[Federal Register Volume 71, Number 182 (Wednesday, September 20, 2006)]
[Proposed Rules]
[Pages 55052-55074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7759]



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Part II





Department of Veterans Affairs





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38 CFR Part 5



Dependents and Survivors; Proposed Rule

  Federal Register / Vol. 71, No. 182 / Wednesday, September 20, 2006 / 
Proposed Rules  

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AL94


Dependents and Survivors

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to reorganize 
and rewrite in plain language general provisions applicable to its 
compensation and pension regulations, including those relating to 
dependents and survivors of veterans and other VA claimants and 
beneficiaries. These revisions are proposed as part of VA's rewrite and 
reorganization of all of its compensation and pension rules in a 
logical, claimant-focused, and user-friendly format. The intended 
effect of the proposed revisions is to assist claimants and VA 
personnel in locating and understanding these provisions.

DATES: Comments must be received by VA on or before November 20, 2006.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AL94--Dependents and Survivors.'' Copies of comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 273-9515 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Bob White, Acting Chief, Regulations 
Rewrite Project (00REG2), Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420, (202) 273-9515.

SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has 
established an Office of Regulation Policy and Management to provide 
centralized management and coordination of VA's rulemaking process. One 
of the major functions of this office is to oversee a Regulation 
Rewrite Project (the Project) to improve the clarity and consistency of 
existing VA regulations. The Project responds to a recommendation made 
in the October 2001 ``VA Claims Processing Task Force: Report to the 
Secretary of Veterans Affairs.'' The Task Force recommended that the 
compensation and pension regulations be rewritten and reorganized in 
order to improve VA's claims adjudication process. Therefore, the 
Project began its efforts by reviewing, reorganizing and redrafting the 
content of the regulations in 38 CFR part 3 governing the compensation 
and pension program of the Veterans Benefits Administration. These 
regulations are among the most difficult VA regulations for readers to 
understand and apply.
    Once rewritten, the proposed regulations will be published in 
several portions for public review and comment. This is one such 
portion. It includes proposed rules regarding dependents in general; 
the effect of dependency changes on benefits; and surviving spouse, 
child and parent status. After review and consideration of public 
comments, final versions of these proposed regulations will ultimately 
be published in a new part 5 in 38 CFR.

Outline

Overview of New Part 5 Organization
Overview of Proposed Subpart D Organization
Table Comparing Current Part 3 Rules With Proposed Part 5 Rules
Content of Proposed Regulations

General Dependency Provisions

5.180 Evidence of dependency--award of, or an increase in, VA 
benefits
5.181 Evidence of dependency--reduction or discontinuance of VA 
benefits
5.182 Beneficiary's responsibility to report changes in status of 
dependents
5.183 Effective date for additional benefits based on the existence 
of a dependent
5.184 Effective date of reduction or discontinuance of VA benefits 
due to the death of a beneficiary's dependent
5.1850-5.189 [Reserved]

Marriage, Divorce, and Annulment

5.190 Status as a spouse
5.191 Marriages VA recognizes as valid
5.192 Evidence of marriage
5.193 Proof of marriage termination where evidence is in conflict or 
termination is protested
5.194 Acceptance of divorce decrees
5.195 Void marriages
5.196 Evidence of void or annulled marriages
5.197 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due 
to marriage or remarriage
5.198 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due 
to divorce or annulment
5.199 [Reserved]

Surviving Spouse Status

5.200 Status as a surviving spouse
5.201 Surviving spouse status based on a deemed-valid marriage
5.202 Effect of Federal court decisions on remarriage determinations
5.203 Effect of remarriage on a surviving spouse's benefits
5.204 Effective date of discontinuance of VA benefits to a surviving 
spouse who holds himself, or herself, out as the spouse of another 
person
5.205 Effective date of resumption of benefits to a surviving spouse 
due to termination of a remarriage
5.206 Effective date of resumption of benefits to a surviving spouse 
who stops holding himself, or herself, out as the spouse of another 
5.207-5.219 [Reserved]

Child Status

5.220 Status as a child for VA benefit purposes
5.221 Evidence to establish a parent-natural child relationship
5.222 Adoption arrangements recognized by VA
5.223 Child adopted after a veteran's death recognized as the 
veteran's child
5.224 Child status despite adoption out of a veteran's family
5.225 Child status based on adoption into a veteran's family under 
foreign law
5.226 Child status based on being a veteran's stepchild
5.227 Child status based on permanent incapacity for self-support
5.228 Exceptions applicable to termination of child status based on 
marriage of the child
5.229 Proof of age and birth
5.230 Effective date of award of pension or dependency and indemnity 
compensation to, or based on the existence of, a child born after 
the veteran's death
5.231 Effective date of reduction or discontinuance--child reaches 
age 18 or 23
5.232 Effective date of reduction or discontinuance--terminated 
adoptions
5.233 Effective date of reduction or discontinuance--stepchild no 
longer a member of the veteran's household
5.234 Effective date of an award, reduction, or discontinuance of 
benefits based on child status due to permanent incapacity for self-
support
5.235 Effective date of an award of benefits due to termination of a 
child's marriage
5.236-5.239 [Reserved]

Parent Status

5.240 Status as a veteran's parent
5.241-5.249 [Reserved]
Note Concerning Sec.  3.503(a)(2)
Note Concerning Sec.  3.400(w)
Endnote Regarding Amendatory Language
Paperwork Reduction Act
Regulatory Flexibility Act
Executive Order 12866
Unfunded Mandates

[[Page 55053]]

Catalog of Federal Domestic Assistance Numbers
List of Subjects in 38 CFR Part 5

Overview of New Part 5 Organization

    We plan to organize the part 5 regulations so that all provisions 
governing a specific benefit are located in the same subpart, with 
general provisions pertaining to all compensation and pension benefits 
also grouped together. We believe this organization will allow 
claimants, beneficiaries, and their representatives, as well as VA 
personnel, to find information relating to a specific benefit more 
quickly than the organization provided in current part 3.
    The first major subdivision would be ``Subpart A--General 
Provisions.'' It would include information regarding the scope of the 
regulations in new part 5, general definitions and general policy 
provisions for this part. This subpart was published as proposed on 
March 31, 2006. See 71 FR 16464.
    ``Subpart B--Service Requirements for Veterans'' would include 
information regarding a veteran's military service, including the 
minimum service requirement, types of service, periods of war, and 
service evidence requirements. This subpart was published as proposed 
on January 30, 2004. See 69 FR 4820.
    ``Subpart C--Adjudicative Process, General'' would inform readers 
about claims and benefit application filing procedures, VA's duties, 
rights and responsibilities of claimants and beneficiaries, general 
evidence requirements, and general effective dates for new awards, as 
well as revision of decisions and protection of VA ratings. This 
subpart will be published as three separate Notices of Proposed 
Rulemaking (NPRM)s due to its size. The first, concerning the duties of 
VA and the rights and responsibilities of claimants and beneficiaries, 
was published as proposed on May 10, 2005. See 70 FR 24680.
    ``Subpart D--Dependents and Survivors'' would inform readers how VA 
determines whether an individual is a dependent or a survivor for 
purposes of determining eligibility for VA benefits. It would also 
provide the evidence requirements for these determinations. This 
subpart is the subject of this document.
    ``Subpart E--Claims for Service Connection and Disability 
Compensation'' would define service-connected disability compensation 
and service connection, including direct and secondary service 
connection. This subpart would inform readers how VA determines service 
connection and entitlement to disability compensation. The subpart 
would also contain those provisions governing presumptions related to 
service connection, rating principles, and effective dates, as well as 
several special ratings. This subpart will be published as three 
separate NPRMs due to its size. The first, concerning presumptions 
related to service connection, was published as proposed on July 27, 
2004. See 69 FR 44614.
    ``Subpart F--Nonservice-Connected Disability Pensions and Death 
Pensions'' would include information regarding the three types of 
nonservice-connected pension: Improved Pension, Old-Law Pension, and 
Section 306 Pension. This subpart would also include those provisions 
that state how to establish entitlement to Improved Pension, and the 
effective dates governing each pension. This subpart will be published 
as two separate NPRMs due to its size. The portion concerning Old-Law 
Pension, Section 306 Pension, and elections of Improved Pension was 
published as proposed on December 27, 2004. See 69 FR 77578.
    ``Subpart G--Dependency and Indemnity Compensation, Death 
Compensation, Accrued Benefits, and Special Rules Applicable Upon Death 
of a Beneficiary'' would contain regulations governing claims for 
dependency and indemnity compensation (DIC); death compensation; 
accrued benefits; benefits awarded, but unpaid at death; and various 
special rules that apply to the disposition of VA benefits, or proceeds 
of VA benefits, when a beneficiary dies. This subpart would also 
include related definitions, effective-date rules, and rate-of-payment 
rules. This subpart will be published as two separate NPRMs due to its 
size. The portion concerning accrued benefits, special rules applicable 
upon the death of a beneficiary, and several effective-date rules, was 
published as proposed on October 1, 2004. See 69 FR 59072. The portion 
concerning DIC benefits and general provisions relating to proof of 
death and service-connected cause of death was published as proposed on 
October 21, 2005. See 70 FR 61326.
    ``Subpart H--Special and Ancillary Benefits for Veterans, 
Dependents, and Survivors'' would pertain to special and ancillary 
benefits available, including benefits for children with various birth 
defects.
    ``Subpart I--Benefits for Certain Filipino Veterans and Survivors'' 
would pertain to the various benefits available to Filipino veterans 
and their survivors.
    ``Subpart J--Burial Benefits'' would pertain to burial allowances.
    ``Subpart K--Matters Affecting the Receipt of Benefits'' would 
contain provisions regarding bars to benefits, forfeiture of benefits, 
and renouncement of benefits. This subpart was published as proposed on 
May 31, 2006. See 71 FR 31062.
    ``Subpart L--Payments and Adjustments to Payments'' would include 
general rate-setting rules, several adjustment and resumption 
regulations, and election-of-benefit rules. Because of its size, 
proposed regulations in subpart L will be published in two separate 
NPRMs.
    The final subpart, ``Subpart M--Apportionments and Payments to 
Fiduciaries and Incarcerated Beneficiaries,'' would include regulations 
governing apportionments, benefits for incarcerated beneficiaries, and 
guardianship.
    Some of the regulations in this NPRM cross-reference other 
compensation and pension regulations. If those regulations have been 
published in this or earlier NPRMs for the Project, we cite the 
proposed part 5 section. We also include, in the relevant portion of 
the Supplementary Information, the Federal Register page where a 
proposed part 5 section published in an earlier NPRM may be found. 
However, where a regulation proposed in this NPRM would cross-reference 
a proposed part 5 regulation that has not yet been published, we cite 
to the current part 3 regulation that deals with the same subject 
matter. The current part 3 section we cite may differ from its eventual 
part 5 counterpart in some respects, but we believe this method will 
assist readers in understanding these proposed regulations where no 
part 5 counterpart has yet been published. If there is no part 3 
counterpart to a proposed part 5 regulation that has not yet been 
published, we have inserted ``[regulation that will be published in a 
future Notice of Proposed Rulemaking]'' where the part 5 regulation 
citation would be placed.
    Because of its large size, proposed part 5 will be published in a 
number of NPRMs, such as this one. VA will not adopt any portion of 
part 5 as final until all of the NPRMs have been published for public 
comment.
    In connection with this rulemaking, VA will accept comments 
relating to a prior rulemaking issued as a part of the Project, if the 
matter being commented on relates to both NPRMs.

Overview of Proposed Subpart D Organization

    This NPRM pertains to regulations governing dependents and 
survivors of

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veterans and of other claimants and beneficiaries. These regulations 
would be contained in proposed Subpart D of new 38 CFR part 5. Although 
these regulations have been substantially restructured and rewritten 
for greater clarity and ease of use, most of the basic concepts 
contained in these proposed regulations are the same as in their 
existing counterparts in 38 CFR part 3. However, a few substantive 
changes are proposed.

Table Comparing Current Part 3 Rules With Proposed Part 5 Rules

    The following table shows the relationship between the current 
regulations in part 3 and the proposed regulations contained in this 
NPRM:

------------------------------------------------------------------------
                                            Based in whole or in part on
   Proposed part 5 section or paragraph       38 CFR part 3 section or
                                                      paragraph
------------------------------------------------------------------------
5.180(a)..................................  3.213, 1st sentence.
5.180(b)..................................  3.204(a)(1).
5.180(c)..................................  3.204(a)(2).
5.180(d)..................................  3.204(b).
5.180(e)..................................  3.204(c).
5.181(a)..................................  New.
5.181(b)..................................  3.213(a) and (c).
5.181(c)..................................  3.213(b).
5.182.....................................  New and 3.213(a), 3.277(b),
                                             and 3.660(a)(1).
5.183(a)..................................  3.401(b)(1)(ii) and
                                             3.660(c), second sentence.
5.183(b)(1)...............................  3.401(b)(1)(i), 3.403(a)(5),
                                             3.660(c) first sentence.
5.183(b)(2)...............................  3.401(b)(3).
5.183(b)(3)...............................  3.401(b)(4).
5.183(c)..................................  3.401(b)(2).
5.184.....................................  3.500(g)(2)(ii) and
                                             3.660(a)(2), last sentence.
5.190.....................................  3.50(a).
5.191.....................................  3.1(j).
5.192(a)..................................  New.
5.192(b)..................................  3.205(b).
5.192(c), except for (c)(6)(i)............  3.205(a).
5.192(c)(6)(i)............................  New.
5.193.....................................  3.205(b), last sentence.
5.194(a)..................................  First sentence of 3.206.
5.194(b)(1) and (2).......................  3.206(a).
5.194(b)(3)...............................  New.
5.194(c)(1)...............................  3.206(b).
5.194(c)(2)...............................  3.206(c).
5.195.....................................  New.
5.196(a)..................................  3.207(a).
5.196(b)..................................  3.207(b).
5.197(a)..................................  New.
5.197(b)(1)...............................  3.500(n)(1).
5.197(b)(2)...............................  3.500(n)(2)(ii).
5.198(a)..................................  New.
5.198(b)..................................  3.501(d)(2).
5.200(a)..................................  3.50(b).
5.200(b)(1)(i)............................  3.53(a), first sentence.
5.200(b)(1)(ii)...........................  New.
5.200(b)(2)...............................  3.53(b), second sentence.
5.200(b)(3)...............................  3.53(a), second sentence.
5.200(b)(4)...............................  3.53(b), first sentence.
5.200(b)(5)...............................  3.53(b), last sentence.
5.201(a)..................................  Introduction to 3.52.
5.201(b)..................................  3.52(a).
5.201(c), introduction....................  3.52(b).
5.201(c)(1) and (2).......................  New.
5.201(c)(3)...............................  3.205(c).
5.201(d)..................................  3.52(c).
5.201(e)..................................  3.52(d).
5.202(a)..................................  3.214.
5.202(b)..................................  New.
5.203(a)..................................  New.
5.203(b)..................................  3.55(a)(1).
5.203(c)(1) through 3.....................  3.55(a)(2).
5.203(c)(4)...............................  3.55(a)(5) and (a)(8),
                                             3.215.
5.203(d)(1), introduction, (i) and (ii)...  3.55(a)(3).
5.203(d)(1)(iii)..........................  3.55(a)(6).
5.203(d)(2)...............................  3.55(a)(3).
5.203(e)..................................  New.
5.204.....................................  3.500(n)(3).
5.205(a)..................................  3.400(v)(1).
5.205(b)..................................  3.400(v)(2).
5.205(c)..................................  3.400(v)(4).
5.205(d)..................................  3.400(v)(3).
5.206.....................................  3.400(w) .
5.220, except for 5.220(b)(2)(i)..........  3.57(a).
5.220(b)(2)(i)............................  3.57(a)(1)(ii) and first
                                             sentence of 3.356(b).
5.221.....................................  3.210(a) and (b).
5.222(a)..................................  New.
5.222(b)(1), (3), and (4).................  Introduction to 3.57(c),
                                             introduction to 3.210(c).
5.222(b)(2)...............................  Introduction to 3.210(c)(1)
                                             and 3.210(c)(1)(i).
5.223(a)..................................  3.57(c)(1) through (3).
5.223(b)..................................  3.210(c)(2).
5.224(a)..................................  3.58.
5.224(b)..................................  Introduction to 3.210(c)(1)
                                             and 3.210(c)(1)(ii).
5.225(a)..................................  3.57(e)(1).
5.225(b)(1)...............................  3.57(e)(2).
5.225(b)(2)...............................  3.57(e)(4).
5.225(c)..................................  New.
5.225(d)..................................  3.57(e)(3).
5.226(a) and (b)..........................  3.57(b) and 3.210(d).
5.226(c) and (d)..........................  New.
5.227(a)..................................  3.356(a).
5.227(b)(1)(i)............................  3.356(b)(1).
5.227(b)(1)(ii)...........................  3.356(b)(2), last sentence.
5.227(b)(1)(iii)..........................  3.356(b)(4).
5.227(b)(1)(iv)...........................  3.356(b)(3), last sentence.
5.227(b)(2)(i)............................  3.356(b)(3).
5.227(b)(2)(ii)...........................  3.356(b) introduction, third
                                             sentence.
5.227(c)(1)...............................  3.356(b)(3) and new.
5.227(c)(2)(i)............................  3.356(b) introduction,
                                             second sentence.
5.227(c)(2)(ii) and (iii).................  New.
5.227(d), except for (d)(3)...............  New.
5.227(d)(3)...............................  3.356(b)(2), first sentence.
5.228(a) and (b)..........................  New.
5.228(c)..................................  3.55(b).
5.229(a), introduction....................  3.204(b).
5.229(a)(1)...............................  3.209(a), first sentence.
5.229(a)(2)...............................  3.209(b), first sentence,
                                             and 3.209(g).
5.229(a)(3)...............................  3.209(c).
5.229(a)(4)...............................  3.209(d).
5.229(a)(5)...............................  3.209(e).
5.229(a)(6)...............................  3.209(f).
5.229(a)(7)...............................  3.209(g).
5.229(b)(1)...............................  3.209(a), last sentence.
5.229(b)(2)...............................  3.209(b), last sentence.
5.230.....................................  3.403(a)(3).
5.231.....................................  3.503(a)(1).
5.232.....................................  3.503(a)(10).
5.233.....................................  3.503(a)(6).
5.234(a)..................................  New.
5.234(b)..................................  3.403(a)(1).
5.234(c)(1)...............................  3.503(a)(3)(i).
5.234(c)(2)...............................  3.503(a)(3)(ii).
5.235(a)..................................  New.
5.235(b)..................................  3.400(u).
5.240(a)..................................  3.59(a) and the first
                                             sentence of (b).
5.240(b)..................................  New.
5.240(c)..................................  3.59(a), first sentence.
5.240(d)..................................  New.
5.240(e)(1) and (2)(i)....................  3.59(b), second and third
                                             sentences.
5.240(e)(2)(ii) and (f)...................  New.
------------------------------------------------------------------------

    Readers who use this table to compare existing regulatory 
provisions with the proposed provisions, and who observe a substantive 
difference between them, should consult the text that appears later in 
this document for an explanation of significant changes in each 
regulation. Not every paragraph of every current part 3 section 
regarding the subject matter of this rulemaking is accounted for in the 
table. In some instances, other portions of the part 3 sections that 
are addressed in these proposed regulations will appear in subparts of 
part 5 that are being published separately for public comment. For 
example, a reader might find a reference to paragraph (a) of a part 3 
section in the table, but no reference to paragraph (b) of that section 
because paragraph (b) will be addressed in a separate NPRM. The table 
also does not include provisions from part 3 regulations that will not 
be repeated in part 5. Such provisions are discussed

[[Page 55055]]

specifically under the appropriate part 5 heading in this preamble. 
Readers are invited to comment on the proposed part 5 provisions and 
also on our proposals to omit those part 3 provisions from part 5.

Content of Proposed Regulations

    A number of regulations in current part 3 refer to payment of 
various VA benefits to ``or for'' a veteran, a surviving spouse, or a 
child. The ``or for'' language is sometimes used as a shorthand way of 
indicating that a payment of benefits may be made to a fiduciary for a 
beneficiary. At other times, it refers to the fact that additional 
benefit payments may be made to a VA beneficiary based on the existence 
of a dependent (a dependent's allowance).
    We believe that use of ``or for'' in these contexts may be 
confusing to many regulation users and propose not to repeat it in part 
5. We propose not to include the ``or for'' qualifier in proposed 
regulations where the phrase refers to payments to a fiduciary on 
behalf of a beneficiary because it is unnecessary. Benefits are always 
potentially payable to a fiduciary on behalf of a beneficiary. We 
propose to replace the ``or for'' phrase with ``based on the existence 
of'' in situations where ``or for'' refers to payment of a dependent's 
allowance. We intend no substantive change by omission or replacement 
of the ``or for'' language.
    Some current part 3 regulations by their terms limit their 
application to dependents of veterans when, in fact, they may be 
applicable to dependents of VA claimants or beneficiaries who are not 
veterans. For a specific example, see the supplementary information 
concerning proposed Sec.  5.190 that appears later in this NPRM. 
Throughout this NPRM if a current regulation is too narrowly drawn in 
this way we have written its proposed part 5 counterpart to be more 
generally applicable.

General Dependency Provisions

5.180 Evidence of dependency--award of, or an increase in, VA benefits
    Proposed Sec.  5.180 provides rules for determining what evidence 
is required for a claimant to obtain VA benefits, or for a beneficiary 
to obtain additional VA benefits, based upon the existence of a 
dependent.
    Proposed Sec.  5.180(a), which explains the purpose of Sec.  5.180, 
includes the type of general information contained in the first 
sentence of current Sec.  3.213(a), but clarifies that the proposed 
section applies to claimants seeking new benefits based on the 
existence of a dependent as well as to beneficiaries seeking an 
increase in benefits based on the existence of a dependent. Proposed 
Sec.  5.180(b) is based on Sec.  3.204(a)(1), but clarifies that a 
statement submitted as proof of a relationship with another person must 
be in writing, as required by 38 U.S.C. 5124.
    Proposed Sec.  5.180(c) is based on current Sec.  3.204(a)(2), 
which describes circumstances where a statement alone is not sufficient 
proof of relationship. We propose to add, in Sec.  5.180(c)(1), that 
additional evidence is also required if the claimant's or beneficiary's 
statement does not contain all of the necessary information set out in 
Sec.  5.180(b).
5.181 Evidence of dependency--reduction or discontinuance of VA 
benefits
    Proposed Sec.  5.181 addresses evidence requirements for 
establishing that changes in the status of a dependent that could 
reduce or discontinue benefits have occurred. Generally, under Sec.  
5.181(b), VA would accept the beneficiary's report under proposed Sec.  
5.182 of a change in a dependent's status. However, VA would require 
more formal proof if it has information contradicting the statement. 
This is consistent with provisions of current Sec.  3.213(a) that state 
that a ``claimant or payee[`s]'' statement will be accepted ``in the 
absence of contradictory information'' and of Sec.  3.213(c) that state 
that VA will request formal proof of a change in dependency if it has 
reason to believe an event occurred earlier than reported.
    Proposed Sec.  5.181(c), derived from current Sec.  3.213(b), 
states that if the beneficiary's statement and any additional proof is 
not sufficient to establish the necessary facts, VA will reduce or 
discontinue the dependency benefit effective the first day of the month 
that follows the month for which VA last paid benefits. This proposed 
paragraph includes a wording change consistent with our proposal to 
clarify effective dates for reductions and discontinuances. Rather than 
saying VA will reduce or discontinue benefits ``effective the date of 
the last payment,'' we propose to state that VA will reduce or 
discontinue benefits effective ``the first day of the month that 
follows the month for which VA last paid benefits.'' Including this 
change in part 5 will provide beneficiaries with the actual date when 
VA will stop paying benefits or pay benefits at a reduced rate.
    Current Sec.  3.213(b) also includes procedures for VA to request a 
statement of the date of a change in dependency if the date of that 
change was not reported, together with various related procedures. We 
propose not to repeat those provisions in subpart D of part 5. Proposed 
part 5 includes notice procedures that come into play when VA proposes 
an adverse action concerning benefits. These procedures would, among 
other things, require VA to give a beneficiary whose benefits are 
reduced or discontinued under proposed Sec.  5.181(c) advance notice of 
the adverse action, and permit the beneficiary to request a hearing and 
to submit evidence concerning the matter. There are also provisions for 
restoring benefits following adverse action under some circumstances. 
See Sec.  5.83, ``Right to notice of decisions and proposed adverse 
actions'' (70 CFR 24680, 24687), and Sec.  5.84, ``Restoration of 
benefits following adverse action'' (70 CFR 24680, 24688). We believe 
that these provisions provide as much, if not more, protection to 
beneficiaries as the safeguards in Sec.  3.213(b) that would not be 
included in Sec.  5.181.
5.182 Beneficiary's responsibility to report changes in status of 
dependents
    Proposed Sec.  5.182 is new, although it is consistent with 
provisions found in current part 3 regulations (for example, see 
current Sec. Sec.  3.256(a), 3.277(b), and 3.660(a)).
    Proposed Sec.  5.182(a) states that the section is applicable to 
beneficiaries who are receiving additional compensation, dependency and 
indemnity compensation, or pension based on the existence of a 
dependent. Proposed Sec.  5.182(b) states the general rule that such a 
beneficiary must inform VA of the day, month, and year of a change in 
the status of a dependent that could reduce or discontinue the 
beneficiary's VA benefits when the beneficiary acquires knowledge of 
the change.
    Proposed Sec.  5.182(c) provides that only the month and year of 
the event need be reported if the change in the status of a dependent 
results from marriage, annulment of a marriage, divorce, death of a 
dependent, or discontinuance of school attendance by a person 
recognized by VA as a child on the basis of school attendance. VA does 
not need to know the specific day of those events, because under 38 
U.S.C. 5112(b)(2) and (7) the effective date of reduction or 
discontinuance of benefits based on those events is the last day of the 
month in which the event occurred.
    For the text of Sec.  5.104, cross-referenced at the end of 
proposed Sec.  5.182, see 70 FR 24680, 24691.

[[Page 55056]]

5.183 Effective date for additional benefits based on the existence of 
a dependent
    Proposed Sec.  5.183 is derived from current Sec.  3.401(b), which 
states the effective date to be assigned to the award of additional 
benefits based on the existence of a dependent. Proposed Sec.  
5.183(b)(1) adds information, based on current Sec.  3.403(a)(5), 
concerning how VA determines the date of adoptions for VA benefit 
purposes.
5.184 Effective date of reduction or discontinuance of VA benefits due 
to the death of a beneficiary's dependent
    Proposed Sec.  5.184 is based on current Sec.  3.500(g)(2)(ii) and 
applicable portions of the last sentence of Sec.  3.660(a)(2) with one 
change. Under current Sec.  3.500(g)(2)(ii), when a dependent dies, 
benefits (other than benefits under certain old pension programs) are 
reduced or discontinued ``the last day of the month in which death 
occurred.'' The same effective date is described in the last sentence 
of Sec.  3.660(a)(2) as ``the last day of the month in which dependency 
ceased.'' The underlying statute, 38 U.S.C. 5112(b)(2), uses ``the last 
day of the month in which such * * * death occurs.'' VA interprets 
these rules as providing that benefits are paid through the last day of 
the month of death, but not for the first day of the month following 
the month of death and thereafter. We believe that this is more clearly 
expressed by stating that ``VA will pay a reduced rate or discontinue 
benefits based on the death of a beneficiary's dependent effective the 
first day of the month that follows the month in which death 
occurred.'' This same change of language is proposed in Sec. Sec.  
5.197(b) and 5.198(b).
    We propose not to repeat in part 5 the language in current Sec.  
3.500(g)(2)(i) which refers to the effective date of reductions or 
discontinuances for the death of dependents who died before October 1, 
1982, because such cases are unlikely to come before VA at this point 
in time. Should such a case arise, it could be processed under the 
controlling statute.

Marriage, Divorce, and Annulment

5.190 Status as a spouse
    Proposed Sec.  5.190 defines the term ``spouse'' for VA purposes. 
Current Sec.  3.50(a) defines ``spouse'' as ``a person of the opposite 
sex whose marriage to the veteran meets the requirements of Sec.  
3.1(j).'' Proposed Sec.  5.190 omits the phrase ``to the veteran.'' The 
term ``spouse'' has broader application in terms of VA benefit 
determinations. For example, see Sec.  3.262(b)(1) concerning 
calculation of the income of a parent and the parent's spouse for 
purposes of income-tested VA benefits. We have also replaced the 
reference to Sec.  3.1(j) with a reference to its part 5 equivalent.
5.191 Marriages VA recognizes as valid
    Proposed Sec.  5.191 is derived from current Sec.  3.1(j) and 
addresses the marriages VA accepts as valid marriages for purposes of 
entitlement to VA benefits. We propose a change to make the proposed 
section state that a spouse must be a person of the opposite sex, 
consistent with long-standing VA practice and the requirements of 38 
U.S.C. 101(31).
5.192 Evidence of marriage
    Proposed Sec.  5.192, based on current Sec.  3.205(a) and (b), 
addresses evidence VA will accept as proof of marriage. We propose to 
add, in Sec.  5.192(c)(6)(i), that VA will accept as proof of marriage 
a copy of the State's acknowledgement of registration of the marriage 
in States where common-law marriages are recognized.
5.193 Proof of marriage termination where evidence is in conflict or 
termination is protested
    Proposed Sec.  5.193 is based on the last sentence of current 
3.205(b).
5.194 Acceptance of divorce decrees
    Proposed Sec.  5.194, derived from current Sec.  3.206, states the 
criteria VA uses for determining whether a divorce decree is valid for 
VA purposes.
    Section 3.206 says that VA will question the ``validity of a 
divorce decree regular on its face'' only if the validity is put into 
issue by a party to the divorce or by a person ``whose interest in a 
claim'' for VA benefits would be affected by the divorce decree's 
validity. We propose in Sec.  5.194(a)(1) to add the term ``(proper)'' 
after ``regular'' and to describe the latter person as one ``whose 
entitlement to VA benefits would be affected if VA recognizes the 
decree as valid.'' These changes are intended only as clarifications of 
VA's current interpretation of section 3.206 and not as substantive 
changes from the current rule.
    Both current Sec.  3.206 and proposed Sec.  5.194 use the term 
``bona fide domicile.'' According to Black's Law Dictionary, a 
``domicile'' is the ``true, fixed, principal and permanent home, to 
which [the] person intends to return and remain even though currently 
residing elsewhere.'' Black's Law Dictionary, 186 (8th ed. 2004). 
``Bona fide'' is simply Latin for ``in good faith.'' The ``bona fide 
domicile'' is, for most individuals, their permanent home. Therefore, 
we have included this description of bona fide domicile in proposed 
Sec.  5.194(b)(1) in order to clarify this technical term for the 
reader.
    Proposed Sec.  5.194(b) states the standards VA uses to determine 
whether a person is validly divorced if that person has not remarried. 
New proposed Sec.  5.194(b)(3) adds a requirement that VA be provided 
with the original divorce decree, a court-certified copy, or a court-
certified abstract of the original decree. This addition is necessary 
to insure that VA adjudicators have accurate information to assess a 
challenge to a divorce decree.
5.195 Void marriages
    Current part 3 includes references to ``void'' marriages (e.g., see 
Sec.  3.207(a)), but it does not explain the meaning of a ``void'' 
marriage. Proposed Sec.  5.195 would provide that a marriage is void if 
at least one party to the marriage did not meet the legal requirements 
for entering into the marriage at the time the marriage took place. For 
example, such an illegality would exist if one of the parties was 
already married, or if one or both parties failed to meet the minimum-
age requirement. We also propose to add a statement that VA determines 
whether a marriage was void in accordance with the law of the place 
that governs the marriage's validity, together with a cross reference 
to the regulation that identifies those places, Sec.  5.191, 
``Marriages VA recognizes as valid.''
5.196 Evidence of void or annulled marriages
    Proposed Sec.  5.196 is derived from current Sec.  3.207, the 
regulation that describes the evidence needed to prove that a marriage 
is void or has been annulled.
5.197 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due to 
marriage or remarriage
    Proposed Sec.  5.197 is based on current Sec.  3.500(n). However, 
we propose in Sec.  5.197(a) a new provision describing the scope of 
applicability of the effective date rules in Sec.  5.197.
    The last sentence of the introduction to Sec.  3.500 states that 
``[w]here an award is reduced, the reduced rate will be effective the 
day following the date of discontinuance of the greater benefit.'' 
However, the underlying statute, 38 U.S.C. 5112(b), applies to 
discontinuance of benefits as well as to reductions in benefits, and 
proposed

[[Page 55057]]

Sec.  5.197(b) is consistent with that approach.
    We propose not to include the language in current Sec.  
3.500(n)(2)(i) that refers to the effective date of reductions or 
discontinuances because of the marriage or remarriage of dependents 
that occurred before October 1, 1982. We believe that, with the passage 
of time, this provision is now unnecessary. It is very unlikely that VA 
would now retroactively reduce or discontinue an award based on a 
dependent's marriage or remarriage that occurred more than 20 years in 
the past. However, should such a case arise, it could be processed 
under the controlling statute.
    We have not included in proposed Sec.  5.197 the special effective 
date rule in Sec.  3.500(n)(ii) that applies to Old-Law and Section 306 
Pension because that topic is addressed in another proposed part 5 
regulation, Sec.  5.477, Effective dates for Section 306 and Old-Law 
Pension reductions or discontinuances. Rather, we have simply cross 
referenced Sec.  5.477 at the end of Sec.  5.197. For the text of 
proposed Sec.  5.477, see 70 FR 77578 at 77593.
5.198 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due to 
divorce or annulment
    Proposed Sec.  5.198 is based on current Sec.  3.501(d). Current 
Sec.  3.501(d) is, by its terms, only applicable to the reduction or 
discontinuance of a veteran's benefits due to divorce or annulment. 
However, the underlying statute (38 U.S.C. 5112(b)(2)) applies more 
broadly to reductions and discontinuances of benefits based on the 
divorce or annulment of the marriage of any beneficiary. We have 
broadened proposed Sec.  5.198 to conform with the statute and to make 
it clear that the proposed regulation applies to any beneficiary.
    Other differences between the proposed and current regulation are 
similar to those occurring in proposed Sec.  5.197. That is, the last 
sentence of the introduction to Sec.  3.501 is similar to the last 
sentence of the introduction to Sec.  3.500. The rule in proposed Sec.  
5.198 is also based on a paragraph of 38 U.S.C. 5112(b), and we 
therefore also propose to make Sec.  5.198 applicable to 
discontinuances as well as reductions. For the same reasons we propose 
in Sec.  5.197 not to include a rule applicable to marriage or 
remarriage of dependents that occurred before October 1, 1982, we 
propose not to repeat a rule in Sec.  3.501(d)(1) concerning divorces 
and annulments that occurred prior to October 1, 1982. Finally, 
consistent with the approach in proposed Sec.  5.197, we propose to 
simply cross reference Sec.  5.477 at the end of Sec.  5.198 rather 
than repeat a rule in Sec.  3.501(d)(2) applicable to Section 306 and 
Old-Law Pension cases.

Surviving Spouse Status

5.200 Status as a surviving spouse
    Proposed Sec.  5.200 is based on current Sec. Sec.  3.50(b) and 
3.53. New Sec.  5.200(b)(1)(ii) states that ``[i]n determining who was 
at fault in causing the separation, VA will consider the veteran's and 
the other person's conduct at the time the separation took place, but 
not conduct taking place after the separation.'' This rule is 
consistent with long-standing VA policy and with current Sec. Sec.  
3.50(b)(1) and 3.53, which focus on fault for marital separation. 
Events which occur later are not relevant to that assessment.
5.201 Surviving spouse status based on a deemed-valid marriage
    Proposed Sec.  5.201 is based on current Sec. Sec.  3.52 and 
3.205(c), except for new Sec.  5.201(c)(1) and (2).
    Current Sec.  3.52(b) requires, as a condition of VA deeming an 
invalid marriage valid, that the claimant have entered into the 
purported marriage without knowledge of a legal impediment that 
prevented formation of a valid marriage. VA does not consider knowledge 
of a legal impediment that a claimant acquires after the marriage to be 
relevant. We propose to add Sec.  5.201(c)(1) clarifying this point.
    Proposed new Sec.  5.201(c)(2) provides examples of legal 
impediments to marriage, namely one of the parties being underage, one 
of the parties having a prior undissolved marriage at the time of the 
attempted marriage, and, in a jurisdiction that does not recognize 
common-law marriages, the parties' failure to marry through a marriage 
ceremony. As to the latter, VA's General Counsel has interpreted the 
term ``legal impediment'' to include the lack of a marriage ceremony in 
those jurisdictions that do not recognize common-law marriages. See 
VAOPGCPREC 58-91, 56 FR 50149, October 3, 1991.
5.202 Effect of Federal court decisions on remarriage determinations
    Proposed Sec.  5.202 is derived from current Sec.  3.214. We 
propose to add a new provision in Sec.  5.202(b) stating that the 
provisions of this section do not apply to VA determinations regarding 
whether a surviving spouse has held himself or herself out openly to 
the public as the spouse of another person as described in Sec.  
5.200(a)(2). This change will clarify that the concept of holding 
oneself out to the public as a spouse of another is a separate and 
distinct concept from remarriage.
    Finally, we propose not to repeat the provisions of current Sec.  
3.214 stating that the section is effective July 15, 1958. We believe 
that statement of the effective date has been rendered unnecessary due 
to the passage of time. We know of no affected claims pending from 
before that date.
5.203 Effect of remarriage on a surviving spouse's benefits
    Proposed Sec.  5.203 contains provisions from current Sec. Sec.  
3.55 and 3.215, as well as certain new regulatory provisions described 
below.
    Proposed Sec.  5.203(a) is new; however, it is not a substantive 
change. It restates a part of the statutory definition of ``surviving 
spouse'' in 38 U.S.C. 101(3), which precludes surviving spouse status 
for someone who has remarried or (in cases not involving remarriage) 
has, ``since the death of the veteran, and after September 19, 1962, 
lived with another person and held himself or herself out openly to the 
public to be the spouse of such other person.''
    Proposed Sec.  5.203(c) pertains to reinstatement of eligibility 
for surviving spouses who, because of remarriage, may have been 
ineligible for benefits under law in effect before 1971, whose 
remarriages ended before November 1, 1990. Included in this provision 
is proposed Sec.  5.203(c)(4), which is a consolidation of rules in 
current Sec. Sec.  3.55(a)(5), 3.55(a)(8), and 3.215. Under current 
Sec.  3.215, benefits may be paid to a surviving spouse who stops 
living with another person and holding himself or herself out openly to 
the public as that person's spouse upon filing of an application and 
``satisfactory evidence.'' In order to clarify what evidence is 
satisfactory, we propose to replace the phrase ``satisfactory 
evidence'' with ``competent, credible evidence.'' The definition of 
``competent evidence'' will be proposed in a separate NPRM. 
``Credible'' evidence is just evidence that is believable. (``Credible 
testimony is that which is plausible or capable of being believed.'' 
Caluza v. Brown, 7 Vet. App. 498, 511 (1995)). We also propose to make 
a consistent change to a similar provision in proposed Sec.  
5.203(d)(1)(iii), which is based on current Sec.  3.55(a)(6).
    Proposed Sec.  5.203(d) is based on current Sec.  3.55(a)(3) and 
(6), which authorizes reinstatement of eligibility for dependency and 
indemnity compensation for surviving spouses who, because of 
remarriage, may have been ineligible for benefits under laws

[[Page 55058]]

in effect before June 9, 1998. Section 3.55(a)(3) and (6) refer to an 
effective date of October 1, 1998. Those references are derived from 
section 8207(b) of Public Law 105-178, 112 Stat. 495, which prohibits 
payment by reason of the amendments made by section 8207(a) for any 
month before October 1998. Proposed Sec.  5.203(d)(2) carries over that 
limitation. However, Sec.  5.203(d)'s caption refers to law in effect 
before June 9, 1998, which is the date Public Law 105-178, was enacted. 
The difference in the effective dates is because the Public Law was 
effective on June 9, 1998, the date of enactment, with a provision 
prohibiting payments for any period before October 1, 1998.
    Proposed new Sec.  5.203(e) would implement section 101 of the 
Veterans Benefits Act of 2003 (the Act) as it applies to eligibility 
for DIC. (Sec. 101, Pub. L. 108-183, 117 Stat. 2651, 2652 (Dec. 16, 
2003)). Under the Act, eligibility for DIC is extended to surviving 
spouses who remarry after December 15, 2003, and after they reach the 
age of 57.
    We propose not to include a provision contained in section 101(e) 
of the Act in Sec.  5.203 because the time to take advantage of that 
provision has now passed. Section 101(e) provides a special period 
during which a surviving spouse who had remarried after age 57, but 
before December 16, 2003 (the date of enactment of the Act), could 
apply for DIC. This category of surviving spouses must have filed an 
application for such benefits before December 16, 2004. We are not 
including this category of eligible beneficiaries in proposed Sec.  
5.203 because the period for filing a claim under those circumstances 
has already closed. VA would award benefits to those who qualify under 
section 101(e) under the authority of the statute, so this omission 
will not result in any loss of benefits to eligible claimants.
    We have not included in proposed Sec.  5.203 two provisions in 
current Sec.  3.55, Sec.  3.55(a)(4) and (a)(7). These provisions 
concern eligibility for certain medical care, educational assistance, 
and housing loans. As its title indicates, proposed part 5 deals with 
compensation, pension, burial and related benefits. Medical care, 
education, and housing loans are the subjects of other parts of title 
38 of the Code of Federal Regulations. For the same reason, we have not 
included provisions of section 101 of the Veterans Benefits Act of 2003 
concerning eligibility for educational assistance under 38 U.S.C. 
chapter 35 and housing loans under 38 U.S.C. chapter 37 for surviving 
spouses who remarry after reaching age 57.
    Finally, we note that the authority citation for current Sec.  
3.55(a)(3) and (a)(6) is 38 U.S.C. 1311(e). However, section 502 of 
Public Law 106-117, 113 Stat. 1545, 1574 (Nov. 30, 1999), deleted 38 
U.S.C. 1311(e) and moved those provisions to 38 U.S.C. 103(d). 
Therefore, we have updated this authority citation where applicable.
5.204 Effective date of discontinuance of VA benefits to a surviving 
spouse who holds himself, or herself, out as the spouse of another 
person
    Proposed Sec.  5.204 is derived from current Sec.  3.500(n)(3). As 
with other proposed part 5 regulations concerning discontinuances, we 
propose to express the effective date in terms of the first day that 
benefits are stopped, rather than in terms of the last day for which 
benefits are paid. We intend no substantive change. We are also 
correcting the authority citation for Sec.  3.500(n)(3).
5.205 Effective date of resumption of benefits to a surviving spouse 
due to termination of a remarriage
    Proposed Sec.  5.205 addresses the effective dates for the award of 
benefits to surviving spouses who are eligible for the restoration of 
benefits due to the termination of a remarriage. The proposed 
regulation is derived from current Sec.  3.400(v). We propose not to 
repeat a provision in current Sec.  3.400(v)(3) and (4). Those 
paragraphs specify that benefits are not payable unless the 
requirements for termination of a remarriage through death or divorce 
are met. We consider it unnecessary to specify that in proposed Sec.  
5.205 because a resumption of benefits would not be in order unless the 
termination of remarriage satisfied all applicable criteria.
5.206 Effective date of resumption of benefits to a surviving spouse 
who stops holding himself, or herself, out as the spouse of another
    Proposed Sec.  5.206 updates an effective date rule in current 
Sec.  3.400(w) that was based on former 38 U.S.C. 5110(m). That statute 
stated that ``[t]he effective date of an award of benefits to a 
surviving spouse based upon termination of actions described in section 
103(d)(3) of this title shall not be earlier than the date of receipt 
of application therefor filed after termination of such actions and 
after December 31, 1970.'' The ``actions described in section 103(d)(3) 
of this title'' are ``living with another person and holding himself or 
herself out openly to the public as that person's spouse.''
    Congress repealed subsection (m) of 38 U.S.C. 5110 in section 
1201(i)(8) of Public Law 103-446, the ``Veterans' Benefits Improvements 
Act of 1994,'' and does not appear to have enacted a specific 
substitute effective date provision. Consequently, the default 
effective date provision stated in 38 U.S.C. 5110(a) would apply. Under 
38 U.S.C. 5110(a), ``the effective date of an award based on an 
original claim, a claim reopened after final adjudication, or a claim 
for increase, of compensation, dependency and indemnity compensation, 
or pension, shall be fixed in accordance with the facts found, but 
shall not be earlier than the date of receipt of application 
therefor.'' In line with 38 U.S.C. 103(d)(3) and 5110(a), we propose in 
Sec.  5.206 to state that ``[t]he effective date of an award resumed 
because a surviving spouse no longer holds himself or herself out as 
the spouse of another is the date the surviving spouse stopped living 
with that person and holding himself or herself out openly to the 
public as that person's spouse, but not earlier than the date VA 
receives an application for benefits.''

Child Status

5.220 Status as a child for VA benefit purposes
    Proposed Sec.  5.220 pertains to status as a child for VA benefit 
purposes. It is based on current Sec.  3.57(a).
    Section 101(4)(A) of title 38, U.S.C., and 38 CFR 3.57 use the 
terms ``legitimate'' and ``illegitimate'' to distinguish between two 
categories of children: Children whose mothers were married when the 
children were born and children whose mothers were not married when the 
children were born. The distinction between the two categories for VA 
benefit purposes lies in differences in evidence required to establish 
a parent-child relationship. We propose to retain that distinction in 
proposed part 5. However, because use of the terms ``legitimate'' and 
``illegitimate'' in describing children is becoming somewhat outmoded, 
we will no longer use those terms. We propose to use the term ``natural 
child'' to designate a child of either category and to maintain the 
distinction when necessary by describing the child's parents' marital 
status when the child was born. The proposed change in language is not 
intended to either diminish or enlarge the group of eligible claimants.
    Proposed Sec.  5.220(b)(2)(ii) relates to status as a child based 
on school

[[Page 55059]]

attendance. It is based on current Sec.  3.57(a)(1)(iii), which states 
that ``[f]or 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.''
    In Theiss v. Principi, 18 Vet. App. 204, 214 (2004), the Court of 
Appeals for Veterans Claims invalidated the provision in current Sec.  
3.57(a)(1)(iii) that excludes home-school programs from the definition 
of ``educational institution;'' holding that an amendment that adopted 
the exclusion did not meet procedural notice and comment requirements 
of 5 U.S.C. 553.
    Although the court invalidated the rule on procedural grounds and 
did not foreclose reinstating it through proper procedures, its opinion 
also supports the idea that an ``educational institution'' could 
equally as well be interpreted to include a home school. Particularly 
in view of the fact that home schooling is becoming more common and 
that many jurisdictions now have procedures in place for accrediting 
home schools, VA proposes to include home-school programs within the 
definition of an ``educational institution'' in Sec.  5.220(b)(2)(ii). 
To help guard against possible abuses, we also propose to specify that 
any educational institution must operate in compliance with the 
compulsory attendance laws of the State in which it is located, whether 
treated as a private school or home school under State law, and that 
the term ``home schools'' is limited to courses of instruction for 
grades kindergarten through 12. (VA has previously proposed to make 
such amendments to 38 CFR 3.57. See 71 FR 39616 (July 13, 2006).
5.221 Evidence to establish a parent-natural child relationship
    Proposed Sec.  5.221 is based on the concepts in current Sec.  
3.210(a) and (b). It omits references to legitimacy or illegitimacy for 
the reasons noted above, but retains distinctions between the types of 
evidence required to establish a parent-natural child relationship when 
the child's parents were married to each other at the time of the 
child's birth and when they were not.
5.222 Adoption arrangements recognized by VA
    New proposed Sec.  5.222(a) states the scope of Sec.  5.222: ``This 
section describes the types of adoption arrangements and evidence of 
those arrangements that VA will accept as proof of an adoption for 
purposes of establishing a person as a child under Sec.  5.220, 
``Status as a child for VA benefit purposes.''
    Proposed paragraph (b) is based on portions of Sec.  3.57(c) and 
Sec.  3.210(c). We have added clarification of a term used in current 
Sec.  3.57(c), ``interlocutory decree.'' Black's Law Dictionary defines 
``interlocutory'' as ``interim or temporary, not constituting a final 
resolution of the whole controversy.'' Black's Law Dictionary, 832 (8th 
ed. 2004). Therefore, we have parenthetically added the word 
``temporary'' after the word ``interlocutory'' in Sec.  5.222(b)(3) in 
order to clarify the meaning of that term. Current Sec.  3.57(c) also 
provides that VA will, subject to certain conditions, recognize an 
interlocutory decree that is ``unrescinded.'' We propose, also in Sec.  
5.222(b)(3), to provide instead that VA will recognize an interlocutory 
decree that has not been rescinded or rendered obsolete. Interlocutory 
awards may be rendered obsolete based on the passage of time or some 
other event.
5.223 Child adopted after a veteran's death recognized as the veteran's 
child
    Proposed Sec.  5.223, derived from current Sec. Sec.  3.57(c)(1) 
through (3) and 3.210(c)(2), concerns conditions under which VA will 
recognize as the child of a deceased veteran a child adopted by the 
veteran's surviving spouse.
    One of the requirements, as currently stated in current Sec.  
3.57(c)(2), is that the child must have been adopted ``under a decree 
issued within 2 years after August 25, 1959, or the veteran's death[,] 
whichever is later.'' The 1959 date was the date of an applicable 
amendment to the authorizing statute, 38 U.S.C. 101(4). Pub. L. 86-195, 
73 Stat. 424 (1959). However, that portion of 38 U.S.C. 101(4) was 
subsequently amended again. Sec. 4(2), Pub. L. 97-295, 96 Stat. 1304 
(1982). The requirement now is that the child must have been ``legally 
adopted by the veteran's surviving spouse before August 26, 1961, or 
within two years after the veteran's death.'' However, we propose to 
omit the date from proposed Sec.  5.223 rather than correcting it. A 
new claim for VA benefits based on a person qualifying as a child by 
virtue of having been adopted by a surviving spouse before August 26, 
1961, rather than within two years after the veteran's death, would now 
be extremely rare due to the passage of time. As a practical matter, it 
would require a claim that depended upon establishing status as a child 
through adoption by a surviving spouse after the veteran's death, but 
before August 26, 1961, in the case of a child who became permanently 
incapable of self-support before reaching 18 years of age. Should such 
a now rare case arise, it could be adjudicated under the controlling 
statute.
    To be consistent with current 38 U.S.C. 101(4), we also propose to 
refer to ``regular contributions'' in Sec.  5.223(a)(3), rather than to 
``recurring contributions'' used in current Sec. Sec.  3.57(c)(3) and 
3.210(c)(2). While regular contribution will always be recurring 
contributions, recurring contributions might not be regular.
5.224 Child status despite adoption out of a veteran's family
    Proposed Sec.  5.224, based on Sec. Sec.  3.58 and 3.210(c)(1), 
concerns continuing status as a veteran's child despite the child's 
adoption out of the veteran's family. Although 38 U.S.C. 101(4) does 
not provide whether a child adopted out of a veteran's family is still 
the veteran's ``child'' for VA benefits purposes, longstanding VA 
practice has been to continue to consider such a child as retaining 
status as the veteran's ``child'' as defined currently in Sec.  3.57. 
This practice prevents a child from losing eligibility for benefits as 
a veteran's ``child'' based merely on adoption out of the veteran's 
family.
5.225 Child status based on adoption into a veteran's family under 
foreign law
    Proposed Sec.  5.225, based on current Sec.  3.57(e), describes the 
requirements for status as a child based on adoption into a veteran's 
family under foreign law.
    One of the requirements for recognizing a person adopted under 
foreign law as the legally adopted child of a living veteran when that 
person lives in a foreign country ``with such veteran (or in the case 
of divorce following adoption, with the divorced spouse who is also an 
adoptive or natural parent) except for periods during which such person 
is residing apart from such veteran (or such divorced spouse) for 
purposes of full-time attendance at an educational institution or 
during which such person or such veteran (or such divorced spouse) is 
confined in a hospital, nursing home, other health-care facility, or 
other institution * * *.'' See 38 U.S.C. 101(4)(B)(i)(IV).
    Current Sec.  3.57(e)(2)(iv) omits the information in the final 
parenthetical relating to the confinement in a hospital, nursing home, 
or other medical institution or health-care facility, of a divorced 
spouse. Proposed Sec.  5.225(b)(1)(iv) corrects this omission.

[[Page 55060]]

    Current Sec.  3.57 provides rules for determining the validity of 
an adoption under foreign law in a case where the veteran is alive and 
the adopted person is living in a foreign country, but it does not 
indicate how that issue is resolved when the veteran is alive and the 
adopted person is not living in a foreign country. New proposed Sec.  
5.225(c) clarifies that in such cases VA will apply the rules in 
Sec. Sec.  5.220 and 5.222 it normally applies to determine the 
validity of adoptions.
    Current Sec.  3.57(e)(3) also addresses the circumstances under 
which VA will recognize, as a child of the veteran, a person adopted 
after the veteran's death. Proposed Sec.  5.225(d)(1) clarifies this 
provision by describing its applicability.
5.226 Child status based on being a veteran's stepchild
    Proposed Sec.  5.226 provides details about how child status is 
established for VA benefit purposes on the basis of a parent-stepchild 
relationship between a veteran and another person. Proposed Sec.  
5.226(a) and (b) consolidate concepts in current Sec.  3.57(b), which 
defines a stepchild, and in current Sec.  3.210(d), which describes the 
evidence necessary to establish child status by virtue of being a 
veteran's stepchild. Current Sec.  3.57(b) defines a stepchild as ``a 
legitimate or an illegitimate child of the veteran's spouse.'' We 
propose to clarify in Sec.  5.226(a)(1) that a veteran's stepchild can 
be either the natural or adopted child of the veteran's spouse. The 
applicable statute, 38 U.S.C. 101(4), does not constrain the meaning of 
``stepchild'' to a natural child.
    Proposed Sec.  5.226(b) restates, with clarifying changes, language 
in current Sec.  3.210(d), which describes what is needed to establish 
a veteran-stepchild relationship.
    There is very little information concerning stepchildren in current 
part 3. In order to provide more guidance, we propose to include in 
proposed Sec.  5.226(c) and (d) provisions derived from long-standing 
VA practice to fill gaps left by the current regulations.
    As indicated in proposed Sec.  5.220(c)(2), one factor in 
establishing a veteran-stepchild relationship is that the person must 
be a member of the veteran's household, or have been a member of the 
veteran's household at the time of the veteran's death. Proposed Sec.  
5.226(c) clarifies the term ``member of the veteran's household'' in 
this context. It explains that a stepchild is recognized as a member of 
the veteran's household when that stepchild resides with the veteran or 
when the veteran provides at least half of the stepchild's support. It 
provides examples of when the latter would apply, including a stepchild 
who lives apart from the veteran solely for medical, educational, or 
similar reasons and a stepchild whom the veteran supports who is living 
with another person who has legal custody of the stepchild. Proposed 
Sec.  5.226(d) explains the effect of termination of a marriage between 
a veteran and the stepchild's parent on the veteran-stepchild 
relationship.
5.227 Child status based on permanent incapacity for self-support
    Proposed Sec.  5.227 would serve essentially the same function in 
proposed part 5 as Sec.  3.356 does in current part 3. As stated in 
proposed Sec.  5.220(b)(1), one of the requirements for status as a 
child for the purpose of VA benefits is that the person be under 18 
years of age. However, this requirement is subject to two exceptions. 
One of these exceptions, which permits child status to continue beyond 
18 years of age if the person became permanently incapable of self-
support before reaching 18 years of age, is the subject of proposed 
Sec.  5.227, as indicated in proposed Sec.  5.227(a).
    Proposed Sec.  5.227(a) serves a function similar to the function 
of current Sec.  3.356(a). However, we note that current Sec.  3.356(a) 
states that the incapacity must be permanent ``at the date of attaining 
the age of 18 years'' (emphasis added), whereas the underlying statute 
38 U.S.C. 101(4)(A)(ii), requires that the person became permanently 
incapable of self-support ``before attaining the age of eighteen 
years'' (emphasis added). Proposed Sec.  5.220(b)(2)(i), cross-
referenced in proposed Sec.  5.227(a), more closely tracks the statute 
in this regard (as does current Sec.  3.57(a)(1)(ii)). A person who 
becomes ``permanently'' incapable of self-support before the date that 
he or she turns 18 will of course continue to be incapable of self-
support at the age of 18.
    Proposed Sec.  5.227(b) begins a new organization and 
simplification of other concepts contained in current Sec.  3.356. 
Current Sec.  3.356(b) discusses both ``permanence'' and ``incapacity 
for self-support'' in the same set of rules. The proposed 
reorganization separates the question of whether a person is incapable 
of self-support from the question of whether that incapacity is 
permanent. We propose this reorganization because the current rule may 
suggest that evidence of employment is of paramount importance in all 
respects, based on the fact that the current rule lists only four 
``[p]rincipal factors for consideration'' and all of those factors 
discuss employment. Employment evidence is certainly relevant to a 
determination of permanent incapacity for self-support. However, 
employment evidence tends to reveal capacity or incapacity for economic 
self-support that existed at the time of the employment in question. It 
may not be sufficient to show whether the incapacity is permanent. In 
practice, VA evaluates whether incapacity is permanent based primarily 
on the nature of the disability itself. Yet, the current regulation 
does not list that factor as a ``[p]rincipal factor for 
consideration.'' The current rule stresses economic factors with 
comparatively little discussion of non-economic factors. Both are 
important in determinations of helpless child status. The proposed 
reorganization would correct the potential for improperly minimizing 
the importance of evidence of social and medical disability.
    Proposed Sec.  5.227(b) discusses the factors considered in 
determining whether a person is incapable of self-support. Proposed 
paragraph (b)(1) lists employment history as the first principal factor 
for consideration in a determination of incapacity for self-support. 
Proposed paragraphs (b)(1)(i) through (b)(1)(iv) list the types of 
employment history for consideration (productive employment, 
intermittent employment, charitable and therapeutic employment, and the 
lack of employment) and how they impact incapacity for self-support 
determinations.
    Proposed Sec.  5.227(b)(2) lists criteria for evaluating the nature 
and extent of a person's disability as the second factor in a 
determination of incapacity for self-support. Proposed criteria include 
whether the disability would render the average person incapable of 
self-support, the impact of the disability on self-care and performing 
tasks ordinarily expected of a person of the same age, and 
consideration of the person's educational accomplishments.
    Proposed paragraph (c) describes how VA determines whether 
incapacity for self-support is ``permanent.'' The proposed factors in 
paragraph (c)(1) add detail to the requirement in Sec.  3.356(b) and in 
proposed Sec.  5.220(b)(2)(i) that determinations will be based on 
whether the child is permanently incapable of self-support through his 
own efforts by reason of physical or mental disability. Proposed 
factors include the following: the nature and extent of disability, 
whether the disability has worsened or improved over time, and whether 
there is a reasonable possibility that the disability will improve in 
the future.

[[Page 55061]]

    Proposed Sec.  5.227(c)(2)(i) restates concepts in the second 
sentence of the introduction to current Sec.  3.356(b), which 
essentially provides that a determination of permanent incapacity for 
self-support is a case-by-case question of fact based on the evidence 
of record. Additional material in proposed paragraph (c)(2)(ii) governs 
the types of evidence most commonly used to support a claim that a 
child is permanently incapable of self-support. This would include 
various medical evidence and statements from persons who have observed 
the child's condition, such as statements from teachers, social 
workers, or tutors having knowledge of the facts. We believe that this 
should be included so that claimants will be aware of the types of 
evidence that they may submit, as well as making adjudicators aware 
that such evidence is particularly relevant in determinations under 
this rule.
    Proposed Sec.  5.227(d) addresses revision of previous VA 
determinations that child status is warranted for a person after 
reaching 18 years of age because of permanent incapacity for self-
support.
    New proposed Sec.  5.227(d)(1) clarifies that a VA determination 
that a child is permanently incapable of self-support is not subject to 
protection under current Sec.  3.951(b) or Sec.  3.952. This is 
consistent with provisions of the introduction to current Sec.  
3.356(b) and proposed Sec.  5.227(b)(2)(ii) that specify that rating 
criteria applicable to disabled veterans are not controlling.
    New proposed Sec.  5.227(d)(2) states that VA will order a 
reexamination in such cases only in unusual circumstances. Inasmuch as 
VA would necessarily have found that incapacity for self-support was 
permanent when making the initial determination, a need for 
reexamination later should rarely be necessary. This new provision 
protects a helpless child from needless reexamination while at the same 
time recognizing that rare cases do occur in which updated medical 
information may be warranted.
    Proposed new Sec.  5.227(d)(4) states that when a child who was 
formerly found by VA to have been permanently incapable of self-support 
based on mental incompetency is later found competent by a court, VA 
will determine whether the child continues to be permanently incapable 
of self-support. This would help to ensure that VA does not consider as 
children people who are capable of self-support. This reflects current 
VA practice, but it is not currently stated in our regulations.
    We propose not to repeat the rules in current Sec.  3.950 in part 
5. Current Sec.  3.950, which is titled ``Helpless children; Spanish 
American and prior wars,'' states that ``[m]arriage 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.''
    Current Sec.  3.950 was added to 38 CFR in 1961 as part of the 
codification of a large number of VA rules. In particular, Sec.  3.950 
was a codification of VA Rule 1950, which, in turn, was a restatement 
of VA Regulation (VAR) 2502(B)(1). The current rule has not been 
amended since that 1961 codification.
    We acknowledge that current Sec.  3.950 protects persons who had 
been found to be helpless children prior to April 1, 1944, by 
establishing a rebuttable presumption, as opposed to a complete bar, 
against payment to a married ``helpless'' child. However, we do not 
believe that this potential protection has application to any existing 
or potential claimants because of the passage of time. Therefore, 
removing Sec.  3.950 would not harm any person potentially benefited by 
the provision.
5.228 Exceptions applicable to termination of child status based on 
marriage of the child
    Proposed Sec.  5.228 is based on current Sec.  3.55(b), but 
includes two new clarifying provisions.
    Proposed new Sec.  5.228(a), an applicability paragraph, explains 
that the section states exceptions to the requirement in Sec.  5.220(a) 
(and in 38 U.S.C. 101(4)(A)) that, for a person to have status as a 
``child'' for VA benefit purposes, that person must be unmarried.
    Proposed new Sec.  5.228(b) clarifies that the requirement that a 
person be unmarried to be recognized as a ``child'' for VA benefit 
purposes does not extend to benefits under 38 U.S.C. chapter 18, which 
provides benefits based upon birth defects suffered by certain children 
of Vietnam Era veterans and children of certain veterans who served in 
Korea. See 38 U.S.C. 1821 and 1831. (The requirement is also 
inapplicable to certain insurance benefits and to a statutory provision 
relating to the disposition of unclaimed personal property. See 38 
U.S.C. 101(4)(A). However, that is beyond the scope of proposed part 
5.)
    Current Sec.  3.55(b)(2) states that ``[o]n 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) [h]as been terminated by death, or (ii) [h]as 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.''
    Proposed Sec.  5.228(c)(3) and (4) retain the basic rules in 
current Sec.  3.55(b)(2), but we have omitted the January 1, 1975, 
effective date, which is now unnecessary due to the passage of time. 
(January 1, 1975, was the effective date of the Veterans and Survivors 
Pension Adjustment Act of 1974, Pub. L. 93-527, 88 Stat. 1702.)
5.229 Proof of age and birth
    Proposed Sec.  5.229 is derived from current Sec. Sec.  3.204(b) 
and 3.209(a) through (g).
5.230 Effective date of award of pension or dependency and indemnity 
compensation to, or based on the existence of, a child born after the 
veteran's death
    Proposed Sec.  5.230 is based on current Sec.  3.403(a)(3). The 
current regulation refers, in part, to a ``notice of the expected or 
actual birth meeting the requirements of an informal claim.'' In this 
particular context, ``an informal claim'' means a ``communication or 
action, indicating an intent to apply for one or more benefits under 
the laws administered by the Department of Veterans Affairs.'' See 
current Sec.  3.155(a). Therefore, in Sec.  5.230, we propose to refer 
to the notice in question as being one that ``is sufficient to indicate 
an intent to apply for pension or DIC benefits'' for, or based on the 
existence of, a child born after the death of the parent-veteran.
    The introduction to current Sec.  3.403(a) states that it applies 
to awards of pension, compensation, or dependency and indemnity 
compensation. In the context of Sec.  3.403(a)(3), compensation would 
be death compensation. However, we have not included death compensation 
provisions in proposed Sec.  5.230. Death compensation is only payable 
based upon the death of a veteran who died before January 1, 1957. See 
38 U.S.C. 1121 and 1141. VA does not anticipate receiving any more 
claims for death compensation that would fall within the scope of 
proposed Sec.  5.230.
5.231 Effective date of reduction or discontinuance--child reaches age 
18 or 23
    Proposed Sec.  5.231 is based on current Sec.  3.503(a)(1). Current 
Sec.  3.503(a)(1)

[[Page 55062]]

provides that the effective date for a reduction or discontinuance of 
benefits that occurs when a child reaches age 18 or 23, as applicable, 
is ``[d]ay before 18th (or 23d birthday) [sic]''. However, the 
introduction to Sec.  3.503(a) states that ``[w]here an award is 
reduced, the reduced rate will be payable the day following the date of 
discontinuance of the greater benefit.'' To simplify this rule, and in 
keeping with the approach used generally in proposed part 5 to state 
effective dates for reductions and discontinues in terms of the first 
day that payments are reduced or discontinued rather than the last day 
of payment at the old rate, we propose to state in Sec.  5.231(b) that 
``VA will pay a reduced rate or discontinue benefits effective on the 
child's 18th or 23rd birthday, as applicable.'' We intend no 
substantive change.
5.232 Effective date of reduction or discontinuance--terminated 
adoptions
    Proposed Sec.  5.232 is based on current Sec.  3.503(a)(10). For 
the same reasons noted with respect to proposed Sec.  5.230 (i.e., 
because of the way current 3.503(a) is structured and the way effective 
dates are framed in proposed part 5), we propose to state that the 
effective date of reduction or discontinuance is the day after the day 
the child left the custody of the adopting parent, etc., rather than 
the date the child left the custody of the adopting parent. In other 
words, benefits would continue to be paid at the old rate for the day 
the child left, but would be discontinued or paid at the reduced rate 
the day after the child left. We intend no substantive change.
5.233 Effective date of reduction or discontinuance `` stepchild no 
longer a member of the veteran's household
    Proposed Sec.  5.233 is based on current Sec.  3.503(a)(6). For the 
same reasons noted with respect to proposed Sec. Sec.  5.231 and 5.232 
(i.e., because of the way current 3.503(a) is structured and the way 
effective dates are framed in proposed part 5), we propose to state 
that the effective date of reduction or discontinuance is the day 
following the date the child ceased being a member of the veteran's 
household, rather than the last day the child was a member of the 
veteran's household. In other words, benefits would continue to be paid 
at the old rate for the day the child left the veteran's household, but 
would be discontinued or paid at the reduced rate the day after the 
child left. We intend no substantive change.
5.234 Effective date of an award, reduction, or discontinuance of 
benefits based on child status due to permanent incapacity for self-
support
    Proposed Sec.  5.234 is based on current Sec. Sec.  3.403(a)(1) and 
3.503(a)(3). New Sec.  5.234(a) states when the section is applicable. 
Proposed paragraph (c) includes wording changes consistent with our 
previously described proposal to state effective dates for reductions 
and discontinuances of benefits in terms of the day the reduction or 
discontinuance actually goes into effect, rather than in terms of the 
last day old rates are paid. The text of Sec.  5.83, referenced in 
proposed Sec.  5.234(c)(2), may be found at 70 FR 24680 at 24687-88.
5.235 Effective date of an award of benefits due to termination of a 
child's marriage
    Proposed Sec.  5.235 is based on current Sec.  3.400(u). A new 
applicability provision, Sec.  5.235(a), clarifies that the section 
states the effective dates of awards to, or based upon the existence 
of, a child when status as a child for the purpose of VA benefits has 
been restored due to termination of the child's marriage.
    Proposed Sec.  5.235(b)(3) consolidates provisions of current Sec.  
3.400(u)(3) and (4) by stating that ``[a]wards under Sec.  5.228(c)(3) 
or (4) (pertaining to marriages terminated by death or divorce prior to 
November 1, 1990) are effective on the date VA receives an application 
for benefits.'' Current Sec.  3.400(u)(3) and (4) provide earlier 
alternate effective dates where claims are received within 1 year of 
the date of death or date the divorce decree became final. We have 
omitted those provisions inasmuch as the death or divorce in question 
must have occurred prior to November 1, 1990. Therefore, no new 
applications for benefits could meet the criteria for the earlier 
alternate effective date.

Parent Status

5.240 Status as a veteran's parent
    Proposed Sec.  5.240 contains the rules in current Sec.  3.59, 
which defines whom VA considers to be a parent of a veteran. We also 
propose to add additional guidance as to how VA determines status as a 
parent, based on long-standing VA practice. Throughout this section the 
term ``child'' refers to the person who later became the veteran.
    Proposed Sec.  5.240(a) is based on current Sec.  3.59(a) and the 
first sentence of Sec.  3.59(b). We propose two clarifying changes as 
to the latter, which reads: ``Foster relationship must have begun prior 
to the veteran's 21st birthday.''
    First, we propose to omit the term ``foster relationship.'' It was 
an unnecessary addition to the regulation that is now Sec.  3.59(b) and 
it could be subject to misinterpretation.
    The relevant relationship in the underlying statute, 38 U.S.C. 
101(5), is not a ``foster relationship,'' but a relationship between a 
veteran and an individual who ``stood in the relationship of a parent 
to a veteran.'' The traditional legal term is ``in loco parentis'' 
(Latin meaning ``in the place of a parent''). The first sentence of 
Sec.  3.59(b) has its origins in an October 1948 amendment to one of 
several predecessor regulations eventually consolidated into Sec.  
3.59, VAR 2514(D). That amendment, in turn, resulted from a series of 
decisions by the Administrator of Veterans Affairs, A.D. No. 536, 
October 22, 1943; A.D. No. 675, November 27, 1945; and A.D. No. 793, 
September 14, 1948. Cumulatively, these decisions essentially held that 
an in loco parentis relationship with a veteran must have begun while 
the veteran was still a minor and that the common law definition of the 
age of majority (age 21) prevails over State statutes establishing ages 
of majority. The last of these decisions, A.D. No. 793, happened to 
arise in a case in which the person who was claiming to be in an in 
loco parentis relationship to a deceased veteran had ``satisfactorily 
established foster parentage,'' but ``foster'' parentage was only 
incidental to the facts of the particular case and not a ground for the 
holding. Therefore, ``foster relationship'' was a debatable addition to 
what is now Sec.  3.59(b) in the first instance.
    In addition, ``foster relationship'' could be misinterpreted in 
this context. VA has not traditionally applied it in the technical 
sense of a foster parent. A ``foster parent'' is ``[a]n adult who, 
though without blood ties or legal ties, cares for and rears a child.'' 
Black's Law Dictionary 1145 (8th ed. 2004). That definition excludes 
persons such as grandparents, aunts, uncles, or even adult siblings who 
may care for and rear a minor child. VA does not exclude such persons 
from being considered a veteran's parents for VA benefit purposes in 
appropriate circumstances.
    The second change is in proposed Sec.  5.240(a)(3)(ii), which shows 
more clearly that while such a relationship must have begun before the 
veteran's 21st birthday, the relationship may have ended at any time 
(subject to the requirement in Sec.  5.240(a)(3)(i) that the 
relationship must have existed for at least one year at sometime before 
the

[[Page 55063]]

veteran's entry into active military service). This is implicit in the 
current regulation, and we intend no substantive change.
    New proposed Sec.  5.240(b) clarifies that VA will not recognize an 
institution as a ``parent'' for VA purposes, even though the 
institution may be providing care for a veteran. This reflects current 
VA practice and, we believe, appropriately provides for the allocation 
of VA benefits to or on behalf of persons and not institutions. 
Further, interpreting ``parent'' to mean an institution would be 
inconsistent with the requirements of 38 U.S.C. 101(5): ``The term 
`parent' means * * * a father, a mother, a father through adoption, a 
mother through adoption, or an individual who for a period of not less 
than one year stood in the relationship of a parent to a veteran * * 
*.''
    Proposed Sec.  5.240(c) clarifies a rule in the first sentence of 
current Sec.  3.59(a) that states that the term ``parent'' includes a 
natural mother or father of an illegitimate child ``if the usual family 
relationship existed.'' Proposed Sec.  5.240(c) provides VA will 
recognize a natural parent who was not married to the veteran's other 
natural parent when the veteran was born if that parent accepted the 
child as a member of his or her household and/or provided ``substantial 
financial support to the veteran consistently from the date of the 
veteran's birth until the veteran reached the age of 21, married, or 
entered active military service.'' Through a reference to Sec.  5.221, 
proposed Sec.  5.240(c) makes it clear that meeting one or both of 
these criteria does not replace the basic requirement that there be 
evidence to establish the parent-veteran relationship.
    Proposed Sec.  5.240(d) provides that a natural or adoptive parent 
who had abandoned a child is not eligible for VA benefits based on 
being the parent of that child and defines the term ``abandoned'' for 
purposes of this provision. This discourages the allocation of VA 
benefits to a parent who did not fulfill that role. However, consistent 
with VA practice, the rule permits recognition as a parent if that 
parent subsequently assumes parental obligations with respect to the 
abandoned child.
    Proposed Sec.  5.240(e)(1) and (2)(i) are based on rules in the 
second and third sentences of current 3.59(b). Under the third sentence 
of Sec.  3.59(b), if two persons stood in the relationship of father or 
mother for one year or more, VA recognizes as the parent the person who 
last stood is such relationship before the veteran last entered active 
military service. Proposed Sec.  5.240(e)(2) generalizes the rule of 
recognizing as the parent the last person who qualified as a parent 
through any of the means listed in Sec.  5.240(a). New proposed Sec.  
5.240(e)(2)(ii) states that ``VA will recognize a veteran's natural 
parent who was the last person to have a parental relationship to the 
veteran before the veteran last entered active military service as the 
mother or father of the veteran even though that parent's rights have 
been terminated by a court.'' This rule, which represents current VA 
practice, makes a natural parent the ``default'' parent in cases where 
parental rights have been terminated but there is no other person who 
assumed the parental relationship with the veteran prior to service.
    Proposed new Sec.  5.240(f) defines the phrase ``relinquished 
parental control'' and expresses a preference for a natural or adoptive 
parent by requiring a person asserting to be a veteran's parent under 
Sec.  5.240(a)(3) to prove that a natural or adoptive parent had 
relinquished parental control. As proposed Sec.  5.240(f) states, 
relinquishment of parental control means that a parent ceased to 
provide for the veteran and that the parent-veteran relationship has 
been broken.

Note Concerning Sec.  3.503(a)(2)

    We propose not to include in part 5 the last sentence of current 
Sec.  3.503(a)(2), which contains the following rule relating to the 
effective date of a reduction or discontinuance to or for a child when 
that child enters services. The rules state: ``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.''
    The first two sentences of this rule will be addressed in another 
NPRM pertaining to apportionments. We do not need to state that VA will 
not reduce or discontinue payments being made on behalf of a child 
since there is no general rule that VA will reduce such payments when 
the child enters service.

Note Concerning Sec.  3.400(w)

    We are not including paragraph (w) of current Sec.  3.400 because 
the statutory authority for that provision no longer exists. The 
substantive rule restated by paragraph (w) originally derived from 38 
U.S.C. 5110(m). The provision was repealed in section 1201(i)(8) of 
Pub. L. 103-446.

Endnote Regarding Amendatory Language

    We intend to ultimately remove part 3 entirely, but we are not 
including amendatory language to accomplish that at this time. VA will 
provide public notice before removing part 3.

Paperwork Reduction Act

    Although this document contains provisions constituting a 
collection of information at Sec. Sec.  5.180, 5.181, 5.182, 5.192, 
5.193, 5.194, 5.196, 5.221, and 5.229 under the provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501-3521), no new or proposed 
revised collections of information are associated with this proposed 
rule. The information collection requirements for Sec. Sec.  5.180, 
5.181, 5.182, 5.192, 5.193, 5.194, 5.196, 5.221, and 5.229 are 
currently approved by the Office of Management and Budget (OMB) and 
have been assigned OMB control numbers 2900-0043, 2900-0089, 2900-0115, 
and 2900-0624.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed regulatory 
amendment 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 proposed amendment would not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed amendment is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: having an annual effect on the 
economy of $100 million or more, creating a serious inconsistency or 
interfering with an action of another agency, materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients, or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this proposed rule and 
has concluded that it is a significant regulatory action

[[Page 55064]]

because it may raise novel legal or policy issues.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any given year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.102, Compensation for Service-
Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-
Service-Connected Disability for Veterans; 64.105, Pension to 
Veterans Surviving Spouses, and Children; 64.109, Veterans 
Compensation for Service-Connected Disability; 64.110, Veterans 
Dependency and Indemnity Compensation for Service-Connected Death; 
and 64.127, Monthly Allowance for Children of Vietnam Veterans Born 
with Spina Bifida.

List of Subjects in 38 CFR Part 5

    Administrative practice and procedure, Claims, Disability benefits, 
Veterans.

    Approved: June 12, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to further 
amend 38 CFR part 5 as proposed to be added at 69 FR 4832, January 30, 
2004, by adding subpart D to read as follows:

PART 5--COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS

Subpart D--Dependents and Survivors

General Dependency Provisions

Sec.
5.180 Evidence of dependency--award of, or an increase in, VA 
benefits.
5.181 Evidence of dependency--reduction or discontinuance of VA 
benefits.
5.182 Beneficiary's responsibility to report changes in status of 
dependents.
5.183 Effective date for additional benefits based on the existence 
of a dependent.
5.184 Effective date of reduction or discontinuance of VA benefits 
due to the death of a beneficiary's dependent.
5.185-5.189 [Reserved]

Marriage, Divorce, And Annulment

5.190 Status as a spouse.
5.191 Marriages VA recognizes as valid.
5.192 Evidence of marriage.
5.193 Proof of marriage termination where evidence is in conflict or 
termination is protested.
5.194 Acceptance of divorce decrees.
5.195 Void marriages.
5.196 Evidence of void or annulled marriages.
5.197 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due 
to marriage or remarriage.
5.198 Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due 
to divorce or annulment.
5.199 [Reserved]

Surviving Spouse Status

5.200 Status as a surviving spouse.
5.201 Surviving spouse status based on a deemed-valid marriage.
5.202 Effect of Federal court decisions on remarriage 
determinations.
5.203 Effect of remarriage on a surviving spouse's benefits.
5.204 Effective date of discontinuance of VA benefits to a surviving 
spouse who holds himself, or herself, out as the spouse of another 
person.
5.205 Effective date of resumption of benefits to a surviving spouse 
due to termination of a remarriage.
5.206 Effective date of resumption of benefits to a surviving spouse 
who stops holding himself, or herself, out as the spouse of another.
5.207-5.219 [Reserved]

Child Status

5.220 Status as a child for VA benefit purposes.
5.221 Evidence to establish a parent-natural child relationship.
5.222 Adoption arrangements recognized by VA.
5.223 Child adopted after a veteran's death recognized as the 
veteran's child.
5.224 Child status despite adoption out of a veteran's family.
5.225 Child status based on adoption into a veteran's family under 
foreign law.
5.226 Child status based on being a veteran's stepchild.
5.227 Child status based on permanent incapacity for self-support.
5.228 Exceptions applicable to termination of child status based on 
marriage of the child.
5.229 Proof of age and birth.
5.230 Effective date of award of pension or dependency and indemnity 
compensation to, or based on the existence of, a child born after 
the veteran's death.
5.231 Effective date of reduction or discontinuance--child reaches 
age 18 or 23.
5.232 Effective date of reduction or discontinuance--terminated 
adoptions.
5.233 Effective date of reduction or discontinuance--stepchild no 
longer a member of the veteran's household.
5.234 Effective date of an award, reduction, or discontinuance of 
benefits based on child status due to permanent incapacity for self-
support.
5.235 Effective date of an award of benefits due to termination of a 
child's marriage.
5.236-5.239 [Reserved]

Parent Status

5.240 Status as a veteran's parent.
5.241-5.249 [Reserved]

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

Subpart D--Dependents and Survivors

General Dependency Provisions


Sec.  5.180  Evidence of dependency--award of, or an increase in, VA 
benefits.

    (a) Purpose. Eligibility for a claimant to receive VA benefits, or 
for a beneficiary to receive an increase in VA benefits, based on the 
existence of a dependent requires that the claimant or beneficiary show 
his or her relationship to the dependent. This section describes the 
types of evidence VA will accept as proof of the claimant's or 
beneficiary's relationship to another person in such cases.
    (b) When a written statement alone is sufficient. Except as noted 
in paragraph (c) of this section, in determining whether a claimant is 
entitled to benefits, or a beneficiary is entitled to additional 
benefits, based on acquiring one or more dependents, VA will accept a 
claimant's or a beneficiary's written statement as sufficient proof of 
marriage, termination of marriage, birth of a child, or death of a 
dependent. The statement must contain all of the applicable information 
described in paragraphs (b)(1) through (b)(4) of this section.
    (1) The date (month and year) and place of the marriage, marriage 
termination, birth, or death.
    (2) The full name and relationship of the other person to the 
claimant or beneficiary.
    (3) The Social Security number of the person who the claimant or 
beneficiary asserts is a dependent and on whose behalf the claimant or 
beneficiary is claiming benefits. See Sec.  5.102, ``Requirement to 
report Social Security numbers.''
    (4) The name and address of the person who has custody of any child 
who the claimant or beneficiary asserts is a dependent, if the 
dependent does not reside with the claimant or beneficiary.
    (c) When a written statement alone is not sufficient. Additional 
supporting evidence will be required in the following cases:
    (1) When the statement does not contain all of the applicable 
information required by paragraphs (b)(1) through (b)(4) of this 
section.

[[Page 55065]]

    (2) When the claimant or beneficiary does not reside in a State, as 
that term is defined in Sec.  3.1(i) of this chapter.
    (3) When something in the statement raises a question as to its 
validity.
    (4) When the statement conflicts with other evidence in the record.
    (5) When there is a reasonable indication, either in the statement 
or in the other evidence in the record, of fraud or misrepresentation 
of the relationship in question.
    (d) Evidence listed by order of preference. The types of additional 
supporting evidence required by paragraph (c) of this section are set 
forth in Sec. Sec.  5.192 through 5.194, 5.221, 5.229 and 3.211 of this 
chapter. Where evidence is set forth in a particular section in the 
order of preference, VA may accept evidence from a lower class of 
preference if it is sufficient to prove the fact at issue.
    (e) Acceptability of photocopies. VA will accept photocopies of 
documents supporting the relationship if it is satisfied that the 
photocopies are authentic and free from alteration. Otherwise, VA may 
require certified copies of documents from the custodian of the 
documents, bearing the custodian's signature and official seal.

(Authority: 38 U.S.C. 501(a), 5124)

Sec.  5.181  Evidence of dependency--reduction or discontinuance of VA 
benefits.

    (a) Scope. This section describes the types of evidence VA will 
accept as proof of a change in the status of a dependent that would 
result in reduction or discontinuation of pension, compensation, or 
dependency and indemnity compensation. It also states the actions VA 
takes if the required evidence is not received.
    (b) Evidence of changes. VA will accept a beneficiary's statement 
of a change in the status of a dependent described in Sec.  5.182 as 
proof of the change if VA has no information contradicting the 
statement. (See Sec.  3.217 of this chapter, ``Submission of statements 
or information affecting entitlement to benefits,'' for information 
concerning acceptable statements.) Otherwise, VA will require formal 
proof regarding the matter.
    (c) Information not reported. If neither the statement described 
in, nor any additional proof required under, paragraph (b) of this 
section is sufficient to establish the necessary facts, VA will reduce 
or discontinue benefits, as appropriate, effective the first day of the 
month that follows the month for which VA last paid benefits.

(Authority: 38 U.S.C. 501(a), 5112)


    Cross Reference: Sec.  5.83, ``Right to notice of decisions and 
adverse actions;'' Sec.  5.84, ``Restoration of benefits following 
adverse action;'' and Sec.  5.104, ``Certifying continuing 
eligibility to receive benefits.''


Sec.  5.182  Beneficiary's responsibility to report changes in status 
of dependents.

    (a) Applicability. This section applies to VA beneficiaries who are 
receiving additional compensation, dependency and indemnity 
compensation, or pension based on the existence of a dependent.
    (b) General rule. Except as provided in paragraph (c) of this 
section, a beneficiary must inform VA of the day, month, and year of a 
change in the status of a dependent that could reduce or discontinue 
his or her benefits. The change must be reported when the beneficiary 
acquires knowledge of the change.
    (c) Marriage, annulment, divorce, death, or discontinuance of 
school attendance. With respect to the date, the beneficiary need only 
report the month and year of any of the following:
    (1) The marriage, annulment of marriage, divorce, or death of a 
dependent, or
    (2) Discontinuation of school attendance by a person recognized by 
VA as a child on the basis of attendance at an approved educational 
institution. See Sec.  5.220(b)(2)(ii) (concerning status as a child 
based on attendance at an approved educational institution).

(Authority: 38 U.S.C. 501(a), 5112)


    Cross Reference: Sec.  5.104, ``Certifying continuing 
eligibility to receive benefits.''


Sec.  5.183  Effective date for additional benefits based on the 
existence of a dependent.

    (a) General rule. Unless specifically provided otherwise in this 
part, the effective date for the award or increased award of additional 
benefits based on the existence of a dependent will be the date VA 
received written notice of the existence of the dependent, if evidence 
of dependency is received within one year of VA's request for such 
evidence. If VA does not receive evidence of the dependency within one 
year of VA's request for such evidence, the effective date for the 
award or increased award of additional benefits based on the existence 
of a dependent will be the date VA received the claim.
    (b) Specific applications and exceptions. The effective date for 
the award or increased award of additional benefits based on the 
existence of a dependent in the following circumstances will be:
    (1) The date of marriage or of the birth or adoption of a child, if 
VA receives written evidence of the event within one year of the event. 
With respect to adoption, the date of the event is the earliest of the 
following, as applicable:
    (i) The date of the adoption placement agreement;
    (ii) The date of the interlocutory (temporary) adoption decree; or
    (iii) The date of the final adoption decree.
    (2) The effective date of the qualifying disability rating, if VA 
receives written evidence of dependency within one year of the date VA 
sent notice of the rating action.
    (3) The same day as the effective date of an award of benefits 
other than benefits based on the existence of a dependent (the primary 
benefits), if:
    (i) Benefits based on the existence of a dependent are claimed on 
the same benefit application as the claim for the primary benefits, or
    (ii) VA receives an application for benefits based on the existence 
of a dependent within one year of the effective date of the award of 
the primary benefits.
    (c) Limitation. (1) In no case will VA award additional benefits 
based on the existence of a dependent effective before dependency for 
VA purposes arose.
    (2) In no case will VA award additional benefits for dependency 
effective before the date of an original claim.

(Authority: 38 U.S.C. 5103(b), 5110(a), (f), (n))


    Cross Reference: Sec.  5.235, ``Effective date of an award of 
benefits due to termination of a child's marriage.''


Sec.  5.184  Effective date of reduction or discontinuance of VA 
benefits due to the death of a beneficiary's dependent.

    Except as provided in Sec.  5.477(a) (applicable to section 306 and 
old-law pension), VA will pay a reduced rate or discontinue benefits 
based on the death of a beneficiary's dependent effective the first day 
of the month that follows the month in which death occurred.

(Authority: 38 U.S.C. 5112(b)(2))

Sec. Sec.  5.185-5.189  [Reserved]

Marriage, Divorce, and Annulment


Sec.  5.190  Status as a spouse.

    For VA purposes, a ``spouse'' is a person of the opposite sex whose 
marriage meets the requirements for a valid marriage under Sec.  5.191, 
``Marriages VA recognizes as valid.''

(Authority: 1 U.S.C. 7; 38 U.S.C. 101(31))

Sec.  5.191  Marriages VA recognizes as valid.

    Except as provided in Sec.  5.201, ``Surviving spouse status based 
on a deemed-valid marriage,'' a valid marriage for VA purposes is one 
between persons of the opposite sex that

[[Page 55066]]

exists in either of the following circumstances:
    (a) The marriage is valid under the law of the place where the 
parties lived at the time of the union; or
    (b) The marriage is valid under the law of the place where the 
parties lived at the time the right to benefits arose.

(Authority: 38 U.S.C. 101(31), 103(c))

Sec.  5.192  Evidence of marriage.

    (a) Applicability. This section describes the evidence of marriage 
VA will accept when more is required than the statement of a claimant 
or beneficiary described in Sec.  5.180, ``Evidence of dependency--
award of, or an increase in, VA benefits,'' or Sec.  5.181, ``Evidence 
of dependency--reduction or discontinuance of VA benefits.''
    (b) Evidence of a valid marriage. In the absence of contrary 
evidence, VA will accept a marriage as valid when the claimant or 
beneficiary provides VA with any of the evidence described in paragraph 
(c) of this section and the facts established by such evidence are 
sufficient to establish a valid marriage under Sec.  5.191, ``Marriages 
VA recognizes as valid.'' If one or both parties to the marriage were 
previously married, VA must also receive the claimant's or 
beneficiary's certified statement giving the date, place, and 
circumstances under which such prior marriages ended.
    (c) Acceptable evidence of marriage. VA will accept any of the 
following as proof of marriage.
    (1) A copy or abstract of the public record of marriage, or a copy 
of the church record of marriage. The copy or abstract must include the 
names of the persons married, the date and place of the marriage, and 
the number of any prior marriages if shown on the official record.
    (2) An official report from the service department if the veteran 
is a party to the marriage and the marriage took place during the 
veteran's military service.
    (3) An affidavit from the official or clergyman who performed the 
ceremony.
    (4) The original marriage certificate if VA 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) For informal or common-law marriages in jurisdictions where 
marriages other than by ceremony are recognized:
    (i) A copy of the State's acknowledgement of registration, if the 
State has a procedure for registering informal or common-law marriages, 
or
    (ii) The affidavit or certified statement of one of the parties to 
the marriage, giving all the facts and circumstances concerning the 
alleged marriage. This includes details of the agreement made by the 
parties at the time they began living together, the length of time in 
months and years they have lived together, the location of each 
residence and the dates the parties lived there, and whether children 
were born as the result of the relationship. Such affidavits or 
certified statements must be accompanied by affidavits or certified 
statements from two or more persons who know from personal observation 
the relationship that existed between the parties. The affidavits or 
statements of these persons must include when the parties lived 
together, the places of the parties' residence, whether they referred 
to themselves as married in the communities they lived in, and whether 
those communities generally accepted them as being married.
    (7) Any other evidence that would reasonably allow a VA decision 
maker to conclude that a valid marriage did occur.

(Authority: 38 U.S.C. 103(c), 501(a))


    Cross Reference: Sec.  5.201, ``Surviving spouse status based on 
a deemed-valid marriage.''


Sec.  5.193  Proof of marriage termination where evidence is in 
conflict or termination is protested.

    When there is conflicting evidence on file, or there is a protest 
from an interested party, VA will accept any of the following as proof 
of the termination of a prior marriage:
    (a) Proof of the former spouse's death.
    (b) Proof of divorce as specified in Sec.  5.194(b) or (c), as 
applicable.
    (c) A court-certified copy of the final decree of annulment or a 
court-certified abstract of such a decree.

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

Sec.  5.194  Acceptance of divorce decrees.

    (a) General rule.--(1) VA will accept as valid a divorce decree 
that is regular (proper) on its face unless its validity is challenged 
by either of the following:
    (i) One of the parties named in the divorce decree, or
    (ii) Any person whose entitlement to VA benefits would be affected 
if VA recognizes the decree as valid.
    (2) In case of such a challenge, VA will make an independent 
decision about the validity of the divorce decree based on the criteria 
in paragraph (b) or (c) of this section, as applicable.
    (b) Challenged divorce decree--party to the divorce has not 
remarried. If the issue is whether a person is validly divorced and 
that person has not remarried, VA will accept the divorce decree as 
valid if all the following conditions are met:
    (1) The person who obtained the divorce had a bona-fide domicile 
(permanent home) in the place where the divorce decree was issued;
    (2) The person satisfied all the legal requirements for obtaining a 
divorce in the place in which the divorce decree was issued; and
    (3) VA has been provided with the original divorce decree, a court-
certified copy of the original decree, or a court-certified abstract of 
the original decree.
    (c) Challenged divorce decree--party to the divorce has 
remarried.--(1) General rule. Except as provided in paragraph (c)(2) of 
this section, if the issue is whether a person who has remarried was 
validly divorced from a prior spouse, then VA will accept the validity 
of the prior divorce decree if either:
    (i) The law of the place where the parties were living when they 
were married recognizes the validity of the divorce decree; or
    (ii) The law of the place where the parties were living when the 
right to VA benefits arose recognizes the validity of the divorce 
decree.
    (2) Foreign decree granted to residents of a State. VA will accept 
as valid a divorce decree obtained outside of a State by residents of 
that State if both of the following conditions are met:
    (i) The State in which the parties to the divorce lived at the time 
they obtained the decree recognizes the decree as valid, and
    (ii) No court of last resort in the places where the parties lived 
when they were married or when the right to VA benefits arose has found 
the divorce decree invalid.

(Authority: 38 U.S.C. 103(c), 501(a))

Sec.  5.195  Void marriages.

    A marriage is void if at least one party to the marriage did not 
meet the legal requirements for entering into the marriage at the time 
the marriage took place. Examples of void marriages include marriages 
in which at least one party was already married and marriages in which 
at least one party failed to meet the minimum age requirement for 
marriage. Whether a marriage is void will be determined under the law 
of the place that governs the marriage's validity. See Sec.  5.191, 
``Marriages VA recognizes as valid.''

(Authority: 38 U.S.C. 103(c), (d), (e); 501(a))

Sec.  5.196  Evidence of void or annulled marriages.

    (a) Void marriage. To establish that a marriage was void, VA must 
receive a

[[Page 55067]]

certified statement from the claimant or beneficiary describing the 
facts that made the marriage void. VA may require the claimant or 
beneficiary to submit additional evidence as the individual 
circumstances may require. See also [regulation that will be published 
in a future Notice of Proposed Rulemaking] (defining ``certified 
statement'').
    (b) Annulled marriage. To establish that a marriage has been 
annulled, VA must receive a copy or abstract of the court's annulment 
decree. VA will accept the decree as valid unless one of the following 
conditions applies:
    (1) The copy or abstract of the decree discloses irregularities.
    (2) VA has reason to question the court's authority to issue the 
annulment decree.
    (3) There is evidence to show that the annulment might have been 
obtained by fraud of either party or by collusion of the parties.

(Authority: 38 U.S.C. 103(d), (e), 501(a))

Sec.  5.197  Effective date of reduction or discontinuance of improved 
pension, compensation, or dependency and indemnity compensation due to 
marriage or remarriage.

    (a) Scope. This section provides effective date rules applicable 
when VA determines that a reduction or discontinuance of improved 
pension, compensation, or dependency and indemnity compensation is 
required based on the marriage or remarriage of a beneficiary, an 
apportionee of a beneficiary's VA benefits, or a beneficiary's 
dependent.
    (b) Effective date of reduction or discontinuance. (1) Beneficiary 
or apportionee. VA will pay the reduced rate or discontinue benefits 
effective the first day of the month in which the marriage or 
remarriage occurred.
    (2) Dependent of a beneficiary. VA will pay the reduced rate or 
discontinue benefits effective the first day of the month that follows 
the month in which the marriage or remarriage occurred.

(Authority: 38 U.S.C. 5112(b)(1))


    Cross Reference: Sec.  5.477, ``Effective dates for section 306 
and old-law pension reductions or discontinuances.''


Sec.  5.198  Effective date of reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation due to 
divorce or annulment.

    (a) Scope. This section provides effective date rules applicable 
when VA determines that a reduction or discontinuance of Improved 
Pension, compensation, or dependency and indemnity compensation is 
required based on termination of the marriage of a beneficiary due to 
divorce or annulment of the marriage.
    (b) Effective date of reduction or discontinuance. VA will pay the 
reduced rate or discontinue benefits effective the first day of the 
month that follows the month in which the divorce or annulment 
occurred.

(Authority: 38 U.S.C. 5112(b)(2))


    Cross Reference: Sec.  5.477, Effective dates for section 306 
and old-law pension reductions or discontinuances.


Sec.  5.199  [Reserved]

Surviving Spouse Status


Sec.  5.200  Status as a surviving spouse.

    (a) General. A ``surviving spouse'' is a person who meets the 
following requirements:
    (1) Subject to Sec.  5.201, ``Surviving spouse status based on a 
deemed-valid marriage,'' the person met the requirements in Sec.  
5.190, ``Status as a spouse,'' for being the veteran's ``spouse'' at 
the time the veteran died;
    (2) Except as otherwise provided in Sec.  5.203, ``Effect of 
remarriage on a surviving spouse's benefits,'' the person has neither 
remarried nor, since the death of the veteran and after September 19, 
1962, held himself or herself out to the public, through a pattern or 
course of conduct, as the spouse of another person of the opposite sex 
with whom he or she has lived; and
    (3) Subject to paragraph (b) of this section, the person lived 
continuously with the veteran from the date of marriage to the date of 
the veteran's death.
    (b) Continuous cohabitation. The following considerations apply, as 
applicable, in determining whether the requirement of paragraph (a)(3) 
of this section is met:
    (1) Person not at fault in the separation. (i) Criteria. Even if 
the veteran and the person separated during the marriage, the 
continuous cohabitation requirement of paragraph (a)(3) of this section 
will be considered met if the following requirements are met:
    (A) The person was not at fault in causing the separation, and
    (B) The veteran brought about the separation or the veteran's 
misconduct caused the separation.
    (ii) When misconduct occurred. In determining who was at fault in 
causing the separation, VA will consider the veteran's and the other 
person's conduct at the time the separation took place, but not conduct 
taking place after the separation.
    (2) Separation by mutual consent. If the evidence shows that the 
veteran and the other person both consented to the separation, and that 
the intent of the person was not to desert the veteran or to abandon 
the marriage, but to accomplish some other purpose such as convenience, 
health, or business, then VA will not consider the separation to have 
broken the continuity of cohabitation.
    (3) Temporary separations. Temporary separations that ordinarily 
occur, regardless of who is at fault in bringing about the separation, 
do not break the continuity of cohabitation.
    (4) Statement as evidence. VA will accept the person's statement 
explaining the reason for the separation from the veteran in the 
absence of contradictory information.
    (5) State law not controlling. State laws do not control VA's 
assessment of whether separation has resulted from desertion. VA will, 
however, give due consideration to findings of fact made in court 
decisions dealing with this issue that were made during the lifetime of 
the veteran.

(Authority: 38 U.S.C. 101(3), 501(a))

Sec.  5.201  Surviving spouse status based on a deemed-valid marriage.

    (a) Marriages deemed valid. VA will recognize a marriage to a 
veteran that does not meet the requirements of Sec.  5.191, ``Marriages 
VA recognizes as valid,'' as valid for the purposes of entitlement to 
VA death benefits if all the criteria in paragraphs (b) through (e) of 
this section are met.
    (b) Marriage requirement. The person and the veteran were 
purportedly married for at least one year before the veteran died, 
unless the person and the veteran had a child during or before the 
marriage. If a child was born of or before the marriage, the marriage 
could have existed for any length of time when the veteran died. See 
Sec.  3.54(d) of this chapter (definition of ``child born of the 
marriage'').
    (c) No knowledge of legal impediment. At the time of the attempted 
marriage, the person did not know that there was a legal impediment to 
the marriage. VA follows these guidelines:
    (1) Only the person's knowledge at the time of the attempted 
marriage, but not knowledge acquired after the marriage, is relevant.
    (2) Legal impediments include one of the parties being underage, 
one of the parties having a prior undissolved marriage at the time of 
the attempted marriage, and, in a jurisdiction that does not recognize 
common-law marriages, the parties' failure to marry through a marriage 
ceremony.
    (3) If the person submits as proof of the marriage one of the kinds 
of

[[Page 55068]]

evidence listed in Sec.  5.192(c), and satisfies the other requirements 
in this section, then VA will accept a signed statement from the person 
that he or she had no knowledge of the impediment to the marriage as 
proof of that fact, unless there is evidence showing otherwise.
    (d) Continuous cohabitation. The person lived with the veteran 
continuously from the day of the marriage to the day of the veteran's 
death. The considerations for application in determining whether this 
requirement is satisfied are the same as those in Sec.  5.200(b).
    (e) No other legal surviving spouse. No legal surviving spouse (one 
who qualifies as a ``surviving spouse'' under Sec.  5.200) has already 
filed a claim for death benefits for which that person meets all the 
legal and factual criteria and to which he or she has been determined 
by VA to be entitled. However, a legal surviving spouse's entitlement 
to accrued benefits or benefits awarded, but unpaid at death, does not 
prevent another claimant from being considered the veteran's surviving 
spouse through a marriage deemed valid under this section.

(Authority: 38 U.S.C. 103(a), 501(a))


    Cross References: [regulation that will be published in a future 
Notice of Proposed Rulemaking] (concerning deemed-valid marriages 
and Improved Death Pension adjusted annual income determinations); 
Sec. Sec.  5.550 through 5.559 (concerning accrued benefits and 
benefits awarded, but unpaid at death).


Sec.  5.202  Effect of Federal court decisions on remarriage 
determinations.

    (a) General rule. In determining eligibility for pension, death 
compensation, or dependency and indemnity compensation, VA will accept 
the decision of a Federal court that a surviving spouse has not 
remarried if the U.S. Government was a party to the case in which that 
decision was rendered.
    (b) Application to Sec.  5.200(a)(2). This section does not apply 
to VA determinations regarding whether a surviving spouse has held 
himself or herself out openly to the public as the spouse of another 
person under Sec.  5.200(a)(2).

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

Sec.  5.203  Effect of remarriage on a surviving spouse's benefits.

    (a) General rule. Except as otherwise provided in this section, VA 
will not provide benefits governed by this part to a person as the 
surviving spouse of a veteran if either of the following applies:
    (1) The person has remarried.
    (2) The person has held himself or herself out as the spouse of 
another as described in Sec.  5.200(a)(2).

(Authority: 38 U.S.C. 101(3))


    (b) Void or annulled remarriages. Remarriage will not prevent a 
surviving spouse from receiving VA benefits if the remarriage was 
either:
    (1) Void (see Sec.  5.195, ``Void marriages''); or
    (2) Annulled by a court having authority to annul marriages, unless 
VA determines that the annulment was obtained through fraud by either 
party or by collusion of the parties.

(Authority: 38 U.S.C. 103(d)(1))


    (c) Reinstatement of eligibility for benefits for surviving spouses 
who, because of remarriage, may have been ineligible for benefits under 
laws in effect before January 1, 1971, and whose remarriages ended 
before November 1, 1990. After December 31, 1970, none of the following 
will prevent a surviving spouse who may have been ineligible for VA 
benefits under laws in effect before January 1, 1971, because of 
remarriage from receiving benefits:
    (1) Remarriage that ended by death before November 1, 1990.
    (2) Remarriage that ended by divorce provided that proceedings 
began before November 1, 1990, unless VA determines that the divorce 
was obtained through fraud by the surviving spouse or by collusion of 
the parties.
    (3) Remarriage that was dissolved by a court with authority to 
render divorce decrees in legal proceedings begun by the surviving 
spouse before November 1, 1990, unless VA determines that the divorce 
was obtained through fraud by the surviving spouse or by collusion of 
the parties.
    (4) The fact that the surviving spouse has lived with another 
person and has held himself or herself out openly to the public as the 
spouse of that person, provided that competent, credible evidence shows 
that the surviving spouse stopped living with that person and holding 
himself or herself out openly to the public as that person's spouse 
before November 1, 1990. Such evidence may consist of the surviving 
spouse's certified statement of the fact.

(Authority: 38 U.S.C. 501(a); Sec. 4, Pub. L. 91-376, 84 Stat. 789; 
Sec. 8004, Pub. L. 101-508, 104 Stat. 1388-343; Sec. 502, Pub. L. 
102-86, 105 Stat. 424; Sec. 103, Pub. L. 102-568, 106 Stat. 4322)


    (d) Reinstatement of eligibility for dependency and indemnity 
compensation (DIC) for surviving spouses who, because of remarriage, 
may have been ineligible for DIC under laws in effect before June 9, 
1998--(1) Termination of remarriage. None of the following will prevent 
a surviving spouse who may have been ineligible for DIC under laws in 
effect before June 9, 1998, because of remarriage from receiving 
benefits:
    (i) Remarriage ended by death;
    (ii) Remarriage ended by divorce, unless VA determines that the 
divorce was obtained through fraud by the surviving spouse or by 
collusion of the parties; or
    (iii) The fact that the surviving spouse has lived with another 
person and has held himself or herself out openly to the public as the 
spouse of that person, provided that competent, credible evidence shows 
that the surviving spouse stopped living with that person and holding 
himself or herself out openly to the public as that person's spouse. 
Such evidence may consist of the surviving spouse's certified statement 
of the fact.
    (2) Limitation. No payment may be made under this paragraph (d) for 
any month before October 1998.

(Authority: 38 U.S.C. 103(d)(2); Sec. 8207, Pub. L. 105-178, 112 
Stat. 495)


    (e) Remarriages after age 57.--(1) A surviving spouse's remarriage 
after reaching the age of 57 will not prevent the surviving spouse from 
receiving DIC if the surviving spouse remarried after December 15, 
2003.
    (2) No payment may be made under this paragraph (e) for any month 
before January 2004.

(Authority: 38 U.S.C. 103(d)(2)(B); Sec. 101, Pub. L. 108-183, 117 
Stat. 2652)

Sec.  5.204  Effective date of discontinuance of VA benefits to a 
surviving spouse who holds himself, or herself, out as the spouse of 
another person.

    When a surviving spouse lives with another person of the opposite 
sex and holds himself or herself out openly to the public as the spouse 
of that person, VA will discontinue that surviving spouse's benefits 
effective the first day of the month that the relationship began.

(Authority: 38 U.S.C. 101(3), 5112(b)(1))

Sec.  5.205  Effective date of resumption of benefits to a surviving 
spouse due to termination of a remarriage.

    (a) Void remarriage. The effective date of an award resumed because 
a surviving spouse's remarriage is void is the later of the following 
dates:
    (1) The date the surviving spouse and the other person stopped 
living together; or
    (2) The date VA receives an application from the surviving spouse 
for resumption of benefits.

[[Page 55069]]

    (b) Annulment. The effective date of an award resumed because a 
surviving spouse's remarriage is annulled is:
    (1) The date the annulment decree became final, if the surviving 
spouse files an application for resumption of benefits within one year 
of that date; otherwise,
    (2) The date VA receives an application for resumption of benefits.
    (c) Divorce. The effective date of an award resumed because a 
surviving spouse's remarriage ends in divorce, provided the surviving 
spouse meets the requirements of Sec.  5.203(c) and (d) for 
reinstatement, is:
    (1) The date the divorce decree became final if the surviving 
spouse files an application for resumption of benefits within one year 
of that date; otherwise,
    (2) The date VA receives an application for resumption of benefits.
    (d) Death. The effective date of an award resumed because a 
surviving spouse's remarriage ends due to a death, provided the 
surviving spouse meets the requirements of Sec.  5.203 is:
    (1) The date of death, if the surviving spouse files an application 
for resumption of benefits within one year of that date; otherwise,
    (2) The date VA receives an application for resumption of benefits.

(Authority: 38 U.S.C. 5110(a), (k), (l))

Sec.  5.206  Effective date of resumption of benefits to a surviving 
spouse who stops holding himself, or herself, out as the spouse of 
another.

    The effective date of an award resumed because a surviving spouse 
no longer holds himself or herself out as the spouse of another is the 
date the surviving spouse stopped living with that person and holding 
himself or herself out openly to the public as that person's spouse, 
but not earlier than the date VA receives an application for benefits.

(Authority: 38 U.S.C. 103(d)(3), 5110(a))

Sec. Sec.  5.207-5.219  [Reserved]

Child Status


Sec.  5.220  Status as a child for VA benefit purposes.

    The following criteria must be met for a person to be recognized as 
a ``child'' for the purpose of VA benefits governed by this part:
    (a) Marital status. Except as provided in Sec.  5.228, ``Exceptions 
applicable to termination of child status based on marriage of the 
child,'' the person must be unmarried.
    (b) Age. (1) General rule. The person must be under 18 years of 
age.
    (2) Exceptions. The person may be 18 years of age or older under 
either of the following conditions:
    (i) The person, before reaching 18 years of age, became permanently 
incapable of self-support through his or her own efforts by reason of 
physical or mental disability (see Sec.  5.227, ``Child status based on 
permanent incapacity for self-support'') or
    (ii) The person is under 23 years of age and is pursuing a course o 
of instruction at an educational institution approved by the Department 
of Veterans Affairs. For the purposes of this section, 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. The term also includes home 
schools that operate in compliance with the compulsory attendance laws 
of the States in which they are located, whether treated as private 
schools or home schools under State law. The term ``home schools'' is 
limited to courses of instruction for grades kindergarten through 12.
    (c) Relationship. The person must bear one of the following 
relationships to the veteran:
    (1) The veteran's natural child.
    (2) The veteran's stepchild who became a stepchild under one of the 
following conditions:
    (i) The person became the veteran's stepchild before reaching 18 
years of age and 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
    (ii) The person is a person described in paragraph (b)(2)(ii) of 
this section who became the veteran's stepchild after reaching 18 years 
of age, but before reaching 23 years of age, and who is a member of the 
veteran's household or was a member of the veteran's household at the 
time of the veteran's death.
    (3) The veteran's legally adopted child. See Sec.  5.222, 
``Adoption arrangements recognized by VA.'' The person must have been 
adopted by the veteran before the person reached 18 years of age, 
except for the following persons:
    (i) A person who became permanently incapable of self-support 
before reaching 18 years of age and was a member of the veteran's 
household at the time he or she became 18 years of age, or
    (ii) A person described in paragraph (b)(2)(ii) of this section who 
was adopted after reaching 18 years of age, but before reaching 23 
years of age.

(Authority: 38 U.S.C. 101(4)(A), 104, 501(a))

Sec.  5.221  Evidence to establish a parent-natural child relationship.

    (a) Parents married at date of child's birth. If additional 
evidence of relationship is required under Sec.  5.180(c) and the 
parents were married to each other at the time of the child's birth, a 
claimant or beneficiary may prove a parent-natural child relationship 
as follows:
    (1) Mother. Any of the evidence described in Sec.  5.229, ``Proof 
of age and birth,'' that shows a mother-natural child relationship may 
be used to establish such a relationship.
    (2) Father. Any of the evidence described in Sec.  5.229, ``Proof 
of age and birth,'' that shows a father-natural child relationship may 
be used to establish such a relationship. If such evidence does not 
show that a male who was married to the child's mother when the child 
was born is the child's father, or shows someone else as the child's 
father, VA will evaluate the facts surrounding the case, make any 
necessary requests for evidence and information, and then determine 
whether or not the male is the child's natural parent.

    Note to paragraph (a)(2): The fact that the evidence does not 
establish a father-natural child relationship between a child and a 
male married to the child's mother at the time of the child's birth 
does not preclude VA recognition of that child as that male's 
stepchild under the provisions of Sec.  5.226, ``Child status based 
on being a veteran's stepchild,'' where applicable.

    (b) Parents unmarried at date of child's birth. If additional 
evidence of relationship is required under Sec.  5.180(c) and the 
parents were not married to each other at the time of the child's 
birth, a claimant or beneficiary may prove a parent-natural child 
relationship as follows:
    (1) Mother. Any of the evidence described in Sec.  5.229, ``Proof 
of age and birth,'' that shows a mother-natural child relationship may 
be used to establish such a relationship.
    (2) Father. Any one of the following may be used to establish a 
father-natural child relationship:
    (i) A male's statement in writing and signed by him acknowledging 
himself as the natural father of the child;
    (ii) Evidence showing that a specific male has been identified as 
the child's father by judicial decree; or
    (iii) Other competent evidence showing that a child is the natural 
child of a specific male, including any of the following:

[[Page 55070]]

    (A) A copy of the public record of birth or a church record of 
baptism showing that a specific male was the informant and was named as 
the parent of the child,
    (B) Statements from individuals who know that a specific male 
accepted the child as his own, or
    (C) Service department records or public records, such as records 
from schools or welfare agencies, showing that, with his knowledge, a 
specific male was named as the child's father.

(Authority: 38 U.S.C. 101(4), 501(a))

Sec.  5.222  Adoption arrangements recognized by VA.

    (a) Scope. This section describes the types of adoption 
arrangements and evidence of those arrangements that VA will accept as 
proof of an adoption for purposes of establishing a person as a child 
under Sec.  5.220, ``Status as a child for VA benefit purposes.''
    (b) Establishing a legal adoption. Any one of the following 
establishes a child's adoption into a family:
    (1) A final adoption decree.
    (2) A revised birth certificate showing the child as the child of 
the adopting parent(s) in cases where release of adoption documents or 
information is prohibited or requires petition to a court (records 
sealed by a court, for example).
    (3) An interlocutory (temporary) adoption decree, provided that the 
decree has not been rescinded or superseded and the child remains in 
the custody of the adopting parent(s) during the interlocutory period.
    (4) An adoption placement agreement between a parent, or parents, 
and an agency authorized by law to arrange adoptions. VA will recognize 
such an agreement for the duration of its term, provided that the 
adoptive parent(s) maintain custody of the child.

(Authority: 38 U.S.C. 101(4))

Sec.  5.223  Child adopted after a veteran's death recognized as the 
veteran's child.

    (a) Circumstances under which adoption will be recognized. VA will 
recognize a person adopted by a veteran's surviving spouse as the 
veteran's child as of the date of the veteran's death if all of the 
following conditions are met:
    (1) The adoption took place under a decree issued within two years 
of the veteran's death;
    (2) The person adopted was living in the veteran's household at the 
time of the veteran's death; and
    (3) At the time of the veteran's death the person adopted was not 
receiving regular contributions sufficient to provide for the major 
portion of the child's support, from any public or private welfare 
organization that furnishes services or assistance for children or from 
a person other than the veteran or the veteran's spouse.
    (b) Evidence. In the absence of information to the contrary, VA 
will accept the statement of the surviving spouse or the custodian of 
the child that the requirements described in paragraphs (a)(2) and 
(a)(3) of this section have been met.

(Authority: 38 U.S.C. 101(4))

Sec.  5.224  Child status despite adoption out of a veteran's family.

    (a) Retention of eligibility for VA benefits. The adoption of a 
veteran's child out of the veteran's family, whether before or after 
the veteran's death, does not terminate that person's status as the 
veteran's child for purposes of eligibility for VA benefits.
    (b) Evidence.--(1) Evidence of adoption where release of adoption 
records is restricted or prohibited. To establish status as a veteran's 
child for a child who was adopted out of a veteran's family, in those 
jurisdictions where a petition must be made to a court for release of 
documents or information or when release of such documents or 
information is prohibited, either of the following will be accepted as 
proof of status as the veteran's child:
    (i) 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.
    (ii) A certified statement by the veteran, the veteran's surviving 
spouse, a person receiving an apportionment of benefits, or their 
fiduciaries setting forth the child's former name, the child's date of 
birth, and the date and fact of adoption together with evidence 
indicating that the child's original public record of birth has been 
removed from such records.
    (2) Evidence of child-natural parent relationship in apportionment 
cases. If VA receives an application for an apportionment under Sec.  
3.458(d) of this chapter on behalf of a child adopted out of a 
veteran's family, the evidence must be sufficient to establish the 
veteran as the natural parent of the child. See Sec.  5.221, ``Evidence 
to establish a parent-natural child relationship.''

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

Sec.  5.225  Child status based on adoption into a veteran's family 
under foreign law.

    (a) General.--(1) Purpose. VA will apply the provisions of this 
section to determine the validity of an adoption for VA benefit 
purposes when a person was adopted into a veteran's family under the 
laws of a foreign country.
    (2) Foreign country. For purposes of this section, the term 
``foreign country'' means a place other than a State as defined in 
Sec.  3.1(i) of this chapter and other than the Commonwealth of the 
Northern Mariana Islands.
    (3) Inclusion of certain Philippine veterans. For purposes of this 
section, the term ``veteran'' includes a Commonwealth Army veteran or 
new Philippine Scout as defined in 38 U.S.C. 3566.
    (b) Living veteran--adopted person living in a foreign country.--
(1) Requirements for recognition of adoption. If the veteran is alive 
and the person adopted under the law of a foreign country lives in a 
foreign country, VA will recognize the person's adoption as valid if 
all of the following conditions are met:
    (i) The person was under age 18 when adopted;
    (ii) The veteran provides one-half or more of the person's support;
    (iii) The person's natural parent does not have custody of the 
person (this requirement does not apply if the natural parent is also 
the veteran's spouse); and
    (iv) The person lives with the veteran or with the divorced spouse 
of the veteran if the divorced spouse is also the natural or adoptive 
parent. This requirement does not apply when the person is attending an 
educational institution full-time, or when the person, the veteran, or 
the divorced spouse is confined in a hospital, nursing home, other 
institution, or other health-care facility.
    (2) Continuing requirements. The requirements noted in paragraphs 
(b)(1)(ii) through (iv) of this section must continue to be met 
following the adoption. VA may from time to time verify that these 
requirements are being met after the initial award of benefits to or 
based on the existence of the child. A beneficiary's failure to provide 
verifying information or documents upon VA's request may result in 
suspension or discontinuance of payments until VA receives proof that 
the requirements are still met.
    (c) Living veteran--adopted person not living in a foreign country. 
If the veteran is alive and the person adopted under foreign law does 
not live in a foreign country, VA will determine the validity of the 
adoption under Sec. Sec.  5.220, ``Status as a child for VA benefit 
purposes,'' and 5.222, ``Adoption arrangements recognized by VA.''
    (d) Deceased veteran and surviving spouse adoptions. (1) 
Applicability. This paragraph (d) applies if a veteran adopted a person 
under the laws of a foreign country, but the parent-child

[[Page 55071]]

relationship had not been established for VA purposes during the 
veteran's lifetime. This paragraph (d) also applies if a surviving 
spouse adopted a person under the laws of a foreign country after the 
veteran's death.
    (2) Requirements for recognition of adoption. VA will recognize the 
person's adoption as valid if the veteran was entitled to and was 
receiving a VA dependent's allowance or similar VA monetary benefit for 
the person at any time within one year before the veteran's death or if 
all of the following conditions are met:
    (i) The person was under age 18 when adopted, and
    (ii) All of the following conditions were met for at least one year 
before the veteran's death:
    (A) The veteran provided one half or more of the person's support,
    (B) The person's natural parent did not have custody of the person 
unless the natural parent is the veteran's surviving spouse, and
    (C) The person lived with the veteran or with the divorced spouse 
of the veteran if the divorced spouse is also the natural or adoptive 
parent. This requirement does not apply when the person is attending an 
educational institution full-time, or when the person, the veteran, or 
the divorced spouse is confined in a hospital, nursing home, other 
institution, or other health-care facility.
    (3) Additional requirements when the person was adopted by a 
surviving spouse after the veteran's death. In the case of adoption by 
a surviving spouse after the veteran's death, the adoption must also 
meet the requirements of Sec.  5.223, ``Child adopted after a veteran's 
death recognized as the veteran's child.''

(Authority: 38 U.S.C. 101(4), 501(a))

Sec.  5.226  Child status based on being a veteran's stepchild.

    (a) Definitions. The following definitions apply for purposes of 
this section:
    (1) Stepchild means a natural or adopted child of a veteran's 
spouse, but not of the veteran, to include the child of a surviving 
spouse whose marriage to the veteran is deemed valid under the 
provisions of Sec.  5.201, ``Surviving spouse status based on a deemed-
valid marriage.''
    (2) Veteran-stepchild relationship means a relationship between the 
veteran and the stepchild that meets the requirements of Sec.  
5.220(c)(2).
    (b) Proof of veteran-stepchild relationship. Proof of the veteran-
stepchild relationship must include, in addition to evidence that the 
criteria described in Sec.  5.220(c)(2) are met, evidence of both of 
the following:
    (1) The child is related to the spouse of the veteran by birth or 
adoption; and
    (2) The veteran is or, in the case of a deceased veteran, was at 
the time of his or her death married to the natural or adoptive parent 
of the child.
    (c) Member of veteran's household. VA will consider a stepchild as 
being or having been a member of the veteran's household for purposes 
of Sec.  5.220(c)(2) when either of the following conditions are met:
    (1) The child resides with the veteran or resided with the veteran 
on the date the veteran died; or
    (2) The stepchild does not reside with the veteran or did not 
reside with the veteran on the date the veteran died, but the stepchild 
receives or received at least half of his or her support from the 
veteran. This includes a stepchild living apart from the veteran solely 
for medical, school, or similar reasons and a stepchild who is living 
with another person who has legal custody of the child.
    (d) Effect of termination of marriage or legal separation on 
stepchild relationship--(1) General rule. Termination of a marriage, or 
formal legal separation, between a veteran and a stepchild's natural or 
adoptive parent terminates the veteran-stepchild relationship.
    (2) Exception. The veteran-stepchild relationship remains intact if 
either:
    (i) The stepchild continues to live with the veteran, or
    (ii) The veteran continues to provide at least half of the 
stepchild's support.
    (3) If the marriage between a veteran and a stepchild's natural or 
adoptive parent ended, or they legally separated, before the date of 
the veteran's entitlement to VA benefits, the stepchild can still be 
established as the veteran's child provided the validity of the 
marriage can be proved and the stepchild continues after termination of 
the marriage to be a member of the veteran's household as defined in 
paragraph (c) of this section.

(Authority: 38 U.S.C. 101(4), 501(a))

Sec.  5.227  Child status based on permanent incapacity for self-
support.

    (a) Applicability. This section sets out criteria VA uses to 
determine whether a person can be recognized as a ``child'' for VA 
benefit purposes under Sec.  5.220(b)(2)(i) after reaching 18 years of 
age because the person became permanently incapable of self-support 
before reaching the age of 18.
    (b) Determining incapacity for self-support. The principal factors 
VA considers in determining whether a person is capable of self-support 
are:
    (1) Employment history. (i) Productive employment. A person who by 
his or her own efforts earns sufficient income for his or her 
reasonable support is not incapable of self-support.
    (ii) Intermittent employment. Employment that is only part of a 
tryout or that is casual, intermittent, unsuccessful, or terminated 
after a short period by reason of disability does not preclude a 
finding of incapacity of self-support due to mental or physical 
disability that is otherwise established under this section.
    (iii) Charitable or therapeutic employment. VA will not find 
capacity for self-support based on employment afforded solely upon 
sympathetic, therapeutic, or charitable considerations and that 
involves no actual or substantial provision of services.
    (iv) Lack of employment. Evidence that a person was not employed 
before or after reaching 18 years old tends to show incapacity for 
self-support when the lack of employment was due to the person's 
physical or mental disabilities and not due to unwillingness to work or 
other factors unrelated to the person's disability.
    (2) Nature and extent of disability. (i) In cases where the person 
is not provided with sufficient income for his or her reasonable 
support by his or her own efforts, VA will consider the following:
    (A) Whether the extent and nature of disability would render the 
average person incapable of self-support;
    (B) The impact of the disability on the person's ability to care 
for himself or herself and to perform the ordinary tasks expected of a 
person of the same age; and
    (C) Whether the person attended school, and the highest grade 
completed.
    (ii) Rating criteria applicable to disabled veterans set out in 
part 4 of this chapter are not controlling.
    (c) Determining permanence of incapacity. (1) Principal factors. 
The principal factors for determining whether incapacity is permanent 
include the following:
    (i) The nature and extent of disability;
    (ii) Whether the disability has worsened or improved over time; and
    (iii) Whether there is a reasonable possibility that the disability 
will improve in the future.
    (2) Case-by-case determinations. (i) VA will determine the person's 
permanent incapacity for self-support on a case-by-case basis based on 
the evidence of record.

[[Page 55072]]

    (ii) Evidence VA will consider may include:
    (A) A VA examination if deemed necessary.
    (B) Medical or psychiatric examination or treatment records.
    (C) Statements of persons having knowledge of the facts who have 
observed the child's condition, such as teachers, tutors, or social 
workers, or statements from institutions where the child received care, 
schooling, or other related services.
    (iii) VA may consider relevant evidence dated before or after the 
child reached 18 years of age.
    (d) Revision of child status determinations.--(1) Certain 
protection provisions inapplicable. A VA determination that a child is 
permanently incapable of self-support is not subject to protection 
under Sec.  3.951(b) or Sec.  3.952 of this chapter.
    (2) Reexamination. Only in unusual cases will VA request 
reexamination after it has found that a child is permanently incapable 
of self-support.
    (3) Intermittent employment. A child previously shown by competent 
evidence to have been permanently incapable of self-support before 
reaching 18 years of age may be held to remain so at a later date even 
though there may have been a short intervening period or periods of 
employment of the type described in paragraph (b)(1)(ii) of this 
section, provided the cause of the incapacity is the same as that upon 
which VA previously found permanent incapacity and there was no 
intervening disease or injury that could be considered a major factor 
in current incapacity.
    (4) Court competency findings. If VA receives evidence that shows 
that a child formerly found by VA to have been permanently incapable of 
self-support before reaching 18 years of age based on mental 
incompetency has been found competent by a court, VA will determine 
whether the child continues to be permanently incapable of self-support 
under this section. Such court determinations are not binding upon VA.

(Authority: 38 U.S.C. 101(4)(A)(ii); 501(a))

Sec.  5.228  Exceptions applicable to termination of child status based 
on marriage of the child.

    (a) Applicability. This section states exceptions to the 
requirement in Sec.  5.220(a) that for a person to have status as a 
``child'' for VA benefit purposes that person must be unmarried.
    (b) Rule inapplicable to chapter 18 benefits. The requirement that 
the child of a veteran be unmarried does not apply to benefits for 
birth defects of the children of certain veterans under 38 U.S.C. 
chapter 18 (Benefits for Children of Vietnam Veterans).
    (c) Termination of marriage. A child's marriage will not prevent a 
child from receiving benefits or a claimant or beneficiary from 
receiving benefits based on the existence of a child if the child's 
marriage:
    (1) Was void (for a definition of a ``void'' marriage, see Sec.  
5.195, ``Void marriages'');
    (2) Was annulled by a court having authority to annul marriages, 
unless VA determines that the annulment was obtained through fraud by 
either party or by collusion of the parties (see Sec.  5.196, 
``Evidence of void or annulled marriages'');
    (3) Ended by death before November 1, 1990; or
    (4) Ended by divorce before November 1, 1990, by a court with 
authority to render divorce decrees, unless VA determines that the 
divorce was obtained through fraud by either party or by collusion of 
the parties.

(Authority: 38 U.S.C. 101(4), 103(e), 501(a), 1821, 1831; Sec. 9, 
Pub. L. 93-527, 88 Stat. 1702, 1705; Sec. 8004, Pub. L. 101-508, 104 
Stat. 1388, 1388-343)

Sec.  5.229  Proof of age and birth.

    (a) Proof of birth in preferred order. The classes of evidence to 
be furnished for the purpose of establishing age or birth are listed 
below in the order of preference. Failure to furnish more preferred 
evidence, however, does not preclude the acceptance of less preferred 
evidence if the evidence furnished is sufficient to prove the point 
involved. See also Sec.  5.180(e), ``Acceptability of photocopies.''
    (1) A birth certificate (copy or abstract), subject to paragraph 
(b) of this section;
    (2) Church record of baptism (original or copy), subject to 
paragraph (b) of this section;
    (3) Service department records of birth;
    (4) An affidavit or certified statement from a physician or midwife 
present during the birth;
    (5) A copy of a Bible or other family record containing reference 
to the birth. The copy must be accompanied by a statement from a notary 
public, or other officer who has authority to administer oaths, 
certifying all the following criteria:
    (i) The year the Bible or other family record was printed;
    (ii) Whether it appears the record has been erased or changed in 
any way;
    (iii) Whether it appears the entries were made on the date noted in 
the record.
    (6) Affidavits or certified statements from two or more persons, 
preferably disinterested, who have knowledge of the name of the person 
born; the month, year, and place of birth of that person; and the 
parents' names. These persons must also provide VA with their own ages 
and an explanation as to how they came to know the facts surrounding 
the birth; or
    (7) Other reliable and convincing evidence that provides relevant 
information. This includes any of the following:
    (i) Census records.
    (ii) Hospital records.
    (iii) Insurance policies.
    (iv) School records.
    (v) Employment records.
    (vi) Naturalization records.
    (vii) Immigration records.
    (b) Overcoming lack of contemporaneous evidence. VA will accept as 
proof of age or relationship:
    (1) A copy or abstract of the public record of birth established 
more than 4 years after the birth if it is consistent with material on 
file with VA, or if it shows on its face that it is based upon evidence 
that would be acceptable under this section.
    (2) An original or a copy of a church record of baptism performed 
more than 4 years after the birth if it is consistent with material on 
file with VA. Such material must include at least one reference to age 
or relationship made when such a reference was not essential to 
establishing entitlement to the benefit claimed.

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

Sec.  5.230  Effective date of award of pension or dependency and 
indemnity compensation to, or based on the existence of, a child born 
after the veteran's death.

    (a) Applicability. The section provides the effective date of an 
award of pension or dependency and indemnity compensation (DIC) to, or 
an increase in such an award based on the existence of, a child born 
after the death of the parent-veteran upon whom eligibility for the 
award is based.
    (b) Effective date. (1) The effective date is the date the child 
was born, if VA receives either of the following within the time 
specified:
    (i) Proof of birth received within one year of the date of birth; 
or
    (ii) Notification of the expected or actual birth received within 
one year after the veteran's death, provided that the notice is 
sufficient to indicate an intent to apply for pension or DIC benefits 
described in paragraph (a) of this section.
    (2) In all other cases, the effective date of the award or increase 
is the date VA

[[Page 55073]]

receives an application for pension or DIC benefits described in 
paragraph (a) of this section.

(Authority: 38 U.S.C. 5110(a), (n))

Sec.  5.231  Effective date of reduction or discontinuance--child 
reaches age 18 or 23.

    (a) Applicability. The effective date rule in this section applies 
to the reduction or discontinuance of pension, compensation, or 
dependency and indemnity compensation required when a person no longer 
qualifies as a child for VA benefit purposes under Sec.  5.220(b) 
because the person has reached 18 years of age or is attending an 
approved educational institution and has reached 23 years of age.
    (b) Effective date. VA will pay a reduced rate or discontinue 
benefits effective on the child's 18th or 23rd birthday, as applicable.

(Authority: 38 U.S.C. 5112(a))


    Note to Sec.  5.231: For effective dates of reductions or 
discontinuance applicable when a child completes the course of 
education or otherwise terminates school attendance prior to his or 
her 23rd birthday, see Sec.  3.667 of this chapter.

Sec.  5.232  Effective date of reduction or discontinuance--terminated 
adoptions.

    (a) Applicability. The effective date rule in this section applies 
to the reduction or discontinuance of pension, compensation, or 
dependency and indemnity compensation required when a person no longer 
qualifies as a child for VA benefit purposes as an adopted child under 
Sec. Sec.  5.220(c)(3) and Sec.  5.222, ``Adoption arrangements 
recognized by VA.''
    (b) Effective date. When an adoption terminates, VA will pay a 
reduced rate or discontinue benefits on the earliest of the following 
dates, as applicable:
    (1) The day after the day the child left the custody of the 
adopting parent during the interlocutory period;
    (2) The day after the day the child left the custody of the 
adopting parent during the term of an adoption placement agreement;
    (3) The day after the date of rescission of the adoption decree; or
    (4) The day after the date of termination of the adoption placement 
agreement.

(Authority: 38 U.S.C. 5112(a))

Sec.  5.233  Effective date of reduction or discontinuance--stepchild 
no longer a member of the veteran's household.

    (a) Applicability. The effective date rule in this section applies 
to the reduction or discontinuance of pension, compensation, or 
dependency and indemnity compensation required when a person no longer 
qualifies as a child for VA benefit purposes as a stepchild under Sec.  
5.220(c)(2) because the person is no longer a member of the veteran's 
household. See Sec.  5.226(c) (defining ``member of the veteran's 
household'').
    (b) Effective date. VA will pay a reduced rate or discontinue 
benefits when a stepchild is no longer a member of the veteran's 
household effective the day following the date the child ceased being a 
member of the household.

(Authority: 38 U.S.C. 5112(a))

Sec.  5.234  Effective date of an award, reduction, or discontinuance 
of benefits based on child status due to permanent incapacity for self-
support.

    (a) Applicability. This section provides the effective dates for an 
award, a reduction, or a discontinuance of pension, compensation, or 
dependency and indemnity compensation to, or based upon the existence 
of, a person who is a ``child'' for VA benefit purposes under Sec.  
5.220(b)(2)(i) because the person became permanently incapable of self-
support before reaching the age of 18 or due to termination of such 
child status because the person is no longer incapable of self-support.
    (b) Awards.--(1) Initial awards. The effective dates of initial 
awards are governed by applicable effective date rules in Sec.  5.183, 
``Effective date for additional benefits based on the existence of a 
dependent.''
    (2) Claim for continuation of benefits. The effective date of a 
continuation of benefits previously awarded to, or based upon the 
existence of, a child after the child reaches 18 years of age is the 
date of the child's 18th birthday if VA receives an application for the 
continuation of such benefits based upon the child's permanent 
incapacity for self-support not later than one year after the child's 
18th birthday. Otherwise, the effective date is the date VA receives an 
application for benefits.
    (c) Reduction or discontinuance of VA benefits. (1) Pension 
benefits. VA will pay the reduced rate or discontinue pension benefits 
because the person recognized as a child is no longer incapable of 
self-support effective the first day of the month that follows the 
month in which VA last paid benefits.
    (2) Compensation or dependency and indemnity compensation benefits. 
VA will pay the reduced rate or discontinue compensation or dependency 
and indemnity compensation benefits because the person recognized as a 
child is no longer incapable of self-support effective the first day of 
the month following expiration of the 60-day notice period described in 
Sec.  5.83, ``Right to notice of decisions and proposed adverse 
actions.''

(Authority: 38 U.S.C. 5110, 5112)

Sec.  5.235  Effective date of an award of benefits due to termination 
of a child's marriage.

    (a) Applicability. This section states the effective dates of 
awards to, or based upon the existence of, a child when status as a 
child for the purpose of VA benefits has been restored due to 
termination of the child's marriage. See Sec.  5.228. ``Exceptions 
applicable to termination of child status based on marriage of the 
child.''
    (b) Effective date.--(1) Void marriages. If a child's marriage is 
void, the effective date of an award of benefits is the later of the 
following dates:
    (i) The date the child and the other person stopped living 
together; or
    (ii) The date VA receives an application for benefits.
    (2) Annulled marriages. If a child's marriage is annulled, the 
effective date for an award of benefits is:
    (i) The date the annulment decree became final, if VA receives an 
application for benefits within one year of that date; otherwise,
    (ii) The date VA receives an application for benefits.
    (3) Marriage terminated by death or divorce before November 1, 
1990. Awards under Sec.  5.228(c)(3) or (4) (pertaining to marriages 
terminated by death or divorce prior to November 1, 1990) are effective 
on the date VA receives an application for benefits.

(Authority: 38 U.S.C. 501(a), 5110(a), (k), (l); Sec. 9, Pub. L. 93-
527, 88 Stat. 1702, 1705; Sec. 8004, Pub. L. 101-508, 104 Stat. 
1388, 1388-343)

Sec. Sec.  5.236-5.239  [Reserved]

Parent Status


Sec.  5.240  Status as a veteran's parent.

    (a) Persons who qualify as a veteran's parent for VA purposes. 
Except as otherwise provided in this section and subject to the 
requirements of this subpart concerning proof of the relationship 
described, a parent of a veteran is one of the following:
    (1) A veteran's natural mother or father,
    (2) A veteran's mother or father through adoption, or
    (3) A person who stands in the relationship of a parent to a 
veteran, subject to the following requirements:
    (i) The person must have stood in the relationship of a parent to 
the veteran for a period of not less than 1 year at any time before the 
veteran's entry into active military service, and
    (ii) Such a relationship must have begun prior to the veteran's 
21st

[[Page 55074]]

birthday, although it may have ended before, on, or after that 
birthday.
    (b) Institutions do not qualify. VA will not recognize an 
institution as a veteran's parent, even if the institution is providing 
care for the veteran in place of a parent.
    (c) Natural parent who was not married to the other natural parent 
at the time of the veteran's birth. VA will recognize a natural parent 
who was not married to the veteran's other natural parent at the time 
of birth as a veteran's parent for VA purposes if the requirements of 
Sec.  5.221, ``Evidence to establish a parent-natural child 
relationship,'' are met and that natural parent did one or both of the 
following:
    (1) Accepted the veteran as a member of his or her household.
    (2) Provided substantial financial support to the veteran 
consistently from the date of the veteran's birth until the veteran 
reached the age of 21, married, or entered active military service.
    (d) Abandonment. VA will not provide benefits to a person based on 
that person's status as a veteran's natural or adoptive parent if that 
person abandoned the veteran unless that person subsequently assumed 
the legal and moral obligations of a parent with respect to the 
veteran. For purposes of this paragraph, abandoned means that a 
veteran's natural or adoptive parent did not assume the legal and moral 
obligations of a parent with respect to the veteran. Abandonment 
implies not just a failure to provide support, but a refusal to do so. 
It is not necessary to show that someone else assumed the parental 
relationship for abandonment to occur.
    (e) Not more than one mother and one father recognized.--(1) 
General rule. VA will recognize not more than one father and not more 
than one mother as parents of a veteran.
    (2) Different persons qualified as a veteran's mother or father at 
different times. (i) If two or more persons qualified as a veteran's 
mother or father under this section at different points in time, VA 
will recognize the person who last qualified before the veteran's last 
entry into active military service as the veteran's mother or father.
    (ii) VA will recognize a veteran's natural parent who was the last 
person to have a parental relationship to the veteran before the 
veteran last entered active military service as the mother or father of 
the veteran even though that parent's parental rights have been 
terminated by a court.
    (f) A person claims status as a veteran's mother or father under 
paragraph (a)(3) of this section while the veteran's natural or 
adoptive mother or father is still living. VA will not recognize a 
person as the veteran's mother or father under paragraph (a)(3) of this 
section if the veteran's natural or adoptive mother or father was 
living at the time the person claims to have stood in the relationship 
of a mother or father to the veteran unless the natural or adoptive 
mother or father had relinquished parental control of the veteran. For 
purposes of this paragraph, relinquished parental control means that a 
veteran's natural or adoptive parent ceased to provide for the child 
and that the parent and child relationship was broken. It is not 
necessary that a court have terminated parental rights. Relinquishment 
of control does not necessarily mean abandonment by the parent. 
However, a finding of abandonment would automatically establish 
relinquishment of control.

(Authority: 38 U.S.C. 101(5), 501(a))

Sec. Sec.  5.241-5.249  [Reserved]

[FR Doc. 06-7759 Filed 9-19-06; 8:45 am]
BILLING CODE 8320-01-P