38 CFR Part 3 — Adjudication

PART 3—ADJUDICATION Editorial Note: Nomenclature changes to part 3 appear at 61 FR 7216, Feb. 27, 1996; 62 FR 35970, July 3, 1997; 62 FR 47532, Sept. 9, 1997; and 67 FR 46868, July 17, 2002. 91 FR 2713, Jan. 22, 2026 Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation Authority: 38 U.S.C. 501(a), unless otherwise noted. General § 3.1 Definitions. (a) Armed Forces (b) Reserve component (c) Reserves (d) Veteran (1) For compensation and dependency and indemnity compensation the term veteran (2) For survivors pension the term veteran (Authority: 38 U.S.C. 501) (e) Veteran of any war (f) Period of war (g) Secretary concerned (1) The Secretary of the Army, with respect to matters concerning the Army; (2) The Secretary of the Navy, with respect to matters concerning the Navy or the Marine Corps; (3) The Secretary of the Air Force, with respect to matters concerning the Air Force or the Space Force; (4) The Secretary of Homeland Security, with respect to matters concerning the Coast Guard; (5) The Secretary of Health and Human Services, with respect to matters concerning the Public Health Service; and (6) The Secretary of Commerce, with respect to matters concerning the Coast and Geodetic Survey, the Environmental Science Services Administration, and the National Oceanic and Atmospheric Administration. (h) Discharge or release (i) State (j) Marriage (Authority: 38 U.S.C. 103(c)) (k) Service-connected (l) Nonservice-connected (m) In line of duty (1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty. (2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge. (3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. (Authority: 38 U.S.C. 105) Note: See § 3.1(y)(2)(iii) for applicability of in line of duty (n) Willful misconduct (1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. (2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. (3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. (See §§ 3.301, 3.302.) (o) Political subdivision of the United States (p) Claim (1) Initial claim. (i) A new claim requesting service connection for a disability or grant of a new benefit, and (ii) A claim for increase in a disability evaluation rating or rate of a benefit paid based on a change or worsening in condition or circumstance since the last decision issued by VA for the benefit. (2) Supplemental claim. (q) Notice (r) Date of receipt Federal Register, (Authority: 38 U.S.C. 501(a), 512(a), 5110) (s) On the borders thereof (Authority: 38 U.S.C. 101(30)) (t) In the waters adjacent thereto (Authority: 38 U.S.C. 101(30) (u) Section 306 pension (v) Old-Law pension i.e. (w) Improved pension (x) Service pension (Authority: 38 U.S.C. 1512, 1536) (y) Former prisoner of war. former prisoner of war (1) Decisions based on service department findings. (2) Other decisions. (i) Circumstances of detention or internment. (ii) Reason for detainment or internment. (3) Central Office approval. (4) In line of duty. (5) Hostile force. hostile force (Authority: 38 U.S.C. 101(32)) (z) Nursing home (1) Any extended care facility which is licensed by a State to provide skilled or intermediate-level nursing care, (2) A nursing home care unit in a State veterans' home which is approved for payment under 38 U.S.C. 1742, or (3) A Department of Veterans Affairs Nursing Home Care Unit. (aa) Fraud: (1) As used in 38 U.S.C. 103 and implementing regulations, fraud means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining, or assisting an individual to obtain an annulment or divorce, with knowledge that the misrepresentation or failure to disclose may result in the erroneous granting of an annulment or divorce; and (Authority: 38 U.S.C. 501) (2) As used in 38 U.S.C. 110 and 1159 and implementing regulations, fraud means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining, or assisting an individual to obtain or retain, eligibility for Department of Veterans Affairs benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits. (Authority: 38 U.S.C. 501) Cross References: Pension. See § 3.3. Compensation. See § 3.4. Dependency and indemnity compensation. See § 3.5. Preservation of disability ratings. See § 3.951. Service-connection. See § 3.957. [26 FR 1563, Feb. 24, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 3.2 Periods of war. This section sets forth the beginning and ending dates of each war period beginning with the Indian wars. Note that the term period of war (a) Indian wars. (b) Spanish-American War. (c) World War I. (d) World War II. (e) Korean conflict. (f) Vietnam era. (Authority: 38 U.S.C. 101(29)) (g) Future dates. (Authority: 38 U.S.C. 101) (h) Mexican border period. (Authority: 38 U.S.C. 101(30)) (i) Persian Gulf War. (Authority: 38 U.S.C. 101(33)) [26 FR 1563, Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967; 36 FR 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26, 1975; 44 FR 45931, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR 35422, July 1, 1997; 87 FR 68363, Nov. 15, 2022] § 3.3 Pension. (a) Pension for veterans Service pension; Spanish-American War. (i) Had 70 (or 90) days or more active service during the Spanish-American War; or (ii) Was discharged or released from such service for a disability adjudged service connected without benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. (Authority: 38 U.S.C. 1512) (2) Section 306 pension. (i) Served 90 days or more in either the Mexican border period, World War I, World War II, the Korean conflict, or the Vietnam era, or served an aggregate of 90 days or more in separate periods of service during the same or during different war periods, including service during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L. 90-77, 81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or (ii) Served continuously for a period of 90 consecutive days or more and such period ended during the Mexican border period or World War I, or began or ended during World War II, the Korean conflict or the Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L. 88-664, 78 Stat. 1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub. L. 92-198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204, 91 Stat. 1455); or (iii) Was discharged or released from such wartime service, before having served 90 days, for a disability adjudged service connected without the benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; and (iv) Is permanently and totally disabled ( a b (v)( a b c (vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in effect on December 31, 1978, and all other provisions of title 38, United States Code, in effect on December 31, 1978, applicable to section 306 pension. Note: The pension provisions of title 38 U.S.C., as in effect on December 31, 1978, are available in any VA regional office. (3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). (i) Served in the active military, naval, air, or space service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or (ii) Served in the active military, naval, air, or space service during a period of war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability (38 U.S.C. 1521(j)); or (iii) Served in the active military, naval, air, or space service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or (iv) Served in the active military, naval air, or space service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)); and (v) Meets the net worth requirements under § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in § 3.23; and (vi)(A) Is age 65 or older; or (B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following: ( 1 ( 2 ( 3 ( 4 ( i ( ii (Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522) (b) Pension for survivors Indian warsurvivors pension. (2) Spanish-American War survivors pension. (i) Had 90 days or more active service during the Spanish-American War; or (ii) Was discharged or released from such service for a disability service-connected without benefit of presumptive provisions of law, or at time of discharge had such a service-connected disability, as shown by official service records, which in medical judgment would have justified a discharge for disability. (Authority: 38 U.S.C. 1536, 1537) (3) Section 306 survivors pension. (i) The veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(2)(i), (ii), or (iii) of this section; or (ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for service-connected disability based on wartime service; and (iii) The surviving spouse or child (A) was in receipt of section 306 pension on December 31, 1978, or (B) had a claim for pension pending on that date, or (C) filed a claim for pension after that date but within 1 year after the veteran's death, if the veteran died before January 1, 1979; and (iv) The surviving spouse or child meets the income and net worth requirements of 38 U.S.C. 1541, 1542 or 1543 as in effect on December 31, 1978, and all other provisions of title 38, United States Code in effect on December 31, 1978, applicable to section 306 pension. Note: The pension provisions of title 38, United States Code, as in effect on December 31, 1978, are available in any VA regional office.) (4) Improved survivors pension, Public Law 95-588. (i) The veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(3)(i), (ii), (iii), or (iv) of this section (38 U.S.C. 1541(a)); or (ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for a service-connected disability based on service during a period of war. (The qualifying periods of war are specified in paragraph (a)(3) of this section.) (38 U.S.C. 1541(a)); and (iii) The surviving spouse or child meets the net worth requirements of § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in §§ 3.23 and 3.24. (Authority: 38 U.S.C. 1541 and 1542) Cross References: Section 306 pension. See § 3.1(u). Improved pension. See § 3.1(w). Improved pension rates. See § 3.23. Improved pension rates; surviving children. See § 3.24. Frequency of payment of improved pension. See § 3.30. Relationship of net worth to pension entitlement. See § 3.274. [44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34541, June 10, 2003; 87 FR 26125, May 3, 2022] § 3.4 Compensation. (a) Compensation. (Authority: 38 U.S.C. 101(2), (13)) (b) Disability compensation. (Authority: 38 U.S.C. 1110, 1131) (2) An additional amount of compensation may be payable for a spouse, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 30 per centum or more disabling. (Authority: 38 U.S.C. 1115) (c) Death compensation. (1) The veteran died before January 1, 1957; or (2) The veteran died on or after May 1, 1957, and before January 1, 1972, if at the time of death a policy of United States Government Life Insurance or National Service Life Insurance was in effect under waiver of premiums under 38 U.S.C. 1924 unless the waiver was granted under the first proviso of section 622(a) of the National Service Life Insurance Act of 1940, and the veteran died before return to military jurisdiction or within 120 days thereafter. (See § 3.5(d) as to Public Health Service.) (Authority: 38 U.S.C. 1121, 1141) [26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979] § 3.5 Dependency and indemnity compensation. (a) Dependency and indemnity compensation. (1) Because of a service-connected death occurring after December 31, 1956, or (2) Pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. (Authority: 38 U.S.C. 101 (14)) (b) Entitlement. (1) Death occurred on or after January 1, 1957, except in the situation specified in § 3.4(c)(2); or (2) Death occurred prior to January 1, 1957, and the claimant was receiving or eligible to receive death compensation on December 31, 1956 (or, as to a parent, would have been eligible except for income), under laws in effect on that date or who subsequently becomes eligible by reason of a death which occurred prior to January 1, 1957; or (3) Death occurred on or after May 1, 1957, and before January 1, 1972, and the claimant had been ineligible to receive dependency and indemnity compensation because of the exception in subparagraph (1) of this paragraph. In such case dependency and indemnity compensation is payable upon election. (38 U.S.C. 1310, 1316, 1317, Public Law 92-197, 85 Stat. 660) (c) Exclusiveness of remedy. (2) A surviving spouse who, but for the surviving spouse's eligibility for dependency and indemnity compensation, would be eligible to receive survivors pension at the rate provided for in 38 U.S.C. 5503(d) will receive survivors pension instead of such compensation. (Authority: 38 U.S.C. 1317) (d) Group life insurance. (Authority: Sec. 501(c)(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as amended by Sec. 13(u), Pub. L. 85-857; (72 Stat. 1266); Sec. 5, Pub. L. 91-621 (84 Stat. 1863)) [29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR 72220, Dec. 2, 2005; 73 FR 23356, Apr. 30, 2008; 91 FR 2713, Jan. 22, 2026] § 3.6 Duty periods. (a) Active military, naval, air, or space service. (Authority: 38 U.S.C. 101(24)) (b) Active duty. (1) Full-time duty in the Armed Forces, other than active duty for training; (2) Full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service: (i) On or after July 29, 1945, or (ii) Before that date under circumstances affording entitlement to full military benefits, (iii) At any time, for the purposes of dependency and indemnity compensation. (3) Full-time duty as a commissioned officer of the Coast and Geodetic Survey or of its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration: (i) On or after July 29, 1945, or (ii) Before that date: ( a ( b ( c (iii) At any time, for the purposes of dependency and indemnity compensation. (4) Service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy; (5) Attendance at the preparatory schools of the United States Air Force Academy, the United States Military Academy, or the United States Naval Academy for enlisted active-duty members who are reassigned to a preparatory school without a release from active duty, and for other individuals who have a commitment to active duty in the Armed Forces that would be binding upon disenrollment from the preparatory school; (6) Authorized travel to or from such duty or service; and (7) A person discharged or released from a period of active duty, shall be deemed to have continued on active duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to have been required for him or her to proceed to his or her home by the most direct route, and, in all instances, until midnight of the date of such discharge or release. (Authority: 38 U.S.C. 106(c)) (c) Active duty for training. (2) Full-time duty for training purposes performed as a commissioned officer of the Reserve Corps of the Public Health Service: (i) On or after July 29, 1945, or (ii) Before that date under circumstances affording entitlement to full military benefits, (iii) At any time, for the purposes of dependency and indemnity compensation: (3) Full-time duty performed by members of the National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law or full-time duty by such members while participating in the reenactment of the Battle of First Manassas in July 1961; (4) Duty performed by a member of a Senior Reserve Officers' Training Corps program when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 U.S.C. (i) The requirements of this paragraph are effective— (A) On or after October 1, 1982, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated after September 30, 1982, and (B) October 1, 1983, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982. (ii) Effective on or after October 1, 1988, such duty must be prerequisite to the member being commissioned and must be for a period of at least four continuous weeks. (Authority: 38 U.S.C. 101(22)(D) as amended by Pub. L. 100-456) (5) Attendance at the preparatory schools of the United States Air Force Academy, the United States Military Academy, or the United States Naval Academy by an individual who enters the preparatory school directly from the Reserves, National Guard or civilian life, unless the individual has a commitment to service on active duty which would be binding upon disenrollment from the preparatory school. (6) Authorized travel to or from such duty. (Authority: 38 U.S.C. 101(22)) The term does not include duty performed as a temporary member of the Coast Guard Reserve. (d) Inactive duty training. (2) Special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned; and (3) Training (other than active duty for training) by a member of, or applicant for membership (as defined in 5 U.S.C. 8140(g)) in, the Senior Reserve Officers' Training Corps prescribed under chapter 103 of title 10 U.S.C. (4) Duty (other than full-time duty) performed by a member of the National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. The term inactive duty training (i) Work or study performed in connection with correspondence courses, (ii) Attendance at an educational institution in an inactive status, or (iii) Duty performed as a temporary member of the Coast Guard Reserve. (Authority: 38 U.S.C. 101(23)) (e) Travel status—training duty (disability or death from injury or covered disease). (1) Who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and (2) Who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such active duty for training or inactive duty training shall be deemed to have been on active duty for training or inactive duty training, as the case may be. The Department of Veterans Affairs will determine whether such individual was so authorized or required to perform such duty, and whether the individual was disabled or died from an injury or covered disease so incurred. In making such determinations, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant. (3) For purposes of this section, the term covered disease (i) An acute myocardial infarction. (ii) A cardiac arrest. (iii) A cerebrovascular accident. (Authority: 38 U.S.C. 106(d)) [26 FR 1564, Feb. 24, 1961, as amended at 26 FR 6767, July 28, 1961; 27 FR 4023, Apr. 27, 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20, 1971; 41 FR 26881, June 29, 1976; 49 FR 47003, Nov. 30, 1984; 54 FR 51200, Dec. 13, 1989; 55 FR 23931, June 13, 1990; 60 FR 57179, Nov. 14, 1995; 61 FR 11731, Mar. 22, 1996; 66 FR 48560, Sept. 21, 2001; 67 FR 49585, July 31, 2002; 87 FR 26125, May 3, 2022] § 3.7 Individuals and groups considered to have performed active military, naval, air, or space service. The following individuals and groups are considered to have performed active military, naval, air, or space service: (a) Aerial transportation of mail Pub. L. 140, 73d Congress (b) Aliens. (Authority: 38 U.S.C. 5303(c)) (c) Army field clerks. (d) Army Nurse Corps, Navy Nurse Corps, and female dietetic and physical therapy personnel. (2) Dietetic and physical therapy (female) personnel, excluding students and apprentices, appointed with relative rank on or after December 22, 1942, or commissioned on or after June 22, 1944. (e) Aviation camps. (f) Cadets and midshipmen. (g) Coast and Geodetic Survey, and its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration. (h) Coast Guard. (i) Contract surgeons. (j) Field clerks, Quartermaster Corps. (k) Lighthouse service personnel. (l) Male nurses. (m) National Guard. (n) Persons heretofore having a pensionable or compensable status. (Authority: 38 U.S.C. 1152, 1504) (o) Persons ordered to service. (i) Applied for enlistment or enrollment in the active military, naval, air, or space service and who is provisionally accepted and directed, or ordered, to report to a place for final acceptance into the service, or (ii) Been selected or drafted for such service, and has reported according to a call from the person's local draft board and before final rejection, or (iii) Been called into Federal service as a member of the National Guard, but has not been enrolled for Federal service, and (iv) Suffered injury or disease in line of duty while going to, or coming from, or at such place for final acceptance or entry upon active duty, is considered to have been on active duty and therefore to have incurred such disability in active service. (2) The injury or disease must be due to some factor relating to compliance with proper orders. Draftees and selectees are included when reporting for preinduction examination or for final induction on active duty. Such persons are not included for injury or disease suffered during the period of inactive duty, or period of waiting, after a final physical examination and prior to beginning the trip to report for induction. Members of the National Guard are included when reporting to a designated rendezvous. (p) Philippine Scouts and others. (q) Public Health Service. (r) Reserves. (s) Revenue Cutter Service. (t) Training camps. (u) Women's Army Corps (WAC). (v) Women's Reserve of Navy, Marine Corps, and Coast Guard. (w) Russian Railway Service Corps. (x) Active military service certified as such under section 401 of Pub. L. 95-202. (1) Women's Air Forces Service Pilots (WASP). (2) Signal Corps Female Telephone Operators Unit of World War I. (3) Engineer Field Clerks (WWI). (4) Women's Army Auxiliary Corps (WAAC). (5) Quartermaster Corps Female Clerical Employees serving with the AEF (American Expeditionary Forces) in World War I. (6) Civilian Employees of Pacific Naval Air Bases Who Actively Participated in Defense of Wake Island During World War II. (7) Reconstruction Aides and Dietitians in World War I. (8) Male Civilian Ferry Pilots. (9) Wake Island Defenders from Guam. (10) Civilian Personnel Assigned to the Secret Intelligence Element of the OSS. (11) Guam Combat Patrol. (12) Quartermaster Corps Keswick (13) U.S. Civilian Volunteers Who Actively Participated in the Defense of Bataan. (14) United States Merchant Seamen Who Served on Blockships in Support of Operation Mulberry. (15) American Merchant Marine in Oceangoing Service during the Period of Armed Conflict, December 7, 1941, to August 15, 1945. (16) Civilian Navy IFF Technicians Who Served in the Combat Areas of the Pacific during World War II (December 7, 1941 to August 15, 1945). As used in the official name of this group, the acronym IFF (17) U.S. Civilians of the American Field Service (AFS) Who Served Overseas Operationally in World War I during the Period August 31, 1917 to January 1, 1918. (18) U.S. Civilians of the American Field Service (AFS) Who Served Overseas Under U.S. Armies and U.S. Army Groups in World War II during the Period December 7, 1941 through May 8, 1945. (19) U.S. Civilian Employees of American Airlines Who Served Overseas as a Result of American Airlines' Contract with the Air Transport Command During the Period December 14, 1941 through August 14, 1945. (20) Civilian Crewmen of United States Coast and Geodetic Survey (USCGS) Vessels Who Performed Their Service in Areas of Immediate Military Hazard While Conducting Cooperative Operations with and for the United States Armed Forces Within a Time Frame of December 7, 1941, to August 15, 1945 on a qualifying USCGS vessel. Qualifying USCGS vessels are the Derickson, Explorer, Gilbert, Hilgard, E. Lester Jones, Lydonia, Patton, Surveyor, Wainwright, Westdahl, Oceanographer, Hydrographer, and Pathfinder. (21) Honorably Discharged Members of the American Volunteer Group (Flying Tigers) Who Served During the Period December 7, 1941 to July 18, 1942. (22) U.S. Civilian Flight Crew and Aviation Ground Support Employees of United Air Lines (UAL), Who Served Overseas as a Result of UAL's Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945. (23) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of TWA's Contract with the Air Transport Command During the Period December 14, 1941, through August 14, 1945. The “Flight Crew” includes pursers. (24) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Consolidated Vultree Aircraft Corporation (Consairway Division) Who Served Overseas as a Result of a Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945. (25) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Pan American World Airways and Its Subsidiaries and Affiliates, Who Served Overseas as a Result of Pan American's Contract With the Air Transport Command and Naval Air Transport Service During the Period December 14, 1941 through August 14, 1945. (26) Honorably Discharged Members of the American Volunteer Guard, Eritrea Service Command During the Period June 21, 1942 to March 31, 1943. (27) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Northwest Airlines, Who Served Overseas as a Result of Northwest Airline's Contract with the Air Transport Command during the Period December 14, 1941 through August 14, 1945. (28) U.S. Civilian Female Employees of the U.S. Army Nurse Corps While Serving in the Defense of Bataan and Corregidor During the Period January 2, 1942 to February 3, 1945. (29) U.S. Flight Crew and Aviation Ground Support Employees of Northeast Airlines Atlantic Division, Who Served Overseas as a Result of Northeast Airlines' Contract With the Air Transport Command During the Period December 7, 1941, Through August 14, 1945. (30) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Braniff Airways, Who Served Overseas in the North Atlantic or Under the Jurisdiction of the North Atlantic Wing, Air Transport Command (ATC), as a Result of a Contract With the ATC During the Period February 26, 1942, Through August 14, 1945. (31) The approximately 50 Chamorro and Carolinian former native policemen who received military training in the Donnal area of central Saipan and were placed under the command of Lt. Casino of the 6th Provisional Military Police Battalion to accompany United States Marines on active, combat-patrol activity from August 19, 1945, to September 2, 1945. (32) Three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz, who assisted the United States Marines in the offensive operations against the Japanese on the Northern Mariana Islands from June 19, 1944, through September 2, 1945. (33) The Operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management, which served overseas with the U.S. Army Air Corps from December 7, 1941, through August 15, 1945. (Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1449) (y) Alaska Territorial Guard: (Authority: 38 U.S.C. 106(f)) Cross Reference: Office of Workers' Compensation Programs. See § 3.708. [26 FR 1565, Feb. 24, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 3.10 Dependency and indemnity compensation rate for a surviving spouse. (a) General determination of rate. (b) Basic monthly rate. (c) Section 1311(a)(2) increase. (d) Alternative basic monthly rate for death occurring prior to January 1, 1993. (e) Additional increases. (1) Increase for children. (2) Increase for regular aid and attendance. (3) Increase for housebound status. (4) For a two-year period beginning on the date entitlement to dependency and indemnity compensation commenced, the dependency and indemnity compensation paid monthly to a surviving spouse with one or more children below the age of 18 shall be increased by the amount set forth in 38 U.S.C. 1311(f), regardless of the number of such children. The dependency and indemnity compensation payable under this paragraph is in addition to any other dependency and indemnity compensation payable. The increase in dependency and indemnity compensation of a surviving spouse under this paragraph shall cease beginning with the first month commencing after the month in which all children of the surviving spouse have attained the age of 18. (f) Criteria governing section 1311(a)(2) increase. (1) Marriage requirement. (2) Determination of total disability. (3) Definition of “entitled to receive”. (i) The veteran would have received total disability compensation for the period specified in paragraph (c) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (ii) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the period specified in paragraph (c) of this section; or (iii) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (c) of this section, but was not receiving compensation because: (A) VA was paying the compensation to the veteran's dependents; (B) VA was withholding the compensation under the authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (C) The veteran had not waived retired or retirement pay in order to receive compensation; (D) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (E) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (F) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. (Authority: 38 U.S.C. 501(a), 1311, 1314, and 1321) [70 FR 72220, Dec. 2, 2005, as amended at 71 FR 44918, Aug. 8, 2006; 77 FR 40525, July 10, 2012; 80 FR 18117, Apr. 3, 2015] § 3.11 Homicide. Any person who has intentionally and wrongfully caused the death of another person is not entitled to pension, compensation, or dependency and indemnity compensation or increased pension, compensation, or dependency and indemnity compensation by reason of such death. For the purpose of this section the term dependency and indemnity compensation [44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989] § 3.12 Benefit eligibility based on character of discharge. (a) General rule. (b) Insanity exception. (c) Statutory bars to benefits. (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful orders of competent military authorities. (2) By reason of the sentence of a general court-martial. (3) Resignation by an officer for the good of the service. (4) As a deserter. (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release. See § 3.7(b). (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days (38 U.S.C. 5303(a)). (i) Compelling circumstances exception. (ii) Applicability prior to October 8, 1977. Basic eligibility (d) Regulatory bars to benefits. (1) Compelling circumstances exception is not applicable for: (i) Discharge in lieu of trial. (ii) Mutiny or espionage. (2) Compelling circumstances exception is applicable for: (i) An offense involving moral turpitude. (ii) Willful and persistent misconduct. (e) Compelling circumstances exception. (1) Length and character of service exclusive of the period of prolonged AWOL or misconduct. (2) Reasons for prolonged AWOL or misconduct. (i) Mental or cognitive impairment at the time of the prolonged AWOL or misconduct, to include but not limited to a clinical diagnosis of (or evidence that could later be medically determined to demonstrate existence of) posttraumatic stress disorder (PTSD), depression, bipolar disorder, schizophrenia, substance use disorder, attention deficit hyperactivity disorder (ADHD), impulsive behavior, or cognitive disabilities. (ii) Physical health, to include physical trauma and any side effects of medication. (iii) Combat-related or overseas-related hardship. (iv) Sexual abuse/assault. (v) Duress, coercion, or desperation. (vi) Family obligations or comparable obligations to third parties. (vii) Age, education, cultural background, and judgmental maturity. (3) Whether a valid legal defense would have precluded a conviction for AWOL or misconduct under the Uniform Code of Military Justice. For purposes of this paragraph (e)(3), the defense must go directly to the substantive issue of absence or misconduct rather than to procedures, technicalities, or formalities. (f) Board of corrections upgrade. (g) Discharge review board upgrades prior to October 8, 1977. (h) Discharge review board upgrades on or after October 8, 1977. (1) The discharge is upgraded as a result of an individual case review; (2) The discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval, air, or space service under conditions other than honorable; and (3) Such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge. (i) Special review board upgrades. (1) The President's directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or (2) The Department of Defense's special discharge review program effective April 5, 1977; or (3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. (j) Overpayments after October 8, 1977, due to discharge review board upgrades. (k) Overpayments after October 8, 1977, based on application of AWOL statutory bar. (l) Uncharacterized separations. (1) Entry level separation. (2) Void enlistment or induction. (3) Dropped from the rolls. (Authority: 38 U.S.C. 101, 501, and 5303) Cross References: Validity of enlistments. See § 3.14. Revision of decisions. See § 3.105. Effective dates. See § 3.400(g). Minimum active-duty service requirement. See § 3.12a. [28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43 FR 15153, Apr. 11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2, 1984; 62 FR 14823, Mar. 28, 1997; 87 FR 26125, May 3, 2022; 89 FR 32372, Apr. 26, 2024] § 3.12a Minimum active-duty service requirement. (a) Definitions. minimum period of active duty (i) Twenty-four months of continuous active duty. Non-duty periods that are excludable in determining the Department of Veterans Affairs benefit entitlement (e.g., see § 3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served. (ii) The full period for which a person was called or ordered to active duty. (2) The term benefit (b) Effect on Department of Veterans Affairs benefits. (c) Persons included. (1) A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980 (a person who signed a delayed-entry contract with one of the service branches prior to September 8, 1980, and under that contract was assigned to a reserve component until entering on active duty after September 7, 1980, shall be considered to have enlisted on the date the person entered on active duty); and (2) Any other person (officer as well as enlisted) who enters on active duty after October 16, 1981 and who has not previously completed a continuous period of active duty of at least 24 months or been discharged or released from active duty under 10 U.S.C. 1171 (early out). (d) Exclusions. (1) To a person who is discharged or released under 10 U.S.C. 1171 or 1173 (early out or hardship discharge). (2) To a person who is discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. (3) To a person with a compensable service-connected disability. (4) To the provision of a benefit for or in connection with a service-connected disability, condition, or death. (5) To benefits under chapter 19 of title 38, United States Code. (e) Dependent or survivor benefits General. (2) Exceptions. [47 FR 24549, June 7, 1982] § 3.13 Discharge to change status. (a) A discharge to accept appointment as a commissioned or warrant officer, or to change from a Reserve or Regular commission to accept a commission in the other component, or to reenlist is a conditional discharge if it was issued during one of the following periods: (1) World War I; prior to November 11, 1918. As to reenlistments, this subparagraph applies only to Army and National Guard. No involuntary extension or other restrictions existed on Navy enlistments. (2) World War II, the Korean conflict or the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect. (3) Peacetime service; prior to the date the person was eligible for an unconditional discharge. (b) Except as provided in paragraph (c) of this section, the entire period of service under the circumstances stated in paragraph (a) of this section constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service except that, for survivors pension purposes, § 3.3(b)(3) and (4) is controlling as to basic entitlement when the conditions prescribed therein are met. (c) Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval, air, or space service when the following conditions are met: (1) The person served in the active military, naval, air, or space service for the period of time the person was obligated to serve at the time of entry into service; (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment. [26 FR 1566, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962; 32 FR 13224, Sept. 19, 1967; 43 FR 15154, Apr. 11, 1978; 46 FR 23926, Apr. 29, 1981; 87 FR 26125, May 3, 2022] § 3.14 Validity of enlistments. Service is valid unless the enlistment is voided by the service department. (a) Enlistment not prohibited by statute. (b) Statutory prohibition. (c) Misrepresentation of age. (d) Honorable discharges. [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962] § 3.15 Computation of service. For nonservice-connected or service-connected benefits, active service is countable exclusive of time spent on an industrial, agricultural, or indefinite furlough, time lost on absence without leave (without pay), under arrest (without acquittal), in desertion, while undergoing sentence of court-martial or a period following release from active duty under the circumstances outlined in § 3.41. In claims based on Spanish-American War service, leave authorized under General Order No. 130, War Department, is included. Cross Reference: Duty periods. See § 3.6(b)(6). [40 FR 16064, Apr. 9, 1975] § 3.16 Service pension. In computing the 70 or 90 days required under § 3.3(a) active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a war period may be added together to meet the requirement for length of service. [41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979] § 3.17 Disability and survivors pension; Mexican border period and later war periods. In computing the 90 days' service required for pension entitlement (see § 3.3), there will be included active service which began before and extended into the Mexican border period or ended during World War I, or began or ended during World War II, the Korean conflict, the Vietnam era or the Persian Gulf War, if such service was continuous. Service during different war periods may be combined with service during any other war period to meet the 90 days' service requirement. (Authority: 38 U.S.C. 1521) [37 FR 6676, Apr. 1, 1972, as amended at 44 FR 45932, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991] §§ 3.18-3.19 [Reserved] § 3.20 Surviving spouse's benefit for month of veteran's death. (a) Where the veteran died on or after December 1, 1962, and before October 1, 1982, the rate of survivors pension or dependency and indemnity compensation otherwise payable for the surviving spouse for the month in which the death occurred shall be not less than the amount of pension or compensation which would have been payable to or for the veteran for that month but for his or her death. (Authority: 38 U.S.C. 5310) (b) Where the veteran dies on or after October 1, 1982, the surviving spouse may be paid survivors pension or dependency and indemnity compensation for the month in which the veteran died at a rate equal to the amount of compensation or pension which would have been payable to the veteran for that month had death not occurred, but only if such rate is equal to or greater than the monthly rate of survivors pensionor dependency and indemnity compensation to which the surviving spouse is entitled. Otherwise, no payment of survivors pension or dependency and indemnity compensation may be made for the month in which the veteran died. (Authority: 38 U.S.C. 5111(c)) (c)(1) Where a veteran receiving compensation or pension dies after December 31, 1996, the surviving spouse, if not entitled to death compensation, dependency and indemnity compensation, or survivors pension for the month of death, shall be entitled to a benefit for that month in an amount equal to the amount of compensation or pension the veteran would have received for that month but for his or her death. (2) A payment issued to a deceased veteran as compensation or pension for the month in which death occurred shall be treated as payable to that veteran's surviving spouse, if the surviving spouse is not entitled to death compensation, dependency and indemnity compensation or survivors pension for that month and, if negotiated or deposited, shall be considered to be the benefit to which the surviving spouse is entitled under paragraph (c)(1) of this section. However, if such payment is in an amount less than the amount of the benefit under paragraph (c)(1) of this section, the unpaid difference shall be treated in the same manner as an accrued benefit under § 3.1000 of this part. (Authority: 38 U.S.C. 5310(b)) [48 FR 34471, July 29, 1983, as amended at 62 FR 35422, July 1, 1997; 64 FR 30392, June 8, 1999] § 3.21 Monetary rates. The rates of compensation, dependency and indemnity compensation for surviving spouses and children, and section 306 and old-law disability and survivors pension, are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 and are to be given the same force and effect as if published in the regulations (title 38, Code of Federal Regulations). The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in §§ 3.23 and 3.24. The monthly rates and annual income limitations applicable to parents' dependency and indemnity compensation are set forth in § 3.25. Cross References: Section 306 pension. See § 3.1(u). Old-law pension. See § 3.1(v). Improved pension. See § 3.1(w). [44 FR 45932, Aug. 6, 1979] § 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of death. (a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) The veteran's death was not the result of his or her own willful misconduct, and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war. (Authority: 38 U.S.C. 1318(b)) (b) For purposes of this section, “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2), but was not receiving compensation because: (i) VA was paying the compensation to the veteran's dependents; (ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (iii) The veteran had not waived retired or retirement pay in order to receive compensation; (iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. (c) For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter). (d) To be entitled to benefits under this section, a surviving spouse must have been married to the veteran— (1) For at least 1 year immediately preceding the date of the veteran's death; or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage. (Authority: 38 U.S.C. 1318) (e) Effect of judgment or settlement. (Authority: 38 U.S.C. 501) (f) Social security and worker's compensation. (g) Beneficiary's duty to report. (h) Relationship to survivor benefit plan. (Authority: 38 U.S.C. 1318) Cross References: Marriage dates. See § 3.54. Homicide. See § 3.11. [44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235, June 21, 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3391, Jan. 21, 2000; 65 FR 43699, July 14, 2000; 70 FR 72220, Dec. 2, 2005; 77 FR 40526, July 10, 2012] § 3.23 Improved pension rates—Veterans and surviving spouses. (a) Maximum annual rates of improved pension. Federal Register. (Authority: 38 U.S.C. 1521(b) or (c)) (2) Veterans in need of aid and attendance. (Authority: 38 U.S.C. 1521(d)) (3) Veterans who are housebound. (Authority: 38 U.S.C. 1521(e)) (4) Two veterans married to one another; combined rates. (Authority: 38 U.S.C. 1521(f)) (5) Surviving spouse alone or with a child or children of the deceased veteran in custody of the surviving spouse. (Authority: 38 U.S.C. 1541(b) or (c)) (6) Surviving spouses in need of aid and attendance. (Authority: 38 U.S.C. 1541(d)) (7) Surviving spouses who are housebound. (Authority: 38 U.S.C. 1541(e)) (b) Reduction for income. (Authority: 38 U.S.C. 1521, 1541) (c) Mexican border period and World War I veterans. Federal Register. (Authority: 38 U.S.C. 1521(g)) (d) Definitions of terms used in this section Dependent. (Authority: 38 U.S.C. 1521(b)) (2) In need of aid and attendance. (3) Housebound. (4) Veteran's annual income. (Authority: 38 U.S.C. 1521 (c), (h)) (5) Surviving spouse's annual income. (Authority: 38 U.S.C. 1541(c), (g)) (6) Reasonable availability and hardship. Expenses necessary for reasonable family maintenance (Authority: 38 U.S.C. 501) Cross References: Improved pension. See § 3.1(w). Child. See § 3.57(d). Definition of living with. [44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 53 FR 23235, June 21, 1988] § 3.24 Improved pension rates—Surviving children. (a) General. (b) Child with no personal custodian or in the custody of an institution. i.e. Federal Register. (c) Child in the custody of person legally responsible for support Single child. (2) More than one child. (Authority: 38 U.S.C. 1542) Cross References: Child. See § 3.57(d). Exclusions from income. See § 3.272. [44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 61 FR 20727, May 8, 1996] § 3.25 Parent's dependency and indemnity compensation (DIC)—Method of payment computation. Monthly payments of parents' DIC shall be computed in accordance with the following formulas: (a) One parent. (b) One parent who has remarried. (c) Two parents not living together. (1) Two parents who are not living together, or (2) An unremarried parent when both parents are living and the other parent has remarried. The monthly rate of DIC paid to such parent shall be the rate specified in 38 U.S.C. 1315(c)(1), as increased from time to time under 38 U.S.C. 5312, reduced by an amount no greater than $.08 for each dollar of such parent's countable annual income in excess of $800, except that no payments of DIC may be made under this paragraph if such parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(c)(3), as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under this paragraph may be less than $5 monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the reduction under this paragraph shall be recomputed to provide, as nearly as possible, for an equitable distribution of the rate increase. The results of this computation method shall be published in schedular format in the “Notices” section of the Federal Register (d) Two parents living together or remarried parents living with spouse. Federal Register (e) Aid and attendance. (1) A patient in a nursing home, or (2) Helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person. (f) Rate publication. Federal Register. (Authority: 38 U.S.C. 501) [52 FR 34907, Sept. 14, 1987, as amended at 61 FR 20727, May 8, 1996] § 3.26 Section 306 and old-law pension annual income limitations. (a) The annual income limitations for section 306 pension shall be the amounts specified in section 306(a)(2)(A) of Pub. L. 95-588, as increased from time to time under section 306(a)(3) of Pub. L. 95-588. (b) If a beneficiary under section 306 pension is in need of aid and attendance, the annual income limitation under paragraph (a) of this section shall be increased in accordance with 38 U.S.C. 1521(d), as in effect on December 31, 1978. (c) The annual income limitations for old-law pension shall be the amounts specified in section 306(b)(3) of Pub. L. 95-588, as increased from time to time under section 306(b)(4) of Pub. L. 95-588. (d) Each time there is an increase under section 306 (a)(3) or (b)(4) of Pub. L. 95-588, the actual income limitations will be published in the “Notices” section of the Federal Register. (Authority: 38 U.S.C. 501) [52 FR 34908, Sept. 14, 1987] § 3.27 Automatic adjustment of benefit rates. (a) Improved pension. (Authority: 38 U.S.C. 5312(a)) (b) Parents' dependency and indemnity compensation maximum annual income limitation and maximum monthly rates. (Authority: 38 U.S.C. 5312(b)(1)) (c) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea. (Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, 5312) (d) Medal of Honor pension. (Authority: 38 U.S.C. 1562(e)) (e) Publishing requirements. Federal Register. (Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312(c)(1)) [44 FR 45934, Aug. 6, 1979, as amended at 52 FR 34908, Sept. 14, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 68 FR 55467, Sept. 26, 2003; 76 FR 4247, Jan. 25, 2011] § 3.28 Automatic adjustment of section 306 and old-law pension income limitations. Whenever the maximum annual rates of improved pension are increased by reason of the provisions of 38 U.S.C. 5312, the following will be increased by the same percentage effective the same date: (a) The maximum annual income limitations applicable to continued receipt of section 306 and old-law pension; and (b) The dollar amount of a veteran's spouse's income that is excludable in determining the income of a veteran for section 306 pension purposes. (See § 3.262(b)(2)) These increases shall be published in the Federal Register (Authority: Sec. 306, Pub. L. 95-588). [52 FR 34908, Sept. 14, 1987] Cross References: Section 306 and old-law pension annual income limitations. See § 3.26. § 3.29 Rounding. (a) Annual rates. (Authority: 38 U.S.C. 5312(c)(2)) (b) Monthly or other periodic pension rates. (Authority: 38 U.S.C. 5123) (c) Monthly rates under 38 U.S.C. chapter 18. (Authority: 38 U.S.C. 1805(b)(3), 1815(d), 1821, 5312) [48 FR 34471, July 29, 1983, as amended at 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 75 FR 4247, Jan. 25, 2011] § 3.30 Frequency of payment of improved pension and parents' dependency and indemnity compensation (DIC). Payment shall be made as shown in paragraphs (a), (b), (c), (d), (e), and (f) of this section; however, beneficiaries receiving payment less frequently than monthly may elect to receive payment monthly in cases in which other Federal benefits would otherwise be denied. (Authority: 38 U.S.C. 501) (a) Improved pension—Monthly. (b) Improved pension—Quarterly. (c) Improved pension—Semiannually. (d) Improved pension—Annually. (Authority: 38 U.S.C. 1508) (e) Parents' DIC—Semiannually. (f) Payment of less than one dollar. Cross Reference: Pension. See § 3.3(a)(3), (b)(4). [44 FR 45935, Aug. 6, 1979, as amended at 51 FR 1790, Jan. 15, 1986; 53 FR 7903, Mar. 11, 1988; 57 FR 10425, Mar. 26, 1992; 71 FR 52290, Sept. 5, 2006] § 3.31 Commencement of the period of payment. Regardless of VA regulations concerning effective dates of awards, and except as provided in paragraph (c) of this section, payment of monetary benefits based on original, supplemental, or increased awards of compensation, pension, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or a child of a veteran with covered service in Korea may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. However, beneficiaries will be deemed to be in receipt of monetary benefits during the period between the effective date of the award and the date payment commences for the purpose of all laws administered by the Department of Veterans Affairs except that nothing in this section will be construed as preventing the receipt of retired or retirement pay prior to the effective date of waiver of such pay in accordance with 38 U.S.C. 5305. (a) Increased award defined. increased award (b) General rule of applicability. (c) Specific exclusions. (1) Surviving spouse's rate for the month of a veteran's death (for exception see § 3.20(b)) (2) In cases where military retired or retirement pay is greater than the amount of compensation payable, compensation will be paid as of the effective date of waiver of such pay. However, in cases where the amount of compensation payable is greater than military retired or retirement pay, payment of the available difference for any period prior to the effective date of total waiver of such pay is subject to the general provisions of this section. (3) Adjustments of awards—such as in the case of apportionments or the termination of any withholding, reduction, or suspension by reason of: (i) Recoupment, (ii) An offset to collect indebtedness, (iii) Institutionalization (hospitalization), (iv) Incompetency, (v) Incarceration, (vi) An estate that exceeds the limitation for certain hospitalized incompetent veterans, or (vii) Discontinuance of apportionments. (4) Increases resulting solely from the enactment of legislation—such as (i) Cost-of-living increases in compensation or dependency and indemnity compensation, (ii) Increases in Improved Pension, parents' dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 pursuant to § 3.27, or (iii) Changes in the criteria for statutory award designations. (5) Temporary total ratings pursuant to paragraph 29 of the Schedule for Rating Disabilities when the entire period of hospitalization or treatment, including any period of post-hospitalization convalescence, commences and terminates within the same calendar month. In such cases the period of payment shall commence on the first day of the month in which the hospitalization or treatment began. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5111) [48 FR 34472, July 29, 1983; 48 FR 37031, Aug. 16, 1983, as amended at 49 FR 47003, Nov. 30, 1984; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 166, Jan. 18, 2019; 91 FR 905, Jan. 9, 2026] § 3.32 Exchange rates for foreign currencies. When determining the rates of pension or parents' DIC or the amounts of burial, plot or headstone allowances or accrued benefits to which a claimant or beneficiary may be entitled, income received or expenses paid in a foreign currency shall be converted into U.S. dollar equivalents employing quarterly exchange rates established by the Department of the Treasury. (a) Pension and parents' DIC. (2) Retroactive adjustments due to fluctuations in exchange rates shall be calculated using the average of the four most recent quarterly exchange rates. If the claimant reports income and expenses for a prior reporting period, the retroactive adjustment shall be calculated using the average of the four quarterly rates which were the most recent available on the closing date of the twelve-month period for which income and expenses are reported. (b) Burial, plot or headstone allowances and accrued benefits. Cross References: Accrued benefits. See § 3.1000. Accrued benefits payable to foreign beneficiaries. See § 3.1008. (Authority: 38 U.S.C. 501) [55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, 1990] § 3.33 Reevaluation of Claims for Dependency and Indemnity Compensation Involving Presumptions of Service Connection Following Enactment of Public Law 117-168. (a) Purpose. (b) Definitions. (1) Law (2) Relevant claimant (c) Election of review General. (2) Form of election. (d) Effective date of award. (1) If VA denied a claim for DIC prior to a law defined under (b)(1) of this section that establishes or modifies a presumption of service connection on or after August 10, 2022 (the date of enactment of Pub. L. 117-168), the effective date of the award will be determined as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim. (2) If the requirements of paragraph (d)(1) are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. (e) Outreach and identification of relevant claimants. (i) Publish on the internet website of the Department a notice that such claimants may elect to have a claim so reevaluated; (ii) Notify, in writing or by electronic means, veterans service organizations of the ability of such claimants to elect to have a claim so reevaluated; and (iii) Notify each such claimant in the same manner that the Department last provided notice of a decision. (Authority 38 U.S.C. 501, 1305) [88 FR 82264, Nov. 24, 2023] § 3.40 Philippine and Insular Forces. (a) Regular Philippine Scouts. (b) Other Philippine Scouts. (Authority: 38 U.S.C. 107) (c) Commonwealth Army of the Philippines. (Authority: 38 U.S.C. 107) (2) Unless the record shows examination at time of entrance into the Armed Forces of the United States, such persons are not entitled to the presumption of soundness. This also applies upon reentering the Armed Forces after a period of inactive service. (d) Guerrilla service. (2) The following certifications by the service departments will be accepted as establishing guerrilla service: (i) Recognized guerrilla service; (ii) Unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army. This excludes civilians. A certification of Anti-Japanese Activity (e) Combined service. Cross Reference: Computation of service. See § 3.15. [26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966; 60 FR 18355, Apr. 11, 1995. Redesignated and amended at 66 FR 66767, Dec. 27, 2001; 71 FR 8220, Feb. 16, 2006] § 3.41 Philippine service. (a) For a Regular Philippine Scout or a member of one of the regular components of the Philippine Commonwealth Army while serving with Armed Forces of United States, the period of active service will be from the date certified by the Armed Forces as the date of enlistment or date of report for active duty whichever is later to date of release from active duty, discharge, death, or in the case of a member of the Philippine Commonwealth Army June 30, 1946, whichever was earlier. Release from active duty includes: (1) Leaving one's organization in anticipation of or due to the capitulation. (2) Escape from prisoner-of-war status. (3) Parole by the Japanese. (4) Beginning of missing-in-action status, except where factually shown at that time he was with his or her unit or death is presumed to have occurred while carried in such status: Provided, however, (5) Capitulation on May 6, 1942, except that periods of recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer or periods of service in units which continued organized resistance against Japanese prior to formal capitulation will be considered return to active duty for period of such service. (b) Active service of a Regular Philippine Scout or a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States will include a prisoner-of-war (c) A prisoner-of-war status based upon arrest during general zonification will not be sufficient of itself to bring a case within the definition of return to military control. (d) The active service of members of the irregular forces guerrilla [26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961Redesignated at 66 FR 66767, Dec. 27, 2001] § 3.42 Compensation at the full-dollar rate for certain Filipino veterans residing in the United States. (a) Definitions. (1) United States (2) Residing in the U.S. (3) Citizen of the U.S. (4) Lawfully admitted for permanent residence (b) Eligibility requirements. (1) A citizen of the U.S., or (2) An alien lawfully admitted for permanent residence in the U.S. (c) Evidence of eligibility. (i) A valid U.S. passport; (ii) A birth certificate showing that he or she was born in the U.S.; or (iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad. (2) Only verification by the U.S. Citizenship and Immigration Services to VA that a veteran or a veteran's survivor is a naturalized citizen of the U.S., or a valid U.S. passport, will be sufficient proof of such status. (3) Only verification by the U.S. Citizenship and Immigration Services to VA that a veteran or a veteran's survivor is an alien lawfully admitted for permanent residence in the U.S. will be sufficient proof of such status. (4) VA will not pay benefits at the full-dollar rate under this section unless the evidence establishes that the veteran or survivor is lawfully residing in the U.S. (i) Such evidence should identify the veteran's or survivor's name and relevant dates, and may include: (A) A valid driver's license issued by the state of residence; (B) Employment records, which may consist of pay stubs, W-2 forms, and certification of the filing of Federal, State, or local income tax returns; (C) Residential leases, rent receipts, utility bills and receipts, or other relevant documents showing dates of utility service at a leased residence; (D) Hospital or medical records showing medical treatment or hospitalization, and showing the name of the medical facility or treating physician; (E) Property tax bills and receipts; and (F) School records. (ii) A Post Office box mailing address in the veteran's name or the name of the veteran's survivor does not constitute evidence showing that the veteran or veteran's survivor is lawfully residing in the United States. (d) Continued eligibility. (2) A veteran or a veteran's survivor receiving benefits at the full-dollar rate under this section must notify VA within 30 days of leaving the U.S., or within 30 days of losing either his or her U.S. citizenship or lawful permanent resident alien status. When a veteran or a veteran's survivor no longer meets the eligibility requirements of paragraph (b) of this section, VA will reduce his or her payment to the rate of $0.50 for each dollar authorized under the law, effective on the date determined under § 3.505. If such veteran or survivor regains his or her U.S. citizenship or lawful permanent resident alien status, VA will restore full-dollar rate benefits, effective the date the veteran or survivor meets the eligibility requirements in paragraph (b) of this section. (3) When requested to do so by VA, a veteran or survivor receiving benefits at the full-dollar rate under this section must verify that he or she continues to meet the residency and citizenship or permanent resident alien status requirements of paragraph (b) of this section. VA will advise the veteran or survivor at the time of the request that the verification must be furnished within 60 days and that failure to do so will result in the reduction of benefits. If the veteran or survivor fails to furnish the evidence within 60 days, VA will reduce his or her payment to the rate of $0.50 for each dollar authorized, as provided in § 3.652. (4) A veteran or survivor receiving benefits at the full-dollar rate under this section must promptly notify VA of any change in his or her address. If mail from VA to the veteran or survivor is returned to VA by the U.S. Postal Service, VA will make reasonable efforts to determine the correct mailing address. If VA is unable to determine the correct mailing address through reasonable efforts, VA will reduce benefit payments to the rate of $0.50 for each dollar authorized under law, effective on the date determined under § 3.505. (e) Effective date for restored eligibility. (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0655) [66 FR 66767, Dec. 27, 2001, as amended at 71 FR 8220, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] § 3.43 Burial benefits at the full-dollar rate for certain Filipino veterans residing in the United States on the date of death. (a) Definitions. (1) United States (2) Residing in the U.S. (3) Citizen of the U.S. (4) Lawfully admitted for permanent residence (b) Eligibility requirements. (1) Residing in the U.S.; and (2) Either— (i) A citizen of the U.S., or (ii) An alien lawfully admitted for permanent residence in the U.S.; and (3) Either— (i) Receiving compensation under chapter 11 of title 38, United States Code; or (ii) Would have satisfied the disability, income and net worth requirements of § 3.3(a)(3) of this part and would have been eligible for pension if the veteran's service had been deemed to be active military, naval, or air service. (c) Evidence of eligibility. (i) A valid U.S. passport; (ii) A birth certificate showing that he or she was born in the U.S.; or (iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad. (2) In a claim based on the deceased veteran having been a naturalized citizen of the U.S., only verification of that status by the U.S. Citizenship and Immigration Services to VA, or a valid U.S. passport, will be sufficient proof for purposes of eligibility for full-dollar rate benefits. (3) In a claim based on the deceased veteran having been an alien lawfully admitted for permanent residence in the U.S., only verification of that status by the U.S. Citizenship and Immigration Services to VA will be sufficient proof for purposes of eligibility for full-dollar rate benefits. (4) VA will not pay benefits at the full-dollar rate under this section unless the evidence establishes that the veteran was lawfully residing in the U.S. on the date of death. (i) Such evidence should identify the veteran's name and relevant dates, and may include: (A) A valid driver's license issued by the state of residence; (B) Employment records, which may consist of pay stubs, W-2 forms, and certification of the filing of Federal, State, or local income tax returns; (C) Residential leases, rent receipts, utility bills and receipts, or other relevant documents showing dates of utility service at a leased residence; (D) Hospital or medical records showing medical treatment or hospitalization of the veteran or survivor, and showing the name of the medical facility or treating physician; (E) Property tax bills and receipts; and (F) School records. (ii) A Post Office box mailing address in the veteran's name does not constitute evidence showing that the veteran was lawfully residing in the United States on the date of death. (Authority: 38 U.S.C. 107, 501(a)) (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0655) [66 FR 66767, Dec. 27, 2001, as amended at 71 FR 8221, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] Relationship § 3.50 Spouse and surviving spouse. (a) Spouse. (b) Surviving spouse. (1) Who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) Except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. [62 FR 5529, Feb. 6, 1997] § 3.52 Marriages deemed valid. Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. (Authority: 38 U.S.C. 103(a)) Cross Reference: Definition, marriage. See § 3.205(c). [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 1215, Feb. 9, 1962; 32 FR 13224, Sept. 19, 1967; 41 FR 18299, May 3, 1976] § 3.53 Continuous cohabitation. (a) General. (b) Findings of fact. [41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994] § 3.54 Marriage dates. A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section. (a) Pension. (1) One year or more prior to the veteran's death, or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) Prior to the applicable delimiting dates, as follows: (i) Civil War—June 27, 1905. (ii) Indian wars—March 4, 1917. (iii) Spanish-American War—January 1, 1938. (iv) Mexican border period and World War I—December 14, 1944. (v) World War II—January 1, 1957. (vi) Korean conflict—February 1, 1965. (vii) Vietnam era—May 8, 1985. (viii) Persian Gulf War—January 1, 2001. (Authority: 38 U.S.C. 532(d), 534(c), 536(c), 541(e), 541(f)) (b) Compensation. (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the veteran's death was incurred or aggravated, or (2) One year or more, or (3) For any period of time if a child was born of the marriage, or was born to them before the marriage. (Authority: 38 U.S.C. 1102) (c) Dependency and indemnity compensation. (1) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) For 1 year or more, or (3) For any period of time if a child was born of the marriage, or was born to them before the marriage. (Authority: 38 U.S.C. 1304) (d) Child born. child born of the marriage born to them before the marriage (e) More than one marriage to veteran. (Authority: 38 U.S.C. 103(b)) [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 6498, July 10, 1962; 32 FR 13224, Sept. 19, 1967; 40 FR 16064, Apr. 9, 1975; 40 FR 48680, Oct. 17, 1975; 41 FR 18300, May 3, 1976; 44 FR 22718, Apr. 17, 1979; 54 FR 31829, Aug. 2, 1989; 56 FR 5756, Feb. 13, 1991; 56 FR 57986, Nov. 15, 1991; 65 FR 3392, Jan. 21, 2000] § 3.55 Reinstatement of benefits eligibility based upon terminated marital relationships. (a) Surviving spouse. (i) Was void, or (ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. (2) On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage: (i) Has been terminated by death, or (ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. (3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. (Authority: 38 U.S.C. 1311(e)) (4) On or after December 1, 1999, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. (Authority: 38 U.S.C. 103(d)) (5) On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990. (6) On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. (Authority: 38 U.S.C. 1311(e)) (7) On or after December 1, 1999, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. (Authority: 38 U.S.C. 103(d)) (8) On or after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because his or her conduct or a relationship into which he or she had entered had raised an inference or presumption that he or she had remarried or had been determined to be open and notorious adulterous cohabitation, or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after he or she terminates the conduct or relationship, if the relationship terminated prior to November 1, 1990. (9) (i) On or after February 4, 2003, the remarriage of a surviving spouse after age 55 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, subject to the limitation in paragraph (a)(9)(ii) of this section. (ii) A surviving spouse who remarried after the age of 55, but before December 6, 2002, may be eligible for benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits was received by VA before December 16, 2004. (iii) The remarriage of a surviving spouse after the age of 55 (at any time) shall not bar the furnishing of benefits under 38 U.S.C. chapter 13 to such person as the surviving spouse of the veteran. (Authority: 38 U.S.C. 103). (10)(i) On or after January 1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section. (ii) A surviving spouse who remarried after the age of 57, but before December 16, 2003, may be eligible for medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 pursuant to paragraph (a)(10)(i) of this section only if the application for such benefits was received by VA before December 16, 2004. (Authority: 38 U.S.C. 103) (11) A surviving spouse will not be barred from benefits relating to Medal of Honor special pension under 38 U.S.C. 1562(a)(2) due to: (i) Remarriage after the age of 57; (ii) Remarriage terminated by death or divorce, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion; or (iii) Having lived with another person and held himself or herself out openly to the public as the spouse of such other person since the death of the veteran and after September 19, 1962, if he or she ceases living with such other person and holding himself or herself out openly to the public as the other person's spouse. (Authority: 38 U.S.C. 103(d)(2) and 38 U.S.C. 103(d)(3)) (b) Child. (i) Was void, or (ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. (2) On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage: (i) Has been terminated by death, or (ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion. (Authority: 38 U.S.C. 103; 105 Stat. 424, 106 Stat. 4322) Cross References: Evidence. See §§ 3.206 and 3.207. Termination of marital relationship or conduct. See § 3.215. [58 FR 32444, June 10, 1993, as amended at 60 FR 52863, Oct. 11, 1995; 64 FR 30245, June 7, 1999; 65 FR 43700, July 14, 2000; 71 FR 29084, May 19, 2006; 87 FR 68363, Nov. 15, 2022] § 3.56 [Reserved] § 3.57 Child. (a) General. child (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. For the purposes of this section and § 3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria, including schools, colleges, academies, seminaries, technical institutes, and universities. The term also includes home schools that operate in compliance with the compulsory attendance laws of the States in which they are located, whether treated as private schools or home schools under State law. The term “home schools” is limited to courses of instruction for grades kindergarten through 12. (Authority: 38 U.S.C. 101(4)(A), 104(a)) (2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term child (i) A person who was adopted by the veteran between the ages of 18 and 23 years. (ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death. (3) Subject to the provisions of paragraphs (c) and (e) of this section, the term child (Authority: 38 U.S.C. 101(4)(A)) (4) For purposes of any benefits provided under 38 U.S.C. 1115, Additional compensation for dependents, the term child does not include a child of a veteran who is adopted out of the family of the veteran. This limitation does not apply to any benefit administered by the Secretary that is payable directly to a child in the child's own right, such as dependency and indemnity compensation under 38 CFR 3.5. (Authority: 38 U.S.C. 101(4), 501, 1115). (b) Stepchild. (c) Adopted child. (1) Was living in the veteran's household at the time of the veteran's death, and (2) Was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and (3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. (Authority: 38 U.S.C. 101(4)) (d) Definition of child custody. (1) Custody of a child shall be considered to rest with a veteran, surviving spouse of a veteran or person legally responsible for the child's support if that person has the legal right to exercise parental control and responsibility for the welfare and care of the child. A child of the veteran residing with the veteran, surviving spouse of the veteran who is the child's natural or adoptive parent, or person legally responsible for the child's support shall be presumed to be in the custody of that individual. Where the veteran, surviving spouse, or person legally responsible for the child's support has not been divested of legal custody, but the child is not residing with that individual, the child shall be considered in the custody of the individual for purposes of Department of Veterans Affairs benefits. (2) The term person legally responsible for the child's support (3) A person having custody of a child prior to the time the child attains age 18 shall be considered to retain custody of the child for periods on and after the child's 18th birthday, unless the person is divested of legal custody. This applies without regard to when a child reaches the age of majority under applicable State law. This also applies without regard to whether the child was entitled to pension prior to age 18, or whether increased pension was payable to a veteran or surviving spouse on behalf of the child prior to the child's 18th birthday. If the child's custodian dies after the child has attained age 18, the child shall be considered to be in custody of a successor custodian provided the successor custodian has the right to exercise parental control and responsibility for the welfare and care of the child. (Authority: 38 U.S.C. 501, 1521(c), 1541(c)) (e) Child adopted under foreign law General. State veteran (2) Adopted child of living veteran. (i) The person was less than 18 years of age at the time of adoption. (ii) The person is receiving one-half or more of the person's support from the veteran. (iii) The person is not in the custody of the person's natural parent unless the natural parent is the veteran's spouse. (iv) The person is residing with the veteran (or in the case of divorce following adoption, with the divorced spouse who is also a natural or adoptive parent) except for periods during which the person is residing apart from the veteran for purposes of full-time attendance at an educational institution or during which the person or the veteran is confined in a hospital, nursing home, other health-care facility, or other institution. (3) Adopted child of deceased veteran. (i) The veteran was entitled to and was receiving for the person a dependent's allowance or similar monetary benefit payable under title 38, United States Code at any time within the 1-year period immediately preceding the veteran's death; or (ii) The person met the requirements of paragraph (e)(2) of this section for a period of at least 1 year prior to the veteran's death. (4) Verification. (Authority: 38 U.S.C. 101(4), 501) Cross References: Improved pension rates. See § 3.23. Improved pension rates; surviving children. See § 3.24. Child adopted out of family. See § 3.58. Child's relationship. See § 3.210. Helplessness. See § 3.403(a)(1). Helplessness. See § 3.503(a)(3). Veteran's benefits not apportionable. See § 3.458. School attendance. See § 3.667. Helpless children—Spanish-American and prior wars. See § 3.950. [44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at 45 FR 25391, Apr. 15, 1980; 49 FR 47003, Nov. 30, 1984; 65 FR 12116, Mar. 8, 2000; 72 FR 6959, Feb. 14, 2007; 80 FR 48451, Aug. 13, 2015] § 3.58 Child adopted out of family. (a) Except as provided in paragraph (b) of this section, a child of a veteran adopted out of the family of the veteran either prior or subsequent to the veteran's death is nevertheless a child (b) A child of a veteran adopted out of the family of the veteran is not a child within the meaning of § 3.57 for purposes of any benefits provided under 38 U.S.C. 1115, Additional compensation for dependents. (Authority: 38 U.S.C. 101(4)(A), 1115). Cross References: Child. See § 3.57. Veteran's benefits not apportionable. See § 3.458. [80 FR 48451, Aug. 13, 2015] § 3.59 Parent. (a) The term parent (b) Foster relationship must have begun prior to the veteran's 21st birthday. Not more than one father and one mother, as defined, will be recognized in any case. If two persons stood in the relationship of father or mother for 1 year or more, the person who last stood in such relationship before the veteran's last entry into active service will be recognized as the parent. (Authority: 38 U.S.C. 101(5)) [26 FR 1568, Feb. 24, 1961, as amended at 44 FR 45935, Aug. 6, 1979] § 3.60 Definition of “living with”. For the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged. (Authority: 38 U.S.C. 1521(h)(2)) [44 FR 45935, Aug. 6, 1979] Administrative § 3.100 Delegations of authority. (a) Authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Veterans Benefits Administration designated by the Under Secretary to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of the Compensation Service or the Pension and Fiduciary Service. (b) Authority is delegated to the Director, Compensation Service, and the Director, Pension and Fiduciary Service, and to personnel of each service designated by its Director to determine whether a claimant or payee has forfeited the right to gratuitious benefits or to remit a prior forfeiture pursuant to the provisions of 38 U.S.C. 6103 or 6104. See § 3.905. (Authority: 38 U.S.C. 512(a)) [29 FR 7547, June 12, 1964, as amended at 31 FR 14455, Nov. 10, 1966; 37 FR 10442, May 23, 1972; 53 FR 3207, Feb. 4, 1988; 60 FR 18355, Apr. 11, 1995; 61 FR 20727, May 8, 1996; 78 FR 2100, Jan. 13, 2014] § 3.102 Reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501) [50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001] § 3.103 Procedural due process and other rights. (a) Statement of policy. (b) The right to notice (1) General. (2) Advance notice and opportunity for hearing. (3) Exceptions. (i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts. (ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report. (iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required. (iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement). (v) An adverse action based upon a written or electronic statement provided to VA by a veteran that indicates that the veteran has received, is in receipt of, or will receive active service pay as defined by § 3.654(a), or, in the case of compensation, written or electronic notice from the Department of Defense that indicates that the veteran has received or is in receipt of active service pay as defined by § 3.654(a), provided that, in cases involving notice from the Department of Defense, the veteran has on a previous occasion of concurrent receipt of compensation and payment for the type of service at issue received the notice described in paragraph (b)(2), but with a period of 30 rather than 60 days to respond, as well as notice that suspension of compensation payments based on subsequent payments for the same type of service will be made without additional advance notice. The statement from the veteran or notice from the Department of Defense must include the date on which the service resulting in receipt of active service pay began or, in the case of a statement from the veteran, the date on which the service resulting in receipt of active service pay is expected to begin, or, in the case of training duty, the number of training days performed, or, in the case of a statement from the veteran, the number of training days expected to be performed, during a specified period of time ( e.g., (vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a). (Authority: 38 U.S.C. 501(a)) (4) Restoration of benefits. (c) Submission of evidence General rule. (2) Treatment of evidence received after notice of a decision. (i) Receipt of a complete claim. (ii) Board and higher-level review returns. (iii) Constructive receipt of VA treatment records. (d) The right to a hearing. (2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. (e) The right to representation. (f) Notification of decisions. (1) Identification of the issues adjudicated; (2) A summary of the evidence considered; (3) A summary of the laws and regulations applicable to the claim; (4) A listing of any findings made by the adjudicator that are favorable to the claimant under § 3.104(c); (5) For denied claims, identification of the element(s) required to grant the claim(s) that were not met; (6) If applicable, identification of the criteria required to grant service connection or the next higher-level of compensation; (7) An explanation of how to obtain or access evidence used in making the decision; and (8) A summary of the applicable review options under § 3.2500 available for the claimant to seek further review of the decision. (Authority:38 U.S.C. 501, 1115, 1506, 5104) Cross References: Submission of statements or information affecting entitlement to benefits. See § 3.217(a). Active Service Pay. See § 3.654. General. See § 3.700(a)(1). [55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001; 76 FR 52574, Aug. 23, 2011; 77 FR 23129, Apr. 18, 2012; 84 FR 166, Jan. 18, 2019; 88 FR 86061, Dec. 12, 2023] § 3.104 Binding nature of decisions. (a) Binding decisions. (b) Binding administrative determinations. (c) Favorable findings. [29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. 18, 2019] § 3.105 Revision of decisions. The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment. (a)(1) Error in final decisions. (i) Definition of clear and unmistakable error. (ii) Effective date of reversed or revised decisions. (iii) Record to be reviewed. (iv) Change in interpretation. (v) Limitation on Applicability. (vi) Duty to assist not applicable. (vii) Filing Requirements General. (B) Specific allegations required. (2) Error in binding decisions prior to final adjudication. (b) Difference of opinion. (c) Character of discharge. (d) Severance of service connection. (Authority: 38 U.S.C. 5112(b)(6)) (e) Reduction in evaluation—compensation. (Authority: 38 U.S.C. 5112(b)(6)) (f) Reduction in evaluation—pension. (Authority: 38 U.S.C. 5112(b)(5)) (g) Reduction in evaluation—monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5112(b)(6)) (h) Other reductions/discontinuances. (Authority: 38 U.S.C. 5112) (i) Predetermination hearings. (2) Following the predetermination procedures specified in this paragraph and paragraph (d), (e), (f), (g) or (h) of this section, whichever is applicable, final action will be taken. If a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or beneficiary, death of an immediate family member, etc. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record including any additional evidence obtained following the hearing pursuant to necessary development. Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the beneficiary and his or her representative, setting forth the reasons therefor and the evidence upon which it is based. Where a reduction or discontinuance of benefits is found warranted following consideration of any additional evidence submitted, the effective date of such reduction or discontinuance shall be as follows: (i) Where reduction or discontinuance was proposed under the provisions of paragraph (d) or (e) of this section, the effective date of final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires. (ii) Where reduction or discontinuance was proposed under the provisions of paragraphs (f) and (g) of this section, the effective date of final action shall be the last day of the month in which such action is approved. (iii) Where reduction or discontinuance was proposed under the provisions of paragraph (h) of this section, the effective date of final action shall be as specified under the provisions of §§ 3.500 through 3.503 of this part. (j) Supplemental claims and higher-level review. (Authority: 38 U.S.C. 5112) Cross References: Effective dates. See § 3.400. Reductions and discontinuances. See § 3.500. Protection; service connection. See § 3.957. [26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222, May 14, 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65846, Dec. 19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR 51278, Sept. 30, 1997; 66 FR 21874, May 2, 2001; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 167, Jan. 18, 2019] § 3.106 Renouncement. (a) Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by the Department of Veterans Affairs may renounce his or her right to that benefit but may not renounce less than all of the component items which together comprise the total amount of the benefit to which the person is entitled nor any fixed monetary amounts less than the full amount of entitlement. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement in the Department of Veterans Affairs, payment of such benefits and the right thereto will be terminated, and such person will be denied any and all rights thereto from such filing. (Authority: 38 U.S.C. 5306(a)) (b) The renouncement will not preclude the person from filing a new application for pension, compensation, or dependency and indemnity compensation at any future date. Such new application will be treated as an original application, and no payments will be made thereon for any period before the date such new application is received in the Department of Veterans Affairs. (Authority: 38 U.S.C. 5306(b)) (c) Notwithstanding the provisions of paragraph (b) of this section, if a new application for pension or parents' dependency and indemnity compensation is filed within one year after the date that the Department of Veterans Affairs receives a renouncement of that benefit, such application shall not be treated as an original application and benefits will be payable as if the renouncement had not occurred. (Authority: 38 U.S.C. 5306(c)) (d) The renouncement of dependency and indemnity compensation by one beneficiary will not serve to increase the rate payable to any other beneficiary in the same class. (e) The renouncement of dependency and indemnity compensation by a surviving spouse will not serve to vest title to this benefit in children under the age of 18 years or to increase the rate payable to a child or children over the age of 18 years. [26 FR 1569, Feb. 24, 1961, as amended at 37 FR 5384, Mar. 15, 1972; 39 FR 17222, May 14, 1974; 60 FR 18355, Apr. 11, 1995; 62 FR 5529, Feb. 6, 1997] § 3.107 Awards where not all dependents apply. Except as provided in § 3.251(a)(4), in any case where claim has not been filed by or on behalf of all dependents who may be entitled, the awards (original or amended) for those dependents who have filed claim will be made for all periods at the rates and in the same manner as though there were no other dependents. However, if the file reflects the existence of other dependents who have not filed claim and there is potential entitlement to benefits for a period prior to the date of filing claim, the award to a person who has filed claim will be made at the rate which would be payable if all dependents were receiving benefits. If at the expiration of the period allowed, claims have not been filed for such dependents, the full rate will be authorized for the first payee. [29 FR 9564, July 15, 1964] § 3.108 State Department as agent of Department of Veterans Affairs. Diplomatic and consular officers of the Department of State are authorized to act as agents of the Department of Veterans Affairs and therefore a complete claim as set forth in § 3.160(a) or an intent to file a claim as set forth in § 3.155(b) or evidence submitted in support of a claim filed in a foreign country will be considered as filed in the Department of Veterans Affairs as of the date of receipt by the State Department representative. Cross Reference: Evidence from foreign countries. See § 3.202. [26 FR 1569, Feb. 24, 1961, as amended at 79 FR 57695, Sept. 25, 2014] § 3.109 Time limit. (a) Notice of time limit for filing evidence. (2) The provisions of this paragraph are applicable to original initial applications, to applications for increased benefits by reason of increased disability, age, or the existence of a dependent, and to applications for reopening or resumption of payments. If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included. (b) Extension of time limit. (Authority: 38 U.S.C. 501) [26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990; 79 FR 57695, Sept. 25, 2014] § 3.110 Computation of time limit. (a) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. (b) The first day of the specified period (Authority: 38 U.S.C. 501) [55 FR 13529, Apr. 11, 1990, as amended at 58 FR 32443, June 10, 1993; 84 FR 168, Jan. 18, 2019] § 3.111 [Reserved] § 3.112 Fractions of one cent. In all cases where the amount to be paid under any award involves a fraction of a cent, the fractional part will be excluded. [26 FR 1570, Feb. 24, 1961] § 3.114 Change of law or Department of Veterans Affairs issue. (a) Effective date of award. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1805, 1815, 1821, 1832, 5110(g)) (b) Discontinuance of benefits. (Authority: 38 U.S.C. 5112(b)(6)) [27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 168, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] § 3.115 Access to financial records. (a) The Secretary of Veterans Affairs may request from a financial institution the names and addresses of its customers. Each such request, however, shall include a certification that the information is necessary for the proper administration of benefits programs under the laws administered by the Secretary, and cannot be obtained by a reasonable search of records and information of the Department of Veterans Affairs. (b) Information received pursuant to a request referred to in paragraph (a) of this section shall not be used for any purpose other than the administration of benefits programs under the laws administered by the Secretary if the disclosure of that information would otherwise be prohibited by any provision of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 through 3422). (Authority: 38 U.S.C. 5319) [58 FR 32445, June 10, 1993] Claims § 3.150 Forms to be furnished. (a) Upon request made in person or in writing by any person applying for benefits under the laws administered by the Department of Veterans Affairs, the appropriate application form will be furnished. (Authority: 38 U.S.C. 5102) (b) Upon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or dependency and indemnity compensation. If it is not indicated that any person would be entitled to such benefits, but there is payable an accrued benefit not paid during the veteran's lifetime, the appropriate application form will be forwarded to the preferred dependent. Notice of the time limit will be included in letters forwarding applications for benefits. Cross Reference: Extension of time limit. See [26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965; 79 FR 57695, Sept. 25, 2014] § 3.151 Claims for disability benefits. (a) General. (b) Retroactive disability pension claims. (c) Issues within a claim. (2) With respect to service-connected disability compensation, an issue for purposes of paragraph (c)(1) of this section is defined as entitlement to compensation for a particular disability. For example, if a decision adjudicates service-connected disability compensation for both a knee condition and an ankle condition, compensation for each condition is a separate entitlement or issue for which a different review option may be elected. However, different review options may not be selected for specific components of the knee disability claim, such as ancillary benefits, whether a knee injury occurred in service, or whether a current knee condition resulted from a service-connected injury or condition. (d) Evidentiary record. (Authority: 38 U.S.C 5110(b)(3)) Cross Reference: Intent to file a claim. See § 3.155(b). [50 FR 25981, June 24, 1985, as amended at 79 FR 57695, Sept. 25, 2014; 84 FR 168, Jan. 18, 2019] § 3.152 Claims for death benefits. (a) A specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by § 3.153) must be filed in order for death benefits to be paid to any individual under the laws administered by VA. (See § 3.400(c) concerning effective dates of awards.) (Authority: 38 U.S.C. 5101(a)) (b)(1)(i) A claim by a surviving spouse or child for compensation or dependency and indemnity compensation will also be considered to be a claim for survivors pension and accrued benefits, and a claim by a surviving spouse or child for survivors pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. (Authority: 38 U.S.C. 5101(b)(1)) (ii)(A) Except as provided in paragraph (b)(1)(ii)(B) of this section, an award of dependency and indemnity compensation to a surviving spouse or child will result in the denial of survivors pension. (B) With respect to a claim by a surviving spouse, if the evidence establishes that, but for the surviving spouse's eligibility for dependency and indemnity compensation, the surviving spouse would be eligible to receive survivors pension at the rate provided for in 38 U.S.C. 5503(d), survivors pension will be paid instead of such compensation. (Authority: 38 U.S.C. 1317) (2) A claim by a parent for compensation or dependency and indemnity compensation will also be considered to be a claim for accrued benefits. (Authority: 38 U.S.C. 5101(b)(2)) (c)(1) Where a child's entitlement to dependency and indemnity compensation arises by reason of termination of a surviving spouse's right to dependency and indemnity compensation or by reason of attaining the age of 18 years, a claim will be required. (38 U.S.C. 5110(e).) (See paragraph (c)(4) of this section.) Where the award to the surviving spouse is terminated by reason of her or his death, a claim for the child will be considered a claim for any accrued benefits which may be payable. (2) A claim filed by a surviving spouse who does not have entitlement will be accepted as a claim for a child or children in her or his custody named in the claim. (3) Where a claim of a surviving spouse is disallowed for any reason whatsoever and where evidence requested in order to determine entitlement from a child or children named in the surviving spouse's claim is submitted within 1 year from the date of request, requested either before or after disallowance of the surviving spouse's claim, an award for the child or children will be made as though the disallowed claim had been filed solely on their behalf. Otherwise, payments may not be made for the child or children for any period prior to the date of receipt of a new claim. (4) Where payments of pension, compensation or dependency and indemnity compensation to a surviving spouse have been discontinued because of remarriage or death, or a child becomes eligible for dependency and indemnity compensation by reason of attaining the age of 18 years, and any necessary evidence is submitted within 1 year from date of request, an award for the child or children named in the surviving spouse's claim will be made on the basis of the surviving spouse's claim having been converted to a claim on behalf of the child. Otherwise, payments may not be made for any period prior to the date of receipt of a new claim. (Authority: 38 U.S.C 501) Cross References: State Department as agent of Department of Veterans Affairs. See § 3.108. Change in status of dependents. See § 3.651. [50 FR 25981, June 24, 1985, as amended at 71 FR 44918, Aug. 8, 2006; 91 FR 2713, Jan. 22, 2026] § 3.153 Claims filed with Social Security. An application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration. The receipt of such an application (or copy thereof) by the Department of Veterans Affairs will not preclude a request for any necessary evidence. (Authority: 38 U.S.C. 5105) [26 FR 1570, Feb. 24, 1961, as amended at 71 FR 44918, Aug. 8, 2006] § 3.154 Injury due to hospital treatment, etc. Claimants must file a complete claim on the appropriate application form prescribed by the Secretary when applying for benefits under 38 U.S.C. 1151 and 38 CFR 3.361. See §§ 3.151, 3.160(a), and 3.400(i) concerning effective dates of awards; see § 3.155(b) regarding intent to file the appropriate application form. (Authority: 38 U.S.C. 501 and 1151.) Cross Reference: Effective Dates. See § 3.400(i). Disability or death due to hospitalization, etc. See §§ 3.358, 3.361 and 3.800. [79 FR 57695, Sept. 25, 2014] § 3.155 How to file a claim. The following paragraphs describe the manner and methods in which a claim can be initiated and filed. The provisions of this section are applicable to all claims governed by part 3, with the exception that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims. (a) Request for an application for benefits. (b) Intent to file a claim. (1) An intent to file a claim can be submitted in one of the following three ways: (i) Saved electronic application. When an application otherwise meeting the requirements of this paragraph (b) is electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system prior to filing of a complete claim, VA will consider that application to be an intent to file a claim. (ii) Written intent on prescribed intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim. (iii) Oral intent communicated to designated VA personnel and recorded in writing. An oral statement of intent to file a claim will be accepted if it is directed to a VA employee designated to receive such a communication, the VA employee receiving this information follows the provisions set forth in § 3.217(b), and the VA employee documents the date VA received the claimant's intent to file a claim in the claimant's records. (2) An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. To the extent a claimant provides this or other extraneous information on the designated form referenced in paragraph (b)(1)(ii) of this section that the form does not solicit, the provision of such information is of no effect other than that it is added to the file for appropriate consideration as evidence in support of a complete claim if filed. In particular, if a claimant identifies specific medical condition(s) on which the claim is based in an intent to file a claim, this extraneous information does not convert the intent to file a claim into a complete claim or a substantially complete application. Extraneous information provided in an oral communication under paragraph (b)(1)(iii) of this section is of no effect and generally will not be recorded in the record of the claimant's intent to file. (3) Upon receipt of an intent to file a claim, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary. (4) If an intent to file a claim is not submitted in the form required by paragraph (b)(1) of this section or a complete claim is not filed within 1 year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received. (5) An intent to file a claim received from a service organization, an attorney, or agent indicating a represented claimant's intent to file a claim may not be accepted if a power of attorney was not executed at the time the communication was written. VA will only accept an oral intent to file from a service organization, an attorney, or agent if a power of attorney is of record at the time the oral communication is received by the designated VA employee. (6) VA will not recognize more than one intent to file concurrently for the same benefit (e.g., compensation, pension). If an intent to file has not been followed by a complete claim, a subsequent intent to file regarding the same benefit received within 1 year of the prior intent to file will have no effect. If, however, VA receives an intent to file followed by a complete claim and later another intent to file for the same benefit is submitted within 1 year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided it is received within 1 year of the subsequent intent to file. (c) Incomplete application form. (d) Claims. Requirement for complete claim and date of claim. (i) Supplemental claims. (ii) For other types of claims. e.g., (2) Scope of claim. Cross Reference: Complete claim. See § 3.160(a). Effective dates. See § 3.400. [79 FR 57695, Sept. 25, 2014, as amended at 84 FR 168, Jan. 18, 2019] § 3.156 New evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. (a) New and material evidence. (Authority: 38 U.S.C. 501, 5103A(f), 5108) (b) Pending legacy claims not under the modernized review system. (Authority: 38 U.S.C. 501) (c) Service department records. (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a)) (d) New and relevant evidence. Cross References: Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g). [27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019; 86 FR 15414, Mar. 23, 2021] § 3.158 Abandoned claims. (a) General. (Authority: 38 U.S.C. 501) (b) Department of Veterans Affairs examinations. (c) Disappearance. Cross References: Periodic certification of continued eligibility. See § 3.652. Failure to report for VA examination. See § 3.655. Disappearance of veteran. See § 3.656. [27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 84 FR 169, Jan. 18, 2019] § 3.159 Department of Veterans Affairs assistance in developing claims. (a) Definitions. (1) Competent medical evidence (2) Competent lay evidence (3) Substantially complete application (i) The claimant's name; (ii) His or her relationship to the veteran, if applicable; (iii) Sufficient service information for VA to verify the claimed service, if applicable; (iv) The benefit sought and any medical condition(s) on which it is based; (v) The claimant's signature; and (vi) In claims for nonservice-connected disability or survivors pension and parents' dependency and indemnity compensation, a statement of income; (vii) In supplemental claims, identification or inclusion of potentially new evidence (see § 3.2501); (viii) For higher-level reviews, identification of the date of the decision for which review is sought. (4) For purposes of paragraph (c)(4)(i) of this section, event (5) Information (b) VA's duty to notify claimants of necessary information or evidence. (Authority: 38 U.S.C. 5103) (2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. (Authority: 38 U.S.C. 5102(b), 5103A(3)) (3) No duty to provide the notice described in paragraph (b)(1) of this section arises: (i) Upon receipt of a supplemental claim under § 3.2501 within one year of the date VA issues notice of a prior decision; (ii) Upon receipt of a request for higher-level review under § 3.2601; (iii) Upon receipt of a Notice of Disagreement under § 20.202 of this chapter; or (iv) When, as a matter of law, entitlement to the benefit claimed cannot be established. (Authority: 38 U.S.C. 5103(a), 5103A(a)(2)) (4) After VA has issued a notice of decision, submission of information and evidence substantiating a claim must be accomplished through the proper filing of a review option in accordance with § 3.2500 on a form prescribed by the Secretary. New and relevant evidence may be submitted in connection with either the filing of a supplemental claim under § 3.2501 or the filing of a Notice of Disagreement with the Board under 38 CFR 20.202, on forms prescribed by the Secretary, and election of a Board docket that permits the filing of new evidence (see 38 CFR 20.302 and 20.303). (c) VA's duty to assist claimants in obtaining evidence. (1) Obtaining records not in the custody of a Federal department or agency. (i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. (ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records. (Authority: 38 U.S.C. 5103A(b)) (2) Obtaining records in the custody of a Federal department or agency. (i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records. (ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records. (Authority: 38 U.S.C. 5103A(b)) (3) Obtaining records in compensation claims. (Authority: 38 U.S.C. 5103A(c)) (4) Providing medical examinations or obtaining medical opinions. (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 3.309, 3.313, 3.316, 3.317, and 3.320 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. (ii) Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. (iii) For requests to reopen a finally adjudicated claim received prior to the effective date provided in § 19.2(a) of this chapter, this paragraph (c)(4) applies only if new and material evidence is presented or secured as prescribed in § 3.156. (iv) This paragraph (c)(4) applies to a supplemental claim only if new and relevant evidence under § 3.2501 is presented or secured. (Authority: 38 U.S.C. 5103A(d)) (d) Circumstances where VA will refrain from or discontinue providing assistance. (1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility; (2) Claims that are inherently incredible or clearly lack merit; and (3) An application requesting a benefit to which the claimant is not entitled as a matter of law. (Authority: 38 U.S.C. 5103A(a)(2)) (e) Duty to notify claimant of inability to obtain records. (i) The identity of the records VA was unable to obtain; (ii) An explanation of the efforts VA made to obtain the records; (iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and (iv) A notice that the claimant is ultimately responsible for providing the evidence. (2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will request that the claimant obtain the records and provide them to VA. (Authority: 38 U.S.C. 5103A(b)(2)) (f) For the purpose of the notice requirements in paragraphs (b) and (e) of this section, notice to the claimant means notice to the claimant or his or her fiduciary, if any, as well as to his or her representative, if any. (Authority: 38 U.S.C. 5102(b), 5103(a)) (g) The authority recognized in subsection (g) of 38 U.S.C. 5103A is reserved to the sole discretion of the Secretary and will be implemented, when deemed appropriate by the Secretary, through the promulgation of regulations. (Authority: 38 U.S.C. 5103A(g)) [66 FR 45630, Aug. 29, 2001, as amended at 73 FR 23356, Apr. 30, 2008; 84 FR 169, Jan. 18, 2019; 86 FR 42732, Aug. 5, 2021; 87 FR 26125, May 3, 2022] § 3.160 Status of claims. (a) Complete claim. (1) A complete claim must provide the name of the claimant; the relationship to the veteran, if applicable; and sufficient information for VA to verify the claimed service, if applicable. (2) A complete claim must be signed by the claimant or a person legally authorized to sign for the claimant. (3) A complete claim must identify the benefit sought. (4) A description of any symptom(s) or medical condition(s) on which the benefit is based must be provided to the extent the form prescribed by the Secretary so requires. (5) For nonservice-connected disability or survivors pension and parents' dependency and indemnity compensation claims, a statement of income must be provided to the extent the form prescribed by the Secretary so requires; and (6) For supplemental claims, potentially new evidence must be identified or included. (b) Original claim. (c) Pending claim. (d) Finally adjudicated claim. (1) For legacy claims not subject to the modernized review system, whichever of the following occurs first: (i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or (ii) Disposition on appellate review. (2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. (e) Reopened claims prior to effective date of modernized review system. (Authority: 38 U.S.C. 501) [27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993; 79 FR 57696, Sept. 25, 2014; 84 FR 170, Jan. 18, 2019] § 3.161 [Reserved] Evidence Requirements § 3.200 Testimony certified or under oath. (a) All oral testimony presented by claimants and witnesses on their behalf before any rating or authorization body will be under oath or affirmation. (See § 3.103(c).) (b) All written testimony submitted by the claimant or in his or her behalf for the purpose of establishing a claim for service connection will be certified or under oath or affirmation. This includes records, examination reports, and transcripts material to the issue received by the Department of Veterans Affairs at the instance of the claimant or in his or her behalf or requested by the Department of Veterans Affairs from State, county, municipal, recognized private institutions, and contract hospitals. [40 FR 36329, Aug. 20, 1975] § 3.201 Exchange of evidence; Social Security and Department of Veterans Affairs. (a) A claimant for dependency and indemnity compensation may elect to furnish to the Department of Veterans Affairs in support of that claim copies of evidence which was previously furnished to the Social Security Administration or to have the Department of Veterans Affairs obtain such evidence from the Social Security Administration. For the purpose of determining the earliest effective date for payment of dependency and indemnity compensation, such evidence will be deemed to have been received by the Department of Veterans Affairs on the date it was received by the Social Security Administration. (b) A copy or certification of evidence filed in the Department of Veterans Affairs in support of a claim for dependency and indemnity compensation will be furnished the Social Security Administration upon request from the agency. (Authority: 38 U.S.C. 501(a) and 5105) Cross Reference: Claims filed with Social Security. See § 3.153. [26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993] § 3.202 Evidence from foreign countries. (a) Except as provided in paragraph (b) of this section, where an affidavit or other document is required to be executed under oath before an official in a foreign country, the signature of that official must be authenticated by a United States Consular Officer in that jurisdiction or by the State Department. Where the United States has no consular representative in a foreign country, such authentication may be made as follows: (1) By a consular agent of a friendly government whereupon the signature and seal of the official of the friendly government may be authenticated by the State Department; or (2) By the nearest American consul who will attach a certificate showing the result of the investigation concerning its authenticity. (b) Authentication will not be required: (1) On documents approved by the Deputy Minister of Veterans Affairs, Department of Veterans Affairs, Ottawa, Canada: or (2) When it is indicated that the attesting officer is authorized to administer oaths for general purposes and the document bears his or her signature and seal; or (3) When the document is executed before a Department of Veterans Affairs employee authorized to administer oaths; or (4) When a copy of a public or church record from any foreign country purports to establish birth, adoption, marriage, annulment, divorce, or death, provided it bears the signature and seal of the custodian of such record and there is no conflicting evidence in the file which would serve to create doubt as to the correctness of the record; or (5) When a copy of the public or church record from one of the countries comprising the United Kingdom, namely: England, Scotland, Wales, or Northern Ireland, purports to establish birth, marriage, or death, provided it bears the signature or seal or stamp of the custodian of such record and there is no evidence which would serve to create doubt as to the correctness of the records; or (6) When affidavits prepared in the Republic of the Philippines are certified by a Department of Veterans Affairs representative located in the Philippines having authority to administer oaths. (c) Photocopies of original documents meeting the requirements of this section will be accepted if they satisfy the requirements of § 3.204 of this part. (Authority: 38 U.S.C. 501) Cross Reference: State Department as agent of Department of Veterans Affairs. See § 3.108. [26 FR 1571, Feb. 24, 1961, as amended at 40 FR 36329, Aug. 20, 1975; 52 FR 19348, May 22, 1987; 59 FR 46338, Sept. 8, 1994] § 3.203 Service records as evidence of service and character of discharge. (a) Evidence submitted by a claimant. (1) The evidence is a document issued by the service department. A copy of an original document is acceptable if: (i) The copy was issued by the service department; or (ii) The copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; or (iii) The copy was submitted by an accredited agent, attorney or service organization representative who has successfully completed VA-prescribed training on military records, and who certifies that it is a true and exact copy of either an original document or of a copy issued by the service department or a public custodian of records; or (iv) The Department of Veterans Affairs is satisfied that an otherwise uncertified copy submitted by the claimant or by the claimant's representative is free from alteration; and (2) The document contains needed information as to length, time and character of service; and (3) In the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. (b) Additional requirements for pension claimants. (1) Service of 4 months or more; or (2) Discharge for disability incurred in line of duty; or (3) Ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability. (c) Verification from the service department. [45 FR 72654, Nov. 3, 1980, as amended at 46 FR 51246, Oct. 19, 1981; 58 FR 37857, July 14, 1993; 58 FR 42623, Aug. 10, 1993; 66 FR 19858, Apr. 18, 2001; 86 FR 57584, Oct. 18, 2021] § 3.204 Evidence of dependents and age. (a)(1) Except as provided in paragraph (a)(2) of this section, VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216). (2) VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. (Authority: 38 U.S.C. 5124) (b) Marriage or birth. (c) Acceptability of photocopies. (Authority: 38 U.S.C. 501) (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0624) [26 FR 1572, Feb. 24, 1961, as amended at 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 59 FR 46338, Sept. 8, 1994; 61 FR 56626, Nov. 4, 1996; 66 FR 56614, Nov. 9, 2001] § 3.205 Marriage. (a) Proof of marriage. (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. (b) Valid marriage. (c) Marriages deemed valid. (Authority: 38 U.S.C. 501) Cross References: Marriages deemed valid. See § 3.52. Definitions; marriage. See § 3.1(j). Evidence of dependents and age. See § 3.204. [26 FR 1572, Feb. 24, 1961, as amended at 27 FR 6281, July 3, 1962; 36 FR 20946, Nov. 2, 1971; 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 58 FR 37857, July 14, 1993; 59 FR 46338, Sept. 8, 1994; 62 FR 5529, Feb. 6, 1997] § 3.206 Divorce. The validity of a divorce decree regular on its face, will be questioned by the Department of Veterans Affairs only when such validity is put in issue by a party thereto or a person whose interest in a claim for Department of Veterans Affairs benefits would be affected thereby. In cases where recognition of the decree is thus brought into question: (a) Where the issue is whether the veteran is single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce; (b) Where the issue is the validity of marriage to a veteran following a divorce, the matter of recognition of the divorce by the Department of Veterans Affairs (including any question of bona fide domicile) will be determined according to the laws of the jurisdictions specified in § 3.1(j). (c) Where a foreign divorce has been granted the residents of a State whose laws consider such decrees to be valid, it will thereafter be considered as valid under the laws of the jurisdictions specified in § 3.1(j) in the absence of a determination to the contrary by a court of last resort in those jurisdictions. Cross Reference: Evidence of dependents and age. See § 3.204. [27 FR 6281, July 3, 1962, as amended at 35 FR 16831, Oct. 31, 1970; 40 FR 53581, Nov. 19, 1975; 52 FR 19349, May 22, 1987] § 3.207 Void or annulled marriage. Proof that a marriage was void or has been annulled should consist of: (a) Void. (b) Annulled. Cross References: Effective dates, void or annulled marriage. See § 3.400 (u) and (v). Evidence of dependents and age. See § 3.204. [28 FR 2904, Mar. 3, 1963, as amended at 40 FR 53581, Nov. 19, 1975; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] § 3.208 Claims based on attained age. In claims for pension where the age of the veteran or surviving spouse is material, the statements of age will be accepted where they are in agreement with other statements in the record as to age. However, where there is a variance in such records, the youngest age will be accepted subject to the submission of evidence as outlined in § 3.209. Cross Reference: Evidence of dependents and age. See § 3.204. [40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987] § 3.209 Birth. Age or relationship is established by one of the following types of evidence. If the evidence submitted for proof of age or relationship indicates a difference in the name of the person as shown by other records, the discrepancy is to be reconciled by an affidavit or certified statement identifying the person having the changed name as the person whose name appears in the evidence of age or relationship. (a) A copy or abstract of the public record of birth. Such a record established more than 4 years after the birth will be accepted as proof of age or relationship if, it is not inconsistent with material of record with the Department of Veterans Affairs, or if it shows on its face that it is based upon evidence which would be acceptable under this section. (b) A copy of the church record of baptism. Such a record of baptism performed more than 4 years after birth will not be accepted as proof of age or relationship unless it is consistent with material of record with the Department of Veterans Affairs, which will include at least one reference to age or relationship made at a time when such reference was not essential to establishing entitlement to the benefit claimed. (c) Official report from the service department as to birth which occurred while the veteran was in service. (d) Affidavit or a certified statement of the physician or midwife in attendance at birth. (e) Copy of Bible or other family record certified to by a notary public or other officer with authority to administer oaths, who should state in what year the Bible or other book in which the record appears was printed, whether the record bears any erasures or other marks of alteration, and whether from the appearance of the writing he or she believes the entries to have been made at the time purported. (f) Affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their own knowledge such person is the child of such parents (naming the parents) and stating the source of their knowledge. (g) Other evidence which is adequate to establish the facts in issue, including census records, original baptismal records, hospital records, insurance policies, school, employment, immigration, or naturalization records. (Authority: 38 U.S.C. 501) Cross Reference: Evidence of dependents and age. See § 3.204. [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 40 FR 53581, Nov. 19, 1975; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] § 3.210 Child's relationship. (a) Legitimate child. Provided, (b) Illegitimate child. (1) An acknowledgment in writing signed by him; or (2) Evidence that he has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes; or (3) Any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as: (i) A copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as parent of the child; or (ii) Statements of persons who know that the veteran accepted the child as his; or (iii) Information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child. (c) Adopted child. (1) In jurisdictions where petition must be made to the court for release of adoption documents or information, or where release of such documents or information is prohibited, the following may be accepted to establish the fact of adoption: (i) As to a child adopted into the veteran's family, a copy of the child's revised birth certificate. (ii) As to a child adopted out of the veteran's family, a statement over the signature of the judge or the clerk of the court setting forth the child's former name and the date of adoption, or a certified statement by the veteran, the veteran's surviving spouse, or their fiduciaries setting forth the child's former name, date of birth, and the date and fact of adoption together with evidence indicating that the child's original public record of birth has been removed from such records. (2) As to a child adopted by the veteran's surviving spouse after the veteran's death, the statement of the adoptive parent or custodian of the child will be accepted in absence of information to the contrary, to show that the child was a member of the veteran's household at the date of the veteran's death and that recurring contributions were not being received for the child's maintenance sufficient to provide for the major portion of the child's support, from any person other than the veteran or surviving spouse or from any public or private welfare organization which furnished services or assistance to children. (Pub. L. 86-195) (d) Stepchild. Cross Reference: Evidence of dependents and age. See § 3.204. [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 28 FR 2959, Mar. 26, 1963; 38 FR 871, Jan. 5, 1973; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994; 91 FR 905, Jan. 9, 2026] § 3.211 Death. Death should be established by one of the following types of evidence: (a)(1) A copy of the public record of the State or community where death occurred. (2) A copy of a coroner's report of death or a verdict of a coroner's jury of the State or community where death occurred, provided such report or verdict properly identified the deceased. (b) Where death occurs in a hospital or institution under the control of the United States Government: (1) A death certificate signed by a medical officer; or (2) A clinical summary or other report showing fact and date of death signed by a medical officer. (c) An official report of death of a member of a uniformed service from the Secretary of the department concerned where death occurs while deceased was on the retired list, in an inactive duty status, or in the active service. (d) Where death occurs abroad: (1) A United States consular report of death bearing the signature and seal of the United States consul; or (2) A copy of the public record of death authenticated (see § 3.202(b)(4) for exception) by the United States consul or other agency of the State Department; or (3) An official report of death from the head of the department concerned, where the deceased person was, at the time of death, a civilian employee of such department. (e) If the foregoing evidence cannot be furnished, the reason must be stated. The fact of death may then be established by the affidavits of persons who have personal knowledge of the fact of death, have viewed the body of the deceased, know it to be the body of the person whose death is being established, setting forth all the facts and circumstances concerning the death, place, date, time, and cause thereof. (f) If proof of death, as defined in paragraphs (a) through (e) of this section cannot be furnished, a finding of fact of death, where death is otherwise shown by competent evidence, may be made by an official authorized to approve such findings. Where it is indicated that the veteran died under circumstances which precluded recovery or identification of the body, the fact of death should be established by the best evidence, which from the nature of the case must be supposed to exist. (g) In the absence of evidence to the contrary, a finding of fact of death made by another Federal agency will be accepted for the purposes of paragraph (f) of this section. Cross Reference: Evidence of dependents and age. See § 3.204. [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] § 3.212 Unexplained absence for 7 years. (a) If satisfactory evidence is produced establishing the fact of the continued and unexplained absence of any individual from his or her home and family for a period of 7 years or more and that a diligent search disclosed no evidence of his or her existence after the date of disappearance, and if evidence as provided in § 3.211 cannot be furnished, the death of such individual as of the expiration of such period may be considered as sufficiently proved. (b) No State law providing for presumption of death will be applicable to claims for benefits under laws administered by the Department of Veterans Affairs and the finding of death will be final and conclusive except where suit is filed for insurance under 38 U.S.C. 1984. (Authority: 38 U.S.C. 108) (c) In the absence of evidence to the contrary, a finding of death made by another Federal agency will be accepted if the finding meets the requirements of paragraph (a) of this section. Cross Reference: Evidence of dependents and age. See § 3.204. [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987] § 3.213 Change of status affecting entitlement. (a) General. (1) Veteran. (2) Surviving spouse. (3) Child. (Authority: 38 U.S.C. 501) (4) Parent. (i) Of marriage or remarriage; (ii) When two parents or a parent and spouse ceased living together; (iii) When two parents or a parent and spouse resumed living together following a period of separation; (iv) Of divorce or death of a spouse. (b) Date not reported. (c) Contradictory information. Cross References: Abandoned claims. See § 3.158. Change in status of dependents. See § 3.651. Material change in income, net worth or change in status. See § 3.660. Evidence of dependents and age. See § 3.204. [26 FR 1574, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 27 FR 11888, Dec. 1, 1962; 52 FR 19349, May 22, 1987; 61 FR 56626, Nov. 4, 1996] § 3.214 Court decisions; unremarried surviving spouses. Effective July 15, 1958, a decision rendered by a Federal court in an action to which the United States was a party holding that a surviving spouse of a veteran has not remarried will be followed in determining eligibility for pension, compensation or dependency and indemnity compensation. Cross References: Abandoned claims. See § 3.158. Change in status of dependents. See § 3.651. Dependency, income and estate. See § 3.660. Evidence of dependents and age. See § 3.204. [31 FR 2782, Feb. 16, 1966, as amended at 52 FR 19349, May 22, 1987] § 3.215 Termination of marital relationship or conduct. On or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon filing of an application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding himself or herself out openly to the public as that person's spouse or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact. [57 FR 10426, Mar. 26, 1992, as amended at 58 FR 32445, June 10, 1993] § 3.216 Mandatory disclosure of social security numbers. Any person who applies for or receives any compensation or pension benefit as defined in §§ 3.3, 3.4, or 3.5 of this part, or a monetary allowance under 38 U.S.C. chapter 18, shall, as a condition for receipt or continued receipt of benefits, furnish the Department of Veterans Affairs upon request with his or her social security number and the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received. However, no one shall be required to furnish a social security number for any person to whom none has been assigned. Benefits will be terminated if a beneficiary fails to furnish the Department of Veterans Affairs with his or her social security number or the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received, within 60 days from the date the beneficiary is requested to furnish the social security number. (Authority: 38 U.S.C. 1832, 5101(c)) (Approved by the Office of Management and Budget under control number 2900-0522) [57 FR 8268, Mar. 9, 1992, as amended at 57 FR 27935, June 23, 1992; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4248, Jan. 25, 2011] § 3.217 Submission of statements or information affecting entitlement to benefits. (a) For purposes of this part, unless specifically provided otherwise, the submission of information or a statement that affects entitlement to benefits by e-mail, facsimile, or other written electronic means, will satisfy a requirement or authorization that the statement or information be submitted in writing. Note to paragraph ( a Section 3.217(a) merely concerns the submission of information or a statement in writing. Other requirements specified in this part, such as a requirement to use a specific form, to provide specific information, to provide a signature, or to provide a certified statement, must still be met. (b) For purposes of this part, unless specifically provided otherwise, VA may take action affecting entitlement to benefits based on oral or written information or statements provided to VA by a beneficiary or his or her fiduciary. However, VA may not take action based on oral information or statements unless the VA employee receiving the information meets the following conditions: (1) During the conversation in which the information or statement is provided, the VA employee: (i) Identifies himself or herself as a VA employee who is authorized to receive the information or statement (these are VA employees authorized to take actions under §§ 2.3 or 3.100 of this chapter); (ii) Verifies the identity of the provider as either the beneficiary or his or her fiduciary by obtaining specific information about the beneficiary that can be verified from the beneficiary's VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information; and (iii) Informs the provider that the information or statement will be used for the purpose of calculating benefit amounts; and (2) During or following the conversation in which the information or statement is provided, the VA employee documents in the beneficiary's VA records the specific information or statement provided, the date such information or statement was provided, the identity of the provider, the steps taken to verify the identity of the provider as being either the beneficiary or his or her fiduciary, and that he or she informed the provider that the information would be used for the purpose of calculating benefit amounts. Authority: 38 U.S.C. 501, 1115, 1506, 5104. [66 FR 56614, Nov. 9, 2001] Dependency, Income and Estate Regulations Applicable to Programs in Effect Prior to January 1, 1979 § 3.250 Dependency of parents; compensation. (a) Income Conclusive dependency. (i) $400 for a mother or father not living together; (ii) $660 for a mother and father, or remarried parent and spouse, living together: (iii) $185 for each additional “member of the family” as defined in paragraph (b)(2). (Authority: 38 U.S.C. 102(a)) (2) Excess income. (3) Foreign residents. (b) Basic rule. (1) “Reasonable Maintenance” includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents' reasonable mode of life. (2) “Member of the family” means a person (other than spouse) including a relative in the ascending as well as descending class, whom the father or mother is under moral or legal obligation to support. In determining whether other members of the family under legal age are factors in necessary expenses of the mother or father, consideration will be given to any income from business or property (including trusts) actually available, directly or indirectly, to the mother or father for the support of the minor but not to the corpus of the estate or the income of the minor which is not so available. (c) Inception of dependency. (Authority: 38 U.S.C. 102(a)) (d) Remarriage. [28 FR 29, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 49 FR 47004, Nov. 30, 1984; 61 FR 20727, May 8, 1996] § 3.251 Income of parents; dependency and indemnity compensation. (a) Annual income limitations and rates. (2) Where there is only one parent, and the parent has remarried and is living with his or her spouse, dependency and indemnity compensation will be paid under either the formula in 38 U.S.C. 1315(b)(1) or the formula in 38 U.S.C. 1315(d), whichever will provide the greater monthly rate of dependency and indemnity compensation. The total combined annual income of the parent and spouse will be counted. (Authority: 38 U.S.C. 1315) (3) Where the claim is based on service in the Commonwealth Army of the Philippines, or as a guerrilla or as a Philippine Scout under section 14, Pub. L. 190, 79th Congress, the income limitation will be at a rate of $0.50 for each dollar. See § 3.100(b). (Authority: 38 U.S.C. 107) (4) If the remarriage of a parent has been terminated, or the parent is separated from his or her spouse, the rate of dependency and indemnity compensation for the parent will be that which would be payable if there were one parent alone or two parents not living together, whichever is applicable. (5) Where there are two parents living and only one parent has filed claim, the rate of dependency and indemnity compensation will be that which would be payable if both parents had filed claim. (b) Basic rule. [28 FR 29, Jan. 1, 1963, as amended at 31 FR 14455, Nov. 10, 1966; 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 60 FR 18355, Apr. 11, 1995] § 3.252 Annual income; pension; Mexican border period and later war periods. (a) Annual income limitations; old-law pension. (b) Annual income and net worth limitations; Pub. L. 86-211. (Authority: 38 U.S.C. 1543) (c) Basic rule. (d) Veteran with a spouse. (e) Surviving spouse with a child Child. (2) Veteran's child not in surviving spouse's custody. (3) Income of child. (4) Alternative rate. (f) Income over maximum; reduced aid and attendance allowance. (1) A veteran in need of regular aid and attendance is denied pension under 38 U.S.C. 1521 solely because the veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) and (c)(3); or (2) Pension payable under 38 U.S.C. 1521 to a veteran in need of regular aid and attendance is discontinued solely because the veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) or (c)(3); and (3) The veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) or (c)(3) by an amount not greater than the amount specified in 38 U.S.C. 1521 (d)(2). Cross References: Basic pension determinations. See § 3.314. Determination of permanent need for regular aid and attendance and “permanently bedridden”. See § 3.352. [28 FR 30, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 41 FR 56803, Dec. 30, 1976; 44 FR 45935, Aug. 6, 1979; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. 6, 1997; 91 FR 905, Jan. 9, 2026] §§ 3.253-3.255 [Reserved] § 3.256 Eligibility reporting requirements. (a) Obligation to report changes in factors affecting entitlement. (1) Income; (2) Net worth or corpus of estate; (3) Marital status; (4) Nursing home patient status; (5) School enrollment status of a child 18 years of age or older; or (6) Any other factor that affects entitlement to benefits under the provisions of this part. (b) Eligibility verification reports. (2) VA will not require old law or section 306 pensioners to submit eligibility verification reports unless the Secretary determines that doing so is necessary to preserve program integrity. (3) Except for a parent who has attained 72 years of age and has been paid dependency and indemnity compensation during two consecutive calendar years, the Secretary shall require an eligibility verification report from individuals receiving parents' dependency and indemnity compensation under the following circumstances: (i) If the Social Security Administration has not verified the beneficiary's Social Security number and, if the beneficiary is married, his or her spouse's Social Security number. (ii) If there is reason to believe that the beneficiary or, if the spouse's income could affect entitlement, his or her spouse may have received income other than Social Security during the current or previous calendar year; or (iii) If the Secretary determines that an eligibility verification report is necessary to preserve program integrity. (4) An individual who applies for or receives pension or parents' dependency and indemnity compensation as defined in §§ 3.3 or 3.5 of this part shall, as a condition of receipt or continued receipt of benefits, furnish the Department of Veterans Affairs an eligibility verification report upon request. (c) If VA requests that a claimant or beneficiary submit an eligibility verification report but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim. (Authority: Sec. 306(a)(2) and (b)(3), Pub. L. 95-588, 92 Stat. 2508-2509; 38 U.S.C. 1315(e)) (The Office of Management and Budget has approved the information collection requirements in this section under control numbers 2900-0101 and 2900-0624) [63 FR 53595, Oct. 6, 1998, as amended at 66 FR 56614, Nov. 9, 2001; 73 FR 40466, July 15, 2008] § 3.257 Children; no surviving spouse entitled. Where pension is not payable to a surviving spouse because his or her annual income exceeds the statutory limitation or because of his or her net worth, payments will be made to or for the child or children as if there were no surviving spouse. [62 FR 5529, Feb. 6, 1997] §§ 3.258-3.259 [Reserved] § 3.260 Computation of income. For entitlement to pension or dependency and indemnity compensation, income will be counted for the calendar year in which it is received. (a) Installments. (b) Deferred determinations. (c) Proportionate income limitations; excess income. (d) Proportionate income limitations; computation. (e) Proportionate income limitations; spouse. (f) Rate changes. (g) Fractions of dollars. (Authority: 38 U.S.C. 1315(g)(2); 1503(b)) [28 FR 30, Jan. 1, 1963, as amended at 29 FR 2944, Mar. 4, 1964; 37 FR 6677, Apr. 1, 1972; 40 FR 16066, Apr. 9, 1975] § 3.261 Character of income; exclusions and estates. The following factors will be considered in determining whether a claimant meets the requirements of §§ 3.250, 3.251 and 3.252 with reference to dependency, income limitations and corpus of estate: (a) Income. Income Dependency (parents) Dependency and indemnity compensation (parents) Pension; old-law (veterans, surviving spouses and children) Pension; section 306 (veterans, surviving spouses and children) See— (1) Total income from employment, business, investments, or rents Included Included Included Included § 3.262(a). (2) Income of spouse ......do ......do Excluded ......do § 3.262(b). (3) Earnings of members of family under legal age ......do Excluded ......do Excluded § 3.250(b)(2). (4) Earned income of child-claimant Included ......do (5) Gifts, including contributions from adult members of family: Property ......do Included ......do ......do § 3.262(k). Money ......do ......do ......do Included (6) Value of maintenance by relative, friend, or organization Excluded Excluded Excluded Excluded § 3.262(c). (7) Rental value of property owned by and resided in by claimant ......do ......do ......do ......do (8) Charitable donations ......do ......do Included ......do § 3.262(d). (9) Family allowance authorized by service personnel Included Included ......do Included (10) Reasonable value of allowances to person in service in addition to base pay ......do ......do ......do Included except as earned income of child-claimant (11) Mustering-out pay Excluded ......do Excluded ......do (12) Six-months' death gratuity ......do Excluded ......do Excluded (13) Bonus or similar cash gratuity paid by any State based on service in Armed Forces of United States Excluded Excluded Excluded Excluded (14) Retired Serviceman's Family Protection Plan; Survivor Benefit Plan (10 U.S.C. ch. 73): Retired Serviceman's Family Protection Plan (Subch. I): Annuities ......do ......do ......do ......do Refund (10 U.S.C. 1446) Included Included Included Included Survivor Benefit Plan (Subch. II) (Pub. L. 92-425; 86 Stat. 706) ......do ......do ......do ......do § 3.262(e). Annuity under § 653, Pub. L. 100-456 Included Included Excluded Excluded § 3.262(r) (15) Retirement pay received direct from service department Included Included Included Included § 3.262(e). (16) Retirement benefits; general ......do ......do ......do ......do § 3.262(e). (17) Social security benefits: Old age and survivors', and disability insurance Included Included Included Included § 3.262(f). Charitable programs Excluded Excluded ......do Excluded Lump-sum death payments Included ......do ......do ......do Supplemental security income Excluded Excluded ......do ......do (18) Railroad Retirement benefits ......do Included Disability pension—Excluded Death pension—Included Included § 3.262(g). (19) Retirement pay waived under Federal statute Excluded Excluded Excluded ......do § 3.262(h). (20) Department of Veterans Affairs payments: Pension Excluded Excluded Excluded Excluded Compensation and dependency and indemnity compensation ......do ......do ......do ......do World War I adjusted compensation ......do Included ......do Included U.S. Government life insurance or national service life insurance for disability or death, maturity of endowment policies, and dividends, including special and termination dividends Excluded Excluded Excluded Excluded Servicemembers' group life insurance ......do ......do ......do ......do Veterans' group life insurance ......do ......do ......do ......do Servicemembers' indemnity ......do ......do ......do ......do Subsistence allowance (38 U.S.C. ch. 31) Included Included Included Included Veterans educational assistance in excess of amounts expended for training (38 U.S.C. ch. 34) ......do ......do ......do ......do Educational assistance (38 U.S.C. ch. 35) Excluded Excluded Special allowance under 38 U.S.C. 1312(a) Excluded Included ......do Included Statutory burial allowance ......do Excluded ......do Excluded Accrued ......do Included, except accrued as reimbursement ......do Included, except accrued as reimbursement (21) Compensation (civilian) for injury or death Included Included Included Included § 3.262(i). (22) Contributions by a public or private employer to a: Public or private health or hospitalization plan for an active or retired employee Excluded Excluded Excluded Excluded Retired employee as reimbursement for premiums for supplementary medical insurance benefits under the Social Security Program (Pub. L. 91-588; 84 Stat. 1580) Included Included Excluded Excluded (23) Overtime pay; Government employees Included Included Disability pension—Excluded. survivors pension—Included Included (24) Commercial life insurance; disability, accident, or health insurance, less payments of medical or hospital expenses resulting from the accident or disease for which payments are made Included (as received) Included (as received) Included (special provision) Included (as received) § 3.262(j). (25) Commercial annuities or endowments ......do Included (special provision) ......do Included (special provision) § 3.262(j). (26) Dividends from commercial insurance Excluded Excluded Excluded Excluded (27) Insurance under Merchant Marine Act of 1936, as amended Included Included Included Included (28) Reimbursement for casualty loss (Pub. L. 100-687) Included Excluded Included Included § 3.262(t) Other fire Insurance Excluded Excluded Excluded Excluded § 3.262(t) (29) Bequests, devises and inheritances: Property Included Excluded Included ......do § 3.262(k). Money ......do Included ......do Included Joint bank accounts ......do ......do ......do Excluded § 3.262(k)(1). (30) Profit from sale of property Excluded Excluded Excluded Excluded § 3.262(k). (31) Jury duty or obligatory civic duties ......do ......do ......do ......do (32) Relocation payments (Pub. L. 90-448; Pub. L. 90-495) ......do ......do ......do ......do § 3.262(c). (33) The following programs administered by the ACTION Agency: Foster Grandparent Program and Older Americans Community Service Programs payments (Pub. L. 93-29; 87 Stat. 55) ......do ......do ......do ......do § 3.262(q)(1). Volunteers in Service to America (VISTA), University Year for ACTION (UYA), Program for Local Services (PLS), ACTION Cooperative Volunteers (ACV), Foster Grandparent Program (FGP), and Older American Community Service Programs, Retired Senior Volunteer Program (RSVP), Senior Companion Program (Pub. L. 93-113; 87 Stat. 394) ......do ......do ......do ......do § 3.262(q)(2). (34) The Service Corps of Retired Executives (SCORE) and Active Corps of Executives (ACE) administered by the Small Business Administration. (Pub. L. 93-113; 87 Stat. 394) ......do ......do ......do ......do § 3.262(q)(2). (35) Income received under Section 6 of the Radiation Exposure Compensation Act (Pub. L. 101-426) Excluded Excluded Included Included § 3.262(t) (36) Income received from income tax returns Excluded Excluded Excluded Excluded § 3.262(u) (37) Other amounts excluded from income by statute Excluded Excluded Excluded Excluded § 3.262(v) 1 (b) Deduction of amounts paid by claimant. Deduction Dependency (parents) Dependency and indemnity compensation Pension; old-law (veterans, surviving spouses, and children) Pension; section 306 (veterans, surviving spouses, and children) See (1) Unusual medical expenses Not authorized Authorized Not authorized Authorized §§ 3.262(b)(1) and (1). (2) Veteran: just debts, expenses of last illness and burial Not authorized Authorized, except debts Not authorized Authorized §§ 3.262(m) and (o). (3) Veteran's spouse or child: expenses of last illness and burial Not authorized Not authorized Not authorized Authorized § 3.262(n). (4) Parent's spouse: just debts; expenses of last illness and burial Not authorized Authorized § 3.262(o). (5) Prepayment on real property mortgages after death of spouse (Pub. L. 91-588) Not authorized Not authorized Not authorized Authorized §§ 3.262(k)(6). (c) Corpus of estate. Dependency (parents) Dependency and indemnity compensation Pension; old-law (veterans, widows, and children) Pension; section 306 (veterans, surviving spouses, and children) See Considered conditionally Not considered Not considered Considered § 3.263. [28 FR 31, Jan. 1, 1963, as amended at 29 FR 15205, Nov. 11, 1964; 31 FR 15632, Dec. 13, 1966; 33 FR 15286, Oct. 15, 1968; 36 FR 8446, May 6, 1971; 37 FR 6677, Apr. 1, 1972; 37 FR 7092, Apr. 8, 1972; 37 FR 21436, Oct. 11, 1972; 38 FR 872, Jan. 5, 1973; 38 FR 26804, Sept. 26, 1973; 38 FR 28826, Oct. 17, 1973; 40 FR 13305, Mar. 26, 1975; 40 FR 57459, Dec. 10, 1975; 41 FR 17386, Apr. 26, 1976; 42 FR 43834, Aug. 31, 1977; 57 FR 59298, Dec. 15, 1992; 58 FR 12174, Mar. 3, 1993; 58 FR 31909, June 7, 1993; 58 FR 33766, June 21, 1993; 59 FR 37696, July 25, 1994; 60 FR 2522, Jan. 10, 1995; 60 FR 18355, Apr. 11, 1995; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; 83 FR 47268, Sept 18, 2018] § 3.262 Evaluation of income. (a) Total income. (1) Salary is not determined by “takehome” pay, but includes deductions made under a retirement act or plan and amounts withheld by virtue of income tax laws. (2) The gross income from a business or profession may be reduced by the necessary operating expenses, such as cost of goods sold, or expenditures for rent, taxes, and upkeep. Depreciation is not a deductible expense. The cost of repairs or replacement may be deducted. The value of an increase in stock inventory of a business is not considered income. (3) A loss sustained in operating a business, profession, or farm or from investments may not be deducted from income derived from any other source. (b) Income of spouse. (1) Parents. (2) Veterans. Federal Register. (Authority: 38 U.S.C. 1521(f); sec. 306(a)(2)(B) of Pub. L. 95-588) (c) Maintenance. (d) Charitable donations. (e) Retirement benefits; general. (1) Protected pension. (2) Pension; Pub. L. 86-211. (3) Compensation. (4) Dependency and indemnity compensation. (Authority: 38 U.S.C. 1315(g), 1503(a)(6)) (f) Social security benefits. (g) Railroad retirement benefits Parents, surviving spouses and children. (2) Veterans. (h) Retirement benefits waived. (1) Civil Service Retirement and Disability Fund; (2) Railroad Retirement Board (see paragraph (g)(2) of this section); (3) District of Columbia, firemen, policemen, or public school teachers; (4) Former lighthouse service. (i) Compensation civilian for injury or death. (Authority: Pub. L. 92-198, 85 Stat. 663) (2) For pension, effective October 7, 1966, and for dependency and indemnity compensation effective January 1, 1967, if payments based on permanent and total disability or death are received from the Bureau of Employees' Compensation, Social Security Administration or Railroad Retirement Board, or pursuant to any workmen's compensation or employer's liability statute, there will be excluded 10 percent of the payments received after deduction of medical, legal, and other expenses as authorized by paragraph (i)(1) of this section. The 10 percent exclusion does not apply to damages collected incident to a tort suit under other than an employer's liability law of the United States or a political subdivision of the United States, or to determinations of dependency for compensation purposes. (j) Commercial insurance Annuity or endowment insurance. (2) Life insurance; general. (3) Life insurance; old-law pension. (4) Disability, accident or health insurance. (k) Property Ownership. (Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508) (2) Income-producing property. (3) Sale of property. (4) Homes. (i) To the extent that it is applied within the calendar year of the sale, or the succeeding calendar year, to the purchase price of another residence as his principal dwelling; (ii) Such application of the net profit is reported within 1 year following the date so applied, and (iii) The net profit is so applied after January 10, 1962, to a purchase made after said date. This exclusion will not apply where the net profit is applied to the price of a home purchased earlier than the calendar year preceding the calendar year of sale of the old residence. (5) Sale of property; section 306 pension and dependency and indemnity compensation. (Authority: 38 U.S.C. 1503(a)(10); 38 U.S.C. 1315(g)) (6) Payments on mortgages on real property; section 306 pension. (Authority: 38 U.S.C. 1503(a)(14)) (l) Unusual medical expenses. unusual excessive. unusual. (1) Veterans. (2) Surviving spouses. (3) Children. (4) Parents. (Authority: 38 U.S.C. 1315(f)(3); Sec. 306, Pub. L. 95-588; 92 Stat. 2508) (m) Veteran's final expenses; pension. (1) From the income of a surviving spouse, amounts equal to amounts paid for the expenses of the veteran's last illness; (2) From the income of a surviving spouse, or of a child of a deceased veteran where there is no surviving spouse, amounts equal to amounts paid by the surviving spouse or child for the veteran's just debts, for the expenses of the veteran's last illness, and burial to the extent such expenses are not reimbursed by the Department of Veterans Affairs. The term “just debts” does not include any debt that is secured by real or personal property. (Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508) (n) Final expenses of veteran's spouse or child; pension. (1) From the income of a veteran, amounts equal to amounts paid by the veteran for the last illness and burial of the veteran's deceased spouse or child; and (2) From the income of a spouse or surviving spouse, amounts equal to amounts paid by her as spouse or surviving spouse of the deceased veteran for the last illness and burial of a child of such veteran. (Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508) (o) Final expenses of veteran or parent's spouse; dependency and indemnity compensation. (1) The expenses of the veteran's last illness and burial to the extent that such expenses are not reimbursed under 38 U.S.C. ch. 23. (2) The parent's deceased spouse's just debts, the expenses of the spouse's last illness to the extent such expenses are not reimbursed under 38 U.S.C. ch. 51 and the expenses of the spouse's burial to the extent that such expenses are not reimbursed under 38 U.S.C. ch. 23 or 51. The term “just debts” does not include any debt that is secured by real or personal property. (Authority: 38 U.S.C. 1315(f)) (p) Final expenses; year of exclusion. (q) Volunteer programs Payments under Foster Grandparent Program and Older Americans Community Service Programs. (Authority: Pub. L. 93-29; 87 Stat. 55) (2) Payments under domestic volunteer service act programs. (Authority: Pub. L. 93-113; 87 Stat. 394) (r) Survivor benefit annuity. (Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991) (s) Reimbursement for casualty loss. (1) Reimbursement for casualty loss of any kind in determining entitlement to parents' dependency and indemnity compensation benefits. For purposes of paragraph (t) of this section, the term “casualty loss” means the complete or partial destruction of property resulting from an identifiable event of a sudden, unexpected or unusual nature. (2) Proceeds from fire insurance in determining dependency of a parent for compensation purposes or in determining entitlement to old-law and section 306 pension benefits. (Authority: 38 U.S.C. 1315(f)) (t) Radiation Exposure Compensation Act. (Authority: 42 U.S.C. 2210 note) (u) Income tax returns. (Authority: 26 U.S.C. 6409) (v) Statutory exclusions. (Authority: 42 U.S.C. 1395w-141(g)(6)) [28 FR 32, Jan. 1, 1963] Editorial Note: For Federal Register www.govinfo.gov. § 3.263 Corpus of estate; net worth. (a) General. (b) Definition. Corpus of estate net worth (c) Ownership. (d) Evaluation. (e) VA will exclude from the corpus of estate or net worth any amount designated by statute as not countable as a resource. See § 3.279. (Authority: 42 U.S.C. 1395w-141(g)(6)) [28 FR 33, Jan. 1, 1963, as amended at 39 FR 28527, Aug. 8, 1974; 44 FR 45936, Aug. 6, 1979; 57 FR 59299, Dec. 15, 1992; 58 FR 33767, June 21, 1993; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; 83 FR 47269, Sept. 18, 2018] § 3.270 Applicability of various dependency, income and estate regulations. (a) Sections 3.250 through 3.263 and 3.278 through 3.279. (1) Parents' death compensation. (2) Old-law pension. (3) Section 306 pension. (4) Parents' dependency and indemnity compensation. Note: Citations to title 38 U.S.C. in §§ 3.250 through 3.263 and 3.278 through 3.279 referring to section 306 or old-law pension generally refer to provisions of law in effect on December 31, 1978. (b) Sections 3.271 through 3.279. [44 FR 45936, Aug. 6, 1979, as amended at 83 FR 47269, Sept. 18, 2018] Regulations Applicable to the Improved Pension Program Which Became Effective January 1, 1979 Source: 44 FR 45936, Aug. 6, 1979, unless otherwise noted. § 3.271 Computation of income. (a) General. (Authority: 38 U.S.C. 501) (1) Recurring income. (2) Irregular income. (3) Nonrecurring income. (b) Salary. (c) Business, farm or professional income. (2) Depreciation is not a deductible expense. (3) A loss sustained in operating a business, profession, farm, or from investments, may not be deducted from income derived from any other source. (d) Income from property. (e) Installments. (Authority: 38 U.S.C. 501) (f) Deferred determinations. (Authority: 38 U.S.C. 501) (2) When a claimed dependent is shown to have income which exceeds the additional amount of benefits payable based on the claimed dependency, but evidence requirements of § 3.204, § 3.205, § 3.209, or § 3.210 have not been met, the maximum annual rate of improved pension shall be determined without consideration of the claimed dependency. This amount shall be reduced by an amount which includes the income of the unestablished dependent. Adjustments in computation of the maximum annual rate of improved pension shall occur following receipt of evidence necessary to establish the dependency. (Authority: 38 U.S.C. 501(a)) (g) Compensation (civilian) for injury or death. (Authority: 38 U.S.C. 501) (h) Fractions of dollars. (i) Waiver of receipt of income. (Authority: 38 U.S.C. 1503 (a)). [44 FR 45936, Aug. 6, 1979, as amended at 53 FR 23235, June 21, 1988; 57 FR 59299, Dec. 15, 1992; 83 FR 47269, Sept. 18, 2018] § 3.272 Exclusions from income. The following shall be excluded from countable income for the purpose of determining entitlement to improved pension. Unless otherwise provided, expenses deductible under this section are deductible only during the 12-month annualization period in which they were paid. (Authority: 38 U.S.C. 501) (a) Welfare. (Authority: 38 U.S.C. 1503(a)(1)) (b) Maintenance. (Authority: 38 U.S.C. 501, 1503(a)(1)) (c) Department of Veterans Affairs pension benefits. (Authority: 38 U.S.C. 1503(a)(2)) (d) Reimbursement for casualty loss. (Authority: 38 U.S.C. 1503(a)(5)) (e) Profit from sale of property. (Authority: 38 U.S.C. 1503(a)(6)) (f) Joint accounts. (Authority: 38 U.S.C. 1503(a)(7)) (g) Medical expenses. (Authority: 38 U.S.C. 501) (1) Veteran's income. (i) They were or will be paid by a veteran or spouse for medical expenses of the veteran, spouse, children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) They were or will be incurred on behalf of a person who is a member or a constructive member of the veteran's or spouse's household; and (iii) They were or will be in excess of 5 percent of the applicable maximum annual pension rate or rates for the veteran (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. (2) Surviving spouse's income. (i) They were or will be paid by a surviving spouse for medical expenses of the spouse, veteran's children, parents and other relatives for whom there is a moral or legal obligation of support; (ii) They were or will be incurred on behalf of a person who is a member or a constructive member of the spouse's household; and (iii) They were or will be in excess of 5 percent of the applicable maximum annual pension rate or rates for the spouse (including increased pension for family members but excluding increased pension because of need for aid and attendance or being housebound) as in effect during the 12-month annualization period in which the medical expenses were paid. (Authority: 38 U.S.C. 501) (3) Children's income. (Authority: 38 U.S.C. 501) (h) Expenses of last illnesses, burials, and just debts. (Authority: 38 U.S.C. 501) (1) Veteran's final expenses. (Authority: 38 U.S.C. 1503(a)(3)) (ii) Amounts paid by a surviving spouse or child of a veteran for the veteran's just debts, expenses of last illness and burial (to the extent such burial expenses are not reimbursed under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving spouse or child. The term “just debts” does not include any debt that is secured by real or personal property. (Authority: 38 U.S.C. 1503(a)(3)) (2) Spouse or child's final expenses. (ii) Amounts paid by a veteran's spouse or surviving spouse for expenses of the last illness and burial of the veteran's child will be deducted from the spouse's or surviving spouse's income. (Authority: 38 U.S.C. 1503(a)(4)) (i) Educational expenses. (Authority: 38 U.S.C. 1503(a)(9)) (j) Child's income. (1) The lowest amount of gross income for which a Federal income tax return must be filed, as specified in section 6012(a) of the Internal Revenue Code of 1954, by an individual who is not married (as determined under section 143 of such Code), and is not a surviving spouse (as defined in section 2(a) of such Code), and is not a head of household (as defined in section 2(b) of such Code); and (2) If the child is pursuing a course of postsecondary education or vocational rehabilitation or training, the amount paid by the child for those educational expenses including the amount paid for tuition, fees, books, and materials. (Authority: 38 U.S.C. 1503(a)(10)) (k) Veterans' benefits from States and municipalities. (Authority: 38 U.S.C. 1503(a)(11)) (l) Distributions of funds under 38 U.S.C. 1718. (Authority: 38 U.S.C. 1718(f)) (m) Hardship exclusion of child's available income. (Authority: 38 U.S.C. 1521(h), 1541(g)) (n) Survivor benefit annuity. (Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991) (o) Cash surrender value of life insurance. (Authority: 38 U.S.C. 501(a)) (p) Radiation Exposure Compensation Act. (Authority: 42 U.S.C. 2210 note) (q) Life insurance proceeds. (Authority: 38 U.S.C. 1503(a)(12)) (r) Income tax returns. (Authority: 26 U.S.C. 6409) (s) Reimbursements for loss. (Authority: 38 U.S.C. 1503(a)(5)) (t) Statutory exclusions. [44 FR 45936, Aug. 6, 1979] Editorial Note: For Federal Register www.govinfo.gov. § 3.273 Rate computation. The commencement date of change in benefit payments based on rate computations under the provisions of this section will be determined under the provisions of § 3.31 or § 3.660. (a) Initial award. (b) Running awards Change in maximum annual pension rate. (2) Change in amount of income. (c) Nonrecurring income. (Authority: 38 U.S.C. 501) (d) Recurring and irregular income. [44 FR 45936, Aug. 6, 1979, as amended at 48 FR 34472, July 29, 1983; 57 FR 59300, Dec. 15, 1992] § 3.274 Net worth and VA pension. (a) Net worth limit. www.benefits.va.gov/pension/. (b) When a claimant's or beneficiary's net worth exceeds the limit. (1) Net worth. (2) Asset calculation. (3) Annual income calculation. See (4) Example of net worth calculation. (c) Assets of other individuals included as claimant's or beneficiary's assets Claimant or beneficiary is a veteran. (2) Claimant or beneficiary is a surviving spouse. (3) Claimant or beneficiary is a surviving child. (ii) If a surviving child has a custodian other than an institution, the child's assets include the assets of the child as well as the assets of the custodian. If the child is in the joint custody of his or her natural or adoptive parent and a stepparent, the child's assets also include the assets of the stepparent. See (d) How a child's net worth affects a veteran's or surviving spouse's pension entitlement. (1) Dependent child and potential dependent child. (i) “Dependent child” refers to a child for whom a veteran or a surviving spouse is entitled to an increased maximum annual pension rate. (ii) “Potential dependent child” refers to a child who is excluded from a veteran's or surviving spouse's pension award solely or partly because of this paragraph (d). References in this section to “dependent child” include a potential dependent child. (2) Dependent child net worth. (3) Dependent child asset calculation. (4) Dependent child annual income calculation. (e) When VA calculates net worth. (1) VA has received— (i) An original pension claim; (ii) A new pension claim after a period of non-entitlement; (iii) A request to establish a new dependent; or (iv) Information that a veteran's, surviving spouse's, or child's net worth has increased or decreased; and (2) The claimant or beneficiary meets the other factors necessary for pension entitlement as provided in § 3.3(a)(3) and (b)(4). Note to paragraph ( e If the evidence shows that net worth exceeds the net worth limit, VA may decide the pension claim before determining if the claimant meets other entitlement factors. VA will notify the claimant of the entitlement factors that have not been established. (f) How net worth decreases. (1) How assets decrease. See (2) How annual income decreases. See (3) Example 1. (4) Example 2. (g) Effective dates of pension entitlement or increased entitlement after a denial, reduction, or discontinuance based on excessive net worth Scope of paragraph. (i) Discontinued pension or denied pension entitlement for a veteran, surviving spouse, or surviving child based on the veteran's, surviving spouse's, or surviving child's excessive net worth; or (ii) Reduced pension or denied increased pension entitlement for a veteran or surviving spouse based on a dependent child's excessive net worth. (2) Effective date of entitlement or increased entitlement. (h) Reduction or discontinuance of beneficiary's pension entitlement based on excessive net worth Effective date of reduction or discontinuance. (2) Net worth decreases before the effective date. (i) Additional effective-date provisions for dependent children Establishing a dependent child on veteran's or surviving spouse's pension award results in increased pension entitlement. (2) Establishing a dependent child on veteran's or surviving spouse's pension award results in decreased pension entitlement. i.e., (ii) When a dependent child's excessive net worth results in increased pension entitlement for the veteran or surviving spouse, the effective date of the increased pension entitlement rate ( i.e., (Authority: 38 U.S.C. 1522, 1543, 5110, 5112) [83 FR 47269, Sept 18, 2018] § 3.275 How VA determines the asset amount for pension net worth determinations. (a) Definitions pertaining to assets Assets. assets See also (2) Claimant. claimant (ii) For the purpose of paragraph (b)(1) of this section, claimant (3) Residential lot area. residential lot area (b) Exclusions from assets. (1) Primary residence. (i) Personal mortgage not deductible. (ii) Claimant not residing in primary residence. (A) A nursing home or medical foster home; (B) A care facility other than a nursing home; or (C) The home of a family member for health care or custodial care. (2) Personal effects. (3) Radiation Exposure Compensation Act payments. (Authority: 42 U.S.C. 2210 (note)) (4) Ricky Ray Hemophilia Relief Fund payments. (Authority: 42 U.S.C. 300c-22 (note)) (5) Energy Employees Occupational Illness Compensation Program payments. (Authority: 42 U.S.C. 7385e(2)) (6) Payments to Aleuts. (Authority: 50 U.S.C. App. 1989c-5(d)(2)) (7) Statutory exclusions. (Authority: 38 U.S.C. 1522, 1543) [83 FR 47271, Sept. 18, 2018] § 3.276 Asset transfers and penalty periods. (a) Asset transfer definitions. (1) Claimant (2) Covered asset (i) Was part of a claimant's net worth; (ii) Was transferred for less than fair market value; and (iii) If not transferred, would have caused or partially caused the claimant's net worth to exceed the net worth limit under § 3.274(a). (3) Covered asset amount (i) Example 1. (ii) Example 2. (4) Fair market value (5) Transfer for less than fair market value (i) Selling, conveying, gifting, or exchanging an asset for an amount less than the fair market value of the asset; or (ii) A voluntary asset transfer to, or purchase of, any financial instrument or investment that reduces net worth by transferring the asset to, or purchasing, the instrument or investment unless the claimant establishes that he or she has the ability to liquidate the entire balance of the asset for the claimant's own benefit. If the claimant establishes that the asset can be liquidated, the asset is included as net worth. Examples of such instruments or investments include— (A) Annuities. Annuity (B) Trusts. Trust (6) Uncompensated value uncompensated value (7) Look-back period (8) Penalty period (b) General statement of policy pertaining to pension and covered assets. (c) Exception for transfers as a result of fraud or unfair business practice. (d) Exception for transfers to certain trusts. (1) VA rates or has rated the child incapable of self-support under § 3.356; and (2) There is no circumstance under which distributions from the trust can be used to benefit the veteran, the veteran's spouse, or the veteran's surviving spouse. (e) Penalty periods and calculations. (1) Monthly penalty rate. www.benefits.va.gov/pension. (2) Beginning date of penalty period. (3) Entitlement upon ending of penalty period. (4) Example of penalty period calculation. (5) Penalty period recalculations. (i) The original calculation is shown to be erroneous; or (ii) VA receives evidence showing that some or all covered assets were returned to the claimant before the date of claim or within 60 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. If covered assets are returned to the claimant, VA will recalculate or eliminate the penalty period. For this exception to apply, VA must receive the evidence not later than 90 days after the date of VA's notice to the claimant of VA's decision concerning the penalty period. Once covered assets are returned, a claimant may reduce net worth at the time of transfer under the provisions of § 3.274(f). (Authority: 38 U.S.C. 1522, 1543, 1506(1)) (The Office of Management and Budget has approved the information collection requirement in this section under control numbers 2900-0002, and 2900-0004) [83 FR 47271, Sept. 18, 2018] § 3.277 Eligibility reporting requirements. (a) Evidence of entitlement. dependent child surviving child (b) Obligation to report changes in factors affecting entitlement. (1) Income; (2) Net worth or corpus of estate; (3) Marital status; (4) Nursing home patient status; (5) School enrollment status of a child 18 years of age or older; or (6) Any other factor that affects entitlement to benefits under the provisions of this Part. (c) Eligibility verification reports. (2) The Secretary may require an eligibility verification report under the following circumstances: (i) If the Social Security Administration has not verified the beneficiary's Social Security number and, if the beneficiary is married, his or her spouse's Social Security number; (ii) If there is reason to believe that the beneficiary or his or her spouse may have received income other than Social Security during the current or previous calendar year; or (iii) If the Secretary determines that an eligibility verification report is necessary to preserve program integrity. (3) An individual who applies for or receives pension as defined in § 3.3 of this part shall, as a condition of receipt or continued receipt of benefits, furnish the Department of Veterans Affairs an eligibility verification report upon request. (d) If VA requests that a claimant or beneficiary submit an eligibility verification report but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim. (Authority: 38 U.S.C. 1506) (The Office of Management and Budget has approved the information collection requirements in this section under control numbers 2900-0101 and 2900-0624) [44 FR 45936, Aug. 6, 1979, as amended at 60 FR 51922, Oct. 4, 1995; 65 FR 16827, Mar. 30, 2000; 66 FR 56614, Nov. 9, 2001; 83 FR 47272, Sept. 18, 2018] § 3.278 Deductible medical expenses. (a) Scope. (b) Definitions. (1) Health care provider (i) An individual licensed by a State or country to provide health care in the State or country in which the individual provides the health care. The term includes, but is not limited to, a physician, physician assistant, psychologist, chiropractor, registered nurse, licensed vocational nurse, licensed practical nurse, and physical or occupational therapist; or (ii) A nursing assistant or home health aide who is supervised by a licensed health care provider as defined in paragraph (b)(1)(i) of this section. (2) Activities of daily living (ADLs) Transferring (3) Instrumental activities of daily living (IADLs) (4) Custodial care (i) Assistance with two or more ADLs; or (ii) Supervision because an individual with a physical, mental, developmental, or cognitive disorder requires care or assistance on a regular basis to protect the individual from hazards or dangers incident to his or her daily environment. (5) Nursing home (6) Medical foster home (7) Care facility other than a nursing home (8) Needs A&A or is housebound (i) Veteran; (ii) Surviving spouse; (iii) Parent (for parents' DIC purposes); or (iv) Spouse of a living veteran with a service-connected disability rated at least 30 percent disabling, who is receiving pension. (c) Medical expenses for VA purposes. (1) Care by a health care provider. (2) Medications, medical supplies, medical equipment, and medical food, vitamins, and supplements. (3) Adaptive equipment. (4) Transportation expenses. www.gsa.gov www.benefits.va.gov/pension/. (i) Example. (ii) [Reserved] (5) Health insurance premiums. (6) Smoking cessation products. (7) Institutional forms of care and in-home care. (d) Institutional forms of care and in-home care. (1) Hospitals, nursing homes, medical foster homes, and inpatient treatment centers. (2) In-home care. (i) The disabled individual needs A&A or is housebound; or (ii) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual requires the health care or custodial care that the in-home attendant provides. (3) Care facilities other than nursing homes. (ii) Payments for health care provided by a health care provider are medical expenses. (iii) The provider does not need to be a health care provider, and payments for assistance with ADLs and IADLs are medical expenses, if the disabled individual is receiving health care or custodial care in the facility and— (A) The disabled individual needs A&A or is housebound; or (B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that, due to a physical, mental, developmental, or cognitive disorder, the individual needs to be in a protected environment. (iv) Payments for meals and lodging (and other facility expenses not directly related to health care or custodial care) are medical expenses if: (A) The facility provides or contracts for health care or custodial care for the disabled individual; or (B) A physician, physician assistant, certified nurse practitioner, or clinical nurse specialist states in writing that the individual must reside in the facility (or a similar facility) to separately contract with a third-party provider to receive health care or custodial care or to receive (paid or unpaid) health care or custodial care from family or friends. (e) Non-medical expenses for VA purposes. (1) Maintenance of general health. (2) Cosmetic procedures. (3) Meals and lodging. (4) Assistance with IADLs. CROSS REFERENCES: (Authority: 38 U.S.C. 501(a), 1315(f)(3), 1503(a)(8), 1506(1)) (The Office of Management and Budget has approved the information collection requirement in this section under control numbers 2900-0002, 2900-0004, and 2900-0161) [83 FR 47272, Sept. 18, 2018] § 3.279 Statutory exclusions from income or assets (net worth or corpus of the estate). This section sets forth payments that Federal statutes exclude from income for the purpose of determining entitlement to any VA-administered benefit that is based on financial need. Some of the exclusions also apply to assets (pension), also known as net worth or the corpus of the estate (section 306 pension and parents as dependents for compensation). VA will exclude from income or assets any amount designated by statute as not countable as income or resources, regardless of whether or not it is listed in this section. Program or payment Income Assets Authority (a) COMPENSATION OR RESTITUTION PAYMENTS: (1) Relocation payments. Excluded Included 42 U.S.C. 4636. (2) Crime victim compensation. Excluded Excluded 42 U.S.C. 10602(c). (3) Restitution to individuals of Japanese ancestry. Excluded Excluded 50 U.S.C. App. 1989b-4(f). (4) Victims of Nazi persecution. Excluded Excluded 42 U.S.C. 1437a note. (5) Agent Orange settlement payments. Excluded Excluded Sec. 1, Public Law 101-201. (6) Chapter 18 benefits. Excluded Excluded 38 U.S.C. 1833(c). (7) Flood mitigation activities. Excluded Excluded 42 U.S.C. 4031. (b) PAYMENTS TO NATIVE AMERICANS: (1) Indian Tribal Judgment Fund distributions. Excluded Excluded 25 U.S.C. 1407. (2) Interests of individual Indians in trust or restricted lands. Excluded Excluded 25 U.S.C. 1408. (3) Per Capita Distributions Act. Excluded Excluded 25 U.S.C. 117b, (4) Submarginal land. Excluded Excluded 25 U.S.C. 459e. (5) Old Age Assistance Claims Settlement Act. Excluded Excluded 25 U.S.C. 2307. (6) Alaska Native Claims Settlement Act. Excluded Excluded 43 U.S.C. 1626(c). (i) Cash, including cash dividends on stocks and bonds, up to a maximum of $2,000 per year; (ii) Stock, including stock issued as a dividend or distribution; (iii) Bonds that are subject to the protection under 43 U.S.C. 1606(h) until voluntarily and expressly sold or pledged by the shareholder after the date of distribution; (iv) A partnership interest; (v) Land or an interest in land, including land received as a dividend or distribution on stock; (vi) An interest in a settlement trust. (7) Maine Indian Claims Settlement Act. Excluded Excluded 25 U.S.C. 1728. (8) Cobell Settlement. Cobell Salazar, Excluded for one year Excluded for one year Sec. 101, Public Law 111-291. (c) WORK-RELATED PAYMENTS: (1) Workforce investment. Excluded Included 29 U.S.C. 3241(a)(2). (2) AmeriCorps participants. Excluded Included 42 U.S.C. 12637(d). (3) Volunteer work. et seq. Excluded Excluded 42 U.S.C. 5044(f). (d) MISCELLANEOUS PAYMENTS: (1) Income tax refunds. Excluded Excluded for one year 26 U.S.C. 6409. (2) Food stamps. Excluded Excluded 7 U.S.C. 2017(b). (3) Food for children. Excluded Excluded 42 U.S.C. 1780(b). (4) Child care. Excluded Included 42 U.S.C. 9858q. (5) Services for housing recipients. Excluded Included 42 U.S.C. 8011(j)(2). (6) Home energy assistance. Excluded Excluded 42 U.S.C. 8624(f). (7) Programs for older Americans. Excluded Included 42 U.S.C. 3020a(b). (8) Student financial aid. Excluded Excluded 20 U.S.C. 1087uu, 2414(a). (9) Retired Serviceman's Family Protection Plan annuities. Excluded Included 10 U.S.C. 1441. (Authority: 38 U.S.C. 501(a)) [83 FR 47274, Sept. 18, 2018] Ratings and Evaluations; Basic Entitlement Considerations § 3.300 Claims based on the effects of tobacco products. (a) For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service. For the purpose of this section, the term “tobacco products” means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco. (b) The provisions of paragraph (a) of this section do not prohibit service connection if: (1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For purposes of this section, “otherwise shown” means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or (2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§ 3.307, 3.309, 3.313, or 3.316; or (3) Secondary service connection is established for ischemic heart disease or other cardiovascular disease under § 3.310(b). (c) For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under § 3.310(a). (Authority: 38 U.S.C. 501(a), 1103, 1103 note) [66 FR 18198, Apr. 6, 2001] § 3.301 Line of duty and misconduct. (a) Line of duty. (Authority: 38 U.S.C. 105) (b) Willful misconduct. (Authority: 38 U.S.C. 1521) (c) Specific applications; willful misconduct. (Authority: 38 U.S.C. 501) (1) Venereal disease. i.e. willful misconduct not in line of duty (2) The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. (See §§ 21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) (Authority: 38 U.S.C. 501) (3) Drug usage. (Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, and 1521(a)) (d) Line of duty; abuse of alcohol or drugs. (Authority: 38 U.S.C. 105(a)) Cross References: In line of duty. See § 3.1(m). Willful misconduct. See § 3.1(n). Extended period of eligibility. See §§ 21.1043 and 21.7051. Periods of entitlement. See § 21.5041. [26 FR 1579, Feb. 24, 1961, as amended at 37 FR 24662, Nov. 18, 1972; 54 FR 31951, Aug. 3, 1989; 55 FR 13530, Apr. 11, 1990; 60 FR 27408, May 24, 1995; 87 FR 26125, May 3, 2022] § 3.302 Service connection for mental unsoundness in suicide. (a) General. (2) A person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct). (3) It is a constant requirement for favorable action that the precipitating mental unsoundness be service connected. (b) Evidence of mental condition. (2) The act of suicide or a bona fide attempt is considered to be evidence of mental unsoundness. Therefore, where no reasonable adequate motive for suicide is shown by the evidence, the act will be considered to have resulted from mental unsoundness. (3) A reasonable adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction. (c) Evaluation of evidence. (2) In all instances any reasonable doubt should be resolved favorably to support a finding of service connection (see § 3.102). Cross Reference: Cause of death. See § 3.312. [28 FR 183, Jan. 8, 1963, as amended at 54 FR 31951, Aug. 3, 1989; 55 FR 13530, Apr. 11, 1990] Ratings and Evaluations; Service Connection § 3.303 Principles relating to service connection. (a) General. (b) Chronicity and continuity. (c) Preservice disabilities noted in service. (d) Postservice initial diagnosis of disease. [26 FR 1579, Feb. 24, 1961] § 3.304 Direct service connection; wartime and peacetime. (a) General. (b) Presumption of soundness. (Authority: 38 U.S.C. 1111) (1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. (2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. (3) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. (Authority: 10 U.S.C. 1219) (c) Development. (d) Combat. (Authority: 38 U.S.C. 1154(b)) (e) Prisoners of war. (f) Posttraumatic stress disorder. (1) If the evidence establishes a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (2) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (4) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. (5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. (Authority: 38 U.S.C. 501(a), 1154) [26 FR 1580, Feb. 24, 1961, as amended at 31 FR 4680, Mar. 19, 1966; 39 FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, June 18, 1999; 67 FR 10332, Mar. 7, 2002; 70 FR 23029, May 4, 2005; 73 FR 64210, Oct. 29, 2008; 75 FR 39852, July 13, 2010] § 3.305 Direct service connection; peacetime service before January 1, 1947. (a) General. (b) Presumption of soundness. (c) Campaigns and expeditions. [26 FR 1580, Feb. 24, 1961, as amended at 28 FR 3088, Mar. 29, 1963; 39 FR 34530, Sept. 26, 1974] § 3.306 Aggravation of preservice disability. (a) General. (Authority: 38 U.S.C. 1153) (b) Wartime service; peacetime service after December 31, 1946. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. (Authority: 38 U.S.C. 1154) (c) Peacetime service prior to December 7, 1941. [26 FR 1580, Feb. 24, 1961, as amended at 57 FR 59296, Dec. 15, 1992; 87 FR 26125, May 3, 2022] § 3.307 Presumptive service connection for chronic, tropical, or prisoner-of-war related disease, disease associated with exposure to certain herbicide agents, or disease associated with exposure to contaminants in the water supply at Camp Lejeune; wartime and service on or after January 1, 1947. (a) General. (1) Service. (2) Separation from service. (3) Chronic disease. (4) Tropical disease. (Authority: 38 U.S.C. 1112) (5) Diseases specific as to former prisoners of war. (Authority: 38 U.S.C. 1112) (6) Diseases associated with exposure to certain herbicide agents. (Authority: 38 U.S.C. 1116(a)(4)) (ii) The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early-onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. (iii) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. (iv) A veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See also (v) An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. (7) Diseases associated with exposure to contaminants in the water supply at Camp Lejeune. contaminants in the water supply (ii) The diseases listed in § 3.309(f) shall have become manifest to a degree of 10 percent or more at any time after service. (iii) A veteran, or former reservist or member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. The last date on which such a veteran, or former reservist or member of the National Guard, shall be presumed to have been exposed to contaminants in the water supply shall be the last date on which he or she served at Camp Lejeune during the period beginning on August 1, 1953, and ending on December 31, 1987. For purposes of this section, service at Camp Lejeune (iv) Exposure described in paragraph (a)(7)(iii) of this section is an injury under 38 U.S.C. 101(24)(B) and (C). If an individual described in paragraph (a)(7)(iii) of this section develops a disease listed in § 3.309(f), VA will presume that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. (Authority: 38 U.S.C. 501(a), 1116(a)(3), and 1821) (b) Evidentiary basis. (Authority: 38 U.S.C. 1112) (c) Prohibition of certain presumptions. (d) Rebuttal of service incurrence or aggravation. (2) The presumption of aggravation provided in this section may be rebutted by affirmative evidence that the preexisting condition was not aggravated by service, which may include affirmative evidence that any increase in disability was due to an intercurrent disease or injury suffered after separation from service or evidence sufficient, under § 3.306 of this part, to show that the increase in disability was due to the natural progress of the preexisting condition. (Authority: 38 U.S.C. 101(24), 501(a), 1116(a)(3), and 1821) [26 FR 1581, Feb. 24, 1961, as amended at 35 FR 18281, Dec. 1, 1970; 39 FR 34530, Sept. 26, 1974; 43 FR 45347, Oct. 2, 1978; 47 FR 11655, Mar. 18, 1982; 58 FR 29109, May 19, 1993; 59 FR 5106, Feb. 3, 1994; 59 FR 29724, June 9, 1994; 61 FR 57588, Nov. 7, 1996; 62 FR 35422, July 1, 1997; 67 FR 67793, Nov. 7, 2002; 68 FR 34541, June 10, 2003; 76 FR 4248, Jan. 25, 2011; 78 FR 54766, Sept. 6, 2013; 80 FR 35248, June 19, 2015; 82 FR 4184, Jan. 13, 2017] § 3.308 Presumptive service connection; peacetime service before January 1, 1947. (a) Chronic disease. (b) Tropical disease. (Authority: 38 U.S.C. 1133) [39 FR 34530, Sept. 26, 1974] § 3.309 Disease subject to presumptive service connection. (a) Chronic diseases. Anemia, primary. Arteriosclerosis. Arthritis. Atrophy, progressive muscular. Brain hemorrhage. Brain thrombosis. Bronchiectasis. Calculi of the kidney, bladder, or gallbladder. Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.) Cirrhosis of the liver. Coccidioidomycosis. Diabetes mellitus. Encephalitis lethargica residuals. Endocarditis. (This term covers all forms of valvular heart disease.) Endocrinopathies. Epilepsies. Hansen's disease. Hodgkin's disease. Leukemia. Lupus erythematosus, systemic. Myasthenia gravis. Myelitis. Myocarditis. Nephritis. Other organic diseases of the nervous system. Osteitis deformans (Paget's disease). Osteomalacia. Palsy, bulbar. Paralysis agitans. Psychoses. Purpura idiopathic, hemorrhagic. Raynaud's disease. Sarcoidosis. Scleroderma. Sclerosis, amyotrophic lateral. Sclerosis, multiple. Syringomyelia. Thromboangiitis obliterans (Buerger's disease). Tuberculosis, active. Tumors, malignant, or of the brain or spinal cord or peripheral nerves. Ulcers, peptic (gastric or duodenal) (A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. (b) Tropical diseases. Amebiasis. Blackwater fever. Cholera. Dracontiasis. Dysentery. Filariasis. Leishmaniasis, including kala-azar. Loiasis. Malaria. Onchocerciasis. Oroya fever. Pinta. Plague. Schistosomiasis. Yaws. Yellow fever. Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof. (c) Diseases specific as to former prisoners of war. Psychosis. Any of the anxiety states. Dysthymic disorder (or depressive neurosis). Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite. Post-traumatic osteoarthritis. Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia). Stroke and its complications. On or after October 10, 2008, Osteoporosis, if the Secretary determines that the veteran has posttraumatic stress disorder (PTSD). (2) If the veteran: (i) Is a former prisoner of war and; (ii) Was interned or detained for not less than 30 days, the following diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, air or space service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. Avitaminosis. Beriberi (including beriberi heart disease). Chronic dysentery. Helminthiasis. Malnutrition (including optic atrophy associated with malnutrition). Pellagra. Any other nutritional deficiency. Irritable bowel syndrome. Peptic ulcer disease. Peripheral neuropathy except where directly related to infectious causes. Cirrhosis of the liver. On or after September 28, 2009, Osteoporosis. (Authority: 38 U.S.C. 1112(b)) (d) Diseases specific to radiation-exposed veterans. (2) The diseases referred to in paragraph (d)(1) of this section are the following: (i) Leukemia (other than chronic lymphocytic leukemia). (ii) Cancer of the thyroid. (iii) Cancer of the breast. (iv) Cancer of the pharynx. (v) Cancer of the esophagus. (vi) Cancer of the stomach. (vii) Cancer of the small intestine. (viii) Cancer of the pancreas. (ix) Multiple myeloma. (x) Lymphomas (except Hodgkin's disease). (xi) Cancer of the bile ducts. (xii) Cancer of the gall bladder. (xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated). (xiv) Cancer of the salivary gland. (xv) Cancer of the urinary tract. (xvi) Bronchiolo-alveolar carcinoma. (xvii) Cancer of the bone. (xviii) Cancer of the brain. (xix) Cancer of the colon. (xx) Cancer of the lung. (xxi) Cancer of the ovary. Note: For the purposes of this section, the term “urinary tract” means the kidneys, renal pelves, ureters, urinary bladder, and urethra. (Authority: 38 U.S.C. 1112(c)(2)) (3) For purposes of this section: (i) The term radiation-exposed veteran (ii) The term radiation-risk activity (A) Onsite participation in a test involving the atmospheric detonation of a nuclear device. (B) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946. (C) Internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946. (D)( 1 ( i ( ii ( 2 ( 3 (E) Service in a capacity which, if performed as an employee of the Department of Energy, would qualify the individual for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000 (42 U.S.C. 7384l(14)). (F) Cleanup of Enewetak Atoll during the period beginning on January 1,1977, and ending on December 31, 1980. (G) Onsite participation in the response effort following the collision of a United States Air Force B-52 bomber and refueling plane that caused the release of four thermonuclear weapons in the vicinity of Palomares, Spain, during the period beginning January 17, 1966, and ending March 31, 1967. (H) Onsite participation in the response effort following the on-board fire and crash of a United States Air Force B-52 bomber that caused the release of four thermonuclear weapons in the vicinity of Thule Air Force Base, Greenland, during the period beginning January 21, 1968, and ending September 25, 1968. (iii) The term atmospheric detonation (iv) The term onsite participation (A) During the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test. (B) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test. (C) Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959. (D) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads. (v) For tests conducted by the United States, the term operational period (A) For Operation TRINITY (B) For Operation CROSSROADS (C) For Operation SANDSTONE (D) For Operation RANGER (E) For Operation GREENHOUSE (F) For Operation BUSTER-JANGLE (G) For Operation TUMBLER-SNAPPER (H) For Operation IVY (I) For Operation UPSHOT-KNOTHOLE (J) For Operation CASTLE (K) For Operation TEAPOT (L) For Operation WIGWAM (M) For Operation REDWING (N) For Operation PLUMBBOB (O) For Operation HARDTACK I (P) For Operation ARGUS (Q) For Operation HARDTACK II (R) For Operation DOMINIC I (S) For Operation DOMINIC II/PLOWSHARE (vi) The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials. (vii) Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces shall include those who, at any time during the period August 6, 1945, through July 1, 1946: (A) Were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki, or (B) Can affirmatively show they worked within the areas set forth in paragraph (d)(3)(vii)(A) of this section although not interned within those areas, or (C) Served immediately following internment in a capacity which satisfies the definition in paragraph (d)(3)(vi) of this section, or (D) Were repatriated through the port of Nagasaki. (Authority: 38 U.S.C. 1110, 1112, 1131) (e) Disease associated with exposure to certain herbicide agents. AL amyloidosis Chloracne or other acneform disease consistent with chloracne Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes) Hodgkin's disease Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina) All chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia) Multiple myeloma Non-Hodgkin's lymphoma Parkinson's disease Early-onset peripheral neuropathy Porphyria cutanea tarda Prostate cancer Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) Note 1: The term “soft-tissue sarcoma” includes the following: Adult fibrosarcoma Dermatofibrosarcoma protuberans Malignant fibrous histiocytoma Liposarcoma Leiomyosarcoma Epithelioid leiomyosarcoma (malignant leiomyoblastoma) Rhabdomyosarcoma Ectomesenchymoma Angiosarcoma (hemangiosarcoma and lymphangiosarcoma) Proliferating (systemic) angioendotheliomatosis Malignant glomus tumor Malignant hemangiopericytoma Synovial sarcoma (malignant synovioma) Malignant giant cell tumor of tendon sheath Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas Malignant mesenchymoma Malignant granular cell tumor Alveolar soft part sarcoma Epithelioid sarcoma Clear cell sarcoma of tendons and aponeuroses Extraskeletal Ewing's sarcoma Congenital and infantile fibrosarcoma Malignant ganglioneuroma Note 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. (f) Disease associated with exposure to contaminants in the water supply at Camp Lejeune. (1) Kidney cancer. (2) Liver cancer. (3) Non-Hodgkin's lymphoma. (4) Adult leukemia. (5) Multiple myeloma. (6) Parkinson's disease. (7) Aplastic anemia and other myelodysplastic syndromes. (8) Bladder cancer. (Authority: 38 U.S.C. 501(a) and 1112(b)) [41 FR 55873, Dec. 23, 1976] Editorial Note: For Federal Register www.govinfo.gov. § 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury. (a) General. (b) Aggravation of nonservice-connected disabilities. (Authority: 38 U.S.C. 1110 and 1131) (c) Cardiovascular disease. (d) Traumatic brain injury. (i) Parkinsonism, including Parkinson's disease, following moderate or severe TBI; (ii) Unprovoked seizures following moderate or severe TBI; (iii) Dementias of the following types: presenile dementia of the Alzheimer type, frontotemporal dementia, and dementia with Lewy bodies, if manifest within 15 years following moderate or severe TBI; (iv) Depression if manifest within 3 years of moderate or severe TBI, or within 12 months of mild TBI; or (v) Diseases of hormone deficiency that result from hypothalamo-pituitary changes if manifest within 12 months of moderate or severe TBI. (2) Neither the severity levels nor the time limits in paragraph (d)(1) of this section preclude a finding of service connection for conditions shown by evidence to be proximately due to service-connected TBI. If a claim does not meet the requirements of paragraph (d)(1) with respect to the time of manifestation or the severity of the TBI, or both, VA will develop and decide the claim under generally applicable principles of service connection without regard to paragraph (d)(1). (3)(i) For purposes of this section VA will use the following table for determining the severity of a TBI: Mild Moderate Severe Normal structural imaging Normal or abnormal structural imaging Normal or abnormal structural imaging. LOC = 0-30 min LOC > 30 min and < 24 hours LOC > 24 hrs. AOC = a moment up to 24 hrs AOC > 24 hours. Severity based on other criteria. PTA = 0-1 day PTA > 1 and < 7 days PTA > 7 days. GCS = 13-15 GCS = 9-12 GCS = 3-8. Note: The factors considered are: Structural imaging of the brain. LOC—Loss of consciousness. AOC—Alteration of consciousness/mental state. PTA—Post-traumatic amnesia. GCS—Glasgow Coma Scale. (For purposes of injury stratification, the Glasgow Coma Scale is measured at or after 24 hours.) (ii) The determination of the severity level under this paragraph is based on the TBI symptoms at the time of injury or shortly thereafter, rather than the current level of functioning. VA will not require that the TBI meet all the criteria listed under a certain severity level in order to classify the TBI at that severity level. If a TBI meets the criteria in more than one category of severity, then VA will rank the TBI at the highest level in which a criterion is met, except where the qualifying criterion is the same at both levels. (Authority: 38 U.S.C. 501, 1110 and 1131) [44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001; 71 FR 52747, Sept. 7, 2006; 78 FR 76208, Dec. 17, 2013] § 3.311 Claims based on exposure to ionizing radiation. (a) Determinations of exposure and dose Dose assessment. (Authority: 38 U.S.C. 501) (2) Request for dose information. (i) Atmospheric nuclear weapons test participation claims. (ii) Hiroshima and Nagasaki occupation claims. (iii) Other exposure claims. (3) Referral to independent expert. (i) The difference between the claimant's estimate and dose data derived from official military records shall ordinarily be considered material if one estimate is at least double the other estimate. (ii) A dose estimate shall be considered from a “credible source” if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim. (4) Exposure. (i) If military records do not establish presence at or absence from a site at which exposure to radiation is claimed to have occurred, the veteran's presence at the site will be conceded. (ii) Neither the veteran nor the veteran's survivors may be required to produce evidence substantiating exposure if the information in the veteran's service records or other records maintained by the Department of Defense is consistent with the claim that the veteran was present where and when the claimed exposure occurred. (b) Initial review of claims. (i) A veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946, or other activities as claimed; (ii) The veteran subsequently developed a radiogenic disease; and (iii) Such disease first became manifest within the period specified in paragraph (b)(5) of this section; before its adjudication the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with paragraph (c) of this section. If any of the foregoing 3 requirements has not been met, it shall not be determined that a disease has resulted from exposure to ionizing radiation under such circumstances. (2) For purposes of this section the term “radiogenic disease” means a disease that may be induced by ionizing radiation and shall include the following: (i) All forms of leukemia except chronic lymphatic (lymphocytic) leukemia; (ii) Thyroid cancer; (iii) Breast cancer; (iv) Lung cancer; (v) Bone cancer; (vi) Liver cancer; (vii) Skin cancer; (viii) Esophageal cancer; (ix) Stomach cancer; (x) Colon cancer; (xi) Pancreatic cancer; (xii) Kidney cancer; (xiii) Urinary bladder cancer; (xiv) Salivary gland cancer; (xv) Multiple myeloma; (xvi) Posterior subcapsular cataracts; (xvii) Non-malignant thyroid nodular disease; (xviii) Ovarian cancer; (xix) Parathyroid adenoma; (xx) Tumors of the brain and central nervous system; (xxi) Cancer of the rectum; (xxii) Lymphomas other than Hodgkin's disease; (xxiii) Prostate cancer; and (xxiv) Any other cancer. (Authority: 38 U.S.C. 501) (3) Public Law 98-542 requires VA to determine whether sound medical and scientific evidence supports establishing a rule identifying polycythemia vera as a radiogenic disease. VA has determined that sound medical and scientific evidence does not support including polycythemia vera on the list of known radiogenic diseases in this regulation. Even so, VA will consider a claim based on the assertion that polycythemia vera is a radiogenic disease under the provisions of paragraph (b)(4) of this section. (Authority: Pub. L. 98-542, section 5(b)(2)(A)(i), (iii)). (4) If a claim is based on a disease other than one of those listed in paragraph (b)(2) of this section, VA shall nevertheless consider the claim under the provisions of this section provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. (5) For the purposes of paragraph (b)(1) of this section: (i) Bone cancer must become manifest within 30 years after exposure; (ii) Leukemia may become manifest at any time after exposure; (iii) Posterior subcapsular cataracts must become manifest 6 months or more after exposure; and (iv) Other diseases specified in paragraph (b)(2) of this section must become manifest 5 years or more after exposure. (Authority: 38 U.S.C. 501; Pub. L. 98-542) (c) Review by Under Secretary for Benefits. (i) If after such consideration the Under Secretary for Benefits is convinced sound scientific and medical evidence supports the conclusion it is at least as likely as not the veteran's disease resulted from exposure to radiation in service, the Under Secretary for Benefits shall so inform the regional office of jurisdiction in writing. The Under Secretary for Benefits shall set forth the rationale for this conclusion, including an evaluation of the claim under the applicable factors specified in paragraph (e) of this section. (ii) If the Under Secretary for Benefits determines there is no reasonable possibility that the veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall so inform the regional office of jurisidiction in writing, setting forth the rationale for this conclusion. (2) If the Under Secretary for Benefits, after considering any opinion of the Under Secretary for Health, is unable to conclude whether it is at least as likely as not, or that there is no reasonable possibility, the veteran's disease resulted from radiation exposure in service, the Under Secretary for Benefits shall refer the matter to an outside consultant in accordance with paragraph (d) of this section. (3) For purposes of paragraph (c)(1) of this section, “sound scientific evidence” means observations, findings, or conclusions which are statistically and epidemiologically valid, are statistically significant, are capable of replication, and withstand peer review, and “sound medical evidence” means observations, findings, or conclusions which are consistent with current medical knowledge and are so reasonable and logical as to serve as the basis of management of a medical condition. (d) Referral to outside consultants. (2) The request for opinion shall be in writing and shall include a description of: (i) The disease, including the specific cell type and stage, if known, and when the disease first became manifest; (ii) The circumstances, including date, of the veteran's exposure; (iii) The veteran's age, gender, and pertinent family history; (iv) The veteran's history of exposure to known carcinogens, occupationally or otherwise; (v) Evidence of any other effects radiation exposure may have had on the veteran; and (vi) Any other information relevant to determination of causation of the veteran's disease. The Under Secretary for Benefits shall forward, with the request, copies of pertinent medical records and, where available, dose assessments from official sources, from credible sources as defined in paragraph (a)(3)(ii) of this section, and from an independent expert pursuant to paragraph (a)(3) of this section. (3) The consultant shall evaluate the claim under the factors specified in paragraph (e) of this section and respond in writing, stating whether it is either likely, unlikely, or approximately as likely as not the veteran's disease resulted from exposure to ionizing radiation in service. The response shall set forth the rationale for the consultant's conclusion, including the consultant's evaluation under the applicable factors specified in paragraph (e) of this section. The Under Secretary for Benefits shall review the consultant's response and transmit it with any comments to the regional office of jurisdiction for use in adjudication of the claim. (e) Factors for consideration. (1) The probable dose, in terms of dose type, rate and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation; (2) The relative sensitivity of the involved tissue to induction, by ionizing radiation, of the specific pathology; (3) The veteran's gender and pertinent family history; (4) The veteran's age at time of exposure; (5) The time-lapse between exposure and onset of the disease; and (6) The extent to which exposure to radiation, or other carcinogens, outside of service may have contributed to development of the disease. (f) Adjudication of claim. (g) Willful misconduct and supervening cause. (Authority: Pub. L. 98-542) [50 FR 34459, Aug. 26, 1985, as amended at 54 FR 42803, Oct. 18, 1989; 58 FR 16359, Mar. 26, 1993. Redesignated at 59 FR 5107, Feb. 3, 1994, and amended at 59 FR 45975, Sept. 6, 1994; 60 FR 9628, Feb. 21, 1995; 60 FR 53277, Oct. 13, 1995; 63 FR 50994, Sept. 24, 1998; 67 FR 6871, Feb. 14, 2002] § 3.312 Cause of death. (a) General. (b) Principal cause of death. (c) Contributory cause of death. (2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions. (3) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed. (4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature. Cross References: Reasonable doubt. See § 3.102. Service connection for mental unsoundness in suicide. See § 3.302. [26 FR 1582, Feb. 24, 1961, as amended at 54 FR 34981, Aug. 23, 1989; 54 FR 42803, Oct. 18, 1989] § 3.313 Claims based on service in Vietnam. (a) Service in Vietnam. Service in Vietnam (b) Service connection based on service in Vietnam. (Authority: 38 U.S.C. 501) [55 FR 43124, Oct. 26, 1990] § 3.314 Basic pension determinations. (a) Prior to the Mexican border period. (1) Claims based on service of less than 90 days in the Spanish-American War require a rating determination as to whether the veteran was discharged or released from service for a service-connected disability or had at the time of separation from service a service-connected disability, shown by official service records, which in medical judgment would have warranted a discharge for disability. Eligibility in such cases requires a finding that the disability was incurred in or aggravated by service in line of duty without benefit of presumptive provisions of law or Department of Veterans Affairs regulations. (Authority: 38 U.S.C. 1512) (2) Veterans entitled to pension on the basis of service in the Spanish-American War may be entitled to an increased rate of pension if rated as being in need of regular aid and attendance. Veterans who have elected pension under Pub. L. 86-211 (73 Stat. 432) who are not rated as being in need of regular aid and attendance may be entitled to increased pension based on 100 percent permanent disability together with independent disability of 60 percent or more or by reason of being permanently housebound as provided in § 3.351 (d). (Authority: 38 U.S.C. 1502 (b), (c), 512) (b) Mexican border period and later war periods. (1) Claims based on service of less than 90 days may require a determination as to whether the veteran was discharged or released from service for a service-connected disability or had at the time of separation from service a service-connected disability, shown by official service records, which in medical judgment would have warranted a discharge for disability. Eligibility in such cases requires a finding that the disability was incurred in or aggravated by service in line of duty without benefit of presumptive provisions of law or Department of Veterans Affairs regulations (38 U.S.C. 1521(g)(2)) unless, in the case of survivors pension, the veteran was, at the time of death, receiving (or entitled to receive) compensation or retirement pay based upon a wartime service-connected disability. (Authority: 38 U.S.C. 1541(a) and 1542(a)) (2) Determinations of permanent total disability for pension purposes will be based on non-service-connected disability or combined non-service-connected and service-connected disabilities not the result of willful misconduct. However, for pension under Pub. L. 86-211 (73 Stat. 432), permanent and total disability will be presumed where the veteran has attained age 65 or effective January 1, 1977, where the veteran became unemployable after age 65. (Authority: 38 U.S.C. 1502(a), 1523(a)) (3) Veterans entitled to nonservice-connected disability pension may be entitled to an increased rate of pension if rated as being in need of regular aid and attendance. Veterans entitled to protected pension or pension under Pub. L. 86-211 (73 Stat. 432) who are not rated as being in need of regular aid and attendance may be entitled to increased pension based on a 100 percent permanent disability together with independent disability of 60 percent or more or by reason of being permanently housebound as provided in § 3.351 (d) or (e). (Authority: 38 U.S.C. 1502 (b), (c), 1521) [31 FR 4680, Mar. 19, 1966, as amended at 32 FR 13224, Sept. 19, 1967; 36 FR 8446, May 6, 1971; 40 FR 56434, Dec. 3, 1975; 41 FR 56804, Dec. 30, 1976; 61 FR 20438, May 7, 1996] § 3.315 Basic eligibility determinations; dependents, loans, education. (a) Child over 18 years. (Authority: 38 U.S.C. 101(4)(B)) (b) Loans. (Authority: 38 U.S.C. 3702, 3707) (c) Veterans' educational assistance. (i) The veteran applies for benefits under 38 U.S.C. chapter 32, the minimum active duty service requirements of 38 U.S.C. 5303A apply to him or her, and the veteran would be eligible for such benefits only if— (A) He or she was discharged or released from active duty for a disability incurred or aggravated in line of duty, or (B) He or she has a disability that VA has determined to be compensable under 38 U.S.C. chapter 11; or (ii) The veteran applies for benefits under 38 U.S.C. chapter 30 and— (A) The evidence of record does not clearly show either that the veteran was discharged or released from active duty for disability or that the veteran's discharge or release from active duty was unrelated to disability, and (B) The veteran is eligible for basic educational assistance except for the minimum length of active duty service requirements of § 21.7042(a) or § 21.7044(a) of this chapter. (2) A determination is required as to whether a veteran was discharged or released from service in the Selected Reserve for a service-connected disability or for a medical condition which preexisted the veteran's having become a member of the Selected Reserve and which VA determines is not service connected when the veteran applies for benefits under 38 U.S.C. chapter 30 and— (i) Either the veteran would be eligible for basic educational assistance under that chapter only if he or she was discharged from the Selected Reserve for a service-connected disability, or for a medical condition which preexisted the veteran's having become a member of the Selected Reserve and which VA finds is not service connected, or (ii) The veteran is entitled to basic educational assistance and would be entitled to receive it at the rates stated in § 21.7136(a) or § 21.7137(a) of this chapter only if he or she was discharged from the Selected Reserve for a service-connected disability or for a medical condition which preexisted the veteran's having become a member of the Selected Reserve and which VA finds is not service connected. (3) A determination is required as to whether a reservist has been unable to pursue a program of education due to a disability which has been incurred in or aggravated by service in the Selected Reserve when— (i) The reservist is otherwise entitled to educational assistance under 10 U.S.C. chapter 1606, and (ii) He or she applies for an extension of his or her eligibility period. (4) The determinations required by paragraphs (c)(1) through (c)(3) of this section are subject to the presumptions of incurrence under § 3.304(b) and aggravation under § 3.306 (a) and (c) of this part, based on service rendered after May 7, 1975. (Authority: 38 U.S.C. 3011(a)(1)(A)(ii), 3012(b)(1), 3202(1)(A), 10 U.S.C. 16133(b)) [38 FR 871, Jan. 5, 1973, as amended at 42 FR 22869, May 5, 1977; 50 FR 53315, Dec. 31, 1985; 51 FR 1510, Jan. 14, 1986; 55 FR 25974, June 26, 1990; 61 FR 67950, Dec. 26, 1996] § 3.316 Claims based on chronic effects of exposure to mustard gas and Lewisite. (a) Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below together with the subsequent development of any of the indicated conditions is sufficient to establish service connection for that condition: (1) Full-body exposure to nitrogen or sulfur mustard during active military service together with the subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: Nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease. (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. (b) Service connection will not be established under this section if the claimed condition is due to the veteran's own willful misconduct (See § 3.301(c)) or there is affirmative evidence that establishes a nonservice-related supervening condition or event as the cause of the claimed condition (See § 3.303). [59 FR 42499, Aug. 18, 1994] § 3.317 Compensation for certain disabilities occurring in Persian Gulf veterans. (a) Compensation for disability due to undiagnosed illness and medically unexplained chronic multisymptom illnesses. (i) Became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2026; and (ii) By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. (2)(i) For purposes of this section, a qualifying chronic disability (A) An undiagnosed illness; (B) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: ( 1 ( 2 ( 3 Note to paragraph ( a i 3 Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. (ii) For purposes of this section, the term medically unexplained chronic multisymptom illness (3) For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. (4) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. (5) A qualifying chronic disability referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. (6) A qualifying chronic disability referred to in this section shall be considered service connected for purposes of all laws of the United States. (7) Compensation shall not be paid under this section for a chronic disability: (i) If there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (ii) If there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (iii) If there is affirmative evidence that the disability is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (b) Signs or symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses. (1) Fatigue. (2) Signs or symptoms involving skin. (3) Headache. (4) Muscle pain. (5) Joint pain. (6) Neurological signs or symptoms. (7) Neuropsychological signs or symptoms. (8) Signs or symptoms involving the respiratory system (upper or lower). (9) Sleep disturbances. (10) Gastrointestinal signs or symptoms. (11) Cardiovascular signs or symptoms. (12) Abnormal weight loss. (13) Menstrual disorders. (c) Presumptive service connection for infectious diseases. (2) The diseases referred to in paragraph (c)(1) of this section are the following: (i) Brucellosis. (ii) Campylobacter jejuni. (iii) Coxiella burnetii (Q fever). (iv) Malaria. (v) Mycobacterium tuberculosis. (vi) Nontyphoid Salmonella. (vii) Shigella. (viii) Visceral leishmaniasis. (ix) West Nile virus. (3) The diseases listed in paragraph (c)(2) of this section will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(3)(i) and (ii) of this section even though there is no evidence of such disease during the period of service. (i) With three exceptions, the disease must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service as specified in paragraph (c)(3)(ii) of this section. Malaria must have become manifest to a degree of 10 percent or more within 1 year from the date of separation from a qualifying period of service or at a time when standard or accepted treatises indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more. (ii) For purposes of this paragraph (c), the term qualifying period of service (4) A disease listed in paragraph (c)(2) of this section shall not be presumed service connected: (i) If there is affirmative evidence that the disease was not incurred during a qualifying period of service; or (ii) If there is affirmative evidence that the disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from a qualifying period of service and the onset of the disease; or (iii) If there is affirmative evidence that the disease is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. (d) Long-term health effects potentially associated with infectious diseases. see (2) If a veteran presumed service connected for one of the diseases listed in paragraph (c)(2) of this section is diagnosed with one of the diseases listed in column “B” in the table within the time period specified for the disease in the same table, if a time period is specified or, otherwise, at any time, VA will request a medical opinion as to whether it is at least as likely as not that the condition was caused by the veteran having had the associated disease in column “A” in that same table. Table to § 3.317—Long-Term Health Effects Potentially Associated With Infectious Diseases A B Disease Brucellosis • Arthritis. • Cardiovascular, nervous, and respiratory system infections. • Chronic meningitis and meningoencephalitis. • Deafness. • Demyelinating meningovascular syndromes. • Episcleritis. • Fatigue, inattention, amnesia, and depression. • Guillain-Barré 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-Barré 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 • Chronic hepatitis. • Endocarditis. • Osteomyelitis. • Post-Q-fever chronic fatigue syndrome. • Vascular infection. Malaria • Demyelinating polyneuropathy. • Guillain-Barré syndrome. • Hematologic manifestations (particularly anemia after falciparum malaria and splenic rupture after vivax malaria). • Immune-complex glomerulonephritis. • Neurologic disease, neuropsychiatric disease, or both. • Ophthalmologic manifestations, particularly retinal hemorrhage and scarring. • Plasmodium falciparum. • Plasmodium malariae. • Plasmodium ovale. • Plasmodium vivax. • Renal disease, especially nephrotic syndrome. Mycobacterium tuberculosis • Active tuberculosis. • Long-term adverse health outcomes due to irreversible tissue damage from severe forms of pulmonary and extrapulmonary tuberculosis and active tuberculosis. Nontyphoid Salmonella • Reactive Arthritis if manifest within 3 months of the infection. Shigella • Hemolytic-uremic syndrome if manifest within 1 month of the infection. • Reactive Arthritis if manifest within 3 months of the infection. Visceral leishmaniasis • Delayed presentation of the acute clinical syndrome. • Post-kala-azar dermal leishmaniasis if manifest within 2 years of the infection. • Reactivation of visceral leishmaniasis in the context of future immunosuppression. West Nile virus • Variable physical, functional, or cognitive disability. (e) Service. (1) The term Persian Gulf veteran (2) The Southwest Asia theater of operations (Authority: 38 U.S.C. 1117, 1118) [75 FR 59970, Sept. 29, 2010, as amended at 75 FR 61356, Oct. 5, 2010; 75 FR 61997, Oct. 7, 2010; 76 FR 41698, July 15, 2011; 76 FR 81836, Dec. 29, 2011; 81 FR 71384, Oct. 17, 2016; 86 FR 51001, Sept. 14, 2021] § 3.318 Presumptive service connection for amyotrophic lateral sclerosis. (a) Except as provided in paragraph (b) of this section, the development of amyotrophic lateral sclerosis manifested at any time after discharge or release from active military, naval, air, or space service is sufficient to establish service connection for that disease. (b) Service connection will not be established under this section: (1) If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military, naval, or air service; (2) If there is affirmative evidence that amyotrophic lateral sclerosis is due to the veteran's own willful misconduct; or (3) If the veteran did not have active, continuous service of 90 days or more. (Authority: 38 U.S.C. 501(a)(1)) [73 FR 54693, Sept. 23, 2008, as amended at 87 FR 26126, May 3, 2022] § 3.319 [Reserved] § 3.320 Claims based on exposure to fine particulate matter. (a) Service connection based on presumed exposure to fine particulate matter General. (2) Chronic diseases associated with exposure to fine particulate matter. (i) Asthma. (ii) Rhinitis. (iii) Sinusitis, to include rhinosinusitis. (3) Rare cancers associated with exposure to fine particulate matter. (i) Squamous cell carcinoma of the larynx. (ii) Squamous cell carcinoma of the trachea. (iii) Adenocarcinoma of the trachea. (iv) Salivary gland-type tumors of the trachea. (v) Adenosquamous carcinoma of the lung. (vi) Large cell carcinoma of the lung. (vii) Salivary gland-type tumors of the lung. (viii) Sarcomatoid carcinoma of the lung. (ix) Typical and atypical carcinoid of the lung. (4) Presumption of exposure. (5) Qualifying period of service. qualifying period of service (i) The Southwest Asia theater of operations during the Persian Gulf War. (ii) Afghanistan, Syria, Djibouti, or Uzbekistan on or after September 19, 2001, during the Persian Gulf War. (6) Definitions. Southwest Asia theater of operations means (ii) The term Persian Gulf War (b) Exceptions. (1) The disease was not incurred during or aggravated by a qualifying period of service; or (2) The disease was caused by a supervening condition or event that occurred between the Veteran's most recent departure from a qualifying period of service and the onset of the disease; or (3) The disease is the result of the Veteran's own willful misconduct. (Authority: 38 U.S.C. 501(a)) [88 FR 60341, Sept. 1, 2023] § 3.320a Presumptive service connection for bladder, ureter, and related genitourinary cancers. (a) Presumption of exposure. (b) Presumption of service connection. (1) Urinary bladder cancer, including over-lapping sites of the bladder. (2) Ureter cancer, including the ureteric orifice, and urachus. (c) Covered Veteran. (1) On or after August 2, 1990, performed active military, naval, air, or space service while assigned to a duty station in, including airspace above (i) The Southwest Asia theater of operations as defined in § 3.317(e)(2); or (ii) Somalia; or (2) On or after September 11, 2001, performed active military, naval, air, or space service while assigned to a duty station in, including airspace above: (i) Afghanistan; (ii) Djibouti; (iii) Egypt; (iv) Jordan; (v) Lebanon; (vi) Syria; (vii) Yemen; or (viii) Uzbekistan. (d) Exceptions. (1) The disease was not incurred or aggravated during active military, naval, air, or space service; or (2) The disease was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active military, naval, air, or space service and the onset of the disease; or (3) The disease is the result of the Veteran's own willful misconduct. (Authority: 38 U.S.C. 501, 1119, 1120, 1174) [90 FR 29, Jan. 2, 2025] § 3.320b Presumptive service connection for leukemias, multiple myelomas, myelodysplastic syndromes, and myelofibrosis. (a) Presumption of exposure. (b) Presumption of service connection. (1) Acute leukemias. (2) Chronic leukemias. (3) Multiple myelomas, including monoclonal gammopathy of undetermined significance (MGUS). (4) Myelodysplastic Syndromes (MDS). (5) Myelofibrosis. (c) Exceptions. (1) The disease was not incurred or aggravated during active military, naval, air, or space service; or (2) The disease was caused by a supervening condition or event that occurred between the veteran's most recent departure from active military, naval, air, or space service and the onset of the disease; or (3) The disease is the result of the veteran's own willful misconduct. (Authority: 38 U.S.C. 501, 1119, 1171, 1172, 1173, 1174) [90 FR 1901, Jan. 10, 2025] § 3.321 General rating considerations. (a) Use of rating schedule. (Authority: 38 U.S.C. 1155) (b) Extra-schedular ratings in unusual cases Disability compensation. (2) Pension. (3) Effective dates. (c) Advisory opinion. Cross References: Effective dates; disability benefits. See § 3.400(b). Effective dates; increases. See § 3.400(o). [26 FR 1583, Feb. 24, 1961, as amended at 29 FR 1463, Jan. 29, 1964; 37 FR 10442, May 23, 1972; 39 FR 5315, Feb. 12, 1974; 39 FR 32988, Sept. 13, 1974; 40 FR 57459, Dec. 10, 1975; 61 FR 20727, May 8, 1996; 74 FR 26959, June 5, 2009; 79 FR 2100, Jan. 13, 2014; 82 FR 57835, Dec. 8, 2017; 84 FR 170, Jan. 18, 2019] § 3.322 Rating of disabilities aggravated by service. (a) Aggravation of preservice disability. (b) Aggravation of service-connected disability. Cross References: Principles relating to service connection. See § 3.303. Aggravation of preservice disability. See § 3.306. [26 FR 1583, Feb. 24, 1961] § 3.323 Combined ratings. (a) Compensation Same type of service. (2) Wartime and peacetime service. (b) Pension Nonservice-connected disabilities. (2) Service-connected and nonservice-connected disabilities. Cross References: “Willful misconduct.” See § 3.1(n). Pension. See § 3.3. Line of duty and misconduct. See § 3.301. Service connection for mental unsoundness in suicide. See § 3.302. [26 FR 1583, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 61 FR 20438, May 7, 1996] § 3.324 Multiple noncompensable service-connected disabilities. Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating. [40 FR 56435, Dec. 3, 1975] § 3.325 [Reserved] § 3.326 Examinations. For purposes of this section, the term examination includes periods of hospital observation when required by VA. (a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and supplemental claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination. (b) Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic. (c) Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination. (Authority: 38 U.S.C. 5107(a)) Cross Reference: Failure to report for VA examination. See § 3.655. [60 FR 52864, Oct. 11, 1995, as amended at 66 FR 45632, Aug. 29, 2001; 84 FR 170, Jan. 18, 2019] § 3.327 Reexaminations. (a) General. (Authority: 38 U.S.C. 501) (b) Compensation cases Scheduling reexaminations. (2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static; (ii) When the findings and symptoms are shown by examinations scheduled in paragraph (b)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more; (iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement; (iv) In cases of veterans over 55 years of age, except under unusual circumstances; (v) When the rating is a prescribed scheduled minimum rating; or (vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions. (c) Pension cases. Cross Reference: Failure to report for VA examination. See § 3.655. [26 FR 1585, Feb. 24, 1961, as amended at 30 FR 11855, Sept. 16, 1965; 36 FR 14467, Aug. 6, 1971; 55 FR 49521, Nov. 29, 1990; 60 FR 27409, May 24, 1995] § 3.328 lndependent medical opinions. (a) General. (b) Requests. (c) Approval. (i) The director of each Service from which a benefit is sought, or his or her designee, determines that the issue under consideration poses a medical problem of such complexity or controversy as to justify solicitation of an independent medical opinion; or (ii) The independent medical opinion is required to fulfill the instructions contained in a remand order from the Board of Veterans' Appeals. (2) A determination that an independent medical opinion is not warranted may be contested only as part of an appeal to the Board of Veterans' Appeals on the merits of the decision rendered on the primary issue by VA. (d) Notification. (Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3)) [55 FR 18602, May 3, 1990, as amended at 79 FR 2100, Jan. 13, 2014; 84 FR 170, Jan. 18, 2019] § 3.329 [Reserved] § 3.330 Resumption of rating when veteran subsequently reports for Department of Veterans Affairs examination. Such ratings will be governed by the provisions of § 3.158, “Abandoned Claims,” and § 3.655, “Failure to report for Department of Veterans Affairs examination.” The period following the termination or reduction for which benefits are precluded by the cited regulations will be stated in the rating. If the evidence is insufficient to evaluate disability during any period following the termination or reduction for which payments are not otherwise precluded, the rating will contain a notation reading “Evidence insufficient to evaluate from _____ to ______. Cross Reference: Failure to report for Department of Veterans Affairs examination. See § 3.655. [29 FR 3623, Mar. 21, 1964] §§ 3.331-3.339 [Reserved] § 3.340 Total and permanent total ratings and unemployability. (a) Total disability ratings General. (2) Schedule for rating disabilities. (3) Ratings of total disability on history. (i) That the disability must in the past have been of sufficient severity to warrant a total disability rating; (ii) That it must have required extended, continuous, or intermittent hospitalization, or have produced total industrial incapacity for at least 1 year, or be subject to recurring, severe, frequent, or prolonged exacerbations; and (iii) That it must be the opinion of the rating agency that despite the recent improvement of the physical condition, the veteran will be unable to effect an adjustment into a substantially gainful occupation. Due consideration will be given to the frequency and duration of totally incapacitating exacerbations since incurrence of the original disease or injury, and to periods of hospitalization for treatment in determining whether the average person could have reestablished himself or herself in a substantially gainful occupation. (b) Permanent total disability. (c) Insurance ratings. [26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981] § 3.341 Total disability ratings for compensation purposes. (a) General. (Authority: 38 U.S.C. 1155) (b) Incarcerated veterans. (Authority: 38 U.S.C. 5313(c)) (c) Program for vocational rehabilitation. (Authority: 38 U.S.C. 1163) [46 FR 47541, Sept. 29, 1981, as amended at 50 FR 52774, Dec. 26, 1985; 55 FR 17271, Apr. 24, 1990l; 58 FR 32445, June 10, 1993; 68 FR 34542, June 10, 2003; 87 FR 8742, Feb. 16, 2022] § 3.342 Permanent and total disability ratings for pension purposes. (a) General. (Authority: 38 U.S.C. 1502(a)) (b) Criteria. (1) Permanent total disability pension ratings will be authorized for congenital, developmental, hereditary or familial conditions, provided the other requirements for entitlement are met. (2) The permanence of total disability will be established as of the earliest date consistent with the evidence in the case. Active pulmonary tuberculosis not otherwise established as permanently and totally disabling will be presumed so after 6 months' hospitalization without improvement. The same principle may be applied with other types of disabilities requiring hospitalization for indefinite periods. The need for hospitalization for periods shorter or longer than 6 months may be a proper basis for determining permanence. Where, in application of this principle, it is necessary to employ a waiting period to determine permanence of totality of disability and a report received at the end of such period shows the veteran's condition is unimproved, permanence may be established as of the date of entrance into the hospital. Similarly, when active pulmonary tuberculosis is improved after 6 months' hospitalization but still diagnosed as active after 12 months' hospitalization permanence will also be established as of the date of entrance into the hospital. In other cases the rating will be effective the date the evidence establishes permanence. (3) Special consideration must be given the question of permanence in the case of veterans under 40 years of age. For such veterans, permanence of total disability requires a finding that the end result of treatment and adjustment to residual handicaps (rehabilitation) will be permanent disability of the required degree precluding more than marginal employment. Severe diseases and injuries, including multiple fractures or the amputation of a single extremity, should not be taken to establish permanent and total disability until it is shown that the veteran after treatment and convalescence, has been unable to secure or follow employment because of the disability and through no fault of the veteran. (4) The following shall not be considered as evidence of employability: (i) Employment as a member-employer or similar employment obtained only in competition with disabled persons. (ii) Participation in, or the receipt of a distribution of funds as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718. (Authority: 38 U.S.C. 1718(f)) (5) The authority granted the Secretary under 38 U.S.C. 1502(a)(2) to classify as permanent and total those diseases and disorders, the nature and extent of which, in the Secretary judgment, will justify such determination, will be exercised under § 3.321(b). (c) Temporary program of vocational rehabilitation training for certain pension recipients. (2) If a veteran secures employment within the scope of a vocational goal identified in his or her individualized written vocational rehabilitation plan, or in a related field which requires reasonably developed skills and the use of some or all of the training or services furnished the veteran under such plan, not later than one year after eligibility to counseling under § 21.6040(b)(1) of this chapter expires, the veteran's permanent and total evaluation for pension purposes shall not be terminated by reason of the veteran's capacity to engage in such employment until the veteran has maintained that employment for a period of not less than 12 consecutive months. (Authority: 38 U.S.C. 1524(c)) [26 FR 1586, Feb. 24, 1961, as amended at 26 FR 9674, Oct. 13, 1961; 29 FR 3624, Mar. 21, 1964; 39 FR 14944, Apr. 18, 1974; 46 FR 47541, Sept. 29, 1981; 50 FR 52775, Dec. 26, 1985; 53 FR 23235, June 21, 1988; 55 FR 17271, Apr. 24, 1990; 56 FR 25044, June 3, 1991; 56 FR 65851, Dec. 19, 1991; 58 FR 32445, June 10, 1993; 87 FR 8742, Feb. 16, 2022] § 3.343 Continuance of total disability ratings. (a) General. i.e. (b) Tuberculosis; compensation. (c) Individual unemployability. (Authority: 38 U.S.C. 1718(f)) (2) If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occuption during the period beginning after January 1, 1985, the veteran's rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment. (Authority: 38 U.S.C. 1163(a)) Cross Reference: Protection, total disability. See § 3.951(b). [33 FR 16273, Nov. 6, 1968, as amended at 39 FR 14944, Apr. 29, 1974; 50 FR 52775, Dec. 26, 1985; 53 FR 23236, June 21, 1988; 55 FR 17271, Apr. 24, 1990; 57 FR 10426, Mar. 26, 1992; 58 FR 32445, June 10, 1993; 58 FR 46865, Sept. 3, 1993] § 3.344 Stabilization of disability evaluations. (a) Examination reports indicating improvement. (b) Doubtful cases. (c) Disabilities which are likely to improve. [26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993] Ratings for Special Purposes § 3.350 Special monthly compensation ratings. The rates of special monthly compensation stated in this section are those provided under 38 U.S.C. 1114. (a) Ratings under 38 U.S.C. 1114(k). (1) Creative organ. ( a ( b ( c a b (ii) When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted. (iii) Loss or loss of use traceable to an elective operation performed subsequent to service, will not establish entitlement to the benefit. If, however, the operation after discharge was required for the correction of a specific injury caused by a preceding operation in service, it will support authorization of the benefit. When the existence of disability is established meeting the above requirements for nonfunctioning testicle due to operation after service, resulting in loss of use, the benefit may be granted even though the operation is one of election. An operation is not considered to be one of election where it is advised on sound medical judgment for the relief of a pathological condition or to prevent possible future pathological consequences. (iv) Atrophy resulting from mumps followed by orchitis in service is service connected. Since atrophy is usually perceptible within 1 to 6 months after infection subsides, an examination more than 6 months after the subsidence of orchitis demonstrating a normal genitourinary system will be considered in determining rebuttal of service incurrence of atrophy later demonstrated. Mumps not followed by orchitis in service will not suffice as the antecedent cause of subsequent atrophy for the purpose of authorizing the benefit. (2) Foot and hand. ( a 1/2 ( b (3) Both buttocks. (Authority: 38 U.S.C. 1114(k)) (ii) Special monthly compensation for loss or loss of use of both lower extremities (38 U.S.C. 1114(l) through (n)) will not preclude additional compensation under 38 U.S.C. 1114(k) for loss of use of both buttocks where appropriate tests clearly substantiate that there is such additional loss. (4) Eye. (5) Deafness. (Authority: Pub. L. 88-20) (6) Aphonia. (Authority: Pub. L. 88-22) (b) Ratings under 38 U.S.C. 1114(l). (1) Extremities. (2) Eyes, bilateral. (3) Need for aid and attendance. (4) Permanently bedridden. (c) Ratings under 38 U.S.C. 1114(m). (i) Anatomical loss or loss of use of both hands; (ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place; (iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place; (iv) Blindness in both eyes having only light perception; (v) Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance. (2) Natural elbow or knee action. (3) Eyes, bilateral. (d) Ratings under 38 U.S.C. 1114(n). (1) Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place; (2) Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance; (3) Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance; (4) Anatomical loss of both eyes or blindness without light perception in both eyes. (e) Ratings under 38 U.S.C. 1114 (o). (i) Anatomical loss of both arms so near the shoulder as to prevent use of a prosthetic appliance; (ii) Conditions entitling to two or more of the rates (no condition being considered twice) provided in 38 U.S.C. 1114(l) through (n); (iii) Bilateral deafness rated at 60 percent or more disabling (and the hearing impairment in either one or both ears is service connected) in combination with service-connected blindness with bilateral visual acuity 20/200 or less. (iv) Service-connected total deafness in one ear or bilateral deafness rated at 40 percent or more disabling (and the hearing impairment in either one of both ears is service-connected) in combination with service-connected blindness of both eyes having only light perception or less. (2) Paraplegia. (3) Combinations. (4) Helplessness. (f) Intermediate or next higher rate. (Authority: 38 U.S.C. 1114 (p)) (1) Extremities. (ii) Anatomical loss or loss of use of one foot with anatomical loss of one leg so near the hip as to prevent use of prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(m). (iii) Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place, shall entitle to the rate between 38 U.S.C. 1114(l) and (m). (iv) Anatomical loss or loss of use of one foot with anatomical loss or loss of use of one arm so near the shoulder as to prevent use of a prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(m). (v) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114(m) and (n). (vi) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss or loss of use of one hand, shall entitle to the rate between 38 U.S.C. 1114 (l) and (m). (vii) Anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114 (m) and (n). (viii) Anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance with anatomical loss or loss of use of one hand shall entitle to the rate under 38 U.S.C. 1114(m). (ix) Anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance with anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place, shall entitle to the rate between 38 U.S.C. 1114 (m) and (n). (x) Anatomical loss or loss of use of one hand with anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place, shall entitle to the rate between 38 U.S.C. 1114 (m) and (n). (xi) Anatomical loss or loss of use of one hand with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance shall entitle to the rate under 38 U.S.C. 1114(n). (xii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance, shall entitle to the rate between 38 U.S.C. 1114 (n) and (o). (2) Eyes, bilateral, and blindness in connection with deafness and/or loss or loss of use of a hand or foot. (i) Blindness of one eye with 5/200 visual acuity or less and blindness of the other eye having only light perception will entitle to the rate between 38 U.S.C. 1114 (l) and (m). (ii) Blindness of one eye with 5/200 visual acuity or less and anatomical loss of, or blindness having no light perception in the other eye, will entitle to a rate equal to 38 U.S.C. 1114(m). (iii) Blindness of one eye having only light perception and anatomical loss of, or blindness having no light perception in the other eye, will entitle to a rate between 38 U.S.C. 1114 (m) and (n). (iv) Blindness in both eyes with visual acuity of 5/200 or less, or blindness in both eyes rated under subparagraph (2) (i) or (ii) of this paragraph, when accompanied by service-connected total deafness in one ear, will afford entitlement to the next higher intermediate rate of if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o). (v) Blindness in both eyes having only light perception or less, or rated under subparagraph (2)(iii) of this paragraph, when accompanied by bilateral deafness (and the hearing impairment in either one or both ears is service-connected) rated at 10 or 20 percent disabling, will afford entitlement to the next higher intermediate rate, or if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o). (Authority: Sec. 112, Pub. L. 98-223) (vi) Blindness in both eyes rated under 38 U.S.C. 1114 (l), (m) or (n), or rated under subparagraphs (2)(i), (ii) or (iii) of this paragraph, when accompanied by bilaterial deafness rated at no less than 30 percent, and the hearing impairment in one or both ears is service-connected, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114, or if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o). (Authority: 38 U.S.C. 1114(p)) (vii) Blindness in both eyes rated under 38 U.S.C. 1114 (l), (m), or (n), or under the intermediate or next higher rate provisions of this subparagraph, when accompanied by: (A) Service-connected loss or loss of use of one hand, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or, if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o); or (B) Service-connected loss or loss of use of one foot which by itself or in combination with another compensable disability would be ratable at 50 percent or more, will afford entitlement to the next higher statutory rate under 38 U.S.C. 1114 or, if the veteran is already entitled to an intermediate rate, to the next higher intermediate rate, but in no event higher than the rate for (o); or (C) Service-connected loss or loss of use of one foot which is ratable at less than 50 percent and which is the only compensable disability other than bilateral blindness, will afford entitlement to the next higher intermediate rate or, if the veteran is already entitled to an intermediate rate, to the next higher statutory rate under 38 U.S.C. 1114, but in no event higher than the rate for (o). (Authority: 38 U.S.C. 1114(p)) (3) Additional independent 50 percent disabilities. (4) Additional independent 100 percent ratings. (i) Where the multiple loss or loss of use entitlement to a statutory or intermediate rate between 38 U.S.C. 1114 (l) and (o) is caused by the same etiological disease or injury, that disease or injury may not serve as the basis for the independent 50 percent or 100 percent unless it is so rated without regard to the loss or loss of use. (ii) The graduated ratings for arrested tuberculosis will not be utilized in this connection, but the permanent residuals of tuberculosis may be utilized. (5) Three extremities. (g) Inactive tuberculosis complete arrest (1) For a veteran who was receiving or entitled to receive compensation for tuberculosis on August 19, 1968, the minimum monthly rate is $67. This minimum special monthly compensation is not to be combined with or added to any other disability compensation. (2) For a veteran who was not receiving or entitled to receive compensation for tuberculosis on August 19, 1968, the special monthly compensation authorized by paragraph (g)(1) of this section is not payable. (h) Special aid and attendance benefit; 38 U.S.C. 1114(r) (2) Entitlement to compensation at the intermediate rate between 38 U.S.C. 1114 (n) and (o) plus special monthly compensation under 38 U.S.C. 1114(k). (3) Amount of the allowance. (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). (1) Has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) Is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. (j) Special aid and attendance benefit for residuals of traumatic brain injury (38 U.S.C. 1114(t)). (1) A veteran described in this paragraph (j) shall be entitled to the amount equal to the compensation authorized under 38 U.S.C. 1114(o) or the maximum rate authorized under 38 U.S.C. 1114(p) and, in addition to such compensation, a monthly allowance equal to the rate described in 38 U.S.C. 1114(r)(2) during periods he or she is not hospitalized at United States Government expense. ( See (2) An allowance authorized under 38 U.S.C. 1114(t) shall be paid in lieu of any allowance authorized by 38 U.S.C. 1114(r)(1). (Authority: 38 U.S.C. 501, 38 U.S.C. 1114(t)) [26 FR 1587, Feb. 24, 1961, as amended at 27 FR 4739, May 18, 1962; 28 FR 1587, Feb. 20, 1963; 28 FR 5671, June 11, 1963; 40 FR 54245, Nov. 21, 1975; 45 FR 25392, Apr. 15, 1980; 46 FR 47541, Sept. 29, 1981; 48 FR 41161, Sept. 14, 1983; 49 FR 47003, Nov. 30, 1984; 54 FR 34981, Aug. 23, 1989; 60 FR 12886, Mar. 9, 1995; 67 FR 6873, Feb. 14, 2002; 68 FR 55467, Sept. 26, 2003; 74 FR 11483, Mar. 18, 2009; 83 FR 20736, May 8, 2018] § 3.351 Special monthly dependency and indemnity compensation, death compensation, pension and spouse's compensation ratings. (a) General. (1) Increased pension is payable to a veteran by reason of need for aid and attendance or by reason of being housebound. (Authority: 38 U.S.C. 1521(d), (e)) (2) Increased compensation is payable to a veteran by reason of the veteran's spouse being in need of aid and attendance. (Authority: 38 U.S.C. 1115(1)(E)) (3) Increased dependency and indemnity compensation is payable to a surviving spouse or parent by reason of being in need of aid and attendance. (Authority: 38 U.S.C. 1311(c), 1315(h)) (4) Increased dependency and indemnity compensation is payable to a surviving spouse who is not in need of aid and attendance but is housebound. (Authority: 38 U.S.C. 1311(d)) (5) Increased pension is payable to a surviving spouse by reason of need for aid and attendance, or if not in need of aid and attendance, by reason of being housebound. (Authority: 38 U.S.C. 1541(d), (e)) (6) Increased death compensation is payable to a surviving spouse by reason of being in need of aid and attendance. (Authority: 38 U.S.C. 1122) (b) Aid and attendance; need. (c) Aid and attendance; criteria. (1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) Is a patient in a nursing home because of mental or physical incapacity; or (3) Establishes a factual need for aid and attendance under the criteria set forth in § 3.352(a). (Authority: 38 U.S.C. 1502(b)) (d) Housebound, or permanent and total plus 60 percent; disability pension. (1) Has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or (2) Is “permanently housebound” by reason of disability or disabilities. This requirement is met when the veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. (Authority: 38 U.S.C. 1502(c), 1521(e)) (e) Housebound; dependency and indemnity compensation. (Authority: 38 U.S.C. 1311(d)) (f) Housebound; improved pension; death. (Authority: 38 U.S.C. 1541(e)) [44 FR 45939, Aug. 6, 1979] § 3.352 Criteria for determining need for aid and attendance and “permanently bedridden.” (a) Basic criteria for regular aid and attendance and permanently bedridden. (b) Basic criteria for the higher level aid and attendance allowance. (i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p). (ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. (2) A veteran is entitled to the higher level aid and attendance allowance authorized by § 3.350(j) in lieu of the regular aid and attendance allowance when all of the following conditions are met: (i) As a result of service-connected residuals of traumatic brain injury, the veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section. (ii) As a result of service-connected residuals of traumatic brain injury, the veteran needs a “higher level of care” (as defined in paragraph (b)(3) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care. (3) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof. (4) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(3) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice. (5) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional. (6) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial. (c) Attendance by relative. (Authority: 38 U.S.C. 501, 1114(r)(2), 1114(t)) [41 FR 29680, July 19, 1976, as amended at 44 FR 22720, Apr. 17, 1979; 60 FR 27409, May 24, 1995; 83 FR 20737, May 8, 2018] § 3.353 Determinations of incompetency and competency. (a) Definition of mental incompetency. (b) Authority. (2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in § 13.100 of this chapter; select a method of disbursing payment as provided in § 13.100 of this chapter, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in § 13.100 of this chapter; and authorize disbursement of the benefit. (3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in § 3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs. (c) Medical opinion. (d) Presumption in favor of competency. (e) Due process. (Authority: 38 U.S.C. 501(a)) [36 FR 19020, Sept. 25, 1971, and 40 FR 1241, Jan. 7, 1975, as amended at 42 FR 2069, Jan. 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR 46868, July 17, 2002; 68 FR 34542, June 10, 2003; 83 FR 32738, July 13, 2018] § 3.354 Determinations of insanity. (a) Definition of insanity. (b) Insanity causing discharge. [26 FR 1589, Feb. 24, 1961] § 3.355 Testamentary capacity for insurance purposes. When cases are referred to a rating agency involving the testamentary capacity of the insured to execute designations or changes of beneficiary, or designations or changes of option, the following considerations will apply: (a) Testamentary capacity is that degree of mental capacity necessary to enable a person to perform a testamentary act. This, in general, requires that the testator reasonably comprehend the nature and significance of his act, that is, the subject and extent of his disposition, recognition of the object of his bounty, and appreciation of the consequence of his act, uninfluenced by any material delusion as to the property or persons involved. (b) Due consideration should be given to all facts of record, with emphasis being placed on those facts bearing upon the mental condition of the testator (insured) at the time or nearest the time he executed the designation or change. In this connection, consideration should be given to lay as well as medical evidence. (c) Lack of testamentary capacity should not be confused with insanity or mental incompetence. An insane person might have a lucid interval during which he would possess testamentary capacity. On the other hand, a sane person might suffer a temporary mental aberration during which he would not possess testamentary capacity. There is a general but rebuttable presumption that every testator possesses testamentary capacity. Therefore, reasonable doubts should be resolved in favor of testamentary capacity. [26 FR 1590, Feb. 24, 1961] § 3.356 Conditions which determine permanent incapacity for self-support. (a) Basic determinations. (b) Rating criteria. (1) The fact that a claimant is earning his or her own support is prima facie evidence that he or she is not incapable of self-support. Incapacity for self-support will not be considered to exist when the child by his or her own efforts is provided with sufficient income for his or her reasonable support. (2) A child shown by proper evidence to have been permanently incapable of self-support prior to the date of attaining the age of 18 years, may be so held at a later date even though there may have been a short intervening period or periods when his or her condition was such that he or she was employed, provided the cause of incapacity is the same as that upon which the original determination was made and there were no intervening diseases or injuries that could be considered as major factors. Employment which was only casual, intermittent, tryout, unsuccessful, or terminated after a short period by reason of disability, should not be considered as rebutting permanent incapability of self-support otherwise established. (3) It should be borne in mind that employment of a child prior or subsequent to the delimiting age may or may not be a normal situation, depending on the educational progress of the child, the economic situation of the family, indulgent attitude of parents, and the like. In those cases where the extent and nature of disability raises some doubt as to whether they would render the average person incapable of self-support, factors other than employment are for consideration. In such cases there should be considered whether the daily activities of the child in the home and community are equivalent to the activities of employment of any nature within the physical or mental capacity of the child which would provide sufficient income for reasonable support. Lack of employment of the child either prior to the delimiting age or thereafter should not be considered as a major factor in the determination to be made, unless it is shown that it was due to physical or mental defect and not to mere disinclination to work or indulgence of relatives or friends. (4) The capacity of a child for self-support is not determinable upon employment afforded solely upon sympathetic or charitable considerations and which involved no actual or substantial rendition of services. Cross Reference: Basic pension and eligibility determinations. See § 3.314. [26 FR 1590, Feb. 24, 1961, as amended at 38 FR 871, Jan. 5, 1973] § 3.357 Civil service preference ratings. For the purpose of certifying civil service disability preference only, a service-connected disability may be assigned an evaluation of “less than ten percent.” Any directly or presumptively service-connected disease or injury which exhibits some extent of actual impairment may be held to exist at the level of less than ten percent. For disabilities incurred in combat, however, no actual impairment is required. [58 FR 52018, Oct. 6, 1993] § 3.358 Compensation for disability or death from hospitalization, medical or surgical treatment, examinations or vocational rehabilitation training (§ 3.800). (a) General. (b) Additional disability. (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under this section for the continuance or natural progress of a disease or injury for which the hospitalization, medical or surgical treatment, or examination was furnished, unless VA's failure to exercise reasonable skill and care in the diagnosis or treatment of the disease or injury caused additional disability or death that probably would have been prevented by proper diagnosis or treatment. Compensation will not be payable under this section for the continuance or natural progress of a disease or injury for which vocational rehabilitation training was provided. (c) Cause. (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. “Necessary consequences” are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. (4) When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. (5) Compensation for disability resulting from the pursuit of vocational rehabilitation is not payable unless there is established a direct (proximate) causal connection between the injury or aggravation of an existing injury and some essential activity or function which is within the scope of the vocational rehabilitation course, not necessarily limited to activities or functions specifically designated by the Department of Veterans Affairs in the individual case, since ordinarily it is not to be expected that each and every different function and act of a veteran pursuant to his or her course of training will be particularly specified in the outline of the course or training program. For example, a disability resulting from the use of an item of mechanical or other equipment is within the purview of the statute if training in its use is implicit within the prescribed program or course outlined or if its use is implicit in the performance of some task or operation the trainee must learn to perform, although such use may not be especially mentioned in the training program. In determining whether the element of direct or proximate causation is present, it remains necessary for a distinction to be made between an injury arising out of an act performed in pursuance of the course of training, that is, a required “learning activity”, and one arising out of an activity which is incident to, related to, or coexistent with the pursuit of the program of training. For a case to fall within the statute there must have been sustained an injury which, but for the performance of a “learning activity” in the prescribed course of training, would not have been sustained. A meticulous examination into all the circumstances is required, including a consideration of the time and place of the incident producing the injury. (6) Nursing home care furnished under section 1720 of title 38, United States Code is not hospitalization within the meaning of this section. Such a nursing home is an independent contractor and, accordingly, its agents and employees are not to be deemed agents and employees of the Department of Veterans Affairs. If additional disability results from medical or surgical treatment or examination through negligence or other wrongful acts or omissions on the part of such a nursing home, its employees, or its agents, entitlement does not exist under this section unless there was an act or omission on the part of the Department of Veterans Affairs independently giving rise to such entitlement and such acts on the part of both proximately caused the additional disability. (Authority: 38 U.S.C. 1151, 1720) [26 FR 1590, Feb. 24, 1961, as amended at 36 FR 7659, Apr. 23, 1971; 39 FR 34531, Sept. 26, 1974; 43 FR 51015, Nov. 2, 1978; 60 FR 14223, Mar. 16, 1995; 61 FR 25788, May 23, 1996; 64 FR 1131, Jan. 8, 1999; 69 FR 46433, Aug. 3, 2004] § 3.359 Determination of service connection for former members of the Armed Forces of Czechoslovakia or Poland. Rating boards will determine whether or not the condition for which treatment is claimed by former members of the Armed Forces of Czechoslovakia or Poland under 38 U.S.C. 109(c) is service connected. This determination will be made using the same criteria that applies to determinations of service connection based on service in the Armed Forces of the United States. [43 FR 4424, Feb. 2, 1978] § 3.360 Service-connected health-care eligibility of certain persons administratively discharged under other than honorable condition. (a) General. (b) Discharge categorization. (c) Eligibility criteria. [43 FR 15154, Apr. 11, 1978] § 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. (a) Claims subject to this section General. (2) Compensated Work Therapy. (b) Determining whether a veteran has an additional disability. (c) Establishing the cause of additional disability or death. (1) Actual causation required. (2) Continuance or natural progress of a disease or injury. (3) Veteran's failure to follow medical instructions. (d) Establishing the proximate cause of additional disability or death. (1) Care, treatment, or examination. (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express ( i.e. (2) Events not reasonably foreseeable. (3) Training and rehabilitation services or compensated work therapy program. (e) Department employees and facilities. Department employee is an individual (i) Who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105; (ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. (2) A Department facility (f) Activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. 1703. (2) Nursing home care furnished under 38 U.S.C. 1720. (3) Hospital care or medical services, including examination, provided under 38 U.S.C. 8153 in a facility over which the Secretary does not have direct jurisdiction. (g) Benefits payable under 38 U.S.C. 1151 for a veteran's death. (1) Death before January 1, 1957. (2) Death after December 31, 1956. (Authority: 38 U.S.C. 1151) [69 FR 46433, Aug. 3, 2004] § 3.362 Offsets under 38 U.S.C. 1151(b) of benefits awarded under 38 U.S.C. 1151(a). (a) Claims subject to this section. (b) Offset of veterans' awards of compensation. (c) Offset of survivors' awards of dependency and indemnity compensation. (d) Offset of structured settlements. (1) The amount to be offset. (2) When the offset begins. (e) Offset of award of benefits under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39. (2) If the amount described in paragraph (e)(1) of this section is greater than the amount of an award under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39, the excess amount received under the judgment, settlement, or compromise will be offset against benefits otherwise payable under 38 U.S.C. chapter 11. [69 FR 46434, Aug. 3, 2004, as amended at 71 FR 44918, Aug. 8, 2006; 75 FR 57861, Sept. 23, 2010] § 3.363 Bar to benefits under 38 U.S.C. 1151. (a) Claims subject to this section. (b) Administrative award, compromises, or settlements, or judgments that bar benefits under 38 U.S.C. 1151. (Authority: 38 U.S.C. 1151) [69 FR 46434, Aug. 3, 2004] Rating Considerations Relative to Specific Diseases § 3.370 Pulmonary tuberculosis shown by X-ray in active service. (a) Active disease. (b) Inactive disease. (c) Primary lesions. [26 FR 1591, Feb. 24, 1961, as amended at 43 FR 45347, Oct. 2, 1978] § 3.371 Presumptive service connection for tuberculous disease; wartime and service on or after January 1, 1947. (a) Pulmonary tuberculosis. (2) A notation of inactive tuberculosis of the reinfection type at induction or enlistment definitely prevents the grant of service connection under § 3.307 for active tuberculosis, regardless of the fact that it was shown within the appropriate presumptive period. (b) Pleurisy with effusion without obvious cause. (c) Tuberculous pleurisy and endobronchial tuberculosis. (d) Miliary tuberculosis. [26 FR 1591, Feb. 24, 1961, as amended at 27 FR 6387, July 6, 1962; 31 FR 4681, Mar. 19, 1966; 39 FR 34532, Sept. 26, 1974; 43 FR 45347, Oct. 2, 1978; 54 FR 34981, Aug. 23, 1989] § 3.372 Initial grant following inactivity of tuberculosis. When service connection is granted initially on an original or supplemental claim for pulmonary or nonpulmonary tuberculosis and there is satisfactory evidence that the condition was active previously but is now inactive (arrested), it will be presumed that the disease continued to be active for 1 year after the last date of established activity, provided there is no evidence to establish activity or inactivity in the intervening period. For a veteran entitled to receive compensation on August 19, 1968, the beginning date of graduated ratings will commence at the end of the 1-year period. For a veteran who was not receiving or entitled to receive compensation on August 19, 1968, ratings will be assigned in accordance with the Schedule for Rating Disabilities (part 4 of this chapter). This section is not applicable to running award cases. [33 FR 16275, Nov. 6, 1968, as amended at 84 FR 170, Jan. 18, 2019] § 3.373 [Reserved] § 3.374 Effect of diagnosis of active tuberculosis. (a) Service diagnosis. (b) Department of Veterans Affairs diagnosis. (c) Private physician's diagnosis. [26 FR 1591, Feb. 24, 1961, as amended at 27 FR 6387, July 6, 1962; 33 FR 16275, Nov. 6, 1968; 43 FR 45348, Oct. 2, 1978] § 3.375 Determination of inactivity (complete arrest) in tuberculosis. (a) Pulmonary tuberculosis. (b) Nonpulmonary disease. (c) Arrest following surgery. [33 FR 16275, Nov. 6, 1968, as amended at 43 FR 45348, Oct. 2, 1978] §§ 3.376-3.377 [Reserved] § 3.378 Changes from activity in pulmonary tuberculosis pension cases. A permanent and total disability rating in effect during hospitalization will not be discontinued before hospital discharge on the basis of a change in classification from active. At hospital discharge, the permanent and total rating will be discontinued unless (a) the medical evidence does not support a finding of complete arrest (§ 3.375), or (b) where complete arrest is shown but the medical authorities recommend that employment not be resumed or be resumed only for short hours (not more than 4 hours a day for a 5-day week). If either of the two aforementioned conditions is met, discontinuance will be deferred pending examination in 6 months. Although complete arrest may be established upon that examination, the permanent and total rating may be extended for a further period of 6 months provided the veteran's employment is limited to short hours as recommended by the medical authorities (not more than 4 hours a day for a 5-day week). Similar extensions may be granted under the same conditions at the end of 12 and 18 months periods. At the expiration of 24 months after hospitalization, the case will be considered under § 3.321(b) if continued short hours of employment is recommended or if other evidence warrants submission. [43 FR 45348, Oct. 2, 1978] § 3.379 Anterior poliomyelitis. If the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. If they first appear after this period, it is probable that the infection was incurred after service. [26 FR 1592, Feb. 24, 1961] § 3.380 Diseases of allergic etiology. Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing. [26 FR 1592, Feb. 24, 1961] § 3.381 Service connection of dental conditions for treatment purposes. (a) The Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration determines a veteran meets the basic eligibility requirements of § 17.161 of this chapter and requests VBA make a determination on questions that include, but are not limited to, any of the following: (1) Former Prisoner of War status; (2) Whether the veteran has a compensable or noncompensable service-connected dental condition or disability; (3) Whether the dental condition or disability is a result of combat wounds; (4) Whether the dental condition or disability is a result of service trauma; or (5) Whether the veteran is totally disabled due to a service-connected disability. (b) Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities, but may nevertheless be service connected solely for the purpose of establishing eligibility for outpatient dental treatment as provided for in § 17.161 of this chapter. These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 of this chapter may be service connected for purposes of Class II or Class II (a) dental treatment under § 17.161 of this chapter. (c) The rating activity will consider each defective or missing tooth and each disease of the teeth and periodontal tissues separately to determine whether the condition was incurred or aggravated in line of duty during active service (d) In determining service connection, the condition of teeth and periodontal tissues at the time of entry into active duty will be considered. Treatment during service, including filling or extraction of a tooth, or placement of a prosthesis, will not be considered evidence of aggravation of a condition that was noted at entry, unless additional pathology developed after 180 days or more of active service. (e) The following principles apply to dental conditions noted at entry and treated during service: (1) Teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service. (2) Teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service. (3) Teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service. However, new caries that developed 180 days or more after such a tooth was filled will be service-connected. (4) Teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service. (5) Teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service. (6) Teeth noted as missing at entry will not be service connected, regardless of treatment during service. (f) The following will not be considered service-connected for treatment purposes: (1) Calculus; (2) Acute periodontal disease; (3) Third molars, unless disease or pathology of the tooth developed after 180 days or more of active service, or was due to combat or in-service trauma; and (4) Impacted or malposed teeth, and other developmental defects, unless disease or pathology of these teeth developed after 180 days or more of active service. (g) Teeth extracted because of chronic periodontal disease will be service-connected only if they were extracted after 180 days or more of active service. (Authority: 38 U.S.C. 1712) [64 FR 30393, June 8, 1999, as amended at 77 FR 4470, Jan. 30, 2012] § 3.382 [Reserved] § 3.383 Special consideration for paired organs and extremities. (a) Entitlement criteria. (1) Impairment of vision in one eye as a result of service-connected disability and impairment of vision in the other eye as a result of non-service-connected disability and (i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or (ii) The peripheral field of vision for each eye is 20 degrees or less. (2) Loss or loss of use of one kidney as a result of service-connected disability and involvement of the other kidney as a result of nonservice-connected disability. (3) Hearing impairment in one ear compensable to a degree of 10 percent or more as a result of service-connected disability and hearing impairment as a result of nonservice-connected disability that meets the provisions of § 3.385 in the other ear. (4) Loss or loss of use of one hand or one foot as a result of service-connected disability and loss or loss of use of the other hand or foot as a result of nonservice-connected disability. (5) Permanent service-connected disability of one lung, rated 50 percent or more disabling, in combination with a nonservice-connected disability of the other lung. (b) Effect of judgment or settlement. (2) With respect to the disability combinations specified in paragraphs (a)(1), (a)(2), (a)(3) and (a)(5) of this section, the provisions of this paragraph apply only to awards of increased compensation made on or after October 28, 1986. (c) Social security and workers' compensation. (d) Veteran's duty to report. (Authority: 38 U.S.C. 501(a), 1160) Cross References: § 3.385 Disability due to impaired hearing; § 4.85 Evaluation of hearing impairment. [53 FR 23236, June 21, 1988, as amended at 69 FR 48149, Aug. 9, 2004; 74 FR 11483, Mar. 18, 2009] § 3.384 Psychosis. For purposes of this part, the term “psychosis” means any of the following disorders listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) (see § 4.125 for availability information): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to Another Medical Condition; (d) Other Specified Schizophrenia Spectrum and Other Psychotic Disorder; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; and (h) Substance/Medication-Induced Psychotic Disorder. (Authority: 38 U.S.C. 501(a), 1101, 1112(a) and (b)) [79 FR 45099, Aug. 4, 2014] § 3.385 Disability due to impaired hearing. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. [59 FR 60560, Nov. 25, 1994] Effective Dates § 3.400 General. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. For effective date provisions regarding revision of a decision based on a supplemental claim or higher-level review, see § 3.2500. (Authority: 38 U.S.C. 5110(a)) (a) Unless specifically provided. (b) Disability benefits Disability pension (§ 3.3). (i) Claims received prior to October 1, 1984. (ii) Claims received on or after October 1, 1984. (B) If, within one year from the date on which the veteran became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension award may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of § 3.342(a) do not apply. (2) Disability compensation Direct service connection (§ 3.4(b)). (ii) Presumptive service connection 3.307, 3.308, 3.309 (c) Death benefits Death in service (38 U.S.C. 5110(j), Pub. L. 87-825) (§§ 3.4(c), 3.5(b)). (2) Service-connected death after separation from service (38 U.S.C. 5110(d), Pub. L. 87-825) (§§ 3.4(c), 3.5(b)). (3) Nonservice-connected death after separation from service. (ii) For awards based on claims received between October 1, 1984, and December 9, 2004, first day of the month in which the veteran's death occurred if claim is received within 45 days after the date of death; otherwise, date of receipt of claim. (Authority: 38 U.S.C. 5110(d)) (4) Dependency and indemnity compensation Deaths prior to January 1, 1957 (§ 3.702). (ii) Child (38 U.S.C. 5110(e), Pub. L. 87-835). (iii) Deaths on or after May 1, 1957 (in-service waiver cases) (§§ 3.5(b)(3) and 3.702). (d) [Reserved] (e) Apportionment General rule. (2) Exceptions to general rule Claim for benefits is pending. (ii) Apportionment claimant not yet established as the beneficiary's dependent. (iii) The primary beneficiary is incarcerated. (f) Federal employees' compensation cases 3.708 (g) Correction of military records (38 U.S.C. 5110(i); Pub. L. 87-825). (1) Date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) Date of receipt of claim if claim was disallowed; or (3) One year prior to date of reopening of disallowed claim. (h) Difference of opinion (§ 3.105). (2) As to decisions which have been finally adjudicated (see § 3.160(d)), and notwithstanding other provisions of this section, the date entitlement arose, but not earlier than the date of receipt of the supplemental claim. (3) As to decisions which have been finally adjudicated (see 3.160(d)) and readjudication is undertaken solely on VA initiative, the date of Central Office approval authorizing a favorable decision or the date of the favorable Board of Veterans' Appeals decision. (4) Where the initial determination for the purpose of death benefits is favorable, the commencing date will be determined without regard to the fact that the action may reverse, on a difference of opinion, an unfavorable decision for disability purposes by an adjudicative agency other than the Board of Veterans Appeals, which was in effect at the date of the veteran's death. (i) Disability or death due to hospitalization, etc. Disability. (2) Death. (j) Election of Department of Veterans Affairs benefits 3.700 series (2) July 1, 1960, as to pension payable under Pub. L. 86-211, where pension is payable for June 30, 1960, under the law in effect on that date, including an award approved after that date, if the election is filed within (generally) 120 days from date of notice of the award. The award will be subject to prior payments over the same period of time. (3) January 1, 1965, as to pension payable under Pub. L. 86-211 (73 Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility for pension on June 30, 1960, under the law in effect on that date and an election if filed prior to May 1, 1965. (4) January 1, 1965, as to pension payable under Pub. L. 86-211 (73 Stat. 432) as amended by Pub. L. 88-664 if there was basic eligibility on that date for pension on the basis of service in the Indian wars or Spanish-American War and an election is filed prior to May 1, 1965. (5) January 1, 1969, as to pension payable under Pub. L. 86-211 (73 Stat. 432), as amended by Pub. L. 90-275 (82 Stat. 64), if there was basic eligibility for pension on June 30, 1960, under the law in effect on that date and an election is filed prior to May 1, 1969. (6) August 1, 1972, as to pension payable under Pub. L. (73 Stat. 432) as amended by Pub. L. 92-328 (86 Stat. 393) if there was basic eligibility on that date based on death of a veteran of the Spanish-American War and an election is filed prior to December 1, 1972. (k) Error 3.105 (l) Foreign residence. (m) Forfeiture 3.901, 3.902 (n) Guardian. Note: Award to guardian shall include amounts withheld for possible apportionments as well as money in Personal Funds of Patients. (o) Increases (38 U.S.C. 5110(a) and 5110(b)(2), Pub. L. 94-71, 89 Stat. 395; §§ 3.109, 3.156, 3.157 General. (2) Disability compensation. (Authority: 38 U.S.C. 501, 5101) (p) Liberalizing laws and Department of Veterans Affairs issues. (q) New and material evidence (§ 3.156) other than service department records Received within appeal period or prior to appellate decision. (2) Received after final disallowance. (r) Reopened claims. (Authority: 38 U.S.C. 501) (s) Renouncement 3.106 (t) Whereabouts now known. (u) Void, annulled or terminated marriage of a child 38 U.S.C. 5110 a k l ; Pub. L. 93-527, 88 Stat. 1702; 3.55 Void. (2) Annulled. (3) Death. (4) Divorce. (v) Termination of remarriage of surviving spouse (38 U.S.C. 5110(a), (k); 38 U.S.C. 103(d) and 3010(l) effective January 1, 1971; § 3.55) Void. (2) Annulled. (3) Death. (4) Divorce. (w) Termination of relationship or conduct resulting in restriction on payment of benefits (38 U.S.C. 5110(m), effective January 1, 1971; §§ 3.50(b)(2) and 3.55). (x) Effective date of determination of incompetency (§ 3.353). (y) Effective date of determination restoring competency (§ 3.353). (z) Claims based on service in the Women's Air Forces Service Pilots (WASP), or on service in a similarly situated group (Pub. L. 95-202). (2) Reopened claims received prior to the effective date provided in § 19.2(a) of this chapter: Latest of the following dates: (i) November 23, 1977. (ii) Date entitlement arose. (iii) One year prior to date of receipt of reopened claim. (3) Supplemental claims received more than one year after notice of decision: Latest of the following dates: (i) Date entitlement arose. (ii) One year prior to date of receipt of a supplemental claim. [26 FR 1593, Feb. 24, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 3.401 Veterans. Awards of pension or compensation payable to or for a veteran will be effective as follows: (a) Aid and attendance and housebound benefits. (Authority: 38 U.S.C. 501; 5110(b)(1), (3)) (2) Date of departure from hospital, institution, or domiciliary. (Authority: 38 U.S.C. 501) (3) Spouse, additional compensation for aid and attendance: Date of receipt of claim or date entitlement arose, whichever is later. However, when an award of disability compensation based on an original or supplemental claim is effective for a period prior to date of receipt of the claim additional disability compensation payable to a veteran by reason of the veteran's spouse's need for aid and attendance shall also be awarded for any part of the award's retroactive period for which the spouse's entitlement to aid and attendance is established. (Authority: 38 U.S.C. 501; 5110(b)(1), (2)) (b) Dependent, additional compensation or pension for. (1) Date of claim. This term means the following, listed in their order of applicability: (i) Date of veteran's marriage, or birth of his or her child, or, adoption of a child, if the evidence of the event is received within 1 year of the event; otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within 1 year of the Department of Veterans Affairs request. (2) Date dependency arises. (3) Effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action. (Authority: 38 U.S.C. 5110(f)) (4) Date of commencement of veteran's award. (Other increases, see § 3.400(o). For school attendance see § 3.667.) (Authority: 38 U.S.C. 5110 (f), (n)) (c) Divorce of veteran and spouse. (d) [Reserved] (e) Retirement pay 3.750 Election. (2) Waiver. (3) Reelection. (f) Service pension (§ 3.3(a)). (g) Tuberculosis, special compensation for arrested. (h) Temporary increase “General Policy in Rating,” 1945 Schedule for Rating Disabilities Section 4.29 of this chapter. (2) Section 4.30 of this chapter. (i) Increased disability pension based on attainment of age 78. [26 FR 1594, Feb. 24, 1961, as amended at 27 FR 11889, Dec. 1, 1962; 36 FR 4599, Mar. 10, 1971; 39 FR 17222, Mar. 14, 1974; 41 FR 36493, Aug. 30, 1976; 41 FR 55874, Dec. 23, 1976; 41 FR 56804, Dec. 30, 1976; 45 FR 34886, May 23, 1980; 54 FR 34981, Aug. 23, 1989; 62 FR 5529, Feb. 6, 1997; 83 FR 32738, July 13, 2018; 84 FR 170, Jan. 18, 2019] § 3.402 Surviving spouse. Awards of pension, compensation, or dependency and indemnity compensation to or for a surviving spouse will be effective as follows: (a) Additional allowance of dependency and indemnity compensation for children 3.5(e). (b) Legal surviving spouse entitled. (c) Aid and attendance and housebound benefits. (Authority: 38 U.S.C. 501; 5110(d)) (2) Date of departure from hospital, institutional or domiciliary care at Department of Veterans Affairs expense. This is applicable only to aid and attendance benefits. Housebound benefits may be awarded during hospitalization at Department of Veterans Affairs expense. (d) Medicaid-covered nursing home care. (2) If a surviving spouse who is receiving dependency and indemnity compensation and who, but for eligibility for dependency and indemnity compensation, would be eligible for survivors pension, begins receiving Medicaid-covered nursing home care, survivors pension will be effective as of the first day of the month after dependency and indemnity compensation was discontinued, if a claim for survivors pension is received within one year of the date dependency and indemnity compensation was discontinued; otherwise, it will be effective as of the date of receipt of claim or date entitlement arose, whichever is later. (Authority: 38 U.S.C. 501) [45 FR 34887, May 23, 1980, as amended at 84 FR 170, Jan. 18, 2019; 91 FR 2713, Jan. 22, 2026] § 3.403 Children. (a) Awards of pension, compensation, or dependency and indemnity compensation to or for a child, or to or for a veteran or surviving spouse on behalf of such child, will be effective as follows: (1) Permanently incapable of selfsupport (§ 3.57(a)(3)). (2) Majority (§ 13.100). (3) Posthumous child. (Authority: 38 U.S.C. 5110(n)) (4) School attendance. (5) Adopted child. (b) Monetary allowance under 38 U.S.C. 1805 for an individual suffering from spina bifida who is a child of a Vietnam veteran. (Authority: 38 U.S.C. 1805, 1832, 5110) (c) Monetary allowance under 38 U.S.C. 1815 for an individual with covered birth defects who is a child of a woman Vietnam veteran. (Authority: 38 U.S.C. 1815, 1832, 1834, 5110) (d) Monetary allowance under 38 U.S.C. 1821 for an individual suffering from spina bifida who is a child of a veteran with covered service in Korea. (Authority: 38 U.S.C. 1821, 1832, 5110) [26 FR 1594, Feb. 24, 1961, as amended at 27 FR 11889, Dec. 1, 1962; 36 FR 4599, Mar. 10, 1971; 38 FR 872, Jan. 5, 1973; 39 FR 20204, June 7, 1974; 41 FR 36493, Aug. 30, 1976; 45 FR 34887, May 23, 1980; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, July 31, 2002; 76 FR 4248, Jan. 25, 2011; 79 FR 57697, Sept. 25, 2014; 83 FR 32738, July 13, 2018] § 3.404 Parents. Awards of additional amounts of compensation and dependency and indemnity compensation based on a parent's need for aid and attendance will be effective the date of receipt of claim or date entitlement arose, whichever is later. However, when an award of dependency and indemnity compensation based on an original or supplemental claim is effective for a period prior to date of receipt of claim, any additional dependency and indemnity compensation payable by reason of need for aid and attendance may also be awarded for any part of the award's retroactive period for which entitlement to aid and attendance is established. When the parent is provided hospital, institutional or domiciliary care at Department of Veterans Affairs expense, the effective date will be the date of departure therefrom. (Authority: 38 U.S.C. 501; 5110(d)) [45 FR 34887, May 23, 1980, as amended at 84 FR 171, Jan. 18, 2019] § 3.405 Filipino veterans and their survivors; benefits at the full-dollar rate. Public Laws 106-377 and 108-183, which provide disability compensation and dependency and indemnity compensation at full-dollar rates to certain Filipino veterans and their survivors, are considered liberalizing laws. As such, the provisions of 38 CFR 3.114(a) apply when determining the effective date of an award. If the requirements of § 3.114(a) are not satisfied, then the effective date of an award of benefits at the full-dollar rate under § 3.42 will be determined as follows: (a) Initial entitlement to full-dollar rate. (1) Date entitlement arose; (2) Date on which the veteran or survivor first met the residency and citizenship or permanent resident alien status requirements in § 3.42, if VA receives evidence of this within one year of that date; or (3) Effective date of service connection, provided VA receives evidence that the veteran or survivor meets the residency and citizenship or permanent resident alien status requirements in § 3.42 within one year of the date of notification of the decision establishing service connection. (b) Resumption of full-dollar rate. (2) First day of the calendar year following the year in which the veteran or survivor was absent from the United States for a total of 183 days or more, or the first day after that date that the veteran or survivor returns to the United States. [71 FR 8221, Feb. 16, 2006] Apportionments § 3.450 General Apportionment. (a) Applicability. (b) Existing apportionments. (c) Apportionment application. (Authority: 38 U.S.C. 501(a)) [91 FR 905, Jan. 9, 2026] § 3.451 Apportionment claims. (a) General Veteran. (i) The veteran is incompetent and is being furnished hospital treatment, nursing home, or domiciliary care by the U.S., or any political subdivision thereof; or (ii) The veteran is incarcerated and meets the conditions of § 3.665 or § 3.666. (2) Surviving spouse. (b) Apportionment to a child on active duty. (c) Apportionment of death benefits. (Authority: 38 U.S.C. 5307, 5502(d)) [91 FR 905, Jan. 9, 2026] § 3.452 Veteran's benefits apportionable. A veteran's benefits may be apportioned when the veteran is receiving hospital treatment, nursing home, or domiciliary care provided by the U.S. or a political subdivision, upon receipt by VA of an application: (a) Pending appointment of fiduciary. (b) Veteran receiving hospital, domiciliary, or nursing home care Incompetent veteran Spouse or child. (ii) Dependent parent. (2) Competent veteran Section 306 pension. (ii) Improved pension. (Authority: 38 U.S.C. 501(a), 5307, 5502, 5503(a); Pub. L. 95-588, section 306, 92 Stat. 2497, 2508-2510) [91 FR 905, Jan. 9, 2026] § 3.453 Benefits not apportionable. VA will not apportion benefits: (a) Unless the spouse of a veteran files a claim for an apportionment. If there is a child of the veteran, an apportionment will not be authorized unless a claim for an apportionment is filed by or for the child. (b) To any beneficiary's dependent who is determined by VA to have been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the U.S. or its allies. (c) After September 1, 1959, if a veteran, spouse, child, dependent parent, or other primary beneficiary: (1) Forfeited benefits due to fraud or a treasonable act; or (2) Was convicted of subversive activity. Note 1 to § 3.453: See §§ 3.900 through 3.903. (Authority: 38 U.S.C. 5307, 6103(b), 6104(c), 6105(a)) [91 FR 906, Jan. 9, 2026] § 3.454 Apportionment of pension. (a) Disability pension. (b) Survivors pension. (Authority: 38 U.S.C. 5307) [91 FR 906, Jan. 9, 2026] § 3.455 Apportionment of a surviving spouse's dependency and indemnity compensation. (a) Conditions under which apportionment may be made. (b) Rates payable. (Authority: 38 U.S.C. 101(4)(A), 104(a), 5307) [91 FR 906, Jan. 9, 2026] § 3.456-461 [Reserved] Reductions and Discontinuances § 3.500 General. The effective date of a rating which results in the reduction or discontinuance of an award will be in accordance with the facts found except as provided in § 3.105. The effective date of reduction or discontinuance of an award of pension, compensation, or dependency and indemnity compensation for a payee or dependent will be the earliest of the dates stated in these paragraphs unless otherwise provided. Where an award is reduced, the reduced rate will be effective the day following the date of discontinuance of the greater benefit. (Authority: 38 U.S.C. 5112(b)) (a) Except as otherwise provided (38 U.S.C. 5112(a)). (b) Error; payee's or administrative (38 U.S.C. 5112(b), (9), (10)). (2) Except as provided in paragraph (r) of this section, and § 3.501 (e) and (g), date of last payment on an erroneous award based solely on administrative error or error in judgment. (c) Annual income. (d) Apportionment 3.450 series; § 3.556 (2) Where pension was apportioned under § 3.551(c), day preceding date of veteran's release from hospital, unless overpayment would result; date of last payment if necessary to avoid overpayment. (e) Federal employees' compensation 3.708 (Authority: 5 U.S.C. 8116) (f) Contested claims § 3.402(b) and § subpart F of part 20 of this chapter). (g) Death (38 U.S.C. 5112 (a), (b)) Payee (includes apportionee). (2) Dependent of payee (includes apportionee): (i) Death prior to October 1, 1982: last day of the calendar year in which death occurred. (ii) Death on or after October 1, 1982: last day of the month in which death occurred, except that section 306 and old-law pension reductions or terminations will continue to be effective the last day of the calendar year in which death occurred. (3) Veteran receiving retirement pay. (h) Dependency of parent (38 U.S.C. 5112; Pub. L. 90-275; 3.4(a), (b)(2), 3.250, 3.551(b) and 3.660 (i) Election of Department of Veterans Affairs benefits 3.700 series (j) Foreign residence (38 U.S.C. 5308(a)). (k) Fraud (38 U.S.C. 6103(a), (d); §§ 3.669 and 3.901). (l)-(m) [Reserved] (n) Marriage (or remarriage) Payee includes apportionee (2) Dependent of payee (includes apportionee): (i) Marriage prior to October 1, 1982: last day of the calendar year in which marriage occurred. (ii) Marriage on or after October 1, 1982: last day of the month in which marriage occurred, except that section 306 and old-law pension reductions or terminations will continue to be effective the last day of the calendar year in which marriage occurred. (3) Conduct of surviving spouse. (Authority: 38 U.S.C. 101(4), 501) (o) Penal institutions. (p) Philippines (38 U.S.C. 107(a)(3); § 3.40). (q) Renouncement 3.106 (r) Service connection (38 U.S.C. 5112(b)(6); § 3.105). (s) Treasonable acts or subversive activities Treasonable acts. (2) Subversive activities. (t) Whereabouts unknown (u) Change in law or Department of Veterans Affairs issue, or interpretation. (v) Failure to furnish evidence of continued eligibility. (w) Failure to furnish Social Security number. (x) Radiation Exposure Compensation Act of 1990 (§ 3.715). (y) Compensation for certain disabilities due to undiagnosed illnesses (§§ 3.105; 3.317). (Authority: Pub. L. 103-446; 38 U.S.C. 501(a)) (Authority: 38 U.S.C. 8301) Cross Reference: Failure to return questionnaire. See § 3.661(b). [26 FR 1596, Feb. 24, 1961] Editorial Note: For Federal Register www.govinfo.gov. § 3.501 Veterans. The effective date of discontinuance of pension or compensation to or for a veteran will be the earliest of the dates stated in this section. Where an award is reduced, the reduced rate will be payable the day following the date of discontinuance of the greater benefit. (a) Active service pay (38 U.S.C. 5112(b)(3); Pub. L. 87-825; § 3.700(a)). (b) Aid and attendance—(1) Section 3.552(b)(1). (2) Section 3.552(b)(2). (3) Aid and attendance for spouse. (c) Disappearance of veteran. (d) Divorce or annulment (38 U.S.C. 5112(b)(2)): (1) Divorce or annulment prior to October 1, 1982: last day of the calendar year in which divorce or annulment occurred. (2) Divorce or annulment on or after October 1, 1982: last day of the month in which divorce or annulment occurred, except that section 306 and old-law pension reductions or terminations will continue to be effective the last day of the calendar year in which divorce or annulment occurred. (e) Employability regained (38 U.S.C. 5112(b) (5), (6); Pub. L. 87-825; § 3.105) Pension. (2) Compensation. (f) Employment questionnaire, failure to return. (g) Evaluation reduced (38 U.S.C. 5112(b) (5), (6); Pub. L. 87-825; § 3.105) Pension. (2) Compensation. (h) Examination; failure to report. (i) Hospitalization Section 3.551(b). (2) Section 3.551(c). (3) Section 3.552(b) (4) Section 3.551(d) (ii) Last day of the third calendar month following admission for hospitalization or nursing home care if veteran without spouse or child or, though married, is receiving pension at the rate for a veteran without dependents. (iii) Upon readmission to hospital, domiciliary, or nursing home care within 6 months of a period for which pension was reduced under § 3.551(d)(1) or (2), the last day of the month of such readmission. (5) Section 3.551(e) (6) Section 3.551(h). (ii) If the veteran willfully conceals information necessary to make the reduction, the last day of the month in which that willful concealment occurred. (Authority: 38 U.S.C. 5503) (j) [Reserved] (k) Lump-sum readjustment pay. (l) Retirement pay (38 U.S.C. 5112(b)(3); Pub. L. 87-825; § 3.750). (m) Temporary increase (38 U.S.C. 5112(b)(8); § 4.29 of this chapter). (Authority: 38 U.S.C. 5505) [26 FR 1596, Feb. 24, 1961, as amended at 27 FR 11889, Dec. 1, 1962; 29 FR 12368, Aug. 28, 1964; 29 FR 16329, Dec. 5, 1964; 35 FR 2828, Feb. 11, 1970; 37 FR 6679, Apr. 1, 1972; 38 FR 34115, Dec. 11, 1973; 41 FR 55874, Dec. 23, 1976; 44 FR 45941, Aug. 6, 1979; 48 FR 34473, July 29, 1983; 53 FR 23236, June 21, 1988; 56 FR 25045, June 3, 1991; 56 FR 65849, 65853, Dec. 19, 1991; 66 FR 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003; 83 FR 32738, July 13, 2018] § 3.502 Surviving spouses. The effective date of discontinuance of pension, compensation, or dependency and indemnity compensation to or for a surviving spouse will be the earliest of the dates stated in this section. Where an award is reduced, the reduced rate will be payable the day following the date of discontinuance of the greater benefit. (Authority: 38 U.S.C. 501) (a) Additional allowance of dependency and indemnity compensation for children (38 U.S.C. 5112(b) § 3.5(e)(3). (2) If marriage occurred on or after October 1, 1982, the day preceding child's 18th birthday or last day of the month in which marriage occurred (see § 3.500(n) (2) and (3)) whichever is earlier. (b) Pay grade; dependency and indemnity compensation (38 U.S.C. 1311(a), 5112(b)(10); Pub. L. 91-96, 83 Stat. 144). (c) Legal surviving spouse entitled. (Authority: 38 U.S.C. 501) (d) Marriage. (e) Aid and attendance (§ 3.351(a)). (2) If hospitalized at Department of Veterans Affairs expense as a veteran, the date specified in § 3.552(b) (1) or (3). (f) Medicaid-covered nursing home care. (2) If the surviving spouse willfully conceals information necessary to make the reduction, the last day of the month in which that willful concealment occurred. (Authority: 38 U.S.C. 5503) [26 FR 1596, Feb. 24, 1961, as amended at 27 FR 11890, Dec. 1, 1962; 33 FR 2995, Feb. 15, 1968; 35 FR 2828, Feb. 11, 1970; 37 FR 6679, Apr. 1, 1972; 41 FR 55874, Dec. 23, 1976; 48 FR 34473, July 29, 1983; 53 FR 23237, June 21, 1988; 58 FR 32445, June 10, 1993; 91 FR 2713, Jan. 22, 2026] § 3.503 Children. (a) The effective date of discontinuance of pension, compensation, or dependency and indemnity compensation to or for a child, or to or for a veteran or surviving spouse on behalf of such child, will be the earliest of the dates stated in this section. Where an award is reduced, the reduced rate will be payable the day following the date of discontinuance of the greater benefit. (Authority: 38 U.S.C. 501) (1) Age 18 (or 23) (38 U.S.C. 5112(a); § 3.57). (2) Enters service. (Authority: 38 U.S.C. 501) (3) Permanently incapable of selfsupport (38 U.S.C. 5112(a), (b)(6); Pub. L. 87-825; §§ 3.57, 3.950) Pension. (ii) Compensation or dependency and indemnity compensation. (4) Marriage. (5) School attendance. (6) Stepchild no longer member of veteran's household 3.57 (7) Two parent cases 3.703 (8) Dependents' educational assistance 3.707, 3.807, and 21.3023 of this chapter (9) Surviving spouse becomes entitled. (Authority: 38 U.S.C. 501) (10) Interlocutory adoption decree or adoptive placement agreement. (b) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea. (c) Medicaid-covered nursing home care (§ 3.551(i)). (2) If the child or the child's custodian willfully conceals information necessary to make the reduction, the last day of the month in which that willful concealment occurred. (Authority: 38 U.S.C. 501, 1832, 5112(b)) [26 FR 1597, Feb. 24, 1961, as amended at 27 FR 11890, Dec. 1, 1962; 30 FR 14983, Dec. 3, 1965; 34 FR 839, Jan. 18, 1969; 38 FR 872, Jan. 5, 1973; 41 FR 55875, Dec. 23, 1976; 53 FR 23237, June 21, 1988; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, July 31, 2002; 76 FR 4248, Jan. 25, 2011; 83 FR 47275, Sept. 18, 2018] § 3.504 Parents; aid and attendance. The effective date of discontinuance of an increased award because of the parent's need for aid and attendance will be the day of last payment if need for aid and attendance has ceased. If hospitalized at Department of Veterans Affairs expense as a veteran the date will be specified in § 3.552(b) (1) or (3). (Authority: Pub. L. 92-197, 85 Stat. 660) [37 FR 6679, Apr. 1, 1972] § 3.505 Filipino veterans and their survivors; benefits at the full-dollar rate. The effective date of discontinuance of compensation or dependency and indemnity compensation for a Filipino veteran or his or her survivor under § 3.42 will be the earliest of the dates stated in this section. Where an award is reduced, the reduced rate will be payable the day following the date of discontinuance of the greater benefit. (a) If a veteran or survivor receiving benefits at the full-dollar rate under § 3.42 is physically absent from the U.S. for a total of 183 days or more during any calendar year, VA will reduce benefits to the rate of $0.50 for each dollar authorized under the law, effective on the 183rd day of absence from the U.S. (b) If a veteran or survivor receiving benefits at the full-dollar rate under § 3.42 is physically absent from the U.S. for more than 60 consecutive days, VA will reduce benefits to the rate of $0.50 for each dollar authorized under the law, effective on the 61st day of the absence. (c) If a veteran or survivor receiving benefits at the full-dollar rate under § 3.42 loses either U.S. citizenship or status as an alien lawfully admitted for permanent residence in the U.S., VA will reduce benefits to the rate of $0.50 for each dollar authorized under the law, effective on the day he or she no longer satisfies one of these criteria. (d) If mail to a veteran or survivor receiving benefits at the full-dollar rate under § 3.42 is returned to VA by the U.S. Postal Service, VA will make reasonable efforts to determine the correct mailing address. If VA is unable to determine the veteran's or survivor's correct address through reasonable efforts, VA will reduce benefits to the rate of $0.50 for each dollar authorized under law, effective the first day of the month that follows the month for which VA last paid benefits. (Authority: 38 U.S.C. 107) [71 FR 8221, Feb. 16, 2006] Hospitalization Adjustments § 3.551 Reduction because of hospitalization. (a) General. (1) Hospital treatment in a Department of Veterans Affairs hospital or in any hospital at Department of Veterans Affairs expense. (2) Institutional, domiciliary or nursing home care in a Department of Veterans Affairs institution or domiciliary or at Department of Veterans Affairs expense. (Authority: 38 U.S.C. 5503(a)) (b) Old-law pension. (2) Readmission following regular discharge. (3) Readmission following irregular discharge. (Authority: 38 U.S.C. 5503(a)) (c) Section 306 pension. (Authority: 38 U.S.C. 5503(a)) (2) No pension in excess of $50 monthly shall be paid to or for a veteran having neither spouse nor child, or to a veteran who is married or has a child and is receiving pension as a veteran without dependents, for any period after the month in which the veteran is readmitted within 6 months of a period of care for which pension was reduced under paragraph (c) (1) of this section. (Authority: 38 U.S.C. 5503(a)) (3) Where section 306 pension is being paid to a married veteran at a rate for a veteran without dependents all or any part of the monthly amount of pension withheld in excess of $50 may be apportioned for a spouse as provided in § 3.454(b). (d) Improved pension prior to February 1, 1990. (2) Where any veteran having neither spouse nor child, or any veteran who is married or has a child and is receiving pension as a veteran without dependents, is furnished hospital or nursing home care by VA, no pension in excess of $60 monthly shall be paid to or for the veteran for any period after the end of the third full calendar month following the month of admission for such care. (38 U.S.C. 5503(a)) (3) No pension in excess of $60 monthly shall be paid to or for a veteran having neither spouse nor child, or to a veteran who is married or has a child and is receiving pension as a veteran without dependents, for any period after the month in which the veteran is readmitted within 6 months of a period of care for which pension was reduced under paragraph (d)(1) or (2) of this section. (38 U.S.C. 5503(a)) (4) Where improved pension is being paid to a married veteran at the rate prescribed by 38 U.S.C. 1521(b) all or any part of the rate payable under 38 U.S.C. 1521(c) may be apportioned for a spouse as provided in § 3.454(b). (38 U.S.C. 5503(a)) (5) The provisions of paragraphs (d) (1), (2), and (3) of this section are not applicable to any veteran who has a child, but is receiving pension as a veteran without a dependent because it is reasonable that some part of the child's estate be consumed for the child's maintenance under 38 U.S.C. 1522(b). (6) For the purpose of paragraphs (d) (1), (2), and (3) of this section, if a veteran is furnished hospital or nursing home care by VA and then is transferred to VA-furnished domiciliary care, the period of hospital or nursing home care shall be considered as domiciliary care. Similarly, if a veteran is furnished domiciliary care by VA and then is transferred to VA-furnished hospital or nursing home care, the period of domiciliary care shall be considered hospital or nursing home care. (e) Improved pension after January 31, 1990. (Authority: 38 U.S.C. 5503(a)) (2) No pension in excess of $90 monthly shall be paid to a veteran having neither spouse nor child, or to a veteran who is married or has a child and is receiving pension as a veteran without dependents, for any period after the month in which the veteran is readmitted within six months of a period of domiciliary or nursing home care for which pension was reduced under paragraph (e)(1) of this section. (3) Where improved pension is being paid to a married veteran at the rate prescribed by 38 U.S.C. 1521(b) all or any part of the rate payable under 38 U.S.C. 1521(c) may be apportioned for a spouse as provided in § 3.454(b). (Authority: 38 U.S.C. 5503(a)) (4) For the purposes of paragraph (e)(1) of this section, if a veteran is furnished hospital care by VA and then is transferred to VA-furnished nursing home or domiciliary care, the period of hospital care shall not be considered as nursing home or domiciliary care. Transfers from VA-furnished nursing home or domiciliary care to VA-furnished hospital care then back to nursing home or domiciliary care shall be considered as continuous nursing home or domiciliary care provided the period of hospitalization does not exceed six months. Similarly, if a veteran is transferred from domiciliary or nursing home to a VA hospital and dies while so hospitalized, the entire period of VA care shall be considered as domiciliary or nursing home care. Nursing home or domiciliary care shall be considered as terminated effective the date of transfer to a VA hospital if the veteran is completely discharged from VA care following the period of hospitalization or if the period of hospitalization exceeds six months. (5) Effective February 1, 1990, reductions of improved pension based on admissions or readmissions to VA hospitals or any hospital at VA expense shall no longer be made except when required under the provisions of 38 CFR 3.552. (6) The provisions of paragraphs (e) (1) and (2) of this section are not applicable to any veteran who has a child, but is receiving pension as a veteran without a dependent because it is reasonable that some part of the child's estate be consumed for the child's maintenance under 38 U.S.C. 1522(b). (f) Computation of period. (g) Proof of dependents. (h) Hospitalization General. (i) The Chief Medical Director, or designee, certifies that the primary purpose for furnishing hospital or nursing home care during the additional period is to provide the veteran with a prescribed program of rehabilitation under chapter 17 of title 38, United States Code, designed to restore the veteran's ability to function within the veteran's family and community; and (ii) The veteran is admitted to a Department of Veterans Affairs hospital or nursing home after October 16, 1981. (2) Continued hospitalization for rehabilitation. (i) The veteran remains hospitalized or in a nursing home after the expiration of the additional period provided by paragraph (h)(1) of this section; and (ii) The Chief Medical Director, or designee, certifies that the primary purpose for furnishing continued hospital or nursing home care after the additional period provided by paragraph (h)(1) of this section is to provide the veteran with a program of rehabilitation under chapter 17 of title 38, United States Code, designed to restore the veteran's ability to function within the veteran's family and community. (3) Termination of hospitalization for rehabilitation. (Authority: 38 U.S.C. 5503(a)) (i) Certain beneficiaries receiving Medicaid-covered nursing home care. (Authority: 38 U.S.C. 5503) Cross References: Time limits. See § 3.109. Apportionment. See § 3.400(e). Reductions and discontinuances; general. See § 3.500. Incompetents; resumption. See § 3.558. [27 FR 7677, Aug. 3, 1962] Editorial Note: For Federal Register www.govinfo.gov. § 3.552 Adjustment of allowance for aid and attendance. (a)(1) When a veteran who is already entitled to the aid and attendance allowance is hospitalized, the additional compensation or increased pension for aid and attendance shall be discontinued as provided in paragraph (b) of this section except as to disabilities specified in paragraph (a)(2) of this section. (See paragraph (k) of this section for rules applicable to a veteran who establishes entitlement to the aid and attendance allowance on or after date of admission to hospitalization). (2) The allowance for aid and attendance will be continued during hospitalization where the disability is paraplegia involving paralysis of both lower extremities together with loss of anal and bladder sphincter control, or Hansen's disease, except where discontinuance is required by paragraph (b)(2) of this section. In addition, in pension cases only, the aid and attendance allowance will be continued where the pensionable disability is blindness (visual acuity 5/200 (3) Additional compensation for dependents under § 3.4(b)(2) is payable during hospitalization in addition to the rates authorized by this section. The rates specified will also be increased by amounts authorized under 38 U.S.C. 1114(k) based on independently ratable disability, subject to the statutory ceiling on the total amount of compensation payable as set forth in § 3.350(a). (b)(1) Where a veteran is admitted for hospitalization on or after October 1, 1964, the additional compensation or increased pension for aid and attendance will be discontinued effective the last day of the month following the month in which the veteran is admitted for hospitalization at the expense of the Department of Veterans Affairs. (2) When a veteran is hospitalized at the expense of the United States Government, the additional aid and attendance allowance authorized by 38 U.S.C. 1114(r)(1) or (2) or 38 U.S.C. 1114(t) will be discontinued effective the last day of the month following the month in which the veteran is admitted for hospitalization. (3) Where a veteran affected by the provisions of paragraph (b) (1) and (2) or paragraph (k) of this section is discharged or released from the hospital against medical advice or as the result of disciplinary action, and is readmitted to such hospitalization within 6 months after that date, the allowance, additional compensation, or increased pension will be discontinued effective the day preceding the date of readmission. A readmission 6 months or more after such discharge or release will be considered as a new admission. (c) Reduction will not be made where the same monthly rate of compensation would be payable without consideration of need for regular aid and attendance. This can only be determined after careful review of the current maximum entitlement without regard to any amount for aid and attendance. (d) Where entitlement by reason of need for regular aid and attendance is the basis of the monthly rate under 38 U.S.C. 1114(1) the award will be reduced to the rate payable under 38 U.S.C. 1114(s). (e) Where a veteran is in receipt of section 306 pension, the aid and attendance allowance shall be reduced to the housebound rate of $61 monthly (or $76.25 if the veteran was age 78 or older on December 31, 1978). Where a veteran is in receipt of old-law pension, the total amount payable shall be reduced to $100 monthly. Where a veteran is in receipt of improved pension, the applicable aid and attendance rate shall be reduced to the otherwise applicable rate under 38 U.S.C. 1521(e). No reduction shall be made, however, for any case involving the disabilities specified in paragraph (a)(2) of this section. (f) Where entitlement to the rate in 38 U.S.C. 1114(o) is based in part on need for regular aid and attendance reduction because of being hospitalized will be to the rate payable for the other conditions shown. (g) Where a veteran entitled to one of the rates under 38 U.S.C. 1114 (l), (m), or (n) by reason of anatomical losses or losses of use of extremities, blindness (visual acuity 5/200 or less or light perception only), or anatomical loss of both eyes is being paid compensation at the rate under 38 U.S.C. 1114(o) because of entitlement to another rate under section 1114(l) on account of need for aid and attendance, the compensation will be reduced while hospitalized to the following: (1) If entitlement is under section 1114(l) and in addition there is need for regular aid and attendance for another disability, the award during hospitalization will be at the rate under 38 U.S.C. 1114(m) since the disability requiring aid and attendance is 100 percent disabling. (Authority: 38 U.S.C. 1114(p)) (2) If entitlement is under section 1114(m), at the rate under 38 U.S.C. 1114(n). (3) If entitlement is under section 1114(n), the rate under 38 U.S.C. 1114(o) would be continued, since the disability previously causing the need for regular aid and attendance would then be totally disabling entitling the veteran to the maximum rate under 38 U.S.C. 1114(p). (h) If, because of blindness, a veteran requires regular aid and attendance, but has better vision than “light perception only” the award under 38 U.S.C. 1114(m) will be reduced while hospitalized to the rate payable under 38 U.S.C. 1114(1). (i) If the disability meets the aid and attendance requirements of 38 U.S.C. 1114(l) and the intermediate or next higher rate was assigned for disability independently ratable at 50 percent or 100 percent, the award based on such entitlement will be reduced because of hospitalization to the amount payable under 38 U.S.C. 1114(s). (j) The section 306 pension aid and attendance allowance authorized by § 3.252(f) is subject to reduction for hospitalization under the provisions of this section in the same manner as the regular section 306 pension aid and attendance allowance. The amount payable shall not be reduced to less than the housebound rate of $61 monthly (or $76.25 monthly if the veteran was age 78 or older on December 31, 1978). (k)(1) This paragraph is applicable to hospitalized veterans who were not entitled to the aid and attendance allowance prior to hospital admission but who establish entitlement to it on or after the date of hospital admission. (2) If the effective date of entitlement to the aid and attendance allowance is on or after the date of admission to hospitalization, the aid and attendance allowance shall not be paid until the date of discharge or release from hospitalization, unless the aid and attendance allowance is based on a disability specified in paragraph (a)(2) of this section. If the aid and attendance allowance is based on a disability specified in paragraph (a)(2) of this section, the aid and attendance allowance shall be paid during hospitalization. (3) If the aid and attendance allowance is not payable to a veteran under paragraph (k)(2) of this section, the veteran shall receive the appropriate reduced rate under paragraphs (d) through (j) of this section while hospitalized. (Authority: 38 U.S.C. 5503(c)) [28 FR 1588, Feb. 20, 1963, as amended at 30 FR 14983, Dec. 3, 1965; 32 FR 13226, Sept. 19, 1967; 37 FR 19133, Sept. 19, 1972; 38 FR 34115, Dec. 11, 1973; 41 FR 55875, Dec. 23, 1976; 44 FR 22721, Apr. 17, 1979; 44 FR 45941, Aug. 6, 1979; 46 FR 31011, June 12, 1981; 46 FR 47541, Sept. 29, 1981; 68 FR 34542, June 10, 2003; 83 FR 20737, May 8, 2018] §§ 3.553-3.555 [Reserved] § 3.556 Adjustment on discharge or release. (a) Temporary Absence—30 days. (2) Upon the veteran's return to the hospital, an award which is subject to reduction under § 3.551 (b) or (c) will again be reduced effective the date of the veteran's return to the hospital. In all instances, any allowance for regular aid and attendance will be discontinued, if in order, effective the date of the veteran's return to the hospital. (b) Temporary absence—less than 30 days. (c) Adjustment based on need. (d) Irregular discharge. (e) Regular discharge. (f) Types of discharges. (Authority: 38 U.S.C. 5503) [27 FR 7678, Aug. 3, 1962, as amended at 27 FR 8794, Sept. 1, 1962; 38 FR 34115, Dec. 11, 1973; 39 FR 34532, Sept. 26, 1974; 40 FR 45169, Oct. 1, 1975; 44 FR 22721, Apr. 17, 1979; 44 FR 45942, Aug. 6, 1979; 50 FR 50616, Dec. 11, 1985; 91 FR 906, Jan. 9, 2026] § 3.557 [Reserved] § 3.558 Resumption and payment of withheld benefits; incompetents with estates that equaled or exceeded statutory limit. (a) Payments for the veteran will be resumed and apportionment awards discontinued under the applicable provisions of § 3.556(a), (d), and (e) upon authorized absence from the hospital for 30 days or more or a regular or irregular discharge or release. Care and maintenance payments to an institution will not be made for any period the veteran is not receiving such care and maintenance. (b) Any amount not paid because of the provisions of former § 3.557(b) (as in effect prior to December 27, 2001), and any amount of compensation or retirement pay withheld pursuant to the provisions of § 3.551(b) (and/or predecessor regulatory provisions) as it was constituted prior to August 1, 1972, and not previously paid because of the provisions of former § 3.557(b) (as in effect prior to December 27, 2001), will be awarded to the veteran if he or she is subsequently rated competent by VA for a period of not less than six months. (Authority: 38 U.S.C. 5503) [27 FR 7679, Aug. 3, 1962, as amended at 36 FR 25225, Dec. 30, 1971; 38 FR 34116, Dec. 11, 1973; 40 FR 45170, Oct. 1, 1975; 41 FR 18412, May 4, 1976; 50 FR 50617, Dec. 11, 1985; 58 FR 34224, June 24, 1993; 66 FR 48560, Sept. 21, 2001; 68 FR 34542, June 10, 2003] § 3.559 [Reserved] Adjustments and Resumptions § 3.650 Rate for additional dependent. (a) Running awards. (1) Where benefits would be payable from a date prior to the date of filing claim, the reduction will be effective from the date of potential entitlement of the additional dependent. (2) Where benefits would be payable from the date of filing claim, the reduction will be effective the date of receipt of the claim by the additional dependent, or date of last payment, whichever is later. If entitlement of the additional dependent is not established, benefits previously being paid will be resumed, if otherwise in order, commencing the day following the effective date of reduction. (b) New awards. (c) Retroactive DIC award to a school child General. (2) Applicability. (i) The additional child was receiving DIC under 38 U.S.C. 1313(a) prior to attaining age 18; and (ii) DIC for the additional child was discontinued on or after attainment of age 18; and (iii) After DIC has been discontinued, the additional child reestablishes entitlement to DIC under 38 U.S.C. 1313(a) based on attendance at an approved school and the effective date of entitlement is prior to the date the Department of Veterans Affairs receives the additional child's claim to reestablish entitlement. (Authority: 38 U.S.C. 1313(b)) (3) Effective date. [29 FR 9564, July 15, 1964, as amended at 47 FR 24551, June 7, 1982] § 3.651 Change in status of dependents. Except as otherwise provided: (a) A payee who becomes entitled to pension, compensation, or dependency and indemnity compensation or to a greater rate because payment of that benefit to another payee has been reduced or discontinued will be awarded the benefit or increased benefit without the filing of a new claim. (b) The commencement or adjustment will be effective the day following the reduction or discontinuance of the award to the other payee if the necessary evidence is received in the Department of Veterans Affairs within 1 year from the date of request therefor; otherwise from the date of receipt of a new claim. (c) The rate for the persons entitled will be the rate that would have been payable if they had been the only original persons entitled. [26 FR 1598, Feb. 24, 1961, as amended 27 FR 11890, Dec. 1, 1962; 30 FR 133, Jan. 7, 1965] § 3.652 Periodic certification of continued eligibility. Except as otherwise provided: (a) Individuals to whom benefits are being paid are required to certify, when requested, that any or all of the eligibility factors which established entitlement to the benefit being paid continue to exist. The beneficiary will be advised at the time of the request that the certification must be furnished within 60 days from the date of the request therefor and that failure to do so will result in the reduction or termination of benefits. (1) If the certification is not received within 60 days from the date of the request, the eligibility factor(s) for which certification was requested will be considered to have ceased to exist as of the end of the month in which it was last shown by the evidence of record to have existed. For purposes of this paragraph, the effective date of reduction or termination of benefits will be in accordance with §§ 3.500 through 3.504 as in effect on the date the eligibility factor(s) is considered to have ceased to exist. The claimant will be advised of the proposed reduction or termination of benefits and the date the proposed action will be effective. An additional 60 days from the date of notice of the proposed action will be provided for the claimant to respond. (2) If the certification is not received within the additional 60 day period, the proposed reduction or termination of benefits will be put into effect. (b) When the required certification is received, benefits will be adjusted, if necessary, in accordance with the facts found. (Authority: 38 U.S.C. 501) Cross References: Employment Questionnaire, failure to return. See § 3.501(f). Income and Net Worth Questionnaires. See § 3.661. [52 FR 43063, Nov. 9, 1987] § 3.653 Foreign residence. (a) General. (Authority: 38 U.S.C. 5308) (b) Retroactive payments. (Authority: 38 U.S.C. 5309) (c) Treasury Department list. (1) Evidence requests. (2) Awards. (3) Retroactive payments. (d) Germany and Japan. (Authority: 38 U.S.C. 5309(b)) [26 FR 1599, Feb. 24, 1961, as amended at 31 FR 13172, Oct. 12, 1966; 47 FR 24551, June 7, 1982] § 3.654 Active service pay. (a) General. (b) Active duty or active duty for training. (2) Payments, if otherwise in order, will be resumed effective the day following release from active duty or active duty for training if notice from the Department of Defense of such release or a claim for recommencement of payments is received within one year from the date of such release; otherwise, payments will be resumed effective one year prior to the date of receipt of a new claim. Prior determinations of service connection will not be disturbed except as provided in § 3.105. Compensation will be resumed based on the combined evaluation in effect at the time payments were discontinued. If a reduction in evaluation that lowers the combined evaluation is considered warranted, the provisions of § 3.105(e) will apply. If a disability is incurred or aggravated, or a service-connected disability worsens in the most recent period of service, compensation for that disability or increase in disability cannot be paid unless a claim therefor is filed. (c) Training duty. (Authority: 38 U.S.C. 501(a) and 5304(c)) [27 FR 11890, Dec. 1, 1962, as amended at 88 FR 86062, Dec. 12, 2023] § 3.655 Failure to report for Department of Veterans Affairs examination. (a) General. examination reexamination (b) Original or supplemental claim, or claim for increase. (c) Running award. (2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later. (3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed. (4) If within 30 days of a pretermination notice issued under paragraph (c)(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in § 3.105(i)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph (c)(3) of this section shall apply. (Authority: 38 U.S.C. 501) Cross References: Procedural due process and appellate rights: See § 3.103. Examinations: See § 3.326. Reexaminations: See § 3.327. Resumption of rating when veteran subsequently reports for VA examination: See § 3.330. [55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993; 80 FR 18117, Apr. 3, 2015; 84 FR 171, Jan. 18, 2019] § 3.656 Disappearance of veteran. (a) When any veteran has disappeared for 90 days or more and his or her whereabouts remain unknown to the members of his or her family and the Department of Veterans Affairs, disability compensation which he or she was receiving or entitled to receive may be paid to or for his or her spouse, children and parents, effective the day following the date of last payment to the veteran if a claim is received within 1 year after that date; otherwise from the date of receipt of a claim. The total amount payable will be the lesser of these amounts: (1) Dependency and indemnity compensation. (2) Amount of compensation payable to the veteran at the time of disappearance, subject to authorized insurance deductions. (b) Where a veteran's whereabouts become known to the Department of Veterans Affairs after an award to dependents has been made as provided in this section, the award to the dependents will be discontinued effective date of last payment, and appropriate action will be taken to adjust the veteran's award in accordance with the facts found. (Authority: 38 U.S.C. 1158) (c) Awards to dependents will not be continued under this section in any case where the facts are such as to bring into effect the presumption of death under § 3.212. (d) When any veteran has disappeared for 90 days or more and the veteran's whereabouts remain unknown to members of the veteran's family and the Department of Veterans Affairs, any improved pension, section 306 or service pension which the veteran was receiving or entitled to receive may be paid to or for the spouse or children. The status of the veteran at the time of disappearance, with respect to permanent and total disability, income and net worth will be presumed to continue unchanged. Payment for the spouse or children will be effective the day following the date of last payment to the veteran if a claim is received within 1 year after that date; otherwise from date of receipt of a claim. The total amount payable will be the lesser of these amounts: (1) The service survivors pension rate if the veteran was receiving service pension or the improved survivors pension rate if the veteran was receiving section 306 or improved pension. (2) The amount of pension payable to the veteran at the time of disappearance. (Authority: 38 U.S.C. 1507) [26 FR 1599, Feb. 24, 1961, as amended at 27 FR 11891, Dec. 1, 1962; 30 FR 6649, May 14, 1965; 40 FR 14313, Mar. 31, 1975; 44 FR 45942, Aug. 6, 1979] § 3.657 Surviving spouse becomes entitled, or entitlement terminates. Where a surviving spouse establishes entitlement to pension, compensation, or dependency and indemnity compensation, an award to another person as surviving spouse, or for a child or children as if there were no surviving spouse will be discontinued or adjusted as provided in this section. (a) Surviving spouse's awards. (1) Where benefits are payable to the legal surviving spouse from a date prior to the date of filing claim, the award to the former payee will be terminated the day preceding the effective date of the award to the legal surviving spouse. (2) Where benefits are payable to the legal surviving spouse from the date of filing claim, the award to the former payee will be terminated effective the date of receipt of the claim or date of last payment, whichever is later. (b) Children's awards. (i) Payments were being made for a child or children at a lower monthly rate than that provided where there is a surviving spouse, the award to the surviving spouse will be effective the date provided by the applicable law, and will be the difference between the rate paid for the children and the rate payable for the surviving spouse and children. The full rate will be payable for the surviving spouse effective the day following the date of last payment for the children; (ii) Payments were being made for a child or children at the same or higher monthly rate than that provided where there is a surviving spouse, the award to the surviving spouse will be effective the day following the date of last payment on the awards on behalf of the children. (2) Where a surviving spouse has received benefits after entitlement was terminated and, (i) The child or children were entitled to a lower monthly rate, the award to the surviving spouse will be amended to authorize payment at the rate provided for the children as if there were no surviving spouse, covering the period from the date the surviving spouse's entitlement terminated to the date of last payment. The award for the child or children will be made effective the following day. (ii) The child or children were entitled to a higher monthly rate, the award to the surviving spouse will be discontinued effective date of last payment. The award to the children will be effective the day following the date the surviving spouse's entitlement terminated and will be the difference between the rate payable for the children and the rate paid on the surviving spouse's award. The full rate will be payable for the children effective the day following the date of last payment to the surviving spouse. [39 FR 20204, June 7, 1974, as amended at 44 FR 45942, Aug. 6, 1979] § 3.658 Offsets; dependency and indemnity compensation. (a) When an award of dependency and indemnity compensation is made covering a period for which death compensation or benefits under the Federal Employee's Compensation Act, based on military service, have been paid to the same payee based on the same death, the award of dependency and indemnity compensation will be made subject to an offset of payments of death compensation or benefits under the Federal Employees' Compensation Act over the same period. (b) When an award of dependency and indemnity compensation is made covering a period for which death benefits have been paid to the same payee based on the death of another spouse the award will be made subject to an offset of payments of survivors pension or death compensation, or dependency and indemnity compensation over the same period in the case of the other spouse. (Authority: 38 U.S.C. 103(d)(2), 5304(b)(3)) [41 FR 17387, Apr. 26, 1976, as amended at 91 FR 2713, Jan. 22, 2026] § 3.659 Two parents in same parental line. The provisions of this section are applicable for periods commencing on or after January 1, 1957 in cases involving payments of death compensation or dependency and indemnity compensation, and in addition, for periods commencing on or after June 9, 1960, in cases involving payments of survivors pension based on death on or after that date. (a) If survivors pension, compensation or dependency and indemnity compensation is payable based on the service of one parent, an award of such benefits to or on account of a child will be made subject to any payments of these benefits made to or on account of that child over the same period of time based on the service of another parent in the same parental line. (b) Any reduction or discontinuance of an award to the child or to a surviving spouse will be effective the day preceding the commencing date of survivors pension, compensation, or dependency and indemnity compensation or, under the circumstances described in § 3.707, the commencing date of dependents' educational assistance under 38 U.S.C. ch. 35, to or on account of the child based on the service of another parent in the same parental line. Any increase to a surviving spouse or another child will be effective the commencing date of the award to the child. Cross Reference: Two-parent cases. See § 3.503(a)(7). Two parents in same parental line. See § 3.703. [27 FR 4917, May 25, 1962, as amended at 29 FR 9564, July 15, 1964; 41 FR 17387, Apr. 26, 1976] § 3.660 Dependency, income and estate. (a) Reduction or discontinuance General. (2) Effective dates. (Authority: 38 U.S.C. 5112(b)) (3) Overpayments. (b) Award or increase; income. (1) Anticipated income. (Authority: 38 U.S.C. 5110(h)) (2) Actual income. (c) Increases; change in status. (d) Corpus of estate; net worth. [30 FR 3354, Mar. 12, 1965, as amended at 44 FR 45942, Aug. 6, 1979; 48 FR 34473, July 29, 1983; 57 FR 59300, Dec. 15, 1992; 79 FR 57697, Sept. 25, 2014; 83 FR 47275, Sept. 18, 2018] § 3.661 Eligibility Verification Reports. (a) Determination and entitlement. (2) Where there is doubt as to the extent of anticipated income payment of pension or dependency and indemnity compensation will be authorized at the lowest appropriate rate or will be withheld, as provided in § 3.260(b) or § 3.271 (f). (b) Failure to return report Section 306 and old-law pension Discontinuance. (ii) Resumption of benefits. (2) Improved pension and dependency and indemnity compensation Discontinuance. (ii) Adjustment of overpayment. (iii) Resumption of benefits. (Authority: 38 U.S.C. 501) [30 FR 3355, Mar. 12, 1965, as amended at 44 FR 45942, Aug. 6, 1979; 46 FR 55098, Nov. 6, 1981; 57 FR 59300, Dec. 15, 1992] §§ 3.662-3.664 [Reserved] § 3.665 Incarcerated beneficiaries and fugitive felons—compensation. (a) General. (b) Definitions. compensation dependency and indemnity compensation release from incarceration (c) Applicability. (1) A person serving a period of incarceration for conviction of a felony committed after October 7, 1980. (2) A person serving a period of incarceration after September 30, 1980 (regardless of when the felony was committed) when the following conditions are met: (i) The person was incarcerated on October 1, 1980; and (ii) An award of compensation or DIC is approved after September 30, 1980. (3) A veteran who, on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date, and who remains so incarcerated for a conviction of that felony as of December 27, 2001. (d) Amount payable during incarceration Veteran rated 20 percent or more. (2) Veteran rated less than 20 percent. (3) Surviving spouse, parent or child. (e) Apportionment Compensation. (2) DIC. (f) Effective dates. (g) Incarcerated dependent. (h) Notice to dependent for whom apportionment granted. (i) Resumption upon release No apportionment. (i) The rate that was payable to the apportionee; and (ii) The rate payable during incarceration. (2) Apportionment to a dependent parent. (j) Increased compensation during incarceration General. (2) Veteran subject to reduction under paragraphs (a) and (c) of this section. (i) If the veteran's schedular evaluation is increased from 10 percent to 20 percent or greater, the amount payable to the veteran shall be increased from one-half the rate payable under 38 U.S.C. 1114(a) to the rate payable under section 1114(a). (ii) If the veteran's schedular evaluation was 20 percent or more, none of the increased compensation shall be paid to the veteran while the veteran remains incarcerated. (3) Veteran's compensation not subject to reduction under paragraphs (a) and (c) of this section prior to award of increased compensation. (i) The veteran remains incarcerated after October 7, 1980 in a Federal, State, or local penal institution for conviction of a felony; and (ii) The award of increased compensation is approved after October 7, 1980. If the effective date of the increase is prior to October 8, 1980, the amount payable for periods prior to October 8, 1980, shall not be reduced. (4) Apportionments. (k) Retroactive awards. (l) DIC parents. (m) Conviction overturned on appeal. (n) Fugitive felons. (2) For purposes of this section, the term fugitive felon (i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law. (3) For purposes of paragraph (n) of this section, the term felony (4) For purposes of paragraph (n) of this section, the term dependent (Authority: 38 U.S.C. 501(a), 5313, 5313B; Sec. 506, Pub. L. 107-103, 115 Stat. 996-997) [46 FR 47542, Sept. 29, 1981, as amended at 68 FR 34542, June 10, 2003; 79 FR 57697, Sept. 25, 2014; 91 FR 906, Jan. 9, 2026] § 3.666 Incarcerated beneficiaries and fugitive felons—pension. If any individual to or for whom pension is being paid under a public or private law administered by the Department of Veterans Affairs is imprisoned in a Federal, State or local penal institution as the result of conviction of a felony or misdemeanor, such pension payments will be discontinued effective on the 61st day of imprisonment following conviction. The payee will be informed of his or her rights and the rights of dependents to payments while he or she is imprisoned as well as the conditions under which payments to him or to her may be resumed on his or her release from imprisonment. However, no apportionment will be made if the veteran or the dependent is a fugitive felon as defined in paragraph (e) of this section. Payments of pension authorized under this section will continue until notice is received by the Department of Veterans Affairs that the imprisonment has terminated. (a) Disability pension. (1) If the veteran continues to be eligible except for the provisions of this section, and (2) If the annual income of the spouse or child is such that survivors pension would be payable. (3) At the rate payable under the survivors pension law or the rate which the veteran was receiving at the time of imprisonment, whichever is less. (4) From the day following the date of discontinuance of payments to the veteran, subject to payments made to the veteran over the same period, if a claim or intent to file a claim as set forth in § 3.155(b) is received within 1 year after notice to the veteran as required by this section and any necessary evidence is received within 1 year from the date of request; otherwise payments may not be made for any period prior to the date of receipt of a new claim or intent to file a claim as set forth in § 3.155(b). (b) Survivors pension. (1) If surviving spouse is disqualified to child or children at the rate of survivors pension payable if there were no such surviving spouse; or (2) If a child is disqualified, to a surviving spouse or other child or children at the rate of survivors pension payable if there were no such child, and (3) From the day following the date of discontinuance of payments to the disqualified person, subject to payments made to that person over the same period if evidence of income is received within 1 year after date of request; otherwise payments may not be made for any period prior to the date of receipt of a claim or intent to file a claim as set forth in § 3.155(b). (4) The income limitation applicable to eligible persons will be that which would apply if the imprisoned person did not exist. (c) Resumption of pension upon release from incarceration. (d) Veteran entitled to compensation. (e) Fugitive felons. (2) For purposes of this section, the term fugitive felon (i) Fleeing to avoid prosecution, or custody or confinement after conviction for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or (ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law. (3) For purposes of paragraph (e) of this section, the term felony (4) For purposes of paragraph (e) of this section, the term dependent (Authority: 38 U.S.C. 501(a), 5313, 5313B) [26 FR 1601, Feb. 24, 1961, as amended at 40 FR 6971, Feb. 18, 1975; 40 FR 22254, May 22, 1975; 44 FR 45943, Aug. 6, 1979; 46 FR 47543, Sept. 29, 1981; 62 FR 5529, Feb. 6, 1997; 68 FR 34543, June 10, 2003; 79 FR 57697, Sept. 25, 2014] § 3.667 School attendance. (a) General. (2) Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course if a claim is filed within 1 year from that date. (3) An initial award of DIC (dependency and indemnity compensation) to a child in the child's own right is payable from the first day of the month in which the child attains age 18 if the child was pursuing a course of instruction at an approved educational institution on the child's 18th birthday, and if a claim for benefits is filed within 1 year from the child's 18th birthday. In the case of a child who attains age 18 after September 30, 1981, if the child was, immediately before attaining age 18, counted under 38 U.S.C. 1311(b) for the purpose of determining the amount of DIC payable to the surviving spouse, the effective date of an award of DIC to the child shall be the date the child attains age 18 if a claim for DIC is filed within 1 year from that date. (Authority: 38 U.S.C. 5110(e)) (4) An initial award of dependency and indemnity compensation to a child in its own right based upon a course of instruction at an approved educational institution which was begun after the child's 18th birthday may be paid from the first day of the month in which the course commenced if a claim is filed within 1 year from that date. (Authority: 38 U.S.C. 5110(e)) (5) Where a child was receiving dependency and indemnity compensation in its own right prior to age 18, payments may be continued from the 18th birthday if the child was then attending an approved educational institution and evidence of such school attendance is received within 1 year from the 18th birthday. Where the child was receiving dependency and indemnity compensation in its own right prior to age 18 and was not attending an approved educational institution on the 18th birthday but commences attendance at an approved educational institution after the 18th birthday, payments may be resumed from the commencing date of the course if evidence of such school attendance is filed within 1 year from that date. (b) Vacation periods. (c) Ending dates. (Authority: 38 U.S.C. 5112(b)(7)) (d) Transfers to other schools. (e) Accrued benefits only. (Authority: 38 U.S.C. 5112(b)(7)) (f) Nonduplication. (1) After a child has elected to receive educational assistance under 38 U.S.C. chapter 35 (see § 3.707 and § 21.3023 of this chapter); or (2) Based on an educational program in a school where the child is wholly supported at the expense of the Federal Government, such as a service academy. Cross Reference: Dependents' educational assistance. See § 3.707. [26 FR 1601, Feb. 24, 1961, as amended at 30 FR 14983, Dec. 3, 1965; 32 FR 12114, Aug. 23, 1967; 34 FR 839, Jan. 18, 1969; 40 FR 22254, May 22, 1975; 47 FR 24552, June 7, 1982; 65 FR 12116, Mar. 8, 2000] § 3.668 [Reserved] § 3.669 Forfeiture. (a) General. (b) Fraud or treasonable act Fraud. (2) Treasonable acts. (c) Subversive activities. (d) Pardons. (2) Payments to a dependent of the person whose benefits were declared forfeited before September 2, 1959, will be discontinued effective the day preceding the date of the pardon. (Authority: 38 U.S.C. 501) Cross References: Fraud. See § 3.901. Treasonable acts. See § 3.902. Subversive activities. See § 3.903. [27 FR 8616, Aug. 29, 1962, as amended 28 FR 5618, June 7, 1963; 39 FR 28630, Aug. 9, 1974; 46 FR 34801, July 6, 1981; 71 FR 52290, Sept. 5, 2006] Concurrent Benefits and Elections § 3.700 General. Not more than one award of pension, compensation, or emergency officers', regular or reserve retirement pay will be made concurrently to any person based on his or her own service except as provided in § 3.803 relating to naval pension and § 3.750(c) relating to waiver of retirement pay. Not more than one award of pension, compensation, or dependency and indemnity compensation may be made concurrently to a dependent on account of more than one period of service of a veteran. (Authority: 38 U.S.C. 5304(a)) (a) Veterans Active service pay. (Authority: 38 U.S.C. 5304(c)) (ii) Time spent by members of the ROTC in drills as part of their activities as members of the corps is not active service. (iii) Reservists may waive their pension, compensation, or retirement pay for periods of field training, instruction, other duty or drills. A waiver may include prospective periods and contain a right of recoupment for the days for which the reservists did not receive payment for duty by reason of failure to report for duty. (2) Lump-sum readjustment pay. (Authority: 38 U.S.C. 501) (ii) Readjustment pay authorized under former 10 U.S.C. 3814(a) is not subject to recoupment through withholding of disability compensation, entitlement to which was established prior to September 15, 1981. (Authority: 38 U.S.C. 501) (iii) Where entitlement to disability compensation was established on or after September 15, 1981, a veteran who has received a lump-sum readjustment payment may receive disability compensation for disability incurred in or aggravated by service prior to the date of receipt of the lump-sum readjustment payment, subject to recoupment of the readjustment payment. Where payment of readjustment pay was made on or before September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay. Where payment of readjustment pay was made after September 30, 1996, VA will recoup from disability compensation an amount equal to the total amount of readjustment pay less the amount of Federal income tax withheld from such pay. (Authority: 10 U.S.C. 1174(h)(2)) (iv) The receipt of readjustment pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting readjustment pay based on a prior period of service. (Authority: 10 U.S.C. 1174(h)(2)) (3) Severance pay. (Authority: 10 U.S.C. 1174(h)(2) and 1212(d)) (4) Improved pension. (Authority: 38 U.S.C. 1521(i)) (5) Separation pay and special separation benefits. (ii) The receipt of separation pay does not affect the payment of disability compensation based on a subsequent period of service. Compensation payable for service-connected disability incurred or aggravated in a subsequent period of service will not be reduced for the purpose of offsetting separation pay based on a prior period of service. (iii) Where payment of special separation benefits under 10 U.S.C. 1174a was made on or after December 5, 1991, VA will recoup from disability compensation an amount equal to the total amount of special separation benefits less the amount of Federal income tax withheld from such pay. The Federal income tax withholding amount is the flat withholding rate for Federal income tax withholding. (Authority: 10 U.S.C. 1174 and 1174a) (b) Dependents Surviving spouse. (Authority: 38 U.S.C. 5304) (2) Children. (3) Parents. (Authority: 38 U.S.C. 5304(b)) [26 FR 1601, Feb. 24, 1961, as amended at 29 FR 11359, Aug. 6, 1964; 29 FR 15207, Nov. 11, 1964; 30 FR 11389, Sept. 8, 1965; 35 FR 10648, July 1, 1970; 40 FR 59346, Dec. 23, 1975; 44 FR 45943, Aug. 6, 1979; 52 FR 27340, July 21, 1987; 56 FR 1111, Jan. 11, 1991; 67 FR 60868, Sept. 27, 2002; 74 FR 26957, June 5, 2009; 74 FR 36610, July 24, 2009] § 3.701 Elections of pension or compensation. (a) General. (Authority: 38 U.S.C. 501) (b) Form of election. (c) Change from one law to another. [26 FR 1602, Feb. 24, 1961, as amended at 36 FR 12618, July 2, 1971; 44 FR 45943, Aug. 6, 1979; 79 FR 57697, Sept. 25, 2014] § 3.702 Dependency and indemnity compensation. (a) Right to elect. (b) Effect on child's entitlement. (c) Limitation. (d) Finality of election. (2) A surviving spouse's receipt of survivors pension at the rate provided for in 38 U.S.C. 5503(d) in lieu of dependency and indemnity compensation will not be a bar to the surviving spouse's receipt of such compensation in the event the surviving spouse becomes ineligible for survivors pension at the rate provided for in 38 U.S.C. 5503(d). (Authority: 38 U.S.C. 1317) (e) Surviving spouse becomes entitled. (f) Survivors pension rate. (2) Effective June 22, 1966, where the monthly rate of dependency and indemnity compensation payable to a surviving spouse who has children is less than the monthly rate of survivors pension which would be payable for the children if the veteran's death had not been service connected and the surviving spouse were not entitled to such pension, dependency and indemnity compensation shall be payable to the surviving spouse in an amount equal to the monthly rate of survivors pension which would be payable to the children for any month (or part thereof) in which this rate is greater. (g) Medal of Honor pension. (Authority: 38 U.S.C. 1562(a)(2)(C)) Cross Reference: Deaths prior to January 1, 1957. See § 3.400(c)(3)(i). [35 FR 18661, Dec. 9, 1970, as amended at 39 FR 20205, June 7, 1974; 41 FR 17387, Apr. 26, 1976; 44 FR 45943, Aug. 6, 1979; 60 FR 18356, Apr. 11, 1995; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. 6, 1997; 87 FR 68363, Nov. 15, 2022; 91 FR 2713, Jan. 22, 2026] § 3.703 Two parents in same parental line. (a) General. (b) Election. (c) Other payees. Cross References: Two-parent cases. See § 3.503(a)(7). Two parents in same parental line. See § 3.659. [27 FR 4993, May 29, 1962, as amended at 39 FR 20205, June 7, 1974] § 3.704 Elections within class of dependents. (a) Children. (b) Parents. [26 FR 1602, Feb. 24, 1961, as amended at 27 FR 4993, May 29, 1962; 34 FR 839, Jan. 18, 1969; 39 FR 20205, June 7, 1974; 54 FR 34981, Aug. 23, 1989] §§ 3.705-3.706 [Reserved] § 3.707 Dependents' educational assistance. (a) Child. (b) Spouse or surviving spouse. Cross References: Discontinuance. See § 3.503(a)(8). Certification. See § 3.807. [34 FR 840, Jan. 18, 1969, as amended at 41 FR 29120, July 15, 1976] § 3.708 Federal Employees' Compensation. (a) Military service Initial election. (2) Right of reelection. (3) Rights of children. (4) Entitlement based on 38 U.S.C. 1151. (b) Civilian employment Same disability or death. (2) Not the same disability or death. [39 FR 18099, May 23, 1974, as amended at 41 FR 29120, July 15, 1976; 44 FR 45943, Aug. 6, 1979; 69 FR 46435, Aug. 3, 2004] § 3.710 Civil service annuitants. Department of Veterans Affairs benefits may be paid concurrently with civil service retirement benefits. However, payments will be considered income as provided in § 3.262 (e) and (h). [29 FR 15208, Nov. 11, 1964] § 3.711 Improved pension elections. Except as otherwise provided by this section and § 3.712, a person entitled to receive section 306 or old-law pension on December 31, 1978, may elect to receive improved pension under the provisions of 38 U.S.C. 1521, 1541, or 1542 as in effect on January 1, 1979. Except as provided by § 3.714, an election of improved pension is final when the payee (or the payee's fiduciary) negotiates one check for this benefit and there is no right to reelection. Any veteran eligible to make an election under this section who is married to a veteran who is also eligible to make such an election may not receive improved pension unless the veteran's spouse also elects to receive improved pension. (Authority: Sec. 306(a)(1) of Pub. L. 95-588, 92 Stat. 2497) [46 FR 11661, Feb. 10, 1981] § 3.712 Improved pension elections; surviving spouses of Spanish-American War veterans. (a) General. (b) Aid and attendance. (Authority: 38 U.S.C. 1536) [44 FR 45943, Aug. 6, 1979, as amended at 46 FR 11661, Feb. 10, 1981; 61 FR 67950, Dec. 26, 1996] § 3.713 Effective dates of improved pension elections. (a) General. (b) Persons entitled to pension on December 31, 1978. (Authority: Sec. 306(d) of Pub. L. 95-588, 92 Stat. 2497). [44 FR 45944, Aug. 6, 1979] § 3.714 Improved pension elections—public assistance beneficiaries. (a) Definitions. (1) Pensioner. (2) Public assistance. (i) Title I (Grants to States for Old Age Assistance and Medical Assistance to the Aged). (ii) Title X (Grants to States for Aid to the Blind). (iii) Title XIV (Grants to States for Aid to the Permanently and Totally Disabled). (iv) Part A of title IV (Aid to Families with Dependent Children). (v) Title XVI (Supplemental Security Income for the Aged, Blind and Disabled). (3) Medicaid. (4) Informed election. (b) General. (1) A pensioner may not be required to elect improved pension to receive, or to continue to receive, public assistance; or (2) A pensioner may not be denied (or suffer a reduction in the amount of) public assistance by reason of failure or refusal to elect improved pension. (c) Public assistance deemed to continue. (1) The pensioner was in receipt of pension for the month of December 1978; and (2) The pensioner was in receipt of public assistance (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) prior to June 17, 1980, and for the month of December 1978, and (3) The pensioner's public assistance payments (or a supplementary payment under Pub. L. 93-233, sec. 13(c)) were discontinued because of an increase in income resulting from an election of improved pension. (d) End of the deemed period of entitlement to public assistance. (e) Notice of right to make informed election or disaffirm election previously made. (1) A description of the consequences to the pensioner (and the pensioner's family if applicable) of losing medicaid eligibility because of an increase in income resulting from electing improved pension; and (2) A description of the provisions of paragraph (b) of this section; and (3) In the case of a pensioner who has previously elected improved pension, a form for the purpose of enabling the pensioner to disaffirm the previous election of improved pensions; and (4) The following provisons of Pub. L. 96-272, sec. 310(b)(2)(B): (i) That a pensioner has 90 days from the date the notice is mailed to the pensioner to disaffirm a previous election by completing the disaffirmation form and mailing it to the Department of Veterans Affairs. (ii) That a pensioner who disaffirms a previous election shall receive, beginning the calendar month after the calendar month in which the Department of Veterans Affairs receives the disaffirmation, the amount of pension payable if improved pension had not been elected. (iii) That a pensioner who disaffirms a previous election may again elect improved pension but without a right to disaffirm the subsequent election. (iv) That a pensioner who disaffirms an election of improved pension shall not be indebted to the United States for the period in which the pensioner received improved pension. (Authority: Pub. L. 96-272, sec. 310; 94 Stat. 500) (f) Notification to the Social Security Administration. (1) The name and identifying information of each pensioner who disaffirms his or her election of improved pension. (2) The name and identifying information of each pensioner who fails to disaffirm and election of improved pension within the 90-day period described in paragraph (e)(4)(i) of this section. (3) The name and identifying information of each pensioner who after disaffirming his or her election of improved pension, subsequently reelected improved pension. (Authority: 38 U.S.C. 501) [46 FR 11661, Feb. 10, 1981, as amended at 71 FR 44919, Aug. 8, 2006] § 3.715 Radiation Exposure Compensation Act of 1990, as amended. (a) Compensation. (2) A veteran who is not a “radiation-exposed veteran,” as defined in 38 CFR 3.309(d)(3), is not entitled to VA compensation for disability caused by a disease that is attributable to exposure to radiation for which the veteran has received a payment under RECA. (b) Dependency and indemnity compensation. (c) Offset of RECA payment against VA benefits. (Authority: 38 U.S.C. 1112(c)(4), 1310(c); 42 U.S.C. 2210 note) [71 FR 44919, Aug. 8, 2006] Retirement § 3.750 Entitlement to concurrent receipt of military retired pay and disability compensation. (a) Definition of military retired pay. (b) Payment of both military retired pay and disability compensation or improved pension Compensation. (2) Chapter 61 disability retirees retiring with 20 or more years of service. (i) Any waiver required during the phase-in period under paragraph (c)(1)(ii) of this section; and (ii) If the veteran's disability retired pay exceeds the amount of retired pay the veteran would have received had the veteran retired based on length of service, the veteran must waive that excess amount of disability retired pay in order to receive VA disability compensation. (3) Chapter 61 disability retirees retiring with less than 20 years of service. (4) Improved Pension. (c) Waiver When a waiver is necessary. (ii) Except as provided in paragraph (c)(2) of this section, all veterans who are eligible to receive both military retired pay and disability compensation at the same time under paragraphs (b)(1) or (b)(2) of this section must file a waiver in order to receive the maximum allowable amount of disability compensation during the phase-in period. The phase-in period ends on December 31, 2013. After the phase-in period, veterans retired under 10 U.S.C. chapter 61 who are eligible for concurrent receipt must still file a waiver under the circumstances described in paragraph (b)(2)(ii) of this section. (Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, 5305) (2) When a waiver is not necessary. (3) How to file a waiver of military retired pay. (d) Elections and the right to reelect either benefit. (2) An election filed within 1 year from the date of notification of Department of Veterans Affairs entitlement will be considered as “timely filed” for effective date purposes. See § 3.401(e)(1). If the veteran is incompetent, the 1-year period will begin on the date that notification is sent to the next friend or fiduciary. In initial determinations, elections may be applied retroactively if the claimant was not advised of his or her right of election and its effect. (Authority: 38 U.S.C. 5304(a), 5305) [71 FR 67061, Nov. 20, 2006, as amended at 74 FR 11647, Mar. 19, 2009] § 3.751 Statutory awards; retired service personnel. Retired Regular and Reserve officers and enlisted personnel are not entitled to statutory awards of disability compensation from the Department of Veterans Affairs in addition to their retirement pay. However, under § 3.750(c), eligible persons may waive an amount equal to the basic disability compensation and any statutory award otherwise payable by the Department of Veterans Affairs. [41 FR 53797, Dec. 9, 1976] § 3.752 [Reserved] § 3.753 Public Health Service. Disability compensation may be paid concurrently with retirement pay to an officer of the commissioned corps of the Public Health Service, who was receiving disability compensation on December 31, 1956, as follows: (a) An officer who incurred a disability before July 29, 1945, but retired for nondisability purposes prior to such date. (b) An officer who incurred a disability before July 29, 1945, but retired for nondisability purposes between July 4, 1952, and December 31, 1956. (c) An officer who incurred a disability between July 29, 1945, and July 3, 1952, but retired for nondisability purposes between July 4, 1952, and December 31, 1956. [26 FR 1604, Feb. 24, 1961] § 3.754 Emergency officers' retirement pay. A retired emergency officer of World War I has basic eligibility to retirement pay by the Department of Veterans Affairs under Pub. L. 87-875 (sec. 11(b), Pub. L. 85-857) from date of filing application therefor after October 24, 1962, if the following requirements are met: (a) Emergency officers' retirement pay would have been granted under Pub. L. 506, 70th Congress (Act of May 24, 1928) if application therefor had been filed before May 25, 1929. (b) Such retirement pay would have continued to be payable under section 10 of Pub. L. 2, 73d Congress, or under section 1 of Pub. L. 743, 76th Congress. (c) The monthly rate of retirement pay at any time between May 24, 1928 and May 24, 1929, inclusive, would have been lower than the monthly rate of disability compensation payable to the retired emergency officer. Cross Reference: Emergency officers' retirement pay. See § 3.953(b). [28 FR 72, Jan. 3, 1963] Special Benefits § 3.800 Disability or death due to hospitalization, etc. This section applies to claims received by VA before October 1, 1997. For claims received by VA on or after October 1, 1997, see §§ 3.362 and 3.363. (a) Where disease, injury, death or the aggravation of an existing disease or injury occurs as a result of having submitted to an examination, medical or surgical treatment, hospitalization or the pursuit of a course of vocational rehabilitation under any law administered by the Department of Veterans Affairs and not the result of his (or her) own willful misconduct, disability or death compensation, or dependency and indemnity compensation will be awarded for such disease, injury, aggravation, or death as if such condition were service connected. The commencing date of benefits is subject to the provisions of § 3.400(i). (Authority: 38 U.S.C. 1151) (1) Benefits under paragraph (a) of this section will be in lieu of any benefits the veteran may be entitled to receive under the Federal Employees' Compensation Act inasmuch as concurrent payments are prohibited. (See § 3.708.) (2) Where any person is awarded a judgment on or after December 1, 1962, against the United States in a civil action brought pursuant to 28 U.S.C. 1346(b), or enters into a settlement or compromise on or after December 1, 1962, under 28 U.S.C. 2672 or 2677, by reason of a disability, aggravation or death within the purview of this section, no compensation or dependency and indemnity compensation shall be paid to such person for any month beginning after the date such judgment, settlement, or compromise on account of such disability, aggravation, or death becomes final until the total amount of benefits which would be paid except for this provision equals the total amount included in such judgment, settlement, or compromise. The provisions of this paragraph do not apply, however, to any portion of such compensation or dependency and indemnity compensation payable for any period preceding the end of the month in which such judgment, settlement or compromise becomes final. (Authority: 38 U.S.C. 501) (3) If an administrative award was made or a settlement or compromise became final before December 1, 1962, compensation or dependency and indemnity compensation may not be authorized for any period after such award settlement, or compromise whether before or after December 1, 1962. There is no bar to payment of compensation or dependency and indemnity compensation and no set-off because of a judgment which became final before December 1, 1962, unless specified in the terms of the judgment. (4) Offset of award of benefits under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39. (ii) If the amount described in paragraph (a)(4)(i) of this section is greater than the amount of an award under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39, the excess amount received under the judgment, settlement, or compromise will be offset against benefits otherwise payable under 38 U.S.C. chapter 11. (Authority: 38 U.S.C. 1151(b)(2)) (b)(1) If death occurred prior to January 1, 1957, the benefit payable will be death compensation. See §§ 3.5(b)(2) and 3.702 as to right of election to dependency and indemnity compensation. (2) If death occurs on or after January 1, 1957, the benefit payable will be dependency and indemnity compensation. Cross References: Claims; injury due to hospital treatment, etc. See § 3.154. Effective dates; disability or death due to hospitalization, etc. See § 3.400(i). [26 FR 1604, Feb. 24, 1961, as amended at 27 FR 11892, Dec. 1, 1962; 29 FR 16252, Dec. 4, 1964; 39 FR 34532, Sept. 26, 1974; 53 FR 23237, June 21, 1988; 64 FR 1132, Jan. 8, 1999; 69 FR 46435, Aug. 3, 2004; 71 FR 44919, Aug. 8, 2006; 75 FR 57861, Sept. 23, 2010] § 3.801 Special acts. (a) General. (b) Limitations. (c) Provisions of act. (2) If a special act corrects the nature of separation from military service and does not grant pension or compensation directly, the claimant acquires a status so that he or she may apply for and be allowed benefits. The claimant, then, is placed in the same position he or she would have been if originally released under conditions other than dishonorable. (d) Service. (e) Hospitalization. (Authority: 38 U.S.C. 501(a), 5503) [26 FR 1605, Feb. 24, 1961, as amended at 39 FR 34532, Sept. 26, 1974; 68 FR 34543, June 10, 2003] § 3.802 Medal of Honor. (a) The Secretary of the Department of the Army, the Department of the Navy, the Department of the Air Force, or the Department in which the Coast Guard is operating will determine the eligibility of applicants to be entered on the Medal of Honor Roll and will deliver to the Secretary of the Department of Veterans Affairs a copy of each certificate issued in which the right of the person named in the certificate to the special pension is set forth. The special pension will be authorized on the basis of such certification. A surviving spouse may be eligible for special pension in accordance with paragraph (c) of this section. (Authority: 10 U.S.C. 1134a; 38 U.S.C. 1562) (b) An award of special pension at the monthly rate specified in 38 U.S.C. 1562 will be made beginning as of the date on which the person's name is entered on the Army, Navy, Air Force, and/or Coast Guard Medal of Honor Roll. The special pension will be paid in addition to all other payments under laws of the United States. However, a person awarded more than one Medal of Honor, or a person married to more than one person who has been awarded a Medal of Honor, may not receive more than one special pension. A person who is entitled to special pension under paragraph (a) of this section may elect not to receive special pension by notifying the Secretary of such election in writing. (Authority: 38 U.S.C. 1562) (c) Except as provided in paragraphs (c)(1) and (2) of this section, the Secretary shall pay special pension under this section to the surviving spouse (as defined in § 3.50(b)) of a person whose name has been entered on the Army, Navy, Air Force, and/or Coast Guard Medal of Honor Roll and a copy of whose certificate has been delivered to the Secretary under 10 U.S.C. 1134a(d). (1) No special pension shall be paid to a surviving spouse of a person under this section unless such surviving spouse was married to such person— (i) For one year or more prior to the veteran's death; or (ii) For any period of time if a child was born of the marriage, or was born to them before the marriage. (2) No special pension shall be paid to a surviving spouse of a person under this section if such surviving spouse is receiving dependency and indemnity compensation under 38 U.S.C. 1311 or 1318. (3) A surviving spouse who qualifies for Medal of Honor pension may, by notifying the Secretary in writing, elect to receive instead dependency and indemnity compensation under 38 U.S.C. 1311 or 1318, if entitled to such compensation. See also § 3.702(g). (4) Special pension, including any lump sum payment under paragraph (d) of this section, may only be paid to a surviving spouse for months beginning after January 5, 2021. (Authority: 38 U.S.C. 1562 and note) (d)(1) VA will pay to each veteran or service member who is receiving or who in the future receives Medal of Honor pension a retroactive lump sum special pension payment equal to the total amount of Medal of Honor pension that person would have received during the period beginning the first day of the month after the date of the event for which the veteran earned the Medal of Honor and ending on the last day of the month preceding the month in which pension was awarded under paragraphs (b) and (c) of this section. (2) VA will calculate the veteran's or service member's lump sum payment using the monthly Medal of Honor pension rates in effect from the first day of the month after the date of the event for which the veteran or service member earned the Medal of Honor, to the last day of the month preceding the month in which the individual was initially awarded the Medal of Honor pension under paragraph (b) of this section. VA will not make a retroactive lump sum payment under this paragraph (d)(2) before October 1, 2003. (Authority: 38 U.S.C. 1562(f)) (e) In the case of a posthumous entry on a qualifying Medal of Honor Roll, VA will pay to each surviving spouse who is receiving or who in the future receives Medal of Honor pension under paragraph (c) of this section a retroactive lump sum payment using the monthly Medal of Honor pension rates in effect from the first day of the month after the date of the event for which the veteran or service-member earned the Medal of Honor, to the last day of the month preceding the month in which the surviving spouse was initially awarded the Medal of Honor pension. VA will not make a retroactive posthumous lump sum payment under this paragraph (e) for periods before February 1, 2021. (Authority: 38 U.S.C. 1562(f) and 1562 note) [87 FR 68363, Nov. 15, 2022] § 3.803 Naval pension. (a) Payment of naval pension will be authorized on the basis of a certification by the Secretary of the Navy. (Authority: 10 U.S.C. 6160) (b) Awards of naval pension in effect prior to July 14, 1943, or renewed or continued may be paid concurrently with Department of Veterans Affairs pension or compensation; however, naval pension allowance under 10 U.S.C. 6160 may not exceed one-fourth of the rate of disability pension or compensation otherwise payable, exclusive of additional allowances for dependents or specific disabilities. (c) New awards of naval pension may not be made concurrently with Department of Veterans Affairs pension or compensation. (Authority: 38 U.S.C. 5304(a)) (d) Naval pension remaining unpaid at the date of the veteran's death is not payable by the Department of Veterans Affairs as an accrued benefit. [26 FR 1605, Feb. 24, 1961, as amended at 28 FR 2857, Mar. 22, 1963; 44 FR 22721, Apr. 17, 1979] § 3.804 Special allowance under 38 U.S.C. 1312. (a) The provisions of this section are applicable to the payment of a special allowance by the Department of Veterans Affairs to the surviving dependents of a veteran who served after September 15, 1940, and who died on or after January 1, 1957, as a result of such service and who was not a fully and currently insured individual under title II of the Social Security Act. (b) The special allowance is not payable: (1) Where the veteran's death resulted from Department of Veterans Affairs hospitalization, treatment, examination, or training; (2) Where the veteran's death was due to service rendered with the Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, or was due to service in the Philippine Scouts under section 14, Pub. L. 190, 79th Congress. (c) A claim for dependency and indemnity compensation on a form prescribed will be accepted as a claim for the special allowance where it is determined that this benefit is payable or where a specific inquiry concerning entitlement to the special allowance is received. (d) Payment of this allowance will be authorized on the basis of a certification from the Social Security Administration. Award actions subsequent to the original award, including adjustment and discontinuance, will be made in accordance with new certifications from the Social Security Administration. (e)(1) The special allowance will be payable only if the death occurred: (i) While on active duty, active duty for training, or inactive duty training as a member of a uniformed service (line of duty is not a factor); or (ii) As the result of a disease or injury which was incurred or aggravated in line of duty while on active duty or active duty for training, or an injury which was incurred or aggravated in line of duty while on inactive duty training, as a member of a uniformed service after September 15, 1940, if the veteran was discharged or released from the period of such duty, under conditions other than dishonorable. (2) Where the veteran died after separation from service: (i) Discharge from service must have been under conditions other than dishonorable as outlined in § 3.12. (ii) Line of duty and service connection will be determined as outlined in § 3.1(k) and (m) and the § 3.300 series. [26 FR 1605, Feb. 24, 1961] § 3.805 Loan guaranty for surviving spouses; certification. A certification of loan guaranty benefits may be extended to surviving spouses based on an application filed on or after January 1, 1959, if: (a) The veteran served in the Armed Forces of the United States (Allied Nations are not included) at any time on or after September 16, 1940; and (b) The veteran died in service; or (c) The veteran died after separation from service and such separation was under conditions other than dishonorable provided the veteran's death was the result of injury or disease incurred in or aggravated by service in line of duty rendered on or after September 16, 1940, regardless of the date of entrance into such service (cases where compensation is payable because of death resulting from hospitalization, treatment, examination, or training are not included); and (d) The surviving spouse meets the requirements of the term “surviving spouse” as outlined in § 3.50; and (e) The veteran's surviving spouse is unmarried; and (f) The applicant is not an eligible veteran. Cross References: Wife, widow or spouse. See § 3.50(b). Terminated marital relationships. See § 3.55. [26 FR 1605, Feb. 24, 1961, as amended at 31 FR 4347, Mar. 12, 1966; 37 FR 24662, Nov. 18, 1972; 40 FR 54245, Nov. 21, 1975, 41 FR 49636, Nov. 10, 1976; 44 FR 22721, Apr. 17, 1979; 62 FR 5529, Feb. 6, 1997] § 3.806 Death gratuity; certification. (a) Where a veteran dies on or after January 1, 1957, and during the 120-day period which begins on the day following the date of his or her discharge or release from active duty, active duty for training, or inactive training duty, the Department of Veterans Affairs will certify that fact to the Secretary concerned if the Department of Veterans Affairs determines on the basis of a claim filed with it that: (1) Death resulted from: (i) Disease or injury incurred or aggravated while on such active duty or active duty for training; or (ii) Injury incurred or aggravated while on such inactive duty training; and (2) The deceased person was discharged or released from such service under conditions other than dishonorable. (b) In all cases, other than listed in paragraph (a) of this section, the certification will be furnished at the request of the Secretary concerned. (c) For the purposes of this section, line of duty is not a factor. The standards, criteria, and procedures for determining incurrence or aggravation of a disease or injury under paragraph (a) of this section are those applicable under disability and death compensation laws administered by the Department of Veterans Affairs. (Authority: 38 U.S.C. 1323) [26 FR 1605, Feb. 24, 1961, as amended at 40 FR 54245, Nov. 21, 1975] § 3.807 Dependents' educational assistance; certification. For the purposes of dependents' educational assistance under 38 U.S.C. chapter 35 (see § 21.3020), the child, spouse or surviving spouse of a veteran or serviceperson will have basic eligibility if the following conditions are met: (a) General. (1) Was discharged from service under conditions other than dishonorable, or died in service; and (2) Has a permanent total service-connected disability; or (3) A permanent total service-connected disability was in existence at the date of the veteran's death; or (4) Died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, air, or space service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. (b) Service. (Authority: 38 U.S.C. 3565) (c) Service connection. (d) Relationship (2) “Spouse” means a person whose marriage to the veteran meets the requirements of § 3.50(a) of this part. (3) “Surviving spouse” means a person whose marriage to the veteran meets the requirements of §§ 3.50(b) or 3.52 of this part. (Authority: 38 U.S.C. 1160, 3501) Cross References: Discontinuance. See § 3.503(a)(8) Election; concurrent benefits. See § 3.707 Nonduplication. See § 21.3023 of this chapter. [29 FR 9537, July 14, 1964, as amended at 31 FR 4347, Mar. 12, 1966; 34 FR 840, Jan. 18, 1969; 38 FR 8658, Apr. 5, 1973; 40 FR 54245, Nov. 21, 1975; 53 FR 46607, Nov. 18, 1988; 59 FR 62585, Dec. 6, 1994; 69 FR 46435, Aug. 3, 2004; 73 FR 1076, Jan. 7, 2008; 87 FR 26126, May 3, 2022] § 3.808 Automobiles or other conveyances and adaptive equipment; certification. (a) Entitlement. (1) A veteran who is entitled to compensation under chapter 11 of title 38, United States Code, for a disability described in paragraph (b) of this section; or (2) A member of the Armed Forces serving on active duty who has a disability described in paragraph (b) of this section that is the result of an injury or disability incurred or disease contracted in or aggravated by active military, naval, air, or space service. (b) Disability. (1) Loss or permanent loss of use of one or both feet; (2) Loss or permanent loss of use of one or both hands; (3) Permanent impairment of vision of both eyes: Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20° in the better eye. (4) Severe burn injury: Deep partial thickness or full thickness burns resulting in scar formation that cause contractures and limit motion of one or more extremities or the trunk and preclude effective operation of an automobile. (5) Amyotrophic lateral sclerosis. (6) For adaptive equipment eligibility only, ankylosis of one or both knees or one or both hips. (Authority: 38 U.S.C. 3901, 3902) (c) Claim for conveyance and certification for adaptive equipment. (d) Additional eligibility criteria for adaptive equipment. (e) Definition. adaptive equipment, (1) With regard to automobiles and similar vehicles the term includes a basic automatic transmission as to a claimant who has lost or lost the use of a limb. In addition, the term includes, but is not limited to, power steering, power brakes, power window lifts and power seats. The term also includes air-conditioning equipment when such equipment is necessary to the health and safety of the veteran and to the safety of others, and special equipment necessary to assist the eligible person into or out of the automobile or other conveyance, regardless of whether the automobile or other conveyance is to be operated by the eligible person or is to be operated for such person by another person; and any modification of the interior space of the automobile or other conveyance if needed because of the physical condition of such person in order for such person to enter or operate the vehicle. (2) With regard to automobiles and similar vehicles the term includes such items of equipment as the Chief Medical Director may, by directive, specify as ordinarily necessary for any of the classes of losses specified in paragraph (b) of this section and for any combination of such losses. Such specifications of equipment may include a limit on the financial assistance to be provided based on judgment and experience. (3) The term also includes other equipment which the Chief Medical Director or designee may deem necessary in an individual case. (Authority: 38 U.S.C. 501(a), 1151(c)(2), 3902)) [36 FR 7588, Apr. 22, 1971, as amended at 38 FR 14370, June 1, 1973; 40 FR 37037, Aug. 25, 1975; 43 FR 4423, Feb. 2, 1978; 47 FR 24552, June 7, 1982; 53 FR 46607, Nov. 18, 1988; 66 FR 44528, Aug. 24, 2001; 71 FR 44919, Aug. 8, 2006; 78 FR 57487, Sept. 19, 2013; 80 FR 10003, Feb. 25, 2015; 87 FR 26126, May 3, 2022] § 3.809 Specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i). In order for a certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i) or 2101A(a) to be extended to a veteran or a member of the Armed Forces serving on active duty, the following requirements must be met: (a) General. (b) Disability. (1) A permanent and total disability due to the loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (2) A permanent disability due to blindness in both eyes, having central visual acuity of 20/200 or less in the better eye with the use of a standard correcting lens. For the purposes of this paragraph (b)(2), an eye with a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees shall be considered as having a central visual acuity of 20/200 or less. (3) A permanent and total disability due to the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (4) A permanent and total disability due to the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. (5) A permanent and total disability due to the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow. (6) A permanent and total disability due to full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. (c) Preclude locomotion. (d) Amyotrophic lateral sclerosis. (Authority: 38 U.S.C. 501(a), 1151(c)(1), 2101, 2101A) Cross Reference: [78 FR 72576, Dec. 3, 2013, as amended at 86 FR 56215, Oct. 8, 2021; 87 FR 26126, May 3, 2022] § 3.809a Special home adaptation grants under 38 U.S.C. 2101(b). A certificate of eligibility for assistance in acquiring necessary special home adaptations, or, on or after October 28, 1986, for assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. 2101(b) or 2101A(a) may be issued to a veteran who served after April 20, 1898, or to a member of the Armed Forces serving on active duty who is eligible for the benefit under this section on or after December 16, 2003, if the following requirements are met: (a) The member of the Armed Forces serving on active duty or veteran is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under § 3.809 nor had the member of the Armed Forces serving on active duty or veteran previously received assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a). A member of the Armed Forces serving on active duty or veteran who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under § 3.809 may be issued a certificate of eligibility under § 3.809. (b) A member of the Armed Forces serving on active duty must have a disability that was incurred or aggravated in line of duty in active military, naval, air, or space service and meets the requirements described in paragraph (c) of this section. A veteran must be entitled to compensation under chapter 11 of title 38, United States Code, for a disability that meets the requirements described in paragraph (c) of this section. (c) VA has rated the disability as permanently and totally disabling and it: (1) Includes the anatomical loss or loss of use of both hands; (2) Is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) Is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or (4) Is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). (Authority: 38 U.S.C. 1151(c)(1), 2101, 2101A, 2104) Cross Reference: Assistance to certain disabled veterans in acquiring specially adapted housing. See [46 FR 47543, Sept. 29, 1981, as amended at 53 FR 23237, June 21, 1988; 75 FR 57861, Sept. 23, 2010; 79 FR 54609, Sept. 12, 2014; 86 FR 56216, Oct. 8, 2021; 87 FR 26126, May 3, 2022] § 3.810 Clothing allowance. (a) Except as provided in paragraph (d) of this section, a veteran who has a service-connected disability, or a disability compensable under 38 U.S.C. 1151 as if it were service connected, is entitled, upon application therefore, to an annual clothing allowance, which is payable in a lump sum, as specified in this paragraph. (1) One clothing allowance. (i) A VA examination or a hospital or examination report from a facility specified in § 3.326(b) establishes that the veteran, because of a service-connected disability or disabilities due to loss or loss of use of a hand or foot compensable at a rate specified in § 3.350(a), (b), (c), (d), or (f), wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing; or (ii) The Under Secretary for Health or a designee certifies that— (A) A veteran, because of a service-connected disability or disabilities, wears or uses one qualifying prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) which tends to wear or tear clothing; or (B) A veteran uses medication prescribed by a physician for one skin condition, which is due to a service-connected disability, that causes irreparable damage to the veteran's outergarments. (2) More than one clothing allowance; multiple types of garments affected. (i) Satisfies the requirements of paragraph (a)(1) of this section; and (ii) Affects a distinct type of article of clothing or outergarment. (3) Two clothing allowances; single type of garment affected. (i) Each satisfy the requirements of paragraph (a)(1) of this section; and (ii) Together tend to wear or tear a single type of article of clothing or irreparably damage a type of outergarment at an increased rate of damage to the clothing or outergarment due to a second appliance or medication. (b) Effective August 1, 1972, the initial lump sum clothing allowance is due and payable for veterans meeting the eligibility requirements of paragraph (a) of this section as of that date. Subsequent annual payments for those meeting the eligibility requirements of paragraphs (a) of this section will become due on the anniversary date thereafter, both as to initial claims and recurring payments under previously established entitlement. (c)(1) Except as provided in paragraph (c)(2) of this section, the application for clothing allowance must be filed within 1 year of the anniversary date (August 1) for which entitlement is initially established, otherwise, the application will be acceptable only to effect payment of the clothing allowance becoming due on any succeeding anniversary date for which entitlement is established, provided the application is filed within 1 year of such date. The 1-year period for filing application will include the anniversary date and terminate on July 31 of the following year. (2) Where the initial determination of service connection for the qualifying disability is made subsequent to an anniversary date for which entitlement is established, the application for clothing allowance may be filed within 1 year from the date of notification to the veteran of such determination. (Authority: 38 U.S.C. 1162) (d) If a veteran is incarcerated in a Federal, State, or local penal institution for a period of more than 60 days and is furnished clothing without charge by the institution, VA shall reduce the amount of the annual clothing allowance by 1/365th of the amount otherwise payable for each day the veteran was incarcerated during the 12-month period preceding the anniversary date for which entitlement is established. No reduction shall be made for the first 60 days of incarceration. (Authority: 38 U.S.C. 5313A) [37 FR 19134, Sept. 19, 1972, as amended at 39 FR 2362, Jan. 21, 1974; 49 FR 28242, July 11, 1984; 56 FR 5756, Feb. 13, 1991; 62 FR 35422, July 1, 1997; 76 FR 70885, Nov. 16, 2011; 77 FR 34218, June 11, 2012] § 3.811 Minimum income annuity and gratuitous annuity. (a) Eligibility for minimum income annuity. (1) Whom the Department of Defense or the Department of Transportation has determined meets the eligibility criteria of section 4(a) of Pub. L. 92-425 as amended other than section 4(a)(1) and (2); and (2) Who is eligible for pension under subchapter III of chapter 15 of title 38, United States Code, or section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978; and (3) Whose annual income, as determined in establishing pension eligibility, is less than the maximum annual rate of pension in effect under 38 U.S.C. 1541(b). (b) Computation of the minimum income annuity payment Annual income. (2) VA will determine the minimum income annuity payment for beneficiaries entitled to improved pension by subtracting the annual income for minimum income annuity purposes from the maximum annual pension rate under 38 U.S.C. 1541(b). (3) VA will determine the minimum income annuity payment for beneficiaries receiving old law and section 306 pensions by reducing the maximum annual pension rate under 38 U.S.C. 1541(b) by the amount of the Retired Servicemen's Family Protection Plan benefit, if any, that the beneficiary receives and subtracting from that amount the annual income for minimum income annuity purposes. (4) VA will recompute the monthly minimum income annuity payment whenever there is a change to the maximum annual rate of pension in effect under 38 U.S.C. 1541(b), and whenever there is a change in the beneficiary's income. (c) An individual otherwise eligible for pension under subchapter III of chapter 15 of title 38, United States Code, or section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978 shall be considered eligible for pension for purposes of determining eligibility for the minimum income annuity even though as a result of adding the amount of the minimum income annuity authorized under Public Law 92-425 as amended to any other countable income, no amount of pension is due. (d) If the Department of Defense or the Department of Transportation determines that a minimum income annuitant also is entitled to the gratuitous annuity authorized by Pub. L. 100-456 as amended, which is payable to certain surviving spouses of servicemembers who died before November 1, 1953, and were entitled to retired or retainer pay on the date of death, VA will combine the payment of the gratuitous annuity with the minimum income annuity payment. (e) Termination. (Authority: Sec. 4, Pub. L. 92-425, 86 Stat. 706, 712, as amended (10 U.S.C. 1448 note)) [63 FR 412, Jan. 6, 1998, as amended at 63 FR 62943, Nov. 10, 1998] § 3.812 Special allowance payable under section 156 of Pub. L. 97-377. The provisions of this section apply to the payment of a special allowance to certain surviving spouses and children of individuals who died on active duty prior to August 13, 1981, or who died as a result of a service-connected disability which was incurred or aggravated prior to August 13, 1981. This special allowance is a replacement for certain social security benefits which were either reduced or terminated by provisions of the Omnibus Budget Reconciliation Act of 1981. (a) Eligibility requirements. (2) Once a favorable determination has been made under paragraph (a)(1) of this section, determinations as to the age, relationship and school attendance requirements contained in paragraphs (a)(1) and (b)(1) of section 156 of Pub. L. 97-377 will be made. In making these eligibility determinations VA shall apply the provisions of the Social Security Act, and any regulations promulgated pursuant thereto, as in effect during the claimant's period of eligibility. Unless otherwise provided in this section, when issues are raised concerning eligibility or entitlement to this special allowance which cannot be appropriately resolved under the provisions of the Social Security Act, or the regulations promulgated pursuant thereto, the provisions of title 38, Code of Federal Regulations, are for application. (b) Computation of payment rate Basic entitlement rate. (2) Original or reopened awards to surviving spouses. (3) Original and reopened awards to children. (4) Subsequent legislative increases in rates. (5) Amendment of awards. (6) Rounding of monthly rates. (c) Claimants not entitled to this special allowance. (1) Claimants eligible for death benefits under 38 U.S.C. 1151. The deaths in such cases are not service-connected. (2) Claimants eligible for death benefits under 38 U.S.C. 1318. The deaths in such cases are not service connected. (3) Claimants whose claims are based on an individual's service in: (i) The Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, including recognized guerrilla forces (see 38 U.S.C. 107). (ii) The Philippine Scouts under section 14, Pub. L. 190, 79th Congress (see 38 U.S.C. 107). (iii) The commissioned corps of the Public Health Service (specifically excluded by section 156 of Pub. L. 97-377), or (iv) The National Oceanic and Atmospheric Administration (specifically excluded by section 156 of Pub. L. 97-377). (d) Appellate jurisdiction. (e) Claims. (f) Retroactivity and effective dates. (Authority: Sec. 156, Pub. L. 97-377, 96 Stat. 1830, 1920 (1982)) [49 FR 21709, May 23, 1984, as amended at 54 FR 26030, June 21, 1989; 60 FR 20643, Apr. 27, 1995; 79 FR 57697, Sept. 25, 2014] § 3.813 Interim benefits for disability or death due to chloracne or porphyria cutanea tarda. (a) Disability benefits. (b) Death benefits. (c) Exceptions. (d) Similarity to service-connected benefits. (e) Effective dates. (Authority: Pub. L. 98-542) [50 FR 34460, Aug. 26, 1985] § 3.814 Monetary allowance under 38 U.S.C. chapter 18 for an individual suffering from spina bifida whose biological father or mother is or was a Vietnam veteran or a veteran with covered service in Korea. (a) Monthly monetary allowance. (b) [Reserved] (c) Definitions Vietnam veteran. Service in the Republic of Vietnam (2) Covered service in Korea. (3) Individual. (4) Spina bifida. (d) Disability evaluations. (i) Level I. (ii) Level II. (iii) Level III. (2) If an individual who would otherwise be paid at Level I or II has one or more disabilities, such as blindness, uncontrolled seizures, or renal failure that result either from spina bifida, or from treatment procedures for spina bifida, the Director of the Compensation Service may increase the monthly payment to the level that, in his or her judgment, best represents the extent to which the disabilities resulting from spina bifida limit the individual's ability to engage in ordinary day-to-day activities, including activities outside the home. A Level II or Level III payment will be awarded depending on whether the effects of a disability are of equivalent severity to the effects specified under Level II or Level III. (3) VA may accept statements from private physicians, or examination reports from government or private institutions, for the purpose of rating spina bifida claims without further examination, provided the statements or reports are adequate for assessing the level of disability due to spina bifida under the provisions of paragraph (d)(1) of this section. In the absence of adequate medical information, VA will schedule an examination for the purpose of assessing the level of disability. (4) VA will pay an individual eligible for a monetary allowance due to spina bifida at Level I unless or until it receives medical evidence supporting a higher payment. When required to reassess the level of disability under paragraph (d)(5) or (d)(6) of this section, VA will pay an individual eligible for this monetary allowance at Level I in the absence of evidence adequate to support a higher level of disability or if the individual fails to report, without good cause, for a scheduled examination. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. (5) VA will pay individuals under the age of one year at Level I unless a pediatric neurologist or a pediatric neurosurgeon certifies that, in his or her medical judgment, there is a neurological deficit that will prevent the individual from ambulating, grasping a pen, feeding himself or herself, performing self care, or from achieving urinary or fecal continence. If any of those deficits are present, VA will pay the individual at Level III. In either case, VA will reassess the level of disability when the individual reaches the age of one year. (6) VA will reassess the level of payment whenever it receives medical evidence indicating that a change is warranted. For individuals between the ages of one and twenty-one, however, it must reassess the level of payment at least every five years. (e) Effective dates. (1) VA will increase benefits as of the earliest date the evidence establishes that the level of severity increased, but only if the beneficiary applies for an increase within one year of that date. (2) If a claimant reopens a previously disallowed claim based on corrected military records, VA will award the benefit from the latest of the following dates: the date the veteran or beneficiary applied for a correction of the military records; the date the disallowed claim was filed; or, the date one year before the date of receipt of the reopened claim. (f) Reductions and discontinuances. (1) If benefits were paid erroneously because of beneficiary error, VA will reduce or discontinue benefits as of the effective date of the erroneous award. (2) If benefits were paid erroneously because of administrative error, VA will reduce or discontinue benefits as of the date of last payment. (Authority: 38 U.S.C. 501, 1805, 1811, 1812, 1821, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112) Cross Reference: 38 CFR 3.307(a)(6)(iv). [62 FR 51279, Sept. 30, 1997, as amended at 65 FR 35282, June 2, 2000; 66 FR 13436, Mar. 6, 2001; 67 FR 49587, July 31, 2002; 76 FR 4249, Jan. 25, 2011; 79 FR 2100, Jan. 13, 2014; 84 FR 171, Jan. 18, 2019] § 3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual with disability from covered birth defects whose biological mother is or was a Vietnam veteran; identification of covered birth defects. (a) Monthly monetary allowance General. (2) Affirmative evidence of cause other than mother's service during Vietnam era. (3) Nonduplication; spina bifida. (b) No effect on other VA benefits. (c) Definitions Vietnam veteran. Vietnam veteran (2) Individual. (3) Covered birth defect. covered birth defect covered birth defect (i) Familial disorder; (ii) Birth-related injury; or (iii) Fetal or neonatal infirmity with well-established causes. (d) Identification of covered birth defects. (1) Covered birth defects include, but are not limited to, the following (however, if a birth defect is determined to be familial in a particular family, it will not be a covered birth defect): (i) Achondroplasia; (ii) Cleft lip and cleft palate; (iii) Congenital heart disease; (iv) Congenital talipes equinovarus (clubfoot); (v) Esophageal and intestinal atresia; (vi) Hallerman-Streiff syndrome; (vii) Hip dysplasia; (viii) Hirschprung's disease (congenital megacolon); (ix) Hydrocephalus due to aqueductal stenosis; (x) Hypospadias; (xi) Imperforate anus; (xii) Neural tube defects (including spina bifida, encephalocele, and anencephaly); (xiii) Poland syndrome; (xiv) Pyloric stenosis; (xv) Syndactyly (fused digits); (xvi) Tracheoesophageal fistula; (xvii) Undescended testicle; and (xviii) Williams syndrome. (2) Birth defects that are familial disorders, including hereditary genetic conditions, are not covered birth defects. Familial disorders include, but are not limited to, the following, unless the birth defect is not familial in a particular family: (i) Albinism; (ii) Alpha-antitrypsin deficiency; (iii) Crouzon syndrome; (iv) Cystic fibrosis; (v) Duchenne's muscular dystrophy; (vi) Galactosemia; (vii) Hemophilia; (viii) Huntington's disease; (ix) Hurler syndrome; (x) Kartagener's syndrome (Primary Ciliary Dyskinesia); (xi) Marfan syndrome; (xii) Neurofibromatosis; (xiii) Osteogenesis imperfecta; (xiv) Pectus excavatum; (xv) Phenylketonuria; (xvi) Sickle cell disease; (xvii) Tay-Sachs disease; (xviii) Thalassemia; and (xix) Wilson's disease. (3) Conditions that are congenital malignant neoplasms are not covered birth defects. These include, but are not limited to, the following: (i) Medulloblastoma; (ii) Neuroblastoma; (iii) Retinoblastoma; (iv) Teratoma; and (v) Wilm's tumor. (4) Conditions that are chromosomal disorders are not covered birth defects. These include, but are not limited to, the following: (i) Down syndrome and other Trisomies; (ii) Fragile X syndrome; (iii) Klinefelter's syndrome; and (iv) Turner's syndrome. (5) Conditions that are due to birth-related injury are not covered birth defects. These include, but are not limited to, the following: (i) Brain damage due to anoxia during or around time of birth; (ii) Cerebral palsy due to birth trauma, (iii) Facial nerve palsy or other peripheral nerve injury; (iv) Fractured clavicle; and (v) Horner's syndrome due to forceful manipulation during birth. (6) Conditions that are due to a fetal or neonatal infirmity with well-established causes or that are miscellaneous pediatric conditions are not covered birth defects. These include, but are not limited to, the following: (i) Asthma and other allergies; (ii) Effects of maternal infection during pregnancy, including but not limited to, maternal rubella, toxoplasmosis, or syphilis; (iii) Fetal alcohol syndrome or fetal effects of maternal drug use; (iv) Hyaline membrane disease; (v) Maternal-infant blood incompatibility; (vi) Neonatal infections; (vii) Neonatal jaundice; (viii) Post-infancy deafness/hearing impairment (onset after the age of one year); (ix) Prematurity; and (x) Refractive disorders of the eye. (7) Conditions that are developmental disorders are not covered birth defects. These include, but are not limited to, the following: (i) Attention deficit disorder; (ii) Autism; (iii) Epilepsy diagnosed after infancy (after the age of one year); (iv) Learning disorders; and (v) Mental retardation (unless part of a syndrome that is a covered birth defect). (8) Conditions that do not result in permanent physical or mental disability are not covered birth defects. These include, but are not limited to: (i) Conditions rendered non-disabling through treatment; (ii) Congenital heart problems surgically corrected or resolved without disabling residuals; (iii) Heart murmurs unassociated with a diagnosed cardiac abnormality; (iv) Hemangiomas that have resolved with or without treatment; and (v) Scars (other than of the head, face, or neck) as the only residual of corrective surgery for birth defects. (e) Disability evaluations. (1) Levels of disability. (i) Level 0. (ii) Level I. (A) The individual has residual physical or mental effects that only occasionally or intermittently limit or prevent some daily activities; or (B) The individual has disfigurement or scarring of the head, face, or neck without gross distortion or gross asymmetry of any facial feature (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips). (iii) Level II. (A) The individual has residual physical or mental effects that frequently or constantly limit or prevent some daily activities, but the individual is able to work or attend school, carry out most household chores, travel, and provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene, and communication, behavior, social interaction, and intellectual functioning are appropriate for age; or (B) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of one facial feature or one paired set of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips). (iv) Level III. (A) The individual has residual physical or mental effects that frequently or constantly limit or prevent most daily activities, but the individual is able to provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene; (B) The individual is unable to work or attend school, travel, or carry out household chores, or does so intermittently and with difficulty; (C) The individual's communication, behavior, social interaction, and intellectual functioning are not entirely appropriate for age; or (D) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of two facial features or two paired sets of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips). (v) Level IV. (A) The individual has residual physical or mental effects that prevent age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene; (B) The individual's communication, behavior, social interaction, and intellectual functioning are grossly inappropriate for age; or (C) The individual has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of three facial features or three paired sets of facial features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips). (2) Assessing limitation of daily activities. (i) Mobility (ability to stand and walk, including balance and coordination); (ii) Manual dexterity; (iii) Stamina; (iv) Speech; (v) Hearing; (vi) Vision (other than correctable refraction errors); (vii) Memory; (viii) Ability to concentrate; (ix) Appropriateness of behavior; and (x) Urinary and fecal continence. (f) Information for determining whether individuals have covered birth defects and rating disability levels. (2) Except in accordance with paragraph (a)(3) of this section, VA will not pay a monthly monetary allowance unless or until VA is able to obtain medical evidence adequate to determine that an individual has a covered birth defect and adequate to assess the level of disability due to covered birth defects. (g) Redeterminations. (h) Referrals. (i) Effective dates. (1) VA will increase benefits as of the earliest date the evidence establishes that the level of severity increased, but only if the beneficiary applies for an increase within one year of that date. (2) If a claimant reopens a previously disallowed claim based on corrected military records, VA will award the benefit from the latest of the following dates: the date the veteran or beneficiary applied for a correction of the military records; the date the disallowed claim was filed; or, the date one year before the date of receipt of the reopened claim. (j) Reductions and discontinuances. (1) If benefits were paid erroneously because of beneficiary error, VA will reduce or discontinue benefits as of the effective date of the erroneous award. (2) If benefits were paid erroneously because of administrative error, VA will reduce or discontinue benefits as of the date of last payment. (Authority: 38 U.S.C. 501, 1811, 1812, 1813, 1814, 1815, 1816, 1831, 1832, 1833, 1834, 5101, 5110, 5111, 5112) [67 FR 49588, July 31, 2002, as amended at 76 FR 4249, Jan. 25, 2011; 79 FR 2100, Jan. 13, 2014; 84 FR 171, Jan. 18, 2019] § 3.816 Awards under the Nehmer Court Orders for disability or death caused by a condition presumptively associated with herbicide exposure. (a) Purpose. Nehmer United States Department of Veterans Affairs, (b) Definitions. (1) Nehmer class member (i) A Vietnam veteran who has a covered herbicide disease; or (ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease. (2) Covered herbicide disease (c) Effective date of disability compensation. Nehmer (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) If the class member's claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. (3) If the class member's claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member's separation from service, the effective date of the award shall be the day following the date of the class member's separation from active service. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. (d) Effective date of dependency and indemnity compensation (DIC). (1) If VA denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which such prior denial was based or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section. (2) If the class member's claim for DIC for the death was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered herbicide disease that caused the death, the effective date of the award will be the later of the date such claim was received by VA or the date the death occurred, except as otherwise provided in paragraph (d)(3) of this section. In accordance with § 3.152(b)(1), a claim by a surviving spouse or child for death pension will be considered a claim for DIC. In all other cases, a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC. (3) If the class member's claim referred to in paragraph (d)(1) or (d)(2) of this section was received within one year from the date of the veteran's death, the effective date of the award shall be the first day of the month in which the death occurred. (4) If the requirements of paragraph (d)(1) or (d)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. (e) Effect of other provisions affecting retroactive entitlement General. Nehmer (2) Claims Based on Service in the Republic of Vietnam Prior to August 5, 1964. (Authority: Public Law 104-275, sec. 505) (f) Payment of Benefits to Survivors or Estates of Deceased Beneficiaries General. Nehmer (i) The class member's spouse, regardless of current marital status. Note to paragraph ( f i For purposes of this paragraph, a spouse is the person who was legally married to the class member at the time of the class member's death. (ii) The class member's child(ren), regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division). Note to paragraph ( f ii For purposes of this paragraph, the term “child” includes natural and adopted children, and also includes any stepchildren who were members of the class member's household at the time of the class member's death. (iii) The class member's parent(s), regardless of dependency (if both parents are alive, payment will be made in equal shares, accompanied by an explanation of the division). Note to paragraph ( f iii For purposes of this paragraph, the term “parent” includes natural and adoptive parents, but in the event of successive parents, the persons who last stood as parents in relation to the class member will be considered the parents. (iv) The class member's estate. (2) Inapplicability of certain accrued benefit requirements. Nehmer (3) Identifying payees. (4) Bar to accrued benefit claims. (g) Awards covered by this section. (Authority: 38 U.S.C. 501) [68 FR 50970, Aug. 25, 2003, as amended at 73 FR 61736, Oct. 17, 2008; 78 FR 54766, Sept. 6, 2013; 86 FR 68410, Dec. 2, 2021] Forfeiture § 3.900 General. (a) Forfeiture of benefits based on one period of service does not affect entitlement to benefits based on a period of service beginning after the offense causing the prior forfeiture. (b)(1) Except as provided in paragraph (b)(2) of this section, any offense committed prior to January 1, 1959, may cause a forfeiture and any forfeiture in effect prior to January 1, 1959, will continue to be a bar on and after January 1, 1959. (Authority: Section 3, Pub. L. 85-857) (2) Effective September 2, 1959, forfeiture of benefits may not be declared except under the circumstances set forth in § 3.901(d), § 3.902(d), or § 3.903. Forfeitures declared before September 2, 1959, will continue to be a bar on and after that date. (Authority: 38 U.S.C. 6103(d) and 6105) (c) Pension or compensation payments are not subject to forfeiture because of violation of hospital rules. (d) When the person primarily entitled has forfeited his or her rights by reason of fraud or a treasonable act determination as to the rights of any dependents of record to benefits under § 3.901(c) or § 3.902(c) may be made upon receipt of an application. (Authority: 38 U.S.C. 6103(b) and 38 U.S.C. 6104(b)) [26 FR 1607, Feb. 24, 1961, as amended at 27 FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, 1988] § 3.901 Fraud. (a) Definition. (b) Effect on claim. (c) Forfeiture before September 2, 1959. (Authority: 38 U.S.C. 6103) (1) Service-connected death benefit payable. (2) Amount of compensation payable but for the forfeiture. No benefits are payable to any person who participated in the fraud causing the forfeiture. (d) Forfeiture after September 1, 1959. (1) Where the person was not residing or domiciled in a State as defined in § 3.1(i) at the time of commission of the fraudulent act; or (2) Where the person ceased to be a resident of or domiciled in a State as defined in § 3.1(i) before expiration of the period during which criminal prosecution could be instituted; or (3) The fraudulent act was committed in the Philippine Islands. Where the veteran's rights have been forfeited, no part of his or her benefit may be paid to his or her dependents. (Authority: 38 U.S.C. 6103) (e) Remission of forfeitures imposed prior to September 2, 1959. (Authority: 38 U.S.C. 6103) [27 FR 8590, Aug. 28, 1962, as amended at 37 FR 19134, Sept. 19, 1972; 53 FR 17934, May 19, 1988] § 3.902 Treasonable acts. (a) Definition. (b) Effect on claim. (c) Forfeiture before September 2, 1959. (Authority: 38 U.S.C. 6104(c)) (1) Compensation. (i) Service-connected death benefit payable. (ii) Amount of compensation payable but for the forfeiture. No benefits are payable to any person participating in the treasonable act causing the forfeiture. (2) Pension. (i) Nonservice-connected death benefit payable. (ii) Amount of pension being paid the veteran at the time of forfeiture. No benefits are payable to any person who participated in the treasonable act causing the forfeiture. (d) Forfeiture after September 1, 1959. (1) Where the person was not residing or domiciled in a State as defined in § 3.1(i) at the time of commission of the act; or (2) Where the person ceased to be a resident of or domiciled in a State as defined in § 3.1(i) before expiration of the period during which criminal prosecution could be instituted; or (3) The treasonable act was committed in the Philippine Islands. No part of the benefits forfeited by the person primarily entitled shall be paid to any dependent. (Authority: 38 U.S.C. 6104) (e) Children. [27 FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, 1988] § 3.903 Subversive activities. (a) Definition. (2) In title 18 U.S.C., sections 175, 229, 831, 1091, 2332a, and 2332b, for claims filed on or after December 17, 2003. (3) In the Uniform Code of Military Justice, Articles 94, 104 and 106 (10 U.S.C. 894, 904, and 906); (4) In the following sections of the Atomic Energy Act of 1954: Sections 222 through 226 (42 U.S.C. 2272-2276); and (5) In section 4 of the Internal Security Act of 1950 (50 U.S.C. 783). (b) Effect on claim. (2) The Attorney General will notify the Department of Veterans Affairs in each case in which a person is indicted or convicted of an offense listed in paragraphs (a)(1), (3), and (4) of this section. The Secretary of Defense or the Secretary of the Treasury, as may be appropriate, will notify the Department of Veterans Affairs in each case in which a person is convicted of an offense listed in paragraph (a)(2) of this section. (c) Presidential pardon. (Authority: 38 U.S.C. 6105) [27 FR 8591, Aug. 28, 1962, as amended at 38 FR 4511, Feb. 15, 1973; 38 FR 30106, Nov. 1, 1973; 53 FR 17934, May 19, 1988; 71 FR 44919, Aug. 8, 2006; 87 FR 26126, May 3, 2022] § 3.904 Effect of forfeiture after veteran's death. (a) Fraud. (Authority: 38 U.S.C. 6103(c)) (b) Treasonable acts. (Authority: 38 U.S.C. 6104(c)) (c) Subversive activities. (Authority: 38 U.S.C. 6105(a)) [27 FR 8591, Aug. 28, 1962, as amended at 38 FR 30106, Nov. 1, 1973; 39 FR 13970, Apr. 19, 1974; 53 FR 16924, May 19, 1988] § 3.905 Declaration of forfeiture or remission of forfeiture. (a) Jurisdiction. (b) Fraud or treasonable acts. (1) The specific charges against the person; (2) A detailed statement of the evidence supporting the charges, subject to regulatory limitations on disclosure of information; (3) Citation and discussion of the applicable statute; (4) The right to submit a statement or evidence within 60 days, either to rebut the charges or to explain the person's position; (5) The right to a hearing within 60 days, with representation by counsel of the person's own choosing, that fees for the representation are limited in accordance with 38 U.S.C. 5904(c) and that no expenses incurred by a claimant, counsel or witness will be paid by VA. (c) Subversive activities. (d) Finality of decisions. (e) Remission of forfeiture. Cross References: Effective dates; forfeiture. See § 3.400(m). Reductions and discontinuances; fraud. See § 3.500(k). Reductions and discontinuances; treasonable acts or subversive activities. See § 3.500(s). Adjustments and resumptions. See § 3.669. Burial benefits. See § 3.1609. [28 FR 2234, Mar. 7, 1963, as amended at 29 FR 7547, June 12, 1964; 37 FR 19134, Sept. 19, 1972; 39 FR 13970, Apr. 19, 1974; 53 FR 17934, May 19, 1988; 58 FR 32443, June 10, 1993; 79 FR 2100, Jan. 13, 2014] Protection § 3.950 Helpless children; Spanish-American and prior wars. Marriage is not a bar to the payment of pension or compensation to a helpless child under an award approved prior to April 1, 1944. The presumption, arising from the fact of marriage, that helplessness has ceased may be overcome by positive proof of continuing helplessness. As to awards approved on or after April 1, 1944, pension or compensation may not be paid to a helpless child who has married. [26 FR 1608, Feb. 24, 1961] § 3.951 Preservation of disability ratings. (a) A readjustment to the Schedule for Rating Disabilities shall not be grounds for reduction of a disability rating in effect on the date of the readjustment unless medical evidence establishes that the disability to be evaluated has actually improved. (Authority: 38 U.S.C. 1155) (b) A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud. The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation. (Authority: 38 U.S.C. 110) [34 FR 11970, July 16, 1969, as amended at 57 FR 10426, Mar. 26, 1992] § 3.952 Protected ratings. Ratings under the Schedule of Disability Ratings, 1925, which were the basis of compensation on April 1, 1946, are subject to modification only when a change in physical or mental condition would have required a reduction under the 1925 schedule, or an increased evaluation has been assigned under the Schedule for Rating Disabilities, 1945 (looseleaf edition), after which time all evaluations will be under the 1945 schedule (loose-leaf edition) only. Such increased evaluations must be of an other than temporary nature (due to hospitalization, surgery, etc.). When a temporary evaluation is involved, the 1925 schedule evaluation will be restored after the period of increase has elapsed unless the permanent residuals would have required reduction under that schedule, or unless an increased evaluation would be assignable under a 1945 schedule (looseleaf edition) rating. In any instance where the changed condition represents an increased degree of disability under either rating schedule but the evaluation provided by the 1945 schedule (looseleaf edition) is less than the evaluation in effect under the 1925 schedule on April 1, 1946, the 1925 schedule evaluation and award are protected. [26 FR 12766, Dec. 30, 1961] § 3.953 Pub. L. 85-56 and Pub. L. 85-857. (a) In receipt of or entitled to receive benefits on December 31, 1958. (Authority: Section 10, Pub. L. 85-857) (b) Emergency officers' retirement pay. (Authority: Section 11, Pub. L. 85-857) (c) Service connection established under prior laws. [26 FR 1608, Feb. 24, 1961, as amended at 26 FR 8561, Sept. 13, 1961; 26 FR 12766, Dec. 30, 1961] §§ 3.955-3.956 [Reserved] § 3.957 Service connection. Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation. (Authority: 38 U.S.C. 1159) [33 FR 15286, Oct. 15, 1968] § 3.958 Federal employees' compensation cases. Any award approved prior to September 13, 1960, authorizing Department of Veterans Affairs benefits concurrently with an award of benefits under the Federal Employees' Compensation Act based on a finding that the same disability or death was due to civilian employment is not affected by the prohibition against concurrent awards contained in 5 U.S.C. 8116(b). [41 FR 20408, May 18, 1976] § 3.959 Tuberculosis. Any veteran who, on August 19, 1968, was receiving or entitled to receive compensation for active or inactive (arrested) tuberculosis may receive compensation under 38 U.S.C. 1114(q) and 1156 as in effect before August 20, 1968. (Authority: Pub. L. 90-493; 82 Stat. 809) [33 FR 16275, Nov. 6, 1968] § 3.960 Section 306 and old-law pension protection. (a) General. (b) Termination. (1) A veteran pensioner ceases to be permanently and totally disabled. (2) A surviving spouse pensioner ceases to meet the definition of surviving spouse (3) A child pensioner ceases to meet the definition of child (4) A section 306 pensioner's countable annual income, determined under §§ 3.250 to 3.270, exceeds the applicable amount stated in § 3.26(a). (5) An old-law pensioner's countable annual income determined under §§ 3.250 to 3.270 exceeds the applicable amount stated in § 3.26(c). (6) A section 306 pensioner has a net worth of such size that it is reasonable that some part of it be consumed for the pensioner's maintenance. Evaluation of net worth shall be made under § 3.263. (c) Reduction. (d) Finality of termination. (Authority: Sec. 306 of Pub. L. 95-588, 92 Stat. 2497) [44 FR 45944, Aug. 6, 1979, as amended at 56 FR 28824, June 25, 1991] Accrued § 3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon death of a beneficiary. (a) Basic entitlement. (Authority: 38 U.S.C. 5121(a) (1) Upon the death of a veteran to the living person first listed as follows: (i) His or her spouse; (ii) His or her children (in equal shares); (iii) His or her dependent parents (in equal shares) or the surviving parent. (2) Upon the death of a surviving spouse or remarried surviving spouse, to the veteran's children. (3) Upon the death of a child, to the surviving children of the veteran entitled to survivors pension, compensation, or dependency and indemnity compensation. (4) Upon the death of a child claiming benefits under chapter 18 of this title, to the surviving parents. (5) In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. (See § 3.1002.) (b) Apportionments. (Authority: 38 U.S.C. 5121(a)(1)) (2) Where at the date of death of the veteran an apportioned share is being paid to or has been withheld on behalf of another person, the apportioned amount remaining unpaid for periods prior to the last day of the month before the veteran's death is payable to the apportionee. (3) Where the accrued death pension, compensation or dependency and indemnity compensation was payable for a child as an apportioned share of the surviving spouse's benefit, payment will be made under the provisions of paragraph (a)(5) of this section, on the expenses of such deceased child's last sickness or burial. (c) Claims and evidence. (1) If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the category of eligible persons under the provisions of paragraphs (a)(1) through (a)(5) or paragraph (b) of this section and that circumstances exist which make the claimant the specific person entitled to payment of all or part of any benefits which may have accrued, VA shall notify the claimant: (i) Of the type of information required to complete the application; (ii) That VA will take no further action on the claim unless VA receives the required information; and (iii) That if VA does not receive the required information within 1 year of the date of the original VA notification of information required, no benefits will be awarded on the basis of that application. (2) Failure to file timely claim, or a waiver of rights, by a preferred dependent will not serve to vest title in a person in a lower class or a claimant for reimbursement; neither will such failure or waiver by a person or persons in a joint class serve to increase the amount payable to another or others in the class. (Authority: 38 U.S.C. 5121(c); 5112(b)) (d) Definitions. Spouse (2) Child (3) Dependent parent Provided, (4) Evidence in the file at date of death (5) Claim for VA benefits pending on the date of death (e) Subsistence allowance. (f) Dependents' educational assistance. (g) Veterans educational assistance. (Authority: 38 U.S.C. 5121) (h) Clothing allowance. (i) Active service pay. (Authority: 38 U.S.C. 5304(c)) [26 FR 1608, Feb. 24, 1961, as amended at 27 FR 11892, Dec. 1, 1962; 30 FR 11389, Sept. 8, 1965; 31 FR 4790, Mar. 22, 1966; 34 FR 840, Jan. 18, 1969; 39 FR 15126, May 1, 1974; 56 FR 18733, Apr. 24, 1991; 56 FR 24239, May 29, 1991; 61 FR 67950, Dec. 26, 1996; 62 FR 5529, Feb. 6, 1997; 62 FR 35423, July 1, 1997; 67 FR 65708, Oct. 28, 2002; 71 FR 78369, Dec. 29, 2006; 80 FR 18117, Apr. 3, 2015] § 3.1001 Hospitalized competent veterans. The provisions of this section apply only to the payment of amounts actually withheld on a running award under § 3.551(b) which are payable in a lump sum after the veteran's death. (a) Basic entitlement. (1) The veteran's spouse, as defined in § 3.1000(d)(1); (2) The veteran's children (in equal shares), as defined in § 3.57 but without regard to their age or marital status; (3) The veteran's dependent parents (in equal shares), or the surviving dependent parent, as defined in § 3.1000(d)(3); (4) In all other cases, only so much of the lump sum may be paid as may be necessary to reimburse a person who bore the expenses of last sickness or burial. (See § 3.1002.) (b) Claim. (1) There is no time limit on the retroactive period of an award or for furnishing evidence. (2) Failure to file timely claim, or a waiver of rights, by a preferred dependent will not serve to vest title in a person in a lower class or a claimant for reimbursement; neither will such failure or waiver by a person or persons in a joint class serve to increase the amount payable to another or others in the class. (c) Lump sum withheld after discharge from institution. (Authority: 38 U.S.C. 5503) [26 FR 1609, Feb. 24, 1961, as amended at 27 FR 5539, June 12, 1962; 27 FR 8177, Aug. 16, 1962; 27 FR 11893, Dec. 1, 1962; 39 FR 15126, May 1, 1974] § 3.1002 Political subdivisions of United States. No part of any accrued benefits will be used to reimburse any political subdivision of the United States for expenses incurred in the last sickness or burial of any beneficiary. (See § 3.1(o)). (Authority: 38 U.S.C. 5121(b) and 5502(d)) [39 FR 15126, May 1, 1974] § 3.1003 Returned and canceled checks. Where the payee of a check for benefits has died prior to negotiating the check, the check shall be returned to the issuing office and canceled. (a) The amount represented by the returned check, or any amount recovered following improper negotiation of the check, shall be payable to the living person or persons in the order of precedence listed in § 3.1000(a)(1) through (5), except that the total amount payable shall not include any payment for the month in which the payee died (see § 3.500(g)), and payments to persons described in § 3.1000(a)(5) shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. (1) There is no limit on the retroactive period for which payment of the amount represented by the check may be made, and no time limit for filing a claim to obtain the proceeds of the check or for furnishing evidence to perfect a claim. (2) Nothing in this section will preclude payment to an otherwise entitled claimant having a lower order of precedence under § 3.1000(a)(1) through (5), if it is shown that the person or persons having a higher order of precedence are deceased at the time the claim is adjudicated. (b) Subject to the limitations in § 3.500(g) of this part, any amount not paid in the manner provided in paragraph (a) of this section shall be paid to the estate of the deceased payee, provided that the estate, including the amount paid under this paragraph, will not will not revert to the state because there is no one eligible to inherit it. (c) The provisions of this section do not apply to checks for lump sums representing amounts withheld under § 3.551(b) or § 3.557. These amounts are subject to the provisions of §§ 3.1001 and 3.1007, as applicable. (Authority: 38 U.S.C. 501(a), 5122) [59 FR 25329, May 16, 1994, as amended at 64 FR 54207, Oct. 6, 1999; 80 FR 18117, Apr. 3, 2015] §§ 3.1004-3.1006 [Reserved] § 3.1007 Hospitalized incompetent veterans. Where an award of disability pension for an incompetent veteran without dependents was reduced under § 3.551(b) because of hospitalization, institutional or domiciliary care by the Department of Veterans Affairs, or an award of disability pension, compensation or emergency officers' retirement pay was discontinued under former § 3.557(b) (as applicable prior to December 27, 2001) because the veteran was hospitalized by the United States or a political subdivision and had an estate which equaled or exceeded the statutory maximum, and the veteran dies before payment of amounts withheld or not paid by reason of such care, no part of such amount will be paid to any person. The provisions of this section are applicable to amounts withheld for periods prior to as well as subsequent to the rating of incompetency. The term dies before payment (Authority: 38 U.S.C. 5503) [39 FR 30349, Aug. 22, 1974, as amended at 66 FR 48561, Sept. 21, 2001; 68 FR 34543, June 10, 2003] § 3.1008 Accrued benefits payable to foreign beneficiaries. In case of death of the payee of any check in payment of periodic monetary benefits (other than insurance and servicemembers' indemnity) accruing under laws administered by the Department of Veterans Affairs, while the amount thereof remains in the special deposit account established by Pub. L. 828, 76th Congress, such amount will be payable under section 3 of that act. (31 U.S.C. 125) However, the accrued amount will be payable only if the person on whose behalf checks were issued and the person claiming the accrued amount have not been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or of its allies. [26 FR 1609, Feb. 24, 1961] § 3.1009 Personal funds of patients. The provisions of this section are applicable to gratuitous benefits deposited by the Department of Veterans Affairs either before, on, or after December 1, 1959, in a personal funds of patients account for an incompetent veteran who was incompetent at the date of death. Where the veteran died after November 30, 1959: (a) Eligible persons. (1) His or her spouse, as defined in § 3.1000(d)(1); (2) His or her children (in equal shares), as defined in § 3.57 but without regard to their age or marital status; (3) His or her dependent parents (in equal shares) as defined in § 3.59 or the surviving parent, provided that the parent was dependent within the meaning of § 3.250 at the date of the veteran's death. (4) In all other cases, only so much may be paid as may be necessary to reimburse a person who bore the expense of last sickness or burial. (See § 3.1002.) (Authority: 38 U.S.C. 5502(d)) (b) Claim. (1) There is no time limit for the submission of evidence. (2) Failure to file timely claim, or a waiver of rights, by a preferred dependent will not serve to vest title in a person in a lower class or a claimant for reimbursement; neither will such failure or waiver by a person or persons in a joint class serve to increase the amount payable to another or others in the class. [27 FR 5539, June 12, 1962, as amended at 28 FR 10487, Sept. 28, 1963; 39 FR 30349, Aug. 22, 1974] § 3.1010 Substitution under 38 U.S.C. 5121A following death of a claimant. (a) Eligibility. (b) Time and place for filing a request. (c) Request format. (2) In lieu of a specific request to substitute, a claim for accrued benefits, survivors pension, or dependency and indemnity compensation by an eligible person listed in § 3.1000(a)(1) through (5) is deemed to include a request to substitute if a claim for periodic monetary benefits (other than insurance and servicemembers' indemnity) under laws administered by the Secretary, or an appeal of a decision with respect to such a claim, was pending before the agency of original jurisdiction or the Board of Veterans' Appeals when the claimant died. A claimant for accrued benefits, survivors pension, or dependency and indemnity compensation may waive the right to substitute in writing over the claimant's signature. (d) Evidence of eligibility. (1) Of the evidence of eligibility required to complete the request to substitute; (2) That VA will take no further action on the request to substitute unless VA receives the evidence of eligibility; and (3) That VA must receive the evidence of eligibility no later than 60 days after the date of notification or one year after the claimant's death, whichever is later, or VA will deny the request to substitute. (e) Decisions on substitution requests. (1) Notification. (2) Appeals. (3) Joint class representative. joint class (ii) In the case of a joint class of potential substitutes, only one person of the joint class may be a substitute at any one time. The first eligible person in the joint class to file a request to substitute will be the substitute representing the joint class. (f) Adjudications involving a substitute. (1) Notice under 3.159. (2) Expansion of the claim not permitted. (3) Submission of evidence and other rights. (4) Board of Veterans' Appeals procedures. (g) Limitations on substitution. (1) A claim or appeal must be pending. (ii) An appeal is considered to be pending if a claimant filed a notice of disagreement in response to a notification from an agency of original jurisdiction of its decision on a claim, but dies before the Board of Veterans' Appeals issues a final decision on the appeal. If the Board issued a final decision on an appeal prior to the claimant's death, the appeal is not pending before VA for purposes of this section, even if the 120-day period for appealing the Board's decision to the Court of Appeals for Veterans Claims has not yet expired. (2) Benefits awarded. (3) Benefits for last sickness and burial only. (4) Substitution by subordinate members prohibited. (5) Death of a substitute. (Authority: 38 U.S.C. 5121, 5121A) (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0740) [79 FR 52982, Sept. 5, 2014] Subpart B—Burial Benefits Source: 79 FR 32658, June 6, 2014, unless otherwise noted. Authority: 105 Stat. 386, 38 U.S.C. 501(a), 2303-2308, unless otherwise noted. Burial Benefits: General § 3.1700 Types of VA burial benefits. (a) Burial benefits. (1) Burial allowance based on service-connected death; (2) Burial allowance based on non-service-connected death; (3) Burial allowance for a veteran who died while hospitalized by VA; (4) Burial plot or interment allowance; and (5) Reimbursement for transportation of remains. (b) Definitions. (1) Burial (2) Covered veterans' cemetery (i) A deceased veteran as described in 38 U.S.C. 2308(b) is eligible to be buried within the cemetery; (ii) The cemetery is either owned by a State or is on trust land owned by, or held in trust for, a Tribal organization; and (iii) The cemetery is one for which the Secretary has made a grant under 38 U.S.C. 2408. (c) Cross references. (i) Burial in a national cemetery (see §§ 38.600 and 38.617 through 38.629 of this chapter); (ii) Presidential memorial certificates (see 38 U.S.C. 112); (iii) Burial flags (see § 1.10 of this chapter); and (iv) Headstones or markers (see §§ 38.630 through 38.633 of this chapter). (2) The provisions of §§ 3.1702 through 3.1711 do not apply to any of the programs listed in paragraph (c)(1) of this section. [79 FR 32658, June 6, 2014, as amended at 89 FR 78253, Sept. 25, 2024] § 3.1701 Deceased veterans for whom VA may provide burial benefits. For purposes of providing burial benefits under subpart B of this part, the term “veteran” means the same as provided in 38 U.S.C. 101(2). A veteran must be deceased, and burial benefits for that veteran must be authorized by a specific provision of law. For purposes of the non-service-connected burial allowance under 38 U.S.C. 2303, the term “veteran” includes a person who died during a period deemed to be active military, naval, air, or space service under §§ 3.6(b)(7), 3.7(m) and 3.7(o). (Authority: 38 U.S.C. 101(2), 2303, 2307, 2308) [79 FR 32658, June 6, 2014, as amended at 87 FR 26126, May 3, 2022; 89 FR 78253, Sept. 25, 2024] § 3.1702 Persons who may receive burial benefits; priority of payments. (a) Automatic payments to surviving spouses of eligible deceased veterans. (2) VA may grant additional burial benefits, including the plot or interment allowance under § 3.1707, the transportation benefit under § 3.1709, and the service-connected burial allowance under § 3.1704, to the surviving spouse or any other eligible person in accordance with paragraph (b) of this section and based on a claim described in § 3.1703. (b) Priority of payments—claims received on or after July 7, 2014. (i) His or her surviving spouse; (ii) The survivor of a legal union between the deceased veteran and the survivor that is not covered by paragraph (b)(1)(i) of this section. For purposes of this paragraph, legal union (A) Existed on the date of the veteran's death, (B) Was recognized under the law of the State in which the couple formalized the relationship, and (C) Was evidenced by the State's issuance of documentation memorializing the relationship; (iii) His or her children, regardless of age; (iv) His or her parents or the surviving parent; or (v) The executor or administrator of the estate of the deceased veteran. If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will distribute the burial benefits to the person or persons entitled to such distribution under the laws of the veteran's last State of residence. (2) In the case of a veteran whose remains are unclaimed, VA will pay the person or entity that provided burial services and transportation subject to the limitations prescribed in §§ 3.1708 and 3.1709. (3) VA will pay burial benefits to a single representative of the categories in paragraph (b)(1) of this section. VA will not divide applicable burial benefits among claimants; it is the responsibility of the recipient to distribute benefits as may be required. (c) Priority of payments—claims received before July 7, 2014. (1) Claims for burial allowance may be executed by: (i) The funeral director, if entire bill or any balance is unpaid (if unpaid bill or the unpaid balance is less than the applicable statutory burial allowance, only the unpaid amount may be claimed by the funeral director); or (ii) The individual whose personal funds were used to pay burial, funeral, and transportation expenses; or (iii) The executor or administrator of the estate of the veteran or the estate of the person who paid the expenses of the veteran's burial or provided such services. If no executor or administrator has been appointed then by some person acting for such estate who will make distribution of the burial allowance to the person or persons entitled under the laws governing the distribution of interstate estates in the State of the decedent's personal domicile. (2) Claims for the plot or interment allowance (except for claims filed by a State, an agency or political subdivision thereof, or a Tribal organization) under § 3.1707 may be executed by: (i) The funeral director, if he or she provided the plot or interment services, or advanced funds to pay for them, and if the entire bill for such or any balance thereof is unpaid (if the unpaid bill or the unpaid balance is less than the statutory plot or interment allowance, only the unpaid amount may be claimed by the funeral director); or (ii) The person(s) whose personal funds were used to defray the cost of the plot or interment expenses; or (iii) The person or entity from whom the plot was purchased or who provided interment services if the bill for such is unpaid in whole or in part. An unpaid bill for a plot will take precedence in payment of the plot or interment allowance over an unpaid bill for other interment expenses or a claim for reimbursement for such expenses. Any remaining balance of the plot or interment allowance may then be applied to interment expenses; or (iv) The executor or administrator of the estate of the veteran or the estate of the person who bore the expense of the plot or interment expenses. If no executor or administrator has been appointed, claim for the plot or interment allowance may be filed as provided in paragraph (c)(1)(iii) of this section for the burial allowance. (Authority: 38 U.S.C. 2303, 2307, 2308) Cross Reference: § 3.1(i) for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 83 FR 39888, Aug. 13, 2018; 89 FR 78254, Sept. 25, 2024] § 3.1703 Claims for burial benefits. (a) When claims must be filed General rule. (2) Correction of character of discharge. (b) Supporting evidence General rule. (i) A claim, except as provided in § 3.1702(a); (ii) Proof of the veteran's death in accordance with § 3.211, Death; and (iii) For persons listed under § 3.1702(b), except as provided in § 3.1702(a), a statement certifying that the claimant incurred burial, plot or interment, or transportation costs of the deceased veteran. (2) Payment for transportation expenses. (3) Eligibility based on evidence of record. (The information collection requirements in this section are approved by the Office of Management and Budget under control number 2900-0003) (Authority: 38 U.S.C. 2304, 5107(a)) [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] Burial Benefits: Allowances & Expenses Paid by VA § 3.1704 Burial allowance based on service-connected death. (a) General rule. (b) Eligibility. (c) Additional allowances available based on service-connected death. (1) VA may pay the transportation benefit under § 3.1709; and (2) VA may pay the plot or interment allowance under § 3.1707(b). (Authority: 38 U.S.C. 2303, 2307, 2308) Cross Reference: § 3.1(i), for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] § 3.1705 Burial allowance based on non-service-connected death. (a) General rule. (b) Eligibility. (1) Was receiving VA pension or disability compensation; (2) Would have been receiving disability compensation but for the receipt of military retired pay; or (3) Had pending any of the following claims: (i) An original claim for pension or disability compensation, and the evidence in the claims file on the date of death and any evidence received under paragraph (d) of this section is sufficient to grant pension or disability compensation effective before the date of death; or (ii) A claim to reopen a previously denied pension or disability compensation claim, based on new and material evidence, and the evidence in the claims file on the date of the veteran's death and any evidence received under paragraph (d) of this section is sufficient to reopen the claim and grant pension or disability compensation effective before the date of death; or (iii) A claim for which a person would be eligible to substitute for the deceased veteran under 38 U.S.C. 5121A, Substitution in case of death of claimant, and that claim, once processed to completion by the substitute, results in the grant of pension or disability compensation effective before the date of death. (c) Evidence in the claims file on the date of the veteran's death (d) Requesting additional evidence. (e) Additional benefits available based on non-service-connected death. (1) VA may pay the transportation benefit under § 3.1709; and (2) VA may pay the plot or interment allowance under § 3.1707. (Authority: 38 U.S.C. 2303, 2304, 2308) Cross Reference: § 3.1(i), for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] § 3.1706 Burial allowance for a veteran who died while hospitalized by VA. (a) General rule. (b) Eligibility. (1) Was properly admitted to a VA facility (as described in 38 U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. 1710 or 1711(a); (2) Was transferred or admitted to a non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 U.S.C. 1703; (3) Was transferred or admitted to a nursing home for nursing home care at the expense of the U.S. under the authority of 38 U.S.C. 1720; (4) Was transferred or admitted to a State nursing home for nursing home care for which payment is authorized under the authority of 38 U.S.C. 1741; (5) Was traveling under proper prior authorization, and at VA expense, to or from a specified place for purpose of examination, treatment, or care; or (6) Was hospitalized by VA pursuant to any of paragraphs (b)(1) through (4) of this section but was not at the facility at the time of death and was: (i) On authorized absence that did not exceed 96 hours at the time of death; (ii) On unauthorized absence for a period not in excess of 24 hours at the time of death; or (iii) Absent from the facility for a period not in excess of 24 hours of combined authorized and unauthorized absence at the time of death. (c) Hospitalization in the Philippines. (d) Additional allowances available based on death while hospitalized by VA. (1) VA may pay the transportation benefit under § 3.1709; and (2) VA may pay the plot or interment allowance under § 3.1707. (Authority: 38 U.S.C. 2303, 2308) Cross Reference: § 3.1(z) for the definition of “nursing home”, § 3.1(i) for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] § 3.1707 Plot or interment allowances for burial in a State veterans cemetery or other cemetery. (a) General eligibility. (b) Plot or interment allowance for burial in a State or Tribal veterans cemetery. (1) Is claiming the plot or interment allowance for burial of the veteran in a cemetery, or section of a cemetery, owned by the State, agency or subdivision of the State, or on trust land owned by, or held in trust for, a Tribal organization; (2) Did not charge for the expense of the plot or interment; and (3) Uses the cemetery or section of a cemetery solely for the interment of: (i) Persons eligible for burial in a national cemetery; and (ii) In a claim based on a veteran's death after October 31, 2000, either: (A) Deceased members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery; (B) Deceased former members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery who were discharged or released from service under conditions other than dishonorable; or (C) Individuals described in 38 U.S.C. 2408(i)(2). (c) Plot or interment allowance payable based on burial in other than a State or Tribal veterans cemetery. (c) Plot or interment allowance payable based on burial in other than a State or Tribal veterans cemetery. (1) The veteran is eligible for a burial allowance under § 3.1705, Burial allowance based on non-service-connected death; (2) The veteran is eligible for a burial allowance under § 3.1706, Burial allowance for a veteran who died while hospitalized by VA; (3) The veteran was discharged from active service for a disability incurred or aggravated in line of duty (VA will accept the official service record of such discharge as proof of eligibility for the plot or interment allowance and VA will disregard any previous VA determination made in connection with a claim for monetary benefits that the disability was not incurred or aggravated in line of duty); or (4) The veteran, at the time of discharge from active service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability. (d) Definitions. plot burial plot Plot or interment expenses (Authority: 38 U.S.C. 501(a), 2303(b)) Cross Reference: § 3.1(i) for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] § 3.1708 Burial of a veteran whose remains are unclaimed. (a) General. (b) Eligibility. (1) There is no next of kin or other person claiming the remains of the deceased veteran; and (2) There are not sufficient resources available in the veteran's estate to cover the burial and funeral expenses. (c) Additional benefit for transportation of unclaimed remains. (d) Burial. (Authority: 38 U.S.C. 2303, 2308) Cross Reference: § 3.1(i) for the definition of “State”. [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] § 3.1709 Transportation expenses for burial. (a) General. (b) Eligibility for transportation to the place of burial under 38 U.S.C. 2303(a). (1) A veteran described in this paragraph is a deceased veteran who meets any of the following criteria: (i) A veteran covered under 38 CFR 3.1705(b), or a veteran who died of a service-connected disability and who also satisfies the criteria listed under 38 CFR 3.1705(b)). (ii) A veteran covered under 38 CFR 3.1706(b). (iii) A veteran covered under 38 CFR 3.1708(b). (2) A payment authorized under paragraph (b) of this section shall not duplicate any payment authorized under paragraph (c) of this section. (c) Eligibility for transportation benefit under 38 U.S.C. 2308. (1) A veteran described in this paragraph is a deceased veteran who: (i) Died as the result of a service-connected disability and who is not eligible for the transportation benefit under paragraph (b) of this section; or (ii) Died outside of a State. (2) The amount payable under this paragraph (c) will not exceed the cost of transporting the remains to the national cemetery closest to the veteran's last place of residence in which burial space is available and is subject to the limitations set forth in paragraph (d) of this section. (3) A payment authorized under this paragraph (c) shall not duplicate any payment authorized under paragraph (b) of this section. (d) Reimbursable transportation expenses. i.e. (2) A reasonable transportation expense is an expense that is usual and customary in the context of burial transportation, with a corresponding charge that is the usual and customary charge made to the general public for the same or similar services. (Authority: 38 U.S.C. 2303, 2308) [79 FR 32658, June 6, 2014, as amended at 89 FR 78254, Sept. 25, 2024] Burial Benefits: Other § 3.1710 Escheat (payment of burial benefits to an estate with no heirs). VA will not pay burial benefits if the payment would escheat (that is, would be turned over to the State because there are no heirs to the estate of the person to whom such benefits would be paid). (Authority: 38 U.S.C. 501(a)) § 3.1711 Effect of contributions by government, public, or private organizations. (a) Contributions by government or employer. (1) The allowable statutory amount; or (2) The amount of the total plot or interment expenses minus the amount of expenses paid by any or all of the organizations described in this paragraph (a). (b) Burial expenses paid by other agencies of the U.S. Burial allowance when Federal law or regulation also provides for payment. (2) Payment by military service department. (3) When a veteran dies while hospitalized. (Authority: 38 U.S.C. 2303) [79 FR 32658, June 6, 2014, as amended at 89 FR 78255, Sept. 25, 2024] § 3.1712 Effect of forfeiture on payment of burial benefits. (a) Forfeiture for fraud. (b) Forfeiture for treasonable acts or for subversive activity. (Authority: 38 U.S.C. 6103, 6104, 6105) Cross Reference: § 3.1(aa), for the definition of “fraud.” § 3.1713 Eligibility based on status before 1958. When any person dies who had a status under any law in effect on December 31, 1957, that afforded entitlement to burial benefits, burial benefits will be paid, if otherwise in order, even though such status does not meet the service requirements of 38 U.S.C. chapter 23. (Authority: 38 U.S.C. 2305) Subpart C [Reserved] Subpart D—Universal Adjudication Rules That Apply to Benefit Claims Governed by Part 3 of This Title Authority: 38 U.S.C. 501(a), unless otherwise noted. Source: 66 FR 18195, Apr. 6, 2001, unless otherwise noted. General § 3.2100 Scope of Applicability. Unless otherwise specified, the provisions of this subpart apply only to claims governed by part 3 of this title. (Authority: 38 U.S.C. 501(a)) § 3.2130 Will VA accept a signature by mark or thumbprint? VA will accept signatures by mark or thumbprint if: (a) They are witnessed by two people who sign their names and give their addresses, or (b) They are witnessed by an accredited agent, attorney, or service organization representative, or (c) They are certified by a notary public or any other person having the authority to administer oaths for general purposes, or (d) They are certified by a VA employee who has been delegated authority by the Secretary under 38 CFR 2.3. (Authority: 38 U.S.C. 5101). § 3.2400 Applicability of modernized review system. (a) Applicability. (1) For which VA issues notice of an initial decision on or after the effective date of the modernized review system as provided in 38 CFR 19.2(a); or (2) Where a claimant has elected review of a legacy claim under the modernized review system as provided in paragraph (c) of this section. (b) Legacy claims. (c) Election into the modernized review system. (1) Rapid appeals modernization program election. (2) Election after receiving a statement of the case. (d) Effect of election. [84 FR 171, Jan. 18, 2019, as amended at 84 FR 4336, Feb. 15, 2019] § 3.2500 Review of decisions. (a) Reviews available. (i) A request for higher-level review under § 3.2601 or (ii) An appeal to the Board under § 20.202 of this chapter. (2) At any time after VA issues notice of a decision on an issue within a claim, a claimant may file a supplemental claim under § 3.2501. (b) Concurrent election prohibited. (c) Continuously pursued issues. (1) Following notice of a decision on an initial claim or a supplemental claim, the claimant may file a supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals. (2) Following notice of a decision on a higher-level review, the claimant may file a supplemental claim or appeal to the Board of Veterans' Appeals. (See appeal to the Board, 38 CFR 20.202). (3) Following notice of a decision on an appeal to the Board of Veterans' Appeals, the claimant may file a supplemental claim or file a notice of appeal to the Court of Appeals for Veterans Claims. (4) Following a decision on an appeal to the Court of Appeals for Veterans Claims, the claimant may file a supplemental claim. (d) Voluntary withdrawal. (e) Changing review options while a review is pending adjudication Within one year of prior decision notice. (2) More than one year after notice of a decision. (f) Applicability. (g) Review of simultaneously contested claims. (h) Effective dates Continuously pursued claims. (2) Supplemental claims received more than one year after notice of decision. [84 FR 171, Jan. 18, 2019, as amended at 84 FR 4336, Feb. 15, 2019; 84 FR 54033, Oct. 9, 2019] § 3.2501 Supplemental claims. Except as otherwise provided, a claimant or his or her authorized representative, if any, who disagrees with a prior VA decision may file a supplemental claim (see § 3.1(p)(2)) by submitting in writing or electronically a complete application (see § 3.160(a)) on a form prescribed by the Secretary any time after the agency of original jurisdiction issues notice of a decision, regardless of whether the claim is pending (see § § (a) New and relevant evidence. (1) Definition. (2) Receipt prior to notice of a decision. (b) Evidentiary record. (c) Duty to assist. (d) Date of filing. (Authority: 38 U.S.C. 501, 5103A(h), 5108) [84 FR 172, Jan. 18, 2019] § 3.2502 Return by higher-level adjudicator or remand by the Board of Veterans' Appeals. Upon receipt of a returned claim from a higher-level adjudicator or remand by the Board of Veterans' Appeals, the agency of original jurisdiction will expeditiously readjudicate the claim in accordance with 38 U.S.C. 5109B. The agency of original jurisdiction retains jurisdiction of the claim. In readjudicating the claim, the agency of original jurisidction will correct all identified duty to assist errors, complete a new decision and issue notice to the claimant and or his or her legal representative in accordance with 3.103(f). The effective date of any evaluation and award of pension, compensation or dependency and indemnity compensation will be determined in accordance with the date of receipt of the initial claim as prescribed under § 3.2500(g). [84 FR 172, Jan. 18, 2019] Revisions § 3.2600 Legacy review of benefit claims decisions. This section applies only to legacy claims as defined in § 3.2400 in which a Notice of Disagreement is timely filed on or after June 1, 2001, under regulations applicable at the time of filing. (a) A claimant who has filed a Notice of Disagreement submitted in accordance with the provisions of § 20.201 of this chapter, and either § 20.302(a) or § 20.501(a) of this chapter, as applicable, with a decision of an agency of original jurisdiction on a benefit claim has a right to a review of that decision under this section. The review will be conducted by a Veterans Service Center Manager, Pension Management Center Manager, or Decision Review Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed. (b) Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to a review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision. (c) The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under the version of § 3.103(c) of this chapter predating Public Law 115-55. (d) The reviewer may grant a benefit sought in the claim notwithstanding § 3.105(b), but, except as provided in paragraph (e) of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision. (e) Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see § 3.105(a)). (f) Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the traditional appellate process by issuing a Statement of the Case. (Authority: 38 U.S.C. 5109A and 7105(d)) [66 FR 21874, May 2, 2001, as amended at 67 FR 46868, July 17, 2002; 74 FR 26959, June 5, 2009; 79 FR 57697, Sept. 25, 2014; 84 FR 172, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] § 3.2601 Higher-level review. (a) Applicability. (b) Requirements for election. (c) Complete request. (1) A complete request must provide the name of the claimant and the relationship to the veteran, if applicable; (2) A complete request must be signed by the claimant or a person legally authorized to sign for the claimant; and (3) A complete request must specify the date of the underlying decision for which review is requested and specify the issues for which review is requested. (d) Filing period. (e) Who may conduct a higher-level review. (f) Evidentiary record. (g) Duty to assist errors. (1) For disability evaluations, the maximum benefit (2) For ancillary benefits, the maximum benefit (3) For pension benefits or dependents indemnity compensation, the maximum benefit (h) Informal conferences. informal conference (i) De novo review. (j) Difference of opinion. (k) Notice requirements. (Authority: 38 U.S.C. 5109A and 7105(d)) [84 FR 173, Jan. 18, 2019]

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