensation. (4) Naval pension under 10 U.S.C. last day of the period covered by the 6160; and (Authority: 38 U.S.C. 5101(b), 5121(c)) check, such funds cannot be paid under (5) Special allowance under 38 U.S.C. this section. § 5.553 Notice of incomplete applications 1312(a). (b) Payment to a claimant having a for accrued benefits. (Authority: 38 U.S.C. 5121(a)) lower order of priority. If a survivor If an application for accrued benefits having a higher order of priority dies, is incomplete because the claimant has § 5.555 Relationship between accrued- then VA will pay a claimant having a not furnished information necessary to benefits claims and claims filed by the lower order of priority under § 5.551(b) deceased beneficiary. establish that he or she is within the through (e), Persons entitled to accrued category of persons eligible for benefits (a) Claim for accrued benefits results benefits, as applicable, if it is shown under § 5.551, and if the claimant might from the deceased beneficiary’s that the person or persons having a be entitled to payment of any benefits entitlement. A claim for accrued higher order of priority are deceased at that may have accrued, then VA will benefits is an original claim, and is the time the claim is adjudicated. notify the claimant: separate from any claim filed during the (c) Payment of amounts withheld (a) Of the type of information required deceased beneficiary’s lifetime, during hospitalization. This section to complete the application; notwithstanding that the claimant’s does not apply to checks for lump sums (b) That VA will take no further action entitlement to accrued-benefits depends representing amounts withheld under on the claim unless VA receives the on the deceased beneficiary’s § 3.551(b) of this chapter as in effect required information; and entitlement. prior to the applicability date of this (c) That if VA does not receive the (b) Accrued-benefits claimant bound part 5 or § 5.727, or withheld before required information no later than 1 by existing decisions. A claimant for December 27, 2001, under former year after the date of the original VA accrued benefits is bound by any § 3.557 of this chapter (which concerned notification of information required, no existing benefits decision(s) on claims reduction of benefits when an benefits will be awarded on the basis of by the deceased beneficiary concerning incompetent veteran is hospitalized). that application. those benefits to the same extent that These amounts are governed by §§ 5.567 the deceased beneficiary was (or would and 5.568. (Authority: 38 U.S.C. 5121(c)) have been) bound by such decision(s). (Authority: 38 U.S.C. 501(a), 5122; Sec. 306, § 5.554 Benefits payable as accrued (Authority: 38 U.S.C. 501(a), 5101, 5121, Pub. L. 95–588, 92 Stat. 2497) benefits. 7104(b), 7105(c)) (a) Qualifying benefits. VA may pay § 5.565 Special rules for payment of the following benefits as accrued §§ 5.556–5.563 [Reserved] benefits on deposit in a special deposit benefits: Special Provisions account when a payee living in a foreign (1) Clothing allowance under 38 country dies. U.S.C. 1162; § 5.564 Cancellation of checks mailed to a (a) Purpose. Benefit payments will not (2) Service-connected disability deceased payee; payment of such funds as be sent to a payee living in a foreign compensation under 38 U.S.C. chapter accrued benefits. country if the Secretary of the Treasury 11; (a) Disposition of checks mailed to a determines that there is no reasonable (3) Dependency and indemnity deceased payee: general rules—(1) VA assurance the payee will receive the compensation under 38 U.S.C. chapter benefit checks not negotiated by a benefit check or will be able to negotiate 13; deceased payee must be returned. Upon it for full value. See §§ 5.714 and 5.715. (4) Survivors’ and dependents’ the death of a beneficiary, unnegotiated Up to $1,000 of such benefit payments educational assistance allowance or VA benefit checks must be returned to may be deposited in an account entitled special restorative training allowance the issuing office and canceled, subject ‘‘Secretary of the Treasury, Proceeds of under 38 U.S.C. chapter 35; to § 5.695 (permitting, under specific Withheld Foreign Checks’’ (special (5) Medal of Honor pension under 38 circumstances, a surviving spouse to deposit account). This section describes U.S.C. 1562; negotiate a check for the month in who is entitled to the funds in that (6) Monetary benefits for an eligible which the veteran died). Upon their account when the payee dies, when to child under 38 U.S.C. chapter 18; return, funds represented by such file a claim for those funds, and certain (7) Pension, including death pension checks may be paid under paragraph restrictions on payment. under 38 U.S.C. chapter 15; (a)(2) of this section. (b) Persons entitled to funds in special (8) Restored Entitlement Program for (2) Payment of benefits where a deposit account upon death of payee. Survivors (REPS) benefits (Sec. 156, deceased payee died on or after the last When the payee of a check for pension Public Law 97–377, 96 Stat.1920–22); day of the period covered by the check. or disability compensation dies, the (9) Subsistence allowance under 38 If the payee died on or after the last day deceased payee’s funds in the special U.S.C. chapter 31; and of the period covered by the returned deposit account are payable as follows: (10) Veterans’ educational assistance check(s), VA will pay the amount (1) If the deceased payee was the under 38 U.S.C. chapter 30, 32, or 34 or represented on the returned check (or veteran, to the surviving spouse or, if 10 U.S.C. chapter 1606 or 1607. any amount recovered by VA after there is no surviving spouse, to children

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of the veteran under 18 years of age on veteran’s behalf and redeposited upon next in priority if that person files a the date of the veteran’s death in equal the maturity of the bonds, an amount timely claim. shares; equal to the amount withdrawn for the (ii) If there is a living person within (2) If the deceased payee was the purchase will be considered as derived a category of potential claimants veteran’s surviving spouse, to children from the deposits. (children, for example), VA will not pay of the spouse under 18 years of age on (c) Funds excluded. This section does that person’s share of funds governed by the date of the spouse’s death in equal not apply to the disposition of: this section to anyone else within that shares; (1) Amounts resulting from funds category unless, within 5 years after the (3) If the deceased payee was the deposited in the PFOP account by the veteran’s death, that person dies, forfeits recipient of an apportioned share of the veteran or others besides VA, regardless entitlement, or otherwise becomes veteran’s pension or disability of the source of the deposit; or disqualified. The other potential compensation, to the veteran to the (2) Amounts, such as interest, claimants must file timely claims. extent the special deposit account representing an increase in the value of (iii) Paragraphs (e)(3)(i) and (ii) apply consists of such apportionment funds originally deposited by VA. even if the ‘‘living person’’ referred to in payments; or (d) Eligible persons. The funds those paragraphs fails to file a timely (4) In any other case, to the person described in paragraph (b) of this claim or waives rights to funds governed who bore the expense of the burial of section will be paid to a person, or by this section. the payee, but only to the extent persons, living at the time of settlement (Authority: 38 U.S.C. 5502(d)) necessary to reimburse that person for (that is, when VA pays out the PFOP such expenses. account) in the following priority: § 5.567 Special rules for payment of Old- (c) Time limit for filing claims and (1) The veteran’s surviving spouse. If Law Pension when a hospitalized evidence. (1) A claim for the funds in the marriage between the veteran and competent veteran dies. the special deposit account must be the surviving spouse meets the (a) Basic entitlement. Amounts received by VA no later than 1 year after definition of marriage in § 5.191, then withheld on a running award of Old- the date of the payee’s death. the continuous cohabitation Law Pension, under the provisions of (2) The claimant must file necessary requirement in § 5.200(b)(3) does not § 3.551(b) of this chapter as in effect evidence in support of the claim no later apply. before the applicability date of this part than 6 months after the date VA (2) The veteran’s surviving children, 5 or under § 5.727, are payable in a requests that evidence. as defined in § 5.220 in equal shares, but lump sum after a competent veteran’s (d) Other restrictions. (1) Payment without regard to their age or marital death, if the amounts were not paid to made under this section is limited to status. the veteran under § 5.730. The lump amounts due on the date of the payee’s (3) The veteran’s parents, as defined sum is payable only to the living person death under decisions existing on the in § 5.238, who on the date of the first listed below: date of the death. veteran’s death were dependent within (1) The veteran’s surviving spouse. If (2) Payment will be made under this the meaning of § 5.300, in equal shares. the marriage between the veteran and section only if both the deceased the surviving spouse meets the beneficiary and the claimant have not (4) If no recipient listed in paragraphs definition of marriage in § 5.191, then been guilty of mutiny, treason, sabotage, (d)(1) through (3) of this section is living the continuous cohabitation or rendering assistance to an enemy of at the time of settlement, the person requirement in § 5.200(b)(3), does not the U.S. or an enemy of any ally of the who bore the expense of the veteran’s apply. U.S. last sickness or burial, but only to the extent necessary to reimburse that (2) The veteran’s surviving children, (Authority: 31 U.S.C. 3329, 3330; 38 U.S.C. person for such expense. as defined in § 5.220 in equal shares, but 5309) (e) Claims for funds governed by this without regard to their age or marital § 5.566 Special rules for payment of all section—(1) Time limit for filing. A status. benefits except insurance payments person eligible for the funds governed (3) The veteran’s parents, as defined deposited in a personal-funds-of-patients by this section must file a claim for the in § 5.238, who on the date of the account when an incompetent veteran dies. funds with VA no later than 5 years veteran’s death were dependent within (a) Purpose. This section provides after the death of the veteran. However, the meaning of § 5.300, in equal shares. rules relating to the disposition of if any person otherwise entitled is under (4) If no recipient listed in paragraphs certain funds on deposit in a personal- legal disability on the date of the (a)(1) through (3) of this section is living funds-of-patients (PFOP) account for a veteran’s death, the 5-year period will at the time of settlement, the person veteran who was incompetent at the run from the date of termination or who bore the expense of the veteran’s date of his or her death and who died removal of the legal disability. last sickness or burial, but only to the after November 30, 1959. (2) Submission of evidence. There is extent necessary to reimburse that (b) Funds included. The funds no time limit for filing evidence of person for such expense. included are those on deposit in the entitlement to the funds governed by (b) Claims for funds governed by this PFOP account on the date of the this section. section—(1) Time limit for filing. A veteran’s death that were derived from (3) Effect of failure to claim funds, or person eligible for the funds governed any benefits except insurance payments waiver of claim, on rights of another by this section must file a claim for the deposited in the account by VA. Funds claimant. (i) If there is a living person funds with VA no later than 5 years derived from such deposits are those with a higher priority, VA will not pay after the death of the veteran. However, that resulted from the VA deposits, even funds governed by this section to any if any person otherwise entitled is under though there may have been an person with a lower priority unless, legal disability on the date of the intervening change in the form of the within 5 years after the veteran’s death, veteran’s death, the 5-year period will asset. For example, if amounts the person with higher priority dies, run from the date of termination or representing any benefits except forfeits entitlement, or otherwise removal of the legal disability. insurance payments deposited by VA becomes disqualified. In such a case, (2) Submission of evidence. There is are withdrawn to purchase bonds on the VA will pay such funds to the person no time limit for filing evidence of

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entitlement to the funds governed by § 3.557(b) of this part (as applicable paragraph (b)(1) of this section. VA will this section. prior to December 27, 2001) because the calculate the amount of the lump-sum (3) Effect of failure to claim funds, or veteran was hospitalized by the U.S. or payment using the Medal of Honor waiver of claim, on rights of another a political subdivision and had an estate pension rates in effect for each year of claimant.—(i) Person with higher which equaled or exceeded the statutory the period for which the retroactive priority. If there is a living person with maximum and the veteran dies before payment is made. a higher priority, VA will not pay funds payment of amounts withheld or not (4) Automatic annual adjustment. VA governed by this section to any person paid because of such care, VA will pay will, effective December 1 of each year, with a lower priority unless, within 5 no part of such amount to any person. increase the monthly Medal of Honor years after the veteran’s death, the (c) Applicability. The provisions of pension by the same percentage by person with a higher priority dies, this section apply to amounts withheld which benefit amounts payable under forfeits entitlement, or otherwise for periods prior to, as well as Title II of the Social Security Act are becomes disqualified. In such a case, subsequent to, the VA’s determination increased effective December 1 of that VA will pay such funds to the person of incompetency. The term ‘‘dies before year. The current and historic rates are next in priority if that person files a payment’’ includes cases in which a located on the Internet at http:// timely claim. check was issued and the veteran died www.va.gov and are available from any (ii) Person within a category of before negotiating the check. VA regional office. potential claimants. If there is a living (c) Medal of Honor pension exempt (Authority: 38 U.S.C. 5503, as in effect prior person within a category of potential to December 27, 2001; Sec. 306, Pub. L. 95– from offset, attachment, or other legal claimants (children, for example), VA 588, 92 Stat. 2497) process. The Medal of Honor pension is will not pay that person’s share of funds paid in addition to all other payments governed by this section to anyone else Cross Reference: § 5.1, for the under laws of the U.S. It is not subject within that category unless, within 5 definition of ‘‘political subdivision of to any attachment, execution, levy, tax years after the veteran’s death, that the U.S.’’ lien, or detention under any process person dies, forfeits entitlement, or §§ 5.569–5.579 [Reserved] whatever. otherwise becomes disqualified. The (d) Only one Medal of Honor pension other potential claimants must file Subpart H—Special and Ancillary is allowed. VA will pay a timely claims. Benefits for Veterans, Dependents, and servicemember or veteran only one (iii) Applicability of paragraph (b)(3). Survivors Medal of Honor pension under this Paragraphs (b)(3)(i) and (ii) of this section, even if the servicemember or section apply even if the ‘‘living Special Benefits for Veterans, veteran is awarded more than one person’’ referred to in those paragraphs Dependents, and Survivors Medal of Honor. fails to file a timely claim or waives § 5.580 Medal of Honor pension. (Authority: 38 U.S.C. 1560, 1561, 1562) rights to funds governed by this section. (c) Lump sum withheld after (a) Placement on the Medal of Honor § 5.581 Awards of benefits based on discharge from institution. The Roll. The Secretaries of the Departments special acts or private laws. provisions of paragraphs (a) and (b) of of the Army, Navy, Air Force, and (a) Special act means an act of this section will apply even in the event Homeland Security determine Congress that authorizes VA to pay of the death of any veteran prior to entitlement to placement on the Medal benefits to a particular person. Special receiving a lump sum that was withheld of Honor Roll and issue certificates acts are also known as private laws. because treatment or care was setting forth the right to receive Medal (b) Claim must be filed. VA will grant terminated against medical advice or as of Honor pension. VA will pay the benefits based on a special act only to the result of disciplinary action. Medal of Honor pension after the a person who files a claim based on the (d) VA benefit checks not negotiated Secretary concerned delivers VA a special act, unless the person: by a deceased payee. The provisions of certified copy of the certificate. (1) Is currently receiving benefits; or paragraphs (a) and (b) of this section (b) Amount and effective date of (2) Has a pending claim for any will apply even in cases in which a Medal of Honor pension and benefit at the time that the special act check was issued and the veteran died entitlement to a retroactive lump-sum becomes effective. before negotiating the check. payment—(1) Effective date of monthly (c) Special acts relating to military pension. The effective date of monthly service—(1) Change to character of (Authority: Sec. 306, Pub. L. 95–588, 92 Stat. payment of a Medal of Honor pension 2497) discharge or release. If a special act is the date the service department corrects the character of discharge or § 5.568 Non-payment of certain benefits concerned received the servicemember’s release from military service and does upon death of an incompetent veteran. or veteran’s form requesting placement not grant pension or disability (a) Old-Law Pension. If an award of on the Medal of Honor Roll. compensation directly, the claimant Old-Law Pension for an incompetent (2) Monthly rate. VA will pay a Medal acquires veteran status and may apply veteran was reduced under § 3.551(b) of of Honor pension at the rate specified in for and be granted benefits. this chapter as in effect before the 38 U.S.C. 1562, as adjusted under (2) Special act as conclusive proof of applicability date of this part 5 or paragraph (c)(4) of this section. service. For VA purposes, a special act § 5.727, and the veteran dies before (3) Retroactive lump-sum payment. that states a veteran’s service began on payment of amounts withheld or not VA will pay to each servicemember or a particular date or dates and that the paid, no part of such amount will be veteran who receives a Medal of Honor veteran was discharged under paid to any person. pension, a retroactive lump-sum conditions other than dishonorable on a (b) Award of disability pension, payment for the period beginning the particular date is conclusive proof of disability compensation, or emergency first day of the month after the date of such service. officers’ retired pay. If VA discontinued the event for which the veteran earned (d) Rate, effective date, and duration an award of disability pension, the Medal of Honor, and ending on the of benefit. (1) VA will apply the rate, disability compensation, or emergency last day of the month before the month effective date, and discontinuance date officers’ retired pay under former in which the pension commenced under specified in a special act, except as

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provided in paragraph (e) of this § 5.583 Special allowance under 38 U.S.C. § 5.584 Loan guaranty for a surviving section. 1312. spouse: eligibility requirements. (2) When a special act does not (a) Allowance payable. This section VA will provide a certification of loan provide the effective date VA will applies to VA payment of a special guaranty benefits to a surviving spouse determine the effective date according allowance to the surviving dependent of based on a claim filed after December to § 5.152. a veteran who: 31, 1958, if all of the following (e) Changes in rates—(1) Hospital (1) Served after September 15, 1940; conditions are met: care. VA will adjust pension payable (2) Died after December 31, 1956, as (a) The veteran served in the Armed under a special act, pursuant to §§ 5.720 a result of such service; and Forces of the U.S. (Allied Nations are through 5.723, 5.726, and 5.728 (3) Was not a fully and currently not included) at any time after (reduction of payments based on insured person under title II of the September 15, 1940; hospital, domiciliary, or nursing home Social Security Act. (b)(1) The veteran died in service; or (b) Allowance not payable. The care), unless the special act expressly (2) The veteran died after separation special allowance is not payable: prohibits such reduction. (1) Where the veteran’s death is not from service and the separation was (2) Incarceration and fugitive felon. service connected but is treated ‘‘as if’’ under conditions other than VA will adjust disability compensation it were service connected under the dishonorable, provided the veteran’s and pension payable under a special act, provisions of 38 U.S.C. 1151. See death was the result of injury or disease pursuant to §§ 5.810 through 5.815, and § 5.510(b)(2) and (3); or incurred in or aggravated by service in 5.817 (reduction of payments during (2) Where the veteran’s death was due the line of duty rendered after incarceration or suspension of payments to service in the Commonwealth Army September 15, 1940, regardless of the while a fugitive felon), unless the of the Philippines while such forces date of entrance into such service (cases special act expressly prohibits such were in the service of the Armed Forces where the veteran’s death is not service reduction. pursuant to the military order of the connected but is treated ‘‘as if’’ it were (f) Prohibition against duplicate President dated July 26, 1941, or in the service connected, under 38 U.S.C. awards. When pension or disability New Philippine Scouts under sec. 14 of 1318, or where disability compensation compensation is authorized by a special Public Law 79–190, 59 Stat. 543. is payable because of death resulting act, VA will not pay any other pension (c) Claims for special allowance. A from hospitalization, treatment, or disability compensation to the extent claim for dependency and indemnity examination, or training, under 38 such awards would be duplicative compensation will be accepted as a U.S.C. 1151, are not included); under 38 U.S.C. 5304, unless the payee claim for the special allowance where (c) The surviving spouse meets the makes an election or unless the special VA determines that the special requirements of the term ‘‘surviving act expressly authorizes VA to do so. allowance is payable or where VA spouse’’ as outlined in § 5.200(a); See §§ 5.24(c)(3), 5.464, 5.746, 5.747, receives a specific inquiry concerning (d) The surviving spouse is unmarried 5.756, 5.761, and 5.762. entitlement to the special allowance. or remarried after reaching age 57; and (Authority: 38 U.S.C. 501(a), 1505, 5313, (d) Certification by the Social Security (e) The surviving spouse is not 5313B, 5503) Administration. Payment of this special eligible for a loan guaranty certification allowance will be authorized on the as a veteran in his or her own right. § 5.582 Naval pension. basis of a certification from the Social (Authority: 38 U.S.C. 3701(b)(2)) (a) Certification. VA will pay naval Security Administration, after VA pension if the Secretary of the Navy receives a claim. Award actions § 5.585 Certification for death gratuity. certifies that the person is entitled to the subsequent to the original award, Section 1476, title 10 United States pension. including adjustment and Code authorizes a service department to (b) Concurrent receipt of awards in discontinuance, will be made in pay a death gratuity for death of a effect before July 14, 1943. Awards of accordance with new certifications from servicemember after discharge or release naval pension in effect before July 14, the Social Security Administration. from training. Entitlement to the death 1943, or renewed or continued awards (e) Special allowance payable on gratuity is contingent upon the findings may be paid concurrently with VA death. (1) The special allowance will be in this section, certified by the Secretary pension or disability compensation; payable only if the death occurred: of Veterans Affairs to the Secretaries of however, naval pension allowance (i) While on active duty, active duty the Departments of the Army, Navy, Air under 10 U.S.C. 6160 may not exceed for training, or inactive duty training as Force, or Homeland Security. one-fourth of the rate of VA pension or a member of a uniformed service (a) Certification by VA to the disability compensation otherwise (regardless of whether the death Secretary concerned. If VA determines, payable, exclusive of additional occurred in the line of duty); or either on the basis of a claim for benefits allowances for dependents or specific (ii) As the result of a service- or at the request of the Secretary disabilities. connected disability incurred after concerned, that a death occurred under (c) No concurrent receipt of awards September 15, 1940. the following circumstances, VA will initially made after July 13, 1943. Naval (2) Where the veteran died after certify to the Secretary concerned: pension initially awarded after July 13, separation from service: (1) The veteran died after December (i) Discharge from service must have 1943, may not be paid concurrently 31, 1956; been under conditions other than with VA pension or disability (2) The veteran died during the 120- dishonorable, as outlined in § 5.30; and compensation. day period that began on the day after (d) Naval pension not payable as (ii) Line of duty and service connection will be determined as the day of his or her discharge or release accrued benefit. Naval pension from duty as described in 10 U.S.C. remaining unpaid at the date of the outlined in Subpart K, Matters Affecting the Receipt of Benefits, of this part. 1476; veteran’s death is not payable by VA as (3) Death resulted from injury or an accrued benefit. (Authority: 38 U.S.C. 107, 1312) disease incurred or aggravated while on (Authority: 10 U.S.C. 1414, 6160; 38 U.S.C. Cross Reference: § 5.1, for the such duty, or travel to or from such 5304) definition of ‘‘uniformed services’’. duty; and

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(4) The veteran was discharged or Survivors’ Pension Improvement Act of Department of Health and Human released from such service under 1978; and Services, or the Department of conditions other than dishonorable. (3) Whose annual income, as Commerce determines that a minimum (b) VA law applies. VA will apply the determined in establishing pension income annuitant also is entitled to the standards, criteria, and procedures for eligibility, is less than the maximum gratuitous annuity authorized by Public determining the incurrence or annual rate of pension in effect under 38 Law 100–456, 102 Stat. 1918, as aggravation of an injury or disease U.S.C. 1541(b). amended, which is payable to certain under paragraph (a) of this section (b) Calculation of the minimum surviving spouses of servicemembers under the disability compensation laws income annuity payment—(1) Annual who died before November 1, 1953, and administered by VA, except that there is income. VA will determine a were entitled to retired or retainer pay no requirement under this section that beneficiary’s annual income for on the date of death, VA will combine any incurrence or aggravation was in the minimum income annuity purposes the payment of the gratuitous annuity line of duty. under the provisions of §§ 5.370, 5.410 with the minimum income annuity (Authority: 10 U.S.C. 1476; 38 U.S.C. 1323) through 5.413, and 5.423 for payment. beneficiaries receiving Improved (e) Discontinuance. Other than as § 5.586 Certification for dependents’ Pension, or under §§ 5.472 through provided in paragraph (c) of this educational assistance. 5.474 for beneficiaries receiving Old- section, if a beneficiary receiving the (a) Eligibility for dependents’ Law Pension or Section 306 Pension, minimum income annuity becomes educational assistance (DEA). DEA is an except that VA will exclude the amount ineligible for pension, VA will education benefit, payable to a veteran’s of the minimum income annuity from discontinue the minimum income spouse, surviving spouse, or child, that the calculation. annuity effective the same date. VA is authorized to provide for certain (2) Determining rate of annuity for a person entitled to Improved Pension. (Authority: Sec. 4, Pub. L. 92–425, 86 Stat. classes, licenses, or certifications. See 706, 712, as amended (10 U.S.C. 1448 note); §§ 21.3020 through 21.3344 of this VA will determine the minimum Sec. 653, Pub. L. 100–456, 102 Stat. 1918, chapter. In addition to paragraphs (b) income annuity payment for a 1991, as amended (10 U.S.C. 1448 note)) through (d) of this section, § 21.3021 of beneficiary entitled to Improved this chapter will be applied in a Pension by subtracting the annual § 5.588 Special allowance payable under section 156 of Public Law 97–377. determination of eligibility for DEA. For income for minimum income annuity purposes of this section, the term child purposes from the maximum annual A surviving spouse or child of a means a veteran’s child who meets the pension rate under 38 U.S.C. 1541(b). veteran who either died on active duty requirements of § 5.220, except as to age (3) Determining rate of annuity for a before August 13, 1981, or died as a and marital status. person entitled to Old-Law Pension and result of a service-connected disability (b) Service connection. The standards Section 306 Pension. VA will determine that was incurred or aggravated before and criteria for determining service the minimum income annuity payment August 13, 1981, may be entitled to connection, either direct or for a beneficiary receiving Old-Law receive a special allowance to replace presumptive, are those applicable to the Pension and Section 306 Pension by social security benefits that were period of service during which the reducing the maximum annual pension reduced or discontinued by the disability was incurred or aggravated. rate under 38 U.S.C. 1541(b) by the Omnibus Budget Reconciliation Act of (c) Disabilities treated as if service amount of the Retired Servicemen’s 1981. connected—(1) Paired organs or Family Protection Plan benefit, if any, (a) Eligibility requirements.—(1) extremities. For purposes of eligibility that the beneficiary receives and Determination on how death occurred. for DEA, a ‘‘service-connected subtracting from that amount the annual VA must first determine that the person disability’’ includes a disability treated income for minimum income annuity on whose earnings record the claim is as if service connected under § 5.282. purposes. based either died on active duty before (2) Disability due to hospitalization, (4) Recalculation. VA will recalculate August 13, 1981, or died as a result of etc. For purposes of eligibility for DEA, the monthly minimum income annuity a service-connected disability that was a ‘‘service-connected disability’’ does payment whenever there is a change to incurred or aggravated before August 13, not include a disability treated as if the maximum annual rate of pension in 1981. For purposes of this service connected under § 5.350. effect under 38 U.S.C. 1541(b), and determination, character of discharge is not a factor for consideration and death (Authority: 38 U.S.C. 3501(a)) whenever there is a change in the beneficiary’s income. on active duty after August 12, 1981, is § 5.587 Minimum income annuity and (c) Exception as to the requirement of qualifying provided that the death gratuitous annuity. pension eligibility. A person otherwise resulted from a service-connected (a) Eligibility for minimum income eligible for pension under subchapter III disability that was incurred or annuity. The minimum income annuity of 38 U.S.C. chapter 15, or section 306 aggravated before August 13, 1981. authorized by Public Law 92–425, 86 of the Veterans’ and Survivors’ Pension (2) Determination under Public Law Stat. 706, as amended, is payable to a Improvement Act of 1978, will still be 97–377. Once a favorable determination person: considered eligible for pension for has been made under paragraph (a)(1) of (1) Who the Department of Defense, purposes of determining eligibility for this section, VA will make the Department of Homeland Security, the minimum income annuity, even determinations as to the age, the Department of Health and Human though no amount of pension is payable relationship, and school-attendance Services, or the Department of after adding the minimum income requirements contained in paragraphs Commerce has determined meets the annuity, authorized under Public Law (a)(1) and (b)(1) of sec. 156 of Public eligibility criteria of sec. 4(a) of Public 92–425, 86 Stat. 706, as amended, to any Law 97–377, 96 Stat. 1920. In making Law 92–425, 86 Stat. 712, as amended, other countable income. these eligibility determinations, VA will other than sec. 4(a)(1) and (2); (d) Concurrent receipt of gratuitous apply the provisions of the Social (2) Who is eligible for pension under annuity under Public Law 100–456. If Security Act, and any regulations subchapter III of 38 U.S.C. chapter 15, the Department of Defense or the promulgated pursuant thereto, as in or section 306 of the Veterans’ and Department of Homeland Security, the effect during the claimant’s period of

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eligibility. Unless otherwise provided in of this special allowance to conform § 5.589 Monetary allowance for a Vietnam this section, when issues are raised with evidence indicating a change in veteran or a veteran with covered service in concerning eligibility or entitlement to basic eligibility, any basic entitlement Korea whose child was born with spina this special allowance that VA cannot rate, or any effective date previously bifida. appropriately resolve under the determined. It is the claimant’s (a) Monthly monetary allowance. VA provisions of the Social Security Act, or responsibility to promptly notify VA of will pay a monthly monetary allowance the regulations promulgated pursuant to any change in his or her status or under subchapter I of 38 U.S.C. chapter the Social Security Act, the provisions employment that affects eligibility or 18, based upon the level of disability as of title 38, Code of Federal Regulations, entitlement. determined under paragraph (d) of this are applicable. (6) Rounding of monthly rates. Any section, to or for a person who VA has (b) Calculation of payment rate—(1) monthly rate calculated under the determined to be a person suffering Basic entitlement rate. A basic provisions of this paragraph (b), if not from spina bifida whose biological entitlement rate will be calculated for a multiple of $1, will be rounded to the mother or father is or was a Vietnam each eligible claimant in accordance next lower multiple of $1. veteran or a veteran with covered with the provisions of paragraphs (a)(2) (c) Claimant not entitled to this service in Korea. A person suffering and (b)(2) of sec. 156 of Public Law 97– special allowance. The following from spina bifida is entitled to only one 377, 96 Stat. 1920, using data to be persons are not entitled to this special monthly allowance under this section, provided by the Social Security allowance for the reasons indicated: even if each of the person’s biological Administration. This basic entitlement (1) A claimant eligible for death parents is or was Vietnam veterans or rate will then be used to calculate the benefits under 38 U.S.C. 1151. The veterans with covered service in Korea. monthly payment rate as described in death in such a case is not service Whenever there is a cost-of-living paragraphs (b)(2) through (6) of this connected. increase in benefit amounts payable section. (2) A claimant eligible for death under section 215(i) of Title II of the (2) Original or reopened awards to a benefits under 38 U.S.C. 1318. The Social Security Act, VA will, effective surviving spouse. The monthly payment death in such a case is not service on the dates such increases become rate will be equal to the basic connected. effective, increase by the same entitlement rate increased by the overall (3) A claimant whose claim is based percentage the monthly allowance rates average percentage (rounded to the on a person’s service in: under 38 U.S.C. chapter 18. (i) The Commonwealth Army of the nearest tenth of a percent) of each (b) No effect on other VA benefits. Philippines while such forces were in legislative increase in dependency and Receipt of a monetary allowance under the service of the Armed Forces indemnity compensation rates under 38 38 U.S.C. chapter 18 will not affect the pursuant to the military order of the U.S.C. 1311 which became effective right of the person, or the right of any concurrently with or subsequent to the President dated July 26, 1941, including claimant or beneficiary, to receive any effective date of the earliest adjustment recognized guerrilla forces (see 38 other benefit to which he or she may be under section 215(i) of the Social U.S.C. 107); entitled under any law administered by Security Act that was disregarded in (ii) The New Philippine Scouts under VA. computing the basic entitlement rate. sec. 14 of Public Law 79–190, 59 Stat. (3) Original and reopened awards to 543 (see 38 U.S.C. 107); (c) Definitions—(1) Vietnam veteran. a child. The monthly payment rate will (iii) The commissioned corps of the For purposes of this section, the term be equal to the basic entitlement rate Public Health Service (specifically Vietnam veteran means a person who increased by the overall average excluded by sec. 156, Public Law 97– performed active military service in the percentage (rounded to the nearest tenth 377, 96 Stat. 1920); or Republic of Vietnam during the period of a percent) of each legislative increase (iv) The National Oceanic and beginning on January 9, 1962, and in the rates of educational assistance Atmospheric Administration ending on May 7, 1975, without regard allowance under 38 U.S.C. 3531(b) (specifically excluded by sec. 156, to the person’s character of discharge. which became effective concurrently Public Law 97–377, 96 Stat. 1920). For the definition of ‘‘service in the with or subsequent to the effective date (d) Appellate jurisdiction. VA has Republic of Vietnam,’’ see § 5.262(a)(1). of the earliest adjustment under section appellate jurisdiction of all (2) Veteran with covered service in 215(i) of the Social Security Act that determinations made in connection Korea. For purposes of this section, the was disregarded in computing the basic with this special allowance. term veteran with covered service in entitlement rate. (e) Claims. A claimant for this special Korea means a person who served in the (4) Subsequent legislative increases in allowance must file an application. If active military service in or near the rates. The monthly rate of the special VA receives an informal communication Korean Demilitarized Zone (‘‘DMZ’’) allowance payable to a surviving spouse from a claimant about this special between September 1, 1967, and August will be increased by the same overall allowance, VA will forward an 31, 1971, and who is determined by VA, average percentage increase (rounded to application to the claimant. in consultation with the Department of the nearest tenth of a percent) and on (f) Retroactivity and effective dates. Defense, to have been exposed to an the same effective date as any legislative There is no time limit for filing a claim herbicide agent during such service. increase in the rates payable under 38 for this special allowance. Upon the Exposure to an herbicide agent will be U.S.C. 1311. The monthly rate of the filing of a claim, the effective date of an conceded if the veteran served between special allowance payable to a child award or increased award of benefits April 1, 1968, and August 31, 1971, in will be increased by the same overall begins on or after the first day of the a unit that, as determined by the average percentage increase (rounded to month in which the claimant first Department of Defense, operated in or the nearest tenth of a percent) and on became eligible for this special near the Korean DMZ in an area in the same effective date as any legislative allowance, except that no payment may which herbicides are known to have increase in the rates payable under 38 be made for any period before January been applied during that period, unless U.S.C. 3531(b). 1, 1983. there is affirmative evidence to establish (5) Amendment of awards. Prompt (Authority: Sec. 156, Pub. L. 97–377, 96 Stat. that the veteran was not exposed to any action will be taken to amend any award 1920) such agent during that service.

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(3) Person. For purposes of this himself or herself, and performing self without good cause, for a scheduled section, the term person means a care; examination. Examples of good cause person, regardless of age or marital (C) Has an IQ of 69 or less; include, but are not limited to, the status, whose biological father or mother (D) Despite the use of medication or illness or hospitalization of the is or was a Vietnam veteran or a veteran other means to control the effects of claimant, death of an immediate family with covered service in Korea and who urinary bladder impairment, at least member, etc. was conceived after the date on which three times per week is unable to remain (5) Person under age of 1 year. VA the veteran first served in the Republic dry for 3 hours at a time during waking will pay a person under the age of 1 year of Vietnam during the Vietnam era or hours; at Level I unless a pediatric neurologist had covered service in Korea. (E) Despite bowel management or a pediatric neurosurgeon certifies Notwithstanding the provisions of techniques or other treatment to control that, in his or her medical judgment, § 5.181(b), VA will require the types of the effects of bowel impairment, has there is a neurological deficit that will evidence specified in §§ 5.221 and 5.229 fecal leakage severe or frequent enough prevent the person from ambulating, to establish that a person is the to require wearing of absorbent grasping a pen, feeding himself or biological son or daughter of a Vietnam materials at least 4 days a week; herself, performing self care, or veteran or a veteran with covered (F) Regularly requires manual achieving urinary or fecal continence. If evacuation or digital stimulation to service in Korea. any of those deficits are present, VA (4) Spina bifida. For purposes of this empty the bowel; or will pay the person at Level III. In either (G) Has a colostomy that requires section, the term spina bifida means any case, VA will reassess the level of wearing a bag. form and manifestation of spina bifida disability when the person reaches the (2) Ratings by Director of the age of 1 year. except spina bifida occulta. Compensation Service. If a person who (d) Disability ratings. (1) Determining (6) Reassessment of level of payment. would otherwise be paid at Level I or II the level of payment. Except as VA will reassess the level of payment has one or more disabilities, such as otherwise specified in this paragraph whenever VA receives medical evidence blindness, uncontrolled seizures, or (d), VA will determine the level of indicating that a change is warranted. renal failure that result either from payment as follows: For a person between the ages of 1 and (i) Level I. The person walks without spina bifida, or from treatment 21, however, VA must reassess the level braces or other external support as his procedures for spina bifida, the Director of payment at least every 5 years. or her primary means of mobility in the of the Compensation Service may (e) Effective dates. See § 5.591. community, has no sensory or motor increase the monthly payment to the level that, in his or her judgment, best (Authority: 38 U.S.C. 501(a), 1805, 1811, impairment of the upper extremities, 1812, 1821, 1832–1834, 5101) has an IQ of 90 or higher, and is represents the extent to which the continent of urine and feces without the disabilities resulting from spina bifida § 5.590 Monetary allowance for a female limit the person’s ability to engage in Vietnam veteran’s child with certain birth use of medication or other means to defects. control incontinence. ordinary day-to-day activities, (a) Monthly monetary allowance—(1) (ii) Level II. Provided that none of the including, but not limited to, activities General rule. VA will pay a monthly disabilities is severe enough to warrant outside his or her residence. A Level II monetary allowance under subchapter II payment at Level III, and the person: or Level III payment will be awarded (A) Walks with braces or other depending on whether the effects of a of 38 U.S.C. chapter 18 to or for a person external support as his or her primary disability are of equivalent severity to whose biological mother is or was a means of mobility in the community; the effects specified under Level II or Vietnam veteran and who VA has (B) Has sensory or motor impairment Level III. determined to have a disability resulting of the upper extremities, but is able to (3) Statements from private from one or more covered birth defects. grasp a pen, feed himself or herself, and physicians, or government or private Except as provided in paragraph (a)(3) perform self care; institutions. VA may accept statements of this section, the amount of the (C) Has an IQ of at least 70 but less from private physicians, or examination monetary allowance paid will be based than 90; reports from government or private upon the level of such disability (D) Requires medication or other institutions, for purpose of rating spina suffered by the person, as determined in means to control the effects of urinary bifida claims without further accordance with the provisions of bladder impairment and no more than examination, provided the statements or paragraph (e) of this section. Whenever two times per week is unable to remain reports are adequate for assessing the there is a cost-of-living increase in dry for at least 3 hours at a time during level of disability due to spina bifida benefit amounts payable under section waking hours; under the provisions of paragraph (d)(1) 215(i) of Title II of the Social Security (E) Requires bowel management of this section. In the absence of Act, VA will, effective on the dates such techniques or other treatment to control adequate medical information, VA will increases become effective, increase by the effects of bowel impairment, but schedule an examination for purpose of the same percentage the monthly does not have fecal leakage severe or assessing the level of disability. allowance rates under 38 U.S.C. chapter frequent enough to require wearing of (4) Medical evidence. VA will pay a 18. absorbent materials at least 4 days a person eligible for a monetary allowance (2) Affirmative evidence of cause week; or due to spina bifida at Level I unless or other than mother’s service during (F) Has a colostomy that does not until VA receives medical evidence Vietnam era. No monetary allowance require wearing a bag. supporting a higher payment. When will be provided under this section (iii) Level III. required to reassess the level of based on a particular birth defect of a (A) The person uses a wheelchair as disability under paragraph (d)(5) or (6) person in any case where affirmative his or her primary means of mobility in of this section, VA will pay a person evidence establishes that the birth the community; eligible for this monetary allowance at defect results from a cause other than (B) Has sensory or motor impairment Level I in the absence of evidence the active military service of the of the upper extremities severe enough adequate to support a higher level of person’s mother during the Vietnam era to prevent grasping a pen, feeding disability or if the person fails to report, and, in determining the level of

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disability for a person with more than with the service of women Vietnam (xv) Phenylketonuria; one birth defect, the particular defect veterans in the Republic of Vietnam (xvi) Sickle cell disease; resulting from other causes will be during the period beginning on (xvii) Tay-Sachs disease; excluded from consideration. This will February 28, 1961, and ending on May (xviii) Thalassemia; and not prevent VA from paying a monetary 7, 1975, and that resulted, or may result, (xix) Wilson’s disease. allowance under this section for other in permanent physical or mental (3) Congenital malignant neoplasms. birth defects. disability. However, the term ‘‘covered Conditions that are congenital (3) Nonduplication; spina bifida. In birth defect’’ does not include a malignant neoplasms are not covered the case of a person whose only covered condition due to a: birth defects. These include, but are not birth defect is spina bifida, a monetary (i) Familial disorder; limited to, the following conditions: allowance will be paid under § 5.589, (ii) Birth-related injury; or (i) Medulloblastoma; not under this section, and the person (iii) Fetal or neonatal infirmity with (ii) Neuroblastoma; will not be rated for disability under well-established causes. (iii) Retinoblastoma; this section. In the case of a person who (d) Identification of covered birth (iv) Teratoma; and has spina bifida and one or more defects. All birth defects that are not (v) Wilm’s tumor. additional covered birth defects, a excluded under the provisions of this (4) Chromosomal disorders. monetary allowance will be paid under paragraph (d) are covered birth defects. Conditions that are chromosomal this section, and the amount of the (1) Covered birth defects. Covered disorders are not covered birth defects. monetary allowance will be not less birth defects include, but are not limited These include, but are not limited to, than the amount the person would to, the following conditions (however, if the following conditions: receive if his or her only covered birth a birth defect is determined to be (i) Down syndrome and other defect were spina bifida. If, but for the familial in a particular family, it will not Trisomies; person’s one or more additional covered be a covered birth defect): (ii) Fragile X syndrome; birth defects, the monetary allowance (i) Achondroplasia; (iii) Klinefelter’s syndrome; and payable to or for the person would be (ii) Cleft lip and cleft palate; (iv) Turner’s syndrome. based on a rating at Level I, II, or III (iii) Congenital heart disease; (5) Birth-related injury. Conditions under § 5.589(d), then the rating of the (iv) Congenital talipes equinovarus that are due to a birth-related injury are person’s level of disability under (clubfoot); not covered birth defects. These paragraph (e) of this section will be not (v) Esophageal and intestinal atresia; include, but are not limited to, the less than Level II, III, or IV, respectively. (vi) Hallerman-Streiff syndrome; following conditions: (b) No effect on other VA benefits. (vii) Hip dysplasia; (i) Brain damage due to anoxia during Except as provided in paragraph (a)(3) (viii) Hirschprung’s disease or around time of birth; of this section, receipt of a monetary (congenital megacolon); (ii) Cerebral palsy due to birth trauma, allowance under 38 U.S.C. chapter 18 (ix) Hydrocephalus due to aqueductal (iii) Facial nerve palsy or other will not affect the right of the person, or stenosis; peripheral nerve injury; the right of any claimant or beneficiary, (x) Hypospadias; (iv) Fractured clavicle; and to receive any other benefit to which he (xi) Imperforate anus; (v) Horner’s syndrome due to forceful or she may be entitled under any law (xii) Neural tube defects (including, manipulation during birth. administered by VA. but not limited to, spina bifida, (6) Fetal or neonatal infirmity. (c) Definitions—(1) Vietnam veteran. encephalocele, and anencephaly); Conditions that are due to a fetal or For purposes of this section, the term (xiii) Poland syndrome; neonatal infirmity with well-established Vietnam veteran means a person who (xiv) Pyloric stenosis; causes or that are miscellaneous performed active military service in the (xv) Syndactyly (fused digits); pediatric conditions are not covered Republic of Vietnam during the period (xvi) Tracheoesophageal fistula; birth defects. These include, but are not beginning on February 28, 1961, and (xvii) Undescended testicle; and limited to, the following conditions: ending on May 7, 1975, without regard (xviii) Williams syndrome. (i) Asthma and other allergies; to the characterization of the person’s (2) Familial disorders. Birth defects (ii) Effects of maternal infection service. For the definition of ‘‘service in that are familial disorders, including, during pregnancy, including, but not the Republic of Vietnam,’’ see but not limited to, hereditary genetic limited to, maternal rubella, § 5.262(a)(1). conditions, are not covered birth toxoplasmosis, or syphilis; (2) Person. For purposes of this defects. Familial disorders include, but (iii) Fetal alcohol syndrome or fetal section, the term person means a are not limited to, the following effects of maternal drug use; person, regardless of age or marital conditions, unless the birth defect is not (iv) Hyaline membrane disease; status, whose biological mother is or familial in a particular family: (v) Maternal-infant blood was a Vietnam veteran and who was (i) Albinism; incompatibility; conceived after the date on which the (ii) Alpha-antitrypsin deficiency; (vi) Neonatal infections; veteran first entered the Republic of (iii) Crouzon syndrome; (vii) Neonatal jaundice; Vietnam during the period beginning on (iv) Cystic fibrosis; (viii) Post-infancy deafness/hearing February 28, 1961, and ending on May (v) Duchenne’s muscular dystrophy; impairment (onset after the age of 1 7, 1975. Notwithstanding the provisions (vi) Galactosemia; year); of § 5.181(b), VA will require the types (vii) Hemophilia; (ix) Prematurity; and of evidence specified in §§ 5.221 and (viii) Huntington’s disease; (x) Refractive disorders of the eye. 5.229 sufficient to establish that a (ix) Hurler syndrome; (7) Developmental disorders. person is the biological son or daughter (x) Kartagener’s syndrome (Primary Conditions that are developmental of a Vietnam veteran. Ciliary Dyskinesia); disorders are not covered birth defects. (3) Covered birth defect. For purposes (xi) Marfan syndrome; These include, but are not limited to, of this section, the term covered birth (xii) Neurofibromatosis; the following disorders: defect means any birth defect identified (xiii) Osteogenesis imperfecta; (i) Attention deficit disorder; by VA as a birth defect that is associated (xiv) Pectus excavatum; (ii) Autism;

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(iii) Epilepsy diagnosed after infancy personal hygiene, and communication, (vii) Memory; (after the age of 1 year); behavior, social interaction, and (viii) Ability to concentrate; (iv) Learning disorders; and intellectual functioning are appropriate (ix) Appropriateness of behavior; and (v) Mental retardation (unless part of for his or her age; or (x) Urinary and fecal continence. a syndrome that is a covered birth (B) The person has disfigurement or (f) Information for determining defect). scarring of the head, face, or neck with whether a person has a covered birth (8) Non-permanent physical or mental either gross distortion or gross defect and rating disability levels.—(1) disabilities. Conditions that do not asymmetry of one facial feature or one Medical evidence. VA may accept result in permanent physical or mental paired set of facial features including, statements from private physicians or disability are not covered birth defects. but not limited to, the nose, chin, examination reports from government or These include, but are not limited to, forehead, eyes, eyelids, ears (auricles), private institutions for purposes of the following conditions: cheeks, or lips. determining whether a person has a (i) Conditions rendered non-disabling (iv) Level III. The person meets one or covered birth defect and for rating through treatment; more of the following criteria: claims for covered birth defects. If they (ii) Congenital heart problems (A) The person has residual physical are adequate for such purposes, VA may surgically corrected or resolved without or mental effects that frequently or make the determination and rating disabling residuals; constantly limit or prevent most daily without further examination. In the (iii) Heart murmurs unassociated with activities, but the person is able to absence of adequate information, VA a diagnosed cardiac abnormality; provide age-appropriate self-care, such may schedule examinations to (iv) Hemangiomas that have resolved as eating, dressing, grooming, and determine whether a person has a with or without treatment; and carrying out personal hygiene; covered birth defect or to assess the (B) The person is unable to work or (v) Scars (other than of the head, face, level of disability. attend school, travel, or carry out or neck) as the only residual of (2) Monthly monetary allowance for household chores, or does so corrective surgery for birth defects. those with a covered birth defect. Except (e) Disability ratings. Whenever VA intermittently and with difficulty; as paragraph (a)(3) of this section determines, upon receipt of competent (C) The person’s communication, provides, VA will pay a monthly medical evidence, that a person has one behavior, social interaction, and monetary allowance if VA is able to or more covered birth defects, VA will intellectual functioning are not entirely obtain medical evidence adequate to also determine the level of disability appropriate for his or her age; or determine that a person has a covered currently resulting from the covered (D) The person has disfigurement or birth defect and adequate to assess the birth defects combined with any scarring of the head, face, or neck with level of disability due to covered birth associated disabilities. No monetary either gross distortion or gross defects. allowance will be payable under this asymmetry of two facial features or two (g) Redeterminations. VA will reassess section if VA determines under this paired sets of facial features including, a determination under this section paragraph (e) that a person has no but not limited to, the nose, chin, whenever VA receives evidence current disability resulting from the forehead, eyes, eyelids, ears (auricles), indicating that a change is warranted. covered birth defects, unless VA cheeks, or lips. (h) Referrals. If an agency of original determines that the provisions of (v) Level IV. The person meets one or jurisdiction is unclear in any case as to paragraph (a)(3) of this section apply. more of the following criteria: (A) The person has residual physical whether a condition is a covered birth Except as otherwise provided in or mental effects preventing age- defect, it may refer the issue to the paragraph (a)(3) of this section, VA will appropriate self-care, such as eating, Director of the Compensation Service determine the level of disability as dressing, grooming, and carrying out for determination. follows: (i) Effective dates. See § 5.591. (1) Levels of disability—(i) Level 0. personal hygiene; (B) The person’s communication, The person has no current disability (Authority: 38 U.S.C. 501(a), 1811–1816, behavior, social interaction, and resulting from covered birth defects. 1821, 1832–1834, 5101) intellectual functioning are grossly (ii) Level I. The person meets one or inappropriate for his or her age; or Cross Reference: § 5.1, for the more of the following criteria: (C) The person has disfigurement or definition of ‘‘competent evidence’’. (A) The person has residual physical scarring of the head, face, or neck with § 5.591 Effective date of award for a or mental effects that only occasionally either gross distortion or gross or intermittently limit or prevent some disabled child of a Vietnam veteran or a asymmetry of three facial features or veteran with covered service in Korea. daily activities; or three paired sets of facial features (B) The person has disfigurement or This section provides the effective including, but not limited to, the nose, scarring of the head, face, or neck date of an award, reduction, or chin, forehead, eyes, eyelids, ears without gross distortion or gross discontinuance of the monthly (auricles), cheeks, or lips. monetary allowance payable under asymmetry of any facial feature (2) Assessing limitation of daily § 5.589 to a Vietnam veteran or a veteran including, but not limited to, the nose, activities. Physical or mental effects on with covered service in Korea whose chin, forehead, eyes, eyelids, ears the following functions are to be biological child is suffering from spina (auricles), cheeks, or lips. considered in assessing limitation of bifida or under § 5.590 to a female (iii) Level II. The person meets one or daily activities: more of the following criteria: (i) Mobility (ability to stand and walk, Vietnam veteran’s biological child who (A) The person has residual physical including, but not limited to, balance suffers from one or more covered birth or mental effects that frequently or and coordination); defects. constantly limit or prevent some daily (ii) Manual dexterity; (a) Effective date of award. An award activities, but the person is able to work (iii) Stamina; of a monetary allowance based on an or attend school, carry out most (iv) Speech; original claim, a claim reopened after household chores, travel, and provide (v) Hearing; final denial, or a claim for increase will age-appropriate self-care, such as eating, (vi) Vision (other than correctable be effective the date VA received the dressing, grooming, and carrying out refraction errors); claim or the date entitlement arose,

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whichever is later, subject to the § 5.592 Awards under Nehmer Court such claim was received by VA or the following rules: orders for disability or death caused by a date the disability arose, except as condition presumptively associated with provided in paragraph (c)(3) of this (1) An allowance payable under herbicide exposure. § 5.589 will not be effective before section. A claim will be considered a (a) Purpose. This section states claim for disability compensation for a October 1, 1997; effective-date rules required by orders of particular covered herbicide disease if: (2) An allowance payable under a U.S. district court in the class-action (i) The claimant’s application and § 5.590 will not be effective before case of Nehmer v. U.S. Dep’t of Veterans other supporting statements and December 1, 2001; Affairs, 712 F. Supp. 1404 (N.D. Cal. submissions may reasonably be viewed, (3) Subject to paragraphs (a)(1) and (2) 1989). under the standards ordinarily (b) Definitions. For purposes of this of this section, the effective date will be governing disability compensation section: the child’s date of birth, if VA received claims, as indicating an intent to apply (1) Nehmer class member means: for disability compensation for the the claim no later than 1 year after the (i) A Vietnam veteran who has a birth date; covered herbicide disability; or covered herbicide disease; or (ii) VA issued a decision on the claim, (4) Subject to paragraphs (a)(1) and (2) (ii) A surviving spouse, child, or between May 3, 1989, and the effective of this section, if a previously denied parent of a deceased Vietnam veteran date of the statute or regulation claim is reopened and granted based on who died from a covered herbicide establishing a presumption of service corrected military records, VA assigns disease. connection for the covered disease, in an effective date in accordance with (2) Covered herbicide disease means a which VA denied disability §§ 5.34(d) and 5.35(e); and disease for which the Secretary of compensation for a disease that Veterans Affairs has established a reasonably may be construed as the (5) Subject to paragraphs (a)(1) and (2) presumption of service connection of this section, if a beneficiary is same covered herbicide disease for pursuant to the Agent Orange Act of which disability compensation has been awarded an increase of a monetary 1991, Public Law 102–4, other than awarded. allowance due to an increase in chloracne. Those diseases are listed in (3) Claim received no later than 1 year disability, VA will assign an effective § 5.262(e). after separation from service. If the class date in accordance with § 5.312(b). (c) Effective date of disability member’s claim referred to in paragraph (b) Effective dates of reductions or compensation. If a Nehmer class (c)(1) or (2) of this section was received discontinuances. Except as otherwise member is entitled to disability no later than 1 year after the date of the provided in this paragraph (b), the compensation for a covered herbicide class member’s separation from service, effective date of a reduction or disease, the effective date of the award the effective date of the award will be discontinuance of a monetary allowance will be as follows: the day after the date of the class will be assigned in accordance with (1) Disability compensation denied member’s separation from active § 5.705(a). between September 25, 1985, and May military service. 3, 1989. If VA denied disability (4) Requirements not met. If the (1) If the monetary allowance was compensation for the same covered requirements of paragraph (c)(1) or (2) of paid erroneously because of beneficiary herbicide disease in a decision issued this section are not met, the effective error, VA will assign an effective date in between September 25, 1985, and May date of the award will be determined in accordance with § 5.167(b). 3, 1989, the effective date of the award accordance with § 5.152, and with the (2) If the monetary allowance was will be the later of the date VA received appropriate effective date section of this paid erroneously because of the claim on which the prior denial was part 5. See § 5.150(a) for the general rule administrative error by VA, VA will based or the date the disability arose, of effective dates, and § 5.150(c) for a assign an effective date in accordance except as provided in paragraph (c)(3) of list of locations of other effective date with § 5.167(c). this section. A prior decision will be provisions in part 5. construed as having denied disability (d) Effective date of dependency and (3) If a discontinuance is due to the compensation for the same disease if the indemnity compensation. If a Nehmer beneficiary’s death, VA will discontinue prior decision denied disability class member is entitled to dependency benefits effective the first day of the compensation for a disease that and indemnity compensation (DIC) for a month of the beneficiary’s death. reasonably may be construed as the death due to a covered herbicide (4) If a reduction or discontinuance is same covered herbicide disease for disease, the effective date of the award warranted by a change of law or VA which disability compensation has been will be as follows: issue, or by a change in interpretation of awarded. Minor differences in the (1) DIC denied between September 25, a law or VA issue, VA will assign an terminology used in the prior decision 1985, and May 3, 1989. If VA denied effective date in accordance with will not preclude a finding, based on the DIC for the death in a decision issued § 5.152(c). record at the time of the prior decision, between September 25, 1985, and May (5) If a reduction or discontinuance is that the prior decision denied disability 3, 1989, the effective date of the award warranted by a change in the compensation for the same covered will be the later of the date VA received beneficiary’s physical condition, VA herbicide disease. the claim on which such prior denial (2) New or pending claim. If the class will pay a reduced rate or discontinue was based or the date the death member’s claim for disability the monetary allowance effective the occurred, except as otherwise provided compensation for the covered herbicide first day of the month that begins after in paragraph (d)(3) of this section. disease either was pending before VA (2) New or pending claim. If the class the end of the 60-day period following on May 3, 1989, or was received by VA member’s claim for DIC for the death the notice of the proposed reduction or between that date and the effective date was either pending before VA on May discontinuance. The 60-day period is to of the statute or regulation establishing 3, 1989, or was received by VA between be calculated in the same way as the a presumption of service connection for that date and the effective date of the notice period described in § 5.83(a). the covered disease, the effective date of statute or regulation establishing a (Authority: 38 U.S.C. 1805, 1832, 5110, 5112) the award will be the later of the date presumption of service connection for

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the covered herbicide disease that 1964, the effective date will be the later the veteran’s claims file. If further caused the death, the effective date of of the date provided by paragraph (c) or information is needed to determine the award will be the later of the date (d) of this section or January 1, 1997. whether any appropriate payee exists or such claim was received by VA or the (Authority: Sec. 505, Pub. L. 104–275, 110 whether there is a person having equal date the death occurred, except as Stat. 3342–43) or higher priority than a known otherwise provided in paragraph (d)(3) prospective payee, VA will request such of this section. In accordance with (f) Payment of benefits to the survivor information from a survivor or § 5.52(b)(2), a claim by a surviving or estate of the deceased beneficiary— authorized representative if the claims spouse or child for death pension will (1) General rule. If a Nehmer class file provides sufficient contact be considered a claim for DIC. In all member entitled to retroactive benefits information. Before releasing payment other cases, a claim will be considered pursuant to paragraphs (c)(1) through (3) to an identified payee, VA will ask the a claim for DIC if the claimant’s or (d)(1) through (3) of this section dies payee to state whether there is any other application and other supporting prior to receiving payment of any such survivor of the class member who may statements and submissions may benefits, VA will pay such unpaid have equal or greater entitlement to reasonably be viewed, under the retroactive benefits to the first person or payment under this section, unless the standards ordinarily governing DIC entity listed below that is in existence circumstances clearly indicate that such claims, as indicating an intent to apply at the time of payment: a request is unnecessary. If, following for DIC. (i) The class member’s spouse, such efforts, VA releases the full amount (3) Claim received no later than 1 year regardless of current marital status. of unpaid benefits to a payee, VA may after veteran’s death. If the class Note to paragraph (f)(1)(i): For purposes of not thereafter pay any portion of such member’s claim referred to in paragraph this paragraph (f), a ‘‘spouse’’ is the person benefits to any other person, unless VA (d)(1) or (2) of this section was received who was legally married to the class member is able to recover the payment no later than 1 year after the date of the at the time of the class member’s death. previously released. veteran’s death, the effective date of the (ii) The class member’s child, (4) Bar to accrued benefit claims. award will be the first day of the month regardless of age or marital status (if Payment of benefits pursuant to in which the death occurred. more than one child exists, payment paragraph (f)(1) of this section will bar (4) Requirements not met. If the will be made in equal shares, a later claim by any person for payment requirements of paragraph (d)(1) or (2) accompanied by an explanation of the of all or any part of such benefits as of this section are not met, the effective division). accrued benefits under 38 U.S.C. 5121 date of the award will be determined in and § 5.551(a). accordance with § 5.152. Note to paragraph (f)(1)(ii): For purposes (e) Effect of other provisions affecting of this paragraph (f), the term ‘‘child’’ (g) Awards covered by this section. retroactive entitlement—(1) Scope. If the includes a natural and an adopted child, and This section applies only to awards of also includes any stepchild who was a requirements specified in paragraphs disability compensation or DIC for member of the class member’s household at disability or death caused by a disease (c)(1), (c)(2), (d)(1), or (d)(2) of this the time of the class member’s death. section are satisfied, the effective date listed in paragraph (b)(2) of this section. will be assigned as specified in those (iii) The class member’s parent, (Authority: 38 U.S.C. 501(a)) paragraphs, without regard to the regardless of dependency (if both provisions in 38 U.S.C. 5110(g) or parents are alive, payment will be made §§ 5.593–5.599 [Reserved] § 5.152 prohibiting payment for periods in equal shares, accompanied by an Ancillary Benefits for Certain Service- prior to the effective date of the statute explanation of the division). Connected Veterans and Certain or regulation establishing a presumption Note to paragraph (f)(1)(iii): For purposes Members of the Armed Forces Serving of service connection for a covered of this paragraph (f), the term ‘‘parent’’ on Active Duty herbicide disease. However, the includes a natural and an adoptive parent, provisions of this section will not apply but in the event of successive parents, the §§ 5.600–5.602 [Reserved] persons who last stood as parents in relation if payment to a Nehmer class member § 5.603 Financial assistance to purchase a based on a claim described in paragraph to the class member will be considered the parents. vehicle or adaptive equipment. (c) or (d) of this section is otherwise prohibited by statute or regulation, as, (iv) The class member’s estate. (a) Eligibility. Certain persons with for example, where a class member did (2) Inapplicability of certain accrued qualifying disabilities will be certified not qualify as a surviving spouse at the benefit requirements. The provisions of as eligible for financial assistance to time of the prior claim or denial. 38 U.S.C. 5121(c) and § 5.552(a), purchase a vehicle and necessary (2) Claims based on service in the requiring a survivor to file a claim for adaptive equipment. Republic of Vietnam prior to August 5, accrued benefits do not apply to (b) Definition of terms. The following 1964. If a claim referred to in paragraph payments under this section. When a definitions apply to this section: (c) or (d) of this section was denied by Nehmer class member dies prior to (1) Adaptive equipment. (i) Adaptive VA prior to January 1, 1997, and the receiving retroactive payments under equipment means equipment that must veteran’s service in the Republic of this section, VA will pay the amount to be part of or added to a vehicle Vietnam ended before August 5, 1964, an identified payee in accordance with manufactured for sale to the general the effective-date rules of this regulation paragraph (f)(1) of this section without public to: do not apply. The effective date of requiring an application from the payee. (A) Make it safe for use by the eligible benefits in such cases will be Prior to releasing such payment, person; and determined in accordance with 38 however, VA may ask the payee to (B) Assist the eligible person in U.S.C. 5110. If a claim referred to in provide further information as specified meeting applicable standards of paragraph (c) or (d) of this section was in paragraph (f)(3) of this section. licensure by the proper licensing pending before VA on January 1, 1997, (3) Identifying a payee. VA will make authority. or was received by VA after that date, reasonable efforts to identify the (ii) Adaptive equipment includes, but and the veteran’s service in the Republic appropriate payee under paragraph (f)(1) is not limited to: of Vietnam ended before August 5, of this section based on information in (A) Automatic transmission;

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(B) Power steering, power brakes, if another person is to operate the regional office for reimbursement of the power window lifts, and power seats; vehicle for the eligible person. actual cost of the adaptive equipment. (C) Modification of the interior space (ii) A claim for financial assistance to (ii) Eligible person. The eligible if necessary for the eligible person to purchase a vehicle will also be person must send the purchase receipt enter or travel in the vehicle; and considered a claim for adaptive and certificate of eligibility to VA for (D) Special equipment that the Under equipment necessary to operate the reimbursement of the actual cost of the Secretary for Health or designee has vehicle according to the safety standards adaptive equipment. deemed to be ordinarily necessary to of the licensing authority. (Authority: 38 U.S.C. 3901, 3902, 3903) assist an eligible person into or out of (iii) There is no time limit in which a vehicle, even if another person the claimant must apply for benefits § 5.604 Specially adapted housing under operates the vehicle for the eligible under this section. 38 U.S.C. 2101(a). person, or for an eligible person to (iv) For a claimant applying while A certificate of eligibility for operate the vehicle. still on active duty, the claim will be assistance in acquiring specially (2) Vehicle. Vehicle means an deemed filed with VA on the date the adapted housing under 38 U.S.C. automobile, van, truck, jeep, tractor, golf application is shown to be in possession 2101(a) or 2101A(a) may be extended to cart, or other conveyance. of military authorities for transmittal to a veteran or a member of the Armed (c) Eligibility criteria—(1) Persons VA. Forces serving on active duty if the eligible. The claimant must be: (2) Financial assistance for vehicles. following requirements are met: (i) A veteran who is entitled to An eligible person is not entitled to (a) Eligibility. A veteran must have disability compensation under 38 U.S.C. benefits for the purchase of more than had active military service after April chapter 11, including disability one vehicle under the provisions of this 20, 1898. Benefits are not restricted to compensation under 38 U.S.C. 1151, for section. No payments may be made for veterans with wartime service. After a qualifying disability described in the repair, maintenance, or replacement December 15, 2003, the benefit under paragraph (c)(2) of this section; or of the vehicle. this section is also available to a person (ii) A member of the Armed Forces (3) Financial assistance for adaptive in the Armed Forces serving on active serving on active duty who has a equipment. An eligible person is not duty. qualifying disability described in entitled to adaptive equipment for more (b) Disability. A person in the Armed paragraph (c)(2) of this section that is than two vehicles in a 4-year period Forces serving on active duty must have the result of an injury incurred or unless, due to circumstances beyond the a disability rated as permanent and total disease contracted in or aggravated by eligible person’s control, one of the that was incurred or aggravated in the active military service. adapted vehicles is no longer available. line of duty in active military service. A (2) Qualifying disabilities. The The Under Secretary for Health or veteran must be entitled to claimant must have one of the following designee may authorize payments or compensation under 38 U.S.C. chapter disabilities: reimbursements for the repair, 11 for a disability rated as permanent (i) Anatomical loss or permanent loss replacement, or reinstallation of and total. In either case, the disability of use of one or both feet; adaptive equipment deemed necessary must be due to: (ii) Anatomical loss or permanent loss for the operation of the vehicle. See (1) The anatomical loss or loss of use of use of one or both hands; § 17.158 of this chapter for additional of both lower extremities, such as to (iii) Permanent impairment of vision limitations on assistance for adaptive preclude locomotion without the aid of of both eyes: central visual acuity of 20/ equipment. braces, crutches, canes, or a wheelchair; 200 or less in the better eye, with (e) VA certification process for (2) Blindness in both eyes, having corrective glasses, or central visual financial assistance to purchase a only light perception, plus the acuity of more than 20/200 if there is a vehicle or adaptive equipment. If a anatomical loss or loss of use of one field defect in which the peripheral claim for financial assistance to lower extremity; field has contracted to such an extent purchase a vehicle or adaptive (3) The anatomical loss or loss of use that the widest diameter of visual field equipment is granted, VA will issue a of one lower extremity together with subtends an angular distance no greater certificate of eligibility to the claimant. residuals of organic injury or disease than 20 degrees in the better eye; (f) Redemption of certificate of which so affect the functions of balance (iv) Ankylosis of one or both knees or eligibility—(1) Purchase of vehicle. VA or propulsion as to preclude locomotion of one or both hips; however, VA will may pay the financial assistance to without the aid of braces, crutches, provide to a person with ankylosis only purchase a vehicle to the seller as canes, or a wheelchair; financial assistance to purchase follows: (4) The anatomical loss or loss of use adaptive equipment, and will not The eligible person must give the of one lower extremity together with the provide financial assistance to purchase certificate of eligibility to the seller of anatomical loss or loss of use of 1 upper a vehicle; or the vehicle. The seller must send the extremity which so affect the functions (v) Severe burn injury. purchase receipt and certificate of of balance or propulsion as to preclude (d) Limitations on assistance—(1) eligibility to a VA regional office for locomotion without the aid of braces, Claim for financial assistance to reimbursement of the purchase price, or crutches, canes, or a wheelchair; purchase a vehicle or adaptive the statutory limit set in 38 U.S.C. (5) The anatomical loss or loss of use equipment. (i) The claimant must file a 3902(a), whichever is less. of both upper extremities such as to claim for financial assistance to (2) Purchase of adaptive equipment. preclude use of the arms at or above the purchase a vehicle or adaptive VA may pay the adaptive equipment elbow; or equipment, which includes a allowance to either the seller or the (6) Full thickness or subdermal burns certification by the claimant that the eligible person as follows: that have resulted in contractures with vehicle will be operated only by a (i) Seller. The eligible person must limitation of motion of two or more person properly licensed. However, VA give the certificate of eligibility to the extremities or of at least one extremity will provide financial assistance to seller of the adaptive equipment. The and the trunk. purchase a vehicle for an eligible person seller must send the purchase receipt (c) Preclude locomotion. Preclude who cannot qualify to operate a vehicle and certificate of eligibility to a VA locomotion means the necessity for

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regular and constant use of a (iv) Residuals of an inhalation injury, the veteran of his or her entitlement to wheelchair, braces, crutches or canes as including, but not limited to, pulmonary service connection for a qualifying a normal mode of locomotion although fibrosis, asthma, and chronic obstructive disability. occasional locomotion by other methods pulmonary disease. (e) Time limits for claim.—(1) Initial may be possible. (Authority: 38 U.S.C. 1151(c)(1), 2101, year of payment eligibility. A veteran (Authority: 38 U.S.C. 1151(c)(1), 2101, 2101A, 2102, 2104) who meets the requirements of 2101A, 2102, 2104) Cross Reference: Assistance to certain paragraphs (b)(1) through (3) of this Cross Reference: Assistance to certain disabled veterans in acquiring specially section is eligible to receive the annual disabled veterans in acquiring specially adapted housing. See §§ 36.4400 clothing allowance for the initial year of adapted housing. See §§ 36.4400 through 36.4410 of this chapter. payment eligibility if: through 36.4410 of this chapter. (i) VA notifies the veteran of his or § 5.606 Clothing allowance. her entitlement to service connection for § 5.605 Special home adaptation grants (a) General rule. VA will pay an under 38 U.S.C. 2101(b). a qualifying disability before August 1 annual clothing allowance to a veteran of the initial year of payment eligibility, A certificate of eligibility for with a qualifying disability. However, and the veteran files a claim for clothing assistance in acquiring necessary special VA will pay more than one annual allowance no later than 1 year after home adaptations, or, after October 27, clothing allowance if VA determines August 1 of the initial year of payment 1986, for assistance in acquiring a that the veteran has more than one eligibility; or residence already adapted with qualifying disability. For purposes of necessary special features, under 38 this section, a ‘‘veteran’’ includes a (ii) VA notifies the veteran of his or U.S.C. 2101(b) or 2101A(a) may be person who has returned to active duty her entitlement to service connection for issued to a veteran who served after after previously meeting the definition a qualifying disability after August 1 of April 20, 1898, or to a member of the of ‘‘veteran’’ found in § 5.1. the initial year of payment eligibility, Armed Forces serving on active duty (b) Qualifying disability. A and the veteran files a claim for clothing who is eligible for the benefit under this ‘‘qualifying disability’’ is a service- allowance no later than 1 year after the section after December 15, 2003, if the connected disability, or a disability date of the notice. following requirements are met: compensable ‘‘as if’’ service connected (2) Payment year following date of (a)(1) The veteran or member of the under 38 U.S.C. 1151, that: claim. VA will pay the clothing Armed Forces serving on active duty is (1) Is the anatomical loss or loss of use allowance for the payment year that not entitled to a certificate of eligibility of a hand or foot compensable at a rate begins after the date of the claim for for assistance in acquiring specially specified in §§ 5.322 through 5.329, clothing allowance, if the veteran is adapted housing under § 5.604, nor had § 5.331, or § 5.332 that requires the entitled to the clothing allowance, and the veteran or member of the Armed veteran to wear or use a prosthetic or if: Forces serving on active duty previously orthopedic appliance (including, but not (i) VA notified the veteran of his or received assistance in acquiring limited to, a wheelchair) that tends to her entitlement to service connection for specially adapted housing under 38 wear or tear the veteran’s clothing, a qualifying disability before August 1 U.S.C. 2101(a). which is shown on VA examination, or of the initial year of payment eligibility, (2) A veteran or member of the Armed by a hospital or examination report from and the veteran filed the claim for Forces serving on active duty who first a facility specified in § 5.91(a); clothing allowance more than 1 year establishes entitlement under this (2) The Under Secretary for Health or after August 1 of the initial year of section and who later becomes eligible designee certifies that the veteran wears payment eligibility; or for a certificate of eligibility under or uses a prosthetic or orthopedic § 5.604 may be issued a certificate of appliance (including, but not limited to, (ii) VA notified the veteran of his or eligibility under § 5.604. a wheelchair) that tends to wear or tear her entitlement to service connection for (b) A member of the Armed Forces the veteran’s clothing; or a qualifying disability after August 1 of serving on active duty must have a (3) Is a skin condition that the Under the initial year of payment eligibility, disability rated as permanent and total Secretary for Health or designee certifies and the veteran filed the claim for that was incurred or aggravated in the requires the veteran to use prescription clothing allowance more than 1 year line of duty in active military service. A medication that causes irreparable after the date of the notice. veteran must be entitled to damage to the veteran’s outer garments. (f) Reduction for incarceration. An compensation under 38 U.S.C. chapter (c) New claim required every year. eligible veteran who is incarcerated for 11 for a disability rated as permanent The veteran must file a claim for a any reason for more than 60 days in a and total. In either case, the disability clothing allowance every year, unless: Federal, State, or local penal institution must: (1) The clothing allowance was and who is provided clothing without (1) Include the anatomical loss or loss granted according to the criteria in charge by the institution will not receive of use of both hands; or paragraph (b)(1) of this section; or the full clothing allowance payment. VA (2) Be due to: (2) The Under Secretary for Health or will reduce the amount stated in 38 (i) Blindness in both eyes with 5/200 designee finds that a clothing allowance U.S.C. 1162 by 1/365th of that amount visual acuity or less; or granted according to the criteria in for each day over 60 days that the (ii) Deep partial thickness burns that paragraph (b)(2) or (3) of this section is veteran was incarcerated during the 12- have resulted in contractures with static. month period beginning August 1 and limitation of motion of two or more (d) Payment year. Clothing allowance ending July 31. VA will not reduce the extremities or of at least one extremity is paid annually. The payment year amount for the initial 60 days of a and the trunk; or covers a 12-month period beginning period of incarceration. (iii) Full thickness or subdermal burns August 1 and ending July 31 of the (Authority: 38 U.S.C. 107, 1162, 5313A) that have resulted in contracture(s) with following year. The initial year of limitation of motion of one or more payment eligibility begins August 1 of Cross Reference: § 5.1, for the extremities or the trunk; or the calendar year in which VA notifies definition of ‘‘State’’.

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§§ 5.607–5.609 [Reserved] of the U.S., such a person is not entitled Cross Reference: § 5.21, Service VA to the presumption of soundness. This recognizes as active military service. Subpart I—Benefits for Certain Filipino also applies upon reentering the Armed § 5.28, Other groups designated as Veterans and Survivors Forces after a period of inactive military having performed active military Philippine Service service. service. § 5.39, Minimum active duty (4) Acceptable evidence of service in service requirement for VA benefits. § 5.610 Eligibility for benefits based on the Commonwealth Army of the § 5.40, Service records as evidence of Philippine service. Philippines. Service must be established service and character of discharge that (a) Old Philippine Scouts—(1) as specified in § 5.40. qualify for VA benefits. Included service. Service in the Old (d) Guerrilla service—(1) Included Philippine Scouts (Scouts who enlisted service. A person who served as a § 5.611 Philippine service: determination before October 6, 1945) constitutes of periods of active military service, guerrilla under a commissioned officer including, but not limited to, periods of active military service for purposes of of the U.S. Army, Navy, or Marine active military service while in prisoner of pension, disability compensation, Corps, or under a commissioned officer war status. dependency and indemnity of the Commonwealth Army of the (a) Period of service. For an Old compensation (DIC), and burial benefits. Philippines recognized by and Philippine Scout, a member of one of Service as an officer commissioned in cooperating with the U.S. Forces is the regular components of the connection with the administration of considered to have performed active Commonwealth Army of the Philippines Pub. L. 79–190, 59 Stat. 538, also military service for purposes of while serving with the Armed Forces of constitutes active military service under disability compensation, DIC, and burial the U.S., and a New Philippine Scout, this paragraph (a)(1). allowance. Service as a guerrilla by a (2) Rate of payment. Benefits are the period of active military service will member of the Old Philippine Scouts or be from the date certified by the U.S. payable at the full-dollar rate. the Armed Forces of the U.S. is (3) Acceptable evidence of service in Armed Forces as the date of enlistment considered service in his or her regular or the date of reporting for active duty, the Old Philippine Scouts. Service must status. (See paragraph (a) of this be established as specified in § 5.40. whichever is later, to the date of release section.) from active duty, discharge, death, or in (b) New Philippine Scouts—(1) (2) Rate of payment. Except as Included service. All enlistments and the case of a member of the provided in §§ 5.613 and 5.617, benefits Commonwealth Army of the reenlistments of New Philippine Scouts based on service described in paragraph in the Regular Army between October 6, Philippines, June 30, 1946, whichever is (d)(1) of this section are payable at a rate earlier. Release from active duty 1945, and June 30, 1947, inclusive, of $0.50 for each dollar authorized constitute active military service for includes: under the law. (1) Leaving one’s organization in purposes of disability compensation and (3) Acceptable evidence of guerrilla DIC, and, in the case of deaths occurring anticipation of, or due to, the service. Service must be established as capitulation. after December 15, 2003, burial benefits. specified in § 5.40. The following (2) Rate of payment. Except as (2) Escape from prisoner of war status. certifications by a U.S. service (3) Parole by the Japanese. provided in §§ 5.613 and 5.617, benefits department in accordance with § 5.40 based on service described in paragraph (4) Beginning of missing-in-action will be accepted as establishing guerrilla status, except if factually shown that at (b)(1) of this section are payable at a rate service: of $0.50 for each dollar authorized that time he or she was with his or her (i) Recognized guerrilla service; or unit or if death is presumed to have under the law. (ii) Unrecognized guerrilla service (3) Acceptable evidence of service in occurred while carried in such status. under a recognized commissioned the New Philippine Scouts. Service must However, if there is credible evidence officer only if the person was a former be established as specified in § 5.40. that he or she was alive after (c) Commonwealth Army of the member of the U.S. Armed Forces commencement of his or her missing-in- Philippines—(1) Included service. (including the Old Philippine Scouts), action status, then the presumption of Service of a member of the or the Commonwealth Army of the death will not apply for VA purposes. Commonwealth Army of the Philippines Philippines. This excludes civilians. (5) Capitulation on May 6, 1942, (4) Unacceptable evidence of guerrilla constitutes active military service for except that periods of recognized service. A certification of anti-Japanese purposes of disability compensation, guerrilla service, unrecognized guerrilla activity will not be accepted as DIC, and burial allowance, from and service under a recognized establishing guerrilla service. after the dates and hours, respectively, commissioned officer, or periods of (e) Combined service. Where a veteran when he or she was called into service service in units which continued who had Commonwealth Army of the of the Armed Forces of the U.S. by organized resistance against the Philippines or guerrilla service and also orders issued from time to time by the Japanese prior to formal capitulation had other service, wartime or peacetime, Commander-in-Chief, Southwest Pacific will be considered return to active duty in the Armed Forces of the U.S., has Area, or other competent authority in for the period of such service. disabilities that are compensable the Army of the U.S., pursuant to the (b) Prisoner of war status. Active separately on a dollar and a $0.50-for- Military Order of the President of the military service of an Old Philippine each-dollar authorized basis, and the U.S. dated July 26, 1941. Scout or a member of the (2) Rate of payment. Except as disabilities are combined under the Commonwealth Army of the Philippines provided in §§ 5.613 and 5.617, benefits authority contained in 38 U.S.C. 1157, serving with the Armed Forces of the based on service described in paragraph the rating for which dollars are payable U.S. will include a prisoner of war (c)(1) of this section are payable at a rate will be first considered and the status immediately following a period of of $0.50 for each dollar authorized difference between this rating and the active duty, or a period of recognized under the law. combined rating will be the basis for guerrilla service or unrecognized (3) Presumption of soundness. Unless computing the amount payable at the guerrilla service under a recognized the record shows examination at the rate of $0.50 for each dollar authorized. commissioned officer. In those cases time of entrance into the Armed Forces (Authority: 38 U.S.C. 107) where, following release from active

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duty as set forth in paragraph (a) of this former active military service in the character of discharge that qualify for section, the veteran is factually found by Armed Forces of the U.S. VA benefits. § 5.140, Determining the VA to have been injured or killed by (c) Arrest. A prisoner of war status former prisoner of war status, for the the Japanese because of anti-Japanese based upon arrest during general definition of ‘‘former prisoner of war’’. activities or because of his or her former zonification will not be sufficient of Benefits and Effective Dates of Certain service in the Armed Forces of the U.S., itself to bring a case within the Filipino Veterans and Survivors such injury or death may be held to definition of return to military control. have been incurred in active military (d) Period of guerrilla service. The § 5.612 Overview of benefits available to a service for VA purposes. VA will make active military service of a guerrilla will Filipino veteran and his or her survivor. such determinations based on all be the period certified by a U.S. service (a) Scope. The following table lists available evidence, including, but not department. many of the benefits that VA may provide based on qualifying service in limited to U.S. service department (Authority: 38 U.S.C. 107) reports, and VA will consider the the Republic of the Philippines. This character and length of the veteran’s Cross Reference: § 5.40, Service table does not confer any substantive records as evidence of service and rights.

BENEFITS AVAILABLE TO A FILIPINO VETERAN AND HIS OR HER SURVIVOR

Armed forces of the U.S., Benefit including Old Philippine New Philippine Scouts (§ 5.610(b)) Commonwealth Army of the Philippines/ Scouts (§ 5.610(a)) Guerrillas (§ 5.610(c) and (d))

(1) Disability Com- Yes—Full-Rate ...... Yes—Full-Rate if U.S. citizen or permanent Yes—Full-Rate if U.S. citizen or permanent pensation. resident alien and residing in U.S. Other- resident alien and residing in U.S. Other- wise, Half-Rate. wise, Half-Rate. (2) Pension ...... Yes—Full-Rate ...... No ...... No. (3) Clothing Allowance Yes—Full-Rate ...... Yes—Half-Rate ...... Yes—Half-Rate. (4) DIC ...... Yes—Full-Rate ...... Yes—Full-Rate if U.S. citizen or permanent Yes—Full-Rate if U.S. citizen or permanent resident alien and residing in U.S. Other- resident alien and residing in U.S. Other- wise, Half-Rate. wise, Half-Rate. (5) Parents’ DIC ...... Yes—Full-Rate ...... Yes—Full-Rate if U.S. citizen or permanent Yes—Full-Rate if U.S. citizen or permanent resident alien and residing in U.S. Other- resident alien and residing in U.S. Other- wise, Half-Rate. wise, Half-Rate. (6) Burial Benefits ...... Yes—Full-Rate ...... Yes—Full-Rate if veteran dies after 12/15/ Yes—Full-Rate if veteran dies after 11/1/00 03 and was a U.S. citizen or permanent and was a U.S. citizen or permanent resi- resident alien and residing in U.S. on date dent alien and residing in U.S. on date of of death (in some cases). See § 5.617 for death (in some cases). See § 5.617 for specific requirements. Half-Rate if veteran specific requirements. Half-Rate if veteran dies after 12/15/03, but above criteria not dies after 11/1/00 but above criteria not met. No benefits payable if veteran died met or if veteran died before 11/2/00. before 12/16/03.

(b) Other sections relevant to claims (1) United States means the States, payable at the full-dollar rate based on based on qualifying service in the territories, and possessions of the service described in § 5.610(b), (c), or (d) Republic of the Philippines—(1) United U.S.; the District of Columbia; to a veteran or a veteran’s survivor who Affidavits prepared in the Republic of and the Commonwealth of Puerto Rico. is residing in the U.S. and is either: the Philippines. See § 5.132. (2) Residing in the U.S. means that a (1) A citizen of the U.S.; or (2) Child adopted under foreign law. person’s principal, actual residence is in (2) An alien lawfully admitted for See § 5.225. the U.S. and that the person meets the permanent residence in the U.S. (3) Dependents’ educational residency requirements of paragraph (c) Evidence of eligibility for full- assistance for a child based on the (c)(1) of this section. dollar rate benefits—(1) Evidence of child’s parent’s service in the (3) Citizen of the U.S. means any residency. (i) Evidence establishing that Commonwealth Army of the Philippines person who acquires U.S. citizenship the veteran or the veteran’s survivor is through birth in the territorial U.S., or as a New Philippine Scout as defined residing in the U.S. should identify the birth abroad as provided under title 8, in § 5.610(b), (c), or (d). See § 5.586. veteran’s or veteran’s survivor’s name United States Code, or through (4) Forfeiture based on fraud or and relevant dates, and may include: naturalization, and has not renounced treason committed in the Philippine his or her U.S. citizenship, or had such (A) A valid driver’s license issued by Islands. See §§ 5.676 and 5.677. citizenship cancelled, revoked, or the State of residence; (Authority: 38 U.S.C. 501(a)) otherwise discontinued. (B) Employment records, which may (4) Lawfully admitted for permanent consist of pay stubs, W–2 forms, and Cross Reference: § 5.1, for the certification of the filing of Federal, definition of ‘‘fraud’’. residence means that a person has been, and continues to be, lawfully accorded State, or local income tax returns; § 5.613 Payment of disability the privilege of residing permanently in (C) Residential leases, rent receipts, compensation or dependency and the U.S. as an immigrant by the U.S. utility bills and receipts, or other indemnity compensation at the full dollar Citizenship and Immigration Services relevant documents showing dates of rate for certain Filipino veterans or their under title 8, United States Code. utility service at a leased residence; survivors residing in the U.S. (b) Eligibility requirements. Disability (D) Hospital or medical records (a) Definitions. For purposes of this compensation or dependency and showing medical treatment or section: indemnity compensation (DIC) is hospitalization, and showing the name

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of the medical facility or treating under this section must inform VA no § 5.614 Effective dates of benefits at the physician; later than 30 days after leaving the U.S., full-dollar rate for a Filipino veteran and his (E) Property tax bills and receipts; and or no later than 30 days after losing or her survivor. (F) School records. either his or her U.S. citizenship or Public Laws 106–377 and 108–183, (ii) A Post Office box mailing address lawful permanent resident alien status. which provide disability compensation in the veteran’s or veteran’s survivor’s When a veteran or a veteran’s survivor and dependency and indemnity name does not constitute evidence no longer meets the eligibility compensation (DIC) at full-dollar rates showing that the veteran or veteran’s requirements of paragraph (b) of this to certain Filipino veterans and their survivor is lawfully residing in the U.S. section, VA will pay a reduced rate of survivors, are considered liberalizing (2) Evidence of citizenship. A valid $0.50 for each dollar authorized under laws. Accordingly, the provisions of original or valid copy of one of the § 5.152, apply when determining the following documents is required to the law, effective on the date determined under § 5.618. If such effective date of an award. If the prove that the veteran or the veteran’s requirements of § 5.152 are not satisfied, survivor is a natural born citizen of the veteran or veteran’s survivor regains his or her U.S. citizenship or lawful then the effective date of an award or U.S.: increased award of benefits at the full- permanent resident alien status, VA will (i) A U.S. passport; dollar rate under § 5.613 will be restore full-dollar rate benefits, effective (ii) A birth certificate showing that he determined as follows: on the date determined under § 5.614. or she was born in the U.S.; or (a) Effective date of initial entitlement (iii) A Report of Birth Abroad of a (3) Verification of status. When to the full-dollar rate. The latest of the Citizen of the U.S. issued by a U.S. requested to do so by VA, a veteran or following dates: consulate. a veteran’s survivor receiving benefits at (3) Verification of citizenship. Only (1) Date entitlement arose; the full-dollar rate under this section verification by the U.S. Citizenship and (2) Date on which the veteran or the must verify that he or she continues to Immigration Services to VA that a veteran’s survivor first met the meet the residency and citizenship or veteran or a veteran’s survivor is a residency and citizenship or permanent naturalized citizen of the U.S., or a valid permanent resident alien status resident alien status requirements in U.S. passport, will be sufficient proof of requirements of paragraph (b) of this § 5.613, if VA receives evidence of this such status. section. VA will advise the veteran or no later than 1 year after that date; or (4) Verification of permanent resident the veteran’s survivor at the time of the (3) Effective date of service status. Only verification by the U.S. request that the verification must be connection, provided that no later than Citizenship and Immigration Services to received no later than 60 days after the 1 year after VA notifies the veteran or VA that a veteran or a veteran’s survivor date of the request or else the rate of the veteran’s survivor that it has granted is an alien lawfully admitted for payment will be reduced. If VA does not service connection, VA receives permanent residence in the U.S. will be receive the evidence within 60 days evidence that he or she meets the sufficient proof of such status. after the date of the request, VA will pay residency and citizenship or permanent (d) Continued eligibility.—(1) Present a reduced rate of $0.50 for each dollar resident alien status requirements in in the U.S. In order to continue authorized, effective on the date § 5.613. receiving benefits at the full-dollar rate provided in § 5.104, Certifying (b) Effective date of resumption of the under this section, a veteran or a continuing eligibility to receive benefits. full-dollar rate. Depending on the veteran’s survivor must be physically If VA subsequently receives the reason for reduction to the rate of $0.50 present in the U.S. for at least 183 days requested evidence of continued for each dollar, the effective date of of each calendar year in which he or she eligibility, it will resume payments at restored eligibility for the full-dollar rate receives payments at the full-dollar rate, the full-dollar rate, effective on the date will be: and may not be absent from the U.S. for determined under § 5.614. (1) The date the beneficiary regains more than 60 consecutive days at a time, his or her U.S. citizenship or lawful (4) Change of address. A veteran or a permanent resident alien status as unless good cause is shown. When a veteran’s survivor receiving benefits at veteran’s or veteran’s survivor’s absence required in § 5.613; the full-dollar rate under this section from the U.S. exceeds one of those (2) The date the veteran or the must promptly inform VA of any change limits, VA will pay a reduced rate of veteran’s survivor returned to the U.S. in his or her address. If mail from VA $0.50 for each dollar authorized under after an absence of more than 60 to the veteran or the veteran’s survivor the law, effective on the date consecutive days; is returned to VA by the U.S. Postal determined under § 5.618. If such (3) In the case of a veteran or veteran’s veteran or veteran’s survivor returns to Service, VA will make reasonable efforts survivor who was absent from the U.S. the U.S., VA will resume payments at to determine the correct mailing for a total of 183 days or more and the full-dollar rate, effective on the date address. If VA is unable to determine returned to the U.S. during the same determined under § 5.614. However, if a the correct mailing address through calendar year, the first day of the veteran or a veteran’s survivor becomes reasonable efforts, VA will pay a following calendar year; or eligible for full-dollar rate benefits for reduced rate of $0.50 for each dollar (4) In the case of a veteran or veteran’s the first time after June 30 of any authorized under law, effective on the survivor who was absent from the U.S. calendar year, the 183-day rule will not date determined under § 5.618. If VA for a total of 183 days or more and apply during that calendar year. VA will subsequently receives evidence of a returned to the U.S. in a later calendar not consider a veteran or a veteran’s valid U.S. mailing address, it will year but less than 183 days after the survivor to have been absent from the resume payments at the full-dollar rate, beginning of such calendar year, the day U.S. if he or she left and returned to the effective on the date determined under following their return. U.S. on the same date. § 5.614. (5) In the case of resumption of the (2) Veteran or veteran’s survivor (Authority: 38 U.S.C. 107, 501(a)) full-dollar rate under § 5.613(d)(3), the leaves U.S. or loses citizenship or status. date the requested evidence of A veteran or a veteran’s survivor Cross Reference: § 5.1, for the continued eligibility is received by VA; receiving benefits at the full-dollar rate definitions of ‘‘alien’’ ‘‘State’’. or

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(6) In the case of resumption of the § 5.617 Burial benefits at the full-dollar (B) Employment records, which may full-dollar rate under § 5.613(d)(4), the rate for certain Filipino veterans residing in consist of pay stubs, W–2 forms, and date VA receives evidence of a valid the U.S. on the date of death. certification of the filing of Federal, U.S. mailing address. (a) Definitions. For purposes of this State, or local income tax returns; (c) When payments at the full-dollar section: (C) Residential leases, rent receipts, rate will begin after eligibility is (1) United States means the States, utility bills and receipts, or other restored. In the case of a veteran or a territories, and possessions of the U.S.; relevant documents showing dates of veteran’s survivor whose eligibility is the District of Columbia; and the utility service at a leased residence; restored under § 5.613, Payment of Commonwealth of Puerto Rico. (D) Hospital or medical records (2) Residing in the U.S. means a disability compensation or dependency showing medical treatment or person’s principal, actual residence was and indemnity compensation at the full hospitalization of the veteran or the in the U.S. When death occurs outside dollar rate for certain Filipino veterans veteran’s survivor, and showing the the U.S., VA will consider the deceased or their survivors residing in the U.S., name of the medical facility or treating person to have been residing in the U.S. VA will resume payments at the full- physician; on the date of death if the person (E) Property tax bills and receipts; and dollar rate, if otherwise in order, maintained his or her principal, actual (F) School records. effective the first day of the month after residence in the U.S. until his or her (ii) A Post Office box mailing address the date established in paragraph (b) of most recent departure from the U.S., in the veteran’s name does not this section. However, such increased and he or she had been physically constitute evidence showing that the payments will not be retroactive for absent from the U.S. less than 61 veteran was lawfully residing in the more than 1 year before the date on consecutive days when he or she died. which VA receives evidence that the (3) Citizen of the U.S. means any U.S. on the date of death. veteran or veteran’s survivor met the person who acquires U.S. citizenship (2) Evidence of citizenship. In a claim requirements again. through birth in the territorial U.S., for full-dollar rate burial payments (Authority: 38 U.S.C. 107; Pub. L. 106–377 birth abroad as provided under title 8, based on the deceased veteran having App. A, 114 Stat. 1441A–57; Pub. L. 108– United States Code, or through been a natural born citizen of the U.S., 183, 117 Stat. 2651) naturalization, and has not renounced a valid original or valid copy of one of his or her U.S. citizenship, or had such the following documents is required: Cross Reference: § 5.1, for the (i) A U.S. passport; definition of ‘‘alien’’. citizenship cancelled, revoked, or otherwise discontinued. (ii) A birth certificate showing that he § 5.615 Parents’ dependency and (4) Lawfully admitted for permanent or she was born in the U.S.; or indemnity compensation based on certain residence means that the person had (iii) A Report of Birth Abroad of a Philippine service. been, and continued to be, lawfully Citizen of the U.S. issued by a U.S. (a) Scope. This regulation applies to accorded the privilege of residing consulate. claims for parents’ dependency and permanently in the U.S. as an immigrant (3) Verification of citizenship. In a indemnity compensation (DIC) based on by the U.S. Citizenship and Immigration claim for full-dollar rate burial the following types of service, as Services under title 8, United States payments based on the deceased veteran described in § 5.610: Code, on the date of death. having been a naturalized citizen of the U.S., only verification of that status by (1) Service in the Commonwealth (b) Eligibility requirements. VA will the U.S. Citizenship and Immigration Army of the Philippines; pay burial benefits under 38 U.S.C. chapter 23, at the full-dollar rate, based Services to VA, or a valid U.S. passport, (2) Service as a guerrilla; and on service described in § 5.610(c) or (d) will be sufficient proof for purposes of (3) Service as a New Philippine Scout. when a person who performed such eligibility for full-dollar rate benefits. (b) Income limitations. DIC is not service dies after November 1, 2000, or (4) Verification of permanent resident payable to a parent whose annual based on service described in § 5.610(b) status. In a claim for full-dollar rate income exceeds the limitations set forth when a person who performed such burial payments based on the deceased in 38 U.S.C. 1315 (b), (c), or (d). For service dies after December 15, 2003, veteran having been an alien lawfully parents’ DIC, these income limitations and was on the date of death: admitted for permanent residence in the will be at a rate of $0.50 for each dollar. (1) Residing in the U.S.; and was U.S., only verification of that status by However, if the beneficiary meets the (2) Either: the U.S. Citizenship and Immigration requirements for the full-dollar rate in (i) A citizen of the U.S.; or Services to VA will be sufficient proof § 5.613, then these income limitations (ii) An alien lawfully admitted for for purposes of eligibility for full-dollar will be at the full-dollar rate. permanent residence in the U.S.; and rate benefits. was (Authority: 38 U.S.C. 107; Pub. L. 108–183, (Authority: 38 U.S.C. 107, 501(a)) 117 Stat. 2651) (3) Either: (i) Receiving disability compensation Cross Reference: § 5.1, for the Cross Reference: §§ 5.530 through under 38 U.S.C. chapter 11; or definitions of ‘‘alien’’ and ‘‘State’’. 5.537, for eligibility requirements and (ii) Meeting the disability, income, payment rules for parents’ DIC. and net worth requirements of § 5.618 Effective dates of reductions and § 5.371,and would have been eligible for discontinuances for benefits at the full- § 5.616 Hospitalization in the Philippines. pension if the veteran’s service had been dollar rate for a Filipino veteran and his or Hospitalization in the Philippines deemed to be active military service. her survivor. under 38 U.S.C. 1731, 1732, and 1733 (c) Evidence of eligibility—(1) (a) General rule. VA will assign an does not qualify the deceased for burial Evidence of residency. (i) Evidence effective date of a reduction or benefits based on death while properly establishing that the veteran was discontinuance of benefits payable to a hospitalized by VA. residing in the U.S. on the date of death Filipino veteran or the veteran’s survivor in accordance with § 5.705. (Authority: 38 U.S.C. 107) should identify the veteran’s name and relevant dates, and may include: (b) Discontinuance based on the Cross Reference: §§ 5.630 through (A) A valid driver’s license issued by withdrawal of recognition of service. 5.653, for burial benefits. the State of residence; When a discontinuance is based on the

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withdrawal of recognition of service, the Cross Reference: § 5.1, for the subpart J of this part, up to the amount discontinuance will be effective the first definition of ‘‘alien’’. § 5.705, General of the applicable statutory burial day of the month after the month for effective dates of reduction or allowance or a plot or interment which VA last paid benefits. discontinuance of benefits. allowance. Except in claims a State or an agency or political subdivision of a (c) Reduction of payments from the §§ 5.619–5.629 [Reserved] full-dollar rate to the half-dollar rate. State files under § 5.636(a)(2) or The effective date of discontinuance of Subpart J—Burial Benefits § 5.645(a), such persons generally the full-dollar rate of payment under include (but are not limited to) the § 5.613, and reduction to the $0.50 rate Burial Benefits: General following: (a) The funeral director, if all or any of payment will be the earliest of the § 5.630 Types of VA burial benefits. dates stated in this section. Where an part of the bill is unpaid. award is reduced, the reduced rate will (a) Burial benefits. VA provides the (b) Any person who used personal be effective the day after the date of following types of burial benefits, which funds to pay or help pay burial discontinuance of the greater benefit. are discussed in §§ 5.631 through 5.653: expenses. (1) Burial allowance based on service- (1) Absence from U.S. for 183 days or (c) The executor or administrator of connected death; the estate of any person, including the more. If a veteran or a veteran’s survivor (2) Burial allowance based on receiving benefits at the full-dollar rate estate of the deceased veteran, who nonservice-connected death; prepaid the burial expenses. If no under § 5.613 is physically absent from (3) Burial allowance for a veteran who the U.S. for a total of 183 days or more executor or administrator has been died while hospitalized by VA; appointed, VA may pay burial benefits during any calendar year, VA will pay (4) Burial plot or interment allowance; a reduced rate of $0.50 for each dollar based on a claim filed by a person acting and for such estate who will make authorized under the law, effective on (5) Allowance for transportation of the 183rd day of absence from the U.S. distribution of the burial benefits to the remains. person or persons entitled to such (2) Absence from U.S. for more than (b) Definition. For purposes of this distribution under the laws of the 60 consecutive days. If a veteran or a subpart, burial means all the legal veteran’s last State of residence. veteran’s survivor receiving benefits at methods of disposing of the remains of (d) In a claim for a plot or interment the full-dollar rate under § 5.613 is a deceased person, including, but not allowance under § 5.645(b), the person physically absent from the U.S. for more limited to, cremation, burial at sea, and or entity from whom the burial plot was than 60 consecutive days, VA will pay medical school donation. purchased, if all or any part of the bill a reduced rate of $0.50 for each dollar (c) Cross references. (1) Other benefits is unpaid. authorized under the law, effective on and services related to the the 61st day of the absence. memorialization or interment of a (Authority: 38 U.S.C. 2302, 2307) (3) Loss of U.S. citizenship or status. deceased veteran include the following: Cross Reference: § 5.1, for the If a veteran or a veteran’s survivor (A) Burial in a national cemetery (see definition of ‘‘State’’. receiving benefits at the full-dollar rate §§ 38.600 through 38.629 of this § 5.633 Claims for burial benefits. under § 5.613 loses either U.S. chapter); citizenship or status as an alien lawfully (B) Presidential memorial certificates (a) When claims must be filed—(1) admitted for permanent residence in the (see 38 U.S.C. 112); General rule. Except as provided in U.S., VA will pay a reduced rate of (C) Burial flags (see § 1.10 of this paragraph (a)(2) of this section, VA must $0.50 for each dollar authorized under chapter); and receive claims for the nonservice- the law, effective on the day he or she (D) Headstones or markers (see connected burial allowance no later no longer satisfies one of these criteria. §§ 38.630 through 38.633 of this than 2 years after the burial of the (4) Verification of status. In the case chapter). veteran. If VA denies a claim for of a veteran or a veteran’s survivor (2) The provisions of §§ 5.631 through nonservice-connected burial allowance, receiving benefits at the full-dollar rate 5.653 do not apply to any of the the claimant has 2 years after the burial under § 5.613, if VA requests evidence programs listed in paragraph (c)(1) of of the veteran to reopen the claim. There of verification of continued eligibility this section. are no other time limitations to file claims for burial benefits under subpart under § 5.613, but does not receive such § 5.631 Deceased veterans for whom VA evidence within 60 days after such J of this part. may provide burial benefits. (2) Correction of character of request, VA will pay a reduced rate of For purposes of providing burial discharge. If a burial benefit was not $0.50 for each dollar authorized under benefits under subpart J of this part, a payable at the time of the death or burial the law, effective as provided in § 5.104. ‘‘veteran’’ is a person who: of the veteran because of the nature of (5) Change of address. If mail to a (a) Had active military service and the veteran’s discharge from service, VA veteran or a veteran’s survivor receiving who was discharged or released under may pay the allowance if competent benefits at the full-dollar rate under conditions other than dishonorable; authority corrects a deceased veteran’s § 5.613 is returned to VA by the U.S. (b) Died during authorized travel to or discharge to reflect a discharge under Postal Service, VA will make reasonable from a period of active duty under conditions other than dishonorable. efforts to determine the correct mailing § 5.29(a)(1); or Claims for the nonservice-connected address. If VA is unable to determine (c) Is entitled to a burial benefit based burial allowance must be filed no later the veteran’s or the veteran’s survivor’s on a specific provision of law. than 2 years after the date that the correct address through reasonable (Authority: 38 U.S.C. 101(2), 2302, 2307) discharge was corrected. efforts, VA will pay a reduced rate of (b) Supporting evidence—(1) General $0.50 for each dollar authorized under § 5.632 Persons who may receive burial rule. In order to pay burial benefits, VA law, effective the first day of the month benefits. must receive all of the following: after the month for which VA last paid VA may grant a claim for burial (i) A claim. benefits. benefits that any person files for a burial (ii) Proof of the veteran’s death in (Authority: 38 U.S.C. 107) expense that is reimbursable under accordance with § 5.500.

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(iii) A statement of account, (Authority: 38 U.S.C. 2301, 2302, 2303(a), (2) If a deceased veteran either served preferably on letterhead or in the form 2307) during wartime (as defined in § 5.20) or of an invoice from the funeral director § 5.635 Reimbursable transportation was discharged or released from active or cemetery owner, showing: The name expenses for a veteran who is buried in a military service for a disability incurred of the deceased veteran; the plot or national cemetery or who died while or aggravated in the line of duty and the interment expenses incurred; the dates hospitalized by VA. following conditions are met: of, and expenses incurred for, services ‘‘Transportation expenses’’ for (i) The remains of the deceased rendered; the expenses incurred for any purposes of §§ 5.639 and 5.644 include, veteran are being held by a State (or a merchandise provided; any credits or but are not limited to, the following political subdivision of a State); and payments received; and the unpaid expenses: (ii) An appropriate official of the State balance. (a) Shipment by common carrier—(1) (or a political subdivision of the State) (iv) A receipt, preferably on letterhead Pickup of remains. Charge for pickup of where the remains are being held directly from the funeral director or remains from place hospitalized or certifies in writing that: cemetery owner, or such person’s place of death but not to exceed the (A) There is no next of kin or other representative, showing by whom usual and customary charge made to the person claiming the remains of the payment was made, and the name of the general public for the same service. deceased veteran; and deceased veteran. Receipts for (2) Shipment. Procuring permit for (B) There are not sufficient resources transportation charges must also show shipment. available in the veteran’s estate to cover the dates of the services rendered. (3) Shipping case. When a box the burial expenses. (v) If an heir files the claim for burial purchased for burial purposes is also (b) Unclaimed veteran’s remains: expenses paid using funds from the used as the shipping case, the amount burial allowance based on service- veteran’s estate or some other deceased payable may not exceed the usual and connected death. Benefits are payable person’s estate, the claim must include customary charge for a shipping case. In under § 5.638 if the requirements of that waivers or evidence of unconditional any such instance, any excess amount section are met. consent from all other heirs, and the would be an acceptable item to be (c) Plot or interment allowance. identity and right of all other persons to reimbursed as a burial expense. Benefits are payable under § 5.645 if the share in that estate must have been (4) Sealing. Expense of sealing outside requirements of that section are met. (d) Burial. When a veteran’s remains established at the time that each such case (tin or galvanized iron), if a vault are unclaimed, the Director of the VA person executed the waiver or gave (steel or concrete) is used as a shipping regional office in the area in which the consent. case and also for burial, an allowance of veteran died will immediately complete (2) Nonservice-connected deaths. In $30 may be made thereon in lieu of a arrangements for burial in a national the case of a veteran whose death was separate shipping case. cemetery or, at his or her option, in a not service connected, VA may establish (5) Hearse to common carrier. cemetery or cemetery section meeting qualifying service based upon evidence Expense of hearse to the point where the requirements of § 5.645(a), if the of service that VA relied upon to grant remains are to be placed on common burial expenses do not exceed the total disability compensation or pension carrier for shipment. amount payable had burial been in a during the veteran’s lifetime, unless (6) Transportation and Federal taxes. national cemetery. there is some other evidence which Expense of transportation by common creates doubt as to the correctness of carrier, including amounts paid as (Authority: 38 U.S.C. 2302(a)) that evidence of service. Federal taxes. Cross Reference: § 5.1, for the (Authority: 38 U.S.C. 2304, 5107(a)) (7) Removal by hearse. Expense of one definition of ‘‘State’’. removal by hearse direct from common § 5.637 [Reserved] § 5.634 Reimbursable burial expenses: carrier plus one later removal by hearse general. to place of burial. Burial Benefits: Allowances & Expenses (b) Transported by hearse.—(1) Paid by VA (a) General rule. The term burial Charges. Charge for pickup of remains expenses as used in subpart J of this part from place hospitalized or place of § 5.638 Burial allowance based on service- means expenses of the funeral, death and charge for one later removal connected death. transportation, and plot or interment of by hearse to place of burial. These (a) General rule. VA will pay a burial a deceased veteran. Generally, VA will charges will not exceed those made to allowance of up to the amount specified reimburse the burial expenses identified the general public for the same services. in 38 U.S.C. 2307 to reimburse a in this subpart as reimbursable, up to (2) Limitation on charges. Payment of claimant for the burial expenses paid for the applicable statutory limit. hearse charges for transporting the a veteran who died as a result of a (b) Non-reimbursable burial expenses. remains over long distances are limited service-connected disability or VA will not reimburse for burial to prevailing common carrier rates when disabilities (as described in § 5.504). expenses incurred for any of the common carrier service is available and Subject to paragraph (c) of this section, following: can be easily and effectively utilized. payment of the service-connected burial (1) Flags. A privately purchased burial (Authority: 38 U.S.C. 2303, 2308) allowance is in lieu of other allowances flag, except when VA was unable to authorized by subpart J of this part. provide a burial flag. § 5.636 Burial of a veteran whose remains (b) Exceptions. VA will not pay the (2) Duplicate items. Any item or are unclaimed. service-connected burial allowance if: service, such as clothing or a casket, (a) Unclaimed veteran’s remains; (1) Disability compensation for the previously provided or paid for by the burial allowance based on nonservice- cause of death is payable only under 38 U.S. Government for burial purposes. connected death. When a veteran’s U.S.C. 1151 (which provides (3) Accessory items. An item or remains are unclaimed, burial compensation where a disability or service that is not necessary or related allowance is payable either: death was caused by VA hospital care, to the funeral, burial, or transportation (1) Under § 5.643, if the requirements medical or surgical treatment, of the deceased veteran. of that section are met; or examination, training and rehabilitation

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services, or compensated work therapy is subject to the limitations set forth in is needed to confirm that the deceased program); or §§ 5.635 (relating to reimbursable would have been entitled prior to death, (2) The basis of the claim for burial transportation expenses) and 5.651 VA will request such evidence. If VA allowance is entitlement to dependency (relating to the effect of contributions by does not receive such evidence within and indemnity compensation under 38 government, public, or private 1 year after the date of the request, the U.S.C. 1318 (which provides for benefits organizations). claim will be denied. for a survivor of certain veterans rated (Authority: 38 U.S.C. 2308) (e) Additional allowances available totally disabled on the date of death as based on nonservice-connected death. if the cause of death were service §§ 5.640–5.642 [Reserved] In addition to the nonservice-connected connected). burial allowance authorized by this § 5.643 Burial allowance based on (c) Additional allowances available nonservice-connected death. section: based on service-connected death. In (1) VA may reimburse for addition to the service-connected burial (a) General rule. VA will pay a burial transportation expenses related to burial allowance authorized by this section: allowance of up to the amount specified in a national cemetery under § 5.639, (1) VA may reimburse for in 38 U.S.C. 2302 to reimburse a but only if entitlement under paragraphs transportation expenses related to burial claimant for the burial expenses paid for (b)(1) through (3) of this section is based in a national cemetery under § 5.639; a veteran described in paragraph (b) of on a claim for or award of disability and this section. Payment of the nonservice- compensation, rather than a claim for or (2) VA may pay the plot or interment connected burial allowance is subject to award of pension; and allowance for burial in a State veterans the applicable further regulations in (2) VA may pay the plot or interment cemetery under § 5.645(a). subpart J of this part. allowance for burial in a State veterans (b) Eligibility. VA will pay a cemetery under § 5.645(a). (Authority: 38 U.S.C. 2307, 2308) nonservice-connected burial allowance Cross Reference: § 5.1, for the under this section for a veteran whose (Authority: 38 U.S.C. 2302, 2304) definition of ‘‘State’’. death was not service connected (as Cross Reference: § 5.1, for the described in § 5.504), that is, was not definition of ‘‘State’’. § 5.639 Transportation expenses for burial the result of a service-connected in a national cemetery. disability or disabilities, when the § 5.644 Burial allowance for a veteran who (a) Eligibility. VA will pay for the deceased veteran on the date of death: died while hospitalized by VA. expense incurred, subject to paragraph (1) Was receiving VA pension or (a) General rule. VA will pay a burial (b) of this section, to transport a disability compensation; allowance of up to the amount specified veteran’s remains for burial in a national (2) Would have been receiving in 38 U.S.C. 2303(a) to reimburse a cemetery if the veteran: disability compensation but for the claimant for the burial expenses paid for (1) Died as the result of a service- receipt of military retired pay; or a veteran described in paragraph (b) of connected disability; (3) Had any of the following claims this section. VA may pay an additional (2) Was receiving service-connected pending: amount for transportation of the remains disability compensation on the date of (i) An original claim for pension or to the place of burial, as described in death; or disability compensation, and the paragraph (d) of this section. VA may (3) Would have been receiving evidence in the claims file on the date pay an additional amount for the burial service-connected disability of death and any evidence received plot, as described in § 5.645. Payment compensation on the date of death, but under paragraph (d) of this section was under this section is subject to the for the receipt of military retired pay or sufficient to grant pension or disability applicable further regulations in subpart nonservice-connected disability compensation effective before the date J of this part. pension. of death; or (b) Eligibility for burial allowance. A (b) Eligibility exceptions. VA will not (ii) A claim to reopen a pension or burial allowance is payable under this provide payment under this section if: disability compensation claim, based on section for a veteran whose death was (1) Disability compensation for the new and material evidence, and the not service connected and who died cause of death is payable only under 38 evidence in the claims file on the date while hospitalized by VA. For purposes U.S.C. 1151 (which provides of the veteran’s death and any evidence of this allowance, a veteran was compensation where a disability or received under paragraph (d) of this hospitalized by VA if the veteran: death was caused by VA hospital care, section was sufficient to reopen the (1) Was admitted to a VA facility (as medical or surgical treatment, claim and grant pension or disability described in 38 U.S.C. 1701(3)) for examination, training and rehabilitation compensation effective before the date hospital, nursing home, or domiciliary services, or compensated work therapy of death. care under the authority of 38 U.S.C. program); or (c) Evidence in the claims file on the 1710 or 1711(a); (2) The basis of the claim for date of the veteran’s death means (2) Was transferred or admitted to a transportation expenses is entitlement evidence in VA’s possession on or non-VA facility (as described in 38 to dependency and indemnity before the date of the deceased veteran’s U.S.C. 1701(4)) for hospital care under compensation under 38 U.S.C. 1318 death, even if such evidence was not the authority of 38 U.S.C. 1703; (which provides for benefits for a physically located in the VA claims file (3) Was transferred or admitted to a survivor of certain veterans rated totally before the date of death. nursing home for nursing home care at disabled on the date of death as if the (d) Requesting additional evidence. If the expense of the U.S. under the cause of death was service connected). the veteran had either an original claim authority of 38 U.S.C. 1720; (c) Amount payable. The amount or a claim to reopen pending on the date (4) Was transferred or admitted to a payable under this section will not of death but the information in the State nursing home for nursing home exceed the cost of transporting the claims file was not sufficient to grant care for which payment is authorized remains to the national cemetery closest pension or disability compensation under the authority of 38 U.S.C. 1741; to the veteran’s last place of residence effective before the date of death, and (5) Died while traveling under proper in which burial space is available, and VA determines that additional evidence prior authorization, and at VA expense,

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to or from a specified place for purpose (i) Persons eligible for burial in a §§ 5.646–5.648 [Reserved] of examination, treatment, or care; or national cemetery; Burial Benefits: Other (6) Was hospitalized by VA pursuant (ii) In a claim based on a veteran to paragraphs (b)(1) through (4) of this dying after October 31, 2000, deceased § 5.649 Priority of payments when there is section but was not at the VA facility at more than one claimant. the time of death and was: members of a reserve component of the (i) On authorized absence that did not Armed Forces not otherwise eligible for (a) Persons who performed services or exceed 96 hours at the time of death; interment in a national cemetery; or provided items. VA will reimburse, (ii) On unauthorized absence for a (iii) In a claim based on a veteran before all other claimants, a claimant who performed services or provided period not in excess of 24 hours at the dying after October 31, 2000, deceased items (including, but not limited to, a time of death; or former members of a reserve component (iii) Absent from the hospital for a burial plot) and who has not been fully of the Armed Forces not otherwise paid for the services or items. period not in excess of 24 hours of eligible for interment in a national combined authorized and unauthorized cemetery who were discharged or (b) Two or more persons used absence at the time of death. personal funds. If two or more claimants (c) Hospitalization in the Philippines. released from service under conditions other than dishonorable. have paid personal funds toward the Hospitalization in the Philippines under burial expenses, VA will divide the 38 U.S.C. 1731, 1732, and 1733 does not (b) Plot or interment allowance applicable burial benefit(s) among such meet the requirements of this section. payable based on burial in other than a claimants in proportion to the share (d) Reimbursement of transportation State veterans cemetery. VA will each paid. expenses. In addition to the burial provide a plot or interment allowance of allowance authorized by this section, (c) Personal funds and veteran’s up to the amount specified in 38 U.S.C. estate. VA will reimburse a claimant VA will reimburse for the expense of 2303(b)(2) to reimburse a claimant who transportation of the remains of a person who used his or her personal funds incurred plot or interment expenses before VA will reimburse the estate of described in paragraph (b) of this relating to the purchase of a burial plot section to the place of burial where the deceased veteran for amounts that for a deceased veteran who was eligible the estate paid toward allowable burial death occurs: for burial in a national cemetery under (1) Within a State; or expenses. 38 U.S.C. 2402 but was not buried in a (2) Within a State but the burial is to (d) Plot or interment allowance. (1) be outside of a State, except that national cemetery or other cemetery An unpaid bill for a burial plot will take reimbursement for the expense of under the jurisdiction of the U.S. and priority in payment of the plot or transportation of the remains will be who: interment allowance over claims for authorized only from the place of death (1) Is eligible for a burial allowance other plot or interment expenses. Any to the port of embarkation, or to the under § 5.643 or § 5.644; remaining balance of the plot or border limits of the U.S. where burial is (2) Was discharged from active interment allowance may then be in Canada or Mexico. military service for a disability incurred applied to the other plot or interment (Authority: 38 U.S.C. 2303, 2307) in or aggravated in the line of duty expenses. Cross Reference: § 5.1, for the (because in such cases, VA will accept (2) Notwithstanding paragraphs (a) definitions of ‘‘nursing home’’ and the official service record as proof of through (c) of this section, VA will ‘‘State’’. eligibility for the plot or interment provide the entire plot or interment allowance and VA will disregard any allowance under § 5.645(a), to an § 5.645 Plot or interment allowance. previous VA determination made in eligible State, or an agency or political (a) Plot or interment allowance for connection with a claim for monetary subdivision of a State, rather than any burial in a State veterans cemetery. VA benefits that the disability was not other claimant for plot or interment will pay the plot or interment allowance incurred or aggravated in the line of allowance. in the maximum amount specified in 38 duty); or (e) Exceptions for waivers. Any U.S.C. 2303(b)(1) to a State, or an agency claimant may waive his or her right to or political subdivision of a State, that (3) Who, at the time of discharge from active military service, had a disability, receive burial benefits in favor of provided a burial plot for a veteran another claimant. However, even if a shown by official service records, which (without regard to whether any other claimant waives his or her right in favor in medical judgment would have burial benefits were provided based on of a particular claimant, VA may not justified a discharge for disability. that veteran) when: pay that the later claimant more than (1) The veteran was eligible for burial (c) Definitions. For purposes of that claimant personally paid toward in a national cemetery under 38 U.S.C. subpart J of this part, plot or burial plot allowable burial expenses. 2402, but was not buried in a national means the final disposal site of the (Authority: 38 U.S.C. 2302, 2307) cemetery or other cemetery under the remains, whether it is a grave, jurisdiction of the U.S.; mausoleum vault, columbarium niche, Cross Reference: § 5.1, for the (2) The State is claiming the plot or or other similar place. Plot or interment definition of ‘‘State’’. interment allowance for burial of the expenses are those expenses associated veteran in a cemetery, or section of a § 5.650 Escheat (payment of burial with the final disposition of the remains cemetery, owned by the State or agency benefits to an estate with no heirs). or subdivision of the State; and are not confined to the acts done (3) The State or agency or political within the burial grounds but may VA will not pay burial benefits when subdivision of the State did not charge include the removal of remains for the payment would escheat (that is, for the expense of the plot or interment; burial or interment. would be turned over to the State because there are no heirs to the estate and (Authority: 38 U.S.C. 501(a), 2303(b)) (4) The state uses the cemetery, or of the person to whom such benefits section of a cemetery solely for the Cross Reference: § 5.1, for the would be paid). interment of any or all of the following: definition of ‘‘State’’. (Authority: 38 U.S.C. 501(a))

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§ 5.651 Effect of contributions by to pay burial benefits under 10 U.S.C. §§ 5.654–5.659 [Reserved] government, public, or private 1481 or to reimburse a person who paid organizations. such expenses under 10 U.S.C. 1482. Subpart K—Matters Affecting the (a) Contributions by government or The deceased veteran may also qualify Receipt of Benefits employer. If a claimant files a claim for for VA burial benefits. Only one of these Bars to Benefits nonservice-connected burial benefits benefits is payable. VA will attempt to and the U.S., a State, any agency or locate the nearest relative or person § 5.660 In the line of duty. political subdivision of the U.S. or of a entitled to reimbursement and will ask (a) Effect of line of duty findings on State, or the employer of the deceased that person to elect between these claims adjudication. Except as provided veteran has paid or contributed to burial benefits. in §§ 5.246 and § 5.247, VA may grant expenses, then VA will reimburse the (d) Effect of payments made to a service connection only for a disability claimant up to the lesser of: designated beneficiary of contract or or death that was incurred or aggravated (1) The allowable statutory amount; or insurance policy. A contract or in the line of duty. (2) The amount of the total burial insurance policy that provides for (b) Definition. Except as provided in expenses minus the amount of burial payment on the death of a veteran to a paragraph (c) of this section, an injury, expenses paid by any or all of the designated beneficiary, who is not the disease, or cause of death was incurred organizations described in this person who actually provided the burial or aggravated ‘‘in the line of duty’’ when paragraph (a). (b) Contributions or payments by any and funeral services, will not bar VA’s that injury, disease, or cause of death other public or private organization. payment of burial benefits to the was incurred or aggravated during a Contributions or payments by any other beneficiary. Payment is not barred even period of active military service and was public or private organization, such as if the organization that issued the not the result of either of the following a lodge, union, fraternal or beneficial contract or policy has the option of actions: organization, society, burial association, making payment directly to the provider (1) The veteran’s willful misconduct or insurance company, will bar payment of the burial and funeral services. under § 5.661; or (2) The veteran’s abuse of alcohol or of nonservice-connected burial benefits (Authority: 38 U.S.C. 2302(b), 2307) drugs under § 5.662. if such benefits would revert to the Cross Reference: § 5.1, for the (c) Exceptions. An injury, disease, or funds of such organization or would definitions of ‘‘political subdivision of cause of death does not meet line of discharge such organization’s obligation the U.S.’’ and ‘‘State’’. duty requirements if it was incurred or without payment. This section does not aggravated at a time that the veteran apply to contributions or payments on § 5.652 Effect of forfeiture on payment of was: the burial expenses made for burial benefits. (1) Avoiding duty by desertion; humanitarian reasons if the organization (a) Forfeiture for fraud. VA will pay (2) Absent without leave, which making the contribution or payment is burial benefits, if otherwise in order, materially interfered with the under no legal obligation to do so. based on a deceased veteran who (c) Burial expenses paid by other performance of military duty; forfeited his or her right to receive (3) Confined under a sentence of agencies of the U.S.—(1) Burial benefits due to fraud under § 5.676. court-martial involving an unremitted allowance when Federal law or However, VA will not pay burial dishonorable discharge; or regulation also provides for payment. benefits to a claimant who participated (4) Confined under sentence of a court VA cannot pay the nonservice- in fraudulent activity that resulted in other than a U.S. military court for a connected burial allowance when any forfeiture under § 5.676. felony under the laws of the jurisdiction Federal law or regulation also (b) Forfeiture for treasonable acts or of such court. specifically provides for the payment of for subversive activity. VA will not pay (d) Weight given service department the deceased veteran’s burial expenses. burial benefits based on a period of findings. A service department finding However, VA will pay the nonservice- service commencing before the date of that an injury, disease, or death connected burial allowance when a commission of the offense where either occurred in the line of duty will be Federal law or regulation allows the the veteran or claimant has forfeited the binding on VA unless the finding is payment of burial expenses using funds right to all benefits except insurance patently inconsistent with the laws due, or accrued to the credit of, the payments under § 5.677, or § 5.678, administered by VA. deceased (such as Social Security because of a treasonable act or benefits), but the law or regulation does subversive activities, unless the offense (Authority: 38 U.S.C. 101(16), 105, 1110, not specifically require such payment. was pardoned by the President of the 1131) In such cases, VA will pay the U.S. Cross Reference: § 5.1, for the difference between the total burial (Authority: 38 U.S.C. 6103, 6104, 6105) definitions of ‘‘drugs’’ and ‘‘willful expenses and the amount paid thereon misconduct’’. § 5.140(b), Determining under such provision, not to exceed the Cross Reference: § 5.1, for the former prisoner of war status, amount specified in 38 U.S.C. 2302. definition of ‘‘fraud’’. (concerning whether the detention or (2) Payment by service department. § 5.653 Eligibility based on status before internment of a former prisoner of war VA will not pay the burial allowance for 1958. was in the line of duty). deaths occurring during active military service or for other deaths where the When any person dies who had a § 5.661 Willful misconduct. service department pays the burial status under any law in effect on (a) Definitions. See § 5.1 for the expenses. December 31, 1957, that afforded definitions of ‘‘willful misconduct,’’ (3) When a veteran dies while entitlement to burial benefits, the burial ‘‘proximately caused,’’ and ‘‘drugs’’. hospitalized. When a veteran dies while allowance will be paid, if otherwise in (b) Effect of willful misconduct hospitalized at the expense of the U.S. order, even though such status does not findings on claims adjudication. (1) VA government (including, but not limited meet the service requirements of 38 may not grant service connection for a to, death in a VA facility), the veteran’s U.S.C. chapter 23. disability or death resulting from injury service department may be authorized (Authority: 38 U.S.C. 2305) or disease proximately caused by the

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veteran’s willful misconduct, and VA an act, or was unable to resist such (c) Alcohol or drug abuse related to, may not pay disability compensation for impulse is a question to be determined or a part of, a service-connected injury disability due to such injury, disease, or in each individual case, based on all or disease. (1) VA may grant service death. This paragraph (b) applies to available lay and medical evidence connection for a disability or death service connection established under pertaining to his or her mental proximately caused by the abuse of any provision of this part, including, but condition at the time of suicide. alcohol or drugs that is secondary to a not limited to, §§ 5.246 and 5.247. It (ii) VA considers the act of suicide or service-connected injury or disease. also applies to compensation awarded a bona fide attempt to be evidence of (2) VA will consider the effect of the under § 5.350. mental unsoundness. Therefore, where abuse of alcohol or drugs in evaluating (2) VA may not grant disability or the evidence shows no reasonable, the severity of a service-connected death pension for any condition adequate motive for suicide, VA will disability under the Schedule for Rating proximately caused by the veteran’s consider the act to have resulted from Disabilities in part 4 of this chapter if willful misconduct. mental unsoundness. competent evidence shows that the (c) Use of alcohol or drugs (iii) Competent evidence showing service-connected disability constituting willful misconduct—(1) circumstances which could lead a proximately caused the abuse of alcohol Alcohol. (i) If a person consumes rational person to self-destruction may or drugs. alcoholic beverages to the point of establish a reasonable, adequate motive (d) Accidental use. The accidental use intoxication and that intoxication for suicide. of prescription or non-prescription proximately causes injury, disease, or (3) Evaluation of evidence. (i) drugs or other substances is not drug death, VA will consider the injury, Competent evidence is necessary to abuse unless the accident was due to disease, or death to have been justify reversal of service department impaired judgment caused by one or proximately caused by willful findings of mental unsoundness where more of the following elements: misconduct. VA’s criteria do not otherwise warrant (1) Alcohol abuse; (ii) Organic diseases and injuries that contrary findings. (2) Drug abuse; or are proximately caused by the chronic (ii) In all instances, reasonable doubt (3) The use of alcohol or drugs use of alcohol as a beverage will not be should be resolved in favor of constituting willful misconduct under considered of willful misconduct origin. supporting a finding of service § 5.661(c), Willful misconduct. However, § 5.662(b), may preclude VA connection (see § 5.249). (Authority: 38 U.S.C. 105(a), 501(a), 1110, from awarding service connection for (e) Venereal disease. VA will not 1131) such diseases or injuries. consider the residuals of venereal Cross Reference: § 5.1, for the (2) Drugs. (i) If a person uses drugs in disease to be the result of willful a manner not legally prescribed to the definitions of ‘‘drugs,’’ ‘‘proximately misconduct. Whether the veteran caused,’’ and ‘‘willful misconduct’’. point of intoxication and that complied with service regulations and intoxication proximately causes injury, directives for reporting the disease and § 5.663 Homicide as a bar to benefits. disease, or death, VA will consider the undergoing treatment is immaterial after (a) Definitions. The following injury, disease, or death to have been November 14, 1972, and the service proximately caused by willful definitions apply to this section: department characterization of (1) Excuse means that the death was misconduct. acquisition of the disease as willful (ii) Organic diseases that are caused by a person who was insane at misconduct or as not in the line of duty proximately caused by the chronic use the time of the act causing the death. will not govern. of drugs and infections coinciding with (2) Homicide means intentionally (f) Weight to be given to service the injection of drugs will not be causing the death of a person, without department findings. A service considered of willful misconduct origin. excuse or justification. Homicide department finding that willful However, VA may be precluded by includes causing the death of the person misconduct did not proximately cause § 5.662(b) from awarding service directly or abetting someone else in injury, disease, or death will be binding connection for such diseases. causing the death. (iii) The use of drugs as directed for on VA unless it is clearly and (3) Justification means that there was therapeutic purposes is not willful unmistakably inconsistent with the facts a lawful reason for causing the death, misconduct. and the laws administered by VA. including, but not limited to, acting in (iv) The use of drugs proximately (Authority: 38 U.S.C. 105, 501(a), 1110, 1131, self-defense or in defense of another caused by a service-connected disability 1151, 1521) person, as provided in paragraph (c) of is not willful misconduct. this section. § 5.662 Alcohol and drug abuse. (d) Suicide constituting willful (b) Homicide as a bar to benefits. VA misconduct—(1) General rule. (i) If an (a) Definitions.—(1) Alcohol abuse will not award pension, disability act of self-destruction is intentional, it means the consumption of alcoholic compensation, or dependency and constitutes willful misconduct. beverages over time, or excessive use at indemnity compensation (including (ii) A person of unsound mind is any one time. benefits under 38 U.S.C. 1318), or any incapable of forming an intent (mens (2) Drug abuse means the intentional increase in those benefits, to which the rea, or guilty mind, which is an use of drugs for a purpose other than person responsible for the homicide essential element of crime or willful their medically intended use or in a would otherwise be entitled because of misconduct). manner not prescribed or directed. the death of the person slain. (iii) In order for a death resulting from (b) Service connection for alcohol or (c) Self-defense, or defense of another. suicide to be service connected, the drug abuse. Except as provided in A killing is justified as having been precipitating mental unsoundness be paragraph (c) of this section, VA will committed in self-defense or defense of service connected. not deem an injury or disease incurred another if the evidence establishes that (2) Evidence of mental condition. (i) during active military service to have the killer reasonably believed that: Whether a person, at the time of suicide, been incurred in the line of duty if the (1) He or she, or another person, was was so unsound mentally that he or she abuse of alcohol or drugs proximately in immediate danger of death or serious did not realize the consequences of such caused such injury or disease. bodily harm from the deceased;

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(2) There was no way to escape or entitled as if the parent who committed (i) The person committing the fraud retreat in order to avoid the danger of the homicide did not exist. was not residing or domiciled in a State death or serious bodily harm; and (5) Homicide of one claimant or at the time of the commission of the (3) The action causing the death was beneficiary by another claimant or fraud; necessary to avoid the danger of death beneficiary. If a VA claimant or (ii) The person committing the fraud or serious bodily harm. beneficiary commits homicide of ceased to be a resident of or domiciled (d) Effect of court of law proceeding another VA claimant or beneficiary, the in a State before expiration of the period on VA finding of homicide—(1) person who committed the homicide during which criminal prosecution Conviction. Subject to the requirement cannot receive any increase in benefits could be instituted; or of intent in paragraph (a) of this section, based on the death of the victim. For (iii) The fraud was committed in the VA will accept a court of law conviction example, if both beneficiaries are Philippine Islands. of homicide as binding. children of a deceased veteran, the child (2) Effect of forfeiture for fraud. Any (2) Other situations. In all other who committed the homicide is not person for whom forfeiture for fraud is situations, including those in which a entitled to any increase in benefits found forfeits all rights to benefits court acquitted the person of criminal based on the death of the deceased provided under this part. The forfeiture charges or reversed the conviction on child. If one of the veteran’s parents is applies to both current and future appeal and the person has not been responsible for the homicide of the benefit entitlement. retried, VA will determine whether the other parent, the parent who committed (3) Effect on dependents of forfeiture evidence clearly and unmistakably the homicide is not entitled to receive for fraud—(i) Apportionment. After demonstrates that the person committed benefits, or an increase in benefits, September 1, 1959, VA may not or abetted the commission of the based on being a sole surviving parent. apportion benefits forfeited for fraud. homicide, as defined in paragraph (a) of (6) Homicide and accrued benefits. (ii) Death benefits. See paragraph (d) this section. VA pays accrued benefits to various of this section. (e) Effect of court of law proceeding classes of claimants (for example, a (iii) Burial benefits. See § 5.652. on VA finding of insanity at time of child). VA ranks these classes in order (4) Effective date of forfeiture. See killing. VA will accept as binding a of priority for payment of benefits. See § 5.681. court’s determination that a person was § 5.551. The homicide of a person who (5) Suspension for fraud. When a case insane at the time of the killing. In other is a member of a higher priority class by is recommended for forfeiture for fraud cases, if insanity is alleged, VA will a person in a lower priority class will in accordance with § 5.679, VA will determine whether the person was not entitle the wrongdoer to such suspend payment of benefits, effective insane. benefits. The homicide of one member the first day of the month after the (f) Effect of homicide on eligibility for of a class by a person in the same class month for which VA last paid benefits. death benefits—(1) General rule. The will not entitle the wrongdoer to an If VA ultimately decides that forfeiture general rule is that VA will make increased share of the benefits payable is not appropriate, VA will restore payments to eligible innocent to the members of that class because of payments effective the day benefits were beneficiaries as if the person who the death of the person slain. suspended, if otherwise in order. committed the homicide did not exist. (Authority: 38 U.S.C. 501(a)) (c) Forfeiture before September 2, (2) Homicide of a veteran by the 1959—(1) Forfeitures continue to bar veteran’s spouse. If a veteran’s spouse Cross Reference: § 5.1, for the benefits. Any forfeiture in effect before commits homicide of the veteran, VA definitions of ‘‘custody of a child’’ and September 2, 1959, continues to bar will pay benefits to the veteran’s eligible ‘‘insanity’’. benefits on and after September 2, 1959, child as if there were no surviving §§ 5.664–5.674 [Reserved] except where there is a Presidential spouse. pardon for commission of the offense(s) (3) Homicide of veteran by the Forfeiture and Renouncement of the leading to the forfeiture, or where VA veteran’s child. The following rules Right to VA Benefits revokes the forfeiture under § 5.680. apply if a veteran’s child commits § 5.675 General forfeiture provisions. (2) Effect on a dependent of forfeiture homicide of the veteran: for fraud—(i) Apportionment of (i) VA will pay to the veteran’s (a) Forfeiture does not bar benefits disability compensation—(A) When surviving spouse any additional benefits based on later periods of service. payable. Disability compensation a to which the spouse is entitled on Forfeiture of benefits based on one veteran forfeited for fraud may be paid account of that child, if the surviving period of service does not affect to the veteran’s spouse, child, or parent spouse has actual or constructive entitlement to benefits based on a later if the forfeiture was found before custody of the child. period of service that begins after the September 2, 1959, and if VA (ii) If the surviving spouse does not commission of the offense(s) that caused authorized the apportionment before have actual or constructive custody of the forfeiture. September 2, 1959. the child, VA will pay death benefits to (b) Violation of hospital rules not (B) Amount that VA may apportion. the eligible surviving spouse as if the grounds for forfeiture. Pension or The total apportioned amount is the child did not exist. disability compensation benefits are not lesser of the service-connected death (iii) VA will pay death benefits to any subject to forfeiture because of violation benefit that would be payable if the other child of the veteran (including of hospital rules. veteran were dead or the amount of apportionments of benefits based on the (Authority: 38 U.S.C. 501(a), 6103–6105) disability compensation that VA would veteran’s death) as if the child who have paid to the veteran but for the committed the homicide did not exist. § 5.676 Forfeiture for fraud. forfeiture. (4) Homicide of a veteran by the (a) Definition of fraud. See § 5.1. (C) Participation in the fraud bars veteran’s parent. If a veteran’s parent (b) Forfeiture for fraud after apportionment. VA may not apportion commits homicide of the veteran, VA September 1, 1959—(1) Persons subject benefits forfeited for fraud to any will pay to the veteran’s other parent to forfeiture. After September 1, 1959, dependent who participated in the fraud any benefits to which he or she is forfeiture for fraud will be found only if: that caused the forfeiture.

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(ii) Death benefits. See paragraph (d) (5) Suspension for treasonable acts. (B) The specified death benefits were of this section. When a case is recommended for authorized before September 2, 1959; (3) Revocation. See § 5.680(c). consideration of forfeiture for and (d) Death benefits—(1) Veteran’s treasonable acts in accordance with (C) The payee of the specified death fraud does not bar a dependent’s death § 5.679, VA will suspend payment of benefits did not participate in the benefits. Forfeiture of a veteran’s benefits, effective the first day of the treasonable acts that caused the benefits for fraud does not bar the award month after the month for which VA forfeiture. of death pension, death compensation, last paid benefits. If VA ultimately (d) Effect of a child’s treasonable act or dependency and indemnity decides that forfeiture is not on the benefits of a surviving spouse. compensation to an eligible dependent. appropriate, VA will restore payments Treasonable acts committed by a child (2) Dependent’s participation in fraud effective the day benefits were in the surviving spouse’s custody do not bars death benefits. VA may not pay suspended, if otherwise in order. affect the spouse’s award of additional death benefits to any surviving (c) Forfeiture before September 2, death benefits for that child. dependent who participated in the fraud 1959—(1) Forfeitures continue to bar (e) Presidential pardons. See § 5.682. benefits. Any forfeiture in effect before that caused the forfeiture of the (Authority: 38 U.S.C. 501(a), 6103(d)(1), veteran’s benefits. September 2, 1959, continues to bar 6104) (e) Presidential pardons. See § 5.682. benefits after September 1, 1959, except where there is a Presidential pardon for Cross Reference: § 5.1, for the (Authority: 38 U.S.C. 501(a), 6103) commission of the offense(s) leading to definitions of ‘‘custody of a child’’ and Cross Reference: § 5.1, for the the forfeiture, or where VA revokes the ‘‘State’’. § 5.679, Forfeiture decision definitions of ‘‘fraud’’ ‘‘State’’. § 5.679, forfeiture under the provisions of procedures. Forfeiture decision procedures. § 5.680. § 5.678 Forfeiture for subversive activity. (2) Effect on a dependent of a § 5.677 Forfeiture for treasonable acts. forfeiture for treasonable acts—(i) (a) Definition of subversive activity. (a) Definition of treasonable acts. For Apportionment of forfeited benefits— ‘‘Subversive activity’’ is any of the purposes of this section, ‘‘treasonable (A) When payable. If forfeiture for following offenses for which the United acts’’ are acts of mutiny, treason, treasonable acts was found before States Code prescribes punishment: sabotage, or rendering assistance to an September 2, 1959, and if VA (1) Title 10, Armed Forces (Uniform enemy of the U.S. or its allies. authorized the apportionment before Code of Military Justice). (b) Forfeiture for treasonable acts after September 2, 1959, VA may pay any (i) Section 894 (Art. 94, Mutiny or September 1, 1959—(1) Persons subject part of the forfeited benefits to a sedition). to forfeiture. After September 1, 1959, dependent of the person who forfeited (ii) Section 904 (Art. 104, Aiding the forfeiture for treasonable acts will be benefits, as follows: enemy). found only where: (B) Amount of disability (iii) Section 906 (Art. 106, Spies). (i) The person committing the compensation that may be apportioned. (2) Title 18, Crimes and Criminal treasonable act was not residing or If the forfeited benefit is disability Procedure. domiciled in a State at the time of the compensation, the total amount payable (i) Section 792, Harboring or commission of the treasonable act; to a veteran’s spouse, child, and parent concealing persons. (ii) The person committing the is the lesser of the service-connected (ii) Section 793, Gathering, treasonable act ceased to be a resident death benefit that would be payable if transmitting, or losing defense of or domiciled in a State before the veteran were dead or the amount of information. expiration of the period during which disability compensation that would (iii) Section 794, Gathering or criminal prosecution could be have been paid to the veteran but for the delivering defense information to aid instituted; or forfeiture. foreign government. (iii) The treasonable act was (C) Amount of pension that VA may (iv) Section 798, Disclosure of committed in the Philippine Islands. apportion. If the forfeited benefit is classified information. (2) Effect of a forfeiture for pension, the total amount payable to a (v) Section 2381, Treason. treasonable acts. Any person for whom veteran’s spouse and child is the lesser (vi) Section 2382, Misprision of forfeiture for treasonable acts is found of the nonservice-connected death treason. after September 1, 1959, forfeits all benefit that would be payable if the (vii) Section 2383, Rebellion or rights to benefits provided under this veteran were dead or the amount of insurrection. part. The forfeiture applies to both pension being paid to the veteran at the (viii) Section 2384, Seditious current and future benefit entitlement. time of the forfeiture. conspiracy. (3) Effect on dependents of a (D) Participation in the treasonable (ix) Section 2385, Advocating forfeiture for treasonable acts. After acts bars apportionment. VA may not overthrow of Government. September 1, 1959, VA has no authority apportion benefits forfeited for (x) Section 2387, Activities affecting to make either of the following awards treasonable acts to any dependent of a armed forces generally. to a dependent of a veteran who beneficiary who participated in the (xi) Section 2388, Activities affecting forfeited benefits for treasonable acts: treasonable acts that caused the armed forces during war. (i) An apportionment award of the forfeiture. (xii) Section 2389, Recruiting for forfeited benefits; or (ii) Death benefits. VA may pay death service against U.S. (ii) An award of benefits provided pension, death compensation, or (xiii) Section 2390, Enlistment to under this part to the veteran’s dependency and indemnity serve against U.S. dependent based on a period of the compensation to an eligible surviving (xiv) Chapter 105, Sabotage. veteran’s active military service that dependent of a veteran who forfeited (3) Title 18, Crimes and Criminal began before the date of commission of benefits for a treasonable act if all of the Procedure—claims filed after December the treasonable acts. following elements are true: 15, 2003. With respect to the forfeiture (4) Effective date of forfeiture. See (A) The forfeiture was found before of benefits awarded on the basis of § 5.681. September 2, 1959; claims filed after December 15, 2003,

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the following offenses in Title 18 are (iv) Effect on dependent. VA may not person’s latest address of record and also subversive activities: award benefits provided under this part will include the following information: (i) Section 175, Prohibitions with to the dependent of a veteran who was (1) The specific charges against the respect to biological weapons. convicted of subversive activity after person; (ii) Section 229, Prohibited activities. September 1, 1959, if the award would (2) A detailed statement of the (iii) Section 831, Prohibited be based on a period of the veteran’s evidence supporting the charges (subject transactions involving nuclear active military service that began before to regulatory limitations on disclosure materials. the date of commission of the of information); (iv) Section 1091, Genocide. subversive activity. (3) A citation and discussion of the (v) Section 2332a, Use of certain (c) Presidential pardons—(1) applicable statute; weapons of mass destruction. Restoration of forfeited benefits. See (4) The right to file a statement or (vi) Section 2332b, Acts of terrorism § 5.682. evidence no later than 60 days after the transcending national boundaries. (2) Restoration of benefits for a date of the notice, either to rebut the (4) Title 42, The Public Health and surviving dependent. Upon application charges or explain the person’s position; Welfare. following Presidential pardon for the (i) Section 2272, Violation of specific offenses leading to forfeiture for (5) The right to request a hearing no sections. subversive activity, VA may pay a later than 60 days after the date of the (ii) Section 2273, Violation of veteran’s dependent death pension, notice, with representation by counsel sections. death compensation, or dependency and of the person’s choosing; and (iii) Section 2274, Communication of indemnity compensation, if the (6) Information that fees for Restricted Data. dependent is otherwise eligible for that representation are limited in accordance (iv) Section 2275, Receipt of benefit. with 38 U.S.C. 5904, Recognition of Restricted Data. agents and attorneys generally, and that (Authority: 38 U.S.C. 501(a), 6105) (v) Section 2276, Tampering with VA will not pay expenses incurred by Restricted Data. § 5.679 Forfeiture decision procedures. a claimant, his or her counsel, or (5) Title 50, War and National (a) Officials authorized to make a witnesses. Defense. Section 783, Offenses. forfeiture decision, recommend (c) Standards for forfeiture—(1) (b) Indictment or conviction for forfeiture, or refer forfeiture cases—(1) Forfeiture upon conviction of engaging subversive activity—(1) Sources of Forfeiture decisions. Forfeiture in subversive activity. An official notification. The Secretary of Defense or decisions will be made by an official authorized under § 5.5 will make a the Secretary of Homeland Security, as authorized under § 5.5. decision to forfeit benefits when applicable, notifies VA in each case in (2) Recommendation of forfeiture. The notified that a VA beneficiary has been which a person is convicted of an Regional Counsel of the region of the convicted of an offense involving offense listed in paragraph (a)(1) of this residence of the person or of the agency subversive activity. section. The Attorney General notifies of original jurisdiction having (2) Forfeiture for engaging in fraud or VA in each case in which a person is jurisdiction over the person who is the treasonable acts. An official authorized indicted or convicted of an offense subject of the forfeiture (or in the under § 5.5 will make a forfeiture listed in paragraphs (a)(2) through (5) of Philippines, the Manila Veterans decision when the official determines this section. Service Center Manager (VSCM)), may that the evidence shows beyond a (2) Indictment—(i) VA action on recommend forfeiture and submit the reasonable doubt that a VA claimant or notice of indictment. Upon receipt of case to an official described in beneficiary has engaged in fraud as notice of the return of an indictment for paragraph (a)(1) of this section. defined in § 5.676(a) or one or more subversive activity, VA will suspend (3) Referral of forfeiture cases. The treasonable acts as defined in § 5.677(a). payment of benefits provided under this following persons may refer cases to the (d) Administrative appeal. An part to the person indicted pending Regional Counsel or VSCM in Manila, as authorized VA official may file an disposition of the criminal proceedings. appropriate, for consideration whether administrative appeal of a forfeiture VA will suspend payments effective the to recommend the case for forfeiture: decision under the provisions in § 19.51 first day of the month after the month (i) The director of a Veterans Benefits of this chapter. for which VA last paid benefits. Administration service; (e) Finality of forfeiture decisions. (ii) VA action on notice of acquittal. (ii) The Chairman, Board of Veterans’ Forfeiture decisions are final and If the person indicted for subversive Appeals; or binding under the provisions in activity is acquitted or otherwise not (iii) The General Counsel. § 5.160(a); § 20.1103 of this chapter, or convicted, VA will restore payments (b) VA obligations prior to § 20.1104 of this chapter, as applicable. effective the day benefits were recommending forfeiture based on fraud suspended, if otherwise in order. or treasonable acts. Before (Authority: 38 U.S.C. 501(a), 512(a), 6103, (3) Conviction—(i) VA action on recommending forfeiture for fraud or 6104) notice of conviction. Upon receipt of treasonable acts under paragraph (a) of Cross Reference: § 5.1, for the notice that a VA beneficiary was this section, the Regional Counsel or, in definitions of ‘‘agency of original convicted after September 1, 1959, of Manila, Philippines, the VSCM must jurisdiction,’’ ‘‘final decision,’’ and subversive activity, VA will make a provide the beneficiary or claimant with ‘‘fraud.’’ decision on forfeiture as provided in written notice that VA is proposing to § 5.679(c)(1). make a forfeiture decision and of the § 5.680 Revocation of forfeiture. (ii) Benefits forfeited. Any person right to present a defense. No (a) Authority to make revocation convicted of subversive activity forfeits recommendation of forfeiture will be decisions. Revocations of forfeiture all rights to benefits provided under this made until at least 60 days after the decisions will be made by an official part. The forfeiture applies to both notice is sent, or until a hearing is held authorized under § 5.5(b). current and future benefits. if one is requested within the period (b) Bases for revocation. VA will (iii) Effective date of forfeiture upon specified in paragraph (b)(5) of this revoke a forfeiture in only the following conviction. See § 5.681(b)(3). section. The notice will be sent to the cases:

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(1) Upon a showing that the forfeiture not warranted. VA will restore § 5.683 Renouncement of benefits. decision was the product of clear and payments effective the first day of the (a) Who may renounce a benefit. A unmistakable error under § 5.162; month after the month for which VA person entitled to receive disability (2) Upon the submission of new and last paid benefits, if otherwise in order, compensation, pension, or dependency material evidence under § 5.55; or if VA decides that forfeiture is not and indemnity compensation (DIC) (3) When a forfeiture for fraud was appropriate. under the laws administered by VA may imposed before September 2, 1959, as (b) Effective dates of forfeiture—(1) renounce his or her right to any benefit. provided in paragraph (c) of this Forfeiture for fraud. A forfeiture of (b) How to renounce a benefit. The section. benefits for fraud is effective the later of renouncement of the right to receive a (c) Special rules for revocation of a the effective date of the award of the benefit must be in writing and must be forfeiture for fraud imposed before forfeited benefits or the day before the signed by the person entitled to that September 2, 1959—(1) Basis for commission of the act resulting in benefit, and not by a representative. The revocation. If a forfeiture for fraud was forfeiture. renouncement must be for the entire imposed before September 2, 1959, and (2) Forfeiture for treasonable acts. A benefit, not a portion of it. that forfeiture would not be imposed forfeiture of benefits for treasonable acts under the statutes and regulations in (c) Effective date of renouncement. is effective the earlier of the date of the effect on and after September 2, 1959, VA will discontinue payment of forfeiture decision or the first day of the then VA will revoke the forfeiture. renounced benefits effective the first (2) Effective dates—(i) Effective date month following the month for which day of the month following the month of revocation. Revocation of a forfeiture VA last paid benefits. in which VA received the under paragraph (c)(1) of this section is (3) Forfeiture for subversive activity. A renouncement. If payments had been effective June 30, 1972. forfeiture of benefits for conviction for suspended, VA will discontinue (ii) Effective date of payments. Upon subversive activity is effective the later payment of renounced benefits effective receipt of an application, VA will award of the effective date of the award of the the first day of the month after the benefits under paragraph (c)(1) of this forfeited benefits or the day before the month for which VA last paid benefits. section effective as of the date provided commission of the subversive activity (d) Effect of renouncement of DIC on by § 5.152. for which the beneficiary was convicted. the rights of another beneficiary—(1) (3) Deduction of apportionment (Authority: 38 U.S.C. 5112(a), (b)(9); 6105) Effect on another beneficiary in the payments—(i) Applicability. This same class. The renouncement of DIC paragraph (c) applies when all of the Cross Reference: § 5.1, for the by one person entitled to that benefit following elements are true: definition of ‘‘fraud’’. does not increase the rate payable to any (A) VA revoked a forfeiture under § 5.682 Presidential pardon for offenses other DIC beneficiary in the same class. paragraph (c)(1) of this section; causing forfeiture. For example, the renouncement of DIC (B) During the period of time that the (a) Restoration of rights to benefits. If by one child will not increase the DIC forfeiture was in effect, VA apportioned the President of the U.S. pardons the rate payable to another child. some or all of the forfeited benefits to offenses that were the basis of a (2) Effect of renouncement by a the beneficiary’s dependent as provided forfeiture decision, VA will restore surviving spouse on rights of a child. in § 5.676(c)(2), Forfeiture for fraud; and The renouncement of DIC by a surviving (C) The revocation results in rights to all forfeited benefits effective the date of the pardon, if otherwise in spouse does not entitle a child under payments being due to the beneficiary age 18 to DIC, or increase the DIC rate for periods during which VA paid the order. (b) Effective date of resumption of payable to a child over age 18. apportionment to the beneficiary’s (e) Reapplying for renounced dependent. payment of monetary benefits. Once VA has restored the beneficiary’s rights benefits—(1) General rules. (i) A person (ii) Deduction. VA will reduce the who renounced the right to receive a payments to the beneficiary by the under paragraph (a) of this section, VA will resume payment of forfeited VA benefit may reapply for the same benefit amount of apportioned benefits paid to at any time. VA will treat the new the beneficiary’s dependent during the monetary benefits, if otherwise in order, as follows: application as an original claim. period stated in paragraph (c)(3)(i)(C) of (ii) Except as otherwise provided in this section. (1) If an application is filed no later than 1 year after the date of the pardon, paragraph (e)(2) of this section, the (Authority: 38 U.S.C. 501(a), 6103(d)(2)) VA will restore payments effective the effective date of the award of benefits Cross Reference: § 5.1, for the date of the pardon; or resulting from the new application will definition of ‘‘fraud’’. (2) If an application is filed more than be the date of receipt of that application. (2) Special rule applicable to pension § 5.681 Effective dates: Forfeiture. 1 year after the date of the pardon, VA will restore payments effective the date and parents’ DIC benefit (a) Suspension upon recommendation of receipt of the application. renouncements. If a person who has of forfeiture for fraud or treasonable renounced pension or parents’ DIC acts—(1) Suspension on (c) Payment subject to recovery of overpayments. Payment of VA monetary benefits files a new application for the recommendation for forfeiture. VA will same benefit no later than 1 year after suspend payment, effective the first day benefits, following Presidential pardon of the offenses that were the basis of a renouncement, the application will not of the month after the month for which be treated as an original application and VA last paid benefits, upon receipt of forfeiture decision, is subject to recovery of any existing overpayments. the benefit will be payable as if VA notice from a VA Regional Counsel, or never received the renouncement. from the Veterans Service Center (d) Discontinuance of (Authority: 38 U.S.C. 501(a), 5112(a), 5306) Manager in Manila, Philippines, when apportionments. VA will discontinue such an official recommends forfeiture any benefits apportioned to a dependent Cross Reference: § 5.83(c)(4) for fraud or treasonable acts pursuant to under § 5.676(c)(2)(i), or § 5.677(c)(2)(i), (concerning when VA will send a § 5.679. effective the day before the date of the contemporaneous notice of reduction, (2) Restoration of payments where pardon. discontinuance, or other adverse forfeiture for fraud or treasonable acts is (Authority: 38 U.S.C. 501(a), 6105(a)) action).

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§§ 5.684–5.689 [Reserved] (4) Parents’ DIC annual rates and circumstances requiring reduction no income limits; or longer exist. Subpart L: Payments and Adjustments (5) The monthly allowance rates (3) Awards to a surviving spouse at to Payments under 38 U.S.C. chapter 18 for children the veteran’s rate for the month of the General Rate-Setting and Payments disabled from spina bifida or with veteran’s death. certain birth defects. (4) Awards that change any § 5.690 Where to find benefit rates and (Authority: 38 U.S.C. 5312(c)) withholding, reduction, or suspension income limits. because of: (c) Calculation of monthly or other (a) Rates of payment. The rates of the (i) Recoupment; pension rates. VA will round down to following payments for benefits and (ii) An offset to collect indebtedness; the nearest dollar the amount of income limitations on qualification for (iii) Receipt of hospital, domiciliary, Improved Pension or Section 306 benefits are available on VA’s public or nursing home care; Pension payable. Web site at http://www.va.gov: (iv) Incompetency; (1) Disability compensation; (Authority: 38 U.S.C. 5123) (v) Incarceration; or (vi) Discontinuance of apportionment. (2) Death compensation; § 5.692 Fractions of one cent not paid. (3) Dependency and indemnity (5) Benefit increases resulting solely compensation; VA will not pay fractions of a cent from the enactment of certain types of (4) Old-Law Pension; when paying any benefit. legislation, including, but not limited to, (5) Section 306 Pension; (Authority: 38 U.S.C. 501(a), 5312(c)(2)) the following: (6) Improved Pension; and (i) Cost-of-living increases for § 5.693 Beginning date for certain benefit disability compensation and DIC for (7) Monthly allowances under 38 payments. U.S.C. chapter 18 for children disabled surviving spouses and children; from spina bifida or with certain birth (a) Definition. For purposes of this (ii) Increases in the maximum annual defects. section, increased award means a pension rate for Improved Pension; (b) Income limits. The income benefit payment increased as a result of: (iii) Increases in the income limits (1) An added dependent; and maximum monthly rate for parents’ limitations for the following benefit (2) An increase in disability or programs are available on VA’s public DIC; disability rating, including, but not (iv) Increases in the monetary Web site at http://www.va.gov: limited to, a temporary increased rating; (1) Old-Law Pension; allowances under 38 U.S.C. chapter 18 (3) A reduction in income; for children disabled from spina bifida (2) Section 306 Pension; (4) An election of Improved Pension or with certain birth defects; and (3) Improved Pension; and under § 5.463, Effective dates of (4) Parents’ dependency and (v) Statutory changes in the criteria Improved Pension elections; for the award of special monthly indemnity compensation. (5) Except as provided in paragraph compensation. (c) Whenever there is an increase in (c)(6) of this section, a temporary total (6) Awards based on temporary total the rates listed in this section, VA will rating under § 4.29 of this chapter; or publish notice in the Federal Register. (6) A temporary total rating under ratings under § 4.29 of this chapter when the entire period of (Authority: 38 U.S.C. 501(a)) § 4.30 of this chapter. (b) Beginning payment date rule. VA hospitalization or treatment, including § 5.691 Adjustments for fractions of will pay benefits identified in this any period of post-hospitalization dollars. paragraph (b) beginning the first day of convalescence, begins and ends within (a) Calculation of adjusted annual the month after the month in which the the same calendar month. In such cases income or annual income. For purposes award or increased award becomes the period of payment will begin on the of entitlement to pension, VA will effective, except as provided in first day of the month in which the round down to the nearest dollar when paragraph (c) of this section. However, hospitalization or treatment began. calculating adjusted annual income. See VA will consider beneficiaries to be in (7) Apportionments of benefits. § 5.370, for the definition of adjusted receipt of monetary benefits as of the (8) Certain awards of disability annual income. For purposes of effective date of the award or increased compensation to a veteran who is also entitlement to parents’ dependency and award. This paragraph (b) applies to eligible for retired pay, as described in indemnity compensation (DIC), VA will awards or increased awards of the paragraph (d)(1) of this section. (9) Awards to a veteran’s dependent round down to the nearest dollar when following benefits based on an original of benefits that the veteran was calculating annual income. See §§ 5.531 claim, reopened claim, or claim for receiving or entitled to receive when the through 5.534 for how to calculate increase: parents’ DIC annual income. (1) Disability compensation; veteran disappeared for 90 days or more. (Authority: 38 U.S.C. 1503(b)) (2) Pension; (3) Dependency and indemnity (10) Certain awards of disability (b) Calculation of increased rates and compensation (DIC); or compensation to a veteran who was income limits. VA will round up to the (4) The monetary allowances under 38 retired or separated for a catastrophic nearest dollar when calculating the U.S.C. chapter 18 for children disabled disability, as described in paragraph (e) increase due to a cost-of-living from spina bifida or with certain birth of this section. adjustment of any of the following defects. (d) Cases involving waiver of retired amounts: (c) Exceptions to beginning payment pay. (1) If the veteran’s retired pay, as (1) Improved Pension maximum date rule. VA will begin payment of defined in § 5.745(a), is greater than the annual pension rates; each of the following awards as of its amount of VA disability compensation (2) Old-Law Pension and Section 306 effective date: payable, VA will pay disability Pension annual income limits; (1) Awards that provide only for compensation from the effective date (3) Income of a spouse when excluded continuity of entitlement with no the veteran waives such retired pay. from a veteran’s countable annual increase in the rate of payment. (2) If the amount of VA disability income for Old-Law Pension and (2) Awards restoring a previously compensation payable is greater than Section 306 Pension purposes; reduced benefit because the the veteran’s retired pay, VA’s payment

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of the difference for any period before compensation or pension that the § 5.696 Payments to or for a child the effective date of the veteran’s waiver veteran would have received for that pursuing a course of instruction at an of such retired pay is subject to the month but for his or her death, then VA approved educational institution. beginning payment date provision of will pay the surviving spouse death (a) Definition of approved educational paragraph (b) of this section. pension or DIC for the month of the institution. For purposes of this section, (3) Nothing in this section precludes veteran’s death in an amount equal to approved educational institution means an institution defined in § 5.220(b)(2) the veteran from receiving retired pay the amount of disability compensation that is approved by the Department of before the effective date of waiver of or pension the veteran would have such pay. Veterans Affairs. (e) Cases involving catastrophic received for that month if not for his or disability. If a veteran was retired or her death. (Authority: 38 U.S.C. 104(a)) separated from the active military (c) Surviving spouse not entitled to (b) Payment of Improved Pension or service for a catastrophic disability or death pension or DIC for the month of additional disability compensation.—(1) disabilities, then VA will pay any death. If a veteran who was receiving Entitlement. If a veteran’s child is at compensation awarded based on an disability compensation or pension dies least 18 but less than 23 years old and original claim as of its effective date as after December 31, 1996, and the is pursuing a course of instruction at an provided in this part. For purposes of surviving spouse is not entitled to death approved educational institution: this section, catastrophic disability pension or DIC for the month of the (i) VA will pay the veteran additional means a permanent, severely disabling veteran’s death, then the surviving disability compensation if the veteran injury, disorder, or disease that spouse is entitled to the month-of-death has service-connected disability rated at compromises the ability of the veteran benefit. If the veteran died before least 30 percent disabling; (ii) VA may pay the veteran a higher to carry out the activities of daily living January 1, 1997, then such veteran’s to such a degree that he or she requires rate of Improved Pension; surviving spouse is not entitled to the personal or mechanical assistance to (iii) VA may pay a surviving spouse month-of-death benefit. leave home or bed, or requires constant a higher rate of Improved Death supervision to avoid physical harm to (d) Payment issued to deceased Pension; or self or others. veteran. If VA issues payment of (iv) VA may pay the child Improved Death Pension if no surviving spouse is (Authority: 38 U.S.C. 501(a), 1832, 5111, compensation or pension to a deceased 5305) veteran for the month of his or her eligible to receive Improved Death death, VA will treat the payment as the Pension or if the surviving spouse does 5.694 Deceased beneficiary. month-of-death benefit payable to a not have custody of the child. See § 5.1, When VA discontinues benefits surviving spouse who is otherwise for the definition of ‘‘custody of a because the beneficiary has died, the eligible for payment under paragraph (b) child’’. (2) Effective date of award of discontinuance will be effective the first of this section. If the surviving spouse Improved Pension or additional day of the month in which the negotiates or deposits the payment disability compensation. (i) Child began beneficiary died. issued to a deceased veteran, then VA (Authority: 38 U.S.C. 1822, 1832, 5112(b)(1)) a course of instruction at an approved will consider the payment to be the educational institution on or before the § 5.695 Surviving spouse’s benefit for the benefit to which the surviving spouse is child’s 18th birthday. If a child began a month of the veteran’s death. entitled under paragraph (b) of this course of instruction at an approved (a) Month-of-death benefit. For section. However, if such payment is educational institution on or before the purposes of this section, month-of-death less than the amount the surviving child’s 18th birthday and VA receives a benefit means a payment to a deceased spouse would receive under paragraph claim on, before, or no later than 1 year veteran’s surviving spouse for the (b) of this section, VA may pay the after the child’s 18th birthday, the month in which the veteran died and in unpaid difference as accrued benefits. effective date will be the child’s 18th the amount of disability compensation See § 5.1 for the definition of ‘‘accrued birthday. or pension that the veteran would have benefits’’. (ii) Child began a course of received for that month, if not for his or (e) When a veteran dies on or after instruction at an approved educational her death. August 6, 2012, the veteran’s surviving institution after the child’s 18th (b) Surviving spouse entitled to death spouse is entitled to the month-of-death birthday. If a child began a course of pension or dependency and indemnity instruction at an approved educational benefit if: (1) The veteran was receiving compensation (DIC) for the month of the institution after the child’s 18th disability compensation or pension veteran’s death. (1) Surviving spouse’s birthday and VA receives a claim no when he or she died; or award greater than veteran’s award. If later than 1 year after the date the child the surviving spouse is entitled to death (2) VA determines under §§ 5.551 began the course, the effective date will pension or DIC for the month of the through 5.555 that the veteran was be the date the child began the course veteran’s death in an amount greater entitled to receive such compensation or of instruction at an approved than the amount of disability pension, or a higher rate of educational institution. compensation or pension that the compensation or pension that the (c) Payment of dependency and veteran would have received for that veterans was receiving when he or she indemnity compensation (DIC) to a month if not for his or her death, then died. If VA determines that the veteran child not receiving DIC before the the surviving spouse is not entitled to a was entitled to a higher rate of child’s 18th birthday. If a child was not month-of-death benefit. compensation or pension than VA had receiving DIC before the child’s 18th (2) Surviving spouse’s award equal to previously paid as a month-of-death birthday, VA will pay DIC directly to or less than veteran’s award. If the benefit to the surviving spouse, then VA the child for periods beginning on or surviving spouse is entitled to death will pay the difference to the surviving after the child’s 18th birthday if the pension or DIC for the month of the spouse. child is entitled to DIC and is pursuing veteran’s death in an amount equal to or a course of instruction at an approved less than the amount of disability (Authority: 38 U.S.C. 5111(c), 5310) educational institution. The effective

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date of the award of DIC will be as (A) The child began the course of (2) Termination of course of follows: instruction on or before the child’s 18th instruction before completion. Except as (1) Child was pursuing a course of birthday; and provided in paragraph (f)(2) of this instruction at an approved educational (B) VA receives evidence of such section, if a course of instruction is institution on the child’s 18th school attendance on, before, or no later terminated before completion, then VA birthday.—(i) Child on a surviving than 1 year after the child’s 18th will discontinue benefits payable under spouse’s award. The effective date will birthday. this section effective the first day of the be the child’s 18th birthday if: (ii) Child began a course of month after the month in which the (A) Immediately before the child’s instruction after the child’s 18th course of instruction was terminated. 18th birthday, the child was a birthday. VA will pay DIC benefits (h) Transfer to another course of dependent on a surviving spouse’s DIC effective the date the child began the instruction or another educational award; course of instruction if: institution. VA will not adjust payments (B) The child began the course of (A) The child began the course of previously made under this section instruction on or before the child’s 18th instruction after the child’s 18th because the child changed a course of birthday; and birthday; and instruction or transferred to a different (C) VA receives a claim for DIC on, (B) VA receives evidence of such approved educational institution. before, or no later than 1 year after the school attendance no later than 1 year (i) Bars to benefit payments under this child’s 18th birthday. after the date the child began the course section. VA will not pay benefits under (ii) Child not on a surviving spouse’s of instruction. this section if: award. The effective date will be the (1) The child has elected to receive (Authority: 38 U.S.C. 5110(e)) first day of the month of the child’s 18th educational assistance under 38 U.S.C. birthday if: Cross Reference: § 5.524, Awards of chapter 35 (see § 5.764 and § 21.3023 of (A) Immediately before the child’s dependency and indemnity this chapter); or 18th birthday, the child was not a compensation benefits to children when (2) The child is pursuing a course of dependent on a surviving spouse’s DIC there is a retroactive award to a instruction at an approved educational award; schoolchild, for the rate of payment. institution where the child is (B) The child began the course of (e) Claims filed outside the 1-year completely supported at the expense of instruction at an approved educational period. If VA receives a claim referred the Federal Government, such as a institution on or before the child’s 18th to in paragraphs (b) or (c) of this section, military service academy. birthday; and or evidence referred to in paragraph (d) (Authority: 38 U.S.C. 501(a), 3562) (C) VA receives a claim for DIC on, of this section, after the expiration of the before, or no later than 1 year after the 1-year period, the effective date will be § 5.697 Exchange rates for income child’s 18th birthday. the date VA receives the claim or received or expenses paid in foreign (2) Child began a course of instruction evidence. currencies. after the child’s 18th birthday. The (f) Payments for vacation or holiday (a) Pension and parents’ dependency effective date will be the first day of the periods.—(1) Child returns to an and indemnity compensation (DIC) month in which the child began the approved educational institution. A rates. In determining the rate of pension course of instruction at an approved child is considered to be pursuing a or parents’ DIC payable to a person, VA educational institution if: course of instruction at an approved will convert the amount of income (i) The child began the course after educational institution during a received or expenses paid in foreign the child’s 18th birthday; and currencies into U.S. dollars using the (ii) VA receives a claim for DIC no vacation or holiday period if the child: (i) Was pursuing a course of quarterly exchange rates established by later than 1 year after the date the child instruction at an approved educational the U.S. Department of the Treasury as began the course. institution immediately before the provided in this section. Benefits will be (Authority: 38 U.S.C. 5110(e)) vacation or holiday period; and paid in U.S. dollars. Cross Reference: § 5.573, Effective (ii) Resumes the course at the (1) Calculation of pension or parents’ date for dependency and indemnity beginning of the next term either at the DIC rates. Because exchange rates for compensation rate adjustments when an same or a different approved foreign currencies cannot be determined additional survivor files an application, educational institution. in advance, VA will estimate pension or for information on the impact on awards (2) Child fails to return to an parents’ DIC rates using the most recent to other children. approved educational institution. When quarterly exchange rate. When the (d) Payment of DIC to a child VA has paid benefits for a vacation or beneficiary or claimant informs VA of a receiving DIC before the child’s 18th holiday period, and the child does not change in income or expenses that birthday.—(1) Entitlement. VA may pay resume the course, VA will discontinue would affect entitlement, VA will make DIC directly to a child for periods benefits effective the first day of the retroactive benefit adjustments based on beginning on or after the child’s 18th month after the month for which VA the exchange rate in effect at the time birthday if: last paid benefits, or the first day of the VA received notice of the change in (i) VA paid DIC to the child before the month that the child was scheduled to income or expenses. child’s 18th birthday; and resume the course, whichever date is (2) Retroactive adjustments due to (ii) The child is pursuing a course of earlier. changes in exchange rates. (i) For instruction at an approved educational retroactive adjustments to pension or (Authority: 38 U.S.C. 5112(b)(7)) institution. parents’ DIC rates due to changes in the (2) Effective dates. The effective date (g) Ending dates.—(1) Course of currency exchange rate, VA will use the for the payment of DIC to the child will instruction completed. If a child average of the four most recent quarterly be as follows: completes a course of instruction, then exchange rates. (i) Child began a course of instruction VA will discontinue benefits payable (ii) If income or expenses are reported on or before the child’s 18th birthday. under this section effective the first day for a prior reporting period, VA will VA will pay DIC effective on the child’s of the month after the month in which calculate any retroactive benefit rate 18th birthday if: the course was completed. adjustment using the average of the four

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most recent quarterly exchange rates expenses paid in foreign currency, VA §§ 5.698–5.704 [Reserved] that were available on the last day of the will calculate the payment amount General Reductions, Discontinuances, reporting period for which the income using the quarterly exchange rate for the and Resumptions is being reported. See § 5.708(a)(2) for quarter in which expenses were paid. If the definition of ‘‘reporting period’’. the U.S. Department of the Treasury has § 5.705 General effective dates for (b) Benefits and funds payable as not yet published a rate for that quarter, reduction or discontinuance of benefits. reimbursement for expenses paid in VA will calculate the payment amount (a) General rules. Except as otherwise foreign currency.—(1) Applicability. using the most recent quarterly provided, VA will assign an effective This paragraph (b) applies to payment of exchange rate. Payments will be made date for the reduction or discontinuance the following benefits or funds: in U.S. dollars. of disability compensation, pension, (i) Monetary burial benefits paid dependency and indemnity under subpart J of this part; (3) Exception. If benefits or funds are compensation (DIC), or the monetary (ii) Accrued benefits paid in payable to an unpaid creditor for allowances under chapter 18 of title 38, accordance with § 5.551(e), as charges billed in foreign currency, VA United States Code, in accordance with reimbursement to the person who bore will calculate the payment amount the facts found. If more than one the expense of the deceased using the quarterly exchange rate for the effective-date provision applies to a beneficiary’s last sickness or burial; quarter in which the veteran, particular issue or event, VA will reduce (iii) Funds in the special deposit beneficiary, or payee died. If the U.S. or discontinue the benefit(s) on the account paid in accordance with Department of the Treasury has not yet earliest applicable effective date. VA § 5.565(b)(4), as reimbursement to the published a rate for that quarter, VA will pay a reduced rate or discontinue person who bore the expense of the will calculate the payment amount benefits effective the date of reduction burial of the payee; using the most recent quarterly or discontinuance. (iv) Funds in a personal-funds-of- exchange rate. Payments will be made (b) Reduction and discontinuance patients account paid in accordance in U.S. dollars. table. The following table lists the with § 5.566(d)(4); and locations of specific reduction and (Authority: 38 U.S.C. 501(a)) (v) Funds paid in accordance with discontinuance effective-date provisions § 5.567(a)(4). in this part 5. The table is solely for (2) General rule. If benefits or funds informational purposes, and does not are payable as reimbursement for confer any substantive rights.

Effective-date provision Part 5 location

SUBPART C—ADJUDICATIVE PROCESS, GENERAL

Filing a claim for death benefits ...... § 5.52. Requirement to provide Social Security numbers ...... § 5.101(c). Failure to report for VA examination or reexamination ...... § 5.103(d). Certifying continuing eligibility to receive benefits ...... § 5.104(c). Effective dates based on change of law or VA issue ...... § 5.152(c). Effective dates for reducing or discontinuing a benefit payment, or for severing service connection, based on omission or § 5.167. commission, or based on administrative error or error in judgment. Effective dates for reducing or discontinuing a benefit payment or for severing service connection ...... § 5.177.

SUBPART D—DEPENDENTS AND SURVIVORS

Effective date of reduction or discontinuance based on changes in dependency status ...... § 5.184. Void or annulled marriages ...... § 5.196. Effective date of reduction or discontinuance of Improved Pension, disability compensation, or dependency and indem- § 5.197. nity compensation due to marriage or remarriage. Effect of remarriage on a surviving spouse’s benefits ...... § 5.203. Effective date of reduction or discontinuance: child reaches age 18 or 23 ...... § 5.231. Effective date of reduction or discontinuance: terminated adoptions ...... § 5.232. Effective date of reduction or discontinuance: stepchild no longer a member of the veteran’s household ...... § 5.233. Effective date of an award, reduction, or discontinuance of benefits based on child status due to permanent incapacity § 5.234. for self-support.

SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION

Effective dates—discontinuance of total disability rating based on individual unemployability ...... § 5.313. Effective dates—reduction or discontinuance of additional disability compensation based on parental dependency ...... § 5.314. Effective dates: additional compensation for regular aid and attendance payable for a veteran’s spouse under § 5.321 .... § 5.336(b).

SUBPART F—NONSERVICE-CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS

Effective dates of changes to annual Improved Pension payment amounts due to a change in income ...... § 5.422. Improved Pension determinations when expected annual income is uncertain ...... § 5.423. Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the vet- § 5.433. eran’s surviving spouse. Award or discontinuance of award of Improved Death Pension to a surviving spouse where Improved Death Pension § 5.434. payments to a child are involved. Effective dates for discontinuances of Old-Law Pension and Section 306 Pension ...... § 5.477.

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Effective-date provision Part 5 location

SUBPART G—DEPENDENCY AND INDEMNITY COMPENSATION, DEATH COMPENSATION, ACCRUED BENEFITS, AND SPECIAL RULES APPLICABLE UPON DEATH OF A BENEFICIARY

Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a § 5.524(c). schoolchild. Discontinuance of dependency and indemnity compensation to a person no longer recognized as the veteran’s surviving § 5.539(b). spouse. Effective date and payment adjustment rules for award or discontinuance of dependency and indemnity compensation to § 5.540. a surviving spouse where payments to a child are involved. Effective date of reduction of a surviving spouse’s dependency and indemnity compensation due to recertification of pay § 5.541. grade. Effective date of reduction or discontinuance based on increased income: parents’ dependency and indemnity com- § 5.543. pensation. Dependency and indemnity compensation rate adjustments when an additional survivor files a claim ...... § 5.544(b). Effective dates of awards and discontinuances of special monthly dependency and indemnity compensation ...... § 5.545(b).

SUBPART H—SPECIAL AND ANCILLARY BENEFITS FOR VETERANS, DEPENDENTS, AND SURVIVORS

Awards of benefits based on special acts or private laws ...... § 5.581(d), (e). Effective dates of awards for a disabled child of a Vietnam or Korea veteran ...... § 5.591(b).

SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS

Effective dates of reductions and discontinuances for benefits at the full-dollar rate for a Filipino veteran and his or her § 5.618. survivor.

SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS

Effective dates: forfeiture ...... § 5.681. Presidential pardon for offenses causing forfeiture ...... § 5.682(d). Renouncement of benefits ...... § 5.683(c).

SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS

Deceased beneficiary ...... § 5.694. Payments to or for a child pursuing a course of instruction at an approved educational institution ...... § 5.696(b)–(g). Eligibility verification reports ...... § 5.708(e). Adjustment in benefits due to reduction or discontinuance of a benefit to another payee ...... § 5.710(b). Payment to dependents due to the disappearance of a veteran for 90 days or more ...... § 5.711(d). Suspension of benefits due to the disappearance of a payee ...... § 5.712. Restriction on benefit payments to an alien located in enemy territory ...... § 5.713. Reduction of special monthly compensation based on the need for regular aid and attendance while a veteran is receiv- § 5.720(b), (e), (f). ing hospital, domiciliary, or nursing home care. Resumption of special monthly compensation based on the need for regular aid and attendance after a veteran is on § 5.721(a). temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. Adjustment of Improved Pension while a veteran is receiving domiciliary or nursing home care ...... § 5.722(a), (d), (f), (g). Adjustment of Improved Pension while a veteran, surviving spouse, or child is receiving Medicaid-covered care in a § 5.723(b), (c). nursing facility. Adjustment or discontinuance of Improved Pension based on the need for regular aid and attendance while a veteran is § 5.724(a), (c), (d). receiving hospital, domiciliary, or nursing home care. Resumption of Improved Pension and Improved Pension based on the need for regular aid and attendance after a vet- § 5.725(a), (c). eran is on temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. Reduction of Section 306 Pension while a veteran is receiving hospital, domiciliary, or nursing home care ...... § 5.726(a), (d). Reduction of Old-Law Pension while a veteran is receiving hospital, domiciliary, or nursing home care ...... § 5.727(a), (c). Reduction of Old-Law Pension or Section 306 Pension based on the need for regular aid and attendance while a vet- § 5.728(a), (c). eran is receiving hospital, domiciliary, or nursing home care. Resumption of Section 306 Pension and Section 306 Pension based on the need for regular aid and attendance during § 5.729(a), (d). a veteran’s temporary absence from hospital, domiciliary, or nursing home care or after released from such care. Resumption of Old-Law Pension and Old-Law Pension based on the need for regular aid and attendance after a veteran § 5.730(a). is on temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. General effective dates for awarding, reducing, or discontinuing VA benefit benefits because of an election ...... § 5.743(b). Prohibition against receipt of active military service pay and VA benefits for the same period ...... § 5.746(c). Effect of payment of compensation under the Radiation Exposure Compensation Act of 1990 on payment of certain VA § 5.754(d). benefits. Payment of multiple VA benefits to a surviving child based on the service of more than one veteran ...... § 5.762(c)(6)(ii). Payment of Survivors’ and Dependents’ Educational Assistance and VA death pension or dependency and indemnity § 5.764. compensation for the same period.

SUBPART M—APPORTIONMENTS TO DEPENDENTS AND PAYMENTS TO FIDUCIARIES AND INCARCERATED BENEFICIARIES

Effective date of reduction or discontinuance of apportionment ...... § 5.783. Determinations of incompetency and competency ...... § 5.790(f). Incarcerated beneficiaries—general provisions and definitions ...... § 5.810(f).

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(Authority: 38 U.S.C. 501(a), 1832, 5112) need. These benefits are Improved included in the regulations that deal Pension, Section 306 Pension, Old-Law with that specific benefit. § 5.706 Payments excluded in calculating (b) Specific payments excluded. The income or net worth. Pension, parents’ dependency and indemnity compensation (DIC), and following table states whether certain (a) Scope. This section lists payments additional amounts of veterans’ payments are included or excluded as excluded by Federal statutes from compensation payable for dependent income or net worth for any VA- income and net worth determinations parents. Income and net worth rules administered benefit program that is when VA determines eligibility for applying solely to a specific benefit are based on financial need. This table does benefits that are based on financial not confer any substantive rights.

Program or payment Income Net worth Authority

COMPENSATION OR RESTITUTION PAYMENTS

(1) Relocation payments. Payments to persons displaced as a Excluded ...... Included 42 U.S.C. 4636. direct result of programs or projects undertaken by a Federal agency or with Federal financial assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. (2) Crime victim compensation. Amounts received as com- Excluded ...... Excluded 42 U.S.C. 10602(c). pensation 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 persons of Japanese ancestry. Payments Excluded ...... Excluded 50 U.S.C. App. 1989b–4(f). made as restitution under Pub. L. 100–383 to a person of Japanese ancestry who was interned, evacuated, 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 persons. (4) Victims of Nazi persecution. Payments made to persons be- Excluded ...... Excluded Sec. 1(a), Pub. L. 103–286, cause of their status as victims of Nazi persecution. 108 Stat. 1450, 42 U.S.C. 1437a note. (5) Agent Orange settlement payments. Payments made from Excluded ...... Excluded Sec. 1, Pub. L. 101–201, 103 the Agent Orange Settlement Fund or any other fund estab- Stat. 1795. lished 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. Allowances paid under 38 U.S.C. chap- Excluded ...... Excluded 38 U.S.C. 1833(c). ter 18 to a veteran’s child with a birth defect.

PAYMENTS TO NATIVE AMERICANS

(7) Indian judgment fund distributions. First $2,000 of income re- Excluded ...... Excluded 25 U.S.C. 1407. ceived by individual Indians under 25 U.S.C. 1407(1)–(4). (8) Interests of individual Indians in trust or restricted lands. In- First $2,000 per year Excluded Excluded 25 U.S.C. 1408. come received by individual Indians that is derived from interests in trust or restricted lands. (9) Submarginal land. Income derived from certain submarginal Excluded ...... Excluded 25 U.S.C. 459e. land of the U.S. that is held in trust for certain Indian tribes.. (10) Old Age Assistance Claims Settlement Act. First $2,000 Excluded ...... Excluded 25 U.S.C. 2307. per capita distributions under the Old Age Assistance Claims Settlement Act. (11) Alaska Native Claims Settlement Act. Any of the following, Excluded ...... Excluded 43 U.S.C. 1626(c). if received from a Native Corporation, under the Alaska Na- tive 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. (12) Maine Indian Claims Settlement Act. Payments received Excluded ...... Excluded 25 U.S.C. 1728. under the Maine Indian Claims Settlement Act of 1980.

WORK-RELATED PAYMENTS

(13) Workforce investment. Allowances, earnings, and payments Excluded ...... Included 29 U.S.C. 2931(a)(2). to persons participating in programs under the Workforce In- vestment Act of 1998 (29 U.S.C. chapter 30).

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Program or payment Income Net worth Authority

(14) AmeriCorps participants. Allowances, earnings, and pay- Excluded ...... Included 42 U.S.C. 12637(d). ments to AmeriCorps participants under the National and Community Service Act of 1990. (15) Volunteer work. Payments to volunteers involved in pro- Excluded ...... Excluded 42 U.S.C. 5044(f). grams administered from the Corporation for National and Community Service, unless the payments are equal to or greater than the minimum wage. The minimum wage is either under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et. seq.) or under the law of the State where the volunteers are serving, whichever is greater.

MISCELLANEOUS PAYMENTS

(16) Food stamps. Value of the allotment provided to an eligible Excluded ...... Excluded 7 U.S.C. 2017(b). household under the Food Stamp Program. (17) Food for children. Value of free or reduced price for food Excluded ...... Excluded 42 U.S.C. 1780(b). under the Child Nutrition Act of 1966. (18) Child care. Value of any child care provided or arranged (or Excluded ...... Excluded 42 U.S.C. 9858q. any amount received as payment for such care or reimbursement for costs incurred for such care) under the Child Care and Development Block Grant Act of 1990. (19) Services for housing recipients. Value of services, but not Excluded ...... Excluded 42 U.S.C. 8011(j)(2). wages, provided to a resident of an eligible housing project under a congregate services program under the Cranston- Gonzalez National Affordable Housing Act. (20) Home energy assistance. The amount of any home energy Excluded ...... Excluded 42 U.S.C. 8624(f). assistance payments or allowances provided directly to, or in- directly for the benefit of, an eligible household under the Low-Income Home Energy Assistance Act. (21) Programs for older Americans. Payments, other than Excluded ...... Included 42 U.S.C. 3020a(b). wages or salaries, received from programs funded under the Older Americans Act of 1965 (42 U.S.C. chapter 35). (22) Student financial aid. Amounts of student financial assist- Excluded ...... Excluded 20 U.S.C. 1087uu, 2415(a). ance received under Title IV of the Higher Education Act of 1965, including Federal work-study programs or under Bureau of Indian Affairs student assistance programs, or vocational training under the Carl D. Perkins Vocational and Technical Education Act of 1998. (23) Retired Serviceman’s Family Protection Plan annuities. An- Excluded ...... Included 10 U.S.C. 1441. nuities received under subchapter 1 of the Retired Service- man’s Family Protection Plan. (24) Medicare Prescription Drug Discount Card and Transitional Excluded ...... Excluded 42 U.S.C. 1395w–141(g)(6). Assistance Program.

(Authority: 38 U.S.C. 501(a)) person provides health care. The term health care provider authorized to write includes, but is not limited to, prescriptions directs a person to take. § 5.707 Deductible medical expenses. physicians, registered nurses, licensed (3) Adaptive equipment. Payments for (a) Scope. This section describes the vocational nurses, and licensed adaptive devices or companion animals medical expenses that VA will deduct practical nurses. used to assist a person with an ongoing from countable income for purposes of disability, to the extent that a non- three of VA’s benefit programs based on (c) Medical expenses—general. If disabled person would not normally financial need: Improved Pension, there is more than one way to categorize make such payments. Section 306 Pension, and parents’ a medical expense under this paragraph dependency and indemnity (c), VA will categorize it in the way that (4) Transportation expenses. compensation (DIC). is most favorable to the claimant or Payments for transportation for medical Cross References: For the rules beneficiary. The following payments are purposes, including transportation to governing how such medical expenses medical expenses that will be deducted and from a licensed health care are deducted, see §§ 5.413, Income from income if they are not reimbursed: provider’s office. VA will deduct the full cost of parking, taxi, bus, or other deductions for calculating adjusted (1) Care by a licensed health care annual income, (regarding Improved transportation. However, VA limits the provider. Payments for diagnosis, Pension), 5.474, Deductible Expenses deductible expense per mile for travel treatment, rehabilitation, or preventive for Section 306 Pension Only, and 5.532 by private vehicle to the amount stated maintenance (such as an annual Deductions from income for parent’s on VA Form 21–8416, Medical Expense physical examination) provided by a dependency and indemnity Report. That form may be obtained at licensed health care provider. compensation. http://www.va.gov. (b) Definition of licensed health care (2) Medical supplies and medications. (5) Health insurance premiums. provider. For purposes of this section, Payments for prescribed medication and Payments for health, medical, and the term licensed health care provider legal non-prescription medication, as hospitalization insurance premiums. means a person licensed to provide well as medically necessary food, This category includes Medicare health care in the state in which the beverages, and vitamins that a licensed premiums.

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(6) Institutional forms of care and in- (vi) Adult day care, rest homes, group during the current or previous calendar home attendants.—(i) Nursing home homes. Payments to an adult day care year; or care. Payments to a facility that facility, rest home, group home, or (C) The Secretary decides completion provides extended term inpatient similar facility, if the facility provides of an EVR is necessary to ensure medical care, if a responsible official of some medical or nursing care to the accurate and timely reporting of changes the facility certifies that the person is a person. The care need not be provided in the factors that affect entitlement or patient (as opposed to a resident) in the by a licensed health care provider. One to protect the pension and parents’ DIC facility. of the following conditions must be met: programs from fraud. (ii) In-home attendant. Payments for (A) The person needs regular aid and (c) Action VA takes upon receipt of an in-home attendant for the personal attendance or is housebound; or information or of an EVR. When VA care of a person and maintenance of the (B) A licensed physician has certified receives new information in an EVR or person’s immediate environment, if the that the person needs the care provided through other means, VA may attendant is also providing some by the facility. reconsider entitlement, adjust the medical or nursing care. The following amount of benefits paid, or request (Authority: 38 U.S.C. 501(a), 1315(f)(3), provisions also apply: 1503(a)(8)) additional information, as appropriate. (A) If the person needs regular aid and Cross Reference: §§ 5.423(a); 5.531(e); attendance or is housebound, then the § 5.708 Eligibility verification reports. and 5.478(a), Time limit to establish attendant need not be a licensed health (a) Definitions. (1) An eligibility continuing entitlement to Old-Law care provider. verification report (EVR) is a form used Pension or Section 306 Pension (B) Except as provided in paragraph to obtain information from claimants (regarding the action VA takes when (c)(6)(ii)(C) of this section, if the person and beneficiaries about factors that may expected annual income exceeds neither needs of regular aid and affect entitlement to pension or parents’ income limits for Old-Law Pension or attendance nor is housebound, then the dependency and indemnity Section 306 Pension). attendant must be a licensed health care compensation (DIC). See § 5.709(b). (d) Action VA takes when a claimant provider. (2) A reporting period is a period does not return a completed EVR. If VA (C) If the person is neither a surviving established by VA for which a claimant does not receive a completed EVR spouse nor a veteran and a physician or beneficiary reports income, within 60 days after the date VA has stated that the person requires the adjustments to income, and net worth to requested the EVR from a claimant, VA level of medical or nursing care VA. will deny the claim. (e) Action VA takes when a provided by the in-home attendant, then (b) Circumstances when VA may the attendant need not be a licensed beneficiary does not return a completed require completion of an EVR. As a EVR.—(1) Failure to return an EVR. If health care provider. condition of receipt or continued receipt (iii) Veterans in State homes. VA does not receive an EVR within 60 of benefits, claimants or beneficiaries of Payments to a State home, such as a days after the date VA requested the pension or parents’ DIC must, file a veterans’ or soldiers’ and sailors’ home EVR from a beneficiary, VA will completed EVR upon VA’s request in operated by a State, if: immediately suspend future benefit the following circumstances: (A) The veteran is a patient (as payments. opposed to a resident) in the State (1) EVRs for claimants. VA may (2) Return of an incomplete EVR. If home; and require a claimant to file a completed VA receives an incomplete EVR no later (B) The veteran is receiving hospital, EVR when necessary to update, than 60 days after the date VA requested domiciliary, or nursing home care in the complete, or clarify information the EVR from a beneficiary, VA will State home. regarding the claimant’s income or notify the beneficiary of the additional (iv) Custodial care. Payments for marital status or any other factor that information needed to complete the custodial care (including room and affects entitlement. EVR. If VA does not receive a completed board), nursing care, and medical (2) EVRs for beneficiaries. (i) Annual EVR within 120 days after the date VA treatment to an institution that houses EVRs. VA may require a beneficiary to first requested the EVR, then VA will and maintains a person because the file a completed EVR annually. immediately suspend future benefit person needs to live in a protected Note to paragraph (b)(2)(i): VA does not payments. environment. One of the following require the following beneficiaries to file (3) Discontinuance for failure to conditions must be met: EVRs annually: a beneficiary in receipt of return a completed EVR. A beneficiary (A) The person needs regular aid and Old-Law Pension or Section 306 Pension, a whose benefits were suspended under attendance or is housebound; or beneficiary in receipt of Improved Pension paragraph (e)(1) or (2) of this section (B) A licensed physician has certified whose only income is Social Security must return the completed EVR no later that the person needs to live in a benefits, or a parent who has reached age 72 and has been receiving parents’ DIC for 2 than 1 year after the date VA first protected environment because of a consecutive calendar years. requested the EVR. Otherwise, VA will medical condition. discontinue benefits as follows: (v) Custodial care in a government (ii) Other circumstances. VA may (i) If the reporting period is the initial institution. Payments to a government require a beneficiary to file a completed reporting period, the effective date of institution that houses and maintains a EVR if: discontinuance is the first day of that person because the person needs to live (A) The Social Security period; or in a protected environment. One of the Administration has not verified the (ii) If the reporting period is a following conditions must be met: social security number of the subsequent reporting period, the (A) A licensed physician has certified beneficiary or, if applicable, the effective date of discontinuance is the that the person needs to live in a beneficiary’s spouse; first day of the calendar year for which protected environment because of a (B) Evidence suggests that the VA requested the beneficiary provide medical condition; or beneficiary or, if applicable, the the information in the EVR. (B) The person is participating in a beneficiary’s spouse or child, may have (f) Action VA takes when a physician-supervised program of received income from sources other beneficiary returns an EVR after benefits therapy or rehabilitation. than the Social Security Administration were suspended or discontinued. If VA

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suspended or discontinued benefits beneficiary or former beneficiary who compensation (DIC) must promptly under paragraph (e) of this section, then owes or owed money to VA because VA notify VA of any material change in a VA will resume payments (if otherwise discontinued payments for failure to file factor that affects entitlement to the in order) as follows: an EVR within the time limit in benefit that they are claiming or (1) If VA receives the completed EVR paragraph (e)(3) of this section may file receiving. VA may request any no later than 1 year after the end of the the EVR at any time to reduce or information or evidence that is reporting period for which VA eliminate a debt. If, based on necessary to determine whether the requested the beneficiary provide the information in the EVR, VA decides that person is entitled (or continues to be EVR, then VA will resume payment of the beneficiary or former beneficiary entitled) to a benefit. See § 5.708, benefits as follows: was entitled to benefits for any part of Eligibility verification reports, (i) Payments suspended but not the period for which VA discontinued (explaining the circumstances when VA discontinued. If payments were payment for failure to file an EVR, VA will require an eligibility verification suspended but not discontinued, will reduce the debt accordingly. If the report). effective the date of suspension. debt is eliminated, VA will not pay (b) Table of factors affecting (ii) Payments discontinued. If additional benefits for that period. payments were discontinued, effective entitlement to pension or parents’ DIC. the date of discontinuance. (Authority: 38 U.S.C. 501(a), 1315(e), 1506) The following table lists factors that (2) If VA receives the completed EVR often change and that affect entitlement § 5.709 Claimant and beneficiary to pension or parents’ DIC. The table is more than 1 year after the end of the responsibility to report changes. reporting period, VA will treat the EVR intended solely for informational as a new claim. (a) General rule. Claimants and purposes. It does not list every factor (g) VA will accept the EVR at any time beneficiaries of pension or parents’ that could affect entitlement to pension to reduce or eliminate a debt. A dependency and indemnity or parents’ DIC.

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(Authority: 38 U.S.C. 501(a); 1315; 1521(b), entitled to receive disability (D) For each dependent, multiply the (c), and (h); 1522; 1541(b), (c), and (g); 1542; compensation, Section 306 Pension, or result from paragraph (b)(1)(ii)(C) of this 1543; sec. 306, Pub. L. 95–588, 92 Stat. 2497) Improved Pension disappears for 90 section by the veteran’s rate. § 5.710 Adjustment in benefits due to days or more, VA will pay the benefit (E) For each dependent, round the reduction or discontinuance of a benefit to to the veteran’s dependent(s) as final result down to the nearest dollar. another payee. provided in this section. VA will pay (2) Effective date of payments.—(i) (a) Effect of reduction or dependents under this section only if Claim received no later than 1 year after discontinuance of a payee’s benefit. If a the veteran’s whereabouts are unknown payee becomes entitled to pension, to the dependent(s) and to VA and VA VA last paid the veteran. If VA receives disability compensation, or dependency receives a claim from the dependent(s). a claim no later than 1 year after the first and indemnity compensation, or an (2) Definition. For purposes of this day of the month after the month for increase in such a benefit because VA section, entitled to receive means that which VA last paid compensation to the reduced or discontinued payment of the VA has granted a claim for one of the veteran, then payments to the veteran’s same benefit to another payee, then VA benefits listed in paragraph (a)(1) of this dependent(s) will be payable effective will pay the award or increase without section but has not yet paid the veteran. the first day of the month after the the filing of a new claim, except as (b) Veteran receiving or entitled to month for which VA last paid provided in paragraph (b)(2)(ii) of this receive disability compensation. If the compensation to the veteran. section. veteran was receiving or entitled to (ii) Claim more than 1 year after VA (b) Effective dates.—(1) Sufficient receive disability compensation, VA last paid the veteran. If VA receives a information and evidence available. If may pay it to the veteran’s spouse, claim more than 1 year after the first day child, or dependent parent. there is sufficient information and of the month after the month for which evidence for VA to award or increase (1) Rate payable. The total rate that VA will pay the veteran’s dependent(s) VA last paid compensation to the the payee’s benefit, then the effective veteran, payments to the veteran’s date of the award or increase is the day is the lesser of either the total rate of dependency and indemnity dependent(s) will be payable effective of the reduction or discontinuance of the date VA receives the claim. the benefit to the other payee. compensation (DIC) that would be (2) Insufficient information and payable if the veteran had died from a (c) Veteran receiving or entitled to evidence. If there is not sufficient service-connected disability or the rate receive pension. If the veteran was information or evidence for VA to award of disability compensation (minus any receiving or entitled to receive Section or increase the payee’s benefit, then VA authorized insurance deductions) the 306 Pension or Improved Pension, VA will request additional information or veteran would have received or been may pay benefits to the veteran’s spouse evidence. entitled to receive at the time of or child. The veteran’s permanent and (i) If VA receives the information or disappearance. If there is a dependent total disability status, income, and net evidence no later than 1 year after the parent, then the rate for parents’ DIC worth will be presumed to continue date of VA’s request, then VA will may vary depending on the parent’s unchanged. award or increase the payee’s benefit annual income. (i) Disability compensation paid at (1) Rate payable. The total rate that and pay the appropriate rate effective VA will pay the veteran’s dependent(s) the day of the reduction or DIC rate. If VA pays disability is the lesser of the total rate of Improved discontinuance of the benefit to the compensation at the DIC rate pursuant Death Pension that would be payable if other payee. to this paragraph (b), then it will pay (ii) If VA does not receive the benefits to the dependents as if the the veteran had died of a non-service- information or evidence within 1 year veteran were deceased. connected disability or the rate of after the date of VA’s request, then the (ii) Disability compensation paid at pension the veteran would have payee must file a new claim. The veteran’s rate. If VA pays disability received or been entitled to receive at effective date of the award or increase compensation at the veteran’s rate the time of disappearance. will be the date VA receives the new pursuant to this paragraph (b), then it (i) Pension paid at Improved Death claim. will pay benefits in proportion to the Pension rate. If VA pays pension at the (c) Rate payable. The rate for the DIC rate for each dependent. VA will Improved Death Pension rate pursuant person who becomes entitled pursuant use the following steps in calculating to this paragraph (c), then it will pay to this section will be the rate that each dependent’s payment rate: benefits to the dependents as if the would have been payable if he or she (A) Determine the DIC rate for each veteran were deceased. had been the only original person dependent. entitled. (B) Combine those rates together to (ii) Pension paid at veteran’s rate. If VA pays pension at the veteran’s rate (Authority: 38 U.S.C. 501(a)) determine the total rate of DIC that would be payable. pursuant to this paragraph (c), then it § 5.711 Payment to dependents due to the (C) For each dependent, divide the will pay benefits in proportion to the disappearance of a veteran for 90 days or rate in paragraph (b)(1)(ii)(A) of this Improved Death Pension rate for each more. section by the rate in paragraph dependent. VA will use the following (a) General rule.—(1) Entitlement. (b)(1)(ii)(B) of this section. Calculate the steps in calculating each dependent’s When a veteran who is receiving or result to four decimal places. payment rate:

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(A) Determine the Improved Death (b) Resumption of suspended benefits. delivered with reasonable assurance Pension rate for each dependent. If VA has suspended payment of that the payee will receive the check (B) Combine those rates together to benefits under paragraph (a) of this and be able to negotiate it for full value. determine the total rate of Improved section, VA will resume payments if VA (b) Evidence requests. Unless a Death Pension that would be payable. becomes aware of the payee’s claimant or payee who is living in a (C) For each dependent, divide the whereabouts. The effective date of country on the Treasury Department list rate in paragraph (c)(1)(ii)(A) of this payments will be the first day of the first requests the alternative means of section by the rate in paragraph month for which VA suspended delivery described in paragraph (d) of (c)(1)(ii)(B) of this section. Calculate the payments if entitlement is otherwise this section, VA will not request result to 4 decimal places. established. Retroactive payments to a evidence in support of a claim for (D) For each dependent, multiply the veteran under this paragraph (b) will be benefits if such evidence would be result from paragraph (c)(1)(ii)(C) of this reduced by the amount of any payments obtained from a country on the Treasury section by the veteran’s rate. made to the veteran’s dependents under Department list. (E) For each dependent, round the § 5.711. (c) Restriction on check delivery. VA final result down to the nearest dollar. will not send benefit checks to a payee (2) Effective date of payments.—(i) (Authority: 38 U.S.C. 501(a)) located in a country on the Treasury Claim received no later than 1 year after § 5.713 Restriction on benefit payments to Department list or to a guardian or other VA last paid the veteran. If VA receives an alien located in enemy territory. person in the U.S. or a territory or a claim no later than 1 year after the first (a) Restriction on payment. VA will possession of the U.S. who is legally day of the month after the month for discontinue all benefits except responsible for the care of a payee which VA last paid pension to the insurance payments to an alien who is located in a country on the Treasury veteran, payments to the veteran’s located in the territory of either an Department list. dependent(s) will be payable effective enemy of the U.S. or in the territory of (d) Alternative delivery permitted. If the first day of the month after the an enemy of any ally of the U.S. in requested by a payee located in a month for which VA last paid pension territory that is under the military country on the Treasury Department to the veteran. control of either an enemy of the U.S. list, VA will send benefit checks to him (ii) Claim received more than 1 year or an enemy of any ally of the U.S. VA after VA last paid the veteran. If VA or her in care of a U.S. Foreign Service will discontinue benefits to an alien post, specified by the payee, in a receives a claim more than 1 year after located in territory described in this the first day of the month after the country that is not on the Treasury paragraph (a), effective the first day of Department list. month for which VA last paid pension the month after the month for which VA to the veteran, payments to the veteran’s (e) Disposition of benefit checks. If the last paid benefits. payee does not request the alternative dependent(s) will be payable effective (b) Apportionment of benefits. VA the date VA receives the claim. means of delivery described in may apportion to the dependent(s) of an paragraph (d) of this section, VA will (d) Discontinuance of payments to affected alien all or any part of the veteran’s dependent(s).—(1) Veteran’s deposit checks described in paragraph benefits discontinued under paragraph (c) of this section into the special whereabouts become known. If VA (a) of this section. becomes aware of the veteran’s deposit account or into the U.S. (1) The amount payable to each Treasury as miscellaneous receipts, as whereabouts, VA will discontinue dependent may not exceed the amount payments to the veteran’s dependent(s) required by 31 U.S.C. 3329(b) and that would be payable to the dependent 3330(b). effective the first day of the month after if the alien had died. the month for which VA last paid Cross Reference: § 5.715, Claims for (2) VA will discontinue payments to undelivered or discontinued benefits. benefits to the veteran’s dependent(s). the dependent(s) effective the date it (2) Veteran presumed dead. VA will receives notice that the alien is no (Authority: 31 U.S.C. 3329, 3330) discontinue payments to the veteran’s longer located in territory described in dependent(s) if the veteran is presumed § 5.715 Claims for undelivered or paragraph (a) of this section. discontinued benefits. dead under § 5.502. The date of the (3) VA will reduce or discontinue (a) Definitions. For the definitions of veteran’s death is presumed to be 7 payments to the dependent(s) upon the ‘‘special deposit account’’ and years after the date the veteran was last death of the alien or dependent, upon ‘‘Treasury Department list’’, see known to be alive. See § 5.694 for the reduction or discontinuance of the § 5.714(a). effective date for discontinuance of alien’s benefits, or when dependent (b) Claims for undelivered or benefits based on the death of a status ends. beneficiary. Cross Reference: § 5.715, Claims for discontinued benefits. (1) Unless a payee requests the alternative means of (Authority: 38 U.S.C. 1158, 1507) undelivered or discontinued benefits. delivery under § 5.714(d), the payee § 5.712 Suspension of benefits due to the (Authority: 38 U.S.C. 5112(a), 5308) must file a claim with VA in order to be disappearance of a payee. § 5.714 Restriction on delivery of benefit entitled to: (a) Suspension of benefits. When a payments to payees located in countries on (i) Any amounts not paid because payee’s whereabouts are unknown, VA Treasury Department list. awarded benefits were discontinued will suspend payment of pension, (a) Definitions. For purposes of this under § 5.713; disability compensation, dependency part: (ii) Resumption of benefits and indemnity compensation, the (1) Special deposit account means the discontinued under § 5.713; or monetary allowance under 38 U.S.C. ‘‘Secretary of the Treasury, Proceeds of (iii) Any undelivered benefit chapter 18 for children disabled from Withheld Foreign Checks’’ account payments deposited to the payee’s spina bifida or with certain birth established under 31 U.S.C. 3329(b)(4). credit in the special deposit account or defects, or other monetary allowances (2) Treasury Department list means into the U.S. Treasury as miscellaneous effective the first day of the month after the list of countries identified by the receipts as described in § 5.714(e). the month for which VA last paid Secretary of the Treasury in 31 CFR (2) Undelivered amounts will be benefits to the payee. 211.1, to which checks cannot be released or a discontinued benefit

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restored retroactively or resumed only Note to paragraphs (a)(1) and (2): When (1) Discontinuance of special monthly if: multiple types of care are referred to compensation under § 5.332. VA will (i) For a payee whose benefits were consecutively (for example, ‘‘hospital, discontinue SMC paid under § 5.332. discontinued under § 5.713, the payee is domiciliary, or nursing home care’’), VA will For purposes of this paragraph (c)(1), no longer subject to the restriction in consider transfers between the different types hospital care means treatment in any of care as a continuous period of all such § 5.713(a); care. VA will not consider a transfer between hospital, including a private hospital, at (ii) For a payee whose benefit checks different types of care (hospital, domiciliary, U.S. Government expense. The were withheld under § 5.714, the payee or nursing home care) to be a discharge or discontinuance required by this is no longer subject to the restriction in release under §§ 5.720 through 5.730. paragraph (c)(1) is made only for § 5.714(c); or hospital care; it is not made for (3) Regular discharge or release means (iii) For a payee whose benefit checks domiciliary or nursing home care. VA a veteran, surviving spouse, or child is were withheld under § 5.714, the payee will also make a reduction under discharged or released at the order of a requests the alternative means of paragraph (c)(3) of this section, if the medical professional based on that delivery described in § 5.714(d). veteran’s circumstances meet any of professional’s opinion that there is no those criteria. (Authority: 31 U.S.C. 3329) medical reason to continue care. (2) Reduction of special monthly (4) Irregular discharge or release (c) Forfeiture for treasonable acts. compensation under §§ 5.324 and 5.331. means a veteran, surviving spouse, or Benefits are subject to forfeiture for VA will reduce the following payments child is discharged or released for any treasonable acts as provided in § 5.677. to the rate payable under § 5.333: (d) Evidence requests. Subject to of the following reasons: (i) Special monthly compensation § 5.90, VA may request evidence (i) Refusal to accept treatment; paid at the rate under § 5.324 if necessary to support a claim under this (ii) Neglect of treatment; entitlement is based on the need for (iii) Obstruction of treatment; section. Evidence VA may request regular aid and attendance. includes: (iv) Disciplinary reasons; (ii) Special monthly compensation (1) Satisfactory evidence that the (v) Refusal to accept transfer to paid under § 5.331(d)(1) or (e)(1) payee has not been guilty of mutiny, another facility; because a veteran is entitled to the rate treason, sabotage, or rendering (vi) Leaving the facility against under § 5.324 based on the need for assistance to an enemy; and medical advice; or regular aid and attendance and has been (2) Evidence of continued entitlement (vii) Failure to return from awarded the intermediate or next higher to benefits during the period that VA unauthorized or authorized absence. rate based on additional disability that discontinued benefits or benefit (5) Temporary absence means a is independently ratable. payments were undelivered. veteran, surviving spouse, or child is (3) Reduction of special monthly (Authority: 38 U.S.C. 5308) placed on non-bed care status or compensation under § 5.330(e). Special authorized absence. A temporary monthly compensation paid at the rate (e) Germany and Japan. VA will make absence is not a discharge or release. no payments for any period before the under § 5.330(e), based on the need for When calculating a period of temporary regular aid and attendance will be date of filing a new claim if payments absence, VA includes the day on which were discontinued before July 1, 1954, reduced as follows: the temporary absence begins. (i) If the veteran is entitled to the rate because the payee was a citizen or (b) Adjustment of special monthly subject of Germany or Japan. under § 5.324 both for the need for compensation while receiving hospital, regular aid and attendance and for some (Authority: 38 U.S.C. 5309) domiciliary, or nursing home care. VA other disability or combination of Cross Reference: § 5.565, Special rules will discontinue special monthly disabilities without considering any for payment of benefits on deposit in a compensation (SMC) payable because a disabilities twice, then VA will reduce special deposit account when a payee veteran needs regular aid and the special monthly compensation to living in a foreign country dies. attendance or a higher level of care if the rate payable under § 5.326. the veteran is admitted to hospital, (ii) If the veteran is entitled to the rate (Authority: 31 U.S.C. 3330) domiciliary, or nursing home care and under § 5.324 based on the need for §§ 5.716–5.719 [Reserved] the veteran remains in such care on the regular aid and attendance and is first day of the second calendar month entitled to the rate under § 5.326 Hospital, Domiciliary, and Nursing after the date of admission. In such without considering any disabilities Home Care Reductions and cases, VA will reduce SMC to a rate twice, then VA will reduce the special Resumptions specified in paragraph (c) of this monthly compensation to the rate § 5.720 Adjustments to special monthly section. The effective date of the payable under § 5.328, Special monthly compensation based on the need for reduced rate of SMC will be the first day compensation under 38 U.S.C. 1114(n). regular aid and attendance while a veteran of the second calendar month after the (iii) If the veteran is entitled to the is receiving hospital, domiciliary, or nursing date of admission. However, VA will rate under § 5.324 based on the need for home care make no reduction or discontinuance regular aid and attendance and is (a) Definitions. For purposes of this under this paragraph (b) if: entitled to the rate under § 5.328 section and §§ 5.721 through 5.730: (1) The rate of special monthly without considering any disabilities (1) Hospital care. Except as provided compensation payable would be the twice, then VA will not reduce the SMC in paragraphs (c)(1) and (f)(1) of this same with or without an award for rate payable under § 5.330. section, hospital care means treatment regular aid and attendance; or (4) Reduction of special monthly provided in a VA hospital or provided (2) An exception in paragraph (d) of compensation under § 5.326(i). VA will in any hospital at VA expense. this section applies. reduce SMC paid under § 5.326(i) to the (2) Domiciliary or nursing home care (c) Calculating reduction of the rate of rate payable under § 5.324. means treatment provided in a VA special monthly compensation. If (5) Additional disability domiciliary or nursing home or in any appropriate under paragraph (b) of this compensation based on having domiciliary or nursing home at VA section, VA will reduce a veteran’s SMC dependents. In addition to the rates expense. rate as follows: specified in paragraphs (c)(1) through

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(4) of this section, VA will pay the under § 5.332 while receiving hospital of record shows that a different rate is additional amount of disability care effective on or after the date of required. compensation payable to a veteran for admission into such care, then VA will (Authority: 38 U.S.C. 501(a), 5503) dependents if he or she is entitled to not pay that benefit until the date of disability compensation based on discharge or release from hospital care. § 5.722 Adjustment of Improved Pension disabilities evaluated at 30 percent or This does not affect payments for while a veteran is receiving domiciliary or more disabling. periods prior to admission. For nursing home care. (6) Additional ratings under § 5.323. purposes of this paragraph (f)(1), (a) General provisions.—(1) Veterans In addition to the rates specified in hospital care means treatment in any affected. Except as provided in paragraphs (c)(1) through (4) of this hospital, including a private hospital, at paragraph (b) or (f) of this section, VA section, SMC under § 5.323, based on U.S. Government expense. will reduce Improved Pension paid to a independently ratable disability, is (2) If a veteran becomes entitled to veteran who receives domiciliary or payable subject to the statutory ceiling SMC under any other provision of this nursing home care continuously for 3 on the total amount of compensation part based on the need for regular aid calendar months or who receives such specified in § 5.323(b). and attendance while receiving hospital, care along with hospital care, as (d) Exceptions. Except for the domiciliary, or nursing home care provided in paragraph (e)(2) of this discontinuances required by paragraphs effective on or after the date of section, and who: (c)(1) and (f)(1) of this section, VA will admission into such care, then VA will (i) Does not have a spouse or child; or not reduce or discontinue SMC under pay reduced SMC under paragraphs (ii) Is married or has a child but is this section if the need for regular aid (c)(2) through (4) of this section unless receiving Improved Pension as a veteran and attendance is caused by disability entitlement is based on one of the without dependents. resulting from: exceptions in paragraph (d) of this (2) Rate payable. VA will reduce (1) Loss of use of both lower section. This does not affect payments Improved Pension under this section to extremities and loss of anal and bladder for periods prior to admission. $90 per month. sphincter control; or (3) Effective date of reduction. Except (2) Hansen’s disease. (Authority: 38 U.S.C. 501(a), 5503) as provided in paragraph (f) of this (e) Readmission after discharge or § 5.721 Resumption of special monthly section, a reduction under paragraph release.—(1) Regular discharge or compensation based on the need for (a)(1) of this section will be effective on release. If a veteran is readmitted to regular aid and attendance after a veteran the first day of the fourth calendar hospital, domiciliary, or nursing home is on temporary absence from hospital, month after the month of admission to care after a regular discharge or release, domiciliary, or nursing home care or is domiciliary or nursing home care. VA will consider the readmission to be discharged or released from such care. (b) Exceptions. VA will not reduce a new admission subject to the (a) Temporary absence from hospital, Improved Pension under this section if provisions of paragraph (b) of this domiciliary, or nursing home care. a veteran is: section. (1) Temporary absence for 30 days or (1) Receiving domiciliary or nursing (2) Irregular discharge or release.—(i) more. If a veteran is on temporary home care for Hansen’s disease; Readmission less than 6 months after a absence from hospital, domiciliary, or (2) Maintained in a State soldiers’ period of hospital, domiciliary, or nursing home care for 30 days or more, home; nursing home care. VA will pay a VA will resume any payment reduced or (3) Receiving domiciliary or nursing reduced rate of SMC under paragraph discontinued under § 5.720. The home care in a State home and the only (c) of this section effective on the date effective date of the resumed payment is payment made by VA to the State for the of readmission if all of the following are the date the temporary absence begins. State home is the per diem rate under true: If the veteran returns to hospital, 38 U.S.C. 1741; or (A) SMC is reduced or discontinued domiciliary, or nursing home care, then (4) Receiving pension as a veteran under paragraph (b) of this section; VA will reduce or discontinue special without a dependent because it is (B) The veteran is given an irregular monthly compensation under § 5.720 reasonable that part of his or her child’s discharge or release from hospital, effective the date that the veteran net worth be consumed for the child’s domiciliary, or nursing home care; and returns to such care. maintenance before the child can be (C) The veteran is readmitted to (2) Temporary absence for less than established as a dependent. See hospital, domiciliary, or nursing home 30 days. If a veteran is on temporary § 5.414(e). care less than 6 months after discharge absence from hospital, domiciliary, or (c) Apportionment of benefits to a or release. nursing home care for less than 30 spouse. Improved pension in excess of (ii) Readmission 6 months or more consecutive days, VA will not resume the $90 may be apportioned to the after a period of hospital, domiciliary, any payments reduced or discontinued veteran’s spouse under § 5.772(c)(2)(ii). or nursing home care. If a veteran under § 5.720. If the veteran is later (d) Readmission.—(1) Less than 6 described in paragraph (e)(2)(i)(A) and discharged or released, VA will months after prior period of domiciliary (B) of this section is readmitted to retroactively pay the amounts that were or nursing home care. If a veteran is hospital, domiciliary, or nursing home unpaid during any such temporary readmitted to domiciliary or nursing care 6 months or more after discharge or absence. home care less than 6 months after a release, VA will consider the (b) Discharge or release. If a veteran period of domiciliary or nursing home readmission to be a new admission is discharged or released from hospital, care for which Improved Pension was subject to the provisions of paragraph domiciliary, or nursing home care, VA reduced under this section, VA will (b) of this section. will resume any payment reduced or reduce Improved Pension to $90 per (f) Entitlement to special monthly discontinued under § 5.720 effective the month effective the first day of the compensation based on the need for date the veteran was discharged or month after the month of readmission. regular aid and attendance established released. Payment will be resumed at (2) Six months or more after prior while a veteran is receiving hospital, the rate in effect before the reduction period of domiciliary or nursing home domiciliary, or nursing home care. (1) If based on hospital, domiciliary, or care. If a veteran is readmitted 6 months a veteran becomes entitled to SMC nursing home care, unless the evidence or more after a period of domiciliary or

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nursing home care for which Improved primary purpose for the veteran’s prevented VA from reducing benefits Pension was reduced under this section, continued nursing home care is to during that period. the readmission will be considered a provide a prescribed program of (d) Entitlement to Improved Pension new admission subject to the provisions rehabilitation, under 38 U.S.C. chapter established while a veteran, surviving of paragraph (a) of this section. 17, designed to restore the veteran’s spouse, or child is receiving Medicaid- (e) Transfers.—(1) Transfer from ability to function within the veteran’s covered care in a nursing facility. If a hospital care. If a veteran is receiving family and community. veteran, surviving spouse, or child hospital care and is transferred to (3) Rehabilitation ends. The veteran’s described in paragraph (a) of this domiciliary or nursing home care, VA Improved Pension will be reduced section becomes entitled to Improved will not consider the period of hospital under this section effective the first day Pension while receiving Medicaid- care as domiciliary or nursing home of the calendar month after the date on covered care in a nursing facility, then care. which the program of rehabilitation VA will not pay more than $90 per (2) Transfers from domiciliary or ends. month while he or she receives such nursing home care. (i) If a veteran is (g) Entitlement to Improved Pension care. transferred from domiciliary or nursing established while a veteran is receiving (Authority: 38 U.S.C. 5503(d)) home care to hospital care then back to domiciliary or nursing home care. If a domiciliary or nursing home care, VA § 5.724 Adjustment or discontinuance of veteran becomes entitled to Improved Improved Pension based on the need for will consider the entire period as Pension while receiving domiciliary or continuous domiciliary or nursing home regular aid and attendance while a veteran nursing home care, VA will reduce is receiving hospital, domiciliary, or nursing care unless the period of hospital care pension, or pay a reduced rate of home care. exceeds 6 months. pension, in accordance with this (a) Reduction or discontinuance of (ii) If a veteran is transferred from section. domiciliary or nursing home care to Improved Pension. (1) If a veteran who hospital care and then dies while (Authority: 38 U.S.C. 501(a), 5503) is receiving Improved Pension based on the rate for regular aid and attendance hospitalized, VA will consider the § 5.723 Adjustment of Improved Pension entire period as continuous domiciliary receives hospital, domiciliary, or while a veteran, surviving spouse, or nursing home care for at least 1 calendar or nursing home care unless the period surviving child is receiving Medicaid- of hospital care exceeds 6 months. covered care in a nursing facility. month, VA will pay Improved Pension (iii) VA will consider domiciliary or based on the housebound rate. (a) General provision. Until November (2) The resulting reduction or nursing home care completed on the 30, 2016, VA will reduce Improved date of transfer to hospital care if a discontinuance of Improved Pension Pension being paid to a veteran without will be effective the first day of the veteran is discharged or released from a spouse or child, to a surviving spouse VA care after his or her hospital stay. second calendar month after the date of without a child, or to a surviving child, admission. (iv) VA will consider domiciliary or to $90 per month when that beneficiary nursing home care completed on the (3) VA will not reduce or discontinue is receiving Medicaid-covered care in a Improved Pension under this paragraph date of transfer to hospital care if the nursing facility. VA will not reduce (a) if an exception in paragraph (b) of period of hospital care exceeds 6 Improved Pension under this section if this section applies. months. a veteran is receiving Medicaid-covered Cross Reference: §§ 5.400(b) and (c) (f) Nursing home care for a prescribed care in a State home to which VA makes for the housebound and regular aid and program of rehabilitation.—(1) Delay in per diem payments under 38 U.S.C. attendance rates; 5.722 for reductions of reduction. The reduction required by 1741. Improved Pension after 3 calendar this section for a veteran receiving months of domiciliary or nursing home nursing home care will be delayed for (b) Effective date of reduction. Except as provided in paragraph (c) of this care. up to 3 additional calendar months after (b) Exceptions. VA will not reduce or the first day of the fourth calendar section, the effective date of reduction of Improved Pension payments under discontinue Improved Pension under month referred to in paragraph (a)(3) of this section if: this section, or the first day of the this section will be the latest of: (1) The first day of the month after the (1) The need for regular aid and month following the month of attendance is caused by disability readmission referred to in paragraph month in which Medicaid-covered care begins; resulting from: (d)(1) of this section, if the Under (i) Loss of use of both lower (2) The first day of the month after the Secretary for Health, or his or her extremities and loss of anal and bladder month during which the 60-day period designee, certifies that the primary sphincter control; purpose for the veteran’s additional prescribed in § 5.83(b) expires; or (ii) Hansen’s disease; or period of nursing home care is to (3) The first day of the month after the (iii) Blindness pursuant to provide a prescribed program of month for which VA last paid benefits. § 5.390(b)(1) or (2); or rehabilitation, under 38 U.S.C. chapter (c) Willful concealment. If a (2) The veteran is receiving hospital, 17, designed to restore the veteran’s beneficiary willfully conceals domiciliary, or nursing home care for ability to function within the veteran’s information that would lead to a Hansen’s disease. family and community. reduction of Improved Pension (c) Readmission after discharge or (2) Continued nursing home care for payments under this section, and VA release.—(1) Regular discharge or rehabilitation. The delay in reduction subsequently reduces Improved Pension release. If a veteran is readmitted to may be extended beyond the 3-month under this section, the effective date of hospital, domiciliary, or nursing home period provided by paragraph (f)(1) of the reduction will be the first day of the care after a regular discharge or release, this section if both of the following are month after the month in which the then VA will consider the readmission true: willful concealment occurred. In such a to be a new admission subject to the (i) The veteran continues to receive case, the beneficiary will be liable for provisions of paragraph (a) of this nursing home care; and any payments in excess of $90 per section. (ii) The Under Secretary for Health, or month made after the effective date of (2) Irregular discharge or release. (i) If his or her designee, certifies that the the reduction if the willful concealment a veteran whose Improved Pension was

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reduced or discontinued under this facility, then VA will reduce Improved veteran’s spouse, the apportionment section is readmitted to hospital, Pension under § 5.722 or § 5.723 will be discontinued on the day that the domiciliary, or nursing home care less effective the date that the temporary veteran is discharged or released from than 6 months after an irregular absence ends. domiciliary or nursing home care, discharge or release, then VA will pay (ii) Apportionment of benefits to a unless it is determined that the Improved Pension based on the spouse. If benefits reduced under apportionment will continue under housebound rate effective on the date of § 5.722 have been apportioned to a § 5.771, Special apportionments. veteran’s spouse, the apportionment the readmission. (Authority: 38 U.S.C. 5503) (ii) If a veteran is readmitted to will be discontinued on the day that the hospital, domiciliary, or nursing home temporary absence began, unless it is § 5.726 Reduction of Section 306 Pension care 6 months or more after an irregular determined that the apportionment will while a veteran is receiving hospital, discharge or release, then VA will continue under § 5.771. domiciliary, or nursing home care. consider the readmission to be a new (b) Temporary absence for less than (a) General provisions.—(1) Veterans admission subject to the provisions of 30 days.—(1) Improved Pension based affected. Except as provided in paragraph (a) of this section. on the need for regular aid and paragraph (b) of this section, VA will (d) Entitlement to Improved Pension attendance. If a veteran is on temporary reduce Section 306 Pension paid to a based on the need for regular aid and absence from hospital, domiciliary, or veteran who receives hospital, attendance established while a veteran nursing home care for less than 30 domiciliary, or nursing home care is admitted to hospital, domiciliary, or consecutive days, VA will not resume continuously for 2 calendar months and nursing home care. If a veteran who is any payments discontinued under who: admitted to hospital, domiciliary, or § 5.724. If the veteran is later discharged (i) Does not have a spouse or child; or nursing home care becomes entitled to or released from hospital, domiciliary, (ii) Is married or has a child, but is Improved Pension based on the need for or nursing home care, VA will receiving Section 306 Pension as a regular aid and attendance, with an retroactively pay the amounts that were veteran without dependents. effective date on or after the date of unpaid during any such temporary (2) Proof of dependents. If VA admission, then VA will pay Improved absence. requests evidence about a spouse or (2) Improved Pension. If a beneficiary Pension based on the housebound rate. child but such evidence is not received is on temporary absence from VA will not reduce or discontinue before the effective date of the domiciliary care, nursing home care, or benefits under this paragraph (d) if an reduction, then VA will reduce the Medicaid-covered nursing facility care, exception in paragraph (b) of this veteran’s Section 306 Pension under for less than 30 consecutive days, VA section applies. this section on the basis of no will not resume any payments reduced (Authority: 38 U.S.C. 501(a), 5503) under § 5.722 or § 5.723. If the dependents. If the evidence is received within 1 year after the date of VA’s § 5.725 Resumption of Improved Pension beneficiary is later discharged or released from domiciliary care, nursing request, VA will pay the full rate from and Improved Pension based on the need the date of reduction. for regular aid and attendance after a home care, or Medicaid-covered nursing veteran is on temporary absence from facility care, VA will retroactively pay (3) Rate payable. VA will reduce hospital, domiciliary, or nursing home care the amounts that were unpaid during Section 306 Pension under this section or is discharged or released from such any such temporary absence. to $50 per month. care. (c) Discharge or release.—(1) (4) Effective date of reduction. A (a) Temporary absence from hospital, Improved Pension based on the need for reduction under paragraph (a) of this domiciliary, or nursing home care for 30 regular aid and attendance. If a veteran section will be effective on the first day days or more.—(1) Improved Pension is discharged or released from hospital, of the third calendar month after the based on the need for regular aid and domiciliary, or nursing home care, VA month of admission to hospital, attendance. If a veteran is on temporary will resume any payment reduced or domiciliary, or nursing home care. absence from hospital, domiciliary, or discontinued under § 5.724 effective the (5) Calculation of period. For nursing home care for 30 days or more, date the veteran is discharged or purposes of calculating continuous VA will resume any payment released. Payment will be resumed at periods of hospital, domiciliary, or discontinued under § 5.724. The the rate in effect before the reduction or nursing home care under this section, effective date of the resumed payment is discontinuance based on such care authorized absences for periods of 96 the date the temporary absence began. If unless the evidence of record shows that hours or less will be included as periods the veteran returns to hospital, a different rate is required. of hospital, domiciliary, or nursing domiciliary, or nursing home care, then (2) Improved Pension. If a beneficiary home care. For authorized absences for VA will discontinue Improved Pension is discharged or released from periods of more than 96 hours, the based on the need for regular aid and domiciliary care, nursing home care, or entire period will be excluded from the attendance under § 5.724 effective the Medicaid-covered nursing facility care, total number of days, but will not be date that the temporary absence ends. VA will resume any payment reduced considered a break in the continuous (2) Improved Pension.—(i) General. If under § 5.722 or § 5.723 effective the period of hospital, domiciliary, or a beneficiary is on temporary absence date the beneficiary is discharged or nursing home care. Sixty total days of from any domiciliary or nursing home released. Payment will be resumed at hospital, domiciliary, or nursing home care facility, or a Medicaid-covered the rate in effect before the reduction or care will be considered 2 calendar nursing facility, for 30 days or more, VA discontinuance based on domiciliary months of such care. will resume any payment reduced under care, nursing home care, or Medicaid- (b) Exceptions. VA will not reduce § 5.722 or § 5.723. The payment will be covered nursing facility care, unless the Section 306 Pension under this section resumed at the rate that is appropriate evidence of record shows that a if a veteran is: based on the beneficiary’s income. The different rate is required. (1) Receiving hospital, domiciliary, or effective date of the resumed payment is (3) Apportionment of benefits to a nursing home care for Hansen’s disease; the date that the temporary absence spouse. If benefits reduced under (2) Maintained in a State soldiers’ began. If the beneficiary returns to such § 5.722 have been apportioned to a home; or

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(3) Receiving hospital, domiciliary, or (ii) Effect of irregular discharge prior § 5.728 Reduction of Old-Law Pension or nursing home care in a State home and to reduction. The reduction will be Section 306 Pension based on the need for the only payment made by VA to the effective on that date even if a veteran regular aid and attendance while a veteran State for the State home is the per diem is receiving hospital, domiciliary, or nursing is irregularly discharged or released home care. rate under 38 U.S.C. 1741. from hospital, domiciliary, or nursing (a) Reduction of Old-Law Pension or (c) Apportionment of benefits to a home care and is readmitted to such Section 306 Pension. (1)(i) Old-Law spouse. Benefits in excess of the $50 per care before that effective date. If the Pension. If a veteran who is receiving month may be apportioned to the veteran is readmitted after the first day veteran’s spouse under § 5.772(c)(2)(i). Old-Law Pension at the regular aid and of the seventh calendar month after the attendance rate ($135.45 monthly) (d) Readmission.—(1) Less than 6 month of admission to hospital, receives hospital, domiciliary, or months after admission. If a veteran is domiciliary, or nursing home care, the nursing home care for at least 1 calendar readmitted to hospital, domiciliary, or readmission will be considered a new month, VA will reduce benefits to the nursing home care less than 6 months admission subject to the provisions of housebound rate ($100 monthly). after a period of hospital, domiciliary, or paragraph (a) of this section. (ii) Section 306 Pension.—(A) nursing home care for which Section General. If a veteran who is receiving 306 Pension was reduced under this (b) Exceptions. VA will not reduce Section 306 Pension based on the section, VA will reduce Section 306 Old-Law Pension under this section if a regular aid and attendance rate receives Pension effective the first day of the veteran is: hospital, domiciliary, or nursing home month after the month of readmission. (1) Receiving hospital, domiciliary, or care for at least 1 calendar month, VA nursing home care for Hansen’s disease; (2) Six months or more after will pay benefits based on the admission. If a veteran is readmitted 6 (2) Maintained in a State soldiers’ housebound rate. VA will reduce months or more after a period of home; or benefits by $104 per month, which is hospital, domiciliary, or nursing home (3) Receiving hospital, domiciliary, or the difference between the aid and care for which Section 306 Pension was attendance allowance ($165) and the reduced under this section, the nursing home care in a State home and the only payment made by VA to the housebound allowance ($61). readmission will be considered a new (B) Reduced aid and attendance admission subject to the provisions of State for the State home is the per diem rate under 38 U.S.C. 1741. allowance. If a veteran who is receiving paragraph (a) of this section. Section 306 Pension at a reduced (Authority: 38 U.S.C. 5503; Pub. L. 95–588, (c) Readmission.—(1) Readmission regular aid and attendance rate (under § 306, 92 Stat. 2497) after regular discharge or release. If a former 38 U.S.C. 521(d)(2), as in effect veteran is readmitted to hospital, on December 31, 1978) receives § 5.727 Reduction of Old-Law Pension domiciliary, or nursing home care after while a veteran is receiving hospital, hospital, domiciliary, or nursing home domiciliary, or nursing home care. a regular discharge or release, VA will care for at least 1 calendar month, VA consider the readmission to be a new will reduce benefits to $61 per month. (a) General provisions.—(1) Veterans admission subject to the provisions of (2) The resulting reduction of these affected. Except as provided in paragraph (a) of this section unless the benefits will be effective the first day of paragraph (b) of this section, VA will veteran was discharged or released for the second calendar month after the reduce Old-Law Pension being paid to purposes of admission to another month of admission. a veteran who has received hospital, facility for hospital, domiciliary, or (3) VA will not reduce benefits under domiciliary, or nursing home care nursing home care. this paragraph (a) if an exception in continuously for 6 calendar months and paragraph (b) of this section applies. who does not have a spouse or child. (2) Readmission after irregular discharge or release.—(i) Less than 6 Cross Reference: § 5.471 for the (2) Proof of dependents. If VA housebound and regular aid and months after discharge or release. If a requests evidence about a spouse or attendance rates. veteran is readmitted to hospital, child but such evidence is not received (b) Exceptions. VA will not reduce within 60 days, then VA will reduce the domiciliary, or nursing home care less Old-Law Pension or Section 306 veteran’s Old-Law Pension under this than 6 months after being irregularly Pension under this section if: section on the basis of no dependents. discharged or released from a prior (1) The need for regular aid and If the evidence is received within 1 year period of hospital, domiciliary, or attendance is caused by disability after the date of VA’s request, VA will nursing home care for which Old-Law resulting from: pay the full rate from the date of Pension was reduced under this section, (i) Loss of use of both lower reduction. VA will reduce Old-Law Pension extremities and loss of anal and bladder (3) Rate payable. VA will reduce Old- effective the first day of the month after sphincter control; Law Pension under this section to either the month of readmission. (ii) Hansen’s disease; or $30 per month or 50 percent of the (ii) Six months or more after (iii) 5/200 visual acuity or less in both amount of Old-Law Pension otherwise discharge or release. If a veteran is eyes with corrective lenses or due to payable to the veteran, whichever readmitted 6 months or more after being concentric contraction of the visual field amount is greater. irregularly discharged or released from to 5 degrees or less in both eyes; or (4) Effective date of reduction.—(i) a prior period of hospital, domiciliary, (2) The veteran is receiving hospital, General. The effective date of reduction domiciliary, or nursing home care for or nursing home care for which Old- under paragraph (a) of this section is the Hansen’s disease. Law Pension was reduced under this first day of the seventh calendar month (c) Readmission after discharge or after the month of admission to hospital, section, the readmission will be release.—(1) Regular discharge or domiciliary, or nursing home care. VA considered a new admission subject to release. If a veteran is readmitted to excludes any month (others than the the provisions of paragraph (a) of this hospital, domiciliary, or nursing home month of admission) that contains an section. care after a regular discharge or release, authorized absence from its calculation (Authority: Pub. L. 95–588, § 306, 92 Stat. then VA will consider the readmission of the effective date. 2497) to be a new admission subject to the

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provisions of paragraph (a) of this more than 6 months and the combined (b) Temporary absence from hospital, section. periods of absence from such care domiciliary, or nursing home care for (2) Irregular discharge or release. (i) If exceed a total of 30 days, VA will less than 30 days. If a veteran is on a veteran whose Old-Law Pension or retroactively pay the amounts that were temporary absence from hospital, Section 306 Pension was reduced under unpaid under § 5.726 during such domiciliary, or nursing home care for this section is readmitted to hospital, temporary absences if: less than 30 consecutive days, VA will domiciliary, or nursing home care less (i) The director of the facility not resume any Old-Law Pension than 6 months after an irregular providing hospital, domiciliary, or payments reduced under § 5.727 or discharge or release, then VA will nursing home care requests payment on § 5.728. If the veteran is later discharged reduce Old-Law Pension or Section 306 behalf of a veteran; and or released from hospital, domiciliary, Pension based on the need for regular (ii) Payment is necessary to meet the or nursing home care, VA will aid and attendance effective on the date veteran’s financial needs. retroactively pay the amounts that were unpaid during any such temporary of the readmission. (2) If the conditions in paragraph (ii) If a veteran is readmitted to absence. (c)(1) of this section are met, payment hospital, domiciliary, or nursing home (c) Regular discharge or release. If a will be restored even if the veteran has care 6 months or more after an irregular veteran is regularly discharged or not been discharged or released from discharge or release, then VA will released from hospital, domiciliary, or hospital, domiciliary, or nursing home consider the readmission to be a new nursing home care, VA will resume any care. admission subject to the provisions of Old-Law Pension payment reduced paragraph (a) of this section. (d) Discharge or release.—(1) General. under § 5.727 or § 5.728 effective the If a veteran is discharged or released date that the veteran was discharged or (Authority: 38 U.S.C. 501(a); Pub. L. 95–588, from hospital, domiciliary, or nursing § 306, 92 Stat. 2497) released. Payment will be resumed at home care, VA will resume any Section the rate in effect before the reduction § 5.729 Resumption of Section 306 306 Pension payment reduced under based on hospital, domiciliary, or Pension and Section 306 Pension based on § 5.726 or § 5.728 effective the date the nursing home care, unless the evidence the need for regular aid and attendance veteran was discharged or released. of record shows that a different rate is during a veteran’s temporary absence from Payment will be resumed at the rate in required. VA will also pay any amounts hospital, domiciliary, or nursing home care effect before the reduction based on that were unpaid during the veteran’s or after released from such care. hospital, domiciliary, or nursing home hospital, domiciliary, or nursing home (a) Temporary absence from hospital, care, unless the evidence of record care. domiciliary, or nursing home care for 30 shows that a different rate is required. (d) Irregular discharge or release. If a days or more.—(1) General. If a veteran (2) Apportionment of benefits to a veteran is irregularly discharged or is on temporary absence from hospital, spouse. If benefits reduced under released from hospital, domiciliary, or domiciliary, or nursing home care for 30 § 5.726 have been apportioned to a nursing home care, VA will resume any days or more, VA will resume any veteran’s spouse, the apportionment Old-Law Pension payment reduced Section 306 Pension payment reduced will be discontinued on the day that the under § 5.727 or § 5.728 effective the under § 5.726 or § 5.728. The effective veteran is discharged or released from date the veteran was discharged or date of the resumed payment is the date hospital, domiciliary, or nursing home released. Payment will be resumed at that the temporary absence begins. If the care, unless it is determined that the the rate in effect before the reduction veteran returns to hospital, domiciliary, apportionment will continue under based on hospital, domiciliary, or or nursing home care, then VA will § 5.771. nursing home care, unless the evidence reduce Section 306 Pension effective the of record shows that a different rate is date that the temporary absence ends. (Authority: 38 U.S.C. 5503; Pub. L. 95–588, § 306, 92 Stat. 2497) required. If a veteran’s irregular (2) Apportionment of benefits to a discharge or release is not changed to a spouse. If benefits reduced under § 5.730 Resumption of Old-Law Pension regular discharge or release, VA will not § 5.726 have been apportioned to a and Old-Law Pension based on the need for pay any Old-Law Pension that was veteran’s spouse, the apportionment regular aid and attendance after a veteran unpaid during the veteran’s hospital, will be discontinued on the day that the is on temporary absence from hospital, domiciliary, or nursing home care until temporary absence begins, unless it is domiciliary, or nursing home care or is discharged or released from such care. 6 months after the date the veteran was determined that the apportionment will discharged or released. continue under § 5.771. (a) Temporary absence from hospital, (Authority: Pub. L. 95–588, § 306, 92 Stat. (b) Temporary absence from hospital, domiciliary, or nursing home care for 30 2497) domiciliary, or nursing home care for days or more. If a veteran is on less than 30 days. Except as provided in temporary absence from hospital, 5.731–5.739 [Reserved] domiciliary, or nursing home care for 30 paragraph (c) of this section, if a veteran Payments to a Beneficiary Who Is days or more, VA will resume any Old- is on temporary absence from hospital, Eligible for More Than One Benefit: Law Pension payment reduced under domiciliary, or nursing home care for General Provisions less than 30 consecutive days, VA will § 5.727 or § 5.728. The effective date of not resume any Section 306 Pension the resumed payment for Old-Law § 5.740 Definitions relating to elections of payments reduced under § 5.726 or Pension reduced under § 5.727 is the benefits. § 5.728. If the veteran is later discharged date of reduction. The effective date of (a) Election means any writing or released from hospital, domiciliary, the resumed payment for Old-Law expressing a choice between two or or nursing home care, VA will Pension reduced under § 5.728 is the more VA benefits to which the person retroactively pay the amounts that were date the temporary absence begins. If is entitled, or between VA and other unpaid during any such temporary the veteran returns to hospital, Federal benefits to which the person is absence. domiciliary, or nursing home care, then entitled. (c) Adjustment based on need. (1) If VA will reduce Old-Law Pension (b) Initial election means the first a veteran has been under hospital, effective the date that the temporary election a person makes between two or domiciliary, or nursing home care for absence ends. more benefits.

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(c) Reelection means an election a final election or reelection ordinarily the effective date of an award of an person makes between benefits that may be changed only by cancellation elected benefit will be the same as the were the subject of an initial election. under paragraph (d) or (e) of this section effective date VA would assign for the (d) Timely filed with respect to or by reelection, if authorized under this awarded benefit if no election were elections means that an election is filed part. Reelections are subject to the required. Unless otherwise provided in no later than 1 year after VA’s notice finality rules stated in paragraphs (a) this part, if a beneficiary elects a that such an election is required, except through (e) of this section. different benefit, the effective date of an as provided in §§ 5.745(d)(1), (a) Finality of an election when award of the elected VA benefit is the 5.750(a)(2), 5.757(a) through (c), and benefits are received by check. Except as date VA receives the election. 5.759(b). otherwise provided in this section, if the (2) Offset. Payments of the elected (Authority: 38 U.S.C. 501(a), 5103(b)) beneficiary receives payment of the benefit are subject to an offset. The elected benefit by check, the election is payments will be offset by any Cross Reference: § 5.535, Adjustments final when the beneficiary (or a person payments the beneficiary received for to a parent’s dependency and indemnity authorized to act on the beneficiary’s another benefit for the same period. compensation when income changes. behalf under § 5.741) negotiates the first This offset will occur only if the two § 5.741 Persons who may make an check for the elected benefit. benefits cannot be received election of benefits. (b) Finality of an election when concurrently. benefits are received by direct deposit or (a) General rule. VA will accept an (Authority: 38 U.S.C. 5110, 5304) election signed by a claimant or electronic funds transfer. Except as otherwise provided in this section, if the (b) Effective date of reduction or beneficiary, or if applicable, by any one discontinuance. Unless otherwise of the following persons acting on beneficiary receives payment of the provided in this part, VA will reduce or behalf of a claimant or beneficiary: elected benefit by direct deposit or discontinue payments of a benefit (1) The spouse of a claimant or electronic funds transfer, the election is beneficiary if the claimant or beneficiary final when the applicable financial because the beneficiary elected a has been declared to be an incompetent institution receives the second payment different VA benefit or a non-VA veteran under § 13.57 of this chapter; of the elected benefit. benefit, effective on the effective date of (2) The custodian of a claimant or (c) Finality of an election when a the other benefit. beneficiary if the claimant or beneficiary beneficiary dies after filing an election. (Authority: 38 U.S.C. 5112, 5304) is a minor under § 13.58 of this chapter; If a beneficiary died after filing an (3) A fiduciary designated by VA election, but before the beneficiary had § 5.744 [Reserved] under § 13.55 of this chapter; negotiated the check or before the Payments From Service Departments (4) A court-appointed fiduciary, under applicable financial institution had and the Effects of Those Payments on § 13.59 of this chapter; or received the second payment for the VA Benefits (5) The chief officer of the health-care elected benefit, the election is final even institution in which the veteran is though it would not be considered final § 5.745 Entitlement to concurrent receipt receiving care and treatment, and whom under paragraph (a) or (b) of this of military retired pay and VA disability VA has designated as a payee, under section. compensation. §§ 13.55(b)(6) and 13.61 of this chapter. (d) Cancellation of an election made (a) Definition of ‘‘military retired (b) Elections from a Member of by an incompetent person. If VA finds pay’’. For purposes of this part, Congress or duly authorized that a beneficiary was mentally ‘‘military retired pay’’ is payment representative. This paragraph (b) incompetent when he or she elected a received by a veteran that is classified applies if VA receives a communication benefit, the beneficiary, or another as retired pay by the Service from a Member of Congress or from a person listed in § 5.741(a), who is acting Department, including, but not limited claimant or beneficiary’s duly on behalf of the beneficiary, may cancel to retainer pay, based on the recipient’s authorized representative indicating that election. There is no deadline to service as a member of the Armed that a claimant or beneficiary wishes to cancel an election under this paragraph Forces or as a commissioned officer of elect a VA benefit. (If the (d). the Public Health Service or the communication is from a service (e) Cancellation of elections that were National Oceanic and Atmospheric organization, attorney, or agent, there based on erroneous VA information. A Administration (including its must be a power of attorney in effect at beneficiary may cancel an election that predecessor agencies, the Coast and the time the communication was was based on erroneous information Geodetic Survey and the Environmental written.) If VA receives such a provided by VA. For this right to Science Services Administration). communication, VA will provide notice cancellation to apply, VA must make a (b) Payment of both military retired to the claimant or beneficiary that a determination that it previously pay and disability compensation or person listed in paragraph (a) of this provided erroneous information. This Improved Pension—(1) Disability section must sign such an election. If a determination must be based on the compensation. Subject to paragraphs properly signed election is then timely same evidence that VA used when it (b)(2) and (3) of this section, a veteran filed under § 5.740(d), VA will consider previously provided the erroneous who is entitled to military retired pay the properly signed election to have information. There is no deadline to and disability compensation for a been filed on the date it received the cancel an election under this paragraph service-connected disability rated 50 communication from the Member of (e). percent or more disabling, or a combination of service-connected Congress or the duly authorized (Authority: 38 U.S.C. 501(a)) representative. disabilities rated 50 percent or more (Authority: 38 U.S.C. 501(a), 5103(b)(1)) § 5.743 General effective dates for disabling, under the Schedule for Rating awarding, reducing, or discontinuing VA Disabilities in part 4, subpart B of this § 5.742 Finality of elections of benefits; benefits because of an election. chapter, is entitled to receive both cancellation of certain elections of benefits. (a) General effective date of award; payments subject to the phase-in period This section explains when an offset—(1) Effective date of award. described in paragraph (c) of this election or reelection becomes final. A Unless otherwise provided in this part, section.

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(2) Chapter 61 disability retirees includes a veteran who is entitled to section, active military service pay retiring with 20 or more years of service. receive disability compensation based means pay that a veteran receives for Disability retired pay payable under 10 on a VA determination of individual active duty, active duty for training, or U.S.C. Chapter 61 to a veteran with 20 unemployability (IU) as well as a inactive duty training. Active military or more years of creditable service may veteran rated 100 percent disabled service pay does not include pay for be paid concurrently with disability under the Schedule for Rating time spent by a member of the Reserve compensation to a qualifying veteran Disabilities in part 4 of this chapter. Officer Training Corps in drills as part subject to the following elements: (3) How to file a waiver of military of his or her activities as a member of (i) Any waiver required during the retired pay. A veteran may request a the corps. phase-in period under paragraph waiver of military retired pay in any (b) Prohibition against receipt of VA (c)(1)(ii) of this section; and written, signed statement, including, but benefits at the same time as active (ii) If the veteran’s disability retired not limited to, a VA form, which reflects military service pay. VA will not pay pay exceeds the amount of retired pay a desire to waive all or some military VA disability compensation or pension the veteran would have received had the retired pay. The statement must be filed to a veteran for any period for which the veteran retired based on length of with VA or with the Federal agency that veteran receives active military service service, the veteran must waive that pays the veteran’s military retired pay. pay. excess amount of disability retired pay VA will treat a claim for VA disability (c) Effective date of discontinuance of in order to receive VA disability compensation filed by a veteran who is payments for VA benefits during active compensation. entitled to military retired pay as a duty status. Unless the veteran elects to (3) Chapter 61 disability retirees waiver. receive VA benefits instead of active retiring with less than 20 years of military service pay, VA will (Authority: 10 U.S.C. 1414; 38 U.S.C. 5305) service. A veteran who receives discontinue payments effective the day disability retired pay under 10 U.S.C. (d) Elections and the right to reelect the veteran begins active duty service. If Chapter 61 with less than 20 years of either benefit. (1) A veteran who has VA does not know the exact date of the creditable service is not eligible for filed a waiver of military retired pay veteran’s return to active duty, VA will concurrent receipt. under this section has elected to receive discontinue payments effective the first (4) Improved Pension. A veteran may disability compensation. A veteran may day of the month after the month for receive Improved Pension and military reelect between benefits covered by this which it last paid benefits. If the exact retired pay at the same time without section at any time by filing a written, date of the veteran’s return to active having to waive military retired pay. signed statement to VA or to the Federal duty thereafter becomes known, VA will However, in determining entitlement to agency that pays the veteran’s military then discontinue payments effective as Improved Pension, VA will treat retired pay. of that date. military retired pay in the same manner (2) An election between military (d) Resumption of payments for VA as countable income from other sources. retired pay and disability compensation benefits on release from active duty.— under this section that is filed no later (1) Effective date. If otherwise in order, (Authority: 10 U.S.C. 1414) than 1 year after the date of notification VA will resume payments effective the (c) Waiver—(1) When a waiver is of VA entitlement will be considered day after the date of release from active necessary. (i) A waiver of military ‘‘timely filed’’ for effective date duty if VA receives a claim to resume retired pay is necessary in order to purposes. If the veteran is incompetent, payments no later than 1 year after the receive disability compensation when a the 1-year period will begin on the date date of release. Otherwise, the effective veteran is eligible for both military that notification is sent to the next date is 1 year before the date VA retired pay and disability compensation friend or fiduciary. In initial receives the claim to resume payments. but is not eligible under paragraphs determinations, elections may be (2) Rate—(i) Static service-connected (b)(1) or (2) of this section to receive applied retroactively if the claimant was disabilities. If the evidence of record both benefits at the same time. not advised of his or her right of shows that the level of disability had (ii) Except as provided in paragraph election and its effect. become static at the time of entry into (c)(2) of this section, a veteran who is (e) Effective date rules for elections active duty, VA will resume payments eligible to receive both military retired under this section. (1) If an election is for a service-connected disability at the pay and disability compensation at the timely filed under paragraph (d)(2) of same disability level that was in effect same time under paragraphs (b)(1) or (2) this section, the effective date of the immediately before entering active duty. of this section must file a waiver in election will be the date of entitlement (ii) Non-static service-connected order to receive the maximum allowable to the elected benefit. disabilities. Except as provided in amount of disability compensation (2) If a waiver is properly filed under paragraph (d)(2)(i) of this section, VA during the phase-in period. The phase- paragraph (c) of this section, the will resume payments based on the in period ends on December 31, 2013. effective date of the waiver will be the degree of disability found to exist when After the phase-in period, a veteran day following discontinuance or the award is resumed. VA will ascertain retired under 10 U.S.C. chapter 61 who reduction of retired pay. the degree of disability by considering is eligible for concurrent receipt must (3) If a reelection is made under all the facts, including, but not limited still file a waiver under the paragraph (d)(1) of this section, the to, facts provided in records from the circumstances described in paragraph effective date of the election will be the service department relating to the most (b)(2)(ii) of this section. date that the reelection is received by recent period of active military service. (2) When a waiver is not necessary. VA. (3) Application of § 5.693. Unless paragraph (b)(2)(ii) of this (Authority: 38 U.S.C. 5304(a), 5305) Resumptions under paragraph (d) of this section applies, a veteran who is section are not subject to § 5.693, except entitled to receive disability § 5.746 Prohibition against receipt of to the extent that the disability rating is compensation at the 100 percent rate active military service pay and VA benefits increased. does not need to file a waiver of military for the same period. (4) Prior service-connection awards. retired pay. The phase-in period does (a) Definition of ‘‘active military In determining whether disability not apply to this group of veterans. This service pay’’. For purposes of this compensation payments should be

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resumed under paragraph (d) of this (Authority: 10 U.S.C. 1174(h)(2); 38 U.S.C. 61 after January 28, 2008, and the section, VA will not disturb prior 501(a)) veteran’s disabilities were incurred: determinations of service connection (b) Disability severance pay—(1) (i) In the line of duty in a combat except as provided in § 5.83(a), or Recoupment of disability severance pay zone; or § 5.177. when VA disability compensation is (ii) During performance of duty in (5) New claims for service connection. awarded for a severance disability. combat-related operations as designated If the veteran incurs or aggravates a When VA disability compensation is by the Department of Defense. disability during the subsequent period awarded based on the same disability or (Authority: 10 U.S.C. 1174(h) and 1212(d); 38 of service, VA will not grant service disabilities for which the veteran U.S.C. 501(a), 1161) connection for the new disability unless received disability severance pay, VA it receives a claim for service (c) Separation pay and special will recoup from the disability separation benefits. This paragraph (c) connection for that disability. compensation award the full amount of (e) Waiver of VA benefits during applies when entitlement to disability the disability severance pay. active duty for training or inactive duty compensation was established after (2) Rate of recoupment of disability for training—(1) Waiver of VA benefits. September 14, 1981. severance pay. Generally, VA will A veteran who is a Reservist and a (1) Recoupment of separation pay and recoup disability severance pay from National Guard member may waive his special separation benefits. A veteran VA disability compensation at the rate or her VA pension or disability who has received separation pay or payable for the initial determination of compensation for periods of active duty special separation benefits may also the degree of the disability for which the for training or inactive duty for training. receive disability compensation for a veteran was awarded disability See § 5.23. Waivers may cover disability incurred in or aggravated by severance pay. However, the veteran anticipated periods of training; service before the date of receipt of however, each waiver is effective for not must receive the full amount of the separation pay or special separation more than 1 year. monthly disability compensation, benefits. However, the separation pay or (2) Readjustments. VA may authorize including additional amounts for a special separation benefits will be retroactive payments of previously dependent, payable for any additional recouped from the disability waived VA pension or disability nonseverance pay disabilities. compensation. compensation if readjustment is in order (i) Initial determination of the degree (2) Disability compensation for because the veteran did not receive of disability. The initial determination disability incurred or aggravated in service pay for a period of training duty of the degree of disability means the first subsequent service is not subject to as anticipated. However, VA must regular schedular compensable rating recoupment. The veteran must receive receive a claim for readjustment no later determined under the Schedule for the full amount of the monthly than 1 year after the end of the fiscal Rating Disabilities in part 4 of this disability compensation, including year during which VA benefits were chapter. The initial determination of the additional amounts for a dependent, waived. degree of disability must be made payable for a service-connected without consideration in whole or in (Authority: 10 U.S.C. 12316; 38 U.S.C. 501(a), disability that was incurred in or 5304(c)) part of a need for hospitalization or a aggravated in a period of service that is period of convalescence. It does not subsequent to the period on which the Cross Reference: § 5.1, for the include a temporary 100 percent rating definition of ‘‘reservist’’. separation pay or special separation assigned under § 4.28, § 4.29, or § 4.30 benefits were based. § 5.747 Effect of military readjustment pay, of this chapter. (Authority: 10 U.S.C. 1174, 1174a, 38 U.S.C. disability severance pay, and separation (ii) Rate of recoupment before an 501(a)) pay on VA benefits. initial determination of the degree of (a) Lump-sum readjustment pay. This disability. When a veteran is receiving a (d) Amount recouped—(1) Lump-sum paragraph (a) applies when entitlement temporary rating assigned under § 4.28, readjustment pay, disability severance to disability compensation was § 4.29, or § 4.30 of this chapter and VA pay, and separation pay—(i) Payments established after September 14, 1981. has not yet made an initial received before October 1, 1996. VA will (1) Recoupment of lump-sum determination of the degree of recoup from VA disability readjustment pay. A veteran who has disability, VA will recoup at the rate compensation the total amount of lump- received a lump-sum readjustment payable, based on that temporary rating, sum readjustment pay, disability payment may also receive disability for the disability or disabilities for severance pay, and separation pay a compensation for disability incurred in, which the severance pay was granted. veteran received before October 1, 1996, or aggravated by, service before the date (iii) Rate of recoupment after an regardless of the amount of Federal of receipt of the lump-sum readjustment initial determination of the degree of income tax withheld from such payment. However, the lump-sum disability. After making an initial payments. readjustment payment will be recouped determination of the degree of (ii) Payments received after from the disability compensation. disability, VA will recoup disability September 30, 1996. VA will recoup (2) Disability compensation for compensation at the monthly rate from VA disability compensation the disability incurred or aggravated in payable for the degree of disability total amount of lump-sum readjustment subsequent service is not subject to assigned. VA will not thereafter change pay, disability severance pay, and recoupment. The veteran must receive the rate of recoupment based on separation pay a veteran received after the full amount of the monthly reevaluations of the veteran’s disability September 30, 1996, less the amount of disability compensation including that lead to an increased rating. Federal income tax withheld from such additional amounts for a dependent, (3) Disability severance pay for a payments. The Federal income tax payable for a service-connected combat zone veteran. The veteran must withholding amount is the flat disability that was incurred in or receive the full amount of the monthly withholding rate for Federal income tax aggravated in a period of service that is disability compensation, including withholding. subsequent to the period on which the additional amounts for a dependent, if (2) Special separation benefits. VA readjustment pay was based. the veteran separated under 10 U.S.C. will recoup from VA disability

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compensation the total amount of addressed in paragraph (a)(2) of this § 5.751 Election between VA benefits and special separation benefits under 10 section. If a beneficiary elects to receive compensation under the Federal U.S.C. 1174(a) less the amount of FECA compensation, his or her VA Employees’ Compensation Act for death or Federal income tax withheld from such benefits will be discontinued effective disability due to Federal civilian employment. payments. The Federal income tax the end of the month following the withholding amount is the flat month in which VA receives notice of (a) When both VA benefits and withholding rate for Federal income tax the election from the Office of Workers’ compensation under the Federal withholding. Compensation. Employees’ Compensation Act (FECA) are based upon the same disability or (Authority: 10 U.S.C. 1174, 1212(d), 38 (2) Right to reelect dependency and death—(1) Election required. Except as U.S.C. 501(a)) indemnity compensation in lieu of otherwise provided in this section, a compensation under FECA at any time. § 5.748 Concurrent receipt of VA disability person who is entitled to compensation A person who is receiving benefits compensation and retired pay by certain from the U.S. Department of Labor’s under FECA based on death in military officers of the Public Health Service. Office of Workers’ Compensation service may reelect at any time to Disability compensation may be paid Programs under FECA, for a disability or receive DIC in lieu of FECA concurrently with retired pay to an death due to Federal civilian compensation. However, such an officer of the commissioned corps of the employment, and who is also entitled to election of DIC is irrevocable once the Public Health Service, who was VA disability compensation or reelection becomes final under § 5.742. receiving disability compensation on dependency and indemnity December 31, 1956, as follows: (3) Future increases in impairment. If compensation (DIC) based on the same (a) An officer who incurred a a veteran makes an election of FECA disability or death, must elect whether disability before July 29, 1945, but compensation instead of VA disability to receive FECA compensation or the retired for reasons unrelated to compensation for a particular disability, applicable VA benefit. If a beneficiary disability before such date; and there is subsequent increased elects to receive FECA compensation, (b) An officer who incurred a impairment based on that disability, the his or her VA benefits will be disability before July 29, 1945, but award of increased disability discontinued effective the end of the retired unrelated to disability between compensation based on the increased month following the month in which July 4, 1952, and December 31, 1956; or impairment will be considered a new VA receives notice of the election from (c) An officer who incurred a benefit and the veteran may elect to the Office of Workers’ Compensation. disability between July 29, 1945, and receive FECA compensation or VA (2) No election is required for VA July 3, 1952, but retired unrelated to disability compensation as to that awards approved before September 13, disability between July 4, 1952, and increased impairment. If the veteran 1960. Any award approved before December 31, 1956. elects VA disability compensation for September 13, 1960, authorizing VA (Authority: Sec. 501(b), Pub. L. 84–881, 70 the increase, VA will pay only the benefits concurrently with an award of Stat. 881; E.O. 9575, 10 FR 7895, June 29, difference between the rate payable for FECA compensation for a disability or 1945; E.O. 10349, 17 FR 3769, Apr. 29, 1952) the increased rating and the rate payable death due to Federal civilian for the prior rating. § 5.749 [Reserved] employment is not subject to the (b) Effect of a surviving spouse’s election requirement in paragraph (a)(1) Payments From Other Federal Agencies election of compensation under FECA or of this section. and the Effects of Those Payments on VA benefits on the rights of a child—(1) (b) When VA benefits and FECA VA Benefits for a Veteran and Survivor Cases in which a spouse’s entitlement compensation are each based on a § 5.750 Election between VA benefits and controls a child’s entitlement. If a different disability or death. There is no compensation under the Federal child’s entitlement to VA benefits is prohibition against concurrent payment Employees’ Compensation Act for death or controlled by the surviving spouse’s of FECA compensation and VA disability due to military service. entitlement, the surviving spouse’s disability compensation or DIC if (a) General rules—(1) Election election controls the rights of the entitlement to each benefit is based on required. A person who is entitled to veteran’s child, even if the child is not a different disability or death. The compensation from the U.S. Department in the custody of the surviving spouse election described in paragraph (a)(1) of of Labor’s Office of Workers’ and even if the child is not entitled to this section is not required in such Compensation Programs under the receive any benefits under FECA. If the cases. Federal Employees’ Compensation Act surviving spouse elects to receive FECA (c) Election is irrevocable. An election (FECA) for a disability or death incurred compensation, the child’s VA benefits to receive FECA compensation or VA before January 1, 1957, due to service in will be discontinued on the same day benefits under this section is irrevocable the Armed Forces, and who is also that the surviving spouse’s VA benefits once the election becomes final under entitled to VA pension, disability are discontinued. § 5.742, Finality of elections; compensation, or dependency and (2) Cases in which a child has cancellation of certain elections. There indemnity compensation (DIC) based on independent entitlement. If a child is is no right of reelection. the same disability or death (including entitled to DIC or other VA benefits (d) Future increases in disability. If a compensation or DIC payable under 38 independent of the surviving spouse’s veteran makes an election of FECA U.S.C. 1151, Benefits for persons entitlement, the child may receive such compensation instead of VA disability disabled by treatment or vocational benefits at the same time that the compensation for a particular disability, rehabilitation) must elect whether to surviving spouse receives FECA and there is subsequent increased receive FECA compensation or the compensation. impairment based on that disability, the applicable VA benefit. An election (Authority: 5 U.S.C. 8116(b); 38 U.S.C. award of increased disability under this paragraph (a)(1) is 501(a), 1316(b), 1317(a)) compensation based on the increased irrevocable once it becomes final under disability will be considered a new § 5.742. There is no right of reelection, Cross Reference: § 5.1, for the benefit and the veteran may elect to with the exception of the situation definition of ‘‘custody of a child’’. receive FECA compensation or VA

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disability compensation as to that § 5.753 Payment of VA benefits and civil first day of the month that RECA increased disability. service retirement benefits for the same benefits are issued. period. (e) Effect of a surviving spouse’s (Authority: 42 U.S.C. 2210 note) election of compensation under FECA or VA will pay VA benefits to an eligible VA benefits on the rights of a child—(1) claimant or beneficiary at the same time § 5.755 [Reserved] Cases in which a spouse’s entitlement that the claimant or beneficiary is Rules Concerning the Receipt of controls a child’s entitlement. If a receiving civil service retirement Multiple VA Benefits child’s entitlement to VA benefits is benefits. However, VA will consider controlled by the surviving spouse’s payments of civil service retirement § 5.756 Prohibition against concurrent entitlement, the surviving spouse’s benefits as income where income is a receipt of certain VA benefits based on the election controls the rights of the factor in entitlement to VA benefits service of the same veteran. veteran’s child, even if the child is not except as otherwise provided in this (a) Veteran. VA may not pay a veteran in the custody of the surviving spouse part. an award of disability compensation and an award of disability pension at and even if the child is not entitled to (Authority: 38 U.S.C. 501(a)) receive any benefits under FECA. If the the same time based on the veteran’s surviving spouse elects to receive FECA § 5.754 Effect of payment of compensation service. compensation, the child’s VA benefits under the Radiation Exposure (b) Survivor. VA may not pay a will be discontinued on the same day Compensation Act of 1990 on payment of survivor more than one award of death certain VA benefits. that the surviving spouse’s VA benefits pension, death compensation, or are discontinued. (a) Disability compensation.—(1) dependency and indemnity (2) Cases in which a child has Receipt of payment under Radiation compensation (DIC) based on the service independent entitlement. If a child is Exposure Compensation Act of 1990. A of the same veteran. entitled to DIC or other VA benefits radiation-exposed veteran, as defined in (Authority: 38 U.S.C. 5304(a)(1)) independent of the surviving spouse’s § 5.268(a), who receives a payment under the Radiation Exposure § 5.757 Elections between VA disability entitlement, the child may receive such compensation and VA pension. benefits at the same time that the Compensation Act of 1990, as amended (a) Elections between disability surviving spouse receives FECA (42 U.S.C. 2210 note) (RECA), will not compensation and Improved Pension. A compensation. be denied disability compensation to which the veteran is entitled under person who is entitled to receive both (Authority: 5 U.S.C. 8116(b); 38 U.S.C. disability compensation and Improved 501(a)) § 5.268 (discussing presumptive service connection for radiation exposed Pension may elect or reelect at any time § 5.752 Procedures for elections between veterans) for months beginning after to receive either benefit unless VA benefits and compensation under the March 26, 2002. otherwise provided in this part, Federal Employees’ Compensation Act. (2) Non-radiation exposed veteran. A regardless of whether it is the greater or (a) Procedures before VA receipt of an veteran who is not a ‘‘radiation-exposed lesser benefit. (b) Elections between dependency and election between compensation under veteran,’’ as defined in § 5.268(a), is not indemnity compensation and death the Federal Employees’ Compensation entitled to VA disability compensation pension. A person who is entitled to Act (FECA) and VA benefits. When for disability caused by a disease that is receive both dependency and indemnity there is evidence showing that a attributable to exposure to radiation for compensation and death pension may claimant is receiving benefits from the which the veteran has received a elect or reelect at any time to receive U.S. Department of Labor’s Office of payment under RECA. either benefit unless otherwise provided Workers’ Compensation Programs (Authority: 38 U.S.C. 1112(c)(4)) (OWCP) under FECA for the same in this part, regardless of whether it is disability or death for which VA (b) Dependency and indemnity the greater or lesser benefit. (c) Elections between disability benefits are claimed, VA will: compensation (DIC). A person who compensation and Old-Law Pension or (1) Advise OWCP of the pertinent receives a payment under RECA based Section 306 Pension. A person who is facts in the case, including the upon a veteran’s death will not be entitled to receive both disability disabilities for which VA benefits are denied DIC to which the person is compensation and Old-Law Pension or payable, and request that OWCP obtain entitled under §§ 5.510 through 5.512 Section 306 Pension may elect at any the election; and and 5.520 through 5.522 for months time to receive either benefit. Such (2) Deny the VA claim, advise the beginning after March 26, 2002. person may reelect at any time to claimant of the facts VA furnished to (Authority: 38 U.S.C. 1310(c)) receive the other benefit unless OWCP, and inform the claimant that otherwise provided in this part, OWCP will contact the claimant (c) Offset of RECA against VA regardless of which is the greater or concerning rights of election. benefits. Notwithstanding paragraphs (a)(1) or (b) of this section, the amount lesser benefit. (b) Procedures when there is an of a RECA payment will be deducted (d) Effect of a veteran’s election of election of VA benefits instead of from the amount of disability disability compensation or pension on compensation under FECA. If OWCP compensation payable pursuant to other beneficiaries. A veteran’s election informs VA that the claimant has § 5.268. of disability compensation or pension elected VA benefits, VA will pay under this section controls the right of (Authority: 38 U.S.C. 1310(c)) benefits effective the date of receipt of any dependent in that case, even though the claim for VA benefits (or other (d) Effective date of discontinuance of the election results in the reduction of effective date assigned under this VA benefits. This paragraph (d) applies the benefit payable to the dependent. chapter based on such claim). VA will when VA must discontinue VA (e) Effect of a surviving spouse’s offset FECA payments made during the disability compensation to a person election on the rights of a child—(1) period between the effective date of the because that person received RECA General rule: the election of the VA award and the date of election. compensation. In such a case, VA will surviving spouse controls the claims of (Authority: 38 U.S.C. 501(a)) discontinue its benefits effective the the child. An election by a surviving

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spouse controls the claims of a child Pension instead of Improved Pension. If Such surviving spouse may including a child over age 18 and any a pension beneficiary who is eligible to subsequently reelect either benefit. child not in the custody of the surviving elect Improved Pension under this (Authority: 38 U.S.C. 1317(b)) spouse, even though the election results section does not do so, VA will continue in the reduction of the benefit payable to pay that beneficiary Old-Law Pension § 5.761 Concurrent receipt of disability to a child. or Section 306 Pension at the monthly compensation, pension, or death benefits (2) Exception: when a surviving rate in effect on December 31, 1978, by a surviving spouse based on the service spouse elects death compensation. unless that rate must be reduced or of more than one veteran. When a surviving spouse elects death discontinued under § 5.470, Reasons for (a) Concurrent receipt of disability compensation instead of Improved discontinuing or reducing Old-Law compensation or pension and death Death Pension, an otherwise eligible Pension or Section 306 Pension, or benefits. Except as otherwise provided child is not precluded from receiving under any other regulation in this part. in § 5.464, if a surviving spouse is Improved Death Pension if the child is (d) Effect of a surviving spouse’s receiving disability compensation or not in the custody of a surviving spouse. election of Improved Pension on the pension in his or her own right as a See § 5.417. rights of a child. A surviving spouse’s veteran, the surviving spouse is not (3) Exception: when a surviving election of Improved Pension does not barred from receiving: spouse elects Improved Death Pension. affect the benefits of a surviving child (1) An apportionment of disability A surviving spouse’s election of who was receiving, on December 31, compensation or pension based on Improved Death Pension does not affect 1978, a separate apportioned award of another veteran’s disability; or the benefits of a surviving child who Old-Law Pension or Section 306 (2) Death pension, death was receiving a separate apportioned Pension. compensation, or dependency and award of Old-Law Pension or Section indemnity compensation (DIC) due to 306 Pension on December 31, 1978. (Authority: 38 U.S.C. 501(a); Sec. 306(a) and the death of another veteran. (f) Change from one law to another.— (b), Pub. L. 95–588, 92 Stat. 2508) (b) Entitlement to death benefits (1) General. Except as otherwise § 5.759 Election between death based on the death of more than one provided, where payments of pension or compensation and dependency and veteran. Except as otherwise provided disability compensation are being made indemnity compensation. in this regulation or in § 5.464, if a to a person under one law, the right to (a) Election between benefits is beneficiary is receiving death pension, receive benefits under another law being required. A person who is eligible for death compensation, or DIC as the in suspension, and a higher rate of both death compensation and surviving spouse of one veteran, the pension or disability compensation dependency and indemnity beneficiary is not barred from receiving becomes payable under the other law, compensation (DIC) must elect to death pension, death compensation, or benefits at the higher rate will not be receive one or the other benefit. DIC due to the death of a different paid for any date before the date of (1) Persons currently receiving death veteran. receipt of an election. benefits. (i) A person who is currently (c) Limitation: a surviving spouse is (2) Incarcerated veterans. An election receiving death compensation may elect entitled to payment of only one award to receive disability compensation in to receive DIC. of death benefits at a time based on the lieu of pension is not required for an (ii) An election to receive DIC instead death of more than one veteran to whom incarcerated veteran who does not have of death compensation is irrevocable the surviving spouse was married—(1) a dependent spouse or child. once the election becomes final under Payment limitation. VA may not pay (Authority: 38 U.S.C. 501(a), 1542, 5304) § 5.742. There is no right to reelection. more than one death pension, death compensation, or DIC award at a time to Cross Reference: § 5.1, for the (2) Persons claiming entitlement to a surviving spouse based on the death definition of ‘‘custody of a child’’. service-connected death benefits. VA will treat a claim for service-connected of more than one veteran to whom the § 5.758 Electing Improved Pension instead death benefits as a claim for DIC, subject surviving spouse was married. of Old-Law Pension or Section 306 Pension. (2) Election. A surviving spouse who to confirmation by the claimant, unless is eligible for death pension, death (a) Right to elect Improved Pension. the claimant specifically requests death compensation, or DIC because of the Except as otherwise provided in this compensation. deaths of more than one veteran to section, a pension beneficiary who was (b) Limitation of election. An election whom he or she was married may elect entitled on December 31, 1978, to of DIC may not be filed or withdrawn or reelect benefits based on the death of receive Old-Law Pension or Section 306 after the death of the surviving spouse, any one such deceased spouse. Benefits Pension, may elect at any time to child, or parent. See § 5.742(c) payable in the elected case will be offset receive Improved Pension instead. An (concerning the finality of an election of by any payments the surviving spouse election to receive Improved Pension DIC when the beneficiary dies before received based on the death of the other instead of Old-Law Pension or Section negotiating a DIC check). 306 Pension is irrevocable once the spouse for the same period. The offset election becomes final under § 5.742. (Authority: 38 U.S.C. 1317(a)) will occur only if the surviving spouse There is no right to reelection. Cross Reference: § 5.512, Eligibility was entitled to benefits in the elected (b) When a veteran’s spouse is also a for death compensation or death case before the date of receipt of the veteran who is eligible to elect Improved pension instead of dependency and election under § 5.512 or § 5.431. Pension. If a veteran who is eligible to indemnity compensation. (Authority: 38 U.S.C. 5304(b)(1), (3)) elect Improved Pension under this section has a spouse who is also a § 5.760 Electing Improved Death Pension § 5.762 Payment of multiple VA benefits to veteran who is eligible to elect instead of dependency and indemnity a surviving child based on the service of Improved Pension under this section, compensation. more than one veteran. neither veteran may receive Improved A surviving spouse who is entitled to (a) A surviving child is entitled to Pension unless both elect to receive it. receive dependency and indemnity concurrent receipt of disability (c) When a beneficiary chooses to compensation (DIC) may elect to receive compensation or pension and death receive Old-Law Pension or Section 306 Improved Death Pension instead of DIC. benefits. If a surviving child is receiving

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disability compensation or pension in same period which VA previously made restrictions on concurrent receipt of his or her own right as a veteran, the under the prior award to or for that DEA and other VA benefits). surviving child is not barred from child. (Authority: 38 U.S.C. 3512, 3562) receiving: (6) Effect of a surviving child’s (1) An apportionment of disability election on a beneficiary of the other § 5.764 Payment of Survivors’ and compensation or pension based on parent in the same parental line. (i) Dependents’ Educational Assistance and another veteran’s disability; or When a surviving child elects benefits VA death pension or dependency and (2) Death pension, death because of the death of one veteran, and indemnity compensation for the same period. compensation, or dependency and a surviving spouse or another surviving indemnity compensation (DIC) due to child are eligible for benefits because of (a) Child who has reached age 18—(1) the death of another veteran. the death of another veteran in the same Election is required. (i) A child who has (b) A surviving child is entitled to parental line, VA will determine the reached age 18 and did not become more than one award of death benefits benefit rate to the surviving spouse or permanently incapable of self-support based on the death of more than one the other surviving child as if the before reaching age 18 (see § 5.227) may veteran. Except as otherwise provided surviving child making the election did not receive VA death pension or in paragraph (c) of this section or in not exist. dependency and indemnity § 5.464, if a surviving child is receiving (ii) Effective date. If VA determines compensation (DIC) at the same time as death pension, death compensation, or that benefits payable to the surviving Survivors’ and Dependents’ Educational DIC as the surviving child of one spouse or the other surviving child Assistance under 38 U.S.C. chapter 35 veteran, the surviving child is not should be increased, reduced, or (DEA), and must elect between death barred from receiving death pension, discontinued as a result of the election pension or DIC and DEA. There is no death compensation, or DIC due to the or reelection, such increase, reduction, right of reelection. death of a different veteran. or discontinuance is effective the first (ii) A veteran receiving compensation (c) Exception: child with more than may not receive additional disability one parent in the same parental line.— day of the month after the month for which VA last paid benefits. compensation for a child who has (1) Definition. Same parental line means reached age 18 and did not become that the child has more than one veteran (Authority: 38 U.S.C. 5304(b)) permanently incapable of self-support father or more than one veteran mother § 5.763 Payment of multiple VA benefits to before reaching age 18 (see § 5.227) at for VA purposes. For example, the more than one child based on the service the same time the child receives DEA. child’s father and stepfather are both of the same veteran. (iii) A veteran receiving pension may veterans. not receive increased benefits based on (2) A surviving child is entitled to (a) Scope. This section applies when a child who has reached age 18 and did payment of no more than one death two or more children are eligible to not become permanently incapable of benefit due to the death of more than receive the same type of VA benefit self-support before reaching age 18 (see one parent in the same parental line. based on the service of a veteran, and § 5.227) at the same time the child Except for insurance and as provided in at least one child is also eligible to receives DEA. See §§ 5.400(c) and 5.416. this paragraph (c), VA cannot pay more receive a different type of VA benefit than one death benefit to or for a based on the service of the same (2) Effect of election on another surviving child because of the death of veteran. The types of VA benefits beneficiary when there is more than one more than one parent in the same referred to in this section are as follows: parent in the same parental line. In parental line. (1) Dependency and indemnity cases where a child has more than one (3) Exception: more than one death compensation (DIC); and parent in the same parental line, if the benefit is payable when the death of (2) Survivors’ and Dependents’ child elects to receive benefits based on both parents in the same parental line Educational Assistance (DEA). one parent, VA will consider the child’s occurred before June 9, 1960. If both (b) General rule. This paragraph (b) entitlement for purposes of determining fathers or both mothers died before June applies when one child is eligible for the entitlement and rate of another 9, 1960, a child who receives DIC for more than one type of VA benefit as survivor of that parent. For benefits one parent may receive death pension provided in paragraph (a) of this section based on the other parent’s service, VA for the other parent. Unless both fathers and that child chooses to receive a will determine the entitlement and rate or both mothers died before January 1, benefit that is different than the type the payable to the survivor of that parent as 1957, such a child may not receive DIC remaining child receives. Except as if the child did not exist. or death compensation for the other provided in paragraph (c) of this (3) Effective date. VA will discontinue parent. If both parents died before section, VA cannot: the electing child’s VA death pension or January 1, 1957, there is no prohibition (1) Increase the rate of payment to the DIC effective the day preceding the on concurrent receipt of death benefits. remaining child; or beginning date of the DEA allowance. (4) Surviving child’s right to elect or (2) Pay a rate to each remaining child VA will increase payments, pay a reelect. If a surviving child is entitled to that is greater than the rate payable if all reduced rate, or discontinue VA death benefits because of the death of more children were receiving the same type of pension or DIC to the remaining than one parent in the same parental VA benefit. beneficiaries effective the beginning line, the child has the right to elect or (c) Exception to general rule. The date of the DEA award to the child. reelect to receive benefits because of the limitation in paragraph (b) of this (b) Child who is under age 18 or death of either such parent. section does not apply if the child elects helpless. Generally, a helpless child or (5) Benefits that are awarded as a DEA. Unless the child electing DEA is a child who is under age18 may receive result of a surviving child’s reelection under age 18 or became permanently VA death pension or DIC at the same are subject to an offset. VA will grant incapable of self-support before time as DEA under 38 U.S.C. chapter 35. benefits to the electing child according reaching age 18 under § 5.227, VA will (c) Surviving spouse. A surviving to the child’s reelection. However, VA pay benefits to the remaining child as if spouse may receive VA death pension will offset the new award by subtracting the child electing DEA did not exist. See or DIC at the same time as DEA under the amount of any payments for the 38 CFR 21.3023(b) (pertaining to 38 U.S.C. chapter 35.

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(d) Additional criteria. Provisions veteran, spouse, surviving spouse, or claim for apportionment is filed by or concerning concurrent receipt of DEA fiduciary. for the spouse or child. and VA death pension or DIC are set (d) Apportionment of death benefits. (b) Pending appointment of fiduciary. forth in § 21.3023 of this chapter. Any amounts payable for children Pending the appointment of a guardian (Authority: 38 U.S.C. 3562) under §§ 5.780 and 5.781 will be equally or other fiduciary. divided among the children. (c) Veteran receiving hospital, § 5.765 Payment of compensation to a (e) Apportionment to a child not domiciliary, or nursing home care. (1) parent based on the service or death of residing with surviving spouse. The Incompetent veteran. (i) Spouse or multiple veterans. amount payable for a child in custody child. Where an incompetent veteran Neither receipt by a parent of of and residing with the surviving without a fiduciary is receiving hospital dependency and indemnity spouse will be paid to the surviving treatment, nursing home, or domiciliary compensation on account of the death of spouse. Amounts payable to a surviving care provided by the U.S. or a political a veteran, nor receipt by a parent of spouse for a child in his or her custody subdivision, his or her benefit may be pension or compensation on account of but residing with someone else may be apportioned for a spouse or child unless his or her military service, will bar apportioned if the surviving spouse is such benefit is paid to a spouse (‘‘as receipt by a parent of pension, disability not reasonably contributing to the wife’’ or ‘‘as husband’’) for the use of the compensation, or dependency and child’s support. veteran and his or her dependents. indemnity compensation on account of (ii) Dependent parent. Where an (Authority: 38 U.S.C. 5307, 5502(d)) the death or disability of any other incompetent veteran without a fiduciary person. § 5.771 Special apportionments. is receiving hospital treatment, nursing (Authority: 38 U.S.C. 5304(b)) (a) General. Without regard to any home, or domiciliary care provided by the U.S. or a political subdivision, his §§ 5.766–5.769 [Reserved] provision regarding apportionment other than § 5.774(b), (c), and (f), where or her disability compensation may be apportioned for a dependent parent, Subpart M—Apportionments to hardship is shown to exist, pension, unless such benefit is paid to a spouse Dependents and Payments to disability compensation, or dependency (‘‘as wife’’ or ‘‘as husband’’) for the use Fiduciaries and Incarcerated and indemnity compensation may be of the veteran and his or her Beneficiaries specially apportioned between the veteran and his or her dependent or dependents. Determining Eligibility for between the surviving spouse and a (2) Competent veteran.—(i) Section Apportionments child. Such an apportionment will be 306 Pension. Where the amount of Section 306 Pension payable to a § 5.770 Apportionment claims. based on the facts in the individual case. The apportionment may not cause married veteran is reduced to $50 (a) General.—(1) Veteran. All or part undue hardship to the person from monthly under § 5.726, an of the pension or disability whose benefits the apportionment is apportionment may be made to such compensation payable to any veteran made. veteran’s spouse upon an affirmative may be apportioned: (b) Factors that determine a special showing of hardship. The amount of the (i) For his or her spouse, child, or apportionment generally will be the dependent parents if the veteran is apportionment. In determining the basis for special apportionment, difference between $50 and the total incompetent and is being furnished amount of pension payable on hospital treatment, nursing home, or consideration will be given to such factors as: December 31, 1978. domiciliary care by the U.S., or any (ii) Improved Pension. Where the political subdivision thereof. (1) The amount of benefits payable; (2) The net worth, income, and amount of Improved Pension payable to (ii) If the veteran is not residing with a married veteran under 38 U.S.C. his or her spouse or the veteran’s child expenses of the beneficiary and any dependent on whose behalf 1521(b) is reduced to $90 monthly is not residing with the veteran, and the under § 5.722, an apportionment may be veteran is not reasonably discharging apportionment is claimed; and (3) The special needs of the veteran, made to such veteran’s spouse upon an his or her responsibility for the spouse’s affirmative showing of hardship. The or child’s support. his or her dependent, and the apportionment claimant. amount of the apportionment generally (2) Surviving spouse. Where a child of will be the difference between $90 and a deceased veteran is not living with the (c) Apportioned amount. The amount apportioned should generally be the rate payable if pension were being veteran’s surviving spouse, the paid under 38 U.S.C. 1521(c), including dependency and indemnity consistent with the total number of dependents involved. Ordinarily, the additional amount payable under 38 compensation (DIC) or pension U.S.C. 1521(e) if the veteran is so otherwise payable to the surviving apportionment of more than 50 percent of the veteran’s benefits would entitled. spouse may be apportioned. (d) Apportionment of additional constitute undue hardship while (b) Apportionment to a child on active disability compensation for dependent apportionment of less than 20 percent of duty. Except as provided in parent. Where additional disability his or her benefits would not provide a § 5.774(e)(2), no apportionment of compensation is payable for a parent reasonable amount for any apportionee. disability or death benefits will be made and the veteran or his or her guardian or changed solely because a child has (Authority: 38 U.S.C. 5307) neglects or refuses to contribute such an entered active duty. § 5.772 Veteran’s benefits apportionable. amount to the support of the parent, the (c) Apportionment if beneficiary additional disability compensation will providing for dependents. No A veteran’s benefits may be be paid to the parent upon receipt of a apportionment will be made where the apportioned: claim. veteran, the veteran’s spouse when paid (a) General. If the veteran is not ‘‘as wife’’ or ‘‘as husband’’, surviving residing with his or her spouse or his or (Authority: 38 U.S.C. 501(a), 5307, 5502, spouse, or fiduciary is providing for her child, the veteran is not reasonably 5503(a); Pub. L. 95–588, § 306, 92 Stat. 2497) dependents. The additional benefits for discharging his or her responsibility for Cross Reference: §§ 5.711, Payment to such dependents will be paid to the the spouse’s or child’s support, and a dependents due to the disappearance of

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a veteran for 90 days or more; 5.722, of the month after the month for which (Authority: 38 U.S.C. 5307) Adjustment of Improved Pension while VA last paid the apportionment. § 5.781 Eligibility for apportionment of a a veteran is receiving domiciliary or Note to paragraph (e)(2): In accordance surviving spouse’s dependency and nursing home care; 5.725, Resumption with § 5.770(b), if a child is included in an indemnity compensation. of Improved Pension and Improved existing apportionment to an estranged (a) Conditions under which Pension based on the need for regular spouse and then enters active duty, no apportionment may be made. The aid and attendance after a veteran is on adjustment in the apportioned award will be surviving spouse’s award of dependency temporary absence from hospital, made based on the child’s entry into service. and indemnity compensation (DIC) will domiciliary, or nursing home care or is (f)(1) To any beneficiary’s dependent be apportioned where there is a child discharged or released from such care; who: under 18 years of age and not in the 5.726, Reduction of Section 306 Pension (i) Is determined by VA to have been custody of the surviving spouse. The while a veteran is receiving hospital, guilty of mutiny, treason, sabotage, or surviving spouse’s award of DIC will not domiciliary, or nursing home care; rendering assistance to an enemy of the be apportioned under this paragraph (a) 5.729, Resumption of Section 306 U.S. or its allies; or for a child over age 18 years. Pension and Section 306 Pension based (ii) Participated in the acts that caused (b) Rates payable. The DIC share for on the need for regular aid and forfeiture for fraud or treasonable acts. each child under 18 years of age, attendance during a veteran’s temporary (2) After September 1, 1959, if a including those in the surviving absence from hospital, domiciliary, or veteran or other primary beneficiary: spouse’s custody as well as those who nursing home care or after released from (i) forfeited benefits for fraud or for a are not in such custody, will be the such care; 5.792, Institutional awards; treasonable act; or additional allowance payable for each 5.814, Apportionment when a primary (ii) was convicted of subversive dependent child, except when the facts beneficiary is incarcerated. activity after September 1, 1959. Cross Reference: §§ 5.676, Forfeiture and circumstances in a case warrant § 5.773 Veterans disability compensation. for fraud, 5.677, Forfeiture for special apportionment under § 5.771. Rates of apportionment of disability treasonable acts, and 5.678, Forfeiture Current and historical DIC rates can be compensation will be determined under for subversive activity. found on the Internet at http:// § 5.771. (g) Unless the estranged spouse of a www.va.gov or are available from any veteran files a claim for an Veterans’ Service Center. The share for § 5.774 Benefits not apportionable. apportionment. If there is a child of the the surviving spouse will be the VA will not apportion benefits: veteran not in his or her custody, an difference between the children’s share (a) If the total benefit payable does not apportionment will not be authorized and the total amount payable. permit payment of a reasonable amount unless a claim for an apportionment is § 5.782 Effective date of apportionment to any apportionee. filed by or for the child. grant or increase. (b) If a court of proper jurisdiction has (Authority: 38 U.S.C. 5307, 6103(b), 6104(c), (a) General rule. Except as provided in found the veteran’s spouse guilty of 6105(a)) paragraph (b) of this section, the adultery. §§ 5.775–5.779 [Reserved] effective date of an apportionment or an (c) If VA determines that the veteran’s increased apportionment is the first day spouse has lived with another person § 5.780 Eligibility for apportionment of of the month after the month in which and has openly held himself or herself pension. VA receives an apportionment claim or out to the public to be the spouse of that (a) Disability pension. Disability a claim for an increased apportionment. person unless: pension will be apportioned to the (b) Exceptions to general rule.—(1) (1) The spouse subsequently veteran’s spouse or child, if the veteran Claim for benefits is pending. This reconciled with the veteran and later is not residing with his or her spouse, paragraph (b)(1) applies if a veteran or became estranged from the veteran; or or if the veteran’s child is not residing surviving spouse (primary beneficiary) (2) The spouse had entered into the with the veteran, and the veteran is not has a claim for benefits pending on the relationship with the other person in reasonably discharging his or her date that VA receives an apportionment good faith. For purposes of this responsibility for the spouse’s or child’s claim. The effective date of the paragraph (c)(2), good faith means that support. Apportionment of these apportionment will be the effective date the spouse had a reasonable basis to benefits will be made under § 5.771. of the primary beneficiary’s award, or believe that the marriage to the veteran (b) Death pension.—(1) Old-Law the date the apportionment claimant’s was legally terminated (for example, Death Pension or Section 306 Death entitlement arose, whichever is later. due to trickery on the part of the Pension. Old-Law Death Pension or (2) Apportionment claimant not yet veteran). Section 306 Death Pension will be established as the beneficiary’s (d) If another person legally adopts a apportioned to a child of a deceased dependent. This paragraph (b)(2) veteran’s child, except VA may veteran who is not in the custody of the applies if VA receives an apportionment apportion the additional disability surviving spouse. Apportionment of claim within 1 year of the award of compensation payable to a veteran for these benefits will be made at the rates benefits to the primary beneficiary and the child or the additional dependency approved by the Under Secretary for the apportionment claimant has not and indemnity compensation payable to Benefits except when the facts and been established as a dependent on the a surviving spouse for the child. circumstances in a case warrant primary beneficiary’s award. The (e)(1) If the apportionment is claimed apportionment under § 5.771. effective date of the apportionment will for a child who is on active duty. (2) Improved Death Pension. be the effective date of the primary (2) If a child is receiving apportioned Improved Death Pension will be beneficiary’s award, or the date the benefits directly and then enters active apportioned to the veteran’s child if a apportionment claimant’s entitlement duty. The apportionment will be child of the deceased veteran is not in arose, whichever is later. discontinued and such benefits will be the custody of the surviving spouse. (3) Veteran’s or surviving spouse’s paid to the veteran. The effective date of Apportionment of these benefits will be benefits are reduced or discontinued. the discontinuance will be the first day made under § 5.771. Except as provided in paragraph (b)(4)

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of this section, this paragraph (b)(3) (4) Primary beneficiary no longer (2) manage his or her own affairs, applies if a veteran’s or surviving incarcerated. The effective date of including disburse funds without spouse’s benefits have been reduced or discontinuance or reduction of an limitation. discontinued but an apportionment of apportionment because the primary (b) Authority. (1) Agencies of original the benefits that would otherwise be beneficiary is no longer incarcerated is jurisdiction have sole authority to make payable to the primary beneficiary is specified in § 5.815 or § 5.816, official determinations of incompetency authorized. In this situation, the depending on the primary benefit being and competency for purposes of effective date of the apportionment is apportioned. insurance (38 U.S.C. 1922) and, subject the same as the date on which the (Authority: 38 U.S.C. 501(a), 5112) to § 13.56 of this chapter, disbursement primary beneficiary’s benefits were of benefits. Such determinations are reduced or discontinued, if VA receives § 5.784 Special rules for apportioned final and binding on field stations for the apportionment claim within 1 year benefits on death of beneficiary or these purposes. after that date and the apportionment apportionee. (2) Where the beneficiary is rated claimant is otherwise shown to be (a) Payment to person receiving incompetent, the Veterans Service entitled to an apportionment from that apportionment when the beneficiary Center Manager or Pension Management date. dies. If an apportionment has not been Center Manager will: (4) The primary beneficiary is paid and the beneficiary dies, then VA (i) Develop information as to the incarcerated. The effective date of an will pay the apportionee the unpaid beneficiary’s social, economic, and apportionment or increased apportionment through the first day of industrial adjustment; apportionment when the primary the month of the beneficiary’s death. (ii) Appoint or recommend beneficiary is incarcerated is specified Except as provided in paragraph (b) of appointment of a fiduciary as provided in § 5.814(e). this section, the unpaid apportionment in § 13.55 of this chapter; (iii) Select a method of disbursing (Authority: 38 U.S.C. 501(a), 5110) is not subject to payment as accrued benefits. payment as provided in § 13.56 of this § 5.783 Effective date of reduction or (b) Person receiving apportioned chapter or, in the case of a married discontinuance of apportionment. share of benefits dies.—(1) Receiving beneficiary, appoint the beneficiary’s (a) General rule. Except as otherwise apportionment of veteran’s benefits. If a spouse to receive payments as provided provided in this part, if VA reduces or person receiving an apportionment of a in § 13.57 of this chapter; and discontinues an apportionment because veteran’s benefits dies, then VA will pay (iv) Authorize disbursement of the the basis for the apportionment no any unpaid apportionment to the benefit. longer exists, then the effective date of veteran, if living. If the veteran is not (3) If, in the course of fulfilling the the reduction or discontinuance will be living, then the unpaid apportionment responsibilities assigned in paragraph the first day of the month after the is payable only as accrued benefits to (b)(2) of this section, the Veterans month in which the basis for the dependents of the veteran, under Service Center Manager or Pension apportionment ceased to exist. § 5.551(b)(1). If there is no eligible Management Center Manager develops (b) Exceptions to general rule.—(1) dependent claimant, then the unpaid evidence indicating that the beneficiary Death, divorce, or marriage of an apportionment is payable only as may be capable of administering the apportionee. The effective date of accrued benefits to the person who bore funds payable without limitation, he or discontinuance of an apportionment the expense of the deceased she will refer that evidence to the due to the death, divorce, or marriage of apportionee’s last sickness or burial agency of original jurisdiction with a the apportionee is the first day of the under § 5.551(e). statement as to his or her findings. The month of the event, except the effective (2) Receiving apportionment of agency of original jurisdiction will date of discontinuance of an surviving spouse’s death benefits. If a consider this evidence, together with all apportionment of Old-Law Pension or child receiving an apportionment of a other evidence of record, to determine Section 306 Pension will be January 1 surviving spouse’s dependency and whether its prior determination of of the calendar year immediately after indemnity compensation (DIC) or death incompetency should remain in effect. the event. pension dies, then the unpaid Reexamination may be requested as Note to paragraph (b)(1): The effective date apportionment is payable only as provided in § 5.102, if necessary to of discontinuance of the dependency accrued benefits to the veteran’s properly evaluate the beneficiary’s allowance on the primary beneficiary’s award surviving child who is entitled to death mental capacity to contract or manage due to the death, divorce, or marriage of the DIC or pension, under § 5.551(d)(1). If his or her own affairs. apportionee is determined in accordance there is no eligible surviving child (c) Medical opinion. Unless the with § 5.184 or § 5.477. claimant, then the unpaid medical evidence is clear and (2) Death or marriage of dependent of apportionment is payable only as convincing as to the person’s apportionee. The effective date of accrued benefits to the person. incompetency, the agency of original jurisdiction will make no determination discontinuance of an apportionment (Authority: 38 U.S.C. 5112(b)(1), 5121(a), due to the death or marriage of a child 5502(d)) of incompetency without a definite included in an existing apportionment expression regarding the question by the to an estranged spouse or another §§ 5.785–5.789 [Reserved] responsible medical authorities. custodian of the child is the first day of Incompetency and Payments to Considerations of medical opinions will the month after the month of the event. Fiduciaries and Minors be in accordance with the principles in (3) Primary beneficiary dies or paragraph (a) of this section. A entitlement ends. The effective date of § 5.790 Determinations of incompetency determination of incompetency should discontinuance of an apportionment and competency. be based upon all evidence of record, because the primary beneficiary dies or (a) Definition of mental and there should be a consistent loses entitlement to the primary benefit incompetency. A mentally incompetent relationship between the percentage of is the same effective date that applies to person is one who because of injury or disability, facts relating to commitment the discontinuance of the primary disease lacks the mental capacity to: (1) or hospitalization, and the benefit. contract; or determination of incompetency.

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(d) Presumption in favor of Veterans Service Center Manager or (2) Obviate the need for appointment competency. When the evidence is in Pension Management Center Manager: of another type of fiduciary. equipoise regarding a beneficiary’s (i) Those who are serving in or have Cross Reference: Section 13.61 of this mental capacity to contract or to manage been discharged from the military forces chapter, Payment to the chief officer of his or her own affairs, including to of the U.S.; and institution. disburse funds without limitation, VA (ii) Those who qualify for survivors (b) Non-VA hospital or institution. (1) will give the benefit of the doubt to the benefits as a surviving spouse. In an institutional award of pension or beneficiary and find that he or she is (4) Immediate payment to spouse of disability compensation, VA may pay to competent. See § 5.3(b)(3). incompetent veteran. Unless otherwise the chief officer of a non-VA hospital or (e) Due process. Whenever it is contraindicated by evidence of record, if institution on behalf of the veteran an proposed to make an incompetency a veteran has no guardian, VA may amount determined under § 13.61 of determination, the beneficiary will be immediately pay benefits to the spouse this chapter. notified of the proposed action and of of an incompetent veteran for the use of (2) Any excess funds held by the chief the right to a hearing as provided in the veteran and his or her dependents officer of a non-VA institution under § 5.83. Such notice is not necessary if prior to referral to the Veterans Service this section that are not necessary for the beneficiary has been declared Center Manager or Pension Management the benefit of the veteran will be incompetent by a court of competent Center Manager. See § 13.57 of this returned to VA or to a fiduciary, if one jurisdiction or if a guardian has been chapter. has been appointed. appointed for the beneficiary based Cross Reference: Part 13 of this title (3) If payments are being made to the upon a court finding of incompetency. regarding VA fiduciary activities. chief officer of a non-VA hospital or If a hearing is requested, it must be held (b) Payment to the parent of the child. institution, VA will deposit all sums prior to a rating decision of Where a child is in the custody of a otherwise payable in excess of the incompetency. Failure or refusal of the natural parent, adoptive parent, or institutional award and any beneficiary after proper notice to request stepparent, benefits payable to the child apportionments in Personal Funds of or cooperate in such a hearing will not may be paid to the parent as custodian Patients. preclude a rating decision based on the of the child. (c) Excess funds. Upon the death of an evidence of record. (c) Payment to custodian-in-fact. All institutionalized incompetent veteran (f) Effective date.—(1) Incompetency or any part of a benefit due a minor or with no surviving heirs, excess funds determination. The effective date of a incompetent adult, payment of which is will be returned to VA. determination of incompetency is the suspended or withheld because (d) Apportionment. An date of the rating decision finding payment may not be properly made to institutionalized incompetent veteran’s incompetency. (This paragraph (f)(1) an existing fiduciary, may be paid benefits may be apportioned to his or does not apply to an incompetency temporarily to the person having her dependents under § 5.771. determination made for insurance custody and control of the beneficiary. (e) Effective date for payment of purposes under 38 U.S.C. 1922.) See § 13.63 of this chapter. institutional award. The effective date of (2) Competency determination. If a (d) Payment to bonded officer of payment to the chief officer of a hospital beneficiary previously determined to be Indian reservation. Any benefits due an or institution is: incompetent is later determined to be incompetent adult or minor Indian, who (i) The first day of the month after the competent, the effective date of the is a recognized ward of the Government, month for which VA last paid benefits; determination of competency is the date may be awarded to the superintendent or the evidence of record shows the or other bonded officer designated by (ii) On an initial or resumed award, beneficiary regained competence. the Secretary of the Interior to receive the date of entitlement to benefits, (Authority: 38 U.S.C. 501(a), 5502) funds under 25 U.S.C. 14. See § 13.62 of subject to any amounts paid or withheld this chapter. for apportionment of benefits. § 5.791 General fiduciary payments. (e) Effective date for payment to a (f) Effective date for discontinuance of (a) Payments to a fiduciary and to or fiduciary. The effective date of payment institutional award. The effective date of on behalf of a beneficiary.—(1) Payment to a fiduciary is the first day of the discontinuance of payment to the chief to a fiduciary. VA may pay benefits to month after the month for which VA officer of the hospital or institution is a duly recognized fiduciary on behalf of last paid benefits to the beneficiary. the first day of the month after the a person who is mentally incompetent month: or who is a minor. Note to paragraph (e): The initial payment (1) A fiduciary is appointed; to the fiduciary will include amounts (2) Direct payment to or on behalf of (2) The veteran is discharged from the withheld for possible apportionments as well hospital or institution; or a beneficiary. If the Veterans Service as money in Personal Funds of Patients. Center Manager or Pension Management (3) The veteran is rated competent. Center Manager determines that it is in (Authority: 38 U.S.C. 5502) (Authority: 38 U.S.C. 501(a), 5307, 5502) the best interest of a mentally incompetent or minor beneficiary, VA § 5.792 Institutional awards. § 5.793 Limitation on payments for a child. may pay benefits, regardless of any legal (a) General. When an incompetent If a fiduciary has been appointed for disability on the part of the beneficiary, veteran entitled to pension or disability a child because the child is a minor, directly to: compensation is a patient in a hospital then VA will not pay benefits to that (i) The beneficiary; or or other institution, VA may pay all or fiduciary for any period beginning on (ii) A relative of the beneficiary, or part of the benefit to the chief officer of the date that the child attains the age of another person, for the use of the the hospital or institution for the majority under the law of the State beneficiary. veteran’s use and benefit if the Veterans where the child resides. For any period (3) Direct payment to certain minors. Service Center Manager or Pension beginning on that date, if payment is Unless otherwise contraindicated by Management Center Manager otherwise in order, then VA will pay evidence of record, payment will be determines that such payment will: benefits as follows: made directly to the following classes of (1) Adequately provide for the needs (a) Competent child reaches age of minors without any referral to the of the veteran; and majority. If the child is competent, then

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VA will pay benefits directly to the perform a testamentary act (execute a probation, work release, participation in child. Under these circumstances, VA designation or change of beneficiary or a community control program, will retroactively pay the child any execute a designation or change of commitment to a halfway house or benefits that were not paid for a period option), the following considerations residential re-entry center, or before the child attained the age of will apply: confinement in a foreign country’s majority. (a) Testamentary capacity means that prison. (b) Incompetent child reaches age of degree of mental capacity necessary to (2) Felony, for purposes of §§ 5.811 majority. If the child is incompetent, enable a person to perform a through 5.817, means any offense then VA will pay benefits to a fiduciary testamentary act. This generally requires punishable by death or incarceration for appointed for the child as a mentally that the insured: a term exceeding 1 year, unless incompetent adult unless benefits are (1) Reasonably comprehend the specifically categorized as a paid directly to the child under nature and significance of his or her misdemeanor under the law of the § 5.791(a)(2)(i). testamentary act, that is, the subject and prosecuting jurisdiction. extent of his or her disposition; (b) Classification of foreign offenses. § 5.794 Beneficiary rated or reported (2) Recognize the object of his or her incompetent. A felony includes an offense that is bounty; and prosecuted by a foreign country if the (a) General. VA will not routinely (3) Appreciate the consequences of suspend payments directly to a offense is equivalent to a felony under his or her testamentary act, the laws of the U.S. A misdemeanor beneficiary who is or may be uninfluenced by any material delusion incompetent while any of the following includes an offense that is prosecuted as to the property or persons involved. by a foreign country if the offense is is pending: (b) VA will consider all evidence of (1) Development of the issue of equivalent to a misdemeanor under the record, with emphasis being placed on laws of the U.S. incompetency; evidence pertaining to the mental (c) Length of incarceration. The 60- (2) Certification of a fiduciary by the condition of the insured at the time, or day periods of incarceration described Veterans Service Center Manager or nearest to the time, that the insured in §§ 5.811 through 5.813 begin on the Pension Management Center Manager; performed the testamentary act. or (c) There is a general but rebuttable day after the beneficiary is convicted of (3) A recommendation by the presumption that every insured person a felony (or misdemeanor for pension), Veterans Service Center Manager or possesses testamentary capacity when if the beneficiary is incarcerated as of Pension Management Center Manager performing a testamentary act. that date, even if the beneficiary is not that payments should be paid directly to Therefore, reasonable doubt should be sentenced on that date. For beneficiaries the beneficiary. resolved in favor of testamentary who are reincarcerated, such as after (b) Application. This policy applies to capacity. See § 5.3(b)(2). conditional release on probation or all cases including, but not limited to, parole, VA will begin counting a new cases in which: § 5.798 Payment of disability 60-day period on the first full day of (1) Notice or evidence is received that compensation previously not paid because reincarceration. a guardian has been appointed for the an incompetent veteran’s estate exceeded (d) Requirement to inform VA. A beneficiary; $25,000. claimant or beneficiary must inform VA (2) Notice or evidence is received that If a veteran who was denied payment when he or she becomes incarcerated the beneficiary has been committed to a of disability compensation under for: hospital; or § 3.853 of this chapter is subsequently (1) Conviction of a felony if the (3) The beneficiary has been rated rated competent for a continuous period person is claiming or receiving incompetent by VA. of more than 90 days, the withheld compensation, pension, or dependency disability compensation will be paid to § 5.795 Change of name of fiduciary. or indemnity compensation; or the veteran in a lump-sum. If a fiduciary changes his or her name (2) Conviction of a misdemeanor if the Cross Reference: § 3.853 of this title, person is claiming or receiving pension. because of marriage or divorce, VA will Incompetents; estate over $25,000 accept the fiduciary’s statement of the (denying payment of disability (e) Notice to the incarcerated name change. compensation to an incompetent beneficiary. VA will send notice to the incarcerated beneficiary that § 5.796 Child’s benefits to a fiduciary of an veteran who had no dependents and had an estate that exceeded $25,000, dependents may be entitled to an incompetent surviving spouse. apportionment while the beneficiary is If benefits are payable to a surviving during the period from November 1, 1990, through September 30, 1992). incarcerated. The notice will also spouse for a child and the child is include information explaining the separated from the surviving spouse (Authority: 38 U.S.C. 5505, as in effect before conditions under which VA may resume because of the surviving spouse’s Nov. 2, 1994) payments to the incarcerated beneficiary incompetency, no apportionment of §§ 5.799–5.809 [Reserved] after the beneficiary is released from benefits to the child is required. If the incarceration. fiduciary is adequately taking care of the Payments to Incarcerated Beneficiaries (f) Effective dates. Payments of needs of the child from the surviving disability compensation, dependency spouse’s estate, either voluntarily or § 5.810 Incarcerated beneficiaries— general provisions and definitions. and indemnity compensation, or pursuant to a decree of court, VA may (a) Definitions.—(1) Incarceration pension will be reduced or discontinued pay all amounts payable for the child to (whichever is appropriate under the fiduciary. means confinement in a Federal, State, or local prison, jail, or other penal §§ 5.811 through 5.813) on the 61st day § 5.797 Testamentary capacity for VA institution, including a private of incarceration after conviction of a insurance purposes. detention facility pursuant to an felony. Payments of pension will also be When VA refers a case to an agency agreement with a Federal, State, or local reduced on the 61st day of incarceration of original jurisdiction involving the unit of government. ‘‘Incarceration’’ after conviction of a misdemeanor. testamentary capacity of the insured to does not include house arrest, parole, (Authority: 38 U.S.C. 501(a), 1505, 5313)

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§ 5.811 Limitation on disability (2) The beneficiary was incarcerated § 5.814 Apportionment when a primary compensation during incarceration. on October 1, 1980, for conviction of the beneficiary is incarcerated. (a) General. VA will limit the amount felony and was awarded DIC after (a) Notice to dependents of of disability compensation paid to a September 30, 1980. (This paragraph incarcerated beneficiary. (1) When VA veteran who has been incarcerated for (a)(2) applies only to the payment of DIC limits or discontinues benefits under more than 60 days after conviction of a after September 30, 1980.) §§ 5.811 through 5.813, VA will send felony if: (b) Amount payable during notice to any dependent of the right to (1) The veteran committed the felony incarceration. VA will limit DIC to no apply for an apportionment if VA is after October 7, 1980; more than one-half the rate of disability aware of the dependent’s existence and (2) The veteran was incarcerated on compensation payable under 38 U.S.C. can obtain the necessary address. October 1, 1980, for conviction of the 1114(a) to a veteran rated 10 percent (2) If an apportionment is awarded, felony and was awarded disability disabled. VA will send notice to the apportionee compensation after September 30, 1980 (c) Parents’ DIC—Effect on non- that VA will immediately discontinue (This paragraph (a)(2) applies only to incarcerated parent. If two parents are the apportionment when the the payment of disability compensation both entitled to DIC and were living incarcerated beneficiary is released. The after September 30, 1980.); or together before the benefits payable to notice will also inform the apportionee (3) The veteran was incarcerated on one were reduced due to incarceration, that if the apportionee and the October 7, 1980, for conviction of the VA will determine entitlement to DIC incarcerated beneficiary do not live felony and remained incarcerated for for the other parent as if they were not together when the incarcerated that felony on December 27, 2001. (This living together. beneficiary is released, the apportionee paragraph (a)(3) applies only to the may submit a new apportionment claim. payment of disability compensation (d) Retroactive awards. Whenever DIC (b) Apportionment of disability after March 31, 2002.) is awarded to an incarcerated person, compensation or dependency and (b) Retroactive awards. Whenever any amounts due for periods prior to the indemnity compensation.—(1) Eligibility disability compensation is awarded to date of reduction under this section will for apportionment. (i) VA may an incarcerated person, any amounts be paid to the incarcerated person. apportion an incarcerated veteran’s due for periods prior to the date of (Authority: 38 U.S.C. 501(a), 1114, 5313) unpaid disability compensation to the reduction under this section will be veteran’s spouse, child, or dependent paid to the incarcerated person. § 5.813 Discontinuance of pension during incarceration. parent. (c) Amount payable during (ii) VA may apportion an incarcerated incarceration.—(1) Veteran rated 20 (a) General provision. VA will surviving spouse’s unpaid dependency percent or more disabled. For an discontinue pension payments to or for and indemnity compensation (DIC) to a incarcerated veteran who is rated 20 a person who has been incarcerated for child. percent or more disabled for service- more than 60 days after conviction of a (iii) VA may apportion an connected disabilities, VA will limit felony or of a misdemeanor. This incarcerated child’s unpaid DIC to the disability compensation to no more than section applies to any pension that VA surviving spouse or to another child. the rate payable under 38 U.S.C. 1114(a) administers under a public or private (2) Amount of apportionment. The for a veteran rated 10 percent disabled. law. apportionment amount of a beneficiary’s (2) Veteran rated less than 20 percent (b) Veteran entitled to pension and unpaid disability compensation or DIC disabled. For an incarcerated veteran disability compensation. When an benefits will be based on individual who is entitled to compensation and is incarcerated veteran is disqualified from need. In determining individual need, rated less than 20 percent disabled for receiving pension payments under this VA will consider factors such as: service-connected disabilities, VA will section but is also entitled to disability (i) The amount of benefits available to limit disability compensation to no compensation, VA will pay disability be apportioned; more than one-half the rate payable compensation in lieu of pension under (ii) The net worth, income, and under 38 U.S.C. 1114(a) for a veteran either of the circumstances described in expenses of the apportionment rated 10 percent disabled. This paragraphs (b)(1) or (2) of this section. claimant(s); and paragraph (c)(2) applies even if such a (1) If the veteran does not have a (iii) The special needs of the veteran is entitled to special monthly spouse or child, then the award of apportionment claimant(s). compensation under 38 U.S.C. 1114(k) disability compensation in such cases (c) Apportionment of veteran’s or (q). will be effective on the date pension is pension.—(1) Requirements. VA may Cross Reference: For the rule on total- discontinued under this section. apportion an incarcerated veteran’s unpaid pension to the veteran’s spouse disability ratings based on individual (2) If the veteran has a spouse or child or child if all of the following unemployability that would first but elects to receive disability conditions are met: become effective while a veteran is compensation after VA has notified the incarcerated, see § 5.284(b). (i) The veteran would continue to be veteran of the effect of electing entitled to pension if not for the (Authority: 38 U.S.C. 501(a), 1114, 5313; Pub. disability compensation on the amount L. 107–103, § 506, 115 Stat. 996–97) incarceration; available for apportionment, then the (ii) The annual income of the spouse § 5.812 Limitation on dependency and award of disability compensation will or child is such that Improved Death indemnity compensation during be effective on the later of the date VA Pension would be payable; incarceration. received the veteran’s election or the (iii) If the veteran was receiving Old- (a) General. VA will limit dependency date of discontinuance of pension under Law Pension, the spouse or child was and indemnity compensation (DIC) paid paragraph (a) of this section. (If the recognized by VA as the veteran’s to a beneficiary who has been veteran does not elect disability dependent before July 1, 1960; and incarcerated for more than 60 days after compensation, pension will (iv) If the veteran was receiving conviction of a felony if: nevertheless be discontinued under Section 306 Pension, the spouse or child (1) The beneficiary committed the paragraph (a) of this section.) was recognized by VA as the veteran’s felony after October 7, 1980; or (Authority: 38 U.S.C. 501(a), 1505) dependent before January 1, 1979.

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(2) Amount of apportionment. VA (ii) Consider any amounts that were an apportionment under § 5.814(b), will will apportion an amount of such paid to the primary beneficiary, but be considered as having been reunited unpaid pension equal to the lesser of: were due to the apportionee, as having with the beneficiary. (i) The amount of Improved Death been paid to the apportionee. (1) Effective date of apportionment Pension that would be payable to the (Authority: 38 U.S.C. 501(a), 1505, 5313) reduction or discontinuance. As soon as apportionee; or VA is informed that the beneficiary has (ii) The amount of pension that the § 5.815 Resumption of disability been released, VA will: veteran received for the month before compensation or dependency and (i) Discontinue the apportionment to incarceration. indemnity compensation upon a an apportionee with whom the (d) Allocation of death pension. The beneficiary’s release from incarceration. beneficiary is reunited effective the first effective date rules in paragraph (e) of (a) Effective date of benefit day of the month after the month for this section and in § 5.816(c) apply to resumption. Except as provided in which VA last paid the apportionment; the allocation of death pension under paragraph (d) of this section, if the and this paragraph (d). beneficiary remains entitled to disability (ii) Reduce an apportionment to an (1) If a surviving spouse is compensation or dependency and apportionee with whom the beneficiary disqualified from receiving pension indemnity compensation (DIC): is not reunited to the additional amount payments under § 5.813, VA may pay a (1) The effective date of resumption of payable to the beneficiary for the child the rate of Improved Death the full benefit rate upon a beneficiary’s apportionee effective the first day of the Pension that would be payable if the release from incarceration is the date of month after the month for which VA incarcerated surviving spouse did not release if VA is informed of the release last paid the apportionment. VA will exist. less than 1 year after the release. pay the beneficiary the full benefit rate (2) If a surviving child is disqualified Payment of the full benefit rate is minus the new apportionment amount from receiving pension payments under subject to paragraphs (b) and (c) of this effective on date of the apportionment § 5.813, VA may pay a surviving spouse section. reduction. or another child the rate of Improved (2) The effective date of resumption of (2) Retroactive payments to released Death Pension that would be payable if the full benefit rate is the date VA is beneficiary. For the period from the the incarcerated child did not exist. informed of the release if VA is effective date of resumption of the full (e) Effective date of apportionment informed of the release 1 year or more benefit rate to the effective date of the because of incarceration.—(1) General. after the release. Payment of the full discontinuance or reduction of the Except as provided in paragraph (e)(2) benefit rate is subject to paragraphs (b) apportionment, VA will retroactively of this section, the effective date of an and (c) of this section. pay the released beneficiary the full apportionment or allocation is the date (b) Benefits were apportioned and all benefit rate minus an amount equal to VA receives an apportionment claim. apportionees reunited. This paragraph the sum of: (2) Specific effective dates.—(i) (b) applies if VA apportioned benefits (i) The apportionment rate paid to the Disability compensation, dependency under § 5.814(b) and the released apportionee for that period; and and indemnity compensation, and beneficiary is reunited with all (ii) The incarcerated rate paid to the disability pension. The effective date of apportionees. For purposes of beneficiary for that period. an apportionment of disability paragraphs (b) and (c) of this section, a (d) Conviction overturned on appeal. compensation, dependency and dependent parent apportionee, receiving If a conviction is overturned on appeal indemnity compensation (DIC), or an apportionment under § 5.814(b), will and the beneficiary remains entitled to disability pension is the date of the be considered as having been reunited disability compensation or DIC, the reduction or discontinuance of benefits with the beneficiary. effective date of resumption of the full to the incarcerated primary beneficiary (1) Effective date of apportionment benefit rate is the date of reduction of (that is, the 61st day of incarceration discontinuance. As soon as VA is benefits. Payment of the full benefit rate following conviction) if VA receives an informed that the beneficiary has been is subject to paragraphs (b) and (c) of apportionment claim no later than 1 released, VA will discontinue the this section. year after the notice required by apportionment effective the first day of (Authority: 38 U.S.C. 501(a), 5313) § 5.810(e) (notifying the incarcerated the month after the month for which VA beneficiary that his or her dependents last paid the apportionment. § 5.816 Resumption of pension upon a may be entitled to an apportionment) (2) Retroactive payments to released beneficiary’s release from incarceration. and if any necessary evidence is beneficiary. For the period from the (a) Effective date of benefit received by VA no later than 1 year after effective date of resumption of the full resumption. If the beneficiary remains the date of VA’s request for the benefit rate to the effective date of the entitled to pension: evidence. discontinuance of the apportionment, (1) The effective date of resumption of (ii) Death pension. The effective date VA will retroactively pay the released pension upon a beneficiary’s release of an allocation of death pension is the beneficiary the full benefit rate minus from incarceration is the date of release date of the discontinuance of benefits to an amount equal to the sum of: if VA is informed of the release less than the incarcerated primary beneficiary (i) The apportionment rate paid to the 1 year after the release. Payment of (that is, the 61st day of incarceration apportionee for that period; and pension is subject to paragraphs (b) and following conviction) if evidence of (ii) The incarcerated rate paid to the (c) of this section. income is received by VA no later than beneficiary for that period. (2) The effective date of resumption of 1 year after the date of VA’s request for (c) Released beneficiary not reunited pension is the date VA is informed of the evidence. with all apportionees. This paragraph (c) the release if VA is informed of the (3) Retroactive awards. If VA applies if VA apportioned benefits release 1 year or more after the release. retroactively grants an apportionment or under § 5.814(b) and the released Payment of pension is subject to allocation under this section, VA will: beneficiary is not reunited with all paragraphs (b) and (c) of this section. (i) Not re-pay to the apportionee any apportionees. For purposes of (b) Disability pension was benefits previously paid to the primary paragraphs (b) and (c) of this section, a apportioned. This paragraph (b) applies beneficiary; and dependent parent apportionee, receiving if VA apportioned a veteran’s disability

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pension under § 5.814(c) or disability informed that the beneficiary has been dependency and indemnity compensation under § 5.814(b) because released, VA will reduce or discontinue compensation, or Improved Pension to, the veteran elected to receive disability the rate of Improved Death Pension paid for, or on behalf of a person for any compensation in lieu of disability to a surviving spouse or surviving child period during which that person is a pension under § 5.813(b)(2). under § 5.814(d), effective the first day fugitive felon. (1) Effective date of apportionment of the month after the month for which (b) Definitions.—(1) Fugitive felon discontinuance. As soon as VA is VA last allocated Improved Death means a person who is: informed that the beneficiary has been Pension. released, VA will discontinue the (2) Retroactive pension payments to (i) Fleeing to avoid prosecution for a apportionment effective the first day of released beneficiary. For the period felony or for an attempt to commit a the month after the month for which VA from the effective date of resumption of felony; last paid the apportionment. pension to the effective date of the (ii) Fleeing custody or confinement (2) Retroactive payments to released reduction or discontinuance of pension after conviction of a felony or beneficiary. For the period from the to a surviving spouse or surviving child, effective date of resumption of pension conviction of an attempt to commit a VA will retroactively pay the released felony; or to the effective date of the beneficiary the full benefit rate minus discontinuance of the apportionment, an amount equal to the difference (iii) Fleeing to avoid custody or VA will retroactively pay the released between: confinement for violating a condition of beneficiary the full benefit rate minus (i) The rate paid to the surviving probation or parole imposed for an amount equal to the sum of: spouse or surviving child under commission of a felony under Federal or (i) The apportionment rate paid to the § 5.814(d) for that period; and State law. apportionee for that period; and (ii) The incarcerated rate paid to the (ii) The rate that would have been (2) Felony. For purposes of this beneficiary for that period (under payable to the surviving spouse or § 5.817, felony refers to an offense that § 5.813(b) if the veteran was entitled to surviving child for that period if the is classified as a felony under the laws disability compensation at the released beneficiary’s pension had not of the place from which the person incarcerated rate). been discontinued under § 5.813. flees; however, it also includes an (c) Death pension was allocated. This (Authority: 38 U.S.C. 501(a), 1505) offense classified as a high paragraph (c) applies if VA allocated misdemeanor that would be a felony death pension under § 5.814(d). § 5.817 Fugitive felons. offense under Federal law. (1) Effective date of reduction or (a) General rule. VA will not pay or (Authority: 38 U.S.C. 5313B) discontinuance. As soon as VA is apportion disability compensation,

APPENDIX A TO PART 5—DISTRIBUTION OF PART 3 PROVISIONS [Note to users: The designation ‘‘introduction’’ in Appendices A and B refers to regulation text that introduces the paragraphs of a section. For example, ‘‘3.400 (introduction)’’ designates the text of 3.400 preceding 3.400(a)–(z) and ‘‘5.268(c)(1) (introduction)’’ designates 5.268(c)(1) preceding 5.268(c)(1)(i)–(iv)]

Part 3 provision Part 5 provision

1.9(b)(1) ...... 5.1 definition of ‘‘VA’’. 3.1(a) ...... 5.1 definition of ‘‘Armed Forces’’. 3.1(b) ...... 5.1 definition of ‘‘Reserve component’’. 3.1(c) ...... 5.1 definition of ‘‘Reserve’’ or ‘‘reservist’’. 3.1(d) ...... 5.1 definition of ‘‘Veteran’’. 3.1(e) ...... 5.20. 3.1(f) ...... 5.20. 3.1(g) ...... 5.1 definition of ‘‘Secretary Concerned’’. 3.1(h) ...... 5.1 definition of ‘‘Disharged or released from active military service’’. 3.1(i) ...... 5.1 definition of ‘‘State’’. 3.1(j) ...... 5.191. 3.1(k) ...... 5.1 definition of ‘‘Service-connected’’, 5.241(a), 5.241(b). 3.1(l) ...... 5.1 definition of ‘‘Nonservice connected’’. 3.1(m) (first sentence) ...... 5.660(b). 3.1(m) (second sentence) ...... 5.660(d). 3.1(m)(1) ...... 5.660(c). 3.1(m)(2) ...... 5.660(c). 3.1(m)(3) ...... 5.660(c). 3.1(n) ...... 5.1 definition of ‘‘Willful misconduct’’. 3.1(n) (introduction first sentence) ...... 5.1 definition of ‘‘Willful misconduct’’. 3.1(n) (introduction second sentence) ...... 5.661(f). 3.1(n)(1) ...... 5.1 definition of ‘‘Willful misconduct’’. 3.1(n)(2) ...... 5.1 definition of ‘‘Willful misconduct’’. 3.1(n)(3) ...... 5.661(b)(1). 3.1(o) ...... 5.1 definition of ‘‘Political subdivision of the U.S.’’. 3.1(p) ...... 5.1 definition of ‘‘Claim’’. 3.1(q) ...... 5.1 definition of ‘‘Notice’’. 3.1(r) ...... 5.151. 3.1(s) ...... No part 5 provision. 3.1(t) ...... No part 5 provision. 3.1(u) ...... 5.460(a). 3.1(v) ...... 5.460(b). 3.1(w) ...... 5.370(d).

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APPENDIX A TO PART 5—DISTRIBUTION OF PART 3 PROVISIONS—Continued [Note to users: The designation ‘‘introduction’’ in Appendices A and B refers to regulation text that introduces the paragraphs of a section. For example, ‘‘3.400 (introduction)’’ designates the text of 3.400 preceding 3.400(a)–(z) and ‘‘5.268(c)(1) (introduction)’’ designates 5.268(c)(1) preceding 5.268(c)(1)(i)–(iv)]

Part 3 provision Part 5 provision

3.1(x) ...... No part 5 provision. 3.1(y) (introduction) ...... 5.140(b)(1). 3.1(y)(1) ...... 5.140(a). 3.1(y)(2) ...... 5.140(b). 3.1(y)(3) ...... 5.140(a). 3.1(y)(4) ...... 5.140(b). 3.1(y)(5) ...... 5.140(b). 3.1(z) ...... 5.1 definition of ‘‘Nursing home’’. 3.1(aa)(1) ...... 5.1 definition of ‘‘Fraud’’. 3.1(aa)(2) ...... 5.1 definition of ‘‘Fraud’’. 3.2 ...... 5.20. 3.3(a)(1) ...... No part 5 provision. 3.3(a)(2) ...... No part 5 provision. 3.3(a)(3) ...... 5.371(b), 5.372(a). 3.3(a)(3)(i) ...... 5.372(b). 3.3(a)(3)(ii) ...... 5.372(b). 3.3(a)(3)(iii) ...... 5.372(b). 3.3(a)(3)(iv) ...... 5.372(b). 3.3(a)(3)(v) ...... 5.371(d). 3.3(a)(3)(vi)(A) ...... 5.380. 3.3(a)(3)(vi)(B)(1) ...... 5.380. 3.3(a)(3)(vi)(B)(2) ...... 5.380. 3.3(a)(3)(vi)(B)(3) ...... No part 5 provision. 3.3(a)(3)(vi)(B)(4) ...... No part 5 provision. 3.3(b)(1) ...... No part 5 provision. 3.3(b)(2) ...... No part 5 provision. 3.3(b)(3) ...... No part 5 provision. 3.3(b)(4) ...... 5.371(c). 3.3(b)(4)(i) ...... 5.372(b). 3.3(b)(4)(ii) ...... 5.372(c). 3.3(b)(4)(iii) ...... 5.371(d). 3.4(a) ...... 5.240(a). 3.4(a), 3.4(b)(1) ...... 5.240(a). 3.4(b)(2) ...... 5.240(b). 3.4(c)(1) ...... 5.560(b). 3.4(c)(2) ...... No part 5 provision. 3.5(a) ...... 5.510(a). 3.5(b) ...... 5.510(b)(1)(ii). 3.5(c) ...... 5.512. 3.5(d) ...... 5.510(c). 3.6(a) ...... 5.21(a). 3.6(b)(1) ...... 5.22(a), 5.23(a)(1), 5.23(b)(1). 3.6(b)(2) ...... 5.25(a)(1). 3.6(b)(3) ...... 5.25(b). 3.6(b)(4) ...... 5.24(a). 3.6(b)(5) ...... 5.24(b)(1). 3.6(b)(6) ...... 5.29(a)(1). 3.6(b)(7) ...... 5.22(b), 5.24(a), 5.29(a)(2). 3.6(c)(1) ...... 5.23(a)(2). 3.6(c)(2) ...... 5.25(a)(2). 3.6(c)(3) ...... 5.23(b)(2). 3.6(c)(4) ...... 5.24(c)(1). 3.6(c)(5) ...... 5.24(b)(2). 3.6(c)(6) ...... 5.25(c). 3.6(d)(1) ...... 5.23(a)(3), 5.25(a)(3). 3.6(d)(2) ...... 5.23(a)(3), 5.25(a)(3). 3.6(d)(3) ...... 5.24(c)(2). 3.6(d)(4) ...... 5.23(b)(3). 3.6(d)(4)(i) ...... 5.23(b)(4). 3.6(d)(4)(ii) ...... 5.23(b)(4). 3.6(d)(4)(iii) ...... 5.25(c). 3.6(e) ...... 5.29(b). 3.7(a) ...... 5.21(a). 3.7(b) ...... 5.31(c). 3.7(c) ...... 5.28. 3.7(d) ...... 5.28. 3.7(e) ...... 5.28. 3.7(f) ...... 5.24(a). 3.7(g) ...... 5.25(b)(1).

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Part 3 provision Part 5 provision

3.7(h) ...... 5.28. 3.7(i) ...... 5.28. 3.7(j) ...... 5.28. 3.7(k) ...... 5.28. 3.7(l) ...... 5.28. 3.7(m) ...... 5.23(b), 5.26(a)(3). 3.7(n) ...... 5.28. 3.7(o) ...... 5.26. 3.7(p) ...... 5.28. 3.7(q) ...... 5.25(a). 3.7(r) ...... 5.23(a). 3.7(s) ...... 5.28. 3.7(t) ...... 5.28. 3.7(u) ...... 5.28. 3.7(v) ...... 5.28. 3.7(w) ...... 5.28. 3.7(x) ...... 5.27(a), 5.27(b), 5.27(c). 3.7(y) ...... 5.28. 3.10 ...... 5.523. 3.11 ...... 5.663. 3.12(a) ...... 5.30(a), 5.30(c), 5.37(a) (first sentence). 3.12(b) ...... 5.30(d), 5.33. 3.12(c)(1)–(5) ...... 5.31(c). 3.12(c)(6) ...... 5.32, 5.33. 3.12(d) ...... 5.30(f). 3.12(e) ...... 5.34(c). 3.12(f) ...... 5.35(b). 3.12(g) ...... 5.35(c), 5.35(d). 3.12(h) ...... 5.36(a). 3.12(i) ...... 5.31(f), 5.36(b), 5.36(c). 3.12(j) ...... 5.31(e). 3.12(k)(1) ...... 5.30(c). 3.12(k)(2) ...... 5.30(e). 3.12(k)(3) ...... 5.30(e). 3.12a(a)(1) ...... 5.39(c)(1). 3.12a(a)(2) ...... 5.39(a), 5.39(d). 3.12a(b) ...... 5.39(a). 3.12a(c)(1) ...... 5.39(b)(1). 3.12a(c)(2) ...... 5.39(b)(2). 3.12a(d) ...... 5.39(d). 3.12a(e) ...... 5.39(f). 3.13(a) ...... 5.37(b). 3.13(b) ...... 5.37(c). 3.13(c) ...... 5.37(d). 3.14(a) ...... 5.38(b). 3.14(b) ...... 5.38(c). 3.14(c) ...... 5.38(b). 3.14(d) ...... 5.30(c). 3.15 ...... 5.21(b), 5.39(e). 3.16 ...... No part 5 provision. 3.17 ...... No part 5 provision. 3.20 ...... 5.695. 3.21 ...... 5.690. 3.22(a), 3.22(b), 3.22(c) ...... 5.521. 3.22(d) ...... 5.520(b). 3.22(e) ...... 5.522(a), 5.522(b). 3.22(f) ...... 5.522(c)(4). 3.22(g) ...... 5.522(c)(2), 5.522(c)(5), 5.522(d). 3.22(h) ...... No part 5 provision. 3.23(a) ...... 5.370, 5.400, 5.401(b). 3.23(a)(1) ...... 5.400(a). 3.23(a)(2) ...... 5.400(c). 3.23(a)(3) ...... 5.400(b). 3.23(a)(4) ...... 5.400(d). 3.23(a)(5) ...... 5.400(e). 3.23(a)(6) ...... 5.400(g). 3.23(a)(7) ...... 5.400(f). 3.23(b) ...... 5.370, 5.371(d). 3.23(c) ...... No part 5 provision.

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Part 3 provision Part 5 provision

3.23(d)(1) ...... 5.416(a), 5.416(b). 3.23(d)(2) ...... 5.390. 3.23(d)(3) ...... 5.391. 3.23(d)(4) ...... 5.370, 5.410(b)(1), 5.411(a), 5.411(c), 5.416(b), 5.416(c). 3.23(d)(5) ...... 5.370, 5.410(b)(2), 5.411(a), 5.411(c), 5.416(c). 3.23(d)(6) ...... 5.411(a). 3.23(d)(6) (second sentence) ...... 5.411(b). 3.24(a) ...... 5.370, 5.371(a), 5.371(c), 5.411(c). 3.24(b) ...... 5.400, 5.400(h), 5.401(b), 5.414(c)(3)(i), 5.435(a). 3.24(c) ...... 5.435(b)(1), 5.435(b)(2). 3.25 ...... 5.536. 3.26 ...... No part 5 provision. 3.27(a) ...... 5.401(a). 3.27(b) ...... 5.536(b). 3.27(c) ...... 5.589(a), 5.590(a). 3.27(d) ...... 5.580(b)(4). 3.27(e) ...... 5.536(b), 5.401(b). 3.28 ...... 5.471. 3.29(a) ...... 5.691(b). 3.29(b) ...... 5.421, 5.691(c). 3.29(c) ...... 5.691(b). 3.30 (introduction) ...... 5.425, 5.537. 3.30 (except (e)) ...... 5.425. 3.30(e) ...... 5.537(b). 3.31 (introduction) ...... 5.693(b). 3.31(a) ...... 5.693(a). 3.31(b) ...... 5.693(c), 5.693(c)(1). 3.31(c) ...... 5.693(c). 3.31(c)(1) ...... 5.693(c)(3). 3.31(c)(2) ...... 5.693(c)(8), 5.693(d). 3.31(c)(3) ...... 5.693(c)(4), 5.693(c)(7). 3.31(c)(4) ...... 5.693(c)(5). 3.31(c)(5) ...... 5.693(c)(6). 3.32 (introduction) ...... 5.697(a). 3.32(a)(1) ...... 5.697(a)(1). 3.32(a)(2) ...... 5.697(a)(2). 3.32(b) ...... 5.697(b). 3.40 ...... 5.610. 3.41 ...... 5.611. 3.42 ...... 5.613. 3.43(a) ...... 5.617(a). 3.43(b) ...... 5.617(b). 3.43(c) ...... 5.617(c). 3.50(a) ...... No part 5 provision. 3.50(b) (except (b)(2)) ...... 5.201(a), 5.203(b)(1). 3.50(b)(2) ...... 5.203(a)(2). 3.52 (introduction) ...... 5.200(a). 3.52(a) ...... 5.200(b)(1). 3.52(b) ...... 5.200(b)(2). 3.52(c) ...... 5.200(b)(3). 3.52(d) ...... 5.200(b)(4). 3.53(a) (first sentence) ...... 5.201(b) (introduction), 5.201(b)(2)(i). 3.53(a) (second sentence) ...... 5.201(b)(4). 3.53(b) (first sentence) ...... 5.201(b)(5). 3.53(b) (second sentence) ...... 5.201(b)(3). 3.53(b) (last sentence) ...... 5.201(b)(6). 3.54 (introduction) ...... 5.430 (introduction), 5.520(b)(1)(i). 3.54(a)(1) ...... 5.430(a). 3.54(a)(2) ...... 5.430(c). 3.54(a)(3) ...... 5.430(b). 3.54(b) ...... 5.561(b) and (c), except (c)(1). 3.54(c)(1) ...... 5.520(b)(1)(iv). 3.54(c)(2) ...... 5.520(b)(1)(ii). 3.54(c)(3) ...... 5.520(b)(1)(iii). 3.54(d) ...... 5.1 definition of ‘‘Child born of the marriage and child born before the marriage’’. 3.54(e) ...... 5.201(b)(1). 3.55(a)(1) ...... 5.203(c). 3.55(a)(2) ...... 5.203(d)(1)–(3).

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Part 3 provision Part 5 provision

3.55(a)(3) ...... 5.203(e)(1) except (e)(1)(iii), 5.203(e)(2). 3.55(a)(4) ...... No part 5 provision. 3.55(a)(5) ...... 5.203(d)(4). 3.55(a)(6) ...... 5.203(e)(1)(iii). 3.55(a)(7) ...... No part 5 provision. 3.55(a)(8) ...... 5.203(d)(4). 3.55(a)(9) ...... No part 5 provision. 3.55(a)(10)(i) ...... 5.203(f). 3.55(a)(10)(ii) ...... No part 5 provision. 3.55(b) ...... 5.228(b). 3.57(a) ...... 5.220 (except 5.220(b)(1)). 3.57(a)(1)(ii) ...... 5.220(b)(1). 3.57(a)(1)(iii) ...... 5.220(b)(2), 5.696(a). 3.57(b) ...... 5.226(a), 5.226(b). 3.57(c) (introduction) ...... 5.222(a), 5.222(c), 5.222(d). 3.57(c)(1) ...... No part 5 provision. 3.57(c)(2) ...... 5.223(b). 3.57(c)(3) ...... No part 5 provision. 3.57(d) ...... 5.1 definition of ‘‘Custody of a child’’. 3.57(d)(1) ...... 5.417(a). 3.57(d)(2) ...... 5.417(b), 5.435. 3.57(d)(3) ...... 5.417(c), 5.417(d). 3.57(e)(1) ...... 5.225(a). 3.57(e)(2) ...... 5.225(b)(1). 3.57(e)(3) ...... 5.225(d). 3.57(e)(4) ...... 5.225(b)(2). 3.58 ...... 5.224(a). 3.59(a) ...... 5.238(a). 3.59(b) (first sentence) ...... 5.238(a). 3.59(b) (second and third sentences) ...... 5.238(d)(1), 5.238(d)(2)(i). 3.60 ...... 5.416(a). 3.100 ...... 5.5. 3.102 (first sentence) ...... 5.4(b). 3.102 (third sentence) ...... 5.3(b)(2). 3.102 (second and seventh sentences) ...... 5.3(b)(3). 3.102 (fourth sentence) ...... No part 5 provision. 3.102 (fifth sentence) ...... No part 5 provision. 3.102 (six sentence) ...... 5.3(b)(5). 3.103(a) (first sentence) ...... 5.83(b). 3.103(a) (second sentence) ...... 5.4(a), 5.4(b). 3.103(a) (last sentence) ...... No part 5 provision. 3.103(b)(1) ...... 5.83(a), 5.83(b). 3.103(b)(2) ...... 5.83(a). 3.103(b)(3) ...... 5.83(c). 3.103(b)(4) ...... 5.84. 3.103(c)(1) ...... 5.82(a) (introduction), 5.82(a)(1), 5.82(c), 5.82(d)(1), 5.82(e)(2). 3.103(c)(2) ...... 5.82(b), 5.82(d)(2), 5.82(e)(1). 3.103(d) ...... 5.81. 3.103(e) ...... 5.80. 3.103(f) ...... 5.83(b). 3.104(a) ...... 5.160(a). 3.104(b) ...... 5.160(b). 3.105 (introduction first sentence) ...... 5.162(a), 5.164, 5.177(c), 5.177(i). 3.105 (introduction second sentence) ...... 5.177(b). 3.105 (introduction last sentence) ...... 5.177(a). 3.105(a) (first and second sentences) ...... 5.162(c). 3.105(a) (third and last sentences) ...... 5.162(f). 3.105(b) ...... 5.163. 3.105(c) ...... 5.177(d). 3.105(d) (first and second sentences) ...... 5.175(b)(1). 3.105(d) (third and fourth sentences) ...... 5.175(b)(2). 3.105(d) (fifth through last sentences) ...... 5.83(a), 5.177(c). 3.105(e) (first sentence) ...... 5.313(b) (first sentence). 3.105(e) (second and last sentences) ...... 5.83(a), 5.177(e). 3.105(f) (first sentence) ...... No part 5 provision. 3.105(f) (second and last sentences) ...... 5.83(a), 5.177(f). 3.105(g) ...... 5.83(a), 5.591(b)(5). 3.105(h) (first sentence) ...... No part 5 provision. 3.105(h) (second sentence) ...... 5.83(a).

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Part 3 provision Part 5 provision

3.105(h) (last sentence) ...... 5.177(h), 5.705. 3.105(i)(1) ...... 5.82(f) (introduction), 5.82(f)(2), 5.82(f)(3), 5.82(f)(4), 5.83(i)(1)(ii). 3.105(i)(2) ...... 5.82(e)(4), 5.82(f)(1), 5.82(f)(5). 3.106(a) ...... 5.683(a), 5.683(b), 5.683(c). 3.106(b) ...... 5.683(e)(1). 3.106(c) ...... 5.683(e)(2). 3.106(d) ...... 5.683(d)(1). 3.106(e) ...... 5.683(d)(2). 3.107 ...... 5.525. 3.108 ...... 5.132(a). 3.109(a)(1) (first sentence) ...... No part 5 provision. 3.109(a) (except (a)(1) first sentence) ...... 5.90(b) (except (b)(2)). 3.109(b) ...... 5.99. 3.110 ...... 5.100. 3.112 ...... 5.692. 3.114 ...... 5.152. 3.115(a) ...... 5.133(a). 3.115(b) ...... 5.133(c). 3.150 ...... 5.50. 3.151(a) ...... 5.51. 3.151(b) ...... 5.383(c). 3.152 ...... 5.52. 3.153 ...... 5.131(a). 3.154 ...... 5.53. 3.155 ...... 5.54. 3.156(a) ...... 5.55. 3.156(b) ...... 5.153. 3.156(c) ...... 5.165. 3.157 ...... 5.56. 3.158(a) ...... 5.136. 3.158(b) ...... No part 5 provision. 3.158(c) ...... 5.712. 3.159 (except (a)(1) and (2)) ...... 5.90. 3.159(a)(1) and (2) ...... 5.1 definition of ‘‘Competent evidence’’. 3.160 ...... 5.57. 3.161 ...... No part 5 provision. 3.200 ...... 5.135. 3.201(a) ...... 5.131(b). 3.201(b) ...... 5.131(c). 3.202(a) ...... 5.132(b), 5.132(d). 3.202(b) ...... 5.132(c). 3.202(b)(5) ...... No part 5 provision. 3.202(c) ...... 5.132(e). 3.203(a) ...... 5.40(a). 3.203(a)(1) ...... 5.40(c). 3.203(a)(2) ...... 5.40(b). 3.203(a)(3) ...... 5.40(c). 3.203(b) ...... No part 5 provision. 3.203(c) ...... 5.40(d), 5.633(b)(2), 5.643. 3.203(c) (last sentence) ...... 5.39(c)(2). 3.204(a)(1) ...... 5.181(b). 3.204(a)(2) ...... 5.181(c). 3.204(b) ...... 5.181(c), 5.229 (introduction). 3.204(c) ...... 5.181(d). 3.205(a) ...... 5.192(c), except (c)(6)(i). 3.205(b) (except last sentence) ...... 5.192(b). 3.205(b) (last sentence) ...... 5.193. 3.205(c) ...... 5.200(b)(2). 3.206 (introduction) ...... 5.194(a). 3.206(a) ...... 5.194(b)(1), 5.194(b)(2). 3.206(b) ...... 5.194(c)(1). 3.206(c) ...... 5.194(c)(2). 3.207(a) ...... 5.196(a)(2). 3.207(b) ...... 5.196(b). 3.208 ...... 5.373. 3.209(a) ...... 5.229(a). 3.209(b) ...... 5.229(b). 3.209(c) ...... 5.229(c). 3.209(d) ...... 5.229(d).

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Part 3 provision Part 5 provision

3.209(e) ...... 5.229(e). 3.209(f) ...... 5.229(f). 3.209(g) ...... 5.229(b), 5.229(g). 3.210(a) ...... 5.221. 3.210(b) ...... 5.221. 3.210(c) (introduction) ...... 5.222(a), 5.222(c), 5.222(d). 3.210(c)(1) (introduction) ...... 5.222(b), 5.224(b). 3.210(c)(1)(i) ...... 5.222(b). 3.210(c)(1)(ii) ...... 5.224(b). 3.210(c)(2) ...... 5.223(a), 5.223(b)(2), 5.223(b)(3). 3.210(d) ...... 5.226(a), 5.226(b). 3.211(a) ...... 5.500(b). 3.211(b) ...... 5.500(d). 3.211(c) ...... 5.500(e). 3.211(d) ...... 5.500(c). 3.211(e) (first sentence) ...... 5.501(b). 3.211(e) (second sentence) ...... 5.501(c). 3.211(f) ...... 5.501(d). 3.211(g) ...... 5.501(d). 3.212(a) ...... 5.502(a), 5.503(b). 3.212(b) ...... 5.502(b), 5.502(c). 3.212(c) ...... 5.502(c). 3.213(a) (first sentence) ...... 5.181(a). 3.213(a) ...... 5.181(b), 5.182(a). 3.213(b) (first sentence) ...... 5.184(d). 3.213(b) (except first sentence) ...... No part 5 provision. 3.213(c) ...... 5.181(c), 5.182(b). 3.214 ...... 5.203(a)(1). 3.215 ...... 5.203(d)(4). 3.216 ...... 5.101(a), 5.101(b)(1), 5.101(b)(2), 5.101(e), 5.101(f). 3.217(a) ...... 5.130(a) (except (a)(3)). 3.217(a) (note) ...... 5.130(a). 3.217(b) ...... 5.130(b). 3.250(a)(1) ...... 5.300(a)(1). 3.250(a)(2) (first sentence) ...... 5.300(b) (introduction). 3.250(a)(2) (last sentence) ...... 5.300(b)(2)(i). 3.250(a)(3) ...... 5.300(b). 3.250(b) ...... 5.300(b)(1), 5.300(c). 3.250(b)(1) ...... 5.300(b)(1)(i). 3.250(b)(2) ...... 5.300(b)(2)(ii), 5.302(c). 3.250(c) ...... 5.300(b)(1)(ii). 3.250(d) ...... 5.300(e). 3.251(a)(1) ...... 5.510(d), 5.615(b). 3.251(a)(2) ...... 5.536(c). 3.251(a)(3) ...... 5.615(a), 5.615(b). 3.251(a)(4) ...... 5.536(d). 3.251(a)(5) ...... 5.536(e). 3.251(b) ...... 5.531(a), 5.534(a). 3.252(a) ...... 5.470(a)(4). 3.252(b) ...... 5.470(a)(5). 3.252(c) ...... 5.472(b)(1), 5.472(b)(4). 3.252(d) ...... 5.475(c). 3.252(e)(1) ...... No part 5 provision. 3.252(e)(2) ...... 5.473(c)(1). 3.252(e)(3) ...... 5.473(c)(2). 3.252(e)(4) ...... 5.475(b)(2)(ii). 3.252(f) ...... No part 5 provision. 3.256(a) ...... 5.709(a), 5.709(b). 3.256(b)(1) ...... 5.708(a)(1). 3.256(b)(2) ...... No part 5 provision. 3.256(b)(3) ...... 5.708(b). 3.256(b)(4) ...... 5.708(b). 3.256(c) ...... 5.708(e)(1). 3.257 ...... No part 5 provision. 3.260 (introduction) ...... 5.472(b)(4), 5.534(a). 3.260(a) ...... No part 5 provision. 3.260(b) ...... 5.478(a), 5.531(e). 3.260(c) ...... 5.534(b). 3.260(d) ...... 5.534(b).

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Part 3 provision Part 5 provision

3.260(e) ...... No part 5 provision. 3.260(f) ...... 5.475(a), 5.475(b), 5.534(b), 5.534(c), 5.536(g). 3.260(g) ...... 5.472(b)(3), 5.691(a). 3.261 (introduction) ...... (introduction), 5.472(a), 5.706(a). 3.261(a)(1) ...... No part 5 provision. 3.261(a)(2) ...... No part 5 provision. 3.261(a)(3) ...... 5.302(c). 3.261(a)(4) ...... 5.473(d). 3.261(a)(5) ...... No part 5 provision. 3.261(a)(6) ...... 4.472(f)(1), 5.533(b). 3.261(a)(7) ...... 5.304(a), 5.472(f)(8), 5.531(b)(2)(i). 3.261(a)(8) ...... No part 5 provision. 3.261(a)(9) ...... No part 5 provision. 3.261(a)(10) ...... No part 5 provision. 3.261(a)(11) ...... No part 5 provision. 3.261(a)(12) ...... 5.304(c), 5.472(f)(3), 5.533(a). 3.261(a)(13) ...... 5.304(f), 5.472(f)(4), 5.533(f). 3.261(a)(14) ...... 5.706(b)(23). 3.261(a)(15) ...... 5.745(b)(4). 3.261(a)(16) ...... No part 5 provision. 3.261(a)(17) ...... No part 5 provision. 3.261(a)(18) ...... No part 5 provision. 3.261(a)(19) ...... No part 5 provision. 3.261(a)(20) ...... 5.304(d), except (d)(6), 5.304(e), 5.533(c), 5.533(d), 5.472(e), 5.472(f)(7). 3.261(a)(21) ...... No part 5 provision. 3.261(a)(22) ...... 5.304(k), 5.472(c)(3), 5.472(f)(11), 5.532(e), 5.533(p). 3.261(a)(23) ...... No part 5 provision. 3.261(a)(24) ...... 5.303(b)(1). 3.261(a)(25) ...... No part 5 provision. 3.261(a)(26) ...... 5.472(f)(10), 5.531(b)(2)(ii). 3.261(a)(27) ...... No part 5 provision. 3.261(a)(28) ...... 5.304(g). 3.261(a)(29) ...... No part 5 provision. 3.261(a)(30) ...... No part 5 provision. 3.261(a)(31) ...... 5.304(i), 5.472(f)(5), 5.533(j). 3.261(a)(32) ...... 5.706(b)(1). 3.261(a)(33) ...... 5.706(b)(15), 5.706(21). 3.261(a)(34) ...... 5.706(b)(15), 5.706(21). 3.261(a)(35) ...... 5.706(b)(5). 3.261(a)(36) ...... 5.706(b)(3). 3.261(a)(37) ...... 5.706(b)(8) 5.706(b)(9). 3.261(a)(38) ...... 5.412(h), 5.533(k). 3.261(a)(39) ...... 5.706(b)(11)–(13). 3.261(a)(40) ...... 5.706(b)(6). 3.261(a)(41) ...... 5.706(b)(2). 3.261(a)(42) ...... 5.706(b)(24). 3.261(b)(1) ...... 5.474(b), 5.532(d), 5.707(c). 3.261(b)(2) ...... 5.532(c). 3.261(b)(3) ...... 5.474(c). 3.261(b)(4) ...... 5.532(c). 3.261(b)(5) ...... 5.474(d). 3.261(c) ...... 5.706. 3.262(a) (introduction) ...... 5.302(a), 5.472(b)(1), 5.531(a). 3.262(a)(1) ...... 5.303(c), 5.472(c)(3), 5.532(e). 3.262(a)(2) (except last sentence) ...... 5.303(a), 5.472(c)(1), 5.532(a). 3.262(a)(2) (last sentence) ...... 5.304(j), 5.472(f)(9), 5.533(o). 3.262(a)(3) ...... 5.472(c)(1), 5.532(a). 3.262(b) (introduction) ...... 5.531(c). 3.262(b)(1) ...... 5.531(c). 3.262(b)(2) ...... 5.473(a), 5.473(b)(2). 3.262(c) ...... 5.472(f)(1), 5.533(b)(1). 3.262(d) ...... 5.472(g)(1), 5.472(h), 5.533(b)(2). 3.262(e) (introduction) ...... 5.472(f)(12) (introduction), 5.533(g) (introduction), 5.533(g)(1), 5.706(b)(23). 3.262(e)(1) ...... 5.472(f)(12). 3.262(e)(2) ...... 5.472(f)(12). 3.262(e)(3) ...... 5.302(a). 3.262(e)(4) (first sentence) ...... 5.533(g) (introduction).

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Part 3 provision Part 5 provision

3.262(e)(4) (sentences two through four) ...... No part 5 provision. 3.262(f) ...... 5.472(f)(12)(ii), 5.472(g)(1), 5.472(g)(2), 5.533(b)(2), 5.533(e), 5.533(g)(5). 3.262(g)(1) ...... 5.533(g). 3.262(g)(2) ...... 5.472(f)(12)(iii). 3.262(h) (first sentence) ...... 5.472(b)(2)(i). 3.262(h) (except first sentence) ...... 5.304(b), 5.472(b)(2)(ii), 5.531(b)(2)(iii). 3.262(i)(1) ...... 5.303(b). 3.262(i)(2) ...... 5.472(f)(12) (introduction), 5.472(f)(12)(iv), 5.533(g) (introduction), 5.533(g)(4). 3.262(j)(1) ...... 5.472(f)(12) (introduction) 5.742(f)(12)(v), 5.533(g) (introduction), 5.533(g)(5). 3.262(j)(2) ...... 5.472(f)(12) (introduction) 5.742(f)(12)(v), 5.533(g) (introduction), 5.533(g)(5). 3.262(j)(3) ...... 5.472(f)(12)(v). 3.262(j)(4) ...... 5.303(b) (introduction), 5.303(b)(1), 5.472(c)(2), 5.532(b), 5.533(g) (introduction), 5.533(g)(6). 3.262(k)(1) ...... 5.302(d), 5.472(d)(1), 5.472(d)(2), 5.472(d)(4), 5.472(g)(3), 5.531(d)(1), 5.531(d)(2), 5.531(d)(4). 3.262(k)(2) ...... 5.302(d), 5.302(e), 5.531(d)(1), 5.531(d)(2), 5.472(d)(1), 5.472(d)(2). 3.262(k)(3) ...... 5.302(e), 5.472(d)(5). 3.262(k)(4) ...... 5.304(h), 5.472(d)(6). 3.262(k)(5) ...... 5.472(d)(7), 5.533(i). 3.262(k)(6) ...... 5.474(d). 3.262(l) (introduction first sentence) ...... 5.474(b)(4), 5.532(d)(4). 3.262(l) (introduction second and third sentences) ...... No part 5 provision. 3.262(l) (introduction fourth sentence) ...... 5.474(b)(1)(ii) (first sentence), 5.532(d)(1)(iii) (first sentence). 3.262(l) (introduction fifth sentence) ...... 5.707(c)(5). 3.262(l) (introduction sixth sentence) ...... 4.474(b)(5), 5.532(d)(5). 3.262(l) (introduction) last sentence ...... 5.474(b)(6), 5.532(d)(6). 3.262(l)(1) ...... 5.474(b)(1)(i). 3.262(l)(2) ...... 5.474(b)(2). 3.262(l)(3) ...... 5.474(b)(3). 3.262(l)(4) ...... 5.532(d)(1)(i). 3.262(m) ...... No part 5 provision. 3.262(n) ...... 5.474(c). 3.262(o) ...... 5.532(c). 3.262(p) ...... 5.474(c)(5), 5.532(c)(3). 3.262(q) ...... 5.706(b)(15), 5.706(21). 3.262(r) ...... 5.472(f)(2). 3.262(s) ...... 5.706(b)(5). 3.262(t) (introduction first sentence) ...... 5.304 (introduction), 5.472 (introduction), 5.533 (introduction). 3.262(t) (introduction second sentence) ...... 5.533(h). 3.262(t)(1) ...... 5.533(h). 3.262(t)(2) ...... 5.304(g), 5.472(f)(6). 3.262(u) ...... 5.706(b)(3). 3.262(v) ...... 5.706(b)(8). 3.262(w) ...... 5.533(k). 3.262(x) ...... 5.706(b)(11). 3.262(y) ...... 5.706(b)(6). 3.262(z) ...... 5.706(b)(2). 3.262(aa) ...... 5.706(b)(24). 3.263(a) ...... 5.476(b). 3.263(b) ...... 5.476(a). 3.263(c) ...... No part 5 provision. 3.263(d) ...... 5.476(c). 3.263(e) ...... 5.706(b)(5). 3.263(f) ...... 5.706(b)(3). 3.263(g) ...... 5.706(b)(6). 3.263(h) ...... 5.706(b)(2). 3.263(i) ...... 5.706(b)(24). 3.270 ...... No part 5 provision. 3.271(a) (introduction) ...... 5.370(c), 5.410, 5.410(c) (introduction). 3.271(a)(1) ...... 5.410(c)(1). 3.271(a)(2) ...... 5.410(c)(3). 3.271(a)(3) ...... 5.410(c)(2). 3.271(b) ...... 5.410(e). 3.271(c) ...... 5.413(f). 3.271(d) ...... 5.410(f) (except (f)(3)).

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Part 3 provision Part 5 provision

3.271(e) ...... No part 5 provision. 3.271(f)(1) ...... 5.423(a). 3.271(f)(2) ...... 5.423(b). 3.271(g) ...... 5.413(e). 3.271(h) ...... 5.370(a). 3.272 (introduction first sentence) ...... 5.412 (introduction). 3.272 (introduction last sentence) ...... 5.413(a). 3.272(a) ...... 5.412(b) (introduction), 5.706(b)(18)–(22). 3.272(b) ...... 5.412(b)(1), 5.706(b)(18)–(22). 3.272(c) ...... 5.412(c)(1). 3.272(d) ...... 5.412(d). 3.272(e) ...... 5.412(e). 3.272(f) ...... 5.412(f). 3.272(g) (introduction) ...... 5.413(b) (introduction). 3.272(g)(1) (introduction) ...... 5.413(b) (introduction). 3.272(g)(1)(i) ...... 5.413(b)(2)(i). 3.272(g)(1)(ii) ...... 5.413(b)(2)(i). 3.272(g)(1)(iii) ...... 5.413(b)(1). 3.272(g)(2) (introduction) ...... 5.413(b) (introduction). 3.272(g)(2)(i) ...... 5.413(b)(2)(ii). 3.272(g)(2)(ii) ...... 5.413(b)(2)(ii). 3.272(g)(2)(iii) ...... 5.413(b)(1). 3.272(g)(3) ...... 5.413(b)(1), 5.413(b)(2)(iii). 3.272(h) (introduction) ...... 5.413(c)(1)(i). 3.272(h)(1)(i) ...... 5.413(c)(2)(iv). 3.272(h)(1)(ii) ...... 5.413(c)(1)(i), 5.413(c)(1)(iii), 5.413(c)(2)(ii), 5.413(c)(2)(iii), 5.413(c)(3). 3.272(h)(2) ...... 5.413(c)(2)(i), 5.413(c)(2)(iii). 3.272(i) ...... 5.413(d). 3.272(j) ...... 5.412(a). 3.272(k)(2) ...... 5.706(b), 5.706(b). 3.272(l) ...... 5.412(b), 5.412(b)(3). 3.272(m) ...... 5.411(c). 3.272(n) ...... 5.412(g). 3.272(o) ...... 5.706(b)(5). 3.272(p) ...... 5.706(b)(3). 3.272(q) ...... 5.412(l)(1). 3.272(r) ...... 5.706(b)(8). 3.272(s) ...... 5.412(h). 3.272(t) ...... 5.706(b)(11). 3.272(u) ...... 5.706(b)(6). 3.272(v) ...... 5.706(b)(2). 3.272(w) ...... 5.706(b)(24). 3.272(x) ...... 5.412(l)(8). 3.273 (introduction) ...... 5.421. 3.273(a) ...... 5.421. 3.273(b) ...... 5.421. 3.273(c) ...... 5.410(c)(2). 3.273(d) ...... 5.410(c)(1), 5.410(c)(3). 3.274(a) ...... 5.414(c)(1), 5.414(d)(1) (first sentence). 3.274(b) ...... 5.414(e). 3.274(c) ...... 5.414(c)(2), 5.414(d)(1) (first sentence). 3.274(d) ...... 5.414(d)(1) (first sentence), 5.414(e). 3.274(e) ...... 5.414(c)(3)(ii). 3.275(a) ...... No part 5 provision. 3.275(b) ...... 5.414(a)(1), 5.414(b)(1), 5.414(b)(2). 3.275(c) ...... 5.414(a)(2). 3.275(d) ...... 5.414(d) (except (d)(1) (first sentence). 3.275(e) ...... 5.414(b)(3). 3.275(f) ...... 5.706(b)(5). 3.275(g) ...... 5.706(b)(3). 3.275(h) ...... 5.414(b)(4), 5.706(b)(7). 3.275(i) ...... 5.706(b)(6). 3.275(j) ...... 5.706(b)(2). 3.275(k) ...... 5.706(b)(24). 3.276(a) ...... 5.410(d). 3.276(b) (first and second sentences) ...... 5.414(a)(2)(i). 3.276(b) (last sentence) ...... 5.414(a)(2)(ii). 3.277(a) ...... 5.709(a). 3.277(b) ...... 5.182(a), 5.709(a), 5.709(b).

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Part 3 provision Part 5 provision

3.277(c)(1) ...... 5.708(a)(1). 3.277(c)(2) ...... 5.708(b)(2)(ii). 3.277(c)(3) ...... 5.708(b) (introduction), 5.708(b)(1), 5.208(b)(2)(i). 3.277(d) ...... 5.708(e)(1). 3.300 ...... 5.365. 3.301(a) ...... 5.660(a), 5.661(b)(1). 3.301(b) ...... 5.661(b)(2). 3.301(c) (introduction) ...... No part 5 provision. 3.301(c)(1) ...... 5.661(e). 3.301(c)(2) ...... 5.661(c)(1). 3.301(c)(3) ...... 5.661(c)(2). 3.301(d) ...... 5.661(c)(1), 5.661(c)(2), 5.662(a). 3.302 ...... 5.661(d). 3.303(a) (first and second sentences) ...... 5.241(a), 5.241(b). 3.303(a) (third sentence) ...... 5.242(a). 3.303(b) (first through third sentences) ...... 5.243(c). 3.303(b) (fifth sentence) ...... 5.243(d). 3.303(c) (first through fifth sentences) ...... 5.244(d). 3.303(c) (last sentence) ...... 5.251(a). 3.303(d) ...... 5.243(b). 3.304(a) ...... No part 5 provision. 3.304(b) (introduction first sentence) ...... 5.244(a). 3.304(b)(1) (first sentence) ...... 5.244(b)(1). 3.304(b)(2) ...... No part 5 provision. 3.304(b)(3) ...... 5.242(b). 3.304(c) (last sentence) ...... 5.91(b), 5.141(a). 3.304(d) ...... 5.249(a)(1). 3.304(e) (first sentence) ...... 5.141(c), 5.141(d). 3.304(e) (last two sentences) ...... 5.141(e). 3.304(f) (introduction) ...... 5.250(a). 3.304(f)(1) ...... 5.250(c). 3.304(f)(2) ...... 5.250(d). 3.304(f)(3) ...... 5.250(e). 3.304(f)(4) ...... 5.250(d). 3.304(f)(5) ...... 5.250(f). 3.305 ...... No part 5 provision. 3.306(a) ...... 5.245(a). 3.306(b) ...... 5.245(c). 3.306(b)(1) ...... 5.245(b)(3). 3.306(b)(2) ...... 5.245(b)(4). 3.306(c) ...... No part 5 provision. 3.307(a) (introduction) ...... 5.261(a) (introduction). 3.307(a)(1) (first and second sentences) ...... 5.261(b), 5.265(b). 3.307(a)(1) (last sentence) ...... 5.262(c), 5.264(a) (introduction). 3.307(a)(2) ...... 5.265(c). 3.307(a)(3) ...... 5.261(a) (introduction), 5.261(a)(1), 5.261(c) (introduction). 3.307(a)(4) ...... 5.265(a). 3.307(a)(5) ...... 5.264(a) (introduction), 5.264(a)(2). 3.307(a)(6)(i) ...... 5.262(b). 3.307(a)(6)(ii) ...... 5.262(a)(2). 3.307(a)(6)(iii) ...... 5.262(a)(1), 5.262(d). 3.307(a)(6)(iv) ...... 5.262(a)(1), 5.262(d). 3.307(b) ...... 5.260(b), 5.261(c). 3.307(c) ...... 5.260(b). 3.307(d)(1) (first and second sentences) ...... 5.260(c)(1). 3.307(d)(1) (third and last sentences) ...... 5.265(e). 3.307(d)(2) ...... No part 5 provision. 3.308(a) ...... No part 5 provision. 3.308(b) ...... 5.265(f). 3.309(a) ...... 5.261(c) (table). 3.309(b) ...... 5.265(a), 5.265(d). 3.309(c)(1) ...... 5.264(a) (introduction), 5.264(b). 3.309(c)(2) ...... 5.264(c). 3.309(d)(1) ...... 5.268(b). 3.309(d)(2) ...... 5.268(b). 3.309(d)(3)(i) ...... 5.268(a). 3.309(d)(3)(ii) ...... 5.268(c) (introduction). 3.309(d)(3)(ii)(A) ...... 5.268(c)(1) (introduction). 3.309(d)(3)(ii)(B) ...... 5.268(c)(2).

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Part 3 provision Part 5 provision

3.309(d)(3)(ii)(C) ...... 5.268(c)(3). 3.309(d)(3)(ii)(D)(1) ...... 5.268(c)(4) (introduction). 3.309(d)(3)(ii)(D)(1)(i) ...... 5.268(c)(4)(i). 3.309(d)(3)(ii)(D)(1)(ii) ...... 5.268(c)(4)(ii). 3.309(d)(3)(ii)(D)(2) ...... 5.268(c)(5). 3.309(d)(3)(ii)(D)(3) ...... 5.268(c)(4) (Note). 3.309(d)(3)(ii)(E) ...... 5.268(c)(6). 3.309(d)(3)(iii) ...... 5.268(d). 3.309(d)(3)(iv) (introduction) ...... 5.268(c)(1) (introduction). 3.309(d)(3)(iv)(A)–(D) ...... 5.268(c)(1)(i)–(iv). 3.309(d)(3)(v) ...... 5.268(e). 3.309(d)(3)(vi) ...... 5.268(c)(2). 3.309(d)(3)(vii) (introduction) ...... 5.268(c)(3) (introduction). 3.309(d)(3)(vii)(A)–(D) ...... 5.268(c)(3)(i)–(iv). 3.309(e) ...... 5.262(e). 3.309(e) (Note 2) ...... 5.262(e) (Note 1). 3.309(e) (Note 1) ...... 5.262(e) (Note 2). 3.310(a) ...... 5.246. 3.310(b) ...... 5.247. 3.310(c) ...... 5.248. 3.311(a)(1) (except last sentence) ...... 5.269(c)(1) (introduction first sentence) or NO PART 5. 3.311(a)(1) (last sentence) ...... 5.269(c)(2). 3.311(a)(2) (introduction) ...... 5.269(c)(1) (introduction last sentence) 5.269(d)(1). 3.311(a)(2)(i) ...... 5.269(c)(1)(i). 3.311(a)(2)(ii) ...... 5.269(c)(1)(ii). 3.311(a)(2)(iii) ...... 5.269(c)(1)(iii), 5.269(e)(1). 3.311(a)(3) ...... 5.269(e)(2)(ii). 3.311(a)(4)(i) ...... 5.269(c)(4). 3.311(a)(4)(ii) ...... 5.269(c)(3). 3.311(b)(1) ...... 5.269(a) (except first sentence). 3.311(b)(2) (introduction) ...... 5.269(b) (introduction). 3.311(b)(2)(i)–(xxiv) ...... 5.269(b)(1). 3.311(b)(3) ...... 5.269(b)(2). 3.311(b)(4) ...... 5.269(b)(3). 3.311(b)(5) ...... 5.269(b)(1). 3.311(c)(1) (introduction) ...... 5.269(e)(1) (introduction first sentence), 5.269(f)(1). 3.311(c)(1)(i) ...... 5.269(f)(1) (introduction second and last sentence). 3.311(c)(1)(ii) ...... 5.269(f)(3). 3.311(c)(2) ...... 5.269(f)(4) (introduction first sentence). 3.311(c)(3) ...... 5.269(f)(2). 3.311(d)(1) ...... 5.269(f)(4) (introduction second and third sentences). 3.311(d)(2) ...... 5.269(f)(4)(i)–(vi). 3.311(d)(3) ...... 5.269(f)(5), 5.269(f)(6). 3.311(e) ...... 5.269(f)(1)(i)–(vi). 3.311(f) ...... 5.269(g). 3.311(g) ...... 5.269(h). 3.312 ...... 5.504. 3.313 ...... 5.263. 3.314 ...... No part 5 provision. 3.315(a) ...... 5.220(b)(1). 3.315(b) ...... 5.368. 3.315(c) ...... 5.368. 3.316(a) ...... 5.267. 3.316(b) ...... 5.260(c). 3.317(a) ...... 5.266(a)–(c) (except (c)(3)). 3.317(b) ...... 5.266(c)(3). 3.317(c) ...... 5.271(a)–(c). 3.317(d) ...... 5.271(d). 3.317 Table ...... 5.271 Table. 3.317(e)(1) ...... 5.266(d)(1). 3.317(e)(2) ...... 5.266(d)(2); 5.271(c)(2)(ii). 3.318 ...... 5.270. 3.321(a) ...... 5.280(a). 3.321(b)(1) ...... 5.280(b)(1). 3.321(b)(2) ...... 5.380(c)(5). 3.321(b)(3) ...... 5.280(b)(3). 3.321(c) ...... 5.280(c). 3.322 ...... No part 5 provision. 3.323(a) ...... No part 5 provision.

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Part 3 provision Part 5 provision

3.323(a)(2) ...... No part 5 provision. 3.323(b) ...... 5.380(a). 3.324 ...... 5.281. 3.326 (introduction) ...... 5.91(a). 3.326(a) (first and second sentences) ...... 5.103(a) (first sentence). 3.326(b) ...... 5.91(a), 5.141(f). 3.326(c) ...... 5.91(a). 3.327(a) ...... 5.102(a), 5.102(b), 5.103(a) (second sentence). 3.327(b)(1) (first sentence) ...... 5.102(c)(3). 3.327(b)(1) (second sentence) ...... 5.102(c)(1). 3.327(b)(2) ...... 5.102(c)(2). 3.327(c) ...... 5.102(d). 3.328 ...... 5.92. 3.329 ...... Reserved. 3.330 ...... 5.103(e). 3.331–3.339 ...... Reserved. 3.340 ...... 5.283. 3.341 ...... 5.284. 3.342(a) ...... 5.380(a). 3.342(b), except (b)(5) ...... 5.380(c). 3.342(b)(5) ...... No part 5 provision. 3.342(c) ...... No part 5 provision. 3.343(a) ...... 5.285(a). 3.343(b) ...... 5.347. 3.343(c) ...... 5.285(b). 3.344(a) (first sentence) ...... 5.171(a). 3.344(a) (second sentence) ...... 5.171(d)(5)(i), 5.171(d)(5)(ii). 3.344(a) (third sentence) ...... 5.171(d)(5)(iii). 3.344(a) (fourth sentence) ...... 5.171(d)(1). 3.344(a) (fifth sentence) ...... 5.171(d)(2) (first sentence). 3.344(a) (sixth sentence) ...... 5.171(d)(2) (second sentence). 3.344(a) (seventh sentence) ...... 5.171(c)(2). 3.344(a) (eighth sentence) ...... No part 5 provision. 3.344(a) (ninth sentence) ...... 5.171(d)(6) (first and second sentences). 3.344(a) (last sentence) ...... 5.171(d)(6) (last sentence). 3.344(b) ...... 5.171(e). 3.344(c) (first sentence) ...... 5.171(b). 3.344(c) (second sentence) ...... No part 5 provision. 3.344(c) (last sentence) ...... 5.171(c)(1). 3.350 (introduction) ...... 5.322(a)(1) (introduction). 3.350(a) (introduction first sentence) ...... 5.323(a). 3.350(a) (introduction second sentence) ...... 5.323(b)(1). 3.350(a) (introduction third sentence) ...... 5.323(b)(2)(i). 3.350(a) (introduction last sentence) ...... 5.240(b) (second sentence), 5.323(b)(3). 3.350(a)(1)(i) ...... 5.323(c)(2), 5.232(c)(3). 3.350(a)(1)(ii) ...... No part 5 provision. 3.350(a)(1)(iii) ...... 5.323(c)(6). 3.350(a)(1)(iv) ...... 5.323(c)(7). 3.350(a)(2)(i) ...... 5.322(b), 5.322(c) (introduction). 3.350(a)(2)(i)(a) ...... 5.322(c)(1)–(3). 3.350(a)(2)(i)(b) ...... 5.322(c)(4). 3.350(a)(3)(i) ...... 5.323(d)(1). 3.350(a)(3)(ii) ...... 5.323(d)(2). 3.350(a)(4) ...... 5.322(g). 3.350(a)(5) ...... 5.323(e). 3.350(a)(6) ...... 5.323(f). 3.350(b) (introduction) ...... 5.324 (introduction), 5.324(a)–(e). 3.350(b)(1) ...... No part 5 provision. 3.350(b)(2) (except second sentence) ...... 5.324(c). 3.350(b)(2) (second sentence) ...... 5.322(f). 3.350(b)(3) ...... 5.324(e). 3.350(b)(4) (first sentence) ...... 5.324(d). 3.350(c)(1) (introduction) ...... 5.326 (introduction). 3.350(c)(1)(i) ...... 5.326(a). 3.350(c)(1)(ii) ...... 5.326(b). 3.350(c)(1)(iii) ...... 5.326(e). 3.350(c)(1)(iv) ...... 5.326(g). 3.350(c)(1)(v) ...... 5.326(i). 3.350(c)(2) ...... 5.322(d).

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Part 3 provision Part 5 provision

3.350(c)(3) ...... 5.326(i). 3.350(d) (introduction) (first sentence) ...... 5.328 (introduction). 3.350(d) (introduction) (except first sentence) ...... 5.322(e)(1), 5.322(e)(2). 3.350(d)(1) ...... 5.328(a). 3.350(d)(2) ...... 5.328(c). 3.350(d)(3) ...... 5.328(d). 3.350(d)(4) ...... 5.328(e). 3.350(e)(1) ...... 5.330 (introduction). 3.350(e)(1)(i) ...... 5.330(a). 3.350(e)(1)(ii) ...... 5.330(e) (introduction). 3.350(e)(1)(iii) ...... 5.330(b). 3.350(e)(1)(iv) ...... 5.330(c). 3.350(e)(2) ...... 5.330(d). 3.350(e)(3) (first sentence) ...... 5.330(e)(1). 3.350(e)(3) (last sentence) ...... 5.330(e)(2). 3.350(e)(3) ( second through fourth sentences) ...... No part 5 provision. 3.350(e)(4) ...... No part 5 provision. 3.350(f) ...... 5.325 (introduction), 5.327 (introduction), 5.329, 5.331(a). 3.350(f)(1)(i) ...... 5.325(a). 3.350(f)(1)(ii) ...... 5.326(c). 3.350(f)(1)(iii) ...... 5.325(b). 3.350(f)(1)(iv) ...... 5.326(d). 3.350(f)(1)(v) ...... 5.327(b). 3.350(f)(1)(vi) ...... 5.325(c). 3.350(f)(1)(vii) ...... 5.327(c). 3.350(f)(1)(viii) ...... 5.326(f). 3.350(f)(1)(ix) ...... 5.327(d). 3.350(f)(1)(x) ...... 5.327(a). 3.350(f)(1)(xi) ...... 5.328(b). 3.350(f)(1)(xii) ...... 5.329. 3.350(f)(2) (introduction) ...... No part 5 provision. 3.350(f)(2)(i) ...... 5.325(d). 3.350(f)(2)(ii) ...... 5.326(h). 3.350(f)(2)(iii) ...... 5.327(e). 3.350(f)(2)(iv) ...... 5.331(b)(1). 3.350(f)(2)(v) ...... 5.331(b)(2). 3.350(f)(2)(vi) ...... 5.331(b)(3). 3.350(f)(2)(vii) ...... 5.331(c). 3.350(f)(3) ...... 5.331(d). 3.350(f)(4) (introduction) ...... 5.331(e)(1). 3.350(f)(4)(i) ...... 5.331(d)(2), 5.331(e)(2). 3.350(f)(4)(ii) ...... 5.331(e)(3). 3.350(f)(5) ...... 5.331(f). 3.350(g) (introduction) ...... 5.346(b)(1)(i). 3.350(g)(1) ...... 5.346(b)(1)(i). 3.350(g)(2) ...... 5.346(b)(2). 3.350(h)(1) (first and second sentences) ...... 5.332(b)(1), 5.332(b)(2), 5.332(b)(3). 3.350(h)(1) (last sentence) ...... 5.332(a). 3.350(h)(2) ...... 5.332(a), 5.332(c)(1)(i), 5.322(c)(1)(ii), 5.332(c)(1)(v). 3.350(h)(3) (first and second sentences) ...... 5.332(b) (introduction), 5.332(c)(1) (introduction). 3.350(h)(3) (last sentence) ...... 5.332(c)(1) (introduction). 3.350(i) (introduction) ...... 5.333 (introduction). 3.350(i)(1) ...... 5.333(a). 3.350(i)(2) ...... 5.333(b). 3.351(a)(1) ...... 5.390 (introduction), 5.391 (introduction). 3.351(a)(2) ...... 5.321(a). 3.351(a)(3) ...... 5.511(a). 3.351(a)(4) ...... 5.511(c). 3.351(a)(5) ...... 5.390 (introduction), 5.391 (introduction). 3.351(a)(6) ...... No part 5 provision. 3.351(b) ...... 5.511(a). 3.351(c) (introduction) ...... 5.390 (introduction), 5.321(b) (introduction). 3.351(c)(1) ...... 5.321(b)(1), 5.321(b)(2), 5.511(b). 3.351(c)(2) ...... 5.321(b)(3), 5.511(b)(3). 3.351(c)(3) ...... 5.321(c), 5.511(a). 3.351(d) ...... 5.391(a). 3.351(e) ...... 5.511(c). 3.351(f) ...... 5.370, 5.391(b). 3.352(a) (first, sixth, and seventh sentences) ...... 5.320(a).

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Part 3 provision Part 5 provision

3.352(a) (second through fourth sentences) ...... 5.320(b). 3.352(a) (fifth sentence) ...... 5.320 (introduction). 3.352(a) (eighth and last sentences) ...... No part 5 provision. 3.352(b)(1) (introduction) ...... 5.332(c) (introduction). 3.352(b)(1)(i) ...... 5.332(c)(1)(i). 3.352(b)(1)(ii) ...... 5.332(c)(1)(ii). 3.352(b)(1)(iii) ...... 5.332(c)(1)(iii), 5.332(c)(1)(iv). 3.352(b)(2) (first sentence) ...... 5.332(c)(2). 3.352(b)(2) (second sentence) ...... 5.332(c)(3). 3.352(b)(2) (third sentence) ...... 5.332(c)(4). 3.352(b)(3) ...... 5.332(c)(5). 3.352(b)(4) ...... 5.332(c)(6). 3.352(b)(5) ...... No part 5 provision. 3.352(c) ...... 5.320(a) (introduction). 3.353 ...... 5.790. 3.354(a) ...... 5.1 definition of ‘‘Insanity’’. 3.354(b) ...... 5.33. 3.355 ...... 5.797. 3.356(a) ...... 5.227(a). 3.356(b) (introduction first sentence) ...... 5.220 (introduction), 5.220(b) (introduction), 5.220(b)(1). 3.356(b) (introduction second sentence) ...... 5.227(c)(2)(i). 3.356(b) (introduction third sentence) ...... 5.227(b)(2)(ii). 3.356(b)(1) ...... 5.227(b)(1)(i). 3.356(b)(2) (first sentence) ...... 5.227(d)(3). 3.356(b)(2) (last sentence) ...... 5.227(b)(1)(ii). 3.356(b)(3) (except last sentence) ...... 5.227(b)(2)(i), 5.227(c)(1). 3.356(b)(3) (last sentence) ...... 5.227(b)(1)(iv). 3.356(b)(4) ...... 5.227(b)(1)(iii). 3.357 ...... 5.367. 3.358 ...... No part 5 provision. 3.359 ...... 5.363. 3.360(a) ...... 5.361(a). 3.360(b) ...... 5.361(c). 3.360(c) ...... 5.361(b). 3.361 (except 3.361(a)) ...... 5.350. 3.361(a) ...... No part 5 provision. 3.362 (except 3.362(a)) ...... 5.352. 3.362(a) ...... No part 5 provision. 3.363 (except 3.363(a)) ...... 5.353. 3.363(a) ...... No part 5 provision. 3.370 ...... 5.340. 3.371 ...... 5.341. 3.372 ...... 5.342. 3.373 ...... Reserved. 3.374 ...... 5.343. 3.375 ...... 5.344. 3.376 ...... Reserved. 3.377 ...... Reserved. 3.378 ...... 5.345. 3.379 ...... No part 5 provision. 3.380 ...... 5.251(e). 3.381(a) ...... 5.360(a)(2). 3.381(b) (first sentence) ...... 5.360(b). 3.381(b) (second sentence) ...... 5.360(c)(3). 3.381(c) ...... 5.360(b)(2). 3.381(d) (first sentence) ...... 5.360(b) (introduction); 5.360(b)(1). 3.381(d) (last sentence) ...... 5.360(d) (introduction). 3.381(e) (introduction) ...... No part 5 provision. 3.381(e)(1) ...... 5.360(d)(1). 3.381(e)(2) ...... 5.360(d)(2). 3.381(e)(3) ...... 5.360(d)(3). 3.381(e)(4) ...... 5.360(d)(4). 3.381(e)(5) ...... 5.360(e)(1). 3.381(e)(6) ...... 5.360(e)(2). 3.381(f) (introduction) ...... 5.360(e) (introduction). 3.381(f)(1) ...... 5.360(e)(3). 3.381(f)(2) ...... No part 5 provision. 3.381(f)(3) ...... 5.360(d)(5). 3.381(f)(4) ...... 5.360(d)(6).

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Part 3 provision Part 5 provision

3.381(g) ...... 5.360(d)(7). 3.383(a) (introduction) ...... 5.282(a). 3.383(a)(1)–(5) ...... 5.282(b). 3.383(b)(1) ...... 5.282(c)(1), 5.282(c)(2). 3.383(b)(2) ...... No part 5 provision. 3.383(c) ...... 5.282(c)(3). 3.383(d) ...... 5.282(c)(4). 3.384 ...... 5.1 definition of ‘‘Psychosis’’. 3.385 ...... 5.366. 3.400 (introduction) ...... 5.150(a), 5.383(a)(1). 3.400(a) ...... No part 5 provision. 3.400(b)(1) (introduction) ...... 5.383(a). 3.400(b)(1)(i) ...... No part 5 provision. 3.400(b)(1)(ii)(A) ...... 5.383(a)(1). 3.400(b)(1)(ii)(B) ...... 5.383(c). 3.400(b)(2) ...... 5.311. 3.400(c)(1) ...... 5.431(b), 5.538(a). 3.400(c)(2) ...... 5.538(b). 3.400(c)(3) ...... No part 5 provision. 3.400(c)(4)(i) ...... 5.538(c). 3.400(c)(4)(ii) ...... 5.538(d). 3.400(c)(4)(iii) ...... No part 5 provision. 3.400(d) ...... Reserved. 3.400(e) (introduction) ...... 5.782(b)(1). 3.400(e)(1) ...... 5.782(a). 3.400(e)(2) ...... 5.782(b)(3). 3.400(f) ...... 5.752. 3.400(g) ...... 5.34(d), 5.35(e), 5.591(a)(4). 3.400(h)(1) ...... 5.150(a), 5.166. 3.400(h)(2) ...... 5.55. 3.400(h)(3) ...... No part 5 provision. 3.400(h)(4) ...... No part 5 provision. 3.400(i) ...... 5.351. 3.400(j)(1) ...... 5.743(a). 3.400(j)(2) ...... No part 5 provision. 3.400(j)(3) ...... No part 5 provision. 3.400(j)(4) ...... No part 5 provision. 3.400(j)(5) ...... No part 5 provision. 3.400(j)(6) ...... No part 5 provision. 3.400(k) ...... 5.167. 3.400(l) ...... No part 5 provision. 3.400(m) ...... No part 5 provision. 3.400(n) ...... 5.791(e). 3.400(o)(1) (first sentence) ...... 5.150(a). 3.400(o)(1) (second sentence) ...... 5.150(b). 3.400(o)(2) ...... 5.312(b). 3.400(p) ...... 5.152. 3.400(q)(1) ...... 5.153. 3.400(q)(2) ...... 5.55(e). 3.400(r) ...... 5.55. 3.400(s) ...... 5.683(e)(1)(ii). 3.400(t) ...... No part 5 provision. 3.400(u) ...... 5.235(b). 3.400(v) ...... 5.205. 3.400(w) ...... 5.203(b)(3). 3.400(x) ...... 5.790(f)(1). 3.400(y) ...... 5.790(f)(2). 3.400(z) ...... 5.27(c). 3.401(a)(1) ...... 5.335, 5.392. 3.401(a)(2) ...... 5.720(f), 5.724(d). 3.401(a)(3) ...... 5.336(a)(1), 5.336(a)(2). 3.401(b)(1)(i) ...... 5.183(b)(1), 5.183(b)(2), 5.183(b)(3). 3.401(b)(1)(ii) ...... 5.183(a)(1). 3.401(b)(2) ...... 5.183(a)(2). 3.401(b)(3) ...... 5.183(b)(4). 3.401(b)(4) ...... 5.183(b)(5). 3.401(c) ...... No part 5 provision. 3.401(d) ...... 5.792(e). 3.401(e) ...... 5.745(e).

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Part 3 provision Part 5 provision

3.401(f) ...... No part 5 provision. 3.401(g) ...... 5.346(b)(1)(ii). 3.401(h) ...... No part 5 provision. 3.401(i) ...... No part 5 provision. 3.402 (introduction) ...... No part 5 provision. 3.402(a) ...... 5.538(e). 3.402(b) ...... No part 5 provision. 3.402(c) ...... 5.545(a). 3.402(c)(1) ...... 5.392. 3.402(c)(2) ...... 5.545(c). 3.403(a) (introduction) ...... 5.234(a)(1). 3.403(a)(1) ...... 5.234(b). 3.403(a)(2) ...... 5.793. 3.403(a)(3) ...... 5.230. 3.403(a)(4) ...... No part 5 provision. 3.403(a)(5) ...... 5.183(b)(3). 3.403(b) ...... 5.591(a) (introduction), 5.591(a)(1), 5.591(a)(3). 3.403(c) ...... 5.591(a) (introduction), 5.591(a)(2), 5.591(a)(3). 3.404 ...... 5.545(a), 5.545(c). 3.405 ...... 5.614. 3.450 (except 3.450(a)(1)(ii), 3.450(f), (g)) ...... 5.770. 3.450(a)(1)(ii) ...... 5.780(a). 3.450(f) ...... No part 5 provision. 3.450(g) ...... No part 5 provision. 3.451 ...... 5.771. 3.452 ...... 5.772. 3.453 ...... 5.773. 3.454(a) ...... No part 5 provision. 3.454(b) (except (b)(2)) ...... 5.772(c). 3.458 ...... 5.774. 3.459 ...... No part 5 provision. 3.460 (second sentence of introduction) ...... No part 5 provision. 3.460(a) ...... No part 5 provision. 3.460(b) ...... 5.780(b)(1). 3.460(c) ...... 5.780(b)(2). 3.461(a) ...... 5.781(a). 3.461(b)(1) ...... 5.781(b). 3.461(b)(1) (last sentence) ...... No part 5 provision. 3.461(b)(2) ...... No part 5 provision. 3.461(b)(3) ...... No part 5 provision. 3.500 (introduction) ...... 5.705(a). 3.500(a) ...... 5.591(b) (introduction), 5.705(a). 3.500(b) (introduction) ...... 5.167(a). 3.500(b)(1) ...... 5.167(b). 3.500(b)(2) ...... 5.167(c). 3.500(c) ...... No part 5 provision. 3.500(d)(1) ...... 5.783(a). 3.500(d)(2) ...... No part 5 provision. 3.500(e) (first sentence) ...... 5.743(b). 3.500(e) (second sentence) ...... 5.750(a)(1), 5.751(a)(1). 3.500(e) (third sentence) ...... 5.750(b)(1) (last sentence), 5.751(e)(1) (last sentence). 3.500(f) ...... 5.433(b)(2), 5.434(a)(1)(ii), 5.434(a)(2), 5.434(a)(3), 5.434(b)(1)(ii), 5.434(b)(2)(ii). 3.500(g)(1) ...... 5.694, 5.783(b)(1). 3.500(g)(2)(i) ...... No part 5 provision. 3.500(g)(2)(ii) ...... 5.184(a), 5.314(d), 5.783(b)(2). 3.500(g)(3) ...... No part 5 provision. 3.500(h) ...... No part 5 provision. 3.500(i) ...... 5.743(b). 3.500(j) ...... No part 5 provision. 3.500(k) ...... 5.681(b)(1). 3.500(l) ...... No part 5 provision. 3.500(m) ...... 5.791(e). 3.500(n)(1) ...... 5.197(a), 5.783(b)(1). 3.500(n)(2)(i) ...... No part 5 provision. 3.500(n)(2)(ii) ...... 5.197(b), 5.314(c), 5.783(b)(2). 3.500(n)(3) ...... 5.203(b)(2). 3.500(o) ...... No part 5 provision. 3.500(p) ...... 5.618(b).

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Part 3 provision Part 5 provision

3.500(q) ...... 5.683(c). 3.500(r) ...... 5.177(c), 5.177(d), 5.177(e), 5.177(g), 5.591(b)(5). 3.500(s)(1) ...... 5.681(b)(2). 3.500(s)(2) ...... 5.681(b)(3). 3.500(t) ...... 5.712. 3.500(u) ...... 5.152. 3.500(v) ...... No part 5 provision. 3.500(w) ...... 5.101(c). 3.500(x) ...... 5.743(b), 5.754(d). 3.500(y) ...... No part 5 provision. 3.501 (introduction) ...... 5.705(a). 3.501(a) ...... 5.746(c). 3.501(b)(1) ...... 5.720(b) (introduction third sentence), 5.724(a)(2), 5.728(a)(2). 3.501(b)(2) ...... 5.720(b) (introduction third sentence). 3.501(b)(3) ...... 5.336(b). 3.501(c) ...... 5.711(d)(1). 3.501(d)(1) ...... No part 5 provision. 3.501(d)(2) ...... 5.184(a), 5.477(a) (introduction), 5.477(a)(1). 3.501(e)(1) ...... 5.177(f). 3.501(e)(2) ...... 5.177(e). 3.501(f) ...... 5.313(c). 3.501(g)(1) ...... 5.177(f). 3.501(g)(2) ...... 5.177(e). 3.501(h) ...... No part 5 provision. 3.501(i)(1) ...... 5.727(a)(4)(i) (first sentence). 3.501(i)(2)(i) ...... 5.726(a)(4). 3.501(i)(2)(ii) ...... No part 5 provision. 3.501(i)(2)(iii) ...... 5.726(d)(1). 3.501(i)(3) ...... 5.724(c). 3.501(i)(4) ...... No part 5 provision. 3.501(i)(5)(i) ...... 5.722(a)(3). 3.501(i)(5)(ii) ...... 5.722(d)(1). 3.501(i)(6) ...... 5.723 (except 5.723(d)). 3.501(j) ...... 5.792(f). 3.501(k) ...... No part 5 provision. 3.501(m) ...... No part 5 provision. 3.501(n) ...... No part 5 provision. 3.502 ...... 5.477(b). 3.502 (introduction) ...... 5.541, 5.705(a). 3.502(a)(1) ...... No part 5 provision. 3.502(a)(2) ...... No part 5 provision. 3.502(b) ...... 5.541. 3.502(c) ...... No part 5 provision. 3.502(d) ...... 5.197. 3.502(e)(1) ...... 5.545(b)(1). 3.502(e)(2) ...... No part 5 provision. 3.502(f)(1) ...... 5.723(b). 3.502(f)(2) ...... 5.723(c). 3.503(a) (introduction) ...... 5.705(a). 3.503(a)(1) ...... 5.231. 3.503(a)(2) ...... 5.774(e)(2). 3.503(a)(3)(i) ...... 5.234(c)(1). 3.503(a)(3)(ii) ...... 5.234(c)(2). 3.503(a)(4) ...... 5.197. 3.503(a)(5) ...... 5.696(g). 3.503(a)(6) ...... 5.233. 3.503(a)(7) ...... 5.762(c). 3.503(a)(8) ...... 5.764(a)(3) (first sentence). 3.503(a)(9) ...... 5.434. 3.503(a)(10) ...... 5.232. 3.503(b) ...... 5.591(b)(3). 3.504 ...... 5.545(b)(1). 3.505 ...... 5.618(c). 3.551(a) ...... 5.720(a), 5.722(b)(1), 5.726(a)(1), 5.726(b)(1), 5.727(b)(1). 3.551(b)(1) ...... 5.727(a)(1), 5.727(a)(3)(i), 5.727(a)(4)(i). 3.551(b)(2) ...... 5.727(c)(1). 3.551(b)(3) ...... 5.727(a)(4)(ii), 5.727(c)(2). 3.551(c)(1) ...... 5.726(a)(1), 5.726(a)(3), 5.726(a)(4). 3.551(c)(2) ...... 5.726(d)(1).

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Part 3 provision Part 5 provision

3.551(c)(3) ...... 5.726(c). 3.551(d) ...... No part 5 provision. 3.551(e) ...... 5.722(g). 3.551(e)(1) ...... 5.722(a)(1), 5.722(a)(2), 5.722(a)(3). 3.551(e)(2) ...... 5.722(d)(1). 3.551(e)(3) ...... 5.722(c). 3.551(e)(4) ...... 5.722(e). 3.551(e)(5) ...... No part 5 provision. 3.551(e)(6) ...... 5.722(b)(4). 3.551(f) ...... 5.726(a)(5). 3.551(g) ...... 5.726(a)(2), 5.727(a)(2). 3.551(h) ...... 5.722(f). 3.551(i) ...... 5.723. 3.552(a)(1) ...... 5.720(b), 5.720(d), 5.724(b). 3.552(a)(2) ...... 5.720(d), 5.724(b). 3.552(a)(3) (first sentence) ...... 5.720(c)(5). 3.552(a)(3) (second sentence) ...... 5.720(c)(6). 3.552(b)(1) ...... 5.720(b), 5.724(a), 5.728(a). 3.552(b)(2) ...... 5.720(b), 5.720(c)(1). 3.552(b)(3) ...... 5.720(a), 5.720(e), 5.724(c), 5.728(c). 3.552(c) ...... 5.720(b)(1). 3.552(d) ...... 5.720(c)(2). 3.552(e) ...... 5.728(a), 5.728(b). 3.552(e) (third and fourth sentences) ...... 5.724(a). 3.552(f) ...... 5.720(c)(3). 3.552(g) ...... 5.720(c)(3). 3.552(h) ...... 5.720(c)(4). 3.552(i) ...... 5.720(c)(2). 3.552(j) ...... 5.728(a). 3.552(k) ...... 5.720(f), 5.724(d). 3.552(k)(1) ...... 5.726(e)(1). 3.552(k)(2) ...... 5.726(e)(2). 3.552(k)(3) ...... 5.726(e)(2). 3.553 ...... Reserved. 3.554 ...... Reserved. 3.555 ...... Reserved. 3.556(a) ...... 5.720(a), 5.729(a). 3.556(a)(1) ...... 5.730(a). 3.556(b) ...... 5.729(b), 5.730(b). 3.556(c) ...... 5.729(c). 3.556(d) ...... 5.730(d). 3.556(d) (first sentence) ...... 5.729(d). 3.556(d) (third and fourth sentences) ...... 5.729(b). 3.556(e) ...... 5.729(d), 5.730(c). 3.556(f) ...... 5.720(a). 3.557 ...... Reserved. 3.558 ...... No part 5 provision. 3.559 ...... Reserved. 3.650(a) (introduction) ...... 5.544(a). 3.650(a) (last paragraph) ...... 5.544(d). 3.650(a)(1) ...... 5.544(b)(1). 3.650(a)(2) ...... 5.544(b)(2). 3.650(b) ...... 5.544(c). 3.650(c)(1) ...... 5.524(a)(1), 5.524(b), 5.524(c). 3.650(c)(2) ...... 5.524(a), except for (a)(1). 3.650(c)(3) ...... No part 5 provision. 3.651(a) ...... 5.710(a). 3.651(b) ...... 5.710(b). 3.651(c) ...... 5.710(c). 3.652(a) ...... 5.104(a). 3.652(a)(1) ...... 5.104(b), 5.104(c). 3.652(a)(2) ...... 5.104(c). 3.652(b) ...... 5.104(d). 3.653(a) ...... 5.713(a), 5.713(b)(1). 3.653(b) ...... 5.715(b) (introduction), 5.715(b)(1)(iii), 5.715(c), 5.715(d). 3.653(c) ...... 5.714(c), 5.714(d). 3.653(c)(1) ...... 5.714(b), 5.714(e). 3.653(c)(2) ...... No part 5 provision. 3.653(c)(3) ...... 5.715(b)(2), 5.715(d).

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Part 3 provision Part 5 provision

3.653(d) ...... 5.715(e). 3.654(a) (first sentence) ...... 5.746(b). 3.654(a) (second sentence) ...... 5.746(a). 3.654(b)(1) ...... 5.746(c). 3.654(b)(2) (first sentence) ...... 5.746(d)(1). 3.654(b)(2) (second sentence) ...... 5.746(d)(4). 3.654(b)(2) (third and fourth sentences) ...... 5.746(d)(2)(ii). 3.654(b)(2) (last sentence) ...... 5.746(d)(5). 3.654(c) ...... 5.746(e). 3.655(a) (first sentence) ...... 5.103(b) (introduction). 3.655(a) (second sentence) ...... 5.103(f) (except last sentence). 3.655(a) (last sentence) ...... No part 5 provision. 3.655(b) ...... 5.103(b)(1), 5.103(b)(2). 3.655(c)(1) (first sentence) ...... 5.103(c), 5.103(d)(1). 3.655(c)(1) (second sentence) ...... 5.103(d)(1). 3.655(c)(1) (last sentence) ...... 5.103(d)(2). 3.655(c)(2) ...... 5.103(d)(3). 3.655(c)(3) ...... 5.103(d)(2), 5.103(d)(5). 3.655(c)(4) ...... 5.103(d)(4). 3.656(a) ...... 5.693(c)(9), 5.711(a), 5.711(b). 3.656(b) ...... 5.711(d)(1). 3.656(c) ...... 5.711(d)(2). 3.656(d) ...... 5.693(c)(9), 5.711(c). 3.657 (introduction) ...... 5.433(a), 5.539(a), 5.540(a). 3.657(a) (introduction) ...... 5.433(b)(1), 5.422(b)(2), 5.539(b)(1), 5.539(b)(2). 3.657(a)(1) ...... 5.433(b)(1), 5.539(b)(1). 3.657(a)(2) ...... 5.433(b)(2), 5.539(b)(2). 3.657(b) ...... 5.434. 3.657(b)(1) ...... 5.540(b). 3.657(b)(2) ...... 5.540(c)(1), 5.540(c)(2). 3.658(a) ...... 5.750(a)(1). 3.658(b) ...... 5.761. 3.659 ...... 5.762(c). 3.659(b) ...... 5.764(a)(3) (second sentence). 3.660(a)(1) ...... 5.182(a), 5.300(d), 5.709(a). 3.660(a)(2) ...... 5.314(b), 5.314(c), 5.314(d), 5.422(a)(2), 5.477(a). 3.660(a)(2) (last sentence ) ...... 5.184(a). 3.660(a)(2) (second sentence) ...... 5.543(a). 3.660(a)(2) ...... 5.415. 3.660(a)(3) ...... 5.543(b). 3.660(b) ...... 5.422(b), 5.424(a), 5.424(b), 5.424(c). 3.660(b) (introduction) ...... 5.535, 5.542(a). 3.660(b)(1) ...... 5.535, 5.478(b), 5.542(a). 3.660(b)(2) ...... 5.542(b). 3.660(c) ...... 5.422(b). 3.660(c) (first sentence) ...... 5.183(b)(1), 5.183(b)(2), 5.183(b)(3). 3.660(c) (second sentence) ...... 5.183(a). 3.660(d) ...... 5.315, 5.415. 3.661(a)(1) ...... 5.708(d). 3.661(a)(2) ...... 5.708(d). 3.661(b)(1) ...... No part 5 provision. 3.661(b)(2)(i) ...... 5.708(e)(3). 3.661(b)(2)(ii) ...... 5.708(g). 3.661(b)(2)(iii) ...... 5.708(f). 3.662 ...... Reserved. 3.663 ...... Reserved. 3.664 ...... Reserved. 3.665(a) ...... 5.810(c), 5.810(e), 5.810(f), 5.811(a), 5.812(a), 5.814(a)(1). 3.665(b) ...... 5.810(a). 3.665(c) ...... 5.811(a), 5.812(a). 3.665(d)(1) ...... 5.811(c). 3.665(d)(2) ...... 5.811(c). 3.665(d)(3) ...... 5.812(b). 3.665(e) ...... 5.814(b). 3.665(f) ...... 5.782(b)(4), 5.814(e). 3.665(g) ...... 5.810(c). 3.665(h) ...... 5.814(a)(2). 3.665(i) ...... 5.815(a). 3.665(i)(1) ...... 5.815(b).

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Part 3 provision Part 5 provision

3.665(i)(2) ...... 5.815(c). 3.665(i)(3) ...... 5.815(b), 5.815(c). 3.665(j) ...... 5.811(c). 3.665(j)(3)(ii) ...... 5.811(b). 3.665(k) ...... 5.811(b), 5.812(d). 3.665(l) ...... 5.812(c). 3.665(m) ...... 5.815(d). 3.665(n)(1) ...... 5.817(a). 3.665(n)(2) ...... 5.817(b). 3.665(n)(3) ...... 5.817(b). 3.665(n)(4) ...... No part 5 provision. 3.666 (introduction) ...... 5.810(c), 5.810(e), 5.810(f), 5.813(a). 3.666(a) ...... 5.782(c). 3.666(a)(1) ...... 5.814(c). 3.666(a)(2) ...... 5.814(c). 3.666(a)(3) ...... 5.814(c). 3.666(a)(4) ...... 5.814(e). 3.666(b)(1) ...... 5.814(d). 3.666(b)(2) ...... 5.814(d). 3.666(b)(3) ...... 5.814(e). 3.666(b)(4) ...... 5.814(d). 3.666(c) ...... 5.816. 3.666(d) ...... 5.813(b). 3.666(e)(1) ...... 5.817(a). 3.666(e)(2) ...... 5.817(b). 3.666(e)(3) ...... 5.817(b). 3.666(e)(4) ...... No part 5 provision. 3.667(a)(1) ...... 5.696(b). 3.667(a)(2) ...... 5.696(b). 3.667(a)(3) ...... 5.696(c). 3.667(a)(4) ...... 5.696(c). 3.667(a)(5) ...... 5.696(c), 5.696(d). 3.667(b) ...... 5.696(f). 3.667(c) ...... 5.696(g). 3.667(d) ...... 5.696(h). 3.667(e) ...... 5.551(a). 3.667(f) ...... 5.696(i). 3.668 ...... Reserved. 3.669(a) ...... 5.676(b)(5), 5.677(b)(5), 5.678(b)(2)(i), 5.681(a)(1). 3.669(b) ...... 5.681(a)(2). 3.669(b)(1) ...... 5.676(b)(5). 3.669(b)(1) (last sentence) ...... 5.681(b)(1). 3.669(b)(2) ...... 5.677(b)(5). 3.669(b)(2) (last sentence) ...... 5.681(b)(2). 3.669(c) (first sentence) ...... 5.678(b)(2)(ii). 3.669(c) (last sentence) ...... 5.681(b)(3). 3.669(d)(1) ...... 5.676(c)(1), 5.677(c)(1), 5.682(b), 5.682(c). 3.669(d)(2) ...... 5.682(d). 3.700 (introduction) ...... 5.756. 3.700(a)(1)(i) ...... 5.746(b). 3.700(a)(1)(ii) ...... 5.24(c)(3), 5.746(a). 3.700(a)(1)(iii) ...... 5.746(e). 3.700(a)(2)(i) ...... No part 5 provision. 3.700(a)(2)(ii) ...... No part 5 provision. 3.700(a)(2)(iii) (first sentence) ...... 5.747(a)(1). 3.700(a)(2)(iii) ...... 5.747(d). 3.700(a)(2)(iv) ...... 5.747(a)(2). 3.700(a)(3) ...... 5.747(b), 5.747(d). 3.700(a)(4) ...... 5.464. 3.700(a)(5)(i) ...... 5.747(d). 3.700(a)(5)(i) (first sentence) ...... 5.747(c)(1). 3.700(a)(5)(ii) ...... 5.747(c)(2). 3.700(b)(1) ...... 5.761. 3.700(b)(2) ...... 5.762(a), 5.762(b). 3.700(b)(3) ...... 5.765. 3.701(a) (first and fourth sentences) ...... 5.757(e)(1). 3.701(a) (first and third sentences) ...... 5.757(d). 3.701(a) (first and second sentences) ...... 5.757(a), 5.757(b). 3.701(a) (fifth sentence) ...... 5.757(e)(3), 5.758(d).

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Part 3 provision Part 5 provision

3.701(a) (sixth and seventh sentences) ...... No part 5 provision. 3.701(a) ...... 5.757(c). 3.701(b) ...... 5.740(a). 3.701(c) ...... 5.757(f). 3.702(a) ...... 5.759(a)(1)(i), 5.759(a)(2). 3.702(b) ...... No part 5 provision. 3.702(c) ...... 5.759(b). 3.702(d)(1) ...... 5.759(a)(1)(ii). 3.702(d)(1) (second sentence) ...... 5.742(a), 5.742(c). 3.702(d)(2) ...... 5.760. 3.702(e) ...... No part 5 provision. 3.702(f) ...... No part 5 provision. 3.703 ...... 5.762(c). 3.703(c) ...... 5.764(a). 3.704(a) ...... 5.763. 3.704(b) ...... 5.536(h). 3.705 ...... Reserved. 3.706 ...... Reserved. 3.707 ...... 5.764(b), 5.764(c), 5.764(d). 3.707(a) ...... 5.764(a). 3.708(a)(1) ...... 5.750(a)(1). 3.708(a)(2) ...... 5.750(a)(2). 3.708(a)(3) ...... 5.750(b), 5.751(e). 3.708(a)(4) ...... 5.750(a)(1). 3.708(b)(1) (first sentence) ...... 5.751(a)(1). 3.708(b)(1) (second and third sentences, excluding intervening cross 5.751(c). reference). 3.708(b)(1) (second sentence) ...... 5.751(a)(2). 3.708(b)(1) (last sentence) ...... 5.751(e). 3.708(b)(2) ...... 5.751(b). 3.710 ...... 5.753. 3.711 ...... 5.461(a), 5.461(b), 5.461(c). 3.711 (first sentence) ...... 5.758(a). 3.711 (second sentence) ...... 5.742(a). 3.711 (last sentence) ...... 5.758(b). 3.712(a) ...... No part 5 provision. 3.712(b) ...... No part 5 provision. 3.713(a) ...... 5.463. 3.713(b) ...... No part 5 provision. 3.714 ...... No part 5 provision. 3.715 ...... 5.754(b), 5.754(c). 3.750 ...... 5.745. 3.750(d)(2) ...... 5.740(d). 3.751 ...... No part 5 provision. 3.752 ...... Reserved. 3.753 ...... 5.748. 3.754 ...... No part 5 provision. 3.800 ...... No part 5 provision. 3.801(a) ...... 5.581(a), 5.581(b). 3.801(b) ...... 5.581(d). 3.801(c)(1) ...... 5.581(f). 3.801(c)(2) ...... 5.581(c)(1). 3.801(d) ...... 5.581(c)(2). 3.801(e) ...... 5.581(e)(1). 3.802(a) ...... 5.580(a). 3.802(b) ...... 5.580(b)(1), 5.580(b)(2), 5.580(c), 5.580(d). 3.802(c) ...... 5.580(b)(3). 3.803 ...... 5.582. 3.803(d) ...... 5.554. 3.804 ...... 5.583. 3.805 ...... 5.584. 3.806 ...... 5.585. 3.807(a) ...... No part 5 provision. 3.807(b) ...... No part 5 provision. 3.807(c) ...... 5.586(b), 5.586(c). 3.807(d) ...... No part 5 provision. 3.808(a) ...... 5.603(c)(1). 3.808(b) ...... 5.603(c)(1), 5.603(c)(2). 3.808(c) ...... 5.603(d)(1), 5.603(e).

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Part 3 provision Part 5 provision

3.808(d) ...... 5.603(d)(3). 3.808(e) ...... 5.603(b)(1). 3.809 ...... 5.604. 3.809a ...... 5.605. 3.810(a) (introduction) ...... 5.606(b), 5.606(c). 3.810(a)(1) ...... 5.606(b)(1), 5.606(c)(1), 5.606(c)(2). 3.810(a)(2) ...... 5.606(b)(2), 5.606(b)(3), 5.606(c)(1), 5.606(c)(2). 3.810(b) ...... 5.606(d). 3.810(c)(1) ...... 5.606(e)(1). 3.810(c)(2) ...... 5.606(e)(2). 3.810(d) ...... 5.606(f). 3.811 ...... 5.587. 3.812 ...... 5.588. 3.813 ...... No part 5 provision. 3.814 ...... 5.589. 3.814(b) ...... Reserved. 3.814(e) (introduction) ...... 5.591(a) (introduction). 3.814(e)(1) ...... 5.591(a)(5). 3.814(e)(2) ...... 5.591(a)(4). 3.814(f) ...... 5.591(b) (introduction). 3.814(f) (introduction) ...... 5.591(b)(4). 3.814(f)(1) ...... 5.591(b)(1). 3.814(f)(2) ...... 5.591(b)(2). 3.815(a)–(h) ...... 5.590. 3.815(i) (introduction) ...... 5.591(a) (introduction), 5.591(a)(2), 5.591(a)(6). 3.815(i) ...... 5.591(a)(3). 3.815(i)(1) ...... 5.591(a)(5). 3.815(i)(2) ...... 5.591(a)(4). 3.815(j) (introduction) ...... 5.591(b)(4). 3.815(j) ...... 5.591(b) (introduction). 3.815(j)(1) ...... 5.591(b)(1). 3.815(j)(2) ...... 5.591(b)(2). 3.816 ...... 5.592. 3.850(a) ...... 5.791(a). 3.850(b) ...... 5.791(c). 3.850(c) ...... 5.791(b). 3.850(d) ...... 5.791(d). 3.851 ...... No part 5 provision. 3.852(a) ...... 5.792(a). 3.852(b) ...... 5.792(b). 3.852(c) ...... 5.792(d). 3.852(d) (first sentence) ...... 5.792(b). 3.852(d) (second sentence) ...... 5.792(c). 3.853(a), 3.853(b) ...... No part 5 provision. 3.853(c) ...... 5.798. 3.854 ...... 5.793(a). 3.855 ...... 5.794. 3.856 ...... 5.795. 3.857 ...... 5.796. 3.900(a) ...... 5.675(a). 3.900(b)(1) ...... No part 5 provision. 3.900(b)(2) ...... 5.676(b), 5.676(c), 5.677(b), 5.677(c), 5.678(b)(3). 3.900(c) ...... 5.675(b). 3.900(d) ...... No part 5 provision. 3.901(a) ...... 5.1 definition of ‘‘Fraud,’’ 5.676(a). 3.901(b) ...... 5.676(b)(2). 3.901(c) ...... 5.676(c)(2)(i). 3.901(d) ...... 5.676(b)(1). 3.901(d) (last sentence) ...... 5.676(b)(3)(i). 3.901(e) ...... 5.680(c)(1), 5.680(c)(2). 3.902(a) ...... 5.677(a). 3.902(b) ...... 5.677(b)(2). 3.902(c) ...... 5.677(c)(2). 3.902(d) ...... 5.677(b)(1). 3.902(d) (last sentence) ...... 5.677(b)(3)(i). 3.902(e) ...... 5.677(d). 3.903(a)(1) ...... 5.678(a)(2). 3.903(a)(1) ...... 5.678(a)(2). 3.903(a)(3) ...... 5.678(a)(1).

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Part 3 provision Part 5 provision

3.903(a)(4) ...... 5.678(a)(4). 3.903(a)(5) ...... 5.678(a)(5). 3.903(b)(1) ...... 5.678(b)(3)(i), 5.678(b)(3)(ii), 5.678(b)(3)(iv). 3.904(b) (last sentence) ...... 5.677(b)(2). 3.903(b)(2) ...... 5.678(b)(1). 3.903(c) ...... 5.682(a). 3.904(a) ...... 5.676(d). 3.904(b) (last sentence) ...... 5.677(b)(3)(ii). 3.904(b) ...... 5.677(c)(2). 3.904(c) (first sentence) ...... 5.678(b)(3)(iv). 3.904(c) (last sentence) ...... 5.678(c)(2). 3.905(a) ...... 5.679(a), 5.680(a). 3.905(b) ...... 5.679(b), 5.679(c)(2). 3.905(c) ...... 5.679(c)(1). 3.905(d) ...... 5.679(d), 5.679(e). 3.905(e) ...... 5.680(c)(3). 3.950 ...... No part 5 provision. 3.951 ...... 5.170(a). 3.951(a) ...... 5.173. 3.951(b) (first sentence) ...... 5.172(a). 3.951(b) (second sentence) ...... 5.172(b). 3.951(b) ...... 5.170(b). 3.952 ...... No part 5 provision. 3.953(a) ...... 5.174(a). 3.953(b) ...... No part 5 provision. 3.953(c) ...... 5.174(b). 3.954 ...... 5.653. 3.955 ...... Reserved. 3.956 ...... Reserved. 3.957 ...... 5.170(a), 5.170(b). 3.957 (first sentence) ...... 5.175(a)(1). 3.957 (last sentence) ...... 5.175(a)(2). 3.958 ...... 5.751(a)(2). 3.959 ...... 5.346(a). 3.960(a) ...... 5.461(d), 5.474(a), 5.758(c). 3.960(b) ...... 5.470(a). 3.960(c) ...... 5.470(c). 3.960(d) ...... 5.470(b), 5.478(c). 3.1000(a) introductory text ...... 5.1 definition of ‘‘Accrued benefits.’’ 3.1000(a)(1) ...... 5.551(b), 5.551(c). 3.1000(a)(2) ...... 5.551(d). 3.1000(a)(3) ...... 5.551(e). 3.1000(a)(4) ...... 5.551(e). 3.1000(a)(5) ...... 5.551(f). 3.1000(b) ...... 5.784. 3.1000(b)(1) ...... 5.784(b)(1). 3.1000(b)(2) ...... 5.784(a). 3.1000(b)(3) ...... 5.784(b)(2). 3.1000(c) ...... 5.552. 3.1000(c)(1) ...... 5.553. 3.1000(c)(2) ...... 5.551(g). 3.1000(d)(1) ...... 5.551(c), 5.566(d). 3.1000(d)(2) ...... 5.551(a), 5.551(e), 5.566(d). 3.1000(d)(3) ...... 5.551(a), 5.566(d). 3.1000(d)(4) ...... 5.1 definition of ‘‘Evidence in the file on the date of death.’’ 3.1000(d)(5) ...... 5.1 definition of ‘‘Evidence in the file on the date of death.’’ 3.1000(e) ...... 5.554. 3.1000(f) ...... 5.551(d), 5.554. 3.1000(g) ...... 5.554. 3.1000(h) ...... 5.554. 3.1001 ...... 5.567. 3.1001(b)(1) ...... No part 5 provision. 3.1002 ...... 5.551(f). 3.1003 (introduction) ...... 5.564(a)(1). 3.1003(a) ...... 5.564(a)(1). 3.1003(a)(1) ...... 5.564(a)(1). 3.1003(a)(2) ...... 5.564(b). 3.1003(b) ...... 5.564(a)(1). 3.1003(c) ...... 5.564(c).

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Part 3 provision Part 5 provision

3.1004 ...... Reserved. 3.1005 ...... Reserved. 3.1006 ...... Reserved. 3.1007 ...... 5.568. 3.1008 ...... 5.565(d)(2). 3.1009 (introduction) ...... 5.566(a). 3.1009(a) ...... 5.566(d). 3.1009(b) ...... 5.566(e). 3.1600 (first sentence) ...... 5.631(a), 5.631(b). 3.1600(a) ...... 5.638(a). 3.1600(b)(1) ...... 5.643. 3.1600(b)(2) ...... 5.643. 3.1600(b)(3) ...... 5.636. 3.1600(b)(4) ...... 5.643. 3.1600(c) ...... 5.644(a), 5.644(b)(1)–(4). 3.1600(d) ...... 5.631(a). 3.1600(e) ...... No part 5 provision. 3.1600(f) ...... 5.645(b). 3.1600(g) ...... 5.638(c)(1), 5.639(a), 5.639(c). 3.1601(a) ...... 5.633(a). 3.1601(a)(1) ...... 5.632. 3.1601(a)(2) ...... 5.632. 3.1601(a)(2)(iii) (second and third sentences) ...... 5.649(d). 3.1601(a)(3) ...... 5.645(c). 3.1601(b) ...... 5.633(b). 3.1601(b)(5) ...... 5.636. 3.1602(a) ...... 5.649(b), 5.649(e). 3.1602(b) ...... 5.649(a). 3.1602(c) ...... 5.649(c). 3.1602(d) ...... 5.650. 3.1603 ...... 5.636. 3.1604(a) ...... 5.651(a), 5.651(b). 3.1604(a)(1) ...... 5.651(d). 3.1604(a)(2) ...... 5.651(a), 5.651(b). 3.1604(b)(1) ...... 5.651(c)(1). 3.1604(b)(2) ...... 5.651(c)(1). 3.1604(b)(3) ...... 5.651(c)(2). 3.1604(c) ...... 5.651(a), 5.651(b). 3.1604(d) ...... 5.645(a). 3.1604(d)(1)(i)–(iv) ...... 5.645(a). 3.1604(d)(1)(v) ...... No part 5 provision. 3.1604(d)(2) (first sentence) ...... No part 5 provision. 3.1604(d)(3) ...... 5.645(a). 3.1604(d)(4) ...... 5.649(a). 3.1605 (introduction) ...... 5.644(a). 3.1605(a) ...... 5.644(b)(5), 5.644(c). 3.1605(a)(3) (last sentence) ...... 5.616. 3.1605(b) ...... 5.644(d). 3.1605(c) ...... No part 5 provision. 3.1605(d) ...... 5.644(b)(6). 3.1605(e) ...... No part 5 provision. 3.1606 ...... 5.635. 3.1607 ...... 5.634(b)(1). 3.1608 ...... 5.634(b)(2), 5.634(b)(3). 3.1609 ...... 5.652. 3.1610(a) ...... No part 5 provision. 3.1610(b) ...... 5.636. 3.1611 ...... No part 5 provision. 3.1612 ...... No part 5 provision. 3.2100 ...... 5.0. 3.2130 ...... 5.134. 3.2600 ...... 5.161.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS

Part 5 Provision Part 3 Provision Part 5 Section Title

Subpart A—General Provisions

5.0(a) ...... 3.2100 ...... Scope of applicability. 5.0(b) ...... New. 5.1 definition of ‘‘Accrued benefits’’ ...... 3.1000(a) introductory text ...... General definitions. 5.1 definition of ‘‘Active military service’’ ...... New. 5.1 definition of ‘‘Agency of original jurisdic- New. tion’’. 5.1 definition of ‘‘Alien’’ ...... New. 5.1 definition of ‘‘Application’’ ...... New. 5.1 definition of ‘‘Armed Forces’’ ...... 3.1(a). 5.1 definition of ‘‘Beneficiary’’ ...... New. 5.1 definition of ‘‘Benefit’’ ...... New. 5.1 definition of ‘‘Certified statement’’ ...... New. 5.1 definition of ‘‘Child born of the marriage 3.54(d) and child born before the marriage’’. 5.1 definition of ‘‘Claim’’ ...... 3.1(p). 5.1 definition of ‘‘Claim for benefits pending 3.1000(d)(5). on the date of death’’. 5.1 definition of ‘‘Claimant’’ ...... New. 5.1 definition of ‘‘Competent evidence’’ ...... 3.159(a)(1), 3.159(a)(2). 5.1 definition of ‘‘Custody of a child’’ ...... 3.57(d). 5.1 definition of ‘‘Direct service connection’’ .... New. 5.1 definition of ‘‘Discharged or released from 3.1(h). active military service’’. 5.1 definition of ‘‘Drugs’’ ...... New. 5.1 definition of ‘‘Effective the date of the last New. payment’’. 5.1 definition of ‘‘Evidence on file on the date 3.1000(d)(4). of death’’. 5.1 definition of ‘‘Final decision’’ ...... New. 5.1 definition of ‘‘Fraud’’ ...... 3.1(aa), 3.901(a). 5.1 definition of ‘‘Insanity’’ ...... 3.354(a). 5.1 definition of ‘‘Nonservice-connected’’ ...... 3.1(l). 5.1 definition of ‘‘Notice’’ ...... 3.1(q). 5.1 definition of ‘‘Nursing home’’ ...... 3.1(z). 5.1 definition of ‘‘Payee’’ ...... New. 5.1 definition of ‘‘Political subdivision of the 3.1(o). U.S.’’. 5.1 definition of ‘‘Proximately caused’’ ...... New. 5.1 definition of ‘‘Psychosis’’ ...... 3.384. 5.1 definition of ‘‘Reserve’’ or ‘‘reservist’’ ...... 3.1(c). 5.1 definition of ‘‘Reserve component’’ ...... 3.1(b). 5.1 definition of ‘‘Secretary concerned’’ ...... 3.1(g). 5.1 definition of ‘‘Service-connected’’ ...... 3.1(k). 5.1 definition of ‘‘Service treatment records’’ ... New. 5.1 definition of ‘‘State’’ ...... 3.1(i). 5.1 definition of ‘‘Uniformed services’’ ...... New. 5.1 definition of ‘‘VA’’ ...... 1.9(b)(1). 5.1 definition of ‘‘Veteran’’ ...... 3.1(d). 5.1 definition of Willful misconduct ...... 3.1(n). 5.2 ...... New ...... Terms and usage in part 5 regulations. 5.3(a) ...... New ...... Standards of proof. 5.3(b)(1) ...... New. 5.3(b)(2) ...... 3.102 (third sentences). 5.3(b)(3) ...... 3.102 (second and seventh sentences). 5.3(b)(4) ...... New. 5.3(b)(5) ...... 3.102 (sixth sentence). 5.3(b)(6) ...... New. 5.3(c), 5.3(d), 5.3(e) ...... New. 5.4(a) ...... 3.103(a) (second sentence) ...... Claims adjudication policies. 5.4(b) ...... 3.102 (first sentence), 3.103(a) (second sentence). 5.5 ...... 3.100 ...... Delegations of authority. 5.6–5.19 ...... Reserved.

Subpart B—Service Requirements for Veterans

Periods of War and Types of Military Service 5.20 ...... 3.1(e), 3.1(f), 3.2 ...... Dates of periods of war. 5.21(a) ...... 3.6(a), 3.7(a) ...... Service VA recognizes as active military service.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.21(b) ...... 3.15. 5.22(a) ...... 3.6(b)(1) ...... Service VA recognizes as active duty. 5.22(b) ...... 3.6(b)(7). 5.22(c) ...... New. 5.23(a) ...... 3.7(r) ...... How VA classifies Reserve and National Guard duty. 5.23(a)(1) ...... 3.6(b)(1). 5.23(a)(2) ...... 3.6(c)(1). 5.23(a)(3) ...... 3.6(d)(1), 3.6(d)(2). 5.23(b) ...... 3.7(m). 5.23(b)(1) ...... 3.6(b)(1). 5.23(b)(2) ...... 3.6(c)(3). 5.23(b)(3) ...... 3.6(d)(4). 5.23(b)(4) ...... 3.6(d)(4)(i), 3.6(d)(4)(ii). 5.23(c) ...... New. 5.24(a) ...... 3.6(b)(4), 3.6(b)(7), 3.7(f) ...... How VA classifies duty performed by Armed 5.24(b)(1) ...... 3.6(b)(5). Services Academy cadets and midshipmen, 5.24(b)(2) ...... 3.6(c)(5). attendees at the preparatory schools of the 5.24(c)(1) ...... 3.6(c)(4). Armed Services Academies, and Senior 5.24(c)(2) ...... 3.6(d)(3). Reserve Officers’ Training Corps members. 5.24(c)(3) ...... 3.700(a)(1)(ii). 5.24(d) ...... New. 5.25(a) ...... 3.7(q) ...... How VA classifies service in the Public Health 5.25(a)(1) ...... 3.6(b)(2). Service, in the Coast and Geodetic Survey 5.25(a)(2) ...... 3.6(c)(2). and its successor agencies, and of tem- 5.25(a)(3) ...... 3.6(d)(1), 3.6(d)(2). porary members of the Coast Guard Re- 5.25(b) ...... 3.6(b)(3). serve. 5.25(b)(1) ...... 3.7(g). 5.25(c) ...... 3.6(d)(4)(iii). 5.25(d) ...... New. 5.26 ...... 3.7(o) ...... Circumstances where a person ordered to 5.26(a)(3) ...... 3.7(m). service, but who did not serve, is considered to have performed active duty. 5.27(a), 5.27(b) ...... 3.7(x) ...... Individuals and groups designated by the 5.27(c) ...... 3.7(x), 3.400(z). Secretary of Defense as having performed active military service. 5.28 ...... 3.7(c)–(e), 3.7(h)–(l), 3.7(n), 3.7(p), 3.7(s)– Other groups designated as having performed (w), 3.7(y). active military service. 5.29(a)(1) ...... 3.6(b)(6) ...... Circumstances under which certain travel pe- 5.29(a)(2) ...... 3.6(b)(7). riods may be classified as military service. 5.29(a)(3) ...... New. 5.29(b) ...... 3.6(c)(6), 3.6(e). 5.30(a) ...... 3.12(a) (first sentence) ...... How VA determines if service qualifies for VA 5.30(b) ...... New. benefits. 5.30(c) ...... 3.12(a) (second sentence), 3.12(k)(1), 3.14(d). 5.30(d) ...... 3.12(b). 5.30(e) ...... 3.12(k)(2), 3.12(k)(3). 5.30(f) ...... 3.12(d). Bars to Benefits 5.31(a) ...... New ...... Statutory bars to VA benefits. 5.31(b) ...... New. 5.31(c) ...... 3.7(b), 3.12(c)(1)–(5) 5.31(d) ...... New. 5.31(e) ...... 3.12(j) 5.31(f) ...... 3.12(i) 5.32 ...... 3.12(c)(6) ...... Consideration of compelling circumstances when veteran was separated for AWOL. 5.33 ...... 3.12(b), 3.354(b) ...... Insanity as a defense to acts leading to a discharge or dismissal from the service that might be disqualifying for VA benefits. Military Discharges and Related Matters 5.34(a) ...... New ...... Effect of discharge upgrades by Armed 5.34(b) ...... New. Forces boards for the correction of military 5.34(c) ...... 3.12(e). records (10 U.S.C. 1552) on eligibility for 5.34(d) ...... 3.400(g). VA benefits. 5.35(a) ...... New ...... Effect of discharge upgrades by Armed 5.35(b) ...... 3.12(f). Forces discharge review boards (10 U.S.C. 5.35(c), 5.35(d) ...... 3.12(g). 1553) on eligibility for VA benefits. 5.35(e) ...... 3.400(g).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.36(a) ...... 3.12(h) ...... Effect of certain special discharge upgrade 5.36(b), 5.36(c) ...... 3.12(i). programs on eligibility for VA benefits. 5.37(a) (first sentence) ...... 3.12(a) ...... Effect of extension of service obligation due to 5.37(a) (second sentence) ...... New. change in military status on eligibility for VA 5.37(b) ...... 3.13(a). benefits. 5.37(c) ...... 3.13(b). 5.37(d) ...... 3.13(c). 5.38(a) ...... New ...... Effect of a voided enlistment on eligibility for 5.38(b) ...... 3.14(a), 3.14(c). VA benefits. 5.38(c) ...... 3.14(b). 5.39(a) ...... 3.12a(a)(2), 3.12a(b) ...... Minimum active duty service requirement for 5.39(b)(1) ...... 3.12a(c)(1). VA benefits. 5.39(b)(2) ...... 3.12a(c)(2). 5.39(c)(1) ...... 3.12a(a)(1). 5.39(c)(2) ...... 3.203(c) (last sentence). 5.39(d) ...... 3.12a(a)(2), 3.12a(d). 5.39(e) ...... 3.15. 5.39(f) ...... 3.12a(e). 5.40(a) ...... 3.203(a) ...... Service records as evidence of service and 5.40(b) ...... 3.203(a)(2). character of discharge that qualify for VA 5.40(c) ...... 3.203(a)(1), 3.203(a)(3). benefits. 5.40(d) ...... 3.203(c). 5.41–5.49 ...... Reserved.

Subpart C—Adjudicative Process, General

VA Benefit Claims 5.50 ...... 3.150 ...... Applications VA Furnishes. 5.51 ...... 3.151(a) ...... Filing a claim for disability benefits. 5.52 ...... 3.152 ...... Filing a claim for death benefits. 5.53 ...... 3.154 ...... Claims for benefits under 38 U.S.C. 1151 for disability or death due to VA treatment or vocational rehabilitation. 5.54 ...... 3.155 ...... Informal claims. 5.55 ...... 3.156(a), 3.400 introductory text, 3.400(h)(2), Claims based on New and material evidence. 3.400(q)(2), 3.400(r). 5.56 ...... 3.157 ...... Report of examination, treatment, or hospitalization as a claim. 5.57 ...... 3.160 ...... Claims definitions. 5.58–5.79 ...... Reserved. Rights of Claimants and Beneficiaries 5.80 ...... 3.103(e) ...... Right to representation. 5.81 ...... 3.103(d) ...... Submission of information, evidence, or argument. 5.82(a) introductory text ...... 3.103(c)(1) (first sentence) ...... Right to a hearing. 5.82(a)(1) ...... 3.103(c)(1). 5.82(a)(2) ...... New. 5.82(b) ...... 3.103(c)(2). 5.82(c) ...... 3.103(c)(1). 5.82(d)(1) ...... 3.103(c)(1). 5.82(d)(2) ...... 3.103(c)(2). 5.82(d)(3) ...... New. 5.82(e)(1) ...... 3.103(c)(2). 5.82(e)(2) ...... 3.103(c)(1). 5.82(e)(3) ...... New. 5.82((e)(4) ...... New. 5.82(f)(1) ...... 3.105(i)(2). 5.82(f)(2) ...... 3.105(i)(1). 5.82(f)(3) ...... 3.105(i)(1). 5.82(f)(4) ...... 3.105(i)(1). 5.82(f)(5) ...... 3.105(i)(2). 5.83(a) ...... 3.103(b)(1), 3.103(b)(2), 3.105(d)–(h) ...... Right to notice of decisions and proposed ad- 5.83(b) ...... 3.103(a), 3.103(b)(1), 3.103(f). verse actions. 5.83(c) ...... 3.103(b)(3). 5.84 ...... 3.103(b)(4) ...... Restoration of benefits following adverse action. 5.85–5.89 ...... Reserved. Duties of VA 5.90 (except (b)(3)) ...... 3.159 ...... VA assistance in developing claims. 5.90(b)(3) ...... 3.109(a)(1).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.91(a) ...... 3.326(b), 3.326(c) ...... Medical evidence for disability claims. 5.91(b) ...... 3.304(c) (last sentence). 5.92 ...... 3.328 ...... Independent medical opinions. 5.93 ...... New ...... Service records which are lost, destroyed, or otherwise unavailable. 5.94–5.98 ...... Reserved. Responsibilities of Claimants and Beneficiaries 5.99 ...... 3.109(b) ...... Extensions of time limits for providing information or evidence. 5.100 ...... 3.110 ...... Time limits for claimant or beneficiary responses. 5.101(a) ...... 3.216 ...... Requirement to provide Social Security num- 5.101(b) ...... 3.216. bers. 5.101(c) ...... 3.500(w). 5.101(d) ...... New. 5.101(e) ...... 3.159(b)(1), 3.216. 5.101(f) ...... 3.216. 5.102(a) ...... 3.327(a) (except third sentence) ...... Reexamination requirements. 5.102(b) ...... 3.327(a) (third sentence). 5.102(c)(1) ...... 3.327(b)(1) (second sentence). 5.102(c)(2)(i) ...... 3.327(b)(2). 5.102(c)(3) ...... 3.327(b)(1) (first sentence). 5.102(d) ...... 3.327(c). 5.103(a) (first sentence) ...... 3.326(a) (first and second sentences) Failure to report for VA examination or reex- 5.103(a) (second sentence) ...... 3.327(a) (first sentence). amination. 5.103(a) (third sentence) ...... New. 5.103(b) introductory text ...... 3.655(a) (first sentence). 5.103(b)(1) ...... 3.655(b). 5.103(b)(2) ...... 3.655(b). 5.103(c) ...... 3.655(c)(1) (first sentence). 5.103(d)(1) ...... 3.655(c)(1) (first and second sentences). 5.103(d)(2) ...... 3.655(c)(1) (last sentence), 3.655(c)(3). 5.103(d)(3) ...... 3.655(c)(2). 5.103(d)(4) ...... 3.655(c)(4). 5.103(d)(5) ...... 3.655(c)(3). 5.103(e) ...... 3.330. 5.103(f) (except last sentence) ...... 3.655(a) (second sentence). 5.103(f) (last sentence) ...... New. 5.104(a) ...... 3.652(a) Certifying continuing eligibility to receive ben- 5.104(b) 3.652(a)(1). efits. 5.104(c) ...... 3.652(a)(1), 3.652(a)(2). 5.104(d) ...... 3.652(b). 5.105–5.129 ...... Reserved. General Evidence Requirements 5.130(a) (except (a)(3)) ...... 3.217(a), 3.217(a) (note) ...... Submission of statements, evidence, or infor- 5.130(a)(3)...... 3.217(b) mation affecting entitlement to benefits. 5.130(b)...... 3.217(b) 5.130(c)...... New 5.131(a) ...... 3.153 ...... Applications, claims, and exchange of evi- 5.131(b) ...... 3.201(a). dence with Social Security Administration— 5.131(c) ...... 3.201(b). death benefits. 5.132(a) ...... 3.108 ...... Claims, statements, evidence, or information 5.132(b) ...... 3.202(a). filed or submitted abroad; authentication of 5.132(c) ...... 3.202(b). documents from foreign countries. 5.132(d) ...... 3.202(a). 5.132(e) ...... 3.202(c). 5.133(a) ...... 3.115(a) ...... Information VA may request from financial in- 5.133(b) ...... New. stitutions. 5.133(c) ...... 3.115(b). 5.134 ...... 3.2130 ...... VA acceptance of signature by mark or thumbprint. 5.135 ...... 3.200 ...... Statements certified or under oath or affirmation. 5.136 ...... 3.158(a) ...... Abandoned claims. 5.137–5.139 ...... Reserved. Evidence Requirements for Former Prisoners of War (POWs) 5.140 ...... 3.1(y) ...... Determining former prisoner of war status.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.141(a) ...... 3.304(c) ...... Medical evidence for former prisoner of war 5.141(b) ...... New. disability compensation claims. 5.141(c) ...... 3.304(e). 5.141(d) ...... 3.304(e) (first sentence). 5.141(e) ...... 3.304(e) (last two sentences). 5.141(f) ...... 3.326(b). 5.142–5.149 ...... Reserved. General Effective Dates for Awards 5.150(a) ...... 3.400 introductory text, 3.400(a), 3.400(h)(1), General effective dates for awards or in- 3.400(o)(1) (first sentence), 3.400(q)(2). creased benefits. 5.150(b) ...... 3.400(o)(1) (second sentence). 5.150(c) ...... New. 5.151 ...... 3.1(r) ...... Date of receipt. 5.152 ...... 3.114 ...... Effective dates based on change of law or VA issue. 5.153 ...... 3.156(b), 3.400(q)(1) ...... Effective date of awards based on receipt of evidence prior to end of appeal period or before a final decision. 5.154–5.159 ...... Reserved. General Rules on Revision of Decisions 5.160(a) ...... 3.104(a) ...... Binding effect of VA decisions. 5.160(b) ...... 3.104(b). 5.161 ...... 3.2600 ...... Review of benefit claims decisions. 5.162(a) ...... 3.105 (introduction first sentence) ...... Revision of agency of original jurisdiction de- 5.162(b) ...... New. cisions based on clear and unmistakable 5.162(c) ...... 3.105(a) (first two sentences). error. 5.162(e) ...... New. 5.162(f) ...... 3.105(a) (third and last sentences). 5.163 ...... 3.105(b) ...... Revision of decisions based on difference of opinion. 5.164 ...... New ...... Standard of proof for reducing or discontinuing a benefit payment or for severing service connection based on a beneficiary’s act of commission or omission. 5.165 ...... 3.156(c) ...... Keep phrase ‘‘reducing or discontinuing’’ in same order in each use. Check and correct tables of contents. 5.166 ...... 3.400(h)(1) ...... Effective dates for revision of decisions based on difference of opinion. 5.167(a) ...... 3.500(b) introductory text ...... Effective dates for reducing or discontinuing a 5.167(b) ...... 3.500(b)(1). benefit payment, or for severing service 5.167(c) ...... 3.500(b)(2). connection, based on commission or omission, or based on administrative error. 5.168 ...... Reserved. 5.169 ...... Reserved. General Rules on Protection or Reduction of Existing Ratings 5.170(a) ...... New ...... Calculation of 5-year, 10-year, and 20-year 5.170(b) ...... 3.951(b), 3.957. protection periods. 5.170(c) ...... New. 5.170(d) ...... New. 5.170(e) ...... New. 5.171(a) ...... 3.344(a) ...... Protection of 5-year stabilized ratings. 5.171(b) ...... 3.344(c). 5.171(c)(1) ...... 3.344(c). 5.171(c)(2) ...... 3.344(a). 5.171(d) introductory text ...... New. 5.171(d) ...... 3.344(a). 5.171(e) ...... 3.344(b). 5.172(a) ...... 3.951(b) (first sentence) ...... Protection of continuous 20-year ratings. 5.172(b) ...... 3.951(b) (second sentence). 5.172(c) ...... New. 5.173 ...... 3.951(a) ...... Protection against reduction of disability rating when VA revises the Schedule for Rating Disabilities. 5.174(a) ...... 3.953(a) ...... Protection of entitlement to benefits estab- 5.174(b) ...... 3.953(c). lished before 1959. 5.175(a)(1) ...... 3.957 (first sentence) ...... Severance of service connection. 5.175(a)(2) ...... 3.957 (last sentence). 5.175(b)(1) ...... 3.105(d) (first and second sentences).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.175(b)(2) ...... 3.105(d) (third and fourth sentences). 5.176 ...... Reserved. 5.177(a) ...... 3.105 (introduction—last sentence)...... Effective dates for reducing or discontinuing 5.177(b) ...... 3.105 (introduction—second sentence). benefit payments or for severing service 5.177(c) ...... 3.105 (Introduction first sentence), 3.105(d) connection. (fifth through last sentences), 3.500(r). 5.177(d) ...... 3.105(c), 3.55(r). 5.177(e) ...... 3.105(e), 3.500(r), 3.501(g)(2). 5.177(f) ...... 3.105(f), 3.501(e)(1), 3.501(g)(1). 5.177(g) ...... 3.105(g), 3.500(r). 5.177(h) ...... 3.105(h) (last sentence). 5.177(i) ...... 3.105 (introduction first sentence), 3.500(b). 5.178 ...... Reserved. 5.179 ...... Reserved.

Subpart D—Dependents and Survivors

General Dependency Provisions 5.180 ...... Reserved. 5.181(a) ...... 3.213(a) (first sentence) ...... Evidence needed to establish dependents. 5.181(b) ...... 3.204(a)(1), 3.213(a), 3.213(c). 5.181(c) ...... 3.204(a)(2), 3.204(b), 3.213(c). 5.181(d) ...... 3.204(c). 5.182(a) ...... 3.213(a), 3.277(b), 3.660(a)(1) ...... Changes in status of dependents. 5.182(b) ...... 3.213(c). 5.183(a)(1) ...... 3.401(b)(1)(ii), 3.660(c) (second sentence) ..... Effective date of awards of benefits for a de- 5.183(a)(2) ...... 3.401(b)(2). pendent. 5.183(a)(3) ...... New. 5.183(b)(1) ...... 3.401(b)(1)(i), 3.660(c) (first sentence). 5.183(b)(2) ...... 3.401(b)(1)(i), 3.660(c) (first sentence). 5.183(b)(3) ...... 3.401(b)(1)(i), 3.403(a)(5), 3.660(c) (first sentence). 5.183(b)(4) ...... 3.401(b)(3). 5.183(b)(5) ...... 3.401(b)(4). 5.184(a) ...... 3.500(g)(2)(ii), 3.501(d)(2), 3.660(a)(2) (last Effective date of reduction or discontinuance 5.184(b) ...... sentence). based on changes in dependency status. 5.184(c) ...... New. 5.184(d) ...... New. 3.213(b) (first sentence). 5.185–5.190 ...... Reserved. Marriage, Divorce, and Annulment 5.191 ...... 3.1(j) ...... Marriages VA recognizes as valid. 5.192(a) ...... New ...... Evidence of marriage. 5.192(b) ...... 3.205(b). 5.192(c) (except (c)(6)(i)) ...... 3.205(a). 5.192(c)(6)(i) ...... New. 5.193 ...... 3.205(b) (last sentence) ...... Proof of marriage termination where evidence is in conflict or termination is contested. 5.194(a) ...... 3.206 (first sentence) ...... Acceptance of divorce decrees. 5.194(b)(1), 5.194(b)(2) ...... 3.206(a) introductory text. 5.194(b)(3) ...... New. 5.194(c)(1) ...... 3.206(b). 5.194(c)(2) ...... 3.206(c). 5.195 ...... Reserved. 5.196(a)(1) ...... New ...... Void or annulled marriages. 5.196(a)(2) ...... 3.207(a). 5.196(b) ...... 3.207(b). 5.197 (introduction) ...... 3.502(d), 3.503(a)(4) ...... Effective date of reduction or discontinuance 5.197(a) ...... 3.500(n)(1). of Improved Pension, disability compensa- 5.197(b) ...... 3.500(n)(2)(ii). tion, or dependency and indemnity compensation due to marriage or remarriage. 5.198 ...... Reserved. 5.199 ...... Reserved. Surviving Spouse Status 5.200(a) ...... 3.52 introductory text ...... Surviving spouse: requirement of valid mar- 5.200(b)(1) ...... 3.52(a). riage to veteran. 5.200(b)(2) ...... 3.52(b), 3.205(c). 5.200(b)(3) ...... 3.52(c). 5.200(b)(4) ...... 3.52(d). 5.201(a) ...... 3.50(b) (except (b)(2)) ...... Surviving spouse: requirements for relation- 5.201(b) (introduction) ...... 3.53(a) (first sentence). ship with the veteran.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.201(b)(1) ...... 3.54(e). 5.201(b)(2)(i) ...... 3.53(a) (first sentence). 5.201(b)(2)(ii) ...... New. 5.201(b)(3) ...... 3.53(b) (second sentence). 5.201(b)(4) ...... 3.53(a) (second sentence). 5.201(b)(5) ...... 3.53(b) (first sentence). 5.201(b)(6) ...... 3.53(b) (last sentence). 5.202 ...... Reserved. 5.203(a)(1) ...... 3.50(b)(2), 3.214 ...... Effect of remarriage on a surviving spouse’s 5.203(a)(2) ...... 3.50(b)(2). benefits. 5.203(b)(1) ...... 3.50(b). 5.203(b)(2) ...... 3.500(n)(3). 5.203(b)(3) ...... 3.400(w). 5.203(c) ...... 3.55(a)(1). 5.203(d)(1)–(3) ...... 3.55(a)(2). 5.203(d)(4) ...... 3.55(a)(5), 3.55(a)(8), 3.215. 5.203(e)(1), except (e)(1)(iii) ...... 3.55(a)(3). 5.203(e)(1)(iii) ...... 3.55(a)(6). 5.203(e)(2) ...... 3.55(a)(3). 5.203(f) ...... 3.55(a)(10)(i). 5.204 ...... Reserved. 5.205 ...... 3.400(v) ...... Effective date of resumption of benefits to a surviving spouse due to termination of a remarriage. 5.206–5.219 ...... Reserved. Child Status 5.220, except 5.220(b)(1) and 5.220(d) ...... 3.57(a) ...... Status as a child for VA benefit purposes. 5.220(b)(1) ...... 3.57(a)(1)(ii), 3.315(a), 3.356(b) (first sentence). 5.220(d) ...... 3.503(a)(2). 5.221 ...... 3.210(a), 3.210(b) ...... Evidence to establish a parent/natural child relationship. 5.222(a), 5.222(c), 5.222(d) ...... 3.57(c) introductory text, 3.210(c) introductory Evidence to establish an adopted child rela- 5.222(b) ...... text. tionship. 3.210(c)(1) introductory text, 3.210(c)(1)(i). 5.223(a) ...... 3.210(c)(2) ...... Child adopted after a veteran’s death. 5.223(b) (except (b)(1)) ...... 3.210(c)(2). 5.223(b)(1) ...... 3.57(c)(1)–(3). 5.224(a) ...... 3.58 ...... Child status despite adoption out of the vet- 5.224(b) ...... 3.210(c)(1) introductory text, 3.210(c)(1)(ii). eran’s family. 5.225(a) ...... 3.57(e)(1) ...... Child status based on adoption into a vet- 5.225(b)(1) ...... 3.57(e)(2). eran’s family under foreign law. 5.225(b)(2) ...... 3.57(e)(4). 5.225(c) ...... New. 5.225(d) ...... 3.57(e)(3). 5.226(a) ...... 3.57(b), 3.210(d) ...... Child status based on being a veteran’s step- 5.226(b) ...... 3.57(b), 3.210(d). child. 5.226(c), 5.226(d) ...... New. 5.227(a) ...... 3.356(a) ...... Child status based on permanent incapacity 5.227(b)(1)(i) ...... 3.356(b)(1) for self-support. 5.227(b)(1)(ii) ...... 3.356(b)(2) (last sentence). 5.227(b)(1)(iii) ...... 3.356(b)(4). 5.227(b)(1)(iv) ...... 3.356(b)(3) (last sentence). 5.227(b)(2)(i) ...... 3.356(b)(3). 5.227(b)(2)(ii) ...... 3.356(b) introductory text, 3.356(b) (third sentence). 5.227(c)(1) ...... 3.356(b)(3). 5.227(c)(2)(i) ...... 3.356(b) introductory text, 3.356(b) (second sentence). 5.227(c)(2)(ii)–(iv) ...... New. 5.227(d), except for (d)(3) ...... New. 5.227(d)(3) ...... 3.356(b)(2) (first sentence). 5.228(a) ...... New ...... Exceptions applicable to termination of child 5.228(b) ...... 3.55(b). status based on marriage of the child. 5.229 (introduction) ...... 3.204(b) ...... Proof of age or birth. 5.229(a) ...... 3.209(a). 5.229(b) ...... 3.209(b), 3.209(g). 5.229(c) ...... 3.209(c). 5.229(d) ...... 3.209(d). 5.229(e) ...... 3.209(e). 5.229(f) ...... 3.209(f).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.229(g) ...... 3.209(g). Effective Dates of Changes in Child Status 5.230 ...... 3.403(a)(3) ...... Effective date of award of pension or dependency and indemnity compensation to or for a child born after the veteran’s death. 5.231 ...... 3.503(a) introductory text, 3.503(a)(1) ...... Effective date of reduction or discontinuance: child reaches age 18 or 23. 5.232 ...... 3.503(a)(10) ...... Effective date of reduction or discontinuance: terminated adoptions. 5.233 ...... 3.503(a)(6) ...... Effective date of reduction or discontinuance: stepchild no longer a member of the veteran’s household. 5.234(a) ...... New ...... Effective date of an award, reduction, or dis- 5.234(b) ...... 3.403(a)(1). continuance of benefits based on child sta- 5.234(c)(1) ...... 3.503(a)(3)(i). tus due to permanent incapacity for self- 5.234(c)(2) ...... 3.503(a)(3)(ii). support. 5.235(a) ...... New ...... Effective date of an award of benefits due to 5.235(b) ...... 3.400(u). termination of a child’s marriage. 5.236 ...... Reserved. 5.237 ...... Reserved. Parent Status 5.238(a) ...... 3.59(a), 3.59(b) (first sentence) ...... Status as a veteran’s parent. 5.238(b) ...... New. 5.238(c) ...... New. 5.238(d)(1), 5.238(d)(2)(i) ...... 3.59(b) (second and third sentences). 5.238(d)(2)(ii), 5.238(e) ...... New. 5.239 ...... Reserved.

Subpart E—Claims for Service Connection and Disability Compensation

Service-Connected and Other Disability Compensation 5.240(a) ...... 3.4(a), 3.4(b)(1) ...... Disability compensation. 5.240(b) ...... 3.4(b)(2). 5.241 (introduction) ...... New ...... Service-connected disability. 5.241(a), 5.241(b) ...... 3.1(k), 3.303(a) (first and second sentences). 5.241(c) ...... New. 5.242(a) ...... 3.303(a) (third sentence) ...... General principles of service connection. 5.242(b) ...... 3.304(b)(3). 5.243(a) ...... New ...... Establishing service connection. 5.243(b) ...... 3.303(d). 5.243(c) ...... 3.303(b) (first through third sentences). 5.243(d) ...... 3.303(b) (fifth sentence). 5.244(a) ...... 3.304(b) (introduction first sentence) ...... Condition on entry into military service. 5.244(b)(1) ...... 3.304(b)(1) (first sentence). 5.244(b)(2) ...... New. 5.244(c)(1) ...... 3.304(b) (introduction first sentence). 5.244(c)(2) ...... New. 5.244(d) ...... 3.303(c) (first through fifth sentences). 5.245 ...... 3.306(a) ...... Service connection based on aggravation of 5.245(b)(1) ...... New. preservice injury or disease. 5.245(b)(2) ...... New. 5.245(b)(3) ...... 3.306(b)(1). 5.245(b)(4) ...... 3.306(b)(2). 5.245(c) ...... 3.306(b), 3.306(c). 5.246 ...... 3.310(a) ...... Secondary service connection—disability that is proximately caused by service-connected disability. 5.247 ...... 3.310(b) ...... Secondary service connection—nonservice- connected disabilities aggravated by service-connected disability. 5.248 ...... 3.310(c) ...... Service connection for cardiovascular disease secondary to service-connected lower extremity amputation. 5.249(a)(1) ...... 3.304(d) ...... Special service connection rules for combat- 5.249(a)(2) ...... New. related injury or disease. 5.249(b) ...... New. 5.250(a) ...... 3.304(f) introductory text ...... Service connection for posttraumatic stress 5.250(b) ...... New. disorder. 5.250(c) ...... 3.304(f)(1).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.250(d) ...... 3.304(f)(2), 3.304(f)(4). 5.250(e) ...... 3.304(f)(3). 5.250(f) ...... 3.304(f)(5). 5.251(a) ...... 3.303(c) (last sentence) ...... Current disabilities for which VA cannot grant 5.251(b), 5.251(c), 5.251(d) ...... New. service connection. 5.251(e) ...... 3.380. 5.252–5.259 ...... Reserved. Presumptions Concerning Service Connection for Certain Diseases, Disabilities, and Re- lated Matters 5.260(a) ...... New ...... General rules governing presumptions of 5.260(b) ...... 3.307(b), 3.307(c) (first sentence). service connection. 5.260(c)(1) ...... 3.307(d)(1). 5.260(c)(2) ...... New. 5.261(a) (introduction) ...... 3.307(a)(3) ...... Certain chronic diseases VA presumes are 5.261(a)(1) ...... 3.307(a)(3). service connected. 5.261(a)(2) ...... New. 5.261(b) ...... 3.307(a)(1) (first and second sentences). 5.261(c) (introduction) ...... 3.307(a)(3), 3.307(b). 5.261(c) (table) ...... 3.307(a)(3), 3.307(b), 3.309(a). 5.261(d) ...... 3.309(a). 5.261(e) ...... New. 5.262(a)(1) ...... 3.307(a)(6)(iii), 3.307(a)(6)(iv) ...... Presumption of service connection for dis- 5.262(a)(2) ...... 3.307(a)(6)(ii). eases associated with exposure to certain 5.262(b) ...... 3.307(a)(6)(i). herbicide agents. 5.262(c) ...... 3.307(a)(1) (last sentence). 5.262(d) ...... 3.307(a)(6)(iii), 3.307(a)(6)(iv). 5.262(e) ...... 3.307(a)(6)(ii), 3.309(e). 5.262(e) Note 1 ...... 3.309(e) Note 2. 5.262(e) Note 2 ...... 3.309(e) Note 1. 5.262(e) Note 3 ...... 3.309(e) Note 3. 5.263 ...... 3.313 ...... Presumption of service connection for non- Hodgkin’s lymphoma based on service in Vietnam. 5.264(a) (introduction) ...... 3.307(a)(1) (last sentence), 3.307(a)(5) ...... Diseases VA presumes are service connected 5.264(a)(1) ...... 3.309(c)(1), 3.309(c)(2)(i). in a former prisoner of war. 5.264(a)(2) ...... 3.307(a)(5), 3.309(c)(1), 3.309(c)(2)(ii). 5.264(b) ...... 3.309(c)(1). 5.264(c) ...... 3.309(c)(2). 5.265(a) ...... 3.307(a)(4) ...... Tropical diseases VA presumes are service 5.265(b) ...... 3.307(a)(1) (first and second sentences). connected. 5.265(c) ...... 3.307(a)(2). 5.265(d) ...... 3.309(b). 5.265(e) ...... 3.307(d)(1) (third and last sentences). 5.265(f) ...... 3.308(b). 5.266 ...... 3.317 ...... Disability compensation for certain qualifying chronic disabilities. 5.267 ...... 3.316(a) ...... Presumption of service connection for conditions associated with full-body exposure to nitrogen mustard, sulfur mustard, or Lew- isite. 5.268(a) ...... 3.309(d)(3)(i) ...... Presumption of service connection for dis- 5.268(b) ...... 3.309(d)(1), 3.309(d)(2). eases associated with exposure to ionizing 5.268(c) (introduction) ...... 3.309(d)(3)(ii). radiation. 5.268(c)(1) (introduction) ...... 3.309(d)(3)(ii)(A), 3.309(d)(3)(iv) introductory text. 5.268(c)(1)(i)–(iv) ...... 3.309(d)(3)(iv)(A)–(D). 5.268(c)(2) ...... 3.309(d)(3)(ii)(B), 3.309(d)(3)(vi). 5.268(c)(3) (introduction) ...... 3.309(d)(3)(ii)(C), 3.309(d)(3)(vii) introductory text. 5.268(c)(3)(i)–(iv) ...... 3.309(d)(3)(vii)(A)–(D). 5.268(c)(4) (introduction) ...... 3.309(d)(3)(ii)(D)(1). 5.268(c)(4)(i) ...... 3.309(d)(3)(ii)(D)(1)(i). 5.268(c)(4)(ii) ...... 3.309(d)(3)(ii)(D)(1)(ii). 5.268(c)(4) (Note) ...... 3.309(d)(3)(ii)(D)(3). 5.268(c)(5) ...... 3.309(d)(3)(ii)(D)(2). 5.268(c)(6) ...... 3.309(d)(3)(ii)(E). 5.268(d) ...... 3.309(d)(3)(iii). 5.268(e) ...... 3.309(d)(3)(v). 5.268 Note ...... New.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.269(a) (introduction first sentence) ...... 3.311(a)(1), 3.311(b)(1) ...... Direct service connection for diseases associ- 5.269(a) (introduction second and last sen- 3.311(b)(1)(iii). ated with exposure to ionizing radiation. tence) 3.311(b)(1)(i). 5.269(a)(1) ...... 5.269(a)(2) ...... 3.311(b)(1)(ii). 5.269(a)(3) ...... 3.311(b)(1)(iii). 5.269(b) (introduction) ...... 3.311(b)(2) introductory text. 5.269(b)(1) ...... 3.311(b)(2)(i)–(xxiv), 3.311(b)(5). 5.269(b)(2) ...... 3.311(b)(3). 5.269(b)(3) ...... 3.311(b)(4). 5.269(c)(1) (introduction first sentence) ...... 3.311(a)(1) (except last sentence). 5.269(c)(1) (introduction last sentence) ...... 3.311(a)(2) introductory text. 5.269(c)(1)(i)–(iii) ...... 3.311(a)(2)(i)–(iii). 5.269(c)(2) ...... 3.311(a)(1) (last sentence). 5.269(c)(3) ...... 3.311(a)(4)(ii). 5.269(c)(4) ...... 3.311(a)(4)(i). 5.269(d)(1) ...... 3.311(a)(1) (except last sentence). 5.269(d)(2) ...... New. 5.269(e)(1) (introduction first sentence) ...... 3.311(c) introductory text. 5.269(e)(2) ...... 3.311(a)(3). 5.269(f)(1) ...... 3.311(c)(1) introductory text, 3.311(c)(1)(i), 3.311(e). 5.269(f)(2) ...... 3.311(c)(3). 5.269(f)(3) ...... 3.311(c)(1)(ii). 5.269(f)(4) ...... 3.311(c)(2), 3.311(d)(1), 3.311(d)(2). 5.269(f)(5) ...... 3.311(d)(3) (first sentence). 5.269(f)(6) ...... 3.311(d)(3) (second sentence). 5.269(g) ...... 3.311(f). 5.269(h) ...... 3.311(g). 5.270 ...... 3.318 ...... Presumption of service connection for amyotrophic lateral sclerosis. 5.271 ...... 3.317(c), 3.317(d), 3.317 Table, 3.317(e)(2) ... Presumption of service connection for infectious diseases 5.272–5.279 ...... Reserved. Rating Service-Connected Disabilities 5.280(a) ...... 3.321(a), 3.321(b)(1), 3.321(b)(3), 3.321(c) .... General rating principles. 5.280(b)(1) ...... 3.321(b)(1). 5.280(b)(2) ...... 3.321(b)(3). 5.280(c) ...... 3.321(c). 5.281 ...... 3.324 ...... Multiple 0 percent service-connected disabilities. 5.282(a) ...... 3.383(a) ...... Special consideration for paired organs and 5.282(b) ...... 3.383(a)(1)–(5). extremities. 5.282(c)(1) ...... 3.383(b)(1). 5.282(c)(2) ...... 3.383(b)(1). 5.282(c)(3) ...... 3.383(c). 5.282(c)(4) ...... 3.383(d). 5.283 ...... 3.340 ...... Total and permanent total ratings and unemployability. 5.284 ...... 3.341 ...... Total disability ratings for disability compensation purposes. 5.285(a) ...... 3.343(a) ...... Discontinuance of total disability ratings. 5.285(b) ...... 3.343(c). 5.286–5.299 ...... Reserved. Additional Disability Compensation Based on a Dependent Parent 5.300(a)(1) ...... 3.250(a)(1) ...... Establishing dependency of a parent. 5.300(a)(2) ...... New. 5.300(b) (introduction) ...... 3.250(a)(2) (first sentence). 5.300(b)(1) ...... 3.250(b) introductory text. 5.300(b)(1)(i) ...... 3.250(b)(1). 5.300(b)(1)(ii) ...... 3.250(c). 5.300(b)(2)(i) ...... 3.250(a)(2) (last sentence). 5.300(b)(2)(ii) ...... 3.250(b)(2). 5.300(c) ...... 3.250(b)(2). 5.300(d) ...... 3.660(a)(1). 5.300(e) ...... 3.250(d). 5.301 ...... Reserved. 5.302(a) ...... 3.262(a) introductory text ...... General income rules—parent’s dependency. 5.302(b) ...... 3.262(b)(1). 5.302(c) ...... 3.261(a)(3).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.302(d) ...... 3.262(k)(2). 5.302(e) ...... 3.262(k)(3). 5.303(a) ...... 3.262(a)(2) ...... Deductions from income—parent’s depend- 5.303(b) ...... 3.261(a)(24), 3.262(i)(1), 3.262(j)(4). ency. 5.303(c) ...... 3.262(a)(1). 5.304 (introduction) ...... 3.261 introductory text, 3.262(t) introductory Exclusions from income—parent’s depend- 5.304(a) ...... text. ency. 3.261(a)(7). 5.304(b) ...... 3.262(h). 5.304(c) ...... 3.261(a)(12). 5.304(d), except (d)(6) ...... 3.261(a)(20). 5.304(d)(6) ...... New. 5.304(e) ...... 3.261(a)(20). 5.304(f) ...... 3.261(a)(13). 5.304(g) ...... 3.261(a)(28), 3.262(t)(2). 5.304(h) ...... 3.261(a)(30), 3.262(k)(4). 5.304(i) ...... 3.261(a)(31). 5.304(j) ...... 3.262(a)(2) (last sentence). 5.304(k) ...... 3.261(a)(22). 5.304(l) ...... New. 5.304(m) ...... New. 5.305–5.310 ...... Reserved. Disability Compensation Effective Dates 5.311 ...... 3.400(b)(2) ...... Effective dates—award of disability compensation. 5.312(a) ...... New ...... Effective dates—increased disability com- 5.312(b) ...... 3.400(o)(2). pensation. 5.313(a) ...... New ...... Effective dates—discontinuance of compensa- 5.313(b) ...... 3.501(e)(2). tion for a total disability rating based on in- 5.313(c) ...... 3.501(f). dividual unemployability. 5.314(a) ...... New ...... Effective dates–discontinuance of additional 5.314(b) ...... 3.660(a)(2). disability compensation based on parental 5.314(c) ...... 3.500(n)(2)(ii), 3.660(a)(2) (last sentence). dependency. 5.314(d) ...... 3.500(g)(2)(ii), 3.660(a)(2) (last sentence). 5.315 ...... 3.660(d) ...... Effective dates—additional disability compensation based on decrease in the net worth of a dependent parent. 5.316–5.319 ...... Reserved. Special Monthly Compensation: General 5.320 (introduction) ...... 3.352(a) (fifth sentence). 5.320(a) ...... 3.352(a) (first and fifth through seventh sen- Determining need for regular aid and attend- tences), 3.352(c). ance. 5.320(b) ...... 3.352(a) (second through fourth sentences). 5.321(a) ...... 3.351(a)(2) ...... Additional disability compensation for a vet- 5.321(b) ...... 3.351(c)(1), 3.351(c)(2). eran whose spouse needs regular aid and 5.321(c) ...... 3.351(c)(3). attendance. 5.322(a) ...... New ...... Special monthly compensation: general infor- 5.322(b) ...... 3.350(a)(2)(i). mation and definitions of disabilities. 5.322(c) ...... 3.350(a)(2)(i), 3.350(a)(2)(i)(b). 5.322(d) ...... 3.350(c)(2). 5.322(e) (introduction) ...... New. 5.322(e)(1) ...... 3.350(d) (introduction except first sentence). 5.322(e)(2) ...... 3.350(d) (introduction except first sentence). 5.322(f) ...... 3.350(b)(2) (second sentence). 5.322(g) ...... 3.350(a)(4). Special Monthly Compensation: Specific Statutory Bases 5.323(a) ...... 3.350(a) (first sentence) ...... Special monthly compensation under 38 5.323(b)(1) ...... 3.350(a) (second sentence). U.S.C. 1114(k). 5.323(b)(2)(i) ...... 3.350(a) (third sentence). 5.323(b)(2)(ii) ...... New. 5.323(b)(3) ...... 3.350(a) (fourth sentence). 5.323(c)(1) ...... New. 5.323(c)(2) ...... 3.350(a)(1)(i) (introduction first sentence). 5.323(c)(3) (introduction) ...... 3.350(a)(1)(i) (introduction second sentence). 5.323(c)(3)(i)–(iii) ...... 3.350(a)(1)(i)(a)–(c). 5.323(c)(3)(iv) ...... New. 5.323(c)(4), 5.323(c)(5) ...... New. 5.323(c)(6) ...... 3.350(a)(1)(iii). 5.323(c)(7) ...... 3.350(a)(1)(iv).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.323(d)(1) ...... 3.350(a)(3)(i). 5.323(d)(2) ...... 3.350(a)(3)(ii). 5.323(e) ...... 3.350(a)(5). 5.323(f) ...... 3.350(a)(6). 5.324 (introduction) ...... 3.350(b) introductory text ...... Special monthly compensation under 38 5.324(a) ...... 3.350(b) introductory text. U.S.C. 1114(l) 5.324(b) ...... 3.350 introductory text. 5.324(c) ...... 3.350(b) introductory text, 3.350(b)(2) (except second sentence). 5.324(d) ...... 3.350(b) introductory text. 5.324(e) ...... 3.350(b) introductory text, 3.350(b)(3), 3.350(b)(4) (second sentence). 5.325 (introduction) ...... 3.350(f) introductory text ...... Special monthly compensation at the inter- 5.325(a) ...... 3.350(f)(1)(i). mediate rate between 38 U.S.C. 1114(l) 5.325(b) ...... 3.350(f)(1)(iii). and (m). 5.325(c) ...... 3.350(f)(1)(vi). 5.325(d) ...... 3.350(f)(2)(i). 5.326 (introduction) ...... 3.350(c)(1) introductory text ...... Special monthly compensation under 38 5.326(a) ...... 3.350(c)(1)(i). U.S.C. 1114(m). 5.326(b) ...... 3.350(c)(1)(ii). 5.326(c) ...... 3.350(f)(1)(ii). 5.326(d) ...... 3.350(f)(1)(iv). 5.326(e) ...... 3.350(c)(1)(iii). 5.326(f) ...... 3.350(f)(1)(viii). 5.326(g) ...... 3.350(c)(1)(iv). 5.326(h) ...... 3.350(f)(2)(ii). 5.326(i) ...... 3.350(c)(1)(v), 3.350(c)(3). 5.327 (introduction) ...... 3.350(f) introductory text ...... Special monthly compensation at the inter- 5.327(a) ...... 3.350(f)(1)(x). mediate rate between 38 U.S.C. 1114(m) 5.327(b) ...... 3.350(f)(1)(v). and (n). 5.327(c) ...... 3.350(f)(1)(vii). 5.327(d) ...... 3.350(f)(1)(ix). 5.327(e) ...... 3.350(f)(2)(iii). 5.328 ...... 3.350(d) (introductory text first sentence) ...... Special monthly compensation under 38 5.328(a) ...... 3.350(d)(1). U.S.C. 1114(n). 5.328(b) ...... 3.350(f)(1)(xi). 5.328(c) ...... 3.350(d)(2). 5.328(d) ...... 3.350(d)(3). 5.328(e) ...... 3.350(d)(4). 5.329 ...... 3.350(f) introductory text, 3.350(f)(1)(xii) ...... Special monthly compensation under 38 U.S.C. 1114(n) and (o). 5.330 (introduction) ...... 3.350(e)(1) introductory text ...... Special monthly compensation under 38 5.330(a) ...... 3.350(e)(1)(i). U.S.C. 1114(o) 5.330(b) ...... 3.350(e)(1)(iii). 5.330(c) ...... 3.350(e)(1)(iv). 5.330(d) ...... 3.350(e)(2). 5.330(e) ...... 3.350(e)(1)(ii), 3.350(e)(3). 5.331(a) ...... 3.350(f) introductory text ...... Special monthly compensation under 38 5.331(b)(1) ...... 3.350(f)(2)(iv) ...... U.S.C. 1114(p). 5.331(b)(2) ...... 3.350(f)(2)(v). 5.331(b)(3) ...... 3.350(f)(2)(vi). 5.331(c) ...... 3.350(f)(2)(vii). 5.331(d)(1) ...... 3.350(f)(3). 5.331(d)(2) ...... 3.350(f)(4)(i). 5.331(d)(3) ...... 3.350(f)(3). 5.331(e)(1) ...... 3.350(f)(4) introductory text. 5.331(e)(2) ...... 3.350(f)(4)(i). 5.331(e)(3) ...... 3.350(f)(4)(ii). 5.331(f) ...... 3.350(f)(5). 5.332(a) ...... 3.350(h)(1), 3.350(h)(2) ...... Additional allowance for regular aid and at- 5.332(b) ...... 3.350(h)(1) (first sentence), 3.350(h)(2) (first tendance under 38 U.S.C. 1114(r)(1) or for sentence), 3.350(h)(3) (first sentence), a higher level of care under 38 U.S.C. 3.352(b)(1)(ii). 1114(r)(2). 5.332(c)(1) ...... 3.350(h)(1) (first sentence), 3.350(h)(2) (first sentence), 3.350(h)(3) (second and last sentences), 3.352(b)(1)(ii). 5.332(c)(1)(i) ...... 3.350(h)(1) (first sentence), 3.350(h)(2) (first sentence) 3.352(b)(1)(i). 5.332(c)(1)(ii) ...... 3.352(b)(1)(ii). 5.332(c)(1)(iii), 5.332(c)(1)(iv) ...... 3.352(b)(1)(iii). 5.332(c)(1)(v) ...... 3.350(h)(1) (first sentence), 3.350(h)(2) (first sentence).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.332(c)(2) ...... 3.352(b)(2) (first sentence). 5.332(c)(3) ...... 3.352(b)(2) (second sentence). 5.332(c)(4) ...... 3.352(b)(2) (third sentence). 5.332(c)(5) ...... 3.352(b)(3). 5.332(c)(6) ...... 3.352(b)(4). 5.332(c)(7) ...... New. 5.333 (introduction) ...... 3.350(i) (introduction) ...... Special monthly compensation under 38 5.333(a) ...... 3.350(i)(1). U.S.C. 1114(s). 5.333(b) ...... 3.350(i)(2). 5.334 ...... New ...... Special monthly compensation tables. Special Monthly Compensation: Effective Dates 5.335 ...... 3.401(a)(1) ...... Effective dates: special monthly compensation under §§ 5.332 and 5.333. 5.336(a) ...... 3.401(a)(3) ...... Effective dates: additional compensation for 5.336(b) ...... 3.501(b)(3). regular aid and attendance payable for a veteran’s spouse under § 5.321. 5.337–5.339 ...... Reserved. Tuberculosis 5.340 ...... 3.370 ...... Pulmonary tuberculosis shown by X-ray in active military service. 5.341 ...... 3.371 ...... Presumption of service connection for disease; wartime and service after December 31, 1946. 5.342 ...... 3.372 ...... Initial grant following inactivity of tuberculosis. 5.343 ...... 3.374 ...... Effect of diagnosis of active tuberculosis. 5.344 ...... 3.375 ...... Determination of inactivity (complete arrest) of tuberculosis. 5.345 ...... 3.378 ...... Changes from activity in pulmonary tuberculosis pension cases. 5.346(a) ...... 3.959 ...... Tuberculosis and compensation under 38 5.346(b)(1)(i) ...... 3.350(g)(1). U.S.C. 1114(q) and 1156. 5.346(b)(1)(ii) ...... 3.401(g). 5.346(b)(2) ...... 3.350(g)(2). 5.347 ...... 3.343(b) ...... Continuance of a total disability rating for service-connected tuberculosis. 5.348 ...... Reserved. 5.349 ...... Reserved. Injury or Death Due to Hospitalization or Treatment 5.350 ...... 3.361 ...... Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program. 5.351 ...... 3.400(i) ...... Effective dates of awards of benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program. 5.352 ...... 3.362 ...... Effect of Federal Tort Claims Act compromises, settlements, and judgments entered after November 30, 1962, on benefits awarded under 38 U.S.C. 1151(a) for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program. 5.353 ...... 3.363 ...... Effect of Federal Tort Claims Act administrative awards, compromises, settlements, and judgments finalized before December 1, 1962, on benefits awarded under 38 U.S.C. 1151(a). 5.354–5.359 ...... Reserved. Ratings for Health-care Eligibility Only 5.360(a)(1) ...... New ...... Service connection of dental conditions for 5.360(a)(2) ...... 3.381(a). treatment purposes. 5.360(b) (introduction) ...... 3.381(b) (first sentence). 5.360(b)(1) ...... 3.381(d) (first sentence).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.360(b)(2) ...... 3.381(c). 5.360(c)(1) ...... 3.381(b) (first sentence). 5.360(c)(2) ...... New. 5.360(c)(3) ...... 3.381(b) (last sentence). 5.360(d) (introduction) ...... 3.381(d) (last sentence). 5.360(d)(1) ...... 3.381(e)(1). 5.360(d)(2) ...... 3.381(e)(2). 5.360(d)(3) ...... 3.381(e)(3). 5.360(d)(4) ...... 3.381(e)(4). 5.360(d)(5) ...... 3.381(f)(3). 5.360(d)(6) ...... 3.381(f)(4). 5.360(d)(7) ...... 3.381(g). 5.360(e) (introduction) ...... 3.381(f) introductory text. 5.360(e)(1) ...... 3.381(e)(5). 5.360(e)(2) ...... 3.381(e)(6). 5.360(e)(3) ...... 3.381(f)(1). 5.361(a) ...... 3.360(a) ...... Health care eligibility of a person administra- 5.361(b) ...... 3.360(c). tively discharged under other-than-honor- 5.361(c) ...... 3.360(b). able conditions. 5.362 ...... New ...... Presumption of service incurrence of active psychosis for purposes of hospital, nursing home, domiciliary, and medical care. 5.363 ...... 3.359 ...... Determination of service connection for a former member of the Armed Forces of Czechoslovakia or Poland. 5.364 ...... Reserved. Miscellaneous Service-Connection Regulations 5.365 ...... 3.300 ...... Claims based on the effects of tobacco products. 5.366 ...... 3.385 ...... Disability due to impaired hearing. 5.367 ...... 3.357 ...... Civil service preference ratings. 5.368(a) ...... 3.315(b) ...... Basic eligibility. 5.368(b) ...... 3.315(c) ...... Determinations: home loan and education benefits. 5.369 ...... Reserved.

Subpart F—Nonservice-Connected Disability Pensions and Death Pensions

Improved Pension Requirements: Veterans, Surviving Spouse, and Surviving Child 5.370 ...... 3.1(w), 3.23(a), 3.23(b), 3.23(d)(4)–(5), Definitions for Improved Pension. 3.24(a), 3.271(a), 3.271(h), 3.351(b), 3.351(f). 5.371(a) ...... 3.24(a) ...... Eligibility and entitlement requirements for Im- 5.371(b) ...... 3.3(a)(3). proved Pension. 5.371(c) ...... 3.3(b)(4), 3.24(a). 5.371(d) ...... 3.3(a)(3)(v), 3.3(b)(4)(iii), 3.23(b). 5.372(a) ...... New ...... Wartime service requirements for Improved 5.372(b) ...... 3.3(a)(3)(i)–(iv), 3.3(b)(4)(i). Pension. 5.372(c) ...... 3.3(b)(4)(ii). 5.373 ...... 3.208 ...... Evidence of age in Improved Pension claims. 5.374–5.379 ...... Reserved. Improved Disability Pension: Disability Determinations and Effective Dates 5.380(a) ...... 3.3(a)(3)(vi)(A), 3.323(b), 3.342(a) ...... Disability requirements for Improved Disability 5.380(b) ...... 3.3(a)(3)(vi)(B)(1)–(2). Pension. 5.380(c)(4) ...... 3.342(b)(4). 5.380(c)(5) ...... 3.321(b)(2). 5.381 ...... Reserved. 5.382 ...... Reserved. 5.383(a) ...... 3.400 introductory text, 3.400(b)(1) (introduc- Effective dates of awards of Improved Dis- tory text), 3.400(b)(1)(ii)(A). ability Pension. 5.383(b) ...... New. 5.384–5.389 ...... Reserved. Special Monthly Pension Eligibility for a Veteran and Surviving Spouse 5.390 ...... 3.23(d)(2), 3.351(a)(1), 3.351(a)(5), 3.351(b), Special monthly pension for a veteran or sur- 3.351(c). viving spouse based on the need for regular aid and attendance.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.391(a) ...... 3.23(d)(3), 3.351(d) ...... Special monthly pension for a veteran or sur- 5.391(b) ...... 3.23(d)(3), 3.351(f). viving spouse at the housebound rate. 5.392 ...... 3.401(a)(1), 3.402(c)(1) ...... Effective dates of awards of special monthly pension. 5.393–5.399 ...... Reserved. Maximum Annual Pension Rates 5.400 (introduction) ...... 3.23(a) introductory text, 3.24(b) ...... Maximum annual pension rates for a veteran, 5.400(a) ...... 3.23(a)(1). surviving spouse, or surviving child. 5.400(b) ...... 3.23(a)(3). 5.400(c) ...... 3.23(a)(2). 5.400(d) ...... 3.23(a)(4). 5.400(e) ...... 3.23(a)(5). 5.400(f) ...... 3.23(a)(7). 5.400(g) ...... 3.23(a)(6). 5.400(h) ...... 3.24(b). 5.401(a) ...... 3.27(a) ...... Automatic adjustment of maximum annual 5.401(b) ...... 3.23(a), 3.24(b), 3.27(e). pension rates. 5.402–5.409 ...... Reserved. Improved Pension Income, Net Worth, and Dependency 5.410(a) ...... 3.271(a) ...... Countable annual income. 5.410(b)(1) ...... 3.23(d)(4). 5.410(b)(2) ...... 3.23(d)(5). 5.410(b)(3) ...... New. 5.410(c) (introduction) ...... 3.271(a). 5.410(c)(1) ...... 3.271(a)(1), 3.273(d). 5.410(c)(2) ...... 3.271(a)(3), 3.273(c). 5.410(c)(3) ...... 3.271(a)(2), 3.273(d). 5.410(d) ...... 3.276(a). 5.410(e) ...... 3.271(b). 5.410(f) (except (f)(3)) ...... 3.271(d). 5.410(f)(3) ...... New. 5.410(g) ...... New. 5.411(a) ...... 3.23(d)(4)–(6) ...... Counting a child’s income for Improved Pen- 5.411(b) ...... 3.23(d)(6) (second sentence), 3.275(a). sion payable to a child’s parent. 5.411(c) ...... 3.23(d)(4), 3.23(d)(5), 3.272(m), 3.275(a). 5.412(a) ...... 3.272(j), 3.275(a) ...... Income exclusions for calculating countable 5.412(b) (introduction) ...... 3.272(a). annual income. 5.412(b)(1) ...... 3.272(b). 5.412(b)(2) ...... New. 5.412(b)(3) ...... 3.272(l). 5.412(c)(1) ...... 3.272(c). 5.412(c)(2) ...... New. 5.412(d) ...... 3.272(d). 5.412(e) ...... 3.272(e). 5.412(f) ...... 3.272(f). 5.412(g) ...... 3.272(n). 5.412(h) ...... 3.261(a)(38), 3.272(s). 5.412(i)–(k) ...... New. 5.412(l)(1) ...... 3.272(q). 5.412(l)(2)–(7) ...... New. 5.412(l)(8) ...... 3.272(x). 5.412(m) ...... New. 5.413(a) ...... 3.272 (introductory text) (second sentence) .... Income deductions for calculating adjusted 5.413(b) (introduction) ...... 3.272(g) introductory text, (g)(1) introductory annual income. text, (g)(2) introductory text. 5.413(b)(1) ...... 3.272(g)(1)(iii), 3.272(g)(2)(iii), 3.272(g)(3). 5.413(b)(2)(i) ...... 3.272(g)(1)(i), 3.272(g)(1)(ii). 5.413(b)(2)(ii) ...... 3.272(g)(2)(i), 3.272(g)(2)(ii). 5.413(b)(2)(iii) ...... 3.272(g)(3). 5.413(c)(1)(i) ...... 3.272(h) introductory text, 3.272(h)(1)(ii). 5.413(c)(1)(ii) ...... New. 5.413(c)(1)(iii) ...... 3.272(h)(1)(ii). 5.413(c)(2)(i) ...... 3.272(h)(2). 5.413(c)(2)(ii) ...... 3.272(h)(1)(ii). 5.413(c)(2)(iii) ...... 3.272(h)(1)(ii), 3.272(h)(2)(ii). 5.413(c)(2)(iv) ...... 3.272(h)(1)(i). 5.413(c)(3) ...... 3.272(h)(1)(ii). 5.413(d) ...... 3.272(i). 5.413(e) ...... 3.271(g).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.413(f) ...... 3.271(c). 5.414(a)(1) ...... 3.275(b) ...... Net worth determinations for Improved Pen- 5.414(a)(2) ...... 3.275(c). sion. 5.414(a)(2) ...... 3.276(b). 5.414(b)(1) ...... 3.275(b). 5.414(b)(2) ...... 3.275(b). 5.414(b)(3) ...... 3.275(e). 5.414(b)(4) ...... 3.275(h). 5.414(b)(5)–(8) ...... New. 5.414(c)(1) ...... 3.274(a). 5.414(c)(2) ...... 3.274(c). 5.414(c)(3)(i) ...... 3.24(b). 5.414(c)(3)(ii) ...... 3.274(e). 5.414(d)(1) (first sentence) ...... 3.274(a), 3.274(c), 3.274(e). 5.414(d) (except first sentence) ...... 3.275(d). 5.414(e) ...... 3.274(e). 5.415 ...... 3.660(a)(2), 3.660(d) ...... Effective dates of changes in Improved Pen- sion benefits based on changes in net worth. 5.416(a) ...... 3.23(d)(1), 3.60 ...... Persons considered as dependents for Im- 5.416(b) ...... 3.23(d)(1), 3.23(d)(4). proved Pension. 5.416(c) ...... 3.23(d)(4), (5). 5.417(a) ...... 3.57(d)(1) ...... Child custody for purposes of determining de- 5.417(b) ...... 3.57(d)(2). pendency for Improved Pension. 5.417(c) ...... 3.57(d)(3). 5.417(d) ...... 3.57(d)(3). 5.418 ...... Reserved. 5.419 ...... Reserved. Improved Pension: Income Reporting Periods, Payments, Effective Dates, and Time Limits 5.420 ...... New ...... Reporting periods for Improved Pension. 5.421 ...... 3.29(b), 3.273 introductory text, 3.273(a), How VA calculates an Improved Pension pay- 3.273(b). ment amount. 5.422(a)(1) ...... 3.500(c) ...... Effective dates of changes to annual Im- 5.422(a)(2) ...... 3.660(a)(2) (second sentence). proved Pension payment amounts due to a 5.422(b) ...... 3.500(c), 3.660(b), 3.660(c). change in income. 5.423(a) ...... 3.271(f)(1) ...... Improved Pension determinations when ex- 5.423(b) ...... 3.271(f)(2). pected annual income is uncertain. 5.424(a)–(c) ...... 3.660(b) ...... Time limits to establish entitlement to Im- 5.424(d) ...... New. proved Pension or to increase the annual Improved Pension amount based on income. 5.425 ...... 3.30 introductory text, 3.30(a)–(d), 3.30(f) ...... Frequency of payment of Improved Pension benefits. 5.426–5.429 ...... Reserved. Improved Death Pension Marriage Date Requirements and Effective Dates 5.430 (introduction) ...... 3.54 introductory text ...... Marriage date requirements for Improved 5.430(a) ...... 3.54(a)(1). Death Pension. 5.430(b) ...... 3.54(a)(3). 5.431(a) ...... New ...... Effective dates of Improved Death Pension. 5.431(b) ...... 3.400(c). 5.432 ...... New ...... Deemed valid marriages and contested claims for Improved Death Pension. 5.433(a) ...... 3.657 introductory text ...... Effective date of discontinuance of Improved 5.433(b)(1) ...... 3.657(a) introductory text, 3.657(a)(1). Death Pension payments to a beneficiary 5.433(b)(2) ...... 3.500(f), 3.657(a) introductory text, no longer recognized as the veteran’s sur- 3.657(a)(2). viving spouse. 5.434 ...... 3.500(f), 3.503(a)(9), 3.657(b) ...... Award or discontinuance of award of Im- proved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved. Calculating annual Improved Pension amounts for a surviving child. 5.435(a) ...... 3.24(b). 5.435(b)(1) ...... 3.24(c)(1). 5.435(b)(2) ...... 3.24(c)(2). 5.435(b)(3) ...... 3.57(d)(2). 5.436–5.459 ...... Reserved.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

Choosing Improved Pension over Other VA Pension Programs 5.460 ...... 3.1(u), 3.1(v), 3.1(x) ...... Definitions of certain VA pension programs. 5.461 ...... Reserved. 5.462 ...... Reserved. 5.463 ...... 3.713(a) ...... Effective dates of Improved Pension elections. 5.464 ...... 3.700(a)(4) ...... Multiple pension benefits not payable. 5.465–5.469 ...... Reserved. Continuing Entitlement to Old-Law Pension or Section 306 Pension 5.470(a) ...... 3.960(b), 3.252(a), 3.252(b) ...... Reasons for discontinuing or reducing Old- 5.470(b) ...... 3.960(d). Law Pension or Section 306 Pension. 5.470(c) ...... 3.960(c). 5.471 ...... 3.28 ...... Annual income limits and rates for Old-Law Pension and Section 306 Pension. 5.472(a) ...... 3.262(b) ...... Rating of income for Old-Law Pension and 5.472(b)(1) ...... 3.252(c). Section 306 Pension. 5.472(b)(2) (introduction) ...... New. 5.472(b)(2)(i), 5.472(b)(2)(ii) ...... 3.262(h). 5.472(b)(3) ...... 3.260(g). 5.472(b)(4) ...... 3.252(c), 3.260 introductory text, 3.660(a)(2). 5.472(c)(1) ...... 3.262(a)(2), 3.262(a)(3). 5.472(c)(2) ...... 3.262(j)(4). 5.472(c)(3) ...... 3.261(a)(22), 3.262(a)(1). 5.472(d)(1), ...... 3.262(k)(1), 3.262(k)(2). 5.472(d)(2) ...... 3.262(k)(1), 3.262(k)(2). 5.472(d)(3) ...... New. 5.472(d)(4) ...... 3.262(k)(1). 5.472(d)(5) ...... 3.262(k)(3), 3.262(k)(4). 5.472(d)(6) ...... 3.262(k)(4). 5.472(d)(7) ...... 3.262(k)(5). 5.472(e) ...... 3.261(a)(20). 5.472(f) introduction) ...... 3.262(t) introductory text. 5.472(f)(1) ...... 3.261(a)(6), 3.262(c). 5.472(f)(2) ...... 3.262(r). 5.472(f)(3) ...... 3.261(a)(12). 5.472(f)(4) ...... 3.261(a)(13). 5.472(f)(5) ...... 3.261(a)(31). 5.472(f)(6) ...... 3.262(t)(2). 5.472(f)(7) ...... 3.261(a)(20). 5.472(f)(8) ...... 3.261(a)(7). 5.472(f)(9) ...... 3.262(a)(2). 5.472(f)(10) ...... 3.261(a)(26). 5.472(f)(11) ...... 3.261(a)(22). 5.472(f)(12) ...... 3.262(e) introductory text, 3.262(e)(1)–(2), 3.262(f)–(g), 3.262(i)(2), 3.262(j)(1)–(3). 5.472(f)(13) ...... New. 5.472(g)(1) ...... 3.262(d), 3.262(f). 5.472(g)(2) ...... 3.262(f). 5.472(g)(3) ...... 3.262(k)(1). 5.472(h) ...... 3.262(d). 5.473(a) ...... 3.262(b)(2) ...... Counting a dependent’s income for Old-Law 5.473(b)(1) ...... New. Pension and Section 306 Pension. 5.473(b)(2) ...... 3.262(b)(2). 5.473(c)(1) ...... 3.252(e)(2). 5.473(c)(2) ...... 3.252(e)(3). 5.473(d) ...... 3.261(a)(4). 5.474(a) ...... 3.960(a) ...... Deductible expenses for Section 306 Pension 5.474(b) ...... 3.261(b)(1), 3.262(l), 3.262(l)(1)–(3). only. 5.474(c) ...... 3.261(b)(3), 3.262(n), 3.262(p). 5.474(d) ...... 3.261(b)(5), 3.262(k)(6). 5.475(a) ...... 3.260(f) ...... Gaining or losing a dependent for Old-Law 5.475(b) (except (b)(2)(ii)) ...... 3.260(f). Pension and Section 306 Pension. 5.475(b)(2)(ii) ...... 3.252(e)(4). 5.475(c) ...... 3.252(d)...... 5.476(a) ...... 3.263(b) ...... Net worth for Section 306 Pension only. 5.476(b) ...... 3.263(a). 5.476(c) ...... 3.263(d). 5.476(d) ...... New.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.477(a) (introduction), 5.477(a)(1) ...... 3.501(d)(2), 3.660(a)(2) ...... Effective dates of reductions or 5.477(a)(2) ...... 3.660(a)(2). discontinuances of Old-Law Pension and 5.477(a)(3) ...... 3.660(a)(2). Section 306 Pension. 5.477(b) ...... New. 5.478(a) ...... 3.260(b) ...... Time limit to establish continuing entitlement 5.478(b) ...... 3.660(b)(1). to Old-Law Pension or Section 306 Pen- 5.478(c) ...... 3.960(d). sion. 5.479–5.499 ...... Reserved.

Subpart G—Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary

General Provisions 5.500(a) ...... New ...... Proof of death. 5.500(b) ...... 3.211(a). 5.500(c) introduction ...... New. 5.500(c) (except introduction) ...... 3.211(d). 5.500(d) ...... 3.211(b). 5.500(e) ...... 3.211(c). 5.501(a) ...... New ...... Proving death by other means. 5.501(b) ...... 3.211(e) (first sentence). 5.501(c) ...... 3.211(e) (second sentence). 5.501(d) ...... 3.211(f), 3.211(g). 5.502(a) ...... 3.212(a) ...... Proving death after 7 years of continuous, un- 5.502(b) ...... 3.212(b). explained absence. 5.502(c) ...... 3.212(b), 3.212(c). 5.503(a) ...... New ...... Establishing the date of death. 5.503(b) ...... 3.212(a). 5.503(c) ...... New. 5.504 ...... 3.312 ...... Service-connected cause of death. 5.505–5.509 ...... Reserved. Dependency and Indemnity Compensation— General 5.510(a) ...... 3.5(a) ...... Dependency and indemnity compensation— 5.510(b), except for (b)(1)(ii) ...... New. basic entitlement. 5.510(b)(1)(ii) ...... 3.5(b). 5.510(c) ...... 3.5(d). 5.510(d) ...... 3.251(a)(1). 5.511(a) ...... 3.351(a)(3), 3.351(a)(4), 3.351(b), 3.351(c)(3) Special monthly dependency and indemnity 5.511(b) ...... 3.351(c)(1), 3.351(c)(2). compensation. 5.511(c) ...... 3.351(e). 5.512 ...... 3.5(c) ...... Eligibility for death compensation or death pension instead of dependency and indemnity compensation. 5.513–5.519 ...... Reserved. Dependency and Indemnity Compensation— Eligibility Requirements and Payment Rules for Surviving Spouses and Children

5.520(a) ...... New ...... Dependency and indemnity compensation— 5.520(b) ...... 3.22(d). time of marriage requirements for surviving 5.520(b)(1)(i) ...... 3.54 introductory text. spouses. 5.520(b)(1)(ii) ...... 3.54(c)(2). 5.520(b)(1)(iii) ...... 3.54(c)(3). 5.520(b)(1)(iv) ...... 3.54(c)(1). 5.520(b)(2) ...... New. 5.521 ...... 3.22(a), 3.22(b), 3.22(c) ...... Dependency and indemnity compensation benefits for survivors of certain veterans rated totally disabled at time of death. 5.522(a), 5.522(b) ...... 3.22(e) ...... Dependency and indemnity compensation 5.522(c)(1) ...... New. benefits for survivors of certain veterans 5.522(c)(2) ...... 3.22(g). rated totally disabled at time of death—off- 5.522(c)(3) ...... New. set of wrongful death damages. 5.522(c)(4) ...... 3.22(f). 5.522(c)(5) ...... 3.22(g). 5.522(d) ...... 3.22(g). 5.523 ...... 3.10 ...... Dependency and indemnity compensation rate for a surviving spouse. 5.524(a), except for (a)(1) ...... 3.650(c)(2) ...... Awards of dependency and indemnity com- 5.524(a)(1) ...... 3.650(c)(1). pensation benefits to a child when there is 5.524(b), 5.524(c) ...... 3.650(c)(1). a retroactive award to a schoolchild.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.525 ...... 3.107 ...... Awards of dependency and indemnity compensation when not all dependents apply. 5.526–5.529 ...... Reserved. Dependency and Indemnity Compensation— Eligibility Requirements and Payment Rules for A Parent

5.530 ...... New ...... Eligibility for, and payment of, parent’s dependency and indemnity compensation. 5.531(a) ...... 3.251(b), 3.262(a) introductory text...... General income rules for parent’s dependency 5.531(b)(1) ...... 3.262(a) introductory text. and indemnity compensation. 5.531(b)(2)(i) ...... 3.261(a)(7). 5.531(b)(2)(ii) ...... 3.261(a)(26). 5.531(b)(2)(iii) ...... 3.262(h). 5.531(c) ...... 3.262(b)(1). 5.531(d)(1), 5.531(d)(2) ...... 3.262(k)(1), 3.262(k)(2). 5.531(d)(3) ...... New. 5.531(d)(4) ...... 3.262(k)(1). 5.531(e) ...... 3.260(b). 5.532(a) ...... 3.262(a)(2), 3.262(a)(3) ...... Deductions from income for parent’s depend- 5.532(b) ...... 3.262(j)(4). ency and indemnity compensation. 5.532(c) ...... 3.261(b)(2), 3.261(b)(4), 3.262(o), 3.262(p). 5.532(d) ...... 3.261(b)(1), 3.262(l) introductory text, 5.532(e) ...... 3.262(l)(4). 3.261(a)(22), 3.262(a)(1). 5.533(a) ...... 3.261(a)(12) ...... Income not counted for parent’s dependency 5.533(b)(1) ...... 3.262(c). and indemnity compensation. 5.533(b)(2) ...... 3.262(d), 3.262(f). 5.533(c), 5.533(d) ...... 3.261(a)(20). 5.533(e) ...... 3.262(f). 5.533(f) ...... 3.261(a)(13). 5.533(g) (introduction)...... 3.262(e) introductory text, 3.262(e)(1), 3.262(e)(2), 3.262(e)(4). 5.533(g) ...... 3.262(e) introductory text, 3.262(e)(4), 3.262(f)–(g), 3.262(i)(2), 3.262(j)(1)–(2), 3.262(j)(4). 5.533(h) ...... 3.262(t) introductory text, 3.262(t)(1). 5.533(i) ...... 3.262(k)(5). 5.533(j) ...... 3.261(a)(31). 5.533(k) ...... 3.261(a)(38), 3.262(w). 5.533(l)–(n) ...... New. 5.533(o) ...... 3.262(a)(2) (last sentence). 5.533(p) ...... 3.261(a)(22). 5.533(q) ...... New. 5.534(a) ...... 3.251(b), 3.260 introductory text ...... When VA counts a parent’s income for par- 5.534(b) ...... 3.260(c), 3.260(d), 3.260(f). ent’s dependency and indemnity compensa- 5.534(c) ...... 3.260(f). tion. 5.535 ...... 3.660(b) introductory text, 3.660(b)(1) ...... Adjustment to a parent’s dependency and indemnity compensation when income changes. 5.536(a) ...... 3.25 ...... Parent’s dependency and indemnity compensation rates. 5.536(b) ...... 3.25, 3.27(b), 3.27(e). 5.536(c) ...... 3.25(b), 3.251(a)(2). 5.536(d) ...... 3.251(a)(4). 5.536(e) ...... 3.251(a)(5). 5.536(f)(1) ...... 3.25(a), 3.25(c), 3.25(d). 5.536(f)(2) ...... 3.25(e). 5.536(g) ...... 3.260(f). 5.536(h) ...... 3.704(b). 5.537(b) ...... 3.30 introductory text, 3.30(e) ...... Payment intervals for parent’s dependency and indemnity compensation. Effective Dates 5.538(a) ...... 3.400(c)(1) ...... Effective date of dependency and indemnity 5.538(b) ...... 3.400(c)(2). compensation award. 5.538(c) ...... 3.400(c)(4)(i). 5.538(d) ...... 3.400(c)(4)(ii). 5.538(e) ...... 3.402(a).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.539(a) ...... 3.657 introductory text ...... Discontinuance of dependency and indemnity 5.539(b)(1) ...... 3.657(a) introductory text, 3.657(a)(1). compensation to a person no longer recog- 5.539(b)(2) ...... 3.500(f), 3.657(a) introductory text, nized as the veteran’s surviving spouse. 3.657(a)(2). 5.540(a) ...... 3.657 introductory text ...... Effective date and payment adjustment rules 5.540(b) ...... 3.657(b)(1). for award or discontinuance of dependency 5.540(c)(1), 5.540(c)(2) ...... 3.657(b)(2). and indemnity compensation to a surviving 5.540(c)(3) ...... New. spouse where payments to a child are involved. 5.541 ...... 3.502 introductory text, 3.502(b) ...... Effective date of reduction of a surviving spouse’s dependency and indemnity compensation due to recertification of pay grade. 5.542(a) ...... 3.660(b) introductory text, 3.660(b)(1) ...... Effective date of an award or an increased 5.542(b) ...... 3.660(b)(2). rate based on decreased income: parents’ dependency and indemnity compensation. 5.543(a) ...... 3.660(a)(2) (second sentence) ...... Effective date of reduction or discontinuance 5.543(b) ...... 3.660(a)(3). based on increased income: parents’ dependency and indemnity compensation. 5.544(a) ...... 3.650(a) introductory text ...... Dependency and indemnity compensation 5.544(b)(1) ...... 3.650(a)(1). rate adjustments when an additional sur- 5.544(b)(2) ...... 3.650(a)(2). vivor files a claim. 5.544(c) ...... 3.650(b). 5.544(d) ...... 3.650(a) (last paragraph). 5.545(a) ...... 3.402(c), 3.404 ...... Effective dates of awards and 5.545(b)(1) ...... 3.502(e)(1), 3.504. discontinuances of special monthly depend- 5.545(b)(2) ...... New. ency and indemnity compensation. 5.545(c) ...... 3.402(c)(2), 3.404. 5.546–5.550 ...... Reserved. Accrued Benefits 5.551(a) ...... 3.667(e), 3.1000(d)(2), 3.1000(d)(3) ...... Persons entitled to accrued benefits. 5.551(b) ...... 3.1000(a). 5.551(c) ...... 3.1000(a)(1), 3.1000(d)(1). 5.551(d) ...... 3.1000(a)(2), 3.1000(f). 5.551(e) ...... 3.1000(a)(3), 3.1000(a)(4), 3.1000(d)(2). 5.551(f) ...... 3.1000(a)(5), 3.1002. 5.551(g) ...... 3.1000(c)(2). 5.552 ...... 3.1000(c) ...... Claims for accrued benefits. 5.553 ...... 3.1000(c)(1) ...... Notice of incomplete applications for accrued benefits. 5.554 ...... 3.803(d), 3.1000(e)–(h) ...... VA benefits payable as accrued benefits. 5.555 ...... New ...... Relationship between accrued-benefits claim and claims filed by the deceased beneficiary. 5.556–5.563 ...... Reserved. Special Provisions 5.564(a)(1) ...... 3.1003 introductory text, 3.1003(a), 3.1003(b) Cancelation of checks mailed to a deceased 5.564(a)(2), 5.564(a)(3) ...... New. payee; payment of such funds as accrued 5.564(b) ...... 3.1003(a)(2). benefits. 5.564(c) ...... 3.1003(c). 5.565(a)–(d)(1) ...... New ...... Special rules for payment of VA benefits on 5.565(d)(2) ...... 3.1008. deposit in a special deposit account when a payee living in a foreign country dies. 5.566(a) ...... 3.1009 introductory text ...... Special rules for payment of all VA benefits 5.566(b) and (c) ...... New. except insurance payments deposited in a 5.566(d) ...... 3.1000(d)(1)–(3), 3.1009(a). personal funds of patients account when an 5.566(e) ...... 3.1009(b). incompetent veteran dies. 5.567 ...... 3.1001 ...... Special rules for payment of Old-Law Pension when a hospitalized competent veteran dies. 5.568 ...... 3.1007 ...... Non-payment of certain benefits upon death of an incompetent veteran. 5.569–5.579 ...... Reserved.

Subpart H—Special and Ancillary Benefits for Veterans, Dependents, and Survivors

Special Benefits for Veterans, Dependents, and Survivors 5.580(a) ...... 3.802(a) ...... Medal of Honor pension. 5.580(b)(1), 5.580(b)(2) ...... 3.802(b).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.580(b)(3) ...... 3.802(c). 5.580(b)(4) ...... 3.27(d). 5.580(c), 5.580(d) ...... 3.802(b). 5.581(a), 5.581(b) ...... 3.801(a) ...... Awards of VA benefits based on special acts 5.581(c)(1) ...... 3.801(c)(2). or private laws. 5.581(c)(2) ...... 3.801(d). 5.581(d) ...... 3.801(b). 5.581(e)(1) ...... 3.801(e). 5.581(e)(2) ...... New. 5.581(f) ...... 3.801(c)(1). 5.582 ...... 3.803 ...... Naval pension. 5.583 ...... 3.804 ...... Special allowance under 38 U.S.C. 1312. 5.584 ...... 3.805 ...... Loan guaranty for a surviving spouse: eligibility requirements. 5.585 ...... 3.806 ...... Certification for death gratuity. 5.586(a) ...... New ...... Certification for dependents’ educational as- 5.586(b) ...... 3.807(c). sistance. 5.586(c) ...... 3.807(c). 5.587 ...... 3.811 ...... Minimum income annuity and gratuitous annuity. 5.588 ...... 3.812 ...... Special allowance payable under section 156 of Public Law 97–377. 5.589 ...... 3.27(c); 3.814 ...... Monetary allowance for a Vietnam veteran’s child born with spina bifida. 5.590 ...... 3.27(c), 3.815 ...... Monetary allowance for a female Vietnam veteran’s child with certain birth defects. 5.591 (introduction) ...... New ...... Effective dates of awards for a disabled child 5.591(a) (introduction) ...... 3.403(b), 3.403(c), 3.814(e) introductory text, of a Vietnam veteran. 3.815(i) introductory text. 5.591(a)(1) ...... 3.403(b). 5.591(a)(2) ...... 3.403(c), 3.815(i) introductory text. 5.591(a)(3) ...... 3.403(b), 3.403(c), 3.815(i). 5.591(a)(4) ...... 3.400(g), 3.814(e)(2), 3.815(i)(2). 5.591(a)(5) ...... 3.400(o)(2), 3.814(e)(1), 3.815(i)(1). 5.591(b) (introduction) ...... 3.500(a), 3.814(f), 3.815(j). 5.591(b)(1) ...... 3.814(f)(1), 3.815(j)(1). 5.591(b)(2) ...... 3.814(f)(2), 3.815(j)(2). 5.591(b)(3) ...... 3.503(b). 5.591(b)(4) ...... 3.814(f) introductory text; 3.815(j) introductory text. 5.591(b)(5) ...... 3.105(g), 3.500(r). 5.592 ...... 3.816 ...... Awards under Nehmer Court orders for disability or death caused by a condition presumptively associated with herbicide exposure. 5.593–5.599 ...... Reserved. Ancillary Benefits for Certain Service-Con- nected Veterans and Certain Members of the Armed Forces Serving on Active Duty 5.600–5.602 ...... Reserved. 5.603(a) ...... New ...... Financial assistance to purchase a vehicle or 5.603(b)(1) ...... 3.808(e). adaptive equipment. 5.603(b)(2) ...... New. 5.603(c)(1) ...... 3.808(a), 3.808(b). 5.603(c)(2)(i)–(iv) ...... 3.808(b). 5.603(c)(2)(v) ...... New. 5.603(d)(1) ...... 3.808(c). 5.603(d)(2) ...... New. 5.603(d)(3) ...... 3.808(d). 5.603(e) ...... 3.808(c). 5.604 ...... 3.809 ...... Specially adapted housing under 38 U.S.C. 2101(a). 5.605 ...... 3.809a ...... Special home adaptation grants under 38 U.S.C. 2101(b). 5.606(a) ...... New ...... Clothing allowance. 5.606(b) ...... 3.810(a) introductory text. 5.606(b)(1) ...... 3.810(a)(1). 5.606(b)(2) ...... 3.810(a)(2). 5.606(b)(3) ...... 3.810(a)(2). 5.606(c) ...... 3.810(a) introductory text. 5.606(c)(1), 5.606(c)(2) ...... 3.810(a)(1), 3.810(a)(2).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.606(d) ...... 3.810(b). 5.606(e)(1) ...... 3.810(c)(1). 5.606(e)(2) ...... 3.810(c)(2). 5.606(f) ...... 3.810(d). 5.607–5.609 ...... Reserved.

Subpart I—Benefits for Certain Filipino Veterans and Survivors

Philippine Service 5.610 ...... 3.40 ...... Eligibility for VA benefits based on Philippine service. 5.611 ...... 3.41 ...... Philippine service: determination of periods of active military service, including, but not limited to, periods of active military service while in prisoner of war status. Benefits and Effective Dates of Certain Filipino Veterans and Survivors 5.612 ...... New ...... Overview of benefits available to a Filipino veteran and his or her survivor. 5.613 ...... 3.42 ...... Payment at the full-dollar rate for disability compensation or dependency and indemnity compensation for certain Filipino veterans or their survivors residing in the U.S. 5.614 ...... 3.405 ...... Effective dates of benefits at the full-dollar rate for a Filipino veteran and his or her survivor. 5.615(a) ...... 3.251(a)(3) ...... Parents’ dependency and indemnity com- 5.615(b) ...... 3.251(a)(1), 3.251(a)(3). pensation based on certain Philippine service. 5.616 ...... 3.1605(a)(3) (last sentence) ...... Hospitalization in the Philippines. 5.617(a) ...... 3.43(a) ...... Burial benefits at the full-dollar rate for certain 5.617(b) ...... 3.43(b). Filipino veterans residing in the U.S. on the 5.617(c) ...... 3.43(c). date of death. 5.618(a) ...... New ...... Effective dates of reductions and 5.618(b) ...... 3.500(p). discontinuances for benefits at the full-dollar 5.618 (c) ...... 3.505. rate for a Filipino veteran and his or her survivor. 5.619–5.629 ...... Reserved.

Subpart J—Burial Benefits

Burial Benefits: General. 5.630 ...... New ...... Types of VA burial benefits. 5.631(a), 5.631(b) ...... 3.1600 (first sentence), 3.1600(d) ...... Deceased veterans for whom VA may provide 5.631(c) ...... New. burial benefits. 5.632 ...... 3.1601(a)(1), 3.1601(a)(2) ...... Persons who may receive burial benefits. 5.633(a) ...... 3.1601(a) ...... Claims for burial benefits. 5.633(b) ...... 3.203(c), 3.1601(b). 5.634(a) ...... New ...... Reimbursable burial expenses: general. 5.634(b)(1) ...... 3.1607. 5.634(b)(2), 5.634(b)(3) ...... 3.1608. 5.635 ...... 3.1606 ...... Reimbursable transportation expenses for a veteran who is buried in a national cemetery or who died while hospitalized by VA. 5.636 ...... 3.1600(b)(3), 3.1601(b)(5), 3.1603, 3.1610(b) Burial of a veteran whose remains are unclaimed. 5.637 ...... Reserved. Burial Benefits: Allowances & Expenses Paid by VA 5.638(a) ...... 3.1600(a) ...... Burial allowance based on service-connected 5.638(b) ...... New. death. 5.638(c)(1) ...... 3.1600(g). 5.638(c)(2) ...... New. 5.639(a), 5.639(c) ...... 3.1600(g) ...... Transportation expenses for burial in a na- 5.639(b) ...... New. tional cemetery. 5.640–5.642 ...... Reserved. 5.643 ...... 3.1600(b)(1)–(2), 3.1600(b)(4) ...... Burial allowance based on nonservice-connected death.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.644(a) ...... 3.1600(c), 3.1605 introductory text ...... Burial allowance for a veteran who died while 5.644(b)(1)–(4) ...... 3.1600(c). hospitalized by VA. 5.644(b)(5) ...... 3.1605(a). 5.644(b)(6) ...... 3.1605(d). 5.644(c) ...... 3.1605(a). 5.644(d) ...... 3.1605(b). 5.645(a) ...... 3.1604(d)(1)(i)–(iv), 3.1604(d)(3) ...... Plot or interment allowance. 5.645(b) ...... 3.1600(f). 5.645(c) ...... 3.1601(a)(3). 5.646–5.648 ...... Reserved. Burial Benefits: Other 5.649(a) ...... 3.1602(b), 3.1604(d)(4) ...... Priority of payments when there is more than 5.649(b) ...... 3.1602(a). one claimant. 5.649(c) ...... 3.1602(c). 5.649(d) ...... 3.1601(a)(2)(iii) (second and third sentences). 5.649(e) ...... 3.1602(a). 5.650 ...... 3.1602(d) ...... Escheat (payment of burial benefits to an estate with no heirs). 5.651(a), (b) ...... 3.1604(a), 3.1604(c), 3.1604(a)(2) ...... Effect of contributions by government, public, 5.651(c)(1) ...... 3.1604(b)(1), 3.1604(b)(2) or private organizations. 5.651(c)(2) ...... 3.1604(b)(3) 5.651(c)(3) ...... New. 5.651(d) ...... 3.1604(a)(1). 5.652 ...... 3.1609 ...... Effect of forfeiture on payment of burial benefits. 5.653 ...... 3.954 ...... Eligibility based on status before 1958. 5.654–5.659 ...... Reserved.

Subpart K—Matters Affecting the Receipt of Benefits

Bars to Benefits 5.660(a) ...... 3.301(a) ...... In the line of duty. 5.660(b) ...... 3.1(m) (first sentence). 5.660(c) ...... 3.1(m)(1)–(3). 5.660(d) ...... 3.1(m) (second sentence). 5.661(b)(1) ...... 3.1(n)(3), 3.301(a) ...... Willful misconduct. 5.661(b)(2) ...... 3.301(b). 5.661(c)(1) ...... 3.301(c)(2), 3.301(d). 5.661(c)(2) ...... 3.301(c)(3), 3.301(d). 5.661(d) ...... 3.302. 5.661(e) ...... 3.301(c)(1). 5.661(f) ...... 3.1(n) introductory text. 5.662(a) ...... 3.301(d). 5.662(b)–(d) ...... New ...... Alcohol and drug abuse. 5.663 ...... 3.11 ...... Homicide as a bar to VA benefits. 5.663(c)–(f) ...... New. 5.664–5.674 ...... Forfeiture and Renouncement of the Right to VA Benefits 5.675(a) ...... 3.900(a) ...... General forfeiture provisions. 5.675(b) ...... 3.900(c) 5.676(a) ...... 3.901(a) ...... Forfeiture for fraud. 5.676(b)(1) ...... 3.900(b)(2), 3.901(d). 5.676(b)(2) ...... 3.900(b)(2), 3.901(b). 5.676(b)(3)(i) ...... 3.900(b)(2), 3.901(d) (last sentence). 5.676(b)(3)(ii)–(iii), 5.676(b)(4) ...... New. 5.676(b)(5) ...... 3.669(a), 3.669(b)(1), 3.900(b)(2). 5.676(c)(1) ...... 3.669(d)(1), 3.900(b)(2) (last sentence). 5.676(c)(2)(i) ...... 3.900(b)(2), 3.901(c). 5.676(c)(2)(ii), 5.676(c)(3) ...... New. 5.676(d) ...... 3.904(a). 5.676(e) ...... New. 5.677(a) ...... 3.902(a) ...... Forfeiture for treasonable acts. 5.677(b)(1) ...... 3.900(b)(2), 3.902(d). 5.677(b)(2) ...... 3.900(b)(2), 3.902(b), 3.904(b) (last sentence). 5.677(b)(3)(i) ...... 3.900(b)(2), 3.902(d) (last sentence). 5.677(b)(3)(ii) ...... 3.900(b)(2), 3.904(b) (last sentence). 5.677(b)(4) ...... New. 5.677(b)(5) ...... 3.669(a), 3.669(b)(2), 3.900(b)(2). 5.677(c)(1) ...... 3.669(d)(1), 3.900(b)(2) (last sentence).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.677(c)(2) ...... 3.900(b)(2), 3.902(c), 3.904(b). 5.677(d) ...... 3.902(e). 5.677(e) ...... New. 5.678(a)(1) ...... 3.903(a)(3) ...... Forfeiture for subversive activity. 5.678(a)(2) ...... 3.903(a)(1). 5.678(a)(3) ...... 3.903(a)(2). 5.678(a)(4) ...... 3.903(a)(4). 5.678(a)(5) ...... 3.903(a)(5). 5.678(b)(1) ...... 3.903(b)(2). 5.678(b)(2)(i) ...... 3.669(a). 5.678(b)(2)(ii) ...... 3.669(c) (first sentence). 5.678(b)(3)(i), 5.678(b)(3)(ii) ...... 3.900(b)(2), 3.903(b)(1). 5.678(b)(3)(iii) ...... New. 5.678(b)(3)(iv) ...... 3.900(b)(2), 3.903(b)(1), 3.904(c) (first sentence). 5.678(c)(1) ...... New. 5.678(c)(2) ...... 3.904(c) (last sentence). 5.679(a) ...... 3.905(a) ...... Forfeiture decision procedures. 5.679(b) ...... 3.905(b). 5.679(c)(1) ...... 3.905(c). 5.679(c)(2) ...... 3.905(b). 5.679(d), 5.679(e) ...... 3.905(d). 5.680(a) ...... 3.905(a) ...... Revocation of forfeiture. 5.680(b) ...... New. 5.680(c)(1), 5.680(c)(2) ...... 3.901(e). 5.680(c)(3) ...... 3.905(e). 5.681(a)(1) ...... 3.669(a). 5.681(a)(2) ...... 3.669(b) ...... Effective dates: forfeiture. 5.681(b)(1) ...... 3.500(k), 3.669(b)(1) (last sentence). 5.681(b)(2) ...... 3.500(s)(1), 3.669(b)(2) (last sentence). 5.681(b)(3) ...... 3.500(s)(2), 3.669(c) (last sentence). 5.682(a) ...... 3.903(c) ...... Presidential pardon for offenses causing for- 5.682(b), 5.682(c) ...... 3.669(d)(1). feiture. 5.682(d) ...... 3.669(d)(2). 5.683(a), 5.683(b) ...... 3.106(a) ...... Renouncement of benefits. 5.683(c) ...... 3.106(a), 3.500(q). 5.683(d)(1) ...... 3.106(d). 5.683(d)(2) ...... 3.106(e). 5.683(e)(1) ...... 3.106(b), 3.400(s). 5.683(e)(2) ...... 3.106(c). 5.684–5.689 ...... Reserved.

Subpart L—Payments and Adjustments to Payments

General Rate-Setting and Payments 5.690 ...... 3.21 ...... Where to find benefit rates and income limits. 5.691(a) ...... 3.260(g) ...... Adjustments for fractions of dollars. 5.691(b) ...... 3.29(a), 3.29(c). 5.691(c) ...... 3.29(b). 5.692 ...... 3.112 ...... Fractions of one cent not paid. 5.693(a) ...... 3.31(a) ...... Beginning date for certain VA benefit pay- 5.693(b), 5.693(c)(8), 5.693(d) ...... 3.31 introductory text. ments. 5.693(c) ...... 3.31(b), 3.31(c). 5.693(c)(1) ...... 3.31(b). 5.693(c)(2) ...... New. 5.693(c)(3) ...... 3.31(c)(1). 5.693(c)(4) ...... 3.31(c)(3). 5.693(c)(5) ...... 3.31(c)(4). 5.693(c)(6) ...... 3.31(c)(5). 5.693(c)(7) ...... 3.31(c)(3). 5.693(c)(8) ...... 3.31(c)(2). 5.693(c)(9) ...... 3.656(a), 3.656(d). 5.693(c)(10) ...... New. 5.693(d) ...... 3.31(c)(2). 5.693(e) ...... New. 5.694 ...... 3.500(g)(1) ...... Deceased beneficiary. 5.695 ...... 3.20 ...... Surviving spouse’s benefit for the month of the veteran’s death. 5.696(a) ...... 3.57(a)(1)(iii), 3.403(a)(4) ...... Payments to or for a child pursuing a course 5.696(b) ...... 3.403(a)(4), 3.667(a)(1) and (2). of instruction at an approved educational in- 5.696(c) ...... 3.403(a)(4), 3.667(a)(3)–(5). stitution. 5.696(d) ...... 3.403(a)(4), 3.667(a)(5).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.696(e) ...... 3.403(a)(4). 5.696(f) ...... 3.403(a)(4), 3.667(b). 5.696(g) ...... 3.403(a)(4), 3.503(a)(5), 3.667(c). 5.696(h) ...... 3.403(a)(4), 3.667(d). 5.696(i) ...... 3.403(a)(4), 3.667(f). 5.697(a) (introduction) ...... 3.32 (introductory text) ...... Exchange rates for income received or ex- 5.697(a)(1) ...... 3.32(a)(1). penses paid in foreign currencies. 5.697(a)(2) ...... 3.32(a)(2). 5.697(b) ...... 3.32(b). 5.698–5.704 ...... Reserved. General Reductions, Discontinuances, and Resumptions 5.705(a) ...... 3.500 introductory text, 3.500(a), 3.501 intro- General effective dates for reduction or dis- ductory text, 3.502 introductory text, continuance of benefits. 3.500(a) introductory text. 5.705(b) ...... New. 5.706(a) ...... New. 5.706(b) (introduction) ...... New. 5.706(b)(1) ...... 3.261(a)(32) ...... Payments excluded in calculating income or 5.706(b)(2) ...... 3.261(a)(41), 3.262(z), 3.263(h), 3.272(v), net worth. 5.706(b)(3) ...... 3.275(j). 3.261(a)(36), 3.262(u), 3.263(f), 3.272(p), 3.275(g). 5.706(b)(4) ...... New. 5.706(b)(5) ...... 3.261(a)(35), 3.262(s), 3.263(e), 3.272(o), 3.275(f). 5.706(b)(6) ...... 3.261(a)(40), 3.262(y), 3.263(g), 3.272(u), 3.275(i). 5.706(b)(7) ...... New. 5.706(b)(8) ...... New. 5.706(b)(9) ...... New. 5.706(b)(10) ...... New. 5.706(b)(11) ...... 3.261(a)(39),3.262(x) 3.272(t). 5.706(b)(12) ...... New. 5.70(b)(13) ...... New. 5.706(b)(14) ...... New. 5.706(b)(15) ...... 3.261(a)(33), 3.261(a)(34). 5.706(b)(16) ...... New. 5.706(b)(17) ...... New. 5.706(b)(18) ...... New. 5.706(b)(19) ...... New. 5.706(b)(20) ...... New. 5.706(b)(21) ...... 3.261(a)(33), 3.262(q). 5.706(b)(22) ...... New. 5.706(b)(23) ...... 3.261(a)(14); 3.262(e). 5.706(b)(24) ...... 3.261(a)(42), 3.262(aa), 3.263(i), 3.272(w), 3.275(k). 5.707(a), 5.707(b) ...... New ...... Deductible medical expenses. 5.707(c) ...... 3.261(b)(1), 3.262(l), 3.272(g). 5.708(a)(1) ...... 3.256(b)(1), 3.277(c) ...... Eligibility verification reports. 5.708(a)(2) ...... 3.661(b)(2). 5.708(b) (introduction) ...... 3.256(b)(4), 3.277(c)(3). 5.708(b) (except introduction) ...... 3.256(b)(3), 3.256(b)(4), 3.277(c)(2). 5.708(c) ...... New. 5.708(d) ...... 3.661(a)(1). 5.708(e)(1) ...... 3.256(c), 3.277(d). 5.708(e)(2) ...... New. 5.708(e)(3) ...... 3.661(b)(2)(i). 5.708(f) ...... 3.661(b)(2)(iii). 5.708(g) ...... 3.661(b)(2)(ii). 5.709(a) ...... 3.256(a), 3.277(a), 3.277(b), 3.660(a)(1) ...... Claimant and beneficiary responsibility to re- 5.709(b) ...... 3.256(a), 3.277(b) port changes. 5.710(a) ...... 3.651(a) ...... Adjustment in benefits due to reduction or dis- 5.710(b) ...... 3.651(b) continuance of a benefit to another payee. 5.710(c) ...... 3.651(c) 5.711(a) ...... 3.656(a) ...... Payment to dependents due to the disappear- 5.711(b) ...... 3.656(a). ance of a veteran for 90 days or more. 5.711(c) ...... 3.656(d). 5.711(d)(1) ...... 3.501(c), 3.656(b). 5.711(d)(2) ...... 3.656(c).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.712 ...... 3.158(c), 3.500(t) ...... Suspension of VA benefits due to the disappearance of a payee. 5.713(a)–(b)(1) ...... 3.653(a)...... Restriction on VA benefit payments to an 5.713(b)(2), 5.713(b)(3) ...... New. alien located in enemy territory. 5.713(c) ...... New. 5.714(a) ...... New ...... Restriction on delivery of VA benefit payments 5.713(b)(2), 5.713(b)(3) ...... 3.653(c)(1). to payees located in countries on Treasury 5.714(c), 5.714(d) ...... 3.653(c). Department list. 5.714(e) ...... 3.653(c)(1). 5.714(f) ...... New. 5.715(a) ...... New ...... Claims for undelivered or discontinued bene- 5.715(b)(1) ...... 3.653(b) fits. 5.715(b)(2) ...... 3.653(b), 3.653(c)(3). 5.715(b)(3) ...... 3.653(b). 5.715(c) ...... 3.653(b). 5.715(d) ...... 3.653(b), 3.653(c)(3). 5.715(e) ...... 3.653(d). 5.715(f) ...... New. 5.716–5.719 ...... Reserved. Hospital, Domiciliary, and Nursing Home Care Reductions and Resumptions 5.720(a) ...... 3.551(a), 3.552(b)(3), 3.556(a), 3.556(f) ...... Adjustments to special monthly compensation 5.720(b) ...... 3.501(b)(1)–(2), 3.552(a)(1), 3.552(b)(1), based on the need for regular aid and at- 3.552(b)(2), 3.552(c). tendance while a veteran is receiving hos- 5.720(c)(1) ...... 3.501(b)(2), 3.552(b)(2). pital, domiciliary, or nursing home care. 5.720(c)(2) ...... 3.552(d), 3.552(i). 5.720(c)(3) ...... 3.552(f), 3.552(g). 5.720(c)(4) ...... 3.552(h). 5.720(c)(5) ...... 3.552(a)(3) (first sentence). 5.706(c)(6) ...... 3.552(a)(3) (second sentence). 5.720(d) ...... 3.552(a)(1), 3.552(a)(2). 5.720(e) ...... 3.552(b)(3). 5.720(f) ...... 3.552(k). 5.721 ...... New ...... Reduction of Improved Pension while a veteran is receiving domiciliary or nursing home care. 5.722(a)(1) ...... 3.551(e)(1) ...... Reduction of Improved Pension while a vet- 5.722(a)(2) ...... 3.551(e)(1). eran is receiving domiciliary or nursing 5.722(a)(3) ...... 3.501(i)(5)(i), 3.551(e)(1). home care. 5.722(b)(1) ...... 3.551(a). 5.722(b)(2), 5.722(b)(3) ...... New. 5.722(b)(4) ...... 3.551(e)(6). 5.722(c) ...... 3.551(e)(3). 5.722(d)(1) ...... 3.501(i)(5)(ii), 3.551(e)(2). 5.722(d)(2) ...... New. 5.722(e) ...... 3.551(e)(4). 5.722(f) ...... 3.551(h). 5.722(g) ...... 3.551(e). 5.723 (except 5.723(d) ...... 3.501(i)(6), 3.502(f), 3.551(i) ...... Reduction of Improved Pension while a vet- 5.723(d) ...... New. eran, surviving spouse, or child is receiving Medicaid-covered care in a nursing facility. 5.724(a) ...... 3.501(b)(1), 3.552(b)(1), 3.552(e) (third and Reduction or discontinuance of Improved fourth sentences). Pension based on the need for regular aid 5.724(b) ...... 3.552(a)(1), 3.552(a)(2). and attendance while a veteran is receiving 5.724(c) ...... 3.501(i)(3), 3.552(b)(3). hospital, domiciliary, or nursing home care. 5.724(d) ...... 3.401(a)(2), 3.552(k). 5.725 ...... New ...... Resumption of Improved Pension and Im- proved Pension based on the need for regular aid and attendance after a veteran is on temporary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. 5.726(a)(1) ...... 3.551(a), 3.551(c)(1) Reduction of Section 306 Pension while a vet- 5.726(a)(2) ...... 3.551(g). eran is receiving hospital, domiciliary, or 5.726(a)(3) ...... 3.551(c)(1). nursing home care. 5.726(a)(4) ...... 3.501(i)(2)(i), 3.551(c)(1). 5.726(a)(5) ...... 3.551(f). 5.726(b)(1) ...... 3.551(a). 5.726(b)(2), 5.726(b)(3) ...... New. 5.726(c) ...... 3.551(c)(3). 5.726(d)(1) ...... 3.501(i)(2)(iii), 3.551(c)(2).

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

5.726(d)(2) ...... New. 5.727(a)(1) ...... 3.551(b)(1) ...... Reduction of Old-Law Pension while a vet- 5.727(a)(2) ...... 3.551(g). eran is receiving hospital, domiciliary, or 5.727(a)(3) ...... 3.551(b)(1). nursing home care. 5.727(a)(4)(i) (first sentence) ...... 3.501(i)(1), 3.551(b)(1). 5.727(a)(4)(i) (second sentence) ...... New. 5.727(a)(4)(ii) ...... 3.551(b)(3). 5.727(b)(1) ...... 3.551(a). 5.727(b)(2), 5.727(b)(3) ...... New. 5.727(c)(1) ...... 3.551(b)(2). 5.727(c)(2) ...... 3.551(b)(3). 5.728(a) ...... 3.501(b)(1), 3.552(b)(1), 3.552(e), 3.552(j) ..... Reduction of Old-Law Pension or Section 306 5.728(b) ...... 3.552(e). Pension based on the need for regular aid 5.728(c) ...... 3.552(b)(3). and attendance while a veteran is receiving hospital, domiciliary, or nursing home care. 5.729(a) ...... 3.556(a) ...... Resumption of Section 306 Pension and Sec- 5.729(b) ...... 3.556(b), 3.556(d) (third and fourth sen- tion 306 Pension based on the need for 5.729(c) ...... tences). regular aid and attendance after a veteran 5.729(d) ...... 3.556(c). is on temporary absence from hospital, 3.556(d) (first sentence), 3.556(e). domiciliary, or nursing home care or is discharged or released from such care. 5.730(a) ...... 3.556(a)(1) ...... Resumption of Old-Law Pension and Old-Law 5.730(b) ...... 3.556(b). Pension based on the need for regular aid 5.730(c) ...... 3.556(e). and attendance after a veteran is on tem- 5.730(d) ...... 3.556(d). porary absence from hospital, domiciliary, or nursing home care or is discharged or released from such care. 5.731–5.739 ...... Reserved.

Payments to a Beneficiary Who is Eligible for More than One Benefit: General Provisions

5.740(a), 5.740(b) ...... 3.701(b) ...... Definitions relating to elections. 5.740(d) ...... 3.750(d)(2). 5.741(a) ...... New ...... Persons who may make an election. 5.741(b) ...... New. 5.742(a) ...... 3.701(b), 3.702(d)(1) (second sentence), Finality of elections; cancellation of certain 5.742(b) ...... 3.711 (second sentence). elections. 5.742(c) ...... New. 5.742(d), 5.742(e) ...... 3.702(d)(1) (second sentence). New. 5.743(a) ...... 3.400(j)(1) ...... General effective dates for awarding, reduc- 5.743(b) ...... 3.500(e) (first sentence), 3.500(i), 3.500(x). ing, or discontinuing VA benefits because of an election. 5.744 ...... Reserved. Payments from Service Departments and the Effects of Those Payments on VA Benefits 5.745 ...... 3.401(e), 3.750 ...... Entitlement to concurrent receipt of military re- 5.745(b)(4) ...... 3.261(a)(15). tired pay and VA disability compensation. 5.746(a) ...... 3.654(a) (first sentence), 3.700(a)(1)(i) ...... Prohibition against receipt of active military 5.746(b) ...... 3.654(a) (second sentence), 3.700(a)(1)(ii). service pay and VA benefits for the same 5.746(c) ...... 3.501(a), 3.654(b)(1). period. 5.746(d)(1) ...... 3.654(b)(2) (first sentence). 5.746(d)(2)(i) ...... New. 5.746(d)(2)(ii) ...... 3.654(b)(2) (third and fourth sentences). 5.746(d)(3) ...... New. 5.746(d)(4) ...... 3.654(b)(2) (second sentence). 5.746(d)(5) ...... 3.654(b)(2) (last sentence). 5.746(e) ...... 3.654(c), 3.700(a)(1)(iii). 5.747(a)(1) ...... 3.700(a)(2)(iii) (first sentence) ...... Effect of military readjustment pay, disability 5.747(a)(2) ...... 3.700(a)(2)(iv). severance pay, and separation pay on VA 5.747(b) ...... 3.700(a)(3). benefits. 5.747(c)(1) ...... 3.700(a)(5)(i) (first sentence). 5.747(c)(2) ...... 3.700(a)(5)(ii). 5.747(d) ...... 3.700(a)(2)(iii), 3.700(a)(3), 3.700(a)(5)(i). 5.748 ...... 3.753 ...... Concurrent receipt of VA disability compensation and retired pay by certain officers of the Public Health Service. 5.749 ...... Reserved.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

Payments from Other Federal Agencies and the Effects of Those Payments on VA Bene- fits for a Veteran and Survivor 5.750(a)(1) ...... 3.500(e) (second sentence), 3.658(a), Election between VA benefits and compensa- 5.750(a)(2) ...... 3.708(a)(1), 3.708(a)(4). tion under the Federal Employees’ Com- 5.750(b) ...... 3.708(a)(2). pensation Act for death or disability due to 3.708(a)(3), 3.500(e) (second sentence). military service. 5.751(a)(1) ...... 3.500(e) (second sentence), 3.708(b)(1) (first Election between VA benefits and compensa- sentence). tion under the Federal Employees’ Com- 5.751(a)(2) ...... 3.708(b)(1) (second sentence), 3.958. pensation Act for death or disability due to 5.751(b)(1) (last sentence) ...... 3.500(e) (third sentence), 3.708(b)(2). Federal civilian employment. 5.751(c) ...... 3.500(e) (second sentence), 3.708(b)(1) (second and third sentences (excluding intervening cross reference)). 5.751(d) ...... 3.500(e) (second sentence). 5.751(e)(1) (last sentence)...... 3.500(e) (third sentence), 3.708(a)(3), 3.708(b)(1) (last sentence). 5.752 ...... 3.400(f) ...... Procedures for elections between VA benefits and compensation under the Federal Em- ployees’ Compensation Act. 5.753 ...... 3.710 ...... Payment of VA benefits and civil service retirement benefits for the same period. 5.754(a) ...... New ...... Effect of payment of compensation under the 5.754(b), 5.754(c) ...... 3.715. Radiation Exposure Compensation Act of 5.754(d) ...... 3.500(x). 1990 on payment of certain VA benefits. 5.755 ...... Reserved. Rules Concerning the Receipt of Multiple VA Benefits 5.756 ...... 3.700 introductory text ...... Prohibition against concurrent receipt of certain VA benefits based on the service of the same veteran. 5.757(a) ...... 3.701(a) (first and second sentences). 5.757(b) ...... 3.701(a) (first and second sentences) ...... Elections between VA disability compensation 5.757(c) ...... 3.701(a). and VA pension. 5.757(d) ...... 3.701(a) (first and third sentences). 5.757(e)(1) ...... 3.701(a) (first and fourth sentences). 5.757(e)(2) ...... New. 5.757(e)(3) ...... 3.701(a) (fifth sentence). 5.757(f) ...... 3.701(c). 5.758(a) ...... 3.711 (first sentence) ...... Electing Improved Pension instead of Old-Law 5.758(b) ...... 3.711 (last sentence). Pension or Section 306 Pension. 5.758(c) ...... 3.960(a). 5.758(d) ...... 3.701(a) (fifth sentence). 5.759(a)(1)(i) ...... 3.702(a) ...... Election between death compensation and 5.759(a)(1)(ii) ...... 3.702(d)(1). dependency and indemnity compensation. 5.759(a)(2) ...... 3.702(a). 5.759(b) ...... 3.702(c). 5.760 ...... 3.702(d)(2) ...... Electing Improved Death Pension instead of dependency and indemnity compensation. 5.761 ...... 3.658(b), 3.700(b)(1) ...... Concurrent receipt of disability compensation, pension, or death benefits by a surviving spouse based on the service of more than one veteran. 5.762(a), 5.762(b) ...... 3.700(b)(2) ...... Payment of multiple benefits to a surviving 5.762(c) ...... 3.503(a)(7), 3.659, 3.703. child based on the service of more than one veteran. 5.763 ...... 3.704(a) ...... Payment of multiple benefits to more than one child based on the service of the same veteran. 5.764(a) ...... 3.503(a)(8), 3.659(b), 3.703(c), 3.707(a) ...... Payment of Survivors’ and Dependents’ Edu- 5.764(b)–(d) ...... 3.707. cational Assistance and VA death pension or dependency and indemnity compensation for the same period. 5.765 ...... 3.700(b)(3) ...... Payment of compensation to a parent based on the service or death of multiple veterans. 5.766–5.769 ...... Reserved.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

Subpart M—Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries

Determining Eligibility for Apportionments 5.770 ...... 3.450 (except 3.450(f), (g)) ...... Apportionment claims. 5.771 ...... 3.451 ...... Special apportionments. 5.772(a) ...... 3.452(a) ...... Veteran’s benefits apportionable. 5.772(b) ...... 3.452(b). 5.772(c) ...... 3.452(c), 3.454(b) (except (b)(2)). 5.772(d) ...... 3.452(d). 5.773 ...... 3.453 ...... Veterans disability compensation. 5.774 (except 5.774(e)(2)) ...... 3.458 ...... Benefits not apportionable. 5.774(e)(2) ...... 3.503(a)(2). 5.775–5.779 ...... Reserved. 5.780(a) ...... 3.450(a)(1)(ii) ...... Eligibility for apportionment of pension. 5.780(b)(1) ...... 3.460(b). 5.780(b)(2) ...... 3.460(c). 5.781(a) ...... 3.461(a) ...... Eligibility for apportionment of a surviving 5.781(b) ...... 3.461(b)(1). spouse’s dependency and indemnity compensation. 5.782(a) ...... 3.400(e)(1), 3.400(e) introductory text ...... Effective date of apportionment grant or in- 5.782(b)(1)...... New. crease. 5.782(b)(2) ...... 3.400(e)(2). 5.782(b)(3) ...... 3.665(f). 5.782(b)(4) ...... 3.500(d)(1). 5.783(a) ...... 3.500(g)(1), 3.500(n)(1) ...... Effective date of apportionment reduction or 5.783(b)(1) ...... 3.500(g)(2)(ii), 3.500(n)(2)(ii). discontinuance. 5.783(b)(2) ...... New. 5.783(b)(3), 5.783(b)(4) ...... 3.1000(b)(2). 5.784(a) ...... 3.1000(b)(1) ...... Special rules for apportioned benefits on 5.784(b)(1) ...... 3.1000(b)(3). death of beneficiary or apportionee. 5.784(b)(2) ...... 5.785–5.789 ...... Reserved. Incompetency and Payments to Fiduciaries and Minors 5.790(a) ...... 3.353(a) ...... Determinations of incompetency and com- 5.790(b) ...... 3.353(b). petency. 5.790(c) ...... 3.353(c). 5.790(d) ...... 3.353(d). 5.790(e) ...... 3.353(e). 5.790(f)(1) ...... 3.400(x). 5.790(f)(2) ...... 3.400(y). 5.791(a) ...... 3.850(a) ...... General fiduciary payments. 5.791(b) ...... 3.850(c). 5.791(c) ...... 3.580(b). 5.791(d) ...... 3.850(d). 5.791(e) ...... 3.400(n), 3.500(m). 5.792(a) ...... 3.852(a) ...... Institutional awards. 5.792(b) ...... 3.852(b), 3.852(d) (first sentence). 5.792(c) ...... 3.852(d) (second sentence). 5.792(d) ...... 3.852(c). 5.792(e) ...... 3.401(d). 5.792(f) ...... 3.501(j). 5.793(a) ...... 3.403(a)(2), 3.854 ...... Limitation on payments for a child. 5.793(b) ...... 3.403(a)(2). 5.794 ...... 3.855 ...... Beneficiary rated or reported incompetent. 5.795 ...... 3.856 ...... Change of name of fiduciary. 5.796 ...... 3.857 ...... Child’s benefits to a fiduciary of an incompetent surviving spouse. 5.797 ...... 3.355 ...... Testamentary capacity for VA insurance purposes. 5.798 ...... 3.853(c) ...... Payment of disability compensation previously not paid because an incompetent veteran’s estate exceeded $25,000. 5.799–5.809 ...... Reserved.

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APPENDIX B TO PART 5—DERIVATION OF PART 5 PROVISIONS—Continued

Part 5 Provision Part 3 Provision Part 5 Section Title

Payments to Incarcerated Beneficiaries

5.810(a) ...... 3.665(b) ...... Incarcerated beneficiaries—general provisions 5.810(b) ...... New. and definitions. 5.810(c) ...... 3.665(a), 3.665(g), 3.666 introductory text. 5.810(d) ...... New. 5.810(e) ...... 3.665(a), 3.666 (introduction) 5.810(f) ...... 3.665(a), 3.666 introductory text. 5.811(a) ...... 3.665(a), 3.665(c) ...... Limitation on disability compensation during 5.811(b) ...... 3.665(j)(3)(ii), 3.665(k). incarceration. 5.811(c) ...... 3.665(d)(1), 3.665(d)(2), 3.665(j). 5.812(a) ...... 3.665(a), 3.665(c) ...... Limitation on dependency and indemnity com- 5.812(b) ...... 3.665(d)(3). pensation during incarceration. 5.812(c) ...... 3.665(l). 5.812(d) ...... 3.665(k). 5.813(a) ...... 3.666 introductory text ...... Discontinuance of pension during incarcer- 5.813(b) ...... 3.666(d). ation. 5.814(a)(1) ...... 3.665(a) ...... Apportionment when a primary beneficiary is 5.814(a)(2) ...... 3.665(h). incarcerated. 5.814(b) ...... 3.665(e). 5.814(c) ...... 3.666(a)(1)–(3). 5.814(d) ...... 3.666(b)(1), 3.666(b)(2), 3.666(b)(4). 5.814(e) ...... 3.665(f), 3.666(a)(4), 3.666(b)(3). 5.815(a) ...... 3.665(i) ...... Resumption of disability compensation or de- 5.815(b) ...... 3.665(i)(1), 3.665(i)(3). pendency and indemnity compensation 5.815(c) ...... 3.665(i)(2), 3.665(i)(3). upon a beneficiary’s release from incarcer- 5.815(d) ...... 3.665(m). ation. 5.816 ...... 3.666(c) ...... Resumption of pension upon a beneficiary’s release from incarceration. 5.817(a) ...... 3.665(n)(1), 3.666(e)(1) ...... Fugitive felons. 5.817(b) ...... 3.665(n)(2), 3.665(n)(3), 3.666(e)(2), 3.666(e)(3). 5.818 ...... Reserved. 5.819 ...... Reserved.

[FR Doc. 2013–23895 Filed 11–26–13; 8:45 am] BILLING CODE 8320–01–P

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