[Federal Register Volume 73, Number 103 (Wednesday, May 28, 2008)]
[Rules and Regulations]
[Pages 30486-30492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11726]



[[Page 30486]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AL44


Survivors' and Dependents' Educational Assistance Program Period 
of Eligibility for Eligible Children and Other Miscellaneous Issues

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations governing the Survivors' and Dependents' Educational 
Assistance (DEA) program to implement statutory provisions in the 
Veterans Benefits and Health Care Improvement Act of 2000, the 
Veterans' Survivor Benefits Improvements Act of 2001, the Veterans 
Education and Benefits Expansion Act of 2001, the Veterans Benefits Act 
of 2002, and the Veterans Benefits Act of 2003. As a result of these 
statutory provisions, certain eligible children may choose the 
beginning date of their period of eligibility and eligible children who 
serve on active duty or in the National Guard may receive extensions to 
the ending date of their period of eligibility. These statutory 
provisions also allow VA to consider certain qualifying beneficiaries' 
original claims as having been filed retroactively to their eligibility 
dates. In addition, they allow certain eligible DEA beneficiaries to be 
paid for preparatory courses for tests required or used for admission 
to an institution of higher education or a graduate school. Further, 
these provisions permit eligible children to receive benefits for such 
preparatory courses even if the courses are taken before their 18th 
birthday. This document implements these provisions of law by amending 
pertinent regulations.

DATES: Effective Date: This final rule is effective May 28, 2008.
    Applicability Date: Amendments in this final rule are applied 
retroactively to conform to the effective date of statutory provisions. 
For more information concerning the dates of applicability, see the 
supplementary information section of this notice.

FOR FURTHER INFORMATION CONTACT: Diane M. Walters, Management and 
Program Analyst, Education Service, Veterans Benefits Administration, 
Department of Veterans Affairs (225C), 810 Vermont Ave. NW., Washington 
DC 20420, (202) 461-9849. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This document amends 38 CFR 21.3021, 
21.3041, and 21.4131 to include provisions implementing the Veterans 
Benefits and Health Care Improvement Act of 2000, the Veterans' 
Survivor Benefits Improvements Act of 2001, the Veterans Education and 
Benefits Expansion Act of 2001, the Veterans Benefits Act of 2002, and 
the Veterans Benefits Act of 2003. These provisions allow certain 
beneficiaries under the Survivors' and Dependents' Educational 
Assistance (DEA) program to elect the beginning date of their period of 
eligibility, to receive an adjusted effective date of payment by 
considering their claim to have been filed on their eligibility date, 
to extend their period of eligibility for qualifying periods of active 
duty service or National Guard duty, and to use DEA benefits for 
certain preparatory courses. This document also makes clarifying and 
technical revisions to these regulations, as well as to 38 CFR 21.3040 
and 21.3135.
    For consistency with other regulations, VA is amending Sec.  
21.3135(g) to clarify in paragraph (g)(2) that VA considers a stepchild 
to be a member of the veteran's household even when the stepchild is 
temporarily not living with the veteran, so long as the actions and 
intentions of the stepchild and veteran establish that normal family 
ties have been maintained during the temporary absence. In addition, 
the information relating to when a stepchild loses his or her 
eligibility if the stepchild is no longer a member of the veteran's 
household has been removed from existing paragraph (d) of Sec.  21.3041 
and placed more appropriately in paragraph (g) of Sec.  21.3135 
concerning reduction or discontinuance dates for awards of educational 
assistance allowance.
    VA is defining the acronym ``P&T'' in 38 CFR 21.3021(p) (for 
purposes of 38 CFR 21, subpart C) as variously meaning permanent and 
total ``disability,'' permanently and totally ``disabled,'' or 
permanent and total ``rating,'' when any of these terms are used in 
reference to a veteran with a service-connected disability determined 
by VA to be total for the purposes of VA disability compensation where 
the impairment is reasonably certain to continue throughout the life of 
the disabled veteran. Other definitions added to Sec.  21.3021 simply 
restate definitions provided by statute.

I. Children's DEA Period of Eligibility Beginning Date (Pub. L. 106-
419, 107-14, and 107-330)

    Under 38 U.S.C. 3512(a), an eligible child's period of eligibility 
generally begins when the child attains age 18, or on the successful 
completion of the child's secondary schooling, whichever first occurs, 
and ends on the child's 26th birthday. Prior to the enactment of the 
Veterans Benefits and Health Care Improvement Act of 2000 (Pub. L. 106-
419), the beginning date of an eligible child's period of eligibility 
for DEA benefits was defined by statute. There were no circumstances in 
which the child could elect a beginning date. Effective November 1, 
2000, Congress amended 38 U.S.C. 3512(a)(3) to allow certain eligible 
children to have an opportunity to elect the beginning date of their 
period of eligibility. The Veterans' Survivor Benefits Improvements Act 
of 2001 (Pub. L. 107-14) clarified within what time period these 
children are permitted to elect their beginning date, and the Veterans 
Benefits Act of 2002 (Pub. L.107-330) clarified the dates the child 
could elect and also instituted a default date if the child did not 
make an election within the prescribed time period. Both of these 
clarifying amendments to 38 U.S.C. 3512(a)(3) are effective retroactive 
to November 1, 2000. As provided in 38 U.S.C. 3512(a)(3), a child may 
elect his or her beginning date if--
     The service-connected death of the veteran-parent occurs 
after the child's 18th birthday and before the child's 26th birthday; 
or
     The effective date of the veteran-parent's P&T disability 
rating, or the notification to the veteran of such rating, is after the 
child's 18th birthday and before the child's 26th birthday.
    Under 38 U.S.C. 3512(a)(3), VA is required to provide written 
notice to children who are entitled to elect the beginning date of 
their period of eligibility. The written notice must advise eligible 
children of their right to choose their beginning date and inform them 
that the deadline to make an election is 60 days from the date of VA's 
written notice. A child whose eligibility is based on the veteran-
parent's death may elect as a beginning date any date between the date 
of the veteran's death and the date of VA's decision that the death was 
service-connected. A child whose eligibility is based on the veteran's 
P&T disability may elect the effective date of the P&T disability 
rating, the date of notification to the veteran of such rating, or any 
date in between those two dates. We have amended Sec.  21.3041 to 
include a new paragraph (i), which describes VA's statutory duty to 
notify children of these rights. As required by the statute, VA will 
accept the child's election if it is received no later than 60 days 
from the date of VA's written notice to the child

[[Page 30487]]

and if it is in accordance with the choices VA identified in that 
notice as permissible under the statute. Pursuant to revised Sec.  
21.3041(a)(2) and (b)(2), if VA approves the date selected by the 
child, the child's period of eligibility will be extended beyond the 
child's 26th birthday to allow for a full 8 years of eligibility after 
the date selected. Under Sec.  21.3041(i)(2), if an eligible child does 
not elect a beginning date within 60 days from the date of VA's written 
notice, the beginning date of his or her period of eligibility will 
default (in accordance with statutory provisions) to either the date of 
VA's decision that the veteran's death is service-connected or the date 
of VA's P&T rating decision, whichever is applicable.
    To permit an otherwise eligible and entitled child an immediate 
award of educational assistance under 38 U.S.C. chapter 35, we added 
Sec.  21.3041(i)(3) to provide that VA will award benefits by selecting 
as a beginning date the date of VA's decision that the--
     Veteran has a P&T disability in the case of a child whose 
eligibility is derived from a veteran with a P&T disability; or
     Veteran's death is service-connected in the case of a 
child whose eligibility is derived due to the veteran's death.
    This procedure allows us to award benefits while concurrently 
notifying the child that he or she may elect another beginning date as 
described in the preceding paragraphs and specified in the written 
notice to the child. VA is doing this to expedite payment to eligible 
children already enrolled at an educational institution and incurring 
educational expenses. The beginning dates we select are the statutorily 
required dates when the child does not elect a beginning date within 60 
days of our written notice informing the child that he or she may elect 
the beginning date. If the child does elect a beginning date within 60 
days after our written notice, we will adjust the beginning date in 
accordance with the child's election.

II. Extended Period of Eligibility for Certain Eligible Children 
Ordered to Active Duty or Full-Time National Guard Duty After September 
10, 2001 (Pub. L. 107-103 and 108-183)

    In this final rule, 38 CFR 21.3041(h) implements 38 U.S.C. 3512(h) 
as amended by the Veterans Education and Benefits Expansion Act of 2001 
(Pub. L. 107-103) and the Veterans Benefits Act of 2003 (Pub. L. 108-
183). These statutory provisions are effective November 1, 2000, and 
apply to educational assistance under DEA for months after October 
2000. The amendments provide that an eligible child's period of 
eligibility will be extended for the length of time equal in length to 
the time the child, during the period of eligibility otherwise 
applicable to such child, serves on active duty or is involuntarily 
ordered to full-time National Guard duty, plus an additional 4 months 
for each qualifying period of active duty service. This extension 
applies to children who are ordered to active duty after September 10, 
2001, under sections 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 
of title 10, U.S.C., or who are involuntarily ordered to full-time 
National Guard duty after September 10, 2001, under 32 U.S.C 502(f).

III. Adjusted Effective Date for Certain Eligible Persons (Pub. L. 106-
419)

    Based on the provisions in 38 U.S.C. 5113, as amended by the 
Veterans Benefits and Health Care Improvement Act of 2000 (Pub. L. 106-
419), 38 CFR 21.4131(e) is amended to authorize an adjusted effective 
date for an award of DEA benefits when specific conditions exist. 
Generally, educational assistance cannot be awarded retroactively for 
any period earlier than 1 year prior to the date VA receives an 
original claim; however, this amendment provides for an exception 
effective as of November 1, 2000. If the following conditions are met, 
VA may consider the individual's original DEA application as having 
been filed on his or her eligibility date for the purpose of awarding 
retroactive benefits:
     An individual's DEA eligibility date is more than 1 year 
before the date of the initial rating decision establishing DEA 
eligibility;
     VA receives the individual's original claim within 1 year 
of the date VA made the rating decision establishing DEA eligibility;
     The individual claims educational assistance for pursuit 
of an approved program during a period that is more than 1 year prior 
to the date VA receives his or her original claim; and
     The original application is received by VA on or after 
November 1, 2000, or is pending action or available remedies as of that 
date.

IV. DEA Eligible Persons May Receive DEA Benefits for Preparatory 
Courses for Admission to Institutions of Higher Education and for 
Graduate School Entrance Exams (Pub. L. 106-419)

    Effective November 1, 2000, the Veterans Benefits and Health Care 
Improvement Act of 2000 (Pub. L. 106-419) amended the definition of 
``program of education'' in 38 U.S.C. 3501(a)(5) to permit DEA eligible 
persons to use DEA benefits for preparatory courses for admission to 
institutions of higher education and for graduate school entrance 
exams. In addition, the Act amended 38 U.S.C. 3512 to provide that 
eligible children may pursue these types of courses before their 18th 
birthday. This document amends the definition of ``program of 
education'' in 38 CFR 21.3021(h) to include preparatory courses for 
admission to institutions of higher education and for graduate school 
entrance exams as authorized programs of education for DEA eligible 
persons. The provision to permit eligible children under 18 to pursue 
these courses is included in 38 CFR 21.3041(a)(1)(ii) and (b)(1)(ii).

V. Technical Amendment

    Current 38 CFR 21.3041(d)(3) prescribes a modified period of 
eligibility ending date for a child who served on active duty in the 
Armed Forces. Specifically, it provides that such a child's ending date 
is 8 years after the child's ``first unconditional discharge or 
release'' from duty in the Armed Forces. However, the governing 
statute, 38 U.S.C. 3512(a)(5), provides that the 8-year period of 
eligibility shall end after the child's ``first discharge or release'' 
from duty with the Armed Forces. The definition of ``discharge or 
release'' in 38 U.S.C. 101(18), as amended by Public Law 95-126 on 
October 8, 1977, makes retaining the word ``unconditional'' before 
``discharge or release'' unnecessary. Thus, to make the current 
regulation conform to the statute, we have removed the word 
``unconditional'' from ``unconditional discharge or release'' in this 
provision, which is now located in Sec.  21.3041(c). We also removed 38 
CFR 21.3042(c) because the paragraph is not necessary if the word 
``unconditional'' is removed from ``unconditional discharge or 
release.''

Administrative Procedure Act

    Substantive changes made by this final rule merely restate or 
interpret statutory requirements. Accordingly, there is a basis for 
dispensing with prior notice and comment and a delayed effective date 
under the provisions of 5 U.S.C. 553.

Paperwork Reduction Act of 1995

    Provisions in 38 CFR 21.3041(i)(1) constitute a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520). The Office of Management and Budget (OMB) approved this 
collection of information under control number 2900-0703.

[[Page 30488]]

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 final rule will have no such effect 
on State, local, and tribal governments, or the private sector.

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 Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more, or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action planned or taken by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, economic, legal, and policy implications 
of this final rule have been examined and it has been determined that 
it is not a significant regulatory action under the Executive Order.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This final rule primarily affects 
only individuals. This rule reflects the statutory expansion of 
Survivors' and Dependents' Educational Assistance program eligibility 
by:
     Permitting certain eligible children to elect the 
beginning date of their DEA period of eligibility;
     Extending the period of eligibility for certain eligible 
children ordered to active duty or full-time National Guard duty;
     Allowing certain beneficiaries to receive DEA benefits 
retroactive to their eligibility date; and
     Allowing eligible beneficiaries to be paid for preparatory 
courses for tests required or used for admission to institutions of 
higher education and graduate schools.
    Pursuant to 5 U.S.C. 605(b), this final rule, therefore, is exempt 
from the initial and final regulatory flexibility analyses requirements 
of sections 603 and 604. Pursuant to 5 U.S.C. 603 and 604, an 
additional reason that those regulatory flexibility analyses 
requirements are not applicable to this final rule is that no notice of 
proposed rulemaking was required by law for this rulemaking.

Catalog of Federal Domestic Assistance Program Numbers

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this final rule is 64.117, Survivors and Dependents 
Educational Assistance.

List of Subjects in 38 CFR Part 21

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

    Approved: May 20, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 21 (subparts C and D) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

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

0
1. The authority citation for part 21, subpart C continues to read as 
follows:

    Authority: 38 U.S.C. 501(a), 512, 3500-3566, and as noted in 
specific sections.


0
2. Amend Sec.  21.3021 by:
0
a. Adding an introductory paragraph.
0
b. Revising paragraph (h).
0
c. Adding new paragraphs (m), (n), (o), (p), (q), (r), and (s).
    The revision and additions read as follows:


Sec.  21.3021  Definitions.

    For the purposes of subpart C and the payment of basic educational 
assistance under 38 U.S.C. chapter 35, the following definitions apply.
* * * * *
    (h) Program of education. The term program of education means any 
curriculum or any combination of unit courses or subjects pursued at an 
educational institution that is generally accepted as necessary to 
fulfill the requirements for the attainment of a predetermined and 
identified educational, professional, or vocational objective. The term 
program of education also includes--
    (1) A preparatory course for a test that is required or used for 
admission to an institution of higher education;
    (2) A preparatory course for a test that is required or used for 
admission to a graduate school; and
    (3) A licensing or certification test, the successful completion of 
which demonstrates an individual's possession of the knowledge or skill 
required to enter into, maintain, or advance in employment in a 
predetermined and identified vocation or profession, provided such 
tests and the licensing or credentialing organizations or entities that 
offer such tests are approved by VA.

(Authority: 38 U.S.C. 3002(3), 3501 (a)(5))

* * * * *
    (m) Institution of higher education. The term institution of higher 
education has the same meaning as provided in Sec.  21.7020(b)(45).

(Authority: 38 U.S.C. 3002(3), 3501(a)(5))


    (n) Graduate school. The term graduate school has the same meaning 
as provided in Sec.  21.7020(b)(46).

(Authority: 38 U.S.C. 3002(3), 3501(a)(5))


    (o) Eligibility date. The term eligibility date means the date on 
which an individual becomes an eligible person (as defined in paragraph 
(a) of this section).

(Authority: 38 U.S.C. 5113)


    (p) P&T means permanent and total ``disability,'' permanently and 
totally ``disabled,'' or permanent and total ``rating,'' when any of 
these terms are used in reference to a veteran with a service-connected 
disability rating determined by VA to be total for the purposes of VA 
disability compensation where the impairment is reasonably certain to 
continue throughout the life of the disabled veteran.

[[Page 30489]]


(Authority: 38 U.S.C. 3501(a)(8))


    (q) Initial rating decision. The term initial rating decision 
means, with respect to an eligible spouse or child, a decision made by 
VA that establishes for the person from whom such eligibility is 
derived--
    (1) Service connection for the cause of the person's death;
    (2) A service connected P&T disability; or
    (3) For a member of the Armed Forces, a P&T disability incurred or 
aggravated in the line of duty in the active military, naval, or air 
service if the member is hospitalized or receiving outpatient medical 
care, services, or treatment, and is likely to be discharged or 
released from such service for such disability.

(Authority: 38 U.S.C. 5113)


    (r) Effective date of the P&T rating. The term effective date of 
the P&T rating means the date from which VA considers that the 
veteran's P&T disability commenced for purposes of VA benefits, as 
determined by the initial rating decision.

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


    (s) First finds. The term first finds means the effective date of 
the P&T rating or the date VA first notifies the veteran of that 
rating, whichever is more advantageous to the child.

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

* * * * *


Sec.  21.3040  [Amended]

0
3. Amend paragraph (d) of Sec.  21.3040 by removing ``Sec.  
21.3041(e)(2).'' and adding, in its place, ``Sec.  21.3041(g)(2).''


0
4. Revise Sec.  21.3041 to read as follows:


Sec.  21.3041  Periods of eligibility; child.

    (a) Eligibility derived from a veteran with a P&T disability. An 
eligible child's period of eligibility generally begins on the child's 
18th birthday, or on the successful completion of the child's secondary 
schooling, whichever first occurs. The period of eligibility generally 
ends on the earlier of the date of the child's 26th birthday or the 
date the veteran is no longer P&T disabled. VA will extend an eligible 
child's period of eligibility for the reasons listed in paragraphs (g) 
and (h) of this section. See paragraph (c) of this section if the child 
serves on duty in the Armed Forces as an eligible child after his or 
her 18th birthday and before his or her 26th birthday. If the veteran 
dies while the P&T rating is in effect and before the eligible child's 
26th birthday, see paragraph (b) of this section to determine the new 
period of eligibility. Exceptions to this general period of eligibility 
are as follows:
    (1) Period of eligibility may begin before the child's 18th 
birthday. The period of eligibility may begin before the eligible 
child's 18th birthday for one of the reasons in paragraphs (a)(1)(i), 
(ii), or (iii) of this section. The period of eligibility ends on the 
earlier of the date the veteran is no longer rated P&T disabled or the 
date of the child's 26th birthday. See Sec.  21.3135(h) if the veteran 
is no longer rated P&T disabled.
    (i) The child completed compulsory school attendance under 
applicable State law (see Sec.  21.3040(a) and (b));
    (ii) The child is pursuing a course designed to prepare him or her 
for an examination required or used for entrance into an institution of 
higher education or a graduate school; or
    (iii) The child is beyond his or her 14th birthday and has a 
physical or mental handicap (see Sec.  21.3040(a)).

(Authority 38 U.S.C. 3512(a))


    (2) Period of eligibility may begin after the child's 18th 
birthday. A child's period of eligibility may begin after his or her 
18th birthday if VA first finds the veteran has a P&T disability after 
the child's 18th birthday but before the child's 26th birthday. See 
paragraph (e) of this section if an adopted child becomes eligible 
through qualifying as the veteran's child after VA first finds the 
veteran has a P&T disability. See paragraph (f) of this section if a 
stepchild becomes eligible through qualifying as the veteran's child 
after VA first finds the veteran is P&T disabled.
    (i) Beginning date if the effective date of the initial P&T rating 
is before the child's 18th birthday and notification to the veteran 
occurs after the child's 18th birthday and before his or her 26th 
birthday. If the effective date of the P&T rating is before the child's 
18th birthday, and the date of notification to the veteran occurs after 
the child's 18th birthday but before the child's 26th birthday, the 
child may elect the beginning date of his or her period of eligibility. 
(See paragraph (i) of this section for election requirements.) If the 
child elects a beginning date that is before his or her 18th birthday, 
the period of eligibility ends the earlier of the date that the veteran 
is no longer rated P&T disabled, or the date of the child's 26th 
birthday. If the child elects a beginning date after his or her 18th 
birthday, the period of eligibility ends the earlier of the date the 
veteran is no longer rated P&T disabled or 8 years after the beginning 
date the child elects. (See Sec.  21.3135(h) if the veteran is no 
longer rated P&T disabled.) The child can elect as a beginning date 
either--
    (A) The date of his or her 18th birthday;
    (B) The date he or she completed compulsory school attendance under 
applicable State law (see Sec.  21.3040(a) and (b)), if that date is on 
or after the effective date of the P&T rating and before his or her 
18th birthday;
    (C) The date he or she begins a course designed to prepare him or 
her for an examination required or used for entrance into an 
institution of higher education or a graduate school, if that date is 
on or after the effective date of the P&T rating and before the date of 
notification to the veteran of the P&T rating. If the child elects the 
beginning date of enrollment in such course, he or she may not receive 
educational assistance for pursuit of secondary schooling unless 
secondary school pursuit is otherwise authorized (see Sec.  21.3040);
    (D) The date VA notifies the veteran of the P&T rating; or
    (E) Any date between the applicable date described in paragraphs 
(a)(2)(i)(A) through (C) of this section and the date in paragraph 
(a)(2)(i)(D) of this section.
    (ii) Beginning date if the effective date of the P&T rating is 
after the child's 18th birthday and before child's 26th birthday. If 
the effective date of the P&T rating occurs after the child's 18th 
birthday but before the child's 26th birthday, the child may elect the 
beginning date of his or her period of eligibility. (See paragraph (i) 
of this section for election requirements.) The period of eligibility 
ends the earlier of the date the veteran is no longer rated P&T 
disabled, or 8 years after the beginning date the child elects. (See 
Sec.  21.3135(h) if the veteran is no longer rated P&T disabled.) The 
child can elect as a beginning date--
    (A) The effective date of the P&T rating;
    (B) The date VA notifies the veteran of the veteran's P&T rating; 
or
    (C) Any date in between.

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


    (b) Eligibility derived as the result of veteran's death. An 
eligible child's period of eligibility begins on the child's 18th 
birthday, or on the successful completion of the child's secondary 
schooling, whichever first occurs. The period of eligibility ends on 
the child's 26th birthday. VA will extend an eligible child's period of 
eligibility for reasons shown in paragraphs (g) and (h) of this 
section. See paragraph (c) of this section if the child serves on duty 
in the Armed Forces as an eligible child after his or her 18th birthday 
and before his

[[Page 30490]]

or her 26th birthday. Exceptions to this general period of eligibility 
are as follows:
    (1) Period of eligibility may begin before the child's 18th 
birthday. The period of eligibility may begin before the eligible 
child's 18th birthday for one of the reasons in paragraphs (i), (ii), 
or (iii) of this paragraph. The ending date of the period of 
eligibility is the child's 26th birthday.
    (i) The child completed compulsory school attendance under 
applicable State law (see Sec.  21.3040(a) and (b));
    (ii) The child is pursuing a course designed to prepare him or her 
for an examination required or used for entrance into an institution of 
higher education or a graduate school; or
    (iii) The child is beyond his or her 14th birthday and has a 
physical or mental handicap (see Sec.  21.3040(a)).

(Authority 38 U.S.C. 3512(a))


    (2) Period of eligibility may begin after the child's 18th 
birthday. If the veteran's death occurs after the child's 18th birthday 
but before the child's 26th birthday, the child may elect the beginning 
date of his or her period of eligibility. The period of eligibility 
ends 8 years after the beginning date the child elects. See paragraph 
(i) of this section for election requirements. VA may extend the period 
of eligibility for one of the reasons shown in paragraph (g) or (h) of 
this section. See paragraph (c) of this section if the child serves in 
the Armed Forces as an eligible person after his or her 18th birthday 
and before his or her 26th birthday. The child can elect as a beginning 
date any date between the--
    (i) Date of the veteran's death; or
    (ii) Date of VA's decision that the veteran's death was service-
connected.

(Authority: 38 U.S.C. 3512(a)(3))


    (c) Period of eligibility for a child who serves on duty in the 
Armed Forces as an eligible person. If the child serves on duty in the 
Armed Forces as an eligible person (as defined in Sec.  21.3021(a)(1)) 
after the child's 18th birthday and before the child's 26th birthday, 
the child is eligible for a modified ending date based on the 
provisions of this paragraph. Under the provisions of this paragraph, 
the period of eligibility ends 8 years after the date of the child's 
first discharge or release from such duty, or the child's 31st 
birthday, whichever is earlier. VA may extend the ending date for one 
of the reasons shown in paragraph (g) of this section. See paragraph 
(h) of this section if the child is ordered to active duty as a 
reservist.

(Authority: 38 U.S.C. 3512(a)(5))


    (d) Eligibility derived from a parent who is listed by the Armed 
Forces as missing in action, captured in the line of duty, or forcibly 
detained or interned in line of duty by a foreign government or power. 
(1) If a child establishes eligibility through the provisions of Sec.  
21.3021(a)(1)(iv) after his or her 18th birthday but before his or her 
26th birthday, the period of eligibility will end on the earliest of 
the following dates:
    (i) When the parent is no longer listed as described in Sec.  
21.3021(a)(1)(iv);
    (ii) Eight years after the date on which the child becomes eligible 
under such provisions; or
    (iii) The child's 31st birthday.
    (2) VA may extend the ending date for one of the reasons shown in 
paragraphs (g) or (h) of this section. See Sec.  21.3135(i) if the 
child is enrolled in an educational institution and the child's ending 
date is based on paragraph (d)(1)(i) of this section. See paragraph (c) 
of this section if the child serves in the Armed Forces as an eligible 
person after his or her 18th birthday and before his or her 26th 
birthday.

(Authority: 38 U.S.C. 3512(a)(5))


    (e) Adopted child qualifies after VA firsts finds the veteran P&T 
disabled. If an adopted child becomes eligible through qualifying as 
the veteran's child (see 38 CFR 3.57(c)) and the date the child so 
becomes eligible is after VA first finds the veteran is P&T disabled, 
the beginning date of eligibility is the date determined pursuant to 
paragraphs (a) through (d) of this section, but in no event before the 
date the adopted child qualifies as the veteran's child under Sec.  
3.57(c) of this chapter. The ending date is the child's 26th birthday. 
VA may extend the period of eligibility for one of the reasons in 
paragraph (g) or (h) of this section. See paragraph (c) of this section 
if the child serves on duty in the Armed Forces as an eligible person.

(Authority: 38 U.S.C. 3501)


    (f) Stepchild qualifies after VA first finds the veteran P&T 
disabled. If a stepchild becomes eligible through qualifying as the 
veteran's child and a member of the veteran's household after VA first 
finds the veteran is P&T disabled, the beginning date of the period of 
eligibility is the date determined pursuant to paragraphs (a) through 
(d) of this section, but in no event before the date he or she becomes 
the veteran's stepchild and a member of the veteran's household. The 
ending date of the period of eligibility is the stepchild's 26th 
birthday. VA may extend the ending date for one of the reasons in 
paragraphs (g) or (h) of this section. See paragraph (c) of this 
section for the ending date of the period of eligibility if the 
stepchild serves on active duty in the Armed Forces as an eligible 
person. See Sec.  21.3135(g) for award discontinuance dates if the 
veteran and the stepchild's natural or adopted parent divorce or the 
stepchild ceases to be a member of the veteran's household.
    (g) Extensions to ending dates. (1) If an eligible child suspends 
pursuit of his or her program due to conditions that VA determined were 
beyond the child's control, VA may extend the period of eligibility 
ending date (see Sec.  21.3043). VA cannot grant an extension beyond 
age 31 to those children whose period of eligibility ending date (as 
determined under paragraphs (a) through (f) of this section) is subject 
to an age limitation.
    (2) If an eligible child's period of eligibility ending date (as 
determined under paragraphs (a) through (f), or (h) of this section) 
occurs while the child is enrolled in an educational institution, VA 
may extend the period of eligibility (extensions may be made beyond age 
31)--
    (i) To the end of the quarter or semester, for a child enrolled in 
an educational institution that regularly operates on the quarter or 
semester system; or
    (ii) To the end of the course, not to exceed 12 weeks, for a child 
who completed a major portion of a course while enrolled in an 
educational institution that operates under other than a quarter or 
semester system.
    (3) If an eligible child's period of eligibility ending date (as 
determined under paragraphs (a) through (f), or (h) of this section) 
occurs while the child is pursuing training in a training establishment 
(as defined in Sec.  21.4200(c)), VA cannot extend the ending date.

(Authority: 38 U.S.C. 3512(a)(7)(c)).


    (h) Notwithstanding any other provision of this section, if during 
an eligible child's period of eligibility, as determined in paragraphs 
(a) through (g) of this section, but after September 10, 2001, an 
eligible child is ordered to active duty or involuntarily ordered to 
full-time National Guard duty VA will grant an extension of the child's 
period of eligibility. The extension will be equal to the length of the 
period served plus an additional 4 months for each qualifying period 
and applies if after September 10, 2001, the eligible child is--
    (i) Ordered to serve on active duty under section 688, 12301(a), 
12301(d), 12301(g), 12302, or 12304 of title 10, United States Code; or

[[Page 30491]]

    (ii) Involuntarily ordered to full-time National Guard duty under 
section 502(f) of title 32, United States Code.

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


    (i) Elections. (1) VA must provide written notice to certain 
eligible children informing them of their right to elect the beginning 
date of their period of eligibility. The written notice must identify 
the beginning dates the child may choose from and must contain a 
statement that the child must make the election within 60 days of the 
date of the written notice. An eligible child may elect his or her 
beginning date if--
    (i) The effective date of the P&T rating is before the child's 18th 
birthday, and date of the notification to the veteran from whom the 
child derives eligibility occurs after the child's 18th birthday but 
before the child's 26th birthday (see paragraph (a)(2)(i) of this 
section);
    (ii) The effective date of the P&T rating, or the date of 
notification to the veteran from whom the child derives eligibility, 
occurs after the child's 18th birthday but before the child's 26th 
birthday (see paragraph (a)(2)(ii) of this section);
    (iii) The veteran's death occurs after the child's 18th birthday 
but before the child's 26th birthday (see paragraph (b)(2) of this 
section);
    (iv) The child makes such election within 60 days of VA's written 
notice to the child informing him or her of the right to elect his or 
her beginning date; and
    (v) The child's election is in accordance with the choices VA 
identified in the written notice described in paragraph (i)(1) of this 
section.
    (2) If the child does not elect a beginning date within 60 days of 
VA's written notice informing him or her of the right to elect a 
beginning date, the period of eligibility beginning date will be 
whichever of the following applies-(i) The date of VA's decision that 
the veteran has a P&T disability; or
    (ii) The date of VA's decision that the veteran's death is service-
connected.
    (3) If upon review of the child's application VA determines the 
child is entitled to and eligible for an immediate award of educational 
assistance under 38 U.S.C. chapter 35, VA will for purposes of such 
award--
    (i) Consider the beginning date of the child's period of 
eligibility to be the date of VA's decision that the--
    (A) Veteran has a P&T disability in the case of a child whose 
eligibility is derived from a veteran with a P&T disability; or
    (B) Veteran's death is service-connected in the case of a child 
whose eligibility is derived due to the veteran's death.
    (ii) Notify the child of his or her right to elect a beginning date 
in accordance with paragraph (i)(1) of this section.
    (iii) Adjust the child's beginning date based on the child's 
election if the child makes an election within 60 days after VA's 
written notice in accordance with paragraph (i)(1) of this section.

(Authority: 38 U.S.C. 3512(A)(3), (A)(4))


    (The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-0703).


Sec.  21.3042  [Amended]

0
5. Amend Sec.  21.3042 by removing paragraph (c).


0
6. Amend Sec.  21.3135 by revising paragraph (g) to read as follows:


Sec.  21.3135  Reduction or discontinuance dates for awards of 
educational assistance allowance.

* * * * *
    (g) Eligible stepchild ceases to be a stepchild or stepchild ceases 
to be a member of the veteran's household. (1) If the child ceases to 
be the veteran's stepchild because the veteran and the stepchild's 
natural or adoptive parent divorce, the eligibility ending date is as 
follows:
    (i) If the child ceases to be the veteran's stepchild while the 
child is not in training, the ending date of the child's period of 
eligibility is the date on which the child ceases to be the veteran's 
stepchild.
    (ii) If the child ceases to be the veteran's stepchild while the 
child is training in a school organized on a term, semester, or quarter 
basis, the ending date of the child's eligibility is the last day of 
the term, semester, or quarter during which the child ceases to be the 
veteran's stepchild.
    (iii) If the child ceases to be the veteran's stepchild while the 
child is training in a school not organized on a term, semester, or 
quarter basis, the ending date of the child's eligibility is the end of 
the course, or 12 weeks from the date on which the child ceases to be 
the veteran's stepchild, whichever is earlier.
    (2) If the stepchild ceases to be a member of the veteran's 
household, he or she is no longer eligible. For purposes of this 
paragraph, VA considers a stepchild a member of the veteran's household 
even when the stepchild is temporarily not living with the veteran, so 
long as the actions and intentions of the stepchild and veteran 
establish that normal family ties have been maintained during the 
temporary absence. VA will determine the stepchild's eligibility ending 
date as follows:
    (i) If the stepchild ceases to be a member of the veteran's 
household while the stepchild is not in training, the eligibility 
ending date is the date on which the stepchild ceases to be a member of 
the veteran's household.
    (ii) If the stepchild ceases to be a member of the veteran's 
household while the stepchild is training in a school organized on a 
term, semester, or quarter basis, the ending date of the stepchild's 
eligibility is the last day of the term, semester, or quarter during 
which the stepchild ceases to be a member of the veteran's household.
    (iii) If the stepchild ceases to be a member of the veteran's 
household while the stepchild is training in a school not organized on 
a term, semester, or quarter basis, the ending date of the stepchild's 
eligibility is the end of the course, or 12 weeks from the date on 
which the stepchild ceases to be a member of the veteran's household. 
See Sec.  21.3041(f).

(Authority: 38 U.S C. 101(4)(a), 3501)

* * * * *

Subpart D--Administration of Educational Assistance Programs

0
7. The authority citation for part 21, subpart D continues to read as 
follows:

    Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 
30, 32, 34, 35, 36, and as noted in specific sections.


0
8. Amend Sec.  21.4131 in paragraph (d)(1)(i)(A) by removing ``by Sec.  
21.3041(a) or (b) or by'' and adding, in its place, ``under Sec.  
21.3041 or under'' and by adding paragraph (e) to read as follows:


Sec.  21.4131  Commencing dates.

* * * * *
    (e) Adjusted effective date for award of educational assistance 
under 38 U.S.C. chapter 35 based on an original claim. When determining 
the commencing date under Sec.  21.4131(d)(1), the Secretary will 
consider an eligible person's application for Survivors' and 
Dependents' Educational Assistance under 38 U.S.C. chapter 35 as having 
been filed on his or her eligibility date if--
    (1) The eligibility date is more than 1 year before the date of the 
initial rating decision that establishes either:
    (i) The veteran's death is service-connected, or
    (ii) The veteran has a P&T disability;
    (2) The eligible person files his or her original application for 
benefits under

[[Page 30492]]

38 U.S.C. chapter 35 with VA within 1 year of the initial rating 
decision;
    (3) The eligible person claims educational assistance for pursuit 
of an approved program of education for a period that is more than 1 
year before the date VA receives his or her original claim;
    (4) VA either:
    (i) Received the original application on or after November 1, 2000; 
or
    (ii) Received the original application and, as of November 1, 2000, 
either--
    (A) Had not acted on it; or
    (B) Had denied it in whole or in part, but the claimant remained 
entitled to pursue available administrative and judicial remedies as to 
the denial; and
    (5) The eligible person would have been eligible to educational 
assistance under 38 U.S.C. chapter 35 if he or she had filed a claim on 
his or her eligibility date.

(Authority: 38 U.S.C. 5113; Pub. L. 106-419, 114 Stat. 1832)

* * * * *
 [FR Doc. E8-11726 Filed 5-27-08; 8:45 am]
BILLING CODE 8320-01-P