[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2005 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          38


          Parts 0 to 17

                         Revised as of July 1, 2005


          Pensions, Bonuses, and Veterans' Relief
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2005
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 38:
          Chapter I--Department of Veterans Affairs                  3
  Finding Aids:
      Material Approved for Incorporation by Reference........     739
      Table of CFR Titles and Chapters........................     741
      Alphabetical List of Agencies Appearing in the CFR......     759
      List of CFR Sections Affected...........................     769

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 38 CFR 0.735-1 
                       refers to title 38, part 
                       0, section 735-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2005), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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and Finding Aids. This volume contains the Parallel Table of Statutory 
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that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

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appearing in the Code of Federal Regulations.

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 2005.

[[Page ix]]



                               THIS TITLE

    Title 38--Pensions, Bonuses and Veterans' Relief is composed of two 
volumes, parts 0-17 and part 18 to End. The contents of these volumes 
represent all current regulations of the Department of Veterans Affairs 
codified under this title of the CFR as of July 1, 2005.

    For this volume, Elmer Barksdale was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page 1]]



            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF




                   (This book contains parts 0 to 17)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of Veterans Affairs...................           0

[[Page 3]]



                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS




  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter I appear at 64 FR 
30244, June 7, 1999; 66 FR 44053, Aug. 22, 2001; and 66 FR 66767, Dec. 
27, 2001.
Part                                                                Page
0               Standards of ethical conduct and related 
                    responsibilities........................           5
1               General provisions..........................           6
2               Delegations of authority....................         133
3               Adjudication................................         141
4               Schedule for rating disabilities............         364
5               [Reserved]
6               United States Government life insurance.....         467
7               Soldiers' and sailors' civil relief.........         472
8               National Service Life Insurance.............         474
8a              Veterans Mortgage Life Insurance............         493
9               Servicemembers' Group Life Insurance and 
                    Veterans' Group Life Insurance..........         496
10              Adjusted compensation.......................         504
11              Loans by banks on and payment of adjusted 
                    service certificates....................         512
12              Disposition of veteran's personal funds and 
                    effects.................................         519
13              Veterans Benefits Administration, fiduciary 
                    activities..............................         530
14              Legal services, General Counsel, and 
                    miscellaneous claims....................         538
15              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Department 
                    of Veterans Affairs.....................         578
16              Protection of human subjects................         584
17              Medical.....................................         595

[[Page 5]]



PART 0_STANDARDS OF ETHICAL CONDUCT AND RELATED RESPONSIBILITIES--Table 
of Contents




                      Subpart A_General Provisions

Sec.
0.735-1 Agency ethics officials.
0.735-2 Government-wide standards.

 Subpart B_Standards of Ethical Conduct and Related Responsibilities of 
                                Employees

0.735-10 Cross-reference to employee ethical and other conduct standards 
          and financial disclosure regulations.
0.735-11 Other conduct on the job.
0.735-12 Standards of conduct in special areas.

    Authority: 5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and 
502(a) of E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified 
by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

    Source: 31 FR 5828, Apr. 15, 1966, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 0 appear at 61 FR 7216, 
Feb. 27, 1996.



                      Subpart A_General Provisions



Sec. 0.735-1  Agency ethics officials.

    (a) Designated Agency Ethics Official (DAEO). The Assistant General 
Counsel (023) is the designated agency ethics official (DAEO) for the 
Department of Veterans Affairs. The Deputy Assistant General Counsel 
(023C) is the alternate DAEO, who is designated to act in the DAEO's 
absence. The DAEO has primary responsibility for the administration, 
coordination, and management of the VA ethics program, pursuant to 5 CFR 
2638.201-204.
    (b) Deputy ethics officials. (1) The Regional Counsel are deputy 
ethics officials. They have been delegated the authority to act for the 
DAEO within their jurisdiction, under the DAEO's supervision, pursuant 
to 5 CFR 2638.204.
    (2) The alternate DAEO, the DAEO's staff, and staff in the Offices 
of Regional Counsel, may also act as deputy ethics officials pursuant to 
delegations of one or more of the DAEO's duties from the DAEO or the 
Regional Counsel.

[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]



Sec. 0.735-2  Government-wide standards.

    For government-wide standards of ethical conduct and related 
responsibilities for Federal employees, see 5 CFR Part 735 and Chapter 
XVI.

[61 FR 11309, Mar. 20, 1996. Redesignated at 63 FR 33579, June 19, 1998]



 Subpart B_Standards of Ethical Conduct and Related Responsibilities of 
                                Employees

    Source: 58 FR 61814, Nov. 23, 1993, unless otherwise noted.



Sec. 0.735-10  Cross-reference to employee ethical and other conduct 
standards and financial disclosure regulations.

    Employees of the Department of Veterans Affairs (VA) should refer to 
the executive branch-wide Standards of Ethical Conduct at 5 CFR part 
2635, the executive branch-wide Employee Responsibilities and Conduct at 
5 CFR part 735, and the executive branch-wide financial disclosure 
regulation at 5 CFR part 2634.



Sec. 0.735-11  Other conduct on the job.

    Relationship with beneficiaries and claimants. Employees are 
expected to be helpful to beneficiaries, patients and claimants, but:
    (a) An employee shall not procure intoxicants or drugs for, or 
attempt to sell intoxicants or drugs to, patients or members, or give or 
attempt to give intoxicants or drugs to them unless officially 
prescribed for medical use;
    (b) An employee shall not abuse patients, members, or other 
beneficiaries, whether or not provoked.



Sec. 0.735-12  Standards of conduct in special areas.

    (a) Safety. (1) Employees will observe safety instructions, signs, 
and normal safety practices and precautions, including the use of 
protective clothing and equipment.
    (2) An employee shall report each work-connected injury, accident or 
disease he or she suffers.
    (b) Furnishing testimony. Employees will furnish information and 
testify freely and honestly in cases respecting employment and 
disciplinary matters.

[[Page 6]]

Refusal to testify, concealment of material facts, or willfully 
inaccurate testimony in connection with an investigation or hearing may 
be ground for disciplinary action. An employee, however, will not be 
required to give testimony against himself or herself in any matter in 
which there is indication that he or she may be or is involved in a 
violation of law wherein there is a possibility of self-incrimination.



PART 1_GENERAL PROVISIONS--Table of Contents




  Department of Veterans Affairs Official Seal and Distinguishing Flag

Sec.
1.9 Description, use, and display of VA seal and flag.

               The United States Flag for Burial Purposes

1.10 Eligibility for and disposition of the United States flag for 
          burial purposes.

     Quarters for Department of Veterans Affairs Employees Overseas

1.11 Quarters for Department of Veterans Affairs employees in 
          Government-owned or -rented buildings overseas.

                           Program Evaluation

1.15 Standards for program evaluation.
1.17 Evaluation of studies relating to health effects of dioxin and 
          radiation exposure.
1.18 Guidelines for establishing presumptions of service connection for 
          former prisoners of war.

         Referrals of Information Regarding Criminal Violations

1.200 Purpose.
1.201 Employee's duty to report.
1.203 Information to be reported to VA Police.
1.204 Information to be reported to the Office of Inspector General.
1.205 Notification to the Attorney General or United States Attorney's 
          Office.

     Security and Law Enforcement at Department of Veterans Affairs 
                               Facilities

1.218 Security and law enforcement at VA facilities.

                  Parking Fees at VA Medical Facilities

1.300 Purpose.
1.301 Definitions.
1.302 Applicability and scope.
1.303 Policy.

Release of Information from Department of Veterans Affairs (VA) Records 
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the 
        Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia

1.460 Definitions.
1.461 Applicability.
1.462 Confidentiality restrictions.
1.463 Criminal penalty for violations.
1.464 Minor patients.
1.465 Incompetent and deceased patients.
1.466 Security for records.
1.467 Restrictions on the use of identification cards and public signs.
1.468 Relationship to Federal statutes protecting research subjects 
          against compulsory disclosure of their identity.
1.469 Patient access and restrictions on use.
1.470-1.474 [Reserved]

                   Disclosures With Patient's Consent

1.475 Form of written consent.
1.476 Prohibition on redisclosure.
1.477 Disclosures permitted with written consent.
1.478 Disclosures to prevent multiple enrollments in detoxification and 
          maintenance treatment programs; not applicable to records 
          relating to sickle cell anemia or infection with the human 
          immunodeficiency virus.
1.479 Disclosures to elements of the criminal justice system which have 
          referred patients.
1.480-1.484 [Reserved]

                   Disclosures Without Patient Consent

1.485 Medical emergencies.
1.486 Disclosure of information related to infection with the human 
          immunodeficiency virus to public health authorities.
1.487 Disclosure of information related to infection with the human 
          immunodeficiency virus to the spouse or sexual partner of the 
          patient.
1.488 Research activities.
1.489 Audit and evaluation activities.

              Court Orders Authorizing Disclosures and Use

1.490 Legal effect of order.
1.491 Confidential communications.
1.492 Order not applicable to records disclosed without consent to 
          researchers, auditors and evaluators.
1.493 Procedures and criteria for orders authorizing disclosures for 
          noncriminal purposes.
1.494 Procedures and criteria for orders authorizing disclosure and use 
          of records to criminally investigate or prosecute patients.
1.495 Procedures and criteria for orders authorizing disclosure and use 
          of records to

[[Page 7]]

          investigate or prosecute VA or employees of VA.
1.496 Orders authorizing the use of undercover agents and informants to 
          criminally investigate employees or agents of VA.
1.497-1.499 [Reserved]

  Release of Information From Department of Veterans Affairs Claimant 
                                 Records

1.500 General.
1.501 Release of information by the Secretary.
1.502 Disclosure of the amount of monetary benefits.
1.503 Disclosure of information to a veteran or his or her duly 
          authorized representative as to matters concerning the veteran 
          alone.
1.504 Disclosure of information to a widow, child, or other claimant.
1.505 Genealogy.
1.506 Disclosure of records to Federal Government departments, State 
          unemployment compensation agencies, and the Office of 
          Servicemembers' Group Life Insurance.
1.507 Disclosures to members of Congress.
1.508 Disclosure in cases where claimants are charged with or convicted 
          of criminal offenses.
1.509 Disclosure to courts in proceedings in the nature of an inquest.
1.510 Disclosure to insurance companies cooperating with the Department 
          of Justice in the defense of insurance suits against the 
          United States.
1.511 Disclosure of claimant records in connection with judicial 
          proceedings generally.
1.512 Disclosure of loan guaranty information.
1.513 Disclosure of information contained in Armed Forces service and 
          related medical records in Department of Veterans Affairs 
          custody.
1.514 Disclosure to private physicians and hospitals other than 
          Department of Veterans Affairs.
1.514a Disclosure to private psychologists.
1.515 To commanding officers of State soldiers' homes.
1.516 Disclosure of information to undertaker concerning burial of a 
          deceased veteran.
1.517 Disclosure of vocational rehabilitation and education information 
          to educational institutions cooperating with the Department of 
          Veterans Affairs.
1.518 Addresses of claimants.
1.519 Lists of names and addresses.
1.520 Confidentiality of social data.
1.521 Special restrictions concerning social security records.
1.522 Determination of the question as to whether disclosure will be 
          prejudicial to the mental or physical health of claimant.
1.523 [Reserved]
1.524 Persons authorized to represent claimants.
1.525 Inspection of records by or disclosure of information to 
          recognized representatives of organizations and recognized 
          attorneys.
1.526 Copies of records and papers.
1.527 Administrative review.

Release of Information From Department of Veterans Affairs Records Other 
                          Than Claimant Records

1.550 General.
1.551 [Reserved]
1.552 Public access to information that affects the public when not 
          published in the Federal Register as constructive notice.
1.553 Public access to other reasonably described records.
1.553a Time limits for Department of Veterans Affairs response to 
          requests for records.
1.554 Exemptions from public access to agency records.
1.554a Predisclosure notification procedures for confidential commercial 
          information.
1.555 Fees.
1.556 Requests for other reasonably described records.
1.557 Administrative review.
1.558-1.559 [Reserved]

  Safeguarding Personal Information in Department of Veterans Affairs 
                                 Records

1.575 Social security numbers in veterans' benefits matters.
1.576 General policies, conditions of disclosure, accounting of certain 
          disclosures, and definitions.
1.577 Access to records.
1.578 [Reserved]
1.579 Amendment of records.
1.580 Administrative review.
1.581 [Reserved]
1.582 Exemptions.
1.583-1.584 [Reserved]

        Inventions by Employees of Department of Veterans Affairs

1.650 Purpose.
1.651 Definitions.
1.652 Criteria for determining rights to employee inventions.
1.653 Delegation of authority.
1.654 Patenting of inventions.
1.655 Government license in invention of employee.
1.656 Information to be submitted by inventor.
1.657 Determination of rights.
1.658 Right of appeal.

[[Page 8]]

1.659 Relationship to incentive awards program.
1.660 Expeditious handling.
1.661 Information to be kept confidential.
1.662 Provisions of regulations made a condition of employment.
1.663 Licensing of Government-owned inventions.
1.664-1.666 [Reserved]

                     Administrative Control of Funds

1.670 Purpose.
1.671 Definitions.
1.672 Responsibilities.
1.673 Responsibility for violations of the administrative subdivision of 
          funds.

  Use of Official Mail in the Location and Recovery of Missing Children

1.700 Purpose.
1.701 Contact person for missing children official mail program.
1.702 Policy.
1.703 Percentage estimate.
1.704 [Reserved]
1.705 Restrictions on use of missing children information.

                           Homeless Claimants

1.710 Homeless claimants: Delivery of benefit payments and 
          correspondence.

   Appeals from Decisions of Contracting Officers Under the Contract 
                          Disputes Act of 1978

1.780 Board of Contract Appeals--jurisdiction.
1.781 Organization and address of the Board.
1.782 Policy and procedure.
1.783 Rules of the Board.

                   Part-Time Career Employment Program

1.891 Purpose of program.
1.892 Review of positions.
1.893 Establishing and converting part-time positions.
1.894 Annual goals and timetables.
1.895 Review and evaluation.
1.896 Publicizing vacancies.
1.897 Exceptions.

   Standards for Collection, Compromise, Suspension or Termination of 
  Collection Effort, and Referral of Civil Claims for Money or Property

1.900 Prescription of standards.
1.901 No private rights created.
1.902 Antitrust, fraud, and tax interagency claims.
1.903 Settlement, waiver, or compromise under other statutory or 
          regulatory authority.
1.904 Form of payment.
1.905 Subdivision of claims not authorized.
1.906 Required administrative proceedings.
1.907 Definitions.

                   Standards for Collection of Claims

1.910 Aggressive collection action.
1.911 Collection of debts owed by reason of participation in a benefits 
          program.
1.911a Collection of non-benefit debts.
1.912 Collection by offset.
1.912a Collection by offset--from VA benefit payments.
1.913 Liquidation of collateral.
1.914 Collection in installments.
1.915 Interest, administrative costs, and penalties.
1.916 Disclosure of debt information to consumer reporting agencies 
          (CRA).
1.917 Contracting for collection services.
1.918 Use and disclosure of mailing addresses.
1.919 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund, Federal Employees Retirement 
          System (FERS), final salary check, and lump sum leave 
          payments.
1.920 Referral of VA debts.
1.921 Analysis of costs.
1.922 Exemptions.
1.923 Administrative wage garnishment.
1.924 Suspension or revocation of eligibility for federal loans, loan 
          insurance, loan guarantees, licenses, permits, or privileges.

                   Standards for Compromise of Claims

1.930 Scope and application.
1.931 Bases for compromise.
1.932 Enforcement policy.
1.933 Joint and several liability.
1.934 Further review of compromise offers.
1.935 Consideration of tax consequences to the Government.
1.936 Mutual releases of the debtor and VA.

        Standards for Suspending or Terminating Collection Action

1.940 Scope and application.
1.941 Suspension of collection activity.
1.942 Termination of collection activity.
1.943 Exception to termination.
1.944 Discharge of indebtedness; reporting requirements.

             Referrals to GAO, Department of Justice, or IRS

1.950 Prompt referral.
1.951 Claims Collection Litigation Report (CCLR).
1.952 Preservation of evidence.
1.953 Minimum amount of referrals to the Department of Justice.

          Regional Office Committees on Waivers and Compromises

1.955 Regional office Committees on Waivers and Compromises.
1.956 Jurisdiction.

[[Page 9]]

1.957 Committee authority.
1.958 Finality of decisions.
1.959 Records and certificates.
1.960 Legal and technical assistance.
1.961 Releases.
1.962 Waiver of overpayments.
1.963 Waiver; other than loan guaranty.
1.963a Waiver; erroneous payments of pay and allowances.
1.964 Waiver; loan guaranty.
1.965 Application of standard.
1.966 Scope of waiver decisions.
1.967 Refunds.
1.968 [Reserved]
1.969 Revision of waiver decisions.
1.970 Standards for compromise.

                        Salary Offset Provisions

1.980 Scope.
1.981 Definitions.
1.982 Salary offsets of debts involving benefits under the laws 
          administered by VA.
1.983 Notice requirements before salary offsets of debts not involving 
          benefits under the laws administered by VA.
1.984 Request for a hearing.
1.985 Form, notice of, and conduct of hearing.
1.986 Result if employee fails to meet deadlines.
1.987 Review by hearing official or administrative law judge.
1.988 Written decision following a hearing requested under Sec. 1.984.
1.989 Review of VA records related to the debt.
1.990 Written agreement to repay debt as alternative to salary offset.
1.991 Procedures for salary offset: when deductions may begin.
1.992 Procedures for salary offset.
1.993 Non-waiver of rights.
1.994 Refunds.
1.995 Requesting recovery through centralized administrative offset.

    Authority: 38 U.S.C. 501(a), and as noted in specific sections.

    Editorial Note: Nomenclature changes to part 1 appear at 61 FR 7216, 
Feb. 27, 1996; 62 FR 35970, July 3, 1997; and 62 FR 47532, Sept. 9, 
1997.

  Department of Veterans Affairs Official Seal and Distinguishing Flag



Sec. 1.9  Description, use, and display of VA seal and flag.

    (a) General. This section describes the official seal and 
distinguishing flag of the of the Department of Veterans Affairs, and 
prescribes the rules for their custody and use.
    (b) Definitions.
    (1) VA means all organizational units of the Department of Veterans 
Affairs.
    (2) Embossed seal means an image of the official seal made on paper 
or other medium by using an embosser with a negative and positive die to 
create a raised impression.
    (3) Official seal means the original(s) of the VA seal showing the 
exact form, content, and colors thereof.
    (4) Replica means a copy of the official seal displaying the 
identical form, content, and colors thereof.
    (5) Reproduction means a copy of the official seal displaying the 
identical form and content, reproduced in only one color.
    (6) Secretary means the Secretary of Veterans Affairs.
    (7) Deputy Secretary means the Deputy Secretary of Veterans Affairs.
    (c) Custody of official seal and distinguishing flags. The Secretary 
or designee shall:
    (1) Have custody of:
    (i) The official seal and prototypes thereof, and masters, molds, 
dies, and other means of producing replicas, reproductions, and 
embossing seals and
    (ii) Production, inventory, and loan records relating to items 
specified in paragraph (c)(1)(i) of this section, and
    (2) Have custody of distinguishing flags, and be responsible for 
production, inventory, and loan records thereof.
    (d) Official Seal--(1) Description of official seal. The Department 
of Veterans Affairs prescribes as its official seal, of which judicial 
notice shall be taken pursuant to 38 U.S.C. 302, the imprint illustrated 
below:

[[Page 10]]

[GRAPHIC] [TIFF OMITTED] TC04NO91.000

    (i) The official seal includes an American eagle clutching a cord in 
its talons. The cord binds a 13-star U.S. flag and a 50-star U.S. flag. 
In the field over the eagle is a pentagon formation of stars, with one 
point down. The words Department of Veterans Affairs and United States 
of America surround the eagle, stars, and flags. A rope motif makes up 
the outermost ring of the seal.
    (ii) The eagle represents the eternal vigilance of all our nation's 
veterans. The stars represent the five branches of military service. The 
crossed flags represent our nation's history. The gold cord that binds 
the two flags, which is shown clutched in the eagle's talons is symbolic 
of those who have fallen in the defense of liberty. Each of the various 
individual items placed together in the seal is a salute to the past, 
present, and future.
    (iii) The colors used in the configuration are gold, brown, blue, 
white, silver, yellow, black, and red.
    (iv) The colors are derived from the American flag and from nature. 
By invoking this symbolism, the color scheme represents the Nation's 
commitment to its veterans.
    (2) Use of the official seal, replicas, reproductions, and embossing 
seals. (i) The Secretary or designees are authorized to affix replicas, 
reproductions, and embossed seals to appropriate documents, 
certifications, and other material for all purposes as authorized by 
this section.
    (ii) Replicas may be used only for:
    (A) Display in or adjacent to VA facilities, in Department 
auditoriums, presentation rooms, hearing rooms, lobbies, and public 
document rooms.
    (B) Offices of senior officials.
    (C) Official VA distinguishing flags, adopted and utilized pursuant 
to paragraph (e)(2) of this section.
    (D) Official awards, certificates, medals, and plaques.
    (E) Motion picture film, video tape, and other audiovisual media 
prepared by or for VA and attributed thereto.
    (F) Official prestige publications which represent the achievements 
or mission of VA.
    (G) For other similar official purposes.
    (H) For such other purposes as will tend to advance the aims, 
purposes and mission of the Department of Veterans Affairs as determined 
by the Secretary or Deputy Secretary.
    (iii) Reproductions may be used only on:
    (A) VA letterhead stationery.
    (B) Official VA identification cards and security credentials.
    (C) Business cards for VA employees.
    (D) Official VA signs.
    (E) Official publications or graphics issued by and attributed to 
VA, or joint statements of VA with one or more Federal agencies, State 
or local governments, or foreign governments.
    (F) Official awards, certificates, and medals.
    (G) Motion picture film, video tape, and other audiovisual media 
prepared by and for VA and attributed thereto.
    (H) For other similar official purposes.
    (I) For such other purposes as will tend to advance the aims, 
purposes and mission of the Department of Veterans Affairs as determined 
by the Secretary or Deputy Secretary.
    (iv) Use of the official seal and embossed seals:
    (A) Embossed seals may be used only on VA legal documents, including 
interagency or intergovernmental agreements with States, foreign patent 
applications, and similar official documents.
    (B) The official seal may be used only for those purposes related to 
the conduct of Departmental affairs in furtherance of the VA mission.

[[Page 11]]

    (e) Distinguishing flag. (1) Description of distinguishing flag.
    (i) The base or field of the flag shall be blue and a replica of the 
official seal shall appear on both sides thereof.
    (ii) A Class 1 flag shall be of nylon banner, measure 
4[foot]4 on the hoist by 5[foot]6 on the fly, 
exclusive of heading and hems, and be fringed on three edges with nylon 
fringe, 2\1/2\ wide.
    (iii) A Class 2 flag shall be of nylon banner, measure 3[foot] on 
the hoist by 5[foot] on the fly, exclusive of heading and hems, and be 
fringed on three edges with nylon fringe, 2\1/2\ wide.
    (iv) Each flag shall be manufactured in accordance with Department 
of Veterans Affairs Specification X-497G. The replica of the official 
seal shall be screen printed or embroidered on both sides.
    (2) Use of distinguishing flag. (i) VA distinguishing flags may be 
used only:
    (A) In the offices of the Secretary, Deputy Secretary, Assistant 
Secretaries, Deputy Assistant Secretaries and heads of field locations 
designated below:
    (1) Regional Offices.
    (2) Medical Centers and Outpatient Clinics.
    (3) Domiciliaries.
    (4) Marketing Centers and Supply Depots.
    (5) Data Processing Centers.
    (6) National Cemetery Offices.
    (7) Other locations as designated by the Deputy Assistant Secretary 
for Administration.
    (B) At official VA ceremonies.
    (C) In Department auditoriums, official presentation rooms, hearing 
rooms, lobbies, public document rooms, and in non-VA facilities in 
connection with events or displays sponsored by VA, and public 
appearances of VA officials.
    (D) On or in front of VA installation buildings.
    (E) Other such official VA purposes or purposes as will tend to 
advance the aims, purposes and mission of the Department of Veterans 
Affairs as determined by the Deputy Assistant Secretary for 
Administration.
    (f) Unauthorized uses of the seal and flag. (1) The official seal, 
replicas, reproductions, embossed seals, and the distinguished flag 
shall not be used, except as authorized by the Secretary or Deputy 
Secretary, in connection with:
    (i) Contractor-operated facilities.
    (ii) Souvenir or novelty items.
    (iii) Toys or commercial gifts or premiums.
    (iv) Letterhead design, except on official Departmental stationery.
    (v) Matchbook covers, calendars and similar items.
    (vi) Civilian clothing or equipment.
    (vii) Any article which may disparage the seal or flag or reflect 
unfavorably upon VA.
    (viii) Any manner which implies Departmental endorsement of 
commercial products or services, or of the commercial user's policies or 
activities.
    (2) Penalties for unauthorized use. Any person who uses the 
distinguishing flag, or the official seal, replicas, reproductions or 
embossed seals in a manner inconsistent with this section shall be 
subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017, 
providing penalties for their wrongful use, as applicable.

(Authority: 38 U.S.C. 302, 38 U.S.C. 501)

[55 FR 49518, Nov. 29, 1990]

               The United States Flag for Burial Purposes



Sec. 1.10  Eligibility for and disposition of the United States flag 
for burial purposes.

    (a) Eligibility for burial flags--(1) Persons eligible. (i) A 
veteran of any war, of Mexican border service, or of service after 
January 31, 1955, discharged or released from active duty under 
conditions other than dishonorable. (For the purpose of this section, 
the term Mexican border service means active military, naval, or air 
service during the period beginning on January 1, 1911, and ending on 
April 5, 1917, in Mexico, on the borders thereof, or in the waters 
adjacent thereto.)
    (ii) A peacetime veteran discharged or released, before June 27, 
1950, from the active military, naval, or air service, under conditions 
other than dishonorable, after serving at least one enlistment, or for a 
disability incurred or aggravated in line of duty.
    (iii) Any person who has died while in military or naval service of 
the United

[[Page 12]]

States after May 27, 1941. This subdivision authorizes and requires the 
furnishing of a flag only where the military or naval service does not 
furnish a flag immediately. The only cases wherein a flag is not 
supplied immediately are those of persons whose remains are interred 
outside the continental limits of the United States, or whose remains 
are not recovered or are recovered and not identified.
    (iv) Any person who served in the organized military forces of the 
Commonwealth of the Philippines while such forces were in the service of 
the Armed Forces of the United States pursuant to the military order of 
the President of the United States, dated July 26, 1941, including among 
such military forces organized guerrilla forces under commanders 
appointed, designated, or subsequently recognized by the Commander in 
Chief, Southwest Pacific Area, or other competent authority in the Army 
of the United States, and who dies after separation from such service 
under conditions other than dishonorable, on or after April 25, 1951.


(Authority: 38 U.S.C. 107(a))

    (v) Any deceased member or former member of the Selected Reserve (as 
described in section 10143 of title 10) who is not otherwise eligible 
for a flag under this section or section 1482(a) of title 10 and who:
    (A) Completed at least one enlistment as a member of the Selected 
Reserve or, in the case of an officer, completed the period of initial 
obligated service as a member of the Selected Reserve;
    (B) Was discharged before completion of the person's initial 
enlistment as a member of the Selected Reserve or, in the case of an 
officer, period of initial obligated service as a member of the Selected 
Reserve, for a disability incurred or aggravated in the line of duty; or
    (C) Died while a member of the Selected Reserve.


(Authority: 38 U.S.C. 2301(f)(1))

    (b) Disposition of burial flags. (1) When a flag is actually used to 
drape the casket of a deceased veteran, it must be delivered to the next 
of kin following interment. Where the flag is not claimed by the next of 
kin it may be given upon request to a close friend or associate of the 
deceased veteran. Such action will constitute final and conclusive 
determination of rights under this section. (38 U.S.C. 2301)
    (2) The phrase next of kin for the purpose of disposing of the flag 
used for burial purposes is defined as follows, with preference to 
entitlement in the order listed:
    (i) Widow or widower.
    (ii) Children, according to age (minor child may be issued a flag on 
application signed by guardian).
    (iii) Parents, including adoptive, stepparents, and foster parents.
    (iv) Brothers or sisters, including brothers or sisters of the 
halfblood.
    (v) Uncles or aunts.
    (vi) Nephews or nieces.
    (vii) Others--cousins, grandparents, etc. (but not in-laws).
    (3) The phrase close friend or associate for the purpose of 
disposing of the burial flag means any person who because of his or her 
relationship with the deceased veteran arranged for the burial or 
assisted in the burial arrangements. In the absence of a person falling 
in either of these categories, any person who establishes by evidence 
that he or she was a close friend or associate of the veteran may be 
furnished the burial flag. Where more than one request for the burial 
flag is received and each is accompanied by satisfactory evidence of 
relationship or association, the head of the field facility having 
jurisdiction of the burial flag quota will determine which applicant is 
the one most equitably entitled to the burial flag.

(Authority: 72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)

[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24 
FR 10106, Dec. 15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27, 
1977; 66 FR 27598, May 18, 2001]

[[Page 13]]

     Quarters for Department of Veterans Affairs Employees Overseas



Sec. 1.11  Quarters for Department of Veterans Affairs employees in 
Government-owned or -rented buildings overseas.

    Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee 
of the Department of Veterans Affairs permanently stationed in a foreign 
country may be furnished, without cost to him or her, living quarters, 
including heat, fuel, and light, in a Government-owned or -rented 
building. When in the interest of the service and when administratively 
feasible, an agreement may be entered into by the Under Secretary for 
Benefits or designee with another Federal agency, which is authorized to 
furnish quarters, to provide such quarters for Department of Veterans 
Affairs employees under the provisions of 31 U.S.C. 686. Quarters 
provided will be in lieu of any living quarters allowance to which the 
employee may otherwise be entitled.

(Authority: 72 Stat. 1114; 38 U.S.C. 501)

[33 FR 362, Jan. 10, 1968]

                           Program Evaluation



Sec. 1.15  Standards for program evaluation.

    (a) The Department of Veterans Affairs will evaluate all programs 
authorized under title 38 U.S.C. These evaluations will be conducted so 
as to determine each program's effectiveness in achieving its stated 
goals and in achieving such goals in relation to their cost. In 
addition, these evaluations will determine each program's impact on 
related programs and its structure and mechanism for delivery of 
services. All programs will be evaluated on a continuing basis and all 
evaluations will be conducted by Department of Veterans Affairs staff 
assigned to an organizational entity other than those responsible for 
program administration. These evaluations will be conducted with 
sufficient frequency to allow for an assessment of the continued 
effectiveness of the programs.
    (b) The program evaluation will be designed to determine if the 
existing program supports the intent of the law. A program evaluation 
must identify goals and objectives that support this intent, contain a 
method to measure fulfillment of the objectives, ascertain the degree to 
which goals and objectives are met, and report the findings and 
conclusions to Congress, as well as make them available to the public.
    (c) The goals must be clear, specific, and measurable. To be clear 
they must be readily understood, free from doubt or confusion, and 
specific goals must be explicitly set forth. They must be measurable by 
objective means. These means can include use of existing record systems, 
observations, and information from other sources.
    (d) All program evaluations require a detailed evaluation plan. The 
evaluation plan must clearly state the objectives of the program 
evaluation, the methodology to be used, resources to be committed, and a 
timetable of major phases.
    (e) Each program evaluation must be objective. It must report the 
accomplishments as well as the shortcomings of the program in an 
unbiased way. The program evaluation must have findings that give 
decision-makers information which is of a level of detail and importance 
to enable decisions to be made affecting either direction or operation. 
The information in the program evaluation must be timely, and must 
contain information of sufficient currency that decisions based on the 
data in the evaluation can be made with a high degree of confidence in 
the data.
    (f) Each program evaluation requires a systematic research design to 
collect the data necessary to measure the objectives. This research 
design should conform to the following:
    (1) Rationale. The research design for each evaluation should 
contain a specific rationale and should be structured to determine 
possible cause and effect relationships.
    (2) Relevancy. It must deal with issues currently existing within 
the program, within the Department, and within the environment in which 
the program operates.
    (3) Validity. The degree of statistical validity should be assessed 
within the research design. Alternatives include an assessment of cost 
of data collection

[[Page 14]]

vs. results necessary to support decisions.
    (4) Reliability. Use of the same research design by others should 
yield the same findings.
    (g) The final program evaluation report will be reviewed for 
comments and concurrence by relevant organizations within the Department 
of Veterans Affairs, but in no case should this review unreasonably 
delay the results of the evaluation. Where disagreement exists, the 
dissenting organization's position should be summarized for a decision 
by the Secretary.
    (h) The final program evaluation report will be forwarded, with 
approved recommendations, to the concerned organization. An action plan 
to accomplish the approved recommendations will be forwarded for 
evaluation by the evaluating entity.
    (i) Program evaluation results should be integrated to the maximum 
extent possible into Department of Veterans Affairs plans and budget 
submissions to ensure continuity with other Department of Veterans 
Affairs management processes.

(Authority: 38 U.S.C. 527)

[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]



Sec. 1.17  Evaluation of studies relating to health effects of dioxin 
and radiation exposure.

    (a) From time to time, the Secretary shall publish evaluations of 
scientific or medical studies relating to the adverse health effects of 
exposure to a herbicide containing 2, 3, 7, 8 tetrachlorodibenzo-p-
dioxin (dioxin) and/or exposure to ionizing radiation in the ``Notices'' 
section of the Federal Register.
    (b) Factors to be considered in evaluating scientific studies 
include:
    (1) Whether the study's findings are statistically significant and 
replicable.
    (2) Whether the study and its findings have withstood peer review.
    (3) Whether the study methodology has been sufficiently described to 
permit replication of the study.
    (4) Whether the study's findings are applicable to the veteran 
population of interest.
    (5) The views of the appropriate panel of the Scientific Council of 
the Veterans' Advisory Committee on Environmental Hazards.
    (c) When the Secretary determines, based on the evaluation of 
scientific or medical studies and after receiving the advice of the 
Veterans' Advisory Committee on Environmental Hazards and applying the 
reasonable doubt doctrine as set forth in paragraph (d)(1) of this 
section, that a significant statistical association exists between any 
disease and exposure to a herbicide containing dioxin or exposure to 
ionizing radiation, Sec. 3.311a or Sec. 3.311b of this title, as 
appropriate, shall be amended to provide guidelines for the 
establishment of service connection.
    (d)(1) For purposes of paragraph (c) of this section a significant 
statistical association shall be deemed to exist when the relative 
weights of valid positive and negative studies permit the conclusion 
that it is at least as likely as not that the purported relationship 
between a particular type of exposure and a specific adverse health 
effect exists.
    (2) For purposes of this paragraph a valid study is one which:
    (i) Has adequately described the study design and methods of data 
collection, verification and analysis;
    (ii) Is reasonably free of biases, such as selection, observation 
and participation biases; however, if biases exist, the investigator has 
acknowledged them and so stated the study's conclusions that the biases 
do not intrude upon those conclusions; and
    (iii) Has satisfactorily accounted for known confounding factors.
    (3) For purposes of this paragraph a valid positive study is one 
which satisfies the criteria in paragraph (d)(2) of this section and 
whose findings are statistically significant at a probability level of 
.05 or less with proper accounting for multiple comparisons and subgroup 
analyses.
    (4) For purposes of this paragraph a valid negative study is one 
which satisfies the criteria in paragraph (d)(2) of this section and has 
sufficient statistical power to detect an association between a 
particular type of exposure and a specific adverse health effect if such 
an association were to exist.
    (e) For purposes of assessing the relative weights of valid positive 
and negative studies, other studies affecting

[[Page 15]]

epidemiological assessments including case series, correlational studies 
and studies with insufficient statistical power as well as key 
mechanistic and animal studies which are found to have particular 
relevance to an effect on human organ systems may also be considered.
    (f) Notwithstanding the provisions of paragraph (d) of this section, 
a significant statistical association may be deemed to exist between a 
particular exposure and a specific disease if, in the Secretary's 
judgment, scientific and medical evidence on the whole supports such a 
decision.

(Authority: 38 U.S.C. 501; Pub. L. 98-542)

[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989]



Sec. 1.18  Guidelines for establishing presumptions of service connection 
for former prisoners of war.

    (a) Purpose. The Secretary of Veterans Affairs will establish 
presumptions of service connection for former prisoners of war when 
necessary to prevent denials of benefits in significant numbers of 
meritorious claims.
    (b) Standard. The Secretary may establish a presumption of service 
connection for a disease when the Secretary finds that there is at least 
limited/suggestive evidence that an increased risk of such disease is 
associated with service involving detention or internment as a prisoner 
of war and an association between such detention or internment and the 
disease is biologically plausible.
    (1) Definition. The phrase ``limited/suggestive evidence'' refers to 
evidence of a sound scientific or medical nature that is reasonably 
suggestive of an association between prisoner-of-war experience and the 
disease, even though the evidence may be limited because matters such as 
chance, bias, and confounding could not be ruled out with confidence or 
because the relatively small size of the affected population restricts 
the data available for study.
    (2) Examples. ``Limited/suggestive evidence'' may be found where one 
high-quality study detects a statistically significant association 
between the prisoner-of-war experience and disease, even though other 
studies may be inconclusive. It also may be satisfied where several 
smaller studies detect an association that is consistent in magnitude 
and direction. These examples are not exhaustive.
    (c) Duration of detention or internment. In establishing a 
presumption of service connection under paragraph (b) of this section, 
the Secretary may, based on sound scientific or medical evidence, 
specify a minimum duration of detention or internment necessary for 
application of the presumption.
    (d) Association. The requirement in paragraph (b) of this section 
that an increased risk of disease be ``associated'' with prisoner-of-war 
service may be satisfied by evidence that demonstrates either a 
statistical association or a causal association.
    (e) Evidence. In making determinations under paragraph (b) of this 
section, the Secretary will consider, to the extent feasible:
    (1) Evidence regarding the increased incidence of disease in former 
prisoners of war;
    (2) Evidence regarding the health effects of circumstances or 
hardships similar to those experienced by prisoners of war (such as 
malnutrition, torture, physical abuse, or psychological stress);
    (3) Evidence regarding the duration of exposure to circumstances or 
hardships experienced by prisoners of war that is associated with 
particular health effects; and
    (4) Any other sound scientific or medical evidence the Secretary 
considers relevant.
    (f) Evaluation of studies. In evaluating any study for the purposes 
of this section, the Secretary will consider:
    (1) The degree to which the study's findings are statistically 
significant;
    (2) The degree to which any conclusions drawn from the study data 
have withstood peer review;
    (3) Whether the methodology used to obtain the data can be 
replicated;
    (4) The degree to which the data may be affected by chance, bias, or 
confounding factors; and
    (5) The degree to which the data may be relevant to the experience 
of prisoners of war in view of similarities or differences in the 
circumstances of the study population.

[[Page 16]]

    (g) Contracts for Scientific Review and Analysis. To assist in 
making determinations under this section, the Secretary may contract 
with an appropriate expert body to review and summarize the scientific 
evidence, and assess the strength thereof, concerning the association 
between detention or internment as a prisoner of war and the occurrence 
of any disease, or for any other purpose relevant to the Secretary's 
determinations.

(Authority: 38 U.S.C. 501(a), 1110)

[69 FR 60089, Oct. 7, 2004]

         Referrals of Information Regarding Criminal Violations



Sec. 1.200  Purpose.

    This subpart establishes a duty upon and sets forth the mechanism 
for VA employees to report information about actual or possible criminal 
violations to appropriate law enforcement entities.

(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)

[68 FR 17550, Apr. 10, 2003]



Sec. 1.201  Employee's duty to report.

    All VA employees with knowledge or information about actual or 
possible violations of criminal law related to VA programs, operations, 
facilities, contracts, or information technology systems shall 
immediately report such knowledge or information to their supervisor, 
any management official, or directly to the Office of Inspector General.

(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)

[68 FR 17550, Apr. 10, 2003]



Sec. 1.203  Information to be reported to VA Police.

    Information about actual or possible violations of criminal laws 
related to VA programs, operations, facilities, or involving VA 
employees, where the violation of criminal law occurs on VA premises, 
will be reported by VA management officials to the VA police component 
with responsibility for the VA station or facility in question. If there 
is no VA police component with jurisdiction over the offense, the 
information will be reported to Federal, state or local law enforcement 
officials, as appropriate.

(Authority: 38 U.S.C. 902)

[68 FR 17550, Apr. 10, 2003]



Sec. 1.204  Information to be reported to the Office of Inspector General.

    Criminal matters involving felonies will also be immediately 
referred to the Office of Inspector General, Office of Investigations. 
VA management officials with information about possible criminal matters 
involving felonies will ensure and be responsible for prompt referrals 
to the OIG. Examples of felonies include but are not limited to, theft 
of Government property over $1000, false claims, false statements, drug 
offenses, crimes involving information technology systems and serious 
crimes against the person, i.e., homicides, armed robbery, rape, 
aggravated assault and serious physical abuse of a VA patient.

(Authority: 5 U.S.C. App. 3)

[68 FR 17550, Apr. 10, 2003]



Sec. 1.205  Notification to the Attorney General or United States 
Attorney's Office.

    VA police and/or the OIG, whichever has primary responsibility 
within VA for investigation of the offense in question, will be 
responsible for notifying the appropriate United States Attorney's 
Office, pursuant to 28 U.S.C. 535.

(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)

[68 FR 17550, Apr. 10, 2003]

     Security and Law Enforcement at Department of Veterans Affairs 
                               Facilities



Sec. 1.218  Security and law enforcement at VA facilities.

    (a) Authority and rules of conduct. Pursuant to 38 U.S.C. 901, the 
following rules and regulations apply at all property under the charge 
and control of VA (and not under the charge and control of the General 
Services Administration) and to all persons entering in or on such 
property. The head of the facility is charged with the responsibility 
for the enforcement of these rules and regulations and shall cause

[[Page 17]]

these rules and regulations to be posted in a conspicuous place on the 
property.
    (1) Closing property to public. The head of the facility, or 
designee, shall establish visiting hours for the convenience of the 
public and shall establish specific hours for the transaction of 
business with the public. The property shall be closed to the public 
during other than the hours so established. In emergency situations, the 
property shall be closed to the public when reasonably necessary to 
ensure the orderly conduct of Government business. The decision to close 
a property during an emergency shall be made by the head of the facility 
or designee. The head of the facility or designee shall have authority 
to designate areas within a facility as closed to the public.
    (2) Recording presence. Admission to property during periods when 
such property is closed to the public will be limited to persons 
authorized by the head of the facility or designee. Such persons may be 
required to sign a register and/or display identification documents when 
requested to do so by VA police, or other authorized individual. No 
person, without authorization, shall enter upon or remain on such 
property while the property is closed. Failure to leave such premises by 
unauthorized persons shall constitute an offense under this paragraph.
    (3) Preservation of property. The improper disposal of rubbish on 
property; the spitting on the property; the creation of any hazard on 
property to persons or things; the throwing of articles of any kind from 
a building; the climbing upon the roof or any part of the building, 
without permission; or the willful destruction, damage, or removal of 
Government property or any part thereof, without authorization, is 
prohibited. The destruction, mutilation, defacement, injury, or removal 
of any monument, gravestone, or other structure within the limits of any 
national cemetery is prohibited.
    (4) Conformity with signs and emergency conditions. The head of the 
facility, or designee, shall have authority to post signs of a 
prohibitory and directory nature. Persons, in and on property, shall 
comply with such signs of a prohibitory or directory nature, and during 
emergencies, with the direction of police authorities and other 
authorized officials. Tampering with, destruction, marring, or removal 
of such posted signs is prohibited.
    (5) Disturbances. Conduct on property which creates loud or unusual 
noise; which unreasonably obstructs the usual use of entrances, foyers, 
lobbies, corridors, offices, elevators, stairways, or parking lots; 
which otherwise impedes or disrupts the performance of official duties 
by Government employees; which prevents one from obtaining medical or 
other services provided on the property in a timely manner; or the use 
of loud, abusive, or otherwise improper language; or unwarranted 
loitering, sleeping, or assembly is prohibited. In addition to measures 
designed to secure voluntary terminations of violations of this 
paragraph the head of the facility or designee may cause the issuance of 
orders for persons who are creating a disturbance to depart the 
property. Failure to leave the premises when so ordered constitutes a 
further disturbance within the meaning of this rule, and the offender is 
subject to arrest and removal from the premises.
    (6) Gambling. Participating in games for money or for tangible or 
intangible things, or the operating of gambling devices, the conduct of 
a lottery or pool, or the selling or purchasing of numbers tickets, in 
or on property is prohibited.
    (7) Alcoholic beverages and narcotics. Operating a motor vehicle on 
property by a person under the influence of alcoholic beverages, 
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines 
is prohibited. Entering property under the influence of any narcotic 
drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic 
beverage (unless prescribed by a physician) is prohibited. The use on 
property of any narcotic drug, hallucinogen, marijuana, barbiturate, or 
amphetamine (unless prescribed by a physician) is prohibited. The 
introduction or possession of alcoholic beverages or any narcotic drug, 
hallucinogen, marijuana, barbiturate, and amphetamine on property is 
prohibited, except for liquor or drugs prescribed for use by medical 
authority for medical purposes. Provided such

[[Page 18]]

possession is consistent with the laws of the State in which the 
facility is located, liquor may be used and maintained in quarters 
assigned to employees as their normal abode, and away from the abode 
with the written consent of the head of the facility which specifies a 
special occasion for use and limits the area and period for the 
authorized use.
    (8) Soliciting, vending, and debt collection. Soliciting alms and 
contributions, commercial soliciting and vending of all kinds, 
displaying or distributing commercial advertising, or collecting private 
debts in or on property is prohibited. This rule does not apply to (i) 
national or local drives for funds for welfare, health, or other 
purposes as authorized under Executive Order 12353, Charitable Fund 
Raising (March 23, 1982), as amended by Executive Order 12404 (February 
10, 1983), and regulations issued by the Office of Personnel Management 
implementing these Executive Orders; (ii) concessions or personal 
notices posted by employees on authorized bulletin boards; and (iii) 
solicitation of labor organization membership or dues under 5 U.S.C. 
chapter 71.
    (9) Distribution of handbills. The distributing of materials such as 
pamphlets, handbills, and/or flyers, and the displaying of placards or 
posting of materials on bulletin boards or elsewhere on property is 
prohibited, except as authorized by the head of the facility or designee 
or when such distributions or displays are conducted as part of 
authorized Government activities.
    (10) Photographs for news, advertising, or commercial purposes. 
Photographs for advertising or commercial purposes may be taken only 
with the written consent of the head of the facility or designee. 
Photographs for news purposes may be taken at entrances, lobbies, 
foyers, or in other places designated by the head of the facility or 
designee.
    (11) Dogs and other animals. Dogs and other animals, except seeing-
eye dogs, shall not be brought upon property except as authorized by the 
head of the facility or designee.
    (12) Vehicular and pedestrian traffic. Drivers of all vehicles in or 
on property shall drive in a careful and safe manner at all times and 
shall comply with the signals and directions of police and all posted 
traffic signs. The blocking of entrances, driveways, walks, loading 
platforms, or fire hydrants in or on property is prohibited; parking in 
unauthorized locations or in locations reserved for other persons or 
contrary to the direction of posted signs is prohibited. Creating 
excessive noise on hospital or cemetery premises by muffler cut out, the 
excessive use of a horn, or other means is prohibited. Operation of a 
vehicle in a reckless or unsafe manner, drag racing, bumping, overriding 
curbs, or leaving the roadway is prohibited.
    (13) Weapons and explosives. No person while on property shall carry 
firearms, other dangerous or deadly weapons, or explosives, either 
openly or concealed, except for official purposes.
    (14) Demonstrations. (i) All visitors are expected to observe proper 
standards of decorum and decency while on VA property. Toward this end, 
any service, ceremony, or demonstration, except as authorized by the 
head of the facility or designee, is prohibited. Jogging, bicycling, 
sledding and other forms of physical recreation on cemetery grounds is 
prohibited.
    (ii) For the purpose of the prohibition expressed in this paragraph, 
unauthorized demonstrations or services shall be defined as, but not 
limited to, picketing, or similar conduct on VA property; any oration or 
similar conduct to assembled groups of people, unless the oration is 
part of an authorized service; the display of any placards, banners, or 
foreign flags on VA property unless approved by the head of the facility 
or designee; disorderly conduct such as fighting, threatening, violent, 
or tumultuous behavior, unreasonable noise or coarse utterance, gesture 
or display or the use of abusive language to any person present; and 
partisan activities, i.e., those involving commentary or actions in 
support of, or in opposition to, or attempting to influence, any current 
policy of the Government of the United States, or any private group, 
association, or enterprise.
    (15) Key security. The head of the facility of designee, will 
determine which employees, by virtue of their duties, shall have access 
to keys or barrier-

[[Page 19]]

card keys which operate locks to rooms or areas on the property. The 
unauthorized possession, manufacture, and/or use of such keys or barrier 
cards is prohibited. The surreptitious opening or attempted opening of 
locks or card-operated barrier mechanisms is prohibited.
    (16) Sexual misconduct. Any act of sexual gratification on VA 
property involving two or more persons, who do not reside in quarters on 
the property, is prohibited. Acts of prostitution or solicitation for 
acts of prostitution on VA property is prohibited. For the purposes of 
this paragraph, an act of prostitution is defined as the performance or 
the offer or agreement to perform any sexual act for money or payment.
    (b) Schedule of offenses and penalties. Conduct in violation of the 
rules and regulations set forth in paragraph (a) of this section 
subjects an offender to arrest and removal from the premises. Whomever 
shall be found guilty of violating these rules and regulations while on 
any property under the charge and control of VA is subject to a fine as 
stated in the schedule set forth herein or, if appropriate, the payment 
of fixed sum in lieu of appearance (forfeiture of collateral) as may be 
provided for in rules of the United States District Court. Violations 
included in the schedule of offenses and penalties may also subject an 
offender to a term of imprisonment of not more than six months, as may 
be determined appropriate by a magistrate or judge of the United States 
District Court:
    (1) Improper disposal of rubbish on property, $200.
    (2) Spitting on property, $25.
    (3) Throwing of articles from a building or the unauthorized 
climbing upon any part of a building, $50.
    (4) Willful destruction, damage, or removal of Government property 
without authorization, $500.
    (5) Defacement, destruction, mutilation or injury to, or removal, or 
disturbance of, gravemarker or headstone, $500.
    (6) Failure to comply with signs of a directive and restrictive 
nature posted for safety purposes, $50.
    (7) Tampering with, removal, marring, or destruction of posted 
signs, $150.
    (8) Entry into areas posted as closed to the public or others 
(trespass), $50.
    (9) Unauthorized demonstration or service in a national cemetery or 
on other VA property, $250.
    (10) Creating a disturbance during a burial ceremony, $250.
    (11) Disorderly conduct which creates loud, boisterous, and unusual 
noise, or which obstructs the normal use of entrances, exits, foyers, 
offices, corridors, elevators, and stairways or which tends to impede or 
prevent the normal operation of a service or operation of the facility, 
$250.
    (12) Failure to depart premises by unauthorized persons, $50.
    (13) Unauthorized loitering, sleeping or assembly on property, $50.
    (14) Gambling-participating in games of chance for monetary gain or 
personal property; the operation of gambling devices, a pool or lottery; 
or the taking or giving of bets, $200.
    (15) Operation of a vehicle under the influence of alcoholic 
beverages or nonprescribed narcotic drugs, hallucinogens, marijuana, 
barbiturates, or amphetamines, $500.
    (16) Entering premises under the influence of alcoholic beverages or 
narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines, 
$200.
    (17) Unauthorized use on property of alcoholic beverages or narcotic 
drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $300.
    (18) Unauthorized introduction on VA controlled property of 
alcoholic beverages or narcotic drugs, hallucinogens, marijuana, 
barbiturates, or amphetamines or the unauthorized giving of same to a 
patient or beneficiary, $500.
    (19) Unauthorized solicitation of alms and contributions on 
premises, $50.
    (20) Commercial soliciting or vending, or the collection of private 
debts on property, $50.
    (21) Distribution of pamphlets, handbills, and flyers, $25.
    (22) Display of placards or posting of material on property, $25.
    (23) Unauthorized photography on premises, $50.
    (24) Failure to comply with traffic directions of VA police, $25.

[[Page 20]]

    (25) Parking in spaces posted as reserved for physically disabled 
persons, $50.
    (26) Parking in no-parking areas, lanes, or crosswalks so posted or 
marked by yellow borders or yellow stripes, $25.
    (27) Parking in emergency vehicle spaces, areas and lanes bordered 
in red or posted as EMERGENCY VEHICLES ONLY or FIRE LANE, or parking 
within 15 feet of a fire hydrant, $50.
    (28) Parking within an intersection or blocking a posted vehicle 
entrance or posted exit lane, $25.
    (29) Parking in spaces posted as reserved or in excess of a posted 
time limit, $15.
    (30) Failing to come to a complete stop at a STOP sign, $25.
    (31) Failing to yield to a pedestrian in a marked and posted 
crosswalk, $25.
    (32) Driving in the wrong direction on a posted one-way street, $25.
    (33) Operation of a vehicle in a reckless or unsafe manner, too fast 
for conditions, drag racing, overriding curbs, or leaving the roadway, 
$100.
    (34) Exceeding posted speed limits:
    (i) By up to 10 mph, $25.
    (ii) By up to 20 mph, $50.
    (iii) By over 20 mph, $100.
    (35) Creating excessive noise in a hospital or cemetery zone by 
muffler cut out, excessive use of a horn, or other means, $50.
    (36) Failure to yield right of way to other vehicles, $50.
    (37) Possession of firearms, carried either openly or concealed, 
whether loaded or unloaded (except by Federal or State law enforcement 
officers on official business, $500.
    (38) Introduction or possession of explosives, or explosive devices 
which fire a projectile, ammunition, or combustibles, $500.
    (39) Possession of knives which exceed a blade length of 3 inches; 
switchblade knives; any of the variety of hatchets, clubs and hand-held 
weapons; or brass knuckles, $300.
    (40) The unauthorized possession of any of the variety of 
incapacitating liquid or gas-emitting weapons, $200.
    (41) Unauthorized possession, manufacture, or use of keys or barrier 
card-type keys to rooms or areas on the property, $200.
    (42) The surreptitious opening, or attempted opening, of locks or 
card-operated barrier mechanisms on property, $500.
    (43) Soliciting for, or the act of, prostitution, $250.
    (44) Any unlawful sexual activity, $250.
    (45) Jogging, bicycling, sledding or any recreational physical 
activity conducted on cemetery grounds, $50.
    (c) Enforcement procedures. (1) VA administration directors will 
issue policies and operating procedures governing the proper exercise of 
arrest and other law enforcement actions, and limiting the carrying and 
use of weapons by VA police officers. VA police officers found qualified 
under respective VA administration directives and duly appointed heads 
of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce 
these rules and regulations and other Federal laws on VA property in 
accordance with the policies and operating procedures issued by 
respective VA administration directors and under the direction of the 
head of the facility.
    (2) VA administration directors will prescribe training for VA 
police officers of the scope and duration necessary to assure the proper 
exercise of the law enforcement and arrest authority vested in them and 
to assure their abilities in the safe handling of situations involving 
patients and the public in general. VA police officers will successfully 
complete prescribed training in law enforcement procedures and the safe 
handling of patients as a condition of their retention of statutory law 
enforcement and arrest authority.
    (3) Nothing contained in the rules and regulations set forth in 
paragraph (a) of this section shall be construed to abrogate any other 
Federal laws or regulations, including assimilated offenses under 18 
U.S.C. 13, or any State or local laws and regulations applicable to the 
area in which the property is situated.

(Authority: 38 U.S.C. 901)

[50 FR 29226, July 18, 1985]

[[Page 21]]

                  Parking Fees at VA Medical Facilities



Sec. 1.300  Purpose.

    Sections 1.300 through 1.303 prescribe policies and procedures for 
establishing parking fees for the use of Department of Veterans Affairs 
controlled parking spaces at VA medical facilities.

(Authority: 38 U.S.C. 501, 8109)

[53 FR 25490, July 7, 1988]



Sec. 1.301  Definitions.

    As used in Sec. Sec. 1.300 through 1.303 of this title:
    (a) Secretary means the Secretary of Veterans Affairs.
    (b) Eligible person means any individual to whom the Secretary is 
authorized to furnish medical examination or treatment.
    (c) Garage means a structure or part of a structure in which 
vehicles may be parked.
    (d) Medical facility means any facility or part thereof which is 
under the jurisdiction of the Secretary for the provision of health-care 
services, including any necessary buildings and structures, garage or 
parking facility.
    (e) Parking facilities includes all surface and garage parking 
spaces at a VA medical facility.
    (f) Volunteer worker means an individual who performs services, 
without compensation, under the auspices of VA Voluntary Service (VAVS) 
at a VA medical facility, for the benefit of veterans receiving care at 
that medical facility.

(Authority: 38 U.S.C. 8109)

[53 FR 25490, July 7, 1988]



Sec. 1.302  Applicability and scope.

    (a) The provisions of Sec. Sec. 1.300 through 1.303 apply to VA 
medical facility parking facilities in the United States, its 
territories and possessions, and the Commonwealth of Puerto Rico, and to 
such parking facilities for the use of VA medical facilities jointly 
shared by VA and another Federal agency when the facility is operated by 
the VA. Sections 1.300 through 1.303 apply to all users of those parking 
facilities. Fees shall be assessed and collected at medical facilities 
where parking garages are constructed, acquired, or altered at a cost 
exceeding $500,000 (or, in the case of acquisition by lease, $100,000 
per year). The Secretary, in the exercise of official discretion, may 
also determine that parking fees shall be charged at any other VA 
medical facility.
    (b) All fees established shall be reasonable under the circumstances 
and shall cover all parking facilities used in connection with such VA 
medical facility.

(Authority: 38 U.S.C. 8109)

[53 FR 25490, July 7, 1988]



Sec. 1.303  Policy.

    (a) General. Parking spaces at VA medical facilities shall only be 
provided under the following conditions:
    (1) VA and its employees shall not be liable for any damages to 
vehicles (or their contents) parked in VA parking facilities, unless 
such damages are directly caused by such employees acting in the course 
of their VA employment.
    (2) Parking facilities at VA medical facilities shall only be made 
available at each medical facility for such periods and under such terms 
as prescribed by the facility director, consistent with Sec. Sec. 1.300 
through 1.303.
    (3) VA will limit parking facilities at VA medical facilities to the 
minimum necessary, and administer those parking facilities in full 
compliance with ridesharing regulations and Federal laws.
    (b) Fees. (1) As provided in Sec. 1.302, VA will assess VA 
employees, contractor employees, tenant employees, visitors, and other 
individuals having business at a VA medical facility where VA parking 
facilities are available, a parking fee for the use of that parking 
facility. All parking fees shall be set at a rate which shall be 
equivalent to one-half of the appropriate fair rental value (i.e., 
monthly, weekly, daily, hourly) for the use of equivalent commercial 
space in the vicinity of the medical facility, subject to the terms and 
conditions stated in paragraph (a) of this section. Fair rental value 
shall include an allowance for the costs of management of the parking 
facilities. The Secretary will determine the fair market rental value 
through use of generally accepted appraisal techniques. If the

[[Page 22]]

appraisal establishes that there is no comparable commercial rate 
because of the absence of commercial parking facilities within a two-
mile radius of the medical facility, then the rate established shall be 
not less than the lowest rate charged for parking at the VA medical 
facility with the lowest established parking fees. Rates established 
shall be reviewed biannually by the Secretary to reflect any increase or 
decrease in value as determined by appraisal updating.
    (2) No parking fees shall be established or collected for parking 
facilities used by or for vehicles of the following:
    (i) Volunteer workers in connection with such workers performing 
services for the benefit of veterans receiving care at the medical 
facility;
    (ii) A veteran or an eligible person in connection with such veteran 
or eligible person receiving examination or treatment;
    (iii) An individual transporting a veteran or eligible person 
seeking examination or treatment; and
    (iv) Federal Government employees using Government owned or leased 
or private vehicles for official business.

(Authority: 38 U.S.C. 8109)

[53 FR 25490, July 7, 1988]

Release of Information From Department of Veterans Affairs (VA) Records 
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the 
        Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia

    Note: Sections 1.460 through 1.499 of this part concern the 
confidentiality of information relating to drug abuse, alcoholism or 
alcohol abuse, infection with the human immunodeficiency virus, or 
sickle cell anemia in VA records and are applicable in combination with 
other regulations pertaining to the release of information from VA 
records. Sections 1.500 through 1.527, Title 38, Code of Federal 
Regulations, implement the provisions of 38 U.S.C. Sec. Sec. 5701 and 
5702. Sections 1.550 through 1.559 implement the provisions of 5 U.S.C. 
Sec. 552 (The Freedom of Information Act). Sections 1.575 through 1.584 
implement the provisions of 5 U.S.C. Sec. 552a (The Privacy Act of 
1974).
    The provisions of Sec. Sec. 1.460 through 1.499 of this part 
pertain to any program or activity, including education, treatment, 
rehabilitation or research, which relates to drug abuse, alcoholism or 
alcohol abuse, infection with the human immunodeficiency virus, or 
sickle cell anemia. The statutory authority for the drug abuse 
provisions and alcoholism or alcohol abuse provisions of Sec. Sec. 
1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the Veterans Omnibus 
Health Care Act of 1976 (38 U.S.C. Sec. Sec. 7331 through 7334), the 
authority for the human immunodeficiency virus provisions is Sec. 121 of 
Pub. L. 100-322, the Veterans' Benefits and Services Act of 1988 (38 
U.S.C. Sec. 7332); the authority for the sickle cell anemia provisions 
is Sec. 109 of Pub. L. 93-82, the Veterans Health Care Expansion Act of 
1973 (38 U.S.C. Sec. Sec. 1751-1754).

    Authority: 38 U.S.C. 1751-1754 and 7331-7334.

    Source: 60 FR 63929, Dec. 13, 1995, unless otherwise noted.



Sec. 1.460  Definitions.

    For purposes of Sec. Sec. 1.460 through 1.499 of this part, the 
following definitions apply:
    Alcohol abuse. The term ``alcohol abuse'' means the use of an 
alcoholic beverage which impairs the physical, mental, emotional, or 
social well-being of the user.
    Contractor. The term ``contractor'' means a person who provides 
services to VA such as data processing, dosage preparation, laboratory 
analyses or medical or other professional services. Each contractor 
shall be required to enter into a written agreement subjecting such 
contractor to the provisions of Sec. Sec. 1.460 through 1.499 of this 
part; 38 U.S.C. 5701 and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).
    Diagnosis. The term ``diagnosis'' means any reference to an 
individual's alcohol or drug abuse or to a condition which is identified 
as having been caused by that abuse or any reference to sickle cell 
anemia or infection with the human immunodeficiency virus which is made 
for the purpose of treatment or referral for treatment. A diagnosis 
prepared for the purpose of treatment or referral for treatment but 
which is not so used is covered by Sec. Sec. 1.460 through 1.499 of 
this part. These regulations do not apply to a diagnosis of drug 
overdose or alcohol intoxication which clearly shows that the individual 
involved is not an alcohol or drug abuser (e.g., involuntary ingestion

[[Page 23]]

of alcohol or drugs or reaction to a prescribed dosage of one or more 
drugs).
    Disclose or disclosure. The term ``disclose'' or ``disclosure'' 
means a communication of patient identifying information, the 
affirmative verification of another person's communication of patient 
identifying information, or the communication of any information from 
the record of a patient who has been identified.
    Drug abuse. The term ``drug abuse'' means the use of a psychoactive 
substance for other than medicinal purposes which impairs the physical, 
mental, emotional, or social well-being of the user.
    Infection with the human immunodeficiency virus (HIV). The term 
``infection with the human immunodeficiency virus (HIV)'' means the 
presence of laboratory evidence for human immunodeficiency virus 
infection. For the purposes of Sec. Sec. 1.460 through 1.499 of this 
part, the term includes the testing of an individual for the presence of 
the virus or antibodies to the virus and information related to such 
testing (including tests with negative results).
    Informant. The term ``informant'' means an individual who is a 
patient or employee or who becomes a patient or employee at the request 
of a law enforcement agency or official and who at the request of a law 
enforcement agency or official observes one or more patients or 
employees for the purpose of reporting the information obtained to the 
law enforcement agency or official.
    Patient. The term ``patient'' means any individual or subject who 
has applied for or been given a diagnosis or treatment for drug abuse, 
alcoholism or alcohol abuse, infection with the human immunodeficiency 
virus, or sickle cell anemia and includes any individual who, after 
arrest on a criminal charge, is interviewed and/or tested in connection 
with drug abuse, alcoholism or alcohol abuse, infection with the human 
immunodeficiency virus, or sickle cell anemia in order to determine that 
individual's eligibility to participate in a treatment or rehabilitation 
program. The term patient includes an individual who has been diagnosed 
or treated for alcoholism, drug abuse, HIV infection, or sickle cell 
anemia for purposes of participation in a VA program or activity 
relating to those four conditions, including a program or activity 
consisting of treatment, rehabilitation, education, training, 
evaluation, or research. The term ``patient'' for the purpose of 
infection with the human immunodeficiency virus or sickle cell anemia, 
includes one tested for the disease.
    Patient identifying information. The term ``patient identifying 
information'' means the name, address, social security number, 
fingerprints, photograph, or similar information by which the identity 
of a patient can be determined with reasonable accuracy and speed either 
directly or by reference to other publicly available information. The 
term does not include a number assigned to a patient by a treatment 
program, if that number does not consist of, or contain numbers (such as 
social security, or driver's license number) which could be used to 
identify a patient with reasonable accuracy and speed from sources 
external to the treatment program.
    Person. The term ``person'' means an individual, partnership, 
corporation, Federal, State or local government agency, or any other 
legal entity.
    Records. The term ``records'' means any information received, 
obtained or maintained, whether recorded or not, by an employee or 
contractor of VA, for the purpose of seeking or performing VA program or 
activity functions relating to drug abuse, alcoholism, tests for or 
infection with the human immunodeficiency virus, or sickle cell anemia 
regarding an identifiable patient. A program or activity function 
relating to drug abuse, alcoholism, infection with the human 
immunodeficiency virus, or sickle cell anemia includes evaluation, 
treatment, education, training, rehabilitation, research, or referral 
for one of these conditions. Sections 1.460 through 1.499 of this part 
apply to a primary or other diagnosis, or other information which 
identifies, or could reasonably be expected to identify, a patient as 
having a drug or alcohol abuse condition, infection with the human 
immunodeficiency virus, or sickle cell anemia

[[Page 24]]

(e.g., alcoholic psychosis, drug dependence), but only if such diagnosis 
or information is received, obtained or maintained for the purpose of 
seeking or performing one of the above program or activity functions. 
Sections 1.460 through 1.499 of this part do not apply if such diagnosis 
or other information is not received, obtained or maintained for the 
purpose of seeking or performing a function or activity relating to drug 
abuse, alcoholism, infection with the human immunodeficiency virus, or 
sickle cell anemia for the patient in question. Whenever such diagnosis 
or other information, not originally received or obtained for the 
purpose of obtaining or providing one of the above program or activity 
functions, is subsequently used in connection with such program or 
activity functions, those original entries become a ``record'' and 
Sec. Sec. 1.460 through 1.499 of this part thereafter apply to those 
entries. Segregability: these regulations do not apply to records or 
information contained therein, the disclosure of which (the 
circumstances surrounding the disclosure having been considered) could 
not reasonably be expected to disclose the fact that a patient has been 
connected with a VA program or activity function relating to drug abuse, 
alcoholism, infection with the human immunodeficiency virus, or sickle 
cell anemia.
    (1) The following are examples of instances whereby records or 
information related to alcoholism or drug abuse are covered by the 
provisions of Sec. Sec. 1.460 through 1.499 of this part:
    (i) A patient with alcoholic delirium tremens is admitted for 
detoxification. The patient is offered treatment in a VA alcohol 
rehabilitation program which he declines.
    (ii) A patient who is diagnosed as a drug abuser applies for and is 
provided VA drug rehabilitation treatment.
    (iii) While undergoing treatment for an unrelated medical condition, 
a patient discusses with the physician his use and abuse of alcohol. The 
physician offers VA alcohol rehabilitation treatment which is declined 
by the patient.
    (2) The following are examples of instances whereby records or 
information related to alcoholism or drug abuse are not covered by the 
provisions of Sec. Sec. 1.460 through 1.499 of this part:
    (i) A patient with alcoholic delirium tremens is admitted for 
detoxification, treated and released with no counseling or treatment for 
the underlying condition of alcoholism.
    (ii) While undergoing treatment for an unrelated medical condition, 
a patient informs the physician of a history of drug abuse fifteen years 
earlier with no ingestion of drugs since. The history and diagnosis of 
drug abuse is documented in the hospital summary and no treatment is 
sought by the patient or offered or provided by VA during the current 
period of treatment.
    (iii) While undergoing treatment for injuries sustained in an 
accident, a patient's medical record is documented to support the 
judgment of the physician to prescribe certain alternate medications in 
order to avoid possible drug interactions in view of the patient's 
enrollment and treatment in a non-VA methadone maintenance program. The 
patient states that continued treatment and follow-up will be obtained 
from private physicians and VA treatment for the drug abuse is not 
sought by the patient nor provided or offered by the staff.
    (iv) A patient is admitted to the emergency room suffering from a 
possible drug overdose. The patient is treated and released; a history 
and diagnosis of drug abuse may be documented in the hospital summary. 
The patient is not offered treatment for the underlying conditions of 
drug abuse, nor is treatment sought by the patient for that condition.
    Third party payer. The term ``third party payer'' means a person who 
pays, or agrees to pay, for diagnosis or treatment furnished to a 
patient on the basis of a contractual relationship with the patient or a 
member of his or her family or on the basis of the patient's eligibility 
for Federal, State, or local governmental benefits.
    Treatment. The term ``treatment'' means the management and care of a 
patient for drug abuse, alcoholism or alcohol abuse, infection with the 
human immunodeficiency virus, or sickle cell anemia, or a condition 
which is identified as having been

[[Page 25]]

caused by one or more of these conditions, in order to reduce or 
eliminate the adverse effects upon the patient. The term includes 
testing for the human immunodeficiency virus or sickle cell anemia.
    Undercover agent. The term ``undercover agent'' means an officer of 
any Federal, State, or local law enforcement agency who becomes a 
patient or employee for the purpose of investigating a suspected 
violation of law or who pursues that purpose after becoming a patient or 
becoming employed for other purposes.

(Authority: 38 U.S.C. 7334)



Sec. 1.461  Applicability.

    (a) General--(1) Restrictions on disclosure. The restrictions on 
disclosure in these regulations apply to any information whether or not 
recorded, which:
    (i) Would identify a patient as an alcohol or drug abuser, an 
individual tested for or infected with the human immunodeficiency virus 
(HIV), hereafter referred to as HIV, or an individual with sickle cell 
anemia, either directly, by reference to other publicly available 
information, or through verification of such an identification by 
another person; and
    (ii) Is provided or obtained for the purpose of treating alcohol or 
drug abuse, infection with the HIV, or sickle cell anemia, making a 
diagnosis for that treatment, or making a referral for that treatment as 
well as for education, training, evaluation, rehabilitation and research 
program or activity purposes.
    (2) Restriction on use. The restriction on use of information to 
initiate or substantiate any criminal charges against a patient or to 
conduct any criminal investigation of a patient applies to any 
information, whether or not recorded, which is maintained for the 
purpose of treating drug abuse, alcoholism or alcohol abuse, infection 
with the HIV, or sickle cell anemia, making a diagnosis for that 
treatment, or making a referral for that treatment as well as for 
education, training, evaluation, rehabilitation, and research program or 
activity purposes.
    (b) Period covered as affecting applicability. The provisions of 
Sec. Sec. 1.460 through 1.499 of this part apply to records of 
identity, diagnosis, prognosis, or treatment pertaining to any given 
individual maintained over any period of time which, irrespective of 
when it begins, does not end before March 21, 1972, in the case of 
diagnosis or treatment for drug abuse; or before May 14, 1974, in the 
case of diagnosis or treatment for alcoholism or alcohol abuse; or 
before September 1, 1973, in the case of testing, diagnosis or treatment 
of sickle cell anemia; or before May 20, 1988, in the case of testing, 
diagnosis or treatment for an infection with the HIV.
    (c) Exceptions--(1) Department of Veterans Affairs and Armed Forces. 
The restrictions on disclosure in Sec. Sec. 1.460 through 1.499 of this 
part do not apply to communications of information between or among 
those components of VA who have a need for the information in connection 
with their duties in the provision of health care, adjudication of 
benefits, or in carrying out administrative responsibilities related to 
those functions, including personnel of the Office of the Inspector 
General who are conducting audits, evaluations, healthcare inspections, 
or non-patient investigations, or between such components and the Armed 
Forces, of information pertaining to a person relating to a period when 
such person is or was subject to the Uniform Code of Military Justice. 
Information obtained by VA components under these circumstances may be 
disclosed outside of VA to prosecute or investigate a non-patient only 
in accordance with Sec. 1.495 of this part. Similarly, the restrictions 
on disclosure in Sec. Sec. 1.460 through 1.499 of this part do not 
apply to communications of information to the Department of Justice or 
U.S. Attorneys who are providing support in civil litigation or possible 
litigation involving VA.
    (2) Contractor. The restrictions on disclosure in Sec. Sec. 1.460 
through 1.499 of this part do not apply to communications between VA and 
a contractor of information needed by the contractor to provide his or 
her services.
    (3) Crimes on VA premises or against VA personnel. The restrictions 
on disclosure and use in Sec. Sec. 1.460 through 1.499 of this part do 
not apply to communications from VA personnel to law enforcement 
officers which:

[[Page 26]]

    (i) Are directly related to a patient's commission of a crime on the 
premises of the facility or against personnel of VA or to a threat to 
commit such a crime; and
    (ii) Are limited to the circumstances of the incident, including the 
patient status of the individual committing or threatening to commit the 
crime, that individual's name and address to the extent authorized by 38 
U.S.C. 5701(f)(2), and that individual's last known whereabouts.
    (4) Undercover agents and informants. (i) Except as specifically 
authorized by a court order granted under Sec. 1.495 of this part, VA 
may not knowingly employ, or admit as a patient, any undercover agent or 
informant in any VA drug abuse, alcoholism or alcohol abuse, HIV 
infection, or sickle cell anemia treatment program.
    (ii) No information obtained by an undercover agent or informant, 
whether or not that undercover agent or informant is placed in a VA drug 
abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia 
treatment program pursuant to an authorizing court order, may be used to 
criminally investigate or prosecute any patient unless authorized 
pursuant to the provisions of Sec. 1.494 of this part.
    (iii) The enrollment of an undercover agent or informant in a 
treatment unit shall not be deemed a violation of this section if the 
enrollment is solely for the purpose of enabling the individual to 
obtain treatment for drug or alcohol abuse, HIV infection, or sickle 
cell anemia.
    (d) Applicability to recipients of information--(1) Restriction on 
use of information. In the absence of a proper Sec. 1.494 court order, 
the restriction on the use of any information subject to Sec. Sec. 
1.460 through 1.499 of this part to initiate or substantiate any 
criminal charges against a patient or to conduct any criminal 
investigation of a patient applies to any person who obtains that 
information from VA, regardless of the status of the person obtaining 
the information or of whether the information was obtained in accordance 
with Sec. Sec. 1.460 through 1.499 of this part. This restriction on 
use bars, among other things, the introduction of that information as 
evidence in a criminal proceeding and any other use of the information 
to investigate or prosecute a patient with respect to a suspected crime. 
Information obtained by undercover agents or informants (see paragraph 
(c) of this section) or through patient access (see Sec. 1.469 of this 
part) is subject to the restriction on use.
    (2) Restrictions on disclosures--third-party payers and others. The 
restrictions on disclosure in Sec. Sec. 1.460 through 1.499 of this 
part apply to third-party payers and persons who, pursuant to a consent, 
receive patient records directly from VA and who are notified of the 
restrictions on redisclosure of the records in accordance with Sec. 
1.476 of this part.

(Authority: 38 U.S.C. 7332(e) and 7334)



Sec. 1.462  Confidentiality restrictions.

    (a) General. The patient records to which Sec. Sec. 1.460 through 
1.499 of this part apply may be disclosed or used only as permitted by 
these regulations and may not otherwise be disclosed or used in any 
civil, criminal, administrative, or legislative proceedings conducted by 
any Federal, State, or local authority. Any disclosure made under these 
regulations must be limited to that information which is necessary to 
carry out the purpose of the disclosure.
    (b) Unconditional compliance required. The restrictions on 
disclosure and use in Sec. Sec. 1.460 through 1.499 of this part apply 
whether the person seeking the information already has it, has other 
means of obtaining it, is a law enforcement or other official, has 
obtained a subpoena, or asserts any other justification for a disclosure 
or use which is not permitted by Sec. Sec. 1.460 through 1.499 of this 
part. These provisions do not prohibit VA from acting accordingly when 
there is no disclosure of information.
    (c) Acknowledging the presence of patients: responding to requests. 
(1) The presence of an identified patient in a VA facility for the 
treatment or other VA program activity relating to drug abuse, 
alcoholism or alcohol abuse, infection with the HIV, or sickle cell 
anemia may be acknowledged only if the patient's written consent is 
obtained in accordance with Sec. 1.475 of this part or if an 
authorizing court order is entered in accordance with Sec. Sec. 1.490 
through 1.499 of

[[Page 27]]

this part. Acknowledgment of the presence of an identified patient in a 
facility is permitted if the acknowledgment does not reveal that the 
patient is being treated for or is otherwise involved in a VA program or 
activity concerning drug abuse, alcoholism or alcohol abuse, infection 
with the HIV, or sickle cell anemia.
    (2) Any answer to a request for a disclosure of patient records 
which is not permissible under Sec. Sec. 1.460 through 1.499 of this 
part must be made in a way that will not affirmatively reveal that an 
identified individual has been, or is being diagnosed or treated for 
drug abuse, alcoholism or alcohol abuse, infection with the HIV, or 
sickle cell anemia. These regulations do not restrict a disclosure that 
an identified individual is not and never has been a patient.

(Authority: 38 U.S.C. 7334)



Sec. 1.463  Criminal penalty for violations.

    Under 38 U.S.C. 7332(g), any person who violates any provision of 
this statute or Sec. Sec. 1.460 through 1.499 of this part shall be 
fined not more than $5,000 in the case of a first offense, and not more 
than $20,000 for a subsequent offense.

(Authority: 38 U.S.C. 7332(g))



Sec. 1.464  Minor patients.

    (a) Definition of minor. As used in Sec. Sec. 1.460 through 1.499 
of this part the term ``minor'' means a person who has not attained the 
age of majority specified in the applicable State law, or if no age of 
majority is specified in the applicable State law, the age of eighteen 
years.
    (b) State law not requiring parental consent to treatment. If a 
minor patient acting alone has the legal capacity under the applicable 
State law to apply for and obtain treatment for drug abuse, alcoholism 
or alcohol abuse, infection with the HIV, or sickle cell anemia, any 
written consent for disclosure authorized under Sec. 1.475 of this part 
may be given only by the minor patient. This restriction includes, but 
is not limited to, any disclosure of patient identifying information to 
the parent or guardian of a minor patient for the purpose of obtaining 
financial reimbursement. Sections 1.460 through 1.499 of this part do 
not prohibit a VA facility from refusing to provide nonemergent 
treatment to an otherwise ineligible minor patient until the minor 
patient consents to the disclosure necessary to obtain reimbursement for 
services from a third party payer.
    (c) State law requiring parental consent to treatment. (1) Where 
State law requires consent of a parent, guardian, or other person for a 
minor to obtain treatment for drug abuse, alcoholism or alcohol abuse, 
infection with the HIV, or sickle cell anemia, any written consent for 
disclosure authorized under Sec. 1.475 of this part must be given by 
both the minor and his or her parent, guardian, or other person 
authorized under State law to act in the minor's behalf.
    (2) Where State law requires parental consent to treatment, the fact 
of a minor's application for treatment may be communicated to the 
minor's parent, guardian, or other person authorized under State law to 
act in the minor's behalf only if:
    (i) The minor has given written consent to the disclosure in 
accordance with Sec. 1.475 of this part; or
    (ii) The minor lacks the capacity to make a rational choice 
regarding such consent as judged by the appropriate VA facility director 
under paragraph (d) of this section.
    (d) Minor applicant for service lacks capacity for rational choice. 
Facts relevant to reducing a threat to the life or physical well being 
of the applicant or any other individual may be disclosed to the parent, 
guardian, or other person authorized under State law to act in the 
minor's behalf if the appropriate VA facility director judges that:
    (1) A minor applicant for services lacks capacity because of extreme 
youth or mental or physical condition to make a rational decision on 
whether to consent to a disclosure under Sec. 1.475 of this part to his 
or her parent, guardian, or other person authorized under State law to 
act in the minor's behalf, and
    (2) The applicant's situation poses a substantial threat to the life 
or physical well-being of the applicant or any other individual which 
may be reduced by communicating relevant facts to

[[Page 28]]

the minor's parent, guardian, or other person authorized under State law 
to act in the minor's behalf.

(Authority: 38 U.S.C. 7334)



Sec. 1.465  Incompetent and deceased patients.

    (a) Incompetent patients other than minors. In the case of a patient 
who has been adjudicated as lacking the capacity, for any reason other 
than insufficient age, to manage his or her own affairs, any consent 
which is required under Sec. Sec. 1.460 through 1.499 of this part may 
be given by a court appointed legal guardian.
    (b) Deceased patients--(1) Vital statistics. Sec. 1.460 through 
1.499 of this part do not restrict the disclosure of patient identifying 
information relating to the cause of death of a patient under laws 
requiring the collection of death or other vital statistics or 
permitting inquiry into the cause of death.
    (2) Consent by personal representative. Any other disclosure of 
information identifying a deceased patient as being treated for drug 
abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle 
cell anemia is subject to Sec. Sec. 1.460 through 1.499 of this part. 
If a written consent to the disclosure is required, the Under Secretary 
for Health or designee may, upon the prior written request of the next 
of kin, executor/executrix, administrator/administratrix, or other 
personal representative of such deceased patient, disclose the contents 
of such records, only if the Under Secretary for Health or designee 
determines such disclosure is necessary to obtain survivorship benefits 
for the deceased patient's survivor. This would include not only VA 
benefits, but also payments by the Social Security Administration, 
Worker's Compensation Boards or Commissions, or other Federal, State, or 
local government agencies, or nongovernment entities, such as life 
insurance companies.
    (3) Information related to sickle cell anemia. Information related 
to sickle cell anemia may be released to a blood relative of a deceased 
veteran for medical follow-up or family planning purposes.

(Authority: 38 U.S.C. 7332(b)(3))



Sec. 1.466  Security for records.

    (a) Written records which are subject to Sec. Sec. 1.460 through 
1.499 of this part must be maintained in a secure room, locked file 
cabinet, safe or other similar container when not in use. Access to 
information stored in computers will be limited to authorized VA 
employees who have a need for the information in performing their 
duties. These security precautions shall be consistent with the Privacy 
Act of 1974 (5 U.S.C. 552a).
    (b) Each VA facility shall adopt in writing procedures related to 
the access to and use of records which are subject to Sec. Sec. 1.460 
through 1.499 of this part.

(Authority: 38 U.S.C. 7334)



Sec. 1.467  Restrictions on the use of identification cards and public 
signs.

    (a) No facility may require any patient to carry on their person 
while away from the facility premises any card or other object which 
would identify the patient as a participant in any VA drug abuse, 
alcoholism or alcohol abuse, HIV infection, or sickle cell anemia 
treatment program. A facility may require patients to use or carry cards 
or other identification objects on the premises of a facility. Patients 
may not be required to wear clothing or colored identification bracelets 
or display objects openly to all facility staff or others which would 
identify them as being treated for drug or alcohol abuse, HIV infection, 
or sickle cell anemia.
    (b) Treatment locations should not be identified by signs that would 
identify individuals entering or exiting these locations as patients 
enrolled in a drug or alcohol abuse, HIV infection, or sickle cell 
anemia program or activity.

(Authority: 38 U.S.C. 7334)



Sec. 1.468  Relationship to Federal statutes protecting research 
subjects against compulsory disclosure of their identity.

    (a) Research privilege description. There may be concurrent coverage 
of patient identifying information by the provisions of Sec. Sec. 1.460 
through 1.499 of this part and by administrative action taken under Sec. 
303(a) of the Public

[[Page 29]]

Health Service Act (42 U.S.C. 241(d) and the implementing regulations at 
42 CFR Part 2a); or Sec. 502(c) of the Controlled Substances Act (21 
U.S.C. 872(c) and the implementing regulations at 21 CFR 1316.21). These 
``research privilege'' statutes confer on the Secretary of Health and 
Human Services and on the Attorney General, respectively, the power to 
authorize researchers conducting certain types of research to withhold 
from all persons not connected with the research the names and other 
identifying information concerning individuals who are the subjects of 
the research.
    (b) Effect of concurrent coverage. Sections 1.460 through 1.499 of 
this part restrict the disclosure and use of information about patients, 
while administrative action taken under the research privilege statutes 
and implementing regulations protects a person engaged in applicable 
research from being compelled to disclose any identifying 
characteristics of the individuals who are the subjects of that 
research. The issuance under Sec. Sec. 1.490 through 1.499 of this part 
of a court order authorizing a disclosure of information about a patient 
does not affect an exercise of authority under these research privilege 
statutes. However, the research privilege granted under 21 CFR 
291.505(g) to treatment programs using methadone for maintenance 
treatment does not protect from compulsory disclosure any information 
which is permitted to be disclosed under those regulations. Thus, if a 
court order entered in accordance with Sec. Sec. 1.490 through 1.499 of 
this part authorizes a VA facility to disclose certain information about 
its patients, the facility may not invoke the research privilege under 
21 CFR 291.505(g) as a defense to a subpoena for that information.

(Authority: 38 U.S.C. 7334)



Sec. 1.469  Patient access and restrictions on use.

    (a) Patient access not prohibited. Sections 1.460 through 1.499 of 
this part do not prohibit a facility from giving a patient access to his 
or her own records, including the opportunity to inspect and copy any 
records that VA maintains about the patient, subject to the provisions 
of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the 
patient is accompanied, giving access to the patient and the 
accompanying person will require a written consent by the patient which 
is provided in accordance with Sec. 1.475 of this part.
    (b) Restrictions on use of information. Information obtained by 
patient access to patient record is subject to the restriction on use of 
this information to initiate or substantiate any criminal charges 
against the patient or to conduct any criminal investigation of the 
patient as provided for under Sec. 1.461(d)(1) of this part.

(Authority: 38 U.S.C. 7334)



Sec. Sec. 1.470-1.474  [Reserved]

                   Disclosures With Patient's Consent



Sec. 1.475  Form of written consent.

    (a) Required elements. A written consent to a disclosure under 
Sec. Sec. 1.460 through 1.499 of this part must include:
    (1) The name of the facility permitted to make the disclosure (such 
a designation does not preclude the release of records from other VA 
health care facilities unless a restriction is stated on the consent).
    (2) The name or title of the individual or the name of the 
organization to which disclosure is to be made.
    (3) The name of the patient.
    (4) The purpose of the disclosure.
    (5) How much and what kind of information is to be disclosed.
    (6) The signature of the patient and, when required for a patient 
who is a minor, the signature of a person authorized to give consent 
under Sec. 1.464 of this part; or, when required for a patient who is 
incompetent or deceased, the signature of a person authorized to sign 
under Sec. 1.465 of this part in lieu of the patient.
    (7) The date on which the consent is signed.
    (8) A statement that the consent is subject to revocation at any 
time except to the extent that the facility which is to make the 
disclosure has already acted in reliance on it. Acting in reliance 
includes the provision of treatment services in reliance on a valid 
consent to disclose information to a third party payer.

[[Page 30]]

    (9) The date, event, or condition upon which the consent will expire 
if not revoked before. This date, event, or condition must ensure that 
the consent will last no longer than reasonably necessary to serve the 
purpose for which it is given.
    (b) Expired, deficient, or false consent. A disclosure may not be 
made on the basis of a consent which:
    (1) Has expired;
    (2) On its face substantially fails to conform to any of the 
requirements set forth in paragraph (a) of this section;
    (3) Is known to have been revoked; or
    (4) Is known, or through a reasonable effort could be known, by 
responsible personnel of VA to be materially false.
    (c) Notification of deficient consent. Other than the patient, no 
person or entity may be advised that a special consent is required in 
order to disclose information relating to an individual participating in 
a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia 
program or activity. Where a person or entity presents VA with an 
insufficient written consent for information protected by 38 U.S.C. 
7332, VA must, in the process of obtaining a legally sufficient consent, 
correspond only with the patient whose records are involved, or the 
legal guardian of an incompetent patient or next of kin of a deceased 
patient, and not with any other person.
    (d) It is not necessary to use any particular form to establish a 
consent referred to in paragraph (a) of this section, however, VA Form 
10-5345, titled Request for and Consent to Release of Medical Records 
Protected by 38 U.S.C. 7332, may be used for such purpose.

(Authority: 38 U.S.C. 7332(a)(2) and (b)(1))



Sec. 1.476  Prohibition on redisclosure.

    Each disclosure under Sec. Sec. 1.460 through 1.499 of this part 
made with the patient's written consent must be accompanied by a written 
statement similar to the following:

    This information has been disclosed to you from records protected by 
Federal confidentiality rules (38 CFR Part 1). The Federal rules 
prohibit you from making any further disclosure of this information 
unless further disclosure is expressly permitted by the written consent 
of the person to whom it pertains or as otherwise permitted by 38 CFR 
Part 1. A general authorization for the release of medical or other 
information is NOT sufficient for this purpose. The Federal rules 
restrict any use of the information to criminally investigate or 
prosecute any alcohol or drug abuse patient or patient with sickle cell 
anemia or HIV infection.

(Authority: 38 U.S.C. 7334)



Sec. 1.477  Disclosures permitted with written consent.

    If a patient consents to a disclosure of his or her records under 
Sec. 1.475 of this part, a facility may disclose those records in 
accordance with that consent to any individual or organization named in 
the consent, except that disclosures to central registries and in 
connection with criminal justice referrals must meet the requirements of 
Sec. Sec. 1.478 and 1.479 of this part, respectively.

(Authority: 38 U.S.C. 7332(b)(1))



Sec. 1.478  Disclosures to prevent multiple enrollments in detoxification 

and maintenance treatment programs; not applicable to records relating to 
sickle cell 
          anemia or infection with the human immunodeficiency virus.

    (a) Definitions. For purposes of this section:
    (1) Central registry means an organization which obtains from two or 
more member programs patient identifying information about individuals 
applying for maintenance treatment or detoxification treatment for the 
purpose of avoiding an individual's concurrent enrollment in more than 
one program.
    (2) Detoxification treatment means the dispensing of a narcotic drug 
in decreasing doses to an individual in order to reduce or eliminate 
adverse physiological or psychological effects incident to withdrawal 
from the sustained use of a narcotic drug.
    (3) Maintenance treatment means the dispensing of a narcotic drug in 
the treatment of an individual for dependence upon heroin or other 
morphine-like drugs.
    (4) Member program means a non-VA detoxification treatment or 
maintenance treatment program which reports patient identifying 
information to a central registry and which is in the same State as that 
central registry or is not more than 125 miles from any

[[Page 31]]

border of the State in which the central registry is located.
    (b) Restrictions on disclosure. VA may disclose patient records to a 
central registry which is located in the same State or is not more than 
125 miles from any border of the State or to any non-VA detoxification 
or maintenance treatment program not more than 200 miles away for the 
purpose of preventing the multiple enrollment of a patient only if:
    (1) The disclosure is made when:
    (i) The patient is accepted for treatment;
    (ii) The type or dosage of the drug is changed; or
    (iii) The treatment is interrupted, resumed or terminated.
    (2) The disclosure is limited to:
    (i) Patient identifying information;
    (ii) Type and dosage of the drug; and
    (iii) Relevant dates.
    (3) The disclosure is made with the patient's written consent 
meeting the requirements of Sec. 1.475 of this part, except that:
    (i) The consent must list the name and address of each central 
registry and each known non-VA detoxification or maintenance treatment 
program to which a disclosure will be made; and
    (ii) The consent may authorize a disclosure to any non-VA 
detoxification or maintenance treatment program established within 200 
miles after the consent is given without naming any such program.
    (c) Use of information limited to prevention of multiple 
enrollments. A central registry and any non-VA detoxification or 
maintenance treatment program to which information is disclosed to 
prevent multiple enrollments may not redisclose or use patient 
identifying information for any purpose other than the prevention of 
multiple enrollments unless authorized by a court order under Sec. Sec. 
1.490 through 1.499 of this part.

(Authority: 38 U.S.C. 7334)



Sec. 1.479  Disclosures to elements of the criminal justice system 
which have referred patients.

    (a) VA may disclose information about a patient from records covered 
by Sec. Sec. 1.460 through 1.499 of this part to those persons within 
the criminal justice system which have made participation in a VA 
treatment program a condition of the disposition of any criminal 
proceedings against the patient or of the patient's parole or other 
release from custody if:
    (1) The disclosure is made only to those individuals within the 
criminal justice system who have a need for the information in 
connection with their duty to monitor the patient's progress (e.g., a 
prosecuting attorney who is withholding charges against the patient, a 
court granting pretrial or posttrial release, probation or parole 
officers responsible for supervision of the patient); and
    (2) The patient has signed a written consent as a condition of 
admission to the treatment program meeting the requirements of Sec. 
1.475 of this part (except paragraph (a)(8) which is inconsistent with 
the revocation provisions of paragraph (c) of this section) and the 
requirements of paragraphs (b) and (c) of this section.
    (b) Duration of consent. The written consent must state the period 
during which it remains in effect. This period must be reasonable, 
taking into account:
    (1) The anticipated length of the treatment recognizing that 
revocation of consent may not generally be effected while treatment is 
ongoing;
    (2) The type of criminal proceeding involved, the need for the 
information in connection with the final disposition of that proceeding, 
and when the final disposition will occur; and
    (3) Such other factors as the facility, the patient, and the 
person(s) who will receive the disclosure consider pertinent.
    (c) Revocation of consent. The written consent must state that it is 
revocable upon the passage of a specified amount of time or the 
occurrence of a specified, ascertainable event. The time or occurrence 
upon which consent becomes revocable may be no earlier than the 
individual's completion of the treatment program and no later than the 
final disposition of the conditional release or other action in 
connection with which consent was given.
    (d) Restrictions on redisclosure and use. A person who receives 
patient information under this section may redisclose

[[Page 32]]

and use it only to carry out that person's official duties with regard 
to the patient's conditional release or other action in connection with 
which the consent was given, including parole.

(Authority: 38 U.S.C. 7334)



Sec. Sec. 1.480-1.484  [Reserved]

                   Disclosures Without Patient Consent



Sec. 1.485  Medical emergencies.

    (a) General rule. Under the procedures required by paragraph (c) of 
this section, patient identifying information from records covered by 
Sec. Sec. 1.460 through 1.499 of this part may be disclosed to medical 
personnel who have a need for information about a patient for the 
purpose of treating a condition which poses an immediate threat to the 
health of any individual and which requires immediate medical 
intervention.
    (b) Special rule. Patient identifying information may be disclosed 
to medical personnel of the Food and Drug Administration (FDA) who 
assert a reason to believe that the health of any individual may be 
threatened by an error in the manufacture, labeling, or sale of a 
product under FDA jurisdiction, and that the information will be used 
for the exclusive purpose of notifying patients or their physicians of 
potential dangers.
    (c) Procedures. Immediately following disclosure, any VA employee 
making an oral disclosure under authority of this section shall make an 
accounting of the disclosure in accordance with the Privacy Act (5 
U.S.C. 552a(c) and 38 CFR 1.576(c)) and document the disclosure in the 
patient's records setting forth in writing:
    (1) The name and address of the medical personnel to whom disclosure 
was made and their affiliation with any health care facility;
    (2) The name of the individual making the disclosure;
    (3) The date and time of the disclosure;
    (4) The nature of the emergency (or error, if the report was to 
FDA);
    (5) The information disclosed; and
    (6) The authority for making the disclosure (Sec. 1.485 of this 
part).

(Authority: 38 U.S.C. 7332(b)(2)(A))



Sec. 1.486  Disclosure of information related to infection with the 
human immunodeficiency virus to public health authorities.

    (a) In the case of any record which is maintained in connection with 
the performance of any program or activity relating to infection with 
the HIV, information may be disclosed to a Federal, State, or local 
public health authority, charged under Federal or State law with the 
protection of the public health, and to which Federal or State law 
requires disclosure of such record, if a qualified representative of 
such authority has made a written request that such record be provided 
as required pursuant to such law for a purpose authorized by such law. 
In the case of a State law, such law must, in order for VA to be able to 
release patient name and address information in accordance with 38 
U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be 
assessed against those individuals who are subject to the jurisdiction 
of the public health authority but fail to comply with the reporting 
requirements.
    (b) A person to whom a record is disclosed under this section may 
not redisclose or use such record for a purpose other than that for 
which the disclosure was made.

(Authority: 38 U.S.C. 7332(b)(2)(C))



Sec. 1.487  Disclosure of information related to infection with the 

human immunodeficiency virus to the spouse or sexual partner of the 
patient.

    (a) Subject to paragraph (b) of this section, a physician or a 
professional counselor may disclose information or records indicating 
that a patient is infected with the HIV if the disclosure is made to the 
spouse of the patient, or to an individual whom the patient has, during 
the process of professional counseling or of testing to determine 
whether the patient is infected with such virus, identified as being a 
sexual partner of such patient.
    (b) A disclosure under this section may be made only if the 
physician or

[[Page 33]]

counselor, after making reasonable efforts to counsel and encourage the 
patient to provide the information to the spouse or sexual partner, 
reasonably believes that the patient will not provide the information to 
the spouse or sexual partner and that the disclosure is necessary to 
protect the health of the spouse or sexual partner.
    (c) A disclosure under this section may be made by a physician or 
counselor other than the physician or counselor referred to in paragraph 
(b) of this section if such physician or counselor is unavailable by 
reason of extended absence or termination of employment to make the 
disclosure.

(Authority: 38 U.S.C. 7332(b))



Sec. 1.488  Research activities.

    Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the 
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584 and the following 
paragraphs, patient medical record information covered by Sec. Sec. 
1.460 through 1.499 of this part may be disclosed for the purpose of 
conducting scientific research.
    (a) Information in individually identifiable form may be disclosed 
from records covered by Sec. Sec. 1.460 through 1.499 of this part for 
the purpose of conducting scientific research if the Under Secretary for 
Health or designee makes a determination that the recipient of the 
patient identifying information:
    (1) Is qualified to conduct the research.
    (2) Has a research protocol under which the information:
    (i) Will be maintained in accordance with the security requirements 
of Sec. 1.466 of this part (or more stringent requirements); and
    (ii) Will not be redisclosed except as permitted under paragraph (b) 
of this section.
    (3) Has furnished a written statement that the research protocol has 
been reviewed by an independent group of three or more individuals who 
found that the rights of patients would be adequately protected and that 
the potential benefits of the research outweigh any potential risks to 
patient confidentiality posed by the disclosure of records.
    (b) A person conducting research may disclose information obtained 
under paragraph (a) of this section only back to VA and may not identify 
any individual patient in any report of that research or otherwise 
disclose patient identities.

(Authority: 38 U.S.C. 7332(b)(2)(B))



Sec. 1.489  Audit and evaluation activities.

    Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the 
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584, and the following 
paragraphs, patient medical records covered by Sec. Sec. 1.460 through 
1.499 of this part may be disclosed outside VA for the purposes of 
conducting audit and evaluation activities.
    (a) Records not copies. If patient records covered by Sec. Sec. 
1.460 through 1.499 of this part are not copied, patient identifying 
information may be disclosed in the course of a review of records on VA 
facility premises to any person who agrees in writing to comply with the 
limitations on redisclosure and use in paragraph (d) of this section 
and:
    (1) Where audit or evaluation functions are performed by a State or 
Federal governmental agency on behalf of VA; or
    (2) Who is determined by the VA facility director to be qualified to 
conduct the audit or evaluation activities.
    (b) Copying of records. Records containing patient identifying 
information may be copied by any person who:
    (1) Agrees in writing to:
    (i) Maintain the patient identifying information in accordance with 
the security requirements provided in Sec. 1.466 of this part (or more 
stringent requirements);
    (ii) Destroy all the patient identifying information upon completion 
of the audit or evaluation; and
    (iii) Comply with the limitations on disclosure and use in paragraph 
(d) of this section.
    (2) The VA medical facility director determines to be qualified to 
conduct the audit or evaluation activities.
    (c) Congressional oversight. Records subject to Sec. Sec. 1.460 
through 1.499 of this part upon written request may be released to 
congressional committees or subcommittees for program oversight and 
evaluation if such records pertain to any matter within the jurisdiction 
of such committee or subcommittee.

[[Page 34]]

    (d) Limitation on disclosure and use. Records containing patient 
identifying information disclosed under this section may be disclosed 
only back to VA and used only to carry out an audit or evaluation 
purpose, or, to investigate or prosecute criminal or other activities as 
authorized by a court order entered under Sec. 1.494 of this part.

(Authority: 38 U.S.C. 7332(b)(2)(B))

              Court Orders Authorizing Disclosures and Use



Sec. 1.490  Legal effect of order.

    The records to which Sec. Sec. 1.460 through 1.499 of this part 
apply may be disclosed if authorized by an appropriate order of a court 
of competent jurisdiction granted after application showing good cause 
therefore. In assessing good cause the court is statutorily required to 
weigh the public interest and the need for disclosure against the injury 
to the patient or subject, to the physician-patient relationship, and to 
the treatment services. Upon the granting of such order, the court, in 
determining the extent to which any disclosure of all or any part of any 
record is necessary, is required by statute to impose appropriate 
safeguards against unauthorized disclosure. An order of a court of 
competent jurisdiction to produce records subject to Sec. Sec. 1.460 
through 1.499 of this part will not be sufficient unless the order 
reflects that the court has complied with the requirements of 38 U.S.C. 
7332(b)(2)(D). Such an order from a Federal court compels disclosure. 
However, such an order from a State court only acts to authorize the 
Secretary to exercise discretion pursuant to 38 U.S.C. 5701(b)(5) and 38 
CFR 1.511 to disclose such records. It does not compel disclosure.

(Authority: 38 U.S.C. 7332(b)(2)(D))



Sec. 1.491  Confidential communications.

    (a) A court order under Sec. Sec. 1.490 through 1.499 of this part 
may authorize disclosure of confidential communications made by a 
patient to a treatment program in the course of diagnosis, treatment, or 
referral for treatment only if:
    (1) The disclosure is necessary to protect against an existing 
threat to life or of serious bodily injury, including circumstances 
which constitute suspected child abuse and neglect and verbal threats 
against third parties;
    (2) The disclosure is necessary in connection with investigation or 
prosecution of an extremely serious crime, such as one which directly 
threatens loss of life or serious bodily injury, including homicide, 
rape, kidnapping, armed robbery, assault with a deadly weapon, or child 
abuse and neglect; or
    (3) The disclosure is in connection with litigation or an 
administrative proceeding in which the patient offers testimony or other 
evidence pertaining to the content of the confidential communications.
    (b) [Reserved]

(Authority: 38 U.S.C. 7334)



Sec. 1.492  Order not applicable to records disclosed without consent 
to researchers, auditors and evaluators.

    A court order under Sec. Sec. 1.460 through 1.499 of this part may 
not authorize qualified personnel, who have received patient identifying 
information from VA without consent for the purpose of conducting 
research, audit or evaluation, to disclose that information or use it to 
conduct any criminal investigation or prosecution of a patient. However, 
a court order under Sec. 1.495 of this part may authorize disclosure 
and use of records to investigate or prosecute VA personnel.

(Authority: 38 U.S.C. 7334)



Sec. 1.493  Procedures and criteria for orders authorizing disclosures 
for noncriminal purposes.

    (a) Application. An order authorizing the disclosure of patient 
records covered by Sec. Sec. 1.460 through 1.499 of this part for 
purposes other than criminal investigation or prosecution may be applied 
for by any person having a legally recognized interest in the disclosure 
which is sought. The application may be filed separately or as part of a 
pending civil action in which it appears that the patient records are 
needed to provide evidence. An application must use a fictitious name, 
such as John Doe, to refer to any patient and may not contain or 
otherwise disclose any patient identifying information unless the 
patient is the applicant or has

[[Page 35]]

given a written consent (meeting the requirements of Sec. 1.475 of this 
part) to disclosure or the court has ordered the record of the 
proceeding sealed from public scrutiny.
    (b) Notice. The patient and VA facility from whom disclosure is 
sought must be given:
    (1) Adequate notice in a manner which will not disclose patient 
identifying information to other persons; and
    (2) An opportunity to file a written response to the application, or 
to appear in person, for the limited purpose of providing evidence on 
whether the statutory and regulatory criteria for the issuance of the 
court order are met.
    (c) Review of evidence: Conduct of hearing. Any oral argument, 
review of evidence, or hearing on the application must be held in the 
judge's chambers or in some manner which ensures that patient 
identifying information is not disclosed to anyone other than a party to 
the proceeding, the patient, or VA, unless the patient requests an open 
hearing in a manner which meets the written consent requirements of 
Sec. 1.475 of this part. The proceeding may include an examination by 
the judge of the patient records referred to in the application.
    (d) Criteria for entry of order. An order under this section may be 
entered only if the court determines that good cause exists. To make 
this determination the court must find that:
    (1) Other ways of obtaining the information are not available or 
would not be effective; and
    (2) The public interest and need for the disclosure outweigh the 
potential injury to the patient, the physician-patient relationship and 
the treatment services.
    (e) Content of order. An order authorizing a disclosure must:
    (1) Limit disclosure to those parts of the patient's record which 
are essential to fulfill the objective of the order;
    (2) Limit disclosure to those persons whose need for information is 
the basis for the order; and
    (3) Include such other measures as are necessary to limit disclosure 
for the protection of the patient, the physician-patient relationship 
and the treatment services; for example, sealing from public scrutiny 
the record of any proceeding for which disclosure of a patient's record 
has been ordered.

(Authority: 38 U.S.C. 7334)



Sec. 1.494  Procedures and criteria for orders authorizing disclosure 
and use of records to criminally investigate or prosecute patients.

    (a) Application. An order authorizing the disclosure or use of 
patient records covered by Sec. Sec. 1.460 through 1.499 of this part 
to criminally investigate or prosecute a patient may be applied for by 
VA or by any person conducting investigative or prosecutorial activities 
with respect to the enforcement of criminal laws. The application may be 
filed separately, as part of an application for a subpoena or other 
compulsory process, or in a pending criminal action. An application must 
use a fictitious name such as John Doe, to refer to any patient and may 
not contain or otherwise disclose patient identifying information unless 
the court has ordered the record of the proceeding sealed from public 
scrutiny.
    (b) Notice and hearing. Unless an order under Sec. 1.495 of this 
part is sought with an order under this section, VA must be given:
    (1) Adequate notice (in a manner which will not disclose patient 
identifying information to third parties) of an application by a person 
performing a law enforcement function;
    (2) An opportunity to appear and be heard for the limited purpose of 
providing evidence on the statutory and regulatory criteria for the 
issuance of the court order; and
    (3) An opportunity to be represented by counsel.
    (c) Review of evidence: Conduct of hearings. Any oral argument, 
review of evidence, or hearing on the application shall be held in the 
judge's chambers or in some other manner which ensures that patient 
identifying information is not disclosed to anyone other than a party to 
the proceedings, the patient, or VA. The proceeding may include an 
examination by the judge of the patient records referred to in the 
application.
    (d) Criteria. A court may authorize the disclosure and use of 
patient records for the purpose of conducting a criminal investigation 
or prosecution

[[Page 36]]

of a patient only if the court finds that all of the following criteria 
are met:
    (1) The crime involved is extremely serious, such as one which 
causes or directly threatens loss of life or serious bodily injury 
including, but not limited to, homicide, rape, kidnapping, armed 
robbery, assault with a deadly weapon, and child abuse and neglect.
    (2) There is a reasonable likelihood that the records will disclose 
information of substantial value in the investigation or prosecution.
    (3) Other ways of obtaining the information are not available or 
would not be effective.
    (4) The potential injury to the patient, to the physician-patient 
relationship and to the ability of VA to provide services to other 
patients is outweighed by the public interest and the need for the 
disclosure.
    (5) If the applicant is a person performing a law enforcement 
function, VA has been represented by counsel independent of the 
applicant.
    (e) Content of order. Any order authorizing a disclosure or use of 
patient records under this section must:
    (1) Limit disclosure and use to those parts of the patient's record 
which are essential to fulfill the objective of the order;
    (2) Limit disclosure to those law enforcement and prosecutorial 
officials who are responsible for, or are conducting, the investigation 
or prosecution, and limit their use of the records to investigation and 
prosecution of extremely serious crime or suspected crime specified in 
the applications; and
    (3) Include such other measures as are necessary to limit disclosure 
and use to the fulfillment on only that public interest and need found 
by the court.

(Authority: 38 U.S.C. 7332(c))



Sec. 1.495  Procedures and criteria for orders authorizing disclosure 
and use of records to investigate or prosecute VA or employees of VA.

    (a) Application. (1) An order authorizing the disclosure or use of 
patient records covered by Sec. Sec. 1.460 through 1.499 of this part 
to criminally or administratively investigate or prosecute VA (or 
employees or agents of VA) may be applied for by an administrative, 
regulatory, supervisory, investigative, law enforcement, or 
prosecutorial agency having jurisdiction over VA activities.
    (2) The application may be filed separately or as part of a pending 
civil or criminal action against VA (or agents or employees of VA) in 
which it appears that the patient records are needed to provide material 
evidence. The application must use a fictitious name, such as John Doe, 
to refer to any patient and may not contain or otherwise disclose any 
patient identifying information unless the court has ordered the record 
of the proceeding sealed from public scrutiny or the patient has given a 
written consent (meeting the requirements of Sec. 1.475 of this part) 
to that disclosure.
    (b) Notice not required. An application under this section may, in 
the discretion of the court, be granted without notice. Although no 
express notice is required to VA or to any patient whose records are to 
be disclosed, upon implementation of an order so granted VA or the 
patient must be afforded an opportunity to seek revocation or amendment 
of that order, limited to the presentation of evidence on the statutory 
and regulatory criteria for the issuance of the court order.
    (c) Requirements for order. An order under this section must be 
entered in accordance with, and comply with the requirements of, Sec. 
1.493(d) and (e) of this part.
    (d) Limitations on disclosure and use of patient identifying 
information. (1) An order entered under this section must require the 
deletion of patient identifying information from any documents made 
available to the public.
    (2) No information obtained under this section may be used to 
conduct any investigation or prosecution of a patient, or be used as the 
basis for an application for an order under Sec. 1.494 of this part.

(Authority: 38 U.S.C. 7334)



Sec. 1.496  Orders authorizing the use of undercover agents and 
informants to criminally investigate employees or agents of VA.

    (a) Application. A court order authorizing the placement of an 
undercover agent or informant in a VA drug or alcohol abuse, HIV 
infection, or sickle

[[Page 37]]

cell anemia treatment program as an employee or patient may be applied 
for by any law enforcement or prosecutorial agency which has reason to 
believe that employees or agents of the VA treatment program are engaged 
in criminal misconduct.
    (b) Notice. The VA facility director must be given adequate notice 
of the application and an opportunity to appear and be heard (for the 
limited purpose of providing evidence on the statutory and regulatory 
criteria for the issuance of the court order), unless the application 
asserts a belief that:
    (1) The VA facility director is involved in the criminal activities 
to be investigated by the undercover agent or informant; or
    (2) The VA facility director will intentionally or unintentionally 
disclose the proposed placement of an undercover agent or informant to 
the employees or agents who are suspected of criminal activities.
    (c) Criteria. An order under this section may be entered only if the 
court determines that good cause exists. To make this determination the 
court must find:
    (1) There is reason to believe that an employee or agent of a VA 
treatment program is engaged in criminal activity;
    (2) Other ways of obtaining evidence of this criminal activity are 
not available or would not be effective; and
    (3) The public interest and need for the placement of an undercover 
agent or informant in the VA treatment program outweigh the potential 
injury to patients of the program, physician-patient relationships and 
the treatment services.
    (d) Content of order. An order authorizing the placement of an 
undercover agent or informant in a VA treatment program must:
    (1) Specifically authorize the placement of an undercover agent or 
an informant;
    (2) Limit the total period of the placement to six months;
    (3) Prohibit the undercover agent or informant from disclosing any 
patient identifying information obtained from the placement except as 
necessary to criminally investigate or prosecute employees or agents of 
the VA treatment program; and
    (4) Include any other measures which are appropriate to limit any 
potential disruption of the program by the placement and any potential 
for a real or apparent breach of patient confidentiality; for example, 
sealing from public scrutiny the record of any proceeding for which 
disclosure of a patient's record has been ordered.
    (e) Limitation on use of information. No information obtained by an 
undercover agent or informant placed under this section may be used to 
criminally investigate or prosecute any patient or as the basis for an 
application for an order under Sec. 1.494 of this part.

(Authority: 38 U.S.C. 7334)



Sec. Sec. 1.497-1.499  [Reserved]

  Release of Information From Department of Veterans Affairs Claimant 
                                 Records

    Note: Sections 1.500 through 1.527 concern the availability and 
release of information from files, records, reports, and other papers 
and documents in Department of Veterans Affairs custody pertaining to 
claims under any of the laws administered by the Department of Veterans 
Affairs. As to the release of information from Department of Veterans 
Affairs records other than claimant records, see Sec. Sec. 1.550 
through 1.558. Sections 1.500 through 1.526 implement the provisions of 
38 U.S.C. 5701, 5702.

[32 FR 10848, July 25, 1967]

    Authority: Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236, 
as amended; 38 U.S.C. 501, 5701.



Sec. 1.500  General.

    (a) Files, records, reports, and other papers and documents 
pertaining to any claim filed with the Department of Veterans Affairs, 
whether pending or adjudicated, and the names and addresses of present 
or former personnel of the armed services, and their dependents, in the 
possession of the Department of Veterans Affairs, will be deemed 
confidential and privileged, and no disclosure therefrom will be made 
except in the circumstances and under the conditions set forth in 
Sec. Sec. 1.501 through 1.526.
    (b) A claimant may not have access to or custody of official 
Department of

[[Page 38]]

Veterans Affairs records concerning himself or herself nor may a 
claimant inspect records concerning himself or herself. Disclosure of 
information from Department of Veterans Affairs records to a claimant or 
his or her duly authorized agent or representative may be made, however, 
under the provisions of Sec. Sec. 1.501 through 1.526.
    (c) Each administration, staff office, and field facility head will 
designate an employee(s) who will be responsible for initial action on 
(granting or denying) requests to inspect or obtain information from or 
copies of records under their jurisdiction and within the purview of 
Sec. Sec. 1.501 through 1.526 unless the regulations in this part 
currently contain such designations. The request should be made to the 
office concerned (having jurisdiction of the record desired) or, if not 
known, to the Director or Veterans Assistance Officer in the nearest VA 
regional office, or to the VA Central Office, 810 Vermont Avenue NW., 
Washington, DC 20420. Personal contacts should normally be made during 
the regular duty hours of the office concerned, which are 8 a.m. to 4:30 
p.m., Monday through Friday, for VA Central Office and most field 
facilities. Any legal question arising in a field facility concerning 
the release of information will be referred to the appropriate Regional 
Counsel for disposition as contemplated by Sec. 13.401 of this chapter. 
In central office such legal questions will be referred to the General 
Counsel. Any administrative question will be referred through 
administrative channels to the appropriate administration or staff 
office head.
    (d) Upon denial of a request under paragraph (c) of this section, 
the responsible Department of Veterans Affairs official or designated 
employee will inform the requester in writing of the denial and advise 
him or her that he or she may appeal the denial. The requester will also 
be furnished the title and address of the Department of Veterans Affairs 
official to whom the appeal should be addressed. (See Sec. 1.527.) In 
each instance of denial of a request, the denial will be made a matter 
of record and the record will contain a citation to the specific 
provision of Department of Veterans Affairs regulations upon which the 
denial is based.

[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38 
FR 15601, June 14, 1973]



Sec. 1.501  Release of information by the Secretary.

    The Secretary of Veterans Affairs or the Deputy Secretary may 
release information, statistics, or reports to individuals or 
organizations when in the Secretary's or Deputy Secretary's judgment 
such release would serve a useful purpose.

[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]



Sec. 1.502  Disclosure of the amount of monetary benefits.

    The monthly rate of pension, compensation, dependency and indemnity 
compensation, retirement pay, subsistence allowance, or educational 
assistance allowance of any beneficiary shall be made known to any 
person who applies for such information.

[32 FR 10848, July 25, 1967]



Sec. 1.503  Disclosure of information to a veteran or his or her duly 
authorized representative as to matters concerning the veteran alone.

    Information may be disclosed to a veteran or his or her duly 
authorized representative as to matters concerning himself or herself 
alone when such disclosure would not be injurious to the physical or 
mental health of the veteran. If the veteran be deceased, matters 
concerning him or her may be disclosed to his widow, children, or next 
of kin if such disclosure will not be injurious to the physical or 
mental health of the person in whose behalf information is sought or 
cause repugnance or resentment toward the decedent.

[13 FR 6999, Nov. 27, 1948]



Sec. 1.504  Disclosure of information to a widow, child, or other 
claimant.

    Information may be disclosed to a widow, widower, child, or other 
dependent parent or other claimant, or the duly authorized 
representative of any of these persons as to matters concerning such 
person alone when such disclosure will not be injurious to the

[[Page 39]]

physical or mental health of the person to whom the inquiry relates. If 
the person concerning whom the information is sought is deceased, 
matters concerning such person may be disclosed to the next of kin if 
the disclosures will not be injurious to the physical or mental health 
of the person in whose behalf the information is sought or cause 
repugnance or resentment toward the decedent.

[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]



Sec. 1.505  Genealogy.

    Information of a genealogical nature when its disclosure will not be 
detrimental to the memory of the veteran and not prejudicial, so far as 
may be apparent, to the interests of any living person or to the 
interests of the Government may be released by the Department of 
Veterans Affairs or in the case of inactive records may be released by 
the Archivist of the United States if in the Archivist's custody.

[13 FR 6999, Nov. 27, 1948]



Sec. 1.506  Disclosure of records to Federal Government departments, 

State unemployment compensation agencies, and the Office of 
Servicemembers' Group Life 
          Insurance.

    (a) All records or documents required for official purposes by any 
department or other agency of the U.S. Government or any state 
unemployment compensation agency acting in an official capacity for the 
Department of Veterans Affairs shall be furnished in response to an 
official request, written, or oral, from such department or agency. If 
the requesting department or agency does not indicate the purpose for 
which the records or documents are requested and there is doubt as to 
whether they are to be used for official purposes, the requesting 
department or agency will be asked to specify the purpose for which they 
are to be used.
    (b) The Under Secretary for Benefits, Director of Insurance Service, 
or designee of either in Central Office, is authorized to release 
information to OSGLI (Office of Servicemembers' Group Life Insurance) 
for the purpose of aiding in the settlement of a particular insurance 
case.

[33 FR 2994, Feb. 15, 1968]



Sec. 1.507  Disclosures to members of Congress.

    Members of Congress shall be furnished in their official capacity in 
any case such information contained in the Department of Veterans 
Affairs files as may be requested for official use. However, in any 
unusual case, the request will be presented to the Secretary, Deputy 
Secretary, or staff or administration head for personal action. When the 
requested information is of a type which may not be furnished a 
claimant, the member of Congress shall be advised that the information 
is furnished to him or her confidentially in his official capacity and 
should be so treated by him or her. (See 38 U.S.C. 5701.) Information 
concerning the beneficiary designation of a United States Government 
Life Insurance or National Service Life Insurance policy is deemed 
confidential and privileged and during the insured's lifetime shall not 
be disclosed to anyone other than the insured or his or her duly 
appointed fiduciary unless the insured or the fiduciary authorizes the 
release of such information.

[32 FR 10848, July 25, 1967]



Sec. 1.508  Disclosure in cases where claimants are charged with or 
convicted of criminal offenses.

    (a) Where incompetent claimants are charged with, or convicted of, 
offenses other than those growing out of their relationship with the 
Department of Veterans Affairs and in which it is desired to disclose 
information from the files and records of the Department of Veterans 
Affairs, the Regional Counsel, Under Secretary for Benefits, Veterans 
Benefits Administration, or the General Counsel if the General Counsel 
deems it necessary and proper, may disclose to the court having 
jurisdiction so much of the information from the files and records of 
the Department of Veterans Affairs relating to the mental condition of 
such beneficiaries, the same to be available as evidence, as may be 
necessary to show the mental condition of the accused and the time

[[Page 40]]

of its onset. This provision, however, does not alter the general 
procedure for handling offenses growing out of relations with the 
Department of Veterans Affairs.
    (b) When desired by a U.S. district court, the Regional Counsel or 
the General Counsel may supply information as to whether any person 
charged with crime served in the military or naval service of the United 
States and whether the Department of Veterans Affairs has a file on such 
person. If the file is desired either by the court or by the prosecution 
or defense, it may be produced only in accord with Sec. Sec. 1.501 
through 1.526.

[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967; 
54 FR 34980, Aug. 23, 1989]



Sec. 1.509  Disclosure to courts in proceedings in the nature of an 
inquest.

    The Under Secretary for Benefits, Veterans Benefits Administration, 
Regional Counsels, and facility heads are authorized to make disclosures 
to courts of competent jurisdiction of such files, records, reports, and 
other documents as are necessary and proper evidence in proceedings in 
the nature of an inquest into the mental competency of claimants and 
other proceedings incident to the appointment and discharge of 
guardians, curators, or conservators to any court having jurisdiction of 
such fiduciaries in all matters of appointment, discharge, or accounting 
in such courts.

[32 FR 10848, July 25, 1967]



Sec. 1.510  Disclosure to insurance companies cooperating with the 

Department of Justice in the defense of insurance suits against the 
United States.

    Copies of records from the files of the Department of Veterans 
Affairs will, in the event of litigation involving commercial insurance 
policies issued by an insurance company cooperating with the Department 
of Justice in defense of insurance suits against the United States, be 
furnished to such companies without charge, provided the claimant or his 
or her duly authorized representative has authorized the release of the 
information contained in such records. If the release of information is 
not authorized in writing by the claimant or his or her duly authorized 
representative, information contained in the files may be furnished to 
such company if to withhold same would tend to permit the accomplishment 
of a fraud or miscarriage of justice. However, before such information 
may be released without the consent of the claimant, the request 
therefor must be accompanied by an affidavit of the representative of 
the insurance company, setting forth that litigation is pending, the 
character of the suit, and the purpose for which the information desired 
is to be used. If such information is to be used adversely to the 
claimant, the affidavit must set forth facts from which it may be 
determined by the General Counsel or Regional Counsel whether the 
furnishing of the information is necessary to prevent the perpetration 
of a fraud or other injustice. The averments contained in such affidavit 
should be considered in connection with the facts shown by the 
claimant's file, and, if such consideration shows the disclosure of the 
record is necessary and proper to prevent a fraud or other injustice, 
information as to the contents thereof may be furnished to the insurance 
company or copies of the records may be furnished to the court, 
workmen's compensation, or similar board in which the litigation is 
pending upon receipt of a subpoena duces tecum addressed to the 
Secretary of Veterans Affairs, or the head of the office in which the 
records desired are located. In the event the subpoena requires the 
production of the file, as distinguished from the copies of the records, 
no expense to the Department of Veterans Affairs may be involved in 
complying therewith, and arrangements must be made with the 
representative of the insurance company causing the issuance of the 
subpoena to insure submission of the file to the court without expense 
to the Department of Veterans Affairs.

[32 FR 10848, July 25, 1967]



Sec. 1.511  Disclosure of claimant records in connection with judicial 
proceedings generally.

    (a)(1) Where a suit (or legal proceeding) has been threatened or 
instituted against the Government, or a

[[Page 41]]

prosecution against a claimant has been instituted or is being 
contemplated, the request of the claimant or his or her duly authorized 
representative for information, documents, reports, etc., shall be acted 
upon by the General Counsel in Central Office, or the Regional Counsel 
for the field facility, who shall determine the action to be taken with 
respect thereto. Where the records have been sent to the Department of 
Justice in connection with any such suit (or legal proceeding), the 
request will be referred to the Department of Justice, Washington, DC, 
through the office of the General Counsel, for attention. Where the 
records have been sent to an Assistant U.S. Attorney, the request will 
be referred by the appropriate Regional Counsel to the Assistant U.S. 
Attorney. In all other cases where copies of documents or records are 
desired by or on behalf of parties to a suit (or legal proceeding), 
whether in a Federal court or any other, such copies shall be disclosed 
as provided in paragraphs (b) and (c) of this section where the request 
is accompanied by court process, or paragraph (e) of this section where 
the request is not accompanied by court process. A court process, such 
as a court order or subpoena duces tecum should be addressed to either 
the Secretary of Veterans Affairs or to the head of the field facility 
at which the records desired are located. The determination as to the 
action to be taken upon any request for the disclosure of claimant 
records received in this class of cases shall be made by the component 
having jurisdiction over the subject matter in Central Office, or the 
division having jurisdiction over the subject matter in the field 
facility, except in those cases in which representatives of the 
component or division have determined that the records desired are to be 
used adversely to the claimant, in which event the process will be 
referred to the General Counsel in Central Office or to the Regional 
Counsel for the field facility for disposition.
    (2) Where a claim under the provisions of the Federal Tort Claims 
Act has been filed, or where such a claim can reasonably be anticipated, 
no information, documents, reports, etc., will be disclosed except 
through the Regional Counsel having jurisdiction, who will limit the 
disclosure of information to that which would be available under 
discovery proceedings, if the matter were in litigation. Any other 
information may be disclosed only after concurrence in such disclosure 
is provided by the General Counsel.
    (b) Disclosures in response to Federal court process--(1) Court 
order. Except for drug and alcohol abuse, human immunodeficiency virus 
and sickle cell anemia treatment records, which are protected under 38 
U.S.C. 7332, where the records sought are maintained in a VA Privacy Act 
system of records, and are retrieved by the name or other personal 
identifier of a living claimant who is a citizen of the United States or 
an alien lawfully admitted for permanent residence, a Federal court 
order is the process necessary for the disclosure of such records. Upon 
receipt of a Federal court order directing disclosure of claimant 
records, such records will be disclosed. Disclosure of records protected 
under 38 U.S.C. 7332 will be made in accordance with provisions of 
paragraph (g) of this section.
    (2) Subpoena. Except for drug and alcohol abuse, human 
immunodeficiency virus and sickle cell anemia treatment records, which 
are protected under 38 U.S.C. 7332, where the records sought are 
maintained in a VA Privacy Act system of records, and are retrieved by 
the name or other personal identifier of a claimant, a subpoena is not 
sufficient authority for the disclosure of such records and such records 
will not be disclosed, unless the claimant is deceased, or either is not 
a citizen of the United States, or is an alien not lawfully admitted for 
permanent residence. Where one of these exceptions applies, upon receipt 
of a Federal court subpoena, such records will be disclosed. 
Additionally, where the subpoena is accompanied by authorization from 
the claimant, disclosure will be made. Regarding the disclosure of 
medical records pertaining to drug and alcohol abuse, human 
immunodeficiency virus and sickle cell anemia treatment, a subpoena is 
insufficient for such disclosure. Specific provisions for the disclosure 
of these records are set forth in paragraph (g) of this section.

[[Page 42]]

    (3) A disclosure of records in response to the receipt of a Federal 
court process will be made to those individuals designated in the 
process to receive such records, or to the court from which the process 
issued. Where original records are produced, they must remain at all 
times in the custody of a representative of the Department of Veterans 
Affairs, and, if offered and received in evidence, permission should be 
obtained to substitute a copy so that the original may remain intact in 
the record. Where a court process is issued by or on behalf of a party 
litigant other than the United States, such party litigant must prepay 
the costs of copies in accordance with fees prescribed by Sec. 1.526(i) 
and any other costs incident to producing the records.
    (c) Disclosures in response to state or local court processs--(1) 
State or local court order. Except for drug and alcohol abuse, human 
immunodeficiency virus and sickle cell anemia treatment records, which 
are protected under 38 U.S.C. 7332, where the records sought are 
maintained in a VA Privacy Act system of records, and are retrieved by 
the name or other personal identifier of a living claimant who is a 
citizen of the United States or an alien lawfully admitted for permanent 
residence, a State or local court order is the process necessary for 
disclosure of such records. Upon receipt of a State or local court order 
directing disclosure of claimant records, disclosure of such records 
will be made in accordance with the provisions set forth in paragraph 
(c)(3) of this section. Disclosure of records protected under 38 U.S.C. 
7332 will be made in accordance with provisions of paragraph (g) of this 
section.
    (2) State or local court subpoena. Except for drug and alcohol 
abuse, human immunodeficiency virus and sickle cell anemia treatment 
records, which are protected under 38 U.S.C. 7332, where the records 
sought are maintained in a VA Privacy Act system of records, and are 
retrieved by the name or other personal identifier of a claimant, a 
subpoena is not sufficient authority for disclosure of such records and 
such records will not be disclosed unless the claimant is deceased, or, 
either is not a citizen of the United States, or is an alien not 
lawfully admitted for permanent residence. Where one of these exceptions 
applies, upon receipt of a State or local court subpoena directing 
disclosure of claimant records, disclosure of such records will be made 
in accordance with the provisions set forth in paragraph (c)(3), of this 
section. Regarding the disclosure of 7332 records, a subpoena is 
insufficient for such disclosure. Specific provisions for the disclosure 
of these records are set forth in paragraph (g) of this section.
    (3) Where the disclosure provisions of paragraph (c) (1) or (2) of 
this section apply, disclosure will be made as follows:
    (i) When the process presented is accompanied by authority from the 
claimant; or,
    (ii) In the absence of claimant disclosure authority, the Regional 
Counsel having jurisdiction must determine whether the disclosure of the 
records is necessary to prevent the perpetration of fraud or other 
injustice in the matter in question. To make such a determination, the 
Regional Counsel may require such additional documentation, e.g., 
affidavit, letter of explanation, or such other documentation which 
would detail the need for such disclosure, set forth the character of 
the pending suit, and the purpose for which the documents or records 
sought are to be used as evidence. The claimant's record may also be 
considered in the making of such determination. Where a court process is 
received, and the Regional Counsel finds that additional documentation 
will be needed to make the foregoing determination, the Regional 
Counsel, or other employee having reasonable knowledge of the 
requirements of this regulation, shall contact the person causing the 
issuance of such court process, and advise that person of the need for 
additional documentation. Where a court appearance is appropriate, and 
the Regional Counsel has found that there is an insufficient basis upon 
which to warrant a disclosure of the requested information, the Regional 
Counsel, or other employee having reasonable knowledge of the 
requirement of this regulation and having consulted with the Regional 
Counsel, shall appear in court and advise

[[Page 43]]

the court that VA records are confidential and privileged and may be 
disclosed only in accordance with applicable Federal regulations, and to 
further advise the court of such regulatory requirements and how they 
have not been satisified. Where indicated, the Regional Counsel will 
take appropriate action to have the matter of disclosure of the affected 
records removed to Federal court.
    (4) Any disclosure of records in response to the receipt of State or 
local court process will be made to those individuals designated in the 
process to receive such records, or to the court from which such process 
issued. Payment of the fees as prescribed by Sec. 1.526(i), as well as 
any other cost incident to producing the records, must first be 
deposited with the Department of Veterans Affairs by the party who 
caused the process to be issued. The original records must remain at all 
times in the custody of a representative of the Department of Veterans 
Affairs, and, if there is an offer and admission of any record or 
document contained therein, permission should be obtained to substitute 
a copy so that the original may remain intact in the record.
    (d) Notice requirements where disclosures are made pursuant to court 
process. Whenever a disclosure of Privacy Act protected records is made 
in response to the process of a Federal, State, or local court, the 
custodian of the records disclosed will make reasonable efforts to 
notify the subject of such records that such subject's records were 
disclosed to another person under compulsory legal process. Such notice 
should be accomplished when the process compelling disclosure becomes a 
matter of public record. Generally, a notice sent to the last known 
address of the subject would be sufficient to comply with this 
requirement.
    (e) Disclosures in response to requests when not accompanied by 
court process. Requests received from attorneys or others for copies of 
records for use in suits in which the Government is not involved, not 
accompanied by a court process, will be handled by the component or 
division having jurisdiction over the subject matter. If the request can 
be complied with under Sec. 1.503 or Sec. 1.504, and under the Privacy 
Act (to the extent that such records are protected by the Privacy Act), 
the records requested will be disclosed upon receipt of the required 
fee. If, however, the records cannot be furnished under such authority, 
the applicant will be advised of the procedure to obtain copies of 
records as set forth in paragraphs (b) and (c) of this section.
    (f) Suits by or against the Secretary under 38 U.S.C. 3720. Records 
pertaining to the loan guaranteed, insured, or made by the Department of 
Veterans Affairs may be made available by the General Counsel or the 
Regional Counsel subject to the usual rules of evidence, and where 
authorized under the Privacy Act, after clearance with the Department of 
Justice or U.S. Attorney if appropriate.
    (g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency 
virus and sickle cell anemia treatment or related records under court 
process. Disclosure of these types of records, which are protected from 
unauthorized disclosure under 38 U.S.C. 7332, may be made only in 
response to an appropriate order of a court of competent jurisdiction 
granted after application showing good cause therefore. In assessing 
good cause the court is required to weigh the public interest and the 
need for disclosure against the injury to the patient or subject, to the 
physician-patient relationship, and to the treatment services. The 
court, in determining the extent to which any disclosure of all or any 
part of any record is necessary, shall impose appropriate safeguards 
against unauthorized disclosure. As to a Federal court order satisfying 
the requirements of this paragraph, the records will be disclosed as 
provided in such order. As to a State or local court order satisfying 
the requirements of this subsection, the disclosure of the records 
involved is conditioned upon satisfying the provisions set forth in 
paragraph (c)(3) of this section. If the aforementioned section is 
satisfied, and a disclosure of records is to be forthcoming, the records 
will be

[[Page 44]]

disclosed as provided in the court order.

(Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C. 
7332)

[56 FR 15833, Apr. 18, 1991]



Sec. 1.512  Disclosure of loan guaranty information.

    (a) The disclosure of records or information contained in loan 
guaranty files is governed by the Freedom of Information Act, 5 U.S.C. 
552; the Privacy Act, 5 U.S.C. 552a; the confidentiality provisions of 
38 U.S.C. 5701, and the provisions of 38 CFR 1.500-1.584. In addition, 
the release of names and addresses and the release of certificates of 
reasonable value, appraisal reports, property inspection reports, or 
reports of inspection on individual water supply and sewage disposal 
systems shall be governed by paragraphs (b), (c), (d), and (e) of this 
section.
    (b)(1) Upon request, any person is entitled to obtain copies of 
certificates of reasonable value, appraisal reports, property inspection 
reports, or reports of inspection on individual water supply and sewage 
disposal systems provided that the individual identifiers of the 
veteran-purchaser(s) or dependents are deleted prior to release of such 
documents. However, individual identifiers may be disclosed in 
accordance with paragraph (b)(2) of this section. The address of the 
property being appraised or inspected shall not be considered an 
individual identifier.


(Authority: 38 U.S.C. 5701(a), (c))

    (2) Individual identifiers of veteran purchasers or dependents may 
be disclosed when disclosure is made to the following:
    (i) The individual purchasing the property;
    (ii) The current owner of the property;
    (iii) The individual that requested the appraisal or report;
    (iv) A person or entity which is considering making a loan to an 
individual with respect to the property concerned; or
    (v) An attorney, real estate broker, or any other agent representing 
any of these persons.


(Authority: 38 U.S.C. 5701(c), (h)(2)(D))

    (c)(1) The Secretary may release the name, address, or both, and may 
release other information relating to the identity of an applicant for 
or recipient of a Department of Veterans Affairs-guaranteed, insured, or 
direct loan, specially adapted housing grant, loan to finance 
acquisition of Department of Veterans Affairs-owned property, release of 
liability, or substitution of entitlement to credit reporting agencies, 
companies or individuals extending credit, depository institutions, 
insurance companies, investors, lenders, employers, landlords, utility 
companies and governmental agencies for any of the purposes specified in 
paragraph (c)(2) of this section.
    (2) A release may be made under paragraph (c)(1) of this section:
    (i) To enable such parties to provide the Department of Veterans 
Affairs with data which assists in determining the creditworthiness, 
credit capacity, income or financial resources of the applicant for or 
recipient of loan guaranty administered benefits, or verifying whether 
any such data previously received is accurate; or
    (ii) To enable the Secretary to offer for sale or other disposition 
any loan or installment sale contract.


(Authority: 38 U.S.C. 5701(h)(2)(A), (B), (C))

    (d) Upon request, the Secretary may release information relating to 
the individual's loan transaction to credit reporting agencies, 
companies or individuals extending credit, depository institutions, 
insurance companies, investors, lenders, employers, landlords, utility 
companies and governmental agencies where necessary in connection with a 
transfer of information on the status of a Department of Veterans 
Affairs loan account to persons or organizations proposing to extend 
credit or render services or other benefits to the borrower in order 
that the person or organization may determine whether to extend credit 
or render services or other benefits to the borrower. Such

[[Page 45]]

releases shall be made only if the person or organization seeking the 
information furnishes the individual's name, address or other 
information necessary to identify the individual.


(Authority: 38 U.S.C. 5701(e), (h)(2)(A) and (D))

    (e) The Secretary shall maintain information in the loan guaranty 
file consisting of the date, notice and purpose of each disclosure, and 
the name and address of the person to whom the disclosure is made from 
the loan guaranty files.

(Authority: 38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))

[47 FR 11279, Mar. 16, 1982]



Sec. 1.513  Disclosure of information contained in Armed Forces service 
and related medical records in Department of Veterans Affairs custody.

    (a) Service records. Information received by the Department of 
Veterans Affairs from the Departments of the Army, Navy, Air Force, and 
the Department of Transportation relative to the military or naval 
service of a claimant is furnished solely for the official use of the 
Department of Veterans Affairs but such information may be disclosed 
under the limitations contained in Sec. Sec. 1.501 through 1.526.
    (b) Medical records. Information contained in the medical records 
(including clinical records and social data) may be released under the 
following conditions:
    (1) Complete transcript of r[eacute]sum[eacute] or medical records 
on request to:
    (i) The Department of the Army.
    (ii) The Department of the Navy (including naval aviation and United 
States Marine Corps).
    (iii) The Department of the Air Force.
    (iv) The Department of Transportation (Coast Guard).
    (v) Selective Service (in case of registrants only).
    (vi) Federal or State hospitals or penal institutions when the 
veteran is a patient or inmate therein.
    (vii) United States Public Health Service, or other governmental or 
contract agency in connection with research authorized by, or conducted 
for, the Department of Veterans Affairs.
    (viii) Registered civilian physicians, on the request of the 
individual or his or her legal representative, when required in 
connection with the treatment of the veteran. (The transcript or resume 
should be accompanied by the statement ``it is expected that the 
information contained herein will be treated as confidential, as is 
customary in civilian professional medical practice.'')
    (ix) The veteran on request, except information contained in the 
medical record which would prove injurious to his or her physical or 
mental health.
    (x) The next of kin on request of the individual, or legal 
representative, when the information may not be disclosed to the veteran 
because it will prove injurious to his or her physical or mental health, 
and it will not be injurious to the physical or mental health of the 
next of kin or cause repugnance or resentment toward the veteran; and 
directly to the next of kin, or legal representative, when the veteran 
has been declared to be insane or is dead.
    (xi) Health and social agencies, on the authority of the veteran or 
his or her duly authorized representative.
    (2) In addition to the authorizations in paragraph (b)(1) of this 
section, the Department of Justice, the Department of the Treasury, and 
the U.S. Postal Service may, on request, be given pertinent information 
from medical records for use in connection with investigations conducted 
by these departments. Each such request shall be considered on its 
merits, and the information released should be the minimum necessary in 
connection with the investigation conducted by these departments.
    (3) Compliance with court orders calling for the production of 
medical records in connection with litigation or criminal prosecutions 
will be effected in accordance with Sec. 1.511.

[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60 
FR 63938, Dec. 13, 1995]

[[Page 46]]



Sec. 1.514  Disclosure to private physicians and hospitals other than 
Department of Veterans Affairs.

    (a) When a beneficiary elects to obtain medical attention as a 
private patient from a private practitioner or in a medical center other 
than a Department of Veterans Affairs hospital, there may be disclosed 
to such private practitioner or head of such medical center (Federal, 
State, municipal, or private), such information as to the medical 
history, diagnosis, findings, or treatment as is requested, including 
the loan of original X-ray films, whether Department of Veterans Affairs 
clinical X-rays or service department entrance and separation X-rays, 
provided there is also submitted a written authorization from the 
beneficiary or his or her duly authorized representative. The 
information will be supplied without charge directly to the private 
physician or medical center head and not through the beneficiary or 
representative. In forwarding this information, it will be accompanied 
by the stipulations that it is released with consent of or on behalf of 
the patient and that the information will be treated as confidential, as 
is customary in civilian professional medical practice.
    (b) Such information may be released without charge and without 
consent of the patient or his or her duly authorized representative when 
a request for such information is received from:
    (1) The superintendent of a State hospital for psychotic patients, a 
commissioner or head of a State department of mental hygiene, or head of 
a State, county, or city health department; or
    (2) Any fee basis physician or institution in connection with 
authorized treatment of the veteran as a Department of Veterans Affairs 
beneficiary; or
    (3) Any physician or medical installation treating the veteran under 
emergency conditions.

[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]



Sec. 1.514a  Disclosure to private psychologists.

    When a beneficiary elects to obtain therapy or analysis as a private 
patient from a private psychologist, such information in the medical 
record as may be pertinent may be released. Generally, only information 
developed and documented by Department of Veterans Affairs psychologists 
will be considered pertinent, although other information from the 
medical record may be released if it is determined to be pertinent and 
will serve a useful purpose to the private psychologist in rendering his 
or her services. Information will be released under this section upon 
receipt of the written authorization of the beneficiary or his or her 
duly authorized representative. Information will be forwarded to private 
psychologists directly, not through the beneficiary or representative, 
without charge and with the stipulation that it is released with consent 
of or on behalf of the patient and must be treated as confidential as is 
customary in regular professional practice.

[34 FR 13368, Aug. 19, 1969]



Sec. 1.515  To commanding officers of State soldiers' homes.

    When a request is received in a Department of Veterans Affairs 
regional office, center, or medical center from the commanding officer 
of a State soldiers' home for information other than information 
relative to the character of the discharge from a Department of Veterans 
Affairs center or medical center concerning a veteran formerly domiciled 
or hospitalized therein, the provisions of Sec. 1.500 are applicable, 
and no disclosure will be made unless the request is accompanied by the 
authorization outlined in Sec. 1.503. However, station heads, upon 
receipt of a request from the commanding officer of a State soldiers' 
home for the character of the discharge of a veteran from a period of 
hospital treatment or domiciliary care as a beneficiary of the 
Department of Veterans Affairs, will comply with the request, 
restricting the information disclosed solely to the character of the 
veteran's discharge from such treatment or care. Such information will 
be disclosed only upon receipt of a specific request therefor from the 
commanding officer of a State soldiers' home.

[30 FR 6435, May 8, 1965]

[[Page 47]]



Sec. 1.516  Disclosure of information to undertaker concerning burial 
of a deceased veteran.

    When an undertaker requests information believed to be necessary in 
connection with the burial of a deceased veteran, such as the name and 
address of the beneficiary of the veteran's Government insurance policy, 
name and address of the next of kin, rank or grade of veteran and 
organization in which he or she served, character of the veteran's 
discharge, or date and place of birth of the veteran, and it appears 
that the undertaker is holding the body awaiting receipt of the 
information requested, the undertaker, in such instances, may be 
considered the duly authorized representative of the deceased veteran 
for the purpose of obtaining said information. In ordinary cases, 
however, the undertaker will be advised that information concerning the 
beneficiary of a Government insurance policy is confidential and cannot 
be disclosed; the beneficiary will be advised immediately of the 
inquiry, and the furnishing of the desired information will be 
discretionary with the beneficiary. In no case will the undertaker be 
informed of the net amount due under the policy or furnished information 
not specifically mentioned in this paragraph.

[46 FR 62059, Dec. 22, 1981]



Sec. 1.517  Disclosure of vocational rehabilitation and education 

information to educational institutions cooperating with the 
Department of Veterans Affairs.

    Requests from educational institutions and agencies cooperating with 
the Department of Veterans Affairs in the vocational rehabilitation and 
education of veterans for the use of vocational rehabilitation and 
education records for research studies will be forwarded to central 
office with the facility head's recommendation for review by the Under 
Secretary for Benefits. Where the request to conduct a research study is 
approved by the Under Secretary for Benefits, the facility head is 
authorized by this section to release information for such studies from 
vocational rehabilitation and education rec ords as required: Provided, 
however, That any data or information obtained shall not be published 
without prior approval of the Under Secretary for Benefits and that data 
contained in published material shall not identify any individual 
veteran.

[30 FR 6435, May 8, 1965]



Sec. 1.518  Addresses of claimants.

    (a) It is the general policy of the Department of Veterans Affairs 
to refuse to furnish addresses from its records to persons who desire 
such information for debt collection, canvassing, harassing or for 
propaganda purposes.
    (b) The address of a Department of Veterans Affairs claimant as 
shown by Department of Veterans Affairs files may be furnished to:
    (1) Duly constituted police or court officials upon official request 
and the submission of a certified copy either of the indictment returned 
against the claimant or of the warrant issued for his or her arrest.
    (2) Police, other law enforcement agencies, or Federal, State, 
county, or city welfare agencies upon official written request showing 
that the purpose of the request is to locate a parent who has deserted 
his or her child or children and that other reasonable efforts to obtain 
an address have failed. The address will not be released when such 
disclosure would be prejudicial to the mental or physical health of the 
claimant. When an address is furnished it will be accompanied by the 
stipulation that it is furnished on a confidential basis and may not be 
disclosed to any other individual or agency.
    (c) When an address is requested that may not be furnished under 
Sec. Sec. 1.500 through 1.526, the person making the request will be 
informed that a letter, or in those cases involving judicial actions, 
the process or notice in judicial proceedings, enclosed in an unsealed 
envelope showing no return address, with the name of the addressee 
thereon, and bearing sufficient postage to cover mailing costs will be 
forwarded by the Department of Veterans Affairs. If a request indicates 
that judicial action is involved in which a process or notice in 
judicial proceedings is required to be forwarded, the Department of 
Veterans Affairs will inform the person who requests the forwarding of 
such a document that the envelope

[[Page 48]]

must bear sufficient postage to cover costs of mailing and certified or 
registered mailing fees, including cost of obtaining receipt for the 
certified or registered mail when transmission by this type special mail 
is desired. At the time the letter, process, or notice in judicial 
proceedings is forwarded, the facility's return address will be placed 
on the envelope. When the receipt for certified or registered mail or 
the undelivered envelope is returned to the Department of Veterans 
Affairs, the original sender will be notified thereof: However, the 
receipt or the envelope will be retained by the Department of Veterans 
Affairs. This provision will be applicable only when it does not 
interfere unduly with the functions of the Service or division 
concerned. In no event will letters be forwarded to aid in the 
collection of debts or for the purpose of canvassing, harassing, or 
propaganda. Neither will a letter be forwarded if the contents could be 
harmful to the physical or mental health of the recipient.
    (d) Subject to the conditions set forth in Sec. 1.922, the 
Department of Veterans Affairs may disclose to consumer reporting 
agencies information contained in a debtor's claims folder. Such 
information may include the debtor's name and/or address, Department of 
Veterans Affairs file number, Social Security number, and date of birth.

(Authority: 38 U.S.C. 5701(g))

[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at 
46 FR 62059, Dec. 22, 1981]



Sec. 1.519  Lists of names and addresses.

    (a) Any organization wanting a list of names and addresses of 
present or former personnel of the armed services and their dependents 
from the Department of Veterans Affairs must make written application to 
the Department of Veterans Affairs Controller, except lists of 
educationally disadvantaged veterans should be requested from the 
Director of the nearest regional office. The application must:
    (1) Clearly identify the type or category of names and addresses 
sought;
    (2) Furnish proof satisfactory to the Department of Veterans Affairs 
that the organization seeking the list is a ``nonprofit organization.'' 
Normally, evidence establishing that the organization is exempt from 
taxation in accordance with the provisions of 26 U.S.C. 501 or is a 
governmental body or institution will be accepted as satisfying this 
criteria;
    (3) Contain a statement clearly setting forth the purpose for which 
the list is sought, the programs and the resources the organization 
proposes to devote to this purpose, and establish how such purpose is 
``directly connected with the conduct of programs and the utilization of 
benefits'' under title 38, U.S.C.; and
    (4) Contain a certification that the organization, and all members 
thereof who will have access to the list, are aware of the penalty 
provisions of 38 U.S.C. 5701(f) and will not use the list for any 
purpose other than that stated in the application.
    (b) If the Director of the regional office concerned finds that the 
organization requesting the list of names and addresses of educationally 
disadvantaged veterans is a nonprofit organization and operates an 
approved program of special secondary, remedial, preparatory or other 
educational or supplementary assistance to veterans as provided under 
subchapter V, title 38 U.S.C., then he or she may authorize the release 
of such names and addresses to the organization requesting them.
    (c) The Associate Deputy Assistant Secretary for Information 
Resources Management, with the concurrence of the General Counsel, is 
authorized to release lists of names and addresses to organizations 
which have applied for such lists in accordance with paragraph (a) of 
this section if he or she finds that the purpose for which the 
organization desires the names and addresses is directly connected with 
the conduct of programs and the utilization of benefits under title 38 
U.S.C. Lists of names and addresses authorized to be released pursuant 
to this paragraph shall not duplicate lists released to other elements, 
segments, or chapters of the same organization.
    (d) If the list requested is one that the Department of Veterans 
Affairs has previously compiled or created, in the same format, to carry 
out one or more of its basic program responsibilities

[[Page 49]]

and it is determined that it can be released, the list may be furnished 
without charge. For other types of lists, a charge will be made in 
accordance with the provisions of Sec. 1.526.
    (e) Upon denial of a request, the Department of Veterans Affairs 
Controller or Regional Office Director will inform the requester in 
writing of the denial and the reasons therefor and advise the 
organization that it may appeal the denial to the General Counsel. In 
each instance of a denial of a request, the denial and the reasons 
therefor will be made a matter of record.
    (f) Section 5701(f), title 38 U.S.C., provides that any 
organization, or member thereof, which uses the names and addresses 
furnished it for any purpose other than one directly connected with the 
conduct of programs and the utilization of benefits under title 38 
U.S.C., shall be fined not more than $500 in the case of the first 
offense and not more than $5,000 in the case of the subsequent offenses. 
Any instance in which there is evidence of a violation of these penal 
provisions will be reported in accordance with Sec. 14.560.

(Approved by the Office of Management and Budget under control number 
2900-0438)

[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981; 
49 FR 32848, Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]



Sec. 1.520  Confidentiality of social data.

    Persons having access to social data will be conscious of the fact 
that the family, acquaintances, and even the veteran have been willing 
to reveal these data only on the promise that they will be held in 
complete confidence. There will be avoided direct, ill-considered 
references which may jeopardize the personal safety of these individuals 
and the relationship existing among them, the patient, and the social 
worker, or may destroy their mutual confidence and influence, rendering 
it impossible to secure further cooperation from these individuals and 
agencies. Physicians in talking with beneficiaries will not quote these 
data directly but will regard them as indicating possible directions 
toward which they may wish to guide the patient's self-revelations 
without reproaching the patient for his or her behavior or arousing 
natural curiosity or suspicion regarding any informant's statement. The 
representatives of service organizations and duly authorized 
representatives of veterans will be especially cautioned as to their 
grave responsibility in this connection.

[46 FR 62059, Dec. 22, 1981]



Sec. 1.521  Special restrictions concerning social security records.

    Information received from the Social Security Administration may be 
filed in the veteran's claims folder without special provisions. Such 
information will be deemed privileged and may not be released by the 
Department of Veterans Affairs except that information concerning the 
amount of social security benefits paid to a claimant or the amount of 
social security tax contributions made by the claimant may be disclosed 
to the claimant or his or her duly authorized representative. Any 
request from outside the Department of Veterans Affairs for other social 
security information will be referred to the Social Security 
Administration for such action as they deem proper.

[27 FR 9599, Sept. 28, 1962]



Sec. 1.522  Determination of the question as to whether disclosure will 
be prejudicial to the mental or physical health of claimant.

    Determination of the question when disclosure of information from 
the files, records, and reports will be prejudicial to the mental or 
physical health of the claimant, beneficiary, or other person in whose 
behalf information is sought, will be made by the Chief Medical 
Director; Chief of Staff of a hospital; or the Director of an outpatient 
clinic.

[33 FR 19009, Dec. 20, 1968]



Sec. 1.523  [Reserved]



Sec. 1.524  Persons authorized to represent claimants.

    A duly authorized representative will be:
    (a) Any person authorized in writing by the claimant to act for him 
or her,
    (b) An attorney who has filed the declaration required by Sec. 
14.629(b)(1) of this chapter, or

[[Page 50]]

    (c) His or her legally constituted fiduciary, if the claimant is 
incompetent. Where for proper reasons no legally constituted fiduciary 
has been or will be appointed, his or her spouse, his or her children, 
or, if the claimant is unmarried, either of his or her parents shall be 
recognized as the fiduciary of the claimant.

[33 FR 6536, Apr. 30, 1968]



Sec. 1.525  Inspection of records by or disclosure of information to 
recognized representatives of organizations and recognized attorneys.

    (a)(1) The accredited representatives of recognized organizations 
(Sec. 14.627 of this chapter) holding appropriate power of attorney and 
recognized attorneys (Sec. 14.629(b) of this chapter) with the written 
authorization of the claimant may, subject to the restrictions imposed 
by paragraph (a)(2) of this section, inspect the claims, insurance and 
allied folders of any claimant upon the condition that only such 
information contained therein as may be properly disclosed under 
Sec. Sec. 1.500 through 1.526 will be disclosed by him or her to the 
claimant or, if the claimant is incompetent, to his or her legally 
constituted fiduciary. Under the same restrictions, it is permissible to 
release information from and permit inspection of loan guaranty folders 
in which a request for a waiver of the debt of a veteran or his or her 
spouse has been received, or where there has been a denial of basic 
eligibility for loan guaranty benefits. All other information in the 
files shall be treated as confidential and will be used only in 
determining the status of the cases inspected or in connection with the 
presentation to officials of the Department of Veterans Affairs of the 
claim of the claimant. The heads of field facilities and the directors 
of the services concerned in Central Office will each designate a 
responsible officer to whom requests for all files must be made, except 
that managers of centers with insurance activities will designate two 
responsible officials, recommended by the division chiefs concerned, one 
responsible for claims and allied folders and the other for insurance 
files. The term claimant as used in this paragraph includes insureds.
    (2) In the case of a living veteran a representative acting under a 
power of attorney from any person not acting on behalf of the veteran 
will not be permitted to review the records of the veteran or be 
furnished any information therefrom to which the person is not entitled, 
i.e., information not relating to such person alone. Powers of attorney 
submitted by the other person will be considered ``Limited'' and will be 
so noted when associated with the veteran's records. The provisions of 
this subparagraph are also applicable to recognized attorneys and the 
requisite declarations filed by them.
    (3) When power of attorney does not obtain, the accredited 
representative will explain to the designated officer of the Department 
of Veterans Affairs the reason for requesting information from the file, 
and the information will be made available only when in the opinion of 
the designated officer it is justified; in no circumstances will such 
representatives be allowed to inspect the file; in such cases a contact 
report will be made out and attached to the case, outlining the reasons 
which justify the verbal or written release of the information to the 
accredited representative.
    (4) In any case where there is an unrevoked power of attorney or 
declaration of representation, no persons or organizations other than 
the one named in such document shall be afforded information from the 
file except under the conditions set forth in Sec. 14.629(b)(2) of this 
chapter. When any claimant has filed notice with the Department of 
Veterans Affairs that he or she does not want his or her file inspected, 
such file will not be made available for inspection.
    (b)(1) Inspection of folders by accredited representatives or 
recognized attorneys holding a written authorization where such cases 
are being processed shall be in space assigned for such inspection. 
Otherwise station heads may permit inspection of folders at the desks of 
the accredited representatives, in the office(s) which they regularly 
occupy.
    (2) An insured or after maturity of the insurance by death of the 
insured,

[[Page 51]]

the beneficiary, may authorize the release to a third person of such 
insurance information as the insured or the beneficiary would be 
entitled to receive, provided there is submitted to the Department of 
Veterans Affairs, a specific authorization in writing for this purpose.
    (3) Unless otherwise authorized by the insured or the beneficiary, 
as the case may be, such authorized representative, recognized attorney 
or accredited representative shall not release information as to the 
designated beneficiary to anyone other than the insured or to the 
beneficiary after death of the insured. Otherwise, information in the 
insurance file shall be subject to the provisions of Sec. Sec. 1.500 
through 1.526.
    (4) Clinical records and medical files, including files for 
outpatient treatment, may be inspected by accredited representatives or 
recognized attorneys holding a written authorization only to the extent 
such records or parts thereof are incorporated in the claims folder, or 
are made available to Department of Veterans Affairs personnel in the 
adjudication of the claim. Records or data in clinical or medical files 
which are not incorporated in the claims folder or which are not made 
available to Department of Veterans Affairs personnel for adjudication 
purposes will not be inspected by anyone other than those employees of 
the Department of Veterans Affairs whose duties require same for the 
purpose of clinical diagnosis or medical treatment.
    (5) Under no circumstances shall any paper be removed from a file, 
except by a Department of Veterans Affairs employee, for purpose of 
having an authorized copy made. Copying of material in a file shall not 
be permitted except in connection with the performance of authorized 
functions under the power of attorney or requisite declaration of a 
recognized attorney.
    (6) In any case involving litigation against the Government, whether 
contemplated or initiated, inspection, subject to the foregoing, shall 
be within the discretion of the General Counsel or Regional Counsel, 
except that in insurance suits under 38 U.S.C. 1975, 1984, inspection 
shall be within the discretion of the official having jurisdiction of 
the claim. Files in such cases may be released to the Department of 
Justice, but close liaison will be maintained to insure their return 
intact upon termination of the litigation.
    (c) Facility heads and the directors of the services concerned in 
central office will be responsible for the administrative compliance 
with and accomplishment of the foregoing within their jurisdiction, and 
any violations of the prescribed conditions for inspection of files or 
release of information therefrom will be brought to the immediate 
attention of the Secretary.
    (d) Any person holding power of attorney, a recognized attorney who 
has filed the requisite declaration, or the accredited representative of 
a recognized organization holding power of attorney shall be supplied 
with a copy of each notice to the claimant respecting the adjudication 
of the claim. If a claimant dies before action on the claim is 
completed, the person or organization holding power of attorney or the 
attorney who has filed the requisite declaration may continue to act 
until the action is completed except where the power of attorney or 
requisite declaration was filed on behalf of a dependent.
    (e) When in developing a claim the accredited representative of a 
recognized organization finds it necessary to call upon a local 
representative to assemble information or evidence, he or she may make 
such disclosures to the local representative as the circumstances of the 
case may warrant, provided the power of attorney to the recognized 
organization contains an authorization permitting such disclosure.

[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32 
FR 10849, July 25, 1967; 33 FR 6536, Apr. 30, 1968]



Sec. 1.526  Copies of records and papers.

    (a) Any person desiring a copy of any record or document in the 
custody of the Department of Veterans Affairs, which is subject to be 
furnished under Sec. Sec. 1.501 through 1.526, must make written 
application for such copy to the Department of Veterans Affairs 
installation having custody of the subject matter desired, stating 
specifically: (1)

[[Page 52]]

The particular record or document the copy of which is desired and 
whether certified and validated, or uncertified, (2) the purpose for 
which such copy is desired to be used.
    (b) The types of services provided by the Department of Veterans 
Affairs for which fees will be charged are identified in paragraph (i) 
of this section.
    (c) This section applies to the services furnished in paragraph (b) 
of this section when rendered to members of the public by the Department 
of Veterans Affairs. It does not apply to such services when rendered to 
or for other agencies or branches of the Federal Government, or State 
and local governments when furnishing the service will help to 
accomplish an objective of the Department of Veterans Affairs, or when 
performed in connection with a special research study or compilation 
when the party requesting such services is charged an amount for the 
whole job.
    (d) When copies of a record or document are furnished under 
Sec. Sec. 1.506, 1.507, 1.510, and 1.514, such copies shall be supplied 
without charge. Moreover, free service may be provided, to the extent of 
one copy, to persons who have been required to furnish original 
documents for retention by the Department of Veterans Affairs.
    (e) The following are circumstances under which services may be 
provided free at the discretion of facility heads or responsible Central 
Office officials:
    (1) When requested by a court, when the copy will serve as a 
substitute for personal court appearance of a Government witness.
    (2) When furnishing the service free saves costs or yields income 
equal to the direct costs of the agency providing the service. This 
includes cases where the fee for the service would be included in a 
billing against the Government (for example, in cost-type contracts, or 
in the case of private physicians who are treating Government 
beneficiaries at Government expense).
    (3) When a service is occasional and incidental, not of a type that 
is requested often, and if it is administratively determined that a fee 
would be inappropriate in such an occasional case.
    (f) When information, statistics, or reports are released or 
furnished under Sec. 1.501 or Sec. 1.519, the fee charge, if any, will 
be determined upon the merits of each individual application.
    (g) In those cases where it is determined that a fee shall be 
charged, the applicant will be advised to deposit the amount of the 
lawful charge for the copy desired. The amount of such charge will be 
determined in accordance with the schedule of fees prescribed in 
paragraph (i) of this section. The desired copy will not be delivered, 
except under court subpoena, until the full amount of the lawful charge 
is deposited. Any excess deposit of $1 or more over the lawful charge 
will be returned to the applicant. Excess deposits of less than $1 will 
be returned upon request. When a deposit is received with an 
application, such a deposit will be returned to the applicant should the 
application be denied.
    (h) Copies of reports or records received from other Government 
departments or agencies will not be furnished except as provided in 
Sec. 1.513.
    (i) Fees to be charged.
    (1) Schedule of fees:

------------------------------------------------------------------------
              Activity                               Fees
------------------------------------------------------------------------
(i) Duplication of document by any   $0.15 per page after first 100 one-
 type of reproduction process to      sided pages.
 produce plain one-sided paper
 copies of a standard size (8\1/
 2\ x 11; 8\1/
 2\ x 14;
 11 x 14).
(ii) Duplication of non-paper        Actual direct cost to the Agency as
 records, such as microforms,         defined in Sec. 1.555(a)(2) of
 audiovisual materials (motion        this part to the extent that it
 pictures, slides, laser optical      pertains to the cost of
 disks, video tapes, audiotapes,      duplication.
 etc.) computer tapes and disks,
 diskettes for personal computers,
 and any other automated media
 output.
(iii) Duplication of documents by    Actual direct cost to the Agency as
 any type of reproduction process     defined in Sec. 1.555(a)(2) of
 not covered by paragraphs (i)(1)     this part to the extent that it
 (i) and (ii) of this section to      pertains to the cost of
 produce a copy in a form             duplication.
 reasonably usable by a requester.

[[Page 53]]

 
(iv) Providing special information,  Actual cost to the Agency including
 statistics, reports, drawings,       computer and manual search costs,
 specifications, lists of names and   copying costs, labor, and material
 addresses (either in paper or        and overhead expenses.
 machine readable form), computer
 or other machine readable output.
(v) Attestation under the seal of    $3.00 per document so certified.
 the Agency.
(vi) Providing abstracts or copies   $10.00 per request.
 of medical and dental records to
 insurance companies for other than
 litigation purposes.
(vii) Providing files under court    Actual direct cost to the Agency.
 subpoena.
------------------------------------------------------------------------
(Note. If VA regularly contracts for duplicating services related to
  providing the requested records, such as the duplication of microfilm
  or architect's plans and drawings, the contractor fees may be included
  in the actual direct cost to the Agency)

    (2) Benefit records. When VA benefit records are requested by a VA 
beneficiary or applicant for VA benefits, the duplication fee for one 
complete set of such records will be waived.


(Authority: 38 U.S.C. 5702(b))

    (j) If the copy is to be transmitted by certified or registered 
mail, airmail, or special delivery mail, the postal fees therefor shall 
be added to the other fees provided in paragraph (i) of this section (or 
the order must include postage stamps or stamped return envelopes for 
the purpose).
    (k) Those Department of Veterans Affairs installations not having 
copying equipment are authorized to arrange with the nearest Department 
of Veterans Affairs installation having such equipment to make the 
necessary authorized copies of records or documents.
    (l) Administration, staff office, and field facility heads are 
authorized to designate employees to certify copies of records and 
papers furnished under the provisions of paragraph (a) of this section.

[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33 
FR 9342, June 26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4, 
1972; 39 FR 3938, Jan. 31, 1974; 53 FR 10376, Mar. 31, 1988; 54 FR 
34980, Aug. 23, 1989]



Sec. 1.527  Administrative review.

    (a) Any person may, in the event of a denial of his or her request 
to inspect or obtain information from or copies of records within the 
purview of Sec. Sec. 1.501 through 1.526, appeal such denial. Such 
appeal, stating the circumstances of the denial, should be addressed, as 
appropriate, to the field facility, administration, or staff office 
head.
    (b) A denial action not reversed by a field facility, 
administration, or staff office head on appeal, will be referred through 
normal channels to the General Counsel.
    (c) The final agency decision in such appeals will be made by the 
General Counsel or the Deputy General Counsel.

[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]

Release of Information From Department of Veterans Affairs Records Other 
                          Than Claimant Records

    Note: Sections 1.550 through 1.559 concern the availability and 
release of information from files, records, reports, and other papers 
and documents in Department of Veterans Affairs custody other than those 
pertaining to claims under any of the laws administered by the 
Department of Veterans Affairs. As to the release of information from 
Department of Veterans Affairs claimant records, see Sec. Sec. 1.500 
through 1.527. Section 1.550 series implement the provisions of 5 U.S.C. 
552.

[40 FR 12656, Mar. 20, 1975]

    Authority: Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 
U.S.C. 501.



Sec. 1.550  General.

    The Department of Veterans Affairs policy is one of disclosure of 
information from agency records to the extent permitted by law. This 
includes the release of information which the Department of Veterans 
Affairs is authorized to withhold under 5 U.S.C. 552(b) (see Sec. 
1.554) if it is determined: (a) By the Secretary of Veterans Affairs or 
the Deputy Secretary that disclosure of such information will serve a 
useful purpose or (b) by an administration, staff office, or field 
facility head or designee under Sec. 1.556(a) that disclosure

[[Page 54]]

will not adversely affect the proper conduct of official business or 
constitute an invasion of personal privacy.

[40 FR 12656, Mar. 20, 1975]



Sec. 1.551  [Reserved]



Sec. 1.552  Public access to information that affects the public when 
not published in the Federal Register as constructive notice.

    (a) All final orders in such actions as entertained by the Contract 
Appeals Board, those statements of policy and interpretations adopted by 
the Department of Veterans Affairs but not published in the Federal 
Register, and administrative manuals and staff instructions that affect 
any member of the public, unless promptly published and copies offered 
for sale, will be kept currently indexed by the office of primary 
program responsibility or the Manager, Administrative Services, as 
determined by the Secretary or designee. Such index or indexes or 
supplements thereto will be promptly published, quarterly or more 
frequently, and distributed (by sale or otherwise) unless the Department 
of Veterans Affairs determines by order published in the Federal 
Register that publication would be unnecessary and impracticable, in 
which case the Department of Veterans Affairs will nonetheless provide 
copies of such index or indexes or supplements thereto on request at a 
cost not to exceed the direct cost of duplication. Both the index and 
the materials indexed as required by this paragraph will be made 
available to the public, for inspection and copying. Public reading 
facilities for this purpose will be maintained in Department of Veterans 
Affairs Central Office and Department of Veterans Affairs field 
facilities, open to the public during the normal duty hours of the 
office in which located. Orders made in the adjudication of individual 
claims under laws administered by the Department of Veterans Affairs are 
confidential and privileged by statute (38 U.S.C. 5701) and so are 
exempt from this requirement.
    (b) The voting records of the Contract Appeals Board will be 
maintained in a public reading facility in the Office of the Board in 
Central Office and made available to the public upon request.
    (c) When publishing or making available to the public any opinion, 
order, statement of policy, interpretation, staff manual or instruction 
to staff, identifying details will be deleted, and the deletion 
justified in writing, to the extent required to prevent a clearly 
unwarranted invasion of personal privacy.
    (d) No final order, opinion, statement of policy, interpretation, 
staff manual or instruction which is issued, adopted, or promulgated 
after July 4, 1967, that affects any member of the public may be relied 
upon, used, or cited as precedent against any private party unless it 
has been indexed and either made available or published as provided in 
this section or unless that private party shall have actual and timely 
notice of the terms thereof.

[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975]



Sec. 1.553  Public access to other reasonably described records.

    (a) Except for requests for records which are processed under 
Sec. Sec. 1.551 and 1.552 of this part, unless otherwise provided for 
in title 38, Code of Federal Regulations, all requests for records shall 
be processed under paragraph (b) of this section, as well as under any 
other VA law or regulation governing access to or confidentiality of 
records or information. Records or information customarily furnished to 
the public in the regular course of the performance of official duties 
may be furnished to the public without reference to paragraph (b) of 
this section. To the extent permitted by other laws and regulations, VA 
will also consider making available records which it is permitted to 
withhold under the FOIA if it determines that such disclosure could be 
in the public interest.
    (b) Reasonably described records in VA custody, or copies thereof, 
other than records made available to the public under provisions of 
Sec. Sec. 1.551 and 1.552 of this part, or unless otherwise provided 
for in title 38, Code of Federal Regulations, requested in accordance 
with published rules stating the time, place, fees (if any), and 
procedures to be followed, will be made promptly available, except as 
provided in Sec. 1.554

[[Page 55]]

of this part, to any person upon request. Such request must be in 
writing, over the signature of the requester and must contain a 
reasonable description of the record desired so that it may be located 
with relative ease. The request should be made to the office concerned 
(having jurisdiction of the record desired) or, if not known, to the 
Director or Veterans Services Officer in the nearest VA regional office; 
the Director, or Chief, Medical Administration Service, or other 
responsible official of VA medical facility where most recently treated; 
or to the Department of Veterans Affairs Central Office, 810 Vermont 
Avenue NW., Washington, DC 20420. Personal contacts should normally be 
made during the regular duty hours of the office concerned, which are 8 
a.m. to 4:30 p.m. Monday through Friday for VA Central Office and most 
field facilites.

(Authority: 5 U.S.C. 552(a)(3))

[53 FR 10377, Mar. 31, 1988]



Sec. 1.553a  Time limits for Department of Veterans Affairs response 
to requests for records.

    (a) When a request for records made under Sec. 1.551, Sec. 1.552 
or Sec. 1.553 is received it will be promptly referred for action to 
the proper employee designated in accordance with Sec. 1.556 to take 
initial action on granting or denying requests to inspect or obtain 
information from or copies of the records described.
    (b) Any such request will then be promptly evaluated and a 
determination made within 10 days (excepting Saturdays, Sundays, and 
legal public holidays) after the receipt of the request whether the 
Department of Veterans Affairs will comply with the request. Upon 
determination to comply or deny the request the person making the 
request will be notified immediately of the determination and the 
reasons therefor, and of the right of the person to appeal to the 
Secretary of Veterans Affairs any adverse determination. Records to be 
furnished will be supplied promptly.
    (c) Upon receipt of such an appeal from an adverse determination it 
will be evaluated and a further determination made within 20 days 
(excepting Saturdays, Sundays, and legal public holidays) after receipt 
of the appeal. If on appeal the denial is in whole or in part upheld the 
Department of Veterans Affairs will notify the requester of the 
provisions for judicial review of this determination. (See Sec. Sec. 
1.557 and 1.558.)
    (d) In unusual circumstances, specifically as follows, the time 
limits in paragraphs (b) and (c) of this section may be extended by 
written notice to the requester setting forth the reasons for such 
extension and the date on which a determination is expected to be 
dispatched. The date specified will not result in an extension for more 
than 10 working days. Unusual circumstances will be interpreted to mean, 
but only to the extent reasonably necessary to the proper processing of 
the particular request, as follows:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
Department of Veterans Affairs having substantial subject-matter 
interest therein.
    (e) Pursuant to section 552(a)(6), title 5 U.S.C., any person making 
a request to the Department of Veterans Affairs for records under 
section 552(a) (1), (2) or (3) (see Sec. Sec. 1.551, 1.552 and 1.553) 
will be deemed to have exhausted his or her administrative remedies with 
respect to such request if the Department of Veterans Affairs fails to 
comply with the applicable time limit provisions of this section. If, 
however, the Government can show exceptional circumstances exist and 
that the Department of Veterans Affairs is exercising due diligence in 
responding to the request, the statute also permits the court to retain 
jurisdiction and allow the Department of Veterans Affairs additional 
time to complete its review of the records.

[[Page 56]]

    (f) Requests for the release of information from files, records, 
reports, and other papers and documents in Department of Veterans 
Affairs custody pertaining to claims under any of the laws administered 
by the Department of Veterans Affairs (covered by Sec. Sec. 1.500 
through 1.527) may also be initiated under 5 U.S.C. 552. Such requests 
will also be evaluated, a determination made within 10 days (excepting 
Saturdays, Sundays, and legal public holidays) after the receipt of the 
request whether the Department of Veterans Affairs will comply with the 
request, and the requester notified immediately of the determination and 
the reasons therefor, and of the right of the person to appeal to the 
Secretary of Veterans Affairs any adverse determination. Records to be 
furnished will be supplied promptly.

[40 FR 12657, Mar. 20, 1975]



Sec. 1.554  Exemptions from public access to agency records.

    (a) The exemptions in this paragraph constitute authority to 
withhold from disclosure certain categories of information in Department 
of Veterans Affairs records except that any reasonably segregable 
portion of a record shall be provided to any person requesting such 
record after deletion of the portions which are exempt under this 
paragraph.
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of the national 
defense or foreign policy, and are in fact properly classified pursuant 
to such Executive order.
    (2) Related solely to internal Department of Veterans Affairs 
personnel rules and practices.
    (3) Specifically exempted from disclosure by statute other than 5 
U.S.C. 552b, provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Trade secrets and commercial or financial information obtained 
from any person and privileged or confidential.
    (5) Interagency or intra-agency memorandums or letters which would 
not be available by law to a private party in litigation with the 
Department of Veterans Affairs.
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigation, information furnished by a confidential 
source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.


(Authority: 5 U.S.C. 552(b)(7))

    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial institutions.
    (9) Geological and geophysical information and data (including maps) 
concerning wells.

[[Page 57]]

    (b) Information in the categories exempted under paragraph (a) of 
this section, other than in paragraph (a)(3) which is applicable to 
Department of Veterans Affairs claimant records, will be released only 
as authorized in Sec. 1.550. The release of information from Department 
of Veterans Affairs claimant records will be made only in accordance 
with Sec. Sec. 1.501 through 1.526.
    (c)(1) Whenever a request is made which involves access to records 
described in paragraph (a)(7)(i) of this section and
    (i) The investigation or proceeding involves a possible violation of 
criminal law, and
    (ii) There is reason to believe that
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings, the Agency may, 
during only such time as that circumstance continues, treat the records 
as not subject to the requirements of this section.
    (2) Whenever informant records maintained by a criminal law 
enforcement agency under an informant's name or personal identifier are 
requested by a third party according to the informant's name or personal 
identifier, the Department may treat the records as not subject to the 
requirements of this section unless the informant's status as an 
informant has been officially confirmed.

(Authority: 5 U.S.C. 552(c)(1) and (c)(2))

[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975; 
42 FR 37976, July 26, 1977; 53 FR 9442, Mar. 23, 1988]



Sec. 1.554a  Predisclosure notification procedures for confidential 
commercial information.

    (a) General. During the conduct of its business the Department of 
Veterans Affairs (VA) may acquire records which contain confidential 
commercial information, as defined in paragraph (b) of this section. 
Such records will not be released in response to a Freedom of 
Information Act (FOIA) request, except under the provisions of this 
section. This section establishes uniform VA procedures for giving 
submitters predisclosure notice of requests for their records which 
contain confidential commercial information that may be exempt from 
disclosure under 38 CFR 1.554(a)(4). These procedures are required by 
Executive Order 12600, Predisclosure Notification Procedures for 
Confidential Commercial Information, dated June 23, 1987.
    (b) Definitions--(1) Confidential commercial information means 
records provided to the government by a submitter that arguably contain 
material exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552 
(b)(4), as implemented by Sec. 1.554 of this part, because disclosure 
could reasonably be expected to cause substantial competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information to the government. The term ``submitter'' 
includes, but is not limited to corporations, State governments, and 
foreign governments.
    (c) Notification to submitters of confidential commercial 
information. When a request is received, for a submitter's record(s), or 
information which contains confidential commercial information, and the 
request is being processed under the FOIA, 5 U.S.C. 552, the submitter 
will be promptly notified in writing of the request when required by 
paragraph (d) of this section. The notification will advise the 
submitter that a request for its record(s) has been received and is 
being processed under the FOIA. The notice will describe the exact 
nature of the record(s) requested or will provide to the submitter 
copies of the record(s) or portions thereof containing the requested 
confidential commercial information. It will also inform the submitter 
of the opportunity to object to the disclosure in writing within 10 
working days, and of the requirements for such a written objection, as 
described in paragraph (f) of this section. The notification will be 
sent by certified mail, return receipt requested.
    (d) When notification is required. (1) For confidential commercial 
information submitted to VA prior to January 1, 1988, notification to 
submitters is required whenever:
    (i) The records are less than 10 years old and the requested 
information has been designated by the submitter as

[[Page 58]]

confidential commercial information; or
    (ii) VA facility, administration, or staff office which has custody 
of the requested records has reason to believe that disclosure of the 
requested information could reasonably be expected to cause substantial 
competitive harm.
    (2) For confidential commercial information submitted to VA on or 
after January, 1, 1988, notification is required whenever:
    (i) The submitter has in good faith designated the requested records 
as confidential information in accordance with paragraph (e) of this 
section; or
    (ii) VA facility, administration, or staff office which has custody 
of the requested records has reason to believe that disclosure could 
reasonably be expected to cause substantial competitive harm.
    (e) Designation by submitters of information as confidential 
commercial information. (1) When business records are provided to VA, 
the submitter may appropriately designate any records or portions 
thereof which contain confidential commercial information, the 
disclosure of which could reasonably be expected to cause substantial 
competitive harm. This designation may be made at the time the 
information or record is given to VA or within a reasonable period of 
time thereafter, but not later than 60 days after receipt of the 
information by VA. Information so designated will be clearly identified 
by marking it with the words ``confidential commercial information'' or 
by an accompanying detailed written description of the specific kinds of 
information that is designated. If a complete document or record is 
designated, the cover page of the document or record will be clearly 
marked ``This entire (document, record, etc.) consists of confidential 
commercial information.'' If only portions of documents are designated, 
only those specific designated portions will be conspicuously annotated 
as ``confidential commercial information.''
    (2) A designation described in paragraph (e)(1) of this section will 
remain in effect for a period of not more than 10 years after submission 
to VA, unless the submitter provides acceptable justification for a 
longer specific period. If a shorter designation period is adequate, the 
submitter's designation should include the earlier expiration date. 
Whenever possible, the submitter's designation should be supported by a 
statement or certification by an officer or authorized representative of 
the submitter that the records are in fact confidential commercial 
information and have not been published or made available to the public.
    (f) Opportunity to object to disclosure. (1) When notification to a 
submitter is made pursuant to paragraph (c) of this section, the 
submitter or designee may object to the disclosure of any specified 
portion of the record(s). Such objection will be in writing, will be 
addressed to the VA official who provided notice, will identify the 
specific record(s) or portion(s) of records that should not be 
disclosed, will specify all grounds upon which disclosure is opposed, 
and will explain in detail why the information is considered to be a 
trade secret or confidential commercial information, i.e., why 
disclosure of the specified records could reasonably be expected to 
cause substantial competitive harm. Information provided by a submitter 
pursuant to this paragraph may itself be subject to disclosure under the 
FOIA.
    (2) Any objection to disclosure must be submitted within 10 working 
days after receipt by the submitter of notification as provided for in 
paragraph (c) of this section.
    (3) If an objection to disclosure is received within the 10 working 
day time period, careful consideration will be given to all specified 
grounds for nondisclosure prior to making an administrative 
determination whether to disclose the record. When it is determined to 
disclose the requested record(s) or portions of records which are the 
subject of an objection, the submitter will be provided a written 
statement of the VA decision, the reason(s) that the submitter's 
objections to disclosure were overruled, a description or copy of the 
exact information or record(s) to be disclosed which were the subject of 
an objection, and the specified date of disclosure. The date of 
disclosure will not be less than 10 working days from the date this 
notice is placed into mail delivery channels.

[[Page 59]]

    (g) Notices to requester. (1) When a request is received for records 
that may contain confidential commercial information protected by FOIA 
exemption (b)(4), 5 U.S.C. 552(B)(4), the requester will be notified 
that the request is being processed under the provisions of this 
regulation and, as a consequence, there may be a delay in receiving a 
response.
    (2) Whenever a submitter is notified, pursuant to paragraph (c) of 
this section, that VA has received a request for records which had been 
provided by such submitter, and that such request was being processed 
under the FOIA, the requester will be notified that the submitter is 
being provided an opportunity to comment on the request. The notice to 
the requester should not include any of the specific information 
contained in the records being requested.
    (3) Whenever VA notifies a submitter of a final decision, the 
requester will also be notified by separate correspondence. This 
notification to the requester may be contained in VA's FOIA decision.
    (h) Notices of lawsuit. Whenever a FOIA requester brings suit 
seeking to compel disclosure of confidential commercial information, the 
submitter of the information will be promptly notified.
    (i) Exceptions to the notification requirements. The predisclosure 
notification requirements in paragraph (c) of this section need not be 
followed if:
    (1) It is determined that the record(s) or information should not be 
disclosed;
    (2) The record(s) requested have been published or have been 
officially made available to the public;
    (3) Disclosure of the record(s) or information is required by law 
(other than the FOIA, 5 U.S.C. 552);
    (4) Disclosure is required by an Agency rule that:
    (i) Was adopted pursuant to notice and public comment;
    (ii) Specifies narrow classes of records submitted to VA that are to 
be released under the FOIA; and
    (iii) Provides in exceptional circumstances for notice when the 
submitter provides written justification, at the time the information is 
submitted or a reasonable time thereafter, that disclosure of the 
information could reasonably be expected to cause substantial 
competitive harm;
    (5) The record(s) requested are not designated by the submitter as 
exempt from disclosure in accordance with paragraph (e) of this section, 
and the submitter had an opportunity to do so at the time of submission 
of the record(s) or a reasonable time thereafter, and VA does not have 
substantial reason to believe that disclosure of the information would 
result in competitive harm; or
    (6) The designation made by the submitter in accordance with 
paragraph (e) of this section appears obviously frivolous, except that, 
in such case, VA must still provide the submitter with advance written 
notice of any final administrative disclosure determination not less 
than 10 working days prior to the specified disclosure date.

(Approved by the Office of Management and Budget under control number 
2900-0393)

(Authority: 38 U.S.C. 501; 5 U.S.C. 552(b)(4): E.O. 12600 (52 FR 23781))

[57 FR 2229, Jan. 21, 1992]



Sec. 1.555  Fees.

    (a) Definitions of terms. For the purpose of this section, the 
following definitions apply:
    (1) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade or profit interests of the requester or the person on whose behalf 
the request is made. To determine whether a request properly belongs in 
this category, consideration must be given to the use to which a 
requester will put the documents requested. Where the use of the records 
sought is not clear in the request or where there is reasonable cause to 
doubt the use to which the requester will put the records sought, 
additional information may be sought from the requester before assigning 
the request to a specific category.
    (2) Direct costs means those expenditures which VA actually incurs 
in searching for and duplicating (and in the case of commercial use 
requests, reviewing) documents to respond to a

[[Page 60]]

Freedom of Information Act (FOIA) request. Direct costs include, for 
example, the salary of the employee performing work, i.e., the basic 
rate of pay for the employee, plus 16 percent of that rate to cover 
benefits, and the cost of operating duplicating machinery. Not included 
in direct costs are overhead expenses such as costs of space, and 
heating or lighting of the facility in which the records are stored.
    (3) Duplication means the process of making a copy of a document 
necessary to respond to a FOIA request. Such copies can take the form of 
paper copy, microform, audiovisual materials or machine readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided must be in a form that is reasonably usable by requesters.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research. 
To determine whether a request properly belongs in this category, the 
request must be evaluated to ensure that it is apparent from the nature 
of the request that it serves a scholarly research goal of the 
institution, rather than an individual goal of the requester or a 
commercial goal of the institution.
    (5) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis (as that term is referenced under 
Commercial use request of this paragraph) and which is operated solely 
for the purpose of conducting scientific research, the results of which 
are not intended to promote any particular product or industry.
    (6) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term news means information that is 
about current events or that would be of current interest to the public. 
Examples of news media entities include television or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only in those instances when they can qualify as disseminators of news) 
who make their products available for purchase or subscription by the 
general public. These examples are not intended to be all inclusive. As 
traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media will be included in this category. Freelance 
journalists may be regarded as working for a news organization if they 
can demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it. A publication 
contract would be the clearest proof, but the requester's past 
publication history can be considered also. In any case, freelancers who 
do not qualify for inclusion in the representative of the news media 
category may seek a reduction or waiver of fees under paragraph (f) of 
this section.
    (7) Review means the process of examining documents located in 
response to a commercial use request (see definition of commercial use 
request in this section) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure in response to a commercial use 
request, e.g., doing all that is necessary to excise them and otherwise 
prepare them for release. The term review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (8) Search means all the time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. Searches may be done 
manually or by computer using existing programs. The most efficient and 
least expensive manner of searching for material will be used to 
minimize costs to VA and the requester. For example, line-by-line 
searches will not be conducted when duplicating an entire document is 
the least expensive and quicker method of complying with a request. The 
term search does not cover the time spent to review documents to 
determine whether all or portions thereof can be withheld under one

[[Page 61]]

of the nine categories of exemptions identified in Sec. 1.554 of this 
part.
    (b) Fees to be charged. (1) Except as provided in paragraphs (c), 
(d), (f) and (g) of this section, the Department of Veterans Affairs 
will charge fees that recoup the full allowable direct costs for 
responding to each request from the public. Such fees will be charged in 
accordance with the schedule of fees in paragraph (e) of this section, 
and other requirements or restrictions in this regulation. The most 
efficient and least costly methods will be used to comply with requests 
for documents made under the FOIA.
    (2) If it is estimated that charges for duplication determined by 
using the fee schedule in Sec. 1.555(e) of this part are likely to 
exceed $25, the requester will be notified of the estimated amount of 
fees, unless the requester has indicated in advance his or her 
willingness to pay fees as high as those anticipated. Such notice will 
offer the requester the opportunity to confer with Department personnel 
with the object of reformulating the request to meet his or her needs at 
a lower cost.
    (3) Each administration and staff office upon approval of the 
Secretary is authorized to contract with private sector services to 
locate, reproduce, and disseminate records in response to FOIA requests 
when that is the most efficient and least costly method. If a contractor 
is used, the ultimate cost to the requester can be no greater than it 
would if the administration, staff office, or field facility performed 
the task, itself. In no case may a administration, staff office, or 
field facility contract out responsibilities which the FOIA provides 
that they alone may discharge, such as determining the applicability of 
an exemption, or determining whether to waive or reduce fees.
    (4) When documents that would be responsive to a request are 
maintained for distribution by agencies operating statutory-based fee 
schedule programs, in which the agency is required to set the level of 
fees for particular types of records, such as the National Technical 
Information Service or the Government Printing Office, the requester of 
such documents will be informed of the steps necessary to obtain records 
from those sources, rather than from VA.
    (c) Restrictions on assessing fees. With the exception of commercial 
use requests no charges will be assessed for the first 100 pages of 
duplication and the first two hours of search time. Moreover, no fees 
are to be charged any requester, including commercial use requesters, if 
the cost of collecting the fee is equal to or greater than the fee 
itself. These provisions work together so that, except for commercial 
use requests, fees will not be assessed until the free search and 
duplication have been provided. For example, if a request takes two 
hours and ten minutes of search time and results in 105 reproduced pages 
of documents, fees can be charged for only 10 minutes of search time and 
for only five pages of reproduction. If this cost were equal to or less 
than the cost to VA of billing the requester and processing the fee 
collected, no charges would be assessed. (NOTE: The cost of collecting 
fees are VA's administrative costs of receiving and recording a 
requester's remittance, and processing the fee for deposit in the 
Treasury Department's special account. The cost is determined to be 
negligible. The per-transaction costs to the Treasury to handle such 
remittances is negligible and will not be considered in the Department's 
determination.)
    (1) For purposes of the restriction on assessing fees, the word 
pages refers to one-sided paper copies of the standard sizes 8\1/
2\ x 11 or 8\1/2\ x 14 or 11 
 x 14. Accordingly, requesters will not be 
entitled to 100 microfiche or 100 computer disks free. One microfiche 
containing the equivalent of 100 pages or 100 pages of computer printout 
might meet the terms of the restriction.
    (2) The term search time in this context is based on manual 
searches. To calculate the computer search time for the purpose of 
applying the two-hour search restriction, the hourly cost of operating 
the computer's central processing unit will be combined with the 
operator's hourly salary, plus 16 percent of the salary. When the cost 
of the search (including the operator time and the cost of the computer 
to process a request) equals the equivalent dollar amount of two hours 
of the salary of

[[Page 62]]

the person performing the search, i.e., the operator, charges will begin 
to be assessed for a computer search.
    (d) Categories of requesters and fees to be charged each category. 
There are four categories of FOIA requesters: Commercial use requesters; 
educational and non-commercial scientific institutional requesters; 
requesters who are representatives of news media; and all other 
requesters. Specific levels of fees will be charged for each of these 
categories as follows:
    (1) Commercial use requesters. When a request for documents for 
commercial use is received, the full direct costs of searching for, 
reviewing for release, and duplicating the records sought will be 
charged to the requester. Commercial use requesters are not entitled to 
two hours of free search time nor 100 free pages of reproduced 
documents. Moreover, the commercial use requester will be charged the 
cost of searching for and reviewing records even if there is ultimately 
no disclosure of records. The requester must reasonably describe the 
records sought.
    (2) Educational and non-commercial scientific institution 
requesters. These requesters will be charged only for the cost of 
reproduction, excluding charges for the first 100 pages. In order to be 
considered a member of this category, a requester must show that the 
request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use. If the request is from an educational institution, the 
requester must show that the records sought are in furtherance of 
scholarly research. If the request is from a non-commercial scientific 
institution, the requester has to show that the records are sought in 
furtherance of scientific research. Information necessary to support a 
claim of being categorized as an educational or non-commercial 
scientific institution requester will be provided by the requester, and 
the requester must reasonably describe the records sought.
    (3) Representatives of news media. These requesters will be charged 
for the cost of reproduction, only, excluding charges for the first 100 
pages. To be included in this category, a requester must fall within the 
definition of a representative of the news media specified in paragraph 
(a)(vi) of this section, and the request must not be made for commercial 
use. A request for records supporting the news dissemination function of 
the requester will not be considered to be a request that is for 
commercial use. Requesters must reasonably describe the records sought.
    (4) All other requesters. Any requester that does not fit into any 
of the categories in this section will be charged fees which recover the 
full reasonable direct cost of searching for and reproducing records 
that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time will be furnished 
without charge. In addition, under certain circumstances specified in 
paragraph (f) of this section, fees will be waived or reduced at the 
discretion of field facility heads, their designee, or responsible 
Central Office officials. Requests from VA beneficiaries, applicants for 
VA benefits, or other individuals for records retrievable by their name 
or other personal identifier will initially be processed under 38 U.S.C. 
5701 and 5 U.S.C. 552a and will be assessed fees in accordance with the 
applicable fee provisions of Sec. 1.526(i) or Sec. 1.577(f) of this 
part. To the extent that records are not disclosable under these 
provisions, the disclosure of such records will be evaluated under 
Sec. Sec. 1.550 through 1.559 of this part, and fees will be assessed 
under paragraph (e) of this section. Requesters must reasonably describe 
the records sought.
    (e) Schedule of fees:

------------------------------------------------------------------------
              Activity                               Fees
------------------------------------------------------------------------
(1) Duplication of documents by any  $0.15 per page.
 type of reproduction process to
 produce plain one-sided paper
 copies of a standard size (8\1/
 2\ x 11; 8\1/
 2\ x 14;
 11 x 14).
(2) Duplication of non-paper         Actual direct cost to the Agency.
 records, such as microforms,         (See paragraph (a)(2) of this
 audiovisual materials (motion        section and, if costs are likely
 pictures, slides, laser optical      to exceed $25.00, paragraph (b)(2)
 disks, video tapes, audiotapes,      of this section.
 etc.) computer tapes and disks,
 diskettes for personal computers,
 and any other automated media
 output.

[[Page 63]]

 
(3) Duplication of documents by any  Actual direct cost to the Agency.
 type of reproduction process not     (See paragraph (a)(2) of this
 covered by paragraphs (e)(1) and     section and, if costs are likely
 (2) of this section to produce a     to exceed $25.00, paragraph (b)(2)
 copy in a form reasonably usable     of this section.
 by the requester.
(4) Document search by manual (non-  Basic hourly salary rate of the
 automated) methods.                  employee(s) performing the search,
                                      plus 16 percent. (If costs are
                                      likely to exceed $25.00, see
                                      paragraph (g)(2) of this section.)
 
(Note-- If a department, staff office or field station uses exclusively
 a single class of personnel, e.g., all administrative/clerical or all
 professional/executive, an average rate for the range of grades
 involved may be used).
 
(5) Document search using automated  Actual direct cost to perform
 methods, such as by computer.        search. (See paragraph (c)(2) of
                                      this section, and, if costs are
                                      likely to exceed $25.00, see
                                      paragraph (g)(2) of this section.)
(6) Document review (use only for    Basic hourly salary rate of
 commercial use requesters).          employee(s) performing initial
                                      review to determine whether to
                                      release document(s) or portions of
                                      records, plus 16 percent.
 
(Note. Charge for document reviews covers only the time spent reviewing
 the document(s) at the initial administrative level to determine
 applicability of a specific FOIA exemption to a particular record or
 portion of a record. It does not cover any review incurred at the
 administrative appeal level once the initial exemptions are applied.
 However, records or portions of records withheld in full under an
 exemption which is subsequently determined not to apply may be reviewed
 again to determine the applicability of other exemptions not previously
 considered. The cost for such a subsequent review may be properly
 assessed).
 
(7) Other charges: Certifying that   Where applicable, assess under
 records are true copies; Sending     provisions of Sec. Sec.
 records by special methods such as   1.526(i) and (j) of this part,
 express mail.                        otherwise actual direct cost of
                                      service performed.
------------------------------------------------------------------------

    (f) Waiving or reducing fees. (1) Fees for records and services 
provided in response to a FOIA request will be waived or reduced when it 
is determined by responsible Central Office officials or field station 
heads or their designee that furnishing the document(s) is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester.
    (2) The following factors will be considered in sequence in 
determining whether disclosure of information is in the public interest 
because it is likely to contribute significantly to the public 
understanding of the operations or activities of the government:
    (i) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the government;
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is likely to contribute to an understanding of 
government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to public understanding; and
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute significantly to public 
understanding of government operations or activities.
    (3) The following factors will be considered in sequence in 
determining whether disclosure of information is primarily in the 
commercial interest of the requester:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and, if so
    (ii) The primary interest in disclosure: Whether the magnitude of 
the

[[Page 64]]

identified commercial interest of the requester is sufficiently large, 
in comparison with the public interest in disclosure, that disclosure is 
primarily in the commercial interest of the requester.
    (4) An appeal from an adverse fee waiver or reduction determination 
will be processed in the same manner as described in Sec. 1.557 of this 
part.
    (g) Other administrative considerations to improve assessment and 
collection of fees--(1) Charging interest--notice and rate. The 
Department of Veterans Affairs may charge interest to those requesters 
who fail to timely pay fees assessed in accordance with these 
regulations. Determination to charge interest will be made by the 
responsible Central Office official or field facility head or designee. 
Interest will be assessed on the unpaid bill beginning on the 31st day 
following the day on which the original building was sent. Interest will 
be at the rate prescribed in section 3717 of title 31 U.S.C., and will 
accrue from the date of the billing. Accounting procedures ensure that a 
requester who has remitted the full amount within the time period is 
properly credited with the payment. The fact that the fee has been 
received by VA, even if not processed, will suffice to stay the accrual 
of interest.
    (2) Charges for unsuccessful search. When it is determined by the 
responsible Central Office official or field facility head or designee, 
charges for searching may be assessed, even if records are not located 
to satisfy a request or if records located are determined to be exempt 
from disclosure. If it is determined that search charges are likely to 
exceed $25, the requester will be notified of the estimated amount of 
fees, unless the requester has indicated in advance a willingness to pay 
fees as high as those anticipated. Such notice will offer the requester 
the opportunity to confer with agency personnel with the object of 
reformulating the request to meet his or her needs at a lower cost.
    (3) Aggregating requests. When the responsible Central Office 
official or field facility head or designee reasonably believes that a 
requester or, on rare occasions, a group of requesters acting in 
concert, is attempting to break a request down into a series of requests 
for the purpose of evading the assessment of fees, the responsible 
Central Office official, or field facility head or designee may 
aggregate (combine) any such requests and charge accordingly. One 
element to consider in determining whether a belief would be reasonable 
is the time period in which the requests occurred. For example, it is 
reasonable to presume that multiple requests within a 30-day time period 
that seek portion(s) of the same document(s) is an attempt to avoid 
payment of charges. For requests made over a longer period, however, 
such presumption becomes harder to sustain. In each case, there must be 
a solid basis for determining that aggregation is warranted. Caution 
will be exercised before aggregating requests from more than one 
requester. There must be a concrete basis on which to conclude that the 
requesters are acting in concert and are acting specifically to avoid 
payment. In no case will multiple requests on unrelated subjects from 
one requester be aggregated.
    (4) Advance payments. The Department of Veterans Affairs may not 
require a requester to make an advance payment, i.e., payment before 
work is commenced or continued on a request, unless:
    (i) The allowable charges that a requester may be required to pay 
are likely to exceed $250. Then, the Department of Veterans Affairs 
should either notify the requester of the likely cost and obtain 
satisfactory assurance of full payment, or require an advance payment of 
an amount up to the full estimated charges in the case of requesters 
with no history of payment; or
    (ii) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
the Department of Veterans Affairs may require the requester to pay the 
full amount owed, plus any applicable interest as provided in paragraph 
(g)(1) of this section, or to demonstrate that he or she has, in fact, 
paid the fee, and to make an advance payment of the estimated fee before 
the Department begins to process a new request or a pending request from 
that requester.

[[Page 65]]

    (iii) If a requester is required to make advance payments, as 
described in this section, the time limits prescribed in Sec. 1.553a of 
this part, for responding to initial requests and appeals from initial 
denials, will begin only after the Department has received the advance 
fee payments.
    (5) Debt collection. In the event of non-payment of billed charges 
for disclosure of records, the procedures authorized by the Debt 
Collection Act of 1982 (Pub. L. 97-365) may be used. This may include 
disclosure to consumer reporting agencies and use of collection 
agencies.

(Authority: 5 U.S.C. 552(a)(4)(A))

[53 FR 10377, Mar. 31, 1988]



Sec. 1.556  Requests for other reasonably described records.

    Each administration, staff office, and field facility head will 
designate an employee(s) who will be responsible for initial action on 
(granting or denying) requests to inspect or obtain information from or 
copies of records under their jurisdiction and within the purview of 
Sec. 1.553. This responsibility includes maintaining a uniform listing 
of such requests. Data logged will consist of: Name and address of 
requester; date of receipt of request; brief description of request; 
action taken on request, granted or denied; citation of the specific 
section when request is denied; and date of reply to the requester. In 
the field a denial of any such request may be made only by the Director 
or the designated employee and in Central Office only by the 
administration or staff office head or designee. The letter notifying 
the requester of the denial will be signed by the official making the 
denial decision. Any legal question arising in a field station 
concerning the release of information will be referred to the 
appropriate Regional Counsel for disposition as contemplated by Sec. 
13.401* of this chapter. In Central Office such legal questions will be 
referred to the General Counsel. Any administrative question will be 
referred through administrative channels to the appropriate 
administration or staff office head. All denials or proposed denials at 
the Central Office level will be coordinated with the Director, 
Information Service as well as the General Counsel.
---------------------------------------------------------------------------

    *Editorial Note: At 42 FR 41410, Aug. 17, 1977, Sec. 13.401 was 
removed.

[40 FR 12658, Mar. 20, 1975]



Sec. 1.557  Administrative review.

    (a) Upon denial of a request, the responsible Department of Veterans 
Affairs official or designated employee will inform the requester in 
writing of the denial, cite the specific exemption in Sec. 1.554 upon 
which the denial is based, set forth the names and titles or positions 
of each person responsible for the denial of such request, and advise 
that the denial may be appealed to the General Counsel.
    (b) The final agency decision in such appeals will be made by the 
General Counsel or the Deputy General Counsel.

[40 FR 12658, Mar. 20, 1975, as amended at 55 FR 21546, May 25, 1990]



Sec. Sec. 1.558-1.559  [Reserved]

  Safeguarding Personal Information in Department of Veterans Affairs 
                                 Records

    Note: Sections 1.575 through 1.584 concern the safeguarding of 
individual privacy from the misuse of information from files, records, 
reports, and other papers and documents in Department of Veterans 
Affairs custody. As to the release of information from Department of 
Veterans Affairs claimant records see Sec. 1.500 series. As to the 
release of information from Department of Veterans Affairs records other 
than claimant records see Sec. 1.550 series. Section 1.575 series 
implement the provisions of Pub. L. 93-579, December 31, 1974, adding a 
section 552a to title 5 U.S.C. providing that individuals be granted 
access to records concerning them which are maintained by Federal 
agencies, and for other purposes.

    Source: 40 FR 33944, Aug. 12, 1975, unless otherwise noted.



Sec. 1.575  Social security numbers in veterans' benefits matters.

    (a) Except as provided in paragraph (b) of this section, no one will 
be denied any right, benefit, or privilege provided by law because of 
refusal to disclose to the Department of Veterans Affairs a social 
security number.

[[Page 66]]

    (b) VA shall require mandatory disclosure of a claimant's or 
beneficiary's social security number (including the social security 
number of a dependent of a claimant or beneficiary) on necessary forms 
as prescribed by the Secretary as a condition precedent to receipt or 
continuation of receipt of compensation or pension payable under the 
provisions of chapters 11, 13 and 15 of title 38, United States Code, 
provided, however, that a claimant shall not be required to furnish VA 
with a social security number for any person to whom a social security 
number has not been assigned. VA may also require mandatory disclosure 
of an applicant's social security number as a condition for receiving 
loan guaranty benefits and a social security number or other taxpayer 
identification number from existing direct and vendee loan borrowers and 
as a condition precedent to receipt of a VA-guaranteed loan, direct loan 
or vendee loan, under chapter 37 of title 38, United States Code. (Pub. 
L. 97-365, sec. 4)
    (c) A person requested by VA to disclose a social security number 
shall be told, as prescribed by Sec. 1.578(c), whether disclosure is 
voluntary or mandatory. The person shall also be told that VA is 
requesting the social security number under the authority of title 38 
U.S.C., or in the case of existing direct or vendee loan borrowers, 
under the authority of 26 U.S.C. 6109(a) in conjunction with sections 
145 and 148 of Pub. L. 98-369, or in the case of loan applicants, under 
the authority of section 4 of Pub. L. 97-365. The person shall also be 
told that it will be used in the administration of veterans' benefits in 
the identification of veterans or persons claiming or receiving VA 
benefits and their records, that it may be used in making reports to the 
Internal Revenue Service where required by law, and to determine whether 
a loan guaranty applicant has been identified as a delinquent taxpayer 
by the Internal Revenue Service, and that such taxpayers may have their 
loan applications rejected, and that it may be used to verify social 
security benefit entitlement (including amounts payable) with the Social 
Security Administration and, for other purposes where authorized by both 
title 38 U.S.C., and the Privacy Act of 1974, (Pub. L. 93-579), or, 
where required by another statute. (Pub. L. 97-365, sec. 4)

(Authority: 38 U.S.C. 5101)

[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986; 
56 FR 25044, June 3, 1991]



Sec. 1.576  General policies, conditions of disclosure, accounting of 
certain disclosures, and definitions.

    (a) The Department of Veterans Affairs will safeguard an individual 
against an invasion of personal privacy. Except as otherwise provided by 
law or regulation its officials and employees will:
    (1) Permit an individual to determine what records pertaining to him 
or her will be collected, maintained, used, or disseminated by the 
Department of Veterans Affairs.
    (2) Permit an individual to prevent records pertaining to him or 
her, obtained by the Department of Veterans Affairs for a particular 
purpose, from being used or made available for another purpose without 
his or her consent.
    (3) Permit an individual to gain access to information pertaining to 
him or her in Department of Veterans Affairs records, to have a copy 
made of all or any portion thereof, and to correct or amend such 
records.
    (4) Collect, maintain, use, or disseminate any record of 
identifiable personal information in a manner that assures that such 
action is for a necessary and lawful purpose, that the information is 
correct and accurate for its intended use, and that adequate safeguards 
are provided to prevent misuse of such information.
    (5) Permit exemptions from records requirements provided in 5 U.S.C. 
552a only where an important public policy need for such exemption has 
been determined pursuant to specific statutory authority.
    (b) The Department of Veterans Affairs will not disclose any record 
contained in a system of records by any means of communication to any 
person or any other agency except by written request of or prior written 
consent of the individual to whom the record pertains unless such 
disclosure is:

[[Page 67]]

    (1) To those officers and employees of the agency which maintains 
the record and who have a need for the record in the performance of 
their duties;
    (2) Required under 5 U.S.C. 552;
    (3) For a routine use of the record compatible with the purpose for 
which it was collected;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to title 13 U.S.C.;
    (5) To a recipient who has provided the Department of Veterans 
Affairs with advance adequate written assurance that the record will be 
used solely as a statistical research or reporting record, and the 
record is to be transferred in a form that is not individually 
identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or designee to determine whether the 
record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Department of Veterans Affairs specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (9) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (10) To the Comptroller General, or any authorized representatives, 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (c) With respect to each system of records (i.e., a group of records 
from which information is retrieved by the name of the individual or by 
some identifying number, symbol, or other identifying particular 
assigned to the individual) under Department of Veterans Affairs 
control, the Department of Veterans Affairs will (except for disclosures 
made under paragraph (b)(1) or (2) of this section) keep an accurate 
accounting as follows:
    (1) For each disclosure of a record to any person or to another 
agency made under paragraph (b) of this section, maintain information 
consisting of the date, nature, and purpose of each disclosure, and the 
name and address of the person or agency to whom the disclosure is made;
    (2) Retain the accounting made under paragraph (c)(1) of this 
section for at least 5 years or the life of the record, whichever is 
longer, after the disclosure for which the accounting is made;
    (3) Except for disclosures made under paragraph (b)(7) of this 
section, make the accounting under paragraph (c)(1) of this section 
available to the individual named in the record at his or her request; 
and
    (4) Inform any person or other agency about any correction or 
notation of dispute made by the agency in accordance with Sec. 1.579 of 
any record that has been disclosed to the person or agency if an 
accounting of the disclosure was made.
    (d) For the purposes of Sec. Sec. 1.575 through 1.584, the parent 
of any minor, or the legal guardian of any individual who has been 
declared incompetent due to physical or mental incapacity or age by a 
court of competent jurisdiction, may act on behalf of the individual.
    (e) Section 552a(i), title 5 U.S.C., provides that:
    (1) Any officer or employee of the Department of Veterans Affairs, 
who by virtue of his or her employment or official position, has 
possession of, or access to, Department of Veterans Affairs records 
which contain individually identifiable information the disclosure of 
which is prohibited by 5 U.S.C. 552a or by Sec. 1.575 series 
established thereunder, and who knowing that disclosure of the specific 
material is so prohibited, willfully discloses the material

[[Page 68]]

in any manner to any person or agency not entitled to receive it, shall 
be guilty of a misdemeanor and fined not more than $5,000.
    (2) Any officer or employee of the Department of Veterans Affairs 
who willfully maintains a system of records without meeting the notice 
requirements of 5 U.S.C. 552a(e)(4) (see Sec. 1.578(d)) shall be guilty 
of a misdemeanor and fined not more than $5,000.
    (3) Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Department of Veterans Affairs 
under false pretenses shall be guilty of a misdemeanor and fined not 
more than $5,000.
    (f) For purposes of Sec. 1.575 series the following definitions 
apply:
    (1) The term agency includes any executive department, military 
department, Government corporation, Government controlled corporation, 
or other establishment in the executive branch of the government 
(including the Executive Office of the President), or any independent 
regulatory agency.
    (2) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (3) The term maintain includes maintain, collect, use, or 
disseminate.
    (4) The term record means any item, collection, or grouping of 
information about an individual that is maintained by an agency, 
including, but not limited to, his or her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his or her name, or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
finger or voice print or a photograph.
    (5) The term system of records means a group of any records under 
the control of any agency from which information is retrieved by the 
name of the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (6) The term statistical record means a record in a system of 
records maintained for statistical research or reporting purposes only 
and not used in whole or in part in making any determination about an 
identifiable individual except as provided by section 8 of title 13 
U.S.C.
    (7) The term routine use means, with respect to the disclosure of a 
record, the use of such record for a purpose which is compatible with 
the purpose for which it was collected.
    (g) When the Department of Veterans Affairs provides by a contract 
for the operation by or on behalf of the Department of Veterans Affairs 
of a system of records to accomplish a Department of Veterans Affairs 
function, the Department of Veterans Affairs will, consistent with its 
authority, cause the requirements of 5 U.S.C. 552a (as required by 
subsection (m)) and those of the Sec. 1.575 series to be applied to 
such system. For the purposes of 5 U.S.C. 552a(i) and Sec. 1.576(e) any 
such contractor and any employee of such contractor, if such contract is 
agreed to on or after September 27, 1975, will be considered to be an 
employee of the Department of Veterans Affairs.
    (h) The Department of Veterans Affairs will, for the purposes of 5 
U.S.C. 552a, consider that it maintains any agency record which it 
deposits with the Administrator of General Services for storage, 
processing, and servicing in accordance with section 3103 of title 44 
U.S.C. Any such record will be considered subject to the provisions of 
Sec. 1.575 series implementing 5 U.S.C. 552a and any other applicable 
Department of Veterans Affairs regulations. The Administrator of General 
Services is not authorized to disclose such a record except to the 
Department of Veterans Affairs, or under regulations established by the 
Department of Veterans Affairs which are not inconsistent with 5 U.S.C. 
552a.
    (i) The Department of Veterans Affairs will, for the purposes of 5 
U.S.C. 552a, consider that a record is maintained by the National 
Archives of the United States if it pertains to an identifiable 
individual and was transferred to the National Archives prior to 
September 27, 1975, as a record which has sufficient historical or other 
value to warrant its continued preservation by the United States 
Government. Such records are not subject to the provisions of 5 U.S.C. 
552a except that a statement generally describing such

[[Page 69]]

records (modeled after the requirements relating to records subject to 
subsections (e)(4)(A) through (G) of 5 U.S.C. 552a) will be published in 
the Federal Register.
    (j) The Department of Veterans Affairs will also, for the purposes 
of 5 U.S.C. 552a, consider that a record is maintained by the National 
Archives of the United States if it pertains to an identifiable 
individual and is transferred to the National Archives on or after 
September 27, 1975, as a record which has sufficient historical or other 
value to warrant its continued preservation by the United States 
Government. Such records are exempt from the requirements of 5 U.S.C. 
552a except subsections (e)(4) (A) through (G) and (e)(9) thereof.

(Authority: 38 U.S.C. 501)

[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975; 
47 FR 16323, Apr. 16, 1982]



Sec. 1.577  Access to records.

    (a) Except as otherwise provided by law or regulation any individual 
upon request may gain access to his or her record or to any information 
pertaining to him or her which is contained in any system of records 
maintained by the Department of Veterans Affairs. The individual will be 
permitted, and upon his or her request, a person of his or her own 
choosing permitted to accompany him or her, to review the record and 
have a copy made of all or any portion thereof in a form comprehensible 
to him or her. The Department of Veterans Affairs will require, however, 
a written statement from the individual authorizing discussion of that 
individual's record in the accompanying person's presence.
    (b) Any individual will be notified, upon request, if any Department 
of Veterans Affairs system of records named contains a record pertaining 
to him or her. Such request must be in writing, over the signature of 
the requester. The request must contain a reasonable description of the 
Department of Veterans Affairs system or systems of records involved, as 
described at least annually by notice published in the Federal Register 
describing the existence and character of the Department of Veterans 
Affairs system or systems of records pursuant to Sec. 1.578(d). The 
request should be made to the office concerned (having jurisdiction over 
the system or systems of records involved) or, if not known, to the 
Director or Department of Veterans Affairs Officer in the nearest 
Department of Veterans Affairs regional office, or to the Department of 
Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC 
20420. Personal contact should normally be made during the regular duty 
hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday 
through Friday for Department of Veterans Affairs Central Office and 
most field facilities. Identification of the individual requesting the 
information will be required and will consist of the requester's name, 
signature, address, and claim, insurance or other identifying file 
number, if any, as a minimum. Additional identifying data or documents 
may be required in specified categories as determined by operating 
requirements and established and publicized by the promulgation of 
Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))
    (c) The department or staff office having jurisdiction over the 
records involved will establish appropriate disclosure procedures and 
will notify the individual requesting disclosure of his or her record or 
information pertaining to him or her of the time, place and conditions 
under which the Department of Veterans Affairs will comply to the extent 
permitted by law and Department of Veterans Affairs regulation. (5 
U.S.C. 552a(f)(2))
    (d) Access to sensitive material in rec ords, including medical and 
psychological records, is subject to the following special procedures. 
When an individual requests access to his or her rec ords, the 
Department of Veterans Affairs official responsible for administering 
those records will review them and identify the presence of any 
sensitive records. Sensitive records are those that contain information 
which may have a serious adverse effect on the individual's mental or 
physical health if they are disclosed to him or her. If, on review of 
the records, the Department of Veterans Affairs official concludes that 
there are sensitive

[[Page 70]]

records involved, the official will refer the records to a Department of 
Veterans Affairs physician, other than a rating board physician, for 
further review. If the physician who reviews the records believes that 
disclosure of the information directly to the individual could have an 
adverse effect on the physical or mental health of the individual, the 
responsible Department of Veterans Affairs official will then advise the 
requesting individual: (1) That the Department of Veterans Affairs will 
disclose the sensitive records to a physician or other professional 
person selected by the requesting individual for such redisclosure as 
the professional person may believe is indicated, and (2) in indicated 
cases, that the Department of Veterans Affairs will arrange for the 
individual to report to a Department of Veterans Affairs facility for a 
discussion of his or her records with a designated Department of 
Veterans Affairs physician and for an explanation of what is included in 
the records. Following such discussion, the records should be disclosed 
to the individual; however, in those extraordinary cases where a careful 
and conscientious explanation of the information considered harmful in 
the record has been made by a Department of Veterans Affairs physician 
and where it is still the physician's professional medical opinion that 
physical access to the information could be physically or mentally 
harmful to the patient, physical access may be denied. Such a denial 
situation should be an unusual, very infrequent occurrence. When denial 
of a request for direct physical access is made, the responsible 
Department of Veterans Affairs official will: (1) Promptly advise the 
individual making the request of the denial; (2) state the reasons for 
the denial of the request (e.g., 5 U.S.C. 552a(f)(3), 38 U.S.C. 
5701(b)(1)); and (3) advise the requester that the denial may be 
appealed to the General Counsel and of the procedure for such an 
appeal.(Authority: 5 U.S.C. 552a(f)(3))
    (e) Nothing in 5 U.S.C. 552a, however, allows an individual access 
to any information compiled in reasonable anticipation of civil action 
or proceeding. (5 U.S.C. 552a(d)(5))
    (f) Fees to be charged, if any, to any individual for making copies 
of his or her record shall not include the cost of any search for and 
review of the record, and will be as follows:

------------------------------------------------------------------------
              Activity                               Fees
------------------------------------------------------------------------
(1) Duplication of documents by any  $0.15 per page after first 100 one-
 type of reproduction process to      sided pages.
 produce plain one-sided paper
 copies of a standard size (8\1/
 2\ x 11; 8\1/
 2\ x 14;
 11x14).
(2) Duplication of non-paper         Actual direct cost to the Agency as
 records, such as microforms,         defined in Sec. 1.555(a)(2) of
 audiovisual materials (motion        this part to the extent that it
 pictures, slides, laser optical      pertains to the cost of
 disks, video tapes, audio tapes,     duplication.
 etc.), computer tapes and disks,
 diskettes for personal computers,
 and any other automated media
 output.
(3) Duplication of document by any   Actual direct cost to the Agency as
 type of reproduction process not     defined in Sec. 1.555(a)(2) of
 covered by paragraphs (f)(1) or      this part to the extent that it
 (2) of this section to produce a     pertains to the cost of
 copy in a form reasonably usable     duplication.
 by the requester.
------------------------------------------------------------------------

    Note. Fees for any activities other than duplication by any type of 
reproducing process will be assessed under the provisions of Sec. 
1.526(i) or (j) of this part of any other applicable law.)
    (g) When VA benefit records, which are retrievable by name or 
individual identifier of a VA beneficiary or applicant for VA benefits, 
are requested by the individual to whom the record pertains, the 
duplication fee for one complete set of such records will be waived.

(Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)

[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982; 
53 FR 10380, Mar. 31, 1988; 55 FR 21546, May 25, 1990]



Sec. 1.578  [Reserved]



Sec. 1.579  Amendment of records.

    (a) Any individual may request amendment of any Department of 
Veterans Affairs record pertaining to him

[[Page 71]]

or her. Not later than 10 days (excluding Saturdays, Sundays, and legal 
public holidays) after the date or receipt of such request, the 
Department of Veterans Affairs will acknowledge in writing such receipt. 
The Department of Veterans Affairs will complete the review to amend or 
correct a record as soon as reasonably possible, normally within 30 days 
from the receipt of the request (excluding Saturdays, Sundays, and legal 
public holidays) unless unusual circumstances preclude completing action 
within that time. The Department of Veterans Affairs will promptly 
either:
    (1) Correct any part thereof which the individual believes is not 
accurate, relevant, timely or complete; or
    (2) Inform the individual of the Department of Veterans Affairs 
refusal to amend the record in accordance with his or her request, the 
reason for the refusal, the procedures by which the individual may 
request a review of that refusal by the Secretary or designee, and the 
name and address of such official.


(Authority: 5 U.S.C. 552a(d)(2))

    (b) The administration or staff office having jurisdiction over the 
records involved will establish procedures for reviewing a request from 
an individual concerning the amendment of any record or information 
pertaining to the individual, for making a determination on the request, 
for an appeal within the Department of Veterans Affairs of an initial 
adverse Department of Veterans Affairs determination, and for whatever 
additional means may be necessary for each individual to be able to 
exercise fully, his or her right under 5 U.S.C. 552a.
    (1) Headquarters officials designated as responsible for the 
amendment of records or information located in Central Office and under 
their jurisdiction include, but are not limited to: Secretary; Deputy 
Secretary, as well as other appropriate individuals responsible for the 
conduct of business within the various Department of Veterans Affairs 
administrations and staff offices. These officials will determine and 
advise the requester of the identifying information required to relate 
the request to the appropriate record, evaluate and grant or deny 
requests to amend, review initial adverse determinations upon request, 
and assist requesters desiring to amend or appeal initial adverse 
determinations or learn further of the provisions for judicial review.
    (2) The following field officials are designated as responsible for 
the amendment of records or information located in facilities under 
their jurisdiction, as appropriate: The Director of each Center, 
Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply 
Depot, and Regional Counsels. These officials will function in the same 
manner at field facilities as that specified in the preceding 
subparagraph for headquarters officials in Central Office.


(Authority: 5 U.S.C. 552a(f)(4))

    (c) Any individual who disagrees with the Department of Veterans 
Affairs refusal to amend his or her record may request a review of such 
refusal. The Department of Veterans Affairs will complete such review 
not later than 30 days (excluding Saturdays, Sundays, and legal public 
holidays) from the date on which the individual request such review and 
make a final determination unless, for good cause shown, the Secretary 
extends such 30-day period. If, after review, the Secretary or designee 
also refuses to amend the record in accordance with the request the 
individual will be advised of the right to file with the Department of 
Veterans Affairs a concise statement setting forth the reasons for his 
or her disagreement with the Department of Veterans Affairs refusal and 
also advise of the provisions for judicial review of the reviewing 
official's determination. (5 U.S.C. 552a(g)(1)(A))
    (d) In any disclosure, containing information about which the 
individual has filed a statement of disagreement, occurring after the 
filing of the statement under paragraph (c) of this section, the 
Department of Veterans Affairs will clearly note any part of the record 
which is disputed and provide copies of the statement (and, if the 
Department of Veterans Affairs deems it appropriate, copies of a concise 
statement of the Department of Veterans Affairs reasons for not making 
the

[[Page 72]]

amendments requested) to persons or other agencies to whom the disputed 
record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

[47 FR 16324, Apr. 16, 1982]



Sec. 1.580  Administrative review.

    (a) Upon denial or a request under 38 CFR 1.577 or 1.579, the 
responsible Department of Veterans Affairs official or designated 
employee will inform the requester in writing of the denial, cite the 
reason or reasons and the Department of Veterans Affairs regulations 
upon which the denial is based, and advise that the denial may be 
appealed to the General Counsel.
    (b) The final agency decision in such appeals will be made by the 
General counsel or the Deputy General Counsel.

(Authority: 38 U.S.C. 501)

[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982; 
55 FR 21546, May 25, 1990]



Sec. 1.581  [Reserved]



Sec. 1.582  Exemptions.

    (a) Certain systems of records maintained by the Department of 
Veterans Affairs are exempted from provisions of the Privacy Act in 
accordance with exemptions (j) and (k) of 5 U.S.C. 552a.
    (b) Exemption of Inspector General Systems of Records. The 
Department of Veterans Affairs provides limited access to Inspector 
General Systems of Records as indicated.
    (1) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d), 
(e)(1), (2) and (3), (e)(4) (G), (H) and (I), (e)(5) and (8), (f) and 
(g) of 5 U.S.C. 552a; in addition, the following systems of records are 
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from 
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5 
U.S.C. 552a:
    (i) Investigation Reports of Persons Allegedly Involved in 
Irregularities Concerning VA and Federal Laws, Regulations, Programs, 
etc.--VA (11 VA51); and
    (ii) Inspector General Complaint Center Records--VA (66VA53).
    (2) These exemptions apply to the extent that information in those 
systems is subject to exemptions pursuant to 5 U.S.C. 552a (j)(2) and 
(k)(2).
    (3) For the reasons set forth, the systems of records listed under 
paragraph (b)(1) of this section are exempted under sections 552a (j)(2) 
and (k)(2) from the following provisions of 5 U.S.C. 552a:
    (i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must 
give an individual named in a record an accounting which reflects the 
disclosure of the record to other persons or agencies. This accounting 
must state the date, nature and purpose of each disclosure of the record 
and the name and address of the recipient. The application of this 
provision would alert subjects to the existence of the investigation and 
identify that such persons are subject of that investigation. Since 
release of such information to subjects would provide them with 
significant information concerning the nature of the investigation, it 
could result in the altering or destruction of derivative evidence which 
is obtained from third parties, improper influencing of witnesses, and 
other activities that could impede or compromise the investigation.
    (ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g) 
relate to an individual's right to be notified of the existence of 
records pertaining to such individual; requirements for identifying an 
individual who requests access to records; the agency procedures 
relating to access to records and the amendment of information contained 
in such records; and the civil remedies available to the individual in 
the event of adverse determinations by an agency concerning access to or 
amendment of information contained in record systems. This system is 
exempt from the foregoing provisions for the following reasons: To 
notify an individual at the individual's request of the existence of 
records in an investigative file pertaining to such individual or to 
grant access to an investigative file could interfere with investigative 
and enforcement proceedings, threaten the safety of individuals who have 
cooperated with authorities, constitute an unwarranted invasion of 
personal privacy of others, disclose the identity of confidential 
sources, reveal confidential information supplied by these

[[Page 73]]

sources, and disclose investigative techniques and procedures.
    (iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose investigative techniques 
and procedures and cause sources to refrain from giving such information 
because of fear of reprisal, or fear of breach of promises of anonymity 
and confidentiality. This could compromise the ability to conduct 
investigations and to identify, detect and apprehend violators. Even 
though the agency has claimed an exemption from this particular 
requirement, it still plans to generally identify the categories of 
records and the sources for these records in this system. However, for 
the reasons stated in paragraph (b)(3)(ii) of this section, this 
exemption is still being cited in the event an individual wants to know 
a specific source of information.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive order. These systems of records are exempt from the foregoing 
provisions because:
    (A) It is not possible to detect the relevance or necessity of 
specific information in the early stages of a criminal or other 
investigation.
    (B) Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary may ultimately be determined to be 
unnecessary. It is only after the information is evaluated that the 
relevance and necessity of such information can be established.
    (C) In any investigation the Inspector General may obtain 
information concerning the violations of laws other than those within 
the scope of his/her jurisdiction. In the interest of effective law 
enforcement, the Inspector General should retain this information as it 
may aid in establishing patterns of criminal activity and provide leads 
for those law enforcement agencies charged with enforcing other segments 
of civil or criminal law.
    (v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to 
the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The application of this provision would impair investigations of illegal 
acts, violations of the rules of conduct, merit system and any other 
misconduct for the following reasons:
    (A) In order to successfully verify a complaint, most information 
about a complainant or an individual under investigation must be 
obtained from third parties such as witnesses and informers. It is not 
feasible to rely upon the subject of the investigation as a source for 
information regarding his/her activities because of the subject's rights 
against self-incrimination and because of the inherent unreliability of 
the suspect's statements. Similarly, it is not always feasible to rely 
upon the complainant as a source of information regarding his/her 
involvement in an investigation.
    (B) The subject of an investigation will be alerted to the existence 
of an investigation if an attempt is made to obtain information from the 
subject. This would afford the individual the opportunity to conceal any 
criminal activities to avoid apprehension.
    (vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the 
subject of an investigation who is asked to supply information of:
    (A) The authority under which the information is sought and whether 
disclosure of the information is mandatory or voluntary;
    (B) The purposes for which the information is intended to be used;
    (C) The routine uses which may be made of the information; and
    (D) The effects on the subject, if any, of not providing the 
requested information. The reasons for exempting this system of records 
from the foregoing provision are as follows:
    (1) The disclosure to the subject of the purposes of the 
investigation as stated in paragraph (b)(3)(vi)(B) of this paragraph 
would provide the subject with substantial information relating to the 
nature of the investigation and could impede or compromise the 
investigation.

[[Page 74]]

    (2) If the complainant or the subject were informed of the 
information required by this provision, it could seriously interfere 
with undercover activities requiring disclosure of the authority under 
which the information is being requested. This could conceivably 
jeopardize undercover agents' identities and impair their safety, as 
well as impair the successful conclusion of the investigation.
    (3) Individuals may be contacted during preliminary information 
gathering in investigations before any individual is identified as the 
subject of an investigation. Informing the individual of the matters 
required by this provision would hinder or adversely affect any present 
or subsequent investigations.
    (vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with 
such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual in making any 
determination about an individual. Since the law defines maintain to 
include the collection of information, complying with this provision 
would prevent the collection of any data not shown to be accurate, 
relevant, timely, and complete at the moment of its collection. In 
gathering information during the course of an investigation it is not 
always possible to determine this prior to collection of the 
information. Facts are first gathered and then placed into a logical 
order which objectively proves or disproves criminal behavior on the 
part of the suspect. Material which may seem unrelated, irrelevant, 
incomplete, untimely, etc., may take on added meaning as an 
investigation progresses. The restrictions in this provision could 
interfere with the preparation of a complete investigative report.
    (viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable 
efforts to serve notice on an individual when any record on such 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. The notice 
requirement of this provision could prematurely reveal an ongoing 
criminal investigation to the subject of the investigation.
    (c) Exemption of Loan Guaranty Service, Veterans Benefits 
Administration, Systems of Records. The Department of Veterans Affairs 
provides limited access to Loan Guaranty Service, Veterans Benefits 
Administration, systems of records as indicated:
    (1) The following systems of records are exempted pursuant to the 
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1) 
and (e)(4) (G), (H) and (I) and (f):
    (i) Loan Guaranty Fee Personnel and Program Participant Records--VA 
(17VA26); and
    (ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant 
Records and Paraplegic Grant Application Records--VA (55VA26).
    (2) These exemptions apply to the extent that information in these 
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
    (3) For the reasons set forth, the systems of records listed under 
paragraph (c)(1) of this section are exempted under 5 U.S.C. 552a(k)(2) 
from the following provisions of 5 U.S.C. 552a:
    (i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request. These accountings must state the date, nature and purpose 
of each disclosure of the record and the name and address of the 
recipient. The application of this provision would alert subjects of an 
investigation to the existence of the investigation and that such 
persons are subjects of that investigation. Since release of such 
information to subjects of an investigation would provide the subjects 
with significant information concerning the nature of the investigation, 
it could result in the altering or destruction of documentary evidence, 
improper influencing of witnesses and other activities that could impede 
or compromise the investigation.
    (ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an 
individual's right to be notified of the existence of records pertaining 
to such individual; requirements for identifying an individual who 
requests access to records; and the agency procedures relating to access 
to records and the contest of information contained in such records. 
This system

[[Page 75]]

is exempt from the foregoing provisions for the following reasons: To 
notify an individual at the individual's request of the existence of 
records in an investigative file pertaining to such individual or to 
grant access to an investigative file could interfere with investigative 
and enforcement proceedings; constitute an unwarranted invasion of the 
personal privacy of others; disclose the identity of confidential 
sources and reveal confidential information supplied by these sources 
and disclose investigative techniques and procedures.
    (iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose investigative techniques 
and procedures and cause sources to refrain from giving such information 
because of fear of reprisal, or fear of breach of promises of anonymity 
and confidentiality. This would compromise the ability to conduct 
investigations. Even though the agency has claimed an exemption from 
this particular requirement, it still plans to generally identify the 
categories of records and the sources for these records in this system. 
However, for the reasons stated above, this exemption is still being 
cited in the event an individual wanted to know a specific source of 
information.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive order. This system of records is exempt from the foregoing 
provision because:
    (A) It is not possible to detect relevance or necessity of specific 
information in the early stages of an investigation.
    (B) Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    (C) In interviewing persons or obtaining other forms of evidence 
during an investigation, information may be supplied to the investigator 
which relates to matters incidental to the main purpose of the 
investigation but which is appropriate in a thorough investigation. 
Oftentimes, such information cannot readily be segregated.
    (4) The following system of records is exempt pursuant to the 
provisions of 5 U.S.C. 552a(k)(5) from subsections (c)(3), (d), (e)(1), 
(e)(4) (G), (H) and (I) and (f): Loan Guaranty Fee Personnel and Program 
Participant Records--VA (17 VA 26).
    (5) This exemption applies to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
    (6) For the reasons set forth, the system of records listed in 
paragraph (c)(4) of this section is exempt under 5 U.S.C. 552a(k)(5) 
from the following provisions of 5 U.S.C. 552a:
    (i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request. These accountings must state the date, nature and purpose 
of each disclosure of the record and the name and address of the 
recipient. The application of this provision would alert subjects of 
background suitability investigations to the existence of the 
investigation and reveal that such persons are subjects of that 
investigation. Since release of such information to subjects of an 
investigation would provide the subjects with significant information 
concerning the nature of the investigation, it could result in revealing 
the identity of a confidential source.
    (ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an 
individual's right to be notified of the existence of records pertaining 
to such individual; requirements for identifying an individual who 
requests access to records; and the agency procedures relating to access 
to records and the contest of information contained in such records. 
This system is exempt from the foregoing provisions for the following 
reasons: To notify an individual at the individual's request of the 
existence of records in an investigative file pertaining to such an 
individual or to grant access to an investigative file would disclose 
the

[[Page 76]]

identity of confidential sources and reveal confidential information 
supplied by these sources.
    (iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the 
categories of sources of records in each system of records. The 
application of this provision could disclose sufficient information to 
disclose the identity of a confidential source and cause sources to 
refrain from giving such information because of fear of reprisal, or 
fear of breach of promises of anonymity and confidentiality. This would 
compromise the ability to conduct background suitability investigations.
    (iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive order. This system of records is exempt from the foregoing 
provision because:
    (A) It is not possible to detect relevance and necessity of specific 
information from a confidential source in the early stages of an 
investigation.
    (B) Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established regarding suitability for VA approval as a fee appraiser or 
compliance inspector.
    (C) In interviewing persons or obtaining other forms of evidence 
during an investigation for suitability for VA approval, information may 
be supplied to the investigator which relates to matters incidental to 
the main purpose of the investigation but which is appropriate in a 
thorough investigation. Oftentimes, such information cannot readily be 
segregated and disclosure might jeopardize the identity of a 
confidential source.
    (d) Exemption of Police and Security Records. VA provides limited 
access to one Security and Law Enforcement System of Records, Police and 
Security Records--VA (103VA07B).
    (1) The investigations records and reports contained in this System 
of Records are exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy 
Act of 1974] from Privacy Act subsections (c)(3) and (c)(4); (d); (e)(1) 
through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), and (e)(8); (f); 
and (g); in addition, they are exempted [pursuant to 5 U.S.C. 552a(k)(2) 
of the Privacy Act of 1974] from Privacy Act subsections (c)(3); (d); 
(e)(1), (e)(4)(G) through (e)(4)(I); and (f).
    (2) These records contained in the Police and Security Records--VA 
(103VA076B) are exempted for the following reasons:
    (i) The application of Privacy Act subsection (c)(3) would alert 
subjects to the existence of the investigation and reveal that they are 
subjects of that investigation. Providing subjects with information 
concerning the nature of the investigation could result in alteration or 
destruction of evidence which is obtained from third parties, improper 
influencing of witnesses, and other activities that could impede or 
compromise the investigation.
    (ii) The application of Privacy Act subsections (c)(4); (d); 
(e)(4)(G) and (e)(4)(H); (f); and (g) could interfere with investigative 
and enforcement proceedings, threaten the safety of individuals who have 
cooperated with authorities, constitute an unwarranted invasion of 
personal privacy of others, disclose the identity of confidential 
sources, reveal confidential information supplied by these sources, and 
disclose investigative techniques and procedures.
    (iii) The application of Privacy Act subsection (e)(4)(I) could 
disclose investigative techniques and procedures and cause sources to 
refrain from giving such information because of fear of reprisal, or 
fear of breach of promises of anonymity and confidentiality. This could 
compromise the ability to conduct investigations and to identify, detect 
and apprehend violators. Even though the agency has claimed an exemption 
from this particular requirement, it still plans to generally identify 
the categories of records and the sources of these records in this 
system. However, for the reason stated in paragraph (d)(2)(ii) of this 
section, this exemption is still being cited in the event an individual 
wants to know a specific source of information.

[[Page 77]]

    (iv) These records contained in the Police and Security Records--VA 
(103VA076B) are exempt from Privacy Act subsection (e)(1) because it is 
not possible to detect the relevance or necessity of specific 
information in the early stages of a criminal or other investigation. 
Relevance and necessity are questions of judgment and timing. What 
appears relevant and necessary may ultimately be determined to be 
unnecessary. It is only after the information is evaluated that the 
relevance and necessity of such information can be established. In any 
investigation, the Office of Security and Law Enforcement may obtain 
information concerning violations of laws other than those within the 
scope of its jurisdiction. In the interest of effective law enforcement, 
the Office of Security and Law Enforcement should retain this 
information as it may aid in establishing patterns of criminal activity 
and provide leads for those law enforcement agencies charged with 
enforcing other segments of civil or criminal law.
    (v) The application of Privacy Act subsection (e)(2) would impair 
investigations of illegal acts, violations of the rules of conduct, 
merit system and any other misconduct for the following reasons:
    (A) In order to successfully verify a complaint, most information 
about a complainant or an individual under investigation must be 
obtained from third parties such as witnesses and informers. It is not 
feasible to rely upon the subject of the investigation as a source for 
information regarding his/her activities because of the subject's rights 
against self-incrimination and because of the inherent unreliability of 
the suspect's statements. Similarly, it is not always feasible to rely 
upon the complainant as a source of information regarding his/her 
involvement in an investigation.
    (B) The subject of an investigation will be alerted to the existence 
of an investigation if an attempt is made to obtain information from the 
subject. This would afford the individual the opportunity to conceal any 
criminal activities to avoid apprehension.
    (vi) The reasons for exempting these records in the Police and 
Security Records--VA (103VA07B) from Privacy Act subsection (e)(3) are 
as follows:
    (A) The disclosure to the subject of the purposes of the 
investigation would provide the subject with substantial information 
relating to the nature of the investigation and could impede or 
compromise the investigation.
    (B) Informing the complainant or the subject of the information 
required by this provision could seriously interfere with undercover 
activities, jeopardize the identities of undercover agents and impair 
their safety, and impair the successful conclusion of the investigation.
    (C) Individuals may be contacted during preliminary information 
gathering in investigations before any individual is identified as the 
subject of an investigation. Informing the individual of the matters 
required by this provision would hinder or adversely affect any present 
or subsequent investigations.
    (vii) Since the Privacy Act defines ``maintain'' to include the 
collection of information, complying with subsection (e)(5) would 
prevent the collection of any data not shown to be accurate, relevant, 
timely, and complete at the moment of its collection. In gathering 
information during the course of an investigation, it is not always 
possible to make this determination prior to collecting the information. 
Facts are first gathered and then placed into a logical order which 
objectively proves or disproves criminal behavior on the part of the 
suspect. Material that may seem unrelated, irrelevant, incomplete, 
untimely, etc., may take on added meaning as an investigation 
progresses. The restrictions in this provision could interfere with the 
preparation of a complete investigative report.
    (viii) The notice requirement of Privacy Act subsection (e)(8) could 
prematurely reveal an ongoing criminal investigation to the subject of 
the investigation.

(Authority: 5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)

[48 FR 29847, June 29, 1983, as amended at 68 FR 35298, June 13, 2003]

[[Page 78]]



Sec. Sec. 1.583-1.584  [Reserved]

        Inventions by Employees of Department of Veterans Affairs

    Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat. 
811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O. 
10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.



Sec. 1.650  Purpose.

    The purpose of these regulations is to prescribe the procedure to be 
followed in determining and protecting the respective rights of the 
United States Government and of Department of Veterans Affairs employees 
who make inventions.

[21 FR 10377, Dec. 28, 1956, as amended at 61 FR 29658, June 12, 1996]



Sec. 1.651  Definitions.

    The terms as used in the regulations concerning inventions by 
employees of the Department of Veterans Affairs are defined as follows:
    (a) The term invention includes any art, machine, manufacture, 
design, or composition of matter, or any new and useful improvement 
thereof, or any variety of plant, which is or may be patentable under 
the patent laws of the United States.
    (b) The term employee or Government employee means any officer or 
employee, civilian or military, of the Department of Veterans Affairs. 
Part-time, without compensation (WOC) employees and part-time 
consultants are included.
    (c) The term Secretary of Commerce means the Under Secretary of 
Commerce for Technology.

[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61 
FR 29658, June 12, 1996]



Sec. 1.652  Criteria for determining rights to employee inventions.

    (a) The criteria to be applied in determining the respective rights 
of the Government and of the employee-inventor in and to any invention 
subject to these provisions shall be in accordance with the Uniform 
Patent Policy regulations found at 37 CFR 501.6 and 501.7.
    (b) Ownership in and to inventions arising under Cooperative 
Research and Development Agreements (CRADAs) pursuant to 15 USC 3710a 
shall be governed by the provisions of the pertinent CRADA, as 
authorized by the Federal Technology Transfer Act.

(Authority: 15 U.S.C. 3710a; 37 CFR part 501)

[61 FR 29658, June 12, 1996]



Sec. 1.653  Delegation of authority.

    The General Counsel, Deputy General Counsel or Assistant General 
Counsel for Professional Staff Group IV is authorized to act for the 
Secretary of Veterans Affairs in matters concerning patents and 
inventions, unless otherwise required by law. The determination of 
rights to an invention as between the Government and the employee where 
there is no cooperative research and development agreement shall be made 
by the General Counsel, Deputy General Counsel or the Assistant General 
Counsel for Professional Staff Group IV, in accordance with 37 CFR part 
500.

[62 FR 14822, Mar. 28, 1997]



Sec. 1.654  Patenting of inventions.

    Any invention owned by the Government under the criteria as set 
forth in 37 CFR 501.6 should be protected by an application for a 
domestic patent and other necessary documents executed by the employee 
inventor prepared by or through the General Counsel, Deputy General 
Counsel or Assistant General Counsel for Professional Staff Group IV, 
unless some other agency has primary interest or it is decided to 
dedicate the invention to the public. Such dedication requires approval 
of the Secretary of Commerce. Applications on behalf of the Government 
for foreign patents may be made if determined to be in the public 
interest. The payment of necessary expenses in connection with any 
application filed or patent obtained under this section by the 
Department of Veterans Affairs is authorized.

[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61 
FR 29658, June 12, 1996; 62 FR 14822, Mar. 28, 1997]

[[Page 79]]



Sec. 1.655  Government license in invention of employee.

    If an invention is made by an employee and it is determined that the 
employee inventor is entitled to full ownership under 37 CFR 501.6, 
subject to a nonexclusive, irrevocable, royalty-free license in the 
Government with power to grant sublicenses for all Governmental 
purposes, it shall be the duty of the employee inventor to notify the 
Office of General Counsel of the status of the patent application, 
including the patent application number, so that the Department may 
protect the interests reserved to the Government under 37 CFR 501.6.

[61 FR 29658, June 12, 1996]



Sec. 1.656  Information to be submitted by inventor.

    (a) In the case of an invention or believed invention, the inventor 
will prepare a statement for submission to his or her immediate 
superior. It will be submitted regardless of where the ownership is 
believed to exist. The statement will consist of two parts:
    (1) One part of the statement will be a disclosure of the invention 
sufficient to permit the preparation of a patent applicant. It shall 
consist of a description, including where applicable, of the parts or 
components of the invention as shown on the drawings or blueprints, 
accompanied further by a description of the construction and operation 
of the invention. Photographs of the invention may be included. The 
inventor should state pertinent prior art known to him or her, and set 
forth in detail as clearly as possible the respects which his or her 
invention differs.
    (2) The other part of the statement will set forth the circumstances 
attending the making of the invention. It will include the full name and 
address of the inventor; the grade and title of his or her position; 
whether full time or part time; his or her duties at the time the 
invention was made; the facts pertinent to a determination whether the 
invention bore a direct relation to or was made in consequence of such 
official duties; whether there was, and if so, the terms of any special 
agreement or understanding with respect to use or manufacture of his or 
her invention; date of the invention; when and where it was conceived, 
constructed and tested; whether it was made entirely during working 
hours; whether, and to what extent there was a contribution by the 
Government of any of the following: Facilities; equipment; materials or 
supplies; funds; information; time or services of other Government 
employees on duty. When the invention is disclosed through publication, 
or in consultation with a manufacturer or attorney, simultaneous 
notification of the publication shall be given to the Office of General 
Counsel. A copy of the article will accompany the notification.
    (b) The inventor's immediate superior shall promptly review the 
statement of the employee inventor for completeness and accuracy, and 
shall certify that the employee's statement of circumstances attending 
the invention is or is not correct, giving reasons if pertinent. The 
file should then be submitted through the facility head (or 
administration heads or top staff officials in the case of Central 
Office employees) to the General Counsel together with any comments or 
recommendations.

[61 FR 29658, June 12, 1996]



Sec. 1.657  Determination of rights.

    The General Counsel, Deputy General Counsel or Assistant General 
Counsel for Professional Staff Group IV will make a determination of 
rights subject to review where required by the Secretary of Commerce. 
The determination will be in accordance with 37 CFR 501.7.

[61 FR 29658, June 12, 1996, as amended at 62 FR 14822, Mar. 28, 1997]



Sec. 1.658  Right of appeal.

    In accordance with 37 CFR 501.8, the employee has a right of appeal 
to the Secretary of Commerce within 30 days of receipt of the 
Department's determination of ownership rights. The decision reached by 
the Secretary of Commerce will be communicated to the employee.

[61 FR 29658, June 12, 1996]

[[Page 80]]



Sec. 1.659  Relationship to incentive awards program.

    Procedures set out in the regulations concerning inventions by 
employees of the Department of Veterans Affairs are not affected by the 
submission or proposed submission of an employee suggestion or idea on 
an item which may be patentable. Consideration of an item for a 
determination of ownership rights and also for an incentive award will 
proceed simultaneously, usually on separate correspondence. An employee 
suggestion or copies and extracts of the file may be forwarded to the 
General Counsel by the reviewing or awarding authority, or by the 
facility head, for an ownership determination where the employee idea or 
suggestion involves an invention. The employee shall be directed to 
submit a disclosure of invention in accordance with these regulations if 
such has not been previously submitted.

[31 FR 5291, Apr. 2, 1966, as amended at 61 FR 29659, June 12, 1996]



Sec. 1.660  Expeditious handling.

    No patent may be granted where the invention has been in public use 
or publicly disclosed for more than one year before filing of a patent 
application. Hence, submissions involving inventions should be made as 
promptly as possible in order to avoid delay which might jeopardize 
title to the invention or impair the rights of the inventor or the 
Government.

[61 FR 29659, June 12, 1996]



Sec. 1.661  Information to be kept confidential.

    All information pertaining to inventions and pending patent 
applications is confidential, and employees having access to such 
information are forbidden to disclose or reveal the same except as 
required in the performance of their official duties.

[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]



Sec. 1.662  Provisions of regulations made a condition of employment.

    The provisions of the regulations concerning inventions by employees 
of the Department of Veterans Affairs shall be a condition of employment 
of all employees.

[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]



Sec. 1.663  Licensing of Government-owned inventions.

    (a) The licensing of Government-owned inventions under VA control 
and custody will be conducted pursuant to the regulations on the 
licensing of Government-owned inventions contained in 37 CFR part 404, 
and 15 U.S.C. 3710a, as appropriate.
    (b) Any person whose application for a license in an invention under 
VA control and custody has been denied; whose license in such an 
invention has been modified or terminated, in whole or in part; or who 
timely filed a written objection in response to a proposal to grant an 
exclusive or partially exclusive license in an invention under VA 
control or custody, may, if damaged, appeal any decision or 
determination concerning the grant, denial, interpretation, 
modification, or termination of a license to the Secretary of Veterans 
Affairs. Such appeal shall be in writing; shall set forth with 
specificity the basis of the appeal; and shall be postmarked not later 
than 60 days after the action being appealed. Upon request of the 
appellant, such appeal may be considered by one to three persons 
appointed on a case-by-case basis by the Secretary of Veterans Affairs. 
Such a request will be granted only if it accompanies the written 
appeal. Appellant may appear and be represented by counsel before such a 
panel, which will sit in Washington, DC. If the appeal challenges a 
decision to grant an exclusive or partially exclusive license in an 
invention under VA control or custody, the licensee shall be furnished a 
copy of the appeal, shall be given the opportunity to respond in 
writing, may appear and be represented by counsel at any hearing 
requested by appellant, and may request a hearing if appellant has not, 
under the same terms and conditions, at which the appellant may also 
appear and be represented by counsel.

[61 FR 29659, June 12, 1996]

[[Page 81]]



Sec. Sec. 1.664-1.666  [Reserved]

                     Administrative Control of Funds

    Source: 48 FR 30622, July 5, 1983, unless otherwise noted.



Sec. 1.670  Purpose.

    The following regulations establish a system of administrative 
controls for all appropriations and funds available to the Department of 
Veterans Affairs to accomplish the following purposes:
    (a) Establish an administrative subdivision of controls to restrict 
obligations and expenditures against each appropriation or fund to the 
amount of the apportionment or the reapportionment; and
    (b) Fix responsibility for the control of appropriations or funds to 
high level officials who bear the responsibility for apportionment or 
reapportionment control.

(Authority: 31 U.S.C. 1514)



Sec. 1.671  Definitions.

    For the purpose of Sec. Sec. 1.670 through 1.673, the following 
definitions apply:
    (a) Administrative subdivision of funds. An administrative 
subdivision of funds is any administrative subdivision of an 
appropriation or fund which makes funds available in a specified amount 
for the purpose of controlling apportionments or reapportionments.
    (b) Allotment. An allotment is an authorization by the Director, 
Office of Budget and Finance, to department and staff office heads 
(allottees) to incur obligations within specified amounts, during a 
specified period, pursuant to an Office of Management and Budget 
apportionment or reapportionment action. The creation of an obligation 
in excess of an allotment is a violation of the administrative 
subdivision of funds.
    (c) Allowance. An allowance is a subdivision below the allotment 
level, and is a guideline which may be issued by department or staff 
office heads (allottees) to facility directors and other officials, 
showing the expenditure pattern or operating budget they will be 
expected to follow in light of the program activities contemplated by 
the overall VA budget or plan of expenditure. The creation of an 
obligation in excess of an allowance is not a violation of the 
administrative subdivision of funds.

(Authority: 31 U.S.C. 1514)



Sec. 1.672  Responsibilities.

    (a) The issuance of an allotment to the administration and staff 
office heads (allottees) is required and is the responsibility of the 
Director, Office of Budget and Finance. The sum of such allotments shall 
not be in excess of the amount indicated in the apportionment or 
reapportionment document.
    (b) The issuance of an allowance is discretionary with department or 
staff office heads (allottees), as an allowance is merely a management 
device which allottees may utilize in carrying out their 
responsibilities. Allottees are responsible for keeping obligations 
within the amounts of their allotments, whether allowances are issued or 
not.
    (c) The Director, Office of Budget and Finance, is responsible for 
requesting apportionments and reapportionments from the Office of 
Management and Budget. Administration and staff heads shall promptly 
request that an appropriation or fund be reapportioned if feasible 
whenever it appears that obligations may exceed the level of the 
apportionment.

(Authority: 31 U.S.C. 1514)



Sec. 1.673  Responsibility for violations of the administrative 
subdivision of funds.

    (a) In the event an allotment or an apportionment is exceeded except 
in the circumstances described in paragraph (b) of this section, the 
following factors will be considered in determining which official, or 
officials, are responsible for the violation.
    (1) Knowledge of circumstances which could lead to an allotment or 
apportionment being exceeded;
    (2) Whether the official had received explicit instructions to 
continue or cease incurring obligations;
    (3) Whether any action was taken in contravention of or with 
disregard for, instructions to monitor obligations incurred;

[[Page 82]]

    (4) Whether the official had the authority to curtail obligations by 
directing a change in the manner of operations of the department or 
staff office; or
    (5) Any other facts which tend to fix the responsibility for the 
obligations which resulted in the allotment or apportionment being 
exceeded.
    (b) In the event that the sum of the allotments made in a particular 
fiscal year exceeds the amount apportioned by the Office of Management 
and Budget, and the apportionment is subsequently exceeded because of 
this action, the official who made the excess allotments will be the 
official responsible for the violation.

(Authority: 31 U.S.C. 1514)

  Use of Official Mail in the Location and Recovery of Missing Children

    Source: 52 FR 10889, Apr. 6, 1987, unless otherwise noted.



Sec. 1.700  Purpose.

    Sections 1.700 through 1.705 of this title provide a Missing 
Children Official Mail Program in the Department of Veterans Affairs.

(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)

[60 FR 48387, Sept. 19, 1995]



Sec. 1.701  Contact person for missing children official mail program.

    The Department of Veterans Affairs contact person for the Missing 
Children Official Mail Program is: Mrs. Roslynd R. Stewart, Information 
Management Service (045A4), Office of Policy and Program Assistance, 
Office of Information Resources Management, Office of Management, 
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 
20420-0001. Telephone: (202) 565-8949.

(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)

[60 FR 48388, Sept. 19, 1995]



Sec. 1.702  Policy.

    (a) The Department of Veterans Affairs will supplement and expand 
the national effort to assist in the location and recovery of missing 
children by maximizing the economical use of missing children 
information in domestic official mail and publications directed to 
members of the public and Department of Veterans Affairs employees.
    (b) The Department of Veterans Affairs will insert pictures and 
biographical information related to missing children in a variety of 
official mail originating at the Department of Veterans Affairs 
automation centers. In addition, pictures and biographical information 
are printed in self-mailers and other Department of Veterans Affairs 
publications (newsletters, bulletins, etc.).
    (c) The National Center for Missing and Exploited Children (National 
Center) is the sole source from which the Department of Veterans Affairs 
will acquire the camera-ready and other photographic and biographical 
materials to be disseminated for use by Department of Veterans Affairs 
organizational units. The information is ordered and disseminated by 
Information Management Service.
    (d) The Department of Veterans Affairs will remove all printed 
inserts and other materials from circulation or other use within a 
three-month period from the date the National Center notifies the 
Department of Veterans Affairs that a child whose picture and 
biographical information have been made available to the Department of 
Veterans Affairs has been recovered or that permission of the parent(s) 
or guardian to use the child's photograph and biographical information 
has been withdrawn. The National Center is responsible for immediately 
notifying the Department of Veterans Affairs contact person, in writing, 
of the need to withdraw from circulation official mail and other 
materials related to a particular child. Photographs which were 
reasonably current as of the time of the child's disappearence shall be 
the only acceptable form of visual medium or pictorial likeness used in 
official mail.
    (e) The Department of Veterans Affairs will give priority to 
official mail that is addressed to:
    (1) Members of the public that will be received in the United 
States, its territories and possessions; and
    (2) Inter- and intra-agency publications and other media that will 
also be

[[Page 83]]

widely disseminated to Department of Veterans Affairs employees.
    (f) The Department of Veterans Affairs will avoid repetitive 
mailings of material to the same individuals.
    (g) All Department of Veterans Affairs employee suggestions and/or 
recommendations for additional cost-effective opportunities to use 
photographs and biographical data on missing children will be provided 
to the Department of Veterans Affairs contact person.
    (h) These shall be the sole regulations for the Department of 
Veterans Affairs and its component organizational units.

(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301).

[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]



Sec. 1.703  Percentage estimate.

    It is the Department of Veterans Affairs objective that 20 percent 
of its first class official mail addressed to the public contain missing 
children photographs and information.

(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)

[60 FR 48388, Sept. 19, 1995]



Sec. 1.704  [Reserved]



Sec. 1.705  Restrictions on use of missing children information.

    Missing children pictures and biographical data shall not be:
    (a) Printed on official envelopes and other materials ordered and 
stocked in quantities that represent more than a 90-day supply.
    (b) Printed on blank pages or covers of publications that may be 
included in the Superintendent of Documents Sales Program or be 
distributed to depository libraries.
    (c) Inserted in any envelope or publication the contents of which 
may be construed to be inappropriate for association with the missing 
children program.
    (d) Inserted in any envelope where the insertion would increase the 
postage cost for the item being mailed.
    (e) Placed on letter-size envelopes on the official indicia, the 
area designated for optical character readers (OCRs), bar code read 
area, and return address area in accordance with the Office of Juvenile 
Justice and Delinquency Prevention guidelines and U.S. Postal Service 
standards.

(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)

[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]

                           Homeless Claimants



Sec. 1.710  Homeless claimants: Delivery of benefit payments and 
correspondence.

    (a) All correspondence and all checks for benefits payable to 
claimants under laws administered by the Department of Veterans Affairs 
shall be directed to the address specified by the claimant. The 
Department of Veterans Affairs will honor for this purpose any address 
of the claimant in care of another person or organization or in care of 
general delivery at a United States post office. In no event will a 
claim or payment of benefits be denied because the claimant provides no 
mailing address.


(Authority: 38 U.S.C. 5103; 5120)

    (b) To ensure prompt delivery of benefit payments and 
correspondence, claimants who seek personal assistance from Veterans 
Benefits Counselors when filing their claims shall be counseled as to 
the importance of providing his or her current mailing address and, if 
no address is provided, the procedures for delivery described in 
paragraph (d) of this section.


(Authority: 38 U.S.C. 5103; 5120)

    (c) The Department of Veterans Affairs shall prepare and distribute 
to organizations specially serving the needs of veterans and the 
homeless, including but not limited to shelters, kitchens and private 
outreach facilities, information encouraging such organizations to 
counsel individuals on the importance of providing mailing addresses to 
the Department of Veterans Affairs and advising them of this regulation.


(Authority: 38 U.S.C. 5103; 5120)

    (d) If a claimant fails or refuses to provide a current mailing 
address to the Department of Veterans Affairs, all correspondence and 
any checks for benefits to which the claimant is entitled will be 
delivered to the Agent Cashier

[[Page 84]]

of the regional office which adjudicated or is adjudicating the claim in 
the case of compensation, pension or survivors' benefits, to the Agent 
Cashier of the Department of Veterans Affairs facility closest to the 
educational institution or training establishment attended by a claimant 
in the case of education benefits, or to the Agent Cashier of any other 
Department of Veterans Affairs facility deemed by the Agency to be 
appropriate under the circumstances of the particular case. The 
claimant, within 30 days after issuance, may obtain delivery of any 
check or correspondence held by an Agent Cashier upon presentation of 
proper identification. Checks unclaimed after 30 days will be returned 
to the Department of the Treasury and the correspondence to the regional 
office or facility of jurisdiction. Thereafter, the claimant must 
request the reissuance of any such check or item of correspondence by 
written notice to the Department of Veterans Affairs.

(Authority: 38 U.S.C. 5103; 5120)

[53 FR 22654, June 17, 1988]

   Appeals From Decisions of Contracting Officers Under the Contract 
                          Disputes Act of 1978

    Authority: Sections 1.780 through 1.783 issued under 41 U.S.C. 601-
613, 38 U.S.C. 501.

    Source: 47 FR 12340, Mar. 23, 1982, unless otherwise noted.



Sec. 1.780  Board of Contract Appeals--jurisdiction.

    The Department of Veterans Affairs Board of Contract Appeals 
(referred to in Sec. Sec. 1.780 through 1.783 as the Board) shall 
consider and determine appeals from decisions of contracting officers 
pursuant to the Contract Disputes Act of 1978 (41 U.S.C. 601-613) 
relating to contracts made by (a) the Department of Veterans Affairs or 
(b) any other executive agency when such agency or the Administrator for 
Federal Procurement Policy has designated the Board to decide the 
appeal.

[47 FR 12340, Mar. 23, 1982, as amended at 54 FR 34980, Aug. 23, 1989]



Sec. 1.781  Organization and address of the Board.

    (a) The Board consists of a Chair, Vice Chair, and other members, 
all of whom are attorneys at law duly licensed by any State, 
commonwealth, territory, or the District of Columbia. In general, the 
appeals are assigned to a panel of at least 3 members who decide the 
case by a majority vote. Board Members are designated Administrative 
Judges.
    (b) The Board's mailing address is 810 Vermont Avenue, NW., 
Washington, DC 20420.



Sec. 1.782  Policy and procedure.

    (a) Rules of procedure. Appeals to the Board are processed in 
accordance with Rules of Procedure adopted by the Board in compliance 
with the guidelines issued by the Office of Federal Procurement Policy 
under the provisions of the Contract Disputes Act of 1978 (41 U.S.C. 
601, 607(h)). There is no further administrative appeal within the 
Department of Veterans Affairs from final decisions rendered by the 
Board.
    (b) Application and interpretation of rules. It is impracticable to 
articulate a rule to fit every possible circumstance which may be 
encountered. The rules, therefore, are applied and interpreted to 
provide, to the fullest extent practicable, informal expeditious, and 
inexpensive resolution of disputes. For that purpose, the Board is 
authorized to require contracting officers and other Department of 
Veterans Affairs officials to furnish the Board with such information, 
technical data, and other assistance as the Board may require in the 
performance of its duties.



Sec. 1.783  Rules of the Board.

    (a) Rule 1; appeals from final decisions and requests for final 
decisions--(1) Notice of appeal. Notice of an appeal shall be in writing 
and mailed to or otherwise furnished the Board within 90 days from the 
date of receipt of a contracting officer's final decision. A copy 
thereof shall be furnished the contracting officer from whose decision 
the appeal is taken.
    (2) Failure to issue a final decision. (i) Where the contractor has 
submitted a

[[Page 85]]

claim of $50,000 or less to the contracting officer and, in writing, has 
requested a decision within 60 days from receipt of the request, and the 
contracting officer has not done so, the contractor may file a notice of 
appeal as provided in paragraph (a)(1) of this section, citing the 
failure of the contracting officer to issue a decision.
    (ii) Where the contractor has submitted a properly certified claim 
in excess of $50,000 to the contracting officer, or pursuant to the 
Disputes Clause, has requested a decision by the contracting officer 
which presently involves no monetary amount, and the contracting officer 
has failed to issue a decision within a reasonable time, taking into 
account such factors as the size and complexity of the claim, the 
contractor may file a notice of appeal as provided in paragraph (a)(1) 
of this section, citing the failure of the contracting officer to issue 
a decision.
    (3) Stay of proceedings. Upon the docketing of an appeal filed 
pursuant to the provisions of paragraph (a)(2) of this section, the 
Board may, at its option, stay further proceedings pending issuance of a 
final decision by the contracting officer within such period of time as 
determined by the Board.
    (4) Request for final decision. In lieu of filing a notice of appeal 
under paragraph(a)(2) of this section, the contractor, in the event of 
undue delay or refusal on the part of the contracting officer, may 
request that the Board direct the contracting officer to issue a 
decision in a specified period of time, as determined by the Board.
    (b) Rule 2; notice of appeal, contents of. A notice of appeal should 
indicate that an appeal is being taken and should identify the contract 
by number, the department, agency, or bureau involved in the dispute, 
the decision from which the appeal is taken, and the amount in dispute, 
if known. The notice of appeal should be signed by the appellant (the 
contractor taking the appeal) or by the appellant's duly authorized 
representative or attorney. The complaint referred to in paragraph (f) 
of this section (Rule 6) may be filed with the notice of appeal, or the 
appellant may designate the notice of appeal as a complaint, if it 
otherwise fulfills the requirements of a complaint.
    (c) Rule 3; docketing of appeals. When a notice of apppeal in any 
form has been received by the Board, it shall be docketed promptly. 
Notice in writing shall be given to the appellant with a copy of 
Sec. Sec. 1.780 through 1.783 and to the contracting officer.
    (d) Rule 4; preparation, content, organization, forwarding, and 
status of appeal file--(1) Duties of contracting officer. Within 30 days 
of receipt of notice that an appeal has been filed, the contracting 
officer shall assemble and transmit to the Board through the Office of 
General Counsel an appeal file consisting of all documents pertinent to 
the appeal, including:
    (i) The decision from which the appeal is taken;
    (ii) The contract, including specifications and pertinent 
amendements, plans, and drawings;
    (iii) All correspondence between the parties relevant to the appeal, 
including the letter or letters of claim in response to which the 
decision was issued;
    (iv) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witnesses on the matter 
in dispute made prior to the filing of the notice of appeal with the 
Board; and
    (v) Any additional information considered relevant to the appeal.

Within the same time above specified, the Office of General Counsel 
shall furnish the appellant a copy of each document transmitted to the 
Board, except those in paragraph (d)(1)(ii) of this section. As to the 
latter, a list furnished appellant indicating specific contractual 
documents transmitted will suffice.
    (2) Duties of the appellant. Within 30 days after receipt of a copy 
of the appeal file assembled by the contracting officer, the appellant 
shall transmit to the Board any documents not contained therein which 
are considered to be relevant to the appeal, and shall furnish two 
copies of such documents to the government trial attorney.
    (3) Organization of appeal file. Documents in the appeal file may be 
originals or legible facsimiles or authenticated copies, and shall be 
arranged in chronological order where practicable,

[[Page 86]]

numbered sequentially, tabbed, and indexed to identify the contents of 
the file.
    (4) Lengthy documents. Upon request by either party the Board may 
waive the requirement to furnish to the other party copies of bulky, 
lengthy, or out-of-size documents in the appeal file when it would be 
burdensome to do so. At the time a party files with the Board a document 
as to which such a waiver has been granted the party shall notify the 
other party that the document or a copy thereof is available for 
inspection at the office of the Board or of the party filing same.
    (5) Status of documents in appeal file. Documents contained in the 
appeal file are considered, without further action by the parties, as 
part of the record upon which the Board will render its decision. 
However, a party may object, for reasons stated, to consideration of a 
particular document or documents reasonably in advance of hearing or, if 
there is no hearing, of settling the record. If such objection is made 
the Board shall remove the document or documents from the appeal file 
and permit the party offering the document to move its admission as 
evidence in accordance with paragraphs (m) and (t) of this section 
(Rules 13 and 20).
    (6) Dispensing with appeal file requirements. Notwithstanding the 
provisions of paragraph (d)(1) through (5) of this section, the filing 
of the documents in paragraph (d)(1) and (2) of this section may be 
dispensed with by the Board either upon request of the appellant in the 
notice of appeal or thereafter upon stipulation of the parties.
    (e) Rule 5; dismissal for lack of jurisdiction. Any motion addressed 
to the jurisdiction of the Board shall be promptly filed. Hearing on the 
motion shall be afforded on application of either party. However, the 
Board may defer its decision on the motion pending hearing on both the 
merits and the motion. The Board shall have the right at any time and on 
its own initiative to raise the issue of its jurisdiction to proceed 
with a particular case, and shall do so by an appropriate order, 
affording the parties an opportunity to be heard thereon.
    (f) Rule 6; pleadings and motions--(1) Appellant. Within 30 days 
after receipt of notice of docketing of the appeal, the appellant shall 
file with the Board an original and two copies of a complaint setting 
forth simple, concise, and direct statements of each of its claims. 
Appellant shall also set forth the basis, with appropriate reference to 
contract provisions, of each claim and the dollar amount claimed, to the 
extent known. This pleading shall fulfill the generally recognized 
requirements of a complaint, although no particular form is required. 
Upon receipt of the complaint, the Board shall serve a copy of it upon 
the Government. Should the complaint not be received within 30 days, 
appellant's claim and appeal may, if in the opinion of the Board the 
issues before the Board are sufficiently defined, be deemed to set forth 
its complaint and the Government shall be so notified.
    (2) Government. Within 30 days from receipt of the complaint, or the 
aforesaid notice from the Board, the Government shall prepare and file 
with the Board an original and two copies of an answer thereto. The 
answer shall set forth simple, concise, and direct statements of the 
Government's defenses to each claim asserted by appellant, including any 
affirmative defenses available. Upon receipt of the answer, the Board 
shall serve a copy upon appellant. Should the answer not be received 
within 30 days, the Board may, in its discretion, enter a general denial 
on behalf of the Government, and the appellant shall be so notified.
    (3) Motions. The Board may entertain and rule upon appropriate 
motions.
    (g) Rule 7; amendments of pleadings or record--(1) More definite 
statement and reply. The Board, upon its own initiative or upon 
application by a party, may order a party to make a more definite 
statement of the complaint or answer, or to reply to an answer.
    (2) Amendments. The Board may, in its discretion, and within the 
proper scope of the appeal, permit either party to amend its pleadings 
upon conditions fair to both parties. When issues within the proper 
scope of the appeal, but not raised by the pleadings, are tried by 
express or implied consent of the parties, or by permission of the 
Board, they shall be treated in all respects as if they had been raised 
therein. In such

[[Page 87]]

instances, motions to amend the pleadings to conform to the proof may be 
entered, but are not required. If evidence is objected to at a hearing 
on the ground that it is not within the issues raised by the pleadings, 
it may be admitted within the proper scope of the appeal, provided, 
however, that the objecting party may be granted a continuance if 
necessary to enable that party to meet such evidence.
    (h) Rule 8; hearing election. After filing of the Government's 
answer or notice from the Board that it has entered a general denial on 
behalf of the Government, each party shall advise whether it elects a 
hearing, as prescribed in paragraphs (q) through (y) of this section 
(Rules 17 through 25), or whether it elects to submit its case on the 
record without a hearing, as prescribed in paragraph (k) of this section 
(Rule 11).
    (i) Rule 9; prehearing briefs. Based on an examination of the 
pleadings, and its determination of whether the arguments and 
authorities addressed to the issues are adequately set forth therein, 
the Board may, in its discretion, require the parties to submit 
prehearing briefs in any case in which a hearing has been elected 
pursuant to paragraph (h) of this section (Rule 8). If the Board does 
not require prehearing briefs, either party may, upon appropriate and 
sufficient notice to the other party, furnish a prehearing brief to the 
Board. In any case where a prehearing brief is submitted, it shall be 
filed with the Board at least 15 days prior to the date set for hearing, 
and a copy simultaneously furnished to the other party.
    (j) Rule 10; prehearing or presubmission conference. (1) Whether the 
case is to be submitted pursuant to paragraph (k) of this section (Rule 
11), or heard pursuant to paragraphs (q) through (y) of this section 
(Rules 17 through 25), the Board may, upon its own initiative, or upon 
the application of either party, arrange a telephone conference or 
require the parties to appear before an Administrative Judge or examiner 
of the Board for a conference to consider:
    (i) Simplification, clarification, or severence of the issues;
    (ii) The possibility of obtaining stipulations, admissions, 
agreements, and rulings on admissibility of documents, understandings on 
matters already of record, or similar agreements that will avoid 
unnecessary proof;
    (iii) Agreements and rulings to facilitate discovery;
    (iv) Limitation of the number of expert witnesses, or avoidance of 
similar cumulative evidence;
    (v) The possibility of agreement disposing of any or all of the 
issues in dispute; and
    (vi) Such other matters as may aid in the disposition of the appeal.
    (2) The Administrative Judge or examiner of the Board shall make 
such rulings and orders as may be appropriate to achieve settlement by 
agreement of the parties or to aid in the disposition of the appeal. The 
results of pretrial conferences, including any rulings and orders, shall 
be reduced to writing by the Administrative Judge or examiner and this 
writing shall thereafter constitute a part of the record.
    (k) Rule 11; submission without a hearing. Either party may elect to 
waive a hearing and submit its case upon the record as settled pursuant 
to paragraph (m) of this section (Rule 13). Submission of a case without 
hearing does not relieve the parties from the necessity of proving the 
facts supporting their allegations or defenses. In accordance with 
paragraph (m) of this section (Rule 13), affidavits, depositions, 
admissions, answers to interrogatories, and stipulations may be employed 
to supplement other documentary evidence in the record. The Board may 
permit such submissions to be supplemented by oral argument 
(transcribed, if requested), and by briefs filed in accordance with 
paragraph (w) of this section (Rule 23).
    (l) Rule 12; optional small claims (expedited) and accelerated 
procedures. These procedures are available solely at the election of the 
appellant.
    (1) 12.1 Elections to utilize small claims (expedited) and 
accelerated procedures. (i) In appeals where the amount in dispute is 
$50,000 or less, the appellant may elect to have the appeal processed 
under a small claims (expedited) procedure requiring decision of the 
appeal, whenever possible, within 120 days after the Board receives 
written notice of the appellant's election. The details of this 
procedure appear in paragraph

[[Page 88]]

(1)(2) of this section (rule 12). An appellant may elect the accelerated 
procedure set forth in paragraph (l)(3) of this section (Rule 12) in any 
appeal eligible for small claims (expedited) procedure.
    (ii) In appeals where the amount in dispute is $100,000 or less, the 
appellant may elect to have the appeal processed under an accelerated 
procedure requiring decision of the appeal, whenever possible, within 
180 days after the Board receives written notice of the appellant's 
election. The details of this procedure appear in paragraph (l)(3) of 
this section (Rule 12).
    (iii) The appellant's election of either the small claims 
(expedited) procedure or the accelerated procedure may be made by 
written notice within 60 days after receipt of notice of docketing the 
appeal unless such period is extended by the Board for good cause. The 
election may not be withdrawn except with permission of the Board and 
for good cause.
    (iv) In deciding whether the small claims (expedited) procedure or 
the accelerated procedure is applicable to a given appeal, the Board 
shall determine the amount in dispute.
    (2) 12.2 The small claims (expedited) procedure. (i) In cases 
proceeding under the small claims (expedited) procedure, the following 
time periods shall apply:
    (A) Within 10 days from the Government's first receipt from either 
the appellant or the Board of a copy of the appellant's notice of 
election of the small claims (expedited) procedure, the Government shall 
send the Board a copy of the contract, the contracting officer's final 
decision, and the appellant's claim letter or letters, if any; remaining 
documents required under paragraph (d) of this section (Rule 4) shall be 
submitted in accordance with times specified in that rule unless the 
Board otherwise directs;
    (B) Within 15 days after the Board has acknowledged receipt of 
appellant's notice of election, the assigned Administrative Judge shall 
take the following actions, if feasible, in an informal meeting or a 
telephone conference with both parties: (1) Identify and simplify the 
issues; (2) establish a simplified procedure appropriate to the 
particular appeal involved; (3) determine whether either party wants a 
hearing and, if so, fix a time and place therefor; (4) require the 
Government to furnish all the additional documents relevant to the 
appeal; and (5) establish an expedited schedule for resolution of the 
appeal.
    (ii) Pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct the hearing 
on the date scheduled or, if no hearing is scheduled, to close the 
record on a date that will allow decisions within the 120-day limit. The 
Board, in its discretion, may impose shortened time periods for any 
actions prescribed or allowed under this section 1.783, as necessary to 
enable the Board to decide the appeal within the 120-day limit, allowing 
whatever time, up to 30 days, that the Board considers necessary for the 
preparation of the decision after closing the record and the filing of 
briefs, if any.
    (iii) Written decisions by the Board in cases processed under the 
small claims (expedited) procedure will be brief and contain only 
summary findings of fact and conclusions. Decisions will be rendered for 
the Board by a single Administrative Judge. If there has been a hearing, 
the Administrative Judge presiding at the hearing may, in the judge's 
discretion, at the conclusion of the hearing and after entertaining such 
oral arguments as deemed appropriate, render on the record oral summary 
findings of fact, conclusions, and a decision of the appeal. Whenever 
such an oral decision is rendered, the Board will subsequently furnish 
the parties a typed copy of such oral decision for record and payment 
purposes and to establish the starting date for the period for filing a 
motion for reconsideration under paragraph (cc) of this section (Rule 
29).
    (iv) Decisions under this procedure shall have no value as precedent 
and, in the absence of fraud, shall be final and conclusive and may not 
be appealed or set aside.
    (3) 12.3 The accelerated procedure. (i) In cases proceeding under 
the accelerated procedure, the parties are encouraged, to the extent 
possible consistent with adequate presentation of their factual and 
legal positions, to waive

[[Page 89]]

pleadings, discovery, and briefs. Pleadings, discovery, and other 
prehearing activity will be allowed only as consistent with the 
requirement to conduct the hearing on the date scheduled or, if no 
hearing is scheduled, to close the record on a date that will allow 
decision within the 180-day limit. The Board, in its discretion, may 
shorten time periods prescribed or allowed under this Sec. 1.783, as 
necessary to enable the Board to decide the appeal within 180 days after 
the Board has received the appellant's notice of election of the 
accelerated procedure, and may reserve 30 days for preparation of the 
decision.
    (ii) Written decisions by the Board in cases processed under the 
accelerated procedure will normally be brief and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge with the concurrence of the 
Chair, Vice Chair, or other designated Administrative Judge, or by a 
majority among these two and an additional designated member in case of 
disagreement. Alternatively, in cases where the amount in dispute is 
$10,000 or less as to which the accelerated procedure has been elected 
and in which there has been a hearing, the single Administrative Judge 
presiding at the hearing may, with the concurrence of both parties, at 
the conclusion of the hearing and after entertaining such oral arguments 
as deemed appropriate, render on the record oral summary findings of 
fact, conclusions, and a decision of the appeal. Whenever such an oral 
decision is rendered, the Board will subsequently furnish the parties a 
typed copy of such oral decision for record and payment purposes, and to 
establish the starting date for the period for filing a motion for 
reconsideration under paragraph (cc) of this section (Rule 29).
    (4) 12.4 Motions for reconsideration in cases under paragraph (l) of 
this section (Rule 12). Motions for reconsideration of cases decided 
under either the small claims (expedited) procedure or the accelerated 
need not be decided within the original 120-day or 180-day limits, but 
all such motions shall be processed and decided rapidly so as to fulfill 
the intent of paragraph (l) of this section (Rule 12).
    (m) Rule 13; settling the record. (1) The record upon which the 
Board's decision will be rendered consists of the documents furnished 
under paragraphs (d) and (l) of this section (Rules 4 and 12), to the 
extent admitted in evidence, and the following items, if any: pleadings 
prehearing conference memoranda or orders, prehearing briefs, 
depositions or interrogatories received in evidence, admissions, 
stipulations, transcripts of conferences and hearings, hearing exhibits, 
posthearing briefs, and documents which the Board has specifically 
designated be made a part of the record. The record will, at all 
reasonable times, be available for inspection by the parties at the 
office of the Board.
    (2) Except as the Board may otherwise order in its discretion, no 
evidence shall be received after completion of an oral hearing or, in 
cases submitted on the record, after notification by the Board that the 
case is ready for decision.
    (3) The weight to be attached to any evidence of record will rest 
within the sound discretion of the Board. The Board may in any case 
require either party, with appropriate notice to the other party, to 
submit additional evidence on any matter relevant to the appeal.
    (n) Rule 14; discovery--depositions--(1) General policy and 
protective orders. The parties are encouraged to engage in voluntary 
discovery procedures. In connection with any deposition or other 
discovery procedure, the Board may make any order required to protect a 
party or person from annoyance, embarrassment, or undue burden or 
expense. Such orders may include limitations on the scope, method, time 
and place for discovery, and provision for protecting the secrecy of 
confidential information or documents.
    (2) When depositions permitted. After an appeal has been docketed 
and complaint filed, the parties may agree to, or the Board may order, 
upon application of either party, the taking of testimony of any person 
by deposition upon oral examination or written interrogatories before 
any officer authorized to administer oaths at the place of examination, 
for use as evidence or for purpose of discovery. The application

[[Page 90]]

for order shall specify whether the purpose of the deposition is 
discovery or for use as evidence.
    (3) Orders on depositions. The time, place, and manner of taking 
depositions shall be as agreed upon by the parties or, failing such 
agreement, governed by order of the Board.
    (4) Use as evidence. No testimony taken by deposition shall be 
considered as part of the evidence in the hearing of an appeal until 
such testimony is offered and received in evidence at such hearing. It 
will not ordinarily be received in evidence if the deponent is present 
and can testify at the hearing. In such instances, however, the 
deposition may be used to contradict or impeach the testimony of the 
deponent given at the hearing. In cases submitted on the record, the 
Board may, in its discretion, receive depositions to supplement the 
record.
    (5) Expenses. Each party shall bear its own expenses associated with 
the taking of any deposition.
    (6) Subpoenas. Where appropriate, a party may request the issuance 
of a subpoena under the provisions of paragraph (u) of this section 
(Rule 21).
    (o) Rule 15; interrogatories to parties, admissions of fact, and 
production and inspection of documents. After an appeal has been 
docketed and complaint filed with the Board, a party may serve on the 
other party: (1) Written interrogatories to be answered separately in 
writing, signed under oath and answered or objected to within 30 days 
after service; (2) a request for the admission of specified facts and/or 
the authenticity of any documents, to be answered or objected to within 
30 days after service, the factual statements and the authenticity of 
the documents to be deemed admitted upon failure of a party to respond 
to the request; and (3) a request for the production, inspection, and 
copying of any documents or objects, not privileged, which reasonably 
may lead to the discovery of admissible evidence, to be answered or 
objected to within 30 days after service. Any discovery engaged in under 
this rule shall be subject to the provisions of paragraph (n)(1) of this 
section (Rule 14(A)) with respect to general policy and protective 
orders, and paragraph (ii) of this section (Rule 35) with respect to 
sanctions.
    (p) Rule 16; service of papers other than subpoenas. Papers shall be 
served personally or by mail, addressed to the party upon whom service 
is to be made. Copies of complaints, answers, replies, and briefs shall 
be filed directly with the Board for service. The party filing any other 
paper with the Board shall send a copy thereof to the opposing party, 
noting on the paper filed with the Board that a copy has been so 
furnished. Subpoenas shall be served as provided in paragraph (u) of 
this section (Rule 21).
    (q) Rule 17; hearings, where and when held. Hearings will be held at 
such places determined by the Board to best serve the interests of the 
parties and the Board. Hearings will be scheduled at the discretion of 
the Board with due consideration to the regular order of appeals, 
requirements of paragraph (l) of this section (Rule 12), and other 
pertinent factors. On request or motion by either party and for good 
cause, the Board may, in its discretion, adjust the date of a hearing.
    (r) Rule 18; notice of hearings. The parties shall be given at least 
15 days notice of the time and place set for hearings. In scheduling 
hearings, the Board will consider the desires of the parties and the 
requirement for just and inexpensive determination of appeals without 
unnecessary delay. Notices of hearing shall be promptly acknowledged by 
the parties.
    (s) Rule 19; unexcused absence of a party. The unexcused absence of 
a party at the time and place set for hearing will not be occasion for 
delay. In the event of such absence, the hearing will proceed and the 
case will be regarded as submitted by the absent party as provided in 
paragraph (k) of this section (Rule 11).
    (t) Rule 20; hearings, nature of and examination of witnesses--(1) 
Nature of hearings. Hearings shall be as informal as may be reasonable 
and appropriate under the circumstances. Appellant and respondent may 
offer such relevant evidence as they deem appropriate and

[[Page 91]]

as would be admissible under the Federal Rules of Evidence, subject, 
however, to the sound discretion of the presiding Administrative Judge 
or examiner in supervising the extent and manner of presentation of such 
evidence. In general, admissibility will depend on relevancy and 
materiality. Evidence which may not be admissible under the Federal 
Rules of Evidence may be admitted in the discretion of the presiding 
Administrative Judge or examiner. The weight to be attached to evidence 
presented in any particular form will be within the discretion of the 
Board. Stipulations of fact agreed upon by the parties may be regarded 
and used as evidence at the hearing. The parties may stipulate the 
testimony that would be given by a witness if the witness were present. 
The Board may in any case require evidence in addition to that offered 
by the parties.
    (2) Examination of witnesses. Witnesses before the Board will be 
examined orally under oath or affirmation, unless the presiding 
Administrative Judge or examiner shall otherwise order. If the testimony 
of a witness is not given under oath, the Board may advise the witness 
that his or her statements may be subject to the provisions of 18 U.S.C. 
287 and 1001, and any other provision of law imposing penalties for 
knowingly making false representations in connection with claims against 
the United States or in any matter within the jurisdiction of any 
department or agency thereof.
    (u) Rule 21; subpoenas--(1) General. Upon written request of either 
party filed with the Board, or on the Board's own initiative, the 
Administrative Judge to whom a case is assigned or who is otherwise 
designated by the Chair may issue a subpoena requiring:
    (i) Testimony at a deposition--the deposing of a witness in the city 
or county where the witness resides or is employed or transacts business 
in person, or at another location convenient for the witness that is 
specifically determined by the Board;
    (ii) Testimony at a hearing--the attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (iii) Production of books and papers--in addition to paragraph 
(u)(1)(i) or (ii) of this section, the production by the witness at the 
deposition or hearing of books and papers designated in the subpoena.
    (2) Voluntary cooperation. Each party is expected (i) to cooperate 
and make available witnesses and evidence under its control as requested 
by the other party, without issuance of a subpoena, and (ii) to secure 
voluntary attendance of desired third-party witnesses and production of 
desired third-party books, papers, documents, or tangible things 
whenever possible.
    (3) Requests for subpoenas--(i) A request for a subpoena shall 
normally be filed at least:
    (A) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought;
    (B) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.

In its discretion, the Board may honor requests for subpoenas not made 
within these time limitations.
    (ii) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books and 
papers sought.
    (4) Requests to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (i) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or (ii) require the person in 
whose behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (5) Form; issuance--(i) Every subpoena shall state the name of the 
Board and the title of the appeal, and shall command each person to whom 
it is directed to attend and give testimony and, if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may, in his or her 
discretion, enter the name of the witness and otherwise leave it blank. 
The party to

[[Page 92]]

whom the subpoena is issued shall complete the subpoena before service.
    (ii) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (6) Service. (i) The party requesting issuance of a subpoena shall 
arrange for service.
    (ii) A subpoena requiring the attendance of a witness at a 
deposition or hearing may be served at any place. A subpoena may be 
served by a United States marshal or deputy marshal, or by any other 
person who is not a party and not less than 18 years of age. Service of 
a subpoena upon a person named therein shall be made by personally 
delivering a copy to that person and tendering the fees for one day's 
attendance and the mileage provided by 28 U.S.C. 1821 or other 
applicable law; however, where the subpoena is issued on behalf of the 
Government, money payments need not be tendered in advance of 
attendance.
    (iii) The party at whose request a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as a sufficient ground for 
striking the testimony of the witness and the books or papers the 
witness has produced.
    (7) Contumacy or refusal to obey a subpoena. In case of contumacy or 
refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States District 
Court, the Board will apply to the Court through the Attorney General of 
the United States for an order requiring the person to appear before the 
Board or a member thereof to give testimony or produce evidence or both. 
Any failure of any such person to obey the order of the Court may be 
punished by the Court as a contempt thereof.
    (v) Rule 22; copies of papers. When books, records, papers, or 
documents have been received in evidence, true copies thereof, or of 
such part thereof as may be material or relevant, may be substituted 
therefor, during the hearing or at the conclusion thereof.
    (w) Rule 23; posthearing briefs. Posthearing briefs may be submitted 
upon such terms as may be agreed to by the parties and the presiding 
Administrative Judge or examiner at the conclusion of the hearing.
    (x) Rule 24; transcript of proceedings. Testimony and argument at 
hearings shall be reported verbatim, unless the Board otherwise orders. 
Waiver of transcript may be especially suitable for hearings under 
paragraph (l)(2) of this section (Rule 12.2). Transcripts or copies of 
the proceedings shall be supplied to the parties at the actual cost of 
duplication.
    (y) Rule 25; withdrawal of exhibits. After a decision has become 
final, the Board may, upon request and after notice to the other party, 
in its discretion, permit the withdrawal of original exhibits, or any 
part thereof, by the party entitled thereto. The substitution of true 
copies of exhibits or any part thereof may be required by the Board in 
its discretion as a condition of granting permission for such 
withdrawal.
    (z) Rule 26; representation--the appellant. An individual appellant 
may appear before the Board in person; a corporation by one of its 
officers; and a partnership or joint venture by one of its members; or 
any of these by an attorney at law duly licensed in any State, 
commonwealth, territory, the District of Columbia, or in a foreign 
country. An attorney representing an appellant shall file a written 
notice of appearance with the Board.
    (aa) Rule 27; representation--the government. Government counsel 
may, in accordance with their authority, represent the interests of the 
Government before the Board. They shall file notices of appearance with 
the Board, and notice thereof will be given appellant or appellant's 
attorney in the form specified by the Board from time to time.
    (bb) Rule 28; decisions. Decisions of the Board will be made in 
writing and authenticated copies of the decision will be forwarded 
simultaneously to both parties. The rules of the Board and all final 
orders and decisions (except those required for good cause to be held 
confidential and not cited as

[[Page 93]]

precedents) shall be open for public inspection at the office of the 
Board in Washington, DC. Decisions of the Board will be made solely upon 
the record, as described in paragraph (m) of this section (Rule 13).
    (cc) Rule 29; motions for reconsideration. A motion for 
reconsideration may be filed by either party. It shall set forth 
specifically the grounds relied upon to support the motion. The motion 
shall be filed within 30 days from the date of the receipt of a copy of 
the decision of the Board by the party filing the motion.
    (dd) Rule 30; suspension and dismissal without prejudice. Whenever 
appellant and the Government counsel are in agreement as to disposition 
of the controversy, the Board may suspend or terminate further 
processing of the appeal. If, thereafter, the Board is advised by either 
party that the controversy has not been disposed of by agreement, the 
case shall be restored to the Board's calendar without loss of position. 
In other cases where the Board is unable to proceed with disposition for 
reasons not within the control of the Board, an appeal may be placed in 
a suspense status. Where the suspension has continued, or may continue, 
for an inordinate length of time, the Board, in its discretion, may 
dismiss such appeal from its docket without prejudice to restoration 
when the cause of suspension has been removed. Unless either party or 
the Board acts within three years to reinstate any appeal dismissed 
without prejudice, the dismissal shall be deemed to be with prejudice.
    (ee) Rule 31; dismissal or default for failure to prosecute or 
defend. Whenever a record discloses the failure of either party to file 
documents required by these rules, respond to notices or correspondence 
from the Board, comply with orders of the Board, or otherwise indicates 
an intention not to continue the prosecution or defense of an appeal, 
the Board may, in the case of a default by the appellant, issue an order 
to show cause why the appeal should not be dismissed or, in the case of 
a default by the Government, issue an order to show cause why the Board 
should not act thereon pursuant to paragraph (ii) of this section (Rule 
35). If good cause is not shown, the Board may take appropriate action.
    (ff) Rule 32; remand from court. Whenever any court remands a case 
to the Board for further proceedings, each of the parties shall, within 
20 days of such remand, submit a report to the Board recommending 
procedures to be followed so as to comply with the court's order. The 
Board shall consider the reports and enter special orders governing the 
handling of the remanded case. To the extent the court's directive and 
time limitations permit, such orders shall conform to these rules.
    (gg) Rule 33; time, computation, and extensions. (1) Where possible, 
procedural actions should be taken in less time than the maximum time 
allowed. Where appropriate and justified, however, extensions of time 
will be granted. All requests for extensions of time shall be in 
writing.
    (2) In computing any period of time, the day of the event from which 
the designated period of time begins to run shall not be included, but 
the last day of the period shall be included unless it is a Saturday, 
Sunday, or a legal holiday, in which event the period shall run to the 
end of the next business day.
    (hh) Rule 34; ex parte communications. No member of the Board or of 
the Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, regarding any matter at issue in an appeal. 
This provision does not apply to consultation among Board members nor to 
ex parte communications concerning the Board's administrative functions 
or procedures.
    (ii) Rule 35; sanctions. If any party fails or refuses to obey an 
order issued by the Board, the Board may make such order as it considers 
necessary to the just and expeditious conduct of the appeal.
    (jj) Rule 36; effective date and applicability. These rules shall 
apply (1) mandatorily, to all appeals relating to contracts entered into 
on or after March 1, 1979, and (2) at the contractor's election, to 
appeals relating to earlier contracts, with respect to claims pending 
before the contracting

[[Page 94]]

officer on March 1, 1979 or initiated thereafter.

[47 FR 12340, Mar. 23, 1982, as amended at 60 FR 48029, Sept. 18, 1995]

                   Part-Time Career Employment Program

    Source: 44 FR 55172, Sept. 25, 1979, unless otherwise noted.



Sec. 1.891  Purpose of program.

    Many individuals in society possess great productive potential which 
goes unrealized because they cannot meet the requirements of a standard 
workweek. Permanent part-time employment also provides benefits to other 
individuals in a variety of ways, such as providing older individuals 
with a gradual transition into retirement, providing employment 
opportunities to handicapped individuals or others who requires a 
reduced workweek, providing parents opportunities to balance family 
responsibilities with the need for additional income, and assisting 
students who must finance their own education or vocational training. In 
view of this, the Department of Veterans Affairs will operate a part-
time career employment program, consistent with the needs of its 
beneficiaries and its responsibilities.

(Authority: 5 U.S.C. 3401 note)



Sec. 1.892  Review of positions.

    Positions becoming vacant, unless excepted as provided by Sec. 
1.897, will be reviewed to determine the feasibility of converting them 
to part-time. Among the criteria which may be used when conducting this 
review are:
    (a) Mission requirements.
    (b) Workload.
    (c) Employment ceilings and budgetary considerations.
    (d) Availability of qualified applicants willing to work part time.
    (e) Other criteria based on local needs and circumstances.

(Authority: 5 U.S.C. 3402)



Sec. 1.893  Establishing and converting part-time positions.

    Position management and other internal reviews may indicate that 
positions may be either converted from full-time or initially 
established as part-time positions. Criteria listed in Sec. 1.892 may 
be used during these reviews. If a decision is made to convert to or to 
establish a part-time position, regular position management and 
classification procedures will be followed.

(Authority: 5 U.S.C. 3402)



Sec. 1.894  Annual goals and timetables.

    An departmentwide plan for promoting part-time employment 
opportunities will be developed annually. This plan will establish 
annual goals and set interim and final deadlines for achieving these 
goals. This plan will be applicable throughout the agency, but may be 
supplemented by field facilities.

(Authority: 5 U.S.C. 3402)



Sec. 1.895  Review and evaluation.

    The part-time career employment program will be reviewed through 
regular employment reports to determine levels of part-time employment. 
This program will also be designated an item of special interest to be 
reviewed during personnel management reviews.

(Authority: 5 U.S.C. 3402)

[61 FR 38571, July 25, 1996]



Sec. 1.896  Publicizing vacancies.

    When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such 
as:
    (a) Federal Job Information Centers.
    (b) State Employment offices.
    (c) VA Recruiting Bulletins.

(Authority: 5 U.S.C. 3402)



Sec. 1.897  Exceptions.

    The Secretary of Veterans Affairs, or designees, may except 
positions from inclusion in this program as necessary to carry out the 
mission of the Department.

(Authority: 5 U.S.C. 3402)

[[Page 95]]

   Standards for Collection, Compromise, Suspension or Termination of 
  Collection Effort, and Referral of Civil Claims for Money or Property

    Authority: Sections 1.900 through 1.953 are issued under the 
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted 
in specific sections.

    Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.



Sec. 1.900  Prescription of standards.

    (a) The standards contained in Sec. Sec. 1.900 through 1.953 are 
issued pursuant to the Federal Claims Collection Standards, issued by 
the Department of the Treasury (Treasury) and the Department of Justice 
(DOJ) in parts 900 through 904 of 31 CFR, as well as other debt 
collection authority issued by Treasury in part 285 of 31 CFR, and apply 
to the collection, compromise, termination, and suspension of debts owed 
to VA, and the referral of such debts to Treasury (or other Federal 
agencies designated by Treasury) for offset and collection action and to 
DOJ for litigation, unless otherwise stated in this part or in other 
statutory or regulatory authority, or by contract.
    (b) Standards and policies regarding the classification of debt for 
accounting purposes (for example, write-off of uncollectible debt) are 
contained in the Office of Management and Budget's Circular A-129 
(Revised), ``Policies for Federal Credit Programs and Non-Tax 
Receivables.''


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62191, Oct. 25, 2004]



Sec. 1.901  No private rights created.

    Sections 1.900 through 1.953 do not create any right or benefit, 
substantive or procedural, enforceable at law or in equity by a party 
against the United States, its agencies, its officers, or any other 
person, nor shall the failure of VA to comply with any of the provisions 
of Sec. Sec. 1.900 through 1.953 be available to any debtor as a 
defense.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62191, Oct. 25, 2004]



Sec. 1.902  Antitrust, fraud, and tax and interagency claims.

    (a) The standards in Sec. Sec. 1.900 through 1.953 relating to 
compromise, suspension, and termination of collection activity do not 
apply to any debt based in whole or in part on conduct in violation of 
the antitrust laws or to any debt involving fraud, the presentation of a 
false claim, or misrepresentation on the part of the debtor or any party 
having an interest in the claim. Only the Department of Justice (DOJ) 
has the authority to compromise, suspend, or terminate collection 
activity on such claims. The standards in Sec. Sec. 1.900 through 1.953 
relating to the administrative collection of claims do apply, but only 
to the extent authorized by DOJ in a particular case. Upon 
identification of a claim based in whole or in part on conduct in 
violation of the antitrust laws or any claim involving fraud, the 
presentation of a false claim, or misrepresentation on the part of the 
debtor or any party having an interest in the claim, VA shall promptly 
refer the case to DOJ. At its discretion, DOJ may return the claim to VA 
for further handling in accordance with the standards in Sec. Sec. 
1.900 through 1.953.
    (b) Sections 1.900 through 1.953 do not apply to tax debts.
    (c) Sections 1.900 through 1.953 do not apply to claims between 
Federal agencies.
    (d) Federal agencies should attempt to resolve interagency claims by 
negotiation in accordance with Executive Order 12146 (3 CFR, 1980 Comp., 
pp. 409-412).


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.903  Settlement, waiver, or compromise under other statutory or 
regulatory authority.

    Nothing in Sec. Sec. 1.900 through 1.953 precludes VA settlement, 
waiver, compromise, or other disposition of any claim under statutes and 
implementing regulations other than subchapter II of chapter 37 of Title 
31 of the United States Code (Claims of the United States Government) 
and the standards in Title 31 CFR parts 900 through 904. See, for 
example, the Federal Medical Care Recovery Act (42 U.S.C. 2651 et

[[Page 96]]

seq.) and applicable regulations, 28 CFR part 43. In such cases, the 
laws and regulations that are specifically applicable to claims 
collection activities of VA generally take precedence over 31 CFR parts 
900 through 904.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.904  Form of payment.

    Claims may be paid in the form of money or, when a contractual basis 
exists, VA may demand the return of specific property or the performance 
of specific services.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.905  Subdivision of claims not authorized.

    Debts may not be subdivided to avoid the monetary ceiling 
established by 31 U.S.C. 3711(a)(2). A debtor's liability arising from a 
particular transaction or contract shall be considered as a single debt 
in determining whether the debt is one of less than $100,000 (excluding 
interest, penalties, and administrative costs) or such higher amount as 
the Attorney General shall from time to time prescribe for purposes of 
compromise, suspension, or termination of collection activity.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.906  Required administrative proceedings.

    (a) In applying Sec. Sec. 1.900 through 1.953, VA is not required 
to omit, foreclose, or duplicate administrative proceedings required by 
contract or other laws or regulations.
    (b) Nothing contained in Sec. Sec. 1.900 through 1.953 is intended 
to foreclose the right of any debtor to an administrative proceeding, 
including appeals, waivers, and hearings provided by statute, contract, 
or VA regulation (see 38 U.S.C. 3720(a)(4) and 5302 and 42 U.S.C. 2651-
2653).


(Authority: 38 U.S.C. 501, 3720(a)(4), 5302; 42 U.S.C. 2651 through 
2653).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.907  Definitions.

    (a) The definitions and construction found in the Federal Claims 
Collection Standards in 31 CFR 900.2(a) through (d), and the definitions 
in the provisions on administrative wage garnishment in 31 CFR 285.11(c) 
shall apply to Sec. Sec. 1.900 through 1.953, except as otherwise 
stated.
    (b) As used in Sec. Sec. 1.900 through 1.953, referral for 
litigation means referral to the Department of Justice for appropriate 
legal actions, except in those specified instances where a case is 
referred to a VA Regional Counsel for legal action.
    (c) As used in Sec. Sec. 1.900 through 1.953, VA benefit program 
means medical care, home loan, and benefits payment programs 
administered by VA under Title 38 of the United States Code, except as 
otherwise stated.
    (d) As used in Sec. Sec. 1.900 through 1.953, Treasury means the 
United States Department of the Treasury.


(Authority: 31 U.S.C. 3701, 3711; 38 U.S.C. 501, 5316).

[69 FR 62192, Oct. 25, 2004]

                   Standards for Collection of Claims

    Authority: Sections 1.900 through 1.953 are issued under the 
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted 
in specific sections.

    Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.



Sec. 1.910  Aggressive collection action.

    (a) VA will take aggressive collection action on a timely basis, 
with effective follow-up, to collect all claims for money or property 
arising from its activities.
    (b) In accordance with 31 U.S.C. 3711(g) and the procedures set 
forth at 31 CFR 285.12, VA shall transfer to Treasury any non-tax debt 
or claim that has been delinquent for a period of 180 days or more so 
that Treasury may take appropriate action to collect the debt or 
terminate collection action. This requirement does not apply to any debt 
that:
    (1) Is in litigation or foreclosure;
    (2) Will be disposed of under an approved asset sale program;

[[Page 97]]

    (3) Has been referred to a private collection contractor for a 
period of time acceptable to the Secretary of the Treasury;
    (4) Is at a debt collection center for a period of time acceptable 
to the Secretary of the Treasury;
    (5) Will be collected under internal offset procedures within 3 
years after the debt first became delinquent; or
    (6) Is exempt from this requirement based on a determination by the 
Secretary of the Treasury that exemption for a certain class of debt is 
in the best interest of the United States. VA may request that the 
Secretary of the Treasury exempt specific classes of debts.
    (c) In accordance with 31 U.S.C. 3716(c)(6) and the procedures set 
forth in 31 CFR part 285, VA shall notify Treasury of all past due, 
legally enforceable non-tax debt that is over 180 days delinquent for 
purposes of administrative offset, including tax refund offset and 
federal salary offset. (Procedures for referral to Treasury for tax 
refund offset are found at 31 CFR 285.2 and procedures for referral to 
Treasury for federal salary offset are found at 38 CFR 1.995 and 31 CFR 
285.7.)


(Authority: 31 U.S.C. 1311, 1316; 38 U.S.C. 501, 5314; 31 CFR part 285).

[69 FR 62192, Oct. 25, 2004]



Sec. 1.911  Collection of debts owed by reason of participation in a 
benefits program.

    (a) Scope. This section applies to the collection of debts resulting 
from an individual's participation in a VA benefit or home loan program. 
It does not apply to VA's other debt collection activities. Standards 
for the demand for payment of all other debts owed to VA are set forth 
in Sec. 1.911a. School liability debts are governed by Sec. 21.4009 of 
this title.
    (b) Written demands. When VA has determined that a debt exists by 
reason of an administrative decision or by operation of law, VA shall 
promptly demand, in writing, payment of the debt. VA shall notify the 
debtor of his or her rights and remedies and the consequences of failure 
to cooperate with collection efforts. Generally, one demand letter is 
sufficient, but subsequent demand letters may be issued as needed.
    (1) The Secretary determines that further demand would be futile;
    (2) The debtor has indicated in writing that he or she does not 
intend to pay the debt;
    (3) Judicial action to protect the Government's interest is 
indicated under the circumstances; or
    (4) Collection by offset pursuant to Sec. 1.912a can be made.
    (c) Rights and remedies. Subject to limitations referred to in this 
paragraph, the debtor has the right to informally dispute the existence 
or amount of the debt, to request waiver of collection of the debt, to a 
hearing on the waiver request, and to appeal the Department of Veterans 
Affairs decision underlying the debt. These rights can be exercised 
separately or simultaneously. Except as provided in Sec. 1.912a 
(collection by offset), the exercise of any of these rights will not 
stay any collection proceeding.
    (1) Informal dispute. This means that the debtor writes to the 
Department of Veterans Affairs and questions whether he or she owes the 
debt or whether the amount is accurate. The Department of Veterans 
Affairs will, as expeditiously as possible, review the accuracy of the 
debt determination. If the resolution is adverse to the debtor, he or 
she may also request waiver of collection as indicated in paragraphs 
(c)(2) and (3) of this section.
    (2) Request for waiver; hearing on request. The debtor has the right 
to request waiver of collection, in accordance with Sec. 1.963 or Sec. 
1.964, and the right to a hearing on the request. Requests for waivers 
must be filed in writing. A waiver request must be filed within the time 
limit set forth in 38 U.S.C. 5302. If waiver is granted, in whole or in 
part, the debtor has a right to refund of amounts already collected up 
to the amount waived.
    (3) Appeal. In accordance with parts 19 and 20 of this title, the 
debtor may appeal the decision underlying the debt.
    (d) Notification. The Department of Veterans Affairs shall notify 
the debtor in writing of the following:
    (1) The exact amount of the debt;

[[Page 98]]

    (2) The specific reasons for the debt, in simple and concise 
language;
    (3) The rights and remedies described in paragraph (c) of this 
section, including a brief explanation of the concept of, and 
requirements for, waiver;
    (4) That collection may be made by offset from current or future VA 
benefit payments (see Sec. 1.912a). In addition, the debtor shall be 
advised of any policies with respect to the use of credit bureaus, debt 
collection centers, and collection agencies; any other remedies to 
enforce payment of the debt, including administrative wage garnishment, 
Federal salary offset, tax refund offset, and litigation; and the 
requirement that any debt delinquent for more than 180 days be 
transferred to Treasury for administrative offset or collection.
    (5) That interest and administrative costs may be assessed in 
accordance with Sec. 1.915, as appropriate;
    (6) That the debtor shall have the opportunity to inspect and copy 
records; and
    (7) That the debtor shall have the opportunity to enter into a 
repayment agreement.
    (e) Sufficiency of notification. Notification is sufficient when 
sent by ordinary mail directed to the debtor's last known address and 
not returned as undeliverable by postal authorities.
    (f) Further explanation. Further explanation may be found for--
    (1) Appellate rights, in parts 19 and 20 of this title;
    (2) Notification of any decision affecting the payment of benefits 
or granting relief, in Sec. 3.103(e);
    (3) Right to appeal a waiver decision, in Sec. 1.958;
    (4) Refund to a successful waiver applicant of money already 
collected, in Sec. 1.967; and
    (5) The assessment of interest and administrative costs, in Sec. 
1.915.

(Authority: 38 U.S.C. 501, 5302, 5314)

[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and 
amended at 52 FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989; 69 FR 
62193, Oct. 25, 2004]



Sec. 1.911a  Collection of non-benefit debts.

    (a) This section is written in accordance with 31 CFR 901.2 and 
applies to the demand for payment of all debts, except those debts 
arising out of participation in a VA benefit or home loan program. 
Procedures for the demand for payment of VA benefit or home loan program 
debts are set forth in Sec. 1.911.
    (b) Written demand as described in paragraph (c) of this section 
shall be made promptly upon a debtor of VA in terms that inform the 
debtor of the consequences of failing to cooperate with VA to resolve 
the debt. Generally, one demand letter is sufficient, but subsequent 
letters may be issued. In determining the timing of the demand letter, 
VA should give due regard to the need to refer debts promptly to the 
Department of Justice for litigation, in accordance with Sec. Sec. 
1.950 through 1.953. When necessary to protect VA's interest (for 
example, to prevent the running of a statute of limitations), written 
demand may be preceded by other appropriate actions under 38 CFR 1.900 
through 1.953, including immediate referral for litigation.
    (c) The written demand letter shall inform the debtor of:
    (1) The basis for the indebtedness and any rights the debtor may 
have to seek review within VA, including the right to request waiver;
    (2) The applicable standards for imposing any interest or other late 
payment charges;
    (3) The date by which payment should be made to avoid interest and 
other late payment charges and enforced collection, which generally 
should not be more than 30 days from the date that the demand letter is 
mailed;
    (4) The name, address, and phone number of a contact person or 
office within the agency;
    (5) The opportunity to inspect and copy VA records related to the 
debt; and
    (6) The opportunity to make a written agreement to repay the debt.
    (d) In addition to the items listed in paragraph (c) of this 
section, VA should include in the demand letter VA's willingness to 
discuss alternative methods of payment and its policies with respect to 
the use of credit bureaus, debt collection centers, and collection 
agencies. The letter should also

[[Page 99]]

indicate the agency's remedies to enforce payment of the debt (including 
assessment of interest, administrative costs and penalties, 
administrative garnishment, Federal salary offset, tax refund offset, 
administrative offset, and litigation) and the requirement that any debt 
delinquent for more than 180 days be transferred to Treasury for 
collection.
    (e) VA should respond promptly to communications from debtors and 
should advise debtors who dispute debts, or request waiver, to furnish 
available evidence to support their contentions.
    (f) Prior to referring a debt for litigation, VA should advise each 
debtor determined to be liable for the debt that, unless the debt can be 
collected administratively, litigation may be initiated. This 
notification may be given as part of a demand letter under paragraph (c) 
of this section or in a separate letter.
    (g) When VA learns that a bankruptcy petition has been filed with 
respect to a debtor, before proceeding with further collection action, 
VA should immediately seek legal advice from either VA's General Counsel 
or Regional Counsel concerning the impact of the Bankruptcy Code on any 
pending or contemplated collection activities. Unless VA determines that 
the automatic stay imposed at the time of filing pursuant to 11 U.S.C. 
362 has been lifted or is no longer in effect, in most cases collection 
activity against the debtor should stop immediately.
    (1) After VA seeks legal advice, a proof of claim should be filed in 
most cases with the bankruptcy court or the Trustee. VA should refer to 
the provisions of 11 U.S.C. 106 relating to the consequences on 
sovereign immunity of filing a proof of claim.
    (2) If VA is a secured creditor, it may seek relief from the 
automatic stay regarding its security, subject to the provisions and 
requirements of 11 U.S.C. 362.
    (3) Offset is prohibited in most cases by the automatic stay. 
However, VA should seek legal advice from VA's General Counsel or 
Regional Counsel to determine whether payments to the debtor and 
payments of other agencies available for offset may be frozen by VA 
until relief from the automatic stay can be obtained from the bankruptcy 
court. VA also should seek legal advice from VA's General Counsel or 
Regional Counsel to determine whether recoupment is available.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62193, Oct. 25, 2004]



Sec. 1.912  Collection by offset.

    (a) Authority and scope. In accordance with the procedures set forth 
in 31 CFR 901.3, as well as 31 CFR part 285, VA shall collect debts by 
administrative offset from payments made by VA to a debtor indebted to 
VA. Also in accordance with 31 CFR 901.3(b), as well as 31 CFR part 285, 
VA shall refer past due, legally enforceable non-tax debts which are 
over 180 days delinquent to Treasury for collection by centralized 
administrative offset (further procedures are set forth in paragraph (g) 
of this section). This section does not pertain to offset from either VA 
benefit payments made under the authority of 38 U.S.C. 5314 or from 
current salary, but does apply to offset from all other VA payments, 
including an employee's final salary check and lump-sum leave payment. 
Procedures for offset from benefit payments are found in Sec. 1.912a. 
Procedures for offset from current Federal salary are found in 
Sec. Sec. 1.980 through 1.995. NOTE: VA cannot offset, or refer for the 
purpose of offset, either under the authority of this section or under 
any other authority found in Sec. Sec. 1.900 through 1.953 and 
Sec. Sec. 1.980 through 1.995, any VA home loan program debt described 
in 38 U.S.C. 3726 unless the requirements set forth in that section have 
been met.
    (b) Notification. Prior to initiation of administrative offset, if 
not provided in the initial notice of indebtedness, VA is required to 
provide the debtor with written notice of:
    (1) The nature and amount of the debt;
    (2) VA's intention to pursue collection by offset procedures from 
the specified VA payment, the date of commencement of offset, and the 
exact amount to be offset;
    (3) The opportunity to inspect and copy VA records pertaining to the 
debt;
    (4) The right to contest either the existence or amount of the debt 
or the

[[Page 100]]

proposed offset schedule, or if applicable, to request a waiver of 
collection of the debt, or to request a hearing on any of these matters;
    (5) That commencement of offset will begin, unless the debtor makes 
a written request for the administrative relief discussed in paragraph 
(b)(4) of this section within 30 days of the date of this notice; and
    (6) The oppportunity to enter into a written agreement with VA to 
repay the debt in lieu of offset.
    (c) Deferral of offset. (1) If the debtor, within 30 days of the 
date of the notification required by paragraph (b) of this section, 
disputes in writing the existence or amount of the debt or the amount of 
the scheduled offset, offset shall not commence until the dispute is 
reviewed and a decision is rendered by VA adverse to the debtor.
    (2) If the debtor, within 30 days of the date of the required 
notification by VA, requests in writing the waiver of collection of the 
debt in accordance with Sec. 1.963, Sec. 1.963a, or Sec. 1.964, 
offset shall not commence until VA has made an initial decision to deny 
the waiver request.
    (3) If the debtor, within 30 days of the required notification by 
VA, requests in writing a hearing on the issues found in paragraphs 
(c)(1) and (2) of this section, offset shall not commence until a 
decision is rendered by VA on the issue which is the basis of the 
hearing.
    (d) Exceptions. (1) Offset may commence prior to either resolution 
of a dispute or decision on a waiver request as discussed in paragraph 
(c) of this section, if collection of the debt would be jeopardized by 
deferral of offset (for example, if VA first learns of the debt when 
there is insufficient time before a final payment would be made to the 
debtor to allow for prior notice and opportunity for review or waiver 
consideration). In such a case, notification pursuant to paragraph (b) 
of this section shall be made at the time offset begins or as soon 
thereafter as possible. VA shall promptly refund any money that has been 
collected that is ultimately found not to have been owed to the 
Government.
    (2) If the United States has obtained a judgment against the debtor, 
offset may commence without the notification required by paragraph (b) 
of this section. However, a waiver request filed in accordance with the 
time limits and other requirements of Sec. 1.963, Sec. 1.963a, or 
Sec. 1.964 will be considered, even if filed after a judgment has been 
obtained against the debtor. If waiver is granted, in whole or in part, 
refund of amounts already collected will be made in accordance with 
Sec. 1.967.
    (3) The procedures set forth in paragraph (b) of this section may be 
omitted when the debt arises under a contract that provides for notice 
and other procedural protections.
    (4) Offset may commence without the notification required by 
paragraph (b) of this section when the offset is in the nature of a 
recoupment. As defined in 31 CFR 900.2(d), recoupment is a special 
method for adjusting debts arising under the same transaction or 
occurrence.
    (e) Hearing. (1) After a debtor requests a hearing, VA shall notify 
the debtor of the form of the hearing to be provided; i.e., whether the 
hearing will either be oral or paper. If an oral hearing is determined 
to be proper by the hearing official, the notice shall set forth the 
date, time, and location of the hearing. If the hearing is to be a paper 
review, the debtor shall be notified that he or she should submit his or 
her position and arguments in writing to the hearing official by a 
specified date, after which the record shall be closed. This date shall 
give the debtor reasonable time to submit this information.
    (2) Unless otherwise required by law, an oral hearing under this 
paragraph is not required to be a formal evidentiary type of hearing.
    (3) A debtor who requests a hearing shall be provided an oral 
hearing if VA determines that the matter cannot be resolved by review of 
documentary evidence. Whenever an issue of credibility or veracity is 
involved, an oral hearing will always be provided the debtor. For 
example, the credibility or veracity of a debtor is always an issue 
whenever the debtor requests a waiver of collection of the debt. Thus, a 
hearing held in conjunction with a waiver request will always be an oral 
hearing. If a determination is made to provide an oral

[[Page 101]]

hearing, the hearing official may offer the debtor the opportunity for a 
hearing by telephone conference call. If this offer is rejected or if 
the hearing official declines to offer a telephone conference call, the 
debtor shall be provided an oral hearing permitting the personal 
appearance of the debtor, his or her personal representative, and 
witnesses. Witnesses shall testify under oath or affirmation.
    (4) In all other cases where a debtor requests a hearing, a paper 
hearing shall be provided. The debtor shall be provided an opportunity 
to submit material for the record. A paper hearing shall consist of a 
review of the written evidence of record by the designated hearing 
official.
    (f) Statutes of limitation; multiple debts. When collecting multiple 
debts by administrative offset, VA shall apply the recovered amounts to 
those debts in accordance with the best interests of the United States, 
as determined by the facts and circumstances of the particular case, 
paying special attention to applicable statutes of limitation. In 
accordance with 31 CFR 901.3(a)(4), VA may not initiate offset to 
collect a debt more than 10 years after VA's right to collect the debt 
first accrued (with certain exceptions as specified in 31 CFR 
901.3(a)(4)).
    (g) Centralized administrative offset. (1) When VA refers delinquent 
debts to Treasury for centralized administrative offset in accordance 
with 31 CFR part 285, VA must certify that:
    (i) The debts are past due and legally enforceable; and
    (ii) VA has complied with all due process requirements under 31 
U.S.C. 3716(a) and paragraphs (b) and (c) of this section.
    (2) Payments that are prohibited by law from being offset are exempt 
from centralized administrative offset.
    (h) Computer Matching and Privacy Act waiver. In accordance with 31 
U.S.C. 3716(f), the Secretary of the Treasury may waive the provisions 
of the Computer Matching and Privacy Protection Act of 1988 concerning 
matching agreements and post-match notification and verification (5 
U.S.C. 552a(o) and (p)) for centralized administrative offset upon 
receipt of a certification from a creditor agency that the due process 
requirements enumerated in 31 U.S.C. 3716(a) and paragraphs (b) and (c) 
of this section have been met. The certification of a debt in accordance 
with paragraph (g) of this section will satisfy this requirement. If 
such a waiver is granted, only the Data Integrity Board of the 
Department of the Treasury is required to oversee any matching 
activities, in accordance with 31 U.S.C. 3716(g).
    (i) Requests by creditor agencies for offset. Unless the offset 
would not be in VA's best interest, or would otherwise be contrary to 
law, VA will comply with requests by creditor agencies to offset VA 
payments (except for current salary or benefit payments) made to a 
person indebted to the creditor agency. However, before VA may initiate 
offset, the creditor agency must certify in writing to VA that the 
debtor has been provided:
    (1) Written notice of the type and amount of the debt and the intent 
of the creditor agency to use administrative offset to collect the debt;
    (2) The opportunity to inspect and copy agency records related to 
the debt;
    (3) The opportunity for review within the agency of the 
determination of the indebtedness; and
    (4) The opportunity to make a written agreement to repay the debt.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69 
FR 62194, Oct. 25, 2004]



Sec. 1.912a  Collection by offset--from VA benefit payments.

    (a) Authority and scope. VA shall collect debts governed by Sec. 
1.911 of this part by offset against any current or future VA benefit 
payments to the debtor. Unless paragraphs (c) or (d) of this section 
apply, offset shall commence promptly after notification to the debtor 
as provided in paragraph (b) of this section. Certain military service 
debts shall be collected by offset against current or future 
compensation or pension benefit payments to the debtor under authority 
of 38 U.S.C. 5301(c), as provided in paragraph (e) of this section.

[[Page 102]]

    (b) Notification. Unless paragraph (d) of this section applies, 
offset shall not commence until the debtor has been notified in writing 
of the matters described in Sec. 1.911(c) and (d) and paragraph (c) of 
this section.
    (c) Deferral of offset. (1) If the debtor, within thirty days of the 
date of the notification required by paragraph (b) of this section, 
disputes, in writing, the existence or amount of the debt in accordance 
with Sec. 1.911(c)(1), offset shall not commence until the dispute is 
reviewed as provided in Sec. 1.911(c)(1) and unless the resolution is 
adverse to the debtor.
    (2) If the debtor, within thirty days of the date of notification 
required by paragraph (b) of this section, requests, in writing, waiver 
of collection in accordance with Sec. 1.963 or Sec. 1.964, as 
applicable, offset shall not commence until the Department of Veterans 
Affairs has made an initial decision on waiver.
    (3) If the debtor, within thirty days of the notification required 
by paragraph (b) of this section, requests, in writing, a hearing on the 
waiver request, no decision shall be made on the waiver request until 
after the hearing has been held.
    (4) VA will pursue collection action once an adverse initial 
decision is reached on the debtor's request for waiver and/or the 
debtor's informal dispute (as described in Sec. 1.911(c)(1)) concerning 
the existence or amount of the debt, even if the debtor subsequently 
pursues appellate relief in accordance with parts 19 and 20 of this 
title.
    (d) Exceptions. Offset may commence prior to the resolution of a 
dispute or a decision on a waiver request if collection of the debt 
would be jeopardized by deferral of offset. In such case, notification 
pursuant to Sec. 1.911(d) shall be made at the time offset begins or as 
soon thereafter as possible.


(Authority: 38 U.S.C. 5314, Ch. 37)

    (e) Offset of military service debts. (1) In accordance with 38 
U.S.C. 5301(c), VA shall collect by offset from any current or future 
compensation or pension benefits payable to a veteran under laws 
administered by VA, the uncollected portion of the amount of any 
indebtedness associated with the veteran's participation in a plan 
prescribed in subchapter I or II of 10 U.S.C. chapter 73.
    (2) Offsets of a veteran's compensation or pension benefit payments 
to recoup indebtedness to the military services as described in 
paragraph (e)(1) of this section shall only be made by VA when the 
military service owed the debt has:
    (i) Determined the amount of the indebtedness of the veteran;
    (ii) Certified to VA that due process in accordance with the 
procedures prescribed in 31 U.S.C. 3716 have been provided to the 
veteran; and
    (iii) Requested collection of the total debt amount due.
    (3) Offset from any compensation or pension benefits under the 
authority of 38 U.S.C. 5301(c) shall not exceed 15% of the net monthly 
compensation or pension benefit payment. The net monthly compensation or 
pension benefit payment is defined as the authorized monthly 
compensation or pension benefit payment less all current deductions.

(Authority: 38 U.S.C. 5301(c) and 5314)

[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57 
FR 47263, Oct. 15, 1992; 69 FR 62194, Oct. 25, 2004]



Sec. 1.913  Liquidation of collateral.

    (a) VA should liquidate security or collateral through the exercise 
of a power of sale in the security instrument or a nonjudicial 
foreclosure, and apply the proceeds to the applicable debt, if the 
debtor fails to pay the debt within 180 days after demand and if such 
action is in the best interest of the United States. Collection from 
other sources, including liquidation of security or collateral, is not a 
prerequisite to requiring payment by a surety, insurer, or guarantor, 
unless such action is expressly required by statute or contract.
    (b) When VA learns that a bankruptcy petition has been filed with 
respect to a debtor, VA should seek legal advice from VA's General 
Counsel or Regional Counsel concerning the impact of the Bankruptcy 
Code, including, but not limited to, 11 U.S.C. 362, to determine the 
applicability of the automatic stay and the procedures for obtaining 
relief from such stay prior to

[[Page 103]]

proceeding under paragraph (a) of this section.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62195, Oct. 25, 2004]



Sec. 1.914  Collection in installments.

    (a) Whenever feasible, VA shall collect the total amount of a debt 
in one lump sum. If a debtor is financially unable to pay a debt in one 
lump sum, VA may accept payment in regular installments. VA should 
obtain financial statements from debtors who represent that they are 
unable to pay in one lump sum and independently verify such 
representations whenever possible. If VA agrees to accept payments in 
regular installments, VA should obtain a legally enforceable written 
agreement from the debtor that specifies all of the terms of the 
arrangement and contains a provision accelerating the debt in the event 
of default.
    (b) The size and frequency of installment payments should bear a 
reasonable relation to the size of the debt and the debtor's ability to 
pay. If possible, the installment payments should be sufficient in size 
and frequency to liquidate the debt in 3 years or less.
    (c) Security for deferred payments should be obtained in appropriate 
cases. However, VA may accept installment payments if the debtor refuses 
to execute a written agreement or to give security.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62195, Oct. 25, 2004]



Sec. 1.915  Interest, administrative costs and penalties.

    (a) Except as otherwise provided by statute, contract, or other 
regulation to the contrary, and subject to 38 U.S.C. 3485(e) and 5302, 
VA shall assess:
    (1) Interest on all indebtedness to the United States arising out of 
participation in a VA benefit, medical care, or home loan program under 
authority of Title 38, U.S. Code.
    (2) Interest and administrative costs of collection on such debts 
described in paragraph (a)(1) of this section where repayment has become 
delinquent (as defined in 31 CFR 900.2(b)), and
    (3) Interest, administrative costs, and penalties in accordance with 
31 CFR 901.9 on all debts other than those described in paragraph (a)(1) 
of this section.
    (b) Every party entering into an agreement with the Department of 
Veterans Affairs for repayment of indebtedness in installments shall be 
advised of the interest charges to be added to the debt. All debtors 
being provided notice of indebtedness, including those entering into 
repayment agreements, shall be advised that upon the debt becoming 
delinquent, or in the case of repayment of already delinquent debts, 
interest and the administrative costs of collection will be added to the 
principal amount of the debt.
    (c) The rate of interest charged by VA shall be based on the rate 
established annually by the Secretary of the Treasury in accordance with 
31 U.S.C. 3717 and shall be adjusted annually by VA on the first day of 
the calendar year. Once the rate of interest has been determined for a 
particular debt, the rate shall remain in effect throughout the duration 
of repayment of that debt. When a debtor defaults on a repayment 
agreement and seeks to enter into a new agreement, VA may require 
payment of interest at a new rate that reflects the current value of 
funds to the Treasury at the time the new agreement is executed. 
Interest shall not be compounded, that is, interest shall not be charged 
on accrued interest and administrative costs required by this section. 
If, however, a debtor defaults on a previous repayment agreement, 
interest and administrative costs that accrued but were not collected 
under the defaulted agreement shall be added to the principal under the 
new agreement.
    (d) Interest on amounts covered by this section shall accrue from 
the date the initial notice of the debt is mailed to the debtor. 
Notification shall be considered sufficient when effected by ordinary 
mail, addressed to the last known address, and such notice is not 
returned as undeliverable by postal authorities.
    (e) Interest under this section shall not be charged if the debt is 
paid in full within 30 days of mailing of the initial notice described 
in paragraph (b) of this section. Once interest begins to accrue, and 
after expiration of the time period for payment of the debt in full

[[Page 104]]

to avoid assessment of interest and administrative costs, any amount 
received toward the payment of such debt shall be first applied to 
payment of outstanding administrative cost charges and then to accrued 
interest or costs, and then to principal, unless a different rule is 
prescribed by statute, contract, or other regulation.
    (f) All or any part of the interest and administrative costs 
assessed under this section are subject to consideration for waiver 
under section 5302 of title 38 U.S.C., and appropriate administrative 
procedures.
    (1) In general, interest and administrative costs may be waived only 
when the principal of the debt on which they are assessed is waived by a 
Committee on Waivers and Compromises. However, VA may forbear collection 
of interest and administrative costs, exclusive of collection of the 
principal of the debt on which they are assessed, as well as terminate 
further assessment of interest and administrative costs when the 
collection of such interest and costs are determined to be not in the 
government's best interest. Collection of interest and administrative 
costs shall not be considered to be in the best interest of the 
government when the amount of assessed interest and administrative cost 
is so large that there is a reasonable certainty that the original debt 
will never be repaid. The determination to forbear collection of 
interest and administrative cost, exclusive of collection of the 
principal of the debt, shall be made by the Chief of the Fiscal activity 
at the station responsible for the collection of the debt. Such a 
determination is not within the jurisdiction of a Committee on Waivers 
and Compromises.
    (2) [Reserved]
    (g) Administrative costs assessed under this section shall be the 
average costs of collection of similar debts, or actual collection costs 
as may be accurately determined in the particular case. No 
administrative costs of collection will be assessed under this section 
in any cases where the indebtedness is paid in full prior to the 30-day 
period specified in paragraph (e) of this section, or in any case where 
a repayment plan is proposed by the debtor and accepted by VA within 
that 30-day period, unless such repayment agreement becomes delinquent 
(as defined in 31 CFR 900.2(b)).


(Authority: 31 U.S.C. 3717; 38 U.S.C. 501, 5302, 5315).

[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987. 
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]



Sec. 1.916  Disclosure of debt information to consumer reporting 
agencies (CRA).

    (a) The Department of Veterans Affairs may disclose all information 
determined to be necessary, including the name, address, Department of 
Veterans Affairs file number, Social Security number, and date of birth, 
to consumer reporting agencies for the purpose of--
    (1) Obtaining the location of an individual indebted to the United 
States as a result of participation in any benefits program administered 
by VA or indebted in any other manner to VA;
    (2) Obtaining a consumer report in order to assess an individuals 
ability to repay a debt when such individual has failed to respond to 
the Department's demand for repayment or when such individual has 
notified the Department that he/she will not repay the indebtedness; or
    (3) Obtaining the location of an individual in order to conduct 
program evaluation studies as required by 38 U.S.C. 527 or any other 
law.
    (b) Information disclosed by the Department of Veterans Affairs 
under paragraph (a) of this section to consumer reporting agencies shall 
neither expressly nor implicitly indicate that an individual is indebted 
to the United States nor shall such information be recorded by consumer 
reporting agencies in a manner that reflects adversely upon the 
individual. Prior to disclosing this information, the Department of 
Veterans Affairs shall ascertain that consumer reporting agencies with 
which it contracts are able to comply with this requirement. The 
Department of Veterans Affairs shall also make reasonable efforts to 
insure compliance by its contractor with this requirement.
    (c) Subject to the conditions set forth in paragraph (d) of this 
section, information concerning individuals may be

[[Page 105]]

disclosed to consumer reporting agencies for inclusion in consumer 
reports pertaining to the individual, or for the purpose of locating the 
individual. Disclosure of the fact of indebtedness will be made if the 
individual fails to respond in accordance with written demands for 
repayment, or refuses to repay a debt to the United States. In making 
any disclosure under this section, VA will provide consumer reporting 
agencies with sufficient information to identify the individual, 
including the individual's name, address, if known, date of birth, VA 
file number, and Social Security number.
    (d)(1) Prior to releasing information under paragraph (c) of this 
section, the Department of Veterans Affairs will send a notice to the 
individual. This notice will inform the individual that--
    (i) The Department of Veterans Affairs has determined that he or she 
is indebted to the Department of Veterans Affairs;
    (ii) The debt is presently delinquent; and
    (iii) The fact of delinquency may be reported to consumer reporting 
agencies after 30 days have elapsed from the date of the notice.
    (2)(i) In accordance with Sec. 1.911 and Sec. 1.911a, VA shall 
notify each individual of the right to dispute the existence and amount 
of the debt and to request a waiver of the debt, if applicable.
    (ii) If the Department of Veterans Affairs has not previously 
notified the individual of the rights described in paragraph (d)(2)(i) 
of this section, the Department of Veterans Affairs will include this 
information in the notice described in paragraph (d)(1) of this section. 
The individual shall be afforded a minimum of 30 days from the date of 
the notice to respond to it before information is reported to consumer 
reporting agencies.
    (3) The Department of Veterans Affairs will defer reporting 
information to a consumer reporting agency if the individual disputes 
the existence or amount of any debt or requests waiver of the debt 
within the time limits set forth in paragraph (d)(2)(ii) of this 
section. The Department of Veterans Affairs will review any dispute and 
notify the individual of its findings. If the original decision is 
determined to be correct, or if the individual's request for waiver is 
denied, the Department of Veterans Affairs may report the fact of 
delinquency to a consumer reporting agency. However, the individual 
shall be afforded 30 days from date of the notice of the agency's 
determination to repay the debt.
    (4) Nothing in this section affects an individual's right to appeal 
an agency decision to the Board of Veterans Appeals. However, 
information concerning the debt may be disclosed while an appeal is 
pending before the Board of Veterans Appeals.
    (5) Upon request, the Department of Veterans Affairs will notify an 
individual--
    (i) Whether information concerning a debt has been reported to 
consumer reporting agencies;
    (ii) Of the name and address of each consumer reporting agency to 
which information has been released; and
    (iii) Of the specific information released.

A notice of the right to request this information will be sent with the 
notice described in paragraph (d)(1) of this section.
    (e) Subsequent to disclosure of information to consumer reporting 
agencies as described in paragraph (c) of this section, the Department 
of Veterans Affairs shall:
    (1) Notify on a monthly basis each consumer reporting agency 
concerned of any substantial change in the status or amount of 
indebtedness.
    (2) Promptly verify any and all information disclosed if so 
requested by the consumer reporting agency concerned.
    (f) In the absence of a different rule prescribed by statute, 
contract, or other regulation, an indebtedness is considered delinquent 
if not paid by the individual by the date due specified in the notice of 
indebtedness, unless satisfactory arrangements are made by such date.
    (g) Notification shall be considered sufficient when effected by 
ordinary mail, addressed to the last known address, and such notice is 
not returned as undeliverable by postal authorities.
    (h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract 
between the Department of Veterans Affairs and a consumer reporting 
agency, nor

[[Page 106]]

does it apply to a consumer reporting agency and its employees. See 38 
U.S.C. 5701(i). This paragraph does not relieve the Department of 
Veterans Affairs of its obligation to comply with the Privacy Act.
    (i) The term ``consumer reporting agency'' means any person or 
agency which, for monetary fees, dues, or on a cooperative nonprofit 
basis, regularly engages in whole or in part in the practice of 
assembling or evaluating consumer credit information or other 
information on consumers for the purpose of furnishing consumer reports 
to third parties or to other consumer reporting agencies. The term 
``consumer reporting agency'' shall also mean any person or agency which 
serves as a marketing agent under arrangements enabling third parties to 
obtain such information from consumer reporting agencies, or which 
obtain such information for the purpose of furnishing it to consumer 
reporting agencies.

(Authority: 31 U.S.C. 3711(e); 38 U.S.C. 501, 5701(g) and (i)).

[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987. 
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]



Sec. 1.917  Contracting for collection services.

    (a) VA has authority to contract for collection services to recover 
delinquent debts, provided that:
    (1) The authority to resolve disputes, compromise claims, suspend or 
terminate collection and refer the matter for litigation shall be 
retained by VA;
    (2) The contractor shall be subject to 38 U.S.C. 5701, and to the 
Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C. 
552a(m), and to applicable Federal and State laws and regulations 
pertaining to debt collection practices, such as the Fair Debt 
Collection Practices Act, 15 U.S.C. 1692 et seq.
    (3) The contractor shall be required to strictly account for all 
amounts collected;
    (4) Upon returning an account to VA for subsequent referral to the 
Department of Justice for litigation, the contractor must agree to 
provide any data contained in its files relating to Sec. 1.951.
    (b) In accordance with 31 U.S.C. 3718(d), or as otherwise permitted 
by law, collection service contracts may be funded in the following 
manner:
    (1) VA may fund a collection service contract on a fixed-fee basis 
(i.e., payment of a fixed fee determined without regard to the amount 
actually collected under the contract). Payment of the fee under this 
type of contract must be charged to available appropriations;
    (2) VA may also fund a collection service contract on a contingent-
fee basis (i.e., by including a provision in the contract permitting the 
contractor to deduct its fee from amounts collected under the contract). 
The fee should be based upon a percentage of the amount collected, 
consistent with prevailing commercial practice;
    (3) VA may enter into a contract under paragraph (b)(1) of this 
section only if and to the extent that funding for the contract is 
provided for in advance by an appropriation act or other legislation, 
except that this requirement does not apply to the use of a revolving 
fund authorized by statute;
    (4) Except as authorized under paragraphs (b)(2) and (b)(5) of this 
section, or unless otherwise specifically provided by law, VA shall 
deposit all amounts recovered under collection service contracts for 
Loan Guaranty debts into the Loan Guaranty Revolving Fund, and for all 
other debts in the Treasury as miscellaneous receipts pursuant to 31 
U.S.C. 3302.
    (5) For benefit overpayments recovered under collection service 
contract, VA, pursuant to 31 U.S.C. 3302, shall deposit:
    (i) Amounts equal to the original overpayments in the appropriations 
account from which the overpayments were made, and
    (ii) Amount of interest or administrative costs in the Treasury as 
miscellaneous receipts.
    (c) VA shall use government-wide debt collection contracts to obtain 
debt collection services provided by private collection contractors. 
However, VA may refer debts to private collection contractors pursuant 
to a contract between VA and a private collection contractor only if 
such debts are not subject to the requirement to

[[Page 107]]

transfer debts to Treasury for debt collection. See 31 U.S.C. 3711(g), 
31 CFR 285.12(e), and 38 CFR 1.910.
    (d) VA may enter into contracts for locating and recovering assets 
of the United States, such as unclaimed assets.
    (e) VA may enter into contracts for debtor asset and income search 
reports. In accordance with 31 U.S.C. 3718(d), such contracts may 
provide that the fee a contractor charges the agency for such services 
may be payable from the amounts recovered, unless otherwise prohibited 
by statute.


(Authority: 31 U.S.C. 3718; 38 U.S.C. 501).

[52 FR 42107, Nov. 3, 1987. Redesignated and amended at 69 FR 62195, 
Oct. 25, 2004]



Sec. 1.918  Use and disclosure of mailing addresses.

    (a) When attempting to locate a debtor in order to compromise or 
collect a debt in accordance with Sec. Sec. 1.900 through 1.953, VA may 
send a request to the Secretary of the Treasury, or his/her designee, in 
order to obtain the debtor's most current mailing address from the 
records of the Internal Revenue Service.
    (b) VA is authorized to use mailing addresses obtained under 
paragraph (a) of this section to enforce collection of a delinquent debt 
and may disclose such mailing addresses to other agencies and to 
collection agencies for collection purposes.

(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196, 
Oct. 25, 2004]



Sec. 1.919  Administrative offset against amounts payable from Civil 

Service Retirement and Disability Fund, Federal Employees Retirement 
System (FERS), final 
          salary check, and lump sum leave payments.

    (a) Unless otherwise prohibited by law or regulation, and in 
accordance with 31 CFR 901.3(d), VA may request that money which is due 
and payable to a debtor from either the Civil Service Retirement and 
Disability Fund or FERS be administratively offset in reasonable amounts 
in order to collect, in one full payment or a minimal number of 
payments, debts that are owed to VA by the debtor. Such requests shall 
be made to the appropriate officials at the Office of Personnel 
Management (OPM) in accordance with such regulations prescribed by the 
Director of OPM. (See 5 CFR 831.1801 through 831.1808). In addition, VA 
may also offset against a Federal employee's final salary check and lump 
sum leave payment. See Sec. 1.912 for procedures for offset against a 
final salary check and lump sum leave payment.
    (b) When making a request to the Office of Personnel Management for 
administrative offset under paragraph (a) of this section, VA shall 
include a written certification that:
    (1) The debtor owes VA a debt, including the amount of the debt;
    (2) VA has complied with the applicable statutes, regulations, and 
procedures of the Office of Personnel Management; and
    (3) VA has complied with Sec. Sec. 1.911, 1.911a, 1.912, 1.912a, 
and 31 CFR 901.3, to the extent applicable, including any required 
hearing or review.
    (c) Once VA decides to request administrative offset from the Civil 
Service Retirement and Disability Fund or Federal Employees Retirement 
System (FERS) under paragraph (a) of this section, it shall make the 
request as soon as possible after completion of the applicable 
procedures in order that the Office of Personnel Management may identify 
the debtor's account in anticipation of the time when the debtor 
requests or becomes eligible to receive payments from the Fund or FERS. 
This will satisfy any requirement that offset be initiated prior to 
expiration of the applicable statutes of limitations. At such time as 
the debtor makes a claim for payments from the Fund or FERS, if at least 
a year has elapsed since the offset request was originally made, the 
debtor should be permitted to offer a satisfactory repayment plan in 
lieu of offset upon establishing that such offset will create financial 
hardship.
    (d) If VA collects all or part of the debt by other means before 
deductions are made or completed in accordance with paragraph (a) of 
this section, VA shall promptly act to modify or terminate its request 
for offset under paragraph (a) of this section.

[[Page 108]]

    (e) The Office of Personnel Management is neither required nor 
authorized by this section to review the merits of VA's determination 
with respect to the amount and validity of the debt waiver under 5 
U.S.C. 5584 or 38 U.S.C. 5302, or providing or not providing an oral 
hearing.

(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716; 38 U.S.C. 501).

[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196, 
Oct. 25, 2004]



Sec. 1.920  Referral of VA debts.

    (a) When authorized, VA may refer an uncollectible debt to another 
Federal or State agency for the purpose of collection action. Collection 
action may include the offsetting of the debt from any current or future 
payment, except salary (see paragraph (e) of this section), made by such 
Federal or State agency to the person indebted to VA.
    (b) VA must certify in writing that the individual owes the debt, 
the amount and basis of the debt, the date on which payment became due, 
and the date VA's right to collect the debt first accrued.
    (c) This certification will also state that VA provided the debtor 
with written notice of:
    (1) The nature and amount of the debt;
    (2) VA's intention to pursue collection by offset procedures;
    (3) The opportunity to inspect and copy VA records pertaining to the 
debt;
    (4) The right to contest both the existence and amount of the debt 
and to request a waiver of collection of the debt (if applicable), as 
well as the right to a hearing on both matters;
    (5) The opportunity to enter into a written agreement with VA for 
the repayment of the debt; and
    (6) Other applicable notices required by Sec. Sec. 1.911, 1.911a, 
1.912, and 1.912a.
    (d) The written certification required by paragraphs (b) and (c) of 
this section will also contain (for all debts) a listing of all actions 
taken by both VA and the debtor subsequent to the notice, as well as the 
dates of such actions.
    (e) The referral by VA of a VA debt to another agency for the 
purpose of salary offset shall be done in accordance with 38 CFR 1.980 
through 1.995 and regulations prescribed by the Director of the Office 
of Personnel Management (OPM) in 5 CFR part 550, subpart K.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196, 
Oct. 25, 2004]



Sec. 1.921  Analysis of costs.

    VA collection procedures should provide for periodic comparison of 
costs incurred and amounts collected. Data on costs and corresponding 
recovery rates for debts of different types and in various dollar ranges 
should be used to compare the cost effectiveness of alternative 
collection techniques, establish guidelines with respect to points at 
which costs of further collection efforts are likely to exceed 
recoveries, assist in evaluating offers in compromise, and establish 
minimum debt amounts below which collection efforts need not be taken.


(Authority: 31 U.S.C. 3711-3719; 38 U.S.C. 501).

[69 FR 62196, Oct. 25, 2004]



Sec. 1.922  Exemptions.

    (a) Sections 1.900 through 1.953, to the extent they reflect 
remedies or procedures prescribed by the Debt Collection Act of 1982 and 
the Debt Collection Improvement Act of 1996, such as administrative 
offset, use of credit bureaus, contracting for collection agencies, and 
interest and related charges, do not apply to debts arising under, or 
payments made under, the Internal Revenue Code of 1986, as amended (26 
U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.), 
except to the extent provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c); 
or the tariff laws of the United States. These remedies and procedures, 
however, may be authorized with respect to debts that are exempt from 
the Debt Collection Act of 1982 and the DCIA of 1996, to the extent that 
they are authorized under some other statute or the common law.
    (b) This section should not be construed as prohibiting the use of 
Sec. Sec. 1.900 through 1.953 when collecting debts owed by persons 
employed by agencies

[[Page 109]]

administering the laws cited in paragraph (a) of this section unless the 
debt arose under those laws.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62196, Oct. 25, 2004]



Sec. 1.923  Administrative wage garnishment.

    (a) In accordance with the procedures set forth in 31 U.S.C. 3720D 
and 31 CFR 285.11, VA or Treasury may request that a non-Federal 
employer garnish the disposable pay of an individual to collect 
delinquent non-tax debt owed to VA. VA may pursue wage garnishment 
independently in accordance with this section or VA or Treasury may 
pursue garnishment after VA refers a debt to Treasury in accordance with 
Sec. 1.910 of this part and 31 CFR 285.12. For the purposes of this 
section, any reference to Treasury also includes any private collection 
agency under contract to Treasury.
    (b) At least 30 days prior to the initiation of garnishment 
proceedings, VA or Treasury shall send a written notice, as described in 
31 CFR 285.11(e), by first class mail to the debtor's last known 
address. This notice shall inform the debtor of:
    (1) The nature and amount of the debt;
    (2) The intention of VA or Treasury to initiate proceedings to 
collect the debt through deductions from the debtor's pay until the debt 
and all accumulated interest, and other late payment charges, are paid 
in full, and;
    (3) An explanation of the debtor's rights, including the 
opportunity:
    (i) To inspect and copy VA records pertaining to the debt;
    (ii) To enter into a written repayment agreement with VA or Treasury 
under terms agreeable to VA or Treasury, and;
    (iii) To a hearing in accordance with 31 CFR 285.11(f) and paragraph 
(c) of this section concerning the existence or amount of the debt or 
the terms of the proposed repayment schedule under the garnishment 
order. However, the debtor is not entitled to a hearing concerning the 
terms of the proposed repayment schedule if these terms have been 
established by written agreement under paragraph (b)(3)(ii) of this 
section.
    (c) Any hearing conducted as part of the administrative wage 
garnishment process shall be conducted by the designated hearing 
official in accordance with the procedures set forth in 31 CFR 
285.11(f). This hearing official may be any VA Board of Contract Appeals 
Administrative Judge or Hearing Examiner, or any other VA hearing 
official. This hearing official may also conduct administrative wage 
garnishment hearings for other Federal agencies.
    (1) The hearing may be oral or written as determined by the 
designated hearing official. The hearing official shall provide the 
debtor with a reasonable opportunity for an oral hearing when the 
hearing official determines that the issue in dispute cannot be resolved 
by review of documentary evidence, for example, when the validity of the 
claim turns on the issue of credibility or veracity. The hearing 
official shall establish the time and place of any oral hearing. At the 
debtor's option, an oral hearing may be conducted either in person or by 
telephone conference call. A hearing is not required to be a formal, 
evidentiary-type hearing, but witnesses who testify in oral hearings 
must do so under oath or affirmation. While it is not necessary to 
produce a transcript of the hearing, the hearing official must maintain 
a summary record of the proceedings. All travel expenses incurred by the 
debtor in connection with an in-person hearing shall be borne by the 
debtor. VA or Treasury shall be responsible for all telephone expenses. 
In the absence of good cause shown, a debtor who fails to appear at a 
hearing will be deemed as not having timely filed a request for a 
hearing.
    (2) If the hearing official determines that an oral hearing is not 
necessary, then he/she shall afford the debtor a ``paper hearing.'' In a 
``paper hearing,'' the hearing official will decide the issues in 
dispute based upon a review of the written record.
    (3) If the debtor's written request for a hearing is received by 
either VA or Treasury within 15 business days following the mailing of 
the notice described in paragraph (b) of this section, then VA or 
Treasury shall not issue a

[[Page 110]]

withholding order as described in paragraph (d) of this section until 
the debtor is afforded the requested hearing and a decision rendered. If 
the debtor's written request for a hearing is not received within 15 
business days following the mailing of the notice described in paragraph 
(b) of this section, then the hearing official shall provide a hearing 
to the debtor, but will not delay issuance of a withholding order as 
described in paragraph (d) of this section, unless the hearing official 
determines that the delay in filing was caused by factors beyond the 
debtor's control.
    (4) The hearing official shall notify the debtor of:
    (i) The date and time of a telephone conference hearing;
    (ii) The date, time, and location of an in-person oral hearing, or;
    (iii) The deadline for the submission of evidence for a written 
hearing.
    (5) Except as provided in paragraph (c)(6)of this section, VA or 
Treasury shall have the burden of going forward to prove the existence 
or amount of the debt, after which the debtor must show, by a 
preponderance of the evidence, that no debt exists or that the amount of 
the debt is incorrect. In general, this means that the debtor must show 
that it is more likely than not that a debt does not exist or that the 
amount of the debt is incorrect. The debtor may also present evidence 
that terms of the repayment agreement are unlawful, would cause a 
financial hardship, or that collection of the debt may not be pursued 
due to operation of law.
    (6) If the debtor has previously contested the existence and/or 
amount of the debt in accordance with Sec. 1.911(c)(1) or Sec. 
1.911a(c)(1) and VA subsequently rendered a decision upholding the 
existence or amount of the debt, then such decision shall be 
incorporated by reference and become the basis of the hearing official's 
decision on such matters.
    (7) The hearing official shall issue a written decision as soon as 
practicable, but not later than 60 days after the date on which the 
request for such hearing was received by VA or Treasury. The decision 
will be the final action for the purposes of judicial review under the 
Administrative Procedure Act (5 U.S.C. 701 et seq.). The decision shall 
include:
    (i) A summary of the facts presented;
    (ii) The hearing official's findings, analysis, and conclusions, 
and;
    (iii) The terms of the repayment schedule, if applicable.
    (d) In accordance with 31 CFR 285.11(g) and (h), VA or Treasury 
shall send a Treasury-approved withholding order and certification form 
by first class mail to the debtor's employer within 30 days after the 
debtor fails to make a timely request for a hearing. If a timely request 
for a hearing has been filed by the debtor, then VA or Treasury shall 
send a withholding order and certification form by first class mail to 
the debtor's employer within 30 days after a final decision is made to 
proceed with the garnishment. The employer shall complete and return the 
certification form as described in 31 CFR 285.11(h).
    (e) After receipt of the garnishment order, the employer shall 
withhold the amount of garnishment as described in 31 CFR 285.11(i) from 
all disposable pay payable to the applicable debtor during each pay 
period.
    (f) A debtor whose wages are subject to a wage withholding order 
under 31 CFR 285.11 may request a review, under the procedures set forth 
in 31 CFR 285.11(k), of the amount garnished. A request for review shall 
only be considered after garnishment has been initiated. The request 
must be based on materially changed circumstances such as disability, 
divorce, or catastrophic illness which result in financial hardship that 
limit the debtor's ability to provide food, housing, clothing, 
transportation, and medical care for himself/herself and his/her 
dependents.


(Authority: 31 U.S.C. 3720D; 38 U.S.C. 501; 31 CFR 285.11).

[69 FR 62196, Oct. 25, 2004]



Sec. 1.924  Suspension or revocation of eligibility for federal loans, 
loan insurance, loan guarantees, licenses, permits, or privileges.

    (a) In accordance with 31 U.S.C. 3720B and the procedures set forth 
in 31 CFR 285.13 and Sec. 901.6, a person owing an outstanding non-tax 
debt that is in delinquent status shall not be eligible for

[[Page 111]]

Federal financial assistance unless exempted under paragraph (d) of this 
section or waived under paragraph (e) of this section.
    (b) Federal financial assistance or financial assistance means any 
Federal loan (other than a disaster loan), loan insurance, or loan 
guarantee.
    (c) For the purposes of this section only, a debt is in a delinquent 
status if the debt has not been paid within 90 days of the payment due 
date or by the end of any grace period provided by statute, regulation, 
contract, or agreement. The payment due date is the date specified in 
the initial written demand for payment. Further guidance concerning the 
delinquent status of a debt may be found at 31 CFR 285.13(d).
    (d) Upon the written request and recommendation of the Secretary of 
Veterans Affairs, the Secretary of the Treasury may grant exemptions 
from the provisions of this section. The standards for exemptions 
granted for classes of debts are set forth in 31 CFR 285.13(f).
    (e)(1) VA's Chief Financial Officer or Deputy Chief Financial 
Officer may waive the provisions of paragraph (a) of this section only 
on a person-by-person basis.
    (2) The Chief Financial Officer or Deputy Chief Financial Officer 
should balance the following factors when deciding whether to grant a 
waiver:
    (i) Whether the denial of the financial assistance to the person 
would tend to interfere substantially with or defeat the purposes of the 
financial assistance program or otherwise would not be in the best 
interests of the Federal government; and
    (ii) Whether the granting of the financial assistance to the person 
is contrary to the government's goal of reducing losses by requiring 
proper screening of potential borrowers.
    (3) When balancing the factors described in paragraph (e)(2)(i) and 
(e)(2)(ii) of this section, the Chief Financial Officer or Deputy Chief 
Financial Officer should consider:
    (i) The age, amount, and cause(s) of the delinquency and the 
likelihood that the person will resolve the delinquent debt; and
    (ii) The amount of the total debt, delinquent or otherwise, owed by 
the person and the person's credit history with respect to repayment of 
debt.
    (4) A centralized record shall be retained of the number and type of 
waivers granted under this section.
    (f) In non-bankruptcy cases, in seeking the collection of statutory 
penalties, forfeitures, or other similar types of claims, VA may suspend 
or revoke any license, permit, or other privilege granted a debtor when 
the debtor inexcusably or willfully fails to pay such a debt. The debtor 
should be advised in VA's written demand for payment of VA's ability to 
suspend or revoke licenses, permits, or privileges. VA may suspend or 
disqualify any lender, contractor, or broker who is engaged in making, 
guaranteeing, insuring, acquiring, or participating in loans from doing 
further business with VA or engaging in programs sponsored by VA if such 
lender, contractor, or broker fails to pay its debts to the Government 
within a reasonable time, or if such lender, contractor, or broker has 
been suspended, debarred, or disqualified from participation in a 
program or activity by another Federal agency. The failure of any surety 
to honor its obligations in accordance with 31 U.S.C. 9305 should be 
reported to Treasury.
    (g) In bankruptcy cases, before advising the debtor of the intention 
to suspend or revoke licenses, permits, or privileges, VA should seek 
legal advice from VA's General Counsel or Regional Counsel concerning 
the impact of the Bankruptcy Code, particularly 11 U.S.C. 362 and 525, 
which may restrict such action.


(Authority: 31 U.S.C. 3720B; 38 U.S.C. 501).

[69 FR 62197, Oct. 25, 2004]



Sec. 1.929  Reduction of debt through performance of work-study services.

    (a) Scope. (1) Subject to the provisions of this section VA may 
allow an individual to reduce an indebtedness to the United States 
through offset of benefits to which the individual becomes entitled by 
performance of work-study services under 38 U.S.C. 3485 and 3537 when 
the debt arose by virtue of the individual's participation in a benefits 
program provided under any of the following:

[[Page 112]]

    (i) 38 U.S.C. chapter 30;
    (ii) 38 U.S.C. chapter 31;
    (iii) 38 U.S.C. chapter 32;
    (iv) 38 U.S.C. chapter 34;
    (v) 38 U.S.C. chapter 35;
    (vi) 38 U.S.C. chapter 36 (other than an education loan provided 
under subpart F, part 21 of this title); or
    (vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising 
from a refund penalty imposed under 10 U.S.C. 16135).
    (2) This section shall not apply in any case in which the individual 
has a pending request for waiver of the debt under Sec. Sec. 1.950 
through 1.970.


(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)

    (b) Selection criteria. (1) If there are more candidates for a work-
study allowance than there are work-study positions available in the 
area in which the services are to be performed, VA will give priority to 
the candidates who are pursuing a program of education or 
rehabilitation.
    (2) Only after all candidates in the area described in paragraph 
(b)(1) of this section either have been given work-study contracts or 
have withdrawn their request for contracts will VA offer contracts to 
those who are not pursuing a program of education or rehabilitation and 
who wish to reduce their indebtedness through performance of work-study 
services.
    (3) VA shall not offer a contract to an individual who is receiving 
compensation from another source for the work-study services the 
individual wishes to perform.
    (4) VA shall not offer a contract to an individual if VA determines 
that the debt can be collected through other means such as collection in 
a lump sum, collection in installments as provided in Sec. 1.917 or 
compromise as provided in Sec. 1.918.


(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)

    (c) Utilization. The work-study services to be performed under a 
debt-liquidation contract will be limited as follows:
    (1) If the individual is concurrently receiving educational 
assistance in a program administered by VA, work-study services are 
limited to those allowed in the educational program under which the 
individual is receiving benefits.
    (2) If the individual is not concurrently receiving educational 
assistance in a program administered by VA, the individual may perform 
only those work-study services and activities which are or were open to 
those students receiving a work-study allowance while pursuing a program 
of education pursuant to the chapter under which the debt was incurred.


(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)

    (d) Contract to perform services. (1) The work-study services 
performed to reduce indebtedness shall be performed pursuant to a 
contract between the individual and VA.
    (2) The individual shall perform the work-study services required by 
the contract at the place or places designated by VA.
    (3) The number of hours of services to be performed under the 
contract must be sufficient to enable the individual to become entitled 
to a sum large enough to liquidate the debt by offset.
    (4) The number of weeks in the contract will not exceed the lesser 
of--
    (i) The number of weeks of services the individual needs to perform 
to liquidate his or her debt; or
    (ii) 52.
    (5) In determining the number of hours per week and the number of 
weeks under paragraphs (d)(3) and (d)(4) of this section necessary to 
liquidate the debt, VA will use the amount of the account receivable, 
including all accrued interest, administrative costs and marshall fees 
outstanding on the date the contract is offered to the individual and 
all accrued interest, administrative costs and marshall fees VA 
estimates will have become outstanding on the debt on the date the debt 
is to be liquidated.
    (6) The contract will automatically terminate after the total amount 
of the individual's indebtedness described in paragraph (d)(5) of this 
section has been recouped, waived, or otherwise liquidated. An 
individual performing work-study services under a contract to liquidate 
a debt is released from the contract if the debt is liquidated by other 
means.

[[Page 113]]

    (7) The contract to perform work-study services for the purpose of 
liquidating indebtedness will be terminated if:
    (i) The individual is liquidating his or her debt under this section 
while receiving either an educational assistance allowance for further 
pursuit of a program of education or a subsistence allowance for further 
pursuit of a program of rehabilitation;
    (ii) The individual terminates or reduces the rate of pursuit of his 
or her program of education or rehabilitation; and
    (iii) The termination or reduction causes an account receivable as a 
debt owed by the individual.
    (8) VA may terminate the contract at any time the individual fails 
to perform the services required by the contract in a satisfactory 
manner.


(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)

    (e) Reduction of indebtedness. (1) In return for the individual's 
agreement to perform hours of services totaling not more than 40 times 
the number of weeks in the contract, VA will reduce the eligible 
person's outstanding indebtedness by an amount equal to the higher of--
    (i) The hourly minimum wage in effect under section 6(a) of the Fair 
Labor Standards Act of 1938 times the number of hours the individual 
works; or
    (ii) The hourly minimum wage under comparable law of the State in 
which the services are performed times the number of hours the 
individual works.
    (2) VA will reduce the individual's debt by the amount of the money 
earned for the performance of work-study services after the completion 
of each 50 hours of services (or in the case of any remaining hours 
required by the contract, the amount for those hours).


(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)

    (f) Suspension of collections by offset. Notwithstanding the 
provisions of Sec. 1.912a, during the period covered by the work-study 
debt-liquidation contract with the individual, VA will ordinarily 
suspend the collection by offset of a debt described in paragraph (a)(1) 
of this section. However, the individual may voluntarily permit VA to 
collect part of the debt through offset against other benefits payable 
while the individual is performing work-study services. If the contract 
is terminated before its scheduled completion date, and the debt has not 
been liquidated, collection through offset against other benefits 
payable will resume on the date the contract terminates.


(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)

    (g) Payment for additional hours. (1) If an individual, without 
fault on his or her part, performs work-study services for which payment 
may not be authorized, including services performed after termination of 
the contract, VA will pay the individual at the applicable hourly 
minimum wage for such services as the Director of the VA field station 
of jurisdiction determines were satisfactorily performed.
    (2) The Director of the VA field station of jurisdiction shall 
determine whether the individual was without fault. In making this 
decision he or she shall consider all evidence of record and any 
additional evidence which the individual wishes to submit.

(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)

[62 FR 15401, Apr. 1, 1997]

                   Standards for Compromise of Claims

    Authority: Sections 1.900 through 1.953 are issued under the 
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted 
in specific sections.

    Source: 32 FR 2614, Feb. 8, 1967, unless otherwise noted.



Sec. 1.930  Scope and application.

    (a) The standards set forth in Sec. Sec. 1.930 through 1.936 of 
this part apply to the compromise of debts pursuant to 31 U.S.C. 3711. 
VA may exercise such compromise authority when the amount of the debt 
due, exclusive of interest, penalties, and administrative costs, does 
not exceed $100,000 or any higher amount authorized by the Attorney 
General.
    (b) Unless otherwise provided by law, when the principal balance of 
a debt, exclusive of interest, penalties, and administrative costs, 
exceeds $100,000 or any higher amount authorized by the

[[Page 114]]

Attorney General, the authority to accept the compromise rests with the 
Department of Justice (DOJ). If VA receives an offer to compromise any 
debt in excess of $100,000, VA should evaluate the compromise offer 
using the same factors as set forth in Sec. 1.931 of this part. If VA 
believes the offer has merit, it shall refer the debt to the Civil 
Division or other appropriate division in DOJ using a Claims Collection 
Litigation Report (CCLR). The referral shall include appropriate 
financial information and a recommendation for the acceptance of the 
compromise offer. DOJ approval is not required if VA decides to reject a 
compromise offer.
    (c) The $100,000 limit in paragraph (b) of this section does not 
apply to debts that arise out of participation in a VA loan program 
under Chapter 37 of Title 38 of the U.S. Code. VA has unlimited 
authority to compromise debts arising out of participation in a Chapter 
37 loan program, regardless of the amount of the debt.


(Authority: 31 U.S.C. 3711; 38 U.S.C 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.931  Bases for compromise.

    (a) VA may compromise a debt if it cannot collect the full amount 
because:
    (1) The debtor is unable to pay the full amount in a reasonable 
time, as verified through credit reports or other financial information;
    (2) VA is unable to collect the debt in full within a reasonable 
time by enforced collection proceedings;
    (3) The cost of collecting the debt does not justify the enforced 
collection of the full amount; or
    (4) There is significant doubt concerning VA's ability to prove its 
case in court.
    (b) In determining the debtor's inability to pay, VA will consider 
relevant factors such as the following:
    (1) Age and health of the debtor;
    (2) Present and potential income;
    (3) Inheritance prospects;
    (4) The possibility that assets have been concealed or improperly 
transferred by the debtor; and
    (5) The availability of assets or income that may be realized by 
enforced collection proceedings.
    (c) VA will verify the debtor's claim of inability to pay by using a 
credit report and other financial information as provided in paragraph 
(g) of this section. VA should consider the applicable exemptions 
available to the debtor under State and Federal law in determining the 
ability to enforce collection. VA also may consider uncertainty as to 
the price that collateral or other property will bring at a forced sale 
in determining the ability to enforce collection. A compromise effected 
under this section should be for an amount that bears a reasonable 
relation to the amount that can be recovered by enforced collection 
procedures, with regard to the exemptions available to the debtor and 
the time that collection will take.
    (d) If there is significant doubt concerning VA's ability to prove 
its case in court for the full amount claimed, either because of the 
legal issues involved or because of a bona fide dispute as to the facts, 
then the amount accepted in compromise of such cases should fairly 
reflect the probabilities of successful prosecution to judgment, with 
due regard given to the availability of witnesses and other evidentiary 
support for VA's claim. In determining the risks involved in litigation, 
VA will consider the probable amount of court costs and attorney fees 
pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, that may be 
imposed against the Government if it is unsuccessful in litigation.
    (e) VA may compromise a debt if the cost of collecting the debt does 
not justify the enforced collection of the full amount. The amount 
accepted in compromise in such cases may reflect an appropriate discount 
for the administrative and litigative costs of collection, with 
consideration given to the time it will take to effect collection. 
Collection costs may be a substantial factor in the settlement of small 
debts. In determining whether the cost of collecting justifies enforced 
collection of the full amount, VA will consider whether continued 
collection of the debt, regardless of cost, is necessary to further an 
enforcement principle.
    (f) VA generally will not accept compromises payable in 
installments. If, however, payment of a compromise in

[[Page 115]]

installments is necessary, VA will obtain a legally enforceable written 
agreement providing that, in the event of default, the full original 
principal balance of the debt prior to compromise, less sums paid 
thereon, is reinstated. Whenever possible, VA will also obtain security 
for repayment.
    (g) To assess the merits of a compromise offer based in whole or in 
part on the debtor's inability to pay the full amount of a debt within a 
reasonable time, VA will obtain a current financial statement from the 
debtor showing the debtor's assets, liabilities, income, and expenses. 
Agencies also may obtain credit reports or other financial information 
to assess compromise offers.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.932  Enforcement policy.

    VA may compromise statutory penalties, forfeitures, or claims 
established as an aid to enforcement and to compel compliance, if VA's 
enforcement policy in terms of deterrence and securing compliance, 
present and future, will be adequately served by VA's acceptance of the 
sum to be agreed upon.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.933  Joint and several liability.

    (a) When two or more debtors are jointly and severally liable, VA 
will pursue collection activity against all debtors, as appropriate. VA 
will not attempt to allocate the burden of payment between the debtors 
but should proceed to liquidate the indebtedness as quickly as possible.
    (b) VA will ensure that a compromise agreement with one debtor does 
not release VA's claim against the remaining debtors. The amount of a 
compromise with one debtor shall not be considered a precedent or 
binding in determining the amount that will be required from other 
debtors jointly and severally liable on the claim.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.934  Further review of compromise offers.

    If VA is uncertain whether to accept a firm, written, substantive 
compromise offer on a debt that is within its delegated compromise 
authority, it may refer the offer to VA General Counsel or Regional 
Counsel or to the Civil Division or other appropriate division in the 
Department of Justice (DOJ), using a Claims Collection Litigation Report 
(CCLR) accompanied by supporting data and particulars concerning the 
debt. DOJ may act upon such an offer or return it to the agency with 
instructions or advice.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.935  Consideration of tax consequences to the Government.

    In negotiating a compromise, VA will consider the tax consequences 
to the Government. In particular, VA will consider requiring a waiver of 
tax-loss-carry-forward and tax-loss-carry-back rights of the debtor.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]



Sec. 1.936  Mutual releases of the debtor and VA.

    In all appropriate instances, a compromise that is accepted by VA 
shall be implemented by means of a mutual release, in which the debtor 
is released from further non-tax liability on the compromised debt in 
consideration of payment in full of the compromise amount, and VA and 
its officials, past and present, are released and discharged from any 
and all claims and causes of action that the debtor may have arising 
from the same transaction. In the event a mutual release is not executed 
when a debt is compromised, unless prohibited by law, the debtor is 
still deemed to have waived any and all claims and causes of action 
against VA and its officials related to the transaction giving rise to 
the compromised debt.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[69 FR 62198, Oct. 25, 2004]

[[Page 116]]

        Standards for Suspending or Terminating Collection Action

    Authority: Sections 1.900 through 1.953 are issued under the 
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted 
in specific sections.

    Source: 32 FR 2615, Feb. 8, 1967, unless otherwise noted.



Sec. 1.940  Scope and application.

    (a) The standards set forth in Sec. Sec. 1.940 through 1.944 apply 
to the suspension or termination of collection activity pursuant to 31 
U.S.C. 3711 on debts that do not exceed $100,000, or such other amount 
as the Attorney General may direct, exclusive of interest, penalties, 
and administrative costs, after deducting the amount of partial payments 
or collections, if any. Prior to referring a debt to the Department of 
Justice (DOJ) for litigation, VA may suspend or terminate collection 
under this part with respect to the debt.
    (b) If, after deducting the amount of any partial payments or 
collections, the principal amount of a debt exceeds $100,000, or such 
other amount as the Attorney General may direct, exclusive of interest, 
penalties, and administrative costs, the authority to suspend or 
terminate rests solely with DOJ. If VA believes that suspension or 
termination of any debt in excess of $100,000 may be appropriate, it 
shall refer the debt to the Civil Division or other appropriate division 
in DOJ, using the Claims Collection Litigation Report (CCLR). The 
referral should specify the reasons for VA's recommendation. If, prior 
to referral to DOJ, VA determines that a debt is plainly erroneous or 
clearly without legal merit, VA may terminate collection activity 
regardless of the amount involved without obtaining DOJ concurrence.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62199, Oct. 25, 2004]



Sec. 1.941  Suspension of collection activity.

    (a) VA may suspend collection activity on a debt when:
    (1) It cannot locate the debtor;
    (2) The debtor's financial condition is expected to improve; or
    (3) The debtor has requested a waiver or review of the debt.
    (b) Based on the current financial condition of the debtor, VA may 
suspend collection activity on a debt when the debtor's future prospects 
justify retention of the debt for periodic review and collection 
activity and:
    (1) The applicable statute of limitations has not expired; or
    (2) Future collection can be effected by administrative offset, 
notwithstanding the expiration of the applicable statute of limitations 
for litigation of claims, and with due regard to the 10-year limitation 
for administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
    (3) The debtor agrees to pay interest on the amount of the debt on 
which collection will be suspended, and such suspension is likely to 
enhance the debtor's ability to pay the full amount of the principal of 
the debt with interest at a later date.
    (c) Collection action may also be suspended, in accordance with 
Sec. Sec. 1.911, 1.911a, 1.912, and 1.912a, pending VA action on 
requests for administrative review of the existence or amount of the 
debt or a request for waiver of collection of the debt. However, 
collection action will be resumed once VA issues an initial decision on 
the administrative review or waiver request.
    (d) When VA learns that a bankruptcy petition has been filed with 
respect to a debtor, in most cases the collection activity on a debt 
must be suspended, pursuant to the provisions of 11 U.S.C. 362, 1201, 
and 1301, unless VA can clearly establish that the automatic stay does 
not apply, has been lifted, or is no longer in effect. VA shall seek 
legal advice immediately from either the VA General Counsel or Regional 
Counsel and, if legally permitted, take the necessary steps to ensure 
that no funds or money are paid by VA to the debtor until relief from 
the automatic stay is obtained.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62199, Oct. 25, 2004]

[[Page 117]]



Sec. 1.942  Termination of collection activity.

    Termination of collection activity involves a final determination. 
Collection activity may be terminated on cases previously suspended. The 
Department of Veterans Affairs may terminate collection activity and 
consider closing the agency file on a claim which meets any one of the 
following standards:
    (a) Inability to collect any substantial amount. Collection action 
may be terminated on a claim when it becomes clear that VA cannot 
collect or enforce collection of any significant amount from the debtor, 
having due regard for the judicial remedies available to the agency, the 
debtor's future financial prospects, and the exemptions available to the 
debtor under State and Federal law. In determining the debtor's 
inability to pay, the following factors, among others, shall be 
considered: Age and health of the debtor, present and potential income, 
inheritance prospects, the possibility that assets have been concealed 
or improperly transferred by the debtor, the availability of assets or 
income which may be realized by means of enforced collection 
proceedings.
    (b) Inability to locate debtor. The debtor cannot be located, no 
security remains to be liquidated, the applicable statute of limitations 
has run, and the prospects of collecting by offset are too remote.
    (c) Death of debtor. The debtor is determined to be deceased and the 
Government has no prospect of collection from his/her estate.
    (d) Cost will exceed recovery. The cost of further collection effort 
is likely to exceed the amount recoverable.
    (e) Claim legally without merit. Collection action should be 
terminated on a claim whenever it is determined that the claim is 
legally without merit.
    (f) Claim cannot be substantiated by evidence. VA will terminate 
collection action on once asserted claims because of lack of evidence or 
unavailability of witnesses only in cases where efforts to induce 
voluntary payment are unsuccessful.
    (g) Discharge in bankruptcy. Generally, VA shall terminate 
collection activity on a debt that has been discharged in bankruptcy, 
regardless of the amount. VA may continue collection activity, subject 
to the provisions of the Bankruptcy Code, for any payments provided 
under a plan of reorganization. Offset and recoupment rights may survive 
the discharge of the debtor in bankruptcy and, under some circumstances, 
claims also may survive the discharge.
    (h) Before terminating collection activity, VA should have pursued 
all appropriate means of collection and determined, based upon the 
results of the collection activity, that the debt is uncollectible. 
Termination of collection activity ceases active collection of the debt. 
The termination of collection activity does not preclude VA from 
retaining a record of the account for purposes of:
    (1) Selling the debt, if the Secretary of the Treasury determines 
that such sale is in the best interests of the United States;
    (2) Pursuing collection at a subsequent date in the event there is a 
change in the debtor's status or a new collection tool becomes 
available;
    (3) Offsetting against future income or assets not available at the 
time of termination of collection activity; or
    (4) Screening future applicants for prior indebtedness.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987; 69 
FR 62200, Oct. 25, 2004]



Sec. 1.943  Exception to termination.

    When a significant enforcement policy is involved, or recovery of a 
judgment is a prerequisite to the imposition of administrative 
sanctions, VA may refer debts for litigation even though termination of 
collection activity may otherwise be appropriate.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]



Sec. 1.944  Discharge of indebtedness; reporting requirements.

    (a) Before discharging a delinquent debt (also referred to as a 
close out of the debt), VA shall take all appropriate steps to collect 
the debt in accordance

[[Page 118]]

with 31 U.S.C. 3711(g), including, as applicable, administrative offset, 
tax refund offset, Federal salary offset, referral to Treasury or 
Treasury-designated debt collection centers or private collection 
contractors, credit bureau reporting, wage garnishment, litigation, and 
foreclosure. Discharge of indebtedness is distinct from termination or 
suspension of collection activity under Sec. Sec. 1.940 through 1.943 
and is governed by the Internal Revenue Code (see 26 U.S.C. 6050P). When 
collection action on a debt is suspended or terminated, the debt remains 
delinquent and further collection action may be pursued at a later date 
in accordance with the standards set forth in Sec. Sec. 1.900 through 
1.953. When VA discharges a debt in full or in part, further collection 
action is prohibited. Therefore, VA should make the determination that 
collection action is no longer warranted before discharging a debt. 
Before discharging a debt, VA must terminate debt collection action.
    (b) Upon discharge of an indebtedness, VA must report the discharge 
to the Internal Revenue Service (IRS) in accordance with the 
requirements of 26 U.S.C. 6050P and 26 CFR 1.6050P-1. VA may request 
Treasury or Treasury-designated debt collection centers to file such a 
discharge report to the IRS on VA's behalf.
    (c) When discharging a debt, VA must request that any liens of 
record securing the debt be released.
    (d) 31 U.S.C. 3711(i)(2) requires agencies to sell a delinquent 
nontax debt upon termination of collection action if the Secretary of 
the Treasury determines such a sale is in the best interests of the 
United States. Since the discharge of a debt precludes any further 
collection action (including the sale of a delinquent debt), VA may not 
discharge a debt until the requirements of Sec. 3711(i)(2) have been 
met.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]

             Referrals to GAO, Department of Justice, or IRS

    Authority: Sections 1.900 through 1.953 are issued under the 
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted 
in specific sections.

    Source: 52 FR 42111, 42112, Nov. 3, 1987, unless otherwise noted.



Sec. 1.950  Prompt referral.

    (a) VA shall promptly refer debts to Department of Justice (DOJ) for 
litigation where aggressive collection activity has been taken in 
accordance with Sec. Sec. 1.900 through 1.953, and such debts cannot be 
compromised, or on which collection activity cannot be suspended or 
terminated, in accordance with Sec. Sec. 1.930 through 1.936 and 
Sec. Sec. 1.940 through 1.944. Debts for which the principal amount is 
over $1,000,000, or such other amount as the Attorney General may 
direct, exclusive of interest and other late payment charges, shall be 
referred to the Civil Division or other division responsible for 
litigating such debts at DOJ. Debts for which the principal amount is 
$1,000,000, or less, or such other amount as the Attorney General may 
direct, exclusive of interest or penalties, shall be referred to DOJ's 
Nationwide Central Intake Facility as required by the Claims Collection 
Litigation Report (CCLR) instructions. Debts should be referred as early 
as possible, consistent with aggressive agency collection activity and 
the observance of the standards contained in Sec. Sec. 1.900 through 
1.953, and, in any event, well within the period for initiating timely 
lawsuits against the debtors. VA shall make every effort to refer 
delinquent debts to DOJ for litigation within 1 year of the date such 
debts last became delinquent. In the case of guaranteed or insured 
loans, VA should make every effort to refer these delinquent debts to 
DOJ for litigation within 1 year from the date the loan was presented to 
VA for payment or reinsurance.
    (b) DOJ has exclusive jurisdiction over the debts referred to it 
pursuant to this section. VA shall immediately terminate the use of any 
administrative collection activities to collect a debt at the time of 
the referral of that debt to DOJ. VA should advise DOJ of the collection 
activities that have been utilized to date, and their result. VA shall 
refrain from having any contact with the debtor and shall direct all 
debtor inquiries concerning the debt to DOJ. VA shall immediately notify 
DOJ

[[Page 119]]

of any payments credited to the debtor's account after referral of a 
debt under this section. DOJ shall notify VA, in a timely manner, of any 
payments it receives from the debtor.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]



Sec. 1.951  Claims Collection Litigation Report (CCLR).

    (a) Unless excepted by the Department of Justice (DOJ), VA shall 
complete the CCLR, accompanied by a signed Certificate of Indebtedness, 
to refer all administratively uncollectible claims to DOJ for 
litigation. VA shall complete all of the sections of the CCLR 
appropriate to each claim as required by the CCLR instructions and 
furnish such other information as may be required in specific cases.
    (b) VA shall indicate clearly on the CCLR the actions it wishes DOJ 
to take with respect to the referred claim.
    (c) VA shall also use the CCLR to refer claims to DOJ to obtain 
approval of any proposals to compromise the claims or to suspend or 
terminate agency collection activity.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]



Sec. 1.952  Preservation of evidence.

    VA must take care to preserve all files and records that may be 
needed by the Department of Justice (DOJ) to prove its claims in court. 
VA ordinarily should include certified copies of the documents that form 
the basis for the claim when referring such claims to DOJ for 
litigation. VA shall provide originals of such documents immediately 
upon request by DOJ.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]



Sec. 1.953  Minimum amount of referrals to the Department of Justice.

    (a) Except as otherwise provided in paragraphs (b) and (c) of this 
section, VA shall not refer for litigation claims of less than $2,500, 
exclusive of interest, penalties, and administrative costs, or such 
other minimum amount as the Attorney General shall from time to time 
prescribe. The Department of Justice (DOJ) shall promptly notify 
referring agencies if the Attorney General changes this minimum amount.
    (b) VA shall not refer claims of less than the minimum amount 
prescribed by the Attorney General unless:
    (1) Litigation to collect such smaller claims is important to ensure 
compliance with VA's policies or programs;
    (2) The claim is being referred solely for the purpose of securing a 
judgment against the debtor, which will be filed as a lien against the 
debtor's property pursuant to 28 U.S.C. 3201 and returned to VA for 
enforcement; or
    (3) The debtor has the clear ability to pay the claim and the 
Government effectively can enforce payment, with due regard for the 
exemptions available to the debtor under State and Federal law and the 
judicial remedies available to the Government.
    (c) VA should consult with the Financial Litigation Staff of the 
Executive Office for United States Attorneys, in DOJ, prior to referring 
claims valued at less than the minimum amount.


(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).

[69 FR 62200, Oct. 25, 2004]



Sec. 1.955  Regional office Committees on Waivers and Compromises.

    (a) Delegation of authority and establishment. (1) Sections 1.955 et 
seq. are issued to implement the authority for waiver consideration 
found in 38 U.S.C. 5302 and 5 U.S.C. 5584 and the compromise authority 
found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The duties, delegations of 
authority, and all actions required of the Committees on Waivers and 
Compromises are to be accomplished under the direction of, and authority 
vested in, the Director of the regional office. Delegations of authority 
and limitations for waiver actions under 5 U.S.C. 5584 are set forth in 
Sec. 1.963a of this part.
    (2) There is established in each regional office, a Committee on 
Waivers and Compromises to perform the duties and assume the 
responsibilities delegated by Sec. Sec. 1.956 and 1.957. The term 
regional office, as used in Sec. 1.955 et seq., includes VA Medical and 
Regional Office Centers and VA Centers where such are established.

[[Page 120]]

    (b) Selection. The Director shall designate the employees to serve 
as Chairperson, members, and alternates. Except upon specific 
authorization of the Under Secretary for Benefits, when workload 
warrants a full-time committee, such designation will be part-time 
additional duty upon call of the Chairperson.
    (c) Control and staff. The administrative control of each Committee 
on Waivers and Compromises is the responsibility of the station's Fiscal 
Officer. However, the station Director has the authority to reassign the 
administrative control function to another station activity, rather than 
the Fiscal Officer, whenever the Director determines that such 
reassignment is appropriate. The quality control of the professional and 
clerical staff of the Committee is the responsibility of the 
Chairperson.
    (d) Overall control. The Assistant Secretary for Management is 
delegated complete management authority, including planning, policy 
formulation, control, coordination, supervision, and evaluation of 
Committee operations.
    (e) Committee composition. (1) The Committee shall consist of a 
Chairperson and Alternate Chairperson and as many Committee members and 
alternate members as the Director may appoint. Members and alternates 
shall be selected so that in each of the debt claim areas (i.e., 
compensation, pension, education, insurance, loan guaranty, etc.) there 
are members and alternates with special competence and familiarity with 
the program area.
    (2) When a claim is properly referred to the Committee for either 
waiver consideration or the consideration of a compromise offer, the 
Chairperson shall designate a panel from the available Committee members 
to consider the waiver request or compromise offer. If the debt for 
which the waiver request or compromise offer is made is $20,000 or less 
(exclusive or interest and administrative costs), the Chairperson will 
assign one Committee member as the panel. This one Committee member 
should have experience in the program area where the debt is located. 
The single panel member's decision shall stand as the decision of the 
Committee. If the debt for which the waiver request or compromise offer 
is made is more than $20,000 (exclusive of interest and administrative 
costs), the Chairperson shall assign two Committee members. One of the 
two members should be knowledgeable in the program area where the debt 
arose. If the two member panel cannot reach a unanimous decision, the 
Chairperson shall assign a third member of the Committee to the panel, 
or assign the case to three new members, and the majority vote shall 
determine the Committee decision.
    (3) The assignment of a one or two member panel as described in 
paragraph (e)(2) of this section is applicable if the debtor files a 
Notice of Disagreement with a Committee decision to deny waiver. That 
is, if the Notice of Disagreement is filed with a decision by a one 
member panel to deny waiver of collection of a debt of $20,000 or less, 
then the Notice of Disagreement should also be assigned to one panel 
member. Likewise, a Notice of Disagreement filed with a decision by a 
two or three member panel to deny waiver of collection of a debt of more 
than $20,000 should also be assigned to a Committee panel of two members 
(three if these two members cannot agree). However, a Chairperson must 
assign the Notice of Disagreement to a different one, two, or three 
member panel than the panel that made the original Committee decision 
that is now the subject of the Notice of Disagreement.

(Authority: 5 U.S.C. 5584, 31 U.S.C. 3711, 38 U.S.C. 3720(a), 5302)

[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54 
FR 40871, Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct. 
13, 1995; 69 FR 62201, Oct. 25, 2004]



Sec. 1.956  Jurisdiction.

    (a) The regional office Committees are authorized, except as to 
determinations under Sec. 2.6(e)(4)(i) of this chapter where 
applicable, to consider and determine as limited in Sec. Sec. 1.955 et 
seq., settlement, compromise and/or waiver concerning the following 
debts and overpayments:
    (1) Arising out of operations of the Veterans Benefits 
Administration:
    (i) Overpayment or erroneous payments of pension, compensation, 
dependency and indemnity compensation,

[[Page 121]]

burial allowances, plot allowance, subsistence allowance, education 
(includes debts from work study and education loan defaults as well as 
from other overpayments of educational assistance benefits) or insurance 
benefits, clothing allowance and automobile or other conveyance and 
adaptive equipment allowances.
    (ii) Debts arising out of the loan program under 38 U.S.C. ch. 37 
after liquidation of security, if any.
    (iii) Such other debts as may be specifically designated by the 
Under Secretary for Benefits.
    (2) Arising out of operations of the Veterans Health Services and 
Research Administration:
    (i) Debts resulting from services furnished in error (Sec. 
17.101(a) of this chapter).
    (ii) Debts resulting from services furnished in a medical emergency 
(Sec. 17.101(b) of this chapter).
    (iii) Other claims arising in connection with transactions of the 
Veterans Health Administration (Sec. 17.103(c) of this chapter).
    (iv) Fiscal officers at VA medical facilities are authorized to 
waive veterans' debts arising from medical care copayments (Sec. 
17.105(c) of this chapter).
    (3) Claims for erroneous payments of pay and allowances, and 
erroneous payments of travel, transportation, and relocation expenses 
and allowances, made to or on behalf of employees (5 U.S.C. 5584).
    (b) The Under Secretary for Benefits may, at his or her discretion, 
assume original jurisdiction and establish an ad hoc Board to determine 
a particular issue arising within this section.

(Authority: 38 U.S.C. 501)

[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979; 
60 FR 53276, Oct. 13, 1995; 69 FR 62201, Oct. 25, 2004]



Sec. 1.957  Committee authority.

    (a) Regional office committee. On matters covered in Sec. 1.956, 
the regional office Committee is authorized to determine the following 
issues:
    (1) Waivers. A decision may be rendered to grant or deny waiver of 
collection of a debt in the following debt categories:
    (i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may 
consider waiver of the indebtedness of a veteran or spouse resulting 
from: (A) The payment of a claim under the guaranty or insurance of 
loans, (B) the liquidation of direct loans, (C) the liquidation of loans 
acquired under Sec. 36.4318, and (D) the liquidation of vendee 
accounts. The phrase veteran or spouse includes a veteran-borrower, 
veteran-transferee, a veteran-purchaser on a vendee account, a former 
spouse or surviving spouse of a veteran.
    (ii) Other than loan guaranty program. (38 U.S.C. 5302(a))
    (iii) Services erroneously furnished (Sec. 17.101(a)).
    (2) Compromises--(i) Loan program debts (38 U.S.C. 3720(a)). Accept 
or reject a compromise offer irrespective of the amount of the debt 
(loan program matters under 38 U.S.C. chapter 37 are unlimited as to 
amount).
    (ii) Other than loan program debts (31 U.S.C. 3711).
    (A) Accept or reject a compromise offer on a debt which exceeds 
$1,000 but which is not over $100,000 (both amounts exclusive of 
interest and other late payment charges).
    (B) Accept or reject a compromise offer on a debt of a $1,000 or 
less, exclusive of interest and other late payment charges, which is not 
disposed of by the Chief, Fiscal activity, pursuant to paragraph (b) of 
this section.
    (C) Reject a compromise offer on a debt which exceeds $100,000, 
exclusive of interest and other late payment charges.
    (D) Recommend approval of a compromise offer on a debt which exceeds 
$100,000, exclusive of interest and other late payment charges. The 
authority to accept a compromise offer on such a debt rests solely 
within the jurisdiction of the Department of Justice. The Committee 
should evaluate a compromise offer on a debt in excess of $100,000, 
using the factors set forth in Sec. Sec. 1.930 through 1.938. If the 
Committee believes that the compromise offer is advantageous to the 
government, then the Committee members shall so state this conclusion in 
a written memorandum of recommendation of approval to the Chairperson. 
This recommendation, along with a Claims Collection Litigation Report 
(CCLR) completed in accordance with Sec. 1.951, will be referred

[[Page 122]]

to VA Central Office, Office of Financial Management (047G7), for 
submission to the Department of Justice for final approval.


(Authority: 31 U.S.C. 3711)

    (b) Chief of Fiscal activity. The Chief of the Fiscal activity at 
both VBA and VHA offices has the authority, as to debts within his/her 
jurisdiction, to:
    (1) On other than loan program debts under 38 U.S.C. chapter 37, 
accept compromise offers of 50% or more of a total debt not in excess of 
$1,000, exclusive of interest and other late payment charges, regardless 
of whether or not there has been a prior denial of waiver.
    (2) On other than loan program debts under 38 U.S.C. chapter 37, 
reject any offer of compromise of a total debt not in excess of $1,000, 
exclusive of interest and other late payment charges, regardless of 
whether or not there has been a prior denial of waiver.
    (3) On other than loan guaranty program debts under 38 U.S.C. 
chapter 37, reject any offer of compromise of a total debt not in excess 
of $1,000, exclusive of interest, regardless of whether or not there has 
been a prior denial of waiver.

(Authority: 31 U.S.C. 3711 and 38 U.S.C. 3720(a))

[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985; 
52 FR 42112, Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct. 
13, 1995; 69 FR 62201, Oct. 25, 2004]



Sec. 1.958  Finality of decisions.

    A decision by the regional office Committee, operating within the 
scope of its authority, denying waiver of all or part of a debt arising 
out of participation in a VA benefit or home loan program, is subject to 
appeal in accordance with 38 CFR parts 19 and 20. A denial of waiver of 
an erroneous payment of pay and allowances is subject to appeal in 
accordance with Sec. 1.963a(a). There is no right of appeal from a 
decision rejecting a compromise offer.


(Authority: 38 U.S.C. 501 and 7104).

[69 FR 62201, Oct. 25, 2004]



Sec. 1.959  Records and certificates.

    The Chairperson of the Committee shall execute or certify any 
documents pertaining to its proceedings. He/she will be responsible for 
maintaining needed records of the transactions of the Committee and 
preparation of any administrative or other reports which may be 
required.

(Authority: 38 U.S.C. 501)

[44 FR 59906, Oct. 17, 1979]



Sec. 1.960  Legal and technical assistance.

    Legal questions involving a determination under Sec. 2.6(e)(4) of 
this chapter will be referred to the Regional Counsel for action in 
accordance with delegations of the General Counsel, unless there is an 
existence a General Counsel's opinion or an approved Regional Counsel's 
opinion dispositive of the controlling legal principle. As to matters 
not controlled by Sec. 2.6(e)(4) of this chapter, the Chairperson of 
the regional office Committee or at his/her instance, a member, may seek 
and obtain advice from the Regional Counsel on legal matters within his/
her jurisdiction and from other division chiefs in their areas of 
responsibility, on any matter properly before the Committee. Guidance 
may also be requested from the Central Office staff.

(Authority: 38 U.S.C. 501)

[44 FR 59906, Oct. 17, 1979]



Sec. 1.961  Releases.

    On matters within its jurisdiction, the Committee may authorize the 
release of any right, title, claim, lien or demand, however acquired, 
against any person obligated on a loan guaranteed, insured, or made by 
the Department of Veterans Affairs under the provisions of 38 U.S.C. ch. 
37, or on an acquired loan, or on a vendee account.

[39 FR 26400, July 19, 1974]



Sec. 1.962  Waiver of overpayments.

    There shall be no collection of an overpayment, or any interest 
thereon, which results from participation in a benefit program 
administered under any law by VA when it is determined by a regional 
office Committee on Waivers and Compromises that collection would be 
against equity and good conscience. For the purpose of this regulation, 
the term overpayment refers only to those benefit payments made

[[Page 123]]

to a designated living payee or beneficiary in excess of the amount due 
or to which such payee or beneficiary is entitled. The death of an 
indebted payee, either prior to a request for waiver of the indebtedness 
or during Committee consideration of the waiver request, shall not 
preclude waiver consideration. There shall be no waiver consideration of 
an indebtedness that results from the receipt of a benefit payment by a 
non-payee who has no claim or entitlement to such payment.
    (a) Waiver consideration is applicable in an indebtedness resulting 
from work study and education loan default, as well as indebtedness of a 
veteran-borrower, veteran transferee, or indebted spouse of either, 
arising out of participation in the loan program administered under 38 
U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness 
which is the result of VA hospitalization, domiciliary care, or 
treatment of a veteran, either furnished in error or on the basis of 
tentative eligibility.
    (b) In any case where there is an indication of fraud or 
misrepresentation of a material fact on the part of the debtor or any 
other party having an interest in the claim, action on a request for 
waiver will be deferred pending appropriate disposition of the matter. 
However, the existence of a prima facie case of fraud shall, 
nevertheless, entitle a claimant to an opportunity to make a rebuttal 
with countervailing evidence; similiarly, the misrepresentation must be 
more than non-willful or mere inadvertence. The Committee may act on a 
request for waiver concerning such debts, after the Inspector General or 
the Regional Counsel has determined that prosecution is not indicated, 
or the Department of Justice has notified VA that the alleged fraud or 
misrepresentation does not warrant action by that department, or the 
Department of Justice or the appropriate United States Attorney, 
specifically authorized action on the request for waiver.

(Authority: 38 U.S.C. 501)

[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 
50 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987]



Sec. 1.963  Waiver; other than loan guaranty.

    (a) General. Recovery of overpayments of any benefits made under 
laws administered by the VA shall be waived if there is no indication of 
fraud, misrepresentation, or bad faith on the part of the person or 
persons having an interest in obtaining the waiver and recovery of the 
indebtedness from the payee who received such benefits would be against 
equity and good conscience.
    (b) Application. A request for waiver of an indebtedness under this 
section shall only be considered:
    (1) If made within 2 years following the date of a notice of 
indebtedness issued on or before March 31, 1983, by the Department of 
Veterans Affairs to the debtor, or
    (2) Except as otherwise provided herein, if made within 180 days 
following the date of a notice of indebtedness issued on or after April 
1, 1983, by the Department of Veterans Affairs to the debtor. The 180 
day period may be extended if the individual requesting waiver 
demonstrated to the Chairperson of the Committee on Waivers and 
Compromises that, as a result of an error by either the Department of 
Veterans Affairs or the postal authorities, or due to other 
circumstances beyond the debtor's control, there was a delay in such 
individual's receipt of the notification of indebtedness beyond the time 
customarily required for mailing (including forwarding). If the 
requester does substantiate that there was such a delay in the receipt 
of the notice of indebtedness, the Chairperson shall direct that the 180 
day period be computed from the date of the requester's actual receipt 
of the notice of indebtedness.

(Authority: 38 U.S.C. 5302 (a) & (c))

[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 
48 FR 27400, June 15, 1983; 50 FR 38803, Sept. 25, 1985; 58 FR 3840, 
Jan. 12, 1993]



Sec. 1.963a  Waiver; erroneous payments of pay and allowances.

    (a) The provisions applicable to VA (including refunds) concerning 
waiver actions relating to erroneous payments to VA employees of pay and 
allowances, and travel, transportation, and

[[Page 124]]

relocation expenses and allowances, are set forth in 5 U.S.C. 5584. The 
members of Committees on Waivers and Compromises assigned to waiver 
actions under Sec. 1.955 of this part are delegated all authority 
granted the Secretary under 5 U.S.C. 5584 to deny waiver or to grant 
waiver in whole or in part of any debt regardless of the amount of the 
indebtedness. Committee members also have exclusive authority to 
consider and render a decision on the appeal of a waiver denial or the 
granting of a partial waiver. However, the Chairperson of the Committee 
must assign the appeal to a different Committee member or members than 
the member or members who made the original decision that is now the 
subject of the appeal. The following are the only provisions of 
Sec. Sec. 1.955 through 1.970 of this part applicable to waiver actions 
concerning erroneous payments of pay and allowances, and travel, 
transportation, and relocation expenses and allowances, under 5 U.S.C. 
5584: Sec. Sec. 1.955(a) through (e)(2), 1.956(a)(introductory text) 
and (a)(3), 1.959, 1.960, 1.963a, and 1.967(c).
    (b) Waiver may be granted under this section and 5 U.S.C. 5584 when 
collection would be against equity and good conscience and not in the 
best interest of the United States. Generally, these criteria will be 
met by a finding that the erroneous payment occurred through 
administrative error and that there is no indication of fraud, 
misrepresentation, fault, or lack of good faith on the part of the 
employee or other person having an interest in obtaining a waiver of the 
claim, and waiver would not otherwise be inequitable. Generally, waiver 
is precluded when an employee receives a significant unexplained 
increase in pay or allowances, or otherwise knows, or reasonably should 
know, that an erroneous payment has occurred, and fails to make 
inquiries or bring the matter to the attention of the appropriate 
officials. Waiver under this standard will depend upon the facts 
existing in each case.
    (c) An application for waiver must be received within 3 years 
immediately following the date on which the erroneous payment was 
discovered.


(Authority: 5 U.S.C. 5584; 38 U.S.C. 501).

[69 FR 62202, Oct. 25, 2004]



Sec. 1.964  Waiver; loan guaranty.

    (a) General. Any indebtedness of a veteran or the indebtedness of 
the spouse shall be waived only when the following factors are 
determined to exist:
    (1) Following default there was a loss of the property which 
constituted security for the loan guaranteed, insured or made under 
chapter 37 of title 38 United States Code;
    (2) There is no indication of fraud, misrepresentation, or bad faith 
on the part of the person or persons having an interest in obtaining the 
waiver; and
    (3) Collection of such indebtedness would be against equity and good 
conscience.
    (b) Spouse. The waiver of a veteran's indebtedness shall inure to 
the spouse of such veteran insofar as concerns said indebtedness, unless 
the obligation of the spouse is specifically excepted. However, the 
waiver of the indebtedness of the veteran's spouse shall not inure to 
the benefit of the veteran unless specifically provided for in the 
waiver decision.
    (c) Surviving spouse or former spouse. A surviving spouse of a 
veteran or the former spouse of a veteran may be granted a waiver of the 
indebtedness provided the requirements of paragraph (a) of this section 
are met.
    (d) Preservation of Government rights. In cases in which it is 
determined that waiver may be granted, the action will take such form 
(covenant not to sue, or otherwise) as will preserve the rights of the 
Government against obligors other than the veteran or the spouse.
    (e) Application. A request for waiver of an indebtedness under this 
section shall be made within one year after the date on which the debtor 
receives, by Certified Mail-Return Receipt Requested, written notice 
from VA of the indebtedness. If written notice of indebtedness is sent 
by means other than Certified Mail-Return Receipt Requested, then there 
is no time limit for

[[Page 125]]

filing a request for waiver of indebtedness under this section.


(Authority: 38 U.S.C. 5302(b))

    (f) Exclusion. Except as otherwise provided in this section, the 
indebtedness of a nonveteran obligor under the loan program is excluded 
from waiver.

(Authority:
    38 U.S.C. 5302 (b) and (c))

[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 
57 FR 33875, July 31, 1992; 58 FR 3840, Jan. 12, 1993]



Sec. 1.965  Application of standard.

    (a) The standard ``Equity and Good Conscience'', will be applied 
when the facts and circumstances in a particular case indicate a need 
for reasonableness and moderation in the exercise of the Government's 
rights. The decision reached should not be unduly favorable or adverse 
to either side. The phrase equity and good conscience means arriving at 
a fair decision between the obligor and the Government. In making this 
determination, consideration will be given to the following elements, 
which are not intended to be all inclusive:
    (1) Fault of debtor. Where actions of the debtor contribute to 
creation of the debt.
    (2) Balancing of faults. Weighing fault of debtor against Department 
of Veterans Affairs fault.
    (3) Undue hardship. Whether collection would deprive debtor or 
family of basic necessities.
    (4) Defeat the purpose. Whether withholding of benefits or recovery 
would nullify the objective for which benefits were intended.
    (5) Unjust enrichment. Failure to make restitution would result in 
unfair gain to the debtor.
    (6) Changing position to one's detriment. Reliance on Department of 
Veterans Affairs benefits results in relinquishment of a valuable right 
or incurrence of a legal obligation.
    (b) In applying this single standard for all areas of indebtedness, 
the following elements will be considered, any indication of which, if 
found, will preclude the granting of waiver:
    (1) Fraud or misrepresentation of a material fact (see Sec. 
1.962(b)).
    (2) Bad faith. This term generally describes unfair or deceptive 
dealing by one who seeks to gain thereby at another's expense. Thus, a 
debtor's conduct in connection with a debt arising from participation in 
a VA benefits/services program exhibits bad faith if such conduct, 
although not undertaken with actual fraudulent intent, is undertaken 
with intent to seek an unfair advantage, with knowledge of the likely 
consequences, and results in a loss to the government.

(Authority: 38 U.S.C. 5302(c))

[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58 
FR 7296, Feb. 5, 1993; 69 FR 62202, Oct. 25, 2004]



Sec. 1.966  Scope of waiver decisions.

    (a) Decisions will be based on the evidence of record. A hearing may 
be held at the request of the claimant or his/her representative. No 
expenses incurred by a claimant, his representative, or any witness 
incident to a hearing will be paid by the Department of Veterans 
Affairs.
    (b) A regional office Committee may:
    (1) Waive recovery as to certain persons and decline to waive as to 
other persons whose claims are based on the same veteran's service.
    (2) Waive or decline to waive recovery from specific benefits or 
sources, except that:
    (i) There shall be no waiver of recovery out of insurance of an 
indebtedness secured thereby; i.e., an insurance overpayment to an 
insured. However, recovery may be waived of any or all of such 
indebtedness out of benefits other than insurance then or thereafter 
payable to the insured.

(Authority: 38 U.S.C. 501, 5302).

[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 
48 FR 1056, Jan. 10, 1983; 69 FR 62202, Oct. 25, 2004]



Sec. 1.967  Refunds.

    (a) Except as provided in paragraph (c) of this section, any portion 
of an indebtedness resulting from participation in benefits programs 
administered by the Department of Veterans Affairs which has been 
recovered by the U.S. Government from the debtor may be considered for 
waiver, provided the debtor requests waiver in accordance

[[Page 126]]

with the time limits of Sec. 1.963(b). If collection of an indebtness 
is waived as to the debtor, such portions of the indebtedness previously 
collected by the Department of Veterans Affairs will be refunded. In the 
event that waiver of collection is granted for either an education, loan 
guaranty, or direct loan debt, there will be a reduction in the debtor's 
entitlement to future benefits in the program in which the debt 
originated.
    (b) The Department of Veterans Affairs may not waive collection of 
the indebtedness of an educational institution found liable under 38 
U.S.C. 3685. Waiver of collection of educational benefit overpayments 
from all or a portion of the eligible persons attending an educational 
institution which has been found liable under 38 U.S.C. 3685 shall not 
relieve the institution of its assessed liability. (See 38 CFR 
21.4009(f)).
    (c) The regulatory provisions concerning refunds of indebtedness 
collected by the Department of Veterans Affairs arising from erroneous 
payments of pay and allowances and travel, transportation, and 
relocation expenses and allowances are set forth in 4 CFR Parts 91 and 
92.
    (d) Refund of the entire amount collected may not be made when only 
a part of the debt is waived or when collection of the balance of a loan 
guaranty indebtedness by the Department of Veterans Affairs from 
obligors, other than a husband or wife of the person requesting waiver, 
will be adversely affected. Only where the amount collected exceeds the 
balance of the indebtedness still in existence will a refund be made in 
the amount of the difference between the two. Otherwise, refunds will be 
made in accordance with paragraph (a) of this section.

(Authority: 38 U.S.C. 3685, 5302; 5 U.S.C. 5584)

[48 FR 1056, Jan. 10, 1983, as amended at 60 FR 53276, Oct. 13, 1995]



Sec. 1.968  [Reserved]



Sec. 1.969  Revision of waiver decisions.

    (a) Jurisdiction. A decision involving waiver may be reversed or 
modified on the basis of new and material evidence, fraud, a change in 
law or interpretation of law specifically stated in a Department of 
Veterans Affairs issue, or clear and unmistakable error shown by the 
evidence in file at the time the prior decision was rendered by the same 
or any other regional office Committee.
    (b) Finality of decisions. Except as provided in paragraph (a) of 
this section, a decision involving waiver rendered by the Committee 
having jurisdiction is final, subject to the provisions of:
    (1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to 
finality of decisions;
    (2) Section 3.105 (a) and (b) of this chapter as to revision of 
decisions, except that the Central Office staff may postaudit or make an 
administrative review of any decision of a regional office Committee;
    (3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice 
of disagreement and the right of appeal;
    (4) Section 19.124 of this chapter as to the filing of 
administrative appeals and the time limits for filing such appeals.
    (c) Difference of opinion. Where reversal or amendment of a decision 
involving waiver is authorized under Sec. 3.105(b) of this chapter 
because of a difference of opinion, the effective date of waiver will be 
governed by the principle contained in Sec. 3.400(h) of this chapter.

(Authority: 38 U.S.C. 501)

[44 FR 59907, Oct. 17, 1979]



Sec. 1.970  Standards for compromise.

    Decisions of the Committee respecting acceptance or rejection of a 
compromise offer shall be in conformity with the standards in Sec. Sec. 
1.930 through 1.936. In loan guaranty cases the offer of a veteran or 
other obligor to effect a compromise must relate to an indebtedness 
established after the liquidation of the security, if any, and shall be 
reviewed by the Committee. An offer to effect a compromise may be 
accepted if it is deemed advantageous to the Government. A decision on 
an offer of compromise may be revised or modified on the basis of any 
information which would warrant a change in the original decision.

(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).

[44 FR 59907, Oct. 17, 1979, as amended at 69 FR 62202, Oct. 25, 2004]

[[Page 127]]

                        Salary Offset Provisions

    Source: 52 FR 1905, Jan. 16, 1987, unless otherwise noted.



Sec. 1.980  Scope.

    (a) In accordance with 5 CFR part 550, subpart K, the provisions set 
forth in Sec. Sec. 1.980 through 1.995 implement VA's authority for the 
use of salary offset to satisfy certain debts owed to VA.
    (b) These regulations apply to offsets from the salaries of current 
employees of VA, or any other agency, who owe debts to VA. Offsets by VA 
from salaries of current VA employees who owe debts to other agencies 
shall be processed in accordance with procedures set forth in 5 CFR part 
550, subpart K.
    (c) These regulations do not apply to debts or claims arising under 
the Internal Revenue Code of 1954, as amended, the Social Security Act, 
the tariff laws of the United States, or to any case where collection of 
a debt by salary offset is explicitly provided for (e.g., travel 
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 
4108) or prohibited by another statute.
    (d) These regulations do not preclude an employee from requesting 
waiver of an overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any 
other similar provision of law, or in any way questioning the amount or 
validity of a debt not involving benefits under the laws administered by 
VA by submitting a subsequent claim to the General Accounting Office in 
accordance with procedures prescribed by that office.
    (e) These regulations do not apply to any adjustment to pay arising 
out of an employee's election of coverage or a change in coverage under 
a Federal benefits program requiring periodic deductions from pay if the 
amount to be recovered was accumulated over four pay periods or less.
    (f) These regulations do not apply to a routine intra-agency 
adjustment of pay that is made to correct an overpayment of pay 
attributable to clerical or administrative errors or delays in 
processing pay documents, if the overpayment occurred within the four 
pay periods preceding the adjustment and, at the time of such 
adjustment, or as soon thereafter as practicable, the individual is 
provided written notice of the nature and amount of the adjustment and a 
point of contact for contesting such adjustment.
    (g) These regulations do not apply to any adjustment to collect a 
debt amounting to $50 or less, if at the time of such adjustment, or as 
soon thereafter as practicable, the individual is provided with written 
notice of the nature and amount of the adjustment and a point of contact 
for contesting such adjustment.
    (h) These regulations do not preclude the compromise, suspension, or 
termination of collection action under the Federal Claims Collection 
Standards (FCCS) (31 CFR parts 900-904) and VA regulations 38 CFR 1.930 
through 1.944.
    (i) The procedures and requirements of these regulations do not 
apply to salary offset used to recoup a Federal employee's debt where a 
judgment has been obtained against the employee for the debt.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54 
FR 34980, Aug. 23, 1989; 69 FR 62202, Oct. 25, 2004]



Sec. 1.981  Definitions.

    (a) Agency means:
    (1) An executive agency as defined in 5 U.S.C. 105, including the 
U.S. Postal Service, and the U.S. Postal Rate Commission, and
    (2) A military department as defined in 5 U.S.C. 102.
    (3) An agency or court of the judicial branch, including a court as 
defined in 28 U.S.C. 610, the District Court for the Northern Mariana 
Islands, and the Judicial Panel on Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    (b) Debt means an amount owed to the United States from sources 
which include loans insured or guaranteed by the United States and all 
other amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, penalties, 
damages, interest,

[[Page 128]]

fines and forfeitures (except those arising under the Uniform Code of 
Military Justice), and all other similar sources.
    (c) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. Excluded 
from this definition are deductions described in 5 CFR 581.105(b) 
through (f).
    (d) Employee means a current employee of VA or other Federal agency 
including a current member of the Armed Forces or a Reserve of the Armed 
Forces (Reserves).
    (e) Salary offset means an attempt to collect a debt under 5 U.S.C. 
5514 by deduction(s) at one or more officially estabilished pay 
intervals from the current pay account of an employee without his or her 
consent.
    (f) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee to VA or another Federal agency 
as permitted or required by 5 U.S.C. 5584 or 38 U.S.C. 5302, or other 
similar statutes.
    (g) Extreme hardship to an employee means an employee's inability to 
provide himself or herself and his or her dependents with the 
necessities of life such as food, housing, clothing, transportation, and 
medical care.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]



Sec. 1.982  Salary offsets of debts involving benefits under the laws 
administered by VA.

    (a) VA will not collect a debt involving benefits under the laws 
administered by VA by salary offset unless the Secretary or appropriate 
designee first provides the employee with a minimum of 30 calendar days 
written notice.
    (b) If the employee has not previously appealed the amount or 
existence of the debt under 38 CFR parts 19 and 20 and the time for 
pursuing such an appeal has not expired (Sec. 20.302), the Secretary or 
appropriate designee will provide the employee with written notice of 
the debt. The written notice will state that the employee may appeal the 
amount and existence of the debt in accordance with the procedures set 
forth in 38 CFR parts 19 and 20 and will contain the determination and 
information required by Sec. 1.983(b)(1) through (5), (7), (9), (10), 
and (12) though (14). The notice will also state that the employee may 
request a hearing on the offset schedule under the procedures set forth 
in Sec. 1.984 and such a request will stay the commencement of salary 
offset.
    (c) If the employee previously appealed the amount or existence of 
the debt and the Board of Veterans Appeals decided the appeal on the 
merits or if the employee failed to pursue an appeal within the time 
provided by regulations, the Secretary or designee shall provide the 
employee with written notice prior to collecting the debt by salary 
offset. The notice will state:
    (1) The determinations and information required by Sec. 
1.983(b)(1)-(5), (7), and (12)-(14);
    (2) That the employee's appeal of the existence or amount of the 
debt was determined on the merits or that the employee failed to pursue 
an appeal within the time provided, and VA's decision is final except as 
otherwise provided in agency regulations;
    (3) That the employee may request a waiver of the debt pursuant to 
38 CFR 1.911(c)(2) subject to the time limits of 38 U.S.C. 5302.
    (4) That the employee may request an oral or paper hearing on the 
offset schedule and receive a decision within 60 days of such request 
under the procedures and time limit set forth in Sec. 1.984 and that 
such a request will stay the commencement of salary offset.
    (d) If the employee has appealed the existence or amount of the debt 
and the Board of Veterans Appeals has not decided the appeal on the 
merits, collection of the debt by salary offset will be suspended until 
the appeal is decided or the employee ceases to pursue the appeal.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004]

[[Page 129]]



Sec. 1.983  Notice requirements before salary offsets of debts not 
involving benefits under the laws administered by VA.

    (a) For a debt not involving benefits under the laws administered by 
VA, the Secretary or designee will review the records relating to the 
debt to assure that it is owed prior to providing the employee with a 
notice of the debt.
    (b) Except as provided in Sec. 1.980(e), salary offset of debts not 
involving benefits under the laws administered by VA will not be made 
unless the Secretary or designee first provides the employee with a 
minimum of 30 calendar days written notice. This notice will state:
    (1) The Secretary or designee's determination that a debt is owed;
    (2) The amount of the debt owed and the facts giving rise to the 
debt;
    (3) The Secretary or designee's intention to collect the debt by 
means of deduction from the employee's current disposable pay account 
until the debt and all accumulated interest and associated costs are 
paid in full;
    (4) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (5) An explanation of VA's requirements concerning interest, 
administrative costs, and penalties;
    (6) The employee's right to inspect and copy VA records relating to 
the debt or, if the employee or his or her representative cannot 
personally inspect the records, to request and receive a copy of such 
records;
    (7) The employee's right to enter into a written agreement with the 
Secretary or designee for a repayment schedule differing from that 
proposed by the Secretary or designee, so long as the terms of the 
repayment schedule proposed by the employee are agreeable to the 
Secretary or designee;
    (8) The VA employee's right to request an oral or paper hearing on 
the Secretary or appropriate designee's determination of the existence 
or amount of the debt, or the percentage of disposable pay to be 
deducted each pay period, so long as a request is filed by the employee 
as prescribed by the Secretary. A VA Board of Contract Appeals 
Administrative Judge or Hearing Examiner shall conduct such a hearing 
for any VA employee. A VA Board of Contract Appeals Administrative Judge 
or Hearing Examiner, or any other VA hearing official, may also conduct 
an oral or paper hearing at the request of a non-VA employee on the 
determination by an appropriately designated official of the employing 
agency of the existence or amount of the debt, or the percentage of 
disposable pay to be deducted each pay period, so long as a hearing 
request is filed by the non-VA employee as prescribed by the employing 
agency.
    (9) The method and time period for requesting a hearing;
    (10) That the timely filing of a request for a hearing (oral or 
paper) will stay the commencement of salary offset;
    (11) That a final decision after the hearing will be issued at the 
earliest practical date, but no later than 60 calendar days after the 
filing of the request for the hearing, unless the employee requests and 
the hearing officer grants a delay in the proceedings;
    (12) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR 
part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or 
any other applicable statutory authority; or
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
any other applicable statutory authority.
    (13) The employee's right, if applicable, to request waiver under 5 
U.S.C. 5584 and 38 CFR 1.963a and any other rights and remedies 
available to the employee under statutes or regulations governing the 
program for which the collection is being made; and
    (14) Unless there are applicable contractual or statutory provisions 
to the contrary, that amounts paid on or deducted for the debt which are 
later waived or found not owed to the United States will be promptly 
refunded to the employee.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004]

[[Page 130]]



Sec. 1.984  Request for a hearing.

    (a) Except as provided in paragraph (b) of this section and in Sec. 
1.982, an employee wishing a hearing on the existence or amount of the 
debt or on the proposed offset schedule must send such a request to the 
office which sent the notice of the debt. The employee must also specify 
whether an oral or paper hearing is requested. If an oral hearing is 
requested, the request should explain why the matter cannot be resolved 
by review of the documentary evidence. The request must be received by 
the office which sent the notice of the debt not later than 30 calendar 
days from the date of the notice.
    (b) If the employee files a request for a hearing after the 
expiration of the 30 day period provided for in paragraph (a) of this 
section, VA may accept the request if the employee shows that the delay 
was because of circumstances beyond his or her control or because of 
failure to receive the written notice of the filing deadline (unless the 
employee has actual notice of the filing deadline).

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]



Sec. 1.985  Form, notice of, and conduct of hearing.

    (a) After an employee requests a hearing, the hearing official or 
administrative law judge shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time, and location for the hearing. If the hearing 
will be paper, the employee shall be notified that he or she should 
submit his or her position and arguments in writing to the hearing 
official or administrative law judge by a specified date after which the 
record shall be closed. This date shall give the employee reasonable 
time to submit this information.
    (b) An employee who requests an oral hearing shall be provided an 
oral hearing if the hearing official or administrative law judge 
determines that the matter cannot be resolved by review of documentary 
evidence, for example, when an issue of credibility or veracity is 
involved. If a determination is made to provide an oral hearing, the 
hearing official or administrative law judge may offer the employee the 
opportunity for a hearing by telephone conference call. If this offer is 
rejected or if the hearing official or administrative law judge declines 
to offer a telephone conference call hearing, the employee shall be 
provided an oral hearing permitting the personal appearance of the 
employee, his or her personal representative, and witnesses. A record or 
transcript of every oral hearing shall be made. Witnesses shall testify 
under oath or affirmation. VA shall not be responsible for the payment 
of any expenses incident to attendance at the hearing which are incurred 
by either the employee, his or her representative or Counsel, or 
witnesses.
    (c) In all other cases where an employee requests a hearing, a paper 
hearing shall be provided. A paper hearing shall consist of a review of 
the written evidence of record by the administrative law judge or 
hearing official.
    (d) In any hearing under this section, the administrative law judge 
or hearing official may exclude from consideration evidence or testimony 
which is irrelevant, immaterial, or unduly repetitious.

(Authority: 5 U.S.C. 5514)



Sec. 1.986  Result if employee fails to meet deadlines.

    An employee waives the right to a hearing, and will have his or her 
disposable pay offset in accordance with the offset schedule, if the 
employee:
    (a) Fails to file a request for a hearing as prescribed in Sec. 
1.982, Sec. 1.984, or Sec. Sec. 19.1 through 19.200, whichever is 
applicable, unless such failure is excused as provided in Sec. 
1.984(b); or
    (b) Fails to appear at an oral hearing of which he or she had been 
notified unless the administrative law judge or hearing official 
determines that failure to appear was due to circumstances beyond the 
employee's control.

(Authority: 5 U.S.C. 5514)

[[Page 131]]



Sec. 1.987  Review by the hearing official or administrative law judge.

    (a) The hearing official or administrative law judge shall uphold 
VA's determination of the existence and amount of the debt unless 
determined to be erroneous by a preponderance of the evidence.
    (b) The hearing official or administrative law judge shall uphold 
VA's offset schedule unless the schedule would result in extreme 
hardship to the employee.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]



Sec. 1.988  Written decision following a hearing requested under 
Sec. 1.984.

    (a) The hearing official or administrative law judge must issue a 
written decision not later than 60 days after the employee files a 
request for the hearing.
    (b) Written decisions provided after a hearing requested under Sec. 
1.984 will include:
    (1) A statement of the facts presented to support the nature and 
origin of the alleged debt;
    (2) The hearing official or administrative law judge's analysis, 
findings and conclusions concerning as applicable:
    (i) The employee's or VA's grounds;
    (ii) The amount and validity of the alleged debt; and
    (iii) The repayment schedule.
    (c) The decision in a case where a paper hearing was provided shall 
be based upon a review of the written record. The decision in a case 
where an oral hearing was provided shall be based upon the hearing and 
the written record.

(Authority: 5 U.S.C. 5514)



Sec. 1.989  Review of VA records related to the debt.

    (a) Notification by employee. An employee who intends to inspect or 
copy VA records related to the debt as permitted by a notice provided 
under Sec. 1.983 must send a letter to the office which sent the notice 
of the debt stating his or her intention. The letter must be received by 
that office within 30 calendar days of the date of the notice.
    (b) VA response. In response to timely notice submitted by the 
debtor as described in paragraph (a) of this section, VA will notify the 
employee of the location and time when the employee may inspect and copy 
records related to the debt.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]



Sec. 1.990  Written agreement to repay debt as alternative to salary 
offset.

    (a) Notification by employee. The employee may propose, in response 
to a notice under Sec. 1.983, a written agreement to repay the debt as 
an alternative to salary offset. Any employee who wishes to do this must 
submit a proposed written agreement to repay the debt which is received 
by the office which sent the notice of the debt within 30 calendar days 
of the date of the notice.
    (b) VA response. In response to timely notice by the debtor as 
described in paragraph (a) of this section, VA will notify the employee 
whether the employee's proposed written agreement for repayment is 
acceptable. It is within VA's discretion to accept a repayment agreement 
instead of proceeding by offset. In making this determination, VA will 
balance its interest in collecting the debt against the hardship to the 
employee. VA will accept a repayment agreement instead of offset only if 
the employee is able to establish that offset would result in extreme 
hardship.

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]



Sec. 1.991  Procedures for salary offset: when deductions may begin.

    (a) Deductions to liquidate an employee's debt will be by the method 
and in the amount stated in the notice to collect from the employee's 
current pay as modified by a written decision issued under Sec. 1.982 
or Sec. 1.988, or parts 19 and 20 or by written agreement between the 
employee and the VA under Sec. 1.990.

[[Page 132]]

    (b) If the employee filed a request for a hearing as provided by 
Sec. 1.984 before the expiration of the period provided for in that 
section, deductions will not begin until after the hearing official or 
administrative law judge has provided the employee with a hearing, and 
has rendered a final written decision.
    (c) If the employee failed to file a timely request for a hearing, 
deductions will begin on the date specified in the notice of intention 
to offset, unless a hearing is granted pursuant to Sec. 1.984(b).
    (d) If an employee retires, resigns, or his or her employment ends 
before collection of the amount of the indebtedness is completed, the 
remaining indebtedness will be collected according to procedures for 
administrative offset (see 5 CFR 831.1801 through 831.1808, 31 CFR 
901.3, and 38 CFR 1.912).

(Authority: 5 U.S.C. 5514)

[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]



Sec. 1.992  Procedures for salary offset.

    (a) Types of collection. A debt will be collected in a lump-sum or 
in installments. Collection will be in a lump-sum unless the employee is 
financially unable to pay in one lump-sum, or if the amount of the debt 
exceeds 15 percent of the employee's disposable pay. In these cases, 
deduction will be by installments.
    (b) Installment deductions. (1) A debt to be collected in 
installments will be deducted at officially established pay intervals 
from an employee's current pay account unless the employee and the 
Secretary agree to alternative arrangements for repayment. The 
alternative arrangement must be in writing and signed by both the 
employee and Secretary or designee.
    (2) Installment deductions will be made over a period not greater 
than the anticipated period of employment. The size and frequency of 
installment deductions will bear a reasonable relation to the size of 
the debt and the employee's ability to pay. However, the amount deducted 
for any period will not exceed 15 percent of the disposable pay from 
which the deduction is made, unless the employee has agreed in writing 
to the deduction of a greater amount. If possible, the installment 
payment will be sufficient in size and frequency to liquidate the debt 
in three years. Installment payments of less than $25 per pay period or 
$50 a month will be acceptable only in the most unusual circumstances.
    (c) Imposition of interest, penalties, and administrative costs. 
Interest, penalties, and administrative costs shall be charged in 
accordance with 31 CFR 901.9 and 38 CFR 1.915.


(Authority: 5 U.S.C. 5514; 38 U.S.C. 501).

[52 FR 1905, Jan. 16, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69 
FR 62203, Oct. 25, 2004]



Sec. 1.993  Non-waiver of rights.

    So long as there are not statutory or contractual provisions to the 
contrary, an employee's involuntary payment (of all or a portion of a 
debt) under these regulations will not be interpreted as a waiver of any 
rights that the employee may have under 5 U.S.C. 5514.

(Authority: 5 U.S.C. 5514)
    VA will refund promptly to the appropriate individual amounts offset 
under these regulations when:
    (a) A debt is waived or otherwise found not owed the United States 
(unless expressly prohibited by statute or regulation); or
    (b) VA is directed by an administrative or judicial order to refund 
amounts deducted from the employee's current pay.

(Authority: 5 U.S.C. 5514)



Sec. 1.995  Requesting recovery through centralized administrative offset.

    (a) Under 31 U.S.C. 3716, VA and other creditor agencies must notify 
Treasury of all debts over 180 days delinquent so that recovery of such 
debts may be made by centralized administrative offset. This includes 
those debts that VA and other agencies seek from the pay account of an 
employee of another Federal agency via salary offset. Treasury and other 
disbursing officials will match payments, including Federal salary 
payments, against these debts. Where a match occurs, and all the 
requirements for offset have been met, the payment will be offset to 
satisfy the debt in whole or part.

[[Page 133]]

    (b) Prior to submitting a debt to Treasury for the purpose of 
collection by offset, including salary offset, VA shall provide written 
certification to Treasury that:
    (1) The debt is past due and legally enforceable in the amount 
submitted to Treasury and that VA will ensure that any subsequent 
collections are credited to the debt and that Treasury shall be notified 
of such;
    (2) Except in the case of a judgment debt or as otherwise allowed by 
law, the debt is referred to Treasury for offset within 10 years after 
VA's right of action accrues;
    (3) VA has complied with the provisions of 31 U.S.C. 3716 and 38 CFR 
1.912 and 1.912a including, but not limited to, those provisions 
requiring that VA provide the debtor with applicable notices and 
opportunities for a review of the debt; and
    (4) VA has complied with the provisions of 5 U.S.C. 5514 (salary 
offset) and 38 CFR 1.980 through 1.994 including, but not limited to, 
those provisions requiring that VA provide the debtor with applicable 
notices and opportunities for a hearing.
    (c) Specific procedures for notifying Treasury of debts for purposes 
of collection by centralized administrative offset are contained in the 
31 CFR 285.7. VA and other creditor agencies may notify Treasury of 
debts that have been delinquent for 180 days or less, including debts 
that VA and other creditor agencies seek to recover from the pay of an 
employee via salary offset.


(Authority: 31 U.S.C. 3716; 38 U.S.C. 501).

[69 FR 62203, Oct. 25, 2004]



PART 2_DELEGATIONS OF AUTHORITY--Table of Contents




Sec.
2.1 General provisions.
2.2 Delegation of authority to employees to issue subpoenas, etc.
2.3 Delegation of authority to employees to take affidavits, to 
          administer oaths, etc.
2.4 Delegation of authority to order paid advertising for use in 
          recruitment.
2.5 Delegation of authority to certify copies of documents, records, or 
          papers in Department of Veterans Affairs files.
2.6 Secretary's delegations of authority to certain officials (38 U.S.C. 
          512).
2.7 Delegation of authority to provide relief on account of 
          administrative error.
2.8 Delegation of authority to authorize allowances for Department of 
          Veterans Affairs employees who are notaries public.

    Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 1729A, 
5711; 44 U.S.C. 3702, and as noted in specific sections.

    Editorial Note: Nomenclature changes to part 2 appear at 61 FR 7216, 
Feb. 27, 1996.



Sec. 2.1  General provisions.

    In addition to the delegations of authority in this part, numerous 
delegations of authority are set forth throughout this title.

(Authority: 38 U.S.C. 512)

[64 FR 47111, Aug. 30, 1999]



Sec. 2.2  Delegation of authority to employees to issue subpoenas, etc.

    (a) Authority to issue subpoenas. Employees occupying or acting in 
the positions designated in paragraph (b) of this section shall have the 
power to issue subpoenas for (by countersigning VA Form 2-4003) and 
compel the attendance of witnesses within a radius of 100 miles from the 
place of hearing and to require the production of books, papers, 
documents, and other evidence. Issuing officials shall use discretion 
when exercising this power.
    (b) Designated positions. The positions designated pursuant to 
paragraph (a) of this section are: General Counsel, Deputy General 
Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional Offices 
and Centers having insurance or regional office activities, Under 
Secretary for Health (for income matching programs), Director, Income 
Verification Match Center (for income matching programs), and the 
Associate Director for Operations, Income Verification Match Center (for 
income matching programs).
    (c) Means of service. Subpoenas issued pursuant to this section may 
be served by registered or certified mail, return receipt requested, 
addressed to the witness only. Personal service by any VA employee or 
other authorized person may be made where authorized in writing by the 
issuing official.
    (d) Fees and mileage; district courts of the United States. Any 
person required by such subpoena to attend as a witness shall be allowed 
and paid the same

[[Page 134]]

fees and mileage as are paid witnesses in the district courts of the 
United States. In case of disobedience to any such subpoena, the aid of 
any district court of the United States may be invoked in requiring 
attendance and testimony of witnesses and the production of documentary 
evidence, and such court within the jurisdiction in which the inquiry is 
carried on may, in the case of contumacy or refusal to obey a subpoena 
issued to any officer, agent, or employee of any corporation or to any 
other person, issue an order requiring such corporation or other person 
to appear or to give evidence touching the matter in question, and any 
failure to obey such order of the court may be punished by such court as 
a contempt thereof.

(Authority: 38 U.S.C.A. 501, 5711)

[60 FR 40757, Aug. 10, 1995. Redesignated at 64 FR 47111, Aug. 30, 1999]



Sec. 2.3  Delegation of authority to employees to take affidavits, to 
administer oaths, etc.

    (a) An employee to whom authority is delegated by the Secretary in 
accordance with 38 U.S.C. 5711, or to whom authority was delegated by 
the Secretary in accordance with title III, Pub. L. 844, 74th Congress, 
section 616, Pub. L. 801, 76th Congress, and section 1211, Pub. L. 85-
56, is by virtue of such delegated authority, until such authority is 
revoked or otherwise terminated, empowered to take affidavits, to 
administer oaths and affirmations, to aid claimants in the preparation 
and presentation of claims, and to make investigations, examine 
witnesses, and certify to the correctness of papers and documents upon 
any matter within the jurisdiction of the Department of Veterans 
Affairs. Such employee is not authorized to administer oaths in 
connection with the execution of affidavits relative to fiscal vouchers 
and is not authorized to take acknowledgments to policy loan agreements 
and applications for cash surrender value to United States Government 
life insurance and National Service life insurance.
    (b) Any such oath, affirmation, affidavit, or examination, when 
certified under the hand of any such employee by whom it was 
administered or taken and authenticated by the seal of the Department of 
Veterans Affairs, may be offered or used in any court of the United 
States and, without further proof of the identity or authority of such 
employee, shall have like force and effect as if administered or taken 
before a clerk of such court.
    (c) The delegated authority from the Secretary to employees to take 
affidavits, to administer oaths, etc., will be evidenced by VA Form 4505 
series.

[24 FR 10018, Dec. 11, 1959. Redesignated at 64 FR 47111, Aug. 30, 1999]



Sec. 2.4  Delegation of authority to order paid advertising for use in 
recruitment.

    Paid advertisements may be used in recruitment for VA competitive 
and excepted service positions. Authority to order such advertisements 
is hereby delegated to Administration Heads, Assistant Secretaries, 
Other Key Officials (the General Counsel; the Inspector General; the 
Chairman, Board of Veterans' Appeals; the Chairman, Board of Contract 
Appeals; and the Director, Office of Small and Disadvantaged Business 
Utilization), Deputy Assistant Secretaries, to the deputies of such 
officials, to the Deputy Assistant Secretary and Associate Deputy 
Assistant Secretary for Human Resources Management, and to field 
facility Directors.

(Authority: 5 U.S.C. 302(b)(2); 44 U.S.C. 3702)

[61 FR 20134, May 6, 1996]



Sec. 2.5  Delegation of authority to certify copies of documents, 
records, or papers in Department of Veterans Affairs files.

    (a) Persons occupying or acting for the following positions in the 
Office of the General Counsel are authorized to certify copies of public 
documents, records, or papers belonging to or in the files of the 
Department of Veterans Affairs for the purposes of 38 U.S.C. 302: 
General Counsel, Deputy General Counsel, Assistant General Counsel, 
Deputy Assistant General Counsel, and the Regional Counsel for Puerto 
Rico.
    (b) The person occupying or acting in the position of Chairman of 
the Department of Veterans Affairs Board of Contract Appeals is 
authorized to certify

[[Page 135]]

copies of decisions, orders, subpoenas, and other documents, records, or 
papers issued by, belonging to, or in the files of the Boards for the 
purposes of 38 U.S.C. 302.
    (c) The person occupying or acting in the position of Chairman, 
Board of Veterans Apeals, is authorized to certify copies of decisions, 
orders, subpoenas, and other documents, records, or papers issued by, 
belonging to, or in the files of the Board for the purposes of 38 U.S.C. 
302.

(Authority: 38 U.S.C. 501)

[46 FR 18978, Mar. 27, 1981, as amended at 49 FR 30692, Aug. 1, 1984; 60 
FR 48029, Sept. 18, 1995]



Sec. 2.6  Secretary's delegations of authority to certain officials 
(38 U.S.C. 512).

    Employees occupying or acting in the positions designated below are 
delegated authority as indicated:
    (a) Veterans Health Administration. The Under Secretary for Health 
is delegated authority:
    (1) To act on all matters assigned to the Veterans Health 
Administration by statute (38 U.S.C. Ch. 73) and by regulation, except 
such matters as require the personal attention or action of the 
Secretary.
    (2) To revise, exceed, delete, increase, or decrease fees contained 
in Department of Veterans Affairs Veterans Health Services and Research 
Administration Manual M-1, part I, appendix A (following agreement 
therefor as provided in the contract with the intermediary involved), in 
an approved State fee schedule, and to add additional fees when found to 
be necessary, provided such fees are not in excess of those customarily 
charged the general public, in the community concerned, for the same 
service.
    (3) To designate the Deputy Under Secretary for Health, or other 
physician of the Veterans Health Administration, and authority is hereby 
delegated such designee to perform the functions prescribed in paragraph 
(a)(2) of this section.
    (4) To revise, exceed, delete, increase or decrease dental fees 
established in Department of Veterans Affairs Veterans Health Services 
and Research Administration Manual M-4, chapter 6, and any amendments 
thereto, and to add additional fees when found to be necessary, 
provided: such fees are not in excess of those customarily charged the 
general public, in the community concerned, for the same service.
    (5) To designate the Assistant Chief Medical Director for Dentistry, 
and authority is hereby delegated such designee, to perform the 
functions prescribed in paragraph (a)(4) of this section.
    (6) To supervise programs for grants to the Republic of the 
Philippines and medical care for Commonwealth Army veterans and 
Philippine Scouts in Veterans Memorial Medical Center, Manila, pursuant 
to the provisions of 38 U.S.C. ch. 17, subch. IV.
    (7) To designate the Deputy Under Secretary for Health of the 
Veterans Health Administration and authority is hereby delegated such 
designee to designate a Department of Veterans Affairs full-time 
physician or nonmedical Director to serve as an ex officio member on 
advisory bodies to State Comprehensive Health Planning agencies and to 
individual Regional Medical Programs in those areas in which there is 
located one or more Department of Veterans Affairs hospitals or other 
health facilities, who shall serve on such advisory group as the 
representative of the Department of Veterans Affairs health facilities 
located in that area.
    (8) To authorize Directors of Department of Veterans Affairs 
property and facilities under the charge and control of the Department 
of Veterans Affairs to appoint police officers with the power to enforce 
Federal laws and Department of Veterans Affairs regulations, to 
investigate violations of those laws and to arrest for crimes committed 
on Department of Veterans Affairs property to the full extent provided 
by Department policies and procedures.


(Authority: 38 U.S.C. 501 and 512)

    (9) To develop and establish minimum safety and quality standards 
for adaptive equipment provided under chapter 39 of title 38, United 
States Code, or to appoint a designee to perform these functions.

[[Page 136]]

    (b) Veterans Benefits Administration--(1) General. The Under 
Secretary for Benefits is delegated authority to act on all matters 
assigned to the Veterans Benefits Administration except as provided in 
Sec. 1.771 of this chapter and to authorize supervisory or adjudicative 
personnel within his/her jurisdiction to perform such functions as may 
be assigned.
    (2) Philippines. The Director, Department of Veterans Affairs 
Regional Office, Manila, Philippines, is delegated authority to exercise 
such authorities as are delegated to directors of regional offices in 
the United States, which are appropriate to the administration in the 
Republic of the Philippines of the laws administered by the Department 
of Veterans Affairs.
    (c) Office of Management. (1) The Assistant Secretary for Management 
(Chief Financial Officer) is delegated authority to act on all matters 
assigned to his/her office, and to authorize supervisory personnel 
within his/her jurisdiction to perform such functions as may be 
assigned. Appropriate written notification will be furnished other 
Federal agencies concerning such authorizations.
    (2) The Assistant Secretary for Management (Chief Financial Officer) 
is delegated authority under 31 U.S.C. 1553(c)(1), to approve, in a 
fixed appropriation account to which the period of availability for 
obligation has expired, obligational increases related to contract 
changes when such transaction will cause cumulative obligational 
increase for contract changes during a fiscal year to exceed $4 million 
but not more than $25 million; for this responsibility the Assistant 
Secretary for Management (Chief Financial Officer) shall act as a member 
of the Office of the Secretary and shall report to and consult with the 
Secretary on these matters.
    (d) Assistant Secretary for Management (Chief Financial Officer); 
administration heads and staff office directors. The Assistant Secretary 
for Management (Chief Financial Officer) is delegated authority to take 
appropriate action (other than provided for in paragraphs (e)(3) and 
(e)(4) of this section) in connection with the collection of civil 
claims by VA for money or property, as authorized in Sec. 1.900, et 
seq. The Assistant Secretary for Management (Chief Financial Officer) 
may redelegate such authority as he/she deems appropriate to 
administration heads and staff office directors.


(Authority: 38 U.S.C. 501, 512).

    (e) General Counsel. (1) [Reserved]
    (2) Under the provisions of 38 U.S.C. 515(b), the General Counsel, 
Deputy General Counsel, Assistant General Counsel and Regional Counsel, 
or those authorized to act for them, are authorized to consider, 
ascertain, adjust, determine, and settle tort claims cognizable 
thereunder and to execute an appropriate voucher and other necessary 
instruments in connection with the final disposition of such claims.
    (3) Under the provisions of ``The Federal Medical Care Recovery 
Act,'' 42 U.S.C. 2651, et seq. (as implemented by part 43, title 28, 
Code of Federal Regulations), authority is delegated to the General 
Counsel, Deputy General Counsel, Assistant General Counsel (Professional 
Staff Group I), Deputy Assistant General Counsel of said staff group, 
and Regional Counsels or those authorized to act for them, to collect in 
full, compromise, settle, or waive any claim and execute the release 
thereof; however, claims in excess of $100,000 may be compromised, 
settled, or waived only with the prior approval of the Department of 
Justice.
    (4) Under the Federal Claims Collection Act of 1966, 31 U.S.C. 3711, 
et seq., authority is delegated to the General Counsel, Deputy General 
Counsel, Assistant General Counsel, Deputy Assistant General Counsel and 
Regional Counsel, or those authorized to act for them, to:
    (i) Make appropriate determinations with respect to the litigative 
probabilities of a claim (Sec. 1.932 of this chapter), the legal merits 
of a claim (Sec. 1.942(e) of this chapter), and any other legal 
considerations of a claim.
    (ii) Collect in full a claim involving damage to or loss of 
government property under the jurisdiction of the Department of Veterans 
Affairs resulting from negligence or other legal wrong of a person 
(other than an employee of the Government while acting within the scope 
of his or her employment)

[[Page 137]]

and to compromise, suspend, or terminate any such claim not exceeding 
$100,000.
    (iii) Collect a claim in full from an individual or legal entity who 
is liable for the cost of hospital, medical, surgical, or dental care 
and treatment of a person, and to compromise, suspend, or terminate any 
such claim not exceeding $100,000.


(Authority: 31 U.S.C. 3711(a)(2); 38 U.S.C. 501, 512).

    (iv) The delegations of authority set forth in paragraphs (e)(4)(ii) 
and (iii) of this section do not apply to the handling of any claim as 
to which there is an indication of fraud, the presentation of a false 
claim or misrepresentation on the part of the debtor or any other party 
having an interest in the claim, or to any claim based in whole or in 
part on conduct in violation of the antitrust laws. Such cases will be 
considered by the General Counsel, who will make the determination in 
all instances as to whether the case warrants referral to the Department 
of Justice. The delegations of authority are applicable to those claims 
where the Department of Justice determines that action based upon the 
alleged fraud, false claim, or misrepresentation is not warranted.
    (5) Pursuant to the provisions of the Military Personnel and 
Civilian Employees' Claim Act of 1964, 31 U.S.C. 3721, as amended, the 
General Counsel, Deputy General Counsel, Assistant General Counsel 
(Professional Staff Group III), Deputy Assistant General Counsel of said 
staff group, and Regional Counsel or those authorized to act for them, 
are authorized to settle and pay a claim for not more than $40,000 made 
by a civilian officer or employee of the Department of Veterans Affairs 
for damage to, or loss of, personal property incident to his or her 
service. (Pub. L. 97-226)
    (6) Under the provisions of 38 U.S.C. 7316(e), authority is 
delegated to the General Counsel, Deputy General Counsel, and the 
Assistant General Counsel (Professional Staff Group I) to hold harmless 
or provide liability insurance for any person to whom the immunity 
provisions of section 7316 apply, for damage for personal injury or 
death, or for property damage, negligently caused by such person while 
furnishing medical care or treatment in the exercise of his or her 
duties in or for the Veterans Health Administration, if such person is 
assigned to a foreign country, detailed to State or political division 
thereof, or is acting under any other circumstances which would preclude 
the remedies of an injured third person against the United States, 
provided by sections 1346(b) and 2672 of title 28, United States Code, 
for such damage or injury.
    (7) The General Counsel, Deputy General Counsel, and those 
authorized to act for them, are authorized to conduct investigations, 
examine witnesses, take affidavits, administer oaths and affirmations, 
and certify copies of public or private documents on all matters within 
the jurisdiction of the General Counsel. Pursuant to the provisions of 
Sec. 2.2(c), the General Counsel, Deputy General Counsel, and those 
authorized to act for them, are authorized to countersign VA Form 4505.
    (8) The General Counsel, or the Deputy General Counsel acting as or 
for the General Counsel, is authorized to designate, in accordance with 
established standards, those legal opinions of the General Counsel which 
will be considered precedent opinions involving veterans' benefits under 
laws administered by the Department of Veterans Affairs.


(Authority: 38 U.S.C. 501, 512)

    (9) Under the provisions of 38 U.S.C. 1729(c)(1), authority is 
delegated to the General Counsel, Deputy General Counsel, Assistant 
General Counsel (Professional Staff Group I), Deputy Assistant General 
Counsel of said staff group, and Regional Counsel, or those authorized 
to act for them, to collect in full, compromise, settle, or waive any 
claim and execute the release thereof; however, claims in excess of 
$100,000 may only be compromised, settled, or waived with the prior 
approval of the

[[Page 138]]

General Counsel, Deputy General Counsel, Assistant General Counsel 
(Professional Staff Group I), or Deputy Assistant General Counsel of 
said staff group, or those authorized to act for them.


(Authority: 31 U.S.C. 3711(a)(2); 38 U.S.C. 501, 512).

    (10) The General Counsel and the Deputy General Counsel are 
authorized to make final Departmental decisions on appeals under the 
Freedom of Information Act, the Privacy Act, 38 U.S.C. 5701 and 5705.


(Authority: 38 U.S.C. 512)

    (11) All authority delegated in this paragraph to Regional Counsels 
will be exercised by them under the supervision of and in accordance 
with instructions issued by the General Counsel.
    (f) National Cemetery Administration. Under Secretary for Memorial 
Affairs is delegated authority:
    (1) To act on all matters assigned to the National Cemetery 
Administration by statute (38 U.S.C. chapter 24) and by regulation 
except where specifically requiring the personal attention or action of 
the Secretary and to authorize supervisory personnel within the 
jurisdiction of the Under Secretary for Memorial Affairs, to perform 
such functions as may be assigned.
    (2) To designate, as deemed necessary, Superintendents of National 
Cemeteries as special investigators under 38 U.S.C. 901, however, such 
law enforcement authority is limited to enforcement of rules and 
regulations governing conduct on property under the charge and control 
of the Department of Veterans Affairs, as those rules and regulations 
apply to the cemetery over which the individual Superintendent exercises 
control and jurisdiction. Such designation will not authorize the 
carrying of firearms by any Superintendent.
    (3) To accept donations of a minor nature, such as, individual trees 
for planting in burial areas and privately purchased grave markers.
    (4) To name features in national cemeteries, such as, roads, walks, 
and special structures.
    (5) To establish policies and specifications for inscriptions on 
Government headstones, markers, and private monuments.


(Authority: 38 U.S.C. 501, 512, 2404)

    (g) Inspector General. (1) The Secretary delegates to the Inspector 
General, the authority, as head of the Department of Veterans Affairs, 
to make written requests under the Privacy Act of 1974, 5 U.S.C. 
552a(b)(7), for the transfer of records or copies of records maintained 
by other agencies which are necessary to carry out an authorized law 
enforcement activity of the Office of Inspector General. This delegation 
is made pursuant to 38 U.S.C. 512. The Inspector General may redelegate 
the foregoing authority within the Office of Inspector General, but the 
delegation may only be to an official of sufficient rank to ensure that 
the request for the records has been the subject of a high level 
evaluation of the need for the information.
    (2) The Inspector General delegates the authority under the 
Inspector General Act of 1978, and redelegates the authority under 
paragraph (a) of this section, to request Privacy Act-protected records 
from Federal agencies pursuant to subsection (b)(7) of the Privacy Act 
to each of the following Office of Inspector General officials: (i) 
Deputy Inspector General, (ii) Assistant Inspector General for 
Investigations, (iii) Deputy Assistant Inspector General for 
Investigations, (iv) Chief of Operations, and (v) Special Agents in 
Charge of Field Offices of Investigations. These officials may not 
redelegate this authority.


(Authority: 5 U.S.C. 552a)

    (h) Delegations to Office Resolution Management Officials (ORM). (1) 
The Deputy Assistant Secretary for Resolution Management is delegated 
authority to supervise and control the operation of the administrative 
EEO Discrimination Complaint Processing System within the Department.
    (2) The Deputy Assistant Secretary for Resolution Management, the 
Chief Operating Officer, and all Regional EEO Officers/Field Managers 
are delegated authority to make procedural agency decisions to either 
accept or dismiss, in whole or in part, EEO discrimination complaints 
based upon

[[Page 139]]

race, color, national origin, sex, religion, age, disability, or 
reprisal filed by employees, former employees, or applicants for 
employment.
    (3) The Deputy Assistant Secretary for Resolution Management, the 
Chief Operating Officer, and the Chief, Policy and Compliance are 
delegated authority to make agency decisions on all breach of settlement 
claims raised by employees, former employees, and applicants for 
employment.
    (4) The Deputy Assistant Secretary for Resolution Management, the 
Chief Operating Officer, and the Chief, Policy and Compliance are 
delegated authority to consider and resolve all claims raised by 
employees, former employees, and applicants for employment that allege 
dissatisfaction with the processing of a previously filed EEO 
discrimination complaint.
    (5) The Deputy Assistant Secretary for Resolution Management, the 
Chief Operating Officer, and the Chief, Policy and Compliance are 
delegated authority to monitor compliance by Department organizational 
components with orders and decisions of the OEDCA and the EEOC.
    (i) Delegations to officials of the Office of Employment 
Discrimination Complaint Adjudication (OEDCA). (1) The Director and 
Associate Director, OEDCA, are delegated authority to make procedural 
decisions to dismiss, in whole or in part, any EEO discrimination 
complaint filed by any employee, former employee, or applicant for 
employment that may be pending before OEDCA, where administrative 
complaint processing efficiency may be best served by doing so.
    (2) The Director and Associate Director, OEDCA, are delegated 
authority to dismiss, in whole or in part any EEO discrimination 
complaint based upon race, color, religion, sex, national origin, age, 
disability, or reprisal filed by any ORM employee, former employee, or 
applicant for employment.
    (3) The Director and Associate Director, OEDCA, are delegated 
authority to make the agency decision on all breach of settlement claims 
raised by ORM employees, former employees, and applicants for 
employment.
    (4) The Director and Associate Director, OEDCA, are delegated 
authority to consider and resolve all claims raised by ORM employees, 
former employees, and applicants for employment that allege 
dissatisfaction with the processing of a previously filed EEO 
discrimination complaint.
    (5) The Director and Associate Director, OEDCA, are delegated 
authority to make procedural agency decisions to either accept or 
dismiss, in whole or in part, EEO discrimination complaints filed by 
employees, former employees, or applicants for employment where the ORM 
must recuse itself from a case due to an actual, apparent, or potential 
conflict of interest.
    (j) Delegation to the Chairman, Board of Contract Appeals. In cases 
where OEDCA has recused itself from a case due to an actual, apparent, 
or potential conflict of interest, the Chairman, Board of Contract 
Appeals, is delegated authority to make procedural agency decisions to 
dismiss, in whole or in part, EEO discrimination complaints filed by 
agency employees, former employees, and applicants for employment; to 
make substantive final agency decisions where complainants do not 
request an EEOC hearing; and to take agency action following a decision 
by an EEOC Administrative Judge.
    (k) Processing complaints involving certain officials. A complaint 
alleging that the Secretary or the Deputy Secretary personally made a 
decision directly related to matters in dispute, or are otherwise 
personally involved in such matters, will be referred for procedural 
acceptability review, investigation, and substantive decisionmaking to 
another Federal agency (e.g., The Department of Justice) pursuant to a 
cost reimbursement agreement. Referral will not be made when the action 
complained of relates merely to ministerial involvement in such matters 
(e.g., ministerial approval of selection recommendations submitted to 
the Secretary by the Under Secretary for Health, the Under Secretary for 
Benefits, the Under Secretary for Memorial Affairs, assistant 
secretaries, or staff office heads).
    (l) Assistant to the Secretary, Office of Regulation Policy and 
Management. The Assistant to the Secretary for Regulation Policy and 
Management (ASRPM) is delegated authority:

[[Page 140]]

    (1) To act on all matters assigned to the Office of Regulation 
Policy and Management, except such matters as require the personal 
attention or action of the Secretary or the Secretary's Regulatory 
Policy Council.
    (2) To manage and coordinate the Department's rulemaking activities, 
including the revision and reorganization of regulations.
    (3) To serve as the Regulatory Policy Officer for the Department's 
rulemaking activities in accordance with Executive Order 12866.

(Authority: 38 U.S.C. 501, 512)

[25 FR 11095, Nov. 23, 1960]

    Editorial Note: For Federal Register citations affecting Sec. 2.6, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 2.7  Delegation of authority to provide relief on account of 
administrative error.

    (a) Section 503(a) of title 38 U.S.C., provides that if the 
Secretary determines that benefits administered by the Department of 
Veterans Affairs have not been provided by reason of administrative 
error on the part of the Federal Government or any of its employees, the 
Secretary is authorized to provide such relief on account of such error 
as the Secretary determines equitable, including the payment of moneys 
to any person whom he determines equitably entitled thereto.
    (b) Section 503(b) of title 38 U.S.C., provides that if the 
Secretary determines that any veteran, surviving spouse, child of a 
veteran, or other person, has suffered loss, as a consequence of 
reliance upon a determination by the Department of Veterans Affairs of 
eligibility or entitlement to benefits, without knowledge that it was 
erroneously made, the Secretary is authorized to provide such relief as 
the Secretary determines equitable, including the payment of moneys to 
any person equitably entitled thereto. The Secretary is also required to 
submit an annual report to the Congress, containing a brief summary of 
each recommendation for relief and its disposition. Preparation of the 
report shall be the responsibility of the General Counsel.
    (c) The authority to grant the equitable relief, referred to in 
paragraphs (a) and (b) of this section, has not been delegated and is 
reserved to the Secretary. Recommendation for the correction of 
administrative error and for appropriate equitable relief therefrom will 
be submitted to the Secretary, through the General Counsel. Such 
recommendation may be initiated by the head of the administration having 
responsibility for the benefit, or of any concerned staff office, or by 
the Chairman, Board of Veterans Appeals. When a recommendation for 
relief under paragraph (a) or (b) of this section is initiated by the 
head of a staff office, or the Chairman, Board of Veterans Appeals, the 
views of the head of the administration having responsibility for the 
benefit will be obtained and transmitted with the recommendation of the 
initiating office.

(Authority: 38 U.S.C. 503, 512)

[37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54 
FR 34981, Aug. 23, 1989; 68 FR 25504, May 13, 2002]



Sec. 2.8  Delegation of authority to authorize allowances for Department 
of Veterans Affairs employees who are notaries public.

    (a) Employees occupying or acting in the positions designated in 
paragraph (b) of this section are authorized to designate those 
employees who are required to serve as notaries public in connection 
with the performance of official business and to pay an allowance for 
the costs therefor not to exceed the expense required to be incurred by 
them in order to obtain their commission.


(Authority: 5 U.S.C. 5945)

    (b) Designated positions: Deputy Secretary, Under Secretary for 
Benefits, Director, Office of Data Management and Telecommunications, 
Chief Medical Director, General Counsel, Directors of regional offices, 
hospitals, domiciliaries, and centers.

[35 FR 13771, Aug. 29, 1970, as amended at 49 FR 30693, Aug. 1, 1984]

[[Page 141]]



PART 3_ADJUDICATION--Table of Contents




     Subpart A_Pension, Compensation, and Dependency and Indemnity 
                              Compensation

                                 General

Sec.
3.1 Definitions.
3.2 Periods of war.
3.3 Pension.
3.4 Compensation.
3.5 Dependency and indemnity compensation.
3.6 Duty periods.
3.7 Individuals and groups considered to have performed active military, 
          naval, or air service.
3.10 [Reserved]
3.11 Homicide.
3.12 Character of discharge.
3.12a Minimum active-duty service requirement.
3.13 Discharge to change status.
3.14 Validity of enlistments.
3.15 Computation of service.
3.16 Service pension.
3.17 Disability and death pension; Mexican border period and later war 
          periods.
3.18-3.19 [Reserved]
3.20 Surviving spouse's benefit for month of veteran's death.
3.21 Monetary rates.
3.22 DIC benefits for survivors of certain veterans rated totally 
          disabled at time of death.
3.23 Improved pension rates--Veterans and surviving spouses.
3.24 Improved pension rates--Surviving children.
3.25 Parents' dependency and indemnity compensation (DIC)--Method of 
          payment computation.
3.26 Section 306 and old-law pension annual income limitations.
3.27 Automatic adjustment of benefit rates.
3.28 Automatic adjustment of section 306 and old-law pension income 
          limitations.
3.29 Rounding.
3.30 Frequency of payment of improved pension and parents' dependency 
          and indemnity compensation (DIC).
3.31 Commencement of the period of payment.
3.32 Exchange rates for foreign currencies.

                                 General

3.40 Philippine and Insular Forces.
3.41 Philippine service.
3.42 Compensation at the full-dollar rate for certain Filipino veterans 
          residing in the United States.
3.43 Burial benefits at the full-dollar rate for certain Filipino 
          veterans residing in the United States on the date of death.

                              Relationship

3.50 Spouse and surviving spouse.
3.52 Marriages deemed valid.
3.53 Continuous cohabitation.
3.54 Marriage dates.
3.55 Reinstatement of benefits eligibility based upon terminated marital 
          relationships.
3.56 [Reserved]
3.57 Child.
3.58 Child adopted out of family.
3.59 Parent.
3.60 Definition of ``living with''.

                             Administrative

3.100 Delegations of authority.
3.102 Reasonable doubt.
3.103 Procedural due process and appellate rights.
3.104 Finality of decisions.
3.105 Revision of decisions.
3.106 Renouncement.
3.107 Awards where not all dependents apply.
3.108 State Department as agent of Department of Veterans Affairs.
3.109 Time limit.
3.110 Computation of time limit.
3.111 [Reserved]
3.112 Fractions of one cent.
3.114 Change of law or Department of Veterans Affairs issue.
3.115 Access to financial records.

                                 Claims

3.150 Forms to be furnished.
3.151 Claims for disability benefits.
3.152 Claims for death benefits.
3.153 Claims filed with Social Security.
3.154 Injury due to hospital treatment, etc.
3.155 Informal claims.
3.156 New and material evidence.
3.157 Report of examination or hospitalization as claim for increase or 
          to reopen.
3.158 Abandoned claims.
3.159 Department of Veterans Affairs assistance in developing claims.
3.160 Status of claims.

                          Evidence Requirements

3.200 Testimony certified or under oath.
3.201 Exchange of evidence; Social Security and Department of Veterans 
          Affairs.
3.202 Evidence from foreign countries.
3.203 Service records as evidence of service and character of discharge.
3.204 Evidence of dependents and age.
3.205 Marriage.
3.206 Divorce.
3.207 Void or annulled marriage.
3.208 Claims based on attained age.
3.209 Birth.
3.210 Child's relationship.
3.211 Death.
3.212 Unexplained absence for 7 years.

[[Page 142]]

3.213 Change of status affecting entitlement.
3.214 Court decisions; unremarried surviving spouses.
3.215 Termination of marital relationship or conduct.
3.216 Mandatory disclosure of social security numbers.
3.217 Submission of statements or information affecting entitlement to 
          benefits.

                      Dependency, Income and Estate

  Regulations Applicable to Programs in Effect Prior to January 1, 1979

3.250 Dependency of parents; compensation.
3.251 Income of parents; dependency and indemnity compensation.
3.252 Annual income; pension; Mexican border period and later war 
          periods.
3.253-3.255 [Reserved]
3.256 Eligibility reporting requirements.
3.257 Children; no surviving spouse entitled.
3.258-3.259 [Reserved]
3.260 Computation of income.
3.261 Character of income; exclusions and estates.
3.262 Evaluation of income.
3.263 Corpus of estate; net worth.
3.270 Applicability of various dependency, income and estate 
          regulations.

  Regulations Applicable to the Improved Pension Program Which Became 
                        Effective January 1, 1979

3.271 Computation of income.
3.272 Exclusions from income.
3.273 Rate computation.
3.274 Relationship of net worth to pension entitlement.
3.275 Criteria for evaluating net worth.
3.276 Certain transfers or waivers disregarded.
3.277 Eligibility reporting requirements.

        Ratings and Evaluations; Basic Entitlement Considerations

3.300 Claims based on the effects of tobacco products.
3.301 Line of duty and misconduct.
3.302 Service connection for mental unsoundness in suicide.

               Ratings and Evaluations; Service Connection

3.303 Principles relating to service connection.
3.304 Direct service connection; wartime and peacetime.
3.305 Direct service connection; peacetime service before January 1, 
          1947.
3.306 Aggravation of preservice disability.
3.307 Presumptive service connection for chronic, tropical or prisoner-
          of-war related disease, or disease associated with exposure to 
          certain herbicide agents; wartime and service on or after 
          January 1, 1947.
3.308 Presumptive service connection; peacetime service before January 
          1, 1947.
3.309 Disease subject to presumptive service connection.
3.310 Proximate results, secondary conditions.
3.311 Claims based on exposure to ionizing radiation.
3.312 Cause of death.
3.313 Claims based on service in Vietnam.
3.314 Basic pension determinations.
3.315 Basic eligibility determinations; dependents, loans, education.
3.316 Claims based on chronic effects of exposure to mustard gas and 
          Lewisite.
3.317 Compensation for certain disabilities due to undiagnosed 
          illnesses.
3.318-3.320 [Reserved]
3.321 General rating considerations.
3.322 Rating of disabilities aggravated by service.
3.323 Combined ratings.
3.324 Multiple noncompensable service-connected disabilities.
3.325 [Reserved]
3.326 Examinations.
3.327 Reexaminations.
3.328 Independent medical opinions.
3.329 [Reserved]
3.330 Resumption of rating when veteran subsequently reports for 
          Department of Veterans Affairs examination.
3.331-3.339 [Reserved]
3.340 Total and permanent total ratings and unemployability.
3.341 Total disability ratings for compensation purposes.
3.342 Permanent and total disability ratings for pension purposes.
3.343 Continuance of total disability ratings.
3.344 Stabilization of disability evaluations.

                      Ratings for Special Purposes

3.350 Special monthly compensation ratings.
3.351 Special monthly dependency and indemnity compensation, death 
          compensation, pension and spouse's compensation ratings.
3.352 Criteria for determining need for aid and attendance and 
          ``permanently bedridden.''
3.353 Determinations of incompetency and competency.
3.354 Determinations of insanity.
3.355 Testamentary capacity for insurance purposes.
3.356 Conditions which determine permanent incapacity for self-support.
3.357 Civil service preference ratings.
3.358 Compensation for disability or death from hospitalization, medical 
          or surgical treatment, examinations or vocational 
          rehabilitation training (Sec. 3.800).

[[Page 143]]

3.359 Determination of service connection for former members of the 
          Armed Forces of Czechoslovakia or Poland.
3.360 Service-connected health-care eligibility of certain persons 
          administratively discharged under other than honorable 
          condition.
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.
3.362 Offsets under 38 U.S.C. 1151(b) of benefits awarded under 38 
          U.S.C. 1151(a).
3.363 Bar to benefits under 38 U.S.C. 1151.

           Rating Considerations Relative to Specific Diseases

3.370 Pulmonary tuberculosis shown by X-ray in active service.
3.371 Presumptive service connection for tuberculous disease; wartime 
          and service on or after January 1, 1947.
3.372 Initial grant following inactivity of tuberculosis.
3.373 [Reserved]
3.374 Effect of diagnosis of active tuberculosis.
3.375 Determination of inactivity (complete arrest) in tuberculosis.
3.376-3.377 [Reserved]
3.378 Changes from activity in pulmonary tuberculosis pension cases.
3.379 Anterior poliomyelitis.
3.380 Diseases of allergic etiology.
3.381 Service connection of dental conditions for treatment purposes.
3.382 [Reserved]
3.383 Special consideration for paired organs and extremities.
3.384 [Reserved]
3.385 Disability due to impaired hearing.

                             Effective Dates

3.400 General.
3.401 Veterans.
3.402 Surviving spouse.
3.403 Children.
3.404 Parents.
3.405 Filipino veterans; benefits at the full-dollar rate.

                             Apportionments

3.450 General.
3.451 Special apportionments.
3.452 Situations when benefits may be apportioned.
3.453 Veterans compensation or service pension or retirement pay.
3.454 Veterans disability pension.
3.458 Veteran's benefits not apportionable.
3.459 Death compensation.
3.460 Death pension.
3.461 Dependency and indemnity compensation.

                     Reductions and Discontinuances

3.500 General.
3.501 Veterans.
3.502 Surviving spouses.
3.503 Children.
3.504 Parents; aid and attendance.
3.505 Filipino veterans; benefits at the full-dollar rate.

                       Hospitalization Adjustments

3.551 Reduction because of hospitalization.
3.552 Adjustment of allowance for aid and attendance.
3.553-3.555 [Reserved]
3.556 Adjustment on discharge or release.
3.557 [Reserved]
3.558 Resumption and payment of withheld benefits; incompetents with 
          estates that equaled or exceeded statutory limit.
3.559 [Reserved]

                       Adjustments and Resumptions

3.650 Rate for additional dependent.
3.651 Change in status of dependents.
3.652 Periodic certification of continued eligibility.
3.653 Foreign residence.
3.654 Active service pay.
3.655 Failure to report for Department of Veterans Affairs examination.
3.656 Disappearance of veteran.
3.657 Surviving spouse becomes entitled, or entitlement terminates.
3.658 Offsets; dependency and indemnity compensation.
3.659 Two parents in same parental line.
3.660 Dependency, income and estate.
3.661 Eligibility Verification Reports.
3.662-3.664 [Reserved]
3.665 Incarcerated beneficiaries and fugitive felons--compensation.
3.666 Incarcerated beneficiaries and fugitive felons--pension.
3.667 School attendance.
3.668 [Reserved]
3.669 Forfeiture.

                    Concurrent Benefits and Elections

3.700 General.
3.701 Elections of pension or compensation.
3.702 Dependency and indemnity compensation.
3.703 Two parents in same parental line.
3.704 Elections within class of dependents.
3.705-3.706 [Reserved]
3.707 Dependents' educational assistance.
3.708 Federal Employees' Compensation.
3.710 Civil service annuitants.
3.711 Improved pension elections.
3.712 Improved pension elections; surviving spouses of Spanish-American 
          War veterans.
3.713 Effective dates of improved pension elections.
3.714 Improved pension elections--public assistance beneficiaries.

[[Page 144]]

3.715 Radiation Exposure Compensation Act of 1990.

                               Retirement

3.750 Retirement pay.
3.751 Statutory awards; retired service personnel.
3.752 [Reserved]
3.753 Public Health Service.
3.754 Emergency officers' retirement pay.

                            Special Benefits

3.800 Disability or death due to hospitalization, etc.
3.801 Special acts.
3.802 Medal of Honor.
3.803 Naval pension.
3.804 Special allowance under 38 U.S.C. 1312.
3.805 Loan guaranty for surviving spouses; certification.
3.806 Death gratuity; certification.
3.807 Dependents' educational assistance; certification.
3.808 Automobiles or other conveyances; certification.
3.809 Specially adapted housing under 38 U.S.C. 2101(a).
3.809a Special home adaptation grants under 38 U.S.C. 2101(b).
3.810 Clothing allowance.
3.811 Minimum income annuity and gratuitous annuity.
3.812 Special allowance payable under section 156 of Pub. L. 97-377.
3.813 Interim benefits for disability or death due to chloracne or 
          porphyria cutanea tarda.
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.
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.
3.816 Awards under the Nehmer Court Orders for disability or death 
          caused by a condition presumptively associated with herbicide 
          exposure.

           Incompetents, Guardianship and Institutional Awards

3.850 General.
3.851 St. Elizabeths Hospital, Washington, DC.
3.852 Institutional awards.
3.853 Incompetents; estate over $25,000.
3.854 Limitation on payments for minor.
3.855 Beneficiary rated or reported incompetent.
3.856 Change of name of female fiduciary.
3.857 Children's benefits to fiduciary of surviving spouse.

                               Forfeiture

3.900 General.
3.901 Fraud.
3.902 Treasonable acts.
3.903 Subversive activities.
3.904 Effect of forfeiture after veteran's death.
3.905 Declaration of forfeiture or remission of forfeiture.

                               Protection

3.950 Helpless children; Spanish-American and prior wars.
3.951 Preservation of disability ratings.
3.952 Protected ratings.
3.953 Pub. L. 85-56 and Pub. L. 85-857.
3.954 Burial allowance.
3.955-3.956 [Reserved]
3.957 Service connection.
3.958 Federal employees' compensation cases.
3.959 Tuberculosis.
3.960 Section 306 and old-law pension protection.

                                 Accrued

3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon 
          death of a beneficiary.
3.1001 Hospitalized competent veterans.
3.1002 Political subdivisions of United States.
3.1003 Returned and canceled checks.
3.1004-3.1006 [Reserved]
3.1007 Hospitalized incompetent veterans.
3.1008 Accrued benefits payable to foreign beneficiaries.
3.1009 Personal funds of patients.

                        Subpart B_Burial Benefits

3.1600 Payment of burial expenses of deceased veterans.
3.1601 Claims and evidence.
3.1602 Special conditions governing payments.
3.1603 Authority for burial of certain unclaimed bodies.
3.1604 Payments from non-Department of Veterans Affairs sources.
3.1605 Death while traveling under prior authorization or while 
          hospitalized by the Department of Veterans Affairs.
3.1606 Transportation items.
3.1607 Cost of flags.
3.1608 Nonallowable expenses.
3.1609 Forfeiture.
3.1610 Burial in national cemeteries; burial of unclaimed bodies.
3.1611 Official Department of Veterans Affairs representation at 
          funeral.
3.1612 Monetary allowance in lieu of a Government-furnished headstone or 
          marker.

[[Page 145]]

Subpart C [Reserved]

  Subpart D_Universal Adjudication Rules That Apply to Benefit Claims 
                    Governed by Part 3 of This Title

                                 General

3.2100 Scope of Applicability.
3.2130 Will VA accept a signature by mark or thumbprint?

                                Revisions

3.2600 Review of benefit claims decisions.

    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.



     Subpart A_Pension, Compensation, and Dependency and Indemnity 
                              Compensation

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

                                 General



Sec. 3.1  Definitions.

    (a) Armed Forces means the United States Army, Navy, Marine Corps, 
Air Force, and Coast Guard, including their Reserve components.
    (b) Reserve component means the Army, Naval, Marine Corps, Air 
Force, and Coast Guard Reserves and the National and Air National Guard 
of the United States.
    (c) Reserves means members of a Reserve component of one of the 
Armed Forces.
    (d) Veteran means a person who served in the active military, naval, 
or air service and who was discharged or released under conditions other 
than dishonorable.
    (1) For compensation and dependency and indemnity compensation the 
term veteran includes a person who died in active service and whose 
death was not due to willful misconduct.
    (2) For death pension the term veteran includes a person who died in 
active service under conditions which preclude payment of service-
connected death benefits, provided such person had completed at least 2 
years honorable military, naval or air service, as certified by the 
Secretary concerned. (See Sec. Sec. 3.3(b)(3)(i) and 3.3(b)(4)(i))


(Authority: 38 U.S.C. 501)

    (e) Veteran of any war means any veteran who served in the active 
military, naval or air service during a period of war as set forth in 
Sec. 3.2.
    (f) Period of war means the periods described in Sec. 3.2.
    (g) Secretary concerned means:
    (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;
    (4) The Secretary of Transportation, 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 includes retirement from the active 
military, naval, or air service.
    (i) State means each of the several States, Territories and 
possessions of the United States, the District of Columbia, and 
Commonwealth of Puerto Rico.
    (j) Marriage means a marriage valid under the law of the place where 
the parties resided at the time of marriage, or the law of the place 
where the parties resided when the right to benefits accrued.


(Authority: 38 U.S.C. 103(c))

    (k) Service-connected means, with respect to disability or death, 
that such disability was incurred or aggravated, or that the death 
resulted from a disability incurred or aggravated, in line of duty in 
the active military, naval, or air service.
    (l) Nonservice-connected means, with respect to disability or death, 
that

[[Page 146]]

such disability was not incurred or aggravated, or that the death did 
not result from a disability incurred or aggravated, in line of duty in 
the active military, naval, or air service.
    (m) In line of duty means an injury or disease incurred or 
aggravated during a period of active military, naval, or air service 
unless such injury or disease was the result of the veteran's own 
willful misconduct or, for claims filed after October 31, 1990, was a 
result of his or her abuse of alcohol or drugs. A service department 
finding that injury, disease or death occurred in line of duty will be 
binding on the Department of Veterans Affairs unless it is patently 
inconsistent with the requirements of laws administered by the 
Department of Veterans Affairs. Requirements as to line of duty are not 
met if at the time the injury was suffered or disease contracted the 
veteran was:
    (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 Sec. 3.1(y)(2)(iii) for applicability of in line of duty 
in determining former prisoner of war status.

    (n) Willful misconduct means an act involving conscious wrongdoing 
or known prohibited action. A service department finding that injury, 
disease or death was not due to misconduct will be binding on the 
Department of Veterans Affairs unless it is patently inconsistent with 
the facts and the requirements of laws administered by the Department of 
Veterans Affairs.
    (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 Sec. Sec. 3.301, 
3.302.)
    (o) Political subdivision of the United States includes the 
jurisdiction defined as a State in paragraph (i) of this section, and 
the counties, cities or municipalities of each.
    (p) Claim--Application means a formal or informal communication in 
writing requesting a determination of entitlement or evidencing a belief 
in entitlement, to a benefit.
    (q) Notice means written notice sent to a claimant or payee at his 
or her latest address of record.
    (r) Date of receipt means the date on which a claim, information or 
evidence was received in the Department of Veterans Affairs, except as 
to specific provisions for claims or evidence received in the State 
Department (Sec. 3.108), or in the Social Security Administration 
(Sec. Sec. 3.153, 3.201), or Department of Defense as to initial claims 
filed at or prior to separation. However, the Under Secretary for 
Benefits may establish, by notice published in the Federal Register, 
exceptions to this rule, using factors such as postmark or the date the 
claimant signed the correspondence, when he or she determines that a 
natural or man-made interference with the normal channels through which 
the Veterans Benefits Administration ordinarily receives correspondence 
has resulted in one or more Veterans Benefits Administration offices 
experiencing extended delays in receipt of claims, information, or 
evidence from claimants served by the affected office or offices to an 
extent that, if not addressed, would adversely affect such claimants 
through no fault of their own.


(Authority: 38 U.S.C. 501(a), 512(a), 5110)

    (s) On the borders thereof means, with regard to service during the 
Mexican border period, the States of Arizona, California, New Mexico, 
and Texas, and the nations of Guatemala and British Honduras.


(Authority: 38 U.S.C. 101(30))

    (t) In the waters adjacent thereto means, with regard to service 
during the Mexican border period, the waters (including the islands 
therein) which

[[Page 147]]

are within 750 nautical miles (863 statute miles) of the coast of the 
mainland of Mexico.


(Authority: 38 U.S.C. 101(30)

    (u) Section 306 pension means those disability and death pension 
programs in effect on December 31, 1978, which arose out of Pub. L. 86-
211; 73 Stat. 432.
    (v) Old-Law pension means the disability and death pension programs 
that were in effect on June 30, 1960. Also known as protected pension, 
i.e. protected under section 9(b) of the Veteran's Pension Act of 1959 
(Pub. L. 86-211; 73 Stat. 432).
    (w) Improved pension means the disability and death pension programs 
becoming effective January 1, 1979, under authority of Pub. L. 95-588; 
92 Stat. 2497.
    (x) Service pension is the name given to Spanish-American War 
pension. It is referred to as a service pension because entitlement is 
based solely on service without regard to nonservice-connected 
disability, in come and net worth.


(Authority: 38 U.S.C. 1512, 1536)

    (y) Former prisoner of war. The term former prisoner of war means a 
person who, while serving in the active military, naval or air service, 
was forcibly detained or interned in the line of duty by an enemy or 
foreign government, the agents of either, or a hostile force.
    (1) Decisions based on service department findings. The Department 
of Veterans Affairs shall accept the findings of the appropriate service 
department that a person was a prisoner of war during a period of war 
unless a reasonable basis exists for questioning it. Such findings shall 
be accepted only when detention or internment is by an enemy government 
or its agents.
    (2) Other decisions. In all other situations, including those in 
which the Department of Veterans Affairs cannot accept the service 
department findings, the following factors shall be used to determine 
prisoner of war status:
    (i) Circumstances of detention or internment. To be considered a 
former prisoner of war, a serviceperson must have been forcibly detained 
or interned under circumstances comparable to those under which persons 
generally have been forcibly detained or interned by enemy governments 
during periods of war. Such circumstances include, but are not limited 
to, physical hardships or abuse, psychological hardships or abuse, 
malnutrition, and unsanitary conditions. Each individual member of a 
particular group of detainees or internees shall, in the absence of 
evidence to the contrary, be considered to have experienced the same 
circumstances as those experienced by the group.
    (ii) Reason for detainment or internment. The reason for which a 
serviceperson was detained or interned is immaterial in determining POW 
status, except that a serviceperson who is detained or interned by a 
foreign government for an alleged violation of its laws is not entitled 
to be considered a former POW on the basis of that period of detention 
or internment, unless the charges are a sham intended to legitimize the 
period of detention or internment.
    (3) Central Office approval. The Director of the Compensation and 
Pension Service, VA Central Office, shall approve all VA regional office 
determinations establishing or denying POW status, with the exception of 
those service department determinations accepted under paragraph (y)(1) 
of this section.
    (4) In line of duty. The Department of Veterans Affairs shall 
consider that a serviceperson was forcibly detained or interned in line 
of duty unless the evidence of record discloses that forcible detainment 
or internment was the proximate result of the serviceperson's own 
willful misconduct.
    (5) Hostile force. The term hostile force means any entity other 
than an enemy or foreign government or the agents of either whose 
actions are taken to further or enhance anti-American military, 
political or economic objectives or views, or to attempt to embarrass 
the United States.


(Authority: 38 U.S.C. 101(32))

    (z) Nursing home means
    (1) Any extended care facility which is licensed by a State to 
provide skilled or intermediate-level nursing care,

[[Page 148]]

    (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 Sec. 3.3. Compensation. See Sec. 
3.4. Dependency and indemnity compensation. See Sec. 3.5. Preservation 
of disability ratings. See Sec. 3.951. Service-connection. See Sec. 
3.957.

[26 FR 1563, Feb. 24, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 3.1, 
see the List of Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 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 
in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542 
means all of the war periods listed in this section except the Indian 
wars and the Spanish-American War. See Sec. 3.3(a)(3) and (b)(4)(i).
    (a) Indian wars. January 1, 1817, through December 31, 1898, 
inclusive. Service must have been rendered with the United States 
military forces against Indian tribes or nations.
    (b) Spanish-American War. April 21, 1898, through July 4, 1902, 
inclusive. If the veteran served with the United States military forces 
engaged in hostilities in the Moro Province, the ending date is July 15, 
1903. The Philippine Insurrection and the Boxer Rebellion are included.
    (c) World War I. April 6, 1917, through November 11, 1918, 
inclusive. If the veteran served with the United States military forces 
in Russia, the ending date is April 1, 1920. Service after November 11, 
1918 and before July 2, 1921 is considered World War I service if the 
veteran served in the active military, naval, or air service after April 
5, 1917 and before November 12, 1918.
    (d) World War II. December 7, 1941, through December 31, 1946, 
inclusive. If the veteran was in service on December 31, 1946, 
continuous service before July 26, 1947, is considered World War II 
service.
    (e) Korean conflict. June 27, 1950, through January 31, 1955, 
inclusive.
    (f) Vietnam era. The period beginning on February 28, 1961, and 
ending on May 7, 1975, inclusive, in the case of a veteran who served in 
the Republic of Vietnam during that period. The period beginning on 
August 5, 1964, and ending on May 7, 1975, inclusive, in all other 
cases.


(Authority: 38 U.S.C. 101(29))

    (g) Future dates. The period beginning on the date of any future 
declaration of war by the Congress and ending on a date prescribed by 
Presidential proclamation or concurrent resolution of the Congress.


(Authority: 38 U.S.C. 101)

    (h) Mexican border period. May 9, 1916, through April 5, 1917, in 
the case of a veteran who during such period served in Mexico, on the 
borders thereof, or in the waters adjacent thereto.


(Authority: 38 U.S.C. 101(30))


[[Page 149]]


    (i) Persian Gulf War. August 2, 1990, through date to be prescribed 
by Presidential proclamation or law.

(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]



Sec. 3.3  Pension.

    (a) Pension for veterans--(1) Service pension; Spanish-American War. 
A benefit payable monthly by the Department of Veterans Affairs because 
of service in the Spanish-American War. Basic entitlement exists if a 
veteran:
    (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. A benefit payable monthly by the Department 
of Veterans Affairs because of nonservice-connected disability or age. 
Basic entitlement exists if a veteran:
    (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) from nonservice-
connected disability not due to the veteran's own willful misconduct or 
vicious habits, or (b) by reason of having attained the age of 65 years 
or by reason of having become unemployable after age 65; and
    (v)(a) Is in receipt of section 306 pension or (b) has an 
application for pension pending on December 31, 1978, or (c) meets the 
age or disability requirements for such pension on December 31, 1978, 
and files a claim within 1 year of that date and also within 1 year 
after meeting the age or disability requirements.
    (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). A benefit 
payable by the Department of Veterans Affairs to veterans of a period or 
periods of war because of nonservice-connected disability or age. The 
qualifying periods of war for this benefit are the Mexican border 
period, World War I, World War II, the Korean conflict, the Vietnam era 
and the Persian Gulf War. Payments are made monthly unless the amount of 
the annual benefit is less than 4 percent of the maximum annual rate 
payable to a veteran under 38 U.S.C. 1521(b), in which case payments may 
be made less frequently than monthly. Basic entitlement exists if a 
veteran:
    (i) Served in the active military, naval or air 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 or air service during a 
period of

[[Page 150]]

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 or air 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 or air 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 Sec. 3.274 and does not 
have an annual income in excess of the applicable maximum annual pension 
rate specified in Sec. 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) A patient in a nursing home for long-term care because of 
disability; or
    (2) Disabled, as determined by the Commissioner of Social Security 
for purposes of any benefits administered by the Commissioner; or
    (3) Unemployable as a result of disability reasonably certain to 
continue throughout the life of the person; or
    (4) Suffering from:
    (i) Any disability which is sufficient to render it impossible for 
the average person to follow a substantially gainful occupation, but 
only if it is reasonably certain that such disability will continue 
throughout the life of the person; or
    (ii) Any disease or disorder determined by VA to be of such a nature 
or extent as to justify a determination that persons suffering from that 
disease or disorder are permanently and totally disabled.


(Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)

    (b) Pension for survivors--(1) Indian war death pension. A monthly 
benefit payable by the Department of Veterans Affairs to the surviving 
spouse or child of a deceased veteran of an Indian war. Basic 
entitlement exists if a veteran had qualifying service as specified in 
38 U.S.C. 1511. Indian war death pension rates are set forth in 38 
U.S.C. 1534 and 1535.
    (2) Spanish-American War death pension. A monthly benefit payable by 
the Department of Veterans Affairs to the surviving spouse or child of a 
deceased veteran of the Spanish-American War, if the veteran:
    (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 death pension. A monthly benefit payable by the 
Department of Veterans Affairs to a surviving spouse or child because of 
a veteran's nonservice-connected death. Basic entitlement exists if:
    (i) The veteran (as defined in Sec. 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,

[[Page 151]]

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 death pension, Public Law 95-588. A benefit payable by 
the Department of Veterans Affairs to a veteran's surviving spouse or 
child because of the veteran's nonservice-connected death. Payments are 
made monthly unless the amount of the annual benefit is less than 4 
percent of the maximum annual rate payable to a veteran under 38 U.S.C. 
1521(b), in which case payments may be made less frequently than 
monthly. Basic entitlement exists if:
    (i) The veteran (as defined in Sec. 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 Sec. 3.274 and has an annual income not in excess of the applicable 
maximum annual pension rate specified in Sec. Sec. 3.23 and 3.24.

(Authority: 38 U.S.C. 1541 and 1542).

    Cross References: Section 306 pension. See Sec. 3.1(u). Improved 
pension. See Sec. 3.1(w). Improved pension rates. See Sec. 3.23. 
Improved pension rates; surviving children. See Sec. 3.24. Frequency of 
payment of improved pension. See Sec. 3.30. Relationship of net worth 
to pension entitlement. See Sec. 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]



Sec. 3.4  Compensation.

    (a) Compensation. This term means a monthly payment made by the 
Department of Veterans Affairs to a veteran because of service-connected 
disability, or to a surviving spouse, child, or parent of a veteran 
because of the service-connected death of the veteran occurring before 
January 1, 1957, or under the circumstances outlined in paragraph (c)(2) 
of this section. If the veteran was discharged or released from service, 
the discharge or release must have been under conditions other than 
dishonorable.


(Authority: 38 U.S.C. 101(2), (13))

    (b) Disability compensation. (1) Basic entitlement for a veteran 
exists if the veteran is disabled as the result of a personal injury or 
disease (including aggravation of a condition existing prior to service) 
while in active service if the injury or the disease was incurred or 
aggravated in line of duty.


(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. Basic entitlement exists for a surviving 
spouse, child or children, and dependent parent or parents if:
    (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 Sec. 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]



Sec. 3.5  Dependency and indemnity compensation.

    (a) Dependency and indemnity compensation. This term means a monthly 
payment made by the Department of

[[Page 152]]

Veterans Affairs to a surviving spouse, child, or parent:
    (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. Basic entitlement for a surviving spouse, child or 
children, and parent or parents of a veteran exists, if:
    (1) Death occurred on or after January 1, 1957, except in the 
situation specified in Sec. 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. 410, 416, 417, Public Law 92-197, 85 
Stat. 660)
    (c) Exclusiveness of remedy. No person eligible for dependency and 
indemnity compensation by reason of a death occurring on or after 
January 1, 1957, shall be eligible by reason of such death for death 
pension or compensation under any other law administered by the 
Department of Veterans Affairs, except that, effective November 2, 1994, 
a surviving spouse who is receiving dependency and indemnity 
compensation may elect to receive death pension instead of such 
compensation.


(Authority: 38 U.S.C. 1317)

    (d) Group life insurance. No dependency and indemnity compensation 
or death compensation shall be paid to any surviving spouse, child or 
parent based on the death of a commissioned officer of the Public Health 
Service, the Coast and Geodetic Survey, the Environmental Science 
Services Administration, or the National Oceanic and Atmospheric 
Administration occuring on or after May 1, 1957, if any amounts are 
payable under the Federal Employees' Group Life Insurance Act of 1954 
(Pub. L. 598, 83d Cong., as amended) based on the same death.


(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))

    (e) Surviving spouses' rate. (1) When death occurred on or after 
January 1, 1993, the monthly rate of dependency and indemnity 
compensation for a surviving spouse shall be the amount set forth in 38 
U.S.C. 1311(a)(1). This rate shall be increased by the amount set forth 
in 38 U.S.C. 1311(a)(2) in the case of the death of a veteran who at the 
time of death was in receipt of or was entitled to receive (or but for 
the receipt of retired pay or retirement pay was entitled to receive) 
compensation for a service-connected disability that was evaluated as 
totally disabling for a continuous period of at least eight years 
immediately preceding death. In determining the eight year period, only 
periods during which the veteran was married to the surviving spouse 
shall be considered. The resulting rate is subject to increase as 
provided in paragraphs (e) (3) and (4) of this section.
    (2) The monthly rate of dependency and indemnity compensation for a 
surviving spouse when the death of the veteran occurred prior to January 
1, 1993, is based on the ``pay grade'' of the veteran, unless the 
formula provided in paragraph (e)(1) of this section results in a 
greater monetary benefit. The Secretary of the concerned service 
department will certify the ``pay grade'' of the veteran and the 
certification will be binding on the Department of Veterans Affairs. The 
resulting rate is subject to increase as provided in paragraphs (e) (3) 
and (4) of this section.


(Authority: 38 U.S.C. 1311(a) and 1321)

    (3) If there is a surviving spouse with one or more children under 
the age of 18 (including a child not in the surviving spouse's actual or 
constructive custody and a child who is in active

[[Page 153]]

military, air, or naval service), the total amount payable shall be 
increased by the amount set forth in 38 U.S.C. 1311(b) for each child.
    (4) If the surviving spouse is determined to be in need of regular 
aid and attendance under the criteria in Sec. 3.352 or is a patient in 
a nursing home, the total amount payable shall be increased by the 
amount set forth in 38 U.S.C. 1311(c). If the surviving spouse does not 
qualify for the regular aid and attendance allowance but is housebound 
under the criteria in Sec. 3.351(f), the total amount payable shall be 
increased by the amount set forth in 38 U.S.C. 1311(d).

[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]



Sec. 3.6  Duty periods.

    (a) Active military, naval, and air service. This includes active 
duty, any period of active duty for training during which the individual 
concerned was disabled or died from a disease or injury incurred or 
aggravated in line of duty, and any period of inactive duty training 
during which the individual concerned was disabled or died from an 
injury incurred or aggravated in line of duty or from an acute 
myocardial infarction, a cardiac arrest, or a cerebrovascular accident 
which occurred during such training.


(Authority: 38 U.S.C. 101(24))

    (b) Active duty. This means:
    (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, or
    (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) While on transfer to one of the Armed Forces, or
    (b) While, in time of war or national emergency declared by the 
President, assigned to duty on a project for one of the Armed Forces in 
an area determined by the Secretary of Defense to be of immediate 
military hazard, or
    (c) In the Philippine Islands on December 7, 1941, and continuously 
in such islands thereafter, or
    (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. (1) Full-time duty in the Armed Forces 
performed by Reserves for training purposes;
    (2) Full-time duty for training purposes performed as a commissioned 
officer of the Reserve Corps of the Public Health Service:

[[Page 154]]

    (i) On or after July 29, 1945, or
    (ii) Before that date under circumstances affording entitlement to 
full military benefits, or
    (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. This means: (1) Duty (other than full-
time duty) prescribed for Reserves (including commissioned officers of 
the Reserve Corps of the Public Health Service) by the Secretary 
concerned under 37 U.S.C. 206 or any other provision of law;
    (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 does not include:
    (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). Any individual:
    (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

[[Page 155]]

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 means any 
of the following:
    (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]



Sec. 3.7  Individuals and groups considered to have performed active 
military, naval, or air service.

    The following individuals and groups are considered to have 
performed active military, naval, or air service:
    (a) Aerial transportation of mail (Pub. L. 140, 73d Congress). 
Persons who were injured or died while serving under conditions set 
forth in Pub. L. 140, 73d Congress.
    (b) Aliens. Effective July 28, 1959, a veteran discharged for 
alienage during a period of hostilities unless evidence affirmatively 
shows he or she was discharged at his or her own request. A veteran who 
was discharged for alienage after a period of hostilities and whose 
service was honest and faithful is not barred from benefits if he or she 
is otherwise entitled. A discharge changed prior to January 7, 1957, to 
honorable by a board established under authority of section 301, Pub. L. 
346, 78th Congress, as amended, or section 207, Pub. L. 601, 79th 
Congress, as amended (now 10 U.S.C. 1552 and 1553), will be considered 
as evidence that the discharge was not at the alien's request. (See 
Sec. 3.12.)


(Authority: 38 U.S.C. 5303(c))

    (c) Army field clerks. Included as enlisted men.
    (d) Army Nurse Corps, Navy Nurse Corps, and female dietetic and 
physical therapy personnel. (1) Army and Navy nurses (female) on active 
service under order of the service department.
    (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. Students who were enlisted men during World War 
I.
    (f) Cadets and midshipmen. See Sec. 3.6(b)(4).
    (g) Coast and Geodetic Survey, and its successor agencies, the 
Environmental Science Services Administration and the National Oceanic 
and Atmospheric Administration. See Sec. 3.6(b)(3).
    (h) Coast Guard. Active service in Coast Guard on or after January 
29, 1915, while under jurisdiction of the Treasury Department, Navy 
Department, or the Department of Transportation. (See Sec. 3.6 (c) and 
(d) as to temporary members of the Coast Guard Reserves.)
    (i) Contract surgeons. For compensation and dependency and indemnity 
compensation, if the disability or death was the result of disease or 
injury contracted in line of duty during a war period while actually 
performing the duties of assistant surgeon or acting assistant surgeon 
with any military force in the field, or in transit or in hospital.
    (j) Field clerks, Quartermaster Corps. Included as enlisted men.
    (k) Lighthouse service personnel. Transferred to the service and 
jurisdiction of War or Navy Departments by Executive order under the Act 
of August 29, 1916. Effective July 1, 1939, service was consolidated 
with the Coast Guard.
    (l) Male nurses. Persons who were enlisted men of Medical Corps.
    (m) National Guard. Members of the National Guard of the United 
States and Air National Guard of the United

[[Page 156]]

States are included as Reserves. See Sec. 3.6 (c) and (d) as to 
training duty performed by members of a State National Guard and 
paragraph (o) of this section as to disability suffered after being 
called into Federal service and before enrollment.
    (n) Persons heretofore having a pensionable or compensable status.


(Authority: 38 U.S.C. 1152, 1504)

    (o) Persons ordered to service. (1) Any person who has:
    (i) Applied for enlistment or enrollment in the active military, 
naval, or air 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. See Sec. 3.40.
    (q) Public Health Service. See Sec. 3.6 (a) and (b).
    (r) Reserves. See Sec. 3.6 (a), (b), and (c).
    (s) Revenue Cutter Service. While serving under direction of 
Secretary of the Navy in cooperation with the Navy.
    (t) Training camps. Members of training camps authorized by section 
54 of the National Defense Act, except members of Student Army Training 
Corps Camps at the Presidio of San Francisco, Plattsburg, New York, Fort 
Sheridan, Illinois, Howard University, Washington, D.C., Camp Perry, 
Ohio, and Camp Hancock, Georgia, from July 18, 1918, to September 16, 
1918.
    (u) Women's Army Corps (WAC). Service on or after July 1, 1943.
    (v) Women's Reserve of Navy, Marine Corps, and Coast Guard. Same 
benefits as members of the Officers Reserve Corps or enlisted men of the 
United States Navy, Marine Corps or Coast Guard.
    (w) Russian Railway Service Corps. Service during World War I as 
certified by the Secretary of the Army.
    (x) Active military service certified as such under section 401 of 
Pub. L. 95-202. Such service if certified by the Secretary of Defense as 
active military service and if a discharge under honorable conditions is 
issued by the Secretary. The effective dates for an award based upon 
such service shall be as provided by Sec. 3.400(z) and 38 U.S.C. 5110, 
except that in no event shall such an award be made effective earlier 
than November 23, 1977. Service in the following groups has been 
certified as active military service.
    (1) Women's Air Forces Service Pilots (WASP).
    (2) Signal Corps Female Telephone Operators Unit of World War I.
    (3) Engineer Field Clerks.
    (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 Crew on Corregidor (WWII).

[[Page 157]]

    (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 stands for 
Identification Friend or Foe.
    (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 
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.
    (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.
    (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.


(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1449)

(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1450)

[[Page 158]]


    Cross Reference: Office of Workers' Compensation Programs. See Sec. 
3.708.

[26 FR 1565, Feb. 24, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 3.7, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO Access.



Sec. 3.10  [Reserved]



Sec. 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 
includes benefits at dependency and indemnity compensation rates paid 
under 38 U.S.C. 1318.

[44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989]



Sec. 3.12  Character of discharge.

    (a) If the former service member did not die in service, pension, 
compensation, or dependency and indemnity compensation is not payable 
unless the period of service on which the claim is based was terminated 
by discharge or release under conditions other than dishonorable. (38 
U.S.C. 101(2)). A discharge under honorable conditions is binding on the 
Department of Veterans Affairs as to character of discharge.
    (b) A discharge or release from service under one of the conditions 
specified in this section is a bar to the payment of benefits unless it 
is found that the person was insane at the time of committing the 
offense causing such discharge or release or unless otherwise 
specifically provided (38 U.S.C. 5303(b)).
    (c) Benefits are not payable where the former service member was 
discharged or released under one of the following conditions:
    (1) As a conscientious objector who refused to perform military 
duty, wear the uniform, or comply with lawful order 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 Sec. 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. This bar to benefit entitlement 
does not apply if there are compelling circumstances to warrant the 
prolonged unauthorized absence. This bar applies to any person awarded 
an honorable or general discharge prior to October 8, 1977, under one of 
the programs listed in paragraph (h) of this section, and to any person 
who prior to October 8, 1977, had not otherwise established basic 
eligibility to receive Department of Veterans Affairs benefits. The term 
established basic eligibility to receive Department of Veterans Affairs 
benefits means either a Department of Veterans Affairs determination 
that an other than honorable discharge was issued under conditions other 
than dishonorable, or an upgraded honorable or general discharge issued 
prior to October 8, 1977, under criteria other than those prescribed by 
one of the programs listed in paragraph (h) of this section. However, if 
a person was discharged or released by reason of the sentence of a 
general court-martial, only a finding of insanity (paragraph (b) of this 
section) or a decision of a board of correction of records established 
under 10 U.S.C. 1552 can estalish basic eligibility to receive 
Department of Veterans Affairs benefits. The following factors will be 
considered in determining whether there are compelling circumstances to 
warrant the prolonged unauthorized absence.
    (i) Length and character of service exclusive of the period of 
prolonged AWOL. Service exclusive of the period of prolonged AWOL should 
generally be of such quality and length that it can be characterized as 
honest, faithful and meritorious and of benefit to the Nation.

[[Page 159]]

    (ii) Reasons for going AWOL. Reasons which are entitled to be given 
consideration when offered by the claimant include family emergencies or 
obligations, or similar types of obligations or duties owed to third 
parties. The reasons for going AWOL should be evaluated in terms of the 
person's age, cultural background, educational level and judgmental 
maturity. Consideration should be given to how the situation appeared to 
the person himself or herself, and not how the adjudicator might have 
reacted. Hardship or suffering incurred during overseas service, or as a 
result of combat wounds of other service-incurred or aggravated 
disability, is to be carefully and sympathetically considered in 
evaluating the person's state of mind at the time the prolonged AWOL 
period began.
    (iii) A valid legal defense exists for the absence which would have 
precluded a conviction for AWOL. Compelling circumstances could occur as 
a matter of law if the absence could not validly be charged as, or lead 
to a conviction of, an offense under the Uniform Code of Military 
Justice. For purposes of this paragraph the defense must go directly to 
the substantive issue of absence rather than to procedures, 
technicalities or formalities.
    (d) A discharge or release because of one of the offenses specified 
in this paragraph is considered to have been issued under dishonorable 
conditions.
    (1) Acceptance of an undesirable discharge to escape trial by 
general court-martial.
    (2) Mutiny or spying.
    (3) An offense involving moral turpitude. This includes, generally, 
conviction of a felony.
    (4) Willful and persistent misconduct. This includes a discharge 
under other than honorable conditions, if it is determined that it was 
issued because of willful and persistent misconduct. A discharge because 
of a minor offense will not, however, be considered willful and 
persistent misconduct if service was otherwise honest, faithful and 
meritorious.
    (5) Homosexual acts involving aggravating circumstances or other 
factors affecting the performance of duty. Examples of homosexual acts 
involving aggravating circumstances or other factors affecting the 
performance of duty include child molestation, homosexual prostitution, 
homosexual acts or conduct accompanied by assault or coercion, and 
homosexual acts or conduct taking place between service members of 
disparate rank, grade, or status when a service member has taken 
advantage of his or her superior rank, grade, or status.
    (e) An honorable discharge or discharge under honorable conditions 
issued through a board for correction of records established under 
authority of 10 U.S.C. 1552 is final and conclusive on the Department of 
Veterans Affairs. The action of the board sets aside any prior bar to 
benefits imposed under paragraph (c) or (d) of this section.
    (f) An honorable or general discharge issued prior to October 8, 
1977, under authority other than that listed in paragraphs (h) (1), (2) 
and (3) of this section by a discharge review board established under 10 
U.S.C. 1553 set aside any bar to benefits imposed under paragraph (c) or 
(d) of this section except the bar contained in paragraph (c)(2) of this 
section.
    (g) An honorable or general discharge issued on or after October 8, 
1977, by a discharge review board established under 10 U.S.C. 1553, sets 
aside a bar to benefits imposed under paragraph (d), but not paragraph 
(c), of this section provided that:
    (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 or air 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.
    (h) Unless a discharge review board established under 10 U.S.C. 1553 
determines on an individual case basis that the discharge would be 
upgraded under uniform standards meeting the requirements set forth in 
paragraph (g) of this

[[Page 160]]

section, an honorable or general discharge awarded under one of the 
following programs does not remove any bar to benefits imposed under 
this section:
    (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.


(Authority: 38 U.S.C. 5303 (e))

    (i) No overpayments shall be created as a result of payments made 
after October 8, 1977, based on an upgraded honorable or general 
discharge issued under one of the programs listed in paragraph (h) of 
this section which would not be awarded under the standards set forth in 
paragraph (g) of this section. Accounts in payment status on or after 
October 8, 1977, shall be terminated the end of the month in which it is 
determined that the original other than honorable discharge was not 
issued under conditions other than dishonorable following notice from 
the appropriate discharge review board that the discharge would not have 
been upgraded under the standards set forth in paragraph (g) of this 
section, or April 7, 1978, whichever is the earliest. Accounts in 
suspense (either before or after October 8, 1977) shall be terminated on 
the date of last payment or April 7, 1978, whichever is the earliest.
    (j) No overpayment shall be created as a result of payments made 
after October 8, 1977, in cases in which the bar contained in paragraph 
(c)(6) of this section is for application. Accounts in payment status on 
or after October 8, 1977, shall be terminated at the end of the month in 
which it is determined that compelling circumstances do not exist, or 
April 7, 1978, whichever is the earliest. Accounts in suspense (either 
before or after October 8, 1977) shall be terminated on the date of last 
payment, or April 7, 1978, whichever is the earliest.
    (k) Uncharacterized separations. Where enlisted personnel are 
administratively separated from service on the basis of proceedings 
initiated on or after October 1, 1982, the separation may be classified 
as one of the three categories of administrative separation that do not 
require characterization of service by the military department 
concerned. In such cases conditions of discharge will be determined by 
the VA as follows:
    (1) Entry level separation. Uncharacterized administrative 
separations of this type shall be considered under conditions other than 
dishonorable.
    (2) Void enlistment or induction. Uncharacterized administrative 
separations of this type shall be reviewed based on facts and 
circumstances surrounding separation, with reference to the provisions 
of Sec. 3.14 of this part, to determine whether separation was under 
conditions other than dishonorable.
    (3) Dropped from the rolls. Uncharacterized administrative 
separations of this type shall be reviewed based on facts and 
circumstances surrounding separation to determine whether separation was 
under conditions other than dishonorable.

(Authority: 38 U.S.C. 501)

    Cross References: Validity of enlistments. See Sec. 3.14. Revision 
of decisions. See Sec. 3.105. Effective dates. See Sec. 3.400(g). 
Minimum active-duty service requirement. See Sec. 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]



Sec. 3.12a  Minimum active-duty service requirement.

    (a) Definitions. (1) The term minimum period of active duty means, 
for the purposes of this section, the shorter of the following periods.
    (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 Sec. 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.

[[Page 161]]

    (2) The term benefit includes a right or privilege but does not 
include a refund of a participant's contributions under 38 U.S.C. Ch. 
32.
    (b) Effect on Department of Veterans Affairs benefits. Except as 
provided in paragraph (d) of this section, a person listed in paragraph 
(c) of this section who does not complete a minimum period of active 
duty is not eligible for any benefit under title 38, United States Code 
or under any law administered by the Department of Veterans Affairs 
based on that period of active service.
    (c) Persons included. Except as provided in paragraph (d) of this 
section, the provisions of paragraph (b) of this section apply to the 
following persons:
    (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. The provisions of paragraph (b) of this section are 
not applicable to the following cases:
    (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--(1) General. If a person is, by 
reason of this section, barred from receiving any benefits under title 
38, United States Code (or under any other law administered by the 
Department of Veterans Affairs based on a period of active duty, the 
person's dependents or survivors are also barred from receiving benefits 
based on the same period of active duty.
    (2) Exceptions. Paragraph (e)(1) of this section does not apply to 
benefits under chapters 19 and 37 of title 38, United States Code. (38 
U.S.C. 5303A)

[47 FR 24549, June 7, 1982]



Sec. 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 death pension purposes, Sec. 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

[[Page 162]]

been unconditionally discharged or released from active military, naval 
or air service when the following conditions are met:
    (1) The person served in the active military, naval or air 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]



Sec. 3.14  Validity of enlistments.

    Service is valid unless the enlistment is voided by the service 
department.
    (a) Enlistment not prohibited by statute. Where an enlistment is 
voided by the service department for reasons other than those stated in 
paragraph (b) of this section, service is valid from the date of entry 
upon active duty to the date of voidance by the service department. 
Benefits may not be paid, however, unless the discharge is held to have 
been under conditions other than dishonorable. Generally discharge for 
concealment of a physical or mental defect except incompetency or 
insanity which would have prevented enlistment will be held to be under 
dishonorable conditions.
    (b) Statutory prohibition. Where an enlistment is voided by the 
service department because the person did not have legal capacity to 
contract for a reason other than minority (as in the case of an insane 
person) or because the enlistment was prohibited by statute (a deserter 
or person convicted of a felony), benefits may not be paid based on that 
service even though a disability was incurred during such service. An 
undesirable discharge by reason of the fraudulent enlistment voids the 
enlistment from the beginning.
    (c) Misrepresentation of age. Active service which was terminated 
because of concealment of minority or misrepresentation of age is 
honorable if the veteran was released from service under conditions 
other than dishonorable. Service is valid from the date of entry upon 
active duty to the date of discharge.
    (d) Honorable discharges. Determinations as to honorable service 
will be made by the service departments and the finding shall be binding 
on the Department of Veterans Affairs, but, in the case of an alien, the 
effect of the discharge will be governed by Sec. 3.7(b).

[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962]



Sec. 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 Sec. 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 Sec. 3.6(b)(6).

[40 FR 16064, Apr. 9, 1975]



Sec. 3.16  Service pension.

    In computing the 70 or 90 days required under Sec. 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]



Sec. 3.17  Disability and death pension; Mexican border period and 
later war periods.

    In computing the 90 days' service required for pension entitlement 
(see Sec. 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

[[Page 163]]

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]



Sec. Sec. 3.18-3.19  [Reserved]



Sec. 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 death 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 death 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 death pension or 
dependency and indemnity compensation to which the surviving spouse is 
entitled. Otherwise, no payment of death 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 death 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 death 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 Sec. 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]



Sec. 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 death 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 Sec. Sec. 
3.23 and 3.24. The monthly rates and annual income limitations 
applicable to parents' dependency and indemnity compensation are set 
forth in Sec. 3.25.

    Cross References: Section 306 pension. See Sec. 3.1(u). Old-law 
pension. See Sec. 3.1(v). Improved pension. See Sec. 3.1(w).

[44 FR 45932, Aug. 6, 1979]



Sec. 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

[[Page 164]]

    (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 who died after September 30, 1999.


(Authority: 38 U.S.C. 1318(b))

    (b) For purposes of this section, ``entitled to receive'' means that 
at the time of death, the veteran had service-connected disability rated 
totally disabling by VA but was not receiving compensation because:
    (1) VA was paying the compensation to the veteran's dependents;
    (2) VA was withholding the compensation under authority of 38 U.S.C. 
5314 to offset an indebtedness of the veteran;
    (3) The veteran had applied for compensation but had not received 
total disability compensation due solely to clear and unmistakable error 
in a VA decision concerning the issue of service connection, disability 
evaluation, or effective date;
    (4) The veteran had not waived retired or retirement pay in order to 
receive compensation;
    (5) VA was withholding payments under the provisions of 10 U.S.C. 
1174(h)(2);
    (6) VA was withholding payments because the veteran's whereabouts 
was unknown, but the veteran was otherwise entitled to continued 
payments based on a total service-connected disability rating; or
    (7) 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 
(Sec. 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. If a surviving spouse or child 
eligible for benefits under paragraph (a) of this section receives any 
money or property pursuant to a judicial proceeding based upon, or a 
settlement or compromise of, any cause of action or other right of 
recovery for damages for the death of the veteran, benefits payable 
under paragraph (a) of this section shall not be paid for any month 
following the month in which such money or property is received until 
the amount of benefits that would otherwise have been payable under 
paragraph (a) of this section equals the total of the amount of money 
received and the fair market value of the property received. The 
provisions of this paragraph do not apply, however, to any portion of 
such benefits payable for any period preceding the end of the month in 
which such money or property of value is received.


(Authority: 38 U.S.C. 501)

    (f) Social security and worker's compensation. Benefits received 
under social security or worker's compensation are not subject to 
recoupment under paragraph (e) of this section even though such benefits 
may have been awarded pursuant to a judicial proceeding.
    (g) Beneficiary's duty to report. Any person entitled to benefits 
under paragraph (a) of this section shall promptly report to the 
Department of Veterans Affairs the receipt of any money or property 
received pursuant to a judicial proceeding based upon, or a settlement 
or compromise of, any cause of action or other right of recovery for 
damages for the death of the veteran. The amount to be reported is the 
total of the amount of money received and the fair market value of 
property received. Expenses incident to recovery,

[[Page 165]]

such as attorney's fees, may not be deducted from the amount to be 
reported.
    (h) Relationship to survivor benefit plan. For the purpose of 10 
U.S.C. 1448(d) and 1450(c) eligibility for benefits under paragraph (a) 
of this section shall be deemed eligibility for dependency and indemnity 
compensation under 38 U.S.C. 1311(a).

(Authority: 38 U.S.C. 1318)

    Cross References: Marriage dates. See Sec. 3.54. Homicide. See 
Sec. 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]



Sec. 3.23  Improved pension rates--Veterans and surviving spouses.

    (a) Maximum annual rates of improved pension. The maximum annual 
rates of improved pension for the following categories of beneficiaries 
shall be the amounts specified in 38 U.S.C. 1521 and 1542, as increased 
from time to time under 38 U.S.C. 5312. Each time there is an increase 
under 38 U.S.C. 5312, the actual rates will be published in the 
``Notices'' section of the Federal Register. (1) Veterans who are 
permanently and totally disabled.


(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. The maximum rates of improved pension in 
paragraph (a) of this section shall be reduced by the amount of the 
countable annual income of the veteran or surviving spouse.


(Authority: 38 U.S.C. 1521, 1541)

    (c) Mexican border period and World War I veterans. The applicable 
maximum annual rate payable to a Mexican border period or World War I 
veteran under this section shall be increased by the amount specified in 
38 U.S.C. 1521(g), as increased from time to time under 38 U.S.C 5312. 
Each time there is an increase under 38 U.S.C. 5312, the actual rate 
will be published in the ``Notices'' section of the Federal Register.


(Authority: 38 U.S.C. 1521(g))

    (d) Definitions of terms used in this section--(1) Dependent. A 
veteran's spouse or child. A veteran's spouse who resides apart from the 
veteran and is estranged from the veteran may not be considered the 
veteran's dependent unless the spouse receives reasonable support 
contributions from the veteran. (Note that under Sec. 3.60 a veteran 
and spouse who reside apart are considered to be living together unless 
they are estranged.) A child of a veteran not in custody of the veteran 
and to whose support the veteran is not reasonably contributing, may not 
be considered the veteran's dependent.


(Authority: 38 U.S.C. 1521(b))

    (2) In need of aid and attendance. As defined in Sec. 3.351(b).
    (3) Housebound. As defined in Sec. 3.351(d)(2), (f). This term also 
includes a veteran who has a disability or disabilities evaluated as 60 
percent or more disabling in addition to a permanent and totally 
disabling condition. See Sec. 3.351(d)(1).
    (4) Veteran's annual income. This term includes the veteran's annual 
income, the annual income of the veteran's dependent spouse, and the 
annual income of each child of the veteran (other than

[[Page 166]]

a child for whom increased pension is not payable under 38 U.S.C. 
1522(b)) in the veteran's custody or to whose support the veteran is 
reasonably contributing (to the extent such child's income is reasonably 
available to or for the veteran, unless in the judgment of the 
Department of Veterans Affairs to do so would work a hardship on the 
veteran.) There is a rebuttable presumption that all of such a child's 
income is reasonably available to or for the veteran.


(Authority: 38 U.S.C. 1521 (c), (h))

    (5) Surviving spouse's annual income. This term includes the 
surviving spouse's annual income and the annual income of each child of 
the veteran (other than a child for whom increased pension is not 
payable under 38 U.S.C. 1543(a)(2)) in the custody of the surviving 
spouse to the extent that such child's income is reasonably available to 
or for the surviving spouse, unless in the judgment of the Department of 
Veterans Affairs to do so would work a hardship on the surviving spouse. 
There is a rebuttable presumption that all of such a child's income is 
available to or for the surviving spouse.


(Authority: 38 U.S.C. 1541(c), (g))

    (6) Reasonable availability and hardship. For the purposes of 
paragraphs (d)(4) and (d)(5) of this section, a child's income shall be 
considered ``reasonably available'' when it can be readily applied to 
meet the veteran's or surviving spouse's expenses necessary for 
reasonable family maintenance, and ``hardship'' shall be held to exist 
when annual expenses necessary for reasonable family maintenance exceed 
the sum of countable annual income plus VA pension entitlement. Expenses 
necessary for reasonable family maintenance include expenses for basic 
necessities (such as food, clothing, shelter, etc.) and other expenses, 
determined on a case-by-case basis, which are necessary to support a 
reasonable quality of life.

(Authority: 38 U.S.C. 501)

    Cross References: Improved pension. See Sec. 3.1(w). Child. See 
Sec. 3.57(d). Definition of living with. See Sec. 3.60. Exclusions 
from income. See Sec. 3.272.

[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 
53 FR 23235, June 21, 1988]



Sec. 3.24  Improved pension rates--Surviving children.

    (a) General. The provisions of this section apply to children of a 
deceased veteran not in the custody of a surviving spouse who has basic 
eligibility to receive improved pension. Children in custody of a 
surviving spouse who has basic eligibility to receive improved pension 
do not have separate entitlement. Basic eligibility to receive improved 
pension means that the surviving spouse is in receipt of improved 
pension or could become entitled to receive improved pension except for 
the amount of the surviving spouse's countable annual income or the size 
of the surviving spouse's estate (See Sec. 3.274(c)). Under Sec. 
3.23(d)(5) the countable annual income of a surviving spouse includes 
the countable annual income of each child of the veteran in custody of 
the surviving spouse to the extent the child's income is reasonably 
available to or for the surviving spouse, unless in the judgment of the 
Department of Veterans Affairs to do so would work a hardship on the 
surviving spouse.
    (b) Child with no personal custodian or in the custody of an 
institution. In cases in which there is no personal custodian, i.e., 
there is no person who has the legal right to exercise parental control 
and responsibility for the child's welfare (See Sec. 3.57(d)), or the 
child is in the custody of an institution, pension shall be paid to the 
child at the annual rate specified in 38 U.S.C. 1542, as increased from 
time to time under 38 U.S.C. 5312, reduced by the amount of the child's 
countable annual income. Each time there is an increase under 38 U.S.C. 
5312, the actual rate will be published in the ``Notices'' section of 
the Federal Register.
    (c) Child in the custody of person legally responsible for support--
(1) Single child. Pension shall be paid to a child in the custody of a 
person legally responsible for the child's support at an annual rate 
equal to the difference between the rate for a surviving spouse

[[Page 167]]

and one child under Sec. 3.23(a)(5), and the sum of the annual income of 
such child and the annual income of such person or, the maximum annual 
pension rate under paragraph (b) of this section, whichever is less.
    (2) More than one child. Pension shall be paid to children in 
custody of a person legally responsible for the children's support at an 
annual rate equal to the difference between the rate for a surviving 
spouse and an equivalent number of children (but not including any child 
who has countable annual income equal to or greater than the maximum 
annual pension rate under paragraph (b) of this section) and the sum of 
the countable annual income of the person legally responsible for 
support and the combined countable annual income of the children (but 
not including the income of any child whose countable annual income is 
equal to or greater than the maximum annual pension rate under paragraph 
(b) of this section, or the maximum annual pension rate under paragraph 
(b) of this section times the number of eligible children, whichever is 
less).

(Authority: 38 U.S.C. 1542)

    Cross References: Child. See Sec. 3.57(d). Exclusions from income. 
See Sec. 3.272.

[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 
61 FR 20727, May 8, 1996]



Sec. 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. Except as provided in paragraph (b) of this section, 
if there is only one parent, the monthly rate specified in 38 U.S.C 
1315(b)(1), as increased from time to time under 38 U.S.C. 5312, reduced 
by $.08 for each dollar of such parent's countable annual income in 
excess of $800. No payments of DIC may be made under this paragraph, 
however, if such parent's countable annual income exceeds the amount 
specified in 38 U.S.C. 1315(b)(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 a month.
    (b) One parent who has remarried. If there is only one parent and 
the parent has remarried and is living with the parent's spouse, DIC 
shall be paid under paragraph (a) or paragraph (d) of this section, 
whichever shall result in the greater benefit being paid to the 
veteran's parent. In the case of remarriage, the total combined annual 
income of the parent and the parent's spouse shall be counted in 
determining the monthly rate of DIC.
    (c) Two parents not living together. The rate computation method in 
this paragraph applies to:
    (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 sepcified 
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 tht 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 
as provided in paragraph (f) of this section.
    (d) Two parents living together or remarried parents living with 
spouse. The rate computation method in this paragraph applies to each 
parent living with another parent and to each remarried parent when both 
parents are alive. The monthly rate of DIC paid to such parents shall be 
the rate specified in 38 U.S.C. 1315(d)(1), as increased from time to 
time under 38 U.S.C. 5312, reduced to an amount no greater than $.08 for 
each dollar of such parent's and

[[Page 168]]

spouse's combined countable annual income in excess of $1,000 except 
that no payments 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 as provided in paragraph (f) of this section.
    (e) Aid and attendance. The monthly rate of DIC payable to a parent 
under this section shall be increased by the amount specified in 38 
U.S.C. 1315(g), as increased from time to time under 38 U.S.C. 5312, if 
such parent is:
    (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. Each time there is an increase under 38 U.S.C. 
5312, the actual rates will be published in the ``Notices'' section of 
the Federal Register.

(Authority: 38 U.S.C. 501)

[52 FR 34907, Sept. 14, 1987, as amended at 61 FR 20727, May 8, 1996]



Sec. 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]



Sec. 3.27  Automatic adjustment of benefit rates.

    (a) Improved pension. Whenever there is a cost-of-living increase in 
benefit amounts payable under section 215(i) of title II of the Social 
Security Act, VA shall, effective on the dates such increases become 
effective, increase by the same percentage each maximum annual rate of 
pension.


(Authority: 38 U.S.C. 5312(a))

    (b) Parents' dependency and indemnity compensation--maximum annual 
income limitation and maximum monthly rates. Whenever there is a cost-
of-living increase in benefit amounts payable under section 215(i) of 
title II of the Social Security Act, VA shall, effective on the dates 
such increases become effective, increase by the same percentage the 
annual income limitations and the maximum monthly rates of dependency 
indemnity compensation for parents.


(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. Whenever there is a 
cost-of-living increase in benefit amounts payable under section 215(i) 
of Title II of the Social Security Act, VA shall, effective on the dates 
such increases become effective, increase by the same percentage the 
monthly allowance rates under 38 U.S.C. chapter 18.


(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)

    (d) Medal of Honor pension. Beginning in the year 2004, VA shall, 
effective December 1 of each year, increase the monthly Medal of Honor 
pension by the same percentage as the percentage by which benefit 
amounts payable under section 215(i) of Title II of the Social Security 
Act are increased effective December 1 of such year.


(Authority: 38 U.S.C. 1562(e))


[[Page 169]]


    (e) Publishing requirements. Increases in pension rates, parents' 
dependency and indemnity compensation rates and income limitation, the 
monthly allowance rates under 38 U.S.C. chapter 18 and the Medal of 
Honor pension made under this section shall be published in the 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]



Sec. 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 Sec. 3.262(b)(2))

These increases shall be published in the Federal Register at the same 
time that increases under Sec. 3.27 are published.

(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 Sec. 3.26.



Sec. 3.29  Rounding.

    (a) Annual rates. Where the computation of an increase in improved 
pension rates under Sec. Sec. 3.23 and 3.24 would otherwise result in a 
figure which includes a fraction of a dollar, the benefit rate will be 
adjusted to the next higher dollar amount. This method of computation 
will also apply to increases in old-law and section 306 pension annual 
income limitations under Sec. 3.26, including the income of a spouse 
which is excluded from a veteran's countable income, and parents' 
dependency and indemnity compensation benefit rates and annual income 
limitations under Sec. 3.25.


(Authority: 38 U.S.C. 5312(c)(2))

    (b) Monthly or other periodic pension rates. After determining the 
monthly or other periodic rate of improved pension under Sec. Sec. 
3.273 and 3.30 or the rate payable under section 306(a) of Pub. L. 95-
588 (92 Stat. 2508), the resulting rate, if not a multiple of one 
dollar, will be rounded down to the nearest whole dollar amount. The 
provisions of this paragraph apply with respect to amounts of pension 
payable for periods beginning on or after June 1, 1983, under the 
provisions of 38 U.S.C. 1521, 1541 or 1542, or under section 306(a) of 
Pub. L. 95-588.


(Authority: 38 U.S.C. 5123)

    (c) Monthly rates under 38 U.S.C. chapter 18. When increasing the 
monthly monetary allowance rates under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans, VA will round any 
resulting rate that is not an even dollar amount to the next higher 
dollar.

(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)

[48 FR 34471, July 29, 1983, as amended at 65 FR 35282, June 2, 2000; 67 
FR 49586, July 31, 2002]



Sec. 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. Payment shall be made monthly if the 
annual rate payable is $228 or more.
    (b) Improved pension--Quarterly. Payment shall be made every 3 
months on or about March 1, June 1, September l, and December 1, if the 
annual rate payable is at least $144 but less the $228.

[[Page 170]]

    (c) Improved pension--Semiannually. Payment shall be made every 6 
months on or about June 1, and December 1, if the annual rate payable is 
at least $72 but less than $144.
    (d) Improved pension--Annually. Payment shall be made annually on or 
about June 1, if the annual rate payable is less than $72.


(Authority: 38 U.S.C. 1508)

    (e) Parents' DIC--Semiannually.
    Benefits shall be paid every 6 months on or about June 1, and 
December 1, if the amount of the annual benefit is less than 4 percent 
of the maximum annual rate payable under 38 U.S.C. 1315.
    (f) Payment of less than one dollar. Payments of less than $1 shall 
not be made.

    Cross Reference: Pension. See Sec. 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]



Sec. 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, reopened, 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 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. For the purposes of this section the 
term increased award means an award which is increased because of an 
added dependent, increase in disability or disability rating, or 
reduction in income. The term also includes elections of improved 
pension under section 306 of Pub. L. 95-588 and awards pursuant to 
paragraphs 29 and 30 of the Schedule for Rating Disabilities except as 
provided in paragraph (c) of this section.
    (b) General rule of applicability. The provisions of this section 
apply to all original, reopened, or increased awards unless such awards 
provide only for continuity of entitlement with no increase in rate of 
payment.
    (c) Specific exclusions. The provisions of this section do not apply 
to the following types of awards.
    (1) Surviving spouse's rate for the month of a veteran's death (for 
exception see Sec. 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 original or 
increased 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 Sec. 3.27, or

[[Page 171]]

    (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. 1822, 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]



Sec. 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. (1) Because exchange rates for foreign 
currencies cannot be determined in advance, rates of pension and 
parents' DIC shall be projected using the most recent quarterly exchange 
rate and shall be adjusted retroactively based upon actual exchange 
rates when an annual eligibility verification report is filed.
    (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. 
Payment amounts for burial, plot or headstone allowances and claims for 
accrued benefits as reimbursement from the person who bore the expenses 
of a deceased beneficiary's last illness or burial shall be determined 
using the quarterly exchange rate for the quarter in which the expenses 
forming the basis of the claim were paid. If the claim is filed by an 
unpaid creditor, however, the quarterly rate for the quarter in which 
the veteran died shall apply. When entitlement originates during a 
quarter for which the Department of the Treasury has not yet published a 
quarterly rate, amounts due shall be calculated using the most recent 
quarterly exchange rate.

    Cross-references: Accrued benefits. See Sec. 3.1000. Accrued 
benefits payable to foreign beneficiaries. See Sec. 3.1008.

(Authority: 38 U.S.C. 501)

[55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, 1990]

                                 General



Sec. 3.40  Philippine and Insular Forces.

    (a) Regular Philippine Scouts. Service in the Philippine Scouts 
(except that described in paragraph (b) of this section), the Insular 
Force of the Navy, Samoan Native Guard, and Samoan Native Band of the 
Navy is included for pension, compensation, dependency and indemnity 
compensation, and burial allowance. Benefits are payable in dollars.
    (b) Other Philippine Scouts. Service of persons enlisted under 
section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is 
included for compensation and dependency and indemnity compensation. 
Such benefits are payable at a rate of $0.50 for each dollar authorized 
under the law. All enlistments and reenlistments of Philippine Scouts in 
the Regular Army between October 6, 1945, and June 30, 1947, inclusive 
were made under the provisions of Pub. L. 190 as it constituted the sole 
authority for such enlistments during that period. This paragraph does 
not apply to officers who were commissioned in connection with the 
administration of Pub. L. 190.


(Authority: 38 U.S.C. 107)

    (c) Commonwealth Army of the Philippines. (1) Service is included, 
for compensation, dependency and indemnity compensation, and burial 
allowance,

[[Page 172]]

from and after the dates and hours, respectively, when they were called 
into service of the Armed Forces of the United States by orders issued 
from time to time by the General Officer, U.S. Army, pursuant to the 
Military Order of the President of the United States dated July 26, 
1941. Service as a guerrilla under the circumstances outlined in 
paragraph (d) of this section is also included. Except as provided in 
Sec. Sec. 3.42 and 3.43, benefits based on service described in this 
paragraph are payable at a rate of $0.50 for each dollar authorized 
under the law.


(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. (1) Persons who served as guerrillas under a 
commissioned officer of the United States Army, Navy or Marine Corps, or 
under a commissioned officer of the Commonwealth Army recognized by and 
cooperating with the United States Forces are included. (See paragraph 
(c) of this section.) Service as a guerrilla by a member of the 
Philippine Scouts or the Armed Forces of the United States is considered 
as service in his or her regular status. (See paragraph (a) of this 
section.)
    (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 will not be accepted as 
establishing guerrilla service.
    (e) Combined service. Where a veteran who had Commonwealth Army or 
guerrilla service and also had other service, wartime or peacetime, in 
the Armed Forces of the United States, has disabilities which are 
compensable separately on a dollar and a $0.50 for each dollar 
authorized basis, and the disabilities are combined under the authority 
contained in 38 U.S.C. 1157, the evaluation for which dollars are 
payable will be first considered and the difference between this 
evaluation and the combined evaluation will be the basis for computing 
the amount payable at the rate of $0.50 for each dollar authorized.

    Cross Reference: Computation of service. See Sec. 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]



Sec. 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, That 
where there is credible evidence that he was alive after commencement of 
his or her missing-in-action status, the presumption of death will not 
apply for Department of Veterans Affairs purposes.
    (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.

[[Page 173]]

    (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 status immediately following a 
period of active duty, or a period of recognized guerrilla service or 
unrecognized guerrilla service under a recognized commissioned officer. 
In those cases where following release from active duty as set forth in 
paragraph (a) of this section, the veteran is factually found by the 
Department of Veterans Affairs to have been injured or killed by the 
Japanese because of anti-Japanese activities or his or her former 
service in the Armed Forces of the United States, such injury or death 
may be held to have been incurred in active service for Department of 
Veterans Affairs purposes. Determination shall be based on all available 
evidence, including service department reports, and consideration shall 
be given to the character and length of the veteran's former active 
service in the Armed Forces of the United States.
    (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 
will be the period certified by the service department.

[26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961. 
Redesignated at 66 FR 66767, Dec. 27, 2001]



Sec. 3.42  Compensation at the full-dollar rate for certain Filipino 
veterans residing in the United States.

    (a) Definitions. For purposes of this section:
    (1) United States (U.S.) means the states, territories and 
possessions of the United States; the District of Columbia, and the 
Commonwealth of Puerto Rico.
    (2) Residing in the U.S. means that an individual's principal, 
actual dwelling place is in the U.S. and that the individual meets the 
residency requirements of paragraph (c)(4) of this section.
    (3) Citizen of the U.S. means any individual who acquires U.S. 
citizenship through birth in the territorial U.S., birth abroad as 
provided under title 8, United States Code, or through naturalization, 
and has not renounced his or her U.S. citizenship, or had such 
citizenship cancelled, revoked, or otherwise terminated.
    (4) Lawfully admitted for permanent residence means that an 
individual has been lawfully accorded the privilege of residing 
permanently in the U.S. as an immigrant by the U.S. Immigration and 
Naturalization Service under title 8, United States Code, such status 
not having changed.
    (b) Eligibility requirements. Compensation is payable at the full-
dollar rate based on service described in Sec. 3.40(c) or (d) to a 
veteran who is residing in the United States (U.S.) and is either:
    (1) A citizen of the U.S., or
    (2) An alien lawfully admitted for permanent residence in the U.S.
    (c) Evidence of eligibility for full-dollar rate benefits. (1) A 
valid original or copy of one of the following documents is required to 
prove that that the veteran is a natural born citizen of the U.S.:
    (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. Immigration and Naturalization 
Service to VA that a veteran is a naturalized citizen of the U.S. will 
be sufficient proof of such status.
    (3) Only verification by the U.S. Immigration and Naturalization 
Service to VA that a veteran 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 if the veteran's mailing address is a Post Office box, unless 
evidence from the U.S. Postal Service shows that it does not deliver 
mail to the veteran's street address. In order to pay benefits at the 
full-dollar rate, evidence (such as a driver's license, lease agreement, 
utility bills) must establish that the veteran is residing at a valid 
street address in the U.S. and receiving mail at that address.

[[Page 174]]

    (d) Continued eligibility. (1) In order to continue receiving 
benefits at the full-dollar rate under this section, a veteran must be 
physically present in the U.S. for at least 183 days of each calendar 
year in which he or she receives payments at the full-dollar rate, and 
may not be absent from the U.S. for more than 60 consecutive days at a 
time. However, if a veteran becomes eligible for full-dollar rate 
benefits on an initial basis, on or after July 1 of any calendar year, 
the 183-day rule will not apply during that calendar year. VA will not 
consider a veteran to have been absent from the U.S. if he or she left 
and returned to the U.S. on the same date.
    (2) A veteran 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 if he or she loses either his or her U.S. citizenship or lawful 
permanent resident alien status. When a veteran no longer meets the 
eligibility requirements of paragraph (a) 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 Sec. 
3.505. If such veteran 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 meets the eligibility 
requirements in Sec. 3.42.
    (3) When requested to do so by VA, a veteran receiving benefits at 
the full-dollar rate under this section must verify that he or she 
continues to meet the residency and citizenship/permanent-resident-alien 
status requirements of paragraph (b). VA will advise the veteran 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 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 Sec. 3.652.
    (4) A veteran receiving benefits at the full-dollar rate under this 
section must promptly notify VA of any change of his or her address. If 
mail from VA to the veteran is returned to VA by the U.S. Postal 
Service, VA will reduce his or her payment to the rate of $0.50 for each 
dollar authorized under law, effective on the date determined under 
Sec. 3.505.
    (e) Effective date for restored eligibility. In the case of a 
veteran receiving benefits at the full-dollar rate, if his or her 
payments are reduced to the rate of $0.50 for each dollar authorized 
under the law, VA will resume payments at the full-dollar rate, if 
otherwise in order, effective the first day of the month following the 
date on which he or she again meets the requirements. However, such 
increased payments will be retroactive no more than one year prior to 
the date on which VA receives evidence that he or she again meets the 
requirements. If payments are reduced based on an absence from the U.S. 
of 183 or more days during a calendar year, VA will not resume payments 
at the full-dollar rate before the first day of the following calendar 
year.

(Authority: 38 U.S.C. 107, 501(a))

[66 FR 66767, Dec. 27, 2001]



Sec. 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. For purposes of this section:
    (1) United States (U.S.) means the states, territories and 
possessions of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico.
    (2) Residing in the U.S. means an individual's principal, actual 
dwelling place was in the U.S. When death occurs outside the U.S., VA 
will consider the deceased individual to have been residing in the U.S. 
on the date of death if the individual maintained his or her principal 
actual dwelling place in the U.S. until his or her most recent departure 
from the U.S., and he or she had been physically absent from the U.S. 
less than 61 consecutive days when he or she died.
    (3) Citizen of the U.S. means any individual who acquires U.S. 
citizenship through birth in the territorial U.S., birth abroad as 
provided under title 8, United States Code, or through naturalization, 
and has not renounced his or her U.S. citizenship, or had such

[[Page 175]]

citizenship cancelled, revoked, or otherwise terminated.
    (4) Lawfully admitted for permanent residence means that the 
individual was lawfully accorded the privilege of residing permanently 
in the U.S. as an immigrant by the U.S. Immigration and Naturalization 
Service, and on the date of death, still had this status.
    (b) Payment of burial benefits at the full-dollar rate. VA will pay 
burial benefits under chapter 23 of title 38, United States Code, at the 
full-dollar rate, based on service described in Sec. 3.40(c) or (d), 
when an individual who performed such service dies after November 1, 
2000, and was on the date of death:
    (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 Sec. 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. (1) In a claim for full-dollar rate 
burial payments based on the deceased veteran having been a natural born 
citizen of the U.S., a valid original or copy of one of the following 
documents is required:
    (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. Immigration and Naturalization Service to VA 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. Immigration and Naturalization Service to VA 
will be sufficient proof for purposes of eligibility for full-dollar 
rate benefits.
    (4) In a claim for burial benefits at the full-dollar rate, evidence 
(which may include, for example, a driver's license, lease agreement or 
utility bills) must establish that the deceased veteran was, on the date 
of death, residing at a valid street address in the U.S.

(Authority: 38 U.S.C. 107, 501(a))

[66 FR 66767, Dec. 27, 2001]

                              Relationship



Sec. 3.50  Spouse and surviving spouse.

    (a) Spouse. ``Spouse'' means a person of the opposite sex whose 
marriage to the veteran meets the requirements of Sec. 3.1(j).
    (b) Surviving spouse. Except as provided in Sec. 3.52, ``surviving 
spouse'' means a person of the opposite sex whose marriage to the 
veteran meets the requirements of Sec. 3.1(j) and who was the spouse of 
the veteran at the time of the veteran's death and:
    (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 Sec. 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]



Sec. 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 Sec. 3.54(d)), 
and
    (b) The claimant entered into the marriage without knowledge of the 
impediment, and

[[Page 176]]

    (c) The claimant cohabited with the veteran continuously from the 
date of marriage to the date of his or her death as outlined in Sec. 
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 Sec. 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]



Sec. 3.53  Continuous cohabitation.

    (a) General. The requirement that there must be continuous 
cohabitation from the date of marriage to the date of death of the 
veteran will be considered as having been met when the evidence shows 
that any separation was due to the misconduct of, or procured by, the 
veteran without the fault of the surviving spouse. Temporary separations 
which ordinarily occur, including those caused for the time being 
through fault of either party, will not break the continuity of the 
cohabitation.
    (b) Findings of fact. The statement of the surviving spouse as to 
the reason for the separation will be accepted in the absence of 
contradictory information. If the evidence establishes that the 
separation was by mutual consent and that the parties lived apart for 
purposes of convenience, health, business, or any other reason which did 
not show an intent on the part of the surviving spouse to desert the 
veteran, the continuity of the cohabitation will not be considered as 
having been broken. State laws will not control in determining questions 
of desertion; however, due weight will be given to findings of fact in 
court decisions made during the life of the veteran on issues 
subsequently involved in the application of this section.

[41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994]



Sec. 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. Death pension may be paid to a surviving spouse who was 
married to the veteran:
    (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. Death compensation may be paid to a surviving 
spouse who, with respect to date of marriage, could have qualified as a 
surviving spouse for death compensation under any law administered by 
the Department of Veterans Affairs in effect on December 31, 1957, or 
who was married to the veteran:
    (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. Dependency and indemnity 
compensation payable under 38 U.S.C. 1310(a) may be paid to the 
surviving spouse of a veteran who died on or after January 1, 1957, who 
was married to the veteran:

[[Page 177]]

    (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. The term child born of the marriage means a birth on 
or after the date of the marriage on which the surviving spouse's 
entitlement is predicated. The term born to them before the marriage 
means a birth prior to the date of such marriage. Either term includes a 
fetus advanced to the point of gestation required to constitute a birth 
under the law of the jurisdiction in which the fetus was delivered.
    (e) More than one marriage to veteran. For periods commencing on or 
after January 1, 1958, where a surviving spouse has been married legally 
to a veteran more than once, the date of the original marriage will be 
used in determining whether the statutory requirement as to date of 
marriage has been met.

(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]



Sec. 3.55  Reinstatement of benefits eligibility based upon terminated 
marital relationships.

    (a) Surviving spouse. (1) Remarriage of a surviving spouse shall not 
bar the furnishing of benefits to such surviving spouse if the marriage:
    (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. 1713, 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))


[[Page 178]]


    (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. 1713, 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.
    (b) Child. (1) Marriage of a child shall not bar the furnishing of 
benefits to or on account of such child, if the marriage:
    (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 Sec. Sec. 3.206 and 3.207. 
Termination of marital relationship or conduct. See Sec. 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]



Sec. 3.56  [Reserved]



Sec. 3.57  Child.

    (a) General. (1) Except as provided in paragraphs (a)(2) and (3) of 
this section, the term child of the veteran means an unmarried person 
who is a legitimate child, a child legally adopted before the age of 18 
years, a stepchild who acquired that status before the age of 18 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, or an 
illegitimate child; and
    (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 approved educational institution. 
For the purposes of this section and Sec. 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. The 
term includes schools, colleges, academies, seminaries, technical 
institutes, and universities, but does not include home-school programs.


(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 of the veteran also includes 
the following unmarried persons:
    (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.

[[Page 179]]

    (3) Subject to the provisions of paragraphs (c) and (e) of this 
section, the term child also includes a person who became permanently 
incapable of self-support before reaching the age of 18 years, who was a 
member of the veteran's household at the time he or she became 18 years 
of age, and who was adopted by the veteran, regardless of the age of 
such person at the time of adoption.


(Authority: 38 U.S.C. 101(4)(A))

    (b) Stepchild. The term means a legitimate or an illegitimate child 
of the veteran's spouse. A child of a surviving spouse whose marriage to 
the veteran is deemed valid under the provisions of Sec. 3.52, and who 
otherwise meets the requirements of this section is included.
    (c) Adopted child. Except as provided in paragraph (e) of this 
section, the term means a child adopted pursuant to a final decree of 
adoption, a child adopted pursuant to an unrescinded interlocutory 
decree of adoption while remaining in the custody of the adopting parent 
(or parents) during the interlocutory period, and a child who has been 
placed for adoption under an agreement entered into by the adopting 
parent (or parents) with any agency authorized under law to so act, 
unless and until such agreement is terminated, while the child remains 
in the custody of the adopting parent (or parents) during the period of 
placement for adoption under such agreement. The term includes, as of 
the date of death of a veteran, such a child who:
    (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. The provisions of this paragraph 
are for the purpose of determining entitlement to improved pension under 
Sec. Sec. 3.23 and 3.24.
    (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 
means a person who is under a legally imposed obligation (e.g., by 
statute or court order) to provide for the child's support, as well as a 
natural or adoptive parent who has not been divested of legal custody. 
If the child's natural or adoptive parent has remarried, the stepparent 
may also be considered a person legally responsible for the child's 
support. A child shall be considered in the joint custody of his or her 
stepparent and natural or adoptive parent so long as the natural or 
adoptive parent and the stepparent are not estranged and residing apart, 
and the natural or adoptive parent has not been divested of legal 
custody. When a child is in such joint custody the combined income of 
the natural or adoptive parent and the stepparent shall be included as 
income of the person legally responsible for support under Sec. 
3.24(c).
    (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,

[[Page 180]]

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--(1) General. The provisions of 
this paragraph are applicable to a person adopted under the laws of any 
jurisdiction other than a State. The term State is defined in 38 U.S.C. 
101(20) and also includes the Commonwealth of the Northern Mariana 
Islands. The term veteran includes, for the purposes of this paragraph, 
a Commonwealth Army veteran or new Philippine Scout as defined in 38 
U.S.C. 3566.
    (2) Adopted child of living veteran. A person residing outside any 
of the States shall not be considered to be a legally adopted child of a 
veteran during the lifetime of the veteran unless all of the following 
conditions are met.
    (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. A person shall not be 
considered to have been a legally adopted child of a veteran as of the 
date of the veteran's death and thereafter unless one of the following 
conditions is met.
    (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. In the case of an adopted child of a living 
veteran, the requirements of paragraphs (e)(2)(ii), (iii) and (iv) of 
this section are for prospective application. That is, in addition to 
meeting all of the requirements of paragraph (e)(2) of this section at 
the time of initial adjudication, benefits are not payable thereafter 
for or to a child adopted under the laws of any jurisdiction other than 
a State unless the requirements of paragraphs (e)(2)(ii), (iii) and (iv) 
of this section continue to be met. Consequently, whenever Department of 
Veterans Affairs benefits are payable to or for a child adopted under 
the laws of any jurisdiction other than a State, and the veteran who 
adopted the child is living, the beneficiary shall submit, upon 
Department of Veterans Affairs request, a report, or other evidence, to 
determine if the requirements of paragraph (e)(2)(ii), (iii), and (iv) 
of this section were met for any period for which payment was made for 
or to the child and whether such requirements will continue to be met 
for future entitlement periods. Failure to submit the requested report 
or evidence within a reasonable time from date of request may result in 
termination of benefits payable for or to the child.

(Authority: 38 U.S.C. 101(4), 501)

    Cross References: Improved pension rates. See Sec. 3.23. Improved 
pension rates; surviving children. See Sec. 3.24. Child's relationship. 
See Sec. 3.210. Helplessness. See Sec. 3.403(a)(1). Helplessness. See 
Sec. 3.503(a)(3). School attendance. See Sec. 3.667. Helpless 
children--Spanish-American and prior wars. See Sec. 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]

[[Page 181]]



Sec. 3.58  Child adopted out of family.

    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 
within the meaning of that term as defined by Sec. 3.57 and is eligible 
for benefits payable under all laws administered by the Department of 
Veterans Affairs.

    Cross Reference: Veteran's benefits not apportionable. See Sec. 
3.458.

[26 FR 1568, Feb. 24, 1961]



Sec. 3.59  Parent.

    (a) The term parent means a natural mother or father (including the 
mother of an illegitimate child or the father of an illegitimate child 
if the usual family relationship existed), mother or father through 
adoption, or a person who for a period of not less than 1 year stood in 
the relationship of a parent to a veteran at any time before his or her 
entry into active service.
    (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]



Sec. 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



Sec. 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 Compensation and Pension Service.
    (b) Authority is delegated to the Director, Compensation and Pension 
Service, and to personnel of that service designated by him 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 Sec. 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]



Sec. 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

[[Page 182]]

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]



Sec. 3.103  Procedural due process and appellate rights.

    (a) Statement of policy. Every claimant has the right to written 
notice of the decision made on his or her claim, the right to a hearing, 
and the right of representation. Proceedings before VA are ex parte in 
nature, and it is the obligation of VA to assist a claimant in 
developing the facts pertinent to the claim and to render a decision 
which grants every benefit that can be supported in law while protecting 
the interests of the Government. The provisions of this section apply to 
all claims for benefits and relief, and decisions thereon, within the 
purview of this part 3.
    (b) The right to notice--(1) General. Claimants and their 
representatives are entitled to notice of any decision made by VA 
affecting the payment of benefits or the granting of relief. Such notice 
shall clearly set forth the decision made, any applicable effective 
date, the reason(s) for the decision, the right to a hearing on any 
issue involved in the claim, the right of representation and the right, 
as well as the necessary procedures and time limits, to initiate an 
appeal of the decision.
    (2) Advance notice and opportunity for hearing. Except as otherwise 
provided in paragraph (b)(3) of this section, no award of compensation, 
pension or dependency and indemnity compensation shall be terminated, 
reduced or otherwise adversely affected unless the beneficiary has been 
notified of such adverse action and has been provided a period of 60 
days in which to submit evidence for the purpose of showing that the 
adverse action should not be taken.
    (3) Exceptions. In lieu of advance notice and opportunity for a 
hearing, VA will send a written notice to the beneficiary or his or her 
fiduciary at the same time it takes an adverse action under the 
following circumstances:
    (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 Sec. 
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 Sec. 
3.106 on renouncement).
    (v) An adverse action based upon a written statement provided to VA 
by a veteran indicating that he or she has returned to active service, 
the nature of that service, and the date of reentry into service, with 
the knowledge or notice that receipt of active service pay precludes 
concurrent receipt of VA compensation or pension (see Sec. 3.654 
regarding active service pay).
    (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. VA will restore retroactively benefits 
that were reduced, terminated, or otherwise adversely affected based on 
oral information or statements if within 30 days of the date on which VA 
issues the notification of adverse action the beneficiary or his or her 
fiduciary asserts that the adverse action was based upon information or 
statements that were inaccurate or upon information that was not 
provided by the beneficiary or his or her fiduciary. This will not 
preclude VA from taking subsequent action that adversely affects 
benefits.

[[Page 183]]

    (c) The right to a hearing. (1) Upon request, a claimant is entitled 
to a hearing at any time on any issue involved in a claim within the 
purview of part 3 of this chapter, subject to the limitations described 
in Sec. 20.1304 of this chapter with respect to hearings in claims 
which have been certified to the Board of Veterans Appeals for appellate 
review. VA will provide the place of hearing in the VA office having 
original jurisdiction over the claim or at the VA office nearest the 
claimant's home having adjudicative functions, or, subject to available 
resources and solely at the option of VA, at any other VA facility or 
federal building at which suitable hearing facilities are available. VA 
will provide one or more employees who have original determinative 
authority of such issues to conduct the hearing and be responsible for 
establishment and preservation of the hearing record. Hearings in 
connection with proposed adverse actions and appeals shall be held 
before one or more VA employees having original determinative authority 
who did not participate in the proposed action or the decision being 
appealed. All expenses incurred by the claimant in connection with the 
hearing are the responsibility of the claimant.
    (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 material 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 are expected to be 
present. The Veterans Benefits Administration will not normally schedule 
a hearing for the sole purpose of receiving argument from a 
representative. It is the responsibility of the VA employee or 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. In cases in which the nature, origin, or degree 
of disability is in issue, the claimant may request visual examination 
by a physician designated by VA and the physician's observations will be 
read into the record.


(Authority: 38 U.S.C. 501)

    (d) Submission of evidence. Any evidence whether documentary, 
testimonial, or in other form, offered by the claimant in support of a 
claim and any issue a claimant may raise and any contention or argument 
a claimant may offer with respect thereto are to be included in the 
records.
    (e) The right to representation. Subject to the provisions of 
Sec. Sec. 14.626 through 14.637 of this title, claimants are entitled 
to representation of their choice at every stage in the prosecution of a 
claim.
    (f) Notification of decisions. The claimant or beneficiary and his 
or her representative will be notified in writing of decisions affecting 
the payment of benefits or granting relief. All notifications will 
advise the claimant of the reason for the decision; the date the 
decision will be effective; the right to a hearing subject to paragraph 
(c) of this section; the right to initiate an appeal by filing a Notice 
of Disagreement which will entitle the individual to a Statement of the 
Case for assistance in perfecting an appeal; and the periods in which an 
appeal must be initiated and perfected (See part 20 of this chapter, on 
appeals). Further, any notice that VA has denied a benefit sought will 
include a summary of the evidence considered.

(Authority:38 U.S.C. 501, 1115, 1506, 5104.)

[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]

[[Page 184]]



Sec. 3.104  Finality of decisions.

    (a) A decision of a duly constituted rating agency or other agency 
of original jurisdiction shall be final and binding on all field offices 
of the Department of Veterans Affairs as to conclusions based on the 
evidence on file at the time VA issues written notification in 
accordance with 38 U.S.C. 5104. A final and binding agency decision 
shall not be subject to revision on the same factual basis except by 
duly constituted appellate authorities or except as provided in Sec. 
3.105 and Sec. 3.2600 of this part.
    (b) Current determinations of line of duty, character of discharge, 
relationship, dependency, domestic relations questions, homicide, and 
findings of fact of death or presumptions of death made in accordance 
with existing instructions, and by application of the same criteria and 
based on the same facts, by either an Adjudication activity or an 
Insurance activity are binding one upon the other in the absence of 
clear and unmistakable error.

[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]



Sec. 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 (Sec. 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 (Sec. 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) Error. Previous determinations which are final and binding, 
including decisions of service connection, degree of disability, age, 
marriage, relationship, service, dependency, line of duty, and other 
issues, will be accepted as correct in the absence of clear and 
unmistakable error. Where evidence establishes such error, the prior 
decision will be reversed or amended. For the purpose of authorizing 
benefits, the rating or other adjudicative decision which constitutes a 
reversal of a prior decision on the grounds of clear and unmistakable 
error has the same effect as if the corrected decision had been made on 
the date of the reversed decision. Except as provided in paragraphs (d) 
and (e) of this section, where an award is reduced or discontinued 
because of administrative error or error in judgment, the provisions of 
Sec. 3.500(b)(2) will apply.
    (b) Difference of opinion. Whenever an adjudicative agency is of the 
opinion that a revision or an amendment of a previous decision is 
warranted, a difference of opinion being involved rather than a clear 
and unmistakable error, the proposed revision will be recommended to 
Central Office. However, a decision may be revised under Sec. 3.2600 
without being recommended to Central Office.
    (c) Character of discharge. A determination as to character of 
discharge or line of duty which would result in discontinued entitlement 
is subject to the provisions of paragraph (d) of this section.
    (d) Severance of service connection. Subject to the limitations 
contained in Sec. Sec. 3.114 and 3.957, service connection will be 
severed only where evidence establishes that it is clearly and 
unmistakably erroneous (the burden of proof being upon the Government). 
(Where service connection is severed because of a change in or 
interpretation of a law or Department of Veterans Affairs issue, the 
provisions of Sec. 3.114 are for application.) A change in diagnosis 
may be accepted as a basis for severance action if the examining 
physician or physicians or other proper medical authority certifies 
that, in the light of all accumulated evidence, the diagnosis on which 
service connection was predicated is clearly erroneous. This 
certification must be accompanied by a summary of the facts, findings, 
and reasons supporting the conclusion. When severance of service 
connection is considered warranted, a rating proposing severance will be 
prepared setting forth all material facts and reasons. The claimant will 
be notified at

[[Page 185]]

his or her latest address of record of the contemplated action and 
furnished detailed reasons therefor and will be given 60 days for the 
presentation of additional evidence to show that service connection 
should be maintained. Unless otherwise provided in paragraph (i) of this 
section, if additional evidence is not received within that period, 
final rating action will be taken and the award will be reduced or 
discontinued, if in order, effective the last day of the month in which 
a 60-day period from the date of notice to the beneficiary of the final 
rating action expires.


(Authority: 38 U.S.C. 5112(b)(6))

    (e) Reduction in evaluation--compensation. Where the reduction in 
evaluation of a service-connected disability or employability status is 
considered warranted and the lower evaluation would result in a 
reduction or discontinuance of compensation payments currently being 
made, a rating proposing the reduction or discontinuance will be 
prepared setting forth all material facts and reasons. The beneficiary 
will be notified at his or her latest address of record of the 
contemplated action and furnished detailed reasons therefor, and will be 
given 60 days for the presentation of additional evidence to show that 
compensation payments should be continued at their present level. Unless 
otherwise provided in paragraph (i) of this section, if additional 
evidence is not received within that period, final rating action will be 
taken and the award will be reduced or discontinued effective the last 
day of the month in which a 60-day period from the date of notice to the 
beneficiary of the final rating action expires.


(Authority: 38 U.S.C. 5112(b)(6))

    (f) Reduction in evaluation--pension. Where a change in disability 
or employability warrants a reduction or discontinuance of pension 
payments currently being made, a rating proposing the reduction or 
discontinuance will be prepared setting forth all material facts and 
reasons. The beneficiary will be notified at his or her latest address 
of record of the contemplated action and furnished detailed reasons 
therefor, and will be given 60 days for the presentation of additional 
evidence to show that pension benefits should be continued at their 
present level. Unless otherwise provided in paragraph (i) of this 
section, if additional evidence is not received within that period, 
final rating action will be taken and the award will be reduced or 
discontinued effective the last day of the month in which the final 
rating action is approved.


(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. 
Where a reduction or discontinuance of a monetary allowance currently 
being paid under 38 U.S.C. chapter 18 is considered warranted, VA will 
notify the beneficiary at his or her latest address of record of the 
proposed reduction, furnish detailed reasons therefor, and allow the 
beneficiary 60 days to present additional evidence to show that the 
monetary allowance should be continued at the present level. Unless 
otherwise provided in paragraph (i) of this section, if VA does not 
receive additional evidence within that period, it will take final 
rating action and reduce the award effective the last day of the month 
following 60 days from the date of notice to the beneficiary of the 
proposed reduction.


(Authority: 38 U.S.C. 1822, 5112(b)(6))

    (h) Other reductions/discontinuances. Except as otherwise specified 
at Sec. 3.103(b)(3) of this part, where a reduction or discontinuance 
of benefits is warranted by reason of information received concerning 
income, net worth, dependency, or marital or other status, a proposal 
for the reduction or discontinuance will be prepared setting forth all 
material facts and reasons. The beneficiary will be notified at his or 
her latest address of record of the contemplated action and furnished 
detailed reasons therefor, and will be given 60 days for the 
presentation of additional evidence to show that the benefits should be 
continued at their present level. Unless otherwise provided in paragraph 
(i) of this section, if additional evidence is not received within that 
period, final adverse action

[[Page 186]]

will be taken and the award will be reduced or discontinued effective as 
specified under the provisions of Sec. Sec. 3.500 through 3.503 of this 
part.


(Authority: 38 U.S.C. 5112)

    (i) Predetermination hearings. (1) In the advance written notice 
concerning proposed actions under paragraphs (d) through (h) of this 
section, the beneficiary will be informed that he or she will have an 
opportunity for a predetermination hearing, provided that a request for 
such a hearing is received by VA within 30 days from the date of the 
notice. If a timely request is received, VA will notify the beneficiary 
in writing of the time and place of the hearing at least 10 days in 
advance of the scheduled hearing date. The 10 day advance notice may be 
waived by agreement between VA and the beneficiary or representative. 
The hearing will be conducted by VA personnel who did not participate in 
the proposed adverse action and who will bear the decision-making 
responsibility. If a predetermination hearing is timely requested, 
benefit payments shall be continued at the previously established level 
pending a final determination concerning the proposed action.
    (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 Sec. Sec. 3.500 
through 3.503 of this part.

(Authority: 38 U.S.C. 5112)

    Cross References: Effective dates. See Sec. 3.400. Reductions and 
discontinuances. See Sec. 3.500. Protection; service connection. See 
Sec. 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]



Sec. 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

[[Page 187]]

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]



Sec. 3.107  Awards where not all dependents apply.

    Except as provided in Sec. 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]



Sec. 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 formal or informal claim 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 Sec. 3.202.

[26 FR 1569, Feb. 24, 1961]



Sec. 3.109  Time limit.

    (a) Notice of time limit for filing evidence. (1) If a claimant's 
application is incomplete, the claimant will be notified of the evidence 
necessary to complete the application. If the evidence is not received 
within 1 year from the date of such notification, pension, compensation, 
or dependency and indemnity compensation may not be paid by reason of 
that application (38 U.S.C. 5103(a)). Information concerning the 
whereabouts of a person who has filed claim is not considered evidence.
    (2) The provisions of this paragraph are applicable to original 
applications, formal or informal, and 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

[[Page 188]]

to enlarge the proofs and evidence originally submitted is not so 
included.
    (b) Extension of time limit. Time limits within which claimants or 
beneficiaries are required to act to perfect a claim or challenge an 
adverse VA decision may be extended for good cause shown. Where an 
extension is requested after expiration of a time limit, the action 
required of the claimant or beneficiary must be taken concurrent with or 
prior to the filing of a request for extension of the time limit, and 
good cause must be shown as to why the required action could not have 
been taken during the original time period and could not have been taken 
sooner than it was. Denials of time limit extensions are separately 
appealable issues.

(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]



Sec. 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 referred to in paragraph 
(a) of this section shall be the date of mailing of notification to the 
claimant or beneficiary of the action required and the time limit 
therefor. The date of the letter of notification shall be considered the 
date of mailing for purposes of computing time limits. As to appeals, 
see Sec. Sec. 20.302 and 20.305 of this chapter.

(Authority: 38 U.S.C. 501)

[55 FR 13529, Apr. 11, 1990, as amended at 58 FR 32443, June 10, 1993]



Sec. 3.111  [Reserved]



Sec. 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]



Sec. 3.114  Change of law or Department of Veterans Affairs issue.

    (a) Effective date of award. Where pension, compensation, 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 is 
awarded or increased pursuant to a liberalizing law, or a liberalizing 
VA issue approved by the Secretary or by the Secretary's direction, the 
effective date of such award or increase shall be fixed in accordance 
with the facts found, but shall not be earlier than the effective date 
of the act or administrative issue. Where pension, compensation, 
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 
is awarded or increased pursuant to a liberalizing law or VA issue which 
became effective on or after the date of its enactment or issuance, in 
order for a claimant to be eligible for a retroactive payment under the 
provisions of this paragraph the evidence must show that the claimant 
met all eligibility criteria for the liberalized benefit on the 
effective date of the liberalizing law or VA issue and that such 
eligibility existed continuously from that date to the date of claim or 
administrative determination of entitlement. The provisions of this 
paragraph are applicable to original and reopened claims as well as 
claims for increase.
    (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

[[Page 189]]

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. 1822, 5110(g))

    (b) Discontinuance of benefits. Where the reduction or 
discontinuance of an award is in order because of a change in law or a 
Department of Veterans Affairs issue, or because of a change in 
interpretation of a law or Department of Veterans Affairs issue, the 
payee will be notified at his or her latest address of record of the 
contemplated action and furnished detailed reasons therefor, and will be 
given 60 days for the presentation of additional evidence. If additional 
evidence is not received within that period, the award will be reduced 
or discontinued effective the last day of the month in which the 60-day 
period expired.

(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]



Sec. 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



Sec. 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.
    (c) When disability or death is due to Department of Veterans 
Affairs hospital treatment, training, medical or surgical treatment, or 
examination, a specific application for benefits will not be initiated.

    Cross Reference: Extension of time limit. See Sec. 3.109(b).

[26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965]



Sec. 3.151  Claims for disability benefits.

    (a) General. A specific claim in the form prescribed by the 
Secretary must be filed in order for benefits to be paid to any 
individual under the laws administered by VA. (38 U.S.C. 5101(a)). A 
claim by a veteran for compensation may be considered to be a claim for 
pension; and a claim by a veteran for pension may be considered to be a 
claim for compensation. The greater benefit will be awarded, unless the 
claimant specifically elects the lesser benefit.
    (b) Retroactive disability pension claims. Where disability pension 
entitlement is established based on a claim received by VA on or after 
October 1, 1984, the pension award may not be effective prior to the 
date of receipt of the pension claim unless the veteran

[[Page 190]]

specifically claims entitlement to retroactive benefits. The claim for 
retroactivity may be filed separately or included in the claim for 
disability pension, but it must be received by VA within one year from 
the date on which the veteran became permanently and totally disabled. 
Additional requirements for entitlement to a retroactive pension award 
are contained in Sec. 3.400(b) of this part.

    Cross Reference: Informal claims. See Sec. 3.155(b).

(Authority: 38 U.S.C 5110(b)(3))

[50 FR 25981, June 24, 1985]



Sec. 3.152  Claims for death benefits.

    (a) A specific claim in the form prescribed by the Secretary (or 
jointly with the Secretary of Health and Human Services, as prescribed 
by Sec. 3.153) must be filed in order for death benefits to be paid to 
any individual under the laws administered by VA. (See Sec. 3.400(c) 
concerning effective dates of awards.)


(Authority: 38 U.S.C. 5101(a))

    (b)(1) A claim by a surviving spouse or child for compensation or 
dependency and indemnity compensation will also be considered to be a 
claim for death pension and accrued benefits, and a claim by a surviving 
spouse or child for death 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))

    (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 Sec. 3.108. Change in status of dependents. See 
Sec. 3.651.

[50 FR 25981, June 24, 1985]



Sec. 3.153  Claims filed with Social Security.

    An application on a form jointly prescribed by the Secretary and the 
Secretary of Health, Education, and Welfare 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

[[Page 191]]

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]



Sec. 3.154  Injury due to hospital treatment, etc.

    VA may accept as a claim for benefits under 38 U.S.C. 1151 and Sec. 
3.361 any communication in writing indicating an intent to file a claim 
for disability compensation or dependency and indemnity compensation 
under the laws governing entitlement to veterans' benefits for 
disability or death due to VA hospital care, medical or surgical 
treatment, examination, training and rehabilitation services, or 
compensated work therapy program, whether such communication is 
contained in a formal claim for pension, compensation, or dependency and 
indemnity compensation or in any other document.


(Authority: 38 U.S.C. 1151)

    Cross references: Effective dates. See Sec. 3.400(i). Disability or 
death due to hospitalization, etc. See Sec. Sec. 3.358, 3.361 and 
3.800.

[69 FR 46432, Aug. 3, 2004]



Sec. 3.155  Informal claims.

    (a) Any communication or action, indicating an intent to apply for 
one or more benefits under the laws administered by the Department of 
Veterans Affairs, from a claimant, his or her duly authorized 
representative, a Member of Congress, or some person acting as next 
friend of a claimant who is not sui juris may be considered an informal 
claim. Such informal claim must identify the benefit sought. Upon 
receipt of an informal claim, if a formal claim has not been filed, an 
application form will be forwarded to the claimant for execution. If 
received within 1 year from the date it was sent to the claimant, it 
will be considered filed as of the date of receipt of the informal 
claim.
    (b) A communication received from a service organization, an 
attorney, or agent may not be accepted as an informal claim if a power 
of attorney was not executed at the time the communication was written.
    (c) When a claim has been filed which meets the requirements of 
Sec. 3.151 or Sec. 3.152, an informal request for increase or 
reopening will be accepted as a claim.

    Cross References: State Department as agent of VA. See Sec. 3.108. 
Report of examination or hospitalization--as claim for increase or to 
reopen. See Sec. 3.157.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]



Sec. 3.156  New and material evidence.

    (a) A claimant may reopen a finally adjudicated claim by submitting 
new and material evidence. New evidence means existing evidence not 
previously submitted to agency decisionmakers. Material evidence means 
existing evidence that, by itself or when considered with previous 
evidence of record, relates to an unestablished fact necessary to 
substantiate the claim. New and material evidence can be neither 
cumulative nor redundant of the evidence of record at the time of the 
last prior final denial of the claim sought to be reopened, and must 
raise a reasonable possibility of substantiating the claim.


(Authority: 38 U.S.C. 501, 5103A(f), 5108)

    (b) New and material evidence received prior to the expiration of 
the appeal period, or prior to the appellate decision if a timely appeal 
has been filed (including evidence received prior to an appellate 
decision and referred to the agency of original jurisdiction by the 
Board of Veterans Appeals without consideration in that decision in 
accordance with the provisions of Sec. 20.1304(b)(1) of this chapter), 
will be considered as having been filed in connection with the claim 
which was pending at the beginning of the appeal period.


(Authority: 38 U.S.C. 501)

    (c) Where the new and material evidence consists of a supplemental 
report from the service department, received before or after the 
decision has become final, the former decision will be reconsidered by 
the adjudicating agency of original jurisdiction. This comprehends

[[Page 192]]

official service department records which presumably have been misplaced 
and have now been located and forwarded to the Department of Veterans 
Affairs. Also included are corrections by the service department of 
former errors of commission or omission in the preparation of the prior 
report or reports and identified as such. The 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.

    Cross References: Effective dates--general. See Sec. 3.400. 
Correction of military records. See Sec. 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]



Sec. 3.157  Report of examination or hospitalization as claim for 
increase or to reopen.

    (a) General. Effective date of pension or compensation benefits, if 
otherwise in order, will be the date of receipt of a claim or the date 
when entitlement arose, whichever is the later. A report of examination 
or hospitalization which meets the requirements of this section will be 
accepted as an informal claim for benefits under an existing law or for 
benefits under a liberalizing law or Department of Veterans Affairs 
issue, if the report relates to a disability which may establish 
entitlement. Acceptance of a report of examination or treatment as a 
claim for increase or to reopen is subject to the requirements of Sec. 
3.114 with respect to action on Department of Veterans Affairs 
initiative or at the request of the claimant and the payment of 
retroactive benefits from the date of the report or for a period of 1 
year prior to the date of receipt of the report.


(Authority: 38 U.S.C. 5110(a))

    (b) Claim. Once a formal claim for pension or compensation has been 
allowed or a formal claim for compensation disallowed for the reason 
that the service-connected disability is not compensable in degree, 
receipt of one of the following will be accepted as an informal claim 
for increased benefits or an informal claim to reopen. In addition, 
receipt of one of the following will be accepted as an informal claim in 
the case of a retired member of a uniformed service whose formal claim 
for pension or compensation has been disallowed because of receipt of 
retirement pay. The evidence listed will also be accepted as an informal 
claim for pension previously denied for the reason the disability was 
not permanently and totally disabling.
    (1) Report of examination or hospitalization by Department of 
Veterans Affairs or uniformed services. The date of outpatient or 
hospital examination or date of admission to a VA or uniformed services 
hospital will be accepted as the date of receipt of a claim. The date of 
a uniformed service examination which is the basis for granting 
severance pay to a former member of the Armed Forces on the temporary 
disability retired list will be accepted as the date of receipt of 
claim. The date of admission to a non-VA hospital where a veteran was 
maintained at VA expense will be accepted as the date of receipt of a 
claim, if VA maintenance was previously authorized; but if VA 
maintenance was authorized subsequent to admission, the date VA received 
notice of admission will be accepted. The provisions of this paragraph 
apply only when such reports relate to examination or treatment of a 
disability for which service-connection has previously been established 
or when a claim specifying the benefit sought is received within one 
year from the date of such examination, treatment or hospital admission.


(Authority: 38 U.S.C. 501)

    (2) Evidence from a private physician or layman. The date of receipt 
of such evidence will be accepted when the evidence furnished by or in 
behalf of the claimant is within the competence of the physician or lay 
person and shows the reasonable probability of entitlement to benefits.

[[Page 193]]

    (3) State and other institutions. When submitted by or on behalf of 
the veteran and entitlement is shown, date of receipt by the Department 
of Veterans Affairs of examination reports, clinical records, and 
transcripts of records will be accepted as the date of receipt of a 
claim if received from State, county, municipal, recognized private 
institutions, or other Government hospitals (except those described in 
paragraph (b)(1) of this section). These records must be authenticated 
by an appropriate official of the institution. Benefits will be granted 
if the records are adequate for rating purposes; otherwise findings will 
be verified by official examination. Reports received from private 
institutions not listed by the American Hospital Association must be 
certified by the Chief Medical Officer of the Department of Veterans 
Affairs or physician designee.

[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 
12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 
1987; 60 FR 27409, May 24, 1995]



Sec. 3.158  Abandoned claims.

    (a) General. Except as provided in Sec. 3.652 of this part, where 
evidence requested in connection with an original claim, a claim for 
increase or to reopen or for the purpose of determining continued 
entitlement is not furnished within 1 year after the date of request, 
the claim will be considered abandoned. After the expiration of 1 year, 
further action will not be taken unless a new claim is received. Should 
the right to benefits be finally established, pension, compensation, 
dependency and indemnity compensation, or monetary allowance under the 
provisions of 38 U.S.C. chapter 18 based on such evidence shall commence 
not earlier than the date of filing the new claim.


(Authority: 38 U.S.C. 501)

    (b) Department of Veterans Affairs examinations. Where the veteran 
fails without adequate reason to respond to an order to report for 
Department of Veterans Affairs examination within 1 year from the date 
of request and payments have been discontinued, the claim for such 
benefits will be considered abandoned.
    (c) Disappearance. Where payments of pension, compensation, 
dependency and indemnity compensation, or monetary allowance under the 
provisions of 38 U.S.C. chapter 18 have not been made or have been 
discontinued because a payee's present whereabouts is unknown, payments 
will be resumed effective the day following the date of last payment if 
entitlement is otherwise established, upon receipt of a valid current 
address.

    Cross References: Periodic certification of continued eligibility. 
See Sec. 3.652. Failure to report for VA examination. See Sec. 3.655. 
Disappearance of veteran. See Sec. 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]



Sec. 3.159  Department of Veterans Affairs assistance in developing 
claims.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Competent medical evidence means evidence provided by a person 
who is qualified through education, training, or experience to offer 
medical diagnoses, statements, or opinions. Competent medical evidence 
may also mean statements conveying sound medical principles found in 
medical treatises. It would also include statements contained in 
authoritative writings such as medical and scientific articles and 
research reports or analyses.
    (2) Competent lay evidence means any evidence not requiring that the 
proponent have specialized education, training, or experience. Lay 
evidence is competent if it is provided by a person who has knowledge of 
facts or circumstances and conveys matters that can be observed and 
described by a lay person.
    (3) Substantially complete application means an application 
containing the claimant's name; his or her relationship to the veteran, 
if applicable; sufficient service information for VA to verify the 
claimed service, if applicable; the benefit claimed and any medical 
condition(s) on which it is based; the claimant's signature; and in 
claims for nonservice-connected disability or death pension and parents' 
dependency

[[Page 194]]

and indemnity compensation, a statement of income.
    (4) For purposes of paragraph (c)(4)(i) of this section, event means 
one or more incidents associated with places, types, and circumstances 
of service giving rise to disability.
    (5) Information means non-evidentiary facts, such as the claimant's 
Social Security number or address; the name and military unit of a 
person who served with the veteran; or the name and address of a medical 
care provider who may have evidence pertinent to the claim.
    (b) VA's duty to notify claimants of necessary information or 
evidence. (1) When VA receives a complete or substantially complete 
application for benefits, it will notify the claimant of any information 
and medical or lay evidence that is necessary to substantiate the claim. 
VA will inform the claimant which information and evidence, if any, that 
the claimant is to provide to VA and which information and evidence, if 
any, that VA will attempt to obtain on behalf of the claimant. VA will 
also request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim. If VA does not receive the 
necessary information and evidence requested from the claimant within 
one year of the date of the notice, VA cannot pay or provide any 
benefits based on that application. If the claimant has not responded to 
the request within 30 days, VA may decide the claim prior to the 
expiration of the one-year period based on all the information and 
evidence contained in the file, including information and evidence it 
has obtained on behalf of the claimant and any VA medical examinations 
or medical opinions. If VA does so, however, and the claimant 
subsequently provides the information and evidence within one year of 
the date of the request, VA must readjudicate the claim.


(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))

    (c) VA's duty to assist claimants in obtaining evidence. Upon 
receipt of a substantially complete application for benefits, VA will 
make reasonable efforts to help a claimant obtain evidence necessary to 
substantiate the claim. In addition, VA will give the assistance 
described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual 
attempting to reopen a finally decided claim. VA will not pay any fees 
charged by a custodian to provide records requested.
    (1) Obtaining records not in the custody of a Federal department or 
agency. VA will make reasonable efforts to obtain relevant records not 
in the custody of a Federal department or agency, to include records 
from State or local governments, private medical care providers, current 
or former employers, and other non-Federal governmental sources. Such 
reasonable efforts will generally consist of an initial request for the 
records and, if the records are not received, at least one follow-up 
request. A follow-up request is not required if a response to the 
initial request indicates that the records sought do not exist or that a 
follow-up request for the records would be futile. If VA receives 
information showing that subsequent requests to this or another 
custodian could result in obtaining the records sought, then reasonable 
efforts will include an initial request and, if the records are not 
received, at least one follow-up request to the new source or an 
additional request to the original source.
    (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

[[Page 195]]

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. VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to military records, including service 
medical records; medical and other records from VA medical facilities; 
records from non-VA facilities providing examination or treatment at VA 
expense; and records from other Federal agencies, such as the Social 
Security Administration. VA will end its efforts to obtain records from 
a Federal department or agency only if VA concludes that the records 
sought do not exist or that further efforts to obtain those records 
would be futile. Cases in which VA may conclude that no further efforts 
are required include those in which the Federal department or agency 
advises VA that the requested records do not exist or the custodian does 
not have them.
    (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. In a claim for 
disability compensation, VA will make efforts to obtain the claimant's 
service medical records, if relevant to the claim; other relevant 
records pertaining to the claimant's active military, naval or air 
service that are held or maintained by a governmental entity; VA medical 
records or records of examination or treatment at non-VA facilities 
authorized by VA; and any other relevant records held by any Federal 
department or agency. 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.


(Authority: 38 U.S.C. 5103A(c))

    (4) Providing medical examinations or obtaining medical opinions. 
(i) In a claim for disability compensation, VA will provide a medical 
examination or obtain a medical opinion based upon a review of the 
evidence of record if VA determines it is necessary to decide the claim. 
A medical examination or medical opinion is necessary if the information 
and evidence of record does not contain sufficient competent medical 
evidence to decide the claim, but:
    (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 
Sec. 3.309, Sec. 3.313, Sec. 3.316, and Sec. 3.317 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) Paragraph (c)(4) applies to a claim to reopen a finally 
adjudicated

[[Page 196]]

claim only if new and material evidence is presented or secured.


(Authority: 38 U.S.C. 5103A(d))

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete application 
for benefits indicates that there is no reasonable possibility that any 
assistance VA would provide to the claimant would substantiate the 
claim. VA will discontinue providing assistance in obtaining evidence 
for a claim if the evidence obtained indicates that there is no 
reasonable possibility that further assistance would substantiate the 
claim. Circumstances in which VA will refrain from or discontinue 
providing assistance in obtaining evidence include, but are not limited 
to:
    (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. (1) If 
VA makes reasonable efforts to obtain relevant non-Federal records but 
is unable to obtain them, or after continued efforts to obtain Federal 
records concludes that it is reasonably certain they do not exist or 
further efforts to obtain them would be futile, VA will provide the 
claimant with oral or written notice of that fact. VA will make a record 
of any oral notice conveyed to the claimant. For non-Federal records 
requests, VA may provide the notice at the same time it makes its final 
attempt to obtain the relevant records. In either case, the notice must 
contain the following information:
    (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))

[66 FR 45630, Aug. 29, 2001]



Sec. 3.160  Status of claims.

    The following definitions are applicable to claims for pension, 
compensation, and dependency and indemnity compensation.
    (a) Informal claim. See Sec. 3.155.
    (b) Original claim. An initial formal application on a form 
prescribed by the Secretary. (See Sec. Sec. 3.151, 3.152).
    (c) Pending claim. An application, formal or informal, which has not 
been finally adjudicated.
    (d) Finally adjudicated claim. An application, formal or informal, 
which has been allowed or disallowed by the agency of original 
jurisdiction, the action having become final by the expiration of 1 year 
after the date of notice of an award or disallowance, or by denial on 
appellate review, whichever is the earlier. (See Sec. Sec. 20.1103 and 
20.1104 of this chapter.)
    (e) Reopened claim. Any application for a benefit received after 
final disallowance of an earlier claim, or any application based on 
additional evidence or a request for a personal hearing submitted more 
than 90 days following notification to the appellant of the 
certification of an appeal and

[[Page 197]]

transfer of applicable records to the Board of Veterans Appeals which 
was not considered by the Board in its decision and was referred to the 
agency of original jurisdiction for consideration as provided in Sec. 
20.1304(b)(1) of this chapter.


(Authority: 38 U.S.C. 501)

    (f) Claim for increase. Any application for an increase in rate of a 
benefit being paid under a current award, or for resumption of payments 
previously discontinued.

[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]

                          Evidence Requirements



Sec. 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 Sec. 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]



Sec. 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 Sec. 3.153.

[26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993]



Sec. 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,

[[Page 198]]

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 Sec. 
3.204 of this part.

(Authority: 38 U.S.C. 501

    Cross Reference: State Department as agent of Department of Veterans 
Affairs. See Sec. 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]



Sec. 3.203  Service records as evidence of service and character of 
discharge.

    (a) Evidence submitted by a claimant. For the purpose of 
establishing entitlement to pension, compensation, dependency and 
indemnity compensation or burial benefits the Department of Veterans 
Affairs may accept evidence of service submitted by a claimant (or sent 
directly to the Department of Veterans Affairs by the service 
department), such as a DD Form 214, Certificate of Release or Discharge 
from Active Duty, or original Certificate of Discharge, without 
verification from the appropriate service department if the evidence 
meets the following conditions:
    (1) The evidence is a document issued by the service department. A 
copy of an original document is acceptable if the copy was issued by the 
service department or if 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, if 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; 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. In addition to 
meeting the requirements of paragraph (a) of this section, a document 
submitted to establish a creditable period of wartime service for 
pension entitlement may be accepted without verification if the document 
(or other evidence of record) shows:
    (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. When the claimant does 
not submit evidence of service or the evidence submitted does not meet 
the requirements of paragraph (a) of this section (and paragraph (b) of 
this section in pension claims), the Department of Veterans Affairs 
shall request verification of service from the service department. 
However, payment of nonservice-connected burial benefits may be 
authorized, if otherwise in order, based upon evidence of service which 
VA relied upon to authorize payment of compensation or pension during 
the veteran's lifetime, provided that there is no evidence which would 
serve to create doubt as to the correctness of that service evidence. If 
it appears that a length of service requirement may not be met (e.g., 
the 90 days wartime service requirement to receive pension under 38 
U.S.C. 1521(j)), the Department of Veterans Affairs shall request a

[[Page 199]]

complete statement of service to determine if there are any periods of 
active service that are required to be excluded under Sec. 3.15.

[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]



Sec. 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 Sec. 3.216).
    (2) VA shall require the types of evidence indicated in Sec. Sec. 
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. The classes of evidence to be furnished for 
the purpose of establishing marriage, dissolution of marriage, age, 
relationship, or death, if required under the provisions of paragraph 
(a)(2), are indicated in Sec. Sec. 3.205 through 3.211 in the order of 
preference. Failure to furnish the higher class, however, does not 
preclude the acceptance of a lower class if the evidence furnished is 
sufficient to prove the point involved.
    (c) Acceptability of photocopies. Photocopies of documents necessary 
to establish birth, death, marriage or relationship under the provisions 
of Sec. Sec. 3.205 through 3.215 of this part are acceptable as 
evidence if the Department of Veterans Affairs is satisfied that the 
copies are genuine and free from alteration. Otherwise, VA may request a 
copy of the document certified over the signature and official seal of 
the person having custody of such record.

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0624.)

(Authority: 38 U.S.C. 501)

[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]



Sec. 3.205  Marriage.

    (a) Proof of marriage. Marriage is established by one of the 
following types of evidence:
    (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

[[Page 200]]

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. In the absence of conflicting information, proof 
of marriage which meets the requirements of paragraph (a) of this 
section together with the claimant's certified statement concerning the 
date, place and circumstances of dissolution of any prior marriage may 
be accepted as establishing a valid marriage, provided that such facts, 
if they were to be corroborated by record evidence, would warrant 
acceptance of the marriage as valid. Where necessary to a determination 
because of conflicting information or protest by a party having an 
interest therein, proof of termination of a prior marriage will be shown 
by proof of death, or a certified copy or a certified abstract of final 
decree of divorce or annulment specifically reciting the effects of the 
decree.
    (c) Marriages deemed valid. Where a surviving spouse has submitted 
proof of marriage in accordance with paragraph (a) of this section and 
also meets the requirements of Sec. 3.52, the claimant's signed 
statement that he or she had no knowledge of an impediment to the 
marriage to the veteran will be accepted, in the absence of information 
to the contrary, as proof of that fact.

(Authority: 38 U.S.C. 501)

    Cross References: Marriages deemed valid. See Sec. 3.52. 
Definitions; marriage. See Sec. 3.1(j). Evidence of dependents and age. 
See Sec. 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]



Sec. 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 Sec. 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 
Sec. 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 Sec. 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]



Sec. 3.207  Void or annulled marriage.

    Proof that a marriage was void or has been annulled should consist 
of:
    (a) Void. A certified statement from the claimant setting forth the 
circumstances which rendered the marriage void, together with such other 
evidence as may be required for a determination.
    (b) Annulled. A copy or abstract of the decree of annulment. A 
decree regular on its face will be accepted unless there is reason to 
question the basic authority of the court to render annulment decrees or 
there is evidence indicating that the annulment may have been obtained 
through fraud by either party or by collusion.

[[Page 201]]


    Cross References: Effective dates, void or annulled marriage. See 
Sec. 3.400 (u) and (v). Evidence of dependents and age. See Sec. 
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]



Sec. 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 Sec. 
3.209.

    Cross Reference: Evidence of dependents and age. See Sec. 3.204.

[40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987]



Sec. 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 Sec. 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]



Sec. 3.210  Child's relationship.

    (a) Legitimate child. Where it is necessary to determine the 
legitimacy of a child, evidence will be required to establish the 
legality of the marriage of the mother of the child to the veteran or to 
show that the child is otherwise legitimate by State laws together with 
evidence of birth as outlined in Sec. 3.209. Where the legitimacy of a 
child is not a factor, evidence to establish legitimacy will not be 
required: Provided, That, evidence is on file which meets the 
requirements of paragraph (b) of this section sufficient to warrant 
recognition of the relationship of the child without regard to 
legitimacy.
    (b) Illegitimate child. As to the mother of an illegitimate child, 
proof of birth

[[Page 202]]

is all that is required. As to the father, the sufficiency of evidence 
will be determined in accordance with the facts in the individual case. 
Proof of such relationship will consist of:
    (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. Except as provided in paragraph (c)(1) of this 
section evidence of relationship will include a copy of the decree of 
adoption or a copy of the adoptive placement agreement and such other 
evidence as may be necessary.
    (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, apportionee, 
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. Where application is made for an 
apportionment under Sec. 3.458(d) on behalf of a child adopted out of 
the veteran's family, the evidence must be sufficient to establish the 
veteran as the natural parent of the child.
    (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. Evidence of relationship of a stepchild will consist 
of proof of birth as outlined in Sec. 3.209, evidence of the marriage 
of the veteran to the natural parent of the child, and evidence that the 
child is a member of the veteran's household or was a member of the 
veteran's household at the date of the veteran's death.

    Cross Reference: Evidence of dependents and age. See Sec. 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]



Sec. 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

[[Page 203]]

    (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 Sec. 
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 Sec. 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]



Sec. 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 Sec. 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 Sec. 3.204.

[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 
FR 19349, May 22, 1987]



Sec. 3.213  Change of status affecting entitlement.

    (a) General. For the purpose of establishing entitlement to a higher 
rate of pension, compensation, or dependency and indemnity compensation 
based on the existence of a dependent, VA will require evidence which 
satisfies the requirements of Sec. 3.204. For the purpose of reducing 
or discontinuing such benefits, a statement by a claimant or payee 
setting forth the month and year of change of status which would result 
in a reduction or discontinuance of benefits to that person will be 
accepted, in the absence of contradictory information. This includes:
    (1) Veteran. A statement by the veteran setting forth the month and 
year of death of a spouse, child, or dependent parent.

[[Page 204]]

    (2) Surviving spouse. A statement by the surviving spouse or 
remarried surviving spouse setting forth the month and year of 
remarriage and any change of name. (An award for a child or children who 
are otherwise entitled may be made to commence the day following the 
date of discontinuance of any payments to the surviving spouse.)
    (3) Child. A statement by the veteran or surviving spouse (where an 
additional allowance is being paid to the veteran or surviving spouse 
for a child), or fiduciary, setting forth the month and year of the 
child's death, marriage, or discontinuance of school attendance. A 
similar statement by a child who is receiving payments direct will be 
accepted to establish the child's marriage or the discontinuance of 
school attendance. Where appropriate, the month and year of 
discontinuance of school attendance will be required in addition to the 
month and year of death or marriage of a child.


(Authority: 38 U.S.C. 501)

    (4) Parent. A statement by a parent setting forth the month and 
year:
    (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. If the month and year of the event is not 
reported, the award will be reduced or discontinued, whichever is 
appropriate, effective date of last payment. The payee will be requested 
to furnish within 60 days from the date of request a statement setting 
forth the date of the event. Where payments are continued at a reduced 
rate, the award will be discontinued effective date of last payment if 
the required statement is not received within the 60-day period. 
Payments on a discontinued award may be resumed, if otherwise in order, 
from the date of discontinuance if the necessary information is received 
within 1 year from the date of request; otherwise from the date of 
receipt of a new claim.
    (c) Contradictory information. Where there is reason to believe that 
the event reported may have occurred at an earlier date, formal proof 
will be required.

    Cross References: Abandoned claims. See Sec. 3.158. Change in 
status of dependents. See Sec. 3.651. Material change in income, net 
worth or change in status. See Sec. 3.660. Evidence of dependents and 
age. See Sec. 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]



Sec. 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 Sec. 3.158. Change in 
status of dependents. See Sec. 3.651. Dependency, income and estate. 
See Sec. 3.660. Evidence of dependents and age. See Sec. 3.204.

[31 FR 2782, Feb. 16, 1966, as amended at 52 FR 19349, May 22, 1987]



Sec. 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]



Sec. 3.216  Mandatory disclosure of social security numbers.

    Any person who applies for or receives any compensation or pension 
benefit as defined in Sec. Sec. 3.3, 3.4, or 3.5 of

[[Page 205]]

this part, 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. 1822, 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]



Sec. 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 Sec. Sec. 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



Sec. 3.250  Dependency of parents; compensation.

    (a) Income--(1) Conclusive dependency. Dependency of a parent (other 
than one who is residing in a foreign country) will be held to exist 
where the monthy income does not exceed:
    (i) $400 for a mother or father not living together;
    (ii) $660 for a mother and father, or remarried parent and spouse, 
living together:

[[Page 206]]

    (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. Where the income exceeds the monthly amounts 
stated in paragraph (a)(1) of this section dependency will be determined 
on the facts in the individual case under the principles outlined in 
paragraph (b) of this section. In such cases, dependency will not be 
held to exist if it is reasonable that some part of the corpus of the 
claimant's estate be consumed for his or her maintenance.
    (3) Foreign residents. There is no conclusive presumption of 
dependency. Dependency will be determined on the facts in the individual 
case under the principles outlined in this section.
    (b) Basic rule. Dependency will be held to exist if the father or 
mother of the veteran does not have an income sufficient to provide 
reasonable maintenance for such father or mother and members of his or 
her family under legal age and for dependent adult members of the family 
if the dependency of such adult member results from mental or physical 
incapacity.
    (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. The fact that the veteran has made 
habitual contributions to the father or mother, or both, is not 
conclusive evidence that dependency existed but will be considered in 
connection with all other evidence. In death claims, it is not material 
whether dependency arose prior or subsequent to the veteran's death. 
(See Sec. 3.1000(d)(3) as to accrued.)


(Authority: 38 U.S.C. 102(a))

    (d) Remarriage. Dependency will not be denied solely because of 
remarriage (38 U.S.C. 102(b)(1)). Compensation may be continued if the 
parent submits evidence to show that dependency exists, considering the 
combined income and expenses of the parent and spouse.

[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]



Sec. 3.251  Income of parents; dependency and indemnity compensation.

    (a) Annual income limitations and rates. (1) Dependency and 
indemnity compensation is not payable to a parent or parents whose 
annual income exceeds the limitations set forth in 38 U.S.C. 1315 (b), 
(c), or (d).
    (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 Sec. 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

[[Page 207]]

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. Payments of any kind or from any source will be 
counted as income unless specifically excluded. Income will be counted 
for the calendar year in which it is received and total income for the 
full calendar year will be considered except as provided in Sec. 3.260.

[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]



Sec. 3.252  Annual income; pension; Mexican border period and later 
war periods.

    (a) Annual income limitations; old-law pension. Where the right to 
old-law pension is payable under section 306(b) of Pub. L. 95-588 (92 
Stat. 2497), pension is not payable if the pensioner's annual income 
exceeds the income limitations prescribed by Sec. 3.26(c).
    (b) Annual income and net worth limitations; Pub. L. 86-211. Pension 
is not payable to a veteran, surviving spouse or child whose annual 
income exceeds the limitations set forth in 38 U.S.C. 1521, 1541 or 
1542; or to a veteran, surviving spouse or child if it is reasonable 
that some part of the claimant's estate be consumed for his or her 
maintenance. Where a veteran and spouse are living together, the 
separate income of the spouse will be considered as the veteran's income 
as provided in Sec. 3.262(b).


(Authority: 38 U.S.C. 1543)

    (c) Basic rule. Payments of any kind or from any source will be 
counted as income unless specifically excluded. Income will be counted 
for the calendar year in which it is received and total income for the 
full calendar year will be considered except as provided in Sec. 3.260.
    (d) Veteran with a spouse. For the purpose of determining 
eligibility under paragraph (b) of this section the pension rates 
provided by 38 U.S.C. 1521(c) may be authorized for a married veteran if 
he or she is living with or, if estranged, is reasonably contributing to 
the support of his or her spouse. The determination of ``reasonable'' 
contribution will be based on all the circumstances in the case, 
considering the income and estate of the veteran and the separate income 
and estate of the spouse. Apportionment of the veteran's pension under 
Sec. 3.451 meets the requirement of reasonable contribution.
    (e) Surviving spouse with a child--(1) Child. The term ``child'' 
means a child as defined in Sec. 3.57. Where a veteran's child is born 
after the veteran dies, the surviving spouse will not be considered a 
surviving spouse with a child prior to the child's date of birth.
    (2) Veteran's child not in surviving spouse's custody. Where the 
veteran was survived by a surviving spouse and by a child, the income 
increments for a surviving spouse and child apply even though the child 
is not the child of the surviving spouse and not in his or her custody.
    (3) Income of child. The separate income received by a child or 
children, regardless of custody, will not be considered in computing the 
surviving spouse's income. Where the separate income of the child is 
turned over to the surviving spouse, only so much of the money as is 
left after deducting any expenses for maintenance of the child will be 
considered the surviving spouse's income.
    (4) Alternative rate. Whenever the monthly pension rate payable to 
the surviving spouse under the formula in 38 U.S.C. 1541(c) is less than 
the rate payable for one child under section 1542 if the surviving 
spouse were not entitled, the surviving spouse will be paid the child's 
rate.
    (f) Income over maximum; reduced aid and attendance allowance. 
Beginning January 1, 1977, veterans in need of regular aid and 
attendance who are not receiving pension because their income exceeds 
the applicable statutory limitation may be eligible for a reduced aid 
and attendance allowance. The amount payable is the regular aid and 
attendance allowance authorized by 38 U.S.C. 1521(d)(1) reduced by 16.6 
percent for each $100, or portion thereof, by which the veteran's annual 
income exceeds

[[Page 208]]

the applicable maximum income limitation. The reduced aid and attendance 
allowance is payable when:
    (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 Sec. 3.314. 
Determination of permanent need for regular aid and attendance and 
``permanently bedridden''. See Sec. 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]



Sec. Sec. 3.253-3.255  [Reserved]



Sec. 3.256  Eligibility reporting requirements.

    (a) Obligation to report changes in factors affecting entitlement. 
Any individual who has applied for or receives pension or parents' 
dependency and indemnity compensation must promptly notify the Secretary 
of any change affecting entitlement in any of the following:
    (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. (1) For purposes of this 
section the term eligibility verification report means a form prescribed 
by the Secretary that is used to request income, net worth (if 
applicable), dependency status, and any other information necessary to 
determine or verify entitlement to pension or parents' dependency and 
indemnity compensation.
    (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) 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 Sec. Sec. 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.

(The Office of Management and Budget has approved the information 
collection requirements in this section under control numbers 2900-0101 
and 2900-0624.)

(Authority: Sec. 306(a)(2) and (b)(3), Pub. L. 95-588, 92 Stat. 2508-
2509; 38 U.S.C. 1315(e))

[63 FR 53595, Oct. 6, 1998, as amended at 66 FR 56614, Nov. 9, 2001]



Sec. 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

[[Page 209]]

the child or children as if there were no surviving spouse.

[62 FR 5529, Feb. 6, 1997]



Sec. Sec. 3.258-3.259  [Reserved]



Sec. 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. Income will be determined by the total amount 
received or anticipated during the calendar year.
    (b) Deferred determinations. Where there is doubt as to the amount 
of the anticipated income, pension or dependency and indemnity 
compensation will be allowed at the lowest appropriate rate or will be 
withheld, as may be in order, until the end of the calendar year when 
the total income received during the year may be determined.
    (c) Proportionate income limitations; excess income. A proportionate 
income limitation will be established under the conditions set forth in 
paragraph (d) of this section except where application of a 
proportionate income limitation would result in payment of a lower rate 
than would be payable on the basis of income for the full calendar year.
    (d) Proportionate income limitations; computation. Income 
limitations will be computed proportionately for the purpose of 
determining initial entitlement, or for resuming payments on an award 
which was discontinued for a reason other than excess income or a change 
in marital or dependency status. A proportionate income limitation will 
be established for the period from the date of entitlement to the end of 
that calendar year. The total amount of income received by the claimant 
during that period will govern the payment of benefits. Income received 
prior to the date of entitlement will be disregarded.
    (e) Proportionate income limitations; spouse. In determining whether 
proportionate computation is applicable to a claim under Pub. L. 86-211 
(73 Stat. 432), the total income for the calendar year of entitlement of 
both veteran and that of the spouse available for use of the veteran 
will be considered. If a proportionate income limitation is then 
applicable, it will be applied to both the veteran's and the spouse's 
income. The spouse's income will not be included, however, where his or 
her total income for the calendar year does not exceed $1,200.
    (f) Rate changes. In years after that for which entitlement to 
pension or dependency and indemnity compensation has been established or 
reestablished as provided in paragraph (d) of this section, total income 
for the calendar year will govern the payment of benefits. Where there 
is a change in the conditions of entitlement because of a change in 
marital or dependency status, entitlement for each period will be 
determined separately. For the period when the claimant was married or 
had a dependent, the rate payable will be determined under the annual 
income limitation or increment applicable to a claimant who is married 
or has a dependent. For the period when the claimant was unmarried or 
without a dependent, the rate payable will be determined under the 
annual income limitation or increment applicable to a claimant who is 
not married or has no dependent. Since these determinations will be 
based on total income for the calendar year, it is not material whether 
such income was received before or after the change of status.
    (g) Fractions of dollars. In computing a claimant's annual income a 
fraction of a dollar will be disregarded for the purpose of determining 
entitlement to monthly payments of pension and dependency and indemnity 
compensation.

(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]



Sec. 3.261  Character of income; exclusions and estates.

    The following factors will be considered in determining whether a 
claimant meets the requirements of Sec. Sec. 3.250, 3.251 and 3.252 
with reference to dependency, income limitations and corpus of estate:
    (a) Income.

[[Page 210]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Dependency and         Pension; old-law     Pension; section 306
               Income                 Dependency (parents)   indemnity compensation   (veterans, surviving   (veterans, surviving          See--
                                                                    (parents)        spouses and children)  spouses and children)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Total income from employment,    Included..............  Included..............  Included.............  Included.............  Sec. 3.262(a).
 business, investments, or rents.
(2) Income of spouse...............  ......do..............  ......do..............  Excluded.............  ......do.............  Sec. 3.262(b).
(3) Earnings of members of family    ......do..............  Excluded..............  ......do.............  Excluded.............  Sec. 3.250(b)(2).
 under legal age.                                                                                                                  Sec. 3.252(e)(3).
(4) Earned income of child-claimant  ......................  ......................  Included.............  ......do.............
(5) Gifts, including contributions
 from adult members of family:
  Property.........................  ......do..............  Included..............  ......do.............  ......do.............  Sec. 3.262(k).
  Money............................  ......do..............  ......do..............  ......do.............  Included.............
(6) Value of maintenance by          Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(c).
 relative, friend, or organization.
(7) Rental value of property owned   ......do..............  ......do..............  ......do.............  ......do.............
 by and resided in by claimant.
(8) Charitable donations...........  ......do..............  ......do..............  Included.............  ......do.............  Sec. 3.262(d).
(9) Family allowance authorized by   Included..............  Included..............  ......do.............  Included.............
 service personnel.
(10) Reasonable value of allowances  ......do..............  ......do..............  ......do.............  Included except as
 to person in service in addition                                                                            earned income of
 to base pay.                                                                                                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  Excluded..............  Excluded..............  Excluded.............  Excluded.............
 paid by any State based on service
 in Armed Forces of United States.
(14) Retired Serviceman's Family
 Protection Plan; Survivor Benefit
 Plan (10 U.S.C. ch. 73):
  Retired Serviceman's Family
   Protection Plan (Subch. I):
    Annuities......................  ......do..............  ......do..............  ......do.............  ......do.............
    Refund (10 U.S.C. 1446)........  Included..............  Included..............  Included.............  Included.............
  Survivor Benefit Plan (Subch. II)  ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(e).
   (Pub. L. 92-425; 86 Stat. 706).
Annuity under Sec. 653, Pub. L.    Included..............  Included..............  Excluded.............  Excluded.............  Sec. 3.262(r)
 100-456.
(15) Retirement pay received direct  Included..............  Included..............  Included.............  Included.............  Sec. 3.262(e).
 from service department.            ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(h).
(16) Retirement benefits; general..  ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(e).
(17) Social security benefits:
  Old age and survivors', and        Included..............  Included..............  Included.............  Included.............  Sec. 3.262(f).
   disability insurance.
    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--   Included.............  Sec. 3.262(g).
                                                                                      Excluded Death
                                                                                      pension--Included.
(19) Retirement pay waived under     Excluded..............  Excluded..............  Excluded.............  ......do.............  Sec. 3.262(h).
 Federal statute.
(20) Department of Veterans Affairs
 payments:
  Pension..........................  Excluded..............  Excluded..............  Excluded.............  Excluded.............
  Compensation and dependency and    ......do..............  ......do..............  ......do.............  ......do.............
   indemnity compensation.
  World War I adjusted compensation  ......do..............  Included..............  ......do.............  Included.............
  U.S. Government life insurance or  Excluded..............  Excluded..............  Excluded.............  Excluded.............
   national service life insurance
   for disability or death,
   maturity of endowment policies,
   and dividends, including special
   and termination dividends.
  Servicemembers' group life         ......do..............  ......do..............  ......do.............  ......do.............
   insurance.
  Veterans' group life insurance...  ......do..............  ......do..............  ......do.............  ......do.............
  Servicemembers' indemnity........  ......do..............  ......do..............  ......do.............  ......do.............
  Subsistence allowance (38 U.S.C.   Included..............  Included..............  Included.............  Included.............
   ch. 31).

[[Page 211]]

 
  Veterans educational assistance    ......do..............  ......do..............  ......do.............  ......do.............
   in excess of amounts expended
   for training (38 U.S.C. ch. 34).
  Educational assistance (38 U.S.C.  ......................  ......................  Excluded.............  Excluded.............
   ch. 35).
  Special allowance under 38 U.S.C.  Excluded..............  Included..............  ......do.............  Included.............
   1312(a).
  Statutory burial allowance.......  ......do..............  Excluded..............  ......do.............  Excluded.............
  Accrued..........................  ......do..............  Included, except        ......do.............  Included, except
                                                              accrued as                                     accrued as
                                                              reimbursement.                                 reimbursement.
(21) Compensation (civilian) for     Included..............  Included..............  Included.............  Included.............  Sec. 3.262(i).
 injury or death.
(22) Contributions by a public or
 private employer to a:
  Public or private health or        Excluded..............  Excluded..............  Excluded.............  Excluded.............
   hospitalization plan for an
   active or retired employee.
  Retired employee as reimbursement  Included..............  Included..............  Excluded.............  Excluded.............
   for premiums for supplementary
   medical insurance benefits under
   the Social Security Program
   (Pub. L. 91-588; 84 Stat. 1580).
(23) Overtime pay; Government        Included..............  Included..............  Disability pension--   Included.............
 employees.                                                                           Excluded. Death
                                                                                      pension--Included.
(24) Commercial life insurance;      Included (as received)  Included (as received)  Included (special      Included (as           Sec. 3.262(j).
 disability, accident, or health                                                      provision).            received).
 insurance, less payments of
 medical or hospital expenses
 resulting from the accident or
 disease for which payments are
 made.
(25) Commercial annuities or         ......do..............  Included (special       ......do.............  Included (special      Sec. 3.262(j).
 endowments.                                                  provision).                                    provision).
(26) Dividends from commercial       Excluded..............  Excluded..............  Excluded.............  Excluded.............
 insurance.
(27) Insurance under Merchant        Included..............  Included..............  Included.............  Included.............
 Marine Act of 1936, as amended.
(28) Reimbursement for casualty      Included..............  Excluded..............  Included.............  Included.............  Sec. 3.262(t)
 loss (Pub. L. 100-687).
Other fire Insurance...............  Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(t)
(29) Bequests, devises and
 inheritances:
  Property.........................  Included..............  Excluded..............  Included.............  ......do.............  Sec. 3.262(k).
  Money............................  ......do..............  Included..............  ......do.............  Included.............
  Joint bank accounts..............  ......do..............  ......do..............  ......do.............  Excluded.............  Sec. 3.262(k)(1).
(30) Profit from sale of property..  Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(k).
(31) Jury duty or obligatory civic   ......do..............  ......do..............  ......do.............  ......do.............
 duties.
(32) Relocation payments (Pub. L.    ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(c).
 90-448; Pub. L. 90-495).
(33) The following programs
 administered by the ACTION Agency:
  Foster Grandparent Program and     ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(q)(1).
   Older Americans Community
   Service Programs payments (Pub.
   L. 93-29; 87 Stat. 55).
  Volunteers in Service to America   ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(q)(2).
   (VISTA), University Year for
   ACTION (UYA), Program for Local
   Services (PLS), ACTION
   Cooperative Volunteers (ACV),
   Foster Grandparent Program
   (FGP), and Older American
   Community Service Programs,
   Retired Senior Volunteer Program
   (RSVP), Senior Companion Program
   (Pub. L. 93-113; 87 Stat. 394).

[[Page 212]]

 
(34) The Service Corps of Retired    ......do..............  ......do..............  ......do.............  ......do.............  Sec. 3.262(q)(2).
 Executives (SCORE) and Active
 Corps of Executives (ACE)
 administered by the Small Business
 Administration. (Pub. L. 93-113;
 87 Stat. 394).
(35) Agent Orange settlement         Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(s)
 payments (Pub. L. 101-201).
(36) Restitution to individuals of   Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(u)
 Japanese ancestry (Pub. L. 100-
 383).
(37) Income received by American     Excluded..............  Excluded..............  Excluded.............  Excluded.............  3.262(v)
 Indian beneficiaries from Trust or
 Restricted lands (Pub. L. 103-66).
(38) Income received under Section   Excluded..............  Excluded..............  Included.............  Included.............  3.262(w)
 6 of the Radiation Exposure
 Compensation Act (Pub. L. 101-426).
(39) Cash, stock, land or other      Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(x)
 interests received from a Native
 Corporation under the Alaska
 Native Claims Settlement Act (43
 U.S.C. 1601 et seq.).
(40) Monetary allowance under 38     Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262(y)
 U.S.C. chapter 18 for certain
 individuals who are children of
 Vietnam veterans (38 U.S.C.
 1823(c)).
(41) Income received under the       Excluded \1\..........  Excluded \1\..........  Excluded \1\.........  Excluded \1\.........  Sec. 3.262(z)
 Victims of Crime Act of 1984 (42
 U.S.C. 10601-10605)..
(42) Income received under the       Excluded..............  Excluded..............  Excluded.............  Excluded.............  Sec. 3.262 (aa)
 Medicare prescription drug
 discount card and transitional
 assistance program (42 U.S.C.
 1395w-141(g)(6)).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The compensation received through a crime victim compensation program will be excluded from income computations unless the total amount of
  assistance received from all federally funded programs is sufficient to fully compensate the claimant for losses suffered as a result of the crime.

    (b) Deduction of amounts paid by claimant.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Pension; old-law     Pension; section 306
                                                                 Dependency and       (veterans, surviving   (veterans, surviving
             Deduction                Dependency (parents)   indemnity compensation       spouses, and           spouses, and               See
                                                                                           children)              children)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Unusual medical expenses.......  Not authorized........  Authorized............  Not authorized.......  Authorized...........  Sec. Sec.
                                                                                                                                    3.262(b)(1) and (1).
(2) Veteran: just debts, expenses    Not authorized........  Authorized, except      Not authorized.......  Authorized...........  Sec. Sec. 3.262(m)
 of last illness and burial.                                  debts.                                                                and (o).
(3) Veteran's spouse or child:       Not authorized........  Not authorized........  Not authorized.......  Authorized...........  Sec. 3.262(n).
 expenses of last illness and
 burial.
(4) Parent's spouse: just debts;     Not authorized........  Authorized............  .....................  .....................  Sec. 3.262(o).
 expenses of last illness and
 burial.
(5) Prepayment on real property      Not authorized........  Not authorized........  Not authorized.......  Authorized...........  Sec. Sec.
 mortgages after death of spouse                                                                                                    3.262(k)(6).
 (Pub. L. 91-588).
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (c) Corpus of estate.

[[Page 213]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Pension; section 306
                                                                 Dependency and         Pension; old-law     (veterans, surviving
                                      Dependency (parents)   indemnity compensation    (veterans, widows,        spouses, and               See
                                                                                         and children)            children)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                     Considered              Not considered........  Not considered.......  Considered...........  Sec. 3.263.
                                      conditionally........
--------------------------------------------------------------------------------------------------------------------------------------------------------


[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]



Sec. 3.262  Evaluation of income.

    (a) Total income. All income from sources such as wages, salaries, 
earnings, bonuses from employers, income from a business or profession 
or from investments or rents as well as the fair value of personal 
services, goods or room and board received in lieu thereof will be 
included.
    (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. Income of the spouse will be determined under 
the rules applicable to income of the claimant.
    (1) Parents. Where the mother and father, or remarried parent and 
spouse are living together, the total combined income will be considered 
in determining dependency, or in determining the rate of dependency and 
indemnity compensation payable to the parent. This rule is equally 
applicable where both parents have remarried and each is living with his 
or her spouse. If the remarriage of a parent has been terminated, or the 
parent is separated from his or her spouse, income of the spouse will be 
excluded.
    (2) Veterans. The separate income of the spouse of a disabled 
veteran who is entitled to pension under laws in effect on June 30, 
1960, will not be considered. Where pension is payable under section 
306(a) of Pub. L. 95-588, to a veteran who is living with a spouse there 
will be included as income of the veteran all income of the spouse in 
excess of whichever is the greater, the amount of the spouse income 
exclusion specified in section 306(a)(2)(B) of Pub. L. 95-588 as 
increased from time to time under section 306 (a)(3) of Pub. L. 95-588 
or the total earned income of the spouse, which is reasonably available 
to or for the veteran, unless hardship to the veteran would result. Each 
time there is an increase in the spouse income exclusion pursuant to 
section 306(a)(3) of Pub. L. 95-588, the actual amount of the exclusion 
will be published in the ``Notices'' section of the Federal Register. 
The presumption that inclusion of such income is available to the 
veteran and would not work a hardship on him or her may be rebutted by 
evidence of unavailability or of expenses beyond the usual family 
requirements.


(Authority: 38 U.S.C. 1521(f); sec. 306(a)(2)(B) of Pub. L. 95-588)

    (c) Maintenance. The value of maintenance furnished by a relative, 
friend, or

[[Page 214]]

a charitable organization (civic or governmental) will not be considered 
income. Where the claimant is maintained in a rest home or other 
community institution or facility, public or private, because of 
impaired health or advanced age, money paid to the home or to the 
claimant to cover the cost of maintenance will not be considered income, 
regardless of whether it is furnished by a relative, friend or 
charitable organization. The expense of maintenance is not deductible if 
it is paid from the claimant's income, except as provided in paragraph 
(l) of this section in claims for dependency and indemnity compensation.
    (d) Charitable donations. Charitable donations from public or 
private relief or welfare organizations will not be considered income 
except in claims for pension under laws in effect on June 30, 1960. In 
the latter cases, additional charitable allowances received by a 
claimant for members of his or her family may not be divided per capita 
in determining the amount of the claimant's income.
    (e) Retirement benefits; general. Retirement benefits, including an 
annuity or endowment, paid under a Federal, State, municipal, or private 
business or industrial plan are considered income as limited by this 
paragraph. Where the payments received consist of part principal and 
part interest, interest will not be counted separately.
    (1) Protected pension. Except as provided in this paragraph (e)(1), 
effective January 1, 1965, in determining income for pension purposes 
under laws in effect on June 30, 1960, 10 percent of the retirement 
payments received by a veteran, surviving spouse, or child will be 
excluded. The remaining 90 percent will be considered income as 
received. Where the retirement benefit is based on the claimant's own 
employment, payments will not be considered income until the amount of 
the claimant's personal contribution (as distinguished from amounts 
contributed by the employer) has been received. Thereafter the 10 
percent exclusion will apply.
    (2) Pension; Pub. L. 86-211. Except as provided in this 
subparagraph, effective January 1, 1965, in determining income for 
pension purposes, under Pub. L. 86-211 (73 Stat. 432), 10 percent of the 
retirement payments received by a veteran, the veteran's spouse, 
surviving spouse, or child will be excluded. The remaining 90 percent 
will be considered income as received. Where a person was receiving or 
entitled to receive pension and retirement benefits based on his or her 
own employment on December 31, 1964, the retirement payments will not be 
considered income until the amount of the claimant personal contribution 
(as distinguished from amounts contributed by the employer) has been 
received. Thereafter the 10 percent exclusion will apply.
    (3) Compensation. In determining dependency of a parent for 
compensation purposes, all payments will be considered income as 
received.
    (4) Dependency and indemnity compensation. Except as provided in 
this subparagraph, effective January 1, 1967, in determining income for 
dependency and indemnity compensation purposes, 10 percent of the 
retirement payments received by a deceased veteran's parent or by the 
parent's spouse will be excluded. The remaining 90 percent will be 
considered income as received. Where a parent was receiving or entitled 
to receive dependency and indemnity compensation and retirement benefits 
based on his or her own employment on December 31, 1966, the retirement 
payments will not be considered income until the amount of the 
claimant's personal contribution (as distinguished from amounts 
contributed by the employer) has been received. Thereafter the 10 
percent exclusion will apply.


(Authority: 38 U.S.C. 1315(g), 1503(a)(6))

    (f) Social security benefits. Old age and survivor's insurance and 
disability insurance under title II of the Social Security Act will be 
considered income as a retirement benefit under the rules contained in 
paragraph (e) of this section. Benefits received under noncontributory 
programs, such as old age assistance, aid to dependent children, and 
supplemental security income are subject to the rules contained in 
paragraph (d) of this section applicable to charitable donations. The 
lumpsum death payment under title II of the Social Security Act will be 
considered as

[[Page 215]]

income except in claims for dependency and indemnity compensation and 
for pension under Pub. L. 86-211 (73 Stat. 432).
    (g) Railroad retirement benefits--(1) Parents, surviving spouses and 
children. Retirement benefits received from the Railroad Retirement 
Board will be considered as income under the rules contained in 
paragraph (e) of this section. (See paragraph (h) of this section as to 
waivers.)
    (2) Veterans. Effective July 1, 1959, retirement benefits received 
from the Railroad Retirement Board were excluded from consideration as 
income in determining eligibility for disability pension. (45 U.S.C. 
228s-1) This exclusion continues to be applicable to claims under laws 
in effect on June 30, 1960. For purposes of section 306 pension, such 
retirement benefits will be considered as income under the rules 
contained in paragraph (e) of this section.
    (h) Retirement benefits waived. Except as provided in this 
paragraph, retirement benefits (pension or retirement payments) which 
have been waived will be included as income. For the purpose of 
determining dependency of a parent, or eligibility of a parent for 
dependency and indemnity compensation or eligibility of a veteran, 
surviving spouse, or child for pension under laws in effect on June 30, 
1960, retirement benefits from the following sources which have been 
waived pursuant to Federal statute will not be considered as income:
    (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. (1) Compensation 
paid by the Bureau of Employees' Compensation, Department of Labor (of 
the United States), or by Social Security Administration, or by Railroad 
Retirement Board, or pursuant to any workmen's compensation or 
employer's liability statute, or damages collected because of personal 
injury or death, less medical, legal, or other expenses incident to the 
injury or death, or the collection or recovery of such moneys will be 
considered income as received, except as provided in paragraph (i)(2) of 
this section. The criteria of paragraph (i)(1) of this section are for 
application as to all medical expenditures after such award or 
settlement.


(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--(1) Annuity or endowment insurance. For 
pension, effective January 1, 1965, or for dependency and indemnity 
compensation, effective January 1, 1967, the provisions of paragraph (e) 
of this section apply. In such cases, 10 percent of the payments 
received will be excluded. In dependency and indemnity compensation 
claims, where the parent is receiving or entitled to receive dependency 
and indemnity compensation on December 31, 1966, and is also receiving 
or entitled to receive annuity payments on that date, or endowment 
insurance matures on or before that date, no part of the payments 
received will be considered income until the full amount of the 
consideration has been received, after which 10 percent of the amount 
received will be excluded. For compensation, the full amount of each 
payment is considered income as received.
    (2) Life insurance; general. In determining dependency, or 
eligibility for dependency and indemnity compensation, or for section 
306 pension the full

[[Page 216]]

amount of payments is considered income as received. For section 306 
pension, effective October 7, 1966, and for dependency and indemnity 
compensation, effective January 1, 1967, 10 percent of the payments 
received will be excluded.
    (3) Life insurance; old-law pension. For pension under laws in 
effect on June 30, 1960, 10 percent of the payments received will be 
excluded. Where it is considered that life insurance was received in a 
lump sum in the calendar year in which the veteran died and payments are 
actually received in succeeding years, no part of the payments received 
in succeeding years will be considered income until an amount equal to 
the lump-sum face value of the policy has been received, after which 10 
percent of the payments received will be excluded. The 10 percent 
exclusion is authorized effective October 7, 1966.
    (4) Disability, accident or health insurance. For pension, effective 
October 7, 1966, and for dependency and indemnity compensation, 
effective January 1, 1967, there will be excluded 10 percent of the 
payments received for disability after deduction of medical, legal, or 
other expenses incident to the disability. For compensation, after 
deduction of such expenses, the full amount of payments is considered 
income as received.
    (k) Property--(1) Ownership. The terms of the recorded deed or other 
evidence of title will constitute evidence of ownership of real or 
personal property. This includes property acquired through purchase, 
bequest or inheritance except that, effective January 1, 1971, amounts 
in joint accounts in banks and similar institutions acquired by reason 
of the death of another joint owner shall not be considered income of a 
survivor for section 306 pension purposes. With the foregoing exception, 
if property is owned jointly each person will be considered as owning a 
proportionate share. The claimant's share of property held in 
partnership will be determined on the facts found. In the absence of 
evidence to the contrary, the claimant's statement as to the terms of 
ownership will be accepted.


(Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508)

    (2) Income-producing property. Income received from real or personal 
property owned by the claimant will be counted. The claimant's share 
will be determined in proportion to his right according to the rules of 
ownership.
    (3) Sale of property. Except as provided in paragraphs (k)(4) and 
(5) of this section, net profit from the sale of real or personal 
property will be counted. In determining net profit from the sale of 
property owned prior to the date of entitlement, the value at the date 
of entitlement will be considered in relation to the selling price. 
Where payments are received in installments, payments will not be 
considered income until the claimant has received amounts equal to the 
value of the property at the date of entitlement. Principal and interest 
will not be counted separately.
    (4) Homes. Net profit from the sale of the claimant's residence 
which is received during the calendar year of sale will not be 
considered as income under the following conditions:
    (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. For pension under section 306 pension and for 
dependency and indemnity compensation, profit from the sale of real or 
personal property other than in the course of a business will not be 
considered income. This applies to property acquired either before or 
after the date of entitlement. Any amounts received in excess of the 
sales price will be counted as income. Where payments are received in 
installments, principal and interest will not be counted separately. For 
pension, this provision is effective January 1, 1965;

[[Page 217]]

for dependency and indemnity compensation, January 1, 1967.


(Authority: 38 U.S.C. 1503(a)(10); 38 U.S.C. 1315(g))

    (6) Payments on mortgages on real property; section 306 pension. 
Effective January 1, 1971, for the purposes of section 306 pension, an 
amount equaling any prepayments made by a veteran or surviving spouse on 
a mortgage or similar type security instrument in existence at the death 
of veteran or spouse on real property which prior to the death was the 
principal residence of the veteran and spouse will be excluded from 
consideration as income if such payment was made after the death and 
prior to the close of the year succeeding the year of death.


(Authority: 38 U.S.C. 1503(a)(14))

    (l) Unusual medical expenses. Within the provisions of paragraphs 
(l)(1) through (4) of this section there will be excluded from the 
amount of the claimant's annual income any unreimbursed amounts which 
have been paid within the calendar year for unusual medical expenses 
regardless of the year the indebtedness was incurred. The term unusual 
means excessive. It does not describe the nature of a medical condition 
but rather the amount expended for medical treatment in relationship to 
the claimant's resources available for sustaining a reasonable mode of 
life. Unreimbursed expenditures which exceed 5 percent of the claimant's 
reported annual income will be considered unusual. Health, accident, 
sickness and hospitalization insurance premiums will be included as 
medical expenses in determining whether the claimant's unreimbursed 
medical expenses meet the criterion for unusual. A claimant's statement 
as to amounts expended for medical expenses ordinarily will be accepted 
unless the circumstances create doubt as to its credibility. An estimate 
based on a clear and reasonable expectation that unusual medical 
expenditure will be realized may be accepted for the purpose of 
authorizing prospective payments of benefits subject to necessary 
adjustment in the award upon receipt of an amended estimate or after the 
end of the calendar year upon receipt of an income questionnaire.
    (1) Veterans. For the purpose of section 306 pension, there will be 
excluded unreimbursed amounts paid by the veteran for unusual medical 
expenses of self, spouse, and other relatives of the veteran in the 
ascending as well as descending class who are members or constructive 
members of the veteran's household and whom the veteran has a moral or 
legal obligation to support.
    (2) Surviving spouses. For the purpose of section 306 pension, there 
will be excluded unreimbursed amounts paid by the surviving spouse for 
the unusual medical expenses of self, the veteran's children, and other 
relatives of the surviving spouse in the ascending as well as descending 
class who are members or constructive members of the surviving spouse's 
household and whom the surviving spouse has a moral or legal obligation 
to support.
    (3) Children. For the purpose of section 306 pension, there will be 
excluded unreimbursed amounts paid by a child for the unusual medical 
expenses of self, parent, and brothers and sisters of the child.
    (4) Parents. For dependency and indemnity compensation purposes 
there will be excluded unreimbursed amounts paid by the parent for the 
unusual medical expenses of self, spouse, and other relatives of the 
parent in the ascending as well as descending class who are members or 
constructive members of the parent's household and whom the parent has a 
moral or legal obligation to support. If the combined annual income of 
the parent and the parent's spouse is the basis for dependency and 
indemnity compensation, the exclusion is applicable to the combined 
annual income and extends to the unusual unreimbursed medical expenses 
of the spouse's relatives in the ascending as well as descending class 
who are members or constructive members of the household and whom the 
parent's spouse has a moral or legal obligation to support.


(Authority: 38 U.S.C. 1315(f)(3); Sec. 306, Pub. L. 95-588; 92 Stat. 
2508)

    (m) Veteran's final expenses; pension. In claims for pension under 
section 306,

[[Page 218]]

there will be excluded, as provided in paragraph (p) of this section:
    (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. In claims 
for pension under section 306, there will be excluded, as provided in 
paragraph (p) of this section:
    (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. In claims for dependency and indemnity 
compensation there will be excluded from the income of a parent, as 
provided in paragraph (p) of this section, amounts equal to amounts paid 
by the parent for:
    (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. For the purpose of paragraphs 
(m), (n) and (o) of this section, in the absence of contradictory 
information, the claimant's statement will be accepted as to the nature, 
amount and date of payment, and identity of the creditor. Except as 
provided in this paragraph, payments will be deducted from annual income 
for the year in which such payments are made. Payments made by a 
veteran, the spouse or surviving spouse of a veteran, child or, in 
dependency and indemnity compensation claims, by a parent during the 
calendar year following the year in which the veteran, spouse or child 
died may be deducted from the claimant's income for the year of last 
illness or burial if this deduction is advantageous to the claimant.
    (q) Volunteer programs--(1) Payments under Foster Grandparent 
Program and Older Americans Community Service Programs. Effective May 3, 
1973, compensation received under the Foster Grandparent Program and the 
Older Americans Community Service Programs will be excluded from income 
in claims for compensation, pension and dependency and indemnity 
compensation.


(Authority: Pub. L. 93-29; 87 Stat. 55)

    (2) Payments under domestic volunteer service act programs. 
Effective October 1, 1973, compensation or reimbursement received under 
a Domestic Volunteer Service Act Program (including 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 Program, 
Retired Senior Volunteer Program (RSVP), Senior Companion Program, 
Service Corps of Retired Executives (SCORE) and Active Corps of 
Executives (ACE), will be excluded from income in claims for 
compensation, pension and dependency and indemnity compensation.


(Authority: Pub. L. 93-113; 87 Stat. 394)


[[Page 219]]


    (r) Survivor benefit annuity. For the purposes of old law pension 
and section 306 pension, there shall be excluded from computation of 
income annuity paid by the Department of Defense under the authority of 
section 653, Public Law 100-456 to qualified surviving spouses of 
veterans who died prior to November 1, 1953. (September 29, 1988)


(Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991)

    (s) Agent Orange settlement payments. In claims for pension and 
parents' dependency and indemnity income, there shall be excluded from 
computation of income payments received by any person in the case of In 
re Agent Orange Product Liability Litigation in the United States 
District Court for the Eastern District of New York (MDL No. 381). 
(January 1, 1989)


(Authority: Pub. L. 101-201, 103 Stat. 1795)

    (t) Reimbursement for casualty loss. The following sources of 
reimbursements for casualty loss will not be considered as income in 
determining entitlement to benefits under the programs specified. 
Amounts to be excluded from computation in parens' dependency and 
indemnity compensation claims are limited to amounts of reimbursement 
which do not exceed the greater of the fair market value or the 
reasonable replacement cost of the property involved at the time 
immediately preceding the 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))

    (u) Restitution to individuals of Japanese ancestry. Effective 
August 10, 1988, for the purposes of old law pension, section 306 
pension, parents' death compensation, and parents' dependency and 
indemnity compensation, there shall be excluded from income computation 
any payment made as restitution under Public Law 100-383 to individuals 
of Japanese ancestry who were interned, evacuated, or relocated during 
the period December 7, 1941, through June 30, 1946, pursuant to any law, 
Executive order, Presidential proclamation, directive, or other official 
action respecting these individuals.
    (v) Income received by American Indian beneficiaries from trust or 
restricted lands. There shall be excluded from income computation 
payments of up to $2,000 per calendar year to an individual Indian from 
trust lands or restricted lands as defined in 25 CFR 151.2. (January 1, 
1994)


(Authority: Sec. 13736, Pub. L. 103-66; 107 Stat. 663)

    (w) Radiation Exposure Compensation Act. For the purposes of 
parents' dependency and indemnity compensation, there shall be excluded 
from income computation payments under Section 6 of the Radiation 
Exposure Compensation Act of 1990.


(Authority: 42 U.S.C. 2210 note)

    (x) Alaska Native Claims Settlement Act. There shall be excluded 
from income computation any cash (including cash dividends on stock 
received from a Native Corporation) to the extent that it does not, in 
the aggregate, exceed $2,000 per individual per annum; stock (including 
stock issued or distributed by a Native Corporation as a dividend or 
distribution on stock); a partnership interest; land or an interest in 
land (including land or an interest in land received from a Native 
Corporation as a dividend or distribution on stock); and an interest in 
a settlement trust. (November 2, 1994)


(Authority: Sec. 506, Pub. L. 103-446)

    (y) Monetary allowance under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans. There shall be 
excluded from income computation any allowance paid under the provisions 
of 38 U.S.C. chapter 18 to or for an

[[Page 220]]

individual who is the child of a Vietnam veteran.


(Authority: 38 U.S.C. 1823(c))

    (z) Victims of Crime Act. For purposes of old law pension, section 
306 pension, and parents' dependency and indemnity compensation, amounts 
received as compensation under the Victims of Crime Act of 1984 will not 
be considered income unless the total amount of assistance received from 
all federally funded programs is sufficient to fully compensate the 
claimant for losses suffered as a result of the crime.


(Authority: 42 U.S.C. 10602(c))
    (aa) Medicare Prescription Drug Discount Card and Transitional 
Assistance Program. For purposes of old law pension, section 306 
pension, and parents' dependency and indemnity compensation, the 
payments received under the Medicare transitional assistance program and 
any savings associated with the Medicare prescription drug discount card 
will not be considered income.

(Authority: 42 U.S.C. 1395w-141(g)(6))

[28 FR 32, Jan. 1, 1963]

    Editorial Note: For Federal Register citations affecting Sec. 
3.262, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 3.263  Corpus of estate; net worth.

    (a) General. The following rules are for application in determining 
the corpus of estate of a parent where dependency is a factor under 
Sec. 3.250, and the net worth of a veteran, surviving spouse, or child 
where pension is subject to Pub. L. 86-211 (73 Stat. 432) under Sec. 
3.252(b). Only the estate of the parent, in claims based on dependency, 
or the estate of the veteran, surviving spouse, or child-claimant in 
claims for pension, will be considered. In the absence of contradictory 
information, the claimant's statement as to ownership and estimate of 
value will be accepted.
    (b) Definition. Corpus of estate and net worth mean the market 
value, less mortgages or other encumbrances, of all real and personal 
property owned by the claimant except the claimant's dwelling (single-
family unit) including a reasonable lot area, and personal effects 
suitable to and consistent with the claimant's reasonable mode of life.
    (c) Ownership. See Sec. 3.262(k).
    (d) Evaluation. In determining whether some part of the claimant's 
estate should be consumed for his or her maintenance, consideration will 
be given to the amount of the claimant's income, together with the 
following factors: whether the property can be readily converted into 
cash at no substantial sacrifice; ability to dispose of property as 
limited by community property laws; life expectancy; number of 
dependents who meet the requirements of Sec. 3.250(b)(2); potential 
rate of depletion, including unusual medical expenses under the 
principles outlined in Sec. 3.262(l) for the claimant and his or her 
dependents.
    (e) Agent Orange settlement payments. There shall be excluded from 
the corpus of estate or net worth of a claimant any payment made from 
the Agent Orange Settlement Fund or any other fund established pursuant 
to the settlement in the In re Agent Orange product liability 
litigation, M.D.L. No. 381 (E.D.N.Y.). (January 1, 1989)


(Authority: Pub. L. 101-201, 103 Stat. 1795)

    (f) Restitution to individuals of Japanese ancestry. Effective 
August 10, 1988, for the purposes of section 306 pension and parents' 
death compensation, there shall be excluded from the corpus of estate or 
net worth of a claimant any payment made as restitution under Public Law 
100-383 to individuals of Japanese ancestry who were interned, 
evacuated, or relocated during the period December 7, 1941, through June 
30, 1946, pursuant to any law, Executive order, Presidential 
proclamation, directive, or other official action respecting these 
individuals.

(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905; Sec. 6. Pub. L. 
102-371; 106 Stat. 1167, 1168)
    (g) Monetary allowance under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans. There shall be 
excluded from the corpus of estate or net worth of a claimant any 
allowance paid under the provisions of 38

[[Page 221]]

U.S.C. chapter 18 to or for an individual who is a child of a Vietnam 
veteran.


(Authority: 38 U.S.C. 1823(c))

    (h) Victims of Crime Act. There shall be excluded from the corpus of 
estate or net worth of a claimant any amounts received as compensation 
under the Victims of Crime Act of 1984 unless the total amount of 
assistance received from all federally funded programs is sufficient to 
fully compensate the claimant for losses suffered as a result of the 
crime.


(Authority: 42 U.S.C. 10602(c))
    (i) Medicare Prescription Drug Discount Card and Transitional 
Assistance Program. There shall be excluded from the corpus of estate or 
net worth of a claimant payments received under the Medicare 
transitional assistance program and any savings associated with the 
Medicare prescription drug discount card.

(Authority: 42 U.S.C. 1395w-141(g)(6))

    Cross References: Reductions and discontinuances; dependency. See 
Sec. 3.500(h). Material change in income, net worth or change in 
status. See Sec. 3.660. Income and net worth questionnaires. See Sec. 
3.661.

[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]



Sec. 3.270  Applicability of various dependency, income and estate 
regulations.

    (a) Sections 3.250 to 3.270. These sections are applicable to 
dependency, income and estate determinations needed to determine 
entitlement or continued entitlement for the following programs:
    (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 Sec. Sec. 3.250 to 3.270 
referring to section 306 or old-law pension generally refer to 
provisions of law in effect on December 31, 1978.

    (b) Sections 3.271 to 3.300. These sections apply to income and 
estate determinations of entitlement to the improved disability and 
death pension program which became effective January 1, 1979.

[44 FR 45936, Aug. 6, 1979]

  Regulations Applicable to the Improved Pension Program Which Became 
                        Effective January 1, 1979

    Source: 44 FR 45936, Aug. 6, 1979, unless otherwise noted.



Sec. 3.271  Computation of income.

    (a) General. Payments of any kind from any source shall be counted 
as income during the 12-month annualization period in which received 
unless specifically excluded under Sec. 3.272.


(Authority: 38 U.S.C. 501)

    (1) Recurring income. Recurring income means income which is 
received or anticipated in equal amounts and at regular intervals (e.g., 
weekly, monthly, quarterly, etc.), and which will continue throughout an 
entire 12-month annualization period. The amount of recurring income for 
pension purposes will be the amount received or anticipated during a 12-
month annualization period. Recurring income which terminates prior to 
being counted for at least one full 12-month annualization period will 
be treated as nonrecurring income for computation purposes.
    (2) Irregular income. Irregular income means income which is 
received or anticipated during a 12-month annualization period, but 
which is received in unequal amounts or at irregular intervals. The 
amount of irregular income for pension purposes will be the amount 
received or anticipated during a 12-month annualization period following 
initial receipt of such income.
    (3) Nonrecurring income. Nonrecurring income means income received 
or anticipated on a one-time basis during a 12-month annualization 
period (e.g., an inheritance). Pension computations of income will 
include nonrecurring income for a full 12-month annualization period 
following receipt of the income.
    (b) Salary. Salary means the gross amount of a person's earnings or 
wages before any deductions are made for

[[Page 222]]

such things as taxes, insurance, retirement plans, social security, etc.
    (c) Business, farm or professional income. (1) This includes gross 
income from a business, farm or profession as reduced by the necessary 
operating expenses such as cost of goods sold, or expenditures for rent, 
taxes, and upkeep, or costs of repairs or replacements. The value of an 
increase in stock inventory of a business is not considered 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. Income from real or personal property is 
countable as income of the property's owner. The terms of a recorded 
deed or other evidence of title shall constitute evidence of ownership. 
This includes property acquired through purchase, gift, devise, or 
descent. If property is owned jointly, income of the various owners 
shall be determined in proportion to shares of ownership of the 
property. The owner's shares of income held in partnership shall be 
determined on the basis of the facts found.
    (e) Installments. Income shall be determined by the total amount 
received or anticipated during a 12-month annualization period.


(Authority: 38 U.S.C. 501)

    (f) Deferred determinations. (1) When an individual is unable to 
predict with certainty the amount of countable annual income, the annual 
rate of improved pension shall be reduced by the greatest amount of 
anticipated countable income until the end of the 12-month annualization 
period, when total income received during that period will be determined 
and adjustments in pension payable made accordingly.


(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 Sec. 3.204, Sec. 3.205, Sec. 
3.209, or Sec. 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. Compensation paid 
by the United States Department of Labor, Office of Workers' 
Compensation Programs, Social Security Administration, or the Railroad 
Retirement Board, or pursuant to any worker's compensation or employer's 
liability statute, or damages collected because of personal injury or 
death, will be considered income as received. However, medical, legal or 
other expenses incident to the injury or death, or incident to the 
collection or recovery of the amount of the award or settlement, may be 
deducted. The criteria in Sec. 3.272(g) apply as to all medical 
expenditures after the award or settlement.


(Authority: 38 U.S.C. 501)

    (h) Fractions of dollars. Fractions of dollars will be disregarded 
in computing annual income.

[44 FR 45936, Aug. 6, 1979, as amended at 53 FR 23235, June 21, 1988; 57 
FR 59299, Dec. 15, 1992]



Sec. 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. Donations from public or private relief, welfare, or 
charitable organizations.


(Authority: 38 U.S.C. 1503(a)(1))

    (b) Maintenance. The value of maintenance furnished by a relative, 
friend, or

[[Page 223]]

a charitable organization (civic or governmental) will not be considered 
income. Where the individual is maintained in a rest home or other 
community institution or facility, public or private, because of 
impaired health or advanced age, money paid to the home or the 
individual to cover the cost of maintenance will not be considered 
income, regardless of whether it is furnished by a relative, friend, or 
charitable organization. The expense of maintenance is not deductible if 
it is paid from the individual's income.


(Authority: 38 U.S.C. 501, 1503(a)(1))

    (c) Department of Veterans Affairs pension benefits. Payments under 
chapter 15 of title 38, United States Code, including accrued pension 
benefits payable under 38 U.S.C. 5121.


(Authority: 38 U.S.C. 1503(a)(2))

    (d) Reimbursement for casualty loss. Reimbursement of any kind for 
any casualty loss. The amount to be excluded is not to exceed the 
greater of the fair market value or the reasonable replacement cost of 
the property involved at the time immediately preceding the loss. For 
purposes of this paragraph, the term ``casualty loss'' means the 
complete or partial destruction of property resulting from an 
identifiable event of a sudden, unexpected or unusual nature.


(Authority: 38 U.S.C. 1503(a)(5))

    (e) Profit from sale of property. Profit realized from the 
disposition of real or personal property other than in the course of 
business, except amounts received in excess of the sales price, for 
example, interest on deferred sales is included as income. In 
installment sales, any payments received until the sales price is 
recovered are not included as income, but any amounts received which 
exceed the sales price are included, regardless of whether they 
represent principal or interest.


(Authority: 38 U.S.C. 1503(a)(6))

    (f) Joint accounts. Amounts in joint accounts in banks and similar 
institutions acquired by reason of death of the other joint owner.


(Authority: 38 U.S.C. 1503(a)(7))

    (g) Medical expenses. Within the provisions of the following 
paragraphs, there will be excluded from the amount of an individual's 
annual income any unreimbursed amounts which have been paid within the 
12-month annualization period for medical expenses regardless of when 
the indebtedness was incurred. An estimate based on a clear and 
reasonable expectation that unusual medical expenditure will be realized 
may be accepted for the purpose of authorizing prospective payments of 
benefits subject to necessary adjustment in the award upon receipt of an 
amended estimate, or after the end of the 12-month annualization period 
upon receipt of an eligibility verification report.


(Authority: 38 U.S.C. 501)

    (1) Veteran's income. Unreimbursed medical expenses will be excluded 
when all of the following requirements are met:
    (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. Unreimbursed medical expenses will be 
excluded when all of the following requirements are met:
    (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

[[Page 224]]

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. Unreimbursed amounts paid by a child for 
medical expenses of self, parent, brothers and sisters, to the extent 
that such amounts exceed 5 percent of the maximum annual pension rate or 
rates payable to the child during the 12-month annualization period in 
which the medical expenses were paid.


(Authority: 38 U.S.C. 501)

    (h) Expenses of last illnesses, burials, and just debts. Expenses 
specified in paragraphs (h)(1) and (h)(2) of this section which are paid 
during the calendar year following that in which death occurred may be 
deducted from annual income for the 12-month annualization period in 
which they were paid or from annual income for any 12-month 
annualization period which begins during the calendar year of death, 
whichever is to the claimant's advantage. Otherwise, such expenses are 
deductible only for the 12-month annualization period in which they were 
paid.


(Authority: 38 U.S.C. 501)

    (1) Veteran's final expenses. (i) Amounts paid by a spouse before a 
veteran's death for expenses of the veteran's last illness will be 
deducted from the income of the surviving spouse.


(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. (i) Amounts paid by a veteran 
for the expenses of the last illness and burial of the veteran's 
deceased spouse or child will be deducted from the veteran's income.
    (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. Amounts equal to expenses paid by a 
veteran or surviving spouse pursuing a course of education or vocational 
rehabilitation or training, to include amounts paid for tuition, fees, 
books, and materials, and in the case of a veteran or surviving spouse 
in need of regular aid and attendance, unreimbursed amounts paid for 
unusual transportation expenses in connection with the pursuit of such 
course. Unusual transportation expenses are those exceeding the 
reasonable expenses which would have been incurred by a nondisabled 
person using an appropriate means of transportation (public 
transportation, if reasonably available).


(Authority: 38 U.S.C. 1503(a)(9))

    (j) Child's income. In the case of a child, any current work income 
received during the year, to the extent that the total amount of such 
income does not exceed an amount equal to the sum of the following:
    (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

[[Page 225]]

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) Domestic Volunteer Service Act Programs. Payments received under 
a Domestic Volunteer Service Act (DVSA) Program (including Volunteers in 
Service to America (VISTA), University Year for ACTION (UYA), Foster 
Grandparent Program (FGP), Retired Senior Volunteer Program (RSVP), 
Senior Companion Program) shall be excluded as provided in paragraphs 
(k)(1) and (2) of this section:
    (1) All DVSA payments received before December 13, 1979, shall be 
excluded from determining entitlement to improved pension.


(Authority: 42 U.S.C. 5044(g) (1973))

    (2) DVSA payments received after December 12, 1979, shall be 
excluded from determining entitlement to improved pension unless the 
Director of the ACTION Agency has determined that the value of all DVSA 
payments, adjusted to reflect the number of hours served by the 
volunteer, equals or exceeds the minimum wage then in effect under the 
Fair Labor Standards Act of 1938 or the minimum wage of the State where 
the volunteer served, whichever is the greater.


(Authority: 42 U.S.C. 5044(g) (1979))

    (l) Distributions of funds under 38 U.S.C. 1718. Distributions from 
the Department of Veterans Affairs Special Therapeutic and 
Rehabilitation Activities Fund as a result of participation in a 
therapeutic or rehabilitation activity under 38 U.S.C. 1718 and payments 
from participation in a program of rehabilitative services provided as 
part of the care furnished by a State home and which is approved by VA 
as conforming to standards for activities under 38 U.S.C. 1718 shall be 
considered donations from a public or private relief or welfare 
organization and shall not be countable as income for pension purposes.


(Authority: 38 U.S.C. 1718(f))

    (m) Hardship exclusion of child's available income. When hardship is 
established under the provisions of Sec. 3.23(d)(6) of this part, there 
shall be excluded from the available income of any child or children an 
amount equal to the amount by which annual expenses necessary for 
reasonable family maintenance exceed the sum of countable annual income 
plus VA pension entitlement computed without consideration of this 
exclusion. The amount of this exclusion shall not exceed the available 
income of any child or children, and annual expenses necessary for 
reasonable family maintenance shall not include any expenses which were 
considered in determining the available income of the child or children 
or the countable annual income of the veteran or surviving spouse.


(Authority: 38 U.S.C. 1521(h), 1541(g))

    (n) Survivor benefit annuity. Annuity paid by the Department of 
Defense under the authority of section 653, Public Law 100-456 to 
qualified surviving spouses of veterans who died prior to November 1, 
1953. (September 29, 1988)


(Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991)

    (o) Agent Orange settlement payments. Payments received by any 
person in settlement of the case of In re Agent Orange product liability 
litigation in the United States District Court for the Eastern District 
of New York (M.D.L. No. 381). (January 1, 1989)


(Authority: Pub. L. 101-201, 103 Stat. 1795)

    (p) Restitution to individuals of Japanese ancestry. Any payment 
made as restitution under Public Law 100-383 to individuals of Japanese 
ancestry who were interned, evacuated, or relocated during the period 
December 7, 1941, through June 30, 1946, pursuant to any law, Executive 
order, Presidential proclamation, directive, or other official action 
respecting these individuals. (August 10, 1988)


(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905)

    (q) Cash surrender value of life insurance. That portion of proceeds 
from the

[[Page 226]]

cash surrender of a life insurance policy which represents a return of 
insurance premiums.


(Authority: 38 U.S.C. 501(a))

    (r) Income received by American Indian beneficiaries from trust or 
restricted lands. Income of up to $2,000 per calendar year to an 
individual Indian from trust lands or restricted lands as defined in 25 
CFR 151.2. (January 1, 1994)


(Authority: Sec. 13736, Pub. L. 103-66; 107 Stat. 633)

    (s) Radiation Exposure Compensation Act. Any payment made under 
Section 6 of the Radiation Exposure Compensation Act of 1990.


(Authority: 42 U.S.C. 2210 note)

    (t) Alaska Native Claims Settlement Act. Any receipt by an 
individual of cash (including cash dividends on stock received from a 
Native Corporation) to the extent that it does not, in the aggregate, 
exceed $2,000 per individual per annum; stock (including stock issued or 
distributed by a Native Corporation as a dividend or distribution on 
stock); a partnership interest; land or an interest in land (including 
land or an interest in land received from a Native Corporation as a 
dividend or distribution on stock); and an interest in a settlement 
trust. (November 2, 1994)


(Authority: Sec. 506, Pub. L. 103-446)

    (u) Monetary allowance under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans. Any allowance paid 
under the provisions of 38 U.S.C. chapter 18 to or for an individual who 
is a child of a Vietnam veteran.


(Authority: 38 U.S.C. 1833(c))

    (v) Victims of Crime Act. Amounts received as compensation under the 
Victims of Crime Act of 1984 unless the total amount of assistance 
received from all federally funded programs is sufficient to fully 
compensate the claimant for losses suffered as a result of the crime.


(Authority: 42 U.S.C. 10602(c))
    (w) Medicare Prescription Drug Discount Card and Transitional 
Assistance Program. The payments received under the Medicare 
transitional assistance program and any savings associated with the 
Medicare prescription drug discount card.

(Authority: 42 U.S.C. 1395w-141(g)(6))

[44 FR 45936, Aug. 6, 1979, as amended at 46 FR 9580, Jan. 29, 1981; 53 
FR 23235, June 21, 1988; 53 FR 24831, June 30, 1988; 56 FR 65847, Dec. 
19, 1991; 57 FR 59300, Dec. 15, 1992; 58 FR 25563, Apr. 27, 1993; 59 FR 
35266, July 11, 1994; 59 FR 37696, July 25, 1994; 59 FR 45976, Sept. 6, 
1994; 60 FR 2523, Jan. 10, 1995; 60 FR 18355, Apr. 11, 1995; 62 FR 5528, 
Feb. 6, 1997; 62 FR 51279, Sept. 30, 1997; 67 FR 9209, Feb. 28, 2002; 67 
FR 49587, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 
28, 2005]



Sec. 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 Sec. 3.31 or Sec. 3.660.
    (a) Initial award. For the purpose of determining initial 
entitlement, or for resuming payments on an award which was previously 
discontinued, the monthly rate of pension payable to a beneficiary shall 
be computed by reducing the beneficiary's applicable maximum pension 
rate by the beneficiary's countable income on the effective date of 
entitlement and dividing the remainder by 12. Effective June 1, 1983, 
the provisions of Sec. 3.29(b) apply to this paragraph. Recomputation 
of rates due to changes in the maximum annual pension rate or rate of 
income following the initial date of entitlement are subject to the 
provisions of paragraph (b) of this section.
    (b) Running awards--(1) Change in maximum annual pension rate. 
Whenever there is change in a beneficiary's applicable maximum annual 
pension rate, the monthly rate of pension payable shall be computed by 
reducing the new applicable maximum annual pension rate by the 
beneficiary's countable income on the effective date of the change in 
the applicable maximum annual pension rate, and dividing the remainder 
by 12. Effective June 1, 1983, the provisions of Sec. 3.29(b) apply to 
this paragraph.
    (2) Change in amount of income. Whenever there is a change in a 
beneficiary's amount of countable income the

[[Page 227]]

monthly rate of pension payable shall be computed by reducing the 
beneficiary's applicable maximum annual pension rate by the 
beneficiary's new amount of countable income on the effective date of 
the change in the amount of income, and dividing the remainder by 12. 
Effective June 1, 1983, the provisions of Sec. 3.29(b) apply to this 
paragraph.
    (c) Nonrecurring income. The amount of any nonrecurring countable 
income (e.g. an inheritance) received by a beneficiary shall be added to 
the beneficiary's annual rate of income for a 12-month annualization 
period commencing on the effective date on which the nonrecurring income 
is countable.


(Authority: 38 U.S.C. 501)

    (d) Recurring and irregular income. The amount of recurring and 
irregular income anticipated or received by a beneficiary shall be added 
to determine the beneficiary's annual rate of income for a 12-month 
annualization period commencing at the beginning of the 12-month 
annualization, subject to the provisions of Sec. 3.660(a)(2) of this 
chapter.

[44 FR 45936, Aug. 6, 1979, as amended at 48 FR 34472, July 29, 1983; 57 
FR 59300, Dec. 15, 1992]



Sec. 3.274  Relationship of net worth to pension entitlement.

    (a) Veteran. Pension shall be denied or discontinued when the corpus 
of the estate of the veteran, and of the veteran's spouse, are such that 
under all the circumstances, including consideration of the annual 
income of the veteran, the veteran's spouse, and the veteran's children, 
it is reasonable that some part of the corpus of such estates be 
consumed for the veteran's maintenance.


(Authority: 38 U.S.C. 1522(a))

    (b) Increased pension payable to a veteran for a child. Increased 
pension payable to a veteran on account of a child shall be denied or 
discontinued when the corpus of the estate of the child is such that 
under all the circumstances including consideration of the veteran's and 
spouse's income and the income of the veteran's child or children, it is 
reasonable that some part of the corpus of such child's estate be 
consumed for the child's maintenance.


(Authority: 38 U.S.C. 1522(b))

    (c) Surviving spouse. Pension payable to a surviving spouse shall be 
denied or discontinued when the corpus of the estate of the surviving 
spouse is such that under all the circumstances, including consideration 
of the surviving spouse's income and the income of any child for whom 
the surviving spouse is receiving pension, it is reasonable that some 
part of the corpus of the surviving spouse's estate be consumed for the 
surviving spouse's maintenance.


(Authority: 38 U.S.C. 1543(a)(1))

    (d) Increased pension payable to a surviving spouse for a child. 
Increased pension payable to a surviving spouse on account of a child 
shall be denied or discontinued when the corpus of the estate of the 
child is such that under all the circumstances, including consideration 
of the income of the surviving spouse and child and the income of any 
other child for whom the surviving spouse is receiving increased 
pension, it is reasonable that some part of the corpus of the child's 
estate be consumed for the maintenance of the child.


(Authority: 38 U.S.C. 1543(a)(2))

    (e) Child. Pension payable to a child shall be denied or 
discontinued when the corpus of the estate of the child is such that 
under all the circumstances, including consideration of the income of 
the child, the income of any person with whom the child is residing who 
is legally responsible for such child's support, and the corpus of 
estate of such person, it is reasonable that some part of the corpus of 
such estates be consumed for the child's maintenance.

(Authority: 38 U.S.C. 1543(b))



Sec. 3.275  Criteria for evaluating net worth.

    (a) General. The following rules are for application in determining 
the corpus of estate or net worth of a veteran, surviving spouse or 
child under Sec. 3.274.
    (b) Definition. The terms corpus of estate and net worth mean the 
market

[[Page 228]]

value, less mortgages or other encumbrances, of all real and personal 
property owned by the claimant, except the claimant's dwelling (single 
family unit), including a reasonable lot area, and personal effects 
suitable to and consistent with the claimant's reasonable mode of life.
    (c) Ownership. See Sec. 3.271(d).
    (d) Evaluation. In determining whether some part of the claimant's 
estate (or combined estates under Sec. 3.274 (a) and (e)) should be 
consumed for the claimant's maintenance, consideration will be given to 
the amount of the claimant's income together with the following: Whether 
the property can be readily converted into cash at no substantial 
sacrifice; life expectancy; number of dependents who meet the definition 
of member of the family (the definition contained in Sec. 3.250(b)(2) 
is applicable to the improved pension program); potential rate of 
depletion, including unusual medical expenses under the principles 
outlined in Sec. 3.272(g) for the claimant and the claimant's 
dependents.
    (e) Educational expenses. There shall be excluded from the corpus of 
estate or net worth of a child reasonable amounts for actual or 
prospective educational or vocational expenses. The amount so excluded 
shall not be such as to provide for education or training beyond age 23.


(Authority: 38 U.S.C. 501)

    (f) Agent Orange settlement payments. There shall be excluded from 
the corpus of the estate or net worth of a claimant any payment made 
from the Agent Orange Settlement Fund or any other fund established 
pursuant to the settlement in the In re Agent Orange product liability 
litigation, M.D.L. No. 381 (E.D.N.Y.). (January 1, 1989)


(Authority: Pub. L. 101-201, 103 Stat. 1795)

    (g) Restitution to individuals of Japanese ancestry. There shall be 
excluded from the corpus of estate or net worth of a claimant any 
payment made as restitution under Public Law 100-383 to individuals of 
Japanese ancestry who were interned, evacuated, or relocated during the 
period December 7, 1941, through June 30, 1946, pursuant to any law, 
Executive order, Presidential proclamation, directive, or other official 
action respecting these individuals. (August 10, 1988)


(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905)

    (h) Radiation Exposure Compensation Act. There shall be excluded 
from the corpus of estate or net worth of a claimant any payment made 
under Section 6 of the Radiation Exposure Compensation Act of 1990.


(Authority: 42 U.S.C. 2210 note)

    (i) Monetary allowance under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans. There shall be 
excluded from the corpus of estate or net worth of a claimant any 
allowance paid under the provisions of 38 U.S.C. chapter 18 to or for an 
individual who is a child of a Vietnam veteran.


(Authority: 38 U.S.C. 1833(c))
    (j) Victims of Crime Act. There shall be excluded from the corpus of 
estate or net worth of a claimant any amounts received as compensation 
under the Victims of Crime Act of 1984 unless the total amount of 
assistance received from all federally funded programs is sufficient to 
fully compensate the claimant for losses suffered as a result of the 
crime.


(Authority: 42 U.S.C. 10602(c))
    (k) Medicare Prescription Drug Discount Card and Transitional 
Assistance Program. There shall be excluded from the corpus of estate or 
net worth of a claimant payments received under the Medicare 
transitional assistance program and any savings associated with the 
Medicare prescription drug discount card.

(Authority: 42 U.S.C. 1395w-141(g)(6))

[44 FR 45936, Aug. 6, 1979, as amended at 57 FR 59300, Dec. 15, 1992; 60 
FR 2523, Jan. 10, 1995; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, July 
31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005]



Sec. 3.276  Certain transfers or waivers disregarded.

    (a) Waiver of receipt of income. Potential income, not excludable 
under Sec. 3.272 and whose receipt has been

[[Page 229]]

waived by an individual, shall be included as countable income of that 
individual for Department of Veterans Affairs pension purposes.
    (b) Transfer of assets. For pension purposes, a gift of property 
made by an individual to a relative residing in the same household shall 
not be recognized as reducing the corpus of the grantor's estate. A sale 
of property to such a relative shall not be recognized as reducing the 
corpus of the seller's estate if the purchase price, or other 
consideration for the sale, is so low as to be tantamount to a gift. A 
gift of property to someone other than a relative residing in the 
grantor's household will not be recognized as reducing the corpus of the 
grantor's estate unless it is clear that the grantor has relinquished 
all rights of ownership, including the right of control of the property.

(Authority: 38 U.S.C. 501)



Sec. 3.277  Eligibility reporting requirements.

    (a) Evidence of entitlement. As a condition of granting or 
continuing pension, the Department of Veterans Affairs may require from 
any person who is an applicant for or a recipient of pension such 
information, proofs, and evidence as is necessary to determine the 
annual income and the value of the corpus of the estate of such person, 
and of any spouse or child for whom the person is receiving or is to 
receive increased pension (such child is hereinafter in this section 
referred to as a dependent child), and, in the case of a child applying 
for or in receipt of pension in his or her own behalf (hereinafter in 
this section referred to as a surviving child), of any person with whom 
such child is residing who is legally responsible for such child's 
support.
    (b) Obligation to report changes in factors affecting entitlement. 
Any individual who has applied for or receives pension must promptly 
notify the Secretary of any change affecting entitlement in any of the 
following:
    (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. (1) For purposes of this 
section the term eligibility verification report means a form prescribed 
by the Secretary that is used to request income, net worth, dependency 
status, and any other information necessary to determine or verify 
entitlement to pension.
    (2) The Secretary shall 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 
Sec. 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.

(The Office of Management and Budget has approved the information 
collection requirements in this section under control numbers 2900-0101 
and 2900-0624.)

(Authority: 38 U.S.C. 1506)

[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]

        Ratings and Evaluations; Basic Entitlement Considerations



Sec. 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

[[Page 230]]

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 Sec. Sec. 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 Sec. 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 Sec. 3.310(a).

(Authority: 38 U.S.C. 501(a), 1103, 1103 note)

[66 FR 18198, Apr. 6, 2001]



Sec. 3.301  Line of duty and misconduct.

    (a) Line of duty. Direct service connection may be granted only when 
a disability or cause of death was incurred or aggravated in line of 
duty, and not the result of the veteran's own willful misconduct or, for 
claims filed after October 31, 1990, the result of his or her abuse of 
alcohol or drugs.


(Authority: 38 U.S.C. 105)

    (b) Willful misconduct. Disability pension is not payable for any 
condition due to the veteran's own willful misconduct.


(Authority: 38 U.S.C. 1521)

    (c) Specific applications; willful misconduct. For the purpose of 
determining entitlement to service-connected and nonservice-connected 
benefits the definitions in Sec. Sec. 3.1 (m) and (n) of this part 
apply except as modified within paragraphs (c)(1) through (c)(3) of this 
section. The provisions of paragraphs (c)(2) and (c)(3) of this section 
are subject to the provisions of Sec. 3.302 of this part where 
applicable.


(Authority: 38 U.S.C. 501)

    (1) Venereal disease. The residuals of venereal disease are not to 
be considered the result of willful misconduct. Consideration of service 
connection for residuals of venereal disease as having been incurred in 
service requires that the initial infection must have occurred during 
active service. Increase in service of manifestations of venereal 
disease will usually be held due to natural progress unless the facts of 
record indicate the increase in manifestations was precipitated by 
trauma or by the conditions of the veteran's service, in which event 
service connection may be established by aggravation. Medical principles 
pertaining to the incubation period and its relation to the course of 
the disease; i.e., initial or acute manifestation, or period and course 
of secondary and late residuals manifested, will be considered when time 
of incurrence of venereal disease prior to or after entry into service 
is at issue. In the issue of service connection, whether the veteran 
complied with service regulations and directives for reporting the 
disease and undergoing treatment is immaterial after November 14, 1972, 
and the service department characterization of acquisition of the 
disease as willful misconduct or as not in line of duty will not govern.
    (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

[[Page 231]]

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 
Sec. Sec. 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. The isolated and infrequent use of drugs by itself 
will not be considered willful misconduct; however, the progressive and 
frequent use of drugs to the point of addiction will be considered 
willful misconduct. Where drugs are used to enjoy or experience their 
effects and the effects result proximately and immediately in disability 
or death, such 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 drugs and infections coinciding 
with the injection of drugs will not be considered of willful misconduct 
origin. (See paragraph (d) of this section regarding service connection 
where disability or death is a result of abuse of drugs.) Where drugs 
are used for therapeutic purposes or where use of drugs or addiction 
thereto, results from a service-connected disability, it will not be 
considered of misconduct origin.


(Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, and 1521(a))

    (d) Line of duty; abuse of alcohol or drugs. An injury or disease 
incurred during active military, naval, or air service shall not be 
deemed to have been incurred in line of duty if such injury or disease 
was a result of the abuse of alcohol or drugs by the person on whose 
service benefits are claimed. For the purpose of this paragraph, alcohol 
abuse means the use of alcoholic beverages over time, or such excessive 
use at any one time, sufficient to cause disability to or death of the 
user; drug abuse means the use of illegal drugs (including prescription 
drugs that are illegally or illicitly obtained), the intentional use of 
prescription or non-prescription drugs for a purpose other than the 
medically intended use, or the use of substances other than alcohol to 
enjoy their intoxicating effects.

(Authority: 38 U.S.C. 105(a))

    Cross-References: In line of duty. See Sec. 3.1(m). Willful 
misconduct. See Sec. 3.1(n). Extended period of eligibility. See 
Sec. Sec. 21.1043 and 21.7051. Periods of entitlement. See Sec. 
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 27408-27409, 
May 24, 1995]



Sec. 3.302  Service connection for mental unsoundness in suicide.

    (a) General. (1) In order for suicide to constitute willful 
misconduct, the act of self-destruction must be intentional.
    (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. (1) Whether a person, at the time 
of suicide, was so unsound mentally that he or she did not realize the 
consequence of such an act, or was unable to resist such impulse is a 
question to be determined in each individual case, based on all 
available lay and medical evidence pertaining to his or her mental 
condition at the time of suicide.
    (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. (1) Affirmative evidence is necessary to 
justify reversal of service department findings of mental unsoundness 
where Department of Veterans Affairs criteria do not otherwise warrant 
contrary findings.

[[Page 232]]

    (2) In all instances any reasonable doubt should be resolved 
favorably to support a finding of service connection (see Sec. 3.102).

    Cross Reference: Cause of death. See Sec. 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



Sec. 3.303  Principles relating to service connection.

    (a) General. Service connection connotes many factors but basically 
it means that the facts, shown by evidence, establish that a particular 
injury or disease resulting in disability was incurred coincident with 
service in the Armed Forces, or if preexisting such service, was 
aggravated therein. This may be accomplished by affirmatively showing 
inception or aggravation during service or through the application of 
statutory presumptions. Each disabling condition shown by a veteran's 
service records, or for which he seeks a service connection must be 
considered on the basis of the places, types and circumstances of his 
service as shown by service records, the official history of each 
organization in which he served, his medical records and all pertinent 
medical and lay evidence. Determinations as to service connection will 
be based on review of the entire evidence of record, with due 
consideration to the policy of the Department of Veterans Affairs to 
administer the law under a broad and liberal interpretation consistent 
with the facts in each individual case.
    (b) Chronicity and continuity. With chronic disease shown as such in 
service (or within the presumptive period under Sec. 3.307) so as to 
permit a finding of service connection, subsequent manifestations of the 
same chronic disease at any later date, however remote, are service 
connected, unless clearly attributable to intercurrent causes. This rule 
does not mean that any manifestation of joint pain, any abnormality of 
heart action or heart sounds, any urinary findings of casts, or any 
cough, in service will permit service connection of arthritis, disease 
of the heart, nephritis, or pulmonary disease, first shown as a clearcut 
clinical entity, at some later date. For the showing of chronic disease 
in service there is required a combination of manifestations sufficient 
to identify the disease entity, and sufficient observation to establish 
chronicity at the time, as distinguished from merely isolated findings 
or a diagnosis including the word ``Chronic.'' When the disease identity 
is established (leprosy, tuberculosis, multiple sclerosis, etc.), there 
is no requirement of evidentiary showing of continuity. Continuity of 
symptomatology is required only where the condition noted during service 
(or in the presumptive period) is not, in fact, shown to be chronic or 
where the diagnosis of chronicity may be legitimately questioned. When 
the fact of chronicity in service is not adequately supported, then a 
showing of continuity after discharge is required to support the claim.
    (c) Preservice disabilities noted in service. There are medical 
principles so universally recognized as to constitute fact (clear and 
unmistakable proof), and when in accordance with these principles 
existence of a disability prior to service is established, no additional 
or confirmatory evidence is necessary. Consequently with notation or 
discovery during service of such residual conditions (scars; fibrosis of 
the lungs; atrophies following disease of the central or peripheral 
nervous system; healed fractures; absent, displaced or resected parts of 
organs; supernumerary parts; congenital malformations or hemorrhoidal 
tags or tabs, etc.) with no evidence of the pertinent antecedent active 
disease or injury during service the conclusion must be that they 
preexisted service. Similarly, manifestation of lesions or symptoms of 
chronic disease from date of enlistment, or so close thereto that the 
disease could not have originated in so short a period will establish 
preservice existence thereof. Conditions of an infectious nature are to 
be considered with regard to the circumstances of the infection and if 
manifested in less than the respective incubation periods after 
reporting for duty, they will be held to have preexisted service. In the 
field of mental disorders, personality disorders which are characterized 
by developmental defects or pathological trends

[[Page 233]]

in the personality structure manifested by a lifelong pattern of action 
or behavior, chronic psychoneurosis of long duration or other 
psychiatric symptomatology shown to have existed prior to service with 
the same manifestations during service, which were the basis of the 
service diagnosis, will be accepted as showing preservice origin. 
Congenital or developmental defects, refractive error of the eye, 
personality disorders and mental deficiency as such are not diseases or 
injuries within the meaning of applicable legislation.
    (d) Postservice initial diagnosis of disease. Service connection may 
be granted for any disease diagnosed after discharge, when all the 
evidence, including that pertinent to service, establishes that the 
disease was incurred in service. Presumptive periods are not intended to 
limit service connection to diseases so diagnosed when the evidence 
warrants direct service connection. The presumptive provisions of the 
statute and Department of Veterans Affairs regulations implementing them 
are intended as liberalizations applicable when the evidence would not 
warrant service connection without their aid.

[26 FR 1579, Feb. 24, 1961]



Sec. 3.304  Direct service connection; wartime and peacetime.

    (a) General. The basic considerations relating to service connection 
are stated in Sec. 3.303. The criteria in this section apply only to 
disabilities which may have resulted from service in a period of war or 
service rendered on or after January 1, 1947.
    (b) Presumption of soundness. The veteran will be considered to have 
been in sound condition when examined, accepted and enrolled for 
service, except as to defects, infirmities, or disorders noted at 
entrance into service, or where clear and unmistakable (obvious or 
manifest) evidence demonstrates that an injury or disease existed prior 
thereto and was not aggravated by such service. Only such conditions as 
are recorded in examination reports are to be considered as noted.


(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. The development of evidence in connection with 
claims for service connection will be accomplished when deemed necessary 
but it

[[Page 234]]

should not be undertaken when evidence present is sufficient for this 
determination. In initially rating disability of record at the time of 
discharge, the records of the service department, including the reports 
of examination at enlistment and the clinical records during service, 
will ordinarily suffice. Rating of combat injuries or other conditions 
which obviously had their inception in service may be accomplished 
pending receipt of copy of the examination at enlistment and all other 
service records.
    (d) Combat. Satisfactory lay or other evidence that an injury or 
disease was incurred or aggravated in combat will be accepted as 
sufficient proof of service connection if the evidence is consistent 
with the circumstances, conditions or hardships of such service even 
though there is no official record of such incurrence or aggravation.


(Authority: 38 U.S.C. 1154(b))

    (e) Prisoners of war. Where disability compensation is claimed by a 
former prisoner of war, omission of history or findings from clinical 
records made upon repatriation is not determinative of service 
connection, particularly if evidence of comrades in support of the 
incurrence of the disability during confinement is available. Special 
attention will be given to any disability first reported after 
discharge, especially if poorly defined and not obviously of 
intercurrent origin. The circumstances attendant upon the individual 
veteran's confinement and the duration thereof will be associated with 
pertinent medical principles in determining whether disability 
manifested subsequent to service is etiologically related to the 
prisoner of war experience.
    (f) Post-traumatic stress disorder. Service connection for post-
traumatic stress disorder requires medical evidence diagnosing the 
condition in accordance with Sec. 4.125(a) of this chapter; a link, 
established by medical evidence, between current symptoms and an in-
service stressor; and credible supporting evidence that the claimed in-
service stressor occurred. Although service connection may be 
established based on other in-service stressors, the following 
provisions apply for specified in-service stressors as set forth below:
    (1) 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.
    (2) If the evidence establishes that the veteran was a prisoner-of-
war under the provisions of Sec. 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.
    (3) If a post-traumatic 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 
post-traumatic stress disorder claim that is based on in-service 
personal assault without first advising the claimant that evidence from 
sources other than

[[Page 235]]

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]



Sec. 3.305  Direct service connection; peacetime service before 
January 1, 1947.

    (a) General. The basic considerations relating to service connection 
are stated in Sec. 3.303. The criteria in this section apply only to 
disabilities which may have resulted from service other than in a period 
of war before January 1, 1947.
    (b) Presumption of soundness. A peacetime veteran who has had 
active, continuous service of 6 months or more will be considered to 
have been in sound condition when examined, accepted and enrolled for 
service, except as to defects, infirmities or disorders noted at the 
time thereof, or where evidence or medical judgment, as distinguished 
from medical fact and principles, establishes that an injury or disease 
preexisted service. Any evidence acceptable as competent to indicate the 
time of existence or inception of the condition may be considered. 
Determinations based on medical judgment will take cognizance of the 
time of inception or manifestation of disease or injury following 
entrance into service, as shown by proper service authorities in service 
records, entries or reports. Such records will be accorded reasonable 
weight in consideration of other evidence and sound medical reasoning. 
Opinions may be solicited from Department of Veterans Affairs medical 
authorities when considered necessary.
    (c) Campaigns and expeditions. In considering claims of veterans who 
engaged in combat during campaigns or expeditions satisfactory lay or 
other evidence of incurrence or aggravation in such combat of an injury 
or disease, if consistent with the circumstances, conditions or 
hardships of such service will be accepted as sufficient proof of 
service connection, even when there is no official record of incurrence 
or aggravation. Service connection for such injury or disease may be 
rebutted by clear and convincing evidence to the contrary.

[26 FR 1580, Feb. 24, 1961, as amended at 28 FR 3088, Mar. 29, 1963; 39 
FR 34530, Sept. 26, 1974]



Sec. 3.306  Aggravation of preservice disability.

    (a) General. A preexisting injury or disease will be considered to 
have been aggravated by active military, naval, or air service, where 
there is an increase in disability during such service, unless there is 
a specific finding that the increase in disability is due to the natural 
progress of the disease.


(Authority: 38 U.S.C. 1153)

    (b) Wartime service; peacetime service after December 31, 1946. 
Clear and unmistakable evidence (obvious or manifest) is required to 
rebut the presumption of aggravation where the preservice disability 
underwent an increase in severity during service. This includes medical 
facts and principles which may be considered to determine whether the 
increase is due to the natural progress of the condition. Aggravation 
may not be conceded where the disability underwent no increase in 
severity during service on the basis of all the evidence of record 
pertaining to the manifestations of the disability prior to, during and 
subsequent to service.
    (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

[[Page 236]]

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. The specific 
finding requirement that an increase in disability is due to the natural 
progress of the condition will be met when the available evidence of a 
nature generally acceptable as competent shows that the increase in 
severity of a disease or injury or acceleration in progress was that 
normally to be expected by reason of the inherent character of the 
condition, aside from any extraneous or contributing cause or influence 
peculiar to military service. Consideration will be given to the 
circumstances, conditions, and hardships of service.

[26 FR 1580, Feb. 24, 1961, as amended at 57 FR 59296, Dec. 15, 1992]



Sec. 3.307  Presumptive service connection for chronic, tropical or 

prisoner-of-war related disease, or disease associated with exposure 
to certain herbicide 
          agents; wartime and service on or after January 1, 1947.

    (a) General. A chronic, tropical, prisoner of war related disease, 
or a disease associated with exposure to certain herbicide agents listed 
in Sec. 3.309 will be considered to have been incurred in or aggravated 
by service under the circumstances outlined in this section even though 
there is no evidence of such disease during the period of service. No 
condition other than one listed in Sec. 3.309(a) will be considered 
chronic.
    (1) Service. The veteran must have served 90 days or more during a 
war period or after December 31, 1946. The requirement of 90 days' 
service means active, continuous service within or extending into or 
beyond a war period, or which began before and extended beyond December 
31, 1946, or began after that date. Any period of service is sufficient 
for the purpose of establishing the presumptive service connection of a 
specified disease under the conditions listed in Sec. 3.309(c) and (e).
    (2) Separation from service. For the purpose of paragraph (a)(3) and 
(4) of this section the date of separation from wartime service will be 
the date of discharge or release during a war period, or if service 
continued after the war, the end of the war period. In claims based on 
service on or after January 1, 1947, the date of separation will be the 
date of discharge or release from the period of service on which the 
claim is based.
    (3) Chronic disease. The disease must have become manifest to a 
degree of 10 percent or more within 1 year (for Hansen's disease 
(leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 
years) from the date of separation from service as specified in 
paragraph (a)(2) of this section.
    (4) Tropical disease. The disease must have become manifest to a 
degree of 10 percent or more within 1 year from date of separation from 
service as specified in paragraph (a)(2) of this section, or at a time 
when standard accepted treatises indicate that the incubation period 
commenced during such service. The resultant disorders or diseases 
originating because of therapy administered in connection with a 
tropical disease or as a preventative may also be service connected.


(Authority: 38 U.S.C. 1112)

    (5) Diseases specific as to former prisoners of war. The diseases 
listed in Sec. 3.309(c) shall have become manifest to a degree of 10 
percent or more at any time after discharge or release from active 
service.


(Authority: 38 U.S.C. 1112)

    (6) Diseases associated with exposure to certain herbicide agents. 
(i) For the purposes of this section, the term ``herbicide agent'' means 
a chemical in an herbicide used in support of the United States and 
allied military operations in the Republic of Vietnam during the period 
beginning on January 9, 1962, and ending on May 7, 1975, specifically: 
2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.


(Authority: 38 U.S.C. 1116(a)(4))

    (ii) The diseases listed at Sec. 3.309(e) shall have become 
manifest to a degree

[[Page 237]]

of 10 percent or more at any time after service, except that chloracne 
or other acneform disease consistent with chloracne, porphyria cutanea 
tarda, and acute and subacute 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.


(Authority: 38 U.S.C. 501(a) and 1116(a)(3))

    (b) Evidentiary basis. The factual basis may be established by 
medical evidence, competent lay evidence or both. Medical evidence 
should set forth the physical findings and symptomatology elicited by 
examination within the applicable period. Lay evidence should describe 
the material and relevant facts as to the veteran's disability observed 
within such period, not merely conclusions based upon opinion. The 
chronicity and continuity factors outlined in Sec. 3.303(b) will be 
considered. The diseases listed in Sec. 3.309(a) will be accepted as 
chronic, even though diagnosed as acute because of insidious inception 
and chronic development, except: (1) Where they result from intercurrent 
causes, for example, cerebral hemorrhage due to injury, or active 
nephritis or acute endocarditis due to intercurrent infection (with or 
without identification of the pathogenic micro-organism); or (2) where a 
disease is the result of drug ingestion or a complication of some other 
condition not related to service. Thus, leukemia will be accepted as a 
chronic disease whether diagnosed as acute or chronic. Unless the 
clinical picture is clear otherwise, consideration will be given as to 
whether an acute condition is an exacerbation of a chronic disease.


(Authority: 38 U.S.C. 1112)

    (c) Prohibition of certain presumptions. No presumptions may be 
invoked on the basis of advancement of the disease when first definitely 
diagnosed for the purpose of showing its existence to a degree of 10 
percent within the applicable period. This will not be interpreted as 
requiring that the disease be diagnosed in the presumptive period, but 
only that there be then shown by acceptable medical or lay evidence 
characteristic manifestations of the disease to the required degree, 
followed without unreasonable time lapse by definite diagnosis. 
Symptomatology shown in the prescribed period may have no particular 
significance when first observed, but in the light of subsequent 
developments it may gain considerable significance. Cases in which a 
chronic condition is shown to exist within a short time following the 
applicable presumptive period, but without evidence of manifestations 
within the period, should be developed to determine whether there was 
symptomatology which in retrospect may be identified and evaluated as 
manifestation of the chronic disease to the required 10-percent degree.
    (d) Rebuttal of service incurrence or aggravation. (1) Evidence 
which may be considered in rebuttal of service incurrence of a disease 
listed in Sec. 3.309 will be any evidence of a nature usually accepted 
as competent to indicate the time of existence or inception of disease, 
and medical judgment will be exercised in making determinations relative 
to the effect of intercurrent injury or disease. The expression 
``affirmative evidence to the contrary'' will not be taken to require a 
conclusive showing, but such showing as would, in sound medical 
reasoning and in the consideration of all evidence of record, support a 
conclusion that the disease was not incurred in service. As

[[Page 238]]

to tropical diseases the fact that the veteran had no service in a 
locality having a high incidence of the disease may be considered as 
evidence to rebut the presumption, as may residence during the period in 
question in a region where the particular disease is endemic. The known 
incubation periods of tropical diseases should be used as a factor in 
rebuttal of presumptive service connection as showing inception before 
or after service.
    (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 
Sec. 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 1113 and 1153)

[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]



Sec. 3.308  Presumptive service connection; peacetime service before 
January 1, 1947.

    (a) Chronic disease. There is no provision for presumptive service 
connection for chronic disease as distinguished from tropical diseases 
referred to in paragraph (b) of this section based on peacetime service 
before January 1, 1947.
    (b) Tropical disease. In claims based on peacetime service before 
January 1, 1947, a veteran of 6 months or more service who contracts a 
tropical disease listed in Sec. 3.309(b) or a resultant disorder or 
disease originating because of therapy administered in connection with a 
tropical disease or as a preventative, will be considered to have 
incurred such disability in service when it is shown to exist to the 
degree of 10 percent or more within 1 year after separation from active 
service, or at a time when standard and accepted treatises indicate that 
the incubation period commenced during active service unless shown by 
clear and unmistakable evidence not to have been of service origin. The 
requirement of 6 months or more service means active, continuous 
service, during one or more enlistment periods.

(Authority: 38 U.S.C. 1133)

[39 FR 34530, Sept. 26, 1974]



Sec. 3.309  Disease subject to presumptive service connection.

    (a) Chronic diseases. The following diseases shall be granted 
service connection although not otherwise established as incurred in or 
aggravated by service if manifested to a compensable degree within the 
applicable time limits under Sec. 3.307 following service in a period 
of war or following peacetime service on or after January 1, 1947, 
provided the rebuttable presumption provisions of Sec. 3.307 are also 
satisfied.

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.

[[Page 239]]

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. The following diseases shall be granted 
service connection as a result of tropical service, although not 
otherwise established as incurred in service if manifested to a 
compensable degree within the applicable time limits under Sec. 3.307 
or Sec. 3.308 following service in a period of war or following 
peacetime service, provided the rebuttable presumption provisions of 
Sec. 3.307 are also satisfied.

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. (1) If a 
veteran is a former prisoner of war, the following diseases shall be 
service connected if manifest to a degree of disability of 10 percent or 
more at any time after discharge or release from active military, naval, 
or air service even though there is no record of such disease during 
service, provided the rebuttable presumption provisions of Sec. 3.307 
are also satisfied.
    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.
    (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, or air service even though there is no record of such 
disease during service, provided the rebuttable presumption provisions 
of Sec. 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.

(Authority: 38 U.S.C. 1112(b))
    (d) Diseases specific to radiation-exposed veterans. (1) The 
diseases listed in paragraph (d)(2) of this section shall be

[[Page 240]]

service-connected if they become manifest in a radiation-exposed veteran 
as defined in paragraph (d)(3) of this section, provided the rebuttable 
presumption provisions of Sec. 3.307 of this part are also satisfied.
    (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 means either a veteran who 
while serving on active duty, or an individual who while a member of a 
reserve component of the Armed Forces during a period of active duty for 
training or inactive duty training, participated in a radiation-risk 
activity.
    (ii) The term radiation-risk activity means:
    (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) Service in which the service member was, as part of his or 
her official military duties, present during a total of at least 250 
days before February 1, 1992, on the grounds of a gaseous diffusion 
plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area 
identified as K25 at Oak Ridge, Tennessee, if, during such service the 
veteran:
    (i) Was monitored for each of the 250 days of such service through 
the use of dosimetry badges for exposure at the plant of the external 
parts of veteran's body to radiation; or
    (ii) Served for each of the 250 days of such service in a position 
that had exposures comparable to a job that is or was monitored through 
the use of dosimetry badges; or
    (2) Service before January 1, 1974, on Amchitka Island, Alaska, if, 
during such service, the veteran was exposed to ionizing radiation in 
the performance of duty related to the Long Shot, Milrow, or Cannikin 
underground nuclear tests.
    (3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the 
term ``day'' refers to all or any portion of a calendar day.
    (iii) The term atmospheric detonation includes underwater nuclear 
detonations.
    (iv) The term onsite participation means:
    (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

[[Page 241]]

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 means:
    (A) For Operation TRINITY the period July 16, 1945 through August 6, 
1945.
    (B) For Operation CROSSROADS the period July 1, 1946 through August 
31, 1946.
    (C) For Operation SANDSTONE the period April 15, 1948 through May 
20, 1948.
    (D) For Operation RANGER the period January 27, 1951 through 
February 6, 1951.
    (E) For Operation GREENHOUSE the period April 8, 1951 through June 
20, 1951.
    (F) For Operation BUSTER-JANGLE the period October 22, 1951 through 
December 20, 1951.
    (G) For Operation TUMBLER-SNAPPER the period April 1, 1952 through 
June 20, 1952.
    (H) For Operation IVY the period November 1, 1952 through December 
31, 1952.
    (I) For Operation UPSHOT-KNOTHOLE the period March 17, 1953 through 
June 20, 1953.
    (J) For Operation CASTLE the period March 1, 1954 through May 31, 
1954.
    (K) For Operation TEAPOT the period February 18, 1955 through June 
10, 1955.
    (L) For Operation WIGWAM the period May 14, 1955 through May 15, 
1955.
    (M) For Operation REDWING the period May 5, 1956 through August 6, 
1956.
    (N) For Operation PLUMBBOB the period May 28, 1957 through October 
22, 1957.
    (O) For Operation HARDTACK I the period April 28, 1958 through 
October 31, 1958.
    (P) For Operation ARGUS the period August 27, 1958 through September 
10, 1958.
    (Q) For Operation HARDTACK II the period September 19, 1958 through 
October 31, 1958.
    (R) For Operation DOMINIC I the period April 25, 1962 through 
December 31, 1962.
    (S) For Operation DOMINIC II/PLOWSHARE the period July 6, 1962 
through August 15, 1962.
    (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)(4)(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)(4)(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. If 
a veteran was exposed to an herbicide agent during active military, 
naval, or air service, the following diseases shall be service-connected 
if the requirements of Sec. 3.307(a)(6) are met even though there

[[Page 242]]

is no record of such disease during service, provided further that the 
rebuttable presumption provisions of Sec. 3.307(d) are also satisfied.

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
Chronic lymphocytic leukemia
Multiple myeloma
Non-Hodgkin's lymphoma
Acute and subacute 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 acute and subacute 
peripheral neuropathy means transient peripheral neuropathy that appears 
within weeks or months of exposure to an herbicide agent and resolves 
within two years of the date of onset.

(Authority: 38 U.S.C. 501(a) and 1116)

[41 FR 55873, Dec. 23, 1976 and 47 FR 11656, Mar. 18, 1982, as amended 
at 47 FR 54436, Dec. 3, 1982; 49 FR 47003, Nov. 30, 1984; 53 FR 23236, 
June 21, 1988; 54 FR 26029, June 21, 1989; 57 FR 10426, Mar. 26, 1992; 
58 FR 25564, Apr. 27, 1993; 58 FR 29109, May 19, 1993; 58 FR 41636, Aug. 
5, 1993; 59 FR 5107, Feb. 3, 1994; 59 FR 25329, May 16, 1994; 59 FR 
29724, June 9, 1994; 59 FR 35465, July 12, 1994; 60 FR 31252, June 14, 
1995; 61 FR 57589, Nov. 7, 1996; 65 FR 43700, July 14, 2000; 66 FR 
23168, May 8, 2001; 67 FR 3615, Jan. 25, 2002; 67 FR 67793, Nov. 7, 
2002; 68 FR 42603, July 18, 2003; 68 FR 59542, Oct. 16, 2003; 69 FR 
60089, Oct. 7, 2004]



Sec. 3.310  Proximate results, secondary conditions.

    (a) General. Except as provided in Sec. 3.300(c), disability which 
is proximately due to or the result of a service-connected disease or 
injury shall be service connected. When service connection is thus 
established for a secondary condition, the secondary condition shall be 
considered a part of the original condition.
    (b) Cardiovascular disease. Ischemic heart disease or other 
cardiovascular disease developing in a veteran who has a service-
connected amputation of one lower extremity at or above the knee or 
service-connected amputations of both lower extremities at or above the 
ankles, shall be held to be the proximate result of the service-
connected amputation or amputations.

(Authority: 38 U.S.C. 501, 1110-1131)

[44 FR 50340, Aug. 28, 1979, as amended at 66 FR 18198, Apr. 6, 2001]



Sec. 3.311  Claims based on exposure to ionizing radiation.

    (a) Determinations of exposure and dose--(1) Dose assessment. In all 
claims in which it is established that a radiogenic disease first became 
manifest after service and was not manifest to a compensable degree 
within any applicable presumptive period as specified in Sec. 3.307 or 
Sec. 3.309, and it is contended the disease is a result of exposure to 
ionizing radiation in service, an assessment will be made as to the size 
and nature of the radiation dose or doses. When dose estimates provided 
pursuant to paragraph (a)(2) of this section are reported as a range of 
doses to

[[Page 243]]

which a veteran may have been exposed, exposure at the highest level of 
the dose range reported will be presumed.


(Authority: 38 U.S.C. 501)

    (2) Request for dose information. Where necessary pursuant to 
paragraph (a)(1) of this section, dose information will be requested as 
follows:
    (i) Atmospheric nuclear weapons test participation claims. In claims 
based upon participation in atmospheric nuclear testing, dose data will 
in all cases be requested from the appropriate office of the Department 
of Defense.
    (ii) Hiroshima and Nagasaki occupation claims. In all claims based 
on participation in the American occupation of Hiroshima or Nagasaki, 
Japan, prior to July 1, 1946, dose data will be requested from the 
Department of Defense.
    (iii) Other exposure claims. In all other claims involving radiation 
exposure, a request will be made for any available records concerning 
the veteran's exposure to radiation. These records normally include but 
may not be limited to the veteran's Record of Occupational Exposure to 
Ionizing Radiation (DD Form 1141), if maintained, service medical 
records, and other records which may contain information pertaining to 
the veteran's radiation dose in service. All such records will be 
forwarded to the Under Secretary for Health, who will be responsible for 
preparation of a dose estimate, to the extent feasible, based on 
available methodologies.
    (3) Referral to independent expert. When necessary to reconcile a 
material difference between an estimate of dose, from a credible source, 
submitted by or on behalf of a claimant, and dose data derived from 
official military records, the estimates and supporting documentation 
shall be referred to an independent expert, selected by the Director of 
the National Institutes of Health, who shall prepare a separate 
radiation dose estimate for consideration in adjudication of the claim. 
For purposes of this paragraph:
    (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. In cases described in paragraph (a)(2)(i) and (ii) of 
this section:
    (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. (1) When it is determined:
    (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;

[[Page 244]]

    (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. (1) When a claim is 
forwarded for review pursuant to paragraph (b)(1) of this section, the 
Under Secretary for Benefits shall consider the claim with reference to 
the factors specified in paragraph (e) of this section and may request 
an advisory medical opinion from the Under Secretary for Health.
    (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,

[[Page 245]]

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. (1) Referrals pursuant to 
paragraph (c) of this section shall be to consultants selected by the 
Under Secretary for Health from outside VA, upon the recommendation of 
the Director of the National Cancer Institute. The consultant will be 
asked to evaluate the claim and provide an opinion as to the likelihood 
the disease is a result of exposure as claimed.
    (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. Factors to be considered in 
determining whether a veteran's disease resulted from exposure to 
ionizing radiation in service include:
    (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. The determination of service connection 
will be made under the generally applicable provisions of this part, 
giving due consideration to all evidence of record, including any 
opinion provided by the Under Secretary for Health or an outside 
consultant, and to the evaluations published pursuant to Sec. 1.17 of 
this title. With regard to any issue material to consideration of a 
claim, the provisions of Sec. 3.102 of this title apply.
    (g) Willful misconduct and supervening cause. In no case will 
service connection be established if the disease is due to the veteran's 
own willful misconduct, or if there is affirmative evidence to establish 
that a supervening, nonservice-related condition or event is more likely 
the cause of the disease.

(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]

[[Page 246]]



Sec. 3.312  Cause of death.

    (a) General. The death of a veteran will be considered as having 
been due to a service-connected disability when the evidence establishes 
that such disability was either the principal or a contributory cause of 
death. The issue involved will be determined by exercise of sound 
judgment, without recourse to speculation, after a careful analysis has 
been made of all the facts and circumstances surrounding the death of 
the veteran, including, particularly, autopsy reports.
    (b) Principal cause of death. The service-connected disability will 
be considered as the principal (primary) cause of death when such 
disability, singly or jointly with some other condition, was the 
immediate or underlying cause of death or was etiologically related 
thereto.
    (c) Contributory cause of death. (1) Contributory cause of death is 
inherently one not related to the principal cause. In determining 
whether the service-connected disability contributed to death, it must 
be shown that it contributed substantially or materially; that it 
combined to cause death; that it aided or lent assistance to the 
production of death. It is not sufficient to show that it casually 
shared in producing death, but rather it must be shown that there was a 
causal connection.
    (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 Sec. 3.102. Service 
connection for mental unsoundness in suicide. See Sec. 3.302.

[26 FR 1582, Feb. 24, 1961, as amended at 54 FR 34981, Aug. 23, 1989; 54 
FR 42803, Oct. 18, 1989]



Sec. 3.313  Claims based on service in Vietnam.

    (a) Service in Vietnam. Service in Vietnam includes service in the 
waters offshore, or service in other locations if the conditions of 
service involved duty or visitation in Vietnam.
    (b) Service connection based on service in Vietnam. Service in 
Vietnam during the Vietnam Era together with the development of non-
Hodgkin's lymphoma manifested subsequent to such service is sufficient 
to establish service connection for that disease.

(Authority: 38 U.S.C. 501)

[55 FR 43124, Oct. 26, 1990]



Sec. 3.314  Basic pension determinations.

    (a) Prior to the Mexican border period. While pensions are granted 
based on certain service prior to the Mexican border period, the only 
rating factors in claims therefor are:
    (1) Claims based on service of less than 90 days in the Spanish-
American War require a rating determination as

[[Page 247]]

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 Sec. 3.351 (d).


(Authority: 38 U.S.C. 1502 (b), (c), 512)

    (b) Mexican border period and later war periods. Non-service-
connected disability and death pension may be paid based on service in 
the Mexican border period, World War I, World War II, the Korean 
conflict and the Vietnam era. Rating determinations in such claims will 
be required in the following situations:
    (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 death 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 Sec. 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]



Sec. 3.315  Basic eligibility determinations; dependents, loans, 
education.

    (a) Child over 18 years. A child of a veteran may be considered a 
``child'' after age 18 for purposes of benefits under title 38, United 
States Code (except ch. 19 and sec. 8502(b) of ch. 85), if found by a 
rating determination to have become, prior to age 18, permanently 
incapable of self-support.


(Authority: 38 U.S.C. 101(4)(B))

    (b) Loans. If a veteran of World War II the Korean conflict or the 
Vietnam era had less than 90 days of service, or if a veteran who served 
after July 25,

[[Page 248]]

1947, and prior to June 27, 1950, or after January 31, 1955, and prior 
to August 5, 1964, or after May 7, 1975, has less than 181 days of 
service on active duty as defined in Sec. Sec. 36.4301 and 36.4501, 
eligibility of the veteran for a loan under 38 U.S.C. ch. 37 requires a 
determination that the veteran was discharged or released because of a 
service-connected disability or that the official service department 
records show that he or she had at the time of separation from service a 
service-connected disability which in medical judgment would have 
warranted a discharge for disability. These determinations are subject 
to the presumption of incurrence under Sec. 3.304(b). Determinations 
based on World War II, Korean conflict and Vietnam era service are also 
subject to the presumption of aggravation under Sec. 3.306(b) while 
determination based on service on or after February 1, 1955, and before 
August 5, 1964, or after May 7, 1975, are subject to the presumption of 
aggravation under Sec. 3.306 (a) and (c). The provisions of this 
paragraph are also applicable, regardless of length of service, in 
determining eligibility to the maximum period of entitlement based on 
discharge or release for a service-connected disability. (See also the 
minimum service requirements of Sec. 3.12a.)


(Authority: 38 U.S.C. 3702, 3707)

    (c) Veterans' educational assistance. (1) A determination is 
required as to whether a veteran was discharged or released from active 
duty service because of a service-connected disability (or whether the 
official service department records show that the veteran had at time of 
separation from service a service-connected disability which in medical 
judgment would have warranted discharge for disability) whenever any of 
the following circumstances exist:
    (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 Sec. 
21.7042(a) or Sec. 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 Sec. 21.7136(a) 
or Sec. 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.

[[Page 249]]

    (4) The determinations required by paragraphs (c)(1) through (c)(3) 
of this section are subject to the presumptions of incurrence under 
Sec. 3.304(b) and aggravation under Sec. 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]



Sec. 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 Sec. 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 Sec. 3.303).

[59 FR 42499, Aug. 18, 1994]



Sec. 3.317  Compensation for certain disabilities due to undiagnosed 
illnesses.

    (a)(1) Except as provided in paragraph (c) of this section, VA will 
pay compensation in accordance with chapter 11 of title 38, United 
States Code, to a Persian Gulf veteran who exhibits objective 
indications of a qualifying chronic disability, provided that such 
disability:
    (i) Became manifest either during active military, naval, or air 
service in the Southwest Asia theater of operations during the Persian 
Gulf War, or to a degree of 10 percent or more not later than December 
31, 2006; 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 
means a chronic disability resulting from any of the following (or any 
combination of the following):
    (A) An undiagnosed illness;
    (B) The following medically unexplained chronic multisymptom 
illnesses that are defined by a cluster of signs or symptoms:
    (1) Chronic fatigue syndrome;
    (2) Fibromyalgia;
    (3) Irritable bowel syndrome; or
    (4) Any other illness that the Secretary determines meets the 
criteria in paragraph (a)(2)(ii) of this section for a medically 
unexplained chronic multisymptom illness; or
    (C) Any diagnosed illness that the Secretary determines in 
regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of 
service-connection.
    (ii) For purposes of this section, the term medically unexplained 
chronic multisymptom illness means a diagnosed illness without 
conclusive pathophysiology or etiology, that is characterized by 
overlapping symptoms and signs and has features such as fatigue, pain, 
disability out of proportion to physical findings, and inconsistent 
demonstration of laboratory abnormalities. Chronic multisymptom 
illnesses of partially understood etiology and pathophysiology will not 
be considered medically unexplained.

[[Page 250]]

    (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 chronic disability resulting from an undiagnosed illness 
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 disability referred to in this section shall be considered 
service connected for purposes of all laws of the United States.
    (b) For the purposes of paragraph (a)(1) of this section, signs or 
symptoms which may be manifestations of undiagnosed illness or medically 
unexplained chronic multisymptom illness include, but are not limited 
to:
    (1) Fatigue
    (2) Signs or symptoms involving skin
    (3) Headache
    (4) Muscle pain
    (5) Joint pain
    (6) Neurologic 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) Compensation shall not be paid under this section:
    (1) If there is affirmative evidence that an undiagnosed illness was 
not incurred during active military, naval, or air service in the 
Southwest Asia theater of operations during the Persian Gulf War; or
    (2) If there is affirmative evidence that an undiagnosed illness 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 during the Persian Gulf War and the onset of the 
illness; or
    (3) If there is affirmative evidence that the illness is the result 
of the veteran's own willful misconduct or the abuse of alcohol or 
drugs.
    (d) For purposes of this section:
    (1) The term Persian Gulf veteran means a veteran who served on 
active military, naval, or air service in the Southwest Asia theater of 
operations during the Persian Gulf War.
    (2) The Southwest Asia theater of operations includes Iraq, Kuwait, 
Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, 
Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of 
Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace 
above these locations.

(Authority: 38 U.S.C. 1117)

[60 FR 6665, Feb. 3, 1995, as amended at 62 FR 23139, Apr. 29, 1997; 66 
FR 56615, Nov. 9, 2001; 68 FR 34541, June 10, 2003]



Sec. Sec. 3.318-3.320  [Reserved]

    Cross References: \1\

    Permanent and total disability ratings for pension purposes. See 
Sec. 3.342. Special monthly dependency and indemnity compensation, 
death compensation and pension ratings. See Sec. 3.351. Determination 
of permanent need for regular aid and attendance and ``permanently 
bedridden.'' See Sec. 3.352. Conditions which determine permanent 
incapacity for self-support. See Sec. 3.356.
---------------------------------------------------------------------------

    \1\ 39 FR 5315, Feb. 12, 1974.
---------------------------------------------------------------------------



Sec. 3.321  General rating considerations.

    (a) Use of rating schedule. The 1945 Schedule for Rating 
Disabilities will be used for evaluating the degree of disabilities in 
claims for disability compensation, disability and death pension, and in 
eligibility determinations. The provisions contained in the rating 
schedule will represent as far as can practicably be determined, the 
average

[[Page 251]]

impairment in earning capacity in civil occupations resulting from 
disability.


(Authority: 38 U.S.C. 1155)

    (b) Exceptional cases--(1) Compensation. Ratings shall be based as 
far as practicable, upon the average impairments of earning capacity 
with the additional proviso that the Secretary shall from time to time 
readjust this schedule of ratings in accordance with experience. To 
accord justice, therefore, to the exceptional case where the schedular 
evaluations are found to be inadequate, the Under Secretary for Benefits 
or the Director, Compensation and Pension Service, upon field station 
submission, is authorized to approve on the basis of the criteria set 
forth in this paragraph an extra-schedular evaluation commensurate with 
the average earning capacity impairment due exclusively to the service-
connected disability or disabilities. The governing norm in these 
exceptional cases is: A finding that the case presents such an 
exceptional or unusual disability picture with such related factors as 
marked interference with employment or frequent periods of 
hospitalization as to render impractical the application of the regular 
schedular standards.
    (2) Pension. Where the evidence of record establishes that an 
applicant for pension who is basically eligible fails to meet the 
disability requirements based on the percentage standards of the rating 
schedule but is found to be unemployable by reason of his or her 
disability(ies), age, occupational background and other related factors, 
the following are authorized to approve on an extra-schedular basis a 
permanent and total disability rating for pension purposes: the Veterans 
Service Center Manager; or where regular schedular standards are met as 
of the date of the rating decision, the rating board.
    (3) Effective dates. The effective date of these extra-schedular 
evaluations granting or increasing benefits will be in accordance with 
Sec. 3.400(b)(1) and (2) as to original and reopened claims and in 
accordance with Sec. 3.400(o) in claims for increased benefits.
    (c) Advisory opinion. Cases in which application of the schedule is 
not understood or the propriety of an extra-schedular rating is 
questionable may be submitted to Central Office for advisory opinion.

    Cross References: Effective dates; disability benefits. See Sec. 
3.400(b). Effective dates; increases. See Sec. 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]



Sec. 3.322  Rating of disabilities aggravated by service.

    (a) Aggravation of preservice disability. In cases involving 
aggravation by active service, the rating will reflect only the degree 
of disability over and above the degree of disability existing at the 
time of entrance into active service, whether the particular condition 
was noted at the time of entrance into active service, or whether it is 
determined upon the evidence of record to have existed at that time. It 
is necessary to deduct from the present evaluation the degree, if 
ascertainable, of the disability existing at the time of entrance into 
active service, in terms of the rating schedule except that if the 
disability is total (100 percent) no deduction will be made. If the 
degree of disability at the time of entrance into service is not 
ascertainable in terms of the schedule, no deduction will be made.
    (b) Aggravation of service-connected disability. Where a disease or 
injury incurred in peacetime service is aggravated during service in a 
period of war, or conversely, where a disease or injury incurred in 
service during a period of war is aggravated during peacetime service, 
the entire disability flowing from the disease or injury will be service 
connected based on the war service.

    Cross References: Principles relating to service connection. See 
Sec. 3.303. Aggravation of preservice disability. See Sec. 3.306.

[26 FR 1583, Feb. 24, 1961]



Sec. 3.323  Combined ratings.

    (a) Compensation--(1) Same type of service. When there are two or 
more service-connected compensable disabilities a combined evaluation 
will be made following the tables and rules prescribed in the 1945 
Schedule for Rating Disabilities.

[[Page 252]]

    (2) Wartime and peacetime service. Evaluation of wartime and 
peacetime service-connected compensable disabilities will be combined to 
provide for the payment of wartime rates of compensation. (38 U.S.C. 
1157) Effective July 1, 1973, it is immaterial whether the disabilities 
are wartime or peacetime service-connected since all disabilities are 
compensable under 38 U.S.C. 1114 and 1115 on and after that date.
    (b) Pension--(1) Nonservice-connected disabilities. Evaluation of 
two or more nonservice-connected disabilities not the result of the 
veteran's own willful misconduct will be combined as provided in 
paragraph (a)(1) of this section.
    (2) Service-connected and nonservice-connected disabilities. 
Evaluations for service-connected disabilities may be combined with 
evaluations for disabilities not shown to be service connected and not 
the result of the veteran's own willful misconduct.

    Cross References: ``Willful misconduct.'' See Sec. 3.1(n). Pension. 
See Sec. 3.3. Line of duty and misconduct. See Sec. 3.301. Service 
connection for mental unsoundness in suicide. See Sec. 3.302.

[26 FR 1583, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 61 
FR 20438, May 7, 1996]



Sec. 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]



Sec. 3.325  [Reserved]



Sec. 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 reopened 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 Sec. 
3.655.

[60 FR 52864, Oct. 11, 1995, as amended at 66 FR 45632, Aug. 29, 2001]



Sec. 3.327  Reexaminations.

    (a) General. Reexaminations, including periods of hospital 
observation, will be requested whenever VA determines there is a need to 
verify either the continued existence or the current severity of a 
disability. Generally, reexaminations will be required if it is likely 
that a disability has improved, or if evidence indicates there has been 
a material change in a disability or that the current rating may be 
incorrect. Individuals for whom reexaminations have been authorized and 
scheduled are required to report for such reexaminations. Paragraphs (b) 
and (c) of this section provide general guidelines for requesting 
reexaminations, but shall not be construed as limiting VA's authority to 
request reexaminations, or periods of hospital observation, at any time 
in order to ensure that a disability is accurately rated.


(Authority: 38 U.S.C. 501)


[[Page 253]]


    (b) Compensation cases--(1) Scheduling reexaminations. Assignment of 
a prestabilization rating requires reexamination within the second 6 
months period following separation from service. Following initial 
Department of Veterans Affairs examination, or any scheduled future or 
other examination, reexamination, if in order, will be scheduled within 
not less than 2 years nor more than 5 years within the judgment of the 
rating board, unless another time period is elsewhere specified.
    (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. In nonservice-connected cases in which the 
permanent total disability has been confirmed by reexamination or by the 
history of the case, or with obviously static disabilities, further 
reexaminations will not generally be requested. In other cases further 
examination will not be requested routinely and will be accomplished 
only if considered necessary based upon the particular facts of the 
individual case. In the cases of veterans over 55 years of age, 
reexamination will be requested only under unusual circumstances.

    Cross Reference: Failure to report for VA examination. See Sec. 
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]



Sec. 3.328  lndependent medical opinions.

    (a) General. When warranted by the medical complexity or controversy 
involved in a pending claim, an advisory medical opinion may be obtained 
from one or more medical experts who are not employees of VA. Opinions 
shall be obtained from recognized medical schools, universities, clinics 
or medical institutions with which arrangements for such opinions have 
been made, and an appropriate official of the institution shall select 
the individual expert(s) to render an opinion.
    (b) Requests. A request for an independent medical opinion in 
conjunction with a claim pending at the regional office level may be 
initiated by the office having jurisdiction over the claim, by the 
claimant, or by his or her duly appointed representative. The request 
must be submitted in writing and must set forth in detail the reasons 
why the opinion is necessary. All such requests shall be submitted 
through the Veterans Service Center Manager of the office having 
jurisdiction over the claim, and those requests which in the judgment of 
the Veterans Service Center Manager merit consideration shall be 
referred to the Compensation and Pension Service for approval.
    (c) Approval. Approval shall be granted only upon a determination by 
the Compensation and Pension Service that the issue under consideration 
poses a medical problem of such obscurity or complexity, or has 
generated such controversy in the medical community at large, as to 
justify solicitation of an independent medical opinion. When approval 
has been granted, the Compensation and Pension Service shall obtain the 
opinion. A determination that an independent medical opinion is not 
warranted may be contested only as part of an appeal on the merits of 
the decision rendered on the primary issue by the agency of original 
jurisdiction.
    (d) Notification. The Compensation and Pension Service shall notify 
the

[[Page 254]]

claimant when the request for an independent medical opinion has been 
approved with regard to his or her claim and shall furnish the claimant 
with a copy of the opinion when it is received. If, in the judgment of 
the Secretary, disclosure of the independent medical opinion would be 
harmful to the physical or mental health of the claimant, disclosure 
shall be subject to the special procedures set forth in Sec. 1.577 of 
this chapter.

(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))

[55 FR 18602, May 3, 1990]



Sec. 3.329  [Reserved]



Sec. 3.330  Resumption of rating when veteran subsequently reports 
for Department of Veterans Affairs examination.

    Such ratings will be governed by the provisions of Sec. 3.158, 
``Abandoned Claims,'' and Sec. 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 Sec. 3.655.

[29 FR 3623, Mar. 21, 1964]



Sec. Sec. 3.331-3.339  [Reserved]



Sec. 3.340  Total and permanent total ratings and unemployability.

    (a) Total disability ratings--(1) General. Total disability will be 
considered to exist when there is present any impairment of mind or body 
which is sufficient to render it impossible for the average person to 
follow a substantially gainful occupation. Total disability may or may 
not be permanent. Total ratings will not be assigned, generally, for 
temporary exacerbations or acute infectious diseases except where 
specifically prescribed by the schedule.
    (2) Schedule for rating disabilities. Total ratings are authorized 
for any disability or combination of disabilities for which the Schedule 
for Rating Disabilities prescribes a 100 percent evaluation or, with 
less disability, where the requirements of paragraph 16, page 5 of the 
rating schedule are present or where, in pension cases, the requirements 
of paragraph 17, page 5 of the schedule are met.
    (3) Ratings of total disability on history. In the case of 
disabilities which have undergone some recent improvement, a rating of 
total disability may be made, provided:
    (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. Permanence of total disability will 
be taken to exist when such impairment is reasonably certain to continue 
throughout the life of the disabled person. The permanent loss or loss 
of use of both hands, or of both feet, or of one hand and one foot, or 
of the sight of both eyes, or becoming permanently helpless or bedridden 
constitutes permanent total disability. Diseases and injuries of long 
standing which are actually totally incapacitating will be regarded as 
permanently and totally disabling when the probability of permanent 
improvement under treatment is remote. Permanent total disability 
ratings may not be granted as a result of

[[Page 255]]

any incapacity from acute infectious disease, accident, or injury, 
unless there is present one of the recognized combinations or permanent 
loss of use of extremities or sight, or the person is in the strict 
sense permanently helpless or bedridden, or when it is reasonably 
certain that a subsidence of the acute or temporary symptoms will be 
followed by irreducible totality of disability by way of residuals. The 
age of the disabled person may be considered in determining permanence.
    (c) Insurance ratings. A rating of permanent and total disability 
for insurance purposes will have no effect on ratings for compensation 
or pension.

[26 FR 1585, Feb. 24, 1961, as amended at 46 FR 47541, Sept. 29, 1981]



Sec. 3.341  Total disability ratings for compensation purposes.

    (a) General. Subject to the limitation in paragraph (b) of this 
section, total-disability compensation ratings may be assigned under the 
provisions of Sec. 3.340. However, if the total rating is based on a 
disability or combination of disabilities for which the Schedule for 
Rating Disabilities provides an evaluation of less than 100 percent, it 
must be determined that the service-connected disabilities are 
sufficient to produce unemployability without regard to advancing age.


(Authority: 38 U.S.C. 1155)

    (b) Incarcerated veterans. A total rating for compensation purposes 
based on individual unemployability which would first become effective 
while a veteran is incarcerated in a Federal, State or local penal 
institution for conviction of a felony, shall not be assigned during 
such period of incarceration. However, where a rating for individual 
unemployability exists prior to incarceration for a felony and routine 
review is required, the case will be reconsidered to determine if 
continued eligibility for such rating exists.


(Authority: 38 U.S.C. 5313(c))

    (c) Program for vocational rehabilitation. Each time a veteran is 
rated totally disabled on the basis of individual unemployability during 
the period beginning after January 31, 1985, the Vocational 
Rehabilitation and Employment Service will be notified so that an 
evaluation may be offered to determine whether the achievement of a 
vocational goal by the veteran is reasonably feasible.

(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]



Sec. 3.342  Permanent and total disability ratings for pension purposes.

    (a) General. Permanent total disability ratings for pension purposes 
are authorized for disabling conditions not the result of the veteran's 
own willful misconduct whether or not they are service connected.


(Authority: 38 U.S.C. 1502(a))

    (b) Criteria. In addition to the criteria for determining total 
disability and permanency of total disability contained in Sec. 3.340, 
the following special considerations apply in pension cases:
    (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

[[Page 256]]

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 Sec. 3.321(b).
    (c) Temporary program of vocational rehabilitation training for 
certain pension recipients. (1) When a veteran under age 45 is awarded 
disability pension during the period beginning on February 1, 1985, and 
ending on December 31, 1995, the Vocational Rehabilitation and 
Employment Division will be notified so that an evaluation may be made, 
as provided in Sec. 21.6050, to determine that veteran's potential for 
rehabilitation.
    (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 Sec. 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]



Sec. 3.343  Continuance of total disability ratings.

    (a) General. Total disability ratings, when warranted by the 
severity of the condition and not granted purely because of hospital, 
surgical, or home treatment, or individual unemployability will not be 
reduced, in the absence of clear error, without examination showing 
material improvement in physical or mental condition. Examination 
reports showing material improvement must be evaluated in conjunction 
with all the facts of record, and consideration must be given 
particularly to whether the veteran attained improvement under the 
ordinary conditions of life, i.e., while working or actively seeking 
work or whether the symptoms have been brought under control by 
prolonged rest, or generally, by following a regimen which precludes 
work, and, if the latter, reduction from total disability ratings will 
not be considered pending reexamination after a period of employment (3 
to 6 months).
    (b) Tuberculosis; compensation. In service-connected cases, 
evaluations for active or inactive tuberculosis will be governed by the 
Schedule for Rating Disabilities (part 4 of this chapter). Where in the 
opinion of the rating board the veteran at the expiration of the period 
during which a total rating

[[Page 257]]

is provided will not be able to maintain inactivity of the disease 
process under the ordinary conditions of life, the case will be 
submitted under Sec. 3.321.
    (c) Individual unemployability. (1) In reducing a rating of 100 
percent service-connected disability based on individual 
unemployability, the provisions of Sec. 3.105(e) are for application 
but caution must be exercised in such a determination that actual 
employability is established by clear and convincing evidence. When in 
such a case the veteran is undergoing vocational rehabilitation, 
education or training, the rating will not be reduced by reason thereof 
unless there is received evidence of marked improvement or recovery in 
physical or mental conditions or of employment progress, income earned, 
and prospects of economic rehabilitation, which demonstrates 
affirmatively the veteran's capacity to pursue the vocation or 
occupation for which the training is intended to qualify him or her, or 
unless the physical or mental demands of the course are obviously 
incompatible with total disability. Neither participation in, nor the 
receipt of remuneration as a result of participation in, a therapeutic 
or rehabilitation activity under 38 U.S.C. 1718 shall be considered 
evidence of employability.


(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 Sec. 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]



Sec. 3.344  Stabilization of disability evaluations.

    (a) Examination reports indicating improvement. Rating agencies will 
handle cases affected by change of medical findings or diagnosis, so as 
to produce the greatest degree of stability of disability evaluations 
consistent with the laws and Department of Veterans Affairs regulations 
governing disability compensation and pension. It is essential that the 
entire record of examinations and the medical-industrial history be 
reviewed to ascertain whether the recent examination is full and 
complete, including all special examinations indicated as a result of 
general examination and the entire case history. This applies to 
treatment of intercurrent diseases and exacerbations, including hospital 
reports, bedside examinations, examinations by designated physicians, 
and examinations in the absence of, or without taking full advantage of, 
laboratory facilities and the cooperation of specialists in related 
lines. Examinations less full and complete than those on which payments 
were authorized or continued will not be used as a basis of reduction. 
Ratings on account of diseases subject to temporary or episodic 
improvement, e.g., manic depressive or other psychotic reaction, 
epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, 
bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., 
will not be reduced on any one examination, except in those instances 
where all the evidence of record clearly warrants the conclusion that 
sustained improvement has been demonstrated. Ratings on account of 
diseases which become comparatively symptom free (findings absent) after 
prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart 
disease, etc., will not be reduced on examinations reflecting the 
results of bed rest. Moreover, though material improvement in the 
physical or mental condition is clearly reflected the rating

[[Page 258]]

agency will consider whether the evidence makes it reasonably certain 
that the improvement will be maintained under the ordinary conditions of 
life. When syphilis of the central nervous system or alcoholic 
deterioration is diagnosed following a long prior history of psychosis, 
psychoneurosis, epilepsy, or the like, it is rarely possible to exclude 
persistence, in masked form, of the preceding innocently acquired 
manifestations. Rating boards encountering a change of diagnosis will 
exercise caution in the determination as to whether a change in 
diagnosis represents no more than a progression of an earlier diagnosis, 
an error in prior diagnosis or possibly a disease entity independent of 
the service-connected disability. When the new diagnosis reflects mental 
deficiency or personality disorder only, the possibility of only 
temporary remission of a super-imposed psychiatric disease will be borne 
in mind.
    (b) Doubtful cases. If doubt remains, after according due 
consideration to all the evidence developed by the several items 
discussed in paragraph (a) of this section, the rating agency will 
continue the rating in effect, citing the former diagnosis with the new 
diagnosis in parentheses, and following the appropriate code there will 
be added the reference ``Rating continued pending reexamination ------ 
months from this date, Sec. 3.344.'' The rating agency will determine 
on the basis of the facts in each individual case whether 18, 24 or 30 
months will be allowed to elapse before the reexamination will be made.
    (c) Disabilities which are likely to improve. The provisions of 
paragraphs (a) and (b) of this section apply to ratings which have 
continued for long periods at the same level (5 years or more). They do 
not apply to disabilities which have not become stabilized and are 
likely to improve. Reexaminations disclosing improvement, physical or 
mental, in these disabilities will warrant reduction in rating.

[26 FR 1586, Feb. 24, 1961; 58 FR 53660, Oct. 18, 1993]

                      Ratings for Special Purposes



Sec. 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). Special monthly compensation 
under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of 
use of one hand, one foot, both buttocks, one or more creative organs, 
blindness of one eye having only light perception, deafness of both 
ears, having absence of air and bone conduction, complete organic 
aphonia with constant inability to communicate by speech or, in the case 
of a woman veteran, loss of 25% or more of tissue from a single breast 
or both breasts in combination (including loss by mastectomy or partial 
mastectomy), or following receipt of radiation treatment of breast 
tissue. This special compensation is payable in addition to the basic 
rate of compensation otherwise payable on the basis of degree of 
disability, provided that the combined rate of compensation does not 
exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized 
in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through 
(j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through 
(n) or an intermediate rate under (p) such additional allowance is 
payable for each such anatomical loss or loss of use existing in 
addition to the requirements for the basic rates, provided the total 
does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The 
limitations on the maximum compensation payable under this paragraph are 
independent of and do not preclude payment of additional compensation 
for dependents under 38 U.S.C. 1115, or the special allowance for aid 
and attendance provided by 38 U.S.C. 1114(r).
    (1) Creative organ. (i) Loss of a creative organ will be shown by 
acquired absence of one or both testicles (other than undescended 
testicles) or ovaries or other creative organ. Loss of use of one 
testicle will be established when examination by a board finds that:
    (a) The diameters of the affected testicle are reduced to one-third 
of the

[[Page 259]]

corresponding diameters of the paired normal testicle, or
    (b) The diameters of the affected testicle are reduced to one-half 
or less of the corresponding normal testicle and there is alteration of 
consistency so that the affected testicle is considerably harder or 
softer than the corresponding normal testicle; or
    (c) If neither of the conditions (a) or (b) is met, when a biopsy, 
recommended by a board including a genitourologist and accepted by the 
veteran, establishes the absence of spermatozoa.
    (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. (i) Loss of use of a hand or a foot will be held 
to exist when no effective function remains other than that which would 
be equally well served by an amputation stump at the site of election 
below elbow or knee with use of a suitable prosthetic appliance. The 
determination will be made on the basis of the actual remaining 
function, whether the acts of grasping, manipulation, etc., in the case 
of the hand, or of balance, propulsion, etc., in the case of the foot, 
could be accomplished equally well by an amputation stump with 
prosthesis; for example:
    (a) Extremely unfavorable complete ankylosis of the knee, or 
complete ankylosis of two major joints of an extremity, or shortening of 
the lower extremity of 3\1/2\ inches or more, will constitute loss of 
use of the hand or foot involved.
    (b) Complete paralysis of the external popliteal nerve (common 
peroneal) and consequent footdrop, accompanied by characteristic organic 
changes including trophic and circulatory disturbances and other 
concomitants confirmatory of complete paralysis of this nerve, will be 
taken as loss of use of the foot.
    (3) Both buttocks. (i) Loss of use of both buttocks shall be deemed 
to exist when there is severe damage by disease or injury to muscle 
group XVII, bilateral, (diagnostic code 5317) and additional disability 
making it impossible for the disabled person, without assistance, to 
rise from a seated position and from a stooped position (fingers to toes 
position) and to maintain postural stability (the pelvis upon head of 
femur). The assistance may be done by the person's own hands or arms, 
and, in the matter of postural stability, by a special appliance.


(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. Loss of use or blindness of one eye, having only light 
perception, will be held to exist when there is inability to recognize 
test letters at 1 foot and when further examination of

[[Page 260]]

the eye reveals that perception of objects, hand movements, or counting 
fingers cannot be accomplished at 3 feet. Lesser extents of vision, 
particularly perception of objects, hand movements, or counting fingers 
at distances less than 3 feet is considered of negligible utility.
    (5) Deafness. Deafness of both ears, having absence of air and bone 
conduction will be held to exist where examination in a Department of 
Veterans Affairs authorized audiology clinic under current testing 
criteria shows bilateral hearing loss is equal to or greater than the 
minimum bilateral hearing loss required for a maximum rating evaluation 
under the rating schedule.


(Authority: Pub. L. 88-20)

    (6) Aphonia. Complete organic aphonia will be held to exist where 
there is a disability of the organs of speech which constantly precludes 
communication by speech.


(Authority: Pub. L. 88-22)

    (b) Ratings under 38 U.S.C. 1114(l). The special monthly 
compensation provided by 38 U.S.C. 1114(l) is payable for anatomical 
loss or loss of use of both feet, one hand and one foot, blindness in 
both eyes with visual acuity of 5/200 or less or being permanently 
bedridden or so helpless as to be in need of regular aid and attendance.
    (1) Extremities. The criteria for loss and loss of use of an 
extremity contained in paragraph (a)(2) of this section are applicable.
    (2) Eyes, bilateral. 5/200 visual acuity or less bilaterally 
qualifies for entitlement under 38 U.S.C. 1114(l). However, evaluation 
of 5/200 based on acuity in excess of that degree but less than 10/200 
(Sec. 4.83 of this chapter), does not qualify. Concentric contraction 
of the field of vision beyond 5 degrees in both eyes is the equivalent 
of 5/200 visual acuity.
    (3) Need for aid and attendance. The criteria for determining that a 
veteran is so helpless as to be in need of regular aid and attendance 
are contained in Sec. 3.352(a).
    (4) Permanently bedridden. The criteria for rating are contained in 
Sec. 3.352(a). Where possible, determinations should be on the basis of 
permanently bedridden rather than for need of aid and attendance (except 
where 38 U.S.C. 1114(r) is involved) to avoid reduction during 
hospitalization where aid and attendance is provided in kind.
    (c) Ratings under 38 U.S.C. 1114(m). (1) The special monthly 
compensation provided by 38 U.S.C. 1114(m) is payable for any of the 
following conditions:
    (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. In determining whether there is 
natural elbow or knee action with prosthesis in place, consideration 
will be based on whether use of the proper prosthetic appliance requires 
natural use of the joint, or whether necessary motion is otherwise 
controlled, so that the muscles affecting joint motion, if not already 
atrophied, will become so. If there is no movement in the joint, as in 
ankylosis or complete paralysis, use of prosthesis is not to be 
expected, and the determination will be as though there were one in 
place.
    (3) Eyes, bilateral. With visual acuity 5/200 or less or the vision 
field reduced to 5 degree concentric contraction in both eyes, 
entitlement on account of need for regular aid and attendance will be 
determined on the facts in the individual case.
    (d) Ratings under 38 U.S.C. 1114(n). The special monthly 
compensation provided by 38 U.S.C. 1114(n) is payable for any of the 
conditions which follow: Amputation is a prerequisite except for loss of 
use of both arms and blindness without light perception in both eyes. If 
a prosthesis cannot be worn at the

[[Page 261]]

present level of amputation but could be applied if there were a 
reamputation at a higher level, the requirements of this paragraph are 
not met; instead, consideration will be given to loss of natural elbow 
or knee action.
    (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). (1) The special monthly 
compensation provided by 38 U.S.C. 1114(o) is payable for any of the 
following conditions:
    (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 5/200 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. Paralysis of both lower extremities together with 
loss of anal and bladder sphincter control will entitle to the maximum 
rate under 38 U.S.C. 1114(o), through the combination of loss of use of 
both legs and helplessness. The requirement of loss of anal and bladder 
sphincter control is met even though incontinence has been overcome 
under a strict regimen of rehabilitation of bowel and bladder training 
and other auxiliary measures.
    (3) Combinations. Determinations must be based upon separate and 
distinct disabilities. This requires, for example, that where a veteran 
who had suffered the loss or loss of use of two extremities is being 
considered for the maximum rate on account of helplessness requiring 
regular aid and attendance, the latter must be based on need resulting 
from pathology other than that of the extremities. If the loss or loss 
of use of two extremities or being permanently bedridden leaves the 
person helpless, increase is not in order on account of this 
helplessness. Under no circumstances will the combination of ``being 
permanently bedridden'' and ``being so helpless as to require regular 
aid and attendance'' without separate and distinct anatomical loss, or 
loss of use, of two extremities, or blindness, be taken as entitling to 
the maximum benefit. The fact, however, that two separate and distinct 
entitling disabilities, such as anatomical loss, or loss of use of both 
hands and both feet, result from a common etiological agent, for 
example, one injury or rheumatoid arthritis, will not preclude maximum 
entitlement.
    (4) Helplessness. The maximum rate, as a result of including 
helplessness as one of the entitling multiple disabilities, is intended 
to cover, in addition to obvious losses and blindness, conditions such 
as the loss of use of two extremities with absolute deafness and nearly 
total blindness or with severe multiple injuries producing total 
disability outside the useless extremities, these conditions being 
construed as loss of use of two extremities and helplessness.
    (f) Intermediate or next higher rate. An intermediate rate 
authorized by this paragraph shall be established at the arithmetic 
mean, rounded to the nearest dollar, between the two rates concerned.


(Authority: 38 U.S.C. 1114 (p))

    (1) Extremities. (i) Anatomical loss or loss of use of one foot with 
anatomical loss or loss of use of one leg at a level, or with 
complications preventing natural knee action with prosthesis in place, 
shall entitle to the rate between 38 U.S.C. 1114(l) and (m).

[[Page 262]]

    (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

[[Page 263]]

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. In addition to 
the statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the 
intermediate or next higher rate provisions outlined above, additional 
single permanent disability or combinations of permanent disabilities 
independently ratable at 50 percent or more will afford entitlement to 
the next higher intermediate rate or if already entitled to an 
intermediate rate to the next higher statutory rate under 38 U.S.C. 
1114, but not above the (o) rate. In the application of this 
subparagraph the disability or disabilities independently ratable at 50 
percent or more must be separate and distinct and involve different 
anatomical segments or bodily systems from the conditions establishing 
entitlement under 38 U.S.C. 1114 (l) through (n) or the intermediate 
rate provisions outlined above. The graduated ratings for arrested 
tuberculosis will not be utilized in this connection, but the permanent 
residuals of tuberculosis may be utilized.
    (4) Additional independent 100 percent ratings. In addition to the 
statutory rates payable under 38 U.S.C. 1114 (l) through (n) and the 
intermediate or next higher rate provisions outlined above additional 
single permanent disability independently ratable at 100 percent apart 
from any consideration of individual unemployability will afford 
entitlement to the next higher statutory rate under 38 U.S.C. 1114 or if 
already entitled to an intermediate rate to the next higher intermediate 
rate, but in no event higher than the rate for (o). In the application 
of this subparagraph the single permanent disability independently 
ratable at 100 percent must be separate and distinct and involve 
different anatomical segments or bodily systems from the conditions 
establishing entitlement under 38 U.S.C. 1114 (l) through (n) or the 
intermediate rate provisions outlined above.
    (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.

[[Page 264]]

    (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. Anatomical loss or loss of use, or a 
combination of anatomical loss and loss of use, of three extremities 
shall entitle a veteran to the next higher rate without regard to 
whether that rate is a statutory rate or an intermediate rate. The 
maximum monthly payment under this provision may not exceed the amount 
stated in 38 U.S.C. 1114(p).
    (g) Inactive tuberculosis (complete arrest). The rating criteria for 
determining inactivity of tuberculosis are set out in Sec. 3.375.
    (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)--(1) 
Maximum compensation cases. A veteran receiving the maximum rate under 
38 U.S.C. 1114 (o) or (p) who is in need of regular aid and attendance 
or a higher level of care is entitled to an additional allowance during 
periods he or she is not hospitalized at United States Government 
expense. (See Sec. 3.552(b)(2) as to continuance following admission 
for hospitalization.) Determination of this need is subject to the 
criteria of Sec. 3.352. The regular or higher level aid and attendance 
allowance is payable whether or not the need for regular aid and 
attendance or a higher level of care was a partial basis for entitlement 
to the maximum rate under 38 U.S.C. 1114 (o) or (p), or was based on an 
independent factual determination.
    (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). A veteran receiving 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) who establishes a factual need for 
regular aid and attendance or a higher level of care, is also entitled 
to an additional allowance during periods he or she is not hospitalized 
at United States Government expense. (See Sec. 3.552(b)(2) as to 
continuance following admission for hospitalization.) Determination of 
the factual need for aid and attendance is subject to the criteria of 
Sec. 3.352:
    (3) Amount of the allowance. The amount of the additional allowance 
payable to a veteran in need of regular aid and attendance is specified 
in 38 U.S.C. 1114(r)(1). The amount of the additional allowance payable 
to a veteran in need of a higher level of care is specified in 38 U.S.C. 
1114(r)(2). The higher level aid and attendance allowance authorized by 
38 U.S.C. 1114(r)(2) is payable in lieu of the regular aid and 
attendance allowance authorized by 38 U.S.C. 1114(r)(1).
    (i) Total plus 60 percent, or housebound; 38 U.S.C. 1114(s). The 
special monthly compensation provided by 38 U.S.C. 1114(s) is payable 
where the veteran has a single service-connected disability rated as 100 
percent and,
    (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.

[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]

[[Page 265]]



Sec. 3.351  Special monthly dependency and indemnity compensation, 
death compensation, pension and spouse's compensation ratings.

    (a) General. This section sets forth criteria for determining 
whether:
    (1) Increased pension is payable to a veteran by reason of need for 
aid and attendance or by reason of being house bound.


(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. Need for aid and attendance means 
helplessness or being so nearly helpless as to require the regular aid 
and attendance of another person. The criteria set forth in paragraph 
(c) of this section will be applied in determining whether such need 
exists.
    (c) Aid and attendance; criteria. The veteran, spouse, surviving 
spouse or parent will be considered in need of regular aid and 
attendance if he or she:
    (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 Sec. 3.352(a).


(Authority: 38 U.S.C. 1502(b))

    (d) Housebound, or permanent and total plus 60 percent; disability 
pension. The rate of pension payable to a veteran who is entitled to 
pension under 38 U.S.C. 1521 and who is not in need of regular aid and 
attendance shall be as prescribed in 38 U.S.C. 1521(e) if, in addition 
to having a single permanent disability rated 100 percent disabling 
under the Schedule for Rating Disabilities (not including ratings based 
upon unemployability under Sec. 4.17 of this chapter) the veteran:
    (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. The monthly 
rate of dependency and indemnity compensation payable to a surviving 
spouse who does not qualify for increased dependency and indemnity 
compensation under 38 U.S.C. 1311(c) based on need for regular aid and 
attendance shall be increased by the amount specified in 38 U.S.C. 
1311(d) if the surviving spouse is permanently housebound by reason of 
disability. The ``permanently housebound'' requirement is met when the 
surviving spouse is substantially confined to his or her home (ward or 
clinical areas, if

[[Page 266]]

institutionalized) or immediate premises by reason of disability or 
disabilities which it is reasonably certain will remain throughout the 
surviving spouse's lifetime.


(Authority: 38 U.S.C. 1311(d))

    (f) Housebound; improved pension; death. The annual rate of death 
pension payable to a surviving spouse who does not qualify for an annual 
rate of death pension payable under Sec. 3.23(a)(6) based on need for 
aid and attendance shall be as set forth in Sec. 3.23(a)(7) if the 
surviving spouse is permanently housebound by reason of disability. The 
``permanently housebound'' requirement is met when the surviving spouse 
is substantially confined to his or her home (ward or clinical areas, if 
institutionalized) or immediate premises by reason of disability or 
disabilities which it is reasonably certain will remain throughout the 
surviving spouse's lifetime.

(Authority: 38 U.S.C. 1541(e))

[44 FR 45939, Aug. 6, 1979]



Sec. 3.352  Criteria for determining need for aid and attendance and 
``permanently bedridden.''

    (a) Basic criteria for regular aid and attendance and permanently 
bedridden. The following will be accorded consideration in determining 
the need for regular aid and attendance (Sec. 3.351(c)(3): inability of 
claimant to dress or undress himself (herself), or to keep himself 
(herself) ordinarily clean and presentable; frequent need of adjustment 
of any special prosthetic or orthopedic appliances which by reason of 
the particular disability cannot be done without aid (this will not 
include the adjustment of appliances which normal persons would be 
unable to adjust without aid, such as supports, belts, lacing at the 
back, etc.); inability of claimant to feed himself (herself) through 
loss of coordination of upper extremities or through extreme weakness; 
inability to attend to the wants of nature; or incapacity, physical or 
mental, which requires care or assistance on a regular basis to protect 
the claimant from hazards or dangers incident to his or her daily 
environment. ``Bedridden'' will be a proper basis for the determination. 
For the purpose of this paragraph ``bedridden'' will be that condition 
which, through its essential character, actually requires that the 
claimant remain in bed. The fact that claimant has voluntarily taken to 
bed or that a physician has prescribed rest in bed for the greater or 
lesser part of the day to promote convalescence or cure will not 
suffice. It is not required that all of the disabling conditions 
enumerated in this paragraph be found to exist before a favorable rating 
may be made. The particular personal functions which the veteran is 
unable to perform should be considered in connection with his or her 
condition as a whole. It is only necessary that the evidence establish 
that the veteran is so helpless as to need regular aid and attendance, 
not that there be a constant need. Determinations that the veteran is so 
helpless, as to be in need of regular aid and attendance will not be 
based solely upon an opinion that the claimant's condition is such as 
would require him or her to be in bed. They must be based on the actual 
requirement of personal assistance from others.
    (b) Basic criteria for the higher level aid and attendance 
allowance. (1) A veteran is entitled to the higher level aid and 
attendance allowance authorized by Sec. 3.350(h) in lieu of the regular 
aid and attendance allowance when all of the following conditions are 
met:
    (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)(2) 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) 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

[[Page 267]]

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.
    (3) The term ``under the regular supervision of a licensed health-
care professional'', as used in paragraph (b)(2) 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.
    (4) 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.
    (5) 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.


(Authority: 38 U.S.C. 501, 1114(r)(2))

    (c) Attendance by relative. The performance of the necessary aid and 
attendance service by a relative of the beneficiary or other member of 
his or her household will not prevent the granting of the additional 
allowance.

[41 FR 29680, July 19, 1976, as amended at 44 FR 22720, Apr. 17, 1979; 
60 FR 27409, May 24, 1995]



Sec. 3.353  Determinations of incompetency and competency.

    (a) Definition of mental incompetency. A mentally incompetent person 
is one who because of injury or disease lacks the mental capacity to 
contract or to manage his or her own affairs, including disbursement of 
funds without limitation.
    (b) Authority. (1) Rating agencies have sole authority to make 
official determinations of competency and incompetency for purposes of: 
insurance (38 U.S.C. 1922), and, subject to Sec. 13.56 of this chapter, 
disbursement of benefits. Such determinations are final and binding on 
field stations for these purposes.
    (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 Sec. 13.55 of this chapter; select a 
method of disbursing payment as provided in Sec. 13.56 of this chapter, 
or in the case of a married beneficiary, appoint the beneficiary's 
spouse to receive payments as provided in Sec. 13.57 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 
Sec. 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. Unless the medical evidence is clear, 
convincing and

[[Page 268]]

leaves no doubt as to the person's incompetency, the rating agency will 
make no determination of incompetency without a definite expression 
regarding the question by the responsible medical authorities. 
Considerations of medical opinions will be in accordance with the 
principles in paragraph (a) of this section. Determinations relative to 
incompetency should be based upon all evidence of record and there 
should be a consistent relationship between the percentage of 
disability, facts relating to commitment or hospitalization and the 
holding of incompetency.
    (d) Presumption in favor of competency. Where reasonable doubt 
arises regarding a beneficiary's mental capacity to contract or to 
manage his or her own affairs, including the disbursement of funds 
without limitation, such doubt will be resolved in favor of competency 
(see Sec. 3.102 on reasonable doubt).
    (e) Due process. Whenever it is proposed to make an incompetency 
determination, the beneficiary will be notified of the proposed action 
and of the right to a hearing as provided in Sec. 3.103. Such notice is 
not necessary if the beneficiary has been declared incompetent by a 
court of competent jurisdiction or if a guardian has been appointed for 
the beneficiary based upon a court finding of incompetency. If a hearing 
is requested it must be held prior to a rating decision of incompetency. 
Failure or refusal of the beneficiary after proper notice to request or 
cooperate in such a hearing will not preclude a rating decision based on 
the evidence of record.

(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]



Sec. 3.354  Determinations of insanity.

    (a) Definition of insanity. An insane person is one who, while not 
mentally defective or constitutionally psychopathic, except when a 
psychosis has been engrafted upon such basic condition, exhibits, due to 
disease, a more or less prolonged deviation from his normal method of 
behavior; or who interferes with the peace of society; or who has so 
departed (become antisocial) from the accepted standards of the 
community to which by birth and education he belongs as to lack the 
adaptability to make further adjustment to the social customs of the 
community in which he resides.
    (b) Insanity causing discharge. When a rating agency is concerned 
with determining whether a veteran was insane at the time he committed 
an offense leading to his court-martial, discharge or resignation (38 
U.S.C. 5303(b)), it will base its decision on all the evidence 
procurable relating to the period involved, and apply the definition in 
paragraph (a) of this section.

[26 FR 1589, Feb. 24, 1961]



Sec. 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

[[Page 269]]

testamentary capacity. Therefore, reasonable doubts should be resolved 
in favor of testamentary capacity.

[26 FR 1590, Feb. 24, 1961]



Sec. 3.356  Conditions which determine permanent incapacity for 
self-support.

    (a) Basic determinations. A child must be shown to be permanently 
incapable of self-support by reason of mental or physical defect at the 
date of attaining the age of 18 years.
    (b) Rating criteria. Rating determinations will be made solely on 
the basis of whether the child is permanently incapable of self-support 
through his own efforts by reason of physical or mental defects. The 
question of permanent incapacity for self-support is one of fact for 
determination by the rating agency on competent evidence of record in 
the individual case. Rating criteria applicable to disabled veterans are 
not controlling. Principal factors for consideration are:
    (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 
Sec. 3.314.

[26 FR 1590, Feb. 24, 1961, as amended at 38 FR 871, Jan. 5, 1973]



Sec. 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]



Sec. 3.358  Compensation for disability or death from hospitalization, 

medical or surgical treatment, examinations or vocational rehabilitation 
training (Sec. 
          3.800).

    (a) General. This section applies to claims received by VA before 
October 1, 1997. If it is determined that there is

[[Page 270]]

additional disability resulting from a disease or injury or aggravation 
of an existing disease or injury suffered as a result of 
hospitalization, medical or surgical treatment, examination, or 
vocational rehabilitation training, compensation will be payable for 
such additional disability. For claims received by VA on or after 
October 1, 1997, see Sec. 3.361.
    (b) Additional disability. In determining that additional disability 
exists, the following considerations will govern:
    (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. In determining whether such additional disability 
resulted from a disease or an injury or an aggravation of an existing 
disease or injury suffered as a result of training, hospitalization, 
medical or surgical treatment, or examination, the following 
considerations will govern:
    (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

[[Page 271]]

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]



Sec. 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]



Sec. 3.360  Service-connected health-care eligibility of certain 
persons administratively discharged under other than honorable condition.

    (a) General. The health-care and related benefits authorized by 
chapter 17 of title 38 U.S.C. shall be provided to certain former 
service persons with administrative discharges under other than 
honorable conditions for any disability incurred or aggravated during 
active military, naval, or air service in line of duty.
    (b) Discharge categorization. With certain exceptions such benefits 
shall be furnished for any disability incurred or aggravated during a 
period of service terminated by a discharge under other than honorable 
conditions. Specifically, they may not be furnished for any disability 
incurred or aggravated during a period of service terminated by a bad 
conduct discharge or when one of the bars listed in Sec. 3.12(c) 
applies.
    (c) Eligibility criteria. In making determinations of health-care 
eligibility the same criteria will be used as is now applicable to 
determinations of service incurrence and in line of duty when there is 
no character of discharge bar.

[43 FR 15154, Apr. 11, 1978]



Sec. 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--(1) General. Except as provided 
in paragraph (2), this section applies to claims received by VA on or 
after October 1,

[[Page 272]]

1997. This includes original claims and claims to reopen or otherwise 
readjudicate a previous claim for benefits under 38 U.S.C. 1151 or its 
predecessors. The effective date of benefits is subject to the 
provisions of Sec. 3.400(i). For claims received by VA before October 
1, 1997, see Sec. 3.358.
    (2) Compensated Work Therapy. With respect to claims alleging 
disability or death due to compensated work therapy, this section 
applies to claims that were pending before VA on November 1, 2000, or 
that were received by VA after that date. The effective date of benefits 
is subject to the provisions of Sec. Sec. 3.114(a) and 3.400(i), and 
shall not be earlier than November 1, 2000.
    (b) Determining whether a veteran has an additional disability. To 
determine whether a veteran has an additional disability, VA compares 
the veteran's condition immediately before the beginning of the hospital 
care, medical or surgical treatment, examination, training and 
rehabilitation services, or compensated work therapy (CWT) program upon 
which the claim is based to the veteran's condition after such care, 
treatment, examination, services, or program has stopped. VA considers 
each involved body part or system separately.
    (c) Establishing the cause of additional disability or death. Claims 
based on additional disability or death due to hospital care, medical or 
surgical treatment, or examination must meet the causation requirements 
of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims 
based on additional disability or death due to training and 
rehabilitation services or compensated work therapy program must meet 
the causation requirements of paragraph (d)(3) of this section.
    (1) Actual causation required. To establish causation, the evidence 
must show that the hospital care, medical or surgical treatment, or 
examination resulted in the veteran's additional disability or death. 
Merely showing that a veteran received care, treatment, or examination 
and that the veteran has an additional disability or died does not 
establish cause.
    (2) Continuance or natural progress of a disease or injury. Hospital 
care, medical or surgical treatment, or examination cannot cause the 
continuance or natural progress of a disease or injury for which the 
care, treatment, or examination was furnished unless VA's failure to 
timely diagnose and properly treat the disease or injury proximately 
caused the continuance or natural progress. The provision of training 
and rehabilitation services or CWT program cannot cause the continuance 
or natural progress of a disease or injury for which the services were 
provided.
    (3) Veteran's failure to follow medical instructions. Additional 
disability or death caused by a veteran's failure to follow properly 
given medical instructions is not caused by hospital care, medical or 
surgical treatment, or examination.
    (d) Establishing the proximate cause of additional disability or 
death. The proximate cause of disability or death is the action or event 
that directly caused the disability or death, as distinguished from a 
remote contributing cause.
    (1) Care, treatment, or examination. To establish that carelessness, 
negligence, lack of proper skill, error in judgment, or similar instance 
of fault on VA's part in furnishing hospital care, medical or surgical 
treatment, or examination proximately caused a veteran's additional 
disability or death, it must be shown that the hospital care, medical or 
surgical treatment, or examination caused the veteran's additional 
disability or death (as explained in paragraph (c) of this section); and
    (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 Sec. 17.32 of this 
chapter. Minor deviations from the requirements of Sec. 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., 
given orally or in

[[Page 273]]

writing) or implied under the circumstances specified in Sec. 17.32(b) 
of this chapter, as in emergency situations.
    (2) Events not reasonably foreseeable. Whether the proximate cause 
of a veteran's additional disability or death was an event not 
reasonably foreseeable is in each claim to be determined based on what a 
reasonable health care provider would have foreseen. The event need not 
be completely unforeseeable or unimaginable but must be one that a 
reasonable health care provider would not have considered to be an 
ordinary risk of the treatment provided. In determining whether an event 
was reasonably foreseeable, VA will consider whether the risk of that 
event was the type of risk that a reasonable health care provider would 
have disclosed in connection with the informed consent procedures of 
Sec. 17.32 of this chapter.
    (3) Training and rehabilitation services or compensated work therapy 
program. To establish that the provision of training and rehabilitation 
services or a CWT program proximately caused a veteran's additional 
disability or death, it must be shown that the veteran's participation 
in an essential activity or function of the training, services, or CWT 
program provided or authorized by VA proximately caused the disability 
or death. The veteran must have been participating in such training, 
services, or CWT program provided or authorized by VA as part of an 
approved rehabilitation program under 38 U.S.C. chapter 31 or as part of 
a CWT program under 38 U.S.C. 1718. It need not be shown that VA 
approved that specific activity or function, as long as the activity or 
function is generally accepted as being a necessary component of the 
training, services, or CWT program that VA provided or authorized.
    (e) Department employees and facilities. (1) A 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 is a facility over which the Secretary of 
Veterans Affairs has direct jurisdiction.
    (f) Activities that are not hospital care, medical or surgical 
treatment, or examination furnished by a Department employee or in a 
Department facility. The following are not hospital care, medical or 
surgical treatment, or examination furnished by a Department employee or 
in a Department facility within the meaning of 38 U.S.C. 1151(a):
    (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. The benefit payable under 38 U.S.C. 
1151(a) to an eligible survivor for a veteran's death occurring before 
January 1, 1957, is death compensation. See Sec. Sec. 3.5(b)(2) and 
3.702 for the right to elect dependency and indemnity compensation.
    (2) Death after December 31, 1956. The benefit payable under 38 
U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring 
after December 31, 1956, is dependency and indemnity compensation.

(Authority: 38 U.S.C. 1151)

[69 FR 46433, Aug. 3, 2004]



Sec. 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. This section applies to claims 
received by VA on or after October 1, 1997. This includes original 
claims and claims to reopen or otherwise readjudicate a previous claim 
for benefits under 38 U.S.C. 1151 or its predecessors.
    (b) Offset of veterans' awards of compensation. If a veteran's 
disability is the basis of a judgment under 28 U.S.C. 1346(b) awarded, 
or a settlement or compromise under 28 U.S.C. 2672 or 2677 entered, on 
or after December 1, 1962,

[[Page 274]]

the amount to be offset under 38 U.S.C. 1151(b) from any compensation 
awarded under 38 U.S.C. 1151(a) is the entire amount of the veteran's 
share of the judgment, settlement, or compromise, including the 
veteran's proportional share of attorney fees.
    (c) Offset of survivors' awards of dependency and indemnity 
compensation. If a veteran's death is the basis of a judgment under 28 
U.S.C. 1346(b) awarded, or a settlement or compromise under 28 U.S.C. 
2672 or 2677 entered, on or after December 1, 1962, the amount to be 
offset under 38 U.S.C. 1151(b) from any dependency and indemnity 
compensation awarded under 38 U.S.C. 1151(a) to a survivor is only the 
amount of the judgment, settlement, or compromise representing damages 
for the veteran's death the survivor receives in an individual capacity 
or as distribution from the decedent veteran's estate of sums included 
in the judgment, settlement, or compromise to compensate for harm 
suffered by the survivor, plus the survivor's proportional share of 
attorney fees.
    (d) Offset of structured settlements. This paragraph applies if a 
veteran's disability or death is the basis of a structured settlement or 
structured compromise under 28 U.S.C. 2672 or 2677 entered on or after 
December 1, 1962.
    (1) The amount to be offset. The amount to be offset under 38 U.S.C. 
1151(b) from benefits awarded under 38 U.S.C. 1151(a) is the veteran's 
or survivor's proportional share of the cost to the United States of the 
settlement or compromise, including the veteran's or survivor's 
proportional share of attorney fees.
    (2) When the offset begins. The offset of benefits awarded under 38 
U.S.C. 1151(a) begins the first month after the structured settlement or 
structured compromise has become final that such benefits would 
otherwise be paid.

(Authority: 38 U.S.C. 1151)

[69 FR 46434, Aug. 3, 2004]



Sec. 3.363  Bar to benefits under 38 U.S.C. 1151.

    (a) Claims subject to this section. This section applies to claims 
received by VA on or after October 1, 1997. This includes original 
claims and claims to reopen or otherwise readjudicate a previous claim 
for benefits under 38 U.S.C. 1151 or its predecessors.
    (b) Administrative award, compromises, or settlements, or judgments 
that bar benefits under 38 U.S.C. 1151. If a veteran's disability or 
death was the basis of an administrative award under 28 U.S.C. 1346(b) 
made, or a settlement or compromise under 28 U.S.C. 2672 or 2677 
finalized, before December 1, 1962, VA may not award benefits under 38 
U.S.C. 1151 for any period after such award, settlement, or compromise 
was made or became final. If a veteran's disability or death was the 
basis of a judgment that became final before December 1, 1962, VA may 
award benefits under 38 U.S.C. 1151 for the disability or death unless 
the terms of the judgment provide otherwise.

(Authority: 38 U.S.C. 1151)

[69 FR 46434, Aug. 3, 2004]

           Rating Considerations Relative to Specific Diseases



Sec. 3.370  Pulmonary tuberculosis shown by X-ray in active service.

    (a) Active disease. X-ray evidence alone may be adequate for grant 
of direct service connection for pulmonary tuberculosis. When under 
consideration, all available service department films and subsequent 
films will be secured and read by specialists at designated stations who 
should have a current examination report and X-ray. Resulting 
interpretations of service films will be accorded the same consideration 
for service-connection purposes as if clinically established, however, a 
compensable rating will not be assigned prior to establishment of an 
active condition by approved methods.
    (b) Inactive disease. Where the veteran was examined at time of 
entrance into active service but X-ray was not made, or if made, is not 
available and there was no notation or other evidence of active or 
inactive reinfection type pulmonary tuberculosis existing prior to such 
entrance, it will be assumed that the condition occurred during service 
and direct service connection will be in order for inactive pulmonary 
tuberculosis shown by X-ray evidence during service in the manner 
prescribed in

[[Page 275]]

paragraph (a) of this section, unless lesions are first shown so soon 
after entry on active service as to compel the conclusion, on the basis 
of sound medical principles, that they existed prior to entry on active 
service.
    (c) Primary lesions. Healed primary type tuberculosis shown at the 
time of entrance into active service will not be taken as evidence to 
rebut direct or presumptive service connection for active reinfection 
type pulmonary tuberculosis.

[26 FR 1591, Feb. 24, 1961, as amended at 43 FR 45347, Oct. 2, 1978]



Sec. 3.371  Presumptive service connection for tuberculous disease; 
wartime and service on or after January 1, 1947.

    (a) Pulmonary tuberculosis. (1) Evidence of activity on comparative 
study of X-ray films showing pulmonary tuberculosis within the 3-year 
presumptive period provided by Sec. 3.307(a)(3) will be taken as 
establishing service connection for active pulmonary tuberculosis 
subsequently diagnosed by approved methods but service connection and 
evaluation may be assigned only from the date of such diagnosis or other 
evidence of clinical activity.
    (2) A notation of inactive tuberculosis of the reinfection type at 
induction or enlistment definitely prevents the grant of service 
connection under Sec. 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. Pleurisy with 
effusion with evidence of diagnostic studies ruling out obvious 
nontuberculous causes will qualify as active tuberculosis. The 
requirements for presumptive service connection will be the same as 
those for tuberculous pleurisy.
    (c) Tuberculous pleurisy and endobronchial tuberculosis. Tuberculous 
pleurisy and endobronchial tuberculosis fall within the category of 
pulmonary tuberculosis for the purpose of service connection on a 
presumptive basis. Either will be held incurred in service when 
initially manifested within 36 months after the veteran's separation 
from service as determined under Sec. 3.307(a)(2).
    (d) Miliary tuberculosis. Service connection for miliary 
tuberculosis involving the lungs is to be determined in the same manner 
as for other active pulmonary 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]



Sec. 3.372  Initial grant following inactivity of tuberculosis.

    When service connection is granted initially on an original or 
reopened 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]



Sec. 3.373  [Reserved]



Sec. 3.374  Effect of diagnosis of active tuberculosis.

    (a) Service diagnosis. Service department diagnosis of active 
pulmonary tuberculosis will be accepted unless a board of medical 
examiners, Clinic Director or Chief, Outpatient Service certifies, after 
considering all the evidence, including the favoring or opposing 
tuberculosis and activity, that such diagnosis was incorrect. Doubtful 
cases may be referred to the Chief Medical Director in Central Office.
    (b) Department of Veterans Affairs diagnosis. Diagnosis of active 
pulmonary tuberculosis by the medical authorities of the Department of 
Veterans Affairs as the result of examination, observation, or treatment 
will be accepted for

[[Page 276]]

rating purposes. Reference to the Clinic Director or Chief, Outpatient 
Service, will be in order in questionable cases and, if necessary, to 
the Chief Medical Director in Central Office.
    (c) Private physician's diagnosis. Diagnosis of active pulmonary 
tuberculosis by private physicians on the basis of their examination, 
observation or treatment will not be accepted to show the disease was 
initially manifested after discharge from active service unless 
confirmed by acceptable clinical, X-ray or laboratory studies, or by 
findings of active tuberculosis based upon acceptable hospital 
observation or treatment.

[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]



Sec. 3.375  Determination of inactivity (complete arrest) in tuberculosis.

    (a) Pulmonary tuberculosis. A veteran shown to have had pulmonary 
tuberculosis will be held to have reached a condition of ``complete 
arrest'' when a diagnosis of inactive is made.
    (b) Nonpulmonary disease. Determination of complete arrest of 
nonpulmonary tuberculosis requires absence of evidence of activity for 6 
months. If there are two or more foci of such tuberculosis, one of which 
is active, the condition will not be considered to be inactive until the 
tuberculous process has reached arrest in its entirety.
    (c) Arrest following surgery. Where there has been surgical excision 
of the lesion or organ, the date of complete arrest will be the date of 
discharge from the hospital, or 6 months from the date of excision, 
whichever is later.

[33 FR 16275, Nov. 6, 1968, as amended at 43 FR 45348, Oct. 2, 1978]



Sec. Sec. 3.376-3.377  [Reserved]



Sec. 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 
(Sec. 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 Sec. 3.321(b) if continued short 
hours of employment is recommended or if other evidence warrants 
submission.

[43 FR 45348, Oct. 2, 1978]



Sec. 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]



Sec. 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,

[[Page 277]]

healing without residuals. The determination as to service incurrence or 
aggravation must be on the whole evidentiary showing.

[26 FR 1592, Feb. 24, 1961]



Sec. 3.381  Service connection of dental conditions for treatment 
purposes.

    (a) Treatable carious teeth, replaceable missing teeth, dental or 
alveolar abscesses, and periodontal disease will be considered service-
connected solely for the purpose of establishing eligibility for 
outpatient dental treatment as provided in Sec. 17.161 of this chapter.
    (b) 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. When applicable, the rating activity will 
determine whether the condition is due to combat or other in-service 
trauma, or whether the veteran was interned as a prisoner of war.
    (c) 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.
    (d) 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.
    (e) 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.
    (f) 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]



Sec. 3.382  [Reserved]



Sec. 3.383  Special consideration for paired organs and extremities.

    (a) Entitlement criteria. Compensation is payable for the 
combinations of service-connected and nonservice-connected disabilities 
specified in paragraphs (a)(1) through (a)(5) of this section as if both 
disabilities were service-connected, provided the nonservice-connected 
disability is not the result of the veteran's own willful misconduct.
    (1) Blindness in one eye as a result of service-connected disability 
and blindness in the other eye as a result of nonservice-connected 
disability.
    (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 Sec. 3.385 in the other ear.

[[Page 278]]

    (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. (1) If a veteran receives any 
money or property of value pursuant to an award in a judicial proceeding 
based upon, or a settlement or compromise of, any cause of action for 
damages for the nonservice-connected disability which established 
entitlement under this section, the increased compensation payable by 
reason of this section shall not be paid for any month following the 
month in which any such money or property is received until such time as 
the total amount of such increased compensation that would otherwise 
have been payable equals the total of the amount of any such money 
received and the fair market value of any such property received. The 
provisions of this paragraph do not apply, however, to any portion of 
such increased compensation payable for any period preceding the end of 
the month in which such money or property of value was received.
    (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. Benefits received 
under social security or workers' compensation are not subject to 
recoupment under paragraph (b) of this section even though such benefits 
may have been awarded pursuant to a judicial proceeding.
    (d) Veteran's duty to report. Any person entitled to increased 
compensation under this section shall promptly report to VA the receipt 
of any money or property received pursuant to a judicial proceeding 
based upon, or a settlement or compromise of, any cause of action or 
other right of recovery for damages for the nonservice-connected loss or 
loss of use of the impaired extremity upon which entitlement under this 
section is based. The amount to be reported is the total of the amount 
of money received and the fair market value of property received. 
Expenses incident to recovery, such as attorneys' fees, may not be 
deducted from the amount to be reported.

(Authority 38 U.S.C. 501(a), 1160(a)(3))

    Cross-References: Sec. 3.385 Disability due to impaired hearing; 
Sec. 4.85 Evaluation of hearing impairment.

[53 FR 23236, June 21, 1988, as amended at 69 FR 48149, Aug. 9, 2004]



Sec. 3.384  [Reserved]



Sec. 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



Sec. 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 original claim, a claim reopened after final 
disallowance, or a claim for increase will be the date of receipt of the 
claim or the date entitlement arose, whichever is the later.


(Authority: 38 U.S.C. 5110(a))

    (a) Unless specifically provided. On basis of facts found.
    (b) Disability benefits--(1) Disability pension (Sec. 3.3). An 
award of disability pension may not be effective prior to the date 
entitlement arose.
    (i) Claims received prior to October 1, 1984. Date of receipt of 
claim or date on which the veteran became permanently and totally 
disabled, if claim is filed

[[Page 279]]

within one year from such date, whichever is to the advantage of the 
veteran.
    (ii) Claims received on or after October 1, 1984. (A) Except as 
provided in paragraph (b)(1)(ii)(B) of this section, date of receipt of 
claim.
    (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 Sec. 3.342(a) do 
not apply.
    (2) Disability compensation--(i) Direct service connection (Sec. 
3.4(b)). Day following separation from active service or date 
entitlement arose if claim is received within 1 year after separation 
from service; otherwise, date of receipt of claim, or date entitlement 
arose, whichever is later. Separation from service means separation 
under conditions other than dishonorable from continuous active service 
which extended from the date the disability was incurred or aggravated.
    (ii) Presumptive service connection (Sec. Sec. 3.307, 3.308, 
3.309). Date entitlement arose, if claim is received within 1 year after 
separation from active duty; otherwise date of receipt of claim, or date 
entitlement arose, whichever is later. Where the requirements for 
service connection are met during service, the effective date will be 
the day following separation from service if there was continuous active 
service following the period of service on which the presumption is 
based and a claim is received within 1 year after separation from active 
duty.
    (c) Death benefits--(1) Death in service (38 U.S.C. 5110(j), Pub. L. 
87-825) (Sec. Sec. 3.4(c), 3.5(b)). First day of the month fixed by the 
Secretary concerned as the date of actual or presumed death, if claim is 
received with 1 year after the date the initial report of actual death 
or finding of presumed death was made; however benefits based on a 
report of actual death are not payable for any period for which the 
claimant has received, or is entitled to receive an allowance, 
allotment, or service pay of the veteran.
    (2) Service-connected death after separation from service (38 U.S.C. 
5110(d), Pub. L. 87-825) (Sec. Sec. 3.4(c), 3.5(b)). First day of the 
month in which the veteran's death occurred if claim is received within 
1 year after the date of death; otherwise, date of receipt of claim.
    (3) Nonservice-connected death after separation from service. (i) 
For awards based on claims received prior to October 1, 1984, first day 
of the month in which the veteran's death occurred if claim is received 
within one year after the date of death; otherwise, date of receipt of 
claim.
    (ii) For awards based on claims received on or after October 1, 
1984, 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--(i) Deaths prior to 
January 1, 1957 (Sec. 3.702). Date of receipt of election.
    (ii) Child (38 U.S.C. 5110(e), Pub. L. 87-835). First day of the 
month in which entitlement arose if claim is received within 1 year 
after the date of entitlement; otherwise, date of receipt of claim.
    (iii) Deaths on or after May 1, 1957 (in-service waiver cases) 
(Sec. Sec. 3.5(b)(3) and 3.702). Date of receipt of election. (See 
Sec. 3.114(a)).
    (d) [Reserved]
    (e) Apportionment (Sec. Sec. 3.450 through 3.461, 3.551). On 
original claims, in accordance with the facts found. On other than 
original claims from the first day

[[Page 280]]

of the month following the month in which:
    (1) Claim is received for apportionment of a veteran's award, except 
that where payments to him (her) have been interrupted, apportionment 
will be effective the day following date of last payment if a claim for 
apportionment is received within 1 year after that date;
    (2) Notice is received that a child included in the surviving 
spouse's award is not in the surviving spouse's custody, except that 
where payments to the surviving spouse have been interrupted, 
apportionment will be effective the day following date of last payment 
if such notice is received within 1 year after that date.
    (f) Federal employees' compensation cases (Sec. 3.708). Date 
authorized by applicable law, subject to any payments made by the Office 
of Workers' Compensation Programs under the Federal Employees' 
Compensation Act over the same period of time.
    (g) Correction of military records (38 U.S.C. 5110(i); Pub. L. 87-
825). Where entitlement is established because of the correction, change 
or modification of a military record, or of a discharge or dismissal, by 
a Board established under 10 U.S.C. 1552 or 1553, or because of other 
corrective action by competent military naval, or air authority, the 
award will be effective from the latest of these dates:
    (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 (Sec. 3.105). (1) As to decisions not 
final prior to receipt of an application for reconsideration or to 
reopen, or prior to reconsideration on Department of Veterans Affairs 
initiative, the date from which benefits would have been payable if the 
former decision had been favorable.
    (2) As to decisions which have become final (by appellate decision 
or failure to timely initiate and perfect an appeal) prior to receipt of 
an application for reconsideration or to reopen, the date of receipt of 
such application or the date entitlement arose, whichever is later.
    (3) As to decisions which have become final (by appellate decision 
or failure to timely initiate and perfect an appeal) and reconsideration 
is undertaken solely on Department of Veterans Affairs 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. (38 U.S.C. 
5110(c), (d); Public Law 87-825; Sec. Sec. 3.358, 3.361, and 3.800.)--
(1) Disability. Date injury or aggravation was suffered if claim is 
received within 1 year after that date; otherwise, date of receipt of 
claim.
    (2) Death. First day of month in which the veteran's death occurred 
if a claim is received within 1 year following the date of death; 
otherwise, date of receipt of claim.
    (j) Election of Department of Veterans Affairs benefits (Sec. 3.700 
series). (1) Unless otherwise provided, the date of receipt of election, 
subject to prior payments.
    (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

[[Page 281]]

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 (Sec. 3.105). Date from which benefits would have been 
payable if the corrected decision had been made on the date of the 
reversed decision.
    (l) Foreign residence. (See Sec. 3.653).
    (m) Forfeiture (Sec. Sec. 3.901, 3.902). Day following date of last 
payment on award to payee who forfeited.
    (n) Guardian. Day following date of last payment to prior payee or 
fiduciary.

    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; Sec. Sec. 3.109, 3.156, 3.157)--(1) General. Except as 
provided in paragraph (o)(2) of this section and Sec. 3.401(b), date of 
receipt of claim or date entitlement arose, whichever is later. A 
retroactive increase or additional benefit will not be awarded after 
basic entitlement has been terminated, such as by severance of service 
connection.
    (2) Disability compensation. Earliest date as of which it is 
factually ascertainable that an increase in disability had occurred if 
claim is received within 1 year from such date otherwise, date of 
receipt of claim.
    (p) Liberalizing laws and Department of Veterans Affairs issues. See 
Sec. 3.114.
    (q) New and material evidence (Sec. 3.156)--(1) Other than service 
department records--(i) Received within appeal period or prior to 
appellate decision. The effective date will be as though the former 
decision had not been rendered. See Sec. Sec. 20.1103, 20.1104 and 
20.1304(b)(1) of this chapter.
    (ii) Received after final disallowance. Date of receipt of new claim 
or date entitlement arose, whichever is later.
    (2) Service department records. To agree with evaluation (since it 
is considered these records were lost or mislaid) or date of receipt of 
claim on which prior evaluation was made, whichever is later, subject to 
rules on original claims filed within 1 year after separation from 
service. See paragraph (g) of this section as to correction of military 
records.
    (r) Reopened claims. (Sec. Sec. 3.109, 3.156, 3.157, 3.160(e)) Date 
of receipt of claim or date entitlement arose, whichever is later, 
except as provided in Sec. 20.1304(b)(1) of this chapter.


(Authority: 38 U.S.C. 501)

    (s) Renouncement (Sec. 3.106). Except as provided in Sec. 
3.106(c), date of receipt of new claim.
    (t) Whereabouts now known. (See Sec. 3.158(c).)
    (u) Void, annulled or terminated marriage of a child (38 U.S.C. 5110 
(a), (k), (l); Pub. L. 93-527, 88 Stat. 1702; Sec. 3.55)--(1) Void. 
Date the parties ceased to cohabit or date of receipt of claim, 
whichever is later.
    (2) Annulled. Date the decree of annulment became final if claim is 
filed within 1 year after that date; otherwise date of receipt of claim.
    (3) Death. Date of death if claim is filed within 1 year after that 
date; otherwise date of receipt of claim. Benefits are not payable 
unless the provisions of Sec. 3.55(b) of this part are met.
    (4) Divorce. Date the decree became final if claim is filed within 1 
year of that date; otherwise date of receipt of claim. Benefits are not 
payable unless the provisions of Sec. 3.55(b) of this part are met.
    (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; 
Sec. 3.55)--(1) Void. Date the parties ceased to cohabit or date of 
receipt of claim, whichever is the later.
    (2) Annulled. Date the decree of annulment became final if claim is 
filed within 1 year after that date; otherwise date of receipt of claim.

[[Page 282]]

    (3) Death. Date of death if claim is filed within 1 year after that 
date; otherwise date of receipt of claim. Benefits are not payable 
unless the provisions of Sec. 3.55(a) of this part are met.
    (4) Divorce. Date the decree became final if claim is filed within 1 
year after that date; otherwise date of receipt of claim. Benefits are 
not payable unless the provisions of Sec. 3.55(a) of this part are met.
    (w) Termination of relationship or conduct resulting in restriction 
on payment of benefits (38 U.S.C. 5110(m), effective January 1, 1971; 
Sec. Sec. 3.50(b)(2) and 3.55).
    Date of receipt of application filed after termination of 
relationship and after December 31, 1970. Benefits are not payable 
unless the provisions of Sec. 3.55(a), as applicable, are met.
    (x) Effective date of determination of incompetency (Sec. 3.353). 
Date of rating of incompetency. (Not applicable to an incompetency 
determination made for insurance purposes under 38 U.S.C. 1922).
    (y) Effective date of determination restoring competency (Sec. 
3.353). Date shown by evidence of record that competency was regained.
    (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). 
(1) Original claim: Date of receipt of claim or date entitlement arose, 
whichever is later, or as otherwise provided under this section (e.g., 
paragraph (b)(1) of this section) except that no benefits shall be 
awarded for any period prior to November 23, 1977.
    (2) Reopened claim: Latest of the following dates:
    (i) November 23, 1977.
    (ii) Date entitlement arose.
    (iii) One year prior to date of receipt of reopened claim.

[26 FR 1593, Feb. 24, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 
3.400, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 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. (1) Except as 
provided in Sec. 3.400(o)(2), the date of receipt of claim or date 
entitlement arose, whichever is later. However, when an award of pension 
or compensation based on an original or reopened claim is effective for 
a period prior to the date of receipt of the claim, any additional 
pension or compensation payable by reason of need for aid and attendance 
or housebound status shall also be awarded for any part of the award's 
retroactive period for which entitlement to the additional benefit is 
established.


(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 
reopened 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. Latest of the 
following dates:
    (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))


[[Page 283]]


    (4) Date of commencement of veteran's award. (Other increases, see 
Sec. 3.400(o). For school attendance see Sec. 3.667.)


(Authority: 38 U.S.C. 5110 (f), (n))

    (c) Divorce of veteran and spouse. See Sec. 3.501(d).
    (d) Institutional awards (Sec. 3.852)--(1) Chief officer of non-
Department of Veterans Affairs hospital or institution. From first day 
of month in which award is approved or day following date of last 
payment to veteran, whichever is later.

    Note: If apportionment under Sec. Sec. 3.452(c) and 3.454 is in 
order or payment under Sec. 3.850(a), Personal Funds of Patients 
account will not be set up but difference withheld for dependents.

    (2) Director of a Department of Veterans Affairs medical center or 
domiciliary. From day following date of last payment to veteran where 
veteran previously received payments. On initial or resumed payments 
from date of entitlement to benefits subject to any amounts payable to 
or withheld for apportionments for dependents.
    (e) Retirement pay (Sec. 3.750)--(1) Election. Date of entitlement 
if timely filed. Subject to prior payments of retirement pay.
    (2) Waiver. Day following date of discontinuance or reduction of 
retirement pay.
    (3) Reelection. Day the reelection is received by the Department of 
Veterans Affairs.
    (f) Service pension (Sec. 3.3(a)). Date of receipt of claim.
    (g) Tuberculosis, special compensation for arrested. As of the date 
the graduated evaluation of the disability or compensation for that 
degree of disablement combined with other service-connected disabilities 
would provide compensation payable at a rate less than $67. See Sec. 
3.350(g).
    (h) Temporary increase ``General Policy in Rating,'' 1945 Schedule 
for Rating Disabilities--(1) Section 4.29 of this chapter. Date of 
entrance into hospital, after 21 days of continuous hospitalization for 
treatment.
    (2) Section 4.30 of this chapter. Date of entrance into hospital, 
after discharge from hospitalization (regular or release to non-bed 
care).
    (i) Increased disability pension based on attainment of age 78. 
First day of the month during which veteran attains 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]



Sec. 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 Sec. 3.5(e). Commencing date of surviving spouse's award. 
See Sec. 3.400(c).
    (b) Legal surviving spouse entitled. See Sec. 3.657.
    (c) Aid and attendance and housebound benefits. (1) Date of receipt 
of claim or date entitlement arose whichever is later. However, when an 
award of dependency and indemnity compensation (DIC) or pension based on 
an original or reopened claim is effective for a period prior to date of 
receipt of the claim, any additional DIC or pension payable to the 
surviving spouse by reason of need for aid and attendance or housebound 
status shall also be awarded for any part of the award's retroactive 
period for which entitlement to the additional benefit is established.


(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.

(Authority: 38 U.S.C. 501)

[45 FR 34887, May 23, 1980]



Sec. 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

[[Page 284]]

of such child, will be effective as follows:
    (1) Permanently incapable of selfsupport (Sec. 3.57(a)(3)). In 
original claims, date fixed by Sec. Sec. 3.400(b) or (c) or 3.401(b). 
In claims for continuation of payments, 18th birthday if the condition 
is claimed prior to or within 1 year after that date; otherwise from 
date of receipt of claim.
    (2) Majority (Sec. 3.854). Direct payment to child if competent, 
from date of majority or, date of last payment, whichever is the earlier 
date.
    (3) Posthumous child. Date of child's birth if proof of birth is 
received within 1 year of that date, or if notice of the expected or 
actual birth meeting the requirements of an informal claim, is received 
within 1 year after the veteran's death; otherwise, date of claim.


(Authority: 38 U.S.C. 5110(n))

    (4) School attendance. (See Sec. 3.667.)
    (5) Adopted child. Date of adoption either interlocutory or final or 
date of adoptive placement agreement, but not earlier than the date from 
which benefits are otherwise payable.
    (b) Monetary allowance under 38 U.S.C. 1805 for an individual 
suffering from spina bifida who is a child of a Vietnam veteran. An 
award of the monetary allowance under 38 U.S.C. 1805 to or for an 
individual suffering from spina bifida who is a child of a Vietnam 
veteran will be effective either date of birth if claim is received 
within one year of that date, or date of claim, but not earlier than 
October 1, 1997.


(Authority: 38 U.S.C. 1822, 5110; sec. 422(c), Pub. L. 104-204, 110 
Stat. 2926)

    (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. Except 
as provided in Sec. 3.114(a) or Sec. 3.815(i), an award of the 
monetary allowance under 38 U.S.C. 1815 to or for an individual with one 
or more covered birth defects who is a child of a woman Vietnam veteran 
will be effective as of the date VA received the claim (or the date of 
birth if the claim is received within one year of that date), the date 
entitlement arose, or December 1, 2001, whichever is latest.


(Authority: 38 U.S.C. 1815, 1822, 1824, 5110)

(Authority: 38 U.S.C. 1806, 5110(n); sec. 422(c), Pub. L. 104-204, 110 
Stat. 2926)

[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]



Sec. 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 reopened 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]



Sec. 3.405  Filipino veterans; benefits at the full-dollar rate.

    For veterans who met the eligibility requirements in Sec. 3.42 on 
October 27, 2000, and maintained such eligibility continuously from that 
date to the date of an administrative determination of entitlement, the 
effective date of awards of compensation at the full-dollar rate will be 
October 27, 2000. For all other veterans, awards of compensation for 
Filipino veterans under Sec. 3.42 will be effective on the latest of 
the dates stated in this section:
    (a) Date entitlement arose;

[[Page 285]]

    (b) Date on which the veteran first met the residency and 
citizenship/ permanent-resident-alien status requirements in Sec. 3.42, 
if VA receives evidence of this within 1 year of that date;
    (c) Effective date of the rating establishing service connection, 
provided VA receives evidence that the veteran meets the residency and 
citizenship/ permanent-resident-alien status requirements in Sec. 3.42 
within 1 year of notification of such rating action;
    (d) Date the veteran returned to the United States after absence of 
more than 60 consecutive days; or
    (e) First day of the year following the year in which the veteran 
was absent from the United States for a total of 183 days or more, or 
the first day after that date that the veteran returns to the United 
States.

(Authority: 38 U.S.C. 107)

[66 FR 66768, Dec. 27, 2001]

                             Apportionments



Sec. 3.450  General.

    (a)(1) All or any part of the pension, compensation, or emergency 
officers' retirement pay payable on account of any veteran may be 
apportioned.
    (i) On behalf of his or her spouse, children, or dependent parents 
if the veteran is incompetent and is being furnished hospital treatment, 
institutional, or domiciliary care by the United States, or any 
political subdivision thereof.
    (ii) If the veteran is not residing with his or her spouse, or if 
the veteran's children are not residing with the veteran and the veteran 
is not reasonably discharging his or her responsibility for the spouse's 
or children's support.
    (2) Where any of the children of a deceased veteran are not living 
with the veteran's surviving spouse, the pension, compensation, or 
dependency and indemnity compensation otherwise payable to the surviving 
spouse may be apportioned.


(Authority: 38 U.S.C. 5307)

    (b) Except as provided in Sec. 3.458(e), no apportionment of 
disability or death benefits will be made or changed solely because a 
child has entered active duty with the air, military, or naval services 
of the United States.
    (c) No apportionment will be made where the veteran, the veteran's 
spouse (when paid ``as wife'' or ``as husband''), surviving spouse, or 
fiduciary is providing for dependents. The additional benefits for such 
dependents will be paid to the veteran, spouse, surviving spouse, or 
fiduciary.
    (d) Any amounts payable for children under Sec. Sec. 3.459, 3.460 
and 3.461 will be equally divided among the children.
    (e) The amount payable for a child in custody of and residing with 
the surviving spouse shall be paid to the surviving spouse. Amounts 
payable to a surviving spouse for a child in the surviving spouse's 
custody but residing with someone else may be apportioned if the 
surviving spouse is not reasonably contributing to the child's support.
    (f) Prior to release of any amounts the relationship of the claimant 
and the dependency of a parent will be fully developed, and the 
necessary evidence secured.
    (g) The provisions of Sec. 3.460 are applicable where the surviving 
spouse is entitled to a higher rate of pension under the circumstances 
described in that section.

[26 FR 1594, Feb. 24, 1961, as amended at 26 FR 7266, Aug. 11, 1961; 27 
FR 6974, July 24, 1962; 32 FR 13226, Sept. 19, 1967; 37 FR 6678, Apr. 1, 
1972; 44 FR 45939, Aug. 6, 1979]



Sec. 3.451  Special apportionments.

    Without regard to any other provision regarding apportionment where 
hardship is shown to exist, pension, compensation, emergency officers' 
retirement pay, or dependency and indemnity compensation may be 
specially apportioned between the veteran and his or her dependents or 
the surviving spouse and children on the basis of the facts in the 
individual case as long as it does not cause undue hardship to the other 
persons in interest, except as to those cases covered by Sec. 3.458(b) 
and (c). In determining the basis for special apportionment, 
consideration will be given such factors as: Amount of Department of 
Veterans Affairs benefits payable; other resources and income of the 
veteran and those

[[Page 286]]

dependents in whose behalf apportionment is claimed; and special needs 
of the veteran, his or her dependents, and the apportionment claimants. 
The amount apportioned should generally be consistent with the total 
number of dependents involved. Ordinarily, apportionment of more than 50 
percent of the veteran's benefits would constitute undue hardship on him 
or her while apportionment of less than 20 percent of his or her 
benefits would not provide a reasonable amount for any apportionee.

[44 FR 45940, Aug. 6, 1979]



Sec. 3.452  Situations when benefits may be apportioned.

    Veterans benefits may be apportioned:
    (a) If the veteran is not residing with his or her spouse or his or 
her children and a claim for apportionment is filed for or on behalf of 
the spouse or children.
    (b) Pending the appointment of a guardian or other fiduciary.
    (c)(1) Where an incompetent veteran without a fiduciary is receiving 
institutional care by the United States or a political subdivision, his 
or her benefit may be apportioned for a spouse or child, or, except as 
provided in paragraph (c)(2), for a dependent parent, unless such 
benefit is paid to a spouse (``as wife'' or ``as husband'') for the use 
of the veteran and his or her dependents.
    (2) Where a married veteran is receiving section 306 or improved 
pension and the amount payable is reduced under Sec. 3.551(c) because 
of hospitalization, an apportionment may be paid to the veteran's spouse 
as provided in Sec. 3.454(b).


(Authority: 38 U.S.C. 501(a); 5307; 5503(a))

    (d) Where additional compensation is payable on behalf of a parent 
and the veteran or his or her guardian neglects or refuses to contribute 
such an amount to the support of the parent the additional compensation 
will be paid to the parent upon receipt of a claim.

    Cross References: Institutional awards. See Sec. 3.852. 
Disappearance of veteran. See Sec. 3.656. Reduction because of 
hospitalization. See Sec. 3.551. Penal institutions. See Sec. 3.666.

[26 FR 7266, Aug. 11, 1961, as amended at 27 FR 6974, July 24, 1962; 40 
FR 21724, May 19, 1975; 44 FR 45940, Aug. 6, 1979; 66 FR 48560, Sept. 
21, 2001; 68 FR 34542, June 10, 2003]



Sec. 3.453  Veterans compensation or service pension or retirement pay.

    Rates of apportionment of disability compensation, service pension 
or retirement pay will be determined under Sec. 3.451.

[26 FR 7266, Aug. 11, 1961]



Sec. 3.454  Veterans disability pension.

    Apportionment of disability pension will be as follows:
    (a) Where a veteran with spouse, or child is incompetent and without 
legal fiduciary and is maintained in an institution by the United States 
or any political subdivision thereof, $25 monthly will be paid as an 
institutional award to the Director of a Department of Veterans Affairs 
medical center or chief officer of a non-Department of Veterans Affairs 
institution for the use of the veteran, and the balance will be paid to 
the dependent or dependents. If the veteran has no spouse, or child but 
has a dependent parent, apportionment will be in accordance with Sec. 
3.451.
    (b)(1) Where the amount of section 306 pension payable to a married 
veteran under 38 U.S.C. 1521(b), as in effect on December 31, 1978, is 
reduced to $50 monthly under Sec. 3.551(c), an apportionment may be 
made to such veteran's spouse upon an affirmative showing of hardship. 
The amount of the apportionment generally will be the difference between 
$50 and the total amount of pension payable on December 31, 1978.


(Authority: 38 U.S.C. 5503(a))

    (2) Where the amount of improved pension payable to a married 
veteran under 38 U.S.C. 1521(b) is reduced to $60 monthly under Sec. 
3.551(d) or (e)(2), an apportionment may be made to such veteran's 
spouse upon an affirmative showing of hardship. The amount of the 
apportionment generally will be the difference between $50 and the rate 
payable if pension was being paid under

[[Page 287]]

38 U.S.C. 1521(c) including the additional amount payable under 38 
U.S.C. 1521(e) if the veteran is so entitled.


(Authority: 38 U.S.C. 5503(a))

    (3) Where the amount of improved pension payable to a married 
veteran under 38 U.S.C. 1521(b) is reduced to $90 monthly under Sec. 
3.551(e)(1) an apportionment may be made to such veteran's spouse upon 
an affirmative showing of hardship. The amount of the apportionment 
generally will be the difference between $90 and the rate payable if 
pension was being paid under 38 U.S.C. 1521(c) including the additional 
amount payable under 38 U.S.C. 1521(e) if the veteran is so entitled.


(Authority: 38 U.S.C. 5503(a))

[40 FR 36329, Aug. 20, 1975, as amended at 44 FR 45940, Aug. 6, 1979; 56 
FR 65850, 65851, Dec. 19, 1991; 57 FR 7847, Mar. 4, 1992; 68 FR 34542, 
June 10, 2003]



Sec. 3.458  Veteran's benefits not apportionable.

    Veteran's benefits will not be apportioned:
    (a) Where the total benefit payable to the disabled person does not 
permit payment of a reasonable amount to any apportionee.
    (b) Where the spouse of the disabled person has been found guilty of 
conjugal infidelity by a court having proper jurisdiction.
    (c) For purported or legal spouse of the veteran if it has been 
determined that he or she has lived with another person and held herself 
or himself out openly to the public to be the spouse of such other 
person, except where such relationship was entered into in good faith 
with a reasonable basis (for example trickery on the part of the 
veteran) for the spouse believing that the marriage to the veteran was 
legally terminated. No apportionment to the spouse will thereafter be 
made unless there has been a reconciliation and later estrangement.
    (d) Where the child of the disabled person has been legally adopted 
by another person, except the additional compensation payable for the 
child.
    (e) Where a child enters the active military, air, or naval service, 
any additional amount will be paid to the veteran unless such child is 
included in an existing apportionment to an estranged spouse. No 
adjustment in the apportioned award will be made based on the child's 
entry into service.
    (f)(1) For the spouse, child, father or mother of a disabled 
veteran, where forfeiture was declared prior to September 2, 1959, if 
the dependent is determined by the Department of Veterans Affairs to 
have been guilty of mutiny, treason, sabotage, or rendering assistance 
to an enemy of the United States or its allies.
    (2) For any dependent of a disabled veteran, or surviving spouse 
where forfeiture of benefits by a person primarily entitled was declared 
after September 1, 1959, by reason of fraud, treasonable acts, or 
subversive activities.


(Authority: 38 U.S.C. 6103(b); 6104(c); 6105(a))

    (g) Until the estranged spouse of a veteran files claim for an 
apportioned share. If there are any children of the veteran not in his 
or her custody an apportionment will not be authorized unless and until 
a claim for an apportioned share is filed in their behalf.

[26 FR 7266, Aug. 11, 1961, as amended at 40 FR 21724, May 19, 1975; 44 
FR 45940, Aug. 6, 1979]



Sec. 3.459  Death compensation.

    (a) Death compensation will be apportioned if the child or children 
of the deceased veteran are not in the custody of the surviving spouse.
    (b) The surviving spouse may not be paid less than $65 monthly plus 
the amount of an aid and attendance allowance where applicable.

[40 FR 21725, May 19, 1975, as amended at 44 FR 45940, Aug. 6, 1979]



Sec. 3.460  Death pension.

    Death pension will be apportioned if the child or children of the 
deceased veteran are not in the custody of the surviving spouse. Where 
the surviving spouse's rate is in excess of $70 monthly because of 
having been the spouse of the veteran during service or because of need 
for regular aid and attendance, the additional amount will be added to 
the surviving spouse's share.
    (a) Civil, Indian and Spanish-American wars. Where pension is 
payable under 38

[[Page 288]]

U.S.C. 1532, 1534, or 1536 apportionment will be based on the facts in 
the individual case in accordance with Sec. 3.451.
    (b) Section 306 and old-law death pension. Appointment of benefits 
provided under these pension programs will be at rates approved by the 
Under Secretary for Benefits except when the facts and circumstances in 
a case warrant special apportionment under Sec. 3.451.


(Authority: 38 U.S.C. 5307)

    (c) Improved death pension. Apportionment of the benefits provided 
under this program shall be made under the special apportionment 
provision of Sec. 3.451.

(Authority: 38 U.S.C. 5307)

[41 FR 21324, May 25, 1976, as amended at 43 FR 14018, Apr. 4, 1978; 44 
FR 45940, Aug. 6, 1979; 61 FR 20727, May 8, 1996]



Sec. 3.461  Dependency and indemnity compensation.

    (a) Conditions under which apportionment may be made. The surviving 
spouse's award of dependency and indemnity compensation will be 
apportioned where there is a child or children under 18 years of age and 
not in the custody of the surviving spouse. The surviving spouse's award 
of dependency and indemnity compensation will not be apportioned under 
this condition for a child over the age of 18 years.
    (b) Rates payable. (1) The share for each of the chidren under 18 
years of age, including those in the surviving spouse's custody as well 
as those who are not in such custody, will be at rates approved by the 
Under Secretary for Benefits except when the facts and circumstances in 
a case warrant special apportionment under Sec. 3.451. The share for 
the surviving spouse will be the difference between the children's share 
and the total amount payable. In the application of this rule, however, 
the surviving spouse's share will not be reduced to an amount less than 
50 percent of that to which the surviving spouse would otherwise be 
entitled.
    (2) The additional amount of aid and attendance, where applicable, 
will be added to the surviving spouse's share and not otherwise included 
in the computation.
    (3) Where the surviving spouse has elected to receive dependency and 
indemnity compensation instead of death compensation, the share of 
dependency and indemnity compensation for a child or children under 18 
years of age will be whichever is the greater:
    (i) The apportioned share computed under paragraph (b)(1) of this 
section; or
    (ii) The share which would have been payable as death compensation 
but not in excess of the total dependency and indemnity compensation.

[43 FR 14018, Apr. 4, 1978, as amended at 61 FR 20727, May 8, 1996]

                     Reductions and Discontinuances



Sec. 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 Sec. 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)). In accordance 
with the facts found.
    (b) Error; payee's or administrative (38 U.S.C. 5112(b), (9), (10)). 
(1) Effective date of award or day preceding act, whichever is later, 
but not prior to the date entitlement ceased, on an erroneous award 
based on an act of commission or omission by a payee or with the payee's 
knowledge.
    (2) Except as provided in paragraph (r) of this section, and Sec. 
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. See Sec. 3.660.

[[Page 289]]

    (d) Apportionment (Sec. Sec. 3.450 series; Sec. 3.556). (1) Except 
as otherwise provided, date of last payment when reason for 
apportionment no longer exists.
    (2) Where pension was apportioned under Sec. 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 (Sec. 3.708). The day preceding 
the date the award of benefits under the Federal Employees' Compensation 
Act became effective. If children on rolls and surviving spouse has 
primary title, award to children discontinued same date as surviving 
spouse's award.


(Authority: 5 U.S.C. 8116)

    (f) Contested claims Sec. 3.402(b) and Sec. subpart F of part 20 
of this chapter). Date of last payment.
    (g) Death (38 U.S.C. 5112 (a), (b))--(1) Payee (includes 
apportionee). Last day of month before death.
    (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. Date of death.
    (h) Dependency of parent (38 U.S.C. 5112; Pub. L. 90-275; Sec. Sec. 
3.4(a), (b)(2), 3.250, 3.551(b) and 3.660). See Sec. 3.660.
    (i) Election of Department of Veterans Affairs benefits (Sec. 3.700 
series). Day preceding beginning date of award under other law.
    (j) Foreign residence (38 U.S.C. 5308(a)). See Sec. 3.653.
    (k) Fraud (38 U.S.C. 6103(a), (d); Sec. Sec. 3.669 and 3.901). 
Beginning date of award or day preceding date of fraudulent act, 
whichever is later.
    (l) Guardian, marriage or divorce of (Sec. 3.856). Date of last 
payment (pending receipt of information as to change of name).
    (m) Incompetency (Sec. 3.855). Date of last payment.
    (n) Marriage (or remarriage) (38 U.S.C. 101(3), 5112 (b))--(1) Payee 
(includes apportionee). Last day of month before marriage.
    (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. Last day of month before inception 
of relationship.


(Authority: 38 U.S.C. 101(4), 501)

    (o) Penal institutions. See Sec. 3.666.
    (p) Philippines (38 U.S.C. 107(a)(3); Sec. 3.40). Date of last 
payment when recognition of service withdrawn.
    (q) Renouncement (Sec. 3.106). Last day of the month in which the 
renouncement is received.
    (r) Service connection (38 U.S.C. 5112(b)(6); Sec. 3.105). Last day 
of month following 60 days after notice to payee. Applies to reduced 
evaluation, and severance of service connection.
    (s) Treasonable acts or subversive activities (38 U.S.C. 6104 and 
6105; Sec. Sec. 3.902, 3.903). (1) Treasonable acts. Date of the 
forfeiture decision or date of last payment, whichever is earlier.
    (2) Subversive activities. Beginning date of award or day preceding 
date of commission of subversive activities for which convicted, 
whichever is later.
    (t) Whereabouts unknown (Sec. Sec. 3.158, 3.656). Date of last 
payment.
    (u) Change in law or Department of Veterans Affairs issue, or 
interpretation. See Sec. 3.114.
    (v) Failure to furnish evidence of continued eligibility. See Sec. 
3.652 (a) and (b).
    (w) Failure to furnish Social Security number. Last day of the month 
during which the 60 day period following the date of VA request expires.
    (x) Radiation Exposure Compensation Act of 1990 (Sec. 3.715). 
(Compensation or dependency and indemnity compensation only.) Last day 
of the month preceding the month in which payment

[[Page 290]]

under the Radiation Exposure Compensation Act of 1990 is issued.
    (y) Compensation for certain disabilities due to undiagnosed 
illnesses (Sec. Sec. 3.105; 3.317). Last day of the month in which the 
60-day period following notice to the payee of the final rating action 
expires. This applies to both reduced evaluations and severance of 
service connection. (Authority: Pub. L. 103-446; 38 U.S.C. 501(a))

(Authority: 38 U.S.C. 8301)

    Cross Reference: Failure to return questionnaire. See Sec. 
3.661(b).

[26 FR 1596, Feb. 24, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 
3.500, see the List of Sections Affected, which appears in the Finding 
Aids section of the printed volume and on GPO Access.



Sec. 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; Sec. 
3.700(a)). Day preceding entrance on active duty. See Sec. 3.654.
    (b) Aid and attendance--(1) Section 3.552(b)(1). Last day of 
calendar month following month in which veteran is hospitalized at 
Department of Veterans Affairs expense.
    (2) Section 3.552(b)(2). Last day of calendar month following month 
in which veteran hospitalized at United States Government expense.
    (3) Aid and attendance for spouse. End of month in which award 
action is taken if need for aid and attendance has ceased.
    (c) Disappearance of veteran. See Sec. 3.656.
    (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; Sec. 3.105)--(1) Pension. Last day of month in which 
discontinuance is approved.
    (2) Compensation. Last day of month following 60 days after notice 
to payee.
    (f) Employment questionnaire, failure to return. Reduce award to the 
amount payable for the schedular evaluation shown in the current rating 
as of the day following the date of last payment.
    (g) Evaluation reduced (38 U.S.C. 5112(b) (5), (6); Pub. L. 87-825; 
Sec. 3.105)--(1) Pension. Last day of month in which reduction or 
discontinuance is approved.
    (2) Compensation. Last day of month following 60 days after notice 
to payee.
    (h) Examination; failure to report. See Sec. 3.655.
    (i) Hospitalization. (1) Section 3.551(b). Last day of the sixth 
calendar month following admission if veteran without dependents.
    (2) Section 3.551(c). (i) Last day of the second calendar month 
following admission to domiciliary care if veteran without spouse or 
child or, though married, is receiving pension at the rate provided for 
a veteran without dependents. (ii) Last day of the third calendar month 
following admission for hospital or nursing home care if veteran without 
spouse or child or, though married, is receiving pension at the rate 
provided 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 Sec. 3.551(c)(1), the last day of 
the month of such readmission.
    (3) Section 3.552(b) Upon readmission to hospital care within 6 
months of a period of hospital care for which pension was affected by 
the provisions of Sec. 3.552(b)(1) and (2) or Sec. 3.552(k) and 
discharge or release was against medical advice or was the result of 
disciplinary action, the day preceding the date of such readmission.
    (4) Section 3.551(d) (i) Last day of the second calendar month 
following admission to domiciliary care if veteran without spouse or 
child or, though

[[Page 291]]

married, is receiving pension at the rate for a veteran without 
dependents.
    (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 
Sec. 3.551(d)(1) or (2), the last day of the month of such readmission.
    (5) Section 3.551(e) (i) Last day of the third calendar month 
following admission to domiciliary or nursing home care if veteran 
without spouse or child or, though married, is receiving pension at the 
rate for a veteran without dependents. (ii) Upon readmission to 
domiciliary or nursing home care within 6 months of a period of 
domiciliary or nursing home care for which pension was reduced under 
Sec. 3.551(e)(1), the last day of the month of such readmission.
    (6) Section 3.551(h). (i) Last day of the calendar month in which 
Medicaid payments begin, last day of the month following 60 days after 
issuance of a prereduction notice required under Sec. 3.103(b)(2), or 
the earliest date on which payment may be reduced without creating an 
overpayment, whichever date is later; or
    (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) Institutional award and/or to Personal Funds of Patients (Sec. 
3.852). Date of last payment, when veteran is discharged from hospital, 
fiduciary appointed, or veteran rated competent.
    (k) Lump-sum readjustment pay. See Sec. 3.700(a)(2).
    (l) Retirement pay (38 U.S.C. 5112(b)(3); Pub. L. 87-825; Sec. 
3.750). Day before effective date of retirement pay.
    (m) Temporary increase (38 U.S.C. 5112(b)(8); Sec. 4.29 of this 
chapter). Last day of month in which hospitalization or treatment 
terminated, whichever is earlier, where temporary increase in 
compensation was authorized because of hospitalization for treatment.
    (n) Section 3.853. Incompetents; estate over $25,000. Incompetent 
veteran receiving compensation, without spouse, child, or dependent 
parent, whose estate exceeds $25,000: Last day of the first month in 
which the veteran's estate exceeds $25,000, but not earlier than 
November 1, 1990.

(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]



Sec. 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) Sec. 3.5(e)(3). (1) If marriage 
occurred prior to October 1, 1982, the day preceding child's 18th 
birthday or last day of calendar year in which child's marriage occurred 
(see Sec. 3.500(n) (2) and (3)), whichever is earlier.
    (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 Sec. 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). Date of last payment 
when rate is reduced because of new certification of pay grade.
    (c) Legal surviving spouse entitled. Date of last payment on award 
to another person as surviving spouse. See Sec. 3.657.


(Authority: 38 U.S.C. 501)


[[Page 292]]


    (d) Marriage. See Sec. 3.500(n).
    (e) Aid and attendance (Sec. 3.351(a)). (1) Date of last payment, 
if need for aid and attendance has ceased.
    (2) If hospitalized at Department of Veterans Affairs expense as a 
veteran, the date specified in Sec. 3.552(b) (1) or (3).
    (f) Medicaid-covered nursing home care (Sec. 3.551(i)). (1) Last 
day of the calendar month in which Medicaid payments begin, last day of 
the month following 60 days after issuance of a prereduction notice 
required under Sec. 3.103(b)(2), or the earliest date on which payment 
may be reduced without creating an overpayment, whichever date is later; 
or
    (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]



Sec. 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); Sec. 3.57). Day before 18th 
(or 23d birthday).
    (2) Enters service. Date of last payment of apportioned disability 
benefits for child not in custody of estranged spouse. Full rate payable 
to veteran. No change where payments are being made for the child to the 
veteran, his (her) estranged spouse, his (her) surviving spouse, or to 
the fiduciary of a child not in the surviving spouse's custody.


(Authority: 38 U.S.C. 501)

    (3) Permanently incapable of selfsupport (38 U.S.C. 5112(a), (b)(6); 
Pub. L. 87-825; Sec. Sec. 3.57, 3.950)--(i) Pension. Date of last 
payment.
    (ii) Compensation or dependency and indemnity compensation. Last day 
of month following 60 days after notice to payee.
    (4) Marriage. See Sec. 3.500(n).
    (5) School attendance. See Sec. 3.667.
    (6) Stepchild no longer member of veteran's household (Sec. 3.57). 
Last day child was a member of household.
    (7) Two parent cases (Sec. 3.703). Day preceding beginning date of 
award based on service of the other parent.
    (8) Dependents' educational assistance (Sec. Sec. 3.707, 3.807, and 
Sec. 21.3023 of this chapter). Day preceding beginning date of 
educational assistance allowance.
    (9) Surviving spouse becomes entitled. Date of last payment. See 
Sec. 3.657.


(Authority: 38 U.S.C. 501)

    (10) Interlocutory adoption decree or adoptive placement agreement. 
Date child left custody of adopting parent during the interlocutory 
period or during adoptive placement agreement, or date of rescission of 
the decree or date of termination of the adoptive placement agreement, 
whichever first occurs.
    (b) Monetary allowance under 38 U.S.C. chapter 18 for certain 
individuals who are children of Vietnam veterans. The effective date of 
discontinuance of the monthly allowance under 38 U.S.C. chapter 18 will 
be the last day of the month before the month in which the death of the 
individual occurred.


(Authority: 38 U.S.C. 1822, 5112(b))


(Authority: 38 U.S.C. 501)

[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]



Sec. 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

[[Page 293]]

Affairs expense as a veteran the date will be specified in Sec. 
3.552(b) (1) or (3).

(Authority: Pub. L. 92-197, 85 Stat. 660)

[37 FR 6679, Apr. 1, 1972]



Sec. 3.505  Filipino veterans; benefits at the full-dollar rate.

    The effective date of discontinuance of compensation for Filipino 
veterans under Sec. 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 receiving benefits at the full-dollar rate under 
Sec. 3.42 is physically absent from the U.S. for a total of 183 days or 
more during any calendar year, VA will reduce compensation 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 receiving benefits at the full-dollar rate under 
Sec. 3.42 is physically absent from the U.S. for more than 60 
consecutive days, VA will reduce his or her compensation 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 receiving benefits at the full-dollar rate under 
Sec. 3.42 loses either U.S. citizenship or status as an alien lawfully 
admitted for permanent residence in the U.S., VA will reduce the 
compensation 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 receiving benefits at the full-dollar rate 
under Sec. 3.42 is returned to VA by the U.S. Postal Service, VA will 
reduce his or her payment to the rate of $0.50 for each dollar 
authorized under law, effective on the date of the last payment of 
compensation benefits.

(Authority: 38 U.S.C. 107)

[66 FR 66768, Dec. 27, 2001]

                       Hospitalization Adjustments



Sec. 3.551  Reduction because of hospitalization.

    (a) General. Pension is subject to reduction as specified below when 
a veteran who has neither spouse, child nor dependent parent is 
hospitalized, unless the veteran is hospitalized for Hansen's disease. 
The provisions of this section apply to initial periods of 
hospitalization and to readmissions following discharge from a prior 
period of hospitalization. If the veteran is hospitalized for 
observation and examination, the date treatment began is considered the 
date of admission. Special rules governing discontinuance of aid and 
attendance allowance are contained in Sec. 3.552. Except as otherwise 
indicated the terms ``hospitalized'' and ``hospitalization'' in 
Sec. Sec. 3.551 through 3.556 mean:
    (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. (1) Old law pension in excess of $30 monthly 
for a veteran who has neither spouse, child nor dependent parent shall 
continue at the full monthly rate until the end of the sixth calendar 
month following the month of admission for hospitalization. The rate 
payable will be reduced effective the first of the seventh calendar 
month to $30 monthly or 50 percent of the amount otherwise payable, 
whichever is greater. The reduced rate will be effective the first day 
of the seventh calendar month following admission. Payment of the amount 
withheld may be made on termination of hospitalization, as provided in 
Sec. 3.556. (Sec. 306(b))
    (2) Readmission following regular discharge. Where a veteran has 
been given an approved discharge or release, readmission the next day to 
the same or any other VA institution begins a new period of 
hospitalization, unless the veteran was released for purposes of 
admission to another VA institution.
    (3) Readmission following irregular discharge. When a veteran whose 
award is subject to reduction under this paragraph has been discharged 
or released from a VA institution against medical advice or as a result 
of disciplinary action, reentry within 6 months from the

[[Page 294]]

date of previous admission constitutes a continuation of that period of 
hospitalization and the award will not be reduced prior to the first day 
of the seventh calendar month following the month of original admission, 
exclusive of authorized absences. Reentry 6 months or more after such 
discharge or release shall be considered a new admission.


(Authority: 38 U.S.C. 5503(a))

    (c) Section 306 pension. (1) 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 being furnished hospital, 
nursing home or domiciliary care by the Department of Veterans Affairs, 
no pension in excess of $50 monthly shall be paid to or for the veteran 
for any period after the end of the second full calendar month following 
the month of admission for such care.


(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 Sec. 3.454(b).
    (d) Improved pension prior to February 1, 1990. (1) 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 being furnished domiciliary 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 second full calendar month following the month of admission for 
such care. (38 U.S.C. 5503(a))
    (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 
Sec. 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. (1) 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 domiciliary or nursing home care by VA, no pension in excess 
of $90 monthly shall be paid

[[Page 295]]

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.


(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 
Sec. 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. For purposes of computing periods of 
hospitalization in paragraph (c) of this section, authorized absences of 
96 hours or less will be included as periods of hospitalization, and 
those of over 96 hours excluded. Also, for purposes of that paragraph, 
periods of treatment or care of 60 total days will be considered two 
calendar months of hospitalization and periods of 90 total days 
considered three calendar months, exclusive of authorized absences in 
excess of 96 hours.
    (g) Proof of dependents. The veteran will be considered to have 
neither spouse, child nor dependent parent in the absence of 
satisfactory proof. Statements contained in the claims folder concerning 
the existence of such dependents will be considered a prima facie 
showing. If the necessary evidence is not received: (1) Within 60 days 
after the date of request where the award is subject to reduction under 
paragraph (b) of this section, or (2) prior to the effective date of 
reduction under paragraph (c) of this section, the veteran's award will 
be reduced on the basis of no dependents. The full rate may be 
authorized from the date of reduction if the necessary evidence is 
received within 1 year after the date of request.
    (h) Hospitalization. (1) General. The reduction required by 
paragraphs (d) and (e), except as they refer to domiciliary care, shall 
not be made for up to three additional calendar months after the last 
day of the third month referred to in paragraphs (d)(2) or (e)(1) of 
this section, or after the last day of the month referred to in 
paragraphs (d)(3) or (e)(2) of this section, under the following 
conditions:
    (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

[[Page 296]]

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. The reduction 
required by paragraph (d) or (e) of this section shall not be made for 
periods after the expiration of the additional period provided by 
paragraph (h)(1) of this section under the following conditions:
    (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. Pension in 
excess of $60 monthly or $90, if reduction is under paragraph (e)(1) 
payable to a veteran under this paragraph shall be reduced the end of 
the calendar month in which the primary purpose of hospitalization or 
nursing home care is no longer 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.


(Authority: 38 U.S.C. 5503(a))

    (i) Certain veterans and surviving spouses receiving Medicaid-
covered nursing home care. Effective November 5, 1990, and terminating 
on September 30, 2011, if a veteran having neither spouse nor child, or 
a surviving spouse having no child, is receiving Medicaid-covered 
nursing home care, no pension or death pension in excess of $90 per 
month shall be paid to or for the veteran or the surviving spouse for 
any period after the month in which the Medicaid payments begin. A 
veteran or surviving spouse is not liable for any pension paid in excess 
of the $90 per month by reason of the Secretary's inability or failure 
to reduce payments, unless that inability or failure is the result of 
willful concealment by the veteran or surviving spouse of information 
necessary to make that reduction.

(Authority: 38 U.S.C. 5503)

    Cross References: Time limits. See Sec. 3.109. Apportionment. See 
Sec. 3.400(e). Reductions and discontinuances; general. See Sec. 
3.500. Incompetents; resumption. See Sec. 3.558.

[27 FR 7677, Aug. 3, 1962, as amended at 27 FR 8793; Sept. 1, 1962; 37 
FR 19133, Sept. 19, 1972; 39 FR 32988, Sept. 13, 1974; 40 FR 45169, Oct. 
1, 1975; 41 FR 18412, May 4, 1976; 44 FR 45941, Aug. 6, 1979; 45 FR 
35327, May 27, 1980; 46 FR 47541, Sept. 29, 1981; 47 FR 24551, June 7, 
1982; 56 FR 25045, June 3, 1991; 56 FR 65849, 65850, Dec. 19, 1991; 57 
FR 8578, March 11, 1992; 58 FR 32445, June 10, 1993; 59 FR 62584, Dec. 
6, 1994; 64 FR 32807, June 18, 1999; 66 FR 48560, Sept. 21, 2001; 68 FR 
34542, June 10, 2003]



Sec. 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\ or less) or 
concentric contraction of visual field to 5 degrees or less. Awards are, 
however, subject to the provisions of Sec. 3.551 (except where the 
disabling condition is Hansen's disease) .
    (3) Additional compensation for dependents under Sec. 3.4(b)(2) is 
payable during hospitalization in addition to the rates authorized by 
this section.

[[Page 297]]

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 Sec. 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) 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.


(Authority: 38 U.S.C. 5503(e))

    (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).

[[Page 298]]

    (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 Sec. 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.

[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]



Sec. Sec. 3.553-3.555  [Reserved]



Sec. 3.556  Adjustment on discharge or release.

    (a) Temporary Absence--30 days. (1) Where a competent veteran whose 
award was reduced under Sec. 3.551(b) is placed on non-bed care status 
or other authorized absence of 30 days or more the full monthly rate, 
excluding any allowance for regular aid and attendance, will be restored 
effective the date of reduction. The full monthly rate for an 
incompetent veteran, or for a competent veteran whose pension was 
reduced under Sec. 3.551(c), will be restored effective the date of 
departure from the hospital unless it is determined that apportionment 
for a spouse should be continued. In all instances, any allowance for 
regular aid and attendance will be restored effective the date of 
departure from the hospital.
    (2) Upon the veteran's return to the hospital, an award which is 
subject to reduction under Sec. 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. A temporary absence of 
less than 30 days, including the day of departure, will not require 
adjustment of the award. This applies to any approved absence. Any 
allowance for regular aid and attendance for such periods will be 
authorized after the veteran has been discharged from the hospital.
    (c) Adjustment based on need. Where an award of pension was reduced 
under Sec. 3.551(c), the full rate covering absences of less than 30 
days may be restored, subject to prior payments, prior to discharge from 
hospitalization at the request of the Director of the hospital, center 
or domiciliary, where this action is necessary to meet the veteran's 
financial needs, if the veteran has been hospitalized for more than 6 
months and the periods of absence exceed a total of 30 days.
    (d) Irregular discharge. When a competent veteran is given an 
irregular discharge, the full rate will be restored effective the date 
of release from the

[[Page 299]]

hospital. Payment of any amount withheld under Sec. 3.551(b) will not 
be authorized until the expiration of 6 months after termination of 
hospitalization unless the prior release is changed to a regular 
release. However, amounts not paid under paragraph (c) of this section 
covering absence of less than 30 days where the award was reduced under 
Sec. 3.551(c) will be authorized immediately.
    (e) Regular discharge. When a veteran, either competent or 
incompetent, is given a regular discharge or release, the full rate, 
including any allowance for regular aid and attendance will be restored 
effective the date of release from the hospital, subject to prior 
payments. The award will be based on the most recent rating and, where 
the award was reduced under Sec. 3.551(b), will include, in the case of 
a competent veteran, any amounts withheld because of hospitalization. 
The amount withheld for an incompetent veteran will not be authorized 
until the expiration of 6 months following a rating of competency by VA. 
Any institutional award will be discontinued effective date of last 
payment, as provided in Sec. 3.501(j). Where an apportionment made 
under Sec. 3.551(c) is not continued, the apportionment will be 
discontinued effective the day preceding the date of the veteran's 
release from the hospital, or, if adjusted, effective the date of the 
veteran's release from the hospital, unless an overpayment would result. 
In the excepted cases, the awards to the veteran and apportionee will be 
adjusted as of date of last payment.


(Authority: 38 U.S.C. 5503)

    (f) Types of discharges. A discharge is considered regular if it is 
granted because of having received maximum hospital benefits. A 
discharge for disciplinary reasons or because of the patient's refusal 
to accept, neglect of or obstruction of treatment; refusal to accept 
transfer, or failure to return from authorized absence, is considered 
irregular.

[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]



Sec. 3.557  [Reserved]



Sec. 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 Sec. 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 Sec. 
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 
Sec. 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 Sec. 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]



Sec. 3.559  [Reserved]

                       Adjustments and Resumptions



Sec. 3.650  Rate for additional dependent.

    (a) Running awards. Except as provided in paragraph (c) of this 
section where a claim is filed by an additional dependent who has 
apparent entitlement which, if established, would require reduction of 
pension, compensation or dependency and indemnity compensation being 
paid to another dependent, payments to the person or persons on the 
rolls will be reduced as follows:
    (1) Where benefits would be payable from a date prior to the date of 
filing claim, the reduction will be effective

[[Page 300]]

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. If the additional dependent is found to be entitled, 
the full rate payable will be authorized effective the date of 
entitlement.
    (c) Retroactive DIC award to a school child--(1) General. If DIC 
(dependency and indemnity compensation) is being currently paid to a 
veteran's child or children under 38 U.S.C. 1313(a), and DIC is 
retroactively awarded to an additional child of the veteran based on 
school attendance, the full rate payable to the additional child shall 
be awarded the first of the month following the month in which the award 
to the additional child is approved. The rate payable under the current 
award shall be reduced effective the date the full rate is awarded to 
the additional child. The rate payable to the additional child for 
periods prior to the date the full rate is awarded shall be the 
difference between the rate payable for all the children and the rate 
that was payable before the additional child established entitlement.
    (2) Applicability. The provisions of paragraph (c)(1) of this 
section are applicable only when the following conditions are met:
    (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. This paragraph is applicable to DIC paid after 
September 30, 1981. If DIC is retroactively awarded for a period prior 
to October 1, 1981, payment for the period prior to October 1, 1981 
shall be made under paragraph (a) of this section and payment for the 
period after September 30, 1981, shall be made under this paragraph.

[29 FR 9564, July 15, 1964, as amended at 47 FR 24551, June 7, 1982]



Sec. 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]



Sec. 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.

[[Page 301]]

    (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 
Sec. Sec. 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 
Sec. 3.501(f). Income and Net Worth Questionnaires. See Sec. 3.661.

[52 FR 43063, Nov. 9, 1987]



Sec. 3.653  Foreign residence.

    (a) General. Pension, compensation, or dependency and indemnity 
compensation is not payable to an alien who is located in the territory 
of or under the control of an enemy of the United States or of its 
allies. The benefit may, however, be paid to the dependents of such 
alien, but not in excess of the amount which would be payable to the 
dependent if the alien were dead.


(Authority: 38 U.S.C. 5308)

    (b) Retroactive payments. Any amount not paid to an alien under this 
section, together with any amounts placed to the alien's credit in the 
special deposit account in the Treasury or covered into the Treasury as 
miscellaneous receipts under 31 U.S.C. 123-128 will be paid to him or 
her on the filing of a new claim. Such claim should be supported with 
evidence that the alien has not been guilty of mutiny, treason, sabotage 
or rendering assistance to an enemy, as provided in Sec. 3.902(a).


(Authority: 38 U.S.C. 5309)

    (c) Treasury Department list. This paragraph is applicable to claims 
for benefits for aliens residing in countries identified on the list 
established by the Secretary of the Treasury as countries to which 
checks could not be delivered with reasonable assurance that the payee 
would actually receive and be able to negotiate a check for full value.
    (1) Evidence requests. Requests for evidence to establish either 
basic or continued entitlement will not be made where such evidence 
would be obtained from a country on the Treasury Department list unless 
the claimant requests that checks be sent to him or her in care of a 
U.S. Foreign Service post in a country which is not on the list.
    (2) Awards. Payments for a claimant residing in a country included 
in the Treasury Department list will not be authorized unless the 
claimant requests that checks be sent to him or her in care of a U.S. 
Foreign Service post in a country which is not on the list.
    (3) Retroactive payments. Where award action is authorized under 
paragraph (c)(2) of this section, or a new claim has been filed after a 
country has been removed from the Treasury Department list, all benefits 
to which the payee is otherwise entitled will be paid as provided in 
paragraph (b) of this section. There is no time limit for filing claim.
    (d) Germany and Japan. Where payments were discontinued before July 
1, 1954, because the payee was a citizen or subject of Germany or Japan, 
no payments will be made for any period prior to the date of filing a 
new claim.

(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]



Sec. 3.654  Active service pay.

    (a) General. Pension, compensation, or retirement pay will be 
discontinued under the circumstances stated in Sec. 3.700(a)(1) for any 
period for which the

[[Page 302]]

veteran received active service pay. For the purposes of this section, 
active service pay means pay received for active duty, active duty for 
training or inactive duty training.
    (b) Active duty. (1) Where the veteran returns to active duty 
status, the award will be discontinued effective the day preceding 
reentrance into active duty status. If the exact date is not known, 
payments will be discontinued effective date of last payment and as of 
the correct date when the date of reentrance has been ascertained from 
the service department.
    (2) Payments, if otherwise in order, will be resumed effective the 
day following release from active duty if claim for recommencement of 
payments is received within 1 year from the date of such release: 
otherwise payments will be resumed effective 1 year prior to the date of 
receipt of a new claim. Prior determinations of service connection will 
not be disturbed except as provided in Sec. 3.105. Compensation will be 
authorized based on the degree of disability found to exist at the time 
the award is resumed. Disability will be evaluated on the basis of all 
facts, including records from the service department relating to the 
most recent period of active service. If a disability is incurred or 
aggravated in the second period of service, compensation for that 
disability cannot be paid unless a claim therefor is filed.
    (c) Training duty. Prospective adjustment of awards may be made 
where the veteran waives his or her Department of Veterans Affairs 
benefit covering anticipated receipt of active service pay because of 
expected periods of active duty for training or inactive duty training. 
Where readjustment is in order because service pay was not received for 
expected training duty, retroactive payments may be authorized if a 
claim for readjustment is received within 1 year after the end of the 
fiscal year for which payments were waived.

[27 FR 11890, Dec. 1, 1962]



Sec. 3.655  Failure to report for Department of Veterans Affairs 
examination.

    (a) General. When entitlement or continued entitlement to a benefit 
cannot be established or confirmed without a current VA examination or 
reexamination and a claimant, without good cause, fails to report for 
such examination, or reexamination, action shall be taken in accordance 
with paragraph (b) or (c) of this section as appropriate. Examples of 
good cause include, but are not limited to, the illness or 
hospitalization of the claimant, death of an immediate family member, 
etc. For purposes of this section, the terms examination and 
reexamination include periods of hospital observation when required by 
VA.
    (b) Original or reopened claim, or claim for increase. When a 
claimant fails to report for an examination scheduled in conjunction 
with an original compensation claim, the claim shall be rated based on 
the evidence of record. When the examination was scheduled in 
conjunction with any other original claim, a reopened claim for a 
benefit which was previously disallowed, or a claim for increase, the 
claim shall be denied.
    (c) Running award. (1) When a claimant fails to report for a 
reexamination and the issue is continuing entitlement, VA shall issue a 
pretermination notice advising the payee that payment for the disability 
or disabilities for which the reexamination was scheduled will be 
discontinued or, if a minimum evaluation is established in part 4 of 
this title or there is an evaluation protected under Sec. 3.951(b) of 
this part, reduced to the lower evaluation. Such notice shall also 
include the prospective date of discontinuance or reduction, the reason 
therefor and a statement of the claimant's procedural and appellate 
rights. The claimant shall be allowed 60 days to indicate his or her 
willingness to report for a reexamination or to present evidence that 
payment for the disability or disabilities for which the reexamination 
was scheduled should not be discontinued or reduced.
    (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.

[[Page 303]]

    (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 Sec. 3.105(h)(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 
Sec. 3.103. Examinations: See Sec. 3.326. Reexaminations: See Sec. 
3.327. Resumption of rating when veteran subsequently reports for VA 
examination: See Sec. 3.330.

[55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993]



Sec. 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 Sec. 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 death pension rate if the veteran was receiving 
service pension or the improved death pension rate if the veteran was 
receiving section 306 or improved pension.

[[Page 304]]

    (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]



Sec. 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. For periods on or after December 1, 
1962, where a legal surviving spouse establishes entitlement after 
payments have been made to another person as surviving spouse, the full 
rate payable to the legal surviving spouse will be authorized effective 
the date of entitlement. Payments to the former payee will be 
discontinued as follows:
    (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. (1) Where a surviving spouse establishes 
entitlement and:
    (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]



Sec. 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

[[Page 305]]

award will be made subject to an offset of payments of death pension or 
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]



Sec. 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 death pension based on death on or after that date.
    (a) If death 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 death pension, compensation, or dependency and indemnity compensation 
or, under the circumstances described in Sec. 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 Sec. 3.503(a)(7). Two 
parents in same parental line. See Sec. 3.703.

[27 FR 4917, May 25, 1962, as amended at 29 FR 9564, July 15, 1964; 41 
FR 17387, Apr. 26, 1976]



Sec. 3.660  Dependency, income and estate.

    (a) Reduction or discontinuance--(1) General. A veteran, surviving 
spouse or child who is receiving pension, or a parent who is receiving 
compensation or dependency and indemnity compensation must notify the 
Department of Veterans Affairs of any material change or expected change 
in his or her income or other circumstances which would affect his or 
her entitlement to receive, or the rate of, the benefit being paid. Such 
notice must be furnished when the recipient acquires knowledge that he 
or she will begin to receive additional income or when his or her 
marital or dependency status changes. In pension claims subject to Sec. 
3.252(b) or Sec. 3.274 and in compensation claims subject to Sec. 
3.250(a)(2), notice must be furnished of any material increase in corpus 
of the estate or net worth.
    (2) Effective dates. Where reduction or discontinuance of a running 
award of section 306 pension or old-law pension is required because 
dependency of another person ceased due to marriage, annulment, divorce 
or death, or because of an increase in income, which increase could not 
reasonably have been anticipated based on the amount actually received 
from that source the year before, the reduction or discontinuance shall 
be made effective the end of the year in which the increase occurred. 
Where reduction or discontinuance of a running award of improved pension 
or dependency and indemnity compensation is required because of an 
increase in income, the reduction or discontinuance shall be made 
effective the end of the month in which the increase occurred. Where 
reduction or discontinuance of a running award of any benefit is 
required because of an increase in net worth or corpus of estate, 
because dependency of a parent ceased, or because dependency of another 
person ceased prior to October 1, 1982, due to marriage, annulment, 
divorce, or death, the award shall be reduced or discontinued effective 
the last day of the calendar year in which the increase occurred or 
dependency ceased. Except as noted in this subparagraph for section 306 
or old-law pension, where the dependency of another person ceased on or 
after October 1, 1982, due to marriage, annulment, divorce or death, the 
reduction or discontinuance shall be effective the

[[Page 306]]

last day of the month in which dependency ceased.


(Authority: 38 U.S.C. 5112(b))

    (3) Overpayments. Overpayments created by retroactive discontinuance 
of benefits will be subject to recovery if not waived. Where dependency 
and indemnity compensation was being paid to two parents living 
together, an overpayment will be established on the award to each 
parent.
    (b) Award or increase; income. Where pension or dependency and 
indemnity compensation was not paid for a particular 12-month 
annualization period because the claim was disallowed, an award was 
deferred under Sec. 3.260(b) or Sec. 3.271(f), payments were 
discontinued or made at a lower rate based on anticipated or actual 
income, benefits otherwise payable may be authorized commencing the 
first of a 12-month annualization period as provided in this paragraph. 
In all other cases, benefits may not be authorized for any period prior 
to the date of receipt of a new claim.
    (1) Anticipated income. Where payments were not made or were made at 
a lower rate because of anticipated income, pension or dependency and 
indemnity compensation may be awarded or increased in accordance with 
the facts found but not earlier than the beginning of the appropriate 
12-month annualization period if satisfactory evidence is received 
within the same or the next calendar year.


(Authority: 38 U.S.C. 5110(h))

    (2) Actual income. Where the claimant's actual income did not permit 
payment, or payment was made at a lower rate, for a given 12-month 
annualization period, pension or dependency and indemnity compensation 
may be awarded or increased, effective the beginning of the next 12-
month annualization period, if satisfactory evidence is received within 
that period.
    (c) Increases; change in status. Where there is change in the 
payee's marital status or status of dependents which would permit 
payment at a higher rate and the change in status is by reason of the 
claimant's marriage or birth or adoption of a child, the effective date 
of the increase will be the date of the event if the required evidence 
is received within 1 year of the event. Where there is a change in 
dependency status for any reason other than marriage, or the birth or 
adoption of a child, which would permit payment at a higher rate, the 
increased rate will be effective the date of receipt of notice 
constituting an informal claim if the required evidence is received 
within 1 year of Department of Veterans Affairs request. The rate 
payable for each period will be determined, as provided in Sec. Sec. 
3.260(f) or 3.273(c). (See Sec. 3.651 as to increase due to termination 
of payments to another payee. Also see Sec. 3.667 as to increase based 
on school attendance.)
    (d) Corpus of estate; net worth. Where a claim has been finally 
disallowed or terminated because of the corpus of estate and net worth 
provisions of Sec. Sec. 3.263 or 3.274 and entitlement is established 
on the basis of a reduction in estate or net worth, or a change in 
circumstances such as health, acquisition of a dependent, or increased 
rate of depletion of the estate, benefits or increased benefits will not 
be paid for any period prior to the date of receipt of a new claim.

[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]



Sec. 3.661  Eligibility Verification Reports.

    (a) Determination and entitlement. (1) Where the report shows a 
change in income, net worth, marital status, status of dependents or 
change in circumstances affecting the application of the net worth 
provisions, the award will be adjusted in accordance with Sec. 
3.660(a)(2).
    (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 Sec. 3.260(b) or Sec. 3.271 (f).
    (b) Failure to return report--(1) Section 306 and old-law pension--
(i) Discontinuance. Discontinuance of old-law or section 306 pension 
shall be effective the last day of the calendar year for which income 
(and net worth in a section 306 pension case) was to be reported.
    (ii) Resumption of benefits. Payment of old-law or section 306 
pension may be

[[Page 307]]

resumed, if otherwise in order, from the date of last payment if 
evidence of entitlement is received within the calendar year following 
the calendar year for which income (and net worth in a section 306 
pension case) was to be reported; otherwise pension may not be paid for 
any period prior to the date of receipt of a new claim.
    (2) Improved pension and dependency and indemnity compensation--(i) 
Discontinuance. Discontinuance of dependency and indemnity compensation 
(DIC) or improved pension shall be effective the first day of the 12-
month annualization period for which income (and net worth in an 
improved pension case) was to be reported or the effective date of the 
award, whichever is the later date.
    (ii) Adjustment of overpayment. If evidence of entitlement to 
improved pension or DIC for any period for which payment of improved 
pension or DIC was discontinued for failure to file an Eligibility 
Verification Report is received at any time, payment of improved pension 
or DIC shall be awarded for the period of entitlement for which benefits 
were discontinued for failure to file an Eligibility Verification 
Report.
    (iii) Resumption of benefits. Payment of improved pension and DIC 
may be resumed, if otherwise in order, from the date of last payment if 
evidence of entitlement is received within the 12-month annualization 
period following the 12-month annualization period for which income (and 
net worth in an improved pension case) was to be reported; otherwise 
pension or DIC may not be paid for any period prior to receipt of a new 
claim.

(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]



Sec. Sec. 3.662-3.664  [Reserved]



Sec. 3.665  Incarcerated beneficiaries and fugitive felons--compensation.

    (a) General. Any person specified in paragraph (c) of this section 
who is incarcerated in a Federal, State or local penal institution in 
excess of 60 days for conviction of a felony will not be paid 
compensation or dependency and indemnity compensation (DIC) in excess of 
the amount specified in paragraph (d) of this section beginning on the 
61st day of incarceration. VA will inform a person whose benefits are 
subject to this reduction of the rights of the person's dependents to an 
apportionment while the person is incarcerated, and the conditions under 
which payments to the person may be resumed upon release from 
incarceration. In addition, VA will also notify the person's dependents 
of their right to an apportionment if the VA is aware of their existence 
and can obtain their addresses. However, no apportionment will be made 
if the veteran or the dependent is a fugitive felon as defined in 
paragraph (n) of this section.
    (b) Definitions. For the purposes of this section the term 
compensation includes disability compensation under 38 U.S.C. 1151. The 
term dependency and indemnity compensation (DIC) includes death 
compensation payable under 38 U.S.C. 1121 or 1141, death compensation 
and DIC payable under 38 U.S.C. 1151, and any benefit payable under 
chapter 13 of title 38, United States Code. The term release from 
incarceration includes participation in a work release or halfway house 
program, parole, and completion of sentence. For purposes of this 
section, a felony is any offense punishable by death or imprisonment for 
a term exceeding 1 year, unless specifically categorized as a 
misdemeanor under the law of the prosecuting jurisdiction.
    (c) Applicability. The provisions of paragraph (a) of this section 
are applicable to the following persons:
    (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

[[Page 308]]

remains so incarcerated for a conviction of that felony as of December 
27, 2001.
    (d) Amount payable during incarceration--(1) Veteran rated 20 
percent or more. A veteran to whom the provisions of paragraphs (a) and 
(c) of this section apply with a service-connected disability evaluation 
of 20 percent or more shall receive the rate of compensation payable 
under 38 U.S.C. 1114(a).
    (2) Veteran rated less than 20 percent. A veteran to whom the 
provisions of paragraphs (a) and (c) of this section apply with a 
service-connected disability evaluation of less than 20 percent (even 
though the rate for 38 U.S.C. 1114 (k) or (q) is paid) shall receive 
one-half the rate of compensation payable under 38 U.S.C. 1114(a).
    (3) Surviving spouse, parent or child. A surviving spouse, parent, 
or child, beneficiary to whom the provisions of paragraphs (a) and (c) 
of this section apply shall receive one-half the rate of compensation 
payable under 38 U.S.C. 1114(a).
    (e) Apportionment--(1) Compensation. All or part of the compensation 
not paid to an incarcerated veteran may be apportioned to the veteran's 
spouse, child or children and dependent parents on the basis of 
individual need. In determining individual need consideration shall be 
given to such factors as the apportionee claimant's income and living 
expenses, the amount of compensation available to be apportioned, the 
needs and living expenses of other apportionee claimants as well as any 
special needs, if any, of all apportionee claimants.
    (2) DIC. All or part of the DIC not paid to an incarcerated 
surviving spouse or other children not in the surviving spouse's custody 
may be apportioned to another child or children. All or part of the DIC 
not paid to an incarcerated child may be apportioned to the surviving 
spouse or other children. These apportionments shall be made on the 
basis of individual need giving consideration to the factors set forth 
in paragraph (e)(1) of this section.
    (f) Effective dates. An apportionment under this section shall be 
effective the date of reduction of payments made to the incarcerated 
person, subject to payments to the incarcerated person over the same 
period, if an informal claim is received within 1 year after notice to 
the incarcerated person as required by paragraph (a) of this section, 
and any necessary evidence is received within 1 year from the date of 
request by the Department of Veterans Affairs; otherwise, payments may 
not be made for any period prior to the date of receipt of a new 
informal claim.
    (g) Incarcerated dependent. No apportionment may be made to or on 
behalf of any person who is incarcerated in a Federal, State, or local 
penal institution for conviction of a felony.
    (h) Notice to dependent for whom apportionment granted. A dependent 
for whom an apportionment is granted under this section shall be 
informed that the apportionment is subject to immediate discontinuance 
upon the incarcerated person's release or participation in a work 
release or halfway house program. A dependent shall also be informed 
that if the dependent and the incarcerated person do not live together 
when the incarcerated person is released (or participates in a work 
release or halfway house program) the dependent may submit a new claim 
for apportionment.
    (i) Resumption upon release--(1) No apportionment or family 
reunited. If there was no apportionment at the time of release from 
incarceration, or if the released person is reunited with all dependents 
for whom an apportionment was granted, the released person's award shall 
be resumed the date of release from incarceration if the Department of 
Veterans Affairs receives notice of release within 1 year following 
release; otherwise the award shall be resumed the date of receipt of 
notice of release. If there was an apportionment award during 
incarceration, it shall be discontinued date of last payment to the 
apportionee upon receipt of notice of release of the incarcerated 
person. Payment to the released person shall then be resumed at the full 
rate from date of last payment to the apportionee. Payment to the 
released person from date of release to date of last payment to the 
apportionee shall be made at the rate which is the difference between 
the released person's full rate and the sum of (i) the rate that was 
payable to the apportionee

[[Page 309]]

and (ii) the rate payable during incarceration.
    (2) Apportionment granted and family not reunited. If there was an 
apportionment granted during incarceration and the released person is 
not reunited with all dependents for whom an apportionment was granted, 
the released person's award shall be resumed as stated in paragraph 
(i)(1) of this section except that when the released person's award is 
resumed it shall not include any additional amount payable by reason of 
a dependent(s) not reunited with the released person. The award to this 
dependent(s) will then be reduced to the additional amount payable for 
the dependent(s).
    (3) Apportionment to a dependent parent. An apportionment made to a 
dependent parent under this section cannot be continued beyond the 
veteran's release from incarceration unless the veteran is incompetent 
and the provisions of Sec. 3.452(c) (1) and (2) are for application. 
When a competent veteran is released from incarceration an apportionment 
made to a dependent parent shall be discontinued and the veteran's award 
resumed as provided in paragraph (i)(1) of this section.
    (j) Increased compensation during incarceration--(1) General. The 
amount of any increased compensation awarded to an incarcerated veteran 
that results from other than a statutory rate increase may be subject to 
reduction due to incarceration. This applies to a veteran whose 
compensation is subject to reduction under paragraphs (a) and (c) of 
this section prior to approval of an award of increased compensation as 
well as to veteran whose compensation is not subject to reduction under 
paragraphs (a) and (c) of this section prior to approval of an award of 
increased compensation.
    (2) Veteran subject to reduction under paragraphs (a) and (c) of 
this section. If prior to approval of an award of increased compensation 
the veteran's compensation was reduced under the provisions of 
paragraphs (a) and (c) of this section, the amount of the increase shall 
be reduced as follows if the veteran remains incarcerated:
    (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. If 
prior to the approval of an award of increased compensation the veteran 
is incarcerated in a Federal, State, or local penal institution for 
conviction of a felony and the veteran's compensation was not reduced 
under the provisions of paragraphs (a) and (c) of this section, none of 
the increased compensation shall be paid to the veteran for periods 
after October 7, 1980, subject to the following conditions:
    (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. The amount of any increased compensation reduced 
under this paragraph may be apportioned as provided in paragraph (e) of 
this section.
    (k) Retroactive awards. Whenever compensation or DIC is awarded to 
an incarcerated person any amounts due for periods prior to date of 
reduction under this section shall be paid to the incarcerated person.
    (l) DIC parents. If two parents are both entitled to DIC and were 
living together prior to the time of the DIC payable to one parent was 
reduced due to incarceration, they shall be considered as two parents 
not living together for the purpose of determining entitlement to DIC.
    (m) Conviction overturned on appeal. If a conviction is overturned 
on appeal, any compensation or DIC withheld under this section as a 
result of incarceration for such conviction (less the

[[Page 310]]

amount of any apportionment) shall be restored to the beneficiary.
    (n) Fugitive felons. (1) Compensation is not payable on behalf of a 
veteran for any period during which he or she is a fugitive felon. 
Compensation or DIC is not payable on behalf of a dependent of a veteran 
for any period during which the veteran or the dependent is a fugitive 
felon.
    (2) For purposes of this section, the term fugitive felon means a 
person who is a fugitive by reason of:
    (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 
includes a high misdemeanor under the laws of a State which 
characterizes as high misdemeanors offenses that would be felony 
offenses under Federal law.
    (4) For purposes of paragraph (n) of this section, the term 
dependent means a spouse, surviving spouse, child, or dependent parent 
of a veteran.

(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]



Sec. 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. Payment may be made to the spouse, child or 
children of a veteran disqualified under this section:
    (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 death 
pension would be payable.
    (3) At the rate payable under the death 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 an informal claim 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 
informal claim.
    (b) Death pension. Payment may be made to a child or children where 
a surviving spouse or child is disqualified under this section:
    (1) If surviving spouse is disqualified to child or children at the 
rate of death 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 death 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 an informal claim.
    (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. Pension 
will be resumed as of the day of release if notice (which constitutes an 
informal claim)

[[Page 311]]

is received within 1 year following release; otherwise resumption will 
be effective the date of receipt of such notice. Where an award or 
increased award was made to any other payee based upon the 
disqualification of the veteran, surviving spouse, or child while in 
prison, such award will be reduced or discontinued as of date of last 
payment and pension will be resumed to the released prisoner at a rate 
which will be the difference, if any, between the total pension payable 
and the amount which was paid to the other person or persons through the 
date of last payment and thereafter the full rate.
    (d) Veteran entitled to compensation. If an imprisoned veteran is 
entitled to a lesser rate of disability compensation, it shall be 
awarded as of the 61st day of imprisonment in lieu of the pension the 
veteran was receiving if the veteran has neither spouse nor child. If 
the veteran has a spouse or a child, compensation will be awarded only 
after the veteran has been furnished an explanation of the effect of 
electing compensation on the amount available for apportionment. If the 
veteran then requests compensation, it shall be awarded from the date 
veteran requests the Department of Veterans Affairs to take such action.
    (e) Fugitive felons. (1) Pension is not payable on behalf of a 
veteran for any period during which he or she is a fugitive felon. 
Pension or death pension is not payable on behalf of a dependent of a 
veteran for any period during which the veteran or the dependent is a 
fugitive felon.
    (2) For purposes of this section, the term fugitive felon means a 
person who is a fugitive by reason of:
    (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 
includes a high misdemeanor under the laws of a State which 
characterizes as high misdemeanors offenses that would be felony 
offenses under Federal law.
    (4) For purposes of paragraph (e) of this section, the term 
dependent means a spouse, surviving spouse, child, or dependent parent 
of a veteran.

(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]



Sec. 3.667  School attendance.

    (a) General. (1) Pension or compensation may be paid from a child's 
18th birthday based upon school attendance if the child was at that time 
pursing a course of instruction at an approved educational institution 
and a claim for such benefits is filed within 1 year from the child's 
18th birthday.
    (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

[[Page 312]]

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. A child is considered to be in school during a 
vacation or other holiday period if he or she was attending an approved 
educational institution at the end of the preceding school term and 
resumes attendance, either in the same or a different approved 
educational institution, at the beginning of the next term. If an award 
has been made covering a vacation period, and the child fails to 
commence or resume school attendance, benefits will be terminated the 
date of last payment or the last day of the month preceding the date of 
failure to pursue the course, whichever is the earlier.
    (c) Ending dates. Except as provided in paragraph (b) of this 
section, benefits may be authorized through the last day of the month in 
which a course was or will be completed.


(Authority: 38 U.S.C. 5112(b)(7))

    (d) Transfers to other schools. When benefits have been authorized 
based upon school attendance and it is shown that during a part or all 
of that period the child was pursuing a different course in the same 
approved educational institution or a course in a different approved 
educational institution, payments previously made will not be disturbed.
    (e) Accrued benefits only. When a claim for accrued benefits is 
filed by or on behalf of a veteran's child over 18 but under 23 years of 
age, who was pursuing a course of instruction at the time of the payee's 
death and payment of accrued benefits only is involved, evidence of 
school attendance need not be confirmed by the school. When the payee's 
death occurred during a school vacation period, the requirements will be 
considered to have been met if the child was carried on the school rolls 
on the last day of the regular school term immediately preceding the 
date of the payee's death.


(Authority: 38 U.S.C. 5112(b)(7))

    (f) Nonduplication. Pension, compensation or dependency and 
indemnity compensation may not be authorized:
    (1) After a child has elected to receive educational assistance 
under 38 U.S.C. chapter 35 (see Sec. 3.707 and Sec. 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 Sec. 
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]



Sec. 3.668  [Reserved]



Sec. 3.669  Forfeiture.

    (a) General. Upon receipt of notice from a Regional Counsel the 
Veterans Service Center Manager in the Manila Regional Office that a 
case is being formally submitted for consideration of forfeiture of a 
payee's rights or that the payee has been indicted for subversive 
activities, payments will be suspended effective date of last payment.
    (b) Fraud or treasonable act--(1) Fraud. If forfeiture of rights is 
not declared, payments shall be resumed from date of last payment, if 
otherwise in order. If it is determined that rights have been forfeited, 
benefits shall be discontinued effective the commencing date of the 
award or the day preceding the

[[Page 313]]

commission of the act resulting in the forfeiture, whichever is later.
    (2) Treasonable acts. If forfeiture of rights is not declared, 
payments shall be resumed from date of last payment, if otherwise in 
order. If it is determined that rights have been forfeited, benefits 
shall be discontinued the date of the forfeiture decision or date of 
last payment, whichever is earlier.
    (c) Subversive activities. If the payee is acquitted of the charge, 
payments will be resumed from date of last payment, if otherwise in 
order. If the payee is convicted, benefits will be discontinued 
effective the commencing date of the award or the day preceding the 
commission of the act resulting in the forfeiture, whichever is later.
    (d) Pardons. (1) Where the payee's offense has been pardoned by the 
President of the United States, the award will be resumed, if otherwise 
in order, effective the date of the pardon if claim is filed within 1 
year from that date; otherwise benefits may not be authorized for any 
period prior to the date of filing claim. The award will be subject to 
any existing overpayment.
    (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 Sec. 3.901. Treasonable acts. See 
Sec. 3.902. Subversive activities. See Sec. 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]

                    Concurrent Benefits and Elections



Sec. 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 
Sec. 3.803 relating to naval pension and Sec. 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--(1) Active service pay. (i) Pension, compensation, or 
retirement pay on account of his or her own service will not be paid to 
any person for any period for which he or she receives 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. (i) Where entitlement to disability 
compensation was established prior to September 15, 1981, a veteran who 
has received a lump-sum readjustment payment under former 10 U.S.C. 687 
(as in effect on September 14, 1981) may receive disability compensation 
for disability incurred in or aggravated by service prior to the date of 
receipt of lump-sum readjustment payment subject to deduction of an 
amount equal to 75 percent of the amount received as readjustment 
payment.


(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

[[Page 314]]

 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) and 1212(c))

    (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. Where the disability or disabilities found to be 
service-connected are the same as those upon which disability severance 
pay is granted, or where entitlement to disability compensation was 
established on or after September 15, 1981, an award of compensation 
will be made subject to recoupment of the disability severance pay. 
Prior to the initial determination of the degree of disability 
recoupment will be at the full monthly compensation rate payable for the 
disability or disabilities for which severance pay was granted. 
Following initial determination of the degree of disability recoupment 
shall not be at a monthly rate in excess of the monthly compensation 
payable for that degree of disability. For this purpose the term 
``initial determination of the degree of disability'' means the first 
regular schedular compensable rating in accordance with the provisions 
of subpart B, part 4 of this chapter and does not mean a rating based in 
whole or in part on a need for hospitalization or a period of 
convalescense. Where entitlement to disability compensation was 
established prior to September 15, 1981, compensation payable for 
service-connected disability other than the disability for which 
disability severance pay was granted will not be reduced for the purpose 
of recouping disability severance pay. Where entitlement to disability 
compensation was established on or after September 15, 1981, a veteran 
may receive disability compensation for disability incurred or 
aggravated by service prior to the date of receipt of the severance pay, 
but VA must recoup from that disability compensation an amount equal to 
the severance pay. Where payment of severance pay was made on or before 
September 30, 1996, VA will recoup from disability compensation an 
amount equal to the total amount of the severance pay. Where payment of 
severance pay was made after September 30, 1996, VA will recoup from 
disability compensation an amount equal to the total amount of the 
severance pay less the amount of Federal income tax withheld from such 
pay.


(Authority: 10 U.S.C. 1174(h)(2) and 1212(c))

    (4) Improved pension. If a veteran is entitled to improved pension 
on the basis of the veteran's own service and is also entitled to 
pension under any pension program currently or previously in effect on 
the basis of any other person's service, the Department of Veterans 
Affairs shall pay the veteran only the greater benefit.


(Authority: 38 U.S.C. 1521(i))

    (5) Separation pay and special separation benefits. (i) Where 
entitlement to disability compensation was established on or after 
September 15, 1981, a veteran who has received separation pay may 
receive disability compensation for disability incurred in or aggravated 
by service prior to the date of receipt of separation pay subject to 
recoupment of the separation pay. Where payment of separation pay or 
special separation benefits under section 1174a was made on or before 
September 30, 1996, VA will recoup from disability compensation an 
amount equal to the total amount of separation pay or special separation 
benefits. Where payment of separation pay or special separation benefits 
under section 1174a was made after September 30, 1996, VA will recoup 
from disability compensation an amount equal to the

[[Page 315]]

total amount of separation pay or special separation benefits less the 
amount of Federal income tax withheld from such pay.
    (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.


(Authority: 10 U.S.C. 1174 and 1174a)

    (b) Dependents--(1) Surviving spouse. Subject to the provisions of 
paragraph (a)(4) of this section, the receipt of pension, compensation, 
or dependency and indemnity compensation by a surviving spouse because 
of the death of any veteran, or receipt of pension or compensation 
because of his or her own service, shall not bar the payment to the 
surviving spouse of pension, compensation, or dependency and indemnity 
compensation because of the death or disability of any other veteran; 
however, other than insurance, concurrent benefits under laws 
administered by the Department of Veterans Affairs may not be authorized 
to a surviving spouse by reason of the death of more than one veteran to 
whom the surviving spouse has been married. The surviving spouse may 
elect to receive benefits based on the death of one such spouse and the 
election places the right to benefits based on the deaths of other 
spouses in suspense. The suspension may be lifted at any time by another 
election based on the death of another spouse. Benefits payable in the 
elected case will be subject to prior payments for the same period based 
on the death of the other spouse where, under the provisions of Sec. 
3.400(c), there is entitlement in the elected case prior to date of 
receipt of the election.


(Authority: 38 U.S.C. 5304)

    (2) Children. Except as provided in Sec. 3.703 and paragraph (a)(4) 
of this section, the receipt of pension, compensation, or dependency and 
indemnity compensation by a child on account of the death of a veteran 
or the receipt by the child of pension or compensation on account of his 
or her own service will not bar the payment of pension, compensation, or 
dependency and indemnity compensation on account of the death or 
disability of any other veteran.
    (3) Parents. The receipt of compensation or dependency and indemnity 
compensation by a parent on account of the death of a veteran or receipt 
by him or her of pension or compensation on account of his or her own 
service, will not bar the payment of pension, compensation, or 
dependency and indemnity compensation on account of the death or 
disability of any other person.

(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]



Sec. 3.701  Elections of pension or compensation.

    (a) General. Except as otherwise provided, a person entitled to 
receive pension or compensation under more than one law or section of a 
law administered by the Department of Veterans Affairs may elect to 
receive whichever benefit, regardless of whether it is the greater or 
lesser benefit, even though the election reduces the benefits payable to 
his or her dependents. Such person may at any time elect or reelect the 
other benefit. An election by a veteran controls the rights of all 
dependents in that case. An election by a surviving spouse controls the 
claims of all children including children over 18 and children not in 
the custody of the surviving spouse. The election of improved pension by 
a surviving spouse, however, shall not prejudice the rights of any child 
receiving an apportionment on December 31, 1978. Termination of a 
marriage or marital relationship which had been the reason for 
terminating an award of section 306 or old-law pension does not restore 
to the surviving spouse the right to receive section 306 or old-law 
pension. The claimant's entitlement, if otherwise established, is

[[Page 316]]

under the current provisions of 38 U.S.C. 1541.


(Authority: 38 U.S.C. 501)

    (b) Form of election. A statement which meets the requirements of an 
informal claim may be accepted as an election.
    (c) Change from one law to another. Except as otherwise provided, 
where payments of pension or compensation are being made to a person 
under one law, the right to receive benefits under another law being in 
suspension, and a higher rate of pension or compensation becomes payable 
under the other law, benefits at the higher rate will not be paid for 
any date prior to the date of receipt of an election.

[26 FR 1602, Feb. 24, 1961, as amended at 36 FR 12618, July 2, 1971; 44 
FR 45943, Aug. 6, 1979]



Sec. 3.702  Dependency and indemnity compensation.

    (a) Right to elect. A person who is eligible for death compensation 
and who has entitlement to dependency and indemnity compensation 
pursuant to the provisions of Sec. 3.5(b)(2) or (3) may receive 
dependency and indemnity compensation upon the filing of a claim. The 
claim of such a person for service-connected death benefits shall be 
considered a claim for dependency and indemnity compensation subject to 
confirmation by the claimant. The effective date of payment is 
controlled by the provisions of Sec. 3.400(c)(4).
    (b) Effect on child's entitlement. Where a surviving spouse is 
entitled to death compensation, the amount of which is based in part on 
the existence of a child who has attained the age of 18 years, and 
elects to receive dependency and indemnity compensation, the independent 
award of dependency and indemnity compensation to which the child is 
entitled will be awarded to or for the child without separate election 
by or for the child. Should such a surviving spouse not elect to receive 
dependency and indemnity compensation, the independent dependency and 
indemnity compensation to which a child who has attained 18 years of age 
is entitled, may be awarded upon application by or for the child. The 
effective date of award in these situations will be in accordance with 
Sec. 3.400(c)(4)(ii).
    (c) Limitation. A claim for dependency and indemnity compensation 
may not be filed or withdrawn after the death of the surviving spouse, 
child, or parent.
    (d) Finality of election.(1) Except as noted in paragraph (d)(2), an 
election to receive dependency and indemnity compensation is final and 
the claimant may not thereafter reelect death pension or compensation in 
that case. An election is final when the payee (or the payee's 
fiduciary) has negotiated one check for this benefit or when the payee 
dies after filing an election but prior to negotiation of a check.
    (2) Notwithstanding the provisions of paragraph (d)(1), effective 
November 2, 1994, a surviving spouse who is receiving dependency and 
indemnity compensation may elect to receive death pension instead of 
such compensation.


(Authority: 38 U.S.C. 1317)

    (e) Surviving spouse becomes entitled. A surviving spouse who 
becomes eligible to receive death compensation by reason of liberalizing 
provisions of any law may receive death compensation or elect dependency 
and indemnity compensation even though dependency and indemnity 
compensation has been paid to a child or children of the veteran.
    (f) Death pension rate. (1) Effective October 1, 1961, where the 
monthly rate of dependency and indemnity compensation payable to a 
surviving spouse who has children is less than the monthly rate of death 
pension which would be payable to such surviving spouse if the veteran's 
death had not been service connected, dependency and indemnity 
compensation shall be paid to such surviving spouse in an amount equal 
to the pension rate for any month (or part thereof) in which this rate 
is greater.
    (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 death 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

[[Page 317]]

surviving spouse in an amount equal to the monthly rate of death pension 
which would be payable to the children for any month (or part thereof) 
in which this rate is greater.

(Authority: 38 U.S.C. 1312(b))

    Cross Reference: Deaths prior to January 1, 1957. See Sec. 
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]



Sec. 3.703  Two parents in same parental line.

    (a) General. Death compensation or dependency and indemnity 
compensation is not payable for a child if dependency and indemnity 
compensation is paid to or for a child or to the surviving spouse on 
account of the child by reason of the death of another parent in the 
same parental line where both parents died before June 9, 1960. Where 
the death of one such parent occurred on or after June 9, 1960, 
gratuitous benefits may not be paid or furnished to or on account of any 
child by reason of the death of more than one parent in the same 
parental line.
    (b) Election. The child or his or her fiduciary may elect to receive 
benefits based on the service of either veteran. An election of pension, 
compensation or dependency and indemnity compensation based on the death 
of one parent places the right to such benefits based on the death of 
another parent in suspension. The suspension may be lifted at any time 
by making another election.
    (c) Other payees. Where a child has elected to receive pension, 
compensation, dependency and indemnity compensation or dependents' 
educational assistance under 38 U.S.C. ch. 35 based on the death of a 
veteran, he (or she) will be excluded from consideration in determining 
the eligibility or rate payable to a surviving spouse or another child 
or children in the case of another deceased veteran in the same parental 
line. See Sec. 3.659(b).

    Cross References: Two-parent cases. See Sec. 3.503(a)(7). Two 
parents in same parental line. See Sec. 3.659.

[27 FR 4993, May 29, 1962, as amended at 39 FR 20205, June 7, 1974]



Sec. 3.704  Elections within class of dependents.

    (a) Children. Where children are eligible to receive monthly 
benefits under more than one law in the same case, the election of 
benefits under one law by or on behalf of one child will not serve to 
increase the rate allowable for any other child under another law in 
that case. The rate payable for each child will not exceed the amount 
which would be paid if all children were receiving benefits under the 
same law. Where a child is no longer eligible to receive pension, 
compensation or dependency and indemnity compensation because of having 
elected dependents' educational assistance under 38 U.S.C. chapter 35, 
the child will be excluded from consideration in determining the rate 
payable for another child or children.
    (b) Parents. If there are two parents eligible for dependency and 
indemnity compensation and only one parent files claim for this benefit, 
the rate of dependency and indemnity compensation for that parent will 
not exceed the amount which would be paid to him or her if both parents 
had filed claim for dependency and indemnity compensation. The rate of 
death compensation for the other parent will not exceed the amount which 
would be paid if both parents were receiving this benefit.

[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]



Sec. Sec. 3.705-3.706  [Reserved]



Sec. 3.707  Dependents' educational assistance.

    (a) Child. The conditions applicable to the bar to payment of 
pension, compensation or dependency and indemnity compensation for a 
child concurrently with educational assistance allowance under 38 U.S.C. 
chapter 35 are set forth in Sec. 21.3023 of this chapter.

[[Page 318]]

    (b) Spouse or surviving spouse. There is no bar to the payment of 
pension, compensation or dependency and indemnity compensation to a 
spouse concurrently with educational assistance allowance under 38 
U.S.C. ch. 35.

    Cross References: Discontinuance. See Sec. 3.503(a)(8). 
Certification. See Sec. 3.807.

[34 FR 840, Jan. 18, 1969, as amended at 41 FR 29120, July 15, 1976]



Sec. 3.708  Federal Employees' Compensation.

    (a) Military service--(1) Initial election. Where a person is 
entitled to compensation from the Office of Workers' Compensation 
Programs, under the Federal Employees' Compensation Act (FECA) based 
upon disability or death due to service in the Armed Forces and is also 
entitled based upon service in the Armed Forces to pension, compensation 
or dependency and indemnity compensation under the laws administered by 
the Department of Veterans Affairs, the claimant will elect which 
benefit he or she will receive. Pension compensation, or dependency and 
indemnity compensation may not be paid in such instances by the 
Department of Veterans Affairs concurrently with compensation from the 
Office of Workers' Compensation Programs. Benefits are not payable by 
the Office of Workers' Compensation Programs for disability or death 
incurred on or after January 1, 1957, based on military service.
    (2) Right of reelection. Persons receiving compensation from the 
Office of Workers' Compensation Programs based on death due to military 
service may elect to receive dependency and indemnity compensation at 
any time. Once payment of dependency and indemnity compensation has been 
granted, all further right to FECA benefits is extinguished and only 
dependency and indemnity compensation is payable thereafter.
    (3) Rights of children. Where primary title is vested in the 
surviving spouse, the claimant's election controls the rights of any of 
the veteran's children, regardless of whether they are in the claimant's 
custody and regardless of the fact that such children may not be 
eligible to receive benefits under laws administered by the Office of 
Workers' Compensation Programs. A child who is eligible for dependency 
and indemnity compensation or other benefits independent of the 
surviving spouse's entitlement may receive such benefits concurrently 
with payment of FECA benefits to the surviving spouse.
    (4) Entitlement based on 38 U.S.C. 1151. The provisions of this 
paragraph are applicable also in those cases in which disability or 
death occurs as a result of having submitted to an examination, medical 
or surgical treatment, hospitalization or hospital care, training, or 
compensated work therapy program. See Sec. Sec. 3.58 and 3.361.
    (b) Civilian employment--(1) Same disability or death. Where a 
person is entitled to compensation from the Office of Workers' 
Compensation Programs based upon civilian employment and is also 
entitled to compensation or dependency and indemnity compensation under 
laws administered by the Department of Veterans Affairs for the same 
disability or death, the claimant will elect which benefit he or she 
will receive. On or after September 13, 1960, an award cannot be 
approved for payment of compensation or dependency and indemnity 
compensation concurrently with compensation from the Office of Workers' 
Compensation Programs in such instances and an election to receive 
benefits from either agency is final. See Sec. 3.958. There is no right 
of reelection. (5 U.S.C. 8116(b)) A child who is eligible for dependency 
and indemnity compensation or other benefits independent of the 
surviving spouse's entitlement may receive such benefits concurrently 
with payment of FECA benefits to the surviving spouse.
    (2) Not the same disability or death. There is no prohibition 
against payment of benefits under the Federal Employees' Compensation 
Act concurrently with other benefits administered by the Department of 
Veterans Affairs when such benefits are not based on 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]



Sec. 3.710  Civil service annuitants.

    Department of Veterans Affairs benefits may be paid concurrently 
with

[[Page 319]]

civil service retirement benefits. However, payments will be considered 
income as provided in Sec. 3.262 (e) and (h).

[29 FR 15208, Nov. 11, 1964]



Sec. 3.711  Improved pension elections.

    Except as otherwise provided by this section and Sec. 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 Sec. 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]



Sec. 3.712  Improved pension elections; surviving spouses of 
Spanish-American War veterans.

    (a) General. A surviving spouse of a Spanish-American War veteran 
eligible for pension under 38 U.S.C. 1536 may elect to receive improved 
pension under 38 U.S.C. 1541. Except as provided by Sec. 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 
of reelection.
    (b) Aid and attendance. A surviving spouse of a Spanish-American War 
veteran who is receiving or entitled to receive pension based on need 
for regular aid and attendance shall be paid whichever is the greater: 
The monthly rate authorized by 38 U.S.C. 1536 (a) and (b) and 1544 or 
the monthly rate authorized by 38 U.S.C. 1541 and 544, as 38 U.S.C. 1541 
and 1544 were in effect on December 31, 1978, based on the surviving 
spouse's current income and net worth. Pension under 38 U.S.C. 1541 and 
1544, as in effect on December 31, 1978, is not payable if the current 
size of the surviving spouse's net worth is a bar to payment under Sec. 
3.252(b) or if the surviving spouse's income exceeds the applicable 
limitation as in effect on December 31, 1978. Elections are not required 
for this purpose. The change in rate shall be effective the first day of 
the month in which the facts warrant such change.

(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]



Sec. 3.713  Effective dates of improved pension elections.

    (a) General. Except as provided in paragraph (b) of this section an 
election to receive improved pension shall be effective the date of 
receipt of the election.
    (b) Persons entitled to pension on December 31, 1978. The effective 
date of an election to receive improved pension filed before October 1, 
1979, by a person entitled to receive either old-law pension or section 
306 pension on December 31, 1978, shall be January 1, 1979, or if to the 
beneficiary's advantage, at any date after January 1, 1979, and before 
October 1, 1979. The amount of improved pension payable from the 
effective date of the election shall be reduced by the amount of old-law 
pension or section 306 pension paid to the beneficiary for such period.

(Authority: Sec. 306(d) of Pub. L. 95-588, 92 Stat. 2497).

[44 FR 45944, Aug. 6, 1979]



Sec. 3.714  Improved pension elections--public assistance beneficiaries.

    (a) Definitions. The following definitions are applicable to this 
section.
    (1) Pensioner. This means a person who was entitled to section 306 
or old-law pension, or a dependent of such a person for the purposes of 
chapter 15 of title 38, United States Code as in effect on December 31, 
1978.
    (2) Public assistance. This means payments under the following 
titles of the Social Security Act:
    (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).

[[Page 320]]

    (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. This means a State plan for medical assistance under 
title XIX of the Social Security Act.
    (4) Informed election. The term ``informed election'' means an 
election of improved pension (or a reaffirmation of a previous election 
of improved pension) after the Department of Veterans Affairs has 
complied with the requirements of paragraph (e) of this section.
    (b) General. In some States only a person in receipt of public 
assistance is eligible for medicaid. When this is the case the following 
applies effective January 1, 1979:
    (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. Public assistance (or a 
supplementary payment under Pub. L. 93-233, sec. 13(c)) payable to a 
pensioner may have been terminated because the pensioner's income 
increased as a result of electing improved pension. In this instance 
public assistance (or a supplementary payment under Pub. L. 93-233, sec. 
13(c)) shall be deemed to have remained payable to a pensioner for each 
month after December 1978 when the following conditons are met:
    (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. 
The deemed period of entitlement to public assistance (or a 
supplementary payment under Pub. L. 93-233, sec. 13(c)) ends the first 
calendar month that begins more than 10 days after a pensioner makes an 
informed election of improved pension. (If the pensioner is unable to 
make an informed election the informed election may be made by a member 
of the pensioner's family.) A pensioner who fails to disaffirm a 
previously made election of improved pension within the time limits set 
forth in paragraph (e) of this section shall be deemed to have 
reaffirmed the previous election. This will also end the deemed period 
of entitlement to public assistance.
    (e) Notice of right to make informed election or disaffirm election 
previously made. The Department of Veterans Affairs shall send a written 
notice to each pensioner to whom paragraph (b) of this section applies 
and who is eligible to elect or who has elected improved pension. The 
notice shall be in clear and understandable language. It shall include 
the following:
    (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 electon 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.

[[Page 321]]

    (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 Department of Health and Human Services. The 
Department of Veterans Affairs shall promptly furnish the Department of 
Health and Human Services the following information:
    (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]



Sec. 3.715  Radiation Exposure Compensation Act of 1990.

    Payment to any individual under the provisions of the Radiation 
Exposure Compensation Act of 1990 (Pub. L. 101-426 as amended by Public 
Law 101-510) based upon disability or death resulting from a specific 
disease shall bar payment, or further payment, of compensation or 
dependency and indemnity compensation to or on behalf of that individual 
based upon disability or death resulting from the same disease.

(Authority: 42 U.S.C. 2210 note)

    Cross Reference: See Sec. 3.500(x) for effective date of 
discontinuance.

[58 FR 25564, Apr. 27, 1993]

                               Retirement



Sec. 3.750  Retirement pay.

    (a) General. Except as provided in paragraphs (c) and (d) of this 
section and Sec. 3.751, any person entitled to receive retirement pay 
based on service as a member of the Armed Forces or as a commissioned 
officer of the Public Health Service, the Coast and Geodetic Survey, the 
Environmental Science Services Administration; or the National Oceanic 
and Atmospheric Administration may not receive such pay concurrently 
with benefits payable under laws administered by the Department of 
Veterans Affairs. The term ``retirement pay'' includes retired pay and 
retainer pay.
    (b) Election. A veteran entitled to retirement pay or compensation 
may elect which of the benefits he or she desires to receive. An 
election of retirement pay does not bar him or her from making a 
subsequent election of the other benefit to which he or she is entitled. 
An election filed within 1 year from the date of notification of 
Department of Veterans Affairs entitlement will be considered as 
``timely filed'' for the purpose of Sec. 3.401(e)(1). If the veteran is 
incompetent the 1-year period will begin on the date 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 the effect thereof.
    (c) Waiver. A person specified in paragraph (a) of this section may 
receive compensation upon filing with the service department concerned a 
waiver of so much of his (or her) retirement pay as is equal in amount 
to the compensation to which he (or she) is entitled. In the absence of 
a specific statement to the contrary, the filing of an application for 
compensation by a veteran entitled to retirement pay constitutes such a 
waiver.


(Authority: 38 U.S.C. 5305)

    (d) Pension--(1) Improved pension. A person specified in paragraph 
(a) of this section may receive improved pension and retirement pay 
concurrently without having to waive any portion of the

[[Page 322]]

person's retirement pay. In determining entitlement to improved pension, 
retirement pay shall be treated in the same manner as countable income 
from other sources.
    (2) Old-law and section 306 pension. A person specified in paragraph 
(a) of this section may not receive old-law or section 306 pension and 
retirement pay concurrently without waiver of retirement pay as provided 
in paragraph (c) of this section concerning compensation.

(Authority: 38 U.S.C. 5304(a))

    Cross Reference: Concurrent benefits and elections; general. See 
Sec. 3.700.

[29 FR 12260, Aug. 27, 1964, and 36 FR 5341, Mar. 20, 1971, as amended 
at 41 FR 53797, Dec. 9, 1976; 46 FR 47543, Sept. 29, 1981]



Sec. 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 Sec. 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]



Sec. 3.752  [Reserved]



Sec. 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]



Sec. 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 Sec. 
3.953(b).

[28 FR 72, Jan. 3, 1963]

                            Special Benefits



Sec. 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 
Sec. Sec. 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 Sec. 3.400(i).


(Authority: 38 U.S.C. 1151)


[[Page 323]]


    (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 Sec. 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.
    (b)(1) If death occurred prior to January 1, 1957, the benefit 
payable will be death compensation. See Sec. Sec. 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 
Sec. 3.154. Effective dates; disability or death due to 
hospitalization, etc. See Sec. 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]



Sec. 3.801  Special acts.

    (a) General. A special act is one authorizing the payment of 
benefits to a particular person or persons. If a beneficiary in a 
special act has no claim before the Department of Veterans Affairs, a 
formal applicaton must be filed before benefits may be awarded.
    (b) Limitations. Where the rate, commencement, and duration are 
fixed by a special act, they are not subject to be varied by the 
provisions and limitations of the public laws, but where not fixed, the 
rate and continuance of the benefit is subject to variance in accordance 
with the public laws.
    (c) Provisions of act. (1) When pension or compensation is granted 
by a special act, which fixes the rate and commencement, the rate 
thereunder cannot be increased nor can any other pension or compensation 
be paid in the absence of the payee's election, unless the special act 
expressly states that the benefit granted thereby is in addition to the 
benefit which the person is entitled to receive under any public law.
    (2) If a special act corrects the nature of separation from military 
service and does not grant pension or compensation directly, the 
claimant acquries 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. A special act of Congress, reciting that a person is 
considered to have been mustered into the service on a named date and 
honorably discharged on a subsequently named date, is sufficient 
regardless of whether the service department has any record of such 
service.

[[Page 324]]

    (e) Hospitalization. Pension payable under special acts is subject 
to reduction pursuant to Sec. 3.551.

(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]



Sec. 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 of 
Transportation 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 certified 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.


(Authority: 38 U.S.C. 1560, 1561)

    (b) An award of special pension at the monthly rate specified in 38 
U.S.C. 1562 will be made as of the date of filing of the application 
with the Secretary concerned. 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 may not receive more than 
one special pension.


(Authority: 38 U.S.C. 1562)

    (c) VA will pay to each person who is receiving or who in the future 
receives Medal of Honor pension a retroactive lump sum 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 paragraph (b) of this section. VA will 
calculate the 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 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. VA will not make a retroactive lump 
sum payment under this section before October 1, 2003.


(Authority: 38 U.S.C. 1562(f))

[26 FR 1605, Feb. 24, 1961, as amended at 32 FR 6840, May 4, 1967; 44 FR 
22721, Apr. 17, 1979; 52 FR 34909, Sept. 16, 1987; 68 FR 55467, Sept. 
26, 2003]



Sec. 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]



Sec. 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;

[[Page 325]]

    (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 Sec. 3.12.
    (ii) Line of duty and service connection will be determined as 
outlined in Sec. 3.1(k) and (m) and the Sec. 3.300 series.

[26 FR 1605, Feb. 24, 1961]



Sec. 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 Sec. 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 Sec. 3.50(b). 
Terminated marital relationships. See Sec. 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]



Sec. 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.

[[Page 326]]

    (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]



Sec. 3.807  Dependents' educational assistance; certification.

    For the purposes of dependents' educational assistance under 38 
U.S.C. chapter 35 (see Sec. 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. Basic eligibility exists if the veteran:
    (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 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.
    (b) Service. Service-connected disability or death must have been 
the result of active military, naval, or air service on or after April 
21, 1898. (Pub. L. 89-358) Effective September 30, 1966, educational 
assistance for a child (but not for a spouse or surviving spouse) may be 
authorized based on service in the Philippine Commonwealth Army or as a 
Philippine Scout as defined in Sec. 3.40(b), (c), or (d) of this part.


(Authority: 38 U.S.C. 3565)

    (c) Service connection. For purpose of this section, the term 
``service-connected disability'' encompasses combinations of 
disabilities of paired organs or extremities treated as if service-
connected under the provisions of Sec. 3.383(a) of this part. The 
standards and criteria for determining service connection, either direct 
or presumptive, are those applicable to the period of service during 
which the disability was incurred or aggravated (38 U.S.C. 3501(a)). 
Cases where eligibility for service-connected benefits is established 
under Sec. 3.358, 3.361, or 3.800 are not included.
    (d) Relationship--(1) ``Child'' means the son or daughter of a 
veteran who meets the requirements of Sec. 3.57, except as to age and 
marital status.
    (2) ``Spouse'' means a person whose marriage to the veteran meets 
the requirements of Sec. 3.50(a) of this part.
    (3) ``Surviving spouse'' means a person whose marriage to the 
veteran meets the requirements of Sec. Sec. 3.50(b) or 3.52 of this 
part.

(Authority: 38 U.S.C. 1160, 3501)

    Cross References: Discontinuance. See Sec. 3.503(a)(8) Election; 
concurrent benefits. See Sec. 3.707 Nonduplication. See Sec. 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]



Sec. 3.808  Automobiles or other conveyances; certification.

    A certification of eligibility for financial assistance in the 
purchase of one automobile or other conveyance in an amount not 
exceeding the amount specified in 38 U.S.C. 3902 (including all State, 
local, and other taxes where such are applicable and included in the 
purchase price) and of basic entitlement to necessary adaptive equipment 
will be made where the claimant meets the requirements of paragraphs 
(a), (b) and (c) of this section.
    (a) Service. The claimant must have had active military, naval or 
air service.

[[Page 327]]

    (b) Disability. (1) One of the following must exist and be the 
result of injury or disease incurred or aggravated during active 
military, naval or air service;
    (i) Loss or permanent loss of use of one or both feet;
    (ii) Loss or permanent loss of use of one or both hands;
    (iii) 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[deg] in the better eye.
    (iv) For adaptive equipment eligibility only, ankylosis of one or 
both knees or one or both hips.


(Authority: 38 U.S.C. 3902)

    (2) Veterans not serving on active duty must be entitled to 
compensation for the disability. As to any claimant the disability must 
be service connected in accordance with usual criteria. (See Sec. Sec. 
3.1 (m) and (n), 3.301-3.310.)
    (c) Claim for conveyance and certification for adaptive equipment. A 
specific application for financial assistance in purchasing a conveyance 
is required which must contain a certification by the claimant that the 
conveyance will be operated only by persons properly licensed. The 
application will also be considered as an application for the adaptive 
equipment to insure that the claimant will be able to operate the 
conveyance in a manner consistent with safety and to satisfy the 
applicable standards of licensure of the proper licensing authorities. 
Simultaneously with the certification provided pursuant to the 
introductory text of this section, a claimant for financial assistance 
in the purchase of an automobile will be furnished a certificate of 
eligibility for financial assistance in the purchase of such adaptive 
equipment as may be appropriate to the claimant's losses unless the need 
for such equipment is contraindicated by a physical or legal inability 
to operate the vehicle. There is no time limitation in which to apply. 
An application by a claimant on active duty will be deemed to have been 
filed with VA on the date it is shown to have been placed in the hands 
of military authority for transmittal.


(Authority: 38 U.S.C. 3902)

    (d) Additional eligibility criteria for adaptive equipment. 
Claimants for adaptive equipment must also satisfy the additional 
eligibility criteria of Sec. Sec. 17.156, 17.157, and 17.158 of this 
chapter.


(Authority: 38 U.S.C. 3902)

    (e) Definition. The term adaptive equipment, means generally, that 
equipment which must be part of or added to a conveyance manufactured 
for sale to the general public to make it safe for use by the claimant 
and to assist him or her in meeting the applicable standards of 
licensure of the proper licensing authority.
    (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.

[[Page 328]]

    (3) The term also includes other equipment which the Chief Medical 
Director or designee may deem necessary in an individual case.

[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]



Sec. 3.809  Specially adapted housing under 38 U.S.C. 2101(a).

    A certificate of eligibility for assistance in acquiring specially 
adapted housing under 38 U.S.C. 2101(a) may be extended to a veteran if 
the following requirements are met:
    (a) Service. Active military, naval or air service after April 20, 
1898, is required. Benefits are not restricted to veterans with wartime 
service.
    (b) Disability. The disability must have been incurred or aggravated 
as the result of service as indicated in paragraph (a) of this section 
and the veteran must be entitled to compensation for permanent and total 
disability due to:
    (1) 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, or
    (2) Blindness in both eyes, having only light perception, plus the 
anatomical loss or loss of use of one lower extremity, or
    (3) 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) The loss or loss of use of one lower extremity together with the 
loss of 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.
    (c) Duplication of benefits. The assistance referred to in this 
section will not be available to any veteran more than once.
    (d) ``Preclude locomotion.'' This term means the necessity for 
regular and constant use of a wheelchair, braces, crutches or canes as a 
normal mode of locomotion although occasional locomotion by other 
methods may be possible.

(Authority: 38 U.S.C. 2101, 2104)

    Cross Reference: Assistance to certain disabled veterans in 
acquiring specially adapted housing. See Sec. Sec. 36.4400 through 
36.4410 of this chapter.

[26 FR 1606, Feb. 24, 1961, as amended at 34 FR 9560, June 18, 1969; 43 
FR 14018, Apr. 4, 1978; 46 FR 47543, Sept. 29, 1981]



Sec. 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) may be issued to a veteran who 
served after April 20, 1898, if the following requirements are met:


(Authority: 38 U.S.C. 2101(b))

    (a) The veteran is not entitled to a certificate of eligibility for 
assistance in acquiring specially adapted housing under Sec. 3.809 nor 
had the veteran previously received assistance in acquiring specially 
adapted housing under 38 U.S.C. 2101(a). A veteran who first establishes 
entitlement under this section and who later becomes eligible for a 
certificate of eligibility under Sec. 3.809 may be issued a certificate 
of eligibility under Sec. 3.809. However, no particular type of 
adaptation, improvement, or structural alteration may be provided to a 
veteran more than once.
    (b) The veteran is entitled to compensation for permanent and total 
disability which (1) is due to blindness in both eyes with 5/200 visual 
acuity or less, or (2) includes the anatomical loss or loss of use of 
both hands.


(Authority: 38 U.S.C. 2101(b))

    (c) The assistance referred to in this section will not be available 
to any veteran more than once.

(Authority: 38 U.S.C. 2102)

[46 FR 47543, Sept. 29, 1981, as amended at 53 FR 23237, June 21, 1988]



Sec. 3.810  Clothing allowance.

    (a) Except as provided in paragraph (d) of this section a veteran 
who has a

[[Page 329]]

service-connected disability, or a disability compensable under 38 
U.S.C. 1151 as if it were service-connected, is entitled, upon 
application therefor, to an annual clothing allowance as specified in 38 
U.S.C. 1162. The annual clothing allowance is payable in a lump sum, and 
the following eligibility criteria must also be satisfied:
    (1) A VA examination or hospital or examination report from a 
facility specified in Sec. 3.326(c) discloses that the veteran wears or 
uses certain prosthetic or orthopedic appliances which tend to wear or 
tear clothing (including a wheelchair) because of such disability and 
such disability is the loss or loss of use of a hand or foot compensable 
at a rate specified in Sec. 3.350(a), (b), (c), (d), of (f); or
    (2) The Chief Medical Director or designee certifies that because of 
such disability a prosthetic or orthopedic appliance is worn or used 
which tends to ware or tear the veteran's clothing, or that because of 
the use of a physician-prescribed medication for a skin condition which 
is due to the service-connected disability irreparable damage is done to 
the veteran's outergarments. For the purposes of this paragraph 
``appliance'' includes a wheelchair.
    (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]



Sec. 3.811  Minimum income annuity and gratuitous annuity.

    (a) Eligibility for minimum income annuity. The minimum income 
annuity authorized by Public Law 92-425 as amended is payable to a 
person:
    (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--(1) Annual 
income. VA will determine a beneficiary's annual income for minimum 
income annuity purposes under the provisions of Sec. Sec. 3.271

[[Page 330]]

and 3.272 of this part for beneficiaries receiving improved pension, or 
under Sec. Sec. 3.260 through 3.262 of this part for beneficiaries 
receiving old law or section 306 pensions, except that the amount of the 
minimum income annuity will be excluded from the calculation.
    (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. Other than as provided in paragraph (c) of this 
section, if a beneficiary receiving the minimum income annuity becomes 
ineligible for pension, VA will terminate the minimum income annuity 
effective the same date.

(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]



Sec. 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. (1) A determination must first be made 
that the person on whose earnings record the claim is based either died 
on active duty prior to August 13, 1981, or died as a result of a 
service-connected disability which was incurred or aggravated prior to 
August 13, 1981. For purposes of this determination, character of 
discharge is not a factor for consideration, and death on active duty 
subsequent to August 12, 1981, is qualifying provided that the death 
resulted from a service-connected disability which was incurred or 
aggravated prior to August 13, 1981.
    (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

[[Page 331]]

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--(1) Basic entitlement rate. A basic 
entitlement rate will be computed for each eligible claimant in 
accordance with the provisions of subparagraphs (a)(2) and (b)(2) of 
section 156 of Pub. L. 97-377 using data to be provided by the Social 
Security Administration. This basic entitlement rate will then be used 
to compute the monthly payment rate as described in paragraphs (b)(2) to 
(b)(6) of this section.
    (2) Original or reopened awards to surviving spouses. The monthly 
payment rate shall be equal to the basic entitlement rate increased by 
the overall average percentage (rounded to the nearest tenth of a 
percent) of each legislative increase in dependency and indemnity 
compensation rates under 38 U.S.C. 1311 which became effective 
concurrently with or subsequent to the effective date of the earliest 
adjustment under section 215(i) of the Social Security Act that was 
disregarded in computing the basic entitlement rate.
    (3) Original and reopened awards to children. The monthly payment 
rate shall be equal to the basic entitlement rate increased by the 
overall average percentage (rounded to the nearest tenth of a percent) 
of each legislative increase in the rates of educational assistance 
allowance under 38 U.S.C. 3531(b) which became effective concurrently 
with or subsequent to the effective date of the earliest adjustment 
under section 215(i) of the Social Security Act that was disregarded in 
computing the basic entitlement rate.
    (4) Subsequent legislative increases in rates. The monthly rate of 
special allowance payable to a surviving spouse shall be increased by 
the same overall average percentage increase (rounded to the nearest 
tenth of a percent) and on the same effective date as any legislative 
increase in the rates payable under 38 U.S.C. 1311. The monthly rate of 
special allowance payable to a child shall be increased by the same 
overall average percentage increase (rounded to the nearest tenth of a 
percent) and on the same effective date as any legislative increase in 
the rates payable under 38 U.S.C. 3531(b).
    (5) Amendment of awards. Prompt action shall be taken to amend any 
award of this special allowance to conform with evidence indicating a 
change in basic eligibility, any basic entitlement rate, or any 
effective date previously determined. It is the claimant's 
responsibility to promptly notify VA of any change in their status or 
employment which affects eligibility or entitlement.
    (6) Rounding of monthly rates. Any monthly rate computed under the 
provisions of this paragraph, if not a multiple of $1, shall be rounded 
to the next lower multiple of $1.
    (c) Claimants not entitled to this special allowance. The following 
are not entitled to this special allowance for the reasons indicated.
    (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. VA shall have appellate jurisdiction of 
all determinations made in connection with this special allowance.
    (e) Claims--formal and informal. Formal claims for this special 
allowance must be filed on a form prescribed by the Secretary of 
Veterans Affairs. When informal claims or inquiries as

[[Page 332]]

to eligibility are received, the appropriate application form shall be 
provided. In such cases, the date of receipt of the informal claim or 
inquiry will be accepted as the date of claim for this special allowance 
if a formal claim on the prescribed form is received within one year 
from that date.
    (f) Retroactivity and effective dates. There is no time limit for 
filing a claim for this special allowance. Upon the filing of a claim, 
benefits shall be payable for all periods of eligibility beginning on or 
after the first day of the month in which the claimant first became 
eligible for this special allowance, except that no payment may be made 
for any period prior to January 1, 1983.

(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]



Sec. 3.813  Interim benefits for disability or death due to chloracne 
or porphyria cutanea tarda.

    (a) Disability benefits. Except as provided in paragraph (c) of this 
section, a veteran who served in the active military, naval or air 
service in the Republic of Vietnam during the Vietnam era, and who 
suffers from chloracne or porphyria cutanea tarda which became manifest 
within one year after the date of the veteran's most recent departure 
from the Republic of Vietnam during such service, shall be paid interim 
disability benefits under this section in the same manner and to the 
same extent that compensation would be payable if such disabilities were 
service-connected.
    (b) Death benefits. Except as provided in paragraph (c) of this 
section, if a veteran described in paragraph (a) of this section dies as 
a result of chloracne or porphyria cutanea tarda, the veteran's 
survivors shall be paid interim death benefits under this section based 
upon the same elgibility requirements and at the same rates that 
dependency and indemnity compensation would be payable if the death were 
service-connected.
    (c) Exceptions. Benefits under this section are not payable for any 
month for which compensation or dependency and indemnity compensation is 
payable for the same disability or death, nor are benefits payable under 
this section (1) when there is affirmative evidence that the disease was 
not incurred by the veteran during service in the Republic of Vietnam 
during the Vietnam era, (2) when there is affirmative evidence to 
establish that an intercurrent injury or disease, which is a recognized 
cause of the disease for which benefits are being claimed, was suffered 
by the veteran between the date of the veteran's most recent departure 
from the Republic of Vietnam during active military, naval or air 
service and the onset of the claimed disease, or (3) if it is 
determined, based on evidence in the veteran's service records and other 
records provided by the Secretary of Defense, that the veteran was not 
exposed to dioxin during active military, naval or air service in the 
Republic of Vietnam during the Vietnam era.
    (d) Similarity to service-connected benefits. For purposes of all 
laws administered by VA (except chapters 11 and 13 of title 38 U.S.C.), 
a disease establishing eligibility for disability or death benefits 
under this section shall be treated as if it were service-connected, and 
the receipt of disability or death benefits shall be treated as if such 
benefits were compensation or dependency and indemnity compensation, 
respectively.
    (e) Effective dates. Benefits under this section may not be paid for 
any period prior to October 1, 1984, nor for any period after September 
30, 1986.

(Authority: Pub. L. 98-542)

[50 FR 34460, Aug. 26, 1985]



Sec. 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.

    (a) Monthly monetary allowance. VA will pay a monthly monetary 
allowance under subchapter I of 38 U.S.C. chapter 18, based upon the 
level of disability determined under the provisions of paragraph (d) of 
this section, to or for a person who VA has determined is an individual 
suffering from spina bifida whose biological mother or father is or was 
a Vietnam veteran. Receipt of this allowance will not affect

[[Page 333]]

the right of the individual or any related person to receive any other 
benefit to which he or she may be entitled under any law administered by 
VA. An individual suffering from spina bifida is entitled to only one 
monthly allowance under this section, even if the individual's 
biological father and mother are or were both Vietnam veterans.
    (b) [Reserved]
    (c) Definitions--(1) Vietnam veteran. For the purposes of this 
section, the term ``Vietnam veteran'' means a person who performed 
active military, naval, or air service in the Republic of Vietnam during 
the period beginning on January 9, 1962, and ending on May 7, 1975, 
without regard to the characterization of the person's service. 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.
    (2) Individual. For the purposes of this section, the term 
``individual'' means a person, regardless of age or marital status, 
whose biological father or mother is or was a Vietnam veteran and who 
was conceived after the date on which the veteran first served in the 
Republic of Vietnam during the Vietnam era. Notwithstanding the 
provisions of Sec. . 3.204(a)(1), VA will require the types of evidence 
specified in Sec. Sec. 3.209 and 3.210 sufficient to establish in the 
judgment of the Secretary that a person is the biological son or 
daughter of a Vietnam veteran.
    (3) Spina bifida. For the purposes of this section, the term ``spina 
bifida'' means any form and manifestation of spina bifida except spina 
bifida occulta.
    (d) Disability evaluations. (1) Except as otherwise specified in 
this paragraph, VA will determine the level of payment as follows:
    (i) Level I. The individual walks without braces or other external 
support as his or her primary means of mobility in the community, has no 
sensory or motor impairment of the upper extremities, has an IQ of 90 or 
higher, and is continent of urine and feces without the use of 
medication or other means to control incontinence.
    (ii) Level II. Provided that none of the disabilities is severe 
enough to warrant payment at Level III, and the individual: walks with 
braces or other external support as his or her primary means of mobility 
in the community; or, has sensory or motor impairment of the upper 
extremities, but is able to grasp pen, feed self, and perform self care; 
or, has an IQ of at least 70 but less than 90; or, requires medication 
or other means to control the effects of urinary bladder impairment and 
no more than two times per week is unable to remain dry for at least 
three hours at a time during waking hours; or, requires bowel management 
techniques or other treatment to control the effects of bowel impairment 
but does not have fecal leakage severe or frequent enough to require 
wearing of absorbent materials at least four days a week; or, has a 
colostomy that does not require wearing a bag.
    (iii) Level III. The individual uses a wheelchair as his or her 
primary means of mobility in the community; or, has sensory or motor 
impairment of the upper extremities severe enough to prevent grasping a 
pen, feeding self, and performing self care; or, has an IQ of 69 or 
less; or, despite the use of medication or other means to control the 
effects of urinary bladder impairment, at least three times per week is 
unable to remain dry for three hours at a time during waking hours; or, 
despite bowel management techniques or other treatment to control the 
effects of bowel impairment, has fecal leakage severe or frequent enough 
to require wearing of absorbent materials at least four days a week; or, 
regularly requires manual evacuation or digital stimulation to empty the 
bowel; or, has a colostomy that requires wearing a bag.
    (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 and 
Pension 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

[[Page 334]]

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. Except as otherwise provided, VA will award the 
monetary allowance for an individual suffering from spina bifida based 
on an original claim, a claim reopened after final disallowance, or a 
claim for increase as of the date VA received the claim or the date 
entitlement arose, whichever is later.
    (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. VA will generally reduce or 
discontinue awards according to the facts found except as provided in 
Sec. Sec. 3.105 and 3.114(b).
    (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, 1822, 1823, 1824, 
5101, 5110, 5111, 5112)

[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]



Sec. 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. (1) General. VA will pay a monthly 
monetary allowance under subchapter II of 38 U.S.C. chapter 18 to or for 
an individual whose biological mother is or was a Vietnam veteran and 
who VA has determined to have disability resulting from one or more 
covered birth defects. Except as provided in paragraph (a)(3) of this 
section, the amount of the monetary allowance paid will be based upon 
the level of such disability suffered by

[[Page 335]]

the individual, as determined in accordance with the provisions of 
paragraph (e) of this section.
    (2) Affirmative evidence of cause other than mother's service during 
Vietnam era. No monetary allowance will be provided under this section 
based on a particular birth defect of an individual in any case where 
affirmative evidence establishes that the birth defect results from a 
cause other than the active military, naval, or air service of the 
individual's mother during the Vietnam era and, in determining the level 
of disability for an individual with more than one birth defect, the 
particular defect resulting from other causes will be excluded from 
consideration. This will not prevent VA from paying a monetary allowance 
under this section for other birth defects.
    (3) Nonduplication; spina bifida. In the case of an individual whose 
only covered birth defect is spina bifida, a monetary allowance will be 
paid under Sec. 3.814, and not under this section, nor will the 
individual be evaluated for disability under this section. In the case 
of an individual who has spina bifida and one or more additional covered 
birth defects, a monetary allowance will be paid under this section and 
the amount of the monetary allowance will be not less than the amount 
the individual would receive if his or her only covered birth defect 
were spina bifida. If, but for the individual's one or more additional 
covered birth defects, the monetary allowance payable to or for the 
individual would be based on an evaluation at Level I, II, or III, 
respectively, under Sec. 3.814(d), the evaluation of the individual's 
level of disability under paragraph (e) of this section will be not less 
than Level II, III, or IV, respectively.
    (b) No effect on other VA benefits. Receipt of a monetary allowance 
under 38 U.S.C. chapter 18 will not affect the right of the individual, 
or the right of any person based on the individual's relationship to 
that person, to receive any other benefit to which the individual, or 
that person, may be entitled under any law administered by VA.
    (c) Definitions.
    (1) Vietnam veteran. For the purposes of this section, the term 
Vietnam veteran means a person who performed active military, naval, or 
air service in the Republic of Vietnam during the period beginning on 
February 28, 1961, and ending on May 7, 1975, without regard to the 
characterization of the person's service. 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.
    (2) Individual. For the purposes of this section, the term 
individual means a person, regardless of age or marital status, whose 
biological mother is or was a Vietnam veteran and who was conceived 
after the date on which the veteran first entered the Republic of 
Vietnam during the period beginning on February 28, 1961, and ending on 
May 7, 1975. Notwithstanding the provisions of Sec. 3.204(a)(1), VA 
will require the types of evidence specified in Sec. Sec. 3.209 and 
3.210 sufficient to establish that a person is the biological son or 
daughter of a Vietnam veteran.
    (3) Covered birth defect. For the purposes of this section, the term 
covered birth defect means any birth defect identified by VA as a birth 
defect that is associated with the service of women Vietnam veterans in 
the Republic of Vietnam during the period beginning on February 28, 
1961, and ending on May 7, 1975, and that has resulted, or may result, 
in permanent physical or mental disability. However, the term covered 
birth defect does not include a condition due to a:
    (i) Familial disorder;
    (ii) Birth-related injury; or
    (iii) Fetal or neonatal infirmity with well-established causes.
    (d) Identification of covered birth defects. All birth defects that 
are not excluded under the provisions of this paragraph are 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;

[[Page 336]]

    (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;

[[Page 337]]

    (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. Whenever VA determines, upon receipt of 
competent medical evidence, that an individual has one or more covered 
birth defects, VA will determine the level of disability currently 
resulting, in combination, from the covered birth defects and associated 
disabilities. No monetary allowance will be payable under this section 
if VA determines under this paragraph that an individual has no current 
disability resulting from the covered birth defects, unless VA 
determines that the provisions of paragraph (a)(3) of this section are 
for application. Except as otherwise provided in paragraph (a)(3) of 
this section, VA will determine the level of disability as follows:
    (1) Levels of disability.
    (i) Level 0. The individual has no current disability resulting from 
covered birth defects.
    (ii) Level I. The individual meets one or more of the following 
criteria:
    (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. The individual meets one or more of the following 
criteria:
    (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. The individual meets one or more of the following 
criteria:
    (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. The individual meets one or more of the following 
criteria:
    (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. Physical or mental 
effects on the following functions are to be considered in 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;

[[Page 338]]

    (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. (1) VA may accept statements 
from private physicians, or examination reports from government or 
private institutions, for the purposes of determining whether an 
individual has a covered birth defect and for rating claims for covered 
birth defects. If they are adequate for such purposes, VA may make the 
determination and rating without further examination. In the absence of 
adequate information, VA may schedule examinations for the purpose of 
determining whether an individual has a covered birth defect and/or 
assessing the level of disability.
    (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. VA will reassess a determination under this 
section whenever it receives evidence indicating that a change is 
warranted.
    (h) Referrals. If a regional office is unclear in any case as to 
whether a condition is a covered birth defect, it may refer the issue to 
the Director of the Compensation and Pension Service for determination.
    (i) Effective dates. Except as provided in Sec. 3.114(a) or 
paragraph (i)(1) or (2) of this section, VA will award the monetary 
allowance under subchapter II of 38 U.S.C. chapter 18, for an individual 
with disability resulting from one or more covered birth defects, based 
on an original claim, a claim reopened after final disallowance, or a 
claim for increase, as of the date VA received the claim (or the date of 
birth if the claim is received within one year of that date), the date 
entitlement arose, or December 1, 2001, whichever is latest. Subject to 
the condition that no benefits may be paid for any period prior to 
December 1, 2001:
    (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. VA will generally reduce or 
discontinue awards under subchapter II of 38 U.S.C. chapter 18 according 
to the facts found except as provided in Sec. Sec. 3.105 and 3.114(b).
    (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, 1821, 
1822, 1823, 1824, 5101, 5110, 5111, 5112)

[67 FR 49588, July 31, 2002]



Sec. 3.816  Awards under the Nehmer Court Orders for disability or 

death caused by a condition presumptively associated with herbicide 
exposure.

    (a) Purpose. This section states effective-date rules required by 
orders of a United States district court in the class-action case of 
Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 
TEH (N.D. Cal.).
    (b) Definitions. For purposes of this section--
    (1) Nehmer class member means:
    (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 means a disease for which the 
Secretary of Veterans Affairs has established a presumption of service 
connection before

[[Page 339]]

October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 
102-4, other than chloracne. Those diseases are:
    (i) Type 2 Diabetes (Also known as type II diabetes mellitus or 
adult-onset diabetes).
    (ii) Hodgkin's disease.
    (iii) Multiple myeloma.
    (iv) Non-Hodgkin's lymphoma.
    (v) Acute and Subacute peripheral neuropathy.
    (vi) Porphyria cutanea tarda.
    (vii) Prostate cancer.
    (viii) Respiratory cancers (cancer of the lung, bronchus, larynx, or 
trachea).
    (ix) Soft-tissue sarcoma (as defined in Sec. 3.309(e)).
    (c) Effective date of disability compensation. If a Nehmer class 
member is entitled to disability compensation for a covered herbicide 
disease, the effective date of the award will be as follows:
    (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 Sec. Sec. 3.114 and 3.400.
    (d) Effective date of dependency and indemnity compensation (DIC). 
If a Nehmer class member is entitled to DIC for a death due to a covered 
herbicide disease, the effective date of the award will be as follows:
    (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

[[Page 340]]

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 Sec. 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 Sec. Sec. 3.114 and 3.400.
    (e) Effect of other provisions affecting retroactive entitlement--
(1) General. If the requirements specified in paragraphs (c)(1) or 
(c)(2) or (d)(1) or (d)(2) of this section are satisfied, the effective 
date shall be assigned as specified in those paragraphs, without regard 
to the provisions in 38 U.S.C. 5110(g) or Sec. 3.114 prohibiting 
payment for periods prior to the effective date of the statute or 
regulation establishing a presumption of service connection for a 
covered herbicide disease. However, the provisions of this section will 
not apply if payment to a Nehmer class member based on a claim described 
in paragraph (c) or (d) of this section is otherwise prohibited by 
statute or regulation, as, for example, where a class member did not 
qualify as a surviving spouse at the time of the prior claim or denial.
    (2) Claims Based on Service in the Republic of Vietnam Prior To 
August 5, 1964. If a claim referred to in paragraph (c) or (d) of this 
section was denied by VA prior to January 1, 1997, and the veteran's 
service in the Republic of Vietnam ended before August 5, 1964, the 
effective-date rules of this regulation do not apply. The effective date 
of benefits in such cases shall be determined in accordance with 38 
U.S.C. 5110. If a claim referred to in paragraph (c) or (d) of this 
section was pending before VA on January 1, 1997, or was received by VA 
after that date, and the veteran's service in the Republic of Vietnam 
ended before August 5, 1964, the effective date shall be the later of 
the date provided by paragraph (c) or (d) of this section or January 1, 
1997.

(Authority: Public Law 104-275, sec. 505)
    (f) Payment of Benefits to Survivors or Estates of Deceased 
Beneficiaries. (1) General. If a Nehmer class member entitled to 
retroactive benefits pursuant to paragraphs (c)(1) through (c)(3) or 
(d)(1) through (d)(3) of this section dies prior to receiving payment of 
any such benefits, VA shall pay such unpaid retroactive benefits to the 
first individual or entity listed below that is in existence at the time 
of payment:
    (i) The class member's spouse, regardless of current marital status.

    Note to paragraph (f)(1)(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)(1)(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)(1)(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. The 
provisions of 38 U.S.C. 5121(a) and Sec. 3.1000(a) limiting payment of 
accrued benefits to amounts due and unpaid for a period not to exceed 2 
years do not apply to

[[Page 341]]

payments under this section. The provisions of 38 U.S.C. 5121(c) and 
Sec. 3.1000(c) requiring survivors to file claims for accrued benefits 
also do not apply to payments under this section. When a Nehmer class 
member dies prior to receiving retroactive payments under this section, 
VA will pay the amount to an identified payee in accordance with 
paragraph (f)(1) of this section without requiring an application from 
the payee. Prior to releasing such payment, however, VA may ask the 
payee to provide further information as specified in paragraph (f)(3) of 
this section.
    (3) Identifying payees. VA shall make reasonable efforts to identify 
the appropriate payee(s) under paragraph (f)(1) of this section based on 
information in the veteran's claims file. If further information is 
needed to determine whether any appropriate payee exists or whether 
there are any persons having equal or higher precedence than a known 
prospective payee, VA will request such information from a survivor or 
authorized representative if the claims file provides sufficient contact 
information. Before releasing payment to an identified payee, VA will 
ask the payee to state whether there are any other survivors of the 
class member who may have equal or greater entitlement to payment under 
this section, unless the circumstances clearly indicate that such a 
request is unnecessary. If, following such efforts, VA releases the full 
amount of unpaid benefits to a payee, VA may not thereafter pay any 
portion of such benefits to any other individual, unless VA is able to 
recover the payment previously released.
    (4) Bar to accrued benefit claims. Payment of benefits pursuant to 
paragraph (f)(1) of this section shall bar a later claim by any 
individual for payment of all or any part of such benefits as accrued 
benefits under 38 U.S.C. 5121 and Sec. 3.1000.
    (g) Awards covered by this section. This section applies only to 
awards of disability compensation or DIC for disability or death caused 
by a disease listed in paragraph (b)(2) of this section.

(Authority: 38 U.S.C. 501)

[68 FR 50970, Aug. 25, 2003]

           Incompetents, Guardianship and Institutional Awards



Sec. 3.850  General.

    (a) Payment of benefits to a duly recognized fiduciary may be made 
on behalf of a person who is mentally incompetent or who is a minor; or, 
payment may be made directly to the beneficiary or to a relative or 
other person for the use of the beneficiary, regardless of legal 
disability, when it is determined to be in the best interest of the 
beneficiary by the Veterans Service Center Manager.


(Authority: 38 U.S.C. 5502)

    (1) Unless otherwise contraindicated by evidence of record payment 
will be made direct to the following classes of minors without any 
referral to the Veterans Service Center Manager:
    (i) Those who are serving in or have been discharged from the 
military forces of the United States; and
    (ii) Those who qualify for survivors benefits as a surviving spouse.
    (2) Unless otherwise contraindicated by evidence of record, 
immediate payment of benefits may be made to the spouse of an 
incompetent veteran having no guardian for the use of the veteran and 
his or her dependents prior to referral to the Veterans Service Center 
Manager. (Sec. 13.57 of this chapter.)
    (b) When payments have been discontinued or withheld from a 
fiduciary, benefits may be temporarily paid to the person having custody 
of the minor or incompetent.
    (c) Where a child is in the custody of a natural, adoptive or 
stepparent, benefits payable on behalf of such child may be paid to the 
parent as custodian of the child.
    (d) Benefits due a minor or incompetent adult Indian who is a 
recognized ward of the Government, for whom no fiduciary has been 
appointed, may be paid to the proper officer of the Indian Service 
designated by the Secretary of

[[Page 342]]

the Interior to receive funds for said person.

[26 FR 1606, Feb. 24, 1961, as amended at 27 FR 5431, June 8, 1962; 38 
FR 29076, Oct. 19, 1973; 39 FR 34532, Sept. 26, 1974; 40 FR 36329, Aug. 
20, 1975; 41 FR 12656, Mar. 26, 1976; 45 FR 27436, Apr. 23, 1980; 67 FR 
46868, July 17, 2002]



Sec. 3.851  St. Elizabeths Hospital, Washington, DC.

    Benefits due or becoming due any person who is a patient at St. 
Elizabeths Hospital will be paid to a duly appointed fiduciary of such 
person. The benefits payable to a veteran who has no spouse, child, or 
dependent parent will be paid by an institutional award in accordance 
with Sec. 3.852 if there is no such fiduciary. Benefits payable to 
veterans' dependents who are patients at this hospital will be paid 
direct or to a fiduciary of such dependent, except that any awards now 
being paid to the superintendent will be continued while such dependent 
remains a patient.

[39 FR 34532, Sept. 26, 1974, as amended at 45 FR 27436, Apr. 23, 1980]



Sec. 3.852  Institutional awards.

    (a) When an incompetent veteran entitled to pension, compensation or 
retirement pay is a patient in a hospital or other institution, payments 
on his (or her) account may be made to the chief officer of a Department 
of Veterans Affairs or non-Department of Veterans Affairs institution:
    (1) When no fiduciary has been appointed or when payments to an 
unsatisfactory fiduciary have been discontinued;
    (2) When the Veterans Service Center Manager certifies that a 
fiduciary is not furnishing the chief officer funds required for the 
veteran's comforts and desires not otherwise provided by the 
institution.


(Authority: 38 U.S.C. 501(a); 5307; 5502)

    (b) In an institutional award of pension, compensation or retirement 
pay there may be paid to the chief officer of a non-Department of 
Veterans Affairs institution on behalf of the veteran an amount not in 
excess of $60 per month. An institutional award of disability pension 
will not exceed $25 per month if the award is apportionable under Sec. 
3.454(a).


(Authority: 38 U.S.C. 501)

    (1) All sums, otherwise payable in excess of the institutional 
award, apportionments or awards to fiduciaries, will be deposited in 
Personal Funds of Patients.
    (2) There may be paid on behalf of a veteran, having no spouse, 
child or dependent parent and receiving care in a non-Department of 
Veterans Affairs institution, such additional amount, within the limit 
of the total payable and as may be certified by the Veterans Service 
Center Manager, needed for the benefit of the veteran and to pay for his 
(or her) care and maintenance. Moneys on deposit in Personal Funds of 
Patients will not be used for this purpose except as authorized by the 
Veterans Service Center Manager under Sec. 13.72 of this chapter.
    (3) If the veteran has dependents, or more is payable under his (or 
her) rating, or there are funds to his (or her) credit in ``Funds Due 
Incompetent Beneficiaries,'' such additional amount as may be needed 
will be allowed on the basis of a certification by the chief officer 
with respect to need and amount required.
    (c) Where there arises a situation as enumerated in paragraph (a)(1) 
of this section, apportionment to dependents will be under Sec. 3.451.


(Authority: 38 U.S.C. 5307)

    (d) Any excess funds held by the chief officer of a non-Department 
of Veterans Affairs institution, not necessary for the benefit of the 
veteran, will be returned to the Department of Veterans Affairs or to a 
fiduciary, if one is serving. Upon death of a veteran with no surviving 
heirs, excess funds will be returned to the Department of Veterans 
Affairs.

(Authority: 38 U.S.C. 5502)

    Cross References: Veterans Benefits Apportionable. See Sec. 3.452. 
Payment to Chief

[[Page 343]]

Officer of Institution. See Sec. 13.61 of this chapter.

[26 FR 1606, Feb. 24, 1961, as amended at 27 FR 5431, June 8, 1962; 38 
FR 29076, Oct. 19, 1973; 39 FR 12100, Apr. 3, 1974; 40 FR 36329, Aug. 
20, 1975; 45 FR 27436, Apr. 23, 1980; 68 FR 34543, June 10, 2003]



Sec. 3.853  Incompetents; estate over $25,000.

    (a) Effective November 1, 1990, through September 30, 1992, where a 
veteran:
    (1) Is rated incompetent by VA, and
    (2) Has neither spouse, child, nor dependent parent, and
    (3) Has an estate, excluding the value of the veteran's home, which 
exceeds $25,000, further payments of compensation shall not be made 
until the estate is reduced to less than $10,000. The value of the 
veteran's estate shall be computed under the provisions of Sec. 13.109 
of this chapter. Payment of compensation shall be discontinued the last 
day of the first month in which the veteran's estate exceeds $25,000.
    (b) Where payment of compensation has been discontinued by reason of 
paragraph (a) of this section, it shall not be resumed for any period 
prior to October 1, 1992, until VA has received evidence showing the 
estate has been reduced to less than $10,000, or any criterion of 
paragraph (a) (1) or (2) of this section is no longer met. Payments 
shall not be made for any period prior to the date on which the estate 
was reduced to less than $10,000, or a criterion of paragraph (a) (1) or 
(2) of this section was no longer met.
    (c) If a veteran denied payment of compensation under paragraph (a) 
of this section is subsequently rated competent for more than 90 days, 
the withheld compensation shall be paid to the veteran in a lump-sum. 
However, a lump-sum payment shall not be made to or on behalf of a 
veteran who, within such 90-day period, dies or is again rated 
incompetent.

(Authority: 38 U.S.C. 5505)

[56 FR 65853, Dec. 19, 1991, as amended at 68 FR 34543, June 10, 2003]



Sec. 3.854  Limitation on payments for minor.

    Benefits will not be authorized to a fiduciary recognized or 
appointed for a child, by reason of its minority, for any period 
subsequent to the day preceding the date on which the child will attain 
its majority under the law of the State in which the child resides. 
Payments on or after that date, if otherwise in order, will be made 
direct to the child, if competent, or, if incompetent and direct payment 
under Sec. 3.850 is not in order, to a fiduciary appointed for the 
child as a mentally incompetent adult.

[39 FR 34533, Sept. 26, 1974]



Sec. 3.855  Beneficiary rated or reported incompetent.

    (a) General. Payments being made directly to a beneficiary who is or 
may be incompetent will not be routinely suspended pending certification 
of a fiduciary (or a recommendation that payments should be paid 
directly to the beneficiary) by the Veterans Service Center Manager or 
development of the issue of incompetency.
    (b) Application. This policy applies to all cases including (but not 
limited to) the following:
    (1) Notice or evidence is received that a guardian has been 
appointed for the beneficiary.
    (2) Notice or evidence is received that the beneficiary has been 
committed to a hospital.
    (3) The beneficiary has been rated incompetent by the Department of 
Veterans Affairs.

[42 FR 2069, Jan. 10, 1977]



Sec. 3.856  Change of name of female fiduciary.

    If a female fiduciary receiving benefits in such capacity marries or 
is restored to her former name by divorce decree, her statement setting 
forth her present name may be accepted.

[39 FR 34533, Sept. 26, 1974]



Sec. 3.857  Children's benefits to fiduciary of surviving spouse.

    Where children are separated from the surviving spouse by reason of 
her (or his) incompetency, no apportionment is required. All amounts 
payable on behalf of the children may be paid to the fiduciary of the 
surviving spouse provided the fiduciary is adequately taking care of the 
needs of the children

[[Page 344]]

from the beneficiary's estate voluntarily or pursuant to a decree of 
court.

[39 FR 12100, Apr. 3, 1974, as amended at 62 FR 5529, Feb. 6, 1997]

                               Forfeiture



Sec. 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 Sec. 3.901(d), 
Sec. 3.902(d), or Sec. 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 Sec. 3.901(c) or 
Sec. 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]



Sec. 3.901  Fraud.

    (a) Definition. An act committed when a person knowingly makes or 
causes to be made or conspires, combines, aids, or assists in, agrees 
to, arranges for, or in any way procures the making or presentation of a 
false or fraudulent affidavit, declaration, certificate, statement, 
voucher, or paper, concerning any claim for benefits under any of the 
laws administered by the Department of Veterans Affairs (except laws 
relating to insurance benefits).
    (b) Effect on claim. For the purposes of paragraph (d) of this 
section, any person who commits fraud forfeits all rights to benefits 
under all laws administered by the Department of Veterans Affairs other 
than laws relating to insurance benefits.
    (c) Forfeiture before September 2, 1959. Where forfeiture for fraud 
was declared before September 2, 1959, in the case of a veteran entitled 
to disability compensation, the compensation payable except for the 
forfeiture may be paid to the veteran's spouse, children and parents 
provided the decision to apportion was authorized prior to September 2, 
1959. The total amount payable will be the lesser of these amounts:


(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. After September 1, 1959, 
forfeiture by reason of fraud may be declared only
    (1) Where the person was not residing or domiciled in a State as 
defined in Sec. 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 Sec. 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. 
Where it is determined that a forfeiture for fraud which was imposed 
prior to September 2, 1959, would not be imposed under the law and 
regulation in effect on and after September 2, 1959, the forfeiture 
shall be remitted effective June 30,

[[Page 345]]

1972. Benefits to which a person becomes eligible by virtue of the 
remission, upon application therefor, shall be awarded effective as 
provided by Sec. 3.114.

(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]



Sec. 3.902  Treasonable acts.

    (a) Definition. An act of mutiny, treason, sabotage or rendering 
assistance to an enemy of the United States or of its allies.
    (b) Effect on claim. For the purposes of paragraph (d) of this 
section, any person determined by the Department of Veterans Affairs to 
be guilty of a treasonable act forfeits all gratuitous benefits under 
laws administered by the Department of Veterans Affairs which he or she 
may be receiving or would have been entitled to receive in the future.
    (c) Forfeiture before September 2, 1959. Where forfeiture for 
treasonable acts was declared before September 2, 1959, the Secretary 
may pay any part of benefits so forfeited to the dependents of the 
person provided the decision to apportion was authorized prior to 
September 2, 1959, except that the amount may not be in excess of that 
which the dependent would be entitled to as a death benefit.


(Authority: 38 U.S.C. 6104(c))

    (1) Compensation. Whenever a veteran entitled to disability 
compensation has forfeited his or her right, any part of the 
compensation payable except for the forfeiture may be paid to the 
veteran's spouse, children and parents. The total amount payable will be 
the lesser of these amounts:
    (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. Whenever a veteran entitled to pension has forfeited 
his or her right, any part of the pension payable except for the 
forfeiture provision may be paid to the veteran's spouse and children. 
The total amount payable will be the lesser of these amounts:
    (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. After September 1, 1959, 
forfeiture by reason of a treasonable act may be declared only
    (1) Where the person was not residing or domiciled in a State as 
defined in Sec. 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 Sec. 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. A treasonable act committed by a child or children, 
regardless of age, who are in the surviving spouse's custody and 
included in an award to such person will not affect the award to the 
surviving spouse.

[27 FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, 1988]



Sec. 3.903  Subversive activities.

    (a) Definition. Any offense for which punishment is prescribed: (1) 
In title 18 U.S.C., sections 792, 793, 794, 798, 2381 through 2385, 2387 
through 2390, and chapter 105;
    (2) In the Uniform Code of Military Justice, Articles 94, 104 and 
106 (10 U.S.C. 894, 904, and 906);
    (3) In the following sections of the Atomic Energy Act of 1954: 
Sections 222 through 226 (42 U.S.C. 2272-2276); and
    (4) In section 4 of the Internal Security Act of 1950 (50 U.S.C. 
783).
    (b) Effect on claim. (1) Any person who is convicted after September 
1, 1959, of subversive activities shall from and after the date of 
commission of such offense have no right to gratuitous benefits 
(including the right to burial in a

[[Page 346]]

national cemetery) under laws administered by the Department of Veterans 
Affairs based on periods of military, naval, or air service commencing 
before the date of the commission of such offense and no other person 
shall be entitled to such benefits on account of such person.
    (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. Where any person whose right to benefits 
has been so terminated is granted a pardon of the offense by the 
President of the United States, the right to such benefits shall be 
restored as of the date of such pardon, if otherwise eligible.

(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]



Sec. 3.904  Effect of forfeiture after veteran's death.

    (a) Fraud. Whenever a veteran has forfeited his or her right by 
reason of fraud, his or her surviving dependents upon proper application 
may be paid pension, compensation, or dependency and indemnity 
compensation, if otherwise eligible. No benefits are payable to any 
person who participated in the fraud causing the forfeiture.


(Authority: 38 U.S.C. 6103(c))

    (b) Treasonable acts. Death benefits may be paid as provided in 
paragraph (a) of this section where forfeiture by reason of a 
treasonable act was declared before September 2, 1959, and such benefits 
were authorized prior to that date. Otherwise, no award of gratuitous 
benefits (including the right to burial in a national cemetery) may be 
made to any person based on any period of service commencing before the 
date of commission of the offense which resulted in the forfeiture.


(Authority: 38 U.S.C. 6104(c))

    (c) Subversive activities. Where the veteran was convicted of 
subversive activities after September 1, 1959, no award of gratuitous 
benefits (including the right to burial in a national cemetery) may be 
made to any person based on any period of service commencing before the 
date of commission of the offense which resulted in the forfeiture 
unless the veteran had been granted a pardon of the offense by the 
President of the United States. If pardoned, the veteran's surviving 
dependents upon proper application may be paid pension, compensation or 
dependency and indemnity compensation, if otherwise eligible, and the 
right to burial in a national cemetery is restored.

(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]



Sec. 3.905  Declaration of forfeiture or remission of forfeiture.

    (a) Jurisdiction. At the regional office level, except in VA 
Regional Office, Manila, Philippines, the Regional Counsel is authorized 
to determine whether the evidence warrants formal consideration as to 
forfeiture. In the Manila Regional Office the Veterans Service Center 
Manager is authorized to make this determination. Submissions may also 
be made by the director of a service, the Chairman, Board of Veterans 
Appeals, and the General Counsel. Jurisdiction to determine whether the 
claimant or payee has forfeited the right to gratuitous benefits or to 
remit a prior forfeiture is vested in the Director, Compensation and 
Pension Service, and personnel to whom authority has been delegated 
under the provisions of Sec. 3.100(c).
    (b) Fraud or treasonable acts. Forfeiture of benefits under Sec. 
3.901 or Sec. 3.902 will not be declared until the person has been 
notified by the Regional Counsel or, in VA Regional Office, Manila, 
Philippines, the Veterans Service Center Manager, of the right to 
present a defense. Such notice shall consist of

[[Page 347]]

a written statement sent to the person's latest address of record 
setting forth the following:
    (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. Automatic forfeiture of benefits under 
Sec. 3.903 will be effectuated by an official authorized to declare a 
forfeiture as provided in paragraph (a) of this section.
    (d) Finality of decisions. A decision of forfeiture is subject to 
the provisions of Sec. 3.104(a) and Sec. Sec. 20.1103 and 20.1104 of 
this chapter. The officials authorized to file administrative appeals 
and the time limit for filing such appeals are set forth in Sec. 19.51 
of this chapter.
    (e) Remission of forfeiture. In event of remission of forfeiture 
under Sec. 3.901(e), any amounts paid as an apportionment(s) during 
periods of the previously forfeited beneficiary's reentitlement will be 
offset.

    Cross References: Effective dates; forfeiture. See Sec. 3.400(m). 
Reductions and discontinuances; fraud. See Sec. 3.500(k). Reductions 
and discontinuances; treasonable acts or subversive activities. See 
Sec. 3.500(s). Adjustments and resumptions. See Sec. 3.669. Burial 
benefits. See Sec. 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]

                               Protection



Sec. 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]



Sec. 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]



Sec. 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

[[Page 348]]

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 evalation 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]



Sec. 3.953  Pub. L. 85-56 and Pub. L. 85-857.

    (a) In receipt of or entitled to receive benefits on December 31, 
1958. Any person receiving or entitled to receive benefits under any 
public law administered by the Department of Veterans Affairs on 
December 31, 1958, may, except where there was fraud, clear and 
unmistakable error of fact or law, or misrepresentation of material 
facts, continue to receive such benefits as long as the conditions 
warranting such payment under those laws continue. The greater benefit 
under the previous law or the corresponding section of title 38 U.S.C., 
will be paid in the absence of an election to receive the lesser 
benefit.


(Authority: Section 10, Pub. L. 85-857)

    (b) Emergency officers' retirement pay. Any person who was 
receiving, or entitled to receive, emergency officers' retirement pay, 
or other privileges or benefits as a retired emergency officer of World 
War I, on December 31, 1958, under the laws in effect on that day, will, 
except where there was fraud, clear and unmistakable error as to 
conclusion of fact or law, or misrepresentation of material facts, 
continue to receive, or be entitled to receive, emergency officers' 
retirement pay at the rate otherwise payable on December 31, 1958, and 
such other privileges and benefits, so long as the conditions warranting 
such pay, privileges, and benefits under those laws continue.


(Authority: Section 11, Pub. L. 85-857)

    (c) Service connection established under prior laws. In the absence 
of fraud, misrepresentation of material facts or clear and unmistakable 
error, all cases where compensation was payable on December 31, 1957, 
for disability service connected under prior laws, repealed by Pub. L. 
85-56, including those service connected under the second proviso of 
section 200 of the World War Veterans' Act, 1924, as amended, are 
protected by section 2316(b), Pub. L. 85-56 and section 10, Pub. L. 85-
857 as to both service connection and rate of compensation, so long as 
the conditions warranting such status and rate continue. Any disability 
so service connected may be evaluated under the Schedule for Rating 
Disabilities, 1945 (looseleaf edition) and benefits awarded on the basis 
thereof, as well as special monthly compensation under 38 U.S.C. 1114, 
provided such action results in compensation payable at a rate equal to 
or higher than that payable on December 31, 1957. Where a changed 
physical condition warrants reevaluation of service-connected 
disabilities, compensation will be awarded under the provisions of 38 
U.S.C. 1114.

[26 FR 1608, Feb. 24, 1961, as amended at 26 FR 8561, Sept. 13, 1961; 26 
FR 12766, Dec. 30, 1961]



Sec. 3.954  Burial allowance.

    When any person who had a status under any law in effect on December 
31, 1957, which afforded entitlement to burial benefits dies, the burial 
allowance will be paid, if otherwise in order, even though such status 
does not meet the service requirements of 38 U.S.C. ch. 23.

(Authority: 38 U.S.C. 2305)

[26 FR 1608, Feb. 24, 1961]



Sec. Sec. 3.955-3.956  [Reserved]



Sec. 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

[[Page 349]]

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 Sec. 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]



Sec. 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]



Sec. 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]



Sec. 3.960  Section 306 and old-law pension protection.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, any person eligible to elect improved pension under Sec. 3.711 
or 3.712 who is in receipt of section 306 or old-law pension on December 
31, 1978, shall in the absence of an election to receive improved 
pension, continue to receive such pension at the monthly rate payable on 
December 31, 1978.
    (b) Termination. Pension payable under paragraph (a) of this section 
shall be terminated for any one of the following reasons:
    (1) A veteran pensioner ceases to be permanently and totally 
disabled.
    (2) A surviving spouse pensioner ceases to meet the definition of 
surviving spouse in 38 U.S.C. 101(3).
    (3) A child pensioner ceases to meet the definition of child in 38 
U.S.C. 101(4).
    (4) A section 306 pensioner's countable annual income, determined 
under Sec. Sec. 3.250 to 3.270, exceeds the applicable amount stated in 
Sec. 3.26(a).
    (5) An old-law pensioner's countable annual income determined under 
Sec. Sec. 3.250 to 3.270 exceeds the applicable amount stated in Sec. 
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 Sec. 3.263.
    (c) Reduction. The pension rate payable under paragraph (a) of this 
section shall be reduced by the amount of any additional pension payable 
by reason of a dependent upon the loss of such dependent. A veteran or 
surviving spouse who no longer has any dependents shall not continue to 
receive either section 306 pension or old-law pension if countable 
annual income exceeds the appropriate rate in Sec. 3.26(a), (b), or 
(c).
    (d) Finality of termination. Termination of section 306 pension or 
old-law pension for one of the reasons listed in paragraph (b) of this 
section precludes a person from thereafter establishing entitlement 
under any other pension program except the improved pension program.

(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



Sec. 3.1000  Entitlement under 38 U.S.C. 5121 to benefits due and 
unpaid upon death of a beneficiary.

    (a) Basic entitlement. Except as provided in Sec. Sec. 3.1001 and 
3.1008, where death occurred on or after December 1, 1962, periodic 
monetary benefits (other than insurance and servicemembers' indemnity) 
authorized under laws administered by the Department of Veterans 
Affairs, to which a payee was entitled at his death under existing 
ratings or decisions, or those based on evidence in

[[Page 350]]

the file at date of death, and due and unpaid for a period not to exceed 
2 years prior to the last date of entitlement as provided in Sec. 
3.500(g) will, upon the death of such person, be paid as follows:


(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 death pension, compensation, or dependency and 
indemnity compensation.
    (4) 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 Sec. 3.1002.)
    (b) Apportionments. (1) Upon the death of a person receiving an 
apportioned share of benefits payable to a veteran, all or any part of 
such unpaid amount is payable to the veteran or to any other dependent 
or dependents of the veteran.


(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)(4) of this section, on the expenses of such 
deceased child's last sickness or burial.
    (c) Claims and evidence. Application for accrued benefits must be 
filed within 1 year after the date of death. A claim for death pension, 
compensation, or dependency and indemnity compensation, by an 
apportionee, surviving spouse, child or parent is deemed to include 
claim for any accrued benefits. (See Sec. 3.152(b)).
    (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)(4) 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. (1) Spouse means the surviving spouse of the 
veteran, whose marriage meets the requirements of Sec. 3.1(j) or Sec. 
3.52. Where the marriage meets the requirements of Sec. 3.1(j) date of 
marriage and continuous cohabitation are not factors.
    (2) Child is as defined in Sec. 3.57 and includes an unmarried 
child who became permanently incapable of self-support prior to 
attaining 18 years of age as well as an unmarried child over the age of 
18 but not over 23 years of age, who was pursuing a course of 
instruction within the meaning of Sec. 3.57 at the time of the payee's 
death. However, upon the death of a child in receipt of death pension, 
compensation, or dependency and indemnity compensation, any accrued will 
be payable to the surviving

[[Page 351]]

child or children of the veteran entitled to death pension, 
compensation, or dependency and indemnity compensation. Upon the death 
of a child, another child who has elected dependents' educational 
assistance under 38 U.S.C. chapter 35 may receive accrued death pension, 
compensation, or dependency and indemnity compensation, payable on 
behalf of the deceased child for periods prior to the commencement of 
benefits under that chapter.
    (3) Dependent parent is as defined in Sec. 3.59: Provided, That the 
mother or father was dependent within the meaning of Sec. 3.250 at the 
date of the veteran's death.
    (4) Evidence in the file at date of death means evidence in VA's 
possession on or before the date of the beneficiary's death, even if 
such evidence was not physically located in the VA claims folder on or 
before the date of death.
    (e) Subsistence allowance. Subsistence allowance under the 
provisions of 38 U.S.C. ch. 31 remaining due and unpaid at the date of 
the veteran's death, is payable under the provisions of this section.
    (f) Dependents' educational assistance. Educational assistance 
allowance or special restorative training allowance under 38 U.S.C. ch. 
35, remaining due and unpaid at the date of death of an eligible 
surviving spouse or eligible child is payable to a child or children of 
the veteran (see paragraphs (a)(2), (a)(3) and (d)(2) of this section), 
or on the expenses of last sickness and burial (see paragraph (a)(4) of 
this section.) Benefits due and unpaid at the date of death of an 
eligible spouse are payable only on the expenses of last sickness and 
burial (see paragraph (a)(4) of this section).
    (g) Veterans educational assistance. Educational assistance 
allowance under 38 U.S.C chapters 30, 32, or 34, and 10 U.S.C. chapter 
1606 remaining due and unpaid at the date of the veteran's death is 
payable under the provisions of this section.


(Authority: 38 U.S.C. 5121)

    (h) Clothing allowance. Clothing allowance under 38 U.S.C. 1162 
remaining due and unpaid at the date of the veteran's death is payable 
under the provisions of this section.

[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]



Sec. 3.1001  Hospitalized competent veterans.

    The provisions of this section apply only to the payment of amounts 
actually withheld on a running award under Sec. 3.551(b) which are 
payable in a lump sum after the veteran's death.
    (a) Basic entitlement. Where an award of disability pension for a 
competent veteran without dependents was reduced because of hospital 
treatment or institutional or domiciliary care by the Department of 
Veterans Affairs and the veteran dies while receiving such treatment or 
care or before payment of amounts withheld, the lump sum is payable to 
the living person first listed as follows:
    (1) The veteran's spouse, as defined in Sec. 3.1000(d)(1);
    (2) The veteran's children (in equal shares), as defined in Sec. 
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 Sec. 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 Sec. 3.1002.)
    (b) Claim. Applications must be filed with the Department of 
Veterans Affairs within 5 years after the death of the veteran. If, 
however, any person otherwise entitled is under legal disability at the 
time of the veteran's death, the 5-year period will run from the date of 
termination or removal of the legal disability.
    (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

[[Page 352]]

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. The 
provisions of paragraphs (a) and (b) of this section will apply in the 
event of the death of any veteran prior to receiving a lump sum which 
was withheld because treatment or care was terminated against medical 
advice or as the result of disciplinary action.

(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]



Sec. 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 Sec. 3.1(o)).

(Authority: 38 U.S.C. 5121(b) and 5502(d))

[39 FR 15126, May 1, 1974]



Sec. 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 
Sec. 3.1000(a)(1) through (4), except that the total amount payable 
shall not include any payment for the month in which the payee died (see 
Sec. 3.500(g)), and payments to persons described in Sec. 3.1000(a)(4) 
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 Sec. 
3.1000(a)(1) through (4), 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 Sec. 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 Sec. 3.551(b) or Sec. 3.557. 
These amounts are subject to the provisions of Sec. Sec. 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]



Sec. Sec. 3.1004-3.1006  [Reserved]



Sec. 3.1007  Hospitalized incompetent veterans.

    Where an award of disability pension for an incompetent veteran 
without dependents was reduced under Sec. 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 Sec. 
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 includes cases in

[[Page 353]]

which a check was issued and the veteran died before negotiating the 
check.

(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]



Sec. 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]



Sec. 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. Gratuitous benefits shall be paid to the 
living person first listed as follows:
    (1) His or her spouse, as defined in Sec. 3.1000(d)(1);
    (2) His or her children (in equal shares), as defined in Sec. 3.57 
but without regard to their age or marital status;
    (3) His or her dependent parents (in equal shares) as defined in 
Sec. 3.59 or the surviving parent, provided that the parent was 
dependent within the meaning of Sec. 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 Sec. 3.1002.)


(Authority: 38 U.S.C. 5502(d))

    (b) Claim. Application must be filed with the Department of Veterans 
Affairs within 5 years after the death of the veteran. If, however, any 
person otherwise entitled is under legal disability at the time of the 
veteran's death, the 5-year period will run from the date of termination 
or removal of the legal disability.
    (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]



                        Subpart B_Burial Benefits

    Authority: 105 Stat. 386, 38 U.S.C. 501(a), 2302-2308, unless 
otherwise noted.



Sec. 3.1600  Payment of burial expenses of deceased veterans.

    For the purpose of payment of burial expenses the term veteran 
includes a person who died during a period deemed to be active military, 
naval or air service under Sec. 3.6(b)(6). The period of active service 
upon which the claim is based must have been terminated by discharge or 
release from active service under conditions other than dishonorable.
    (a) Service-connected death and burial allowance. If a veteran dies 
as a result of a service-connected disability or disabilities, an amount 
not to exceed the amount specified in 38 U.S.C. 2307 (or if entitlement 
is under Sec. 3.40 (c) or (d), an amount computed in accordance with 
the provisions of Sec. 3.40(c)) may be paid toward the veteran's 
funeral and burial expenses including the cost of transporting the body 
to the place of burial. Entitlement to this benefit is subject to the 
applicable further provisions of

[[Page 354]]

this section and Sec. Sec. 3.1601 through 3.1610. Payment of the 
service-connected death burial allowance is in lieu of payment of any 
benefit authorized under paragraph (b), (c) or (f) of this section.


(Authority: 38 U.S.C. 2307)

    (b) Nonservice-connected death burial allowance. If a veteran's 
death is not service-connected, an amount not to exceed the amount 
specified in 38 U.S.C. 2302 (or if entitlement is under Sec. 3.40 (c) 
or (d), an amount computed in accordance with the provisions of Sec. 
3.40(c)) may be paid toward the veteran's funeral and burial expenses 
including the cost of transporting the body to the place of burial. 
Entitlement is subject to the following conditions:
    (1) At the time of death the veteran was in receipt of pension or 
compensation (or but for the receipt of military retirement pay would 
have been in receipt of compensation); or
    (2) The veteran has an original or reopened claim for either benefit 
pending at the time of the veteran's death, and
    (i) In the case of an original claim there is sufficient evidence of 
record on the date of the veteran's death to have supported an award of 
compensation or pension effective prior to the date of the veteran's 
death, or
    (ii) In the case of a reopened claim, there is sufficient prima 
facie evidence of record on the date of the veteran's death to indicate 
that the deceased would have been entitled to compensation or pension 
prior to date of death. If the Department of Veterans Affairs determines 
that additional evidence is needed to confirm that the deceased would 
have been entitled prior to death, it shall be submitted within 1 year 
from date of request to the burial allowance claimant for submission of 
the confirming evidence. If the confirming evidence is not received by 
the Department of Veterans Affairs within 1 year from date of request, 
the burial allowance claim shall be disallowed; or
    (3) The deceased was a veteran of any war or was discharged or 
released from active military, naval, or air service for a disability 
incurred or aggravated in line of duty, and the body of the deceased is 
being held by a State (or a political subdivision of a State), and the 
Secretary determines,
    (i) That there is no next of kin or other person claiming the body 
of the deceased veteran, and
    (ii) That there are not available sufficient resources in the 
veteran's estate to cover burial and funeral expenses; and


(Authority: 38 U.S.C. 2302(a))

    (4) The applicable further provisions of this section and Sec. Sec. 
3.1601 through 3.1610.


(Authority: 38 U.S.C. 501, 2302)

    (c) Death while properly hospitalized. If a person dies from non-
service-connected causes while properly hospitalized by VA, there is 
payable an allowance not to exceed the amount specified in 38 U.S.C. 
2303(a) for the actual cost of the person's funeral and burial, and an 
additional amount for transportation of the body to the place of burial. 
For burial allowance purposes, the term hospitalized by VA means 
admission 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); admission (transfer) 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; admission (transfer) to a nursing home under the 
authority of 38 U.S.C. 1720 for nursing home care at the expense of the 
United States; or admission (transfer) to a State nursing home for 
nursing home care with respect to which payment is authorized under the 
authority of 38 U.S.C. 1741. (If the hospitalized person's death is 
service-connected, entitlement to the burial allowance and 
transportation expenses fall under paragraphs (a) and (g) of this 
section instead of this paragraph.)


(Authority: 38 U.S.C. 2303(a))

    (d) Determinations. Where a claim for burial allowance would be or 
has been disallowed because the service department holds that the 
disability was not incurred in line of duty and evidence is submitted 
which permits a different

[[Page 355]]

finding, the decision of the service department is not binding and the 
Department of Veterans Affairs will determine line of duty. The burden 
of proof will rest upon the claimant.
    (e) Persons not included. Except as provided in Sec. 3.1605(c) 
burial allowance is not payable in the following cases:
    (1) A discharged or rejected draftee or selectee.
    (2) A member of the National Guard who reported to camp in answer to 
the President's call for World War I or World War II service, but who, 
when medically examined was not finally accepted for active military 
service.
    (3) An alien who does not come within the purview of Sec. 3.7(b).
    (4) Philippine Scouts enlisted on or after October 6, 1945, under 
section 14, Pub. L. 190, 79th Congress.
    (5) Temporary members of the Coast Guard Reserve.
    (f) Plot or interment allowance. When a veteran dies from 
nonservice-connected causes, an amount not to exceed the amount 
specified in 38 U.S.C. 2303(b) (or if the entitlement is under Sec. 
3.40 (c) or (d), an amount computed in accordance with the provisions of 
Sec. 3.40(c)) may be paid as a plot or interment allowance. The plot or 
interment allowance is payable to the person or entity who incurred the 
expenses. (For payment to a State or political subdivision thereof, see 
Sec. 3.1604(c).) Entitlement is subject to the following conditions:
    (1) The deceased veteran is eligible for the burial allowance under 
paragraph (b) or (c) of this section; or
    (2) The veteran served during a period of war and the conditions set 
forth in Sec. 3.1604(d)(1)(ii)-(v) (relating to burial in a state 
veterans' cemetery) are met; or


(Authority: 38 U.S.C. 2303(b)(2))

    (3) The veteran was discharged from the active military, naval, or 
air service for a disability incurred or aggravated in line of duty (or 
at time of discharge has such a disability, shown by official service 
records, which in medical judgment would have justified a discharge for 
disability; the official service department record showing that the 
veteran was discharged or released from service for disability incurred 
in line of duty will be accepted for determining entitlement to the plot 
or interment allowance notwithstanding that the Department of Veterans 
Affairs has determined, in connection with a claim for monetary 
benefits, that the disability was not incurred in line of duty); and
    (4) The veteran is not buried in a national cemetery or other 
cemetery under the jurisdiction of the United States; and
    (5) The applicable further provisions of this section and Sec. Sec. 
3.1601 through 3.1610.


(Authority: 38 U.S.C. 2303(b))

    (g) Transportation expenses for burial in national cemetery. Where a 
veteran dies as the result of a service-connected disability, or at the 
time of death was in receipt of disability compensation (or but for the 
receipt of military retired pay or nonservice-connected disability 
pension would have been entitled to disability compensation at time of 
death), there is payable, in addition to the burial allowance (either 
the amount specified in 38 U.S.C. 2302 or the amount specified in 38 
U.S.C. 2307 if the cause of death was service connected), an additional 
amount for payment of the cost of transporting the body to the national 
cemetery for burial. This amount may not exceed the cost of transporting 
the body from the veteran's place of death to the national cemetery 
nearest the veteran's last place of residence in which burial space is 
available. The amounts payable under this paragraph are subject to the 
limitations set forth in Sec. Sec. 3.1604 and 3.1606.

    Cross References: Definitions; veterans See Sec. 3.1(d). 
Protection; burial allowance. See Sec. 3.954.

[26 FR 1620, Feb. 24, 1961, as amended at 44 FR 22721, Apr. 17, 1979; 47 
FR 11012, Mar. 15, 1982; 48 FR 41162, Sept. 14, 1983; 52 FR 34909, Sept. 
16, 1987; 56 FR 25045, June 3, 1991; 60 FR 18356, Apr. 11, 1995; 62 FR 
35423, July 1, 1997]



Sec. 3.1601  Claims and evidence.

    (a) Claims. Claims for reimbursement or direct payment of burial and 
funeral expenses under Sec. 3.1600(b) and plot or interment allowance 
under Sec. 3.1600(f) must be received by VA within 2 years

[[Page 356]]

after the permanent burial or cremation of the body. Where the burial 
allowance was not payable at the death of the veteran because of the 
nature of his (or her) discharge from service, but after his (or her) 
death the discharge has been corrected by competent authority so as to 
reflect a discharge under conditions other than dishonorable, claim may 
be filed within 2 years from date of correction of the discharge. This 
time limit does not apply to claims for service-connected burial 
allowance under Sec. 3.1600(a) or for the cost of transporting a 
veteran's body to the place of burial under Sec. 3.1600(c) or Sec. 
3.1600(g).


(Authority: 38 U.S.C. 904)

    (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 or an agency or political subdivision thereof, under 
Sec. 3.1604(d)) 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 
(a)(1)(iii) of this section for the burial allowance.
    (3) For the purposes of the plot and interment allowance plot or 
burial plot means the final disposal site of the remains, whether it is 
a grave, mausoleum vault, columbarium niche, or other similar place. 
Interment expenses are those costs associated with the final disposition 
of the remains and are not confined to the acts done within the burial 
grounds but may include the removal of bodies for burial or interment.
    (b) Supporting evidence. Evidence required to complete a claim for 
the burial allowance and the plot or interment allowance, when payable, 
(including a reopened claim filed within the 2-year period) must be 
submitted within 1 year from date of the Department of Veterans Affairs 
request for such evidence. In addition to the proper claim form the 
claimant (other than a Sec. 3.1604(d) claimant) is required to submit:
    (1) Statement of account. Preferably on funeral director's or 
cemetery owner's billhead showing name of the deceased veteran, the plot 
or interment costs, and the nature and cost of services rendered, and 
unpaid balance.
    (2) Receipted bills. Must show by whom payment was made and show 
receipt by a person acting for the funeral director or cemetery owner.

[[Page 357]]

    (3) Proof of death. In accordance with Sec. 3.211.
    (4) Waivers from all other distributees. Where expenses of a 
veteran's burial, funeral, plot, interment and transportation were paid 
from funds of the veteran's estate or some other deceased person's 
estate and the identity and right of all persons to share in that estate 
have been established, payment may be made to one heir upon 
unconditional written consent of all other heirs.
    (5) Entitlement under Sec. 3.1600(b)(3). In addition to the other 
evidentiary requirements of this subparagraph, there must be written 
certification over the signature of a responsible official of the State 
(or political subdivision of the State) where the body was held that--
    (i) There is no next of kin or other person claiming the body of the 
deceased veteran, and
    (ii) There are not available sufficient resources in the veteran's 
estate to cover burial and funeral expenses.

(Authority: 38 U.S.C. 2302(a))

[38 FR 30106, Nov. 1, 1973, as amended at 41 FR 38771, Sept. 13, 1976; 
44 FR 58710, Oct. 11, 1979; 48 FR 41162, Sept. 14, 1983; 52 FR 34909, 
Sept. 16, 1987; 55 FR 50323, Dec. 6, 1990]



Sec. 3.1602  Special conditions governing payments.

    (a) Two or more persons expended funds. If two or more persons have 
paid from their personal funds toward the burial, funeral, plot, 
interment and transportation expenses, the burial and plot or interment 
allowance will be divided among such persons in accordance with the 
proportionate share paid by each, unless waiver is executed in favor of 
one of such persons by the other person or persons involved. The person 
in whose favor payment is waived will not be allowed a sum greater than 
that which was paid by such person. (See Sec. 3.1601(a)(3).)
    (b) Person who performed services. A person who performed burial, 
funeral, and transportation services or furnished the burial plot will 
have priority over claims of persons whose personal funds were expended.
    (c) Partial payment. Where partial payment of the expenses of the 
burial, funeral and transportation of the body are made from funds of 
the veteran's estate and the balance from the personal funds of another 
person, the claim of the other person has priority.
    (d) Escheat. No payment of burial allowance or plot or interment 
allowance will be made where it would escheat.

[26 FR 1621, Feb. 24, 1961, as amended at 38 FR 30107, Nov. 1, 1973; 41 
FR 38771, Sept. 13, 1976]



Sec. 3.1603  Authority for burial of certain unclaimed bodies.

    If the body of a deceased veteran is unclaimed, there being no 
relatives or friends to claim the body, and there is burial allowance 
entitlement which is not based on Sec. 3.1600(b)(3), the amount 
provided for burial and plot or interment allowance will be available 
for the burial upon receipt of a claim accompanied by a statement 
showing what efforts were made to locate relatives or friends. The 
question of escheat of any part of such deceased veteran's estate is not 
a factor in such a claim. Burial allowance may be authorized for cost of 
disinterment and reburial of unclaimed remains originally accorded 
pauper burial but not for initial expenses of a burial in a potter's 
field. Burial in a prison cemetery is not considered a pauper burial.

[48 FR 41162, Sept. 14, 1983]



Sec. 3.1604  Payments from non-Department of Veterans Affairs sources.

    (a) Contributions or payments by public or private organizations. 
When contributions or payments on the burial expenses have been made by 
a state, any agency or political subdivision of the United States or of 
a State or the employer of the deceased veteran only the difference 
between the entire burial expenses and the amount paid thereon by any of 
these agencies or organizations, not to exceed the applicable statutory 
burial allowance, will be authorized. Contributions or payments by any 
other public or private organization such as a lodge, union, fraternal 
or beneficial organization, society, burial association or insurance 
company, will bar payment of the burial allowance if such allowance 
would revert to the funds of such organization or would

[[Page 358]]

discharge such organization's obligation without payment.


(Authority: 38 U.S.C. 2302; 2307)

    (1) A contract or policy which provides for payment at death of a 
specified amount to a designated beneficiary other than the person 
rendering burial and funeral services will not bar payment of the burial 
allowance to the beneficiary even though the organization issuing the 
contract or policy retains an option to make payment direct to the 
person rendering burial and funeral services.
    (2) The provisions of this paragraph do not apply to contributions 
or payments on the burial and funeral expenses which are made for 
humanitarian reasons if the organization making the contribution or 
payment is under no legal obligation to do so.
    (b) Payment by Federal agency. (1) Where a veteran dies while in 
employment covered by the United States Employees' Compensation Act, as 
amended, or other similar laws specifically providing for payment of the 
expenses of funeral, transportation, and interment out of Federal funds, 
burial allowance will not be authorized by the Department of Veterans 
Affairs.
    (2) A provision in any Federal law or regulation permitting the 
application of funds due or accrued to the credit of the deceased toward 
the expenses of funeral, transportation and interment (such as Social 
Security benefits), as distinguished from a provision specifically 
prescribing a definite allowance for such purpose, will not bar payment 
of the burial allowance. In such cases only the difference between the 
total burial expense and the amount paid thereon under such provision, 
not to exceed the amount specified in 38 U.S.C. 2302, will be 
authorized.


(Authority: 38 U.S.C. 2302(b))

    (3) Burial allowance is not payable for deaths in active service, or 
during the duty periods set forth in Sec. 3.6, or for other deaths 
where the cost of burial and transportation is paid by the service 
department.
    (c) Payment of plot or interment allowance by public or private 
organization except as provided for by Sec. 3.1604(d). Where any part of 
the plot or interment expenses has been paid or assumed by a state, any 
agency or political subdivision of a State, or the employer of the 
deceased veteran, only the difference between the total amount of such 
expenses and the amount paid or assumed by any of these agencies or 
organizations, not to exceed the statutory plot or interment allowance, 
will be authorized.


(Authority: 38 U.S.C. 2303(b))

    (d) Payment of the plot or interment allowance to a State or 
political subdivision thereof--(1) Conditions warranting payment. All of 
the following conditions must be met:
    (i) The plot or interment allowance is payable based on the service 
of the deceased veteran. See Sec. 3.1600.
    (ii) The deceased veteran is buried in a cemetery or a section 
thereof which is used solely for the interment of persons who are 
eligible for burial in a national cemetery or who, with respect to 
persons dying on or after November 1, 2000, were at the time of death 
members of a reserve component of the Armed Forces not otherwise 
eligible for such burial or were former members of such a reserve 
component not otherwise eligible for such burial who were discharged or 
released from service under conditions other than dishonorable.
    (iii) The cemetery or the section thereof where the veteran is 
buried is owned by the State, or an agency or political subdivision of 
the State claiming the plot or interment allowance.
    (iv) No charge is made by the State, or an agency or political 
subdivision of the State for the cost of the plot or interment.
    (v) The veteran was buried on or after October 1, 1978.
    (2) Claims. A claim for payment under this paragraph shall be 
executed by a State, or an agency or political subdivision of a state on 
a claim form prescribed by the Department of Veterans Affairs. Such 
claim must be received by the Department of Veterans Affairs within 2 
years after the permanent burial or cremation of the body. Where the 
burial allowance was not payable at the death of the veteran because of 
the nature of the veteran's discharge from

[[Page 359]]

service, but after the veteran's death the veteran's discharge was 
corrected by competent authority so as to reflect a discharge under 
conditions other than dishonorable, claim may be filed within 2 years 
from the date of correction of the discharge.
    (3) Amount of the allowance. A State or an agency or political 
subdivision of a state entitled to payment under this paragraph shall be 
paid the maximum statutory amount as a plot or interment allowance 
without regard to the acutal cost of the plot or interment.


(Authority: 38 U.S.C. 2303(b))

    (4) Priority of payment. A claim filed under this paragraph shall 
take precedence in payment of the plot or interment allowance over any 
claim filed for the plot or interment allowance under Sec. 
3.1601(a)(2).

(Authority: 38 U.S.C. 2303(b))

[26 FR 1621, Feb. 24, 1961, as amended at 29 FR 9537, July 14, 1964; 38 
FR 30107, Nov. 1, 1973; 44 FR 22722, Apr. 17, 1979; 44 FR 58710, Oct. 
11, 1979; 52 FR 34909, Sept. 16, 1987; 66 FR 48561, Sept. 21, 2001]



Sec. 3.1605  Death while traveling under prior authorization or while 
hospitalized by the Department of Veterans Affairs.

    An amount may be paid not to exceed the amount payable under Sec. 
3.1600 for the funeral, burial, plot, or interment expenses of a person 
who dies while in a hospital, domiciliary, or nursing home to which he 
or she was properly admitted under authority of the Department of 
Veterans Affairs. (See Sec. 3.1600(c)). In addition, the cost of 
transporting the body to the place of burial may be authorized. The 
amount payable under this section is subject to the limitations set 
forth in paragraph (b) of this section, and Sec. Sec. 3.1604 and 
3.1606.
    (a) Death enroute. When a veteran while traveling under proper prior 
authorization and at Department of Veterans Affairs expense to or from a 
specified place for the purpose of:
    (1) Examination; or
    (2) Treatment; or
    (3) Care

dies enroute, burial, funeral, plot, interment, and transportation 
expenses will be allowed as though death occurred while properly 
hospitalized by the Department of Veterans Affairs. Hospitalization in 
the Philippines under 38 U.S.C. 631, 632, and 633 does not meet the 
requirements of this section.
    (b) Transportation. Except for retired persons hospitalized under 
section 5 of Executive Order 10122 (15 FR 2173; 3 CFR 1950 Supp.) issued 
pursuant to Pub. L. 351, 81st Congress, and not as Department of 
Veterans Affairs beneficiaries, the cost of transportation of the body 
to the place of burial in addition to the burial and plot or interment 
allowance will be provided by the Department of Veterans Affairs where 
death occurs:
    (1) Within a State or the Canal Zone (38 U.S.C. 101 (20)) while the 
veteran is hospitalized by the Department of Veterans Affairs and the 
body is buried in a State or the Canal Zone; or
    (2) While hospitalized within but burial is to be outside of a State 
or the Canal Zone, except that cost of transportation of the body will 
be authorized only from place of death to port of embarkation, or to 
border limits of United States where burial is in Canada or Mexico.
    (c) Extended entitlement. Entitlement extends to the following 
persons who die while properly hospitalized by the Department of 
Veterans Affairs:
    (1) Discharged or rejected draftees; or
    (2) Members of the National Guard who reported to camp in answer to 
the President's call for World War I, World War II, or Korean service, 
but who when medically examined were not finally accepted for active 
military service; or
    (3) A veteran discharged under conditions other than dishonorable 
from a period of service other than a war period.
    (d) Persons properly hospitalized. A person properly hospitalized 
who dies:
    (1) While on authorized absence which has not exceeded 96 hours at 
time of death;
    (2) While in a status of unauthorized absence for a period not in 
excess of 24 hours; or
    (3) While absent from the hospital for a period totaling 24 hours of 
combined authorized and unauthorized absence (all other cases in which 
such absence

[[Page 360]]

arises at the expiration of an authorized absence are not included);

is considered as having died while hospitalized.
    (e) Persons not properly hospitalized. Where a deceased person was 
not properly hospitalized, benefits will not be authorized under this 
section.

[26 FR 1621, Feb. 24, 1961, as amended at 26 FR 7738, Aug. 18, 1961; 31 
FR 5757, Apr. 14, 1966; 32 FR 3743, Mar. 4, 1967; 36 FR 22144, Nov. 20, 
1971; 38 FR 30107, Nov. 1, 1973; 44 FR 22722, Apr. 17, 1979; 48 FR 
41162, Sept. 14, 1983]



Sec. 3.1606  Transportation items.

    The transportation costs of those persons who come within the 
provisions of Sec. Sec. 3.1600(g) and 3.1605 (a), (b), (c), and (d) may 
include the following:
    (a) Shipment by common carrier. (1) Charge for pickup of remains 
from place hospitalized or place of death but not to exceed the usual 
and customary charge made the general public for the same service.
    (2) Procuring permit for shipment.
    (3) Shipping case. When a box purchased for interment purposes is 
also used as the shipping case, the amount payable may not exceed the 
usual and customary charge for a shipping case. In any such instance any 
excess amount would be an acceptable item to be included in the burial 
allowance expenses.
    (4) Cost of sealing outside case (tin or galvanized iron), if a 
vault (steel or concrete) is used as a shipping case and also for 
burial, an allowance of $30 may be made thereon in lieu of a separate 
shipping case.
    (5) Cost of hearse to point where remains are to be placed on common 
carrier for shipment.
    (6) Cost of transportation by common carrier including amounts paid 
as Federal taxes.
    (7) Cost of one removal by hearse direct from common carrier plus 
one later removal by hearse to place of burial.
    (b) Transported by hearse. (1) Charge for pickup of remains from 
place hospitalized, or place of death and
    (2) Charge for one later removal by hearse to place of burial. These 
charges will not exceed those made the general public for the same 
services.
    (3) Payment of hearse charges for transporting the remains over long 
distances are limited to prevailing common carrier rates when common 
carrier service is available and can be easily and effectively utilized.

[26 FR 1622, Feb. 24, 1961, as amended at 36 FR 22144, Nov. 20, 1971; 38 
FR 27354, Oct. 3, 1973; 41 FR 55875, Dec. 23, 1976; 42 FR 26205, May 23, 
1977]



Sec. 3.1607  Cost of flags.

    No reimbursement will be authorized for the cost of a burial flag 
privately purchased by relatives, friends, or other parties but such 
cost may be included in a claim for the burial allowance.

[26 FR 1622, Feb. 24, 1961]



Sec. 3.1608  Nonallowable expenses.

    No reimbursement will be allowed for:
    (a) Accessory items. Such as items of food and drink.
    (b) Duplicate items. Any item or cost of any item or service, such 
as casket, clothing, etc., previously provided or paid for by any 
Federal agency (including the Department of Veterans Affairs).

[26 FR 1622, Feb. 24, 1961]



Sec. 3.1609  Forfeiture.

    (a) Forfeiture of benefits for fraud by a veteran during his 
lifetime will not preclude payment of burial and plot or interment 
allowance if otherwise in order. No benefits will be paid to a claimant 
who participated in the fraud which caused the forfeiture by the 
veteran.
    (b) Burial and plot or interment allowance is not payable based on a 
period of service commencing prior to the date of commission of the 
offense where either the veteran or claimant has forfeited the right to 
gratuitous benefits under Sec. 3.902 or Sec. 3.903 by reason of a 
treasonable act or subversive activities, unless the offense was 
pardoned by the President of the United States prior to the date of the 
veteran's death.

(Authority: 38 U.S.C. 5904(c)(2), 5905(a))

[[Page 361]]


    Cross Reference: Effect of forfeiture after veteran's death. See 
Sec. 3.904.

[38 FR 30107, Nov. 1, 1973, as amended at 41 FR 55875, Dec. 27, 1976]



Sec. 3.1610  Burial in national cemeteries; burial of unclaimed bodies.

    The statutory burial allowance and permissible transportation 
charges as provided in Sec. Sec. 3.1600 through 3.1611 are also payable 
under the following conditions:
    (a) Where burial of a deceased veteran is in a national cemetery, 
provided that burial in a national cemetery is desired by the person or 
persons entitled to the custody of the remains for interment and 
permission for burial has been received from the officers having 
jurisdiction over burials in national cemeteries; or
    (b) Where the body of a deceased veteran is unclaimed by relatives 
or friends (see Sec. 3.1603), the Director of the regional office in 
the area in which the veteran died will immediately complete 
arrangements for burial in a national cemetery or, at his or her option, 
in a cemetery or cemetery section meeting the requirements of Sec. 
3.1604(d)(1)(ii)-(iv), provided that the total amount payable for burial 
and transportation expenses (including the plot allowance, if 
entitlement is established) does not exceed the total amount payable had 
burial been in a national cemetery.

(Authority: 38 U.S.C. 1501(a))

[57 FR 29025, June 30, 1992; 57 FR 40944, Sept. 8, 1992]



Sec. 3.1611  Official Department of Veterans Affairs representation 
at funeral.

    When requested by the person entitled to the custody of the body of 
a deceased beneficiary of the Department of Veterans Affairs, official 
representation at the funeral will be granted provided an employee is 
available for the purpose and this representation will entail no expense 
to the Department of Veterans Affairs.

[26 FR 1622, Feb. 24, 1961]



Sec. 3.1612  Monetary allowance in lieu of a Government-furnished 
headstone or marker.

    (a) Purpose. This section provides for the payment of a monetary 
allowance in lieu of furnishing a headstone or marker at Government 
expense under the provisions of Sec. 1.631(a)(2) and (b) of this 
chapter to the person entitled to request such a headstone or marker.
    (b) Eligibility for the allowance. All of the following conditions 
shall be met:
    (1) The deceased veteran was eligible for burial in a National 
cemetery (See Sec. 1.620 (a), (b), (c) and (d) of this chapter); or 
died under circumstances precluding the recovery or identification of 
the veteran's remains or the veteran's remains were buried at sea.
    (2) The veteran was buried on or after October 18, 1978.
    (3) The headstone or marker was purchased to mark the otherwise 
unmarked grave of the deceased veteran or, if death occurred prior to 
December 18, 1989, the veteran's identifying information was added to an 
existing headstone or marker.


(Authority: 38 U.S.C. 2306(d))

    (4) The headstone or marker is for placement in a cemetery other 
than a National cemetery or the headstone or marker upon which the 
veteran's identifying information was added is situated in a cemetery 
other than a National cemetery.
    (c) Person entitled to request a Government-furnished headstone or 
marker. For purposes of this monetary allowance, the term ``person 
entitled to request a headstone or marker'' includes, but is not limited 
to, the person who purchased the headstone or marker (or if death 
occurred prior to December 18, 1989, the person who paid for adding the 
veteran's identifying information to an existing headstone or marker), 
or the executor, administrator or person representing the deceased's 
estate.


(Authority: 38 U.S.C. 2306(d))

    (d) Receipted bill. A receipted bill describing the headstone or 
marker (or the services rendered in adding the veteran's identifying 
information to an existing headstone or marker) date of purchase, 
purchase price, the amount

[[Page 362]]

of payment and the name of the person who made such payment, shall 
accompany a claim for this monetary allowance.
    (e) Payment and amount of the allowance. (1) The monetary allowance 
is payable as reimbursement to the person entitled to request a 
Government-furnished headstone or marker. If funds of the deceased's 
estate were used to purchase the headstone or marker or, if death 
occurred prior to December 18, 1989, to have the deceased's identifying 
information added to an existing headstone or marker, and no executor or 
administrator has been appointed, payment may be made to a person who 
will make a distribution of this monetary allowance to the person or 
persons entitled under the laws governing the distribution of intestate 
estates in the State of the decedent's personal domicile.


(Authority: 38 U.S.C. 2306(d))

    (2) The amount of the allowance payable is the lesser of the 
following:
    (i) Actual cost of acquiring a non-Government headstone or marker 
or, if death occurred prior to December 18, 1989, the actual cost of 
adding the veteran's identifying information to an existing headstone or 
marker; or


(Authority: 38 U.S.C. 2306(d))

    (ii) The average actual cost, as determined by VA, of headstones and 
markers furnished at Government expense for the fiscal year preceding 
the fiscal year in which the non-Government marker was purchased or the 
services for adding the veteran's identifying information on an existing 
headstone or marker were purchased.
    (3) The average actual cost of Government-furnished headstones and 
markers during any fiscal year is determined by dividing the sum of VA's 
costs during that fiscal year for procurement, transportation, Office of 
Memorial Programs and miscellaneous administration, inspection and 
support staff by the total number of headstones and markers procured by 
VA during that fiscal year and rounding to the nearest whole dollar 
amount. The resulting average actual cost is published at the end of 
each fiscal year in the ``Notices'' section of the Federal Register.


(Authority: 38 U.S.C. 2306(d))

    (4) The following applies to joint or multiple headstones or 
markers:
    (i) When a joint or multiple non-Government headstone or marker is 
purchased subsequent to the veteran's death, the amount set forth in 
paragraph (e)(2)(ii) of this section shall be available as reimbursement 
for the cost of the veteran's portion of the joint or multiple headstone 
or marker.
    (ii) When a joint or multiple non-Government headstone or marker is 
existent at the time of the veteran's death, the allowance payable as 
reimbursement under paragraph (e)(2) of this section shall be determined 
based on the cost of the services for adding the veteran's identifying 
information.
    (f) Payment of allowance prohibited. This monetary allowance shall 
not be paid when a Government headstone or marker has been requested or 
issued under the provisions of Sec. 1.631 (a)(2) and (b) of this 
chapter.
    (g) Claims. There is no time limit for filing claims for monetary 
allowance in lieu of a Government-furnished headstone or marker.


(Authority: 38 U.S.C. 2306(d))

    (h) The monetary allowance in lieu of a Government-furnished 
headstone or marker is not payable if death occurred on or after 
November 1, 1990.

(Authority: Pub. L. 101-508)

[44 FR 58711, Oct. 11, 1979, as amended at 47 FR 19131, May 4, 1982; 49 
FR 19653, May 9, 1984; 51 FR 17629, May 14, 1986; 52 FR 34910, Sept. 16, 
1987; 55 FR 50323, Dec. 6, 1990; 56 FR 25045, June 3, 1991; 56 FR 65851, 
Dec. 19, 1991; 61 FR 20727, May 8, 1996]

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.

[[Page 363]]

                                 General



Sec. 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)).



Sec. 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).

                                Revisions



Sec. 3.2600  Review of benefit claims decisions.

    (a) A claimant who has filed a timely Notice of Disagreement 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 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 Sec. 3.103(c).
    (d) The reviewer may grant a benefit sought in the claim 
notwithstanding Sec. 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 Sec. 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.

[[Page 364]]

    (g) This section applies to all claims in which a Notice of 
Disagreement is filed on or after June 1, 2001.

(Authority: 38 U.S.C. 5109A and 7105(d))

[66 FR 21874, May 2, 2001, as amended at 67 FR 46868, July 17, 2002]



PART 4_SCHEDULE FOR RATING DISABILITIES--Table of Contents




                   Subpart A_General Policy in Rating

Sec.
4.1 Essentials of evaluative rating.
4.2 Interpretation of examination reports.
4.3 Resolution of reasonable doubt.
4.6 Evaluation of evidence.
4.7 Higher of two evaluations.
4.9 Congenital or developmental defects.
4.10 Functional impairment.
4.13 Effect of change of diagnosis.
4.14 Avoidance of pyramiding.
4.15 Total disability ratings.
4.16 Total disability ratings for compensation based on unemployability 
          of the individual.
4.17 Total disability ratings for pension based on unemployability and 
          age of the individual.
4.17a Misconduct etiology.
4.18 Unemployability.
4.19 Age in service-connected claims.
4.20 Analogous ratings.
4.21 Application of rating schedule.
4.22 Rating of disabilities aggravated by active service.
4.23 Attitude of rating officers.
4.24 Correspondence.
4.25 Combined ratings table.
4.26 Bilateral factor.
4.27 Use of diagnostic code numbers.
4.28 Prestabilization rating from date of discharge from service.
4.29 Ratings for service-connected disabilities requiring hospital 
          treatment or observation.
4.30 Convalescent ratings.
4.31 Zero percent evaluations.

                      Subpart B_Disability Ratings

                       The Musculoskeletal System

4.40 Functional loss.
4.41 History of injury.
4.42 Complete medical examination of injury cases.
4.43 Osteomyelitis.
4.44 The bones.
4.45 The joints.
4.46 Accurate measurement.
4.47-4.54 [Reserved]
4.55 Principles of combined ratings for muscle injuries.
4.56 Evaluation of muscle disabilities.
4.57 Static foot deformities.
4.58 Arthritis due to strain.
4.59 Painful motion.
4.60 [Reserved]
4.61 Examination.
4.62 Circulatory disturbances.
4.63 Loss of use of hand or foot.
4.64 Loss of use of both buttocks.
4.65 [Reserved]
4.66 Sacroiliac joint.
4.67 Pelvic bones.
4.68 Amputation rule.
4.69 Dominant hand.
4.70 Inadequate examinations.
4.71 Measurement of ankylosis and joint motion.
4.71a Schedule of ratings--musculoskeletal system.
4.72 [Reserved]
4.73 Schedule of ratings--muscle injuries.

                       The Organs of Special Sense

4.75 Examination of visual acuity.
4.76 Examination of field vision.
4.76a Computation of average concentric contraction of visual fields.
4.77 Examination of muscle function.
4.78 Computing aggravation.
4.79 Loss of use of one eye, having only light perception.
4.80 Rating of one eye.
4.81-4.82 [Reserved]
4.83 Ratings at scheduled steps and distances.
4.83a Impairment of central visual acuity.
4.84 Differences between distant and near visual acuity.
4.84a Schedule of ratings--eye.

                      Impairment of Auditory Acuity

4.85 Evaluation of hearing impairment.
4.86 Exceptional patterns of hearing impairment.
4.87 Schedule of ratings--ear.
4.87a Schedule of ratings--other sense organs.

   Infectious Diseases, Immune Disorders and Nutritional Deficiencies

4.88 [Reserved]
4.88a Chronic fatigue syndrome.
4.88b Schedule of ratings--infectious diseases, immune disorders and 
          nutritional deficiencies.
4.88c Ratings for inactive nonpulmonary tuberculosis initially entitled 
          after August 19, 1968.
4.89 Ratings for inactive nonpulmonary tuberculosis in effect on August 
          19, 1968.

                         The Respiratory System

4.96 Special provisions regarding evaluation of respiratory conditions.
4.97 Schedule of ratings--respiratory system.

[[Page 365]]

                        The Cardiovascular System

4.100-4.103 [Reserved]
4.104 Schedule of ratings--cardiovascular system.

                          The Digestive System

4.110 Ulcers.
4.111 Postgastrectomy syndromes.
4.112 Weight loss.
4.113 Coexisting abdominal conditions.
4.114 Schedule of ratings--digestive system.

                        The Genitourinary System

4.115 Nephritis.
4.115a Ratings of the genitourinary system--dysfunctions.
4.115b Ratings of the genitourinary system--diagnoses.

          Gynecological Conditions and Disorders of the Breast

4.116 Schedule of ratings--gynecological conditions and disorders of the 
          breast.

                     The Hemic and Lymphatic Systems

4.117 Schedule of ratings--hemic and lymphatic systems.

                                The Skin

4.118 Schedule of ratings--skin.

                          The Endocrine System

4.119 Schedule of ratings--endocrine system.

            Neurological Conditions and Convulsive Disorders

4.120 Evaluations by comparison.
4.121 Identification of epilepsy.
4.122 Psychomotor epilepsy.
4.123 Neuritis, cranial or peripheral.
4.124 Neuralgia, cranial or peripheral.
4.124a Schedule of ratings--neurological conditions and convulsive 
          disorders.

                            Mental Disorders

4.125 Diagnosis of mental disorders.
4.126 Evaluation of disability from mental disorders.
4.127 Mental retardation and personality disorders.
4.128 Convalescence ratings following extended hospitalization.
4.129 Mental disorders due to traumatic stress.
4.130 Schedule of ratings--mental disorders.

                       Dental and Oral Conditions

4.149 [Reserved]
4.150 Schedule of ratings--dental and oral conditions.

Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946
Appendix B to Part 4--Numerical Index of Disabilities
Appendix C to Part 4--Alphabetical Index of Disabilities

    Authority: 38 U.S.C. 1155, unless otherwise noted.

    Source: 29 FR 6718, May 22, 1964, unless otherwise noted.



                   Subpart A_General Policy in Rating



Sec. 4.1  Essentials of evaluative rating.

    This rating schedule is primarily a guide in the evaluation of 
disability resulting from all types of diseases and injuries encountered 
as a result of or incident to military service. The percentage ratings 
represent as far as can practicably be determined the average impairment 
in earning capacity resulting from such diseases and injuries and their 
residual conditions in civil occupations. Generally, the degrees of 
disability specified are considered adequate to compensate for 
considerable loss of working time from exacerbations or illnesses 
proportionate to the severity of the several grades of disability. For 
the application of this schedule, accurate and fully descriptive medical 
examinations are required, with emphasis upon the limitation of activity 
imposed by the disabling condition. Over a period of many years, a 
veteran's disability claim may require reratings in accordance with 
changes in laws, medical knowledge and his or her physical or mental 
condition. It is thus essential, both in the examination and in the 
evaluation of disability, that each disability be viewed in relation to 
its history.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.2  Interpretation of examination reports.

    Different examiners, at different times, will not describe the same 
disability in the same language. Features of the disability which must 
have persisted unchanged may be overlooked or a change for the better or 
worse may not be accurately appreciated or described. It is the 
responsibility of the rating specialist to interpret reports of 
examination in the light of the whole

[[Page 366]]

recorded history, reconciling the various reports into a consistent 
picture so that the current rating may accurately reflect the elements 
of disability present. Each disability must be considered from the point 
of view of the veteran working or seeking work. If a diagnosis is not 
supported by the findings on the examination report or if the report 
does not contain sufficient detail, it is incumbent upon the rating 
board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.3  Resolution of 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 the degree of disability such doubt will be 
resolved in favor of the claimant. See Sec. 3.102 of this chapter.

[40 FR 42535, Sept. 15, 1975]



Sec. 4.6  Evaluation of evidence.

    The element of the weight to be accorded the character of the 
veteran's service is but one factor entering into the considerations of 
the rating boards in arriving at determinations of the evaluation of 
disability. Every element in any way affecting the probative value to be 
assigned to the evidence in each individual claim must be thoroughly and 
conscientiously studied by each member of the rating board in the light 
of the established policies of the Department of Veterans Affairs to the 
end that decisions will be equitable and just as contemplated by the 
requirements of the law.



Sec. 4.7  Higher of two evaluations.

    Where there is a question as to which of two evaluations shall be 
applied, the higher evaluation will be assigned if the disability 
picture more nearly approximates the criteria required for that rating. 
Otherwise, the lower rating will be assigned.



Sec. 4.9  Congenital or developmental defects.

    Mere congenital or developmental defects, absent, displaced or 
supernumerary parts, refractive error of the eye, personality disorder 
and mental deficiency are not diseases or injuries in the meaning of 
applicable legislation for disability compensation purposes.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.10  Functional impairment.

    The basis of disability evaluations is the ability of the body as a 
whole, or of the psyche, or of a system or organ of the body to function 
under the ordinary conditions of daily life including employment. 
Whether the upper or lower extremities, the back or abdominal wall, the 
eyes or ears, or the cardiovascular, digestive, or other system, or 
psyche are affected, evaluations are based upon lack of usefulness, of 
these parts or systems, especially in self-support. This imposes upon 
the medical examiner the responsibility of furnishing, in addition to 
the etiological, anatomical, pathological, laboratory and prognostic 
data required for ordinary medical classification, full description of 
the effects of disability upon the person's ordinary activity. In this 
connection, it will be remembered that a person may be too disabled to 
engage in employment although he or she is up and about and fairly 
comfortable at home or upon limited activity.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.13  Effect of change of diagnosis.

    The repercussion upon a current rating of service connection when 
change is made of a previously assigned diagnosis or etiology must be 
kept in mind. The aim should be the reconciliation and continuance of 
the diagnosis or etiology upon which service connection for the 
disability had been granted. The relevant principle enunciated in Sec. 
4.125, entitled ``Diagnosis of mental disorders,'' should have careful 
attention in this connection. When any change in evaluation is to be 
made, the rating agency should assure itself that there has been an 
actual change in the conditions, for better or worse, and not

[[Page 367]]

merely a difference in thoroughness of the examination or in use of 
descriptive terms. This will not, of course, preclude the correction of 
erroneous ratings, nor will it preclude assignment of a rating in 
conformity with Sec. 4.7.

[29 FR 6718, May 22, 1964, as amended at 61 FR 52700, Oct. 8, 1996]



Sec. 4.14  Avoidance of pyramiding.

    The evaluation of the same disability under various diagnoses is to 
be avoided. Disability from injuries to the muscles, nerves, and joints 
of an extremity may overlap to a great extent, so that special rules are 
included in the appropriate bodily system for their evaluation. Dyspnea, 
tachycardia, nervousness, fatigability, etc., may result from many 
causes; some may be service connected, others, not. Both the use of 
manifestations not resulting from service-connected disease or injury in 
establishing the service-connected evaluation, and the evaluation of the 
same manifestation under different diagnoses are to be avoided.



Sec. 4.15  Total disability ratings.

    The ability to overcome the handicap of disability varies widely 
among individuals. The rating, however, is based primarily upon the 
average impairment in earning capacity, that is, upon the economic or 
industrial handicap which must be overcome and not from individual 
success in overcoming it. However, full consideration must be given to 
unusual physical or mental effects in individual cases, to peculiar 
effects of occupational activities, to defects in physical or mental 
endowment preventing the usual amount of success in overcoming the 
handicap of disability and to the effect of combinations of disability. 
Total disability will be considered to exist when there is present any 
impairment of mind or body which is sufficient to render it impossible 
for the average person to follow a substantially gainful occupation; 
Provided, That permanent total disability shall be taken to exist when 
the impairment is reasonably certain to continue throughout the life of 
the disabled person. The following will be considered to be permanent 
total disability: the permanent loss of the use of both hands, or of 
both feet, or of one hand and one foot, or of the sight of both eyes, or 
becoming permanently helpless or permanently bedridden. Other total 
disability ratings are scheduled in the various bodily systems of this 
schedule.



Sec. 4.16  Total disability ratings for compensation based on 
unemployability of the individual.

    (a) Total disability ratings for compensation may be assigned, where 
the schedular rating is less than total, when the disabled person is, in 
the judgment of the rating agency, unable to secure or follow a 
substantially gainful occupation as a result of service-connected 
disabilities: Provided That, if there is only one such disability, this 
disability shall be ratable at 60 percent or more, and that, if there 
are two or more disabilities, there shall be at least one disability 
ratable at 40 percent or more, and sufficient additional disability to 
bring the combined rating to 70 percent or more. For the above purpose 
of one 60 percent disability, or one 40 percent disability in 
combination, the following will be considered as one disability: (1) 
Disabilities of one or both upper extremities, or of one or both lower 
extremities, including the bilateral factor, if applicable, (2) 
disabilities resulting from common etiology or a single accident, (3) 
disabilities affecting a single body system, e.g. orthopedic, digestive, 
respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple 
injuries incurred in action, or (5) multiple disabilities incurred as a 
prisoner of war. It is provided further that the existence or degree of 
nonservice-connected disabilities or previous unemployability status 
will be disregarded where the percentages referred to in this paragraph 
for the service-connected disability or disabilities are met and in the 
judgment of the rating agency such service-connected disabilities render 
the veteran unemployable. Marginal employment shall not be considered 
substantially gainful employment. For purposes of this section, marginal 
employment generally shall be deemed to exist when a veteran's earned 
annual income does not exceed the amount established by the U.S. 
Department of Commerce, Bureau of the

[[Page 368]]

Census, as the poverty threshold for one person. Marginal employment may 
also be held to exist, on a facts found basis (includes but is not 
limited to employment in a protected environment such as a family 
business or sheltered workshop), when earned annual income exceeds the 
poverty threshold. Consideration shall be given in all claims to the 
nature of the employment and the reason for termination.


(Authority: 38 U.S.C. 501)

    (b) It is the established policy of the Department of Veterans 
Affairs that all veterans who are unable to secure and follow a 
substantially gainful occupation by reason of service-connected 
disabilities shall be rated totally disabled. Therefore, rating boards 
should submit to the Director, Compensation and Pension Service, for 
extra-schedular consideration all cases of veterans who are unemployable 
by reason of service-connected disabilities, but who fail to meet the 
percentage standards set forth in paragraph (a) of this section. The 
rating board will include a full statement as to the veteran's service-
connected disabilities, employment history, educational and vocational 
attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 
55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 
8, 1996]



Sec. 4.17  Total disability ratings for pension based on unemployability 
and age of the individual.

    All veterans who are basically eligible and who are unable to secure 
and follow a substantially gainful occupation by reason of disabilities 
which are likely to be permanent shall be rated as permanently and 
totally disabled. For the purpose of pension, the permanence of the 
percentage requirements of Sec. 4.16 is a requisite. When the 
percentage requirements are met, and the disabilities involved are of a 
permanent nature, a rating of permanent and total disability will be 
assigned if the veteran is found to be unable to secure and follow 
substantially gainful employment by reason of such disability. Prior 
employment or unemployment status is immaterial if in the judgment of 
the rating board the veteran's disabilities render him or her 
unemployable. In making such determinations, the following guidelines 
will be used:
    (a) Marginal employment, for example, as a self-employed farmer or 
other person, while employed in his or her own business, or at odd jobs 
or while employed at less than half the usual remuneration will not be 
considered incompatible with a determination of unemployability, if the 
restriction, as to securing or retaining better employment, is due to 
disability.
    (b) Claims of all veterans who fail to meet the percentage standards 
but who meet the basic entitlement criteria and are unemployable, will 
be referred by the rating board to the Adjudication Officer under Sec. 
3.321(b)(2) of this chapter.

(Authority: 38 U.S.C. 1155; 38 U.S.C. 3102)

[43 FR 45348, Oct. 2, 1978, as amended at 56 FR 57985, Nov. 15, 1991]



Sec. 4.17a  Misconduct etiology.

    A permanent and total disability rating under the provisions of 
Sec. Sec. 4.15, 4.16 and 4.17 will not be precluded by reason of the 
coexistence of misconduct disability when:
    (a) A veteran, regardless of employment status, also has innocently 
acquired 100 percent disability, or
    (b) Where unemployable, the veteran has other disabilities 
innocently acquired which meet the percentage requirements of Sec. Sec. 
4.16 and 4.17 and would render, in the judgment of the rating agency, 
the average person unable to secure or follow a substantially gainful 
occupation.

[40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]



Sec. 4.18  Unemployability.

    A veteran may be considered as unemployable upon termination of 
employment which was provided on account of disability, or in which 
special consideration was given on account of the same, when it is 
satisfactorily shown that he or she is unable to secure further 
employment. With amputations, sequelae of fractures and other residuals 
of traumatism shown to be of

[[Page 369]]

static character, a showing of continuous unemployability from date of 
incurrence, or the date the condition reached the stabilized level, is a 
general requirement in order to establish the fact that present 
unemployability is the result of the disability. However, consideration 
is to be given to the circumstances of employment in individual claims, 
and, if the employment was only occasional, intermittent, tryout or 
unsuccessful, or eventually terminated on account of the disability, 
present unemployability may be attributed to the static disability. 
Where unemployability for pension previously has been established on the 
basis of combined service-connected and nonservice-connected 
disabilities and the service-connected disability or disabilities have 
increased in severity, Sec. 4.16 is for consideration.

[40 FR 42536, Sept. 15, 1975, as amended at 43 FR 45349, Oct. 2, 1978]



Sec. 4.19  Age in service-connected claims.

    Age may not be considered as a factor in evaluating service-
connected disability; and unemployability, in service-connected claims, 
associated with advancing age or intercurrent disability, may not be 
used as a basis for a total disability rating. Age, as such, is a factor 
only in evaluations of disability not resulting from service, i.e., for 
the purposes of pension.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978]



Sec. 4.20  Analogous ratings.

    When an unlisted condition is encountered it will be permissible to 
rate under a closely related disease or injury in which not only the 
functions affected, but the anatomical localization and symptomatology 
are closely analogous. Conjectural analogies will be avoided, as will 
the use of analogous ratings for conditions of doubtful diagnosis, or 
for those not fully supported by clinical and laboratory findings. Nor 
will ratings assigned to organic diseases and injuries be assigned by 
analogy to conditions of functional origin.



Sec. 4.21  Application of rating schedule.

    In view of the number of atypical instances it is not expected, 
especially with the more fully described grades of disabilities, that 
all cases will show all the findings specified. Findings sufficiently 
characteristic to identify the disease and the disability therefrom, and 
above all, coordination of rating with impairment of function will, 
however, be expected in all instances.

[41 FR 11293, Mar. 18, 1976]



Sec. 4.22  Rating of disabilities aggravated by active service.

    In cases involving aggravation by active service, the rating will 
reflect only the degree of disability over and above the degree existing 
at the time of entrance into the active service, whether the particular 
condition was noted at the time of entrance into the active service, or 
it is determined upon the evidence of record to have existed at that 
time. It is necessary therefore, in all cases of this character to 
deduct from the present degree of disability the degree, if 
ascertainable, of the disability existing at the time of entrance into 
active service, in terms of the rating schedule, except that if the 
disability is total (100 percent) no deduction will be made. The 
resulting difference will be recorded on the rating sheet. If the degree 
of disability at the time of entrance into the service is not 
ascertainable in terms of the schedule, no deduction will be made.



Sec. 4.23  Attitude of rating officers.

    It is to be remembered that the majority of applicants are disabled 
persons who are seeking benefits of law to which they believe themselves 
entitled. In the exercise of his or her functions, rating officers must 
not allow their personal feelings to intrude; an antagonistic, critical, 
or even abusive attitude on the part of a claimant should not in any 
instance influence the officers in the handling of the case. Fairness 
and courtesy must at all times be shown to applicants by all employees 
whose duties bring them in contact, directly or indirectly, with the 
Department's claimants.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.24  Correspondence.

    All correspondence relative to the interpretation of the schedule 
for rating

[[Page 370]]

disabilities, requests for advisory opinions, questions regarding lack 
of clarity or application to individual cases involving unusual 
difficulties, will be addressed to the Director, Compensation and 
Pension Service. A clear statement will be made of the point or points 
upon which information is desired, and the complete case file will be 
simultaneously forwarded to Central Office. Rating agencies will assure 
themselves that the recent report of physical examination presents an 
adequate picture of the claimant's condition. Claims in regard to which 
the schedule evaluations are considered inadequate or excessive, and 
errors in the schedule will be similarly brought to attention.

[41 FR 11292, Mar. 18, 1976]



Sec. 4.25  Combined ratings table.

    Table I, Combined Ratings Table, results from the consideration of 
the efficiency of the individual as affected first by the most disabling 
condition, then by the less disabling condition, then by other less 
disabling conditions, if any, in the order of severity. Thus, a person 
having a 60 percent disability is considered 40 percent efficient. 
Proceeding from this 40 percent efficiency, the effect of a further 30 
percent disability is to leave only 70 percent of the efficiency 
remaining after consideration of the first disability, or 28 percent 
efficiency altogether. The individual is thus 72 percent disabled, as 
shown in table I opposite 60 percent and under 30 percent.
    (a) To use table I, the disabilities will first be arranged in the 
exact order of their severity, beginning with the greatest disability 
and then combined with use of table I as hereinafter indicated. For 
example, if there are two disabilities, the degree of one disability 
will be read in the left column and the degree of the other in the top 
row, whichever is appropriate. The figures appearing in the space where 
the column and row intersect will represent the combined value of the 
two. This combined value will then be converted to the nearest number 
divisible by 10, and combined values ending in 5 will be adjusted 
upward. Thus, with a 50 percent disability and a 30 percent disability, 
the combined value will be found to be 65 percent, but the 65 percent 
must be converted to 70 percent to represent the final degree of 
disability. Similarly, with a disability of 40 percent, and another 
disability of 20 percent, the combined value is found to be 52 percent, 
but the 52 percent must be converted to the nearest degree divisible by 
10, which is 50 percent. If there are more than two disabilities, the 
disabilities will also be arranged in the exact order of their severity 
and the combined value for the first two will be found as previously 
described for two disabilities. The combined value, exactly as found in 
table I, will be combined with the degree of the third disability (in 
order of severity). The combined value for the three disabilities will 
be found in the space where the column and row intersect, and if there 
are only three disabilities will be converted to the nearest degree 
divisible by 10, adjusting final 5's upward. Thus, if there are three 
disabilities ratable at 60 percent, 40 percent, and 20 percent, 
respectively, the combined value for the first two will be found 
opposite 60 and under 40 and is 76 percent. This 76 will be combined 
with 20 and the combined value for the three is 81 percent. This 
combined value will be converted to the nearest degree divisible by 10 
which is 80 percent. The same procedure will be employed when there are 
four or more disabilities. (See table I).
    (b) Except as otherwise provided in this schedule, the disabilities 
arising from a single disease entity, e.g., arthritis, multiple 
sclerosis, cerebrovascular accident, etc., are to be rated separately as 
are all other disabiling conditions, if any. All disabilities are then 
to be combined as described in paragraph (a) of this section. The 
conversion to the nearest degree divisible by 10 will be done only once 
per rating decision, will follow the combining of all disabilities, and 
will be the last procedure in determining the combined degree of 
disability.

[[Page 371]]



                                         Table I--Combined Ratings Table
                                           [10 combined with 10 is 19]
----------------------------------------------------------------------------------------------------------------
                                            10      20      30      40      50      60      70      80      90
----------------------------------------------------------------------------------------------------------------
19......................................      27      35      43      51      60      68      76      84      92
20......................................      28      36      44      52      60      68      76      84      92
21......................................      29      37      45      53      61      68      76      84      92
22......................................      30      38      45      53      61      69      77      84      92
23......................................      31      38      46      54      62      69      77      85      92
24......................................      32      39      47      54      62      70      77      85      92
25......................................      33      40      48      55      63      70      78      85      93
26......................................      33      41      48      56      63      70      78      85      93
27......................................      34      42      49      56      64      71      78      85      93
28......................................      35      42      50      57      64      71      78      86      93
29......................................      36      43      50      57      65      72      79      86      93
30......................................      37      44      51      58      65      72      79      86      93
31......................................      38      45      52      59      66      72      79      86      93
32......................................      39      46      52      59      66      73      80      86      93
33......................................      40      46      53      60      67      73      80      87      93
34......................................      41      47      54      60      67      74      80      87      93
35......................................      42      48      55      61      68      74      81      87      94
36......................................      42      49      55      62      68      74      81      87      94
37......................................      43      50      56      62      69      75      81      87      94
38......................................      44      50      57      63      69      75      81      88      94
39......................................      45      51      57      63      70      76      82      88      94
40......................................      46      52      58      64      70      76      82      88      94
41......................................      47      53      59      65      71      76      82      88      94
42......................................      48      54      59      65      71      77      83      88      94
43......................................      49      54      60      66      72      77      83      89      94
44......................................      50      55      61      66      72      78      83      89      94
45......................................      51      56      62      67      73      78      84      89      95
46......................................      51      57      62      68      73      78      84      89      95
47......................................      52      58      63      68      74      79      84      89      95
48......................................      53      58      64      69      74      79      84      90      95
49......................................      54      59      64      69      75      80      85      90      95
50......................................      55      60      65      70      75      80      85      90      95
51......................................      56      61      66      71      76      80      85      90      95
52......................................      57      62      66      71      76      81      86      90      95
53......................................      58      62      67      72      77      81      86      91      95
54......................................      59      63      68      72      77      82      86      91      95
55......................................      60      64      69      73      78      82      87      91      96
56......................................      60      65      69      74      78      82      87      91      96
57......................................      61      66      70      74      79      83      87      91      96
58......................................      62      66      71      75      79      83      87      92      96
59......................................      63      67      71      75      80      84      88      92      96
60......................................      64      68      72      76      80      84      88      92      96
61......................................      65      69      73      77      81      84      88      92      96
62......................................      66      70      73      77      81      85      89      92      96
63......................................      67      70      74      78      82      85      89      93      96
64......................................      68      71      75      78      82      86      89      93      96
65......................................      69      72      76      79      83      86      90      93      97
66......................................      69      73      76      80      83      86      90      93      97
67......................................      70      74      77      80      84      87      90      93      97
68......................................      71      74      78      81      84      87      90      94      97
69......................................      72      75      78      81      85      88      91      94      97
70......................................      73      76      79      82      85      88      91      94      97
71......................................      74      77      80      83      86      88      91      94      97
72......................................      75      78      80      83      86      89      92      94      97
73......................................      76      78      81      84      87      89      92      95      97
74......................................      77      79      82      84      87      90      92      95      97
75......................................      78      80      83      85      88      90      93      95      98
76......................................      78      81      83      86      88      90      93      95      98
77......................................      79      82      84      86      89      91      93      95      98
78......................................      80      82      85      87      89      91      93      96      98
79......................................      81      83      85      87      90      92      94      96      98
80......................................      82      84      86      88      90      92      94      96      98
81......................................      83      85      87      89      91      92      94      96      98
82......................................      84      86      87      89      91      93      95      96      98
83......................................      85      86      88      90      92      93      95      97      98
84......................................      86      87      89      90      92      94      95      97      98
85......................................      87      88      90      91      93      94      96      97      99
86......................................      87      89      90      92      93      94      96      97      99
87......................................      88      90      91      92      94      95      96      97      99
88......................................      89      90      92      93      94      95      96      98      99
89......................................      90      91      92      93      95      96      87      38      99

[[Page 372]]

 
90......................................      91      92      93      94      95      96      97      98      99
91......................................      92      93      94      95      96      96      97      98      99
92......................................      93      94      94      95      96      97      98      98      99
93......................................      94      94      95      96      97      97      98      99      99
94......................................      95      95      96      96      97      98      98      99      99
----------------------------------------------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[41 FR 11293, Mar. 18, 1976, as amended at 54 FR 27161, June 28, 1989; 
54 FR 36029, Aug. 31, 1989]



Sec. 4.26  Bilateral factor.

    When a partial disability results from disease or injury of both 
arms, or of both legs, or of paired skeletal muscles, the ratings for 
the disabilities of the right and left sides will be combined as usual, 
and 10 percent of this value will be added (i.e., not combined) before 
proceeding with further combinations, or converting to degree of 
disability. The bilateral factor will be applied to such bilateral 
disabilities before other combinations are carried out and the rating 
for such disabilities including the bilateral factor in this section 
will be treated as 1 disability for the purpose of arranging in order of 
severity and for all further combinations. For example, with 
disabilities evaluated at 60 percent, 20 percent, 10 percent and 10 
percent (the two 10's representing bilateral disabilities), the order of 
severity would be 60, 21 and 20. The 60 and 21 combine to 68 percent and 
the 68 and 20 to 74 percent, converted to 70 percent as the final degree 
of disability.
    (a) The use of the terms ``arms'' and ``legs'' is not intended to 
distinguish between the arm, forearm and hand, or the thigh, leg, and 
foot, but relates to the upper extremities and lower extremities as a 
whole. Thus with a compensable disability of the right thigh, for 
example, amputation, and one of the left foot, for example, pes planus, 
the bilateral factor applies, and similarly whenever there are 
compensable disabilities affecting use of paired extremities regardless 
of location or specified type of impairment.
    (b) The correct procedure when applying the bilateral factor to 
disabilities affecting both upper extremities and both lower extremities 
is to combine the ratings of the disabilities affecting the 4 
extremities in the order of their individual severity and apply the 
bilateral factor by adding, not combining, 10 percent of the combined 
value thus attained.
    (c) The bilateral factor is not applicable unless there is partial 
disability of compensable degree in each of 2 paired extremities, or 
paired skeletal muscles.



Sec. 4.27  Use of diagnostic code numbers.

    The diagnostic code numbers appearing opposite the listed ratable 
disabilities are arbitrary numbers for the purpose of showing the basis 
of the evaluation assigned and for statistical analysis in the 
Department of Veterans Affairs, and as will be observed, extend from 
5000 to a possible 9999. Great care will be exercised in the selection 
of the applicable code number and in its citation on the rating sheet. 
No other numbers than these listed or hereafter furnished are to be 
employed for rating purposes, with an exception as described in this 
section, as to unlisted conditions. When an unlisted disease, injury, or 
residual condition is encountered, requiring rating by analogy, the 
diagnostic code number will be ``built-up'' as follows: The first 2 
digits will be selected from that part of the schedule most closely 
identifying the part, or system, of the body involved; the last 2 digits 
will be ``99'' for all unlisted conditions. This procedure will 
facilitate a close check of new and unlisted conditions, rated by 
analogy. In the selection of code numbers, injuries will generally be 
represented by the number assigned to the residual condition on the 
basis of which the rating is determined. With diseases, preference is to 
be given

[[Page 373]]

to the number assigned to the disease itself; if the rating is 
determined on the basis of residual conditions, the number appropriate 
to the residual condition will be added, preceded by a hyphen. Thus, 
rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine 
should be coded ``5002-5289.'' In this way, the exact source of each 
rating can be easily identified. In the citation of disabilities on 
rating sheets, the diagnostic terminology will be that of the medical 
examiner, with no attempt to translate the terms into schedule 
nomenclature. Residuals of diseases or therapeutic procedures will not 
be cited without reference to the basic disease.

[41 FR 11293, Mar. 18, 1976]



Sec. 4.28  Prestabilization rating from date of discharge from service.

    The following ratings may be assigned, in lieu of ratings prescribed 
elsewhere, under the conditions stated for disability from any disease 
or injury. The prestabilization rating is not to be assigned in any case 
in which a total rating is immediately assignable under the regular 
provisions of the schedule or on the basis of individual 
unemployability. The prestabilization 50-percent rating is not to be 
used in any case in which a rating of 50 percent or more is immediately 
assignable under the regular provisions.

------------------------------------------------------------------------
                                                                Rating
------------------------------------------------------------------------
Unstabilized condition with severe disability--
  Substantially gainful employment is not feasible or                100
   advisable................................................
Unhealed or incompletely healed wounds or injuries--
  Material impairment of employability likely...............          50
------------------------------------------------------------------------


    Note (1): Department of Veterans Affairs examination is not required 
prior to assignment of prestabilization ratings; however, the fact that 
examination was accomplished will not preclude assignment of these 
benefits. Prestabilization ratings are for assignment in the immediate 
postdischarge period. They will continue for a 12-month period following 
discharge from service. However, prestabilization ratings may be changed 
to a regular schedular total rating or one authorizing a greater benefit 
at any time. In each prestabilization rating an examination will be 
requested to be accomplished not earlier than 6 months nor more than 12 
months following discharge. In those prestabilization ratings in which 
following examination reduction in evaluation is found to be warranted, 
the higher evaluation will be continued to the end of the 12th month 
following discharge or to the end of the period provided under Sec. 
3.105(e) of this chapter, whichever is later. Special monthly 
compensation should be assigned concurrently in these cases whenever 
records are adequate to establish entitlement.
    Note (2): Diagnosis of disease, injury, or residuals will be cited, 
with diagnostic code number assigned from this rating schedule for 
conditions listed therein.

[35 FR 11906, July 24, 1970]



Sec. 4.29  Ratings for service-connected disabilities requiring 
hospital treatment or observation.

    A total disability rating (100 percent) will be assigned without 
regard to other provisions of the rating schedule when it is established 
that a service-connected disability has required hospital treatment in a 
Department of Veterans Affairs or an approved hospital for a period in 
excess of 21 days or hospital observation at Department of Veterans 
Affairs expense for a service-connected disability for a period in 
excess of 21 days.
    (a) Subject to the provisions of paragraphs (d), (e), and (f) of 
this section this increased rating will be effective the first day of 
continuous hospitalization and will be terminated effective the last day 
of the month of hospital discharge (regular discharge or release to non-
bed care) or effective the last day of the month of termination of 
treatment or observation for the service-connected disability. A 
temporary release which is approved by an attending Department of 
Veterans Affairs physician as part of the treatment plan will not be 
considered an absence.
    (1) An authorized absence in excess of 4 days which begins during 
the first 21 days of hospitalization will be regarded as the equivalent 
of hospital discharge effective the first day of such authorized 
absence. An authorized absence of 4 days or less which results in a 
total of more than 8 days of authorized absence during the first 21 days 
of hospitalization will be regarded as the equivalent of hospital 
discharge effective the ninth day of authorized absence.
    (2) Following a period of hospitalization in excess of 21 days, an 
authorized absence in excess of 14 days or a third

[[Page 374]]

consecutive authorized absence of 14 days will be regarded as the 
equivalent of hospital discharge and will interrupt hospitalization 
effective on the last day of the month in which either the authorized 
absence in excess of 14 days or the third 14 day period begins, except 
where there is a finding that convalescence is required as provided by 
paragraph (e) or (f) of this section. The termination of these total 
ratings will not be subject to Sec. 3.105(e) of this chapter.
    (b) Notwithstanding that hospital admission was for disability not 
connected with service, if during such hospitalization, hospital 
treatment for a service-connected disability is instituted and continued 
for a period in excess of 21 days, the increase to a total rating will 
be granted from the first day of such treatment. If service connection 
for the disability under treatment is granted after hospital admission, 
the rating will be from the first day of hospitalization if otherwise in 
order.
    (c) The assignment of a total disability rating on the basis of 
hospital treatment or observation will not preclude the assignment of a 
total disability rating otherwise in order under other provisions of the 
rating schedule, and consideration will be given to the propriety of 
such a rating in all instances and to the propriety of its continuance 
after discharge. Particular attention, with a view to proper rating 
under the rating schedule, is to be given to the claims of veterans 
discharged from hospital, regardless of length of hospitalization, with 
indications on the final summary of expected confinement to bed or 
house, or to inability to work with requirement of frequent care of 
physician or nurse at home.
    (d) On these total ratings Department of Veterans Affairs 
regulations governing effective dates for increased benefits will 
control.
    (e) The total hospital rating if convalescence is required may be 
continued for periods of 1, 2, or 3 months in addition to the period 
provided in paragraph (a) of this section.
    (f) Extension of periods of 1, 2 or 3 months beyond the initial 3 
months may be made upon approval of the Adjudication Officer.
    (g) Meritorious claims of veterans who are discharged from the 
hospital with less than the required number of days but need post-
hospital care and a prolonged period of convalescence will be referred 
to the Director, Compensation and Pension Service, under Sec. 
3.321(b)(1) of this chapter.

[29 FR 6718, May 22, 1964, as amended at 41 FR 11294, Mar. 18, 1976; 41 
FR 34256, Aug. 13, 1976; 54 FR 4281, Jan. 30, 1989; 54 FR 34981, Aug. 
23, 1989]



Sec. 4.30  Convalescent ratings.

    A total disability rating (100 percent) will be assigned without 
regard to other provisions of the rating schedule when it is established 
by report at hospital discharge (regular discharge or release to non-bed 
care) or outpatient release that entitlement is warranted under 
paragraph (a) (1), (2) or (3) of this section effective the date of 
hospital admission or outpatient treatment and continuing for a period 
of 1, 2, or 3 months from the first day of the month following such 
hospital discharge or outpatient release. The termination of these total 
ratings will not be subject to Sec. 3.105(e) of this chapter. Such 
total rating will be followed by appropriate schedular evaluations. When 
the evidence is inadequate to assign a schedular evaluation, a physical 
examination will be scheduled and considered prior to the termination of 
a total rating under this section.
    (a) Total ratings will be assigned under this section if treatment 
of a service-connected disability resulted in:
    (1) Surgery necessitating at least one month of convalescence 
(Effective as to outpatient surgery March 1, 1989.)
    (2) Surgery with severe postoperative residuals such as incompletely 
healed surgical wounds, stumps of recent amputations, therapeutic 
immobilization of one major joint or more, application of a body cast, 
or the necessity for house confinement, or the necessity for continued 
use of a wheelchair or crutches (regular weight-bearing prohibited). 
(Effective as to outpatient surgery March 1, 1989.)
    (3) Immobilization by cast, without surgery, of one major joint or 
more.

[[Page 375]]

(Effective as to outpatient treatment March 10, 1976.)

A reduction in the total rating will not be subject to Sec. 3.105(e) of 
this chapter. The total rating will be followed by an open rating 
reflecting the appropriate schedular evaluation; where the evidence is 
inadequate to assign the schedular evaluation, a physcial examination 
will be scheduled prior to the end of the total rating period.
    (b) A total rating under this section will require full 
justification on the rating sheet and may be extended as follows:
    (1) Extensions of 1, 2 or 3 months beyond the initial 3 months may 
be made under paragraph (a) (1), (2) or (3) of this section.
    (2) Extensions of 1 or more months up to 6 months beyond the initial 
6 months period may be made under paragraph (a) (2) or (3) of this 
section upon approval of the Adjudication Officer.

[41 FR 34256, Aug. 13, 1976, as amended at 54 FR 4281, Jan. 30, 1989]



Sec. 4.31  Zero percent evaluations.

    In every instance where the schedule does not provide a zero percent 
evaluation for a diagnostic code, a zero percent evaluation shall be 
assigned when the requirements for a compensable evaluation are not met.

[58 FR 52018, Oct. 6, 1993]



                      Subpart B_Disability Ratings

                       The Musculoskeletal System



Sec. 4.40  Functional loss.

    Disability of the musculoskeletal system is primarily the inability, 
due to damage or infection in parts of the system, to perform the normal 
working movements of the body with normal excursion, strength, speed, 
coordination and endurance. It is essential that the examination on 
which ratings are based adequately portray the anatomical damage, and 
the functional loss, with respect to all these elements. The functional 
loss may be due to absence of part, or all, of the necessary bones, 
joints and muscles, or associated structures, or to deformity, 
adhesions, defective innervation, or other pathology, or it may be due 
to pain, supported by adequate pathology and evidenced by the visible 
behavior of the claimant undertaking the motion. Weakness is as 
important as limitation of motion, and a part which becomes painful on 
use must be regarded as seriously disabled. A little used part of the 
musculoskeletal system may be expected to show evidence of disuse, 
either through atrophy, the condition of the skin, absence of normal 
callosity or the like.



Sec. 4.41  History of injury.

    In considering the residuals of injury, it is essential to trace the 
medical-industrial history of the disabled person from the original 
injury, considering the nature of the injury and the attendant 
circumstances, and the requirements for, and the effect of, treatment 
over past periods, and the course of the recovery to date. The duration 
of the initial, and any subsequent, period of total incapacity, 
especially periods reflecting delayed union, inflammation, swelling, 
drainage, or operative intervention, should be given close attention. 
This consideration, or the absence of clear cut evidence of injury, may 
result in classifying the disability as not of traumatic origin, either 
reflecting congenital or developmental etiology, or the effects of 
healed disease.



Sec. 4.42  Complete medical examination of injury cases.

    The importance of complete medical examination of injury cases at 
the time of first medical examination by the Department of Veterans 
Affairs cannot be overemphasized. When possible, this should include 
complete neurological and psychiatric examination, and other special 
examinations indicated by the physical condition, in addition to the 
required general and orthopedic or surgical examinations. When complete 
examinations are not conducted covering all systems of the body affected 
by disease or injury, it is impossible to visualize the nature and 
extent of the service connected disability. Incomplete examination is a 
common cause of incorrect diagnosis, especially in the neurological and 
psychiatric fields, and frequently leaves the Department of

[[Page 376]]

Veterans Affairs in doubt as to the presence or absence of disabling 
conditions at the time of the examination.



Sec. 4.43  Osteomyelitis.

    Chronic, or recurring, suppurative osteomyelitis, once clinically 
identified, including chronic inflammation of bone marrow, cortex, or 
periosteum, should be considered as a continuously disabling process, 
whether or not an actively discharging sinus or other obvious evidence 
of infection is manifest from time to time, and unless the focus is 
entirely removed by amputation will entitle to a permanent rating to be 
combined with other ratings for residual conditions, however, not 
exceeding amputation ratings at the site of election.



Sec. 4.44  The bones.

    The osseous abnormalities incident to trauma or disease, such as 
malunion with deformity throwing abnormal stress upon, and causing 
malalignment of joint surfaces, should be depicted from study and 
observation of all available data, beginning with inception of injury or 
disease, its nature, degree of prostration, treatment and duration of 
convalescence, and progress of recovery with development of permanent 
residuals. With shortening of a long bone, some degree of angulation is 
to be expected; the extent and direction should be brought out by X-ray 
and observation. The direction of angulation and extent of deformity 
should be carefully related to strain on the neighboring joints, 
especially those connected with weight-bearing.



Sec. 4.45  The joints.

    As regards the joints the factors of disability reside in reductions 
of their normal excursion of movements in different planes. Inquiry will 
be directed to these considerations:
    (a) Less movement than normal (due to ankylosis, limitation or 
blocking, adhesions, tendon-tie-up, contracted scars, etc.).
    (b) More movement than normal (from flail joint, resections, 
nonunion of fracture, relaxation of ligaments, etc.).
    (c) Weakened movement (due to muscle injury, disease or injury of 
peripheral nerves, divided or lengthened tendons, etc.).
    (d) Excess fatigability.
    (e) Incoordination, impaired ability to execute skilled movements 
smoothly.
    (f) Pain on movement, swelling, deformity or atrophy of disuse. 
Instability of station, disturbance of locomotion, interference with 
sitting, standing and weight-bearing are related considerations. For the 
purpose of rating disability from arthritis, the shoulder, elbow, wrist, 
hip, knee, and ankle are considered major joints; multiple involvements 
of the interphalangeal, metacarpal and carpal joints of the upper 
extremities, the interphalangeal, metatarsal and tarsal joints of the 
lower extremities, the cervical vertebrae, the dorsal vertebrae, and the 
lumbar vertebrae, are considered groups of minor joints, ratable on a 
parity with major joints. The lumbosacral articulation and both 
sacroiliac joints are considered to be a group of minor joints, ratable 
on disturbance of lumbar spine functions.



Sec. 4.46  Accurate measurement.

    Accurate measurement of the length of stumps, excursion of joints, 
dimensions and location of scars with respect to landmarks, should be 
insisted on. The use of a goniometer in the measurement of limitation of 
motion is indispensable in examinations conducted within the Department 
of Veterans Affairs. Muscle atrophy must also be accurately measured and 
reported.

[41 FR 11294, Mar. 18, 1976]



Sec. Sec. 4.47-4.54  [Reserved]



Sec. 4.55  Principles of combined ratings for muscle injuries.

    (a) A muscle injury rating will not be combined with a peripheral 
nerve paralysis rating of the same body part, unless the injuries affect 
entirely different functions.
    (b) For rating purposes, the skeletal muscles of the body are 
divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups 
for the shoulder girdle and arm (diagnostic codes 5301 through 5306); 3 
muscle groups for the forearm and hand (diagnostic codes 5307 through 
5309); 3 muscle groups for the

[[Page 377]]

foot and leg (diagnostic codes 5310 through 5312); 6 muscle groups for 
the pelvic girdle and thigh (diagnostic codes 5313 through 5318); and 5 
muscle groups for the torso and neck (diagnostic codes 5319 through 
5323).
    (c) There will be no rating assigned for muscle groups which act 
upon an ankylosed joint, with the following exceptions:
    (1) In the case of an ankylosed knee, if muscle group XIII is 
disabled, it will be rated, but at the next lower level than that which 
would otherwise be assigned.
    (2) In the case of an ankylosed shoulder, if muscle groups I and II 
are severely disabled, the evaluation of the shoulder joint under 
diagnostic code 5200 will be elevated to the level for unfavorable 
ankylosis, if not already assigned, but the muscle groups themselves 
will not be rated.
    (d) The combined evaluation of muscle groups acting upon a single 
unankylosed joint must be lower than the evaluation for unfavorable 
ankylosis of that joint, except in the case of muscle groups I and II 
acting upon the shoulder.
    (e) For compensable muscle group injuries which are in the same 
anatomical region but do not act on the same joint, the evaluation for 
the most severely injured muscle group will be increased by one level 
and used as the combined evaluation for the affected muscle groups.
    (f) For muscle group injuries in different anatomical regions which 
do not act upon ankylosed joints, each muscle group injury shall be 
separately rated and the ratings combined under the provisions of Sec. 
4.25.

(Authority: 38 U.S.C. 1155)

[62 FR 30237, June 3, 1997]



Sec. 4.56  Evaluation of muscle disabilities.

    (a) An open comminuted fracture with muscle or tendon damage will be 
rated as a severe injury of the muscle group involved unless, for 
locations such as in the wrist or over the tibia, evidence establishes 
that the muscle damage is minimal.
    (b) A through-and-through injury with muscle damage shall be 
evaluated as no less than a moderate injury for each group of muscles 
damaged.
    (c) For VA rating purposes, the cardinal signs and symptoms of 
muscle disability are loss of power, weakness, lowered threshold of 
fatigue, fatigue-pain, impairment of coordination and uncertainty of 
movement.
    (d) Under diagnostic codes 5301 through 5323, disabilities resulting 
from muscle injuries shall be classified as slight, moderate, moderately 
severe or severe as follows:
    (1) Slight disability of muscles--(i) Type of injury. Simple wound 
of muscle without debridement or infection.
    (ii) History and complaint. Service department record of superficial 
wound with brief treatment and return to duty. Healing with good 
functional results. No cardinal signs or symptoms of muscle disability 
as defined in paragraph (c) of this section.
    (iii) Objective findings. Minimal scar. No evidence of fascial 
defect, atrophy, or impaired tonus. No impairment of function or 
metallic fragments retained in muscle tissue.
    (2) Moderate disability of muscles--(i) Type of injury. Through and 
through or deep penetrating wound of short track from a single bullet, 
small shell or shrapnel fragment, without explosive effect of high 
velocity missile, residuals of debridement, or prolonged infection.
    (ii) History and complaint. Service department record or other 
evidence of in-service treatment for the wound. Record of consistent 
complaint of one or more of the cardinal signs and symptoms of muscle 
disability as defined in paragraph (c) of this section, particularly 
lowered threshold of fatigue after average use, affecting the particular 
functions controlled by the injured muscles.
    (iii) Objective findings. Entrance and (if present) exit scars, 
small or linear, indicating short track of missile through muscle 
tissue. Some loss of deep fascia or muscle substance or impairment of 
muscle tonus and loss of power or lowered threshold of fatigue when 
compared to the sound side.
    (3) Moderately severe disability of muscles--(i) Type of injury. 
Through and through or deep penetrating wound by small high velocity 
missile or large

[[Page 378]]

low-velocity missile, with debridement, prolonged infection, or 
sloughing of soft parts, and intermuscular scarring.
    (ii) History and complaint. Service department record or other 
evidence showing hospitalization for a prolonged period for treatment of 
wound. Record of consistent complaint of cardinal signs and symptoms of 
muscle disability as defined in paragraph (c) of this section and, if 
present, evidence of inability to keep up with work requirements.
    (iii) Objective findings. Entrance and (if present) exit scars 
indicating track of missile through one or more muscle groups. 
Indications on palpation of loss of deep fascia, muscle substance, or 
normal firm resistance of muscles compared with sound side. Tests of 
strength and endurance compared with sound side demonstrate positive 
evidence of impairment.
    (4) Severe disability of muscles--(i) Type of injury. Through and 
through or deep penetrating wound due to high-velocity missile, or large 
or multiple low velocity missiles, or with shattering bone fracture or 
open comminuted fracture with extensive debridement, prolonged 
infection, or sloughing of soft parts, intermuscular binding and 
scarring.
    (ii) History and complaint. Service department record or other 
evidence showing hospitalization for a prolonged period for treatment of 
wound. Record of consistent complaint of cardinal signs and symptoms of 
muscle disability as defined in paragraph (c) of this section, worse 
than those shown for moderately severe muscle injuries, and, if present, 
evidence of inability to keep up with work requirements.
    (iii) Objective findings. Ragged, depressed and adherent scars 
indicating wide damage to muscle groups in missile track. Palpation 
shows loss of deep fascia or muscle substance, or soft flabby muscles in 
wound area. Muscles swell and harden abnormally in contraction. Tests of 
strength, endurance, or coordinated movements compared with the 
corresponding muscles of the uninjured side indicate severe impairment 
of function. If present, the following are also signs of severe muscle 
disability:
    (A) X-ray evidence of minute multiple scattered foreign bodies 
indicating intermuscular trauma and explosive effect of the missile.
    (B) Adhesion of scar to one of the long bones, scapula, pelvic 
bones, sacrum or vertebrae, with epithelial sealing over the bone rather 
than true skin covering in an area where bone is normally protected by 
muscle.
    (C) Diminished muscle excitability to pulsed electrical current in 
electrodiagnostic tests.
    (D) Visible or measurable atrophy.
    (E) Adaptive contraction of an opposing group of muscles.
    (F) Atrophy of muscle groups not in the track of the missile, 
particularly of the trapezius and serratus in wounds of the shoulder 
girdle.
    (G) Induration or atrophy of an entire muscle following simple 
piercing by a projectile.

(Authority: 38 U.S.C. 1155

[62 FR 30238, June 3, 1997]



Sec. 4.57  Static foot deformities.

    It is essential to make an initial distinction between bilateral 
flatfoot as a congenital or as an acquired condition. The congenital 
condition, with depression of the arch, but no evidence of abnormal 
callosities, areas of pressure, strain or demonstrable tenderness, is a 
congenital abnormality which is not compensable or pensionable. In the 
acquired condition, it is to be remembered that depression of the 
longitudinal arch, or the degree of depression, is not the essential 
feature. The attention should be given to anatomical changes, as 
compared to normal, in the relationship of the foot and leg, 
particularly to the inward rotation of the superior portion of the os 
calcis, medial deviation of the insertion of the Achilles tendon, the 
medial tilting of the upper border of the astragalus. This is an 
unfavorable mechanical relationship of the parts. A plumb line dropped 
from the middle of the patella falls inside of the normal point. The 
forepart of the foot is abducted, and the foot everted. The plantar 
surface of the foot is painful and shows demonstrable tenderness, and 
manipulation of the foot produces spasm of the Achilles tendon, peroneal 
spasm due to adhesion about the peroneal sheaths, and other evidence of 
pain and limited

[[Page 379]]

motion. The symptoms should be apparent without regard to exercise. In 
severe cases there is gaping of bones on the inner border of the foot, 
and rigid valgus position with loss of the power of inversion and 
adduction. Exercise with undeveloped or unbalanced musculature, 
producing chronic irritation, can be an aggravating factor. In the 
absence of trauma or other definite evidence of aggravation, service 
connection is not in order for pes cavus which is a typically congenital 
or juvenile disease.



Sec. 4.58  Arthritis due to strain.

    With service incurred lower extremity amputation or shortening, a 
disabling arthritis, developing in the same extremity, or in both lower 
extremities, with indications of earlier, or more severe, arthritis in 
the injured extremity, including also arthritis of the lumbosacral 
joints and lumbar spine, if associated with the leg amputation or 
shortening, will be considered as service incurred, provided, however, 
that arthritis affecting joints not directly subject to strain as a 
result of the service incurred amputation will not be granted service 
connection. This will generally require separate evaluation of the 
arthritis in the joints directly subject to strain. Amputation, or 
injury to an upper extremity, is not considered as a causative factor 
with subsequently developing arthritis, except in joints subject to 
direct strain or actually injured.



Sec. 4.59  Painful motion.

    With any form of arthritis, painful motion is an important factor of 
disability, the facial expression, wincing, etc., on pressure or 
manipulation, should be carefully noted and definitely related to 
affected joints. Muscle spasm will greatly assist the identification. 
Sciatic neuritis is not uncommonly caused by arthritis of the spine. The 
intent of the schedule is to recognize painful motion with joint or 
periarticular pathology as productive of disability. It is the intention 
to recognize actually painful, unstable, or malaligned joints, due to 
healed injury, as entitled to at least the minimum compensable rating 
for the joint. Crepitation either in the soft tissues such as the 
tendons or ligaments, or crepitation within the joint structures should 
be noted carefully as points of contact which are diseased. Flexion 
elicits such manifestations. The joints involved should be tested for 
pain on both active and passive motion, in weight-bearing and nonweight-
bearing and, if possible, with the range of the opposite undamaged 
joint.



Sec. 4.60  [Reserved]



Sec. 4.61  Examination.

    With any form of arthritis (except traumatic arthritis) it is 
essential that the examination for rating purposes cover all major 
joints, with especial reference to Heberden's or Haygarth's nodes.



Sec. 4.62  Circulatory disturbances.

    The circulatory disturbances, especially of the lower extremity 
following injury in the popliteal space, must not be overlooked, and 
require rating generally as phlebitis.



Sec. 4.63  Loss of use of hand or foot.

    Loss of use of a hand or a foot, for the purpose of special monthly 
compensation, will be held to exist when no effective function remains 
other than that which would be equally well served by an amputation 
stump at the site of election below elbow or knee with use of a suitable 
prosthetic appliance. The determination will be made on the basis of the 
actual remaining function of the hand or foot, whether the acts of 
grasping, manipulation, etc., in the case of the hand, or of balance and 
propulsion, etc., in the case of the foot, could be accomplished equally 
well by an amputation stump with prosthesis.
    (a) Extremely unfavorable complete ankylosis of the knee, or 
complete ankylosis of 2 major joints of an extremity, or shortening of 
the lower extremity of 3\1/2\ inches (8.9 cms.) or more, will be taken 
as loss of use of the hand or foot involved.
    (b) Complete paralysis of the external popliteal nerve (common 
peroneal) and consequent, footdrop, accompanied

[[Page 380]]

by characteristic organic changes including trophic and circulatory 
disturbances and other concomitants confirmatory of complete paralysis 
of this nerve, will be taken as loss of use of the foot.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978]



Sec. 4.64  Loss of use of both buttocks.

    Loss of use of both buttocks shall be deemed to exist when there is 
severe damage to muscle Group XVII, bilateral (diagnostic code number 
5317) and additional disability rendering it impossible for the disabled 
person, without assistance, to rise from a seated position and from a 
stooped position (fingers to toes position) and to maintain postural 
stability (the pelvis upon head of femur). The assistance may be 
rendered by the person's own hands or arms, and, in the matter of 
postural stability, by a special appliance.



Sec. 4.65  [Reserved]



Sec. 4.66  Sacroiliac joint.

    The common cause of disability in this region is arthritis, to be 
identified in the usual manner. The lumbosacral and sacroiliac joints 
should be considered as one anatomical segment for rating purposes. X-
ray changes from arthritis in this location are decrease or obliteration 
of the joint space, with the appearance of increased bone density of the 
sacrum and ilium and sharpening of the margins of the joint. Disability 
is manifest from erector spinae spasm (not accounted for by other 
pathology), tenderness on deep palpation and percussion over these 
joints, loss of normal quickness of motion and resiliency, and postural 
defects often accompanied by limitation of flexion and extension of the 
hip. Traumatism is a rare cause of disability in this connection, except 
when superimposed upon congenital defect or upon an existent arthritis; 
to permit assumption of pure traumatic origin, objective evidence of 
damage to the joint, and history of trauma sufficiently severe to injure 
this extremely strong and practically immovable joint is required. There 
should be careful consideration of lumbosacral sprain, and the various 
symptoms of pain and paralysis attributable to disease affecting the 
lumbar vertebrae and the intervertebral disc.



Sec. 4.67  Pelvic bones.

    The variability of residuals following these fractures necessitates 
rating on specific residuals, faulty posture, limitation of motion, 
muscle injury, painful motion of the lumbar spine, manifest by muscle 
spasm, mild to moderate sciatic neuritis, peripheral nerve injury, or 
limitation of hip motion.



Sec. 4.68  Amputation rule.

    The combined rating for disabilities of an extremity shall not 
exceed the rating for the amputation at the elective level, were 
amputation to be performed. For example, the combined evaluations for 
disabilities below the knee shall not exceed the 40 percent evaluation, 
diagnostic code 5165. This 40 percent rating may be further combined 
with evaluation for disabilities above the knee but not to exceed the 
above the knee amputation elective level. Painful neuroma of a stump 
after amputation shall be assigned the evaluation for the elective site 
of reamputation.



Sec. 4.69  Dominant hand.

    Handedness for the purpose of a dominant rating will be determined 
by the evidence of record, or by testing on VA examination. Only one 
hand shall be considered dominant. The injured hand, or the most 
severely injured hand, of an ambidextrous individual will be considered 
the dominant hand for rating purposes.

(Authority: 38 U.S.C. 1155)

[62 FR 30239, June 3, 1997]



Sec. 4.70  Inadequate examinations.

    If the report of examination is inadequate as a basis for the 
required consideration of service connection and evaluation, the rating 
agency may request a supplementary report from the examiner giving 
further details as to the limitations of the disabled person's ordinary 
activity imposed by the disease, injury, or residual condition, the 
prognosis for return to, or continuance of, useful work. When the best 
interests of the service will be advanced by personal conference with 
the examiner,

[[Page 381]]

such conference may be arranged through channels.



Sec. 4.71  Measurement of ankylosis and joint motion.

    Plates I and II provide a standardized description of ankylosis and 
joint motion measurement. The anatomical position is considered as 
0[deg], with two major exceptions: (a) Shoulder rotation--arm abducted 
to 90[deg], elbow flexed to 90[deg] with the position of the forearm 
reflecting the midpoint 0[deg] between internal and external rotation of 
the shoulder; and (b) supination and pronation--the arm next to the 
body, elbow flexed to 90[deg], and the forearm in midposition 0[deg] 
between supination and pronation. Motion of the thumb and fingers should 
be described by appropriate reference to the joints (See Plate III) 
whose movement is limited, with a statement as to how near, in 
centimeters, the tip of the thumb can approximate the fingers, or how 
near the tips of the fingers can approximate the proximal transverse 
crease of palm.

[[Page 382]]

[GRAPHIC] [TIFF OMITTED] TC04NO91.001


[[Page 383]]


[GRAPHIC] [TIFF OMITTED] TC04NO91.002


[29 FR 6718, May 22, 1964, as amended at 43 FR 45349, Oct. 2, 1978; 67 
FR 48785, July 26, 2002]



Sec. 4.71a  Schedule of ratings--musculoskeletal system.

                  Acute, Subacute, or Chronic Diseases
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5000 Osteomyelitis, acute, subacute, or chronic:
  Of the pelvis, vertebrae, or extending into major joints, or       100
   with multiple localization or with long history of
   intractability and debility, anemia, amyloid liver changes,
   or other continuous constitutional symptoms..................
  Frequent episodes, with constitutional symptoms...............      60
  With definite involucrum or sequestrum, with or without             30
   discharging sinus............................................
  With discharging sinus or other evidence of active infection        20
   within the past 5 years......................................
  Inactive, following repeated episodes, without evidence of          10
   active infection in past 5 years.............................
  Note (1): A rating of 10 percent, as an exception to the
   amputation rule, is to be assigned in any case of active
   osteomyelitis where the amputation rating for the affected
   part is no percent. This 10 percent rating and the other
   partial ratings of 30 percent or less are to be combined with
   ratings for ankylosis, limited motion, nonunion or malunion,
   shortening, etc., subject, of course, to the amputation rule.
   The 60 percent rating, as it is based on constitutional
   symptoms, is not subject to the amputation rule. A rating for
   osteomyelitis will not be applied following cure by removal
   or radical resection of the affected bone.

[[Page 384]]

 
  Note (2): The 20 percent rating on the basis of activity
   within the past 5 years is not assignable following the
   initial infection of active osteomyelitis with no subsequent
   reactivation. The prerequisite for this historical rating is
   an established recurrent osteomyelitis. To qualify for the 10
   percent rating, 2 or more episodes following the initial
   infection are required. This 20 percent rating or the 10
   percent rating, when applicable, will be assigned once only
   to cover disability at all sites of previously active
   infection with a future ending date in the case of the 20
   percent rating.
5001 Bones and joints, tuberculosis of, active or inactive:
  Active........................................................     100
  Inactive: See Sec. Sec. 4.88b and 4.89.....................  ......
5002 Arthritis rheumatoid (atrophic) As an active process:
  With constitutional manifestations associated with active          100
   joint involvement, totally incapacitating....................
  Less than criteria for 100% but with weight loss and anemia         60
   productive of severe impairment of health or severely
   incapacitating exacerbations occurring 4 or more times a year
   or a lesser number over prolonged periods....................
  Symptom combinations productive of definite impairment of           40
   health objectively supported by examination findings or
   incapacitating exacerbations occurring 3 or more times a year
  One or two exacerbations a year in a well-established               20
   diagnosis....................................................
For chronic residuals:
  For residuals such as limitation of motion or ankylosis,
   favorable or unfavorable, rate under the appropriate
   diagnostic codes for the specific joints involved. Where,
   however, the limitation of motion of the specific joint or
   joints involved is noncompensable under the codes a rating of
   10 percent is for application for each such major joint or
   group of minor joints affected by limitation of motion, to be
   combined, not added under diagnostic code 5002. Limitation of
   motion must be objectively confirmed by findings such as
   swelling, muscle spasm, or satisfactory evidence of painful
   motion.
  Note: The ratings for the active process will not be combined
   with the residual ratings for limitation of motion or
   ankylosis. Assign the higher evaluation.
5003 Arthritis, degenerative (hypertrophic or osteoarthritis):
  Degenerative arthritis established by X-ray findings will be
   rated on the basis of limitation of motion under the
   appropriate diagnostic codes for the specific joint or joints
   involved (DC 5200 etc.). When however, the limitation of
   motion of the specific joint or joints involved is
   noncompensable under the appropriate diagnostic codes, a
   rating of 10 pct is for application for each such major joint
   or group of minor joints affected by limitation of motion, to
   be combined, not added under diagnostic code 5003. Limitation
   of motion must be objectively confirmed by findings such as
   swelling, muscle spasm, or satisfactory evidence of painful
   motion. In the absence of limitation of motion, rate as
   below:
    With X-ray evidence of involvement of 2 or more major joints      20
     or 2 or more minor joint groups, with occasional
     incapacitating exacerbations...............................
    With X-ray evidence of involvement of 2 or more major joints      10
     or 2 or more minor joint groups............................
  Note (1): The 20 pct and 10 pct ratings based on X-ray
   findings, above, will not be combined with ratings based on
   limitation of motion.
  Note (2): The 20 pct and 10 pct ratings based on X-ray
   findings, above, will not be utilized in rating conditions
   listed under diagnostic codes 5013 to 5024, inclusive.
5004 Arthritis, gonorrheal.
5005 Arthritis, pneumococcic.
5006 Arthritis, typhoid.
5007 Arthritis, syphilitic.
5008 Arthritis, streptococcic.
5009 Arthritis, other types (specify).
  With the types of arthritis, diagnostic codes 5004 through
   5009, rate the disability as rheumatoid arthritis.
5010 Arthritis, due to trauma, substantiated by X-ray findings:
 Rate as arthritis, degenerative.
5011 Bones, caisson disease of: Rate as arthritis, cord
 involvement, or deafness, depending on the severity of
 disabling manifestations.
5012 Bones, new growths of, malignant                                100
  Note: The 100 percent rating will be continued for 1 year
   following the cessation of surgical, X-ray, antineoplastic
   chemotherapy or other therapeutic procedure. At this point,
   if there has been no local recurrence or metastases, the
   rating will be made on residuals.
5013 Osteoporosis, with joint manifestations.
5014 Osteomalacia.
5015 Bones, new growths of, benign.
5016 Osteitis deformans.
5017 Gout.
5018 Hydrarthrosis, intermittent.
5019 Bursitis.
5020 Synovitis.
5021 Myositis.
5022 Periostitis.
5023 Myositis ossificans.
5024 Tenosynovitis.
  The diseases under diagnostic codes 5013 through 5024 will be
   rated on limitation of motion of affected parts, as
   arthritis, degenerative, except gout which will be rated
   under diagnostic code 5002.
5025 Fibromyalgia (fibrositis, primary fibromyalgia syndrome)
  With widespread musculoskeletal pain and tender points, with
   or without associated fatigue, sleep disturbance, stiffness,
   paresthesias, headache, irritable bowel symptoms, depression,
   anxiety, or Raynaud's-like symptoms:
    That are constant, or nearly so, and refractory to therapy..      40
    That are episodic, with exacerbations often precipitated by       20
     environmental or emotional stress or by overexertion, but
     that are present more than one-third of the time...........
    That require continuous medication for control..............      10

[[Page 385]]

 
  Note: Widespread pain means pain in both the left and right
   sides of the body, that is both above and below the waist,
   and that affects both the axial skeleton (i.e., cervical
   spine, anterior chest, thoracic spine, or low back) and the
   extremities.
------------------------------------------------------------------------


                           Prosthetic Implants
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
5051 Shoulder replacement (prosthesis).
  Prosthetic replacement of the shoulder joint:
    For 1 year following implantation of prosthesis.....     100     100
    With chronic residuals consisting of severe, painful      60      50
     motion or weakness in the affected extremity.......
    With intermediate degrees of residual weakness, pain
     or limitation of motion, rate by analogy to
     diagnostic codes 5200 and 5203.
    Minimum rating......................................      30      20
5052 Elbow replacement (prosthesis).
  Prosthetic replacement of the elbow joint:
    For 1 year following implantation of prosthesis.....     100     100
    With chronic residuals consisting of severe painful       50      40
     motion or weakness in the affected extremity.......
    With intermediate degrees of residual weakness, pain
     or limitation of motion rate by analogy to
     diagnostic codes 5205 through 5208.
    Minimum evaluation..................................      30      20
5053 Wrist replacement (prosthesis).
  Prosthetic replacement of wrist joint:
    For 1 year following implantation of prosthesis.....     100     100
    With chronic residuals consisting of severe, painful      40      30
     motion or weakness in the affected extremity.......
    With intermediate degrees of residual weakness, pain
     or limitation of motion, rate by analogy to
     diagnostic code 5214.
    Minimum rating......................................      20      20
  Note: The 100 pct rating for 1 year following
   implantation of prosthesis will commence after
   initial grant of the 1-month total rating assigned
   under Sec. 4.30 following hospital discharge.
5054 Hip replacement (prosthesis).
  Prosthetic replacement of the head of the femur or of
   the acetabulum:
    For 1 year following implantation of prosthesis.....  ......     100
    Following implantation of prosthesis with painful     ......  \1\ 90
     motion or weakness such as to require the use of
     crutches...........................................
    Markedly severe residual weakness, pain or            ......      70
     limitation of motion following implantation of
     prosthesis.........................................
    Moderately severe residuals of weakness, pain or      ......      50
     limitation of motion...............................
    Minimum rating......................................  ......      30
5055 Knee replacement (prosthesis).
  Prosthetic replacement of knee joint:
    For 1 year following implantation of prosthesis.....  ......     100
    With chronic residuals consisting of severe painful   ......      60
     motion or weakness in the affected extremity.......
    With intermediate degrees of residual weakness, pain
     or limitation of motion rate by analogy to
     diagnostic codes 5256, 5261, or 5262.
    Minimum rating......................................  ......      30
5056 Ankle replacement (prosthesis).
  Prosthetic replacement of ankle joint:
    For 1 year following implantation of prosthesis.....  ......     100
    With chronic residuals consisting of severe painful   ......      40
     motion or weakness.................................
    With intermediate degrees of residual weakness, pain
     or limitation of motion rate by analogy to 5270 or
     5271.
    Minimum rating......................................  ......      20
  Note (1): The 100 pct rating for 1 year following
   implantation of prosthesis will commence after
   initial grant of the 1-month total rating assigned
   under Sec. 4.30 following hospital discharge.
  Note (2): Special monthly compensation is assignable
   during the 100 pct rating period the earliest date
   permanent use of crutches is established.
---------------------------------------------------------
                      combinations of disabilities
------------------------------------------------------------------------
5104 Anatomical loss of one hand and loss of use of one   ......     \1\
 foot...................................................             100
5105 Anatomical loss of one foot and loss of use of one   ......     \1\
 hand...................................................             100
5106 Anatomical loss of both hands......................  ......     \1\
                                                                     100
5107 Anatomical loss of both feet.......................  ......     \1\
                                                                     100
5108 Anatomical loss of one hand and one foot...........  ......     \1\
                                                                     100
5109 Loss of use of both hands..........................  ......     \1\
                                                                     100
5110 Loss of use of both feet...........................  ......     \1\
                                                                     100
5111 Loss of use of one hand and one foot...............  ......     \1\
                                                                     100
------------------------------------------------------------------------
\1\ Also entitled to special monthly compensation.


[[Page 386]]


                          Table II--Ratings for Multiple Losses of Extremities With Dictator's Rating Code and 38 CFR Citation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Impairment of other extremity
                                 -----------------------------------------------------------------------------------------------------------------------
                                                                          Anatomical loss or  Anatomical loss or    Anatomical loss     Anatomical loss
   Impairment of one extremity    Anatomical loss or  Anatomical loss or   loss of use above   loss of use above     near shoulder         near hip
                                   loss of use below   loss of use below   elbow (preventing   knee (preventing   (preventing use of  (preventing use of
                                         elbow               knee         use of prosthesis)  use of prosthesis)      prosthesis)         prosthesis)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anatomical loss or loss of use    M Codes M-1 a, b,   L Codes L-1 d, e,   M\1/2\ Code M-5,    L\1/2\ Code L-2 c,  N Code N-3, 38 CFR  M Code M-3 c, 38
 below elbow.                      or c, 38 CFR        f, or g, 38 CFR     38 CFR 3.350        38 CFR 3.350        3.350 (f)(1)(xi).   CFR 3.350
                                   3.350 (c)(1)(i).    3.350(b).           (f)(1)(x).          (f)(1)(vi).                             (f)(1)(viii)
Anatomical loss or loss of use    ..................  L Codes L-1 a, b,   L\1/2\ Code L-2 b,  L\1/2\ Code L-2 a,  M Code M-3 b, 38    M Code M-3 a, 38
 below knee.                                           or c, 38 CFR        38 CFR 3.350        38 CFR 3.350        CFR 3.350           CFR 3.350
                                                       3.350(b).           (f)(1)(iii).        (f)(1)(i).          (f)(1)(iv).         (f)(1)(ii)
Anatomical loss or loss of use    ..................  ..................  N Code N-1, 38 CFR  M Code M-2 a, 38    N\1/2\ Code N-4,    M\1/2\ Code M-4 c,
 above elbow (preventing use of                                            3.350 (d)(1).       CFR 3.350           38 CFR 3.350        38 CFR 3.350
 prosthesis).                                                                                  (c)(1)(iii).        (f)(1)(ix).         (f)(1)(xi)
Anatomical loss or loss of use    ..................  ..................  ..................  M Code M-2 a, 38    M\1/2\ Code M-4 b,  M\1/2\ Code M-4 a,
 above knee (preventing use of                                                                 CFR 3.350           38 CFR 3.350        38 CFR 3.350
 prosthesis).                                                                                  (c)(1)(ii).         (f)(1)(vii).        (f)(1)(v)
Anatomical loss near shoulder     ..................  ..................  ..................  ..................  O Code O-1, 38 CFR  N Code N-2 b, 38
 (preventing use of prosthesis).                                                                                   3.350 (e)(1)(i).    CFR 3.350 (d)(3)
Anatomical loss near hip          ..................  ..................  ..................  ..................  ..................  N Code N-2 a, 38
 (preventing use of prosthesis).                                                                                                       CFR 3.350 (d)(2)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note.--Need for aid attendance or permanently bedridden qualifies for subpar. L. Code L-1 h, i (38 CFR 3.350(b)). Paraplegia with loss of use of both
  lower extremities and loss of anal and bladder sphincter control qualifies for subpar. O. Code O-2 (38 CFR 3.350(e)(2)). Where there are additional
  disabilities rated 50% or 100%, or anatomical or loss of use of a third extremity see 38 CFR 3.350(f) (3), (4) or (5).


(Authority: 38 U.S.C. 1115)

                      Amputations: Upper Extremity
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
  Arm, amputation of:
5120 Disarticulation....................................  \1\ 90  \1\ 90
5121 Above insertion of deltoid.........................  \1\ 90  \1\ 80
5122 Below insertion of deltoid.........................  \1\ 80  \1\ 70
  Forearm, amputation of:
5123 Above insertion of pronator teres..................  \1\ 80  \1\ 70
5124 Below insertion of pronator teres..................  \1\ 70  \1\ 60
5125 Hand, loss of use of...............................  \1\ 70  \1\ 60
---------------------------------------------------------
                       multiple finger amputations
------------------------------------------------------------------------
5126 Five digits of one hand, amputation of.............  \1\ 70  \1\ 60
  Four digits of one hand, amputation of:
5127 Thumb, index, long and ring........................  \1\ 70  \1\ 60
5128 Thumb, index, long and little......................  \1\ 70  \1\ 60
5129 Thumb, index, ring and little......................  \1\ 70  \1\ 60
5130 Thumb, long, ring and little.......................  \1\ 70  \1\ 60
5131 Index, long, ring and little.......................      60      50
  Three digits of one hand, amputation of:
5132 Thumb, index and long..............................      60      50
5133 Thumb, index and ring..............................      60      50
5134 Thumb, index and little............................      60      50
5135 Thumb, long and ring...............................      60      50
5136 Thumb, long and little.............................      60      50
5137 Thumb, ring and little.............................      60      50
5138 Index, long and ring...............................      50      40
5139 Index, long and little.............................      50      40
5140 Index, ring and little.............................      50      40
5141 Long, ring and little..............................      40      30
  Two digits of one hand, amputation of:
5142 Thumb and index....................................      50      40
5143 Thumb and long.....................................      50      40
5144 Thumb and ring.....................................      50      40
5145 Thumb and little...................................      50      40
5146 Index and long.....................................      40      30
5147 Index and ring.....................................      40      30
5148 Index and little...................................      40      30
5149 Long and ring......................................      30      20
5150 Long and little....................................      30      20
5151 Ring and little....................................      30      20
  (a) The ratings for multiple finger amputations apply
   to amputations at the proximal interphalangeal joints
   or through proximal phalanges........................
  (b) Amputation through middle phalanges will be rated
   as prescribed for unfavorable ankylosis of the
   fingers..............................................

[[Page 387]]

 
  (c) Amputations at distal joints, or through distal
   phalanges, other than negligible losses, will be
   rated as prescribed for favorable ankylosis of the
   fingers..............................................
  (d) Amputation or resection of metacarpal bones (more
   than one-half the bone lost) in multiple fingers
   injuries will require a rating of 10 percent added to
   (not combined with) the ratings, multiple finger
   amputations, subject to the amputation rule applied
   to the forearm.
  (e) Combinations of finger amputations at various
   levels, or finger amputations with ankylosis or
   limitation of motion of the fingers will be rated on
   the basis of the grade of disability; i.e.,
   amputation, unfavorable ankylosis, most
   representative of the levels or combinations. With an
   even number of fingers involved, and adjacent grades
   of disability, select the higher of the two grades.
  (f) Loss of use of the hand will be held to exist when
   no effective function remains other than that which
   would be equally well served by an amputation stump
   with a suitable prosthetic applicance.
---------------------------------------------------------
                        single finger amputations
------------------------------------------------------------------------
5152 Thumb, amputation of:
  With metacarpal resection.............................      40      30
  At metacarpophalangeal joint or through proximal            30      20
   phalanx..............................................
  At distal joint or through distal phalanx.............      20      20
5153 Index finger, amputation of
  With metacarpal resection (more than one-half the bone      30      20
   lost)................................................
  Without metacarpal resection, at proximal                   20      20
   interphalangeal joint or proximal thereto............
  Through middle phalanx or at distal joint.............      10      10
5154 Long finger, amputation of:
  With metacarpal resection (more than one-half the bone      20      20
   lost)................................................
  Without metacarpal resection, at proximal                   10      10
   interphalangeal joint or proximal thereto............
5155 Ring finger, amputation of:
  With metacarpal resection (more than one-half the bone      20      20
   lost)................................................
  Without metacarpal resection, at proximal                   10      10
   interphalangeal joint or proximal thereto............
5156 Little finger, amputation of:
  With metacarpal resection (more than one-half the bone      20      20
   lost)................................................
  Without metacarpal resection, at proximal                   10      10
   interphalangeal joint or proximal thereto............
  Note: The single finger amputation ratings are the
   only applicable ratings for amputations of whole or
   part of single fingers.
------------------------------------------------------------------------
\1\ Entitled to special monthly compensation.


[[Page 388]]

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[[Page 389]]


                      Amputations: Lower Extremity
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
  Thigh, amputation of:
5160 Disarticulation, with loss of extrinsic pelvic girdle        \2\ 90
 muscles........................................................
5161 Upper third, one-third of the distance from perineum to      \2\ 80
 knee joint measured from perineum..............................
5162 Middle or lower thirds.....................................  \2\ 60
  Leg, amputation of:
5163 With defective stump, thigh amputation recommended.........  \2\ 60
5164 Amputation not improvable by prosthesis controlled by        \2\ 60
 natural knee action............................................
5165 At a lower level, permitting prosthesis....................  \2\ 40
5166 Forefoot, amputation proximal to metatarsal bones (more      \2\ 40
 than one-half of metatarsal loss)..............................
5167 Foot, loss of use of.......................................  \2\ 40
5170 Toes, all, amputation of, without metatarsal loss..........      30
5171 Toe, great, amputation of:
  With removal of metatarsal head...............................      30
  Without metatarsal involvement................................      10
5172 Toes, other than great, amputation of, with removal of
 metatarsal head:
  One or two....................................................      20
  Without metatarsal involvement................................       0
5173 Toes, three or four, amputation of, without metatarsal
 involvement:
  Including great toe...........................................      20
  Not including great toe.......................................      10
------------------------------------------------------------------------
\2\ Also entitled to special monthly compensation.


[[Page 390]]

[GRAPHIC] [TIFF OMITTED] TC04NO91.003


[[Page 391]]


                          The Shoulder and Arm
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
5200 Scapulohumeral articulation, ankylosis of:
  Note: The scapula and humerus move as one piece.
  Unfavorable, abduction limited to 25[deg] from side...      50      40
  Intermediate between favorable and unfavorable........      40      30
  Favorable, abduction to 60[deg], can reach mouth and        30      20
   head.................................................
5201 Arm, limitation of motion of:
  To 25[deg] from side..................................      40      30
  Midway between side and shoulder level................      30      20
  At shoulder level.....................................      20      20
5202 Humerus, other impairment of:
  Loss of head of (flail shoulder)......................      80      70
  Nonunion of (false flail joint).......................      60      50
  Fibrous union of......................................      50      40
  Recurrent dislocation of at scapulohumeral joint.
    With frequent episodes and guarding of all arm            30      20
     movements..........................................
    With infrequent episodes, and guarding of movement        20      20
     only at shoulder level.............................
  Malunion of:
    Marked deformity....................................      30      20
    Moderate deformity..................................      20      20
5203 Clavicle or scapula, impairment of:
  Dislocation of........................................      20      20
  Nonunion of:
    With loose movement.................................      20      20
    Without loose movement..............................      10      10
  Malunion of...........................................      10      10
  Or rate on impairment of function of contiguous joint.
------------------------------------------------------------------------


                          The Elbow and Forearm
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
5205 Elbow, ankylosis of:
  Unfavorable, at an angle of less than 50[deg] or with       60      50
   complete loss of supination or pronation.............
  Intermediate, at an angle of more than 90[deg], or          50      40
   between 70[deg] and 50[deg]..........................
  Favorable, at an angle between 90[deg] and 70[deg]....      40      30
5206 Forearm, limitation of flexion of:
  Flexion limited to 45[deg]............................      50      40
  Flexion limited to 55[deg]............................      40      30
  Flexion limited to 70[deg]............................      30      20
  Flexion limited to 90[deg]............................      20      20
  Flexion limited to 100[deg]...........................      10      10
  Flexion limited to 110[deg]...........................       0       0
5207 Forearm, limitation of extension of:
  Extension limited to 110[deg].........................      50      40
  Extension limited to 100[deg].........................      40      30
  Extension limited to 90[deg]..........................      30      20
  Extension limited to 75[deg]..........................      20      20
  Extension limited to 60[deg]..........................      10      10
  Extension limited to 45[deg]..........................      10      10
5208 Forearm, flexion limited to 100[deg] and extension       20      20
 to 45[deg].............................................
5209 Elbow, other impairment of Flail joint.............      60      50
  Joint fracture, with marked cubitus varus or cubitus        20      20
   valgus deformity or with ununited fracture of head of
   radius...............................................
5210 Radius and ulna, nonunion of, with flail false           50      40
 joint..................................................
5211 Ulna, impairment of:
  Nonunion in upper half, with false movement:
    With loss of bone substance (1 inch (2.5 cms.) or         40      30
     more) and marked deformity.........................
    Without loss of bone substance or deformity.........      30      20
    Nonunion in lower half..............................      20      20
    Malunion of, with bad alignment.....................      10      10
5212 Radius, impairment of:
  Nonunion in lower half, with false movement:
    With loss of bone substance (1 inch (2.5 cms.) or         40      30
     more) and marked deformity.........................
    Without loss of bone substance or deformity.........      30      20
    Nonunion in upper half..............................      20      20
    Malunion of, with bad alignment.....................      10      10
5213 Supination and pronation, impairment of:
  Loss of (bone fusion):
    The hand fixed in supination or hyperpronation......      40      30
    The hand fixed in full pronation....................      30      20
    The hand fixed near the middle of the arc or              20      20
     moderate pronation.................................
  Limitation of pronation:
    Motion lost beyond middle of arc....................      30      20
    Motion lost beyond last quarter of arc, the hand          20      20
     does not approach full pronation...................
  Limitation of supination:
    To 30[deg] or less..................................      10      10
  Note: In all the forearm and wrist injuries, codes
   5205 through 5213, multiple impaired finger movements
   due to tendon tie-up, muscle or nerve injury, are to
   be separately rated and combined not to exceed rating
   for loss of use of hand.
------------------------------------------------------------------------


                                The Wrist
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
5214 Wrist, ankylosis of:
  Unfavorable, in any degree of palmar flexion, or with       50      40
   ulnar or radial deviation............................
  Any other position, except favorable..................      40      30
  Favorable in 20[deg] to 30[deg] dorsiflexion..........      30      20
  Note: Extremely unfavorable ankylosis will be rated as
   loss of use of hands under diagnostic code 5125.
5215 Wrist, limitation of motion of:
  Dorsiflexion less than 15[deg]........................      10      10
  Palmar flexion limited in line with forearm...........      10      10
------------------------------------------------------------------------


[[Page 392]]


  Evaluation of Ankylosis or Limitation of Motion of Single or Multiple
                           Digits of the Hand
------------------------------------------------------------------------
                                                              Rating
                                                         ---------------
                                                           Major   Minor
------------------------------------------------------------------------
(1) For the index, long, ring, and little fingers         ......  ......
 (digits II, III, IV, and V), zero degrees of flexion
 represents the fingers fully extended, making a
 straight line with the rest of the hand. The position
 of function of the hand is with the wrist dorsiflexed
 20 to 30 degrees, the metacarpophalangeal and proximal
 interphalangeal joints flexed to 30 degrees, and the
 thumb (digit I) abducted and rotated so that the thumb
 pad faces the finger pads. Only joints in these
 positions are considered to be in favorable position.
 For digits II through V, the metacarpophalangeal joint
 has a range of zero to 90 degrees of flexion, the
 proximal interphalangeal joint has a range of zero to
 100 degrees of flexion, and the distal (terminal)
 interphalangeal joint has a range of zero to 70 or 80
 degrees of flexion.....................................
(2) When two or more digits of the same hand are          ......  ......
 affected by any combination of amputation, ankylosis,
 or limitation of motion that is not otherwise specified
 in the rating schedule, the evaluation level assigned
 will be that which best represents the overall
 disability (i.e., amputation, unfavorable or favorable
 ankylosis, or limitation of motion), assigning the
 higher level of evaluation when the level of disability
 is equally balanced between one level and the next
 higher level...........................................
(3) Evaluation of ankylosis of the index, long, ring,
 and little fingers:
    (i) If both the metacarpophalangeal and proximal      ......  ......
     interphalangeal joints of a digit are ankylosed,
     and either is in extension or full flexion, or
     there is rotation or angulation of a bone, evaluate
     as amputation without metacarpal resection, at
     proximal interphalangeal joint or proximal thereto.
    (ii) If both the metacarpophalangeal and proximal
     interphalangeal joints of a digit are ankylosed,
     evaluate as unfavorable ankylosis, even if each
     joint is individually fixed in a favorable position
    (iii) If only the metacarpophalangeal or proximal     ......  ......
     interphalangeal joint is ankylosed, and there is a
     gap of more than two inches (5.1 cm.) between the
     fingertip(s) and the proximal transverse crease of
     the palm, with the finger(s) flexed to the extent
     possible, evaluate as unfavorable ankylosis........
    (iv) If only the metacarpophalangeal or proximal      ......  ......
     interphalangeal joint is ankylosed, and there is a
     gap of two inches (5.1 cm.) or less between the
     fingertip(s) and the proximal transverse crease of
     the palm, with the finger(s) flexed to the extent
     possible, evaluate as favorable ankylosis..........
(4) Evaluation of ankylosis of the thumb:
    (i) If both the carpometacarpal and interphalangeal   ......  ......
     joints are ankylosed, and either is in extension or
     full flexion, or there is rotation or angulation of
     a bone, evaluate as amputation at
     metacarpophalangeal joint or through proximal
     phalanx............................................
    (ii) If both the carpometacarpal and interphalangeal  ......  ......
     joints are ankylosed, evaluate as unfavorable
     ankylosis, even if each joint is individually fixed
     in a favorable position............................
    (iii) If only the carpometacarpal or interphalangeal  ......  ......
     joint is ankylosed, and there is a gap of more than
     two inches (5.1 cm.) between the thumb pad and the
     fingers, with the thumb attempting to oppose the
     fingers, evaluate as unfavorable ankylosis.........
    (iv) If only the carpometacarpal or interphalangeal   ......  ......
     joint is ankylosed, and there is a gap of two
     inches (5.1 cm.) or less between the thumb pad and
     the fingers, with the thumb attempting to oppose
     the fingers, evaluate as favorable ankylosis.......
(5) If there is limitation of motion of two or more       ......  ......
 digits, evaluate each digit separately and combine the
 evaluations............................................
---------------------------------------------------------
                I. Multiple Digits: Unfavorable Ankylosis
------------------------------------------------------------------------
5216 Five digits of one hand, unfavorable ankylosis of..      60      50
Note: Also consider whether evaluation as amputation is
 warranted.
5217 Four digits of one hand, unfavorable ankylosis of:
    Thumb and any three fingers.........................      60      50
    Index, long, ring, and little fingers...............      50      40
Note: Also consider whether evaluation as amputation is
 warranted.
5218 Three digits of one hand, unfavorable ankylosis of:
    Thumb and any two fingers...........................      50      40
    Index, long, and ring; index, long, and little; or        40      30
     index, ring, and little fingers....................
    Long, ring, and little fingers......................      30      20
Note: Also consider whether evaluation as amputation is
 warranted.
5219 Two digits of one hand, unfavorable ankylosis of:
    Thumb and any finger................................      40      30

[[Page 393]]

 
    Index and long; index and ring; or index and little       30      20
     fingers............................................
    Long and ring; long and little; or ring and little        20      20
     fingers............................................
Note: Also consider whether evaluation as amputation is
 warranted.
---------------------------------------------------------
                II. Multiple Digits: Favorable Ankylosis
------------------------------------------------------------------------
5220 Five digits of one hand, favorable ankylosis of....      50      40
5221 Four digits of one hand, favorable ankylosis of:
    Thumb and any three fingers.........................      50      40
    Index, long, ring, and little fingers...............      40      30
5222 Three digits of one hand, favorable ankylosis of:
    Thumb and any two fingers...........................      40      30
    Index, long, and ring; index, long, and little; or        30      20
     index, ring, and little fingers....................
    Long, ring and little fingers.......................      20      20
5223 Two digits of one hand, favorable ankylosis of:
    Thumb and any finger................................      30      20
    Index and long; index and ring; or index and little       20      20
     fingers............................................
    Long and ring; long and little; or ring and little        10      10
     fingers............................................
---------------------------------------------------------
                   III. Ankylosis of Individual Digits
------------------------------------------------------------------------
5224 Thumb, ankylosis of:
    Unfavorable.........................................      20      20
    Favorable...........................................      10      10
Note: Also consider whether evaluation as amputation is
 warranted and whether an additional evaluation is
 warranted for resulting limitation of motion of other
 digits or interference with overall function of the
 hand.
5225 Index finger, ankylosis of:
    Unfavorable or favorable............................      10      10
Note: Also consider whether evaluation as amputation is
 warranted and whether an additional evaluation is
 warranted for resulting limitation of motion of other
 digits or interference with overall function of the
 hand.
5226 Long finger, ankylosis of:
    Unfavorable or favorable............................      10      10
Note: Also consider whether evaluation as amputation is
 warranted and whether an additional evaluation is
 warranted for resulting limitation of motion of other
 digits or interference with overall function of the
 hand.
5227 Ring or little finger, ankylosis of:
    Unfavorable or favorable............................       0       0
Note: Also consider whether evaluation as amputation is
 warranted and whether an additional evaluation is
 warranted for resulting limitation of motion of other
 digits or interference with overall function of the
 hand.
---------------------------------------------------------
              IV. Limitation of Motion of Individual Digits
------------------------------------------------------------------------
5228 Thumb, limitation of motion:
    With a gap of more than two inches (5.1 cm.) between      20      20
     the thumb pad and the fingers, with the thumb
     attempting to oppose the fingers...................
    With a gap of one to two inches (2.5 to 5.1 cm.)          10      10
     between the thumb pad and the fingers, with the
     thumb attempting to oppose the fingers.............
    With a gap of less than one inch (2.5 cm.) between         0       0
     the thumb pad and the fingers, with the thumb
     attempting to oppose the fingers...................
5229 Index or long finger, limitation of motion:
    With a gap of one inch (2.5 cm.) or more between the      10      10
     fingertip and the proximal transverse crease of the
     palm, with the finger flexed to the extent
     possible, or; with extension limited by more than
     30 degrees.........................................
    With a gap of less than one inch (2.5 cm.) between         0       0
     the fingertip and the proximal transverse crease of
     the palm, with the finger flexed to the extent
     possible, and; extension is limited by no more than
     30 degrees.........................................
5230 Ring or little finger, limitation of motion:
    Any limitation of motion............................       0       0
------------------------------------------------------------------------


                                The Spine
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
  General Rating Formula for Diseases and Injuries of the Spine
 
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated
 under the Formula for Rating Intervertebral Disc Syndrome Based
 on Incapacitating Episodes):
    With or without symptoms such as pain (whther or not it
     radiates), stiffness, or aching in the area of the spine
     affected by residuals of injury or disease
        Unfavorable ankylosis of the entire spine...............     100
        Unfavorable ankylosis of the entire thoracolumbar spine.      50

[[Page 394]]

 
        Unfavorable ankylosis of the entire cervical spine; or,       40
         forward flexion of the thoracolumbar spine 30 degrees
         or less; or, favorable ankylosis of the entire
         thoracolumbar spine....................................
        Forward flexion of the cervical spine 15 degrees or           30
         less; or, favorable ankylosis of the entire cervical
         spine..................................................
        Forward flexion of the thoracolumbar spine greater than       20
         30 degrees but not greater than 60 degrees; or, forward
         flexion of the cervical spine greater than 15 degrees
         but not greater than 30 degrees; or, the combined range
         of motion of the thoracolumbar spine not greater than
         120 degrees; or, the combined range of motion of the
         cervical spine not greater than 170 degrees; or, muscle
         spasm or guarding severe enough to result in an
         abnormal gait or abnormal spinal contour such as
         scoliosis, reversed lordosis, or abnormal kyphosis.....
        Forward flexion of the thoracolumbar spine greater than       10
         60 degrees but not greater than 85 degrees; or, forward
         flexion of the cervical spine greater than 30 degrees
         but not greater than 40 degrees; or, combined range of
         motion of the thoracolumbar spine greater than 120
         degrees but not greater than 235 degrees; or, combined
         range of motion of the cervical spine greater than 170
         degrees but not greater than 335 degrees; or, muscle
         spasm, guarding, or localized tenderness not resulting
         in abnormal gait or abnormal spinal contour; or,
         vertebral body fracture with loss of 50 percent or more
         of the height..........................................
Note (1): Evaluate any associated objective neurologic
 abnormalities, including, but not limited to, bowel or bladder
 impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes,
 normal forward flexion of the cervical spine is zero to 45
 degrees, extension is zero to 45 degrees, left and right
 lateral flexion are zero to 45 degrees, and left and right
 lateral rotation are zero to 80 degrees. Normal forward flexion
 of the thoracolumbar spine is zero to 90 degrees, extension is
 zero to 30 degrees, left and right lateral flexion are zero to
 30 degrees, and left and right lateral rotation are zero to 30
 degrees. The combined range of motion refers to the sum of the
 range of forward flexion, extension, left and right lateral
 flexion, and left and right rotation. The normal combined range
 of motion of the cervical spine is 340 degrees and of the
 thoracolumbar spine is 240 degrees.The normal ranges of motion
 for each component of spinal motion provided in this note are
 the maximum that can be used for calculation of the combined
 range of motion.
Note (3): In exceptional cases, an examiner may state that
 because of age, body habitus, neurologic disease, or other
 factors not the result of disease or injury of the spine, the
 range of motion of the spine in a particular individual should
 be considered normal for that individual, even though it does
 not conform to the normal range of motion stated in Note (2).
 Provided that the examiner supplies an explanation, the
 examiner's assessment that the range of motion is normal for
 that individual will be accepted.
Note (4): Round each range of motion measurement to the nearest
 five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is
 a condition in which the entire cervical spine, the entire
 thoracolumbar spine, or the entire spine is fixed in flexion or
 extension, and the ankylosis results in one or more of the
 following: difficulty walking because of a limited line of
 vision; restricted opening of the mouth and chewing; breathing
 limited to diaphragmatic respiration; gastrointestinal symptoms
 due to pressure of the costal margin on the abdomen; dyspnea or
 dysphagia; atlantoaxial or cervical subluxation or dislocation;
 or neurologic symptoms due to nerve root stretching. Fixation
 of a spinal segment in neutral position (zero degrees) always
 represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar
 and cervical spine segments, except when there is unfavorable
 ankylosis of both segments, which will be rated as a single
 disability.
 5235 Vertebral fracture or dislocation
 5236 Sacroiliac injury and weakness
 5237 Lumbosacral or cervical strain
 5238 Spinal stenosis
 5239 Spondylolisthesis or segmental instability
 5240 Ankylosing spondylitis
 5241 Spinal fusion
 5242 Degenerative arthritis of the spine (see also diagnostic
 code 5003)
 5243 Intervertebral disc syndrome
Evaluate intervertebral disc syndrome (preoperatively or
 postoperatively) either under the General Rating Formula for
 Diseases and Injuries of the Spine or under the Formula for
 Rating Intervertebral Disc Syndrome Based on Incapacitating
 Episodes, whichever method results in the higher evaluation
 when all disabilities are combined under Sec. 4.25.
 

[[Page 395]]

 
    Formula for Rating Intervertebral Disc Syndrome Based on
                     Incapacitating Episodes
 
With incapacitating episodes having a total duration of at least      60
 6 weeks during the past 12 months..............................
With incapacitating episodes having a total duration of at least      40
 4 weeks but less than 6 weeks during the past 12 months........
With incapacitating episodes having a total duration of at least      20
 2 weeks but less than 4 weeks during the past 12 months........
With incapacitating episodes having a total duration of at least      10
 one week but less than 2 weeks during the past 12 months.......
Note (1): For purposes of evaluations under diagnostic code
 5243, an incapacitating episode is a period of acute signs and
 symptoms due to intervertebral disc syndrome that requires bed
 rest prescribed by a physician and treatment by a physician.
Note (2): If intervertebral disc syndrome is present in more
 than one spinal segment, provided that the effects in each
 spinal segment are clearly distinct, evaluate each segment on
 the basis of incapacitating episodes or under the General
 Rating Formula for Diseases and Injuries of the Spine,
 whichever method results in a higher evaluation for that
 segment.
------------------------------------------------------------------------


[[Page 396]]

[GRAPHIC] [TIFF OMITTED] TR27AU03.003


[[Page 397]]


                            The Hip and Thigh
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5250 Hip, ankylosis of:
  Unfavorable, extremely unfavorable ankylosis, the foot not      \3\ 90
   reaching ground, crutches necessitated.......................
  Intermediate..................................................      70
  Favorable, in flexion at an angle between 20[deg] and 40[deg],      60
   and slight adduction or abduction............................
5251 Thigh, limitation of extension of:
  Extension limited to 5[deg]...................................      10
5252 Thigh, limitation of flexion of:
  Flexion limited to 10[deg]....................................      40
  Flexion limited to 20[deg]....................................      30
  Flexion limited to 30[deg]....................................      20
  Flexion limited to 45[deg]....................................      10
5253 Thigh, impairment of:
  Limitation of abduction of, motion lost beyond 10[deg]........      20
  Limitation of adduction of, cannot cross legs.................      10
  Limitation of rotation of, cannot toe-out more than 15[deg],        10
   affected leg.................................................
5254 Hip, flail joint...........................................      80
5255 Femur, impairment of:
  Fracture of shaft or anatomical neck of:
    With nonunion, with loose motion (spiral or oblique               80
     fracture)..................................................
    With nonunion, without loose motion, weightbearing preserved      60
     with aid of brace..........................................
  Fracture of surgical neck of, with false joint................      60
  Malunion of:
    With marked knee or hip disability..........................      30
    With moderate knee or hip disability........................      20
    With slight knee or hip disability..........................     10
------------------------------------------------------------------------
\3\ Entitled to special monthly compensation.


                            The Knee and Leg
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5256 Knee, ankylosis of:
  Extremely unfavorable, in flexion at an angle of 45[deg] or         60
   more.........................................................
  In flexion between 20[deg] and 45[deg]........................      50
  In flexion between 10[deg] and 20[deg]........................      40
  Favorable angle in full extension, or in slight flexion             30
   between 0[deg] and 10[deg]...................................
5257 Knee, other impairment of:
  Recurrent subluxation or lateral instability:
    Severe......................................................      30
    Moderate....................................................      20
    Slight......................................................      10
5258 Cartilage, semilunar, dislocated, with frequent episodes of      20
 ``locking,'' pain, and effusion into the joint.................
5259 Cartilage, semilunar, removal of, symptomatic..............      10
5260 Leg, limitation of flexion of:
  Flexion limited to 15[deg]....................................      30
  Flexion limited to 30[deg]....................................      20
  Flexion limited to 45[deg]....................................      10
  Flexion limited to 60[deg]....................................       0
5261 Leg, limitation of extension of:
  Extension limited to 45[deg]..................................      50
  Extension limited to 30[deg]..................................      40
  Extension limited to 20[deg]..................................      30
  Extension limited to 15[deg]..................................      20
  Extension limited to 10[deg]..................................      10
  Extension limited to 5[deg]...................................       0
5262 Tibia and fibula, impairment of:
  Nonunion of, with loose motion, requiring brace...............      40
  Malunion of:
    With marked knee or ankle disability........................      30
    With moderate knee or ankle disability......................      20
    With slight knee or ankle disability........................      10
5263 Genu recurvatum (acquired, traumatic, with weakness and          10
 insecurity in weight-bearing objectively demonstrated).........
------------------------------------------------------------------------


                                The Ankle
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5270 Ankle, ankylosis of:
  In plantar flexion at more than 40[deg], or in dorsiflexion at      40
   more than 10[deg] or with abduction, adduction, inversion or
   eversion deformity...........................................
  In plantar flexion, between 30[deg] and 40[deg], or in              30
   dorsiflexion, between 0[deg] and 10[deg].....................
  In plantar flexion, less than 30[deg].........................      20
5271 Ankle, limited motion of:
  Marked........................................................      20
  Moderate......................................................      10
5272 Subastragalar or tarsal joint, ankylosis of:
  In poor weight-bearing position...............................      20
  In good weight-bearing position...............................      10
5273 Os calcis or astragalus, malunion of:
  Marked deformity..............................................      20
  Moderate deformity............................................      10
5274 Astragalectomy.............................................      20
------------------------------------------------------------------------


                    Shortening of the Lower Extremity
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5275 Bones, of the lower extremity, shortening of:
  Over 4 inches (10.2 cms.).....................................  \3\ 60
  3\1/2\ to 4 inches (8.9 cms. to 10.2 cms.)....................  \3\ 50
  3 to 3\1/2\ inches (7.6 cms. to 8.9 cms.).....................      40
  2\1/2\ to 3 inches (6.4 cms. to 7.6 cms.).....................      30
  2 to 2\1/2\ inches (5.1 cms. to 6.4 cms.).....................      20
  1\1/4\ to 2 inches (3.2 cms. to 5.1 cms.).....................      10
  Note: Measure both lower extremities from anterior superior
   spine of the ilium to the internal malleolus of the tibia.
   Not to be combined with other ratings for fracture or faulty
   union in the same extremity.
------------------------------------------------------------------------
\3\ Also entitled to special monthly compensation.


                                The Foot
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5276 Flatfoot, acquired:
  Pronounced; marked pronation, extreme tenderness of plantar
   surfaces of the feet, marked inward displacement and severe
   spasm of the tendo achillis on manipulation, not improved by
   orthopedic shoes or appliances...............................
  Bilateral.....................................................      50
  Unilateral....................................................      30
  Severe; objective evidence of marked deformity (pronation,
   abduction, etc.), pain on manipulation and use accentuated,
   indication of swelling on use, characteristic callosities:
    Bilateral...................................................      30
    Unilateral..................................................      20

[[Page 398]]

 
  Moderate; weight-bearing line over or medial to great toe,          10
   inward bowing of the tendo achillis, pain on manipulation and
   use of the feet, bilateral or unilateral.....................
  Mild; symptoms relieved by built-up shoe or arch support......       0
5277 Weak foot, bilateral:
  A symptomatic condition secondary to many constitutional
   conditions, characterized by atrophy of the musculature,
   disturbed circulation, and weakness:
    Rate the underlying condition, minimum rating...............      10
5278 Claw foot (pes cavus), acquired:
  Marked contraction of plantar fascia with dropped forefoot,
   all toes hammer toes, very painful callosities, marked varus
   deformity:
    Bilateral...................................................      50
    Unilateral..................................................      30
  All toes tending to dorsiflexion, limitation of dorsiflexion
   at ankle to right angle, shortened plantar fascia, and marked
   tenderness under metatarsal heads:
    Bilateral...................................................      30
    Unilateral..................................................      20
  Great toe dorsiflexed, some limitation of dorsiflexion at
   ankle, definite tenderness under metatarsal heads:
    Bilateral...................................................      10
    Unilateral..................................................      10
  Slight........................................................       0
5279 Metatarsalgia, anterior (Morton's disease), unilateral, or       10
 bilateral......................................................
5280 Hallux valgus, unilateral:
  Operated with resection of metatarsal head....................      10
  Severe, if equivalent to amputation of great toe..............      10
5281 Hallux rigidus, unilateral, severe:
  Rate as hallux valgus, severe.
     Note: Not to be combined with claw foot ratings.
5282 Hammer toe:
  All toes, unilateral without claw foot........................      10
  Single toes...................................................       0
5283 Tarsal, or metatarsal bones, malunion of, or nonunion of:
  Severe........................................................      30
  Moderately severe.............................................      20
  Moderate......................................................      10
  Note: With actual loss of use of the foot, rate 40 percent.
5284 Foot injuries, other:
  Severe........................................................      30
  Moderately severe.............................................      20
  Moderate......................................................      10
  Note: With actual loss of use of the foot, rate 40 percent.
------------------------------------------------------------------------


                                The Skull
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5296 Skull, loss of part of, both inner and outer tables:
  With brain hernia.............................................      80
  Without brain hernia:
    Area larger than size of a 50-cent piece or 1.140 in \2\          50
     (7.355 cm \2\).............................................
    Area intermediate...........................................      30
    Area smaller than the size of a 25-cent piece or 0.716 in         10
     \2\ (4.619 cm \2\).........................................
    Note: Rate separately for intracranial complications.
------------------------------------------------------------------------


                                The Ribs
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5297 Ribs, removal of:
  More than six.................................................      50
  Five or six...................................................      40
  Three or four.................................................      30
  Two...........................................................      20
  One or resection of two or more ribs without regeneration.....      10
  Note (1): The rating for rib resection or removal is not to be
   applied with ratings for purrulent pleurisy, lobectomy,
   pneumonectomy or injuries of pleural cavity.
  Note (2): However, rib resection will be considered as rib
   removal in thoracoplasty performed for collapse therapy or to
   accomplish obliteration of space and will be combined with
   the rating for lung collapse, or with the rating for
   lobectomy, pneumonectomy or the graduated ratings for
   pulmonary tuberculosis.
------------------------------------------------------------------------


                               The Coccyx
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5298 Coccyx, removal of:
  Partial or complete, with painful residuals...................      10
  Without painful residuals.....................................       0
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 
FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct. 
2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 67 FR 
48785, July 26, 2002; 67 FR 54349, Aug. 22, 2002; 68 FR 51456, Aug. 27, 
2003; 69 FR 32450, June 10, 2004]



Sec. 4.72  [Reserved]



Sec. 4.73  Schedule of ratings--muscle injuries.

    Note: When evaluating any claim involving muscle injuries resulting 
in loss of use of any extremity or loss of use of both buttocks 
(diagnostic code 5317, Muscle Group XVII), refer to Sec. 3.350 of this 
chapter to determine whether the veteran may be entitled to special 
monthly compensation.

[[Page 399]]



                       The Shoulder Girdle and Arm
------------------------------------------------------------------------
                                                           Rating
                                                  ----------------------
                                                   Dominant  Nondominant
------------------------------------------------------------------------
5301 Group I. Function: Upward rotation of
 scapula; elevation of arm above shoulder level.
 Extrinsic muscles of shoulder girdle: (1)
 Trapezius; (2) levator scapulae; (3) serratus
 magnus..........................................
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
5302 Group II. Function: Depression of arm from
 vertical overhead to hanging at side (1, 2);
 downward rotation of scapula (3, 4); 1 and 2 act
 with Group III in forward and backward swing of
 arm. Extrinsic muscles of shoulder girdle: (1)
 Pectoralis major II (costosternal); (2)
 latissimus dorsi and teres major (teres major,
 although technically an intrinsic muscle, is
 included with latissimus dorsi); (3) pectoralis
 minor; (4) rhomboid.............................
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       20          20
    Slight.......................................        0           0
5303 Group III. Function: Elevation and abduction
 of arm to level of shoulder; act with 1 and 2 of
 Group II in forward and backward swing of arm.
 Intrinsic muscles of shoulder girdle: (1)
 Pectoralis major I (clavicular); (2) deltoid....
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       20          20
    Slight.......................................        0           0
5304 Group IV. Function: Stabilization of
 shoulder against injury in strong movements,
 holding head of humerus in socket; abduction;
 outward rotation and inward rotation of arm.
 Intrinsic muscles of shoulder girdle: (1)
 Supraspinatus; (2) infraspinatus and teres
 minor; (3) subscapularis; (4) coracobrachialis..
    Severe.......................................       30          20
    Moderately Severe............................       20          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
5305 Group V. Function: Elbow supination (1)
 (long head of biceps is stabilizer of shoulder
 joint); flexion of elbow (1, 2, 3). Flexor
 muscles of elbow: (1) Biceps; (2) brachialis;
 (3) brachioradialis.............................
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
5306 Group VI. Function: Extension of elbow (long
 head of triceps is stabilizer of shoulder
 joint). Extensor muscles of the elbow: (1)
 Triceps; (2) anconeus...........................
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
------------------------------------------------------------------------


                          The Forearm and Hand
------------------------------------------------------------------------
                                                           Rating
                                                  ----------------------
                                                   Dominant  Nondominant
------------------------------------------------------------------------
5307 Group VII. Function: Flexion of wrist and
 fingers. Muscles arising from internal condyle
 of humerus: Flexors of the carpus and long
 flexors of fingers and thumb; pronator..........
    Severe.......................................       40          30
    Moderately Severe............................       30          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
5308 Group VIII. Function: Extension of wrist,
 fingers, and thumb; abduction of thumb. Muscles
 arising mainly from external condyle of humerus:
 Extensors of carpus, fingers, and thumb;
 supinator.......................................
    Severe.......................................       30          20
    Moderately Severe............................       20          20
    Moderate.....................................       10          10
    Slight.......................................        0           0
5309 Group IX. Function: The forearm muscles act
 in strong grasping movements and are
 supplemented by the intrinsic muscles in
 delicate manipulative movements. Intrinsic
 muscles of hand: Thenar eminence; short flexor,
 opponens, abductor and adductor of thumb;
 hypothenar eminence; short flexor, opponens and
 abductor of little finger; 4 lumbricales; 4
 dorsal and 3 palmar interossei..................
 
Note: The hand is so compact a structure that
 isolated muscle injuries are rare, being nearly
 always complicated with injuries of bones,
 joints, tendons, etc. Rate on limitation of
 motion, minimum 10 percent.
------------------------------------------------------------------------


                            The Foot and Leg
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5310 Group X. Function: Movements of forefoot and toes;
 propulsion thrust in walking. Intrinsic muscles of the foot:
 Plantar: (1) Flexor digitorum brevis; (2) abductor hallucis;
 (3) abductor digiti minimi; (4) quadratus plantae; (5)
 lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis;
 (8) flexor digiti minimi brevis; (9) dorsal and plantar
 interossei. Other important plantar structures: Plantar
 aponeurosis, long plantar and calcaneonavicular ligament,
 tendons of posterior tibial, peroneus longus, and long flexors
 of great and little toes.......................................
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
Dorsal: (1) Extensor hallucis brevis; (2) extensor digitorum
 brevis. Other important dorsal structures: cruciate, crural,
 deltoid, and other ligaments; tendons of long extensors of toes
 and peronei muscles............................................
    Severe......................................................      20
    Moderately Severe...........................................      10
    Moderate....................................................      10
    Slight......................................................       0
 

[[Page 400]]

 
Note: Minimum rating for through-and-through wounds of the foot--
 10.
 
5311 Group XI. Function: Propulsion, plantar flexion of foot
 (1); stabilization of arch (2, 3); flexion of toes (4, 5);
 Flexion of knee (6). Posterior and lateral crural muscles, and
 muscles of the calf: (1) Triceps surae (gastrocnemius and
 soleus); (2) tibialis posterior; (3) peroneus longus; (4)
 peroneus brevis; (5) flexor hallucis longus; (6) flexor
 digitorum longus; (7) popliteus; (8) plantaris.................
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
5312 Group XII. Function: Dorsiflexion (1); extension of toes
 (2); stabilization of arch (3). Anterior muscles of the leg:
 (1) Tibialis anterior; (2) extensor digitorum longus; (3)
 extensor hallucis longus; (4) peroneus tertius.................
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
------------------------------------------------------------------------


                       The Pelvic Girdle and Thigh
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5313 Group XIII. Function: Extension of hip and flexion of knee;
 outward and inward rotation of flexed knee; acting with rectus
 femoris and sartorius (see XIV, 1, 2) synchronizing
 simultaneous flexion of hip and knee and extension of hip and
 knee by belt-over-pulley action at knee joint. Posterior thigh
 group, Hamstring complex of 2-joint muscles: (1) Biceps
 femoris; (2) semimembranosus; (3) semitendinosus...............
    Severe......................................................      40
    Moderately Severe...........................................      30
    Moderate....................................................      10
    Slight......................................................       0
5314 Group XIV. Function: Extension of knee (2, 3, 4, 5);
 simultaneous flexion of hip and flexion of knee (1); tension of
 fascia lata and iliotibial (Maissiat's) band, acting with XVII
 (1) in postural support of body (6); acting with hamstrings in
 synchronizing hip and knee (1, 2). Anterior thigh group: (1)
 Sartorius; (2) rectus femoris; (3) vastus externus; (4) vastus
 intermedius; (5) vastus internus; (6) tensor vaginae femoris...
    Severe......................................................      40
    Moderately Severe...........................................      30
    Moderate....................................................      10
    Slight......................................................       0
5315 Group XV. Function: Adduction of hip (1, 2, 3, 4); flexion
 of hip (1, 2); flexion of knee (4). Mesial thigh group: (1)
 Adductor longus; (2) adductor brevis; (3) adductor magnus; (4)
 gracilis.......................................................
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
5316 Group XVI. Function: Flexion of hip (1, 2, 3). Pelvic
 girdle group 1: (1) Psoas; (2) iliacus; (3) pectineus..........
    Severe......................................................      40
    Moderately Severe...........................................      30
    Moderate....................................................      10
    Slight......................................................       0
5317 Group XVII. Function: Extension of hip (1); abduction of
 thigh; elevation of opposite side of pelvis (2, 3); tension of
 fascia lata and iliotibial (Maissiat's) band, acting with XIV
 (6) in postural support of body steadying pelvis upon head of
 femur and condyles of femur on tibia (1). Pelvic girdle group
 2: (1) Gluteus maximus; (2) gluteus medius; (3) gluteus minimus
    Severe......................................................     *50
    Moderately Severe...........................................      40
    Moderate....................................................      20
    Slight......................................................       0
5318 Group XVIII. Function: Outward rotation of thigh and
 stabilization of hip joint. Pelvic girdle group 3: (1)
 Pyriformis; (2) gemellus (superior or inferior); (3) obturator
 (external or internal); (4) quadratus femoris..................
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
------------------------------------------------------------------------
* If bilateral, see Sec. 3.350(a)(3) of this chapter to determine
  whether the veteran may be entitled to special monthly compensation.


                           The Torso and Neck
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5319 Group XIX. Function: Support and compression of abdominal
 wall and lower thorax; flexion and lateral motions of spine;
 synergists in strong downward movements of arm (1). Muscles of
 the abdominal wall: (1) Rectus abdominis; (2) external oblique;
 (3) internal oblique; (4) transversalis; (5) quadratus lumborum
    Severe......................................................      50
    Moderately Severe...........................................      30
    Moderate....................................................      10
    Slight......................................................       0
5320 Group XX. Function: Postural support of body; extension and
 lateral movements of spine. Spinal muscles: Sacrospinalis
 (erector spinae and its prolongations in thoracic and cervical
 regions).......................................................
    Cervical and thoracic region:...............................
    Severe......................................................      40
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0
    Lumbar region:..............................................
    Severe......................................................      60
    Moderately Severe...........................................      40
    Moderate....................................................      20
    Slight......................................................       0
5321 Group XXI. Function: Respiration. Muscles of respiration:
 Thoracic muscle group..........................................
    Severe or Moderately Severe.................................      20
    Moderate....................................................      10
    Slight......................................................       0
5322 Group XXII. Function: Rotary and forward movements of the
 head; respiration; deglutition. Muscles of the front of the
 neck: (Lateral, supra-, and infrahyoid group.) (1) Trapezius I
 (clavicular insertion); (2) sternocleidomastoid; (3) the
 ``hyoid'' muscles; (4) sternothyroid; (5) digastric............
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
    Slight......................................................       0

[[Page 401]]

 
5323 Group XXIII. Function: Movements of the head; fixation of
 shoulder movements. Muscles of the side and back of the neck:
 Suboccipital; lateral vertebral and anterior vertebral muscles.
    Severe......................................................      30
    Moderately Severe...........................................      20
    Moderate....................................................      10
Slight..........................................................       0
------------------------------------------------------------------------


                              Miscellaneous
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
5324 Diaphragm, rupture of, with herniation. Rate under
 diagnostic code 7346...........................................
5325 Muscle injury, facial muscles. Evaluate functional
 impairment as seventh (facial) cranial nerve neuropathy
 (diagnostic code 8207), disfiguring scar (diagnostic code
 7800), etc. Minimum, if interfering to any extent with
 mastication--10................................................
5326 Muscle hernia, extensive. Without other injury to the
 muscle--10.....................................................
5327 Muscle, neoplasm of, malignant (excluding soft tissue
 sarcoma)--100..................................................
 
     Note: A rating of 100 percent shall continue beyond the
  cessation of any surgery, radiation treatment, antineoplastic
 chemotherapy or other therapeutic procedures. Six months after
  discontinuance of such treatment, the appropriate disability
   rating shall be determined by mandatory VA examination. Any
     change in evaluation based upon that or any subsequent
     examination shall be subject to the provisions of Sec.
 3.105(e) of this chapter. If there has been no local recurrence
     or metastasis, rate on residual impairment of function.
 
5328 Muscle, neoplasm of, benign, postoperative. Rate on
 impairment of function, i.e., limitation of motion, or scars,
 diagnostic code 7805, etc......................................
5329 Sarcoma, soft tissue (of muscle, fat, or fibrous connective
 tissue)--100...................................................
 
     Note: A rating of 100 percent shall continue beyond the
  cessation of any surgery, radiation treatment, antineoplastic
 chemotherapy or other therapeutic procedures. Six months after
  discontinuance of such treatment, the appropriate disability
   rating shall be determined by mandatory VA examination. Any
     change in evaluation based upon that or any subsequent
     examination shall be subject to the provisions of Sec.
 3.105(e) of this chapter. If there has been no local recurrence
     or metastasis, rate on residual impairment of function.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[62 FR 30239, June 3, 1997]

                       The Organs of Special Sense



Sec. 4.75  Examination of visual acuity.

    Ratings on account of visual impairments considered for service 
connection are, when practicable, to be based only on examination by 
specialists. Such special examinations should include uncorrected and 
corrected central visual acuity for distance and near, with record of 
the refraction. Snellen's test type or its equivalent will be used. 
Mydriatics should be routine, except when contraindicated. Funduscopic 
and ophthalmological findings must be recorded. The best distant vision 
obtainable after best correction by glasses will be the basis of rating, 
except in cases of keratoconus in which contact lenses are medically 
required. Also, if there exists a difference of more than 4 diopters of 
spherical correction between the two eyes, the best possible visual 
acuity of the poorer eye without glasses, or with a lens of not more 
than 4 diopters difference from that used with the better eye will be 
taken as the visual acuity of the poorer eye. When such a difference 
exists, close attention will be given to the likelihood of congenital 
origin in mere refractive error.

[40 FR 42537, Sept. 15, 1975]



Sec. 4.76  Examination of field vision.

    Measurement of the visual field will be made when there is disease 
of the optic nerve or when otherwise indicated. The usual perimetric 
methods will be employed, using a standard perimeter and 3 mm. white 
test object. At least 16 meridians 22\1/2\ degrees apart will be charted 
for each eye. (See Figure 1. For the 8 principal meridians, see table 
III.) The charts will be made a part of the report of examination. Not 
less than 2 recordings, and when possible, 3 will be made. The minimum 
limit for this function is established as a concentric central 
contraction of the visual field to 5[deg]. This type of contraction of 
the visual field reduces the visual efficiency to zero. Where available 
the examination for form field should be supplemented, when indicated, 
by the use of tangent screen or campimeter. This last test is especially 
valuable in detection of scotoma.

[43 FR 45352, Oct. 2, 1978]



Sec. 4.76a  Computation of average concentric contraction of visual 
fields.

    The extent of contraction of visual field in each eye is determined 
by recording the extent of the remaining visual fields in each of the 
eight 45 degree principal meridians. The number

[[Page 402]]

of degrees lost is determined at each meridian by subtracting the 
remaining degrees from the normal visual fields given in table III. The 
degrees lost are then added together to determine total degrees lost. 
This is subtracted from 500. The difference represents the total 
remaining degrees of visual field. The difference divided by eight 
represents the average contraction for rating purposes.

     Table III--Normal Visual Field Extent at 8 Principal Meridians
------------------------------------------------------------------------
                                                                Normal
                          Meridian                              degrees
------------------------------------------------------------------------
Temporally..................................................          85
Down temporally.............................................          85
Down........................................................          65
Down nasally................................................          50
Nasally.....................................................          60
Up nasally..................................................          55
Up..........................................................          45
Up temporally...............................................          55
                                                             -----------
 Total......................................................         500
------------------------------------------------------------------------


[[Page 403]]

[GRAPHIC] [TIFF OMITTED] TC04NO91.005

    Example of computation of concentric contraction under the schedule 
with abnormal findings taken from Figure 1.

------------------------------------------------------------------------
                            Loss                                Degrees
------------------------------------------------------------------------
Temporally..................................................          55
Down temporally.............................................          55
Down........................................................          45

[[Page 404]]

 
Down nasally................................................          30
Nasally.....................................................          40
Up nasally..................................................          35
Up..........................................................          25
Up temporally...............................................          35
                                                             -----------
 Total loss.................................................         320
------------------------------------------------------------------------
Remaining field 500[deg] minus 320[deg] = 180[deg]. 180[deg] / 8 = 22\1/
  2\[deg] average concentric contraction.


[43 FR 45352, Oct. 2, 1978]



Sec. 4.77  Examination of muscle function.

    The measurement of muscle function will be undertaken only when the 
history and findings reflect disease or injury of the extrinsic muscles 
of the eye, or of the motor nerves supplying these muscles. The 
measurement will be performed using a Goldmann Perimeter Chart as in 
Figure 2 below. The chart identifies four major quadrants, (upward, 
downward, and two lateral) plus a central field (20[deg] or less). The 
examiner will chart the areas in which diplopia exists, and such plotted 
chart will be made a part of the examination report. Muscle function is 
considered normal (20/40) when diplopia does not exist within 40[deg] in 
the lateral or downward quadrants, or within 30[deg] in the upward 
quadrant. Impairment of muscle function is to be supported in each 
instance by record of actual appropriate pathology. Diplopia which is 
only occasional or correctable is not considered a disability.
[GRAPHIC] [TIFF OMITTED] TC04NO91.006


[53 FR 30262, Aug. 11, 1988]

[[Page 405]]



Sec. 4.78  Computing aggravation.

    In determining the effect of aggravation of visual disability, even 
though the visual impairment of only one eye is service connected, 
evaluate the vision of both eyes, before and after suffering the 
aggravation, and subtract the former evaluation from the latter except 
when the bilateral vision amounts to total disability. In the event of 
subsequent increase in the disability of either eye, due to intercurrent 
disease or injury not associated with the service, the condition of the 
eyes before suffering the subsequent increase will be taken as the basis 
of compensation subject to the provisions of Sec. 3.383(a) of this 
chapter.

[29 FR 6718, May 22, 1964, as amended at 43 FR 45354, Oct. 2, 1978]



Sec. 4.79  Loss of use of one eye, having only light perception.

    Loss of use or blindness of one eye, having only light perception, 
will be held to exist when there is inability to recognize test letters 
at 1 foot (.30m.) and when further examination of the eyes reveals that 
perception of objects, hand movements or counting fingers cannot be 
accomplished at 3 feet (.91m.), lesser extents of visions, particularly 
perception of objects, hand movements, or counting fingers at distances 
less than 3 feet (.91 m.), being considered of negligible utility. With 
visual acuity 5/200 (1.5/60) or less or the visual field reduced to 
5[deg] concentric contraction, in either event in both eyes, the 
question of entitlement on account of regular aid and attendance will be 
determined on the facts in the individual case.

[43 FR 45354, Oct. 2, 1978]



Sec. 4.80  Rating of one eye.

    Combined ratings for disabilities of the same eye should not exceed 
the amount for total loss of vision of that eye unless there is an 
enucleation or a serious cosmetic defect added to the total loss of 
vision.



Sec. Sec. 4.81-4.82  [Reserved]



Sec. 4.83  Ratings at scheduled steps and distances.

    In applying the ratings for impairment of visual acuity, a person 
not having the ability to read at any one of the scheduled steps or 
distances, but reading at the next scheduled step or distance, is to be 
rated as reading at this latter step or distance. That is, a person who 
can read at 20/100 (6/30) but who cannot at 20/70 (6/21), should be 
rated as seeing at 20/100 (6/30).

[41 FR 34257, Aug. 13, 1976, as amended at 43 FR 45354, Oct. 2, 1978]



Sec. 4.83a  Impairment of central visual acuity.

    The percentage evaluation will be found from table V by intersecting 
the horizontal row appropriate for the Snellen index for one eye and the 
vertical column appropriate to the Snellen index of the other eye. For 
example, if one eye has a Snellen index of 5/200 (1.5/60) and the other 
eye has a Snellen index of 20/70 (6/21), the percentage evaluation is 
found in the third horizontal row from the bottom and the fourth 
vertical column from the left. The evaluation is 50 percent and the 
diagnostic code 6073.

[41 FR 11297, Mar. 18, 1976, as amended at 43 FR 45354, Oct. 2, 1978]



Sec. 4.84  Differences between distant and near visual acuity.

    Where there is a substantial difference between the near and distant 
corrected vision, the case should be referred to the Director, 
Compensation and Pension Service.

[40 FR 42537, Sept. 15, 1975]



Sec. 4.84a  Schedule of ratings--eye.

                           Diseases of the Eye
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
6000 Uveitis
6001 Keratitis
6002 Scleritis
6003 Iritis
6004 Cyclitis
6005 Choroiditis
6006 Retinitis
6007 Hemorrhage, intra-ocular, recent
6008 Retina, detachment of
6009 Eye, injury of, unhealed:

[[Page 406]]

 
  The above disabilities, in chronic form, are to be rated from       10
   10 percent to 100 percent for impairment of visual acuity or
   field loss, pain, rest-requirements, or episodic incapacity,
   combining an additional rating of 10 percent during
   continuance of active pathology. Minimum rating during active
   pathology....................................................
6010 Eye, tuberculosis of, active or inactive:
  Active........................................................     100
  Inactive: See Sec. Sec. 4.88b and 4.89.
6011 Retina, localized scars, atrophy, or irregularities of,
 centrally located, with irregular, duplicated enlarged or
 diminished image:
  Unilateral or bilateral.......................................      10
6012 Glaucoma, congestive or inflammatory:
  Frequent attacks of considerable duration; during continuance      100
   of actual total disability...................................
  Or, rate as iritis, diagnostic Code 6003.
6013 Glaucoma, simple, primary, noncongestive:
  Rate on impairment of visual acuity or field loss.
    Minimum rating..............................................      10
6014 New growths, malignant (eyeball only):
  Pending completion of operation or other indicated treatment..     100
  Healed; rate on residuals.
6015 New growths, benign (eyeball and adnexa, other than
 superficial)
  Rate on impaired vision, minimum..............................      10
  Healed; rate on residuals.
6016 Nystagmus, central.........................................      10
6017 Conjunctivitis, trachomatous, chronic:
  Active; rate for impairment of visual acuity; minimum rating        30
   while there is active pathology..............................
  Healed; rate on residuals, if no residuals....................       0
6018 Conjunctivitis, other, chronic:
  Active, with objective symptoms...............................      10
  Healed; rate on residuals, if no residuals....................       0
6019 Ptosis, unilateral or bilateral:
  Pupil wholly obscured.
  Rate equivalent to 5/200 (1.5/60).
  Pupile one-half or more obscured.
  Rate equivalent to 20/100 (6/30).
  With less interference with vision.
  Rate as disfigurement.
6020 Ectropion:
  Bilateral.....................................................      20
  Unilateral....................................................      10
6021 Entropion:
  Bilateral.....................................................      20
  Unilateral....................................................      10
6022 Lagophthalmos:
  Bilateral.....................................................      20
  Unilateral....................................................      10
6023 Eyebrows, loss of, complete, unilateral or bilateral.......      10
6024 Eyelashes, loss of, complete, unilateral or bilateral......      10
6025 Epiphora (lacrymal duct, interference with, from any
 cause):
  Bilateral.....................................................      20
  Unilateral....................................................      10
6026 Neuritis, optic:
  Rate underlying disease, and combine impairment of visual
   acuity or field loss.
6027 Cataract, traumatic:
  Preoperative.
  Rate on impairment of vision.
  Postoperative.
  Rate on impairment of vision and aphakia.
6028 Cataract, senile, and others:
  Preoperative.
  Rate on impairment of vision.
  Postoperative.
  Rate on impairment of vision and aphakia.
6029 Aphakia:
  Bilateral or unilateral.......................................      30
  Note: The 30 percent rating prescribed for aphakia is a
   minimum rating to be applied to the unilateral or bilateral
   condition and is not to be combined with any other rating for
   impaired vision. When only one eye is aphakic, the eye having
   poorer corrected visual acuity will be rated on the basis of
   its acuity without correction. When both eyes are aphakic,
   both will be rated on corrected vision. The corrected vision
   of one or both aphakic eyes will be taken one step worse than
   the ascertained value, however, not better than 20/70 (6/21).
   Combined ratings for disabilities of the same eye should not
   exceed the amount for total loss of vision of that eye unless
   there is an enucleation or a serious cosmetic defect added to
   the total loss of vision.
6030 Accommodation, paralysis of................................      20
6031 Dacryocystitis
  Rate as epiphora.
6032 Eyelids, loss of portion of:
  Rate as disfigurement. (See diseases of the skin.)
6033 Lens, crystalline, dislocation of:
  Rate as aphakia.
6034 Pterygium:
  Rate for loss of vision, if any.
6035 Keratoconus: To be evaluated on impairment of corrected
 visual acuity using contact lenses.
  Note: When contact lenses are medically required for
   keratoconus, either unilateral or bilateral, the minimum
   rating will be 30 percent.
------------------------------------------------------------------------


[[Page 407]]


                                Table IV--Table for Rating Bilateral Blindness or Blindness Combined With Hearing Loss With Dictator's Code and 38 CFR Citations
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       Vision other eye                                                       Plus service-connected Hearing loss
                                 ---------------------------------------------------------------------------------------------------------------------------------------------------------------
         Vision one eye                                                        No light
                                   5/200 (1.5/60) or   Light perception      perception or    Total deafness one     10% or 20% at     30% at least one    40% at least one     60% or more at
                                         less                only           anatomical loss           ear          least one ear SC         ear SC              ear SC         least one ear SC
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
5/200 (1.5/60) or less..........  L \1\ Code LB-1 38  L+\1/2\ \1\ Code    M Code MB-2 a or b  Add \1/2\ step      No additional SMC.  Add a full step     Add a full step     O Code OB-1 38 CFR
                                   CFR 3.350(b)(2).    LB-2 38 CFR         38 CFR              Code PB-1 38 CFR                        Code PB-3 38 CFR    Code PB-3 38 CFR    3.350(e)(1)(iii)
                                                       3.350(f)(2)(i).     3.350(f)(2)(ii).    3.350(f)(2)(iv).                        3.350(f)(2)(vi).    3.350(f)(2)(vi).
Light perception only...........  ..................  M Code MB-1 a 38    M+\1/2\ Code MB-3   O Code OB-2 38 CFR  Add \1/2\ step      Add a full step     O Code OB-2 38 CFR  O Code OB-1 38 CFR
                                                       CFR                 a or b 38 CFR       3.350(e)(1)(iv).    Code PB-2 38 CFR    Code PB-3 38 CFR    3.350(e)(1)(iv).    3.350(e)(1)(iii)
                                                       3.350(c)(1)((iv).   3.350(f)(iii).                          3.350(f)(2)(v).     3.350(f)(2)(iv).
No light perception or            ..................  ..................  N Code NB-1 a-b or  O Code OB-2 38 CFR  Add \1/2\ step      Add full step Code  O Code OB-2 38 CFR  O Code OB-1 38 CFR
 anatomical loss.                                                          c 38 CFR            3.350(e)(1)(iv).    Code PB-2 38 CFR    PB-3 38 CFR         3.350(e)(1)(iv).    3.350(e)(1)(iii)
                                                                           3.350(d)(4).                            3.350(f)(2)(v).     3.350(f)(2)(vi).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ With need for aid and attendance qualifies for Subpar. m. code MB-1, b; 38 CFR 3.350(c)(1)(v).
 
Note. (1) Any of the additional SMC payable under Dictator's Codes PB-1, PB-2, or PB-3 is not to exceed the rate payable under Subpar. O. (2) If in addition to any of the above the veteran has
  the service-connected loss or loss of use of an extremity, additional SMC is payable, not to exceed the rate payable under Subpar. O. See Dictator's Codes PB-4, PB-5, PB-6, and 38 CFR
  3.350(f)(2)(vii) (A), (B), (C).


[[Page 408]]


(Authority: 38 U.S.C. 1115)

                   Impairment of Central Visual Acuity
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
6061 Anatomical loss both eyes..................................     \5\
                                                                     100
6062 Blindness in both eyes having only light perception........     \5\
                                                                     100
  Anatomical loss of 1 eye:
6063 In the other eye 5/200 (1.5/60)............................     \5\
                                                                     100
6064 In the other eye 10/200 (3/60).............................  \6\ 90
6064 In the other eye 15/200 (4.5/60)...........................  \6\ 80
6064 In the other eye 20/200 (6/60).............................  \6\ 70
6065 In the other eye 20/100 (6/30).............................  \6\ 60
6065 In the other eye 20/70 (6/21)..............................  \6\ 60
6065 In the other eye 20/50 (6/15)..............................  \6\ 50
6066 In the other eye 20/40 (6/12)..............................  \6\ 40
  Blindness in 1 eye, having only light perception:
6067 In the other eye 5/200 (1.5/60)............................     \5\
                                                                     100
6068 In the other eye 10/200 (3/60).............................  \5\ 90
6068 In the other eye 15/200 (4.5/60)...........................  \5\ 80
6068 In the other eye 20/200 (6/60).............................  \5\ 70
6069 In the other eye 20/100 (6/30).............................  \5\ 60
6069 In the other eye 20/70 (6/21)..............................  \5\ 50
6069 In the other eye 20/50 (6/15)..............................  \5\ 40
6070 In the other eye 20/40 (6/12)..............................  \5\ 30
  Vision in 1 eye 5/200 (1.5/60):
6071 In the other eye 5/200 (1.5/60)............................     \5\
                                                                     100
6072 In the other eye 10/200 (3/60).............................      90
6072 In the other eye 15/200 (4.5/60)...........................      80
6072 In the other eye 20/200 (6/60).............................      70
6073 In the other eye 20/100 (6/30).............................      60
6073 In the other eye 20/70 (6/21)..............................      50
6073 In the other eye 20/50 (6/15)..............................      40
6074 In the other eye 20/40 (6/12)..............................      30
  Vision in 1 eye 10/200 (3/60):
6075 In the other eye 10/200 (3/60).............................      90
6075 In the other eye 15/200 (4.5/60)...........................      80
6075 In the other eye 20/200 (6/60).............................      70
6076 In the other eye 20/100 (6/30).............................      60
6076 In the other eye 20/70 (6/21)..............................      50
6076 In the other eye 20/50 (6/15)..............................      40
6077 In the other eye 20/40 (6/12)..............................      30
  Vision in 1 eye 15/200 (4.5/60):
6075 In the other eye 15/200 (4.5/60)...........................      80
6075 In the other eye 20/200 (6/60).............................      70
6076 In the other eye 20/100 (6/30).............................      60
6076 In the other eye 20/70 (6/21)..............................      40
6076 In the other eye 20/50 (6/15)..............................      30
6077 In the other eye 20/40 (6/12)..............................      20
  Vision in 1 eye 20/200 (6/60):
6075 In the other eye 20/200 (6/60).............................      70
6076 In the other eye 20/100 (6/30).............................      60
6076 In the other eye 20/70 (6/21)..............................      40
6076 In the other eye 20/50 (6/15)..............................      30
6077 In the other eye 20/40 (6/12)..............................      20
  Vision in 1 eye 20/100 (6/30):
6078 In the other eye 20/100 (6/30).............................      50
6078 In the other eye 20/70 (6/21)..............................      30
6078 In the other eye 20/50 (6/15)..............................      20
6079 In the other eye 20/40 (6/12)..............................      10
  Vision in 1 eye 20/70 (6/21):
6078 In the other eye 20/70 (6/21)..............................      30
6078 In the other eye 20/50 (6/15)..............................      20
6079 In the other eye 20/40 (6/12)..............................      10
  Vision in 1 eye 20/50 (6/15):
6078 In the other eye 20/50 (6/15)..............................      10
6079 In the other eye 20/40 (6/12)..............................      10
  Vision in 1 eye 20/40 (6/12):
  In the other eye 20/40 (6/12)                                        0
------------------------------------------------------------------------
\5\ Also entitled to special monthly compensation.
\6\ Add 10% if artificial eye cannot be worn; also entitled to special
  monthly compensation.


                              Table V--Ratings for Central Visual Acuity Impairment
                                             [With Diagnostic Code]
----------------------------------------------------------------------------------------------------------------
                                                    Vision in other eye
         -------------------------------------------------------------------------------------------------------
 Vision                                                                                                Light
 in one                                                                                             perception
   eye    20/40 (6/  20/50 (6/  20/70 (6/  20/100 (6/ 20/200 (6/   15/200   10/200 (3/   5/200         only/
             12)        15)        21)        30)        60)      (4.5/60)     60)      (1.5/60)    anatomical
                                                                                                       loss
----------------------------------------------------------------------------------------------------------------
20/40             0
(6/12)
---------
20/50            10         10
(6/15)       (6079)     (6078)
---------
20/70            10         20         30
(6/21)       (6079)     (6078)     (6078)
---------
20/100           10         20         30         50
(6/30)       (6079)     (6078)     (6078)     (6078)
---------
20/200           20         30         40         60         70
(6/60)       (6077)     (6076)     (6076)     (6076)     (6075)
---------
15/200           20         30         40         60         70         80
(4.5/60)     (6077)     (6076)     (6076)     (6076)     (6075)     (6075)
---------
10/200           30         40         50         60         70         80         90
(3/60)       (6077)     (6076)     (6076)     (6076)     (6075)     (6075)     (6075)
---------
5/200            30         40         50         60         70         80         90    \5\ 100
(1.5/60)     (6074)     (6073)     (6073)     (6073)     (6072)     (6072)     (6072)     (6071)
---------

[[Page 409]]

 
Light        \5\ 30     \5\ 40     \5\ 50     \5\ 60     \5\ 70     \5\ 80     \5\ 90    \5\ 100         \5\ 100
 percept
 ion
 only
             (6070)     (6069)     (6069)     (6069)     (6068)     (6068)     (6068)     (6067)          (6062)
---------
Anatomic     \6\ 40     \6\ 50     \6\ 60     \6\ 60     \6\ 70     \6\ 80     \6\ 90    \5\ 100         \5\ 100
 al loss
 of one
 eye
             (6066)     (6065)     (6065)     (6065)     (6064)     (6064)     (6064)     (6063)          (6061)
----------------------------------------------------------------------------------------------------------------
\5\ Also entitled to special monthly compensation.
\6\Add 10 percent if artificial eye cannot be worn; also entitled to special monthly compensation.


                 Ratings for Impairment of Field Vision
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
6080 Field vision, impairment of:
  Homonymous hemianopsia........................................      30
Field, visual, loss of temporal half:
  Bilateral.....................................................      30
  Unilateral....................................................      10
  Or rate as 20/70 (6/21).
Field, visual, loss of nasal half:
  Bilateral.....................................................      20
  Unilateral....................................................      10
  Or rate as 20/50 (6/15).
Field, visual, concentric contraction of:
 To 5[deg]:
  Bilateral.....................................................     100
  Unilateral....................................................      30
  Or rate as 5/200 (1.5/60).
 To 15[deg] but not to 5[deg]:
  Bilateral.....................................................      70
  Unilateral....................................................      20
  Or rate as 20/200 (6/60).
 To 30[deg] but not to 15[deg]:
  Bilateral.....................................................      50
  Unilateral....................................................      10
  Or rate as 20/100 (6/30).
 To 45[deg] but not to 30[deg]:
  Bilateral.....................................................      30
  Unilateral....................................................      10
  Or rate as 20/70 (6/21):
 To 60[deg] but not to 45[deg]:
  Bilateral.....................................................      20
  Unilateral....................................................      10
  Or rate as 20/50 (6/15).
  Note (1): Correct diagnosis reflecting disease or injury
   should be cited..............................................
  Note (2): Demonstrable pathology commensurate with the
   functional loss will be required. The concentric contraction
   ratings require contraction within the stated degrees,
   temporally; the nasal contraction may be less. The
   alternative ratings are to be employed when there is ratable
   defect of visual acuity, or a different impairment of the
   visual field in the other eye. Concentric contraction
   resulting from demonstrable pathology to 5 degrees or less
   will be considered on a parity with reduction of central
   visual acuity to 5/200 (1.5/60) or less for all purposes
   including entitlement under Sec. 3.350(b)(2) of this
   chapter; not however, for the purpose of Sec. 3.350(a) of
   this chapter. Entitlement on account of blindness requiring
   regular aid and attendance, Sec. 3.350(c) of this chapter,
   will continue to be determined on the facts in the individual
   case.........................................................
6081 Scotoma, pathological, unilateral:
  Large or centrally located, minimum...........................      10
  Note: Rate on loss of central visual acuity or impairment of
   field vision. Do not combine with any other rating for visual
   impairment.
------------------------------------------------------------------------


                Ratings for Impairment of Muscle Function
                     [6090 Diplopia (double vision)]
------------------------------------------------------------------------
                                                              Equivalent
                     Degree of diplopia                         visual
                                                                acuity
------------------------------------------------------------------------
(a) Central 20[deg].........................................      5/200
(b) 21[deg] to 30[deg]:
(1) Down....................................................     15/200
(2) Lateral.................................................     20/100
(3) Up......................................................      20/70
(c) 31[deg] to 40[deg]:
(1) Down....................................................     20/200
(2) Lateral.................................................      20/70
(3) Up......................................................      20/40
 
  Note: (1) Correct diagnosis reflecting disease or injury
   should be cited..........................................

[[Page 410]]

 
  Note: (2) The above ratings will be applied to only one
   eye. Ratings will not be applied for both diplopia and
   decreased visual acuity or field of vision in the same
   eye. When diplopia is present and there is also ratable
   impairment of visual acuity or field of vision of both
   eyes the above diplopia ratings will be applied to the
   poorer eye while the better eye is rated according to the
   best corrected visual acuity or visual field.............
  Note: (3) When the diplopia field extends beyond more than
   one quadrant or more than one range of degrees, the
   evaluation for diplopia will be based on the quadrant and
   degree range that provide the highest evaluation.........
  Note: (4) When diplopia exists in two individual and
   separate areas of the same eye, the equivalent visual
   acuity will be taken one step worse, but no worse than 5/
   200......................................................
 
6091 Symblepharon...........................................
Rate as limited muscle function, diagnostic code 6090.......
6092 Diplopia, due to limited muscle function...............
Rate as diagnostic code 6090................................
------------------------------------------------------------------------


[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 
FR 42537, Sept. 15, 1975; 41 FR 11297, Mar. 18, 1976; 43 FR 45354, Oct. 
2, 1978; 51 FR 6411, Feb. 24, 1986; 53 FR 30264, Aug. 11, 1988; 53 FR 
50955, Dec. 19, 1988; 57 FR 24364, June 9, 1992]

                      Impairment of Auditory Acuity



Sec. 4.85  Evaluation of hearing impairment.

    (a) An examination for hearing impairment for VA purposes must be 
conducted by a state-licensed audiologist and must include a controlled 
speech discrimination test (Maryland CNC) and a puretone audiometry 
test. Examinations will be conducted without the use of hearing aids.
    (b) Table VI, ``Numeric Designation of Hearing Impairment Based on 
Puretone Threshold Average and Speech Discrimination,'' is used to 
determine a Roman numeral designation (I through XI) for hearing 
impairment based on a combination of the percent of speech 
discrimination (horizontal rows) and the puretone threshold average 
(vertical columns). The Roman numeral designation is located at the 
point where the percentage of speech discrimination and puretone 
threshold average intersect.
    (c) Table VIa, ``Numeric Designation of Hearing Impairment Based 
Only on Puretone Threshold Average,'' is used to determine a Roman 
numeral designation (I through XI) for hearing impairment based only on 
the puretone threshold average. Table VIa will be used when the examiner 
certifies that use of the speech discrimination test is not appropriate 
because of language difficulties, inconsistent speech discrimination 
scores, etc., or when indicated under the provisions of Sec. 4.86.
    (d) ``Puretone threshold average,'' as used in Tables VI and VIa, is 
the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, 
divided by four. This average is used in all cases (including those in 
Sec. 4.86) to determine the Roman numeral designation for hearing 
impairment from Table VI or VIa.
    (e) Table VII, ``Percentage Evaluations for Hearing Impairment,'' is 
used to determine the percentage evaluation by combining the Roman 
numeral designations for hearing impairment of each ear. The horizontal 
rows represent the ear having the better hearing and the vertical 
columns the ear having the poorer hearing. The percentage evaluation is 
located at the point where the row and column intersect.
    (f) If impaired hearing is service-connected in only one ear, in 
order to determine the percentage evaluation from Table VII, the non-
service-connected ear will be assigned a Roman Numeral designation for 
hearing impairment of I, subject to the provisions of Sec. 3.383 of 
this chapter.
    (g) When evaluating any claim for impaired hearing, refer to Sec. 
3.350 of this chapter to determine whether the veteran may be entitled 
to special monthly compensation due either to deafness, or to deafness 
in combination with other specified disabilities.
    (h) Numeric tables VI, VIA*, and VII.

[[Page 411]]

[GRAPHIC] [TIFF OMITTED] TR11MY99.005


[[Page 412]]


[GRAPHIC] [TIFF OMITTED] TR11MY99.006


[64 FR 25206, May 11, 1999]



Sec. 4.86  Exceptional patterns of hearing impairment.

    (a) When the puretone threshold at each of the four specified 
frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, 
the rating specialist will determine the Roman numeral designation for 
hearing impairment from either Table VI or Table VIa, whichever results 
in the higher numeral. Each ear will be evaluated separately.
    (b) When the puretone threshold is 30 decibels or less at 1000 
Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will 
determine the Roman numeral designation for hearing impairment from 
either Table VI or Table VIa, whichever results in the higher numeral. 
That numeral will then be elevated to the next higher

[[Page 413]]

Roman numeral. Each ear will be evaluated separately.

(Authority: 38 U.S.C. 1155)

[64 FR 25209, May 11, 1999]



Sec. 4.87  Schedule of ratings--ear.

                           Diseases of the Ear
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
6200 Chronic suppurative otitis media, mastoiditis, or
 cholesteatoma (or any combination):
  During suppuration, or with aural polyps......................      10
  Note: Evaluate hearing impairment, and complications such as
   labyrinthitis, tinnitus, facial nerve paralysis, or bone loss
   of skull, separately.
6201 Chronic nonsuppurative otitis media with effusion (serous
 otitis media):
  Rate hearing impairment
6202 Otosclerosis:
  Rate hearing impairment
6204 Peripheral vestibular disorders:
  Dizziness and occasional staggering...........................      30
  Occasional dizziness..........................................      10
  Note: Objective findings supporting the diagnosis of
   vestibular disequilibrium are required before a compensable
   evaluation can be assigned under this code. Hearing
   impairment or suppuration shall be separately rated and
   combined.
6205 Meniere's syndrome (endolymphatic hydrops):
  Hearing impairment with attacks of vertigo and cerebellar gait     100
   occurring more than once weekly, with or without tinnitus....
  Hearing impairment with attacks of vertigo and cerebellar gait      60
   occurring from one to four times a month, with or without
   tinnitus.....................................................
  Hearing impairment with vertigo less than once a month, with        30
   or without tinnitus..........................................
  Note: Evaluate Meniere's syndrome either under these criteria
   or by separately evaluating vertigo (as a peripheral
   vestibular disorder), hearing impairment, and tinnitus,
   whichever method results in a higher overall evaluation. But
   do not combine an evaluation for hearing impairment,
   tinnitus, or vertigo with an evaluation under diagnostic code
   6205.
6207 Loss of auricle:
  Complete loss of both.........................................      50
  Complete loss of one..........................................      30
  Deformity of one, with loss of one-third or more of the             10
   substance....................................................
6208 Malignant neoplasm of the ear (other than skin only).......     100
  Note: A rating of 100 percent shall continue beyond the
   cessation of any surgical, radiation treatment,
   antineoplastic chemotherapy or other therapeutic procedure.
   Six months after discontinuance of such treatment, the
   appropriate disability rating shall be determined by
   mandatory VA examination. Any change in evaluation based on
   that or any subsequent examination shall be subject to the
   provisions of Sec. 3.105(e) of this chapter. If there has
   been no local recurrence or metastasis, rate on residuals.
6209 Benign neoplasms of the ear (other than skin only):
  Rate on impairment of function.
6210 Chronic otitis externa:
  Swelling, dry and scaly or serous discharge, and itching            10
   requiring frequent and prolonged treatment...................
6211 Tympanic membrane, perforation of..........................       0
6260 Tinnitus, recurrent........................................      10
  Note (1): A separate evaluation for tinnitus may be combined
   with an evaluation under diagnostic codes 6100, 6200, 6204,
   or other diagnostic code, except when tinnitus supports an
   evaluation under one of those diagnostic codes.
  Note (2): Assign only a single evaluation for recurrent
   tinnitus, whether the sound is perceived in one ear, both
   ears, or in the head.
  Note (3): Do not evaluate objective tinnitus (in which the
   sound is audible to other people and has a definable cause
   that may or may not be pathologic) under this diagnostic
   code, but evaluate it as part of any underlying condition
   causing it.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[64 FR 25210, May 11, 1999, as amended at 68 FR 25823, May 14, 2003]



Sec. 4.87a  Schedule of ratings--other sense organs.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
6275 Sense of smell, complete loss..............................      10
6276 Sense of taste, complete loss..............................      10
  Note: Evaluation will be assigned under diagnostic codes 6275
   or 6276 only if there is an anatomical or pathological basis
   for the condition.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[64 FR 25210, May 11, 1999]

   Infectious Diseases, Immune Disorders and Nutritional Deficiencies



Sec. 4.88  [Reserved]



Sec. 4.88a  Chronic fatigue syndrome.

    (a) For VA purposes, the diagnosis of chronic fatigue syndrome 
requires:
    (1) new onset of debilitating fatigue severe enough to reduce daily 
activity to less than 50 percent of the usual level for at least six 
months; and
    (2) the exclusion, by history, physical examination, and laboratory 
tests, of all other clinical conditions that may produce similar 
symptoms; and
    (3) six or more of the following:
    (i) acute onset of the condition,
    (ii) low grade fever,
    (iii) nonexudative pharyngitis,

[[Page 414]]

    (iv) palpable or tender cervical or axillary lymph nodes,
    (v) generalized muscle aches or weakness,
    (vi) fatigue lasting 24 hours or longer after exercise,
    (vii) headaches (of a type, severity, or pattern that is different 
from headaches in the pre-morbid state),
    (viii) migratory joint pains,
    (ix) neuropsychologic symptoms,
    (x) sleep disturbance.
    (b) [Reserved]

[59 FR 60902, Nov. 29, 1994]



Sec. 4.88b  Schedule of ratings--infectious diseases, immune disorders 
and nutritional deficiencies.

------------------------------------------------------------------------
                                                                Rating
------------------------------------------------------------------------
6300 Cholera, Asiatic:
    As active disease, and for 3 months convalescence......         100
    Thereafter rate residuals such as renal necrosis under the
     appropriate system
6301 Visceral Leishmaniasis:
    During treatment for active disease....................          100
 
    Note: A 100 percent evaluation shall continue beyond the cessation
     of treatment for active disease. Six months after discontinuance of
     such treatment, the appropriate disability rating shall be
     determined by mandatory VA examination. Any change in evaluation
     based upon that or any subsequent examination shall be subject to
     the provisions of Sec. 3.105(e) of this chapter. Rate residuals
     such as liver damage or lymphadenopathy under the appropriate
     system.
 
 6302 Leprosy (Hansen's Disease):
    As active disease......................................          100
 
    Note: A 100 percent evaluation shall continue beyond the date that
     an examining physician has determined that this has become
     inactive. Six months after the date of inactivity, the appropriate
     disability rating shall be determined by mandatory VA examination.
     Any change in evaluation based upon that or any subsequent
     examination shall be subject to the provisions of Sec. 3.105(e)
     of this chapter. Rate residuals such as skin lesions or peripheral
     neuropathy under the appropriate system.
 
6304 Malaria:
    As active disease......................................          100
 
    Note: The diagnosis of malaria depends on the identification of the
     malarial parasites in blood smears. If the veteran served in an
     endemic area and presents signs and symptoms compatible with
     malaria, the diagnosis may be based on clinical grounds alone.
     Relapses must be confirmed by the presence of malarial parasites in
     blood smears.
    Thereafter rate residuals such as liver or spleen damage under the
     appropriate system
 
6305 Lymphatic Filariasis:
    As active disease......................................         100
    Thereafter rate residuals such as epididymitis or lymphangitis under
     the appropriate system
6306 Bartonellosis:
    As active disease, and for 3 months convalescence......         100
    Thereafter rate residuals such as skin lesions under the appropriate
     system
6307 Plague:
    As active disease......................................         100
    Thereafter rate residuals such as lymphadenopathy under the
     appropriate system
6308 Relapsing Fever:
    As active disease......................................         100
    Thereafter rate residuals such as liver or spleen damage or central
     nervous system involvement under the appropriate system
6309 Rheumatic fever:
    As active disease......................................         100
    Thereafter rate residuals such as heart damage under the appropriate
     system
6310 Syphilis, and other treponemal infections:
    Rate the complications of nervous system, vascular system, eyes or
     ears. (See DC 7004, syphilitic heart disease, DC 8013,
     cerebrospinal syphilis, DC 8014, meningovascular syphilis, DC 8015,
     tabes dorsalis, and DC 9301, dementia associated with central
     nervous system syphilis)
6311 Tuberculosis, miliary:
    As active disease......................................          100
    Inactive: See Sec. Sec. 4.88c and 4.89.
6313 Avitaminosis:
    Marked mental changes, moist dermatitis, inability to            100
     retain adequate nourishment, exhaustion, and cachexia.
    With all of the symptoms listed below, plus mental                60
     symptoms and impaired bodily vigor....................
    With stomatitis, diarrhea, and symmetrical dermatitis..           40
    With stomatitis, or achlorhydria, or diarrhea..........           20
    Confirmed diagnosis with nonspecific symptoms such as:            10
     decreased appetite, weight loss, abdominal discomfort,
     weakness, inability to concentrate and irritability...
6314 Beriberi:
    As active disease:
    With congestive heart failure, anasarca, or Wernicke-            100
     Korsakoff syndrome....................................

[[Page 415]]

 
    With cardiomegaly, or; with peripheral neuropathy with            60
     footdrop or atrophy of thigh or calf muscles..........
    With peripheral neuropathy with absent knee or ankle              30
     jerks and loss of sensation, or; with symptoms such as
     weakness, fatigue, anorexia, dizziness, heaviness and
     stiffness of legs, headache or sleep disturbance......
    Thereafter rate residuals under the appropriate body
     system.
6315 Pellagra:
    Marked mental changes, moist dermatitis, inability to            100
     retain adequate nourishment, exhaustion, and cachexia.
    With all of the symptoms listed below, plus mental                60
     symptoms and impaired bodily vigor....................
    With stomatitis, diarrhea, and symmetrical dermatitis..           40
    With stomatitis, or achlorhydria, or diarrhea..........           20
    Confirmed diagnosis with nonspecific symptoms such as:            10
     decreased appetite, weight loss, abdominal discomfort,
     weakness, inability to concentrate and irritability...
6316 Brucellosis:
    As active disease......................................         100
    Thereafter rate residuals such as liver or spleen damage or
     meningitis under the appropriate system
6317 Typhus, scrub:
    As active disease, and for 3 months convalescence......         100
    Thereafter rate residuals such as spleen damage or skin conditions
     under the appropriate system
6318 Melioidosis:
    As active disease......................................         100
    Thereafter rate residuals such as arthritis, lung lesions or
     meningitis under the appropriate system
6319 Lyme Disease:
    As active disease......................................         100
    Thereafter rate residuals such as arthritis under the appropriate
     system
6320 Parasitic diseases otherwise not specified:
    As active disease......................................         100
    Thereafter rate residuals such as spleen or liver damage under the
     appropriate system
6350 Lupus erythematosus, systemic (disseminated):
    Not to be combined with ratings under DC 7809 Acute,             100
     with frequent exacerbations, producing severe
     impairment of health..................................
    Exacerbations lasting a week or more, 2 or 3 times per            60
     year..................................................
    Exacerbations once or twice a year or symptomatic                 10
     during the past 2 years...............................
 
    Note: Evaluate this condition either by combining the evaluations
     for residuals under the appropriate system, or by evaluating DC
     6350, whichever method results in a higher evaluation.
 
6351 HIV-Related Illness:
    AIDS with recurrent opportunistic infections or with             100
     secondary diseases afflicting multiple body systems;
     HIV-related illness with debility and progressive
     weight loss, without remission, or few or brief
     remissions............................................
    Refractory constitutional symptoms, diarrhea, and                 60
     pathological weight loss, or; minimum rating following
     development of AIDS-related opportunistic infection or
     neoplasm..............................................
    Recurrent constitutional symptoms, intermittent                   30
     diarrhea, and on approved medication(s), or; minimum
     rating with T4 cell count less than 200, or Hairy Cell
     Leukoplakia, or Oral Candidiasis......................
    Following development of definite medical symptoms, T4            10
     cell of 200 or more and less than 500, and on approved
     medication(s), or; with evidence of depression or
     memory loss with employment limitations...............
    Asymptomatic, following initial diagnosis of HIV                   0
     infection, with or without lymphadenopathy or
     decreased T4 cell count...............................
 
     Note (1): The term ``approved medication(s)'' includes medications
     prescribed as part of a research protocol at an accredited medical
     institution.
    Note (2): Psychiatric or central nervous system manifestations,
     opportunistic infections, and neoplasms may be rated separately
     under appropriate codes if higher overall evaluation results, but
     not in combination with percentages otherwise assignable above.
6354 Chronic Fatigue Syndrome (CFS):
    Debilitating fatigue, cognitive impairments (such as inability to
     concentrate, forgetfulness, confusion), or a combination of other
     signs and symptoms:
    Which are nearly constant and so severe as to restrict           100
     routine daily activities almost completely and which
     may occasionally preclude self-care...................
    Which are nearly constant and restrict routine daily              60
     activities to less than 50 percent of the pre-illness
     level, or; which wax and wane, resulting in periods of
     incapacitation of at least six weeks total duration
     per year..............................................
    Which are nearly constant and restrict routine daily              40
     activities to 50 to 75 percent of the pre-illness
     level, or; which wax and wane, resulting in periods of
     incapacitation of at least four but less than six
     weeks total duration per year.........................
    Which are nearly constant and restrict routine daily              20
     activities by less than 25 percent of the pre-illness
     level, or; which wax and wane, resulting in periods of
     incapacitation of at least two but less than four
     weeks total duration per year.........................
    Which wax and wane but result in periods of                      10
     incapacitation of at least one but less than two weeks
     total duration per year, or; symptoms controlled by
     continuous medication.................................
    Note: For the purpose of evaluating this disability, the condition
     will be considered incapacitating only while it requires bed rest
     and treatment by a physician.
------------------------------------------------------------------------


[61 FR 39875, July 31, 1996]

[[Page 416]]



Sec. 4.88c  Ratings for inactive nonpulmonary tuberculosis initially 
entitled after August 19, 1968.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
For 1 year after date of inactivity, following active                100
 tuberculosis...................................................
Thereafter: Rate residuals under the specific body system or
 systems affected.
Following the total rating for the 1 year period after date of
 inactivity, the schedular evaluation for residuals of
 nonpulmonary tuberculosis, i.e., ankylosis, surgical removal of
 a part, etc., will be assigned under the appropriate diagnostic
 code for the residual preceded by the diagnostic code for
 tuberculosis of the body part affected. For example,
 tuberculosis of the hip joint with residual ankylosis would be
 coded 5001-5250. Where there are existing residuals of
 pulmonary and nonpulmonary conditions, the evaluations for
 residual separate functional impairment may be combined.
Where there are existing pulmonary and nonpulmonary conditions,
 the total rating for the 1 year, after attainment of
 inactivity, may not be applied to both conditions during the
 same period. However, the total rating during the 1-year period
 for the pulmonary or for the nonpulmonary condition will be
 utilized, combined with evaluation for residuals of the
 condition not covered by the 1-year total evaluation, so as to
 allow any additional benefit provided during such period.
------------------------------------------------------------------------


[34 FR 5062, Mar. 11, 1969. Redesignated at 59 FR 60902, Nov. 29, 1994]



Sec. 4.89  Ratings for inactive nonpulmonary tuberculosis in effect on 
August 19, 1968.

    Public Law 90-493 repealed section 356 of title 38, United States 
Code which provided graduated ratings for inactive tuberculosis. The 
repealed section, however, still applies to the case of any veteran who 
on August 19, 1968, was receiving or entitled to receive compensation 
for tuberculosis. The use of the protective provisions of Pub. L. 90-493 
should be mentioned in the discussion portion of all ratings in which 
these provisions are applied. For use in rating cases in which the 
protective provisions of Pub. L. 90-493 apply, the former evaluations 
are retained in this section.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
For 2 years after date of inactivity, following active               100
 tuberculosis, which was clinically identified during service or
 subsequently...................................................
Thereafter, for 4 years, or in any event, to 6 years after date       50
 of inactivity..................................................
Thereafter, for 5 years, or to 11 years after date of inactivity      30
Thereafter, in the absence of a schedular compensable permanent        0
 residual.......................................................
Following the total rating for the 2-year period after date of
 inactivity, the schedular evaluation for residuals of
 nonpulmonary tuberculosis, i.e., ankylosis, surgical removal of
 a part, etc., if in excess of 50 percent or 30 percent will be
 assigned under the appropriate diagnostic code for the specific
 residual preceded by the diagnostic code for tuberculosis of
 the body part affected. For example, tuberculosis of the
 hipjoint with residual ankylosis would be coded 5001-5250.
The graduated ratings for nonpulmonary tuberculosis will not be
 combined with residuals of nonpulmonary tuberculosis unless the
 graduated rating and the rating for residual disability cover
 separate functional losses, e.g., graduated ratings for
 tuberculosis of the kidney and residuals of tuberculosis of the
 spine. Where there are existing pulmonary and nonpulmonary
 conditions, the graduated evaluation for the pulmonary, or for
 the nonpulmonary, condition will be utilized, combined with
 evaluations for residuals of the condition not covered by the
 graduated evaluation utilized, so as to provide the higher
 evaluation over such period.
The ending dates of all graduated ratings of nonpulmonary
 tuberculosis will be controlled by the date of attainment of
 inactivity.
These ratings are applicable only to veterans with nonpulmonary
 tuberculosis active on or after October 10, 1949.
------------------------------------------------------------------------


[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 43 
FR 45361, Oct. 2, 1978]

                         The Respiratory System



Sec. 4.96  Special provisions regarding evaluation of respiratory 
conditions.

    (a) Rating coexisting respiratory conditions. Ratings under 
diagnostic codes 6600 through 6817 and 6822 through 6847 will not be 
combined with each other. Where there is lung or pleural involvement, 
ratings under diagnostic codes 6819 and 6820 will not be combined with 
each other or with diagnostic codes 6600 through 6817 or 6822 through 
6847. A single rating will be assigned under the diagnostic code which 
reflects the predominant disability with elevation to the next higher 
evaluation where the severity of the overall disability warrants such 
elevation. However, in cases protected by the provisions of Pub. L. 90-
493, the graduated ratings of 50 and 30 percent for inactive 
tuberculosis will not be elevated.
    (b) Rating ``protected'' tuberculosis cases. Public Law 90-493 
repealed section 356 of title 38, United States Code which had provided 
graduated ratings for inactive tuberculosis. The repealed

[[Page 417]]

section, however, still applies to the case of any veteran who on August 
19, 1968, was receiving or entitled to receive compensation for 
tuberculosis. The use of the protective provisions of Pub. L. 90-493 
should be mentioned in the discussion portion of all ratings in which 
these provisions are applied. For application in rating cases in which 
the protective provisions of Pub. L. 90-493 apply the former evaluations 
pertaining to pulmonary tuberculosis are retained in Sec. 4.97.
    (c) Special monthly compensation. When evaluating any claim 
involving complete organic aphonia, refer to Sec. 3.350 of this chapter 
to determine whether the veteran may be entitled to special monthly 
compensation. Footnotes in the schedule indicate conditions which 
potentially establish entitlement to special monthly compensation; 
however, there are other conditions in this section which under certain 
circumstances also establish entitlement to special monthly 
compensation.

(Authority: 38 U.S.C. 1155)

[34 FR 5062, Mar. 11, 1969, as amended at 61 FR 46727, Sept. 5, 1996]



Sec. 4.97  Schedule of ratings--respiratory system.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
                     DISEASES OF THE NOSE AND THROAT
------------------------------------------------------------------------
6502 Septum, nasal, deviation of:
    Traumatic only,
        With 50-percent obstruction of the nasal passage on           10
         both sides or complete obstruction on one side........
6504 Nose, loss of part of, or scars:
    Exposing both nasal passages...............................       30
    Loss of part of one ala, or other obvious disfigurement....       10
 
Note: Or evaluate as DC 7800, scars, disfiguring, head, face,
 or neck.
 
6510 Sinusitis, pansinusitis, chronic.
6511 Sinusitis, ethmoid, chronic.
6512 Sinusitis, frontal, chronic.
6513 Sinusitis, maxillary, chronic.
6514 Sinusitis, sphenoid, chronic.
    General Rating Formula for Sinusitis (DC's 6510 through
     6514):
        Following radical surgery with chronic osteomyelitis,         50
         or; near constant sinusitis characterized by
         headaches, pain and tenderness of affected sinus, and
         purulent discharge or crusting after repeated
         surgeries.............................................
        Three or more incapacitating episodes per year of             30
         sinusitis requiring prolonged (lasting four to six
         weeks) antibiotic treatment, or; more than six non-
         incapacitating episodes per year of sinusitis
         characterized by headaches, pain, and purulent
         discharge or crusting.................................
        One or two incapacitating episodes per year of                10
         sinusitis requiring prolonged (lasting four to six
         weeks) antibiotic treatment, or; three to six non-
         incapacitating episodes per year of sinusitis
         characterized by headaches, pain, and purulent
         discharge or crusting.................................
        Detected by X-ray only.................................        0
 
    Note: An incapacitating episode of sinusitis means one that
     requires bed rest and treatment by a physician.
 
6515 Laryngitis, tuberculous, active or inactive.
    Rate under Sec. Sec. 4.88c or 4.89, whichever is
     appropriate.
6516 Laryngitis, chronic:
    Hoarseness, with thickening or nodules of cords, polyps,          30
     submucous infiltration, or pre-malignant changes on biopsy
    Hoarseness, with inflammation of cords or mucous membrane..       10
6518 Laryngectomy, total.......................................  \1\ 100
    Rate the residuals of partial laryngectomy as laryngitis
     (DC 6516), aphonia (DC 6519), or stenosis of larynx (DC
     6520).
6519 Aphonia, complete organic:
    Constant inability to communicate by speech................  \1\ 100
    Constant inability to speak above a whisper................       60
 
    Note: Evaluate incomplete aphonia as laryngitis, chronic
     (DC 6516).
 
6520 Larynx, stenosis of, including residuals of laryngeal
 trauma (unilateral or bilateral):
    Forced expiratory volume in one second (FEV-1) less than 40      100
     percent of predicted value, with Flow-Volume Loop
     compatible with upper airway obstruction, or; permanent
     tracheostomy..............................................
    FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop       60
     compatible with upper airway obstruction..................
    FEV-1 of 56- to 70-percent predicted, with Flow-Volume Loop       30
     compatible with upper airway obstruction..................
    FEV-1 of 71- to 80-percent predicted, with Flow-Volume Loop       10
     compatible with upper airway obstruction..................
 
    Note: Or evaluate as aphonia (DC 6519).
 
6521 Pharynx, injuries to:

[[Page 418]]

 
    Stricture or obstruction of pharynx or nasopharynx, or;           50
     absence of soft palate secondary to trauma, chemical burn,
     or granulomatous disease, or; paralysis of soft palate
     with swallowing difficulty (nasal regurgitation) and
     speech impairment.........................................
6522 Allergic or vasomotor rhinitis:
    With polyps................................................       30
    Without polyps, but with greater than 50-percent                  10
     obstruction of nasal passage on both sides or complete
     obstruction on one side...................................
6523 Bacterial rhinitis:
    Rhinoscleroma..............................................       50
    With permanent hypertrophy of turbinates and with greater         10
     than 50-percent obstruction of nasal passage on both sides
     or complete obstruction on one side.......................
6524 Granulomatous rhinitis:
    Wegener's granulomatosis, lethal midline granuloma.........      100
    Other types of granulomatous infection.....................       20
----------------------------------------------------------------
                   DISEASES OF THE TRACHEA AND BRONCHI
------------------------------------------------------------------------
6600 Bronchitis, chronic:
    FEV-1 less than 40 percent of predicted value, or; the           100
     ratio of Forced Expiratory Volume in one second to Forced
     Vital Capacity (FEV-1/FVC) less than 40 percent, or;
     Diffusion Capacity of the Lung for Carbon Monoxide by the
     Single Breath Method (DLCO (SB)) less than 40-percent
     predicted, or; maximum exercise capacity less than 15 ml/
     kg/min oxygen consumption (with cardiac or respiratory
     limitation), or; cor pulmonale (right heart failure), or;
     right ventricular hypertrophy, or; pulmonary hypertension
     (shown by Echo or cardiac catheterization), or; episode(s)
     of acute respiratory failure, or; requires outpatient
     oxygen therapy............................................
    FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40         60
     to 55 percent, or; DLCO (SB) of 40- to 55-percent
     predicted, or; maximum oxygen consumption of 15 to 20 ml/
     kg/min (with cardiorespiratory limit).....................
    FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56         30
     to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..
    FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71         10
     to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..
6601 Bronchiectasis:
    With incapacitating episodes of infection of at least six        100
     weeks total duration per year.............................
    With incapacitating episodes of infection of four to six          60
     weeks total duration per year, or; near constant findings
     of cough with purulent sputum associated with anorexia,
     weight loss, and frank hemoptysis and requiring antibiotic
     usage almost continuously.................................
    With incapacitating episodes of infection of two to four          30
     weeks total duration per year, or; daily productive cough
     with sputum that is at times purulent or blood-tinged and
     that requires prolonged (lasting four to six weeks)
     antibiotic usage more than twice a year...................
    Intermittent productive cough with acute infection                10
     requiring a course of antibiotics at least twice a year...
    Or rate according to pulmonary impairment as for chronic
     bronchitis (DC 6600).
 
    Note: An incapacitating episode is one that requires
     bedrest and treatment by a physician.
 
6602 Asthma, bronchial:
    FEV-1 less than 40-percent predicted, or; FEV-1/FVC less         100
     than 40 percent, or; more than one attack per week with
     episodes of respiratory failure, or; requires daily use of
     systemic (oral or parenteral) high dose corticosteroids or
     immuno-suppressive medications............................
    FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40         60
     to 55 percent, or; at least monthly visits to a physician
     for required care of exacerbations, or; intermittent (at
     least three per year) courses of systemic (oral or
     parenteral) corticosteroids...............................
    FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56         30
     to 70 percent, or; daily inhalational or oral
     bronchodilator therapy, or; inhalational anti-inflammatory
     medication................................................
    FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71         10
     to 80 percent, or; intermittent inhalational or oral
     bronchodilator therapy....................................
 
    Note: In the absence of clinical findings of asthma at time
     of examination, a verified history of asthmatic attacks
     must be of record.
 
6603 Emphysema, pulmonary:
    FEV-1 less than 40 percent of predicted value, or; the           100
     ratio of Forced Expiratory Volume in one second to Forced
     Vital Capacity (FEV-1/FVC) less than 40 percent, or;
     Diffusion Capacity of the Lung for Carbon Monoxide by the
     Single Breath Method (DLCO (SB)) less than 40-percent
     predicted, or; maximum exercise capacity less than 15 ml/
     kg/min oxygen consumption (with cardiac or respiratory
     limitation), or; cor pulmonale (right heart failure), or;
     right ventricular hypertrophy, or; pulmonary hypertension
     (shown by Echo or cardiac catheterization), or; episode(s)
     of acute respiratory failure, or; requires outpatient
     oxygen therapy............................................
    FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40         60
     to 55 percent, or; DLCO (SB) of 40- to 55-percent
     predicted, or; maximum oxygen consumption of 15 to 20 ml/
     kg/min (with cardiorespiratory limit).....................
    FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56         30
     to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..
    FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71         10
     to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..
6604 Chronic obstructive pulmonary disease:

[[Page 419]]

 
    FEV-1 less than 40 percent of predicted value, or; the           100
     ratio of Forced Expiratory Volume in one second to Forced
     Vital Capacity (FEV-1/FVC) less than 40 percent, or;
     Diffusion Capacity of the Lung for Carbon Monoxide by the
     Single Breath Method (DLCO (SB)) less than 40-percent
     predicted, or; maximum exercise capacity less than 15 ml/
     kg/min oxygen consumption (with cardiac or respiratory
     limitation), or; cor pulmonale (right heart failure), or;
     right ventricular hypertrophy, or; pulmonary hypertension
     (shown by Echo or cardiac catheterization), or; episode(s)
     of acute respiratory failure, or; requires outpatient
     oxygen therapy............................................
    FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40         60
     to 55 percent, or; DLCO (SB) of 40- to 55-percent
     predicted, or; maximum oxygen consumption of 15 to 20 ml/
     kg/min (with cardiorespiratory limit).....................
    FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56         30
     to 70 percent, or; DLCO (SB) 56- to 65-percent predicted..
    FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71         10
     to 80 percent, or; DLCO (SB) 66- to 80-percent predicted..
----------------------------------------------------------------
             DISEASES OF THE LUNGS AND PLEURA--TUBERCULOSIS
     Ratings for Pulmonary Tuberculosis Entitled on August 19, 1968
------------------------------------------------------------------------
6701 Tuberculosis, pulmonary, chronic, far advanced, active....      100
6702 Tuberculosis, pulmonary, chronic, moderately advanced,          100
 active........................................................
6703 Tuberculosis, pulmonary, chronic, minimal, active.........      100
6704 Tuberculosis, pulmonary, chronic, active, advancement           100
 unspecified...................................................
6721 Tuberculosis, pulmonary, chronic, far advanced, inactive..
6722 Tuberculosis, pulmonary, chronic, moderately advanced,
 inactive......................................................
6723 Tuberculosis, pulmonary, chronic, minimal, inactive.......
6724 Tuberculosis, pulmonary, chronic, inactive, advancement
 unspecified...................................................
    General Rating Formula for Inactive Pulmonary Tuberculosis:      100
     For two years after date of inactivity, following active
     tuberculosis, which was clinically identified during
     service or subsequently...................................
    Thereafter for four years, or in any event, to six years          50
     after date of inactivity..................................
    Thereafter, for five years, or to eleven years after date         30
     of inactivity.............................................
    Following far advanced lesions diagnosed at any time while        30
     the disease process was active, minimum...................
    Following moderately advanced lesions, provided there is          20
     continued disability, emphysema, dyspnea on exertion,
     impairment of health, etc.................................
    Otherwise..................................................        0
 
Note (1): The 100-percent rating under codes 6701 through 6724
 is not subject to a requirement of precedent hospital
 treatment. It will be reduced to 50 percent for failure to
 submit to examination or to follow prescribed treatment upon
 report to that effect from the medical authorities. When a
 veteran is placed on the 100-percent rating for inactive
 tuberculosis, the medical authorities will be appropriately
 notified of the fact, and of the necessity, as given in
 footnote 1 to 38 U.S.C. 1156 (and formerly in 38 U.S.C. 356,
 which has been repealed by Public Law 90-493), to notify the
 Adjudication Division in the event of failure to submit to
 examination or to follow treatment.
Note (2): The graduated 50-percent and 30-percent ratings and
 the permanent 30 percent and 20 percent ratings for inactive
 pulmonary tuberculosis are not to be combined with ratings for
 other respiratory disabilities. Following thoracoplasty the
 rating will be for removal of ribs combined with the rating
 for collapsed lung. Resection of the ribs incident to
 thoracoplasty will be rated as removal.
----------------------------------------------------------------
 Ratings for Pulmonary Tuberculosis Initially Evaluated After August 19,
                                  1968
------------------------------------------------------------------------
6730 Tuberculosis, pulmonary, chronic, active..................      100
 
    Note: Active pulmonary tuberculosis will be considered
     permanently and totally disabling for non-service-
     connected pension purposes in the following circumstances:
        (a) Associated with active tuberculosis involving other
         than the respiratory system.
        (b) With severe associated symptoms or with extensive
         cavity formation.
        (c) Reactivated cases, generally.
        (d) With advancement of lesions on successive
         examinations or while under treatment.
        (e) Without retrogression of lesions or other evidence
         of material improvement at the end of six months
         hospitalization or without change of diagnosis from
         ``active'' at the end of 12 months hospitalization.
         Material improvement means lessening or absence of
         clinical symptoms, and X-ray findings of a stationary
         or retrogressive lesion.
 
6731 Tuberculosis, pulmonary, chronic, inactive:
    Depending on the specific findings, rate residuals as
     interstitial lung disease, restrictive lung disease, or,
     when obstructive lung disease is the major residual, as
     chronic bronchitis (DC 6600). Rate thoracoplasty as
     removal of ribs under DC 5297.
 
    Note: A mandatory examination will be requested immediately
     following notification that active tuberculosis evaluated
     under DC 6730 has become inactive. Any change in
     evaluation will be carried out under the provisions of
     Sec. 3.105(e).
 
6732 Pleurisy, tuberculous, active or inactive:
    Rate under Sec. Sec. 4.88c or 4.89, whichever is
     appropriate.
----------------------------------------------------------------
                         NONTUBERCULOUS DISEASES
------------------------------------------------------------------------
6817 Pulmonary Vascular Disease:
    Primary pulmonary hypertension, or; chronic pulmonary            100
     thromboembolism with evidence of pulmonary hypertension,
     right ventricular hypertrophy, or cor pulmonale, or;
     pulmonary hypertension secondary to other obstructive
     disease of pulmonary arteries or veins with evidence of
     right ventricular hypertrophy or cor pulmonale............

[[Page 420]]

 
    Chronic pulmonary thromboembolism requiring anticoagulant         60
     therapy, or; following inferior vena cava surgery without
     evidence of pulmonary hypertension or right ventricular
     dysfunction...............................................
    Symptomatic, following resolution of acute pulmonary              30
     embolism..................................................
    Asymptomatic, following resolution of pulmonary                    0
     thromboembolism...........................................
 
    Note: Evaluate other residuals following pulmonary embolism
     under the most appropriate diagnostic code, such as
     chronic bronchitis (DC 6600) or chronic pleural effusion
     or fibrosis (DC 6844), but do not combine that evaluation
     with any of the above evaluations.
 
    6819 Neoplasms, malignant, any specified part of                 100
     respiratory system exclusive of skin growths..............
 
    Note: A rating of 100 percent shall continue beyond the
     cessation of any surgical, X-ray, antineoplastic
     chemotherapy or other therapeutic procedure. Six months
     after discontinuance of such treatment, the appropriate
     disability rating shall be determined by mandatory VA
     examination. Any change in evaluation based upon that or
     any subsequent examination shall be subject to the
     provisions of Sec. 3.105(e) of this chapter. If there
     has been no local recurrence or metastasis, rate on
     residuals.
 
6820 Neoplasms, benign, any specified part of respiratory
 system. Evaluate using an appropriate respiratory analogy.
----------------------------------------------------------------
                    Bacterial Infections of the Lung
------------------------------------------------------------------------
6822 Actinomycosis.
6823 Nocardiosis.
6824 Chronic lung abscess.
    General Rating Formula for Bacterial Infections of the Lung
     (diagnostic codes 6822 through 6824):
        Active infection with systemic symptoms such as fever,       100
         night sweats, weight loss, or hemoptysis..............
    Depending on the specific findings, rate residuals as
     interstitial lung disease, restrictive lung disease, or,
     when obstructive lung disease is the major residual, as
     chronic bronchitis (DC 6600).
----------------------------------------------------------------
                        Interstitial Lung Disease
------------------------------------------------------------------------
6825 Diffuse interstitial fibrosis (interstitial pneumonitis,
 fibrosing alveolitis).
6826 Desquamative interstitial pneumonitis.
6827 Pulmonary alveolar proteinosis.
6828 Eosinophilic granuloma of lung.
6829 Drug-induced pulmonary pneumonitis and fibrosis.
6830 Radiation-induced pulmonary pneumonitis and fibrosis.
6831 Hypersensitivity pneumonitis (extrinsic allergic
 alveolitis).
6832 Pneumoconiosis (silicosis, anthracosis, etc.).
6833 Asbestosis.
    General Rating Formula for Interstitial Lung Disease
     (diagnostic codes 6825 through 6833):
        Forced Vital Capacity (FVC) less than 50-percent             100
         predicted, or; Diffusion Capacity of the Lung for
         Carbon Monoxide by the Single Breath Method (DLCO
         (SB)) less than 40-percent predicted, or; maximum
         exercise capacity less than 15 ml/kg/min oxygen
         consumption with cardiorespiratory limitation, or; cor
         pulmonale or pulmonary hypertension, or; requires
         outpatient oxygen therapy.............................
        FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40-      60
          to 55-percent predicted, or; maximum exercise
         capacity of 15 to 20 ml/kg/min oxygen consumption with
         cardiorespiratory limitation..........................
        FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56-      30
          to 65-percent predicted..............................
        FVC of 75- to 80-percent predicted, or; DLCO (SB) of 66-      10
          to 80-percent predicted..............................
----------------------------------------------------------------
                          Mycotic Lung Disease
------------------------------------------------------------------------
6834 Histoplasmosis of lung.
6835 Coccidioidomycosis.
6836 Blastomycosis.
6837 Cryptococcosis.
6838 Aspergillosis.
6839 Mucormycosis.
    General Rating Formula for Mycotic Lung Disease (diagnostic
     codes 6834 through 6839):
        Chronic pulmonary mycosis with persistent fever, weight      100
         loss, night sweats, or massive hemoptysis.............
        Chronic pulmonary mycosis requiring suppressive therapy       50
         with no more than minimal symptoms such as occasional
         minor hemoptysis or productive cough..................
        Chronic pulmonary mycosis with minimal symptoms such as       30
         occasional minor hemoptysis or productive cough.......
        Healed and inactive mycotic lesions, asymptomatic......        0
 
    Note: Coccidioidomycosis has an incubation period up to 21
     days, and the disseminated phase is ordinarily manifest
     within six months of the primary phase. However, there are
     instances of dissemination delayed up to many years after
     the initial infection which may have been unrecognized.
     Accordingly, when service connection is under
     consideration in the absence of record or other evidence
     of the disease in service, service in southwestern United
     States where the disease is endemic and absence of
     prolonged residence in this locality before or after
     service will be the deciding factor.
----------------------------------------------------------------
                        Restrictive Lung Disease
------------------------------------------------------------------------
6840 Diaphragm paralysis or paresis.
6841 Spinal cord injury with respiratory insufficiency.
6842 Kyphoscoliosis, pectus excavatum, pectus carinatum.

[[Page 421]]

 
6843 Traumatic chest wall defect, pneumothorax, hernia, etc.
6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).
6845 Chronic pleural effusion or fibrosis.
    General Rating Formula for Restrictive Lung Disease
     (diagnostic codes 6840 through 6845):
        FEV-1 less than 40 percent of predicted value, or; the       100
         ratio of Forced Expiratory Volume in one second to
         Forced Vital Capacity (FEV-1/FVC) less than 40
         percent, or; Diffusion Capacity of the Lung for Carbon
         Monoxide by the Single Breath Method (DLCO (SB)) less
         than 40-percent predicted, or; maximum exercise
         capacity less than 15 ml/kg/min oxygen consumption
         (with cardiac or respiratory limitation), or; cor
         pulmonale (right heart failure), or; right ventricular
         hypertrophy, or; pulmonary hypertension (shown by Echo
         or cardiac catheterization), or; episode(s) of acute
         respiratory failure, or; requires outpatient oxygen
         therapy...............................................
        FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of        60
         40 to 55 percent, or; DLCO (SB) of 40- to 55-percent
         predicted, or; maximum oxygen consumption of 15 to 20
         ml/kg/min (with cardiorespiratory limit)..............
        FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of        30
         56 to 70 percent, or; DLCO (SB) 56- to 65-percent
         predicted.............................................
        FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of        10
         71 to 80 percent, or; DLCO (SB) 66- to 80-percent
         predicted.............................................
    Or rate primary disorder.
 
    Note (1): A 100-percent rating shall be assigned for
     pleurisy with empyema, with or without pleurocutaneous
     fistula, until resolved.
 
    Note (2): Following episodes of total spontaneous
     pneumothorax, a rating of 100 percent shall be assigned as
     of the date of hospital admission and shall continue for
     three months from the first day of the month after
     hospital discharge.
 
    Note (3): Gunshot wounds of the pleural cavity with bullet
     or missile retained in lung, pain or discomfort on
     exertion, or with scattered rales or some limitation of
     excursion of diaphragm or of lower chest expansion shall
     be rated at least 20-percent disabling. Disabling injuries
     of shoulder girdle muscles (Groups I to IV) shall be
     separately rated and combined with ratings for respiratory
     involvement. Involvement of Muscle Group XXI (DC 5321),
     however, will not be separately rated.
 
6846 Sarcoidosis:
    Cor pulmonale, or; cardiac involvement with congestive           100
     heart failure, or; progressive pulmonary disease with
     fever, night sweats, and weight loss despite treatment....
    Pulmonary involvement requiring systemic high dose                60
     (therapeutic) corticosteroids for control.................
    Pulmonary involvement with persistent symptoms requiring          30
     chronic low dose (maintenance) or intermittent
     corticosteroids...........................................
    Chronic hilar adenopathy or stable lung infiltrates without        0
     symptoms or physiologic impairment........................
    Or rate active disease or residuals as chronic bronchitis
     (DC 6600) and extra-pulmonary involvement under specific
     body system involved......................................
6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed):
    Chronic respiratory failure with carbon dioxide retention        100
     or cor pulmonale, or; requires tracheostomy...............
    Requires use of breathing assistance device such as               50
     continuous airway pressure (CPAP) machine.................
    Persistent day-time hypersomnolence........................       30
    Asymptomatic but with documented sleep disorder breathing..       0
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
  3.350 of this chapter.


[61 FR 46728, Sept. 5, 1996]

                        The Cardiovascular System



Sec. Sec. 4.100-4.103  [Reserved]



Sec. 4.104  Schedule of ratings--cardiovascular system.

                          Diseases of the Heart
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
Note (1): Evaluate cor pulmonale, which is a form of secondary
 heart disease, as part of the pulmonary condition that causes
 it.
Note (2): One MET (metabolic equivalent) is the energy cost of
 standing quietly at rest and represents an oxygen uptake of 3.5
 milliliters per kilogram of body weight per minute. When the
 level of METs at which dyspnea, fatigue, angina, dizziness, or
 syncope develops is required for evaluation, and a laboratory
 determination of METs by exercise testing cannot be done for
 medical reasons, an estimation by a medical examiner of the
 level of activity (expressed in METs and supported by specific
 examples, such as slow stair climbing or shoveling snow) that
 results in dyspnea, fatigue, angina, dizziness, or syncope may
 be used.
7000 Valvular heart disease (including rheumatic heart disease):

[[Page 422]]

 
    During active infection with valvular heart damage and for       100
     three months following cessation of therapy for the active
     infection..................................................
    Thereafter, with valvular heart disease (documented by
     findings on physical examination and either echocardiogram,
     Doppler echocardiogram, or cardiac catheterization)
     resulting in:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electro-cardiogram, echocardiogram, or X-ray...............
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7001 Endocarditis:
    For three months following cessation of therapy for active       100
     infection with cardiac involvement.........................
    Thereafter, with endocarditis (documented by findings on
     physical examination and either echocardiogram, Doppler
     echocardiogram, or cardiac catheterization) resulting in:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7002 Pericarditis:
    For three months following cessation of therapy for active       100
     infection with cardiac involvement.........................
    Thereafter, with documented pericarditis resulting in:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electro-cardiogram, echocardiogram, or X-ray...............
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7003 Pericardial adhesions:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electro-cardiogram, echocardiogram, or X-ray...............
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7004 Syphilitic heart disease:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
 

[[Page 423]]

 
Note: Evaluate syphilitic aortic aneurysms under DC 7110 (aortic
 aneurysm).
 
7005 Arteriosclerotic heart disease (Coronary artery disease):
    With documented coronary artery disease resulting in:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
 
Note: If nonservice-connected arteriosclerotic heart disease is
 superimposed on service-connected valvular or other non-
 arteriosclerotic heart disease, request a medical opinion as to
 which condition is causing the current signs and symptoms.
 
7006 Myocardial infarction:
    During and for three months following myocardial infarction,     100
     documented by laboratory tests.............................
    Thereafter:
 
    With history of documented myocardial infarction, resulting
     in:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7007 Hypertensive heart disease:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7008 Hyperthyroid heart disease:
    Include as part of the overall evaluation for
     hyperthyroidism under DC 7900. However, when atrial
     fibrillation is present, hyperthyroidism may be evaluated
     either under DC 7900 or under DC 7010 (supraventricular
     arrhythmia), whichever results in a higher evaluation.
7010 Supraventricular arrhythmias:
    Paroxysmal atrial fibrillation or other supraventricular          30
     tachycardia, with more than four episodes per year
     documented by ECG or Holter monitor........................
    Permanent atrial fibrillation (lone atrial fibrillation),         10
     or; one to four episodes per year of paroxysmal atrial
     fibrillation or other supraventricular tachycardia
     documented by ECG or Holter monitor........................
7011 Ventricular arrhythmias (sustained):
    For indefinite period from date of hospital admission for        100
     initial evaluation and medical therapy for a sustained
     ventricular arrhythmia, or; for indefinite period from date
     of hospital admission for ventricular aneurysmectomy, or;
     with an automatic implantable Cardioverter-Defibrillator
     (AICD) in place............................................
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................

[[Page 424]]

 
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
 
Note: A rating of 100 percent shall be assigned from the date of
  hospital admission for initial evaluation and medical therapy
    for a sustained ventricular arrhythmia or for ventricular
 aneurysmectomy. Six months following discharge, the appropriate
      disability rating shall be determined by mandatory VA
  examination. Any change in evaluation based upon that or any
  subsequent examination shall be subject to the provisions of
                Sec. 3.105(e) of this chapter.
 
7015 Atrioventricular block:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication or a pacemaker required..........
 
Note: Unusual cases of arrhythmia such as atrioventricular block
 associated with a supraventricular arrhythmia or pathological
 bradycardia should be submitted to the Director, Compensation
 and Pension Service. Simple delayed P-R conduction time, in the
 absence of other evidence of cardiac disease, is not a
 disability.
 
7016 Heart valve replacement (prosthesis):
    For indefinite period following date of hospital admission       100
     for valve replacement......................................
    Thereafter:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
 
Note: A rating of 100 percent shall be assigned as of the date
 of hospital admission for valve replacement. Six months
 following discharge, the appropriate disability rating shall be
 determined by mandatory VA examination. Any change in
 evaluation based upon that or any subsequent examination shall
 be subject to the provisions of Sec. 3.105(e) of this
 chapter.
 
7017 Coronary bypass surgery:
    For three months following hospital admission for surgery...     100
    Thereafter:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload greater than 7 METs but not greater than 10 METs         10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
7018 Implantable cardiac pacemakers:
    For two months following hospital admission for implantation     100
     or reimplantation..........................................
    Thereafter:
    Evaluate as supraventricular arrhythmias (DC 7010),               10
     ventricular arrhythmias (DC 7011), or atrioventricular
     block (DC 7015). Minimum...................................
 
Note: Evaluate implantable Cardioverter-Defibrillators (AICD's)
 under DC 7011.
 
7019 Cardiac transplantation:
    For an indefinite period from date of hospital admission for     100
     cardiac transplantation....................................
    Thereafter:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
        Minimum.................................................      30
 

[[Page 425]]

 
Note: A rating of 100 percent shall be assigned as of the date
 of hospital admission for cardiac transplantation. One year
 following discharge, the appropriate disability rating shall be
 determined by mandatory VA examination. Any change in
 evaluation based upon that or any subsequent examination shall
 be subject to the provisions of Sec. 3.105(e) of this
 chapter.
 
7020 Cardiomyopathy:
    Chronic congestive heart failure, or; workload of 3 METs or      100
     less results in dyspnea, fatigue, angina, dizziness, or
     syncope, or; left ventricular dysfunction with an ejection
     fraction of less than 30 percent...........................
    More than one episode of acute congestive heart failure in        60
     the past year, or; workload of greater than 3 METs but not
     greater than 5 METs results in dyspnea, fatigue, angina,
     dizziness, or syncope, or; left ventricular dysfunction
     with an ejection fraction of 30 to 50 percent..............
    Workload of greater than 5 METs but not greater than 7 METs       30
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; evidence of cardiac hypertrophy or dilatation on
     electrocardiogram, echocardiogram, or X-ray................
    Workload of greater than 7 METs but not greater than 10 METs      10
     results in dyspnea, fatigue, angina, dizziness, or syncope,
     or; continuous medication required.........................
Diseases of the Arteries and Veins
7101 Hypertensive vascular disease (hypertension and isolated
 systolic hypertension):
    Diastolic pressure predominantly 130 or more................      60
    Diastolic pressure predominantly 120 or more................      40
    Diastolic pressure predominantly 110 or more, or; systolic        20
     pressure predominantly 200 or more.........................
    Diastolic pressure predominantly 100 or more, or; systolic        10
     pressure predominantly 160 or more, or; minimum evaluation
     for an individual with a history of diastolic pressure
     predominantly 100 or more who requires continuous
     medication for control.....................................
 
Note (1): Hypertension or isolated systolic hypertension must be
 confirmed by readings taken two or more times on at least three
 different days. For purposes of this section, the term
 hypertension means that the diastolic blood pressure is
 predominantly 90mm. or greater, and isolated systolic
 hypertension means that the systolic blood pressure is
 predominantly 160mm. or greater with a diastolic blood pressure
 of less than 90mm.
Note (2): Evaluate hypertension due to aortic insufficiency or
 hyperthyroidism, which is usually the isolated systolic type,
 as part of the condition causing it rather than by a separate
 evaluation.
 
7110 Aortic aneurysm:
    If five centimeters or larger in diameter, or; if                100
     symptomatic, or; for indefinite period from date of
     hospital admission for surgical correction (including any
     type of graft insertion)...................................
    Precluding exertion.........................................      60
    Evaluate residuals of surgical correction according to organ
     systems affected.
 
Note: A rating of 100 percent shall be assigned as of the date
 of admission for surgical correction. Six months following
 discharge, the appropriate disability rating shall be
 determined by mandatory VA examination. Any change in
 evaluation based upon that or any subsequent examination shall
 be subject to the provisions of Sec. 3.105(e) of this
 chapter.
 
7111 Aneurysm, any large artery:
    If symptomatic, or; for indefinite period from date of           100
     hospital admission for surgical correction.................
    Following surgery:
    Ischemic limb pain at rest, and; either deep ischemic ulcers     100
     or ankle/brachial index of 0.4 or less.....................
    Claudication on walking less than 25 yards on a level grade       60
     at 2 miles per hour, and; persistent coldness of the
     extremity, one or more deep ischemic ulcers, or ankle/
     brachial index of 0.5 or less..............................
    Claudication on walking between 25 and 100 yards on a level       40
     grade at 2 miles per hour, and; trophic changes (thin skin,
     absence of hair, dystrophic nails) or ankle/brachial index
     of 0.7 or less.............................................
    Claudication on walking more than 100 yards, and; diminished      20
     peripheral pulses or ankle/brachial index of 0.9 or less...
Note (1): The ankle/brachial index is the ratio of the systolic
 blood pressure at the ankle (determined by Doppler study)
 divided by the simultaneous brachial artery systolic blood
 pressure. The normal index is 1.0 or greater.
Note (2): These evaluations are for involvement of a single
 extremity. If more than one extremity is affected, evaluate
 each extremity separately and combine (under Sec. 4.25),
 using the bilateral factor, if applicable.
Note (3): A rating of 100 percent shall be assigned as of the
 date of hospital admission for surgical correction. Six months
 following discharge, the appropriate disability rating shall be
 determined by mandatory VA examination. Any change in
 evaluation based upon that or any subsequent examination shall
 be subject to the provisions of Sec. 3.105(e) of this
 chapter.
 
7112 Aneurysm, any small artery:
    Asymptomatic................................................       0
 
Note: If symptomatic, evaluate according to body system
 affected. Following surgery, evaluate residuals under the body
 system affected.
 
7113 Arteriovenous fistula, traumatic:
    With high output heart failure..............................     100
    Without heart failure but with enlarged heart, wide pulse         60
     pressure, and tachycardia..................................
    Without cardiac involvement but with edema, stasis
     dermatitis, and either ulceration or cellulitis:
        Lower extremity.........................................      50
        Upper extremity.........................................      40
    With edema or stasis dermatitis:
        Lower extremity.........................................      30
        Upper extremity.........................................      20
7114 Arteriosclerosis obliterans:
    Ischemic limb pain at rest, and; either deep ischemic ulcers     100
     or ankle/brachial index of 0.4 or less.....................

[[Page 426]]

 
    Claudication on walking less than 25 yards on a level grade       60
     at 2 miles per hour, and; either persistent coldness of the
     extremity or ankle/brachial index of 0.5 or less...........
    Claudication on walking between 25 and 100 yards on a level       40
     grade at 2 miles per hour, and; trophic changes (thin skin,
     absence of hair, dystrophic nails) or ankle/brachial index
     of 0.7 or less.............................................
    Claudication on walking more than 100 yards, and; diminished      20
     peripheral pulses or ankle/brachial index of 0.9 or less...
 
Note (1): The ankle/brachial index is the ratio of the systolic
 blood pressure at the ankle (determined by Doppler study)
 divided by the simultaneous brachial artery systolic blood
 pressure. The normal index is 1.0 or greater.
Note (2): Evaluate residuals of aortic and large arterial bypass
 surgery or arterial graft as arteriosclerosis obliterans.
Note (3): These evaluations are for involvement of a single
 extremity. If more than one extremity is affected, evaluate
 each extremity separately and combine (under Sec. 4.25),
 using the bilateral factor (Sec. 4.26), if applicable.
 
7115 Thrombo-angiitis obliterans (Buerger's Disease):
    Ischemic limb pain at rest, and; either deep ischemic ulcers     100
     or ankle/brachial index of 0.4 or less.....................
    Claudication on walking less than 25 yards on a level grade       60
     at 2 miles per hour, and; either persistent coldness of the
     extremity or ankle/brachial index of 0.5 or less...........
    Claudication on walking between 25 and 100 yards on a level       40
     grade at 2 miles per hour, and; trophic changes (thin skin,
     absence of hair, dystrophic nails) or ankle/brachial index
     of 0.7 or less.............................................
    Claudication on walking more than 100 yards, and; diminished      20
     peripheral pulses or ankle/brachial index of 0.9 or less...
 
Note (1): The ankle/brachial index is the ratio of the systolic
 blood pressure at the ankle (determined by Doppler study)
 divided by the simultaneous brachial artery systolic blood
 pressure. The normal index is 1.0 or greater.
Note (2): These evaluations are for involvement of a single
 extremity. If more than one extremity is affected, evaluate
 each extremity separately and combine (under Sec. 4.25),
 using the bilateral factor (Sec. 4.26), if applicable.
 
7117 Raynaud's syndrome:
    With two or more digital ulcers plus autoamputation of one       100
     or more digits and history of characteristic attacks.......
    With two or more digital ulcers and history of                    60
     characteristic attacks.....................................
    Characteristic attacks occurring at least daily.............      40
    Characteristic attacks occurring four to six times a week...      20
    Characteristic attacks occurring one to three times a week..      10
Note: For purposes of this section, characteristic attacks
 consist of sequential color changes of the digits of one or
 more extremities lasting minutes to hours, sometimes with pain
 and paresthesias, and precipitated by exposure to cold or by
 emotional upsets. These evaluations are for the disease as a
 whole, regardless of the number of extremities involved or
 whether the nose and ears are involved.
 
7118 Angioneurotic edema:
    Attacks without laryngeal involvement lasting one to seven        40
     days or longer and occurring more than eight times a year,
     or; attacks with laryngeal involvement of any duration
     occurring more than twice a year...........................
    Attacks without laryngeal involvement lasting one to seven        20
     days and occurring five to eight times a year, or; attacks
     with laryngeal involvement of any duration occurring once
     or twice a year............................................
    Attacks without laryngeal involvement lasting one to seven        10
     days and occurring two to four times a year................
7119 Erythromelalgia:
    Characteristic attacks that occur more than once a day, last     100
     an average of more than two hours each, respond poorly to
     treatment, and that restrict most routine daily activities.
    Characteristic attacks that occur more than once a day, last      60
     an average of more than two hours each, and respond poorly
     to treatment, but that do not restrict most routine daily
     activities.................................................
    Characteristic attacks that occur daily or more often but         30
     that respond to treatment..................................
    Characteristic attacks that occur less than daily but at          10
     least three times a week and that respond to treatment.....
 
Note: For purposes of this section, a characteristic attack of
 erythromelalgia consists of burning pain in the hands, feet, or
 both, usually bilateral and symmetrical, with increased skin
 temperature and redness, occurring at warm ambient
 temperatures. These evaluations are for the disease as a whole,
 regardless of the number of extremities involved.
 
7120 Varicose veins:
    With the following findings attributed to the effects of         100
     varicose veins: Massive board-like edema with constant pain
     at rest....................................................
    Persistent edema or subcutaneous induration, stasis               60
     pigmentation or eczema, and persistent ulceration..........
    Persistent edema and stasis pigmentation or eczema, with or       40
     without intermittent ulceration............................
    Persistent edema, incompletely relieved by elevation of           20
     extremity, with or without beginning stasis pigmentation or
     eczema.....................................................
    Intermittent edema of extremity or aching and fatigue in leg      10
     after prolonged standing or walking, with symptoms relieved
     by elevation of extremity or compression hosiery...........
    Asymptomatic palpable or visible varicose veins.............       0
 

[[Page 427]]

 
Note: These evaluations are for involvement of a single
 extremity. If more than one extremity is involved, evaluate
 each extremity separately and combine (under Sec. 4.25),
 using the bilateral factor (Sec. 4.26), if applicable.
 
7121 Post-phlebitic syndrome of any etiology:
    With the following findings attributed to venous disease:
        Massive board-like edema with constant pain at rest.....     100
        Persistent edema or subcutaneous induration, stasis           60
         pigmentation or eczema, and persistent ulceration......
        Persistent edema and stasis pigmentation or eczema, with      40
         or without intermittent ulceration.....................
        Persistent edema, incompletely relieved by elevation of       20
         extremity, with or without beginning stasis
         pigmentation or eczema.................................
        Intermittent edema of extremity or aching and fatigue in      10
         leg after prolonged standing or walking, with symptoms
         relieved by elevation of extremity or compression
         hosiery................................................
        Asymptomatic palpable or visible varicose veins.........       0
 
Note: These evaluations are for involvement of a single
 extremity. If more than one extremity is involved, evaluate
 each extremity separately and combine (under Sec. 4.25),
 using the bilateral factor (Sec. 4.26), if applicable.
 
7122 Cold injury residuals:
    With the following in affected parts:
        Arthralgia or other pain, numbness, or cold sensitivity       30
         plus two or more of the following: tissue loss, nail
         abnormalities, color changes, locally impaired
         sensation, hyperhidrosis, X-ray abnormalities
         (osteoporosis, subarticular punched out lesions, or
         osteoarthritis)........................................
        Arthralgia or other pain, numbness, or cold sensitivity       20
         plus tissue loss, nail abnormalities, color changes,
         locally impaired sensation, hyperhidro sis, or X-ray
         abnormalities (osteoporosis, subarticular punched out
         lesions, or osteoarthritis)............................
        Arthralgia or other pain, numbness, or cold sensitivity.      10
 
Note (1): Separately evaluate amputations of fingers or toes,
 and complications such as squamous cell carcinoma at the site
 of a cold injury scar or peripheral neuropathy, under other
 diagnostic codes. Separately evaluate other disabilities that
 have been diagnosed as the residual effects of cold injury,
 such as Raynaud's phenomenon, muscle atrophy, etc., unless they
 are used to support an evaluation under diagnostic code 7122.
Note (2): Evaluate each affected part (e.g., hand, foot, ear,
 nose) separately and combine the ratings in accordance with
 Sec. Sec. 4.25 and 4.26.
 
7123 Soft tissue sarcoma (of vascular origin)...................     100
 
Note: A rating of 100 percent shall continue beyond the
 cessation of any surgical, X-ray, antineoplastic chemotherapy
 or other therapeutic procedure. Six months after discontinuance
 of such treatment, the appropriate disability rating shall be
 determined by mandatory VA examination. Any change in
 evaluation based upon that or any subsequent examination shall
 be subject to the provisions of Sec. 3.105(e) of this
 chapter. If there has been no local recurrence or metastasis,
 rate on residuals.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[62 FR 65219, Dec. 11, 1997, as amended at 63 FR 37779, July 14, 1998]

                          The Digestive System



Sec. 4.110  Ulcers.

    Experience has shown that the term ``peptic ulcer'' is not 
sufficiently specific for rating purposes. Manifest differences in 
ulcers of the stomach or duodenum in comparison with those at an 
anastomotic stoma are sufficiently recognized as to warrant two separate 
graduated descriptions. In evaluating the ulcer, care should be taken 
that the findings adequately identify the particular location.



Sec. 4.111  Postgastrectomy syndromes.

    There are various postgastrectomy symptoms which may occur following 
anastomotic operations of the stomach. When present, those occurring 
during or immediately after eating and known as the ``dumping syndrome'' 
are characterized by gastrointestinal complaints and generalized 
symptoms simulating hypoglycemia; those occurring from 1 to 3 hours 
after eating usually present definite manifestations of hypoglycemia.



Sec. 4.112  Weight loss.

    For purposes of evaluating conditions in Sec. 4.114, the term 
``substantial weight loss'' means a loss of greater than 20 percent of 
the individual's baseline weight, sustained for three months or longer; 
and the term ``minor weight loss'' means a weight loss of 10 to 20 
percent of the individual's baseline weight, sustained for three months 
or longer. The term ``inability to gain weight'' means that there has 
been substantial weight loss with inability

[[Page 428]]

to regain it despite appropriate therapy. ``Baseline weight'' means the 
average weight for the two-year-period preceding onset of the disease.

(Authority: 38 U.S.C. 1155)

[66 FR 29488, May 31, 2001]



Sec. 4.113  Coexisting abdominal conditions.

    There are diseases of the digestive system, particularly within the 
abdomen, which, while differing in the site of pathology, produce a 
common disability picture characterized in the main by varying degrees 
of abdominal distress or pain, anemia and disturbances in nutrition. 
Consequently, certain coexisting diseases in this area, as indicated in 
the instruction under the title ``Diseases of the Digestive System,'' do 
not lend themselves to distinct and separate disability evaluations 
without violating the fundamental principle relating to pyramiding as 
outlined in Sec. 4.14.



Sec. 4.114  Schedule of ratings--digestive system.

    Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, 
and 7345 to 7348 inclusive will not be combined with each other. A 
single evaluation will be assigned under the diagnostic code which 
reflects the predominant disability picture, with elevation to the next 
higher evaluation where the severity of the overall disability warrants 
such elevation.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
7200 Mouth, injuries of.
  Rate as for disfigurement and impairment of function of
   mastication.
7201 Lips, injuries of.
  Rate as for disfigurement of face.
7202 Tongue, loss of whole or part:
  With inability to communicate by speech.......................     100
  One-half or more..............................................      60
  With marked speech impairment.................................      30
7203 Esophagus, stricture of:
  Permitting passage of liquids only, with marked impairment of       80
   general health...............................................
  Severe, permitting liquids only...............................      50
  Moderate......................................................      30
7204 Esophagus, spasm of (cardiospasm).
  If not amenable to dilation, rate as for the degree of
   obstruction (stricture).
7205 Esophagus, diverticulum of, acquired.
  Rate as for obstruction (stricture).
7301 Peritoneum, adhesions of:
  Severe; definite partial obstruction shown by X-ray, with           50
   frequent and prolonged episodes of severe colic distension,
   nausea or vomiting, following severe peritonitis, ruptured
   appendix, perforated ulcer, or operation with drainage.......
  Moderately severe; partial obstruction manifested by delayed        30
   motility of barium meal and less frequent and less prolonged
   episodes of pain.............................................
  Moderate; pulling pain on attempting work or aggravated by          10
   movements of the body, or occasional episodes of colic pain,
   nausea, constipation (perhaps alternating with diarrhea) or
   abdominal distension.........................................
  Mild..........................................................       0
  Note: Ratings for adhesions will be considered when there is
   history of operative or other traumatic or infectious
   (intraabdominal) process, and at least two of the following:
   disturbance of motility, actual partial obstruction, reflex
   disturbances, presence of pain.
7304 Ulcer, gastric.
7305 Ulcer, duodenal:
  Severe; pain only partially relieved by standard ulcer              60
   therapy, periodic vomiting, recurrent hematemesis or melena,
   with manifestations of anemia and weight loss productive of
   definite impairment of health................................
  Moderately severe; less than severe but with impairment of          40
   health manifested by anemia and weight loss; or recurrent
   incapacitating episodes averaging 10 days or more in duration
   at least four or more times a year...........................
  Moderate; recurring episodes of severe symptoms two or three        20
   times a year averaging 10 days in duration; or with
   continuous moderate manifestations...........................
  Mild; with recurring symptoms once or twice yearly............      10
7306 Ulcer, marginal (gastrojejunal):
  Pronounced; periodic or continuous pain unrelieved by standard     100
   ulcer therapy with periodic vomiting, recurring melena or
   hematemesis, and weight loss. Totally incapacitating.........
  Severe; same as pronounced with less pronounced and less            60
   continuous symptoms with definite impairment of health.......
  Moderately severe; intercurrent episodes of abdominal pain at       40
   least once a month partially or completely relieved by ulcer
   therapy, mild and transient episodes of vomiting or melena...
  Moderate; with episodes of recurring symptoms several times a       20
   year.........................................................
  Mild; with brief episodes of recurring symptoms once or twice       10
   yearly.......................................................
7307 Gastritis, hypertrophic (identified by gastro scope):
  Chronic; with severe hemorrhages, or large ulcerated or eroded      60
   areas........................................................
  Chronic; with multiple small eroded or ulcerated areas, and         30
   symptoms.....................................................
  Chronic; with small nodular lesions, and symptoms.............      10
  Gastritis, atrophic.
  A complication of a number of diseases, including pernicious
   anemia.
  Rate the underlying condition.
7308 Postgastrectomy syndromes:
  Severe; associated with nausea, sweating, circulatory               60
   disturbance after meals, diarrhea, hypoglycemic symptoms, and
   weight loss with malnutrition and anemia.....................

[[Page 429]]

 
  Moderate; less frequent episodes of epigastric disorders with       40
   characteristic mild circulatory symptoms after meals but with
   diarrhea and weight loss.....................................
  Mild; infrequent episodes of epigastric distress with               20
   characteristic mild circulatory symptoms or continuous mild
   manifestations...............................................
7309 Stomach, stenosis of.
  Rate as for gastric ulcer.
7310 Stomach, injury of, residuals.
  Rate as peritoneal adhesions.
7311 Residuals of injury of the liver:
  Depending on the specific residuals, separately evaluate as
   adhesions of peritoneum (diagnostic code 7301), cirrhosis of
   liver (diagnostic code 7312), and chronic liver disease
   without cirrhosis (diagnostic code 7345).
7312 Cirrhosis of the liver, primary biliary cirrhosis, or
 cirrhotic phase of sclerosing cholangitis:
  Generalized weakness, substantial weight loss, and persistent      100
   jaundice, or; with one of the following refractory to
   treatment: ascites, hepatic encephalopathy, hemorrhage from
   varices or portal gastropathy (erosive gastritis)............
  History of two or more episodes of ascites, hepatic                 70
   encephalopathy, or hemorrhage from varices or portal
   gastropathy (erosive gastritis), but with periods of
   remission between attacks....................................
  History of one episode of ascites, hepatic encephalopathy, or       50
   hemorrhage from varices or portal gastropathy (erosive
   gastritis)...................................................
  Portal hypertension and splenomegaly, with weakness, anorexia,      30
   abdominal pain, malaise, and at least minor weight loss......
  Symptoms such as weakness, anorexia, abdominal pain, and            10
   malaise......................................................
  Note: For evaluation under diagnostic code 7312, documentation
   of cirrhosis (by biopsy or imaging) and abnormal liver
   function tests must be present.
7314 Cholecystitis, chronic:
  Severe; frequent attacks of gall bladder colic................      30
  Moderate; gall bladder dyspepsia, confirmed by X-ray                10
   technique, and with infrequent attacks (not over two or three
   a year) of gall bladder colic, with or without jaundice......
  Mild..........................................................       0
7315 Cholelithiasis, chronic.
  Rate as for chronic cholecystitis.
7316 Cholangitis, chronic.
  Rate as for chronic cholecystitis.
7317 Gall bladder, injury of.
  Rate as for peritoneal adhesions.
7318 Gall bladder, removal of:
  With severe symptoms..........................................      30
  With mild symptoms............................................      10
  Nonsymptomatic................................................       0
  Spleen, disease or injury of.
   See Hemic and Lymphatic Systems.
7319 Irritable colon syndrome (spastic colitis, mucous colitis,
 etc.):
  Severe; diarrhea, or alternating diarrhea and constipation,         30
   with more or less constant abdominal distress................
  Moderate; frequent episodes of bowel disturbance with               10
   abdominal distress...........................................
  Mild; disturbances of bowel function with occasional episodes        0
   of abdominal distress........................................
7321 Amebiasis:
  Mild gastrointestinal disturbances, lower abdominal cramps,         10
   nausea, gaseous distention, chronic constipation interrupted
   by diarrhea..................................................
  Asymptomatic..................................................       0
  Note: Amebiasis with or without liver abscess is parallel in
   symptomatology with ulcerative colitis and should be rated on
   the scale provided for the latter. Similarly, lung abscess
   due to amebiasis will be rated under the respiratory system
   schedule, diagnostic code 6809.
7322 Dysentery, bacillary.
  Rate as for ulcerative colitis................................
7323 Colitis, ulcerative:
  Pronounced; resulting in marked malnutrition, anemia, and          100
   general debility, or with serious complication as liver
   abscess......................................................
  Severe; with numerous attacks a year and malnutrition, the          60
   health only fair during remissions...........................
  Moderately severe; with frequent exacerbations................      30
  Moderate; with infrequent exacerbations.......................      10
7324 Distomiasis, intestinal or hepatic:
  Severe symptoms...............................................      30
  Moderate symptoms.............................................      10
  Mild or no symptoms...........................................       0
7325 Enteritis, chronic.
  Rate as for irritable colon syndrome.
7326 Enterocolitis, chronic.
  Rate as for irritable colon syndrome.
7327 Diverticulitis.
  Rate as for irritable colon syndrome, peritoneal adhesions, or
   colitis, ulcerative, depending upon the predominant
   disability picture.
7328 Intestine, small, resection of:
  With marked interference with absorption and nutrition,             60
   manifested by severe impairment of health objectively
   supported by examination findings including material weight
   loss.........................................................
  With definite interference with absorption and nutrition,           40
   manifested by impairment of health objectively supported by
   examination findings including definite weight loss..........
  Symptomatic with diarrhea, anemia and inability to gain weight      20
  Note: Where residual adhesions constitute the predominant
   disability, rate under diagnostic code 7301.
7329 Intestine, large, resection of:
  With severe symptoms, objectively supported by examination          40
   findings.....................................................
  With moderate symptoms........................................      20
  With slight symptoms..........................................      10
  Note: Where residual adhesions constitute the predominant
   disability, rate under diagnostic code 7301.
7330 Intestine, fistula of, persistent, or after attempt at
 operative closure:
  Copious and frequent, fecal discharge.........................     100
  Constant or frequent, fecal discharge.........................      60
  Slight infrequent, fecal discharge............................      30
  Healed; rate for peritoneal adhesions.
7331 Peritonitis, tuberculous, active or inactive:
  Active........................................................     100
  Inactive: See Sec. Sec. 4.88b and 4.89.
7332 Rectum and anus, impairment of sphincter control:
  Complete loss of sphincter control............................     100
  Extensive leakage and fairly frequent involuntary bowel             60
   movements....................................................
  Occasional involuntary bowel movements, necessitating wearing       30
   of pad.......................................................
  Constant slight, or occasional moderate leakage...............      10
  Healed or slight, without leakage.............................       0
7333 Rectum and anus, stricture of:
  Requiring colostomy...........................................     100
  Great reduction of lumen, or extensive leakage................      50
  Moderate reduction of lumen, or moderate constant leakage.....      30

[[Page 430]]

 
7334 Rectum, prolapse of:
  Severe (or complete), persistent..............................      50
  Moderate, persistent or frequently recurring..................      30
  Mild with constant slight or occasional moderate leakage......      10
7335 Ano, fistula in.
  Rate as for impairment of sphincter control.
7336 Hemorrhoids, external or internal:
  With persistent bleeding and with secondary anemia, or with         20
   fissures.....................................................
  Large or thrombotic, irreducible, with excessive redundant          10
   tissue, evidencing frequent recurrences......................
  Mild or moderate..............................................       0
7337 Pruritus ani.
  Rate for the underlying condition.
7338 Hernia, inguinal:
  Large, postoperative, recurrent, not well supported under           60
   ordinary conditions and not readily reducible, when
   considered inoperable........................................
  Small, postoperative recurrent, or unoperated irremediable,         30
   not well supported by truss, or not readily reducible........
  Postoperative recurrent, readily reducible and well supported       10
   by truss or belt.............................................
  Not operated, but remediable..................................       0
  Small, reducible, or without true hernia protrusion...........       0
  Note: Add 10 percent for bilateral involvement, provided the
   second hernia is compensable. This means that the more
   severely disabling hernia is to be evaluated, and 10 percent,
   only, added for the second hernia, if the latter is of
   compensable degree.
7339 Hernia, ventral, postoperative:
  Massive, persistent, severe diastasis of recti muscles or          100
   extensive diffuse destruction or weakening of muscular and
   fascial support of abdominal wall so as to be inoperable.....
  Large, not well supported by belt under ordinary conditions...      40
  Small, not well supported by belt under ordinary conditions,        20
   or healed ventral hernia or post-operative wounds with
   weakening of abdominal wall and indication for a supporting
   belt.........................................................
  Wounds, postoperative, healed, no disability, belt not               0
   indicated....................................................
7340 Hernia, femoral.
  Rate as for inguinal hernia.
7342 Visceroptosis, symptomatic, marked.........................      10
7343 Malignant neoplasms of the digestive system, exclusive of       100
 skin growths...................................................
  Note: A rating of 100 percent shall continue beyond the
   cessation of any surgical, X-ray, antineoplastic chemotherapy
   or other therapeutic procedure. Six months after
   discontinuance of such treatment, the appropriate disability
   rating shall be determined by mandatory VA examination. Any
   change in evaluation based upon that or any subsequent
   examination shall be subject to the provisions of Sec.
   3.105(e) of this chapter. If there has been no local
   recurrence or metastasis, rate on residuals.
7344 Benign neoplasms, exclusive of skin growths:
  Evaluate under an appropriate diagnostic code, depending on
   the predominant disability or the specific residuals after
   treatment.
7345 Chronic liver disease without cirrhosis (including
 hepatitis B, chronic active hepatitis, autoimmune hepatitis,
 hemochromatosis, drug-induced hepatitis, etc., but excluding
 bile duct disorders and hepatitis C):
  Near-constant debilitating symptoms (such as fatigue, malaise,     100
   nausea, vomiting, anorexia, arthralgia, and right upper
   quadrant pain)...............................................
  Daily fatigue, malaise, and anorexia, with substantial weight       60
   loss (or other indication of malnutrition), and hepatomegaly,
   or; incapacitating episodes (with symptoms such as fatigue,
   malaise, nausea, vomiting, anorexia, arthralgia, and right
   upper quadrant pain) having a total duration of at least six
   weeks during the past 12-month period, but not occurring
   constantly...................................................
  Daily fatigue, malaise, and anorexia, with minor weight loss        40
   and hepatomegaly, or; incapacitating episodes (with symptoms
   such as fatigue, malaise, nausea, vomiting, anorexia,
   arthralgia, and right upper quadrant pain) having a total
   duration of at least four weeks, but less than six weeks,
   during the past 12-month period..............................
  Daily fatigue, malaise, and anorexia (without weight loss or        20
   hepatomegaly), requiring dietary restriction or continuous
   medication, or; incapacitating episodes (with symptoms such
   as fatigue, malaise, nausea, vomiting, anorexia, arthralgia,
   and right upper quadrant pain) having a total duration of at
   least two weeks, but less than four weeks, during the past 12-
   month period.................................................
  Intermittent fatigue, malaise, and anorexia, or;                    10
   incapacitating episodes (with symptoms such as fatigue,
   malaise, nausea, vomiting, anorexia, arthralgia, and right
   upper quadrant pain) having a total duration of at least one
   week, but less than two weeks, during the past 12-month
   period.......................................................
  Nonsymptomatic................................................       0
  Note (1): Evaluate sequelae, such as cirrhosis or malignancy
   of the liver, under an appropriate diagnostic code, but do
   not use the same signs and symptoms as the basis for
   evaluation under DC 7354 and under a diagnostic code for
   sequelae. (See Sec. 4.14.).
  Note (2): For purposes of evaluating conditions under
   diagnostic code 7345, ``incapacitating episode'' means a
   period of acute signs and symptoms severe enough to require
   bed rest and treatment by a physician.
  Note (3): Hepatitis B infection must be confirmed by serologic
   testing in order to evaluate it under diagnostic code 7345.
7346 Hernia hiatal:
  Symptoms of pain, vomiting, material weight loss and                60
   hematemesis or melena with moderate anemia; or other symptom
   combinations productive of severe impairment of health.......
  Persistently recurrent epigastric distress with dysphagia,          30
   pyrosis, and regurgitation, accompanied by substernal or arm
   or shoulder pain, productive of considerable impairment of
   health.......................................................
  With two or more of the symptoms for the 30 percent evaluation      10
   of less severity.............................................
7347 Pancreatitis:
  With frequently recurrent disabling attacks of abdominal pain      100
   with few pain free intermissions and with steatorrhea,
   malabsorption, diarrhea and severe malnutrition..............
  With frequent attacks of abdominal pain, loss of normal body        60
   weight and other findings showing continuing pancreatic
   insufficiency between acute attacks..........................

[[Page 431]]

 
  Moderately severe; with at least 4-7 typical attacks of             30
   abdominal pain per year with good remission between attacks..
  With at least one recurring attack of typical severe abdominal      10
   pain in the past year........................................
  Note 1: Abdominal pain in this condition must be confirmed as
   resulting from pancreatitis by appropriate laboratory and
   clinical studies.
  Note 2: Following total or partial pancreatectomy, rate under
   above, symptoms, minimum rating 30 percent.
7348 Vagotomy with pyloroplasty or gastroenterostomy:
  Followed by demonstrably confirmative postoperative                 40
   complications of stricture or continuing gastric retention...
  With symptoms and confirmed diagnosis of alkaline gastritis,        30
   or of confirmed persisting diarrhea..........................
  Recurrent ulcer with incomplete vagotomy......................      20
  Note: Rate recurrent ulcer following complete vagotomy under
   diagnostic code 7305, minimum rating 20 percent; and rate
   dumping syndrome under diagnostic code 7308.
7351 Liver transplant:
  For an indefinite period from the date of hospital admission       100
   for transplant surgery.......................................
  Minimum.......................................................      30
  Note: A rating of 100 percent shall be assigned as of the date
   of hospital admission for transplant surgery and shall
   continue. One year following discharge, the appropriate
   disability rating shall be determined by mandatory VA
   examination. Any change in evaluation based upon that or any
   subsequent examination shall be subject to the provisions of
   Sec. 3.105(e) of this chapter.
7354 Hepatitis C (or non-A, non-B hepatitis):
  With serologic evidence of hepatitis C infection and the
   following signs and symptoms due to hepatitis C infection:
   Near-constant debilitating symptoms (such as fatigue,             100
   malaise, nausea, vomiting, anorexia, arthralgia, and right
   upper quadrant pain).........................................
  Daily fatigue, malaise, and anorexia, with substantial weight       60
   loss (or other indication of malnutrition), and hepatomegaly,
   or; incapacitating episodes (with symptoms such as fatigue,
   malaise, nausea, vomiting, anorexia, arthralgia, and right
   upper quadrant pain) having a total duration of at least six
   weeks during the past 12-month period, but not occurring
   constantly...................................................
  Daily fatigue, malaise, and anorexia, with minor weight loss        40
   and hepatomegaly, or; incapacitating episodes (with symptoms
   such as fatigue, malaise, nausea, vomiting, anorexia,
   arthralgia, and right upper quadrant pain) having a total
   duration of at least four weeks, but less than six weeks,
   during the past 12-month period..............................
  Daily fatigue, malaise, and anorexia (without weight loss or        20
   hepatomegaly), requiring dietary restriction or continuous
   medication, or; incapacitating episodes (with symptoms such
   as fatigue, malaise, nausea, vomiting, anorexia, arthralgia,
   and right upper quadrant pain) having a total duration of at
   least two weeks, but less than four weeks, during the past 12-
   month period.................................................
  Intermittent fatigue, malaise, and anorexia, or;                    10
   incapacitating episodes (with symptoms such as fatigue,
   malaise, nausea, vomiting, anorexia, arthralgia, and right
   upper quadrant pain) having a total duration of at least one
   week, but less than two weeks, during the past 12-month
   period.......................................................
  Nonsymptomatic................................................       0
  Note (1): Evaluate sequelae, such as cirrhosis or malignancy
   of the liver, under an appropriate diagnostic code, but do
   not use the same signs and symptoms as the basis for
   evaluation under DC 7354 and under a diagnostic code for
   sequelae. (See Sec. 4.14.).
  Note (2): For purposes of evaluating conditions under
   diagnostic code 7354, ``incapacitating episode'' means a
   period of acute signs and symptoms severe enough to require
   bed rest and treatment by a physician.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[29 FR 6718, May 22, 1964, as amended at 34 FR 5063, Mar. 11, 1969; 40 
FR 42540, Sept. 15, 1975; 41 FR 11301, Mar. 18, 1976; 66 FR 29488, May 
31, 2001]

                        The Genitourinary System



Sec. 4.115  Nephritis.

    Albuminuria alone is not nephritis, nor will the presence of 
transient albumin and casts following acute febrile illness be taken as 
nephritis. The glomerular type of nephritis is usually preceded by or 
associated with severe infectious disease; the onset is sudden, and the 
course marked by red blood cells, salt retention, and edema; it may 
clear up entirely or progress to a chronic condition. The 
nephrosclerotic type, originating in hypertension or arteriosclerosis, 
develops slowly, with minimum laboratory findings, and is associated 
with natural progress. Separate ratings are not to be assigned for 
disability from disease of the heart and any form of nephritis, on 
account of the close interrelationships of cardiovascular disabilities. 
If, however, absence of a kidney is the sole renal disability, even if 
removal was required because of nephritis, the absent kidney and any 
hypertension or heart disease will be separately rated. Also, in the 
event that chronic renal disease has progressed to the point where 
regular

[[Page 432]]

dialysis is required, any coexisting hypertension or heart disease will 
be separately rated.

[41 FR 34258, Aug. 13, 1976, as amended at 59 FR 2527, Jan. 18, 1994]



Sec. 4.115a  Ratings of the genitourinary system--dysfunctions.

    Diseases of the genitourinary system generally result in 
disabilities related to renal or voiding dysfunctions, infections, or a 
combination of these. The following section provides descriptions of 
various levels of disability in each of these symptom areas. Where 
diagnostic codes refer the decisionmaker to these specific areas 
dysfunction, only the predominant area of dysfunction shall be 
considered for rating purposes. Since the areas of dysfunction described 
below do not cover all symptoms resulting from genitourinary diseases, 
specific diagnoses may include a description of symptoms assigned to 
that diagnosis.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
Renal dysfunction:
  Requiring regular dialysis, or precluding more than sedentary      100
   activity from one of the following: persistent edema and
   albuminuria; or, BUN more than 80mg%; or, creatinine more
   than 8mg%; or, markedly decreased function of kidney or other
   organ systems, estpecially cardiovascular....................
  Persistent edema and albuminuria with BUN 40 to 80mg%; or,          80
   creatinine 4 to 8mg%; or, generalized poor health
   characterized by lethargy, weakness, anorexia, weight loss,
   or limitation of exertion....................................
  Constant albuminuria with some edema; or, definite decrease in      60
   kidney function; or, hypertension at least 40 percent
   disabling under diagnostic code 7101.........................
  Albumin constant or recurring with hyaline and granular casts       30
   or red blood cells; or, transient or slight edema or
   hypertension at least 10 percent disabling under diagnostic
   code 7101....................................................
  Albumin and casts with history of acute nephritis; or,               0
   hypertension non-compensable under diagnostic code 7101......
Voiding dysfunction:
  Rate particular condition as urine leakage, frequency, or       ......
   obstructed voiding
  Continual Urine Leakage, Post Surgical Urinary Diversion,
   Urinary Incontinence, or Stress Incontinence:
  Requiring the use of an appliance or the wearing of absorbent       60
   materials which must be changed more than 4 times per day....
  Requiring the wearing of absorbent materials which must be          40
   changed 2 to 4 times per day.................................
  Requiring the wearing of absorbent materials which must be          20
   changed less than 2 times per day............................
Urinary frequency:
  Daytime voiding interval less than one hour, or; awakening to       40
   void five or more times per night............................
  Daytime voiding interval between one and two hours, or;             20
   awakening to void three to four times per night..............
  Daytime voiding interval between two and three hours, or;           10
   awakening to void two times per night........................
Obstructed voiding:
  Urinary retention requiring intermittent or continuous              30
   catheterization..............................................
  Marked obstructive symptomatology (hesitancy, slow or weak
   stream, decreased force of stream) with any one or
   combination of the following:
    1. Post void residuals greater than 150 cc.
    2. Uroflowmetry; markedly diminished peak flow rate (less
     than 10 cc/sec).
    3. Recurrent urinary tract infections secondary to
     obstruction.
    4. Stricture disease requiring periodic dilatation every 2        10
     to 3 months................................................
  Obstructive symptomatology with or without stricture disease         0
   requiring dilatation 1 to 2 times per year...................
Urninary tract infection:
  Poor renal function: Rate as renal dysfunction.
  Recurrent symptomatic infection requiring drainage/frequent         30
   hospitalization (greater than two times/year), and/or
   requiring continuous intensive management....................
  Long-term drug therapy, 1-2 hospitalizations per year and/or        10
   requiring intermittent intensive management..................
------------------------------------------------------------------------


[59 FR 2527, Jan. 18, 1994; 59 FR 10676, Mar. 7, 1994]



Sec. 4.115b  Ratings of the genitourinary system--diagnoses.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
      Note: When evaluating any claim involving loss or loss of
       use of one or more creative organs, refer to Sec. 3.350
       of this chapter to determine whether the veteran may be
       entitled to special monthly compensation. Footnotes in
       the schedule indicate conditions which potentially
       establish entitlement to special monthly compensation;
       however, there are other conditions in this section which
       under certain circumstances also establish entitlement to
       special monthly compensation.
 
7500 Kidney, removal of one:
      Minimum evaluation........................................      30
      Or rate as renal dysfunction if there is nephritis,
       infection, or pathology of the other.
7501 Kidney, abscess of:
      Rate as urinary tract infection...........................  ......

[[Page 433]]

 
7502 Nephritis, chronic:
      Rate as renal dysfunction.
7504 Pyelonephritis, chronic:
      Rate as renal dysfunction or urinary tract infection,
       whichever is predominant.
7505 Kidney, tuberculosis of:
      Rate in accordance with Sec. Sec. 4.88b or 4.89,
       whichever is appropriate.
7507 Nephrosclerosis, arteriolar:
      Rate according to predominant symptoms as renal
       dysfunction, hypertension or heart disease. If rated
       under the cardiovascular schedule, however, the
       percentage rating which would otherwise be assigned will
       be elevated to the next higher evaluation.
7508 Nephrolithiasis:
      Rate as hydronephrosis, except for recurrent stone
       formation requiring one or more of the following:
        1. diet therapy
        2. drug therapy
        3. invasive or non-invasive procedures more than two          30
         times/year.............................................
7509 Hydronephrosis:
      Severe; Rate as renal dysfunction.
    Frequent attacks of colic with infection (pyonephrosis),          30
     kidney function impaired...................................
    Frequent attacks of colic, requiring catheter drainage......      20
    Only an occasional attack of colic, not infected and not          10
     requiring catheter drainage................................
7510 Ureterolithiasis:
      Rate as hydronephrosis, except for recurrent stone
       formation requiring one or more of the following:
        1. diet therapy
        2. drug therapy
        3. invasive or non-invasive procedures more than two          30
         times/year.............................................
7511 Ureter, stricture of:
      Rate as hydronephrosis, except for recurrent stone
       formation requiring one or more of the following:
        1. diet therapy
        2. drug therapy
        3. invasive or non-invasive procedures more than two          30
         times/year.............................................
7512 Cystitis, chronic, includes interstitial and all
 etiologies, infectious and non-infectious:
      Rate as voiding dysfunction.
7515 Bladder, calculus in, with symptoms interfering with
 function:
      Rate as voiding dysfunction
7516 Bladder, fistula of:
      Rate as voiding dysfunction or urinary tract infection,
       whichever is predominant.
      Postoperative, suprapubic cystotomy.......................     100
7517 Bladder, injury of:
      Rate as voiding dysfunction.
7518 Urethra, stricture of:
      Rate as voiding dysfunction.
7519 Urethra, fistual of:
      Rate as voiding dysfunction.
      Multiple urethroperineal fistulae.........................     100
7520 Penis, removal of half or more.............................      30
      Or rate as voiding dysfunction.
7521 Penis removal of glans.....................................      20
      Or rate as voiding dysfunction.
7522 Penis, deformity, with loss of erectile power--20 \1\......
7523 Testis, atrophy complete:..................................
      Both--20 \1\
      One--0 \1\
7524 Testis, removal:...........................................
      Both--30 \1\
      One--0 \1\
 
      Note: In cases of the removal of one testis as the result
       of a service-incurred injury or disease, other than an
       undescended or congenitally undeveloped testis, with the
       absence or nonfunctioning of the other testis unrelated
       to service, an evaluation of 30 percent will be assigned
       for the service-connected testicular loss. Testis,
       underscended, or congenitally undeveloped is not a
       ratable disability.
 
7525 Epididymo-orchitis, chronic only:
      Rate as urinary tract infection.
      For tubercular infections: Rate in accordance with Sec.
       Sec. 4.88b or 4.89, whichever is appropriate.
7527 Prostate gland injuries, infections, hypertrophy,
 postoperative residuals:
      Rate as voiding dysfunction or urinary tract infection,
       whichever is predominant.
7528 Malignant neoplasms of the genitourinary system............     100

[[Page 434]]

 
      Note--Following the cessation of surgical, X-ray,
       antineoplastic chemotherapy or other therapeutic
       procedure, the rating of 100 percent shall continue with
       a mandatory VA examination at the expiration of six
       months. Any change in evaluation based upon that or any
       subsequent examination shall be subject to the provisions
       of Sec. 3.105(e) of this chapter. If there has been no
       local reoccurrence or metastasis, rate on residuals as
       voiding dysfunction or renal dysfunction, whichever is
       predominant.
7529 Benign neoplasms of the genitourinary system:
      Rate as voiding dysfunction or renal dysfunction,
       whichever is predominant.
7530 Chronic renal disease requiring regular dialysis:
      Rate as renal dysfunction.
7531 Kidney transplant:
      Following transplant surgery..............................     100
      Thereafter: Rate on residuals as renal dysfunction,             30
       minimum rating...........................................
      Note--The 100 percent evaluation shall be assigned as of
       the date of hospital admission for transplant surgery and
       shall continue with a mandatory VA examination one year
       following hospital discharge. Any change in evaluation
       based upon that or any subsequent examination shall be
       subject to the provisions of Sec. 3.105(e) of this
       chapter.
7532 Renal tubular disorders (such as renal glycosurias,
 aminoacidurias, renal tubular acidosis, Fanconi's syndrome,
 Bartter's syndrome, related disorders of Henle's loop and
 proximal or distal nephron function, etc.):
      Minimum rating for symptomatic condition..................      20
      Or rate as renal dysfunction.
7533 Cystic diseases of the kidneys (polycystic disease, uremic
 medullary cystic disease, Medullary sponge kidney, and similar
 conditions):
      Rate as renal dysfunction.
7534 Atherosclerotic renal disease (renal artery stenosis or
 atheroembolic renal disease):
      Rate as renal dysfunction.
7535 Toxic nephropathy (antibotics, radiocontrast agents,
 nonsteroidal anti-inflammatory agents, heavy metals, and
 similar agents):
      Rate as renal dysfunction.
7536 Glomerulonephritis:
      Rate as renal dysfunction.
7537 Interstitial nephritis:
      Rate as renal dysfunction.
7538 Papillary necrosis:
      Rate as renal dysfunction.
7539 Renal amyloid disease:
      Rate as renal dysfunction.
7540 Disseminated intravascular coagulation with renal cortical
 necrosis:
      Rate as renal dysfunction.
7541 Renal involvement in diabetes mellitus, sickle cell anemia,
 systemic lupus erythematosus, vasculitis, or other systemic
 disease processes.
      Rate as renal dysfunction.
7542 Neurogenic bladder:
      Rate as voiding dysfunction.
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
  3.350 of this chapter.


[59 FR 2527, Jan. 18, 1994; 59 FR 14567, Mar. 29, 1994, as amended at 59 
FR 46339, Sept. 8, 1994]

[[Page 435]]

          Gynecological Conditions and Disorders of the Breast



Sec. 4.116  Schedule of ratings--gynecological conditions and 
disorders of the breast.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
    Note 1: Natural menopause, primary amenorrhea, and
     pregnancy and childbirth are not disabilities for rating
     purposes. Chronic residuals of medical or surgical
     complications of pregnancy may be disabilities for rating
     purposes.
    Note 2: When evaluating any claim involving loss or loss of
     use of one or more creative organs or anatomical loss of
     one or both breasts, refer to Sec. 3.350 of this chapter
     to determine whether the veteran may be entitled to
     special monthly compensation. Footnotes in the schedule
     indicate conditions which potentially establish
     entitlement to special monthly compensation; however,
     almost any condition in this section might, under certain
     circumstances, establish entitlement to special monthly
     compensation.
7610 Vulva, disease or injury of (including vulvovaginitis).
7611 Vagina, disease or injury of.
7612 Cervix, disease or injury of.
7613 Uterus, disease, injury, or adhesions of.
7614 Fallopian tube, disease, injury, or adhesions of
 (including pelvic inflammatory disease (PID)).
7615 Ovary, disease, injury, or adhesions of.
General Rating Formula for Disease, Injury, or Adhesions of
 Female Reproductive Organs (diagnostic codes 7610 through
 7615):
    Symptoms not controlled by continuous treatment............       30
    Symptoms that require continuous treatment.................       10
    Symptoms that do not require continuous treatment..........        0
7617 Uterus and both ovaries, removal of, complete:
    For three months after removal.............................  \1\ 100
    Thereafter.................................................   \1\ 50
7618 Uterus, removal of, including corpus:
    For three months after removal.............................  \1\ 100
    Thereafter.................................................   \1\ 30
7619 Ovary, removal of:
    For three months after removal.............................  \1\ 100
    Thereafter:
        Complete removal of both ovaries.......................   \1\ 30
        Removal of one with or without partial removal of the      \1\ 0
         other.................................................
7620 Ovaries, atrophy of both, complete........................   \1\ 20
7621 Uterus, prolapse:
    Complete, through vagina and introitus.....................       50
    Incomplete.................................................       30
7622 Uterus, displacement of:
    With marked displacement and frequent or continuous               30
     menstrual disturbances....................................
    With adhesions and irregular menstruation..................       10
7623 Pregnancy, surgical complications of:
    With rectocele or cystocele................................       50
    With relaxation of perineum................................       10
7624 Fistula, rectovaginal:
    Vaginal fecal leakage at least once a day requiring wearing      100
     of pad....................................................
    Vaginal fecal leakage four or more times per week, but less       60
     than daily, requiring wearing of pad......................
    Vaginal fecal leakage one to three times per week requiring       30
     wearing of pad............................................
    Vaginal fecal leakage less than once a week................       10
    Without leakage............................................        0
7625 Fistula, urethrovaginal:
    Multiple urethrovaginal fistulae...........................      100
    Requiring the use of an appliance or the wearing of               60
     absorbent materials which must be changed more than four
     times per day.............................................
    Requiring the wearing of absorbent materials which must be        40
     changed two to four times per day.........................
    Requiring the wearing of absorbent materials which must be        20
     changed less than two times per day.......................
7626 Breast, surgery of:
    Following radical mastectomy:
        Both...................................................    \1\80
        One....................................................    \1\50
    Following modified radical mastectomy:
        Both...................................................    \1\60
        One....................................................    \1\40
    Following simple mastectomy or wide local excision with
     significant alteration of size or form:
        Both...................................................    \1\50
        One....................................................    \1\30
    Following wide local excision without significant
     alteration of size or form:
        Both or one............................................        0
    Note: For VA purposes:
        (1) Radical mastectomy means removal of the entire
         breast, underlying pectoral muscles, and regional
         lymph nodes up to the coracoclavicular ligament.......
        (2) Modified radical mastectomy means removal of the
         entire breast and axillary lymph nodes (in continuity
         with the breast). Pectoral muscles are left intact....
        (3) Simple (or total) mastectomy means removal of all
         of the breast tissue, nipple, and a small portion of
         the overlying skin, but lymph nodes and muscles are
         left intact...........................................
        (4) Wide local excision (including partial mastectomy,
         lumpectomy, tylectomy, segmentectomy, and
         quadrantectomy) means removal of a portion of the
         breast tissue.........................................
7627 Malignant neoplasms of gynecological system or breast.....      100

[[Page 436]]

 
    Note: A rating of 100 percent shall continue beyond the
     cessation of any surgical, X-ray, antineoplastic
     chemotherapy or other therapeutic procedure. Six months
     after discontinuance of such treatment, the appropriate
     disability rating shall be determined by mandatory VA
     examination. Any change in evaluation based upon that or
     any subsequent examination shall be subject to the
     provisions of Sec. 3.105(e) of this chapter. If there
     has been no local recurrence or metastasis, rate on
     residuals.
7628 Benign neoplasms of the gynecological system or breast.
 Rate according to impairment in function of the urinary or
 gynecological systems, or skin.
7629 Endometriosis:
    Lesions involving bowel or bladder confirmed by                   50
     laparoscopy, pelvic pain or heavy or irregular bleeding
     not controlled by treatment, and bowel or bladder symptoms
    Pelvic pain or heavy or irregular bleeding not controlled         30
     by treatment..............................................
    Pelvic pain or heavy or irregular bleeding requiring              10
     continuous treatment for control..........................
    Note: Diagnosis of endometriosis must be substantiated by
     laparoscopy.
------------------------------------------------------------------------
\1\ Review for entitlement to special monthly compensation under Sec.
  3.350 of this chapter.


[60 FR 19855, Apr. 21, 1995, as amended at 67 FR 6874, Feb. 14, 2002; 67 
FR 37695, May 30, 2002]

                     The Hemic and Lymphatic Systems



Sec. 4.117  Schedule of ratings--hemic and lymphatic systems.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
7700 Anemia, hypochromic-microcytic and megaloblastic, such as
 iron-deficiency and pernicious anemia:
    Hemoglobin 5gm/100ml or less, with findings such as high         100
     output congestive heart failure or dyspnea at rest........
    Hemoglobin 7gm/100ml or less, with findings such as dyspnea       70
     on mild exertion, cardiomegaly, tachycardia (100 to 120
     beats per minute) or syncope (three episodes in the last
     six months)...............................................
    Hemoglobin 8gm/100ml or less, with findings such as               30
     weakness, easy fatigability, headaches, lightheadedness,
     or shortness of breath....................................
    Hemoglobin 10gm/100ml or less with findings such as               10
     weakness, easy fatigability or headaches..................
    Hemoglobin 10gm/100ml or less, asymptomatic................        0
 
Note: Evaluate complications of pernicious anemia, such as dementia or
 peripheral neuropathy, separately.
 
7702 Agranulocytosis, acute:
    Requiring bone marrow transplant, or; requiring transfusion      100
     of platelets or red cells at least once every six weeks,
     or; infections recurring at least once every six weeks....
    Requiring transfusion of platelets or red cells at least          60
     once every three months, or; infections recurring at least
     once every three months...................................
    Requiring transfusion of platelets or red cells at least          30
     once per year but less than once every three months, or;
     infections recurring at least once per year but less than
     once every three months...................................
    Requiring continuous medication for control................       10
 
Note: The 100 percent rating for bone marrow transplant shall be
 assigned as of the date of hospital admission and shall continue with a
 mandatory VA examination six months following hospital discharge. Any
 change in evaluation based upon that or any subsequent examination
 shall be subject to the provisions of Sec. 3.105(e) of this chapter.
 
7703 Leukemia:
    With active disease or during a treatment phase............      100
    Otherwise rate as anemia (code 7700) or aplastic anemia
     (code 7716), whichever would result in the greater
     benefit.
 
Note: The 100 percent rating shall continue beyond the cessation of any
 surgical, radiation, antineoplastic chemotherapy or other therapeutic
 procedures. Six months after discontinuance of such treatment, the
 appropriate disability rating shall be determined by mandatory VA
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of
 this chapter. If there has been no recurrence, rate on residuals.
 
7704 Polycythemia vera:
    During periods of treatment with myelosuppressants and for       100
     three months following cessation of myelo suppressant
     therapy...................................................
    Requiring phlebotomy.......................................       40
    Stable, with or without continuous medication..............       10
 
Note: Rate complications such as hypertension, gout, stroke or
 thrombotic disease separately.
 
7705 Thrombocytopenia, primary, idiopathic or immune:
    Platelet count of less than 20,000, with active bleeding,        100
     requiring treatment with medication and transfusions......
    Platelet count between 20,000 and 70,000, not requiring           70
     treatment, without bleeding...............................
    Stable platelet count between 70,000 and 100,000, without         30
     bleeding..................................................
    Stable platelet count of 100,000 or more, without bleeding.        0
7706 Splenectomy...............................................       20
 
Note: Rate complications such as systemic infections with encapsulated
 bacteria separately.
 
7707 Spleen, injury of, healed.
    Rate for any residuals.
7709 Hodgkin's disease:
    With active disease or during a treatment phase............      100
 
Note: The 100 percent rating shall continue beyond the cessation of any
 surgical, radiation, antineoplastic chemotherapy or other therapeutic
 procedures. Six months after discontinuance of such treatment, the
 appropriate disability rating shall be determined by mandatory VA
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of
 this chapter. If there has been no local recurrence or metastasis, rate
 on residuals.
 

[[Page 437]]

 
7710 Adenitis, tuberculous, active or inactive.
    Rate under Sec. Sec. 4.88c or 4.89 of this part,
     whichever is appropriate.
7714 Sickle cell anemia:
    With repeated painful crises, occurring in skin, joints,         100
     bones or any major organs caused by hemolysis and sickling
     of red blood cells, with anemia, thrombosis and
     infarction, with symptoms precluding even light manual
     labor.....................................................
    With painful crises several times a year or with symptoms         60
     precluding other than light manual labor..................
    Following repeated hemolytic sickling crises with                 30
     continuing impairment of health...........................
    Asymptomatic, established case in remission, but with             10
     identifiable organ impairment.............................
 
Note: Sickle cell trait alone, without a history of directly
 attributable pathological findings, is not a ratable disability. Cases
 of symptomatic sickle cell trait will be forwarded to the Director,
 Compensation and Pension Service, for consideration under Sec.
 3.321(b)(1) of this chapter.
 
7715 Non-Hodgkin's lymphoma:
    With active disease or during a treatment phase............      100
 
Note: The 100 percent rating shall continue beyond the cessation of any
 surgical, radiation, antineoplastic chemotherapy or other therapeutic
 procedures. Six months after discontinuance of such treatment, the
 appropriate disability rating shall be dtermined by mandatory VA
 examination. Any change in evaluation based upon that or any subsequent
 examination shall be subject to the provisions of Sec. 3.105(e) of
 this chapter. If there has been no local recurrence or metastasis, rate
 on residuals.
 
7716 Aplastic anemia:
    Requiring bone marrow transplant, or; requiring transfusion      100
     of platelets or red cells at least once every six weeks,
     or; infections recurring at least once every six weeks....
    Requiring transfusion of platelets or red cells at least          60
     once every three months, or; infections recurring at least
     once every three months...................................
    Requiring transfusion of platelets or red cells at least          30
     once per year but less than once every three months, or;
     infections recurring at least once per year but less than
     once every three months...................................
    Requiring continuous medication for control................       10
 
Note: The 100 percent rating for bone marrow transplant shall be
 assigned as of the date of hospital admission and shall continue with a
 mandatory VA examination six months following hospital discharge. Any
 change in evaluation based upon that or any subsequent examination
 shall be subject to the provisions of Sec. 3.105(e) of this chapter.
------------------------------------------------------------------------


[60 FR 49227, Sept. 22, 1995]

                                The Skin



Sec. 4.118  Schedule of ratings--skin.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
7800 Disfigurement of the head, face, or neck:
    With visible or palpable tissue loss and either gross             80
     distortion or asymmetry of three or more features or paired
     sets of features (nose, chin, forehead, eyes (including
     eyelids), ears (auricles), cheeks, lips), or; with six or
     more characteristics of disfigurement......................
    With visible or palpable tissue loss and either gross             50
     distortion or asymmetry of two features or paired sets of
     features (nose, chin, forehead, eyes (including eyelids),
     ears (auricles), cheeks, lips), or; with four or five
     characteristics of disfigurement...........................
    With visible or palpable tissue loss and either gross             30
     distortion or asymmetry of one feature or paired set of
     features (nose, chin, forehead, eyes (including eyelids),
     ears (auricles), cheeks, lips), or; with two or three
     characteristics of disfigurement...........................
    With one characteristic of disfigurement....................      10
    Note (1):The 8 characteristics of disfigurement, for
     purposes of evaluation under Sec. 4.118, are:
    Scar 5 or more inches (13 or more cm.) in length.
    Scar at least one-quarter inch (0.6 cm.) wide at widest
     part.
    Surface contour of scar elevated or depressed on palpation.
    Scar adherent to underlying tissue.
    Skin hypo-or hyper-pigmented in an area exceeding six square
     inches (39 sq. cm.).
    Skin texture abnormal (irregular, atrophic, shiny, scaly,
     etc.) in an area exceeding six square inches (39 sq. cm.).
    Underlying soft tissue missing in an area exceeding six
     square inches (39 sq. cm.).
    Skin indurated and inflexible in an area exceeding six
     square inches (39 sq. cm.).
    Note (2): Rate tissue loss of the auricle under DC 6207
     (loss of auricle) and anatomical loss of the eye under DC
     6061 (anatomical loss of both eyes) or DC 6063 (anatomical
     loss of one eye), as appropriate.
    Note (3): Take into consideration unretouched color
     photographs when evaluating under these criteria.
7801 Scars, other than head, face, or neck, that are deep or
 that cause limited motion:
    Area or areas exceeding 144 square inches (929 sq.cm.)......      40
    Area or areas exceeding 72 square inches (465 sq. cm.)......      30
    Area or areas exceeding 12 square inches (77 sq. cm.).......      20
    Area or areas exceeding 6 square inches (39 sq. cm.)........      10
    Note (1): Scars in widely separated areas, as on two or more
     extremities or on anterior and posterior surfaces of
     extremities or trunk, will be separately rated and combined
     in accordance with Sec. 4.25 of this part.
    Note (2): A deep scar is one associated with underlying soft
     tissue damage.
7802 Scars, other than head, face, or neck, that are superficial
 and that do not cause limited motion:..........................
    Area or areas of 144 square inches (929 sq. cm.) or greater.      10

[[Page 438]]

 
    Note (1): Scars in widely separated areas, as on two or more
     extremities or on anterior and posterior surfaces of
     extremities or trunk, will be separately rated and combined
     in accordance with Sec. 4.25 of this part.
    Note (2): A superficial scar is one not associated with
     underlying soft tissue damage.
7803 Scars, superficial, unstable...............................      10
    Note (1): An unstable scar is one where, for any reason,
     there is frequent loss of covering of skin over the scar.
    Note (2): A superficial scar is one not associated with
     underlying soft tissue damage.
7804 Scars, superficial, painful on examination.................      10
    Note (1): A superficial scar is one not associated with
     underlying soft tissue damage.
    Note (2): In this case, a 10-percent evaluation will be
     assigned for a scar on the tip of a finger or toe even
     though amputation of the part would not warrant a
     compensable evaluation.
    (See Sec. 4.68 of this part on the amputation rule.)
7805 Scars, other; Rate on limitation of function of affected
 part.
7806 Dermatitis or eczema.
    More than 40 percent of the entire body or more than 40           60
     percent of exposed areas affected, or; constant or near-
     constant systemic therapy such as corticosteroids or other
     immunosuppressive drugs required during the past 12-month
     period.....................................................
    20 to 40 percent of the entire body or 20 to 40 percent of        30
     exposed areas affected, or; systemic therapy such as
     corticosteroids or other immunosuppressive drugs required
     for a total duration of six weeks or more, but not
     constantly, during the past 12-month period................
    At least 5 percent, but less than 20 percent, of the entire       10
     body, or at least 5 percent, but less than 20 percent, of
     exposed areas affected, or; intermittent systemic therapy
     such as corticosteroids or other immunosuppressive drugs
     required for a total duration of less than six weeks during
     the past 12-month period...................................
    Less than 5 percent of the entire body or less than 5              0
     percent of exposed areas affected, and; no more than
     topical therapy required during the past 12-month period...
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7807 American (New World) leishmaniasis (mucocutaneous,
 espundia):
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis
     (DC 7806), depending upon the predominant disability.......
    Note: Evaluate non-cutaneous (visceral) leishmaniasis under
     DC 6301 (visceral leishmaniasis).
7808 Old World leishmaniasis (cutaneous, Oriental sore):
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's, 7801, 7802, 7803, 7804, or 7805), or
     dermatitis (DC 7806), depending upon the predominant
     disabililty................................................
    Note: Evaluate non-cutaneous (visceral) leishmaniasis under
     DC 6301 (visceral leishmaniasis).
7809 Discoid lupus erythematosus or subacute cutaneous lupus
 erythematosus:
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis
     (DC 7806), depending upon the predominant disability. Do
     not combine with ratings under DC 6350.....................
7811 Tuberculosis luposa (lupus vulgaris), active or inactive:
    Rate under Sec. Sec. 4.88c or 4.89, whichever is
     appropriate................................................
7813 Dermatophytosis (ringworm: of body, tinea corporis; of
 head, tinea capitis; of feet, tinea pedis; of beard area, tinea
 barbae; of nails, tinea unguium; of inguinal area (jock itch),
 tinea cruris):
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis
     (DC 7806), depending upon the predominant disability.......
7815 Bullous disorders (including pemphigus vulgaris, pemphigus
 foliaceous, bullous pemphigoid, dermatitis herpetiformis,
 epidermolysis bullosa acquisita, benign chronic familial
 pemphigus (Hailey-Hailey), and porphyria cutanea tarda):
    More than 40 percent of the entire body or more than 40           60
     percent of exposed areas affected, or; constant or near-
     constant systemic therapy such as corticosteroids or other
     immunosuppressive drugs required during the past 12-month
     period.....................................................
    20 to 40 percent of the entire body or 20 to 40 percent of        30
     exposed areas affected, or; systemic therapy such as
     corticosteroids or other immunosuppressive drugs required
     for a total duration of six weeks or more, but not
     constantly, during the past 12-month period................
    At least 5 percent, but less than 20 percent, of the entire       10
     body, or at least 5 percent, but less than 20 percent, of
     exposed areas affected, or; intermittent systemic therapy
     such as corticosteroids or other immunosuppressive drugs
     required for a total duration of less than six weeks during
     the past 12-month period...................................
    Less than 5 percent of the entire body or exposed areas            0
     affected, and; no more than topical therapy required during
     the past 12-month period...................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7816 Psoriasis:
    More than 40 percent of the entire body or more than 40           60
     percent of exposed areas affected, or; constant or near-
     constant systemic therapy such as corticosteroids or other
     immunosuppressive drugs required during the past 12-month
     period.....................................................
    20 to 40 percent of the entire body or 20 to 40 percent of        30
     exposed areas affected, or; systemic therapy such as
     corticosteroids or other immunosuppressive drugs required
     for a total duration of six weeks or more, but not
     constantly, during the past 12-month period................

[[Page 439]]

 
    At least 5 percent, but less than 20 percent, of the entire       10
     body, or at least 5 percent, but less than 20 percent, of
     exposed areas affected, or; intermittent systemic therapy
     such as corticosteroids or other immunosuppressive drugs
     required for a total duration of less than six weeks during
     the past 12-month period...................................
    Less than 5 percent of the entire body or exposed areas            0
     affected, and; no more than topical therapy required during
     the past 12-month period...................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7817 Exfoliative dermatitis (erythroderma):
    Generalized involvement of the skin, plus systemic               100
     manifestations (such as fever, weight loss, and
     hypoproteinemia), and; constant or near-constant systemic
     therapy such as therapeutic doses of corticosteroids,
     immunosuppressive retinoids, PUVA (psoralen with long-wave
     ultraviolet-A light) or UVB (ultraviolet-B light)
     treatments, or electron beam therapy required during the
     past 12-month period.......................................
    Generalized involvement of the skin without systemic              60
     manifestations, and; constant or near-constant systemic
     therapy such as therapeutic doses of corticosteroids,
     immunosuppressive retinoids, PUVA (psoralen with long-wave
     ultraviolet-A light) or UVB (ultraviolet-B light)
     treatments, or electron beam therapy required during the
     past 12-month period.......................................
    Any extent of involvement of the skin, and; systemic therapy      30
     such as therapeutic doses of corticosteroids,
     immunosuppressive retinoids, PUVA (psoralen with long-wave
     ultraviolet-A light) or UVB (ultraviolet-B light)
     treatments, or electron beam therapy required for a total
     duration of six weeks or more, but not constantly, during
     the past 12-month period...................................
    Any extent of involvement of the skin, and; systemic therapy      10
     such as therapeutic doses of corticosteroids,
     immunosuppressive retinoids, PUVA (psoralen with long-wave
     ultraviolet-A light) or UVB (ultraviolet-B light)
     treatments, or electron beam therapy required for a total
     duration of less than six weeks during the past 12-month
     period.....................................................
    Any extent of involvement of the skin, and; no more than           0
     topical therapy required during the past 12-month period...
7818 Malignant skin neoplasms (other than malignant melanoma):
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment
     of function................................................
    Note: If a skin malignancy requires therapy that is
     comparable to that used for systemic malignancies, i.e.,
     systemic chemotherapy, X-ray therapy more extensive than to
     the skin, or surgery more extensive than wide local
     excision, a 100-percent evaluation will be assigned from
     the date of onset of treatment, and will continue, with a
     mandatory VA examination six months following the
     completion of such antineoplastic treatment, and any change
     in evaluation based upon that or any subsequent examination
     will be subject to the provisions of Sec. 3.105(e) of
     this chapter. If there has been no local recurrence or
     metastasis, evaluation will then be made on residuals. If
     treatment is confined to the skin, the provisions for a 100-
     percent evaluation do not apply.
7819 Benign skin neoplasms:
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or impairment
     of function................................................
7820 Infections of the skin not listed elsewhere (including
 bacterial, fungal, viral, treponemal and parasitic diseases):
    Rate as disfigurement of the head, face, or neck (DC 7800),
     scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis
     (DC 7806), depending upon the predominant disability.......
7821 Cutaneous manifestations of collagen-vascular diseases not
 listed elsewhere (including scleroderma, calcinosis cutis, and
 dermatomyositis):
    More than 40 percent of the entire body or more than 40           60
     percent of exposed areas affected, or; constant or near-
     constant systemic therapy such as corticosteroids or other
     immunosuppressive drugs required during the past 12-month
     period.....................................................
    20 to 40 percent of the entire body or 20 to 40 percent of        30
     exposed areas affected, or; systemic therapy such as
     corticosteroids or other immunosuppressive drugs required
     for a total duration of six weeks or more, but not
     constantly, during the past 12-month period................
    At least 5 percent, but less than 20 percent, of the entire       10
     body, or at least 5 percent, but less than 20 percent, of
     exposed areas affected, or; intermittent systemic therapy
     such as corticosteroids or other immunosuppressive drugs
     required for a total duration of less than six weeks during
     the past 12-month period...................................
    Less than 5 percent of the entire body or exposed areas            0
     affected, and; no more than topical therapy required during
     the past 12-month period...................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7822 Papulosquamous disorders not listed elsewhere (including
 lichen planus, large or small plaque parapsoriasis, pityriasis
 lichenoides et varioliformis acuta (PLEVA), lymphomatoid
 papulosus, and pityriasis rubra pilaris (PRP)):

[[Page 440]]

 
    More than 40 percent of the entire body or more than 40           60
     percent of exposed areas affected, and; constant or near-
     constant systemic medications or intensive light therapy
     required during the past 12-month period...................
    20 to 40 percent of the entire body or 20 to 40 percent of        30
     exposed areas affected, or; systemic therapy or intensive
     light therapy required for a total duration of six weeks or
     more, but not constantly, during the past 12-month period..
    At least 5 percent, but less than 20 percent, of the entire       10
     body, or at least 5 percent, but less than 20 percent, of
     exposed areas affected, or; systemic therapy or intensive
     light therapy required for a total duration of less than
     six weeks during the past 12-month period..................
    Less than 5 percent of the entire body or exposed areas            0
     affected, and; no more than topical therapy required during
     the past 12-month period...................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7823 Vitiligo:
    With exposed areas affected.................................      10
    With no exposed areas affected..............................       0
7824 Diseases of keratinization (including icthyoses, Darier's
 disease, and palmoplantar keratoderma):
    With either generalized cutaneous involvement or systemic         60
     manifestations, and; constant or near-constant systemic
     medication, such as immunosuppressive retinoids, required
     during the past 12-month period............................
    With either generalized cutaneous involvement or systemic         30
     manifestations, and; intermittent systemic medication, such
     as immunosuppressive retinoids, required for a total
     duration of six weeks or more, but not constantly, during
     the past 12-month period...................................
    With localized or episodic cutaneous involvement and              10
     intermittent systemic medication, such as immunosuppressive
     retinoids, required for a total duration of less than six
     weeks during the past 12-month period......................
    No more than topical therapy required during the past 12-          0
     month period...............................................
7825 Urticaria:
    Recurrent debilitating episodes occurring at least four           60
     times during the past 12-month period despite continuous
     immunosuppressive therapy..................................
    Recurrent debilitating episodes occurring at least four           30
     times during the past 12-month period, and; requiring
     intermittent systemic immunosuppressive therapy for control
    Recurrent episodes occurring at least four times during the       10
     past 12-month period, and; responding to treatment with
     antihistamines or sympathomimetics.........................
7826 Vasculitis, primary cutaneous:
    Recurrent debilitating episodes occurring at least four           60
     times during the past 12-month period despite continuous
     immunosuppressive therapy..................................
    Recurrent debilitating episodes occurring at least four           30
     times during the past 12-month period, and; requiring
     intermittent systemic immunosuppressive therapy for control
    Recurrent episodes occurring one to three times during the        10
     past 12-month period, and; requiring intermittent systemic
     immunosuppressive therapy for control......................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7827 Erythema multiforme; Toxic epidermal necrolysis:
    Recurrent debilitating episodes occurring at least four           60
     times during the past 12-month period despite ongoing
     immunosuppressive therapy..................................
    Recurrent episodes occurring at least four times during the       30
     past 12-month period, and; requiring intermittent systemic
     immunosuppressive therapy..................................
    Recurrent episodes occurring during the past 12-month period      10
     that respond to treatment with antihistamines or
     sympathomimetics, or; one to three episodes occurring
     during the past 12-month period requiring intermittent
     systemic immunosuppressive therapy.........................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7828 Acne:
    Deep acne (deep inflamed nodules and pus-filled cysts)            30
     affecting 40 percent or more of the face and neck..........
    Deep acne (deep inflamed nodules and pus-filled cysts)            10
     affecting less than 40 percent of the face and neck, or;
     deep acne other than on the face and neck..................
    Superficial acne (comedones, papules, pustules, superficial        0
     cysts) of any extent.......................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7829 Chloracne:
    Deep acne (deep inflamed nodules and pus-filled cysts)            30
     affecting 40 percent or more of the face and neck..........
    Deep acne (deep inflamed nodules and pus-filled cysts)            10
     affecting less than 40 percent of the face and neck, or;
     deep acne other than on the face and neck..................
    Superficial acne (comedones, papules, pustules, superficial        0
     cysts) of any extent.......................................
    Or rate as disfigurement of the head, face, or neck (DC
     7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805),
     depending upon the predominant disability.
7830 Scarring alopecia:
    Affecting more than 40 percent of the scalp.................      20
    Affecting 20 to 40 percent of the scalp.....................      10
    Affecting less than 20 percent of the scalp.................       0
7831 Alopecia areata:
    With loss of all body hair..................................      10
    With loss of hair limited to scalp and face.................       0
7832 Hyperhidrosis:
    Unable to handle paper or tools because of moisture, and          30
     unresponsive to therapy....................................
    Able to handle paper or tools after therapy.................       0

[[Page 441]]

 
7833 Malignant melanoma:
    Rate as scars (DC's 7801, 7802, 7803, 7804, or 7805),
     disfigurement of the head, face, or neck (DC 7800), or
     impairment of function (under the appropriate body system).
    Note: If a skin malignancy requires therapy that is
     comparable to that used for systemic malignancies, i.e.,
     systemic chemotherapy, X-ray therapy more extensive than to
     the skin, or surgery more extensive than wide local
     excision, a 100-percent evaluation will be assigned from
     the date of onset of treatment, and will continue, with a
     mandatory VA examination six months following the
     completion of such antineoplastic treatment, and any change
     in evaluation based upon that or any subsequent examination
     will be subject to the provisions of Sec. 3.105(e). If
     there has been no local recurrence or metastasis,
     evaluation will then be made on residuals. If treatment is
     confined to the skin, the provisions for a 100-percent
     evaluation do not apply.
------------------------------------------------------------------------


(Authority: 38 U.S.C. 1155)

[67 FR 49596, July 31, 2002; 67 FR 58448, 58449, Sept. 16, 2002]

                          The Endocrine System



Sec. 4.119  Schedule of ratings--endocrine system.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
7900 Hyperthyroidism
  Thyroid enlargement, tachycardia (more than 100 beats per          100
   minute), eye involvement, muscular weakness, loss of weight,
   and sympathetic nervous system, cardiovascular, or
   astrointestinal symptoms.....................................
  Emotional instability, tachycardia, fatigability, and               60
   increased pulse pressure or blood pressure...................
  Tachycardia, tremor, and increased pulse pressure or blood          30
   pressure.....................................................
  Tachycardia, which may be intermittent, and tremor, or;             10
   continuous medication required for control...................
  Note (1): If disease of the heart is the predominant finding,
   evaluate as hyperthyroid heart disease (DC 7008) if doing so
   would result in a higher evaluation than using the criteria
   above.
  Note (2): If ophthalmopathy is the sole finding, evaluate as
   field vision, impairment of (DC 6080); diplopia (DC 6090); or
   impairment of central visual acuity (DC 6061-6079).
7901 Thyroid gland, toxic adenoma of
  Thyroid enlargement, tachycardia (more than 100 beats per          100
   minute), eye involvement, muscular weakness, loss of weight,
   and sympathetic nervous system, cardiovascular, or
   gastrointestinal symptoms....................................
  Emotional instability, tachycardia, fatigability, and               60
   increased pulse pressure or blood pressure...................
  Tachycardia, tremor, and increased pulse pressure or blood          30
   pressure.....................................................
  Tachycardia, which may be intermittent, and tremor, or;             10
   continuous medication required for control...................
  Note (1): If disease of the heart is the predominant finding,
   evaluate as hyperthyroid heart disease (DC 7008) if doing so
   would result in a higher evaluation than using the criteria
   above.
  Note (2): If ophthalmopathy is the sole finding, evaluate as
   field vision, impairment of (DC 6080); diplopia (DC 6090); or
   impairment of central visual acuity (DC 6061-6079).
7902 Thyroid gland, nontoxic adenoma of
  With disfigurement of the head or neck........................      20
  Without disfigurement of the head or neck.....................       0
  Note: If there are symptoms due to pressure on adjacent organs
   such as the trachea, larynx, or esophagus, evaluate under the
   diagnostic code for disability of that organ, if doing so
   would result in a higher evaluation than using this
   diagnostic code.
7903 Hypothyroidism
  Cold intolerance, muscular weakness, cardiovascular                100
   involvement, mental disturbance (dementia, slowing of
   thought, depression), bradycardia (less than 60 beats per
   minute), and sleepiness......................................
  Muscular weakness, mental disturbance, and weight gain........      60
  Fatigability, constipation, and mental sluggishness...........      30
  Fatigability, or; continuous medication required for control..      10
7904 Hyperparathyroidism
  Generalized decalcification of bones, kidney stones,               100
   gastrointestinal symptoms (nausea, vomiting, anorexia,
   constipation, weight loss, or peptic ulcer), and weakness....
  Gastrointestinal symptoms and weakness........................      60
  Continuous medication required for control....................      10
  Note: Following surgery or treatment, evaluate as digestive,
   skeletal, renal, or cardiovascular residuals or as endocrine
   dysfunction.
7905 Hypoparathyroidism
  Marked neuromuscular excitability (such as convulsions,            100
   muscular spasms (tetany), or laryngeal stridor) plus either
   cataract or evidence of increased intracranial pressure (such
   as papilledema)..............................................
  Marked neuromuscular excitability, or; paresthesias (of arms,       60
   legs, or circumoral area) plus either cataract or evidence of
   increased intracranial pressure..............................
  Continuous medication required for control....................      10
7907 Cushing's syndrome
  As active, progressive disease including loss of muscle            100
   strength, areas of osteoporosis, hypertension, weakness, and
   enlargement of pituitary or adrenal gland....................
  Loss of muscle strength and enlargement of pituitary or             60
   adrenal gland................................................
  With striae, obesity, moon face, glucose intolerance, and           30
   vascular fragility...........................................
  Note: With recovery or control, evaluate as residuals of
   adrenal insufficiency or cardiovascular, psychiatric, skin,
   or skeletal complications under appropriate diagnostic code.
7908 Acromegaly
  Evidence of increased intracranial pressure (such as visual        100
   field defect), arthropathy, glucose intolerance, and either
   hypertension or cardiomegaly.................................
  Arthropathy, glucose intolerance, and hypertension............      60

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  Enlargement of acral parts or overgrowth of long bones, and         30
   enlarged sella turcica.......................................
7909 Diabetes insipidus
  Polyuria with near-continuous thirst, and more than two            100
   documented episodes of dehydration requiring parenteral
   hydration in the past year...................................
  Polyuria with near-continuous thirst, and one or two                60
   documented episodes of dehydration requiring parenteral
   hydration in the past year...................................
  Polyuria with near-continuous thirst, and one or more episodes      40
   of dehydration in the past year not requiring parenteral
   hydration....................................................
  Polyuria with near-continuous thirst..........................      20
7911 Addison's disease (Adrenal Cortical Hypofunction)
  Four or more crises during the past year......................      60
  Three crises during the past year, or; five or more episodes        40
   during the past year.........................................
  One or two crises during the past year, or; two to four             20
   episodes during the past year, or; weakness and fatigability,
   or; corticosteroid therapy required for control..............
  Note (1): An Addisonian ``crisis'' consists of the rapid onset
   of peripheral vascular collapse (with acute hypotension and
   shock), with findings that may include: anorexia; nausea;
   vomiting; dehydration; profound weakness; pain in abdomen,
   legs, and back; fever; apathy, and depressed mentation with
   possible progression to coma, renal shutdown, and death.
  Note (2): An Addisonian ``episode,'' for VA purposes, is a
   less acute and less severe event than an Addisonian crisis
   and may consist of anorexia, nausea, vomiting, diarrhea,
   dehydration, weakness, malaise, orthostatic hypotension, or
   hypoglycemia, but no peripheral vascular collapse.
  Note (3): Tuberculous Addison's disease will be evaluated as
   active or inactive tuberculosis. If inactive, these
   evaluations are not to be combined with the graduated ratings
   of 50 percent or 30 percent for non-pulmonary tuberculosis
   specified under Sec. 4.88b. Assign the higher rating.
7912 Pluriglandular syndrome
  Evaluate according to major manifestations.
7913 Diabetes mellitus
  Requiring more than one daily injection of insulin, restricted     100
   diet, and regulation of activities (avoidance of strenuous
   occupational and recreational activities) with episodes of
   ketoacidosis or hypoglycemic reactions requiring at least
   three hospitalizations per year or weekly visits to a
   diabetic care provider, plus either progressive loss of
   weight and strength or complications that would be
   compensable if separately evaluated..........................
  Requiring insulin, restricted diet, and regulation of               60
   activities with episodes of ketoacidosis or hypoglycemic
   reactions requiring one or two hospitalizations per year or
   twice a month visits to a diabetic care provider, plus
   complications that would not be compensable if separately
   evaluated....................................................
  Requiring insulin, restricted diet, and regulation of               40
   activities...................................................
  Requiring insulin and restricted diet, or; oral hypoglycemic        20
   agent and restricted diet....................................
  Manageable by restricted diet only............................      10
  Note (1): Evaluate compensable complications of diabetes
   separately unless they are part of the criteria used to
   support a 100 percent evaluation. Noncompensable
   complications are considered part of the diabetic process
   under diagnostic code 7913.
  Note (2): When diabetes mellitus has been conclusively
   diagnosed, do not request a glucose tolerance test solely for
   rating purposes.
7914 Neoplasm, malignant, any specified part of the endocrine        100
 system.........................................................
  Note: A rating of 100 percent shall continue beyond the
   cessation of any surgical, X-ray, antineoplastic chemotherapy
   or other therapeutic procedure. Six months after
   discontinuance of such treatment, the appropriate disability
   rating shall be determined by mandatory VA examination. Any
   change in evaluation based upon that or any subsequent
   examination shall be subject to the provisions of Sec.
   3.105(e) of this chapter. If there has been no local
   recurrence or metastasis, rate on residuals.
7915 Neoplasm, benign, any specified part of the endocrine
 system rate as residuals of endocrine dysfunction.
7916 Hyperpituitarism (prolactin secreting pituitary
 dysfunction)
7917 Hyperaldosteronism (benign or malignant)
7918 Pheochromocytoma (benign or malignant)
  Note: Evaluate diagnostic codes 7916, 7917, and 7918 as
   malignant or benign neoplasm as appropriate.
7919 C-cell hyperplasia of the thyroid..........................     100
  Note: A rating of 100 percent shall continue beyond the
   cessation of any surgical, X-ray, antineoplastic chemotherapy
   or other therapeutic procedure. Six months after
   discontinuance of such treatment, the appropriate disability
   rating shall be determined by mandatory VA examination. Any
   change in evaluation based upon that or any subsequent
   examination shall be subject to the provisions of Sec.
   3.105(e) of this chapter. If there has been no local
   recurrence or metastasis, rate on residuals.
------------------------------------------------------------------------


[61 FR 20446, May 7, 1996]

            Neurological Conditions and Convulsive Disorders



Sec. 4.120  Evaluations by comparison.

    Disability in this field is ordinarily to be rated in proportion to 
the impairment of motor, sensory or mental function. Consider especially 
psychotic manifestations, complete or partial loss of use of one or more 
extremities, speech disturbances, impairment of vision, disturbances of 
gait, tremors, visceral manifestations, injury to the skull, etc. In 
rating disability from the conditions in the preceding sentence refer to 
the appropriate schedule. In rating peripheral nerve injuries and their 
residuals, attention should be

[[Page 443]]

given to the site and character of the injury, the relative impairment 
in motor function, trophic changes, or sensory disturbances.



Sec. 4.121  Identification of epilepsy.

    When there is doubt as to the true nature of epileptiform attacks, 
neurological observation in a hospital adequate to make such a study is 
necessary. To warrant a rating for epilepsy, the seizures must be 
witnessed or verified at some time by a physician. As to frequency, 
competent, consistent lay testimony emphasizing convulsive and immediate 
post-convulsive characteristics may be accepted. The frequency of 
seizures should be ascertained under the ordinary conditions of life 
(while not hospitalized).



Sec. 4.122  Psychomotor epilepsy.

    The term psychomotor epilepsy refers to a condition that is 
characterized by seizures and not uncommonly by a chronic psychiatric 
disturbance as well.
    (a) Psychomotor seizures consist of episodic alterations in 
conscious control that may be associated with automatic states, 
generalized convulsions, random motor movements (chewing, lip smacking, 
fumbling), hallucinatory phenomena (involving taste, smell, sound, 
vision), perceptual illusions (deja vu, feelings of loneliness, 
strangeness, macropsia, micropsia, dreamy states), alterations in 
thinking (not open to reason), alterations in memory, abnormalities of 
mood or affect (fear, alarm, terror, anger, dread, well-being), and 
autonomic disturbances (sweating, pallor, flushing of the face, visceral 
phenomena such as nausea, vomiting, defecation, a rising feeling of 
warmth in the abdomen). Automatic states or automatisms are 
characterized by episodes of irrational, irrelevant, disjointed, 
unconventional, asocial, purposeless though seemingly coordinated and 
purposeful, confused or inappropriate activity of one to several minutes 
(or, infrequently, hours) duration with subsequent amnesia for the 
seizure. Examples: A person of high social standing remained seated, 
muttered angrily, and rubbed the arms of his chair while the National 
Anthem was being played; an apparently normal person suddenly disrobed 
in public; a man traded an expensive automobile for an antiquated 
automobile in poor mechanical condition and after regaining conscious 
control, discovered that he had signed an agreement to pay an additional 
sum of money in the trade. The seizure manifestations of psychomotor 
epilepsy vary from patient to patient and in the same patient from 
seizure to seizure.
    (b) A chronic mental disorder is not uncommon as an interseizure 
manifestation of psychomotor epilepsy and may include psychiatric 
disturbances extending from minimal anxiety to severe personality 
disorder (as distinguished from developmental) or almost complete 
personality disintegration (psychosis). The manifestations of a chronic 
mental disorder associated with psychomotor epilepsy, like those of the 
seizures, are protean in character.



Sec. 4.123  Neuritis, cranial or peripheral.

    Neuritis, cranial or peripheral, characterized by loss of reflexes, 
muscle atrophy, sensory disturbances, and constant pain, at times 
excruciating, is to be rated on the scale provided for injury of the 
nerve involved, with a maximum equal to severe, incomplete, paralysis. 
See nerve involved for diagnostic code number and rating. The maximum 
rating which may be assigned for neuritis not characterized by organic 
changes referred to in this section will be that for moderate, or with 
sciatic nerve involvement, for moderately severe, incomplete paralysis.



Sec. 4.124  Neuralgia, cranial or peripheral.

    Neuralgia, cranial or peripheral, characterized usually by a dull 
and intermittent pain, of typical distribution so as to identify the 
nerve, is to be rated on the same scale, with a maximum equal to 
moderate incomplete paralysis. See nerve involved for diagnostic code 
number and rating. Tic douloureux, or trifacial neuralgia, may be rated 
up to complete paralysis of the affected nerve.

[[Page 444]]



Sec. 4.124a  Schedule of ratings--neurological conditions and convulsive 
disorders.

[With the exceptions noted, disability from the following diseases and 
their residuals may be rated from 10 percent to 100 percent in 
proportion to the impairment of motor, sensory, or mental function. 
Consider especially psychotic manifestations, complete or partial loss 
of use of one or more extremities, speech disturbances, impairment of 
vision, disturbances of gait, tremors, visceral manifestations, etc., 
referring to the appropriate bodily system of the schedule. With partial 
loss of use of one or more extremities from neurological lesions, rate 
by comparison with the mild, moderate, severe, or complete paralysis of 
peripheral nerves]

             Organic Diseases of the Central Nervous System
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
8000 Encephalitis, epidemic, chronic:
  As active febrile disease.....................................     100
  Rate residuals, minimum.......................................      10
  Brain, new growth of:
8002 Malignant..................................................     100
  Note: The rating in code 8002 will be continued for 2 years
   following cessation of surgical, chemotherapeutic or other
   treatment modality. At this point, if the residuals have
   stabilized, the rating will be made on neurological residuals
   according to symptomatology.
  Minimum rating................................................      30
8003 Benign, minimum............................................      60
  Rate residuals, minimum.......................................      10
8004 Paralysis agitans:
  Minimum rating................................................      30
8005 Bulbar palsy...............................................     100
8007 Brain, vessels, embolism of.
8008 Brain, vessels, thrombosis of.
8009 Brain, vessels, hemorrhage from:
  Rate the vascular conditions under Codes 8007 through 8009,        100
   for 6 months.................................................
  Rate residuals, thereafter, minimum...........................      10
8010 Myelitis:
  Minimum rating................................................      10
8011 Poliomyelitis, anterior:
  As active febrile disease.....................................     100
  Rate residuals, minimum.......................................      10
8012 Hematomyelia:
  For 6 months..................................................     100
  Rate residuals, minimum.......................................      10
8013 Syphilis, cerebrospinal.
8014 Syphilis, meningovascular.
8015 Tabes dorsalis.
  Note: Rate upon the severity of convulsions, paralysis, visual
   impairment or psychotic involvement, etc.
8017 Amyotrophic lateral sclerosis:
  Minimum rating................................................      30
8018 Multiple sclerosis:
  Minimum rating................................................      30
8019 Meningitis, cerebrospinal, epidemic:
  As active febrile disease.....................................     100
  Rate residuals, minimum.......................................      10
8020 Brain, abscess of:
  As active disease.............................................     100
  Rate residuals, minimum.......................................      10
  Spinal cord, new growths of:..................................
8021 Malignant..................................................     100
  Note: The rating in code 8021 will be continued for 2 years
   following cessation of surgical, chemotherapeutic or other
   treatment modality. At this point, if the residuals have
   stabilized, the rating will be made on neurological residuals
   according to symptomatology.
  Minimum rating................................................      30
8022 Benign, minimum rating.....................................      60
  Rate residuals, minimum.......................................      10
8023 Progressive muscular atrophy:
  Minimum rating................................................      30
8024 Syringomyelia:
  Minimum rating................................................      30
8025 Myasthenia gravis:
  Minimum rating................................................      30
  Note: It is required for the minimum ratings for residuals
   under diagnostic codes 8000-8025, that there be ascertainable
   residuals. Determinations as to the presence of residuals not
   capable of objective verification, i.e., headaches,
   dizziness, fatigability, must be approached on the basis of
   the diagnosis recorded; subjective residuals will be accepted
   when consistent with the disease and not more likely
   attributable to other disease or no disease. It is of
   exceptional importance that when ratings in excess of the
   prescribed minimum ratings are assigned, the diagnostic codes
   utilized as bases of evaluation be cited, in addition to the
   codes identifying the diagnoses.
8045 Brain disease due to trauma:
  Purely neurological disabilities, such as hemiplegia,
   epileptiform seizures, facial nerve paralysis, etc.,
   following trauma to the brain, will be rated under the
   diagnostic codes specifically dealing with such disabilities,
   with citation of a hyphenated diagnostic code (e.g., 8045-
   8207).
  Purely subjective complaints such as headache, dizziness,
   insomnia, etc., recognized as symptomatic of brain trauma,
   will be rated 10 percent and no more under diagnostic code
   9304. This 10 percent rating will not be combined with any
   other rating for a disability due to brain trauma. Ratings in
   excess of 10 percent for brain disease due to trauma under
   diagnostic code 9304 are not assignable in the absence of a
   diagnosis of multi-infarct dementia associated with brain
   trauma.
8046 Cerebral arteriosclerosis:

[[Page 445]]

 
  Purely neurological disabilities, such as hemiplegia, cranial
   nerve paralysis, etc., due to cerebral arteriosclerosis will
   be rated under the diagnostic codes dealing with such
   specific disabilities, with citation of a hyphenated
   diagnostic code (e.g., 8046-8207).
  Purely subjective complaints such as headache, dizziness,
   tinnitus, insomnia and irritability, recognized as
   symptomatic of a properly diagnosed cerebral
   arteriosclerosis, will be rated 10 percent and no more under
   diagnostic code 9305. This 10 percent rating will not be
   combined with any other rating for a disability due to
   cerebral or generalized arteriosclerosis. Ratings in excess
   of 10 percent for cerebral arteriosclerosis under diagnostic
   code 9305 are not assignable in the absence of a diagnosis of
   multi-infarct dementia with cerebral arteriosclerosis.
  Note: The ratings under code 8046 apply only when the
   diagnosis of cerebral arteriosclerosis is substantiated by
   the entire clinical picture and not solely on findings of
   retinal arteriosclerosis.
------------------------------------------------------------------------


                         Miscellaneous Diseases
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
8100 Migraine:
  With very frequent completely prostrating and prolonged             50
   attacks productive of severe economic inadaptability.........
  With characteristic prostrating attacks occurring on an             30
   average once a month over last several months................
  With characteristic prostrating attacks averaging one in 2          10
   months over last several months..............................
  With less frequent attacks....................................       0
8103 Tic, convulsive:
  Severe........................................................      30
  Moderate......................................................      10
  Mild..........................................................       0
  Note: Depending upon frequency, severity, muscle groups
   involved.
8104 Paramyoclonus multiplex (convulsive state, myoclonic type):
  Rate as tic; convulsive; severe cases.........................      60
8105 Chorea, Sydenham's:
  Pronounced, progressive grave types...........................     100
  Severe........................................................      80
  Moderately severe.............................................      50
  Moderate......................................................      30
  Mild..........................................................      10
  Note: Consider rheumatic etiology and complications.
8106 Chorea, Huntington's.
  Rate as Sydenham's chorea. This, though a familial disease,
   has its onset in late adult life, and is considered a ratable
   disability.
8107 Athetosis, acquired.
  Rate as chorea.
8108 Narcolepsy.
  Rate as for epilepsy, petit mal.
------------------------------------------------------------------------


                     Diseases of the Cranial Nerves
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
  Disability from lesions of peripheral portions of first,
   second, third, fourth, sixth, and eighth nerves will be rated
   under the Organs of Special Sense. The ratings for the
   cranial nerves are for unilateral involvement; when
   bilateral, combine but without the bilateral factor.
  Fifth (trigeminal) cranial nerve
8205 Paralysis of:
  Complete......................................................      50
  Incomplete, severe............................................      30
  Incomplete, moderate..........................................      10
  Note: Dependent upon relative degree of sensory manifestation
   or motor loss.
8305 Neuritis.
8405 Neuralgia.
  Note: Tic douloureux may be rated in accordance with severity,
   up to complete paralysis.
  Seventh (facial) cranial nerve
8207 Paralysis of:
    Complete....................................................      30
    Incomplete, severe..........................................      20
    Incomplete, moderate........................................      10
  Note: Dependent upon relative loss of innervation of facial
   muscles.
8307 Neuritis.
8407 Neuralgia.
  Ninth (glossopharyngeal) cranial nerve........................
8209 Paralysis of:
  Complete......................................................      30
  Incomplete, severe............................................      20
  Incomplete, moderate..........................................      10
  Note: Dependent upon relative loss of ordinary sensation in
   mucous membrane of the pharynx, fauces, and tonsils.
8309 Neuritis.
8409 Neuralgia.
  Tenth (pneumogastric, vagus) cranial nerve....................
8210 Paralysis of:
  Complete......................................................      50
  Incomplete, severe............................................      30
  Incomplete, moderate..........................................      10
  Note : Dependent upon extent of sensory and motor loss to
   organs of voice, respiration, pharynx, stomach and heart.
8310 Neuritis.
8410 Neuralgia.
  Eleventh (spinal accessory, external branch) cranial nerve.
8211 Paralysis of:
  Complete......................................................      30
  Incomplete, severe............................................      20
  Incomplete, moderate..........................................      10
  Note: Dependent upon loss of motor function of sternomastoid
   and trapezius muscles.
8311 Neuritis.
8411 Neuralgia.
  Twelfth (hypoglossal) cranial nerve.
8212 Paralysis of:
  Complete......................................................      50
  Incomplete, severe............................................      30
  Incomplete, moderate..........................................      10
  Note: Dependent upon loss of motor function of tongue.
8312 Neuritis.
8412 Neuralgia.
------------------------------------------------------------------------


[[Page 446]]


                    Diseases of the Peripheral Nerves
------------------------------------------------------------------------
                                                             Rating
                  Schedule of ratings                  -----------------
                                                         Major    Minor
------------------------------------------------------------------------
The term ``incomplete paralysis,'' with this and other
 peripheral nerve injuries, indicates a degree of lost
 or impaired function substantially less than the type
 picture for complete paralysis given with each nerve,
 whether due to varied level of the nerve lesion or to
 partial regeneration. When the involvement is wholly
 sensory, the rating should be for the mild, or at
 most, the moderate degree. The ratings for the
 peripheral nerves are for unilateral involvement;
 when bilateral, combine with application of the
 bilateral factor.
   Upper radicular group (fifth and sixth cervicals)
 
8510 Paralysis of:
  Complete; all shoulder and elbow movements lost or         70       60
   severely affected, hand and wrist movements not
   affected...........................................
  Incomplete:
    Severe............................................       50       40
    Moderate..........................................       40       30
    Mild..............................................       20       20
8610 Neuritis.
8710 Neuralgia.
 
                Middle radicular group
 
8511 Paralysis of:
  Complete; adduction, abduction and rotation of arm,        70       60
   flexion of elbow, and extension of wrist lost or
   severely affected..................................
  Incomplete:
    Severe............................................       50       40
    Moderate..........................................       40       30
    Mild..............................................       20       20
8611 Neuritis.
8711 Neuralgia.
 
                 Lower radicular group
 
8512 Paralysis of:
  Complete; all intrinsic muscles of hand, and some or       70       60
   all of flexors of wrist and fingers, paralyzed
   (substantial loss of use of hand)..................
  Incomplete:
    Severe............................................       50       40
    Moderate..........................................       40       30
    Mild..............................................       20       20
8612 Neuritis.
8712 Neuralgia.
 
                 All radicular groups
 
8513 Paralysis of:
  Complete............................................       90       80
  Incomplete:
    Severe............................................       70       60
    Moderate..........................................       40       30
    Mild..............................................       20       20
8613 Neuritis.
8713 Neuralgia.
 
        The musculospiral nerve (radial nerve)
 
8514 Paralysis of:
  Complete; drop of hand and fingers, wrist and              70       60
   fingers perpetually flexed, the thumb adducted
   falling within the line of the outer border of the
   index finger; can not extend hand at wrist, extend
   proximal phalanges of fingers, extend thumb, or
   make lateral movement of wrist; supination of hand,
   extension and flexion of elbow weakened, the loss
   of synergic motion of extensors impairs the hand
   grip seriously; total paralysis of the triceps
   occurs only as the greatest rarity.................
  Incomplete:
    Severe............................................       50       40
    Moderate..........................................       30       20
    Mild..............................................       20       20
8614 Neuritis.
8714 Neuralgia.
 
  Note: Lesions involving only ``dissociation of extensor communis
   digitorum'' and ``paralysis below the extensor communis digitorum,''
   will not exceed the moderate rating under code 8514.
 
                   The median nerve
 
8515 Paralysis of:
  Complete; the hand inclined to the ulnar side, the         70       60
   index and middle fingers more extended than
   normally, considerable atrophy of the muscles of
   the thenar eminence, the thumb in the plane of the
   hand (ape hand); pronation incomplete and
   defective, absence of flexion of index finger and
   feeble flexion of middle finger, cannot make a
   fist, index and middle fingers remain extended;
   cannot flex distal phalanx of thumb, defective
   opposition and abduction of the thumb, at right
   angles to palm; flexion of wrist weakened; pain
   with trophic disturbances..........................
  Incomplete:
    Severe............................................       50       40
    Moderate..........................................       30       20
    Mild..............................................       10       10
8615 Neuritis.
8715 Neuralgia.
 
                    The ulnar nerve
 
8516 Paralysis of:
  Complete; the ``griffin claw'' deformity, due to           60       50
   flexor contraction of ring and little fingers,
   atrophy very marked in dorsal interspace and thenar
   and hypothenar eminences; loss of extension of ring
   and little fingers cannot spread the fingers (or
   reverse), cannot adduct the thumb; flexion of wrist
   weakened...........................................
  Incomplete:
    Severe............................................       40       30
    Moderate..........................................       30       20
    Mild..............................................       10       10

[[Page 447]]

 
8616 Neuritis.
8716 Neuralgia.
 
                Musculocutaneous nerve
 
8517 Paralysis of:
  Complete; weakness but not loss of flexion of elbow        30       20
   and supination of forearm..........................
  Incomplete:
    Severe............................................       20       20
    Moderate..........................................       10       10
    Mild..............................................        0        0
8617 Neuritis.
8717 Neuralgia.
 
                   Circumflex nerve
 
8518 Paralysis of:
  Complete; abduction of arm is impossible, outward          50       40
   rotation is weakened; muscles supplied are deltoid
   and teres minor....................................
  Incomplete:
    Severe............................................       30       20
    Moderate..........................................       10       10
    Mild..............................................        0        0
8618 Neuritis.
8718 Neuralgia.
 
                  Long thoracic nerve
 
8519 Paralysis of:
  Complete; inability to raise arm above shoulder            30       20
   level, winged scapula deformity....................
  Incomplete:
    Severe............................................       20       20
    Moderate..........................................       10       10
    Mild..............................................        0        0
 
  Note: Not to be combined with lost motion above shoulder level.
 
8619 Neuritis.
8719 Neuralgia.
 
  Note: Combined nerve injuries should be rated by reference to the
   major involvement, or if sufficient in extent, consider radicular
   group ratings.
------------------------------------------------------------------------


------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
                         Sciatic nerve
 
8520 Paralysis of:
  Complete; the foot dangles and drops, no active movement            80
   possible of muscles below the knee, flexion of knee weakened
   or (very rarely) lost.......................................
  Incomplete:
    Severe, with marked muscular atrophy.......................       60
    Moderately severe..........................................       40
    Moderate...................................................       20
    Mild.......................................................       10
8620 Neuritis.
8720 Neuralgia.
 
           External popliteal nerve (common peroneal)
 
8521 Paralysis of:
  Complete; foot drop and slight droop of first phalanges of          40
   all toes, cannot dorsiflex the foot, extension (dorsal
   flexion) of proximal phalanges of toes lost; abduction of
   foot lost, adduction weakened; anesthesia covers entire
   dorsum of foot and toes.....................................
  Incomplete:
    Severe.....................................................       30
    Moderate...................................................       20
    Mild.......................................................       10
8621 Neuritis.
8721 Neuralgia.
 
         Musculocutaneous nerve (superficial peroneal)
 
8522 Paralysis of:
  Complete; eversion of foot weakened..........................       30
  Incomplete:
    Severe.....................................................       20
    Moderate...................................................       10
    Mild.......................................................        0
8622 Neuritis.
8722 Neuralgia.
 
             Anterior tibial nerve (deep peroneal)
 
8523 Paralysis of:
  Complete; dorsal flexion of foot lost........................       30
  Incomplete:
    Severe.....................................................       20
    Moderate...................................................       10
    Mild.......................................................        0
8623 Neuritis.
8723 Neuralgia.
 
               Internal popliteal nerve (tibial)
 
8524 Paralysis of:
  Complete; plantar flexion lost, frank adduction of foot             40
   impossible, flexion and separation of toes abolished; no
   muscle in sole can move; in lesions of the nerve high in
   popliteal fossa, plantar flexion of foot is lost............
  Incomplete:
    Severe.....................................................       30
    Moderate...................................................       20
    Mild.......................................................       10
8624 Neuritis.
8724 Neuralgia.
 
                     Posterior tibial nerve
 
8525 Paralysis of:
  Complete; paralysis of all muscles of sole of foot,                 30
   frequently with painful paralysis of a causalgic nature;
   toes cannot be flexed; adduction is weakened; plantar
   flexion is impaired.........................................
  Incomplete:
    Severe.....................................................       20
    Moderate...................................................       10

[[Page 448]]

 
    Mild.......................................................       10
8625 Neuritis.
8725 Neuralgia.
 
                Anterior crural nerve (femoral)
 
8526 Paralysis of:
  Complete; paralysis of quadriceps extensor muscles...........       40
  Incomplete:
    Severe.....................................................       30
    Moderate...................................................       20
    Mild.......................................................       10
8626 Neuritis.
8726 Neuralgia.
 
                    Internal saphenous nerve
 
8527 Paralysis of:
  Severe to complete...........................................       10
  Mild to moderate.............................................        0
8627 Neuritis.
8727 Neuralgia.
 
                        Obturator nerve
 
8528 Paralysis of:
  Severe to complete...........................................       10
  Mild or moderate.............................................        0
8628 Neuritis.
8728 Neuralgia.
 
               External cutaneous nerve of thigh
 
8529 Paralysis of:
  Severe to complete...........................................       10
  Mild or moderate.............................................        0
8629 Neuritis.
8729 Neuralgia.
 
                      Ilio-inguinal nerve
 
8530 Paralysis of:
  Severe to complete...........................................       10
  Mild or moderate.............................................        0
8630 Neuritis.
8730 Neuralgia.
8540 Soft-tissue sarcoma (of neurogenic origin)................      100
 
  Note: The 100 percent rating will be continued for 6 months following
   the cessation of surgical, X-ray, antineoplastic chemotherapy or
   other therapeutic procedure. At this point, if there has been no
   local recurrence or metastases, the rating will be made on residuals.
------------------------------------------------------------------------


                             The Epilepsies
------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
  A thorough study of all material in Sec. Sec. 4.121 and
   4.122 of the preface and under the ratings for epilepsy is
   necessary prior to any rating action.
8910 Epilepsy, grand mal.
  Rate under the general rating formula for major seizures.
8911 Epilepsy, petit mal.
  Rate under the general rating formula for minor seizures.
  Note (1): A major seizure is characterized by the generalized
   tonic-clonic convulsion with unconsciousness.
  Note (2): A minor seizure consists of a brief interruption in
   consciousness or conscious control associated with staring or
   rhythmic blinking of the eyes or nodding of the head
   (``pure'' petit mal), or sudden jerking movements of the
   arms, trunk, or head (myoclonic type) or sudden loss of
   postural control (akinetic type).
  General Rating Formula for Major and Minor Epileptic Seizures:
    Averaging at least 1 major seizure per month over the last       100
     year.......................................................
    Averaging at least 1 major seizure in 3 months over the last      80
     year; or more than 10 minor seizures weekly................
    Averaging at least 1 major seizure in 4 months over the last      60
     year; or 9-10 minor seizures per week......................
    At least 1 major seizure in the last 6 months or 2 in the         40
     last year; or averaging at least 5 to 8 minor seizures
     weekly.....................................................
    At least 1 major seizure in the last 2 years; or at least 2       20
     minor seizures in the last 6 months........................
    A confirmed diagnosis of epilepsy with a history of seizures      10
  Note (1): When continuous medication is shown necessary for
   the control of epilepsy, the minimum evaluation will be 10
   percent. This rating will not be combined with any other
   rating for epilepsy.
  Note (2): In the presence of major and minor seizures, rate
   the predominating type.
  Note (3): There will be no distinction between diurnal and
   nocturnal major seizures.
8912 Epilepsy, Jacksonian and focal motor or sensory.
8913 Epilepsy, diencephalic.
  Rate as minor seizures, except in the presence of major and
   minor seizures, rate the predominating type.
8914 Epilepsy, psychomotor.
  Major seizures:
    Psychomotor seizures will be rated as major seizures under
     the general rating formula when characterized by automatic
     states and/or generalized convulsions with unconsciousness.
  Minor seizures:
    Psychomotor seizures will be rated as minor seizures under
     the general rating formula when characterized by brief
     transient episodes of random motor movements,
     hallucinations, perceptual illusions, abnormalities of
     thinking, memory or mood, or autonomic disturbances.
------------------------------------------------------------------------
Mental Disorders in Epilepsies: A nonpsychotic organic brain syndrome
  will be rated separately under the appropriate diagnostic code (e.g.,
  9304 or 9307). In the absence of a diagnosis of non-psychotic organic
  psychiatric disturbance (psychotic, psychoneurotic or personality
  disorder) if diagnosed and shown to be secondary to or directly
  associated with epilepsy will be rated separately. The psychotic or
  psychroneurotic disorder will be rated under the appropriate
  diagnostic code. The personality disorder will be rated as a dementia
  (e.g., diagnostic code 9304 or 9307).

[[Page 449]]

 
Epilepsy and Unemployability: (1) Rating specialists must bear in mind
  that the epileptic, although his or her seizures are controlled, may
  find employment and rehabilitation difficult of attainment due to
  employer reluctance to the hiring of the epileptic.
(2) Where a case is encountered with a definite history of unemployment,
  full and complete development should be undertaken to ascertain
  whether the epilepsy is the determining factor in his or her inability
  to obtain employment.
(3) The assent of the claimant should first be obtained for permission
  to conduct this economic and social survey. The purpose of this survey
  is to secure all the relevant facts and data necessary to permit of a
  true judgment as to the reason for his or her unemployment and should
  include information as to:
(a) Education;
(b) Occupations prior and subsequent to service;
(c) Places of employment and reasons for termination;
(d) Wages received;
(e) Number of seizures.
(4) Upon completion of this survey and current examination, the case
  should have rating board consideration. Where in the judgment of the
  rating board the veteran's unemployability is due to epilepsy and
  jurisdiction is not vested in that body by reason of schedular
  evaluations, the case should be submitted to the Director,
  Compensation and Pension Service.


(Authority: 38 U.S.C. 1155)

[29 FR 6718, May 22, 1964, as amended at 40 FR 42540, Sept. 15, 1975; 41 
FR 11302, Mar. 18, 1976; 43 FR 45362, Oct. 2, 1978; 54 FR 4282, Jan. 30, 
1989; 54 FR 49755, Dec. 1, 1989; 55 FR 154, Jan. 3, 1990; 56 FR 51653, 
Oct. 15, 1991; 57 FR 24364, June 9, 1992]

                            Mental Disorders



Sec. 4.125  Diagnosis of mental disorders.

    (a) If the diagnosis of a mental disorder does not conform to DSM-IV 
or is not supported by the findings on the examination report, the 
rating agency shall return the report to the examiner to substantiate 
the diagnosis.
    (b) If the diagnosis of a mental disorder is changed, the rating 
agency shall determine whether the new diagnosis represents progression 
of the prior diagnosis, correction of an error in the prior diagnosis, 
or development of a new and separate condition. If it is not clear from 
the available records what the change of diagnosis represents, the 
rating agency shall return the report to the examiner for a 
determination.

(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]



Sec. 4.126  Evaluation of disability from mental disorders.

    (a) When evaluating a mental disorder, the rating agency shall 
consider the frequency, severity, and duration of psychiatric symptoms, 
the length of remissions, and the veteran's capacity for adjustment 
during periods of remission. The rating agency shall assign an 
evaluation based on all the evidence of record that bears on 
occupational and social impairment rather than solely on the examiner's 
assessment of the level of disability at the moment of the examination.
    (b) When evaluating the level of disability from a mental disorder, 
the rating agency will consider the extent of social impairment, but 
shall not assign an evaluation solely on the basis of social impairment.
    (c) Delirium, dementia, and amnestic and other cognitive disorders 
shall be evaluated under the general rating formula for mental 
disorders; neurologic deficits or other impairments stemming from the 
same etiology (e.g., a head injury) shall be evaluated separately and 
combined with the evaluation for delirium, dementia, or amnestic or 
other cognitive disorder (see Sec. 4.25).
    (d) When a single disability has been diagnosed both as a physical 
condition and as a mental disorder, the rating agency shall evaluate it 
using a diagnostic code which represents the dominant (more disabling) 
aspect of the condition (see Sec. 4.14).

(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]



Sec. 4.127  Mental retardation and personality disorders.

    Mental retardation and personality disorders are not diseases or 
injuries for compensation purposes, and, except as provided in Sec. 
3.310(a) of this chapter, disability resulting from them may not be 
service-connected. However, disability resulting from a mental disorder 
that is superimposed upon mental retardation or a personality disorder 
may be service-connected.

(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]



Sec. 4.128  Convalescence ratings following extended hospitalization.

    If a mental disorder has been assigned a total evaluation due to a 
continuous period of hospitalization lasting six months or more, the 
rating agency shall continue the total evaluation indefinitely and 
schedule a mandatory examination six months after the veteran is 
discharged or released to

[[Page 450]]

nonbed care. A change in evaluation based on that or any subsequent 
examination shall be subject to the provisions of Sec. 3.105(e) of this 
chapter.

(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]



Sec. 4.129  Mental disorders due to traumatic stress.

    When a mental disorder that develops in service as a result of a 
highly stressful event is severe enough to bring about the veteran's 
release from active military service, the rating agency shall assign an 
evaluation of not less than 50 percent and schedule an examination 
within the six month period following the veteran's discharge to 
determine whether a change in evaluation is warranted.

(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]



Sec. 4.130  Schedule of ratings--mental disorders.

    The nomenclature employed in this portion of the rating schedule is 
based upon the Diagnostic and Statistical Manual of Mental Disorders, 
Fourth Edition, of the American Psychiatric Association (DSM-IV). Rating 
agencies must be thoroughly familiar with this manual to properly 
implement the directives in Sec. 4.125 through Sec. 4.129 and to apply 
the general rating formula for mental disorders in Sec. 4.130. The 
schedule for rating for mental disorders is set forth as follows:

------------------------------------------------------------------------
                                                                Rating
------------------------------------------------------------------------
               Schizophrenia and Other Psychotic Disorders
------------------------------------------------------------------------
9201 Schizophrenia, disorganized type
9202 Schizophrenia, catatonic type
9203 Schizophrenia, paranoid type
9204 Schizophrenia, undifferentiated type
9205 Schizophrenia, residual type; other and unspecified
 types
9208 Delusional disorder
9210 Psychotic disorder, not otherwise specified (atypical
 psychosis)
9211 Schizoaffective disorder
------------------------------------------------------------
     Delirium, Dementia, and Amnestic and Other Cognitive Disorders
------------------------------------------------------------------------
9300 Delirium
9301 Dementia due to infection (HIV infection, syphilis, or
 other systemic or intracranial infections)
9304 Dementia due to head trauma
9305 Vascular dementia
9310 Dementia of unknown etiology
9312 Dementia of the Alzheimer's type
9326 Dementia due to other neurologic or general medical
 conditions (endocrine disorders, metabolic disorders,
 Pick's disease, brain tumors, etc.) or that are substance-
 induced (drugs, alcohol, poisons)
9327 Organic mental disorder, other (including personality
 change due to a general medical condition)
------------------------------------------------------------
                            Anxiety Disorders
------------------------------------------------------------------------
9400 Generalized anxiety disorder
9403 Specific (simple) phobia; social phobia
9404 Obsessive compulsive disorder
9410 Other and unspecified neurosis
9411 Post-traumatic stress disorder
9412 Panic disorder and/or agoraphobia
9413 Anxiety disorder, not otherwise specified
------------------------------------------------------------
                         Dissociative Disorders
------------------------------------------------------------------------
9416 Dissociative amnesia; dissociative fugue; dissociative
 identity disorder (multiple personality disorder)
9417 Depersonalization disorder
------------------------------------------------------------
                          Somatoform Disorders
------------------------------------------------------------------------
9421 Somatization disorder
9422 Pain disorder
9423 Undifferentiated somatoform disorder
9424 Conversion disorder
9425 Hypochondriasis
------------------------------------------------------------

[[Page 451]]

 
                             Mood Disorders
------------------------------------------------------------------------
9431 Cyclothymic disorder
9432 Bipolar disorder
9433 Dysthymic disorder
9434 Major depressive disorder
9435 Mood disorder, not otherwise specified
------------------------------------------------------------
                       Chronic Adjustment Disorder
------------------------------------------------------------------------
9440 Chronic adjustment disorder
    General Rating Formula for Mental Disorders:
        Total occupational and social impairment, due to             100
         such symptoms as: gross impairment in thought
         processes or communication; persistent delusions
         or hallucinations; grossly inappropriate behavior;
         persistent danger of hurting self or others;
         intermittent inability to perform activities of
         daily living (including maintenance of minimal
         personal hygiene); disorientation to time or
         place; memory loss for names of close relatives,
         own occupation, or own name.......................
        Occupational and social impairment, with                      70
         deficiencies in most areas, such as work, school,
         family relations, judgment, thinking, or mood, due
         to such symptoms as: suicidal ideation;
         obsessional rituals which interfere with routine
         activities; speech intermittently illogical,
         obscure, or irrelevant; near-continuous panic or
         depression affecting the ability to function
         independently, appropriately and effectively;
         impaired impulse control (such as unprovoked
         irritability with periods of violence); spatial
         disorientation; neglect of personal appearance and
         hygiene; difficulty in adapting to stressful
         circumstances (including work or a worklike
         setting); inability to establish and maintain
         effective relationships...........................
        Occupational and social impairment with reduced               50
         reliability and productivity due to such symptoms
         as: flattened affect; circumstantial,
         circumlocutory, or stereotyped speech; panic
         attacks more than once a week; difficulty in
         understanding complex commands; impairment of
         short- and long-term memory (e.g., retention of
         only highly learned material, forgetting to
         complete tasks); impaired judgment; impaired
         abstract thinking; disturbances of motivation and
         mood; difficulty in establishing and maintaining
         effective work and social relationships...........
        Occupational and social impairment with occasional            30
         decrease in work efficiency and intermittent
         periods of inability to perform occupational tasks
         (although generally functioning satisfactorily,
         with routine behavior, self-care, and conversation
         normal), due to such symptoms as: depressed mood,
         anxiety, suspiciousness, panic attacks (weekly or
         less often), chronic sleep impairment, mild memory
         loss (such as forgetting names, directions, recent
         events)...........................................
        Occupational and social impairment due to mild or             10
         transient symptoms which decrease work efficiency
         and ability to perform occupational tasks only
         during periods of significant stress, or; symptoms
         controlled by continuous medication...............
        A mental condition has been formally diagnosed, but            0
         symptoms are not severe enough either to interfere
         with occupational and social functioning or to
         require continuous medication.....................
------------------------------------------------------------
                            Eating Disorders
------------------------------------------------------------------------
9520 Anorexia nervosa
9521 Bulimia nervosa
    Rating Formula for Eating Disorders:
        Self-induced weight loss to less than 80 percent of          100
         expected minimum weight, with incapacitating
         episodes of at least six weeks total duration per
         year, and requiring hospitalization more than
         twice a year for parenteral nutrition or tube
         feeding...........................................
        Self-induced weight loss to less than 85 percent of           60
         expected minimum weight with incapacitating
         episodes of six or more weeks total duration per
         year..............................................
        Self-induced weight loss to less than 85 percent of           30
         expected minimum weight with incapacitating
         episodes of more than two but less than six weeks
         total duration per year...........................
        Binge eating followed by self-induced vomiting or             10
         other measures to prevent weight gain, or
         resistance to weight gain even when below expected
         minimum weight, with diagnosis of an eating
         disorder and incapacitating episodes of up to two
         weeks total duration per year.....................
        Binge eating followed by self-induced vomiting or              0
         other measures to prevent weight gain, or
         resistance to weight gain even when below expected
         minimum weight, with diagnosis of an eating
         disorder but without incapacitating episodes......
------------------------------------------------------------------------
Note: An incapacitating episode is a period during which bed rest and
  treatment by a physician are required.


(Authority: 38 U.S.C. 1155)

[61 FR 52700, Oct. 8, 1996]

[[Page 452]]

                       Dental and Oral Conditions



Sec. 4.149  [Reserved]



Sec. 4.150  Schedule of ratings--dental and oral conditions.

------------------------------------------------------------------------
                                                                  Rating
------------------------------------------------------------------------
9900 Maxilla or mandible, chronic osteomyelitis or
 osteoradionecrosis of:
    Rate as osteomyelitis, chronic under diagnostic code 5000...
9901 Mandible, loss of, complete, between angles................     100
9902 Mandible, loss of approximately one-half:
    Involving temporomandibular articulation....................      50
    Not involving temporomandibular articulation................      30
9903 Mandible, nonunion of:
    Severe......................................................      30
    Moderate....................................................      10
    Note--Dependent upon degree of motion and relative loss of
     masticatory function.......................................
9904 Mandible, malunion of:
    Severe displacement.........................................      20
    Moderate displacement.......................................      10
    Slight displacement.........................................       0
    Note--Dependent upon degree of motion and relative loss of
     masticatory function.......................................
9905 Temporomandibular articulation, limited motion of:
    Inter-incisal range:
        0 to 10 mm..............................................      40
        11 to 20 mm.............................................      30
        21 to 30 mm.............................................      20
        31 to 40 mm.............................................      10
    Range of lateral excursion:
        0 to 4 mm...............................................      10
    Note--Ratings for limited inter-incisal movement shall not
     be combined with ratings for limited lateral excursion.....
9906 Ramus, loss of whole or part of:
    Involving loss of temporoman dibular articulation
        Bilateral...............................................      50
        Unilateral..............................................      30
    Not involving loss of temporo mandibular articulation
        Bilateral...............................................      30
        Unilateral..............................................      20
9907 Ramus, loss of less than one-half the substance of, not
 involving loss of continuity:
    Bilateral...................................................      20
    Unilateral..................................................      10
9908 Condyloid process, loss of, one or both sides..............      30
9909 Coronoid process, loss of:
    Bilateral...................................................      20
    Unilateral..................................................      10
9911 Hard palate, loss of half or more:
    Not replaceable by prosthesis...............................      30
    Replaceable by prosthesis...................................      10
9912 Hard palate, loss of less than half of:
    Not replaceable by prosthesis...............................      20
    Replaceable by prosthesis...................................       0
9913 Teeth, loss of, due to loss of substance of body of maxilla
 or mandible without loss of continuity:
    Where the lost masticatory surface cannot be restored by
     suitable prosthesis:
        Loss of all teeth.......................................      40
        Loss of all upper teeth.................................      30
        Loss of all lower teeth.................................      30
        All upper and lower posterior teeth missing.............      20
        All upper and lower anterior teeth missing..............      20
        All upper anterior teeth missing........................      10
        All lower anterior teeth missing........................      10
        All upper and lower teeth on one side missing...........      10
    Where the loss of masticatory surface can be restored by           0
     suitable prosthesis........................................
    Note--These ratings apply only to bone loss through trauma
     or disease such as osteomyelitis, and not to the loss of
     the alveolar process as a result of periodontal disease,
     since such loss is not considered disabling................
9914 Maxilla, loss of more than half:
    Not replaceable by prosthesis...............................     100
    Replaceable by prosthesis...................................      50
9915 Maxilla, loss of half or less:
    Loss of 25 to 50 percent:
        Not replaceable by prosthesis...........................      40
        Replaceable by prosthesis...............................      30
    Loss of less than 25 percent:
        Not replaceable by prosthesis...........................      20
        Replaceable by prosthesis...............................       0
9916 Maxilla, malunion or nonunion of:
    Severe displacement.........................................      30
    Moderate displacement.......................................      10
    Slight displacement.........................................       0
------------------------------------------------------------------------


[59 FR 2530, Jan. 18, 1994]

Appendix A to Part 4--Table of Amendments and Effective Dates Since 1946

------------------------------------------------------------------------
               Sec.
------------------------------------------------------------------------
4.16                               Last sentence; March 1, 1963.
4.17                               October 7, 1948.
4.17a                              March 1, 1963.
4.29                               Introductory portion preceding
                                    paragraph (a); March 1, 1963.
                                   Paragraph (a) ``first day of
                                    continuous hospitalization''; April
                                    8, 1959.
                                   Paragraph (a) ``terminated last day
                                    of month''; December 1, 1962.
                                   Paragraph (a) penultimate sentence;
                                    November 13, 1970.
                                   Paragraph (b); April 8, 1959.
                                   Paragraph (c); August 16, 1948.
                                   Paragraph (d); August 16, 1948.
                                   Paragraph (e); March 1, 1963.
                                   Paragraph (f); August 9, 1976.
                                    Note: Application of this section to
                                    psychoneurotic and psychophysiologic
                                    disorders effective October 1, 1961.
4.30                               Introductory portion of paragraph (a)
                                    preceding subparagraph (1); July 6,
                                    1950.
                                   Paragraph (a)(1); June 9, 1952.
                                   Paragraph (a)(2); June 9, 1952.
                                   Paragraph (a)(3); June 9, 1952.
                                    Effective as to outpatient treatment
                                    March 10, 1976.
                                   Paragraph (b)(1); March 1, 1963.
                                   Paragraph (b)(2); August 9, 1976.
4.55                               Paragraph (b) first sentence; March
                                    1, 1963.
4.63                               June 17, 1948.
4.64                               October 1, 1956.
4.71a                              Diagnostic Code 5000--60 percent;
                                    February 1, 1962.
                                   Diagnostic Code 5000 Note (2):
                                   First three sentences; July 10, 1956.
                                   Last sentence; July 6, 1950.
                                   Diagnostic Code 5002--100 percent, 60
                                    percent, 40 percent, 20 percent;
                                    March 1, 1963.

[[Page 453]]

 
                                   Diagnostic Code 5003; July 6, 1950.
                                   Diagnostic Code 5012--Note; March 10,
                                    1976.
                                   In sentence following DC 5024:
                                    ``except gout which will be rated
                                    under 5002''; March 1, 1963.
                                   Diagnostic Code 5051;
                                   Diagnostic Code 5052;
                                   Diagnostic Code 5053;
                                   Diagnostic Code 5054; September 9,
                                    1975.
                                   Diagnostic Code 5055; September 9,
                                    1975.
                                   Diagnostic Code 5056;
                                   Diagnostic Code 5164--60 percent;
                                    June 9, 1952.
                                   Diagnostic Code 5172; July 6, 1950.
                                   Diagnostic Code 5173; June 9, 1952.
                                   Diagnostic Code 5255 ``or hip''; July
                                    6, 1950.
                                   Diagnostic Code 5257--Evaluation;
                                    July 6, 1950.
                                   Diagnostic Code 5297--(Removal of one
                                    rib) ``or resection of 2 or more'';
                                    August 23, 1948.
                                   Diagnostic Code 5297--Note (2):
                                    Reference to lobectomy;
                                    pneumonectomy and graduated ratings;
                                    February 1, 1962.
                                   Diagnostic Code 5298; August 23,
                                    1948.
4.73                               Diagnostic Code 5324; February 1,
                                    1962.
                                   Diagnostic Code 5327; March 10, 1976.
                                   Diagnostic Code 5328; March 10, 1976.
4.78                               Last sentence; December 1, 1963.
4.84a                              Diagnostic Code 6029--Note; August
                                    23, 1948.
                                   Diagnostic Code 6035; September 9,
                                    1975.
                                   Diagnostic Code 6076--60%: Vision 1
                                    eye 15/200 and other eye 20/100;
                                    August 23, 1948.
                                   Diagnostic Code 6080--Note--``as to
                                    38 U.S.C. 1114(L)''; July 6, 1950.
                                   Diagnostic Code 6081--Words
                                    ``unilateral'', ``minimal'' and all
                                    of Note; March 10, 1976.
4.84b                              Removed-December 18, 1987 (text
                                    redesignated Sec. 4.871, December
                                    18, 1987)
4.85                               March 23, 1956. December 18, 1987.
4.86                               March 23, 1956. December 18, 1987.
4.86a                              March 23, 1956. December 18, 1987.
4.87                               Tables VI and VII replaced by new
                                    Tables VI VIa and VII December 18,
                                    1987.
4.87a                              Diagnostic Codes 6277 through 6297;
                                    March 23, 1956; removed December 18,
                                    1987. (Text from Sec. 4.84b
                                    redesignated Sec. 4.87a, December
                                    18, 1987).
4.88a                              Diagnostic Code 6304--Notes (1) and
                                    (2); August 23, 1948.
                                   Diagnostic Code 6309; March 1, 1963.
                                   Diagnostic Code 6350; 80% Evaluation
                                    and Criterion for 60% and 30%
                                    Evaluations; March 10, 1976. Other
                                    Evaluations and Note; March 1, 1963.
4.89                               Ratings for nonpulmonary TB; December
                                    1, 1949.
4.97                               Diagnostic Code 6600--100%
                                    Evaluations and Criteria for 60%;
                                    September 9, 1975.
                                   Diagnostic Code 6602--Criteria for
                                    all Evaluations and Note; September
                                    9, 1975.
                                   Diagnostic Code 6603; September 9,
                                    1975.
                                   Second note following Diagnostic Code
                                    6724; December 1, 1949.
                                   Diagnostic Code 6802--Criteria for
                                    all Evaluations; September 9, 1975.
                                   Diagnostic Code 6819--Note; March 10,
                                    1976.
                                   Diagnostic Code 6821--Evaluations and
                                    Note; August 23, 1948.
4.104                              Diagnostic Code 7000--30 percent;
                                    July 6, 1950.
                                   Diagnostic Code 7000--100 percent
                                    inactive ``with signs of congestive
                                    failure upon any exertion beyond
                                    rest in bed'' revoked;
                                   Diagnostic Code 7005--80 percent
                                    revoked;
                                   Diagnostic Code 7007--80 percent
                                    revoked;
                                   Diagnostic Code 7015--100 percent
                                    Evaluation. Criteria for All
                                    Evaluations and Notes (1) and (2);
                                    September 9, 1975.
                                   Diagnostic Code 7016; September 9,
                                    1975.
                                   Diagnostic Code 7017;
                                   Diagnostic Code 7100--20 percent;
                                    July 6, 1950.
                                   Diagnostic Code 7101 ``or more'';
                                    September 1, 1960.
                                   Diagnostic Code 7101--Note (2);
                                    September 9, 1975.
                                   Diagnostic Code 7110--Criteria for
                                    100 percent, Note and 60 percent and
                                    20 percent Evaluations; September 9,
                                    1975.
                                   Diagnostic Code 7111--Note; September
                                    9, 1975.
                                   Diagnostic Codes 7114, 7115, 7116,
                                    and Note; June 9, 1952.
                                   Diagnostic Code 7117 and Note; June
                                    9, 1952.
                                   Note following Diagnostic Code 7120;
                                    July 6, 1950.
                                   Diagnostic Code 7121--100 percent
                                    Criterion and Evaluation and 60
                                    percent Criterion; March 10, 1976.
                                    Criteria for 30 percent and 10
                                    percent and Note; July 6, 1950.
                                   Last sentence of Note following
                                    Diagnostic Code 7122; July 6, 1950.
4.114                              Diagnostic Codes 7304 and 7305--
                                    Evaluations; November 1, 1962.
                                   Diagnostic Code 7308--Evaluations;
                                    April 8, 1959.
                                   Diagnostic Code 7312--70% Evaluation
                                    and 50% Evaluation and Criterion;
                                    March 10, 1976.
                                   Diagnostic Code 7313--20% Evaluation;
                                    March 10, 1976.
                                   Diagnostic Code 7319--Evaluations;
                                    November 1, 1962.
                                   Diagnostic Code 7321--Evaluations and
                                    Note; July 6, 1950.
                                   Diagnostic Code 7328--Evaluations and
                                    Note; November 1, 1962.
                                   Diagnostic Code 7329--Evaluations and
                                    Note; November 1, 1962.
                                   Diagnostic Code 7330--60% Evaluation;
                                    November 1, 1962.
                                   Diagnostic Code 7332--60% Evaluation;
                                    November 1, 1962.
                                   Diagnostic Code 7334--50% and 30%
                                    Evaluations; July 6, 1950.
                                   Diagnostic Code 7334--10% Evaluation;
                                    November 1, 1962.
                                   Diagnostic Code 7339--Criterion for
                                    20% Evaluation; March 10, 1976.
                                   Diagnostic Code 7343--Note; March 10,
                                    1976.
                                   Diagnostic Code 7345--100%, 60% and
                                    30% Evaluations; August 23, 1948.
                                   Diagnostic Code 7345--10% Evaluation;
                                    February 17, 1955.
                                   Diagnostic Code 7345--10% Evaluation;
                                    February 17, 1955.
                                   Diagnostic Code 7346--Evaluations;
                                    February 1, 1962.
                                   Diagnostic Code 7347; September 9,
                                    1975.
                                   Diagnostic Code 7348; March 10, 1976.
4.115a                             Diagnostic Code 7500--Note; July 6,
                                    1950.
                                   Diagnostic Code 7519--20%, 40% and
                                    60% Evaluations; March 10, 1976.
                                   Diagnostic Code 7524--Note; July 6,
                                    1950.
                                   Diagnostic Code 7528--Note; March 10,
                                    1976.
                                   Diagnostic Code 7530; September 9,
                                    1975.
                                   Diagnostic Code 7531; September 9,
                                    1975.
4.116a                             Diagnostic Code 7627--Note; March 10,
                                    1976.

[[Page 454]]

 
4.117                              Diagnostic Code 7703--Evaluations;
                                    August 23, 1948.
                                   Diagnostic Code 7709--Note; March 10,
                                    1976. Evaluations; June 9, 1952.
                                   Diagnostic Code 7714; September 9,
                                    1975.
4.118                              Diagnostic Code 7801--Note (2); July
                                    6, 1950.
                                   Diagnostic Code 7804--Note; July 6,
                                    1950.
4.119                              Diagnostic Code 7900--10% Evaluation;
                                    and Notes (2) and (3); August 13,
                                    1981.
                                   Diagnostic Code 7902--20% Evaluation;
                                    August 13, 1981.
                                   Diagnostic Code 7903--10% Evaluation;
                                    August 13, 1981.
                                   Diagnostic Code 7905--10% Evaluation;
                                    August 13, 1981.
                                   Diagnostic Code 7907--60% Evaluation;
                                    August 13, 1981.
                                   Diagnostic Code 7909--40% and 20%
                                    Evaluation; August 13, 1981.
                                   Diagnostic Code 7911--Evaluations and
                                    Note; March 1, 1963; 40% and 20%
                                    Evaluations; August 13, 1981.
                                   Diagnostic Code 7913--Note; September
                                    9, 1975.
                                   Diagnostic Code 7914--Note; March 10,
                                    1976.
4.122                              October 1, 1961.
4.124a                             Diagnostic Code 8002, Note;
                                   Diagnostic Code 8021, Note;
                                   Diagnostic Code 8045; October 1,
                                    1961.
                                   Diagnostic Code 8046; October 1,
                                    1961.
                                   Diagnostic Code 8100--Evaluations;
                                    June 9, 1953.
                                   Diagnostic Codes 8910 through 8914;
                                    October 1, 1961.
                                   Diagnostic Codes 8910 through 8914
                                    General Rating Formula--Criteria and
                                    Evaluations; September 9, 1975.
4.125-4.132                        All Diagnostic Codes under Mental
                                    Disorders; October 1, 1961, except
                                    as to evaluation for Diagnostic
                                    Codes 9500 through 9511; September
                                    9, 1975.
------------------------------------------------------------------------


[29 FR 6718, May 22, 1964, as amended at 34 FR 5064, Mar. 11, 1969; 40 
FR 42541, Sept. 15, 1975; 41 FR 11291, Mar. 18, 1976; 41 FR 34258, Aug. 
13, 1976; 43 FR 45362, Oct. 2, 1978; 46 FR 43666, Aug. 31, 1981; 52 FR 
44122, Nov. 18, 1987; 52 FR 46439, Dec. 7, 1987]

          Appendix B to Part 4--Numerical Index of Disabilities

                 [acute, subacute, or chronic diseases]
------------------------------------------------------------------------
       Diagnostic Code No.
------------------------------------------------------------------------
5000                               Osteomyelitis, acute, subacute, or
                                    chronic.
5001                               Bones and Joints, tuberculosis of.
5002                               Arthritis, rheumatoid (atrophic).
5003                               Arthritis, degenerative,
                                    hypertrophic, or osteoarthritis.
5004                               Arthritis, gonorrheal.
5005                               Arthritis, pneumococcic.
5006                               Arthritis, typhoid.
5007                               Arthritis, syphilitic.
5008                               Arthritis, streptococcic.
5009                               Arthritis, other types.
5010                               Arthritis, due to trauma.
5011                               Bones, caisson disease of.
5012                               Bones, new growths of, malignant.
5013                               Osteoporosis, with joint
                                    manifestations.
5014                               Osteomalacia.
5015                               Bones, new growths of, benign.
5016                               Osteitis deformans.
5017                               Gout.
5018                               Hydrarthrosis, intermittent.
5019                               Bursitis.
5020                               Synovitis.
5021                               Myositis.
5022                               Periostitis.
5023                               Myositis ossificans.
5024                               Tenosynovitis.
----------------------------------
                      combinations of disabilities
------------------------------------------------------------------------
5100                               Anatomical loss of both hands and
                                    both feet.
5101                               Loss of use of both hands and both
                                    feet.
5102                               Anatomical loss of both hands and one
                                    foot.
5103                               Anatomical loss of both feet and one
                                    hand.
5104                               Loss of use of both hands and one
                                    foot.
5105                               Loss of use of both feet and one
                                    hand.
5106                               Anatomical loss of both hands.
5107                               Anatomical loss of both feet.
5108                               Anatomical loss of one hand and one
                                    foot.
5109                               Loss of use of both hands.
5110                               Loss of use of both feet.
5111                               Loss of use of one hand and one foot.
----------------------------------
                      amputations: upper extremity
------------------------------------------------------------------------
                                   Arm, amputation of:
5120                                Disarticulation.
5121                                Above insertion of deltoid.
5122                                Below insertion of deltoid.
                                   Forearm, amputation of:
5123                                Above insertion of pronator teres.
5124                                Below insertion of pronator teres.
5125                                Hand, loss of use of.
5126                                Five digits of one hand, amputation
                                    of:
                                   Four digits of one hand, amputation
                                    of:
5127                                Thumb, index, middle and ring.
5128                                Thumb, index, middle and little.
5129                                Thumb, index, ring and little.
5130                                Thumb, middle, ring and little.
5131                                Index, middle, ring and little.
                                   Three digits of one hand, amputation
                                    of:
5132                                Thumb, index and middle.
5133                                Thumb, index and ring.
5134                                Thumb, index and little.
5135                                Thumb, middle and ring.
5136                                Thumb, middle and little.
5137                                Thumb, ring and little.
5138                                Index, middle and ring.
5139                                Index, middle and little.
5140                                Index, ring and little.
5141                                Middle, ring and little.
                                   Two digits of one hand, amputation
                                    of:
5142                                Thumb and index.
5143                                Thumb and middle.
5144                                Thumb and ring.
5145                                Thumb and little.
5146                                Index and middle.
5147                                Index and ring.
5148                                Index and little.
5149                                Middle and ring.
5150                                Middle and little.
5151                                Ring and little.
5152                               Thumb, amputation of.
5153                               Index finger, amputation of.

[[Page 455]]

 
5154                               Middle finger, amputation of.
5155                               Ring finger, amputation of.
5156                               Little finger, amputation of.
----------------------------------
                      amputations: lower extremity
------------------------------------------------------------------------
                                   Thigh, amputation of:
5160                                Disarticulation.
5161                                Upper third.
5162                                Middle or lower thirds.
                                   Leg, amputation of:
5163                                With defective stump.
5164                                With loss of natural knee action.
5165                                At a lower level.
5166                               Forefoot, amputation proximal to
                                    metatarsal bones.
5167                               Foot, loss of use of.
5170                               Toes, all, amputation of, without
                                    metatarsal loss.
5171                               Toe, great, amputation of.
5172                               Toe, other, amputation of.
5173                               Toes, three or more, amputation of,
                                    not including great toe.
----------------------------------
                          the shoulder and arm
------------------------------------------------------------------------
5200                               Scapulohumeral articulation,
                                    ankylosis of.
5201                               Arm, limitation of motion of.
5202                               Humerus, other impairment of.
5203                               Clavicle or scapula, impairment of.
----------------------------------
                          the elbow and forearm
------------------------------------------------------------------------
5205                               Elbow, ankylosis of.
5206                               Forearm, limitation of flexion of.
5207                               Forearm, limitation of extension of
5208                               Forearm, flexion limited to 100[deg]
                                    and extension to 45[deg].
5209                               Elbow, other impairment of.
5210                               Radius and ulna, nonunion of, with
                                    flail false joint.
5211                               Ulna, impairment of.
5212                               Radius, impairment of.
5213                               Supination and pronation, impairment
                                    of.
----------------------------------
                           the wrist and hand
------------------------------------------------------------------------
5214                               Wrist, ankylosis.
5215                               Wrist, limitation of motion of.
5216                               Five digits of one hand, unfavorable
                                    ankylosis of.
5217                               Four digits of one hand, unfavorable
                                    ankylosis of.
5218                               Three digits of one hand, unfavorable
                                    ankylosis of.
5219                               Two digits of one hand, unfavorable
                                    ankylosis of.
5220                               Five digits of one hand, favorable
                                    ankylosis of.
5221                               Four digits of one hand, favorable
                                    ankylosis of.
5222                               Three digits of one hand, favorable
                                    ankylosis of.
5223                               Two digits of one hand, favorable
                                    ankylosis of.
5224                               Thumb, ankylosis of.
5225                               Index finger, ankylosis of.
5226                               Middle finger, ankylosis of.
5227                               Finger, any other, ankylosis of.
----------------------------------
                            the hip and thigh
------------------------------------------------------------------------
5250                               Hip, ankylosis of.
5251                               Thigh, limitation of extension of.
5252                               Thigh, limitation of flexion of.
5253                               Thigh, impairment of.
5254                               Hip, flail joint.
5255                               Femur, impairment of.
----------------------------------
                            the knee and leg
------------------------------------------------------------------------
5256                               Knee, ankylosis of.
5257                               Knee, other impairment of.
5258                               Cartilage, semilunar, dislocated.
5259                               Cartilage, semilunar, removal of.
5260                               Leg, limitation of flexion of.
5261                               Leg, limitation of extension of.
5262                               Tibia and fibula, impairment of.
5263                               Genu recurvatum.
----------------------------------
                                the ankle
------------------------------------------------------------------------
5270                               Ankle, ankylosis of.
5271                               Ankle, limited motion of.
5272                               Subastragalar or tarsal joint,
                                    ankylosis of.
5273                               Os calcis or astragalus, malunion of.
5274                               Astragalectomy.
----------------------------------
                    shortening of the lower extremity
------------------------------------------------------------------------
5275                               Bones, of the lower extremity,
                                    shortening of.
----------------------------------
                                the foot
------------------------------------------------------------------------
5276                               Flatfoot, acquired.
5277                               Weak foot, bilateral.
5278                               Claw foot (pes cavus), acquired.
5279                               Metatarsalgia, anterior (Morton's
                                    disease).
5280                               Hallux valgus.
5281                               Hallux rigidus.
5282                               Hammer toe.
5283                               Tarsal, or metatarsal bones, malunion
                                    of, or nonunion of.
5284                               Foot injuries, other.
----------------------------------
                                the spine
------------------------------------------------------------------------
5285                               Vertebra, fracture of, residuals.
5286                               Spine, complete bony fixation
                                    (ankylosis) of.
5287                               Spine, ankylosis of, cervical.
5288                               Spine, ankylosis of, dorsal.
5289                               Spine, ankylosis of, lumbar.
5290                               Spine, limitation of motion of,
                                    cervical.
5291                               Spine, limitation of motion of,
                                    dorsal.
5292                               Spine, limitation of motion of,
                                    lumbar.
5293                               Intervertebral disc syndrome.
5294                               Sacroiliac injury and weakness.
5295                               Lumbosacral strain.
----------------------------------
                                the skull
------------------------------------------------------------------------
5296                               Skull, loss of part of, both inner
                                    and outer tables.
----------------------------------
                                the ribs
------------------------------------------------------------------------
5297                               Ribs, removal of.
----------------------------------
                               the coccyx
------------------------------------------------------------------------
5298                               Coccyx, removal of.
----------------------------------
                             muscle injuries
------------------------------------------------------------------------
5301                               Group I--Extrinsic muscles of
                                    shoulder girdle.
5302                               Group II--Extrinsic muscles of
                                    shoulder girdle.
5303                               Group III--Intrinsic muscles of
                                    shoulder girdle.
5304                               Group IV--Intrinsic muscles of
                                    shoulder girdle.
5305                               Group V--Flexor muscles of the elbow.
5306                               Group VI--Extensor muscles of the
                                    elbow.
5307                               Group VII--Muscles arising from
                                    internal condyle of humerus.

[[Page 456]]

 
5308                               Group VIII--Muscles arising mainly
                                    from external condyle of humerus.
5309                               Group IX--Intrinsic muscles of the
                                    hand.
5310                               Group X--Intrinsic muscles of the
                                    foot.
5311                               Group XI--Posterior and lateral
                                    muscles of the leg.
5312                               Group XII--Anterior muscles of the
                                    leg.
5313                               Group XIII--Posterior thigh group.
5314                               Group XIV--Anterior thigh group.
5315                               Group XV--Mesial thigh group.
5316                               Group XVI--Pelvic girdle group 1.
5317                               Group XVII--Pelvic girdle group 2.
5318                               Group XVIII--Pelvic girdle group 3.
5319                               Group XIX--Muscles of the abdominal
                                    wall.
5320                               Group XX--Spinal muscles.
5321                               Group XXI--Muscles of respiration.
5322                               Group XXII--Lateral, supra and
                                    infrahyoid group.
5323                               Group XXIII--Lateral and posterior
                                    muscles of the neck.
5324                               Diaphragm, rupture of.
5325                               Muscle injury, facial muscles.
5326                               Muscle hernia.
----------------------------------
                           diseases of the eye
------------------------------------------------------------------------
6000                               Uveitis.
6001                               Keratitis.
6002                               Scleritis.
6003                               Iritis.
6004                               Cyclitis.
6005                               Choroiditis.
6006                               Retinitis.
6007                               Hemorrhage, intra-ocular, recent.
6008                               Retina, detachment of.
6009                               Eye, injury of, unhealed.
6010                               Eye, tuberculosis of.
6011                               Retina, localized scars.
6012                               Glaucoma, congestive or inflammatory.
6013                               Glaucoma, simple, primary,
                                    noncongestive.
6014                               New growths, malignant, eyeball.
6015                               New growths, benign, eyeball and
                                    adnexa.
6016                               Nystagmus, central.
6017                               Conjunctivitis, trachomatous,
                                    chronic.
6018                               Conjunctivitis, other, chronic.
6019                               Ptosis, eyelids.
6020                               Ectropion.
6021                               Entropion.
6022                               Lagophthalmos.
6023                               Eyebrows, loss of.
6024                               Eyelashes, loss of.
6025                               Epiphora.
6026                               Neuritis, optic.
6027                               Cataract, traumatic.
6028                               Cataract, senile, and others.
6029                               Aphakia.
6030                               Accommodation, paralysis of.
6031                               Dacryocystitis.
6032                               Eyelids, loss of portion of.
6033                               Lens, crystalline, dislocation of.
6034                               Pterygium.
----------------------------------
                      combinations of disabilities
------------------------------------------------------------------------
6050                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of both hands and both feet.
6051                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    both hands and both feet.
6052                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of both hands.
6053                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of both feet.
6054                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of one hand and one foot.
6055                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    both hands.
6056                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    both feet.
6057                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    one hand and one foot.
6058                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of one hand.
6059                               Blindness in both eyes having only
                                    light perception and anatomical loss
                                    of one foot.
6060                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    one hand.
6061                               Blindness in both eyes having only
                                    light perception and loss of use of
                                    one foot.
6062                               Blindness in both eyes having only
                                    light perception.
----------------------------------
                   impairment of central visual acuity
------------------------------------------------------------------------
                                   Blindness, anatomical loss, one eye:
6063                                Other blind (5/200 or less).
6064                                Other impaired (20/200 or less).
6065                                Other impaired.
6066                                Other normal.
                                   Blindness, light perception only one
                                    eye:
6067                                Other blind (5/200 or less).
6068                                Other impaired (20/200 or less).
6069                                Other impaired.
6070                                Other normal.
                                   Blindness, total (5/200 or less):
6071                                Both eyes.
                                   Blindness, total one eye (5/200 or
                                    less):
6072                                Other impaired (20/200 or less).
6073                                Other impaired.
6074                                Other normal.
                                   Blindness, partial (20/200 or less):
6075                                Both eyes.
                                    One eye:
6076                                Other impaired.
6077                                Other normal.
                                   Blindness, partial:
6078                                Both eyes.
6079                                One eye only.
6080                               Field vision, impairment of.
6081                               Scotoma, pathological.
6090                               Muscle function, ocular, impairment
                                    of.
6091                               Symblepharon.
6092                               Diplopia, due to limited muscle
                                    function.
----------------------------------
                      impairment of auditory acuity
------------------------------------------------------------------------
6100                               0% evaluation based on Table VII
6101                               10% evaluation based on Table VII
6102                               20% evaluation based on Table VII
6103                               30% evaluation based on Table VII
6104                               40% evaluation based on Table VII
6105                               50% evaluation based on Table VII
6106                               60% evaluation based on Table VII
6107                               70% evaluation based on Table VII
6108                               80% evaluation based on Table VII
6109                               90% evaluation based on Table VII
6110                               100% evaluation based on Table VII.
----------------------------------
                           diseases of the ear
------------------------------------------------------------------------
6200                               Otitis media, suppurative, chronic.
6201                               Otitis media, catarrhal, chronic.
6202                               Otosclerosis.

[[Page 457]]

 
6203                               Otitis interna.
6204                               Labyrinthitis.
6205                               Meniere's syndrome.
6206                               Mastoiditis.
6207                               Auricle, loss or deformity.
6208                               New growths, malignant, ear.
6209                               New growths, benign, ear.
6210                               Auditory canal, disease of.
6211                               Tympanic membrane, perforation of.
6260                               Tinnitus.
----------------------------------
                           other sense organs
------------------------------------------------------------------------
6275                               Smell, loss of sense of.
6276                               Taste, loss of sense of.
----------------------------------
                            systemic diseases
------------------------------------------------------------------------
6300                               Cholera, Asiatic.
6301                               Kala-azar (visceral leishmaniasis).
6302                               Leprosy.
6304                               Malaria.
6305                               Filariasis.
6306                               Oroya fever.
6307                               Plague.
6308                               Relapsing fever.
6309                               Rheumatic fever.
6310                               Syphilis, unspecified.
6311                               Tuberculosis, military.
6313                               Avitaminosis.
6314                               Beriberi.
6315                               Pellagra.
6316                               Brucellosis (Malta or undulant
                                    fever).
6317                               Typhus, scrub.
6350                               Lupus erythematosus, systemic.
----------------------------------
                           respiratory system
------------------------------------------------------------------------
                           the nose and throat
------------------------------------------------------------------------
6501                               Rhinitis, atrophic, chronic.
6502                               Septum, nasal, deflection of.
6504                               Nose, loss of part of, or scars.
6510                               Sinusitis, pansinusitis, chronic.
6511                               Sinusitis, ethmoid, chronic.
6512                               Sinusitis, frontal, chronic.
6513                               Sinusitis, maxillary, chronic.
6514                               Sinusitis, sphenoid, chronic.
6515                               Laryngitis, tuberculous.
6516                               Laryngitis, chronic.
6517                               Larynx, injuries of, healed.
6518                               Laryngectomy.
6519                               Aphonia, organic.
6520                               Larynx, stenosis of.
----------------------------------
                         the trachea and bronchi
------------------------------------------------------------------------
6600                               Bronchitis, chronic.
6601                               Bronchiectasis.
6602                               Asthma, bronchial.
----------------------------------
                          the lungs and pleura
------------------------------------------------------------------------
6701                               Tuberculosis, pulmonary, chronic, far
                                    advanced, active.
6702                               Tuberculosis, pulmonary, chronic,
                                    moderately advanced, active.
6703                               Tuberculosis, pulmonary, chronic,
                                    minimal, active.
6704                               Tuberculosis, pulmonary, chronic,
                                    active, advancement unspecified.
6707                               Tuberculosis, pulmonary, chronic, far
                                    advanced, active.
6708                               Tuberculosis, pulmonary, chronic,
                                    moderately advanced, active.
6709                               Tuberculosis, pulmonary, chronic,
                                    minimal, active.
6710                               Tuberculosis, pulmonary, chronic,
                                    active, advancement unspecified.
6721                               Tuberculosis, pulmonary, chronic, far
                                    advanced, inactive.
6722                               Tuberculosis, pulmonary, chronic,
                                    moderately advanced, inactive.
6723                               Tuberculosis, pulmonary, chronic,
                                    minimal, inactive.
6724                               Tuberculosis, pulmonary, chronic,
                                    inactive, advancement unspecified.
6725                               Tuberculosis, pulmonary, chronic, far
                                    advanced, inactive.
6726                               Tuberculosis, pulmonary, chronic,
                                    moderately advanced, inactive.
6727                               Tuberculosis, pulmonary, chronic,
                                    minimal, inactive.
6728                               Tuberculosis, pulmonary, chronic,
                                    inactive, advancement unspecified.
6732                               Pleurisy, tuberculous.
6800                               Anthracosis.
6801                               Silicosis.
6802                               Pneumoconiosis, unspecified.
6803                               Actinomycosis of lung.
6804                               Streptotrichosis of lung.
6805                               Blastomycosis of lung.
6806                               Sporotrichosis of lung.
6807                               Aspergillosis of lung.
6808                               Mycosis of lung, unspecified.
6809                               Lung, abscess of.
6810                               Pleurisy, serofibrinous.
6811                               Pleurisy, purulent (empyema).
6812                               Fistula, bronchocutaneous, or
                                    bronchopleural.
6813                               Lung, permanent collapse of.
6814                               Pneumothorax, spontaneous.
6815                               Pneumonectomy.
6816                               Lobectomy.
6817                               Lung, chronic passive congestion of.
6818                               Pleural cavity, injuries, residuals
                                    of, including gunshot wounds.
6819                               New growths, malignant, any specified
                                    part of respiratory system.
6820                               New growths, benign, any specified
                                    part of respiratory system.
6821                               Coccidioidomycosis.
----------------------------------
                        the cardiovascular system
------------------------------------------------------------------------
                                the heart
------------------------------------------------------------------------
7000                               Rheumatic heart disease.
7001                               Endocarditis, bacterial, subacute.
7002                               Pericarditis, bacterial or rheumatic,
                                    acute.
7003                               Adhesions, pericardial.
7004                               Syphilitic heart disease.
7005                               Arteriosclerotic heart disease.
7006                               Myocardium, infarction of, due to
                                    thrombosis or embolism.
7007                               Hypertensive heart disease.
7008                               Hyperthyroid heart disease.
7010                               Auricular flutter, paroxysmal.
7011                               Auricular fibrillation, paroxysmal.
7012                               Auricular fibrillation, permanent.
7013                               Tachycardia, paroxysmal.
7014                               Sinus tachycardia.
7015                               Auriculoventricular block.
----------------------------------

[[Page 458]]

 
                         the arteries and veins
------------------------------------------------------------------------
7100                               Arteriosclerosis, general.
7101                               Hypertensive vascular disease
                                    (essential arterial hypertension).
7110                               Aorta or branches, aneurysm of.
7111                               Artery, any large artery, aneurysm
                                    of.
7112                               Artery, small aneurysmal dilatation.
7113                               Arteriovenous aneurysm, traumatic.
7114                               Arteriosclerosis obliterans.
7115                               Thrombo-angiitis obliterans
                                    (Buerger's disease).
7116                               Claudication, intermittent.
7117                               Raynaud's disease.
7118                               Angioneurotic edema.
7119                               Erythromelalgia.
7120                               Varicose veins.
7121                               Phlebitis.
7122                               Frozen feet, residuals of (Immersion
                                    foot).
----------------------------------
                          the digestive system
------------------------------------------------------------------------
7200                               Mouth, injuries of.
7201                               Lips, injuries of.
7202                               Tongue, loss of, whole or part.
7203                               Esophagus, stricture of.
7204                               Esophagus, spasm of (cardiospasm).
7205                               Esophagus, diverticulum of, acquired.
7301                               Peritoneum, adhesions of.
7304                               Ulcer, gastric.
7305                               Ulcer, duodenal.
7306                               Ulcer, marginal (gastrojejunal).
7307                               Gastritis, hypertrophic.
7308                               Postgastrectomy syndromes.
7309                               Stomach, stenosis of.
7310                               Stomach, injury of, residuals.
7311                               Liver, injury of.
7312                               Liver, cirrhosis of.
7313                               Liver, abscess of, residuals.
7314                               Cholecystitis, chronic.
7315                               Cholelithiasis, chronic.
7316                               Cholangitis, chronic.
7317                               Gall bladder, injury of.
7318                               Gall bladder, removal of.
7319                               Irritable colon syndrome (spastic
                                    colitis, mucous colitis, etc.).
7321                               Amebiasis.
7322                               Dysentery, bacillary.
7323                               Colitis, ulcerative.
7324                               Distomiasis, intestinal or hepatic.
7325                               Enteritis, chronic.
7326                               Enterocolitis, chronic.
7327                               Diverticulitis.
7328                               Intestine, small, resection of.
7329                               Intestine, large, resection of.
7330                               Intestine, fistula of.
7331                               Peritonitis, tuberculous, active.
7332                               Rectum and anus, impairment of
                                    sphincter control.
7333                               Rectum and anus, stricture of.
7334                               Rectum, persistent prolapse of.
7335                               Ano, fistula in.
7336                               Hemorrhoids, external or internal.
7337                               Pruritus ani.
7338                               Hernia, inguinal.
7339                               Hernia, ventral.
7340                               Hernia, femoral.
7341                               Wounds, incised, healed, abdominal
                                    wall.
7342                               Visceroptosis.
7343                               New growths, malignant, any specified
                                    part of digestive system.
7344                               New growths, benign, any specified
                                    part of digestive system.
7345                               Hepatitis, infectious.
7346                               Hernia, hiatal.
----------------------------------
                        the genitourinary system
------------------------------------------------------------------------
7500                               Kidney, removal of.
7501                               Kidney, abscess of.
7502                               Nephritis, chronic.
7503                               Pyelitis.
7504                               Pyelonephritis, chronic.
7505                               Kidney, tuberculosis of, active.
7507                               Nephrosclerosis, arteriolar.
7508                               Nephrolithiasis.
7509                               Hydronephrosis.
7510                               Ureterolithiasis.
7511                               Ureter, stricture of.
7512                               Cystitis, chronic.
7513                               Cystitis, interstitial (Hunner),
                                    submucous or elusive ulcer.
7514                               Bladder, tuberculosis of.
7515                               Bladder, calculus in.
7516                               Bladder, fistula of.
7517                               Bladder, injury of.
7518                               Urethra, stricture of.
7519                               Urethra, fistula of.
7520                               Penis, removal of half or more.
7521                               Penis, removal of glans.
7522                               Penis, deformity, with loss of
                                    erectile power.
7523                               Testis, atrophy, complete.
7524                               Testis, removal of.
7525                               Epididymo-orchitis (tuberculous).
7526                               Prostate gland, resection or removal.
7527                               Prostate gland injuries, infectious
                                    hypertrophy, postoperative
                                    residuals.
7528                               New growths, malignant, any specified
                                    part of genitourinary system.
7529                               New growths, benign, any specified
                                    part of genitourinary system.
----------------------------------
                        gynecological conditions
------------------------------------------------------------------------
7610                               Vulvovaginitis.
7611                               Vaginitis.
7612                               Cervicitis.
7613                               Metritis.
7614                               Salpingitis.
7615                               Oophoritis.
7617                               Uterus and ovaries, removal of,
                                    complete.
7618                               Uterus, removal of, including corpus.
7619                               Ovaries, removal of.
7620                               Ovaries, atrophy of both.
7621                               Uterus, prolapse.
7622                               Uterus, displacement of.
7623                               Pregnancy, surgical complications of.
7624                               Fistula, rectovaginal.
7625                               Fistula, urethrovaginal.
7626                               Mammary glands, removal of.
7627                               New growth, malignant, gynecological
                                    system, or mammary glands.
----------------------------------
                     the hemic and lymphatic systems
------------------------------------------------------------------------
7700                               Anemia, pernicious.
7701                               Anemia, secondary.
7702                               Agranulocytosis, acute.
7703                               Leukemia.
7704                               Polycythemia, primary.

[[Page 459]]

 
7705                               Purpura hemorrhagica.
7706                               Splenectomy.
7707                               Spleen, injury of, healed.
7709                               Lymphogranulomatosis (Hodgkin's
                                    disease).
7710                               Adenitis, cervical, tuberculous.
7711                               Adenitis, axillary, tuberculous.
7712                               Adenitis, inguinal, tuberculous.
7713                               Adenitis, secondary.
----------------------------------
                                the skin
------------------------------------------------------------------------
7800                               Scars, disfiguring, head, face or
                                    neck.
7801                               Scars, burns, third degree.
7802                               Scars, burns, second degree.
7803                               Scars, superficial, poorly nourished.
7804                               Scars, superficial, tender and
                                    painful.
7805                               Scars, others.
7806                               Eczema.
7807                               Leishmaniasis, americana
                                    (mucocutaneous, espundia).
7808                               Leishmaniasis, old world (cutaneous,
                                    oriental sore).
7809                               Lupus erythematosus, discoid.
7810                               Pinta.
7811                               Tuberculosis luposa (lupus vulgaris).
7812                               Verruga peruana.
7813                               Dermatophytosis.
7814                               Tinea barbae.
7815                               Pemphigus.
7816                               Psoriasis.
7817                               Dermatitis exfoliativa.
7818                               New growths, malignant, skin.
7819                               New growths, benign, skin.
----------------------------------
                          the endocrine system
------------------------------------------------------------------------
7900                               Hyperthyroidism.
7901                               Thyroid gland, toxic adenoma of.
7902                               Thyroid gland, non-toxic adenoma of.
7903                               Hypothyroidism.
7904                               Hyperparathyroidism (osteitis fibrosa
                                    cystica).
7905                               Hypoparathyroidism.
7907                               Hyperpituitarism (pituitary
                                    basophilism, Cushing's syndrome).
7908                               Hyperpituitarism (acromegaly or
                                    gigantism).
7909                               Hypopituitarism (diabetes inspidus).
7910                               Hyperadrenia (adrenogenital
                                    syndrome).
7911                               Addison's disease.
7912                               Pluriglandular syndromes.
7913                               Diabetes mellitus.
7914                               New growths, malignant, endocrine
                                    system.
7915                               New growths, benign, endocrine
                                    system.
----------------------------------
            neurological conditions and convulsive disorders
------------------------------------------------------------------------
8000                               Encephalitis, epidemic, chronic.
                                   Brain, new growth of:
8002                               Malignant.
8003                               Benign.
8004                               Paralysis agitans.
8005                               Bulbar palsy.
8007                               Brain, vessels, embolism of.
8008                               Brain, vessels, thrombosis of.
8009                               Brain, vessels, hemorrhage from.
8010                               Myelitis.
8011                               Poliomyelitis, anterior.
8012                               Hematomyelia.
8013                               Syphilis, cerebrospinal.
8014                               Syphilis, meningovascular.
8015                               Tabes dorsalis.
8017                               Amyotrophic lateral sclerosis.
8018                               Multiple sclerosis.
8019                               Meningitis, cerebrospinal, epidemic.
8020                               Brain, abscess of. Spinal cord, new
                                    growths:
8021                               Malignant.
8022                               Benign.
8023                               Progressive muscular atrophy.
8024                               Syringomyelia.
8025                               Myasthenia gravis.
8045                               Brain disease due to trauma.
8046                               Cerebral arteriosclerosis.
8100                               Migraine.
8103                               Tic, convulsive.
8104                               Paramyoclonus multiplex (convulsive
                                    state, myoclonic type).
8105                               Chorea, Sydenham's.
8106                               Chorea, Huntington's.
8107                               Athetosis, acquired.
8108                               Narcolepsy.
----------------------------------
                           the cranial nerves
------------------------------------------------------------------------
8205                               Fifth (trigeminal) cranial nerve,
                                    paralysis of.
8207                               Seventh (facial) cranial nerve,
                                    paralysis of.
8209                               Ninth (glossopharyngeal) cranial
                                    nerve, paralysis of.
8210                               Tenth (pneumogastric, vagus) cranial
                                    nerve, paralysis of.
8211                               Eleventh (spinal accessory, external
                                    branch) cranial nerve, paralysis of.
8212                               Twelfth (hypoglossal) cranial nerve,
                                    paralysis of.
8305                               Fifth (trigeminal) cranial nerve,
                                    neuritis.
8307                               Seventh (facial) cranial nerve,
                                    neuritis.
8309                               Ninth (glossopharyngeal) cranial
                                    nerve, neuritis.
8310                               Tenth (pneumogastric, vagus) cranial
                                    nerve, neuritis.
8311                               Eleventh (spinal accessory, external
                                    branch) cranial nerve, neuritis.
8312                               Twelfth (hypoglossal) cranial nerve,
                                    neuritis.
8407                               Seventh (facial) cranial nerve,
                                    neuralgia.
8409                               Ninth (glossopharyngeal) cranial
                                    nerve, neuralgia.
8410                               Tenth (pneumogastric, vagus) cranial
                                    nerve, neuralgia.
8411                               Eleventh (spinal accessory, external
                                    branch) cranial nerve, neuralgia.
8412                               Twelfth (hypoglossal) cranial nerve,
                                    neuralgia.
----------------------------------
                      peripheral nerves: paralysis
------------------------------------------------------------------------
8510                               Upper radicular group (fifth and
                                    sixth cervicals), paralysis of.
8511                               Middle radicular group, paralysis of.
8512                               Lower radicular group, paralysis of.
8513                               All radicular groups, paralysis of.
8514                               The musculospiral nerve (radial
                                    nerve), paralysis of.
8515                               The median nerve, paralysis of.
8516                               The ulnar nerve, paralysis of.
8517                               Musculocutaneous nerve, paralysis of.
8518                               Circumflex nerve, paralysis of.
8519                               Long thoracic nerve, paralysis of.
8520                               The sciatic nerve, paralysis of.
8521                               External popliteal nerve (common
                                    peroneal), paralysis of.
8522                               Musculocutaneous nerve (superficial
                                    peroneal), paralysis of.
8523                               Anterior tibial nerve (deep
                                    peroneal), paralysis of.
8524                               Internal popliteal nerve (tibial),
                                    paralysis of.
8525                               Posterior tibial nerve, paralysis of.
8526                               Anterior crural nerve (femoral),
                                    paralysis of.
8527                               Internal saphenous nerve, paralysis
                                    of.
8528                               Obturator nerve, paralysis of.

[[Page 460]]

 
8529                               External cutaneous nerve of thigh,
                                    paralysis of.
8530                               Ilio-inguinal nerve, paralysis of.
----------------------------------
                       peripheral nerves: neuritis
------------------------------------------------------------------------
8610                               Upper radicular group (fifth and
                                    sixth cervicals), neuritis.
8611                               Middle radicular group, neuritis.
8612                               Lower radicular group, neuritis.
8613                               All radicular groups, neuritis.
8614                               The musculospiral nerve (radial
                                    nerve), neuritis.
8615                               The median nerve, neuritis.
8616                               The ulnar nerve, neuritis.
8617                               Musculocutaneous nerve, neuritis.
8618                               Circumflex nerve, neuritis.
8619                               Long thoracic nerve, neuritis.
8620                               The sciatic nerve, neuritis.
8621                               External popliteal nerve (common
                                    peroneal), neuritis.
8622                               Musculocutaneous nerve (superficial
                                    peroneal), neuritis.
8623                               Anterior tibial nerve (deep
                                    peroneal), neuritis.
8624                               Internal popliteal nerve (tibial)
                                    neuritis.
8625                               Posterior tibial nerve, neuritis.
8626                               Anterior crural nerve (femoral),
                                    neuritis.
8627                               Internal saphenous nerve, neuritis.
8628                               Obturator nerve, neuritis.
8629                               External cutaneous nerve of thigh,
                                    neuritis.
8630                               Ilio-inguinal nerve, neuritis.
----------------------------------
                      peripheral nerves: neuralgia
------------------------------------------------------------------------
8710                               Upper radicular group (fifth and
                                    sixth cervicals), neuralgia.
8711                               Middle radicular group, neuralgia.
8712                               Lower radicular group, neuralgia.
8713                               All radicular groups, neuralgia.
8714                               The musculospiral nerve (radial
                                    nerve), neuralgia.
8715                               The median nerve, neuralgia.
8716                               The ulnar nerve, neuralgia.
8717                               Musculocutaneous nerve, neuralgia.
8718                               Circumflex nerve, neuralgia.
8719                               Long thoracic nerve, neuralgia.
8720                               The sciatic nerve, neuralgia.
8721                               External popliteal nerve (common
                                    peroneal), neuralgia.
8722                               Musculocutaneous nerve (superficial
                                    peroneal), neuralgia.
8723                               Anterior tibial nerve (deep
                                    peroneal), neuralgia.
8724                               Internal popliteal nerve (tibial),
                                    neuralgia.
8725                               Posterior tibial nerve, neuralgia.
8726                               Anterior crural nerve (femoral),
                                    neuralgia.
8727                               Internal saphenous nerve, neuralgia.
8728                               Obturator nerve, neuralgia.
8729                               External cutaneous nerve of thigh
                                    neuralgia.
8730                               Ilio-inguinal nerve, neuralgia.
----------------------------------
                             the epilepsies
------------------------------------------------------------------------
8910                               Epilepsy, grand mal.
8911                               Epilepsy, petit mal.
8912                               Jacksonian type.
8913                               Epilepsy, diencephalic.
8914                               Epilepsy, psychomotor.
----------------------------------
                           psychotic disorders
------------------------------------------------------------------------
9200                               Schizophrenic reaction, simple type.
9201                               Schizophrenic reaction, hebephrenic
                                    type.
9202                               Schizophrenic reaction, catatonic
                                    type.
9203                               Schizophrenic reaction, paranoid
                                    type.
9204                               Schizophrenic reaction, chronic
                                    undifferentiated type.
9205                               Schizophrenic reaction, other.
9206                               Manic depressive reaction.
9207                               Psychotic depressive reaction.
9208                               Paranoid reaction (specify).
9209                               Involutional psychotic reaction.
9210                               Psychotic reaction, other.
----------------------------------
                         organic brain disorders
------------------------------------------------------------------------
9300                               Acute brain syndrome (associated with
                                    infection, trauma, circulatory
                                    disturbance, etc.).
9301                               Chronic brain syndrome associated
                                    with central nervous system syphilis
                                    (all forms).
9302                               Chronic brain syndrome associated
                                    with intracranial infections other
                                    than syphilis.
9303                               Chronic brain syndrome associated
                                    with intoxication.
9304                               Chronic brain syndrome associated
                                    with brain trauma.
9305                               Chronic brain syndrome associated
                                    with cerebral arteriosclerosis.
9306                               Chronic brain syndrome associated
                                    with circulatory disturbance other
                                    than cerebral arteriosclerosis.
9307                               Chronic brain syndrome associated
                                    with convulsive disorder (idiopathic
                                    epilepsy).
9308                               Chronic brain syndrome associated
                                    with disturbance of metabolism,
                                    growth or nutrition.
9309                               Chronic brain syndrome associated
                                    with intracra nial neoplasm.
9310                               Chronic brain syndrome associated
                                    with diseases of unknown or
                                    uncertain cause.
9311                               Chronic brain syndrome of unknown
                                    cause.
----------------------------------
                        psychoneurotic disorders
------------------------------------------------------------------------
9400                               Anxiety reaction.
9401                               Dissociative reaction.
9402                               Conversion reaction.
9403                               Phobic reaction.
9404                               Obsessive compulsive reaction.
9405                               Depressive reaction.
9406                               Psychoneurotic reaction, other.
----------------------------------
                       psychophysiologic disorders
------------------------------------------------------------------------
9500                               Psychophysiologic skin reaction.
9501                               Psychophysiologic cardiovascular
                                    reaction.
9502                               Psychophysiologic gastrointestinal
                                    reaction.
9503                               Psychophysiologic nervous system
                                    reaction.
9504                               Psychophysiologic reaction, other.
----------------------------------
                       dental and oral conditions
------------------------------------------------------------------------
9900                               Maxilla or mandible, osteomyelitis
                                    of.
9901                               Mandible, loss of, complete, between
                                    angles.
9902                               Mandible, loss of approximately one-
                                    half.
9903                               Mandible, nonunion of.
9904                               Mandible, malunion of.
9905                               Temporomandibular articulation,
                                    limited motion of.
9906                               Ramus, loss of whole or part of.
9907                               Ramus, loss of less than one-half the
                                    substance of, not involving loss of
                                    continuity.
9908                               Condyloid process, loss of, one or
                                    both sides.
9909                               Coronoid process, loss of.
9910                               Maxilla, loss of whole or part of
                                    substance of, nonunion of, or
                                    malunion of.
9911                               Hard palate, loss of half or more.
9912                               Hard palate, loss of less than half
                                    of.

[[Page 461]]

 
9913                               Teeth, loss of, due to loss of
                                    substance of body of maxilla or
                                    mandible.
------------------------------------------------------------------------


[29 FR 6718, May 22, 1964, as amended at 34 FR 5064, Mar. 11, 1969, 52 
FR 44122, Nov. 18, 1987; 53 FR 24938, July 1, 1988]

        Appendix C to Part 4--Alphabetical Index of Disabilities

------------------------------------------------------------------------
                                                              Diagnostic
                                                               Code No.
------------------------------------------------------------------------
Abscess:
  Brain.....................................................       8020
  Kidney....................................................       7501
  Liver.....................................................       7313
  Lung......................................................       6809
Actinomycosis, lung.........................................       6803
Addison's disease...........................................       7911
Adenitis, secondary.........................................       7713
Adenoma, thyroid:
  Nontoxic..................................................       7902
  Toxic.....................................................       7901
Adhesions:
  Pericardial...............................................       7003
  Peritoneum................................................       7301
Agranulocytosis.............................................       7702
Amebiasis...................................................       7321
Amputation:
  Arm:
    Disarticulation.........................................       5120
    Above deltoid...........................................       5121
    Below deltoid...........................................       5122
    Feet, both, and hand, one...............................       5103
    Feet, both..............................................       5107
  Finger (digit) individual:
    Thumb...................................................       5152
    Index...................................................       5153
    Middle..................................................       5154
    Ring....................................................       5155
    Little..................................................       5156
  Fingers (digits) of one hand:
    Five....................................................       5126
    Four, thumb, index, middle, ring........................       5127
    Four, thumb, index, middle, little......................       5128
    Four, thumb, index, ring, little........................       5129
    Four, thumb, middle, ring, little.......................       5130
    Four, index, middle, ring, little.......................       5131
    Three, thumb, index, middle.............................       5132
    Three, thumb, index, ring...............................       5133
    Three, thumb, index, little.............................       5134
    Three, thumb, middle, ring..............................       5135
    Three, thumb, middle, little............................       5136
    Three, thumb, ring, little..............................       5137
    Three, index, middle, ring..............................       5138
    Three, index, middle, little............................       5139
    Three, index, ring, little..............................       5140
    Three, middle, ring, little.............................       5141
    Two, thumb, index.......................................       5142
    Two, thumb, middle......................................       5143
    Two, thumb, ring........................................       5144
    Two, thumb, little......................................       5145
    Two, index, middle......................................       5146
    Two, index, ring........................................       5147
    Two, index, little......................................       5148
    Two, middle, ring.......................................       5149
    Two, middle, little.....................................       5150
    Two, ring, little.......................................       5151
  Forearm:
    Above pronator teres....................................       5123
    Below pronator teres....................................       5124
  Forefoot..................................................       5166
  Hand, one, and foot, one..................................       5108
  Hands, both, and feet, both...............................       5100
  Hands, both, and foot, one................................       5102
  Hands, both...............................................       5106
  Leg:
    With defective stump....................................       5163
    With loss of natural knee action........................       5164
    At lower level..........................................       5165
  Thigh:
    Disarticulation.........................................       5160
    Upper third.............................................       5161
    Middle or lower thirds..................................       5162
  Toe, great................................................       5171
  Toe, other, with removal metatarsal head..................       5172
  Toes, all.................................................       5170
  Toes, three or more.......................................       5173
Anemia:
  Pernicious................................................       7700
  Secondary.................................................       7701
Aneurysm:
  Aorta or branches.........................................       7110
  Arteriovenous, traumatic..................................       7113
  Artery....................................................       7111
Angioneurotic edema.........................................       7118
Ankylosis:
  Ankle.....................................................       5270
  Elbow.....................................................       5205
  Finger (digit) individual:
    Thumb...................................................       5224
    Index...................................................       5225
    Middle..................................................       5226
    Other...................................................       5227
  Fingers (digits) of one hand, unfavorable:
    Five....................................................       5216
    Four....................................................       5217
    Three...................................................       5218
    Two.....................................................       5219
  Hip.......................................................       5250
  Knee......................................................       5256
  Scapulohumeral............................................       5200
  Spine:
    Complete................................................       5286
    Cervical................................................       5287
    Dorsal..................................................       5288
    Lumbar..................................................       5289
  Subastragular or Tarsal...................................       5272
  Wrist.....................................................       5214
Anthracosis.................................................       6800
Aphakia.....................................................       6029
Aphonia, organic............................................       6519
Arteriosclerosis:
  Cerebral..................................................       8046
  General...................................................       7100
  Obliterans................................................       7114
Arteriosclerotic heart disease..............................       7005
Arthritis:
  Atrophic (rheumatoid).....................................       5002
  Gonorrheal................................................       5004
  Hypertrophic (degenerative)...............................       5003
  Other types...............................................       5009
  Pneumococcic..............................................       5005
  Streptococcic.............................................       5008
  Syphilitic................................................       5007
  Traumatic.................................................       5010
  Typhoid...................................................       5006

[[Page 462]]

 
Aspergillosis, lung.........................................       6807
Asthma, bronchial...........................................       6602
Astragalectomy..............................................       5274
Athetosis...................................................       8107
Atrophy:
  Muscular, progressive.....................................       8023
  Ovaries, both.............................................       7620
  Testis, both..............................................       7523
Auditory canal, disease.....................................       6210
Avitaminosis................................................       6313
Beriberi....................................................       6314
Blastomycosis, lung.........................................       6805
Blindness, anatomical loss, one eye:
  Other blind (5/200 or less)...............................       6063
  Other impaired (20/200 or less)...........................       6064
  Other impaired............................................       6065
  Other normal..............................................       6066
Blindness, light perception only:
  Both eyes.................................................       6062
  One eye:
    Other blind, 5/200 or less..............................       6067
    Other impaired, 20/200 or less..........................       6068
    Other impaired..........................................       6069
    Other normal............................................       6070
Blindness, light perception only and loss or loss of use of   6050-6061
 hands and/or feet..........................................
Blindness, total (5/200 or less):
  Both eyes.................................................       6071
  One eye:
    Other impaired, (20/200 or less)........................       6072
    Other impaired..........................................       6073
    Other normal............................................       6074
Blindness, partial (20/200 or less):
  Both eyes.................................................       6075
  One eye:
    Other impaired..........................................       6076
    Other normal............................................       6077
Blindness, partial:
  Both eyes.................................................       6078
  One eye only..............................................       6079
Block, auricular ventricular................................       7015
Bones, Caisson disease of...................................       5011
Bones and joints, tuberculosis of...........................       5001
Bronchiectasis..............................................       6601
Bronchitis..................................................       6600
Buerger's disease...........................................       7115
Brucellosis.................................................       6316
Bursitis....................................................       5019
Caisson disease.............................................       5011
Calculus, bladder...........................................       7515
Cataract:
  Senile and others.........................................       6028
  Traumatic.................................................       6027
Cervicitis..................................................       7612
Cholangitis.................................................       7316
Cholecystitis...............................................       7314
Cholelithiasis..............................................       7315
Cholera, Asiatic............................................       6300
Chorea:
  Huntington's..............................................       8106
  Sydenham's................................................       8105
Choroiditis.................................................       6005
Claw-foot (pes cavus) acquired..............................       5278
Cirrhosis of liver..........................................       7312
Claudication, intermittent..................................       7116
Coccidioidomycosis..........................................       6821
Colitis:
  Mucous (See Colon syndrome, irritable)....................       7319
  Spastic (See Colon syndrome, irritable)...................       7319
  Ulcerative................................................       7323
Collapse, lung, permanent...................................       6813
Colon syndrome, irritable...................................       7319
Congestion, lung, passive...................................       6817
Conjunctivitis:
  Trachomatous..............................................       6017
  Other.....................................................       6018
Coccyx......................................................       5298
Cushing's syndrome..........................................       7907
Cyclitis....................................................       6004
Cystitis:
  Chronic...................................................       7512
  Interstitial (Hunner).....................................       7513
Dacryocystitis..............................................       6031
Deafness
  0% evaluation based on Table VII..........................       6100
  10% evaluation based on Table VII.........................       6101
  20% evaluation based on Table VII.........................       6102
  30% evaluation based on Table VII.........................       6103
  40% evaluation based on Table VII.........................       6104
  50% evaluation based on Table VII.........................       6105
  60% evaluation based on Table VII.........................       6106
  70% evaluation based on Table VII.........................       6107
  80% evaluation based on Table VII.........................       6108
  90% evaluation based on Table VII.........................       6109
  100% evaluation based on Table VII........................       6110
Deflection, nasal septum....................................       6502
Dermatitis, exfoliativa.....................................       7817
Dermatophytosis.............................................       7813
Diabetes mellitus...........................................       7913
Diabetes insipidus..........................................       7909
Diaphragm, rupture..........................................       5324
Dilation, aneurysmal artery.................................       7112
Diplopia....................................................       6090
Disease:
  Addison's.................................................       7911
  Hodgkin's.................................................       7709
  Morton's..................................................       5279
  Raynaud's.................................................       7117
Dislocation:
  Cartilage, semilunar......................................       5258
  Lens, crystalline.........................................       6033
Disorders, mental:
  Organic brain disorders:
    Acute brain syndrome....................................       9300
    Chronic brain syndrome associated with:
      Central nervous system syphilis.......................       9301
      Intracranial infections other than syphilis...........       9302
      Intoxication..........................................       9303
      Brain trauma..........................................       9304
      Cerebral arteriosclerosis.............................       9305
      Circulatory disturbance other than cerebral                  9306
       arteriosclerosis.....................................
      Convulsive disorder (idiopathic epilepsy).............       9307
      Disturbance of metabolism, growth or nutrition........       9308
      Intracranial neoplasm.................................       9309
      Diseases of unknown or uncertain cause................       9310
      Unknown cause.........................................       9311
  Psychoneurotic disorders:
    Anxiety reaction........................................       9400
    Dissociative reaction...................................       9401
    Conversion reaction.....................................       9402
    Phobic reaction.........................................       9403
    Obsessive compulsive reaction...........................       9404
    Depressive reaction.....................................       9405
    Psychoneurotic reaction, other..........................       9406
  Psychophysiologic disorders:
    Psychophysiologic skin reaction.........................       9500
    Psychophysiologic cardiovascular reaction...............       9501

[[Page 463]]

 
    Psychophysiologic gastrointestinal reaction.............       9502
    Psychophysiologic nervous system reaction...............       9503
    Psychophysiologic reaction, other.......................       9504
  Psychotic disorders:
    Schizophrenic reaction:
      Simple type...........................................       9200
      Hebephrenic type......................................       9201
      Catatonic type........................................       9202
      Paranoid type.........................................       9203
      Chronic undifferentiated type.........................       9204
      Other.................................................       9205
      Manic depressive reaction.............................       9206
      Psychotic depressive reaction.........................       9207
      Paranoid reaction.....................................       9208
      Involutional psychotic reaction.......................       9209
      Psychotic reaction, other.............................       9210
Distomiasis, intestinal.....................................       7324
Diverticulitis, intestinal..................................       7327
Diverticulum of esophagus...................................       7205
Dupuytren's contracture--see Ankylosis, fingers.
Dysentery, bacillary........................................       7322
Ectropion...................................................       6020
Eczema......................................................       7806
Edema, angioneurotic........................................       7118
Embolism, brain.............................................       8007
Emphysema (No DC; follows DC 6602).
Encephalitis................................................       8000
Endocarditis, bacterial, subacute...........................       7001
Enteritis...................................................       7325
Enterocolitis...............................................       7326
Entropion...................................................       6021
Enucleation, eye, see Blindness.
Epilepsy:
  Grand mal.................................................       8910
  Petit mal.................................................       8911
  Jacksonian................................................       8912
  Diencephalic..............................................       8913
  Psychomotor...............................................       8914
Epiphora (lacrymal duct)....................................       6025
Erythromelalgia.............................................       7119
Eyelids, loss of portion of.................................       6032
Fever:
  Hemoglobinuric, see Malaria.
  Malta.....................................................       6316
  Oroya.....................................................       6306
  Relapsing.................................................       6308
  Rheumatic.................................................       6309
  Undulant..................................................       6316
Fibrillation, auricular:
  Paroxysmal................................................       7011
  Permanent.................................................       7012
Filariasis..................................................       6305
Fistula:
  Ano.......................................................       7335
  Bladder...................................................       7516
  Bronchocutaneous or bronchopleural........................       6812
  Intestine.................................................       7330
  Rectovaginal..............................................       7624
  Urethra...................................................       7625
Flail hip...................................................       5254
Flatfoot (pes planus) acquired..............................       5276
Flutter, auricular..........................................       7010
Fracture, vertebra, residuals of............................       5285
Frozen feet.................................................       7122
Gastritis, atrophic (see DC 7307).
Gastritis, hypertrophic.....................................       7307
Genu, recurvatum............................................       5263
Glaucoma:
  Congestive................................................       6012
  Noncongestive.............................................       6013
Gout........................................................       5017
Growths, new benign:
  Bones, joints and muscles.................................       5015
  Brain.....................................................       8003
  Digestive system..........................................       7344
  Ear.......................................................       6209
  Endocrine system..........................................       7915
  Eyeball and adnexa........................................       6015
  Genitourinary system......................................       7529
  Respiratory...............................................       6820
  Skin......................................................       7819
  Spinal cord...............................................       8022
Growths, new, malignant:
  Bones.....................................................       5012
  Brain.....................................................       8002
  Digestive system..........................................       7343
  Ear.......................................................       6208
  Endocrine system..........................................       7914
  Eyeball only..............................................       6014
  Genitourinary system......................................       7528
  Gynecological system or mammary glands....................       7627
  Respiratory...............................................       6819
  Skin......................................................       7818
  Spinal cord...............................................       8021
Hallux rigidus..............................................       5281
Hallux valgus...............................................       5280
Hammer toe..................................................       5282
Hematomyelia................................................       8012
Hemorrhage:
  Brain.....................................................       8009
  Intraocular...............................................       6007
Hemorrhoids.................................................       7336
Hepatitis, infectious.......................................       7345
Hernia:
  Femoral...................................................       7340
  Hiatal....................................................       7346
  Inguinal..................................................       7338
  Muscle....................................................       5326
  Ventral...................................................       7339
Hodgkin's disease...........................................       7709
Hydrarthrosis, intermittent.................................       5018
Hydronephrosis..............................................       7509
Hyperadrenia................................................       7910
Hyperparathyroidism.........................................       7904
Hyperpituitarism:
  Acromegaly or gigantism...................................       7908
  Cushing's syndrome........................................       7907
Hypertensive heart disease..................................       7007
Hypertensive vascular disease...............................       7101
Hyperthyroid heart disease..................................       7008
Hyperthyroidism.............................................       7900
Hypoadrenia.................................................       7911
Hypoparathyroidism..........................................       7905
Hypopituitarism.............................................       7909
Hypothyroidism..............................................       7903
Immersion foot..............................................       7122
Impairment:
  Auditory acuity, see Deafness.
  Clavicle..................................................       5203
  Elbow.....................................................       5209
  Eye (field vision)........................................       6080
  Eye (muscle function).....................................       6090
  Femur.....................................................       5255
  Humerus...................................................       5202
  Knee......................................................       5257
  Radius....................................................       5212
  Sphincter control.........................................       7332
  Supination and pronation..................................       5213
  Thigh, motion.............................................       5253
  Tibia and fibula..........................................       5262
  Ulna......................................................       5211
  Visual acuity, see Blindness.
Infarction of myocardium....................................       7006

[[Page 464]]

 
Injury:
  Bladder...................................................       7517
  Gall bladder..............................................       7317
  Eye, unhealed.............................................       6009
  Foot......................................................       5284
  Larynx....................................................       6517
  Lips......................................................       7201
  Liver.....................................................       7311
  Mouth.....................................................       7200
  Muscle:
    Facial..................................................       5325
    Group I.................................................       5301
    Group II................................................       5302
    Group III...............................................       5303
    Group IV................................................       5304
    Group V.................................................       5305
    Group VI................................................       5306
    Group VII...............................................       5307
    Group VIII..............................................       5308
    Group IX................................................       5309
    Group X.................................................       5310
    Group XI................................................       5311
    Group XII...............................................       5312
    Group XIII..............................................       5313
    Group XIV...............................................       5314
    Group XV................................................       5315
    Group XVI...............................................       5316
    Group XVII..............................................       5317
    Group XVIII.............................................       5318
    Group XIX...............................................       5319
    Group XX................................................       5320
    Group XXI...............................................       5321
    Group XXII..............................................       5322
    Group XXIII.............................................       5323
  Pleural cavity............................................       6818
  Prostate..................................................       7527
  Sacroiliac................................................       5294
  Spleen....................................................       7707
  Stomach, residuals........................................       7310
  Tongue, whole or part.....................................       7202
Intervertebral disc.........................................       5293
Iritis......................................................       6003
Kala-azar...................................................       6301
Keratitis...................................................       6001
Labyrinthitis...............................................       6204
Lagophthalmos...............................................       6022
Laryngectomy................................................       6518
Laryngitis..................................................       6516
Leishmaniasis:
  Americana.................................................       7807
  Old World.................................................       7808
Lens, crystalline, dislocation of...........................       6033
Leprosy.....................................................       6302
Leukemia....................................................       7703
Limitation of extension:
  Forearm...................................................       5207
  Leg.......................................................       5261
  Thigh.....................................................       5251
Limitation of field vision..................................       6080
Limitation of flexion:
  Forearm...................................................       5206
  Leg.......................................................       5260
  Thigh.....................................................       5252
Limitation of flexion and extension:
  Forearm...................................................       5208
Limitation of motion:
  Ankle.....................................................       5271
  Arm.......................................................       5201
  Cervical..................................................       5290
  Dorsal....................................................       5291
  Lumbar....................................................       5292
  Temporomandibular articulation............................       9905
  Wrist.....................................................       5215
Limitation, pronation.......................................       5213
Limitation, supination......................................       5213
Limitation of muscle function, eye..........................       6090
Lobectomy...................................................       6816
Loss:
  Auricle or deformity......................................       6207
  Condyloid process.........................................       9908
  Coronoid process..........................................       9909
  Eyebrows..................................................       6023
  Eyelashes.................................................       6024
  Mandible:
    Complete................................................       9901
    One-half................................................       9902
  Maxilla...................................................       9910
  Teeth.....................................................       9913
  Nose, loss of part, or scars..............................       6504
  Palate, hard:
    Half or more............................................       9911
    Less than half..........................................       9912
  Ramus:
    Less than one-half substance............................       9907
    Whole or part...........................................       9906
  Skull, part...............................................       5296
  Smell, sense of...........................................       6275
  Taste, sense of...........................................       6276
  Tongue or part............................................       7202
  Others, see Amputation, removal, etc.
Loss of use:
  Feet, both................................................       5110
  Feet, both, and hand, one.................................       5105
  Foot, one.................................................       5167
  Hand, one.................................................       5125
  Hand, one, and foot, one..................................       5111
  Hands, both, and feet, both...............................       5101
  Hands, both, and foot, one................................       5104
  Hands, both...............................................       5109
Lupus, erythematosus, discoid...............................       7809
Lupus, erythematosus systemic (disseminated)................       6350
Lupus, vulgaris.............................................       7811
Lymphogranulomatosis........................................       7709
Malaria.....................................................       6304
Malunion:
  Clavicle..................................................       5203
  Os calcis (or astragalus).................................       5273
  Mandible..................................................       9904
  Maxilla (or nonunion).....................................       9910
  Scapula...................................................       5203
  Tarsal or metatarsal (or nonunion)........................       5283
  Others, see Impairment.
Mastoiditis.................................................       6206
Meniere's disease...........................................       6205
Meningitis, cerebrospinal...................................       8019
Mental disorders--see Disorders, mental.
Metatarsalgia...............................................       5279
Metritis....................................................       7613
Migraine....................................................       8100
Muscle injury, see Injury, muscle.
Myasthenia gravis...........................................       8025
Mycosis, lung, unspecified..................................       6808
Myelitis....................................................       8010
Myositis....................................................       5021
Myositis ossificans.........................................       5023
Narcolepsy..................................................       8108
Nephritis, chronic..........................................       7502
Nephrolithiasis.............................................       7508
Nephrosclerosis, arteriolar.................................       7507
Neuralgia:
  Cranial nerves:
    Fifth (trigeminal)......................................       8405
    Seventh (facial)........................................       8407
    Ninth (glossopharyngeal)................................       8409

[[Page 465]]

 
    Tenth (pneumogastric, vagus)............................       8410
    Eleventh (spinal accessory, external branch)............       8411
    Twelfth (hypoglossal)...................................       8412
Peripheral nerves:
  Upper radicular group.....................................       8710
  Middle radicular group....................................       8711
  Lower radicular group.....................................       8712
  All radicular groups......................................       8713
  Musculospiral.............................................       8714
  Median....................................................       8715
  Ulnar.....................................................       8716
  Musculocutaneous..........................................       8717
  Circumflex................................................       8718
  Long thoracic.............................................       8719
  Sciatic...................................................       8720
  External popliteal........................................       8721
  Musculocutaneous (superficial peroneal)...................       8722
  Anterior tibial...........................................       8723
  Internal popliteal........................................       8724
  Posterior tibial..........................................       8725
  Anterior crural...........................................       8726
  Internal saphenous........................................       8727
  Obturator.................................................       8728
  External cutaneous, thigh.................................       8729
  Ilio-inguinal.............................................       8730
Neuritis, optic.............................................       6026
Neuritis:
  Cranial nerves:
    Fifth (trigeminal)......................................       8305
    Seventh (facial)........................................       8307
    Ninth (glossopharyngeal)................................       8309
    Tenth (pneumogastric, vagus)............................       8310
    Eleventh (spinal accessory, external branch)............       8311
    Twelfth (hypoglossal)...................................       8312
  Peripheral:
    Upper radicular group...................................       8610
    Middle radicular group..................................       8611
    Lower radicular group...................................       8612
    All radicular groups....................................       8613
    Musculospiral...........................................       8614
    Median..................................................       8615
    Ulnar...................................................       8616
    Musculocutaneous........................................       8617
    Circumflex..............................................       8618
    Long thoracic...........................................       8619
    Sciatic.................................................       8620
    External popliteal......................................       8621
    Musculocutaneous (superficial peroneal).................       8622
    Anterior tibial.........................................       8623
    Internal popliteal......................................       8624
    Posterior tibial........................................       8625
    Anterior crural.........................................       8626
    Internal saphenous......................................       8627
    Obturator...............................................       8628
    External cutaneous, thigh...............................       8629
    Ilio-inguinal...........................................       8630
Non-union of bones:
  Mandible..................................................       9903
  Radius and Ulna...........................................       5210
  Tibia and fibula..........................................       5262
  Others, see Impairment.
Nystagmus, central..........................................       6016
Oophoritis..................................................       7615
Oroya fever.................................................       6306
Osteitis deformans..........................................       5016
Osteomalacia................................................       5014
Osteomyelitis, jaw..........................................       9900
Osteomyelitis...............................................       5000
Osteoporosis................................................       5013
Otitis externa..............................................       6210
Otitis interna..............................................       6203
Otitis media:
  Catarrhal.................................................       6201
  Suppurative...............................................       6200
Otosclerosis................................................       6202
Palsy, bulbar...............................................       8005
Paralysis:
  Accommodation.............................................       6030
  Agitans...................................................       8004
Paralysis, nerve:
  Cranial:
    Fifth (trigeminal)......................................       8205
    Seventh (facial)........................................       8207
    Ninth (glossopharyngeal)................................       8209
    Tenth (pneumogastric, vagus)............................       8210
    Eleventh (spiral accessory, external branch)............       8211
    Twelfth (hypoglossal)...................................       8212
  Peripheral:
    Upper radicular group...................................       8510
    Middle radicular group..................................       8511
    Lower radicular group...................................       8512
    All radicular groups....................................       8513
    Musculospiral...........................................       8514
    Median..................................................       8515
    Ulnar...................................................       8516
    Musculocutaneous........................................       8517
    Circumflex..............................................       8518
    Long thoracic...........................................       8519
    Sciatic.................................................       8520
    External popliteal......................................       8521
    Musculocutaneous (superficial peroneal).................       8522
    Anterior tibial.........................................       8523
    Internal popliteal......................................       8524
    Posterior tibial........................................       8525
    Anterior crural.........................................       8526
    Internal saphenous......................................       8527
    Obturator...............................................       8528
    External cutaneous, thigh...............................       8529
    Ilio-inguinal...........................................       8530
Paramyoclonus multiplex.....................................       8104
Pellagra....................................................       6315
Pemphigus...................................................       7815
Penis, deformity of.........................................       7522
Perforation: Tympanic membrane                                     6211
Pericarditis................................................       7002
Periostitis.................................................       5022
Pes cavus...................................................       5278
Pes planus..................................................       5276
Phlebitis...................................................       7121
Pinta.......................................................       7810
Plague......................................................       6307
Pleurisy:
  Purulent (empyema)........................................       6811
  Serofibrinous.............................................       6810
Pluriglandular syndrome.....................................       7912
Pneumoconiosis..............................................       6802
Pneumonectomy...............................................       6815
Pneumothorax, spontaneous...................................       6814
Poliomyelitis, anterior.....................................       8011
Polycythemia................................................       7704
Pregnancy, surgical complications of........................       7623
Prolapse:
  Rectum....................................................       7334
  Uterus....................................................       7621
Pronation, limitation of....................................       5213
Pruritis, ani...............................................       7337
Psoriasis...................................................       7816
Psychiatric disorders, see Disorders, mental.
Pterygium...................................................       6034
Ptosis, eyelid..............................................       6019
Purpura, hemorrhagica.......................................       7705

[[Page 466]]

 
Pyelitis....................................................       7503
Pyelonephritis, chronic.....................................       7504
Raynaud's disease...........................................       7117
Removal:
  Auricle or deformity......................................       6207
  Cartilage, semilunar......................................       5259
  Coccyx....................................................       5298
  Gall bladder..............................................       7318
  Kidney....................................................       7500
  Mammary glands............................................       7626
  Ovaries, both.............................................       7619
  Penis, half or more.......................................       7520
  Penis, glans..............................................       7521
  Prostate, or resection....................................       7526
  Ribs......................................................       5297
  Testis....................................................       7524
  Uterus....................................................       7618
  Uterus and ovaries........................................       7617
  Others, see Amputation, loss, etc.
Resection:
  Intestine:
    Large...................................................       7329
    Small...................................................       7328
  Stomach...................................................       7308
Retina, detachment of.......................................       6008
Retinitis...................................................       6006
Rheumatic fever.............................................       6309
Rheumatic heart disease.....................................       7000
Rhinitis: Atrophic..........................................       6501
Rupture, diaphragm..........................................       5324
Salpingitis.................................................       7614
Scars:
  Burns, second degree......................................       7802
  Burns, third degree.......................................       7801
  Head, etc., disfiguring...................................       7800
  Retina....................................................       6011
  Superficial, tender.......................................       7804
  Superficial, with ulceration..............................       7803
  Others....................................................       7805
Scleritis...................................................       6002
Sclerosis:
  Amyotrophic, lateral......................................       8017
  Multiple..................................................       8018
Scotoma, pathological.......................................       6081
Shortening, leg.............................................       5275
Silicosis...................................................       6801
Sinusitis:
  Ethmoid...................................................       6511
  Frontal...................................................       6512
  Maxillary.................................................       6513
  Pansinusitis..............................................       6510
  Sphenoid..................................................       6514
Spasm, esophagus............................................       7204
Splenectomy.................................................       7706
Sporotrichosis, lung........................................       6806
Stenosis:
  Larynx....................................................       6520
  Stomach...................................................       7309
Strain, lumbosacral.........................................       5295
Streptotrichosis, lung......................................       6804
Stricture:
  Esophagus.................................................       7203
  Rectum, anus..............................................       7333
  Ureter....................................................       7511
  Urethra...................................................       7518
Supination, limitation of...................................       5213
Symblepharon................................................       6091
Syndrome:
  Cushing's.................................................       7907
  Intervertebral disc.......................................       5293
  Meniere's.................................................       6205
  Pluriglandular............................................       7912
  Postgastrectomy...........................................       7308
Synovitis...................................................       5020
Syphilis:
  Cerebrospinal.............................................       8013
  Meningovascular...........................................       8014
  Unspecified...............................................       6310
Syphilitic heart disease....................................       7004
Syringomyelia...............................................       8024
Tabes dorsalis..............................................       8015
Tachycardia:
  Paroxysmal................................................       7013
  Sinus.....................................................       7014
Tenosynovitis...............................................       5024
Thrombo-anglitis obliterans.................................       7115
Thrombophlebitis............................................       7121
Thrombosis, brain...........................................       8008
Tic, convulsive.............................................       8103
Tinea barbae................................................       7814
Tinnitus....................................................       6260
Tuberculosis:
  Adenitis, tuberculous:
    Axillary................................................       7711
    Cervical................................................       7710
    Inguinal................................................       7712
  Bladder...................................................       7514
  Bones and joints..........................................       5001
  Epididymo-orchitis, tuberculous...........................       7525
  Eye.......................................................       6010
  Kidney....................................................       7505
  Laryngitis, tuberculous...................................       6515
  Luposa....................................................       7811
  Miliary...................................................       6311
  Nonpulmonary, inactive (see Sec. 4.89)
  Peritonitis, tuberculous..................................       7331
  Pleurisy, tuberculous.....................................       6732
  Pulmonary:
    Active:
      Far advanced..........................................     6701 &
                                                                   6707
      Moderately advanced...................................     6702 &
                                                                   6708
      Minimal...............................................     6703 &
                                                                   6709
      Advancement unspecified...............................     6704 &
                                                                   6710
    Inactive:
      Far advanced..........................................     6721 &
                                                                   6725
      Moderately advanced...................................     6722 &
                                                                   6726
      Minimal...............................................     6723 &
                                                                   6727
      Advancement unspecified...............................     6724 &
                                                                   6728
Tympanic membrane, perforation of...........................       6211
Typhus, scrub...............................................       6317
Ulcer:
  Duodenal..................................................       7305
  Gastric...................................................       7304
  Marginal..................................................       7306
Undescended testis (see Note under DC 7524).
Uterus, displacement of.....................................       7622
Ureterolithiasis............................................       7510
Uveitis.....................................................       6000
Vaginitis...................................................       7611
Varicose veins..............................................       7120
Verruga peruana.............................................       7812
Vertebra, fracture..........................................       5285
Visceroptosis...............................................       7342
Vision, impairment of, see Blindness.
Vulvovaginitis..............................................       7610
Weak foot...................................................       5277

[[Page 467]]

 
Wound, incised, abdominal wall..............................       7341
------------------------------------------------------------------------


[29 FR 6718, May 22, 1964, as amended at 34 FR 5064, Mar. 11, 1969; 52 
FR 44122, Nov. 18, 1987; 53 FR 24938, July 1, 1988]

                            PART 5 [RESERVED]



PART 6_UNITED STATES GOVERNMENT LIFE INSURANCE--Table of Contents




                                   Age

Sec.
6.1 Misstatement of age.

                                Premiums

6.2 Premium rate.

                                Policies

6.3 Incontestability of United States Government life insurance.

         Beneficiary of United States Government Life Insurance

6.4 Proof of age, relationship and marriage.
6.5 Conditional designation of beneficiary.
6.6 Change of beneficiary.
6.7 Claims of creditors, taxation.

                           Optional Settlement

6.8 Selection, revocation and election.
6.9 Election of optional settlement by beneficiary.
6.10 Options.

                                Dividends

6.11 How dividends are paid.
6.12 Special dividends.

                                  Loans

6.13 Policy loans.

                               Cash Value

6.14 Cash value; other than special endowment at age 96 plan policy.
6.15 Cash value; special endowment at age 96 plan policy.
6.16 Payment of cash value in monthly installments.

                              Indebtedness

6.17 Collection of any indebtedness.

                   Total Permanent Disability Benefits

6.18 Other disabilities deemed to be total and permanent.

                             Death Benefits

6.19 Evidence to establish death of the insured.

    Determination of Liability Under Sections 302 and 313, World War 
 Veterans' Act, 1924, Sections 607 and 602(v)(2), National Service Life 
Insurance Act, 1940, as Amended, and Sections 1921 and 1957 of Title 38, 
                           United States Code

6.20 Jurisdiction.

                                 Appeals

6.21 Guardian: definition and authority.

    Authority: 38 U.S.C. 501, 1940-1963, 1981-1988, unless otherwise 
noted.

                                   Age



Sec. 6.1  Misstatement of age.

    If the age of the insured under a United States Government life 
insurance policy has been understated, the amount of the insurance 
payable under the policy shall be such exact amount as the premium paid 
would have purchased at the correct age; if overstated, the excess of 
premiums paid shall be refunded without interest. Guaranteed surrender 
and loan values will be modified accordingly. The age of the insured 
will be admitted by the Department of Veterans Affairs at any time upon 
satisfactory proof.

[13 FR 7089, Nov. 27, 1948. Redesignated at 61 FR 29024, June 7, 1996]

                                Premiums



Sec. 6.2  Premium rate.

    Effective January 1, 1983, United States Government Life Insurance 
policies, and total disability income provisions, on a premium paying 
status are paid-up and no premiums are required to maintain such 
policies and provisions in force.

[48 FR 1960, Jan. 17, 1983. Redesignated and amended at 61 FR 29024, 
29025, June 7, 1996]

                                Policies



Sec. 6.3  Incontestability of United States Government life insurance.

    Discharge or release of an insured from military or naval service 
for the reason of fraudulent enlistment shall not invalidate United 
States Government life insurance issued on the basis

[[Page 468]]

of such service unless the Secretary determines that the insured was 
mentally or legally incapable of entering into a contract of enlistment. 
In such case the United States Government life insurance so issued will 
be canceled as of the effective date of such insurance.

[13 FR 7091, Nov. 27, 1948, as amended at 17 FR 3162, Apr. 10, 1952; 24 
FR 7321, Sept. 11, 1959. Redesignated and amended at 61 FR 29024, 29025, 
June 7, 1996]

         Beneficiary of United States Government Life Insurance



Sec. 6.4  Proof of age, relationship and marriage.

    Whenever it is necessary for a claimant to prove age, relationship 
or marriage, the provisions of 38 U.S.C. 103(c) and Part 3 this chapter 
will be followed.

[26 FR 1856, Mar. 3, 1961. Redesignated and amended at 61 FR 29024, 
29025, June 7, 1996]



Sec. 6.5  Conditional designation of beneficiary.

    If the insured by notice in writing to the Department of Veterans 
Affairs during his or her lifetime has provided that a designated 
beneficiary shall be entitled to the proceeds of United States 
Government life insurance only if such beneficiary shall survive him or 
her for such period (not more than 30 days), as specified by the 
insured, no right to the insurance shall vest as to such beneficiary 
during that period. In the event such beneficiary fails to survive the 
specified period, payment of the proceeds of United States Government 
life insurance will be made as if the beneficiary had predeceased the 
insured.

[14 FR 7175, Nov. 29, 1949, as amended at 46 FR 57043, Nov. 20, 1981. 
Redesignated at 61 FR 29024, June 7, 1996]



Sec. 6.6  Change of beneficiary.

    The insured under United States Government life insurance shall have 
the right at any time and from time to time and without the consent or 
knowledge of the beneficiary to change the beneficiary. A change of 
beneficiary must be made by written notice to the Department of Veterans 
Affairs over the signature of the insured and shall not be binding on 
the United States unless received by the Department of Veterans Affairs. 
A change of beneficiary must be forwarded to the Department of Veterans 
Affairs by the insured or his or her agent and must contain sufficient 
information to identify the insured. Whenever practicable, such notices 
shall be given on forms prescribed by the Department of Veterans 
Affairs. Upon receipt by the Department of Veterans Affairs, a change of 
beneficiary shall be deemed effective as of the date the insured signed 
the written notice. The United States shall be protected in all payments 
made to the beneficiary last of record and before receipt of notice of a 
change of beneficiary, and no payments so made shall be paid again to 
the changed beneficiary. The insured may exercise any right or privilege 
given under the provisions of a United States Government life insurance 
policy without the consent of the beneficiary. An original designation 
of a beneficiary may be made by the last will and testament, but no 
change of beneficiary may be made by the last will and testament. The 
provisions of the ``beneficiary'' clause in United States Government 
life insurance policies are hereby amended accordingly.

[17 FR 11071, Dec. 5, 1952, as amended at 46 FR 57043, Nov. 20, 1981. 
Redesignated at 61 FR 29024, June 7, 1996]



Sec. 6.7  Claims of creditors, taxation.

    (a) Effective January 1, 1958, payments of insurance to a 
beneficiary under a United States Government life insurance policy shall 
be subject to levy for taxes due the United States by such beneficiary.
    (b) The provisions of 38 U.S.C. 5301(b) which entitle the United 
States to collect by setoff out of benefits payable to any beneficiary 
under a United States Government life insurance policy do not apply to 
dividends being held to the credit of the insured for the payment of 
premiums under the provisions of section 1946 of title 38 U.S.C.

(Authority: 38 U.S.C. 5301)

[23 FR 681, Feb. 1, 1958, as amended at 24 FR 15, Jan. 1, 1959; 24 FR 
582, Jan. 27, 1959; 46 FR 57043, Nov. 20, 1981. Redesignated and amended 
at 61 FR 29024, 29025, June 7, 1996]

[[Page 469]]

                           Optional Settlement



Sec. 6.8  Selection, revocation and election.

    The insured under a United States Government Life Insurance policy 
may, upon written notice, select an optional settlement. Such optional 
settlement may be revoked by written notice. If the insured does not 
select one of the optional settlements, as set out under the provisions 
of the policy, the insurance shall be payable in 240 monthly 
installments unless the beneficiary elects in writing a different 
option.

[61 FR 29025, June 7, 1996]



Sec. 6.9  Election of optional settlement by beneficiary.

    If the insured has selected an optional settlement then at the death 
of the insured the designated beneficiary may elect to receive the 
proceeds of insurance in installments spread over a greater period of 
time than that selected by the insured and in accordance with the 
following provisions.


(Authority: 38 U.S.C. 1952)

    (a) If the insured has selected Option 1, the beneficiary may elect 
to receive payment under Option 2, 3, or 4.
    (b) If the insured has selected Option 2 with monthly installments 
not in excess of 120, the beneficiary may elect to receive payment in a 
greater number of installments under Option 2, or may elect to receive 
payment under Option 3 or 4.
    (c) If the insured has selected Option 2 with monthly installments 
in excess of 120, the beneficiary may elect to receive payment in a 
greater number of installments under Option 2, or may elect to receive 
payment under Option 3.
    (d) If the insured has selected Option 3, and named no contingent 
beneficiary, the beneficiary may elect to receive payment under Option 
4.
    (e) If the insured has selected Option 4, the beneficiary may elect 
to receive payment under Option 3.

If the insured has selected settlement under Option 1, a beneficiary who 
has elected to receive payment under Option 2, 3, or 4 may elect to 
receive the commuted value of any remaining unpaid installments certain 
(240 less the number paid in case of Option 3, or 120 less the number 
paid in the case of Option 4): Provided, That where the commutation is 
elected under Option 3 or 4 after payment under such option has 
commenced, and the beneficiary survives the period certain, such 
beneficiary shall be entitled to the resumption of monthly installments 
payable for life in accordance with the monthly income option previously 
selected by such beneficiary. The entitlement to the resumption of 
monthly installments will be effective as of the monthly payment date 
next following the expiration of the period certain. Settlement under 
any one of the options or payment to the beneficiary of said commuted 
value under Option 2 or payment of said commuted value under Options 3 
and 4 to the beneficiary who does not survive the period certain shall 
be in full and complete discharge of all liability under the contract. 
Any other change in the mode of settlement may, within the limitations 
set forth in paragraphs (a) through (e) of this section, be made by a 
beneficiary after payment has commenced, provided the change is made 
within 1 year of the original election and in those instances where 
Option 3 is changed to Option 1 or 2; or Option 4 is changed to Option 
1, 2, or 3, satisfactory proof is submitted to establish that the 
beneficiary's state of health is the same as it was at time of original 
election. The effective date of the original election for this purpose 
will be the date it was delivered to the Department of Veterans Affairs. 
If such election was forwarded by mail, properly addressed to the 
Department of Veterans Affairs, the postmark date will be taken as the 
date of delivery. Such change will be made on the premise that the new 
election was made initially, and the account will be adjusted 
accordingly. A condition precedent to any such change will be the 
repayment of any amount received by the beneficiary in excess of that 
which would have been due had the new election been made initially.

[32 FR 14274, Oct. 14, 1967, as amended at 48 FR 8069, Feb. 25, 1983. 
Redesignated and amended at 61 FR 29025, June 7, 1996]

[[Page 470]]



Sec. 6.10  Options.

    Insurance will be payable in one sum only when selected by the 
insured during his or her lifetime or by his or her last will and 
testament.

[61 FR 29025, June 7, 1996]

                                Dividends



Sec. 6.11  How dividends are paid.

    (a) Regular annual dividends becoming payable on or after December 
31, 1958, shall be payable on the date preceding the anniversary of the 
policy unless the Secretary shall declare them payable on some other 
date.
    (b) If the insured has a National Service Life Insurance policy or 
policies in force, dividends used to pay premiums in advance will be 
held to the credit of the insured, unless otherwise directed by the 
insured.
    (c) In the event premiums on more than one policy having the same 
premium due date are unpaid and the dividend credit of the insured for 
application to payment of premiums is not sufficient to keep all 
policies in force, in the absence of instructions to the contrary by the 
insured, such dividend credit will be applied to pay premiums in such 
manner as will provide the maximum amount of insurance protection.
    (d) Dividend credit of the insured held for payment of premiums as 
provided in section 1946 of title 38 U.S.C., may not be used to satisfy 
any indebtedness due the United States without the insured's consent. If 
the insured requests payment of such dividend credit, or any unused 
portion thereof, in cash, or requests that such credit be left to 
accumulate on deposit, then any indebtedness due the United States, such 
as described in Sec. 6.7 will be recovered therefrom.
    (e) Dividend credit of the insured held for payment of premiums or 
dividends left to accumulate on deposit may be applied to the payment of 
premiums in advance on any National Service Life Insurance policy upon 
written request of the insured made before default in payment of 
premium. Upon maturity of the policy, any unpaid dividend will be paid 
to the person(s) currently entitled to receive payments under the 
policy.

(Authority: 38 U.S.C. 1944)

[24 FR 15, Jan. 1, 1959, as amended at 25 FR 7369, Aug. 5, 1960; 28 FR 
12544, Nov. 23, 1963; 32 FR 13927, Oct. 6, 1967; 48 FR 1962, Jan. 17, 
1983. Redesignated and amended at 61 FR 29025, June 7, 1996]



Sec. 6.12  Special dividends.

    Any special U.S. Government Life Insurance dividend that may be 
declared shall be paid in cash. Such special dividends shall not be 
accepted to accumulate on deposit or as a dividend credit.

(Authority: 38 U.S.C. 1944)

[36 FR 368, Jan. 12, 1971, as amended at 48 FR 1963, Jan. 17, 1983. 
Redesignated at 61 FR 29025, June 7, 1996]

                                  Loans



Sec. 6.13  Policy loans.

    At any time after the first policy year and upon the execution of a 
loan agreement satisfactory to the Secretary the United States will lend 
to the insured on the sole security of his/her United States Government 
Life Insurance policy any amount which shall not exceed 94 percent of 
the cash value, and any indebtedness shall be deducted from the amount 
advanced on such loan. The loan shall bear interest at a rate not to 
exceed 5 percent per annum, payable annually, and the loan may be repaid 
in full or in amounts of $5 or more. Failure to pay either the amount of 
the loan or the interest thereon shall not void the policy unless the 
total indebtedness shall equal or exceed the cash value thereof. When 
the amount of the indebtedness equals or exceeds the cash value, the 
policy shall cease and become void.

(Authority: 38 U.S.C. 1944)

[48 FR 1963, Jan. 17, 1983. Redesignated and amended at 61 FR 29025, 
June 7, 1996]

                               Cash Value



Sec. 6.14  Cash value; other than special endowment at age 96 plan policy.

    Provisions for cash value shall become effective at the completion 
of the first policy year on any plan of United States Government Life 
Insurance other than the special endowment at

[[Page 471]]

age 96 plan policy; all values, reserves, and net single premiums being 
based on the American Experience Table of Mortality, with interest at 
the rate of 3\1/2\ percent per annum. The cash value shall be the 
reserve together with any dividend accumulations. For each month after 
the first policy year the reserve at the end of the preceding policy 
year shall be increased by one-twelfth of the increase in reserve for 
the current policy year. Upon written request therefor and upon complete 
surrender of the insurance with all claims thereunder made by the 
insured the United States will pay to the insured the cash value of the 
policy less any indebtedness. Unless otherwise requested by the insured, 
a surrender will be deemed completed as of the end of the month in which 
the application for cash surrender is delivered to the Department of 
Veterans Affairs, or as of the date of the check for the cash value, 
whichever is later. If the application is forwarded by mail, properly 
addressed, the postmark date will be taken as the date of delivery.

(Authority: 38 U.S.C. 1944)

[48 FR 1963, Jan. 17, 1983. Redesignated and amended at 61 FR 29025, 
June 7, 1996]



Sec. 6.15  Cash value; special endowment at age 96 plan policy.

    Provisions for cash value shall become effective at the completion 
of the first policy year; all values and net single premiums are as 
prescribed by the Secretary and published in VA Pamphlet 90-2A. The cash 
value at the end of the first policy year and at the end of any policy 
year thereafter shall be the reserve as set forth in the policy together 
with any dividend accumulations. For each month after the first policy 
year the reserve at the end of the preceding policy year shall be 
increased by one-twelfth of the increase in reserve for the current 
policy year. Upon written request therefor and upon complete surrender 
of the insurance with all claims thereunder made by the insured, the 
United States will pay to the insured the cash value of the policy less 
any indebtedness, provided the policy has been in force for at least 1 
year. Unless otherwise requested by the insured, a surrender will be 
deemed completed as of the end of the month in which the application for 
cash surrender is delivered to the Department of Veterans Affairs, or as 
of the date of the check for the cash value, whichever is later. If the 
application is forwarded by mail, properly addressed, the postmark date 
will be taken as the date of delivery. If it is forwarded through 
military channels, the date the application is placed in military 
channels will be taken as the date of delivery.

(Authority: 38 U.S.C. 1944)

[48 FR 1963, Jan. 17, 1983. Redesignated at 61 FR 29025, June 7, 1996]



Sec. 6.16  Payment of cash value in monthly installments.

    Effective January 1, 1971, in lieu of payment of cash value in one 
sum, the insured may elect to receive payment in monthly installments 
under option 2 as set forth in the insurance contract or as a refund 
life income option. If the insured dies before the agreed number of 
monthly installments have been paid, the remaining unpaid monthly 
installments will be payable to the designated beneficiary in one sum, 
unless the insured or such beneficiary has elected to continue the 
installments under the option selected by the insured. If no designated 
beneficiary survives, the present value of any remaining unpaid 
installments shall be paid to the estate of the insured, provided such 
payment would not escheat.

[61 FR 29025, June 7, 1996]

                              Indebtedness



Sec. 6.17  Collection of any indebtedness.

    At the maturity of a United States Government life insurance policy 
by total permanent disability or death, any indebtedness, unless paid 
off in cash, shall be liquidated by reducing the amount of each monthly 
installment in the proportion which the indebtedness bears to the 
commuted value of monthly installments as may then be payable under the 
policy, excluding dividend accumulations. If the policy is payable in 
one sum at death, any indebtedness shall be deducted from the amount 
payable under the policy.

[13 FR 7096, Nov. 27, 1948. Redesignated at 61 FR 29025, June 7, 1996]

[[Page 472]]

                   Total Permanent Disability Benefits



Sec. 6.18  Other disabilities deemed to be total and permanent.

    (a) In addition to the conditions specified in 38 U.S.C. 1958, the 
following also will be deemed to be total and permanent disabilities: 
Organic loss of speech; permanently helpless or permanently bedridden.
    (b) Organic loss of speech will mean the loss of the ability to 
express oneself, both by voice and whisper, through the normal organs of 
speech if such loss is caused by organic changes in such organs. Where 
such loss exists, the fact that some speech can be produced through the 
use of an artificial appliance or other organs of the body will be 
disregarded.

[61 FR 29025, June 7, 1996]

                             Death Benefits



Sec. 6.19  Evidence to establish death of the insured.

    Whenever a claim is filed on account of the death of a person 
insured under yearly renewable term insurance or United States 
Government life insurance, the proof of death shall be established in 
accordance with the provisions of Part 3 of this chapter.

[26 FR 1856, Mar. 3, 1961. Redesignated and amended at 61 FR 29025, June 
7, 1996]

    Determination of Liability Under Sections 302 and 313, World War 
Veterans' Act, 1924, Sections 607 and 602 (v)(2), National Service Life 
Insurance Act, 1940, as Amended, and Sections 1921 and 1957 of Title 38 
                           United States Code



Sec. 6.20  Jurisdiction.

    The Insurance Claims Sections are vested with exclusive jurisdiction 
in determining the liability of the United States and the United States 
Government Life Insurance Fund for waiver of payment of premiums, 
payment of total, total permanent disability, and death insurance 
benefits under United States Government life insurance and to determine 
the liability of the United States and the National Service Life 
Insurance Fund for waiver of payment of premiums due to total 
disability, payment of total disability insurance benefits, and death 
insurance benefits under National Service life insurance.

(Authority: 38 U.S.C. 1944)

[27 FR 9604, Sept. 28, 1962, as amended at 48 FR 1965, Jan. 17, 1983. 
Redesignated at 61 FR 29025, June 7, 1996]

                                 Appeals



Sec. 6.21  Guardian: definition and authority.

    (a) Definition. For the purpose of this section, the term guardian 
includes any fiduciary certified by the appropriate Veterans Services 
Officer under Sec. 13.55 of this title to receive benefits in a 
fiduciary capacity for an insured or beneficiary.
    (b) Authority. For the purpose of this part, a guardian of an 
insured or beneficiary shall have authority to: Apply for conversion of 
a policy or change of plan; reinstate a policy; withdraw dividends held 
on deposit or credit; select or change a dividend option; obtain a 
policy loan; cash surrender a policy; authorize a deduction from 
benefits or allotment from military retired pay to pay premiums; apply 
for and receive payment of the proceeds on a matured policy; select or 
change the premium payment option; apply for waiver of premiums; select 
or change the settlement option for beneficiaries; assign a 
beneficiary's interest as provided under section 1953 of title 38 U.S.C.

(Authority: 38 U.S.C. 1944)

[56 FR 9627, Mar. 7, 1991. Redesignated at 61 FR 29025, June 7, 1996]



PART 7_SOLDIERS' AND SAILORS' CIVIL RELIEF--Table of Contents




       Soldiers' and Sailors' Civil Relief Act Amendments of 1942

Sec.
7.2 Certification of military service.
7.3 The policy.
7.4 The premium.
7.5 Application.
7.6 Benefits.
7.7 Maturity.
7.8 Beneficiary or assignee.

    Authority: 50 U.S.C. app. 511, 540-547, unless otherwise noted.

    Source: 13 FR 7103, Nov. 27, 1948, unless otherwise noted.

[[Page 473]]

       Soldiers' and Sailors' Civil Relief Act Amendments of 1942



Sec. 7.2  Certification of military service.

    (a) A statement over the signature of the Commanding Officer or a 
commissioned officer of equal or higher rank than the insured, on the 
insured's application, may be accepted as a certification that the 
insured is a person in the military service.
    (b) If the insured is unavailable because of service, the 
application may be certified by the person who has custody of the 
insured's service record.
    (c) If an application is submitted by a person designated by the 
insured or by the insured's beneficiary, the Department of Veterans 
Affairs will obtain from the service department evidence that the 
insured is a person in the military service.

(Authority 50 U.S.C. app. 547)

[61 FR 29026, June 7, 1996]



Sec. 7.3  The policy.

    (a) Any provision in a policy that may limit or eliminate a benefit 
other than the primary death benefit will not, because of such 
provision, place the policy outside the protection of the Act if it is 
otherwise eligible for protection.
    (b) An annuity contract, if it provides payment of a substantial 
death benefit in the nature of life insurance, may be included within 
the provisions of the Act if otherwise eligible. Group insurance will 
not be included unless an individual and separate contract of insurance 
is completely released to the insured and thereafter comes within the 
provisions of the Act as a policy.
    (c) The phrase Face amount of insurance as used in the regulations 
in this part will mean the amount of insurance payable as a death 
benefit; Provided, That any indebtedness, or any accruals (such as paid-
up additions, dividend accumulations, etc.) that may be added to or 
taken from the amount payable as the death benefits will not be used in 
calculating the face amount of a policy.

[13 FR 7103, Nov. 27, 1948, as amended at 21 FR 7297, Sept. 25, 1956. 
Redesignated and amended at 61 FR 29026, June 7, 1996]



Sec. 7.4  The premium.

    The term premium as defined under 50 U.S.C. app. 540(b) shall 
include membership dues and assessments in an association.
    (a) The premium on a policy will be calculated on an annual basis, 
and if the annual premium is not stated on the policy, the insurer will 
make a calculation of the premiums for payment in advance and discounted 
at not less than 3\1/2\ percent, subject to approval by the Department 
of Veterans Affairs.
    (b) Premiums will not be guaranteed for benefits additional to the 
primary death benefit if, when combined with the amount of the primary 
death benefit, the total benefit would result in a payment in excess of 
$10,000 or if liability for such benefits is excluded or restricted by 
military service or any activity which the insured may be called upon to 
perform in connection with military service. In the event that premiums 
for the primary and additional benefits are not separable under the 
terms of the policy the entire policy will be guaranteed, if the policy 
is otherwise eligible for protection under the law.

[13 FR 7103, Nov. 27, 1948. Redesignated and amended at 61 FR 29026, 
June 7, 1996]



Sec. 7.5  Application.

    (a) The benefits of the Act are not available except upon 
application. The insured may designate any person, firm, or corporation 
to submit an application on his or her behalf. The designation must be 
in writing, signed by the insured and attached to the application.
    (b) When an application for benefits is received by an insurer, a 
report thereof will be made within 30 days to the Department of Veterans 
Affairs Regional Office and Insurance Center at Philadelphia, 
Pennsylvania. The insurer may submit with the report a statement setting 
forth any additional information deemed necessary to the adjudication of 
the application, and any facts and reasoning as to why the

[[Page 474]]

policy should or should not be protected under the Act.

[13 FR 7103, Nov. 27, 1948, as amended at 26 FR 11802, Dec. 8, 1961; 27 
FR 656, Jan. 23, 1962. Redesignated and amended at 61 FR 29026, June 7, 
1996]



Sec. 7.6  Benefits.

    Any policy found to be entitled to protection under the provisions 
of the Act will not lapse or otherwise terminate or be forfeited for the 
nonpayment of a premium or the nonpayment of any indebtedness or 
interest during the period of military service of the insured and two 
years after the expiration of such service. If the insured reenters 
military service during the two-year period following separation from 
such service and the policy is under the protection of the Act on the 
date of reentry, such reentrance shall be deemed to be a continuation of 
the previous military service. In such case, in the absence of written 
instruction from the insured to the contrary, the protection under the 
Act will continue during the period of military service of the insured 
and two years after the expiration of such service, but the guarantee 
will not extend for more than two years after the date when the Act 
ceases to be in force.
    (a) For the period during which a policy is protected by the 
provisions of the Act, any dividends, return of premiums, or other such 
monetary benefits arising out of the contract or by reason thereof, will 
be held subject to disposal or to be applied as may be approved by the 
Department of Veterans Affairs.
    (b) A policy will not be removed from the protection of the Act by 
reason of a payment made to the insurer by or on behalf of the insured, 
but any tender of a premium (in whole or in part) shall be applied on 
the indebtedness established under authority of the Act against the 
policy: Provided, That nothing herein shall prevent an insured from 
continuing payment to the insurer of premiums to cover any additional 
benefits (such as double indemnity, waiver of premium, etc.) where such 
premiums may not be included in the amount guaranteed by the Government.

[13 FR 7103, Nov. 27, 1948, as amended at 27 FR 2287, Mar. 9, 1962. 
Redesignated and amended at 61 FR 29026, June 7, 1996]



Sec. 7.7  Maturity.

    (a) The phrase maturity of a policy as a death claim or otherwise 
(SSCRA, as amended) will not include a termination or maturity of a 
policy as a disability claim, and the policy will continue under the 
provisions of the Act as if there had been no maturity, but the 
Government shall not be liable for any premiums that the insured would 
have been relieved of paying under any provisions for payment of 
premiums in the policy.
    (b) Upon the expiration of the period of protection, the insurer 
will submit to the Department of Veterans Affairs a complete statement 
of the account on each policy, which will show the amount of 
indebtedness by reason of the premiums with interest and the credits, if 
any, then available and will be subject to audit and approval by the 
Department of Veterans Affairs. The statement of account will include 
the rate of interest charged on all indebtedness, the date of debit and 
credit entries, and such other information as may be deemed necessary in 
making an audit of the account.

[13 FR 7103, Nov. 27, 1948, as amended at 27 FR 656, Jan. 23, 1962. 
Redesignated and amended at 61 FR 29026, June 7, 1996]



Sec. 7.8  Beneficiary or assignee.

    The consent of a beneficiary, assignee, or any other person who may 
have a right or interest in the proceeds of the policy is not a 
prerequisite for placing a policy under the protection of the Act.

[61 FR 29026, June 7, 1996]



PART 8_NATIONAL SERVICE LIFE INSURANCE--Table of Contents




                              Applications

Sec.
8.0 Definitions of terms used in connection with title 38 CFR, part 8, 
          National Service Life Insurance.

[[Page 475]]

                             Effective Date

8.1 Effective date for an insurance policy issued under section 1922(a) 
          of title 38 U.S.C. (Service-Disabled Veterans' Insurance).

                                Premiums

8.2 Payment of premiums.
8.3 Revival of insurance.
8.4 Deduction of insurance premiums from compensation, retirement pay, 
          or pension.
8.5 Authorization for deduction of premiums from compensation, 
          retirement pay, or pension.

                       Calculation of Time Period

8.6 Calculation of time period.

                              Reinstatement

8.7 Reinstatement of National Service Life Insurance except insurance 
          issued pursuant to section 1925 of title 38 U.S.C.
8.8 Health requirements.
8.9 Application and medical evidence.

                                Dividends

8.10 How paid.

                       Cash Value and Policy Loan

8.11 Cash value and policy loan.
8.12 Payment of the cash value of National Service Life Insurance in 
          monthly installments under section 1917(e) of title 38 U.S.C.
8.13 Policy loans.

                   Extended Term and Paid-Up Insurance

8.14 Provision for extended term insurance--other than 5-year level 
          premium term or limited convertible 5-year level premium term 
          policies.
8.15 Provision for paid-up insurance; other than 5-year level premium 
          term or limited convertible 5-year level premium term 
          policies.

                             Change in Plan

8.16 Conversion of a 5-year level premium term policy as provided for 
          under Sec. 1904 of title 38 U.S.C.

                  Premium Waivers and Total Disability

8.17 Discontinuance of premium waiver.
8.18 Total disability--speech.

                              Beneficiaries

8.19 Beneficiary and optional settlement changes.

                  Proof of Death, Age, or Relationship

8.20 Proof of death, age, relationship and marriage.

                                   Age

8.21 Misstatement of age.

                              Examinations

8.22 Examination of applicants for insurance or reinstatement.
8.23 Examination in connection with total disability benefits.
8.24 Expenses incident to examinations for insurance purposes.

                          Optional Settlements

8.25 Options.

                        Renewal of Term Insurance

8.26 Renewal of National Service Life Insurance on the 5-year level 
          premium term plan.

       Settlement of Insurance Maturing on or After August 1, 1946

8.27 Conditional designation of beneficiary.
8.28 Application for reinstatement of total disability income provision.

                 National Service Life Insurance Policy

8.29 Policy provisions.

                                 Appeals

8.30 Appeals to Board of Veterans Appeals.
8.31 Total disability for twenty years or more.
8.32 Authority of the guardian.
8.33 Cash value for term-capped policies.

    Authority: 38 U.S.C. 501, 1901-1929, 1981-1988, unless otherwise 
noted.

                              Applications



Sec. 8.0  Definitions of terms used in connection with title 38 CFR, 
part 8, National Service Life Insurance.

    (a) What does the term ``good health'' mean? The term good health 
means that the applicant is, from clinical or other evidence, free from 
any condition that would tend to:
    (1) Weaken normal physical or mental functions; or
    (2) Shorten life.

    Note to paragraph (a): Conditions that would affect ``good health'' 
are diseases or injuries or residuals of diseases or injuries. A 
``residual'' is a disability that remains following the original disease 
or injury.

    (b) What does the term ``good health criteria'' mean? The term good 
health criteria means the underwriting standards that determine whether 
a person is in good health. ``Good health criteria'' are based whenever 
possible, as

[[Page 476]]

far as practicable, on general insurance usage. ``Underwriting'' is the 
process that sets the terms, conditions, and prices for an insurance 
policy, by rating an applicant's mortality risk.
    (c) What does the term ``organic loss of speech'' mean? The term 
organic loss of speech means the loss of the ability to express oneself, 
both by voice and whisper, through the normal organs of speech if the 
loss is caused by physical changes in such organs. The fact that some 
speech can be produced through the use of artificial appliance or other 
organs of the body will not impact this definition.
    (d) What does the term ``disease or injury traceable to the extra 
hazards of the military service'' mean? The term disease or injury 
traceable to the extra hazards of the military service means a disease 
or injury that was either caused by or can be traced back to the 
performance of duty in the active military, naval, or air service.
    (e) What does the term ``guardian'' mean? The term guardian means 
any representative certified by the appropriate Veterans Service Center 
Manager, under Sec. 13.55 of this chapter, to receive benefits in a 
fiduciary capacity on behalf of the insured or the beneficiary, or to 
take the actions listed in Sec. 8.32.

[67 FR 54738, Aug. 26, 2002]

                             Effective Date



Sec. 8.1  Effective date for an insurance policy issued under 

section 1922(a) of title 38 U.S.C. (Service-Disabled Veterans' 
Insurance).

    (a) What is the effective date of the policy? The effective date is 
the date policy coverage begins. Benefits due under the policy are 
payable any time after the effective date.
    (b) How is the effective date established? The effective date is the 
date you deliver both of the following to VA:
    (1) A valid application.
    (2) A premium payment.

    Note 1 to paragraph (b): If your valid application and premium are 
mailed to VA, the postmark date will be the date of delivery.
    Note 2 to paragraph (b): If a postmark date is not available, the 
date of delivery will be the date your valid application and premium are 
received by VA.

    (c) Can you have a different effective date? Yes, if you would like 
an effective date other than the date of delivery as described in 
paragraph (b) of this section, you may choose one of the following three 
options as an effective date:
    (1) The first day of the month in which you deliver your valid 
application and premium payment to VA. For example, if VA receives your 
application and premium payment on August 15, you may request an 
effective date of August 1.
    (2) The first day of the month following the month in which you 
deliver your valid application and premium payment. For example, if VA 
receives your application and premium payment on August 15, you may 
request an effective date of September 1.
    (3) The first day of any month up to six months prior to the month 
in which you deliver your valid application and premium payment. For 
example, if VA receives your application and premium payment on August 
15, you may request an effective date of February 1 or the first day of 
any month following up to August 1. However, you must pay the following:
    (i) The insurance reserve amount for the time period for each month 
starting with the requested effective date up to the first day of the 
month prior to the month in which you delivered your application to VA; 
and
    (ii) The premium for the month in which you delivered your 
application to VA.

    Note to paragraph (c): For example, if your postmark date is August 
15 and you request an effective date of February 1, you must pay the 
insurance reserve amount for February 1 through July 31, and also pay 
the August premium.

[67 FR 54738, Aug. 26, 2002]

                                Premiums



Sec. 8.2  Payment of premiums.

    (a) What is a premium? A premium is a payment that a policyholder is 
required to make for an insurance policy.
    (b) How can policyholders pay premiums? Premiums can be paid by:

[[Page 477]]

    (1) Cash, check, or money order directly to VA.
    (2) Allotment from service or retirement pay.
    (3) Automatic deduction from VA benefits (pension, compensation or 
insurance dividends (see Sec. 8.4)).
    (4) Pre-authorized debit from a checking account.
    (c) When should policyholders pay premiums? (1) Unless premiums are 
paid in advance, policyholders must pay premiums on the effective date 
shown on the policy and on the same date of each following month. This 
is called the ``due date.''
    (2) Policyholders may pay premiums quarterly, semi-annually, or 
annually in advance.
    (d) What happens if a policyholder does not pay a premium on time? 
(1) When a policyholder pays a premium within 31 days from the ``due 
date,'' the policy remains in force. This 31-day period is called a 
``grace period.'' If the insured dies within the 31-day grace period, VA 
deducts the unpaid premium from the amount of insurance payable.
    (2) If a policyholder pays a premium after the 31-day grace period, 
VA will not accept the payment and the policy lapses effective the date 
the premium was due; Except that VA will accept a premium paid after the 
31-day grace period as a timely payment if:
    (i) The policyholder pays the premium within 61 days of the due 
date; and
    (ii) The policyholder is alive at the time the payment is mailed.
    (3) When a policyholder pays the premium by mail, the postmark date 
is the date of payment.
    (4) When a policyholder pays a premium by check or money order which 
is not honored and it is shown by satisfactory evidence that:

------------------------------------------------------------------------
The bank did not pay the check or money
           order because of:                          Then:
------------------------------------------------------------------------
An error by the bank...................  The policyholder has an
                                          additional 31 days (from the
                                          date stamped on VA's
                                          notification letter) to pay
                                          the premium and any other
                                          premiums due through the
                                          current month.
An error in the check or money order...  The policyholder has an
                                          additional 31 days (same as
                                          above).
Lack of funds..........................  The premium is considered not
                                          paid.
------------------------------------------------------------------------


[65 FR 7437, Feb. 15, 2000]



Sec. 8.3  Revival of insurance.

    (a) If the sole reason death or total disability benefits under a 
policy of National Service life insurance cannot be granted is that the 
policy had lapsed, the insurance will be considered in force under 
premium-paying conditions on the date of death or the date of 
commencement of total disability if,
    (1) On the date of lapse there were accrued dividends, not then 
payable, resulting from premiums paid since the last anniversary date of 
the policy and such dividends were equal to or greater in amount than 
the total of the monthly premiums which have become due from and 
including the date of lapse to the date of death or date of commencement 
of total disability, and/or
    (2) At the end of the grace period for the unpaid premium causing 
lapse there were due and payable to the policyholder unpaid dividends, 
refundable premiums, pure insurance risk credits, other refundable 
credits or total disability benefit payments arising from the 
policyholder's U.S. Government or National Service life insurance which 
are equal to or greater in amount than the total of the monthly premiums 
which have become due from and including the date of lapse to the date 
of death or date of commencement of total disability.
    (3) For purposes of this section amounts under paragraphs (a)(1) and 
(2) of this section may be combined. In that case, the amount, if any, 
of dividend accrued under paragraph (a)(1) of this section will first be 
determined and the amount available under paragraph (a)(2) of this 
section, if any, will be added thereto for the purpose of determining if 
the total amount thus available is equal to or greater than the total of 
monthly premiums which have become due.
    (4) In determining the amount of monthly premiums which have become

[[Page 478]]

due under paragraphs (a)(1) and (2) of this section a shortage of 10 
percent per monthly premium may be allowed for a period not to exceed 3 
months.
    (5) In determining the monthly premiums which have become due for 
adjustment purposes under paragraphs (a)(1) and (2) of this section, the 
premium for the monthly due date immediately preceding the date of death 
or date of commencement of total disability may be omitted because of 
the coverage provided by the allowable grace period (Sec. 8.2(d)) and 
if the conditions of paragraph (b) of this section are met, the premium 
for the second due date immediately preceding the date of death or date 
of commencement of total disability may be omitted.
    (6) When a policy is deemed in force under premium-paying conditions 
by operation of this section, the amount of any shortage included in the 
calculation and the premium for any monthly due date omitted in the 
calculation will become a lien against the policy.
    (7) The provisions of this section may be applied if, on the date of 
death, the insurance is in force under the extended term insurance 
provision (Sec. 8.14) and a policy loan was outstanding on the date of 
lapse or a dividend deposit balance was included in the cash value as 
determined at time of lapse.
    (8) If accrued dividends under paragraph (a)(1) of this section and/
or amounts due and payable under paragraph (a)(2) of this section exist 
in connection with more than one policy of the same veteran and one or 
more policies lapsed prior to the date of death or date of commencement 
of total disability, the amounts available will be related first to the 
policy or policies on which they arose if such policy or policies are 
lapsed. Any amount available under paragraphs (a)(1) and (2) of this 
section which is not required to place in force the policy upon which it 
arose or which is insufficient to place in force the policy upon which 
it arose, may be combined with similar amounts available on any other 
policy whenever the total of such amounts is sufficient to place another 
policy in force.
    (9) Where more than one policy is involved and credits are not 
needed or are insufficient to revive the policy on which the credits 
arose, the credits will be used insofar as they are sufficient to revive 
the policy or policies under which the most insurance is payable.
    (10) No total disability income provision will be considered in 
force under this section unless it lapsed at the same time as the life 
insurance contract and both the life insurance and total disability 
income provision can be considered in force through the same date and 
benefits are payable under the total disability income provision. An 
exception will be a paid-in-full limited pay contract on which total 
disability income provision premiums are due and payable to age 65.
    (11) When a total disability income provision lapsed at the same 
time as the life insurance, the premium for the provision will be 
considered separately in determining if the amounts available are equal 
to or in excess of the monthly premiums which have become due. In such a 
case if the amounts available are sufficient, both the life insurance 
and the provision will be revived. If the amounts are insufficient for 
that purpose, they will be applied to revive the policy or policies with 
the greatest amount payable in death cases or the policy or policies 
providing the greatest life insurance and total disability benefit in 
total disability cases.
    (12) Accrued dividends and/or credits on any policy of National 
Service or U.S. Government life insurance held by the policyholder may 
be considered for the purpose of this section.
    (b) If the sole reason death or total disability benefits under a 
policy of National Service life insurance cannot be granted is that the 
policy had lapsed, the insurance will be considered in force on the date 
of death or date of commencement of total disability if,
    (1) The policyholder died or became totally disabled within 61 days 
of the due date of the unpaid premiums, and
    (2) The policy prior to the lapse had been in force for 5 years or 
more. In determining in-force status under this subparagraph if the 
original effective date of the insurance (when necessary, include 
predecessor contracts involving renewal, conversion or replacement/
reinstatement under 38 U.S.C. 1981) is 5 years or more earlier than the 
date of death or date of total disability and

[[Page 479]]

during the 5 years immediately preceding the date of lapse the insurance 
has not been lapsed at any one time in excess of 6 months, the 
requirement will be satisfied. When insurance is considered in force 
under this section the amount of the monthly premium due on the date of 
lapse and the following monthly premium(s) will become a lien against 
the policy.
    (3) The provisions of this section may be applied if, on the date of 
death, the insurance is in force under the extended term insurance 
provision (Sec. 8.14) and a policy loan was outstanding on the date of 
lapse or a dividend deposit balance was included in the cash value as 
determined at time of lapse.

[33 FR 17915, Dec. 3, 1968. Redesignated and amended at 61 FR 29290, 
29291, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000; 65 FR 
19658, Apr. 12, 2000]



Sec. 8.4  Deduction of insurance premiums from compensation, retirement 
pay, or pension.

    The insured under a National Service life insurance policy which is 
not lapsed may authorize the monthly deduction of premiums from 
disability compensation, death compensation, dependency and indemnity 
compensation, retirement pay, disability pension, or death pension that 
may be due and payable to him under any laws administered by the 
Department of Veterans Affairs in accordance with the following 
provisions.
    (a) The authorization may be made by an insured or the insured's 
legal representative. If the authorization is made by the insured's 
legal representative, it must be in writing over the signature of the 
representative and forwarded to the Department of Veterans Affairs along 
with a copy of the document which evidences the individual's authority 
to act on behalf of the insured. If an insured is incompetent and has no 
legal representative and has a spouse to whom benefits are being paid 
pursuant to Part 13 of this chapter, the spouse may authorize payment of 
insurance premiums through the deduction system. If an insured is 
incompetent and has no legal representative and an institutional award 
has been made in his or her behalf, the authorization may be executed by 
the Director of the field facility in which the insured is hospitalized 
or receiving domiciliary care, and in appropriate cases by the chief 
officers of State hospitals or other institutions to whom similar awards 
may have been approved.
    (b) The monthly disability compensation, death compensation, 
dependency and indemnity compensation, retirement pay, disability 
pension, or death pension so due and payable must be equal to, or in 
excess of, the amount of the insurance premium figured on a monthly 
basis.
    (c) The authorization may be cancelled by the insured at any time. 
Such cancellation will be effective on the first day of the month 
following the month in which it is received by the Department of 
Veterans Affairs.
    (d) If the benefits payable to the insured are apportioned under the 
regulations of the Department of Veterans Affairs now in effect or 
hereafter issued, the deduction authorized by the insured shall be from 
that portion awarded to the insured under such regulations.
    (e) The deduction authorized by a policyholder issued insurance 
under 38 U.S.C. 1925 will be automatically adjusted by the Department of 
Veterans Affairs to take cognizance of any premium adjustment made by 
the Secretary on such insurance provided the benefit payments due and 
payable to the insured are of an amount sufficient to pay the monthly 
insurance premium.

(Authority: 38 U.S.C. 1908)

[13 FR 7110, Nov. 27, 1948, as amended at 14 FR 5241, Aug. 24, 1949; 24 
FR 7327, Sept. 9, 1959; 28 FR 1542, Feb. 19, 1963; 30 FR 3645, Mar. 19, 
1965; 54 FR 46231, Nov. 2, 1989. Redesignated and amended at 61 FR 
29290, 29291, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.5  Authorization for deduction of premiums from compensation, 
retirement pay, or pension.

    Deductions from benefits for the payment of premiums shall be 
effective on the month the authorization for such deduction is received 
by the Department of Veterans Affairs or on any successive month 
specified by the insured. Such deduction shall be applied to the

[[Page 480]]

premium due in the succeeding calendar month and shall continue monthly 
so long as the benefit payments are due and payable to the insured and 
the amount is sufficient to pay the premium or until such authorization 
is revoked by the veteran or otherwise terminated. When premium 
deductions are authorized by the insured, the premium will be treated as 
paid for purposes of preventing lapse of the insurance, so long as there 
is due and payable to the insured a benefit amount sufficient to provide 
the premium payment. If authorization was executed by the Director of a 
VA hospital or domiciliary or chief officer of a State hospital or other 
institution to make deductions from an institutional award, the 
authorization will cease and terminate at the termination of the 
institutional award and the insurance shall lapse unless another 
authorization for deduction from monthly benefit payments is executed by 
the insured. The insured will be notified by letter directed to the last 
address of record of the termination of the authorization to deduct 
premiums, but failure to give such notice shall not prevent lapse.

[61 FR 29291, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]

                       Calculation of Time Period



Sec. 8.6  Calculation of time period.

    If the last day of a time period specified in Sec. Sec. 8.2 or 8.3 
or allowed for filing an application for National Service life insurance 
or for applying for reinstatement thereof, or paying premiums due 
thereon, falls on a Saturday, Sunday, or legal holiday, the time period 
will be extended to include the following workday.

[33 FR 17916, Dec. 3, 1968. Redesignated and amended at 61 FR 29290, 
29291, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000; 65 FR 
19659, Apr. 12, 2000]

                              Reinstatement



Sec. 8.7  Reinstatement of National Service Life Insurance except 
insurance issued pursuant to section 1925 of title 38 U.S.C.

    (a) Any policy which lapses and which is not surrendered for a cash 
value or for paid-up insurance, may be reinstated upon written 
application signed by the applicant, payment of all premiums in arrears, 
and evidence of good health as required under Sec. 8.8 (a) or (b), 
whichever is applicable. If a policy is not reinstated within 6 months 
from the due date of the premium in default, interest must be paid in 
addition to premiums for all months in arrears from their respective due 
dates at the rate of 5 percent per annum, compounded annually. The 
payment or reinstatement of any indebtedness against a policy must be 
made upon application for reinstatement, and any excess of indebtedness 
and interest over the reserve of the policy must be paid at that time. A 
lapsed National Service Life Insurance policy which is in force under 
extended term insurance may be reinstated within 5 years from the date 
extended insurance would expire upon application and payment of all 
premiums in arrears with the required interest. In any case in which the 
extended insurance under an endowment policy provides protection to the 
end of the endowment period, the policy may be reinstated at any time 
before maturity upon application and payment of the premiums with the 
required interest. A policy on the level term premium plan may be 
reinstated within 5 years of the date of lapse upon written application 
signed by the insured, evidence of insurability and payment of two 
monthly premiums, one for the month of the lapse, the other for the 
month of reinstatement.
    (b) Reinstatement of insurance issued under section 1925, title 38 
U.S.C. Any policy of insurance issued under 38 U.S.C. 1925 which has 
been lapsed for not more than 5 years shall be reinstated under the same 
provisions of paragraph (a) of this section.
    (c) Effective date of reinstatements. Reinstatement is effected on 
the date an acceptable application and the required monetary payments 
are delivered to the Department of Veterans Affairs. If application for 
reinstatement is submitted by mail, properly addressed to the Department 
of Veterans Affairs, the postmark date shall be the date of delivery. 
The effective date of reinstatement of the insurance shall be the last 
monthly premium due date prior

[[Page 481]]

to the delivery or postmark date of the application for reinstatement, 
except where reinstatement is effected on the due date of a premium, 
then in such case that date shall be the reinstatement date.
    (d) Inquiry during the grace period. When the insured makes inquiry 
prior to the expiration of the grace period disclosing a clear intent to 
continue insurance protection, such as a request for information 
concerning premium rates or conversion privileges, etc., an additional 
reasonable period not exceeding 60 days may be granted for payment of 
premiums due; but the premiums in any such case must be paid during the 
lifetime of the insured.

[61 FR 29291, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000; 
65 FR 19659, Apr. 12, 2000]



Sec. 8.8  Health requirements.

    National Service life insurance on any plan may be reinstated if 
application and tender of premiums are made:
    (a) Within 6 premium months including the premium month for which 
the unpaid premium was due, provided the applicant be in as good health 
on the date of application and tender of premiums as he or she was on 
the last day of the grace period of the premium in default and furnishes 
satisfactory evidence thereof.
    (b) After expiration of the 6-month period mentioned in paragraph 
(a) of this section, provided applicant is in good health (Sec. 8.0) on 
the date of application and tender of premiums and furnishes 
satisfactory evidence. If the insurance to be reinstated was issued 
under 38 U.S.C. 1922(a), 1925(b), or 1925(c) and application is made 
within 1 year of the date of lapse, any service-connected disability 
existing at the time the insurance was issued will be waived for the 
purpose of reinstatement (including natural progression of the condition 
since time of issuance). If the insurance to be reinstated was issued 
under 38 U.S.C. 1925(a) and application is made within 1 year of the 
date of lapse, any nonservice-connected disability, or service-connected 
disability which combined with a non-service-connected disability 
rendered the insured uninsurable as of October 13, 1964, will be waived 
for the purpose of reinstatement (including natural progression).

[33 FR 365, Jan. 10, 1968, as amended at 33 FR 12002, Aug. 23, 1968; 47 
FR 11657, Mar. 18, 1982. Redesignated and amended at 61 FR 29290, 29292, 
June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.9  Application and medical evidence.

    The applicant for reinstatement of National Service Life Insurance, 
during his or her lifetime, and within 5 years after the date of lapse 
if the insurance was issued under 38 U.S.C. 1925, must submit a written 
application signed by him or her and furnish satisfactory evidence of 
health as required in Sec. 8.8 at the time of application. Applicant's 
own statement of comparative health may be accepted as proof of 
insurability for the purpose of reinstatement under Sec. 8.8(a), but, 
whenever deemed necessary in any such case, report of physical 
examination may be required. Applications for reinstatement submitted 
after expiration of the applicable period mentioned in Sec. 8.8(a) must 
be accompanied by satisfactory evidence of good health. If the insurance 
becomes a claim after the tender of the amount necessary to meet 
reinstatement requirements but before full compliance with the 
requirements of this section, and the applicant was in a required state 
of health at the date that he or she made the tender of the amount 
necessary to meet reinstatement requirements, and that there is 
satisfactory reason for his or her noncompliance, the Assistant Director 
for Insurance, VA Center, Philadelphia, Pennsylvania may, if the 
applicant be dead, waive any or all requirements of this section (except 
payment of the necessary premiums) or, if the applicant be living, allow 
compliance with this section as of the date the required amount 
necessary to reinstate was received by the Department of Veterans 
Affairs.

(Authority: 38 U.S.C. 1925)

[47 FR 11657, Mar. 18, 1982. Redesignated and amended at 61 FR 29290, 
29292, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000; 65 FR 
19659, Apr. 12, 2000]

[[Page 482]]

                                Dividends



Sec. 8.10  How paid.

    (a) Except as hereinafter provided in this paragraph, a National 
Service Life Insurance policy shall participate in and receive such 
dividends from gains and savings as may be determined by the Secretary 
of Veterans Affairs. Dividends becoming payable after January 1, 1952, 
shall be payable on the date preceding the anniversary of the policy 
unless the Secretary shall declare them payable on some other date. 
Dividends are not payable on insurance:
    (1) Issued or reinstated under the provisions of section 602(c)(2) 
of the National Service Life Insurance Act, as amended, where the 
requirements of good health were waived at the time of such issue or 
reinstatement;
    (2) Issued under sections 620 and 621 of the National Service Life 
Insurance Act, as amended;
    (3) Issued under sections 1904(c) and 1922(a) of title 38 U.S.C.;


(Authority: 38 U.S.C. 1923(b) and 725)

    (4) Issued on the ordinary life plan under section 1904(d) of title 
38 U.S.C., to replace the amount of insurance reduced under a modified 
life plan policy issued under 38 U.S.C. 1904(c); and
    (5) On which premiums are waived, in whole or in part, under the 
provisions of section 622 of the National Service Life Insurance Act, as 
amended, and 38 U.S.C. 1924 for the period during which such premium 
waiver is in effect.
    (b) Unless and until VA receives a written request from the insured 
that National Service Life Insurance dividends be paid in cash, or that 
they be used to pay an insurance indebtedness, or that they be placed on 
deposit or be used to pay premiums in advance, or that they be used to 
pay the premiums on a particular policy or policies, or that they be 
used to purchase paid-up additions, any such dividends shall be held to 
the credit of the insured to be applied to pay monthly premiums becoming 
due and unpaid after the date such dividends are payable on any National 
Service or United States Government Life Insurance policy or policies 
held by the insured: Provided, That such dividend credits will be 
applied as of the due date of any unpaid premium. Dividend credits will 
earn interest at such rate and in such manner as the Secretary may 
determine.


(Authority: 38 U.S.C. 1907(a))

    (c) In the event premiums on more than one policy having the same 
premium due date are unpaid and the dividend credit of the insured for 
application to payment of premiums is not sufficient to keep all 
policies in force, in the absence of instructions to the contrary by the 
insured, such dividend credit will be applied to pay premiums in such 
manner as will provide the maximum amount of insurance protection.
    (d) At the expiration of any term period, dividend credit of the 
insured held for payment of premiums will be applied to pay the required 
premium for renewal of term insurance unless the insured requests 
otherwise in writing prior to the expiration of the term period.
    (e) A request for payment of dividends in cash or for other 
disposition will be effective as of the date the request is delivered to 
the Department of Veterans Affairs: If forwarded by mail, properly 
addressed, the postmark date will be taken as the date of delivery: If 
forwarded through military channels by the insured while in military 
service, the date the request is placed in military channels will be 
accepted as the date of delivery. Unless otherwise stipulated by the 
insured, such request will remain in force until revoked in writing 
signed by the insured and delivered to the Department of Veterans 
Affairs.
    (f) Dividend credit of the insured held for payment of premiums may 
not be used to satisfy any indebtedness due the United States without 
the insured's consent. If the insured requests payment of such dividend 
credit, or any unused portion thereof, in cash, or requests that such 
credit be left to accumulate on deposit, as provided in paragraph (g) of 
this section, then any indebtedness due the United States, such as 
described in Sec. 5301 of title 38 U.S.C. will be recovered therefrom.
    (g) At the written request of the insured, National Service life 
insurance dividends may be left to accumulate on

[[Page 483]]

deposit at interest which will be credited in such manner and at such 
rate as the Secretary may determine: Provided, That the policy is in 
force on a basis other than extended term insurance or level premium 
term insurance. Dividend credit of the insured held for payment of 
premiums or dividends left to accumulate on deposit as provided in this 
paragraph may be applied to the payment of premiums in advance upon 
written request of the insured made before default in payment of a 
premium. Dividends on deposit under the provisions of this paragraph 
will be used in addition to the reserve on the policy for the purpose of 
computing the period of extended term insurance or the amount of paid-up 
insurance as provided in Sec. Sec. 8.14 and 8.15, respectively. Any 
dividend credit of a person who no longer has insurance in force by 
payment or waiver of premiums will be paid in cash to such person. If a 
person has a dividend credit option on a lapsed level premium term 
policy or a permanent plan policy on which extended term insurance has 
expired and such person has another policy in force by payment or waiver 
of premiums, any dividend credit or unpaid dividends on the lapsed 
policy, in the absence of instructions from the insured to the contrary, 
will be transferred to the policy which is in force and will be held on 
such policy as a dividend credit. Such dividend credit will be deemed to 
have accrued on the policy which is in force. Upon maturity of the 
policy, any dividend on deposit, any unpaid dividend payable in cash, 
and any dividend credit accruing from such policy which cannot be used 
to pay premiums will be paid to the person currently entitled to receive 
payments under the policy. If the policy is not in force at death, any 
such unpaid dividends and dividend credits will be paid to the insured's 
estate.
    (h) Any insured receiving an annual dividend in cash may return such 
dividend check or an equivalent amount of money in order to have the 
dividend retained under the deposit or credit option. The return of such 
dividend must be made during the lifetime of the insured and before the 
end of the calendar year during which the dividend was paid. Dividends 
returned under this provision are not available for the payment of 
premiums, receipt of interest, or calculation of cash value prior to the 
postmark date of the returned check.

[17 FR 2362, Mar. 19, 1952, as amended at 18 FR 3715, June 30, 1953; 24 
FR 5021, June 20, 1959; 25 FR 7369, Aug. 5, 1960; 28 FR 12545, Nov. 23, 
1963; 30 FR 3646, Mar. 19, 1965; 32 FR 13927, Oct. 6, 1967; 37 FR 3352, 
Feb. 15, 1972; 46 FR 57043, Nov. 20, 1981; 50 FR 12252, Mar. 28, 1985. 
Redesignated and amended at 61 FR 29290, 29292, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000; 65 FR 19659, Apr. 12, 2000]

                       Cash Value and Policy Loan



Sec. 8.11  Cash value and policy loan.

    (a) Provisions for cash value, paid-up insurance, and extended term 
insurance, except as provided in Sec. 8.14(b), shall become effective 
at the completion of the first policy year on any plan of National 
Service Life Insurance other than the 5-year level premium term plan. 
The cash value at the end of the first policy year and at the end of any 
policy year thereafter, for which premiums have been paid in full, shall 
be the reserve with any dividend accumulations, where applicable.
    (b) Upon written request and upon complete surrender of the 
insurance and all claims thereunder, the United States will pay to the 
insured the cash value of the policy less any indebtedness, provided the 
policy has been in force by payment or waiver of the premiums for at 
least 1 year. Paid-up additions do not have to be in force for 1 year 
before they have cash values. Unless otherwise requested by the insured, 
a surrender will be deemed completed as of the end of the premium month 
in which the application for cash surrender is delivered to the 
Department of Veterans Affairs, or as of the date of the check for the 
cash value, whichever is later. If the application is forwarded by mail, 
properly addressed, the postmark date will be taken as the date of 
delivery. If it is forwarded through military channels, the date the 
application is placed in military channels will be taken as the date of 
delivery.
    (c) All values, reserves and net single premiums on participating 
National Service Life Insurance, other than as

[[Page 484]]

provided in paragraph (e) of this section, shall be based on the 
American Experience Table of Mortality, with interest at the rate of 3 
percent per annum. For each month after the first policy year for which 
month a premium has been paid or waived, the reserve at the end of the 
preceding policy year shall be increased by one-twelfth of the increase 
in reserve for the current policy year.


(Authority: 38 U.S.C. 1902, 1906)

    (d) All values on insurance, reserves, and net single premiums 
issued under the provisions of section 1922(a) of title 38 U.S.C., and 
on modified life and ordinary life plans of insurance issued under 
section 1904(c), (d), and (e), respectively, shall be based on the 
Commissioners 1941 Standard Ordinary Table of Mortality with interest at 
the rate of 2\1/4\ percent per annum. Values between policy years shall 
be proportionally adjusted.


(Authority: 38 U.S.C. 1904, 1906)

    (e) All values on insurance, reserves, and net single premiums 
issued under the provisions of section 1923(b) of title 38 U.S.C., and 
on modified life and ordinary life plans of such insurance issued under 
section 1904 (c), (d), and (e), respectively, shall be based on table X-
18 (1950-54 Intercompany Table of Mortality) with interest at the rate 
of 2\1/2\ percent per annum. Values between policy years shall be 
proportionally adjusted.


(Authority: 38 U.S.C. 1904, 1923)

    (f) All values, reserves, and net single premiums on 
nonparticipating insurance on which the requirements of good health were 
waived under the provisions of section 602(c)(2) of the National Service 
Life Insurance Act, as amended (``H'' Insurance), and on the modified 
life and ordinary life plans of such ``H'' insurance issued under 
section 1904 (c), (d), and (e), respectively, of title 38 U.S.C. shall 
be based on the American Experience Table of Mortality, with interest at 
the rate of 3 percent per annum. Values between policy years shall be 
proportionally adjusted. The provisions of the ``Net Cash Value'' clause 
in National Service Life Insurance policies are hereby amended 
accordingly.
    (g) All values, reserves, and net single premiums on participating 
modified life and ordinary life plan insurance issued under section 1904 
(b), (d), and (e), respectively, of title 38 U.S.C. shall be based on 
the 1958 Commissioners Standard Ordinary Basic Table of Mortality and 
interest at the rate of 3 percent per annum. Values between policy years 
shall be proportionally adjusted.
    (h) All values, reserves, and net single premiums on insurance 
issued under the provisions of section 1925(b) of title 38 U.S.C, and on 
modified life and ordinary life plans of such insurance issued under 
section 1904 (c), (d), and (e), respectively, shall be based on the 1958 
Commissioners Standard Ordinary Basic Mortality Table and interest at 
the rate of 3\1/2\ percent per annum. Values between policy years shall 
be proportionally adjusted.
    (i) All values, reserves, and net single premiums on insurance 
issued under the provisions of section 1925(c) of title 38 U.S.C., and 
on modified life, ordinary life, 20-payment life and 30-payment life 
plans, where appropriate, of such insurance issued under section 1904 
(c), (d), and (e), respectively, shall be based on the American 
Experience Table of Mortality and interest at the rate of 3\1/2\ percent 
per annum. Values between policy years shall be proportionally adjusted.

(Authority: 38 U.S.C. 1906)

[61 FR 29292, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000; 
65 FR 19659, Apr. 12, 2000]



Sec. 8.12  Payment of the cash value of National Service Life Insurance 
in monthly installments under section 1917(e) of title 38 U.S.C.

    (a) Effective January 1, 1971, in lieu of payment of the cash 
surrender value in one sum the insured may elect to receive payment in 
monthly installments under option 2 or as a refund life income. If the 
insured dies before the agreed number of monthly installments have been 
paid, the remaining unpaid monthly installments will be payable as 
provided in title 38 U.S.C. 1917. Unless otherwise requested by the 
insured, a surrender under this section

[[Page 485]]

will be deemed completed as of the premium month in which the 
application for cash surrender is delivered to the Department of 
Veterans Affairs, or as of the date of the first check released 
thereunder, whichever is later.
    (b) [Reserved]

[36 FR 4384, Mar. 5, 1971. Redesignated and amended at 61 FR 29290, 
29292, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.13  Policy loans.

    (a) At any time after the premiums for the first policy year have 
been paid and earned and before default in payment of any subsequent 
premium, and upon the execution of a loan agreement satisfactory to the 
Secretary, the United States will lend to the insured on the security of 
his or her National Service Life Insurance policy, any amount which will 
not exceed 94 percent of the reserve, and any indebtedness on the policy 
shall be deducted from the amount advanced on such loan. At any time 
before default in the payment of the premium, the loan may be repaid in 
full or in amounts of $5 or more. Failure to pay either the amount of 
the loan or the interest thereon shall not make the policy voidable 
unless the total indebtedness shall equal or exceed the cash value. When 
the amount of the indebtedness equals or exceeds the cash value, the 
policy shall become voidable. On loans applied for before the effective 
date of this regulation (November 2, 1987) and not exchanged pursuant to 
paragraph (b) of this section, the policy loan interest rate in effect 
when the loan was applied for shall not be increased for the term of the 
loan.
    (b) Loans applied for or exchanged on and after the effective date 
of this regulation (November 2, 1987) shall bear interest at a rate 
which may be varied during the term of the loan, not more frequently 
than once a year, as provided by paragraphs (c) and (d) of this section. 
After October 1, 1988, the policy loan rate shall not be varied more 
frequently than once a year. Notification of the initial rate of 
interest on new loans will be forwarded at the time the loan is made. 
Policyholders with existing variable rate loans will be forwarded 
reasonable advance notice of any increase in the rate. Reasonable 
advance notice of any change in the variable loan rate will be published 
in the Federal Register. A notice pertaining to variable loans which is 
sent to the policyholder's last address of record will constitute 
sufficient evidence of notice.
    (c) Subject to the provisions of paragraph (d) of this section, loan 
rates established pursuant to paragraph (b) of this section shall equal 
the yield on the Ten-Year Constant Maturities Index for U.S. Treasury 
Securities for the month of June of the year of calculation rounded down 
to the next whole percentage. Such loan rate shall be effective on the 
date on or after the first day of October on which the rate change is 
made in the insurance automatic data processing system, and shall remain 
in effect for not less than one year after the date of establishment. 
The prevailing variable loan rate shall apply to all loans granted under 
paragraph (b) of this section.
    (d) Notwithstanding any other provisions of this section, the 
variable loan rate shall not exceed 12 percent or be lower than 5 
percent per annum.

(Authority: 38 U.S.C. 1906)

[52 FR 39626, Oct. 2, 1987, as amended at 53 FR 17466, May 17, 1988; 59 
FR 65717, Dec. 21, 1994. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000]

                   Extended Term and Paid-Up Insurance



Sec. 8.14  Provision for extended term insurance--other than 5-year 

level premium term or limited convertible 5-year level premium term 
policies.

    (a) After the expiration of the first policy year and upon default 
in the payment of a premium within the grace period, if a permanent plan 
National Service Life Insurance policy other than the modified life plan 
has not been surrendered for cash or for paid-up insurance, the policy 
shall be extended automatically as term insurance. The extended term 
insurance shall be for an amount of the insurance equal to the face 
value of the policy less any indebtedness for such time from the due 
date of the premium in

[[Page 486]]

default as the cash value less any indebtedness and a charge for 
administrative cost for insurance issued under 38 U.S.C. 1925, will 
purchase when applied as a net single premium at the attained age of the 
insured. For this purpose the attained age is the age on the birthday 
anniversary nearest to the effective date of the policy plus the number 
of years and months from that date to the date the extended term 
insurance becomes effective. The extended term insurance shall not have 
a loan value, but shall have a cash value.
    (b) Upon default in payment of a premium within the grace period on 
any permanent plan of National Service Life Insurance other than the 
modified life plan and any plan of insurance issued under 38 U.S.C. 
1925, if the policy has been in force by payment or waiver of premiums 
for not less than 3 months nor more than 11 months, the policy shall be 
extended automatically as term insurance. The extended term insurance 
shall be for an amount of insurance equal to the face value of the 
policy less any indebtedness for such time from the due date of the 
premium in default as the reserve of the policy less any indebtedness 
will purchase when applied as a net single premium at the attained age 
of the insured. For this purpose the attained age is the age on the 
birthday anniversary nearest to the effective date of the policy plus 
the number of months from that date to the date extended term insurance 
becomes effective. Extended term insurance under this provision shall 
not have a cash or loan value. This paragraph shall be effective from 
and after August 2, 1948.
    (c) Upon default in payment of a premium within the grace period, if 
a modified life plan of National Service Life Insurance has not been 
surrendered for cash or paid-up insurance and if the policy has been in 
force by payment or waiver of premiums for not less than 3 months, or 
for not less than 1 year for insurance issued under 38 U.S.C. 1925, the 
policy shall be extended automatically as of insurance equal to (1) the 
Initial Face Amount of Insurance (face amount of policy in force prior 
to insured's 65th birthday) less any indebtedness, for lapses which 
occur prior to the insured's 65th birthday, or (2) the Ultimate Face 
Amount of Insurance (face amount of policy in force on or after 
insured's 65th birthday) less any indebtedness, for lapses which occur 
on or after the insured's 65th birthday. The extended term insurance 
shall be for an amount of insurance equal to:
    (i) The initial face amount of insurance (face amount of policy in 
force prior to the insured's 65th or 70th birthday, depending on the 
plan of insurance), less any indebtedness, for lapses which occur prior 
to the insured's 65th or 70th birthday, depending on the plan of 
insurance, or
    (ii) The ultimate face amount of insurance (face amount of policy in 
force on or after insured's 65th or 70th birthday, depending on the plan 
of insurance) less any indebtedness, for lapses which occur on or after 
the insured's 65th or 70th birthday, depending on the plan of insurance. 
If a modified life plan policy is on extended term insurance at the end 
of the day preceding the insured's 65th or 70th birthday, depending on 
the plan of insurance, the amount of extended term insurance in effect 
under such policy shall be automatically reduced by one-half thereof. If 
the policy lapsed prior to the end of the first policy year, the 
extended term insurance shall not have a cash or loan value. If the 
policy lapsed after the first policy year, the extended term insurance 
shall not have a loan value, but shall have a cash value.

(Authority: 38 U.S.C. 1906)

[30 FR 3647, Mar. 19, 1965, as amended at 47 FR 11658, Mar. 18, 1982. 
Redesignated at 61 FR 29290, June 10, 1996. Redesignated at 65 FR 7437, 
Feb. 15, 2000]



Sec. 8.15  Provision for paid-up insurance; other than 5-year level 
premium term or limited convertible 5-year level premium term policies.

    If a National Service Life Insurance policy on any plan other than 
5-year level premium term or limited convertible 5-year level premium 
term plan has not been surrendered for cash, upon written request of the 
insured and complete surrender of the insurance with all claims 
thereunder, after the expiration of the first policy year and while the 
policy is in force under premium-paying conditions, the United States

[[Page 487]]

will issue paid-up insurance for such amount as the cash value less any 
indebtedness, and a charge for administrative cost for insurance issued 
under 38 U.S.C. 1925, will purchase when applied as a net single premium 
at the attained age of the insured. For this purpose the attained age is 
the age on the birthday anniversary nearest to the effective date of the 
policy plus the number of years and months from that date to the date 
the paid-up insurance becomes effective. Such paid-up insurance will be 
effective as of the expiration of the period for which premiums have 
been paid and earned; and, any premiums paid in advance for months 
subsequent to that in which the application for paid-up insurance is 
made shall be refunded to the insured. The paid-up insurance, if 
eligible to participate in and to receive dividends, shall be with the 
right to dividends. The insured may at any time surrender the paid-up 
policy for its cash value or obtain a loan on such paid-up insurance.

[30 FR 3648, Mar. 19, 1965. Redesignated and amended at 61 FR 29290, 
29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]

                             Change in Plan



Sec. 8.16  Conversion of a 5-year level premium term policy as provided 
for under Sec. 1904 of title 38 U.S.C.

    National Service Life Insurance on the level premium term plan which 
is in force may be exchanged for a permanent plan policy upon written 
application by the insured and the payment of the current monthly 
premium at the attained age for the plan of insurance selected (except 
where premium waiver under 38 U.S.C. 1912 is effective). The reserve (if 
any) on the policy will be allowed as a credit on the current monthly 
premium except where premium waiver is effective. Conversion to an 
endowment plan may not be made while the insured is totally disabled. 
The conversion will be made without medical examination, except when 
deemed necessary to determine whether an applicant for conversion to an 
endowment plan is totally disabled, and upon complete surrender of the 
term insurance while in force by payment or waiver of premium.

(Authority: 38 U.S.C. 1904)

[61 FR 29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]

                  Premium Waivers and Total Disability



Sec. 8.17  Discontinuance of premium waiver.

    (a) The Secretary may require proof of continuance of total 
disability at any time the Secretary may deem same necessary. In the 
event it is found that an insured is no longer totally disabled, the 
waiver of premiums shall cease as of the date of such finding, and the 
insurance may be continued by payment of premiums, the due date of the 
first premium payable being the next regular monthly due date of the 
premium under the policy. The insurance shall not lapse prior to the 
date of expiration of the grace period allowed for the payment of such 
premium or prior to the expiration of 31 days after date of notice to 
the insured of the termination of the premium waiver, whichever is the 
later date. Such notice shall be sent by registered mail or by certified 
mail and sufficient notice will be deemed to have been given when such 
letter has been placed in the mails by the Department of Veterans 
Affairs: Provided, That the Secretary may grant an additional period of 
not more than 31 days for payment of the premiums in any case in which 
it is shown that the failure to make payment within 31 days after notice 
as defined in this paragraph was due to circumstances beyond the 
insured's control; but the premiums in any such case must be paid during 
the lifetime of the insured. The failure of the insured to furnish a 
correct current address at which mail will reach him or her promptly 
shall not be grounds for a further extension of time for payment of 
premiums under this section.
    (b) In the event a finding that insured is no longer totally 
disabled is made at the same time a finding is made of total disability 
entitling the insured to a waiver of premiums while so disabled, the 
waiver of premiums shall cease as of the date on which total disability 
ceased and continuance

[[Page 488]]

of the insurance in such cases shall be subject to the timely payment of 
the premiums as they become or have become due and payable. The due date 
of the first premium payable subsequent to the date total disability 
ceased is the next regular due date of the premium under the policy, and 
if such premium was not paid within 31 days after the due date, the 
insurance lapsed.
    (c) If the insured shall fail to cooperate with the Secretary in 
securing any evidence he may require to determine whether total 
disability has continued, the premium waiver shall cease effective as of 
the date finding is made of such failure to cooperate, and the insurance 
may be continued by payment of the premiums within 31 days after notice 
of termination as provided in paragraph (a) of this section.

[13 FR 7114, Nov. 27, 1948, as amended at 25 FR 8776, Sept. 13, 1960; 47 
FR 11658, Mar. 18, 1982. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.18  Total disability--speech.

    The organic loss of speech shall be deemed to be total disability 
under National Service Life Insurance.

[67 FR 54738, Aug. 26, 2002]

                              Beneficiaries



Sec. 8.19  Beneficiary and optional settlement changes.

    The insured shall have the right at any time, and from time to time, 
and without the knowledge or consent of the beneficiary to cancel or 
change a beneficiary and/or optional settlement designation. A change of 
beneficiary or optional settlement to be effective must be made by 
notice in writing signed by the insured and forwarded to the Department 
of Veterans Affairs by the insured or designated agent, and must contain 
sufficient information to identify the insured. A beneficiary 
designation and an optional settlement selection, but not a change of 
beneficiary, may be made by last will and testament duly probated. Upon 
receipt by the Department of Veterans Affairs, a valid designation or 
change of beneficiary or option shall be deemed to be effective as of 
the date of execution. Any payment made before proper notice of 
designation or change of beneficiary has been received in the Department 
of Veterans Affairs shall be deemed to have been properly made and to 
satisfy fully the obligations of the United States under such insurance 
policy to the extent of such payments.

[61 FR 29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]

                  Proof of Death, Age, or Relationship



Sec. 8.20  Proof of death, age, relationship and marriage.

    Whenever it is necessary for a claimant to prove death, age, 
relationship or marriage, the provisions found in Part 3 of this chapter 
will be followed.

[26 FR 1856, Mar. 3, 1961. Redesignated and amended at 61 FR 29290, 
29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000]

                                   Age



Sec. 8.21  Misstatement of age.

    If the age of the insured under a National Service life insurance 
policy has been understated, the amount of the insurance payable under 
the policy shall be such exact amount as the premium paid would have 
purchased at the correct age; if overstated, the excess of premiums paid 
shall be refunded without interest. Guaranteed surrender and loan values 
will be modified accordingly. The age of the insured will be admitted by 
the Department of Veterans Affairs at any time upon satisfactory proof.

[13 FR 7115, Nov. 27, 1948. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000]

                              Examinations



Sec. 8.22  Examination of applicants for insurance or reinstatement.

    Where physical or mental examination is required of an applicant for 
National Service Life Insurance or of an applicant for reinstatement of 
National Service Life Insurance, such examination may be made by a 
medical officer of the United States Army, Navy, Air Force, or Public 
Health Service, or may be made free of charge to him or her by a full-
time or part-time salaried physician or a physician's assistant at a 
regional office or medical facility of

[[Page 489]]

the Department of Veterans Affairs. Such examination may also be made, 
at the applicant's own expense, by a physician duly licensed for the 
practice of medicine by a State, possession of the United States, 
Commonwealth of Puerto Rico, or the District of Columbia, or by a duly 
licensed osteopathic physician who is a graduate of a recognized and 
approved college of osteopathy and who is listed in the current 
directory of the American Osteopathic Association. Such examination may 
be made by a physician or osteopath who is not related to the applicant 
by blood or marriage, associated with him or her in business, or 
pecuniarily interested in the insurance or reinstatement of the policy. 
Examinations made in a foreign country by a physician duly licensed for 
the practice of medicine and otherwise acceptable may be accepted if 
submitted through the American consul. The Secretary of Veterans Affairs 
may require such further medical examination or additional medical 
evidence as may be deemed necessary and proper to establish the physical 
and mental condition of the applicant at the time of the application.

(Authority: 38 U.S.C. 1904 and 1905)

[30 FR 3650, Mar. 19, 1965, as amended at 47 FR 11659, Mar. 18, 1982. 
Redesignated and amended at 61 FR 29290, 29293, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.23  Examination in connection with total disability benefits.

    Physical examination in connection with claim for total disability 
benefits may be made by a medical officer of the United States Army, 
Navy, Air Force, or Public Health Service, or may be made at Government 
expense by a full-time or part-time salaried physician or physician's 
assistant at a regional office or medical facility of the Department of 
Veterans Affairs. If an insured is unable to travel, because of physical 
or mental condition, the Director of a regional office or of a medical 
facility may, on his or her own initiative or at the request of the 
Insurance activity concerned, authorize at Government expense 
examination at the residence of the insured. The Secretary of Veterans 
Affairs may require such further medical examination or such additional 
medical evidence as may be deemed necessary and proper to establish the 
physical and mental condition of the insured.

(Authority: 38 U.S.C. 1912(b))

[47 FR 11659, Mar. 18, 1982. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000]



Sec. 8.24  Expenses incident to examinations for insurance purposes.

    Except as provided in Sec. 8.22, necessary transportation expenses 
incident to physical or mental examinations for insurance purposes at 
regional offices or medical facilities shall be furnished when the 
insured is ordered to report for examination at the specific request of 
the insurance activity concerned, or the Director of a regional office 
or of a medical facility. Such expenses will be borne by the United 
States and will be paid from the applicable appropriation of the 
Veterans Health Services and Research Administration. Transportation, 
meal and lodging requests in connection with reporting to and returning 
from the place of examination may be furnished the applicant, or the 
applicant may travel at his or her own expense and claim reimbursement 
for such travel on a mileage basis, provided prior authority has been 
given for the travel. Travel incident to such an examination by salaried 
employees of the Department of Veterans Affairs will be in accordance 
with the Federal Travel Regulations. If such an examination is made by a 
medical examiner on a fee basis, payment will be made at a fee not in 
excess of the schedule of fees in effect and approved by the Department 
of Veterans Affairs for medical and professional services in the State 
in which the examination is made. Where no approved State fee schedule 
is in effect or where a fee for the type of examination authorized is 
not listed in the approved State fee schedule in effect, such 
examinations will be furnished at a fee not in excess of that listed in 
the ``Guide for Charges for Medical and Ancillary Services'' of the 
Veterans Health Services and Research Administration in effect at the 
time the examination is authorized. If the particular examination is not 
covered by a schedule in effect and/or the said guide, a fee not in 
excess of what is reasonable and customarily charged

[[Page 490]]

in the community concerned may be allowed.

[30 FR 3650, Mar. 19, 1965, as amended at 47 FR 11659, Mar. 18, 1982. 
Redesignated and amended at 61 FR 29290, 29293, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000; 65 FR 19659, Apr. 12, 2000]

                          Optional Settlements



Sec. 8.25  Options.

    Insurance will be paid in a lump sum only when selected by the 
insured during his or her lifetime or by his or her last will and 
testament.

[61 FR 29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000, 
and further redesignated at 67 FR 54739, Aug. 26, 2002]

                        Renewal of Term Insurance



Sec. 8.26  Renewal of National Service Life Insurance on the 5-year 
level premium term plan.

    (a) Effective July 23, 1953, all or any part of National Service 
Life Insurance on the 5-year level premium term plan, in any multiple of 
$500 and not less than $1,000, which is not lapsed at the expiration of 
any 5-year term period, shall be automatically renewed without 
application or medical examination for a successive 5-year period at the 
applicable level premium term rate for the then attained age of the 
insured: Provided, That on or after September 1, 1984, National Service 
Life Insurance ``V'' 5-year level premium term rates shall not exceed 
the renewal age 70 term premium rate, or that on or after (the date the 
regulation is published as final), Veterans Special Life Insurance 
``RS'' five-year level premium term rates shall not exceed the renewal 
age 70 ``RS'' term premium rate: Provided further, That in any case in 
which the insured is shown by satisfactory evidence to be totally 
disabled at the expiration of the term period of his or her insurance 
under conditions which would entitle the insured to continued insurance 
protection but for such expiration, such insurance, if subject to 
renewal under this paragraph shall be automatically renewed for an 
additional period of 5 years at the applicable premium rate. The renewal 
of insurance for any successive 5-year period will become effective as 
of the day following the expiration of the preceding term period, and 
the premium for such renewal will be the applicable level premium term 
rate on that day: Provided further, That no insurance is subject to 
renewal if the policyholder has exercised the insured's right to change 
to another plan of insurance.


(Authority: 38 U.S.C. 1905, 1906)

    (b) Effective June 25, 1970, a 5-year level premium term policy 
which lapsed for nonpayment of the premium due and subsequently expired 
may be renewed subsequently to the expiration of the old term period 
provided the insured within 5 years of the date of lapse:
    (1) Submits written application for reinstatement of the insurance.
    (2) Tenders two monthly premiums, one for the month of lapse at the 
rate for the expired term and the other for the month of reinstatement 
at the rate for the new term.
    (3)(i) If application for reinstatement is submitted and the 
premiums tendered within 6 premium months after lapse, including the 
premium month for which the unpaid premium was due, insurance will be 
reinstated provided the applicant be in as good health on the date of 
application and tender of premiums as he was on the last day of the 
grace period of the premium in default and furnishes satisfactory 
evidence thereof.
    (ii) If application for reinstatement is submitted and the premiums 
tendered after expiration of the 6-month period mentioned in subdivision 
(i) of this subparagraph, insurance will be reinstated provided 
applicant is in good health (Sec. 8.0) on the date of application and 
tender of premiums and furnishes satisfactory evidence thereof.

[21 FR 6544, Aug. 30, 1956, as amended at 24 FR 21, Jan. 1, 1959; 30 FR 
3652, Mar. 19, 1965; 33 FR 365, Jan. 10, 1968; 36 FR 4384, Mar. 5, 1971; 
49 FR 34484, Aug. 31, 1984; 54 FR 5931, Feb. 7, 1989. Redesignated and 
amended at 61 FR 29290, 29293, June 10, 1996. Redesignated at 65 FR 
7437, Feb. 15, 2000, and further redesignated at 67 FR 54739, Aug. 26, 
2002]

[[Page 491]]

       Settlement of Insurance Maturing on or After August 1, 1946



Sec. 8.27  Conditional designation of beneficiary.

    If the insured by notice in writing to the Department of Veterans 
Affairs during his lifetime has provided that a designated beneficiary 
shall be entitled to the proceeds of National Service life insurance 
only if such beneficiary shall survive him for such period (not more 
than 30 days), as specified by the insured, no right to the insurance 
shall vest as to such beneficiary during that period. In the event such 
beneficiary fails to survive the specified period, payment of the 
proceeds of National Service life insurance will be made as if the 
beneficiary had predeceased the insured.

[14 FR 7175, Nov. 29, 1949. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000, and further redesignated at 
67 FR 54739, Aug. 26, 2002]



Sec. 8.28  Application for reinstatement of total disability income 
provision.

    A total disability income provision which is lapsed may be 
reinstated if the insured meets the same requirements as those for 
reinstatement of the policy to which the total disability income 
provision is attached; except that in no event shall the requirement of 
a health statement or other medical evidence be waived in connection 
with the reinstatement of the total disability income provision.

[61 FR 29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000, 
and further redesignated at 67 FR 54739, Aug. 26, 2002]

                 National Service Life Insurance Policy



Sec. 8.29  Policy provisions.

    Contracts of insurance authorized to be made in accordance with the 
terms and conditions set forth in the forms and policy plans are subject 
in all respects to the applicable provisions of title 38 U.S.C., 
amendments and supplements thereto, and applicable Department of 
Veterans Affairs regulations promulgated pursuant thereto, all of which 
together with the insured's application, required evidence of health, 
including physical examination, if required, and tender of premium shall 
constitute the contract.

[61 FR 29293, June 10, 1996. Redesignated at 65 FR 7437, Feb. 15, 2000, 
and further redesignated at 67 FR 54739, Aug. 26, 2002]

                                 Appeals



Sec. 8.30  Appeal to Board of Veterans Appeals.

    (a) The provisions of Part 19 of this chapter will be followed in 
connection with appeals to the Board of Veterans Appeals involving 
questions pertaining to the denial of applications for insurance, total 
disability income provision, or reinstatement; disallowance of claims 
for insurance benefits; and decisions holding fraud or imposing 
forfeiture. Notice to the applicant or claimant and his representative, 
if any, of the right to appeal will be sent by the insurance activity 
having jurisdiction over the case, at time action of denial, 
disallowance, or forfeiture is taken.
    (b) When an appeal to the Board of Veterans Appeals is initiated by 
a notice of disagreement, any unpaid premiums, normally due under the 
policy from effective date of issue or reinstatement (as appropriate), 
will become an interest-bearing lien, enforceable as a legal debt due 
the United States and subject to all available collection procedures in 
the event of favorable action by the Board.
    (c) Where the adverse action from which appeal is taken involves a 
change in or addition to insurance currently in force, premium payments 
must be continued on the existing contract.

[33 FR 3176, Feb. 20, 1968. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000, and further redesignated at 
67 FR 54739, Aug. 26, 2002]



Sec. 8.31  Total disability for twenty years or more.

    Where the Disability Insurance Claims activity has made a finding of 
total disability for insurance purposes and it is found that such 
disability remained continuously in effect for 20 or more years, the 
finding will not be discontinued thereafter, except upon a showing that 
such a determination was based on fraud. The 20-year period will

[[Page 492]]

be computed from the date the continuous total disability commenced, as 
determined by the Disability Insurance Claims activity.

[27 FR 11893, Dec. 1, 1962. Redesignated at 61 FR 29290, June 10, 1996. 
Redesignated at 65 FR 7437, Feb. 15, 2000, and further redesignated at 
67 FR 54739, Aug. 26, 2002]



Sec. 8.32  Authority of the guardian.

    What actions does a guardian have the authority to take for 
insurance purposes? The guardian of an insured or beneficiary has the 
authority to take the following actions:
    (a) Apply for insurance or for conversion of a policy or change of 
plan;
    (b) Reinstate a policy;
    (c) Withdraw dividends held on deposit or credit;
    (d) Select or change a dividend option;
    (e) Obtain a policy loan;
    (f) Cash surrender a policy;
    (g) Authorize a deduction from benefits or allotment from military 
retired pay to pay premiums;
    (h) Apply for and receive payment of proceeds on a matured policy;
    (i) Select or change the premium payment option;
    (j) Apply for waiver of premiums and total disability income 
benefits;
    (k) Select or change settlement options for beneficiaries; and
    (l) Assign a beneficiary's interest as provided under section 1918 
of title 38 U.S.C.

(Authority: 38 U.S.C. 1906)

[67 FR 54739, Aug. 26, 2002]



Sec. 8.33  Cash value for term-capped policies.

    (a) What is a term-capped policy? A term-capped policy is a National 
Service Life Insurance policy prefixed with ``V'' or Veterans Special 
Life Insurance policy prefixed with ``RS,'' issued on a 5-year level 
premium term plan in which premiums have been capped (frozen) at the 
renewal age 70 rate.
    (b) How can a term-capped policy accrue cash value? Normally, a 
policy issued on a 5-year level premium term plan does not accrue cash 
value (see section 8.14). However, notwithstanding any other provisions 
of this part, reserves have been established to provide for cash value 
for term-capped policies.
    (c) On what basis have the reserve values been established? Reserve 
values have been established based upon the 1980 Commissioners Standard 
Ordinary Basic Table and interest at five per centum per annum in 
accordance with accepted actuarial practices.
    (d) How much cash value does a term-capped policy have? The cash 
value for each policy will depend on the age of the insured, the type of 
policy, and the amount of coverage in force and will be calculated in 
accordance with accepted actuarial practices. For illustrative purposes, 
below are some examples of cash values based upon a $10,000 policy at 
various attained ages for an NSLI ``V'' policy and a VSLI ``RS'' policy:

------------------------------------------------------------------------
                                                 Cash value   Cash value
                      Age                          ``V''        ``RS''
------------------------------------------------------------------------
75............................................       $1,494       $1,716
80............................................        3,212        3,358
85............................................        4,786        4,818
90............................................        6,249        6,217
95............................................        8,887        7,286
------------------------------------------------------------------------

    (e) What can be done with this cash value? Upon cancellation or 
lapse of the policy, a policyholder may receive the cash value in a lump 
sum or may use the cash value to purchase paid-up insurance. If a term-
capped policy is kept in force, cash values will continue to grow.
    (f) How much paid-up insurance can be obtained for the cash value? 
The amount of paid-up insurance that can be purchased will depend on the 
amount of cash value that the policy has accrued and will be calculated 
in accordance with accepted actuarial practices. For illustrative 
purposes, below are some examples of paid-up insurance that could be 
purchased by the cash value of a ``V'' and an ``RS'' $10,000 policy at 
various attained ages:

------------------------------------------------------------------------
                                                  Paid-up      Paid-up
                      Age                          ``V''        ``RS''
                                                 insurance    insurance
------------------------------------------------------------------------
75............................................       $2,284       $2,625
80............................................        4,452        4,654
85............................................        6,109        6,149
90............................................        7,421        7,115
95............................................        9,331        7,650
------------------------------------------------------------------------


[[Page 493]]

    (g) If the policy lapses due to non-payment of the premium, does the 
policyholder nonetheless have a choice of receiving the cash value or 
paid-up insurance? Yes, the policyholder will have that choice, along 
with the option to reinstate the policy (see section 8.10 for 
reinstatement of a policy). However, if a policyholder does not make a 
selection, VA will apply the cash value to purchase paid-up insurance. 
Paid-up insurance may be surrendered for cash at any time.
    (h) If a policyholder elects to receive either the cash surrender or 
paid-up insurance due to lapse or voluntary cancellation of a term-
capped policy, may the original term-capped policy be reinstated? Yes, 
the term-capped policy may be reinstated but the policyholder, in 
addition to meeting the reinstatement requirements of term policies, 
must also pay the current reserve value of the reinstated policy.

[65 FR 54799, Sept. 11, 2000. Redesignated at 67 FR 54739, Aug. 26, 
2002]



PART 8a_VETERANS MORTGAGE LIFE INSURANCE--Table of Contents




Sec.
8a.1 Definitions.
8a.2 Maximum amount of insurance.
8a.3 Effective date.
8a.4 Coverage.

    Authority: 38 U.S.C. 501, and 2101 through 2106, unless otherwise 
noted.

    Source: 37 FR 282, Jan. 8, 1972, unless otherwise noted.



Sec. 8a.1  Definitions.

    (a) The term housing unit means a family dwelling or unit, together 
with the necessary land therefor, that has been or will be purchased, 
constructed, or remodeled with a grant to meet the needs of an eligible 
veteran and of his or her family, and is or will be owned and occupied 
by the eligible veteran as his or her home, or a family dwelling or 
unit, including the necessary land therefor, acquired by an eligible 
veteran to be used as his or her residence after selling or otherwise 
disposing of title to the housing unit for which his or her grant was 
made.
    (b) The term Veterans Mortgage Life Insurance (VMLI) means the 
mortgage protection life insurance authorized for veterans under 38 
U.S.C. 2106.
    (c) The term initial amount of insurance means the amount of 
insurance corresponding in amount to the unpaid principal of a mortgage 
loan outstanding on a housing unit owned or to be acquired by an 
eligible veteran on August 11, 1971, or on the date of approval of his 
or her grant made under chapter 21 of title 38 U.S.C., whichever is the 
later date.
    (d) The term mortgage loan means any loan, lien, or other 
indebtedness incurred by an eligible veteran to buy, build, remodel, or 
enlarge a housing unit, the payment of which loan, lien, or indebtedness 
is secured by a mortgage lien, or other equivalent security of record, 
on the housing unit in the usual legal form employed in the community in 
which the property is situated. The term also includes refinancing of 
such an indebtedness to avoid a default, to consolidate liens, to renew 
or extend the time for payment of the indebtedness, and in cases where 
the housing unit is being bought, built, remodeled, or enlarged by 
increasing the amount of such an indebtedness.
    (e) The term owned means the eligible veteran has or will acquire an 
interest in the housing unit which is:
    (1) A fee simple estate, or
    (2) A leasehold estate, the unexpired term of which, including 
renewals at the option of the lessee, is not less than 50 years, or
    (3) An interest in a residential unit in a cooperative or a 
condominium type development which in the judgment of the Under 
Secretary for Benefits or the Director, Loan Guaranty Service, provides 
a right of occupancy for a period of not less than 50 years: Provided, 
The title to such estate or interest is or shall be such as is 
acceptable to prudent lending institutions, informed buyers, title 
companies, and attorneys, generally, in the community.

[37 FR 282, Jan. 8, 1972, as amended at 42 FR 43835, Aug. 31, 1977; 61 
FR 29027, June 7, 1996]



Sec. 8a.2  Maximum amount of insurance.

    (a) Each eligible veteran is authorized up to a maximum of $90,000 
in VMLI to insure his or her life during periods he or she is obligated 
under a

[[Page 494]]

mortgage loan, except that, as to an individual housing unit, whenever 
there is a reduction in the actual amount of insurance in force as 
provided for in Sec. 8a.4(a) the amount of VMLI thereafter available to 
insure the life of the same veteran on the same housing unit is 
permanently reduced by a like amount.
    (b) The maximum amount of insurance in force on any one life at one 
time shall not exceed the lesser of the following amounts:
    (1) $90,000.
    (2) For insurance issued prior to December 24, 1987, the reduced 
maximum amount of insurance then available to an eligible veteran.
    (3) The amount of the unpaid principal of the mortgage loan 
outstanding on the date of approval of the grant on a housing unit then 
owned and occupied by the eligible veteran, or on a housing unit being 
or to be constructed or remodeled for the eligible veteran, and such 
initial amount of insurance may be adjusted upward, subject to the 
maximum insurance available to the eligible veteran, or downward, 
depending upon the amount of the mortgage loans outstanding on the date 
of full disbursement of the grant, or on the date of final settlement of 
the purchase, construction, or remodeling agreement, whichever date is 
the later date.
    (4) Where an eligible veteran ceases to own the housing unit which 
was subject to a mortgage loan that resulted in his or her life being 
insured under VMLI, and becomes obligated under a mortgate loan on 
another housing unit occupied or to be occupied by the eligible veteran, 
the amount of the unpaid principal outstanding on the mortgage loan on 
the newly acquired housing unit on the date insurance hereunder is 
placed in effect.
    (5) Where an eligible veteran incurs or refinances a mortgage loan, 
subject to the provisions of paragraph (a) of this section, the amount 
of the incurred or refinanced mortgage loan.
    (6) If title to an undivided interest in a housing unit is or will 
be vested in a person other than the spouse of an eligible veteran, the 
amount of VMLI or his or her life shall be computed to be such part of 
the total of the unpaid principal of the loan outstanding on the housing 
unit as is proportionate to the undivided interest of the veteran in the 
entire property.
    (7) All claims, arising out of the deaths of insured veterans 
occurring prior to October 1, 1976, shall be subject to the $30,000 
lifetime maximum amount of insurance then in effect. All claims, arising 
out of the deaths of insured veterans occurring on or after October 1, 
1976, but prior to December 1, 1992, shall be subject to the $40,000 
lifetime maximum amount of insurance then in effect.
    (8) All claims, arising out of the deaths of insured veterans 
occurring prior to (date of final publication), shall be subject to the 
provisions of paragraph (a) of this section then in effect which limited 
the amount of VMLI coverage to a lifetime maximum per eligible veteran.
    (c) Any eligible veteran who prior to October 1, 1976, was covered 
by $30,000 VMLI and who on that date became eligible to have his or her 
coverage increased may elect to retain the lesser amount of coverage he 
or she had in effect prior to that date.

(Authority: 38 U.S.C. 501, 2106)

[52 FR 48682, Dec. 24, 1987, as amended at 59 FR 59921, Nov. 21, 1994; 
61 FR 29027, June 7, 1996]



Sec. 8a.3  Effective date.

    (a) Where the grant was approved prior to August 11, 1971, VMLI 
shall be effective August 11, 1971, if on that date, the eligible 
veteran was obligated under a mortgage loan, and any such eligible 
veteran is automatically insured, unless he or she elects in writing not 
to be insured, or fails to respond within 60 days after the date a final 
request is made or mailed to the eligible veteran for information on 
which his or her premium can be based.
    (b) Where the grant is approved on or after August 11, 1971, VMLI 
shall be effective on the date of approval of the grant, if on that date 
the eligible veteran is obligated under a mortgage loan, and any such 
eligible veteran is automatically insured, unless he or she elects in 
writing not to be insured, or fails to respond within 60 days after the 
date a final request is made or mailed to the eligible veteran for 
information

[[Page 495]]

on which his or her premium can be based.
    (c) In any case in which a veteran would have been eligible for VMLI 
on August 11, 1971, or on the date of approval of his or her grant, 
whichever date is the later date, but such insurance did not become 
effective because he or she was not obligated under a mortgage loan on 
that date, or because he or she elected in writing not to be insured, or 
failed to timely respond to a request for information on which his or 
her premium could be based, the insurance will be effective on a date 
agreed upon by the veteran and the Secretary, but only if the veteran 
files an application in writing with the Department of Veterans Affairs 
for such insurance, submits evidence that he or she meets the health 
requirements of the Secretary, together with information on which his or 
her premiums can be based, and is or becomes obligated under a mortgage 
loan upon the date agreed upon as the effective date of his or her 
insurance.
    (d) In any case in which an eligible veteran disposes of the housing 
unit purchased, constructed or remodeled in part with a grant, or a 
subsequently acquired housing unit, and becomes obligated under a 
mortgage loan on another housing unit occupied or to be occupied by the 
eligible veteran, the insurance will be effective upon a date requested 
by the veteran and agreed to by the Secretary, but only if the eligible 
veteran files an application for such insurance, submits evidence that 
he or she meets the health requirements of the Secretary, furnishes 
information on which his or her premium can be based, and is or becomes 
obligated under a mortgage loan on the date the insurance is to become 
effective.
    (e) In any case where an eligible veteran insured under VMLI, 
refinances the mortgage loan which is the basis for such insurance on 
his or her life, any increase in the amount of insurance or any delay in 
the rate of reduction of insurance will be effective only if the 
eligible veteran files an application for insurance, submits evidence 
that he or she meets the health requirements of the Secretary, and 
furnishes information on which his or her premium can be based.

[42 FR 43835, Aug. 31, 1977, as amended at 61 FR 29027, June 7, 1996]



Sec. 8a.4  Coverage.

    (a) The amount of VMLI in force on his or her life at any one time 
shall be reduced simultaneously (1) with the reduction in the principal 
of the mortgage loan, whether or not the mortgage loan is amortized, and 
(2) in addition, if the mortgage loan is amortized, according to the 
schedule for the reduction of the principal of the mortgage loan whether 
or not the schedule payments are timely made.
    (b) If the amount of the mortgage loan exceeds $90,000, or the 
reduced maximum amount of insurance available to an eligible veteran, 
whichever amount is the lesser, the amount of insurance in force on the 
life of the veteran shall remain at a constant level until the principal 
amount of the mortgage loan which is basis for establishing the amount 
of insurance is reduced to $90,000, or to the amount of the reduced 
maximum amount of insurance available to the veteran, at which time the 
amount of insurance in force on his or her life shall be reduced in 
accordance with the schedule for the reduction of the principal of the 
mortgage loan, and whether or not the scheduled payments are timely 
made.
    (c) Subject to the $90,000 maximum amount of insurance, and to the 
reduced maximum amount of insurance available to the eligible veteran, 
he or she is entitled to be insured under VMLI or to apply for such 
insurance as often as he or she becomes obligated under a mortgage loan 
or a refinanced mortgage loan on a housing unit or a successor housing 
unit owned and occupied by the eligible veteran. Where a veteran who is 
not automatically insured under VMLI applies for such insurance, he or 
she shall be required to meet the health standards and other conditions 
established by the Secretary for such insureds.

(Authority: 38 U.S.C. 501, 2106)

[37 FR 282, Jan. 8, 1972, as amended at 42 FR 43836, Aug. 31, 1977; 52 
FR 48682, Dec. 24, 1987; 59 FR 59921, Nov. 21, 1994; 61 FR 29027, June 
7, 1996]

[[Page 496]]



PART 9_SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP LIFE 
INSURANCE--Table of Contents




Sec.
9.1 Definitions.
9.2 Effective date; applications.
9.3 Waiver or reduction of coverage.
9.4 Beneficiaries and options.
9.5 Payment of proceeds.
9.6 Assignments.
9.7 Administrative decisions.
9.8 Termination of coverage.
9.9 Conversion privilege.
9.10 Health standards.
9.11 Criteria for reinsurers and converters.
9.12 Reinsurance formula.
9.13 Actions on the policy.
9.14 Accelerated Benefits.

    Authority: 38 U.S.C. 501, 1965-1980, unless otherwise noted.

    Source: 40 FR 4135, Jan. 28, 1975, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 9 appear at 62 FR 
35970, July 3, 1997, and 62 FR 47533, Sept. 9, 1997.



Sec. 9.1  Definitions.

    The following definitions are in addition to those definitions in 38 
U.S.C. 101 and 1965:
    (a) The term policy means Group Policy No. G-32000, which was 
effective September 29, 1965, purchased from the insurer pursuant to 38 
U.S.C. 1966, executed and attested on December 30, 1965, and amended 
thereafter.
    (b) The term administrative office means the Office of 
Servicemembers' Group Life Insurance located at 290 W. Mt. Pleasant 
Avenue, Livingston, New Jersey 07039.
    (c) The term insurer means the commercial life insurance company or 
companies selected under 38 U.S.C. 1966 to provide insurance coverage 
specified in the policy.
    (d) The term reinsurer means any life insurance company meeting all 
the criteria set forth in Sec. 9.10 which reinsures a portion of the 
total amount of insurance covered by the policy and issues individual 
life insurance policies to members under the provisions of 38 U.S.C. 
1968(b) and 1977(e).
    (e) The term converter means any life insurance company meeting all 
the criteria set forth in Sec. 9.10 which issues individual life 
insurance policies to members under the provisions of 38 U.S.C. 1968(b) 
and 1977(e).
    (f) The term coverage means Servicemembers' Group Life Insurance or 
Veterans' Group Life Insurance payable upon death occurring while the 
member is insured under the policy.
    (g) The term termination of duty means (1) In the case of active 
duty or active duty for training being performed under a call or order 
that does not specify a period of less than 31 days-discharge, release 
or separation from such duty.
    (2) In the case of other duty--the member's release from his or her 
obligation to perform any duty in his or her uniformed service (active 
duty, or active duty for training or inactive duty training) whether 
arising from limitations included in a contract of enlistment or similar 
form of obligation or arising from resignation, retirement or other 
voluntary action by which the obligation to perform such duty ceases.
    (h) The term break in service means the situation(s) in which: (1) A 
member terminates duty or obligation to perform duty in one service and 
enters on duty or assumes the obligation to perform duty in another 
uniformed service, regardless of the length of time intervening.
    (2) A member reenters on duty or resumes an obligation to perform 
duty as a Reserve in the same uniformed service and 1 calendar day or 
more has elapsed following termination of the prior period of duty or 
obligation to perform duty.
    (i) The term disability means any type of injury or disease whether 
mental or physical.
    (j) The term total disability means any impairment of mind or body 
which continuously renders it impossible for the insured to follow any 
substantially gainful occupation. Without prejudice to any other cause 
of disability, the permanent loss of the use of both feet, of both 
hands, or of both eyes, or of one foot and one hand, or of one foot and 
one eye, or of one hand and one eye, or the total loss of hearing of 
both ears, or the organic loss of speech shall be deemed to be total 
disability. Organic loss of speech will mean the loss of the ability to 
express oneself, both by voice

[[Page 497]]

and whisper, through the normal organs of speech if such loss is caused 
by organic changes in such organs. Where such loss exists, the fact that 
some speech can be produced through the use of an artificial appliance 
or other organs of the body will be disregarded.

[40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17698, May 18, 1988; 61 
FR 20135, May 6, 1996; 67 FR 52413, Aug. 12, 2002]



Sec. 9.2  Effective date; applications.

    (a) The effective date of Servicemembers' Group Life Insurance will 
be in accordance with provisions set forth in 38 U.S.C. 1967.
    (b) The effective date of Veterans' Group Life Insurance will be as 
follows:
    (1) For members whose Servicemembers' Group Life Insurance coverage 
ceases under 38 U.S.C. 1968 (a)(1)(A) and 38 U.S.C. 1968(a)(4), the 
effective date shall be the 121st day after termination of duty. An 
application and the initial premium must be received by the 
administrative office within 120 days following termination of duty or 
separation or release from such assignment.
    (2) For members whose Servicemembers' Group Life Insurance coverage 
was extended because of total disability, the effective date shall be 
the day following the end of the 1-year period of extended coverage or 
the day following the end of the total disability, whichever is the 
earlier date, but in no event before the 121st day following termination 
of duty. An application and the initial premium must be received by the 
administrative office within 1 year following termination of duty.
    (3) For members who qualify for coverage under 38 U.S.C. 1967(b), 
the effective date shall be the 121st day after termination of duty. An 
application, the initial premium, and proof of disability must be 
received by the administrative office within 120 days following 
termination of duty.
    (4) For members of the Individual Ready Reserve or the Inactive 
National Guard, the effective date shall be the date an application and 
the initial premium are received by the administrative office. The 
application and initial premium must be received by the administrative 
office within 120 days of becoming a member of either organization.


(Authority: 38 U.S.C. 1977(e))

    (c) If either an application or the initial premium has not been 
received by the administrative office within the time limits set forth 
above, Servicemembers' Group Life Insurance or Veterans' Group Life 
Insurance coverage may still be granted if an application, the initial 
premium, and evidence of insurability are received by the administrative 
office within 1 year and 120 days following termination of duty.
    (d) The effective date for Servicemembers' Group Life Insurance or 
Veterans' Group Life Insurance in any case not otherwise covered under 
this section or under 38 U.S.C. 1967(a) shall be the date an application 
and the initial premium are received by the administrative office.
    (e) For purposes of this section, an application, an initial 
premium, and any evidence necessary to effect Servicemembers' Group Life 
Insurance or Veterans' Group Life Insurance coverage will be considered 
to have been received by the administrative office if:
    (1) They are properly addressed to the administrative office, and
    (2) The proper postage is affixed, and
    (3) They are legibly postmarked within the time limit required for 
receipt by the administrative office.

[61 FR 20135, May 6, 1996, as amended at 62 FR 35970, July 3, 1997]



Sec. 9.3  Waiver or reduction of coverage.

    (a) Full-time coverage which is in effect will terminate or be 
reduced at midnight of the last day of the month a member's written 
notice requesting such termination or reduction is received by his or 
her uniformed service. In the case of a member paying premiums directly 
to the administrative office, full-time coverage will terminate or be 
reduced as of the last day of the month for which the last full premium 
was paid. Termination or reduction of coverage is effective for the 
entire remaining period of active duty unless the member reinstates his 
or her coverage under the provisions of 38 U.S.C. 1967(c). If, following 
termination

[[Page 498]]

of duty, a member reenters duty (in the same or another uniformed 
service), a waiver or reduction for the previous period of duty will not 
apply to the subsequent period of duty.
    (b) Part-time coverage will terminate or be reduced at the end of 
the last day of the period of duty then being performed if the member is 
on active duty or active duty for training when the waiver or reduction 
is filed; at the end of the period of inactive duty training then being 
performed if the member is on inactive duty training when the waiver or 
reduction is filed; or on the date the waiver or reduction is received 
by his or her uniformed service if the member is not on active duty, 
active duty for training; or inactive duty training on the date the 
waiver or reduction is filed.
    (1) When a member insured under part-time coverage waives his or her 
right to group coverage or elects a reduced amount of insurance, such 
waiver or election, unless changed, is effective throughout the period 
of the member's continuous reserve obligation in the same uniformed 
service. If, following termination of duty, the member reenters duty or 
resumes the obligation to perform duty (in the same or another uniformed 
service), the waiver or reduction will not apply to the subsequent 
period of duty or obligation.
    (2) If a reservist insured under part-time coverage is called or 
ordered to active duty or active duty for training under a call or order 
that does not specify a period of less than 31 days and is separated or 
released from such duty and then resumes his or her reserve obligation, 
any waiver or election of reduced coverage made while eligible for part-
time coverage, unless changed, shall be effective throughout the entire 
period of part-time coverage, the active duty or active duty for 
training period and 120 days thereafter and the period of immediately 
resumed reserve obligation.
    (3) If a member, other than a member referred to in paragraph (b)(2) 
of this section, upon termination of duty qualifying him or her for 
full-time coverage assumes an obligation to perform duty as a reservist, 
any waiver or election previously made by the member shall not apply to 
coverage arising from his or her reservist obligation. Furthermore, 
during the 120 days following termination of such duty the full-time 
coverage shall not be reduced by any waiver or election made by a member 
as a reservist.

[40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8070, Feb. 25, 1983; 53 
FR 17698, May 18, 1988. Redesignated and amended at 61 FR 20135, May 6, 
1996]



Sec. 9.4  Beneficiaries and options.

    Any designation of beneficiary or election of settlement options is 
subject to the provisions of 38 U.S.C. 1970 and 1977 and the following 
provisions:
    (a) Any designation of beneficiary or settlement option election 
made by any member insured under Servicemembers' Group Life Insurance 
for full-time coverage or part-time coverage will remain in effect until 
properly changed by the member or canceled automatically for any of the 
following reasons:
    (1) The insurance terminates following separation or release from 
all duty in a uniformed service.
    (2) The member enters on duty in another uniformed service.
    (3) The member reenters on duty in the same uniformed service more 
than 1 calendar day after separation or release from all duty in that 
uniformed service.
    (b) A change of beneficiary may be made at any time and without the 
knowledge or consent of the previous beneficiary.
    (c) Until and unless otherwise changed, a beneficiary designation 
and settlement option election of record on the date a statutory 
increase in coverage takes effect shall be considered to be a 
beneficiary and optional settlement election for the increased amount as 
well, and any beneficiary named therein shall be entitled to the same 
percentage (%) share of the new total coverage amount as that 
beneficiary was entitled to prior to the statutory increase in coverage.

(Authority: 38 U.S.C. 501)

[40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988. 
Redesignated and amended at 61 FR 20135, 20136, May 6, 1996]

[[Page 499]]



Sec. 9.5  Payment of proceeds.

    Proceeds shall be paid in accordance with provisions set forth in 38 
U.S.C. 1970 and the following provisions:
    (a) If proceeds are to be paid in installments, the first 
installment will be payable as of the date of death. The amount of each 
installment will be computed so as to include interest on the unpaid 
balance at the then effective rate.
    (b) If, following the death of an insured member who has designated 
both principal and contingent beneficiaries and elected to have payment 
made in 36 equal monthly installments, the principal beneficiary dies 
before all 36 installments have been paid, the remaining installments 
will be paid as they fall due to the contingent beneficiary. At the 
death of such a contingent beneficiary, and in other instances of a 
beneficiary's death, where there is no contingent beneficiary, the value 
of any unpaid installments, discounted to the date of his or her death 
at the same rate used for inclusion of interest in the computation of 
installments will be paid, without further accrual of interest, in one 
sum to the estate of the beneficiary or continent beneficiary last 
receiving payment.
    (c) In instances where payment in installments is made at the 
election of the beneficiary, upon his or her request, the value of such 
installments as remain unpaid will be discounted to the date of payment 
at the same rate used for inclusion of interest in the computation of 
installments and paid to him or her in one sum.
    (d) If a member whose coverage is extended due to total disability 
converts the group insurance to an individual policy which is effective 
before he or she ceases to be totally disabled or before the end of 1 
year following termination of duty, whichever is earlier, and dies while 
group insurance would be in effect, except for such conversion, the 
group insurance will be payable, provided the individual policy is 
surrendered for a return of premiums and without further claim. When 
there is no such surrender, any amount of group insurance in excess of 
the amount of the individual policy will be payable.

(Authority: 38 U.S.C. 501)

[40 FR 4135, Jan. 28, 1975, as amended at 50 FR 12252, Mar. 28, 1985. 
Redesignated and amended at 61 FR 20135, 20136, May 6, 1996]



Sec. 9.6  Assignments.

    Servicemembers' Group Life Insurance, Veterans' Group Life Insurance 
and benefits thereunder are not assignable.

[40 FR 4135, Jan. 28, 1975. Redesignated at 61 FR 20135, May 6, 1996]



Sec. 9.7  Administrative decisions.

    (a) Determinations of the Department of Veterans Affairs are 
conclusive under the policy with respect to the following:
    (1) The status of any person being within the term member and 
whether or not he or she is covered at any point of time under the 
policy including traveltime under 38 U.S.C. 1967(b) and death within 120 
days thereafter from a disability incurred or aggravated while on duty.
    (2) The fact and date of a member's termination of active duty, or 
active duty for training, and the fact, date and hours of a member's 
performance of inactive duty training.
    (3) The fact and dates with respect to a member's absence without 
leave, confinement by civilian authorities under a sentence adjudged by 
a civil court, or confinement by military authorities under a court-
martial sentence involving total forfeiture of pay and allowances.
    (4) The operation of the forfeiture provision provided in 38 U.S.C. 
1973 with respect to any member.
    (5) The existence of total disability or insurability at standard 
premium rates under 38 U.S.C. 1968.
    (b) When determination is required on a claim that a member who 
waived coverage, or whose coverage was forfeited for one of the offenses 
listed under 38 U.S.C. 1973 was in fact insured, or that a member who 
elected to be insured was insured for an amount greater than the amount 
shown in the record, and there is no record of an application to be 
insured or to increase

[[Page 500]]

the amount of insurance as required under 38 U.S.C. 1967(c):
    (1) The person making the claim will be required to submit all 
evidence available concerning the member's actions and intentions with 
respect to Servicemembers' Group Life Insurance or Veterans' Group Life 
Insurance.
    (2) Request will be made to the member's uniformed service and any 
other likely source of information considered necessary, for whatever 
evidence in the form of copies of payroll or personnel records, 
statements of persons having knowledge of the facts, etc., is essential 
to a decision in the matter.

Based on the evidence obtained, a formal determination will be made as 
to whether the member involved is deemed to have applied to be insured, 
or to be insured for an amount other than the amount shown in the 
record. The determination will include a finding as to the member's 
health status for insurance purposes based on the evidence available.


(Authority: 38 U.S.C. 1967)

    (c) In making the determination required under paragraph (b) of this 
section, the following will be considered:
    (1) The possibility that due to widespread geographic distribution, 
inadequate means of communication and the nature of the group insurance 
program, members may not be adequately and accurately informed, 
especially in time of war or military emergency, about the detailed 
requirements for obtaining insurance protection.
    (2) Payroll deductions made without objection by a member, following 
waiver or termination of coverage, representing premiums for insurance 
or additional insurance, may, by virtue of continuity or the 
circumstances surrounding their initiation, be indicative that the 
member did apply. Such deductions without a formal application of record 
may be considered as evidence that the member's application was not in 
proper form or misplaced. They may also be considered as evidence that 
an application was not made solely because of erroneous or incomplete 
counseling or absence of counseling on the part of the responsible 
personnel of the uniformed service.
    (d) Questions for determination under this section as well as those 
involving coverage of groups and classes of members and other questions 
are properly referable to the Assistant Director for Insurance. 
Authority to make any determinations required under this section is 
delegated to the Under Secretary for Benefits and Assistant Director for 
Insurance.

[40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988. 
Redesignated and amended at 61 FR 20135, 20136, May 6, 1996]



Sec. 9.8  Termination of coverage.

    Termination of coverage will be in accordance with the provisions of 
38 U.S.C. 1968 and Sec. 9.3 of this part and the following provisions:
    (a) In the case of a member whose coverage is forfeited under 38 
U.S.C. 1973, coverage terminates at the end of the day preceding the day 
on which the act or omission forming the basis for such forfeiture 
occurred.
    (b) In the event of discontinuance of the group policy, coverage 
terminates at the end of the day preceding the date of the 
discontinuance of the policy except for those members who are insured 
under Veterans' Group Life Insurance in which event coverage terminates 
at the expiration of the day preceding the anniversary of the effective 
date of such insurance which first occurs, 90 days or more after the 
discontinuance of the group policy.

[40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8071, Feb. 25, 1983; 53 
FR 17699, May 18, 1988; 57 FR 11910, Apr. 8, 1992. Redesignated and 
amended at 61 FR 20135, 20136, May 6, 1996; 62 FR 35970, July 3, 1997]



Sec. 9.9  Conversion privilege.

    (a) With respect to a member on active duty or active duty for 
training under a call or order to duty that specifies a period of less 
than 31 days, and a member insured during inactive duty training 
scheduled in advance by competent authority there shall be no right of 
conversion unless the insurance is continued in force under 38 U.S.C. 
1967(b) or 1968(a) for 120 days following a period of such duty, as the 
result of a disability incurred or aggravated during such a period of 
duty.
    (b) The individual policy of life insurance to which an insured may 
convert

[[Page 501]]

under 38 U.S.C. 1968(b) or 1977(e) shall not have disability or other 
supplementary benefits and shall not be term insurance or any policy 
which does not provide for cash values. Term riders providing level or 
decreasing insurance for which an additional premium is charged may be 
attached to an eligible basic conversion policy, but the rider will be 
excluded from the conversion pool agreement under the policy.
    (c) The insurer will establish a conversion pool in cooperation with 
the reinsurers and converters in accordance with the terms of the 
policy. Its purpose will be to provide for the determination and 
maintenance of appropriate charges arising from excess mortality under 
individual conversion policies issued in accordance with this section 
and provide for the appropriate distribution of the risk of loss due to 
such excess mortality among the reinsurers and converters.

[40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988. 
Redesignated and amended at 61 FR 20135, 20136, May 6, 1996]



Sec. 9.10  Health standards.

    (a) For the purpose of determining if a member who incurred a 
disability or aggravated a preexisting disability during a period of 
active duty or active duty for training under a call to duty specifying 
a period of less than 31 days or during a period of inactive duty was 
rendered uninsurable at standard premium rates, the underwriting 
criteria used by the insurer in determining good health for persons 
applying to it for life insurance in amounts not exceeding the maximum 
amount of coverage then available under 38 U.S.C. 1967 will be used.


(Authority: 38 U.S.C. 1967)

    (b) For all other purposes of determining if a member meets the 
necessary health requirements except paragraph (a) of this section, the 
underwriting criteria used by the insurer in determining good health for 
group life insurance purposes will be used.

[40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988. 
Redesignated at 61 FR 20135, May 6, 1996]



Sec. 9.11  Criteria for reinsurers and converters.

    The following criteria will control eligibility for reinsuring and 
converting companies:
    (a) The company must be a legal reserve life insurance company as 
classified by the insurance supervisory authorities of the State of 
domicile. Qualified fraternal organizations are included.
    (b) The company must have been in the life insurance business for a 
continuous period of 5 years prior to October 1, 1965, or the December 
31 preceding any redeterminations of the allocations. In the event of a 
merger, the 5-year requirement may be satisfied by either the surviving 
company or by one of the absorbed companies. Upon joint application by a 
subsidiary of a participating company, together with the parent company, 
the 5-year requirement may be waived provided such parent company owns 
more than 50 percent of the outstanding stock of the subsidiary and has 
been a legal reserve life insurance company for a period of 10 years or 
more.
    (c) The company must be licensed to engage in life insurance in at 
least one State of the United States or the District of Columbia.
    (d) The company will not be one: (1) Certified by the Department of 
Defense as being under suspension for cause for purpose of allotment or 
on-base solicitation privileges.
    (2) That solicits life insurance applications as conversion or other 
replacement of Servicemembers' Group Life Insurance or Veterans' Group 
Life Insurance coverage in jurisdictions in which it is not licensed.
    (3) That fails to take effective action to correct an improper 
practice followed by it or its agents within 30 days after written 
receipt of notice issued by the insurer or the Assistant Director for 
Insurance. Improper practice includes:
    (i) The use for solicitation purposes of lists of names and 
addresses of former members without obtaining reasonable assurance that 
such lists have not been obtained contrary to regulations of the 
Department of Defense or other uniformed service;

[[Page 502]]

    (ii) Failure to reveal sources and copies of mailing lists upon 
proper request or to otherwise cooperate in an authorized investigation 
of a reported improper practice;
    (iii) The use of written or oral representations which may mislead 
the person addressed as to the true role of the company or its 
representatives as one of the participating companies;
    (iv) The use of written or oral representations which may mislead 
the person addressed as to rights, privileges, coverage, premiums, or 
similar matters under Servicemembers' Group Life Insurance, Veterans' 
Group Life Insurance, or any policy issued or proposed to be issued as a 
conversion or other replacement coverage;
    (v) Violation of regulations of a uniformed service concerning 
solicitation of life insurance; and
    (vi) The use of written or oral references to Servicemembers' Group 
Life Insurance, Veterans' Group Life Insurance or conversions of 
Servicemembers' Group Life Insurance or Veterans' Group Life Insurance 
in connection with the attempted sale of an insurance policy which would 
not be, in fact, a conversion policy or a policy issued in lieu of a 
conversion, if those references might lead a person addressed to believe 
there is a connection between the policy being sold and coverage under 
Servicemembers' Group Life Insurance, Veterans' Group Life Insurance or 
a conversion of it.
    (e) Each reinsuring and converting company must agree to issue 
conversion policies to any qualified applicant regardless of race, 
color, religion, sex, or national origin, under terms and conditions 
established by the primary insurer.

[40 FR 4135, Jan. 28, 1975. Redesignated at 61 FR 20135, May 6, 1996]



Sec. 9.12  Reinsurance formula.

    The allocation of insurance to the insurer and each reinsurer will 
be based upon the following:
    (a) An amount of the total life insurance in force under the policy 
in proportion to the company's total life insurance in force in the 
United States where:

    The first $100 million in force is counted in full,
    The second $100 million in force is counted at 75 percent,
    The third $100 million in force is counted at 50 percent,
    The fourth $100 million in force is counted at 25 percent,
    And any amount above $400 million in force is counted at 5 percent.

    (b) The allocation will be redetermined at the beginning of each 
policy year for the primary insurer and the companies then reinsuring, 
with the portion as set forth in paragraph (a) of this section based 
upon the corresponding in force (excluding the Servicemembers' Group 
Life Insurance in force) as of the preceding December 31.
    (c) Any life insurance company, which is not initially participating 
in reinsurance or conversions, but satisfies the criteria set forth in 
Sec. 9.11, may subsequently apply to the primary insurer to reinsure 
and convert, or to convert only. The participation of such company will 
be effective as of the beginning of the policy year following the date 
on which application is approved by the insurer.

[40 FR 4135, Jan. 28, 1975. Redesignated and amended at 61 FR 20135, 
20136, May 6, 1996]



Sec. 9.13  Actions on the policy.

    The Assistant Director for Insurance will furnish the name and 
address of the insuring company upon written request of a member of the 
uniformed services or his or her beneficiary. Actions at law or in 
equity to recover on the policy, in which there is not alleged any 
breach of any obligation undertaken by the United States, should be 
brought against the insurer.

[40 FR 4135, Jan. 28, 1975. Redesignated and amended at 61 FR 20135, 
20136, May 6, 1996]



Sec. 9.14  Accelerated Benefits.

    (a) What is an Accelerated Benefit? An Accelerated Benefit is a 
payment of a portion of your Servicemembers' Group Life Insurance or 
Veterans' Group Life Insurance to you before you die.
    (b) Who is eligible to receive an Accelerated Benefit? You are 
eligible to receive an Accelerated Benefit if you have a valid written 
medical prognosis from a physician of 9 months or less to live,

[[Page 503]]

and otherwise comply with the provisions of this section.
    (c) Who can apply for an Accelerated Benefit? Only you, the insured 
member, can apply for an Accelerated Benefit. No one can apply on your 
behalf.
    (d) How much can you request as an Accelerated Benefit? (1) You can 
request as an Accelerated Benefit an amount up to a maximum of 50% of 
the face value of your insurance coverage.
    (2) Your request for an Accelerated Benefit must be $5,000 or a 
multiple of $5000 (for example, $10,000, $15,000).
    (e) How much can you receive as an Accelerated Benefit? You can 
receive as an Accelerated Benefit the amount you request up to a maximum 
of 50% of the face value of your insurance coverage, minus the interest 
reduction. The interest reduction is the amount the Office of 
Servicemembers' Group Life Insurance actuarially determines to be the 
amount of interest that would be lost because of the early payment of 
part of your insurance coverage. This means that if you have $100,000 in 
coverage and you request the maximum amount that you are eligible to 
request as an Accelerated Benefit, you will be paid $50,000 minus the 
interest reduction.
    (f) How do you apply for an Accelerated Benefit? (1) You can obtain 
an application form entitled ``Claim for Accelerated Benefits'' by 
writing the Office of Servicemembers' Group Life Insurance, 290 W. Mt. 
Pleasant Avenue, Livingston, New Jersey 07039; calling the Office of 
Servicemembers' Group Life Insurance toll-free at 1-800-219-1473; or 
downloading the form from the Internet at www.insurance.va.gov. You must 
submit the completed application form to the Office of Servicemembers' 
Group Life Insurance, 290 W. Mt. Pleasant Avenue, Livingston, New Jersey 
07039.
    (2) As stated on the application form, you will be required to 
complete part of the application form and your physician will be 
required to complete part of the application form. If you are an active 
duty servicemember, your branch of service will also be required to 
complete part of the form.

________________________________________________________________________

                       To Be Completed by Insured

                     Claim for Accelerated Benefits

Your name:______________________________________________________________
Social Security Number:_________________________________________________
Your home address:______________________________________________________
Date of birth:__________________________________________________________
Branch of Service (if covered under SGLI):______________________________
Your mailing address (if different from above):_________________________
Amount of SGLI coverage: $______________________________________________
Amount of claim (can be no more than one-half of coverage in increments 
of $5,000):_____________________________________________________________
Type of coverage (check one):
    SGLI (circle one of the following): Active Duty Ready Reserve Army 
or Air National Guard Separated or Discharged
    VGLI
    Note: If you checked SGLI, you must also have your military unit 
complete the attached form.
    I acknowledge that I have read all of the attached information about 
the accelerated benefit. I understand that I can get this benefit only 
once during my lifetime and that I can use it for any purpose I choose. 
I further understand that the face amount of my coverage will reduce by 
the amount of accelerated benefit I choose to receive now.

Your signature:_________________________________________________________
Date:___________________________________________________________________

                Authorization To Release Medical Records

    To all physicians, hospitals, medical service providers, 
pharmacists, employers, other insurance companies, and all other 
agencies and organizations:
    You are authorized to release a copy of all my medical records, 
including examinations, treatments, history, and prescriptions, to the 
Office of Servicemembers' Group Life Insurance (OSGLI) or its 
representatives.

Printed name:___________________________________________________________
Signature:______________________________________________________________
Date:___________________________________________________________________
    A photocopy of this authorization will be considered as effective 
and valid as the original.
    Valid for one year from date signed.

________________________________________________________________________

                      To Be Completed by Physician

                   Attending Physician's Certification

Patient's name:_________________________________________________________
Patient's Social Security Number:_______________________________________
Diagnosis:______________________________________________________________
ICD-9-CM Disease Code *:________________________________________________
Description of present medical condition (please attach results of x-
rays, E.K.G. or other tests):___________________________________________

    Is the patient capable of handling his/her own affairs? -------- 
Yes---- No----
    The patient applied for an accelerated benefit under his/her 
government life insurance

[[Page 504]]

coverage. To qualify, the patient must have a life expectancy of nine 
(9) months or less.
    Does your patient meet this requirement? -------- Yes---- No----

Attending Physician's name (please print):______________________________
State in which you are licensed to practice:____________________________
Specialty:______________________________________________________________
Mailing address:________________________________________________________
Telephone number:_______________________________________________________
Fax Number:_____________________________________________________________
Signature:______________________________________________________________
Date:___________________________________________________________________

    *ICD-9-CM is an acronym for International Classification of 
Diseases, 9th revision, Clinical Modification.

________________________________________________________________________

       To Be Completed by Personnel Office of Servicemember's Unit

(Complete this form only if the applicant for Accelerated Benefits is 
covered under SGLI.)

                       Branch of Service Statement

Servicemember's name:___________________________________________________
Social Security Number:_________________________________________________
Branch of Service:______________________________________________________
Amount of SGLI coverage: $______________________________________________
Monthly premium amount: $_______________________________________________
Name of person completing this form:____________________________________
Telephone Number:_______________________________________________________
Fax Number:_____________________________________________________________
Title of person completing this form:___________________________________
Duty Station and address:_______________________________________________
Signature of person completing this form:_______________________________
Date:___________________________________________________________________

    Notice: It is fraudulent to complete these forms with information 
you know to be false or to omit important facts. Criminal and/or civil 
penalties can result from such acts.

    (g) Who decides whether or not an Accelerated Benefit will be paid 
to you? The Office of Servicemembers' Group Life Insurance will review 
your application and determine whether you meet the requirements of this 
section for receiving an Accelerated Benefit.
    (1) They will approve your application if the requirements of this 
section are met.
    (2) If the Office of Servicemembers' Group Life Insurance determines 
that your application form does not fully and legibly provide the 
information requested by the application form, they will contact you and 
request that you or your physician submit the missing information to 
them. They will not take action on your application until the 
information is provided.
    (h) How will an Accelerated Benefit be paid to you? An Accelerated 
Benefit will be paid to you in a lump sum.
    (i) What happens if you change your mind about an application you 
filed for Accelerated Benefits? (1) An election to receive the 
Accelerated Benefit is made at the time you have cashed or deposited the 
Accelerated Benefit. After that time, you cannot cancel your request for 
an Accelerated Benefit. Until that time, you may cancel your request for 
benefits by informing the Office of Servicemembers' Group Life Insurance 
in writing that you are canceling your request and by returning the 
check if you have received one. If you want to change the amount of 
benefits you requested or decide to reapply after canceling a request, 
you may file another application in which you request either the same or 
a different amount of benefits.
    (2) If you die before cashing or depositing an Accelerated Benefit 
payment, the payment must be returned to the Office of Servicemembers' 
Group Life Insurance. Their mailing address is 290 W. Mt. Pleasant 
Avenue, Livingston, New Jersey 07039.
    (j) If you have cashed or deposited an Accelerated Benefit, are you 
eligible for additional Accelerated Benefits? No.

(Approved by the Office of Management and Budget under control number 
2900-0618)

(Authority: 38 U.S.C. 1965, 1966, 1967, 1980)

[67 FR 52413, Aug. 12, 2002]



PART 10_ADJUSTED COMPENSATION--Table of Contents




                     Adjusted Compensation; General

Sec.
10.0 Adjusted service pay entitlements.
10.1 Issuance of duplicate adjusted service certificate without bond.
10.2 Evidence required of loss, destruction or mutilation of adjusted 
          service certificate.
10.3 Issuance of duplicate adjusted service certificate with bond.
10.4 Loss, destruction, or mutilation of adjusted service certificate 
          while in possession of Department of Veterans Affairs.
10.15 Designation of more than one beneficiary under an adjusted service 
          certificate.
10.16 Conditions requisite for change in designation of beneficiary.
10.17 Designation of beneficiary subsequent to cancellation of previous 
          designation.
10.18 Approval of application for change of beneficiary heretofore made.

[[Page 505]]

10.20 ``Demand for payment'' certification.
10.22 Payment to estate of decedent.
10.24 Payment of death claim on lost, destroyed or mutilated adjusted 
          service certificate with bond.
10.25 Payment of death claim on adjusted service certificate without 
          bond.
10.27 Definitions.
10.28 Proof of death evidence.
10.29 Claims for benefits because of elimination of preferred dependent.
10.30 Proof of remarriage.
10.31 Dependency of mother or father.
10.32 Evidence of dependency.
10.33 Determination of dependency.
10.34 Proof of age of dependent mother or father.
10.35 Claim of mother entitled by reason of unmarried status.
10.36 Proof of marital cohabitation under section 602 or section 312 of 
          the Act.
10.37 Claim of widow not living with veteran at time of veteran's death.
10.38 Proof of age of veteran's child.
10.39 Mental or physical defect of child.
10.40 Payment on account of minor child.
10.41 Definition of ``child''.
10.42 Claim of child other than legitimate child.
10.43 Claim by guardian of child of veteran.
10.44 Evidence required to support claim of mother or father.
10.45 Definition of ``widow''.
10.46 Authentication of statements supporting claims.
10.47 Use of prescribed forms.

                                Payments

10.50 Section 601 and section 603 payments made on first day of calendar 
          quarter.
10.51 Payments to minor child.
10.52 Duplication of payments prohibited.
10.53 Payment on duplicate certificate.

    Authority: 72 Stat. 1114; 38 U.S.C. 501. Rights and benefits are 
continued in effect by sec. 12(b), 72 Stat. 1264, 38 U.S.C. note prec. 
Part 1.

    Source: 13 FR 7122, Nov. 27, 1948, unless otherwise noted.

                     Adjusted Compensation; General



Sec. 10.0  Adjusted service pay entitlements.

    A veteran entitled to adjusted service pay is one whose adjusted 
service credit does not amount to more than $50 as distinguished from a 
veteran whose adjusted service credit exceeds $50 and who therefore is 
entitled to an adjusted service certificate.



Sec. 10.1  Issuance of duplicate adjusted service certificate without 
bond.

    If the veteran named in an adjusted service certificate issued 
pursuant to the provisions of section 501 of the World War Adjusted 
Compensation Act, without bad faith, has not received such certificate, 
or if prior to receipt by the veteran such certificate was destroyed 
wholly or in part or was so defaced as to impair its value, or, if after 
delivery it was partially destroyed or defaced so as to impair its value 
but can be identified to the satisfaction of the Secretary, a duplicate 
adjusted service certificate will be issued upon application and a bond 
of indemnity will not be required: Provided, That if the adjusted 
service certificate was destroyed in part or so defaced as to impair its 
value, the veteran or person entitled to payment thereon will be 
required to surrender to the Department of Veterans Affairs the original 
certificate or so much thereof as may remain.



Sec. 10.2  Evidence required of loss, destruction or mutilation of 
adjusted service certificate.

    The veteran named in an adjusted service certificate issued pursuant 
to the provisions of section 501 of the World War Adjusted Compensation 
Act, or the person entitled to payment thereon will be required to 
furnish evidence of the nonreceipt of the adjusted service certificate, 
or of its receipt in a mutilated or defaced condition, or of the loss or 
destruction in whole or in part of defacement of the certificate after 
its receipt, as the case may be. The evidence must be sufficient to 
establish to the satisfaction of the Secretary that neither the veteran 
nor the person entitled to payment thereon, or any person for or on 
their behalf, received the adjusted service certificate, or that at the 
time of its receipt it was mutilated or defaced to such an extent as to 
impair its value, or that after receipt of the certificate it was lost 
or destroyed in whole or in part or defaced, but without bad faith on 
the part of the veteran, and that every effort has been made to recover 
the lost certificate. Unless determination is otherwise made by the 
Secretary the evidence must be in the form of a written statement sworn 
to by the veteran

[[Page 506]]

or person entitled to payment thereon and witnessed by at least two 
persons who shall state, under oath that they personally know the 
affiant, that they have read his or her statement and that it is true to 
the best of their knowledge and belief. These statements should be 
supplemented by affidavits of any persons having personal knowledge of 
additional facts and circumstances concerning the matter, and the 
Secretary may require any additional evidence deemed necessary.



Sec. 10.3  Issuance of duplicate adjusted service certificate with bond.

    An indemnity bond will be required as a prerequisite to the issuance 
of a duplicate adjusted service certificate in all cases where the 
certificate was lost after receipt by the veteran, or after receipt by 
the veteran was defaced or mutilated and cannot be identified to the 
satisfaction of the Secretary, provided the loss, defacement, or 
mutilation was without bad faith on the part of the veteran or the 
person entitled to payment thereon. The bond must be in the manner and 
form prescribed by the Department of Veterans Affairs and for an amount 
equal to the face value of the certificate, with surety or sureties 
residents of the United States and satisfactory to the Secretary, with 
condition to indemnify and save harmless the United States from any 
claim on account of such certificate. If the certificate was defaced or 
mutilated the veteran or person entitled to payment thereon will be 
required to surrender to the Department of Veterans Affairs the 
certificate or so much thereof as may remain.



Sec. 10.4  Loss, destruction, or mutilation of adjusted service 
certificate while in possession of Department of Veterans Affairs.

    A new adjusted service certificate will be issued without bond in 
lieu of the certificate which has been lost or destroyed, or has been 
mutilated, defaced or damaged so as to impair its value, while in 
possession of the Department of Veterans Affairs.



Sec. 10.15  Designation of more than one beneficiary under an adjusted 
service certificate.

    A veteran to whom an adjusted service certificate has been issued 
pursuant to the provisions of section 501 of the World War Adjusted 
Compensation Act may name more than one beneficiary to receive the 
proceeds of his adjusted service certificate, and may from time to time 
with the approval of the Secretary change such beneficiaries. The 
designated beneficiaries shall share equally unless otherwise specified 
by the veteran. Wherever the word beneficiary appears in the law and 
Department of Veterans Affairs regulations it shall be interpreted to 
include beneficiaries.



Sec. 10.16  Conditions requisite for change in designation of beneficiary.

    A change of beneficiary of an adjusted service certificate to be 
valid must be made:
    (a) By notice signed by the veteran or his duly authorized agent, 
and delivered or properly mailed to the Department of Veterans Affairs 
during the lifetime of the veteran. Such change shall not take effect 
until approved by the Secretary and after such approval the change shall 
be deemed to have been made as of the date the veteran signed said 
written notice and change, whether the veteran be living at the time of 
said approval or not.
    (b) Or by last will and testament of the veteran, duly probated. 
Such change shall not be effective until received by the Department of 
Veterans Affairs and approved by the Secretary and after such approval 
the change shall be deemed to have been made as of the date of death of 
the veteran: Provided, That a change of beneficiary signed subsequent to 
the date upon which the will was executed and delivered in accordance 
with paragraph (a) of this section shall if approved in accordance with 
regulations take precedence over the designation by will.

Provided, however, That any payment made to a beneficiary of record, 
before notice of change of beneficiary has been received in the 
Department of Veterans Affairs and approved by the Secretary, shall not 
be made again to the changed beneficiary.

[[Page 507]]



Sec. 10.17  Designation of beneficiary subsequent to cancellation of 
previous designation.

    The designation of a beneficiary made subsequent to the cancellation 
of a previous designation of beneficiary, shall be considered as a 
change in beneficiary, and shall be subject to the approval of the 
Secretary and subject to the conditions and requirements respecting 
change in beneficiary as outlined in Sec. 10.16.



Sec. 10.18  Approval of application for change of beneficiary 
heretofore made.

    Any application for a change of beneficiary heretofore made may be 
approved if it meets the requirements set out in Sec. Sec. 10.16 and 
10.17.



Sec. 10.20  ``Demand for payment'' certification.

    Certification to the execution of demand for payment forms appearing 
on the reverse side of adjusted service certificates issued pursuant to 
the World War Adjusted Compensation Act, as amended, is required in 
accordance with instructions printed on said forms. Such certification 
if made in the United States or possessions will be accepted if made by 
and bearing the official seal of a United States postmaster, an 
executive officer of an incorporated bank or trust company, notary 
public, or any person who is legally authorized to administer oaths in a 
State, Territory, District of Columbia or in a Federal judicial district 
of the United States. If the demand for payment be executed in a foreign 
country, the same shall be certified by an American consul, a recognized 
representative of an American embassy or legation or by a person 
authorized to administer oaths under the laws of the place where 
execution of demand is made, provided there be attached to the 
certificate of such latter officer a proper certification by an 
accredited official of the State Department of the United States that 
the officer certifying to the execution of the demand for payment was 
authorized to administer oaths in the place where certification was 
made.



Sec. 10.22  Payment to estate of decedent.

    Wherever the face value of an adjusted service certificate, issued 
pursuant to the World War Adjusted Compensation Act, as amended, becomes 
payable to the estate of any decedent and the amount thereof is not over 
$500 and an administrator has not been or is not to be appointed, such 
amount will be paid to such person or persons as would, under the laws 
of the State of residence of the decedent, be entitled to his personal 
property in case of intestacy.



Sec. 10.24  Payment of death claim on lost, destroyed or mutilated 
adjusted service certificate with bond.

    If the veteran named in an adjusted service certificate, issued 
pursuant to the provisions of section 501 of the World War Adjusted 
Compensation Act, is deceased, and if, after receipt by the veteran, the 
adjusted service certificate was lost, destroyed, or so defaced as to 
impair its value and cannot be identified to the satisfaction of the 
Secretary of Veterans Affairs, the person entitled to payment thereon 
will be required to furnish an indemnity bond in the manner and form 
prescribed by the Department of Veterans Affairs and for an amount equal 
to the face value of the certificate, with surety or sureties residents 
of the United States and satisfactory to the Secretary of Veterans 
Affairs with condition to indemnify and save harmless the United States 
from any claim on account of such certificate, before payment will be 
made of the proceeds of the certificate and a duplicate adjusted service 
certificate will not be issued.



Sec. 10.25  Payment of death claim on adjusted service certificate 
without bond.

    If the veteran named in the adjusted service certificate, issued 
pursuant to the provisions of section 501 of the World War Adjusted 
Compensation Act, is deceased, and if the certificate was lost or 
destroyed wholly or in part or was so defaced as to impair its value 
prior to receipt by the veteran, or was partially destroyed or defaced 
after receipt by the veteran, but can be identified to the satisfaction 
of the Secretary of Veterans Affairs, payment will be

[[Page 508]]

made of the proceeds of the certificate, a bond of indemnity will not be 
required, and a duplicate adjusted service certificate will not be 
issued: Provided, The person entitled to payment thereon surrenders the 
defaced or mutilated certificate or so much thereof as may remain.



Sec. 10.27  Definitions.

    For the purpose of Sec. Sec. 10.28 to 10.47, the word Act as used 
herein refers to the World War Adjusted Compensation Act, as amended; 
the word Veteran refers to that term as defined in section 2 of title I 
of said Act; the word Director refers to the Secretary of Veterans 
Affairs.



Sec. 10.28  Proof of death evidence.

    Evidence required in establishing proof of death under the act, as 
amended, shall conform with the requirements set forth in the 
regulations of the Department of Veterans Affairs.



Sec. 10.29  Claims for benefits because of elimination of preferred 
dependent.

    A dependent, in subsequent position in the order of preference as 
defined in section 601 of title VI of the Act, as amended, who makes 
claim for the benefits of the Act in consequence of the death of a 
dependent who made application and who stood in preferential position as 
defined in section 601 of the act, as amended, shall be required to 
furnish, in support of such claim, proof of death of said dependent. 
Proof of death of said dependent shall be in accordance with the 
requirements for proof of death as outlined in the regulations of 
Department of Veterans Affairs. A dependent who makes claim for the 
benefits of the act because of remarriage of a widow who did not make 
and file application before remarriage shall be required to furnish in 
support of such claim proof of remarriage of said widow. Proof of 
remarriage of said widow shall be in accordance with the requirements 
for proof of marriage as outlined in regulations of the Department of 
Veterans Affairs.



Sec. 10.30  Proof of remarriage.

    A dependent who is receiving payments under section 601 of title VI 
of the Act, as amended, and who remarries after making and filing 
application, shall be required to furnish proof of remarriage in 
accordance with the requirements for proof of remarriage as outlined in 
regulations of the Department of Veterans Affairs.



Sec. 10.31  Dependency of mother or father.

    Claims of a mother or father for the benefits to which either may be 
entitled under the World War Adjusted Compensation Act, as amended, 
shall be supported by a statement of fact of dependency made under oath 
by the claimant and witnessed by two persons.



Sec. 10.32  Evidence of dependency.

    Evidence of a whole or entire dependency shall not be required. The 
mother or father shall be considered dependent for the purposes of the 
act when it is established as a fact that the mother or father of a 
deceased veteran did not have sufficient means from all sources for a 
reasonable livelihood at the time of the death of the veteran or at any 
time thereafter and on or before January 2, 1935. In those cases where 
because of continued and unexplained absence for seven years the veteran 
is declared deceased under section 312(a) of the Act as amended May 29, 
1928, the mother or father shall be considered dependent when it is 
established that the mother or father did not have sufficient means from 
all sources for a reasonable livelihood at the beginning of such 7-year 
period or at any time thereafter and before the expiration of such 
period.



Sec. 10.33  Determination of dependency.

    A determination of the existence of the alleged dependency will be 
made upon consideration of all facts relating to dependency, and upon 
such investigation of such facts as may be warranted. The following 
facts as existing at the time of the death of the veteran, or at any 
time thereafter and on or before January 2, 1935, or where it is 
established that the veteran is deceased as provided in section 312(a), 
at the beginning of such 7-year period or at any time thereafter and 
before the expiration of such period, shall be taken into consideration 
in determining dependency in a given case:

[[Page 509]]

    (a) Claimant's age.
    (b) Amount contributed to claimant by deceased veteran.
    (c) Value of all real and personal property owned by claimant.
    (d) Total monthly expenses of the claimant and total monthly income.
    (e) The fact that claimant did or did not receive an allotment of 
pay or allowance during the veteran's military or naval service.
    (f) Incapability of self-support by reason of mental or physical 
defect.
    (g) Any other fact or facts pertinent to the determination of 
dependency.



Sec. 10.34  Proof of age of dependent mother or father.

    The mother or father of a veteran to be entitled to the presumption 
of dependency within the meaning of section 602(c) or section 312(c) of 
the Act, as amended, shall be required to submit proof of age in 
accordance with the requirements as set forth in regulations of the 
Department of Veterans Affairs.



Sec. 10.35  Claim of mother entitled by reason of unmarried status.

    Claim of a mother for the benefits to which she may be entitled by 
reason of her unmarried status as outlined in section 202(c) or section 
312(c)3 of the Act, as amended, shall be supported by a statement of 
fact, under oath, of such status, together with one of the following:
    (a) Certified copy of public record of death of the husband.
    (b) Certified copy of court record of divorce decree.



Sec. 10.36  Proof of marital cohabitation under section 602 or section 
312 of the Act.

    In order to prove marital cohabitation within the meaning of that 
term as used in section 602(a) or section 312(c)1 of the Act, as 
amended, claimant shall be required to establish:
    (a) A valid marriage, such marriage to be shown by the best evidence 
obtainable in accordance with the provisions of regulations of the 
Department of Veterans Affairs.
    (b) The fact of living together as man and wife, with such fact to 
be established by:
    (1) Statement of the widow or widower showing that he or she and the 
veteran lived together as man and wife and also showing the place or 
places of residence during such marital cohabitation and the approximate 
time of such residence; or
    (2) Statement of two competent persons showing that they personally 
knew the claimant and veteran and that they had personal knowledge that 
said claimant and veteran lived together as man and wife and were 
recognized as such.
    (c) The fact that the marital status existed at the time of the 
death of the veteran or where it is established that the veteran is 
deceased, as provided in section 312(a)1 of the Act, as amended, at the 
beginning of such 7-year period, such fact to be established by:
    (1) Statement by claimant that he or she and the veteran had not 
been divorced and that there had been no annulment of the marriage.
    (2) Statement of claimant that he or she was not remarried at the 
time of making application.
    (3) Statement of two competent persons showing that they personally 
knew the claimant and the veteran; that they personally knew of the 
marriage relationship between claimant and veteran; that to the best of 
their knowledge and belief there had been no divorce and no annulment of 
the marriage and that claimant was not remarried at the time of making 
and filing application.



Sec. 10.37  Claim of widow not living with veteran at time of veteran's 
death.

    If a veteran and widow were not living together at the time of the 
death of the veteran the widow will be required to establish:
    (a) That the living apart was not due to her willful act, and
    (b) Actual dependency upon the veteran at the time of his death or 
at any time thereafter and before January 2, 1935.
    (1) A determination of what shall constitute a willful act, as used 
in section 602(a) of the Act, as amended, will be made upon 
consideration of all facts relating to such act and upon such 
investigation of such facts as may be deemed warranted. For the purpose 
of

[[Page 510]]

this section, the fact that a veteran lived apart from the widow because 
of any act by the widow involving desertion or moral turpitude will be 
construed as the willful act of the widow. Cause of separation and time 
and duration of separation at the time of the death of the veteran shall 
be taken into consideration in determining a willful act.
    (2) A determination of the existence of actual dependency will be 
made under the criteria set forth in Sec. Sec. 10.32 and 10.33 with 
respect to dependency of a mother or father.



Sec. 10.38  Proof of age of veteran's child.

    A child of a veteran shall be required to submit proof of age in 
accordance with the requirements set forth in the regulations of the 
Department of Veterans Affairs.



Sec. 10.39  Mental or physical defect of child.

    If claim is made under section 602(b), (2), of title IV of the Act 
as amended, alleging that a child over 18 years of age was incapable of 
self-support at the death of the veteran or that he became incapable of 
self-support subsequent to the death of the veteran but on or before 
January 2, 1935, or that he was incapable of self-support at the 
disappearance of the veteran or became incapable of self-support after 
the disappearance of the veteran and before the expiration of the period 
of seven years mentioned in section 312(c), (2), of the Act, it will be 
necessary to furnish evidence as to the mental or physical condition of 
the child at the time it is alleged he became incapable of self-support.
    (a) Where incapability of self-support by reason of the mental 
defect of the child is alleged, the following evidence will be required:
    (1) Certified copy of court order or decree declaring the child to 
be mentally incompetent; or
    (2) A report of a licensed physician setting forth all of the facts 
as to the child's mental condition; or
    (3) The affidavit of the person having custody and control of the 
child, setting forth all of the available information as to the child's 
mental condition. The affidavit must be substantiated by two competent 
disinterested persons who shall state that they personally know the 
child, that they have read the affidavit made by the person having 
custody and control of the child, and that the information therein set 
forth is true to the best of their knowledge and belief.
    (b) Where incapability of self-support by reason of physical defect 
of the child is alleged, the following evidence will be required:
    (1) Report of a licensed physician setting forth all of the facts as 
to the child's physical condition; and
    (2) Affidavit of the child regarding his physical condition and the 
affidavits of two competent disinterested persons, who shall state that 
they personally know the claimant, that they have read his affidavit and 
that the same is true to the best of their knowledge and belief.



Sec. 10.40  Payment on account of minor child.

    Payments to a minor child shall be made to the legally constituted 
guardian, curator or conservator, or to the person found by the director 
to be otherwise legally vested with the care of the child.



Sec. 10.41  Definition of ``child''.

    The term child as used in the regulations in this part includes:
    (a) A legitimate child;
    (b) A child legally adopted;
    (c) A stepchild if a member of the veteran's household at the time 
of the death of the veteran, or
    (d) An illegitimate child but as to the father only if acknowledged 
in writing signed by him, or if he has been judicially ordered or 
decreed to contribute to such child's support or has been judicially 
decreed to be the putative father of such child.



Sec. 10.42  Claim of child other than legitimate child.

    A claim of a child legally adopted by the veteran upon whose service 
the claim is based shall be supported by a certified copy of the court 
record of such adoption. A claim of a stepchild of a veteran shall be 
supported by an affidavit of his or her legal guardian, stating that at 
the time of the death of the

[[Page 511]]

veteran said stepchild was a member of the veteran's household. The 
fact, as stated in such affidavit, and the signature of the guardian 
thereto, shall be attested by the court having jurisdiction over the 
guardian, or by two competent persons to whom the child was personally 
known at the time of the death of the veteran. A claim of an 
illegitimate child of a veteran upon whose service claim is based, shall 
be supported by:
    (a) A statement by the veteran in writing acknowledging his 
parentage of such child; or
    (b) Certified copy of order or decree of a court ordering the 
veteran to contribute to such child's support; or
    (c) Certified copy of a decree of a court holding the veteran to be 
the putative father of such child.



Sec. 10.43  Claim by guardian of child of veteran.

    A claim made by a legal guardian on behalf of his or her ward, a 
child of a veteran, shall be supported by an affidavit of said guardian, 
in the capacity of guardian, setting forth the names, ages, and 
addresses of all living children of the deceased veteran, or, if there 
be no living child other than the claimant child, statement of that fact 
shall be made. The signature of the guardian to such required affidavit 
shall be attested by the court having jurisdiction of the guardian and 
ward, or by two competent persons to whom the child is personally known.



Sec. 10.44  Evidence required to support claim of mother or father.

    The term mother and father as referred to in the order of preference 
as outlined in section 601 of the Act, as amended, includes stepmothers, 
stepfathers, mothers and fathers through adoption, and persons who, for 
a period of not less than one year, have stood in the place of a mother 
or father to the veteran at any time prior to the beginning of his 
service. In addition to the evidence of dependency required from a 
natural mother or father, a claim of a stepmother or stepfather shall be 
supported by evidence of marriage to the natural parent of the veteran. 
This evidence shall be in accordance with the requirements of proof of 
marriage as set forth in regulations of the Department of Veterans 
Affairs. A claim of a mother or father through adoption shall be 
supported by a certified copy of the court record of such adoption. A 
claim by a person who claims to have stood in the place of a mother or 
father shall be supported by evidence of such relationship satisfactory 
to the Department of Veterans Affairs. Such evidence shall comprise:
    (a) An affidavit of the claimant containing a complete detailed 
statement of the alleged relationship and
    (b) Affidavits of two competent witnesses to whom claimant was 
personally known at the time of the death of the veteran, said witnesses 
certifying to the truth of the statement as made by the claimant.



Sec. 10.45  Definition of ``widow''.

    The term widow as used in the regulations in this part includes 
widower.



Sec. 10.46  Authentication of statements supporting claims.

    All statements, except those of licensed examining physicians under 
Sec. 10.39 (a)(2) and (b)(1), required by Sec. Sec. 10.28 to 10.44 
shall be subscribed and sworn to before an officer vested with authority 
to administer oaths, in the place where such statements are made. 
Signatures executed in foreign countries or places shall be certified by 
an American consul, a recognized representative of an American consul, a 
recognized representative of an American embassy or legation or by a 
person authorized to administer oaths under the laws of the place where 
such statements are made, provided there be attached to the certificate 
of such latter officer a proper certification by an accredited official 
of the State Department of the United States that the officer certifying 
to the execution of the signature was authorized to administer oaths in 
the place where certification was made.



Sec. 10.47  Use of prescribed forms.

    Statements required by the regulations in this part should be 
submitted on forms provided by the Department of Veterans Affairs, when 
conveniently available.

[[Page 512]]

                                Payments



Sec. 10.50  Section 601 and section 603 payments made on first day of 
calendar quarter.

    Cash payments and the first installment of installment payments 
authorized in sections 601 and 603, respectively of title VI of the 
World War Adjusted Compensation Act, as amended, will be made as of the 
first day of the calendar quarter following the finding by the director 
that the applicant is a dependent entitled to the benefits of the act, 
but in no case shall any such payments be made before March 1, 1925: 
Provided, however, That payments authorized by section 608 of title VI 
of the Act, as amended, shall be paid in a lump sum to the preferred 
dependent without reference to payments under section 603 of title VI of 
the Act, as amended.



Sec. 10.51  Payments to minor child.

    Payments to minor child through legal guardian, natural guardian, or 
self. (See Sec. 10.40.)



Sec. 10.52  Duplication of payments prohibited.

    Duplication of payments shall not be made in case of change of 
beneficiary. (See Sec. 10.16.)



Sec. 10.53  Payment on duplicate certificate.

    Issuance of duplicate adjusted service certificates and payment of 
claims based upon lost, destroyed, or mutilated, adjusted service 
certificates. (See Sec. Sec. 10.1 to 10.4, 10.24 and 10.25, 
respectively.)



PART 11_LOANS BY BANKS ON AND PAYMENT OF ADJUSTED SERVICE CERTIFICATES
--Table of Contents




Loans by Banks on Adjusted Service Certificates Under Section 502 of the 
                   World War Adjusted Compensation Act

Sec.
11.75 Certificates.
11.76 To whom loan may be made.
11.77 By whom loans may be made.
11.80 Sale or discount of note by holding bank.
11.81 Rediscounts with Federal Reserve Banks.
11.83 Additional loans by reason of 50 percent loan value.
11.84 Redemption because of veteran's death.
11.85 Condition requisite for redemption.

  Disposition of Notes Secured by Adjusted Certificates Redeemed from 
  Banks by the Department of Veterans Affairs Under Section 502 of the 
   World War Adjusted Compensation Act, as Amended (Pub. L. 120, 68th 
                                 Cong.)

11.88 Cancellation of note.
11.89 Notification of veteran.
11.91 Repayment of loans.
11.93 Failure to redeem.

 Department of Veterans Affairs Loans on Adjusted Service Certificates 
Under Section 502 of the World War Adjusted Compensation Act, as Amended

11.96 By whom loans may be made.
11.99 Identification.
11.100 Form of note.
11.102 Term of note.
11.104 Disposition of notes and certificates.

   Application for Payment of Adjusted Service Certificate Under the 
    Adjusted Compensation Payment Act, 1936 (Pub. L. 425, 74th Cong.)

11.109 Settlement of unmatured adjusted service certificates.
11.110 Who may make application for final settlement.
11.111 Form of application.
11.114 Identification.
11.115 Where to file application.
11.116 Death of veteran before final settlement.
11.117 Missing applications.

Application for Payment of Adjusted Service Certificate Under the World 
   War Adjusted Compensation Act, as Amended (Pub. L. 120, 68th Cong.)

11.125 Settlement of matured adjusted service certificates.
11.126 Form of application.
11.127 Identification.
11.128 Veteran dies without having filed application for final 
          settlement.
11.129 Form of application for payment of deceased veteran's 
          certificate.
11.130 Where to file applications.

    Authority: 72 Stat. 1114; 38 U.S.C. 501. Rights and benefits are 
continued in effect by sec. 12(b), 72 Stat. 1264, 38 U.S.C. note prec. 
Part 1, unless otherwise noted.

[[Page 513]]

Loans by Banks on Adjusted Service Certificates Under Section 502 of the 
                   World War Adjusted Compensation Act

    Source: 13 FR 7125, Nov. 27, 1948, unless otherwise noted.



Sec. 11.75  Certificates.

    Adjusted service certificates are dated as of the 1st day of the 
month in which the applications were filed, but no certificates are 
dated prior to January 1, 1925. Loans on the security of such 
certificates may be made at any time after the date of the certificate. 
The fact that a certificate is stamped or marked ``duplicate'' does not 
destroy its value as security for a loan.



Sec. 11.76  To whom loan may be made.

    Only the veteran named in the certificate can lawfully obtain a loan 
on his adjusted service certificate and neither the beneficiary nor any 
other person than the veteran has any rights in this respect. The person 
to whom the loan is made must be known to the lending bank to be the 
veteran named in the certificate securing such note. The consent of the 
beneficiary is not required, the act providing that a loan on the 
security of the certificate may be made ``with or without the consent of 
the beneficiary thereof.'' Loans may be made to veterans adjudged 
incompetent only through the guardians of such veterans and pursuant to 
specific order of the court having jurisdiction. Certified copy of court 
order must be submitted if note be presented for redemption by the 
Department of Veterans Affairs.



Sec. 11.77  By whom loans may be made.

    Any national bank or any bank or trust company incorporated under 
the laws of any State, Territory, possession, or the District of 
Columbia, hereinafter referred to as any bank, is authorized to loan to 
any veteran upon his promissory note secured by his Adjusted Service 
Certificate any amount not in excess of the loan value of the 
certificate at the date the loan is made. Each certificate contains on 
its face a table for determining the loan value of the certificate, but 
it is provided by amendment to the World War Adjusted Compensation Act 
dated February 27, 1931, that the loan value of any certificate shall at 
no time be less than 50 percent of the face value. Upon the making of 
such loan, the lending bank shall promptly notify the Department of 
Veterans Affairs of the name of the veteran, the A-number shown 
immediately after the name, the number of the certificate, the amount, 
the rate of interest, and date of loan: However, this requirement may be 
waived by the Secretary of Veterans Affairs.



Sec. 11.80  Sale or discount of note by holding bank.

    Any bank holding a note secured by an Adjusted Service Certificate 
may sell the note to any bank authorized to make a loan to a veteran and 
deliver the certificate to such bank. In case a note secured by an 
Adjusted Service Certificate is sold or transferred, the bank selling, 
discounting or rediscounting the note is required by law to notify the 
veteran promptly by mail at his last known post office address. No 
Adjusted Service Certificate is negotiable or assignable, or may serve 
as security for a loan, except as provided in section 502 of the World 
War Adjusted Compensation Act, as amended. Any negotiation, assignment 
or loan made in violation of section 502 of the World War Adjusted 
Compensation Act is void. In case of sale, discount or rediscount by the 
bank which made the loan, the note or notes should be accompanied by the 
affidavit required by Sec. 11.85.



Sec. 11.81  Rediscounts with Federal Reserve Banks.

    Upon the endorsement of any bank, which shall be deemed a waiver of 
demand, notice and protest by such bank as to its own endorsement 
exclusively, and subject to regulations to be prescribed by the Federal 
Reserve Board, any such note secured by an Adjusted Service Certificate 
and held by a bank is made eligible for discount or rediscount by the 
Federal reserve bank of the Federal reserve district in which such bank 
is located, whether or not the bank offering the note for discount or 
rediscount is a member of the Federal Reserve System and whether or

[[Page 514]]

not it acquired the note in the first instance from the veteran or 
acquired it by transfer upon the endorsement of any other bank: 
Provided, That at the time of discount or rediscount such note has a 
maturity not in excess of 9 months, exclusive of days of grace, and 
complies in all other respects with the provisions of the law, the 
regulations of the Federal Reserve Board and the regulations in this 
part.



Sec. 11.83  Additional loans by reason of 50 percent loan value.

    (a) It will be the policy of the Department of Veterans Affairs to 
redeem all loans made in accordance with the law and regulations made 
pursuant thereto, when such loans are made in good faith to the veteran 
to whom the certificate was issued. If, while his certificate is held by 
a bank as security for a loan, the veteran applies for the increased 
loan value authorized by the amendment to the World War Adjusted 
Compensation Act dated February 27, 1931, whether or not the loan has 
matured, the veteran and the bank will be informed fully of the 
provisions of this section and that the bank may make the loan for the 
additional amount or, upon request of the veteran, may send the note and 
certificate to the Secretary of Veterans' Affairs. The Secretary shall, 
if the loan was legally made, accept such certificate and note, and pay 
to the bank in full satisfaction of its claim the amount of the unpaid 
principal due it and the unpaid interest at the rate authorized by the 
World War Adjusted Compensation Act, as amended, up to the date of the 
check issued to the bank. If the veteran has not filed application for 
final settlement of his adjusted service certificate under the 
provisions of the Adjusted Compensation Payment Act, 1936, and demand is 
made upon the bank to present the note and certificate for redemption 
prior to the maturity date of the loan and during the lifetime of the 
veteran, interest will be payable up to the date the check is issued to 
the bank, or, if demanded by the bank, up to the maturity date of the 
loan.
    (b) If, however, an application for final settlement is filed and 
the bank is notified to present the note and certificate to the 
Secretary and does so within 15 days after the mailing of such notice 
interest will be payable to the date the check is issued to the bank. If 
the bank fails to forward the note and certificate within 15 days after 
the mailing of the notice, interest shall be paid only up to the 
fifteenth day after the mailing of such notice.



Sec. 11.84  Redemption because of veteran's death.

    If the veteran dies before the maturity of the loan, the amount of 
the unpaid principal and the unpaid interest shall be immediately due 
and payable. In such case, or if the veteran dies on the day the loan 
matures or within six months thereafter, the bank holding the note and 
certificate shall, upon notice of the death, present them to the 
Secretary, who shall pay to the bank, in full satisfaction of its claim 
the amount of the unpaid principal and unpaid interest, at the rate 
authorized by the World War Adjusted Compensation Act, as amended, 
accrued up to the date of the check issued to the bank; except that if, 
prior to the payment, the bank is notified of the death by the Secretary 
and fails to present the certificate and note to the Secretary within 15 
days after the notice such interest shall be paid only up to the 
fifteenth day after such notice.



Sec. 11.85  Condition requisite for redemption.

    In order to be eligible for redemption by the Department of Veterans 
Affairs, the note and certificate must be accompanied by an affidavit of 
a duly authorized officer (the capacity in which the officer serves must 
be shown) of the lending bank showing that the said bank has not charged 
or collected, or attempted to charge or collect, directly or indirectly, 
any fee or other compensation in respect of the loan, or any other loan 
made by the bank under the provisions of section 502 of the World War 
Adjusted Compensation Act, except the rate of interest specified in the 
section of the Act cited; that the person who obtained the loan is known 
to the lending bank to be the person named in the Adjusted Service 
Certificate; and that notice required by Sec. 11.77 was promptly given. 
In case the note was sold or discounted by the lending

[[Page 515]]

bank, there should be incorporated in the affidavit a statement that the 
veteran was notified promptly of the transfer by mail to his last known 
address. In case the note was resold or rediscounted by any other bank, 
affidavit shall be made by a duly authorized officer of such bank that 
proper notice of such resale or rediscount was promptly mailed to the 
veteran at his last known address. The proper execution of the 
appropriate affidavit on Form 6615 or 6615a will be considered as a 
compliance with the requirements of this section. A single affidavit 
setting forth the full particulars may be accepted to cover any number 
of veterans' notes submitted for redemption at one time. The affidavit 
must be executed before a judge of the United States court, a United 
States commissioner, a United States district attorney, a United States 
marshal, a collector of internal revenue, a collector of customs, a 
United States postmaster, a clerk of court of record under the seal of 
the court, an executive officer of an incorporated bank or trust 
company, under his official designation and the seal of the bank or 
trust company, or a notary public under his seal, or a diplomatic or 
consular officer of the United States, under his official seal.

  Disposition of Notes Secured by Adjusted Certificates Redeemed from 
  Banks by the Department of Veterans Affairs Under Section 502 of the 
   World War Adjusted Compensation Act, as Amended (Pub. L. 120, 68th 
                                 Cong.)

    Source: 13 FR 7126, Nov. 27, 1948, unless otherwise noted.



Sec. 11.88  Cancellation of note.

    When a veteran's note is redeemed by the Department of Veterans 
Affairs, the note will be canceled and both the note and certificate 
will be retained in the files of the Department of Veterans Affairs 
until such time as settlement is made.



Sec. 11.89  Notification of veteran.

    When a note is redeemed notification will be sent to the veteran at 
his last known address, advising him that the Department of Veterans 
Affairs holds his note, and outlining the conditions governing 
repayment.



Sec. 11.91  Repayment of loans.

    Should the veteran so desire, he may repay the amount due on his 
note in full or in installments.



Sec. 11.93  Failure to redeem.

    (a) If the veteran fails to redeem his certificate before its 
maturity there will be deducted from the face value of the certificate 
the amount of the unpaid principal of the note of the veteran and the 
unpaid interest thereon through September 30, 1931.
    (b) If the veteran failed to redeem his certificate and died prior 
to January 27, 1936, there will be deducted from the face value of the 
certificate the amount of the unpaid principal of the veteran's note and 
the unpaid interest thereon to the date of his death. If the veteran 
died on or after January 27, 1936, the amount to be deducted when making 
settlement will be the unpaid principal of the veteran's note and the 
unpaid interest thereon through September 30, 1931.

 Department of Veterans Affairs Loans on Adjusted Service Certificates 
Under Section 502 of the World War Adjusted Compensation Act, as Amended

    Source: 13 FR 7126, Nov. 27, 1948, unless otherwise noted.



Sec. 11.96  By whom loans may be made.

    Loans will be made by the Department of Veterans Affairs, 
Washington, DC, to any veteran, upon his promissory note secured by his 
adjusted service certificate, in any amount in even dollars not less 
than $10 and not in excess of the loan value of the certificate at the 
date the loan is made. Each certificate contains on its face a table for 
determining the loan value of the certificate but at no time is the loan 
value less than fifty per centum of the face value.



Sec. 11.99  Identification.

    Before a loan is made on an adjusted service certificate, the person 
applying therefor will be identified as the person

[[Page 516]]

entitled to the certificate offered as security. Such identification 
will be made in accordance with Sec. 11.114.

[19 FR 5086, Aug. 12, 1954]



Sec. 11.100  Form of note.

    The form of note used in making loans secured by adjusted service 
certificates shall follow Form 1185.



Sec. 11.102  Term of note.

    All loans will be for a period of one year and if not paid will be 
automatically extended from year to year for periods of one year in the 
amount of the principal plus interest accrued to the end of the 
immediately preceding expired loan year, which total amount shall 
automatically become a new principal each year provided a loan may be 
paid off at any time by the payment of principal and accrued interest, 
but in no event will interest accruing after September 30, 1931, be 
deducted in final settlement of a certificate except as provided in 
Sec. 11.93(b).



Sec. 11.104  Disposition of notes and certificates.

    All notes and certificates shall be held in the custody of the 
Department of Veterans Affairs, Washington, DC 20420.

[13 FR 7126, Nov. 27, 1948, as amended at 54 FR 34982, Aug. 23, 1989]

   Application for Payment of Adjusted Service Certificate Under the 
    Adjusted Compensation Payment Act, 1936 (Pub. L. 425, 74th Cong.)



Sec. 11.109  Settlement of unmatured adjusted service certificates.

    Where an application for final settlement of an adjusted service 
certificate is received in the Department of Veterans Affairs prior to 
the maturity date of the certificate, payment will be made under the 
terms of the Adjusted Compensation Payment Act, 1936. This act provides 
for payment of the amount due on the certificate, after deducting any 
unpaid loans with interest through September 30, 1931, in adjusted 
service bonds. These bonds will be issued by the Treasury Department in 
denominations of $50, in the name of the veteran only, and will bear 
interest at the rate of 3 percent per annum from June 15, 1936, to June 
15, 1945. Any excess amount not sufficient to purchase a $50 bond will 
be paid by check.

[19 FR 5087, Aug. 12, 1954]



Sec. 11.110  Who may make application for final settlement.

    A mentally competent veteran to whom an adjusted service certificate 
has been issued.
    (a) A legally appointed guardian of an incompetent veteran. An 
application submitted by a legally appointed guardian must be 
accompanied by letters of guardianship showing the fiduciary 
relationship, provided such papers are not already on file in the 
Department of Veterans Affairs.
    (b) A representative of a physically incapacitated veteran. Where 
application is made by a representative of a physically incapacitated 
veteran, the representative must attach a statement describing the 
veteran's incapacity. The correctness of such statement must be 
certified by an officer as designated in Sec. 11.114.
    (c) A superintendent or other bonded officer designated by the 
Secretary of the Interior to receive funds under the provision of Pub. 
L. No. 373, 72d Congress, may make application for an incompetent adult 
or minor Indian who is a recognized ward of the Government. The 
application must be accompanied by a certification from the 
superintendent or other bonded officer showing: (1) That the said 
beneficiary is a ward of the Government; (2) that no guardian or other 
fiduciary has been appointed; (3) that the officer making application 
has been designated by the Secretary of the Interior in accordance with 
Pub. L. No. 373, 72d Congress; (4) that he is properly bonded; and (5) 
that he will receive, handle, and account for such benefits in 
accordance with existing law and regulations of the Department of 
Interior.
    (d) A manager of a Department of Veterans Affairs hospital, or a 
manager or superintendent of a contract hospital or State institution 
where the veteran is a patient may make application as custodian for the 
veteran. Such

[[Page 517]]

application must be made with the approval of the regional chief 
attorney.

[19 FR 5087, Aug. 12, 1954]



Sec. 11.111  Form of application.

    Application must be made on Department of Veterans Affairs Adjusted 
Compensation Form 1701.

[13 FR 7127, Nov. 27, 1948]



Sec. 11.114  Identification.

    Before settlement is made on an adjusted service certificate, the 
person applying therefor will be identified as the person entitled to 
the settlement for which an application is made. If made in the United 
States or possessions, certification will be accepted if made by a 
United States postmaster or assistant postmaster over an impression of 
the post office cancellation stamp; a commissioned officer of the 
regular establishment of the Army, Navy, or Marine Corps; a member of 
the United States Senate or the House of Representatives; an officer, 
over his official title, of a post, chapter, or other comparable unit of 
an organization recognized under Veterans Regulation No. 10 (38 U.S.C. 
ch. 12A), or an officer over his official title, of the State or 
national body of such organization, or any person who is legally 
authorized to administer oaths in a State, Territory, possession, 
District of Columbia, or in a Federal judicial district, of the United 
States. If identification is made in a foreign country, it will be 
certified by an American consul, a recognized representative of an 
American Embassy or Legation, or by a person authorized to administer 
oaths under the laws of the place where identification is made; 
provided, there be attached to the certificate of such latter officer a 
proper certification by an accredited official of the State Department 
of the United States that such officer was authorized to administer 
oaths in the place where certification was made. A manager of a 
Department of Veterans Affairs hospital is authorized to identify 
patients, members, or employees of the hospital over which he has 
charge. An employee of the Department of Veterans Affairs who has been 
specifically designated in writing to do so may identify applicants 
during official hours and on the premises of the Department of Veterans 
Affairs using for this purpose, if necessary, the official records of 
the Department of Veterans Affairs. Field station finance employees may 
not be designated for this purpose.
    (a) Fingerprint impressions shall be required on the application and 
shall be imprinted thereon in the presence of the persons identifying 
the veteran. In the case of veterans who are mentally incapacitated and 
application is being executed by a representative of the veteran, the 
veterans' fingerprints will be obtained if possible. If this cannot be 
done, as also in the case of an individual whose fingers are all 
missing, a statement of explanation will be required.
    (b) [Reserved]

[13 FR 7127, Nov. 27, 1948, as amended at 19 FR 5087, Aug. 12, 1954]



Sec. 11.115  Where to file application.

    The application for final settlement, accompanied by the veteran's 
adjusted service certificate, unless the certificate is being held in 
the Department of Veterans Affairs as collateral for a loan, must be 
forwarded to the Manager, Veterans Benefits Office, Washington, DC 
20421.

[19 FR 5087, Aug. 12, 1954]



Sec. 11.116  Death of veteran before final settlement.

    If the veteran dies after making application under the Adjusted 
Compensation Payment Act, 1936, but before it is filed, it may be filed 
by any person and will be considered valid if found to bear the bona-
fide signature of the applicant, discloses an intention to claim 
benefits under the Act, and is filed before the maturity of the 
certificate and before payment is made to the beneficiary. An 
application made by the veteran or his legal representative shall 
evidence his intention to claim the benefits of this Act; no other 
evidence shall be acceptable.
    (a) If the veteran's death occurs after the application is filed but 
before payment is received under this Act, or if the application is 
filed after death occurs but before the maturity of the certificate and 
before payment is made to

[[Page 518]]

the beneficiary under section 501 of the World War Adjusted Compensation 
Act, as amended, payment under this act shall be made to the estate of 
the veteran irrespective of any beneficiary designation.
    (b) If the veteran dies without filing a valid application under 
this Act, no payment under this Act shall be made. In such case, payment 
of the certificate will be made under the World War Adjusted 
Compensation Act, as amended, in accordance with Sec. 11.128; however, 
in making any settlement there shall be deducted from the face value of 
the certificate the amount of any outstanding loans and so much of the 
unpaid interest as accrued prior to October 1, 1931.

[19 FR 5087, Aug. 12, 1954]



Sec. 11.117  Missing applications.

    Where the records of the Department of Veterans Affairs show that an 
application, disclosing an intention to claim the benefits of this Act, 
has been filed and the application cannot be found, such application 
shall be presumed, in the absence of affirmative evidence to the 
contrary, to have been valid when originally filed. The determination of 
the correctness of this assumption shall be made by the Manager, 
Veterans Benefits Office, Washington, DC, or his designee.

[19 FR 5087, Aug. 12, 1954]

Application for Payment of Adjusted Service Certificate Under the World 
   War Adjusted Compensation Act, as Amended (Pub. L. 120, 68th Cong.)

    Source: 19 FR 5087, Aug. 12, 1954, unless otherwise noted.



Sec. 11.125  Settlement of matured adjusted service certificates.

    Where an application for final settlement of an adjusted service 
certificate is received in the Department of Veterans Affairs subsequent 
to the date of maturity of the certificate, payment will be made under 
the terms of the World War Adjusted Compensation Act, as amended. This 
Act provides for payment of the face value of the certificate less any 
outstanding indebtedness for loans obtained on the certificate; however, 
interest accrued on the loans subsequent to September 30, 1931, and 
unpaid will be canceled insofar as the veteran is concerned.



Sec. 11.126  Form of application.

    Either demand for payment (Form 1748) of application (Form 1701) may 
be used by the veteran or his legal representative in applying for final 
settlement of a matured certificate.



Sec. 11.127  Identification.

    Before payment may be made on the adjusted service certificate, the 
person applying therefor will be identified as the person entitled to 
payment for which application is made. Such identification will be 
accepted if made by an authorized person as stated in Sec. 11.114; 
also, fingerprint impressions shall be placed in the space provided on 
the application in accordance with Sec. 11.114(a).



Sec. 11.128  Veteran dies without having filed application for final 
settlement.

    If the veteran dies without having filed application for final 
settlement under the Adjusted Compensation Payment Act, 1936, and the 
certificate has not matured, payment will be made to the last designated 
beneficiary or, if no beneficiary, to his estate. If the certificate has 
matured, payment will be made to the veteran's estate regardless of any 
beneficiary designation. Payment of the amount due on a deceased 
veteran's certificate will be made only on an approved award based upon 
receipt in the Department of Veterans Affairs of an application properly 
executed by the person or persons entitled.



Sec. 11.129  Form of application for payment of deceased veteran's 
certificate.

    Demand for payment (VA Form 8-582) is the proper form for use in 
applying for payment of the amount due on a deceased veteran's 
certificate.



Sec. 11.130  Where to file applications.

    Application for payment of a matured certificate or a deceased 
veteran's certificate, accompanied by the adjusted service certificate, 
unless it is held in the Department of Veterans Affairs as collateral 
for a loan, must be

[[Page 519]]

forwarded to the Manager, Veterans Benefits Office, Washington, DC, 
20421.



PART 12_DISPOSITION OF VETERAN'S PERSONAL FUNDS AND EFFECTS--Table 
of Contents




  Disposition of Veteran's Personal Funds and Effects on Facility Upon 
 Death, or Discharge, or Unauthorized Absence, and of Funds and Effects 
                            Found on Facility

Sec.
12.0 Definitions.
12.1 Designee cases; competent veterans.
12.2 Designee cases; incompetent veterans.
12.3 Deceased veteran's cases.
12.4 Disposition of effects and funds to designee; exceptions.
12.5 Nondesignee cases.
12.6 Cases of living veterans.
12.7 Cases not applicable to provisions of Sec. Sec. 12.0 to 12.6.
12.8 Unclaimed effects of veterans.
12.9 Rights of designate; sales instruction; transportation charges.
12.10 Proceeds of sale.
12.12 Miscellaneous provisions.
12.13 Posting of notice of the provisions of Pub. L. No. 734, 75th 
          Congress (38 U.S.C. 16-16j).

  Disposition of Personal Funds and Effects Left Upon Premises of the 
 Department of Veterans Affairs by Non-Veteran Patients, Employees and 
                     Other Persons, Known or Unknown

12.15 Inventory of property.
12.16 Action on inventory and funds.
12.17 Unclaimed effects to be sold.
12.18 Disposition of funds and effects left by officers and enlisted men 
          on the active list of the Army, Navy or Marine Corps of the 
          United States.

Under Pub. L. 382, 77th Congress, December 26, 1941, Amending the Act of 
                      June 25, 1910 (24 U.S.C. 136)

12.19 Provisions of Pub. L. 382 (38 U.S.C. 17-17j).
12.20 Posting of notice provisions of Pub. L. 382.
12.21 Action upon death of veteran.
12.22 Disposition of personal property.
12.23 Recognition of valid claim against the General Post Fund.

                   Operation of Lost and Found Service

12.24 Operation of lost and found service.

    Authority: 72 Stat. 1114, 1259, as amended; 38 U.S.C. 501, 8510.

  Disposition of Veteran's Personal Funds and Effects on Facility Upon 
 Death, or Discharge, or Unauthorized Absence, and of Funds and Effects 
                            Found on Facility



Sec. 12.0  Definitions.

    (a) As used in respect to the disposition of property of veterans 
dying at Department of Veterans Affairs medical centers or other field 
facilities, or who are discharged or who elope, or are absent without 
leave therefrom, and in respect to property found thereat, the term 
funds means all types of United States currency and coin, checks payable 
to the decedent except checks drawn on the Treasurer of the United 
States which have never been negotiated, and includes deposits to the 
credit of the veteran in the account ``Personal Funds of Patients,'' and 
each competent veteran will be so advised. The term effects means and 
embraces all other property of every description, including insurance 
policies, certificates of stock, bonds and notes the obligation of the 
United States or of others, and all other papers of every character 
except checks drawn on the Treasurer of the United States, as well as 
clothing, jewelry and other forms of property, or evidences of interest 
therein. Checks drawn on the Treasurer of the United States which have 
never been negotiated will be returned to the issuing office for 
disposition.
    (b) Field facilities as used in Sec. Sec. 12.1 to 12.13 includes 
hospitals, centers, domiciliary activities, supply depots, and other 
offices over which the Department of Veterans Affairs has direct and 
exclusive administrative jurisdiction, and excludes State, county, city, 
private, and contract hospitals and hospitals or other institutions 
operated by the United States through agencies other than the Department 
of Veterans Affairs. At institutions other than field facilities as 
herein defined funds or effects as defined in paragraph (a) of this 
section, except for funds derived from gratuitous benefits under laws 
administered by the Department of Veterans Affairs and deposited by the 
Department of Veterans Affairs in the account Personal Funds of Patients 
for incompetent veterans, will be disposed

[[Page 520]]

of under the laws governing such institutions. In any case where the 
veteran died intestate without heirs or next of kin his or her personal 
property vests in the United States. Disposition of the property will be 
made in accordance with the provisions of Sec. Sec. 12.19 to 12.23.

[13 FR 7127, Nov. 27, 1948, as amended at 25 FR 1612, Feb. 25, 1960]



Sec. 12.1  Designee cases; competent veterans.

    (a) Each competent veteran now being cared for or who is hereafter 
admitted to receive care as such at a Department of Veterans Affairs 
field facility, unless it be detrimental to his or her health, will be 
requested and encouraged to designate on the prescribed VA Form 10-P-10, 
Application for Hospital Treatment or Domiciliary Care, the person to 
whom he or she desires the Department of Veterans Affairs to deliver his 
or her funds and effects in event of death. He or she may also designate 
an alternate to whom delivery will be made if the first designee fails 
or refuses to accept delivery. It should be clearly understood that the 
delivery of such funds or effects will constitute only a delivery of 
possession thereof, and such delivery is not intended to affect in any 
manner the title to such funds or effects or determine the person 
ultimately entitled to receive same from the person to whom delivery is 
made (hereinafter in the regulations in this part termed the designee). 
The person designated may not be an employee of the Department of 
Veterans Affairs unless such employee be the wife (or husband), child, 
grandchild, mother, father, grandmother, grandfather, brother, or sister 
of the veteran. The veteran may in writing change or revoke such 
designation at any time. If a veteran becomes incompetent, any 
designation previously made will become inoperative with respect to 
those funds deposited by the Department of Veterans Affairs in Personal 
Funds of Patients which were derived from gratuitous benefits under laws 
administered by the Department of Veterans Affairs. The guardian may 
change or revoke the existing designation with respect to personal 
effects and funds derived from other sources.
    (b) Veterans will be encouraged to place in the custody of their 
relatives articles of little or no utility value to them during their 
period of care at a Department of Veterans Affairs field facility, and 
to retain in their possession only such funds and effects as are 
actually required and necessary for their immediate convenience.

[13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1612, Feb. 25, 1960]



Sec. 12.2  Designee cases; incompetent veterans.

    (a) An incompetent veteran will not be informed concerning the 
designation of a person to receive funds or effects; but if he or she 
has a guardian the guardian will be requested to make such designation 
of himself or herself or another person to receive possession of the 
funds and effects (other than funds deposited by the Department of 
Veterans Affairs in Personal Funds of Patients which were derived from 
gratuitous benefits under laws administered by the Department of 
Veterans Affairs) upon the incompetent's death. The guardian will sign 
the letter designating himself or herself or another person with the 
veteran's name ``By ----------, guardian of his or her estate''.
    (b) No effort will be made to obtain a designation by or on behalf 
of an incompetent veteran who has no guardian.

[13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1613, Feb. 25, 1960]



Sec. 12.3  Deceased veteran's cases.

    (a) Immediately upon the death or the absence without leave of any 
beneficiary at a field facility, as defined in Sec. 12.0(b), a survey 
and inventory of the funds and effects of such beneficiary will be taken 
in the following manner:
    (1) If the death or absence without leave occurred during 
hospitalization, a complete inventory (VA Form 10-2687, Inventory of 
Funds and Effects) will be made of all personal effects (including those 
in the custody of the hospital, jewelry being worn by the deceased 
person, or jewelry and other effects in pockets of clothing he or she 
may have been wearing) and all funds

[[Page 521]]

found and moneys on deposit in Personal Funds of Patients. In the case 
of death of incompetent veterans after November 30, 1959, the inventory 
will be completed to show separately those funds deposited by the 
Department of Veterans Affairs in Personal Funds of Patients which were 
derived from gratuitous benefits under laws administered by the 
Department of Veterans Affairs. For purpose of determining the source of 
funds, expenditures from the account will be considered as having been 
made from gratuitous benefits, not to exceed the extent of deposits of 
such benefits. In the event death occurred during other than official 
working hours, the officer of the day and/or a representative of Nursing 
Service will collect and inventory all funds and personal effects on the 
person of the deceased beneficiary and on the ward, will carefully 
safeguard such property and, upon completion of the tour of duty, will 
turn the funds and effects over to the properly designated employees.
    (2) If the death or absence without leave occurred while the 
beneficiary was assigned to a domiciliary section, or while receiving 
hospitalization and at time of death or absence without leave any 
effects are in the section, a like inventory will be made by 
representatives of the Chief, Domiciliary Operations and/or Medical 
Administration Division.
    (3) The inventory report will be executed in triplicate, original 
and two copies. All will be signed by the employee making the inventory, 
and disposed of as provided for in pertinent procedural instructions.
    (4) Personally owned clothing or other effects (such as tooth 
brushes, false teeth not containing gold, etc.), which are unserviceable 
by reason of wear or tear or insanitary condition, and clothing that had 
been supplied by the Government, will not be included in this inventory; 
instead, the unserviceable personally owned articles will be listed on a 
separate list, with their condition briefly described, and their 
disposition recommended in a separate report to the facility head. The 
facility head, if approving this recommendation, will order destruction 
or utilization in occupational therapy, or as wipe rags, etc., of such 
unserviceable articles and, when they are so destroyed or utilized, will 
have entered on the papers the date and nature of the disposition. The 
completed papers will then be placed in the correspondence file of the 
beneficiary. Clothing that had been supplied by the Government will be 
reconditioned if possible and returned to stock for issue to other 
eligible beneficiaries. When Government-owned clothing cannot be 
reconditioned it will be disposed of.
    (5) When the nearest relative requests that the deceased beneficiary 
be clad for burial in clothing he or she personally owned, instead of 
burial clothing to be supplied under the contract for mortuary services, 
such request will be honored. A receipt in such cases will be obtained 
from the undertaker, specifying the articles of clothing so used. 
Adjustment of the undertaker's bill in the case will correspondingly be 
made.
    (6) In accomplishing such inventories, detailed description will be 
given of items of material value or importance, for example:

Watch--Yellow metal (make, movement, and case number, if available 
without damage to watch).
Ring--Yellow metal (probably gold-plated or stamped 14-K., setting if 
any).
Discharge certificate.
Adjusted service certificate (number).
Bonds or stocks (name of company, registered or nonregistered, 
identifying number, recited par value, if any).
Bank books or other asset evidence (name of bank or other obligor, 
apparent value, identifying numbers, etc.).
Clothing (brief description and statement of condition). Etc.

    (b) Upon completion of the survey and inventory, the effects will be 
turned over to the designated employee for safekeeping. Any funds found 
in excess of $100 which apparently were the property of the deceased 
will be turned over to the details clerk and delivered immediately to 
the agent cashier, who shall deposit same in the account ``Personal 
Funds of Patients''. Unendorsed checks other than Treasury checks and 
funds not in excess of $100 will be considered personal effects

[[Page 522]]

and not funds and will be handled accordingly.

[13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1613, Feb. 25, 1960; 29 
FR 17904, Dec. 17, 1964; 36 FR 5911, Mar. 31, 1971]



Sec. 12.4  Disposition of effects and funds to designee; exceptions.

    (a) Upon authorization by the facility head or his or her designated 
representative, all funds, as defined in Sec. 12.0 (except funds on 
deposit in Personal Funds of Patients derived from gratuitous benefits 
under laws administered by the Department of Veterans Affairs and 
deposited by the Department of Veterans Affairs where the veteran was 
incompetent at time of death), and effects will be delivered or sent to 
the designee of the deceased veteran if request therefor be made after 
death and within 90 days following the mailing of notice to such 
designee (see Sec. 12.9(a)), unless:
    (1) The executor or administrator of the estate of the deceased 
veteran shall have notified the facility head or his or her designated 
representative of his or her desire and readiness to receive such funds 
or effects, in which event the facility head or his or her designated 
representative will authorize delivery of all funds and effects to such 
executor or administrator upon receipt of appropriate documentary 
evidence of his or her qualifications and in exchange for appropriate 
receipts, or
    (2) An heir capable of inheriting the personal property of the 
veteran makes claim for the funds and effects prior to delivery to the 
designee.
    (3) Subsequent to the naming of a designee the veteran became 
incompetent and his or her guardian revoked such designation, in which 
event the facility head or his or her designated representative will 
deliver all funds and effects to his guardian in exchange for 
appropriate receipts subject to the limitation contained in paragraph 
(d) of this section, or
    (4) Designee was the wife (or husband) of the veteran at the time of 
designation, and information at the disposal of the field facility 
indicates that she (or he) was thereafter divorced and the veteran was 
incompetent at or subsequent to the time of divorce, or
    (5) Notwithstanding there is a designee, it is probable that title 
would pass to the United States under the provisions of Sec. Sec. 12.19 
to 12.23 issued pursuant to 38 U.S.C. 5502(e) and 38 U.S.C. 8520(a), or
    (6) The facility head or his or her designated representative 
determines that there is reasonable ground to believe that the transfer 
of such possession to the designee probably would be contrary to the 
interests of the person legally entitled to the personal property, or 
there are any other special circumstances raising a serious doubt as to 
the propriety of such delivery to the designee.

In any case in which the facility head does not deliver the funds and 
effects, because of the provisions of paragraphs (a)(3), (4), and (5) of 
this section, he or she will develop all facts and refer the matter to 
the Chief Attorney of the regional office having jurisdiction over the 
area where the hospital is located, for advice as to the disposition 
which legally should be made of such funds and effects.
    (b) When authorized by the facility head or his or her designated 
representative, the effects will be delivered or shipped to the 
designee. If shipped at Government expense, the shipment shall be made 
in the most economical manner but in no case at a cost in excess of $25. 
If such expenses will exceed $25, the excess amount shall be paid by the 
consignee to the facility head in advance. There will be no obligation 
on the Government, initially or otherwise, to pay such expenses in 
excess of $25.
    (c) When possession of funds or effects is transferred to a 
designee, the attention of the designee will again be directed to the 
fact that possession only has been transferred to him or her and that 
such transfer does not of itself affect title thereto and that such 
designee will be accountable to the owner of said funds and effects 
under applicable laws.
    (d) Upon receipt from the proper Chief Attorney of an appropriate 
certification that the guardianship was in full force and effect at the 
time of the veteran's death and that the guardian's bond is adequate, 
funds (other than funds deposited by the Department of Veterans Affairs 
in Personal Funds of

[[Page 523]]

Patients derived from gratuitous benefits under laws administered by the 
Department of Veterans Affairs) and effects of an incompetent veteran 
may be immediately delivered or sent to such guardian, inasmuch as the 
guardian had a right to possession, and he or she will be accountable 
therefor to the party entitled to receive the decedent's estate. If, 
however, it appears probable that decedent died without a valid will and 
left no person surviving entitled to inherit, the funds will not be paid 
to the former guardian but will be disposed of as provided in Sec. 
12.19(a). The effects will be sold, used, or destroyed, at the 
discretion of the facility head or his designated representative.

[25 FR 1613, Feb. 25, 1960, as amended at 29 FR 17904, Dec. 17, 1964]



Sec. 12.5  Nondesignee cases.

    (a) If there exists no designee at the time of death at a hospital, 
domiciliary, or regional office of a veteran admitted as competent, or 
the designee fails or refuses to claim the funds and effects as defined 
in Sec. 12.0(a) within 90 days following the mailing of notice to such 
designee, the facility head will take appropriate action to dispose of 
the effects to the person or persons legally entitled thereto, i.e., the 
executor or administrator of the decedent, or, if no notice of such an 
appointment has been received, to the decedent's widow, child, 
grandchild, mother, father, grandmother, grandfather, brother, or 
sister, in the order named. Subject to the applicable provisions of 
Sec. Sec. 12.3 and 12.4, such delivery may be made at any time before 
the sale contemplated by Sec. 12.9 to the designee or other person 
entitled under the facts of the case. Delivery will be made to the 
person entitled to priority as prescribed in this paragraph, unless such 
person waives right to possession, in which event delivery will be to 
the person, if any, in whose favor such prior entitled person waives 
right to possession. If the waiver is not in favor of a particular 
person or class, delivery will be to the person or persons next in order 
of priority under this paragraph. If in any case there be more than one 
person in the class entitled to priority, initially or by reason of 
waiver, delivery will be made only to their joint designated agent (who 
may, but need not, be one of the class), or to one of such class in his 
or her own behalf upon written waiver of all others of the class 
entitled thereto. The guardian of a minor or incompetent may waive his 
or her ward's prior right to possession.
    (b) Except where delivery is made to a designee, executor, or 
administrator, funds of veterans who were competent at time of death 
will be released to the person or persons who would ultimately be 
entitled to distribution under the laws of the State of the decedent's 
domicile. The person or persons entitled may waive in writing his or her 
right to the funds in favor of another heir or next of kin.
    (c) Funds of veterans who were incompetent at time of death 
occurring after November 30, 1959, if derived from sources other than 
gratuitous benefits deposited by the Department of Veterans Affairs in 
Personal Funds of Patients under laws administered by the Department of 
Veterans Affairs, will be disposed of in the same manner as for 
competent veterans.
    (d) Funds deposited by the Department of Veterans Affairs in 
Personal Funds of Patients, at any office, for veterans who were 
incompetent at time of death occurring after November 30, 1959 and which 
were derived from gratuitous benefits under laws administered by the 
Department of Veterans Affairs, will be paid upon receipt of proper 
application to the following persons living at the time of settlement, 
and in the order named: the surviving spouse, the children (without 
regard to age or marital status) in equal parts, and the dependent 
parents of such veteran, in equal parts. Any funds derived from 
gratuitous benefits not disposed of in accordance with this paragraph 
shall be deposited to the credit of the applicable current 
appropriation; except that there may be paid only so much of such funds 
as may be necessary to reimburse a person (other than a political 
subdivision of the United States) who bore the expenses of last sickness 
or burial of the veteran for such expenses.
    (e) No payment shall be made under paragraph (d) of this section 
unless claim therefor is filed with the Department of Veterans Affairs 
within 5 years

[[Page 524]]

after the death of the veteran, except that, if any person so entitled 
under such regulation is under legal disability at the time of death of 
the veteran, such 5-year period of limitation shall run from the 
termination or removal of the legal disability.

[18 FR 1854, Apr. 3, 1953 and 25 FR 1614, Feb. 25, 1960, as amended at 
29 FR 17904, Dec. 17, 1964]



Sec. 12.6  Cases of living veterans.

    (a) Except as provided in Sec. 12.8, effects of veterans absent 
without leave or who have been discharged or have eloped (and who are 
not to be returned to the field facility) will be disposed of as 
follows:
    (1) To the owner if competent, or if deceased to his or her 
administrator or executor or as directed in writing by such owner, or 
his or her executor or administrator.
    (2) To the guardian of the owner if the latter be incompetent, or if 
deceased to his or her administrator or executor, or as directed in 
writing by such guardian, executor or administrator.
    (3) To the incompetent owner if he or she has no guardian; delivery, 
however, to the incompetent owner may be withheld and may be made to the 
person who is caring for such incompetent if, in the judgment of the 
facility head or his or her designated representative, such delivery is 
to the incompetent's best interest.

    Note: The Government will not pay expense of transportation of 
effects of competent or incompetent veterans discharged, on trail visit, 
absent without leave, or who have eloped, except that personal effects 
of a beneficiary discharged or on trail visit, or of a beneficiary being 
transferred to another facility at Government expense, which are not 
available at time of discharge, beginning of trail visit, or transfer of 
the beneficiary, due to the articles being in custody of the Government, 
may be shipped at Government expense.

    (b) Funds of veterans absent without leave or who have been 
discharged or have eloped (and who are not to be returned to the 
station) will be disposed of in accordance with the provisions of 
current Department of Veterans Affairs procedures.

[13 FR 7129, Nov. 27, 1948, as amended at 17 FR 1687, Feb. 26, 1952; 19 
FR 9330, Dec. 30, 1954; 29 FR 17904, Dec. 17, 1964]



Sec. 12.7  Cases not applicable to provisions of Sec. Sec. 12.0 to 12.6.

    The provisions of Sec. Sec. 12.0 to 12.6 shall be inapplicable to 
property known to be that of any person dying in or discharged or absent 
without leave from a Department of Veterans Affairs field facility other 
than a veteran admitted as such to such field facility.

[13 FR 7129, Nov. 27, 1948]



Sec. 12.8  Unclaimed effects of veterans.

    (a) In the case of any property of a veteran who was in receipt of 
hospital or domiciliary care, heretofore or hereafter left at a 
Department of Veterans Affairs field facility, the owner of which is 
discharged or absent without leave or who has eloped and is not to be 
returned to a Department of Veterans Affairs field facility, or has died 
after departure therefrom, or in case the whereabouts or identity of any 
owner of any property thereat be unknown, such property, unless it shall 
be disposed of under the provisions of Sec. Sec. 12.4 and 12.6 shall be 
sold, used, destroyed or otherwise disposed of as the manager or his or 
her designated representative shall determine the circumstances in the 
case may warrant. Any sale of such property shall be conditioned upon 
the 90-day notice provided in section 6 of the Act of June 25, 1938 (38 
U.S.C. 5-16e).
    (b) If the circumstances are such that retention of any property as 
is mentioned in paragraph (a) of this section, or of any property of 
unknown ownership found on the premises would endanger the health or 
life of patients or others on the premises (by reason of contagion, 
infection, or otherwise) such property shall be forthwith destroyed on 
order of the manager or his or her designated representative, and proper 
record of the action taken will be made.
    (c) If there be no known claimant of any such property and if it may 
be used at the field facility for the benefit of

[[Page 525]]

the members or patients for such purposes as the General Post Fund is 
intended to serve, and if the value is inconsequential, the manager or 
his or her designated representative may authorize the retention and use 
of such property at the field facility.
    (d) Any such property which is not destroyed or used as provided in 
paragraphs (b) and (c) of this section shall be sold in the manner 
provided in Sec. Sec. 12.9 and 12.10, after notice as therein provided 
unless, prior to sale, claim be made for any such property by someone 
legally entitled thereto.

[13 FR 7129, Nov. 27, 1948]



Sec. 12.9  Rights of designate; sales instruction; transportation charges.

    (a) Upon death of a veteran admitted as such to a field facility, 
the Manager or his or her designated representative will cause notice 
(parts I and V of VA Form 10-1171) to be sent to the designate: 
Provided, however, That if the Manager or his or her designated 
representative has information of the death of the primary designate, 
notice shall be sent to the alternate designate and all of the 
provisions of the regulations in this part respecting the designate will 
be deemed to apply to the alternate. If the designate is a minor or a 
person known to be incompetent, delivery of the funds or effects will be 
made only to the designate's guardian or custodian upon qualification. 
The right of the designate to receive possession ceases when he or she 
refuses to accept delivery or if he or she fails to respond within 90 
days after VA Form 10-1171 was mailed. When the right of a designate 
ceases, VA Form 10-1171 will be forwarded immediately to the alternate 
designate, whose rights then become identical with those forfeited by 
the first designate, and the rights of the alternate designate shall 
terminate at the expiration of 90 days after VA Form 10-1171 was mailed 
to him or her. Delivery will not be made to a designate until he or she 
submits a signed statement to the effect that he or she understands that 
the delivery of such funds and effects constitutes a delivery of 
possession only and that such delivery is not intended to affect in any 
manner the title thereto. Such notice shall fully identify the decedent 
and state the fact that he or she designated the addressee to receive 
possession of such property; that the right to receive possession 
thereof does not affect the ownership but that the designate will be 
responsible for the ultimate disposition thereof to those who, under 
applicable law, are entitled to the decedent's property; and will 
request prompt advice as to whether the designate will accept such 
property and that, if he or she will, he or she furnish shipping 
instructions, upon receipt of which the property will be shipped at the 
expense of the Government. However, prior to dispatching such notice, it 
will be definitely determined that the shipping expense will not exceed 
$25. If such expense will exceed $25, the excess cost will be 
ascertained, and the notice will include a statement of the amount of 
such excess shipping cost with request that the amount thereof be 
remitted at the time shipping instructions are furnished. In estimating 
the shipping expense, it will be assumed that shipment to the designate 
will be to the same address as that to which the notice is sent. Each 
notice, however, shall contain a statement that in no event will the 
Government pay shipping expense in excess of $25. The notice will 
include a copy of the inventory of the property which it is proposed to 
deliver to the designate.
    (b) Upon receipt of appropriate shipping instructions the property 
will be shipped, transportation charges prepaid, by mail, express, or 
freight as may be appropriate under the circumstances and most 
economical to the Government. The expense of such shipment, chargeable 
to the Government, in no case to exceed $25.00, is payable the same as 
other administrative expenses of the Department of Veterans Affairs.
    (c) The living owner of any property left or found at a field 
facility will be promptly notified thereof. Except as provided in Sec. 
12.6(a), transportation charges on property shipped to a living veteran 
will not be paid by the Government. In such cases, shipment shall be 
made as requested by the owner of the property (or his or her guardian) 
upon receipt of necessary transportation charges, which will be prepaid, 
unless the owner requests shipment with

[[Page 526]]

charges collect and the carrier will accept such shipment without 
liability for such charges, contingent or otherwise, upon the 
Government.
    (d) If the designate refuses or, upon the lapse of 90 days, has 
failed to take possession or request shipment of decedent's property 
(paragraph (a) of this section), or if 90 days have elapsed after the 
finding of any property and the owner (known or unknown) has failed to 
request same, the manager or his or her designated representative will 
authorize destruction, use or sale.
    (e) If sale of the property is authorized the manager will take 
necessary action to ascertain the names and addresses, of the owners; 
or, in the event of the owner's decease, of his or her executor or 
administrator, widow, child, grandchild, mother, father, grandmother, 
grandfather, brother, or sister.
    (f) When in possession of the necessary information the manager will 
cause proper notice of sale (Form 4-1171) to be mailed. Such notice in 
all cases shall disclose the identity, if known, of the decedent whose 
property is to be sold and contain a copy of the inventory of such 
property. A copy of such notice (Form 4-1171), after parts I, IV, and V 
thereof are completed, shall be mailed to the owner, if known, or if 
deceased to the decedent's executor or administrator, if known, and also 
to the widow (or widower), child, grandchild, mother, father, 
grandmother, grandfather, brother and sister, if known. If more than one 
relative of the degree named is known, copy will be mailed to each. If 
the owner is living, parts IV and V only of Form 4-1171 will be 
completed.
    (g) Copy of such notice (Form 4-1171, parts IV and V) will also be 
posted by a responsible employee more than 21 years of age at:
    (1) The field facility where the death occurred or property shall 
have been found,
    (2) The place where property is situated at the time such notice is 
posted, and
    (3) The place where probate notices are posted in the county wherein 
the sale is to be had.
    (h) In addition to showing the name of the owner, if known (alive or 
deceased), and the inventory of the property to be sold, such notice 
shall state the hour and day when and the precise place where the sale 
will occur and that the same will be at public auction for cash upon 
delivery without warranty, express or implied, and that such sale is 
pursuant to the act of June 25, 1938 (38 U.S.C. 16-16j); and shall also 
state that any person legally entitled to said property may claim the 
same at any time prior to sale thereof and in the event of such claim by 
a proper person the property will not be sold but will be delivered to 
the person lawfully entitled thereto. Said notice shall also contain a 
statement substantially to the effect that if sold the net proceeds of 
sale may be claimed by the person who is legally entitled at any time 
within 5 years after the date of notice; or in case of property the 
ownership of which was not originally known, within 5 years after its 
finding; otherwise such proceeds will be retained in the General Post 
Fund, subject to disbursement for the purposes of such fund.
    (i) The person (or persons) posting said notice of sale (Form 4-
1171) shall make appropriate affidavit on a copy thereof as to his or 
her action in that respect and the manager or his or her designated 
representative will also certify on the same copy as to the persons to 
whom copies of such notice were mailed and the mailing dates. The copy 
on which appear the affidavit and certificate as to service of the 
notice will be retained in the facility file pertaining to the 
disposition of such property.

[13 FR 7129, Nov. 27, 1948, as amended at 15 FR 663, Feb. 7, 1950; 23 FR 
5, Jan. 1, 1958]



Sec. 12.10  Proceeds of sale.

    After proper notice as prescribed, sale of any such property which 
it is proper to sell, will be made by public auction by the manager (or 
any employee designated by him or her) at the time and place stated in 
the notice of sale. The property will be sold to the highest bidder (no 
employee except member employees of the Department of Veterans Affairs 
shall purchase any of this property) and forthwith delivered and the 
amount of the bid collected and deposited to the credit of ``General 
Post Fund, Department of Veterans Affairs.'' Care will be taken

[[Page 527]]

to segregate the property of each owner and separate account will be 
maintained as to the proceeds of sale thereof. Property not disposed of 
by public auction will be included in the next sale or will be used or 
destroyed as the value thereof warrants at the discretion of the 
manager.

[13 FR 7130, Nov. 27, 1948]



Sec. 12.12  Miscellaneous provisions.

    If it is shown that some person other than the veteran has title to 
property in a veteran's possession at the time of death, nothing 
contained in Sec. Sec. 12.0 to 12.12 shall be construed as prohibiting 
delivery of such property to the owner. A life insurance policy may be 
delivered to the beneficiary therein named if the insured is deceased, 
notwithstanding the veteran has designated a person to whom possession 
of his or her property at the field facility is to be transferred. In no 
case will funds or effects be delivered to a minor, or to an incompetent 
person other than as provided in Sec. 12.9 (a) and (c), but where any 
such person is entitled to title or possession delivery may be made to 
his or her guardian.

[13 FR 7130, Nov. 27, 1948]



Sec. 12.13  Posting of notice of the provisions of Pub. L. No. 734, 
75th Congress (38 U.S.C. 16-16j).

    In order that all persons who bring property on premises of the 
Department of Veterans Affairs may be advised of the existence of the 
act of June 25, 1938 (38 U.S.C. 16-16j), and that it affects such 
property, notice thereof (Form 4-1182), shall be permanently posted in 
at least one prominent place on the premises of each field facility 
where persons are likely to see such notice.

[13 FR 7130, Nov. 27, 1948]

  Disposition of Personal Funds and Effects Left Upon Premises of the 
 Department of Veterans Affairs By Non-Veteran Patients, Employees and 
                     Other Persons, Known or Unknown



Sec. 12.15  Inventory of property.

    Immediately upon the death at a Department of Veterans Affairs field 
facility of a person who was not admitted as a veteran, or immediately 
after it is ascertained that any such person has absented himself or 
herself from such field facility, a survey and inventory of the personal 
funds and effects of such deceased or absent person will be made in the 
manner prescribed in Sec. 12.3(a).

[13 FR 7130, Nov. 27, 1948]



Sec. 12.16  Action on inventory and funds.

    (a) The manager will dispose of the personal funds and effects as 
promptly as possible. No expense will be incurred by the Government for 
shipment of the effects.
    (b) In making disposition of funds and effects the manager will 
release the funds to the owner if living and will release the effects to 
him or her or as directed by him or her, provided that if he or she is 
incompetent and has a guardian the funds and effects will be released to 
such guardian. If the owner is deceased, and left a last will and 
testament probated under the laws of the place of his or her last legal 
domicile or under the laws of the State, territory, insular possession, 
or dependency, within which the field facility may be, the personal 
property of such decedent situated upon such premises will be released 
to the executor. If such person left on said premises funds or effects 
not disposed of by a will probated in accordance with the provisions of 
this paragraph, such property shall be released to the administrator, if 
one has been appointed.
    (c) In those cases where there is neither an administrator nor an 
executor the funds and effects will be released to the person entitled 
to inherit the personal property of the decedent under the intestacy 
laws of the State where the decedent was last domiciled.
    (d) Where disposition of the funds and effects cannot be 
accomplished under the provisions of paragraphs (b) and (c) of this 
section, the funds, at the expiration of 90 days will be deposited to 
the General Post Fund and the effects will be disposed of in accordance 
with the provisions of Sec. Sec. 12.8, 12.9, and 12.10.

[13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949]

[[Page 528]]



Sec. 12.17  Unclaimed effects to be sold.

    (a) Personal effects of persons referred to in Sec. 12.15 which 
remain unclaimed for 90 days after the death or departure of the owner 
shall be sold in the manner provided by Sec. 12.8. The owner, his or 
her personal representative, or next of kin may reclaim any such 
property upon request therefor at any time prior to the sale.
    (b) Any unclaimed funds and the proceeds of any effects sold as 
unclaimed will be deposited to the General Post Fund subject to be 
reclaimed within five years after notice of sale, by or on behalf of any 
person or persons who, if known, would have been entitled to the 
property prior to the sale.

[13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949]



Sec. 12.18  Disposition of funds and effects left by officers and 

enlisted men on the active list of the Army, Navy or Marine Corps 
of the United States.

    (a) The manager will notify the commanding officer of the death or 
absence of such patient and will deliver to the commanding officer, 
without expense to the Department of Veterans Affairs, the funds and 
effects of the deceased or absent officer, or enlisted man procuring a 
receipt therefor.
    (b) If the funds and effects are not delivered to the commanding 
officer within seven days after the death or absence without leave of an 
officer, or enlisted man, the funds will be deposited in the Personal 
Funds of Patients. If not disposed of at the expiration of 90 days after 
the date of death or absence, the funds will be transferred to the 
General Post Fund and the effects will be handled in accordance with 
regulations governing the disposition of unclaimed effects left by 
veterans. The funds and the proceeds derived from the sale of the 
personal effects will be paid to the person lawfully entitled thereto, 
providing claim is made within five years from the date of notice of 
sale, or in the case of legal disability within five years after 
termination of legal disability.

[13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949]

Under Pub. L. 382, 77th Congress, December 26, 1941, Amending the Act of 
                      June 25, 1910 (24 U.S.C. 136)



Sec. 12.19  Provisions of Pub. L. 382 (38 U.S.C. 17-17j).

    (a) Whenever any veteran (admitted as a veteran) shall die in any 
Department of Veterans Affairs hospital, center, or domiciliary activity 
or in any Federal, State, or private hospital or other institution, 
while being furnished care or treatment therein by the Department of 
Veterans Affairs, without leaving a will and without leaving any spouse, 
heirs, or next of kin entitled to his or her personal property, all such 
property, except funds on deposit in Personal Funds of Patients to the 
credit of an incompetent beneficiary, derived from payments of 
compensation, automatic or term insurance, emergency officers' 
retirement pay or pension, shall immediately vest in and become the 
property of the United States as trustee for the sole use and benefit of 
the General Post Fund, subject to claim as elsewhere provided. Funds to 
the credit of an incompetent beneficiary derived from payments of 
compensation, automatic or term insurance, emergency officers' 
retirement pay or pension will be deposited to the credit of the current 
appropriations provided for the payment of compensation, insurance or 
pension.
    (b) Personal property as used in this section shall include cash, 
funds on deposit in Personal Funds of Patients, bank accounts, 
certificates of stock, bonds, and notes, the obligation of the United 
States or of others, money orders, checks, insurance policies the 
proceeds of which are payable to the veteran or his or her estate, 
postal savings certificates, money and choses in action, and all other 
papers of every character; also clothing, jewelry, and all other forms 
of personalty, or evidences of interest therein.

[19 FR 9330, Dec. 30, 1954]



Sec. 12.20  Posting of notice provisions of Pub. L. 382.

    (a) VA Form 10-P-10, Application for Hospital Treatment or 
Domiciliary Care, includes notice to the applicant that the acceptance 
of care or treatment by any veteran shall constitute

[[Page 529]]

acceptance of the provisions of the act. Similar notice shall be given 
to each veteran receiving care as of March 26, 1942, by posting notice 
in a prominent place in each building wherein patients or members are 
housed. Such notices shall be posted immediately and kept posted.
    (b) Since the provisions of the law are applicable to all veterans 
receiving care at the expense of the Department of Veterans Affairs 
(whether in contract, Federal, State or private hospital) it shall be 
the responsibility of the Department of Veterans Affairs officer 
authorizing admission of a veteran to other than a Department of 
Veterans Affairs hospital, center or home, to cause the chief officer of 
such institution to post in a conspicuous place, in all buildings where 
veterans are housed, the provisions of Sec. 12.19(a), or if he or she 
declines to post such provisions, notify the patients individually and 
supply a statement from each acknowledging notice. Such provisions 
supersede in part the provisions of Form 10-P-10, executed prior to 
March 26, 1942.

[13 FR 7131, Nov. 27, 1948, as amended at 14 FR 243, Jan. 18, 1949]



Sec. 12.21  Action upon death of veteran.

    Upon the death of a veteran at a Department of Veterans Affairs 
hospital, center or domiciliary activity while receiving care or 
treatment therein, and who it is believed leaves no will or heirs or 
next of kin entitled to his or her personal property, regardless of 
whether VA Form 10-P-10, executed by the veteran, names a designee, an 
inventory of the funds and effects, VA Form 10-2687, will be promptly 
prepared and supplemented by all information or evidence available as to 
personal property owned by the veteran in addition to that left at the 
place of death; similar action will be taken when the death of such a 
veteran hospitalized by the Department of Veterans Affairs occurs at a 
contract hospital, Army, Navy, Marine or other hospital. Such 
inventories and information together with any bank books, stocks, bonds, 
or other valuable paper as enumerated in Sec. 12.19(b), left in the 
effects of the veteran, will be delivered to the manager of the 
Department of Veterans Affairs hospital, center, or domiciliary activity 
having jurisdiction, for disposition in accordance with existing 
regulations.

[14 FR 243, Jan. 18, 1949]



Sec. 12.22  Disposition of personal property.

    Any assets heretofore or hereafter accruing to the benefit of the 
General Post Fund, including stocks, bonds, checks, bank deposits, 
savings certificates, money orders, and similar assets, will be sold or 
otherwise converted into cash, except that articles of personal 
adornment which are obviously of sentimental value shall, if unclaimed, 
be retained for 5 years from the date of death of the veteran, unless 
for sanitary or other reasons their retention is deemed unsafe. 
Possession of effects other than those located on the premises of the 
Department of Veterans Affairs will be obtained, except that if 
transportation, storage, etc., is involved, determination will be made 
as to whether expenditure therefor is warranted. Proceeds from the 
conversion or sale will be deposited to the credit of the General Post 
Fund. Funds on deposit in Personal Funds of Patients will be transferred 
to the General Post Fund. Any claims against the estate of the deceased 
veteran will be adjudicated and paid, if valid.

[33 FR 1073, Jan. 27, 1968]



Sec. 12.23  Recognition of valid claim against the General Post Fund.

    Effective December 26, 1941, the assets of the estate of a veteran 
theretofore or thereafter deposited to the General Post Fund are subject 
to the valid claims of creditors presented to the Department of Veterans 
Affairs within 1 year from the date of death or otherwise as provided by 
any applicable law. Any heir, next of kin, legatee, or other person 
found to be legally entitled to the personal property of the veteran may 
claim same within 5 years from the date of the veteran's death. If 
claimant is under any legal disability (as a minor, incompetent, etc.) 
at the date of the veteran's death, the 5-year period begins upon the 
termination of removal of legal disability. Such claims are for 
settlement by the field

[[Page 530]]

facility which had originally made the deposit. In the event of doubt as 
to entitlement or the necessity of legal proceedings to obtain assets 
for the benefit of the General Post Fund, the case will be referred to 
the Chief Attorney of jurisdiction for advice and/or appropriate action. 
Any necessary court costs or expenses will be paid from the 
appropriation, General Operating Expenses, Department of Veterans 
Affairs.

[33 FR 1073, Jan. 27, 1968]

                   Operation of Lost and Found Service



Sec. 12.24  Operation of lost and found service.

    Unless maintained by the Public Buildings Service, the lost and 
found service will be maintained by an employee designated by the 
Manager to be known as the lost and found custodian. VA Form 3771, 
Record of Lost or Found Article, will be used for recording articles of 
any personal property lost or found. Every effort will be made to 
determine rightful ownership of found articles and to recover items 
which have been reported lost. Currency, including readily negotiable 
instruments, found and delivered to the lost and found custodian will 
not be retained beyond the official closing hour. The currency or 
negotiable instruments will be delivered to the agent cashier before the 
close of business. Individuals claiming found articles will furnish 
complete identification and satisfy the facility authority of rightful 
ownership. Where more than one individual claims ownership the matter 
will be referred to the Manager for decision. All articles of personal 
property remaining unclaimed for 90 days or more will be disposed of in 
accordance with Sec. 12.8.

[21 FR 3875, June 6, 1956]



PART 13_VETERANS BENEFITS ADMINISTRATION, FIDUCIARY ACTIVITIES--Table 
of Contents




Sec.
13.1 Authority.
13.2 Field examinations.
13.3 State legislation.
13.55 Veterans Service Center Manager to select and appoint or recommend 
          for appointment the person or legal entity to receive 
          Department of Veterans Affairs benefits in a fiduciary 
          capacity.
13.56 Direct payment.
13.57 Payment to the wife or husband of incompetent veteran.
13.58 Legal custodian.
13.59 Court-appointed fiduciary.
13.61 Payment to the chief officer of institution.
13.62 Payment to bonded officer of Indian reservation.
13.63 Payment to custodian-in-fact.
13.64 Fiduciary commissions.
13.69 Limitation of beneficiaries to individual fiduciary.
13.70 Apportionment of benefits to dependents.
13.71 Payment of cost of veteran's maintenance in institution.
13.72 Release of funds from Personal Funds of Patients.
13.73 Transfer of funds from funds due incompetent beneficiaries.
13.74-13.77 [Reserved]
13.75 Beneficiaries in penal institutions.
13.76 Appeals from Veterans Service Center Manager's determination under 
          38 U.S.C. 5503(b)(2).
13.77 Administrative review of the Veterans Service Center Manager's 
          determination made under 38 U.S.C. 5503(b)(2).
13.100 Supervision of fiduciaries.
13.101 Management and use of estates of minors.
13.102 Accountability of legal custodians.
13.103 Investments by Federal fiduciaries.
13.104 Accounts of court-appointed fiduciaries.
13.105 Surety bonds.
13.106 Investments by court-appointed fiduciaries.
13.107 Accounts of chief officers of public or private institutions.
13.108-13.109 [Reserved]
13.109 Determination of value of estate; 38 U.S.C. 5503(b)(1)(A) and 38 
          U.S.C. 5505.
13.110 Escheat; post fund.
13.111 Claims of creditors.

    Authority: 72 Stat. 1114, 1232, as amended, 1237; 38 U.S.C. 501, 
5502, 5503, 5711, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 13 appear at 61 FR 
7216, Feb. 27, 1996, and 67 FR 46868, July 17, 2002.



Sec. 13.1  Authority.

    The regulations in this part are issued pursuant to 38 U.S.C. 501 to 
reflect action under 38 U.S.C. 512 and to implement 38 U.S.C. 5301, 
5502, 5503, 5711 and 8520. The duties, the delegations of authority, and 
all actions required of the Veterans Service Center Manager

[[Page 531]]

set forth in Sec. Sec. 13.1 through 13.111 inclusive, are to be 
performed under the direction of, and authority vested in, the Director 
of the field facility.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.2  Field examinations.

    (a) Authority to conduct; generally. Field personnel in the Veterans 
Service Center and other employees who are qualified and designated by 
the field facility Director are authorized, when assigned, to conduct 
investigations (field examinations) and examine witnesses upon any 
matter within the jurisdiction of the Department of Veterans Affairs, to 
take affidavits, to administer oaths and affirmations, to certify copies 
of public or private documents and to aid claimants in the preparation 
of claims.
    (b) Scope of field examinations; fiduciary activities. Field 
examinations include but are not limited to the following:
    (1) Matters involving the administration of estates and the welfare 
of beneficiaries of the Department of Veterans Affairs who are under 
legal disability or in need of supervision by the Veterans Service 
Center Manager.
    (2) Matters involving the welfare and needs of dependents of 
incompetent beneficiaries.
    (3) Recovery of amounts due the Government or General Post Fund 
under laws administered by the Department of Veterans Affairs.

[40 FR 54247, Nov. 21, 1975, as amended at 67 FR 46869, July 17, 2002]



Sec. 13.3  State legislation.

    Field facility Directors are authorized to cooperate with the 
affiliated organizations, legislative committees, and through the 
General Counsel with local and State bar associations, to the end that 
deficiencies of the State laws relating to Department of Veterans 
Affairs operations may be removed. No action to commit the Department of 
Veterans Affairs regarding any proposed legislation relating to 
fiduciary matters will be taken without the approval of the Under 
Secretary for Benefits or designee.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.55  Veterans Service Center Manager to select and appoint or 

recommend for appointment the person or legal entity to receive 
Department of Veterans 
          Affairs benefits in a fiduciary capacity.

    (a) Authority. The Veterans Service Center Manager is authorized to 
select and appoint (or in the case of a court-appointed fiduciary, to 
recommend for appointment) the person or legal entity best suited to 
receive Department of Veterans Affairs benefits in a fiduciary capacity 
for a beneficiary who is mentally ill (incompetent) or under legal 
disability by reason of minority or court action, and beneficiary's 
dependents.
    (b) Payees. Authorized payees include:
    (1) The beneficiary (Sec. 13.56(c));
    (2) The beneficiary under supervision (supervised direct payment) 
(Sec. 13.56 (a) and (b));
    (3) The wife or husband of an incompetent veteran (Sec. 13.57);
    (4) The legal custodian of a beneficiary's Department of Veterans 
Affairs benefits (Sec. 13.58);
    (5) A court-appointed fiduciary of a beneficiary (Sec. 13.59);
    (6) The chief officer of the institution in which the veteran is 
receiving care and treatment (Sec. 13.61);
    (7) The bonded officer of an Indian reservation (Sec. 13.62);
    (8) A custodian-in-fact of the beneficiary (Sec. 13.63);
    (9) Dependents of the veteran by an apportioned award (Sec. 13.70).
    (c) Certification. The Veterans Service Center Manager's 
certification is authority to make payments to the designated payee.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.56  Direct payment.

    (a) Veterans. Department of Veterans Affairs benefits payable to a 
veteran rated incompetent may be paid directly to the veteran in such 
amount as the Veterans Service Center Manager determines the veteran is 
able to manage with continuing supervision by the Veterans Service 
Center Manager, provided a fiduciary is not otherwise required. If it is 
determined that an amount less than the full entitlement is to be paid, 
such payment shall be for

[[Page 532]]

a limited period of time, generally 6 months, but in no event to exceed 
1 year, after which full payment will be made and any funds withheld as 
a result of this section will be released to the veteran, if not 
otherwise payable to a fiduciary.
    (b) Other adults. Department of Veterans Affairs benefits payable to 
an adult beneficiary who has been rated or judicially declared 
incompetent may be paid directly to the beneficiary in such amounts as 
the Veterans Service Center Manager determines the beneficiary is able 
to manage with continuing supervision by the Veterans Service Center 
Manager, provided a fiduciary is not otherwise required. If it is 
determined that an amount less than the full entitlement is to be paid, 
such payment shall be for a limited period of time, generally 6 months, 
but in no event to exceed 1 year, after which full payment will be made 
and any funds withheld as a result of this section will be released to 
the beneficiary, if not otherwise payable to a fiduciary.
    (c) Minors. Department of Veterans Affairs benefits payable to a 
minor:
    (1) May be paid direct when:
    (i) Arising in connection with a program of education or training 
under 38 U.S.C. ch. 35.
    (ii) The Veterans Service Center Manager determines it would be in 
the minor's best interests.
    (2) Will be paid direct when:
    (i) The beneficiary's only legal disability is minority and he or 
she is in active military, naval, or air service, or the widow or 
widower of a veteran.
    (ii) The minor is deemed otherwise emancipated under State law.

[40 FR 54247, Nov. 21, 1975, as amended at 42 FR 34282, July 5, 1977; 67 
FR 46869, July 17, 2002]



Sec. 13.57  Payment to the wife or husband of incompetent veteran.

    Compensation, pension or emergency officers' retirement pay of a 
veteran rated or judicially declared incompetent, may be paid to the 
veteran's spouse, provided the spouse is qualified to administer the 
funds payable and agrees to use the amounts paid for the veteran and the 
veteran's dependents, if any.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.58  Legal custodian.

    (a) Authority. The Veterans Service Center Manager is authorized to 
make determinations as to the person or legal entity to be appointed 
legal custodian to receive Department of Veterans Affairs payments on 
behalf of a beneficiary who is incompetent or under legal disability by 
reason of minority or court action. In the absence of special 
circumstances, the person or legal entity to be appointed legal 
custodian will be the person or legal entity caring for and/or having 
custody of the beneficiary or the beneficiary's estate.
    (b) Payment to. Department of Veterans Affairs benefits may be paid 
to a legal custodian subject to the following conditions:
    (1) The Veterans Service Center Manager has determined that it would 
be in the best interests of the beneficiary to appoint a legal 
custodian.
    (2) The proposed legal custodian is qualified to administer the 
benefits payable and will agree to:
    (i) Apply the benefits paid for the best interests of the 
beneficiary,
    (ii) Invest surplus funds as provided by Department of Veterans 
Affairs regulations,
    (iii) Furnish, upon request, evidence of compliance with agreement 
as to usage and investment of Department of Veterans Affairs benefits, 
and
    (iv) Inform the Veterans Service Center Manager of any change in the 
beneficiary's estate or any other circumstances that might affect 
entitlement or the manner in which payments are to be made.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.59  Court-appointed fiduciary.

    (a) Payment to. Any Department of Veterans Affairs benefit may be 
paid to the fiduciary appointed by a State court for a beneficiary who 
is a minor, or incompetent or under other legal disability adjudged by a 
court of competent jurisdiction. Formal or informal accountings may be 
required from such fiduciaries, with or without judicial proceedings.
    (b) Veterans Service Center Manager's responsibility. The Veterans 
Service Center Manager shall: (1) Determine

[[Page 533]]

and recommend to the Regional Counsel the person or legal entity best 
fitted for appointment as State court fiduciary for the particular 
beneficiary. Necessary legal action will be taken by the Regional 
Counsel.
    (2) Upon advice from the Regional Counsel that the fiduciary has 
been appointed, issue appropriate certification thereof so that payment 
of benefits can be made to such fiduciary.

[40 FR 54247, Nov. 21, 1975]



Sec. 13.61  Payment to the chief officer of institution.

    The Veterans Service Center Manager may authorize the payment of all 
or part of the pension, compensation or emergency officers' retirement 
pay payable in behalf of a veteran rated incompetent by the Department 
of Veterans Affairs to the chief officer of the institution wherein the 
veteran is being furnished hospital treatment or institutional, nursing 
or domiciliary care, for the veteran's use and benefit, when the 
Veterans Service Center Manager has determined such payment (called an 
institutional award) will adequately provide for the needs of the 
veteran and obviate need for appointment of another type of fiduciary.

[40 FR 54248, Nov. 21, 1975]



Sec. 13.62  Payment to bonded officer of Indian reservation.

    Any benefits due an incompetent adult or minor Indian, who is a 
recognized ward of the Government, may be awarded to the superintendent 
or other bonded officer designated by the Secretary of the Interior to 
receive funds under 25 U.S.C. 14.

[40 FR 54248, Nov. 21, 1975]



Sec. 13.63  Payment to custodian-in-fact.

    All or any part of a benefit due a minor or incompetent adult, 
payment of which is suspended or withheld because payment may not be 
properly made to an existing fiduciary, may be paid temporarily to the 
person having custody and control of the beneficiary.

[36 FR 19023, Sept. 25, 1971]



Sec. 13.64  Fiduciary commissions.

    Generally, a VA appointed fiduciary is to be encouraged to serve 
without fee.
    (a) Authority. The Veterans Service Center Manager is authorized to 
determine when a commission is necessary in order to obtain the services 
of a fiduciary, except that the Veterans Service Center Manager may not 
authorize a commission to a fiduciary who receives any other form of 
remuneration or payment in connection with rendering fiduciary services 
on behalf of the beneficiary. Necessity is established only if the 
beneficiary's best interest would be served by the appointment of a 
qualified professional, or, if a qualified professional is not 
available, the proposed fiduciary is the only qualified person available 
and is not willing to serve without a fee.
    (b) Amount; notice to beneficiary. The Veterans Service Center 
Manager shall authorize a fiduciary to whom a commission is payable 
under paragraph (a) of this section to deduct from the beneficiary's 
estate a reasonable commission for fiduciary services rendered. The 
commission for any year may not exceed 4 percent of the monetary 
benefits paid by VA on behalf of the beneficiary to the fiduciary during 
that year; a year being the normal 12 month period following the 
anniversary date of appointment. The Veterans Service Center Manager 
shall furnish appropriate notice to the beneficiary, either directly or 
through the fiduciary, that a commission is payable.
    (c) Persons who may be excluded. Commissions may not be authorized 
to dependents of the beneficiary or other close relatives acting in a 
fiduciary capacity on behalf of the beneficiary, except under 
extraordinary circumstances.

(Authority: 38 U.S.C. 5502; Pub. L. 98-223)

[51 FR 26157, July 21, 1986]



Sec. 13.69  Limitation of beneficiaries to individual fiduciary.

    For purposes of payment of Department of Veterans Affairs benefits, 
the number of beneficiaries for whom an individual fiduciary may act 
will be limited to the number the fiduciary

[[Page 534]]

may be reasonably expected to properly serve. When, in the judgment of 
the Veterans Service Center Manager, a fiduciary has been appointed or 
is seeking appointment in a case in excess of that number, the Veterans 
Service Center Manager will initiate action to obtain a suitable 
substitute fiduciary.

[40 FR 54248, Nov. 21, 1975]



Sec. 13.70  Apportionment of benefits to dependents.

    (a) Incompetent veterans being furnished hospital treatment, 
institutional or domiciliary care by United States or political 
subdivision thereof. When compensation, pension or emergency officers' 
retirement pay is payable in behalf of a veteran who is incompetent or 
under other legal disability by court action, the Veterans Service 
Center Manager may recommend such apportionment to or in behalf of the 
veteran's spouse, child or dependent parent as may be necessary to 
provide for their needs.
    (b) Dependent parents. When the compensation of a veteran paid to 
his or her fiduciary includes an additional amount for a dependent 
parent or parents and the fiduciary neglects or refuses to make an 
equivalent contribution for their support, the Veterans Service Center 
Manager may recommend the apportionment to the parent or parents of the 
additional amount.
    (c) Payments withheld because of fiduciary's failure to properly 
administer veteran's estate. When payments of compensation, pension or 
emergency officers' retirement pay in behalf of a veteran have been 
stopped because of the fiduciary's failure or inability to properly 
account or otherwise administer the estate, the Veterans Service Center 
Manager may recommend the apportionment to the veteran's spouse, child 
or dependent parent of any benefit not paid under an institutional award 
or to a custodian-in-fact.

(Authority: 38 U.S.C. 501, 512, 5502, 5503)

[40 FR 54248, Nov. 21, 1975, as amended at 51 FR 26158, July 21, 1986; 
66 FR 48561, Sept. 21, 2001; 68 FR 34543, June 10, 2003]



Sec. 13.71  Payment of cost of veteran's maintenance in institution.

    (a) The payment of part of compensation, pension or emergency 
officers' retirement pay for the cost of a veteran's hospital treatment, 
institutional or domiciliary care in an institution operated by a 
political subdivision of the United States may be authorized as provided 
in paragraph (b) of this section when:
    (1) The veteran is rated incompetent by the Department of Veterans 
Affairs.
    (2) It has been determined the veteran is legally liable for the 
cost of his or her maintenance, and
    (3) The institution's representative has asserted or probably will 
assert a claim for full maintenance costs.
    (b) Subject to these conditions and the further condition that the 
responsible official of the institution or political subdivision will 
agree not to assert against Department of Veterans Affairs benefits any 
further claim for maintenance during the veteran's lifetime, the 
Veterans Service Center Manager may agree with such official to the 
payment of the veteran's benefits through an institutional award to be 
applied to:
    (1) A monthly amount determined by the Veterans Service Center 
Manager to be needed for the veteran's personal use,
    (2) An amount to be agreed upon to be accumulated to provide for the 
veteran's rehabilitation upon release from the institution, and
    (3) So much of the amount of the benefit as remains not exceeding 
the amount the Veterans Service Center Manager determines to be the 
proper charge as fixed by statute or administrative regulation, to the 
cost of the veteran's maintenance.
    (c) Upon execution of an agreement as provided in paragraph (b) of 
this section, the Veterans Service Center Manager will certify the total 
amount to be released to the chief officer of the institution.

(Authority: 38 U.S.C. 501, 512, 5502, 5503)

[40 FR 54248, Nov. 21, 1975, as amended at 51 FR 26158, July 21, 1986; 
66 FR 48561, Sept. 21, 2001; 67 FR 46869, July 17, 2002; 68 FR 34543, 
June 10, 2003]

[[Page 535]]



Sec. 13.72  Release of funds from Personal Funds of Patients.

    Veterans Service Center Managers may authorize release of funds from 
Personal Funds of Patients for the needs of veterans and their 
dependents, including amounts fixed by statute or administrative 
regulations as the cost of current maintenance of veterans in 
institutions of the United States or a political subdivision thereof 
other than Department of Veterans Affairs institutions.

[40 FR 54248, Nov. 21, 1975]



Sec. 13.73  Transfer of funds from funds due incompetent beneficiaries.

    Veterans Service Center Managers may, when required for the benefit 
of the veteran and/or the veteran's dependents, authorize the transfer 
of amounts credited to veterans in Funds Due Incompetent Beneficiaries 
to Department of Veterans Affairs Personal Funds of Patients accounts or 
to chief officers of non-Department of Veterans Affairs institutions for 
the accounts of institutionalized veterans.

[40 FR 54248, Nov. 21, 1975]



Sec. Sec. 13.74-13.77  [Reserved]



Sec. 13.100  Supervision of fiduciaries.

    (a) Federal fiduciaries. In Federal fiduciary cases, the Veterans 
Service Center Manager may, when he or she deems it necessary for the 
protection of the beneficiary's interests:
    (1) Require an accounting, formal or informal, of Department of 
Veterans Affairs benefits paid.
    (2) Terminate the appointment of a Federal fiduciary and appoint a 
successor Federal fiduciary.


(Authority: 38 U.S.C. 5502)

    (b) Court-appointed fiduciaries. In court-appointed fiduciary cases, 
the Veterans Service Center Manager will take such informal action as 
may be necessary to assure that the needs of the beneficiary are 
provided for and Department of Veterans Affairs benefits are prudently 
administered and adequately protected.


(Authority: 38 U.S.C. 501)

    (c) Unsatisfactory conditions. In any case where a fiduciary fails 
to render a satisfactory account or has collected or paid, or is 
attempting to collect or pay, fees, commissions, or allowances that are 
illegal or inequitable or in excess of those allowed by law, or has 
failed to use Department of Veterans Affairs funds for the benefit of 
the beneficiary or the beneficiary's dependents, or has otherwise failed 
or neglected to properly execute the duties of his or her trust, and 
informal efforts by the Veterans Service Center Manager to correct the 
situation prove unsuccessful, the case will be referred to the Regional 
Counsel. In such cases the Veterans Service Center Manager may have all 
Department of Veterans Affairs benefits suspended.


(Authority: 38 U.S.C. 5502)

    (d) Misappropriation, embezzlement or violation of Federal statutes. 
When the evidence indicates a prima facie case of misappropriation, 
embezzlement or violation of the Federal statutes, the matter will be 
submitted to the Regional Counsel for review and, if appropriate, the 
Regional Counsel's referral to the U.S. Attorney.

(Authority: 38 U.S.C. 6101)

[40 FR 54249, Nov. 21, 1975]



Sec. 13.101  Management and use of estates of minors.

    Department of Veterans Affairs benefits payable in behalf of minors 
should be used for their benefit. Such funds should be expended only to 
the extent the person or persons responsible for their needs are unable 
to provide for them, except those derived from payments under 38 U.S.C. 
ch. 35.

(Authority: 38 U.S.C. 501)

[28 FR 10751, Oct. 5, 1963]



Sec. 13.102  Accountability of legal custodians.

    (a) Institutionalized veterans without spouse or child. The legal 
custodian of VA benefits of an incompetent veteran who has neither 
spouse nor child and who is being furnished hospital treatment or 
institutional or domiciliary care by the United States or a political 
subdivision thereof, will account upon

[[Page 536]]

request to VA for funds received from VA for the beneficiary and will 
submit a statement of all other income received and the total assets 
from any source held for the beneficiary.
    (b) All other beneficiaries. Compliance with the agreement as to 
benefit use and any authorized modifications due to changed need, proof 
of existence of funds surplus to immediate needs and proper investment 
thereof, if appropriate, will be established by personal contact.

(Authority: 38 U.S.C. 501)

[36 FR 19025, Sept. 25, 1971,as amended at 53 FR 20618, June 6, 1988]



Sec. 13.103  Investments by Federal fiduciaries.

    (a) Type authorized. VA benefits paid to a Federally appointed 
fiduciary other than a spouse payee or an institutional award payee may 
be invested only in United States savings bonds, or in interest or 
dividend-paying accounts in State or Federally insured institutions, 
whichever is to the beneficiary's advantage. Department of Veterans 
Affairs benefits that are paid on behalf of an incompetent veteran to an 
institution via an institutional award payment arrangement may not be 
invested.
    (b) Registration. (1) When funds are invested in bonds, the bonds 
will be registered in this form: (Beneficiary's Name), (Social Security 
No.), under custodianship by designation of the Department of Veterans 
Affairs.
    (2) When funds are invested in interest or dividend-paying accounts 
in State or Federally insured institutions, the account will be 
registered in this form: (Beneficiary's name), by (Fiduciary's Name), 
Federal fiduciary.
    (c) Pre-need burial arrangements. Federally appointed fiduciaries, 
other than institutional award payees, may use a beneficiary's funds 
derived from VA benefits to make deposits into, or purchase, a pre-need 
burial plan or burial insurance on behalf of the beneficiary, if to do 
so is in the beneficiary's interest.

(Authority: 38 U.S.C. 501)

[53 FR 20619, June 6, 1988]



Sec. 13.104  Accounts of court-appointed fiduciaries.

    (a) Requirement to account; notices of filings and hearings. 
Accounts may be required from court-appointed fiduciaries as provided by 
State law, but in no event less frequently than once every 3 years. 
Arrangements will be made with the courts whereby notices of filing of 
all petitions, accounts, etc., and of hearings on same, relative to 
court-appointed fiduciary cases wherein the Department of Veterans 
Affairs is an interested party, will be sent to the Veterans Service 
Center Manager for review, distribution and such action as may be 
appropriate. Matters which require legal action will be referred to the 
Regional Counsel, and will include any matter in which the Department of 
Veterans Affairs has any objections to offer.
    (b) Fiduciary and beneficiary in jurisdiction other than a State of 
the United States. Accounts will not be required, in the discretion of 
the Veterans Service Center Manager, in cases where the fiduciary and 
beneficiary permanently reside in a jurisdiction other than a State of 
the United States, the District of Columbia, the Commonwealth of Puerto 
Rico or the Republic of the Philippines, and the fiduciary appointment 
was made in said jurisdiction.

[40 FR 54250, Nov. 21, 1975]



Sec. 13.105  Surety bonds.

    (a) Federal fiduciaries. (1) The Veterans Service Center Manager may 
require a legal custodian, custodian-in-fact or chief officer of a 
private institution recognized to administer Department of Veterans 
Affairs benefits on behalf of a beneficiary, to furnish a corporate 
surety bond in an amount determined to be sufficient to protect the 
interest of the beneficiary. Such bond shall run to the Secretary of 
Veterans Affairs for the use and benefit of the beneficiary.
    (2) The Veterans Service Center Manager may require a legal 
custodian to furnish an agreement in lieu of a surety bond or additional 
surety bond when funds are deposited in an interest or dividend-paying 
account in a State or federally insured institution. The agreement will 
provide that the legal

[[Page 537]]

custodian and institution agree that all funds received from the 
Department of Veterans Affairs on behalf of the beneficiary, which have 
been or will be deposited by the legal custodian in the account, will be 
withdrawn only with the written consent of the Veterans Service Center 
Manager or designee.
    (b) Substitution of surety; claims against defunct companies. If any 
surety company is placed in receivership or ceases to do business in the 
particular State, the Veterans Service Center Manager will take the 
necessary action to have proper bonds substituted in Federal fiduciary 
cases and refer the matter to the Regional Counsel for such other action 
as may be appropriate.

(Authority: 38 U.S.C. 501)

[40 FR 54250, Nov. 21, 1975]



Sec. 13.106  Investments by court-appointed fiduciaries.

    The Veterans Service Center Manager will review and to the extent 
possible determine the legality and prudence of investments involving 
Department of Veterans Affairs income or estate. It is Department of 
Veterans Affairs policy to invest income or estate derived from 
Department of Veterans Affairs benefits only in legal investments which 
have safety, assured income, stability of principal and ready 
convertibility for the requirements of the beneficiary and his or her 
dependents. When notice of a contemplated or actual illegal or imprudent 
investment comes to the attention of the Veterans Service Center 
Manager, he or she will take remedial action to protect the 
beneficiary's estate. Cases in which it becomes necessary to institute 
court action will be referred to the Regional Counsel.

(Authority: 38 U.S.C. 501)

[40 FR 54250, Nov. 21, 1975]



Sec. 13.107  Accounts of chief officers of public or private institutions.

    (a) Department of Veterans Affairs benefits. The chief officer of an 
institution, other than a Federal institution, shall, when requested, 
render an account to the Department of Veterans Affairs for funds 
received from the Department of Veterans Affairs on account of an 
incompetent veteran.
    (b) All income and assets. The chief officer of the aforementioned 
institutions shall, when requested, furnish a statement of all income 
received in behalf of a Department of Veterans Affairs beneficiary under 
legal disability and the total assets held for the beneficiary.

(Authority: 38 U.S.C. 5502)

[36 FR 19025, Sept. 25, 1971, as amended at 68 FR 34543, June 10, 2003]



Sec. Sec. 13.108-13.109  [Reserved]



Sec. 13.110  Escheat; post fund.

    (a) Escheat; 38 U.S.C. 5502(e). Upon death of a beneficiary for whom 
payment of Department of Veterans Affairs benefits was made to a court-
appointed fiduciary, legal custodian, custodian-in-fact, or by 
institutional award, the fiduciary (or the deceased beneficiary's 
personal representative) shall, upon request, account for and return to 
the Department of Veterans Affairs any remaining assets derived from 
Department of Veterans Affairs benefits which would under State law 
escheat to the State, less legal expenses of any administration 
necessary to determine that an escheat is in order.
    (b) General Post Fund; 38 U.S.C. 5220(a). Upon the death of a 
veteran intestate while a member or patient in any facility while being 
furnished care or treatment therein by the Department of Veterans 
Affairs, who is not survived by a spouse, next of kin, or heirs entitled 
under the laws of the veteran's domicile, the veteran's fiduciary, if 
any, or the veteran's personal representative shall account for and turn 
over to the Department of Veterans Affairs all personal property, 
including money and chooses in action owned by the veteran at the time 
of his or her death. (See also Sec. 14.514(c) of this chapter.)
    (c) Refusal of fiduciary or personal representative to cooperate. If 
the fiduciary or personal representative, if any, refuses to voluntarily 
comply with the provisions of paragraph (a) or (b) of

[[Page 538]]

this section, the Veterans Service Center Manager will submit a complete 
report to the Regional Counsel.

[36 FR 19025, Sept. 25, 1971, as amended at 40 FR 54250, Nov. 21, 1975]



Sec. 13.111  Claims of creditors.

    Under 38 U.S.C. 5301(a), payments made to or on account of a 
beneficiary under any of the laws relating to veterans are exempt, 
either before or after receipt by the beneficiary, from the claims of 
creditors and State and local taxation. The fiduciary should invoke this 
defense where applicable. If the fiduciary does not do so, the Veterans 
Service Center Manager should refer the matter to the Regional Counsel 
for appropriate action.

[40 FR 54251, Nov. 21, 1975]



PART 14_LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS
--Table of Contents




Sec.
14.500 Functions and responsibilities of General Counsel.
14.501 Functions and responsibilities of Regional Counsels.
14.502 Requests for legal opinions from Central Office.
14.503 Requests for legal advice and assistance in other than domestic 
          relations matters.
14.504 Domestic relations questions, authority and exceptions.
14.505 Submissions.
14.507 Opinions.

       Litigation (Other Than Under the Federal Tort Claims Act); 
                             Indemnification

14.514 Suits by or against United States or Department of Veterans 
          Affairs officials; indemnification of Department of Veterans 
          Affairs employees.
14.515 Suits involving loan guaranty matters.
14.516 Escheat and post fund cases.
14.517 Cases affecting the Department of Veterans Affairs generally.
14.518 Litigation involving beneficiaries in custody of Department of 
          Veterans Affairs employees acting in official capacity.

                               Prosecution

14.560 Procedure where violation of penal statutes is involved including 
          those offenses coming within the purview of the Assimilative 
          Crime Act (18 U.S.C. 13).
14.561 Administrative action prior to submission.
14.562 Collections or adjustments.

                           Federal Tort Claims

14.600 Federal Tort Claims Act--general.
14.601 Investigation and development.
14.602 Requests for medical information.
14.603 Disposition of claims.
14.604 Filing a claim.
14.605 Suits against Department of Veterans Affairs employees arising 
          out of a wrongful act or omission or based upon medical care 
          and treatment furnished in or for the Veterans Health 
          Administration.

  Administrative Settlement of Tort Claims Arising in Foreign Countries

14.615 General.
14.616 Form and place of filing claim.
14.617 Disposition of claims.

           Claims for Damage to or Loss of Government Property

14.618 Collection action.

              Claims for Cost of Medical Care and Services

14.619 Collection action.

Representation of Department of Veterans Affairs Claimants; Recognition 
 of Organizations, Accredited Representatives, Attorneys, Agents; Rules 
    of Practice and Information Concerning Fees, 38 U.S.C. 5901-5905

14.626 Purpose.
14.627 Definitions.
14.628 Recognition of organizations.
14.629 Requirements for accreditation of service organization 
          representatives; agents; and attorneys.
14.630 Authorization for a particular claim.
14.631 Powers of attorney.
14.632 Determination of qualifications.
14.633 Termination of accreditation of agents, attorneys, and 
          representatives.
14.634 Banks or trust companies acting as guardians.
14.635 Office space and facilities.

   Expanded Remote Access to Computerized Veterans Claims Records by 
                       Accredited Representatives

14.640 Purpose.
14.641 Qualifications for access.
14.642 Utilization of access.
14.643 Disqualification.

                            Personnel Claims

14.664 Scope of authority and effective date.
14.665 Claims.
14.666 Regional Counsel responsibility.
14.667 Claims payable.
14.668 Disposition of claims.

[[Page 539]]

14.669 Fees of agents or attorneys; penalty.

                        Commitments--Fiduciaries

14.700 Court cost and expenses; commitment, restoration, fiduciary 
          appointments.
14.701 Commitment and restoration proceedings.
14.702 Medical testimony in commitment or restoration proceedings.
14.703 Costs in commitment or restoration proceedings.
14.704 Authorization of transportation necessary for commitment of a 
          veteran beneficiary.
14.705 Authority to file petitions for appointment of fiduciaries in 
          State courts.
14.706 Legal services in behalf of beneficiaries.
14.707 Authorization of transportation of a veteran beneficiary for 
          appointment of a fiduciary.
14.708 Costs and other expenses incident to appointment of fiduciary.
14.709 Surety bonds; court-appointed fiduciary.

 Testimony of Department Personnel and Production of Department Records 
                          in Legal Proceedings

14.800 Purpose.
14.801 Applicability.
14.802 Definitions.
14.803 Policy.
14.804 Factors to consider.
14.805 Contents of a demand or request.
14.806 Scope of testimony or production.
14.807 Procedure when demand or request is made.
14.808 Expert or opinion testimony.
14.809 Demands or requests in legal proceedings for records protected by 
          confidentiality statutes.
14.810 Fees.

    Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 512, 
515, 5502, 5902-5905; 28 CFR part 14, appendix to part 14, unless 
otherwise noted.

    Source: 19 FR 5552, Aug. 31, 1954, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 14 appear at 61 FR 
7216, Feb. 27, 1996.



Sec. 14.500  Functions and responsibilities of General Counsel.

    The General Counsel is responsible to the Secretary for the 
following:
    (a) All litigation arising in, or out of, the activities of the 
Department of Veterans Affairs or involving any employee thereof in his 
or her official capacity.
    (b) All interpretative legal advice involving construction or 
application of laws, including statutes, regulations, and decisional as 
well as common law.
    (c) All legal services, advice and assistance required to implement 
any law administered by the Department of Veterans Affairs.
    (d) All delegations of authority and professional guidance required 
to meet these responsibilities.
    (e) Maintenance of a system of field offices capable of providing 
legal advice and assistance to all Department of Veterans Affairs field 
installations and acting for the General Counsel as provided by 
Department of Veterans Affairs Regulations and instructions, or as 
directed by the General Counsel in special cases. This includes 
cooperation with U.S. Attorneys in all civil and criminal cases 
pertaining to the Department of Veterans Affairs and reporting to the 
U.S. Attorneys, as authorized, or to the General Counsel, or both, 
criminal matters coming to the attention of the Regional Counsel.
    (f) Other matters assigned.

[42 FR 41410, Aug. 17, 1977]



Sec. 14.501  Functions and responsibilities of Regional Counsels.

    (a) Functions and responsibilities of the Regional Counsels are 
those set forth in this part and all other matters assigned by the 
General Counsel.
    (b) In any matter within the jurisdiction of the General Counsel, 
delegated or otherwise assigned, the Regional Counsel and designated 
staff attorneys are authorized to conduct investigations, examine 
witnesses, take affadavits, administer oaths and affirmations and 
certify copies of public or private documents.
    (c) The Regional Counsel is authorized to, and shall, under the 
guidance of the General Counsel, provide legal services, advice and 
assistance to Department of Veterans Affairs installations within the 
district assigned. In any area of regulatory, assigned or delegated 
responsibility, the Regional Counsel may delegate to staff members or 
other Department of Veterans Affairs attorneys authority to perform, to 
the extent specified, any legal function under the professional 
direction of the Regional Counsel. Conversely, the Regional Counsel may 
modify, suspend,

[[Page 540]]

or rescind any authority delegated hereunder.
    (d) The Regional Counsel is authorized to cooperate with affiliated 
organizations, legislative committees, and with local and State bar 
associations to the end that any State law deficiencies relating to 
Department of Veterans Affairs operations may be removed. No commitment 
as to proposed legislation will be made without the approval of the 
General Counsel.
    (e) In any case wherein the Regional Counsel is authorized to take 
legal action and payment of costs and necessary expenses incident 
thereto are involved, the administration requesting such action will pay 
such cost and expenses. Where it is impractical for the Regional Counsel 
to perform the legal service because of cost, distance, etc., the 
customary fee for the service rendered by a local attorney employed by 
the Regional Counsel will be borne by the administration requesting such 
action.
    (f) The jurisdictions and addresses of Regional Counsels are as 
follows:
    (1) Region 1: (JURISDICTION) Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island; (ADDRESS) JFK Federal Bldg., Room E213, Boston, 
MA 02203.
    (2) Region 2: (JURISDICTION) New Jersey, Metropolitan New York City; 
(ADDRESS) 800 Poly Place, Building 14, Brooklyn, NY 11209.
    (3) Region 3: (JURISDICTION) District of Columbia; Fairfax, 
Virginia; Arlington, Virginia; Alexandria, Virginia; Martinsburg, West 
Virginia; and Maryland; (ADDRESS) 849 International Drive, Suite 200, 
Linthicum, MD 21090.
    (4) Region 4: (JURISDICTION) Pennsylvania, Delaware; (ADDRESS) 1000 
Liberty Ave., Pittsburgh, PA 15222.
    (5) Region 5: (JURISDICTION) Georgia, South Carolina; (ADDRESS) 730 
Peachtree Street, NE., Atlanta, GA 30365.
    (6) Region 6: (JURISDICTION) Florida, Puerto Rico; (ADDRESS) P.O. 
Box 5002, Building 22, Room 333, Bay Pines, FL 33504.
    (7) Region 7: (JURISDICTION) Ohio, West Virginia (excluding 
Martinsburg, West Virginia); (ADDRESS) 1240 East Ninth Street, Room 
1225, Cleveland, OH 44199.
    (8) Region 8: (JURISDICTION) Arkansas, Tennessee; (ADDRESS) Federal 
Courthouse Annex, 110 9th Ave., S., Nashville, TN 37203.
    (9) Region 9: (JURISDICTION) Alabama, Mississippi; (ADDRESS) 1500 E. 
Woodrow Wilson Dr., Jackson, MS 39216.
    (10) Region 10: (JURISDICTION) Illinois, Iowa; (ADDRESS) VA Medical 
Center, Bldg. 50, P. O. Box 127, Hines, IL 60141.
    (11) Region 11: (JURISDICTION) Michigan, Wisconsin; (ADDRESS) 
Patrick V. McNamara Federal Bldg., Suite 1460, 477 Michigan Ave., 
Detroit, MI 48226.
    (12) Region 12: (JURISDICTION) Kansas, Missouri, Nebraska; (ADDRESS) 
1 Jefferson Barracks Drive, St. Louis, MO 63125-4185.
    (13) Region 13: (JURISDICTION) Oklahoma, Northern Texas; (ADDRESS) 
1400 N. Valley Mills Dr., Waco, TX 76799.
    (14) Region 14: (JURISDICTION) Louisiana, Southern Texas; (ADDRESS) 
6900 Almeda Road, Houston, TX 77030.
    (15) Region 15: (JURISDICTION) Minnesota, North Dakota, South 
Dakota; (ADDRESS) VA Medical Center, One Veterans Drive, Bldg. 73, 
Minneapolis, MN 55417.
    (16) Region 16: (JURISDICTION) Colorado, Wyoming, Utah, Montana; 
(ADDRESS) Box 25126, 155 Van Gordon Street, Denver, CO 80225.
    (17) Region 17: (JURISDICTION) Lower California; (ADDRESS) 11000 
Wilshire Blvd., Los Angeles, CA 90024.
    (18) Region 18: (JURISDICTION) Upper California, Hawaii, Central and 
Northern Nevada, and Philippine Islands; (ADDRESS) VA Medical Center, 
4150 Clement Street, Bldg. 210, San Francisco, CA 94121.
    (19) Region 19: (JURISDICTION) Arizona, Southern Nevada, and New 
Mexico; (ADDRESS) 3225 N. Central Ave., Rm. 305, Phoenix, AZ 85012.
    (20) Region 20: (JURISDICTION) Idaho, Oregon, Washington, Alaska; 
(ADDRESS) 1220 SW Third Ave., Portland, OR 97204.
    (21) Region 21: (JURISDICTION) New York (except Metropolitan New 
York

[[Page 541]]

City), Vermont; (ADDRESS) 120 LeBrun, Buffalo, NY 14215.
    (22) Region 22: (JURISDICTION) Indiana, Kentucky; (ADDRESS) 575 N. 
Pennsylvania Street, Room 309, Indianapolis, IN 46204.
    (23) Region 23: (JURISDICTION) North Carolina, Virginia (excluding 
Fairfax, Arlington, and Alexandria); (ADDRESS) 251 N. Main Street, 
Winston-Salem, NC 27155.

[42 FR 41411, Aug. 17, 1977, as amended at 61 FR 7216, Feb. 27, 1996]



Sec. 14.502  Requests for legal opinions from Central Office.

    Requests for formal legal advice, including interpretation of law or 
regulations, shall be made only by the Secretary, the Deputy Secretary, 
the Assistant Secretaries, the Deputy Assistant Secretaries, and the 
administration head or top staff office official having jurisdiction 
over the particular subject matter, or by a subordinate acting for any 
such official.

[54 FR 34982, Aug. 23, 1989]



Sec. 14.503  Requests for legal advice and assistance in other than 
domestic relations matters.

    (a) Requests from administrative officials in the field for legal 
advice or assistance will be addressed to the appropriate Regional 
Counsel and will be in writing if requested by the Regional Counsel. 
Questions regarding insurance activities at St. Paul and Philadelphia 
should be referred to the Regional Counsel at the respective station. 
Except as to matters referred to in Sec. 14.504(b), the Regional 
Counsel's authority to render legal advice and assistance shall extend 
to the release (unless otherwise instructed by the General Counsel), 
without prior approval of the General Counsel, of opinions on all legal 
questions which are either:
    (1) Wholly controlled by the interpretation or application of the 
laws of the State or States in the district office area, or
    (2) Covered by Department of Veterans Affairs precedents and 
opinions of the General Counsel which the Regional Counsel knows to be 
currently authoritative on the issues involved.

In cases covered by Sec. 14.504(b) and all others not included in 
paragraph (a)(1) or (2) or paragraph (b) of this section, the Regional 
Counsel will prepare a tentative opinion (including identification of 
the benefit sought) and forward it to the General Counsel for review. 
When it is returned, the Regional Counsel will conform the opinion (if 
necessary) to the views of the General Counsel, and release it to the 
requesting official. The Regional Counsel may release any modified 
opinion as the opinion of the General Counsel.
    (b) The Regional Counsel may submit to the General Counsel any legal 
question, opinion, or question pertinent to legal functions, upon which 
the views or advice of the General Counsel are desired. This request 
should set forth the special circumstances, contain a statement of the 
legal implications involved (including any Department of Veterans 
Affairs benefits claimed), set forth the facts out of which they arise, 
and cite any statutes or court decisions readily available, regulations, 
related opinions of the General Counsel and other matters deemed 
pertinent, with appropriate discussion. If any administration will be 
affected, a copy of the reply will be forwarded to that administration 
head.

[42 FR 41411, Aug. 17, 1977, as amended at 54 FR 34982, Aug. 23, 1989]



Sec. 14.504  Domestic relations questions, authority and exceptions.

    (a) Regional Counsels have the same authority with respect to 
domestic relations questions as they do with respect to matters covered 
by Sec. 14.503 except as specifically excluded by the provisions of 
paragraph (a) of that section.
    (b) In the following instances the Regional Counsel, regardless of 
whether State law is wholly controlling or a Department of Veterans 
Affairs precedent is available, will prepare a tentative opinion, 
researched as completely as possible with reasonably available 
facilities, and forward two copies thereof directly to the General 
Counsel for review and disposition (as provided in Sec. 14.503 
respecting other than domestic relations matters):

[[Page 542]]

    (1) Where it is not clear under applicable State law: (i) Whether 
the marriage of a veteran's child or the remarriage of a veteran's widow 
was void without decree of annulment, or (ii) whether an annulment 
decree was rendered by a court with basic authority to render annulment 
decrees;
    (2) When fraud or collusion by either party appears to have 
influenced the granting of an annulment decree;
    (3) Cases in which there are contesting claims;
    (4) Unusual situations, such as those involving proxy marriages, the 
law of two or more jurisdictions or of a foreign country;
    (5) Cases involving difference of opinion between Regional Counsels 
or between a Regional Counsel and the official who submitted the 
question involved.

[42 FR 41411, Aug. 17, 1977]



Sec. 14.505  Submissions.

    All submissions will set forth the question of law on which the 
opinion is desired, together with a complete and accurate summary of 
relevant facts. Files, correspondence, and other original papers will 
not be submitted unless pertinent portions thereof cannot practicably be 
summarized or copies made and attached as exhibits.

[42 FR 41411, Aug. 17, 1977]



Sec. 14.507  Opinions.

    (a) A written legal opinion of the General Counsel involving 
veterans' benefits under laws administered by the Department of Veterans 
Affairs shall be conclusive as to all Department officials and employees 
with respect to the matter at issue, unless there has been a material 
change in controlling statute or regulation, a superseding written legal 
opinion by the General Counsel, or the designation on its face as 
``advisory only'' by the General Counsel or the Deputy General Counsel 
acting as or for the General Counsel. Written legal opinions having 
conclusive effect under this section and not designated as precedent 
opinions pursuant to paragraph (b) of this section shall be considered 
by the Department of Veterans Affairs to be subject to the provisions of 
5 U.S.C. 552(a)(2). Advice, recommendations, or conclusions on matters 
of Government or Department policy, contained within a written legal 
opinion, shall not be binding on Department officials and employees 
merely because of their being contained within a written legal opinion. 
Written legal opinions will be maintained in the Office of the General 
Counsel. Written legal opinions involving veterans' benefits under laws 
administered by the Department of Veterans Affairs, which pertain to a 
particular benefit matter, in addition to being maintained in the Office 
of the General Counsel, will be filed in the individual claim folder.
    (b) A written legal opinion of the General Counsel involving 
veterans' benefits under laws administered by the Department of Veterans 
Affairs which, in the judgment of the General Counsel or the Deputy 
General Counsel acting as or for the General Counsel, necessitates 
regulatory change, interprets a statute or regulation as a matter of 
first impression, clarifies or modifies a prior opinion, or is otherwise 
of significance beyond the matter at issue, may be designated a 
``precedent opinion'' for purposes of such benefits. Written legal 
opinions designated as precedent opinions under this section shall be 
considered by Department of Veterans Affairs to be subject to the 
provisions of 5 U.S.C. 552(a)(1). An opinion designated as a precedent 
opinion is binding on Department officials and employees in subsequent 
matters involving a legal issue decided in the precedent opinion, unless 
there has been a material change in a controlling statute or regulation 
or the opinion has been overruled or modified by a subsequent precedent 
opinion or judicial decision.
    (c) For purposes of this section, the term written legal opinion of 
the General Counsel means a typed or printed memorandum or letter signed 
by the General Counsel or by the Deputy General Counsel acting as or for 
the General Counsel, addressed to an official or officials of the 
Department of Veterans Affairs stating a conclusion on a legal

[[Page 543]]

issue pertaining to Department of Veterans Affairs activities.

(Authority: 38 U.S.C. 501)

[54 FR 5613, Feb. 6, 1989, as amended at 61 FR 68666, Dec. 30, 1996]

       Litigation (Other Than Under the Federal Tort Claims Act); 
                             Indemnification



Sec. 14.514  Suits by or against United States or Department of Veterans 

Affairs officials; indemnification of Department of Veterans Affairs 
employees.

    (a) Suits against United States or Department of Veterans Affairs 
officials. When a suit involving any activities of the Department of 
Veterans Affairs is filed against the United States or the Secretary or 
a suit is filed against any employee of the Department of Veterans 
Affairs in which is involved any official action of the employee, not 
covered by the provisions of Sec. Sec. 14.600 through 14.617, a copy of 
the petition will be forwarded to the General Counsel who will take 
necessary action to obtain the pertinent facts, cooperate with or 
recieve the cooperation of the Department of Justice and, where 
indicated, advise the Regional Counsel of any further action required.
    (b) Counsel and representation of employees. The Department of 
Justice may afford counsel and representation to Government employees 
who are sued individually as a result of the performance of their 
official duties. A civil action commenced in a State court against an 
employee, as the result of an action under color of his or her office, 
may be removed to the applicable Federal District Court. If a suit is 
filed against an employee as the result of the performance of his or her 
official duties, where the provisions of either 28 U.S.C. 2679 or 38 
U.S.C. 7316 are not applicable (see Sec. 14.610), and the employee 
desires to be represented by the U.S. Attorney, the Regional Counsel 
will obtain a written request to this effect from the employee and will 
also obtain an affidavit of the facility Director describing the 
incident in sufficient detail to enable a determination to be made as to 
whether the employee was in the scope of his or her employment at the 
time. These statements, together with a copy of the petition and two 
copies of a summary of pertinent facts, will be sent to the General 
Counsel, who will transmit copies thereof to the Department of Justice 
for appropriate action.
    (c) Indemnification. (1) The Department of Veterans Affairs may 
indemnify a Department of Veterans Affairs employee, who is personally 
named as a defendant in any civil suit in state or Federal court or an 
arbitration proceeding or other proceeding seeking damages against the 
employee personally, where either 28 U.S.C. 2679 or 38 U.S.C. 7316 is 
not applicable, for any verdict, judgment, or other monetary award which 
is rendered against such employee; provided that: the alleged conduct 
giving rise to the verdict, judgment, or award was taken within the 
scope of his or her employment and that such indemnification is in the 
interest of the Department of Veterans Affairs, as determined by the 
Secretary or his designee.
    (2) The Department of Veterans Affairs may settle or compromise a 
personal damage claim against a Department of Veterans Affairs employee, 
in cases where the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316 
are not applicable, by the payment of available funds, at any time; 
provided that: the alleged conduct giving rise to the personal damage 
claim was taken within the employee's scope of employment and that such 
settlement or compromise is in the interest of the Department of 
Veterans Affairs, as determined by the Secretary or his designee.
    (3) Absent exceptional circumstances as determined by the Secretary 
or his designee, the Agency will not entertain a request either to agree 
to indemnify or to settle a personal damage claim before entry of an 
adverse verdict, judgment, or award.
    (4) A Department of Veterans Affairs employee may request 
indemnification to satisfy a verdict, judgment, or award entered against 
that employee. The employee shall submit a written request, with 
appropriate documentation including copies of the verdict, judgment, 
award, or settlement proposal, in a timely manner to the Department of 
Veterans Affairs General

[[Page 544]]

Counsel, who shall make a recommended disposition of the request. Where 
the Department of Veterans Affairs determines it appropriate, the Agency 
shall seek the view of the Department of Justice. The General Counsel 
shall forward the employee request for indemnification, and the 
accompanying documentation, with the General Counsel's recommendation to 
the Secretary for decision.
    (5) Any payment under this section either to indemnify a Department 
of Veterans Affairs employee or to settle or compromise a personal 
damage claim shall be contingent upon the availability of appropriated 
funds of the Department of Veterans Affairs.
    (d) Attorney-client privilege. Attorneys employed by the Department 
of Veterans Affairs who participate in any process utilized for the 
purpose of determining whether the Agency should request the Department 
of Justice to provide representation to a Department employee sued, 
subpoenaed or charged in his individual capacity, or whether attorneys 
employed by the Department of Veterans Affairs should provide assistance 
in the representation of such a Department employee, undertake a full 
and traditional attorney-client relationship with the employee with 
respect to application of the attorney-client privilege. If 
representation is authorized, Department of Veterans Affairs attorneys 
who assist in the representation of an employee also undertake a full 
and traditional attorney-client relationship with the employee with 
respect to the attorney-client privilege. Any adverse information 
communicated by the client-employee to an attorney during the course of 
such attorney-client relationship shall not be disclosed to anyone, 
either inside or outside the Department of Veterans Affairs, other than 
attorneys responsible for representation of the employee, unless such 
disclosure is authorized by the employee.
    (e) Suits by the United States. In any instance wherein direct 
submission to a U.S. Attorney for institution of civil action has been 
authorized by the Department of Justice, the Regional Counsel will 
furnish the U.S. Attorney a complete report of the facts and applicable 
law, documentary evidence, names and addresses of witnesses and, in 
cases wherein Department of Veterans Affairs action has been taken, a 
copy of any pertinent decision rendered. The Regional Counsel will 
forward two copies of such report and of any proposed pleading to the 
General Counsel, and will render any practicable assistance requested by 
the U.S. Attorney.

[42 FR 41411, Aug. 17, 1977, as amended at 54 FR 5614, Feb. 6, 1989]



Sec. 14.515  Suits involving loan guaranty matters.

    (a) In actions for debt, possession or actions similar in substance 
(including title actions) in which Sec. 36.4282 or Sec. 36.4319 of 
this chapter has been complied with, the Regional Counsel is authorized 
to enter the appearance of and represent the Secretary of Veterans 
Affairs as the attorney of record and to file claims for debt in probate 
proceedings without prior reference to the General Counsel. Any such 
action will normally be taken within the time prescribed by law as 
though there had been valid service of process. In all other types of 
cases, the Regional Counsel will not enter an appearance or file any 
pleading on behalf of the Secretary except in imperative emergency until 
authorization is received from the General Counsel after submission of 
all relevant facts. In doubtful cases, the Regional Counsel will request 
instructions from the General Counsel, submitting copy of so much of the 
pleadings or other papers, together with a sufficient recital of the 
facts as will make clear the background, the issues, and the relief 
sought. The submission also will include names and addresses of adverse 
parties and attorneys so that immediate action may be taken if 
injunctive relief seems proper. Where necessary in any case to preserve 
rights which might be lost by default if there had been proper service 
of process, appropriate action will be taken by a special appearance, 
or, in jurisdictions where a special appearance does not serve the 
purpose or under State statute or decisions will constitute a general 
appearance for a later date, by an appearance through amicus curiae, to 
obtain an extension of time, preferably 30 days or more, in

[[Page 545]]

which to appear and plead without prejudice. If not feasible to obtain 
an extension, the Regional Counsel will explain to adverse counsel by 
letter, and personally, if desirable, the necessity of deferring all 
action and will see that the proper judge receives a signed copy of the 
letter before default day. The letter will point out that there is no 
valid service of process on the Secretary of Veterans Affairs but will 
not base the delay on that alone.
    (b) The General Counsel or each Regional Counsel representing the 
General Counsel is the attorney of the Secretary of Veterans Affairs for 
all purposes of 38 U.S.C. 3720 and, as such, is authorized to represent 
the Secretary in any court action or other legal matter arising under 
said statutory provisions. Said authorization is subject to any 
applicable statutes and Executive orders concerning claims of the United 
States. A Regional Counsel may enter appearance in such cases, subject 
to the provisions of Sec. Sec. 36.4282 and 36.4319 of this chapter and 
paragraph (a) of this section. Each Regional Counsel is authorized to 
contract for the employment of attorneys on a fee basis for conducting 
any action arising under guaranty or insurance of loans or direct loans 
by the Department of Veterans Affairs; or for examination and other 
proper services with respect to title to and liens on real and personal 
property, material incident to such activities of the Department of 
Veterans Affairs, when, such employment is deemed by the Regional 
Counsel to be appropriate. the authority delegated to the Regional 
Counsel may be redelegated with the approval of the General Counsel.
    (c) The General Counsel and each Regional Counsel, in carrying out 
their duties as authorized in paragraph (a) or (b) of this section, are 
authorized: (1) To contract for and execute, for and on behalf of the 
Secretary, any bond (and appropriate contract or application therefor) 
which is required in or preliminary to or in connection with any 
judicial proceeding in which the Regional Counsel is attorney for the 
Secretary, and to incur obligations for premiums for such bonds and (2) 
to do all other acts and incur all costs and expenses which are 
necessary or appropriate to further or protect the interests of the 
Secretary in or in connection with prosecuting or defending any cause in 
any court or tribunal within the United States, which cause arises out 
of or incident to the guaranty or insurance of loans, or the making or 
direct loans by the Department of Veterans Affairs, pursuant to 38 
U.S.C. ch. 37.
    (d) Except in an emergency, no Regional Counsel will initiate action 
for appellate review without prior approval by the General Counsel. 
These limitations do not preclude the filing of a motion for a new 
trial, appeal to intermediate court with hearing do novo, the giving of 
notice of appeal, reserving of bills of exception, or any other 
preliminary action in the trial court which may be necessary or 
appropriate to protect or facilitate, the exercise of the right of 
appellate review, nor do they preclude the taking of appropriate steps 
on behalf of the Secretary as appellee (respondent) without prior 
reference to the General Counsel. Upon the conclusion of the trial of a 
case, the Regional Counsel will report the result thereof to the General 
Counsel with recommendation as to seeking appellate review if the result 
reported is adverse to the position of the Department of Veterans 
Affairs in the litigation. The reporting Regional Counsel who recommends 
appellate review will include as a part of the communication, or in 
exhibits attached: (1) A summary of the evidence; (2) a summary of the 
law points to be reviewed; (3) citations of statutes and cases; (4) 
statements of special reasons for recommending appellate review; (5) 
time limitations for the action recommended; (6) requirements, if any, 
respecting printing of the record and briefs; (7) the estimated total 
expenses to be incurred by reason of the appeal, reporting separately 
the estimated costs for printing the brief and record so that authority 
for printing may be granted in accordance with the prescribed procedure, 
MP-1, part II, chapter 9;\1\ and (8) the recommendation or a

[[Page 546]]

statement as to nonrecommendation by the Loan Guaranty Officer.
---------------------------------------------------------------------------

    \1\ Available in any Department of Veterans Affairs facility.

[42 FR 41411, Aug. 17, 1977]



Sec. 14.516  Escheat and post fund cases.

    In any case in which the Department of Veterans Affairs is entitled 
to possession of assets or property under the escheat provisions of 38 
U.S.C. 5502(e), the gifts provisions of 38 U.S.C. ch. 83 or the General 
Post Fund provisions of 38 U.S.C. ch. 85, the Regional Counsel will 
endeavor to obtain possession of such assets or property in any manner 
appropriate under local procedure and practice, other than litigation. 
This procedure would include exploratory inquiry of the person having 
custody or possession of the assets or property for the purpose of 
determining whether the person would be willing to turn over the 
property to the Department of Veterans Affairs without litigation. If 
unsuccessful in this effort, a complete report will be submitted by the 
Regional Counsel to the General Counsel so that appropriate action may 
be taken to obtain the assistance of the Department of Justice in the 
matter.

[42 FR 41411, Aug. 17, 1977]



Sec. 14.517  Cases affecting the Department of Veterans Affairs generally.

    Regional Counsels will establish and maintain such close liaison 
with the State and Federal courts as to insure that notice will be 
afforded the Department of Veterans Affairs on all cases affecting the 
Department of Veterans Affairs. Such information will be forwarded to 
the General Counsel promptly in every case.

[42 FR 41411, Aug. 17, 1977]



Sec. 14.518  Litigation involving beneficiaries in custody of Department 
of Veterans Affairs employees acting in official capacity.

    (a) Service of process generally. An employee, at a field facility, 
served with a writ of habeas corpus involving a beneficiary of the 
Department of Veterans Affairs in the employee's custody will 
immediately notify the Regional Counsel of the region in addition to 
taking such steps as in his or her judgment are necessary for self 
protection.
    (b) Habeas corpus writs. (1) If a Director of a Department of 
Veterans Affairs hospital concerned advises that, according, to current 
medical opinion, hospitalization is necessary for the veteran's safety 
or the safety of others, the Regional Counsel will vigorously oppose the 
writ at the trial court level. If the writ is granted, no further action 
will be taken unless so instructed by the General Counsel.
    (2) If the medical opinion is that hospitalization is not required 
for the veteran's safety or the safety of others but continued treatment 
is clearly indicated in the veteran's interest, the Regional Counsel 
will assure that the court issuing the writ is so informed and will 
abide by the court's decision.
    (3) If the medical opinion is that there is no danger of self injury 
to the veteran or others and the need for continued treatment is not 
clearly demonstrated, the Regional Counsel will advise the Director of 
the hospital concerned that the veteran should be released and will 
notify the veteran's attorney of the planned discharge. These cases will 
be handled informally to the extent practicable.
    (4) Involuntary confinement of mentally ill patients in Department 
of Veterans Affairs installations is predicated upon the law of the 
State in which the installation is located. In the event the writ is 
filed in Federal Court, the Regional Counsel will cooperate with the 
U.S. Attorney to the end that the case is removed to the appropriate 
State court.

[42 FR 41411, Aug. 17, 1977, as amended at 61 FR 7216, Feb. 27, 1996]

                               Prosecution



Sec. 14.560  Procedure where violation of penal statutes is involved 

including those offenses coming within the purview of the Assimilative 
Crime Act (18 
          U.S.C. 13).

    The Department of Justice, or the U.S. Attorneys, are charged with 
the duty and responsibility of interpreting and enforcing criminal 
statutes, and the final determination as to whether the evidence in any 
case is sufficient to warrent prosecution is a matter solely

[[Page 547]]

for their determination. If the Department of Justice or U.S. Attorney 
decides to initiate action, the Regional Counsel will cooperate as may 
be requested. The Regional Counsel will promptly bring to the attention 
of the General Counsel any case wherein he or she is of the opinion that 
criminal or civil action should be initiated notwithstanding a decision 
by the U.S. Attorney not to bring such action; any case where action has 
been inordinately delayed; and any case which would cause significant 
publicity or notoriety.

(Authority: 38 U.S.C. 501)

[50 FR 24767, June 13, 1985, as amended at 68 FR 17551, Apr. 10, 2003]



Sec. 14.561  Administrative action prior to submission.

    Before a submission is made to the U.S. Attorney in cases involving 
personnel or claims, the General Counsel, if the file is in Central 
Office, or the Regional Counsel at the regional office, hospital or 
center, if the file is in the regional office or other field facility, 
will first ascertain that necessary administrative or adjudicatory 
(forfeiture (see Pub. L. 86-222; 73 Stat. 452), etc.), action has been 
taken; except that in urgent cases such as breaches of the peace, 
disorderly conduct, trespass, robbery, or where the evidence may be lost 
by delay, or prosecution barred by the statute of limitations, 
submission to the U.S. Attorney will be made immediately.

[42 FR 41413, Aug. 17, 1977]



Sec. 14.562  Collections or adjustments.

    When it is determined that a submission is to be made to the U.S. 
Attorney, no demand for payment or adjustment will be made without the 
advice of the U.S. Attorney. However, if, before or after submission, 
the potential defendant or other person tenders payment of the liability 
to the United States, payment will be accepted if the U.S. Attorney has 
no objection. If the U.S. Attorney determines that prosecution is not 
indicated, or when prosecution has ended, the file will be returned to 
the appropriate office with a report as to the action taken.

[42 FR 41413, Aug. 17, 1977]

                           Federal Tort Claims



Sec. 14.600  Federal Tort Claims Act--general.

    (a) Federal Tort Claims Act--overview. The Federal Tort Claims Act 
(28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671 through 
2680) prescribes a uniform procedure for handling of claims against the 
United States, for money only, on account of damage to or loss of 
property, or on account of personal injury or death, caused by the 
negligent or wrongful act or omission of a Government employee while 
acting within the scope of his or her office or employment, under 
circumstances where the United States, if a private person, would be 
liable in accordance with the law of the place where the act or omission 
occurred.
    (b) Applicable regulations. The regulations issued by the Department 
of Justice at 28 CFR part 14 are applicable to claims asserted under the 
Federal Tort Claims Act, including such claims that are filed with VA. 
The regulations in Sec. Sec. 14.600 through 14.605 of this part 
supplement the regulations at 28 CFR part 14.
    (c) Delegations of authority concerning claims. Subject to the 
limitations in 28 CFR 14.6(c), (d), and (e), authority to consider, 
ascertain, adjust, determine, compromise, and settle claims asserted 
under the Federal Tort Claims Act (including the authority to execute an 
appropriate voucher and other necessary instruments in connection 
therewith) is delegated as follows:
    (1) To the Under Secretary for Health, the Deputy Under Secretary 
for Health, Veterans Integrated Service Network (VISN) Directors, and VA 
Medical Facility Directors; with respect to any claim for $2,500 or less 
that arises out of the operations of the Veterans Health Administration.
    (2) To the General Counsel, Deputy General Counsel, and Assistant 
General Counsel (Professional Staff Group I) with respect to any claim; 
provided that any award, compromise, or settlement in excess of $200,000 
shall be effected only with the prior written approval of the Attorney 
General or his or her designee.
    (3) To the Regional Counsels and Deputy Assistant General Counsel

[[Page 548]]

(Professional Staff Group I) with respect to any claim; provided that:
    (i) Any award, compromise, or settlement in excess of $100,000 but 
not more than $200,000 shall be effected only with the prior written 
approval of the General Counsel, Deputy General Counsel, or Assistant 
General Counsel (Professional Staff Group I); and
    (ii) Any award, compromise, or settlement in excess of $200,000 
shall be effected only with the prior written approval of the General 
Counsel, Deputy General Counsel, or Assistant General Counsel 
(Professional Staff Group I) and with the prior written approval of the 
Attorney General or his or her designee.
    (d) Delegations of authority to reconsider final denial of a claim. 
Subject to the limitations in 28 CFR 14.6(c), (d), and (e), authority 
under 28 CFR 14.9 to reconsider final denials of claims under the 
Federal Tort Claims Act is delegated as follows:
    (1) To the Regional Counsel with jurisdiction over the geographic 
area where the occurrence complained of arose, with respect to any claim 
for $2,500 or less that arises out of the operations of the Veterans 
Health Administration.
    (2) To the General Counsel, Deputy General Counsel, and Assistant 
General Counsel (Professional Staff Group I) with respect to any claim; 
provided that any award, compromise, or settlement in excess of $200,000 
shall be effected only with the prior written approval of the Attorney 
General or his or her designee.

    Note (1) to paragraph (c)(2): For any award, compromise, or 
settlement in excess of $100,000 but not more than $200,000 a memorandum 
fully explaining the basis for the action taken shall be sent to the 
Department of Justice.
    Note (2) to paragraph (c)(3)(i): For any award, compromise, or 
settlement under paragraph (c)(3)(i) of this section a memorandum fully 
explaining the basis for the action taken shall be sent to the 
Department of Justice.
    Note (3) to paragraph (d)(2): For any award, compromise, or 
settlement in excess of $100,000 but not more than $200,000 a memorandum 
fully explaining the basis for the action taken shall be sent to the 
Department of Justice.

(Authority: 28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2411, 2412, 2671-
2680; 38 U.S.C. 512, 515; 28 CFR part 14, appendix to part 14)

[64 FR 47112, Aug. 30, 1999]



Sec. 14.601  Investigation and development.

    (a) Development of untoward incidents. (1) A report of any collision 
involving a Government-owned vehicle which results in property damage or 
personal injury or death will be made by the operator of the Government 
vehicle immediately following the accident, on SF 91, Operator's Report 
of Motor Vehicle Accident, and shall be submitted to the Director of the 
facility involved. A copy of said report, accompanied by an executed 
copy of VA Form 2162, Report of Accident, will be promptly submitted by 
the Director to the appropriate Regional Counsel, who will authorize 
such additional investigation as the circumstances of the case may 
warrant. Forms required by other agencies will continue to be used in 
addition to VA Form 2162.
    (2)(i) Any incident resulting in damage to, or loss of, property, 
other than personal effects of a patient in a Department of Veterans 
Affairs facility, or in personal injury or death, due apparently or 
allegedly to the negligent or wrongful act or omission of an employee of 
the Department of Veterans Affairs acting within the scope of his or her 
office or employment, or damage to or loss of Government-owned property 
caused by other than a Department of Veterans Affairs employee acting 
within the scope of his or her office or employment, will be immediately 
reported. The Director of the facility where such occurrence took place 
will promptly transmit a copy of the report to the appropriate Regional 
Counsel who will authorize such additional investigation as the 
circumstances of the case may warrant.
    (ii) Where the incident involves the loss of personal effects of a 
patient in a Department of Veterans Affairs facility, the Director will 
assist the patient in completing an SF 95, Claim for Damage, Injury, or 
Death, and will advise the patient that it will be forwarded

[[Page 549]]

immediately to the appropriate Regional Counsel for consideration. The 
Director will forward along with the claim a brief summary of the facts, 
as well as his or her recommendation, to the Regional Counsel. The 
Regional Counsel will expedite the processing of claims of this nature.
    (3) An employee will be designated at each facility to investigate 
motor vehicle collisions and other incidents involving damage to, or 
loss of privately owned property or personal injury or death, apparently 
or allegedly resulting from the negligent or wrongful act or omission of 
an employee of the Department of Veterans Affairs acting within the 
scope of his or her employment, other than investigation of alleged 
malpractice, or damage to or loss of Government-owned property caused by 
other than Department of Veterans Affairs employees. In Central Office, 
the designation will be made by the Director of Support Service, Office 
of the Assistant Secretary for Human Resources and Administration, and 
at all other facilities, by the Director.
    (4) The Regional Counsel for the area in which a field facility is 
located will be responsible for processing claims involving motor 
vehicle collisions and other occurrences resulting in property damage, 
personal injury, or death, within such area. The Baltimore Regional 
Counsel will also have jurisdiction, except as otherwise provided in 
paragraph (a)(3) of this section over incidents occurring in Department 
of Veterans Affairs Central Office.
    (b) Development of medical malpractice claims. In medical 
malpractice cases, the Regional Counsel may refer a claim to the Under 
Secretary for Health via the Director, Medical-Legal Affairs for review 
and for professional opinion or guidance. In the consideration of claims 
involving a medical question, the responsible Regional Counsel involved 
and the General Counsel will be guided by the views of the Under 
Secretary for Health as to the standard of medical care and treatment, 
the nature and extent of the injuries, the degree of temporary or 
permanent disability, the prognosis, the necessity for future treatment 
or physical rehabilitation, and any other pertinent medical aspects of a 
claim.

(Authority: 28 U.S.C. 2671-2680; 38 U.S.C. 512, 515; 28 CFR part 14, 
appendix to part 14)

[42 FR 41414, Aug. 17, 1977. Redesignated and amended at 61 FR 27784, 
June 3, 1996; 64 FR 47112, Aug. 30, 1999]



Sec. 14.602  Requests for medical information.

    (a) Where there is indication that a tort claim will be filed, 
medical records or other information shall not be released without 
approval of the Regional Counsel.
    (b) Request for medical records, documents, reports, or other 
information shall be handled in accordance with the provisions of Sec. 
1.511(a)(2) of this chapter.

[38 FR 5470, Mar. 1, 1973, as amended 42 FR 41415, Aug. 17, 1977. 
Redesignated at 61 FR 27784, June 3, 1996, as amended at 64 FR 47112, 
Aug. 30, 1999]



Sec. 14.603  Disposition of claims.

    Setoff for cost of unauthorized medical treatment. In any tort claim 
administratively settled or compromised where the claimant owes the 
Department of Veterans Affairs for unauthorized medical treatment, there 
will be included in the tort claim award the amount of the claimant's 
indebtedness to the Government. The amount of the indebtedness is for 
credit to the appropriation account from which the services were 
provided. The voucher prepared for settlement of the claim will specify 
the amount to be deposited to the credit of the designated account and 
that the balance of the award be paid to the claimant.

[42 FR 41416, Aug. 17, 1977, as amended at 43 FR 2722, Jan. 19, 1978. 
Redesignated and amended at 61 FR 27784, June 3, 1996]



Sec. 14.604  Filing a claim.

    (a) Each person who inquires as to the procedure for filing a claim 
against the United States, predicated on a negligent or wrongful act or 
omission of an employee of the Department of Veterans Affairs acting 
within the scope of his or her employment, will be furnished a copy of 
SF 95, Claim for Damage, Injury, or Death. The claimant will be advised 
to submit the executed

[[Page 550]]

claim directly to the Regional Counsel having jurisdiction of the area 
wherein the occurrence complained of took place. He or she will also be 
advised to submit the information prescribed by 28 CFR 14.4 to the 
extent applicable. If a claim is presented to the Department of Veterans 
Affairs which involves the actions of employees or officers of other 
agencies, it will be forwarded to the Department of Veterans Affairs 
General Counsel, for appropriate action in accord with 28 CFR 14.2.
    (b) A claim shall be deemed to have been presented when the 
Department of Veterans Affairs receives from a claimant, his or her duly 
authorized agent or legal representative, an executed SF 95, or other 
written notification of an incident, together with a claim for money 
damages, in a sum certain, for damage to or loss of property or personal 
injury or death: Provided, however, That before compromising or settling 
any claim, an executed SF 95 shall be obtained from the claimant.
    (c) A claim presented in compliance with paragraphs (a) and (b) of 
this section may be amended by the claimant at any time prior to final 
Department of Veterans Affairs action or prior to the exercise of the 
claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted 
in writing and signed by the claimant or his or her duly authorized 
agent or legal representative. Upon the timely filing of an amendment to 
a pending claim, the Department of Veterans Affairs shall have 6 months 
in which to make a final disposition of the claim as amended and the 
claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 
months after the filing of the amendment.

(Authority: 28 U.S.C. 1346(b)(1), 2401(b), 2671-2680; 38 U.S.C. 512, 
515; 28 CFR part 14, appendix to part 14)

[42 FR 41414, Aug. 17, 1977, as amended at 61 FR 27784, June 3, 1996; 64 
FR 47112, Aug. 30, 1999]



Sec. 14.605  Suits against Department of Veterans Affairs employees 

arising out of a wrongful act or omission or based upon medical care 
and treatment 
          furnished in or for the Veterans Health Administration.

    (a)(1) Section 2679 of title 28 U.S.C., provides that no suit will 
lie against a Federal employee, or the employee's estate, for damage to 
property, personal injury, or death resulting from his or her wrongful 
act or omission while acting within the scope of his or her office or 
employment with the Federal Government. An action against the United 
States under 28 U.S.C. 2671-2680 is the exclusive remedy under these 
circumstances.
    (2) Section 7316 of title 38 U.S.C., provides that (i) where there 
is remedy against the United States under 28 U.S.C. 2671-2680, or (ii) 
where proceedings for compensation or other benefits from the United 
States are provided by law, and the availability of such benefits 
precludes a remedy under 28 U.S.C. 2671-2680 (as is the case, for 
example, in the Federal Employees' Compensation Act, 5 U.S.C. 8101, et 
seq.), such recourse is the exclusive remedy for property damage, 
personal injury, or death allegedly occurring as a result of malpractice 
or negligence committed by a physician, dentist, nurse, physician's 
assistant, dentist's assistant, pharmacist or paramedical (for example, 
medical and dental technicians, nursing assistants, and therapists), or 
other supporting personnel, while furnishing medical care and treatment 
in the exercise of duties in or for the Veterans Health Administration. 
Accordingly, a malpractice or negligence suit for property damage, 
personal injury, or death will not lie against such personnel under the 
circumstances set forth in this subparagraph.
    (b) The Department of Justice will defend any civil action or 
proceeding brought in any court against persons referred to in paragraph 
(a) (1) or (2) of this section under the circumstances set forth 
therein. Accordingly, when a suit is filed against any employee of the 
Department of Veterans Affairs as a result of a wrongful act or omission 
arising out of employment with the

[[Page 551]]

Government, or as a result of furnishing medical or dental care and 
treatment in or for the Veterans Health Administration, the employee 
shall immediately forward a copy of all papers served on him or her to 
the Regional Counsel having jurisdiction over the area in which the 
employee works. The employee will also promptly forward to the 
appropriate Regional Counsel a signed statement indicating whether he or 
she desires the Department of Justice to provide representation, and to 
otherwise protect his or her interests as provided for by law. Even 
though there may not have been service, if an employee learns that a 
suit arising from either of the above-described circumstances has been 
filed against him or her, the employee shall immediately so advise the 
appropriate Regional Counsel, provide the Regional Counsel with a brief 
description of the facts involved, and state whether he or she desires 
Federal intervention.
    (c) Upon receipt of notice that suit has been filed against an 
employee of the Department of Veterans Affairs who is entitled to 
protection under 28 U.S.C. 2679 or 38 U.S.C. 7316, the Regional Counsel 
having jurisdiction over the place where the employee works will conduct 
a preliminary investigation, which will include an affidavit by the 
employee's supervisor as to whether the defendant-employee was acting in 
the scope of his or her employment at the time of the incident, and a 
request from the defendant-employee for representation. The affidavit 
will contain a factual description of the employee's duties and 
responsibilities at the time of the incident and should describe the 
incident in question. Upon receipt of such information, the Regional 
Counsel will make a preliminary determination as to whether such suit 
comes within the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316. 
The Regional Counsel will refer the matter to the appropriate U.S. 
Attorney with a recommendation as to whether the employee is eligible 
for protection under 28 U.S.C. 2679 or 38 U.S.C. 7316. The U.S. Attorney 
will decide whether the Department of Veterans Affairs employee is 
eligible for the protection. The Regional Counsel will submit to the 
General Counsel a preliminary report in duplicate containing the 
information furnished the U.S. Attorney. In all such cases, the Regional 
Counsel will conduct a complete investigation of the facts and law. Two 
copies of the investigation report will be sent to the General Counsel 
and one copy will be sent to the appropriate U.S. Attorney. The General 
Counsel, through the Regional Counsel, will keep the employee advised of 
the action being taken concerning the suit. In the event that the U.S. 
Attorney or the Department of Justice determines that the employee is 
not eligible for immunization pursuant to one of the aformentioned 
provisions, the General Counsel's office, through the Regional Counsel, 
will advise the employee and will call to his or her attention the 
discretionary conditional indemnification provisions of section 7316(e) 
of title 38 U.S.C.
    (d) Where a civil action is commenced in a State court against a 
Department of Veterans Affairs employee, and the matter is within the 
purview of either 28 U.S.C. 2679, or 38 U.S.C. 7316, the Department of 
Justice will be asked to remove such suit to the appropriate Federal 
District Court before trial, where it will be deemed an action against 
the United States. The defendant employee will be dismissed from the 
suit. After such removal, the United States has available all defenses 
to which it would have been entitled if the action had originally been 
commenced against the United States in the proper Federal District 
Court. Should a Federal District Court determine that the Department of 
Veterans Affairs employee whose acts or omissions gave rise to the suit 
was not acting within the scope of his or her office or employment, and 
therefore not eligible for immunization as provided for in the 
aforementioned section, the case will be remanded to the State court 
from which it was removed, the employee will be reinstated as the 
defendant, and the United States will be dismissed from the suit. Where 
the employee has been reinstated as the defendant under such 
circumstances, in order to protect any rights which he or she may have 
under 38 U.S.C. 7316(e), he or she shall immediately notify the General 
Counsel, through the local Regional Counsel. Through the Regional

[[Page 552]]

Counsel, the General Counsel will call the employee's attention to the 
discretionary conditional indemnification provisions of section 7316(e).
    (e) Under the authority of 38 U.S.C. 7316(e), the Secretary of 
Veterans Affairs may pay for monetary damages sustained by or assessed 
against an individual (or his or her estate) described in paragraph 
(a)(2) of this section, as the result of any suit instituted against 
such individual which is not congnizable under the provisions of 28 
U.S.C. 2671-2680 because the individual was assigned to a foreign 
country, the said individual was detailed to a State or political 
division thereof, or the cause of action was specifically excluded under 
the provisions of 28 U.S.C. 2680(h); Provided, That the amount of 
damages sustained is reasonable when compared with similar cases, 
litigated or settled, and the United States was given a reasonable 
opportunity to defend such individual and to participate in settlement 
negotiations.

(Authority: 28 U.S.C 2671-2680; 38 U.S.C. 512, 515, 7316; 28 CFR part 
14, appendix to part 14)

[42 FR 41417, Aug. 17, 1977. Redesignated and amended at 61 FR 27784, 
June 3, 1996; 64 FR 47112, Aug. 30, 1999]

  Administrative Settlement of Tort Claims Arising in Foreign Countries



Sec. 14.615  General.

    (a) Authority. Section 515(b), title 38 U.S.C., provides that the 
Secretary of Veterans Affairs may pay tort claims, in the manner 
authorized in the first paragraph of section 2672 of title 28 U.S.C., 
when such claims arise in foreign countries in connection with 
Department of Veterans Affairs operations abroad.
    (b) Action by claimant. Claims for property loss or damage may be 
filed by the owner of the property or his or her duly authorized agent 
or legal representative. If the property was insured and the insurer is 
subrogated, in whole or in part, and if both the owner and the insurer 
desire to file a claim for their respective losses they should join in 
one claim. Claims for personal injury may be filed by the injured person 
or his or her agent or legal representative. Claims for death may be 
filed by the personal representative of the decedent or any other 
legally qualified person. When filed by an agent or legal 
representative, the claim must show the title or capacity of the person 
representing the claimant and be accompanied by evidence of the 
appointment of such person as agent, legal representative, executor/
executrix, administrator/administratrix, guardian, or other fiduciary.
    (c) Time for filing. A claim may not be allowed under 38 U.S.C. 
515(b) unless it is presented to the Secretary or his or her designee 
within 2 years after the claim accrues.

(Authority: 28 U.S.C 2671-2680; 38 U.S.C. 512, 515, 7316; 28 CFR part 
14, appendix to part 14)

[38 FR 5473, Mar. 1, 1973, as amended at 42 FR 41417, Aug 17, 1977; 64 
FR 47112, Aug. 30, 1999]



Sec. 14.616  Form and place of filing claim.

    (a) Form of claim. Claims arising under 38 U.S.C. 515(b) will be 
prepared in the form of a sworn statement and submitted in duplicate. 
The original copy of the claim will be sworn to or affirmed before an 
official with authority to administer oaths or affirmations and will 
contain the following information, at least:
    (1) The name and address of claimant;
    (2) The amount claimed for injury or death, and for property loss or 
damage;
    (3) If property was lost or damaged, the amount paid or payable by 
the insurer together with the name of the insurer;
    (4) A detailed statement of the facts and circumstances giving rise 
to the claim, including the time, place, and date of the accident or 
incident;
    (5) If property was involved, a description of the property and the 
nature and extent of the damage and the cost of repair or replacement 
based upon at least two impartial estimates;
    (6) If personal injury was involved, the nature of the injury, the 
cost of medical and/or hospital services, and time and income lost due 
to the injury;
    (7) If death is involved, the names and ages of claimants and their 
relationship to decedent;
    (8) The name and official position of the employee of the United 
States allegedly responsible for the accident or injury, or loss or 
damage of property;

[[Page 553]]

    (9) The names and addresses of any witnesses to accident or 
incident; and
    (10) If desired, the law applicable to the claim.
    (b) Place of filing claim. Claims arising in the Philippines under 
38 U.S.C. 515(b) will be filed with the Director, Department of Veterans 
Affairs Regional Office, Manila, Republic of the Philippines. Claims 
arising in other foreign countries will be filed with the American 
Embassy or Consulate nearest the place where the incident giving rise to 
the claim took place.
    (c) Evidence to be submitted by claimant--(1) General. The amount 
claimed on account of damage to or loss of property or on account of 
personal injury or death shall, so far as possible, be substantiated by 
competent evidence. Supporting statements, estimates and the like will, 
if possible, be obtained from disinterested parties. All evidence will 
be submitted in duplicate. Original evidence or certified copies shall 
be attached to the original copy of the claim, and simple copies shall 
be attached to the other copy of the claim. All documents in other than 
the English language will be accompanied by English translations.
    (2) Personal injury or death. In support of claims for personal 
injury or death, the claimant will submit, as may be appropriate, 
itemized bills for medical, hospital, or burial expenses actually 
incurred; a statement from the claimant's or decedent's employer as to 
time and income lost from work; and a written report by the attending 
physician with respect to the nature and extent of the injury, the 
nature and extent of treatment, the degree of disability, the period of 
hospitalization or incapacitation, and the prognosis as to future 
treatment, hospitalization and the like.
    (3) Damage to personal property. In support of claims for damage to 
personal property which has been repaired, the claimant will submit an 
itemized receipt, or, if not repaired, itemized estimates of the cost of 
repairs by two reliable parties who specialize in such work. If the 
property is not economically repairable, the claimant will submit 
corroborative statements of two reliable, qualified persons with respect 
to cost, age of the property and salvage value.
    (4) Damage to real property. In support of claims for damage to 
land, trees, buildings, fences, or other improvements to real property, 
the claimant will submit an itemized receipt if repairs have been made, 
or, if repairs have not been made, itemized estimates of the cost of 
repairs by two reliable persons who specialize in such work. If the 
property is not economically repairable, the claimant will submit 
corroborative statements of two reliable, qualified persons with respect 
to the value of the improvements both before and after the accident or 
incident and the cost of replacements.
    (5) Damage to crops. In support of claims for damage to crops, the 
claimant will submit an itemized signed statement showing the number of 
acres, or other unit measure of crop damaged, the probable yield per 
unit, the gross amount which would have been realized from such probable 
yield and an estimate of the costs of cultivating, harvesting and 
marketing the crop. If the crop is one which need not be planted each 
year, the diminution in value of the land beyond the damage to the 
current year's crop will also be stated.

(Approved by the Office of Management and Budget under control number 
2900-0437)

[38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977; 49 
FR 32848, Aug. 17, 1984]



Sec. 14.617  Disposition of claims.

    (a) Disposition of claims arising in Philippines. All claims arising 
under 38 U.S.C. 515(b) in the Philippines, including a complete 
investigation report and a brief r[eacute]sum[eacute] of applicable law, 
will be forwarded directly by the Director to the General Counsel, 
together with a recommendation as to disposition.
    (b) Disposition of claims arising in foreign countries other than 
the Philippines. When a claim is received in an American Embassy or 
Consulate, the Embassy or Consulate receiving such claim shall make such 
investigation as may be necessary or appropriate for a determination of 
the validity of the claim and thereafter shall forward the claim, 
together with all pertinent material, including a r[eacute]sum[eacute] 
of applicable law and a recommendation regarding

[[Page 554]]

allowance or disallowance of the claim, through regular channels of the 
Department of State to the General Counsel, Department of Veterans 
Affairs Central Office, Washington, DC.
    (c) Payment of claims. Upon determining that there is liability on 
the part of the United States under 38 U.S.C. 515(b), the General 
Counsel, or such other personnel as may be designated by the Secretary, 
will take the necessary action to effect payment.

[38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977]

           Claims for Damage to or Loss of Government Property



Sec. 14.618  Collection action.

    (a) In a case where the Regional Counsel determines that damage to 
or loss of Government property under the jurisdiction of the Department 
of Veterans Affairs resulted from the negligence or other legal wrong of 
a person other than an employee of the United States, while acting 
within the scope of his or her employment, the Regional Counsel will 
request payment in full of the amount of damage from the person liable 
therefor or such person's insurer.
    (b) The Regional Counsel may collect, compromise, suspend, or 
terminate collection action on any such claim as is authorized under 
Sec. 2.6(e)(4)(ii) of this chapter, in conformity with the standards in 
Sec. 1.900 series of this chapter. Any such claim that has not been 
collected in full and which has not been compromised, suspended or 
terminated and does not exceed $100,000, will be referred by the 
Regional Counsel to the appropriate U.S. attorney along with the 
information required by Sec. Sec. 1.951 through 1.953 of this chapter. 
Any claim in excess of $100,000 for which payment in full has not been 
made, will be transmitted along with the report required by Sec. 
14.601(a)(2)(i), a report on credit data (Sec. 1.952 of this chapter), 
and any other pertinent information, to the General Counsel for 
appropriate action.
    (c) The General Counsel or those designated in Sec. 2.6(e)(4) of 
this chapter will take action to collect in full on such claims and to 
compromise, suspend, or terminate any such claims not exceeding $100,000 
in conformity with Sec. 1.900 series of this chapter. Any such claims 
not compromised, or on which collection actions is not suspended or 
terminated and does not exceed $100,000, will be referred to the 
appropriate U.S. Attorney. Any such claims in excess of $100,000, which 
have not been collected in full, will be referred by the General Counsel 
to the Department of Justice for appropriate action.
    (d) The provisions of paragraphs (a) through (c) of this section are 
not applicable to the collection of claims involving damage to General 
Services Administration Motor Pool System vehicles issued for Department 
of Veterans Affairs use. Whenever there is any indication that a party 
other than the operator of a motor pool system vehicle is at fault in an 
accident, all documents and data pertaining to the accident and its 
investigation will be submitted to the General Services Administration 
Regional Counsel of the region that issued the vehicle who has 
jurisdiction over such matters. Whenever a motor pool system vehicle is 
involved in an accident, resulting in damage to the property of, or 
injury to the person of a third party, and the third party asserts a 
claim against the Department of Veterans Affairs based upon the alleged 
negligence of the vehicle operator, the claim will be considered under 
Sec. 14.600 et seq.

[38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977; 61 
FR 27784, June 3, 1996]

              Claims for Cost of Medical Care and Services



Sec. 14.619  Collection action.

    (a) In a case where the Regional Counsel determines that medical 
care and services were furnished as a result of the negligence of a 
third party, other than an employee of the United States while acting in 
the scope of his or her employment, the Regional Counsel will request 
payment in full of the amount of damage from the person liable therefor 
or such person's insurer.
    (b) The Regional Counsel may collect, compromise, suspend, or 
terminate collection activity on any such claim as is authorized under 
Sec. 2.6(e)(3) of this chapter. However, claims in excess of $100,000 
may be compromised, settled, or waived only with the prior

[[Page 555]]

approval of the Department of Justice, which will be obtained through 
the General Counsel. Any such claim that has not been collected in full 
and which has not been compromised, suspended or terminated will be 
referred by the Regional Counsel to the appropriate U.S. Attorney along 
with appropriate information necessary to protect the interest of the 
Government. A copy of the referral to the U.S. Attorney will be sent to 
the General Counsel's office.
    (c) In a case where the Regional Counsel determines that a claim is 
appropriate under the provisions of Sec. 17.48(g) of this chapter or 38 
U.S.C. 1729, for the cost of medical, hospital, or surgical care, the 
Regional Counsel may assert the claim and collect payment in full. The 
Regional Counsel may compromise, settle, waive, suspend or terminate 
collection activity on any claim not exceeding $100,000. Claims in 
excess of $100,000 may only be compromised, settled, or waived with the 
approval of the General Counsel. Any such claim not compromised, 
settled, or waived or where collection action is not suspended or 
terminated will be referred to the appropriate United States Attorney 
with sufficient data to enable that office to protect the interest of 
the Government. A copy of all materials referred to the United States 
Attorney will be furnished the General Counsel.

(Authority: 38 U.S.C. 1729(c)(1))

[42 FR 41418, Aug. 17, 1977, as amended at 43 FR 10560, Mar. 14, 1978; 
51 FR 23227, June 26, 1986; 58 FR 39153, July 22, 1993; 61 FR 27785, 
June 3, 1996]

Representation of Department of Veterans Affairs Claimants; Recognition 
 of Organizations, Accredited Representatives, Attorneys, Agents; Rules 
    of Practice and Information Concerning Fees, 38 U.S.C. 5901-5905



Sec. 14.626  Purpose.

    The purpose of the regulation of representatives is to ensure that 
claimants for Department of Veterans Affairs benefits have responsible, 
qualified representation in the preparation, presentation, and 
prosecution of claims for veterans' benefits.

(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)

[68 FR 8544, Feb. 24, 2003]



Sec. 14.627  Definitions.

    As used in regulations on representation of Department of Veterans 
Affairs claimants:
    (a) Accreditation means recognition by the Department of Veterans 
Affairs of representatives, attorneys, and agents to represent 
claimants.
    (b) Agent means a person who has met the standards and 
qualifications outlined in Sec. 14.629(b).
    (c) Attorney means a member in good standing of a State bar.
    (d) Benefit means any payment, service, commodity, function, or 
status, entitlement to which is determined under laws administered by 
the Department of Veterans Affairs pertaining to veterans, dependents, 
and survivors.
    (e) Cancellation means termination of authority to represent 
claimants.
    (f) Claim means application made under title 38 U.S.C., and 
implementing directives, for entitlement to Department of Veterans 
Affairs benefits, reinstatement, continuation, or increase of benefits, 
or the defense of a proposed agency adverse action concerning benefits.
    (g) Claimant means a person who has filed or has expressed to a 
representative, agent, or attorney an intention to file a written 
application for determination of entitlement to benefits provided under 
title 38, United States Code, and implementing directives.
    (h) Complete claims service means representation of each claimant 
requesting assistance, from the initiation of a claim until the 
completion of any potential administrative appeal.
    (i) Cross-accreditation means an accreditation based on the status 
of a representative as an accredited and functioning representative of 
another organization.
    (j) Facilities means equipment and furnishings that promote the 
efficient operation of an office, and adjacent accommodations, which are 
needed to facilitate access to office space.
    (k) Recognition means certification by the Department of Veterans 
Affairs

[[Page 556]]

of organizations to represent claimants.
    (l) Representative means a person who has been recommended by a 
recognized organization and accredited by the Department of Veterans 
Affairs.
    (m) State includes any State, possession, territory, or Commonwealth 
of the United States, and the District of Columbia.
    (n) Suspension means temporary withholding of authority to represent 
claimants.

(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)

[53 FR 52419, Dec. 28, 1988, as amended at 68 FR 8544, Feb. 24, 2003]



Sec. 14.628  Recognition of organizations.

    Authorized officers of an organization may request recognition by 
letter to the Secretary of Veterans Affairs.
    (a) National organization. An organization may be recognized as a 
national organization if:
    (1) It was recognized by the Department of Veterans Affairs prior to 
October 10, 1978, and continues to satisfy the requirements of Sec. 
14.628(d) of this section, or
    (2) It satisfies the following requirements:
    (i) Requirements set forth in paragraph (d) of this section, 
including information required to be submitted under that paragraph;
    (ii) In the case of a membership organization, membership of 2,000 
or more persons, as certified by the head of the organization;
    (iii) Capability and resources to provide representation to a 
sizable number of claimants;
    (iv) Capability to represent claimants before the Board of Veterans' 
Appeals in Washington, D.C.; and
    (v) Geographic diversification, i.e., either one or more posts, 
chapters, or offices in at least ten states, or one or more members in 
at least twenty states.
    (b) State organization. An organization created and primarily funded 
by a State government for the purpose of serving the needs of veterans 
of that State may be recognized. Only one such organization may be 
recognized in each State.
    (c) Regional or local organization. An organization other than a 
State or national organization as set forth in paragraphs (a) and (b) of 
this section may be recognized when the Department of Veterans Affairs 
has determined that it is a veterans' service organization primarily 
involved in delivering services connected with either title 38 U.S.C., 
benefits and programs or other Federal and State programs designed to 
assist veterans. The term veteran as used in this paragraph shall 
include veterans, former armed forces personnel, and the dependents or 
survivors of either. Further, the organization shall provide 
responsible, qualified representation in the preparation, presentation, 
and prosecution of claims for title 38 U.S.C., benefits.
    (d) Requirements for recognition. (1) In order to be recognized 
under this section, an organization shall meet the following 
requirements:
    (i) Have as a primary purpose serving veterans. In establishing that 
it meets this requirement, an organization requesting recognition shall 
submit a statement establishing the purpose of the organization and that 
veterans would benefit by recognition of the organization.
    (ii) Demonstrate a substantial service commitment to veterans either 
by showing a sizable organizational membership or by showing performance 
of veterans' services to a sizable number of veterans. In establishing 
that it meets this requirement, an organization requesting recognition 
shall submit:
    (A) The number of members and number of posts, chapters, or offices 
and their addresses;
    (B) A copy of the articles of incorporation, constitution, charter, 
and bylaws of the organization, as appropriate;
    (C) A description of the services performed or to be performed in 
connection with programs administered by the Department of Veterans 
Affairs, with an approximation of the number of veterans, survivors, and 
dependents served or to be served by the organization in each type of 
service designated; and
    (D) A description of the type of services, if any, performed in 
connection with other Federal and State programs which are designed to 
assist former

[[Page 557]]

Armed Forces personnel and their dependents, with an approximation of 
the number of veterans, survivors, and dependents served by the 
organization under each program designated.
    (iii) Commit a significant portion of its assets to veterans' 
services and have adequate funding to properly perform those services. 
In establishing that it meets this requirement, an organization 
requesting recognition shall submit:
    (A) A copy of the last financial statement of the organization 
indicating the amount of funds allocated for conducting particular 
veterans' services (VA may, in cases where it deems necessary, require 
an audited financial statement); and
    (B) A statement indicating that use of the organization's funding is 
not subject to limitations imposed under any Federal grant or law which 
would prevent it from representing claimants before the Department of 
Veterans Affairs.
    (iv) Maintain a policy and capability of providing complete claims 
service to each claimant requesting representation or give written 
notice of any limitation in its claims service with advice concerning 
the availability of alternative sources of claims service. Except as 
provided in paragraphs (d)(1)(iv)(A) and (B) of this section, in 
establishing that it meets this requirement, an organization requesting 
recognition shall submit evidence of its capability to represent 
claimants before Department of Veterans Affairs regional offices and 
before the Board of Veterans' Appeals.
    (A) If an organization does not intend to represent claimants before 
the Board of Veterans' Appeals, the organization shall submit evidence 
of an association or agreement with a recognized service organization 
for the purpose of representation before the Board of Veterans' Appeals, 
or the proposed method of informing claimants of the limitations in 
service that can be provided, with advice concerning the availability of 
alternative sources of claims service.
    (B) If an organization does not intend to represent each claimant 
requesting assistance, the organization shall submit a statement of its 
policy concerning the selection of claimants and the proposed method of 
informing claimants of this policy, with advice concerning the 
availability of alternative sources of claims service.

    Note to paragraph (d)(1)(iv): An organization may be considered to 
provide complete claims service notwithstanding the exercise of 
discretion to determine that provision of representation in a particular 
case is impracticable or inappropriate because, under the circumstances, 
the facts or law do not support the filing of a claim or appeal, an 
appropriate representative-claimant relationship cannot be maintained, 
or representation would give rise to a conflict of interest on the part 
of the organization.

    (v) Take affirmative action, including training and monitoring of 
accredited representatives, to ensure proper handling of claims. In 
establishing that it meets this requirement, an organization requesting 
recognition shall submit:
    (A) A statement of the skills, training, and other qualifications of 
current paid or volunteer staff personnel for handling veterans' claims; 
and
    (B) A plan for recruiting and training qualified claim 
representatives, including the number of hours of formal classroom 
instruction, the subjects to be taught, the period of on-the-job 
training, a schedule or timetable for training, the projected number of 
trainees for the first year, and the name(s) and qualifications of the 
individual(s) primarily responsible for the training.
    (2) In addition, the organization requesting recognition shall 
supply:
    (i) A statement that neither the organization nor its accredited 
representatives will charge or accept a fee or gratuity for service to a 
claimant and that the organization will not represent to the public that 
Department of Veterans Affairs recognition of the organization is for 
any purpose other than claimant representation; and
    (ii) The names, titles, and addresses of officers and the 
official(s) authorized to certify representatives.
    (e) Recognition or denial. Only the Secretary is authorized to 
recognize organizations. Notice of the Secretary's determination on a 
request for recognition will be sent to an organization within 90 days 
of receipt of all information to be supplied.

[[Page 558]]

    (f) Requests for further information. The Secretary or the 
Secretary's designee may request further information from any recognized 
organization, including progress reports, updates, or verifications.

(Authority: 38 U.S.C. 501(a), 5902)

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0439.)

[53 FR 52419, Dec. 28, 1988, as amended at 57 FR 33878, July 31, 1992; 
68 FR 8544, Feb. 24, 2003]



Sec. 14.629  Requirements for accreditation of service organization 
representatives; agents; and attorneys.

    The Regional Counsel of jurisdiction will resolve any question of 
current qualifications of a service organization representative, agent, 
or attorney. The claimant, the service organization representative, 
agent, or attorney, or an official of the organization for which such 
person acts, or a Department of Veterans Affairs Adjudication Officer or 
Service Center Manager may appeal such determination to the General 
Counsel.
    (a) Service Organization Representatives. A recognized organization 
shall file with the Office of the General Counsel VA Form 21 
(Application for Accreditation as Service Organization Representative) 
for each person it desires accredited as a representative of that 
organization. In recommending a person, the organization shall certify 
that the designee:
    (1) Is of good character and reputation and has demonstrated an 
ability to represent claimants before the Department of Veterans 
Affairs;
    (2) Is either a member in good standing or a paid employee of such 
organization working for it not less than 1,000 hours annually; is 
accredited and functioning as a representative of another recognized 
organization; or, in the case of a county veteran's service officer 
recommended by a recognized State organization, meets the following 
criteria:
    (i) Is a paid employee of the county working for it not less than 
1,000 hours annually;
    (ii) Has successfully completed a course of training and an 
examination which have been approved by a Regional Counsel with 
jurisdiction for the State; and
    (iii) Will receive either regular supervision and monitoring or 
annual training to assure continued qualification as a representative in 
the claim process; and
    (3) Is not employed in any civil or military department or agency of 
the United States.


(Authority: 38 U.S.C. 501(a), 5902)

    (b) Agents. (1) An individual desiring accreditation as an agent 
must establish that he or she is of good character and reputation and is 
qualified to render assistance to claimants in the presentation of their 
claim(s). An individual desiring accreditation as an agent must file a 
completed application with the Office of the General Counsel on VA Form 
21a on which the applicant submits the following:
    (i) His or her full name and business address;
    (ii) Information concerning the applicant's military and civilian 
employment history (including character of military discharge, if 
applicable);
    (iii) Information concerning representation provided by the 
applicant before any department, agency, or bureau of the Federal 
government;
    (iv) Information concerning any criminal background of the 
applicant;
    (v) Information concerning whether the applicant has ever been 
determined mentally incompetent or hospitalized as a result of a mental 
disease or disability, or is currently under treatment for a mental 
disease or disability;
    (vi) Information concerning whether the applicant was previously 
accredited as a representative of a veterans service organization and, 
if so, whether that accreditation was terminated or suspended by or at 
the request of that organization;
    (vii) The names, addresses, and phone numbers of three character 
references; and
    (viii) Information relevant to whether or not the applicant has any 
physical limitations which would interfere with the completion of a 
comprehensive written examination administered under the supervision of 
a VA Regional Counsel.

[[Page 559]]

    (2) Applicants must achieve a score of 75 percent or more on a 
written examination administered by VA as a prerequisite to 
accreditation. No applicant shall be allowed to sit for the examination 
more than twice in any 6-month period.

(Authority: 38 U.S.C. 501(a), 5904)
    (c) Attorneys. (1) An attorney may represent a claimant upon 
submission of authorization as described in Sec. 14.631(a) or (b).
    (2) If the claimant consents in writing, an attorney associated or 
affiliated with the claimant's attorney of record or employed by the 
same legal services office as the attorney of record may assist in the 
representation of the claimant.
    (3) A legal intern, law student, or paralegal may not be 
independently accredited to represent claimants under this paragraph. A 
legal intern, law student, or certified paralegal may assist in the 
preparation, presentation, or prosecution of a claim, under the direct 
supervision of an attorney of record designated under Sec. 14.631(a) or 
(b), if the claimant's written consent is furnished to the Department of 
Veterans Affairs. Such consent must specifically state that 
participation in all aspects of the claim by a legal intern, law 
student, or paralegal furnishing written authorization from the attorney 
of record is authorized. In addition, suitable authorization for access 
to the claimant's records must be provided in order for such an 
individual to participate. The supervising attorney must be present at 
any hearing in which a legal intern, law student, or paralegal 
participates. (See Sec. 20.606).
    (4) Unless revoked by the claimant, consent provided under paragraph 
(c)(2) or paragraph (c)(3) of this section shall remain effective in the 
event the claimant's original attorney is replaced as attorney of record 
by another member of the same law firm or an attorney employed by the 
same legal services office.
    Note to Sec. 14.629: A legal intern, law student, paralegal, or 
veterans service organization support-staff person, working under the 
supervision of an individual designated under Sec. 14.631(a) as the 
claimant's representative, attorney, or agent, may qualify for read-only 
access to pertinent Veterans Benefits Administration automated claims 
records.

(Authority: 38 U.S.C. 501(a), 5904)

(The Office of Management and Budget has approved the information 
collection requirements in this section under control numbers 2900-0018 
and 2900-0605.)

[53 FR 52421, Dec. 28, 1988, as amended at 55 FR 38057, Sept. 17, 1990; 
68 FR 8545, Feb. 24, 2003]



Sec. 14.630  Authorization for a particular claim.

    (a) Any person may be authorized to prepare, present, and prosecute 
one claim. A proper power of attorney, and a statement signed by the 
person and the claimant that no compensation will be charged or paid for 
the services, shall be filed with the office where the claim is 
presented. A signed writing, which may be in letter form, identifying 
the claimant and the type of benefit or relief sought, specifically 
authorizing a named individual to act as the claimant's representative, 
and further authorizing direct access to records pertinent to the claim, 
will be accepted as a power of attorney.
    (b) Representation may be provided by an individual pursuant to this 
section one time only. An exception to this limitation may be granted by 
the General Counsel in unusual circumstances. Among the factors which 
may be considered in determining whether an exception will be granted 
are:
    (1) The number of accredited representatives and claims agents 
operating in the claimant's geographic region;
    (2) Whether the claimant has unsuccessfully sought representation 
from other sources;
    (3) The nature and status of the claim; and
    (4) Whether there exists unique circumstances which would render 
alternative representation inadequate.

(Authority: 38 U.S.C. 501(a), 5903)

[68 FR 8546, Feb. 24, 2003]



Sec. 14.631  Powers of attorney.

    (a) A power of attorney, executed on either Department of Veterans 
Affairs Form 21-22 (Appointment of Veterans Service Organization as 
Claimant's

[[Page 560]]

Representative) or Department of Veterans Affairs Form 22a (Appointment 
of Attorney or Agent as Claimant's Representative), is required to 
represent a claimant, except when representation is by an attorney who 
complies with paragraph (b) of this section or when representation by an 
individual is authorized under Sec. 14.630. The power of attorney shall 
meet the following requirements:
    (1) Contain signature by:
    (i) The claimant, or
    (ii) The claimant's guardian, or
    (iii) In the case of an incompetent, minor, or otherwise 
incapacitated person without a guardian, the following in the order 
named--spouse, parent, other relative or friend (if interests are not 
adverse), or the director of the hospital in which the claimant is 
maintained; and
    (2) Shall be presented to the appropriate Department of Veterans 
Affairs office for filing in the veteran's claims folder.
    (b) An attorney engaged by a client may state in a signed writing on 
his or her letterhead that the attorney is authorized to represent the 
claimant. This evidence of authorization shall be equivalent to an 
executed power of attorney and shall be presented to the Department of 
Veterans Affairs regional office that has jurisdiction over the claim 
for filing the claimant's claims folder.
    (c) The Secretary may, for any purpose, treat a power of attorney 
naming as a claimant's representative an organization recognized under 
Sec. 14.628, a particular office of such an organization, or an 
individual representative of such an organization as an appointment of 
the entire organization as the claimant's representative, unless the 
claimant specifically indicates in the power of attorney a desire to 
appoint only the individual representative. Such specific indication 
must be made in the space on the power-of-attorney form for designation 
of the representative and must use the word ``only'' with reference to 
the individual representative.
    (d) An organization, representative, agent, or attorney named in a 
power of attorney executed pursuant to paragraph (a) of this section may 
decline to accept appointment as a claimant's representative by so 
notifying the claimant and the agency of original jurisdiction in 
writing prior to taking any action on the claimant's behalf before the 
Department of Veterans Affairs after execution of the power of attorney 
by the claimant.

    Note to Sec. 14.631(d): Written notification to VA may be submitted 
via hand delivery, mail, electronic mail, or facsimile.

    (e) Questions concerning the validity or effect of powers of 
attorney shall be referred to the Regional Counsel of jurisdiction for 
initial determination. This determination may be appealed to the General 
Counsel.
    (f)(1) Only one organization, representative, agent, or attorney 
will be recognized at one time in the prosecution of a particular claim. 
Except as provided in Sec. 14.629(c) and paragraph (f)(2) of this 
section, all transactions concerning the claim will be conducted 
exclusively with the recognized organization, representative, agent, or 
attorney of record until notice of a change, if any, is received by the 
appropriate office of the Department of Veterans Affairs.
    (2) An organization named in a power of attorney executed in 
accordance with paragraph (a) of this section may employ an attorney to 
represent a claimant in a particular claim. Unless the attorney is an 
accredited representative of the organization, the written consent of 
the claimant shall be required.
    (g)(1) A power of attorney may be revoked at any time, and an 
attorney may be discharged at any time. Unless a claimant specifically 
indicates otherwise, the receipt of a new power of attorney shall 
constitute a revocation of an existing power of attorney.
    (2) If an attorney submits a letter concerning representation under 
paragraph (b) of this section regarding a particular claim, or a 
claimant authorizes a person to provide representation in a particular 
claim under Sec. 14.630, such specific authority shall constitute a 
revocation of an existing general power of attorney filed under 
paragraph (a) of this section only as it pertains to, and during the 
pendency of, that particular claim. Following the final determination of 
such claim, the

[[Page 561]]

general power of attorney shall remain in effect as to any new or 
reopened claim.

(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)

[43 FR 46535--46537, Oct. 10, 1978, as amended at 53 FR 52421, Dec. 28, 
1988; 68 FR 8546, Feb. 24, 2003]



Sec. 14.632  Determination of qualifications.

    If challenged, the qualifications of prospective representatives or 
agents shall be verified by the Regional Counsel of jurisdiction. The 
report of the Regional Counsel, if any, including any recommendation of 
the Department of Veterans Affairs facility director, and the 
application shall be transmitted to the General Counsel for final 
action. If the designee is disapproved by the General Counsel, the 
reasons will be stated and an opportunity will be given to submit 
additional information. If the designee is approved, notification of 
accreditation will be issued by the General Counsel or the General 
Counsel's designee and will constitute authority to prepare, present, 
and prosecute claims in all Department of Veterans Affairs 
installations.

(Authority: 38 U.S.C. 501(a), 5902, 5904)

[68 FR 8547, Feb. 24, 2003]



Sec. 14.633  Termination of accreditation of agents, attorneys, and 
representatives.

    (a) Accreditation may be canceled at the request of an agent, 
attorney, representative, or organization.
    (b) Accreditation shall be canceled at such time a determination is 
made that any requirement of Sec. 14.629 is no longer met by an agent, 
attorney, or representative.
    (c) Accreditation shall be canceled when the General Counsel finds, 
by clear and convincing evidence, one of the following:
    (1) Violation of or refusal to comply with the laws administered by 
the Department of Veterans Affairs or with the regulations governing 
practice before the Department of Veterans Affairs;
    (2) Knowingly presenting or prosecuting a fraudulent claim against 
the United States, or knowingly providing false information to the 
United States;
    (3) Demanding or accepting unlawful compensation for preparing, 
presenting, prosecuting, or advising or consulting, concerning a claim;
    (4) Any other unlawful, unprofessional, or unethical practice. 
(Unlawful, unprofessional, or unethical practice shall include but not 
be limited to the following--deceiving, misleading or threatening a 
claimant or prospective claimant; neglecting to prosecute a claim for 6 
months or more; failing to furnish a reasonable response within 90 days 
of request for evidence by the Department of Veterans Affairs, or 
willfully withholding an application for benefits.)
    (d) Accreditation shall be canceled when the General Counsel finds 
an agent's, attorney's, or representative's performance before the 
Department of Veterans Affairs demonstrates a lack of the degree of 
competence necessary to adequately prepare, present, and prosecute 
claims for veteran's benefits.
    (e) As to cancellation of accreditation under paragraphs (b), (c) or 
(d) of this section, upon receipt of information from any source 
indicating failure to meet the requirements of Sec. 14.629, improper 
conduct, or incompetence, the Regional Counsel of jurisdiction shall 
initiate an inquiry into the matter. If the matter involves an 
accredited representative of a recognized organization, this inquiry 
shall include contact with the representative's organization.
    (1) If the result of the inquiry does not justify further action, 
the Regional Counsel will close the inquiry and maintain the record for 
3 years.
    (2) If the result of the inquiry justifies further action, the 
Regional Counsel shall take the following action:
    (i) As to representatives, suspend accreditation immediately and 
notify the representative and the representative's organization of the 
suspension and of an intent to cancel accreditation. The notice to the 
representative will also state the reasons for the suspension and 
impending cancellation, and inform the representative of a right to 
request a hearing on the matter or to submit additional evidence within 
10 working days following receipt of such notice. Such time may be 
extended for

[[Page 562]]

a reasonable period upon a showing of sufficient cause.
    (ii) As to agents or attorneys, inform the General Counsel of the 
result of the inquiry and notify the agent or attorney of an intent to 
cancel accreditation. The notice will also state the reason(s) for the 
impending cancellation and inform the party of a right to request a 
hearing on the matter or to submit additional evidence within 10 working 
days of receipt of such notice. Such time may be extended for a 
reasonable period upon a showing of sufficient cause.
    (iii) In the event that a hearing is not requested, the Regional 
Counsel shall forward the record to the General Counsel for final 
determination.
    (f) If a hearing is requested, a hearing officer will be appointed 
by the Director of the regional office involved. The hearing officer 
shall not be from the Office of the Regional Counsel. The hearing 
officer will have authority to administer oaths. A member of the 
Regional Counsel's office will present the evidence. The party 
requesting the hearing will have a right to counsel, to present 
evidence, and to cross-examine witnesses. Upon request of the party 
requesting the hearing, an appropriate Department of Veterans Affairs 
official designated in Sec. 2.1 of this chapter may issue subpoenas to 
compel the attendance of witnesses and the production of documents 
necessary for a fair hearing. The hearing shall be conducted in an 
informal manner and court rules of evidence shall not apply. Testimony 
shall be recorded verbatim. The hearing officer shall submit the entire 
hearing transcript, any pertinent records or information, and a 
recommended finding to the Regional Counsel within 10 working days after 
the close of the hearing. The Regional Counsel will immediately forward 
the entire record to the General Counsel for decision.
    (g) The decision of the General Counsel is final. The effective date 
for termination of accreditation shall be the date upon which a final 
decision is rendered. The records of the case will be maintained in the 
General Counsel's office for 3 years.

(Authority: 38 U.S.C. 501, 5902, 5904)

[53 FR 52422, Dec. 28, 1988]



Sec. 14.634  Banks or trust companies acting as guardians.

    Banks or trust companies, corporate entities, acting as guardians 
for claimants, may be represented before adjudicating agencies as 
authorized representatives of claimants by an officer or employee, 
including a regularly employed attorney, if the employee or attorney 
represents the corporation in its fiduciary capacity.

(Authority: 38 U.S.C. 5903, 5904)

[43 FR 46535--46537, Oct. 10, 1978. Redesignated and amended at 57 FR 
4104, Feb. 3, 1992; 68 FR 8547, Feb. 24, 2003]



Sec. 14.635  Office space and facilities.

    The Secretary may furnish office space and facilities, if available, 
in buildings owned or occupied by the Department of Veterans Affairs, 
for the use of paid full-time representatives of recognized national 
organizations, and for employees of recognized State organizations who 
are accredited to national organizations, for purposes of assisting 
claimants in the preparation, presentation, and prosecution of claims 
for Department of Veterans Affairs benefits.
    (a) Request for office space should be made by an appropriate 
official of the organization to the Director of the Department of 
Veterans Affairs facility in which space is desired and should set 
forth:
    (1) The number of full-time paid representatives who will be 
permanently assigned to the office;
    (2) The number of secretarial or other support staff who will be 
assigned to the office;
    (3) The number of claimants for whom the organization holds powers 
of attorney whose claims are within the jurisdiction of the facility or 
who reside in the area served by the facility, the number of such 
claimants whose claims are pending, and the number of claims prosecuted 
during the previous three years; and
    (4) Any other information the organization deems relevant to the 
allocation of office space.
    (b) When in the judgment of the Director office space and facilities 
previously granted could be better used by the Department of Veterans 
Affairs, or

[[Page 563]]

would receive more effective use or serve more claimants if allocated to 
another recognized national organization, the Director may withdraw such 
space or reassign such space to another organization. In the case of a 
facility under the control of the Veterans Benefits Administration or 
the Veterans Health Administration, the final decision on such matters 
will be made by the Under Secretary for Benefits or the Under Secretary 
for Health, respectively.

(Authority: 38 U.S.C. 501(a), 5902)

[53 FR 52423, Dec. 28, 1988. Redesignated and amended at 57 FR 4104, 
Feb. 3, 1992; 68 FR 8547, Feb. 24, 2003]

   Expanded Remote Access to Computerized Veterans Claims Records by 
                       Accredited Representatives

    Source: 59 FR 47084, Sept. 14, 1994, unless otherwise noted.



Sec. 14.640  Purpose.

    (a) Sections 14.640 through 14.643 establish policy, assign 
responsibilities and prescribe procedures with respect to:
    (1) When, and under what circumstances, VA will grant authorized 
claimants' representatives read-only access to the automated Veterans 
Benefits Administration (VBA) claims records of those claimants whom 
they represent;
    (2) The exercise of authorized access by claimants' representatives; 
and
    (3) The bases and procedures for disqualification of a 
representative for violating any of the requirements for access.
    (b) VBA will grant access to its automated claimants' claims records 
from locations outside Regional Offices under the following conditions. 
Access will be provided:
    (1) Only to individuals and organizations granted access to 
automated claimants' records under Sec. Sec. 14.640 through 14.643;
    (2) Only to the claims records of VA claimants whom the organization 
or individual represents as reflected in the claims file;
    (3) Solely for the purpose of the representative assisting the 
individual claimant whose records are accessed in a claim for benefits 
administered by VA; and
    (4) On a read-only basis. Individuals authorized access to VBA 
automated claims records under Sec. Sec. 14.640 through 14.643 will not 
be permitted to modify the data.
    (c)(1) Access will be authorized only to the inquiry commands of the 
Benefits Delivery Network which provide access to the following 
categories of data:
    (i) Beneficiary identification data such as name, social security 
number, sex, date of birth, service number and related service data; and
    (ii) Claims history and processing data such as folder location, 
claim status, claim establishment date, claim processing history, award 
data, rating data, including service-connected medical conditions, 
income data, dependency data, deduction data, payment data, educational 
facility and program data (except chapter 32 benefits), and education 
program contribution and delimiting data (except chapter 32 benefits).
    (2) Access to this information will currently be through the inquiry 
commands of BINQ (BIRLS (Beneficiaries Identification and Records 
Location Subsystem) Inquiry), SINQ (Status Inquiry), MINQ (Master Record 
Inquiry), PINQ (Pending Issue Inquiry) and TINQ (Payment History 
Inquiry). The identifying information received from BIRLS to 
representative inquiries will be limited to file number, veteran's name, 
date of death, folder location and transfer date of folder, insurance 
number, insurance type, insurance lapse date and insurance folder 
jurisdiction.
    (d) Sections 14.640 through 14.643 are not intended to, and do not:
    (1) Waive the sovereign immunity of the United States; or
    (2) Create, and may not be relied upon to create, any right or 
benefit, substantive or procedural, enforceable at law against the 
United States or the Department of Veterans Affairs.



Sec. 14.641  Qualifications for access.

    (a) An applicant for read-only access to VBA automated claims 
records from a location other than a VA Regional Office must be:

[[Page 564]]

    (1) An organization, representative, attorney or agent approved or 
accredited by VA under Sec. Sec. 14.626 through 14.635; or
    (2) An attorney of record for a claimant in proceedings before the 
Court of Veterans Appeals or subsequent proceedings who requests access 
to the claimant's automated claims records as part of the representation 
of the claimant.
    (b) The hardware, modem and software utilized to obtain access, as 
well as their location, must be approved in advance by VBA.
    (c) Each individual and organization approved for access must sign 
and return a notice provided by the Regional Office Director (or the 
Regional Office Director's designee) of the Regional Office of 
jurisdiction for the claim. The notice will specify the applicable 
operational and security requirements for access and an acknowledgment 
that the breach of any of these requirements is grounds for 
disqualification from access.



Sec. 14.642  Utilization of access.

    (a) Once an individual or organization has been issued the necessary 
passwords to obtain read-only access to the automated claims records of 
individuals represented, access will be exercised in accordance with the 
following requirements:
    (1) The individual or organization will obtain access only from 
equipment and software approved in advance by the Regional Office from 
the location where the individual or organization primarily conducts its 
representation activities which also has been approved in advance;
    (2) The individual will use only his or her assigned password to 
obtain access;
    (3) The individual will not reveal his or her password to anyone 
else, or allow anyone else to use his or her password;
    (4) The individual will access only the VBA automated claims records 
of VA claimants who are represented by the person obtaining access or by 
the organization employing the person obtaining access;
    (5) The individual will access a claimant's automated claims record 
solely for the purpose of representing that claimant in a claim for 
benefits administered by VA;
    (6) Upon receipt of the password, the individual will destroy the 
hard copy; no written or printed record containing the password will be 
retained; and
    (7) The individual and organization will comply with all security 
requirements VBA deems necessary to ensure the integrity and 
confidentiality of the data and VBA's automated computer systems.
    (b) An organization granted access shall ensure that all employees 
provided access in accordance with these regulations will receive 
regular, adequate training on proper security, including the items 
listed in Sec. 14.643(a). Where an individual such as an attorney or 
registered agent is granted access, he or she will regularly review the 
security requirements for the system as set forth in these regulations 
and in any additional materials provided by VBA.
    (c) VBA may, at any time without notice:
    (1) Inspect the computer hardware and software utilized to obtain 
access and their location;
    (2) Review the security practices and training of any individual or 
organization granted access under these regulations; and
    (3) Monitor an individual's or organization's access activities. By 
applying for, and exercising, the access privileges under Sec. Sec. 
14.640 through 14.643, the applicant expressly consents to VBA 
monitoring the access activities of the applicant at any time.



Sec. 14.643  Disqualification.

    (a) The Regional Office Director or the Regional Office Director's 
designee may revoke an individual's or an organization's access 
privileges to a particular claimant's records because the individual or 
organization no longer represents the claimant, and, therefore, the 
beneficiary's consent is no longer in effect. The individual or 
organization is no longer entitled to access as a matter of law under 
the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701 and 7332. Under these 
circumstances, the individual or organization is not entitled to any 
hearing or to present

[[Page 565]]

any evidence in opposition to the revocation.
    (b) The Regional Office Director or the Regional Office Director's 
designee may revoke an individual's or an organization's access 
privileges either to an individual claimant's records or to all 
claimants' records in the VBA automated claims benefits systems if the 
individual or organization:
    (1) Violates any of the provisions of Sec. Sec. 14.640 through 
14.643;
    (2) Accesses or attempts to access data for a purpose other than 
representation of an individual veteran;
    (3) Accesses or attempts to access data other than the data 
specified in these regulations;
    (4) Accesses or attempts to access data on a VA beneficiary who is 
not represented either by the individual who obtains access or by the 
organization employing the individual who obtains access;
    (5) Utilizes unapproved computer hardware or software to obtain or 
attempt to obtain access to VBA computer systems;
    (6) Modifies or attempts to modify data in the VBA computer systems.
    (c) If VBA is considering revoking an individual's access under 
Sec. 14.643(b), and that individual works for an organization, the 
Regional Office of jurisdiction will notify the organization of the 
pendency of the action.
    (d) After an individual's access privileges are revoked, if the 
conduct which resulted in revocation was such that it merits reporting 
to an appropriate governmental licensing organization such as a State 
bar, the VBA Regional Office of jurisdiction will immediately inform the 
licensing organization in writing of the fact that the individual's 
access privileges were revoked and the reasons why.
    (e) The VBA Regional Office of jurisdiction may temporarily suspend 
access privileges prior to any determination on the merits of the 
proposed revocation where the Regional Office Director or the Director's 
designee determines that such immediate suspension is necessary in order 
to protect the integrity of the system or confidentiality of the data in 
the system from a reasonably foreseeable compromise. However, in such 
case, the Regional Office shall offer the individual or organization an 
opportunity to respond to the charges immediately after the temporary 
suspension.

                            Personnel Claims



Sec. 14.664  Scope of authority and effective date.

    Pub. L. 88-558 (78 Stat. 767), approved August 31, 1964, as amended, 
authorizes the Secretary or the Secretary's designee to settle and pay a 
claim for not more than $40,000 made by a civilian officer or employee 
of the Department of Veterans Affairs for damage to, or loss of personal 
property incident to such person's service. Authority is delegated by 
Sec. 2.6(e)(5) of this chapter to the General Counsel, Deputy General 
Counsel, Assistant General Counsel (Professional Staff Group III), and 
the Deputy Assistant General Counsel, of said staff group and the 
Regional Counsel and those acting for them to settle and pay such claims 
on behalf of the Secretary, and such settlement shall be final and 
conclusive.

(Authority: 31 U.S.C. 3721(b))

[42 FR 41421, Aug. 17, 1977, as amended at 49 FR 47005, Nov. 30, 1984; 
55 FR 48841, Nov. 23, 1990]



Sec. 14.665  Claims.

    (a) The claim must be presented in writing on VA Form 2-4760, 
Employee's Claim for Reimbursement for Personal Property Damaged or Lost 
Incident to Employment. It will be submitted to the personnel office 
where the claim originates within 2 years after it accrues except that 
if the claim accrues in time of war or in time of armed conflict in 
which any Armed Force of the United States is engaged or if such war or 
armed conflict intervenes within 2 years after it accrues, and if good 
cause is shown, the claim may be presented not later than 2 years after 
that cause ceases to exist. The claim must be executed and certified by 
the officer or the employee suffering the loss or damage, or in the 
event of his or her death, by the surviving spouse, children, father or 
mother or both, or brothers or sisters or both. Claims of survivors 
shall be settled and paid in the order named. All claims must contain 
the following:

[[Page 566]]

    (1) The date, time, and place the loss or damage occurred and the 
circumstances surrounding such loss or damage, together with the 
supporting statements of any witnesses who can verify such facts.
    (2) In the event of damage, the date of acquisition, original cost, 
condition before damage, and at least two estimates of the cost of 
repair or replacement. In the event of loss, the date of acquisition, 
the original cost, the condition, and an estimate of the reasonable 
market value of the article or articles.
    (3) A statement as to any claims or potential claim he or she may 
have for indemnification of the loss or damage against other than the 
United States and whether he or she will assign such to the United 
States and cooperate in its prosecution. Where such claim or potential 
claim is against a carrier or insurer, evidence that a timely claim has 
been properly made. Where a recovery from the carrier or his or her 
insurer has been obtained or offered, such information shall be 
included.
    (4) In cases involving damage or destruction of personal property by 
patients or domiciliary members, a statement as to whether a claim was 
filed pursuant to 38 U.S.C. 703(a)(5) and whether such claim has been 
finally denied.
    (b) The Personnel Officer receiving the claim will forward same to 
the person designated to investigate accidents at the station pursuant 
to Sec. 14.605 within 5 days after receipt.
    (c) The employee designated pursuant to Sec. 14.605 will ascertain 
if such claim is complete in all respects and conduct such investigation 
as is necessary to establish all facts required to properly evaluate the 
claim both as to merit and the reasonable amount payable for the loss or 
damage. Where it is indicated that the claimant may have a potential 
claim against other than the United States, the employee designated will 
secure a suitable assignment of all right and title to such claim, to 
the extent the United States makes reimbursement, and the agreement of 
the claimant to furnish such evidence as may be necessary to pursue such 
claim. If the potential claim is against a carrier or insurer, the 
employee designated will ascertain that the claimant has filed a timely 
proper claim and procure evidence thereof. The employee designated will 
also include information concerning any offer of settlement the carrier 
may have made. The completed investigation, original claim and 
supporting evidence will be forwarded to the appropriate Regional 
Counsel.

[38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41421, Aug. 17, 1977]



Sec. 14.666  Regional Counsel responsibility.

    (a) The Regional Counsel having jurisdiction will conduct such 
additional investigation as is deemed necessary to establish all facts 
required. If the claimant has a potential claim for indemnification 
against other than the United States, the Regional Counsel will 
ascertain that a suitable assignment, legally enforceable, of all right 
and title to such claim, to the extent the United States makes 
reimbursement, and the agreement of the claimant to furnish such 
evidence as may be necessary to pursue such claim is of record. If such 
potential claim is against a carrier or insurer, the Regional Counsel 
will ascertain that claimant has filed a timely proper claim against the 
carrier or insurer and review same for legal sufficiency.
    (b) The Regional Counsel having jurisdiction over a claim will not 
authorize payment thereon unless the requirement of Sec. Sec. 14.664 
through 14.667 are met. In determining the equitable value of a claim, 
the depreciation schedule issued by the General Counsel will be used as 
a guide.

[42 FR 41422, Aug. 17, 1977]



Sec. 14.667  Claims payable.

    (a) No claim shall be paid unless timely filed in proper form as 
provided in Sec. 14.665 and the preponderance of the evidence 
establishes that the loss or damage:
    (1) Actually occurred and the amount claimed is reasonable,
    (2) Was incident to the employee's service and his or her possession 
of the property was reasonable, useful, or proper under the 
circumstances,

[[Page 567]]

    (3) Did not occur at quarters occupied within the 50 States or the 
District of Columbia that were not assigned to the claimant or otherwise 
provided in kind by the United States.
    (4) Was not caused wholly or partly by the negligent act of 
claimant, the claimant's agent, or employee, and that the claimant has 
no right to indemnification for the loss or damage from other than the 
United States, except to the extent that the claimant assigns such right 
to the United States and agrees to furnish evidence required to enable 
the United States to enforce such right. In the event there is a right 
to recovery for the loss or damage from a carrier or insurer the 
claimant will be required to file a timely claim for such recovery 
before consideration of the claim against the United States.
    (b) No claim for the cost of repair or replacement of personal 
property of employees damaged or destroyed by patients or domiciliary 
members while such employees are engaged in the performance of official 
duties shall be entertained under Sec. Sec. 14.664 through 14.667, 
unless claim filed pursuant to 38 U.S.C. 703(a)(5) (Sec. 17.78 of this 
chapter) has been finally denied for the reason that such claim did not 
meet the criteria established by that law.

[38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41422, Aug. 17, 1977]



Sec. 14.668  Disposition of claims.

    (a) Disallowed claims. Claimants will be promptly notified of the 
disallowance of a claim and the reasons therefor.
    (b) Allowed claims--(1) Reimbursement in kind. Where a claim is 
allowed and it is determined to be to the advantage of the Government, 
reimbursement will be made in kind. The official authorizing settlement 
will request the Director, Supply Service, Veterans Health Services and 
Research Administration, to procure the necessary article or articles 
and deliver same to the claimant.
    (2) Reimbursement by check. The official authorizing settlement will 
forward allowed claims, other than those requiring reimbursement in 
kind, to the Finance activity at the Department of Veterans Affairs 
installation where the claim arose. That activity will audit the claim, 
which if found proper for payment, will be scheduled on SF 1166, Voucher 
and Schedule of Payments, and forwarded to the appropriate Regional 
Disbursing Office for payment.

[38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41422, Aug. 17, 1977]



Sec. 14.669  Fees of agents or attorneys; penalty.

    The Military Personnel and Civilian Employees' Claims Act of 1964 
(Pub. L. 88-558; 78 Stat. 767) was amended by Pub. L. 89-185 (79 Stat. 
789), on September 15, 1965, by adding a new section which provided that 
no more than 10 percent of the amount paid in settlement of each 
individual claim submitted and settled under the authority of the Act 
shall be paid or delivered to or received by any agent or attorney on 
account of services rendered in connection with that claim. Any person 
violating the provisions of this Act is deemed to be guilty of a 
misdemeanor and upon conviction thereof shall be fined in any sum not 
exceeding $1,000.

[38 FR 5475, Mar. 1, 1973]

                        Commitments--Fiduciaries

    Source: 42 FR 41422, Aug. 17, 1977, unless otherwise noted.



Sec. 14.700  Court cost and expenses; commitment, restoration, fiduciary 
appointments.

    It is the responsibility of the Regional Counsel to assure the 
protection of the veteran, his or her beneficiaries, and their estates 
in State court proceedings involving commitment and restoration, and the 
appointment of fiduciaries. To this end certain expenses such as court 
costs, publication fees, recording fees, transportation expenses and 
fees for medical testimony may be authorized by the Regional Counsel. 
Payment of these costs will be borne by the administration concerned. 
However, every effort will be made by the Regional Counsel to avoid 
having these costs imposed on the Department of Veterans Affairs. The 
travel and per diem cost of the Regional Counsel personnel will be borne 
by the Regional Counsel.

[[Page 568]]



Sec. 14.701  Commitment and restoration proceedings.

    (a) State institutions. Regional Counsels are authorized to 
cooperate with State courts, including the production of required 
records in the commitment of veterans to State hospitals or in their 
restoration to full civil rights.
    (b) Department of Veterans Affairs institutions--(1) Assistance to 
courts in commitment proceedings. The Regional Counsel will render 
assistance to the courts in cases involving the commitment of mentally 
ill veterans to the Department of Veterans Affairs. To this end, the 
Regional Counsel may:
    (i) Produce Department of Veterans Affairs records.
    (ii) Appear in court and present material facts.
    (iii) When authorized to institute commitment proceedings under 
paragraph (b)(2) of this section, prepare and present all necessary 
legal papers, and arrange and authorize transportation costs of veterans 
and attendants at Department of Veterans Affairs expense (Sec. Sec. 
14.703 and 14.704).
    (2) Commitment proceedings. If a mentally ill veteran will accept 
hospitalization voluntarily, no action will be initiated by any 
Department of Veterans Affairs employee to commit such veteran. If the 
veteran will not accept hospitalization, or after being voluntarily 
hospitalized by the Department of Veterans Affairs demands his or her 
release, and hospitalization is necessary for the veteran's safety or 
the safety of others, the Regional Counsel (if a relative of the veteran 
or other interested person has not done so) may institute proceedings to 
commit the veteran to the Department of Veterans Affairs subject to the 
following conditions:
    (i) That the written consent of the veteran's nearest relative has 
been obtained. If the nearest relative cannot be readily contacted or 
refuses to consent, coupled with inability or refusal to offer adequate 
alternative care, the Regional Counsel may initiate the action if the 
petition is signed by another relative, a civil official or 
representative of a cooperating agency or other person authorized by 
State law.
    (ii) If timely action cannot be taken under paragraph (b)(2)(i) of 
this section, the Hospital or Clinic Director, or designee, may sign the 
petition if permissible under State law, and the Regional Counsel will 
then take any action necessary to bring the matter before the 
appropriate court.
    (3) Illegal commitment. When a hospitalized veteran, previously 
committed to the Department of Veterans Affairs, demands release and 
continued hospitalization is necessary for the veteran's safety or the 
safety of others, and the Regional Counsel determines the commitment to 
be illegal, immediate action will be taken to obtain a legal commitment.
    (4) Restoration proceedings. When a veteran has been a committed 
patient in a Department of Veterans Affairs hospital and is subsequently 
rated competent by the Department of Veterans Affairs, the Regional 
Counsel upon request, may institute proceedings necessary to restore the 
veteran to full civil rights.



Sec. 14.702  Medical testimony in commitment or restoration proceedings.

    (a) Commitment. When permissable under State law, Department of 
Veterans Affairs physicans, upon request of the Regional Counsel, will 
sign interrogatories or certificates of mental illness or insanity and, 
unless unavailable, as provided in paragraph (c) of this section, will 
testify in proceedings which the Regional Counsel is authorized to 
institute under Sec. 14.701 to commit eligible veterans to the 
Department of Veterans Affairs.
    (b) Restoration. (1) When permissible under State law, Department of 
Veterans Affairs physicans, upon the request of the Regional Counsel, 
will testify in proceedings brought for the purpose of restoring a 
committed veteran to full civil rights when the veteran is a committed 
patient in a Department of Veterans Affairs hospital.
    (2) The Director of a Department of Veterans Affairs hospital or the 
Regional Counsel upon discharge of the veteran, may furnish a 
certificate of sanity or such similar certificate to the proper civil 
authorities.
    (c) Employment of private physicians. When testimony of Department 
of Veterans Affairs physicians is prohibited

[[Page 569]]

or is unavailable because of a duty assignment, comparative expense or 
other valid reason, the Director of the Department of Veterans Affairs 
hospital, upon recommendation of the Regional Counsel, may employ any 
qualified physician for preliminary examination of the veteran and for 
testimony in any commitment or restoration proceeding which the Regional 
Counsel is authorized to institute under Sec. 14.701, and authorize the 
payment of a fee not to exceed the prescribed fee, or in the absence 
thereof, the customary fee charged for the service rendered.



Sec. 14.703  Costs in commitment or restoration proceedings.

    (a) When authorized to institute a proceeding under Sec. 14.701, 
the Regional Counsel may authorize in advance or thereafter the payment 
or reimbursement of costs and other expenses for which the veteran is 
legally liable, including publication of notice necessary to accomplish 
the commitment.
    (b) The Regional Counsel also may authorize the payment of necessary 
costs and expenses for which the veteran is legally liable incident to 
his or her restoration to full civil rights in any case in which the 
Regional Counsel ia authorized to institute restoration proceedings 
under Sec. 14.701(b)(4).



Sec. 14.704  Authorization of transportation necessary for commitment 
of a veteran beneficiary.

    When a mentally ill veteran who should be committed is hospitalized 
by the Department of Veterans Affairs and under the law of the State 
wherein the hospital is located, a commitment may not be had locally, 
the veteran may be returned temporarily to the jurisdiction of the 
appropriate court in order that the commitment can be accomplished. If 
the veteran is in a Department of Veterans Affairs hospital, the 
Hospital Director may authorize travel of the veteran and an attendant 
or attendants, if necessary, upon request of the Regional Counsel. If 
the veteran is being maintained in a non-Department of Veterans Affairs 
hospital, the Director of the facility authorizing and paying for the 
care may authorize such travel upon request of the Regional Counsel.



Sec. 14.705  Authority to file petitions for appointment of fiduciaries 
in State courts.

    (a) Adult beneficiary. The Regional Counsel is authorized to file or 
cause to be filed on behalf of a petitioner in a case coming within 
Sec. 14.706(a) a petition for the appointment of a fiduciary and all 
necessary legal papers for an adult beneficiary only if it has been 
determined that alternative methods of payment would not be to the best 
interests of the beneficiary and when the Regional Counsel has obtained 
the written consent of:
    (1) The beneficiary's spouse.
    (2) The beneficiary's adult child, parent, adult brother or sister 
if the beneficiary is unmarried, or consent of the spouse is immaterial 
because of estrangement or mental incapacity, or refusal to consent 
coupled with failure to offer adequate alternative means for providing 
for the beneficiary's needs.
    (3) A civil official or representative of a cooperating agency when 
none of the relative listed in paragraph (a) (1) and (2) of this section 
can be located after reasonable inquiry or those located are not 
mentally competent to consent or refuse without offering adequate 
alternative means for providing for the needs of the beneficiary.
    (b) Minor beneficiaries. The Regional Counsel is authorized to file 
or cause to be filed on behalf of a petitioner in a case coming within 
Sec. 14.706(a) a petition for the appointment of a fiduciary for a 
minor. If permissible under the law of the jurisdiction concerned and if 
it has been determined that protection of the minor's rights under laws 
administered by the Department of Veterans Affairs requires the 
appointment, provided: the written consent of the minor's natural or 
adoptive parent or parents or the person or persons occupying the 
relationship of ``in loco parentis'' as defined, by the law of the 
jurisdiction, in which they reside has been obtained. The Regional 
Counsel will not institute a court proceeding for the appointment of a 
fiduciary over the objections of such parent or parents if they are sui 
juris unless the parent or parents have abandoned the minor or have 
otherwise

[[Page 570]]

refused to meet their parental obligations toward the minor or they have 
previously been appointed or recognized as the minor's fiduciary and 
failed to properly execute the duties of their trust. If the minor has 
no parent or the parent or parents are not sui juris, the Regional 
Counsel may file the petition without the consent of any relative.
    (c) Court-appointed fiduciaries. In court-appointed fiduciary cases, 
the Regional Counsel may appear in the court of appointment or in any 
court having original, concurrent, or appellate jurisdiction, and make 
proper presentation relating to the foregoing matters. The Regional 
Counsel's authority includes by is not limited to:
    (1) Petitioning the court to cite a fiduciary to account;
    (2) Filing exceptions to accountings;
    (3) Requiring fiduciaries to file bonds or make any necessary 
adjustments;
    (4) Requiring investments;
    (5) Filing petitions to vacate or modify court orders;
    (6) Appearing or intervening in any State court as attorney for the 
Secretary of Veterans Affairs in litigation instituted by the Secretary 
or otherwise affecting money paid to such fiduciary by the Department of 
Veterans Affairs;
    (7) Incurring necessary court costs and other expenses, including 
witness fees, appeal bonds, advertising in any newspaper or other 
publication, preparing briefs or transcripts, purchase of records of 
trial or other records;
    (8) Instituting any other action necessary to secure proper 
administration of the estate of a Department of Veterans Affairs 
beneficiary, such as filing petitions for the removal of a fiduciary and 
appointment of a successor;
    (9) Taking appropriate action to recover funds improperly disbursed.
    (d) Appeal. Unless a trial is de novo, no appeal shall be taken to 
an appellate court and no costs incurred in connection therewith without 
the prior approval of the General Counsel and the Under Secretary for 
Benefits or their designees.



Sec. 14.706  Legal services in behalf of beneficiaries.

    (a) The Regional Counsel may furnish legal services in behalf of 
minor and incompetent beneficiaries of the Department of Veterans 
Affairs in fiduciary appointment and estate administration matters 
involving Department of Veterans Affairs benefits or property derived 
therefrom when the beneficiary's estate or income is not sufficient to 
justify the employment of an attorney.
    (b) The Regional Counsel may also furnish legal services in hardship 
situations when restoration from legal disability is a condition of 
precedent to direct payment of Department of Veterans Affairs benefits.
    (c) Where the fiduciary does not in due course institute the 
necessary action to terminate the trust relationship and the beneficiary 
requests representation by the Regional Counsel or in any such case 
where there is in question the proper administration of the estate, the 
Regional Counsel may file the necessary action and supply legal 
services. Costs, unless assessed against the fiduciary, should be 
charged to the estate of the beneficiary.



Sec. 14.707  Authorization of transportation of a veteran beneficiary 
for appointment of a fiduciary.

    When the appointment of a fiduciary is required for an incompetent 
veteran hospitalized by the Department of Veterans Affairs and, under 
the law of the State wherein the hospital is located, the appointment 
cannot be had locally, the veteran may be returned temporarily to the 
jurisdiction of the appropriate court in order that the appointment can 
be accomplished. If the veteran is in a Department of Veterans Affairs 
hospital, the Hospital Director, upon request of the Regional Counsel, 
may authorize travel of the veteran and an attendant or attendants, if 
necessary. If the veteran is being maintained in a non-Department of 
Veterans Affairs hospital, the Director of the facility authorizing and 
paying for the care may authorize such travel upon request of the 
Regional Counsel.

[[Page 571]]



Sec. 14.708  Costs and other expenses incident to appointment of 
fiduciary.

    (a) The Regional Counsel may authorize the payment of costs and 
other necessary expenses incident to the appointment of an initial or 
successor fiduciary for a Department of Veterans Affairs beneficiary 
when:
    (1) Authorized to render legal services under Sec. 14.706.
    (2) Appointment was caused by the Department of Veterans Affairs and 
it develops that no benefits are payable and there is no estate from 
which costs may be paid.
    (3) Costs must be advanced when there is no immediate estate from 
which same may be paid. These costs are to be recovered from benefits 
payable unless the case falls within paragraph (a)(1) of this section.
    (b) Costs and necessary expenses include:
    (1) All those chargeable by statute or rule of court and certified 
by the clerk of court.
    (2) Certified copies of court records required by the Department of 
Veterans Affairs.
    (3) Fees for guardian ad litem when chargeable as court costs and 
required by State law.



Sec. 14.709  Surety bonds; court-appointed fiduciary.

    (a) It is the policy of the Department of Veterans Affairs to 
require, where possible under State laws and rules of the court, 
corporate surety bonds in all court-appointed fiduciary cases where the 
fiduciary is an individual and the estate is sufficient to justify the 
expense of procuring a corporate surety bond. Corporate bonds may be 
required of corporate fiduciaries in accordance with State laws. In 
cases wherein fiduciaries neglect or refuse to furnish corporate bonds, 
as requested by the Regional Counsel, the Regional Counsel should take 
appropriate court action and notify the Veterans Services Officer.
    (b) When it is not practical or feasible to require a fiduciary to 
furnish a corporate surety bond, the Regional Counsel is authorized to 
accept bonds with such number of personal sureties as is permissible 
under State law, but in no event less than one. To be acceptable for 
Department of Veterans Affairs purposes, each personal surety must be 
worth at least the penal sum named in the bond over and above all debts, 
liabilities and exemptions and qualify in accordance with the 
requirements of State law. The Regional Counsel will request suitable 
evidence of financial responsibility whenever there is any question as 
to the ability of a personal surety to meet any probable liability. When 
suitable evidence is not furnished as requested, or financial 
responsibility is found to be insufficient to meet the penal sum of the 
bond, the Regional Counsel should take appropriate court action and 
notify the Veterans Services Officer.
    (c) It is the policy of the Department of Veterans Affairs to 
require surety bonds in an amount commensurate with value of the 
personal estate derived from Department of Veterans Affairs benefits 
plus the anticipated net income from Department of Veterans Affairs 
benefits received during the ensuing accounting period. In cases where 
the fiduciaries neglect or refuse to furnish surety bonds in the amount 
requested by the Regional Counsel, the Regional Counsel should take 
appropriate court action and notify the Veterans Service Officer. When 
permissible under State law, the Regional Counsel may accept, without 
objection, a lesser degree of protection approved by the court when it 
is determined that such action will adequately protect the beneficiary's 
estate.

 Testimony of Department Personnel and Production of Department Records 
                          in Legal Proceedings

    Source: 59 FR 6566, Feb. 11, 1994, unless otherwise noted.



Sec. 14.800  Purpose.

    Sections 14.800 through 14.810 establish policy, assign 
responsibilities and prescribe procedures with respect to:
    (a) The production or disclosure of official information or records 
of the Department of Veterans Affairs (VA); and
    (b) The testimony of present or former VA personnel relating to any 
official information acquired by any individual as part of that 
individual's performance of official duties, or by

[[Page 572]]

virtue of that individual's official status, in federal, state or other 
legal proceedings covered by these regulations.

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)



Sec. 14.801  Applicability.

    (a) Sections 14.800 through 14.810 apply to:
    (1) Contractors and subcontractors which undertake a VA activity or 
maintain VA records when the contract covering their actions provides 
that these regulations apply, as well as the personnel of contractors 
and subcontractors.
    (2) All components of the Department, including Canteen Service, the 
Office of Inspector General, and all staff offices, services and 
administrations, and their personnel.
    (b) Sections 14.800 through 14.810 do not apply to:
    (1) Testimony or records provided in accordance with Office of 
Personnel Management regulations implementing 5 U.S.C. 6322.
    (2)(i) Legal proceedings in which the Department of Veterans 
Affairs, the Secretary of Veterans Affairs or the United States is a 
party, is represented or has a direct and substantial interest; or
    (ii) Legal proceedings in which an individual or entity is a party 
for whom the United States is providing representation.
    (3) Legal proceedings in which VA personnel are to testify while in 
leave or off-duty status as to matters which are purely personal and 
that do not arise out of, or relate in any way to, the personnel's 
official duties or to the functions and activities of the VA or the 
United States.
    (4) Official comments on matters in legal proceedings, where 
appropriate.
    (5) Disclosures, in the absence of a request or demand, of 
information or records by VA components, particularly the Office of 
Inspector General, to federal, state, local and foreign law enforcement 
or regulatory agencies.
    (6) Congressional demands or requests for testimony or documents.
    (7) Requests for, and release of, records under the Freedom of 
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
    (8) Disclosures in child support and alimony proceedings under the 
authority of 42 U.S.C. 659 and regulations promulgated by the Office of 
Personnel Management implementing that section.
    (9) Legal proceedings before or involving the VA concerning a claim 
or dispute as to the rights of a beneficiary or obligations or 
liabilities of the United States under any law or program administered 
by the Department of Veterans Affairs.
    (10) Requests by a veteran or that veteran's representative for 
access to the veteran's records for use in an administrative or judicial 
claim for benefits administered by the Department of Veterans Affairs.
    (11) Foreign legal proceedings covered by Department of State 
procedures governing the production of records or witnesses in response 
to requests or demands in connection with foreign legal proceedings.
    (c) Sections 14.800 through 14.810 are not intended to, and do not:
    (1) Waive the sovereign immunity of the United States;
    (2) Infringe upon or displace the responsibilities committed to the 
Department of Justice in conducting litigation on behalf of the United 
States in appropriate cases;
    (3) Remove the need for the Department to comply with any applicable 
legal confidentiality provisions, such as the Privacy Act, before having 
the legal authority to make any disclosure or providing any testimony 
under these regulations. (Sections 14.800 through 14.810 do not give VA 
disclosure authority under applicable confidentiality statutes; absent 
disclosure authority granted by those statutes, information and records 
subject to those laws may not be disclosed, or testimony given as to 
them under the procedures established in these regulations); or
    (4) Preclude treating any written request for agency records that is 
not in the nature of a request or demand related to legal proceedings as 
a request under the Freedom of Information or Privacy Acts.

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

[[Page 573]]



Sec. 14.802  Definitions.

    (a) Demand. Order, subpoena, or other demand of a court of competent 
jurisdiction, or other specific authority or under color of law, for the 
production, disclosure, or release of VA information or records or for 
the appearance and testimony of VA personnel as witnesses.
    (b) Request. Any informal request, by whatever method, from a party, 
a party's attorney, or any person acting on behalf of a party, for the 
production of VA records or information or for the testimony of VA 
personnel as witnesses, which has not been ordered by a court of 
competent jurisdiction or other specific authority or under color of 
law.
    (c) VA personnel. All present and former officers and employees of 
the VA and any other individuals who are or have been appointed by, or 
subject to the supervision, jurisdiction, or control of the Secretary of 
Veterans Affairs or another official of the VA, including 
nonappropriated fund activity employees, and other individuals hired 
through contractual agreements by or on behalf of the VA, or performing 
services under such agreements for VA, such as consultants, contractors, 
subcontractors, their employees and personnel. This phrase also includes 
individuals who served or are serving on any advisory committee or in 
any advisory capacity, whether formal or informal.
    (d) Legal proceedings. All pretrial, trial, and post-trial stages of 
all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before courts, 
commissions, boards, or other tribunals, foreign or domestic that are 
not specified in Sec. 14.801(b). This phrase includes depositions and 
other pretrial proceedings, as well as responses to formal or informal 
requests by attorneys or others in situations involving legal 
proceedings not specified in Sec. 14.801(b).
    (e) Official VA information. All information of any kind, however 
stored, that is in the custody and control of VA or was acquired by VA 
personnel as part of their official duties or because of their official 
status.
    (f) Testimony. Testimony in any form, including personal appearances 
in court, depositions, recorded interviews, telephonic, televised or 
videotaped testimony or any response during discovery or similar 
proceedings, which response would involve more than the production of 
records.
    (g) VA records. All documents which are records of the Department of 
Veterans Affairs for purposes of the Freedom of Information Act, 5 
U.S.C. 552, regardless of storage media, including the term ``record'' 
as defined in 44 U.S.C. 3301, and implementing regulations.

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)



Sec. 14.803  Policy.

    (a) VA personnel may provide testimony or produce VA records in 
legal proceedings covered by Sec. Sec. 14.800 through 14.810 only as 
authorized in accordance with these regulations. In determining whether 
to authorize testimony or the production of records, the determining 
official will consider the effect in this case, as well as in future 
cases generally, based on the factors set forth in Sec. 14.804, which 
testifying or producing records not available for public disclosure will 
have on the ability of the agency or VA personnel to perform their 
official duties.
    (b) The Department of Veterans Affairs does not seek to deny its 
employees access to the courts as citizens, or in the employees' private 
capacities on off-duty time.
    (c) The Department of Veterans Affairs does not seek to deny the 
Nation's veterans access to the courts.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.804  Factors to consider.

    In deciding whether to authorize the disclosure of VA records or 
information or the testimony of VA personnel, VA personnel responsible 
for making the decision should consider the following types of factors:
    (a) The need to avoid spending the time and money of the United 
States for private purposes and to conserve the time of VA personnel for 
conducting their official duties concerning

[[Page 574]]

servicing the Nation's veteran population;
    (b) How the testimony or production of records would assist VA in 
performing its statutory duties;
    (c) Whether the disclosure of the records or presentation of 
testimony is necessary to prevent the perpetration of fraud or other 
injustice in the matter in question;
    (d) Whether the demand or request is unduly burdensome or otherwise 
inappropriate under the applicable court or administrative rules;
    (e) Whether the testimony or production of records, including 
release in camera, is appropriate or necessary under the rules of 
procedure governing the case or matter in which the demand or request 
arose, or under the relevant substantive law concerning privilege;
    (f) Whether the testimony or production of records would violate a 
statute, executive order, regulation or directive. (Where the production 
of a record or testimony as to the content of a record or about 
information contained in a record would violate a confidentiality 
statute's prohibition against disclosure, disclosure will not be made. 
Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and 
sections 5701, 5705 and 7332 of title 38, United States Code.);
    (g) Whether the testimony or production of records, except when in 
camera and necessary to assert a claim of privilege, would reveal 
information properly classified pursuant to applicable statutes or 
Executive Orders;
    (h) Whether the testimony would interfere with ongoing law 
enforcement proceedings, compromise constitutional rights, compromise 
national security interests, hamper VA or private health care research 
activities, reveal sensitive patient or beneficiary information, 
interfere with patient care, disclose trade secrets or similarly 
confidential commercial or financial information or otherwise be 
inappropriate under the circumstances.
    (i) Whether such release or testimony reasonably could be expected 
to result in the appearance of VA or the Federal government favoring one 
litigant over another;
    (j) Whether such release or testimony reasonably could be expected 
to result in the appearance of VA or the Federal government endorsing or 
supporting a position advocated by a party to the proceeding;
    (k) The need to prevent the public's possible misconstruction of 
variances between personal opinions of VA personnel and VA or Federal 
policy.
    (l) The need to minimize VA's possible involvement in issues 
unrelated to its mission;
    (m) Whether the demand or request is within the authority of the 
party making it;
    (n) Whether the demand or request is sufficiently specific to be 
answered;
    (o) Other matters or concerns presented for consideration in making 
the decision.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.805  Contents of a demand or request.

    The request or demand for testimony or production of documents shall 
set forth in, or be accompanied by, an affidavit, or if that is not 
feasible, in, or accompanied by, a written statement by the party 
seeking the testimony or records or by the party's attorney, a summary 
of the nature and relevance of the testimony or records sought in the 
legal proceedings containing sufficient information for the responsible 
VA official to determine whether VA personnel should be allowed to 
testify or records should be produced. Where the materials are 
considered insufficient to make the determination as described in Sec. 
14.807, the responsible VA official may ask the requester to provide 
additional information.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.806  Scope of testimony or production.

    VA personnel shall not, in response to a request or demand for 
testimony or production of records in legal proceedings, comment or 
testify or produce records without the prior written approval of the 
responsible VA official designated in Sec. 14.807(b). VA personnel may 
only testify concerning or comment upon official VA information,

[[Page 575]]

subjects or activities, or produce records, that were specified in 
writing, submitted to and properly approved by the responsible VA 
official.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.807  Procedure when demand or request is made.

    (a) VA personnel upon whom a demand or request for testimony or the 
production of records in connection with legal proceedings as defined in 
Sec. 14.802(d) is made shall notify the head of his or her field 
station, or if in Central Office, the head of the component for which he 
or she works. The field station or Central Office component shall notify 
the responsible VA official designated in Sec. 14.807(b).
    (b) In response to a demand or request for the production of records 
or the testimony of VA personnel, other than personnel in the Office of 
the Inspector General (OIG), as witnesses in legal proceedings covered 
by these regulations, the General Counsel, the Regional Counsel, an 
attorney in the Office of General Counsel designated by the General 
Counsel, or an attorney in the Regional Counsel office designated by the 
Regional Counsel is the responsible VA official authorized to determine 
whether VA personnel may be interviewed, contacted or used as witnesses, 
including used as expert witnesses, and whether VA records may be 
produced; and what, if any, conditions will be imposed upon such 
interview, contact, testimony or production of records. For personnel in 
the OIG, the Counselor to the Inspector General or an attorney 
designated by the Counselor to the Inspector General, is the responsible 
VA official authorized to make the determinations provided in Sec. 
14.807, and that official will keep the General Counsel informed of such 
determinations for purposes of litigation or claims of privilege.
    (c) In appropriate cases, the responsible VA official shall promptly 
notify the Department of Justice of the demand or request. After 
consultation and coordination with the Department of Justice, as 
required, and after any necessary consultation with the VA component 
which employs or employed the VA personnel whose testimony is sought or 
which is responsible for the maintenance of the records sought, the VA 
official shall determine in writing whether the individual is required 
to comply with the demand or request and shall notify the requester or 
the court or other authority of the determination reached where the 
determination is that VA will not comply fully with the request or 
demand. The responsible VA official shall give notice of the decision to 
other persons as circumstances may warrant. Oral approval may be 
granted, and a record of such approval made and retained in accordance 
with the procedures in Sec. 14.807(f) concerning oral requests or 
demands.
    (d) If, after VA personnel have received a request or demand in a 
legal proceeding and have notified the responsible VA official in 
accordance with this section, a response to the request or demand is 
required before instructions from the responsible official are received, 
the responsible official designated in paragraph (b) of this section 
shall furnish the requester or the court or other authority with a copy 
of Sec. Sec. 14.800 through 14.810 and any other relevant 
documentation, inform the requester or the court or other authority that 
the request or demand is being reviewed, and seek a stay of the request 
or demand pending a final determination by the VA official concerned.
    (e) If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the demand or request in 
response to action taken pursuant to Sec. 14.807(d), or if such court 
or other authority orders that the demand or request be complied with 
notwithstanding the final decision of the appropriate VA official, the 
VA personnel upon whom the demand or request was made shall notify the 
responsible VA official of such ruling or order. If the responsible VA 
official determines that no further legal review of or challenge to the 
ruling or order will be sought, the affected VA personnel shall comply 
with the demand, order or request. If directed by the appropriate VA 
official after consultation with the appropriate United States 
Attorney's office, however, the affected VA personnel shall respectfully 
decline to comply with the demand, request or

[[Page 576]]

order. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (f) Normally, written demands or requests allowing reasonable lead 
time for evaluation and processing are required. However, in emergency 
situations where response time is limited and a written demand or 
request is impractical, the following procedures should be followed:
    (1) The responsible VA official has the authority to waive the 
requirement of a written demand or request and may expedite a response 
in the event of an emergency under conditions which could not be 
anticipated in the course of proper planning or which demonstrate a good 
faith attempt to comply with these regulations. Determinations on oral 
demands or requests should be reserved for instances where insistence on 
compliance with the requirements of a proper written request would 
result in the effective denial of the request and cause an injustice in 
the outcome of the legal proceeding for which the testimony or records 
are sought. No requester has a right to make an oral demand or request 
and receive a determination, however. Whether to permit such an 
exceptional procedure is a decision within the sole discretion of the 
responsible VA official.
    (2) If the responsible VA official concludes that the demand or 
request, or any portion of it, should be granted (after considering the 
factors listed in Sec. 14.804), the responsible VA official will then 
orally advise the requester of the determination in accordance with the 
procedures provided in Sec. 14.807(c), including any limitations on 
such testimony or production of records, and seek a written confirmation 
of the oral demand or request. The responsible VA official will make a 
written record of the determination made concerning the oral demand or 
request, including the grant or denial, the circumstances requiring the 
procedure, and the conditions to which the requester agreed.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.808  Expert or opinion testimony.

    (a) VA personnel shall not provide, with or without compensation, 
opinion or expert testimony in any legal proceedings concerning official 
VA information, subjects or activities, except on behalf of the United 
States or a party represented by the United States Department of 
Justice. Upon a showing by the requester or court or other appropriate 
authority that, in light of the factors listed in Sec. 14.804, there 
are exceptional circumstances and that the anticipated testimony will 
not be adverse to the interests of the Department of Veterans Affairs or 
to the United States, the responsible VA official designated in Sec. 
14.807(b) may, in writing, grant special authorization for VA personnel 
to appear and testify. If, despite the final determination of the 
responsible VA official, a court of competent jurisdiction or other 
appropriate authority, orders the expert or opinion testimony of VA 
personnel, the personnel shall notify the responsible VA official of 
such order. If the responsible VA official determines that no further 
legal review of or challenge to the order will be sought, the affected 
VA personnel shall comply with the order. If directed by the appropriate 
VA official after consultation with the appropriate United States 
Attorney's office, however, the affected VA personnel shall respectfully 
decline to comply with the demand, request or order. See United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (b)(1) If, while testifying in any legal proceeding, VA personnel 
are asked for expert or opinion testimony concerning official VA 
information, subjects or activities, which testimony has not been 
approved in advance in accordance with these regulations, the witness 
shall:
    (i) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by these regulations;
    (ii) Request an opportunity to consult with the responsible VA 
official mentioned in Sec. 14.807(b) before giving such testimony;
    (iii) Explain that, upon such consultation, approval for such 
testimony may be provided; and

[[Page 577]]

    (iv) Explain that providing such testimony absent such approval may 
expose the individual to criminal liability under 18 U.S.C. 201-209 and 
to disciplinary or other adverse personnel action.
    (2) If the witness is then ordered by the body conducting the 
proceeding to provide expert or opinion testimony concerning official VA 
information, subjects or activities without the opportunity to consult 
with the appropriate VA official, the witness respectfully shall refuse 
to do so. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) Upon notification by the witness of a request for opinion or 
expert testimony concerning official VA information, subjects or 
activities during Sec. 14.802(d) legal proceedings, the responsible VA 
official shall follow the procedures contained in this section to 
determine whether such testimony shall be approved.
    (d) If VA personnel who are unaware of these regulations provide 
expert or opinion testimony concerning official VA information, subjects 
or activities in any legal proceeding, including one mentioned in Sec. 
14.802(d) in which the United States is not already represented, without 
consulting with the responsible VA official, the witness, as soon after 
testifying as possible, shall inform the responsible VA official of the 
fact that such testimony was given and provide a summary of the expert 
or opinion testimony given.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.809  Demands or requests in legal proceedings for records 
protected by confidentiality statutes.

    In addition to complying with the requirements of Sec. Sec. 14.800 
through 14.810, requests or demands in legal proceedings for the 
production of records, or for testimony of VA employees concerning 
information, protected by the Privacy Act, 5 U.S.C. 552a, or other 
confidentiality statutes, such as 38 U.S.C. 5701, 5705 and 7332, must 
satisfy the requirements for disclosure imposed by those statutes, and 
implementing regulations, such as 38 CFR 1.511, before the records may 
be provided or testimony given. Accordingly, the responsible VA official 
may first determine whether there is legal authority to provide the 
testimony or records sought under applicable confidentiality statutes 
before applying Sec. Sec. 14.800 through 14.810. Where an applicable 
confidentiality statute mandates disclosure, Sec. Sec. 14.800 through 
14.810 will not apply.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



Sec. 14.810  Fees.

    (a) The testimony of VA personnel as witnesses, particularly as 
expert witnesses, and the production of VA records in legal proceedings 
subject to Sec. Sec. 14.800 through 14.810 are services which convey 
special benefits to the individuals or entities seeking such testimony 
or production of records above and beyond those accruing to the general 
public. These services are not regularly received by or available 
without charge to the public at large. Consequently, these are the sort 
of services for which the VA may establish a charge for providing under 
31 U.S.C. 9701. The responsible VA official will determine all fees 
associated with Sec. Sec. 14.800 through 14.810, and shall timely 
notify the requester of the fees, particularly those which are to be 
paid in advance.
    (b)(1) When a request is granted under Sec. 14.808 to permit VA 
personnel to testify in whole or in part as to expert, opinion or policy 
matters, the requester shall pay to the government a fee calculated to 
reimburse the cost of providing the witness. The fee shall include:
    (i) Costs of the time expended by VA personnel to process and 
respond to the demand or request;
    (ii) Costs of attorney time expended in reviewing the demand or 
request and any information located in connection with the demand or 
request;
    (iii) Expenses generated by materials and equipment used to search 
for, produce, and copy the responsive information;
    (iv) The cost of the time expended by the witness to prepare to 
testify; and
    (v) Costs of travel by the witness and attendance at trial.

[[Page 578]]

    (2) All costs for documents necessary for such expert testimony 
shall be calculated as provided in VA regulations implementing the fee 
provisions of the Freedom of Information Act, 5 U.S.C. 552.
    (c) When an individual testifies in legal proceedings covered by 
these regulations in any capacity other than as an expert witness, the 
requester shall pay to the witness the fee and expenses prescribed for 
attendance by the applicable rule of court. If no such fee is 
prescribed, the applicable Federal rule, such as a local Federal 
district court rule, will apply. No additional fee will be prescribed 
for the time spent while testifying or in attendance to do so.
    (d) When a requester wishes to interview VA personnel as part of 
legal proceedings covered by these regulations, and such interview has 
been approved in accordance with these regulations, the requester shall 
pay a fee calculated upon the total hourly pay of the individual 
interviewed.
    (e) When VA produces records in legal proceedings pursuant to 
Sec. Sec. 14.800 through 14.810, the fees to be charged and paid prior 
to production of the records shall be the fees charged by VA under its 
regulations implementing the fee provisions of the Freedom of 
Information Act, 5 U.S.C. 552.
    (f) Fees shall be paid as follows:
    (1) Fees for copies of documents, blueprints, electronic tapes, or 
other VA records will be paid to the VA office or station providing the 
records, and covered to the General Fund of the Department of the 
Treasury.
    (2) Witness fees for testimony shall be paid to the witness, who 
shall endorse the check ``pay to the United States,'' and surrender it 
to his or her supervisor. It shall thereafter be deposited in the 
General Fund.
    (3) The private party requesting a VA witness shall forward in 
advance necessary round trip tickets and all requisite travel and per 
diem funds.
    (g) A waiver of any fees in connection with the testimony of an 
expert witness may be granted by the appropriate VA official at the 
official's discretion provided that the waiver is in the interest of the 
United States. Fee waivers shall not be routinely granted, nor shall 
they be granted under circumstances which might create the appearance 
that the VA or the United States favors one party or a position 
advocated by a party to the legal proceeding.

(Authority: 38 U.S.C. 501 (a) and (b); 5 U.S.C. 301)



PART 15_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF VETERANS AFFAIRS
--Table of Contents




Sec.
15.101 Purpose.
15.102 Application.
15.103 Definitions.
15.104-15.109 [Reserved]
15.110 Self-evaluation.
15.111 Notice.
15.112-15.129 [Reserved]
15.130 General prohibitions against discrimination.
15.131-15.139 [Reserved]
15.140 Employment.
15.141-15.148 [Reserved]
15.149 Program accessibility: Discrimination prohibited.
15.150 Program accessibility: Existing facilities.
15.151 Program accessibility: New construction and alterations.
15.152-15.159 [Reserved]
15.160 Communications.
15.161-15.169 [Reserved]
15.170 Compliance procedures.
15.171-15.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25885, July 8, 1988, unless otherwise noted.



Sec. 15.101  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 15.102  Application.

    This regulation (Sec. Sec. 15.101-15.170) applies to all programs 
or activities conducted by the agency, except for programs or activities 
conducted outside

[[Page 579]]

the United States that do not involve individuals with handicaps in the 
United States.



Sec. 15.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.

As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--

[[Page 580]]

    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 15.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 15.104-15.109  [Reserved]



Sec. 15.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 15.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 15.112-15.129  [Reserved]



Sec. 15.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit,

[[Page 581]]

or service that is not equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 15.131-15.139  [Reserved]



Sec. 15.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 15.141-15.148  [Reserved]



Sec. 15.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 15.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from

[[Page 582]]

participation in, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.



Sec. 15.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 15.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 15.150(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to individuals with 
handicaps. In cases where a physical alteration to an historic property 
is not required because of Sec. 15.150(a)(2) or (3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be

[[Page 583]]

undertaken to achieve program accessibility, the agency shall develop, 
by March 6, 1989, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps or 
organizations representing individuals with handicaps, to participate in 
the development of the transition plan by submitting comments (both oral 
and written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 15.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 15.152-15.159  [Reserved]



Sec. 15.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 15.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not

[[Page 584]]

result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.



Sec. Sec. 15.161-15.169  [Reserved]



Sec. 15.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Deputy Assistant Secretary for Resolution Management shall 
be responsible for coordinating implementation of this section. 
Complaints may be sent to the Secretary of Veterans Affairs or the 
Deputy Assistant Secretary for Resolution Management at the following 
address: Department of Veterans Affairs, 810 Vermont Avenue NW., 
Washington, DC 20420.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 15.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 25885, July 8, 1988, as amended at 53 FR 25885, July 8, 1988; 54 
FR 34982, Aug. 23, 1989; 67 FR 3435, Jan. 24, 2002]



Sec. Sec. 15.171-15.999  [Reserved]



PART 16_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
16.101 To what does this policy apply?
16.102 Definitions.
16.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal Department or Agency.
16.104-16.106 [Reserved]
16.107 IRB membership.
16.108 IRB functions and operations.
16.109 IRB review of research.
16.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
16.111 Criteria for IRB approval of research.
16.112 Review by institution.

[[Page 585]]

16.113 Suspension or termination of IRB approval of research.
16.114 Cooperative research.
16.115 IRB records.
16.116 General requirements for informed consent.
16.117 Documentation of informed consent.
16.118 Applications and proposals lacking definite plans for involvement 
          of human subjects.
16.119 Research undertaken without the intention of involving human 
          subjects.
16.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal Department 
          or Agency.
16.121 [Reserved]
16.122 Use of Federal funds.
16.123 Early termination of research support: Evaluation of applications 
          and proposals.
16.124 Conditions.

    Authority: 5 U.S.C. 301; 38 U.S.C. 501, 7331, 7334; 42 U.S.C. 300v-
1(b).

    Source: 56 FR 28012, 28021, June 18, 1991, unless otherwise noted.



Sec. 16.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 16.102(e), 
must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in Sec. 
16.102(e) must be reviewed and approved, in compliance with Sec. Sec. 
16.101, 16.102, and Sec. Sec. 16.107 through 16.117 of this policy, by 
an institutional review board (IRB) that operates in accordance with the 
pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and (ii) any disclosure of the human subjects' responses 
outside the research could reasonably place the subjects at risk of 
criminal or civil liability or be damaging to the subjects' financial 
standing, employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates for public office; or (ii) federal statute(s) require(s) 
without exception that the confidentiality of the personally 
identifiable information will be maintained throughout the research and 
thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.

[[Page 586]]

    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs; (ii) procedures for 
obtaining benefits or services under those programs; (iii) possible 
changes in or alternatives to those programs or procedures; or (iv) 
possible changes in methods or levels of payment for benefits or 
services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head may approve the 
substitution of the foreign procedures in lieu of the procedural 
requirements provided in this policy. Except when otherwise required by 
statute, Executive Order, or the department or agency head, notices of 
these actions as they occur will be published in the Federal Register or 
will be otherwise published as provided in department or agency 
procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in such other manner as provided in department or agency procedures.\1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28021, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]

[[Page 587]]



Sec. 16.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily life or during the 
performance of routine physical or psychological examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 16.103  Assuring compliance with this policy--research conducted 
or supported by any Federal Department or Agency.

    (a) Each institution engaged in research which is covered by this 
policy

[[Page 588]]

and which is conducted or supported by a federal department or agency 
shall provide written assurance satisfactory to the department or agency 
head that it will comply with the requirements set forth in this policy. 
In lieu of requiring submission of an assurance, individual department 
or agency heads shall accept the existence of a current assurance, 
appropriate for the research in question, on file with the Office for 
Human Research Protections, HHS, or any successor office for federalwide 
use by that office. When the existence of an HHS-approved assurance is 
accepted in lieu of requiring submission of an assurance, reports 
(except certification) required by this policy to be made to department 
and agency heads shall also be made to the Office for Human Research 
Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 16.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 16.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf

[[Page 589]]

of the institution the obligations imposed by this policy and shall be 
filed in such form and manner as the department or agency head 
prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 16.101 (b) or (i). An institution with an approved assurance shall 
certify that each application or proposal for research covered by the 
assurance and by Sec. 16.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 16.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. Sec. 16.104-16.106  [Reserved]



Sec. 16.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who are 
knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.

[[Page 590]]

    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 16.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 16.103(b)(4) and, to the extent required by, Sec. 16.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
16.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 16.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 16.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 16.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 16.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.110  Expedited review procedures for certain kinds of research 

involving no more than minimal risk, and for minor changes in approved 
research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of

[[Page 591]]

the IRB. In reviewing the research, the reviewers may exercise all of 
the authorities of the IRB except that the reviewers may not disapprove 
the research. A research activity may be disapproved only after review 
in accordance with the non-expedited procedure set forth in Sec. 
16.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 16.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 16.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 16.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.



Sec. 16.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator,

[[Page 592]]

appropriate institutional officials, and the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 16.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
16.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. Sec. 16.103(b)(4) and 16.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 16.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph (c) or (d) of this section, in seeking informed consent the 
following information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;

[[Page 593]]

    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and
    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to

[[Page 594]]

provide emergency medical care, to the extent the physician is permitted 
to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 16.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 16.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28021, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 16.118  Applications and proposals lacking definite plans for 
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 16.101 (b) or (i), no human subjects may be 
involved in any project supported by these awards until the project has 
been reviewed and approved by the IRB, as provided in this policy, and 
certification submitted, by the institution, to the department or 
agency.



Sec. 16.119  Research undertaken without the intention of involving 
human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the

[[Page 595]]

research, the research shall first be reviewed and approved by an IRB, 
as provided in this policy, a certification submitted, by the 
institution, to the department or agency, and final approval given to 
the proposed change by the department or agency.



Sec. 16.120  Evaluation and disposition of applications and proposals 

for research to be conducted or supported by a Federal Department or 
Agency.

    (a) The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 16.121  [Reserved]



Sec. 16.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 16.123  Early termination of research support: Evaluation of 
applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 16.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.



PART 17_MEDICAL--Table of Contents




                       Definitions and Active Duty

Sec.
17.30 Definitions.
17.31 Duty periods defined.

                      Protection of Patient Rights

17.32 Informed consent.
17.33 Patients' rights.

                  Tentative Eligibility Determinations

17.34 Tentative eligibility determinations.

 Hospital or Nursing Home Care and Medical Services in Foreign Countries

17.35 Hospital care and medical services in foreign countries.

           Enrollment Provisions and Medical Benefits Package

17.36 Enrollment--provision of hospital and outpatient care to veterans.
17.37 Enrollment not required--provision of hospital and outpatient care 
          to veterans.
17.38 Medical benefits package.
17.39 Certain Filipino veterans.
17.40 Additional services for indigents.

              Examinations and Observation and Examination

17.41 Persons eligible for hospital observation and physical 
          examination.
17.42 Examinations on an outpatient basis.

[[Page 596]]

               Hospital, Domiciliary and Nursing Home Care

17.43 Persons entitled to hospital or domiciliary care.
17.44 Hospital care for certain retirees with chronic disability 
          (Executive Orders 10122, 10400 and 11733).
17.45 Hospital care for research purposes.
17.46 Eligibility for hospital, domiciliary or nursing home care of 
          persons discharged or released from active military, naval, or 
          air service.
17.47 Considerations applicable in determining eligibility for hospital, 
          nursing home or domiciliary care.
17.48 Compensated Work Therapy/Transitional Residences program.
17.49 Priorities for outpatient medical services and inpatient hospital 
          care.

  Use of Department of Defense, Public Health Service or Other Federal 
                                Hospitals

17.50 Use of Department of Defense, Public Health Service or other 
          Federal hospitals with beds allocated to the Department of 
          Veterans Affairs.
17.51 Emergency use of Department of Defense, Public Health Service or 
          other Federal hospitals.

                   Use of Public or Private Hospitals

17.52 Hospital care and medical services in non-VA facilities.
17.53 Limitations on use of public or private hospitals.
17.54 Necessity for prior authorization.
17.55 Payment for authorized public or private hospital care.
17.56 Payment for non-VA physician and other health care professional 
          services.

              Use of Community Nursing Home Care Facilities

17.57 Use of community nursing homes.
17.60 Extensions of community nursing home care beyond six months.

                       Community Residential Care

17.61 Eligibility.
17.62 Definitions.
17.63 Approval of community residental care facilities.
17.64 Exceptions to standards in community residential care facilities.
17.65 Duration of approval.
17.66 Notice of noncompliance with VA standards.
17.67 Request for a hearing.
17.68 Notice and conduct of hearing.
17.69 Waiver of opportunity for hearing.
17.70 Written decision following a hearing.
17.71 Revocation of VA approval.
17.72 Availability of information.

                Use of Services of Other Federal Agencies

17.80 Alcohol and drug dependence or abuse treatment and rehabilitation 
          in residential and nonresidential facilities by contract.
17.81 Contracts for residential treatment services for veterans with 
          alcohol or drug dependence or abuse disabilities.
17.82 Contracts for outpatient services for veterans with alcohol or 
          drug dependence or abuse disabilities.
17.83 Limitations on payment for alcohol and drug dependence or abuse 
          treatment and rehabilitation.

                        Research-Related Injuries

17.85 Treatment of research-related injuries to human subjects.

 Vocational Training and Health-Care Eligibility Protection for Pension 
                               Recipients

17.90 Medical care for veterans receiving vocational training under 38 
          U.S.C. chapter 15.
17.91 Protection of health-care eligibility.

                          Outpatient Treatment

17.92 Outpatient care for research purposes.
17.93 Eligibility for outpatient services.
17.94 Outpatient medical services for military retirees and other 
          beneficiaries.
17.95 Outpatient medical services for Department of Veterans Affairs 
          employees and others in emergencies.
17.96 Medication prescribed by non-VA physicians.
17.97 Prescriptions in Alaska, and territories and possessions.
17.98 Mental health services.

                          Breaking Appointments

17.100 Refusal of treatment by unnecessarily breaking appointments.

                    Charges, Waivers, and Collections

17.101 Collection or recovery by VA for medical care or services 
          provided or furnished to a veteran for a nonservice-connected 
          disability.
17.102 Charges for care or services.
17.103 Referrals of compromise settlement offers.
17.104 Terminations and suspensions.
17.105 Waivers.

Disciplinary Control of Beneficiaries Receiving Hospital, Domiciliary or 
                            Nursing Home Care

17.106 Authority for disciplinary action.

                               Copayments

17.108 Copayments for inpatient hospital care and outpatient medical 
          care.

[[Page 597]]

17.110 Copayments for medication.
17.111 Copayments for extended care services.

                               Ceremonies

17.112 Services or ceremonies on Department of Veterans Affairs hospital 
          or center reservations.

   Reimbursement for Loss By Natural Disaster of Personal Effects of 
                  Hospitalized or Nursing Home Patients

17.113 Conditions of custody.
17.114 Submittal of claim for reimbursement.
17.115 Claims in cases of incompetent patients.

   Reimbursement to Employees for the Cost of Repairing or Replacing 
  Certain Personal Property Damaged or Destroyed by Patients or Members

17.116 Adjudication of claims.

   Payment and Reimbursement of the Expenses of Medical Services Not 
                          Previously Authorized

17.120 Payment or reimbursement of the expenses of hospital care and 
          other medical services not previously authorized.
17.121 Limitations on payment or reimbursement of the costs of emergency 
          hospital care and medical services not previously authorized.
17.122 Payment or reimbursement of the expenses of repairs to prosthetic 
          appliances and similar devices furnished without prior 
          authorization.
17.123 Claimants.
17.124 Preparation of claims.
17.125 Where to file claims.
17.126 Timely filing.
17.127 Date of filing claims.
17.128 Allowable rates and fees.
17.129 Retroactive payments prohibited.
17.130 Payment for treatment dependent upon preference prohibited.
17.131 Payment of abandoned claims prohibited.
17.132 Appeals.

                    Reconsideration of Denied Claims

17.133 Procedures.

                        Delegations of Authority

17.140 Authority to adjudicate reimbursement claims.
17.141 Authority to adjudicate foreign reimbursement claims.
17.142 Authority to approve sharing agreements, contracts for scarce 
          medical specialist services and contracts for other medical 
          services.

              Transportation of Claimants and Beneficiaries

17.143 Transportation of claimants and beneficiaries.
17.144 Limitations.
17.145 Approval of unauthorized travel of claimants and beneficiaries.

              Prosthetic, Sensory, and Rehabilitative Aids

17.149 Sensori-neural aids.
17.150 Prosthetic and similar appliances.
17.151 Invalid lifts for recipients of aid and attendance allowance or 
          special monthly compensation.
17.152 Devices to assist in overcoming the handicap of deafness.
17.153 Training in the use of appliances.
17.154 Dog-guides and equipment for blind.

                Automotive Equipment and Driver Training

17.155 Minimum standards of safety and quality for automotive adaptive 
          equipment.
17.156 Eligibility for automobile adaptive equipment.
17.157 Definition-adaptive equipment.
17.158 Limitations on assistance.
17.159 Obtaining vehicles for special driver training courses.

                             Dental Services

17.160 Authorization of dental examinations.
17.161 Authorization of outpatient dental treatment.
17.162 Eligibility for Class II dental treatment without rating action.
17.163 Posthospital outpatient dental treatment.
17.164 Patient responsibility in making and keeping dental appointments.
17.165 Emergency outpatient dental treatment.
17.166 Dental services for hospital or nursing home patients and 
          domiciled members.

                                Autopsies

17.170 Autopsies.

                        Veterans Canteen Service

17.180 Delegation of authority.

            Aid to States for Care of Veterans in State Homes

17.190 Recognition of a State home.
17.191 Filing applications.
17.192 Approval of annexes and new facilities.
17.193 Prerequisites for payments to State homes.
17.194 Aid for domiciliary care.
17.196 Aid for hospital care.

[[Page 598]]

17.197 Amount of aid payable.
17.198 Department of Veterans Affairs approval of eligibility required.
17.199 Inspection of recognized State homes.
17.200 Audit of State homes.

        Sharing of Medical Facilities, Equipment, and Information

17.230 Contingency backup to the Department of Defense.
17.240 Sharing specialized medical resources.
17.241 Sharing medical information services.
17.242 Coordination of programs with Department of Health and Human 
          Services.

                   Grants for Exchange of Information

17.250 Scope of the grant program.
17.251 The Subcommittee on Academic Affairs.
17.252 Ex officio member of subcommittee.
17.253 Applicants for grants.
17.254 Applications.
17.255 Applications for grants for programs which include construction 
          projects.
17.256 Amended or supplemental applications.
17.257 Awards procedures.
17.258 Terms and conditions to which awards are subject.
17.259 Direct costs.
17.260 Patient care costs to be excluded from direct costs.
17.261 Indirect costs.
17.262 Authority to approve applications discretionary.
17.263 Suspension and termination procedures.
17.264 Recoupments and releases.
17.265 Payments.
17.266 Copyrights and patents.

   Civilian Health and Medical Program of the Department of Veterans 
Affairs (CHAMPVA)--Medical Care for Survivors and Dependents of Certain 
                                Veterans

17.270 General provisions.
17.271 Eligibility.
17.272 Benefit limitations/exclusions.
17.273 Preauthorization.
17.274 Cost sharing.
17.275 Claim filing deadline.
17.276 Appeal/review process.
17.277 Third party liability/medical care cost recovery.
17.278 Confidentiality of records.

                Grants to the Republic of the Philippines

17.350 The program of assistance to the Philippines.
17.351 Grants for the replacement and upgrading of equipment at Veterans 
          Memorial Medical Center.
17.352 Amounts and use of grant funds for the replacement and upgrading 
          of equipment.
17.355 Awards procedures.
17.362 Acceptance of medical supplies as payment.
17.363 Length of stay.
17.364 Eligibility determinations.
17.365 Admission priorities.
17.366 Authorization of emergency admissions.
17.367 Republic of the Philippines to print forms.
17.369 Inspections.
17.370 Termination of payments.

     Confidentiality of Healthcare Quality Assurance Review Records

17.500 General.
17.501 Confidential and privileged documents.
17.502 Applicability of other statutes.
17.503 Improper disclosure.
17.504 Disclosure methods.
17.505 Disclosure authorities.
17.506 Appeal of decision by Veterans Health Administration to deny 
          disclosure.
17.507 Employee responsibilities.
17.508 Access to quality assurance records and documents within the 
          agency.
17.509 Authorized disclosure: Non-Department of Veterans Affairs 
          requests.
17.510 Redisclosure.
17.511 Penalties for violations.

               VA Health Professional Scholarship Program

17.600 Purpose.
17.601 Definitions.
17.602 Eligibility.
17.603 Availability of scholarships.
17.604 Application for the scholarship program.
17.605 Selection of participants.
17.606 Award procedures.
17.607 Obligated service.
17.608 Deferment of obligated service.
17.609 Pay during period of obligated service.
17.610 Failure to comply with terms and conditions of participation.
17.611 Bankruptcy.
17.612 Cancellation, waiver, or suspension of obligation.

                    Transitional Housing Loan Program

17.800 Purpose.
17.801 Definitions.
17.802 Application provisions.
17.803 Order of consideration.
17.804 Loan approval criteria.
17.805 Additional terms of loans.

[[Page 599]]

  Health Care Benefits for Certain Children of Vietnam Veterans--Spina 
                    Bifida and Covered Birth Defects

17.900 Definitions.
17.901 Provision of health care.
17.902 Preauthorization.
17.903 Payment.
17.904 Review and appeal process.
17.905 Medical records.

Payment or Reimbursement for Emergency Services for Nonservice-Connected 
                     Conditions in Non-VA Facilities

17.1000 Payment or reimbursement for emergency services for nonservice-
          connected conditions in non-VA facilities.
17.1001 Definitions.
17.1002 Substantive conditions for payment or reimbursement.
17.1003 Emergency transportation.
17.1004 Filing claims.
17.1005 Payment limitations.
17.1006 Decisionmakers.
17.1007 Independent right of recovery.
17.1008 Balance billing prohibited.

    Authority: 38 U.S.C. 501, 1721, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 17 appear at 61 FR 
7216, Feb. 27, 1996.

                       Definitions and Active Duty



Sec. 17.30  Definitions.

    When used in Department of Veterans Affairs medical regulations, 
each of the following terms shall have the meaning ascribed to it in 
this section:
    (a) Medical services. The term medical services includes, in 
addition to medical examination, treatment, and rehabilitative services:
    (1) Surgical services, dental services and appliances as authorized 
in Sec. Sec. 17.160 through 17.166, optometric and podiatric services, 
(in the case of a person otherwise receiving care or services under this 
chapter) the preventive health care services set forth in 38 U.S.C. 
1762, wheelchairs, artificial limbs, trusses and similar appliances, 
special clothing made necessary by the wearing of prosthetic appliances, 
and such other supplies or services as are medically determined to be 
reasonable and necessary.


(Authority: 38 U.S.C. 1701(6)(A)(i))

    (2) Such consultation, professional counseling, training and mental 
health services as are necessary in connection with the treatment--
    (i) Of the service-connected disability of a veteran pursuant to 
Sec. 17.93(a);
    (ii) Of the nonservice-connected disability of a veteran where such 
services were initiated during the veteran's hospitalization and the 
provision of such services is essential to permit the release of the 
veteran from inpatient care;

for the members of the immediate family or legal guardian of the 
veteran, or the individual in whose household such veteran certifies an 
intention to live, as may be essential to the effective treatment and 
rehabilitation of the veteran or dependent or survivor of a veteran 
receiving care under Sec. 17.84(c). For the purposes of this paragraph, 
a dependent or survivor of a veteran receiving care under Sec. 17.84(c) 
shall be eligible for the same medical services as a veteran; and
    (3) Transportation and incidental expenses for any person entitled 
to such benefits under the provisions of Sec. 17.143.


(Authority: 38 U.S.C. 1701(6))

    (b) Domiciliary care. The term domiciliary care means the furnishing 
of a home to a veteran, embracing the furnishing of shelter, food, 
clothing and other comforts of home, including necessary medical 
services. The term further includes travel and incidental expenses 
pursuant to Sec. 17.143.

(Authority: 38 U.S.C. 1701(4))

[23 FR 6498, Aug. 22, 1958, as amended at 24 FR 8326, Oct. 14, 1959; 30 
FR 1787, Feb. 9, 1965; 32 FR 6841, Mar. 4, 1967; 32 FR 13813, Oct. 4, 
1967; 33 FR 5298, Apr. 3, 1968; 33 FR 19009, Dec. 20, 1968; 34 FR 9339, 
June 13, 1969; 36 FR 4782, Mar. 12, 1971; 45 FR 6934, Jan. 31, 1980; 47 
FR 58246, Dec. 30, 1982; 49 FR 50029, Dec. 26, 1984; 51 FR 25264, July 
10, 1986; 54 FR 14648, Apr. 12, 1989; 61 FR 21965, 21966, May 13, 1996; 
62 FR 17072, Apr. 9, 1997]



Sec. 17.31  Duty periods defined.

    Definitions of duty periods applicable to eligibility for medical 
benefits are as follows:
    (a)-(c) [Reserved]
    (d) Inactive duty training. The term inactive duty training means: 
(1) Duty (other than full-time duty) prescribed for Reserves (including 
commissioned officers of the Reserve Corps of the Public Health Service) 
by the Secretary concerned under section 206,

[[Page 600]]

title 37 U.S.C., or any other provision of law;
    (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.
    (3) Duty (other than full-time duty) for members of the National 
Guard or Air National Guard of any State under the provisions of law 
stated in paragraph (c)(3) of this section.
    (4) Inactive duty for training does not include work or study 
performed in connection with correspondence courses, or attendance at an 
educational institution in an inactive status, or duty performed as a 
temporary member of the Coast Guard Reserve.

[34 FR 9339, June 13, 1969, as amended at 45 FR 6934, Jan. 31, 1980; 45 
FR 43169, June 26, 1980; 48 FR 56580, Dec. 22, 1983; 61 FR 21965, May 
13, 1996]

    Editorial Note: At 61 FR 21965, May 13, 1996, Sec. 17.31 was 
amended by removing (a), (b) introductory text, (b)(1) through (b)(4), 
(b)(6), (b)(7) and (c). Text remaining in effect is set forth above.



Sec. 17.31  Duty periods defined.

    Full-time duty as a member of the Women's Army Auxiliary Corps, 
Women's Reserve of the Navy and Marine Corps and Women's Reserve of the 
Coast Guard.

[34 FR 9339, June 13, 1969, as amended at 61 FR 21965, May 13, 1996]

    Editorial Note: At 61 FR 21965, May 13, 1996, Sec. 17.31(b)(5) was 
redesignated as Sec. 17.31.

                      Protection of Patient Rights



Sec. 17.32  Informed consent.

    (a) Definitions:
    Close friend. Any person eighteen years or older who has shown care 
and concern for the patient's welfare, who is familiar with the 
patient's activities, health, religious beliefs and values, and who has 
presented a signed written statement for the record that describes that 
person's relationship to and familiarity with the patient.
    Decision-making capacity. The ability to understand and appreciate 
the nature and consequences of health-care treatment decisions.
    Health-care agent. An individual named by the patient in a Durable 
Power of Attorney for Health Care.
    Legal guardian. A person appointed by a court of appropriate 
jurisdiction to make decisions for an individual who has been judicially 
determined to be incompetent.
    Practitioner. Any physician, dentist, or health-care professional 
who has been granted specific clinical privileges to perform the 
treatment or procedure involved. For the purpose of obtaining informed 
consent for medical treatment, the term practitioner includes medical 
and dental residents regardless of whether they have been granted 
clinical privileges.
    Signature consent. The patient's or surrogate's signature on a VA-
authorized consent form, e.g., a published numbered VA form (OF 522) or 
comparable form approved by the local VA facility.
    Special guardian. A person appointed by a court of appropriate 
jurisdiction for the specific purpose of making health-care decisions.
    Surrogate. An individual, organization or other body authorized 
under this section to give informed consent on behalf of a patient who 
lacks decision-making capacity.
    (b) Policy. Except as otherwise provided in this section, all 
patient care furnished under title 38 U.S.C. shall be carried out only 
with the full and informed consent of the patient or, in appropriate 
cases, a representative thereof. In order to give informed consent, the 
patient must have decision-making capacity and be able to communicate 
decisions concerning health care. If the patient lacks decision-making 
capacity or has been declared incompetent, consent must be obtained from 
the patient's surrogate. Practitioners may provide necessary medical 
care in emergency situations without the patient's or surrogate's 
express consent

[[Page 601]]

when immediate medical care is necessary to preserve life or prevent 
serious impairment of the health of the patient or others and the 
patient is unable to consent and the practitioner determines that the 
patient has no surrogate or that waiting to obtain consent from the 
patient's surrogate would increase the hazard to the life or health of 
the patient or others. In such circumstances consent is implied.
    (c) General requirements for informed consent. Informed consent is 
the freely given consent that follows a careful explanation by the 
practitioner to the patient or the patient's surrogate of the proposed 
diagnostic or therapeutic procedure or course of treatment. The 
practitioner, who has primary responsibility for the patient or who will 
perform the particular procedure or provide the treatment, must explain 
in language understandable to the patient or surrogate the nature of a 
proposed procedure or treatment; the expected benefits; reasonably 
foreseeable associated risks, complications or side effects; reasonable 
and available alternatives; and anticipated results if nothing is done. 
The patient or surrogate must be given the opportunity to ask questions, 
to indicate comprehension of the information provided, and to grant 
permission freely without coercion. The practitioner must advise the 
patient or surrogate if the proposed treatment is novel or unorthodox. 
The patient or surrogate may withhold or revoke his or her consent at 
any time.
    (d) Documentation of informed consent. (1) The informed consent 
process must be appropriately documented in the medical record. In 
addition, signature consent is required for all diagnostic and 
therapeutic treatments or procedures that:
    (i) Require the use of sedation;
    (ii) Require anesthesia or narcotic analgesia;
    (iii) Are considered to produce significant discomfort to the 
patient;
    (iv) Have a significant risk of complication or morbidity;
    (v) Require injections of any substance into a joint space or body 
cavity; or
    (vi) Involve testing for Human Immunodeficiency Virus (HIV).
    (2) The patient's or surrogate's signature on a VA-authorized 
consent form must be witnessed. The witness' signature only attests to 
the fact that he or she saw the patient or surrogate and the 
practitioner sign the form. When the patient's or surrogate's signature 
is indicated by an ``X'', two adults must witness the act of signing. 
The signed form must be filed in the patient's medical record. A 
properly executed OF 522 or other VA-authorized consent form is valid 
for a period of 30 calendar days. If, however, the treatment plan 
involves multiple treatments or procedures, it will not be necessary to 
repeat the informed consent discussion and documentation so long as the 
course of treatment proceeds as planned, even if treatment extends 
beyond the 30-day period. If there is a change in the patient's 
condition that might alter the diagnostic or therapeutic decision, the 
consent is automatically rescinded.
    (3) If it is impractical to consult with the surrogate in person, 
informed consent may be obtained by mail, facsimile, or telephone. A 
facsimile copy of a signed consent form is adequate to proceed with 
treatment. However, the surrogate must agree to submit a signed consent 
form to the practitioner. If consent is obtained by telephone, the 
conversation must be audiotaped or witnessed by a second VA employee. 
The name of the person giving consent and his or her authority to act as 
surrogate must be adequately identified for the record.
    (e) Surrogate consent. If the practitioner who has primary 
responsibility for the patient determines that the patient lacks 
decision-making capacity and is unlikely to regain it within a 
reasonable period of time, informed consent must be obtained from the 
patient's surrogate. Patients who are incapable of giving consent as a 
matter of law, i.e., persons judicially determined to be incompetent and 
minors not otherwise able to provide informed consent, will be deemed to 
lack decision-making capacity for the purposes of this section. If the 
patient is considered a minor in the state where the VA facility is 
located and cannot consent to medical treatment, consent must be 
obtained from the patient's parent or

[[Page 602]]

legal guardian. The surrogate generally assumes the same rights and 
responsibilities as the patient in the informed consent process. The 
surrogate's decision must be based on his or her knowledge of what the 
patient would have wanted, i.e., substituted judgment. If the patient's 
wishes are unknown, the decision must be based on the patient's best 
interest. The following persons are authorized to consent on behalf of 
patients who lack decision-making capacity in the following order of 
priority:
    (1) Health-care agent;
    (2) Legal guardian or special guardian;
    (3) Next-of-kin: a close relative of the patient eighteen years of 
age or older, in the following priority: spouse, child, parent, sibling, 
grandparent, or grandchild; or
    (4) Close friend.
    (f) Consent for patients without surrogates. (1) If none of the 
surrogates listed in paragraph (e) of this section are available, the 
practitioner may request Regional Counsel assistance to obtain a special 
guardian for health care or follow the procedures outlined in this 
paragraph (f).
    (2) Facilities may use the following process to make treatment 
decisions for patients who lack decision-making capacity and have no 
surrogate. For treatments or procedures that involve minimal risk, the 
practitioner must verify that no authorized surrogate can be located. 
The practitioner must attempt to explain the nature and purpose of the 
proposed treatment to the patient and enter this information in the 
medical record. For procedures that require signature consent, the 
practitioner must certify that the patient has no surrogate. The 
attending physician and the Chief of Service (or his or her designee) 
must indicate their approval of the treatment decision in writing. Any 
decision to withhold or withdraw life-sustaining treatment for such 
patients must be reviewed by a multi-disciplinary committee appointed by 
the facility Director. The committee functions as the patient's advocate 
and may not include members of the treatment team. The committee must 
submit its findings and recommendations in a written report to the Chief 
of Staff who must note his or her approval of the report in writing. 
After reviewing the record, the facility Director may concur with the 
decision to withhold or withdraw life support or request further review 
by Regional Counsel.
    (g) Special consent situations. In addition to the other 
requirements of this section, additional protections are required in the 
following situations.
    (1) No patient will undergo any unusual or extremely hazardous 
treatment or procedure, e.g., that which might result in irreversible 
brain damage or sterilization, except as provided in this paragraph (g). 
Before treatment is initiated, the patient or surrogate must be given 
adequate opportunity to consult with independent specialists, legal 
counsel or other interested parties of his or her choosing. The 
patient's or surrogate's signature on a VA authorized consent form must 
be witnessed by someone who is not affiliated with the VA health-care 
facility, e.g., spouse, legal guardian, or patient advocate. If a 
surrogate makes the treatment decision, a multi-disciplinary committee, 
appointed by the facility Director, must review that decision to ensure 
it is consistent with the patient's wishes or in his or her best 
interest. The committee functions as the patient's advocate and may not 
include members of the treatment team. The committee must submit its 
findings and recommendations in a written report to the facility 
Director. The Director may authorize treatment consistent with the 
surrogate's decision or request that a special guardian for health care 
be appointed to make the treatment decision.
    (2) Administration of psychotropic medication to an involuntarily 
committed patient against his or her will must meet the following 
requirements. The patient or surrogate must be allowed to consult with 
independent specialists, legal counsel or other interested parties 
concerning the treatment with psychotropic medication. Any 
recommendation to administer or continue medication against the 
patient's or surrogate's will must be reviewed by a multi-disciplinary 
committee appointed by the facility Director for this purpose. This 
committee must include a psychiatrist or a physician who has

[[Page 603]]

psychopharmacology privileges. The facility Director must concur with 
the committee's recommendation to administer psychotropic medications 
contrary to the patient's or surrogate's wishes. Continued therapy with 
psychotropic medication must be reviewed every 30 days. The patient (or 
a representative on the patient's behalf) may appeal the treatment 
decision to a court of appropriate jurisdiction.
    (3) If a proposed course of treatment or procedure involves approved 
medical research in whole or in part, the patient or representative 
shall be advised of this. Informed consent shall be obtained 
specifically for the administration or performance of that aspect of the 
treatment or procedure that involves research. Such consent shall be in 
addition to that obtained for the administration or performance of the 
nonresearch aspect of the treatment or procedure and must meet the 
requirements for informed consent set forth in 38 CFR Part 16, 
Protection of Human Subjects.
    (4) Testing for Human Immunodeficiency Virus (HIV) must be voluntary 
and must be conducted only with the prior informed and (written) 
signature consent of the patient or surrogate. Patients who consent to 
testing for HIV must sign VA form 10-012, ``Consent for HIV Antibody 
Testing.'' This form must be filed in the patient's medical record. 
Testing must be accompanied by pre-test and post-test counseling.

(The information collection requirements in this section have been 
approved by the Office of Management and Budget under control number 
2900-0583)

(Authority: 38 U.S.C. 7331, 7332, 7333)

[62 FR 53961, Oct. 17, 1997]



Sec. 17.33  Patients' rights.

    (a) General. (1) Patients have a right to be treated with dignity in 
a humane environment that affords them both reasonable protection from 
harm and appropriate privacy with regard to their personal needs.
    (2) Patients have a right to receive, to the extent of eligibility 
therefor under the law, prompt and appropriate treatment for any 
physical or emotional disability.
    (3) Patients have the right to the least restrictive conditions 
necessary to achieve treatment purposes.
    (4) No patient in the Department of Veterans Affairs medical care 
system, except as otherwise provided by the applicable State law, shall 
be denied legal rights solely by virtue of being voluntarily admitted or 
involuntarily committed. Such legal rights include, but are not limited 
to, the following:
    (i) The right to hold and to dispose of property except as may be 
limited in accordance with paragraph (c)(2) of this section;
    (ii) The right to execute legal instruments (e.g., will);
    (iii) The right to enter into contractual relationships;
    (iv) The right to register and vote;
    (v) The right to marry and to obtain a separation, divorce, or 
annulment;
    (vi) The right to hold a professional, occupational, or vehicle 
operator's license.
    (b) Residents and inpatients. Subject to paragraph (c) of this 
section, patients admitted on a residential or inpatient care basis to 
the Department of Veterans Affairs medical care system have the 
following rights:
    (1) Visitations and communications. Each patient has the right to 
communicate freely and privately with persons outside the facility, 
including government officials, attorneys, and clergymen. To facilitate 
these communications each patient shall be provided the opportunity to 
meet with visitors during regularly scheduled visiting hours, convenient 
and reasonable access to public telephones for making and receiving 
phone calls, and the opportunity to send and receive unopened mail.
    (i) Communications with attorneys, law enforcement agencies, or 
government officials and representatives of recognized service 
organizations when the latter are acting as agents for the patient in a 
matter concerning Department of Veterans Affairs benfits, shall not be 
reviewed.
    (ii) A patient may refuse visitors.
    (iii) If a patient's right to receive unopened mail is restricted 
pursuant to paragraph (c) of this section, the patient shall be required 
to open the sealed mail while in the presence of an

[[Page 604]]

appropriate person for the sole purpose of ascertaining whether the mail 
contains contraband material, i.e., implements which pose significant 
risk of bodily harm to the patient or others or any drugs or medication. 
Any such material will be held for the patient or disposed of in 
accordance with instructions concerning patients' mail published by the 
Veterans Health Administration, Department of Veterans Affairs, and/or 
the local health care facility.
    (iv) Each patient shall be afforded the opportunity to purchase, at 
the patient's expense, letter writing material including stamps. In the 
event a patient needs assistance in purchasing writing material, or in 
writing, reading or sending mail, the medical facility will attempt, at 
the patient's request, to provide such assistance by means of 
volunteers, sufficient to mail at least one (1) letter each week.
    (v) All information gained by staff personnel of a medical facility 
during the course of assisting a patient in writing, reading, or sending 
mail is to be kept strictly confidential except for any disclosure 
required by law.
    (2) Clothing. Each patient has the right to wear his or her own 
clothing.
    (3) Personal Possessions. Each patient has the right to keep and use 
his or her own personal possessions consistent with available space, 
governing fire safety regulations, restrictions on noise, and 
restrictions on possession of contraband material, drugs and 
medications.
    (4) Money. Each patient has the right to keep and spend his or her 
own money and to have access to funds in his or her account in 
accordance with instructions concerning personal funds of patients 
published by the Veterans Health Administration.
    (5) Social Interaction. Each patient has the right to social 
interaction with others.
    (6) Exercise. Each patient has the right to regular physical 
exercise and to be outdoors at regular and frequent intervals. 
Facilities and equipment for such exercise shall be provided.
    (7) Worship. The opportunity for religious worship shall be made 
available to each patient who desires such opportunity. No patient will 
be coerced into engaging in any religious activities against his or her 
desires.
    (c) Restrictions. (1) A right set forth in paragraph (b) of this 
section may be restricted within the patient's treatment plan by written 
order signed by the appropriate health or mental health professional 
if--
    (i) It is determined pursuant to paragraph (c)(2) of this section 
that a valid and sufficient reason exists for a restriction, and
    (ii) The order imposing the restriction and a progress note 
detaining the indications therefor are both entered into the patient's 
permanent medical record.
    (2) For the purpose of this paragraph, a valid and sufficient reason 
exists when, after consideration of pertinent facts, including the 
patient's history, current condition and prognosis, a health or mental 
health professional reasonably believes that the full exercise of the 
specific right would--
    (i) Adversely affect the patient's physical or mental health,
    (ii) Under prevailing community standards, likely stigmatize the 
patient's reputation to a degree that would adversely affect the 
patient's return to independent living,
    (iii) Significantly infringe upon the rights of or jeopardize the 
health or safety of others, or
    (iv) Have a significant adverse impact on the operation of the 
medical facility, to such an extent that the patient's exercise of the 
specific right should be restricted. In determining whether a patient's 
specific right should be restricted, the health or mental health 
professional concerned must determine that the likelihood and 
seriousness of the consequences that are expected to result from the 
full exercise of the right are so compelling as to warrant the 
restriction. The Chief of Service or Chief of Staff, as designated by 
local policy, should concur with the decision to impose such 
restriction. In this connection, it should be noted that there is no 
intention to imply that each of the reasons specified in paragraphs 
(c)(2)(i) through (iv) of this section are logically relevant to each of 
the rights set forth in paragraph (b)(1) of this section.

[[Page 605]]

    (3) If it has been determined under paragraph (c)(2) of this section 
that a valid and sufficient reason exists for restricting any of the 
patient's rights set forth in paragraph (c)(1) of this section, the 
least restrictive method for protecting the interest or interests 
specified in paragraphs (c)(2)(i) through (iv) of this section that are 
involved shall be employed.
    (4) The patient must be promptly notified of any restriction imposed 
pursuant to this paragraph and the reasons therefor.
    (5) All restricting orders must be reviewed at least once every 30 
days by the practitioner and must be concurred in by the Chief of 
Service or Chief of Staff.
    (d) Restraint and seclusion of patients. (1) Each patient has the 
right to be free from physical restraint or seclusion except in 
situations in which there is a substantial risk of imminent harm by the 
patient to himself, herself, or others and less restrictive means of 
preventing such harm have been determined to be inappropriate or 
insufficient. Patients will be physically restrained or placed in 
seclusion only on the written order of a physician. The reason for any 
restraint order will be clearly documented in the progress notes of the 
patient's medical record. The written order may be entered on the basis 
of telephonic authority received from a physician, but in such an event 
the ordering physician must examine the patient and sign the written 
order within twelve (12) hours of giving the order for restraint or 
seclusion. In emergency situations, where inability to contact a 
physician prior to restraint is likely to result in immediate harm to 
the patient or others, the patient may be temporarily restrained by a 
member of the staff until appropriate authorization can be received from 
a physician. Use of restraints or seclusion shall be for no more than 
twenty-four (24) hours, at which time the physician shall again be 
consulted to determine if continuance of such restraint or seclusion is 
required. Restraint or seclusion may not be used as a punishment, for 
the convenience of staff, or as a substitute for treatment programs.
    (2) While in restraint or seclusion, the patient must be seen at 
least once every twelve (12) hours by an appropriate health professional 
who will monitor and chart the patient's physical and mental condition 
and by other ward personnel as frequently as is reasonable under 
existing circumstances, but no less than once each hour.
    (3) Each patient in restraint or seclusion shall have bathroom 
privileges according to his or her needs.
    (4) Each patient in restraint or seclusion shall have the 
opportunity to bathe at least every twenty-four (24) hours.
    (5) Each patient in restraint or seclusion shall be provided 
nutrition and fluid appropriately.
    (e) Medication. Patients have a right to be free from unnecessary or 
excessive medication. Except in an emergency, medication will be 
administered only on the written order of a physician in that patient's 
medical record. The written order may be entered on the basis of 
telephonic authority received from a physician, but in such event a 
physician must countersign the written order within 24 hours of the 
ordering of the medication. The attending physician shall be responsible 
for all medication given or administered to a patient. The attending 
physician shall review the drug regimen of each patient under his or her 
care at least every thirty (30) days. It is recognized that 
administration of certain medications will be reviewed more frequently. 
Medication shall not be used as punishment, for the convenience of the 
staff, or in quantities which interfere with the patient's treatment 
program.
    (f) Confidentiality. Information gained by staff from the patient or 
the patient's medical record will be kept confidential and will not be 
disclosed except in accordance with applicable law.
    (g) Patient grievances. Each patient has the right to present 
grievances with respect to perceived infringement of the rights 
described in this section or concerning any other matter on behalf of 
himself, herself or others, to staff members at the facility in which 
the patient is receiving care, other Department of Veterans Affairs 
officials,

[[Page 606]]

government officials, members of Congress or any other person without 
fear or reprisal.
    (h) Notice of patient's rights. Upon the admission of any patient, 
the patient or his/her representative shall be informed of the rights 
described in this section, shall be given a copy of a statement of those 
rights and shall be informed of the fact that the statement of rights is 
posted at each nursing station. All staff members assigned to work with 
patients will be given a copy of the statement of rights and these 
rights will be discussed with them by their immediate supervisor.
    (i) Other rights. The rights described in this section are in 
addition to and not in derogation of any statutory, constitutional or 
other legal rights.

(Authority: 38 U.S.C. 501, 1721)

[47 FR 55486, Dec. 10, 1982. Redesignated at 61 FR 21965, May 13, 1996]

                  Tentative Eligibility Determinations



Sec. 17.34  Tentative eligibility determinations.

    Subject to the provisions of Sec. Sec. 17.36 through 17.38, when an 
application for hospital care or other medical services, except 
outpatient dental care, has been filed which requires an adjudication as 
to service connection or a determination as to any other eligibility 
prerequisite which cannot immediately be established, the service 
(including transportation) may be authorized without further delay if it 
is determined that eligibility for care probably will be established. 
Tentative eligibility determinations under this section, however, will 
only be made if:
    (a) In emergencies. The applicant needs hospital care or other 
medical services in emergency circumstances, or
    (b) For persons recently discharged from service. The application 
was filed within 6 months after date of honorable discharge from a 
period of not less than 6 months of active duty.

[35 FR 6586, Apr. 24, 1970. Redesignated at 61 FR 21965, May 13, 1996, 
as amended at 64 FR 54212, Oct. 6, 1999]

 Hospital or Nursing Home Care and Medical Services in Foreign Countries



Sec. 17.35  Hospital care and medical services in foreign countries.

    The Secretary may furnish hospital care and medical services to any 
veteran sojourning or residing outside the United States, without regard 
to the veteran's citizenship:
    (a) If necessary for treatment of a service-connected disability, or 
any disability associated with and held to be aggravating a service-
connected disability;
    (b) If the care is furnished to a veteran participating in a 
rehabilitation program under 38 U.S.C. chapter 31 who requires care for 
the reasons enumerated in 38 CFR 17.48(j)(2).

(Authority: 38 U.S.C. 1724)

[55 FR 11370, Mar. 28, 1990. Redesignated at 61 FR 21965, May 13, 1996]

           Enrollment Provisions and Medical Benefits Package



Sec. 17.36  Enrollment--provision of hospital and outpatient care to 
veterans.

    (a) Enrollment requirement for veterans. (1) Except as otherwise 
provided in Sec. 17.37, a veteran must be enrolled in the VA healthcare 
system as a condition for receiving the 'medical benefits package' set 
forth in Sec. 17.38.

    Note to paragraph (a)(1): A veteran may apply to be enrolled at any 
time. (See Sec. 17.36(d)(1).)

    (2) Except as provided in paragraph (a)(3) of this section, a 
veteran enrolled under this section and who, if required by law to do 
so, has agreed to make any applicable copayment is eligible for VA 
hospital and outpatient care as provided in the ``medical benefits 
package'' set forth in Sec. 17.38.

    Note to paragraph (a)(2): A veteran's enrollment status will be 
recognized throughout the United States.

    (3) A veteran enrolled based on having a disorder associated with 
exposure to a toxic substance or radiation, for a disorder associated 
with service in the Southwest Asia theater of operations during the Gulf 
War, or any illness associated with service in combat in a

[[Page 607]]

war after the Gulf War or during a period of hostility after November 
11, 1998, as provided in 38 U.S.C. 1710(e), is eligible for VA care 
provided in the ``medical benefits package'' set forth in Sec. 17.38 
for the disorder.
    (b) Categories of veterans eligible to be enrolled. The Secretary 
will determine which categories of veterans are eligible to be enrolled 
based on the following order of priority:
    (1) Veterans with a singular or combined rating of 50 percent or 
greater based on one or more service-connected disabilities or 
unemployability.
    (2) Veterans with a singular or combined rating of 30 percent or 40 
percent based on one or more service-connected disabilities.
    (3) Veterans who are former prisoners of war; veterans awarded the 
Purple Heart; veterans with a singular or combined rating of 10 percent 
or 20 percent based on one or more service-connected disabilities; 
veterans who were discharged or released from active military service 
for a disability incurred or aggravated in the line of duty; veterans 
who receive disability compensation under 38 U.S.C. 1151; veterans whose 
entitlement to disability compensation is suspended pursuant to 38 
U.S.C. 1151, but only to the extent that such veterans' continuing 
eligibility for that care is provided for in the judgment or settlement 
described in 38 U.S.C. 1151; veterans whose entitlement to disability 
compensation is suspended because of the receipt of military retired 
pay; and veterans receiving compensation at the 10 percent rating level 
based on multiple noncompensable service-connected disabilities that 
clearly interfere with normal employability.
    (4) Veterans who receive increased pension based on their need for 
regular aid and attendance or by reason of being permanently housebound 
and other veterans who are determined to be catastrophically disabled by 
the Chief of Staff (or equivalent clinical official) at the VA facility 
where they were examined.
    (5) Veterans not covered by paragraphs (b)(1) through (b)(4) of this 
section who are determined to be unable to defray the expenses of 
necessary care under 38 U.S.C. 1722(a).
    (6) Veterans of the Mexican border period or of World War I; 
veterans solely seeking care for a disorder associated with exposure to 
a toxic substance or radiation, for a disorder associated with service 
in the Southwest Asia theater of operations during the Gulf War, or for 
any illness associated with service in combat in a war after the Gulf 
War or during a period of hostility after November 11, 1998, as provided 
and limited in 38 U.S.C. 1710(e); and veterans with 0 percent service-
connected disabilities who are nevertheless compensated, including 
veterans receiving compensation for inactive tuberculosis.
    (7) Veterans who agree to pay to the United States the applicable 
copayment determined under 38 U.S.C. 1710(f) and 1710(g) if their income 
for the previous year constitutes ``low income'' under the geographical 
income limits established by the U.S. Department of Housing and Urban 
Development for the fiscal year that ended on September 30 of the 
previous calendar year. For purposes of this paragraph, VA will 
determine the income of veterans (to include the income of their spouses 
and dependents) using the rules in Sec. Sec. 3.271, 3.272, 3.273, and 
3.276. After determining the veterans' income and the number of persons 
in the veterans' family (including only the spouse and dependent 
children), VA will compare their income with the current applicable 
``low-income'' income limit for the public housing and section 8 
programs in their area that the U.S. Department of Housing and Urban 
Development publishes pursuant to 42 U.S.C. 1437a(b)(2). If the 
veteran's income is below the applicable ``low-income'' income limits 
for the area in which the veteran resides, the veteran will be 
considered to have ``low income'' for purposes of this paragraph. To 
avoid a hardship to a veteran, VA may use the projected income for the 
current year of the veteran, spouse, and dependent children if the 
projected income is below the ``low income'' income limit referenced 
above. This category is further prioritized into the following 
subcategories:
    (i) Noncompensable zero percent service-connected veterans who are 
in an enrolled status on a specified date

[[Page 608]]

announced in a Federal Register document promulgated under paragraph (c) 
of this section and who subsequently do not request disenrollment;
    (ii) Nonservice-connected veterans who are in an enrolled status on 
a specified date announced in a Federal Register document promulgated 
under paragraph (c) of this section and who subsequently do not request 
disenrollment;
    (iii) Noncompensable zero percent service-connected veterans not 
included in paragraph (b)(7)(i) of this section; and
    (iv) Nonservice-connected veterans not included in paragraph 
(b)(7)(ii) of this section.
    (8) Veterans not included in priority category 4 or 7, who are 
eligible for care only if they agree to pay to the United States the 
applicable copayment determined under 38 U.S.C. 1710(f) and 1710(g). 
This category is further prioritized into the following subcategories:
    (i) Noncompensable zero percent service-connected veterans who are 
in an enrolled status on a specified date announced in a Federal 
Register document promulgated under paragraph (c) of this section and 
who subsequently do not request disenrollment;
    (ii) Nonservice-connected veterans who are in an enrolled status on 
a specified date announced in a Federal Register document promulgated 
under paragraph (c) of this section and who subsequently do not request 
disenrollment;
    (iii) Noncompensable zero percent service-connected veterans not 
included in paragraph (b)(8)(i) of this section; and
    (iv) Nonservice-connected veterans not included in paragraph 
(b)(8)(ii) of this section.
    (c) Federal Register notification of eligible enrollees. (1) It is 
anticipated that on or before August 1 of each year the Secretary will 
announce in paragraph (c)(2) of this section which categories of 
veterans are eligible to be enrolled. As necessary, the Secretary at any 
time may revise this determination by further amending paragraph (c)(2) 
of this section. The preamble to a Federal Register document announcing 
which priority categories are eligible to be enrolled must specify the 
projected number of fiscal year applicants for enrollment in each 
priority category, projected healthcare utilization and expenditures for 
veterans in each priority category, appropriated funds and other revenue 
projected to be available for fiscal year enrollees, and results--
projected total expenditures for enrollees by priority category. The 
determination should include consideration of relevant internal and 
external factors, e.g., economic changes, changes in medical practices, 
and waiting times to obtain an appointment for care. Consistent with 
these criteria, the Secretary will determine which categories of 
veterans are eligible to be enrolled based on the order of priority 
specified in paragraph (b) of this section.
    (2) Unless changed by a rulemaking document in accordance with 
paragraph (c)(1) of this section, VA will enroll all priority categories 
of veterans set forth in Sec. 17.36(b) beginning January 17, 2003 
except that those veterans in priority category 8 who were not in an 
enrolled status on January 17, 2003 or who requested disenrollment after 
that date, are not eligible to be enrolled.
    (d) Enrollment and disenrollment process--(1) Application for 
enrollment. A veteran may apply to be enrolled in the VA healthcare 
system at any time. A veteran who wishes to be enrolled must apply by 
submitting a VA Form 10-10EZ to a VA medical facility. Veterans applying 
based on inclusion in priority categories 1, 2, 3, 6, and 8 do not need 
to complete section II, but must complete the rest of the form. Veterans 
applying based on inclusion in priority category 4 because of their need 
for regular aid and attendance or by being permanently housebound need 
not complete section II, but must complete the rest of the form. 
Veterans applying based on inclusion in priority category 4 because they 
are catastrophically disabled need not complete section II, but must 
complete the rest of the form, if: they agree to pay to the United 
States the applicable copayment determined under 38 U.S.C. 1710(f) and 
1710(g); they are a veteran of the Mexican border period or of World War 
I or a veteran with a 0 percent service-connected disability who is

[[Page 609]]

nevertheless compensated; their catastrophic disability is a disorder 
associated with exposure to a toxic substance or radiation, or with 
service in the Southwest Asia theater of operations during the Gulf War 
as provided in 38 U.S.C. 1710(e); or their catastrophic disability is an 
illness associated with service in combat in a war after the Gulf War or 
during a period of hostility after November 11, 1998, as provided in 38 
U.S.C. 1710(e). All other veterans applying based on inclusion in 
priority category 4 because they are catastrophically disabled must 
complete the entire form. Veterans applying based on inclusion in 
priority category 5 must complete the entire form. Veterans applying 
based on inclusion in priority category 7 must complete the entire form 
except for section IIE. VA form 10-10EZ is set forth in paragraph (f) of 
this section and is available from VA medical facilities.
    (2) Action on application. Upon receipt of a completed VA Form 10-
10EZ, a VA network or facility director, or the Deputy Under Secretary 
for Health for Operations and Management or Chief, Health Administration 
Service or equivalent official at a VA medical facility, or Director, 
Health Eligibility Center, will accept a veteran as an enrollee upon 
determining that the veteran is in a priority category eligible to be 
enrolled as set forth in Sec. 17.36(c)(2). Upon determining that a 
veteran is not in a priority category eligible to be enrolled, the VA 
network or facility director, or the Deputy Under Secretary for Health 
for Operations and Management or Chief, Health Administration Service or 
equivalent official at a VA medical facility, or Director, Health 
Eligibility Center, will inform the applicant that the applicant is 
ineligible to be enrolled.
    (3) Placement in enrollment categories. (i) Veterans will be placed 
in priority categories whether or not veterans in that category are 
eligible to be enrolled.
    (ii) A veteran will be placed in the highest priority category or 
categories for which the veteran qualifies.
    (iii) A veteran may be placed in only one priority category, except 
that a veteran placed in priority category 6 based on a specified 
disorder or illness will also be placed in priority category 7 or 
priority category 8, as applicable, if the veteran has previously agreed 
to pay the applicable copayment, for all matters not covered by priority 
category 6.
    (iv) A veteran who had been enrolled based on inclusion in priority 
category 5 and became no longer eligible for inclusion in priority 
category 5 due to failure to submit to VA a current VA Form 10-10EZ will 
be changed automatically to enrollment based on inclusion in priority 
category 6 or 8 (or more than one of these categories if the previous 
principle applies), as applicable, and be considered continuously 
enrolled. To meet the criteria for priority category 5, a veteran must 
be eligible for priority category 5 based on the information submitted 
to VA in a current VA Form 10-10EZ. To be current, after VA has sent a 
form 10-10EZ to the veteran at the veteran's last known address, the 
veteran must return the completed form (including signature) to the 
address on the return envelope within 60 days from the date VA sent the 
form to the veteran.
    (v) Veterans will be disenrolled, and reenrolled, in the order of 
the priority categories listed with veterans in priority category 1 
being the last to be disenrolled and the first to be reenrolled. 
Similarly, within priority categories 7 and 8, veterans will be 
disenrolled, and reenrolled, in the order of the priority subcategories 
listed with veterans in subcategory (i) being the last to be disenrolled 
and first to be reenrolled.
    (4) Automatic enrollment. Notwithstanding other provisions of this 
section, veterans who were notified by VA letter that they were enrolled 
in the VA healthcare system under the trial VA enrollment program prior 
to October 1, 1998, automatically will be enrolled in the VA healthcare 
system under this section if determined by a VA network or facility 
director, or the Deputy Under Secretary for Health for Operations and 
Management or Chief, Health Administration Service or equivalent 
official at a VA medical facility, or Director, Health Eligibility 
Center, that the veteran is in a priority category eligible to be 
enrolled as set

[[Page 610]]

forth in Sec. 17.36(c)(2). Upon determining that a veteran is not in a 
priority category eligible to be enrolled, the VA network or facility 
director, or the Deputy Under Secretary for Health for Operations and 
Management or Chief, Health Administration Service or equivalent 
official at a VA medical facility, or Director, Health Eligibility 
Center, will inform the veteran that the veteran is ineligible to be 
enrolled.
    (5) Disenrollment. A veteran enrolled in the VA health care system 
under paragraph (d)(2) or (d)(4) of this section will be disenrolled 
only if:
    (i) The veteran submits to a VA medical center or the VA Health 
Eligibility Center, 1644 Tullie Circle, Atlanta, Georgia 30329, a signed 
document stating that the veteran no longer wishes to be enrolled; or
    (ii) A VA network or facility director, or the Deputy Under 
Secretary for Health for Operations and Management or Chief, Health 
Administration Service or equivalent official at a VA medical facility, 
or Director, Health Eligibility Center, determines that the veteran is 
no longer in a priority category eligible to be enrolled, as set forth 
in Sec. 17.36(c)(2); or
    (iii) A VA network or facility director, or the Deputy Under 
Secretary for Health for Operations and Management or Chief, Health 
Administration Service or equivalent official at a VA medical facility, 
or Director, Health Eligibility Center, determines that the veteran has 
been enrolled based on inclusion in priority category 5 or priority 
category 7; determines that the veteran was sent by mail a VA Form 10-
10EZ; and determines that the veteran failed to return the completed 
form to the address on the return envelope within 60 days from receipt 
of the form. VA Form 10-10EZ is set forth in paragraph (f) of this 
section.
    (6) Notification of enrollment status. Notice of a decision by a VA 
network or facility director, or the Deputy Under Secretary for Health 
for Operations and Management or Chief, Health Administration Service or 
equivalent official at a VA medical facility, or Director, Health 
Eligibility Center, regarding enrollment status will be provided to the 
affected veteran by letter and will contain the reasons for the 
decision. The letter will include an effective date for any changes and 
a statement regarding appeal rights. The decision will be based on all 
information available to the decisionmaker, including the information 
contained in VA Form 10-10EZ.
    (e) Catastrophically disabled. For purposes of this section, 
catastrophically disabled means to have a permanent severely disabling 
injury, disorder, or disease that compromises the ability to carry out 
the activities of daily living to such a degree that the individual 
requires personal or mechanical assistance to leave home or bed or 
requires constant supervision to avoid physical harm to self or others. 
This definition is met if an individual has been found by the Chief of 
Staff (or equivalent clinical official) at the VA facility where the 
individual was examined to have a permanent condition specified in 
paragraph (e)(1) of this section; to meet permanently one of the 
conditions specified in paragraph (e)(2) of this section by a clinical 
evaluation of the patient's medical records that documents that the 
patient previously met the permanent criteria and continues to meet such 
criteria (permanently) or would continue to meet such criteria 
(permanently) without the continuation of on-going treatment; or to meet 
permanently one of the conditions specified in paragraph (e)(2) of this 
section by a current medical examination that documents that the patient 
meets the permanent criteria and will continue to meet such criteria 
(permanently) or would continue to meet such criteria (permanently) 
without the continuation of on-going treatment.
    (1) Quadriplegia and quadriparesis (ICD-9-CM Code 344.0x: 344.00, 
344.01, 344.02, 344.03, 344.04, 3.44.09), paraplegia (ICD-9-CM Code 
344.1), blindness (ICD-9-CM Code 369.4), persistent vegetative state 
(ICD-9-CM Code 780.03), or a condition resulting from two of the 
following procedures (ICD-9-CM Code 84.x or associated V Codes when 
available or Current Procedural Terminology (CPT) Codes) provided the 
two procedures were not on the same limb:
    (i) Amputation through hand (ICD-9-CM Code 84.03 or V Code V49.63 or 
CPT Code 25927);

[[Page 611]]

    (ii) Disarticulation of wrist (ICD-9-CM Code 84.04 or V Code V49.64 
or CPT Code 25920);
    (iii) Amputation through forearm (ICD-9-CM Code 84.05 or V Code 
V49.65 or CPT Codes 25900, 25905);
    (iv) Disarticulation of forearm (ICD-9-CM Code 84.05 or V Code 
V49.66 or CPT Codes 25900, 25905);
    (v) Amputation or disarticulation through elbow. (ICD-9-CM Code 
84.06 or V Code V49.66 or CPT 24999);
    (vi) Amputation through humerus (ICD-9-CM Code 84.07 or V Code 
V49.66 or CPT Codes 24900, 24920);
    (vii) Shoulder disarticulation (ICD-9-CM Code 84.08 or V Code V49.67 
or CPT Code 23920);
    (viii) Forequarter amputation (ICD-9-CM Code 84.09 or CPT Code 
23900);
    (ix) Lower limb amputation not otherwise specified (ICD-9-CM Code 
84.10 or V Code V49.70 or CPT Codes 27880, 27882);
    (x) Amputation of great toe (ICD-9-CM Code 84.11 or V Code V49.71 or 
CPT Codes 28810, 28820);
    (xi) Amputation through foot (ICD-9-CM Code 84.12 or V Code V49.73 
or CPT Codes 28800, 28805);
    (xii) Disarticulation of ankle (ICD-9-CM Code 84.13 or V Code V49.74 
or CPT 27889);
    (xiii) Amputation through malleoli (ICD-9-CM Code 84.14 or V Code 
V49.75 or CPT Code 27888);
    (xiv) Other amputation below knee (ICD-9-CM Code 84.15 or V Code 
V49.75 or CPT Codes 27880, 27882);
    (xv) Disarticulation of knee (ICD-9-CM Code 84.16 or V Code V49.76 
or CPT Code 27598);
    (xvi) Above knee amputation (ICD-9-CM Code 84.17 or V Code V49.76 or 
CPT Code 27598);
    (xvii) Disarticulation of hip (ICD-9-CM Code 84.18 or V Code V49.77 
or CPT Code 27295); and
    (xviii) Hindquarter amputation (ICD-9-CM Code 84.19 or CPT Code 
27290).
    (2)(i) Dependent in 3 or more Activities of Daily Living (eating, 
dressing, bathing, toileting, transferring, incontinence of bowel and/or 
bladder), with at least 3 of the dependencies being permanent with a 
rating of 1, using the Katz scale.
    (ii) A score of 10 or lower using the Folstein Mini-Mental State 
Examination.
    (iii) A score of 2 or lower on at least 4 of the 13 motor items 
using the Functional Independence Measure.
    (iv) A score of 30 or lower using the Global Assessment of 
Functioning.
    (f) VA Form 10-10EZ.

[[Page 612]]

[GRAPHIC] [TIFF OMITTED] TR06OC99.000


[[Page 613]]


[GRAPHIC] [TIFF OMITTED] TR06OC99.001


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0091.)

(Authority: 38 U.S.C 101, 501, 1521, 1701, 1705, 1710, 1721, 1722).

[64 FR 54212, Oct. 6, 1999, as amended at 67 FR 35039, May 17, 2002; 67 
FR 62887, Oct. 9, 2002; 68 FR 2672, Jan. 17, 2003]

[[Page 614]]



Sec. 17.37  Enrollment not required--provision of hospital and outpatient 
care to veterans.

    Even if not enrolled in the VA healthcare system:
    (a) A veteran rated for service-connected disabilities at 50 percent 
or greater will receive VA care provided for in the ``medical benefits 
package'' set forth in Sec. 17.38.
    (b) A veteran who has a service-connected disability will receive VA 
care provided for in the ``medical benefits package'' set forth in Sec. 
17.38 for that service-connected disability.
    (c) A veteran who was discharged or released from active military 
service for a disability incurred or aggravated in the line of duty will 
receive VA care provided for in the ``medical benefits package'' set 
forth in Sec. 17.38 for that disability for the 12-month period 
following discharge or release.
    (d) When there is a compelling medical need to complete a course of 
VA treatment started when the veteran was enrolled in the VA healthcare 
system, a veteran will receive that treatment.
    (e) Subject to the provisions of Sec. 21.240, a veteran 
participating in VA's vocational rehabilitation program described in 
Sec. Sec. 21.1 through 21.430 will receive VA care provided for in the 
``medical benefits package'' set forth in Sec. 17.38.
    (f) A veteran may receive care provided for in the 'medical benefits 
package' based on factors other than veteran status (e.g., a veteran who 
is a private-hospital patient and is referred to VA for a diagnostic 
test by that hospital under a sharing contract; a veteran who is a VA 
employee and is examined to determine physical or mental fitness to 
perform official duties; a Department of Defense retiree under a sharing 
agreement).
    (g) For care not provided within a State, a veteran may receive VA 
care provided for in the ``medical benefits package'' set forth in Sec. 
17.38 if authorized under the provisions of 38 U.S.C. 1724 and 38 CFR 
17.35.
    (h) Commonwealth Army veterans and new Philippine Scouts may receive 
care provided for in the ``medical benefits package'' set forth in Sec. 
17.38 if authorized under the provisions of 38 U.S.C. 1724 and 38 CFR 
17.35.
    (i) A veteran may receive certain types of VA care not included in 
the ``medical benefits package'' set forth in Sec. 17.38 if authorized 
by statute or other sections of 38 CFR (e.g., humanitarian emergency 
care for which the individual will be billed, compensation and pension 
examinations, dental care, domiciliary care, nursing home care, 
readjustment counseling, care as part of a VA-approved research project, 
seeing-eye or guide dogs, sexual trauma counseling and treatment, 
special registry examinations).
    (j) A veteran may receive an examination to determine whether the 
veteran is catastrophically disabled and therefore eligible for 
inclusion in priority category 4.

(Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1721, 1722)

[64 FR 54217, Oct. 6, 1999, as amended at 67 FR 35039, May 17, 2002]



Sec. 17.38  Medical benefits package.

    (a) Subject to paragraphs (b) and (c) of this section, the following 
hospital, outpatient, and extended care services constitute the 
``medical benefits package'' (basic care and preventive care):
    (1) Basic care.
    (i) Outpatient medical, surgical, and mental healthcare, including 
care for substance abuse.
    (ii) Inpatient hospital, medical, surgical, and mental healthcare, 
including care for substance abuse.
    (iii) Prescription drugs, including over-the-counter drugs and 
medical and surgical supplies available under the VA national formulary 
system.
    (iv) Emergency care in VA facilities; and emergency care in non-VA 
facilities in accordance with sharing contracts or if authorized by 
Sec. Sec. 17.52(a)(3), 17.53, 17.54, 17.120-132.
    (v) Bereavement counseling as authorized in Sec. 17.98.
    (vi) Comprehensive rehabilitative services other than vocational 
services provided under 38 U.S.C. chapter 31.
    (vii) Consultation, professional counseling, training, and mental 
health services for the members of the immediate family or legal 
guardian of the veteran or the individual in whose

[[Page 615]]

household the veteran certifies an intention to live, if needed to 
treat:
    (A) The service-connected disability of a veteran; or
    (B) The nonservice-connected disability of a veteran where these 
services were first given during the veteran's hospitalization and 
continuing them is essential to permit the veteran's release from 
inpatient care.
    (viii) Durable medical equipment and prosthetic and orthotic 
devices, including eyeglasses and hearing aids as authorized under Sec. 
17.149.
    (ix) Home health services authorized under 38 U.S.C. 1717 and 1720C.
    (x) Reconstructive (plastic) surgery required as a result of disease 
or trauma, but not including cosmetic surgery that is not medically 
necessary.
    (xi)(A) Hospice care, palliative care, and institutional respite 
care; and
    (B) Noninstitutional geriatric evaluation, noninstitutional adult 
day health care, and noninstitutional respite care.
    (xii) Payment of travel and travel expenses for veterans eligible 
under Sec. 17.143 if authorized by that section.
    (xiii) Pregnancy and delivery services, to the extent authorized by 
law.
    (xiv) Completion of forms (e.g., Family Medical Leave forms, life 
insurance applications, Department of Education forms for loan repayment 
exemptions based on disability, non-VA disability program forms) by 
healthcare professionals based on an examination or knowledge of the 
veteran's condition, but not including the completion of forms for 
examinations if a third party customarily will pay health care 
practitioners for the examination but will not pay VA.
    (2) Preventive care, as defined in 38 U.S.C. 1701(9), which 
includes:
    (i) Periodic medical exams.
    (ii) Health education, including nutrition education.
    (iii) Maintenance of drug-use profiles, drug monitoring, and drug 
use education.
    (iv) Mental health and substance abuse preventive services.
    (v) Immunizations against infectious disease.
    (vi) Prevention of musculoskeletal deformity or other gradually 
developing disabilities of a metabolic or degenerative nature.
    (vii) Genetic counseling concerning inheritance of genetically 
determined diseases.
    (viii) Routine vision testing and eye-care services.
    (ix) Periodic reexamination of members of high-risk groups for 
selected diseases and for functional decline of sensory organs, and the 
services to treat these diseases and functional declines.
    (b) Provision of the ``medical benefits package''. Care referred to 
in the ``medical benefits package'' will be provided to individuals only 
if it is determined by appropriate healthcare professionals that the 
care is needed to promote, preserve, or restore the health of the 
individual and is in accord with generally accepted standards of medical 
practice.
    (1) Promote health. Care is deemed to promote health if the care 
will enhance the quality of life or daily functional level of the 
veteran, identify a predisposition for development of a condition or 
early onset of disease which can be partly or totally ameliorated by 
monitoring or early diagnosis and treatment, and prevent future disease.
    (2) Preserve health. Care is deemed to preserve health if the care 
will maintain the current quality of life or daily functional level of 
the veteran, prevent the progression of disease, cure disease, or extend 
life span.
    (3) Restoring health. Care is deemed to restore health if the care 
will restore the quality of life or daily functional level that has been 
lost due to illness or injury.
    (c) In addition to the care specifically excluded from the ``medical 
benefits package'' under paragraphs (a) and (b) of this section, the 
``medical benefits package'' does not include the following:
    (1) Abortions and abortion counseling.
    (2) In vitro fertilization.
    (3) Drugs, biologicals, and medical devices not approved by the Food 
and Drug Administration unless the treating medical facility is 
conducting formal clinical trials under an Investigational Device 
Exemption (IDE) or an

[[Page 616]]

Investigational New Drug (IND) application, or the drugs, biologicals, 
or medical devices are prescribed under a compassionate use exemption.
    (4) Gender alterations.
    (5) Hospital and outpatient care for a veteran who is either a 
patient or inmate in an institution of another government agency if that 
agency has a duty to give the care or services.
    (6) Membership in spas and health clubs.

(Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1710A, 1721, 1722)

[64 FR 54217, Oct. 6, 1999, as amended at 67 FR 35039, May 17, 2002]



Sec. 17.39  Certain Filipino veterans.

    Filipino veterans receiving disability compensation at the full 
dollar value under Sec. 3.42 of this chapter are eligible for hospital 
care, nursing home care, and medical services in the same manner as a 
veteran.

(Authority: 38 U.S.C. 501, 1734

[67 FR 41179, June 17, 2002]



Sec. 17.40  Additional services for indigents.

    In addition to the usual medical services agreed upon between the 
governments of the United States and the Republic of the Philippines to 
be made available to patients for whom the Department of Veterans 
Affairs has authorized care at the Veterans Memorial Medical Center, any 
such patient determined by the U.S. Department of Veterans Affairs to be 
indigent or without funds may be furnished toilet articles and barber 
services, including haircutting and shaving necessary for hygienic 
reasons.

[33 FR 5299, Apr. 3, 1968, as amended at 47 FR 58247, Dec. 30, 1982. 
Redesignated at 61 FR 21965, May 13, 1996]

              Examinations and Observation and Examination



Sec. 17.41  Persons eligible for hospital observation and physical 
examination.

    Hospitalization for observation and physical (including mental) 
examination may be effected when requested by an authorized official, or 
when found necessary in examination of the following persons:
    (a) Claimants or beneficiaries of VA for purposes of disability 
compensation, pension, participation in a rehabilitation program under 
38 U.S.C. chapter 31, and Government insurance. (38 U.S.C. 1711(a))
    (b) Claimants or beneficiaries referred to a diagnostic center for 
study to determine the clinical identity of an obscure disorder.
    (c) Employees of the Department of Veterans Affairs when necessary 
to determine their mental or physical fitness to perform official 
duties.
    (d) Claimants or beneficiaries of other Federal agencies:
    (1) Department of Justice--plaintiffs in Government insurance suits.
    (2) United States Civil Service Commission--annuitants or applicants 
for retirement annuity, and such examinations of prospective appointees 
as may be requested.
    (3) Office of Workers' Compensation Programs--to determine identity, 
severity, or persistence of disability.
    (4) Railroad Retirement Board--applicants for annuity under Public 
No. 162, 75th Congress.
    (5) Other Federal agencies.
    (e) Pensioners of nations allied with the United States in World War 
I and World War II, upon authorization from accredited officials of the 
respective governments.

[13 FR 7156, Nov. 27, 1948, as amended at 16 FR 12091, Nov. 30, 1951; 19 
FR 6716, Oct. 19, 1954; 32 FR 13813, Oct. 4, 1967; 39 FR 32606, Sept. 
10, 1974; 49 FR 5616, Feb. 14, 1984. Redesignated and amended at 61 FR 
21965, 21966, May 13, 1996]



Sec. 17.42  Examinations on an outpatient basis.

    Physical examinations on an outpatient basis may be furnished to 
applicants who have been tentatively determined to be eligible for 
Department of Veterans Affairs hospital or domiciliary care to determine 
their need for such care and to the same categories of persons for whom 
hospitalization for observation and examination may be authorized under 
Sec. 17.41.

[35 FR 6586, Apr. 24, 1970. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996]

[[Page 617]]

               Hospital, Domiciliary and Nursing Home Care



Sec. 17.43  Persons entitled to hospital or domiciliary care.

    Hospital or domiciliary care may be provided:
    (a) Not subject to the eligibility provisions of 38 U.S.C. 1710, 
1722, and 1729, and 38 CFR 17.44 and 17.45, for:
    (1) Persons in the Armed Forces when duly referred with 
authorization therefor, may be furnished hospital care. Emergency 
treatment may be rendered, without obtaining formal authorization, to 
such persons upon their own application, when absent from their 
commands. Identification of active duty members of the uniformed 
services will be made by military identification card.
    (2) Hospital care may be provided, upon authorization, for 
beneficiaries of the Public Health Service, Office of Workers' 
Compensation Programs, and other Federal agencies.
    (3) Pensioners of nations allied with the United States in World War 
I and World War II may be supplied hospital care when duly authorized.
    (b) Emergency hospital care may be provided for:
    (1) Persons having no eligibility, as a humanitarian service.
    (2) Persons admitted because of presumed discharge or retirement 
from the Armed Forces, but subsequently found to be ineligible as such.
    (3) Employees (not potentially eligible as ex-members of the Armed 
Forces) and members of their families, when residing on reservations of 
field facilities of the Department of Veterans Affairs, and when they 
cannot feasibly obtain emergency treatment from private facilities.
    (c) Hospital care when incidental to, and to the extent necessary 
for, the use of a specialized Department of Veterans Affairs medical 
resource pursuant to a sharing agreement entered into under Sec. 
17.210, may be authorized for any person designated by the other party 
to the agreement as a patient to be benefited under the agreement.
    (d) The authorization of services under any provision of this 
section, except services for eligible veterans, is subject to charges as 
required by Sec. 17.101.

[23 FR 6498, Aug. 22, 1958, as amended at 24 FR 8327, Oct. 14, 1959; 32 
FR 6841, May 4, 1967; 34 FR 9340, June 13, 1969; 35 FR 6586, Apr. 24, 
1970; 39 FR 32606, Sept. 10, 1974. Redesignated and amended at 61 FR 
21965, 21966, May 13, 1996; 64 FR 54218, Oct. 6, 1999]



Sec. 17.44  Hospital care for certain retirees with chronic disability 
(Executive Orders 10122, 10400 and 11733).

    Hospital care may be furnished when beds are available to members or 
former members of the uniformed services (Army, Navy, Air Force, Marine 
Corps, Coast Guard, Coast and Geodetic Survey, now National Oceanic and 
Atmospheric Administration hereinafter referred to as NOAA, and Public 
Health Service) temporarily or permanently retired for physical 
disability or receiving disability retirement pay who require hospital 
care for chronic diseases and who have no eligibility for hospital care 
under laws governing the Department of Veterans Affairs, or who having 
eligibility do not elect hospitalization as Department of Veterans 
Affairs beneficiaries. Care under this section is subject to the 
following conditions:
    (a) Persons defined in this section who are members or former 
members of the active military, naval, or air service must agree to pay 
the subsistence rate set by the Secretary of Veterans Affairs, except 
that no subsistence charge will be made for those persons who are 
members or former members of the Public Health Service, Coast Guard, 
Coast and Geodetic Survey now NOAA, and enlisted personnel of the Army, 
Navy, Marine Corps, and Air Force.
    (b) Under this section, the term chronic diseases shall include 
chronic arthritis, malignancy, psychiatric disorders, poliomyelitis with 
residuals, neurological disabilities, diseases of the nervous system, 
severe injuries to the nervous system, including quadriplegia, 
hemiplegia and paraplegia, tuberculosis, blindness and deafness 
requiring definitive rehabilitation, disability from major amputation, 
and other diseases as may be agreed upon

[[Page 618]]

from time to time by the Under Secretary for Health and designated 
officials of the Department of Defense and Department of Health and 
Human Services. For the purpose of this section, blindness is defined as 
corrected visual acuity of 20/200 or less in the better eye, or 
corrected 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 its widest diameter subtends the widest diameter of the field of 
the better eye at an angle no greater than 20[deg].
    (c) In the case of persons who are former members of the Coast and 
Geodetic Survey, care may be furnished under this section even though 
their retirement for disability was from the Environmental Science 
Services Administration or NOAA.

[34 FR 9340, June 13, 1969, as amended at 39 FR 1841, Jan. 15, 1974; 47 
FR 58247, Dec. 30, 1982. Redesignated at 61 FR 21965, May 13, 1996, as 
amended at 62 FR 17072, Apr. 9, 1997]



Sec. 17.45  Hospital care for research purposes.

    Subject to the provisions of Sec. 17.62(g), any person who is a 
bona fide volunteer may be admitted to a Department of Veterans Affairs 
hospital when the treatment to be rendered is part of an approved 
Department of Veterans Affairs research project and there are 
insufficient veteran-patients suitable for the project.

[35 FR 11470, July 17, 1970. Redesignated at 61 FR 21965, May 13, 1996]



Sec. 17.46  Eligibility for hospital, domiciliary or nursing home 

care of persons discharged or released from active military, naval, 
or air service.

    (a) In furnishing hospital care under 38 U.S.C. 1710(a)(1), VA 
officials shall:
    (1) If the veteran is in immediate need of hospitalization, furnish 
care at VA facility where the veteran applies or, if that facility is 
incapable of furnishing care, arrange to admit the veteran to the 
nearest VA medical center, or Department of Defense hospital with which 
VA has a sharing agreement under 38 U.S.C. 8111, which is capable of 
providing the needed care, or if VA or DOD facilities are not available, 
arrange for care on a contract basis if authorized by 38 U.S.C. 1703 and 
38 CFR 17.52; or
    (2) If the veteran needs non-immediate hospitalization, schedule the 
veteran for admission at VA facility where the veteran applies, if the 
schedule permits, or refer the veteran for admission or scheduling for 
admission at the nearest VA medical center, or Department of Defense 
facility with which VA has a sharing agreement under 38 U.S.C. 8111.


(Authority: 38 U.S.C. 1703, 1710; secs. 19011-19012, Pub. L. 99-272)

    (b) Domiciliary care may be furnished when needed to:
    (1) Any veteran whose annual income does not exceed the maximum 
annual rate of pension payable to a veteran in need of regular aid and 
attendance, or
    (2) Any veteran who the Secretary determines had no adequate means 
of support. An additional requirement for eligibility for domiciliary 
care is the ability of the veteran to perform the following:
    (i) Perform without assistance daily ablutions, such as brushing 
teeth; bathing; combing hair; body eliminations.
    (ii) Dress self, with a minimum of assistance.
    (iii) Proceed to and return from the dining hall without aid.
    (iv) Feed Self.
    (v) Secure medical attention on an ambulatory basis or by use of 
personally propelled wheelchair.
    (vi) Have voluntary control over body eliminations or control by use 
of an appropriate prosthesis.
    (vii) Share in some measure, however slight, in the maintenance and 
operation of the facility.
    (viii) Make rational and competent decisions as to his or her desire 
to remain or leave the facility.

(Authority: 38 U.S.C. 1710(b), sec. 102, Pub. L. 100-322)

[24 FR 8328, Oct. 4, 1959, as amended at 30 FR 1787, Feb. 9, 1965; 32 FR 
13813, Oct. 4, 1967; 34 FR 9340, June 13, 1969; 39 FR 1841, Jan. 15, 
1974; 45 FR 6935, Jan. 31, 1980; 51 FR 25064, July 10, 1986; 52 FR 
11259, Apr. 8, 1987; 53 FR 9627, Mar. 24, 1988; 53 FR 32391, Aug. 25, 
1988; 56 FR 5757, Feb. 13, 1991. Redesignated and amended at 61 FR 
21965, 21966, May 13, 1996]

[[Page 619]]



Sec. 17.47  Considerations applicable in determining eligibility for 
hospital, nursing home or domiciliary care.

    (a)(1) For applicants discharged or released for disability incurred 
or aggravated in line of duty and who are not in receipt of compensation 
for service-connected or service-aggravated disability, the official 
records of the Armed Forces relative to findings of line of duty for its 
purposes will be accepted in determining eligibility for hospital care. 
Where the official rec ords of the Armed Forces show a finding of 
disability not incurred or aggravated in line of duty and evidence is 
submitted to the Department of Veterans Affairs which permits of a 
different finding, the decision of the Armed Forces will not be binding 
upon the Department of Veterans Affairs, which will be free to make its 
own determination of line of duty incurrence or aggravation upon 
evidence so submitted. It will be incumbent upon the applicant to 
present controverting evidence and, until such evidence is presented and 
a determination favorable to the applicant is made by the Department of 
Veterans Affairs, the finding of the Armed Forces will control and 
hospital care will not be authorized. Such controverting evidence, when 
received from an applicant, will be referred to the adjudicating agency 
which would have jurisdiction if the applicant was filing claim for 
pension or disability compensation, and the determination of such agency 
as to line of duty, which is promptly to be communicated to the head of 
the field facility receiving the application for hospital care, will 
govern the facility Director's disapproval or approval of admission, 
other eligibility requirements having been met. Where the official 
records of the Armed Forces show that the disability for which a veteran 
was discharged or released from the Armed Forces under other than 
dishonorable conditions was incurred or aggravated in the line of duty, 
such showing will be accepted for the purpose of determining his or her 
eligibility for hospitalization, notwithstanding the fact that the 
Department of Veterans Affairs has made a determination in connection 
with a claim for monetary benefits that the disability was incurred or 
aggravated not in line of duty.
    (2) In those exceptional cases where the official records of the 
Armed Forces show discharge or release under other than dishonorable 
conditions because of expiration of period of enlistment or any other 
reason except disability, but also show a disability incurred or 
aggravated in line of duty during the said enlistment; and the 
disability so recorded is considered in medical judgment to be or to 
have been of such character, duration, and degree as to have justified a 
discharge or release for disability had the period of enlistment not 
expired or other reason for discharge or release been given, the Under 
Secretary for Health, upon consideration of a clear, full statement of 
circumstances, is authorized to approve admission of the applicant for 
hospital care, provided other eligibility requirements are met. A 
typical case of this kind will be one where the applicant was under 
treatment for the said disability recorded during his or her service at 
the time discharge or release was given for the reason other than 
disability.
    (b)(1) Under 38 U.S.C. 1710(a)(1), veterans who are receiving 
disability compensation awarded under Sec. 3.800 of this chapter, where 
a disease, injury or the aggravation of an existing disease or injury 
occurs as a result of VA examination, medical or surgical treatment, or 
of hospitalization in a VA health care facility or of participation in a 
rehabilitation program under 38 U.S.C. ch. 31, under any law 
administered by VA and not the result of his/her own willful misconduct. 
Treatment may be provided for the disability for which the compensation 
is being paid or for any other disability. Treatment under the authority 
of 38 U.S.C. 1710(a)(1) may not be authorized during any period when 
disability compensation under Sec. 3.800 of this title is not being 
paid because of the provision of Sec. 3.800(a)(2), except to the extent 
continuing eligibility for such treatment is provided for in the 
judgment for settlement described in Sec. 3.800(a)(2) of this title.


(Authority: 38 U.S.C. 1710(a); sec. 701, Pub. L. 98-160, Pub. L. 99-272)


[[Page 620]]


    (2) For purposes of eligibility for domiciliary care, the phrase no 
adequate means of support refers to an applicant for domiciliary care 
whose annual income exceeds the annual rate of pension for a veteran in 
receipt of regular aid and attendance, as defined in 38 U.S.C. 1503, but 
who is able to demonstrate to competent VA medical authority, on the 
basis of objective evidence, that deficits in health and/or functional 
status render the applicant incapable of pursuing substantially gainful 
employment, as determined by the Chief of Staff, and who is otherwise 
without the means to provide adequately for self, or be provided for in 
the community.


(Authority: 38 U.S.C. 1710(a); sec. 701, Pub. L. 98-160, Pub. L. 99-272)

    (c) A disability, disease, or defect will comprehend any acute, 
subacute, or chronic disease (or a general medical, tuberculous, or 
neuropsychiatric type) of any acute, subacute, or chronic surgical 
condition susceptible of cure or decided improvement by hospital care; 
or any condition which does not require hospital care for an acute or 
chronic condition but requires domiciliary care. Domiciliary care, as 
the term implies, is the provision of a home, with such ambulant medical 
care as is needed. To be provided with domiciliary care, the applicant 
must consistently have a disability, disease, or defect which is 
essentially chronic in type and is producing disablement of such degree 
and probable persistency as will incapacitate from earning a living for 
a prospective period.


(Authority: 38 U.S.C. 1701, 1710)

    (d)(1) For purposes of determining eligibility for hospital or 
nursing home care under Sec. 17.47(a), a veteran will be determined 
unable to defray the expenses of necessary care if the veteran agrees to 
provide verifiable evidence, as determined by the Secretary, that:
    (i) The veteran is eligible to receive medical assistance under a 
State plan approved under title XIX of the Social Security Act;


(Authority: 42 U.S.C. 1396 et seq.)

    (ii) The veteran is in receipt of pension under 38 U.S.C. 1521; or
    (iii) The veteran's attributable income does not exceed $15,000 if 
the veteran has no dependents, $18,000 if the veteran has one dependent, 
plus $1,000 for each additional dependent.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

    (2) For purposes of determining eligibility for hospital or nursing 
home care under Sec. 17.47(c), a veteran will be determined eligible 
for necessary care if the veteran agrees to provide verifiable evidence, 
as determined by the Secretary, that: The veteran's attributable income 
does not exceed $20,000 if the veteran has no dependents, $25,000 if the 
veteran has one dependent, plus $1,000 for each additional dependent.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

    (3) Effective on January 1 of each year after calendar year 1986, 
the amounts set forth in paragraph (d)(1) and (2) of this section shall 
be increased by the percentage by which the maximum rates of pension 
were increased under 38 U.S.C. 1111(a), during the preceding year.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

    (4) Determinations with respect to attributable income made under 
paragraph (d)(1) and (2) of this section, shall be made in the same 
manner, including the same sources of income and exclusions from income, 
as determinations with respect to income are made for determining 
eligibility for pension under Sec. Sec. 3.271 and 3.272 of this title. 
The term attributable income means income of a veteran for the calendar 
year preceding application for care, determined in the same manner as 
the manner in which a determination is made of the total amount of 
income by which the rate of pension for such veteran under 38 U.S.C. 
1521 would be reduced if such veteran were eligible for pension under 
that section.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)


[[Page 621]]


    (5) Notwithstanding the attributable income of a veteran, VA may 
determine that such veteran is not eligible under paragraph (d)(1) and 
(2) of this section if the corpus of the estate of the veteran is such 
that under all the circumstances it is reasonable that some part of the 
corpus of the estate of the veteran be consumed for the veteran's 
maintenance. The corpus of the estate of a veteran shall be determined 
in the same manner as determinations are made with respect to the 
determinations of eligibility for pension under Sec. 3.275 of this 
chapter. The term corpus of the estate of the veteran includes the 
corpus of the estates of the veteran's spouse and dependent children, if 
any.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

    (6) In order to avoid hardship VA may determine that a veteran is 
eligible for care notwithstanding that the veteran does not meet the 
income requirements established in paragraph (d)(1)(iii) or (d)(2) of 
this section, if projections of the veteran's income for the year 
following application for care are substantially below the income 
requirements established in paragraph (d)(1)(iii) or (d)(2) of this 
section.


(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

    (e)(1) If VA determines that an individual was incorrectly charged a 
copayment, VA will refund the amount of any copayment actually paid by 
that individual.


(Authority: 38 U.S.C. 501; sec. 19011, Pub. L. 99-272)

    (2) In the event a veteran provided inaccurate information on an 
application and is incorrectly deemed eligible for care under 38 U.S.C. 
1710(a)(1) rather than Sec. 1710(a)(2), VA shall retroactively bill the 
veteran for the applicable copayment.


(Authority: 38 U.S.C. 501 and 1710; sec. 19011, Pub. L. 99-272)

    (f) If a veteran who receives hospital or nursing home care under 38 
U.S.C. 1710(a)(2) or outpatient care under 38 U.S.C. 1712(a)(4) by 
virtue of the veteran's eligibility for hospital care under 38 U.S.C. 
1710(a), fails to pay to the United States the amounts agreed to under 
those sections shall be grounds for determining, in accordance with 
guidelines promulgated by the Under Secretary for Health, that the 
veteran is not eligible to receive further care under those sections 
until such amounts have been paid in full.


(Authority: 38 U.S.C. 1710, 1721; sec. 19011, Pub. L. 99-272)

    (g)(1) Persons hospitalized who have no service-connected 
disabilities pursuant to Sec. 17.47, and/or persons receiving 
outpatient medical services pursuant to paragraphs (e), (f), (i), (j), 
and/or (k) of Sec. 17.60 who have no service-connected disabilities who 
it is believed may be eligible for hospital care and/or medical 
services, or reimbursement for the expenses of care or services for all 
or part of the cost thereof by reason of the following:
    (i) Membership in a union, fraternal or other organization, or
    (ii) Coverage under an insurance policy, or contract, medical, or 
hospital service agreement, membership, or subscription contract or 
similar arrangement under which health services for individuals are 
provided or the expenses of such services are paid, will not be 
furnished hospital care or medical services without charge therefore to 
the extent of the amount for which such parties referred to in 
paragraphs (g)(1)(i) or (g)(1)(ii) of this section, are, will become, or 
may be liable. Persons believed entitled to care under any of the plans 
discussed above will be required to provide such information as the 
Secretary may require. Provisions of this paragraph are effective April 
7, 1986, except in the case of a health care policy or contract that was 
entered into before that date, the effective date shall be the day after 
the plan was modified or renewed or on which there was any change in 
premium or coverage and will apply only to care and services provided by 
VA after the date the plan was modified, renewed, or on which there was 
any change in premium or coverage.


(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)


[[Page 622]]


    (2) Persons hospitalized for the treatment of nonservice-connected 
disabilities pursuant to Sec. 17.47, or persons receiving outpatient 
medical services pursuant to paragraph (e), (f), (h), (i), (j), or (k) 
of Sec. 17.60, and who it is believed may be entitled to hospital care 
and/or medical services or to reimbursement for all or part of the cost 
thereof from any one or more of the following parties:
    (i) Workers' Compensation or employer's liability statutes, State or 
Federal;
    (ii) By reason of statutory or other relationships with third 
parties, including those liable for damages because of negligence or 
other legal wrong;
    (iii) By reason of a statute in a State, or political subdivision of 
a State;
    (A) Which requires automobile accident reparations or;
    (B) Which provides compensation or payment for medical care to 
victims suffering personal injuries as the result of a crime of personal 
violence;
    (iv) Right to maintenance and cure in admiralty;

will not be furnished hospital care or medical services without charge 
therefore to the extent of the amount for which such parties are, will 
become, or may be liable. Persons believed entitled to care under 
circumstances described in paragraph (g)(2)(ii) of this section will be 
required to complete such forms as the Secretary may require, such as a 
power of attorney and assignment. Notice of this assignment will be 
mailed promptly to the party or parties believed to be liable. When the 
amount of charges is ascertained, a bill therefore will be mailed to 
such party or parties. Persons believed entitled to care under 
circumstances described in paragraph (g)(2)(i) or (g)(2)(iii) of this 
section will be required to complete such forms as the Secretary may 
require.


(Authority: 38 U.S.C. 1729, sec. 19013, Pub. L. 99-272)

    (h) Within the limits of Department of Veterans Affairs facilities, 
any veteran who is receiving nursing home care in a hospital under the 
direct jurisdiction of the Department of Veterans Affairs, may be 
furnished medical services to correct or treat any nonservice-connected 
disability of such veteran, in addition to treatment incident to the 
disability for which the veteran is hospitalized, if the veteran is 
willing, and such services are reasonably necessary to protect the 
health of such veteran.
    (i) Participating in a rehabilitation program under 38 U.S.C. 
chapter 31 refers to any veteran
    (1) Who is eligible for and entitled to participate in a 
rehabilitation program under chapter 31.
    (i) Who is in an extended evaluation period for the purpose of 
determining feasibility, or
    (ii) For whom a rehabilitation objective has been selected, or
    (iii) Who is pursuing a rehabilitation program, or
    (iv) Who is pursuing a program of independent living, or
    (v) Who is being provided employment assistance under 38 U.S.C. 
chapter 31, and
    (2) Who is medically determined to be in need of hospital care or 
medical services (including dental) for any of the following reasons:
    (i) Make possible his or her entrance into a rehabilitation program; 
or
    (ii) Achieve the goals of the veteran's vocational rehabilitation 
program; or
    (iii) Prevent interruption of a rehabilitation program; or
    (iv) Hasten the return to a rehabilitation program of a veteran in 
interrupted or leave status; or
    (v) Hasten the return to a rehabilitation program of a veteran 
placed in discontinued status because of illness, injury or a dental 
condition; or
    (vi) Secure and adjust to employment during the period of employment 
assistance; or
    (vii) To enable the veteran to achieve maximum independence in daily 
living.


(Authority: 38 U.S.C. 3104(a)(9); Pub. L. 96-466, sec. 101(a))

    (j) Veterans eligible for treatment under chapter 17 of 38 U.S.C. 
who are alcohol or drug abusers or who are infected with the human 
immunodeficiency virus (HIV) shall not be discriminated against in 
admission or treatment by any Department of Veterans Affairs health care 
facility solely because of their alcohol or drug abuse

[[Page 623]]

or dependency or because of their viral infection. This does not 
preclude the rule of clinical judgment in determining appropriate 
treatment which takes into account the patient's immune status and/or 
the infectivity of the HIV or other pathogens (such as tuberculosis, 
cytemegalovirus, cryptosporidiosis, etc.). Hospital Directors are 
responsible for assuring that admission criteria of all programs in the 
medical center do not discriminate solely on the basis of alcohol, drug 
abuse or infection with human immunodeficiency virus. Quality Assurance 
Programs should include indicators and monitors for nondiscrimination.


(Authority: 38 U.S.C. 7333)

    (k) In seeking medical care from VA under 38 U.S.C. 1710 or 1712, a 
veteran shall furnish such information and evidence as the Secretary may 
require to establish eligibility.

(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)

[32 FR 13813, Oct. 4, 1967]

    Editorial Note: For Federal Register citations affecting Sec. 
17.47, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 17.48  Compensated Work Therapy/Transitional Residences program.

    (a) This section sets forth requirements for persons residing in 
housing under the Compensated Work Therapy/Transitional Residences 
program.
    (b) House managers shall be responsible for coordinating and 
supervising the day-to-day operations of the facilities. The local VA 
program coordinator shall select each house manager and may give 
preference to an individual who is a current or past resident of the 
facility or the program. A house manager must have the following 
qualifications:
    (1) A stable, responsible and caring demeanor;
    (2) Leadership qualities including the ability to motivate;
    (3) Effective communication skills including the ability to 
interact;
    (4) A willingness to accept feedback;
    (5) A willingness to follow a chain of command.
    (c) Each resident admitted to the Transitional Residence, except for 
a house manager, must also be in the Compensated Work Therapy program.
    (d) Each resident, except for a house manager, must bi-weekly, in 
advance, pay a fee to VA for living in the housing. The local VA program 
coordinator will establish the fee for each resident in accordance with 
the provisions of paragraph (d)(1) of this section.
    (1) The total amount of actual operating expenses of the residence 
(utilities, maintenance, furnishings, appliances, service equipment, all 
other operating costs) for the previous fiscal year plus 15 percent of 
that amount equals the total operating budget for the current fiscal 
year. The total operating budget is to be divided by the average number 
of beds occupied during the previous fiscal year and the resulting 
amount is the average yearly amount per bed. The bi-weekly fee shall 
equal 1/26th of the average yearly amount per bed, except that a 
resident shall not, on average, pay more than 30 percent of their gross 
CWT (Compensated Work Therapy) bi-weekly earnings. The VA program 
manager shall, bi-annually, conduct a review of the factors in this 
paragraph for determining resident payments. If he or she determines 
that the payments are too high or too low by more than 5 percent of the 
total operating budget, he or she shall recalculate resident payments 
under the criteria set forth in this paragraph, except that the 
calculations shall be based on the current fiscal year (actual amounts 
for the elapsed portion and projected amounts for the remainder).
    (2) If the revenues of a residence do not meet the expenses of the 
residence resulting in an inability to pay actual operating expenses, 
the medical center of jurisdiction shall provide the funds necessary to 
return the residence to fiscal solvency in accordance with the 
provisions of this section.
    (e) The length of stay in housing under the Compensated Work 
Therapy/Transitional Residences program is based on the individual needs 
of each resident, as determined by consensus of the resident and his/her 
VA Clinical

[[Page 624]]

Treatment team. However, the length of stay should not exceed 12 months.

(Authority: 38 U.S.C. 1772)

[70 FR 29627, May 24, 2005]



Sec. 17.49  Priorities for outpatient medical services and inpatient 
hospital care.

    In scheduling appointments for outpatient medical services and 
admissions for inpatient hospital care, the Under Secretary for Health 
shall give priority to:
    (a) Veterans with service-connected disabilities rated 50 percent or 
greater based on one or more disabilities or unemployability; and
    (b) Veterans needing care for a service-connected disability.

(Authority: 38 U.S.C. 101, 501, 1705, 1710)

[67 FR 58529, Sept. 17, 2002]

  Use of Department of Defense, Public Health Service or Other Federal 
                                Hospitals



Sec. 17.50  Use of Department of Defense, Public Health Service or 

other Federal hospitals with beds allocated to the Department of 
Veterans Affairs.

    Hospital facilities operated by the Department of Defense or the 
Public Health Service (or any other agency of the United States 
Government) may be used for the care of Department of Veterans Affairs 
patients pursuant to agreements between the Department of Veterans 
Affairs and the department or agency operating the facility. When such 
an agreement has been entered into and a bed allocation for Department 
of Veterans Affairs patients has been provided for in a specific 
hospital covered by the agreement, care may be authorized within the bed 
allocation for any veteran eligible under 38 U.S.C. 1710 or 38 CFR 
17.44. Care in a Federal facility not operated by the Department of 
Veterans Affairs, however, shall not be authorized for any military 
retiree whose sole basis for eligibility is under Sec. 17.46b, or, 
except in Alaska and Hawaii, for any retiree of the uniformed services 
suffering from a chronic disability whose entitlement is under Sec. 
17.46b, Sec. 17.47(b)(2) or Sec. 17.47(c)(2) regardless of whether he 
or she may have dual eligibility under other provisions of Sec. 17.47.

[39 FR 1842, Jan. 15, 1974, as amended at 45 FR 6936, Jan. 31, 1980, as 
amended at 61 FR 21966, May 13, 1996]



Sec. 17.51  Emergency use of Department of Defense, Public Health Service 
or other Federal hospitals.

    Hospital care in facilities operated by the Department of Defense or 
the Public Health Service (or any other agency of the U.S. Government) 
which do not have beds allocated for the care of Department of Veterans 
Affairs patients may be authorized subject to the limitations enumerated 
in Sec. 17.50 only in emergency circumstances for any veteran otherwise 
eligible for hospital care under 38 U.S.C. 1710 or 38 CFR 17.46.

[33 FR 19010, Dec. 20, 1968. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996]

                   Use of Public or Private Hospitals



Sec. 17.52  Hospital care and medical services in non-VA facilities.

    (a) When VA facilities or other government facilities are not 
capable of furnishing economical hospital care or medical services 
because of geographic inaccessibility or are not capable of furnishing 
care or services required, VA may contract with non-VA facilities for 
care in accordance with the provisions of this section. When demand is 
only for infrequent use, individual authorizations may be used. Care in 
public or private facilities, however, subject to the provisions of 
Sec. 17.53 through f, will only be authorized, whether under a contract 
or an individual authorization, for
    (1) Hospital care or medical services to a veteran for the treatment 
of--
    (i) A service-connected disability; or
    (ii) A disability for which a veteran was discharged or released 
from the active military, naval, or air service or
    (iii) A disability of a veteran who has a total disability permanent 
in nature from a service-connected disability, or
    (iv) For a disability associated with and held to be aggravating a 
service-connected disability, or
    (v) For any disability of a veteran participating in a 
rehabilitation program under 38 U.S.C. ch. 31 and when

[[Page 625]]

there is a need for hospital care or medical services for any of the 
reasons enumerated in Sec. 17.48(j).


(Authority: 38 U.S.C. 1703, 3104; sec. 101, Pub. L. 96-466; sec. 19012, 
Pub. L. 99-272)

    (2) Medical services for the treatment of any disability of--
    (i) A veteran who has a service-connected disability rated at 50 
percent or more,
    (ii) A veteran who has received VA inpatient care for treatment of 
nonservice-connected conditions for which treatment was begun during the 
period of inpatient care. The treatment period (to include care 
furnished in both facilities of VA and non-VA facilities or any 
combination of such modes of care) may not continue for a period 
exceeding 12 months following discharge from the hospital except when it 
is determined that a longer period is required by virtue of the 
disabilities being treated, and
    (iii) A veteran of the Mexican border period or World War I or who 
is in receipt of increased pension or additional compensation based on 
the need for aid and attendance or housebound benefits when it has been 
determined based on an examination by a physician employed by VA (or, in 
areas where no such physician is available, by a physician carrying out 
such function under a contract or fee arrangement), that the medical 
condition of such veteran precludes appropriate treatment in VA 
facilities;


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (3) Hospital care or medical services for the treatment of medical 
emergencies which pose a serious threat to the life or health of a 
veteran receiving hospital care or medical services in a facility over 
which the Secretary has direct jurisdiction or government facility with 
which the Secretary contracts, and for which the facility is not staffed 
or equipped to perform, and transfer to a public or private hospital 
which has the necessary staff or equipment is the only feasible means of 
providing the necessary treatment, until such time following the 
furnishing of care in the non-VA facility as the veteran can be safely 
transferred to a VA facility;


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (4) Hospital care for women veterans;


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (5) Through September 30, 1988, hospital care or medical services 
that will obviate the need for hospital admission for veterans in the 
Commonwealth of Puerto Rico, except that the dollar expenditure in 
Fiscal year 1986 cannot exceed 85% of the Fiscal year 1985 obligations, 
in Fiscal year 1987 the dollar expenditure cannot exceed 50% of the 
Fiscal year 1985 obligations and in Fiscal year 1988 the dollar 
expenditure cannot exceed 25% of the Fiscal year 1985 obligations.


(Authority: 38 U.S.C. 1703; sec. 102, Pub. L. 99-166; sec. 19012, Pub. 
L. 99-272)

    (6) Hospital care or medical services that will obviate the need for 
hospital admission for veterans in Alaska, Hawaii, Virgin Islands and 
other territories of the United States except that the annually 
determined hospital patient load and incidence of the furnishing of 
medical services to veterans hospitalized or treated at the expense of 
VA in government and non-VA facilities in each such State or territory 
shall be consistent with the patient load or incidence of the provision 
of medical services for veterans hospitalized or treated by VA within 
the 48 contiguous States.


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (7) Outpatient dental services and treatment, and related dental 
appliances, for a veteran who is a former prisoner of war and was 
detained or interned for a period of not less that 181 days.


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (8) Hospital care or medical services for the treatment of medical 
emergencies which pose a serious threat to the life or health of a 
veteran which developed during authorized travel to the

[[Page 626]]

hospital, or during authorized travel after hospital discharge 
preventing completion of travel to the originally designated point of 
return (and this will encompass any other medical services necessitated 
by the emergency, including extra ambulance or other transportation 
which may also be furnished at VA expense.


(Authority: 38 U.S.C. 1701(5))

    (9) Diagnostic services necessary for determination of eligibility 
for, or of the appropriate course of treatment in connection with, 
furnishing medical services at independent VA outpatient clinics to 
obviate the need for hospital admission.


(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)

    (10) For any disability of a veteran receiving VA contract nursing 
home care. The veteran is receiving contract nursing home care and 
requires emergency treatment in non-VA facilities.


(Authority: 38 U.S.C. 1703(a))

    (11) For completion of evaluation for observation and examination 
(O&E) purposes, clinic directors or their designees will authorize 
necessary diagnostic services at non-VA facilities (on an inpatient or 
outpatient basis) in order to complete requests from VA Regional Offices 
for O&E of a person to determine eligibility for VA benefits or 
services.
    (b) The Under Secretary for Health shall only furnish care and 
treatment under paragraph (a) of this section to veterans described in 
Sec. 17.47(d).
    (1) To the extent that resources are available and are not otherwise 
required to assure that VA can furnish needed care and treatment to 
veterans described in Sec. 17.47 (a) and (c), and
    (2) If the veteran agrees to pay the United States an amount as 
determined in Sec. 17.48(e).

(Authority: 38 U.S.C. 1703, 1710 and 1712; sec. 19011-19012, Pub. L. 99-
272)

[51 FR 25066, July 10, 1986, as amended at 53 FR 32391, Aug. 25, 1988; 
54 FR 53057, Dec. 27, 1989; 58 FR 32446, June 10, 1993. Redesignated and 
amended at 61 FR 21965, 21966, May 13, 1996; 62 FR 17072, Apr. 9, 1997]



Sec. 17.53  Limitations on use of public or private hospitals.

    The admission of any patient to a private or public hospital at 
Department of Veterans Affairs expense will only be authorized if a 
Department of Veterans Affairs medical center or other Federal facility 
to which the patient would otherwise be eligible for admission is not 
feasibly available. A Department of Veterans Affairs facility may be 
considered as not feasibly available when the urgency of the applicant's 
medical condition, the relative distance of the travel involved, or the 
nature of the treatment required makes it necessary or economically 
advisable to use public or private facilities. In those instances where 
care in public or private hospitals at Department of Veterans Affairs 
expense is authorized because a Department of Veterans Affairs or other 
Federal facility was not feasibly available, as defined in this section, 
the authorization will be continued after admission only for the period 
of time required to stabilize or improve the patient's condition to the 
extent that further care is no longer required to satisfy the purpose 
for which it was initiated.

[39 FR 17223, May 14, 1974, as amended at 47 FR 58248, Dec. 30, 1982. 
Redesignated at 61 FR 21965, May 13, 1996]



Sec. 17.54  Necessity for prior authorization.

    (a) The admission of a veteran to a non-Department of Veterans 
Affairs hospital at Department of Veterans Affairs expense must be 
authorized in advance. In the case of an emergency which existed at the 
time of admission, an authorization may be deemed a prior authorization 
if an application, whether formal or informal, by telephone, telegraph 
or other communication, made by the veteran or by others in his or her 
behalf is dispatched to the Department of Veterans Affairs (1) for 
veterans in the 48 contiguous States and Puerto Rico, within 72 hours 
after the hour of admission, including in the computation of time 
Saturday, Sunday and holidays, or (2) for veterans in a noncontig uous 
State, territory or possession of the United States (not including 
Puerto Rico) if facilities for dispatch of application as described in

[[Page 627]]

this section are not available within the 72-hour period, provided the 
application was filed within 72 hours after facilities became available.
    (b) When an application for admission by a veteran in one of the 48 
contiguous States in the United States or in Puerto Rico has been made 
more than 72 hours after admission, or more than 72 hours after 
facilities are available in a noncontiguous State, territory of 
possession of the United States, authorization for continued care at 
Department of Veterans Affairs expense shall be effective as of the 
postmark or dispatch date of the application, or the date of any 
telephone call constituting an informal application.

[42 FR 55212, Oct. 14, 1977. Redesignated at 61 FR 21965, May 13, 1996]



Sec. 17.55  Payment for authorized public or private hospital care.

    Except as otherwise provided in this section, payment for public or 
private hospital care authorized under 38 U.S.C. 1703 and 38 CFR 17.52 
of this part or under 38 U.S.C. 1728 and 38 CFR 17.120 of this part 
shall be based on a prospective payment system similar to that used in 
the Medicare program for paying for similar inpatient hospital services 
in the community. Payment shall be made using the Health Care Financing 
Administration (HCFA) PRICER for each diagnosis-related group (DRG) 
applicable to the episode of care.
    (a) Payment shall be made of the full prospective payment amount per 
discharge, as determined according to the methodology in subparts D and 
G of 42 CFR part 412, as appropriate.
    (b)(1) In the case of a veteran who was transferred to another 
facility before completion of care, VA shall pay the transferring 
hospital an amount calculated by the HCFA PRICER for each patient day of 
care, not to exceed the full DRG rate as provided in paragraph (a) of 
this section. The hospital that ultimately discharges the patient will 
receive the full DRG payment.
    (2) In the case of a veteran who has transferred from a hospital 
and/or distinct part unit excluded by Medicare from the DRG-based 
prospective payment system or from a hospital that does not participate 
in Medicare, the transferring hospital will receive a payment for each 
patient day of care not to exceed the amount provided in paragraph (i) 
of this section.
    (c) VA shall pay the providing facility the full DRG-based rate or 
reasonable cost, without regard to any copayments or deductible required 
by any Federal law that is not applicable to VA.
    (d) If the cost or length of a veteran's care exceeds an applicable 
threshold amount, as determined by the HCFA PRICER program, VA shall 
pay, in addition to the amount payable under paragraph (a) of this 
section, an outlier payment calculated by the HCFA PRICER program, in 
accordance with subpart F of 42 CFR part 412.
    (e) In addition to the amount payable under paragraph (a) of this 
section, VA shall pay, for each discharge, an amount to cover the non-
Federal hospital's capital-related costs, kidney, heart and liver 
acquisition costs incurred by hospitals with approved transplantation 
centers, direct costs of medical education, and the costs of qualified 
nonphysician anesthetists in small rural hospitals. These amounts will 
be determined by the Under Secretary for Health on an annual basis and 
published in the ``Notices'' section of the Federal Register.
    (f) Payment shall be made only for those services authorized by VA.
    (g) Payments made in accordance with this section shall constitute 
payment in full and the provider or agent for the provider may not 
impose any additional charge on a veteran or his or her health care 
insurer for any inpatient services for which payment is made by the VA.
    (h) Hospitals of distinct part hospital units excluded from the 
prospective payment system by Medicare and hospitals that do not 
participate in Medicare will be paid at the national cost-to-charge 
ratio times the billed charges that are reasonable, usual, customary, 
and not in excess of rates or fees the hospital charges the general 
public for similar services in the community.
    (i) A hospital participating in an alternative payment system that 
has been granted a Federal waiver from the prospective payment system 
under the provisions of 42 U.S.C. section

[[Page 628]]

1395f(b)(3) or 42 U.S.C. section 1395ww(c) for the purposes of Medicare 
payment shall not be subject to the payment methodology set forth in 
this section so long as such Federal waiver remains in effect.
    (j) Payments for episodes of hospital care furnished in Alaska that 
begin during the period starting on the effective date of this section 
through the 364th day thereafter will be in the amount determined by the 
HCFA PRICER plus 50 percent of the difference between the amount billed 
by the hospital and the amount determined by the PRICER. Claims for 
services provided during that period will be accepted for payment by VA 
under this paragraph (k) until December 31 of the year following the 
year in which this section became effective.
    (k) Notwithstanding other provisions of this section, VA, for public 
or private hospital care covered by this section, will pay the lesser of 
the amount determined under paragraphs (a) through (j) of this section 
or the amount negotiated with the hospital or its agent.

(Authority: 38 USC 513, 1703, 1728; Sec. 233 of P. L. 99-576)

[55 FR 42852, Oct. 24, 1990. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996; 62 FR 17072, Apr. 9, 1997; 63 FR 39515, July 23, 
1998; 65 FR 66637, Nov. 7, 2000]



Sec. 17.56  Payment for non-VA physician and other health care 
professional services.

    (a) Except for anesthesia services, and services provided in the 
State of Alaska under paragraph (d) of this section, payment for non-VA 
health care professional services associated with outpatient and 
inpatient care provided at non-VA facilities authorized under Sec. 
17.52, or made under Sec. 17.120 of this part, shall be the lesser of 
the amount billed or the amount calculated using the formula developed 
by the Centers for Medicare and Medicaid Services' (CMS) participating 
physician fee schedule for the period in which the service is provided 
(see 42 CFR Parts 414 and 415). This payment methodology is set forth in 
paragraph (b) of this section. If no amount has been calculated under 
Center for Medicare and Medicaid Services' participating physician fee 
schedule or if the services constitute anesthesia services, payment for 
such non-VA health care professional services associated with outpatient 
and inpatient care provided at non-VA facilities authorized under Sec. 
17.52, or made under Sec. 17.120 of this part, shall be the lesser of 
the actual amount billed or the amount calculated using the 75th 
percentile methodology set forth in paragraph (c) of this section; or 
the usual and customary rate if there are fewer than 8 treatment 
occurrences for a procedure during the previous fiscal year.
    (b) The payment amount for each service paid under Centers for 
Medicare and Medicaid Services' participating physician fee schedule is 
the product of three factors: a nationally uniform relative value for 
the service; a geographic adjustment factor for each physician fee 
schedule area; and a nationally uniform conversion factor for the 
service. The conversion factor converts the relative values into payment 
amounts. For each physician fee schedule service, there are three 
relative values: An RVU for physician work; an RVU for practice expense; 
and an RVU for malpractice expense. For each of these components of the 
fee schedule, there is a geographic practice cost index (GPCI) for each 
fee schedule area. The GPCIs reflect the relative costs of practice 
expenses, malpractice insurance, and physician work in an area compared 
to the national average. The GPCIs reflect the full variation from the 
national average in the costs of practice expenses and malpractice 
insurance, but only one-quarter of the difference in area costs for 
physician work. The general formula calculating the Centers for Medicare 
and Medicaid Services' fee schedule amount for a given service in a 
given fee schedule area can be expressed as: Payment = [(RVUwork x 
GPCIwork) + (RVUpractice expense x GPCIpractice expense) + 
(RVUmalpractice x GPCImalpractice)] x CF.
    (c) Payment under the 75th percentile methodology is determined for 
each VA medical facility by ranking all occurrences (with a minimum of 
eight) under the corresponding code during the previous fiscal year with 
charges ranked from the highest rate

[[Page 629]]

billed to the lowest rate billed and the charge falling at the 75th 
percentile as the maximum amount to be paid.
    (d) For services rendered in Alaska, VA will pay for services in 
accordance with a fee schedule that uses the Health Insurance 
Portability and Accountability Act mandated national standard coding 
sets. VA will pay a specific amount for each service for which there is 
a corresponding code. Under the VA Alaska Fee Schedule the amount paid 
in Alaska for each code will be 90 percent of the average amount VA 
actually paid in Alaska for the same services in Fiscal Year (FY) 2003. 
For services that VA provided less than eight times in Alaska in FY 
2003, for services represented by codes established after FY 2003, and 
for unit-based codes prior to FY 2004, VA will take the Centers for 
Medicare and Medicaid Services' rate for each code and multiply it times 
the average percentage paid by VA in Alaska for Centers for Medicare and 
Medicaid Services-like codes. VA will increase the amounts on the VA 
Alaska Fee Schedule annually beginning in 2005 in accordance with the 
published national Medicare Economic Index (MEI). For those years where 
the annual average is a negative percentage, the fee schedule will 
remain the same as the previous year. Payment for non-VA health care 
professional services in Alaska shall be the lesser of the amount 
billed, or the amount calculated under this subpart.
    (e) Payments made in accordance with this section shall constitute 
payment in full. Accordingly, the provider or agent for the provider may 
not impose any additional charge for any services for which payment is 
made by VA.
    (f) Notwithstanding other provisions of this section, VA, for 
physician services covered by this section, will pay the lesser of the 
amount determined under paragraphs (a) through (e) of this section or 
the amount negotiated with the physician or the physician's agent.

(Authority: 38 U.S.C. 513, 38 U.S.C. 1703, 38 U.S.C. 1728)

[63 FR 39515, July 23, 1998, as amended at 65 FR 66637, Nov. 7, 2000; 70 
FR 5927, Feb. 4, 2005]

              Use of Community Nursing Home Care Facilities



Sec. 17.57  Use of community nursing homes.

    (a) Nursing home care in a contract public or private nursing home 
facility may be authorized for the following: Any veteran who has been 
discharged from a hospital under the direct jurisdiction of VA and is 
currently receiving VA hospital based home health services.


(Authority: 38 U.S.C. 1720; sec. 108, Pub. L. 99-166)

    (b) To the extent that resources are available and are not otherwise 
required to assure that VA can furnish needed care and treatment to 
veterans described in 38 U.S.C. 1710(a)(1), the Under Secretary for 
Health may furnish care under this paragraph to any veteran described in 
38 U.S.C. 1710(a)(2) if the veteran agrees to pay the United States an 
amount as determined in 38 U.S.C. 1710(f).


(Authority: 38 U.S.C. 1710, 1720; sec. 19011, Pub. L. 99-272)

(Authority: 38 U.S.C. 1720(b)

[51 FR 25067, July 10, 1986. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996 and further redesignated at 63 FR 39515, July 23, 
1998]



Sec. 17.60  Extensions of community nursing home care beyond six months.

    Directors of health care facilities may authorize, for any veteran 
whose hospitalization was not primarily for a service-connected 
disability, an extension of nursing care in a public or private nursing 
home care facility at VA expense beyond six months when the need for 
nursing home care continues to exist and
    (a) Arrangements for payment of such care through a public 
assistance program (such as Medicaid) for which the veteran has applied, 
have been delayed due to unforeseen eligibility problems which can 
reasonably be expected to be resolved within the extension period, or
    (b) The veteran has made specific arrangements for private payment 
for such care, and

[[Page 630]]

    (1) Such arrangements cannot be effectuated as planned because of 
unforseen, unavoidable difficulties, such as a temporary obstacle to 
liquidation of property, and
    (2) Such difficulties can reasonably be expected to be resolved 
within the extension period; or
    (c) The veteran is terminally ill and life expectancy has been 
medically determined to be less than six months.
    (d) In no case may an extension under paragraph (a) or (b) of this 
section exceed 45 days.

(Authority: 38 U.S.C. 501, 1720(a))

[53 FR 13121, Apr. 21, 1988. Redesignated at 61 FR 21965, May 13, 1996]

                       Community Residential Care

    Source: 54 FR 20842, May 15, 1989, unless otherwise noted.



Sec. 17.61  Eligibility.

    VA health care personnel may assist a veteran by referring such 
veteran for placement in a privately or publicly-owned community 
residential care facility if:
    (a) At the time of initiating the assistance:
    (1) The veteran is receiving VA medical services on an outpatient 
basis or VA medical center, domiciliary, or nursing home care; or
    (2) Such care or services were furnished the veteran within the 
preceding 12 months;
    (b) The veteran does not need hospital or nursing home care but is 
unable to live independently because of medical (including psychiatric) 
conditions and has no suitable family resources to provide needed 
monitoring, supervision, and any necessary assistance in the veteran's 
daily living activities; and
    (c) The facility has been approved in accordance with Sec. 17.63 of 
this part.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996]



Sec. 17.62  Definitions.

    For the purpose of Sec. Sec. 17.61 through 17.72:
    (a) The term community residential care means the monitoring, 
supervision, and assistance, in accordance with a statement of needed 
care, of the daily living activities of referred veterans in an approved 
home in the community by the facility's provider.
    (b) The term statement of needed care means a written description of 
needed assistance in daily living activities devised by VA for each 
referred veteran in the community residential care program.
    (c) The term daily living activities includes:
    (1) Walking;
    (2) Bathing, shaving, brushing teeth, combing hair;
    (3) Dressing;
    (4) Eating;
    (5) Getting in or getting out of bed;
    (6) Laundry;
    (7) Cleaning room;
    (8) Managing money;
    (9) Shopping;
    (10) Using public transportation;
    (11) Writing letters;
    (12) Making telephone calls;
    (13) Obtaining appointments;
    (14) Self-administration of medications;
    (15) Recreational and leisure activities; and
    (16) Other similar activities.
    (d) The term paper hearing means a review of the written evidence of 
record by the hearing official.
    (e) The term oral hearing means the in person testimony of 
representatives of a community residential care facility and of VA 
before the hearing official and the review of the written evidence of 
record by that official.
    (f) The term approving official means the Director or, if designated 
by the Director, the Associate Director or Chief of Staff of a 
Department of Veterans Affairs Medical Center or Outpatient Clinic which 
has jurisdiction to approve a community residential care facility.
    (g) The term hearing official means the Director or, if designated 
by the Director, the Associate Director or Chief of Staff of a 
Department of Veterans Affairs Medical Center or Outpatient Clinic which 
has jurisdiction to

[[Page 631]]

approve a community residential care facility.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21966, May 13, 1996]



Sec. 17.63  Approval of community residential care facilities.

    The approving official may approve a community residential care 
facility, based on the report of a VA inspection and on any findings of 
necessary interim monitoring of the facility, if that facility meets the 
following standards:
    (a) Health and safety standards. The facility must:
    (1) Meet all State and local regulations including construction, 
maintenance, and sanitation regulations;
    (2) Meet the requirements of chapters 1-7, 22-23, and 31 and 
Appendix A of the NFPA 101, National Fire Protection Association's Life 
Safety Code (1994 edition), and NFPA 101A, Guide on Alternative 
Approaches to Life Safety (1995 edition), which are incorporated by 
reference. The institution shall provide sufficient staff to assist 
patients in the event of fire or other emergency. Incorporation by 
reference of these materials was approved by the Director of the Federal 
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These 
materials incorporated by reference are available for inspection at the 
Department of Veterans Affairs, Office of Regulations Management (02D), 
Room 1154, 810 Vermont Avenue, NW., Washington, DC 20420 or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. Copies may be obtained from the 
National Fire Protection Association, Battery March Park, Quincy, MA 
02269. (For ordering information, call toll-free 1-800-344-3555.) Any 
equivalencies or variances to Department of Veterans Affairs 
requirements must be approved by the appropriate Veterans Health 
Administration Veterans Integrated Service Networks (VISN) Director;
    (3) Have safe and functioning systems for heating, hot and cold 
water, electricity, plumbing, sewage, cooking, laundry, artificial and 
natural light, and ventilation.
    (b) Health services. The facility must agree to assist residents in 
obtaining the statement of needed care developed by VA.
    (c) Interior plan. The facility must:
    (1) Have comfortable dining areas, adequate in size for the number 
of residents;
    (2) Have confortable living room areas, adequate in size to 
accommodate a reasonable proportion of residents; and
    (3) Maintain at least one functional toilet and lavatory, and 
bathing or shower facility for every six people living in the facility, 
including provider and staff.
    (d) Laundry service. The facility must provide or arrange for 
laundry service.
    (e) Residents' bedrooms. Residents' bedrooms must:
    (1) Contain no more than four beds;
    (2) Measure, exclusive of closet space, at least 100 square feet for 
a single-resident room, or 80 square feet for each resident in a 
multiresident room; and
    (3) Contain a suitable bed for each resident and appropriate 
furniture and furnishings.
    (f) Nutrition. The facility must:
    (1) Provide a safe and sanitary food service that meets individual 
nutritional requirements and residents' preferences;
    (2) Plan menus to meet currently recommended dietary allowances;
    (g) Activities. The facility must plan and facilitate appropriate 
recreational and leisure activities to meet individual needs specified 
in the statement of heeded care.
    (h) Residents' rights. The facility must have written policies and 
procedures that ensure the following rights for each resident:
    (1) Each resident has the right to:
    (i) Be informed of the rights described in this section;
    (ii) The confidentiality and nondisclosure of information obtained 
by community residential care facility staff on the residents and the 
residents' records subject to the requirements of applicable law;
    (iii) Be able to inspect the residents' own records kept by the 
community residential care facility;

[[Page 632]]

    (iv) Exercise rights as a citizen; and
    (v) Voice grievances and make recommendations concerning the 
policies and procedures of the facility.
    (2) Financial affairs. Residents must be allowed to manage their own 
personal financial affairs, except when the resident has been restricted 
in this right by law. If a resident requests assistance from the 
facility in managing personal financial affairs the request must be 
documented.
    (3) Privacy. Residents must:
    (i) Be treated with respect, consideration, and dignity;
    (ii) Have access, in reasonable privacy, to a telephone within the 
facility;
    (iii) Be able to send and receive mail unopened and uncensored; and
    (iv) Have privacy of self and possessions.
    (4) Work. No resident will perform household duties, other than 
personal housekeeping tasks, unless the resident receives compensation 
for these duties or is told in advance they are voluntary and the 
patient agrees to do them.
    (5) Freedom of association. Residents have the right to:
    (i) Receive visitors and associate freely with persons and groups of 
their own choosing both within and outside the facility;
    (ii) Make contacts in the community and achieve the highest level of 
independence, autonomy, and interaction in the community of which the 
resident is capable;
    (iii) Leave and return freely to the facility, and
    (iv) Practice the religion of their own choosing or choose to 
abstain from religious practice.
    (6) Transfer. Residents have the right to transfer to another 
facility or to an independent living situation.
    (i) Records. (1) The facility must maintain records on each resident 
in a secure place.
    (2) Facility records must include:
    (i) A copy of the statement of needed care;
    (ii) Emergency notification procedures; and
    (iii) A copy of all signed agreements with the resident.
    (3) Records may only be disclosed with the resident's permission, or 
when required by law.

(Approved by the Office of Management and Budget under control number 
2900-0491)
    (j) Staff requirements. (1) Sufficient, qualified staff must be on 
duty and available to care for the resident and ensure the health and 
safety of each resident.
    (2) The community residential care provider and staff must have the 
following qualifications: Adequate education, training, or experience to 
maintain the facility.
    (k) Cost of community residential care. (1) Payment for the charges 
of community residential care is not the responsibility of the United 
States Government or VA.
    (2) The resident or an authorized personal representative and a 
representative of the community residential care facility must agree 
upon the charge and payment procedures for community residential care.
    (3) The charges for community residential care must be reasonable:
    (i) For residents in a community residential care facility as of 
June 14, 1989, the rates charged for care are pegged to the facility's 
basic rate for care as of July 31, 1987. Increases in the pegged rate 
during any calendar year cannot exceed the annual percentage increase in 
the National Consumer Price Index (CPI) for that year;
    (ii) For community residential care facilities approved after July 
31, 1987, the rates for care shall not exceed 110 percent of the average 
rate for approved facilities in that State as of March 31, 1987. 
Increases in this rate during any calendar year cannot exceed the annual 
percentage increase in the National Consumer Price Index (CPI) for that 
year.
    (iii) The approving official may approve a deviation from the 
requirements of paragraphs (k)(3)(i) through (ii) of this section upon 
request from a community residential care facility representative, a 
resident in the facility, or an applicant for residency, if the 
approving official determines that the cost of care for the resident 
will be greater than the average cost of care for other residents, or if 
the resident

[[Page 633]]

chooses to pay more for the care provided at a facility which exceeds VA 
standards.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989, as amended at 54 FR 22754, May 26, 1989. 
Redesignated at 61 FR 21965, May 13, 1996, as amended at 61 FR 63720, 
Dec. 2, 1996; 69 FR 18803, Apr. 9, 2004]



Sec. 17.64  Exceptions to standards in community residential care 
facilities.

    (a) Facilities which have participated in VA's community residential 
care program prior to (the effective date of these regulations) may 
continue to be approved when the standard for Sec. 17.63(c)(3) and/or 
Sec. 17.63(e)(2) of this part are not met if:
    (1) All standards other than Sec. 17.63(c)(3) and/or Sec. 
17.63(e)(2) of this part are met;
    (2) There is at least one functional toilet, lavatory, and bathing 
or shower facility for every eight people living in the facility, 
including provider and staff;
    (3) The resident's bedrooms measure, exclusive of closet space, at 
least 80 square feet for a single-resident room, or 65 square feet for 
each resident in a multiresident room.
    (b) Community residential care facilities which do not meet the 
requirements for continued approval because they do not comply with 
paragraphs (a)(2) or (a)(3) of this section may apply in writing to the 
Secretary of Veterans Affairs for an exception. The application must 
include a detailed description of the facility, including a description 
of the toilet, lavatory and bathing and shower facilities and/or 
resident's bedroom size, and an analysis of alternative solutions.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.65  Duration of approval.

    (a) Approval may be valid for up to 24 months if VA finds that the 
facility complies with all standards during the current and all previous 
VA inspections and any necessary interim monitoring for a period of two 
years.
    (b) Approval may be valid for up to 15 months if VA finds the 
facility has complied with all standards except the records standard set 
forth in Sec. 17.51j(i) of this part during the current and all 
previous VA inspections and any necessary interim monitoring.
    (c) Approval may be valid for up to 12 months if the VA finds that 
the facility has complied with all standards except the laundry service 
standard set forth in Sec. 17.63(d) and the records standard set forth 
in Sec. 17.63(i) of this part during the current and all previous VA 
inspections and any necessary interim monitoring.
    (d) Approval may be valid for up to 9 months if the VA finds that 
the facility has complied with all standards except the laundry service 
standard set forth in Sec. 17.63(d) of this part; the bedroom standard 
set forth in Sec. 17.63(e) of this part; the activities standard set 
forth in Sec. 17.63(g) of this part; and the records standard set forth 
in Sec. 17.63(i) of this part during the current and all previous VA 
inspections and any necessary interim monitoring.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.66  Notice of noncompliance with VA standards.

    If the hearing official determines that an approved community 
residential care facility does not comply with the standards set forth 
in Sec. 17.63 of this part, the hearing official shall notify the 
community residential care facility in writing of:
    (a) The standards which have not been met;
    (b) The date by which the standards must be met in order to avoid 
revocation of VA approval;
    (c) The community residential care facility's opportunity to request 
an oral or paper hearing under Sec. 17.51n of this part before VA 
approval is revoked; and
    (d) The date by which the hearing official must receive the 
community residential care facility's request for a hearing, which shall 
not be less than 10 calendar days and not more than 20 calendar days 
after the date of VA notice of noncompliance, unless the hearing 
official determines that noncompliance with the standards threatens the 
lives of community residential care

[[Page 634]]

residents in which case the hearing official must receive the community 
residential care facility's request for an oral or paper hearing within 
36 hours of receipt of VA notice.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.67  Request for a hearing.

    The community residential care facility operator must specify in 
writing whether an oral or paper hearing is requested. The request for 
the hearing must be sent to the hearing official. Timely receipt of a 
request for a hearing will stay the revocation of VA approval until the 
hearing official issues a written decision on the community residential 
care facility's compliance with VA standards. The hearing official may 
accept a request for a hearing received after the time limit, if the 
community residential care facility shows that the failure of the 
request to be received by the hearing official's office by the required 
date was due to circumstances beyond its control.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated at 61 FR 21965, May 13, 1996]



Sec. 17.68  Notice and conduct of hearing.

    (a) Upon receipt of a request for an oral hearing, the hearing 
official shall:
    (1) Notify the community residential care facility operator of the 
date, time, and location for the hearing; and
    (2) Notify the community residential care facility operator that 
written statements and other evidence for the record may be submitted to 
the hearing official before the date of the hearing. An oral hearing 
shall be informal. The rules of evidence shall not be followed. 
Witnesses shall testify under oath or affirmation. A recording or 
transcript of every oral hearing shall be made. The hearing official may 
exclude irrelevant, immaterial, or unduly repetitious testimony.
    (b) Upon the receipt of a community residential care facility's 
request for a paper hearing, the hearing official shall notify the 
community residential care facility operator that written statements and 
other evidence must be submitted to the hearing official by a specified 
date in order to be considered as part of the record.
    (c) In all hearings, the community residential care facility 
operator and VA may be represented by counsel.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated at 61 FR 21965, May 13, 1996]



Sec. 17.69  Waiver of opportunity for hearing.

    If representatives of a community residential care facility which 
receive a notice of noncompliance under Sec. 17.66 of this part fail to 
appear at an oral hearing of which they have been notified or fail to 
submit written statements for a paper hearing in accordance with Sec. 
17.68 of this part, unless the hearing official determines that their 
failure was due to circumstances beyond their control, the hearing 
official shall:
    (a) Consider the representatives of the community residential care 
facility to have waived their opportunity for a hearing; and,
    (b) Revoke VA approval of the community residential care facility 
and notify the community residential care facility of this revocation.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.70  Written decision following a hearing.

    (a) The hearing official shall issue a written decision within 20 
days of the completion of the hearing. An oral hearing shall be 
considered completed when the hearing ceases to receive in person 
testimony. A paper hearing shall be considered complete on the date by 
which written statements must be submitted to the hearing official in 
order to be considered as part of the record.
    (b) The hearing official's determination of a community residential 
care facility's noncompliance with VA standards shall be based on the 
preponderance of the evidence.
    (c) The written decision shall include:
    (1) A statement of the facts;

[[Page 635]]

    (2) A determination whether the community residential care facility 
complies with the standards set forth in Sec. 17.63 of this part; and
    (3) A determination of the time period, if any, the community 
residential care facility shall have to remedy any noncompliance with VA 
standards before revocation of VA approval occurs.
    (d) The hearing official's determination of any time period under 
paragraph (c)(3) of this section shall consider the safety and health of 
the residents of the community residential care facility and the length 
of time since the community residential care facility received notice of 
the noncompliance.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.71  Revocation of VA approval.

    (a) If a hearing official determines under Sec. 17.70 of this part 
that a community residential care facility does not comply with the 
standards set forth in Sec. 17.63 of this part and determines that the 
community residential care facility shall not have further time to 
remedy the noncompliance, the hearing official shall revoke approval of 
the community residential care facility and notify the community 
residential care facility of this revocation.
    (b) Upon revocation of VA approval, VA health care personnel shall:
    (1) Cease referring veterans to the community residential care 
facility; and,
    (2) Notify any veteran residing in the community residential care 
facility of the facility's disapproval and request permission to assist 
in the veteran's removal from the facility. If a veteran has a person or 
entity authorized by law to give permission on behalf of the veteran, VA 
health care personnel shall notify that person or entity of the 
community residential care facility's disapproval and request permission 
to assist in removing the veteran from the community residential care 
facility.
    (c) If the hearing official determines that a community residential 
care facility fails to comply with the standards set forth in Sec. 
17.63 of this part and determines that the community residential care 
facility shall have an additional time period to remedy the 
noncompliance, the hearing official shall review at the end of the time 
period the evidence of the community residential care facility's 
compliance with the standards which were to have been met by the end of 
that time period and determine if the community residential care 
facility complies with the standards. If the community residential care 
facility fails to comply with these or any other standards, the 
procedures set forth in Sec. Sec. 17.66-17.71 of this part shall be 
followed.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.72  Availability of information.

    VA standards will be made available to other Federal, State and 
local agencies charged with the responsibility of licensing, or 
otherwise regulating or inspecting community residential care 
facilities.

(Authority: 38 U.S.C. 1730)

[54 FR 20842, May 15, 1989. Redesignated at 61 FR 21965, May 13, 1996]

                Use of Services of Other Federal Agencies



Sec. 17.80  Alcohol and drug dependence or abuse treatment and 
rehabilitation in residential and nonresidential facilities by contract.

    (a) Alcohol and drug dependence or abuse treatment and 
rehabilitation may be authorized by contract in nonresidential 
facilities and in residential facilities provided by halfway houses, 
therapeutic communities, psychiatric residential treatment centers and 
other community-based treatment facilities, when considered to be 
medically advantageous and cost effective for the following:
    (1) Veterans who have been or are being furnished care by 
professional staff over which the Secretary has jurisdiction and such 
transitional care is reasonably necessary to continue treatment;
    (2) Persons in the Armed Forces who, upon discharge therefrom will 
become eligible veterans, when duly referred

[[Page 636]]

with authorization for Department of Veterans Affairs medical center 
hospital care in preparation for treatment and rehabilitation in this 
program under the following limitations:
    (i) Such persons may be accepted by transfer only during the last 30 
days of such person's enlistment or tour of duty,
    (ii) The person requests transfer in writing for treatment for a 
specified period of time during the last 30 days of such person's 
enlistment period or tour of duty,
    (iii) Treatment does not extend beyond the period of time specified 
in the request unless such person requests in writing an extension for a 
further specified period of time and such request is approved by the 
Department of Veterans Affairs Medical Center Director authorizing 
treatment and rehabilitation,
    (iv) Such care and treatment will be provided as if the person were 
a veteran, subject to reimbursement by the respective military service 
for the costs of hospital care and control treatment provided while the 
person is an active duty member.
    (b) The maximum period for one treatment episode is limited to 60 
days. The Department of Veterans Affairs Medical Center Director may 
authorize one 30-day extension.
    (c) Any person who has been discharged or released from active 
military, naval or air service, and who, upon application for treatment 
and rehabilitative services under the authority of this section is 
determined to be legally ineligible for such treatment or rehabilitation 
services shall be:
    (1) Provided referral services to assist the person, to the maximum 
extent possible, in obtaining treatment and rehabilitation services from 
sources outside the Department of Veterans Affairs, not at Department of 
Veterans Affairs expense and,
    (2) If pertinent, advised of the right to apply to the appropriate 
military, naval or air service and the Department of Veterans Affairs 
for review of such person's discharge or release from such service.

(Authority: 38 U.S.C. 1720A)

[47 FR 57706, Dec. 28, 1982. Redesignated at 61 FR 21965, May 13, 1996, 
as amended at 61 FR 56897, Nov. 5, 1996]



Sec. 17.81  Contracts for residential treatment services for veterans 
with alcohol or drug dependence or abuse disabilities.

    (a) Contracts for treatment services authorized under Sec. 17.80(a) 
may be awarded in accordance with applicable Department of Veterans 
Affairs and Federal procurement procedures. Such contracts will be 
awarded only after the quality and effectiveness, including adequate 
protection for the safety of the residents of the contractor's program, 
has been determined and then only to contractors, determined by the 
Under Secretary for Health or designee to meet the following 
requirements.
    (1) Meet fire safety requirements as follows:
    (i) The building must meet the requirements of the applicable 
residential occupancy chapters (1-7, 22-23, and 31) and Appendix A of 
the NFPA 101, National Fire Protection Association's Life Safety Code 
(1994 edition) which are incorporated by reference. Incorporation by 
reference of these materials was approved by the Director of the Federal 
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These 
materials incorporated by reference are available for inspection at the 
Department of Veterans Affairs, Office of Regulations Management (02D), 
Room 1154, 810 Vermont Avenue, NW., Washington, DC 20420 or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. Copies may be obtained from the 
National Fire Protection Association, Battery March Park, Quincy, MA 
02269. (For ordering information, call toll-free 1-800-344-3555.) Any 
equivalencies or variances to Department of Veterans Affairs 
requirements must be approved by the appropriate Veterans Health 
Administration

[[Page 637]]

Veterans Integrated Service Networks (VISN) Director.
    (ii) Where applicable, the home must have a current occupancy permit 
issued by the local and state governments in the jurisdiction where the 
home is located.
    (iii) All Department of Veterans Affairs sponsored residents will be 
mentally and physically capable of leaving the building, unaided, in the 
event of an emergency. Halfway house, therapeutic community and other 
residential program management must agree that all the other residents 
in any building housing veterans will also have such capability.
    (iv) There must be at least one staff member on duty 24 hours a day.
    (v) Fire exit drills must be held at least quarterly. Residents must 
be instructed in evacuation procedures when the primary and/or secondary 
exits are blocked. A written fire plan for evacuation in the event of 
fire shall be developed and reviewed annually. The plan shall outline 
the duties, responsibilities and actions to be taken by the staff and 
residents in the event of a fire emergency. This plan shall be 
implemented during fire exit drills.
    (vi) A written policy regarding tobacco smoking in the facility 
shall be established and enforced.
    (vii) Portable fire extinguishers shall be installed at the 
facility. Use NFPA 10, Portable Fire Extinguishers, as guidance in 
selection and location requirements of extingushers.
    (viii) Requirements for fire protection equipment and systems shall 
be in accordance with NFPA 101. Where installed, maintenance and testing 
of these systems/equipment shall include the following:
    (A) The fire alarm system shall be test operated at least semi-
annually.
    (B) All smoke detectors shall be test operated, by activation of the 
smoke detector, at least semi-annually.
    (C) The monthly and annual inspections and the maintenance of the 
extinguishers shall be in accordance with NFPA 10.
    (D) All fire protection systems and equipment, such as the fire 
alarm system, smoke detectors, and portable extinguishers, shall be 
inspected, tested and maintained in accordance with the applicable NFPA 
fire codes and the results documented.
    (ix) An annual fire and safety inspection shall be conducted at the 
halfway house or residential facility by qualified Department of 
Veterans Affairs personnel. If a review of past Department of Veterans 
Affairs inspections or inspections made by the local authorities 
indicates that a fire and safety inspection would not be necessary, then 
the visit to the facility may be waived.
    (2) Be in compliance with existing standards of State safety codes 
and local, and/or State health and sanitation codes.
    (3) Be licensed under State or local authority.
    (4) Where applicable, be accredited by the State.
    (5) Comply with the requirements of the ``Confidentiality of Alcohol 
and Drug Abuse Patient Records'' (42 CFR part II) and the 
``Confidentiality of Certain Medical Records'' (38 U.S.C. 7332), which 
shall be part of the contract.
    (6) Demonstrate an existing capability to furnish the following:
    (i) A supervised alcohol and drug free environment, including active 
affiliation with Alcoholics Anonymous (AA) programs.
    (ii) Staff sufficient in numbers and position qualifications to 
carry out the policies, responsibilities, and programs of the facility.
    (iii) Board and room.
    (iv) Laundry facilities for residents to do their own laundry.
    (v) Structured activities.
    (vi) Appropriate group activities, including physical activities.
    (vii) Health and personal hygiene maintenance.
    (viii) Monitoring administration of medications.
    (ix) Supportive social service.
    (x) Individual counseling as appropriate.
    (xi) Opportunities for learning/development of skills and habits 
which will enable Department of Veterans Affairs sponsored residents to 
adjust to and maintain freedom from dependence on or involvement with 
alcohol or drug abuse or dependence during or subsequent to leaving the 
facility.

[[Page 638]]

    (xii) Support for the individual desire for sobriety (alcohol/drug 
abuse-free life style).
    (xiii) Opportunities for learning, testing, and internalizing 
knowledge of illness/recovery process, and for upgrading skills and 
improving personal relationships.
    (7) Data normally maintained and included in a medical record as a 
function of compliance with State or community licensing standards will 
be accessible.
    (b) Representatives of the Department of Veterans Affairs will 
inspect the facility prior to award of a contract to assure that 
prescribed requirements can be met. Inspections may also be carried out 
at such other times as deemed necessary by the Department of Veterans 
Affairs.
    (c) All requirements in this rule, and Department of Veterans 
Affairs reports of inspection of residential facilities furnishing 
treatment and rehabilitation services to eligible veterans shall to the 
extent possible, be made available to all government agencies charged 
with the responsibility of licensing or otherwise regulating or 
inspecting such institutions.
    (d) An individual case record will be created for each client which 
shall be maintained in security and confidence as required by the 
``Confidentiality of Alcohol and Drug Abuse Patient Records'' (42 CFR 
part 2) and the ``Confidentiality of Certain Medical Records'' (38 
U.S.C. 7332), and will be made available on a need to know basis to 
appropriate Department of Veterans Affairs staff members involved with 
the treatment program of the veterans concerned.
    (e) Contractors under this section shall provide reports of budget 
and case load experience upon request from a Department of Veterans 
Affairs official.

(Authority: 38 U.S.C. 1720A)

[47 FR 57707, Dec. 28, 1982. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996; 61 FR 63720, Dec. 2, 1996; 69 FR 18803, Apr. 9, 
2004]



Sec. 17.82  Contracts for outpatient services for veterans with alcohol 
or drug dependence or abuse disabilities.

    (a) Contracts for treatment services authorized under Sec. 17.80 
may be awarded in accordance with applicable Department of Veterans 
Affairs and Federal procurement procedures. Such contracts will be 
awarded only after the quality and effectiveness, including adequate 
protection for the safety of the participants of the contractor's 
program, has been determined and then only to contractors determined by 
the Under Secretary for Health or designee to be fully capable of 
meeting the following standards:
    (1) The following minimum fire safety requirements must be met:
    (i) The building must meet the requirements of the applicable 
business occupancy chapters (1-7, 26-27, and 31) and Appendix A of the 
NFPA 101, National Fire Protection Association's Life Safety Code (1994 
edition) which are incorporated by reference. Incorporation by reference 
of these materials was approved by the Director of the Federal Register, 
in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials 
incorporated by reference are available for inspection at the Department 
of Veterans Affairs, Office of Regulations Management (02D), Room 1154, 
810 Vermont Avenue, NW., Washington, DC 20420 or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. Copies may be obtained from the 
National Fire Protection Association, Battery March Park, Quincy, MA 
02269. (For ordering information, call toll-free 1-800-344-3555.) Any 
equivalencies or variances to Department of Veterans Affairs 
requirements must be approved by the appropriate Veterans Health 
Administration Veterans Integrated Service Networks (VISN) Director.
    (ii) Where applicable, the facility must have a current occupancy 
permit issued by the local and state governments in the jurisdiction 
where the home is located.

[[Page 639]]

    (iii) All Department of Veterans Affairs sponsored patients will be 
mentally and physically capable of leaving the building, unaided, in the 
event of an emergency.
    (iv) Fire exit drills must be held at least quarterly. A written 
plan for evacuation in the event of fire shall be developed and reviewed 
annually. The plan shall outline the duties, responsibilities and 
actions to be taken by the staff in the event of a fire emergency. This 
plan shall be implemented during fire exit drills.
    (v) Portable fire extinguishers shall be installed at the facility. 
Use NFPA 10, Portable Fire Extinguishers, as guidance in selection and 
location requirements of extinguishers.
    (vi) Requirements for fire protection equipment and systems shall be 
in accordance with NFPA 101. Where installed, maintenance and testing of 
these systems/equipment shall include the following:
    (A) The fire alarm system shall be test operated at least semi-
annually.
    (B) All smoke detectors shall be test operated, by activation of the 
smoke detector, at least sem-annually.
    (C) The monthly and annual inspections and the maintenance of the 
extinguishers shall be in accordance with NFPA 10.
    (D) All fire protection systems and equipment, such as the fire 
alarm system, smoke detectors, and portable extinguishers, shall be 
inspected, tested and maintained in accordance with the applicable NFPA 
fire codes and the results documented.
    (vii) An annual fire and safety inspection shall be conducted at the 
facility by qualified Department of Veterans Affairs personnel. If a 
review of past Department of Veterans Affairs inspections or inspections 
made by the local authorities indicates that a fire and safety 
inspection would not be necessary, then the visit to the facility may be 
waived.
    (2) Conform to existing standards of State safety codes and local 
and/or State health and sanitation codes.
    (3) Be licensed under State or local authority.
    (4) Where applicable, be accredited by the State.
    (5) Comply with the requirements of the ``Confidentiality of Alcohol 
and Drug Abuse Patient Records'' (42 CFR part 2) and the 
``Confidentiality of Certain Medical Records'' (38 U.S.C. 7332), which 
shall be part of the contract.
    (6) Demonstrate an existing capability to furnish the following:
    (i) A supervised, alcohol and drug free environment, including 
active affiliation with Alcoholics Anonymous (AA) programs.
    (ii) Staff sufficient in numbers and position qualifications to 
carry out the policies, responsibilities, and programs of the facility.
    (iii) Structured activities.
    (iv) Appropriate group activities.
    (v) Monitoring medications.
    (vi) Supportive social service.
    (vii) Individual counseling as appropriate.
    (viii) Opportunities for learning/development of skills and habits 
which will enable Department of Veterans Affairs sponsored residents to 
adjust to and maintain freedom from dependence on or involvement with 
alcohol or drug abuse or dependence during or subsequent to leaving the 
facility.
    (ix) Support for the individual desire for sobriety (alcohol/drug 
abuse-free life style).
    (x) Opportunities for learning, testing, and internalizing knowledge 
of illness/recovery process, and to upgrade skills and improve personal 
relationships.
    (7) Data normally maintained and included in a medical record as a 
function of compliance with State or community licensing standards will 
be accessible.
    (b) Representatives of the Department of Veterans Affairs will 
inspect the facility prior to award of a contract to assure that 
prescribed requirements can be met. Inspections may also be carried out 
at such other times as deemed necessary by the Department of Veterans 
Affairs.
    (c) All requirements in this rule and Department of Veterans Affairs 
reports of inspection of residential facilities furnishing treatment and 
rehabilitation services to eligible veterans shall, to the extent 
possible, be made available to all government agencies

[[Page 640]]

charged with the responsibility of licensing or otherwise regulating or 
inspecting such institutions.
    (d) An individual case record will be created for each client which 
shall be maintained in security and confidence as required by the 
``Confidentiality of Alcohol and Drug Abuse Patient Records'' (42 CFR 
part 2) and the ``Confidentiality of Certain Medical Records'' (38 
U.S.C. 7332), and will be made available on a need to know basis to 
appropriate Department of Veterans Affairs staff members involved with 
the treatment program of the veterans concerned.

(Authority: 38 U.S.C. 1720A)

[47 FR 57708, Dec. 28, 1982. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996; 61 FR 63720, Dec. 2, 1996; 62 FR 17072, Apr. 9, 
1997; 69 FR 18803, Apr. 9, 2004]



Sec. 17.83  Limitations on payment for alcohol and drug dependence 
or abuse treatment and rehabilitation.

    The authority to enter into contracts shall be effective for any 
fiscal year only to such extent or in such amounts as are provided in 
appropriation acts, and payments shall not exceed these amounts.

(Authority: Pub. L. 96-22, 38 U.S.C. 1720A)

[47 FR 57708, Dec. 28, 1982. Redesignated at 61 FR 21965, May 13, 1996]

                        Research-Related Injuries



Sec. 17.85  Treatment of research-related injuries to human subjects.

    (a) VA medical facilities shall provide necessary medical treatment 
to a research subject injured as a result of participation in a research 
project approved by a VA Research and Development Committee and 
conducted under the supervision of one or more VA employees. This 
section does not apply to:
    (1) Treatment for injuries due to noncompliance by a subject with 
study procedures, or
    (2) Research conducted for VA under a contract with an individual or 
a non-VA institution.

    Note to Sec. 17.85(a)(1) and (a)(2): Veterans who are injured as a 
result of participation in such research may be eligible for care from 
VA under other provisions of this part.

    (b) Except in the following situations, care for VA research 
subjects under this section shall be provided in VA medical facilities.
    (1) If VA medical facilities are not capable of furnishing 
economical care or are not capable of furnishing the care or services 
required, VA medical facility directors shall contract for the needed 
care.
    (2) If inpatient care must be provided to a non-veteran under this 
section, VA medical facility directors may contract for such care.
    (3) If a research subject needs treatment in a medical emergency for 
a condition covered by this section, VA medical facility directors shall 
provide reasonable reimbursement for the emergency treatment in a non-VA 
facility.
    (c) For purposes of this section, ``VA employee'' means any person 
appointed by VA as an officer or employee and acting within the scope of 
his or her appointment (VA appoints officers and employees under title 5 
and title 38 of the United States Code).

(Authority: 38 U.S.C. 501, 7303)

[63 FR 11124, Mar. 6, 1998]

 Vocational Training and Health-Care Eligibility Protection for Pension 
                               Recipients



Sec. 17.90  Medical care for veterans receiving vocational training 
under 38 U.S.C. chapter 15.

    Hospital care, nursing home care and medical services may be 
provided to any veteran who is participating in a vocational training 
program under 38 U.S.C. chapter 15.
    (a) For purposes of determining eligibility for this medical 
benefit, the term participating in a vocational training program under 
38 U.S.C. chapter 15 means the same as the term participating in a 
rehabilitation program under 38 U.S.C. chapter 31 as defined in Sec. 
17.47(j). Eligibility for such medical care will continue only while the 
veteran is participating in the vocational training program.
    (b) The term hospital care and medical services means class V dental 
care, priority III medical services, nursing home care and non-VA 
hospital care and/or fee medical/dental care if VA is unable to provide 
the required medical

[[Page 641]]

care economically at VA or other government facilities because of 
geographic inaccessibility or because of the unavailability of the 
required services at VA facilities.

(Authority: 38 U.S.C. 1524, 1525, 1516)

[51 FR 19330, May 29, 1986, as amended at 56 FR 3422, Jan. 30, 1991. 
Redesignated and amended at 61 FR 21965, 21967, May 13, 1996]



Sec. 17.91  Protection of health-care eligibility.

    Any veteran whose entitlement to VA pension is terminated by reason 
of income from work or training shall, subject to paragraphs (a) and (b) 
of this section, retain for 3 years after the termination, the 
eligibility for hospital care, nursing home care and medical services 
(not including dental) which the veteran otherwise would have had if the 
pension had not been terminated as a result of the veteran's receipt of 
earnings from activity performed for remuneration or gain by the veteran 
but only if the veteran's annual income from sources other than such 
earnings would, taken alone, not result in the termination of the 
veteran's pension.
    (a) A veteran who participates in a vocational training program 
under 38 U.S.C. chapter 15 is eligible for the one-time 3 year retention 
of hospital care, nursing home care and medical services benefits at any 
time that the veteran's pension is terminated by reason of income from 
the veteran's employment.
    (b) A veteran who does not participate in a vocational training 
program under 38 U.S.C. chapter 15 is eligible for the one-time 3 year 
retention of hospital care and medical services benefits only if the 
veteran's pension is terminated by reason of income from the veteran's 
employment during the period February 1, 1985 through January 31, 1989.

(Authority: 38 U.S.C. 1524, 1525, 1516)

[51 FR 19330, May 29, 1986. Redesignated at 61 FR 21965, May 13, 1996]

                          Outpatient Treatment



Sec. 17.92  Outpatient care for research purposes.

    Subject to the provisions of Sec. 17.101, any person who is a bona 
fide volunteer may be furnished outpatient treatment when the treatment 
to be rendered is part of an approved Department of Veterans Affairs 
research project and there are insufficient veteran-patients suitable 
for the project.

[35 FR 11470, July 17, 1970. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.93  Eligibility for outpatient services.

    (a) VA shall furnish on an ambulatory or outpatient basis medical 
services as are needed, to the following applicants under the conditions 
stated, except that applications for dental treatment must also meet the 
provisions of Sec. 17.161.


(Authority: 38 U.S.C. 1712)

    (1) For compensation and pension examinations. A compensation and 
pension examination shall be performed for any veteran who is directed 
to have such an examination by VA.(Authority: 38 U.S.C. 111 and 501)

    (2) For adjunct treatment. Subject to the provisions of Sec. Sec. 
17.36 through 17.38, medical services on an ambulatory or outpatient 
basis shall be provided to veteans for an adjunct nonservice-connected 
condition associated with and held to be aggravating a disability from a 
disease or injury adjudicated as being service-connected.
    (b) The term ``shall furnish'' in this section and 38 U.S.C. 1712 
(a)(1) and (a)(2) means that, if the veteran is in immediate need of 
outpatient medical services, VA shall furnish care at the VA facility 
where the veteran applies. If the needed medical services are not 
available there, VA shall arrange for care at the nearest VA medical 
facility or Department of Defense facility (with which VA has a sharing 
agreement) that can provide the needed care. If VA and Department of 
Defense facilities are not available, VA shall arrange for care on a fee 
basis, but only if the veteran is eligible to receive medical services 
in non-VA facilities under Sec. 17.52.

If the veteran is not in immediate need of outpatient medical services, 
VA shall schedule the veteran for care where the veteran applied, if the 
schedule there permits, or refer the veteran

[[Page 642]]

for scheduling to the nearest VA medical center or Department of Defense 
facility (with which VA has a sharing agreement).
    (c) VA may furnish on an ambulatory or outpatient basis medical 
services as needed to the following applicants, except that applications 
for dental treatment must also meet the provisions of Sec. 17.123.
    (1) For veterans participating in a rehabilitation program under 38 
U.S.C. chapter 31. Medical services on an ambulatory or outpatient basis 
may be provided as determined medically necessary for a veteran 
participating in a rehabilitation program under 38 U.S.C. chapter 31 as 
defined in Sec. 17.47(j).
    (2) [Reserved]

(Authority: 38 U.S.C. 1717)

[55 FR 20150, May 15, 1990, as amended at 58 FR 25565, Apr. 27, 1993. 
Redesignated and amended at 61 FR 21965, 21967, May 13, 1996; 64 FR 
54218, Oct. 6, 1999]



Sec. 17.94  Outpatient medical services for military retirees and other 
beneficiaries.

    Outpatient medical services for military retirees and other 
beneficiaries for which charges shall be made as required by Sec. 
17.101, may be authorized for persons properly referred by authorized 
officials of other Federal agencies for which the Secretary of Veterans 
Affairs may agree to render such service under the conditions stipulated 
by the Secretary and pensioners of nations allied with the United States 
in World War I and World War II when duly authorized.

[32 FR 13815, Oct. 4, 1967, as amended at 45 FR 6937, Jan. 31, 1980; 47 
FR 58249, Dec. 30, 1982. Redesignated and amended at 61 FR 21965, 21967, 
May 13, 1996]



Sec. 17.95  Outpatient medical services for Department of Veterans 
Affairs employees and others in emergencies.

    Outpatient medical services for which charges shall be made as 
required by Sec. 17.101 may be authorized for employees of the 
Department of Veterans Affairs, their families, and the general public 
in emergencies, subject to conditions stipulated by the Secretary of 
Veterans Affairs.

(Authority: 38 U.S.C. 1711(c)(1))

[47 FR 58249, Dec. 30, 1982. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.96  Medication prescribed by non-VA physicians.

    (a) General. VA may not furnish a veteran with medication prescribed 
by a duly licensed physician who is not an employee of the VA or is not 
providing care to the veteran under a contract with the VA, except as 
provided in paragraphs (b) through (i) of this section.
    (b) Medication furnished prior to an initial primary care 
appointment. Beginning on September 22, 2003, VA may furnish medication 
prescribed by a non-VA physician for a veteran enrolled under Sec. 
17.36 of this part prior to July 25, 2003, who had prior to July 25, 
2003, requested an initial appointment for primary care in a VA health 
care facility, and the next available appointment date was more than 30 
days from the date of the request.
    (c) Quantity of medication. VA may furnish a quantity of medication 
under paragraph (b) of this section that is sufficient to appropriately 
meet the treatment needs of the veteran until the date of the veteran's 
initial appointment for primary care in a VA health care facility.
    (d) Appointment cancellation. If VA reschedules a veteran eligible 
under paragraph (b) for an initial appointment for primary care in a VA 
health care facility, or if such a veteran reschedules the appointment 
for good cause, as determined by the local VA treatment facility, VA may 
furnish the eligible veteran with a quantity of medication under 
paragraph (b) of this section that is sufficient to appropriately meet 
the treatment needs of the veteran until the date of the veteran's 
rescheduled appointment for primary care in a VA health care facility.
    (e) Written prescription and information requirements. VA may 
furnish medication under paragraph (b) of this section only if the 
veteran provides VA with a written prescription for the medication 
signed by a duly licensed physician within the previous 90 days.

[[Page 643]]

    (1) The veteran must furnish the following information:
    (i) Name;
    (ii) Date of Birth;
    (iii) Social Security Number;
    (iv) Home address;
    (v) Phone number (with area code);
    (vi) Name of Health Insurance Company and Health Insurance Policy 
Number;
    (vii) List of any allergies;
    (viii) History of any adverse reaction to any medication;
    (ix) List of current medications, including over-the-counter 
medications or herbal supplements; and
    (x) Indication of whether the VA pharmacist may call a non-VA 
physician for information regarding medications.
    (2) The non-VA physician must furnish the following information:
    (i) Name;
    (ii) Group practice name;
    (iii) Social Security Number or Tax ID number;
    (iv) License Number;
    (v) Office address;
    (vi) Phone number and fax number; and
    (vii) E-mail address.
    (f) Medications that may be furnished. VA may furnish medication 
under paragraph (b) of this section only if the medication:
    (1) Must be dispensed by prescription;
    (2) Is not an over-the-counter medication;
    (3) Is not listed as a controlled substance under schedule I through 
V of the Comprehensive Drug Abuse Prevention and Control Act, 21 U.S.C. 
812;
    (4) Is included on VA's National Formulary, unless VA determines a 
non-Formulary medication is medically necessary; and
    (5) Is not an acute medication, an intravenous medication nor one 
required to be administered only by a medical professional.
    (g) Copayments. Copayment provisions in Sec. 17.110 of this part 
apply to medication furnished under paragraph (b) of this section.
    (h) Mailing of Medications. VA may furnish medication under 
paragraph (b) of this section only by having the medication mailed to 
the veteran.
    (i) Medications for veterans receiving increased compensation or 
pension. Any prescription, which is not part of authorized Department of 
Veterans Affairs hospital or outpatient care, for drugs and medicines 
ordered by a private or non-Department of Veterans Affairs doctor of 
medicine or doctor of osteopathy duly licensed to practice in the 
jurisdiction where the prescription is written, shall be filled by a 
Department of Veterans Affairs pharmacy or a non-VA pharmacy in a state 
home under contract with VA for filling prescriptions for patients in 
state homes, provided:
    (1) The prescription is for:
    (i) A veteran who by reason of being permanently housebound or in 
need of regular aid and attendance is in receipt of increased 
compensation under 38 U.S.C. chapter 11, or increased pension under 
section 3.1(u) (Section 306 Pension) or section 3.1(w) (Improved 
Pension), of this title, as a veteran of the Mexican Border Period, 
World War I, World War II, the Korean Conflict, or the Vietnam Era (or, 
although eligible for such pension, is in receipt of compensation as the 
greater benefit), or
    (ii) A veteran in need of regular aid and attendance who was 
formerly in receipt of increased pension as described in paragraph 
(a)(1) of this section whose pension has been discontinued solely by 
reason of excess income, but only so long as such veteran's annual 
income does not exceed the maximum annual income limitation by more than 
$ 1,000, and
    (2) The drugs and medicines are prescribed as specific therapy in 
the treatment of any of the veteran's illnesses or injuries.

(Authority: 38 U.S.C. 1706, 1710, 17.12(d))

[68 FR 43929, July 25, 2003]



Sec. 17.97  Prescriptions in Alaska, and territories and possessions.

    In Alaska and territories and possessions, where there are no 
Department of Veterans Affairs pharmacies, the expenses of any 
prescriptions filled by a private pharmacist which otherwise could have 
been filled by a Department

[[Page 644]]

of Veterans Affairs pharmacy under 38 U.S.C. 1712(h), may be reimbursed.

[32 FR 13816, Oct. 4, 1967. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]



Sec. 17.98  Mental health services.

    (a) Following the death of a veteran, bereavement counseling 
involving services defined in 38 U.S.C. 1701(6)(B), may be furnished to 
persons who were receiving mental health services in connection with 
treatment of the veteran under 38 U.S.C. 1710, 1712, 1712A, 1713, or 
1717, or 38 CFR 17.84 of this part, prior to the veteran's death, but 
may only be furnished in instances where the veteran's death had been 
unexpected or occurred while the veteran was participating in a VA 
hospice or similar program. Bereavement counseling may be provided only 
to assist individuals with the emotional and psychological stress 
accompanying the veteran's death, and only for a limited period of time, 
as determined by the Medical Center Director, but not to exceed 60 days. 
The Medical Center Director may approve a longer period of time when 
medically indicated.
    (b) For purposes of paragraph (a) of this section, an unexpected 
death is one which occurs when in the course of an illness the provider 
of care did not or could not have anticipated the timing of the death. 
Ordinarily, the provider of care can anticipate the patient's death and 
can inform the patient and family of the immediacy and certainty of 
death. If that has not taken place, a death can be described as 
unexpected.

(Authority: 38 U.S.C. 1701(6)(B))

[53 FR 7186, Mar. 7, 1988. Redesignated and amended at 61 FR 21965, 
21967, May 13, 1996]

                          Breaking Appointments



Sec. 17.100  Refusal of treatment by unnecessarily breaking appointments.

    A patient under medical treatment who breaks an appointment without 
a reasonable excuse will be informed that breaking an additional 
appointment will be deemed to be a refusal to accept VA treatment. If 
such a patient fails to keep a second appointment, without at least 24 
hours notice, such action will be deemed as a refusal to accept VA 
treatment. Thereafter, no further treatment will be furnished until the 
veteran has agreed to cooperate by keeping appointments. Treatment will 
not be discontinued until the treating physician has reviewed the 
treatment files, concurred in the action and signed a statement to this 
effect in the record. Consideration will be given to the veteran's 
ability to make a rational decision concerning the need for medical care 
and/or examination. The veteran will be advised of the final decision. 
Nothing in this section will be construed to prevent treatment for an 
emergent condition that may arise during or subsequent to this action. 
Where an appointment is broken without notice and satisfactory reasons 
are advanced for breaking the appointment and circumstances were such 
that notice could not be given, the patient will not be deemed to have 
refused treatment.

(Authority: 38 U.S.C. 7304)

[51 FR 8672, Mar. 13, 1986. Redesignated at 61 FR 21965, May 13, 1996; 
64 FR 54218, Oct. 6, 1999]

                    Charges, Waivers, and Collections



Sec. 17.101  Collection or recovery by VA for medical care or services 
provided or furnished to a veteran for a nonservice-connected disability.

    (a)(1) General. This section covers collection or recovery by VA, 
under 38 U.S.C. 1729, for medical care or services provided or furnished 
to a veteran:
    (i) For a nonservice-connected disability for which the veteran is 
entitled to care (or the payment of expenses of care) under a health 
plan contract;
    (ii) For a nonservice-connected disability incurred incident to the 
veteran's employment and covered under a worker's compensation law or 
plan that provides reimbursement or indemnification for such care and 
services; or
    (iii) For a nonservice-connected disability incurred as a result of 
a motor vehicle accident in a State that requires automobile accident 
reparations insurance.
    (2) Methodologies. Based on the methodologies set forth in this 
section, the charges billed will include the following types of charges, 
as appropriate:

[[Page 645]]

Acute inpatient facility charges; skilled nursing facility/sub-acute 
inpatient facility charges; partial hospitalization facility charges; 
outpatient facility charges; physician and other professional charges, 
including professional charges for anesthesia services and dental 
services; pathology and laboratory charges; observation care facility 
charges; ambulance and other emergency transportation charges; and 
charges for durable medical equipment, drugs, injectables, and other 
medical services, items, and supplies identified by HCPCS Level II 
codes. In addition, the charges billed for prescription drugs not 
administered during treatment will be based on VA costs in accordance 
with the methodology set forth in Sec. 17.102. Data for calculating 
actual charge amounts based on the methodologies set forth in this 
section will either be published in a notice in the Federal Register or 
will be posted on the Internet site of the Veterans Health 
Administration Chief Business Office, currently at http://www.va.gov/
cbo, under ``Charge Data.'' For care for which VA has established a 
charge, VA will bill using its most recent published or posted charge. 
For care for which VA has not established a charge, VA will bill 
according to the methodology set forth in paragraph (a)(8) of this 
section.
    (3) Data sources. In this section, data sources are identified by 
name. The specific editions of these data sources used to calculate 
actual charge amounts, and information on where these data sources may 
be obtained, will be presented along with the data for calculating 
actual charge amounts, either in notices in the Federal Register or on 
the Internet site of the Veterans Health Administration Chief Business 
Office, currently at http://www.va.gov/cbo, under ``Charge Data.''
    (4) Amount of recovery or collection--third party liability. A 
third-party payer liable under a health plan contract has the option of 
paying either the billed charges described in this section or the amount 
the health plan demonstrates is the amount it would pay for care or 
services furnished by providers other than entities of the United States 
for the same care or services in the same geographic area. If the amount 
submitted by the health plan for payment is less than the amount billed, 
VA will accept the submission as payment, subject to verification at 
VA's discretion in accordance with this section. A VA employee having 
responsibility for collection of such charges may request that the third 
party health plan submit evidence or information to substantiate the 
appropriateness of the payment amount (e.g., health plan or insurance 
policies, provider agreements, medical evidence, proof of payment to 
other providers in the same geographic area for the same care and 
services VA provided).
    (5) Definitions. For purposes of this section:
    APC means Medicare Ambulatory Payment Classification.
    CMS means the Centers for Medicare and Medicaid Services.
    CPI-U means Consumer Price Index--All Urban Consumers.
    CPT code and CPT procedure code mean Current Procedural Terminology 
code, a five-digit identifier defined by the American Medical 
Association for a specified physician service or procedure.
    DME means Durable Medical Equipment.
    DRG means Diagnosis Related Group.
    Geographic area means a three-digit ZIP Code area, where three-digit 
ZIP Codes are the first three digits of standard U.S. Postal Service ZIP 
Codes.
    HCPCS code means a Healthcare Common Procedure Coding System Level 
II identifier, consisting of a letter followed by four digits, defined 
by CMS for a specified physician service, procedure, test, supply, or 
other medical service.
    ICU means Intensive Care Unit, including coronary care units.
    MDR means Medical Data Research, a medical charge database published 
by Ingenix, Inc.
    MedPAR means the Medicare Provider Analysis and Review file.
    Non-provider-based means a VA health care entity (such as a small VA 
community-based outpatient clinic) that functions as the equivalent of a 
doctor's office or for other reasons does not meet CMS provider-based 
criteria,

[[Page 646]]

and, therefore, is not entitled to bill outpatient facility charges.
    Provider-based means the outpatient department of a VA hospital or 
any other VA health care entity that meets CMS provider-based criteria. 
Provider-based entities are entitled to bill outpatient facility 
charges.
    RBRVS means Resource-Based Relative Value Scale.
    RVU means Relative Value Unit.
    Unlisted procedures mean procedures, services, items, and supplies 
that have not been defined or specified by the American Medical 
Association or CMS, and the CPT and HCPCS codes used to report such 
procedures, services, items, and supplies.
    (6) Provider-based and non-provider-based entities and charges. Each 
VA health care entity (medical center, hospital, community-based 
outpatient clinic, independent outpatient clinic, etc.) is designated as 
either provider-based or non-provider-based. Provider-based entities are 
entitled to bill outpatient facility charges; non-provider-based 
entities are not. The charges for physician and other professional 
services provided at non-provider-based entities will be billed as 
professional charges only. Professional charges for both provider-based 
entities and non-provider-based entities are produced by the 
methodologies set forth in this section, with professional charges for 
provider-based entities based on facility practice expense RVUs, and 
professional charges for non-provider-based entities based on non-
facility practice expense RVUs.
    (7) Charges for medical care or services provided by non-VA 
providers at VA expense. When medical care or services are furnished at 
the expense of the VA by non-VA providers, the charges billed for such 
care or services will be the higher of the charges determined according 
to this section, or the amount VA paid to the non-VA provider.
    (8) Charges for medical care or services for which VA does not have 
an established charge. When medical care or services are provided or 
furnished at VA expense by either VA or non-VA providers, and VA does 
not have an established charge for such care or services, then the 
charges billed for such care or services will be according to the first 
of the following subparagraphs that applies:
    (i) In the event that a new identifier (DRG, CPT code, or HCPCS 
code) is assigned to a particular type or item of medical care or 
service, then until such time as VA establishes a charge for the new 
identifier, VA's charge for such care or service will be VA's most 
recent established charge for the identifier previously assigned to that 
type or item of medical care or service; otherwise,
    (ii) In the event that the medical care or service is provided or 
furnished at VA expense by a non-VA provider, then VA's charge for such 
care or service will be the amount VA paid to the non-VA provider; 
otherwise,
    (iii) VA's charges for prosthetic devices and durable medical 
equipment will be VA's actual cost; otherwise,
    (iv) If a Medicare allowed charge amount can be determined for the 
care or service, then VA's charge will be the Medicare participating 
provider allowed charge amount geographically adjusted using the 
applicable geographic area adjustment factors determined pursuant to 
this section; otherwise,
    (v) If a charge cannot be established under paragraphs (a)(8)(i) 
through (iv) of this section, then VA will not charge for the care or 
service under this section.
    (b) Acute inpatient facility charges. When VA provides or furnishes 
acute inpatient services within the scope of care referred to in 
paragraph (a)(1) of this section, acute inpatient facility charges 
billed for such services will be determined in accordance with the 
provisions of this paragraph. Acute inpatient facility charges consist 
of per diem charges for room and board and for ancillary services that 
vary by geographic area and by DRG. These charges are calculated as 
follows:
    (1) Formula. For each acute inpatient stay, or portion thereof, for 
which a particular DRG assignment applies, the total acute inpatient 
facility charge is the sum of the applicable charges determined pursuant 
to paragraphs (b)(1)(i), (ii), and (iii) of this section. For purposes 
of this section, standard room and board days and ICU room and board 
days are mutually exclusive: VA

[[Page 647]]

will bill either a standard room and board per diem charge or an ICU 
room and board per diem charge, as applicable, for each day of a given 
acute inpatient stay.
    (i) Standard room and board charges. Multiply the nationwide 
standard room and board per diem charge determined pursuant to paragraph 
(b)(2) of this section by the appropriate geographic area adjustment 
factor determined pursuant to paragraph (b)(3) of this section. The 
result constitutes the area-specific standard room and board per diem 
charge. Multiply this amount by the number of days for which standard 
room and board charges apply to obtain the total acute inpatient 
facility standard room and board charge.
    (ii) ICU room and board charges. Multiply the nationwide ICU room 
and board per diem charge determined pursuant to paragraph (b)(2) of 
this section by the appropriate geographic area adjustment factor 
determined pursuant to paragraph (b)(3) of this section. The result 
constitutes the area-specific ICU room and board per diem charge. 
Multiply this amount by the number of days for which ICU room and board 
per diem charges apply to obtain the total acute inpatient facility ICU 
room and board charge.
    (iii) Ancillary charges. Multiply the nationwide ancillary per diem 
charge determined pursuant to paragraph (b)(2) of this section by the 
appropriate geographic area adjustment factor determined pursuant to 
paragraph (b)(3) of this section. The result constitutes the area-
specific ancillary per diem charge. Multiply this amount by the number 
of days of acute inpatient care to obtain the total acute inpatient 
facility ancillary charge.
    Note to paragraph (b)(1): If there is a change in a patient's 
condition and/or treatment during a single acute inpatient stay such 
that the DRG assignment changes (for example, a psychiatric patient who 
develops a medical or surgical problem), then calculations of acute 
inpatient facility charges will be made separately for each DRG, 
according to the number of days of care applicable for each DRG, and the 
total acute inpatient facility charge will be the sum of the total acute 
inpatient facility charges for the different DRGs.
    (2) Per diem charges. To establish a baseline, two nationwide 
average per diem amounts for each DRG are calculated, one from the 
MedPAR file and one from the MedStat claims database, a database of 
nationwide commercial insurance claims. Average per diem charges are 
calculated based on all available charges, except for care reported for 
emergency room, ambulance, professional, and observation care. These two 
data sources may report charges for two differing periods of time; when 
this occurs, the data source charges with the earlier center date are 
trended forward to the center date of the other data source, based on 
changes to the inpatient hospital services component of the CPI-U. 
Results obtained from these two data sources are then combined into a 
single weighted average per diem charge for each DRG. The resulting 
charge for each DRG is then separated into its two components, a room 
and board component and an ancillary component, with the per diem charge 
for each component calculated by multiplying the weighted average per 
diem charge by the corresponding percentage determined pursuant to 
paragraph (b)(2)(i) of this section. The room and board per diem charge 
is further differentiated into a standard room and board per diem charge 
and an ICU room and board per diem charge by multiplying the average 
room and board charge by the corresponding DRG-specific ratios 
determined pursuant to paragraph (b)(2)(ii) of this section. The 
resulting per diem charges for standard room and board, ICU room and 
board, and ancillary services for each DRG are then each multiplied by 
the final ratio determined pursuant to paragraph (b)(2)(iii) of this 
section to reflect the nationwide 80th percentile charges. Finally, the 
resulting amounts are each trended forward from the center date of the 
trended data sources to the effective time period for the charges, as 
set forth in paragraph (b)(2)(iv) of this section. The results 
constitute the nationwide 80th percentile standard room and board, ICU 
room and board, and ancillary per diem charges.

[[Page 648]]

    (i) Room and board charge and ancillary charge component 
percentages. Using only those cases from the MedPAR file for which a 
distinction between room and board charges and ancillary charges can be 
determined, the percentage of the total charges for room and board 
compared to the combined total charges for room and board and ancillary 
services, and the percentage of the total charges for ancillary services 
compared to the combined total charges for room and board and ancillary 
services, are calculated by DRG.
    (ii) Standard room and board per diem charge and ICU room and board 
per diem charge ratios. Using only those cases from the MedPAR file for 
which a distinction between room and board and ancillary charges can be 
determined, overall average per diem room and board charges are 
calculated by DRG. Then, using the same cases, an average standard room 
and board per diem charge is calculated by dividing total non-ICU room 
and board charges by total non-ICU room and board days. Similarly, an 
average ICU room and board per diem charge is calculated by dividing 
total ICU room and board charges by total ICU room and board days. 
Finally, ratios of standard room and board per diem charges to average 
overall room and board per diem charges are calculated by DRG, as are 
ratios of ICU room and board per diem charges to average overall room 
and board per diem charges.
    (iii) 80th percentile. Using cases from the MedPAR file with 
separately identifiable semi-private room rates, the ratio of the day-
weighted 80th percentile semi-private room and board per diem charge to 
the average semi-private room and board per diem charge is obtained for 
each geographic area. The geographic area-based ratios are averaged to 
obtain a final 80th percentile ratio.
    (iv) Trending forward. 80th percentile charges for each DRG, 
obtained as described in paragraph (b)(2) of this section, are trended 
forward based on changes to the inpatient hospital services component of 
the CPI-U. Actual CPI-U changes are used from the center date of the 
trended data sources through the latest available month as of the time 
the calculations are performed. The three-month average annual trend 
rate as of the latest available month is then held constant to the 
midpoint of the calendar year in which the charges are primarily 
expected to be used. The projected total CPI-U change so obtained is 
then applied to the 80th percentile charges.
    (3) Geographic area adjustment factors. For each geographic area, 
the average per diem room and board charges and ancillary charges from 
the MedPAR file are calculated for each DRG. The DRGs are separated into 
two groups, surgical and non-surgical. For each of these groups of DRGs, 
for each geographic area, average room and board per diem charges and 
ancillary per diem charges are calculated, weighted by nationwide VA 
discharges and by average lengths of stay from the combined MedPAR file 
and MedStat claims database. This results in four average per diem 
charges for each geographic area: room and board for surgical DRGs, 
ancillary for surgical DRGs, room and board for non-surgical DRGs, and 
ancillary for non-surgical DRGs. Four corresponding national average per 
diem charges are obtained from the MedPAR file, weighted by nationwide 
VA discharges and by average lengths of stay from the combined MedPAR 
file and MedStat claims database. Four geographic area adjustment 
factors are then calculated for each geographic area by dividing each 
geographic area average per diem charge by the corresponding national 
average per diem charge.
    (c) Skilled nursing facility/sub-acute inpatient facility charges. 
When VA provides or furnishes skilled nursing/sub-acute inpatient 
services within the scope of care referred to in paragraph (a)(1) of 
this section, skilled nursing facility/sub-acute inpatient facility 
charges billed for such services will be determined in accordance with 
the provisions of this paragraph. The skilled nursing facility/sub-acute 
inpatient facility charges are per diem charges that vary by geographic 
area. The facility charges cover care, including room and board, nursing 
care, pharmaceuticals, supplies, and skilled rehabilitation services 
(e.g., physical therapy, inhalation therapy, occupational

[[Page 649]]

therapy, and speech-language pathology), that is provided in a nursing 
home or hospital inpatient setting, is provided under a physician's 
orders, and is performed by or under the general supervision of 
professional personnel such as registered nurses, licensed practical 
nurses, physical therapists, occupational therapists, speech-language 
pathologists, and audiologists. These charges are calculated as follows:
    (1) Formula. For each stay, multiply the nationwide per diem charge 
determined pursuant to paragraph (c)(2) of this section by the 
appropriate geographic area adjustment factor determined pursuant to 
paragraph (c)(3) of this section. The result constitutes the area-
specific per diem charge. Finally, multiply the area-specific per diem 
charge by the number of days of care to obtain the total skilled nursing 
facility/sub-acute inpatient facility charge.
    (2) Per diem charge. To establish a baseline, a nationwide average 
per diem billed charge is calculated based on charges reported in the 
MedPAR skilled nursing facility file. For this purpose, the following 
MedPAR charge categories are included: room and board (private, semi-
private, and ward), physical therapy, occupational therapy, inhalation 
therapy, speech-language pathology, pharmacy, medical/surgical supplies, 
and ``other'' services. The following MedPAR charge categories are 
excluded from the calculation of the per diem charge and will be billed 
separately, using the charges determined as set forth in other 
applicable paragraphs of this section, when these services are provided 
to skilled nursing patients or sub-acute inpatients: ICU and CCU room 
and board, laboratory, radiology, cardiology, dialysis, operating room, 
blood and blood administration, ambulance, MRI, anesthesia, durable 
medical equipment, emergency room, clinic, outpatient, professional, 
lithotripsy, and organ acquisition services. The resulting average per 
diem billed charge is then multiplied by the 80th percentile adjustment 
factor determined pursuant to paragraph (c)(2)(i) of this section to 
obtain a nationwide 80th percentile charge level. Finally, the resulting 
amount is trended forward to the effective time period for the charges, 
as set forth in paragraph (c)(2)(ii) of this section.
    (i) 80th percentile adjustment factor. Using the MedPAR skilled 
nursing facility file, the ratio of the day-weighted 80th percentile 
room and board per diem charge to the day-weighted average room and 
board per diem charge is obtained for each geographic area. The 
geographic area-based ratios are averaged to obtain the 80th percentile 
adjustment factor.
    (ii) Trending forward. The 80th percentile charge is trended forward 
based on changes to the inpatient hospital services component of the 
CPI-U. Actual CPI-U changes are used from the time period of the source 
data through the latest available month as of the time the calculations 
are performed. The three-month average annual trend rate as of the 
latest available month is then held constant to the midpoint of the 
calendar year in which the charges are primarily expected to be used. 
The projected total CPI-U change so obtained is then applied to the 80th 
percentile charge.
    (3) Geographic area adjustment factors. The average billed per diem 
charge for each geographic area is calculated from the MedPAR skilled 
nursing facility file. This amount is divided by the nationwide average 
billed charge calculated in paragraph (c)(2) of this section. The 
geographic area adjustment factor for charges for each VA facility is 
the ratio for the geographic area in which the facility is located.
    (d) Partial hospitalization facility charges. When VA provides or 
furnishes partial hospitalization services that are within the scope of 
care referred to in paragraph (a)(1) of this section, the facility 
charges billed for such services will be determined in accordance with 
the provisions of this paragraph. Partial hospitalization facility 
charges are per diem charges that vary by geographic area. These charges 
are calculated as follows:
    (1) Formula. For each partial hospitalization stay, multiply the 
nationwide per diem charge determined pursuant to paragraph (d)(2) of 
this section by the appropriate geographic area adjustment factor 
determined pursuant to paragraph (d)(3) of this section. The

[[Page 650]]

result constitutes the area-specific per diem charge. Finally, multiply 
the area-specific per diem charge by the number of days of care to 
obtain the total partial hospitalization facility charge.
    (2) Per diem charge. To establish a baseline, a nationwide median 
per diem billed charge is calculated based on charges associated with 
partial hospitalization from the outpatient facility component of the 
Medicare Standard Analytical File 5 percent Sample. That median per diem 
billed charge is then multiplied by the 80th percentile adjustment 
factor determined pursuant to paragraph (d)(2)(i) of this section to 
obtain a nationwide 80th percentile charge level. Finally, the resulting 
amount is trended forward to the effective time period for the charges, 
as set forth in paragraph (d)(2)(ii) of this section.
    (i) 80th percentile adjustment factor. The 80th percentile 
adjustment factor for partial hospitalization facility charges is the 
same as that computed for skilled nursing facility/sub-acute inpatient 
facility charges under paragraph (c)(2)(i) of this section.
    (ii) Trending forward. The 80th percentile charge is trended forward 
based on changes to the outpatient hospital services component of the 
CPI-U. Actual CPI-U changes are used from the time period of the source 
data through the latest available month as of the time the calculations 
are performed. The three-month average annual trend rate as of the 
latest available month is then held constant to the midpoint of the 
calendar year in which the charges are primarily expected to be used. 
The projected total CPI-U change so obtained is then applied to the 80th 
percentile charges, as described in paragraph (d)(2) of this section.
    (3) Geographic area adjustment factors. The geographic area 
adjustment factors for partial hospitalization facility charges are the 
same as those computed for outpatient facility charges under paragraph 
(e)(4) of this section.
    (e) Outpatient facility charges. When VA provides or furnishes 
outpatient facility services that are within the scope of care referred 
to in paragraph (a)(1) of this section, the charges billed for such 
services will be determined in accordance with the provisions of this 
paragraph. Charges for outpatient facility services vary by geographic 
area and by CPT/HCPCS code. These charges apply in the situations set 
forth in paragraph (e)(1) of this section and are calculated as set 
forth in paragraph (e)(2) of this section.
    (1) Settings and circumstances in which outpatient facility charges 
apply. Outpatient facility charges consist of facility charges for 
procedures, diagnostic tests, evaluation and management services, and 
other medical services, items, and supplies provided in the following 
settings and circumstances:
    (i) Outpatient departments and clinics at VA medical centers;
    (ii) Other VA provider-based entities; and
    (iii) VA non-provider-based entities, for procedures and tests for 
which no corresponding professional charge is established under the 
provisions of paragraph (f) of this section.
    (2) Formula. For each outpatient facility charge CPT/HCPCS code, 
multiply the nationwide 80th percentile charge determined pursuant to 
paragraph (e)(3) of this section by the appropriate geographic area 
adjustment factor determined pursuant to paragraph (e)(4) of this 
section. The result constitutes the area-specific outpatient facility 
charge. When multiple surgical procedures are performed during the same 
outpatient encounter by a provider or provider team, the outpatient 
facility charges for such procedures will be reduced as set forth in 
paragraph (e)(5) of this section.
    (3) Nationwide 80th percentile charges by CPT/HCPCS code. For each 
CPT/HCPCS code for which outpatient facility charges apply, the 
nationwide 80th percentile charge is calculated as set forth in either 
paragraph (e)(3)(i) or (e)(3)(ii) of this section. The resulting amount 
is trended forward to the effective time period for the charges, as set 
forth in paragraph (e)(3)(iii) of this section. The results constitute 
the nationwide 80th percentile outpatient facility charges by CPT/HCPCS 
code.
    (i) Nationwide 80th percentile charges for CPT/HCPCS codes which 
have APC assignments. Using the outpatient facility charges reported in 
the outpatient facility component of the Medicare

[[Page 651]]

Standard Analytical File 5 percent Sample, claim records are selected 
for which all charges can be assigned to an APC. Using this subset of 
the 5 percent Sample data, nationwide median charge to Medicare APC 
payment amount ratios, by APC, and nationwide 80th percentile to median 
charge ratios, by APC, are computed according to the methodology set 
forth in paragraphs (e)(3)(i)(A) and (e)(3)(i)(B) of this section, 
respectively. The product of these two ratios by APC is then computed, 
resulting in a composite nationwide 80th percentile charge to Medicare 
APC payment amount ratio. This ratio is then compared to the alternate 
nationwide 80th percentile charge to Medicare APC payment amount ratio 
computed in paragraph (e)(3)(i)(C) of this section, and the lesser 
amount is selected and multiplied by the current Medicare APC payment 
amount. The resulting product is the APC-specific nationwide 80th 
percentile charge amount for each applicable CPT/HCPCS code.
    (A) Nationwide median charge to Medicare APC payment amount ratios. 
For each CPT/HCPCS code, the ratio of median billed charge to Medicare 
APC payment amount is determined. The weighted average of these ratios 
for each APC is then obtained, using the reported 5 percent Sample 
frequencies as weights. In addition, corresponding ratios are calculated 
for each of the APC categories set forth in paragraph (e)(3)(i)(D) of 
this section, again using the reported 5 percent Sample frequencies as 
weights. For APCs where the 5 percent Sample frequencies provide a 
statistically credible result, the APC-specific weighted average 
nationwide median charge to Medicare APC payment amount ratio so 
obtained is accepted without further adjustment. However, if the 5 
percent Sample data do not produce statistically credible results for 
any specific APC, then the APC category-specific ratio is applied for 
that APC.
    (B) Nationwide 80th percentile to median charge ratios. For each 
CPT/HCPCS code, a geographically normalized nationwide 80th percentile 
billed charge amount is divided by a similarly normalized nationwide 
median billed charge amount. The weighted average of these ratios for 
each APC is then obtained, using the reported 5 percent Sample 
frequencies as weights. In addition, corresponding ratios are calculated 
for each of the APC categories set forth in paragraph (e)(3)(i)(D) of 
this section, again using the reported 5 percent Sample frequencies as 
weights. For APCs where the 5 percent Sample frequencies provide a 
statistically credible result, the APC-specific weighted average 
nationwide 80th percentile to median charge ratio so obtained is 
accepted without further adjustment. However, if the 5 percent Sample 
data do not produce statistically credible results for any specific APC, 
then the APC category-specific ratio is applied for that APC.
    (C) Alternate nationwide 80th percentile charge to Medicare APC 
payment amount ratios. A minimum 80th percentile charge to Medicare APC 
payment amount ratio is set at 2.0 for APCs with Medicare APC payment 
amounts of $25 or less. A maximum 80th percentile charge to Medicare APC 
payment amount ratio is set at 6.5 for APCs with Medicare APC payment 
amounts of $10,000 or more. Using linear interpolation with these 
endpoints, the alternate APC-specific nationwide 80th percentile charge 
to Medicare APC payment amount ratio is then computed, based on the 
Medicare APC payment amount.
    (D) APC categories for the purpose of establishing 80th percentile 
to median factors. For the purpose of the statistical methodology set 
forth in paragraph (e)(3)(i) of this section, APCs are assigned to the 
following APC categories:
    (1) Radiology.
    (2) Drugs.
    (3) Office, Home, and Urgent Care Visits.
    (4) Cardiovascular.
    (5) Emergency Room Visits.
    (6) Outpatient Psychiatry, Alcohol and Drug Abuse.
    (7) Pathology.
    (8) Surgery.
    (9) Allergy Immunotherapy, Allergy Testing, Immunizations, and 
Therapeutic Injections.
    (10) All APCs not assigned to any of the above groups.
    (ii) Nationwide 80th percentile charges for CPT/HCPCS codes which do 
not have

[[Page 652]]

APC assignments. Nationwide 80th percentile billed charge levels by CPT/
HCPCS code are computed from the outpatient facility component of the 
MDR database, from the MedStat claims database, and from the outpatient 
facility component of the Medicare Standard Analytical File 5 percent 
Sample. If the MDR database contains sufficient data to provide a 
statistically credible 80th percentile charge, then that result is 
retained for this purpose. If the MDR database does not provide a 
statistically credible 80th percentile charge, then the result from the 
MedStat database is retained for this purpose, provided it is 
statistically credible. If neither the MDR nor the MedStat databases 
provide statistically credible results, then the nationwide 80th 
percentile billed charge computed from the 5 percent Sample data is 
retained for this purpose. The nationwide 80th percentile charges 
retained from each of these data sources are trended forward to the 
effective time period for the charges, as set forth in paragraph 
(e)(3)(iii) of this section.
    (iii) Trending forward. The charges for each CPT/HCPCS code, 
obtained as described in paragraph (e)(3) of this section, are trended 
forward based on changes to the outpatient hospital services component 
of the CPI-U. Actual CPI-U changes are used from the time period of the 
source data through the latest available month as of the time the 
calculations are performed. The three-month average annual trend rate as 
of the latest available month is then held constant to the midpoint of 
the calendar year in which the charges are primarily expected to be 
used. The projected total CPI-U change so obtained is then applied to 
the 80th percentile charges, as described in paragraph (e)(3) of this 
section.
    (4) Geographic area adjustment factors. For each geographic area, a 
single adjustment factor is calculated as the arithmetic average of the 
outpatient geographic area adjustment factor published in the Milliman 
USA, Inc., Health Cost Guidelines (this factor constitutes the ratio of 
the level of charges for each geographic area to the nationwide level of 
charges), and a geographic area adjustment factor developed from the MDR 
database (see paragraph (a)(3) of this section for Data Sources). The 
MDR-based geographic area adjustment factors are calculated as the ratio 
of the CPT/HCPCS code weighted average charge level for each geographic 
area to the nationwide CPT/HCPCS code weighted average charge level.
    (5) Multiple surgical procedures. When multiple surgical procedures 
are performed during the same outpatient encounter by a provider or 
provider team as indicated by multiple surgical CPT/HCPCS procedure 
codes, then the CPT/HCPCS procedure code with the highest facility 
charge will be billed at 100 percent of the charges established under 
this section; the CPT/HCPCS procedure code with the second highest 
facility charge will be billed at 25 percent of the charges established 
under this section; the CPT/HCPCS procedure code with the third highest 
facility charge will be billed at 15 percent of the charges established 
under this section; and no outpatient facility charges will be billed 
for any additional surgical procedures.
    (f) Physician and other professional charges except for anesthesia 
services and certain dental services. When VA provides or furnishes 
physician and other professional services, other than professional 
anesthesia services and certain professional dental services, within the 
scope of care referred to in paragraph (a)(1) of this section, physician 
and other professional charges billed for such services will be 
determined in accordance with the provisions of this paragraph. Charges 
for professional dental services identified by CPT code are determined 
in accordance with the provisions of this paragraph; charges for 
professional dental services identified by HCPCS Level II code are 
determined in accordance with the provisions of paragraph (h) of this 
section. Physician and other professional charges consist of charges for 
professional services that vary by geographic area, by CPT/HCPCS code, 
by site of service, and by modifier, where applicable. These charges are 
calculated as follows:
    (1) Formula. For each CPT/HCPCS code or, where applicable, each CPT/
HCPCS code and modifier combination,

[[Page 653]]

multiply the total geographically-adjusted RVUs determined pursuant to 
paragraph (f)(2) of this section by the applicable geographically-
adjusted conversion factor (a monetary amount) determined pursuant to 
paragraph (f)(3) of this section to obtain the physician charge for each 
CPT/HCPCS code in a particular geographic area. Then, multiply this 
charge by the appropriate factors for any charge-significant modifiers, 
determined pursuant to paragraph (f)(4) of this section.
    (2)(i) Total geographically-adjusted RVUs for physician services 
that have Medicare RVUs. The work expense and practice expense RVUs for 
CPT/HCPCS codes, other than the codes described in paragraphs (f)(2)(ii) 
and (f)(2)(iii) of this section, are compiled using Medicare Physician 
Fee Schedule RVUs. The sum of the geographically-adjusted work expense 
RVUs determined pursuant to paragraph (f)(2)(i)(A) of this section and 
the geographically-adjusted practice expense RVUs determined pursuant to 
paragraph (f)(2)(i)(B) of this section equals the total geographically-
adjusted RVUs.
    (A) Geographically-adjusted work expense RVUs. For each CPT/HCPCS 
code for each geographic area, the Medicare Physician Fee Schedule work 
expense RVUs are multiplied by the work expense Medicare Geographic 
Practice Cost Index. The result constitutes the geographically-adjusted 
work expense RVUs.
    (B) Geographically-adjusted practice expense RVUs. For each CPT/
HCPCS code for each geographic area, the Medicare Physician Fee Schedule 
practice expense RVUs are multiplied by the practice expense Medicare 
Geographic Practice Cost Index. The result constitutes the 
geographically-adjusted practice expense RVUs. In these calculations, 
facility practice expense RVUs are used to obtain geographically-
adjusted practice expense RVUs for use by provider-based entities, and 
non-facility practice expense RVUs are used to obtain geographically-
adjusted practice expense RVUs for use by non-provider-based entities.
    (ii) RVUs for CPT/HCPCS codes that do not have Medicare RVUs and are 
not designated as unlisted procedures. For CPT/HCPCS codes that are not 
assigned RVUs in paragraphs (f)(2)(i) or (f)(2)(iii) of this section, 
total RVUs are developed based on various charge data sources. For these 
CPT/HCPCS codes, the nationwide 80th percentile billed charges are 
obtained, where statistically credible, from the MDR database. For any 
remaining CPT/HCPCS codes, the nationwide 80th percentile billed charges 
are obtained, where statistically credible, from the Part B component of 
the Medicare Standard Analytical File 5 percent Sample. For any 
remaining CPT/HCPCS codes, the nationwide 80th percentile billed charges 
are obtained, where statistically credible, from the Prevailing 
Healthcare Charges System nationwide commercial insurance database. For 
each of these CPT/HCPCS codes, nationwide total RVUs are obtained by 
taking the nationwide 80th percentile billed charges obtained using the 
preceding three databases and dividing by the untrended nationwide 
conversion factor for the corresponding CPT/HCPCS code group determined 
pursuant to paragraphs (f)(3) and (f)(3)(i) of this section. For any 
remaining CPT/HCPCS codes that have not been assigned RVUs using the 
preceding data sources, the nationwide total RVUs are calculated by 
summing the work expense and non-facility practice expense RVUs found in 
Ingenix/St. Anthony's RBRVS. The resulting nationwide total RVUs 
obtained using these four data sources are multiplied by the geographic 
area adjustment factors determined pursuant to paragraph (f)(2)(iv) of 
this section to obtain the area-specific total RVUs.
    (iii) RVUs for CPT/HCPCS codes designated as unlisted procedures. 
For CPT/HCPCS codes designated as unlisted procedures, total RVUs are 
developed based on the weighted median of the total RVUs of CPT/HCPCS 
codes within the series in which the unlisted procedure code occurs. A 
nationwide VA distribution of procedures and services is used for the 
purpose of computing the weighted median. The resulting nationwide total 
RVUs are multiplied by the geographic area adjustment factors determined 
pursuant to paragraph (f)(2)(iv) of this section to obtain the area-
specific total RVUs.

[[Page 654]]

    (iv) RVU geographic area adjustment factors for CPT/HCPCS codes that 
do not have Medicare RVUs, including codes that are designated as 
unlisted procedures. The adjustment factor for each geographic area 
consists of the weighted average of the work expense and practice 
expense Medicare Geographic Practice Cost Indices for each geographic 
area using charge data for representative CPT/HCPCS codes statistically 
selected and weighted for work expense and practice expense.
    (3) Geographically-adjusted 80th percentile conversion factors. CPT/
HCPCS codes are separated into the following 23 CPT/HCPCS code groups: 
allergy immunotherapy, allergy testing, cardiovascular, chiropractor, 
consults, emergency room visits and observation care, hearing/speech 
exams, immunizations, inpatient visits, maternity/cesarean deliveries, 
maternity/non-deliveries, maternity/normal deliveries, miscellaneous 
medical, office/home/urgent care visits, outpatient psychiatry/alcohol 
and drug abuse, pathology, physical exams, physical medicine, radiology, 
surgery, therapeutic injections, vision exams, and well baby exams. For 
each of the 23 CPT/HCPCS code groups, representative CPT/HCPCS codes are 
statistically selected and weighted so as to give a weighted average RVU 
comparable to the weighted average RVU of the entire CPT/HCPCS code 
group (the selected CPT/HCPCS codes are set forth in the Milliman USA, 
Inc., Health Cost Guidelines fee survey); see paragraph (a)(3) of this 
section for Data Sources. The 80th percentile charge for each selected 
CPT/HCPCS code is obtained from the MDR database. A nationwide 
conversion factor (a monetary amount) is calculated for each CPT/HCPCS 
code group as set forth in paragraph (f)(3)(i) of this section. The 
nationwide conversion factors for each of the 23 CPT/HCPCS code groups 
are trended forward to the effective time period for the charges, as set 
forth in paragraph (f)(3)(ii) of this section. The resulting amounts for 
each of the 23 groups are multiplied by geographic area adjustment 
factors determined pursuant to paragraph (f)(3)(iii) of this section, 
resulting in geographically-adjusted 80th percentile conversion factors 
for each geographic area for the 23 CPT/HCPCS code groups for the 
effective charge period.
    (i) Nationwide conversion factors. Using the nationwide 80th 
percentile charges for the selected CPT/HCPCS codes from paragraph 
(f)(3) of this section, a nationwide conversion factor is calculated for 
each of the 23 CPT/HCPCS code groups by dividing the weighted average 
charge by the weighted average RVU.
    (ii) Trending forward. The nationwide conversion factors for each of 
the 23 CPT/HCPCS code groups, obtained as described in paragraph 
(f)(3)(i) of this section, are trended forward based on changes to the 
physicians' services component of the CPI-U. Actual CPI-U changes are 
used from the time period of the source data through the latest 
available month as of the time the calculations are performed. The 
three-month average annual trend rate as of the latest available month 
is then held constant to the midpoint of the calendar year in which the 
charges are primarily expected to be used. The projected total CPI-U 
change so obtained is then applied to the 23 conversion factors.
    (iii) Geographic area adjustment factors. Using the 80th percentile 
charges for the selected CPT/HCPCS codes from paragraph (f)(3) of this 
section for each geographic area, a geographic area-specific conversion 
factor is calculated for each of the 23 CPT/HCPCS code groups by 
dividing the weighted average charge by the weighted average 
geographically-adjusted RVU. The resulting conversion factor for each 
geographic area for each of the 23 CPT/HCPCS code groups is divided by 
the corresponding nationwide conversion factor determined pursuant to 
paragraph (f)(3)(i) of this section. The resulting ratios are the 
geographic area adjustment factors for the conversion factors for each 
of the 23 CPT/HCPCS code groups for each geographic area.
    (4) Charge adjustment factors for specified CPT/HCPCS code 
modifiers. Surcharges or charge discounts are calculated in the 
following manner: from the Part B component of the Medicare Standard 
Analytical File 5 percent Sample, the ratio of weighted average billed 
charges for CPT/HCPCS codes

[[Page 655]]

with the specified modifier to the weighted average billed charge for 
CPT/HCPCS codes with no charge modifier is calculated, using the 
frequency of procedure codes with the modifier as weights in both 
weighted average calculations. The resulting ratios constitute the 
surcharge or discount factors for specified charge-significant CPT/HCPCS 
code modifiers.
    (5) Certain charges for providers other than physicians. When 
services for which charges are established according to the preceding 
provisions of this paragraph (f) are performed by providers other than 
physicians, the charges for those services will be as determined by the 
preceding provisions of this paragraph, except as follows:
    (i) Outpatient facility charges. When the services of providers 
other than physicians are furnished in outpatient facility settings or 
in other facilities designated as provider-based, and outpatient 
facility charges for those services have been established under 
paragraph (e) of this section, then the outpatient facility charges 
established under paragraph (e) will apply instead of the charges 
established under this paragraph (f).
    (ii) Discounted charges. Charges for the professional services of 
the following providers will be the indicated percentages of the amount 
that would be charged if the care had been provided by a physician:
    (A) Nurse practitioner: 85 percent.
    (B) Clinical nurse specialist: 85 percent.
    (C) Physician Assistant: 85 percent.
    (D) Clinical psychologist: 80 percent.
    (E) Clinical social worker: 75 percent.
    (F) Dietitian: 75 percent.
    (G) Clinical pharmacist: 80 percent.
    (g) Professional charges for anesthesia services. When VA provides 
or furnishes professional anesthesia services within the scope of care 
referred to in paragraph (a)(1) of this section, professional anesthesia 
charges billed for such services will be determined in accordance with 
the provisions of this paragraph. Charges for professional anesthesia 
services personally performed by anesthesiologists will be 100 percent 
of the charges determined as set forth in this paragraph. Charges for 
professional anesthesia services provided by non-medically directed 
certified registered nurse anesthetists will also be 100 percent of the 
charges determined as set forth in this paragraph. Charges for 
professional anesthesia services provided by medically directed 
certified registered nurse anesthetists will be 50 percent of the 
charges otherwise determined as set forth in this paragraph. 
Professional anesthesia charges consist of charges for professional 
services that vary by geographic area, by CPT/HCPCS code base units, and 
by number of time units. These charges are calculated as follows:
    (1) Formula. For each anesthesia CPT/HCPCS code, multiply the total 
anesthesia RVUs determined pursuant to paragraph (g)(2) of this section 
by the applicable geographically-adjusted conversion factor (a monetary 
amount) determined pursuant to paragraph (g)(3) of this section to 
obtain the professional anesthesia charge for each CPT/HCPCS code in a 
particular geographic area.
    (2) Total RVUs for professional anesthesia services. The total 
anesthesia RVUs for each anesthesia CPT/HCPCS code are the sum of the 
base units (as compiled by CMS) for that CPT/HCPCS code and the number 
of time units reported for the anesthesia service, where one time unit 
equals 15 minutes. For anesthesia CPT/HCPCS codes designated as unlisted 
procedures, base units are developed based on the weighted median base 
units for anesthesia CPT/HCPCS codes within the series in which the 
unlisted procedure code occurs. A nationwide VA distribution of 
procedures and services is used for the purpose of computing the 
weighted median base units.
    (3) Geographically-adjusted 80th percentile conversion factors. A 
nationwide 80th percentile conversion factor is calculated according to 
the methodology set forth in paragraph (g)(3)(i) of this section. The 
nationwide conversion factor is then trended forward to the effective 
time period for the charges, as set forth in paragraph (g)(3)(ii) of 
this section. The resulting amount is multiplied by geographic area 
adjustment

[[Page 656]]

factors determined pursuant to paragraph (g)(3)(iii) of this section, 
resulting in geographically-adjusted 80th percentile conversion factors 
for each geographic area for the effective charge period.
    (i) Nationwide conversion factor. Preliminary 80th percentile 
conversion factors for each area are compiled from the MDR database. 
Then, a preliminary nationwide weighted-average 80th percentile 
conversion factor is calculated, using as weights the population 
(census) frequencies for each geographic area as presented in the 
Milliman USA, Inc., Health Cost Guidelines (see paragraph (a)(3) of this 
section for Data Sources). A nationwide 80th percentile fee by CPT/HCPCS 
code is then computed by multiplying this conversion factor by the MDR 
base units for each CPT/HCPCS code. An adjusted 80th percentile 
conversion factor by CPT/HCPCS code is then calculated by dividing the 
nationwide 80th percentile fee for each procedure code by the anesthesia 
base units (as compiled by CMS) for that CPT/HCPCS code. Finally, a 
nationwide weighted average 80th percentile conversion factor is 
calculated using combined frequencies for billed base units and time 
units from the part B component of the Medicare Standard Analytical File 
5 percent Sample as weights.
    (ii) Trending forward. The nationwide conversion factor, obtained as 
described in paragraph (g)(3)(i) of this section, is trended forward 
based on changes to the physicians' services component of the CPI-U. 
Actual CPI-U changes are used from the time period of the source data 
through the latest available month as of the time the calculations are 
performed. The three-month average annual trend rate as of the latest 
available month is then held constant to the midpoint of the calendar 
year in which the charges are primarily expected to be used. The 
projected total CPI-U change so obtained is then applied to the 
conversion factor.
    (iii) Geographic area adjustment factors. The preliminary 80th 
percentile conversion factors for each geographic area described in 
paragraph (g)(3)(i) of this section are divided by the corresponding 
preliminary nationwide 80th percentile conversion factor also described 
in paragraph (g)(3)(i). The resulting ratios are the adjustment factors 
for each geographic area.
    (h) Professional charges for dental services identified by HCPCS 
Level II codes. When VA provides or furnishes outpatient dental 
professional services within the scope of care referred to in paragraph 
(a)(1) of this section, and such services are identified by HCPCS code 
rather than CPT code, the charges billed for such services will be 
determined in accordance with the provisions of this paragraph. The 
charges for dental services vary by geographic area and by HCPCS code. 
These charges are calculated as follows:
    (1) Formula. For each HCPCS dental code, multiply the nationwide 
80th percentile charge determined pursuant to paragraph (h)(2) of this 
section by the appropriate geographic area adjustment factor determined 
pursuant to paragraph (h)(3) of this section. The result constitutes the 
area-specific dental charge.
    (2) Nationwide 80th percentile charges by HCPCS code. For each HCPCS 
dental code, 80th percentile charges are extracted from three 
independent data sources: Prevailing Healthcare Charges System database; 
National Dental Advisory Service nationwide pricing index; and the 
Dental UCR Module of the Comprehensive Healthcare Payment System, a 
release from Ingenix from a nationwide database of dental charges (see 
paragraph (a)(3) of this section for Data Sources). Charges for each 
database are then trended forward to a common date, based on actual 
changes to the dental services component of the CPI-U. Charges for each 
HCPCS dental code from each data source are combined into an average 
80th percentile charge by means of the methodology set forth in 
paragraph (h)(2)(i) of this section. HCPCS dental codes designated as 
unlisted are assigned 80th percentile charges by means of the 
methodology set forth in paragraph (h)(2)(ii) of this section. Finally, 
the resulting amounts are each trended forward to the effective time 
period for the charges, as set forth in paragraph (h)(2)(iii) of this 
section. The results constitute the nationwide 80th

[[Page 657]]

percentile charge for each HCPCS dental code.
    (i) Averaging methodology. The average charge for any particular 
HCPCS dental code is calculated by first computing a preliminary mean 
average of the three charges for each code. Statistical outliers are 
identified and removed by testing whether any charge differs from the 
preliminary mean charge by more than 50 percent of the preliminary mean 
charge. In such cases, the charge most distant from the preliminary mean 
is removed as an outlier, and the average charge is calculated as a mean 
of the two remaining charges. In cases where none of the charges differ 
from the preliminary mean charge by more than 50 percent of the 
preliminary mean charge, the average charge is calculated as a mean of 
all three reported charges.
    (ii) Nationwide 80th percentile charges for HCPCS dental codes 
designated as unlisted procedures. For HCPCS dental codes designated as 
unlisted procedures, 80th percentile charges are developed based on the 
weighted median 80th percentile charge of HCPCS dental codes within the 
series in which the unlisted procedure code occurs. The distribution of 
procedures and services from the Prevailing Healthcare Charges System 
nationwide commercial insurance database is used for the purpose of 
computing the weighted median.
    (iii) Trending forward. 80th percentile charges for each dental 
procedure code, obtained as described in paragraph (h)(2) of this 
section, are trended forward based on the dental services component of 
the CPI-U. Actual CPI-U changes are used from the time period of the 
source data through the latest available month as of the time the 
calculations are performed. The three-month average annual trend rate as 
of the latest available month is then held constant to the midpoint of 
the calendar year in which the charges are primarily expected to be 
used. The projected total CPI-U change so obtained is then applied to 
the 80th percentile charges.
    (3) Geographic area adjustment factors. A geographic adjustment 
factor (consisting of the ratio of the level of charges in a given 
geographic area to the nationwide level of charges) for each geographic 
area and dental class of service is obtained from Milliman USA, Inc., 
Dental Health Cost Guidelines, a database of nationwide commercial 
insurance charges and relative costs; and a normalized geographic 
adjustment factor computed from the Dental UCR Module of the 
Comprehensive Healthcare Payment System compiled by Ingenix, as follows: 
Using local and nationwide average charges reported in the Ingenix data, 
a local weighted average charge for each dental class of procedure codes 
is calculated using utilization frequencies from the Milliman USA, Inc., 
Dental Health Cost Guidelines as weights (see paragraph (a)(3) of this 
section for Data Sources). Similarly, using nationwide average charge 
levels, a nationwide average charge by dental class of procedure codes 
is calculated. The normalized geographic adjustment factor for each 
dental class of procedure codes and for each geographic area is the 
ratio of the local average charge divided by the corresponding 
nationwide average charge. Finally, the geographic area adjustment 
factor is the arithmetic average of the corresponding factors from the 
data sources mentioned in the first sentence of this paragraph (h)(3).
    (i) Pathology and laboratory charges. When VA provides or furnishes 
pathology and laboratory services within the scope of care referred to 
in paragraph (a)(1) of this section, charges billed for such services 
will be determined in accordance with the provisions of this paragraph. 
Pathology and laboratory charges consist of charges for services that 
vary by geographic area and by CPT/HCPCS code. These charges are 
calculated as follows:
    (1) Formula. For each CPT/HCPCS code, multiply the total 
geographically-adjusted RVUs determined pursuant to paragraph (i)(2) of 
this section by the applicable geographically-adjusted conversion factor 
(a monetary amount) determined pursuant to paragraph (i)(3) of this 
section to obtain the pathology/laboratory charge for each CPT/HCPCS 
code in a particular geographic area.

[[Page 658]]

    (2)(i) Total geographically-adjusted RVUs for pathology and 
laboratory services that have Medicare-based RVUs. Total RVUs are 
developed based on the Medicare Clinical Diagnostic Laboratory Fee 
Schedule (CLAB). The CLAB payment amounts are upwardly adjusted such 
that the adjusted payment amounts are, on average, equivalent to 
Medicare Physician Fee Schedule payment levels, using statistical 
comparisons to the 80th percentile derived from the MDR database. These 
adjusted payment amounts are then divided by the corresponding Medicare 
conversion factor to derive RVUs for each CPT/HCPCS code. The resulting 
nationwide total RVUs are multiplied by the geographic adjustment 
factors determined pursuant to paragraph (i)(2)(iv) of this section to 
obtain the area-specific total RVUs.
    (ii) RVUs for CPT/HCPCS codes that do not have Medicare-based RVUs 
and are not designated as unlisted procedures. For CPT/HCPCS codes that 
are not assigned RVUs in paragraphs (i)(2)(i) or (i)(2)(iii) of this 
section, total RVUs are developed based on various charge data sources. 
For these CPT/HCPCS codes, the nationwide 80th percentile billed charges 
are obtained, where statistically credible, from the MDR database. For 
any remaining CPT/HCPCS codes, the nationwide 80th percentile billed 
charges are obtained, where statistically credible, from the Part B 
component of the Medicare Standard Analytical File 5 percent Sample. For 
any remaining CPT/HCPCS codes, the nationwide 80th percentile billed 
charges are obtained, where statistically credible, from the Prevailing 
Healthcare Charges System nationwide commercial insurance database. For 
each of these CPT/HCPCS codes, nationwide total RVUs are obtained by 
taking the nationwide 80th percentile billed charges obtained using the 
preceding three databases and dividing by the untrended nationwide 
conversion factor determined pursuant to paragraphs (i)(3) and (i)(3)(i) 
of this section. For any remaining CPT/HCPCS codes that have not been 
assigned RVUs using the preceding data sources, the nationwide total 
RVUs are calculated by summing the work expense and non-facility 
practice expense RVUs found in Ingenix/St. Anthony's RBRVS. The 
resulting nationwide total RVUs obtained using these four data sources 
are multiplied by the geographic area adjustment factors determined 
pursuant to paragraph (i)(2)(iv) of this section to obtain the area-
specific total RVUs.
    (iii) RVUs for CPT/HCPCS codes designated as unlisted procedures. 
For CPT/HCPCS codes designated as unlisted procedures, total RVUs are 
developed based on the weighted median of the total RVUs of CPT/HCPCS 
codes within the series in which the unlisted procedure code occurs. A 
nationwide VA distribution of procedures and services is used for the 
purpose of computing the weighted median. The resulting nationwide total 
RVUs are multiplied by the geographic area adjustment factors determined 
pursuant to paragraph (i)(2)(iv) of this section to obtain the area-
specific total RVUs.
    (iv) RVU geographic area adjustment factors for CPT/HCPCS codes that 
do not have Medicare RVUs, including codes that are designated as 
unlisted procedures. The adjustment factor for each geographic area 
consists of the weighted average of the work expense and practice 
expense Medicare Geographic Practice Cost Indices for each geographic 
area using charge data for representative CPT/HCPCS codes statistically 
selected and weighted for work expense and practice expense.
    (3) Geographically-adjusted 80th percentile conversion factors. 
Representative CPT/HCPCS codes are statistically selected and weighted 
so as to give a weighted average RVU comparable to the weighted average 
RVU of the entire pathology/laboratory CPT/HCPCS code group (the 
selected CPT/HCPCS codes are set forth in the Milliman USA, Inc., Health 
Cost Guidelines fee survey). The 80th percentile charge for each 
selected CPT/HCPCS code is obtained from the MDR database. A nationwide 
conversion factor (a monetary amount) is calculated as set forth in 
paragraph (i)(3)(i) of this section. The nationwide conversion factor is 
trended forward to the effective time period for the charges, as set 
forth in paragraph (i)(3)(ii) of this section. The resulting amount is 
multiplied by a geographic

[[Page 659]]

area adjustment factor determined pursuant to paragraph (i)(3)(iv) of 
this section, resulting in the geographically-adjusted 80th percentile 
conversion factor for the effective charge period.
    (i) Nationwide conversion factors. Using the nationwide 80th 
percentile charges for the selected CPT/HCPCS codes from paragraph 
(i)(3) of this section, a nationwide conversion factor is calculated by 
dividing the weighted average charge by the weighted average RVU.
    (ii) Trending forward. The nationwide conversion factor, obtained as 
described in paragraph (i)(3) of this section, is trended forward based 
on changes to the physicians' services component of the CPI-U. Actual 
CPI-U changes are used from the time period of the source data through 
the latest available month as of the time the calculations are 
performed. The three-month average annual trend rate as of the latest 
available month is then held constant to the midpoint of the calendar 
year in which the charges are primarily expected to be used. The 
projected total CPI-U change so obtained is then applied to the 
pathology/laboratory conversion factor.
    (iii) Geographic area adjustment factor. Using the 80th percentile 
charges for the selected CPT/HCPCS codes from paragraph (i)(3) of this 
section for each geographic area, a geographic area-specific conversion 
factor is calculated by dividing the weighted average charge by the 
weighted average geographically-adjusted RVU. The resulting geographic 
area conversion factor is divided by the corresponding nationwide 
conversion factor determined pursuant to paragraph (i)(3)(i) of this 
section. The resulting ratios are the geographic area adjustment factors 
for pathology and laboratory services for each geographic area.
    (j) Observation care facility charges. When VA provides observation 
care within the scope of care referred to in paragraph (a)(1) of this 
section, the facility charges billed for such care will be determined in 
accordance with the provisions of this paragraph. The charges for this 
care vary by geographic area and number of hours of care. These charges 
are calculated as follows:
    (1) Formula. For each occurrence of observation care, add the 
nationwide base charge determined pursuant to paragraph (j)(2) of this 
section to the product of the number of hours in observation care and 
the hourly charge also determined pursuant to paragraph (j)(2) of this 
section. Then multiply this amount by the appropriate geographic area 
adjustment factor determined pursuant to paragraph (j)(3) of this 
section. The result constitutes the area-specific observation care 
facility charge.
    (2)(i) Nationwide 80th percentile observation care facility charges. 
To calculate nationwide base and hourly facility charges, all claims 
with observation care line items are selected from the outpatient 
facility component of the Medicare Standard Analytical File 5 percent 
Sample. Then, using the 80th percentile observation line item charges 
for each unique hourly length of stay, a standard linear regression 
technique is used to calculate the nationwide 80th percentile base 
charge and 80th percentile hourly charge. Finally, the resulting amounts 
are each trended forward to the effective time period for the charges, 
as set forth in paragraph (j)(2)(ii) of this section. The results 
constitute the nationwide 80th percentile base and hourly facility 
charges for observation care.
    (ii) Trending forward. The nationwide 80th percentile base and 
hourly facility charges for observation care, obtained as described in 
paragraph (j)(2)(i) of this section, are trended forward based on 
changes to the outpatient hospital services component of the CPI-U. 
Actual CPI-U changes are used from the time period of the source data 
through the latest available month as of the time the calculations are 
performed. The three-month average annual trend rate as of the latest 
available month is then held constant to the midpoint of the calendar 
year in which the charges are primarily expected to be used. The 
projected total CPI-U change so obtained is then applied to the 80th 
percentile charges.
    (3) Geographic area adjustment factors. The geographic area 
adjustment factors for observation care facility

[[Page 660]]

charges are the same as those computed for outpatient facility charges 
under paragraph (e)(4) of this section.
    (k) Ambulance and other emergency transportation charges. When VA 
provides ambulance and other emergency transportation services that are 
within the scope of care referred to in paragraph (a)(1) of this 
section, the charges billed for such services will be determined in 
accordance with the provisions of this paragraph. The charges for these 
services vary by HCPCS code, length of trip, and geographic area. These 
charges are calculated as follows:
    (1) Formula. For each occasion of ambulance or other emergency 
transportation service, add the nationwide base charge for the 
appropriate HCPCS code determined pursuant to paragraph (k)(2)(i) of 
this section to the product of the number of miles traveled and the 
appropriate HCPCS code mileage charge determined pursuant to paragraph 
(k)(2)(ii) of this section. Then multiply this amount by the appropriate 
geographic area adjustment factor determined pursuant to paragraph 
(k)(3) of this section. The result constitutes the area-specific 
ambulance or other emergency transportation service charge.
    (2)(i) Nationwide 80th percentile all-inclusive base charge. To 
calculate a nationwide all-inclusive base charge, all ambulance and 
other emergency transportation claims are selected from the outpatient 
facility component of the Medicare Standard Analytical File 5 percent 
Sample. Excluding professional and mileage charges, as well as all-
inclusive charges which are reported on such claims, the total charge 
per claim, including incidental supplies, is computed. Then, the 80th 
percentile amount for each HCPCS code is computed. Finally, the 
resulting amounts are each trended forward to the effective time period 
for the charges, as set forth in paragraph (k)(2)(iii) of this section. 
The results constitute the nationwide 80th percentile all-inclusive base 
charge for each HCPCS base charge code.
    (ii) Nationwide 80th percentile mileage charge. To calculate a 
nationwide mileage charge, all ambulance and other emergency 
transportation claims are selected from the outpatient facility 
component of the Medicare Standard Analytical File 5 percent Sample. 
Excluding professional, incidental, and base charges, as well as claims 
with all-inclusive charges, the total mileage charge per claim is 
computed. This amount is divided by the number of miles reported on the 
claim. Then, the 80th percentile amount for each HCPCS code, using miles 
as weights, is computed. Finally, the resulting amounts are each trended 
forward to the effective time period for the charges, as set forth in 
paragraph (k)(2)(iii) of this section. The results constitute the 
nationwide 80th percentile mileage charge for each HCPCS mileage code.
    (iii) Trending forward. The nationwide 80th percentile charge for 
each HCPCS code, obtained as described in paragraphs (k)(2)(i) and 
(k)(2)(ii) of this section, is trended forward based on changes to the 
outpatient hospital services component of the CPI-U. Actual CPI-U 
changes are used from the time period of the source data through the 
latest available month as of the time the calculations are performed. 
The three-month average annual trend rate as of the latest available 
month is then held constant to the midpoint of the calendar year in 
which the charges are primarily expected to be used. The projected total 
CPI-U change so obtained is then applied to the 80th percentile charges.
    (3) Geographic area adjustment factors. The geographic area 
adjustment factors for ambulance and other emergency transportation 
charges are the same as those computed for outpatient facility charges 
under paragraph (e)(4) of this section.
    (l) Charges for durable medical equipment, drugs, injectables, and 
other medical services, items, and supplies identified by HCPCS Level II 
codes. When VA provides DME, drugs, injectables, or other medical 
services, items, or supplies that are identified by HCPCS Level II codes 
and that are within the scope of care referred to in paragraph (a)(1) of 
this section, the charges billed for such services, items, and supplies 
will be determined in accordance with the provisions of this paragraph. 
The charges for these services, items, and supplies vary by geographic 
area, by HCPCS code,

[[Page 661]]

and by modifier, when applicable. These charges are calculated as 
follows:
    (1) Formula. For each HCPCS code, multiply the nationwide charge 
determined pursuant to paragraphs (l)(2), (l)(3), and (l)(4) of this 
section by the appropriate geographic area adjustment factor determined 
pursuant to paragraph (l)(5) of this section. The result constitutes the 
area-specific charge.
    (2) Nationwide 80th percentile charges for HCPCS codes with RVUs. 
For each applicable HCPCS code, RVUs are compiled from the data sources 
set forth in paragraph (l)(2)(i) of this section. The RVUs are 
multiplied by the charge amount for each incremental RVU determined 
pursuant to paragraph (l)(2)(ii) of this section, and this amount is 
added to the fixed charge amount also determined pursuant to paragraph 
(l)(2)(ii) of this section. Then, for each HCPCS code, this charge is 
multiplied by the appropriate 80th percentile to median charge ratio 
determined pursuant to paragraph (l)(2)(iii) of this section. Finally, 
the resulting amount is trended forward to the effective time period for 
the charges, as set forth in paragraph (l)(2)(iv) of this section to 
obtain the nationwide 80th percentile charge.
    (i) RVUs for DME, drugs, injectables, and other medical services, 
items, and supplies. For the purpose of the statistical methodology set 
forth in paragraph (l)(2)(ii) of this section, HCPCS codes are assigned 
to the following HCPCS code groups. For the HCPCS codes in each group, 
the RVUs or amounts indicated constitute the RVUs:
    (A) Chemotherapy Drugs: Ingenix/St. Anthony's RBRVS Practice Expense 
RVUs.
    (B) Other Drugs: Ingenix/St. Anthony's RBRVS Practice Expense RVUs.
    (C) DME--Hospital Beds: Medicare DME Fee Schedule amounts.
    (D) DME--Medical/Surgical Supplies: Medicare DME Fee Schedule 
amounts.
    (E) DME--Orthotic Devices: Medicare DME Fee Schedule amounts.
    (F) DME--Oxygen and Supplies: Medicare DME Fee Schedule amounts.
    (G) DME--Wheelchairs: Medicare DME Fee Schedule amounts.
    (H) Other DME: Medicare DME Fee Schedule amounts.
    (I) Enteral/Parenteral Supplies: Medicare Parenteral and Enteral 
Nutrition Fee Schedule amounts.
    (J) Surgical Dressings and Supplies: Medicare DME Fee Schedule 
amounts.
    (K) Vision Items--Other Than Lenses: Medicare DME Fee Schedule 
amounts.
    (L) Vision Items--Lenses: Medicare DME Fee Schedule amounts.
    (M) Hearing Items: Ingenix/St. Anthony's RBRVS Practice Expense 
RVUs.
    (ii) Charge amounts. Using combined Part B and DME components of the 
Medicare Standard Analytical File 5% Sample, the median billed charge is 
calculated for each HCPCS code. A mathematical approximation methodology 
based on least squares techniques is applied to the RVUs specified for 
each of the groups set forth in paragraph (l)(2)(i) of this section, 
yielding two charge amounts for each HCPCS code group: a charge amount 
per incremental RVU, and a fixed charge amount.
    (iii) 80th Percentile to median charge ratios. Two ratios are 
obtained for each HCPCS code group set forth in paragraph (l)(2)(i) of 
this section by dividing the weighted average 80th percentile charge by 
the weighted average median charge derived from two data sources: 
Medicare data, as represented by the combined Part B and DME components 
of the Medicare Standard Analytical File 5% Sample; and the MDR 
database. Charge frequencies from the Medicare data are used as weights 
when calculating all weighted averages. For each HCPCS code group, the 
smaller of the two ratios is selected as the adjustment from median to 
80th percentile charges.
    (iv) Trending forward. The charges for each HCPCS code, obtained as 
described in paragraph (l)(2)(iii) of this section, are trended forward 
based on changes to the medical care commodities component of the CPI-U. 
Actual CPI-U changes are used from the time period of the source data 
through the latest available month as of the time the calculations are 
performed. The three-month average annual trend rate as of the latest 
available month is then

[[Page 662]]

held constant to the midpoint of the calendar year in which the charges 
are primarily expected to be used. The projected total CPI-U change so 
obtained is then applied to the 80th percentile charges, as described in 
paragraph (l)(2)(iii) of this section.
    (3) Nationwide 80th percentile charges for HCPCS codes without RVUs. 
For each applicable HCPCS code, 80th percentile charges are extracted 
from three independent data sources: the MDR database; Medicare, as 
represented by the combined Part B and DME components of the Medicare 
Standard Analytical File 5 percent Sample; and Milliman USA, Inc., 
Optimized HMO (Health Maintenance Organization) Data Sets (see paragraph 
(a)(3) of this section for Data Sources). Charges from each database are 
then trended forward to the effective time period for the charges, as 
set forth in paragraph (l)(3)(i) of this section. Charges for each HCPCS 
code from each data source are combined into an average 80th percentile 
charge by means of the methodology set forth in paragraph (l)(3)(ii) of 
this section. The results constitute the nationwide 80th percentile 
charge for each applicable HCPCS code.
    (i) Trending forward. The charges from each database for each HCPCS 
code, obtained as described in paragraph (l)(3) of this section, are 
trended forward based on changes to the medical care commodities 
component of the CPI-U. Actual CPI-U changes are used from the time 
period of each source database through the latest available month as of 
the time the calculations are performed. The three-month average annual 
trend rate as of the latest available month is then held constant to the 
midpoint of the calendar year in which the charges are primarily 
expected to be used. The projected total CPI-U change so obtained is 
then applied to the 80th percentile charges, as described in paragraph 
(l)(3) of this section.
    (ii) Averaging methodology. The average 80th percentile trended 
charge for any particular HCPCS code is calculated by first computing a 
preliminary mean average of the three charges for each HCPCS code. 
Statistical outliers are identified and removed by testing whether any 
charge differs from the preliminary mean charge by more than 5 times the 
preliminary mean charge, or by less than 0.2 times the preliminary mean 
charge. In such cases, the charge most distant from the preliminary mean 
is removed as an outlier, and the average charge is calculated as a mean 
of the two remaining charges. In cases where none of the charges differ 
from the preliminary mean charge by more than 5 times the preliminary 
mean charge, or less than 0.2 times the preliminary mean charge, the 
average charge is calculated as a mean of all three reported charges.
    (4) Nationwide 80th percentile charges for HCPCS codes designated as 
unlisted or unspecified. For HCPCS codes designated as unlisted or 
unspecified procedures, services, items, or supplies, 80th percentile 
charges are developed based on the weighted median 80th percentile 
charges of HCPCS codes within the series in which the unlisted or 
unspecified code occurs. A nationwide VA distribution of procedures, 
services, items, and supplies is used for the purpose of computing the 
weighted median.
    (5) Geographic area adjustment factors. For the purpose of 
geographic adjustment, HCPCS codes are combined into two groups: drugs 
and DME/supplies, as set forth in paragraph (l)(5)(i) of this section. 
The geographic area adjustment factor for each of these groups is 
calculated as the ratio of the area-specific weighted average charge 
determined pursuant to paragraph (l)(5)(ii) of this section divided by 
the nationwide weighted average charge determined pursuant to paragraph 
(l)(5)(iii) of this section.
    (i) Combined HCPCS code groups for geographic area adjustment 
factors for DME, drugs, injectables, and other medical services, items, 
and supplies. For the purpose of the statistical methodology set forth 
in paragraph (l)(5) of this section, each of the HCPCS code groups set 
forth in paragraph (l)(2)(i) of this section is assigned to one of two 
combined HCPCS code groups, as follows:
    (A) Chemotherapy Drugs: Drugs.
    (B) Other Drugs: Drugs.
    (C) DME--Hospital Beds: DME/supplies.
    (D) DME--Medical/Surgical Supplies: DME/supplies.

[[Page 663]]

    (E) DME--Orthotic Devices: DME/supplies.
    (F) DME--Oxygen and Supplies: DME/supplies.
    (G) DME--Wheelchairs: DME/supplies.
    (H) Other DME: DME/supplies.
    (I) Enteral/Parenteral Supplies: DME/supplies.
    (J) Surgical Dressings and Supplies: DME/supplies.
    (K) Vision Items--Other Than Lenses: DME/supplies.
    (L) Vision Items--Lenses: DME/supplies.
    (M) Hearing Items: DME/supplies.
    (ii) Area-specific weighted average charges. Using the median 
charges by HCPCS code from the MDR database for each geographic area and 
utilization frequencies by HCPCS code from the combined Part B and DME 
components of the Medicare Standard Analytical File 5 percent Sample, an 
area-specific weighted average charge is calculated for each combined 
HCPCS code group.
    (iii) Nationwide weighted average charges. Using the area-specific 
weighted average charges determined pursuant to paragraph (l)(5)(ii) of 
this section, a nationwide weighted average charge is calculated for 
each combined HCPCS code group, using as weights the population (census) 
frequencies for each geographic area as presented in the Milliman USA, 
Inc., Health Cost Guidelines (see paragraph (a)(3) of this section for 
Data Sources).
    (m) Charges for prescription drugs not administered during 
treatment. Notwithstanding other provisions of this section, when VA 
provides or furnishes prescription drugs not administered during 
treatment, within the scope of care referred to in paragraph (a)(1) of 
this section, charges billed separately for such prescription drugs will 
be based on VA costs in accordance with the methodology set forth in 
Sec. 17.102 of this part.
    Note to Sec. 17.101: The charges generated by the methodology set 
forth in this section are the same charges prescribed by the Office of 
Management and Budget for use under the Federal Medical Care Recovery 
Act, 42 U.S.C. 2651-2653.

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0606.)

(Authority: 38 U.S.C. 101, 501, 1701, 1705, 1710, 1721, 1722, 1729.)

[68 FR 70715, Dec. 19, 2003, as amended at 69 FR 1061, Jan. 7, 2004]



Sec. 17.102  Charges for care or services.

    Except as provided in Sec. 17.101, charges at the indicated rates 
shall be made for Department of Veterans Affairs hospital care or 
medical services (including, but not limited to, dental services, 
supplies, medicines, orthopedic and prosthetic appliances, and 
domiciliary or nursing home care) as follows:
    (a) Furnished in error or on tentative eligibility. Charges at rates 
prescribed by the Under Secretary for Health shall be made for inpatient 
or outpatient care or services (including domiciliary care) authorized 
for any person on the basis of eligibility as a veteran or a tentative 
eligibility determination under Sec. 17.34 but he or she was 
subsequently found to have been ineligible for such care or services as 
a veteran because the military service or any other eligibility 
requirement was not met, or
    (b) Furnished in a medical emergency. Charges at rates prescribed by 
the Under Secretary for Health shall be made for any inpatient or 
outpatient care or services rendered any person in a medical emergency 
who was not eligible for such care or services as a veteran, if:
    (1) The care or services were rendered as a humanitarian service, 
under Sec. 17.43(c)(1) or Sec. 17.95 to a person neither claiming 
eligibility as a veteran nor for whom the establishment of eligibility 
as a veteran was expected, or
    (2) The person for whom care or services were rendered was a 
Department of Veterans Affairs employee or a member of a Department of 
Veterans Affairs employee's family; or
    (c) Furnished beneficiaries of the Department of Defense or other 
Federal agencies. Except as provided for in paragraph (f) of this 
section and the second sentence of this paragraph,

[[Page 664]]

charges at rates prescribed by the Office of Management and Budget shall 
be made for any inpatient or outpatient care or services authorized for 
a member of the Armed Forces on active duty or for any beneficiary or 
designee of any other Federal agency. Charges for services provided a 
member or former member of a uniformed service who is entitled to 
retired or retainer pay, or equivalent pay, will be at rates prescribed 
by the Secretary (E.O. 11609, dated July 22, 1971, 36 FR 13747), or
    (d) Furnished pensioners of allied nations. Charges at rates 
prescribed by the Under Secretary for Health shall be made for any 
inpatient or outpatient care or services rendered a pensioner of a 
nation allied with the United States in World War I and World War II; or
    (e) Furnished under sharing agreements. Charges at rates agreed upon 
in an agreement for sharing specialized medical resources shall be made 
for all medical care or services, either on an inpatient or outpatient 
basis, rendered to a person designated by the other party to the 
agreement as a patient to be benefited under the agreement; or
    (f) Furnished military retirees with chronic disability. Charges for 
subsistence at rates prescribed by the Under Secretary for Health shall 
be made for the period during which hospital care is rendered when such 
care is rendered to a member or former member of the Armed Forces 
required to pay the subsistence rate under Sec. 17.47 (b)(2) and 
(c)(2).
    (g) Furnished for research purposes. Charges will not be made for 
medical services, including transportation, furnished as part of an 
approved Department of Veterans Affairs research project, except that if 
the services are furnished to a person who is not eligible for the 
services as a veteran, the medical care appropriation shall be 
reimbursed from the research appropriation at the same rates used for 
billings under paragraph (b) of this section.
    (h) Computation of charges. The method for computing the charges 
under paragraphs (a), (b), (d), (f), and (g) and the last sentence of 
paragraph (c) of this section is based on the Cost Distribution Report, 
which sets forth the actual basic costs and per diem rates by type of 
inpatient care and outpatient visit. Factors for depreciation of 
buildings and equipment and Central Office overhead are added, based on 
accounting manual instructions. Additional factors are added for 
interest on capital investment and for standard fringe benefit costs 
covering government employee retirement and disability costs. The 
current year billing rates are projected on prior year actual rates by 
applying the budgeted percentage increase. In addition, based on the 
detail available in the Cost Distribution Report, VA intends to, on each 
bill break down the all-inclusive rate into its three principal 
components; namely, physician cost, ancillary services cost, and 
nursing, room and board cost. The rates generated by the foregoing 
methodology will be published by either VA or OMB in the `Notices' 
section of the Federal Register.

(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)

[32 FR 11382, Aug. 5, 1967, as amended at 34 FR 7807, May 16, 1969; 35 
FR 11470, July 17, 1970; 36 FR 18794, Sept. 22, 1971; 47 FR 50861, Nov. 
10, 1982; 47 FR 58249, Dec. 1982; 52 FR 3010, Jan. 30, 1987. 
Redesignated and amended at 61 FR 21965, 21967, May 13, 1996; 62 FR 
17072, Apr. 9, 1997. Redesignated and amended at 64 FR 22678, 22683, 
Apr. 27, 1999; 69 FR 1061, Jan. 7, 2004]



Sec. 17.103  Referrals of compromise settlement offers.

    Any offer to compromise or settle any charges or claim for $20,000 
or less asserted by the Department of Veterans Affairs in connection 
with the medical program shall be referred as follows:
    (a) To Chiefs of Fiscal activities. If the debt represents charges 
made under Sec. 17.101(a), the compromise offer shall be referred to 
the Chief of the Fiscal activity of the facility for application of the 
collection standards in Sec. 1.900 et seq. of this chapter, provided:
    (1) The debt does not exceed $1,000, and
    (2) There has been a previous denial of waiver of the debt by a 
field station Committee on Waivers and Compromises.
    (b) To Regional Counsel. If the debt in any amount represents 
charges for

[[Page 665]]

medical services for which there is or may be a claim against a third 
party tort-feasor or under workers' compensation laws or Pub. L. 87-693; 
76 Stat. 593 (see Sec. 1.903 of this chapter) or involves a claim 
contemplated by Sec. 1.902 of this chapter over which the Department of 
Veterans Affairs lacks jurisdiction, the compromise offer (or request 
for waiver or proposal to terminate or suspend collection action) shall 
be promptly referred to the field station Regional Counsel having 
jurisdiction in the area in which the claim arose, or
    (c) To Committee on Waivers and Compromises. If one of the following 
situations contemplated in paragraph (c)(1) through (3) of this section 
applies
    (1) If the debt represents charges made under Sec. 17.101(a), but 
is not of a type contemplated in paragraph (a) of this section, or
    (2) If the debt represents charges for medical services made under 
Sec. 17.101(b), or
    (3) A claim arising in connection with any transaction of the 
Veterans Health Administration for which the instructions in paragraph 
(a) or (b) of this section or in Sec. 17.105(c) are not applicable, 
then, the compromise offer should be referred for disposition under 
Sec. 1.900 et seq. of this chapter to the field station Committee on 
Waivers and Compromises which shall take final action.

[39 FR 26403, July 19, 1974, as amended at 47 FR 58250, Dec. 30, 1982. 
Redesignated and amended at 61 FR 21966, 21967, May 13, 1996; 62 FR 
17072, Apr. 9, 1997]



Sec. 17.104  Terminations and suspensions.

    Any proposal to suspend or terminate collection action on any 
charges or claim for $20,000 or less asserted by the Department of 
Veterans Affairs in connection with the medical program shall be 
referred as follows:
    (a) Of charges for medical services. If the debt represents charges 
made under Sec. 17.101 (a) or (b) questions concerning suspension or 
termination of collection action shall be referred to the Chief of the 
Fiscal activity of the station for application of the collection 
standards in Sec. 1.900 et seq. of this chapter, or
    (b) Of other debts. If the debt is of a type other than those 
contemplated in paragraph (a) of this section, questions concerning 
suspension or termination of collection action shall be referred in 
accordance with the same referral procedures for compromise offers 
(except the Fiscal activity shall make final determinations in 
terminations or suspensions involving claims of $150 or less pursuant to 
the provisions of Sec. 1.900 et seq. of this chapter.)

[34 FR 7807, May 16, 1969, as amended at 39 FR 26403, July 19, 1974. 
Redesignated and amended at 61 FR 21966, 21967, May 13, 1996]



Sec. 17.105  Waivers.

    Applications or requests for waiver of debts or claims asserted by 
the Department of Veterans Affairs in connection with the medical 
program generally will be denied by the facility Fiscal activity on the 
basis there is no legal authority to waive debts, unless the question of 
waiver should be referred as follows:
    (a) Of charges for medical services. If the debt represents charges 
made under Sec. 17.102, the application or request for waiver should be 
referred for disposition under Sec. 1.900 et seq. of this chapter to 
the field facility Committee on Waivers and Compromises which shall take 
final action, or
    (b) Of claims against third persons and other claims. If the debt is 
of a type contemplated in Sec. 17.103(b), the waiver question should be 
referred in accordance with the same referral procedures for compromise 
offers in such categories of claims, or
    (c) Of charges for copayments. If the debt represents charges for 
outpatient medical care, inpatient hospital care, medication or extended 
care services copayments made under Sec. Sec. 17.108, 17.110 or 17.111 
of this chapter, the claimant must request a waiver by submitting VA 
Form 5655 (Financial Status Report) to a Fiscal Officer at a VA medical 
facility where all or part of the debt was incurred. The claimant must 
submit this form within the time period provided in Sec. 1.963(b) of 
this chapter and may request a hearing under Sec. 1.966(a) of this 
chapter. The Fiscal Officer may extend the time period for submitting a 
claim if the Chairperson

[[Page 666]]

of the Committee on Waivers and Compromises could do so under Sec. 
1.963(b) of this chapter. The Fiscal Officer will apply the standard 
``equity and good conscience'' in accordance with Sec. Sec. 1.965 and 
1.966(a) of this chapter, and may waive all or part of the claimant's 
debts. A decision by the Fiscal Officer under this provision is final 
(except that the decision may be reversed or modified based on new and 
material evidence, fraud, a change in law or interpretation of law, or 
clear and unmistakable error shown by the evidence in the file at the 
time of the prior decision as provided in Sec. 1.969 of this chapter) 
and may be appealed in accordance with 38 CFR parts 19 and 20.
    (d) Other debts. If the debt represents any claim or charges other 
than those contemplated in paragraphs (a) and (b) of this section, and 
is a debt for which waiver has been specifically provided for by law or 
under the terms of a contract, initial action shall be taken at the 
station level for referral of the request for waiver through channels 
for action by the appropriate designated official. If, however, the 
question of waiver may also involve a concurrent opportunity to 
negotiate a compromise settlement, the application shall be referred to 
the Committee on Waivers and Compromises.
    (The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0165.)


(Authority: 38 U.S.C. 501, 1721, 1722A, 1724)

[39 FR 26403, July 19, 1974. Redesignated and amended at 61 FR 21966, 
21967, May 13, 1996; 69 FR 62204, Oct. 25, 2004]

Disciplinary Control of Beneficiaries Receiving Hospital, Domiciliary or 
                            Nursing Home Care



Sec. 17.106  Authority for disciplinary action.

    The good conduct of beneficiaries receiving hospitalization for 
observation and examination or for treatment, or receiving domiciliary 
or nursing home care in facilities under direct and exclusive 
jurisdiction of the Department of Veterans Affairs, will be maintained 
by corrective and disciplinary procedure formulated by the Department of 
Veterans Affairs. Such corrective and disciplinary measures, to be 
selectively applied in keeping with the comparative gravity of the 
particular offense, will consist, in respect to hospital patients, of 
such penalties as the withholding for a determined period of pass 
privileges, exclusion from entertainments, or disciplinary discharge; 
and, in respect to domiciled members, such penalties as confinement to 
sections or grounds, deprivation of privileges, enforced furlough, or 
disciplinary discharge. Also, for any violation of the Department of 
Veterans Affairs rules set forth in Sec. 1.218, or other Federal laws 
on Department of Veterans Affairs property, a beneficiary is subject to 
the penalty prescribed for the offense.

[38 FR 24366, Sept. 7, 1973. Redesignated at 61 FR 21966, May 13, 1996]

                               Copayments



Sec. 17.108  Copayments for inpatient hospital care and outpatient 
medical care.

    (a) General. This section sets forth requirements regarding 
copayments for inpatient hospital care and outpatient medical care 
provided to veterans by VA.
    (b) Copayments for inpatient hospital care. (1) Except as provided 
in paragraphs (d) or (e) of this section, a veteran, as a condition of 
receiving inpatient hospital care provided by VA (provided either 
directly by VA or obtained by VA by contract), must agree to pay VA (and 
is obligated to pay VA) the applicable copayment, as set forth in 
paragraph (b)(2) or (b)(3) of this section.
    (2) The copayment for inpatient hospital care shall be, during any 
365-day period, a copayment equaling the sum of:
    (i) $10 for every day the veteran receives inpatient hospital care, 
and
    (ii) The lesser of:
    (A) The sum of the inpatient Medicare deductible for the first 90 
days of care and one-half of the inpatient Medicare deductible for each 
subsequent 90 days of care (or fraction thereof) after the first 90 days 
of such care during such 365-day period, or
    (B) VA's cost of providing the care.

[[Page 667]]

    (3) The copayment for inpatient hospital care for veterans enrolled 
in priority category 7 shall be 20 percent of the amount computed under 
paragraph (b)(2) of this section.

    Note to Sec. 17.108(b): The requirement that a veteran agree to pay 
the copayment would be met by submitting to VA a signed VA Form 10-10EZ. 
This is the application form for enrollment in the VA healthcare system 
and also is the document used for providing means-test information 
annually.

    (c) Copayments for outpatient medical care. (1) Except as provided 
in paragraphs (d), (e) or (f) of this section, a veteran, as a condition 
of receiving outpatient medical care provided by VA, must agree to pay 
VA (and is obligated to pay VA) a copayment as set forth in paragraph 
(c)(2) of this section.
    (2) The copayment for outpatient medical care is $15 for a primary 
care outpatient visit and $50 for a specialty care outpatient visit. If 
a veteran has more than one primary care encounter on the same day and 
no specialty care encounter on that day, the copayment amount is the 
copayment for one primary care outpatient visit. If a veteran has one or 
more primary care encounters and one or more specialty care encounters 
on the same day, the copayment amount is the copayment for one specialty 
care outpatient visit.
    (3) For purposes of this section, a primary care visit is an episode 
of care furnished in a clinic that provides integrated, accessible 
healthcare services by clinicians who are accountable for addressing a 
large majority of personal healthcare needs, developing a sustained 
partnership with patients, and practicing in the context of family and 
community. Primary care includes, but is not limited to, diagnosis and 
management of acute and chronic biopsychosocial conditions, health 
promotion, disease prevention, overall care management, and patient and 
caregiver education. Each patient's identified primary care clinician 
delivers services in the context of a larger interdisciplinary primary 
care team. Patients have access to the primary care clinician and much 
of the primary care team without need of a referral. In contrast, 
specialty care is generally provided through referral. A specialty care 
outpatient visit is an episode of care furnished in a clinic that does 
not provide primary care, and is only provided through a referral. Some 
examples of specialty care provided at a specialty care clinic are 
radiology services requiring the immediate presence of a physician, 
audiology, optometry, magnetic resonance imagery (MRI), computerized 
axial tomography (CAT) scan, nuclear medicine studies, surgical 
consultative services, and ambulatory surgery.

    Note to Sec. 17.108(c): The requirement that a veteran agree to pay 
the copayment would be met by submitting to VA a signed VA Form 10-10EZ. 
This is the application form for enrollment in the VA healthcare system 
and also is the document used for providing means-test information 
annually.

    (d) Veterans not subject to copayment requirements for inpatient 
hospital care or outpatient medical care. The following veterans are not 
subject to the copayment requirements of this section:
    (1) A veteran with a compensable service-connected disability;
    (2) A veteran who is a former prisoner of war;
    (3) A veteran awarded a Purple Heart;
    (4) A veteran who was discharged or released from active military 
service for a disability incurred or aggravated in the line of duty;
    (5) A veteran who receives disability compensation under 38 U.S.C. 
1151;
    (6) A veteran whose entitlement to disability compensation is 
suspended pursuant to 38 U.S.C. 1151, but only to the extent that the 
veteran's continuing eligibility for care is provided for in the 
judgment or settlement described in 38 U.S.C. 1151;
    (7) A veteran whose entitlement to disability compensation is 
suspended because of the receipt of military retirement pay;
    (8) A veteran of the Mexican border period or of World War I;
    (9) A military retiree provided care under an interagency agreement 
as defined in section 113 of Public Law 106-117, 113 Stat. 1545; or
    (10) A veteran who VA determines to be unable to defray the expenses 
of necessary care under 38 U.S.C. 1722(a).
    (e) Services not subject to copayment requirements for inpatient 
hospital care or outpatient medical care. The following

[[Page 668]]

are not subject to the copayment requirements under this section:
    (1) Care provided to a veteran for a noncompensable zero percent 
service-connected disability;
    (2) Care authorized under 38 U.S.C. 1710(e) for Vietnam-era 
herbicide-exposed veterans, radiation-exposed veterans, Gulf War 
veterans, or post-Gulf War combat-exposed veterans;
    (3) Special registry examinations (including any follow-up 
examinations or testing ordered as part of the special registry 
examination) offered by VA to evaluate possible health risks associated 
with military service;
    (4) Counseling and care for sexual trauma as authorized under 38 
U.S.C 1720D;
    (5) Compensation and pension examinations requested by the Veterans 
Benefits Administration;
    (6) Care provided as part of a VA-approved research project 
authorized by 38 U.S.C. 7303;
    (7) Outpatient dental care provided under 38 U.S.C. 1712;
    (8) Readjustment counseling and related mental health services 
authorized under 38 U.S.C 1712A;
    (9) Emergency treatment paid for under 38 U.S.C. 1725 or 1728;
    (10) Care or services authorized under 38 U.S.C. 1720E for certain 
veterans regarding cancer of the head or neck;
    (11) Publicly announced VA public health initiatives (e.g., health 
fairs) or an outpatient visit solely consisting of preventive screening 
and immunizations (e.g. influenza immunization, pneumonococcal 
immunization, hypertension screening, hepatitis C screening, tobacco 
screening, alcohol screening, hyperlipidemia screening, breast cancer 
screening, cervical cancer screening, screening for colorectal cancer by 
fecal occult blood testing, and education about the risks and benefits 
of prostate cancer screening);
    (12) Smoking cessation counseling (individual and group); and
    (13) Laboratory services, flat film radiology services, and 
electrocardiograms.
    (f) Additional care not subject to outpatient copayment. Outpatient 
care is not subject to the outpatient copayment requirements under this 
section when provided to a veteran during a day for which the veteran is 
required to make a copayment for extended care services that were 
provided either directly by VA or obtained for VA by contract.

(Authority: 38 U.S.C. 1710)

[66 FR 63448, Dec. 6, 2001, as amended at 68 FR 60854, Oct. 24, 2003; 70 
FR 22596, May 2, 2005]



Sec. 17.110  Copayments for medication.

    (a) General. This section sets forth requirements regarding 
copayments for medications provided to veterans by VA.
    (b) Copayments. (1) Unless exempted under paragraph (c) of this 
section, a veteran is obligated to pay VA a copayment for each 30-day or 
less supply of medication provided by VA on an outpatient basis (other 
than medication administered during treatment). For the period from 
February 4, 2002 through December 31, 2002, the copayment amount is $7. 
The copayment amount for each calendar year thereafter will be 
established by using the Prescription Drug component of the Medical 
Consumer Price Index as follows: For each calendar year beginning after 
December 31, 2002, the Index as of the previous September 30 will be 
divided by the Index as of September 30, 2001. The ratio so obtained 
will be multiplied by the original copayment amount of $7. The copayment 
amount for the new calendar year will be this result, rounded down to 
the whole dollar amount.

    Note to paragraph (b)(1): Example for determining copayment amount. 
If the ratio of the Prescription Drug component of the Medical Consumer 
Price Index for September 30, 2003, to the corresponding Index for 
September 30, 2001, is 1.2242, then this ratio multiplied by the 
original copayment amount of $7 would equal $8.57, and the copayment 
amount for calendar year 2004, rounded down to the whole dollar amount, 
would be $8.

    (2) The total amount of copayments in a calendar year for a veteran 
enrolled in one of the priority categories 2 through 6 of VA's health 
care system (see Sec. 17.36) shall not exceed the cap established for 
the calendar year. The cap for calendar year 2002 is $840. If the 
copayment amount increases after calendar year 2002, the cap of $840 
shall be

[[Page 669]]

increased by $120 for each $1 increase in the copayment amount.
    (c) Medication not subject to the copayment requirements. The 
following are exempt from the copayment requirements of this section:
    (1) Medication for a veteran who has a service-connected disability 
rated 50% or more based on a service-connected disability or 
unemployability;
    (2) Medication for a veteran's service-connected disability;
    (3) Medication for a veteran whose annual income (as determined 
under 38 U.S.C. 1503) does not exceed the maximum annual rate of VA 
pension which would be payable to such veteran if such veteran were 
eligible for pension under 38 U.S.C. 1521;
    (4) Medication authorized under 38 U.S.C. 1710(e) for Vietnam-era 
herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf War 
veterans, or post-Persian Gulf War combat-exposed veterans;
    (5) Medication for treatment of sexual trauma as authorized under 38 
U.S.C. 1720D;
    (6) Medication for treatment of cancer of the head or neck 
authorized under 38 U.S.C. 1720E; and
    (7) Medications provided as part of a VA approved research project 
authorized by 38 U.S.C. 7303.

(Authority: 38 U.S.C. 501, 1710, 1720D, 1722A)

[66 FR 63451, Dec. 6, 2001]



Sec. 17.111  Copayments for extended care services.

    (a) General. This section sets forth requirements regarding 
copayments for extended care services provided to veterans by VA (either 
directly by VA or paid for by VA).
    (b) Copayments. (1) Unless exempted under paragraph (f) of this 
section, as a condition of receiving extended care services from VA, a 
veteran must agree to pay VA and is obligated to pay VA a copayment as 
specified by this section. A veteran has no obligation to pay a 
copayment for the first 21 days of extended care services that VA 
provided the veteran in any 12-month period (the 12-month period begins 
on the date that VA first provided extended care services to the 
veteran). However, for each day that extended care services are provided 
beyond the first 21 days, a veteran is obligated to pay VA the copayment 
amount set forth below to the extent the veteran has available 
resources. Available resources are based on monthly calculations, as 
determined under paragraph (d) of this section. The following sets forth 
the extended care services provided by VA and the corresponding 
copayment amount per day:
    (i) Adult day health care--$15.
    (ii) Domiciliary care--$5.
    (iii) Institutional respite care--$97.
    (iv) Institutional geriatric evaluation--$97.
    (v) Non-institutional geriatric evaluation--$15.
    (vi) Non-institutional respite care--$15.
    (vii) Nursing home care--$97.
    (2) For purposes of counting the number of days for which a veteran 
is obligated to make a copayment under this section, VA will count each 
day that adult day health care, non-institutional geriatric evaluation, 
and non-institutional respite care are provided and will count each full 
day and partial day for each inpatient stay except for the day of 
discharge.
    (c) Definitions. For purposes of this section:
    (1) Adult day health care is a therapeutic outpatient care program 
that provides medical services, rehabilitation, therapeutic activities, 
socialization, nutrition and transportation services to disabled 
veterans in a congregate setting.
    (2) Domiciliary care is defined in Sec. 17.30(b).
    (3) Extended care services means adult day health care, domiciliary 
care, institutional geriatric evaluation, noninstitutional geriatric 
evaluation, nursing home care, institutional respite care, and 
noninstitutional respite care.
    (4) Geriatric evaluation is a specialized, diagnostic/consultative 
service provided by an interdisciplinary team that is for the purpose of 
providing a comprehensive assessment, care plan, and extended care 
service recommendations.
    (5) Institutional means a setting in a hospital, domiciliary, or 
nursing home of overnight stays of one or more days.

[[Page 670]]

    (6) Noninstitutional means a service that does not include an 
overnight stay.
    (7) Nursing home care means the accommodation of convalescents or 
other persons who are not acutely ill and not in need of hospital care, 
but who require nursing care and related medical services, if such 
nursing care and medical services are prescribed by, or are performed 
under the general direction of, persons duly licensed to provide such 
care (nursing services must be provided 24 hours a day). Such term 
includes services furnished in skilled nursing care facilities. Such 
term excludes hospice care.
    (8) Respite care means care which is of limited duration, is 
furnished on an intermittent basis to a veteran who is suffering from a 
chronic illness and who resides primarily at home, and is furnished for 
the purpose of helping the veteran to continue residing primarily at 
home. (Respite providers temporarily replace the caregivers to provide 
services ranging from supervision to skilled care needs.)
    (d) Effect of the veteran's financial resources on obligation to pay 
copayment. (1) A veteran is obligated to pay the copayment to the extent 
the veteran and the veteran's spouse have available resources. For 
veterans who have been receiving extended care services for 180 days or 
less, their available resources are the sum of the income of the veteran 
and the veteran's spouse, minus the sum of the veterans allowance, the 
spousal allowance, and expenses. For veterans who have been receiving 
extended care services for 181 days or more, their available resources 
are the sum of the value of the liquid assets, the fixed assets, and the 
income of the veteran and the veteran's spouse, minus the sum of the 
veterans allowance, the spousal allowance, the spousal resource 
protection amount, and (but only if the veteran--has a spouse or 
dependents residing in the community who is not institutionalized) 
expenses. When a veteran is legally separated from a spouse, available 
resources do not include spousal income, expenses, and assets or a 
spousal allowance.
    (2) For purposes of determining available resources under this 
section:
    (i) Income means current income (including, but not limited to, 
wages and income from a business (minus business expenses), bonuses, 
tips, severance pay, accrued benefits, cash gifts, inheritance amounts, 
interest income, standard dividend income from non tax deferred 
annuities, retirement income, pension income, unemployment payments, 
worker's compensation payments, black lung payments, tort settlement 
payments, social security payments, court mandated payments, payments 
from VA or any other Federal programs, and any other income). The amount 
of current income will be stated in frequency of receipt, e.g., per 
week, per month.
    (ii) Expenses means basic subsistence expenses, including current 
expenses for the following: rent/mortgage for primary residence; vehicle 
payment for one vehicle; food for veteran, veteran's spouse, and 
veteran's dependents; education for veteran, veteran's spouse, and 
veteran's dependents; court-ordered payments of veteran or veteran's 
spouse (e.g., alimony, child-support); and including the average monthly 
expenses during the past year for the following: utilities and insurance 
for the primary residence; out-of-pocket medical care costs not 
otherwise covered by health insurance; health insurance premiums for the 
veteran, veteran's spouse, and veteran's dependents; and taxes paid on 
income and personal property.
    (iii) Fixed Assets means:
    (A) Real property and other non-liquid assets; except that this does 
not include--
    (1) Burial plots;
    (2) A residence if the residence is:
    (i) The primary residence of the veteran and the veteran is 
receiving only noninstitutional extended care service; or
    (ii) The primary residence of the veteran's spouse or the veteran's 
dependents (if the veteran does not have a spouse) if the veteran is 
receiving institutional extended care service.
    (3) A vehicle if the vehicle is:
    (i) The vehicle of the veteran and the veteran is receiving only 
noninstitutional extended care service; or
    (ii) The vehicle of the veteran's spouse or the veteran's dependents 
(if

[[Page 671]]

the veteran does not have a spouse) if the veteran is receiving 
institutional extended care service.
    (B) [Reserved]
    (iv) Liquid assets means cash, stocks, dividends received from IRA, 
401K's and other tax deferred annuities, bonds, mutual funds, retirement 
accounts (e.g., IRA, 401Ks, annuities), art, rare coins, stamp 
collections, and collectibles of the veteran, spouse, and dependents. 
This includes household and personal items (e.g., furniture, clothing, 
and jewelry) except when the veteran's spouse or dependents are living 
in the community.
    (v) Spousal allowance is an allowance of $20 per day that is 
included only if the spouse resides in the community (not 
institutionalized).
    (vi) Spousal resource protection amount means the value of liquid 
assets but not to exceed $89,280 if the spouse is residing in the 
community (not institutionalized).
    (vii) Veterans allowance is an allowance of $20 per day.
    (3) The maximum amount of a copayment for any month equals the 
copayment amount specified in paragraph (b)(1) of this section 
multiplied by the number of days in the month. The copayment for any 
month may be less than the amount specified in paragraph (b)(1) of this 
section if the veteran provides information in accordance with this 
section to establish that the copayment should be reduced or eliminated.
    (e) Requirement to submit information. (1) Unless exempted under 
paragraph (f) of this section, a veteran must submit to a VA medical 
facility a completed VA Form 10-10EC and documentation requested by the 
Form at the following times:
    (i) At the time of initial request for an episode of extended care 
services;
    (ii) At the time of request for extended care services after a break 
in provision of extended care services for more than 30 days; and
    (iii) Each year at the time of submission to VA of VA Form 10-10EZ.
    (2) When there are changes that might change the copayment 
obligation (i.e., changes regarding marital status, fixed assets, liquid 
assets, expenses, income (when received), or whether the veteran has a 
spouse or dependents residing in the community), the veteran must report 
those changes to a VA medical facility within 10 days of the change.
    (f) Veterans and care that are not subject to the copayment 
requirements. The following veterans and care are not subject to the 
copayment requirements of this section:
    (1) A veteran with a compensable service-connected disability;
    (2) A veteran whose annual income (determined under 38 U.S.C. 1503) 
is less than the amount in effect under 38 U.S.C. 1521(b);
    (3) Care for a veteran's noncompensable zero percent service-
connected disability;
    (4) An episode of extended care services that began on or before 
November 30, 1999;
    (5) Care authorized under 38 U.S.C. 1710(e) for Vietnam-era 
herbicide-exposed veterans, radiation-exposed veterans, Persian Gulf War 
veterans, or post-Persian Gulf War combat-exposed veterans;
    (6) Care for treatment of sexual trauma as authorized under 38 
U.S.C. 1720D; or
    (7) Care or services authorized under 38 U.S.C. 1720E for certain 
veterans regarding cancer of the head or neck.
    (g) VA Form 10-10EC.


[[Page 672]]


[GRAPHIC] [TIFF OMITTED] TR01JY04.074


[[Page 673]]


[GRAPHIC] [TIFF OMITTED] TR01JY04.075


[[Page 674]]


[GRAPHIC] [TIFF OMITTED] TR01JY04.076


                                * * * * *

(Authority: 38 U.S.C. 101(28), 501, 1701(7), 1710, 1710B, 1720B, 1720D, 
1722A)

[67 FR 35040, May 17, 2002; as amended at 69 FR 39846, July 1, 2004]

                               Ceremonies



Sec. 17.112  Services or ceremonies on Department of Veterans Affairs 
hospital or center reservations.

    (a) Services or ceremonies on Department of Veterans Affairs 
hospital or center reservations are subject to the following 
limitations:

[[Page 675]]

    (1) All activities must be conducted with proper decorum, and not 
interfere with the care and treatment of patients. Organizations must 
provide assurance that their members will obey all rules in effect at 
the hospital or center involved, and act in a dignified and proper 
manner;
    (2) Partisan activities are inappropriate and all activities must be 
nonpartisan in nature. An activity will be considered partisan and 
therefore inappropriate if it includes commentary in support of, or in 
opposition to, or attempts to influence, any current policy of the 
Government of the United States or any State of the United States. If 
the activity is closely related to partisan activities being conducted 
outside the hospital or center reservations, it will be considered 
partisan and therefore inappropriate.
    (b) Requests for permission to hold services or ceremonies will be 
addressed to the Secretary, or the Director of the Department of 
Veterans Affairs hospital or center involved. Such applications will 
describe the proposed activity in sufficient detail to enable a 
determination as to whether it meets the standards set forth in 
paragraph (a) of this section. If permission is granted, the Director of 
the hospital or center involved will assign an appropriate time, and 
render assistance where appropriate. No organization will be given 
exclusive permission to use the hospital or center reservation on any 
particular occasion. Where several requests are received for separate 
activities, the Director will schedule each so as to avoid overlapping 
or interference, or require appropriate modifications in the scope or 
timing of the activity.

[35 FR 2389, Feb. 3, 1970. Redesignated at 61 FR 21966, May 13, 1996, 
and further redesignated at 67 FR 35040, May 17, 2002]

   Reimbursement for Loss By Natural Disaster of Personal Effects of 
                  Hospitalized or Nursing Home Patients



Sec. 17.113  Conditions of custody.

    When the personal effects of a patient who has been or is 
hospitalized or receiving nursing home care in a Department of Veterans 
Affairs hospital or center were or are duly delivered to a designated 
location for custody and loss of such personal effects has occurred or 
occurs by fire, earthquake, or other natural disaster, either during 
such storage or during laundering, reimbursement will be made as 
provided in Sec. Sec. 17.113 and 17.114.

[39 FR 1843, Jan. 15, 1974. Redesignated and amended at 61 FR 21966, 
21967, May 13, 1996, and further redesignated at 67 FR 35039, May 17, 
2002]



Sec. 17.114  Submittal of claim for reimbursement.

    The claim for reimbursement for personal effects damaged or 
destroyed will be submitted by the patient to the Director. The patient 
will separately list and evaluate each article with a notation as to its 
condition at the time of the fire, earthquake, or other natural disaster 
i.e. whether new, worn, etc. The date of the fire, earthquake, or other 
natural disaster will be stated. It will be certified by a responsible 
official that each article listed was stored in a designated location at 
the time of loss by fire, earthquake, or other natural disaster or was 
in process of laundering. The patient will further state whether the 
loss of each article was complete or partial, permitting of some further 
use of the article. The responsible official will certify that the 
amount of reimbursement claimed on each article of personal effects is 
not in excess of the fair value thereof at time of loss. The 
certification will be prepared in triplicate, signed by the responsible 
officer who made it, and countersigned by the Director of the medical 
center. After the above papers have been secured, voucher will be 
prepared, signed, and certified, and forwarded to the Fiscal Officer for 
approval, payment to be made in accordance with fiscal procedure. The 
original list of property and certificate are to be attached to voucher.

[39 FR 1843, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984. 
Redesignated at 61 FR 21966, May 13, 1996, and further redesignated at 
67 FR 35039, May 17, 2002]

[[Page 676]]



Sec. 17.115  Claims in cases of incompetent patients.

    Where the patient is insane and incompetent, the patient will not be 
required to make claim for reimbursement for personal effects lost by 
fire, earthquake, or other natural disaster as required under the 
provisions of Sec. 17.113. The responsible official will make claim for 
the patient, adding the certification in all details as provided for in 
Sec. 17.113. After countersignature of this certification by the 
Director, payment will be made as provided in Sec. 17.113, and the 
amount thereby disbursed will be turned over to the Director for 
custody.

[39 FR 1843, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984. 
Redesignated and amended at 61 FR 21966, 21967, May 13, 1996, and 
further redesignated at 67 FR 35039, May 17, 2002]

   Reimbursement to Employees for the Cost of Repairing or Replacing 
  Certain Personal Property Damaged or Destroyed by Patients or Members



Sec. 17.116  Adjudication of claims.

    Claims comprehended. Claims for reimbursing Department of Veterans 
Affairs employees for cost of repairing or replacing their personal 
property damaged or destroyed by patients or members while such 
employees are engaged in the performance of their official duties will 
be adjudicated by the Director of the medical center concerned. Such 
claims will be considered under the following conditions, both of which 
must have existed and, if either one is lacking, reimbursement or 
payment for the cost or repair of the damaged article will not be 
authorized:
    (a) The claim must be for an item of personal property normally used 
by the employee in his or her day to day employment, e.g., eyeglasses, 
hearing aids, clothing, etc., and,
    (b) Such personal property was damaged or destroyed by a patient or 
domiciliary member while the employee was engaged in the performance of 
official duties.

Reimbursement or payment as provided in this paragraph will be made in a 
fair and reasonable amount, taking into consideration the condition and 
reasonable value of the article at the time it was damaged or destroyed.

[28 FR 5083, May 22, 1963, as amended at 39 FR 1843, Jan. 15, 1974; 49 
FR 5616, Feb. 14, 1984. Redesignated and amended at 61 FR 21965, May 13, 
1996, and further redesignated at 67 FR 35039, May 17, 2002]

   Payment and Reimbursement of the Expenses of Medical Services Not 
                          Previously Authorized



Sec. 17.120  Payment or reimbursement of the expenses of hospital care 
and other medical services not previously authorized.

    To the extent allowable, payment or reimbursement of the expenses of 
care, not previously authorized, in a private or public (or Federal) 
hospital not operated by the Department of Veterans Affairs, or of any 
medical services not previously authorized including transportation 
(except prosthetic appliances, similar devices, and repairs) may be paid 
on the basis of a claim timely filed, under the following circumstances:
    (a) For veterans with service connected disabilities. Care or 
services not previously authorized were rendered to a veteran in need of 
such care or services:
    (1) For an adjudicated service-connected disability;
    (2) For nonservice-connected disabilities associated with and held 
to be aggravating an adjudicated service-connected disability;
    (3) For any disability of a veteran who has a total disability 
permanent in nature resulting from a service-connected disability (does 
not apply outside of the States, Territories, and possessions of the 
United State, the District of Columbia, and the Commonwealth of Puerto 
Rico);
    (4) For any illness, injury or dental condition in the case of a 
veteran who is participating in a rehabilitation program under 38 U.S.C. 
ch. 31 and who is medically determined to be in need of hospital care or 
medical services for any of the reasons enumerated in Sec. 17.48(j); 
and


(Authority: 38 U.S.C. 1724, 1728)

    (b) In a medical emergency. Care and services not previously 
authorized were

[[Page 677]]

rendered in a medical emergency of such nature that delay would have 
been hazardous to life or health, and
    (c) When Federal facilities are unavailable. VA or other Federal 
facilities were not feasibly available, and an attempt to use them 
beforehand or obtain prior VA authorization for the services required 
would not have been reasonable, sound, wise, or practicable, or 
treatment had been or would have been refused.

(Authority: 38 U.S.C. 1724, 1728, 7304)

[39 FR 1844, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984; 51 
FR 8672, Mar. 13, 1986; 56 FR 3422, Jan. 30, 1991. Redesignated at 61 FR 
21966, May 13, 1996]



Sec. 17.121  Limitations on payment or reimbursement of the costs of 
emergency hospital care and medical services not previously authorized.

    Claims for payment or reimbursement of the costs of emergency 
hospital care or medical services not previously authorized will not be 
approved for any period beyond the date on which the medical emergency 
ended. For the purpose of payment or reimbursement of the expense of 
emergency hospital care or medical services not previously authorized, 
an emergency shall be deemed to have ended at that point when a VA 
physician has determined that, based on sound medical judgment, a 
veteran:
    (a) Who received emergency hospital care could have been transferred 
from the non-VA facility to a VA medical center for continuation of 
treatment for the disability, or
    (b) Who received emergency medical services, could have reported to 
a VA medical center for continuation of treatment for the disability.

From that point on, no additional care in a non-VA facility will be 
approved for payment by VA.

(Authority: 38 U.S.C. 501(c)(1))

[49 FR 15548, Apr. 19, 1984. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.122  Payment or reimbursement of the expenses of repairs to 

prosthetic appliances and similar devices furnished without prior 
authorization.

    The expenses of repairs to prosthetic appliances, or similar 
appliances, therapeutic or rehabilitative aids or devices, furnished 
without prior authorization, but incurred in the care of an adjudicated 
service-connected disability (or, in the case of a veteran who is 
participating in a rehabilitation program under 38 U.S.C. ch. 31 and who 
is determined to be in need of the repairs for any of the reasons 
enumerated in Sec. 17.47(g)) may be paid or reimbursed on the basis of 
a timely filed claim, if


(Authority: 38 U.S.C. 1728)

    (a) Obtaining the repairs locally was necessary, expedient, and not 
a matter of preference to using authorized sources, and
    (b) The costs were reasonable, except that where it is determined 
the costs were excessive or unreasonable, the claim may be allowed to 
the extent the costs were deemed reasonable and disallowed as to the 
remainder. In no circumstances will any claim for repairs be allowed to 
the extent the costs exceed $125.

(Authority: 38 U.S.C. 1728, 7304)

[33 FR 19011, Dec. 20, 1968, as amended at 49 FR 5616, Feb. 14, 1984; 51 
FR 8672, Mar. 13, 1986. Redesignated and amended at 61 FR 21966, 21967, 
May 13, 1996]



Sec. 17.123  Claimants.

    A claim for payment or reimbursement of services not previously 
authorized may be filed by the veteran who received the services (or 
his/her guardian) or by the hospital, clinic, or community resource 
which provided the services, or by a person other than the veteran who 
paid for the services.

[39 FR 1844, Jan. 15, 1974, as amended at 45 FR 53807, Aug. 13, 1980. 
Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.124  Preparation of claims.

    Claims for costs of services not previously authorized shall be on 
such forms as shall be prescribed and shall include the following:
    (a) The claimant shall specify the amount claimed and furnish bills, 
vouchers, invoices, or receipts or other documentary evidence 
establishing that such amount was paid or is owed, and

[[Page 678]]

    (b) The claimant shall provide an explanation of the circumstances 
necessitating the use of community medical care, services, or supplies 
instead of Department of Veterans Affairs care, services, or supplies, 
and
    (c) The claimant shall furnish such other evidence or statements as 
are deemed necessary and requested for adjudication of the claim.

[33 FR 19011, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974. 
Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.125  Where to file claims.

    Claims for payment or reimbursement of the expenses of services not 
previously authorized should be filed as follows:
    (a) For services rendered in the U.S. Claims for the expenses of 
care or services rendered in the United States, including the 
Territories or possessions of the United States, should be filed with 
the Chief, Outpatient Service, or Clinic Director of the VA facility 
designated as a clinic or jurisdiction which serves the region in which 
the care or services were rendered, and


(Authority: 38 U.S.C. 7304)

    (b) For services rendered in the Philippines. Claims for the 
expenses of care or services rendered in the Republic of the Philippines 
should be filed with the Department of Veterans Affairs Outpatient 
Clinic (358/00), 2201 Roxas Blvd., Pasay City, 1300, Republic of the 
Philippines, and
    (c) For services rendered in Canada. Claims for the expenses of care 
or services rendered in Canada should be filed with the Chief, Medical 
Administration Service (136), Department of Veterans Affairs Medical 
Center, White River Junction, VT 05009, and
    (d) For services rendered in other foreign countries. Claims for the 
expenses of care or services rendered in other foreign countries must be 
mailed to the Health Administration Center, P.O. Box 65023, Denver, CO 
80206-3023.


(Authority: 38 U.S.C. 7304)

    (e) For services rendered in Puerto Rico. Claims for the expenses of 
care or services rendered in the Commonwealth of Puerto Rico should be 
filed with the Department of Veterans Affairs Medical and Regional 
Office Center, San Juan, PR.

[33 FR 19011, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974; 45 
FR 53807, Aug. 13, 1980; 51 FR 8673, Mar. 13, 1986. Redesignated and 
amended at 61 FR 21966, 21967, May 13, 1996]



Sec. 17.126  Timely filing.

    Claims for payment or reimbursement of the expenses of medical care 
or services not previously authorized must be filed within the following 
time limits:
    (a) A claim must be filed within 2 years after the date the care or 
services were rendered (and in the case of continuous care, payment will 
not be made for any part of the care rendered more than 2 years prior to 
filing claim), or
    (b) In the case of case or services rendered prior to a VA 
adjudication allowing service-connection:
    (1) The claim must be filed within 2 years of the date the veteran 
was notified by VA of the allowance of the award of service-connection.
    (2) VA payment may be made for care related to the service-connected 
disability received only within a 2-year period prior to the date the 
veteran filed the original or reopened claim which resulted in the award 
of service-connection but never prior to the effective date of the award 
of service-connection within that 2-year period.
    (3) VA payment will never be made for any care received beyond this 
2-year period whether service connected or not.

(Authority: 38 U.S.C. 7304)

[33 FR 19012, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974; 45 
FR 53807, Aug. 13, 1980; 51 FR 8673, Mar. 13, 1986. Redesignated at 61 
FR 21966, May 13, 1996]



Sec. 17.127  Date of filing claims.

    The date of filing any claim for payment or reimbursement of the 
expenses of medical care and services not previously authorized shall be 
the postmark date of a formal claim, or the date of any preceding 
telephone call,

[[Page 679]]

telegram, or other communication constituting an informal claim.

[39 FR 1844, Jan. 15, 1974. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.128  Allowable rates and fees.

    When it has been determined that a veteran has received public or 
private hospital care or outpatient medical services, the expenses of 
which may be paid under Sec. 17.120 of this part, the payment of such 
expenses shall be paid in accordance with Sec. Sec. 17.55 and 17.56 of 
this part.

(Authority: Section 233, Pub. L. 99-576)

[63 FR 39515, July 23, 1998]



Sec. 17.129  Retroactive payments prohibited.

    When a claim for payment or reimbursement of expenses of services 
not previously authorized has not been timely filed in accordance with 
the provisions of Sec. 17.126, the expenses of any such care or 
services rendered prior to the date of filing the claim shall not be 
paid or reimbursed. In no event will a bill or claim be paid or allowed 
for any care or services rendered prior to the effective date of any 
law, or amendment to the law, under which eligibility for the medical 
services at Department of Veterans Affairs expense has been established.

[39 FR 1844, Jan. 15, 1974. Redesignated and amended at 61 FR 21966, 
21968, May 13, 1996]



Sec. 17.130  Payment for treatment dependent upon preference prohibited.

    No reimbursement or payment of services not previously authorized 
will be made when such treatment was procured through private sources in 
preference to available Government facilities.

[39 FR 1844, Jan. 15, 1974. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.131  Payment of abandoned claims prohibited.

    Any informal claim for the payment or reimbursement of medical 
expenses which is not followed by a formal claim, or any formal claim 
which is not followed by necessary supporting evidence, within 1 year 
from the date of the request for a formal claim or supporting evidence 
shall be deemed abandoned, and payment or reimbursement shall not be 
authorized on the basis of such abandoned claim or any future claim for 
the same expenses. For the purpose of this section, time limitations 
shall be computed from the date following the date of request for a 
formal claim or supporting evidence.

[33 FR 19012, Dec. 20, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.132  Appeals.

    When any claim for payment or reimbursement of expenses of medical 
care or services rendered in non-Department of Veterans Affairs 
facilities or from non-Department of Veterans Affairs resources has been 
disallowed, the claimant shall be notified of the reasons for the 
disallowance and of the right to initiate an appeal to the Board of 
Veterans Appeals by filing a Notice of Disagreement, and shall be 
furnished such other notices or statements as are required by part 19 of 
this chapter, governing appeals.

[33 FR 19012, Dec. 20, 1968. Redesignated at 61 FR 21966, May 13, 1996]

                    Reconsideration of Denied Claims



Sec. 17.133  Procedures.

    (a) Scope. This section sets forth reconsideration procedures 
regarding claims for benefits administered by the Veterans Health 
Administration (VHA). These procedures apply to claims for VHA benefits 
regarding decisions that are appealable to the Board of Veterans' 
Appeals (e.g., reimbursement for non-VA care not authorized in advance, 
reimbursement for beneficiary travel expenses, reimbursement for home 
improvements or structural alterations, etc.). These procedures do not 
apply when other regulations providing reconsideration procedures do 
apply (this includes CHAMPVA (38 CFR 17.270 through 17.278) and spina 
bifida (38 CFR 17.904) and any other regulations that contain 
reconsideration procedures). Also, these procedures do not apply to 
decisions made outside of VHA, such as decisions made by the Veterans 
Benefits Administration and adopted by VHA for decisionmaking. These 
procedures are not mandatory,

[[Page 680]]

and a claimant may choose to appeal the denied claim to the Board of 
Veterans' Appeals pursuant to 38 U.S.C. 7105 without utilizing the 
provisions of this section. Submitting a request for reconsideration 
shall constitute a notice of disagreement for purposes of filing a 
timely notice of disagreement under 38 U.S.C. 7105(b).
    (b) Process. An individual who disagrees with the initial decision 
denying the claim in whole or in part may obtain reconsideration under 
this section by submitting a reconsideration request in writing to the 
Director of the healthcare facility of jurisdiction within one year of 
the date of the initial decision. The reconsideration decision will be 
made by the immediate supervisor of the initial VA decision-maker. The 
request must state why it is concluded that the decision is in error and 
must include any new and relevant information not previously considered. 
Any request for reconsideration that does not identify the reason for 
the dispute will be returned to the sender without further 
consideration. The request for reconsideration may include a request for 
a meeting with the immediate supervisor of the initial VA decision-
maker, the claimant, and the claimant's representative (if the claimant 
wishes to have a representative present). Such a meeting shall only be 
for the purpose of discussing the issues and shall not include formal 
procedures (e.g., presentation, cross-examination of witnesses, etc.). 
The meeting will be taped and transcribed by VA if requested by the 
claimant and a copy of the transcription shall be provided to the 
claimant. After reviewing the matter, the immediate supervisor of the 
initial VA decision-maker shall issue a written decision that affirms, 
reverses, or modifies the initial decision.

    Note to Sec. 17.133: The final decision of the immediate supervisor 
of the initial VA decision-maker will inform the claimant of further 
appellate rights for an appeal to the Board of Veterans' Appeals.

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0600)

(Authority: 38 U.S.C. 511, 38 U.S.C. 7105)

[64 FR 44660, Aug. 17, 1999]

                        Delegations of Authority



Sec. 17.140  Authority to adjudicate reimbursement claims.

    The Department of Veterans Affairs medical installation having 
responsibility for the fee basis program in the region or territory 
(including the Republic of the Philippines) served by such medical 
installation shall adjudicate all claims for the payment or 
reimbursement of the expenses of services not previously authorized 
rendered in the region or territory.

[39 FR 1844, Jan. 15, 1974. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.141  Authority to adjudicate foreign reimbursement claims.

    The Health Administration Center in Denver, CO, shall adjudicate 
claims for the payment or reimbursement of the expenses of services not 
previously authorized rendered in any foreign country except Canada 
which will be referred to the VA Medical Center in White River Junction, 
VT, and the Republic of the Philippines which will be referred to the VA 
Outpatient Clinic in Pasay City.

[39 FR 1844, Jan. 15, 1974, as amended at 45 FR 6938, Jan. 31, 1980. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996]



Sec. 17.142  Authority to approve sharing agreements, contracts for 

scarce medical specialist services and contracts for other medical 
services.

    The Under Secretary for Health is delegated authority to enter into
    (a) Sharing agreements authorized under the provisions of 38 U.S.C. 
8153 and Sec. 17.210 and which may be negotiated pursuant to the 
provisions of 41 CFR 8-3.204(c);
    (b) Contracts with schools and colleges of medicine, osteopathy, 
dentistry, podiatry, optometry, and nursing, clinics, and any other 
group or individual capable of furnishing such services to provide 
scarce medical specialist services at Department of Veterans Affairs 
health care facilities (including, but not limited to, services of 
physicians, dentists, podiatrists, optometrists, nurses, physicians' 
assistants, expanded function dental auxiliaries, technicians, and other 
medical support personnel); and

[[Page 681]]

    (c) When a sharing agreement or contract for scarce medical 
specialist services is not warranted, contracts authorized under the 
provisions of 38 U.S.C. 513 for medical and ancillary services. The 
authority under this section generally will be exercised by approval of 
proposed contracts or agreements negotiated at the health care facility 
level. Such approval, however, will not be necessary in the case of any 
purchase order or individual authorization for which authority has been 
delegated in Sec. 17.99. All such contracts and agreements will be 
negotiated pursuant to 41 CFR chapters 1 and 8.

(Authority: 38 U.S.C. 512, 513, 7409, 8153)

[45 FR 6938, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996, 
as amended at 62 FR 17072, Apr. 9, 1997]

              Transportation of Claimants and Beneficiaries



Sec. 17.143  Transportation of claimants and beneficiaries.

    (a) If travel will be provided, it shall be paid in accordance with 
38 U.S.C. 111 and this section.


(Authority: 38 U.S.C. 111)

    (b) Transportation at Government expense shall be authorized for the 
following categories of VA beneficiaries, subject to the deductible 
established in Sec. 17.101, ``Limitations'':
    (1) A veteran or other person traveling in connection with treatment 
for a service-connected disability (irrespective of percent of 
disability).
    (2) A veteran with a service-connected disability rated at 30 
percent or more, for treatment of any condition.
    (3) A veteran receiving VA pension benefits.
    (4) A veteran whose annual income, as determined under 38 U.S.C. 
1503, does not exceed the maximum annual rate of pension which would be 
payable if the veteran were eligible for pension, or who is unable to 
defray the expenses of travel.
    (c) Transportation at Government expense shall be authorized for the 
following VA beneficiaries without their being subject to the deductible 
established in Sec. 17.101, ``Limitations'':
    (1) A veteran traveling in connection with a scheduled compensation 
or pension examination.
    (2) A veteran or other person traveling by a specialized mode of 
transportation such as an ambulance, ambulette, air ambulance, 
wheelchair van, or other vehicle specially designed to transport 
disabled individuals provided:
    (i) A physician determines that the special mode of travel is 
medically required;
    (ii) The person is unable to defray the expenses of the travel; and
    (iii) The travel is authorized in advance or was undertaken in 
connection with a medical emergency such that delay to obtain 
authorization would be hazardous to the person's life or health.
    (d) For the purposes of this section, the term ``other person'' 
refers to:
    (1) An attendant when it has been determined in advance that the 
beneficiary's physical or mental condition requires the presence of an 
attendant.
    (2) A dependent or survivor receiving care in a VA facility under 38 
U.S.C. 1713.
    (3) Members of the veteran's immediate family, the veteran's legal 
guardian, or the individual in whose household the veteran certifies an 
intention to live, when the veteran is receiving services under 38 
U.S.C. 1701(6)(B).
    (e) A veteran or other person shall be considered unable to defray 
the expenses of travel if:
    (1) Annual income for the year immediately preceding the application 
for benefits does not exceed the maximum annual rate of pension which 
would be payable if the person were eligible for pension; or
    (2) The person is able to demonstrate that due to circumstances such 
as loss of employment, or incurrence of a disability, income in the year 
of application will not exceed the maximum annual rate of pension which 
would be payable if the person were eligible for pension; or
    (3) The person has a service-connected disability rated at least 30 
percent; or

[[Page 682]]

    (4) The person is traveling in connection with treatment of a 
service-connected disability.


(Authority: 38 U.S.C. 111)

    (f) Admission. (1) Admission of applicants under 38 U.S.C. 1710, 38 
CFR 17.46 and 17.84.
    (2) Hospital admission for observation and examination.
    (g) Readmissions. Hospital readmissions, when medically determined 
necessary to observe progress, modify treatment or diet, etc.
    (h) Preparatory and posthospital care. When necessary to the 
provision of medical services furnished veterans under 38 U.S.C. 
1712(a)(5), and 1717.
    (i) Authorized absence. Transportation will not be furnished 
beneficiaries who are on authorized absence, to depart from or return to 
Department of Veterans Affairs health care facilities, except that if a 
patient in such status develops an emergent condition and the patient 
(or guardian, if there be one) is without funds to return such patient 
to a Department of Veterans Affairs health care facility, travel may be 
approved by the Director of the Department of Veterans Affairs facility 
to which the patient is to be returned.
    (j) Discharge. (1) Subject to the limitations of this section, upon 
regular discharge from hospitalization for treatment, observation and 
examination, or from nursing home care, return transportation to the 
point from which the beneficiary had proceeded; or to another point if 
no additional expense be thereby caused the Government.
    (2) A patient in a terminal condition may be discharged to his or 
her home or transferred to a hospital suitable and nearer that home, 
regardless of whether travel so required exceeds that covered in 
proceeding to the hospital of original admission.
    (3) Transportation may be furnished to a point other than that from 
which a patient had proceeded to a hospital upon a showing of bona fide 
change of address of the patient's residence during the period of 
hospital care.
    (4) No return transportation will be supplied a patient who receives 
an irregular discharge from hospital or nursing home care, unless the 
patient executes an affidavit of inability to defray the expense of 
return transportation.
    (k) Outpatient services. (1) Outpatient physical examination, 
subject to limitations described in 38 U.S.C. 111(c) and 38 CFR 17.144, 
``Limitations''.
    (2) Outpatient treatment for service-connected conditions, including 
adjunct treatment thereof; for veterans under Sec. 17.93 (a)(2) and 
(d)(3); and for nonservice-connected disabilities of veterans who are 
participating in a rehabilitation program under 38 U.S.C. chapter 31 and 
who are medically determined to be in need of medical services for any 
of the reasons enumerated in 17.47(j), subject to limitations described 
in Sec. 17.144, ``Limitations''.


(Authority: 38 U.S.C. 111(b))

    (l) Accessories of transportation. The accessories of 
transportation, meals and lodging en route, and accompaniment by an 
attendant or attendants, may be authorized when determined necessary for 
the travel.
    (m) Furnishing transportation and other expenses incident thereto. 
In furnishing transportation and other expenses incident thereto, as 
defined, VA may (1) issue requests for transportation, meals, and 
lodging; or (2) reimburse the claimant, beneficiary or representative, 
for payment made for such purpose, upon due certification of vouchers 
submitted therefor.

The provisions of 38 U.S.C. 111 and 38 CFR 17.143, 17.144 and 17.145 
will be complied with in all instances when transportation costs are 
claimed.


(Authority: 38 U.S.C. 111)

    (n) Transportation of other than Department of Veterans Affairs 
beneficiaries. Transportation of beneficiaries of other Federal 
agencies, incident to medical services rendered upon requests of those 
agencies, will not be furnished by the Department of Veterans Affairs, 
except that facility vehicles may be used subject to reimbursement, and 
with the exception of beneficiaries of the Bureau of Old Age and 
Survivors Insurance in the Philippines on a reimbursable basis under 
agreement with that agency. Transportation incident to medical services 
rendered allied beneficiaries under agreement

[[Page 683]]

will be subject to reimbursement by the governments concerned.

[21 FR 10387, Dec. 28, 1956]

    Editorial Note: For Federal Register citations affecting Sec. 
17.143, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 17.144  Limitations.

    (a) VA shall deduct from amounts payable to persons under Sec. 
17.100(b), an amount equal to $3 for each one-way trip to a VA facility, 
up to a maximum of $18 in any calendar month. Persons required to make 
more than six one-way visits per calendar month will receive full travel 
reimbursement after the $18 cap is met.
    (b) The provisions of paragraph (a) of this section may be waived 
when imposition of the deductible would cause severe financial hardship. 
Loss of employment, or sudden illness or disability causing the 
beneficiary's income in the year of application to fall below the 
maximum level of VA pension, shall be deemed to constitute severe 
financial hardship.
    (c) Transportation will not be authorized for the cost of travel by 
taxi or a hired car for visually impaired veterans (as a special mode), 
or by privately owned vehicle in any amount in excess of the cost of 
such travel by other forms of public transportation unless public 
transportation is not reasonably accessible or would be medically 
inadvisable.
    (d) Transportation will not be authorized for the cost of travel in 
excess of the actual expense incurred by any person as certified by that 
person in writing.

(Authority: 38 U.S.C. 111)

[56 FR 52476, Oct. 21, 1991. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.145  Approval of unauthorized travel of claimants and 
beneficiaries.

    (a) Payment may be approved for travel performed under Sec. 
17.143(a) through (g) without prior authorization only in those cases 
where the Department of Veterans Affairs determines that there was a 
need for prompt medical care which was approved and:
    (1) The circumstances prevented a request for prior travel 
authorization, or
    (2) Due to Department of Veterans Affairs delay or error prior 
authorization for travel was not given, or
    (3) There was a justifiable lack of knowledge on the part of a third 
party acting for the veteran that a request for prior authorization was 
necessary.
    (b) In other cases, payment may be approved for such travel without 
prior authorization only upon a finding by the Secretary or designee 
that failure to secure prior authorization was justified.

(Authority: 38 U.S.C. 111)

[29 FR 11183, Aug. 4, 1964, as amended at 45 FR 6938, Jan. 31, 1980. 
Redesignated at 56 FR 52475, Oct. 21, 1991, and further redesignated at 
61 FR 21966, May 13, 1996, as amended at 62 FR 17072, Apr. 9, 1997]

              Prosthetic, Sensory, and Rehabilitative Aids



Sec. 17.149  Sensori-neural aids.

    (a) Notwithstanding any other provision of this part, VA will 
furnish needed sensori-neural aids (i.e., eyeglasses, contact lenses, 
hearing aids) only to veterans otherwise receiving VA care or services 
and only as provided in this section.
    (b) VA will furnish needed sensori-neural aids (i.e., eyeglasses, 
contact lenses, hearing aids) to the following veterans:
    (1) Those with a compensable service-connected disability;
    (2) Those who are former prisoners of war;
    (3) Those awarded a Purple Heart;
    (4) Those in receipt of benefits under 38 U.S.C. 1151;
    (5) Those in receipt of increased pension based on the need for 
regular aid and attendance or by reason of being permanently housebound;
    (6) Those who have a visual or hearing impairment that resulted from 
the existence of another medical condition for which the veteran is 
receiving VA care, or which resulted from treatment of that medical 
condition;
    (7) Those with a significant functional or cognitive impairment 
evidenced by deficiencies in activities of

[[Page 684]]

daily living, but not including normally occurring visual or hearing 
impairments; and
    (8) Those visually or hearing impaired so severely that the 
provision of sensori-neural aids is necessary to permit active 
participation in their own medical treatment.
    (c) VA will furnish needed hearing aids to those veterans who have 
service-connected hearing disabilities rated 0 percent if there is 
organic conductive, mixed, or sensory hearing impairment, and loss of 
pure tone hearing sensitivity in the low, mid, or high-frequency range 
or a combination of frequency ranges which contribute to a loss of 
communication ability; however, hearing aids are to be provided only as 
needed for the service-connected hearing disability.

(Authority: 38 U.S.C. 501,1707(b)

[62 FR 30242, June 3, 1997, as amended at 69 FR 33575, June 16, 2004]



Sec. 17.150  Prosthetic and similar appliances.

    Artificial limbs, braces, orthopedic shoes, hearing aids, 
wheelchairs, medical accessories, similar appliances including invalid 
lifts and therapeutic and rehabilitative devices, and special clothing 
made necessary by the wearing of such appliances, may be purchased, made 
or repaired for any veteran upon a determination of feasibility and 
medical need, provided:
    (a) As part of outpatient care. The appliances or repairs are a 
necessary part of outpatient care for which the veteran is eligible 
under 38 U.S.C. 1712 and 38 CFR 17.93 (or a necessary part of outpatient 
care authorized under Sec. 17.94) or
    (b) As part of hospital care. The appliances or repairs are a 
necessary part of inpatient care for any service-connected disability or 
any nonservice-connected disability, if:
    (1) The nonservice-connected disability is associated with an 
aggravating a service-connected disability, or
    (2) The nonservice-connected disability is one for which hospital 
admission was authorized, or
    (3) The nonservice-connected disability is associated with and 
aggravating a nonservice-connected disability for which hospital 
admission was authorized, or
    (4) The nonservice-connected disability is one for which treatment 
may be authorized under the provisions of Sec. 17.48(f), or
    (c) As part of domiciliary care. The appliances or repairs are 
necessary for continued domiciliary care, or are necessary to treat a 
member's service-connected disability, or nonservice-connected 
disability associated with and aggravating a service-connected 
disability, or
    (d) As part of nursing home care. The appliances or repairs are a 
necessary part of nursing home care furnished in facilities under the 
direct and exclusive jurisdiction of the Department of Veterans Affairs.

[32 FR 13816, Oct. 4, 1967, as amended at 33 FR 12315, Aug. 31, 1968; 34 
FR 9341, June 13, 1969; 35 FR 17948, Nov. 21, 1970; 54 FR 34983, Aug. 
23, 1989. Redesignated and amended at 61 FR 21966, 21968, May 13, 1996]



Sec. 17.151  Invalid lifts for recipients of aid and attendance 
allowance or special monthly compensation.

    An invalid lift may be furnished if:
    (a) The applicant is a veteran who is receiving (1) special monthly 
compensation (including special monthly compensation based on the need 
for aid and attendance) under the provisions of 38 U.S.C. 1114(r), or 
(2) comparable compensation benefits at the rates prescribed under 38 
U.S.C. 1134, or (3) increased pension based on the need for aid and 
attendance or a greater compensation benefit rather than aid and 
attendance pension to which he or she has been adjudicated to be 
presently eligible; and
    (b) The veteran has loss, or loss of use, of both lower extremities 
and at least one upper extremity (loss of use may result from paralysis 
or other impairment to muscle power and includes all cases in which the 
veteran cannot use his or her extremities or is medically prohibited 
from doing so because of a serious disease or disability); and
    (c) The veteran has been medically determined incapable of moving 
himself or herself from his or her bed to a wheelchair, or from his or 
her wheelchair to his or her bed, without the aid

[[Page 685]]

of an attendant, because of the disability involving the use of his or 
her extremities; and
    (d) An invalid lift would be a feasible means by which the veteran 
could accomplish the necessary maneuvers between bed and wheelchair, and 
is medically determined necessary.

[33 FR 12315, Aug. 31, 1968, as amended at 36 FR 3117, Feb. 13, 1971; 54 
FR 34983, Aug. 23, 1989. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.152  Devices to assist in overcoming the handicap of deafness.

    Devices for assisting in overcoming the handicap of deafness 
(including telecaptioning television decoders) may be furnished to any 
veteran who is profoundly deaf (rated 80% or more disabled for hearing 
impairment by the Department of Veterans Affairs) and is entitled to 
compensation on account of such hearing impairment.

(Authority: 38 U.S.C. 3902)

[53 FR 46607, Nov. 18, 1988. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.153  Training in the use of appliances.

    Beneficiaries supplied prosthetic and similar appliances will be 
additionally entitled to fitting and training in the use of the 
appliances. Such training will usually be given in Department of 
Veterans Affairs facilities and by Department of Veterans Affairs 
employees, but may be obtained under contract if determined necessary.

[26 FR 5871, June 30, 1961. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.154  Dog-guides and equipment for blind.

    (a) Blind ex-members of the Armed Forces entitled to disability 
compensation for a service-connected disability may be furnished a 
trained dog-guide. In addition, they may be furnished necessary travel 
expense to and from their places of residence to the point where 
adjustment to the dog-guide is available and meals and lodging during 
the period of adjustment, provided they are required to be away from 
their usual places of residence during the period of adjustment.
    (b) Mechanical and/or electronic equipment considered necessary as 
aids to overcoming the handicap of blindness may also be supplied to 
beneficiaries defined in paragraph (a) of this section.

[26 FR 5872, June 30, 1961. Redesignated at 61 FR 21966, May 13, 1996]

                Automotive Equipment and Driver Training



Sec. 17.155  Minimum standards of safety and quality for automotive 
adaptive equipment.

    (a) The Under Secretary for Health or designee is authorized to 
develop and establish minimum standards of safety and quality for 
adaptive equipment provided under 38 U.S.C. chapter 39.
    (b) In the performance of this function, the following 
considerations will apply:
    (1) Minimum standards of safety and quality will be developed and 
promulgated for basic adaptive equipment specifically designed to 
facilitate operation and use of standard passenger motor vehicles by 
persons who have specified types of disablement and for the installation 
of such equipment.
    (2) In those instances where custombuilt adaptive equipment is 
designed and installed to meet the peculiar needs of uniquely disabled 
persons and where the incidence of probable usage is not such as to 
justify development of formal standards, such equipment will be 
inspected and, if in order, approved for use by a qualified designee of 
the Under Secretary for Health.
    (3) Adaptive equipment, available to the general public, which is 
manufactured under standards of safety imposed by a Federal agency 
having authority to establish the same, shall be deemed to meet required 
standards for use as adaptive equipment. These include such items as 
automatic transmissions, power brakes, power steering and other 
automotive options.
    (c) For those items where specific Department of Veterans Affairs 
standards of safety and quality have not as yet been developed, or where 
such standards are otherwise provided as with custom-designed or factory 
option

[[Page 686]]

items, authorization of suitable adaptive equipment will not be delayed. 
Approval of such adaptive equipment, however, shall be subject to the 
judgment of designated certifying officials that it meets implicit 
standards of safety and quality adopted by the industry or as later 
developed by the Department of Veterans Affairs.

[40 FR 8819, Mar. 3, 1975. Redesignated at 61 FR 21966, May 13, 1996, as 
amended at 62 FR 17072, Apr. 9, 1997]



Sec. 17.156  Eligibility for automobile adaptive equipment.

    Automobile adaptive equipment may be authorized if the Under 
Secretary for Health or designee determines that such equipment is 
deemed necessary to insure that the eligible person will be able to 
operate the automobile or other conveyance in a manner consistent with 
such person's safety and so as to satisfy the applicable standards of 
licensure established by the State of such person's residency or other 
proper licensing authority.
    (a) Persons eligible for adaptive equipment are:
    (1) Veterans who are entitled to receive compensation for the loss 
or permanent loss of use of one or both feet; or the loss or permanent 
loss of use of one or both hands; or ankylosis of one or both knees, or 
one of both hips if the disability is the result of injury incurred or 
disease contracted in or aggravated by active military, naval or air 
service.
    (2) Members of the Armed Forces serving on active duty who are 
suffering from any disability described in paragraph (a)(1) of this 
section incurred or contracted during or aggravated by active military 
service are eligible to receive automobile adaptive equipment.
    (b) Payment or reimbursement of reasonable costs for the repair, 
replacement, or reinstallation of adaptive equipment deemed necessary 
for the operation of the automobile may be authorized by the Under 
Secretary for Health or designee.

(Authority: 38 U.S.C. 3902)

[53 FR 46607, Nov. 18, 1988. Redesignated at 61 FR 21966, May 13, 1996, 
as amended at 62 FR 17072, Apr. 9, 1997]



Sec. 17.157  Definition-adaptive equipment.

    The term, adaptive equipment, means equipment which must be part of 
or added to a conveyance manufactured for sale to the general public to 
make it safe for use by the claimant, and enable that person to meet the 
applicable standards of licensure. Adaptive equipment includes any term 
specified by the Under Secretary for Health or designee as ordinarily 
necessary for any of the classes of losses or combination of such losses 
specified in Sec. 17.156 of this part, or as deemed necessary in an 
individual case. Adaptive equipment includes, but is not limited to, a 
basic automatic transmission, power steering, power brakes, power window 
lifts, power seats, air-conditioning equipment when necessary for the 
health and safety of the veteran, 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.

(Authority: 38 U.S.C. 3901, 3902)

[53 FR 46608, Nov. 18, 1988. Redesignated and amended at 61 FR 21966, 
21968, May 13, 1996]



Sec. 17.158  Limitations on assistance.

    (a) An eligible person shall not be entitled to adaptive equipment 
for more than two automobiles or other conveyances at any one time or 
during any four-year period except when due to circumstances beyond 
control of such person, one of the automobiles or conveyances for which 
adaptive equipment was provided during the applicable four-year period 
is no longer available for the use of such person.
    (1) Circumstances beyond the control of the eligible person are 
those where the vehicle was lost due to fire, theft, accident, court 
action, or when repairs are so costly as to be prohibitive or a 
different vehicle is required due to a change in the eligible person's 
physical condition.

[[Page 687]]

    (2) For purposes of paragraph (a)(1) of this section, an eligible 
person shall be deemed to have access to and use of an automobile or 
other conveyance for which the Department of Veterans Affairs has 
provided adaptive equipment if that person has sold, given or 
transferred the vehicle to a spouse, family member or other person 
residing in the same household as the eligible person, or to a business 
owned by such person.


(Authority: 38 U.S.C. 3903)

    (b) Eligible persons may be reimbursed for the actual cost of 
adaptive equipment subject to a dollar amount for specific items 
established from time to time by the Under Secretary for Health.


(Authority: 38 U.S.C. 3902)

    (c) Reimbursement for a repair to an item of adaptive equipment is 
limited to the current vehicles of record and only to the basic 
components authorized as automobile adaptive equipment. Reimbursable 
amounts for repairs are limited to the cost of parts and labor based on 
the amounts published in generally acceptable commercial estimating 
guides for domestic automobiles.

(Authority: 38 U.S.C. 3902)

[53 FR 46608, Nov. 18, 1988. Redesignated and amended at 61 FR 21966, 
21968, May 13, 1996]



Sec. 17.159  Obtaining vehicles for special driver training courses.

    The Secretary may obtain by purchase, lease, gift or otherwise, any 
automobile, motor vehicle, or other conveyance deemed necessary to 
conduct special driver training courses at Department of Veterans 
Affairs health care facilities. The Secretary may sell, assign, transfer 
or convey any such automobile, vehicle or conveyance to which the 
Department of Veterans Affairs holds title for such price or under such 
terms deemed appropriate by the Secretary. Any proceeds received from 
such disposition shall be credited to the applicable Department of 
Veterans Affairs appropriation.

(Authority: 38 U.S.C. 3903(e)(3))

[45 FR 6939, Jan. 31, 1980. Redesignated at 54 FR 46607, Nov. 18, 1988, 
and further redesignated at 61 FR 21966, May 13, 1996]

                             Dental Services



Sec. 17.160  Authorization of dental examinations.

    When a detailed report of dental examination is essential for a 
determination of eligibility for benefits, dental examinations may be 
authorized for the following classes of claimants or beneficiaries:
    (a) Those having a dental disability adjudicated as incurred or 
aggravated in active military, naval, or air service or those requiring 
examination to determine whether the dental disability is service 
connected.
    (b) Those having disability from disease or injury other than 
dental, adjudicated as incurred or aggravated in active military, naval, 
or air service but with an associated dental condition that is 
considered to be aggravating the basic service-connected disorder.
    (c) Those for whom a dental examination is ordered as a part of a 
general physical examination.
    (d) Those requiring dental examination during hospital, nursing 
home, or domiciliary care.
    (e) Those held to have suffered dental injury or aggravation of an 
existing dental injury, as the result of examination, hospitalization, 
or medical or surgical (including dental) treatment that had been 
awarded.
    (f) Veterans who are participating in a rehabilitation program under 
38 U.S.C. chapter 31 are entitled to such dental services as are 
professionally determined necessary for any of the reasons enumerated in 
Sec. 17.47(g).


(Authority: 38 U.S.C. 1712(b); ch. 31)

    (g) Those for whom a special dental examination is authorized by the 
Under Secretary for Health or the Assistant Chief Medical Director for 
Dentistry.

[[Page 688]]

    (h) Persons defined in Sec. 17.60(d).

[13 FR 7162, Nov. 27, 1948, as amended at 21 FR 10388, Dec. 28, 1956; 23 
FR 6503, Aug. 22, 1958; 27 FR 11424, Nov. 20, 1962; 29 FR 1463, Jan. 29, 
1964; 30 FR 1789, Feb. 9, 1965; 32 FR 13817, Oct. 4, 1967; 33 FR 5300, 
Apr. 3, 1968; 35 FR 6586, Apr. 24, 1970; 49 FR 5617, Feb. 14, 1984. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996]



Sec. 17.161  Authorization of outpatient dental treatment.

    Outpatient dental treatment may be authorized by the Chief, Dental 
Service, for beneficiaries defined in 38 U.S.C. 1712(b) and 38 CFR 17.93 
to the extent prescribed and in accordance with the applicable 
classification and provisions set forth in this section.
    (a) Class I. Those having a service-connected compensable dental 
disability or condition, may be authorized any dental treatment 
indicated as reasonably necessary to maintain oral health and 
masticatory function. There is no time limitation for making application 
for treatment and no restriction as to the number of repeat episodes of 
treatment.
    (b) Class II. (1)(i) Those having a service-connected noncompensable 
dental condition or disability shown to have been in existence at time 
of discharge or release from active service, which took place after 
September 30, 1981, may be authorized any treatment indicated as 
reasonably necessary for the one-time correction of the service-
connected noncompensable condition, but only if:
    (A) They served on active duty during the Persian Gulf War and were 
discharged or released, under conditions other than dishonorable, from a 
period of active military, naval, or air service of not less than 90 
days, or they were discharged or released under conditions other than 
dishonorable, from any other period of active military, naval, or air 
service of not less than 180 days;
    (B) Application for treatment is made within 90 days after such 
discharge or release.
    (C) The certificate of discharge or release does not bear a 
certification that the veteran was provided, within the 90-day period 
immediately before such discharge or release, a complete dental 
examination (including dental X-rays) and all appropriate dental 
treatment indicated by the examination to be needed, and
    (D) Department of Veterans Affairs dental examination is completed 
within six months after discharge or release, unless delayed through no 
fault of the veteran.
    (ii) Those veterans discharged from their final period of service 
after August 12, 1981, who had reentered active military service within 
90 days after the date of a discharge or release from a prior period of 
active military service, may apply for treatment of service-connected 
noncompensable dental conditions relating to any such periods of service 
within 90 days from the date of their final discharge or release.
    (iii) If a disqualifying discharge or release has been corrected by 
competent authority, application may be made within 90 days after the 
date of correction.
    (2)(i) Those having a service-connected noncompensable dental 
condition or disability shown to have been in existence at time of 
discharge or release from active service, which took place before 
October 1, 1981, may be authorized any treatment indicated as reasonably 
necessary for the one-time correction of the service-connected 
noncompensable condition, but only if:
    (A) They were discharged or released, under conditions other than 
dishonorable, from a period of active military, naval or air service of 
not less than 180 days.
    (B) Application for treatment is made within one year after such 
discharge or release.
    (C) Department of Veterans Affairs dental examination is completed 
within 14 months after discharge or release, unless delayed through no 
fault of the veteran.
    (ii) Those veterans discharged from their final period of service 
before August 13, 1981, who had reentered active military service within 
one year from the date of a prior discharge or release, may apply for 
treatment of service-connected noncompensable dental conditions relating 
to any such prior periods of service within one year of their final 
discharge or release.
    (iii) If a disqualifying discharge or release has been corrected by 
competent authority, application may be made

[[Page 689]]

within one year after the date of correction.


(Authority: 38 U.S.C. 1712)

    (c) Class II (a). Those having a service-connected noncompensable 
dental condition or disability adjudicated as resulting from combat 
wounds or service trauma may be authorized any treatment indicated as 
reasonably necessary for the correction of such service-connected 
noncompensable condition or disability.
    (d) Class II(b). Those having a service-connected noncompensable 
dental condition or disability and who had been detained or interned as 
prisoners of war for a period of less than 90 days may be authorized any 
treatment as reasonably necessary for the correction of such service-
connected dental condition or disability.


(Authority: Pub. L. 100-322; 38 U.S.C. 1712(b)(l)(F))

    (e) Class II(c). Those who were prisoners of war for 90 days or 
more, as determined by the concerned military service department, may be 
authorized any needed dental treatment.


(Authority: Pub. L. 100-322, 38 U.S.C. 1712(b)(1)(F))

    (f) Class IIR (Retroactive). Any veteran who had made prior 
application for and received dental treatment from the Department of 
Veterans Affairs for noncompensable dental conditions, but was denied 
replacement of missing teeth which were lost during any period of 
service prior to his/her last period of service may be authorized such 
previously denied benefits under the following conditions:
    (1) Application for such retroactive benefits is made within one 
year of April 5, 1983.
    (2) Existing Department of Veterans Affairs records reflect the 
prior denial of the claim.

All Class IIR (Retroactive) treatment authorized will be completed on a 
fee basis status.


(Authority: 38 U.S.C. 1712)

    (g) Class III. Those having a dental condition professionally 
determined to be aggravating disability from an associated service-
connected condition or disability may be authorized dental treatment for 
only those dental conditions which, in sound professional judgment, are 
having a direct and material detrimental effect upon the associated 
basic condition or disability.
    (h) Class IV. Those whose service-connected disabilities are rated 
at 100% by schedular evaluation or who are entitled to the 100% rate by 
reason of individual unemployability may be authorized any needed dental 
treatment.


(Authority: 38 U.S.C. 1712)

    (i) Class V. A veteran who is participating in a rehabilitation 
program under 38 U.S.C. chapter 31 may be authorized such dental 
services as are professionally determined necessary for any of the 
reasons enumerated in Sec. 17.47(g).


(Authority: 38 U.S.C. 1712(b); chapter 31)

    (j) Class VI. Any veterans scheduled for admission or otherwise 
receiving care and services under chapter 17 of 38 U.S.C. may receive 
outpatient dental care which is medically necessary, i.e., is for dental 
condition clinically determined to be complicating a medical condition 
currently under treatment.

(Authority: 38 U.S.C. 1712)

[20 FR 9505, Dec. 20, 1955, as amended at 26 FR 11214, Nov. 28, 1961; 27 
FR 11424, Nov. 20, 1962; 29 FR 18219, Dec. 23, 1964; 32 FR 13817, Oct. 
4, 1967; 33 FR 5300, Apr. 3, 1968; 45 FR 47680, July 16, 1980; 48 FR 
16681, Apr. 19, 1983; 49 FR 5617, Feb. 14, 1984; 54 FR 25449, June 15, 
1989; 57 FR 4367, Feb. 5, 1992; 57 FR 41701, Sept. 11, 1992. 
Redesignated and amended at 61 FR 21965, 21968, May 13, 1996]



Sec. 17.162  Eligibility for Class II dental treatment without rating 
action.

    When an application has been made for class II dental treatment 
under Sec. 17.161(b), the applicant may be deemed eligible and dental 
treatment authorized on a one-time basis without rating action if:
    (a) The examination to determine the need for dental care has been 
accomplished within the specified time limit after date of discharge or 
release unless

[[Page 690]]

delayed through no fault of the veteran, and sound dental judgment 
warrants a conclusion the condition originated in or was aggravated 
during service and the condition existed at the time of discharge or 
release from active service, and


(Authority: 38 U.S.C. 1712)

    (b) The treatment will not involve replacement of a missing tooth 
noted at the time of Department of Veterans Affairs examination except:
    (1) In conjunction with authorized extraction replacement, or
    (2) When a determination can be made on the basis of sound 
professional judgment that a tooth was extracted or lost on active duty.
    (c) Individuals whose entire tour of duty consisted of active or 
inactive duty for training shall not be eligible for treatment under 
this section.

[37 FR 6847, Apr. 5, 1972, as amended at 48 FR 16682, Apr. 19, 1983. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996]



Sec. 17.163  Posthospital outpatient dental treatment.

    The Chief, Dental Service may authorize outpatient dental care which 
is reasonably necessary to complete treatment of a nonservice-connected 
dental condition which was begun while the veteran was receiving 
Department of Veterans Affairs authorized hospital care.

(Authority: 38 U.S.C. 1712(b)(5))

[45 FR 6939, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.164  Patient responsibility in making and keeping dental 
appointments.

    Any veteran eligible for dental treatment on a one-time completion 
basis only and who has not received such treatment within 3 years after 
filing the application shall be presumed to have abandoned the claim for 
dental treatment.

[45 FR 6939, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.165  Emergency outpatient dental treatment.

    When outpatient emergency dental care is provided, as a humanitarian 
service, to individuals who have no established eligibility for 
outpatient dental care, the treatment will be restricted to the 
alleviation of pain or extreme discomfort, or the remediation of a 
dental condition which is determined to be endangering life or health. 
The provision of emergency treatment to persons found ineligible for 
dental care will not entitle the applicant to further dental treatment. 
Individuals provided emergency dental care who are found to be 
ineligible for such care will be billed.

(Authority: 38 U.S.C. 501)

[50 FR 14704, Apr. 15, 1985; 50 FR 21604, May 28, 1985. Redesignated at 
61 FR 21966, May 13, 1996]



Sec. 17.166  Dental services for hospital or nursing home patients and 
domiciled members.

    Persons receiving hospital, nursing home, or domiciliary care 
pursuant to the provisions of Sec. Sec. 17.46 and 17.47, will be 
furnished such dental services as are professionally determined 
necessary to the patients' or members' overall hospital, nursing home, 
or domiciliary care.

[30 FR 1790, Feb. 9, 1965. Redesignated at 61 FR 21966, May 13, 1996]

                                Autopsies



Sec. 17.170  Autopsies.

    (a) Except as provided in this section, no autopsy will be performed 
by the Department of Veterans Affairs unless there is no known surviving 
spouse or known next of kin; or without the consent of the surviving 
spouse or, in a proper case, the next of kin, unless the patient or 
domiciled person was abandoned by the spouse, if any, or, if no spouse, 
by the next of kin for a period of not less than 6 months next preceding 
death. Where no inquiry has been made for or in regard to the decedent 
for a period of 6 months next preceding his death, he or she shall be 
deemed to have been abandoned.
    (b) If there is no known surviving spouse or known next of kin, or 
if the decedent shall have been abandoned or if the request is sent and 
the spouse or, in proper cases, the next of kin fails to reply within 
the reasonable time stated in such request of the Department of

[[Page 691]]

Veterans Affairs for permission to perform the autopsy, the Director is 
hereby authorized to cause an autopsy to be performed if in the 
Director's discretion he or she concludes that such autopsy is 
reasonably required for any necessary purpose of the Department of 
Veterans Affairs, including the completion of official records and 
advancement of medical knowledge.
    (c) If it is suspected that death resulted from crime and if the 
United States has jurisdiction over the area where the body is found, 
the Director of the Department of Veterans Affairs facility will inform 
the Office of Inspector General of the known facts concerning the death. 
Thereupon the Office of Inspector General will transmit all such 
information to the United States Attorney for such action as may be 
deemed appropriate and will inquire whether the United States Attorney 
objects to an autopsy if otherwise it be appropriate. If the United 
States Attorney has no objection, the procedure as to autopsy will be 
the same as if the death had not been reported to him or her.
    (d) If the United States does not have exclusive jurisdiction over 
the area where the body is found the local medical examiner/coroner will 
be informed. If the local medical examiner/coroner declines to assume 
jurisdiction the procedure will be the same as is provided in paragraph 
(c) of this section. If a Federal crime is indicated by the evidence, 
the procedure of paragraph (c) of this section will also be followed.
    (e) The laws of the decedent's domicile are determinative as to 
whether the spouse or the next of kin is the proper person to grant 
permission to perform an autopsy and of the question as to the order of 
preference among such persons. Usually the spouse is first entitled, 
except in some situations of separation; followed by children, parents, 
brothers and sisters, etc. When the next of kin as defined by the laws 
of decedent's domicile consists of a number of persons as children, 
parents, brothers and sisters, etc., permission to perform an autopsy 
may be accepted when granted by the person in the appropriate class who 
assumes the right and duty of burial.
    (f) The Director of a Department of Veterans Affairs facility is 
authorized to cause an autopsy to be performed on a veteran who dies 
outside of a Department of Veterans Affairs facility while undergoing 
post-hospital care under the provisions of 38 U.S.C. 1712 and 38 CFR 
17.93, if the Director determines such autopsy is reasonably required 
for any necessary purpose of the Department of Veterans Affairs, 
including the completion of official records and advancement of medical 
knowledge. Such authority also encompasses the furnishing of 
transportation of the body at Department of Veterans Affairs expense to 
the Department of Veterans Affairs facility and return of the body. 
Consent for the autopsy will be obtained as provided for in paragraph 
(e) of this section.

[16 FR 5701, June 15, 1951, as amended at 18 FR 2414, Apr. 24, 1953; 24 
FR 8330, Oct. 14, 1959; 35 FR 6586, Apr. 24, 1970; 36 FR 23386, Dec. 9, 
1971; 45 FR 6939, Jan. 31, 1980. Redesignated and amended at 61 FR 
21966, 21968, May 13, 1996; 61 FR 29294, June 10, 1996; 68 FR 17551, 
Apr. 10, 2003]

                        Veterans Canteen Service



Sec. 17.180  Delegation of authority.

    In connection with the Veterans Canteen Service, the Under Secretary 
for Health is hereby delegated authority as follows:
    (a) To exercise the powers and functions of the Secretary with 
respect to the maintenance and operation of the Veterans Canteen 
Service.
    (b) To designate the Assistant Chief Medical Director for 
Administration to administer the overall operation of the Veterans 
Canteen Service and to designate selected employees of the Veterans 
Canteen Service to perform the functions described in the enabling 
statute, 38 U.S.C. ch. 75, so as to effectively maintain and operate the 
Veterans Canteen Service.

[20 FR 337, Jan. 14, 1955, as amended at 36 FR 23386, Dec. 9, 1971; 45 
FR 6939, Jan 3l, 1980. Redesignated at 61 FR 21966, May 13, 1996, as 
amended at 62 FR 17072, Apr. 9, 1997]

            Aid to States for Care of Veterans in State Homes

    Note: Sections 17.190 through 17.200 do not apply to nursing home 
care in State homes.

[[Page 692]]

The provisions for nursing home care in State homes are set forth in 38 
CFR part 51.



Sec. 17.190  Recognition of a State home.

    A State-operated facility which provides hospital or domiciliary 
care to veterans must be formally recognized by the Secretary as a State 
home before Federal aid payments can be made for the care of such 
veterans. Any agency of a State (exclusive of a territory or possession) 
responsible for the maintenance or administration of a State home may 
apply for recognition by the Department of Veterans Affairs for the 
purpose of receiving aid for the care of veterans in such State home. A 
State home may be recognized if:


(Authority: 38 U.S.C. 501, 1741)

    (a) The State home is a facility which exists primarily for the 
accommodation of veterans incapable of earning a living and who are in 
need of domiciliary, and
    (b) The majority of such veterans who are domiciliary members in the 
home are veterans who may be included in the computation of the amount 
of aid payable from the Department of Veterans Affairs, and
    (c) The personnel, building and other facilities and improvements at 
the home are devoted primarily to the care of veterans, and

[35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996; 65 FR 968, 
Jan. 6, 2000]



Sec. 17.191  Filing applications.

    Applications for Department of Veterans Affairs recognition of a 
State home may be filed with the Under Secretary for Health, Department 
of Veterans Affairs. After arranging for an inspection of the State 
home's facilities for furnishing domiciliary or hospital care, the Under 
Secretary for Health will make a recommendation to the Secretary who 
will notify the State official in writing of a decision.

[35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996; 65 FR 968, 
Jan. 6, 2000]



Sec. 17.192  Approval of annexes and new facilities.

    Separate applications for recognition must be filed for any annex, 
branch, enlargement, expansion, or relocation of a recognized home which 
is not on the same or contiguous grounds on which the parent facility is 
located. When a recognized State home establishes hospital care 
facilities which have not been inspected and approved by the Department 
of Veterans Affairs, a request for separate approval of such facilities 
must be made.

(Authority: 38 U.S.C. 1741, 501)

[35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980. 
Redesignated and amended at 61 FR 21966, 21968, May 13, 1996; 65 FR 968, 
Jan. 6, 2000]



Sec. 17.193  Prerequisites for payments to State homes.

    No payment or grant may be made to any State home unless the State 
home meets the standards prescribed by the Secretary.

(Authority: 38 U.S.C. 1742(a))

[45 FR 6939, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996; 
65 FR 968, Jan. 6, 2000]



Sec. 17.194  Aid for domiciliary care.

    Aid may be paid to the designated State official for domiciliary 
care furnished in a recognized State home for any veteran if the veteran 
is eligible for domiciliary care in a Department of Veterans Affairs 
facility.

(Authority: 38 U.S.C. 1741)

[45 FR 6939, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.196  Aid for hospital care.

    Aid may be paid to the designated State official for hospital care 
furnished in a recognized State home for any veteran if:
    (a) The veteran is eligible for hospital care in a Department of 
Veterans Affairs facility, and
    (b) The quarters in which the hospital care is carried out are in an 
area clearly designated for such care, specifically established, staffed 
and equipped to provide hospital type care, are not intermingled with 
the quarters of nursing home care patients or domiciliary members, and 
meet such other

[[Page 693]]

minimum standards as the Department of Veterans Affairs may prescribe.

[45 FR 6940, Jan. 31, 1980. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.197  Amount of aid payable.

    The amount of aid payable to a recognized State home shall be at the 
per diem rates established by title 38 U.S.C., section 1741(a)(1) for 
domiciliary care; and section 1741(a)(3) for hospital care. In no case 
shall the payments made with respect to any veteran exceed one-half of 
the cost of the veteran's care in the State home. VA will publish the 
actual per diem rates, whenever they change, in a Federal Register 
notice.

(Authority: 38 U.S.C. 1741)

[50 FR 32568, Aug. 13, 1985. Redesignated at 61 FR 21966, May 13, 1996; 
65 FR 968, Jan. 6, 2000]



Sec. 17.198  Department of Veterans Affairs approval of eligibility 
required.

    Federal aid will be paid only for the care of veterans whose 
separate eligibility for hospital or domiciliary care has been approved 
by the Department of Veterans Affairs. To obtain such approval, State 
homes will complete a Department of Veterans Affairs application form 
for each veteran for the type of care to be provided and submit it to 
the Department of Veterans Affairs office of jurisdiction for 
determination of eligibility. Payments shall be made only from the date 
the Department of Veterans Affairs office of jurisdiction receives such 
application; however, if such request is received by the Department of 
Veterans Affairs office of jurisdiction within 10 days after the 
beginning of the care of such veteran for which he or she is determined 
to be eligible, payment shall be made on account of such veteran from 
the date care began.

(Authority: 38 U.S.C. 1743)

[35 FR 3167, Feb. 19, 1970, as amended at 45 FR 6940, Jan. 31, 1980. 
Redesignated at 61 FR 21966, May 13, 1996; 65 FR 968, Jan. 6, 2000]



Sec. 17.199  Inspection of recognized State homes.

    Representatives of the Department of Veterans Affairs may inspect 
any State home at such times as are deemed necessary. Such inspections 
shall be concerned with the physical plant; records relating to 
admissions, discharges and occupancy; fiscal records; and all other 
areas of interest necessary to a determination of compliance with 
applicable laws and regulations relating to the payment of Federal aid. 
The authority to inspect carries with it no authority over the 
management or control of any State home.

(Authority: 38 U.S.C. 1742)

[30 FR 221, Jan. 8, 1965, as amended at 35 FR 3167, Feb. 19, 1970. 
Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.200  Audit of State homes.

    The State must comply with the Single Audit Act of 1984 (part 41 of 
this chapter).

(Authority: 31 U.S.C. 7501-7507)

[52 FR 23825, June 25, 1987. Redesignated at 61 FR 21966, May 13, 1996]

        Sharing of Medical Facilities, Equipment, and Information



Sec. 17.230  Contingency backup to the Department of Defense.

    (a) Priority care to active duty personnel. The Secretary, during 
and/or immediately following a period of war or national emergency 
declared by the Congress or the President that involves the use of 
United States Armed Forces in armed conflict, is authorized to furnish 
hospital care, nursing home care, and medical services to members of the 
Armed Forces on active duty. The Secretary may give higher priority in 
the furnishing of such care and services in VA facilities to members of 
the Armed Forces on active duty than to any other group of persons 
eligible for such care and services with the exception of veterans with 
service-connected disabilities.


(Authority: 38 U.S.C. 8111A, Pub. L. 97-174)

    (b) Contract authority. During a period in which the Secretary is 
authorized to furnish care and services to members of the Armed Forces 
under paragraph (a) of this section, the Secretary, to the extent 
authorized by the President and

[[Page 694]]

subject to the availability of appropriations or reimbursements, may 
authorize VA facilities to enter into contracts with private facilities 
for the provision during such period of hospital care and medical 
services for certain veterans. These veterans include only those who are 
receiving hospital care under 38 U.S.C. 1710 or, in emergencies, for 
those who are eligible for treatment under that section, or who are 
receiving care under 38 U.S.C. 1712 (f) and (g). This authorization 
pertains only to circumstances in which VA facilities are not capable of 
furnishing or continuing to furnish the care or services required 
because of the furnishing of care and services to members of the Armed 
Forces.

(Authority: 38 U.S.C. 8111A)

(Authority: Sec. 501 and 1720(a) of Title 38, U.S.C.)

[49 FR 5617, Feb. 14, 1984. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.240  Sharing specialized medical resources.

    Subject to such terms and conditions as the Under Secretary for 
Health shall prescribe, agreements may be entered into for sharing 
medical resources with other hospitals, including State or local, public 
or private hospitals or other medical installations having hospital 
facilities or organ banks, blood banks, or similar institutions, or 
medical schools or clinics in a medical community with geographical 
limitations determined by the Under Secretary for Health, provided:
    (a) The agreement will achieve one of the following purposes: (1) It 
will secure the use of a specialized medical resource which otherwise 
might not be feasibly available by providing for the mutual use or 
exchange of use of specialized medical resources when such an agreement 
will obviate the need for a similar resource to be installed or provided 
at a facility operated by the Department of Veterans Affairs, or
    (2) It will secure effective use of Department of Veterans Affairs 
specialized medical resources by providing for the mutual use, or 
exchange of use, of specialized medical resources in a facility operated 
by the Department of Veterans Affairs, which have been justified on the 
basis of veterans' care, but which are not utilized to their maximum 
effective capacity; and
    (b) The agreement is determined to be in the best interest of the 
prevailing standards of the Department of Veterans Affairs Medical 
Program; and
    (c) The agreement provides for reciprocal reimbursement based on a 
charge which covers the full cost of the use of specialized medical 
resources, incidental hospital care or other needed services, supplies 
used, and normal depreciation and amortization costs of equipment.
    (d) Reimbursement for medical care rendered to an individual who is 
entitled to hospital or medical services (Medicare) under subchapter 
XVIII of chapter 7 of title 42 U.S.C., and who has no entitlement to 
medical care from the Department of Veterans Affairs, will be made to 
such facility, or if the contract or agreement so provides, to the 
community health care facility which is party to the agreement, in 
accordance with:
    (1) Rates prescribed by the Secretary of Health and Human Services, 
after consultation with the Secretary of Veterans Affairs, and
    (2) Procedures jointly prescribed by the Secretary of Health and 
Human Services and the Secretary of Veterans Affairs to assure 
reasonable quality of care and service and efficient and economical 
utilization of resources.

(Authority: 38 U.S.C. 8153)

[32 FR 6841, May 4, 1967, as amended at 35 FR 18198, Nov. 28, 1970; 39 
FR 1846, Jan. 15, 1974; 45 FR 6940, Jan. 31, 1980; 47 FR 58250, Dec. 30, 
1982; 54 FR 34983, Aug. 23, 1989. Redesignated at 61 FR 21966, May 13, 
1996, as amended at 62 FR 17072, Apr. 9, 1997]



Sec. 17.241  Sharing medical information services.

    (a) Agreements for exchange of information. Subject to such terms 
and conditions as the Under Secretary for Health shall prescribe, 
Directors of Department of Veterans Affairs medical centers, may enter 
into agreements with medical schools, Federal, State or local, public or 
private hospitals, research centers, and individual members of the 
medical profession, under which medical information and techniques

[[Page 695]]

will be freely exchanged and the medical information services of all 
parties to the agreement will be available for use by any party to the 
agreement under conditions specified in the agreement.
    (b) Purpose of sharing agreements. Agreements for the exchange of 
information shall be used to the maximum extent practicable to create at 
each Department of Veterans Affairs medical center which has entered 
into such an agreement, an environment of academic medicine which will 
help the hospital attract and retain highly trained and qualified 
members of the medical profession.
    (c) Use of electronic equipment. Recent developments in electronic 
equipment shall be utilized under information sharing programs to 
provide a close educational, scientific, and professional link between 
Department of Veterans Affairs medical centers and major medical 
centers.
    (d) Furnishing information services on a fee basis. The educational 
facilities and programs established at Department of Veterans Affairs 
Medical Centers and the electronic link to medical centers shall be made 
available for use by medical entities in the surrounding medical 
community which have not entered into sharing agreements with the 
Department of Veterans Affairs, in order to bring about utilization of 
all medical information in the surrounding medical community, 
particularly in remote areas, and to foster and encourage the widest 
possible cooperation and consultation among all members of the medical 
profession in the surrounding medical community.
    (e) Establishing fees for information services. Subject to such 
terms and conditions as the Under Secretary for Health shall prescribe, 
Directors of Department of Veterans Affairs medical centers shall charge 
for information and educational facilities and services made available 
under paragraph (d) of this section. The fee may be on an annual or 
other periodic basis, at rates determined, after appropriate study, to 
be fair and equitable. The financial status of any user of such services 
shall be taken into consideration in establishing the amount of the fee 
to be paid.

[32 FR 6841, May 4, 1967, as amended at 47 FR 58250, Dec. 30, 1982. 
Redesignated at 61 FR 21966, May 13, 1996, as amended at 62 FR 17072, 
Apr. 9, 1997]



Sec. 17.242  Coordination of programs with Department of Health and 
Human Services.

    Programs for sharing specialized medical resources or medical 
information services shall be coordinated to a maximum extent 
practicable, with programs carried out under part F, title XVI of the 
Public Health Service Act under the jurisdiction of the Department of 
Health and Human Services.

[32 FR 6842, May 4, 1967, as amended at 45 FR 6940, Jan. 31, 1980; 47 FR 
58250, Dec. 30, 1982. Redesignated at 61 FR 21966, May 13, 1996]

                   Grants for Exchange of Information



Sec. 17.250  Scope of the grant program.

    The provisions of Sec. 17.250 through Sec. 17.266 are applicable 
to grants under 38 U.S.C. 8155 for programs for the exchange of medical 
information. The purpose of these grants is to assist medical schools, 
hospitals, and research centers in planning and carrying out agreements 
for the exchange of medical information, techniques, and information 
services. The grant funds may be used for the employment of personnel, 
the construction of facilities, the purchasing of equipment, research, 
training or demonstration activities when necessary to implement 
exchange of information agreements.

[33 FR 6011, Apr. 19, 1968. Redesignated and amended at 61 FR 21966, 
21968, May 13, 1996]



Sec. 17.251  The Subcommittee on Academic Affairs.

    There is established within the Special Medical Advisory Group 
authorized under the provisions of 38 U.S.C. 7312 a Subcommittee on 
Academic Affairs, and the Subcommittee shall advise the Secretary, 
through the Under Secretary for Health, in matters pertinent to 
achieving the objectives of programs for exchange of medical 
information. The Subcommittee shall review each application for a grant 
and prepare a written report setting forth

[[Page 696]]

recommendations as to the final action to be taken on the application.

[42 FR 54804, Oct. 11, 1977. Redesignated at 61 FR 21966, May 13, 1996, 
as amended at 62 FR 17072, Apr. 9, 1997]



Sec. 17.252  Ex officio member of subcommittee.

    The Assistant Chief Medical Director for Academic Affairs shall be 
an ex officio member of the Subcommittee on Academic Affairs.

[42 FR 54804, Oct. 11, 1977. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.253  Applicants for grants.

    Applicants for grants generally will be persons authorized to 
represent a medical school, hospital, or research center which has in 
effect or has tentatively approved an agreement with the Department of 
Veterans Affairs to exchange medical information.

[33 FR 6011, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.254  Applications.

    Each application for a grant shall be submitted to the Under 
Secretary for Health on such forms as shall be prescribed and shall 
include the following evidence, assurances, and supporting documents:
    (a) To specify amount. Each application shall show the amount of the 
grant requested, and if the grant is to be for more than one objective, 
the amounts allocated to each objective (e.g., to training, 
demonstrations, or construction) shall be specified, and
    (b) To include copy of agreement. Each application shall be 
accompanied by a copy of the agreement for the exchange of information 
or information services which the grant funds applied for will 
implement, and
    (c) To include descriptions and plans. Each application shall 
include a description of the use to which the grant funds will be 
applied in sufficient detail to show need, purpose, and justifications, 
and shall be illustrated by financial and budgetary data, and
    (d) To include cost participation information. Each application 
shall show the amount of the grant requested to be used for direct 
expenses by category of direct expenses, the amount requested for 
indirect expenses related to the direct expenses, any additional amounts 
which will be applied to the program or planning from other Federal 
agencies, and from other sources, and amounts or expenses which will be 
borne by the applicant, and
    (e) To include assurance records will be kept. Each application 
shall include sufficient assurances that the applicant shall keep 
records which fully disclose the amount and disposition of the proceeds 
of the grant, the total cost of the project or undertaking in connection 
with which the grant is made or used, the portion of the costs supplied 
by non-Federal sources, and such other records as will facilitate an 
effective audit. All such records shall be retained by the applicant 
(grantee) for a period of 3 years after the submission of the final 
expenditure report, or if litigation, claim or audit is started before 
the expiration of the 3-year period, the records shall be retained until 
all litigation, claims or audit findings involving the records have been 
resolved, and
    (f) To include assurance records will be made available. Each 
application shall include sufficient assurances the applicant will give 
the Secretary and the Comptroller General of the United States, or any 
of their authorized representatives, access to its books, documents, 
papers, and records which are pertinent to the grant for the purposes of 
audit and examination, and
    (g) To include assurance progress reports will be made. Each 
application shall include sufficient assurances the applicant will 
furnish the Under Secretary for Health periodic progress reports in 
sufficient detail showing the status of the project, planning, program, 
or system funded by the grant for which application is made, and the 
extent to which the stated objectives will have been achieved, and
    (h) To include civil rights assurances. Each application shall 
include sufficient assurances that no part of the grant funds will be 
used either by the grantee or by any contractor or subcontractor to be 
paid from grant funds for any purpose which is inconsistent with 
regulations promulgated by the Secretary (part 18 of this chapter) 
implementing title VI of the Civil Rights

[[Page 697]]

Act of 1964, or inconsistent with Executive Order 11246 (30 FR 12319) 
and any implementing regulations the Secretary of Labor may promulgate.

[33 FR 6011, Apr. 19, 1968, as amended at 36 FR 320, Jan. 9, 1971; 42 FR 
54804, Oct. 11, 1977. Redesignated and amended at 61 FR 21966, 21969, 
May 13, 1996]



Sec. 17.255  Applications for grants for programs which include 
construction proj ects.

    In addition to the documents and evidence required by Sec. 17.254, 
any application for a grant for the construction of any facility, 
structure or system which is part of an exchange of information program 
shall include the following:
    (a) Each application shall include complete descriptions, maps, and 
surveys of the construction site, and documentary evidence and 
explanations showing ownership, and
    (b) Each application shall include complete plans and specifications 
for the construction project, and where applicable, sufficient 
explanations of technical applications so that they may be understood by 
the layman, and
    (c) Each application shall contain assurance that the rates of pay 
for laborers and mechanics engaged in construction activities will not 
be less than the prevailing local wage rates for similar work as 
determined in accordance with the provisions of 40 U.S.C. 276a--276a-5 
(The Davis-Bacon Act).

[33 FR 6012, Apr. 19, 1968. Redesignated and amended at 61 FR 21966, 
21969, May 13, 1996]



Sec. 17.256  Amended or supplemental applications.

    An amended application, or an application for a supplemental grant, 
may be considered either before or after final action has been taken on 
the original application. Amended applications and applications for 
supplemental grants shall be subject to the same terms, conditions and 
requirements necessary for original applications.

[33 FR 6012, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.257  Awards procedures.

    Applications for grants for planning or implementing agreements for 
the exchange of medical information or information facilities shall be 
reviewed by the Under Secretary for Health or designee. If it is 
determined approval of the grant is warranted, recommendations to that 
effect shall be made to the Secretary in writing and shall be 
accompanied by the following:
    (a) The recommendation for approval shall be accompanied by the 
written recommendation of the Subcommittee on Academic Affairs, and
    (b) The recommendation for approval shall be accompanied by the 
written draft of the certificate of award stating all conditions which 
the grantee is required to agree to under the provisions of Sec. 17.258 
and all other conditions to which it has been determined the grant will 
be subject, and
    (c) The recommendation shall include a certification that sufficient 
appropriated funds are available, and that the application for the grant 
is sufficient in all details as specified in Sec. Sec. 17.254 through 
17.256.

[33 FR 6012, Apr. 19, 1968, as amended at 42 FR 54805, Oct. 11, 1977. 
Redesignated and amended at 61 FR 21966, 21969, May 13, 1996]



Sec. 17.258  Terms and conditions to which awards are subject.

    Each certificate of award of a grant for planning or implementing an 
agreement for the exchange of information or information facilities 
shall specify that the grant is subject to the following terms and 
conditions:
    (a) Grants subject to terms of agreement for exchange of 
information. Each grant shall be subject to, and the certificate shall 
incorporate by reference, all terms, conditions, and obligations 
specified in the agreement or planning protocols which the grant will 
implement, and
    (b) Grants subject to assurances in application. Each grant shall be 
subject to all assurances made by the grantee in its application for the 
grant as required by Sec. Sec. 17.254 through 17.256, and
    (c) Grants subject to limitations on use of funds. Each grant shall 
be subject to the limitations on the use of grant funds, either for 
direct or indirect costs, as prescribed in Sec. Sec. 17.259 through 
17.261, and
    (d) Grants subject to special provisions. Each grant shall be 
subject to any special terms or conditions which may be

[[Page 698]]

warranted by circumstances applicable to individual applications, and 
specified in the certificate of award.

[33 FR 6012, Apr. 19, 1968. Redesignated and amended at 61 FR 21966, 
21969, May 13, 1996]



Sec. 17.259  Direct costs.

    Direct costs to which grant funds may be applied may include in 
proportion to time and effort spent, but are not limited to, fees and 
costs directly paid to personnel or for fringe benefits, rent, 
publications, educational programs, training, research, demonstration 
activities, or construction carried out in connection with pilot 
programs for planning or exchange of information.

[33 FR 6012, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.260  Patient care costs to be excluded from direct costs.

    Grant funds for planning or implementing agreements for the exchange 
of medical information shall not be available for the payment of any 
hospital, medical, or other costs involving the care of patients except 
to the extent that such costs are determined to be incident to research, 
training, or demonstration activities carried out in connection with an 
exchange of information program.

[33 FR 6012, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.261  Indirect costs.

    The grantee shall allocate expenditures as between direct and 
indirect costs according to generally accepted accounting procedures. 
The amount allocated for indirect costs may be computed on a percentage 
basis or on the basis of a negotiated lump-sum allowance. In the method 
of computation used, only indirect costs shall be included which bear a 
reasonable relationship to the planning or program funded by the grant 
and shall not exceed a percentage greater than the percentage the total 
institutional indirect cost is of the total direct salaries and wages 
paid by the institution.

[33 FR 6012, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.262  Authority to approve applications discretionary.

    Notwithstanding any recommendation by the Subcommittee on Academic 
Affairs of the Special Medical Advisory Group, or any recommendation by 
the Under Secretary for Health or designee, the final determination on 
any application for a grant rests solely with the Secretary.

[42 FR 54805, Oct. 11, 1977. Redesignated and amended at 61 FR 21966, 
21969, May 13, 1996]



Sec. 17.263  Suspension and termination procedures.

    Termination of a grant means the cancellation of Department of 
Veterans Affairs sponsorship, in whole or in part, under an agreement at 
any time prior to the date of completion. Suspension of a grant is an 
action by the Department of Veterans Affairs which temporarily suspends 
Department of Veterans Affairs sponsorship under the grant pending 
corrective action by the grantee or pending a decision to terminate the 
grant by the Department of Veterans Affairs.
    (a) Posttermination appeal. The following procedures are applicable 
for reviewing postaward disputes which may arise in the administration 
of or carrying out of the Exchange of Medical Information Grant Program.
    (1) Reviewable decisions. The Department of Veterans Affairs 
reserves the right to terminate any grant in whole or in part at any 
time before the date of completion, whenever it determines that the 
grantee has failed to comply with conditions of the agreement, or 
otherwise failed to comply with any law, regulation, assurance, term, or 
condition applicable to the grant.
    (2) Notice. The Department of Veterans Affairs shall promptly notify 
the grantee in writing of the determination. The notice shall set forth 
the reason for the determination in sufficient detail to enable the 
grantee to respond, and shall inform the grantee of his or her 
opportunity for review by the Assistant Chief Medical Director as 
provided in this section.
    (3) Request for appeal. A grantee with respect to whom a 
determination described in paragraph (a)(1) of this section has been 
made, and who desires review, may file with the Assistant Chief

[[Page 699]]

Medical Director for Academic Affairs an application for review of such 
determination. The grantee's application for review must be post-marked 
no later than 30 days after the postmarked date of notification provided 
pursuant to paragraph (a)(2) of this section.
    (4) Contents of request. The application for review must clearly 
identify the question or questions in dispute, contain a full statement 
of the grantee's position in respect to such question or questions, and 
provide pertinent facts and reasons in support of his or her position. 
The Assistant Chief Medical Director for Academic Affairs will promptly 
send a copy of the grantee's application to the Department of Veterans 
Affairs official responsible for the determination which is to be 
reviewed.
    (5) Effect of submission. When an application for review has been 
filed no action may be taken by the Department of Veterans Affairs 
pursuant to such determination until such application has been disposed 
of, except that the filing of the application shall not affect the 
authority which the constituent agency may have to suspend the system 
under a grant during proceedings under this section or otherwise to 
withhold or defer payments under the grant.
    (6) Consideration of request. When an application for review has 
been filed with the Assistant Chief Medical Director for Academic 
Affairs, and it has been determined that the application meets the 
requirements stated in this paragraph, all background material of the 
issues shall be reviewed. If the application does not meet the 
requirements, the grantee shall be notified of the deficiencies.
    (7) Presentation of case. If the Assistant Chief Medical Director 
for Academic Affairs believes there is no dispute as to material fact, 
the resolution of which would be materially assisted by oral testimony, 
both parties shall be notified of the issues to be considered, and take 
steps to afford both parties the opportunity for presenting their cases, 
at the option of the Assistant Chief Medical Director for Academic 
Affairs, in whole or in part in writing, or in an informal conference. 
Where it is concluded that oral testimony is required to resolve a 
dispute over a material fact, both parties shall be afforded an 
opportunity to present and cross-examine witnesses at a hearing.
    (8) Decision. After both parties have presented their cases, the 
Assistant Chief Medical Director for Academic Affairs shall prepare an 
initial written decision which shall include findings of fact and 
conclusions based thereon. Copies of the decision shall be mailed 
promptly to each of the parties together with a notice informing them of 
their right to appeal the decision of the Secretary, or to the officer 
or employee to whom the Secretary has delegated such authority, by 
submitting written comments thereon within a specified reasonable time.
    (9) Final decision. Upon filing comments with the Secretary, or 
designated officer or employee, the review of the initial decision shall 
be conducted on the basis of the decision, the hearing record, if any, 
and written comments submitted by both parties. The decision shall be 
final.
    (10) Participation by a party. Either party may participate in 
person, or by counsel pursuant to the procedure set forth in this 
section.
    (b) Termination for convenience. The Department of Veterans Affairs 
or the grantee may terminate a grant in whole or in part when both 
parties agree that the continuation of the proj ect would not produce 
beneficial results commensurate with the further expenditure of funds. 
The two parties shall agree upon the termination conditions, including 
the effective date and, in the case of partial terminations, the portion 
to be terminated. The grantee shall not incur new obligations for the 
terminated portion after the effective date, and shall cancel as many 
outstanding obligations as possible. The Department of Veterans Affairs 
shall allow full credit to the grantee for the Department of Veterans 
Affairs share of the noncancellable obligations, properly incurred by 
the grantee prior to termination.
    (c) Suspension procedures. When a grantee has failed to comply with 
the terms of the grant agreement and conditions or standards, the 
Department of Veterans Affairs may, on reasonable

[[Page 700]]

notice to the grantee, suspend the grant and withhold further payments, 
prohibit the grantee from incurring additional obligations of funds, 
pending corrective action by the grantee, or make a decision to 
terminate as described in paragraph (a) of this section. The Department 
of Veterans Affairs shall allow all necessary and proper costs that the 
grantee could not reasonably avoid during the period of suspension 
provided that they meet the provisions of the applicable Federal cost 
principles.

[42 FR 54805, Oct. 11, 1977. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.264  Recoupments and releases.

    In any case where the Department of Veterans Affairs or a grantee's 
obligations under an exchange of information agreement implemented by 
grant funds are terminated, or where grant-financed equipment or 
facilities cease to be used for the purposes for which grant support was 
given, or when grant-financed property is transferred, the grantee shall 
return the proportionate value of such equipment or facility as was 
financed by the grant. When it is determined the Department of Veterans 
Affairs equitable interest is greater that proportionate value, then a 
claim in such greater amount shall be asserted. If it is determined an 
amount less than proportionate value or less than the Department of 
Veterans Affairs equitable interest should be recouped, or that the 
Department of Veterans Affairs should execute any releases, then a 
proposal concerning such a settlement or releases complete with 
explanations and justifications shall be submitted to the Assistant 
Chief Medical Director for Academic Affairs for a final determination.

[42 FR 54805, Oct. 11, 1977. Redesignated at 61 FR 21966, May 13, 1996]



Sec. 17.265  Payments.

    Payments of grant funds are made to grantees through a letter-of-
credit, an advance by Treasury check, or a reimbursement by Treasury 
check, as appropriate. A letter-of-credit is an instrument certified by 
an authorized official of the Department of Veterans Affairs which 
authorizes the grantee to draw funds when needed from the Treasury, 
through a Federal Reserve bank and the grantee's commercial bank and 
shall be used by the Department of Veterans Affairs where all the 
following conditions exist:
    (a) When there is or will be a continuing relationship between the 
grantee and the Department of Veterans Affairs for at least a 12-month 
period and the total amount of advance payments expected to be received 
within that period is $250,000, or more;
    (b) When the grantee has established or demonstrated the willingness 
and ability to maintain procedures that will minimize the time elapsing 
between the transfer of funds and their disbursement by the grantee; and
    (c) When the grantee's financial management meets the standards for 
fund control and accountability. An advance by Treasury check is a 
payment made to a grantee upon its request before outlays are made by 
the grantee, or through use of predetermined payment schedules and shall 
be used by the Department of Veterans Affairs when the grantee meets all 
of the above requirements of this section except that advances will be 
less than $250,000, or for a period less than 12 months. Reimbursement 
by Treasury check is a payment made to a grantee upon request for 
reimbursement from the grantee and shall be the preferred method when 
the grantee does not meet the requirements of paragraphs (b) and (c) of 
this section. This method may be used on any construction agreement, or 
if the major portion of the program is accomplished through private 
market financing or Federal loans, and the Federal assistance 
constitutes a minor portion of the program. When the reimbursement 
method is used, the Department of Veterans Affairs shall make payment 
within 30 days after receipt of the billing, unless billing is improper. 
Unless otherwise required by law, payments shall not be withheld for 
proper charges at any time during the grant period unless a grantee has 
failed to comply with the program objectives, award conditions, or 
Federal reporting requirements; or the grantee is indebted.

[42 FR 54806, Oct. 11, 1977. Redesignated at 61 FR 21966, May 13, 1996]

[[Page 701]]



Sec. 17.266  Copyrights and patents.

    If a grant-supported program results in copyrightable material or 
patentable inventions or discoveries, the United States Government shall 
have the right to use such publications or inventions on a royalty-free 
basis.

[33 FR 6013, Apr. 19, 1968. Redesignated at 61 FR 21966, May 13, 1996]

   Civilian Health and Medical Program of the Department of Veterans 
Affairs (CHAMPVA)--Medical Care for Survivors and Dependents of Certain 
                                Veterans

    Source: 63 FR 48102, Sept. 9, 1998, unless otherwise noted.



Sec. 17.270  General provisions.

    (a) CHAMPVA is the Civilian Health and Medical Program of the 
Department of Veterans Affairs and is administered by the Health 
Administration Center, Denver, Colorado. Pursuant to 38 U.S.C. 1713, VA 
is authorized to provide medical care in the same or similar manner and 
subject to the same or similar limitations as medical care furnished to 
certain dependents and survivors of active duty and retired members of 
the Armed Forces. The CHAMPVA program is designed to accomplish this 
purpose. Under CHAMPVA, VA shares the cost of medically necessary 
services and supplies for eligible beneficiaries as set forth in 
Sec. Sec. 17.271 through 17.278.
    (b) For purposes of this section, the definitions of ``child,'' 
``service-connected condition/disability,'' ``spouse,'' and ``surviving 
spouse'' must be those set forth further in 38 U.S.C. 101. The term 
``fiscal'' year refers to October 1, through September 30.

(Authority: 38 U.S.C. 1713)



Sec. 17.271  Eligibility.

    (a) General entitlement. The following persons are eligible for 
CHAMPVA benefits provided that they are not eligible under Title 10 for 
the TRICARE Program or Part A of Title XVIII of the Social Security Act 
(Medicare) except as provided in paragraph (b) of this section.
    (1) The spouse or child of a veteran who has been adjudicated by VA 
as having a permanent and total service-connected disability;
    (2) The surviving spouse or child of a veteran who died as a result 
of an adjudicated service-connected condition(s); or who at the time of 
death was adjudicated permanently and totally disabled from a service-
connected condition(s);
    (3) The surviving spouse or child of a person who died on active 
military service and in the line of duty and not due to such person's 
own misconduct; and
    (4) An eligible child who is pursuing a full-time course of 
instruction approved under 38 U.S.C. Chapter 36, and who incurs a 
disabling illness or injury while pursuing such course (between terms, 
semesters or quarters; or during a vacation or holiday period) that is 
not the result of his or her own willful misconduct and that results in 
the inability to continue or resume the chosen program of education must 
remain eligible for medical care until:
    (i) The end of the six-month period beginning on the date the 
disability is removed; or
    (ii) The end of the two-year period beginning on the date of the 
onset of the disability; or
    (iii) The twenty-third birthday of the child, whichever occurs 
first.


(Authority: 38 U.S.C. 1713)

    (b) CHAMPVA and Medicare entitlement. (1) Individuals under age 65 
who are entitled to Medicare Part A and enrolled in Medicare Part B, 
retain CHAMPVA eligibility as secondary payer to Medicare Parts A and B, 
Medicare supplemental insurance plans, and Medicare HMO plans.
    (2) Individuals age 65 or older, and not entitled to Medicare Part 
A, retain CHAMPVA eligibility.

    Note to paragraph (b)(2): If the person is not eligible for Part A 
of Medicare, a Social Security Administration ``Notice of Disallowance'' 
certifying that fact must be submitted. Additionally, if the individual 
is entitled to only Part B of Medicare, but not Part A, or Part A 
through the Premium HI provisions, a copy of the individual's Medicare 
card or other official documentation noting this must be provided.

    (3) Individuals age 65 on or after June 5, 2001, who are entitled to 
Medicare

[[Page 702]]

Part A and enrolled in Medicare Part B, are eligible for CHAMPVA as 
secondary payer to Medicare Parts A and B, Medicare supplemental 
insurance plans, and Medicare HMO plans for services received on or 
after October 1, 2001.
    (4) Individuals age 65 or older prior to June 5, 2001, who are 
entitled to Medicare Part A and who have not purchased Medicare Part B, 
are eligible for CHAMPVA as secondary payer to Medicare Part A and any 
other health insurance for services received on or after October 1, 
2001.
    (5) Individuals age 65 or older prior to June 5, 2001, who are 
entitled to Medicare Part A and who have purchased Medicare Part B must 
continue to carry Part B to retain CHAMPVA eligibility as secondary 
payer for services received on or after October 1, 2001.

(Authority: 38 U.S.C. 1713(d))

    Note to Sec. 17.271: Eligibility criteria specific to Dependency 
and Indemnity Compensation (DIC) benefits are not applicable to CHAMPVA 
eligibility determinations.

[63 FR 48102, Sept. 9, 1998, as amended at 67 FR 4359, Jan. 30, 2002]



Sec. 17.272  Benefits limitations/exclusions.

    (a) Benefits cover allowable expenses for medical services and 
supplies that are medically necessary and appropriate for the treatment 
of a condition and that are not specifically excluded from program 
coverage. Covered benefits may have limitations. The fact that a 
physician may prescribe, order, recommend, or approve a service or 
supply does not, of itself, make it medically necessary or make the 
charge an allowable expense, even though it is not listed specifically 
as an exclusion. The following are specifically excluded from program 
coverage:
    (1) Services, procedures or supplies for which the beneficiary has 
no legal obligation to pay, or for which no charge would be made in the 
absence of coverage under a health benefits plan.
    (2) Services and supplies required as a result of an occupational 
disease or injury for which benefits are payable under workers' 
compensation or similar protection plan (whether or not such benefits 
have been applied for or paid) except when such benefits are exhausted 
and are otherwise not excluded from CHAMPVA coverage.
    (3) Services and supplies that are paid directly or indirectly by a 
local, State or Federal government agency (Medicaid excluded), including 
court-ordered treatment. In the case of the following exceptions, 
CHAMPVA assumes primary payer status:
    (i) Medicaid.
    (ii) State Victims of Crime Compensation Programs.
    (4) Services and supplies that are not medically or psychologically 
necessary for the diagnosis or treatment of a covered condition 
(including mental disorder) or injury.
    (5) Radiology, laboratory, and pathological services and machine 
diagnostic testing not related to a specific illness or injury or a 
definitive set of symptoms.
    (6) Services and supplies above the appropriate level required to 
provide necessary medical care.
    (7) Services and supplies related to an inpatient admission 
primarily to perform diagnostic tests, examinations, and procedures that 
could have been and are performed routinely on an outpatient basis.
    (8) Postpartum inpatient stay of a mother for purposes of staying 
with the newborn infant (primarily for the purpose of breast feeding the 
infant) when the infant (but not the mother) requires the extended stay; 
or continued inpatient stay of a newborn infant primarily for purposes 
of remaining with the mother when the mother (but not the newborn 
infant) requires extended postpartum inpatient stay.
    (9) Therapeutic absences from an inpatient facility or residential 
treatment center (RTC).
    (10) Custodial care.
    (11) Inpatient stays primarily for domiciliary care purposes.
    (12) Inpatient stays primarily for rest or rest cures.
    (13) Services and supplies provided as a part of, or under, a 
scientific or medical study, grant, or research program.
    (14) Services and supplies not provided in accordance with accepted 
professional medical standards or related to experimental or 
investigational procedures or treatment regimens.

[[Page 703]]

    (15) Services or supplies prescribed or provided by a member of the 
beneficiary's immediate family, or a person living in the beneficiary's 
or sponsor's household.
    (16) Services and supplies that are (or are eligible to be) payable 
under another medical insurance or program, either private or 
governmental, such as coverage through employment or Medicare.
    (17) Services or supplies subject to preauthorization (see Sec. 
17.273) that were obtained without the required preauthorization; and 
services and supplies that were not provided according to the terms of 
the preauthorization.
    (18) Inpatient stays primarily to control or detain a runaway child, 
whether or not admission is to an authorized institution.
    (19) Services and supplies (to include prescription medications) in 
connection with cosmetic surgery which is performed to primarily improve 
physical appearance or for psychological purposes or to restore form 
without correcting or materially improving a bodily function.
    (20) Electrolysis.
    (21) Dental care with the following exceptions:
    (i) Dental care that is medically necessary in the treatment of an 
otherwise covered medical condition, is an integral part of the 
treatment of such medical condition, and is essential to the control of 
the primary medical condition.
    (ii) Dental care required in preparation for, or as a result of, 
radiation therapy for oral or facial cancer.
    (iii) Gingival Hyperplasia.
    (iv) Loss of jaw substance due to direct trauma to the jaw or due to 
treatment of neoplasm.
    (v) Intraoral abscess when it extends beyond the dental alveolus.
    (vi) Extraoral abscess.
    (vii) Cellulitis and osteitis which is clearly exacerbating and 
directly affecting a medical condition currently under treatment.
    (viii) Repair of fracture, dislocation, and other injuries of the 
jaw, to include removal of teeth and tooth fragments only when such 
removal is incidental to the repair of the jaw.
    (ix) Treatment for stabilization of myofascial pain dysfunction 
syndrome, also referred to as temporomandibular joint (TMJ) syndrome. 
Authorization is limited to initial radiographs, up to four office 
visits, and the construction of an occlusal splint.
    (x) Total or complete ankyloglossia.
    (xi) Adjunctive dental and orthodontic support for cleft palate.
    (xii) Prosthetic replacement of jaw due to trauma or cancer.
    (22) Nonsurgical treatment of obesity or morbid obesity for dietary 
control or weight reduction (with the exception of gastric bypass, 
gastric stapling, or gastroplasty procedures in connection with morbid 
obesity when determined to be medically necessary) including 
prescription medications.
    (23) Services and supplies related to transsexualism or other 
similar conditions such as gender dysphoria (including, but not limited 
to, intersex surgery and psychotherapy, except for ambiguous genitalia 
which was documented to be present at birth).
    (24) Sex therapy, sexual advice, sexual counseling, sex behavior 
modification, psychotherapy for mental disorders involving sexual 
deviations (e.g., transvestic fetish), or other similar services, and 
any supplies provided in connection with therapy for sexual dysfunctions 
or inadequacies.
    (25) Removal of corns or calluses or trimming of toenails and other 
routine foot care services, except those required as a result of a 
diagnosed systemic medical disease affecting the lower limbs, such as 
severe diabetes.
    (26) Services and supplies, to include psychological testing, 
provided in connection with a specific developmental disorder. The 
following exception applies: Diagnostic and evaluative services required 
to arrive at a differential diagnosis for an otherwise eligible child 
unless the state is required to provide those services under Public Law 
94-142, Education for All Handicapped Children Act of 1975 as amended, 
see 20 U.S.C. chapter 33.
    (27) Surgery to reverse voluntary surgical sterilization procedures.
    (28) Services and supplies related to artificial insemination 
(including semen donors and semen banks), in vitro fertilization, gamete

[[Page 704]]

intrafallopian transfer and all other noncoital reproductive 
technologies.
    (29) Nonprescription contraceptives.
    (30) Diagnostic tests to establish paternity of a child; or tests to 
determine sex of an unborn child.
    (31) Preventive care (such as routine, annual, or employment-
requested physical examinations; routine screening procedures; and 
immunizations). The following exceptions apply:
    (i) Well-child care from birth to age six. Periodic health 
examinations designed for prevention, early detection, and treatment of 
disease are covered to include screening procedures, immunizations, and 
risk counseling. The following services are payable when required as 
part of a well-child care program and when rendered by the attending 
pediatrician, family physician, or a pediatric nurse practitioner.
    (A) Newborn examination, heredity and metabolic screening, and 
newborn circumcision.
    (B) Periodic health supervision visits intended to promote optimal 
health for infants and children to include the following services:
    (1) History and physical examination.
    (2) Vision, hearing, and dental screening.
    (3) Developmental appraisal to include body measurement.
    (4) Immunizations as recommended by the Centers for Disease Control 
(CDC) and Prevention Advisory Committee on Immunization Practices.
    (5) Pediatric blood lead level test.
    (6) Tuberculosis screening.
    (7) Blood pressure screening.
    (8) Measurement of hemoglobin and hematocrit for anemia.
    (9) Urinalysis.
    (C) Additional services or visits required because of specific 
findings or because the particular circumstances of the individual case 
are covered if medically necessary and otherwise authorized for benefits 
under CHAMPVA.
    (ii) Rabies vaccine following an animal bite.
    (iii) Tetanus vaccine following an accidental injury.
    (iv) Rh immune globulin.
    (v) Pap smears.
    (vi) Mammography tests.
    (vii) Genetic testing and counseling determined to be medically 
necessary.
    (viii) Chromosome analysis in cases of habitual abortion or 
infertility.
    (ix) Gamma globulin.
    (x) School-required physical examinations for beneficiaries through 
age 17 that are provided on or after October 1, 2001.
    (32) Chiropractic and naturopathic services.
    (33) Counseling services that are not medically necessary in the 
treatment of a diagnosed medical condition (such as educational 
counseling; vocational counseling; and counseling for socioeconomic 
purposes, stress management, life style modification, etc.).
    (34) Acupuncture, whether used as a therapeutic agent or as an 
anesthetic.
    (35) Hair transplants, wigs, or hairpieces, except that benefits may 
be extended for one wig or hairpiece per beneficiary (lifetime maximum) 
when the attending physician certifies that alopecia has resulted from 
treatment of malignant disease and the beneficiary certifies that a wig 
or hairpiece has not been obtained previously through the U.S. 
Government (including the Department of Veterans Affairs). The wig or 
hairpiece benefit does not include coverage for the following:
    (i) Maintenance, wig or hairpiece supplies, or replacement of the 
wig or hairpiece.
    (ii) Hair transplant or any other surgical procedure involving the 
attachment of hair or a wig or hairpiece to the scalp.
    (iii) Any diagnostic or therapeutic method or supply intended to 
encourage hair growth.
    (36) Self-help, academic education or vocational training services 
and supplies.
    (37) Exercise equipment, spas, whirlpools, hot tubs, swimming pools, 
health club membership or other such charges or items.
    (38) General exercise programs, even if recommended by a physician.
    (39) Services of an audiologist or speech therapist, except when 
prescribed by a physician and rendered as a part of treatment addressed 
to the physical defect itself and not to any educational or occupational 
deficit.
    (40) Eye exercises or visual training (orthoptics).

[[Page 705]]

    (41) Eye and hearing examinations except when rendered in connection 
with medical or surgical treatment of a covered illness or injury or in 
connection with well-child care.
    (42) Eyeglasses, spectacles, contact lenses, or other optical 
devices with the following exceptions:
    (i) When necessary to perform the function of the human lens, lost 
as a result of intraocular surgery, ocular injury or congenital absence.
    (ii) Pinhole glasses prescribed for use after surgery for detached 
retina.
    (iii) Lenses prescribed as ``treatment'' instead of surgery for the 
following conditions:
    (A) Contact lenses used for treatment of infantile glaucoma.
    (B) Corneal or scleral lenses prescribed in connection with 
treatment of keratoconus.
    (C) Scleral lenses prescribed to retain moisture when normal tearing 
is not present or is inadequate.
    (D) Corneal or scleral lenses prescribed to reduce a corneal 
irregularity other than astigmatism.
    (iv) The specified benefits are limited to one set of lenses related 
to one qualifying eye condition as set forth in paragraphs 
(a)(42)(iii)(A) through (D) of this section. If there is a prescription 
change requiring a new set of lenses, but still related to the 
qualifying eye condition, benefits may be extended for a second set of 
lenses, subject to medical review.
    (43) Hearing aids or other auditory sensory enhancing devices.
    (44) Prostheses with the following exceptions:
    (i) Artificial limbs.
    (ii) Voice prostheses.
    (iii) Eyes.
    (iv) Items surgically inserted in the body as an integral part of a 
surgical procedure.
    (v) Dental prostheses specifically required in connection with 
otherwise covered orthodontia directly related to the surgical 
correction of a cleft palate anomaly.
    (45) Orthopedic shoes, arch supports, shoe inserts, and other 
supportive devices for the feet, including special ordered, custom-made 
built-up shoes, or regular shoes later built up with the following 
exceptions:
    (i) Shoes that are an integral part of an orthopedic brace, and 
which cannot be used separately from the brace.
    (ii) Extra-depth shoes with inserts or custom molded shoes with 
inserts for individuals with diabetes.
    (46) Services or advice rendered by telephone are excluded except 
that a diagnostic or monitoring procedure which incorporates electronic 
transmission of data or remote detection and measurement of a condition, 
activity, or function (biotelemetry) is covered when:
    (i) The procedure, without electronic data transmission, is a 
covered benefit; and
    (ii) The addition of electronic data transmission or biotelemetry 
improves the management of a clinical condition in defined 
circumstances; and
    (iii) The electronic data or biotelemetry device has been classified 
by the U.S. Food and Drug Administration, either separately or as part 
of a system, for use consistent with the medical condition and clinical 
management of such condition.
    (47) Air conditioners, humidifiers, dehumidifiers, and purifiers.
    (48) Elevators.
    (49) Alterations to living spaces or permanent features attached 
thereto, even when necessary to accommodate installation of covered 
durable medical equipment or to facilitate entrance or exit.
    (50) Items of clothing, even if required by virtue of an allergy 
(such as cotton fabric versus synthetic fabric and vegetable-dyed 
shoes).
    (51) Food, food substitutes, vitamins or other nutritional 
supplements, including those related to prenatal care for a home patient 
whose condition permits oral feeding.
    (52) Enuretic (bed-wetting) devices; enuretic conditioning programs.
    (53) Autopsy and post-mortem examinations.
    (54) All camping, even when organized for a specific therapeutic 
purpose (such as diabetic camp or a camp for emotionally disturbed 
children), or when offered as a part of an otherwise covered treatment 
plan.
    (55) Housekeeping, homemaker, or attendant services, including a 
sitter or companion.

[[Page 706]]

    (56) Personal comfort or convenience items, such as beauty and 
barber services, radio, television, and telephone.
    (57) Smoking cessation services and supplies.
    (58) Megavitamin psychiatric therapy; orthomolecular psychiatric 
therapy.
    (59) All transportation except for specialized transportation with 
life sustaining equipment, when medically required for the treatment of 
a covered condition.
    (60) Inpatient mental health services in excess of 30 days in any 
fiscal year (or in an admission), in the case of a patient nineteen 
years of age or older; 45 days in any fiscal year (or in an admission), 
in the case of a patient under 19 years of age; or 150 days of 
residential treatment care in any fiscal year (or in an admission) 
unless a waiver for extended coverage is granted in advance.
    (61) Outpatient mental health services in excess of 23 visits in a 
fiscal year unless a waiver for extended coverage is granted in advance.
    (62) Institutional services for partial hospitalization in excess of 
60 treatment days in any fiscal year (or in an admission) unless a 
waiver for extended coverage is granted in advance.
    (63) Detoxification in a hospital setting or rehabilitation facility 
in excess of seven days.
    (64) Outpatient substance abuse services in excess of 60 visits 
during a benefit period. A benefit period begins with the first date of 
covered service and ends 365 days later.
    (65) Family therapy for substance abuse in excess of 15 visits 
during a benefit period. A benefit period begins with the first date of 
covered service and ends 365 days later.
    (66) Services that are provided to a beneficiary who is referred to 
a provider of such services by a provider who has an economic interest 
in the facility to which the patient is referred, unless a waiver is 
granted.
    (67) Abortion except when a physician certifies that the life of the 
mother would be endangered if the fetus were carried to term.
    (68) Abortion counseling.
    (69) Aversion therapy.
    (70) Rental or purchase of biofeedback equipment.
    (71) Biofeedback therapy for treatment of ordinary muscle tension 
states (including tension headaches) or for psychosomatic conditions.
    (72) Drug maintenance programs where one addictive drug is 
substituted for another, such as methadone substituted for heroin.
    (73) Immunotherapy for malignant diseases except for treatment of 
Stage O and Stage A carcinoma of the bladder.
    (74) Services and supplies provided by other than a hospital, such 
as nonskilled nursing homes, intermediate care facilities, halfway 
houses, homes for the aged, or other institutions of similar purpose.
    (75) Services performed when the patient is not physically present.
    (76) Medical photography.
    (77) Special tutoring.
    (78) Surgery for psychological reasons.
    (79) Treatment of premenstrual syndrome (PMS).
    (80) Medications not requiring a prescription, except for insulin 
and related diabetic testing supplies and syringes.
    (81) Thermography.
    (82) Removal of tattoos.
    (83) Penile implant/testicular prosthesis procedures and related 
supplies for psychological impotence.
    (84) Dermabrasion of the face except in those cases where coverage 
has been authorized for reconstructive or plastic surgery required to 
restore body form following an accidental injury or to revise 
disfiguring and extensive scars resulting from neoplastic surgery.
    (85) Chemical peeling for facial wrinkles.
    (86) Panniculectomy, body sculpting procedures.
    (b) CHAMPVA-determined allowable amount.
    (1) The term allowable amount is the maximum CHAMPVA-determined 
level of payment to a hospital or other authorized institutional 
provider, a physician or other authorized individual professional 
provider, or other authorized provider for covered services. The

[[Page 707]]

CHAMPVA-allowable amount is determined prior to cost sharing and the 
application of deductibles and/or other health insurance.
    (2) A Medicare-participating hospital must accept the CHAMPVA-
determined allowable amount for inpatient services as payment-in-full. 
(Reference 42 CFR parts 489 and 1003).
    (3) An authorized provider of covered medical services or supplies 
must accept the CHAMPVA-determined allowable amount as payment-in-full.
    (4) A provider who has collected and not made appropriate refund, or 
attempts to collect from the beneficiary, any amount in excess of the 
CHAMPVA-determined allowable amount may be subject to exclusion from 
Federal benefit programs.

(Authority: 38 U.S.C. 1713)

[63 FR 48102, Sept. 9, 1998, as amended at 67 FR 4359, Jan. 30, 2002]



Sec. 17.273  Preauthorization.

    Preauthorization or advance approval is required for any of the 
following:
    (a) Non-emergent inpatient mental health and substance abuse care 
including admission of emotionally disturbed children and adolescents to 
residential treatment centers.
    (b) All admissions to a partial hospitalization program (including 
alcohol rehabilitation).
    (c) Outpatient mental health visits in excess of 23 per calendar 
year and/or more than two (2) sessions per week.
    (d) Dental care.
    (e) Durable medical equipment with a purchase or total rental price 
in excess of $300.00.
    (f) Organ transplants.

(Authority: 38 U.S.C. 1713)



Sec. 17.274  Cost sharing.

    (a) With the exception of services obtained through VA facilities, 
CHAMPVA is a cost-sharing program in which the cost of covered services 
is shared with the beneficiary. CHAMPVA pays the CHAMPVA-determined 
allowable amount less the deductible, if applicable, and less the 
beneficiary cost share.
    (b) In addition to the beneficiary cost share, an annual (calendar 
year) outpatient deductible requirement ($50 per beneficiary or $100 per 
family) must be satisfied prior to the payment of outpatient benefits. 
There is no deductible requirement for inpatient services or for 
services provided through VA facilities.
    (c) To provide financial protection against the impact of a long-
term illness or injury, a calendar year cost limit or ``catastrophic 
cap'' has been placed on the beneficiary cost-share amount for covered 
services and supplies. Credits to the annual catastrophic cap are 
limited to the applied annual deductible(s) and the beneficiary cost-
share amount. Costs above the CHAMPVA-allowable amount, as well as costs 
associated with non-covered services are not credited to the 
catastrophic cap computation. After a family has paid the maximum cost-
share and deductible amounts for a calendar year, CHAMPVA will pay 
allowable amounts for the remaining covered services through the end of 
that calendar year.
    (i) Through December 31, 2001, the annual cap on cost sharing is 
$7,500 per CHAMPVA-eligible family.
    (ii) Effective January 1, 2002, the cap on cost sharing is $3,000 
per CHAMPVA-eligible family.
    (d) If the CHAMPVA benefit payment is under $1.00, payment will not 
be issued. Catastrophic cap and deductible will, however, be credited.

(Authority: 38 U.S.C. 1713)

[67 FR 4359, Jan. 30, 2002; 67 FR 6875, Feb. 14, 2002]



Sec. 17.275  Claim filing deadline.

    (a) Unless an exception is granted under paragraph (b) of this 
section, claims for medical services and supplies must be filed with the 
Center no later than:
    (1) One year after the date of service; or
    (2) In the case of inpatient care, one year after the date of 
discharge; or
    (3) In the case of retroactive approval for medical services/
supplies, 180 days following beneficiary notification of authorization; 
or
    (4) In the case of retroactive approval of CHAMPVA eligibility, 180 
days following notification to the beneficiary

[[Page 708]]

of authorization for services occurring on or after the date of first 
eligibility.
    (b) Requests for an exception to the claim filing deadline must be 
submitted, in writing, to the Center and include a complete explanation 
of the circumstances resulting in late filing along with all available 
supporting documentation. Each request for an exception to the claim 
filing deadline will be reviewed individually and considered on its own 
merit. The Center Director may grant exceptions to the requirements in 
paragraph (a) if he or she determines that there was good cause for 
missing the filing deadline. For example, when dual coverage exists 
CHAMPVA payment, if any, cannot be determined until after the primary 
insurance carrier has adjudicated the claim. In such circumstances an 
exception may be granted provided that the delay on the part of the 
primary insurance carrier is not attributable to the beneficiary. Delays 
due to provider billing procedures do not constitute a valid basis for 
an exception.



Sec. 17.276  Appeal/review process.

    Notice of the initial determination regarding payment of CHAMPVA 
benefits will be provided to the beneficiary on a CHAMPVA Explanation of 
Benefits (EOB) form. The EOB form is generated by the CHAMPVA automated 
payment processing system. If a beneficiary disagrees with the 
determination concerning covered services or calculation of benefits, he 
or she may request reconsideration. Such requests must be submitted to 
the Center in writing within one year of the date of the initial 
determination. The request must state why the beneficiary believes the 
decision is in error and must include any new and relevant information 
not previously considered. Any request for reconsideration that does not 
identify the reason for dispute will be returned to the claimant without 
further consideration. After reviewing the claim and any relevant 
supporting documentation, a CHAMPVA benefits advisor will issue a 
written determination to the beneficiary that affirms, reverses or 
modifies the previous decision. If the beneficiary is still 
dissatisfied, within 90 days of the date of the decision he or she may 
make a written request for review by the Center Director. The Director 
will review the claim, and any relevant supporting documentation, and 
issue a decision in writing that affirms, reverses or modifies the 
previous decision. The decision of the Director with respect to benefit 
coverage and computation of benefits is final.

(Authority: 38 U.S.C. 1713)

    Note to Sec. 17.276: Denial of CHAMPVA benefits based on legal 
eligibility requirements may be appealed to the Board of Veterans' 
Appeals in accordance with 38 CFR part 20. Medical determinations are 
not appealable to the Board. 20 CFR 20.101.



Sec. 17.277  Third-party liability/medical care cost recovery.

    The Center will actively pursue third-party liability/medical care 
cost recovery in accordance with applicable law.



Sec. 17.278  Confidentiality of records.

    Confidentiality of records will be maintained in accordance with 38 
CFR 1.460 through 1.582.

                Grants to the Republic of the Philippines



Sec. 17.350  The program of assistance to the Philippines.

    The provisions of this section through Sec. 17.370 are applicable 
to grants to the Republic of the Philippines and to furnishing medical 
services under 38 U.S.C. 1724 and 1732, and 38 CFR 17.36 through 17.40, 
and implement the ``Agreement between the Government of the United 
States of America and the Government of the Republic of the Philippines 
on the Use of the Veterans Memorial Medical Center and the Provision of 
Inpatient and Outpatient Medical Care and Treatment of Veterans by the 
Government of the Philippines and Furnishing of Grants-in-Aid Thereof by 
the Government of the United States of America,'' dated April 25, 1967 
(Treaties and Other International Acts Series 6248), and a subsidiary 
agreement of the same date, both of which were entered into pursuant to 
the provisions of 38 U.S.C. 1731-

[[Page 709]]

1734. All such implementing regulations have been approved by the 
Director of the Office of Management and Budget.

[33 FR 5300, Apr. 3, 1968, as amended at 45 FR 47680, July 16, 1980; 47 
FR 58250, Dec. 30, 1982; 61 FR 21969, May 13, 1996]



Sec. 17.351  Grants for the replacement and upgrading of equipment at 
Veterans Memorial Medical Center.

    Grants to assist the Republic of the Philippines in the replacement 
and upgrading of equipment and in rehabilitating the physical plant and 
facilities of the Veterans Memorial Medical Center, which the Secretary 
may make under the authority cited in Sec. 17.350, shall be subject to 
such terms and conditions as the Secretary may prescribe. Among such 
terms and conditions to which the grants will be subject, will be 
advance approval by the U.S. Department of Veterans Affairs of equipment 
purchases, maintenance or repair projects. The awarding of such grants 
is further subject to the limitations on available funds in Sec. 
17.352.

(Authority: 38 U.S.C. 1732, as amended by Pub. L. 97-72, sec. 107(c)(1))

[33 FR 5300, Apr. 3, 1968, as amended at 45 FR 47680, July 16, 1980; 47 
FR 58250, Dec. 30, 1982]



Sec. 17.352  Amounts and use of grant funds for the replacement and 
upgrading of equipment.

    Grants awarded under Sec. 17.351 shall not exceed the amounts 
provided by the appropriation acts of the Congress of the United States 
for the purpose. Funds appropriated for the upgrading and replacement of 
equipment at the Veterans Memorial Medical Center, or for rehabilitating 
its equipment, shall remain available in consecutive fiscal years until 
expanded, but in no event shall exceed the amount of $500,000 per year. 
It is not intended that such funds will be utilized to expand the 
medical center facilities. Upgrading of equipment, however, would permit 
purchase of new and additional equipment not now possessed by the 
medical center.

(Authority: 38 U.S.C. 1732)

[47 FR 58250, Dec. 30, 1982]



Sec. 17.355  Awards procedures.

    All applications for grants to the Republic of the Philippines under 
the provisions of Sec. 17.351 shall be submitted to the Under Secretary 
for Health or a designee for consideration.

(Authority: 38 U.S.C. 1732)

[47 FR 58250, Dec. 30, 1982, as amended at 61 FR 21969, May 13, 1996]



Sec. 17.362  Acceptance of medical supplies as payment.

    Upon request of the Government of the Republic of the Philippines, 
payment for medical and nursing home services provided to eligible 
United States veterans may consist in whole or in part, of available 
medicines, medical supplies, or equipment furnished by the Department of 
Veterans Affairs to the Veterans Memorial Medical Center at valuations 
determined by the Secretary. Such valuations shall not be less than the 
cost of the items and shall include the cost of transportation, 
arrastre, brokerage, shipping and handling charges.

(Authority: 38 U.S.C. 1732(a)(2))

[47 FR 58250, Dec. 30, 1982]



Sec. 17.363  Length of stay.

    In computing the length of stay for which payment will be made, the 
day of admission will be counted, but not the day of discharge, death, 
or transfer. Where a veteran for whom hospitalization has been 
authorized in Veterans Memorial Medical Center or a contract facility, 
is absent from the hospital for a period longer than 24 hours, no 
payment will be made for hospital care during that absence.

(Authority: 38 U.S.C. 1732)

[47 FR 58250, Dec. 30, 1982]



Sec. 17.364  Eligibility determinations.

    Determinations of legal eligibility and medical need for 
hospitalization of United States veterans for treatment rest exclusively 
with the United States Department of Veterans Affairs. Determinations as 
to various factors upon which eligibility may depend shall be made as 
follows:
    (a) Determinations of service connection. For the purpose of meeting 
any

[[Page 710]]

requirement in 38 U.S.C. 1724 and 1732, and 38 CFR 17.36 through 17.37 
for service-connected disability, the United States Department of 
Veterans Affairs shall determine that under laws it administers the 
disability in question was incurred in or aggravated by service, and
    (b) Determinations of valid service. For the purpose of determining 
the necessary prerequisite service, determinations by the Department of 
Defense of the United States as to military service shall be accepted. 
In those cases in which the United States Department of Veterans Affairs 
shall have information which it deems reliable and in conflict with the 
information upon which the Department of Defense determination was made, 
the conflicting information shall be referred to the Department of 
Defense for reconsideration and redetermination. Such determinations and 
redeterminations as to military service shall be conclusive.

(Authority: 38 U.S.C. 1712)

[47 FR 58250, Dec. 30, 1982, as amended at 61 FR 21969, May 13, 1996]



Sec. 17.365  Admission priorities.

    Appropriate provisions of Sec. 17.49 apply.

(Authority: 38 U.S.C. 1712)

[47 FR 58251, Dec. 30, 1982]



Sec. 17.366  Authorization of emergency admissions.

    The Secretary of National Defense of the Republic of the Philippines 
shall make determinations as to whether any patient should be admitted 
in emergency circumstances before the U.S. Department of Veterans 
Affairs has made a legal determination of eligibility, except that 
liability for payment will not accrue to the United States until such 
eligibility determination has been made. Eligibility determinations will 
be given effect retroactively to the date of admission when the U.S. 
Department of Veterans Affairs has been notified by telephone, telegram, 
letter, or other communication of the emergency admission within 72 
hours of the hour of admission. The Clinic Director of the VA Regional 
Office, Manila, may make an exception to the 72-hour limitation when it 
is determined that the delay in notification was fully justified. When 
any authorization cannot be made effective retroactively to the date of 
admission, it shall be effective from the date of receipt of 
notification.

[33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982]



Sec. 17.367  Republic of the Philippines to print forms.

    The Secretary of National Defense of the Republic of the Philippines 
will, with the concurrence of the Secretary of Veterans Affairs, print 
all forms for applications for hospitalization, forms for physical 
examination reports, forms for billings for services rendered, and such 
other forms as may be necessary and incident to the efficient execution 
of the program governed by the provisions of 38 U.S.C. 1724 and 1732, 
and 38 CFR 17.36 through 17.40 and Sec. Sec. 17.350 through 17.370. The 
forms will be used whenever applicable in the general operation of the 
program.

[33 FR 5301, Apr. 3, 1968, as amended at 61 FR 21969, May 13, 1996]



Sec. 17.369  Inspections.

    The U.S. Department of Veterans Affairs, through authorized 
representatives, has the right under the agreements cited in Sec. 
17.350, to inspect the Veterans Memorial Medical Center, its premises 
and all appurtenances and records to determine completeness and 
correctness of such records, and to determine according to the 
provisions of the cited agreements whether standards maintained conform 
to the necessary requirements.

[33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982]



Sec. 17.370  Termination of payments.

    Payments may be terminated if the U.S. Department of Veterans 
Affairs determines the Veterans Memorial Medical Center has not replaced 
and upgraded as needed equipment during the period in which the 
agreements cited in Sec. 17.50 are in effect or has not rehabilitated 
the existing physical plant and facilities to place the medical center 
on a sound and effective operating basis, or has not maintained the 
medical center in a well-equipped

[[Page 711]]

and effective operating condition. Payments, however, will not be 
stopped unless the Veterans Memorial Medical Center has been given at 
least 60 days advance written notice of intent to stop payments.

(Authority: 38 U.S.C. 1732)

[33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982]

     Confidentiality of Healthcare Quality Assurance Review Records

    Authority: 38 U.S.C. 5705.

    Source: 59 FR 53355, Oct. 24, 1994, unless otherwise noted.



Sec. 17.500  General.

    (a) Section 5705, title 38, United States Code was enacted to 
protect the integrity of the VA's medical quality assurance program by 
making confidential and privileged certain records and documents 
generated by this program and information contained therein. Disclosure 
of quality assurance records and documents made confidential and 
privileged by 38 U.S.C. 5705 and the regulations in Sec. Sec. 17.500 
through 17.511 may only be made in accordance with the provisions of 38 
U.S.C. 5705 and those regulations.
    (b) The purpose of the regulations in Sec. Sec. 17.500 through 
17.511 is to specify and provide for the limited disclosure of those 
quality assurance documents which are confidential under the provisions 
of 38 U.S.C. 5705.
    (c) For purposes of the regulations in Sec. Sec. 17.500 through 
17.511, the VA's medical quality assurance program consists of 
systematic healthcare reviews carried out by or for VA for the purpose 
of improving the quality of medical care or improving the utilization of 
healthcare resources in VA medical facilities. These review activities 
may involve continuous or periodic data collection and may relate to 
either the structure, process, or outcome of health care provided in the 
VA.
    (d) Nothing in the regulations in Sec. Sec. 17.500 through 17.511 
shall be construed as authority to withhold any record or document from 
a committee or subcommittee of either House of Congress or any joint 
committee or subcommittee of Congress, if such record or document 
pertains to any matter within the jurisdiction of such committee or 
joint committee.
    (e) The regulations in Sec. Sec. 17.500 through 17.511 do not waive 
the sovereign immunity of the United States, and do not waive the 
confidentiality provisions and disclosure restrictions of 38 U.S.C. 
5705.

(Authority: 38 U.S.C. 5705)



Sec. 17.501  Confidential and privileged documents.

    (a) Documents and parts of documents are considered confidential and 
privileged if they were produced by or for the VA in the process of 
conducting systematic healthcare reviews for the purpose of improving 
the quality of health care or improving the utilization of healthcare 
resources in VA healthcare facilities and meet the criteria in 
paragraphs (b) and (c) of this section. The four classes of healthcare 
quality assurance reviews with examples are:
    (1) Monitoring and evaluation reviews conducted by a facility:
    (i) Medical records reviews,
    (ii) Drug usage evaluations,
    (iii) Blood usage reviews,
    (iv) Surgical case/invasive procedure reviews,
    (v) Service and program monitoring including monitoring performed by 
individual services or programs, several services or programs working 
together, or individuals from several services or programs working 
together as a team,
    (vi) Mortality and morbidity reviews,
    (vii) Infection control review and surveillance,
    (viii) Occurrence screening,
    (ix) Tort claims peer reviews (except reviews performed to satisfy 
the requirements of a governmental body or a professional health care 
organization which is licensing practitioners or monitoring their 
professional performance),
    (x) Admission and continued stay reviews,
    (xi) Diagnostic studies utilization reviews,
    (xii) Reports of special incidents (VA Form 10-2633 or similar 
forms) and follow-up documents unless developed during or as a result of 
a Board of Investigation;

[[Page 712]]

    (2) Focused reviews which address specific issues or incidents and 
which are designated by the reviewing office at the outset of the review 
as protected by 38 U.S.C. 5705 and the regulations in Sec. Sec. 17.500 
through 17.511; focused reviews may be either:
    (i) Facility focused reviews;
    (ii) VA Central Office or Regional focused reviews;
    (3) VA Central Office or Regional general oversight reviews to 
assess facility compliance with VA program requirements if the reviews 
are designated by the reviewing office at the outset of the review as 
protected by 38 U.S.C. 5705 and the regulations in Sec. Sec. 17.500 
through 17.511; and
    (4) Contracted external reviews of care, specifically designated in 
the contract or agreement as reviews protected by 38 U.S.C. 5705 and the 
regulations in Sec. Sec. 17.500 through 17.511.
    (b) The Under Secretary for Health, Regional Director or facility 
Director will describe in advance in writing those quality assurance 
activities included under the classes of healthcare quality assurance 
reviews listed in paragraph (a) of this section. Only documents and 
parts of documents resulting from those activities which have been so 
described are protected by 38 U.S.C. 5705 and the regulations in 
Sec. Sec. 17.500 through 17.511. If an activity is not described in a 
VA Central Office or Regional policy document, this requirement may be 
satisfied at the facility level by description in advance of the 
activity and its designation as protected in the facility quality 
assurance plan or other policy document.
    (c) Documents and parts of documents generated by activities which 
meet the criteria in paragraphs (a) and (b) of this section shall be 
confidential and privileged only if they:
    (1) Identify, either implicitly or explicitly, individual 
practitioners, patients, or reviewers except as provided in paragraph 
(g)(6) of this section; or
    (2) Contain discussions relating to the quality of VA medical care 
or utilization of VA medical resources by healthcare evaluators during 
the course of a review of quality assurance information or data, even if 
they do not identify practitioners, patients, or reviewers; or
    (3) Are individual committee, service, or study team minutes, notes, 
reports, memoranda, or other documents either produced by healthcare 
evaluators in deliberating on the findings of healthcare reviews, or 
prepared for purposes of discussion or consideration by healthcare 
evaluators during a quality assurance review; or
    (4) Are memoranda, letters, or other documents from the medical 
facility to the Regional Director or VA Central Office which contain 
information generated by a quality assurance activity meeting the 
criteria in Sec. 17.501 (a) and (b); or
    (5) Are memoranda, letters, or other documents produced by the 
Regional Director or VA Central Office which either respond to or 
contain information generated by a quality assurance activity meeting 
the criteria in Sec. 17.501 (a) and (b).
    (d) Documents which meet the criteria in this section are 
confidential and privileged whether they are produced at the medical 
facility, Regional or VA Central Office levels, or by external 
contractors performing healthcare quality assurance reviews.
    (e) Documents which are confidential and privileged may be in 
written, computer, electronic, photographic or any other form.
    (f) Documents which contain confidential and privileged material in 
one part, but not in others, such as Clinical Executive Board minutes, 
should be filed and maintained as if the entire document was protected 
by 38 U.S.C. 5705. This is not required if the confidential and 
privileged material is deleted.
    (g) The following records and documents and parts of records and 
documents are not confidential even if they meet the criteria in 
paragraphs (a) through (c) of this section:
    (1) Statistical information regarding VA healthcare programs or 
activities that does not implicitly or explicitly identify individual VA 
patients or VA employees or individuals involved in the quality 
assurance process;
    (2) Summary documents or records which only identify study topics, 
the period of time covered by the study, criteria, norms, and/or major 
overall

[[Page 713]]

findings, but which do not identify individual healthcare practitioners, 
even by implication;
    (3) The contents of Credentialing and Privileging folders as 
described in VACO policy documents (38 U.S.C. 5705-protected records 
shall not be filed in Credentialing and Privileging folders);
    (4) Records and documents developed during or as a result of Boards 
of Investigations;
    (5) Completed patient satisfaction survey questionnaires and 
findings from patient satisfaction surveys;
    (6) Records and documents which only indicate the number of patients 
treated by a practitioner, either by diagnosis or in aggregate, or 
number of procedures performed by a practitioner, either by procedure or 
in aggregate;
    (7) Records and documents developed during or as a result of reviews 
performed to satisfy the requirements of a governmental body or a 
professional healthcare organization which is licensing practitioners or 
monitoring their professional performance, e.g., National Practitioner 
Data Bank, Federation of State Medical Boards, and National Council of 
State Boards of Nursing;
    (8) Documents and reports developed during or as a result of site 
visits by the Office of the Medical Inspector except to the extent that 
the documents and reports contain information that meets the criteria 
described in this section and are produced by or for VA by other than 
the Office of Medical Inspector;
    (9) External reviews conducted by VA Central Office or a Region 
other than those designated by the reviewing office under paragraph 
(a)(2) or (a)(3) of this section as protected by 38 U.S.C. 5705 and the 
regulations in Sec. Sec. 17.500 through 17.511;
    (10) Documents and reports of Professional Standards Boards, 
Credentialing Committees, Executive Committees of Medical Staff, and 
similar bodies, insofar as the documents relate to the credentialing and 
privileging of practitioners;
    (11) Documents and reports developed during or as a result of data 
validation activities;
    (12) Documents and reports developed during or as a result of 
occupational health monitoring;
    (13) Documents and reports developed during or as a result of safety 
monitoring not directly related to the care of specified individual 
patients;
    (14) Documents and reports developed during or as a result of 
resource management activities not directly related to the care of 
specified individual patients; and
    (15) Information and records derived from patient medical records or 
facility administrative records, which are not protected by 38 U.S.C. 
5705 and the regulations in Sec. Sec. 17.500 through 17.511, may be 
sent or communicated to a third party payor who has asked for this 
information in response to a VA request for reimbursement based on 
Public Law 99-272 and Public Law 101-508. Reviews conducted at the 
request of the third party payor do not generate records protected by 38 
U.S.C. 5705 and the regulations in Sec. Sec. 17.500 through 17.511 
since the reviews are not undertaken as part of the VA's quality 
assurance program.

(Authority: 38 U.S.C. 5705)



Sec. 17.502  Applicability of other statutes.

    (a) Disclosure of quality assurance records and documents which are 
not confidential and privileged under 38 U.S.C. 5705 and the 
confidentiality regulations in Sec. Sec. 17.500 through 17.511 will be 
governed by the provisions of the Freedom of Information Act, and, if 
applicable, the Privacy Act and any other VA or federal confidentiality 
statutes.
    (b) When included in a quality assurance review, confidential 
records protected by other confidentiality statutes such as 5 U.S.C. 
552a (the Privacy Act), 38 U.S.C. 7332 (drug and alcohol abuse, sickle 
cell anemia, HIV infection), and 38 U.S.C. 5701 (veterans' names and 
addresses) retain whatever confidentiality protection they have under 
these laws and applicable regulations and will be handled accordingly. 
To the extent that information protected by 38 U.S.C. 5701 or 7332 or 
the Privacy Act is incorporated into quality assurance records, the 
information

[[Page 714]]

in the quality assurance records is still protected by these statutes.

(Authority: 38 U.S.C. 5705)



Sec. 17.503  Improper disclosure.

    (a) Improper disclosure is the disclosure of confidential and 
privileged healthcare quality assurance review records or documents (or 
information contained therein), as defined in Sec. 17.501, to any 
person who is not authorized access to the records or documents under 
the statute and the regulations in Sec. Sec. 17.500 through 17.511.
    (b) ``Disclosure'' means the communication, transmission, or 
conveyance in any way of any confidential and privileged quality 
assurance records or documents or information contained in them to any 
individual or organization in any form by any means.

(Authority: 38 U.S.C. 5705)



Sec. 17.504  Disclosure methods.

    (a) Disclosure of confidential and privileged quality assurance 
records and documents or the information contained therein outside VA, 
where permitted by the statute and the regulations in Sec. Sec. 17.500 
through 17.511, will always be by copies, abstracts, summaries, or 
similar records or documents prepared by the Department of Veterans 
Affairs and released to the requestor. The original confidential and 
privileged quality assurance records and documents will not be removed 
from the VA facility by any person, VA employee or otherwise, except in 
accordance with Sec. 17.508(c) or where otherwise legally required.
    (b) Disclosure of confidential and privileged quality assurance 
records and documents to authorized individuals under either Sec. 
17.508 or Sec. 17.509 shall bear the following statement: ``These 
documents or records (or information contained herein) are confidential 
and privileged under the provisions of 38 U.S.C. 5705, which provide for 
fines up to $20,000 for unauthorized disclosures thereof, and the 
implementing regulations. This material shall not be disclosed to anyone 
without authorization as provided for by that law or the regulations in 
Sec. Sec. 17.500 through 17.511.''

(Authority: 38 U.S.C. 5705)



Sec. 17.505  Disclosure authorities.

    The VA medical facility Director, Regional Director, Under Secretary 
for Health, or their designees are authorized to disclose any 
confidential and privileged quality assurance records or documents under 
their control to other agencies, organizations, or individuals where 38 
U.S.C. 5705 or the regulations in Sec. Sec. 17.500 through 17.511 
expressly provide for disclosure.

(Authority: 38 U.S.C. 5705)



Sec. 17.506  Appeal of decision by Veterans Health Administration to 
deny disclosure.

    When a request for records or documents subject to the regulations 
in Sec. Sec. 17.500 through 17.511 is denied in whole or in part by the 
VA medical facility Director, Regional Director or Under Secretary for 
Health, the VA official denying the request in whole or in part will 
notify the requestor in writing of the right to appeal this decision to 
the General Counsel of the Department of Veterans Affairs within 60 days 
of the date of the denial letter. The final Department decision will be 
made by the General Counsel or the Deputy General Counsel.

(Authority: 38 U.S.C. 5705)



Sec. 17.507  Employee responsibilities.

    (a) All VA employees and other individuals who have access to 
records designated as confidential and privileged under 38 U.S.C. 5705 
and the regulations in Sec. Sec. 17.500 through 17.511 will treat the 
findings, views, and actions relating to quality assurance in a 
confidential manner.
    (b) All individuals who have had access to records designated as 
confidential and privileged under 38 U.S.C. 5705 and the regulations in 
Sec. Sec. 17.500 through 17.511 will not disclose such records or 
information therein to any person or organization after voluntary or 
involuntary termination of their relationship to the VA.

(Authority: 38 U.S.C. 5705)



Sec. 17.508  Access to quality assurance records and documents within 
the agency.

    (a) Access to confidential and privileged quality assurance records 
and

[[Page 715]]

documents within the Department pursuant to this section is restricted 
to VA employees (including consultants and contractors of VA) who have a 
need for such information to perform their government duties or 
contractual responsibilities and who are authorized access by the VA 
medical facility Director, Regional Director, the Under Secretary for 
Health, or their designees or by the regulations in Sec. Sec. 17.500 
through 17.511.
    (b) To foster continuous quality improvement, practitioners on VA 
rolls, whether paid or not, will have access to confidential and 
privileged quality assurance records and documents relating to 
evaluation of the care they provided.
    (c) Any quality assurance record or document, whether confidential 
and privileged or not, may be provided to the General Counsel or any 
attorney within the Office of General Counsel, wherever located. These 
documents may also be provided to a Department of Justice (DOJ) attorney 
who is investigating a claim or potential claim against the VA or who is 
preparing for litigation involving the VA. If necessary, such a record 
or document may be removed from the VA medical facility to the site 
where the General Counsel or any attorney within the Office of General 
Counsel or the DOJ attorney is conducting an investigation or preparing 
for litigation.
    (d) Any quality assurance record or document or the information 
contained therein, whether confidential and privileged or not, will be 
provided to the Department of Veterans Affairs Office of Inspector 
General upon request. A written request is not required.
    (e) To the extent practicable, documents accessed under paragraph 
(b) of this section will not include the identity of peer reviewers. 
Reasonable efforts will be made to edit documents so as to protect the 
identities of reviewers, but the inability to completely do so will not 
bar access under paragraph (b).
    (f) No individual shall be permitted access to confidential and 
privileged quality assurance records and documents identified in Sec. 
17.501 unless such individual has been informed of the penalties for 
unauthorized disclosure. Any misuse of confidential and privileged 
quality assurance records or documents shall be reported to the 
appropriate VHA official, e.g., Service Chief, Medical Center Director.
    (g) In general, confidential and privileged quality assurance 
records and documents will be maintained for a minimum of 3 years and 
may be held longer if needed for research studies or quality assurance 
or legal purposes.

(Authority: 38 U.S.C. 5705)



Sec. 17.509  Authorized disclosure: Non-Department of Veterans Affairs 
requests.

    (a) Requests for confidential and privileged quality assurance 
records and documents from organizations or individuals outside VA must 
be made to the Department and must specify the nature and content of the 
information requested, to whom the information should be transmitted or 
disclosed, and the purpose listed in paragraphs (b) through (j) of this 
section for which the information requested will be used. In addition, 
the requestor will specify to the extent possible the beginning and 
final dates of the period for which disclosure or access is requested. 
The request must be in writing and signed by the requestor. Except as 
specified in paragraphs (b) and (c) of this section, these requests 
should be forwarded to the Director of the facility in possession of the 
records or documents for response. The procedures outlined in 38 CFR 
1.500 through 1.584 will be followed where applicable.
    (b) Disclosure shall be made to Federal agencies upon their written 
request to permit VA's participation in healthcare programs including 
healthcare delivery, research, planning, and related activities with the 
requesting agencies. Any Federal agency may apply to the Under Secretary 
for Health for approval. If the VA decides to participate in the 
healthcare program with the requestor, the requesting agency will enter 
into an agreement with VA to ensure that the agency and its staff will 
ensure the confidentiality of any quality assurance records or documents 
shared with the agency.
    (c) Qualified persons or organizations, including academic 
institutions,

[[Page 716]]

engaged in healthcare program activities shall, upon request to and 
approval by the Under Secretary for Health, Regional Director, medical 
facility Director, or their designees, have access to confidential and 
privileged medical quality assurance records and documents to permit VA 
participation in a healthcare activity with the requestor, provided that 
no records or documents are removed from the VA facility in possession 
of the records.
    (d) When a request under paragraphs (b) or (c) of this section 
concerns access for research purposes, the request, together with the 
research plan or protocol, shall first be submitted to and approved by 
an appropriate VA medical facility Research and Development Committee 
and then approved by the Director of the VA medical facility. The VA 
medical facility staff together with the qualified person(s) conducting 
the research shall be responsible for the preservation of the anonymity 
of the patients, clients, and providers and shall not disseminate any 
records or documents which identify such individuals directly or 
indirectly without the individual's consent. This applies to the 
handling of data or information as well as reporting or publication of 
findings. These requirements are in addition to other applicable 
protections for the research.
    (e) Individually identified patient medical record information which 
is protected by another statute as provided in Sec. 17.502 may not be 
disclosed to a non-VA person or organization, including disclosures for 
research purposes under paragraph (d), except as provided in that 
statute.
    (f) Under paragraph (b), the Under Secretary for Health or designee 
or under paragraph (c), the Under Secretary for Health, Regional 
Director, medical facility Director, or their designees may approve a 
written request if it meets the following criteria:
    (1) Participation by VA will benefit VA patient care; or
    (2) Participation by VA will enhance VA medical research; or
    (3) Participation by VA will enhance VA health services research; or
    (4) Participation by VA will enhance VA healthcare planning or 
program development activities; or
    (5) Participation by VA will enhance related VA healthcare program 
activities; and
    (6) Access to the record by the requester is required for VA to 
participate in a healthcare program with the requester.
    (g) Protected quality assurance records or documents, including 
records pertaining to a specific individual, will for purposes 
authorized under law be disclosed to a civil or criminal law enforcement 
governmental agency or instrumentality charged under applicable law with 
the protection of public health or safety, including state licensing and 
disciplinary agencies, if a written request for such records or 
documents is received from an official of such an organization. The 
request must state the purpose authorized by law for which the records 
will be used. The Under Secretary for Health, Regional Director, medical 
facility Director, or their designees will determine the extent to which 
the information is disclosable.
    (h) Federal agencies charged with protecting the public health and 
welfare, federal and private agencies which engage in various monitoring 
and quality control activities, agencies responsible for licensure of 
individual health care facilities or programs, and similar organizations 
will be provided confidential and privileged quality assurance records 
and documents if a written request for such records or documents is 
received from an official of such an organization. The request must 
state the purpose for which the records will be used. The Under 
Secretary for Health, Regional Director, medical facility Director, or 
their designees will determine the extent to which the information is 
disclosable.
    (i) JCAHO (Joint Commission on Accreditation of Healthcare 
Organizations) survey teams and similar national accreditation agencies 
or boards and other organizations requested by VA to assess the 
effectiveness of quality assurance program activities or to consult 
regarding these programs are entitled to disclosure of confidential and 
privileged quality assurance documents with the following 
qualifications:

[[Page 717]]

    (1) Accreditation agencies which are charged with assessing all 
aspects of medical facility patient care, e.g., JCAHO, may have access 
to all confidential and privileged quality assurance records and 
documents.
    (2) Accreditation agencies charged with more narrowly focused review 
(e.g., College of American Pathologists, American Association of Blood 
Banks, Nuclear Regulatory Commission, etc.) may have access only to such 
confidential and privileged records and documents as are relevant to 
their respective focus.
    (j) Confidential and privileged quality assurance records and 
documents shall be released to the General Accounting Office if such 
records or documents pertain to any matter within its jurisdiction.
    (k) Confidential and privileged quality assurance records and 
documents shall be released to both VA and non-VA healthcare personnel 
upon request to the extent necessary to meet a medical emergency 
affecting the health or safety of any individual.
    (l) For any disclosure made under paragraphs (a) through (i) of this 
section, the name of and other identifying information regarding any 
individual VA patient, employee, or other individual associated with VA 
shall be deleted from any confidential and privileged quality assurance 
record or document before any disclosure under these quality assurance 
regulations in Sec. Sec. 17.500 through 17.511 is made, if disclosure 
of such name and identifying information would constitute a clearly 
unwarranted invasion of personal privacy.
    (m) Disclosure of the confidential and privileged quality assurance 
records and documents identified in Sec. 17.501 will not be made to any 
individual or agency until that individual or agency has been informed 
of the penalties for unauthorized disclosure or redisclosure.

(Authority: 38 U.S.C. 5705)



Sec. 17.510  Redisclosure.

    No person or entity to whom a quality assurance record or document 
has been disclosed under Sec. 17.508 or Sec. 17.509 shall make further 
disclosure of such record or document except as provided for in 38 
U.S.C. 5705 and the regulations in Sec. Sec. 17.500 through 17.511.

(Authority: 38 U.S.C. 5705)



Sec. 17.511  Penalties for violations.

    Any person who knows that a document or record is a confidential and 
privileged quality assurance document or record described in Sec. Sec. 
17.500 through 17.511 and willfully discloses such confidential and 
privileged quality assurance record or document or information contained 
therein, except as authorized by 38 U.S.C. 5705 or the regulations in 
Sec. Sec. 17.500 through 17.511, shall be fined not more than $5,000 in 
the case of a first offense and not more than $20,000 in the case of 
each subsequent offense.

(Authority: 38 U.S.C. 5705)

               VA Health Professional Scholarship Program

    Authority: 38 U.S.C. 7601-7655.



Sec. 17.600  Purpose.

    The purpose of Sec. Sec. 17.600 through 17.612 is to set forth the 
requirements for the award of scholarships under the Department of 
Veterans Affairs Health Professional Scholarship Program to students 
receiving education or training in a direct or indirect health-care 
services discipline to assist in providing an adequate supply of such 
personnel for VA and for the Nation. Disciplines include nursing, 
physical therapy, occupational therapy, and other specified direct or 
indirect health-care disciplines if needed by VA.

[55 FR 40170, Oct. 2, 1990]



Sec. 17.601  Definitions.

    For the purpose of these regulations:
    (a) Acceptable level of academic standing means the level at which a 
student retains eligibility to continue in attendance in school under 
the school's standards and practices in the course of study for which 
the scholarship was awarded.
    (b) Act means the Department of Veterans Affairs Health-Care 
Amendments of 1980, Pub. L. 96-330, (38 U.S.C. 7601-7655), as amended by 
Pub. L. 97-251, the Department of Veterans Affairs Health-Care Programs 
Improvement

[[Page 718]]

and Extension Act of 1982, Pub. L. 99-576, Veterans Benefits Improvement 
and Health Care Authorization Act of 1986, and Pub. L. 100-322, the 
Veterans' Benefits and Services Act of 1988.


(Authority: Pub. L. 96-330; 38 U.S.C. 7601-7655, as amended by Pub. L. 
97-251; Pub. L. 99-576 and Pub. L. 100-322)

    (c) Affiliation agreement means a Memorandum of Affiliation between 
a Department of Veterans Affairs health care facility and a school of 
medicine or osteopathy.
    (d) Advanced clinical training means those programs of graduate 
training in medicine including osteopathy which (1) lead to eligibility 
for board certification or which provide other evidence of completion, 
and (2) have been approved by the appropriate body as determined by the 
Administrator.
    (e) Secretary means the Secretary of Veterans Affairs or designee.
    (f) Under Secretary for Health means the Under Secretary for Health 
for Veterans Health Administration or designee.
    (g) Citizen of the United States means any person born, or lawfully 
naturalized in the United States, subject to its jurisdiction and 
protection, and owing allegiance thereto.
    (h) Degree means a course of study leading to a doctor of medicine, 
doctor of osteopathy, doctor of dentistry, doctor of optometry, doctor 
of podiatry, or an associate degree, baccalaureate degree, or master's 
degree in a nursing specialty needed by VA; or a baccalaureate or 
master's degree in another direct or indirect health-care service 
discipline needed by VA.
    (i) Full-time student means an individual pursuing a course of study 
leading to a degree who is enrolled for a sufficient number of credit 
hours in any academic term to complete the course of study within not 
more than the number of academic terms normally required by the school, 
college or university. If an individual is enrolled in a school and is 
pursuing a course of study which is designed to be completed in more 
than 4 years, the individual will be considered a full-time student for 
only the last 4 years of the course study.
    (j) Other educational expenses means a reasonable amount of funds 
determined by the Secretary to cover expenses such as books, and 
laboratory equipment.
    (k) Required educational equipment means educational equipment which 
must be rented or purchased by all students pursuing a similar 
curriculum in the same school.
    (l) Required fees means those fees which are charged by the school 
to all students pursuing a similar curriculum in the same school.
    (m) Scholarship Program or Scholarship means the Department of 
Veterans Affairs Health Professional Scholarship Program authorized by 
section 216 of the Act.
    (n) Participant or Scholarship Program Participant means an 
individual whose application to the Scholarship Program has been 
approved and whose contract has been accepted by the Secretary and who 
has yet to complete the period of obligated service or otherwise satisfy 
the obligation or financial liabilities of the Scholarship Contract.
    (o) School means an academic institution which (1) provides training 
leading to a degree in a direct or indirect health-care service 
discipline needed by the Department of Veterans Affairs, and (2) which 
is accredited by a body or bodies recognized for accreditation by the 
Secretary.


(Authority: 38 U.S.C. 7602(a))

    (p) School year means, for purposes of the stipend payment, all or 
part of the 12-month period from September 1 through August 31 during 
which a participant is enrolled in the school as a full-time student.
    (q) State means one of the several States, Territories and 
possessions of the United States, the District of Columbia and the 
Commonwealth of Puerto Rico.
    (r) Part-time student means an individual who is a Department of 
Veterans Affairs employee permanently assigned to a Department of 
Veterans Affairs health care facility who has been accepted for 
enrollment or enrolled for study leading to a degree on a less than 
full-time but not less than half-time basis.

[[Page 719]]

    (s) Department of Veterans Affairs employee means an individual 
employed and permanently assigned to a VA health care facility.
    (t) Degree completion date means the date on which a participant 
completes all requirements of the degree program.


(Authority: 38 U.S.C. 7452)

    (u) VA health care facility means Department of Veterans Affairs 
medical centers, medical and regional office centers, domiciliaries, 
independent outpatient clinics, and outpatient clinics in regional 
offices.

(Authority: 38 U.S.C. 7633)

(Approved by the Office of Management and Budget under control number 
2900-0352)

[47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37399, Aug. 18, 1983; 
54 FR 28674, July 7, 1989; 55 FR 40170, Oct. 2, 1990; 61 FR 21969, May 
13, 1996]



Sec. 17.602  Eligibility.

    (a) To be eligible for a scholarship under this program an applicant 
must--
    (1) Be accepted for enrollment or be enrolled as a full-time student 
in an accredited school located in a State;
    (2) Be pursuing a degree annually designated by the Secretary for 
participation in the Scholarship Program;


(Authority: 38 U.S.C. 7602(a)(1), 7612(b)(1))

    (3) Be in a discipline or program annually designated by the 
Secretary for participation in the Scholarship Program;
    (4) Be a citizen of the United States; and
    (5) Submit an application to participate in the Scholarship Program 
together with a signed contract.


(Authority: 38 U.S.C. 7602(a))

    (b) To be eligible for a scholarship as a part-time student under 
this program, an applicant must satisfy requirements of paragraph (a) of 
this section and in addition must--
    (1) Be a full-time VA employee permanently assigned to a VA health 
care facility at the time of application and on the date when the 
scholarship is awarded;
    (2) Remain a VA employee for the duration of the scholarship award.


(Authority: 38 U.S.C. 7612(c)(3)(B))

    (c) Any applicant who, at the time of application, owes a service 
obligation to any other entity to perform service after completion of 
the course of study is ineligible to receive a scholarship under the 
Department of Veterans Affairs Scholarship Program.

(Authority: 38 U.S.C. 7602(b))

(Approved by the Office of Management and Budget under control number 
2900-0352)

[47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37399, Aug. 18, 1983; 
54 FR 28674, July 7, 1989]



Sec. 17.603  Availability of scholarships.

    Scholarships will be awarded only when necessary to assist the 
Department of Veterans Affairs in alleviating shortages or anticipated 
shortages of personnel in particular health professions. The existence 
of a shortage of personnel will be determined in accordance with 
specific criteria for each health profession, promulgated by the Under 
Secretary for Health. The Secretary has the authority to determine the 
number of scholarships to be awarded in a fiscal year, and the number 
that will be awarded to full-time and part-time students.

(Authority: 38 U.S.C. 7612(b)(4) and 7603(b)(1))

[54 FR 28674, July 7, 1989, as amended at 61 FR 21969, May 13, 1996]



Sec. 17.604  Application for the scholarship program.

    Each individual desiring a scholarship under this program must 
submit an accurate and complete application in the form and at the time 
prescribed by the Secretary. Included with the application will be a 
signed written contract to accept payment of a scholarship and to serve 
a period of obligated service (as defined in Sec. 17.607) if the 
application is approved and if the contract is accepted by the 
Secretary.

(Authority: 38 U.S.C. 7612(c)(1)(B))

[47 FR 10810, Mar. 12, 1982]

[[Page 720]]



Sec. 17.605  Selection of participants.

    (a) General. In deciding which Scholarship Program applications will 
be approved by the Secretary, priority will be given to applicants 
entering their final year of education or training and priority will be 
given to applicants who previously received scholarship awards and who 
meet the conditions of paragraph (d) of this section. Except for 
continuation awards (see paragraph (d) of this section), applicants will 
be evaluated under the criteria specified in paragraph (b) of this 
section. A situation may occur in which there are a larger number of 
equally qualified applicants than there are awards to be made. In such 
cases, a random method may be used as the basis for selection. In 
selecting participants to receive awards as part-time students, the 
Secretary may, at the Secretary's discretion--


(Authority: 38 U.S.C. 7612(b)(5))

    (1) Award scholarships geographically to part-time students so that 
available scholarships may be distributed on a relatively equal basis to 
students working throughout the VA health care system, and/or
    (2) Award scholarships on the basis of retention needs within the VA 
health care system.


(Authority: 38 U.S.C. 7603(d))

    (b) Selection. In evaluating and selecting participants, the 
Secretary will take into consideration those factors determined 
necessary to assure effective participation in the Scholarship Program. 
The factors may include, but not be limited to--
    (1) Work/volunteer experience, including prior health care 
employment and Department of Veterans Affairs employment;
    (2) Faculty and employer recommendations;
    (3) Academic performance; and
    (4) Career goals.


(Authority: 38 U.S.C. 7633)

    (c) Selection of part-time students. Factors in addition to those 
specified in paragraph (b) of this section, which may be considered in 
awarding scholarships to part-time students may include, but are not 
limited to:
    (1) Length of service of a VA employee in a health care facility;
    (2) Honors and awards received from VA, and other sources;
    (3) VA work performance evaluation;
    (4) A recommendation for selection for a part-time scholarship from 
a VA Medical District.


(Authority: 38 U.S.C. 7452(d)(1))

    (d) Duration of scholarship award. Subject to the availability of 
funds for the Scholarship Program, the Secretary will award a 
participant a full-time scholarship under these regulations for a period 
of from 1 to 4 school years and a participant of a part-time scholarship 
for a period of 1 to 6 school years.


(Authority: 38 U.S.C. 7612(c)(1)(A) and 7614(3))

    (e) Continuation awards. Subject to the availability of funds for 
the Scholarship Program and selection, the Secretary will award a 
continuation scholarship for completion of the degree for which the 
scholarship was awarded if--
    (1) The award will not extend the total period of Scholarship 
Program support beyond 4 years for a full-time scholarship, and beyond 6 
years for a part-time scholarship; and
    (2) The participant remains eligible for continued participation in 
the Scholarship Program.

(Authority: 38 U.S.C. 7603(d))

(Approved by the Office of Management and Budget under control number 
2900-0352)

[48 FR 37399, Aug. 18, 1983, as amended at 54 FR 28674, July 7, 1989]



Sec. 17.606  Award procedures.

    (a) Amount of scholarship. (1) A scholarship award will consist of 
(i) tuition and required fees, (ii) other educational expenses, 
including books and laboratory equipment, and (iii) except as provided 
in paragraph (a)(2) of this section, a monthly stipend, for the duration 
of the scholarship award. All such payments to scholarship participants 
are exempt from Federal taxation.


(Authority: 38 U.S.C. 7636)


[[Page 721]]


    (2) No stipend may be paid to a participant who is a full-time VA 
employee.
    (3) The Secretary may determine the amount of the stipend paid to 
participants, whether part-time students or full-time students, but that 
amount may not exceed the maximum amount provided for in 38 U.S.C. 
7613(b).
    (4) In the case of a part-time student who is a part-time employee, 
the maximum stipend, if more than a nominal stipend is paid, will be 
reduced in accordance with the proportion that the number of credit 
hours carried by such participant bears to the number of credit hours 
required to be carried by a full-time student in the course of training 
being pursued by the participant.
    (5) A full stipend may be paid only for the months the part-time 
student is attending classes.


(Authority: 38 U.S.C. 7614(2))

    (6) The Secretary may make arrangements with the school in which the 
participant is enrolled for the direct payment of the amount of tuition 
and/or reasonable educational expenses on the participant's behalf.


(Authority: 38 U.S.C. 7613(c))

    (7) A participant's eligibility for a stipend ends at the close of 
the month in which degree requirements are met.
    (b) Leave-of-absence, repeated course work. The Secretary may 
suspend scholarship payments to or on behalf of a participant if the 
school (1) approves a leave-of-absence for the participant for health, 
personal, or other reasons, or (2) requires the participant to repeat 
course work for which the Secretary previously has made payments under 
the Scholarship Program. Additional costs relating to the repeated 
course work will not be paid under this program. Any scholarship 
payments suspended under this section will be resumed by the Secretary 
upon notification by the school that the participant has returned from 
the leave-of-absense or has satisfactorily completed the repeated course 
work and is proceeding as a full-time student in the course of study for 
which the scholarship was awarded.

(Authority: 38 U.S.C. 7633)

[48 FR 37400, Aug. 18, 1983, as amended at 55 FR 40170, Oct. 2, 1990]



Sec. 17.607  Obligated service.

    (a) General. Except as provided in paragraph (d) of this section, 
each participant is obligated to provide service as a Department of 
Veterans Affairs employee in full-time clinical practice in the 
participant's discipline in an assignment or location determined by the 
Secretary.


(Authority: 38 U.S.C. 7616(a))

    (b) Beginning of service. (1) Except as provided in paragraph (b)(2) 
of this section, a participant's obligated service shall begin on the 
date the Secretary appoints the participant as a full-time VA employee 
in the Department of Veterans Affairs Veterans Health Administration in 
a position for which the degree program prepared the participant. The 
Secretary shall appoint the participant to such position within 60 days 
after the participant's degree completion date, or the date the 
participant becomes licensed in a State to practice in the discipline 
for which the degree program prepared the participant, whichever is 
later. At least 60 days prior to the appointment date, the Secretary 
shall notify the participant of the work assignment, its location, and 
the date work must begin.
    (2) Obligated service shall begin on the degree completion date for 
a participant who, on that date, is a full-time VA employee working in a 
capacity for which the degree program prepared the participant.


(Authority: 38 U.S.C. 7616 (b) and (c))

    (c) Duration of service. The period of obligated service for a 
participant who attended school as a full-time student shall be 1 year 
for each school year or part thereof for which the participant received 
a scholarship award under these regulations. The period of obligated 
service for a participant who attended school as a part-time student 
shall be reduced from that which a full-time student must serve in 
accordance with the proportion that the number of

[[Page 722]]

credit hours carried by the part-time student in any school year bears 
to the number of credit hours required to be carried by a full-time 
student, whichever is the greater, but shall be a minimum of 1 year of 
full-time employment.


(Authority: 38 U.S.C. 7612(c)(1)(B) and (3)(A))

    (d) Location for service. The Secretary reserves the right to make 
final decisions on location for service obligation. A participant who 
received a scholarship as a full-time student must be willing to move to 
another geographic location for service obligation. A participant who 
received a scholarship as a part-time student may be allowed to serve 
the period of obligated service at the health care facility where the 
individual was assigned when the scholarship was authorized.


(Authority: 38 U.S.C. 7616(a))

    (e) Creditability of advanced clinical training. No period of 
advanced clinical training will be credited toward satisfying the period 
of obligated service incurred under the Scholarship Program.

(Authority: 38 U.S.C. 7616(b)(3)(A)(ii)

[47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37400, Aug. 18, 1983; 
54 FR 28675, July 7, 1989]



Sec. 17.608  Deferment of obligated service.

    (a) Request for deferment. A participant receiving a degree from a 
school of medicine, osteopathy, dentistry, optometry, or podiatry, may 
request deferment of obligated service to complete an approved program 
of advanced clinical training. The Secretary may defer the beginning 
date of the obligated service to allow the participant to complete the 
advanced clinical training program. The period of this deferment will be 
the time designated for the specialty training.


(Authority: 38 U.S.C. 7616(a)(A)(i))

    (b) Deferment requirements. Any participant whose period of 
obligated service is deferred shall be required to take all or part of 
the advanced clinical training in an accredited program in an 
educational institution having an Affiliation Agreement with a 
Department of Veterans Affairs health care facility, and such training 
will be undertaken in a Department of Veterans Affairs health-care 
facility.


(Authority: 38 U.S.C. 7616(b)(4))

    (c) Additional service obligation. A participant who has requested 
and received deferment for approved advanced clinical training may, at 
the time of approval of such deferment and at the discretion of the 
Secretary and upon the recommendation of the Under Secretary for Health, 
incur an additional period of obligated service--
    (1) At the rate of one-half of a calendar year for each year of 
approved clinical training (or a proportionate ratio thereof) if the 
training is in a specialty determined to be necessary to meet health 
care requirements of the Veterans Health Administration; Department of 
Veterans Affairs; or
    (2) At the rate of three-quarters of a calendar year for each year 
of approved graduate training (or a proportionate ratio thereof) if the 
training is in a medical specialty determined not to be necessary to 
meet the health care requirements of the Veterans Health Administration. 
Specialties necessary to meet the health care requirements of the 
Veterans Health Administration will be prescribed periodically by the 
Secretary when, and if, this provision for an additional period of 
obligated service is to be used.


(Authority: 38 U.S.C. 7616(b)(4)(B))

    (d) Altering deferment. Before altering the length or type of 
approved advanced clinical training for which the period of obligated 
service was deferred under paragraphs (a) or (b) of this section, the 
participant must request and obtain the Secretary's written approval of 
the alteration.


(Authority: 38 U.S.C. 7633)

    (e) Beginning of service after deferment. Any participant whose 
period of obligated service has been deferred under paragraph (a) or (b) 
of this section must begin the obligated service effective on the date 
of appointment under title 38 in full-time clinical practice in an 
assignment or location in a Department of Veterans Affairs health care

[[Page 723]]

facility as determined by the Secretary. The assignment will be made by 
the Secretary within 120 days prior to or no later than 30 days 
following the completion of the requested graduate training for which 
the deferment was granted. Travel and relocation regulations will apply.

(Authority: 38 U.S.C. 7616(b)(2))

[47 FR 10810, Mar. 12, 1982; 47 FR 13523, Mar. 31, 1982, as amended at 
54 FR 28675, July 7, 1989; 61 FR 21969, May 13, 1996]



Sec. 17.609  Pay during period of obligated service.

    The initial appointment of physicians for obligated service will be 
made in a grade commensurate with qualifications as determined in 
section 7404(b)(1) of title 38 U.S.C. A physician serving a period of 
obligated service is not eligible for incentive special pay during the 
first three years of such obligated service. A physician may be paid 
primary special pay at the discretion of the Secretary upon the 
recommendation of the Under Secretary for Health.

(Authority: Pub. L. 96-330, Sec. 202; 38 U.S.C. 7431-7440)

[47 FR 10810, Mar. 12, 1982, as amended at 54 FR 28676, July 7, 1989; 61 
FR 21969, May 13, 1996]



Sec. 17.610  Failure to comply with terms and conditions of participation.

    (a) If a participant, other than one described in paragraph (b) of 
this section fails to accept payment or instructs the school not to 
accept payment of the scholarship provided by the Secretary, the 
participant must, in addition to any service or other obligation 
incurred under the contract, pay to the United States the amount of 
$1,500 liquidated damages. Payment of this amount must be made within 90 
days of the date on which the participant fails to accept payment of the 
scholarship award or instructs the school not to accept payment.


(Authority: 38 U.S.C. 7617(a))

    (b) If a participant:
    (1) Fails to maintain an acceptable level of academic standing;
    (2) Is dismissed from the school for disciplinary reasons;
    (3) Voluntarily terminates the course of study or program for which 
the scholarship was awarded including in the case of a full-time 
student, a reduction of course load from full-time to part-time before 
completing the course of study or program;
    (4) Fails to become licensed to practice in the discipline for which 
the degree program prepared the participant, if applicable, in a State 
within 1 year from the date such person becomes eligible to apply for 
State licensure; or


(Authority: 38 U.S.C. 7617(b)(4))

    (5) Is a part-time student and fails to maintain employment in a 
permanent assignment in a VA health care facility while enrolled in the 
course of training being pursued; the participant must instead of 
performing any service obligation, pay to the United States an amount 
equal to all scholarship funds awarded under the written contract 
executed in accordance with Sec. 17.602. Payment of this amount must be 
made within 1 year from the date academic training terminates unless a 
longer period is necessary to avoid hardship. No interest will be 
charged on any part of this indebtedness.


(Authority: 38 U.S.C. 7617(b))

    (c) Participants who breach their contracts by failing to begin or 
complete their service obligation (for any reason) other than as 
provided for under paragraph (b) of this section are liable to repay the 
amount of all scholarship funds paid to them and to the school on their 
behalf, plus interest, multiplied by three, minus months of service 
obligation satisfied, as determined by the following formula:

 
                                             t-s
      A=3[Phi]            [lpar3]      ---------------      [rpar3]
                                              t
------------------------------------------------------------------------
 

    in which:

`A' is the amount the United States is entitled to recover;
`[phis]' is the sum of the amounts paid to or on behalf of the applicant 
and the interest on such amounts which would be payable if, at the time 
the amounts were paid, they were loans bearing interest at the maximum 
legal prevailing rate, as determined by the Treasurer of the United 
States;

[[Page 724]]

`t' is the total number of months in the applicant's period of obligated 
service; and
`s' is the number of months of the period of obligated service served by 
the participant.


The amount which the United States is entitled to recover shall be paid 
within 1 year of the date on which the applicant failed to begin or 
complete the period of obligated service, as determined by the 
Secretary.

(Authority: 38 U.S.C. 7617(c)(1)(2))

(Approved by the Office of Management and Budget under control number 
2900-0352)

[47 FR 10810, Mar. 12, 1982; 47 FR 13523, Mar. 31, 1982, as amended at 
48 FR 37400, Aug. 18, 1983; 54 FR 28676, July 7, 1989; 54 FR 46611, Nov. 
6, 1989; 61 FR 24237, May 14, 1996]



Sec. 17.611  Bankruptcy.

    Any payment obligation incurred may not be discharged in bankruptcy 
under title 11 U.S.C. until 5 years after the date on which the payment 
obligation is due.

(Authority: 38 U.S.C. 7634(c))

[47 FR 10810, Mar. 12, 1982]



Sec. 17.612  Cancellation, waiver, or suspension of obligation.

    (a) Any obligation of a participant for service or payment will be 
canceled upon the death of the participant.


(Authority: 38 U.S.C. 7634(a))

    (b)(1) A participant may seek a waiver or suspension of the service 
or payment obligation incurred under this program by written request to 
the Secretary setting forth the basis, circumstances, and causes which 
support the requested action. The Secretary may approve an initial 
request for a suspension for a period of up to 1 year. A renewal of this 
suspension may also be granted.
    (2) The Secretary may waive or suspend any service or payment 
obligation incurred by a participant whenever compliance by the 
participant (i) is impossible, due to circumstances beyond the control 
of the participant or (ii) whenever the Secretary concludes that a 
waiver or suspension of compliance would be in the best interest of the 
Department of Veterans Affairs.


(Authority: 38 U.S.C. 7634(b))

    (c) Compliance by a participant with a service or payment obligation 
will be considered impossible due to circumstances beyond the control of 
the participant if the Secretary determines, on the basis of such 
information and documentation as may be required, that the participant 
suffers from a physical or mental disability resulting in permanent 
inability to perform the service or other activities which would be 
necessary to comply with the obligation.


(Authority: 38 U.S.C. 7634(b))

    (d) Waivers or suspensions of service or payment obligations, when 
not related to paragraph (c) of this section, and when considered in the 
best interest of the Department of Veterans Affairs, will be determined 
by the Secretary on an individual basis.

(Authority: 38 U.S.C. 7634(b))

[47 FR 10810, Mar. 12, 1982]

                    Transitional Housing Loan Program

    Source: 59 FR 49579, Sept. 29, 1994, unless otherwise noted.



Sec. 17.800  Purpose.

    The purpose of the Transitional Housing Loan Program regulations is 
to establish application provisions and selection criteria for loans to 
non-profit organizations for use in initial startup costs for 
transitional housing for veterans who are in (or have recently been in) 
a program for the treatment of substance abuse. This program is intended 
to increase the amount of transitional housing available for such 
veterans who need a period of supportive housing to encourage sobriety 
maintenance and reestablishment of social and community relationships.



Sec. 17.801  Definitions.

    (a) Applicant: A non-profit organization making application for a 
loan under this program.
    (b) Non-profit organization: A secular or religious organization, no 
part of the net earnings of which may inure to the benefit of any 
member, founder, contributor, or individual. The organization must 
include a voluntary board and must either maintain or designate

[[Page 725]]

an entity to maintain an accounting system which is operated in 
accordance with generally accepted accounting principles. If not named 
in, or approved under Title 38 U.S.C. (United States Code), Section 
5902, a non-profit organization must provide VA with documentation which 
demonstrates approval as a non-profit organization under Internal 
Revenue Code, Section 501.c(3).
    (c) Recipient: A non-profit organization which has received a loan 
from VA under this program.
    (d) Veteran: A person who served in the active military, naval, or 
air service, and who was discharged or released therefrom under 
conditions other than dishonorable.

(Authority: Sec. 8 of Pub. L. 102-54, 105 Stat 271, 38 U.S.C. 501)



Sec. 17.802  Application provisions.

    (a) To obtain a loan under these Transitional Housing Loan Program 
regulations, an application must be submitted by the applicant in the 
form prescribed by VA in the application package. The completed 
application package must be submitted to the Deputy Associate Director 
for Psychiatric Rehabilitation Services, (302/111C), VA Medical Center, 
100 Emancipation Drive, Hampton, VA 23667. An application package may be 
obtained by writing to the proceeding address or telephoning (804) 722-
9961 x3628. (This is not a toll-free number)
    (b) The application package includes exhibits to be prepared and 
submitted, including:
    (1) Information concerning the applicant's income, assets, 
liabilities and credit history,
    (2) Information for VA to verify the applicant's financial 
information,
    (3) Identification of the official(s) authorized to make financial 
transactions on behalf of the applicant,
    (4) Information concerning:
    (i) The history, purpose and composition of the applicant,
    (ii) The applicant's involvement with recovering substance abusers, 
including:
    (A) Type of services provided,
    (B) Number of persons served,
    (C) Dates during which each type of service was provided,
    (D) Names of at least two references of government or community 
groups whom the organization has worked with in assisting substance 
abusers,
    (iii) The applicant's plan for the provision of transitional housing 
to veterans including:
    (A) Means of identifying and screening potential residents,
    (B) Number of occupants intended to live in the residence for which 
the loan assistance is requested,
    (C) Residence operating policies addressing structure for democratic 
self-government, expulsion policies for nonpayment, alcohol or illegal 
drug use or disruptive behavior,
    (D) Type of technical assistance available to residents in the event 
of house management problems,
    (E) Anticipated cost of maintaining the residence, including rent 
and utilities,
    (F) Anticipated charge, per veteran, for residing in the residence,
    (G) Anticipated means of collecting rent and utilities payments from 
residents,
    (H) A description of the housing unit for which the loan is sought 
to support, including location, type of neighborhood, brief floor plan 
description, etc., and why this residence was selected for this 
endeavor.
    (iv) The applicant's plans for use of the loan proceeds.

(Authority: Sec. 8 of Pub. L. 102-54, 105 Stat. 271, 38 U.S.C. 501)



Sec. 17.803  Order of consideration.

    Loan applications will be considered on a first-come-first-serve 
basis, subject to availability of funds for loans and awards will be 
made on a first-come-first-serve basis to applicants who meet the 
criteria for receiving a loan. If no funds are available for loans, 
applications will be retained in the order of receipt for consideration 
as funds become available.

(Authority: Sec. 8 of Pub. L. 102-54, 105 Stat. 271, 38 U.S.C. 501)



Sec. 17.804  Loan approval criteria.

    Upon consideration of the application package, loan approval will be 
based on the following:

[[Page 726]]

    (a) Favorable financial history and status,
    (1) A minimum of a two-year credit history,
    (2) No open liens, judgments, and no unpaid collection accounts,
    (3) No more than two instances where payments were ever delinquent 
beyond 60 days,
    (4) Net ratio: (monthly expenses divided by monthly cash flow) that 
does not exceed 40%,
    (5) Gross ratio: (total indebtedness divided by gross annual cash 
flow) that does not exceed 35%,
    (6) At least two favorable credit references,
    (b) Demonstrated ability to successfully address the needs of 
substance abusers as determined by a minimum of one year of successful 
experience in providing services, such as, provision of housing, 
vocational training, structured job seeking assistance, organized 
relapse prevention services, or similar activity. Such experience would 
involve at least twenty-five substance abusers, and would be experience 
which could be verified by VA inquiries of government or community 
groups with whom the applicant has worked in providing these services.
    (c) An acceptable plan for operating a residence designed to meet 
the conditions of a loan under this program, which will include:
    (1) Measures to ensure that residents are eligible for residency, 
i.e., are veterans, are in (or have recently been in) a program for the 
treatment of substance abuse, are financially able to pay their share of 
costs of maintaining the residence, and agree to abide by house rules 
and rent/utilities payment provisions,
    (2) Adequate rent/utilities collections to cover cost of maintaining 
the residence,
    (3) Policies that ensure democratic self-run government, including 
expulsion policies, and
    (4) Available technical assistance to residents in the event of 
house management problems.
    (d) Selection of a suitable housing unit for use as a transitional 
residence in a neighborhood with no known illegal drug activity, and 
with adequate living space for number of veterans planned for residence 
(at least one large bedroom for every three veterans, at least one 
bathroom for every four veterans, adequate common space for entire 
household)
    (e) Agreements, signed by an official authorized to bind the 
recipient, which include:
    (1) The loan payment schedule in accordance with the requirements of 
Pub. L. 102-54, with the interest rate being the same as the rate the VA 
is charged to borrow these funds from the U.S. Department of Treasury 
and with a penalty of 4% of the amount due for each failure to pay an 
installment by the date specified in the loan agreement involved, and
    (2) The applicant's intent to use proceeds of loan only to cover 
initial startup costs associated with the residence, such as security 
deposit, furnishings, household supplies, and any other initial startup 
costs.

(Authority: Sec. 8 of Pub. L. 102-54, 105 Stat. 271, 38 U.S.C. 501)



Sec. 17.805  Additional terms of loans.

    In the operation of each residence established with the assistance 
of the loan, the recipient must agree to the following:
    (a) The use of alcohol or any illegal drugs in the residence will be 
prohibited;
    (b) Any resident who violates the prohibition of alcohol or any 
illegal drugs will be expelled from the residence;
    (c) The cost of maintaining the residence, including fees for rent 
and utilities, will be paid by residents;
    (d) The residents will, through a majority vote of the residents, 
otherwise establish policies governing the conditions of the residence, 
including the manner in which applications for residence are approved;
    (e) The residence will be operated solely as a residence for not 
less than six veterans.

(Authority: Sec. 8 of Pub. L. 102-54, 105 Stat. 271, 38 U.S.C. 501)

[[Page 727]]

  Health Care Benefits for Certain Children of Vietnam Veterans--Spina 
                    Bifida and Covered Birth Defects

    Source: 68 FR 1010, Jan. 8, 2003, unless otherwise noted.



Sec. 17.900  Definitions.

    For purposes of Sec. Sec. 17.900 through 17.905--
    Approved health care provider means a health care provider currently 
approved by the Center for Medicare and Medicaid Services (CMS), 
Department of Defense TRICARE Program, Civilian Health and Medical 
Program of the Department of Veterans Affairs (CHAMPVA), Joint 
Commission on Accreditation of Health Care Organizations (JCAHO), or 
currently approved for providing health care under a license or 
certificate issued by a governmental entity with jurisdiction. An entity 
or individual will be deemed to be an approved health care provider only 
when acting within the scope of the approval, license, or certificate.
    Child for purposes of spina bifida means the same as individual as 
defined at Sec. 3.814(c)(2) or Sec. 3.815(c)(2) of this title and for 
purposes of covered birth defects means the same as individual as 
defined at Sec. 3.815(c)(2) of this title.
    Covered birth defect means the same as defined at Sec. 3.815(c)(3) 
of this title and also includes complications or medical conditions that 
are associated with the covered birth defect(s) according to the 
scientific literature.
    Habilitative and rehabilitative care means such professional, 
counseling, and guidance services and such treatment programs (other 
than vocational training under 38 U.S.C. 1804 or 1814) as are necessary 
to develop, maintain, or restore, to the maximum extent practicable, the 
functioning of a disabled person.
    Health care means home care, hospital care, nursing home care, 
outpatient care, preventive care, habilitative and rehabilitative care, 
case management, and respite care; and includes the training of 
appropriate members of a child's family or household in the care of the 
child; and the provision of such pharmaceuticals, supplies (including 
continence-related supplies such as catheters, pads, and diapers), 
equipment (including durable medical equipment), devices, appliances, 
assistive technology, direct transportation costs to and from approved 
health care providers (including any necessary costs for meals and 
lodging en route, and accompaniment by an attendant or attendants), and 
other materials as the Secretary determines necessary.
    Health care provider means any entity or individual that furnishes 
health care, including specialized clinics, health care plans, insurers, 
organizations, and institutions.
    Home care means medical care, habilitative and rehabilitative care, 
preventive health services, and health-related services furnished to a 
child in the child's home or other place of residence.
    Hospital care means care and treatment furnished to a child who has 
been admitted to a hospital as a patient.
    Nursing home care means care and treatment furnished to a child who 
has been admitted to a nursing home as a resident.
    Outpatient care means care and treatment, including preventive 
health services, furnished to a child other than hospital care or 
nursing home care.
    Preventive care means care and treatment furnished to prevent 
disability or illness, including periodic examinations, immunizations, 
patient health education, and such other services as the Secretary 
determines necessary to provide effective and economical preventive 
health care.
    Respite care means care furnished by an approved health care 
provider on an intermittent basis for a limited period to an individual 
who resides primarily in a private residence when such care will help 
the individual continue residing in such private residence.
    Spina bifida means all forms and manifestations of spina bifida 
except spina bifida occulta (this includes complications or medical 
conditions that are associated with spina bifida according to the 
scientific literature).
    Vietnam veteran for purposes of spina bifida means the same as 
defined at Sec. 3.814(c)(1) or Sec. 3.815(c)(1) of this title

[[Page 728]]

and for purposes of covered birth defects means the same as defined at 
Sec. 3.815(c)(1) of this title.

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)



Sec. 17.901  Provision of health care.

    (a) Spina bifida. VA will provide a Vietnam veteran's child who has 
been determined under Sec. 3.814 or Sec. 3.815 of this title to suffer 
from spina bifida with such health care as the Secretary determines is 
needed by the child for spina bifida. VA may inform spina bifida 
patients, parents, or guardians that health care may be available at 
not-for-profit charitable entities.
    (b) Covered birth defects. VA will provide a woman Vietnam veteran's 
child who has been determined under Sec. 3.815 of this title to suffer 
from spina bifida or other covered birth defects with such health care 
as the Secretary determines is needed by the child for the covered birth 
defects. However, if VA has determined for a particular covered birth 
defect that Sec. 3.815(a)(2) of this title applies (concerning 
affirmative evidence of cause other than the mother's service during the 
Vietnam era), no benefits or assistance will be provided under this 
section with respect to that particular birth defect.
    (c) Providers of care. Health care provided under this section will 
be provided directly by VA, by contract with an approved health care 
provider, or by other arrangement with an approved health care provider.
    (d) Submission of information. For purposes of Sec. Sec. 17.900 
through 17.905:
    (1) The telephone number of the Health Administration Center is 
(888) 820-1756;
    (2) The facsimile number of the Health Administration Center is 
(303) 331-7807;
    (3) The hand-delivery address of the Health Administration Center is 
300 S. Jackson Street, Denver, CO 80209; and
    (4) The mailing address of the Health Administration Center--
    (i) For spina bifida is P.O. Box 65025, Denver, CO 80206-9025; and
    (ii) For covered birth defects is P.O. Box 469027, Denver, CO 80246-
0027.

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)

    Note to Sec. 17.901: This is not intended to be a comprehensive 
insurance plan and does not cover health care unrelated to spina bifida 
or unrelated to covered birth defects. VA is the exclusive payer for 
services paid under Sec. Sec. 17.900 through 17.905 regardless of any 
third party insurer, Medicare, Medicaid, health plan, or any other plan 
or program providing health care coverage. Any third-party insurer, 
Medicare, Medicaid, health plan, or any other plan or program providing 
health care coverage would be responsible according to its provisions 
for payment for health care not relating to spina bifida or covered 
birth defects.



Sec. 17.902  Preauthorization.

    (a) Preauthorization from a benefits advisor of the Health 
Administration Center is required for the following services or benefits 
under Sec. Sec. 17.900 through 17.905: rental or purchase of durable 
medical equipment with a total rental or purchase price in excess of 
$300, respectively; transplantation services; mental health services; 
training; substance abuse treatment; dental services; and travel (other 
than mileage at the General Services Administration rate for privately 
owned automobiles). Authorization will only be given in those cases 
where there is a demonstrated medical need related to the spina bifida 
or covered birth defects. Requests for provision of health care 
requiring preauthorization shall be made to the Health Administration 
Center and may be made by telephone, facsimile, mail, or hand delivery. 
The application must contain the following:
    (1) Name of child,
    (2) Child's Social Security number,
    (3) Name of veteran,
    (4) Veteran's Social Security number,
    (5) Type of service requested,
    (6) Medical justification,
    (7) Estimated cost, and
    (8) Name, address, and telephone number of provider.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
preauthorization is not required for a condition for which failure to 
receive immediate treatment poses a serious threat to life or health. 
Such emergency care should be reported by telephone to the Health 
Administration

[[Page 729]]

Center within 72 hours of the emergency.

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0578.)



Sec. 17.903  Payment.

    (a)(1) Payment for services or benefits under Sec. Sec. 17.900 
through 17.905 will be determined utilizing the same payment 
methodologies as provided for under the Civilian Health and Medical 
Program of the Department of Veterans Affairs (CHAMPVA) (see Sec. 
17.270).
    (2) As a condition of payment, the services must have occurred:
    (i) For spina bifida, on or after October 1, 1997, and must have 
occurred on or after the date the child was determined eligible for 
benefits under Sec. 3.814 of this title.
    (ii) For covered birth defects, on or after December 1, 2001, and 
must have occurred on or after the date the child was determined 
eligible for benefits under Sec. 3.815 of this title.
    (3) Claims from approved health care providers must be filed with 
the Health Administration Center in writing (facsimile, mail, hand 
delivery, or electronically) no later than:
    (i) One year after the date of service; or
    (ii) In the case of inpatient care, one year after the date of 
discharge; or
    (iii) In the case of retroactive approval for health care, 180 days 
following beneficiary notification of eligibility.
    (4) Claims for health care provided under the provisions of 
Sec. Sec. 17.900 through 17.905 must contain, as appropriate, the 
information set forth in paragraphs (a)(4)(i) through (a)(4)(v) of this 
section.
    (i) Patient identification information:
    (A) Full name,
    (B) Address,
    (C) Date of birth, and
    (D) Social Security number.
    (ii) Provider identification information (inpatient and outpatient 
services):
    (A) Full name and address (such as hospital or physician),
    (B) Remittance address,
    (C) Address where services were rendered,
    (D) Individual provider's professional status (M.D., Ph.D., R.N., 
etc.), and
    (E) Provider tax identification number (TIN) or Social Security 
number.
    (iii) Patient treatment information (long-term care or institutional 
services):
    (A) Dates of service (specific and inclusive),
    (B) Summary level itemization (by revenue code),
    (C) Dates of service for all absences from a hospital or other 
approved institution during a period for which inpatient benefits are 
being claimed,
    (D) Principal diagnosis established, after study, to be chiefly 
responsible for causing the patient's hospitalization,
    (E) All secondary diagnoses,
    (F) All procedures performed,
    (G) Discharge status of the patient, and
    (H) Institution's Medicare provider number.
    (iv) Patient treatment information for all other health care 
providers and ancillary outpatient services such as durable medical 
equipment, medical requisites, and independent laboratories:
    (A) Diagnosis,
    (B) Procedure code for each procedure, service, or supply for each 
date of service, and
    (C) Individual billed charge for each procedure, service, or supply 
for each date of service.
    (v) Prescription drugs and medicines and pharmacy supplies:
    (A) Name and address of pharmacy where drug was dispensed,
    (B) Name of drug,
    (C) National Drug Code (NDC) for drug provided,
    (D) Strength,
    (E) Quantity,
    (F) Date dispensed,
    (G) Pharmacy receipt for each drug dispensed (including billed 
charge), and
    (H) Diagnosis for which each drug is prescribed.
    (b) Health care payment will be provided in accordance with the 
provisions of Sec. Sec. 17.900 through 17.905. However, the

[[Page 730]]

following are specifically excluded from payment:
    (1) Care as part of a grant study or research program,
    (2) Care considered experimental or investigational,
    (3) Drugs not approved by the U.S. Food and Drug Administration for 
commercial marketing,
    (4) Services, procedures, or supplies for which the beneficiary has 
no legal obligation to pay, such as services obtained at a health fair,
    (5) Services provided outside the scope of the provider's license or 
certification, and
    (6) Services rendered by providers suspended or sanctioned by a 
Federal agency.
    (c) Payments made in accordance with the provisions of Sec. Sec. 
17.900 through 17.905 shall constitute payment in full. Accordingly, the 
health care provider or agent for the health care provider may not 
impose any additional charge for any services for which payment is made 
by VA.
    (d) Explanation of benefits (EOB)--(1) When a claim under the 
provisions of Sec. Sec. 17.900 through 17.905 is adjudicated, an EOB 
will be sent to the beneficiary or guardian and the provider. The EOB 
provides, at a minimum, the following information:
    (i) Name and address of recipient,
    (ii) Description of services and/or supplies provided,
    (iii) Dates of services or supplies provided,
    (iv) Amount billed,
    (v) Determined allowable amount,
    (vi) To whom payment, if any, was made, and
    (vii) Reasons for denial (if applicable).
    (2) [Reserved]

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0578.)



Sec. 17.904  Review and appeal process.

    For purposes of Sec. Sec. 17.900 through 17.905, if a health care 
provider, child, or representative disagrees with a determination 
concerning provision of health care or with a determination concerning 
payment, the person or entity may request reconsideration. Such request 
must be submitted in writing (by facsimile, mail, or hand delivery) 
within one year of the date of the initial determination to the Health 
Administration Center (Attention: Chief, Benefit and Provider Services). 
The request must state why it is believed that the decision is in error 
and must include any new and relevant information not previously 
considered. Any request for reconsideration that does not identify the 
reason for dispute will be returned to the sender without further 
consideration. After reviewing the matter, including any relevant 
supporting documentation, a benefits advisor will issue a written 
determination (with a statement of findings and reasons) to the person 
or entity seeking reconsideration that affirms, reverses, or modifies 
the previous decision. If the person or entity seeking reconsideration 
is still dissatisfied, within 90 days of the date of the decision he or 
she may submit in writing (by facsimile, mail, or hand delivery) to the 
Health Administration Center (Attention: Director) a request for review 
by the Director, Health Administration Center. The Director will review 
the claim and any relevant supporting documentation and issue a decision 
in writing (with a statement of findings and reasons) that affirms, 
reverses, or modifies the previous decision. An appeal under this 
section would be considered as filed at the time it was delivered to the 
VA or at the time it was released for submission to the VA (for example, 
this could be evidenced by the postmark, if mailed).

    Note to Sec. 17.904: The final decision of the Director will inform 
the claimant of further appellate rights for an appeal to the Board of 
Veterans' Appeals.

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0578.)



Sec. 17.905  Medical records.

    Copies of medical records generated outside VA that relate to 
activities for which VA is asked to provide payment or that VA 
determines are necessary to

[[Page 731]]

adjudicate claims under Sec. Sec. 17.900 through 17.905 must be 
provided to VA at no cost.

(Authority: 38 U.S.C. 101(2), 1802-1803, 1811-1813, 1821)

Payment or Reimbursement for Emergency Services for Nonservice-Connected 
                     Conditions in Non-VA Facilities

    Source: 66 FR 36470, July 12, 2001, unless otherwise noted.



Sec. 17.1000  Payment or reimbursement for emergency services for 
nonservice-connected conditions in non-VA facilities.

    Sections 17.1000 through 17.1008 constitute the requirements under 
38 U.S.C. 1725 that govern VA payment or reimbursement for non-VA 
emergency services furnished to a veteran for nonservice-connected 
conditions.

(Authority: 38 U.S.C. 1725)

    Note to Sec. 17.1000: In cases where a patient is admitted for 
inpatient care, health care providers furnishing emergency treatment who 
believe they may have a basis for filing a claim with VA for payment 
under 38 U.S.C. 1725 should contact VA within 48-hours after admission 
for emergency treatment. Such contact is not a condition of VA payment. 
However, the contact will assist the provider in understanding the 
conditions for payment. The contact may also assist the provider in 
planning for transfer of the veteran after stabilization.

[66 FR 36470, July 12, 2001, as amended at 68 FR 3404, Jan. 24, 2003]



Sec. 17.1001  Definitions.

    For purposes of Sec. Sec. 17.1000 through 17.1008:
    (a) The term health-plan contract means any of the following:
    (1) An insurance policy or contract, medical or hospital service 
agreement, membership or subscription contract, or similar arrangement 
under which health services for individuals are provided or the expenses 
of such services are paid;
    (2) An insurance program described in section 1811 of the Social 
Security Act (42 U.S.C. 1395c) or established by section 1831 of that 
Act (42 U.S.C. 1395j);
    (3) A State plan for medical assistance approved under title XIX of 
the Social Security Act (42 U.S.C. 1396 et seq.);
    (4) A workers' compensation law or plan described in section 38 
U.S.C. 1729(a)(2)(A); or
    (5) A law of a State or political subdivision described in 38 U.S.C. 
1729(a)(2)(B) (concerning motor vehicle accidents).
    (b) The term third party means any of the following:
    (1) A Federal entity;
    (2) A State or political subdivision of a State;
    (3) An employer or an employer's insurance carrier;
    (4) An automobile accident reparations insurance carrier; or
    (5) A person or entity obligated to provide, or to pay the expenses 
of, health services under a health-plan contract.
    (c) The term duplicate payment means payment made, in whole or in 
part, for the same emergency services for which VA reimbursed or made 
payment.
    (d) The term stabilized means that no material deterioration of the 
emergency medical condition is likely, within reasonable medical 
probability, to occur if the veteran is discharged or transferred to a 
VA or other Federal facility.
    (e) The term VA medical facility of jurisdiction means the nearest 
VA medical facility to where the emergency service was provided.

(Authority: 38 U.S.C. 1725)



Sec. 17.1002  Substantive conditions for payment or reimbursement.

    Payment or reimbursement under 38 U.S.C. 1725 for emergency services 
may be made only if all of the following conditions are met:
    (a) The emergency services were provided in a hospital emergency 
department or a similar facility held out as providing emergency care to 
the public;
    (b) The claim for payment or reimbursement for the initial 
evaluation and treatment is for a condition of such a nature that a 
prudent layperson would have reasonably expected that delay in seeking 
immediate medical attention would have been hazardous to life or health 
(this standard would be

[[Page 732]]

met if there were an emergency medical condition manifesting itself by 
acute symptoms of sufficient severity (including severe pain) that a 
prudent layperson who possesses an average knowledge of health and 
medicine could reasonably expect the absence of immediate medical 
attention to result in placing the health of the individual in serious 
jeopardy, serious impairment to bodily functions, or serious dysfunction 
of any bodily organ or part);
    (c) A VA or other Federal facility/provider was not feasibly 
available and an attempt to use them beforehand would not have been 
considered reasonable by a prudent layperson (as an example, these 
conditions would be met by evidence establishing that a veteran was 
brought to a hospital in an ambulance and the ambulance personnel 
determined that the nearest available appropriate level of care was at a 
non-VA medical center);
    (d) The claim for payment or reimbursement for any medical care 
beyond the initial emergency evaluation and treatment is for a continued 
medical emergency of such a nature that the veteran could not have been 
safely discharged or transferred to a VA or other Federal facility (the 
medical emergency lasts only until the time the veteran becomes 
stabilized);
    (e) At the time the emergency treatment was furnished, the veteran 
was enrolled in the VA health care system and had received medical 
services under authority of 38 U.S.C. chapter 17 within the 24-month 
period preceding the furnishing of such emergency treatment;
    (f) The veteran is financially liable to the provider of emergency 
treatment for that treatment;
    (g) The veteran has no coverage under a health-plan contract for 
payment or reimbursement, in whole or in part, for the emergency 
treatment (this condition cannot be met if the veteran has coverage 
under a health-plan contract but payment is barred because of a failure 
by the veteran or the provider to comply with the provisions of that 
health-plan contract, e.g., failure to submit a bill or medical records 
within specified time limits, or failure to exhaust appeals of the 
denial of payment);
    (h) If the condition for which the emergency treatment was furnished 
was caused by an accident or work-related injury, the claimant has 
exhausted without success all claims and remedies reasonably available 
to the veteran or provider against a third party for payment of such 
treatment; and the veteran has no contractual or legal recourse against 
a third party that could reasonably be pursued for the purpose of 
extinguishing, in whole or in part, the veteran's liability to the 
provider; and
    (i) The veteran is not eligible for reimbursement under 38 U.S.C. 
1728 for the emergency treatment provided (38 U.S.C. 1728 authorizes VA 
payment or reimbursement for emergency treatment to a limited group of 
veterans, primarily those who receive emergency treatment for a service-
connected disability).

(Authority: 38 U.S.C. 1725)

[66 FR 36470, July 12, 2001, as amended at 68 FR 3404, Jan. 24, 2003]



Sec. 17.1003  Emergency transportation.

    Notwithstanding the provisions of Sec. 17.1002, payment or 
reimbursement under 38 U.S.C. 1725 for ambulance services, including air 
ambulance services, may be made for transporting a veteran to a facility 
only if the following conditions are met:
    (a) Payment or reimbursement is authorized under 38 U.S.C. 1725 for 
emergency treatment provided at such facility (or payment or 
reimbursement could have been authorized under 38 U.S.C. 1725 for 
emergency treatment if death had not occurred before emergency treatment 
could be provided);
    (b) The veteran is financially liable to the provider of the 
emergency transportation;
    (c) The veteran has no coverage under a health-plan contract for 
reimbursement or payment, in whole or in part, for the emergency 
transportation or any emergency treatment authorized under 38 U.S.C. 
1728 (this condition is not met if the veteran has coverage under a 
health-plan contract but payment is barred because of a failure by the 
veteran or the provider to comply

[[Page 733]]

with the provisions of that health-plan contract); and
    (d) If the condition for which the emergency transportation was 
furnished was caused by an accident or work-related injury, the claimant 
has exhausted without success all claims and remedies reasonably 
available to the veteran or provider against a third party for payment 
of such transportation; and the veteran has no contractual or legal 
recourse against a third party that could reasonably be pursued for the 
purpose of extinguishing, in whole or in part, the veteran's liability 
to the provider.

(Authority: 38 U.S.C. 1725)



Sec. 17.1004  Filing claims.

    (a) A claimant for payment or reimbursement under 38 U.S.C. 1725 
must be the entity that furnished the treatment, the veteran who paid 
for the treatment, or the person or organization that paid for such 
treatment on behalf of the veteran.
    (b) To obtain payment or reimbursement for emergency treatment under 
38 U.S.C. 1725, a claimant must submit to the VA medical facility of 
jurisdiction a completed standard billing form (such as a UB92 or a HCFA 
1500). Where the form used does not contain a false claims notice, the 
completed form must also be accompanied by a signed, written statement 
declaring that ``I hereby certify that this claim meets all of the 
conditions for payment by VA for emergency medical services under 38 CFR 
17.1002 (except for paragraph (e)) and 17.1003. I am aware that 38 
U.S.C. 6102(b) provides that one who obtains payment without being 
entitled to it and with intent to defraud the United States shall be 
fined in accordance with title 18, United States Code, or imprisoned not 
more than one year, or both.''

    Note to Sec. 17.1004(b): These regulations regarding payment or 
reimbursement for emergency services for nonservice-connected conditions 
in non-VA facilities also can be found on the internet at http://
www.va.gov/health/elig.

    (c) Notwithstanding the provisions of paragraph (b) of this section, 
no specific form is required for a claimant (or duly authorized 
representative) to claim payment or reimbursement for emergency 
transportation charges under 38 U.S.C. 1725. The claimant need only 
submit a signed and dated request for such payment or reimbursement to 
the VA medical facility of jurisdiction, together with a bill showing 
the services provided and charges for which the veteran is personally 
liable and a signed statement explaining who requested such 
transportation services and why they were necessary.
    (d) To receive payment or reimbursement for emergency services, a 
claimant must file a claim within 90 days after the latest of the 
following:
    (1) July 19, 2001.
    (2) The date that the veteran was discharged from the facility that 
furnished the emergency treatment;
    (3) The date of death, but only if the death occurred during 
transportation to a facility for emergency treatment or if the death 
occurred during the stay in the facility that included the provision of 
the emergency treatment; or
    (4) The date the veteran finally exhausted, without success, action 
to obtain payment or reimbursement for the treatment from a third party.
    (e) If after reviewing a claim the decisionmaker determines that 
additional information is needed to make a determination regarding the 
claim, such official will contact the claimant in writing and request 
additional information. The additional information must be submitted to 
the decisionmaker within 30 days of receipt of the request or the claim 
will be treated as abandoned, except that if the claimant within the 30-
day period requests in writing additional time, the time period for 
submission of the information may be extended as reasonably necessary 
for the requested information to be obtained.

(Authority: 38 U.S.C. 1725)

[66 FR 36470, July 12, 2001, as amended at 68 FR 3404, Jan. 24, 2003]



Sec. 17.1005  Payment limitations.

    (a) Payment or reimbursement for emergency treatment under 38 U.S.C. 
1725 shall be the lesser of the amount for which the veteran is 
personally liable or 70 percent of the amount under

[[Page 734]]

the applicable Medicare fee schedule for such treatment.
    (b) Reimbursement or payment for emergency treatment may be made 
only for the period from the beginning of the initial evaluation 
treatment until such time as the veteran could be safely discharged or 
transferred to a VA facility or other Federal facility. For purposes of 
payment or reimbursement under 38 U.S.C. 1725, VA deems it safe for the 
veteran to be transferred once the veteran has become stabilized.

(Authority: 38 U.S.C. 1725)

[66 FR 36470, July 12, 2001, as amended at 68 FR 3404, Jan. 24, 2003]



Sec. 17.1006  Decisionmakers.

    The Chief of the Health Administration Service or an equivalent 
official at the VA medical facility of jurisdiction will make all 
determinations regarding payment or reimbursement under 38 U.S.C. 1725, 
except that the Fee Service Review Physician or equivalent officer at 
the VA medical facility of jurisdiction will make determinations 
regarding Sec. 17.1002(b), (c), and (d). Any decision denying a benefit 
must be in writing and inform the claimant of VA reconsideration and 
appeal rights.

(Authority: 38 U.S.C. 1725)



Sec. 17.1007  Independent right of recovery.

    (a) VA has the right to recover its payment under this section when, 
and to the extent that, a third party makes payment for all or part of 
the same emergency treatment for which VA reimbursed or made payment 
under this section.
    (1) Under 38 U.S.C. 1725(d)(4), the veteran (or the veteran's 
personal representative, successor, dependents, or survivors) or 
claimant shall ensure that the Secretary is promptly notified of any 
payment received from any third party for emergency treatment furnished 
to the veteran. The veteran (or the veteran's personal representative, 
successor, dependents, or survivors) or claimant shall immediately 
forward all documents relating to such payment, cooperate with the 
Secretary in the investigation of such payment and assist the Secretary 
in enforcing the United States' right to recover any payment made and 
accepted under this section. The required notification and submission of 
documentation must be provided by the veteran or claimant to the VA 
medical facility of jurisdiction within three working days of receipt of 
notice of the duplicate payment.
    (2) If the Chief Financial Officer or equivalent official at the VA 
medical facility of jurisdiction concludes that payment from a third 
party was made for all or part of the same emergency treatment for which 
VA reimbursed or made payment under this section, such VA official 
shall, except as provided in paragraph (c) of this section, initiate 
action to collect or recover the amount of the duplicate payment in the 
same manner as for any other debt owed the United States.
    (b)(1) Any amount paid by the United States to the veteran (or the 
veteran's personal representative, successor, dependents, or survivors) 
or to any other person or organization paying for such treatment shall 
constitute a lien in favor of the United States against any recovery the 
payee subsequently receives from a third party for the same treatment.
    (2) Any amount paid by the United States, and accepted by the 
provider that furnished the veteran's emergency treatment, shall 
constitute a lien against any subsequent amount the provider receives 
from a third party for the same emergency treatment for which the United 
States made payment.
    (c) If it is determined that a duplicate payment was made, the Chief 
Financial Officer or equivalent official at the VA medical facility of 
jurisdiction may waive recovery of a VA payment made under this section 
to a veteran upon determining that the veteran has substantially 
complied with the provisions of paragraph (a)(1) of this section and 
that actions to recover the payment would not be cost-effective or would 
conflict with other litigative interests of the United States.

(Authority: 38 U.S.C. 1725)



Sec. 17.1008  Balance billing prohibited.

    Payment by VA under 38 U.S.C. 1725 on behalf of a veteran to a 
provider of emergency treatment shall, unless rejected and refunded by 
the provider

[[Page 735]]

within 30 days of receipt, extinguish all liability on the part of the 
veteran for that emergency treatment. Neither the absence of a contract 
or agreement between VA and the provider nor any provision of a 
contract, agreement, or assignment to the contrary shall operate to 
modify, limit, or negate this requirement.

(Authority: 38 U.S.C. 1725)


[[Page 737]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of current CFR titles, subtitles, chapters, subchapters and 
parts and an alphabetical list of agencies publishing in the CFR are 
included in the CFR Index and Finding Aids volume to the Code of Federal 
Regulations which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 739]]

            Material Approved for Incorporation by Reference

                      (Revised as of July 1, 2005)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR Part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


38 CFR (PARTS 0 TO 17)

VETERANS ADMINISTRATION
                                                                  38 CFR


National Fire Protection Association

  1 Batterymarch Park, Quincy, MA 02269-9101, 
  Telephone, 800- 344-3555
NFPA 101, Life Safety Code, 1981 ed...............        17.53b; 17.53c
NFPA 101, Life Safety Code, 1985 ed. (Feb. 7,               17.51e(c)(2)
  1985).
NFPA 101 Life Safety Code, 1988 ed., including            17.51j(a)(2); 
  NFPA 101M, Alternative Approaches to Life                 17.183(c)(4)
  Safety, 1987 ed.
NFPA 101 Life Safety Code, 1994 ed., Chapters 1-7,   17.63; 17.81; 17.82
  31, and Appendix A.
NFPA 101 Life Safety Code, 1994 ed., Chapters 22            17.63, 17.81
  and 23.
NFPA 101 Life Safety Code, 1994 ed., Chapters 26                   17.82
  and 27.
NFPA 101A Guide to Alternative Approaches to Life                  17.63
  Safety, 1995 ed.

[[Page 741]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2005)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  [Reserved]
        II  Office of Management and Budget Circulars and Guidance
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements [Reserved]


                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)

[[Page 742]]

        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
        LV  National Endowment for the Arts (Part 6501)
       LVI  National Endowment for the Humanities (Part 6601)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
     LXVII  Institute of Museum and Library Services (Part 7701)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)

[[Page 743]]

    LXXVII  Office of Management and Budget (Part 8701)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Part 
                9701)

                      Title 6--Homeland Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)

[[Page 744]]

        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

[[Page 745]]

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)

[[Page 746]]

        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)

[[Page 747]]

        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

[[Page 748]]

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 749]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)

[[Page 750]]

        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 751]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 752]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)

[[Page 753]]

       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)

[[Page 754]]

       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 755]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 756]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)

[[Page 757]]

        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 758]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 759]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2005)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 760]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 761]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II

[[Page 762]]

  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 763]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General

[[Page 764]]

  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A

[[Page 765]]

  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
   Commission
[[Page 766]]

Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V

[[Page 767]]

Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 769]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000,'' published in 
11 separate volumes.

                                  2001

38 CFR
                                                                   66 FR
                                                                    Page
Chapter I
Chapter I Nomenclature change...............................44053, 67667
1.10 (a)(1)(v) added...............................................27598
3 Technical correction.............................................23763
3.6 (a) and (e) revised............................................48560
3.8 Redesignated as 3.40...........................................66767
3.9 Redesignated as 3.41...........................................66767
3.40 Redesignated from 3.8; (c)(1) amended.........................66767
3.41 Redesignated from 3.9.........................................66767
3.42 Added.........................................................66767
3.43 Added.........................................................66768
3.102 Amended......................................................45630
3.103 (b)(2) heading; (3) introductory text, (i) and authority 
        citation revised; (b)(3)(ii) through (vi) amended; (b)(4) 
        added......................................................56613
3.104 (a) amended..................................................21874
3.105 (b) amended..................................................21874
3.113 Removed......................................................18194
3.156 (a) and authority citation revised...........................45630
3.159 Revised......................................................45630
3.203 (a)(1) amended...............................................19858
3.204 (a)(1) amended...............................................56614
3.217 Added........................................................56614
3.256 (a) introductory text amended (OMB number)...................56614
3.277 (b) introductory text amended (OMB number)...................56614
3.300 Added........................................................18198
3.309 (e) amended; eff. 7-9-01.....................................23168
3.310 (a) amended..................................................18198
3.317 (a)(1)(i) amended; interim...................................56615
3.326 (a) amended..................................................45632
3.353 (b)(1) amended...............................................48560
3.405 Added........................................................66768
3.452 Cross reference revised......................................48560
3.501 (i)(7) amended...............................................48560
3.505 Added........................................................66768
3.551 (i) amended..................................................48560
3.557 Heading, (b) and cross reference revised; (d) amended........48560
3.558 Heading and (a) revised......................................48560
3.559 Heading revised; (a) and (b) amended.........................48561
3.808 (d) amended..................................................44528
3.814 Heading, (a), (c)(2) and (d) revised.........................13436
3.1007 Amended.....................................................48561
3.1604 (d)(1)(ii) revised..........................................48561
3.2100--3.2130 (Subpart D) Added...................................18195
3.2600 Undesignated center heading and section added...............21874
4.112 Revised; eff. 7-2-01.........................................29488
4.114 Amended; authority citation added............................29488
13.70 (a)(2) amended...............................................48561
13.71 (b) amended..................................................48561
13.108 Heading revised; (a) and (c) amended........................48561
17 Technical correction............................................64904
17.101 Revised; interim............................................23327
17.108 Added; interim..............................................63448
17.110 Added.......................................................63451
17.210--17.222 Undesignated heading, note and sections removed.....33847

[[Page 770]]

17.1000--17.1008 Undesignated center heading and sections added; 
        interim....................................................36470

                                  2002

38 CFR
                                                                   67 FR
                                                                    Page
Chapter I
1.600 Added........................................................62643
1.617 Added........................................................62644
1.618 Added........................................................62644
Chapter Nomenclature change........................................16023
2.6 (e)(6) removed; (e)(7) through (12) redesignated as (e)(6) 
        through (11); (h) through (k) added.........................3434
3 Nomenclature change..............................................46868
3.6 (a)(1), (2) and (3) removed; (a) amended; (e)(3) added.........49585
3.27 (c) and (d) revised...........................................49586
3.29 (c) revised...................................................49586
3.31 Introductory text and (c)(4) (ii) amended; authority citation 
        revised....................................................49586
3.105 (g) revised..................................................49586
3.114 (a) introductory text amended; (a) authority citation 
        revised....................................................49586
3.150 Amended......................................................40867
3.158 (a) and (c) amended..........................................49586
3.216 Amended; authority citation revised..........................49586
3.261 (a)(40) revised..............................................49586
3.262 (y) revised..................................................49587
3.263 (g) revised..................................................49587
3.272 (h) introductory text amended.................................9209
    (u) revised....................................................49587
3.275 (i) revised..................................................49587
3.304 (f) revised..................................................10332
3.307 (a) introductory text and (c) amended; (d) and authority 
        citation revised...........................................67793
3.309 (d)(2)(xvii) through (xxi) and (3)(ii)(D) added...............3615
    (a) amended....................................................67793
3.311 (b)(3) and (4) revised........................................6871
3.317 Regulation at 66 FR 56615 confirmed..........................78980
3.350 (a) introductory text amended; (a)(7) added...................6873
3.353 (b)(2) revised...............................................46868
3.403 (b) revised; (c) added.......................................49587
3.503 (b) revised..................................................49587
3.700 (a)(2)(iii), (3) and (5)(i) amended; (a)(5) heading and 
        authority citation revised.................................60868
3.814 Heading and authority citation revised; (a) heading and (d) 
        heading added; (a), (c)(1), (2) and (e) introductory text 
        amended; (b) and (d) authority citation removed; OMB 
        number.....................................................49587
3.815 Added........................................................49588
3.850 (d) amended..................................................46868
3.1000 Heading, (c)(1) and (d)(4) revised..........................65708
3.2600 (a) amended.................................................46868
4.71 Amended.......................................................48785
4.71a Tables amended........................................48785, 54349
4.116 Amended.......................................................6874
    Table corrected................................................37695
4.118 Revised......................................................49596
    Corrected...............................................58448, 58449
8.0 Revised........................................................54738
8.1 Revised........................................................54738
8.18 Revised.......................................................54738
8.25 Undesignated center heading and section removed; new 8.25 
        redesignated from 8.26.....................................54739
8.26 Redesignated as 8.25; new 8.26 redesignated from 8.27.........54739
8.27 Redesignated as 8.26; new 8.27 redesignated from 8.28.........54739
8.28 Redesignated as 8.27; new 8.28 redesignated from 8.29.........54739
8.29 Redesignated as 8.28; new 8.29 redesignated from 8.30.........54739
8.30 Redesignated as 8.29; new 8.30 redesignated from 8.31.........54739
8.31 Redesignated as 8.30; new 8.31 redesignated from 8.32.........54739
8.32 Redesignated as 8.31; new 8.32 redesignated from 8.33; 
        revised....................................................54739
8.33 Redesignated as 8.32; new 8.33 redesignated from 8.37.........54739
8.37 Redesignated as 8.33..........................................54739
9 Authority citation revised.......................................52413
9.1 (b) revised....................................................52413
9.14 Added.........................................................52413
13 Nomenclature change.............................................46868
13.2 (a) amended...................................................46869
13.56 (b) amended..................................................46869
13.71 (a)(3) and (b) amended.......................................46869
13.108 Revised.....................................................46869
15.170 (c) amended..................................................3435
17.36 (a)(1) through (3) and (b)(3) amended........................35039

[[Page 771]]

    Amended........................................................62887
    (d)(3), (4) and (5) redesignated as (d)(4), (5) and (6); 
(a)(2), (b)(4), (7), (d)(1), new (5) introductory text, (i) and 
authority citation revised; (b)(3), new (d)(5)(iii) and (f) 
amended; (b)(8) and new (d)(3) added; (d)(1) note removed..........62888
17.37 (a), (b), (c) and (e) through (i) amended....................35039
17.38 (a) introductory text, (1)(xi) and authority citation 
        revised....................................................35039
17.39 Added........................................................41179
17.48 Redesignated from 17.49.......................................4668
17.49 Redesignated as 17.48; new 17.49 added........................4668
    Revised; interim...............................................58529
17.108 Regulation at 66 FR 63448 confirmed.........................21999
17.111 Redesignated as 17.112; new 17.111 added....................35040
17.112 Redesignated as 17.113......................................35039
    New 17.112 added...............................................35040
17.113 Redesignated as 17.114; new 17.113 redesignated from 17.112
                                                                   35039
17.114 Redesignated as 17.115; new 17.114 redesignated from 17.113
                                                                   35039
17.115 Redesignated as 17.116; new 17.115 redesignated from 17.114
                                                                   35039
17.116 Redesignated from 17.115....................................35039
17.271 (a) introductory text and (b) revised; interim...............4359
    Regulation at 67 FR 4359 confirmed.............................66555
17.272 (a)(31)(x) added; interim....................................4359
    Regulation at 67 FR 4359 confirmed.............................66555
17.274 Revised; interim.............................................4359
    Regulation at 67 FR 4359 confirmed.............................66555
    (c)(ii) corrected; interim......................................6874

                                  2003

38 CFR
                                                                   68 FR
                                                                    Page
Chapter I
1.200 Undesignated center heading and section added................17550
1.201 Added........................................................17550
1.203 Added........................................................17550
1.204 Added........................................................17550
1.205 Added........................................................17550
1.582 (d) added; eff. 8-12-03......................................35298
1.620 Revised......................................................15660
2.6 (l) and authority citation added...............................25504
2.7 (b) amended; authority citation added..........................25504
3.3 (a)(3)(v) authority citation removed; (a)(3)(v) and (vi) 
        redesignated as (a)(3)(vi)(B) introductory text and 
        (a)(3)(v); new (a)(3)(v) and (vi)(B) introductory text 
        amended; (a)(3)(vi)(A) and (B)(1) through (4) added........34541
3.27 (d) redesignated as (e); new (d) added; new (e) amended.......55467
3.261 (a) table amended............................................60852
3.262 (z) added....................................................60852
3.263 (h) added....................................................60852
3.272 (v) added....................................................60852
3.275 (j) added....................................................60852
3.307 (a)(6)(ii) and (iii) amended.................................34541
3.309 (c) amended..................................................42603
    (e) amended....................................................59542
3.317 (a)(1) introductory text, (b) introductory text, (6) and 
        (d)(1) amended; (a)(2) through (5) redesignated as (a)(3) 
        through (6); new (a)(2) added..............................34541
3.341 (b) and (c) amended..........................................34542
3.353 (b)(1) amended...............................................34542
3.400 (b)(1) heading and (e) heading revised.......................34542
3.452 (c)(2) removed; (c)(3) redesignated as new (c)(2); heading 
        and new (c)(2) authority citation revised; (c)(1) amended 
                                                                   34542
3.454 (c) and (d) removed..........................................34542
3.501 (i)(7) removed...............................................34542
3.551 (a) introductory text and (i) amended; (a) authority 
        citation and (b) authority citation added..................34542
3.552 (a)(2) amended...............................................34542
3.557 Removed......................................................34542
3.558 (a) removed; (b) and (c) redesignated as new (a) and (b); 
        new (b) amended............................................34542
3.559 Removed......................................................34542
3.665 Heading revised; (a) amended; (c)(3) and (n) added; (m) 
        authority citation removed.................................34542

[[Page 772]]

3.666 Heading revised; introductory text amended; (e) added........34543
3.801 (e) amended; authority citation added........................34543
3.852 (a)(2) amended; (a)(3) and (d) removed; (e) redesignated as 
        new (d); (a) authority citation revised....................34543
3.853 (d) removed..................................................34543
3.1007 Amended; authority citation revised.........................34543
4.71a Table amended................................................51456
4.87 Table amended.................................................25823
13.70 (a)(1) redesignated as (a); (a)(2) removed; authority 
        citation added.............................................34543
13.71 (a) heading and (b) removed; (a)(1) through (iii), (2) 
        through (iii) and (3) redesignated as (a) through (3), (b) 
        through (3) and (c); new (a) introductory text, (b)(3) and 
        (c) amended; authority citation revised....................34543
13.74 Removed......................................................34543
13.75 Removed......................................................34543
13.76 Removed......................................................34543
13.77 Removed......................................................34543
13.107 Authority citation revised..................................34543
13.108 Removed.....................................................34543
13.109 Removed.....................................................34543
14.560 (a), (b) and (c) designation removed........................17551
14.563 Removed.....................................................17551
14.626 Revised......................................................8544
14.627 (g) revised; (h) through (k) redesignated as (k) through 
        (n); new (h), (i), (j) and authority citation added.........8544
14.628 (e) removed; (f) and (g) redesignated as (e) and (f); 
        (a)(2), (b), (c) heading, (d) and new (e) revised; OMB 
        number......................................................8544
14.629 Heading, introductory text, (a) introductory text, (1), 
        (2)(ii), authority citation, (b) and (c) revised; 
        (a)(1)(i), (ii) and (iii) removed; OMB number...............8545
14.630 Revised......................................................8546
14.631 (c)(3) and (e) removed; (b), (c) and (d) redesignated as 
        (e), (f) and (g); (a) introductory text, new (e), (f)(1), 
        (g) and authority citation revised; new (b), (c) and (d) 
        added.......................................................8546
14.632 Revised......................................................8547
14.634 Amended......................................................8547
14.635 Introductory text, (b) and authority citation revised; 
        amended.....................................................8547
17.36 (b)(7), (8) and (c)(2) revised................................2672
17.96 Regulation at 63 FR 37780 confirmed..........................11977
    Revised; interim...............................................43929
17.101 Revised; interim............................................22968
    Revised........................................................70715
17.108 (b)(1) amended; (b)(3) added................................60854
17.170 (c) amended.................................................17551
17.700--17.731 Undesignated center heading and sections removed; 
        interim....................................................13594
17.900 Undesignated center heading and section revised..............1010
17.901 Revised......................................................1010
17.902 Revised......................................................1010
17.903 Revised......................................................1010
17.904 Revised......................................................1010
17.905 Revised......................................................1010
17.1000 Note amended................................................3404
17.1002 (d) amended.................................................3404
17.1004 (b) amended.................................................3404
17.1005 (b) amended.................................................3404

                                  2004

   (Regulations published from January 1, 2004, through July 1, 2004)

38 CFR
                                                                   69 FR
                                                                    Page
Title 38 Nomenclature change.......................................18803
Chapter I
1 Authority citation revised.......................................62191
1.18 Added; interim................................................60089
1.620 (e) and (h) revised; eff. 8-2-04.............................39845
1.631 Regulation at 68 FR 55319 confirmed..........................11531
1.900 Revised; authority citation revised..........................62191
1.901 Revised......................................................62191
1.902 Revised......................................................62192
1.903 Revised......................................................62192
1.904 Revised......................................................62192
1.905 Revised......................................................62192
1.906 Revised......................................................62192
1.907 Revised......................................................62192
1.910 Revised; authority citation removed..........................62192

[[Page 773]]

1.911 (a), (b), (c)(3), (d)(4), (5), (f)(1), (5) and authority 
        citation revised; (d)(6) and (7) added.....................62193
1.911a Added.......................................................62193
1.912 (a), (c)(2), (d)(1), (2), and (f) revised; (d)(3), (4), (g), 
        (h) and (i) added..........................................62194
1.912a (b), (c)(1) and (d) amended; (c)(4) added...................62194
1.913 Removed; new 1.913 redesignated from 1.916 and revised.......62195
1.914 Removed; new 1.914 redesignated from 1.917 and revised.......62195
1.915 Removed; new 1.915 redesignated from 1.919; new (a), (c) and 
        (g) revised; new (d) amended; new (f)(2) and authority 
        citation removed...........................................62195
1.916 Redesignated as new 1.913 and revised; new 1.916 
        redesignated from 1.922; new (d)(2)(i) and authority 
        citation revised...........................................62195
1.917 Redesignated as new 1.914 and revised; new 1.917 
        redesignated from 1.923; new (b) introductory text 
        revised; (c), (d) and (e) added............................62195
1.918 Removed......................................................62195
    Redesignated from 1.924; new (a), (b) and authority citation 
revised............................................................62196
1.919 Redesignated as new 1.915 and amended........................62195
1.919 Redesignated from 1.925; new (a), (b)(3) and authority 
        citation revised...........................................62196
1.920 Removed......................................................62195
    Redesignated from 1.926; new (a), (c)(6), (e) and authority 
citation revised...................................................62196
1.921 Removed......................................................62195
    Redesignated from 1.927 and revised............................62196
1.922 Redesignated as new 1.916 and amended........................62195
    Redesignated from 1.928 and revised............................62196
1.923 Redesignated as new 1.917 and amended........................62195
    Added..........................................................62196
1.924 Redesignated as new 1.918 and amended........................62196
    Added..........................................................62197
1.925 Redesignated as new 1.919 and amended........................62196
1.926 Redesignated as new 1.920 and amended........................62196
1.927 Redesignated as new 1.921 and revised........................62196
1.928 Redesignated as new 1.922 and revised........................62196
1.930 Revised; authority citation revised..........................62198
1.931 Revised......................................................62198
1.932 Revised......................................................62198
1.933 Revised......................................................62198
1.934 Revised......................................................62198
1.935 Revised......................................................62198
1.936 Revised......................................................62198
1.937 Removed......................................................62199
1.938 Removed......................................................62199
1.940 Revised......................................................62199
1.941 Revised......................................................62199
1.942 (g) and (h) added............................................62200
1.943 Revised......................................................62200
1.944 Added........................................................62200
1.950 Revised; authority citation revised..........................62200
1.951 Revised......................................................62200
1.952 Revised......................................................62200
1.953 Revised......................................................62200
1.954 Removed......................................................62201
1.955 (b), (c) and (d) revised.....................................62201
1.956 (a)(2)(iii) removed; (a)(2)(iv) redesignated as (a)(2)(iii); 
        (a)(2)(i), (ii). new (iii), (3), and (b) revised; new 
        (a)(2)(iv) added...........................................62201
1.957 (a)(1) introductory text and (iii) revised; (a)(3) removed 
                                                                   62201
1.958 Revised......................................................62201
1.963a Revised.....................................................62202
1.965 (b)(3) removed...............................................62202
1.966 Authority citation added.....................................62202
1.970 Amended; authority citation revised..........................62202
1.980 (f) and (g) redesignated as (h) and (i); (a), (b) and new 
        (h) revised; new (f) and (g) added.........................62202
1.982 (a), (b) and (c)(3) revised..................................62202
1.983 (b)(8) and (13) revised......................................62202
1.984 (a) and (b) amended..........................................62203
1.989 (a) amended..................................................62203
1.990 (a) amended..................................................62203
1.991 (a) amended; (d) revised.....................................62203
1.992 (c) and authority citation revised...........................62203
1.995 Added........................................................62203
2 Authority citation revised.......................................62203

[[Page 774]]

2.6 (c)(1), (2), and (e)(4) introductory text amended; (c) 
        heading, (d), (e)(4)(iii) authority citation and (9) 
        authority citation revised.................................62203
3.1 (r) amended; interim...........................................42880
3.154 Revised......................................................46432
3.309 Regulation at 66 FR 23168 eff. date change...................31882
    3.309 (c) amended; interim.....................................60089
3.358 (a) authority citation removed; (a) and (b)(2) revised.......46433
3.361 Added........................................................46433
3.362 Added........................................................46434
3.363 Added........................................................46434
3.383 (a)(3) and authority citation revised; cross reference added
                                                                   48149
3.400 (i) amended..................................................46434
3.708 (a)(4) amended...............................................46435
3.800 Introductory text added......................................46435
3.807 (c) amended..................................................46435
4.71a Table amended................................................32450
4.114 Correctly amended; CFR correction............................34585
17.49 Regulation at 67 FR 58529 confirmed..........................34075
17.101 Note added...................................................1061
17.102 (h) amended..................................................1061
17.105 (a) amended; (c) redesignated as (d); new (c) and authority 
        citation added; OMB number.................................62204
17.111 (d) through (g) and authority citation revised; eff. 8-2-04
                                                                   39846
17.149 (b)(3) through (7) redesignated as (b)(4) through (8); new 
        (b)(3) added; authority citation revised; eff. 7-16-04.....33575

                                  2005

38 CFR
                                                                   70 FR
                                                                    Page
Chapter I
1.18 Regulation at 69 FR 60089 confirmed...........................37042
1.600 Undesignated center heading and section removed...............4769
1.601 Removed.......................................................4769
1.602 Removed.......................................................4769
1.603 Removed.......................................................4769
1.617 Removed.......................................................4769
1.618 Removed.......................................................4769
1.620 Removed.......................................................4769
1.621 Removed.......................................................4769
1.629 Removed.......................................................4769
1.630 Removed.......................................................4769
1.631 Removed.......................................................4769
1.632 Removed.......................................................4769
1.633 Removed.......................................................4769
3.261 (a) table amended............................................15591
3.262 Second authority citation after (z) removed; (aa) added......15591
3.263 (f) authority citation and (i) added; second authority 
        citation after (h) removed.................................15591
3.272 (u) authority citation revised; second authority citation 
        after (v) removed; (w) added...............................15591
3.275 (i) authority citation revised; second authority citation 
        after (j) removed; (k) added...............................15591
3.304 (b) introductory text amended................................23029
3.309 Regulation at 69 FR 60089 confirmed..........................37042
16.101 (i) and Footnote 1 amended..................................36328
16.103 (a) and (b)(3) amended; OMB number..........................36328
16.109 OMB number..................................................36328
16.110 (a) amended; OMB number.....................................36328
16.113 OMB number..................................................36328
16.115 OMB number..................................................36328
16.116 OMB number..................................................36328
16.117 OMB number..................................................36328
17.48 Revised......................................................29627
17.56 Heading revised; (d) and (e) redesignated as (e) and (f); 
        (a), (b) and new (f) amended; new (d) added.................5927
17.108 (e)(11) amended; (e)(12) redesignated as (e)(13); new 
        (e)(12) added; interim.....................................22596


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