[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51783-51785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26253]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AI45


Survivors and Dependents Education: Extension of Eligibility 
Period

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the educational assistance and 
educational benefit regulations of the Department of Veterans Affairs 
(VA). It restores provisions that govern the extension of the period 
eligible spouses and surviving spouses have to use Survivors' and 
Dependents' Educational Assistance (DEA).

EFFECTIVE DATE: October 3, 1997.

FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director 
for Policy and Program Administration, Education Service, Veterans 
Benefits Administration, 202-273-7187.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on January 9, 1997 (62 FR 1303), VA proposed to amend the 
``Survivors' and Dependents' Educational Assistance Under 38 U.S.C. 
Chapter 35'' regulations which are set forth in 38 CFR 21.3001 et seq. 
It was proposed to add to the regulations a definition and a rule 
concerning qualifying for an extension of time for a spouse or 
surviving spouse to use Survivor's and Dependents' Educational 
Assistance. Such an extension is permitted when she or he could not

[[Page 51784]]

complete a program of education within the normal ten-year period for 
doing so due to a physical or mental disability that is not the result 
of willful misconduct. This definition and rule were removed in error 
from the Code of Federal Regulations when Sec. 21.1043 was removed.
    Interested persons were given 60 days to submit comments. One 
comment from an individual was received.
    That individual suggested that, in addition to making the proposed 
changes, VA should restore Sec. 21.1043 to the Code of Federal 
Regulations. He argued that by doing so a Vietnam Era veteran who had 
been unable to complete his or her training within the ten-year period 
allowed under the Vietnam Era GI Bill due to a physical or mental 
disability would be able to resume training under the Vietnam Era GI 
Bill.
    After careful consideration VA has determined that there is no 
legal basis for restoring Sec. 21.1043 to the Code of Federal 
Regulations in order to provide benefits under the Vietnam Era GI Bill. 
The statutory provisions governing the Vietnam Era GI Bill are found in 
38 U.S.C. chapter 34. Section 3462(e) states, ``No educational 
assistance shall be afforded any eligible veterans under this chapter 
or chapter 36 of this title after December 31, 1989.'' Thus, if a 
Vietnam Era veteran who was unable to pursue a program of education 
under the Vietnam Era GI Bill due to a physical or mental disability, 
recovered from the disability to the point where he or she would be 
able to pursue that program in 1997, VA would be prohibited by 38 
U.S.C. 3462(e) from paying educational assistance to that veteran.
    Accordingly, based on the rationale set forth in the proposed rule 
document, we are adopting the provisions of the proposed rule as a 
final rule.

Paperwork Reduction Act of 1995

    Information collection and recordkeeping requirements associated 
with this final rule (38 CFR 21.3047) have been approved by OMB under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3520) and 
have been assigned OMB control number 2900-0573. The regulation 
requires that a spouse or surviving spouse who wants an extension of 
the applicable time limit to use educational assistance provided under 
DEA must apply for it. Since VA would consider any communication from 
such an individual seeking this extension to be an application, there 
are no corresponding form numbers.
    VA is not authorized to impose a penalty on persons for failure to 
comply with information collection requirements which do not display a 
current OMB control number, if required.
    The Secretary of Veterans Affairs hereby certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This final rule affects only 
individuals. Pursuant to 5 U.S.C. 605(b), this final rule, therefore, 
is exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

(The Catalog of Federal Domestic Assistance number for the program 
affected by this proposed rule is 64.117)

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs--education, Grant programs--veterans, Health 
care, Loan programs--education, Loan programs-veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Approved: August 28, 1997.
Hershel W. Gober,
Acting Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR part 21 (subparts 
C and F) is amended as set forth below.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart C--Survivors' and Dependents' Educational Assistance Under 
38 U.S.C. Chapter 35

    1. The authority citation for subpart C continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), 512, 3500-3566, unless otherwise 
noted.

    2. In Sec. 21.3021, paragraph (l) is redesignated as paragraph (m); 
and new paragraph (l) is added, to read as follows:


Sec. 21.3021  Definitions.

* * * * *
    (l) Disabling effects of chronic alcoholism. (1) The term disabling 
effects of chronic alcoholism means alcohol-induced physical or mental 
disorders or both, such as habitual intoxication, withdrawal, delirium, 
amnesia, dementia, and other like manifestations of chronic alcoholism 
which in the particular case:
    (i) Have been medically diagnosed as manifestations of alcohol 
dependency or chronic alcohol abuse; and
    (ii) Are determined to have prevented commencement or completion of 
the affected individual's chosen program of education.
    (2) A diagnosis of alcoholism, chronic alcoholism, alcohol-
dependency, chronic alcohol abuse, etc., in and of itself, does not 
satisfy the definition of this term.
    (3) Injury sustained by an eligible spouse or surviving spouse as a 
proximate and immediate result of activity undertaken by the eligible 
spouse or surviving spouse while physically or mentally unqualified to 
do so due to alcoholic intoxication is not considered a disabling 
effect of chronic alcoholism.

(Authority: 38 U.S.C. 105, 3512(b))
* * * * *
    3. In Sec. 21.3046, paragraph (e) is removed.
    4. Section 21.3047 is added, to read as follows:


Sec. 21.3047  Extended period of eligibility due to physical or mental 
disability.

    (a) General. (1) An eligible spouse or surviving spouse shall be 
granted an extension of the applicable period of eligibility as 
otherwise determined by Sec. 21.3046 provided the eligible spouse or 
surviving spouse:
    (i) Applies for the extension within the appropriate time limit;
    (ii) Was prevented from initiating or completing the chosen program 
of education within the otherwise applicable period of eligibility 
because of a physical or mental disability that did not result from the 
willful misconduct of the eligible spouse or surviving spouse;
    (iii) Provides VA with any requested evidence tending to show that 
the requirement of paragraph (a)(1)(ii) of this section has been met; 
and
    (iv) Is otherwise eligible for payment of educational assistance 
for the training pursuant to 38 U.S.C. chapter 35.
    (2) In determining whether the eligible spouse or surviving spouse 
was prevented from initiating or completing the chosen program of 
education because of a physical or mental disability, VA will consider 
the following:
    (i) It must be clearly established by medical evidence that such a 
program of education was medically infeasible.
    (ii) An eligible spouse or surviving spouse who is disabled for a 
period of 30 days or less will not be considered as having been 
prevented from initiating or completing a chosen program, unless

[[Page 51785]]

the evidence establishes that the eligible spouse or surviving spouse 
was prevented from enrolling or reenrolling in the chosen program of 
education, or was forced to discontinue attendance, because of the 
short disability.
    (iii) VA will not consider the disabling effects of chronic 
alcoholism to be the result of willful misconduct and will consider 
those disabling effects as physical or mental disabilities.
    (b) Commencing date. The eligible spouse or surviving spouse shall 
elect the commencing date of an extended period of eligibility. The 
date chosen--
    (1) Must be on or after the original date of expiration of 
eligibility as determined by Sec. 21.3046(c); and
    (2) Must be on or before the ninetieth day following the date on 
which the eligible spouse's or surviving spouse's application for an 
extension was approved by VA, if the eligible spouse or surviving 
spouse is training during the extended period of eligibility in a 
course not organized on a term, quarter, or semester basis; or
    (3) Must be on or before the first ordinary term, quarter, or 
semester following the ninetieth day after the eligible spouse's or 
surviving spouse's application for an extension was approved by VA if 
the eligible spouse or surviving spouse is training during the extended 
period of eligibility in a course organized on a term, quarter, or 
semester basis.

(Authority: 38 U.S.C. 3512(b))

    (c) Length of extended periods of eligibility. An eligible spouse's 
or surviving spouse's extended period of eligibility shall be for the 
length of time that the individual was prevented from initiating or 
completing his or her chosen program of education. This shall be 
determined as follows:
    (1) If the eligible spouse or surviving spouse is in training in a 
course organized on a term, quarter, or semester basis, his or her 
extended period of eligibility shall contain the same number of days as 
the number of days from the date during the eligible spouse's or 
surviving spouse's original period of eligibility that his or her 
training became medically infeasible to the earliest of the following 
dates:
    (i) The commencing date of the ordinary term, quarter, or semester 
following the day the eligible spouse's or surviving spouse's training 
became medically feasible;
    (ii) The ending date of the eligible spouse's or surviving spouse's 
period of eligibility as determined by Sec. 21.3046(c); or
    (iii) The date the eligible spouse or surviving spouse resumed 
training.
    (2) If the eligible spouse or surviving spouse is training in a 
course not organized on a term, quarter, or semester basis, his or her 
extended period of eligibility shall contain the same number of days 
from the date during the eligible spouse's or surviving spouse's 
original period of eligibility that his or her training became 
medically infeasible to the earlier of the following dates:
    (i) The date the eligible spouse's or surviving spouse's training 
became medically feasible; or
    (ii) The ending date of the eligible spouse's or surviving spouse's 
period of eligibility as determined by Sec. 21.3046.

(Paperwork requirements were approved by the Office of Management 
and Budget under control number 2900-0573)

(Authority: 38 U.S.C. 3512(b))

Subpart F--Education Loans

    5. The authority citation for subpart F continues to read as 
follows:

    Authority: 38 U.S.C. 501, 3537, 3698, 3699, unless otherwise 
noted.

    6. In Sec. 21.4501, paragraph (b)(1) is amended by removing ``(d)'' 
and adding, in its place, ``(d), or Sec. 21.3047''; paragraph 
(b)(2)(iv) is amended by removing ``(d)'' and adding, in its place, 
``(d), or Sec. 21.3047''; paragraph (b)(2)(v)(A) is amended by removing 
``(d)'' and adding, in its place, ``(d), or Sec. 21.3047''; paragraph 
(b)(2)(v)(B) is amended by removing ``(d)'' and adding, in its place, 
``(d), or Sec. 21.3047'', paragraph (c)(1) is amended by removing 
``(d)'' and adding, in its place ``(d), or Sec. 21.3047''; and 
paragraph (c)(3) is amended by removing ``(d)'' and adding, in its 
place, ``(d), or Sec. 21.3047''.

[FR Doc. 97-26253 Filed 10-2-97; 8:45 am]
BILLING CODE 8320-01-P