[Federal Register Volume 65, Number 46 (Wednesday, March 8, 2000)]
[Rules and Regulations]
[Pages 12116-12117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5571]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ54


Child; Educational Institution

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations concerning the definition of a child for 
purposes of establishing entitlement to additional monetary benefits 
for a dependent. The amendments are necessary to clarify the definition 
of a child for VA purposes and to bring the regulations into 
conformance with the governing statutes as interpreted by VA's General 
Counsel. This document also makes non-substantive changes for purposes 
of clarity.

DATES: Effective Date: March 8, 2000.

FOR FURTHER INFORMATION CONTACT: Warren M. Jones, Consultant, 
Regulations Staff, Compensation and Pension Service, Veterans Benefits 
Administration, 810 Vermont Avenue, NW, Washington, DC 20420, telephone 
(202) 273-7167.

SUPPLEMENTARY INFORMATION: A veteran who is entitled to compensation 
under the provisions of 38 U.S.C. 1114 or 1134 is also entitled, under 
certain circumstances, to additional compensation for dependents, 
including a child. A veteran who is entitled to pension under the 
provisions of 38 U.S.C. 1521 is entitled to a higher annual rate of 
pension because of dependents, including a child. Dependency and 
indemnity compensation and death pension are also monetary benefits 
affected by the number of the surviving spouse's dependent children, 
who, under certain circumstances, may be entitled to these benefits in 
their own right.
    A ``child'' is defined in 38 U.S.C. 101(4)(A)(iii) to include a 
person who is unmarried, and after attaining the age of eighteen years 
and until completion of education or training (but not after attaining 
the age of twenty-three years) is pursuing a course of instruction at 
an approved educational institution. The implementing regulation is at 
38 CFR 3.57(a)(1)(iii).
    Section 104(a) of title 38, United States Code, provides that for 
the purpose of determining whether or not benefits are payable (except 
those under chapter 35, title 38, United States Code) for a child over 
the age of eighteen and under the age of twenty-three years who is 
attending a school, college, academy, seminary, technical institute, 
university, or other educational institution, the Secretary may approve 
or disapprove such educational institutions.
    In a precedent opinion dated March 19, 1998 (VAOPGCPREC 3-98), VA's 
General Counsel held that the term ``educational institution'' should 
be interpreted as including only institutions which are similar in type 
to the institutions specifically enumerated in 38 U.S.C. 104(a). 
According to the General Counsel, a home-school program differs from 
those institutions because the home-school program is not offered to a 
number of students, but rather is created to serve the needs of a 
particular student. Also, a home-school is not a permanent organization 
but rather disbands at completion of the student's program or 
withdrawal of the student. The General Counsel concluded, therefore, 
that a person who is receiving instruction in a home-school program is 
not pursuing a course of instruction at an educational institution and 
therefore does not qualify as a child within the meaning of 38 U.S.C. 
101(4)(A)(iii). This document amends 38 CFR 3.57(a)(1)(iii) 
accordingly. This document also amends 38 CFR 3.667 to use statutory 
terminology and to make clarifying changes.
    This final rule interprets statutory provisions and makes non-
substantive changes. Accordingly, there is a basis under 5 U.S.C. 553 
to dispense with prior notice and comment and a delayed effective date.
    Because no notice of proposed rulemaking was required in connection 
with the adoption of this final rule, no regulatory flexibility 
analysis is required under the Regulatory Flexibility Act (5 U.S.C. 
601-612). Even so, the Secretary 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.
    The Catalog of Federal Domestic Assistance program numbers are 
64.104, 64.105, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: February 29, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR part 3 is amended 
as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. In Sec. 3.57, paragraph (a)(1)(iii) is revised to read as 
follows:


Sec. 3.57  Child.

    (a) * * *
    (1) * * *
    (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))
* * * * *


Sec. 3.667  [Amended]

    3. Section 3.667 is amended by removing ``approved school'' and 
``approved course of instruction'' wherever they appear and adding, in 
their place, ``approved educational institution''.
    4. Section 3.667 is further amended as follows:
    a. Paragraphs (a)(2) and (a)(4) are amended by removing ``based 
upon a course which'' and adding, in its place, ``based upon a course 
of instruction at an approved educational institution which'';
    b. The first sentence of paragraph (b) is amended by removing 
``attending

[[Page 12117]]

school'' and adding, in its place, ``attending an approved educational 
institution''; and
    c. The last sentence of paragraph (a)(5) and paragraph (d) are 
revised to read as follows:


Sec. 3.667  School attendance.

    (a) * * *
    (5) * * * 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.
* * * * *
    (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.
* * * * *
[FR Doc. 00-5571 Filed 3-7-00; 8:45 am]
BILLING CODE 8320-01-P