Code of Federal Regulations, Title 38
This infobase is current through August 9, 2006
CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS
PART 0 -- STANDARDS OF ETHICAL CONDUCT AND RELATED
RESPONSIBILITIES (§§ 0.735-1 - 0.735-12)
PART 1 -- GENERAL PROVISIONS (§§ 1.9 - 1.994)
PART 2 -- DELEGATIONS OF AUTHORITY (§§ 2.1 - 2.101)
PART 3 -- ADJUDICATION (§§ 3.1 - 3.2600)
PART 4 -- SCHEDULE FOR RATING DISABILITIES (§§ 4.1 - 4.150)
PART 6 -- UNITED STATES GOVERNMENT LIFE INSURANCE (§§ 6.1 - 6.21)
PART 7 -- SOLDIERS' AND SAILORS' CIVIL RELIEF (§§ 7.2 - 7.8)
PART 8 -- NATIONAL SERVICE LIFE INSURANCE (§§ 8.0 - 8.33)
PART 8A -- VETERANS MORTGAGE LIFE INSURANCE (§§ 8a.1 - 8a.4)
PART 9 -- SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS'
GROUP LIFE INSURANCE (§§ 9.1 - 9.14)
PART 10 -- ADJUSTED COMPENSATION (§§ 10.0 - 10.53)
PART 11 -- LOANS BY BANKS ON AND PAYMENT OF ADJUSTED SERVICE
CERTIFICATES (§§ 11.75 - 11.130)
PART 12 -- DISPOSITION OF VETERAN'S PERSONAL FUNDS AND EFFECTS (§§
12.0 - 12.24)
PART 13 -- VETERANS BENEFITS ADMINISTRATION, FIDUCIARY ACTIVITIES
(§§ 13.1 - 13.111)
PART 14 -- LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS
CLAIMS (§§ 14.500 - 14.810)
PART 15 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE
DEPARTMENT OF VETERAN AFFAIRS (§§ 15.101 - 15.171)
PART 16 -- PROTECTION OF HUMAN SUBJECTS (§§ 16.101 - 16.124)
PART 17 -- MEDICAL (§§ 17.30 - 17.1008)
PART 18 -- NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF
THE DEPARTMENT OF VETERANS AFFAIRS -- EFFECTUATION OF TITLE
VI OF THE CIVIL RIGHTS ACT OF 1964 (§§ 18.1 - 18.550)
PART 18A -- DELEGATION OF RESPONSIBILITY IN CONNECTION WITH TITLE
VI, CIVIL RIGHTS ACT OF 1964 (§§ 18a.1 - 18a.5)
PART 18B -- PRACTICE AND PROCEDURE UNDER TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964 AND PART 18 OF THIS CHAPTER (§§ 18b.1 - 18b.95)
PART 19 -- BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS (§§ 19.1
- 19.102)
PART 20 -- BOARD OF VETERANS' APPEALS: RULES OF PRACTICE (§§ 20.1 20.1411)
PART 21 -- VOCATIONAL REHABILITATION AND EDUCATION (§§ 21.1 21.8410)
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PART 23 -- NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE (§§ 23.100 - 23.605)
PART 25 -- UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY
ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
PART 26 -- ENVIRONMENTAL EFFECTS OF THE DEPARTMENT OF VETERANS
AFFAIRS (VA) ACTIONS (§§ 25.1 - 26.9)
PART 36 -- LOAN GUARANTY (§§ 36.4201 - 36.4709)
PART 38 -- NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS
AFFAIRS (§§ 38.600 - 38.633)
PART 39 -- AID TO STATES FOR ESTABLISHMENT, EXPANSION, AND
IMPROVEMENT OF VETERANS' CEMETERIES (§§ 39.1 - 39.26)
PART 40 -- INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF VETERANS
AFFAIRS PROGRAMS AND ACTIVITIES (§§ 40.1 - 40.13)
PART 41 -- AUDITING REQUIREMENTS (§§ 41.1 - 41.20)
PART 42 -- STANDARDS IMPLEMENTING THE PROGRAM FRAUD CIVIL
REMEDIES ACT (§§ 42.1 - 42.47)
PART 43 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND
COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS (§§
43.1 - 43.52)
PART 44 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT) (§§ 44.25 - 44.1020)
PART 45 -- NEW RESTRICTIONS ON LOBBYING (§§ 45.100 - 45.605)
PART 46 -- POLICY REGARDING PARTICIPATION IN NATIONAL
PRACTITIONER DATA BANK (§§ 46.1 - 46.8)
PART 47 -- POLICY REGARDING REPORTING HEALTH CARE PROFESSIONALS
TO STATE LICENSING BOARDS (§§ 47.1 - 47.2)
PART 48 -- GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE
WORKPLACE (FINANCIAL ASSISTANCE) (§§ 48.100 - 48.670)
PART 49 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND
AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS,
AND OTHER NON-PROFIT ORGANIZATIONS
PART 51 -- PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE
HOMES (§§ 51.1 - 51.210)
PART 52 -- PER DIEM FOR ADULT DAY HEALTH CARE OF VETERANS IN
STATE HOMES (§§ 52.1 - 52.220)
PART 58 -- FORMS (§§ 58.10 - 58.17)
PART 59 -- GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF
STATE HOMES (§§ 59.1 - 59.170)
PART 60 -- FISHER HOUSES AND OTHER TEMPORARY LODGING (§§ 60.1 60.10)
PART 61 -- VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM (§§
61.0 - 61.82)
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TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS
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CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS
PART 0 -- STANDARDS OF ETHICAL CONDUCT AND RELATED
RESPONSIBILITIES
PART 1 -- GENERAL PROVISIONS
PART 2 -- DELEGATIONS OF AUTHORITY
PART 3 -- ADJUDICATION
PART 4 -- SCHEDULE FOR RATING DISABILITIES
PART 6 -- UNITED STATES GOVERNMENT LIFE INSURANCE
PART 7 -- SOLDIERS' AND SAILORS' CIVIL RELIEF
PART 8 -- NATIONAL SERVICE LIFE INSURANCE
PART 8A -- VETERANS MORTGAGE LIFE INSURANCE
PART 9 -- SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS'
GROUP LIFE INSURANCE
PART 10 -- ADJUSTED COMPENSATION
PART 11 -- LOANS BY BANKS ON AND PAYMENT OF ADJUSTED SERVICE
CERTIFICATES
PART 12 -- DISPOSITION OF VETERAN'S PERSONAL FUNDS AND EFFECTS
PART 13 -- VETERANS BENEFITS ADMINISTRATION, FIDUCIARY
ACTIVITIES
PART 14 -- LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS
CLAIMS
PART 15 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE
DEPARTMENT OF VETERAN AFFAIRS
PART 16 -- PROTECTION OF HUMAN SUBJECTS
PART 17 -- MEDICAL
PART 18 -- NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS
OF THE DEPARTMENT OF VETERANS AFFAIRS -- EFFECTUATION OF
TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
PART 18A -- DELEGATION OF RESPONSIBILITY IN CONNECTION WITH
TITLE VI, CIVIL RIGHTS ACT OF 1964
PART 18B -- PRACTICE AND PROCEDURE UNDER TITLE VI OF THE CIVIL
RIGHTS ACT OF 1964 AND PART 18 OF THIS CHAPTER
PART 19 -- BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
PART 20 -- BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
PART 21 -- VOCATIONAL REHABILITATION AND EDUCATION
PART 23 -- NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE
PART 25 -- UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY
ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
PART 26 -- ENVIRONMENTAL EFFECTS OF THE DEPARTMENT OF
VETERANS AFFAIRS (VA) ACTIONS
PART 36 -- LOAN GUARANTY
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PART 39 -- AID TO STATES FOR ESTABLISHMENT, EXPANSION, AND
IMPROVEMENT OF VETERANS' CEMETERIES
PART 40 -- INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF
VETERANS AFFAIRS PROGRAMS AND ACTIVITIES
PART 41 -- AUDITS OF STATES, LOCAL GOVERNMENTS, AND
NON-PROFIT ORGANIZATIONS
PART 42 -- STANDARDS IMPLEMENTING THE PROGRAM FRAUD CIVIL
REMEDIES ACT
PART 43 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS
AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL
GOVERNMENTS
PART 44 -- GOVERNMENTWIDE DEBARMENT AND SUSPENSION
(NONPROCUREMENT)
PART 45 -- NEW RESTRICTIONS ON LOBBYING
PART 46 -- POLICY REGARDING PARTICIPATION IN NATIONAL
PRACTITIONER DATA BANK
PART 47 -- POLICY REGARDING REPORTING HEALTH CARE
PROFESSIONALS TO STATE LICENSING BOARDS
PART 48 -- GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE
WORKPLACE (FINANCIAL ASSISTANCE)
PART 49 -- UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS
AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION,
HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS
PART 51 -- PER DIEM FOR NURSING HOME CARE OF VETERANS IN STATE
HOMES
PART 52 -- PER DIEM FOR ADULT DAY HEALTH CARE OF VETERANS IN
STATE HOMES
PART 58 -- FORMS
PART 59 -- GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF
STATE HOMES
PART 60 -- FISHER HOUSES AND OTHER TEMPORARY LODGING
PART 61 -- VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM
[PUBLISHER'S NOTE: Nomenclature changes to chapter I appear at 54 FR 34978, Aug.
23, 1989; 57 FR 31006, July 13, 1992; 57 FR 38606, Aug. 26, 1992; 57 FR 43616, Sept.
22, 1992; 64 FR 30244, June 7, 1999; 65 FR 1544, 1545, Jan. 11, 2000; 66 FR 44052,
44053, Aug. 22, 2001; 66 FR 66763, 66767, Dec. 27, 2001; 67 FR 16023, Apr. 4, 2002.]
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PART 0 -- STANDARDS OF ETHICAL CONDUCT AND RELATED
RESPONSIBILITIES
SUBPART A -- GENERAL PROVISIONS
SUBPART B -- STANDARDS OF ETHICAL CONDUCT AND RELATED
RESPONSIBILITIES OF EMPLOYEES
5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and 502(a) of E.O. 12674, 54 FR
15159, 3 CFR, 1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR,
1990 Comp., p. 306.
EDITORIAL NOTE: Nomenclature changes to Part 0 appear at 61 FR 7216, Feb. 27,
1996.
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SUBPART A -- GENERAL PROVISIONS
§ 0.735-1 Agency ethics officials.
§ 0.735-2 Government-wide standards.
§ 0.735-1 Agency ethics officials.
(a) Designated Agency Ethics Official (DAEO). The Assistant General Counsel (023) is
the designated agency ethics official (DAEO) for the Department of Veterans Affairs.
The Deputy Assistant General Counsel (023C) is the alternate DAEO, who is designated
to act in the DAEO's absence. The DAEO has primary responsibility for the
administration, coordination, and management of the VA ethics program, pursuant to 5
CFR 2638.201-204.
(b) Deputy ethics officials. (1) The Regional Counsel are deputy ethics officials. They
have been delegated the authority to act for the DAEO within their jurisdiction, under the
DAEO's supervision, pursuant to 5 CFR 2638.204.
(2) The alternate DAEO, the DAEO's staff, and staff in the Offices of Regional Counsel,
may also act as deputy ethics officials pursuant to delegations of one or more of the
DAEO's duties from the DAEO or the Regional Counsel.
[31 FR 5828, Apr. 15, 1966, as amended at 33 FR 3173, Feb. 20, 1968; 58 FR 61813,
Nov. 23, 1993; 61 FR 7215, 7216, Feb. 27, 1996; as redesignated at 61 FR 11308, 11309,
March 20, 1996]
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, which substituted
"Regional Counsel" for "District Counsel" in this section, became effective Oct. 1, 1995;
61 FR 11308, 11309, March 20, 1996, which redesignated this section, became effective
March 20, 1996.]
[CROSS REFERENCE: This section was formerly § 0.735-3.]
§ 0.735-2 Government-wide standards.
For government-wide standards of ethical conduct and related responsibilities for Federal
employees, see 5 CFR Part 735 and Chapter XVI.
[61 FR 11308, 11309, March 20, 1996; redesignated at 63 FR 33579, June 19, 1998]
[EFFECTIVE DATE NOTE: 63 FR 33579, June 19, 1998, redesignated this section,
effective June 19, 1998.]
[CROSS REFERENCE: This section was formerly § 0.735-3.]
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SUBPART B -- STANDARDS OF ETHICAL CONDUCT AND
RELATED RESPONSIBILITIES OF EMPLOYEES
§ 0.735-10 Cross-reference to employee ethical and other conduct standards and
financial disclosure regulations.
§ 0.735-11 Other conduct on the job.
§ 0.735-12 Standards of conduct in special areas
§ 0.735-10 Cross-reference to employee ethical and other conduct standards and
financial disclosure regulations.
Employees of the Department of Veterans Affairs (VA) should refer to the executive
branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the executive branch-wide
Employee Responsibilities and Conduct at 5 CFR part 735, and the executive
branch-wide financial disclosure regulation at 5 CFR part 2634.
[31 FR 5828, Apr. 15, 1966, as amended at 33 FR 18375, Dec. 11, 1968; 58 FR 61814,
Nov. 23, 1993]
[EFFECTIVE DATE NOTE: 58 FR 61814, Nov. 23, 1993, which revised this section,
provides that the revision is effective Nov. 23, 1993.]
§ 0.735-11 Other conduct on the job.
Relationship with beneficiaries and claimants. Employees are expected to be helpful to
beneficiaries, patients and claimants, but:
(a) An employee shall not procure intoxicants or drugs for, or attempt to sell intoxicants
or drugs to, patients or members, or give or attempt to give intoxicants or drugs to them
unless officially prescribed for medical use;
(b) An employee shall not abuse patients, members, or other beneficiaries, whether or not
provoked.
[31 FR 5828, Apr. 15, 1966, as amended at 33 FR 3173, Feb. 20, 1968; 33 FR 18375,
Dec. 11, 1968; 58 FR 61814, Nov. 23, 1993]
[EFFECTIVE DATE NOTE: 58 FR 61814, Nov. 23, 1993, which revised this section,
provides that the revision is effective Nov. 23, 1993.]
§ 0.735-12 Standards of conduct in special areas
(a) Safety. (1) Employees will observe safety instructions, signs, and normal safety
practices and precautions, including the use of protective clothing and equipment.
(2) An employee shall report each work-connected injury, accident or disease he or she
suffers.
(b) Furnishing testimony. Employees will furnish information and testify freely and
honestly in cases respecting employment and disciplinary matters. Refusal to testify,
concealment of material facts, or willfully inaccurate testimony in connection with an
investigation or hearing may be ground for disciplinary action. An employee, however,
will not be required to give testimony against himself or herself in any matter in which
there is indication that he or she may be or is involved in a violation of law wherein there
is a possibility of self-incrimination.
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Subparts C and D [Removed]
4. Subparts C and D are removed.
[FR Doc. 93-27912 Filed 11-22-93; 8:45 am]
BILLING CODE 8320-01-U
[31 FR 5828, Apr. 15, 1966, as amended at 33 FR 3173, Feb. 20, 1968; 33 FR 14780, Oct.
3, 1968; 42 FR 2314, Jan. 11, 1977; 58 FR 61814, Nov. 23, 1993]
[EFFECTIVE DATE NOTE: 58 FR 61814, Nov. 23, 1993, which revised this section,
provides that the revision is effective Nov. 23, 1993.]
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PART 1 -- GENERAL PROVISIONS
DEPARTMENT OF VETERANS AFFAIRS OFFICIAL SEAL AND
DISTINGUISHING FLAG
THE UNITED STATES FLAG FOR BURIAL PURPOSES
QUARTERS FOR DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
OVERSEAS
PROGRAM EVALUATION
REFERRALS OF INFORMATION REGARDING CRIMINAL VIOLATIONS
SECURITY AND LAW ENFORCEMENT AT DEPARTMENT OF VETERANS
AFFAIRS FACILITIES
PARKING FEES AT VA MEDICAL FACILITIES
RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS RECORDS RELATING TO DRUG ABUSE, ALCOHOLISM OR
ALCOHOL ABUSE, INFECTION WITH THE HUMAN IMMUNODEFICIENCY
VIRUS (HIV), OR SICKLE CELL ANEMIA
Disclosures With Patient's Consent
Disclosures Without Patient Consent
Court Orders Authorizing Disclosures and Use
RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS CLAIMANT RECORDS
RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS RECORDS OTHER THAN CLAIMANT RECORDS
SAFEGUARDING PERSONAL INFORMATION IN DEPARTMENT OF
VETERANS AFFAIRS RECORDS
INVENTIONS BY EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS
ADMINISTRATIVE CONTROL OF FUNDS
USE OF OFFICIAL MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN
HOMELESS CLAIMANTS
APPEALS FROM DECISIONS OF CONTRACTING OFFICERS UNDER THE
CONTRACT DISPUTES ACT OF 1978
PART-TIME CAREER EMPLOYMENT PROGRAM
STANDARDS FOR COLLECTION, COMPROMISE, SUSPENSION OR
TERMINATION OF COLLECTION EFFORT, AND REFERRAL OF CIVIL
CLAIMS FOR MONEY OR PROPERTY
STANDARDS FOR COLLECTION OF CLAIMS
STANDARDS FOR COLLECTION OF CLAIMS
STANDARDS FOR COMPROMISE OF CLAIMS
STANDARDS FOR SUSPENDING OR TERMINATING COLLECTION
REFERRALS TO GAO, DEPARTMENT OF JUSTICE, OR IRS
REGIONAL OFFICE COMMITTEES ON WAIVERS AND COMPROMISES
SALARY OFFSET PROVISIONS
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
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Sections 1.650 to 1.666 issued under sect. 1, 66 Stat. 811, 72 Stat. 1114; 35 U.S.C. 266;
15 U.S.C. 3710a; 38 U.S.C. 501; E.O. 10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953
Comp.
EDITORIAL NOTE: Nomenclature changes to Part 1 appear at 61 FR 7216, Feb.27,
1996.
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DEPARTMENT OF VETERANS AFFAIRS OFFICIAL SEAL AND
DISTINGUISHING FLAG
§ 1.9 Description, use, and display of VA Seal and Flag.
§ 1.9 Description, use, and display of VA Seal and Flag.
(a) General. This section describes the official seal and distinguishing flag of the of the
Department of Veterans Affairs, and prescribes the rules for their custody and use.
(b) Definitions.
(1) VA means all organizational units of the Department of Veterans Affairs.
(2) Embossed seal means an image of the official seal made on paper or other medium by
using an embosser with a negative and positive die to create a raised impression.
(3) Official seal means the original(s) of the VA seal showing the exact form, content,
and colors thereof.
(4) Replica means a copy of the official seal displaying the identical form, content, and
colors thereof.
(5) Reproduction means a copy of the official seal displaying the identical form and
content, reproduced in only one color.
(6) Secretary means the Secretary of Veterans Affairs.
(7) Deputy Secretary means the Deputy Secretary of Veterans Affairs.
(c) Custody of official seal and distinguishing flags. The Secretary or designee shall:
(1) Have custody of:
(i) The official seal and prototypes thereof, and masters, molds, dies, and other means of
producing replicas, reproductions, and embossing seals and
(ii) Production, inventory, and loan records relating to items specified in paragraph
(c)(1)(i) of this section, and
(2) Have custody of distinguishing flags, and be responsible for production, inventory,
and loan records thereof.
(d) Official Seal.
(1) Description of official seal. The Department of Veterans Affairs prescribes as its
official seal, of which judicial notice shall be taken pursuant to 38 U.S.C. 302, the imprint
illustrated below:
Click to view image
(i) The official seal includes an American eagle clutching a cord in its talons. The cord
binds a 13-star U.S. flag and a 50-star U.S. flag. In the field over the eagle is a pentagon
formation of stars, with one point down. The words Department of Veterans Affairs and
United States of America surround the eagle, stars, and flags. A rope motif makes up the
outermost ring of the seal.
(ii) The eagle represents the eternal vigilance of all our nation's veterans. The stars
represent the five branches of military service. The crossed flags represent our nation's
history. The gold cord that binds the two flags, which is shown clutched in the eagle's
talons is symbolic of those who have fallen in the defense of liberty. Each of the various
individual items placed together in the seal is a salute to the past, present, and future.
(iii) The colors used in the configuration are gold, brown, blue, white, silver, yellow,
black, and red.
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(iv) The colors are derived from the American flag and from nature. By invoking this
symbolism, the color scheme represents the Nation's commitment to its veterans.
(2) Use of the official seal, replicas, reproductions, and embossing seals.
(i) The Secretary or designees are authorized to affix replicas, reproductions, and
embossed seals to appropriate documents, certifications, and other material for all
purposes as authorized by this section.
(ii) Replicas may be used only for:
(A) Display in or adjacent to VA facilities, in Department auditoriums, presentation
rooms, hearing rooms, lobbies, and public document rooms.
(B) Offices of senior officials.
(C) Official VA distinguishing flags, adopted and utilized pursuant to paragraph (e)(2) of
this section.
(D) Official awards, certificates, medals, and plaques.
(E) Motion picture film, video tape, and other audiovisual media prepared by or for VA
and attributed thereto.
(F) Official prestige publications which represent the achievements or mission of VA.
(G) For other similar official purposes.
(H) For such other purposes as will tend to advance the aims, purposes and mission of the
Department of Veterans Affairs as determined by the Secretary or Deputy Secretary.
(iii) Reproductions may be used only on:
(A) VA letterhead stationery.
(B) Official VA identification cards and security credentials.
(C) Business cards for VA employees.
(D) Official VA signs.
(E) Official publications or graphics issued by and attributed to VA, or joint statements of
VA with one or more Federal agencies, State or local governments, or foreign
governments.
(F) Official awards, certificates, and medals.
(G) Motion picture film, video tape, and other audiovisual media prepared by and for VA
and attributed thereto.
(H) For other similar official purposes.
(I) For such other purposes as will tend to advance the aims, purposes and mission of the
Department of Veterans Affairs as determined by the Secretary or Deputy Secretary.
(iv) Use of the official seal and embossed seals:
(A) Embossed seals may be used only on VA legal documents, including interagency or
intergovernmental agreements with States, foreign patent applications, and similar
official documents.
(B) The official seal may be used only for those purposes related to the conduct of
Departmental affairs in furtherance of the VA mission.
(e) Distinguishing flag.
(1) Description of distinguishing flag.
(i) The base or field of the flag shall be blue and a replica of the official seal shall appear
on both sides thereof.
(ii) A Class 1 flag shall be of nylon banner, measure 4'4" on the hoist by 5'6" on the fly,
exclusive of heading and hems, and be fringed on three edges with nylon fringe, 2 1/2 "
wide.
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(iii) A Class 2 flag shall be of nylon banner, measure 3' on the hoist by 5' on the fly,
exclusive of heading and hems, and be fringed on three edges with nylon fringe, 2 1/2 "
wide.
(iv) Each flag shall be manufactured in accordance with Department of Veterans Affairs
Specification X-497G. The replica of the official seal shall be screen printed or
embroidered on both sides.
(2) Use of distinguishing flag.
(i) VA distinguishing flags may be used only:
(A) In the offices of the Secretary, Deputy Secretary, Assistant Secretaries, Deputy
Assistant Secretaries and heads of field locations designated below:
(1) Regional Offices.
(2) Medical Centers and Outpatient Clinics.
(3) Domiciliaries.
(4) Marketing Centers and Supply Depots.
(5) Data Processing Centers.
(6) National Cemetery Offices.
(7) Other locations as designated by the Deputy Assistant Secretary for Administration.
(B) At official VA ceremonies.
(C) In Department auditoriums, official presentation rooms, hearing rooms, lobbies,
public document rooms, and in non-VA facilities in connection with events or displays
sponsored by VA, and public appearances of VA officials.
(D) On or in front of VA installation buildings.
(E) Other such official VA purposes or purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined by the Deputy
Assistant Secretary for Administration.
(f) Unauthorized uses of the seal and flag.
(1) The official seal, replicas, reproductions, embossed seals, and the distinguished flag
shall not be used, except as authorized by the Secretary or Deputy Secretary, in
connection with:
(i) Contractor-operated facilities.
(ii) Souvenir or novelty items.
(iii) Toys or commercial gifts or premiums.
(iv) Letterhead design, except on official Departmental stationery.
(v) Matchbook covers, calendars and similar items.
(vi) Civilian clothing or equipment.
(vii) Any article which may disparage the seal or flag or reflect unfavorably upon VA.
(viii) Any manner which implies Departmental endorsement of commercial products or
services, or of the commercial user's policies or activities.
(2) Penalties for unauthorized use. Any person who uses the distinguishing flag, or the
official seal, replicas, reproductions or embossed seals in a manner inconsistent with this
section shall be subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017,
providing penalties for their wrongful use, as applicable.
[55 FR 49518, Nov. 29, 1990]
(38 U.S.C. 302, 38 U.S.C. 501)
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THE UNITED STATES FLAG FOR BURIAL PURPOSES
§ 1.10 Eligibility for and disposition of the United States flag for burial purposes.
§ 1.10 Eligibility for and disposition of the United States flag for burial purposes.
(a) Eligibility for burial flags -- (1) Persons eligible. (i) A veteran of any war, of Mexican
border service, or of service after January 31, 1955, discharged or released from active
duty under conditions other than dishonorable. (For the purpose of this section, the term
Mexican border service means active military, naval, or air service during the period
beginning on January 1, 1911, and ending on April 5, 1917, in Mexico, on the borders
thereof, or in the waters adjacent thereto.)
(ii) A peacetime veteran discharged or released, before June 27, 1950, from the active
military, naval, or air service, under conditions other than dishonorable, after serving at
least one enlistment, or for a disability incurred or aggravated in line of duty.
(iii) Any person who has died while in military or naval service of the United States after
May 27, 1941. This subdivision authorizes and requires the furnishing of a flag only
where the military or naval service does not furnish a flag immediately. The only cases
wherein a flag is not supplied immediately are those of persons whose remains are
interred outside the continental limits of the United States, or whose remains are not
recovered or are recovered and not identified.
(iv) Any person who served in the organized military forces of the Commonwealth of the
Philippines while such forces were in the service of the Armed Forces of the United
States pursuant to the military order of the President of the United States, dated July 26,
1941, including among such military forces organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the Commander in Chief,
Southwest Pacific Area, or other competent authority in the Army of the United States,
and who dies after separation from such service under conditions other than dishonorable,
on or after April 25, 1951.
(Authority: 38 U.S.C. 107(a))
(v) Any deceased member or former member of the Selected Reserve (as described in
section 10143 of title 10) who is not otherwise eligible for a flag under this section or
section 1482(a) of title 10 and who:
(A) Completed at least one enlistment as a member of the Selected Reserve or, in the case
of an officer, completed the period of initial obligated service as a member of the
Selected Reserve;
(B) Was discharged before completion of the person's initial enlistment as a member of
the Selected Reserve or, in the case of an officer, period of initial obligated service as a
member of the Selected Reserve, for a disability incurred or aggravated in the line of duty;
or
(C) Died while a member of the Selected Reserve.
(Authority: 38 U.S.C. 2301(f)(1))
(b) Disposition of burial flags. (1) When a flag is actually used to drape the casket of a
deceased veteran, it must be delivered to the next of kin following interment. Where the
flag is not claimed by the next of kin it may be given upon request to a close friend or
associate of the deceased veteran. Such action will constitute final and conclusive
determination of rights under this section. (38 U.S.C. 2301)
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(2) The phrase next of kin for the purpose of disposing of the flag used for burial
purposes is defined as follows, with preference to entitlement in the order listed:
(i) Widow or widower.
(ii) Children, according to age (minor child may be issued a flag on application signed by
guardian).
(iii) Parents, including adoptive, stepparents, and foster parents.
(iv) Brothers or sisters, including brothers or sisters of the halfblood.
(v) Uncles or aunts.
(vi) Nephews or nieces.
(vii) Others -- cousins, grandparents, etc. (but not in-laws).
(3) The phrase close friend or associate for the purpose of disposing of the burial flag
means any person who because of his or her relationship with the deceased veteran
arranged for the burial or assisted in the burial arrangements. In the absence of a person
falling in either of these categories, any person who establishes by evidence that he or she
was a close friend or associate of the veteran may be furnished the burial flag. Where
more than one request for the burial flag is received and each is accompanied by
satisfactory evidence of relationship or association, the head of the field facility having
jurisdiction of the burial flag quota will determine which applicant is the one most
equitably entitled to the burial flag.
[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24 FR 10106, Dec.
15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27, 1977; 66 FR 27598, May
18, 2001]
(72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)
[EFFECTIVE DATE NOTE: 66 FR 27598, May 18, 2001, added paragraph (a)(1)(v),
effective Oct. 17, 1998.]
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QUARTERS FOR DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
OVERSEAS
§ 1.11 Quarters for Department of Veterans Affairs employees in Government-owned
or -rented buildings overseas.
§ 1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee of the Department
of Veterans Affairs permanently stationed in a foreign country may be furnished, without
cost to him or her, living quarters, including heat, fuel, and light, in a Government-owned
or -rented building. When in the interest of the service and when administratively feasible,
an agreement may be entered into by the Under Secretary for Benefits or designee with
another Federal agency, which is authorized to furnish quarters, to provide such quarters
for Department of Veterans Affairs employees under the provisions of 31 U.S.C. 686.
Quarters provided will be in lieu of any living quarters allowance to which the employee
may otherwise be entitled.
[33 FR 362, Jan. 10, 1968]
(72 Stat. 1114; 38 U.S.C. 501)
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PROGRAM EVALUATION
§ 1.15 Standards for program evaluation.
§ 1.17 Evaluation of studies relating to health effects of dioxin and
radiation exposure.
§ 1.18 Guidelines for establishing presumptions of service connection for former
prisoners of war.
§ 1.15 Standards for program evaluation.
(a) The Department of Veterans Affairs will evaluate all programs authorized under title
38 U.S.C. These evaluations will be conducted so as to determine each program's
effectiveness in achieving its stated goals and in achieving such goals in relation to their
cost. In addition, these evaluations will determine each program's impact on related
programs and its structure and mechanism for delivery of services. All programs will be
evaluated on a continuing basis and all evaluations will be conducted by Department of
Veterans Affairs staff assigned to an organizational entity other than those responsible for
program administration. These evaluations will be conducted with sufficient frequency to
allow for an assessment of the continued effectiveness of the programs.
(b) The program evaluation will be designed to determine if the existing program
supports the intent of the law. A program evaluation must identify goals and objectives
that support this intent, contain a method to measure fulfillment of the objectives,
ascertain the degree to which goals and objectives are met, and report the findings and
conclusions to Congress, as well as make them available to the public.
(c) The goals must be clear, specific, and measurable. To be clear they must be readily
understood, free from doubt or confusion, and specific goals must be explicitly set forth.
They must be measurable by objective means. These means can include use of existing
record systems, observations, and information from other sources.
(d) All program evaluations require a detailed evaluation plan. The evaluation plan must
clearly state the objectives of the program evaluation, the methodology to be used,
resources to be committed, and a timetable of major phases.
(e) Each program evaluation must be objective. It must report the accomplishments as
well as the shortcomings of the program in an unbiased way. The program evaluation
must have findings that give decision-makers information which is of a level of detail and
importance to enable decisions to be made affecting either direction or operation. The
information in the program evaluation must be timely, and must contain information of
sufficient currency that decisions based on the data in the evaluation can be made with a
high degree of confidence in the data.
(f) Each program evaluation requires a systematic research design to collect the data
necessary to measure the objectives. This research design should conform to the
following:
(1) Rationale. The research design for each evaluation should contain a specific rationale
and should be structured to determine possible cause and effect relationships.
(2) Relevancy. It must deal with issues currently existing within the program, within the
Department, and within the environment in which the program operates.
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(3) Validity. The degree of statistical validity should be assessed within the research
design. Alternatives include an assessment of cost of data collection vs. results necessary
to support decisions.
(4) Reliability. Use of the same research design by others should yield the same findings.
(g) The final program evaluation report will be reviewed for comments and concurrence
by relevant organizations within the Department of Veterans Affairs, but in no case
should this review unreasonably delay the results of the evaluation. Where disagreement
exists, the dissenting organization's position should be summarized for a decision by the
Secretary.
(h) The final program evaluation report will be forwarded, with approved
recommendations, to the concerned organization. An action plan to accomplish the
approved recommendations will be forwarded for evaluation by the evaluating entity.
(i) Program evaluation results should be integrated to the maximum extent possible into
Department of Veterans Affairs plans and budget submissions to ensure continuity with
other Department of Veterans Affairs management processes.
[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
(38 U.S.C. 527)
§ 1.17 Evaluation of studies relating to health effects of dioxin and radiation
exposure.
(a) From time to time, the Secretary shall publish evaluations of scientific or medical
studies relating to the adverse health effects of exposure to a herbicide containing 2, 3, 7,
8 tetrachlorodibenzo-p-dioxin (dioxin) and/or exposure to ionizing radiation in the
"Notices" section of the Federal Register.
(b) Factors to be considered in evaluating scientific studies include:
(1) Whether the study's findings are statistically significant and replicable.
(2) Whether the study and its findings have withstood peer review.
(3) Whether the study methodology has been sufficiently described to permit replication
of the study.
(4) Whether the study's findings are applicable to the veteran population of interest.
(5) The views of the appropriate panel of the Scientific Council of the Veterans' Advisory
Committee on Environmental Hazards.
(c) When the Secretary determines, based on the evaluation of scientific or medical
studies and after receiving the advice of the Veterans' Advisory Committee on
Environmental Hazards and applying the reasonable doubt doctrine as set forth in
paragraph (d)(1) of this section, that a significant statistical association exists between
any disease and exposure to a herbicide containing dioxin or exposure to ionizing
radiation, §§ 3.311a or 3.311b of this title, as appropriate, shall be amended to provide
guidelines for the establishment of service connection.
(d)(1) For purposes of paragraph (c) of this section a significant statistical association
shall be deemed to exist when the relative weights of valid positive and negative studies
permit the conclusion that it is at least as likely as not that the purported relationship
between a particular type of exposure and a specific adverse health effect exists.
(2) For purposes of this paragraph a valid study is one which:
(i) Has adequately described the study design and methods of data collection, verification
and analysis;
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(ii) Is reasonably free of biases, such as selection, observation and participation biases;
however, if biases exist, the investigator has acknowledged them and so stated the study's
conclusions that the biases do not intrude upon those conclusions; and
(iii) Has satisfactorily accounted for known confounding factors.
(3) For purposes of this paragraph a valid positive study is one which satisfies the criteria
in paragraph (d)(2) of this section and whose findings are statistically significant at a
probability level of .05 or less with proper accounting for multiple comparisons and
subgroup analyses.
(4) For purposes of this paragraph a valid negative study is one which satisfies the criteria
in paragraph (d)(2) of this section and has sufficient statistical power to detect an
association between a particular type of exposure and a specific adverse health effect if
such an association were to exist.
(e) For purposes of assessing the relative weights of valid positive and negative studies,
other studies affecting epidemiological assessments including case series, correlational
studies and studies with insufficient statistical power as well as key mechanistic and
animal studies which are found to have particular relevance to an effect on human organ
systems may also be considered.
(f) Notwithstanding the provisions of paragraph (d) of this section, a significant statistical
association may be deemed to exist between a particular exposure and a specific disease
if, in the Secretary's judgment, scientific and medical evidence on the whole supports
such a decision.
[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989]
(38 U.S.C. 501; Pub. L. 98-542)
Sections 1.955 to 1.970 issued under 38 U.S.C. 3720(a)(4) and 5302; 5 U.S.C. 5584.
§ 1.18 Guidelines for establishing presumptions of service connection for former
prisoners of war.
i
Discussion and Analysis in the Veterans Benefits Manual
(a) Purpose. The Secretary of Veterans Affairs will establish presumptions of service
connection for former prisoners of war when necessary to prevent denials of benefits in
significant numbers of meritorious claims.
(b) Standard. The Secretary may establish a presumption of service connection for a
disease when the Secretary finds that there is at least limited/suggestive evidence that
an increased risk of such disease is associated with service involving detention or
internment as a prisoner of war and an association between such detention or
internment and the disease is biologically plausible.
(1) Definition. The phrase ``limited/suggestive evidence'' refers to evidence of a sound
scientific or medical nature that is reasonably suggestive of an association between
prisoner-of-war experience and the disease, even though the evidence may be limited
because matters such as chance, bias, and confounding could not be ruled out with
confidence or because the relatively small size of the affected population restricts the
data available for study.
(2) Examples. ``Limited/suggestive evidence'' may be found where one high-quality
study detects a statistically significant association between the prisoner-of-war
experience and disease, even though other studies may be inconclusive. It also may be
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satisfied where several smaller studies detect an association that is consistent in
magnitude and direction. These examples are not exhaustive.
(c) Duration of detention or internment. In establishing a presumption of service
connection under paragraph (b) of this section, the Secretary may, based on sound
scientific or medical evidence, specify a minimum duration of detention or internment
necessary for application of the presumption.
(d) Association. The requirement in paragraph (b) of this section that an increased risk
of disease be ``associated'' with prisoner-of- war service may be satisfied by evidence that
demonstrates either a statistical association or a causal association.
(e) Evidence. In making determinations under paragraph (b) of this section, the
Secretary will consider, to the extent feasible:
(1) Evidence regarding the increased incidence of disease in former prisoners of war;
(2) Evidence regarding the health effects of circumstances or hardships similar to those
experienced by prisoners of war (such as malnutrition, torture, physical abuse, or
psychological stress);
(3) Evidence regarding the duration of exposure to circumstances or hardships
experienced by prisoners of war that is associated with particular health effects; and
(4) Any other sound scientific or medical evidence the Secretary considers relevant.
(f) Evaluation of studies. In evaluating any study for the purposes of this section, the
Secretary will consider:
(1) The degree to which the study's findings are statistically significant;
(2) The degree to which any conclusions drawn from the study data have withstood
peer review;
(3) Whether the methodology used to obtain the data can be replicated;
(4) The degree to which the data may be affected by chance, bias, or confounding
factors; and
(5) The degree to which the data may be relevant to the experience of prisoners of war
in view of similarities or differences in the circumstances of the study population.
(g) Contracts for Scientific Review and Analysis. To assist in making determinations
under this section, the Secretary may contract with an appropriate expert body to
review and summarize the scientific evidence, and assess the strength thereof,
concerning the association between detention or internment as a prisoner of war and the
occurrence of any disease, or for any other purpose relevant to the Secretary's
determinations.
[69 FR 60083, Oct. 7, 2004]
(38 U.S.C. 501(a), 1110)
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REFERRALS OF INFORMATION REGARDING CRIMINAL VIOLATIONS
§ 1.200 Purpose.
§ 1.201 Employee's duty to report.
§ 1.203 Information to be reported to VA Police.
§ 1.204 Information to be reported to the Office of Inspector General.
§ 1.205 Notification to the Attorney General or United States Attorney's Office.
§ 1.200 Purpose.
This subpart establishes a duty upon and sets forth the mechanism for VA employees to
report information about actual or possible criminal violations to appropriate law
enforcement entities.
[68 FR 17549, 17550, Apr. 10, 2003]
(5 U.S.C. App. 3, 38 U.S.C. 902)
[EFFECTIVE DATE NOTE: 68 FR 17549, 17550, Apr. 10, 2003, added this section,
effective Apr. 10, 2003.]
§ 1.201 Employee's duty to report.
All VA employees with knowledge or information about actual or possible violations of
criminal law related to VA programs, operations, facilities, contracts, or information
technology systems shall immediately report such knowledge or information to their
supervisor, any management official, or directly to the Office of Inspector General.
[68 FR 17549, 17550, Apr. 10, 2003]
(5 U.S.C. App. 3, 38 U.S.C. 902)
[EFFECTIVE DATE NOTE: 68 FR 17549, 17550, Apr. 10, 2003, added this section,
effective Apr. 10, 2003.]
§ 1.203 Information to be reported to VA Police.
Information about actual or possible violations of criminal laws related to VA programs,
operations, facilities, or involving VA employees, where the violation of criminal law
occurs on VA premises, will be reported by VA management officials to the VA police
component with responsibility for the VA station or facility in question. If there is no VA
police component with jurisdiction over the offense, the information will be reported to
Federal, state or local law enforcement officials, as appropriate.
[68 FR 17549, 17551, Apr. 10, 2003]
(38 U.S.C. 902)
[EFFECTIVE DATE NOTE: 68 FR 17549, 17551, Apr. 10, 2003, added this section,
effective Apr. 10, 2003.]
§ 1.204 Information to be reported to the Office of Inspector General.
Criminal matters involving felonies will also be immediately referred to the Office of
Inspector General, Office of Investigations. VA management officials with information
about possible criminal matters involving felonies will ensure and be responsible for
prompt referrals to the OIG. Examples of felonies include but are not limited to, theft of
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Government property over $ 1000, false claims, false statements, drug offenses, crimes
involving information technology systems and serious crimes against the person, i.e.,
homicides, armed robbery, rape, aggravated assault and serious physical abuse of a VA
patient.
[68 FR 17549, 17551, Apr. 10, 2003]
(5 U.S.C. App. 3)
[EFFECTIVE DATE NOTE: 68 FR 17549, 17551, Apr. 10, 2003, added this section,
effective Apr. 10, 2003.]
§ 1.205 Notification to the Attorney General or United States Attorney's Office.
VA police and/or the OIG, whichever has primary responsibility within VA for
investigation of the offense in question, will be responsible for notifying the appropriate
United States Attorney's Office, pursuant to 28 U.S.C. 535.
[68 FR 17549, 17551, Apr. 10, 2003]
(5 U.S.C. App. 3, 38 U.S.C. 902)
[EFFECTIVE DATE NOTE: 68 FR 17549, 17551, Apr. 10, 2003, added this section,
effective Apr. 10, 2003.]
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SECURITY AND LAW ENFORCEMENT AT DEPARTMENT OF VETERANS
AFFAIRS FACILITIES
§ 1.218 Security and law enforcement at VA facilities.
§ 1.218 Security and law enforcement at VA facilities.
(a) Authority and rules of conduct. Pursuant to 38 U.S.C. 901, the following rules and
regulations apply at all property under the charge and control of VA (and not under the
charge and control of the General Services Administration) and to all persons entering in
or on such property. The head of the facility is charged with the responsibility for the
enforcement of these rules and regulations and shall cause these rules and regulations to
be posted in a conspicuous place on the property.
(1) Closing property to public. The head of the facility, or designee, shall establish
visiting hours for the convenience of the public and shall establish specific hours for the
transaction of business with the public. The property shall be closed to the public during
other than the hours so established. In emergency situations, the property shall be closed
to the public when reasonably necessary to ensure the orderly conduct of Government
business. The decision to close a property during an emergency shall be made by the head
of the facility or designee. The head of the facility or designee shall have authority to
designate areas within a facility as closed to the public.
(2) Recording presence. Admission to property during periods when such property is
closed to the public will be limited to persons authorized by the head of the facility or
designee. Such persons may be required to sign a register and/or display identification
documents when requested to do so by VA police, or other authorized individual. No
person, without authorization, shall enter upon or remain on such property while the
property is closed. Failure to leave such premises by unauthorized persons shall
constitute an offense under this paragraph.
(3) Preservation of property. The improper disposal of rubbish on property; the spitting
on the property; the creation of any hazard on property to persons or things; the throwing
of articles of any kind from a building; the climbing upon the roof or any part of the
building, without permission; or the willful destruction, damage, or removal of
Government property or any part thereof, without authorization, is prohibited. The
destruction, mutilation, defacement, injury, or removal of any monument, gravestone, or
other structure within the limits of any national cemetery is prohibited.
(4) Conformity with signs and emergency conditions. The head of the facility, or
designee, shall have authority to post signs of a prohibitory and directory nature. Persons,
in and on property, shall comply with such signs of a prohibitory or directory nature, and
during emergencies, with the direction of police authorities and other authorized officials.
Tampering with, destruction, marring, or removal of such posted signs is prohibited.
(5) Disturbances. Conduct on property which creates loud or unusual noise; which
unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices,
elevators, stairways, or parking lots; which otherwise impedes or disrupts the
performance of official duties by Government employees; which prevents one from
obtaining medical or other services provided on the property in a timely manner; or the
use of loud, abusive, or otherwise improper language; or unwarranted loitering, sleeping,
or assembly is prohibited. In addition to measures designed to secure voluntary
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terminations of violations of this paragraph the head of the facility or designee may cause
the issuance of orders for persons who are creating a disturbance to depart the property.
Failure to leave the premises when so ordered constitutes a further disturbance within the
meaning of this rule, and the offender is subject to arrest and removal from the premises.
(6) Gambling. Participating in games for money or for tangible or intangible things, or
the operating of gambling devices, the conduct of a lottery or pool, or the selling or
purchasing of numbers tickets, in or on property is prohibited.
(7) Alcoholic beverages and narcotics. Operating a motor vehicle on property by a person
under the influence of alcoholic beverages, narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines is prohibited. Entering property under the influence of any
narcotic drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic beverage
(unless prescribed by a physician) is prohibited. The use on property of any narcotic drug,
hallucinogen, marijuana, barbiturate, or amphetamine (unless prescribed by a physician)
is prohibited. The introduction or possession of alcoholic beverages or any narcotic drug,
hallucinogen, marijuana, barbiturate, and amphetamine on property is prohibited, except
for liquor or drugs prescribed for use by medical authority for medical purposes.
Provided such possession is consistent with the laws of the State in which the facility is
located, liquor may be used and maintained in quarters assigned to employees as their
normal abode, and away from the abode with the written consent of the head of the
facility which specifies a special occasion for use and limits the area and period for the
authorized use.
(8) Soliciting, vending, and debt collection. Soliciting alms and contributions,
commercial soliciting and vending of all kinds, displaying or distributing commercial
advertising, or collecting private debts in or on property is prohibited. This rule does not
apply to (i) national or local drives for funds for welfare, health, or other purposes as
authorized under Executive Order 12353, Charitable Fund Raising (March 23, 1982), as
amended by Executive Order 12404 (February 10, 1983), and regulations issued by the
Office of Personnel Management implementing these Executive Orders; (ii) concessions
or personal notices posted by employees on authorized bulletin boards; and (iii)
solicitation of labor organization membership or dues under 5 U.S.C. chapter 71.
(9) Distribution of handbills. The distributing of materials such as pamphlets, handbills,
and/or flyers, and the displaying of placards or posting of materials on bulletin boards or
elsewhere on property is prohibited, except as authorized by the head of the facility or
designee or when such distributions or displays are conducted as part of authorized
Government activities.
(10) Photographs for news, advertising, or commercial purposes. Photographs for
advertising or commercial purposes may be taken only with the written consent of the
head of the facility or designee. Photographs for news purposes may be taken at entrances,
lobbies, foyers, or in other places designated by the head of the facility or designee.
(11) Dogs and other animals. Dogs and other animals, except seeing-eye dogs, shall not
be brought upon property except as authorized by the head of the facility or designee.
(12) Vehicular and pedestrian traffic. Drivers of all vehicles in or on property shall drive
in a careful and safe manner at all times and shall comply with the signals and directions
of police and all posted traffic signs. The blocking of entrances, driveways, walks,
loading platforms, or fire hydrants in or on property is prohibited; parking in
unauthorized locations or in locations reserved for other persons or contrary to the
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direction of posted signs is prohibited. Creating excessive noise on hospital or cemetery
premises by muffler cut out, the excessive use of a horn, or other means is prohibited.
Operation of a vehicle in a reckless or unsafe manner, drag racing, bumping, overriding
curbs, or leaving the roadway is prohibited.
(13) Weapons and explosives. No person while on property shall carry firearms, other
dangerous or deadly weapons, or explosives, either openly or concealed, except for
official purposes.
(14) Demonstrations. (i) All visitors are expected to observe proper standards of decorum
and decency while on VA property. Toward this end, any service, ceremony, or
demonstration, except as authorized by the head of the facility or designee, is prohibited.
Jogging, bicycling, sledding and other forms of physical recreation on cemetery grounds
is prohibited.
(ii) For the purpose of the prohibition expressed in this paragraph, unauthorized
demonstrations or services shall be defined as, but not limited to, picketing, or similar
conduct on VA property; any oration or similar conduct to assembled groups of people,
unless the oration is part of an authorized service; the display of any placards, banners, or
foreign flags on VA property unless approved by the head of the facility or designee;
disorderly conduct such as fighting, threatening, violent, or tumultuous behavior,
unreasonable noise or coarse utterance, gesture or display or the use of abusive language
to any person present; and partisan activities, i.e., those involving commentary or actions
in support of, or in opposition to, or attempting to influence, any current policy of the
Government of the United States, or any private group, association, or enterprise.
(15) Key security. The head of the facility of designee, will determine which employees,
by virtue of their duties, shall have access to keys or barrier-card keys which operate
locks to rooms or areas on the property. The unauthorized possession, manufacture,
and/or use of such keys or barrier cards is prohibited. The surreptitious opening or
attempted opening of locks or card-operated barrier mechanisms is prohibited.
(16) Sexual misconduct. Any act of sexual gratification on VA property involving two or
more persons, who do not reside in quarters on the property, is prohibited. Acts of
prostitution or solicitation for acts of prostitution on VA property is prohibited. For the
purposes of this paragraph, an act of prostitution is defined as the performance or the
offer or agreement to perform any sexual act for money or payment.
(b) Schedule of offenses and penalties. Conduct in violation of the rules and regulations
set forth in paragraph (a) of this section subjects an offender to arrest and removal from
the premises. Whomever shall be found guilty of violating these rules and regulations
while on any property under the charge and control of VA is subject to a fine as stated in
the schedule set forth herein or, if appropriate, the payment of fixed sum in lieu of
appearance (forfeiture of collateral) as may be provided for in rules of the United States
District Court. Violations included in the schedule of offenses and penalties may also
subject an offender to a term of imprisonment of not more than six months, as may be
determined appropriate by a magistrate or judge of the United States District Court:
(1) Improper disposal of rubbish on property, $ 200.
(2) Spitting on property, $ 25.
(3) Throwing of articles from a building or the unauthorized climbing upon any part of a
building, $ 50.
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(4) Willful destruction, damage, or removal of Government property without
authorization, $ 500.
(5) Defacement, destruction, mutilation or injury to, or removal, or disturbance of,
gravemarker or headstone, $ 500.
(6) Failure to comply with signs of a directive and restrictive nature posted for safety
purposes, $ 50.
(7) Tampering with, removal, marring, or destruction of posted signs, $ 150.
(8) Entry into areas posted as closed to the public or others (trespass), $ 50.
(9) Unauthorized demonstration or service in a national cemetery or on other VA
property, $ 250.
(10) Creating a disturbance during a burial ceremony, $ 250.
(11) Disorderly conduct which creates loud, boisterous, and unusual noise, or which
obstructs the normal use of entrances, exits, foyers, offices, corridors, elevators, and
stairways or which tends to impede or prevent the normal operation of a service or
operation of the facility, $ 250.
(12) Failure to depart premises by unauthorized persons, $ 50.
(13) Unauthorized loitering, sleeping or assembly on property, $ 50.
(14) Gambling-participating in games of chance for monetary gain or personal property;
the operation of gambling devices, a pool or lottery; or the taking or giving of bets, $ 200.
(15) Operation of a vehicle under the influence of alcoholic beverages or nonprescribed
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $ 500.
(16) Entering premises under the influence of alcoholic beverages or narcotic drugs,
hallucinogens, marijuana, barbiturates or amphetamines, $ 200.
(17) Unauthorized use on property of alcoholic beverages or narcotic drugs,
hallucinogens, marijuana, barbiturates, or amphetamines, $ 300.
(18) Unauthorized introduction on VA controlled property of alcoholic beverages or
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines or the
unauthorized giving of same to a patient or beneficiary, $ 500.
(19) Unauthorized solicitation of alms and contributions on premises, $ 50.
(20) Commercial soliciting or vending, or the collection of private debts on property, $
50.
(21) Distribution of pamphlets, handbills, and flyers, $ 25.
(22) Display of placards or posting of material on property, $ 25.
(23) Unauthorized photography on premises, $ 50.
(24) Failure to comply with traffic directions of VA police, $ 25.
(25) Parking in spaces posted as reserved for physically disabled persons, $ 50.
(26) Parking in no-parking areas, lanes, or crosswalks so posted or marked by yellow
borders or yellow stripes, $ 25.
(27) Parking in emergency vehicle spaces, areas and lanes bordered in red or posted as
EMERGENCY VEHICLES ONLY or FIRE LANE, or parking within 15 feet of a fire
hydrant, $ 50.
(28) Parking within an intersection or blocking a posted vehicle entrance or posted exit
lane, $ 25.
(29) Parking in spaces posted as reserved or in excess of a posted time limit, $ 15.
(30) Failing to come to a complete stop at a STOP sign, $ 25.
(31) Failing to yield to a pedestrian in a marked and posted crosswalk, $ 25.
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(32) Driving in the wrong direction on a posted one-way street, $ 25.
(33) Operation of a vehicle in a reckless or unsafe manner, too fast for conditions, drag
racing, overriding curbs, or leaving the roadway, $ 100.
(34) Exceeding posted speed limits:
(i) By up to 10 mph, $ 25.
(ii) By up to 20 mph, $ 50.
(iii) By over 20 mph, $ 100.
(35) Creating excessive noise in a hospital or cemetery zone by muffler cut out, excessive
use of a horn, or other means, $ 50.
(36) Failure to yield right of way to other vehicles, $ 50.
(37) Possession of firearms, carried either openly or concealed, whether loaded or
unloaded (except by Federal or State law enforcement officers on official business, $ 500.
(38) Introduction or possession of explosives, or explosive devices which fire a projectile,
ammunition, or combustibles, $ 500.
(39) Possession of knives which exceed a blade length of 3 inches; switchblade knives;
any of the variety of hatchets, clubs and hand-held weapons; or brass knuckles, $ 300.
(40) The unauthorized possession of any of the variety of incapacitating liquid or
gas-emitting weapons, $ 200.
(41) Unauthorized possession, manufacture, or use of keys or barrier card-type keys to
rooms or areas on the property, $ 200.
(42) The surreptitious opening, or attempted opening, of locks or card-operated barrier
mechanisms on property, $ 500.
(43) Soliciting for, or the act of, prostitution, $ 250.
(44) Any unlawful sexual activity, $ 250.
(45) Jogging, bicycling, sledding or any recreational physical activity conducted on
cemetery grounds, $ 50.
(c) Enforcement procedures. (1) VA administration directors will issue policies and
operating procedures governing the proper exercise of arrest and other law enforcement
actions, and limiting the carrying and use of weapons by VA police officers. VA police
officers found qualified under respective VA administration directives and duly
appointed heads of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce these
rules and regulations and other Federal laws on VA property in accordance with the
policies and operating procedures issued by respective VA administration directors and
under the direction of the head of the facility.
(2) VA administration directors will prescribe training for VA police officers of the scope
and duration necessary to assure the proper exercise of the law enforcement and arrest
authority vested in them and to assure their abilities in the safe handling of situations
involving patients and the public in general. VA police officers will successfully
complete prescribed training in law enforcement procedures and the safe handling of
patients as a condition of their retention of statutory law enforcement and arrest authority.
(3) Nothing contained in the rules and regulations set forth in paragraph (a) of this section
shall be construed to abrogate any other Federal laws or regulations, including
assimilated offenses under 18 U.S.C. 13, or any State or local laws and regulations
applicable to the area in which the property is situated.
[50 FR 29226, July 18, 1985]
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(38 U.S.C. 901)
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PARKING FEES AT VA MEDICAL FACILITIES
§ 1.300 Purpose.
§ 1.301 Definitions.
§ 1.302 Applicability and scope.
§ 1.303 Policy.
§ 1.300 Purpose.
Sections 1.300 through 1.303 prescribe policies and procedures for establishing parking
fees for the use of Department of Veterans Affairs controlled parking spaces at VA
medical facilities.
[53 FR 25490, July 7, 1988]
(38 U.S.C. 501, 8109)
§ 1.301 Definitions.
As used in §§ 1.300 through 1.303 of this title:
(a) Secretary means the Secretary of Veterans Affairs.
(b) Eligible person means any individual to whom the Secretary is authorized to furnish
medical examination or treatment.
(c) Garage means a structure or part of a structure in which vehicles may be parked.
(d) Medical facility means any facility or part thereof which is under the jurisdiction of
the Secretary for the provision of health-care services, including any necessary buildings
and structures, garage or parking facility.
(e) Parking facilities includes all surface and garage parking spaces at a VA medical
facility.
(f) Volunteer worker means an individual who performs services, without compensation,
under the auspices of VA Voluntary Service (VAVS) at a VA medical facility, for the
benefit of veterans receiving care at that medical facility.
[53 FR 25490, July 7, 1988]
(38 U.S.C. 8109)
§ 1.302 Applicability and scope.
(a) The provisions of §§ 1.300 through 1.303 apply to VA medical facility parking
facilities in the United States, its territories and possessions, and the Commonwealth of
Puerto Rico, and to such parking facilities for the use of VA medical facilities jointly
shared by VA and another Federal agency when the facility is operated by the VA.
Sections 1.300 through 1.303 apply to all users of those parking facilities. Fees shall be
assessed and collected at medical facilities where parking garages are constructed,
acquired, or altered at a cost exceeding $ 500,000 (or, in the case of acquisition by lease,
$ 100,000 per year). The Secretary, in the exercise of official discretion, may also
determine that parking fees shall be charged at any other VA medical facility.
(b) All fees established shall be reasonable under the circumstances and shall cover all
parking facilities used in connection with such VA medical facility.
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[53 FR 25490, July 7, 1988]
(38 U.S.C. 8109)
§ 1.303 Policy.
(a) General. Parking spaces at VA medical facilities shall only be provided under the
following conditions:
(1) VA and its employees shall not be liable for any damages to vehicles (or their
contents) parked in VA parking facilities, unless such damages are directly caused by
such employees acting in the course of their VA employment.
(2) Parking facilities at VA medical facilities shall only be made available at each
medical facility for such periods and under such terms as prescribed by the facility
director, consistent with §§ 1.300 through 1.303.
(3) VA will limit parking facilities at VA medical facilities to the minimum necessary,
and administer those parking facilities in full compliance with ridesharing regulations and
Federal laws.
(b) Fees. (1) As provided in § 1.302, VA will assess VA employees, contractor
employees, tenant employees, visitors, and other individuals having business at a VA
medical facility where VA parking facilities are available, a parking fee for the use of that
parking facility. All parking fees shall be set at a rate which shall be equivalent to
one-half of the appropriate fair rental value (i.e., monthly, weekly, daily, hourly) for the
use of equivalent commercial space in the vicinity of the medical facility, subject to the
terms and conditions stated in paragraph (a) of this section. Fair rental value shall include
an allowance for the costs of management of the parking facilities. The Secretary will
determine the fair market rental value through use of generally accepted appraisal
techniques. If the appraisal establishes that there is no comparable commercial rate
because of the absence of commercial parking facilities within a two-mile radius of the
medical facility, then the rate established shall be not less than the lowest rate charged for
parking at the VA medical facility with the lowest established parking fees. Rates
established shall be reviewed biannually by the Secretary to reflect any increase or
decrease in value as determined by appraisal updating.
(2) No parking fees shall be established or collected for parking facilities used by or for
vehicles of the following:
(i) Volunteer workers in connection with such workers performing services for the
benefit of veterans receiving care at the medical facility;
(ii) A veteran or an eligible person in connection with such veteran or eligible person
receiving examination or treatment;
(iii) An individual transporting a veteran or eligible person seeking examination or
treatment; and
(iv) Federal Government employees using Government owned or leased or private
vehicles for official business.
[53 FR 25490, July 7, 1988]
(38 U.S.C. 8109)
——————————
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RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS RECORDS RELATING TO DRUG ABUSE, ALCOHOLISM OR
ALCOHOL ABUSE, INFECTION WITH THE HUMAN IMMUNODEFICIENCY
VIRUS (HIV), OR SICKLE CELL ANEMIA
§ 1.460 Definitions.
§ 1.461 Applicability.
§ 1.462 Confidentiality restrictions.
§ 1.463 Criminal penalty for violations.
§ 1.464 Minor patients.
§ 1.465 Incompetent and deceased patients.
§ 1.466 Security for records.
§ 1.467 Restrictions on the use of identification cards and public signs.
§ 1.468 Relationship to Federal statutes protecting research subjects against
compulsory disclosure of their identity.
§ 1.469 Patient access and restrictions on use.
§ 1.470 [Reserved]
§ 1.471 [Reserved]
§ 1.472 [Reserved]
§ 1.473 [Reserved]
§ 1.474 [Reserved]
38 USC 1751-1754 and 7331-7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.460 Definitions.
For purposes of §§ 1.460 through 1.499 of this part, the following definitions apply:
Alcohol abuse. The term "alcohol abuse" means the use of an alcoholic beverage which
impairs the physical, mental, emotional, or social well-being of the user.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Contractor. The term "contractor" means a person who provides services to VA such as
data processing, dosage preparation, laboratory analyses or medical or other professional
services. Each contractor shall be required to enter into a written agreement subjecting
such contractor to the provisions of §§ 1.460 through 1.499 of this part; 38 U.S.C. 5701
and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).
Diagnosis. The term "diagnosis" means any reference to an individual's alcohol or drug
abuse or to a condition which is identified as having been caused by that abuse or any
reference to sickle cell anemia or infection with the human immunodeficiency virus
which is made for the purpose of treatment or referral for treatment. A diagnosis prepared
for the purpose of treatment or referral for treatment but which is not so used is covered
by §§ 1.460 through 1.499 of this part. These regulations do not apply to a diagnosis of
drug overdose or alcohol intoxication which clearly shows that the individual involved is
not an alcohol or drug abuser (e.g., involuntary ingestion of alcohol or drugs or reaction
to a prescribed dosage of one or more drugs).
Disclose or disclosure. The term "disclose" or "disclosure" means a communication of
patient identifying information, the affirmative verification of another person's
communication of patient identifying information, or the communication of any
information from the record of a patient who has been identified.
Drug abuse. The term "drug abuse" means the use of a psychoactive substance for other
than medicinal purposes which impairs the physical, mental, emotional, or social
well-being of the user.
Infection with the human immunodeficiency virus (HIV). The term "infection with the
human immunodeficiency virus (HIV)" means the presence of laboratory evidence for
human immunodeficiency virus infection. For the purposes of §§ 1.460 through 1.499 of
this part, the term includes the testing of an individual for the presence of the virus or
antibodies to the virus and information related to such testing (including tests with
negative results).
Informant. The term "informant" means an individual who is a patient or employee or
who becomes a patient or employee at the request of a law enforcement agency or official
and who at the request of a law enforcement agency or official observes one or more
patients or employees for the purpose of reporting the information obtained to the law
enforcement agency or official.
Patient. The term "patient" means any individual or subject who has applied for or been
given a diagnosis or treatment for drug abuse, alcoholism or alcohol abuse, infection with
the human immunodeficiency virus, or sickle cell anemia and includes any individual
who, after arrest on a criminal charge, is interviewed and/or tested in connection with
drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency
virus, or sickle cell anemia in order to determine that individual's eligibility to participate
in a treatment or rehabilitation program. The term patient includes an individual who has
been diagnosed or treated for alcoholism, drug abuse, HIV infection, or sickle cell anemia
for purposes of participation in a VA program or activity relating to those four conditions,
including a program or activity consisting of treatment, rehabilitation, education, training,
evaluation, or research. The term "patient" for the purpose of infection with the human
immunodeficiency virus or sickle cell anemia, includes one tested for the disease.
Patient identifying information. The term "patient identifying information" means the
name, address, social security number, fingerprints, photograph, or similar information
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
by which the identity of a patient can be determined with reasonable accuracy and speed
either directly or by reference to other publicly available information. The term does not
include a number assigned to a patient by a treatment program, if that number does not
consist of, or contain numbers (such as social security, or driver's license number) which
could be used to identify a patient with reasonable accuracy and speed from sources
external to the treatment program.
Person. The term "person" means an individual, partnership, corporation, Federal, State
or local government agency, or any other legal entity.
Records. The term "records" means any information received, obtained or maintained,
whether recorded or not, by an employee or contractor of VA, for the purpose of seeking
or performing VA program or activity functions relating to drug abuse, alcoholism, tests
for or infection with the human immunodeficiency virus, or sickle cell anemia regarding
an identifiable patient. A program or activity function relating to drug abuse, alcoholism,
infection with the human immunodeficiency virus, or sickle cell anemia includes
evaluation, treatment, education, training, rehabilitation, research, or referral for one of
these conditions. Sections 1.460 through 1.499 of this part apply to a primary or other
diagnosis, or other information which identifies, or could reasonably be expected to
identify, a patient as having a drug or alcohol abuse condition, infection with the human
immunodeficiency virus, or sickle cell anemia (e.g., alcoholic psychosis, drug
dependence), but only if such diagnosis or information is received, obtained or
maintained for the purpose of seeking or performing one of the above program or activity
functions. Sections 1.460 through 1.499 of this part do not apply if such diagnosis or
other information is not received, obtained or maintained for the purpose of seeking or
performing a function or activity relating to drug abuse, alcoholism, infection with the
human immunodeficiency virus, or sickle cell anemia for the patient in question.
Whenever such diagnosis or other information, not originally received or obtained for the
purpose of obtaining or providing one of the above program or activity functions, is
subsequently used in connection with such program or activity functions, those original
entries become a "record" and §§ 1.460 through 1.499 of this part thereafter apply to
those entries. Segregability: these regulations do not apply to records or information
contained therein, the disclosure of which (the circumstances surrounding the disclosure
having been considered) could not reasonably be expected to disclose the fact that a
patient has been connected with a VA program or activity function relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle cell anemia.
(1) The following are examples of instances whereby records or information related to
alcoholism or drug abuse are covered by the provisions of §§ 1.460 through 1.499 of this
part:
(i) A patient with alcoholic delirium tremens is admitted for detoxification. The patient is
offered treatment in a VA alcohol rehabilitation program which he declines.
(ii) A patient who is diagnosed as a drug abuser applies for and is provided VA drug
rehabilitation treatment.
(iii) While undergoing treatment for an unrelated medical condition, a patient discusses
with the physician his use and abuse of alcohol. The physician offers VA alcohol
rehabilitation treatment which is declined by the patient.
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(2) The following are examples of instances whereby records or information related to
alcoholism or drug abuse are not covered by the provisions of §§ 1.460 through 1.499 of
this part:
(i) A patient with alcoholic delirium tremens is admitted for detoxification, treated and
released with no counseling or treatment for the underlying condition of alcoholism.
(ii) While undergoing treatment for an unrelated medical condition, a patient informs the
physician of a history of drug abuse fifteen years earlier with no ingestion of drugs since.
The history and diagnosis of drug abuse is documented in the hospital summary and no
treatment is sought by the patient or offered or provided by VA during the current period
of treatment.
(iii) While undergoing treatment for injuries sustained in an accident, a patient's medical
record is documented to support the judgment of the physician to prescribe certain
alternate medications in order to avoid possible drug interactions in view of the patient's
enrollment and treatment in a non-VA methadone maintenance program. The patient
states that continued treatment and follow-up will be obtained from private physicians
and VA treatment for the drug abuse is not sought by the patient nor provided or offered
by the staff.
(iv) A patient is admitted to the emergency room suffering from a possible drug overdose.
The patient is treated and released; a history and diagnosis of drug abuse may be
documented in the hospital summary. The patient is not offered treatment for the
underlying conditions of drug abuse, nor is treatment sought by the patient for that
condition.
Third party payer. The term "third party payer" means a person who pays, or agrees to
pay, for diagnosis or treatment furnished to a patient on the basis of a contractual
relationship with the patient or a member of his or her family or on the basis of the
patient's eligibility for Federal, State, or local governmental benefits.
Treatment. The term "treatment" means the management and care of a patient for drug
abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia, or a condition which is identified as having been caused by one or
more of these conditions, in order to reduce or eliminate the adverse effects upon the
patient. The term includes testing for the human immunodeficiency virus or sickle cell
anemia.
Undercover agent. The term "undercover agent" means an officer of any Federal, State,
or local law enforcement agency who becomes a patient or employee for the purpose of
investigating a suspected violation of law or who pursues that purpose after becoming a
patient or becoming employed for other purposes.
[60 FR 63926, 63929, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.461 Applicability.
(a) General.
(1) Restrictions on disclosure. The restrictions on disclosure in these regulations apply to
any information whether or not recorded, which:
(i) Would identify a patient as an alcohol or drug abuser, an individual tested for or
infected with the human immunodeficiency virus (HIV), hereafter referred to as HIV, or
an individual with sickle cell anemia, either directly, by reference to other publicly
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available information, or through verification of such an identification by another person;
and
(ii) Is provided or obtained for the purpose of treating alcohol or drug abuse, infection
with the HIV, or sickle cell anemia, making a diagnosis for that treatment, or making a
referral for that treatment as well as for education, training, evaluation, rehabilitation and
research program or activity purposes.
(2) Restriction on use. The restriction on use of information to initiate or substantiate any
criminal charges against a patient or to conduct any criminal investigation of a patient
applies to any information, whether or not recorded, which is maintained for the purpose
of treating drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia, making a diagnosis for that treatment, or making a referral for that treatment as
well as for education, training, evaluation, rehabilitation, and research program or activity
purposes.
(b) Period covered as affecting applicability. The provisions of §§ 1.460 through 1.499 of
this part apply to records of identity, diagnosis, prognosis, or treatment pertaining to any
given individual maintained over any period of time which, irrespective of when it begins,
does not end before March 21, 1972, in the case of diagnosis or treatment for drug abuse;
or before May 14, 1974, in the case of diagnosis or treatment for alcoholism or alcohol
abuse; or before September 1, 1973, in the case of testing, diagnosis or treatment of sickle
cell anemia; or before May 20, 1988, in the case of testing, diagnosis or treatment for an
infection with the HIV.
(c) Exceptions.
(1) Department of Veterans Affairs and Armed Forces. The restrictions on disclosure in
§§ 1.460 through 1.499 of this part do not apply to communications of information
between or among those components of VA who have a need for the information in
connection with their duties in the provision of health care, adjudication of benefits, or in
carrying out administrative responsibilities related to those functions, including personnel
of the Office of the Inspector General who are conducting audits, evaluations, healthcare
inspections, or non-patient investigations, or between such components and the Armed
Forces, of information pertaining to a person relating to a period when such person is or
was subject to the Uniform Code of Military Justice. Information obtained by VA
components under these circumstances may be disclosed outside of VA to prosecute or
investigate a non-patient only in accordance with § 1.495 of this part. Similarly, the
restrictions on disclosure in §§ 1.460 through 1.499 of this part do not apply to
communications of information to the Department of Justice or U.S. Attorneys who are
providing support in civil litigation or possible litigation involving VA.
(2) Contractor. The restrictions on disclosure in §§ 1.460 through 1.499 of this part do not
apply to communications between VA and a contractor of information needed by the
contractor to provide his or her services.
(3) Crimes on VA premises or against VA personnel. The restrictions on disclosure and
use in §§ 1.460 through 1.499 of this part do not apply to communications from VA
personnel to law enforcement officers which:
(i) Are directly related to a patient's commission of a crime on the premises of the facility
or against personnel of VA or to a threat to commit such a crime; and
(ii) Are limited to the circumstances of the incident, including the patient status of the
individual committing or threatening to commit the crime, that individual's name and
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address to the extent authorized by 38 U.S.C. 5701(f)(2), and that individual's last known
whereabouts.
(4) Undercover agents and informants.
(i) Except as specifically authorized by a court order granted under § 1.495 of this part,
VA may not knowingly employ, or admit as a patient, any undercover agent or informant
in any VA drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program.
(ii) No information obtained by an undercover agent or informant, whether or not that
undercover agent or informant is placed in a VA drug abuse, alcoholism or alcohol abuse,
HIV infection, or sickle cell anemia treatment program pursuant to an authorizing court
order, may be used to criminally investigate or prosecute any patient unless authorized
pursuant to the provisions of § 1.494 of this part.
(iii) The enrollment of an undercover agent or informant in a treatment unit shall not be
deemed a violation of this section if the enrollment is solely for the purpose of enabling
the individual to obtain treatment for drug or alcohol abuse, HIV infection, or sickle cell
anemia.
(d) Applicability to recipients of information.
(1) Restriction on use of information. In the absence of a proper § 1.494 court order, the
restriction on the use of any information subject to §§ 1.460 through 1.499 of this part to
initiate or substantiate any criminal charges against a patient or to conduct any criminal
investigation of a patient applies to any person who obtains that information from VA,
regardless of the status of the person obtaining the information or of whether the
information was obtained in accordance with §§ 1.460 through 1.499 of this part. This
restriction on use bars, among other things, the introduction of that information as
evidence in a criminal proceeding and any other use of the information to investigate or
prosecute a patient with respect to a suspected crime. Information obtained by undercover
agents or informants (see paragraph (c) of this section) or through patient access (see §
1.469 of this part) is subject to the restriction on use.
(2) Restrictions on disclosures-third-party payers and others. The restrictions on
disclosure in §§ 1.460 through 1.499 of this part apply to third-party payers and persons
who, pursuant to a consent, receive patient records directly from VA and who are notified
of the restrictions on redisclosure of the records in accordance with § 1.476 of this part.
[60 FR 63926, 63931, Dec. 13, 1995]
(38 U.S.C. 7332(e) and 7334)
§ 1.462 Confidentiality restrictions.
(a) General. The patient records to which §§ 1.460 through 1.499 of this part apply may
be disclosed or used only as permitted by these regulations and may not otherwise be
disclosed or used in any civil, criminal, administrative, or legislative proceedings
conducted by any Federal, State, or local authority. Any disclosure made under these
regulations must be limited to that information which is necessary to carry out the
purpose of the disclosure.
(b) Unconditional compliance required. The restrictions on disclosure and use in §§ 1.460
through 1.499 of this part apply whether the person seeking the information already has it,
has other means of obtaining it, is a law enforcement or other official, has obtained a
subpoena, or asserts any other justification for a disclosure or use which is not permitted
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
by §§ 1.460 through 1.499 of this part. These provisions do not prohibit VA from acting
accordingly when there is no disclosure of information.
(c) Acknowledging the presence of patients: responding to requests.
(1) The presence of an identified patient in a VA facility for the treatment or other VA
program activity relating to drug abuse, alcoholism or alcohol abuse, infection with the
HIV, or sickle cell anemia may be acknowledged only if the patient's written consent is
obtained in accordance with § 1.475 of this part or if an authorizing court order is entered
in accordance with §§ 1.490 through 1.499 of this part. Acknowledgment of the presence
of an identified patient in a facility is permitted if the acknowledgment does not reveal
that the patient is being treated for or is otherwise involved in a VA program or activity
concerning drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia.
(2) Any answer to a request for a disclosure of patient records which is not permissible
under §§ 1.460 through 1.499 of this part must be made in a way that will not
affirmatively reveal that an identified individual has been, or is being diagnosed or
treated for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia. These regulations do not restrict a disclosure that an identified individual is not
and never has been a patient.
[60 FR 63926, 63932, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.463 Criminal penalty for violations.
Under 38 U.S.C. 7332(g), any person who violates any provision of this statute or §§
1.460 through 1.499 of this part shall be fined not more than $ 5,000 in the case of a first
offense, and not more than $ 20,000 for a subsequent offense.
[60 FR 63926, 63932, Dec. 13, 1995]
(38 U.S.C. 7332(g))
§ 1.464 Minor patients.
(a) Definition of minor. As used in §§ 1.460 through 1.499 of this part the term "minor"
means a person who has not attained the age of majority specified in the applicable State
law, or if no age of majority is specified in the applicable State law, the age of eighteen
years.
(b) State law not requiring parental consent to treatment. If a minor patient acting alone
has the legal capacity under the applicable State law to apply for and obtain treatment for
drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia,
any written consent for disclosure authorized under § 1.475 of this part may be given
only by the minor patient. This restriction includes, but is not limited to, any disclosure of
patient identifying information to the parent or guardian of a minor patient for the
purpose of obtaining financial reimbursement. Sections 1.460 through 1.499 of this part
do not prohibit a VA facility from refusing to provide nonemergent treatment to an
otherwise ineligible minor patient until the minor patient consents to the disclosure
necessary to obtain reimbursement for services from a third party payer.
(c) State law requiring parental consent to treatment.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(1) Where State law requires consent of a parent, guardian, or other person for a minor to
obtain treatment for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or
sickle cell anemia, any written consent for disclosure authorized under § 1.475 of this
part must be given by both the minor and his or her parent, guardian, or other person
authorized under State law to act in the minor's behalf.
(2) Where State law requires parental consent to treatment, the fact of a minor's
application for treatment may be communicated to the minor's parent, guardian, or other
person authorized under State law to act in the minor's behalf only if:
(i) The minor has given written consent to the disclosure in accordance with § 1.475 of
this part; or
(ii) The minor lacks the capacity to make a rational choice regarding such consent as
judged by the appropriate VA facility director under paragraph (d) of this section.
(d) Minor applicant for service lacks capacity for rational choice. Facts relevant to
reducing a threat to the life or physical well being of the applicant or any other individual
may be disclosed to the parent, guardian, or other person authorized under State law to
act in the minor's behalf if the appropriate VA facility director judges that:
(1) A minor applicant for services lacks capacity because of extreme youth or mental or
physical condition to make a rational decision on whether to consent to a disclosure under
§ 1.475 of this part to his or her parent, guardian, or other person authorized under State
law to act in the minor's behalf, and
(2) The applicant's situation poses a substantial threat to the life or physical well-being of
the applicant or any other individual which may be reduced by communicating relevant
facts to the minor's parent, guardian, or other person authorized under State law to act in
the minor's behalf.
[60 FR 63926, 63932, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.465 Incompetent and deceased patients.
(a) Incompetent patients other than minors. In the case of a patient who has been
adjudicated as lacking the capacity, for any reason other than insufficient age, to manage
his or her own affairs, any consent which is required under §§ 1.460 through 1.499 of this
part may be given by a court appointed legal guardian.
(b) Deceased patients.
(1) Vital statistics. Sec. 1.460 through 1.499 of this part do not restrict the disclosure of
patient identifying information relating to the cause of death of a patient under laws
requiring the collection of death or other vital statistics or permitting inquiry into the
cause of death.
(2) Consent by personal representative. Any other disclosure of information identifying a
deceased patient as being treated for drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia is subject to §§ 1.460 through 1.499 of this part. If a
written consent to the disclosure is required, the Under Secretary for Health or designee
may, upon the prior written request of the next of kin, executor/executrix,
administrator/administratrix, or other personal representative of such deceased patient,
disclose the contents of such records, only if the Under Secretary for Health or designee
determines such disclosure is necessary to obtain survivorship benefits for the deceased
patient's survivor. This would include not only VA benefits, but also payments by the
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Social Security Administration, Worker's Compensation Boards or Commissions, or
other Federal, State, or local government agencies, or nongovernment entities, such as
life insurance companies.
(3) Information related to sickle cell anemia. Information related to sickle cell anemia
may be released to a blood relative of a deceased veteran for medical follow-up or family
planning purposes.
[60 FR 63926, 63932, Dec. 13, 1995]
(38 U.S.C. 7332(b)(3))
§ 1.466 Security for records.
(a) Written records which are subject to §§ 1.460 through 1.499 of this part must be
maintained in a secure room, locked file cabinet, safe or other similar container when not
in use. Access to information stored in computers will be limited to authorized VA
employees who have a need for the information in performing their duties. These security
precautions shall be consistent with the Privacy Act of 1974 (5 U.S.C. 552a).
(b) Each VA facility shall adopt in writing procedures related to the access to and use of
records which are subject to §§ 1.460 through 1.499 of this part.
[60 FR 63926, 63933, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.467 Restrictions on the use of identification cards and public signs.
(a) No facility may require any patient to carry on their person while away from the
facility premises any card or other object which would identify the patient as a participant
in any VA drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program. A facility may require patients to use or carry cards or other
identification objects on the premises of a facility. Patients may not be required to wear
clothing or colored identification bracelets or display objects openly to all facility staff or
others which would identify them as being treated for drug or alcohol abuse, HIV
infection, or sickle cell anemia.
(b) Treatment locations should not be identified by signs that would identify individuals
entering or exiting these locations as patients enrolled in a drug or alcohol abuse, HIV
infection, or sickle cell anemia program or activity.
[60 FR 63926, 63933, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.468 Relationship to Federal statutes protecting research subjects against
compulsory disclosure of their identity.
(a) Research privilege description. There may be concurrent coverage of patient
identifying information by the provisions of §§ 1.460 through 1.499 of this part and by
administrative action taken under Sec. 303(a) of the Public Health Service Act (42 U.S.C.
241(d) and the implementing regulations at 42 CFR Part 2a); or Sec. 502(c) of the
Controlled Substances Act (21 U.S.C. 872(c) and the implementing regulations at 21
CFR 1316.21). These "research privilege" statutes confer on the Secretary of Health and
Human Services and on the Attorney General, respectively, the power to authorize
researchers conducting certain types of research to withhold from all persons not
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
connected with the research the names and other identifying information concerning
individuals who are the subjects of the research.
(b) Effect of concurrent coverage. Sections 1.460 through 1.499 of this part restrict the
disclosure and use of information about patients, while administrative action taken under
the research privilege statutes and implementing regulations protects a person engaged in
applicable research from being compelled to disclose any identifying characteristics of
the individuals who are the subjects of that research. The issuance under §§ 1.490
through 1.499 of this part of a court order authorizing a disclosure of information about a
patient does not affect an exercise of authority under these research privilege statutes.
However, the research privilege granted under 21 CFR 291.505(g) to treatment programs
using methadone for maintenance treatment does not protect from compulsory disclosure
any information which is permitted to be disclosed under those regulations. Thus, if a
court order entered in accordance with §§ 1.490 through 1.499 of this part authorizes a
VA facility to disclose certain information about its patients, the facility may not invoke
the research privilege under 21 CFR 291.505(g) as a defense to a subpoena for that
information.
[60 FR 63926, 63933, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.469 Patient access and restrictions on use.
(a) Patient access not prohibited. Sections 1.460 through 1.499 of this part do not prohibit
a facility from giving a patient access to his or her own records, including the opportunity
to inspect and copy any records that VA maintains about the patient, subject to the
provisions of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the patient is
accompanied, giving access to the patient and the accompanying person will require a
written consent by the patient which is provided in accordance with § 1.475 of this part.
(b) Restrictions on use of information. Information obtained by patient access to patient
record is subject to the restriction on use of this information to initiate or substantiate any
criminal charges against the patient or to conduct any criminal investigation of the patient
as provided for under § 1.461(d)(1) of this part.
[60 FR 63926, 63933, Dec. 13, 1995]
(38 U.S.C. 7334)
§ 1.470 [Reserved]
§ 1.471 [Reserved]
§ 1.472 [Reserved]
§ 1.473 [Reserved]
§ 1.474 [Reserved]
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Disclosures With Patient's Consent
§ 1.475 Form of written consent.
§ 1.476 Prohibition on redisclosure.
§ 1.477 Disclosures permitted with written consent.
§ 1.478 Disclosures to prevent multiple enrollments in detoxification and
maintenance treatment programs; not applicable to records relating to sickle cell
anemia or infection with the HIV.
§ 1.479 Disclosures to elements of the criminal justice system which have referred
patients.
§ 1.480 [Reserved]
§ 1.481 [Reserved]
§ 1.482 [Reserved]
§ 1.483 [Reserved]
§ 1.484 [Reserved]
§ 1.475 Form of written consent.
(a) Required elements. A written consent to a disclosure under §§ 1.460 through 1.499 of
this part must include:
(1) The name of the facility permitted to make the disclosure (such a designation does not
preclude the release of records from other VA health care facilities unless a restriction is
stated on the consent).
(2) The name or title of the individual or the name of the organization to which disclosure
is to be made.
(3) The name of the patient.
(4) The purpose of the disclosure.
(5) How much and what kind of information is to be disclosed.
(6) The signature of the patient and, when required for a patient who is a minor, the
signature of a person authorized to give consent under § 1.464 of this part; or, when
required for a patient who is incompetent or deceased, the signature of a person
authorized to sign under § 1.465 of this part in lieu of the patient.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any time except to the extent
that the facility which is to make the disclosure has already acted in reliance on it. Acting
in reliance includes the provision of treatment services in reliance on a valid consent to
disclose information to a third party payer.
(9) The date, event, or condition upon which the consent will expire if not revoked before.
This date, event, or condition must ensure that the consent will last no longer than
reasonably necessary to serve the purpose for which it is given.
(b) Expired, deficient, or false consent. A disclosure may not be made on the basis of a
consent which:
(1) Has expired;
(2) On its face substantially fails to conform to any of the requirements set forth in
paragraph (a) of this section;
(3) Is known to have been revoked; or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(4) Is known, or through a reasonable effort could be known, by responsible personnel of
VA to be materially false.
(c) Notification of deficient consent. Other than the patient, no person or entity may be
advised that a special consent is required in order to disclose information relating to an
individual participating in a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell
anemia program or activity. Where a person or entity presents VA with an insufficient
written consent for information protected by 38 U.S.C. 7332, VA must, in the process of
obtaining a legally sufficient consent, correspond only with the patient whose records are
involved, or the legal guardian of an incompetent patient or next of kin of a deceased
patient, and not with any other person.
(d) It is not necessary to use any particular form to establish a consent referred to in
paragraph (a) of this section, however, VA Form 10-5345, titled Request for and Consent
to Release of Medical Records Protected by 38 U.S.C. 7332, may be used for such
purpose.
[60 FR 63926, 63933, Dec. 13, 1995]
38 U.S.C. 7332(a)(2) and (b)(1).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.476 Prohibition on redisclosure.
Each disclosure under §§ 1.460 through 1.499 of this part made with the patient's written
consent must be accompanied by a written statement similar to the following:
This information has been disclosed to you from records protected by Federal
confidentiality rules (((38 CFR Part 1). The Federal rules prohibit you from making any
further disclosure of this information unless further disclosure is expressly permitted by
the written consent of the person to whom it pertains or as otherwise permitted by 38
CFR Part 1. A general authorization for the release of medical or other information is
NOT sufficient for this purpose. The Federal rules restrict any use of the information to
criminally investigate or prosecute any alcohol or drug abuse patient or patient with
sickle cell anemia or HIV infection.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[60 FR 63926, 63934, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.477 Disclosures permitted with written consent.
If a patient consents to a disclosure of his or her records under § 1.475 of this part, a
facility may disclose those records in accordance with that consent to any individual or
organization named in the consent, except that disclosures to central registries and in
connection with criminal justice referrals must meet the requirements of §§ 1.478 and
1.479 of this part, respectively.
[60 FR 63926, 63934, Dec. 13, 1995]
38 U.S.C. 7332(b)(1).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.478 Disclosures to prevent multiple enrollments in detoxification and
maintenance treatment programs; not applicable to records relating to sickle cell
anemia or infection with the HIV.
(a) Definitions.
For purposes of this section:
(1) Central registry means an organization which obtains from two or more member
programs patient identifying information about individuals applying for maintenance
treatment or detoxification treatment for the purpose of avoiding an individual's
concurrent enrollment in more than one program.
(2) Detoxification treatment means the dispensing of a narcotic drug in decreasing doses
to an individual in order to reduce or eliminate adverse physiological or psychological
effects incident to withdrawal from the sustained use of a narcotic drug.
(3) Maintenance treatment means the dispensing of a narcotic drug in the treatment of an
individual for dependence upon heroin or other morphine-like drugs.
(4) Member program means a non-VA detoxification treatment or maintenance treatment
program which reports patient identifying information to a central registry and which is
in the same State as that central registry or is not more than 125 miles from any border of
the State in which the central registry is located.
(b) Restrictions on disclosure. VA may disclose patient records to a central registry which
is located in the same State or is not more than 125 miles from any border of the State or
to any non-VA detoxification or maintenance treatment program not more than 200 miles
away for the purpose of preventing the multiple enrollment of a patient only if:
(1) The disclosure is made when:
(i) The patient is accepted for treatment;
(ii) The type or dosage of the drug is changed; or
(iii) The treatment is interrupted, resumed or terminated.
(2) The disclosure is limited to:
(i) Patient identifying information;
(ii) Type and dosage of the drug; and
(iii) Relevant dates.
(3) The disclosure is made with the patient's written consent meeting the requirements of
§ 1.475 of this part, except that:
(i) The consent must list the name and address of each central registry and each known
non-VA detoxification or maintenance treatment program to which a disclosure will be
made; and
(ii) The consent may authorize a disclosure to any non-VA detoxification or maintenance
treatment program established within 200 miles after the consent is given without naming
any such program.
(c) Use of information limited to prevention of multiple enrollments. A central registry
and any non-VA detoxification or maintenance treatment program to which information
is disclosed to prevent multiple enrollments may not redisclose or use patient identifying
information for any purpose other than the prevention of multiple enrollments unless
authorized by a court order under §§ 1.490 through 1.499 of this part.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[60 FR 63926, 63934, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.479 Disclosures to elements of the criminal justice system which have
referred patients.
(a) VA may disclose information about a patient from records covered by §§ 1.460
through 1.499 of this part to those persons within the criminal justice system which have
made participation in a VA treatment program a condition of the disposition of any
criminal proceedings against the patient or of the patient's parole or other release from
custody if:
(1) The disclosure is made only to those individuals within the criminal justice system
who have a need for the information in connection with their duty to monitor the patient's
progress (e.g., a prosecuting attorney who is withholding charges against the patient, a
court granting pretrial or posttrial release, probation or parole officers responsible for
supervision of the patient); and
(2) The patient has signed a written consent as a condition of admission to the treatment
program meeting the requirements of § 1.475 of this part (except paragraph (a)(8) which
is inconsistent with the revocation provisions of paragraph (c) of this section) and the
requirements of paragraphs (b) and (c) of this section.
(b) Duration of consent. The written consent must state the period during which it
remains in effect. This period must be reasonable, taking into account:
(1) The anticipated length of the treatment recognizing that revocation of consent may
not generally be effected while treatment is ongoing;
(2) The type of criminal proceeding involved, the need for the information in connection
with the final disposition of that proceeding, and when the final disposition will occur;
and
(3) Such other factors as the facility, the patient, and the person(s) who will receive the
disclosure consider pertinent.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Revocation of consent. The written consent must state that it is revocable upon the
passage of a specified amount of time or the occurrence of a specified, ascertainable
event. The time or occurrence upon which consent becomes revocable may be no earlier
than the individual's completion of the treatment program and no later than the final
disposition of the conditional release or other action in connection with which consent
was given.
(d) Restrictions on redisclosure and use. A person who receives patient information under
this section may redisclose and use it only to carry out that person's official duties with
regard to the patient's conditional release or other action in connection with which the
consent was given, including parole.
[60 FR 63926, 63934, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.480 [Reserved]
§ 1.481 [Reserved]
§ 1.482 [Reserved]
§ 1.483 [Reserved]
§ 1.484 [Reserved]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Disclosures Without Patient Consent
§ 1.485 Medical emergencies.
§ 1.486 Disclosure of information related to infection with the human
immunodeficiency virus to public health authorities.
§ 1.487 Disclosure of information related to infection with the human
immunodeficiency virus to the spouse or sexual partner of the patient.
§ 1.488 Research activities.
§ 1.489 Audit and evaluation activities.
§ 1.485 Medical emergencies.
(a) General rule. Under the procedures required by paragraph (c) of this section, patient
identifying information from records covered by §§ 1.460 through 1.499 of this part may
be disclosed to medical personnel who have a need for information about a patient for the
purpose of treating a condition which poses an immediate threat to the health of any
individual and which requires immediate medical intervention.
(b) Special rule. Patient identifying information may be disclosed to medical personnel of
the Food and Drug Administration (FDA) who assert a reason to believe that the health of
any individual may be threatened by an error in the manufacture, labeling, or sale of a
product under FDA jurisdiction, and that the information will be used for the exclusive
purpose of notifying patients or their physicians of potential dangers.
(c) Procedures. Immediately following disclosure, any VA employee making an oral
disclosure under authority of this section shall make an accounting of the disclosure in
accordance with the Privacy Act (5 U.S.C. 552a(c) and 38 CFR 1.576(c)) and
document the disclosure in the patient's records setting forth in writing:
(1) The name and address of the medical personnel to whom disclosure was made and
their affiliation with any health care facility;
(2) The name of the individual making the disclosure;
(3) The date and time of the disclosure;
(4) The nature of the emergency (or error, if the report was to FDA);
(5) The information disclosed; and
(6) The authority for making the disclosure (§ 1.485 of this part).
[60 FR 63926, 63935, Dec. 13, 1995]
38 U.S.C. 7332(b)(2)(A).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.486 Disclosure of information related to infection with the human
immunodeficiency virus to public health authorities.
(a) In the case of any record which is maintained in connection with the performance of
any program or activity relating to infection with the HIV, information may be disclosed
to a Federal, State, or local public health authority, charged under Federal or State law
with the protection of the public health, and to which Federal or State law requires
disclosure of such record, if a qualified representative of such authority has made a
written request that such record be provided as required pursuant to such law for a
purpose authorized by such law. In the case of a State law, such law must, in order for
VA to be able to release patient name and address information in accordance with 38
U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be assessed against
those individuals who are subject to the jurisdiction of the public health authority but fail
to comply with the reporting requirements.
(b) A person to whom a record is disclosed under this section may not redisclose or use
such record for a purpose other than that for which the disclosure was made.
[60 FR 63926, 63935, Dec. 13, 1995]
38 U.S.C. 7332(b)(2)(C).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.487 Disclosure of information related to infection with the human
immunodeficiency virus to the spouse or sexual partner of the patient.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Subject to paragraph (b) of this section, a physician or a professional counselor may
disclose information or records indicating that a patient is infected with the HIV if the
disclosure is made to the spouse of the patient, or to an individual whom the patient has,
during the process of professional counseling or of testing to determine whether the
patient is infected with such virus, identified as being a sexual partner of such patient.
(b) A disclosure under this section may be made only if the physician or counselor, after
making reasonable efforts to counsel and encourage the patient to provide the information
to the spouse or sexual partner, reasonably believes that the patient will not provide the
information to the spouse or sexual partner and that the disclosure is necessary to protect
the health of the spouse or sexual partner.
(c) A disclosure under this section may be made by a physician or counselor other than
the physician or counselor referred to in paragraph (b) of this section if such physician or
counselor is unavailable by reason of extended absence or termination of employment to
make the disclosure.
[60 FR 63926, 63935, Dec. 13, 1995]
38 U.S.C. 7332(b)).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.488 Research activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the Privacy Act (5
U.S.C. 552a),
38 CFR 1.575-1.584 and the following paragraphs, patient medical
record information covered by §§ 1.460 through 1.499 of this part may be disclosed for
the purpose of conducting scientific research.
(a) Information in individually identifiable form may be disclosed from records covered
by §§ 1.460 through 1.499 of this part for the purpose of conducting scientific research if
the Under Secretary for Health or designee makes a determination that the recipient of the
patient identifying information:
(1) Is qualified to conduct the research.
(2) Has a research protocol under which the information:
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(i) Will be maintained in accordance with the security requirements of § 1.466 of this part
(or more stringent requirements); and
(ii) Will not be redisclosed except as permitted under paragraph (b) of this section.
(3) Has furnished a written statement that the research protocol has been reviewed by an
independent group of three or more individuals who found that the rights of patients
would be adequately protected and that the potential benefits of the research outweigh
any potential risks to patient confidentiality posed by the disclosure of records.
(b) A person conducting research may disclose information obtained under paragraph (a)
of this section only back to VA and may not identify any individual patient in any report
of that research or otherwise disclose patient identities.
[60 FR 63926, 63935, Dec. 13, 1995]
38 U.S.C. 7332(b)(2)(B).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.489 Audit and evaluation activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the Privacy Act (5
U.S.C. 552a),
38 CFR 1.575-1.584, and the following paragraphs, patient medical
records covered by §§ 1.460 through 1.499 of this part may be disclosed outside VA for
the purposes of conducting audit and evaluation activities.
(a) Records not copies. If patient records covered by §§ 1.460 through 1.499 of this part
are not copied, patient identifying information may be disclosed in the course of a review
of records on VA facility premises to any person who agrees in writing to comply with
the limitations on redisclosure and use in paragraph (d) of this section and:
(1) Where audit or evaluation functions are performed by a State or Federal governmental
agency on behalf of VA; or
(2) Who is determined by the VA facility director to be qualified to conduct the audit or
evaluation activities.
(b) Copying of records. Records containing patient identifying information may be
copied by any person who:
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(1) Agrees in writing to:
(i) Maintain the patient identifying information in accordance with the security
requirements provided in § 1.466 of this part (or more stringent requirements);
(ii) Destroy all the patient identifying information upon completion of the audit or
evaluation; and
(iii) Comply with the limitations on disclosure and use in paragraph (d) of this section.
(2) The VA medical facility director determines to be qualified to conduct the audit or
evaluation activities.
(c) Congressional oversight. Records subject to §§ 1.460 through 1.499 of this part upon
written request may be released to congressional committees or subcommittees for
program oversight and evaluation if such records pertain to any matter within the
jurisdiction of such committee or subcommittee.
(d) Limitation on disclosure and use. Records containing patient identifying information
disclosed under this section may be disclosed only back to VA and used only to carry out
an audit or evaluation purpose, or, to investigate or prosecute criminal or other activities
as authorized by a court order entered under § 1.494 of this part.
[60 FR 63926, 63936, Dec. 13, 1995]
38 U.S.C. 7332(b)(2)(B).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Court Orders Authorizing Disclosures and Use
§ 1.490 Legal effect of order.
§ 1.491 Confidential communications.
§ 1.492 Order not applicable to records disclosed without consent to researchers,
auditors and evaluators.
§ 1.493 Procedures and criteria for orders authorizing disclosures for noncriminal
purposes.
§ 1.494 Procedures and criteria for orders authorizing disclosure and use of records to
criminally investigate or prosecute patients.
§ 1.495 Procedures and criteria for orders authorizing disclosure and use of records to
investigate or prosecute VA or employees of VA.
§ 1.496 Orders authorizing the use of undercover agents and informants to criminally
investigate employees or agents of VA.
§ 1.497 [Reserved]
§ 1.498 [Reserved]
§ 1.499 [Reserved]
§ 1.490 Legal effect of order.
The records to which §§ 1.460 through 1.499 of this part apply may be disclosed if
authorized by an appropriate order of a court of competent jurisdiction granted after
application showing good cause therefore. In assessing good cause the court is statutorily
required to weigh the public interest and the need for disclosure against the injury to the
patient or subject, to the physician-patient relationship, and to the treatment services.
Upon the granting of such order, the court, in determining the extent to which any
disclosure of all or any part of any record is necessary, is required by statute to impose
appropriate safeguards against unauthorized disclosure. An order of a court of competent
jurisdiction to produce records subject to §§ 1.460 through 1.499 of this part will not be
sufficient unless the order reflects that the court has complied with the requirements of 38
U.S.C. 7332(b)(2)(D). Such an order from a Federal court compels disclosure. However,
such an order from a State court only acts to authorize the Secretary to exercise discretion
pursuant to 38 U.S.C. 5701(b)(5) and 38 CFR 1.511 to disclose such records. It does
not compel disclosure.
[60 FR 63926, 63936, Dec. 13, 1995]
38 U.S.C. 7332(b)(2)(D).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.491 Confidential communications.
(a) A court order under §§ 1.490 through 1.499 of this part may authorize disclosure of
confidential communications made by a patient to a treatment program in the course of
diagnosis, treatment, or referral for treatment only if:
(1) The disclosure is necessary to protect against an existing threat to life or of serious
bodily injury, including circumstances which constitute suspected child abuse and neglect
and verbal threats against third parties;
(2) The disclosure is necessary in connection with investigation or prosecution of an
extremely serious crime, such as one which directly threatens loss of life or serious
bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly
weapon, or child abuse and neglect; or
(3) The disclosure is in connection with litigation or an administrative proceeding in
which the patient offers testimony or other evidence pertaining to the content of the
confidential communications.
[60 FR 63926, 63936, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.492 Order not applicable to records disclosed without consent to researchers,
auditors and evaluators.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
A court order under §§ 1.460 through 1.499 of this part may not authorize qualified
personnel, who have received patient identifying information from VA without consent
for the purpose of conducting research, audit or evaluation, to disclose that information or
use it to conduct any criminal investigation or prosecution of a patient. However, a court
order under § 1.495 of this part may authorize disclosure and use of records to investigate
or prosecute VA personnel.
[60 FR 63926, 63936, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.493 Procedures and criteria for orders authorizing disclosures for
noncriminal purposes.
(a) Application. An order authorizing the disclosure of patient records covered by §§
1.460 through 1.499 of this part for purposes other than criminal investigation or
prosecution may be applied for by any person having a legally recognized interest in the
disclosure which is sought. The application may be filed separately or as part of a
pending civil action in which it appears that the patient records are needed to provide
evidence. An application must use a fictitious name, such as John Doe, to refer to any
patient and may not contain or otherwise disclose any patient identifying information
unless the patient is the applicant or has given a written consent (meeting the
requirements of § 1.475 of this part) to disclosure or the court has ordered the record of
the proceeding sealed from public scrutiny.
(b) Notice. The patient and VA facility from whom disclosure is sought must be given:
(1) Adequate notice in a manner which will not disclose patient identifying information
to other persons; and
(2) An opportunity to file a written response to the application, or to appear in person, for
the limited purpose of providing evidence on whether the statutory and regulatory criteria
for the issuance of the court order are met.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Review of evidence: Conduct of hearing. Any oral argument, review of evidence, or
hearing on the application must be held in the judge's chambers or in some manner which
ensures that patient identifying information is not disclosed to anyone other than a party
to the proceeding, the patient, or VA, unless the patient requests an open hearing in a
manner which meets the written consent requirements of § 1.475 of this part. The
proceeding may include an examination by the judge of the patient records referred to in
the application.
(d) Criteria for entry of order. An order under this section may be entered only if the
court determines that good cause exists. To make this determination the court must find
that:
(1) Other ways of obtaining the information are not available or would not be effective;
and
(2) The public interest and need for the disclosure outweigh the potential injury to the
patient, the physician-patient relationship and the treatment services.
(e) Content of order. An order authorizing a disclosure must:
(1) Limit disclosure to those parts of the patient's record which are essential to fulfill the
objective of the order;
(2) Limit disclosure to those persons whose need for information is the basis for the order;
and
(3) Include such other measures as are necessary to limit disclosure for the protection of
the patient, the physician-patient relationship and the treatment services; for example,
sealing from public scrutiny the record of any proceeding for which disclosure of a
patient's record has been ordered.
[60 FR 63926, 63936, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.494 Procedures and criteria for orders authorizing disclosure and use of
records to criminally investigate or prosecute patients.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Application. An order authorizing the disclosure or use of patient records covered by
§§ 1.460 through 1.499 of this part to criminally investigate or prosecute a patient may be
applied for by VA or by any person conducting investigative or prosecutorial activities
with respect to the enforcement of criminal laws. The application may be filed separately,
as part of an application for a subpoena or other compulsory process, or in a pending
criminal action. An application must use a fictitious name such as John Doe, to refer to
any patient and may not contain or otherwise disclose patient identifying information
unless the court has ordered the record of the proceeding sealed from public scrutiny.
(b) Notice and hearing. Unless an order under § 1.495 of this part is sought with an order
under this section, VA must be given:
(1) Adequate notice (in a manner which will not disclose patient identifying information
to third parties) of an application by a person performing a law enforcement function;
(2) An opportunity to appear and be heard for the limited purpose of providing evidence
on the statutory and regulatory criteria for the issuance of the court order; and
(3) An opportunity to be represented by counsel.
(c) Review of evidence: Conduct of hearings. Any oral argument, review of evidence, or
hearing on the application shall be held in the judge's chambers or in some other manner
which ensures that patient identifying information is not disclosed to anyone other than a
party to the proceedings, the patient, or VA. The proceeding may include an examination
by the judge of the patient records referred to in the application.
(d) Criteria. A court may authorize the disclosure and use of patient records for the
purpose of conducting a criminal investigation or prosecution of a patient only if the
court finds that all of the following criteria are met:
(1) The crime involved is extremely serious, such as one which causes or directly
threatens loss of life or serious bodily injury including, but not limited to, homicide, rape,
kidnapping, armed robbery, assault with a deadly weapon, and child abuse and neglect.
(2) There is a reasonable likelihood that the records will disclose information of
substantial value in the investigation or prosecution.
(3) Other ways of obtaining the information are not available or would not be effective.
(4) The potential injury to the patient, to the physician-patient relationship and to the
ability of VA to provide services to other patients is outweighed by the public interest
and the need for the disclosure.
(5) If the applicant is a person performing a law enforcement function, VA has been
represented by counsel independent of the applicant.
(e) Content of order. Any order authorizing a disclosure or use of patient records under
this section must:
(1) Limit disclosure and use to those parts of the patient's record which are essential to
fulfill the objective of the order;
(2) Limit disclosure to those law enforcement and prosecutorial officials who are
responsible for, or are conducting, the investigation or prosecution, and limit their use of
the records to investigation and prosecution of extremely serious crime or suspected
crime specified in the applications; and
(3) Include such other measures as are necessary to limit disclosure and use to the
fulfillment on only that public interest and need found by the court.
[60 FR 63926, 63937, Dec. 13, 1995]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
38 U.S.C. 7332(c).
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.495 Procedures and criteria for orders authorizing disclosure and use of
records to investigate or prosecute VA or employees of VA.
(a) Application.
(1) An order authorizing the disclosure or use of patient records covered by §§ 1.460
through 1.499 of this part to criminally or administratively investigate or prosecute VA
(or employees or agents of VA) may be applied for by an administrative, regulatory,
supervisory, investigative, law enforcement, or prosecutorial agency having jurisdiction
over VA activities.
(2) The application may be filed separately or as part of a pending civil or criminal action
against VA (or agents or employees of VA) in which it appears that the patient records
are needed to provide material evidence. The application must use a fictitious name, such
as John Doe, to refer to any patient and may not contain or otherwise disclose any patient
identifying information unless the court has ordered the record of the proceeding sealed
from public scrutiny or the patient has given a written consent (meeting the requirements
of § 1.475 of this part) to that disclosure.
(b) Notice not required. An application under this section may, in the discretion of the
court, be granted without notice. Although no express notice is required to VA or to any
patient whose records are to be disclosed, upon implementation of an order so granted
VA or the patient must be afforded an opportunity to seek revocation or amendment of
that order, limited to the presentation of evidence on the statutory and regulatory criteria
for the issuance of the court order.
(c) Requirements for order. An order under this section must be entered in accordance
with, and comply with the requirements of, § 1.493(d) and (e) of this part.
(d) Limitations on disclosure and use of patient identifying information.
(1) An order entered under this section must require the deletion of patient identifying
information from any documents made available to the public.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) No information obtained under this section may be used to conduct any investigation
or prosecution of a patient, or be used as the basis for an application for an order under §
1.494 of this part.
[60 FR 63926, 63937, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.496 Orders authorizing the use of undercover agents and informants to
criminally investigate employees or agents of VA.
(a) Application. A court order authorizing the placement of an undercover agent or
informant in a VA drug or alcohol abuse, HIV infection, or sickle cell anemia treatment
program as an employee or patient may be applied for by any law enforcement or
prosecutorial agency which has reason to believe that employees or agents of the VA
treatment program are engaged in criminal misconduct.
(b) Notice. The VA facility director must be given adequate notice of the application and
an opportunity to appear and be heard (for the limited purpose of providing evidence on
the statutory and regulatory criteria for the issuance of the court order), unless the
application asserts a belief that:
(1) The VA facility director is involved in the criminal activities to be investigated by the
undercover agent or informant; or
(2) The VA facility director will intentionally or unintentionally disclose the proposed
placement of an undercover agent or informant to the employees or agents who are
suspected of criminal activities.
(c) Criteria. An order under this section may be entered only if the court determines that
good cause exists. To make this determination the court must find:
(1) There is reason to believe that an employee or agent of a VA treatment program is
engaged in criminal activity;
(2) Other ways of obtaining evidence of this criminal activity are not available or would
not be effective; and
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) The public interest and need for the placement of an undercover agent or informant in
the VA treatment program outweigh the potential injury to patients of the program,
physician-patient relationships and the treatment services.
(d) Content of order. An order authorizing the placement of an undercover agent or
informant in a VA treatment program must:
(1) Specifically authorize the placement of an undercover agent or an informant;
(2) Limit the total period of the placement to six months;
(3) Prohibit the undercover agent or informant from disclosing any patient identifying
information obtained from the placement except as necessary to criminally investigate or
prosecute employees or agents of the VA treatment program; and
(4) Include any other measures which are appropriate to limit any potential disruption of
the program by the placement and any potential for a real or apparent breach of patient
confidentiality; for example, sealing from public scrutiny the record of any proceeding
for which disclosure of a patient's record has been ordered.
(e) Limitation on use of information. No information obtained by an undercover agent or
informant placed under this section may be used to criminally investigate or prosecute
any patient or as the basis for an application for an order under § 1.494 of this part.
[60 FR 63926, 63938, Dec. 13, 1995]
38 U.S.C. 7334.
Note: Sections 1.460 through 1.499 of this part concern the confidentiality of information
relating to drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in VA records and are applicable in
combination with other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement
the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement
the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575
through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).
The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity,
including education, treatment, rehabilitation or research, which relates to drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle
cell anemia. The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the
Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L.
100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the
authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).
§ 1.497 [Reserved]
§ 1.498 [Reserved]
§ 1.499 [Reserved]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS CLAIMANT RECORDS
§ 1.500 General.
§ 1.501 Release of information by the Secretary.
§ 1.502 Disclosure of the amount of monetary benefits.
§ 1.503 Disclosure of information to a veteran or his or her duly authorized
representative as to matters concerning the veteran alone.
§ 1.504 Disclosure of information to a widow, child, or other claimant.
§ 1.505 Genealogy.
§ 1.506 Disclosure of records to Federal Government departments, State
unemployment compensation agencies, and the Office of Servicemembers' Group
Life Insurance.
§ 1.507 Disclosures to members of Congress.
§ 1.508 Disclosure in cases where claimants are charged with or convicted of criminal
offenses.
§ 1.509 Disclosure to courts in proceedings in the nature of an inquest.
§ 1.510 Disclosure to insurance companies cooperating with the Department of
Justice in the defense of insurance suits against the United States.
§ 1.511 Disclosure of claimant records in connection with judicial proceedings
generally.
§ 1.512 Disclosure of loan guaranty information.
§ 1.513 Disclosure of information contained in Armed Forces service and related
medical records in Department of Veterans Affairs custody.
§ 1.514 Disclosure to private physicians and hospitals other than Department of
Veterans Affairs.
§ 1.514a Disclosure to private psychologists.
§ 1.515 To commanding officers of State soldiers' homes.
§ 1.516 Disclosure of information to undertaker concerning burial of a deceased
veteran.
§ 1.517 Disclosure of vocational rehabilitation and education information to
educational institutions cooperating with the Department of Veterans Affairs.
§ 1.518 Addresses of claimants.
§ 1.519 Lists of names and addresses.
§ 1.520 Confidentiality of social data.
§ 1.521 Special restrictions concerning social security records.
§ 1.522 Determination of the question as to whether disclosure will be prejudicial to
the mental or physical health of claimant.
§ 1.523 [Reserved]
§ 1.524 Persons authorized to represent claimants.
§ 1.525 Inspection of records by or disclosure of information to recognized
representatives of organizations and recognized attorneys.
§ 1.526 Copies of records and papers.
§ 1.527 Administrative review.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236, as amended; 38 U.S.C. 501,
5701.
NOTE: Sections 1.500 through 1.527 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody pertaining to claims under any of the laws adiministered by the
Department of Veterans Affairs. As to the release of information from Department of
Veterans Affairs records other than claimant records, see §§ 1.550 through 1.558.
Sections 1.500 through 1.526 implement the provisions of 38 U.S.C. 5701, 5702.
§ 1.500 General.
(a) Files, records, reports, and other papers and documents pertaining to any claim filed
with the Department of Veterans Affairs, whether pending or adjudicated, and the names
and addresses of present or former personnel of the armed services, and their dependents,
in the possession of the Department of Veterans Affairs, will be deemed confidential and
privileged, and no disclosure therefrom will be made except in the circumstances and
under the conditions set forth in §§ 1.501 through 1.526.
(b) A claimant may not have access to or custody of official Department of Veterans
Affairs records concerning himself or herself nor may a claimant inspect records
concerning himself or herself. Disclosure of information from Department of Veterans
Affairs records to a claimant or his or her duly authorized agent or representative may be
made, however, under the provisions of §§ 1.501 through 1.526.
(c) Each administration, staff office, and field facility head will designate an employee(s)
who will be responsible for initial action on (granting or denying) requests to inspect or
obtain information from or copies of records under their jurisdiction and within the
purview of §§ 1.501 through 1.526 unless the regulations in this part currently contain
such designations. The request should be made to the office concerned (having
jurisdiction of the record desired) or, if not known, to the Director or Veterans Assistance
Officer in the nearest VA regional office, or to the VA Central Office, 810 Vermont
Avenue NW., Washington, DC 20420. Personal contacts should normally be made during
the regular duty hours of the office concerned, which are 8 a.m. to 4:30 p.m., Monday
through Friday, for VA Central Office and most field facilities. Any legal question
arising in a field facility concerning the release of information will be referred to the
appropriate Regional Counsel for disposition as contemplated by § 13.401 of this chapter.
In central office such legal questions will be referred to the General Counsel. Any
administrative question will be referred through administrative channels to the
appropriate administration or staff office head.
(d) Upon denial of a request under paragraph (c) of this section, the responsible
Department of Veterans Affairs official or designated employee will inform the requester
in writing of the denial and advise him or her that he or she may appeal the denial. The
requester will also be furnished the title and address of the Department of Veterans
Affairs official to whom the appeal should be addressed. (See § 1.527.) In each instance
of denial of a request, the denial will be made a matter of record and the record will
contain a citation to the specific provision of Department of Veterans Affairs regulations
upon which the denial is based.
[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38 FR 15601,
June 14, 1973; 61 FR 7215, 7216, Feb. 27, 1996]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.501 Release of information by the Secretary.
The Secretary of Veterans Affairs or the Deputy Secretary may release information,
statistics, or reports to individuals or organizations when in the Secretary's or Deputy
Secretary's judgment such release would serve a useful purpose.
[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]
§ 1.502 Disclosure of the amount of monetary benefits.
The monthly rate of pension, compensation, dependency and indemnity compensation,
retirement pay, subsistence allowance, or educational assistance allowance of any
beneficiary shall be made known to any person who applies for such information.
[32 FR 10848, July 25, 1967]
§ 1.503 Disclosure of information to a veteran or his or her duly authorized
representative as to matters concerning the veteran alone.
Information may be disclosed to a veteran or his or her duly authorized representative as
to matters concerning himself or herself alone when such disclosure would not be
injurious to the physical or mental health of the veteran. If the veteran be deceased,
matters concerning him or her may be disclosed to his widow, children, or next of kin if
such disclosure will not be injurious to the physical or mental health of the person in
whose behalf information is sought or cause repugnance or resentment toward the
decedent.
[13 FR 6999, Nov. 27, 1948]
§ 1.504 Disclosure of information to a widow, child, or other claimant.
Information may be disclosed to a widow, widower, child, or other dependent parent or
other claimant, or the duly authorized representative of any of these persons as to matters
concerning such person alone when such disclosure will not be injurious to the physical
or mental health of the person to whom the inquiry relates. If the person concerning
whom the information is sought is deceased, matters concerning such person may be
disclosed to the next of kin if the disclosures will not be injurious to the physical or
mental health of the person in whose behalf the information is sought or cause
repugnance or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]
§ 1.505 Genealogy.
Information of a genealogical nature when its disclosure will not be detrimental to the
memory of the veteran and not prejudicial, so far as may be apparent, to the interests of
any living person or to the interests of the Government may be released by the
Department of Veterans Affairs or in the case of inactive records may be released by the
Archivist of the United States if in the Archivist's custody.
[13 FR 6999, Nov. 27, 1948]
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.506 Disclosure of records to Federal Government departments, State
unemployment compensation agencies, and the Office of Servicemembers' Group
Life Insurance.
(a) All records or documents required for official purposes by any department or other
agency of the U.S. Government or any state unemployment compensation agency acting
in an official capacity for the Department of Veterans Affairs shall be furnished in
response to an official request, written, or oral, from such department or agency. If the
requesting department or agency does not indicate the purpose for which the records or
documents are requested and there is doubt as to whether they are to be used for official
purposes, the requesting department or agency will be asked to specify the purpose for
which they are to be used.
(b) The Under Secretary for Benefits, Director of Insurance Service, or designee of either
in Central Office, is authorized to release information to OSGLI (Office of
Servicemembers' Group Life Insurance) for the purpose of aiding in the settlement of a
particular insurance case.
[33 FR 2994, Feb. 15, 1968; 62 FR 35969, 35970, July 3, 1997; as corrected at 62 FR
47532, Sept. 9, 1997]
§ 1.507 Disclosures to members of Congress.
Members of Congress shall be furnished in their official capacity in any case such
information contained in the Department of Veterans Affairs files as may be requested
for official use. However, in any unusual case, the request will be presented to the
Secretary, Deputy Secretary, or staff or administration head for personal action. When the
requested information is of a type which may not be furnished a claimant, the member of
Congress shall be advised that the information is furnished to him or her confidentially in
his official capacity and should be so treated by him or her. (See 38 U.S.C. 5701.)
Information concerning the beneficiary designation of a United States Government Life
Insurance or National Service Life Insurance policy is deemed confidential and
privileged and during the insured's lifetime shall not be disclosed to anyone other than the
insured or his or her duly appointed fiduciary unless the insured or the fiduciary
authorizes the release of such information.
[32 FR 10848, July 25, 1967]
§ 1.508 Disclosure in cases where claimants are charged with or convicted of
criminal offenses.
(a) Where incompetent claimants are charged with, or convicted of, offenses other than
those growing out of their relationship with the Department of Veterans Affairs and in
which it is desired to disclose information from the files and records of the Department of
Veterans Affairs, the Regional Counsel, Under Secretary for Benefits, Veterans Benefits
Administration, or the General Counsel if the General Counsel deems it necessary and
proper, may disclose to the court having jurisdiction so much of the information from the
files and records of the Department of Veterans Affairs relating to the mental condition of
such beneficiaries, the same to be available as evidence, as may be necessary to show the
mental condition of the accused and the time of its onset. This provision, however, does
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
not alter the general procedure for handling offenses growing out of relations with the
Department of Veterans Affairs.
(b) When desired by a U.S. district court, the Regional Counsel or the General Counsel
may supply information as to whether any person charged with crime served in the
military or naval service of the United States and whether the Department of Veterans
Affairs has a file on such person. If the file is desired either by the court or by the
prosecution or defense, it may be produced only in accord with §§ 1.501 through 1.526.
[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967; 54 FR 34980,
Aug. 23, 1989; 61 FR 7215, 7216, Feb. 26, 1996]
§ 1.509 Disclosure to courts in proceedings in the nature of an inquest.
The Under Secretary for Benefits, Veterans Benefits Administration, Regional Counsel,
and facility heads are authorized to make disclosures to courts of competent jurisdiction
of such files, records, reports, and other documents as are necessary and proper evidence
in proceedings in the nature of an inquest into the mental competency of claimants and
other proceedings incident to the appointment and discharge of guardians, curators, or
conservators to any court having jurisdiction of such fiduciaries in all matters of
appointment, discharge, or accounting in such courts.
[32 FR 10848, July 25, 1967; 61 FR 7215, 7216, Feb. 27, 1996]
§ 1.510 Disclosure to insurance companies cooperating with the Department of
Justice in the defense of insurance suits against the United States.
Copies of records from the files of the Department of Veterans Affairs will, in the event
of litigation involving commercial insurance policies issued by an insurance company
cooperating with the Department of Justice in defense of insurance suits against the
United States, be furnished to such companies without charge, provided the claimant or
his or her duly authorized representative has authorized the release of the information
contained in such records. If the release of information is not authorized in writing by the
claimant or his or her duly authorized representative, information contained in the files
may be furnished to such company if to withhold same would tend to permit the
accomplishment of a fraud or miscarriage of justice. However, before such information
may be released without the consent of the claimant, the request therefor must be
accompanied by an affidavit of the representative of the insurance company, setting forth
that litigation is pending, the character of the suit, and the purpose for which the
information desired is to be used. If such information is to be used adversely to the
claimant, the affidavit must set forth facts from which it may be determined by the
General Counsel or Regional Counsel whether the furnishing of the information is
necessary to prevent the perpetration of a fraud or other injustice. The averments
contained in such affidavit should be considered in connection with the facts shown by
the claimant's file, and, if such consideration shows the disclosure of the record is
necessary and proper to prevent a fraud or other injustice, information as to the contents
thereof may be furnished to the insurance company or copies of the records may be
furnished to the court, workmen's compensation, or similar board in which the litigation
is pending upon receipt of a subpoena duces tecum addressed to the Secretary of Veterans
Affairs, or the head of the office in which the records desired are located. In the event the
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
subpoena requires the production of the file, as distinguished from the copies of the
records, no expense to the Department of Veterans Affairs may be involved in complying
therewith, and arrangements must be made with the representative of the insurance
company causing the issuance of the subpoena to insure submission of the file to the
court without expense to the Department of Veterans Affairs.
[32 FR 10848, July 25, 1967; 61 FR 7215, 7216, Feb. 27, 1996]
§ 1.511 Disclosure of claimant records in connection with judicial proceedings
generally.
ii
Discussion and Analysis in the Veterans Benefits Manual
(a)(1) Where a suit (or legal proceeding) has been threatened or instituted against the
Government, or a prosecution against a claimant has been instituted or is being
contemplated, the request of the claimant or his or her duly authorized representative for
information, documents, reports, etc., shall be acted upon by the General Counsel in
Central Office, or the Regional Counsel for the field facility, who shall determine the
action to be taken with respect thereto. Where the records have been sent to the
Department of Justice in connection with any such suit (or legal proceeding), the request
will be referred to the Department of Justice, Washington, DC, through the office of the
General Counsel, for attention. Where the records have been sent to an Assistant U.S.
Attorney, the request will be referred by the appropriate Regional Counsel to the
Assistant U.S. Attorney. In all other cases where copies of documents or records are
desired by or on behalf of parties to a suit (or legal proceeding), whether in a Federal
court or any other, such copies shall be disclosed as provided in paragraphs (b) and (c) of
this section where the request is accompanied by court process, or paragraph (e) of this
section where the request is not accompanied by court process. A court process, such as a
court order or subpoena duces tecum should be addressed to either the Secretary of
Veterans Affairs or to the head of the field facility at which the records desired are
located. The determination as to the action to be taken upon any request for the disclosure
of claimant records received in this class of cases shall be made by the component having
jurisdiction over the subject matter in Central Office, or the division having jurisdiction
over the subject matter in the field facility, except in those cases in which representatives
of the component or division have determined that the records desired are to be used
adversely to the claimant, in which event the process will be referred to the General
Counsel in Central Office or to the Regional Counsel for the field facility for disposition.
(2) Where a claim under the provisions of the Federal Tort Claims Act has been filed, or
where such a claim can reasonably be anticipated, no information, documents, reports,
etc., will be disclosed except through the Regional Counsel having jurisdiction, who will
limit the disclosure of information to that which would be available under discovery
proceedings, if the matter were in litigation. Any other information may be disclosed only
after concurrence in such disclosure is provided by the General Counsel.
(b) Disclosures in response to Federal court process. -- (1) Court order. Except for drug
and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment
records, which are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by the name or other
personal identifier of a living claimant who is a citizen of the United States or an alien
lawfully admitted for permanent residence, a Federal court order is the process necessary
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
for the disclosure of such records. Upon receipt of a Federal court order directing
disclosure of claimant records, such records will be disclosed. Disclosure of records
protected under 38 U.S.C. 7332 will be made in accordance with provisions of paragraph
(g) of this section.
(2) Subpoena. Except for drug and alcohol abuse, human immunodeficiency virus and
sickle cell anemia treatment records, which are protected under 38 U.S.C. 7332, where
the records sought are maintained in a VA Privacy Act system of records, and are
retrieved by the name or other personal identifier of a claimant, a subpoena is not
sufficient authority for the disclosure of such records and such records will not be
disclosed, unless the claimant is deceased, or either is not a citizen of the United States,
or is an alien not lawfully admitted for permanent residence. Where one of these
exceptions applies, upon receipt of a Federal court subpoena, such records will be
disclosed. Additionally, where the subpoena is accompanied by authorization from the
claimant, disclosure will be made. Regarding the disclosure of medical records pertaining
to drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia
treatment, a subpoena is insufficient for such disclosure. Specific provisions for the
disclosure of these records are set forth in paragraph (g) of this section.
(3) A disclosure of records in response to the receipt of a Federal court process will be
made to those individuals designated in the process to receive such records, or to the
court from which the process issued. Where original records are produced, they must
remain at all times in the custody of a representative of the Department of Veterans
Affairs, and, if offered and received in evidence, permission should be obtained to
substitute a copy so that the original may remain intact in the record. Where a court
process is issued by or on behalf of a party litigant other than the United States, such
party litigant must prepay the costs of copies in accordance with fees prescribed by §
1.526(i) and any other costs incident to producing the records.
(c) Disclosures in response to state or local court processs. -- (1) State or local court order.
Except for drug and alcohol abuse, human immunodeficiency virus and sickle cell
anemia treatment records, which are protected under 38 U.S.C. 7332, where the records
sought are maintained in a VA Privacy Act system of records, and are retrieved by the
name or other personal identifier of a living claimant who is a citizen of the United States
or an alien lawfully admitted for permanent residence, a State or local court order is the
process necessary for disclosure of such records. Upon receipt of a State or local court
order directing disclosure of claimant records, disclosure of such records will be made in
accordance with the provisions set forth in paragraph (c)(3) of this section. Disclosure of
records protected under 38 U.S.C. 7332 will be made in accordance with provisions of
paragraph (g) of this section.
(2) State or local court subpoena. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which are protected
under 38 U.S.C. § 7332, where the records sought are maintained in a VA Privacy Act
system of records, and are retrieved by the name or other personal identifier of a claimant,
a subpoena is not sufficient authority for disclosure of such records and such records will
not be disclosed unless the claimant is deceased, or, either is not a citizen of the United
States, or is an alien not lawfully admitted for permanent residence. Where one of these
exceptions applies, upon receipt of a State or local court subpoena directing disclosure of
claimant records, disclosure of such records will be made in accordance with the
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
provisions set forth in paragraph (c)(3), of this section. Regarding the disclosure of 7332
records, a subpoena is insufficient for such disclosure. Specific provisions for the
disclosure of these records are set forth in paragraph (g) of this section.
(3) Where the disclosure provisions of paragraph (c) (1) or (2) of this section apply,
disclosure will be made as follows:
(i) When the process presented is accompanied by authority from the claimant; or,
(ii) In the absence of claimant disclosure authority, the Regional Counsel having
jurisdiction must determine whether the disclosure of the records is necessary to prevent
the perpetration of fraud or other injustice in the matter in question. To make such a
determination, the Regional Counsel may require such additional documentation, e.g.,
affidavit, letter of explanation, or such other documentation which would detail the need
for such disclosure, set forth the character of the pending suit, and the purpose for which
the documents or records sought are to be used as evidence. The claimant's record may
also be considered in the making of such determination. Where a court process is
received, and the Regional Counsel finds that additional documentation will be needed to
make the foregoing determination, the Regional Counsel, or other employee having
reasonable knowledge of the requirements of this regulation, shall contact the person
causing the issuance of such court process, and advise that person of the need for
additional documentation. Where a court appearance is appropriate, and the Regional
Counsel has found that there is an insufficient basis upon which to warrant a disclosure of
the requested information, the Regional Counsel, or other employee having reasonable
knowledge of the requirement of this regulation and having consulted with the Regional
Counsel, shall appear in court and advise the court that VA records are confidential and
privileged and may be disclosed only in accordance with applicable Federal regulations,
and to further advise the court of such regulatory requirements and how they have not
been satisified. Where indicated, the Regional Counsel will take appropriate action to
have the matter of disclosure of the affected records removed to Federal court.
(4) Any disclosure of records in response to the receipt of State or local court process will
be made to those individuals designated in the process to receive such records, or to the
court from which such process issued. Payment of the fees as prescribed by § 1.526(i), as
well as any other cost incident to producing the records, must first be deposited with the
Department of Veterans Affairs by the party who caused the process to be issued. The
original records must remain at all times in the custody of a representative of the
Department of Veterans Affairs, and, if there is an offer and admission of any record or
document contained therein, permission should be obtained to substitute a copy so that
the original may remain intact in the record.
(d) Notice requirements where disclosures are made pursuant to court process. Whenever
a disclosure of Privacy Act protected records is made in response to the process of a
Federal, State, or local court, the custodian of the records disclosed will make reasonable
efforts to notify the subject of such records that such subject's records were disclosed to
another person under compulsory legal process. Such notice should be accomplished
when the process compelling disclosure becomes a matter of public record. Generally, a
notice sent to the last known address of the subject would be sufficient to comply with
this requirement.
(e) Disclosures in response to requests when not accompanied by court process. Requests
received from attorneys or others for copies of records for use in suits in which the
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Government is not involved, not accompanied by a court process, will be handled by the
component or division having jurisdiction over the subject matter. If the request can be
complied with under § 1.503 or § 1.504, and under the Privacy Act (to the extent that
such records are protected by the Privacy Act), the records requested will be disclosed
upon receipt of the required fee. If, however, the records cannot be furnished under such
authority, the applicant will be advised of the procedure to obtain copies of records as set
forth in paragraphs (b) and (c) of this section.
(f) Suits by or against the Secretary under 38 U.S.C. 3720. Records pertaining to the loan
guaranteed, insured, or made by the Department of Veterans Affairs may be made
available by the General Counsel or the Regional Counsel subject to the usual rules of
evidence, and where authorized under the Privacy Act, after clearance with the
Department of Justice or U.S. Attorney if appropriate.
(g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency virus and sickle
cell anemia treatment or related records under court process. Disclosure of these types of
records, which are protected from unauthorized disclosure under 38 U.S.C. 7332, may be
made only in response to an appropriate order of a court of competent jurisdiction granted
after application showing good cause therefore. In assessing good cause the court is
required to weigh the public interest and the need for disclosure against the injury to the
patient or subject, to the physician-patient relationship, and to the treatment services. The
court, in determining the extent to which any disclosure of all or any part of any record is
necessary, shall impose appropriate safeguards against unauthorized disclosure. As to a
Federal court order satisfying the requirements of this paragraph, the records will be
disclosed as provided in such order. As to a State or local court order satisfying the
requirements of this subsection, the disclosure of the records involved is conditioned
upon satisfying the provisions set forth in paragraph (c)(3) of this section. If the
aforementioned section is satisfied, and a disclosure of records is to be forthcoming, the
records will be disclosed as provided in the court order.
[56 FR 15833, Apr. 18, 1991; 61 FR 7215, 7216, Feb. 27, 1996]
(5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C. 7332)
§ 1.512 Disclosure of loan guaranty information.
(a) The disclosure of records or information contained in loan guaranty files is governed
by the Freedom of Information Act, 5 U.S.C. 552; the Privacy Act, 5 U.S.C. 552a; the
confidentiality provisions of 38 U.S.C. 5701, and the provisions of 38 CFR
1.500-1.584. In addition, the release of names and addresses and the release of
certificates of reasonable value, appraisal reports, property inspection reports, or reports
of inspection on individual water supply and sewage disposal systems shall be governed
by paragraphs (b), (c), (d), and (e) of this section.
(b)(1) Upon request, any person is entitled to obtain copies of certificates of reasonable
value, appraisal reports, property inspection reports, or reports of inspection on individual
water supply and sewage disposal systems provided that the individual identifiers of the
veteran-purchaser(s) or dependents are deleted prior to release of such documents.
However, individual identifiers may be disclosed in accordance with paragraph (b)(2) of
this section. The address of the property being appraised or inspected shall not be
considered an individual identifier.
(Authority: 38 U.S.C. 5701(a), (c))
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) Individual identifiers of veteran purchasers or dependents may be disclosed when
disclosure is made to the following:
(i) The individual purchasing the property;
(ii) The current owner of the property;
(iii) The individual that requested the appraisal or report;
(iv) A person or entity which is considering making a loan to an individual with respect
to the property concerned; or
(v) An attorney, real estate broker, or any other agent representing any of these persons.
(Authority: 38 U.S.C. 5701(c), (h)(2)(D))
(c)(1) The Secretary may release the name, address, or both, and may release other
information relating to the identity of an applicant for or recipient of a Department of
Veterans Affairs-guaranteed, insured, or direct loan, specially adapted housing grant, loan
to finance acquisition of Department of Veterans Affairs-owned property, release of
liability, or substitution of entitlement to credit reporting agencies, companies or
individuals extending credit, depository institutions, insurance companies, investors,
lenders, employers, landlords, utility companies and governmental agencies for any of the
purposes specified in paragraph (c)(2) of this section.
(2) A release may be made under paragraph (c)(1) of this section:
(i) To enable such parties to provide the Department of Veterans Affairs with data which
assists in determining the creditworthiness, credit capacity, income or financial resources
of the applicant for or recipient of loan guaranty administered benefits, or verifying
whether any such data previously received is accurate; or
(ii) To enable the Secretary to offer for sale or other disposition any loan or installment
sale contract.
(Authority; 38 U.S.C. 5701(h)(2)(A), (B), (C))
(d) Upon request, the Secretary may release information relating to the individual's loan
transaction to credit reporting agencies, companies or individuals extending credit,
depository institutions, insurance companies, investors, lenders, employers, landlords,
utility companies and governmental agencies where necessary in connection with a
transfer of information on the status of a Department of Veterans Affairs loan account to
persons or organizations proposing to extend credit or render services or other benefits to
the borrower in order that the person or organization may determine whether to extend
credit or render services or other benefits to the borrower. Such releases shall be made
only if the person or organization seeking the information furnishes the individual's name,
address or other information necessary to identify the individual.
(Authority; 38 U.S.C. 5701(e), (h)(2)(A) and (D)
(e) The Secretary shall maintain information in the loan guaranty file consisting of the
date, notice and purpose of each disclosure, and the name and address of the person to
whom the disclosure is made from the loan guaranty files.
[47 FR 11279, Mar. 16, 1982]
(38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))
§ 1.513 Disclosure of information contained in Armed Forces service and related
medical records in Department of Veterans Affairs custody.
(a) Service records. Information received by the Department of Veterans Affairs from the
Departments of the Army, Navy, Air Force, and the Department of Transportation
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
relative to the military or naval service of a claimant is furnished solely for the official
use of the Department of Veterans Affairs but such information may be disclosed under
the limitations contained in §§ 1.501 through 1.526.
(b) Medical records. Information contained in the medical records (including clinical
records and social data) may be released under the following conditions:
(1) Complete transcript of resume or medical records on request to:
(i) The Department of the Army.
(ii) The Department of the Navy (including naval aviation and United States Marine
Corps).
(iii) The Department of the Air Force.
(iv) The Department of Transportation (Coast Guard).
(v) Selective Service (in case of registrants only).
(vi) Federal or State hospitals or penal institutions when the veteran is a patient or inmate
therein.
(vii) United States Public Health Service, or other governmental or contract agency in
connection with research authorized by, or conducted for, the Department of Veterans
Affairs.
(viii) Registered civilian physicians, on the request of the individual or his or her legal
representative, when required in connection with the treatment of the veteran. (The
transcript or resume should be accompanied by the statement "it is expected that the
information contained herein will be treated as confidential, as is customary in civilian
professional medical practice.")
(ix) The veteran on request, except information contained in the medical record which
would prove injurious to his or her physical or mental health.
(x) The next of kin on request of the individual, or legal representative, when the
information may not be disclosed to the veteran because it will prove injurious to his or
her physical or mental health, and it will not be injurious to the physical or mental health
of the next of kin or cause repugnance or resentment toward the veteran; and directly to
the next of kin, or legal representative, when the veteran has been declared to be insane or
is dead.
(xi) Health and social agencies, on the authority of the veteran or his or her duly
authorized representative.
(2) In addition to the authorizations in paragraph (b)(1) of this section, the Department of
Justice, the Department of the Treasury, and the U.S. Postal Service may, on request, be
given pertinent information from medical records for use in connection with
investigations conducted by these departments. Each such request shall be considered on
its merits, and the information released should be the minimum necessary in connection
with the investigation conducted by these departments.
(3) Compliance with court orders calling for the production of medical records in
connection with litigation or criminal prosecutions will be effected in accordance with §
1.511.
[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60 FR 63926,
63938, Dec. 13, 1995]
§ 1.514 Disclosure to private physicians and hospitals other than Department of
Veterans Affairs.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) When a beneficiary elects to obtain medical attention as a private patient from a
private practitioner or in a medical center other than a Department of Veterans Affairs
hospital, there may be disclosed to such private practitioner or head of such medical
center (Federal, State, municipal, or private), such information as to the medical history,
diagnosis, findings, or treatment as is requested, including the loan of original X-ray
films, whether Department of Veterans Affairs clinical X-rays or service department
entrance and separation X-rays, provided there is also submitted a written authorization
from the beneficiary or his or her duly authorized representative. The information will be
supplied without charge directly to the private physician or medical center head and not
through the beneficiary or representative. In forwarding this information, it will be
accompanied by the stipulations that it is released with consent of or on behalf of the
patient and that the information will be treated as confidential, as is customary in civilian
professional medical practice.
(b) Such information may be released without charge and without consent of the patient
or his or her duly authorized representative when a request for such information is
received from:
(1) The superintendent of a State hospital for psychotic patients, a commissioner or head
of a State department of mental hygiene, or head of a State, county, or city health
department; or
(2) Any fee basis physician or institution in connection with authorized treatment of the
veteran as a Department of Veterans Affairs beneficiary; or
(3) Any physician or medical installation treating the veteran under emergency
conditions.
[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]
§ 1.514a Disclosure to private psychologists.
When a beneficiary elects to obtain therapy or analysis as a private patient from a private
psychologist, such information in the medical record as may be pertinent may be released.
Generally, only information developed and documented by Department of Veterans
Affairs psychologists will be considered pertinent, although other information from the
medical record may be released if it is determined to be pertinent and will serve a useful
purpose to the private psychologist in rendering his or her services. Information will be
released under this section upon receipt of the written authorization of the beneficiary or
his or her duly authorized representative. Information will be forwarded to private
psychologists directly, not through the beneficiary or representative, without charge and
with the stipulation that it is released with consent of or on behalf of the patient and must
be treated as confidential as is customary in regular professional practice.
[34 FR 13368, Aug. 19, 1969]
§ 1.515 To commanding officers of State soldiers' homes.
When a request is received in a Department of Veterans Affairs regional office, center, or
medical center from the commanding officer of a State soldiers' home for information
other than information relative to the character of the discharge from a Department of
Veterans Affairs center or medical center concerning a veteran formerly domiciled or
hospitalized therein, the provisions of § 1.500 are applicable, and no disclosure will be
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
made unless the request is accompanied by the authorization outlined in § 1.503.
However, station heads, upon receipt of a request from the commanding officer of a State
soldiers' home for the character of the discharge of a veteran from a period of hospital
treatment or domiciliary care as a beneficiary of the Department of Veterans Affairs, will
comply with the request, restricting the information disclosed solely to the character of
the veteran's discharge from such treatment or care. Such information will be disclosed
only upon receipt of a specific request therefor from the commanding officer of a State
soldiers' home.
[30 FR 6435, May 8, 1965]
§ 1.516 Disclosure of information to undertaker concerning burial of a deceased
veteran.
When an undertaker requests information believed to be necessary in connection with the
burial of a deceased veteran, such as the name and address of the beneficiary of the
veteran's Government insurance policy, name and address of the next of kin, rank or
grade of veteran and organization in which he or she served, character of the veteran's
discharge, or date and place of birth of the veteran, and it appears that the undertaker is
holding the body awaiting receipt of the information requested, the undertaker, in such
instances, may be considered the duly authorized representative of the deceased veteran
for the purpose of obtaining said information. In ordinary cases, however, the undertaker
will be advised that information concerning the beneficiary of a Government insurance
policy is confidential and cannot be disclosed; the beneficiary will be advised
immediately of the inquiry, and the furnishing of the desired information will be
discretionary with the beneficiary. In no case will the undertaker be informed of the net
amount due under the policy or furnished information not specifically mentioned in this
paragraph.
[46 FR 62059, Dec. 22, 1981]
§ 1.517 Disclosure of vocational rehabilitation and education information to
educational institutions cooperating with the Department of Veterans Affairs.
Requests from educational institutions and agencies cooperating with the Department of
Veterans Affairs in the vocational rehabilitation and education of veterans for the use of
vocational rehabilitation and education records for research studies will be forwarded to
central office with the facility head's recommendation for review by the Under Secretary
for Benefits. Where the request to conduct a research study is approved by the Under
Secretary for Benefits, the facility head is authorized by this section to release
information for such studies from vocational rehabilitation and education records as
required: Provided, however, That any data or information obtained shall not be
published without prior approval of the Under Secretary for Benefits and that data
contained in published material shall not identify any individual veteran.
[30 FR 6435, May 8, 1965]
§ 1.518 Addresses of claimants.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) It is the general policy of the Department of Veterans Affairs to refuse to furnish
addresses from its records to persons who desire such information for debt collection,
canvassing, harassing or for propaganda purposes.
(b) The address of a Department of Veterans Affairs claimant as shown by Department of
Veterans Affairs files may be furnished to:
(1) Duly constituted police or court officials upon official request and the submission of a
certified copy either of the indictment returned against the claimant or of the warrant
issued for his or her arrest.
(2) Police, other law enforcement agencies, or Federal, State, county, or city welfare
agencies upon official written request showing that the purpose of the request is to locate
a parent who has deserted his or her child or children and that other reasonable efforts to
obtain an address have failed. The address will not be released when such disclosure
would be prejudicial to the mental or physical health of the claimant. When an address is
furnished it will be accompanied by the stipulation that it is furnished on a confidential
basis and may not be disclosed to any other individual or agency.
(c) When an address is requested that may not be furnished under §§ 1.500 through 1.526,
the person making the request will be informed that a letter, or in those cases involving
judicial actions, the process or notice in judicial proceedings, enclosed in an unsealed
envelope showing no return address, with the name of the addressee thereon, and bearing
sufficient postage to cover mailing costs will be forwarded by the Department of
Veterans Affairs. If a request indicates that judicial action is involved in which a process
or notice in judicial proceedings is required to be forwarded, the Department of Veterans
Affairs will inform the person who requests the forwarding of such a document that the
envelope must bear sufficient postage to cover costs of mailing and certified or registered
mailing fees, including cost of obtaining receipt for the certified or registered mail when
transmission by this type special mail is desired. At the time the letter, process, or notice
in judicial proceedings is forwarded, the facility's return address will be placed on the
envelope. When the receipt for certified or registered mail or the undelivered envelope is
returned to the Department of Veterans Affairs, the original sender will be notified
thereof: However, the receipt or the envelope will be retained by the Department of
Veterans Affairs. This provision will be applicable only when it does not interfere unduly
with the functions of the Service or division concerned. In no event will letters be
forwarded to aid in the collection of debts or for the purpose of canvassing, harassing, or
propaganda. Neither will a letter be forwarded if the contents could be harmful to the
physical or mental health of the recipient.
(d) Subject to the conditions set forth in § 1.922, the Department of Veterans Affairs may
disclose to consumer reporting agencies information contained in a debtor's claims folder.
Such information may include the debtor's name and/or address, Department of Veterans
Affairs file number, Social Security number, and date of birth.
Sections 1.450 to 1.455 appear at 21 FR 10374, Dec. 28, 1956.
[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at 46 FR 62059,
Dec. 22, 1981]
(38 U.S.C. 5701(g))
§ 1.519 Lists of names and addresses.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Any organization wanting a list of names and addresses of present or former
personnel of the armed services and their dependents from the Department of Veterans
Affairs must make written application to the Department of Veterans Affairs Controller,
except lists of educationally disadvantaged veterans should be requested from the
Director of the nearest regional office. The application must:
(1) Clearly identify the type or category of names and addresses sought;
(2) Furnish proof satisfactory to the Department of Veterans Affairs that the organization
seeking the list is a "nonprofit organization." Normally, evidence establishing that the
organization is exempt from taxation in accordance with the provisions of 26 U.S.C. 501
or is a governmental body or institution will be accepted as satisfying this criteria;
(3) Contain a statement clearly setting forth the purpose for which the list is sought, the
programs and the resources the organization proposes to devote to this purpose, and
establish how such purpose is "directly connected with the conduct of programs and the
utilization of benefits" under title 38, U.S.C.; and
(4) Contain a certification that the organization, and all members thereof who will have
access to the list, are aware of the penalty provisions of 38 U.S.C. 5701(f) and will not
use the list for any purpose other than that stated in the application.
(b) If the Director of the regional office concerned finds that the organization requesting
the list of names and addresses of educationally disadvantaged veterans is a nonprofit
organization and operates an approved program of special secondary, remedial,
preparatory or other educational or supplementary assistance to veterans as provided
under subchapter V, title 38 U.S.C., then he or she may authorize the release of such
names and addresses to the organization requesting them.
(c) The Associate Deputy Assistant Secretary for Information Resources Management,
with the concurrence of the General Counsel, is authorized to release lists of names and
addresses to organizations which have applied for such lists in accordance with paragraph
(a) of this section if he or she finds that the purpose for which the organization desires the
names and addresses is directly connected with the conduct of programs and the
utilization of benefits under title 38 U.S.C. Lists of names and addresses authorized to be
released pursuant to this paragraph shall not duplicate lists released to other elements,
segments, or chapters of the same organization.
(d) If the list requested is one that the Department of Veterans Affairs has previously
compiled or created, in the same format, to carry out one or more of its basic program
responsibilities and it is determined that it can be released, the list may be furnished
without charge. For other types of lists, a charge will be made in accordance with the
provisions of § 1.526.
(e) Upon denial of a request, the Department of Veterans Affairs Controller or Regional
Office Director will inform the requester in writing of the denial and the reasons therefor
and advise the organization that it may appeal the denial to the General Counsel. In each
instance of a denial of a request, the denial and the reasons therefor will be made a matter
of record.
(f) Section 5701(f), title 38 U.S.C., provides that any organization, or member thereof,
which uses the names and addresses furnished it for any purpose other than one directly
connected with the conduct of programs and the utilization of benefits under title 38
U.S.C., shall be fined not more than $ 500 in the case of the first offense and not more
than $ 5,000 in the case of the subsequent offenses. Any instance in which there is
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
evidence of a violation of these penal provisions will be reported in accordance with §
14.560.
(Approved by the Office of Management and Budget under control number 2900-0438)
[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981; 49 FR 32848,
Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]
§ 1.520 Confidentiality of social data.
Persons having access to social data will be conscious of the fact that the family,
acquaintances, and even the veteran have been willing to reveal these data only on the
promise that they will be held in complete confidence. There will be avoided direct,
ill-considered references which may jeopardize the personal safety of these individuals
and the relationship existing among them, the patient, and the social worker, or may
destroy their mutual confidence and influence, rendering it impossible to secure further
cooperation from these individuals and agencies. Physicians in talking with beneficiaries
will not quote these data directly but will regard them as indicating possible directions
toward which they may wish to guide the patient's self-revelations without reproaching
the patient for his or her behavior or arousing natural curiosity or suspicion regarding any
informant's statement. The representatives of service organizations and duly authorized
representatives of veterans will be especially cautioned as to their grave responsibility in
this connection.
[46 FR 62059, Dec. 22, 1981]
§ 1.521 Special restrictions concerning social security records.
Information received from the Social Security Administration may be filed in the
veteran's claims folder without special provisions. Such information will be deemed
privileged and may not be released by the Department of Veterans Affairs except that
information concerning the amount of social security benefits paid to a claimant or the
amount of social security tax contributions made by the claimant may be disclosed to the
claimant or his or her duly authorized representative. Any request from outside the
Department of Veterans Affairs for other social security information will be referred to
the Social Security Administration for such action as they deem proper.
[27 FR 9599, Sept. 28, 1962]
§ 1.522 Determination of the question as to whether disclosure will be prejudicial
to the mental or physical health of claimant.
Determination of the question when disclosure of information from the files, records, and
reports will be prejudicial to the mental or physical health of the claimant, beneficiary, or
other person in whose behalf information is sought, will be made by the Chief Medical
Director; Chief of Staff of a hospital; or the Director of an outpatient clinic.
[33 FR 19009, Dec. 20, 1968]
§ 1.523 [Reserved]
§ 1.524 Persons authorized to represent claimants.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
A duly authorized representative will be:
(a) Any person authorized in writing by the claimant to act for him or her,
(b) An attorney who has filed the declaration required by § 14.629(b)(1) of this chapter,
or
(c) His or her legally constituted fiduciary, if the claimant is incompetent. Where for
proper reasons no legally constituted fiduciary has been or will be appointed, his or her
spouse, his or her children, or, if the claimant is unmarried, either of his or her parents
shall be recognized as the fiduciary of the claimant.
[33 FR 6536, Apr. 30, 1968]
§ 1.525 Inspection of records by or disclosure of information to recognized
representatives of organizations and recognized attorneys.
(a)(1) The accredited representatives of recognized organizations (§ 14.627 of this
chapter) holding appropriate power of attorney and recognized attorneys (§ 14.629(b) of
this chapter) with the written authorization of the claimant may, subject to the restrictions
imposed by paragraph (a)(2) of this section, inspect the claims, insurance and allied
folders of any claimant upon the condition that only such information contained therein
as may be properly disclosed under §§ 1.500 through 1.526 will be disclosed by him or
her to the claimant or, if the claimant is incompetent, to his or her legally constituted
fiduciary. Under the same restrictions, it is permissible to release information from and
permit inspection of loan guaranty folders in which a request for a waiver of the debt of a
veteran or his or her spouse has been received, or where there has been a denial of basic
eligibility for loan guaranty benefits. All other information in the files shall be treated as
confidential and will be used only in determining the status of the cases inspected or in
connection with the presentation to officials of the Department of Veterans Affairs of the
claim of the claimant. The heads of field facilities and the directors of the services
concerned in Central Office will each designate a responsible officer to whom requests
for all files must be made, except that managers of centers with insurance activities will
designate two responsible officials, recommended by the division chiefs concerned, one
responsible for claims and allied folders and the other for insurance files. The term
claimant as used in this paragraph includes insureds.
(2) In the case of a living veteran a representative acting under a power of attorney from
any person not acting on behalf of the veteran will not be permitted to review the records
of the veteran or be furnished any information therefrom to which the person is not
entitled, i.e., information not relating to such person alone. Powers of attorney submitted
by the other person will be considered "Limited" and will be so noted when associated
with the veteran's records. The provisions of this subparagraph are also applicable to
recognized attorneys and the requisite declarations filed by them.
(3) When power of attorney does not obtain, the accredited representative will explain to
the designated officer of the Department of Veterans Affairs the reason for requesting
information from the file, and the information will be made available only when in the
opinion of the designated officer it is justified; in no circumstances will such
representatives be allowed to inspect the file; in such cases a contact report will be made
out and attached to the case, outlining the reasons which justify the verbal or written
release of the information to the accredited representative.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(4) In any case where there is an unrevoked power of attorney or declaration of
representation, no persons or organizations other than the one named in such document
shall be afforded information from the file except under the conditions set forth in §
14.629(b)(2) of this chapter. When any claimant has filed notice with the Department of
Veterans Affairs that he or she does not want his or her file inspected, such file will not
be made available for inspection.
(b)(1) Inspection of folders by accredited representatives or recognized attorneys holding
a written authorization where such cases are being processed shall be in space assigned
for such inspection. Otherwise station heads may permit inspection of folders at the desks
of the accredited representatives, in the office(s) which they regularly occupy.
(2) An insured or after maturity of the insurance by death of the insured, the beneficiary,
may authorize the release to a third person of such insurance information as the insured
or the beneficiary would be entitled to receive, provided there is submitted to the
Department of Veterans Affairs, a specific authorization in writing for this purpose.
(3) Unless otherwise authorized by the insured or the beneficiary, as the case may be,
such authorized representative, recognized attorney or accredited representative shall not
release information as to the designated beneficiary to anyone other than the insured or to
the beneficiary after death of the insured. Otherwise, information in the insurance file
shall be subject to the provisions of §§ 1.500 through 1.526.
(4) Clinical records and medical files, including files for outpatient treatment, may be
inspected by accredited representatives or recognized attorneys holding a written
authorization only to the extent such records or parts thereof are incorporated in the
claims folder, or are made available to Department of Veterans Affairs personnel in the
adjudication of the claim. Records or data in clinical or medical files which are not
incorporated in the claims folder or which are not made available to Department of
Veterans Affairs personnel for adjudication purposes will not be inspected by anyone
other than those employees of the Department of Veterans Affairs whose duties require
same for the purpose of clinical diagnosis or medical treatment.
(5) Under no circumstances shall any paper be removed from a file, except by a
Department of Veterans Affairs employee, for purpose of having an authorized copy
made. Copying of material in a file shall not be permitted except in connection with the
performance of authorized functions under the power of attorney or requisite declaration
of a recognized attorney.
(6) In any case involving litigation against the Government, whether contemplated or
initiated, inspection, subject to the foregoing, shall be within the discretion of the General
Counsel or Regional Counsel, except that in insurance suits under 38 U.S.C. 1975, 1984,
inspection shall be within the discretion of the official having jurisdiction of the claim.
Files in such cases may be released to the Department of Justice, but close liaison will be
maintained to insure their return intact upon termination of the litigation.
(c) Facility heads and the directors of the services concerned in central office will be
responsible for the administrative compliance with and accomplishment of the foregoing
within their jurisdiction, and any violations of the prescribed conditions for inspection of
files or release of information therefrom will be brought to the immediate attention of the
Secretary.
(d) Any person holding power of attorney, a recognized attorney who has filed the
requisite declaration, or the accredited representative of a recognized organization
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
holding power of attorney shall be supplied with a copy of each notice to the claimant
respecting the adjudication of the claim. If a claimant dies before action on the claim is
completed, the person or organization holding power of attorney or the attorney who has
filed the requisite declaration may continue to act until the action is completed except
where the power of attorney or requisite declaration was filed on behalf of a dependent.
(e) When in developing a claim the accredited representative of a recognized organization
finds it necessary to call upon a local representative to assemble information or evidence,
he or she may make such disclosures to the local representative as the circumstances of
the case may warrant, provided the power of attorney to the recognized organization
contains an authorization permitting such disclosure.
[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32 FR 10849, July
25, 1967; 33 FR 6536, Apr. 30, 1968; 61 FR 7215, 7216, Feb. 27, 1996]
§ 1.526 Copies of records and papers.
(a) Any person desiring a copy of any record or document in the custody of the
Department of Veterans Affairs, which is subject to be furnished under §§ 1.501 through
1.526, must make written application for such copy to the Department of Veterans
Affairs installation having custody of the subject matter desired, stating specifically: (1)
The particular record or document the copy of which is desired and whether certified and
validated, or uncertified, (2) the purpose for which such copy is desired to be used.
(b) The types of services provided by the Department of Veterans Affairs for which fees
will be charged are identified in paragraph (i) of this section.
(c) This section applies to the services furnished in paragraph (b) of this section when
rendered to members of the public by the Department of Veterans Affairs. It does not
apply to such services when rendered to or for other agencies or branches of the Federal
Government, or State and local governments when furnishing the service will help to
accomplish an objective of the Department of Veterans Affairs, or when performed in
connection with a special research study or compilation when the party requesting such
services is charged an amount for the whole job.
(d) When copies of a record or document are furnished under §§ 1.506, 1.507, 1.510, and
1.514, such copies shall be supplied without charge. Moreover, free service may be
provided, to the extent of one copy, to persons who have been required to furnish original
documents for retention by the Department of Veterans Affairs.
(e) The following are circumstances under which services may be provided free at the
discretion of facility heads or responsible Central Office officials:
(1) When requested by a court, when the copy will serve as a substitute for personal court
appearance of a Government witness.
(2) When furnishing the service free saves costs or yields income equal to the direct costs
of the agency providing the service. This includes cases where the fee for the service
would be included in a billing against the Government (for example, in cost-type
contracts, or in the case of private physicians who are treating Government beneficiaries
at Government expense).
(3) When a service is occasional and incidental, not of a type that is requested often, and
if it is administratively determined that a fee would be inappropriate in such an
occasional case.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(f) When information, statistics, or reports are released or furnished under § 1.501 or §
1.519, the fee charge, if any, will be determined upon the merits of each individual
application.
(g) In those cases where it is determined that a fee shall be charged, the applicant will be
advised to deposit the amount of the lawful charge for the copy desired. The amount of
such charge will be determined in accordance with the schedule of fees prescribed in
paragraph (i) of this section. The desired copy will not be delivered, except under court
subpoena, until the full amount of the lawful charge is deposited. Any excess deposit of $
1 or more over the lawful charge will be returned to the applicant. Excess deposits of less
than $ 1 will be returned upon request. When a deposit is received with an application,
such a deposit will be returned to the applicant should the application be denied.
(h) Copies of reports or records received from other Government departments or agencies
will not be furnished except as provided in § 1.513.
(i) Fees to be charged.
(1) Schedule of fees:
Activity
Fees
(i) Duplication of document by any type of
$0.15 per page after first
reproduction process to produce plain one-sided 100 one-sided pages.
paper copies of a standard size (8 1/2 " x 11";
8 1/2 " x 14"; 11" x 14")
(ii) Duplication of non-paper records, such as
microforms, audiovisual materials (motion
pictures, slides, laser optical disks, video
tapes, audiotapes, etc.) computer tapes and
disks, diskettes for personal computers, and
any
other automated media output
Actual direct cost to the
Agency as defined in
§ 1.555(a)(2) of this part to
the extent that it pertains
to the cost of duplication.
(iii) Duplication of documents by any type of Actual direct cost to the
reproduction process not covered by paragraphs Agency as defined in
(i)(1) (i) and (ii) of this section to produce § 1.555(a)(2) of this part
a
copy in a form reasonably usable by a requester to the extent that it
pertains to the cost of
duplication.
(iv) Providing special information, statistics, Actual cost to the Agecny
reports, drawings, specifications, lists of
including computer and
names and addresses (either in paper or machine manual search costs, copying
readable form), computer or other machine
costs, labor, and material
readable output
and overhead expenses.
(v) Attestation under the seal of the Agency
$3.00 per document so
certified.
(vi) Providing abstracts or copies of medical
and dental records to insurance companies for
other than litigation purposes
$10.00 per request.
(vii) Providing files under court subpoena
Actual direct cost to the
Agency.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Note. -- If VA regularly contracts for duplicating services related to providing the
requested records, such as the duplication of microfilm or architect's plans and drawings,
the contractor fees may be included in the actual direct cost to the Agency)
(2) Benefit records. When VA benefit records are requested by a VA beneficiary or
applicant for VA benefits, the duplication fee for one complete set of such records will be
waived.
(Authority: 38 U.S.C. 5702(b))
(j) If the copy is to be transmitted by certified or registered mail, airmail, or special
delivery mail, the postal fees therefor shall be added to the other fees provided in
paragraph (i) of this section (or the order must include postage stamps or stamped return
envelopes for the purpose).
(k) Those Department of Veterans Affairs installations not having copying equipment are
authorized to arrange with the nearest Department of Veterans Affairs installation having
such equipment to make the necessary authorized copies of records or documents.
(l) Administration, staff office, and field facility heads are authorized to designate
employees to certify copies of records and papers furnished under the provisions of
paragraph (a) of this section.
[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33 FR 9342, June
26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4, 1972; 39 FR 3938, Jan. 31,
1974; 53 FR 10376, Mar. 31, 1988; 54 FR 34980, Aug. 23, 1989]
(38 U.S.C. 5702(b))
§ 1.527 Administrative review.
(a) Any person may, in the event of a denial of his or her request to inspect or obtain
information from or copies of records within the purview of §§ 1.501 through 1.526,
appeal such denial. Such appeal, stating the circumstances of the denial, should be
addressed, as appropriate, to the field facility, administration, or staff office head.
(b) A denial action not reversed by a field facility, administration, or staff office head on
appeal, will be referred through normal channels to the General Counsel.
(c) The final agency decision in such appeals will be made by the General Counsel or the
Deputy General Counsel.
[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
RELEASE OF INFORMATION FROM DEPARTMENT OF VETERANS
AFFAIRS RECORDS OTHER THAN CLAIMANT RECORDS
§ 1.550 General.
§ 1.551 [Reserved]
§ 1.552 Public access to information that affects the public when not published in the
Federal Register as constructive notice.
§ 1.553 Public access to other reasonably described records.
§ 1.553a Time limits for Department of Veterans Affairs response to requests for
records.
§ 1.554 Exemptions from public access to agency records.
§ 1.554a Predisclosure notification procedures for confidential commercial
information.
§ 1.555 Fees.
§ 1.556 Requests for other reasonably described records.
§ 1.557 Administrative review.
§ 1.558 [Reserved]
§ 1.559 [Reserved]
§ 1.550 General.
The Department of Veterans Affairs policy is one of disclosure of information from
agency records to the extent permitted by law. This includes the release of information
which the Department of Veterans Affairs is authorized to withhold under 5 U.S.C. 552(b)
(see § 1.554) if it is determined: (a) By the Secretary of Veterans Affairs or the Deputy
Secretary that disclosure of such information will serve a useful purpose or (b) by an
administration, staff office, or field facility head or designee under § 1.556(a) that
disclosure will not adversely affect the proper conduct of official business or constitute
an invasion of personal privacy.
[40 FR 12656, Mar. 20, 1975]
Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.551 [Reserved]
§ 1.552 Public access to information that affects the public when not published in
the Federal Register as constructive notice.
(a) All final orders in such actions as entertained by the Contract Appeals Board, those
statements of policy and interpretations adopted by the Department of Veterans Affairs
but not published in the FEDERAL REGISTER, and administrative manuals and staff
instructions that affect any member of the public, unless promptly published and copies
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
offered for sale, will be kept currently indexed by the office of primary program
responsibility or the Manager, Administrative Services, as determined by the Secretary or
designee. Such index or indexes or supplements thereto will be promptly published,
quarterly or more frequently, and distributed (by sale or otherwise) unless the Department
of Veterans Affairs determines by order published in the FEDERAL REGISTER that
publication would be unnecessary and impracticable, in which case the Department of
Veterans Affairs will nonetheless provide copies of such index or indexes or supplements
thereto on request at a cost not to exceed the direct cost of duplication. Both the index
and the materials indexed as required by this paragraph will be made available to the
public, for inspection and copying. Public reading facilities for this purpose will be
maintained in Department of Veterans Affairs Central Office and Department of Veterans
Affairs field facilities, open to the public during the normal duty hours of the office in
which located. Orders made in the adjudication of individual claims under laws
administered by the Department of Veterans Affairs are confidential and privileged by
statute (38 U.S.C. 5701) and so are exempt from this requirement.
(b) The voting records of the Contract Appeals Board will be maintained in a public
reading facility in the Office of the Board in Central Office and made available to the
public upon request.
(c) When publishing or making available to the public any opinion, order, statement of
policy, interpretation, staff manual or instruction to staff, identifying details will be
deleted, and the deletion justified in writing, to the extent required to prevent a clearly
unwarranted invasion of personal privacy.
(d) No final order, opinion, statement of policy, interpretation, staff manual or instruction
which is issued, adopted, or promulgated after July 4, 1967, that affects any member of
the public may be relied upon, used, or cited as precedent against any private party unless
it has been indexed and either made available or published as provided in this section or
unless that private party shall have actual and timely notice of the terms thereof.
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975]
Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.553 Public access to other reasonably described records.
(a) Except for requests for records which are processed under §§ 1.551 and 1.552 of this
part, unless otherwise provided for in title 38, Code of Federal Regulations, all requests
for records shall be processed under paragraph (b) of this section, as well as under any
other VA law or regulation governing access to or confidentiality of records or
information. Records or information customarily furnished to the public in the regular
course of the performance of official duties may be furnished to the public without
reference to paragraph (b) of this section. To the extent permitted by other laws and
regulations, VA will also consider making available records which it is permitted to
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
withhold under the FOIA if it determines that such disclosure could be in the public
interest.
(b) Reasonably described records in VA custody, or copies thereof, other than records
made available to the public under provisions of §§ 1.551 and 1.552 of this part, or unless
otherwise provided for in title 38, Code of Federal Regulations, requested in accordance
with published rules stating the time, place, fees (if any), and procedures to be followed,
will be made promptly available, except as provided in § 1.554 of this part, to any person
upon request. Such request must be in writing, over the signature of the requester and
must contain a reasonable description of the record desired so that it may be located with
relative ease. The request should be made to the office concerned (having jurisdiction of
the record desired) or, if not known, to the Director or Veterans Service Center
Manager in the nearest VA regional office; the Director, or Chief, Medical
Administration Service, or other responsible official of VA medical facility where most
recently treated; or to the Department of Veterans Affairs Central Office, 810 Vermont
Avenue NW., Washington, DC 20420. Personal contacts should normally be made during
the regular duty hours of the office concerned, which are 8 a.m. to 4:30 p.m. Monday
through Friday for VA Central Office and most field facilites.
[53 FR 10377, Mar. 31, 1988; 71 FR 28585, May 17, 2006]
(5 U.S.C. 552(a)(3))
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.553a Time limits for Department of Veterans Affairs response to requests for
records.
(a) When a request for records made under § 1.551, § 1.552 or § 1.553 is received it will
be promptly referred for action to the proper employee designated in accordance with §
1.556 to take initial action on granting or denying requests to inspect or obtain
information from or copies of the records described.
(b) Any such request will then be promptly evaluated and a determination made within 10
days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of the
request whether the Department of Veterans Affairs will comply with the request. Upon
determination to comply or deny the request the person making the request will be
notified immediately of the determination and the reasons therefor, and of the right of the
person to appeal to the Secretary of Veterans Affairs any adverse determination. Records
to be furnished will be supplied promptly.
(c) Upon receipt of such an appeal from an adverse determination it will be evaluated and
a further determination made within 20 days (excepting Saturdays, Sundays, and legal
public holidays) after receipt of the appeal. If on appeal the denial is in whole or in part
upheld the Department of Veterans Affairs will notify the requester of the provisions for
judicial review of this determination. (See §§ 1.557 and 1.558.)
(d) In unusual circumstances, specifically as follows, the time limits in paragraphs (b)
and (c) of this section may be extended by written notice to the requester setting forth the
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
reasons for such extension and the date on which a determination is expected to be
dispatched. The date specified will not result in an extension for more than 10 working
days. Unusual circumstances will be interpreted to mean, but only to the extent
reasonably necessary to the proper processing of the particular request, as follows:
(1) The need to search for and collect the requested records from field facilities or other
establishments that are separate from the office processing the request;
(2) The need to search for, collect, and appropriately examine a voluminous amount of
separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with
another agency having a substantial interest in the determination of the request or among
two or more components of the Department of Veterans Affairs having substantial
subject-matter interest therein.
(e) Pursuant to section 552(a)(6), title 5 U.S.C., any person making a request to the
Department of Veterans Affairs for records under section 552(a) (1), (2) or (3) (see §§
1.551, 1.552 and 1.553) will be deemed to have exhausted his or her administrative
remedies with respect to such request if the Department of Veterans Affairs fails to
comply with the applicable time limit provisions of this section. If, however, the
Government can show exceptional circumstances exist and that the Department of
Veterans Affairs is exercising due diligence in responding to the request, the statute also
permits the court to retain jurisdiction and allow the Department of Veterans Affairs
additional time to complete its review of the records.
(f) Requests for the release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody pertaining to claims under any
of the laws administered by the Department of Veterans Affairs (covered by §§ 1.500
through 1.527) may also be initiated under 5 U.S.C. 552. Such requests will also be
evaluated, a determination made within 10 days (excepting Saturdays, Sundays, and legal
public holidays) after the receipt of the request whether the Department of Veterans
Affairs will comply with the request, and the requester notified immediately of the
determination and the reasons therefor, and of the right of the person to appeal to the
Secretary of Veterans Affairs any adverse determination. Records to be furnished will be
supplied promptly.
[40 FR 12657, Mar. 20, 1975]
Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.554 Exemptions from public access to agency records.
(a) The exemptions in this paragraph constitute authority to withhold from disclosure
certain categories of information in Department of Veterans Affairs records except that
any reasonably segregable portion of a record shall be provided to any person requesting
such record after deletion of the portions which are exempt under this paragraph.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(1) Specifically authorized under criteria established by an Executive order to be kept
secret in the interest of the national defense or foreign policy, and are in fact properly
classified pursuant to such Executive order.
(2) Related solely to internal Department of Veterans Affairs personnel rules and
practices.
(3) Specifically exempted from disclosure by statute other than 5 U.S.C. 552b, provided
that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no
discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to particular types of matters
to be withheld.
(4) Trade secrets and commercial or financial information obtained from any person and
privileged or confidential.
(5) Interagency or intra-agency memorandums or letters which would not be available by
law to a private party in litigation with the Department of Veterans Affairs.
(6) Personnel and medical files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of personal privacy.
(7) Records or information compiled for law enforcement purposes, but only to the extent
that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal
privacy;
(iv) Could reasonably be expected to disclose the identity of a confidential source,
including a State, local or foreign agency or authority or any private institution which
furnished information on a confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security intelligence
investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk circumvention of the
law, or
(vi) Could reasonably be expected to endanger the life or physical safety of any
individual.
(Authority: 5 U.S.C. 552(b)(7))
(8) Contained in or related to examination, operating, or condition reports prepared by, on
behalf of, or for the use of any agency responsible for the regulation or supervision of
financial institutions.
(9) Geological and geophysical information and data (including maps) concerning wells.
(b) Information in the categories exempted under paragraph (a) of this section, other than
in paragraph (a)(3) which is applicable to Department of Veterans Affairs claimant
records, will be released only as authorized in § 1.550. The release of information from
Department of Veterans Affairs claimant records will be made only in accordance with
§§ 1.501 through 1.526.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c)(1) Whenever a request is made which involves access to records described in
paragraph (a)(7)(i) of this section and
(i) The investigation or proceeding involves a possible violation of criminal law, and
(ii) There is reason to believe that
(A) The subject of the investigation or proceeding is not aware of its pendency, and
(B) Disclosure of the existence of the records could reasonably be expected to interfere
with enforcement proceedings, the Agency may, during only such time as that
circumstance continues, treat the records as not subject to the requirements of this
section.
(2) Whenever informant records maintained by a criminal law enforcement agency under
an informant's name or personal identifier are requested by a third party according to the
informant's name or personal identifier, the Department may treat the records as not
subject to the requirements of this section unless the informant's status as an informant
has been officially confirmed.
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975; 42 FR 37976,
July 26, 1977; 53 FR 9442, Mar. 23, 1988]
(5 U.S.C. 552(c)(1) and (c)(2))
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.554a Predisclosure notification procedures for confidential commercial
information.
(a) General. During the conduct of its business the Department of Veterans Affairs (VA)
may acquire records which contain confidential commercial information, as defined in
paragraph (b) of this section. Such records will not be released in response to a Freedom
of Information Act (FOIA) request, except under the provisions of this section. This
section establishes uniform VA procedures for giving submitters predisclosure notice of
requests for their records which contain confidential commercial information that may be
exempt from disclosure under 38 CFR 1.554(a)(4). These procedures are required by
Executive Order 12600, Predisclosure Notification Procedures for Confidential
Commercial Information, dated June 23, 1987.
(b) Definitions. (1) Confidential commercial information means records provided to the
government by a submitter that arguably contain material exempt from release under
Exemption 4 of the FOIA, 5 U.S.C. 552 (b)(4), as implemented by § 1.554 of this part,
because disclosure could reasonably be expected to cause substantial competitive harm.
(2) Submitter means any person or entity who provides confidential commercial
information to the government. The term "submitter" includes, but is not limited to
corporations, State governments, and foreign governments.
(c) Notification to submitters of confidential commercial information. 1When a request is
received, for a submitter's record(s), or information which contains confidential
commercial information, and the request is being processed under the FOIA, 5 U.S.C.
552, the submitter will be promptly notified in writing of the request when required by
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paragraph (d) of this section. The notification will advise the submitter that a request for
its record(s) has been received and is being processed under the FOIA. The notice will
describe the exact nature of the record(s) requested or will provide to the submitter copies
of the record(s) or portions thereof containing the requested confidential commercial
information. It will also inform the submitter of the opportunity to object to the disclosure
in writing within 10 working days, and of the requirements for such a written objection,
as described in paragraph (f) of this section. The notification will be sent by certified mail,
return receipt requested.
(d) When notification is required. (1) For confidential commercial information submitted
to VA prior to January 1, 1988, notification to submitters is required whenever:
(i) The records are less than 10 years old and the requested information has been
designated by the submitter as confidential commercial information; or
(ii) VA facility, administration, or staff office which has custody of the requested records
has reason to believe that disclosure of the requested information could reasonably be
expected to cause substantial competitive harm.
(2) For confidential commercial information submitted to VA on or after January, 1, 1988,
notification is required whenever:
(i) The submitter has in good faith designated the requested records as confidential
information in accordance with paragraph (e) of this section; or
(ii) VA facility, administration, or staff office which has custody of the requested records
has reason to believe that disclosure could reasonably be expected to cause substantial
competitive harm.
(e) Designation by submitters of information as confidential commercial information. (1)
When business records are provided to VA, the submitter may appropriately designate
any records or portions thereof which contain confidential commercial information, the
disclosure of which could reasonably be expected to cause substantial competitive harm.
This designation may be made at the time the information or record is given to VA or
within a reasonable period of time thereafter, but not later than 60 days after receipt of
the information by VA. Information so designated will be clearly identified by marking it
with the words "confidential commercial information" or by an accompanying detailed
written description of the specific kinds of information that is designated. If a complete
document or record is designated, the cover page of the document or record will be
clearly marked "This entire (document, record, etc.) consists of confidential commercial
information." If only portions of documents are designated, only those specific
designated portions will be conspicuously annotated as "confidential commercial
information."
(2) A designation described in paragraph (e)(1) of this section will remain in effect for a
period of not more than 10 years after submission to VA, unless the submitter provides
acceptable justification for a longer specific period. If a shorter designation period is
adequate, the submitter's designation should include the earlier expiration date. Whenever
possible, the submitter's designation should be supported by a statement or certification
by an officer or authorized representative of the submitter that the records are in fact
confidential commercial information and have not been published or made available to
the public.
(f) Opportunity to object to disclosure. (1) When notification to a submitter is made
pursuant to paragraph (c) of this section, the submitter or designee may object to the
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disclosure of any specified portion of the record(s). Such objection will be in writing, will
be addressed to the VA official who provided notice, will identify the specific record(s)
or portion(s) of records that should not be disclosed, will specify all grounds upon which
disclosure is opposed, and will explain in detail why the information is considered to be a
trade secret or confidential commercial information, i.e., why disclosure of the specified
records could reasonably be expected to cause substantial competitive harm. Information
provided by a submitter pursuant to this paragraph may itself be subject to disclosure
under the FOIA.
(2) Any objection to disclosure must be submitted within 10 working days after receipt
by the submitter of notification as provided for in paragraph (c) of this section.
(3) If an objection to disclosure is received within the 10 working day time period,
careful consideration will be given to all specified grounds for nondisclosure prior to
making an administrative determination whether to disclose the record. When it is
determined to disclose the requested record(s) or portions of records which are the
subject of an objection, the submitter will be provided a written statement of the VA
decision, the reason(s) that the submitter's objections to disclosure were overruled, a
description or copy of the exact information or record(s) to be disclosed which were the
subject of an objection, and the specified date of disclosure. The date of disclosure will
not be less than 10 working days from the date this notice is placed into mail delivery
channels.
(g) Notices to requester. (1) When a request is received for records that may contain
confidential commercial information protected by FOIA exemption (b)(4), 5 U.S.C.
552(B)(4), the requester will be notified that the request is being processed under the
provisions of this regulation and, as a consequence, there may be a delay in receiving a
response.
(2) Whenever a submitter is notified, pursuant to paragraph (c) of this section, that VA
has received a request for records which had been provided by such submitter, and that
such request was being processed under the FOIA, the requester will be notified that the
submitter is being provided an opportunity to comment on the request. The notice to the
requester should not include any of the specific information contained in the records
being requested.
(3) Whenever VA notifies a submitter of a final decision, the requester will also be
notified by separate correspondence. This notification to the requester may be contained
in VA's FOIA decision.
(h) Notices of lawsuit. Whenever a FOIA requester brings suit seeking to compel
disclosure of confidential commercial information, the submitter of the information will
be promptly notified.
(i) Exceptions to the notification requirements. The predisclosure notification
requirements in paragraph (c) of this section need not be followed if:
(1) It is determined that the record(s) or information should not be disclosed;
(2) The record(s) requested have been published or have been officially made available to
the public;
(3) Disclosure of the record(s) or information is required by law (other than the FOIA, 5
U.S.C. 552);
(4) Disclosure is required by an Agency rule that:
(i) Was adopted pursuant to notice and public comment;
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(ii) Specifies narrow classes of records submitted to VA that are to be released under the
FOIA; and
(iii) Provides in exceptional circumstances for notice when the submitter provides written
justification, at the time the information is submitted or a reasonable time thereafter, that
disclosure of the information could reasonably be expected to cause substantial
competitive harm;
(5) The record(s) requested are not designated by the submitter as exempt from disclosure
in accordance with paragraph (e) of this section, and the submitter had an opportunity to
do so at the time of submission of the record(s) or a reasonable time thereafter, and VA
does not have substantial reason to believe that disclosure of the information would result
in competitive harm; or
(6) The designation made by the submitter in accordance with paragraph (e) of this
section appears obviously frivolous, except that, in such case, VA must still provide the
submitter with advance written notice of any final administrative disclosure
determination not less than 10 working days prior to the specified disclosure date.
(Approved by the Office of Management and Budget under control number 2900-0393)
[57 FR 2229, Jan. 21, 1992]
(38 U.S.C. 501; 5 U.S.C. 552(b)(4): E.O. 12600 (52 FR 23781))
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.555 Fees.
(a) Definitions of terms. For the purpose of this section, the following definitions apply:
(1) Commercial use request means a request from or on behalf of one who seeks
information for a use or purpose that furthers the commercial, trade or profit interests of
the requester or the person on whose behalf the request is made. To determine whether a
request properly belongs in this category, consideration must be given to the use to which
a requester will put the documents requested. Where the use of the records sought is not
clear in the request or where there is reasonable cause to doubt the use to which the
requester will put the records sought, additional information may be sought from the
requester before assigning the request to a specific category.
(2) Direct costs means those expenditures which VA actually incurs in searching for and
duplicating (and in the case of commercial use requests, reviewing) documents to
respond to a Freedom of Information Act (FOIA) request. Direct costs include, for
example, the salary of the employee performing work, i.e., the basic rate of pay for the
employee, plus 16 percent of that rate to cover benefits, and the cost of operating
duplicating machinery. Not included in direct costs are overhead expenses such as costs
of space, and heating or lighting of the facility in which the records are stored.
(3) Duplication means the process of making a copy of a document necessary to respond
to a FOIA request. Such copies can take the form of paper copy, microform, audiovisual
materials or machine readable documentation (e.g., magnetic tape or disk), among others.
The copy provided must be in a form that is reasonably usable by requesters.
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(4) Educational institution means a preschool, a public or private elementary or
secondary school, an institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional education, and an
institution of vocational education, which operates a program or programs of scholarly
research. To determine whether a request properly belongs in this category, the request
must be evaluated to ensure that it is apparent from the nature of the request that it serves
a scholarly research goal of the institution, rather than an individual goal of the requester
or a commercial goal of the institution.
(5) Non-commercial scientific institution means an institution that is not operated on a
commercial basis (as that term is referenced under Commercial use request of this
paragraph) and which is operated solely for the purpose of conducting scientific research,
the results of which are not intended to promote any particular product or industry.
(6) Representative of the news media means any person actively gathering news for an
entity that is organized and operated to publish or broadcast news to the public. The term
news means information that is about current events or that would be of current interest
to the public. Examples of news media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but only in those
instances when they can qualify as disseminators of news) who make their products
available for purchase or subscription by the general public. These examples are not
intended to be all inclusive. As traditional methods of news delivery evolve (e.g.,
electronic dissemination of newspapers through telecommunications services), such
alternative media will be included in this category. Freelance journalists may be regarded
as working for a news organization if they can demonstrate a solid basis for expecting
publication through that organization, even though not actually employed by it. A
publication contract would be the clearest proof, but the requester's past publication
history can be considered also. In any case, freelancers who do not qualify for inclusion
in the representative of the news media category may seek a reduction or waiver of fees
under paragraph (f) of this section.
(7) Review means the process of examining documents located in response to a
commercial use request (see definition of commercial use request in this section) to
determine whether any portion of any document located is permitted to be withheld. It
also includes processing any documents for disclosure in response to a commercial use
request, e.g., doing all that is necessary to excise them and otherwise prepare them for
release. The term review does not include time spent resolving general legal or policy
issues regarding the application of exemptions.
(8) Search means all the time spent looking for material that is responsive to a request,
including page-by-page or line-by-line identification of material within documents.
Searches may be done manually or by computer using existing programs. The most
efficient and least expensive manner of searching for material will be used to minimize
costs to VA and the requester. For example, line-by-line searches will not be conducted
when duplicating an entire document is the least expensive and quicker method of
complying with a request. The term search does not cover the time spent to review
documents to determine whether all or portions thereof can be withheld under one of the
nine categories of exemptions identified in § 1.554 of this part.
(b) Fees to be charged. (1) Except as provided in paragraphs (c), (d), (f) and (g) of this
section, the Department of Veterans Affairs will charge fees that recoup the full
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allowable direct costs for responding to each request from the public. Such fees will be
charged in accordance with the schedule of fees in paragraph (e) of this section, and other
requirements or restrictions in this regulation. The most efficient and least costly methods
will be used to comply with requests for documents made under the FOIA.
(2) If it is estimated that charges for duplication determined by using the fee schedule in §
1.555(e) of this part are likely to exceed $ 25, the requester will be notified of the
estimated amount of fees, unless the requester has indicated in advance his or her
willingness to pay fees as high as those anticipated. Such notice will offer the requester
the opportunity to confer with Department personnel with the object of reformulating the
request to meet his or her needs at a lower cost.
(3) Each administration and staff office upon approval of the Secretary is authorized to
contract with private sector services to locate, reproduce, and disseminate records in
response to FOIA requests when that is the most efficient and least costly method. If a
contractor is used, the ultimate cost to the requester can be no greater than it would if the
administration, staff office, or field facility performed the task, itself. In no case may a
administration, staff office, or field facility contract out responsibilities which the FOIA
provides that they alone may discharge, such as determining the applicability of an
exemption, or determining whether to waive or reduce fees.
(4) When documents that would be responsive to a request are maintained for distribution
by agencies operating statutory-based fee schedule programs, in which the agency is
required to set the level of fees for particular types of records, such as the National
Technical Information Service or the Government Printing Office, the requester of such
documents will be informed of the steps necessary to obtain records from those sources,
rather than from VA.
(c) Restrictions on assessing fees. With the exception of commercial use requests no
charges will be assessed for the first 100 pages of duplication and the first two hours of
search time. Moreover, no fees are to be charged any requester, including commercial use
requesters, if the cost of collecting the fee is equal to or greater than the fee itself. These
provisions work together so that, except for commercial use requests, fees will not be
assessed until the free search and duplication have been provided. For example, if a
request takes two hours and ten minutes of search time and results in 105 reproduced
pages of documents, fees can be charged for only 10 minutes of search time and for only
five pages of reproduction. If this cost were equal to or less than the cost to VA of billing
the requester and processing the fee collected, no charges would be assessed. (NOTE:
The cost of collecting fees are VA's administrative costs of receiving and recording a
requester's remittance, and processing the fee for deposit in the Treasury Department's
special account. The cost is determined to be negligible. The per-transaction costs to the
Treasury to handle such remittances is negligible and will not be considered in the
Department's determination.)
(1) For purposes of the restriction on assessing fees, the word pages refers to one-sided
paper copies of the standard sizes 8 1/2 X 11 X or 8 1/2 X 14 X or 11 X 14 X .
Accordingly, requesters will not be entitled to 100 microfiche or 100 computer disks free.
One microfiche containing the equivalent of 100 pages or 100 pages of computer printout
might meet the terms of the restriction.
(2) The term search time in this context is based on manual searches. To calculate the
computer search time for the purpose of applying the two-hour search restriction, the
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hourly cost of operating the computer's central processing unit will be combined with the
operator's hourly salary, plus 16 percent of the salary. When the cost of the search
(including the operator time and the cost of the computer to process a request) equals the
equivalent dollar amount of two hours of the salary of the person performing the search,
i.e., the operator, charges will begin to be assessed for a computer search.
(d) Categories of requesters and fees to be charged each category. There are four
categories of FOIA requesters: Commercial use requesters; educational and
non-commercial scientific institutional requesters; requesters who are representatives of
news media; and all other requesters. Specific levels of fees will be charged for each of
these categories as follows:
(1) Commercial use requesters. When a request for documents for commercial use is
received, the full direct costs of searching for, reviewing for release, and duplicating the
records sought will be charged to the requester. Commercial use requesters are not
entitled to two hours of free search time nor 100 free pages of reproduced documents.
Moreover, the commercial use requester will be charged the cost of searching for and
reviewing records even if there is ultimately no disclosure of records. The requester must
reasonably describe the records sought.
(2) Educational and non-commercial scientific institution requesters. These requesters
will be charged only for the cost of reproduction, excluding charges for the first 100
pages. In order to be considered a member of this category, a requester must show that
the request is being made as authorized by and under the auspices of a qualifying
institution and that the records are not sought for a commercial use. If the request is from
an educational institution, the requester must show that the records sought are in
furtherance of scholarly research. If the request is from a non-commercial scientific
institution, the requester has to show that the records are sought in furtherance of
scientific research. Information necessary to support a claim of being categorized as an
educational or non-commercial scientific institution requester will be provided by the
requester, and the requester must reasonably describe the records sought.
(3) Representatives of news media. These requesters will be charged for the cost of
reproduction, only, excluding charges for the first 100 pages. To be included in this
category, a requester must fall within the definition of a representative of the news media
specified in paragraph (a)(vi) of this section, and the request must not be made for
commercial use. A request for records supporting the news dissemination function of the
requester will not be considered to be a request that is for commercial use. Requesters
must reasonably describe the records sought.
(4) All other requesters. Any requester that does not fit into any of the categories in this
section will be charged fees which recover the full reasonable direct cost of searching for
and reproducing records that are responsive to the request, except that the first 100 pages
of reproduction and the first two hours of search time will be furnished without charge. In
addition, under certain circumstances specified in paragraph (f) of this section, fees will
be waived or reduced at the discretion of field facility heads, their designee, or
responsible Central Office officials. Requests from VA beneficiaries, applicants for VA
benefits, or other individuals for records retrievable by their name or other personal
identifier will initially be processed under 38 U.S.C. 5701 and 5 U.S.C. 552a and will be
assessed fees in accordance with the applicable fee provisions of §§ 1.526(i) or 1.577(f)
of this part. To the extent that records are not disclosable under these provisions, the
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disclosure of such records will be evaluated under §§ 1.550 through 1.559 of this part,
and fees will be assessed under paragraph (e) of this section. Requesters must reasonably
describe the records sought.
(e) Schedule of fees:
Activity
Fees
(1) Duplication of documents by any type of
$0.15 per page.
reproduction process to produce plain one-sided
paper copies of a standard size (8 1/2 " x 11";
8 1/2 " x 14"; 11" x 14")
(2) Duplication of non-paper records, such as Actual direct cost to the
microforms, audiovisual materials (motion
Agency (See paragraph (a)(2)
pictures, slides, laser optical disks, video
of this section and, if
tapes, audiotapes, etc.) computer tapes and
costs are likely to exceed
disks, diskettes for personal computers, and
$25.00, paragraph (b)(2) of
any other automated media output
this section.
(3) Duplication of documents by any type of
Actual direct cost to the
reproduction process not covered by paragraphs Agency. (See paragraph (a)(2)
(e)(1) and (2) of this section to produce a copy of this section and, if costs
in a form reasonably usable by the requester
are likely to exceed $25.00,
paragraph (b)(2) of this
section.
(4) Document search by manual (non-automated) Basic hourly salary rate of
methods
the employee(s) performing
the search, plus 16 percent.
(If costs are likely to
exceed $25.00, see paragraph
(g)(2) of this section.)
(Note -- If a department, staff office or field station uses exclusively a
single class of personnel, e.g., all administrative/clerical or all
professional/executive, an average rate for the range of grades involved
may be used).
(5) Document search using automated methods,
Actual direct cost to
such as by computer
perform search. (See
paragraph (c)(2) of this
section, and, if costs are
likely to exceed $25.00, see
paragraph (g)(2) of this
section.)
(6) Document review (use only for commercial
Basic hourly salary rate of
use
requesters)
employee(s) performing
initial review to determine
whether to release
document(s) or portions of
records, plus 16 percent.
(Note. -- Charge for document reviews covers only the time spent reviewing the
document(s) at the initial administrative level to determine applicability
of
a specific FOIA exemption to a particular record or portion of a record. It
does not cover any review incurred at the administrative appeal level once the
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initial exemptions are applied. However, records or portions of records
withheld in full under an exemption which is subsequently determined not to
apply may be reviewed again to determine the applicability of other
exemptions
not previously considered. The cost for such a subsequent review may be
properly assessed).
(7) Other charges: Certifying that records are Where applicable, assess
true copies; Sending records by special methods under provisions of
such as express mail.
§§ 1.526(i) and (j) of this
part, otherwise actual
direct cost of service
performed.
(f) Waiving or reducing fees. (1) Fees for records and services provided in response to a
FOIA request will be waived or reduced when it is determined by responsible Central
Office officials or field station heads or their designee that furnishing the document(s) is
in the public interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is not primarily in the
commercial interest of the requester.
(2) The following factors will be considered in sequence in determining whether
disclosure of information is in the public interest because it is likely to contribute
significantly to the public understanding of the operations or activities of the government:
(i) The subject of the request: Whether the subject of the requested records concerns the
operations or activities of the government;
(ii) The informative value of the information to be disclosed: Whether the disclosure is
likely to contribute to an understanding of government operations or activities;
(iii) The contribution to an understanding of the subject by the public likely to result from
disclosure: Whether disclosure of the requested information will contribute to public
understanding; and
(iv) The significance of the contribution to public understanding: Whether the disclosure
is likely to contribute significantly to public understanding of government operations or
activities.
(3) The following factors will be considered in sequence in determining whether
disclosure of information is primarily in the commercial interest of the requester:
(i) The existence and magnitude of a commercial interest: Whether the requester has a
commercial interest that would be furthered by the requested disclosure; and, if so
(ii) The primary interest in disclosure: Whether the magnitude of the identified
commercial interest of the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial interest of the
requester.
(4) An appeal from an adverse fee waiver or reduction determination will be processed in
the same manner as described in § 1.557 of this part.
(g) Other administrative considerations to improve assessment and collection of fees--(1)
Charging interest--notice and rate. The Department of Veterans Affairs may charge
interest to those requesters who fail to timely pay fees assessed in accordance with these
regulations. Determination to charge interest will be made by the responsible Central
Office official or field facility head or designee. Interest will be assessed on the unpaid
bill beginning on the 31st day following the day on which the original building was sent.
Interest will be at the rate prescribed in section 3717 of title 31 U.S.C., and will accrue
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from the date of the billing. Accounting procedures ensure that a requester who has
remitted the full amount within the time period is properly credited with the payment.
The fact that the fee has been received by VA, even if not processed, will suffice to stay
the accrual of interest.
(2) Charges for unsuccessful search. When it is determined by the responsible Central
Office official or field facility head or designee, charges for searching may be assessed,
even if records are not located to satisfy a request or if records located are determined to
be exempt from disclosure. If it is determined that search charges are likely to exceed $
25, the requester will be notified of the estimated amount of fees, unless the requester has
indicated in advance a willingness to pay fees as high as those anticipated. Such notice
will offer the requester the opportunity to confer with agency personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(3) Aggregating requests. When the responsible Central Office official or field facility
head or designee reasonably believes that a requester or, on rare occasions, a group of
requesters acting in concert, is attempting to break a request down into a series of
requests for the purpose of evading the assessment of fees, the responsible Central Office
official, or field facility head or designee may aggregate (combine) any such requests and
charge accordingly. One element to consider in determining whether a belief would be
reasonable is the time period in which the requests occurred. For example, it is reasonable
to presume that multiple requests within a 30-day time period that seek portion(s) of the
same document(s) is an attempt to avoid payment of charges. For requests made over a
longer period, however, such presumption becomes harder to sustain. In each case, there
must be a solid basis for determining that aggregation is warranted. Caution will be
exercised before aggregating requests from more than one requester. There must be a
concrete basis on which to conclude that the requesters are acting in concert and are
acting specifically to avoid payment. In no case will multiple requests on unrelated
subjects from one requester be aggregated.
(4) Advance payments. The Department of Veterans Affairs may not require a requester
to make an advance payment, i.e., payment before work is commenced or continued on a
request, unless:
(i) The allowable charges that a requester may be required to pay are likely to exceed $
250. Then, the Department of Veterans Affairs should either notify the requester of the
likely cost and obtain satisfactory assurance of full payment, or require an advance
payment of an amount up to the full estimated charges in the case of requesters with no
history of payment; or
(ii) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within
30 days of the date of the billing). Then, the Department of Veterans Affairs may require
the requester to pay the full amount owed, plus any applicable interest as provided in
paragraph (g)(1) of this section, or to demonstrate that he or she has, in fact, paid the fee,
and to make an advance payment of the estimated fee before the Department begins to
process a new request or a pending request from that requester.
(iii) If a requester is required to make advance payments, as described in this section, the
time limits prescribed in § 1.553a of this part, for responding to initial requests and
appeals from initial denials, will begin only after the Department has received the
advance fee payments.
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(5) Debt collection. In the event of non-payment of billed charges for disclosure of
records, the procedures authorized by the Debt Collection Act of 1982 (Pub. L. 97-365)
may be used. This may include disclosure to consumer reporting agencies and use of
collection agencies.
Sections 1.450 to 1.455 appear at 21 FR 10374, Dec. 28, 1956.
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.556 Requests for other reasonably described records.
Each administration, staff office, and field facility head will designate an employee(s)
who will be responsible for initial action on (granting or denying) requests to inspect or
obtain information from or copies of records under their jurisdiction and within the
purview of § 1.553. This responsibility includes maintaining a uniform listing of such
requests. Data logged will consist of: Name and address of requester; date of receipt of
request; brief description of request; action taken on request, granted or denied; citation
of the specific section when request is denied; and date of reply to the requester. In the
field a denial of any such request may be made only by the Director or the designated
employee and in Central Office only by the administration or staff office head or
designee. The letter notifying the requester of the denial will be signed by the official
making the denial decision. Any legal question arising in a field station concerning the
release of information will be referred to the appropriate Regional Counsel for disposition
as contemplated by § 13.401 n* of this chapter. In Central Office such legal questions
will be referred to the General Counsel. Any administrative question will be referred
through administrative channels to the appropriate administration or staff office head. All
denials or proposed denials at the Central Office level will be coordinated with the
Director, Information Service as well as the General Counsel.
n * Editorial Note: At 42 FR 41410, Aug. 17, 1977, § 13.401 was removed.
[40 FR 12658, Mar. 20, 1975; 61 FR 7215, 7216, Feb. 27, 1996]
Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, substituted "Regional
Counsel" for "District Counsel," effective Oct. 1, 1995.]
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.557 Administrative review.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Upon denial of a request, the responsible Department of Veterans Affairs official or
designated employee will inform the requester in writing of the denial, cite the specific
exemption in § 1.554 upon which the denial is based, set forth the names and titles or
positions of each person responsible for the denial of such request, and advise that the
denial may be appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the General Counsel or the
Deputy General Counsel.
[40 FR 12658, Mar. 20, 1975, as amended at 55 FR 21546, May 25, 1990]
Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.
NOTE: Sections 1.550 through 1.559 concern the availability and release of information
from files, records, reports, and other papers and documents in Department of Veterans
Affairs custody other than those pertaining to claims under any of the laws administered
by the Department of Veterans Affairs. As to the release of information from Department
of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series
implement the provisions of 5 U.S.C. 552.
§ 1.558 [Reserved]
§ 1.559 [Reserved]
——————————
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SAFEGUARDING PERSONAL INFORMATION IN DEPARTMENT OF
VETERANS AFFAIRS RECORDS
§ 1.575 Social security numbers in veterans' benefits matters.
§ 1.576 General policies, conditions of disclosure, accounting of certain disclosures,
and definitions.
§ 1.577 Access to records.
§ 1.578 [Reserved]
§ 1.579 Amendment of records.
§ 1.580 Administrative review.
§ 1.581 [Reserved]
§ 1.582 Exemptions.
§ 1.583 [Reserved]
§ 1.584 [Reserved]
§ 1.575 Social security numbers in veterans' benefits matters.
(a) Except as provided in paragraph (b) of this section, no one will be denied any right,
benefit, or privilege provided by law because of refusal to disclose to the Department of
Veterans Affairs a social security number.
(b) VA shall require mandatory disclosure of a claimant's or beneficiary's social security
number (including the social security number of a dependent of a claimant or beneficiary)
on necessary forms as prescribed by the Secretary as a condition precedent to receipt or
continuation of receipt of compensation or pension payable under the provisions of
chapters 11, 13 and 15 of title 38, United States Code, provided, however, that a claimant
shall not be required to furnish VA with a social security number for any person to whom
a social security number has not been assigned. VA may also require mandatory
disclosure of an applicant's social security number as a condition for receiving loan
guaranty benefits and a social security number or other taxpayer identification number
from existing direct and vendee loan borrowers and as a condition precedent to receipt of
a VA-guaranteed loan, direct loan or vendee loan, under chapter 37 of title 38, United
States Code. (Pub. L. 97-365, sec. 4)
(c) A person requested by VA to disclose a social security number shall be told, as
prescribed by § 1.578(c), whether disclosure is voluntary or mandatory. The person shall
also be told that VA is requesting the social security number under the authority of title
38 U.S.C., or in the case of existing direct or vendee loan borrowers, under the authority
of 26 U.S.C. 6109(a) in conjunction with sections 145 and 148 of Pub. L. 98-369, or in
the case of loan applicants, under the authority of section 4 of Pub. L. 97-365. The person
shall also be told that it will be used in the administration of veterans' benefits in the
identification of veterans or persons claiming or receiving VA benefits and their records,
that it may be used in making reports to the Internal Revenue Service where required by
law, and to determine whether a loan guaranty applicant has been identified as a
delinquent taxpayer by the Internal Revenue Service, and that such taxpayers may have
their loan applications rejected, and that it may be used to verify social security benefit
entitlement (including amounts payable) with the Social Security Administration and, for
other purposes where authorized by both title 38 U.S.C., and the Privacy Act of 1974,
(Pub. L. 93-579), or, where required by another statute. (Pub. L. 97-365, sec. 4)
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986; 56 FR 25044,
June 3, 1991]
(38 U.S.C. 5101)
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
§ 1.576 General policies, conditions of disclosure, accounting of certain
disclosures, and definitions.
(a) The Department of Veterans Affairs will safeguard an individual against an invasion
of personal privacy. Except as otherwise provided by law or regulation its officials and
employees will:
(1) Permit an individual to determine what records pertaining to him or her will be
collected, maintained, used, or disseminated by the Department of Veterans Affairs.
(2) Permit an individual to prevent records pertaining to him or her, obtained by the
Department of Veterans Affairs for a particular purpose, from being used or made
available for another purpose without his or her consent.
(3) Permit an individual to gain access to information pertaining to him or her in
Department of Veterans Affairs records, to have a copy made of all or any portion thereof,
and to correct or amend such records.
(4) Collect, maintain, use, or disseminate any record of identifiable personal information
in a manner that assures that such action is for a necessary and lawful purpose, that the
information is correct and accurate for its intended use, and that adequate safeguards are
provided to prevent misuse of such information.
(5) Permit exemptions from records requirements provided in 5 U.S.C. 552a only where
an important public policy need for such exemption has been determined pursuant to
specific statutory authority.
(b) The Department of Veterans Affairs will not disclose any record contained in a
system of records by any means of communication to any person or any other agency
except by written request of or prior written consent of the individual to whom the record
pertains unless such disclosure is:
(1) To those officers and employees of the agency which maintains the record and who
have a need for the record in the performance of their duties;
(2) Required under 5 U.S.C. 552;
(3) For a routine use of the record compatible with the purpose for which it was collected;
(4) To the Bureau of the Census for purposes of planning or carrying out a census or
survey or related activity pursuant to title 13 U.S.C.;
(5) To a recipient who has provided the Department of Veterans Affairs with advance
adequate written assurance that the record will be used solely as a statistical research or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
reporting record, and the record is to be transferred in a form that is not individually
identifiable;
(6) To the National Archives of the United States as a record which has sufficient
historical or other value to warrant its continued preservation by the U.S. Government, or
for evaluation by the Administrator of General Services or designee to determine whether
the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or
under the control of the United States for a civil or criminal law enforcement activity if
the activity is authorized by law, and if the head of the agency or instrumentality has
made a written request to the Department of Veterans Affairs specifying the particular
portion desired and the law enforcement activity for which the record is sought;
(8) To a person pursuant to a showing of compelling circumstances affecting the health or
safety of an individual if upon such disclosure notification is transmitted to the last
known address of such individual;
(9) To either House of Congress, or, to the extent of matter within its jurisdiction, any
committee or subcommittee thereof, any joint committee of Congress or subcommittee of
any such joint committee;
(10) To the Comptroller General, or any authorized representatives, in the course of the
performance of the duties of the General Accounting Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) With respect to each system of records (i.e., a group of records from which
information is retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual) under Department of
Veterans Affairs control, the Department of Veterans Affairs will (except for disclosures
made under paragraph (b)(1) or (2) of this section) keep an accurate accounting as
follows:
(1) For each disclosure of a record to any person or to another agency made under
paragraph (b) of this section, maintain information consisting of the date, nature, and
purpose of each disclosure, and the name and address of the person or agency to whom
the disclosure is made;
(2) Retain the accounting made under paragraph (c)(1) of this section for at least 5 years
or the life of the record, whichever is longer, after the disclosure for which the accounting
is made;
(3) Except for disclosures made under paragraph (b)(7) of this section, make the
accounting under paragraph (c)(1) of this section available to the individual named in the
record at his or her request; and
(4) Inform any person or other agency about any correction or notation of dispute made
by the agency in accordance with § 1.579 of any record that has been disclosed to the
person or agency if an accounting of the disclosure was made.
(d) For the purposes of §§ 1.575 through 1.584, the parent of any minor, or the legal
guardian of any individual who has been declared incompetent due to physical or mental
incapacity or age by a court of competent jurisdiction, may act on behalf of the
individual.
(e) Section 552a(i), title 5 U.S.C., provides that:
(1) Any officer or employee of the Department of Veterans Affairs, who by virtue of his
or her employment or official position, has possession of, or access to, Department of
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Veterans Affairs records which contain individually identifiable information the
disclosure of which is prohibited by 5 U.S.C. 552a or by § 1.575 series established
thereunder, and who knowing that disclosure of the specific material is so prohibited,
willfully discloses the material in any manner to any person or agency not entitled to
receive it, shall be guilty of a misdemeanor and fined not more than $ 5,000.
(2) Any officer or employee of the Department of Veterans Affairs who willfully
maintains a system of records without meeting the notice requirements of 5 U.S.C.
552a(e)(4) (see § 1.578(d)) shall be guilty of a misdemeanor and fined not more than $
5,000.
(3) Any person who knowingly and willfully requests or obtains any record concerning
an individual from the Department of Veterans Affairs under false pretenses shall be
guilty of a misdemeanor and fined not more than $ 5,000.
(f) For purposes of § 1.575 series the following definitions apply:
(1) The term agency includes any executive department, military department,
Government corporation, Government controlled corporation, or other establishment in
the executive branch of the government (including the Executive Office of the President),
or any independent regulatory agency.
(2) The term individual means a citizen of the United States or an alien lawfully admitted
for permanent residence.
(3) The term maintain includes maintain, collect, use, or disseminate.
(4) The term record means any item, collection, or grouping of information about an
individual that is maintained by an agency, including, but not limited to, his or her
education, financial transactions, medical history, and criminal or employment history
and that contains his or her name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print or a photograph.
(5) The term system of records means a group of any records under the control of any
agency from which information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to the individual.
(6) The term statistical record means a record in a system of records maintained for
statistical research or reporting purposes only and not used in whole or in part in making
any determination about an identifiable individual except as provided by section 8 of title
13 U.S.C.
(7) The term routine use means, with respect to the disclosure of a record, the use of such
record for a purpose which is compatible with the purpose for which it was collected.
(g) When the Department of Veterans Affairs provides by a contract for the operation by
or on behalf of the Department of Veterans Affairs of a system of records to accomplish a
Department of Veterans Affairs function, the Department of Veterans Affairs will,
consistent with its authority, cause the requirements of 5 U.S.C. 552a (as required by
subsection (m)) and those of the § 1.575 series to be applied to such system. For the
purposes of 5 U.S.C. 552a(i) and § 1.576(e) any such contractor and any employee of
such contractor, if such contract is agreed to on or after September 27, 1975, will be
considered to be an employee of the Department of Veterans Affairs.
(h) The Department of Veterans Affairs will, for the purposes of 5 U.S.C. 552a, consider
that it maintains any agency record which it deposits with the Administrator of General
Services for storage, processing, and servicing in accordance with section 3103 of title 44
U.S.C. Any such record will be considered subject to the provisions of § 1.575 series
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
implementing 5 U.S.C. 552a and any other applicable Department of Veterans Affairs
regulations. The Administrator of General Services is not authorized to disclose such a
record except to the Department of Veterans Affairs, or under regulations established by
the Department of Veterans Affairs which are not inconsistent with 5 U.S.C. 552a.
(i) The Department of Veterans Affairs will, for the purposes of 5 U.S.C. 552a, consider
that a record is maintained by the National Archives of the United States if it pertains to
an identifiable individual and was transferred to the National Archives prior to September
27, 1975, as a record which has sufficient historical or other value to warrant its
continued preservation by the United States Government. Such records are not subject to
the provisions of 5 U.S.C. 552a except that a statement generally describing such records
(modeled after the requirements relating to records subject to subsections (e)(4)(A)
through (G) of 5 U.S.C. 552a) will be published in the FEDERAL REGISTER.
(j) The Department of Veterans Affairs will also, for the purposes of 5 U.S.C. 552a,
consider that a record is maintained by the National Archives of the United States if it
pertains to an identifiable individual and is transferred to the National Archives on or
after September 27, 1975, as a record which has sufficient historical or other value to
warrant its continued preservation by the United States Government. Such records are
exempt from the requirements of 5 U.S.C. 552a except subsections (e)(4) (A) through (G)
and (e)(9) thereof.
[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975; 47 FR 16323,
Apr. 16, 1982]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 7193, 7200, Feb. 27, 1996, revised Part 404,
effective Feb. 22, 1996.]
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
iii
§ 1.577 Access to records.
Discussion and Analysis in the Veterans Benefits Manual
(a) Except as otherwise provided by law or regulation any individual upon request may
gain access to his or her record or to any information pertaining to him or her which is
contained in any system of records maintained by the Department of Veterans Affairs.
The individual will be permitted, and upon his or her request, a person of his or her own
choosing permitted to accompany him or her, to review the record and have a copy made
of all or any portion thereof in a form comprehensible to him or her. The Department of
Veterans Affairs will require, however, a written statement from the individual
authorizing discussion of that individual's record in the accompanying person's presence.
(b) Any individual will be notified, upon request, if any Department of Veterans Affairs
system of records named contains a record pertaining to him or her. Such request must be
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
in writing, over the signature of the requester. The request must contain a reasonable
description of the Department of Veterans Affairs system or systems of records involved,
as described at least annually by notice published in the FEDERAL REGISTER
describing the existence and character of the Department of Veterans Affairs system or
systems of records pursuant to § 1.578(d). The request should be made to the office
concerned (having jurisdiction over the system or systems of records involved) or, if not
known, to the Director or Department of Veterans Affairs Officer in the nearest
Department of Veterans Affairs regional office, or to the Department of Veterans Affairs
Central Office, 810 Vermont Avenue, NW., Washington, DC 20420. Personal contact
should normally be made during the regular duty hours of the office concerned, which are
8:00 a.m. to 4:30 p.m., Monday through Friday for Department of Veterans Affairs
Central Office and most field facilities. Identification of the individual requesting the
information will be required and will consist of the requester's name, signature, address,
and claim, insurance or other identifying file number, if any, as a minimum. Additional
identifying data or documents may be required in specified categories as determined by
operating requirements and established and publicized by the promulgation of
Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))
(c) The department or staff office having jurisdiction over the records involved will
establish appropriate disclosure procedures and will notify the individual requesting
disclosure of his or her record or information pertaining to him or her of the time, place
and conditions under which the Department of Veterans Affairs will comply to the extent
permitted by law and Department of Veterans Affairs regulation. (5 U.S.C. 552a(f)(2))
(d) Access to sensitive material in records, including medical and psychological records,
is subject to the following special procedures. When an individual requests access to his
or her records, the Department of Veterans Affairs official responsible for administering
those records will review them and identify the presence of any sensitive records.
Sensitive records are those that contain information which may have a serious adverse
effect on the individual's mental or physical health if they are disclosed to him or her. If,
on review of the records, the Department of Veterans Affairs official concludes that there
are sensitive records involved, the official will refer the records to a Department of
Veterans Affairs physician, other than a rating board physician, for further review. If the
physician who reviews the records believes that disclosure of the information directly to
the individual could have an adverse effect on the physical or mental health of the
individual, the responsible Department of Veterans Affairs official will then advise the
requesting individual: (1) That the Department of Veterans Affairs will disclose the
sensitive records to a physician or other professional person selected by the requesting
individual for such redisclosure as the professional person may believe is indicated, and
(2) in indicated cases, that the Department of Veterans Affairs will arrange for the
individual to report to a Department of Veterans Affairs facility for a discussion of his or
her records with a designated Department of Veterans Affairs physician and for an
explanation of what is included in the records. Following such discussion, the records
should be disclosed to the individual; however, in those extraordinary cases where a
careful and conscientious explanation of the information considered harmful in the record
has been made by a Department of Veterans Affairs physician and where it is still the
physician's professional medical opinion that physical access to the information could be
physically or mentally harmful to the patient, physical access may be denied. Such a
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
denial situation should be an unusual, very infrequent occurrence. When denial of a
request for direct physical access is made, the responsible Department of Veterans
Affairs official will: (1) Promptly advise the individual making the request of the denial;
(2) state the reasons for the denial of the request (e.g., 5 U.S.C. 552a(f)(3), 38 U.S.C.
5701(b)(1)); and (3) advise the requester that the denial may be appealed to the General
Counsel and of the procedure for such an appeal.
(Authority: 5 U.S.C. 552a(f)(3))
(e) Nothing in 5 U.S.C. 552a, however, allows an individual access to any information
compiled in reasonable anticipation of civil action or proceeding. (5 U.S.C. 552a(d)(5))
(f) Fees to be charged, if any, to any individual for making copies of his or her record
shall not include the cost of any search for and review of the record, and will be as
follows:
Activity
(1) Duplication of documents by any type of
reproduction process to produce plain one-sided
paper copies of a standard size
(8 1/2 " x 11"; 8 1/2 " x 14"; 11" x 14")
Fees
$0.15 per page after first 10
100 one-sided pages.
(2) Duplication of non-paper records, such as
Actual direct cost to the
microforms, audiovisual materials (motion
Agency as defined in
pictures, slides, laser optical disks, video
§ 1.555(a)(2) of this part
tapes, audio tapes, etc.), computer tapes and to the extent that it
disks, diskettes for personal computers, and
pertains to the cost of
any
other automated media output
duplication.
(3) Duplication of document by any type of
Actual direct cost to the
reproduction process not covered by paragraphs Agency as defined in
(f)(1) or (2) of this section to produce a copy § 1.555(a)(2) of this part
in a form reasonably usable by the requester
to the extent that it
pertains to the cost of
duplication.
Note. -- Fees for any activities other than duplication by any type of reproducing process
will be assessed under the provisions of § 1.526(i) or (j) of this part of any other
applicable law.)
(g) When VA benefit records, which are retrievable by name or individual identifier of a
VA beneficiary or applicant for VA benefits, are requested by the individual to whom the
record pertains, the duplication fee for one complete set of such records will be waived.
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982; 53 FR 10380,
Mar. 31, 1988; 55 FR 21546, May 25, 1990]
(5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
§ 1.578 [Reserved]
§ 1.579 Amendment of records.
(a) Any individual may request amendment of any Department of Veterans Affairs record
pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal
public holidays) after the date or receipt of such request, the Department of Veterans
Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs
will complete the review to amend or correct a record as soon as reasonably possible,
normally within 30 days from the receipt of the request (excluding Saturdays, Sundays,
and legal public holidays) unless unusual circumstances preclude completing action
within that time. The Department of Veterans Affairs will promptly either:
(1) Correct any part thereof which the individual believes is not accurate, relevant, timely
or complete; or
(2) Inform the individual of the Department of Veterans Affairs refusal to amend the
record in accordance with his or her request, the reason for the refusal, the procedures by
which the individual may request a review of that refusal by the Secretary or designee,
and the name and address of such official.
(Authority: 5 U.S.C. 552a(c)(2))
(b) The administration or staff office having jurisdiction over the records involved will
establish procedures for reviewing a request from an individual concerning the
amendment of any record or information pertaining to the individual, for making a
determination on the request, for an appeal within the Department of Veterans Affairs of
an initial adverse Department of Veterans Affairs determination, and for whatever
additional means may be necessary for each individual to be able to exercise fully, his or
her right under 5 U.S.C. 552a.
(1) Headquarters officials designated as responsible for the amendment of records or
information located in Central Office and under their jurisdiction include, but are not
limited to: Secretary; Deputy Secretary, as well as other appropriate individuals
responsible for the conduct of business within the various Department of Veterans Affairs
administrations and staff offices. These officials will determine and advise the requester
of the identifying information required to relate the request to the appropriate record,
evaluate and grant or deny requests to amend, review initial adverse determinations upon
request, and assist requesters desiring to amend or appeal initial adverse determinations
or learn further of the provisions for judicial review.
(2) The following field officials are designated as responsible for the amendment of
records or information located in facilities under their jurisdiction, as appropriate: The
Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office,
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Supply Depot, and Regional Counsel. These officials will function in the same manner at
field facilities as that specified in the preceding subparagraph for headquarters officials in
Central Office.
(Authority: 5 U.S.C. 552a(f)(4))
(c) Any individual who disagrees with the Department of Veterans Affairs refusal to
amend his or her record may request a review of such refusal. The Department of
Veterans Affairs will complete such review not later than 30 days (excluding Saturdays,
Sundays, and legal public holidays) from the date on which the individual request such
review and make a final determination unless, for good cause shown, the Secretary
extends such 30-day period. If, after review, the Secretary or designee also refuses to
amend the record in accordance with the request the individual will be advised of the
right to file with the Department of Veterans Affairs a concise statement setting forth the
reasons for his or her disagreement with the Department of Veterans Affairs refusal and
also advise of the provisions for judicial review of the reviewing official's determination.
(5 U.S.C. 552a(g)(1)(A))
(d) In any disclosure, containing information about which the individual has filed a
statement of disagreement, occurring after the filing of the statement under paragraph (c)
of this section, the Department of Veterans Affairs will clearly note any part of the record
which is disputed and provide copies of the statement (and, if the Department of Veterans
Affairs deems it appropriate, copies of a concise statement of the Department of Veterans
Affairs reasons for not making the amendments requested) to persons or other agencies to
whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)
[47 FR 16324, Apr. 16, 1982; 61 FR 7215, 7216, Feb. 27, 1996]
Sections 1.955 to 1.970 issued under 28 U.S.C. 3720(a)(40 and 5302; 5 U.S.C. 5584.
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, which substituted
"Regional Counsel" for "District Counsel" in paragraph (b)(2), became effective Oct. 1,
1995.]
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
§ 1.580 Administrative review.
(a) Upon denial or a request under 38 CFR 1.577 or 1.579, the responsible Department
of Veterans Affairs official or designated employee will inform the requester in writing
of the denial, cite the reason or reasons and the Department of Veterans Affairs
regulations upon which the denial is based, and advise that the denial may be appealed to
the General Counsel.
(b) The final agency decision in such appeals will be made by the General counsel or the
Deputy General Counsel.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982; 55 FR 21546,
May 25, 1990]
(38 U.S.C. 501)
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
§ 1.581 [Reserved]
§ 1.582 Exemptions.
(a) Certain systems of records maintained by the Department of Veterans Affairs are
exempted from provisions of the Privacy Act in accordance with exemptions (j) and (k)
of 5 U.S.C. 552a.
(b) Exemption of Inspector General Systems of Records. The Department of Veterans
Affairs provides limited access to Inspector General Systems of Records as indicated.
(1) The following systems of records are exempted pursuant to the provisions of 5 U.S.C.
552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G), (H) and (I),
(e)(5) and (8), (f) and (g) of 5 U.S.C. 552a; in addition, the following systems of records
are exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3),
(d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5 U.S.C. 552a:
(i) Investigation Reports of Persons Allegedly Involved in Irregularities Concerning VA
and Federal Laws, Regulations, Programs, etc. -- VA (11 VA51); and
(ii) Inspector General Complaint Center Records -- VA (66VA53).
(2) These exemptions apply to the extent that information in those systems is subject to
exemptions pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).
(3) For the reasons set forth, the systems of records listed under paragraph (b)(1) of this
section are exempted under sections 552a (j)(2) and (k)(2) from the following provisions
of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual
named in a record an accounting which reflects the disclosure of the record to other
persons or agencies. This accounting must state the date, nature and purpose of each
disclosure of the record and the name and address of the recipient. The application of this
provision would alert subjects to the existence of the investigation and identify that such
persons are subject of that investigation. Since release of such information to subjects
would provide them with significant information concerning the nature of the
investigation, it could result in the altering or destruction of derivative evidence which is
obtained from third parties, improper influencing of witnesses, and other activities that
could impede or compromise the investigation.
(ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g) relate to an individual's right
to be notified of the existence of records pertaining to such individual; requirements for
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
identifying an individual who requests access to records; the agency procedures relating
to access to records and the amendment of information contained in such records; and the
civil remedies available to the individual in the event of adverse determinations by an
agency concerning access to or amendment of information contained in record systems.
This system is exempt from the foregoing provisions for the following reasons: To notify
an individual at the individual's request of the existence of records in an investigative file
pertaining to such individual or to grant access to an investigative file could interfere with
investigative and enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of personal privacy of
others, disclose the identity of confidential sources, reveal confidential information
supplied by these sources, and disclose investigative techniques and procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records
in each system of records. The application of this provision could disclose investigative
techniques and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality.
This could compromise the ability to conduct investigations and to identify, detect and
apprehend violators. Even though the agency has claimed an exemption from this
particular requirement, it still plans to generally identify the categories of records and the
sources for these records in this system. However, for the reasons stated in paragraph
(b)(3)(ii) of this section, this exemption is still being cited in the event an individual
wants to know a specific source of information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such
information about an individual that is relevant and necessary to accomplish a purpose of
the agency required by statute or Executive order. These systems of records are exempt
from the foregoing provisions because:
(A) It is not possible to detect the relevance or necessity of specific information in the
early stages of a criminal or other investigation.
(B) Relevance and necessity are questions of judgment and timing. What appears relevant
and necessary may ultimately be determined to be unnecessary. It is only after the
information is evaluated that the relevance and necessity of such information can be
established.
(C) In any investigation the Inspector General may obtain information concerning the
violations of laws other than those within the scope of his/her jurisdiction. In the interest
of effective law enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity and provide leads for those law
enforcement agencies charged with enforcing other segments of civil or criminal law.
(v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to the greatest extent
practicable directly from the subject individual when the information may result in
adverse determinations about an individual's rights, benefits, and privileges under Federal
programs. The application of this provision would impair investigations of illegal acts,
violations of the rules of conduct, merit system and any other misconduct for the
following reasons:
(A) In order to successfully verify a complaint, most information about a complainant or
an individual under investigation must be obtained from third parties such as witnesses
and informers. It is not feasible to rely upon the subject of the investigation as a source
for information regarding his/her activities because of the subject's rights against
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
self-incrimination and because of the inherent unreliability of the suspect's statements.
Similarly, it is not always feasible to rely upon the complainant as a source of
information regarding his/her involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence of an investigation if
an attempt is made to obtain information from the subject. This would afford the
individual the opportunity to conceal any criminal activities to avoid apprehension.
(vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the subject of an
investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether disclosure of the
information is mandatory or voluntary;
(B) The purposes for which the information is intended to be used;
(C) The routine uses which may be made of the information; and
(D) The effects on the subject, if any, of not providing the requested information. The
reasons for exempting this system of records from the foregoing provision are as follows:
(1) The disclosure to the subject of the purposes of the investigation as stated in
paragraph (b)(3)(vi)(B) of this paragraph would provide the subject with substantial
information relating to the nature of the investigation and could impede or compromise
the investigation.
(2) If the complainant or the subject were informed of the information required by this
provision, it could seriously interfere with undercover activities requiring disclosure of
the authority under which the information is being requested. This could conceivably
jeopardize undercover agents' identities and impair their safety, as well as impair the
successful conclusion of the investigation.
(3) Individuals may be contacted during preliminary information gathering in
investigations before any individual is identified as the subject of an investigation.
Informing the individual of the matters required by this provision would hinder or
adversely affect any present or subsequent investigations.
(vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with such accuracy,
relevance, timeliness, and completeness as is reasonably necessary to assure fairness to
the individual in making any determination about an individual. Since the law defines
maintain to include the collection of information, complying with this provision would
prevent the collection of any data not shown to be accurate, relevant, timely, and
complete at the moment of its collection. In gathering information during the course of an
investigation it is not always possible to determine this prior to collection of the
information. Facts are first gathered and then placed into a logical order which
objectively proves or disproves criminal behavior on the part of the suspect. Material
which may seem unrelated, irrelevant, incomplete, untimely, etc., may take on added
meaning as an investigation progresses. The restrictions in this provision could interfere
with the preparation of a complete investigative report.
(viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to serve notice
on an individual when any record on such individual is made available to any person
under compulsory legal process when such process becomes a matter of public record.
The notice requirement of this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Exemption of Loan Guaranty Service, Veterans Benefits Administration, Systems of
Records. The Department of Veterans Affairs provides limited access to Loan Guaranty
Service, Veterans Benefits Administration, systems of records as indicated:
(1) The following systems of records are exempted pursuant to the provisions of 5 U.S.C.
552a(k)(2) from subsections (c)(3), (d), (e)(1) and (e)(4) (G), (H) and (I) and (f):
(i) Loan Guaranty Fee Personnel and Program Participant Records -- VA (17VA26); and
(ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant Records and
Paraplegic Grant Application Records -- VA (55VA26).
(2) These exemptions apply to the extent that information in these systems is subject to
exemption pursuant to 5 U.S.C. 552a(k)(2).
(3) For the reasons set forth, the systems of records listed under paragraph (c)(1) of this
section are exempted under 5 U.S.C. 552a(k)(2) from the following provisions of 5 U.S.C.
552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of
records available to individuals named in the records at their request. These accountings
must state the date, nature and purpose of each disclosure of the record and the name and
address of the recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such persons are subjects of
that investigation. Since release of such information to subjects of an investigation would
provide the subjects with significant information concerning the nature of the
investigation, it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses and other activities that could impede or compromise
the investigation.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an individual's right to be
notified of the existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; and the agency procedures
relating to access to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following reasons: To notify
an individual at the individual's request of the existence of records in an investigative file
pertaining to such individual or to grant access to an investigative file could interfere with
investigative and enforcement proceedings; constitute an unwarranted invasion of the
personal privacy of others; disclose the identity of confidential sources and reveal
confidential information supplied by these sources and disclose investigative techniques
and procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records
in each system of records. The application of this provision could disclose investigative
techniques and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality.
This would compromise the ability to conduct investigations. Even though the agency has
claimed an exemption from this particular requirement, it still plans to generally identify
the categories of records and the sources for these records in this system. However, for
the reasons stated above, this exemption is still being cited in the event an individual
wanted to know a specific source of information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such
information about an individual that is relevant and necessary to accomplish a purpose of
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
the agency required by statute or Executive order. This system of records is exempt from
the foregoing provision because:
(A) It is not possible to detect relevance or necessity of specific information in the early
stages of an investigation.
(B) Relevance and necessity are questions of judgment and timing. What appears relevant
and necessary when collected may ultimately be determined to be unnecessary. It is only
after the information is evaluated that the relevance and necessity of such information can
be established.
(C) In interviewing persons or obtaining other forms of evidence during an investigation,
information may be supplied to the investigator which relates to matters incidental to the
main purpose of the investigation but which is appropriate in a thorough investigation.
Oftentimes, such information cannot readily be segregated.
(4) The following system of records is exempt pursuant to the provisions of 5 U.S.C.
552a(k)(5) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f): Loan
Guaranty Fee Personnel and Program Participant Records -- VA (17 VA 26).
(5) This exemption applies to the extent that information in this system is subject to
exemption pursuant to 5 U.S.C. 552a(k)(5).
(6) For the reasons set forth, the system of records listed in paragraph (c)(4) of this
section is exempt under 5 U.S.C. 552a(k)(5) from the following provisions of 5 U.S.C.
552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of
records available to individuals named in the records at their request. These accountings
must state the date, nature and purpose of each disclosure of the record and the name and
address of the recipient. The application of this provision would alert subjects of
background suitability investigations to the existence of the investigation and reveal that
such persons are subjects of that investigation. Since release of such information to
subjects of an investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in revealing the identity of a
confidential source.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an individual's right to be
notified of the existence of records pertaining to such individual; requirements for
identifying an individual who requests access to records; and the agency procedures
relating to access to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following reasons: To notify
an individual at the individual's request of the existence of records in an investigative file
pertaining to such an individual or to grant access to an investigative file would disclose
the identity of confidential sources and reveal confidential information supplied by these
sources.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records
in each system of records. The application of this provision could disclose sufficient
information to disclose the identity of a confidential source and cause sources to refrain
from giving such information because of fear of reprisal, or fear of breach of promises of
anonymity and confidentiality. This would compromise the ability to conduct background
suitability investigations.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such
information about an individual that is relevant and necessary to accomplish a purpose of
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
the agency required by statute or Executive order. This system of records is exempt from
the foregoing provision because:
(A) It is not possible to detect relevance and necessity of specific information from a
confidential source in the early stages of an investigation.
(B) Relevance and necessity are questions of judgment and timing. What appears relevant
and necessary when collected may ultimately be determined to be unnecessary. It is only
after the information is evaluated that the relevance and necessity of such information can
be established regarding suitability for VA approval as a fee appraiser or compliance
inspector.
(C) In interviewing persons or obtaining other forms of evidence during an investigation
for suitability for VA approval, information may be supplied to the investigator which
relates to matters incidental to the main purpose of the investigation but which is
appropriate in a thorough investigation. Oftentimes, such information cannot readily be
segregated and disclosure might jeopardize the identity of a confidential source.
(d) Exemption of Police and Security Records. VA provides limited access to one
Security and Law Enforcement System of Records, Police and Security Records -- VA
(103VA07B).
(1) The investigations records and reports contained in this System of Records are
exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy Act of 1974] from Privacy Act
subsections (c)(3) and (c)(4); (d); (e)(1) through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5),
and (e)(8); (f); and (g); in addition, they are exempted [pursuant to 5 U.S.C. 552a(k)(2) of
the Privacy Act of 1974] from Privacy Act subsections (c)(3); (d); (e)(1), (e)(4)(G)
through (e)(4)(I); and (f).
(2) These records contained in the Police and Security Records -- VA (103VA076B) are
exempted for the following reasons:
(i) The application of Privacy Act subsection (c)(3) would alert subjects to the existence
of the investigation and reveal that they are subjects of that investigation. Providing
subjects with information concerning the nature of the investigation could result in
alteration or destruction of evidence which is obtained from third parties, improper
influencing of witnesses, and other activities that could impede or compromise the
investigation.
(ii) The application of Privacy Act subsections (c)(4); (d); (e)(4)(G) and (e)(4)(H); (f);
and (g) could interfere with investigative and enforcement proceedings, threaten the
safety of individuals who have cooperated with authorities, constitute an unwarranted
invasion of personal privacy of others, disclose the identity of confidential sources, reveal
confidential information supplied by these sources, and disclose investigative techniques
and procedures.
(iii) The application of Privacy Act subsection (e)(4)(I) could disclose investigative
techniques and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality.
This could compromise the ability to conduct investigations and to identify, detect and
apprehend violators. Even though the agency has claimed an exemption from this
particular requirement, it still plans to generally identify the categories of records and the
sources of these records in this system. However, for the reason stated in paragraph
(d)(2)(ii) of this section, this exemption is still being cited in the event an individual
wants to know a specific source of information.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(iv) These records contained in the Police and Security Records -- VA (103VA076B) are
exempt from Privacy Act subsection (e)(1) because it is not possible to detect the
relevance or necessity of specific information in the early stages of a criminal or other
investigation. Relevance and necessity are questions of judgment and timing. What
appears relevant and necessary may ultimately be determined to be unnecessary. It is only
after the information is evaluated that the relevance and necessity of such information can
be established. In any investigation, the Office of Security and Law Enforcement may
obtain information concerning violations of laws other than those within the scope of its
jurisdiction. In the interest of effective law enforcement, the Office of Security and Law
Enforcement should retain this information as it may aid in establishing patterns of
criminal activity and provide leads for those law enforcement agencies charged with
enforcing other segments of civil or criminal law.
(v) The application of Privacy Act subsection (e)(2) would impair investigations of illegal
acts, violations of the rules of conduct, merit system and any other misconduct for the
following reasons:
(A) In order to successfully verify a complaint, most information about a complainant or
an individual under investigation must be obtained from third parties such as witnesses
and informers. It is not feasible to rely upon the subject of the investigation as a source
for information regarding his/her activities because of the subject's rights against
self-incrimination and because of the inherent unreliability of the suspect's statements.
Similarly, it is not always feasible to rely upon the complainant as a source of
information regarding his/her involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence of an investigation if
an attempt is made to obtain information from the subject. This would afford the
individual the opportunity to conceal any criminal activities to avoid apprehension.
(vi) The reasons for exempting these records in the Police and Security Records -- VA
(103VA07B) from Privacy Act subsection (e)(3) are as follows:
(A) The disclosure to the subject of the purposes of the investigation would provide the
subject with substantial information relating to the nature of the investigation and could
impede or compromise the investigation.
(B) Informing the complainant or the subject of the information required by this
provision could seriously interfere with undercover activities, jeopardize the identities of
undercover agents and impair their safety, and impair the successful conclusion of the
investigation.
(C) Individuals may be contacted during preliminary information gathering in
investigations before any individual is identified as the subject of an investigation.
Informing the individual of the matters required by this provision would hinder or
adversely affect any present or subsequent investigations.
(vii) Since the Privacy Act defines "maintain" to include the collection of information,
complying with subsection (e)(5) would prevent the collection of any data not shown to
be accurate, relevant, timely, and complete at the moment of its collection. In gathering
information during the course of an investigation, it is not always possible to make this
determination prior to collecting the information. Facts are first gathered and then placed
into a logical order which objectively proves or disproves criminal behavior on the part of
the suspect. Material that may seem unrelated, irrelevant, incomplete, untimely, etc., may
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
take on added meaning as an investigation progresses. The restrictions in this provision
could interfere with the preparation of a complete investigative report.
(viii) The notice requirement of Privacy Act subsection (e)(8) could prematurely reveal
an ongoing criminal investigation to the subject of the investigation.
[48 FR 29847, June 29, 1983; 68 FR 35297, 35298, June 13, 2003]
(5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)
NOTE: Sections 1.575 through 1.584 concern the safeguarding of individual privacy
from the misuse of information from files, records, reports, and other papers and
documents in Department of Veterans Affairs custody. As to the release of information
from Department of Veterans Affairs claimant records see § 1.500 series. As to the
release of information from Department of Veterans Affairs records other than claimant
records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L.
93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that
individuals be granted access to records concerning them which are maintained by
Federal agencies, and for other purposes.
[EFFECTIVE DATE NOTE: 68 FR 35297, 35298, June 13, 2003, added paragraph (d),
effective Aug. 12, 2003.]
§ 1.583 [Reserved]
§ 1.584 [Reserved]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Sections 1.601 to 1.633 removed 70 FR 4768
——————————
INVENTIONS BY EMPLOYEES OF DEPARTMENT OF VETERANS AFFAIRS
§ 1.650 Purpose.
§ 1.651 Definitions.
§ 1.652 Criteria for determining rights to employee inventions.
§ 1.653 Delegation of authority.
§ 1.654 Patenting of Inventions.
§ 1.655 Government license in invention of employee.
§ 1.656 Information to be submitted by inventor.
§ 1.657 Determination of rights.
§ 1.658 Right of appeal.
§ 1.659 Relationship to incentive awards program.
§ 1.660 Expeditious handling.
§ 1.661 Information to be kept confidential.
§ 1.662 Provisions of regulations made a condition of employment.
§ 1.663 Licensing of Government-owned inventions.
§ 1.666 [Reserved]
§ 1.650 Purpose.
The purpose of these regulations is to prescribe the procedure to be followed in
determining and protecting the respective rights of the United States Government and of
Department of Veterans Affairs employees who make inventions.
[21 FR 10377, Dec. 28, 1956; 61 FR 29657, 29658, June 12, 1996]
(38 U.S.C. (501(a).)
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which amended this
section, became effective July 12, 1996.]
§ 1.651 Definitions.
The terms as used in the regulations concerning inventions by employees of the
Department of Veterans Affairs are defined as follows:
(a) The term invention includes any art, machine, manufacture, design, or composition of
matter, or any new and useful improvement thereof, or any variety of plant, which is or
may be patentable under the patent laws of the United States.
(b) The term employee or Government employee means any officer or employee, civilian
or military, of the Department of Veterans Affairs. Part-time, without compensation
(WOC) employees and part-time consultants are included.
(c) The term Secretary of Commerce means the Under Secretary of Commerce for
Technology.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61 FR 29657,
29658, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which revised
paragraphs (b) and (c), became effective July 12, 1996.]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.652 Criteria for determining rights to employee inventions.
(a) The criteria to be applied in determining the respective rights of the Government and
of the employee-inventor in and to any invention subject to these provisions shall be in
accordance with the Uniform Patent Policy regulations found at 37 CFR 501.6 and 501.7.
(b) Ownership in and to inventions arising under Cooperative Research and Development
Agreements (CRADAs) pursuant to 15 USC 3710a shall be governed by the provisions
of the pertinent CRADA, as authorized by the Federal Technology Transfer Act.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61 FR 29657,
29658, June 12, 1996]
(15 U.S.C. 3710a; 37 CFR part 501)
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which revised this
section, became effective July 12, 1996.]
§ 1.653 Delegation of authority.
The General Counsel, Deputy General Counsel or Assistant General Counsel for
Professional Staff Group IV is authorized to act for the Secretary of Veterans Affairs in
matters concerning patents and inventions, unless otherwise required by law. The
determination of rights to an invention as between the Government and the employee
where there is no cooperative research and development agreement shall be made by the
General Counsel, Deputy General Counsel or the Assistant General Counsel for
Professional Staff Group IV, in accordance with 37 CFR part 500.
[54 FR 26027, June 21, 1989; 61 FR 29657, 29658, June 12, 1996; 62 FR 14822, March
28, 1997]
[EFFECTIVE DATE NOTE: 62 FR 14822, March 28, 1997, revised this section,
effective March 28, 1997.]
§ 1.654 Patenting of Inventions.
Any invention owned by the Government under the criteria as set forth in 37 CFR 501.6
should be protected by an application for a domestic patent and other necessary
documents executed by the employee inventor prepared by or through the General
Counsel, Deputy General Counsel or Assistant General Counsel for Professional Staff
Group IV unless some other agency has primary interest or it is decided to dedicate the
invention to the public. Such dedication requires approval of the Secretary of Commerce.
Applications on behalf of the Government for foreign patents may be made if determined
to be in the public interest. The payment of necessary expenses in connection with any
application filed or patent obtained under this section by the Department of Veterans
Affairs is authorized.
[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61 FR 29657,
29658, June 12, 1996; 62 FR 14822, March 28, 1997]
[EFFECTIVE DATE NOTE: 62 FR 14822, March 28, 1997, added "Deputy General
Counsel or Assistant General Counsel for Professional Staff Group IV" following "The
General Counsel" in the first sentence, effective March 28, 1997.]
§ 1.655 Government license in invention of employee.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
If an invention is made by an employee and it is determined that the employee inventor is
entitled to full ownership under 37 CFR 501.6, subject to a nonexclusive, irrevocable,
royalty-free license in the Government with power to grant sublicenses for all
Governmental purposes, it shall be the duty of the employee inventor to notify the Office
of General Counsel of the status of the patent application, including the patent application
number, so that the Department may protect the interests reserved to the Government
under 37 CFR 501.6.
[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61 FR 29657,
29658, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which revised this
section, became effective July 12, 1996.]
§ 1.656 Information to be submitted by inventor.
(a) In the case of an invention or believed invention, the inventor will prepare a statement
for submission to his or her immediate superior. It will be submitted regardless of where
the ownership is believed to exist. The statement will consist of two parts:
(1) One part of the statement will be a disclosure of the invention sufficient to permit the
preparation of a patent applicant. It shall consist of a description, including where
applicable, of the parts or components of the invention as shown on the drawings or
blueprints, accompanied further by a description of the construction and operation of the
invention. Photographs of the invention may be included. The inventor should state
pertinent prior art known to him or her, and set forth in detail as clearly as possible the
respects which his or her invention differs.
(2) The other part of the statement will set forth the circumstances attending the making
of the invention. It will include the full name and address of the inventor; the grade and
title of his or her position; whether full time or part time; his or her duties at the time the
invention was made; the facts pertinent to a determination whether the invention bore a
direct relation to or was made in consequence of such official duties; whether there was,
and if so, the terms of any special agreement or understanding with respect to use or
manufacture of his or her invention; date of the invention; when and where it was
conceived, constructed and tested; whether it was made entirely during working hours;
whether, and to what extent there was a contribution by the Government of any of the
following: Facilities; equipment; materials or supplies; funds; information; time or
services of other Government employees on duty. When the invention is disclosed
through publication, or in consultation with a manufacturer or attorney, simultaneous
notification of the publication shall be given to the Office of General Counsel. A copy of
the article will accompany the notification.
(b) The inventor's immediate superior shall promptly review the statement of the
employee inventor for completeness and accuracy, and shall certify that the employee's
statement of circumstances attending the invention is or is not correct, giving reasons if
pertinent. The file should then be submitted through the facility head (or administration
heads or top staff officials in the case of Central Office employees) to the General
Counsel together with any comments or recommendations.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61 FR 29657,
29658, June 12, 1996]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which revised this
section, became effective July 12, 1996.]
§ 1.657 Determination of rights.
The General Counsel, Deputy General Counsel or Assistant General Counsel for
Professional Staff Group IV will make a determination of rights subject to review where
required by the Secretary of Commerce. The determination will be in accordance with 37
CFR 501.7.
[31 FR 5291, Apr. 2, 1966; redesignated and revised at 61 FR 29657, 29658, June 12,
1996; 62 FR 14822, March 28, 1997]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, redesignated and
revised this section, effective July 12, 1996; 62 FR 14822, March 28, 1997, added
"Deputy General Counsel or Assistant General Counsel for Professional Staff Group IV"
following "The General Counsel," effective March 28, 1997.]
[CROSS REFERENCE: This section was formerly § 1.658.]
§ 1.658 Right of appeal.
In accordance with 37 CFR 501.8, the employee has a right of appeal to the Secretary of
Commerce within 30 days of receipt of the Department's determination of ownership
rights. The decision reached by the Secretary of Commerce will be communicated to the
employee.
[61 FR 29657, 29658, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29658, June 12, 1996, which added this
section, became effective July 12, 1996.]
§ 1.659 Relationship to incentive awards program.
Procedures set out in the regulations concerning inventions by employees of the
Department of Veterans Affairs are not affected by the submission or proposed
submission of an employee suggestion or idea on an item which may be patentable.
Consideration of an item for a determination of ownership rights and also for an incentive
award will proceed simultaneously, usually on separate correspondence. An employee
suggestion or copies and extracts of the file may be forwarded to the General Counsel by
the reviewing or awarding authority, or by the facility head, for an ownership
determination where the employee idea or suggestion involves an invention. The
employee shall be directed to submit a disclosure of invention in accordance with these
regulations if such has not been previously submitted.
[31 FR 5291, Apr. 2, 1966; 61 FR 29657, 29659, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29659, June 12, 1996, which amended this
section, became effective July 12, 1996.]
§ 1.660 Expeditious handling.
No patent may be granted where the invention has been in public use or publicly diclosed
for more than one year before filing of a patent application. Hence, submission involving
inventions should be made as promptly as possible in order to avoid delay which might
jeopardize title to the invention or impair the rights of the inventor or the Government.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[31 FR 5292, Apr. 2, 1966; redesignated and revised at 61 FR 29657, 29659, June 12,
1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29659, June 12, 1996, which redesignated
and revised this section, became effective July 12, 1996.]
[CROSS REFERENCE: This section was formerly § 1.661.]
§ 1.661 Information to be kept confidential.
All information pertaining to inventions and pending patent applications is confidential,
and employees having access to such information are forbidden to disclose or reveal the
same except as required in the performance of their official duties.
[21 FR 10378, Dec. 28, 1956; redesignated at 61 FR 29657, 29659, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29659, June 12, 1996, which redesignated
this section, became effective July 12, 1996.]
[CROSS REFERENCE: This section was formerly § 1.662.]
§ 1.662 Provisions of regulations made a condition of employment.
The provisions of the regulations concerning inventions by employees of the Department
of Veterans Affairs shall be a condition of employment of all employees.
[21 FR 10378, Dec. 28, 1956; redesignated at 61 FR 29657, 29659, June 12, 1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29659, June 12, 1996, which redesignated
this section, became effective July 12, 1996.]
[CROSS REFERENCE: This section was formerly § 1.663.]
§ 1.663 Licensing of Government-owned inventions.
(a) The licensing of Government-owned inventions under VA control and custody will be
conducted pursuant to the regulations on the licensing of Government-owned inventions
contained in 37 CFR part 404, and 15 U.S.C. 3710a, as appropriate.
(b) Any person whose application for a license in an invention under VA control and
custody has been denied; whose license in such an invention has been modified or
terminated, in whole or in part; or who timely filed a written objection in response to a
proposal to grant an exclusive or partially exclusive license in an invention under VA
control or custody, may, if damaged, appeal any decision or determination concerning the
grant, denial, interpretation, modification, or termination of a license to the Secretary of
Veterans Affairs. Such appeal shall be in writing; shall set forth with specificity the basis
of the appeal; and shall be postmarked not later than 60 days after the action being
appealed. Upon request of the appellant, such appeal may be considered by one to three
persons appointed on a case-by-case basis by the Secretary of Veterans Affairs. Such a
request will be granted only if it accompanies the written appeal. Appellant may appear
and be represented by counsel before such a panel, which will sit in Washington, DC. If
the appeal challenges a decision to grant an exclusive or partially exclusive license in an
invention under VA control or custody, the licensee shall be furnished a copy of the
appeal, shall be given the opportunity to respond in writing, may appear and be
represented by counsel at any hearing requested by appellant, and may request a hearing
if appellant has not, under the same terms and conditions, at which the appellant may also
appear and be represented by counsel.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[21 FR 10378, Dec. 28, 1956; redesignated and revised at 61 FR 29657, 29659, June 12,
1996]
[EFFECTIVE DATE NOTE: 61 FR 29657, 29659, June 12, 1996, which redesignated
and revised this section, became effective July 12, 1996.]
[CROSS REFERENCE: This section was formerly § 1.666.]
§ 1.666 [Reserved]
——————————
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ADMINISTRATIVE CONTROL OF FUNDS
§ 1.670 Purpose.
§ 1.671 Definitions.
§ 1.672 Responsibilities.
§ 1.673 Responsibility for violations of the administrative subdivision of funds.
§ 1.670 Purpose.
The following regulations establish a system of administrative controls for all
appropriations and funds available to the Department of Veterans Affairs to accomplish
the following purposes:
(a) Establish an administrative subdivision of controls to restrict obligations and
expenditures against each appropriation or fund to the amount of the apportionment or
the reapportionment; and
(b) Fix responsibility for the control of appropriations or funds to high level officials who
bear the responsibility for apportionment or reapportionment control.
Sections 1.670 to 1.673 issued at 48 FR 30622, July 5, 1983.
(31 U.S.C. 1514)
§ 1.671 Definitions.
For the purpose of §§ 1.670 through 1.673, the following definitions apply:
(a) Administrative subdivision of funds. An administrative subdivision of funds is any
administrative subdivision of an appropriation or fund which makes funds available in a
specified amount for the purpose of controlling apportionments or reapportionments.
(b) Allotment. An allotment is an authorization by the Director, Office of Budget and
Finance, to department and staff office heads (allottees) to incur obligations within
specified amounts, during a specified period, pursuant to an Office of Management and
Budget apportionment or reapportionment action. The creation of an obligation in excess
of an allotment is a violation of the administrative subdivision of funds.
(c) Allowance. An allowance is a subdivision below the allotment level, and is a
guideline which may be issued by department or staff office heads (allottees) to facility
directors and other officials, showing the expenditure pattern or operating budget they
will be expected to follow in light of the program activities contemplated by the overall
VA budget or plan of expenditure. The creation of an obligation in excess of an
allowance is not a violation of the administrative subdivision of funds.
Sections 1.670 to 1.673 issued at 48 FR 30622, July 5, 1983.
(31 U.S.C. 1514)
§ 1.672 Responsibilities.
(a) The issuance of an allotment to the administration and staff office heads (allottees) is
required and is the responsibility of the Director, Office of Budget and Finance. The sum
of such allotments shall not be in excess of the amount indicated in the apportionment or
reapportionment document.
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(b) The issuance of an allowance is discretionary with department or staff office heads
(allottees), as an allowance is merely a management device which allottees may utilize in
carrying out their responsibilities. Allottees are responsible for keeping obligations within
the amounts of their allotments, whether allowances are issued or not.
(c) The Director, Office of Budget and Finance, is responsible for requesting
apportionments and reapportionments from the Office of Management and Budget.
Administration and staff heads shall promptly request that an appropriation or fund be
reapportioned if feasible whenever it appears that obligations may exceed the level of the
apportionment.
Sections 1.670 to 1.673 issued at 48 FR 30622, July 5, 1983.
(31 U.S.C. 1514)
§ 1.673 Responsibility for violations of the administrative subdivision of funds.
(a) In the event an allotment or an apportionment is exceeded except in the circumstances
described in paragraph (b) of this section, the following factors will be considered in
determining which official, or officials, are responsible for the violation.
(1) Knowledge of circumstances which could lead to an allotment or apportionment being
exceeded;
(2) Whether the official had received explicit instructions to continue or cease incurring
obligations;
(3) Whether any action was taken in contravention of or with disregard for, instructions
to monitor obligations incurred;
(4) Whether the official had the authority to curtail obligations by directing a change in
the manner of operations of the department or staff office; or
(5) Any other facts which tend to fix the responsibility for the obligations which resulted
in the allotment or apportionment being exceeded.
(b) In the event that the sum of the allotments made in a particular fiscal year exceeds the
amount apportioned by the Office of Management and Budget, and the apportionment is
subsequently exceeded because of this action, the official who made the excess
allotments will be the official responsible for the violation.
Sections 1.670 to 1.673 issued at 48 FR 30622, July 5, 1983.
(31 U.S.C. 1514)
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USE OF OFFICIAL MAIL IN THE LOCATION AND RECOVERY OF MISSING
CHILDREN
§ 1.700 Purpose.
§ 1.701 Contact person for missing children official mail program.
§ 1.702 Policy.
§ 1.703 Percentage estimates.
§ 1.704 [Reserved]
§ 1.705 Restrictions on use of missing children information.
§ 1.700 Purpose.
Sections 1.700 through 1.705 of this title provide a Missing Children Official Mail
Program in the Department of Veterans Affairs.
[52 FR 10889, Apr. 6, 1987; 60 FR 48387, Sept. 19, 1995]
(39 U.S.C. 3220(a)(2), 5 U.S.C. 301.)
[EFFECTIVE DATE NOTE: 60 FR 48387, Sept. 19, 1995, which revised this section,
became effective Sept. 19, 1995.]
§ 1.701 Contact person for missing children official mail program.
The Department of Veterans Affairs contact person for the Missing Children Official
Mail Program is: Mrs. Roslynd R. Stewart, Information Management Service (045A4),
Office of Policy and Program Assistance, Office of Information Resources Management,
Office of Management, Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420-0001. Telephone: (202) 565-8949.
[52 FR 10889, Apr. 6, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 60 FR 48387,
48388, Sept. 19, 1995]
(39 U.S.C. 3220(a)(2), 5 U.S.C. 301.)
§ 1.702 Policy.
(a) The Department of Veterans Affairs will supplement and expand the national effort to
assist in the location and recovery of missing children by maximizing the economical use
of missing children information in domestic official mail and publications directed to
members of the public and Department of Veterans Affairs employees.
(b) The Department of Veterans Affairs will insert pictures and biographical information
related to missing children in a variety of official mail originating at the Department of
Veterans Affairs automation centers. In addition, pictures and biographical information
are printed in self-mailers and other Department of Veterans Affairs publications
(newsletters, bulletins, etc.).
(c) The National Center for Missing and Exploited Children (National Center) is the sole
source from which the Department of Veterans Affairs will acquire the camera-ready and
other photographic and biographical materials to be disseminated for use by Department
of Veterans Affairs organizational units. The information is ordered and disseminated by
the Information Management Service.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(d) The Department of Veterans Affairs will remove all printed inserts and other
materials from circulation or other use within a three-month period from the date the
National Center notifies the Department of Veterans Affairs that a child whose picture
and biographical information have been made available to the Department of Veterans
Affairs has been recovered or that permission of the parent(s) or guardian to use the
child's photograph and biographical information has been withdrawn. The National
Center is responsible for immediately notifying the Department of Veterans Affairs
contact person, in writing, of the need to withdraw from circulation official mail and
other materials related to a particular child. Photographs which were reasonably current
as of the time of the child's disappearence shall be the only acceptable form of visual
medium or pictorial likeness used in official mail.
(e) The Department of Veterans Affairs will give priority to official mail that is addressed
to:
(1) Members of the public that will be received in the United States, its territories and
possessions; and
(2) Inter- and intra-agency publications and other media that will also be widely
disseminated to Department of Veterans Affairs employees.
(f) The Department of Veterans Affairs will avoid repetitive mailings of material to the
same individuals.
(g) All Department of Veterans Affairs employee suggestions and/or recommendations
for additional cost-effective opportunities to use photographs and biographical data on
missing children will be provided to the Department of Veterans Affairs contact person.
(h) These shall be the sole regulations for the Department of Veterans Affairs and its
component organizational units.
[52 FR 10889, Apr. 6, 1987; 60 FR 48387, 48388, Sept. 19, 1995]
(39 U.S.C. 3220(a)(2), 5 U.S.C. 301.)
§ 1.703 Percentage estimates.
It is the Department of Veterans Affairs objective that 20 percent of its first class official
mail addressed to the public contain missing children photographs and information.
[52 FR 10889, Apr. 6, 1987; 60 FR 48387, 48388, Sept. 19, 1995]
(39 U.S.C. 3220(a)(2), 5 U.S.C. 301.)
§ 1.704 [Reserved]
§ 1.705 Restrictions on use of missing children information.
Missing children pictures and biographical data shall not be:
(a) Printed on official envelopes and other materials ordered and stocked in quantities
that represent more than a 90-day supply.
(b) Printed on blank pages or covers of publications that may be included in the
Superintendent of Documents Sales Program or be distributed to depository libraries.
(c) Inserted in any envelope or publication the contents of which may be construed to be
inappropriate for association with the missing children program.
(d) Inserted in any envelope where the insertion would increase the postage cost for the
item being mailed.
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(e) Placed on letter-size envelopes on the official indicia, the area designated for optical
character readers (OCRs), bar code read area, and return address area in accordance with
the Office of Juvenile Justice and Delinquency Prevention guidelines and U.S. Postal
Service standards.
[52 FR 10889, Apr. 6, 1987; 60 FR 48387, 48388, Sept. 19, 1995]
(39 U.S.C. 3220(a)(2), 5 U.S.C. 301.)
——————————
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HOMELESS CLAIMANTS
§ 1.710 Homeless claimants: Delivery of benefit payments and correspondence.
§ 1.710 Homeless claimants: Delivery of benefit payments and correspondence.
(a) All correspondence and all checks for benefits payable to claimants under laws
administered by the Department of Veterans Affairs shall be directed to the address
specified by the claimant. The Department of Veterans Affairs will honor for this purpose
any address of the claimant in care of another person or organization or in care of general
delivery at a United States post office. In no event will a claim or payment of benefits be
denied because the claimant provides no mailing address.
(Authority: 38 U.S.C. 5103; 5120)
(b) To ensure prompt delivery of benefit payments and correspondence, claimants who
seek personal assistance from Veterans Benefits Counselors when filing their claims shall
be counseled as to the importance of providing his or her current mailing address and, if
no address is provided, the procedures for delivery described in paragraph (d) of this
section.
(Authority: 38 U.S.C. 5103; 5120)
(c) The Department of Veterans Affairs shall prepare and distribute to organizations
specially serving the needs of veterans and the homeless, including but not limited to
shelters, kitchens and private outreach facilities, information encouraging such
organizations to counsel individuals on the importance of providing mailing addresses to
the Department of Veterans Affairs and advising them of this regulation.
(Authority: 38 U.S.C. 5103; 5120)
(d) If a claimant fails or refuses to provide a current mailing address to the Department of
Veterans Affairs, all correspondence and any checks for benefits to which the claimant is
entitled will be delivered to the Agent Cashier of the regional office which adjudicated or
is adjudicating the claim in the case of compensation, pension or survivors' benefits, to
the Agent Cashier of the Department of Veterans Affairs facility closest to the
educational institution or training establishment attended by a claimant in the case of
education benefits, or to the Agent Cashier of any other Department of Veterans Affairs
facility deemed by the Agency to be appropriate under the circumstances of the particular
case. The claimant, within 30 days after issuance, may obtain delivery of any check or
correspondence held by an Agent Cashier upon presentation of proper identification.
Checks unclaimed after 30 days will be returned to the Department of the Treasury and
the correspondence to the regional office or facility of jurisdiction. Thereafter, the
claimant must request the reissuance of any such check or item of correspondence by
written notice to the Department of Veterans Affairs.
[53 FR 22654, June 17, 1988]
(38 U.S.C. 5103; 5120)
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APPEALS FROM DECISIONS OF CONTRACTING OFFICERS UNDER THE
CONTRACT DISPUTES ACT OF 1978
§ 1.780 Board of Contract Appeals -- jurisdiction.
§ 1.781 Organization and address of the Board.
§ 1.782 Policy and procedure.
§ 1.783 Rules of the Board.
§ 1.780 Board of Contract Appeals -- jurisdiction.
The Department of Veterans Affairs Board of Contract Appeals (referred to in §§ 1.780
through 1.783 as the Board) shall consider and determine appeals from decisions of
contracting officers pursuant to the Contract Disputes Act of 1978 (41 U.S.C. 601-613)
relating to contracts made by (a) the Department of Veterans Affairs or (b) any other
executive agency when such agency or the Administrator for Federal Procurement Policy
has designated the Board to decide the appeal.
[47 FR 12340, Mar. 23, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
Sections 1.780 through 1.783 issued under 41 U.S.C. 601-613, 38 U.S.C. 501.
§ 1.781 Organization and address of the Board.
(a) The Board consists of a Chair, Vice Chair, and other members, all of whom are
attorneys at law duly licensed by any State, commonwealth, territory, or the District of
Columbia. In general, the appeals are assigned to a panel of at least 3 members who
decide the case by a majority vote. Board Members are designated Administrative
Judges.
(b) The Board's mailing address is 810 Vermont Avenue, NW., Washington, DC 20420.
Sections 1.780 through 1.783 appear at 47 FR 12340, Mar. 23, 1982.
Sections 1.780 through 1.783 issued under 41 U.S.C. 601-613, 38 U.S.C. 501.
§ 1.782 Policy and procedure.
(a) Rules of procedure. Appeals to the Board are processed in accordance with Rules of
Procedure adopted by the Board in compliance with the guidelines issued by the Office of
Federal Procurement Policy under the provisions of the Contract Disputes Act of 1978
(41 U.S.C. 601, 607(h)). There is no further administrative appeal within the Department
of Veterans Affairs from final decisions rendered by the Board.
(b) Application and interpretation of rules. It is impracticable to articulate a rule to fit
every possible circumstance which may be encountered. The rules, therefore, are applied
and interpreted to provide, to the fullest extent practicable, informal expeditious, and
inexpensive resolution of disputes. For that purpose, the Board is authorized to require
contracting officers and other Department of Veterans Affairs officials to furnish the
Board with such information, technical data, and other assistance as the Board may
require in the performance of its duties.
Sections 1.780 through 1.783 appear at 47 FR 12340, Mar. 23, 1982.
Sections 1.780 through 1.783 issued under 41 U.S.C. 601-613, 38 U.S.C. 501.
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§ 1.783 Rules of the Board.
(a) Rule 1; appeals from final decisions and requests for final decisions -- (1) Notice of
appeal. Notice of an appeal shall be in writing and mailed to or otherwise furnished the
Board within 90 days from the date of receipt of a contracting officer's final decision. A
copy thereof shall be furnished the contracting officer from whose decision the appeal is
taken.
(2) Failure to issue a final decision. (i) Where the contractor has submitted a claim of $
50,000 or less to the contracting officer and, in writing, has requested a decision within
60 days from receipt of the request, and the contracting officer has not done so, the
contractor may file a notice of appeal as provided in paragraph (a)(1) of this section,
citing the failure of the contracting officer to issue a decision.
(ii) Where the contractor has submitted a properly certified claim in excess of $ 50,000 to
the contracting officer, or pursuant to the Disputes Clause, has requested a decision by
the contracting officer which presently involves no monetary amount, and the contracting
officer has failed to issue a decision within a reasonable time, taking into account such
factors as the size and complexity of the claim, the contractor may file a notice of appeal
as provided in paragraph (a)(1) of this section, citing the failure of the contracting officer
to issue a decision.
(3) Stay of proceedings. Upon the docketing of an appeal filed pursuant to the provisions
of paragraph (a)(2) of this section, the Board may, at its option, stay further proceedings
pending issuance of a final decision by the contracting officer within such period of time
as determined by the Board.
(4) Request for final decision. In lieu of filing a notice of appeal under paragraph(a)(2) of
this section, the contractor, in the event of undue delay or refusal on the part of the
contracting officer, may request that the Board direct the contracting officer to issue a
decision in a specified period of time, as determined by the Board.
(b) Rule 2; notice of appeal, contents of. A notice of appeal should indicate that an appeal
is being taken and should identify the contract by number, the department, agency, or
bureau involved in the dispute, the decision from which the appeal is taken, and the
amount in dispute, if known. The notice of appeal should be signed by the appellant (the
contractor taking the appeal) or by the appellant's duly authorized representative or
attorney. The complaint referred to in paragraph (f) of this section (Rule 6) may be filed
with the notice of appeal, or the appellant may designate the notice of appeal as a
complaint, if it otherwise fulfills the requirements of a complaint.
(c) Rule 3; docketing of appeals. When a notice of apppeal in any form has been received
by the Board, it shall be docketed promptly. Notice in writing shall be given to the
appellant with a copy of §§ 1.780 through 1.783 and to the contracting officer.
(d) Rule 4; preparation, content, organization, forwarding, and status of appeal file -- (1)
Duties of contracting officer. Within 30 days of receipt of notice that an appeal has been
filed, the contracting officer shall assemble and transmit to the Board through the Office
of General Counsel an appeal file consisting of all documents pertinent to the appeal,
including:
(i) The decision from which the appeal is taken;
(ii) The contract, including specifications and pertinent amendements, plans, and
drawings;
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(iii) All correspondence between the parties relevant to the appeal, including the letter or
letters of claim in response to which the decision was issued;
(iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or
statements of any witnesses on the matter in dispute made prior to the filing of the notice
of appeal with the Board; and
(v) Any additional information considered relevant to the appeal.
Within the same time above specified, the Office of General Counsel shall furnish the
appellant a copy of each document transmitted to the Board, except those in paragraph
(d)(1)(ii) of this section. As to the latter, a list furnished appellant indicating specific
contractual documents transmitted will suffice.
(2) Duties of the appellant. Within 30 days after receipt of a copy of the appeal file
assembled by the contracting officer, the appellant shall transmit to the Board any
documents not contained therein which are considered to be relevant to the appeal, and
shall furnish two copies of such documents to the government trial attorney.
(3) Organization of appeal file. Documents in the appeal file may be originals or legible
facsimiles or authenticated copies, and shall be arranged in chronological order where
practicable, numbered sequentially, tabbed, and indexed to identify the contents of the
file.
(4) Lengthy documents. Upon request by either party the Board may waive the
requirement to furnish to the other party copies of bulky, lengthy, or out-of-size
documents in the appeal file when it would be burdensome to do so. At the time a party
files with the Board a document as to which such a waiver has been granted the party
shall notify the other party that the document or a copy thereof is available for inspection
at the office of the Board or of the party filing same.
(5) Status of documents in appeal file. Documents contained in the appeal file are
considered, without further action by the parties, as part of the record upon which the
Board will render its decision. However, a party may object, for reasons stated, to
consideration of a particular document or documents reasonably in advance of hearing or,
if there is no hearing, of settling the record. If such objection is made the Board shall
remove the document or documents from the appeal file and permit the party offering the
document to move its admission as evidence in accordance with paragraphs (m) and (t) of
this section (Rules 13 and 20).
(6) Dispensing with appeal file requirements. Notwithstanding the provisions of
paragraph (d)(1) through (5) of this section, the filing of the documents in paragraph
(d)(1) and (2) of this section may be dispensed with by the Board either upon request of
the appellant in the notice of appeal or thereafter upon stipulation of the parties.
(e) Rule 5; dismissal for lack of jurisdiction. Any motion addressed to the jurisdiction of
the Board shall be promptly filed. Hearing on the motion shall be afforded on application
of either party. However, the Board may defer its decision on the motion pending hearing
on both the merits and the motion. The Board shall have the right at any time and on its
own initiative to raise the issue of its jurisdiction to proceed with a particular case, and
shall do so by an appropriate order, affording the parties an opportunity to be heard
thereon.
(f) Rule 6; pleadings and motions -- (1) Appellant. Within 30 days after receipt of notice
of docketing of the appeal, the appellant shall file with the Board an original and two
copies of a complaint setting forth simple, concise, and direct statements of each of its
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claims. Appellant shall also set forth the basis, with appropriate reference to contract
provisions, of each claim and the dollar amount claimed, to the extent known. This
pleading shall fulfill the generally recognized requirements of a complaint, although no
particular form is required. Upon receipt of the complaint, the Board shall serve a copy of
it upon the Government. Should the complaint not be received within 30 days, appellant's
claim and appeal may, if in the opinion of the Board the issues before the Board are
sufficiently defined, be deemed to set forth its complaint and the Government shall be so
notified.
(2) Government. Within 30 days from receipt of the complaint, or the aforesaid notice
from the Board, the Government shall prepare and file with the Board an original and two
copies of an answer thereto. The answer shall set forth simple, concise, and direct
statements of the Government's defenses to each claim asserted by appellant, including
any affirmative defenses available. Upon receipt of the answer, the Board shall serve a
copy upon appellant. Should the answer not be received within 30 days, the Board may,
in its discretion, enter a general denial on behalf of the Government, and the appellant
shall be so notified.
(3) Motions. The Board may entertain and rule upon appropriate motions.
(g) Rule 7; amendments of pleadings or record -- (1) More definite statement and reply.
The Board, upon its own initiative or upon application by a party, may order a party to
make a more definite statement of the complaint or answer, or to reply to an answer.
(2) Amendments. The Board may, in its discretion, and within the proper scope of the
appeal, permit either party to amend its pleadings upon conditions fair to both parties.
When issues within the proper scope of the appeal, but not raised by the pleadings, are
tried by express or implied consent of the parties, or by permission of the Board, they
shall be treated in all respects as if they had been raised therein. In such instances,
motions to amend the pleadings to conform to the proof may be entered, but are not
required. If evidence is objected to at a hearing on the ground that it is not within the
issues raised by the pleadings, it may be admitted within the proper scope of the appeal,
provided, however, that the objecting party may be granted a continuance if necessary to
enable that party to meet such evidence.
(h) Rule 8; hearing election. After filing of the Government's answer or notice from the
Board that it has entered a general denial on behalf of the Government, each party shall
advise whether it elects a hearing, as prescribed in paragraphs (q) through (y) of this
section (Rules 17 through 25), or whether it elects to submit its case on the record
without a hearing, as prescribed in paragraph (k) of this section (Rule 11).
(i) Rule 9; prehearing briefs. Based on an examination of the pleadings, and its
determination of whether the arguments and authorities addressed to the issues are
adequately set forth therein, the Board may, in its discretion, require the parties to submit
prehearing briefs in any case in which a hearing has been elected pursuant to paragraph
(h) of this section (Rule 8). If the Board does not require prehearing briefs, either party
may, upon appropriate and sufficient notice to the other party, furnish a prehearing brief
to the Board. In any case where a prehearing brief is submitted, it shall be filed with the
Board at least 15 days prior to the date set for hearing, and a copy simultaneously
furnished to the other party.
(j) Rule 10; prehearing or presubmission conference. (1) Whether the case is to be
submitted pursuant to paragraph (k) of this section (Rule 11), or heard pursuant to
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paragraphs (q) through (y) of this section (Rules 17 through 25), the Board may, upon its
own initiative, or upon the application of either party, arrange a telephone conference or
require the parties to appear before an Administrative Judge or examiner of the Board for
a conference to consider:
(i) Simplification, clarification, or severence of the issues;
(ii) The possibility of obtaining stipulations, admissions, agreements, and rulings on
admissibility of documents, understandings on matters already of record, or similar
agreements that will avoid unnecessary proof;
(iii) Agreements and rulings to facilitate discovery;
(iv) Limitation of the number of expert witnesses, or avoidance of similar cumulative
evidence;
(v) The possibility of agreement disposing of any or all of the issues in dispute; and
(vi) Such other matters as may aid in the disposition of the appeal.
(2) The Administrative Judge or examiner of the Board shall make such rulings and
orders as may be appropriate to achieve settlement by agreement of the parties or to aid in
the disposition of the appeal. The results of pretrial conferences, including any rulings
and orders, shall be reduced to writing by the Administrative Judge or examiner and this
writing shall thereafter constitute a part of the record.
(k) Rule 11; submission without a hearing. Either party may elect to waive a hearing and
submit its case upon the record as settled pursuant to paragraph (m) of this section (Rule
13). Submission of a case without hearing does not relieve the parties from the necessity
of proving the facts supporting their allegations or defenses. In accordance with
paragraph (m) of this section (Rule 13), affidavits, depositions, admissions, answers to
interrogatories, and stipulations may be employed to supplement other documentary
evidence in the record. The Board may permit such submissions to be supplemented by
oral argument (transcribed, if requested), and by briefs filed in accordance with paragraph
(w) of this section (Rule 23).
(l) Rule 12; optional small claims (expedited) and accelerated procedures. These
procedures are available solely at the election of the appellant.
(1) 12.1 Elections to utilize small claims (expedited) and accelerated procedures. (i) In
appeals where the amount in dispute is $ 50,000 or less, the appellant may elect to have
the appeal processed under a small claims (expedited) procedure requiring decision of the
appeal, whenever possible, within 120 days after the Board receives written notice of the
appellant's election. The details of this procedure appear in paragraph (1)(2) of this
section (rule 12). An appellant may elect the accelerated procedure set forth in paragraph
(l)(3) of this section (Rule 12) in any appeal eligible for small claims (expedited)
procedure.
(ii) In appeals where the amount in dispute is $ 100,000 or less, the appellant may elect to
have the appeal processed under an accelerated procedure requiring decision of the
appeal, whenever possible, within 180 days after the Board receives written notice of the
appellant's election. The details of this procedure appear in paragraph (l)(3) of this
section (Rule 12).
(iii) The appellant's election of either the small claims (expedited) procedure or the
accelerated procedure may be made by written notice within 60 days after receipt of
notice of docketing the appeal unless such period is extended by the Board for good
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cause. The election may not be withdrawn except with permission of the Board and for
good cause.
(iv) In deciding whether the small claims (expedited) procedure or the accelerated
procedure is applicable to a given appeal, the Board shall determine the amount in
dispute.
(2) 12.2 The small claims (expedited) procedure. (i) In cases proceeding under the small
claims (expedited) procedure, the following time periods shall apply:
(A) Within 10 days from the Government's first receipt from either the appellant or the
Board of a copy of the appellant's notice of election of the small claims (expedited)
procedure, the Government shall send the Board a copy of the contract, the contracting
officer's final decision, and the appellant's claim letter or letters, if any; remaining
documents required under paragraph (d) of this section (Rule 4) shall be submitted in
accordance with times specified in that rule unless the Board otherwise directs;
(B) Within 15 days after the Board has acknowledged receipt of appellant's notice of
election, the assigned Administrative Judge shall take the following actions, if feasible, in
an informal meeting or a telephone conference with both parties: (1) Identify and
simplify the issues; (2) establish a simplified procedure appropriate to the particular
appeal involved; (3) determine whether either party wants a hearing and, if so, fix a time
and place therefor; (4) require the Government to furnish all the additional documents
relevant to the appeal; and (5) establish an expedited schedule for resolution of the
appeal.
(ii) Pleadings, discovery, and other prehearing activity will be allowed only as consistent
with the requirement to conduct the hearing on the date scheduled or, if no hearing is
scheduled, to close the record on a date that will allow decisions within the 120-day limit.
The Board, in its discretion, may impose shortened time periods for any actions
prescribed or allowed under this section 1.783, as necessary to enable the Board to decide
the appeal within the 120-day limit, allowing whatever time, up to 30 days, that the Board
considers necessary for the preparation of the decision after closing the record and the
filing of briefs, if any.
(iii) Written decisions by the Board in cases processed under the small claims (expedited)
procedure will be brief and contain only summary findings of fact and conclusions.
Decisions will be rendered for the Board by a single Administrative Judge. If there has
been a hearing, the Administrative Judge presiding at the hearing may, in the judge's
discretion, at the conclusion of the hearing and after entertaining such oral arguments as
deemed appropriate, render on the record oral summary findings of fact, conclusions, and
a decision of the appeal. Whenever such an oral decision is rendered, the Board will
subsequently furnish the parties a typed copy of such oral decision for record and
payment purposes and to establish the starting date for the period for filing a motion for
reconsideration under paragraph (cc) of this section (Rule 29).
(iv) Decisions under this procedure shall have no value as precedent and, in the absence
of fraud, shall be final and conclusive and may not be appealed or set aside.
(3) 12.3 The accelerated procedure. (i) In cases proceeding under the accelerated
procedure, the parties are encouraged, to the extent possible consistent with adequate
presentation of their factual and legal positions, to waive pleadings, discovery, and briefs.
Pleadings, discovery, and other prehearing activity will be allowed only as consistent
with the requirement to conduct the hearing on the date scheduled or, if no hearing is
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scheduled, to close the record on a date that will allow decision within the 180-day limit.
The Board, in its discretion, may shorten time periods prescribed or allowed under this §
1.783, as necessary to enable the Board to decide the appeal within 180 days after the
Board has received the appellant's notice of election of the accelerated procedure, and
may reserve 30 days for preparation of the decision.
(ii) Written decisions by the Board in cases processed under the accelerated procedure
will normally be brief and contain only summary findings of fact and conclusions.
Decisions will be rendered for the Board by a single Administrative Judge with the
concurrence of the Chair, Vice Chair, or other designated Administrative Judge, or by a
majority among these two and an additional designated member in case of disagreement.
Alternatively, in cases where the amount in dispute is $ 10,000 or less as to which the
accelerated procedure has been elected and in which there has been a hearing, the single
Administrative Judge presiding at the hearing may, with the concurrence of both parties,
at the conclusion of the hearing and after entertaining such oral arguments as deemed
appropriate, render on the record oral summary findings of fact, conclusions, and a
decision of the appeal. Whenever such an oral decision is rendered, the Board will
subsequently furnish the parties a typed copy of such oral decision for record and
payment purposes, and to establish the starting date for the period for filing a motion for
reconsideration under paragraph (cc) of this section (Rule 29).
(4) 12.4 Motions for reconsideration in cases under paragraph (l) of this section (Rule 12).
Motions for reconsideration of cases decided under either the small claims (expedited)
procedure or the accelerated need not be decided within the original 120-day or 180-day
limits, but all such motions shall be processed and decided rapidly so as to fulfill the
intent of paragraph (l) of this section (Rule 12).
(m) Rule 13; settling the record. (1) The record upon which the Board's decision will be
rendered consists of the documents furnished under paragraphs (d) and (l) of this section
(Rules 4 and 12), to the extent admitted in evidence, and the following items, if any:
pleadings prehearing conference memoranda or orders, prehearing briefs, depositions or
interrogatories received in evidence, admissions, stipulations, transcripts of conferences
and hearings, hearing exhibits, posthearing briefs, and documents which the Board has
specifically designated be made a part of the record. The record will, at all reasonable
times, be available for inspection by the parties at the office of the Board.
(2) Except as the Board may otherwise order in its discretion, no evidence shall be
received after completion of an oral hearing or, in cases submitted on the record, after
notification by the Board that the case is ready for decision.
(3) The weight to be attached to any evidence of record will rest within the sound
discretion of the Board. The Board may in any case require either party, with appropriate
notice to the other party, to submit additional evidence on any matter relevant to the
appeal.
(n) Rule 14; discovery -- depositions -- (1) General policy and protective orders. The
parties are encouraged to engage in voluntary discovery procedures. In connection with
any deposition or other discovery procedure, the Board may make any order required to
protect a party or person from annoyance, embarrassment, or undue burden or expense.
Such orders may include limitations on the scope, method, time and place for discovery,
and provision for protecting the secrecy of confidential information or documents.
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(2) When depositions permitted. After an appeal has been docketed and complaint filed,
the parties may agree to, or the Board may order, upon application of either party, the
taking of testimony of any person by deposition upon oral examination or written
interrogatories before any officer authorized to administer oaths at the place of
examination, for use as evidence or for purpose of discovery. The application for order
shall specify whether the purpose of the deposition is discovery or for use as evidence.
(3) Orders on depositions. The time, place, and manner of taking depositions shall be as
agreed upon by the parties or, failing such agreement, governed by order of the Board.
(4) Use as evidence. No testimony taken by deposition shall be considered as part of the
evidence in the hearing of an appeal until such testimony is offered and received in
evidence at such hearing. It will not ordinarily be received in evidence if the deponent is
present and can testify at the hearing. In such instances, however, the deposition may be
used to contradict or impeach the testimony of the deponent given at the hearing. In cases
submitted on the record, the Board may, in its discretion, receive depositions to
supplement the record.
(5) Expenses. Each party shall bear its own expenses associated with the taking of any
deposition.
(6) Subpoenas. Where appropriate, a party may request the issuance of a subpoena under
the provisions of paragraph (u) of this section (Rule 21).
(o) Rule 15; interrogatories to parties, admissions of fact, and production and inspection
of documents. After an appeal has been docketed and complaint filed with the Board, a
party may serve on the other party: (1) Written interrogatories to be answered separately
in writing, signed under oath and answered or objected to within 30 days after service; (2)
a request for the admission of specified facts and/or the authenticity of any documents, to
be answered or objected to within 30 days after service, the factual statements and the
authenticity of the documents to be deemed admitted upon failure of a party to respond to
the request; and (3) a request for the production, inspection, and copying of any
documents or objects, not privileged, which reasonably may lead to the discovery of
admissible evidence, to be answered or objected to within 30 days after service. Any
discovery engaged in under this rule shall be subject to the provisions of paragraph (n)(1)
of this section (Rule 14(A)) with respect to general policy and protective orders, and
paragraph (ii) of this section (Rule 35) with respect to sanctions.
(p) Rule 16; service of papers other than subpoenas. Papers shall be served personally or
by mail, addressed to the party upon whom service is to be made. Copies of complaints,
answers, replies, and briefs shall be filed directly with the Board for service. The party
filing any other paper with the Board shall send a copy thereof to the opposing party,
noting on the paper filed with the Board that a copy has been so furnished. Subpoenas
shall be served as provided in paragraph (u) of this section (Rule 21).
(q) Rule 17; hearings, where and when held. Hearings will be held at such places
determined by the Board to best serve the interests of the parties and the Board. Hearings
will be scheduled at the discretion of the Board with due consideration to the regular
order of appeals, requirements of paragraph (l) of this section (Rule 12), and other
pertinent factors. On request or motion by either party and for good cause, the Board may,
in its discretion, adjust the date of a hearing.
(r) Rule 18; notice of hearings. The parties shall be given at least 15 days notice of the
time and place set for hearings. In scheduling hearings, the Board will consider the
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desires of the parties and the requirement for just and inexpensive determination of
appeals without unnecessary delay. Notices of hearing shall be promptly acknowledged
by the parties.
(s) Rule 19; unexcused absence of a party. The unexcused absence of a party at the time
and place set for hearing will not be occasion for delay. In the event of such absence, the
hearing will proceed and the case will be regarded as submitted by the absent party as
provided in paragraph (k) of this section (Rule 11).
(t) Rule 20; hearings, nature of and examination of witnesses -- (1) Nature of hearings.
Hearings shall be as informal as may be reasonable and appropriate under the
circumstances. Appellant and respondent may offer such relevant evidence as they deem
appropriate and as would be admissible under the Federal Rules of Evidence, subject,
however, to the sound discretion of the presiding Administrative Judge or examiner in
supervising the extent and manner of presentation of such evidence. In general,
admissibility will depend on relevancy and materiality. Evidence which may not be
admissible under the Federal Rules of Evidence may be admitted in the discretion of the
presiding Administrative Judge or examiner. The weight to be attached to evidence
presented in any particular form will be within the discretion of the Board. Stipulations of
fact agreed upon by the parties may be regarded and used as evidence at the hearing. The
parties may stipulate the testimony that would be given by a witness if the witness were
present. The Board may in any case require evidence in addition to that offered by the
parties.
(2) Examination of witnesses. Witnesses before the Board will be examined orally under
oath or affirmation, unless the presiding Administrative Judge or examiner shall
otherwise order. If the testimony of a witness is not given under oath, the Board may
advise the witness that his or her statements may be subject to the provisions of 18 U.S.C.
287 and 1001, and any other provision of law imposing penalties for knowingly making
false representations in connection with claims against the United States or in any matter
within the jurisdiction of any department or agency thereof.
(u) Rule 21; subpoenas -- (1) General. Upon written request of either party filed with the
Board, or on the Board's own initiative, the Administrative Judge to whom a case is
assigned or who is otherwise designated by the Chair may issue a subpoena requiring:
(i) Testimony at a deposition -- the deposing of a witness in the city or county where the
witness resides or is employed or transacts business in person, or at another location
convenient for the witness that is specifically determined by the Board;
(ii) Testimony at a hearing -- the attendance of a witness for the purpose of taking
testimony at a hearing; and
(iii) Production of books and papers -- in addition to paragraph (u)(1)(i) or (ii) of this
section, the production by the witness at the deposition or hearing of books and papers
designated in the subpoena.
(2) Voluntary cooperation. Each party is expected (i) to cooperate and make available
witnesses and evidence under its control as requested by the other party, without issuance
of a subpoena, and (ii) to secure voluntary attendance of desired third-party witnesses and
production of desired third-party books, papers, documents, or tangible things whenever
possible.
(3) Requests for subpoenas -- (i) A request for a subpoena shall normally be filed at least:
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(A) 15 days before a scheduled deposition where the attendance of a witness at a
deposition is sought;
(B) 30 days before a scheduled hearing where the attendance of a witness at a hearing is
sought.
In its discretion, the Board may honor requests for subpoenas not made within these time
limitations.
(ii) A request for a subpoena shall state the reasonable scope and general relevance to the
case of the testimony and of any books and papers sought.
(4) Requests to quash or modify. Upon written request by the person subpoenaed or by a
party, made within 10 days after service but in any event not later than the time specified
in the subpoena for compliance, the Board may (i) quash or modify the subpoena if it is
unreasonable and oppressive or for other good cause shown, or (ii) require the person in
whose behalf the subpoena was issued to advance the reasonable cost of producing
subpoenaed books and papers. Where circumstances require, the Board may act upon
such a request at any time after a copy has been served upon the opposing party.
(5) Form; issuance -- (i) Every subpoena shall state the name of the Board and the title of
the appeal, and shall command each person to whom it is directed to attend and give
testimony and, if appropriate, to produce specified books and papers at a time and place
therein specified. In issuing a subpoena to a requesting party, the Administrative Judge
shall sign the subpoena and may, in his or her discretion, enter the name of the witness
and otherwise leave it blank. The party to whom the subpoena is issued shall complete
the subpoena before service.
(ii) Where the witness is located in a foreign country, a letter rogatory or subpoena may
be issued and served under the circumstances and in the manner provided in 28 U.S.C.
1781-1784.
(6) Service. (i) The party requesting issuance of a subpoena shall arrange for service.
(ii) A subpoena requiring the attendance of a witness at a deposition or hearing may be
served at any place. A subpoena may be served by a United States marshal or deputy
marshal, or by any other person who is not a party and not less than 18 years of age.
Service of a subpoena upon a person named therein shall be made by personally
delivering a copy to that person and tendering the fees for one day's attendance and the
mileage provided by 28 U.S.C. 1821 or other applicable law; however, where the
subpoena is issued on behalf of the Government, money payments need not be tendered
in advance of attendance.
(iii) The party at whose request a subpoena is issued shall be responsible for the payment
of fees and mileage of the witness and of the officer who serves the subpoena. The failure
to make payment of such charges on demand may be deemed by the Board as a sufficient
ground for striking the testimony of the witness and the books or papers the witness has
produced.
(7) Contumacy or refusal to obey a subpoena. In case of contumacy or refusal to obey a
subpoena by a person who resides, is found, or transacts business within the jurisdiction
of a United States District Court, the Board will apply to the Court through the Attorney
General of the United States for an order requiring the person to appear before the Board
or a member thereof to give testimony or produce evidence or both. Any failure of any
such person to obey the order of the Court may be punished by the Court as a contempt
thereof.
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(v) Rule 22; copies of papers. When books, records, papers, or documents have been
received in evidence, true copies thereof, or of such part thereof as may be material or
relevant, may be substituted therefor, during the hearing or at the conclusion thereof.
(w) Rule 23; posthearing briefs. Posthearing briefs may be submitted upon such terms as
may be agreed to by the parties and the presiding Administrative Judge or examiner at the
conclusion of the hearing.
(x) Rule 24; transcript of proceedings. Testimony and argument at hearings shall be
reported verbatim, unless the Board otherwise orders. Waiver of transcript may be
especially suitable for hearings under paragraph (l)(2) of this section (Rule 12.2).
Transcripts or copies of the proceedings shall be supplied to the parties at the actual cost
of duplication.
(y) Rule 25; withdrawal of exhibits. After a decision has become final, the Board may,
upon request and after notice to the other party, in its discretion, permit the withdrawal of
original exhibits, or any part thereof, by the party entitled thereto. The substitution of true
copies of exhibits or any part thereof may be required by the Board in its discretion as a
condition of granting permission for such withdrawal.
(z) Rule 26; representation -- the appellant. An individual appellant may appear before
the Board in person; a corporation by one of its officers; and a partnership or joint
venture by one of its members; or any of these by an attorney at law duly licensed in any
State, commonwealth, territory, the District of Columbia, or in a foreign country. An
attorney representing an appellant shall file a written notice of appearance with the
Board.
(aa) Rule 27; representation -- the government. Government counsel may, in accordance
with their authority, represent the interests of the Government before the Board. They
shall file notices of appearance with the Board, and notice thereof will be given appellant
or appellant's attorney in the form specified by the Board from time to time.
(bb) Rule 28; decisions. Decisions of the Board will be made in writing and authenticated
copies of the decision will be forwarded simultaneously to both parties. The rules of the
Board and all final orders and decisions (except those required for good cause to be held
confidential and not cited as precedents) shall be open for public inspection at the office
of the Board in Washington, DC. Decisions of the Board will be made solely upon the
record, as described in paragraph (m) of this section (Rule 13).
(cc) Rule 29; motions for reconsideration. A motion for reconsideration may be filed by
either party. It shall set forth specifically the grounds relied upon to support the motion.
The motion shall be filed within 30 days from the date of the receipt of a copy of the
decision of the Board by the party filing the motion.
(dd) Rule 30; suspension and dismissal without prejudice. Whenever appellant and the
Government counsel are in agreement as to disposition of the controversy, the Board may
suspend or terminate further processing of the appeal. If, thereafter, the Board is advised
by either party that the controversy has not been disposed of by agreement, the case shall
be restored to the Board's calendar without loss of position. In other cases where the
Board is unable to proceed with disposition for reasons not within the control of the
Board, an appeal may be placed in a suspense status. Where the suspension has continued,
or may continue, for an inordinate length of time, the Board, in its discretion, may
dismiss such appeal from its docket without prejudice to restoration when the cause of
suspension has been removed. Unless either party or the Board acts within three years to
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reinstate any appeal dismissed without prejudice, the dismissal shall be deemed to be
with prejudice.
(ee) Rule 31; dismissal or default for failure to prosecute or defend. Whenever a record
discloses the failure of either party to file documents required by these rules, respond to
notices or correspondence from the Board, comply with orders of the Board, or otherwise
indicates an intention not to continue the prosecution or defense of an appeal, the Board
may, in the case of a default by the appellant, issue an order to show cause why the
appeal should not be dismissed or, in the case of a default by the Government, issue an
order to show cause why the Board should not act thereon pursuant to paragraph (ii) of
this section (Rule 35). If good cause is not shown, the Board may take appropriate action.
(ff) Rule 32; remand from court. Whenever any court remands a case to the Board for
further proceedings, each of the parties shall, within 20 days of such remand, submit a
report to the Board recommending procedures to be followed so as to comply with the
court's order. The Board shall consider the reports and enter special orders governing the
handling of the remanded case. To the extent the court's directive and time limitations
permit, such orders shall conform to these rules.
(gg) Rule 33; time, computation, and extensions. (1) Where possible, procedural actions
should be taken in less time than the maximum time allowed. Where appropriate and
justified, however, extensions of time will be granted. All requests for extensions of time
shall be in writing.
(2) In computing any period of time, the day of the event from which the designated
period of time begins to run shall not be included, but the last day of the period shall be
included unless it is a Saturday, Sunday, or a legal holiday, in which event the period
shall run to the end of the next business day.
(hh) Rule 34; ex parte communications. No member of the Board or of the Board's staff
shall entertain, nor shall any person directly or indirectly involved in an appeal submit to
the Board or the Board's staff, off the record, any evidence, explanation, analysis, or
advice, whether written or oral, regarding any matter at issue in an appeal. This provision
does not apply to consultation among Board members nor to ex parte communications
concerning the Board's administrative functions or procedures.
(ii) Rule 35; sanctions. If any party fails or refuses to obey an order issued by the Board,
the Board may make such order as it considers necessary to the just and expeditious
conduct of the appeal.
(jj) Rule 36; effective date and applicability. These rules shall apply (1) mandatorily, to
all appeals relating to contracts entered into on or after March 1, 1979, and (2) at the
contractor's election, to appeals relating to earlier contracts, with respect to claims
pending before the contracting officer on March 1, 1979 or initiated thereafter.
[47 FR 12340, Mar. 23, 1982; 60 FR 48028, 48029, Sept. 18, 1995]
(41 U.S.C. 601-613, 38 U.S.C. 501.)
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
PART-TIME CAREER EMPLOYMENT PROGRAM
§ 1.891 Purpose of program.
§ 1.892 Review of positions.
§ 1.893 Establishing and converting part-time positions.
§ 1.894 Annual goals and timetables.
§ 1.895 Review and evaluation.
§ 1.896 Publicizing vacancies.
§ 1.897 Exceptions.
§ 1.891 Purpose of program.
Many individuals in society possess great productive potential which goes unrealized
because they cannot meet the requirements of a standard workweek. Permanent part-time
employment also provides benefits to other individuals in a variety of ways, such as
providing older individuals with a gradual transition into retirement, providing
employment opportunities to handicapped individuals or others who requires a reduced
workweek, providing parents opportunities to balance family responsibilities with the
need for additional income, and assisting students who must finance their own education
or vocational training. In view of this, the Department of Veterans Affairs will operate a
part-time career employment program, consistent with the needs of its beneficiaries and
its responsibilities.
[44 FR 55172, Sept. 25, 1979]
(5 U.S.C. 3401 note)
§ 1.892 Review of positions.
Positions becoming vacant, unless excepted as provided by § 1.897, will be reviewed to
determine the feasibility of converting them to part-time. Among the criteria which may
be used when conducting this review are:
(a) Mission requirements.
(b) Workload.
(c) Employment ceilings and budgetary considerations.
(d) Availability of qualified applicants willing to work part time.
(e) Other criteria based on local needs and circumstances.
[44 FR 55172, Sept. 25, 1979]
(5 U.S.C. 3402)
§ 1.893 Establishing and converting part-time positions.
Position management and other internal reviews may indicate that positions may be either
converted from full-time or initially established as part-time positions. Criteria listed in §
1.892 may be used during these reviews. If a decision is made to convert to or to establish
a part-time position, regular position management and classification procedures will be
followed.
[44 FR 55172, Sept. 25, 1979]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(5 U.S.C. 3402)
§ 1.894 Annual goals and timetables.
An departmentwide plan for promoting part-time employment opportunities will be
developed annually. This plan will establish annual goals and set interim and final
deadlines for achieving these goals. This plan will be applicable throughout the agency,
but may be supplemented by field facilities.
[44 FR 55172, Sept. 25, 1979]
(5 U.S.C. 3402)
§ 1.895 Review and evaluation.
The part-time career employment program will be reviewed through regular employment
reports to determine levels of part-time employment. This program will also be
designated an item of special interest to be reviewed during personnel management
reviews.
[44 FR 55172, Sept. 25, 1979; 61 FR 38570, 38571, July 25, 1996]
(5 U.S.C. 3402)
[EFFECTIVE DATE NOTE: 61 FR 38570, 38571, July 25, 1996, which revised this
section, became effective Aug. 26, 1996.]
§ 1.896 Publicizing vacancies.
When applicants from outside the Federal service are desired, part-time vacancies may be
publicized through various recruiting means, such as:
(a) Federal Job Information Centers.
(b) State Employment offices.
(c) VA Recruiting Bulletins.
[44 FR 55172, Sept. 25, 1979]
(5 U.S.C. 3402)
§ 1.897 Exceptions.
The Secretary of Veterans Affairs, or designees, may except positions from inclusion in
this program as necessary to carry out the mission of the Department.
[44 FR 55172, Sept. 25, 1979]
(5 U.S.C. 3402)
——————————
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STANDARDS FOR COLLECTION, COMPROMISE, SUSPENSION OR
TERMINATION OF COLLECTION EFFORT, AND REFERRAL OF CIVIL
CLAIMS FOR MONEY OR PROPERTY
§ 1.900 Prescription of standards.
§ 1.901 Omissions not a defense.
§ 1.902 Fraud, antitrust and tax claims excluded.
§ 1.903 Settlement, waiver, or compromise under other statutory or regulatory
authority.
§ 1.904 Conversion claims.
§ 1.905 Subdivision of claims not authorized.
§ 1.906 Required administrative proceedings.
§ 1.907 Definitions.
Authority: Sections 1.900 through 1.953 are issued under the authority of 31 U.S.C.
3711 through 3720E; 38 U.S.C. 501, and as noted in specific sections.
§ 1.900 Prescription of standards.
(a) The standards contained in §§1.900 through 1.953 are issued pursuant to the Federal
Claims Collection Standards, issued by the Department of the Treasury (Treasury) and
the Department of Justice (DOJ) in parts 900 through 904 of 31 CFR, as well as other
debt collection authority issued by Treasury in part 285 of 31 CFR, and apply to the
collection, compromise, termination, and suspension of debts owed to VA, and the
referral of such debts to Treasury (or other Federal agencies designated by Treasury)
for offset and collection action and to DOJ for litigation, unless otherwise stated in this
part or in other statutory or regulatory authority, or by contract.
(b) Standards and policies regarding the classification of debt for accounting
purposes (for example, write-off of uncollectible debt) are contained in the Office of
Management and Budget's Circular A-129 (Revised), ``Policies for Federal Credit
Programs and Non-Tax Receivables.''
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42104, Nov. 3, 1987; 69 FR 62188, Oct.
25, 2004]
Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.901 Omissions not a defense.
Sections 1.900 through 1.953 do not create any right or benefit, substantive or
procedural, enforceable at law or in equity by a party against the United States, its
agencies, its officers, or any other person, nor shall the failure of VA to comply with any
of the provisions of §§ 1.900 through 1.953 be available to any debtor as a defense.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42105, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.902 Fraud, antitrust and tax claims excluded.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) The standards in §§ 1.900 through 1.953 relating to compromise, suspension, and
termination of collection activity do not apply to any debt based in whole or in part on
conduct in violation of the antitrust laws or to any debt involving fraud, the presentation
of a false claim, or misrepresentation on the part of the debtor or any party having an
interest in the claim. Only the Department of Justice (DOJ) has the authority to
compromise, suspend, or terminate collection activity on such claims. The standards in
§§ 1.900 through 1.953 relating to the administrative collection of claims do apply, but
only to the extent authorized by DOJ in a particular case. Upon identification of a claim
based in whole or in part on conduct in violation of the antitrust laws or any claim
involving fraud, the presentation of a false claim, or misrepresentation on the part of the
debtor or any party having an interest in the claim, VA shall promptly refer the case to
DOJ. At its discretion, DOJ may return the claim to VA for further handling in
accordance with the standards in §§ 1.900 through 1.953.
(b) Sections 1.900 through 1.953 do not apply to tax debts.
(c) Sections 1.900 through 1.953 do not apply to claims between Federal agencies.
(d) Federal agencies should attempt to resolve interagency claims by negotiation in
accordance with Executive Order 12146 (3 CFR, 1980 Comp., pp. 409-412).
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42105, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
(37 U.S.C. 3711)
§ 1.903 Settlement, waiver, or compromise under other statutory or regulatory
authority.
Nothing in §§ 1.900 through 1.953 precludes VA settlement, waiver, compromise, or
other disposition of any claim under statutes and implementing regulations other than
subchapter II of chapter 37 of Title 31 of the United States Code (Claims of the United
States Government) and the standards in Title 31 CFR parts 900 through 904. See, for
example, the Federal Medical Care Recovery Act (42 U.S.C. 2651 et seq.) and
applicable regulations, 28 CFR part 43. In such cases, the laws and regulations that are
specifically applicable to claims collection activities of VA generally take precedence
over 31 CFR parts 900 through 904.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42105, Nov. 3, 1987; 69 FR 62188, Oct.
25, 2004]
Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.904 Conversion claims.
Claims may be paid in the form of money or, when a contractual basis exists, VA may
demand the return of specific property or the performance of specific services.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[32 FR 2613, Feb. 8, 1967; 69 FR 62188, Oct. 25, 2004]
Sections 1.900 to 1.906 appear at 32 FR 2613, Feb. 8, 1967.
Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.905 Subdivision of claims not authorized.
Debts may not be subdivided to avoid the monetary ceiling established by 31 U.S.C.
3711(a)(2). A debtor's liability arising from a particular transaction or contract shall be
considered as a single debt in determining whether the debt is one of less than $100,000
(excluding interest, penalties, and administrative costs) or such higher amount as the
Attorney General shall from time to time prescribe for purposes of compromise,
suspension, or termination of collection activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42105, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.906 Required administrative proceedings.
(a) In applying §§ 1.900 through 1.953, VA is not required to omit, foreclose, or
duplicate administrative proceedings required by contract or other laws or regulations.
(b) Nothing contained in §§ 1.900 through 1.953 is intended to foreclose the right of
any debtor to an administrative proceeding, including appeals, waivers, and hearings
provided by statute, contract, or VA regulation (see 38 U.S.C. 3720(a)(4) and 5302 and
42 U.S.C. 2651- 2653).
(Authority: 38 U.S.C. 501, 3720(a)(4), 5302; 42 U.S.C. 2651 through 2653).
[32 FR 2613, Feb. 8, 1967; 69 FR 62188, Oct. 25, 2004]
Sections 1.900 to 1.906 appear at 32 FR 2613, Feb. 8, 1967.
Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.907 Definitions.
(a) The definitions and construction found in the Federal Claims Collection Standards
in 31 CFR 900.2(a) through (d), and the definitions in the provisions on administrative
wage garnishment in 31 CFR 285.11(c) shall apply to §§ 1.900 through 1.953, except
as otherwise stated.
(b) As used in §§ 1.900 through 1.953, referral for litigation means referral to the
Department of Justice for appropriate legal actions, except in those specified instances
where a case is referred to a VA Regional Counsel for legal action.
(c) As used in §§ 1.900 through 1.953, VA benefit program means medical care, home
loan, and benefits payment programs administered by VA under Title 38 of the United
States Code, except as otherwise stated.
(d) As used in §§ 1.900 through 1.953, Treasury means the United States Department of
the Treasury.
(Authority: 31 U.S.C. 3701, 3711; 38 U.S.C. 501, 5316).
[52 FR 42105, Nov. 3, 1987; 61 FR 7215, 7216, Feb. 27, 1996; 69 FR 62188, Oct. 25,
2004]
(31 U.S.C. 3701, 3711)
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, which substituted
"Regional Counsel" for "District Counsel" in paragraph (c), became effective Oct. 1,
1995.]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
STANDARDS FOR COLLECTION OF CLAIMS
§ 1.910 Aggressive collection action.
§ 1.911 Collection of debts owed by reason of participation in a benefits program.
§ 1.912 Collection by offset.
§ 1.912a Collection by offset -- from VA benefit payments.
§ 1.913 Liquidation of collateral.
§ 1.914 Collection in installments.
§ 1.915 Interest.
§ 1.916 Disclosure of debt information to consumer reporting agencies (CRA).
§ 1.917 Contracting for collection services.
§ 1.918 Use and disclosure of mailing addresses.
§ 1.919 Administrative offset against amounts payable from Civil Service Retirement
and Disability Fund, Federal Employees Retirement System (FERS), final salary
check, and lump sum leave payments.
§ 1.920 Referral of VA debts.
§ 1.921 Analysis of costs.
§ 1.922 Exemptions.
§ 1.910 Aggressive collection action.
(a) VA will take aggressive collection action on a timely basis, with effective follow-up,
to collect all claims for money or property arising from its activities.
(b) In accordance with 31 U.S.C. 3711(g) and the procedures set forth at 31 CFR
285.12, VA shall transfer to Treasury any non-tax debt or claim that has been
delinquent for a period of 180 days or more so that Treasury may take appropriate
action to collect the debt or terminate collection action. This requirement does not
apply to any debt that:
(1) Is in litigation or foreclosure;
(2) Will be disposed of under an approved asset sale program;
(3) Has been referred to a private collection contractor for a period of time acceptable
to the Secretary of the Treasury;
(4) Is at a debt collection center for a period of time acceptable to the Secretary of the
Treasury;
(5) Will be collected under internal offset procedures within 3 years after the debt first
became delinquent; or
(6) Is exempt from this requirement based on a determination by the Secretary of the
Treasury that exemption for a certain class of debt is in the best interest of the United
States. VA may request that the Secretary of the Treasury exempt specific classes of
debts.
(c) In accordance with 31 U.S.C. 3716(c)(6) and the procedures set forth in 31 CFR
part 285, VA shall notify Treasury of all past due, legally enforceable non-tax debt that
is over 180 days delinquent for purposes of administrative offset, including tax refund
offset and federal salary offset. (Procedures for referral to Treasury for tax refund offset
are found at 31 CFR 285.2 and procedures for referral to Treasury for federal salary
offset are found at 38 CFR 1.995 and 31 CFR 285.7.)
(Authority: 31 U.S.C. 1311, 1316; 38 U.S.C. 501, 5314; 31 CFR part 285).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[32 FR 2613, Feb. 8, 1967; 69 FR 62188, Oct. 25, 2004]
Sections 1.910 to 1.921 appear at 32 FR 2613, Feb. 8, 1967.
Sections 1.910 to 1.921 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.911 Collection of debts owed by reason of participation in a benefits
program.
iv
Discussion and Analysis in the Veterans Benefits Manual
(a) Scope. This section applies to the collection of debts resulting from an individual's
participation in a VA benefit or home loan program. It does not apply to VA's other
debt collection activities. Standards for the demand for payment of all other debts
owed to VA are set forth in § 1.911a. School liability debts are governed by §
21.4009 of this title.
(b) Written demands. When VA has determined that a debt exists by reason of an
administrative decision or by operation of law, VA shall promptly demand, in writing,
payment of the debt. VA shall notify the debtor of his or her rights and remedies and
the consequences of failure to cooperate with collection efforts. Generally, one demand
letter is sufficient, but subsequent demand letters may be issued as needed.
(1) The Secretary determines that further demand would be futile;
(2) The debtor has indicated in writing that he or she does not intend to pay the debt;
(3) Judicial action to protect the Government's interest is indicated under the
circumstances; or
(4) Collection by offset pursuant to § 1.912a can be made.
(c) Rights and remedies. Subject to limitations referred to in this paragraph, the debtor
has the right to informally dispute the existence or amount of the debt, to request waiver
of collection of the debt, to a hearing on the waiver request, and to appeal the Department
of Veterans Affairs decision underlying the debt. These rights can be exercised separately
or simultaneously. Except as provided in § 1.912a (collection by offset), the exercise of
any of these rights will not stay any collection proceeding.
(1) Informal dispute. This means that the debtor writes to the Department of Veterans
Affairs and questions whether he or she owes the debt or whether the amount is accurate.
The Department of Veterans Affairs will, as expeditiously as possible, review the
accuracy of the debt determination. If the resolution is adverse to the debtor, he or she
may also request waiver of collection as indicated in paragraphs (c)(2) and (3) of this
section.
(2) Request for waiver; hearing on request. The debtor has the right to request waiver of
collection, in accordance with § 1.963 or § 1.964, and the right to a hearing on the request.
Requests for waivers must be filed in writing. A waiver request must be filed within the
time limit set forth in 38 U.S.C. 5302. If waiver is granted, in whole or in part, the debtor
has a right to refund of amounts already collected up to the amount waived.
(3) Appeal. In accordance with parts 19 and 20 of this title, the debtor may appeal the
decision underlying the debt
(d) Notification. The Department of Veterans Affairs shall notify the debtor in writing of
the following:
(1) The exact amount of the debt;
(2) The specific reasons for the debt, in simple and concise language;
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) The rights and remedies described in paragraph (c) of this section, including a brief
explanation of the concept of, and requirements for, waiver;
(4) That collection may be made by offset from current or future VA benefit payments
(see § 1.912a). In addition, the debtor shall be advised of any policies with respect to
the use of credit bureaus, debt collection centers, and collection agencies; any other
remedies to enforce payment of the debt, including administrative wage garnishment,
Federal salary offset, tax refund offset, and litigation; and the requirement that any debt
delinquent for more than 180 days be transferred to Treasury for administrative offset
or collection.
(5) That interest and administrative costs may be assessed in accordance with § 1.915,
as appropriate;
(6) That the debtor shall have the opportunity to inspect and copy records; and
(7) That the debtor shall have the opportunity to enter into a repayment agreement.
(e) Sufficiency of notification. Notification is sufficient when sent by ordinary mail
directed to the debtor's last known address and not returned as undeliverable by postal
authorities.
(f) Further explanation. Further explanation may be found for-(1) Appellate rights, in parts 19 and 20 of this title;
(2) Notification of any decision affecting the payment of benefits or granting relief, in §
3.103(e);
(3) Right to appeal a waiver decision, in § 1.958;
(4) Refund to a successful waiver applicant of money already collected, in § 1.967; and
(5) The assessment of interest and administrative costs, in § 1.915.
(Authority: 38 U.S.C. 501, 5302, 5314).
[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and amended at 52
FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989; 69 FR 62188, Oct. 25, 2004]
(38 U.S.C. 5302, 5314)
§ 1.911a Collection of non-benefit debts.
(a) This section is written in accordance with 31 CFR 901.2 and applies to the demand
for payment of all debts, except those debts arising out of participation in a VA benefit
or home loan program. Procedures for the demand for payment of VA benefit or home
loan program debts are set forth in § 1.911.
(b) Written demand as described in paragraph (c) of this section shall be made promptly
upon a debtor of VA in terms that inform the debtor of the consequences of failing to
cooperate with VA to resolve the debt. Generally, one demand letter is sufficient, but
subsequent letters may be issued. In determining the timing of the demand letter, VA
should give due regard to the need to refer debts promptly to the Department of Justice
for litigation, in accordance with §§ 1.950 through 1.953. When necessary to protect
VA's interest (for example, to prevent the running of a statute of limitations), written
demand may be preceded by other appropriate actions under 38 CFR 1.900 through
1.953, including immediate referral for litigation.
(c) The written demand letter shall inform the debtor of:
(1) The basis for the indebtedness and any rights the debtor may have to seek review
within VA, including the right to request waiver;
(2) The applicable standards for imposing any interest or other late payment charges;
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) The date by which payment should be made to avoid interest and other late payment
charges and enforced collection, which generally should not be more than 30 days from
the date that the demand letter is mailed;
(4) The name, address, and phone number of a contact person or office within the
agency;
(5) The opportunity to inspect and copy VA records related to the debt; and
(6) The opportunity to make a written agreement to repay the debt.
(d) In addition to the items listed in paragraph (c) of this section, VA should include in
the demand letter VA's willingness to discuss alternative methods of payment and its
policies with respect to the use of credit bureaus, debt collection centers, and collection
agencies. The letter should also indicate the agency's remedies to enforce payment of
the debt (including assessment of interest, administrative costs and penalties,
administrative garnishment, Federal salary offset, tax refund offset, administrative
offset, and litigation) and the requirement that any debt delinquent for more than 180
days be transferred to Treasury for collection.
(e) VA should respond promptly to communications from debtors and should advise
debtors who dispute debts, or request waiver, to furnish available evidence to support
their contentions.
(f) Prior to referring a debt for litigation, VA should advise each debtor determined to
be liable for the debt that, unless the debt can be collected administratively, litigation
may be initiated. This notification may be given as part of a demand letter under
paragraph (c) of this section or in a separate letter.
(g) When VA learns that a bankruptcy petition has been filed with respect to a debtor,
before proceeding with further collection action, VA should immediately seek legal
advice from either VA's General Counsel or Regional Counsel concerning the impact of
the Bankruptcy Code on any pending or contemplated collection activities. Unless VA
determines that the automatic stay imposed at the time of filing pursuant to 11 U.S.C.
362 has been lifted or is no longer in effect, in most cases collection activity against the
debtor should stop immediately.
(1) After VA seeks legal advice, a proof of claim should be filed in most cases with the
bankruptcy court or the Trustee. VA should refer to the provisions of 11 U.S.C. 106
relating to the consequences on sovereign immunity of filing a proof of claim.
(2) If VA is a secured creditor, it may seek relief from the automatic stay regarding its
security, subject to the provisions and requirements of 11 U.S.C. 362.
(3) Offset is prohibited in most cases by the automatic stay. However, VA should seek
legal advice from VA's General Counsel or Regional Counsel to determine whether
payments to the debtor and payments of other agencies available for offset may be
frozen by VA until relief from the automatic stay can be obtained from the
bankruptcy court. VA also should seek legal advice from VA's General Counsel or
Regional Counsel to determine whether recoupment is available.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[69 FR 62188, Oct. 25, 2004]
v
§ 1.912 Collection by offset.
Discussion and Analysis in the Veterans Benefits Manual
(a) Authority and scope. In accordance with the procedures set forth in 31 CFR 901.3,
as well as 31 CFR part 285, VA shall collect debts by administrative offset from
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
payments made by VA to a debtor indebted to VA. Also in accordance with 31 CFR
901.3(b), as well as 31 CFR part 285, VA shall refer past due, legally enforceable
non-tax debts which are over 180 days delinquent to Treasury for collection by
centralized administrative offset (further procedures are set forth in paragraph (g) of
this section). This section does not pertain to offset from either VA benefit payments
made under the authority of 38 U.S.C. 5314 or from current salary, but does apply to
offset from all other VA payments, including an employee's final salary check and
lump-sum leave payment. Procedures for offset from benefit payments are found in §
1.912a. Procedures for offset from current Federal salary are found in §§ 1.980 through
1.995. NOTE: VA cannot offset, or refer for the purpose of offset, either under the
authority of this section or under any other authority found in §§ 1.900 through 1.953
and §§ 1.980 through 1.995, any VA home loan program debt described in 38 U.S.C.
3726 unless the requirements set forth in that section have been met.
(b) Notification. Prior to initiation of administrative offset, if not provided in the initial
notice of indebtedness, VA is required to provide the debtor with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures from the specified VA
payment, the date of commencement of offset, and the exact amount to be offset;
(3) The opportunity to inspect and copy VA records pertaining to the debt;
(4) The right to contest either the existence or amount of the debt or the proposed offset
schedule, or if applicable, to request a waiver of collection of the debt, or to request a
hearing on any of these matters;
(5) That commencement of offset will begin, unless the debtor makes a written request
for the administrative relief discussed in paragraph (b)(4) of this section within 30 days of
the date of this notice; and
(6) The oppportunity to enter into a written agreement with VA to repay the debt in lieu
of offset.
(c) Deferral of offset. (1) If the debtor, within 30 days of the date of the notification
required by paragraph (b) of this section, disputes in writing the existence or amount of
the debt or the amount of the scheduled offset, offset shall not commence until the
dispute is reviewed and a decision is rendered by VA adverse to the debtor.
(2) If the debtor, within 30 days of the date of the required notification by VA, requests
in writing the waiver of collection of the debt in accordance with § 1.963, § 1.963a, or §
1.964, offset shall not commence until VA has made an initial decision to deny the
waiver request.
(3) If the debtor, within 30 days of the required notification by VA, requests in writing a
hearing on the issues found in paragraphs (c)(1) and (2) of this section, offset shall not
commence until a decision is rendered by VA on the issue which is the basis of the
hearing.
(d) Exceptions. (1) Offset may commence prior to either resolution of a dispute or
decision on a waiver request as discussed in paragraph (c) of this section, if collection
of the debt would be jeopardized by deferral of offset (for example, if VA first learns of
the debt when there is insufficient time before a final payment would be made to the
debtor to allow for prior notice and opportunity for review or waiver consideration).
In such a case, notification pursuant to paragraph (b) of this section shall be made at the
time offset begins or as soon thereafter as possible. VA shall promptly refund any
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
money that has been collected that is ultimately found not to have been owed to the
Government.
(2) If the United States has obtained a judgment against the debtor, offset may
commence without the notification required by paragraph (b) of this section. However,
a waiver request filed in accordance with the time limits and other requirements of §
1.963, § 1.963a, or § 1.964 will be considered, even if filed after a judgment has been
obtained against the debtor. If waiver is granted, in whole or in part, refund of amounts
already collected will be made in accordance with § 1.967.
(3) The procedures set forth in paragraph (b) of this section may be omitted when the
debt arises under a contract that provides for notice and other procedural protections.
(4) Offset may commence without the notification required by paragraph (b) of this
section when the offset is in the nature of a recoupment. As defined in 31 CFR 900.2(d),
recoupment is a special method for adjusting debts arising under the same transaction
or occurrence.
(e) Hearing. (1) After a debtor requests a hearing, VA shall notify the debtor of the form
of the hearing to be provided; i.e., whether the hearing will either be oral or paper. If an
oral hearing is determined to be proper by the hearing official, the notice shall set forth
the date, time, and location of the hearing. If the hearing is to be a paper review, the
debtor shall be notified that he or she should submit his or her position and arguments in
writing to the hearing official by a specified date, after which the record shall be closed.
This date shall give the debtor reasonable time to submit this information.
(2) Unless otherwise required by law, an oral hearing under this paragraph is not required
to be a formal evidentiary type of hearing.
(3) A debtor who requests a hearing shall be provided an oral hearing if VA determines
that the matter cannot be resolved by review of documentary evidence. Whenever an
issue of credibility or veracity is involved, an oral hearing will always be provided the
debtor. For example, the credibility or veracity of a debtor is always an issue whenever
the debtor requests a waiver of collection of the debt. Thus, a hearing held in conjunction
with a waiver request will always be an oral hearing. If a determination is made to
provide an oral hearing, the hearing official may offer the debtor the opportunity for a
hearing by telephone conference call. If this offer is rejected or if the hearing official
declines to offer a telephone conference call, the debtor shall be provided an oral hearing
permitting the personal appearance of the debtor, his or her personal representative, and
witnesses. Witnesses shall testify under oath or affirmation.
(4) In all other cases where a debtor requests a hearing, a paper hearing shall be provided.
The debtor shall be provided an opportunity to submit material for the record. A paper
hearing shall consist of a review of the written evidence of record by the designated
hearing official.
(f) Statutes of limitation; multiple debts. When collecting multiple debts by
administrative offset, VA shall apply the recovered amounts to those debts in
accordance with the best interests of the United States, as determined by the facts and
circumstances of the particular case, paying special attention to applicable statutes of
limitation. In accordance with 31 CFR 901.3(a)(4), VA may not initiate offset to collect
a debt more than 10 years after VA's right to collect the debt first accrued (with certain
exceptions as specified in 31 CFR 901.3(a)(4)).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(g) Centralized administrative offset. (1) When VA refers delinquent debts to Treasury
for centralized administrative offset in accordance with 31 CFR part 285, VA must
certify that:
(i) The debts are past due and legally enforceable; and
(ii) VA has complied with all due process requirements under 31 U.S.C. 3716(a) and
paragraphs (b) and (c) of this section.
(2) Payments that are prohibited by law from being offset are exempt from centralized
administrative offset.
(h) Computer Matching and Privacy Act waiver. In accordance with 31 U.S.C. 3716(f),
the Secretary of the Treasury may waive the provisions of the Computer Matching and
Privacy Protection Act of 1988 concerning matching agreements and post-match
notification and verification (5 U.S.C. 552a(o) and (p)) for centralized administrative
offset upon receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) and paragraphs (b) and (c) of this
section have been met. The certification of a debt in accordance with paragraph (g) of
this section will satisfy this requirement. If such a waiver is granted, only the Data
Integrity Board of the Department of the Treasury is required to oversee any matching
activities, in accordance with 31 U.S.C. 3716(g).
(i) Requests by creditor agencies for offset. Unless the offset would not be in VA's best
interest, or would otherwise be contrary to law, VA will comply with requests by
creditor agencies to offset VA payments (except for current salary or benefit payments)
made to a person indebted to the creditor agency. However, before VA may initiate
offset, the creditor agency must certify in writing to VA that the debtor has been
provided:
(1) Written notice of the type and amount of the debt and the intent of the creditor
agency to use administrative offset to collect the debt;
(2) The opportunity to inspect and copy agency records related to the debt;
(3) The opportunity for review within the agency of the determination of the
indebtedness; and
(4) The opportunity to make a written agreement to repay the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69 FR 62188,
Oct. 25, 2004]
(31 U.S.C. 3716)
§ 1.912a Collection by offset -- from VA benefit payments.
(a) Authority and scope. VA shall collect debts governed by § 1.911 of this part by offset
against any current or future VA benefit payments to the debtor. Unless paragraphs (c) or
(d) of this section apply, offset shall commence promptly after notification to the debtor
as provided in paragraph (b) of this section. Certain military service debts shall be
collected by offset against current or future compensation or pension benefit payments to
the debtor under authority of 38 U.S.C. 5301(c), as provided in paragraph (e) of this
section.
(b) Notification. Unless paragraph (d) of this section applies, offset shall not commence
until the debtor has been notified in writing of the matters described in § 1.911(c) and (d)
and paragraph (c) of this section.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Deferral of offset. (1) If the debtor, within thirty days of the date of the notification
required by paragraph (b) of this section, disputes, in writing, the existence or amount of
the debt in accordance with § 1.911(c)(1), offset shall not commence until the dispute is
reviewed as provided in § 1.911(c)(1) and unless the resolution is adverse to the debtor.
(2) If the debtor, within thirty days of the date of notification required by paragraph (b) of
this section, requests, in writing, waiver of collection in accordance with § 1.963 or §
1.964, as applicable, offset shall not commence until the Department of Veterans Affairs
has made an initial decision on waiver.
(3) If the debtor, within thirty days of the notification required by paragraph (b) of this
section, requests, in writing, a hearing on the waiver request, no decision shall be made
on the waiver request until after the hearing has been held.
(4) VA will pursue collection action once an adverse initial decision is reached on the
debtor's request for waiver and/or the debtor's informal dispute (as described in §
1.911(c)(1)) concerning the existence or amount of the debt, even if the debtor
subsequently pursues appellate relief in accordance with parts 19 and 20 of this title.
(d) Exceptions. Offset may commence prior to the resolution of a dispute or a decision on
a waiver request if collection of the debt would be jeopardized by deferral of offset. In
such case, notification pursuant to § 1.911(d) shall be made at the time offset begins or as
soon thereafter as possible.
(e) Offset of military service debts. (1) In accordance with 38 U.S.C. 5301(c), VA shall
collect by offset from any current or future compensation or pension benefits payable to a
veteran under laws administered by VA, the uncollected portion of the amount of any
indebtedness associated with the veteran's participation in a plan prescribed in subchapter
I or II of 10 U.S.C. chapter 73.
(2) Offsets of a veteran's compensation or pension benefit payments to recoup
indebtedness to the military services as described in paragraph (e)(1) of this section shall
only be made by VA when the military service owed the debt has:
(i) Determined the amount of the indebtedness of the veteran;
(ii) Certified to VA that due process in accordance with the procedures prescribed in 31
U.S.C. 3716 have been provided to the veteran; and
(iii) Requested collection of the total debt amount due.
(3) Offset from any compensation or pension benefits under the authority of 38 U.S.C.
5301(c) shall not exceed 15% of the net monthly compensation or pension benefit
payment. The net monthly compensation or pension benefit payment is defined as the
authorized monthly compensation or pension benefit payment less all current deductions.
[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57 FR 47263, Oct.
15, 1992; 69 FR 62188, Oct. 25, 2004]
(38 U.S.C. 5301(c) and 5314)
§ 1.913 Liquidation of collateral.
(a) VA should liquidate security or collateral through the exercise of a power of sale in
the security instrument or a nonjudicial foreclosure, and apply the proceeds to the
applicable debt, if the debtor fails to pay the debt within 180 days after demand and if
such action is in the best interest of the United States. Collection from other sources,
including liquidation of security or collateral, is not a prerequisite to requiring payment
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
by a surety, insurer, or guarantor, unless such action is expressly required by statute or
contract.
(b) When VA learns that a bankruptcy petition has been filed with respect to a debtor,
VA should seek legal advice from VA's General Counsel or Regional Counsel
concerning the impact of the Bankruptcy Code, including, but not limited to, 11 U.S.C.
362, to determine the applicability of the automatic stay and the procedures for
obtaining relief from such stay prior to proceeding under paragraph (a) of this section.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42106, Nov. 3, 1987; renumbered from 1.916, revised 69 FR 62188, Oct. 25,
2004]
(31 U.S.C. 3711)
Former 1.913 "Personal interview with debtor" removed 69 FR 62188, Oct. 25, 2004
§ 1.914 Collection in installments.
(a) Whenever feasible, VA shall collect the total amount of a debt in one lump sum. If a
debtor is financially unable to pay a debt in one lump sum, VA may accept payment in
regular installments. VA should obtain financial statements from debtors who represent
that they are unable to pay in one lump sum and independently verify such
representations whenever possible. If VA agrees to accept payments in regular
installments, VA should obtain a legally enforceable written agreement from the debtor
that specifies all of the terms of the arrangement and contains a provision accelerating
the debt in the event of default.
(b) The size and frequency of installment payments should bear a reasonable relation to
the size of the debt and the debtor's ability to pay. If possible, the installment payments
should be sufficient in size and frequency to liquidate the debt in 3 years or less.
(c) Security for deferred payments should be obtained in appropriate cases. However,
VA may accept installment payments if the debtor refuses to execute a written
agreement or to give security.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42106, Nov.3, 1987; renumbered from 1.917, revised 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
Former 1.914 "Contact with debtor's employing agency" removed 69 FR 62188, Oct. 25,
2004
§ 1.915 Interest.
(a) Except as otherwise provided by statute, contract, or other regulation to the contrary,
and subject to 38 U.S.C. 3485(e) and 5302, VA shall assess:
(1) Interest on all indebtedness to the United States arising out of participation in a VA
benefit, medical care, or home loan program under authority of Title 38, U.S. Code.
(2) Interest and administrative costs of collection on such debts described in paragraph
(a)(1) of this section where repayment has become delinquent (as defined in 31 CFR
900.2(b)), and
(3) Interest, administrative costs, and penalties in accordance with 31 CFR 901.9 on all
debts other than those described in paragraph (a)(1) of this section.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) Every party entering into an agreement with the Department of Veterans Affairs for
repayment of indebtedness in installments shall be advised of the interest charges to be
added to the debt. All debtors being provided notice of indebtedness, including those
entering into repayment agreements, shall be advised that upon the debt becoming
delinquent, or in the case of repayment of already delinquent debts, interest and the
administrative costs of collection will be added to the principal amount of the debt.
(c) The rate of interest charged by VA shall be based on the rate established annually
by the Secretary of the Treasury in accordance with 31 U.S.C. 3717 and shall be
adjusted annually by VA on the first day of the calendar year. Once the rate of interest
has been determined for a particular debt, the rate shall remain in effect throughout the
duration of repayment of that debt. When a debtor defaults on a repayment agreement
and seeks to enter into a new agreement, VA may require payment of interest at a new
rate that reflects the current value of funds to the Treasury at the time the new
agreement is executed. Interest shall not be compounded, that is, interest shall not be
charged on accrued interest and administrative costs required by this section. If,
however, a debtor defaults on a previous repayment agreement, interest and
administrative costs that accrued but were not collected under the defaulted agreement
shall be added to the principal under the new agreement.
(d) Interest on amounts covered by this section shall accrue from the date the initial
notice of the debt is mailed to the debtor. Notification shall be considered sufficient when
effected by ordinary mail, addressed to the last known address, and such notice is not
returned as undeliverable by postal authorities.
(e) Interest under this section shall not be charged if the debt is paid in full within 30 days
of mailing of the initial notice described in paragraph (b) of this section. Once interest
begins to accrue, and after expiration of the time period for payment of the debt in full to
avoid assessment of interest and administrative costs, any amount received toward the
payment of such debt shall be first applied to payment of outstanding administrative cost
charges and then to accrued interest or costs, and then to principal, unless a different rule
is prescribed by statute, contract, or other regulation.
(f) All or any part of the interest and administrative costs assessed under this section are
subject to consideration for waiver under section 5302 of title 38 U.S.C., and appropriate
administrative procedures.
(1) In general, interest and administrative costs may be waived only when the principal of
the debt on which they are assessed is waived by a Committee on Waivers and
Compromises. However, VA may forbear collection of interest and administrative costs,
exclusive of collection of the principal of the debt on which they are assessed, as well as
terminate further assessment of interest and administrative costs when the collection of
such interest and costs are determined to be not in the government's best interest.
Collection of interest and administrative costs shall not be considered to be in the best
interest of the government when the amount of assessed interest and administrative cost
is so large that there is a reasonable certainty that the original debt will never be repaid.
The determination to forbear collection of interest and administrative cost, exclusive of
collection of the principal of the debt, shall be made by the Chief of the Fiscal activity at
the station responsible for the collection of the debt. Such a determination is not within
the jurisdiction of a Committee on Waivers and Compromises.
(2) [Reserved]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(g) Administrative costs assessed under this section shall be the average costs of
collection of similar debts, or actual collection costs as may be accurately determined in
the particular case. No administrative costs of collection will be assessed under this
section in any cases where the indebtedness is paid in full prior to the 30-day period
specified in paragraph (e) of this section, or in any case where a repayment plan is
proposed by the debtor and accepted by VA within that 30-day period, unless such
repayment agreement becomes delinquent (as defined in 31 CFR 900.2(b)).
(Authority: 31 U.S.C. 3717; 38 U.S.C. 501, 5302, 5315).
[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987; renumbered,
revised 69 FR 62188, Oct. 25, 2004]
(38 U.S.C. 5315)
Former 1.915 "Suspension or revocation of eligibility" removed 69 FR 62188, Oct. 25,
2004
§ 1.916 Disclosure of debt information to consumer reporting agencies (CRA).
(a) The Department of Veterans Affairs may disclose all information determined to be
necessary, including the name, address, Department of Veterans Affairs file number,
Social Security number, and date of birth, to consumer reporting agencies for the purpose
of-(1) Obtaining the location of an individual indebted to the United States as a result of
participation in any benefits program administered by VA or indebted in any other
manner to VA;
(2) Obtaining a consumer report in order to assess an individuals ability to repay a debt
when such individual has failed to respond to the Department's demand for repayment or
when such individual has notified the Department that he/she will not repay the
indebtedness; or
(3) Obtaining the location of an individual in order to conduct program evaluation studies
as required by 38 U.S.C. 527 or any other law.
(b) Information disclosed by the Department of Veterans Affairs under paragraph (a) of
this section to consumer reporting agencies shall neither expressly nor implicitly indicate
that an individual is indebted to the United States nor shall such information be recorded
by consumer reporting agencies in a manner that reflects adversely upon the individual.
Prior to disclosing this information, the Department of Veterans Affairs shall ascertain
that consumer reporting agencies with which it contracts are able to comply with this
requirement. The Department of Veterans Affairs shall also make reasonable efforts to
insure compliance by its contractor with this requirement.
(c) Subject to the conditions set forth in paragraph (d) of this section, information
concerning individuals may be disclosed to consumer reporting agencies for inclusion in
consumer reports pertaining to the individual, or for the purpose of locating the individual.
Disclosure of the fact of indebtedness will be made if the individual fails to respond in
accordance with written demands for repayment, or refuses to repay a debt to the United
States. In making any disclosure under this section, VA will provide consumer reporting
agencies with sufficient information to identify the individual, including the individual's
name, address, if known, date of birth, VA file number, and Social Security number.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(d)(1) Prior to releasing information under paragraph (c) of this section, the Department
of Veterans Affairs will send a notice to the individual. This notice will inform the
individual that-(i) The Department of Veterans Affairs has determined that he or she is indebted to the
Department of Veterans Affairs;
(ii) The debt is presently delinquent; and
(iii) The fact of delinquency may be reported to consumer reporting agencies after 30
days have elapsed from the date of the notice.
(2)(i) In accordance with Sec. 1.911 and Sec. 1.911a, VA shall notify each
individual of the right to dispute the existence and amount of the debt and to request a
waiver of the debt, if applicable.
(ii) If the Department of Veterans Affairs has not previously notified the individual of the
rights described in paragraph (d)(2)(i) of this section, the Department of Veterans Affairs
will include this information in the notice described in paragraph (d)(1) of this section.
The individual shall be afforded a minimum of 30 days from the date of the notice to
respond to it before information is reported to consumer reporting agencies.
(3) The Department of Veterans Affairs will defer reporting information to a consumer
reporting agency if the individual disputes the existence or amount of any debt or
requests waiver of the debt within the time limits set forth in paragraph (d)(2)(ii) of this
section. The Department of Veterans Affairs will review any dispute and notify the
individual of its findings. If the original decision is determined to be correct, or if the
individual's request for waiver is denied, the Department of Veterans Affairs may report
the fact of delinquency to a consumer reporting agency. However, the individual shall be
afforded 30 days from date of the notice of the agency's determination to repay the debt.
(4) Nothing in this section affects an individual's right to appeal an agency decision to the
Board of Veterans Appeals. However, information concerning the debt may be disclosed
while an appeal is pending before the Board of Veterans Appeals.
(5) Upon request, the Department of Veterans Affairs will notify an individual-(i) Whether information concerning a debt has been reported to consumer reporting
agencies;
(ii) Of the name and address of each consumer reporting agency to which information has
been released; and
(iii) Of the specific information released.
A notice of the right to request this information will be sent with the notice described in
paragraph (d)(1) of this section.
(e) Subsequent to disclosure of information to consumer reporting agencies as described
in paragraph (c) of this section, the Department of Veterans Affairs shall:
(1) Notify on a monthly basis each consumer reporting agency concerned of any
substantial change in the status or amount of indebtedness.
(2) Promptly verify any and all information disclosed if so requested by the consumer
reporting agency concerned.
(f) In the absence of a different rule prescribed by statute, contract, or other regulation, an
indebtedness is considered delinquent if not paid by the individual by the date due
specified in the notice of indebtedness, unless satisfactory arrangements are made by
such date.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(g) Notification shall be considered sufficient when effected by ordinary mail, addressed
to the last known address, and such notice is not returned as undeliverable by postal
authorities.
(h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract between the
Department of Veterans Affairs and a consumer reporting agency, nor does it apply to a
consumer reporting agency and its employees. See 38 U.S.C. 5701(i). This paragraph
does not relieve the Department of Veterans Affairs of its obligation to comply with the
Privacy Act.
(i) The term "consumer reporting agency" means any person or agency which, for
monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in
part in the practice of assembling or evaluating consumer credit information or other
information on consumers for the purpose of furnishing consumer reports to third parties
or to other consumer reporting agencies. The term "consumer reporting agency" shall
also mean any person or agency which serves as a marketing agent under arrangements
enabling third parties to obtain such information from consumer reporting agencies, or
which obtain such information for the purpose of furnishing it to consumer reporting
agencies.
(Authority: 31 U.S.C. 3711(e); 38 U.S.C. 501, 5701(g) and (i)).
[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987; renumbered,
revised 69 FR 62188, Oct. 25, 2004]
Former 1.916 "Liquidation of collateral" removed 69 FR 62188, Oct. 25, 2004
§ 1.917 Contracting for collection services.
(a) VA has authority to contract for collection services to recover delinquent debts,
provided that:
(1) The authority to resolve disputes, compromise claims, suspend or terminate collection
and refer the matter for litigation shall be retained by VA;
(2) The contractor shall be subject to 38 U.S.C. 5701, and to the Privacy Act of 1974, as
amended, to the extent specified in 5 U.S.C. 552a(m), and to applicable Federal and State
laws and regulations pertaining to debt collection practices, such as the Fair Debt
Collection Practices Act, 15 U.S.C. 1692 et seq.
(3) The contractor shall be required to strictly account for all amounts collected;
(4) Upon returning an account to VA for subsequent referral to the Department of Justice
for litigation, the contractor must agree to provide any data contained in its files relating
to § 1.951.
(b) In accordance with 31 U.S.C. 3718(d), or as otherwise permitted by law, collection
service contracts may be funded in the following manner:
(1) VA may fund a collection service contract on a fixed-fee basis (i.e., payment of a
fixed fee determined without regard to the amount actually collected under the contract).
Payment of the fee under this type of contract must be charged to available
appropriations;
(2) VA may also fund a collection service contract on a contingent-fee basis (i.e., by
including a provision in the contract permitting the contractor to deduct its fee from
amounts collected under the contract). The fee should be based upon a percentage of the
amount collected, consistent with prevailing commercial practice;
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) VA may enter into a contract under paragraph (b)(1) of this section only if and to the
extent that funding for the contract is provided for in advance by an appropriation act or
other legislation, except that this requirement does not apply to the use of a revolving
fund authorized by statute;
(4) Except as authorized under paragraphs (b)(2) and (b)(5) of this section, or unless
otherwise specifically provided by law, VA shall deposit all amounts recovered under
collection service contracts for Loan Guaranty debts into the Loan Guaranty Revolving
Fund, and for all other debts in the Treasury as miscellaneous receipts pursuant to 31
U.S.C. 3302.
(5) For benefit overpayments recovered under collection service contract, VA, pursuant
to 31 U.S.C. 3302, shall deposit:
(i) Amounts equal to the original overpayments in the appropriations account from which
the overpayments were made, and
(ii) Amount of interest or administrative costs in the Treasury as miscellaneous receipts.
(c) VA shall use government-wide debt collection contracts to obtain debt collection
services provided by private collection contractors. However, VA may refer debts to
private collection contractors pursuant to a contract between VA and a private
collection contractor only if such debts are not subject to the requirement to transfer
debts to Treasury for debt collection. See 31 U.S.C. 3711(g), 31 CFR 285.12(e), and 38
CFR 1.910.
(d) VA may enter into contracts for locating and recovering assets of the United States,
such as unclaimed assets.
(e) VA may enter into contracts for debtor asset and income search reports. In
accordance with 31 U.S.C. 3718(d), such contracts may provide that the fee a
contractor charges the agency for such services may be payable from the amounts
recovered, unless otherwise prohibited by statute.
(Authority: 31 U.S.C. 3718; 38 U.S.C. 501).
[52 FR 42107, Nov. 3, 1987; renumbered and revised 69 FR 62188, Oct. 25, 2004]
Former 1.917 "Collection in installments" removed 69 FR 62188, Oct. 25, 2004
§ 1.918 Use and disclosure of mailing addresses.
(a) When attempting to locate a debtor in order to compromise or collect a debt in
accordance with §§ 1.900 through 1.953, VA may send a request to the Secretary of the
Treasury, or his/her designee, in order to obtain the debtor's most current mailing
address from the records of the Internal Revenue Service.
(b) VA is authorized to use mailing addresses obtained under paragraph (a) of this
section to enforce collection of a delinquent debt and may disclose such mailing
addresses to other agencies and to collection agencies for collection purposes.
(c) VA will insure that procedures established under this section comply with the Privacy
Act (5 U.S.C. 552a) and the provisions of 26 U.S.C. 6103(p)(4) and applicable
regulations of the Internal Revenue Service.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42108, Nov. 3, 1987; renumbered, revised 69 FR 62188, Oct. 25, 2004]
Former 1.918 "Exploration of compromise" removed 69 FR 62188, Oct. 25, 2004
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.919 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund, Federal Employees Retirement System (FERS),
final salary check, and lump sum leave payments.
(a) Unless otherwise prohibited by law or regulation, and in accordance with 31 CFR
901.3(d), VA may request that money which is due and payable to a debtor from either
the Civil Service Retirement and Disability Fund or FERS be administratively offset in
reasonable amounts in order to collect, in one full payment or a minimal number of
payments, debts that are owed to VA by the debtor. Such requests shall be made to the
appropriate officials at the Office of Personnel Management (OPM) in accordance with
such regulations prescribed by the Director of OPM. (See 5 CFR 831.1801 through
831.1808). In addition, VA may also offset against a Federal employee's final salary
check and lump sum leave payment. §§ 1.912 for procedures for offset against a final
salary check and lump sum leave payment.
(b) When making a request to the Office of Personnel Management for administrative
offset under paragraph (a) of this section, VA shall include a written certification that:
(1) The debtor owes VA a debt, including the amount of the debt;
(2) VA has complied with the applicable statutes, regulations, and procedures of the
Office of Personnel Management; and
(3) VA has complied with §§ 1.911, 1.911a, 1.912, 1.912a, and 31 CFR 901.3, to the
extent applicable, including any required hearing or review.
(c) Once VA decides to request administrative offset from the Civil Service Retirement
and Disability Fund or Federal Employees Retirement System (FERS) under paragraph (a)
of this section, it shall make the request as soon as possible after completion of the
applicable procedures in order that the Office of Personnel Management may identify the
debtor's account in anticipation of the time when the debtor requests or becomes eligible
to receive payments from the Fund or FERS. This will satisfy any requirement that offset
be initiated prior to expiration of the applicable statutes of limitations. At such time as the
debtor makes a claim for payments from the Fund or FERS, if at least a year has elapsed
since the offset request was originally made, the debtor should be permitted to offer a
satisfactory repayment plan in lieu of offset upon establishing that such offset will create
financial hardship.
(d) If VA collects all or part of the debt by other means before deductions are made or
completed in accordance with paragraph (a) of this section, VA shall promptly act to
modify or terminate its request for offset under paragraph (a) of this section.
(e) The Office of Personnel Management is neither required nor authorized by this
section to review the merits of VA's determination with respect to the amount and
validity of the debt waiver under 5 U.S.C. 5584 or 38 U.S.C. 5302, or providing or not
providing an oral hearing.
(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716; 38 U.S.C. 501).
[52 FR 42108, Nov. 3, 1987; renumbered, revised 69 FR 62188, Oct. 25, 2004]
Former 1.919 "Interest" removed 69 FR 62188, Oct. 25, 2004
§ 1.920 Referral of VA debts.
(a) When authorized, VA may refer an uncollectible debt to another Federal or State
agency for the purpose of collection action. Collection action may include the offsetting
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
of the debt from any current or future payment, except salary (see paragraph (e) of this
section), made by such Federal or State agency to the person indebted to VA.
(b) VA must certify in writing that the individual owes the debt, the amount and basis of
the debt, the date on which payment became due, and the date VA's right to collect the
debt first accrued.
(c) This certification will also state that VA provided the debtor with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures;
(3) The opportunity to inspect and copy VA records pertaining to the debt;
(4) The right to contest both the existence and amount of the debt and to request a waiver
of collection of the debt (if applicable), as well as the right to a hearing on both matters;
(5) The opportunity to enter into a written agreement with VA for the repayment of the
debt; and
(6) Other applicable notices required by §§ 1.911, 1.911a, 1.912, and 1.912a.
(d) The written certification required by paragraphs (b) and (c) of this section will also
contain (for all debts) a listing of all actions taken by both VA and the debtor subsequent
to the notice, as well as the dates of such actions.
(e) The referral by VA of a VA debt to another agency for the purpose of salary offset
shall be done in accordance with 38 CFR 1.980 through 1.995 and regulations
prescribed by the Director of the Office of Personnel Management (OPM) in 5 CFR
part 550, subpart K.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42108, Nov. 3, 1987; renumbered, revised 69 FR 62188, Oct. 25, 2004]
Former 1.920 "Documentation of collection action" removed 69 FR 62188, Oct. 25, 2004
§ 1.921 Analysis of costs.
VA collection procedures should provide for periodic comparison of costs incurred and
amounts collected. Data on costs and corresponding recovery rates for debts of different
types and in various dollar ranges should be used to compare the cost effectiveness of
alternative collection techniques, establish guidelines with respect to points at which
costs of further collection efforts are likely to exceed recoveries, assist in evaluating
offers in compromise, and establish minimum debt amounts below which collection
efforts need not be taken.
(Authority: 31 U.S.C. 3711-3719; 38 U.S.C. 501).
[52 FR 42109, Nov. 3, 1987; renumbered, revised 69 FR 62188, Oct. 25, 2004]
Former 1.921 "Additional collection action" removed 69 FR 62188, Oct. 25, 2004
§ 1.922 Exemptions.
(a) Sections 1.900 through 1.953, to the extent they reflect remedies or procedures
prescribed by the Debt Collection Act of 1982 and the Debt Collection Improvement
Act of 1996, such as administrative offset, use of credit bureaus, contracting for
collection agencies, and interest and related charges, do not apply to debts arising under,
or payments made under, the Internal Revenue Code of 1986, as amended (26 U.S.C.
1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.), except to the extent provided
under 42 U.S.C. 404 and 31 U.S.C. 3716(c); or the tariff laws of the United States.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
These remedies and procedures, however, may be authorized with respect to debts that
are exempt from the Debt Collection Act of 1982 and the DCIA of 1996, to the extent
that they are authorized under some other statute or the common law.
(b) This section should not be construed as prohibiting the use of §§ 1.900 through
1.953 when collecting debts owed by persons employed by agencies administering the
laws cited in paragraph (a) of this section unless the debt arose under those laws.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42109, Nov. 3, 1987; renumbered, revised 69 FR 62188, Oct. 25, 2004]
Former 1.922 "Disclosure of debt information to consumer reporting agencies (CRA)"
removed 69 FR 62188, Oct. 25, 2004
§ 1.923 Administrative wage garnishment.
(a) In accordance with the procedures set forth in 31 U.S.C. 3720D and 31 CFR 285.11,
VA or Treasury may request that a non-Federal employer garnish the disposable pay of
an individual to collect delinquent non-tax debt owed to VA. VA may pursue wage
garnishment independently in accordance with this section or VA or Treasury may
pursue garnishment after VA refers a debt to Treasury in accordance with Sec. 1.910
of this part and 31 CFR 285.12. For the purposes of this section, any reference to
Treasury also includes any private collection agency under contract to Treasury.
(b) At least 30 days prior to the initiation of garnishment proceedings, VA or Treasury
shall send a written notice, as described in 31 CFR 285.11(e), by first class mail to the
debtor's last known address. This notice shall inform the debtor of:
(1) The nature and amount of the debt;
(2) The intention of VA or Treasury to initiate proceedings to collect the debt through
deductions from the debtor's pay until the debt and all accumulated interest, and other
late payment charges, are paid in full, and;
(3) An explanation of the debtor's rights, including the opportunity:
(i) To inspect and copy VA records pertaining to the debt;
(ii) To enter into a written repayment agreement with VA or Treasury under terms
agreeable to VA or Treasury, and;
(iii) To a hearing in accordance with 31 CFR 285.11(f) and paragraph (c) of this section
concerning the existence or amount of the debt or the terms of the proposed repayment
schedule under the garnishment order. However, the debtor is not entitled to a hearing
concerning the terms of the proposed repayment schedule if these terms have been
established by written agreement under paragraph (b)(3)(ii) of this section.
(c) Any hearing conducted as part of the administrative wage garnishment process shall
be conducted by the designated hearing official in accordance with the procedures set
forth in 31 CFR 285.11(f). This hearing official may be any VA Board of Contract
Appeals Administrative Judge or Hearing Examiner, or any other VA hearing official.
This hearing official may also conduct administrative wage garnishment hearings for
other Federal agencies.
(1) The hearing may be oral or written as determined by the designated hearing official.
The hearing official shall provide the debtor with a reasonable opportunity for an oral
hearing when the hearing official determines that the issue in dispute cannot be
resolved by review of documentary evidence, for example, when the validity of the
claim turns on the issue of credibility or veracity. The hearing official shall establish the
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
time and place of any oral hearing. At the debtor's option, an oral hearing may be
conducted either in person or by telephone conference call. A hearing is not required
to be a formal, evidentiary-type hearing, but witnesses who testify in oral hearings must
do so under oath or affirmation. While it is not necessary to produce a transcript of the
hearing, the hearing official must maintain a summary record of the proceedings. All
travel expenses incurred by the debtor in connection with an in-person hearing shall
be borne by the debtor. VA or Treasury shall be responsible for all telephone expenses.
In the absence of good cause shown, a debtor who fails to appear at a hearing will be
deemed as not having timely filed a request for a hearing.
(2) If the hearing official determines that an oral hearing is not necessary, then he/she
shall afford the debtor a ``paper hearing.'' In a ``paper hearing,'' the hearing official will
decide the issues in dispute based upon a review of the written record.
(3) If the debtor's written request for a hearing is received by either VA or Treasury
within 15 business days following the mailing of the notice described in paragraph (b)
of this section, then VA or Treasury shall not issue a withholding order as described in
paragraph (d) of this section until the debtor is afforded the requested hearing and a
decision rendered. If the debtor's written request for a hearing is not received within 15
business days following the mailing of the notice described in paragraph (b) of this
section, then the hearing official shall provide a hearing to the debtor, but will not delay
issuance of a withholding order as described in paragraph (d) of this section, unless the
hearing official determines that the delay in filing was caused by factors beyond the
debtor's control.
(4) The hearing official shall notify the debtor of:
(i) The date and time of a telephone conference hearing;
(ii) The date, time, and location of an in-person oral hearing, or;
(iii) The deadline for the submission of evidence for a written hearing.
(5) Except as provided in paragraph (c)(6)of this section, VA or Treasury shall have the
burden of going forward to prove the existence or amount of the debt, after which the
debtor must show, by a preponderance of the evidence, that no debt exists or that the
amount of the debt is incorrect. In general, this means that the debtor must show that
it is more likely than not that a debt does not exist or that the amount of the debt is
incorrect. The debtor may also present evidence that terms of the repayment agreement
are unlawful, would cause a financial hardship, or that collection of the debt may not be
pursued due to operation of law.
(6) If the debtor has previously contested the existence and/or amount of the debt in
accordance with Sec. 1.911(c)(1) or Sec.
1.911a(c)(1) and VA subsequently
rendered a decision upholding the existence or amount of the debt, then such decision
shall be incorporated by reference and become the basis of the hearing official's
decision on such matters.
(7) The hearing official shall issue a written decision as soon as practicable, but not
later than 60 days after the date on which the request for such hearing was received by
VA or Treasury. The decision will be the final action for the purposes of judicial review
under the Administrative Procedure Act (5 U.S.C. 701 et seq.). The decision shall
include:
(i) A summary of the facts presented;
(ii) The hearing official's findings, analysis, and conclusions, and;
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(iii) The terms of the repayment schedule, if applicable.
(d) In accordance with 31 CFR 285.11(g) and (h), VA or Treasury shall send a
Treasury-approved withholding order and certification form by first class mail to the
debtor's employer within 30 days after the debtor fails to make a timely request for a
hearing. If a timely request for a hearing has been filed by the debtor, then VA or
Treasury shall send a withholding order and certification form by first class mail to
the debtor's employer within 30 days after a final decision is made to proceed with the
garnishment. The employer shall complete and return the certification form as
described in 31 CFR 285.11(h).
(e) After receipt of the garnishment order, the employer shall withhold the amount of
garnishment as described in 31 CFR 285.11(i) from all disposable pay payable to the
applicable debtor during each pay period.
(f) A debtor whose wages are subject to a wage withholding order under 31 CFR
285.11 may request a review, under the procedures set forth in 31 CFR 285.11(k), of
the amount garnished. A request for review shall only be considered after garnishment
has been initiated. The request must be based on materially changed circumstances such
as disability, divorce, or catastrophic illness which result in financial hardship that
limit the debtor's ability to provide food, housing, clothing, transportation, and medical
care for himself/herself and his/ her dependents.
(Authority: 31 U.S.C. 3720D; 38 U.S.C. 501; 31 CFR 285.11).
[69 FR 62188, Oct. 25, 2004]
§ 1.924 Suspension or revocation of eligibility for federal loans, loan insurance,
loan guarantees, licenses, permits, or privileges.
(a) In accordance with 31 U.S.C. 3720B and the procedures set forth in 31 CFR 285.13
and Sec. 901.6, a person owing an outstanding non-tax debt that is in delinquent
status shall not be eligible for Federal financial assistance unless exempted under
paragraph (d) of this section or waived under paragraph (e) of this section.
(b) Federal financial assistance or financial assistance means any Federal loan (other
than a disaster loan), loan insurance, or loan guarantee.
(c) For the purposes of this section only, a debt is in a delinquent status if the debt has
not been paid within 90 days of the payment due date or by the end of any grace period
provided by statute, regulation, contract, or agreement. The payment due date is the
date specified in the initial written demand for payment. Further guidance concerning
the delinquent status of a debt may be found at 31 CFR 285.13(d).
(d) Upon the written request and recommendation of the Secretary of Veterans Affairs,
the Secretary of the Treasury may grant exemptions from the provisions of this section.
The standards for exemptions granted for classes of debts are set forth in 31 CFR
285.13(f).
(e)(1) VA's Chief Financial Officer or Deputy Chief Financial Officer may waive the
provisions of paragraph (a) of this section only on a person-by-person basis.
(2) The Chief Financial Officer or Deputy Chief Financial Officer should balance the
following factors when deciding whether to grant a waiver:
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(i) Whether the denial of the financial assistance to the person would tend to interfere
substantially with or defeat the purposes of the financial assistance program or
otherwise would not be in the best interests of the Federal government; and
(ii) Whether the granting of the financial assistance to the person is contrary to the
government's goal of reducing losses by requiring proper screening of potential
borrowers.
(3) When balancing the factors described in paragraph (e)(2)(i) and (e)(2)(ii) of this
section, the Chief Financial Officer or Deputy Chief Financial Officer should consider:
(i) The age, amount, and cause(s) of the delinquency and the likelihood that the person
will resolve the delinquent debt; and
(ii) The amount of the total debt, delinquent or otherwise, owed by the person and the
person's credit history with respect to repayment of debt.
(4) A centralized record shall be retained of the number and type of waivers granted
under this section.
(f) In non-bankruptcy cases, in seeking the collection of statutory penalties, forfeitures,
or other similar types of claims, VA may suspend or revoke any license, permit, or
other privilege granted a debtor when the debtor inexcusably or willfully fails to pay
such a debt. The debtor should be advised in VA's written demand for payment of
VA's ability to suspend or revoke licenses, permits, or privileges. VA may suspend or
disqualify any lender, contractor, or broker who is engaged in making, guaranteeing,
insuring, acquiring, or participating in loans from doing further business with VA or
engaging in programs sponsored by VA if such lender, contractor, or broker fails to pay
its debts to the Government within a reasonable time, or if such lender, contractor, or
broker has been suspended, debarred, or disqualified from participation in a program or
activity by another Federal agency. The failure of any surety to honor its obligations in
accordance with 31 U.S.C. 9305 should be reported to Treasury.
(g) In bankruptcy cases, before advising the debtor of the intention to suspend or revoke
licenses, permits, or privileges, VA should seek legal advice from VA's General
Counsel or Regional Counsel concerning the impact of the Bankruptcy Code,
particularly 11 U.S.C. 362 and 525, which may restrict such action.
(Authority: 31 U.S.C. 3720B; 38 U.S.C. 501).
[69 FR 62188, Oct. 25, 2004]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
STANDARDS FOR COLLECTION OF CLAIMS
§ 1.929 Reduction of debt through performance of work-study services.
§ 1.929 Reduction of debt through performance of work-study services.
(a) Scope. (1) Subject to the provisions of this section VA may allow an individual to
reduce an indebtedness to the United States through offset of benefits to which the
individual becomes entitled by performance of work-study services under 38 U.S.C. 3485
and 3537 when the debt arose by virtue of the individual's participation in a benefits
program provided under any of the following:
(i) 38 U.S.C. chapter 30;
(ii) 38 U.S.C. chapter 31;
(iii) 38 U.S.C. chapter 32;
(iv) 38 U.S.C. chapter 34;
(v) 38 U.S.C. chapter 35;
(vi) 38 U.S.C. chapter 36 (other than an education loan provided under subpart F, part 21
of this title); or
(vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising from a refund penalty
imposed under 10 U.S.C. 16135).
(2) This section shall not apply in any case in which the individual has a pending request
for waiver of the debt under §§ 1.950 through 1.970.
(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)
(b) Selection criteria. (1) If there are more candidates for a work-study allowance than
there are work-study positions available in the area in which the services are to be
performed, VA will give priority to the candidates who are pursuing a program of
education or rehabilitation.
(2) Only after all candidates in the area described in paragraph (b)(1) of this section either
have been given work-study contracts or have withdrawn their request for contracts will
VA offer contracts to those who are not pursuing a program of education or rehabilitation
and who wish to reduce their indebtedness through performance of work-study services.
(3) VA shall not offer a contract to an individual who is receiving compensation from
another source for the work-study services the individual wishes to perform.
(4) VA shall not offer a contract to an individual if VA determines that the debt can be
collected through other means such as collection in a lump sum, collection in installments
as provided in § 1.917 or compromise as provided in § 1.918.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(c) Utilization. The work-study services to be performed under a debt-liquidation contract
will be limited as follows:
(1) If the individual is concurrently receiving educational assistance in a program
administered by VA, work-study services are limited to those allowed in the educational
program under which the individual is receiving benefits.
(2) If the individual is not concurrently receiving educational assistance in a program
administered by VA, the individual may perform only those work-study services and
activities which are or were open to those students receiving a work-study allowance
while pursuing a program of education pursuant to the chapter under which the debt was
incurred.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(d) Contract to perform services. (1) The work-study services performed to reduce
indebtedness shall be performed pursuant to a contract between the individual and VA.
(2) The individual shall perform the work-study services required by the contract at the
place or places designated by VA.
(3) The number of hours of services to be performed under the contract must be sufficient
to enable the individual to become entitled to a sum large enough to liquidate the debt by
offset.
(4) The number of weeks in the contract will not exceed the lesser of(i) The number of weeks of services the individual needs to perform to liquidate his or
her debt; or
(ii) 52.
(5) In determining the number of hours per week and the number of weeks under
paragraphs (d)(3) and (d)(4) of this section necessary to liquidate the debt, VA will use
the amount of the account receivable, including all accrued interest, administrative costs
and marshall fees outstanding on the date the contract is offered to the individual and all
accrued interest, administrative costs and marshall fees VA estimates will have become
outstanding on the debt on the date the debt is to be liquidated.
(6) The contract will automatically terminate after the total amount of the individual's
indebtedness described in paragraph (d)(5) of this section has been recouped, waived, or
otherwise liquidated. An individual performing work-study services under a contract to
liquidate a debt is released from the contract if the debt is liquidated by other means.
(7) The contract to perform work-study services for the purpose of liquidating
indebtedness will be terminated if:
(i) The individual is liquidating his or her debt under this section while receiving either
an educational assistance allowance for further pursuit of a program of education or a
subsistence allowance for further pursuit of a program of rehabilitation;
(ii) The individual terminates or reduces the rate of pursuit of his or her program of
education or rehabilitation; and
(iii) The termination or reduction causes an account receivable as a debt owed by the
individual.
(8) VA may terminate the contract at any time the individual fails to perform the services
required by the contract in a satisfactory manner.
(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)
(e) Reduction of indebtedness. (1) In return for the individual's agreement to perform
hours of services totaling not more than 40 times the number of weeks in the contract,
VA will reduce the eligible person's outstanding indebtedness by an amount equal to the
higher of -(i) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards
Act of 1938 times the number of hours the individual works; or
(ii) The hourly minimum wage under comparable law of the State in which the services
are performed times the number of hours the individual works.
(2) VA will reduce the individual's debt by the amount of the money earned for the
performance of work-study services after the completion of each 50 hours of services (or
in the case of any remaining hours required by the contract, the amount for those hours).
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(f) Suspension of collections by offset. Notwithstanding the provisions of § 1.912a,
during the period covered by the work-study debt-liquidation contract with the individual,
VA will ordinarily suspend the collection by offset of a debt described in paragraph (a)(1)
of this section. However, the individual may voluntarily permit VA to collect part of the
debt through offset against other benefits payable while the individual is performing
work-study services. If the contract is terminated before its scheduled completion date,
and the debt has not been liquidated, collection through offset against other benefits
payable will resume on the date the contract terminates.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(g) Payment for additional hours. (1) If an individual, without fault on his or her part,
performs work-study services for which payment may not be authorized, including
services performed after termination of the contract, VA will pay the individual at the
applicable hourly minimum wage for such services as the Director of the VA field station
of jurisdiction determines were satisfactorily performed.
(2) The Director of the VA field station of jurisdiction shall determine whether the
individual was without fault. In making this decision he or she shall consider all evidence
of record and any additional evidence which the individual wishes to submit.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
[62 FR 15400, 15401, April 1, 1997]
[EFFECTIVE DATE NOTE: 62 FR 15400, 15401, April 1, 1997, added this section,
effective May 1, 1997.]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
STANDARDS FOR COMPROMISE OF CLAIMS
§ 1.930 Scope and application.
§ 1.931 Bases for compromise.
§ 1.932 Enforcement policy.
§ 1.933 Joint and several liability.
§ 1.934 Further review of compromise offers.
§ 1.935 Consideration of tax consequences to Government.
§ 1.936 Mutual releases of the debtor and VA.
§ 1.937 [Removed].
§ 1.938 [Removed].
§ 1.930 Scope and application.
(a) The standards set forth in Sec. Sec. 1.930 through 1.936 of this part apply to the
compromise of debts pursuant to 31 U.S.C. 3711. VA may exercise such compromise
authority when the amount of the debt due, exclusive of interest, penalties, and
administrative costs, does not exceed $100,000 or any higher amount authorized by the
Attorney General.
(b) Unless otherwise provided by law, when the principal balance of a debt, exclusive
of interest, penalties, and administrative costs, exceeds $100,000 or any higher amount
authorized by the Attorney General, the authority to accept the compromise rests with
the Department of Justice (DOJ). If VA receives an offer to compromise any debt in
excess of $100,000, VA should evaluate the compromise offer using the same factors as
set forth in Sec. 1.931 of this part. If VA believes the offer has merit, it shall refer the
debt to the Civil Division or other appropriate division in DOJ using a Claims
Collection Litigation Report (CCLR). The referral shall include appropriate financial
information and a recommendation for the acceptance of the compromise offer. DOJ
approval is not required if VA decides to reject a compromise offer.
(c) The $100,000 limit in paragraph (b) of this section does not apply to debts that arise
out of participation in a VA loan program under Chapter 37 of Title 38 of the U.S.
Code. VA has unlimited authority to compromise debts arising out of participation in a
Chapter 37 loan program, regardless of the amount of the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C 501, 3720).
[57 FR 47263, Oct. 15, 1992; 69 FR 62188, Oct. 25, 2004]
§ 1.931 Bases for compromise.
(a) VA may compromise a debt if it cannot collect the full amount because:
(1) The debtor is unable to pay the full amount in a reasonable time, as verified through
credit reports or other financial information;
(2) VA is unable to collect the debt in full within a reasonable time by enforced
collection proceedings;
(3) The cost of collecting the debt does not justify the enforced collection of the full
amount; or
(4) There is significant doubt concerning VA's ability to prove its case in court.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) In determining the debtor's inability to pay, VA will consider relevant factors such
as the following:
(1) Age and health of the debtor;
(2) Present and potential income;
(3) Inheritance prospects;
(4) The possibility that assets have been concealed or improperly transferred by the
debtor; and
(5) The availability of assets or income that may be realized by enforced collection
proceedings.
(c) VA will verify the debtor's claim of inability to pay by using a credit report and
other financial information as provided in paragraph (g) of this section. VA should
consider the applicable exemptions available to the debtor under State and Federal law
in determining the ability to enforce collection. VA also may consider uncertainty as
to the price that collateral or other property will bring at a forced sale in determining
the ability to enforce collection. A compromise effected under this section should be for
an amount that bears a reasonable relation to the amount that can be recovered by
enforced collection procedures, with regard to the exemptions available to the debtor
and the time that collection will take.
(d) If there is significant doubt concerning VA's ability to prove its case in court for the
full amount claimed, either because of the legal issues involved or because of a bona
fide dispute as to the facts, then the amount accepted in compromise of such cases
should fairly reflect the probabilities of successful prosecution to judgment, with due
regard given to the availability of witnesses and other evidentiary support for VA's
claim. In determining the risks involved in litigation, VA will consider the probable
amount of court costs and attorney fees pursuant to the Equal Access to Justice Act, 28
U.S.C. 2412, that may be imposed against the Government if it is unsuccessful in
litigation.
(e) VA may compromise a debt if the cost of collecting the debt does not justify the
enforced collection of the full amount. The amount accepted in compromise in such
cases may reflect an appropriate discount for the administrative and litigative costs of
collection, with consideration given to the time it will take to effect collection.
Collection costs may be a substantial factor in the settlement of small debts. In
determining whether the cost of collecting justifies enforced collection of the full
amount, VA will consider whether continued collection of the debt, regardless of cost,
is necessary to further an enforcement principle.
(f) VA generally will not accept compromises payable in installments. If, however,
payment of a compromise in installments is necessary, VA will obtain a legally
enforceable written agreement providing that, in the event of default, the full original
principal balance of the debt prior to compromise, less sums paid thereon, is
reinstated. Whenever possible, VA will also obtain security for repayment.
(g) To assess the merits of a compromise offer based in whole or in part on the debtor's
inability to pay the full amount of a debt within a reasonable time, VA will obtain a
current financial statement from the debtor showing the debtor's assets, liabilities,
income, and expenses. Agencies also may obtain credit reports or other financial
information to assess compromise offers.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[52 FR 42109, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.932 Enforcement policy.
VA may compromise statutory penalties, forfeitures, or claims established as an aid to
enforcement and to compel compliance, if VA's enforcement policy in terms of
deterrence and securing compliance, present and future, will be adequately served by
VA's acceptance of the sum to be agreed upon.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
[52 FR 42110, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
§ 1.933 Joint and several liability.
(a) When two or more debtors are jointly and severally liable, VA will pursue
collection activity against all debtors, as appropriate. VA will not attempt to allocate the
burden of payment between the debtors but should proceed to liquidate the
indebtedness as quickly as possible.
(b) VA will ensure that a compromise agreement with one debtor does not release VA's
claim against the remaining debtors. The amount of a compromise with one debtor shall
not be considered a precedent or binding in determining the amount that will be
required from other debtors jointly and severally liable on the claim.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
Sections 1.930 to 1.937 appear at 32 FR 2614, Feb. 8, 1967.
[Revised 69 FR 62188, Oct. 25, 2004]
§ 1.934 Further review of compromise offers.
If VA is uncertain whether to accept a firm, written, substantive compromise offer on a
debt that is within its delegated compromise authority, it may refer the offer to VA
General Counsel or Regional Counsel or to the Civil Division or other appropriate
division in the Department of Justice (DOJ), using a Claims Collection Litigation
Report (CCLR) accompanied by supporting data and particulars concerning the debt.
DOJ may act upon such an offer or return it to the agency with instructions or advice.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
[52 FR 42110, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.935 Consideration of tax consequences to the Government.
In negotiating a compromise, VA will consider the tax consequences to the
Government. In particular, VA will consider requiring a waiver of
tax-loss-carry-forward and tax-loss-carry-back rights of the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
[52 FR 42110, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
§ 1.936 Mutual releases of the debtor and VA.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
In all appropriate instances, a compromise that is accepted by VA shall be implemented
by means of a mutual release, in which the debtor is released from further non-tax
liability on the compromised debt in consideration of payment in full of the
compromise amount, and VA and its officials, past and present, are released and
discharged from any and all claims and causes of action that the debtor may have
arising from the same transaction. In the event a mutual release is not executed when
a debt is compromised, unless prohibited by law, the debtor is still deemed to have
waived any and all claims and causes of action against VA and its officials related to
the transaction giving rise to the compromised debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
[57 FR 47264, Oct. 15, 1992; 69 FR 62188, Oct. 25, 2004]
§ 1.937 [Removed].
[52 FR 42110, Nov. 3, 1987; removed 69 FR 62188, Oct. 25, 2004]
§ 1.938 [Removed].
[52 FR 42110, Nov. 3, 1987; removed 69 FR 62188, Oct. 25, 2004]
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
STANDARDS FOR SUSPENDING OR TERMINATING COLLECTION
§ 1.940 Scope and application.
§ 1.941 Suspension of collection activity.
§ 1.942 Termination of collection activity.
§ 1.943 Exception to termination.
§ 1.944 Discharge of indebtedness; reporting requirements.
§ 1.940 Scope and application.
(a) The standards set forth in §§1.940 through 1.944 apply to the suspension or
termination of collection activity pursuant to 31 U.S.C. 3711 on debts that do not
exceed $100,000, or such other amount as the Attorney General may direct, exclusive
of interest, penalties, and administrative costs, after deducting the amount of partial
payments or collections, if any. Prior to referring a debt to the Department of Justice
(DOJ) for litigation, VA may suspend or terminate collection under this part with
respect to the debt.
(b) If, after deducting the amount of any partial payments or collections, the principal
amount of a debt exceeds $100,000, or such other amount as the Attorney General may
direct, exclusive of interest, penalties, and administrative costs, the authority to suspend
or terminate rests solely with DOJ. If VA believes that suspension or termination of
any debt in excess of $100,000 may be appropriate, it shall refer the debt to the Civil
Division or other appropriate division in DOJ, using the Claims Collection Litigation
Report (CCLR). The referral should specify the reasons for VA's recommendation. If,
prior to referral to DOJ, VA determines that a debt is plainly erroneous or clearly
without legal merit, VA may terminate collection activity regardless of the amount
involved without obtaining DOJ concurrence.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[57 FR 47264, Oct. 15, 1992; 69 FR 62188, Oct. 25, 2004]
§ 1.941 Suspension of collection activity.
(a) VA may suspend collection activity on a debt when:
(1) It cannot locate the debtor;
(2) The debtor's financial condition is expected to improve; or
(3) The debtor has requested a waiver or review of the debt.
(b) Based on the current financial condition of the debtor, VA may suspend collection
activity on a debt when the debtor's future prospects justify retention of the debt for
periodic review and collection activity and:
(1) The applicable statute of limitations has not expired; or
(2) Future collection can be effected by administrative offset, notwithstanding the
expiration of the applicable statute of limitations for litigation of claims, and with due
regard to the 10-year limitation for administrative offset prescribed by 31 U.S.C.
3716(e)(1); or
(3) The debtor agrees to pay interest on the amount of the debt on which collection will
be suspended, and such suspension is likely to enhance the debtor's ability to pay the
full amount of the principal of the debt with interest at a later date.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Collection action may also be suspended, in accordance with §§ 1.911, 1.911a,
1.912, and 1.912a, pending VA action on requests for administrative review of the
existence or amount of the debt or a request for waiver of collection of the debt.
However, collection action will be resumed once VA issues an initial decision on the
administrative review or waiver request.
(d) When VA learns that a bankruptcy petition has been filed with respect to a debtor,
in most cases the collection activity on a debt must be suspended, pursuant to the
provisions of 11 U.S.C. 362, 1201, and 1301, unless VA can clearly establish that the
automatic stay does not apply, has been lifted, or is no longer in effect. VA shall seek
legal advice immediately from either the VA General Counsel or Regional Counsel and,
if legally permitted, take the necessary steps to ensure that no funds or money are paid
by VA to the debtor until relief from the automatic stay is obtained.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42110, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
vi
§ 1.942 Termination of collection activity.
Discussion and Analysis in the Veterans Benefits Manual
Termination of collection activity involves a final determination. Collection activity may
be terminated on cases previously suspended. The Department of Veterans Affairs may
terminate collection activity and consider closing the agency file on a claim which meets
any one of the following standards:
(a) Inability to collect any substantial amount. Collection action may be terminated on a
claim when it becomes clear that VA cannot collect or enforce collection of any
significant amount from the debtor, having due regard for the judicial remedies available
to the agency, the debtor's future financial prospects, and the exemptions available to the
debtor under State and Federal law. In determining the debtor's inability to pay, the
following factors, among others, shall be considered: Age and health of the debtor,
present and potential income, inheritance prospects, the possibility that assets have been
concealed or improperly transferred by the debtor, the availability of assets or income
which may be realized by means of enforced collection proceedings.
(b) Inability to locate debtor. The debtor cannot be located, no security remains to be
liquidated, the applicable statute of limitations has run, and the prospects of collecting by
offset are too remote.
(c) Death of debtor. The debtor is determined to be deceased and the Government has no
prospect of collection from his/her estate.
(d) Cost will exceed recovery. The cost of further collection effort is likely to exceed the
amount recoverable.
(e) Claim legally without merit. Collection action should be terminated on a claim
whenever it is determined that the claim is legally without merit.
(f) Claim cannot be substantiated by evidence. VA will terminate collection action on
once asserted claims because of lack of evidence or unavailability of witnesses only in
cases where efforts to induce voluntary payment are unsuccessful.
(g) Discharge in bankruptcy. Generally, VA shall terminate collection activity on a debt
that has been discharged in bankruptcy, regardless of the amount. VA may continue
collection activity, subject to the provisions of the Bankruptcy Code, for any payments
provided under a plan of reorganization. Offset and recoupment rights may survive
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
the discharge of the debtor in bankruptcy and, under some circumstances, claims also
may survive the discharge.
(h) Before terminating collection activity, VA should have pursued all appropriate
means of collection and determined, based upon the results of the collection activity,
that the debt is uncollectible. Termination of collection activity ceases active collection
of the debt. The termination of collection activity does not preclude VA from
retaining a record of the account for purposes of:
(1) Selling the debt, if the Secretary of the Treasury determines that such sale is in the
best interests of the United States;
(2) Pursuing collection at a subsequent date in the event there is a change in the debtor's
status or a new collection tool becomes available;
(3) Offsetting against future income or assets not available at the time of termination of
collection activity; or
(4) Screening future applicants for prior indebtedness.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987; 69 FR 62188, Oct.
25, 2004]
Sections 1.930 to 1.937 issued under 72 Stat. 1114; 38 U.S.C. 501.
§ 1.943 Exception to termination.
When a significant enforcement policy is involved, or recovery of a judgment is a
prerequisite to the imposition of administrative sanctions, VA may refer debts for
litigation even though termination of collection activity may otherwise be appropriate.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42111, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.944 Discharge of indebtedness; reporting requirements.
(a) Before discharging a delinquent debt (also referred to as a close out of the debt), VA
shall take all appropriate steps to collect the debt in accordance with 31 U.S.C. 3711(g),
including, as applicable, administrative offset, tax refund offset, Federal salary offset,
referral to Treasury or Treasury-designated debt collection centers or private collection
contractors, credit bureau reporting, wage garnishment, litigation, and foreclosure.
Discharge of indebtedness is distinct from termination or suspension of collection
activity under §§ 1.940 through 1.943 and is governed by the Internal Revenue Code
(see 26 U.S.C. 6050P). When collection action on a debt is suspended or terminated,
the debt remains delinquent and further collection action may be pursued at a later date
in accordance with the standards set forth in §§ 1.900 through 1.953. When VA
discharges a debt in full or in part, further collection action is prohibited. Therefore, VA
should make the determination that collection action is no longer warranted before
discharging a debt. Before discharging a debt, VA must terminate debt collection
action.
(b) Upon discharge of an indebtedness, VA must report the discharge to the Internal
Revenue Service (IRS) in accordance with the requirements of 26 U.S.C. 6050P and 26
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
CFR 1.6050P-1. VA may request Treasury or Treasury-designated debt collection
centers to file such a discharge report to the IRS on VA's behalf.
(c) When discharging a debt, VA must request that any liens of record securing the debt
be released.
(d) 31 U.S.C. 3711(i)(2) requires agencies to sell a delinquent nontax debt upon
termination of collection action if the Secretary of the Treasury determines such a sale
is in the best interests of the United States. Since the discharge of a debt precludes any
further collection action (including the sale of a delinquent debt), VA may not
discharge a debt until the requirements of § 3711(i)(2) have been met.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
[52 FR 42111, Nov. 3, 1987; 69 FR 62188, Oct. 25, 2004]
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
REFERRALS TO GAO, DEPARTMENT OF JUSTICE, OR IRS
§ 1.950 Prompt referral.
§ 1.951 Claims Collection Litigation Report (CCLR).
§ 1.952 Preservation of evidence.
§ 1.953 Minimum amount of referrals to the Department of Justice.
§ 1.954 [Removed].
§ 1.950 Prompt referral.
(a) VA shall promptly refer debts to Department of Justice (DOJ) for litigation where
aggressive collection activity has been taken in accordance with §§1.900 through 1.953,
and such debts cannot be compromised, or on which collection activity cannot be
suspended or terminated, in accordance with §1.930 through 1.936 and §1.940
through 1.944. Debts for which the principal amount is over $1,000,000, or such other
amount as the Attorney General may direct, exclusive of interest and other late payment
charges, shall be referred to the Civil Division or other division responsible for
litigating such debts at DOJ. Debts for which the principal amount is $1,000,000, or
less, or such other amount as the Attorney General may direct, exclusive of interest or
penalties, shall be referred to DOJ's Nationwide Central Intake Facility as required by
the Claims Collection Litigation Report (CCLR) instructions. Debts should be referred
as early as possible, consistent with aggressive agency collection activity and the
observance of the standards contained in §1.900 through 1.953, and, in any event, well
within the period for initiating timely lawsuits against the debtors. VA shall make every
effort to refer delinquent debts to DOJ for litigation within 1 year of the date such debts
last became delinquent. In the case of guaranteed or insured loans, VA should make
every effort to refer these delinquent debts to DOJ for litigation within 1 year from the
date the loan was presented to VA for payment or reinsurance.
(b) DOJ has exclusive jurisdiction over the debts referred to it pursuant to this section.
VA shall immediately terminate the use of any administrative collection activities to
collect a debt at the time of the referral of that debt to DOJ. VA should advise DOJ of
the collection activities that have been utilized to date, and their result. VA shall
refrain from having any contact with the debtor and shall direct all debtor inquiries
concerning the debt to DOJ. VA shall immediately notify DOJ of any payments
credited to the debtor's account after referral of a debt under this section. DOJ shall
notify VA, in a timely manner, of any payments it receives from the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
Sections 1.950 to 1.954 appear at 52 FR 42111, 42112, Nov. 3, 1987.
[Revised 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.951 Claims Collection Litigation Report (CCLR).
(a) Unless excepted by the Department of Justice (DOJ), VA shall complete the CCLR,
accompanied by a signed Certificate of Indebtedness, to refer all administratively
uncollectible claims to DOJ for litigation. VA shall complete all of the sections of the
CCLR appropriate to each claim as required by the CCLR instructions and furnish
such other information as may be required in specific cases.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) VA shall indicate clearly on the CCLR the actions it wishes DOJ to take with
respect to the referred claim.
(c) VA shall also use the CCLR to refer claims to DOJ to obtain approval of any
proposals to compromise the claims or to suspend or terminate agency collection
activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
Sections 1.950 to 1.954 appear at 52 FR 42111, 42112, Nov. 3, 1987.
[Revised 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.952 Preservation of evidence.
VA must take care to preserve all files and records that may be needed by the
Department of Justice (DOJ) to prove its claims in court. VA ordinarily should include
certified copies of the documents that form the basis for the claim when referring such
claims to DOJ for litigation. VA shall provide originals of such documents immediately
upon request by DOJ.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
Sections 1.950 to 1.954 appear at 52 FR 42111, 42112, Nov. 3, 1987.
[Revised 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.953 Minimum amount of referrals to the Department of Justice.
(a) Except as otherwise provided in paragraphs (b) and (c) of this section, VA shall not
refer for litigation claims of less than $2,500, exclusive of interest, penalties, and
administrative costs, or such other minimum amount as the Attorney General shall from
time to time prescribe. The Department of Justice (DOJ) shall promptly notify
referring agencies if the Attorney General changes this minimum amount.
(b) VA shall not refer claims of less than the minimum amount prescribed by the
Attorney General unless:
(1) Litigation to collect such smaller claims is important to ensure compliance with
VA's policies or programs;
(2) The claim is being referred solely for the purpose of securing a judgment against the
debtor, which will be filed as a lien against the debtor's property pursuant to 28 U.S.C.
3201 and returned to VA for enforcement; or
(3) The debtor has the clear ability to pay the claim and the Government effectively can
enforce payment, with due regard for the exemptions available to the debtor under State
and Federal law and the judicial remedies available to the Government.
(c) VA should consult with the Financial Litigation Staff of the Executive Office for
United States Attorneys, in DOJ, prior to referring claims valued at less than the
minimum amount.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501).
Sections 1.950 to 1.954 appear at 52 FR 42111, 42112, Nov. 3, 1987.
[Revised 69 FR 62188, Oct. 25, 2004]
(31 U.S.C. 3711)
§ 1.954 [Removed].
[52 FR 42111, 42112, Nov. 3, 1987; removed 69 FR 62188, Oct. 25, 2004]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Sections 1.950 to 1.954 issued under 72 Stat. 1114; 38 U.S.C. 501.
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
REGIONAL OFFICE COMMITTEES ON WAIVERS AND COMPROMISES
§ 1.955 Regional office Committees on Waivers and Compromises.
§ 1.956 Jurisdiction.
§ 1.957 Committee authority.
§ 1.958 Finality of decisions.
§ 1.959 Records and certificates.
§ 1.960 Legal and technical assistance.
§ 1.961 Releases.
§ 1.962 Waiver of overpayments.
§ 1.963 Waiver; other than loan guaranty.
§ 1.963a Waiver; erroneous payment of pay and allowances.
§ 1.964 Waiver; loan guaranty.
§ 1.965 Application of standard.
§ 1.966 Scope of waiver decisions.
§ 1.967 Refunds.
§ 1.968 [Reserved]
§ 1.969 Revision of waiver decisions.
§ 1.970 Standards for compromise.
§ 1.955 Regional office Committees on Waivers and Compromises.
(a) Delegation of authority and establishment. (1) Sections 1.955 et seq. are issued to
implement the authority for waiver consideration found in 38 U.S.C. 5302 and 5 U.S.C.
5584 and the compromise authority found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The
duties, delegations of authority, and all actions required of the Committees on Waivers
and Compromises are to be accomplished under the direction of, and authority vested in,
the Director of the regional office. Delegations of authority and limitations for waiver
actions under 5 U.S.C. 5584 are set forth in § 1.963a of this part.
(2) There is established in each regional office, a Committee on Waivers and
Compromises to perform the duties and assume the responsibilities delegated by §§ 1.956
and 1.957. The term regional office, as used in § 1.955 et seq., includes VA Medical and
Regional Office Centers and VA Centers where such are established.
(b) Selection. The Director shall designate the employees to serve as Chairperson,
members, and alternates. Except upon specific authorization of the Under Secretary for
Benefits, when workload warrants a full-time committee, such designation will be
part-time additional duty upon call of the Chairperson.
(c) Control and staff. The administrative control of each Committee on Waivers and
Compromises is the responsibility of the station's Fiscal Officer. However, the station
Director has the authority to reassign the administrative control function to another
station activity, rather than the Fiscal Officer, whenever the Director determines that
such reassignment is appropriate. The quality control of the professional and clerical
staff of the Committee is the responsibility of the Chairperson.
(d) Overall control. The Assistant Secretary for Management is delegated complete
management authority, including planning, policy formulation, control, coordination,
supervision, and evaluation of Committee operations.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(e) Committee composition. (1) The Committee shall consist of a Chairperson and
Alternate Chairperson and as many Committee members and alternate members as the
Director may appoint. Members and alternates shall be selected so that in each of the debt
claim areas (i.e., compensation, pension, education, insurance, loan guaranty, etc.) there
are members and alternates with special competence and familiarity with the program
area.
(2) When a claim is properly referred to the Committee for either waiver consideration or
the consideration of a compromise offer, the Chairperson shall designate a panel from the
available Committee members to consider the waiver request or compromise offer. If the
debt for which the waiver request or compromise offer is made is $ 20,000 or less
(exclusive or interest and administrative costs), the Chairperson will assign one
Committee member as the panel. This one Committee member should have experience in
the program area where the debt is located. The single panel member's decision shall
stand as the decision of the Committee. If the debt for which the waiver request or
compromise offer is made is more than $ 20,000 (exclusive of interest and administrative
costs), the Chairperson shall assign two Committee members. One of the two members
should be knowledgeable in the program area where the debt arose. If the two member
panel cannot reach a unanimous decision, the Chairperson shall assign a third member of
the Committee to the panel, or assign the case to three new members, and the majority
vote shall determine the Committee decision.
(3) The assignment of a one or two member panel as described in paragraph (e)(2) of this
section is applicable if the debtor files a Notice of Disagreement with a Committee
decision to deny waiver. That is, if the Notice of Disagreement is filed with a decision by
a one member panel to deny waiver of collection of a debt of $ 20,000 or less, then the
Notice of Disagreement should also be assigned to one panel member. Likewise, a Notice
of Disagreement filed with a decision by a two or three member panel to deny waiver of
collection of a debt of more than $ 20,000 should also be assigned to a Committee panel
of two members (three if these two members cannot agree). However, a Chairperson
must assign the Notice of Disagreement to a different one, two, or three member panel
than the panel that made the original Committee decision that is now the subject of the
Notice of Disagreement.
[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54 FR 40871,
Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53275, 53276, Oct. 13, 1995; 69 FR
62188, Oct. 25, 2004]
(5 U.S.C. 5584, 31 U.S.C. 3771, 38 U.S.C. 3720(a), 5302)
§ 1.956 Jurisdiction.
(a) The regional office Committees are authorized, except as to determinations under §
2.6(e)(4)(i) of this chapter where applicable, to consider and determine as limited in §§
1.955 et seq., settlement, compromise and/or waiver concerning the following debts and
overpayments:
(1) Arising out of operations of the Veterans Benefits Administration:
(i) Overpayment or erroneous payments of pension, compensation, dependency and
indemnity compensation, burial allowances, plot allowance, subsistence allowance,
education (includes debts from work study and education loan defaults as well as from
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
other overpayments of educational assistance benefits) or insurance benefits, clothing
allowance and automobile or other conveyance and adaptive equipment allowances.
(ii) Debts arising out of the loan program under 38 U.S.C. ch. 37 after liquidation of
security, if any.
(iii) Such other debts as may be specifically designated by the Under Secretary for
Benefits.
(2) Arising out of operations of the Veterans Health Administration:
(i) Debts resulting from services furnished in error (§ 17.101(a) of this chapter).
(ii) Debts resulting from services furnished in a medical emergency (§ 17.101(b) of this
chapter).
(iii) Other claims arising in connection with transactions of the Veterans Health
Administration (§ 17.103(c) of this chapter).
(iv) Fiscal officers at VA medical facilities are authorized to waive veterans' debts
arising from medical care copayments (§ 17.105(c) of this chapter).
(3) Claims for erroneous payments of pay and allowances, and erroneous payments of
travel, transportation, and relocation expenses and allowances, made to or on behalf of
employees (5 U.S.C. 5584).
(b) The Under Secretary for Benefits may, at his or her discretion, assume original
jurisdiction and establish an ad hoc Board to determine a particular issue arising within
this section.
[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979; 60 FR 53275,
53276, Oct. 13, 1995; 69 FR 62188, Oct. 25, 2004]
(38 U.S.C. 501).
§ 1.957 Committee authority.
(a) Regional office committee. On matters covered in § 1.956, the regional office
Committee is authorized to determine the following issues:
(1) Waivers. A decision may be rendered to grant or deny waiver of collection of a debt
in the following debt categories:
(i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may consider waiver of the
indebtedness of a veteran or spouse resulting from: (A) The payment of a claim under the
guaranty or insurance of loans, (B) the liquidation of direct loans, (C) the liquidation of
loans acquired under § 36.4318, and (D) the liquidation of vendee accounts. The phrase
veteran or spouse includes a veteran-borrower, veteran-transferee, a veteran-purchaser on
a vendee account, a former spouse or surviving spouse of a veteran.
(ii) Other than loan guaranty program. (38 U.S.C. 5302(a))
(iii) Services erroneously furnished (§ 17.101(a)).
(iv) [Removed. See 60 FR 53275, 53276, Oct. 13, 1995.]
(2) Compromises -- (i) Loan program debts (38 U.S.C. 3720(a)). Accept or reject a
compromise offer irrespective of the amount of the debt (loan program matters under 38
U.S.C. chapter 37 are unlimited as to amount).
(ii) Other than loan program debts (31 U.S.C. 3711).
(A) Accept or reject a compromise offer on a debt which exceeds $ 1,000 but which is
not over $ 100,000 (both amounts exclusive of interest and other late payment charges).
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(B) Accept or reject a compromise offer on a debt of a $ 1,000 or less, exclusive of
interest and other late payment charges, which is not disposed of by the Chief, Fiscal
activity, pursuant to paragraph (b) of this section.
(C) Reject a compromise offer on a debt which exceeds $ 100,000, exclusive of interest
and other late payment charges.
(D) Recommend approval of a compromise offer on a debt which exceeds $ 100,000,
exclusive of interest and other late payment charges. The authority to accept a
compromise offer on such a debt rests solely within the jurisdiction of the Department of
Justice. The Committee should evaluate a compromise offer on a debt in excess of $
100,000, using the factors set forth in §§ 1.930 through 1.938. If the Committee believes
that the compromise offer is advantageous to the government, then the Committee
members shall so state this conclusion in a written memorandum of recommendation of
approval to the Chairperson. This recommendation, along with a Claims Collection
Litigation Report (CCLR) completed in accordance with § 1.951, will be referred to VA
Central Office, Office of Financial Management (047G7), for submission to the
Department of Justice for final approval.
(Authority: 31 U.S.C. 3711)
(3) [Removed. See 69 FR 62188, Oct. 25, 2004.]
(b) Chief of Fiscal activity. The Chief of the Fiscal activity at both VBA and VHA
offices has the authority, as to debts within his/her jurisdiction, to:
(1) On other than loan program debts under 38 U.S.C. chapter 37, accept compromise
offers of 50% or more of a total debt not in excess of $ 1,000, exclusive of interest and
other late payment charges, regardless of whether or not there has been a prior denial of
waiver.
(2) On other than loan program debts under 38 U.S.C. chapter 37, reject any offer of
compromise of a total debt not in excess of $ 1,000, exclusive of interest and other late
payment charges, regardless of whether or not there has been a prior denial of waiver.
(3) On other than loan guaranty program debts under 38 U.S.C. chapter 37, reject any
offer of compromise of a total debt not in excess of $ 1,000, exclusive of interest,
regardless of whether or not there has been a prior denial of waiver.
[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985; 52 FR 42112,
Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53275, 53276, Oct. 13, 1995; 69 FR
62188, Oct. 25, 2004]
(31 U.S.C. 3711 and 38 U.S.C. 3720(a))
vii
§ 1.958 Finality of decisions.
Discussion and Analysis in the Veterans Benefits Manual
A decision by the regional office Committee, operating within the scope of its authority,
denying waiver of all or part of a debt arising out of participation in a VA benefit or
home loan program, is subject to appeal in accordance with 38 CFR parts 19 and 20. A
denial of waiver of an erroneous payment of pay and allowances is subject to appeal in
accordance with Sec. 1.963a(a). There is no right of appeal from a decision rejecting
a compromise offer.
(Authority: 38 U.S.C. 501 and 7104).
[44 FR 59906, Oct. 17, 1979; 69 FR 62188, Oct. 25, 2004]
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§ 1.959 Records and certificates.
The Chairperson of the Committee shall execute or certify any documents pertaining to
its proceedings. He/she will be responsible for maintaining needed records of the
transactions of the Committee and preparation of any administrative or other reports
which may be required.
[44 FR 59906, Oct. 17, 1979]
(38 U.S.C. 501)
§ 1.960 Legal and technical assistance.
Legal questions involving a determination under § 2.6(e)(4) of this chapter will be
referred to the Regional Counsel for action in accordance with delegations of the General
Counsel, unless there is an existence a General Counsel's opinion or an approved
Regional Counsel's opinion dispositive of the controlling legal principle. As to matters
not controlled by § 2.6(e)(4) of this chapter, the Chairperson of the regional office
Committee or at his/her instance, a member, may seek and obtain advice from the
Regional Counsel on legal matters within his/her jurisdiction and from other division
chiefs in their areas of responsibility, on any matter properly before the Committee.
Guidance may also be requested from the Central Office staff.
[44 FR 59906, Oct. 17, 1979; 61 FR 7215, 7216, Feb. 27, 1996]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, which substituted
"Regional Counsel" for "District Counsel" in this section, became effective Oct. 1, 1995.]
§ 1.961 Releases.
On matters within its jurisdiction, the Committee may authorize the release of any right,
title, claim, lien or demand, however acquired, against any person obligated on a loan
guaranteed, insured, or made by the Department of Veterans Affairs under the provisions
of 38 U.S.C. ch. 37, or on an acquired loan, or on a vendee account.
[39 FR 26400, July 19, 1974]
38 U.S.C. 3720(a)(4) and 5302; 5 U.S.C. 5584.
§ 1.962 Waiver of overpayments.
There shall be no collection of an overpayment, or any interest thereon, which results
from participation in a benefit program administered under any law by VA when it is
determined by a regional office Committee on Waivers and Compromises that collection
would be against equity and good conscience. For the purpose of this regulation, the term
overpayment refers only to those benefit payments made to a designated living payee or
beneficiary in excess of the amount due or to which such payee or beneficiary is entitled.
The death of an indebted payee, either prior to a request for waiver of the indebtedness or
during Committee consideration of the waiver request, shall not preclude waiver
consideration. There shall be no waiver consideration of an indebtedness that results from
the receipt of a benefit payment by a non-payee who has no claim or entitlement to such
payment.
(a) Waiver consideration is applicable in an indebtedness resulting from work study and
education loan default, as well as indebtedness of a veteran-borrower, veteran transferee,
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or indebted spouse of either, arising out of participation in the loan program administered
under 38 U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness which is
the result of VA hospitalization, domiciliary care, or treatment of a veteran, either
furnished in error or on the basis of tentative eligibility.
(b) In any case where there is an indication of fraud or misrepresentation of a material
fact on the part of the debtor or any other party having an interest in the claim, action on a
request for waiver will be deferred pending appropriate disposition of the matter.
However, the existence of a prima facie case of fraud shall, nevertheless, entitle a
claimant to an opportunity to make a rebuttal with countervailing evidence; similiarly, the
misrepresentation must be more than non-willful or mere inadvertence. The Committee
may act on a request for waiver concerning such debts, after the Inspector General or the
Regional Counsel has determined that prosecution is not indicated, or the Department of
Justice has notified VA that the alleged fraud or misrepresentation does not warrant
action by that department, or the Department of Justice or the appropriate United States
Attorney, specifically authorized action on the request for waiver.
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 50 FR 38803,
Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987; 61 FR 7215, 7216, Feb. 27, 1996]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 7215, 7216, Feb. 27, 1996, which substituted
"Regional Counsel" for "District Counsel" in paragraph (b), became effective Oct. 1,
1995.]
viii
§ 1.963 Waiver; other than loan guaranty.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. Recovery of overpayments of any benefits made under laws administered by
the Department of Veterans Affairs shall be waived if recovery of the indebtedness from
the payee who received such benefits would be against equity and good conscience.
(b) Application. A request for waiver of an indebtedness under this section shall only be
considered:
(1) If made within 2 years following the date of a notice of indebtedness issued on or
before March 31, 1983, by the Department of Veterans Affairs to the debtor, or
(2) Except as otherwise provided herein, if made within 180 days following the date of a
notice of indebtedness issued on or after April 1, 1983, by the Department of Veterans
Affairs to the debtor. The 180 day period may be extended if the individual requesting
waiver demonstrated to the Chairperson of the Committee on Waivers and Compromises
that, as a result of an error by either the Department of Veterans Affairs or the postal
authorities, or due to other circumstances beyond the debtor's control, there was a delay
in such individual's receipt of the notification of indebtedness beyond the time
customarily required for mailing (including forwarding). If the requester does
substantiate that there was such a delay in the receipt of the notice of indebtedness, the
Chairperson shall direct that the 180 day period be computed from the date of the
requester's actual receipt of the notice of indebtedness.
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 48 FR 27400,
June 15, 1983; 50 FR 38803, Sept. 25, 1985]
(38 U.S.C. 5302(a))
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
§ 1.963a Waiver; erroneous payment of pay and allowances.
(a) The provisions applicable to VA (including refunds) concerning waiver actions
relating to erroneous payments to VA employees of pay and allowances, and travel,
transportation, and relocation expenses and allowances, are set forth in 5 U.S.C. 5584.
The members of Committees on Waivers and Compromises assigned to waiver actions
under § 1.955 of this part are delegated all authority granted the Secretary under 5
U.S.C. 5584 to deny waiver or to grant waiver in whole or in part of any debt regardless
of the amount of the indebtedness. Committee members also have exclusive authority
to consider and render a decision on the appeal of a waiver denial or the granting of a
partial waiver. However, the Chairperson of the Committee must assign the appeal to a
different Committee member or members than the member or members who made the
original decision that is now the subject of the appeal. The following are the only
provisions of §§ 1.955 through 1.970 of this part applicable to waiver actions
concerning erroneous payments of pay and allowances, and travel, transportation, and
relocation expenses and allowances, under 5 U.S.C. 5584: §§ 1.955(a) through (e)(2),
1.956(a)(introductory text) and (a)(3), 1.959, 1.960, 1.963a, and 1.967(c).
(b) Waiver may be granted under this section and 5 U.S.C. 5584 when collection would
be against equity and good conscience and not in the best interest of the United States.
Generally, these criteria will be met by a finding that the erroneous payment occurred
through administrative error and that there is no indication of fraud, misrepresentation,
fault, or lack of good faith on the part of the employee or other person having an
interest in obtaining a waiver of the claim, and waiver would not otherwise be
inequitable. Generally, waiver is precluded when an employee receives a significant
unexplained increase in pay or allowances, or otherwise knows, or reasonably should
know, that an erroneous payment has occurred, and fails to make inquiries or bring the
matter to the attention of the appropriate officials. Waiver under this standard will
depend upon the facts existing in each case.
(c) An application for waiver must be received within 3 years immediately following
the date on which the erroneous payment was discovered.
(Authority: 5 U.S.C. 5584; 38 U.S.C. 501).
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 48 FR 27400,
June 15, 1983; 52 FR 42113, Nov. 3, 1987; 60 FR 53275, 53276, Oct. 13, 1995; 69 FR
62188, Oct. 25, 2004]
ix
§ 1.964 Waiver; loan guaranty.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. Any indebtedness of a veteran or the indebtedness of the spouse shall be
waived only when the following factors are determined to exist:
(1) Following default there was a loss of the property which constituted security for the
loan guaranteed, insured or made under chapter 37 of title 38 United States Code;
(2) There is no indication of fraud, misrepresentation, or bad faith on the part of the
person or persons having an interest in obtaining the waiver; and
(3) Collection of such indebtedness would be against equity and good conscience.
(b) Spouse. The waiver of a veteran's indebtedness shall inure to the spouse of such
veteran insofar as concerns said indebtedness, unless the obligation of the spouse is
specifically excepted. However, the waiver of the indebtedness of the veteran's spouse
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
shall not inure to the benefit of the veteran unless specifically provided for in the waiver
decision.
(c) Surviving spouse or former spouse. A surviving spouse of a veteran or the former
spouse of a veteran may be granted a waiver of the indebtedness provided the
requirements of paragraph (a) of this section are met.
(d) Preservation of Government rights. In cases in which it is determined that waiver may
be granted, the action will take such form (covenant not to sue, or otherwise) as will
preserve the rights of the Government against obligors other than the veteran or the
spouse.
(e) Application. A request for waiver of an indebtedness under this section shall be made
within one year after the date on which the debtor receives, by Certified Mail-Return
Receipt Requested, written notice from VA of the indebtedness. If written notice of
indebtedness is sent by means other than Certified Mail-Return Receipt Requested, then
there is no time limit for filing a request for waiver of indebtedness under this section.
(Authority: 38 U.S.C. 5302(b))
(f) Exclusion. Except as otherwise provided in this section, the indebtedness of a
nonveteran obligor under the loan program is excluded from waiver.
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 57 FR 33875,
July 31, 1992; 58 FR 3840, Jan. 12, 1993]
(38 U.S.C. 5302 (b) and (c))
x
§ 1.965 Application of standard.
Discussion and Analysis in the Veterans Benefits Manual
(a) The standard "Equity and Good Conscience", will be applied when the facts and
circumstances in a particular case indicate a need for reasonableness and moderation in
the exercise of the Government's rights. The decision reached should not be unduly
favorable or adverse to either side. The phrase equity and good conscience means
arriving at a fair decision between the obligor and the Government. In making this
determination, consideration will be given to the following elements, which are not
intended to be all inclusive:
(1) Fault of debtor. Where actions of the debtor contribute to creation of the debt.
(2) Balancing of faults. Weighing fault of debtor against Department of Veterans Affairs
fault.
(3) Undue hardship. Whether collection would deprive debtor or family of basic
necessities.
(4) Defeat the purpose. Whether withholding of benefits or recovery would nullify the
objective for which benefits were intended.
(5) Unjust enrichment. Failure to make restitution would result in unfair gain to the
debtor.
(6) Changing position to one's detriment. Reliance on Department of Veterans Affairs
benefits results in relinquishment of a valuable right or incurrence of a legal obligation.
(b) In applying this single standard for all areas of indebtedness, the following elements
will be considered, any indication of which, if found, will preclude the granting of
waiver:
(1) Fraud or misrepresentation of a material fact (see § 1.962(b)).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) Bad faith. This term generally describes unfair or deceptive dealing by one who seeks
to gain thereby at another's expense. Thus, a debtor's conduct in connection with a debt
arising from participation in a VA benefits/services program exhibits bad faith if such
conduct, although not undertaken with actual fraudulent intent, is undertaken with intent
to seek an unfair advantage, with knowledge of the likely consequences, and results in a
loss to the government.
(3) [Removed. See 69 FR 62188, Oct. 25, 2004]
[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58 FR 7296, Feb.
5, 1993; 69 FR 62188, Oct. 25, 2004]
(38 U.S.C. 5302(c))
§ 1.966 Scope of waiver decisions.
(a) Decisions will be based on the evidence of record. A hearing may be held at the
request of the claimant or his/her representative. No expenses incurred by a claimant, his
representative, or any witness incident to a hearing will be paid by the Department of
Veterans Affairs.
(b) A regional office Committee may:
(1) Waive recovery as to certain persons and decline to waive as to other persons whose
claims are based on the same veteran's service.
(2) Waive or decline to waive recovery from specific benefits or sources, except that:
(i) There shall be no waiver of recovery out of insurance of an indebtedness secured
thereby; i.e., an insurance overpayment to an insured. However, recovery may be waived
of any or all of such indebtedness out of benefits other than insurance then or thereafter
payable to the insured.
(Authority: 38 U.S.C. 501, 5302).
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 48 FR 1056,
Jan. 10, 1983; 69 FR 62188, Oct. 25, 2004]
38 U.S.C. 3720(a)(4) and 5302; 5 U.S.C. 5584.
§ 1.967 Refunds.
(a) Except as provided in paragraph (c) of this section, any portion of an indebtedness
resulting from participation in benefits programs administered by the Department of
Veterans Affairs which has been recovered by the U.S. Government from the debtor may
be considered for waiver, provided the debtor requests waiver in accordance with the
time limits of § 1.963(b). If collection of an indebtness is waived as to the debtor, such
portions of the indebtedness previously collected by the Department of Veterans Affairs
will be refunded. In the event that waiver of collection is granted for either an education,
loan guaranty, or direct loan debt, there will be a reduction in the debtor's entitlement to
future benefits in the program in which the debt originated.
(b) The Department of Veterans Affairs may not waive collection of the indebtedness of
an educational institution found liable under 38 U.S.C. 3685. Waiver of collection of
educational benefit overpayments from all or a portion of the eligible persons attending
an educational institution which has been found liable under 38 U.S.C. 3685 shall not
relieve the institution of its assessed liability. (See
38 CFR 21.4009(f)).
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(c) The regulatory provisions concerning refunds of indebtedness collected by the
Department of Veterans Affairs arising from erroneous payments of pay and allowances
and travel, transportation, and relocation expenses and allowances are set forth in 4 CFR
Parts 91 and 92.
(d) Refund of the entire amount collected may not be made when only a part of the debt
is waived or when collection of the balance of a loan guaranty indebtedness by the
Department of Veterans Affairs from obligors, other than a husband or wife of the person
requesting waiver, will be adversely affected. Only where the amount collected exceeds
the balance of the indebtedness still in existence will a refund be made in the amount of
the difference between the two. Otherwise, refunds will be made in accordance with
paragraph (a) of this section.
[48 FR 1056, Jan. 10, 1983; 60 FR 53275, 53276, Oct. 13, 1995]
§ 1.968 [Reserved]
§ 1.969 Revision of waiver decisions.
(a) Jurisdiction. A decision involving waiver may be reversed or modified on the basis of
new and material evidence, fraud, a change in law or interpretation of law specifically
stated in a Department of Veterans Affairs issue, or clear and unmistakable error shown
by the evidence in file at the time the prior decision was rendered by the same or any
other regional office Committee.
(b) Finality of decisions. Except as provided in paragraph (a) of this section, a decision
involving waiver rendered by the Committee having jurisdiction is final, subject to the
provisions of:
(1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to finality of decisions;
(2) Section 3.105 (a) and (b) of this chapter as to revision of decisions, except that the
Central Office staff may postaudit or make an administrative review of any decision of a
regional office Committee;
(3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice of disagreement and the
right of appeal;
(4) Section 19.124 of this chapter as to the filing of administrative appeals and the time
limits for filing such appeals.
(c) Difference of opinion. Where reversal or amendment of a decision involving waiver is
authorized under § 3.105(b) of this chapter because of a difference of opinion, the
effective date of waiver will be governed by the principle contained in § 3.400(h) of this
chapter.
[44 FR 59907, Oct. 17, 1979]
(38 U.S.C. 501)
§ 1.970 Standards for compromise.
Decisions of the Committee respecting acceptance or rejection of a compromise offer
shall be in conformity with the standards in §§ 1.900 through 1.936. In loan guaranty
cases the offer of a veteran or other obligor to effect a compromise must relate to an
indebtedness established after the liquidation of the security, if any, and shall be reviewed
by the Committee. An offer to effect a compromise may be accepted if it is deemed
advantageous to the Government. A decision on an offer of compromise may be revised
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
or modified on the basis of any information which would warrant a change in the original
decision.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720).
[44 FR 59907, Oct. 17, 1979; 69 FR 62188, Oct. 25, 2004]
——————————
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SALARY OFFSET PROVISIONS
§ 1.980 Scope.
§ 1.981 Definitions.
§ 1.982 Salary offsets of debts involving benefits under the laws administered by VA.
§ 1.983 Notice requirements before salary offsets of debts not involving benefits
under the laws administered by VA.
§ 1.984 Request for a hearing.
§ 1.985 Form, notice of, and conduct of hearing.
§ 1.986 Result if employee fails to meet deadlines.
§ 1.987 Review by the hearing official or administrative law judge.
§ 1.988 Written decision following a hearing requested under § 1.984.
§ 1.989 Review of VA records related to the debt.
§ 1.990 Written agreement to repay debt as alternative to salary offset.
§ 1.991 Procedures for salary offset: when deductions may begin.
§ 1.992 Procedures for salary offset.
§ 1.993 Non-waiver of rights.
§ 1.994 Refunds.
§ 1.995 Requesting recover through centralized administrative offset.
§ 1.980 Scope.
(a)In accordance with 5 CFR part 550, subpart K, the provisions set forth in Sec. Sec.
1.980 through 1.995 implement VA's authority for the use of salary offset to satisfy
certain debts owed to VA.
(b) These regulations apply to offsets from the salaries of current employees of VA, or
any other agency, who owe debts to VA. Offsets by VA from salaries of current VA
employees who owe debts to other agencies shall be processed in accordance with
procedures set forth in 5 CFR part 550, subpart K.
(c) These regulations do not apply to debts or claims arising under the Internal Revenue
Code of 1954, as amended, the Social Security Act, the tariff laws of the United States, or
to any case where collection of a debt by salary offset is explicitly provided for (e.g.,
travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108) or
prohibited by another statute.
(d) These regulations do not preclude an employee from requesting waiver of an
overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any other similar provision of law,
or in any way questioning the amount or validity of a debt not involving benefits under
the laws administered by VA by submitting a subsequent claim to the General
Accounting Office in accordance with procedures prescribed by that office.
(e) These regulations do not apply to any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits program requiring
periodic deductions from pay if the amount to be recovered was accumulated over four
pay periods or less.
(f) These regulations do not apply to a routine intra-agency adjustment of pay that is
made to correct an overpayment of pay attributable to clerical or administrative errors
or delays in processing pay documents, if the overpayment occurred within the four
pay periods preceding the adjustment and, at the time of such adjustment, or as soon
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
thereafter as practicable, the individual is provided written notice of the nature and
amount of the adjustment and a point of contact for contesting such adjustment.
(g) These regulations do not apply to any adjustment to collect a debt amounting to $50
or less, if at the time of such adjustment, or as soon thereafter as practicable, the
individual is provided with written notice of the nature and amount of the adjustment
and a point of contact for contesting such adjustment.
(h) These regulations do not preclude the compromise, suspension, or termination of
collection action under the Federal Claims Collection Standards (FCCS) (31 CFR parts
900-904) and VA regulations 38 CFR 1.930 through 1.944.
(i) The procedures and requirements of these regulations do not apply to salary offset
used to recoup a Federal employee's debt where a judgment has been obtained against the
employee for the debt.
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54 FR 34980,
Aug. 23, 1989; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.981 Definitions.
(a) Agency means:
(1) An executive agency as defined in 5 U.S.C. 105, including the U.S. Postal Service,
and the U.S. Postal Rate Commission, and
(2) A military department as defined in 5 U.S.C. 102.
(3) An agency or court of the judicial branch, including a court as defined in 28 U.S.C.
610, the District Court for the Northern Mariana Islands, and the Judicial Panel on
Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate and the U.S. House of
Representatives; and
(5) Other independent establishments that are entities of the Federal Government.
(b) Debt means an amount owed to the United States from sources which include loans
insured or guaranteed by the United States and all other amounts due the United States
from fees, leases, rents, royalties, services, sales of real or personal property,
overpayments, penalties, damages, interest, fines and forfeitures (except those arising
under the Uniform Code of Military Justice), and all other similar sources.
(c) Disposable pay means that part of current basic pay, special pay, incentive pay, retired
pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized
pay remaining after the deduction of any amount required by law to be withheld.
Excluded from this definition are deductions described in 5 CFR 581.105(b) through (f).
(d) Employee means a current employee of VA or other Federal agency including a
current member of the Armed Forces or a Reserve of the Armed Forces (Reserves).
(e) Salary offset means an attempt to collect a debt under 5 U.S.C. 5514 by deduction(s)
at one or more officially estabilished pay intervals from the current pay account of an
employee without his or her consent.
(f) Waiver means the cancellation, remission, forgiveness, or non-recovery of a debt
owed by an employee to VA or another Federal agency as permitted or required by 5
U.S.C. 5584 or 38 U.S.C. 5302, or other similar statutes.
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(g) Extreme hardship to an employee means an employee's inability to provide himself or
herself and his or her dependents with the necessities of life such as food, housing,
clothing, transportation, and medical care.
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
(5 U.S.C. 5514)
§ 1.982 Salary offsets of debts involving benefits under the laws administered by
VA.
(a) VA will not collect a debt involving benefits under the laws administered by VA by
salary offset unless the Secretary or appropriate designee first provides the employee
with a minimum of 30 calendar days written notice.
(b) If the employee has not previously appealed the amount or existence of the debt
under 38 CFR parts 19 and 20 and the time for pursuing such an appeal has not expired
(§ 20.302), the Secretary or appropriate designee will provide the employee with
written notice of the debt. The written notice will state that the employee may appeal
the amount and existence of the debt in accordance with the procedures set forth in 38
CFR parts 19 and 20 and will contain the determination and information required by §
1.983(b)(1) through (5), (7), (9), (10), and (12) though (14). The notice will also state
that the employee may request a hearing on the offset schedule under the procedures
set forth in § 1.984 and such a request will stay the commencement of salary offset.
(c) If the employee previously appealed the amount or existence of the debt and the
Board of Veterans Appeals decided the appeal on the merits or if the employee failed to
pursue an appeal within the time provided by regulations, the Secretary or designee shall
provide the employee with written notice prior to collecting the debt by salary offset. The
notice will state:
(1) The determinations and information required by § 1.983(b)(1)-(5), (7), and (12)-(14);
(2) That the employee's appeal of the existence or amount of the debt was determined on
the merits or that the employee failed to pursue an appeal within the time provided, and
VA's decision is final except as otherwise provided in agency regulations;
(3) That the employee may request a waiver of the debt pursuant to 38 CFR 1.911(c)(2)
subject to the time limits of 38 U.S.C. 5302;
(4) That the employee may request an oral or paper hearing on the offset schedule and
receive a decision within 60 days of such request under the procedures and time limit set
forth in § 1.984 and that such a request will stay the commencement of salary offset.
(d) If the employee has appealed the existence or amount of the debt and the Board of
Veterans Appeals has not decided the appeal on the merits, collection of the debt by
salary offset will be suspended until the appeal is decided or the employee ceases to
pursue the appeal.
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.983 Notice requirements before salary offsets of debts not involving benefits
under the laws administered by VA.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) For a debt not involving benefits under the laws administered by VA, the Secretary or
designee will review the records relating to the debt to assure that it is owed prior to
providing the employee with a notice of the debt.
(b) Except as provided in § 1.980(e), salary offset of debts not involving benefits under
the laws administered by VA will not be made unless the Secretary or designee first
provides the employee with a minimum of 30 calendar days written notice. This notice
will state:
(1) The Secretary or designee's determination that a debt is owed;
(2) The amount of the debt owed and the facts giving rise to the debt;
(3) The Secretary or designee's intention to collect the debt by means of deduction from
the employee's current disposable pay account until the debt and all accumulated interest
and associated costs are paid in full;
(4) The amount, frequency, approximate beginning date, and duration of the intended
deductions;
(5) An explanation of VA's requirements concerning interest, administrative costs, and
penalties;
(6) The employee's right to inspect and copy VA records relating to the debt or, if the
employee or his or her representative cannot personally inspect the records, to request
and receive a copy of such records;
(7) The employee's right to enter into a written agreement with the Secretary or designee
for a repayment schedule differing from that proposed by the Secretary or designee, so
long as the terms of the repayment schedule proposed by the employee are agreeable to
the Secretary or designee;
(8) The VA employee's right to request an oral or paper hearing on the Secretary or
appropriate designee's determination of the existence or amount of the debt, or the
percentage of disposable pay to be deducted each pay period, so long as a request is
filed by the employee as prescribed by the Secretary. A VA Board of Contract Appeals
Administrative Judge or Hearing Examiner shall conduct such a hearing for any VA
employee. A VA Board of Contract Appeals Administrative Judge or Hearing
Examiner, or any other VA hearing official, may also conduct an oral or paper hearing
at the request of a non-VA employee on the determination by an appropriately
designated official of the employing agency of the existence or amount of the debt, or
the percentage of disposable pay to be deducted each pay period, so long as a hearing
request is filed by the non-VA employee as prescribed by the employing agency;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a request for a hearing (oral or paper) will stay the
commencement of salary offset;
(11) That a final decision after the hearing will be issued at the earliest practical date, but
no later than 60 calendar days after the filing of the request for the hearing, unless the
employee requests and the hearing officer grants a delay in the proceedings;
(12) That any knowingly false or frivolous statements, representations, or evidence may
subject the employee to:
(i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR part 752, or any
other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or any other applicable
statutory authority; or
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or any other applicable
statutory authority.
(13) The employee's right, if applicable, to request waiver under 5 U.S.C. 5584 and 38
CFR 1.963a and any other rights and remedies available to the employee under statutes
or regulations governing the program for which the collection is being made; and
(14) Unless there are applicable contractual or statutory provisions to the contrary, that
amounts paid on or deducted for the debt which are later waived or found not owed to the
United States will be promptly refunded to the employee.
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.984 Request for a hearing.
(a) Except as provided in paragraph (b) of this section and in § 1.982, an employee
wishing a hearing on the existence or amount of the debt or on the proposed offset
schedule must send such a request to the office which sent the notice of the debt. The
employee must also specify whether an oral or paper hearing is requested. If an oral
hearing is requested, the request should explain why the matter cannot be resolved by
review of the documentary evidence. The request must be received by the office which
sent the notice of the debt not later than 30 calendar days from the date of the notice.
(b) If the employee files a request for a hearing after the expiration of the 30-day period
provided for in paragraph (a) of this section, VA may accept the request if the employee
shows that the delay was because of circumstances beyond his or her control or because
of failure to receive the written notice of the filing deadline (unless the employee has
actual notice of the filing deadline).
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.985 Form, notice of, and conduct of hearing.
(a) After an employee requests a hearing, the hearing official or administrative law judge
shall notify the employee of the form of the hearing to be provided. If the hearing will be
oral, the notice shall set forth the date, time, and location for the hearing. If the hearing
will be paper, the employee shall be notified that he or she should submit his or her
position and arguments in writing to the hearing official or administrative law judge by a
specified date after which the record shall be closed. This date shall give the employee
reasonable time to submit this information.
(b) An employee who requests an oral hearing shall be provided an oral hearing if the
hearing official or administrative law judge determines that the matter cannot be resolved
by review of documentary evidence, for example, when an issue of credibility or veracity
is involved. If a determination is made to provide an oral hearing, the hearing official or
administrative law judge may offer the employee the opportunity for a hearing by
telephone conference call. If this offer is rejected or if the hearing official or
administrative law judge declines to offer a telephone conference call hearing, the
employee shall be provided an oral hearing permitting the personal appearance of the
employee, his or her personal representative, and witnesses. A record or transcript of
every oral hearing shall be made. Witnesses shall testify under oath or affirmation. VA
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
shall not be responsible for the payment of any expenses incident to attendance at the
hearing which are incurred by either the employee, his or her representative or Counsel,
or witnesses.
(c) In all other cases where an employee requests a hearing, a paper hearing shall be
provided. A paper hearing shall consist of a review of the written evidence of record by
the administrative law judge or hearing official.
(d) In any hearing under this section, the administrative law judge or hearing official may
exclude from consideration evidence or testimony which is irrelevant, immaterial, or
unduly repetitious.
52 FR 1905, Jan. 16, 1987.
(5 U.S.C. 5514).
§ 1.986 Result if employee fails to meet deadlines.
An employee waives the right to a hearing, and will have his or her disposable pay offset
in accordance with the offset schedule, if the employee:
(a) Fails to file a request for a hearing as prescribed in §§ 1.982, 1.984, or 19.1 through
19.200, whichever is applicable, unless such failure is excused as provided in § 1.984(b);
or
(b) Fails to appear at an oral hearing of which he or she had been notified unless the
administrative law judge or hearing official determines that failure to appear was due to
circumstances beyond the employee's control.
52 FR 1905, Jan. 16, 1987.
(5 U.S.C. 5514)
§ 1.987 Review by the hearing official or administrative law judge.
(a) The hearing official or administrative law judge shall uphold VA's determination of
the existence and amount of the debt unless determined to be erroneous by a
preponderance of the evidence.
(b) The hearing official or administrative law judge shall uphold VA's offset schedule
unless the schedule would result in extreme hardship to the employee.
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
(5 U.S.C. 5514)
§ 1.988 Written decision following a hearing requested under § 1.984.
(a) The hearing official or administrative law judge must issue a written decision not later
than 60 days after the employee files a request for the hearing.
(b) Written decisions provided after a hearing requested under § 1.984 will include:
(1) A statement of the facts presented to support the nature and origin of the alleged debt;
(2) The hearing official or administrative law judge's analysis, findings and conclusions
concerning as applicable:
(i) The employee's or VA's grounds;
(ii) The amount and validity of the alleged debt; and
(iii) The repayment schedule.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) The decision in a case where a paper hearing was provided shall be based upon a
review of the written record. The decision in a case where an oral hearing was provided
shall be based upon the hearing and the written record.
52 FR 1905, Jan. 16, 1987.
(5 U.S.C. 5514)
§ 1.989 Review of VA records related to the debt.
(a) Notification by employee. An employee who intends to inspect or copy VA records
related to the debt as permitted by a notice provided under § 1.983 must send a letter to
the office which sent the notice of the debt stating his or her intention. The letter must be
received by that office within 30 calendar days of the date of the notice.
(b) VA response. In response to timely notice submitted by the debtor as described in
paragraph (a) of this section, VA will notify the employee of the location and time when
the employee may inspect and copy records related to the debt.
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.990 Written agreement to repay debt as alternative to salary offset.
(a) Notification by employee. The employee may propose, in response to a notice under §
1.983, a written agreement to repay the debt as an alternative to salary offset. Any
employee who wishes to do this must submit a proposed written agreement to repay the
debt which is received by the office which sent the notice of the debt within 30 calendar
days of the date of the notice.
(b) VA response. In response to timely notice by the debtor as described in paragraph (a)
of this section, VA will notify the employee whether the employee's proposed written
agreement for repayment is acceptable. It is within VA's discretion to accept a repayment
agreement instead of proceeding by offset. In making this determination, VA will balance
its interest in collecting the debt against the hardship to the employee. VA will accept a
repayment agreement instead of offset only if the employee is able to establish that offset
would result in extreme hardship.
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.991 Procedures for salary offset: when deductions may begin.
(a) Deductions to liquidate an employee's debt will be by the method and in the amount
stated in the notice to collect from the employee's current pay as modified by a written
decision issued under §§ 1.982 or Sec. 1.988, or parts 19 and 20 or by written
agreement between the employee and the VA under § 1.990.
(b) If the employee filed a request for a hearing as provided by § 1.984 before the
expiration of the period provided for in that section, deductions will not begin until after
the hearing official or administrative law judge has provided the employee with a hearing,
and has rendered a final written decision.
(c) If the employee failed to file a timely request for a hearing, deductions will begin on
the date specified in the notice of intention to offset, unless a hearing is granted pursuant
to § 1.984(b).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(d) If an employee retires, resigns, or his or her employment ends before collection of
the amount of the indebtedness is completed, the remaining indebtedness will be
collected according to procedures for administrative offset (see 5 CFR 831.1801
through 831.1808, 31 CFR 901.3, and 38 CFR 1.912).
[52 FR 1905, Jan. 16, 1987; 69 FR 62188, Oct. 25, 2004]
(5 U.S.C. 5514)
§ 1.992 Procedures for salary offset.
(a) Types of collection. A debt will be collected in a lump-sum or in installments.
Collection will be in a lump-sum unless the employee is financially unable to pay in one
lump-sum, or if the amount of the debt exceeds 15 percent of the employee's disposable
pay. In these cases, deduction will be by installments.
(b) Installment deductions. (1) A debt to be collected in installments will be deducted at
officially established pay intervals from an employee's current pay account unless the
employee and the Secretary agree to alternative arrangements for repayment. The
alternative arrangement must be in writing and signed by both the employee and
Secretary or designee.
(2) Installment deductions will be made over a period not greater than the anticipated
period of employment. The size and frequency of installment deductions will bear a
reasonable relation to the size of the debt and the employee's ability to pay. However, the
amount deducted for any period will not exceed 15 percent of the disposable pay from
which the deduction is made, unless the employee has agreed in writing to the deduction
of a greater amount. If possible, the installment payment will be sufficient in size and
frequency to liquidate the debt in three years. Installment payments of less than $ 25 per
pay period or $ 50 a month will be acceptable only in the most unusual circumstances.
(c) Imposition of interest, penalties, and administrative costs. Interest, penalties, and
administrative costs shall be charged in accordance with 31 CFR 901.9 and 38 CFR
1.915.
(Authority: 5 U.S.C. 5514; 38 U.S.C. 501).
[52 FR 1905, Jan. 16, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69 FR 62188,
Oct. 25, 2004]
§ 1.993 Non-waiver of rights.
So long as there are not statutory or contractual provisions to the contrary, an employee's
involuntary payment (of all or a portion of a debt) under these regulations will not be
interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514.
52 FR 1905, Jan. 16, 1987.
(5 U.S.C. 5514)
§ 1.994 Refunds.
VA will refund promptly to the appropriate individual amounts offset under these
regulations when:
(a) A debt is waived or otherwise found not owed the United States (unless expressly
prohibited by statute or regulation); or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) VA is directed by an administrative or judicial order to refund amounts deducted from
the employee's current pay.
52 FR 1905, Jan. 16, 1987.
(5 U.S.C. 5514)
§ 1.995 Requesting recover through centralized administrative offset.
(a) Under 31 U.S.C. 3716, VA and other creditor agencies must notify Treasury of all
debts over 180 days delinquent so that recovery of such debts may be made by
centralized administrative offset. This includes those debts that VA and other agencies
seek from the pay account of an employee of another Federal agency via salary offset.
Treasury and other disbursing officials will match payments, including Federal salary
payments, against these debts. Where a match occurs, and all the requirements for
offset have been met, the payment will be offset to satisfy the debt in whole or part.
(b) Prior to submitting a debt to Treasury for the purpose of collection by offset,
including salary offset, VA shall provide written certification to Treasury that:
(1) The debt is past due and legally enforceable in the amount submitted to Treasury
and that VA will ensure that any subsequent collections are credited to the debt and that
Treasury shall be notified of such;
(2) Except in the case of a judgment debt or as otherwise allowed by law, the debt is
referred to Treasury for offset within 10 years after VA's right of action accrues;
(3) VA has complied with the provisions of 31 U.S.C. 3716 and 38 CFR 1.912 and
1.912a including, but not limited to, those provisions requiring that VA provide the
debtor with applicable notices and opportunities for a review of the debt; and
(4) VA has complied with the provisions of 5 U.S.C. 5514 (salary offset) and 38 CFR
1.980 through 1.994 including, but not limited to, those provisions requiring that VA
provide the debtor with applicable notices and opportunities for a hearing.
(c) Specific procedures for notifying Treasury of debts for purposes of collection by
centralized administrative offset are contained in the 31 CFR 285.7. VA and other
creditor agencies may notify Treasury of debts that have been delinquent for 180 days
or less, including debts that VA and other creditor agencies seek to recover from the
pay of an employee via salary offset.
(Authority: 31 U.S.C. 3716; 38 U.S.C. 501).
[69 FR 62188, Oct. 25, 2004]
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
PART 2 -- DELEGATIONS OF AUTHORITY
§ 2.1 General provisions.
§ 2.2 Delegation of authority to employees to issue subpoenas, etc.
§ 2.3 Delegation of authority to employees to take affidavits, to administer oaths, etc.
§ 2.4 Delegation of authority to order paid advertising for use in recruitment.
§ 2.5 Delegation of authority to certify copies of documents, records, or papers in
Department of Veterans Affairs files.
§ 2.6 Secretary's delegations of authority to certain officials (38 U.S.C. 512).
§ 2.7 Delegation of authority to provide relief on account of administrative error.
§ 2.8 Delegation of authority to authorize allowances for Department of Veterans
Affairs employees who are notaries public.
§ 2.98 Delegation of authority to Directors of VA field facilities to determine whether
or not a school closing is based on Executive order of the President or due to an
emergency situation and to the Director, Vocational Rehabilitation and Education
Service, to review these decisions.
§ 2.100 Delegation of authority to the Under Secretary for Benefits or his or her
designee to enter into Memoranda of Agreement with authorized representatives of
Department of Defense or Department of Labor or both to implement programs
authorized by §§ 21.4800 through 21.4856.
§ 2.101 Delegation of authority to the Under Secretary for Benefits, and to
supervisory or adjudicative personnel within the jurisdiction of the Veterans Benefits
Administration designated by him or her, to make findings and decisions of the
Department of Veterans Affairs under the Service Members Occupational Conversion
and Training Act, and the applicable regulations, precedents and instructions, relating
to programs authorized by §§ 21.4800 through 21.4854.
Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 1729A, 5711; 44 U.S.C.
3702, and as noted in specific sections.
§ 2.1 General provisions.
xi
Discussion and Analysis in the Veterans Benefits Manual
In addition to the delegations of authority in this part, numerous delegations of authority
are set forth throughout this title.
(38 U.S.C. 512)
[43 FR 39365, Sept. 5, 1978, as amended at 49 FR 30692, Aug. 1, 1984; 54 FR 34980,
Aug. 23, 1989; 60 FR 40757, Aug. 10, 1995, as confirmed at 61 FR 68665, Dec. 30, 1996;
64 FR 47111, Aug. 30, 1999]
[EFFECTIVE DATE NOTE: 64 FR 47111, Aug. 30, 1999, added this section, effective
Aug. 30, 1999.]
xii
§ 2.2 Delegation of authority to employees to issue subpoenas, etc.
Discussion and Analysis in the Veterans Benefits Manual
(a) Authority to issue subpoenas. Employees occupying or acting in the positions
designated in paragraph (b) of this section shall have the power to issue subpoenas for
(by countersigning VA Form 2-4003) and compel the attendance of witnesses within a
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
radius of 100 miles from the place of hearing and to require the production of books,
papers, documents, and other evidence. Issuing officials shall use discretion when
exercising this power.
(b) Designated positions. The positions designated pursuant to paragraph (a) of this
section are: General Counsel, Deputy General Counsel, Chairman, Board of Veterans'
Appeals, Heads of Regional Offices and Centers having insurance or regional office
activities, Under Secretary for Health (for income matching programs), Director, Income
Verification Match Center (for income matching programs), and the Associate Director
for Operations, Income Verification Match Center (for income matching programs).
(c) Means of service. Subpoenas issued pursuant to this section may be served by
registered or certified mail, return receipt requested, addressed to the witness only.
Personal service by any VA employee or other authorized person may be made where
authorized in writing by the issuing official.
(d) Fees and mileage; district courts of the United States. Any person required by such
subpoena to attend as a witness shall be allowed and paid the same fees and mileage as
are paid witnesses in the district courts of the United States. In case of disobedience to
any such subpoena, the aid of any district court of the United States may be invoked in
requiring attendance and testimony of witnesses and the production of documentary
evidence, and such court within the jurisdiction in which the inquiry is carried on may, in
the case of contumacy or refusal to obey a subpoena issued to any officer, agent, or
employee of any corporation or to any other person, issue an order requiring such
corporation or other person to appear or to give evidence touching the matter in question,
and any failure to obey such order of the court may be punished by such court as a
contempt thereof.
[43 FR 39365, Sept. 5, 1978, as amended at 49 FR 30692, Aug. 1, 1984; 54 FR 34980,
Aug. 23, 1989; 60 FR 40757, Aug. 10, 1995, as confirmed at 61 FR 68665, Dec. 30, 1996;
redesignated at 64 FR 47111, Aug. 30, 1999]
(38 U.S.C.A. 501, 5711)
[EFFECTIVE DATE NOTE: 64 FR 47111, Aug. 30, 1999, redesignated this section,
effective Aug. 30, 1999.]
[CROSS REFERENCE: This section was formerly § 2.1.]
§ 2.3 Delegation of authority to employees to take affidavits, to administer oaths,
etc.
(a) An employee to whom authority is delegated by the Secretary in accordance with 38
U.S.C. 5711, or to whom authority was delegated by the Secretary in accordance with
title III, Pub. L. 844, 74th Congress, section 616, Pub. L. 801, 76th Congress, and section
1211, Pub. L. 85-56, is by virtue of such delegated authority, until such authority is
revoked or otherwise terminated, empowered to take affidavits, to administer oaths and
affirmations, to aid claimants in the preparation and presentation of claims, and to make
investigations, examine witnesses, and certify to the correctness of papers and documents
upon any matter within the jurisdiction of the Department of Veterans Affairs. Such
employee is not authorized to administer oaths in connection with the execution of
affidavits relative to fiscal vouchers and is not authorized to take acknowledgments to
policy loan agreements and applications for cash surrender value to United States
Government life insurance and National Service life insurance.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) Any such oath, affirmation, affidavit, or examination, when certified under the hand
of any such employee by whom it was administered or taken and authenticated by the
seal of the Department of Veterans Affairs, may be offered or used in any court of the
United States and, without further proof of the identity or authority of such employee,
shall have like force and effect as if administered or taken before a clerk of such court.
(c) The delegated authority from the Secretary to employees to take affidavits, to
administer oaths, etc., will be evidenced by VA Form 4505 series.
[24 FR 10018, Dec. 11, 1959; redesignated at 64 FR 47111, Aug. 30, 1999]
[EFFECTIVE DATE NOTE: 64 FR 47111, Aug. 30, 1999, redesignated this section,
effective Aug. 30, 1999.]
[CROSS REFERENCE: This section was formerly § 2.2.]
§ 2.4 Delegation of authority to order paid advertising for use in recruitment.
Paid advertisements may be used in recruitment for VA competitive and excepted service
positions. Authority to order such advertisements is hereby delegated to Administration
Heads, Assistant Secretaries, Other Key Officials (the General Counsel; the Inspector
General; the Chairman, Board of Veterans' Appeals; the Chairman, Board of Contract
Appeals; and the Director, Office of Small and Disadvantaged Business Utilization),
Deputy Assistant Secretaries, to the deputies of such officials, to the Deputy Assistant
Secretary and Associate Deputy Assistant Secretary for Human Resources Management,
and to field facility Directors.
[32 FR 7127, May 11, 1967, as amended at 49 FR 30692, Aug. 1, 1984; 54 FR 34980,
Aug. 23, 1989; 61 FR 20133, 20134, May 6, 1996]
[EFFECTIVE DATE NOTE: 61 FR 20133, 20134, May 6, 1996, which revised this
section, became effective May 6, 1996.]
§ 2.5 Delegation of authority to certify copies of documents, records, or papers in
Department of Veterans Affairs files.
(a) Persons occupying or acting for the following positions in the Office of the General
Counsel are authorized to certify copies of public documents, records, or papers
belonging to or in the files of the Department of Veterans Affairs for the purposes of 38
U.S.C. 302: General Counsel, Deputy General Counsel, Assistant General Counsel,
Deputy Assistant General Counsel, and the Regional Counsel for Puerto Rico.
(b) The person occupying or acting in the position of Chairman of the Department of
Veterans Affairs Board of Contract Appeals is authorized to certify copies of decisions,
orders, subpoenas, and other documents, records, or papers issued by, belonging to, or in
the files of the Boards for the purposes of 38 U.S.C. 302.
(c) The person occupying or acting in the position of Chairman, Board of Veterans
Apeals, is authorized to certify copies of decisions, orders, subpoenas, and other
documents, records, or papers issued by, belonging to, or in the files of the Board for the
purposes of 38 U.S.C. 302.
[46 FR 18978, Mar. 27, 1981, as amended at 49 FR 30692, Aug. 1, 1984; 60 FR 48029,
Sept. 18, 1995; 61 FR 7215, 7216, Feb. 27, 1996]
§ 2.6 Secretary's delegations of authority to certain officials (38 U.S.C. 512).
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Employees occupying or acting in the positions designated below are delegated authority
as indicated:
(a) Veterans Health Administration. The Under Secretary for Health is delegated
authority:
(1) To act on all matters assigned to the Veterans Health Administration by statute (38
U.S.C. Ch. 73) and by regulation, except such matters as require the personal attention or
action of the Secretary.
(2) To revise, exceed, delete, increase, or decrease fees contained in Department of
Veterans Affairs Veterans Health Services and Research Administration Manual M-1,
part I, appendix A (following agreement therefor as provided in the contract with the
intermediary involved), in an approved State fee schedule, and to add additional fees
when found to be necessary, provided such fees are not in excess of those customarily
charged the general public, in the community concerned, for the same service.
(3) To designate the Deputy Under Secretary for Health, or other physician of the
Veterans Health Administration, and authority is hereby delegated such designee to
perform the functions prescribed in paragraph (a)(2) of this section.
(4) To revise, exceed, delete, increase or decrease dental fees established in Department
of Veterans Affairs Veterans Health Services and Research Administration Manual M-4,
chapter 6, and any amendments thereto, and to add additional fees when found to be
necessary, provided: such fees are not in excess of those customarily charged the general
public, in the community concerned, for the same service.
(5) To designate the Assistant Chief Medical Director for Dentistry, and authority is
hereby delegated such designee, to perform the functions prescribed in paragraph (a)(4)
of this section.
(6) To supervise programs for grants to the Republic of the Philippines and medical care
for Commonwealth Army veterans and Philippine Scouts in Veterans Memorial Medical
Center, Manila, pursuant to the provisions of 38 U.S.C. ch. 17, subch. IV.
(7) To designate the Deputy Under Secretary for Health of the Veterans Health
Administration and authority is hereby delegated such designee to designate a
Department of Veterans Affairs full-time physician or nonmedical Director to serve as an
ex officio member on advisory bodies to State Comprehensive Health Planning agencies
and to individual Regional Medical Programs in those areas in which there is located one
or more Department of Veterans Affairs hospitals or other health facilities, who shall
serve on such advisory group as the representative of the Department of Veterans Affairs
health facilities located in that area.
(8) To authorize Directors of Department of Veterans Affairs property and facilities
under the charge and control of the Department of Veterans Affairs to appoint police
officers with the power to enforce Federal laws and Department of Veterans Affairs
regulations, to investigate violations of those laws and to arrest for crimes committed on
Department of Veterans Affairs property to the full extent provided by Department
policies and procedures.
(Authority: 38 U.S.C. 501 and 512.)
(9) To develop and establish minimum safety and quality standards for adaptive
equipment provided under chapter 39 of title 38, United States Code, or to appoint a
designee to perform these functions.
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(b) Veterans Benefits Administration -- (1) General. The Under Secretary for Benefits is
delegated authority to act on all matters assigned to the Veterans Benefits Administration
except as provided in § 1.771 of this chapter and to authorize supervisory or adjudicative
personnel within his/her jurisdiction to perform such functions as may be assigned.
(2) Philippines. The Director, Department of Veterans Affairs Regional Office, Manila,
Philippines, is delegated authority to exercise such authorities as are delegated to
directors of regional offices in the United States, which are appropriate to the
administration in the Republic of the Philippines of the laws administered by the
Department of Veterans Affairs.
(c) Office of Management. (1) The Assistant Secretary for Management (Chief Financial
Officer) is delegated authority to act on all matters assigned to his/her office, and to
authorize supervisory personnel within his/her jurisdiction to perform such functions as
may be assigned. Appropriate written notification will be furnished other Federal
agencies concerning such authorizations.
(2) The Assistant Secretary for Management (Chief Financial Officer) is delegated
authority under 31 U.S.C. 1553(c)(1), to approve, in a fixed appropriation account to
which the period of availability for obligation has expired, obligational increases related
to contract changes when such transaction will cause cumulative obligational increase for
contract changes during a fiscal year to exceed $ 4 million but not more than $ 25 million;
for this responsibility the Assistant Secretary for Management (Chief Financial Officer)
shall act as a member of the Office of the Secretary and shall report to and consult with
the Secretary on these matters.
(d) Assistant Secretary for Management (Chief Financial Officer); administration heads
and staff office directors. The Assistant Secretary for Management (Chief Financial
Officer) is delegated authority to take appropriate action (other than provided for in
paragraphs (e)(3) and (e)(4) of this section) in connection with the collection of civil
claims by VA for money or property, as authorized in § 1.900, et seq. The Assistant
Secretary for Management (Chief Financial Officer) may redelegate such authority as
he/she deems appropriate to administration heads and staff office directors.
(Authority: 38 U.S.C. 501, 512).
(e) General Counsel. (1) [Reserved]
(2) Under the provisions of 38 U.S.C. 515(b), the General Counsel, Deputy General
Counsel, Assistant General Counsel and Regional Counsel, or those authorized to act for
them, are authorized to consider, ascertain, adjust, determine, and settle tort claims
cognizable thereunder and to execute an appropriate voucher and other necessary
instruments in connection with the final disposition of such claims.
(3) Under the provisions of "The Federal Medical Care Recovery Act," 42 U.S.C. 2651,
et seq.(as implemented by part 43, title 28, Code of Federal Regulations), authority is
delegated to the General Counsel, Deputy General Counsel, Assistant General Counsel
(Professional Staff Group I), Deputy Assistant General Counsel of said staff group, and
Regional Counsels or those authorized to act for them, to collect in full, compromise,
settle, or waive any claim and execute the release thereof; however, claims in excess of $
100,000 may be compromised, settled, or waived only with the prior approval of the
Department of Justice.
(4) General Counsel. Under the Federal Claims Collection Act of 1966, 31 U.S.C. 3711,
et seq., authority is delegated to the General Counsel, Deputy General Counsel, Assistant
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General Counsel, Deputy Assistant General Counsel and Regional Counsel, or those
authorized to act for them, to:
(i) Make appropriate determinations with respect to the litigative probabilities of a claim
(§ 1.932 of this chapter), the legal merits of a claim (§ 1.942(e) of this chapter), and any
other legal considerations of a claim.
(ii) Collect in full a claim involving damage to or loss of government property under the
jurisdiction of the Department of Veterans Affairs resulting from negligence or other
legal wrong of a person (other than an employee of the Government while acting within
the scope of his or her employment) and to compromise, suspend, or terminate any such
claim not exceeding $ 100,000.
(iii) Collect a claim in full from an individual or legal entity who is liable for the cost of
hospital, medical, surgical, or dental care and treatment of a person, and to compromise,
suspend, or terminate any such claim not exceeding $ 100,000.
(Authority: 31 U.S.C. 3711(a)(2); 38 U.S.C. 501, 512).
(iv) The delegations of authority set forth in paragraphs (e)(4)(ii) and (iii) of this section
do not apply to the handling of any claim as to which there is an indication of fraud, the
presentation of a false claim or misrepresentation on the part of the debtor or any other
party having an interest in the claim, or to any claim based in whole or in part on conduct
in violation of the antitrust laws. Such cases will be considered by the General Counsel,
who will make the determination in all instances as to whether the case warrants referral
to the Department of Justice. The delegations of authority are applicable to those claims
where the Department of Justice determines that action based upon the alleged fraud,
false claim, or misrepresentation is not warranted.
(5) Pursuant to the provisions of the Military Personnel and Civilian Employees' Claim
Act of 1964, 31 U.S.C. 3721, as amended, the General Counsel, Deputy General Counsel,
Assistant General Counsel (Professional Staff Group III), Deputy Assistant General
Counsel of said staff group, and Regional Counsel or those authorized to act for them, are
authorized to settle and pay a claim for not more than $ 40,000 made by a civilian officer
or employee of the Department of Veterans Affairs for damage to, or loss of, personal
property incident to his or her service. (Pub. L. 97-226)
(6) Under the provisions of 38 U.S.C. 7316(e), authority is delegated to the General
Counsel, Deputy General Counsel, and the Assistant General Counsel (Professional Staff
Group I) to hold harmless or provide liability insurance for any person to whom the
immunity provisions of section 7316 apply, for damage for personal injury or death, or
for property damage, negligently caused by such person while furnishing medical care or
treatment in the exercise of his or her duties in or for the Veterans Health Administration,
if such person is assigned to a foreign country, detailed to State or political division
thereof, or is acting under any other circumstances which would preclude the remedies of
an injured third person against the United States, provided by sections 1346(b) and 2672
of title 28, United States Code, for such damage or injury.
(7) The General Counsel, Deputy General Counsel, and those authorized to act for them,
are authorized to conduct investigations, examine witnesses, take affidavits, administer
oaths and affirmations, and certify copies of public or private documents on all matters
within the jurisdiction of the General Counsel. Pursuant to the provisions of § 2.2(c), the
General Counsel, Deputy General Counsel, and those authorized to act for them, are
authorized to countersign VA Form 4505.
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(8) The General Counsel, or the Deputy General Counsel acting as or for the General
Counsel, is authorized to designate, in accordance with established standards, those legal
opinions of the General Counsel which will be considered precedent opinions involving
veterans' benefits under laws administered by the Department of Veterans Affairs.
(Authority: 38 U.S.C. 501, 512)
(9) Under the provisions of 38 U.S.C. 1729(c)(1), authority is delegated to the General
Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group
I), Deputy Assistant General Counsel of said staff group, and Regional Counsel, or those
authorized to act for them, to collect in full, compromise, settle, or waive any claim and
execute the release thereof; however, claims in excess of $ 100,000 may only be
compromised, settled, or waived with the prior approval of the General Counsel, Deputy
General Counsel, Assistant General Counsel (Professional Staff Group I), or Deputy
Assistant General Counsel of said staff group, or those authorized to act for them.
(Authority: 38 U.S.C. 501, 512, 1729(c)(1)).
(10) The General Counsel and the Deputy General Counsel are authorized to make final
Departmental decisions on appeals under the Freedom of Information Act, the Privacy
Act, 38 U.S.C. 5701 and 5705.
(Authority: 38 U.S.C. 512)
(11) All authority delegated in this paragraph to Regional Counsels will be exercised by
them under the supervision of and in accordance with instructions issued by the General
Counsel.
(f) National Cemetery Administration. Under Secretary for Memorial Affairs is delegated
authority:
(1) To act on all matters assigned to the National Cemetery Administration by statute (38
U.S.C. chapter 24) and by regulation except where specifically requiring the personal
attention or action of the Secretary and to authorize supervisory personnel within the
jurisdiction of the Under Secretary for Memorial Affairs, to perform such functions as
may be assigned.
(2) To designate, as deemed necessary, Superintendents of National Cemeteries as special
investigators under 38 U.S.C. 901, however, such law enforcement authority is limited to
enforcement of rules and regulations governing conduct on property under the charge and
control of the Department of Veterans Affairs, as those rules and regulations apply to the
cemetery over which the individual Superintendent exercises control and jurisdiction.
Such designation will not authorize the carrying of firearms by any Superintendent.
(3) To accept donations of a minor nature, such as, individual trees for planting in burial
areas and privately purchased grave markers.
(4) To name features in national cemeteries, such as, roads, walks, and special structures.
(5) To establish policies and specifications for inscriptions on Government headstones,
markers, and private monuments.
(Authority: 38 U.S.C. 501, 512, 2404)
(g) Inspector General. (1) The Secretary delegates to the Inspector General, the authority,
as head of the Department of Veterans Affairs, to make written requests under the
Privacy Act of 1974, 5 U.S.C. 552a(b)(7), for the transfer of records or copies of records
maintained by other agencies which are necessary to carry out an authorized law
enforcement activity of the Office of Inspector General. This delegation is made pursuant
to 38 U.S.C. 512. The Inspector General may redelegate the foregoing authority within
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the Office of Inspector General, but the delegation may only be to an official of sufficient
rank to ensure that the request for the records has been the subject of a high level
evaluation of the need for the information.
(2) The Inspector General delegates the authority under the Inspector General Act of
1978, and redelegates the authority under paragraph (a) of this section, to request Privacy
Act-protected records from Federal agencies pursuant to subsection (b)(7) of the Privacy
Act to each of the following Office of Inspector General officials: (i) Deputy Inspector
General, (ii) Assistant Inspector General for Investigations, (iii) Deputy Assistant
Inspector General for Investigations, (iv) Chief of Operations, and (v) Special Agents in
Charge of Field Offices of Investigations. These officials may not redelegate this
authority.
(Authority: 5 U.S.C 552a)
(h) Delegations to Office Resolution Management Officials (ORM). (1) The Deputy
Assistant Secretary for Resolution Management is delegated authority to supervise and
control the operation of the administrative EEO Discrimination Complaint Processing
System within the Department.
(2) The Deputy Assistant Secretary for Resolution Management, the Chief Operating
Officer, and all Regional EEO Officers/Field Managers are delegated authority to make
procedural agency decisions to either accept or dismiss, in whole or in part, EEO
discrimination complaints based upon race, color, national origin, sex, religion, age,
disability, or reprisal filed by employees, former employees, or applicants for
employment.
(3) The Deputy Assistant Secretary for Resolution Management, the Chief Operating
Officer, and the Chief, Policy and Compliance are delegated authority to make agency
decisions on all breach of settlement claims raised by employees, former employees, and
applicants for employment.
(4) The Deputy Assistant Secretary for Resolution Management, the Chief Operating
Officer, and the Chief, Policy and Compliance are delegated authority to consider and
resolve all claims raised by employees, former employees, and applicants for
employment that allege dissatisfaction with the processing of a previously filed EEO
discrimination complaint.
(5) The Deputy Assistant Secretary for Resolution Management, the Chief Operating
Officer, and the Chief, Policy and Compliance are delegated authority to monitor
compliance by Department organizational components with orders and decisions of the
OEDCA and the EEOC.
(i) Delegations to officials of the Office of Employment Discrimination Complaint
Adjudication (OEDCA). (1) The Director and Associate Director, OEDCA, are delegated
authority to make procedural decisions to dismiss, in whole or in part, any EEO
discrimination complaint filed by any employee, former employee, or applicant for
employment that may be pending before OEDCA, where administrative complaint
processing efficiency may be best served by doing so.
(2) The Director and Associate Director, OEDCA, are delegated authority to dismiss, in
whole or in part any EEO discrimination complaint based upon race, color, religion, sex,
national origin, age, disability, or reprisal filed by any ORM employee, former employee,
or applicant for employment.
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(3) The Director and Associate Director, OEDCA, are delegated authority to make the
agency decision on all breach of settlement claims raised by ORM employees, former
employees, and applicants for employment.
(4) The Director and Associate Director, OEDCA, are delegated authority to consider and
resolve all claims raised by ORM employees, former employees, and applicants for
employment that allege dissatisfaction with the processing of a previously filed EEO
discrimination complaint.
(5) The Director and Associate Director, OEDCA, are delegated authority to make
procedural agency decisions to either accept or dismiss, in whole or in part, EEO
discrimination complaints filed by employees, former employees, or applicants for
employment where the ORM must recuse itself from a case due to an actual, apparent, or
potential conflict of interest.
(j) Delegation to the Chairman, Board of Contract Appeals. In cases where OEDCA has
recused itself from a case due to an actual, apparent, or potential conflict of interest, the
Chairman, Board of Contract Appeals, is delegated authority to make procedural agency
decisions to dismiss, in whole or in part, EEO discrimination complaints filed by agency
employees, former employees, and applicants for employment; to make substantive final
agency decisions where complainants do not request an EEOC hearing; and to take
agency action following a decision by an EEOC Administrative Judge.
(k) Processing complaints involving certain officials. A complaint alleging that the
Secretary or the Deputy Secretary personally made a decision directly related to matters
in dispute, or are otherwise personally involved in such matters, will be referred for
procedural acceptability review, investigation, and substantive decisionmaking to another
Federal agency (e.g., The Department of Justice) pursuant to a cost reimbursement
agreement. Referral will not be made when the action complained of relates merely to
ministerial involvement in such matters (e.g., ministerial approval of selection
recommendations submitted to the Secretary by the Under Secretary for Health, the
Under Secretary for Benefits, the Under Secretary for Memorial Affairs, assistant
secretaries, or staff office heads).
(l) Assistant to the Secretary, Office of Regulation Policy and Management. The
Assistant to the Secretary for Regulation Policy and Management (ASRPM) is delegated
authority:
(1) To act on all matters assigned to the Office of Regulation Policy and Management,
except such matters as require the personal attention or action of the Secretary or the
Secretary's Regulatory Policy Council.
(2) To manage and coordinate the Department's rulemaking activities, including the
revision and reorganization of regulations.
(3) To serve as the Regulatory Policy Officer for the Department's rulemaking activities
in accordance with Executive Order 12866.
[25 FR 11095, Nov. 23, 1960; 51 FR 23227, (1986); 53 FR 49879, (1988); 54 FR 5613,
34980 (1989); 55 FR 21546, 48841 (1990); 56 FR 12123, 23519 (1991); 56 FR 32442
(1993); 58 FR 39152, July 22, 1993; 61 FR 7215, 7216, Feb. 27, 1996; 61 FR 26107,
May 24, 1996; 61 FR 27783, 27784, June 3, 1996; 61 FR 56448, 56449, Nov. 1, 1996; 63
FR 11121, 11122, Mar. 6, 1998; 64 FR 47111, Aug. 30, 1999; 67 FR 3433, 3434, Jan. 24,
2002; 68 FR 25503, 25504, May 13, 2003; 69 FR 62188, Oct. 25, 2004]
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(38 U.S.C. 501, 512.)
[EFFECTIVE DATE NOTE: 67 FR 3433, 3434, Jan. 24, 2002, amended this section,
effective Jan. 24, 2002; 68 FR 25503, 25504, May 13, 2003, added paragraph (l) and the
authority citation at the end of this section, effective May 13, 2003.]
§ 2.7 Delegation of authority to provide relief on account of administrative error.
(a) Section 503(a) of title 38 U.S.C., provides that if the Secretary determines that
benefits administered by the Department of Veterans Affairs have not been provided by
reason of administrative error on the part of the Federal Government or any of its
employees, the Secretary is authorized to provide such relief on account of such error as
the Secretary determines equitable, including the payment of moneys to any person
whom he determines equitably entitled thereto.
(b) Section 503(b) of title 38 U.S.C., provides that if the Secretary determines that any
veteran, surviving spouse, child of a veteran, or other person, has suffered loss, as a
consequence of reliance upon a determination by the Department of Veterans Affairs of
eligibility or entitlement to benefits, without knowledge that it was erroneously made, the
Secretary is authorized to provide such relief as the Secretary determines equitable,
including the payment of moneys to any person equitably entitled thereto. The Secretary
is also required to submit an annual report to the Congress, containing a brief summary of
each recommendation for relief and its disposition. Preparation of the report shall be the
responsibility of the General Counsel.
(c) The authority to grant the equitable relief, referred to in paragraphs (a) and (b) of this
section, has not been delegated and is reserved to the Secretary. Recommendation for the
correction of administrative error and for appropriate equitable relief therefrom will be
submitted to the Secretary, through the General Counsel. Such recommendation may be
initiated by the head of the administration having responsibility for the benefit, or of any
concerned staff office, or by the Chairman, Board of Veterans Appeals. When a
recommendation for relief under paragraph (a) or (b) of this section is initiated by the
head of a staff office, or the Chairman, Board of Veterans Appeals, the views of the head
of the administration having responsibility for the benefit will be obtained and
transmitted with the recommendation of the initiating office.
[37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54 FR 34981,
Aug. 23, 1989; 68 FR 25503, 25504, May 13, 2003]
(38 U.S.C. 503, 512.)
[EFFECTIVE DATE NOTE: 68 FR 25503, 25504, May 13, 2003, amended paragraph (b)
and added the authority citation at the end of the section, effective May 13, 2003.]
§ 2.8 Delegation of authority to authorize allowances for Department of Veterans
Affairs employees who are notaries public.
(a) Employees occupying or acting in the positions designated in paragraph (b) of this
section are authorized to designate those employees who are required to serve as notaries
public in connection with the performance of official business and to pay an allowance
for the costs therefor not to exceed the expense required to be incurred by them in order
to obtain their commission.
(Authority: 5 U.S.C. 5945)
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(b) Designated positions: Deputy Secretary, Under Secretary for Benefits, Director,
Office of Data Management and Telecommunications, Chief Medical Director, General
Counsel, Directors of regional offices, hospitals, domiciliaries, and centers.
[35 FR 13771, Aug. 29, 1970, as amended at 49 FR 30693, Aug. 1, 1984]
§ 2.98 Delegation of authority to Directors of VA field facilities to determine
whether or not a school closing is based on Executive order of the President or due
to an emergency situation and to the Director, Vocational Rehabilitation and
Education Service, to review these decisions.
This delegation of authority is identical to §§ 21.130, 21.4203, and 21.4205 of this
chapter.
[44 FR 25648, May 2, 1979]
§ 2.100 Delegation of authority to the Under Secretary for Benefits or his or her
designee to enter into Memoranda of Agreement with authorized representatives of
Department of Defense or Department of Labor or both to implement programs
authorized by §§ 21.4800 through 21.4856.
This delegation is described in § 21.4854 of this chapter.
[60 FR 5852, Jan. 31, 1995]
§ 2.101 Delegation of authority to the Under Secretary for Benefits, and to
supervisory or adjudicative personnel within the jurisdiction of the Veterans
Benefits Administration designated by him or her, to make findings and decisions of
the Department of Veterans Affairs under the Service Members Occupational
Conversion and Training Act, and the applicable regulations, precedents and
instructions, relating to programs authorized by §§ 21.4800 through 21.4854.
This delegation is described in § 21.4856 of this chapter.
[60 FR 5852, Jan. 31, 1995]
——————————
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PART 3 -- ADJUDICATION
SUBPART A -- PENSION, COMPENSATION, AND DEPENDENCY AND
INDEMNITY COMPENSATION
SUBPART B -- BURIAL BENEFITS
Subpart D -- Universal Adjudication Rules That Apply to Benefit Claims Governed
by Part 3 of This Title
[PUBLISHER'S NOTE: Nomenclature changes affecting part 3 appear at 67 FR 46868,
July 17, 2002.]
——————————
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SUBPART A -- PENSION, COMPENSATION, AND DEPENDENCY
AND INDEMNITY COMPENSATION
GENERAL
RELATIONSHIP
ADMINISTRATIVE
CLAIMS
EVIDENCE REQUIREMENTS
DEPENDENCY, INCOME AND ESTATE
REGULATIONS APPLICABLE TO THE IMPROVED PENSION PROGRAM
WHICH BECAME EFFECTIVE JANUARY 1, 1979
Ratings and Evaluations; Basic Entitlement Considerations
RATINGS AND EVALUATIONS; SERVICE CONNECTION
RATINGS FOR SPECIAL PURPOSES
RATING CONSIDERATIONS RELATIVE TO SPECIFIC DISEASES
EFFECTIVE DATES
APPORTIONMENTS
REDUCTIONS AND DISCONTINUANCES
HOSPITALIZATION ADJUSTMENTS
ADJUSTMENTS AND RESUMPTIONS
CONCURRENT BENEFITS AND ELECTIONS
RETIREMENT
SPECIAL BENEFITS
INCOMPETENTS, GUARDIANSHIP AND INSTITUTIONAL AWARDS
FORFEITURE
PROTECTION
ACCRUED
38 U.S.C. 501(a).
——————————
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GENERAL
§ 3.1 Definitions.
§ 3.2 Periods of war.
§ 3.3 Pension.
§ 3.4 Compensation.
§ 3.5 Dependency and indemnity compensation.
§ 3.6 Duty periods.
§ 3.7 Individuals and groups considered to have performed active military, naval, or
air service.
§ 3.10 Dependency and indemnity compensation rate for a surviving spouse.
§ 3.11 Homicide.
§ 3.12 Character of discharge.
§ 3.12a Minimum active-duty service requirement.
§ 3.13 Discharge to change status.
§ 3.14 Validity of enlistments.
§ 3.15 Computation of service.
§ 3.16 Service pension.
§ 3.17 Disability and death pension; Mexican border period and later war periods.
§§ 3.18 -- 3.19 [Reserved]
§ 3.20 Surviving spouse's benefit for month of veteran's death.
§ 3.21 Monetary rates.
§ 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of
death.
§ 3.23 Improved pension rates -- Veterans and surviving spouses.
§ 3.24 Improved pension rates -- Surviving children.
§ 3.25 Parent's dependency and indemnity compensation (DIC) -- Method of payment
computation.
§ 3.26 Section 306 and old-law pension annual income limitations.
§ 3.27 Automatic adjustment of benefit rates.
§ 3.28 Automatic adjustment of section 306 and old-law pension income limitations.
§ 3.29 Rounding.
§ 3.30 Frequency of payment of improved pension and parents' dependency and
indemnity compensation (DIC).
§ 3.31 Commencement of the period of payment.
§ 3.32 Exchange rates for foreign currencies.
§ 3.40 Philippine and Insular Forces.
§ 3.41 Philippine service.
§ 3.42 Compensation at the full-dollar rate for certain Filipino veterans residing in the
United States.
§ 3.43 Burial benefits at the full-dollar rate for certain Filipino veterans residing in
the United States on the date of death.
xiii
§ 3.1 Definitions.
Discussion and Analysis in the Veterans Benefits Manual
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(a) Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and
Coast Guard, including their Reserve components.
(b) Reserve component means the Army, Naval, Marine Corps, Air Force, and Coast
Guard Reserves and the National and Air National Guard of the United States.
(c) Reserves means members of a Reserve component of one of the Armed Forces.
(d) Veteran means a person who served in the active military, naval, or air service and
who was discharged or released under conditions other than dishonorable.
(1) For compensation and dependency and indemnity compensation the term veteran
includes a person who died in active service and whose death was not due to willful
misconduct.
(2) For death pension the term veteran includes a person who died in active service under
conditions which preclude payment of service-connected death benefits, provided such
person had completed at least 2 years honorable military, naval or air service, as certified
by the Secretary concerned. (See §§ 3.3(b)(3)(i) and 3.3(b)(4)(i))
(Authority: 38 U.S.C. 501)
(e) Veteran of any war means any veteran who served in the active military, naval or air
service during a period of war as set forth in § 3.2.
(f) Period of war means the periods described in § 3.2.
(g) Secretary concerned means:
(1) The Secretary of the Army, with respect to matters concerning the Army;
(2) The Secretary of the Navy, with respect to matters concerning the Navy or the Marine
Corps;
(3) The Secretary of the Air Force, with respect to matters concerning the Air Force;
(4) The Secretary of Transportation, with respect to matters concerning the Coast Guard;
(5) The Secretary of Health and Human Services, with respect to matters concerning the
Public Health Service; and
(6) The Secretary of Commerce, with respect to matters concerning the Coast and
Geodetic Survey, the Environmental Science Services Administration, and the National
Oceanic and Atmospheric Administration.
(h) Discharge or release includes retirement from the active military, naval, or air service.
(i) State means each of the several States, Territories and possessions of the United States,
the District of Columbia, and Commonwealth of Puerto Rico.
(j) Marriage means a marriage valid under the law of the place where the parties resided
at the time of marriage, or the law of the place where the parties resided when the right to
benefits accrued.
(Authority: 38 U.S.C. 103(c))
(k) Service-connected means, with respect to disability or death, that such disability was
incurred or aggravated, or that the death resulted from a disability incurred or aggravated,
in line of duty in the active military, naval, or air service.
(l) Nonservice-connected means, with respect to disability or death, that such disability
was not incurred or aggravated, or that the death did not result from a disability incurred
or aggravated, in line of duty in the active military, naval, or air service.
(m) In line of duty means an injury or disease incurred or aggravated during a period of
active military, naval, or air service unless such injury or disease was the result of the
veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result
of his or her abuse of alcohol or drugs. A service department finding that injury, disease
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or death occurred in line of duty will be binding on the Department of Veterans Affairs
unless it is patently inconsistent with the requirements of laws administered by the
Department of Veterans Affairs. Requirements as to line of duty are not met if at the time
the injury was suffered or disease contracted the veteran was:
(1) Avoiding duty by desertion, or was absent without leave which materially interfered
with the performance of military duty.
(2) Confined under a sentence of court-martial involving an unremitted dishonorable
discharge.
(3) Confined under sentence of a civil court for a felony as determined under the laws of
the jurisdiction where the person was convicted by such court.
(Authority: 38 U.S.C. 105)
NOTE: See § 3.1(y)(2)(iii) for applicability of in line of duty in determining former
prisoner of war status.
(n) Willful misconduct means an act involving conscious wrongdoing or known
prohibited action. A service department finding that injury, disease or death was not due
to misconduct will be binding on the Department of Veterans Affairs unless it is patently
inconsistent with the facts and the requirements of laws administered by the Department
of Veterans Affairs.
(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and
reckless disregard of its probable consequences.
(2) Mere technical violation of police regulations or ordinances will not per se constitute
willful misconduct.
(3) Willful misconduct will not be determinative unless it is the proximate cause of injury,
disease or death. (See §§ 3.301, 3.302.)
(o) Political subdivision of the United States includes the jurisdiction defined as a State in
paragraph (i) of this section, and the counties, cities or municipalities of each.
(p) Claim -- Application means a formal or informal communication in writing requesting
a determination of entitlement or evidencing a belief in entitlement, to a benefit.
(q) Notice means written notice sent to a claimant or payee at his or her latest address of
record.
(r) Date of receipt means the date on which a claim, information or evidence was
received in the Department of Veterans Affairs, except as to specific provisions for
claims or evidence received in the State Department (§ 3.108), or in the Social Security
Administration (§§ 3.153, 3.201), or Department of Defense as to initial claims filed at or
prior to separation. However, the Under Secretary for Benefits may establish, by
notice published in the Federal Register, exceptions to this rule, using factors such as
postmark or the date the claimant signed the correspondence, when he or she
determines that a natural or man-made interference with the normal channels through
which the Veterans Benefits Administration ordinarily receives correspondence has
resulted in one or more Veterans Benefits Administration offices experiencing
extended delays in receipt of claims, information, or evidence from claimants served by
the affected office or offices to an extent that, if not addressed, would adversely affect
such claimants through no fault of their own.
(Authority: 38 U.S.C. 501(a), 512(a), 5110)
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(s) On the borders thereof means, with regard to service during the Mexican border
period, the States of Arizona, California, New Mexico, and Texas, and the nations of
Guatemala and British Honduras.
(Authority: 38 U.S.C. 101(30))
(t) In the waters adjacent thereto means, with regard to service during the Mexican border
period, the waters (including the islands therein) which are within 750 nautical miles (863
statute miles) of the coast of the mainland of Mexico.
(Authority: 38 U.S.C. 101(30))
(u) Section 306 pension means those disability and death pension programs in effect on
December 31, 1978, which arose out of Pub. L. 86-211; 73 Stat. 432.
(v) Old-Law pension means the disability and death pension programs that were in effect
on June 30, 1960. Also known as protected pension, i.e. protected under section 9(b) of
the Veteran's Pension Act of 1959 (Pub. L. 86-211; 73 Stat. 432).
(w) Improved pension means the disability and death pension programs becoming
effective January 1, 1979, under authority of Pub. L. 95-588; 92 Stat. 2497.
(x) Service pension is the name given to Spanish-American War pension. It is referred to
as a service pension because entitlement is based solely on service without regard to
nonservice-connected disability, income and net worth.
(Authority: 38 U.S.C. 1512, 1536)
(y) Former prisoner of war. The term former prisoner of war means a person who, while
serving in the active military, naval or air service, was forcibly detained or interned in the
line of duty by an enemy or foreign government, the agents of either, or a hostile force.
(1) Decisions based on service department findings. The Department of Veterans Affairs
shall accept the findings of the appropriate service department that a person was a
prisoner of war during a period of war unless a reasonable basis exists for questioning it.
Such findings shall be accepted only when detention or internment is by an enemy
government or its agents.
(2) Other decisions. In all other situations, including those in which the Department of
Veterans Affairs cannot accept the service department findings, the following factors
shall be used to determine prisoner of war status:
(i) Circumstances of detention or internment. To be considered a former prisoner of war,
a serviceperson must have been forcibly detained or interned under circumstances
comparable to those under which persons generally have been forcibly detained or
interned by enemy governments during periods of war. Such circumstances include, but
are not limited to, physical hardships or abuse, psychological hardships or abuse,
malnutrition, and unsanitary conditions. Each individual member of a particular group of
detainees or internees shall, in the absence of evidence to the contrary, be considered to
have experienced the same circumstances as those experienced by the group.
(ii) Reason for detainment or internment. The reason for which a serviceperson was
detained or interned is immaterial in determining POW status, except that a serviceperson
who is detained or interned by a foreign government for an alleged violation of its laws is
not entitled to be considered a former POW on the basis of that period of detention or
internment, unless the charges are a sham intended to legitimize the period of detention
or internment.
(3) Central Office approval. The Director of the Compensation and Pension Service, VA
Central Office, shall approve all VA regional office determinations establishing or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
denying POW status, with the exception of those service department determinations
accepted under paragraph (y)(1) of this section.
(4) In line of duty. The Department of Veterans Affairs shall consider that a
serviceperson was forcibly detained or interned in line of duty unless the evidence of
record discloses that forcible detainment or internment was the proximate result of the
serviceperson's own willful misconduct.
(5) Hostile force. The term hostile force means any entity other than an enemy or foreign
government or the agents of either whose actions are taken to further or enhance
anti-American military, political or economic objectives or views, or to attempt to
embarrass the United States.
(Authority: 38 U.S.C. 101(32))
(z) Nursing home means
(1) Any extended care facility which is licensed by a State to provide skilled or
intermediate-level nursing care,
(2) A nursing home care unit in a State veterans' home which is approved for payment
under 38 U.S.C. 1742, or
(3) A Department of Veterans Affairs Nursing Home Care Unit.
(aa) Fraud:
(1) As used in 38 U.S.C. 103 and implementing regulations, fraud means an intentional
misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the
purpose of obtaining, or assisting an individual to obtain an annulment or divorce, with
knowledge that the misrepresentation or failure to disclose may result in the erroneous
granting of an annulment or divorce; and
(Authority: 38 U.S.C. 501)
(2) As used in 38 U.S.C. 110 and 1159 and implementing regulations, fraud means an
intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts,
for the purpose of obtaining or retaining, or assisting an individual to obtain or retain,
eligibility for Department of Veterans Affairs benefits, with knowledge that the
misrepresentation or failure to disclose may result in the erroneous award or retention of
such benefits.
[26 FR 1563, Feb. 24, 1961; 54 FR 31828, 34981 (1989); 55 FR 8141 (1990); 56 FR
19579, 65846, 65849, 65851, 65853 (1991); 57 FR 8268, 10425, 59296 (1992); 60 FR
27408, May 24, 1995; 61 FR 56626, 56627, Nov. 4, 1996; 69 FR 42879, July 19, 2004]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 56626, 56627, Nov. 4, 1996, which amended
paragraph (n), removed the note following paragraph (n)(3), and removed the last two
sentences in paragraph (y)(4), became effective Nov. 4, 1996.]
CROSS-REFERENCES: Pension. See § 3.3. Compensation. See § 3.4. Dependency and
indemnity compensation. See § 3.5. Preservation of disability ratings. See § 3.951.
Service-connection. See § 3.957.
xiv
§ 3.2 Periods of war.
Discussion and Analysis in the Veterans Benefits Manual
This section sets forth the beginning and ending dates of each war period beginning with
the Indian wars. Note that the term period of war in reference to pension entitlement
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
under 38 U.S.C. 1521, 1541 and 1542 means all of the war periods listed in this section
except the Indian wars and the Spanish-American War. See § 3.3(a)(3) and (b)(4)(i).
(a) Indian wars. January 1, 1817, through December 31, 1898, inclusive. Service must
have been rendered with the United States military forces against Indian tribes or nations.
(b) Spanish-American War. April 21, 1898, through July 4, 1902, inclusive. If the veteran
served with the United States military forces engaged in hostilities in the Moro Province,
the ending date is July 15, 1903. The Philippine Insurrection and the Boxer Rebellion are
included.
(c) World War I. April 6, 1917, through November 11, 1918, inclusive. If the veteran
served with the United States military forces in Russia, the ending date is April 1, 1920.
Service after November 11, 1918 and before July 2, 1921 is considered World War I
service if the veteran served in the active military, naval, or air service after April 5, 1917
and before November 12, 1918.
(d) World War II. December 7, 1941, through December 31, 1946, inclusive. If the
veteran was in service on December 31, 1946, continuous service before July 26, 1947, is
considered World War II service.
(e) Korean conflict. June 27, 1950, through January 31, 1955, inclusive.
(f) Vietnam era. The period beginning on February 28, 1961, and ending on May 7, 1975,
inclusive, in the case of a veteran who served in the Republic of Vietnam during that
period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive,
in all other cases.
(g) Future dates. The period beginning on the date of any future declaration of war by the
Congress and ending on a date prescribed by Presidential proclamation or concurrent
resolution of the Congress.
(Authority: 38 U.S.C. 101)
(h) Mexican border period. May 9, 1916, through April 5, 1917, in the case of a veteran
who during such period served in Mexico, on the borders thereof, or in the waters
adjacent thereto.
(Authority: 38 U.S.C. 101(30))
(i) Persian Gulf War. August 2, 1990, through date to be prescribed by Presidential
proclamation or law.
[26 FR 1563, Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967; 36 FR 8445,
May 6, 1971; 37 FR 6676, April 1, 1972; 40 FR 27030, June 26, 1975; 44 FR 45931,
Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR 35421, 35422, July 1, 1997]
(38 U.S.C. 101(33))
[EFFECTIVE DATE NOTE: 62 FR 35421, 35422, July 1, 1997, revised paragraph (f),
effective Jan. 1, 1997.]
xv
§ 3.3 Pension.
Discussion and Analysis in the Veterans Benefits Manual
(a) Pension for veterans -- (1) Service pension; Spanish-American War. A benefit
payable monthly by the Department of Veterans Affairs because of service in the
Spanish-American War. Basic entitlement exists if a veteran:
(i) Had 70 (or 90) days or more active service during the Spanish-American War; or
(ii) Was discharged or released from such service for a disability adjudged service
connected without benefit of presumptive provisions of law, or at the time of discharge
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
had such a service-connected disability, shown by official service records, which in
medical judgment would have justified a discharge for disability.
(Authority: 38 U.S.C. 1512)
(2) Section 306 pension. A benefit payable monthly by the Department of Veterans
Affairs because of nonservice-connected disability or age. Basic entitlement exists if a
veteran:
(i) Served 90 days or more in either the Mexican border period, World War I, World War
II, the Korean conflict, or the Vietnam era, or served an aggregate of 90 days or more in
separate periods of service during the same or during different war periods, including
service during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L. 90-77,
81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or
(ii) Served continuously for a period of 90 consecutive days or more and such period
ended during the Mexican border period or World War I, or began or ended during World
War II, the Korean conflict or the Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L.
88-664, 78 Stat. 1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub. L.
92-198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204, 91 Stat. 1455); or
(iii) Was discharged or released from such wartime service, before having served 90 days,
for a disability adjudged service connected without the benefit of presumptive provisions
of law, or at the time of discharge had such a service-connected disability, shown by
official service records, which in medical judgment would have justified a discharge for
disability; and
(iv) Is permanently and totally disabled (a) from nonservice-connected disability not due
to the veteran's own willful misconduct or vicious habits, or (b) by reason of having
attained the age of 65 years or by reason of having become unemployable after age 65;
and
(v)(a) Is in receipt of section 306 pension or (b) has an application for pension pending on
December 31, 1978, or (c) meets the age or disability requirements for such pension on
December 31, 1978, and files a claim within 1 year of that date and also within 1 year
after meeting the age or disability requirements.
(vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in
effect on December 31, 1978, and all other provisions of title 38, United States Code, in
effect on December 31, 1978, applicable to section 306 pension.
NOTE: The pension provisions of title 38 U.S.C., as in effect on December 31, 1978, are
available in any VA regional office.
(3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). A benefit payable by the
Department of Veterans Affairs to veterans of a period or periods of war because of
nonservice-connected disability or age. The qualifying periods of war for this benefit are
the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam
era and the Persian Gulf War. Payments are made monthly unless the amount of the
annual benefit is less than 4 percent of the maximum annual rate payable to a veteran
under 38 U.S.C. 1521(b), in which case payments may be made less frequently than
monthly. Basic entitlement exists if a veteran:
(i) Served in the active military, naval or air service for 90 days or more during a period
of war (38 U.S.C. 1521(j)); or
(ii) Served in the active military, naval or air service during a period of war and was
discharged or released from such service for a disability adjudged service-connected
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
without presumptive provisions of law, or at time of discharge had such a
service-connected disability, shown by official service records, which in medical
judgment would have justified a discharge for disability (38 U.S.C. 1521(j)); or
(iii) Served in the active military, naval or air service for a period of 90 consecutive days
or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or
(iv) Served in the active military, naval or air service for an aggregate of 90 days or more
in two or more separate periods of service during more than one period of war (38 U.S.C.
1521(j)); and
(v) Meets the net worth requirements under § 3.274 and does not have an annual income
in excess of the applicable maximum annual pension rate specified in § 3.23; and
(vi)(A) Is age 65 or older; or
(B) Is permanently and totally disabled from nonservice-connected disability not due to
the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is
considered permanently and totally disabled if the veteran is any of the following:
(1) A patient in a nursing home for long-term care because of disability; or
(2) Disabled, as determined by the Commissioner of Social Security for purposes of any
benefits administered by the Commissioner; or
(3) Unemployable as a result of disability reasonably certain to continue throughout the
life of the person; or
(4) Suffering from:
(i) Any disability which is sufficient to render it impossible for the average person to
follow a substantially gainful occupation, but only if it is reasonably certain that such
disability will continue throughout the life of the person; or
(ii) Any disease or disorder determined by VA to be of such a nature or extent as to
justify a determination that persons suffering from that disease or disorder are
permanently and totally disabled.
(Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)
(b) Pension for survivors -- (1) Indian war death pension. A monthly benefit payable by
the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran
of an Indian war. Basic entitlement exists if a veteran had qualifying service as specified
in 38 U.S.C. 1511. Indian war death pension rates are set forth in 38 U.S.C. 1534 and
1535.
(2) Spanish-American War death pension. A monthly benefit payable by the Department
of Veterans Affairs to the surviving spouse or child of a deceased veteran of the
Spanish-American War, if the veteran:
(i) Had 90 days or more active service during the Spanish-American War; or
(ii) Was discharged or released from such service for a disability service-connected
without benefit of presumptive provisions of law, or at time of discharge had such a
service-connected disability, as shown by official service records, which in medical
judgment would have justified a discharge for disability.
(Authority: 38 U.S.C. 1536, 1537)
(3) Section 306 death pension. A monthly benefit payable by the Department of Veterans
Affairs to a surviving spouse or child because of a veteran's nonservice-connected death.
Basic entitlement exists if:
(i) The veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in
paragraph (a)(2)(i), (ii), or (iii) of this section; or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(ii) The veteran was, at time of death, receiving or entitled to receive compensation or
retired pay for service-connected disability based on wartime service; and
(iii) The surviving spouse or child (A) was in receipt of section 306 pension on December
31, 1978, or (B) had a claim for pension pending on that date, or (C) filed a claim for
pension after that date but within 1 year after the veteran's death, if the veteran died
before January 1, 1979; and
(iv) The surviving spouse or child meets the income and net worth requirements of 38
U.S.C. 1541, 1542 or 1543 as in effect on December 31, 1978, and all other provisions of
title 38, United States Code in effect on December 31, 1978, applicable to section 306
pension.
NOTE: The pension provisions of title 38, United States Code, as in effect on December
31, 1978, are available in any VA regional office.)
(4) Improved death pension, Public Law 95-588. A benefit payable by the Department of
Veterans Affairs to a veteran's surviving spouse or child because of the veteran's
nonservice-connected death. Payments are made monthly unless the amount of the annual
benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38
U.S.C. 1521(b), in which case payments may be made less frequently than monthly.
Basic entitlement exists if:
(i) The veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in
paragraph (a)(3)(i), (ii), (iii), or (iv) of this section (38 U.S.C. 1541(a)); or
(ii) The veteran was, at time of death, receiving or entitled to receive compensation or
retired pay for a service-connected disability based on service during a period of war.
(The qualifying periods of war are specified in paragraph (a)(3) of this section.) (38
U.S.C. 1541(a)); and
(iii) The surviving spouse or child meets the net worth requirements of § 3.274 and has
an annual income not in excess of the applicable maximum annual pension rate specified
in §§ 3.23 and 3.24.
(Authority: 38 U.S.C. 1541 and 1542)
[44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56 FR 22910,
May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34539,
34541, June 10, 2003]
[EFFECTIVE DATE NOTE: 68 FR 34539, 34541, June 10, 2003, amended paragraph
(a)(3), effective June 10, 2003.]
CROSS REFERENCES: Section 306 pension. See § 3.1(u). Improved pension. See §
3.1(w). Improved pension rates. See § 3.23. Improved pension rates; surviving children.
See § 3.24. Frequency of payment of improved pension. See § 3.30. Relationship of net
worth to pension entitlement. See § 3.274.
xvi
§ 3.4 Compensation.
Discussion and Analysis in the Veterans Benefits Manual
(a) Compensation. This term means a monthly payment made by the Department of
Veterans Affairs to a veteran because of service-connected disability, or to a surviving
spouse, child, or parent of a veteran because of the service-connected death of the veteran
occurring before January 1, 1957, or under the circumstances outlined in paragraph (c)(2)
of this section. If the veteran was discharged or released from service, the discharge or
release must have been under conditions other than dishonorable .
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 101(2), (13))
(b) Disability compensation. (1) Basic entitlement for a veteran exists if the veteran is
disabled as the result of a personal injury or disease (including aggravation of a condition
existing prior to service) while in active service if the injury or the disease was incurred
or aggravated in line of duty.
(Authority: 38 U.S.C. 1110, 1131)
(2) An additional amount of compensation may be payable for a spouse, child, and/or
dependent parent where a veteran is entitled to compensation based on disability
evaluated as 30 per centum or more disabling.
(Authority: 38 U.S.C. 1115)
(c) Death compensation. Basic entitlement exists for a surviving spouse, child or children,
and dependent parent or parents if:
(1) The veteran died before January 1, 1957; or
(2) The veteran died on or after May 1, 1957, and before January 1, 1972, if at the time of
death a policy of United States Government Life Insurance or National Service Life
Insurance was in effect under waiver of premiums under 38 U.S.C. 1924 unless the
waiver was granted under the first proviso of section 622(a) of the National Service Life
Insurance Act of 1940, and the veteran died before return to military jurisdiction or
within 120 days thereafter. (See § 3.5(d) as to Public Health Service.)
[26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39 FR 34529,
Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979]
(38 U.S.C. 1121, 1141)
xvii
§ 3.5 Dependency and indemnity compensation.
Discussion and Analysis in the Veterans Benefits Manual
(a) Dependency and indemnity compensation. This term means a monthly payment made
by the Department of Veterans Affairs to a surviving spouse, child, or parent:
(1) Because of a service-connected death occurring after December 31, 1956, or
(2) Pursuant to the election of a surviving spouse, child, or parent, in the case of such a
death occurring before January 1, 1957.
(Authority: 38 U.S.C. 101 (14))
(b) Entitlement. Basic entitlement for a surviving spouse, child or children, and parent or
parents of a veteran exists, if:
(1) Death occurred on or after January 1, 1957, except in the situation specified in §
3.4(c)(2); or
(2) Death occurred prior to January 1, 1957, and the claimant was receiving or eligible to
receive death compensation on December 31, 1956 (or, as to a parent, would have been
eligible except for income), under laws in effect on that date or who subsequently
becomes eligible by reason of a death which occurred prior to January 1, 1957; or
(3) Death occurred on or after May 1, 1957, and before January 1, 1972, and the claimant
had been ineligible to receive dependency and indemnity compensation because of the
exception in subparagraph (1) of this paragraph. In such case dependency and indemnity
compensation is payable upon election. (38 U.S.C. 410, 416, 417, Public Law 92-197, 85
Stat. 660)
(c) Exclusiveness of remedy. No person eligible for dependency and indemnity
compensation by reason of a death occurring on or after January 1, 1957, shall be eligible
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
by reason of such death for death pension or compensation under any other law
administered by the Department of Veterans Affairs, except that, effective November 2,
1994, a surviving spouse who is receiving dependency and indemnity compensation may
elect to receive death pension instead of such compensation.
(Authority: 38 U.S.C. 1317)
(d) Group life insurance. No dependency and indemnity compensation or death
compensation shall be paid to any surviving spouse, child or parent based on the death of
a commissioned officer of the Public Health Service, the Coast and Geodetic Survey, the
Environmental Science Services Administration, or the National Oceanic and
Atmospheric Administration occuring on or after May 1, 1957, if any amounts are
payable under the Federal Employees' Group Life Insurance Act of 1954 (Pub. L. 598,
83d Cong., as amended) based on the same death.
(Authority: Sec. 501(c)(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as amended by Sec.
13(u), Pub. L. 85-857; (72 Stat. 1266); Sec. 5, Pub. L. 91-621 (84 Stat. 1863))
(e) [Removed]
[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37 FR 6676,
Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979; 58 FR 25561,
Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR 72211,
December 2, 2005]
38 U.S.C. 501(a).
xviii
§ 3.6 Duty periods.
Discussion and Analysis in the Veterans Benefits Manual
(a) Active military, naval, and air service. This includes active duty, any period of active
duty for training during which the individual concerned was disabled or died from a
disease or injury incurred or aggravated in line of duty, and any period of inactive duty
training during which the individual concerned was disabled or died from an injury
incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac
arrest, or a cerebrovascular accident which occurred during such training.
(Authority: 38 U.S.C. 101(24))
(b) Active duty. This means:
(1) Full-time duty in the Armed Forces, other than active duty for training;
(2) Full-time duty (other than for training purposes) as a commissioned officer of the
Regular or Reserve Corps of the Public Health Service:
(i) On or after July 29, 1945, or
(ii) Before that date under circumstances affording entitlement to full military benefits, or
(iii) At any time, for the purposes of dependency and indemnity compensation.
(3) Full-time duty as a commissioned officer of the Coast and Geodetic Survey or of its
successor agencies, the Environmental Science Services Administration and the National
Oceanic and Atmospheric Administration:
(i) On or after July 29, 1945, or
(ii) Before that date:
(a) While on transfer to one of the Armed Forces, or
(b) While, in time of war or national emergency declared by the President, assigned to
duty on a project for one of the Armed Forces in an area determined by the Secretary of
Defense to be of immediate military hazard, or
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(c) In the Philippine Islands on December 7, 1941, and continuously in such islands
thereafter, or
(iii) At any time, for the purposes of dependency and indemnity compensation.
(4) Service at any time as a cadet at the United States Military, Air Force, or Coast Guard
Academy, or as a midshipman at the United States Naval Academy;
(5) Attendance at the preparatory schools of the United States Air Force Academy, the
United States Military Academy, or the United States Naval Academy for enlisted
active-duty members who are reassigned to a preparatory school without a release from
active duty, and for other individuals who have a commitment to active duty in the
Armed Forces that would be binding upon disenrollment from the preparatory school;
(6) Authorized travel to or from such duty or service; and
(7) A person discharged or released from a period of active duty, shall be deemed to have
continued on active duty during the period of time immediately following the date of
such discharge or release from such duty determined by the Secretary concerned to have
been required for him or her to proceed to his or her home by the most direct route, and,
in all instances, until midnight of the date of such discharge or release.
(Authority: 38 U.S.C. 106(c))
(c) Active duty for training. (1) Full-time duty in the Armed Forces performed by
Reserves for training purposes;
(2) Full-time duty for training purposes performed as a commissioned officer of the
Reserve Corps of the Public Health Service:
(i) On or after July 29, 1945, or
(ii) Before that date under circumstances affording entitlement to full military benefits, or
(iii) At any time, for the purposes of dependency and indemnity compensation:
(3) Full-time duty performed by members of the National Guard of any State, under 32
U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law or
full-time duty by such members while participating in the reenactment of the Battle of
First Manassas in July 1961;
(4) Duty performed by a member of a Senior Reserve Officers' Training Corps program
when ordered to such duty for the purpose of training or a practice cruise under chapter
103 of title 10 U.S.C.
(i) The requirements of this paragraph are effective -(A) On or after October 1, 1982, with respect to deaths and disabilities resulting from
diseases or injuries incurred or aggravated after September 30, 1982, and
(B) October 1, 1983, with respect to deaths and disabilities resulting from diseases or
injuries incurred or aggravated before October 1, 1982.
(ii) Effective on or after October 1, 1988, such duty must be prerequisite to the member
being commissioned and must be for a period of at least four continuous weeks.
(Authority: 38 U.S.C. 101(22)(D) as amended by Pub. L. 100-456)
(5) Attendance at the preparatory schools of the United States Air Force Academy, the
United States Military Academy, or the United States Naval Academy by an individual
who enters the preparatory school directly from the Reserves, National Guard or civilian
life, unless the individual has a commitment to service on active duty which would be
binding upon disenrollment from the preparatory school.
(6) Authorized travel to or from such duty.
(Authority: 38 U.S.C. 101(22))
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The term does not include duty performed as a temporary member of the Coast Guard
Reserve.
(d) Inactive duty training. This means: (1) Duty (other than full-time duty) prescribed for
Reserves (including commissioned officers of the Reserve Corps of the Public Health
Service) by the Secretary concerned under 37 U.S.C. 206 or any other provision of law;
(2) Special additional duties authorized for Reserves (including commissioned officers of
the Reserve Corps of the Public Health Service) by an authority designated by the
Secretary concerned and performed by them on a voluntary basis in connection with the
prescribed training or maintenance activities of the units to which they are assigned; and
(3) Training (other than active duty for training) by a member of, or applicant for
membership (as defined in 5 U.S.C. 8140(g)) in, the Senior Reserve Officers' Training
Corps prescribed under chapter 103 of title 10 U.S.C.
(4) Duty (other than full-time duty) performed by a member of the National Guard of any
State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions
of law. The term inactive duty training does not include:
(i) Work or study performed in connection with correspondence courses,
(ii) Attendance at an educational institution in an inactive status, or
(iii) Duty performed as a temporary member of the Coast Guard Reserve.
(Authority: 38 U.S.C. 101(23))
(e) Travel status -- training duty (disability or death from injury or covered disease). Any
individual:
(1) Who, when authorized or required by competent authority, assumes an obligation to
perform active duty for training or inactive duty training; and
(2) Who is disabled or dies from an injury or covered disease incurred while proceeding
directly to or returning directly from such active duty for training or inactive duty training
shall be deemed to have been on active duty for training or inactive duty training, as the
case may be. The Department of Veterans Affairs will determine whether such individual
was so authorized or required to perform such duty, and whether the individual was
disabled or died from an injury or covered disease so incurred. In making such
determinations, there shall be taken into consideration the hour on which the individual
began to proceed or return; the hour on which the individual was scheduled to arrive for,
or on which the individual ceased to perform, such duty; the method of travel performed;
the itinerary; the manner in which the travel was performed; and the immediate cause of
disability or death. Whenever any claim is filed alleging that the claimant is entitled to
benefits by reason of this paragraph, the burden of proof shall be on the claimant.
(3) For purposes of this section, the term covered disease means any of the following:
(i) An acute myocardial infarction.
(ii) A cardiac arrest.
(iii) A cerebrovascular accident.
(Authority: 38 U.S.C. 106(d))
[26 FR 1564, Feb. 24, 1961, as amended at 26 FR 6767, July 28, 1961; 27 FR 4023, Apr.
27, 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20, 1971; 41 FR 26881, June 29,
1976; 49 FR 47003, Nov. 30, 1984; 54 FR 51200, Dec. 13, 1989; 55 FR 23931, June 13,
1990; 60 FR 57178, 57179, Nov. 14, 1995; 61 FR 11731, March 22, 1996; 66 FR 48558,
48560, Sept. 21, 2001; 67 FR 49584, 49585, July 31, 2002]
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[EFFECTIVE DATE NOTE: 66 FR 48558, 48560, Sept. 21, 2001, revised paragraphs (a)
and (e), effective Nov. 1, 2000; 67 FR 49584, 49585, July 31, 2002, amended this section,
effective July 31, 2002.]
§ 3.7 Individuals and groups considered to have performed active military, naval,
or air service.
xix
Discussion and Analysis in the Veterans Benefits Manual
The following individuals and groups are considered to have performed active military,
naval, or air service:
(a) Aerial transportation of mail (Pub. L. 140, 73d Congress). Persons who were injured
or died while serving under conditions set forth in Pub. L. 140, 73d Congress.
(b) Aliens. Effective July 28, 1959, a veteran discharged for alienage during a period of
hostilities unless evidence affirmatively shows he or she was discharged at his or her own
request. A veteran who was discharged for alienage after a period of hostilities and whose
service was honest and faithful is not barred from benefits if he or she is otherwise
entitled. A discharge changed prior to January 7, 1957, to honorable by a board
established under authority of section 301, Pub. L. 346, 78th Congress, as amended, or
section 207, Pub. L. 601, 79th Congress, as amended (now 10 U.S.C. 1552 and 1553),
will be considered as evidence that the discharge was not at the alien's request. (See §
3.12.)
(Authority: 38 U.S.C. 5303(c))
(c) Army field clerks. Included as enlisted men.
(d) Army Nurse Corps, Navy Nurse Corps, and female dietetic and physical therapy
personnel. (1) Army and Navy nurses (female) on active service under order of the
service department.
(2) Dietetic and physical therapy (female) personnel, excluding students and apprentices,
appointed with relative rank on or after December 22, 1942, or commissioned on or after
June 22, 1944.
(e) Aviation camps. Students who were enlisted men during World War I.
(f) Cadets and midshipmen. See § 3.6(b)(4).
(g) Coast and Geodetic Survey, and its successor agencies, the Environmental Science
Services Administration and the National Oceanic and Atmospheric Administration. See
§ 3.6(b)(3).
(h) Coast Guard. Active service in Coast Guard on or after January 29, 1915, while under
jurisdiction of the Treasury Department, Navy Department, or the Department of
Transportation. (See § 3.6 (c) and (d) as to temporary members of the Coast Guard
Reserves.)
(i) Contract surgeons. For compensation and dependency and indemnity compensation, if
the disability or death was the result of disease or injury contracted in line of duty during
a war period while actually performing the duties of assistant surgeon or acting assistant
surgeon with any military force in the field, or in transit or in hospital.
(j) Field clerks, Quartermaster Corps. Included as enlisted men.
(k) Lighthouse service personnel. Transferred to the service and jurisdiction of War or
Navy Departments by Executive order under the Act of August 29, 1916. Effective July 1,
1939, service was consolidated with the Coast Guard.
(l) Male nurses. Persons who were enlisted men of Medical Corps.
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(m) National Guard. Members of the National Guard of the United States and Air
National Guard of the United States are included as Reserves. See § 3.6 (c) and (d) as to
training duty performed by members of a State National Guard and paragraph (o) of this
section as to disability suffered after being called into Federal service and before
enrollment.
(n) Persons heretofore having a pensionable or compensable status.
(Authority: 38 U.S.C. 1152, 1504)
(o) Persons ordered to service. (1) Any person who has:
(i) Applied for enlistment or enrollment in the active military, naval, or air service and
who is provisionally accepted and directed, or ordered, to report to a place for final
acceptance into the service, or
(ii) Been selected or drafted for such service, and has reported according to a call from
the person's local draft board and before final rejection, or
(iii) Been called into Federal service as a member of the National Guard, but has not been
enrolled for Federal service, and
(iv) Suffered injury or disease in line of duty while going to, or coming from, or at such
place for final acceptance or entry upon active duty,
is considered to have been on active duty and therefore to have incurred such disability in
active service.
(2) The injury or disease must be due to some factor relating to compliance with proper
orders. Draftees and selectees are included when reporting for preinduction examination
or for final induction on active duty. Such persons are not included for injury or disease
suffered during the period of inactive duty, or period of waiting, after a final physical
examination and prior to beginning the trip to report for induction. Members of the
National Guard are included when reporting to a designated rendezvous.
(p) Philippine Scouts and others. See § 3.40.
(q) Public Health Service. See § 3.6 (a) and (b).
(r) Reserves. See § 3.6 (a), (b), and (c).
(s) Revenue Cutter Service. While serving under direction of Secretary of the Navy in
cooperation with the Navy.
(t) Training camps. Members of training camps authorized by section 54 of the National
Defense Act, except members of Student Army Training Corps Camps at the Presidio of
San Francisco, Plattsburg, New York, Fort Sheridan, Illinois, Howard University,
Washington, D.C., Camp Perry, Ohio, and Camp Hancock, Georgia, from July 18, 1918,
to September 16, 1918.
(u) Women's Army Corps (WAC). Service on or after July 1, 1943.
(v) Women's Reserve of Navy, Marine Corps, and Coast Guard. Same benefits as
members of the Officers Reserve Corps or enlisted men of the United States Navy,
Marine Corps or Coast Guard.
(w) Russian Railway Service Corps. Service during World War I as certified by the
Secretary of the Army.
(x) Active military service certified as such under section 401 of Pub. L. 95-202. Such
service if certified by the Secretary of Defense as active military service and if a
discharge under honorable conditions is issued by the Secretary. The effective dates for
an award based upon such service shall be as provided by § 3.400(z) and 38 U.S.C. 5110,
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
except that in no event shall such an award be made effective earlier than November 23,
1977. Service in the following groups has been certified as active military service.
(1) Women's Air Forces Service Pilots (WASP).
(2) Signal Corps Female Telephone Operators Unit of World War I.
(3) Engineer Field Clerks (WWI).
(4) Women's Army Auxiliary Corps (WAAC).
(5) Quartermaster Corps Female Clerical Employees serving with the AEF (American
Expeditionary Forces) in World War I.
(6) Civilian Employees of Pacific Naval Air Bases Who Actively Participated in Defense
of Wake Island During World War II.
(7) Reconstruction Aides and Dietitians in World War I.
(8) Male Civilian Ferry Pilots.
(9) Wake Island Defenders from Guam.
(10) Civilian Personnel Assigned to the Secret Intelligence Element of the OSS.
(11) Guam Combat Patrol.
(12) Quartermaster Corps Keswick Crew on Corregidor (WWII).
(13) U.S. Civilian Volunteers Who Actively Participated in the Defense of Bataan.
(14) United States Merchant Seamen Who Served on Blockships in Support of Operation
Mulberry.
(15) American Merchant Marine in Oceangoing Service during the Period of Armed
Conflict, December 7, 1941, to August 15, 1945.
(16) Civilian Navy IFF Technicians Who Served in the Combat Areas of the Pacific
during World War II (December 7, 1941 to August 15, 1945). As used in the official
name of this group, the acronym IFF stands for Identification Friend or Foe.
(17) U.S. Civilians of the American Field Service (AFS) Who Served Overseas
Operationally in World War I during the Period August 31, 1917 to January 1, 1918.
(18) U.S. Civilians of the American Field Service (AFS) Who Served Overseas Under
U.S. Armies and U.S. Army Groups in World War II during the Period December 7, 1941
through May 8, 1945.
(19) U.S. Civilian Employees of American Airlines Who Served Overseas as a Result of
American Airlines' Contract with the Air Transport Command During the Period
December 14, 1941 through August 14, 1945.
(20) Civilian Crewmen of United States Coast and Geodetic Survey (USCGS) Vessels
Who Performed Their Service in Areas of Immediate Military Hazard While
Conducting Cooperative Operations with and for the United States Armed Forces
Within a Time Frame of December 7, 1941, to August 15, 1945 on a qualifying
USCGS vessel. Qualifying USCGS vessels are the Derickson, Explorer, Gilbert,
Hilgard, E. Lester Jones, Lydonia, Patton, Surveyor, Wainwright, Westdahl,
Oceanographer, Hydrographer, and Pathfinder.
(21) Honorably Discharged Members of the American Volunteer Group (Flying Tigers)
Who Served During the Period December 7, 1941 to July 18, 1942.
(22) U.S. Civilian Flight Crew and Aviation Ground Support Employees of United Air
Lines (UAL), Who Served Overseas as a Result of UAL's Contract With the Air
Transport Command During the Period December 14, 1941, through August 14, 1945.
(23) U.S. Civilian Flight Crew and Aviation Ground Support Employees of
Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
TWA's Contract with the Air Transport Command During the Period December 14,
1941, through August 14, 1945. The ``Flight Crew'' includes pursers.
(24) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Consolidated
Vultree Aircraft Corporation (Consairway Division) Who Served Overseas as a Result of
a Contract With the Air Transport Command During the Period December 14, 1941,
through August 14, 1945.
(25) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Pan
American World Airways and Its Subsidiaries and Affiliates, Who Served Overseas as a
Result of Pan American's Contract With the Air Transport Command and Naval Air
Transport Service During the Period December 14, 1941 through August 14, 1945.
(26) Honorably Discharged Members of the American Volunteer Guard, Eritrea Service
Command During the Period June 21, 1942 to March 31, 1943.
(27) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Northwest
Airlines, Who Served Overseas as a Result of Northwest Airline's Contract with the Air
Transport Command during the Period December 14, 1941 through August 14, 1945.
(28) U.S. Civilian Female Employees of the U.S. Army Nurse Corps While Serving in
the Defense of Bataan and Corregidor During the Period January 2, 1942 to February 3,
1945.
(29) U.S. Flight Crew and Aviation Ground Support Employees of Northeast Airlines
Atlantic Division, Who Served Overseas as a Result of Northeast Airlines' Contract With
the Air Transport Command During the Period December 7, 1941, Through August 14,
1945.
(30) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Braniff
Airways, Who Served Overseas in the North Atlantic or Under the Jurisdiction of the
North Atlantic Wing, Air Transport Command (ATC), as a Result of a Contract With the
ATC During the Period February 26, 1942, Through August 14, 1945.
(31) The approximately 50 Chamorro and Carolinian former native policemen who
received military training in the Donnal area of central Saipan and were placed under
the command of Lt. Casino of the 6th Provisional Military Police Battalion to
accompany United States Marines on active, combat-patrol activity from August 19,
1945, to September 2, 1945.
(32) Three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz,
who assisted the United States Marines in the offensive operations against the Japanese
on the Northern Mariana Islands from June 19, 1944, through September 2, 1945.
(33) The Operational Analysis Group of the Office of Scientific Research and
Development, Office of Emergency Management, which served overseas with the U.S.
Army Air Corps from December 7, 1941, through August 15, 1945.
(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1450)
(y) Alaska Territorial Guard: Members of the Alaska Territorial Guard during World
War II who were honorably discharged from such service as determined by the
Secretary of Defense.
[26 FR 1565, Feb. 24, 1961; 51 FR 6410 (1986); 53 FR 16876, 45907 (1988); 56 FR
5756, 65848 (1991); 57 FR 43904, 43905, 60734 (1992); 59 FR 34383, July 5, 1994; 63
FR 413, Jan. 6, 1998; 71 FR 29080, May 19, 2006]
38 U.S.C. 501(a).
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CROSS REFERENCE: Office of Workers' Compensation Programs. See § 3.708.
§ 3.10 Dependency and indemnity compensation rate for a surviving spouse.
(a) General determination of rate. When VA grants a surviving spouse entitlement to
DIC, VA will determine the rate of the benefit it will award. The rate of the benefit will
be the total of the basic monthly rate specified in paragraph (b) or (d) of this section and
any applicable increases specified in paragraph (c) or (e) of this section.
(b) Basic monthly rate. Except as provided in paragraph (d) of this section, the basic
monthly rate of DIC for a surviving spouse will be the amount set forth in 38 U.S.C.
1311(a)(1).
(c) Section 1311(a)(2) increase. The basic monthly rate under paragraph (b) of this
section shall be increased by the amount specified in 38 U.S.C. 1311(a)(2) if the
veteran, at the time of death, was receiving, or was entitled to receive, compensation for
service- connected disability that was rated by VA as totally disabling for a continuous
period of at least eight years immediately preceding death. Determinations of
entitlement to this increase shall be made in accordance with paragraph (f) of this
section.
(d) Alternative basic monthly rate for death occurring prior to January 1, 1993. The
basic monthly rate of DIC for a surviving spouse when the death of the veteran
occurred prior to January 1, 1993, will be the amount specified in 38 U.S.C. 1311(a)(3)
corresponding to the veteran's pay grade in service, but only if such rate is greater than
the total of the basic monthly rate and the section 1311(a)(2) increase (if applicable) the
surviving spouse is entitled to receive under paragraphs (b) and (c) of this section. The
Secretary of the concerned service department will certify the veteran's pay grade and
the certification will be binding on VA. DIC paid pursuant to this paragraph may not
be increased by the section 1311(a)(2) increase under paragraph (c) of this section.
(e) Additional increases. One or more of the following increases may be paid in
addition to the basic monthly rate and the section 1311(a)(2) increase.
(1) Increase for children. If the surviving spouse has one or more children under the age
of 18 of the deceased veteran (including a child not in the surviving spouse's actual or
constructive custody, or a child who is in active military service), the monthly DIC rate
will be increased by the amount set forth in 38 U.S.C. 1311(b) for each child.
(2) Increase for regular aid and attendance. If the surviving spouse is determined to be
in need of regular aid and attendance under the criteria in Sec. 3.352 or is a patient in
a nursing home, the monthly DIC rate will be increased by the amount set forth in 38
U.S.C. 1311(c).
(3) Increase for housebound status. If the surviving spouse does not qualify for the
regular aid and attendance allowance but is housebound under the criteria in Sec.
3.351(f), the monthly DIC rate will be increased by the amount set forth in 38 U.S.C.
1311(d).
(4) For a two-year period beginning on the date entitlement to dependency and
indemnity compensation commenced, the dependency and indemnity compensation
paid monthly to a surviving spouse with one or more children below the age of 18 shall
be increased by the amount set forth in 38 U.S.C. 1311(e), regardless of the number of
such children. The dependency and indemnity compensation payable under this
paragraph is in addition to any other dependency and indemnity compensation
payable. The increase in dependency and indemnity compensation of a surviving
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
spouse under this paragraph shall cease beginning with the first month commencing
after the month in which all children of the surviving spouse have attained the age of
18.
(Authority: 38 U.S.C. 1311(e))
(f) Criteria governing section 1311(a)(2) increase. In determining whether a surviving
spouse qualifies for the section 1311(a)(2) increase under paragraph (c) of this section,
the following standards shall apply.
(1) Marriage requirement. The surviving spouse must have been married to the veteran
for the entire eight-year period referenced in paragraph (c) of this section in order to
qualify for the section 1311(a)(2) increase.
(2) Determination of total disability. As used in paragraph (c) of this section, the phrase
``rated by VA as totally disabling'' includes total disability ratings based on
unemployability (Sec. 4.16 of this chapter).
(3) Definition of ``entitled to receive''. As used in paragraph (c) of this section, the
phrase ``entitled to receive'' means that the veteran filed a claim for disability
compensation during his or her lifetime and one of the following circumstances is
satisfied:
(i) The veteran would have received total disability compensation for the period
specified in paragraph (c) of this section but for clear and unmistakable error committed
by VA in a decision on a claim filed during the veteran's lifetime; or
(ii) Additional evidence submitted to VA before or after the veteran's death, consisting
solely of service department records that existed at the time of a prior VA decision but
were not previously considered by VA, provides a basis for reopening a claim finally
decided during the veteran's lifetime and for awarding a total service-connected disability
rating retroactively in accordance with Sec. Sec. 3.156(c) and 3.400(q)(2) of this part
for the period specified in paragraph (c) of this section; or
(iii) At the time of death, the veteran had a service-connected disability that was
continuously rated totally disabling by VA for the period specified in paragraph (c) of
this section, but was not receiving compensation because:
(A) VA was paying the compensation to the veteran's dependents;
(B) VA was withholding the compensation under the authority of 38 U.S.C. 5314 to
offset an indebtedness of the veteran;
(C) The veteran had not waived retired or retirement pay in order to receive
compensation;
(D) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);
(E) VA was withholding payments because the veteran's whereabouts were unknown,
but the veteran was otherwise entitled to continued payments based on a total
service-connected disability rating; or
(F) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits
were payable under 38 U.S.C. 5309.
[70 FR 72211, December 2, 2005; 71 FR 44915, August 8, 2006]
(Authority: 38 U.S.C. 501(a), 1311, 1314, and 1321).
§ 3.11 Homicide.
Any person who has intentionally and wrongfully caused the death of another person is
not entitled to pension, compensation, or dependency and indemnity compensation or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
increased pension, compensation, or dependency and indemnity compensation by reason
of such death. For the purpose of this section the term dependency and indemnity
compensation includes benefits at dependency and indemnity compensation rates paid
under 38 U.S.C. 1318.
[44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989]
38 U.S.C. 501(a).
xx
§ 3.12 Character of discharge.
Discussion and Analysis in the Veterans Benefits Manual
(a) If the former service member did not die in service, pension, compensation, or
dependency and indemnity compensation is not payable unless the period of service on
which the claim is based was terminated by discharge or release under conditions other
than dishonorable. (38 U.S.C. 101(2)). A discharge under honorable conditions is binding
on the Department of Veterans Affairs as to character of discharge.
(b) A discharge or release from service under one of the conditions specified in this
section is a bar to the payment of benefits unless it is found that the person was insane at
the time of committing the offense causing such discharge or release or unless otherwise
specifically provided (38 U.S.C. 5303(b)).
(c) Benefits are not payable where the former service member was discharged or released
under one of the following conditions:
(1) As a conscientious objector who refused to perform military duty, wear the uniform,
or comply with lawful order of competent military authorities.
(2) By reason of the sentence of a general court-martial.
(3) Resignation by an officer for the good of the service.
(4) As a deserter.
(5) As an alien during a period of hostilities, where it is affirmatively shown that the
former service member requested his or her release. See § 3.7(b).
(6) By reason of a discharge under other than honorable conditions issued as a result of
an absence without official leave (AWOL) for a continuous period of at least 180 days.
This bar to benefit entitlement does not apply if there are compelling circumstances to
warrant the prolonged unauthorized absence. This bar applies to any person awarded an
honorable or general discharge prior to October 8, 1977, under one of the programs listed
in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not
otherwise established basic eligibility to receive Department of Veterans Affairs benefits.
The term established basic eligibility to receive Department of Veterans Affairs benefits
means either a Department of Veterans Affairs determination that an other than honorable
discharge was issued under conditions other than dishonorable, or an upgraded honorable
or general discharge issued prior to October 8, 1977, under criteria other than those
prescribed by one of the programs listed in paragraph (h) of this section. However, if a
person was discharged or released by reason of the sentence of a general court-martial,
only a finding of insanity (paragraph (b) of this section) or a decision of a board of
correction of records established under 10 U.S.C. 1552 can estalish basic eligibility to
receive Department of Veterans Affairs benefits. The following factors will be considered
in determining whether there are compelling circumstances to warrant the prolonged
unauthorized absence.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(i) Length and character of service exclusive of the period of prolonged AWOL. Service
exclusive of the period of prolonged AWOL should generally be of such quality and
length that it can be characterized as honest, faithful and meritorious and of benefit to the
Nation.
(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when
offered by the claimant include family emergencies or obligations, or similar types of
obligations or duties owed to third parties. The reasons for going AWOL should be
evaluated in terms of the person's age, cultural background, educational level and
judgmental maturity. Consideration should be given to how the situation appeared to the
person himself or herself, and not how the adjudicator might have reacted. Hardship or
suffering incurred during overseas service, or as a result of combat wounds of other
service-incurred or aggravated disability, is to be carefully and sympathetically
considered in evaluating the person's state of mind at the time the prolonged AWOL
period began.
(iii) A valid legal defense exists for the absence which would have precluded a conviction
for AWOL. Compelling circumstances could occur as a matter of law if the absence
could not validly be charged as, or lead to a conviction of, an offense under the Uniform
Code of Military Justice. For purposes of this paragraph the defense must go directly to
the substantive issue of absence rather than to procedures, technicalities or formalities.
(d) A discharge or release because of one of the offenses specified in this paragraph is
considered to have been issued under dishonorable conditions.
(1) Acceptance of an undesirable discharge to escape trial by general court-martial.
(2) Mutiny or spying.
(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.
(4) Willful and persistent misconduct. This includes a discharge under other than
honorable conditions, if it is determined that it was issued because of willful and
persistent misconduct. A discharge because of a minor offense will not, however, be
considered willful and persistent misconduct if service was otherwise honest, faithful and
meritorious.
(5) Homosexual acts involving aggravating circumstances or other factors affecting the
performance of duty. Examples of homosexual acts involving aggravating circumstances
or other factors affecting the performance of duty include child molestation, homosexual
prostitution, homosexual acts or conduct accompanied by assault or coercion, and
homosexual acts or conduct taking place between service members of disparate rank,
grade, or status when a service member has taken advantage of his or her superior rank,
grade, or status.
(e) An honorable discharge or discharge under honorable conditions issued through a
board for correction of records established under authority of 10 U.S.C. 1552 is final and
conclusive on the Department of Veterans Affairs. The action of the board sets aside any
prior bar to benefits imposed under paragraph (c) or (d) of this section.
(f) An honorable or general discharge issued prior to October 8, 1977, under authority
other than that listed in paragraphs (h) (1), (2) and (3) of this section by a discharge
review board established under 10 U.S.C. 1553 set aside any bar to benefits imposed
under paragraph (c) or (d) of this section except the bar contained in paragraph (c)(2) of
this section.
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(g) An honorable or general discharge issued on or after October 8, 1977, by a discharge
review board established under 10 U.S.C. 1553, sets aside a bar to benefits imposed
under paragraph (d), but not paragraph (c), of this section provided that:
(1) The discharge is upgraded as a result of an individual case review;
(2) The discharge is upgraded under uniform published standards and procedures that
generally apply to all persons administratively discharged or released from active military,
naval or air service under conditions other than honorable; and
(3) Such standards are consistent with historical standards for determining honorable
service and do not contain any provision for automatically granting or denying an
upgraded discharge.
(h) Unless a discharge review board established under 10 U.S.C. 1553 determines on an
individual case basis that the discharge would be upgraded under uniform standards
meeting the requirements set forth in paragraph (g) of this section, an honorable or
general discharge awarded under one of the following programs does not remove any bar
to benefits imposed under this section:
(1) The President's directive of January 19, 1977, implementing Presidential
Proclamation 4313 of September 16, 1974; or
(2) The Department of Defense's special discharge review program effective April 5,
1977; or
(3) Any discharge review program implemented after April 5, 1977, that does not apply
to all persons administratively discharged or released from active military service under
other than honorable conditions.
(Authority: 38 U.S.C. 5303 (e))
(i) No overpayments shall be created as a result of payments made after October 8, 1977,
based on an upgraded honorable or general discharge issued under one of the programs
listed in paragraph (h) of this section which would not be awarded under the standards set
forth in paragraph (g) of this section. Accounts in payment status on or after October 8,
1977, shall be terminated the end of the month in which it is determined that the original
other than honorable discharge was not issued under conditions other than dishonorable
following notice from the appropriate discharge review board that the discharge would
not have been upgraded under the standards set forth in paragraph (g) of this section, or
April 7, 1978, whichever is the earliest. Accounts in suspense (either before or after
October 8, 1977) shall be terminated on the date of last payment or April 7, 1978,
whichever is the earliest.
(j) No overpayment shall be created as a result of payments made after October 8, 1977,
in cases in which the bar contained in paragraph (c)(6) of this section is for application.
Accounts in payment status on or after October 8, 1977, shall be terminated at the end of
the month in which it is determined that compelling circumstances do not exist, or April 7,
1978, whichever is the earliest. Accounts in suspense (either before or after October 8,
1977) shall be terminated on the date of last payment, or April 7, 1978, whichever is the
earliest.
(k) Uncharacterized separations. Where enlisted personnel are administratively separated
from service on the basis of proceedings initiated on or after October 1, 1982, the
separation may be classified as one of the three categories of administrative separation
that do not require characterization of service by the military department concerned. In
such cases conditions of discharge will be determined by the VA as follows:
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
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(1) Entry level separation. Uncharacterized administrative separations of this type shall
be considered under conditions other than dishonorable.
(2) Void enlistment or induction. Uncharacterized administrative separations of this type
shall be reviewed based on facts and circumstances surrounding separation, with
reference to the provisions of § 3.14 of this part, to determine whether separation was
under conditions other than dishonorable.
(3) Dropped from the rolls. Uncharacterized administrative separations of this type shall
be reviewed based on facts and circumstances surrounding separation to determine
whether separation was under conditions other than dishonorable.
[28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43 FR 15153, Apr.
11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2, 1984; 62 FR 14822, 14823,
March 28, 1997]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 62 FR 14822, 14823, March 28, 1997, revised paragraphs
(g) and (h), effective March 28, 1997.]
CROSS REFERENCES: Validity of enlistments. See § 3.14. Revision of decisions. See §
3.105. Effective dates. See § 3.400(g). Minimum active-duty service requirement. See §
3.12a.
§ 3.12a Minimum active-duty service requirement.
(a) Definitions. (1) The term minimum period of active duty means, for the purposes of
this section, the shorter of the following periods.
(i) Twenty-four months of continuous active duty. Non-duty periods that are excludable
in determining the Department of Veterans Affairs benefit entitlement (e.g., see § 3.15)
are not considered as a break in service for continuity purposes but are to be subtracted
from total time served.
(ii) The full period for which a person was called or ordered to active duty.
(2) The term benefit includes a right or privilege but does not include a refund of a
participant's contributions under 38 U.S.C. Ch. 32.
(b) Effect on Department of Veterans Affairs benefits. Except as provided in paragraph (d)
of this section, a person listed in paragraph (c) of this section who does not complete a
minimum period of active duty is not eligible for any benefit under title 38, United States
Code or under any law administered by the Department of Veterans Affairs based on that
period of active service.
(c) Persons included. Except as provided in paragraph (d) of this section, the provisions
of paragraph (b) of this section apply to the following persons:
(1) A person who originally enlists (enlisted person only) in a regular component of the
Armed Forces after September 7, 1980 (a person who signed a delayed-entry contract
with one of the service branches prior to September 8, 1980, and under that contract was
assigned to a reserve component until entering on active duty after September 7, 1980,
shall be considered to have enlisted on the date the person entered on active duty); and
(2) Any other person (officer as well as enlisted) who enters on active duty after October
16, 1981 and who has not previously completed a continuous period of active duty of at
least 24 months or been discharged or released from active duty under 10 U.S.C. 1171
(early out).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(d) Exclusions. The provisions of paragraph (b) of this section are not applicable to the
following cases:
(1) To a person who is discharged or released under 10 U.S.C. 1171 or 1173 (early out or
hardship discharge).
(2) To a person who is discharged or released from active duty for a disability adjudged
service connected without presumptive provisions of law, or who at time of discharge had
such a service-connected disability, shown by official service records, which in medical
judgment would have justified a discharge for disability.
(3) To a person with a compensable service-connected disability.
(4) To the provision of a benefit for or in connection with a service-connected disability,
condition, or death.
(5) To benefits under chapter 19 of title 38, United States Code.
(e) Dependent or survivor benefits--(1) General. If a person is, by reason of this section,
barred from receiving any benefits under title 38, United States Code (or under any other
law administered by the Department of Veterans Affairs based on a period of active duty,
the person's dependents or survivors are also barred from receiving benefits based on the
same period of active duty.
(2) Exceptions. Paragraph (e)(1) of this section does not apply to benefits under chapters
19 and 37 of title 38, United States Code. (38 U.S.C. 5303A)
[47 FR 24549, June 7, 1982]
38 U.S.C. 501(a).
xxi
§ 3.13 Discharge to change status.
Discussion and Analysis in the Veterans Benefits Manual
(a) A discharge to accept appointment as a commissioned or warrant officer, or to change
from a Reserve or Regular commission to accept a commission in the other component,
or to reenlist is a conditional discharge if it was issued during one of the following
periods:
(1) World War I; prior to November 11, 1918. As to reenlistments, this subparagraph
applies only to Army and National Guard. No involuntary extension or other restrictions
existed on Navy enlistments.
(2) World War II, the Korean conflict or the Vietnam era; prior to the date the person was
eligible for discharge under the point or length of service system, or under any other
criteria in effect.
(3) Peacetime service; prior to the date the person was eligible for an unconditional
discharge.
(b) Except as provided in paragraph (c) of this section, the entire period of service under
the circumstances stated in paragraph (a) of this section constitutes one period of service
and entitlement will be determined by the character of the final termination of such
period of active service except that, for death pension purposes, § 3.3(b)(3) and (4) is
controlling as to basic entitlement when the conditions prescribed therein are met.
(c) Despite the fact that no unconditional discharge may have been issued, a person shall
be considered to have been unconditionally discharged or released from active military,
naval or air service when the following conditions are met:
(1) The person served in the active military, naval or air service for the period of time the
person was obligated to serve at the time of entry into service;
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) The person was not discharged or released from such service at the time of
completing that period of obligation due to an intervening enlistment or reenlistment; and
(3) The person would have been eligible for a discharge or release under conditions other
than dishonorable at that time except for the intervening enlistment or reenlistment.
[26 FR 1566, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962; 32 FR 13224,
Sept. 19, 1967; 43 FR 15154, Apr. 11, 1978; 46 FR 23926, Apr. 29, 1981]
38 U.S.C. 501(a).
xxii
§ 3.14 Validity of enlistments.
Discussion and Analysis in the Veterans Benefits Manual
Service is valid unless the enlistment is voided by the service department.
(a) Enlistment not prohibited by statute. Where an enlistment is voided by the service
department for reasons other than those stated in paragraph (b) of this section, service is
valid from the date of entry upon active duty to the date of voidance by the service
department. Benefits may not be paid, however, unless the discharge is held to have been
under conditions other than dishonorable. Generally discharge for concealment of a
physical or mental defect except incompetency or insanity which would have prevented
enlistment will be held to be under dishonorable conditions.
(b) Statutory prohibition. Where an enlistment is voided by the service department
because the person did not have legal capacity to contract for a reason other than minority
(as in the case of an insane person) or because the enlistment was prohibited by statute (a
deserter or person convicted of a felony), benefits may not be paid based on that service
even though a disability was incurred during such service. An undesirable discharge by
reason of the fraudulent enlistment voids the enlistment from the beginning.
(c) Misrepresentation of age. Active service which was terminated because of
concealment of minority or misrepresentation of age is honorable if the veteran was
released from service under conditions other than dishonorable. Service is valid from the
date of entry upon active duty to the date of discharge.
(d) Honorable discharges. Determinations as to honorable service will be made by the
service departments and the finding shall be binding on the Department of Veterans
Affairs, but, in the case of an alien, the effect of the discharge will be governed by §
3.7(b).
[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962]
38 U.S.C. 501(a).
§ 3.15 Computation of service.
For nonservice-connected or service-connected benefits, active service is countable
exclusive of time spent on an industrial, agricultural, or indefinite furlough, time lost on
absence without leave (without pay), under arrest (without acquittal), in desertion, while
undergoing sentence of court-martial or a period following release from active duty under
the circumstances outlined in § 3.41. In claims based on Spanish-American War service,
leave authorized under General Order No. 130, War Department, is included.
[40 FR 16064, Apr. 9, 1975]
38 U.S.C. 501(a).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[CROSS REFERENCE: Duty periods. See § 3.6(b)(6).]
§ 3.16 Service pension.
In computing the 70 or 90 days required under § 3.3(a) active service which began before
or extended beyond the war period will be included if such service was continuous.
Broken periods of service during a war period may be added together to meet the
requirement for length of service.
[41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979]
38 U.S.C. 501(a).
§ 3.17 Disability and death pension; Mexican border period and later war
periods.
In computing the 90 days' service required for pension entitlement (see § 3.3), there will
be included active service which began before and extended into the Mexican border
period or ended during World War I, or began or ended during World War II, the Korean
conflict, the Vietnam era or the Persian Gulf War, if such service was continuous. Service
during different war periods may be combined with service during any other war period
to meet the 90 days' service requirement.
[37 FR 6676, Apr. 1, 1972, as amended at 44 FR 45932, Aug. 6, 1979; 56 FR 57986, Nov.
15, 1991]
(38 U.S.C. 1521)
§§ 3.18 -- 3.19 [Reserved]
xxiii
§ 3.20 Surviving spouse's benefit for month of veteran's death.
Discussion and Analysis in the Veterans Benefits Manual
(a) Where the veteran died on or after December 1, 1962, and before October 1, 1982, the
rate of death pension or dependency and indemnity compensation otherwise payable for
the surviving spouse for the month in which the death occurred shall be not less than the
amount of pension or compensation which would have been payable to or for the veteran
for that month but for his or her death.
(Authority: 38 U.S.C. 5310)
(b) Where the veteran dies on or after October 1, 1982, the surviving spouse may be paid
death pension or dependency and indemnity compensation for the month in which the
veteran died at a rate equal to the amount of compensation or pension which would have
been payable to the veteran for that month had death not occurred, but only if such rate is
equal to or greater than the monthly rate of death pension or dependency and indemnity
compensation to which the surviving spouse is entitled. Otherwise, no payment of death
pension or dependency and indemnity compensation may be made for the month in
which the veteran died.
(c)(1) Where a veteran receiving compensation or pension dies after December 31, 1996,
the surviving spouse, if not entitled to death compensation, dependency and indemnity
compensation, or death pension for the month of death, shall be entitled to a benefit for
that month in an amount equal to the amount of compensation or pension the veteran
would have received for that month but for his or her death.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) A payment issued to a deceased veteran as compensation or pension for the month in
which death occurred shall be treated as payable to that veteran's surviving spouse, if the
surviving spouse is not entitled to death compensation, dependency and indemnity
compensation or death pension for that month and, if negotiated or deposited, shall be
considered to be the benefit to which the surviving spouse is entitled under paragraph
(c)(1) of this section. However, if such payment is in an amount less than the amount of
the benefit under paragraph (c)(1) of this section, the unpaid difference shall be treated in
the same manner as an accrued benefit under § 3.1000 of this part.
(Authority: 38 U.S.C. 5310(b))
[48 FR 34471, July 29, 1983; 62 FR 35421, 35422, July 1, 1997; 64 FR 30391, 30392,
June 8, 1999]
(38 U.S.C. 5111(c))
[EFFECTIVE DATE NOTE: 64 FR 30391, 30392, June 8, 1999, amended paragraph (b),
effective June 8, 1999.]
§ 3.21 Monetary rates.
The rates of compensation, dependency and indemnity compensation for surviving
spouses and children, and section 306 and old-law disability and death pension, are
published in tabular form in appendix B of the Veterans Benefits Administration Manual
M21-1 and are to be given the same force and effect as if published in the regulations
(title 38, Code of Federal Regulations). The maximum annual rates of improved pension
payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in §§ 3.23 and 3.24. The
monthly rates and annual income limitations applicable to parents' dependency and
indemnity compensation are set forth in § 3.25.
[44 FR 45932, Aug. 6, 1979]
38 U.S.C. 501(a).
CROSS REFERENCES: Section 306 pension. See § 3.1(u). Old-law pension. See §
3.1(v). Improved pension. See § 3.1(w).
§ 3.22 DIC benefits for survivors of certain veterans rated totally disabled at
time of death.
xxiv
Discussion and Analysis in the Veterans Benefits Manual
(a) Even though a veteran died of non-service-connected causes, VA will pay death
benefits to the surviving spouse or children in the same manner as if the veteran's death
were service-connected, if:
(1) The veteran's death was not the result of his or her own willful misconduct, and
(2) At the time of death, the veteran was receiving, or was entitled to receive,
compensation for service-connected disability that was:
(i) Rated by VA as totally disabling for a continuous period of at least 10 years
immediately preceding death;
(ii) Rated by VA as totally disabling continuously since the veteran's release from active
duty and for at least 5 years immediately preceding death; or
(iii) Rated by VA as totally disabling for a continuous period of not less than one year
immediately preceding death, if the veteran was a former prisoner of war who died after
September 30, 1999.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 1318(b))
(b) For purposes of this section, ``entitled to receive'' means that the veteran filed a
claim for disability compensation during his or her lifetime and one of the following
circumstances is satisfied:
(1) The veteran would have received total disability compensation at the time of death
for a service-connected disability rated totally disabling for the period specified in
paragraph (a)(2) of this section but for clear and unmistakable error committed by VA
in a decision on a claim filed during the veteran's lifetime; or
(2) Additional evidence submitted to VA before or after the veteran's death, consisting
solely of service department records that existed at the time of a prior VA decision but
were not previously considered by VA, provides a basis for reopening a claim finally
decided during the veteran's lifetime and for awarding a total service-connected disability
rating retroactively in accordance with §§3.156(c) and 3.400(q)(2) of this part for the
relevant period specified in paragraph (a)(2) of this section; or
(3) At the time of death, the veteran had a service-connected disability that was
continuously rated totally disabling by VA for the period specified in paragraph (a)(2),
but was not receiving compensation because:
(i) VA was paying the compensation to the veteran's dependents;
(ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset
an indebtedness of the veteran;
(iii) The veteran had not waived retired or retirement pay in order to receive
compensation;
(iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);
(v) VA was withholding payments because the veteran's whereabouts were unknown,
but the veteran was otherwise entitled to continued payments based on a total
service-connected disability rating; or
(vi) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits
were payable under 38 U.S.C. 5309.
(c) For purposes of this section, "rated by VA as totally disabling" includes total
disability ratings based on unemployability (§ 4.16 of this chapter).
(d) To be entitled to benefits under this section, a surviving spouse must have been
married to the veteran -(1) For at least 1 year immediately preceding the date of the veteran's death; or
(2) For any period of time if a child was born of the marriage, or was born to them before
the marriage.
(Authority: 38 U.S.C. 1318)
(e) Effect of judgment or settlement. If a surviving spouse or child eligible for benefits
under paragraph (a) of this section receives any money or property pursuant to a judicial
proceeding based upon, or a settlement or compromise of, any cause of action or other
right of recovery for damages for the death of the veteran, benefits payable under
paragraph (a) of this section shall not be paid for any month following the month in
which such money or property is received until the amount of benefits that would
otherwise have been payable under paragraph (a) of this section equals the total of the
amount of money received and the fair market value of the property received. The
provisions of this paragraph do not apply, however, to any portion of such benefits
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
payable for any period preceding the end of the month in which such money or property
of value is received.
(Authority: 38 U.S.C. 501)
(f) Social security and worker's compensation. Benefits received under social security or
worker's compensation are not subject to recoupment under paragraph (e) of this section
even though such benefits may have been awarded pursuant to a judicial proceeding.
(g) Beneficiary's duty to report. Any person entitled to benefits under paragraph (a) of
this section shall promptly report to the Department of Veterans Affairs the receipt of any
money or property received pursuant to a judicial proceeding based upon, or a settlement
or compromise of, any cause of action or other right of recovery for damages for the
death of the veteran. The amount to be reported is the total of the amount of money
received and the fair market value of property received. Expenses incident to recovery,
such as attorney's fees, may not be deducted from the amount to be reported.
(h) Relationship to survivor benefit plan. For the purpose of 10 U.S.C. 1448(d) and
1450(c) eligibility for benefits under paragraph (a) of this section shall be deemed
eligibility for dependency and indemnity compensation under 38 U.S.C. 1311(a).
[44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235,
June 21, 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3388, 3391, Jan. 21, 2000; 65 FR
43699, July 14, 2000; 70 FR 72211, December 2, 2005]
(38 U.S.C. 1318)
[EFFECTIVE DATE NOTE: 65 FR 3388, 3391, Jan. 21, 2000, amended this section,
effective Jan. 21, 2000; 65 FR 43699, July 14, 2000, amended paragraph (a)(2), effective
Nov. 30, 1999.]
CROSS REFERENCES: Marriage dates. See § 3.54. Homicide. See § 3.11.
xxv
§ 3.23 Improved pension rates -- Veterans and surviving spouses.
Discussion and Analysis in the Veterans Benefits Manual
(a) Maximum annual rates of improved pension. The maximum annual rates of improved
pension for the following categories of beneficiaries shall be the amounts specified in 38
U.S.C. 1521 and 1542, as increased from time to time under 38 U.S.C. 5312. Each time
there is an increase under 38 U.S.C. 5312, the actual rates will be published in the
"Notices" section of the FEDERAL REGISTER. (1) Veterans who are permanently and
totally disabled.
(Authority: 38 U.S.C. 1521(b)( or (c))
(2) Veterans in need of aid and attendance.
(Authority: 38 U.S.C. 1521(d))
(3) Veterans who are housebound.
(Authority: 38 U.S.C. 1521(e))
(4) Two veterans married to one another; combined rates.
(Authority: 38 U.S.C. 1521(f))
(5) Surviving spouse alone or with a child or children of the deceased veteran in custody
of the surviving spouse.
(Authority: 38 U.S.C. 1541(b) or (c))
(6) Surviving spouses in need of aid and attendance.
(Authority: 38 U.S.C. 1541(d))
(7) Surviving spouses who are housebound.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 1541(e))
(b) Reduction for income. The maximum rates of improved pension in paragraph (a) of
this section shall be reduced by the amount of the countable annual income of the veteran
or surviving spouse.
(Authority: 38 U.S.C. 1521, 1541)
(c) Mexican border period and World War I veterans. The applicable maximum annual
rate payable to a Mexican border period or World War I veteran under this section shall
be increased by the amount specified in 38 U.S.C. 1521(g), as increased from time to
time under 38 U.S.C 5312. Each time there is an increase under 38 U.S.C. 5312, the
actual rate will be published in the "Notices" section of the FEDERAL REGISTER.
(Authority: 38 U.S.C. 1521(g))
(d) Definitions of terms used in this section -- (1) Dependent. A veteran's spouse or child.
A veteran's spouse who resides apart from the veteran and is estranged from the veteran
may not be considered the veteran's dependent unless the spouse receives reasonable
support contributions from the veteran. (Note that under § 3.60 a veteran and spouse who
reside apart are considered to be living together unless they are estranged.) A child of a
veteran not in custody of the veteran and to whose support the veteran is not reasonably
contributing, may not be considered the veteran's dependent.
(Authority: 38 U.S.C. 1521(b))
(2) In need of aid and attendance. As defined in § 3.351(b).
(3) Housebound. As defined in § 3.351(d)(2), (f). This term also includes a veteran who
has a disability or disabilities evaluated as 60 percent or more disabling in addition to a
permanent and totally disabling condition. See § 3.351(d)(1).
(4) Veteran's annual income. This term includes the veteran's annual income, the annual
income of the veteran's dependent spouse, and the annual income of each child of the
veteran (other than a child for whom increased pension is not payable under 38 U.S.C.
1522(b)) in the veteran's custody or to whose support the veteran is reasonably
contributing (to the extent such child's income is reasonably available to or for the
veteran, unless in the judgment of the Department of Veterans Affairs to do so would
work a hardship on the veteran.) There is a rebuttable presumption that all of such a
child's income is reasonably available to or for the veteran.
(Authority: 38 U.S.C. 1521(c), (h))
(5) Surviving spouse's annual income. This term includes the surviving spouse's annual
income and the annual income of each child of the veteran (other than a child for whom
increased pension is not payable under 38 U.S.C. 1543(a)(2)) in the custody of the
surviving spouse to the extent that such child's income is reasonably available to or for
the surviving spouse, unless in the judgment of the Department of Veterans Affairs to do
so would work a hardship on the surviving spouse. There is a rebuttable presumption that
all of such a child's income is available to or for the surviving spouse.
(Authority: 38 U.S.C. 1541(c), (g))
(6) Reasonable availability and hardship. For the purposes of paragraphs (d)(4) and (d)(5)
of this section, a child's income shall be considered "reasonably available" when it can be
readily applied to meet the veteran's or surviving spouse's expenses necessary for
reasonable family maintenance, and "hardship" shall be held to exist when annual
expenses necessary for reasonable family maintenance exceed the sum of countable
annual income plus VA pension entitlement. Expenses necessary for reasonable family
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maintenance include expenses for basic necessities (such as food, clothing, shelter, etc.)
and other expenses, determined on a case-by-case basis, which are necessary to support a
reasonable quality of life.
[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 53 FR 23235,
June 21, 1988; 61 FR 20726, 20727, May 8, 1996]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, which revised the
authority cite following paragraph (d)(5), became effective May 8, 1996.]
CROSS REFERENCES: Improved pension. See § 3.1(w). Child. See § 3.57(d).
Definition of living with. See § 3.60. Exclusions from income. See § 3.272.
§ 3.24 Improved pension rates -- Surviving children.
(a) General. The provisions of this section apply to children of a deceased veteran not in
the custody of a surviving spouse who has basic eligibility to receive improved pension.
Children in custody of a surviving spouse who has basic eligibility to receive improved
pension do not have separate entitlement. Basic eligibility to receive improved pension
means that the surviving spouse is in receipt of improved pension or could become
entitled to receive improved pension except for the amount of the surviving spouse's
countable annual income or the size of the surviving spouse's estate (See § 3.274(c)).
Under § 3.23(d)(5) the countable annual income of a surviving spouse includes the
countable annual income of each child of the veteran in custody of the surviving spouse
to the extent the child's income is reasonably available to or for the surviving spouse,
unless in the judgment of the Department of Veterans Affairs to do so would work a
hardship on the surviving spouse.
(b) Child with no personal custodian or in the custody of an institution. In cases in which
there is no personal custodian, i.e., there is no person who has the legal right to exercise
parental control and responsibility for the child's welfare (See § 3.57(d)), or the child is in
the custody of an institution, pension shall be paid to the child at the annual rate specified
in 38 U.S.C. 1542, as increased from time to time under 38 U.S.C. 5312, reduced by the
amount of the child's countable annual income. Each time there is an increase under 38
U.S.C. 5312, the actual rate will be published in the "Notices" section of the FEDERAL
REGISTER.
(c) Child in the custody of person legally responsible for support -- (1) Single child.
Pension shall be paid to a child in the custody of a person legally responsible for the
child's support at an annual rate equal to the difference between the rate for a surviving
spouse and one child under § 3.23(a)(5), and the sum of the annual income of such child
and the annual income of such person or, the maximum annual pension rate under
paragraph (b) of this section, whichever is less.
(2) More than one child. Pension shall be paid to children in custody of a person legally
responsible for the children's support at an annual rate equal to the difference between the
rate for a surviving spouse and an equivalent number of children (but not including any
child who has countable annual income equal to or greater than the maximum annual
pension rate under paragraph (b) of this section) and the sum of the countable annual
income of the person legally responsible for support and the combined countable annual
income of the children (but not including the income of any child whose countable annual
income is equal to or greater than the maximum annual pension rate under paragraph (b)
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
of this section, or the maximum annual pension rate under paragraph (b) of this section
times the number of eligible children, whichever is less).
[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 61 FR 20726,
20727, May 8, 1996]
(38 U.S.C. 1542)
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, which added "the
annual income of such child and" following "and the sum of" in paragraph (c)(1), became
effective May 8, 1996.]
CROSS REFERENCES: Child. See § 3.57(d). Exclusions from income. See § 3.272.
§ 3.25 Parent's dependency and indemnity compensation (DIC) -- Method of
payment computation.
xxvi
Discussion and Analysis in the Veterans Benefits Manual
Monthly payments of parents' DIC shall be computed in accordance with the following
formulas:
(a) One parent. Except as provided in paragraph (b) of this section, if there is only one
parent, the monthly rate specified in 38 U.S.C 1315(b)(1), as increased from time to time
under 38 U.S.C. 5312, reduced by $ .08 for each dollar of such parent's countable annual
income in excess of $ 800. No payments of DIC may be made under this paragraph,
however, if such parent's countable annual income exceeds the amount specified in 38
U.S.C. 1315(b)(3), as increased from time to time under 38 U.S.C. 5312, and no payment
of DIC to a parent under this paragraph may be less than $ 5 a month.
(b) One parent who has remarried. If there is only one parent and the parent has remarried
and is living with the parent's spouse, DIC shall be paid under paragraph (a) or paragraph
(d) of this section, whichever shall result in the greater benefit being paid to the veteran's
parent. In the case of remarriage, the total combined annual income of the parent and the
parent's spouse shall be counted in determining the monthly rate of DIC.
(c) Two parents not living together. The rate computation method in this paragraph
applies to:
(1) Two parents who are not living together, or
(2) An unremarried parent when both parents are living and the other parent has
remarried.
The monthly rate of DIC paid to such parent shall be the rate sepcified in 38 U.S.C.
1315(c)(1), as increased from time to time under 38 U.S.C. 5312, reduced by an amount
no greater than $ .08 for each dollar of such parent's countable annual income in excess
of $ 800, except tht no payments of DIC may be made under this paragraph if such
parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(c)(3),
as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent
under this paragraph may be less than $5 monthly. Each time there is a rate increase
under 38 U.S.C. 5312, the amount of the reduction under this paragraph shall be
recomputed to provide, as nearly as possible, for an equitable distribution of the rate
increase. The results of this computation method shall be published in schedular format in
the "Notices" section of the Federal Register as provided in paragraph (f) of this section.
(d) Two parents living together or remarried parents living with spouse. The rate
computation method in this paragraph applies to each parent living with another parent
and to each remarried parent when both parents are alive. The monthly rate of DIC paid
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
to such parents shall be the rate specified in 38 U.S.C. 1315(d)(1), as increased from time
to time under 38 U.S.C. 5312, reduced to an amount no greater than $ .08 for each dollar
of such parent's and spouse's combined countable annual income in excess of $ 1,000
except that no payments of DIC to a parent under this paragraph may be less than $ 5
monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the
reduction under this paragraph shall be recomputed to provide, as nearly as possible, for
an equitable distribution of the rate increase. The results of this computation method shall
be published in schedular format in the "Notices" section of the FEDERAL REGISTER
as provided in paragraph (f) of this section.
(e) Aid and attendance. The monthly rate of DIC payable to a parent under this section
shall be increased by the amount specified in 38 U.S.C. 1315(g), as increased from time
to time under 38 U.S.C. 5312, if such parent is:
(1) A patient in a nursing home, or
(2) Helpless or blind, or so nearly helpless or blind as to need or require the regular aid
and attendance of another person.
(f) Rate publication. Each time there is an increase under 38 U.S.C. 5312, the actual rates
will be published in the "Notices" section of the FEDERAL REGISTER.
[52 FR 34907, Sept. 14, 1987; 61 FR 20726, 20727, May 8, 1996]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, which added "may be
less than $ 5 monthly. Each time there is a rate increase under 38 U.S.C. 5312, the
amount of the reduction under this paragraph" immediately following "to a parent under
this paragraph" in the concluding text of paragraph (c), became effective May 8, 1996.]
§ 3.26 Section 306 and old-law pension annual income limitations.
(a) The annual income limitations for section 306 pension shall be the amounts specified
in section 306(a)(2)(A) of Pub. L. 95-588, as increased from time to time under section
306(a)(3) of Pub. L. 95-588.
(b) If a beneficiary under section 306 pension is in need of aid and attendance, the annual
income limitation under paragraph (a) of this section shall be increased in accordance
with 38 U.S.C. 1521(d), as in effect on December 31, 1978.
(c) The annual income limitations for old-law pension shall be the amounts specified in
section 306(b)(3) of Pub. L. 95-588, as increased from time to time under section
306(b)(4) of Pub. L. 95-588.
(d) Each time there is an increase under section 306 (a)(3) or (b)(4) of Pub. L. 95-588, the
actual income limitations will be published in the "Notices" section of the FEDERAL
REGISTER.
[52 FR 34908, Sept. 14, 1987]
(38 U.S.C. 501)
§ 3.27 Automatic adjustment of benefit rates.
(a) Improved pension. Whenever there is a cost-of-living increase in benefit amounts
payable under section 215(i) of title II of the Social Security Act, VA shall, effective on
the dates such increases become effective, increase by the same percentage each
maximum annual rate of pension.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 5312(a))
(b) Parents' dependency and indemnity compensation -- maximum annual income
limitation and maximum monthly rates. Whenever there is a cost-of-living increase in
benefit amounts payable under section 215(i) of title II of the Social Security Act, VA
shall, effective on the dates such increases become effective, increase by the same
percentage the annual income limitations and the maximum monthly rates of dependency
indemnity compensation for parents.
(Authority: 38 U.S.C. 5312(b)(1))
(c) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are
children of Vietnam veterans. Whenever there is a cost-of-living increase in benefit
amounts payable under section 215(i) of Title II of the Social Security Act, VA shall,
effective on the dates such increases become effective, increase by the same percentage
the monthly allowance rates under 38 U.S.C. chapter 18.
(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)
(d) Medal of Honor pension. Beginning in the year 2004, VA shall, effective December 1
of each year, increase the monthly Medal of Honor pension by the same percentage as the
percentage by which benefit amounts payable under section 215(i) of Title II of the
Social Security Act are increased effective December 1 of such year.
(Authority: 38 U.S.C. 1562(e))
(e) Publishing requirements. Increases in pension rates, parents' dependency and
indemnity compensation rates and income limitation, the monthly allowance rates under
38 U.S.C. chapter 18 and the Medal of Honor pension made under this section shall be
published in the Federal Register.
(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312(c)(1)
[44 FR 45934, Aug. 6, 1979, as amended at 52 FR 34908, Sept. 14, 1987; 62 FR 51274,
51278, Sept. 30, 1997; 67 FR 49585, 49586, July 31, 2002; 68 FR 55466, 55467, Sept. 26,
2003]
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, amended this section,
effective July 31, 2002; 68 FR 55466, 55467, Sept. 26, 2003, amended this section,
effective Sept. 1, 2003.]
§ 3.28 Automatic adjustment of section 306 and old-law pension income
limitations.
Whenever the maximum annual rates of improved pension are increased by reason of the
provisions of 38 U.S.C. 5312, the following will be increased by the same percentage
effective the same date:
(a) The maximum annual income limitations applicable to continued receipt of section
306 and old-law pension; and
(b) The dollar amount of a veteran's spouse's income that is excludable in determining the
income of a veteran for section 306 pension purposes. (See § 3.262(b)(2))
These increases shall be published in the FEDERAL REGISTER at the same time that
increases under § 3.27 are published.
[52 FR 34908, Sept. 14, 1987]
(Sec. 306, Pub. L. 95-588).
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
CROSS REFERENCES: Section 306 and old-law pension annual income limitations. See
§ 3.26.
§ 3.29 Rounding.
(a) Annual rates. Where the computation of an increase in improved pension rates under
§§ 3.23 and 3.24 would otherwise result in a figure which includes a fraction of a dollar,
the benefit rate will be adjusted to the next higher dollar amount. This method of
computation will also apply to increases in old-law and section 306 pension annual
income limitations under § 3.26, including the income of a spouse which is excluded
from a veteran's countable income, and parents' dependency and indemnity compensation
benefit rates and annual income limitations under § 3.25.
(Authority: 38 U.S.C. 5312(c)(2))
(b) Monthly or other periodic pension rates. After determining the monthly or other
periodic rate of improved pension under §§ 3.273 and 3.30 or the rate payable under
section 306(a) of Pub. L. 95-588 (92 Stat. 2508), the resulting rate, if not a multiple of
one dollar, will be rounded down to the nearest whole dollar amount. The provisions of
this paragraph apply with respect to amounts of pension payable for periods beginning on
or after June 1, 1983, under the provisions of 38 U.S.C. 1521, 1541 or 1542, or under
section 306(a) of Pub. L. 95-588.
(Authority: 38 U.S.C. 5123)
(c) Monthly rates under 38 U.S.C. chapter 18. When increasing the monthly monetary
allowance rates under 38 U.S.C. chapter 18 for certain individuals who are children of
Vietnam veterans, VA will round any resulting rate that is not an even dollar amount to
the next higher dollar.
(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)
[48 FR 34471, July 29, 1983; 65 FR 35280, 35282, June 2, 2000; 67 FR 49585, 49586,
July 31, 2002]
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, revised paragraph (c),
effective July 31, 2002.]
§ 3.30 Frequency of payment of improved pension and parents' dependency and
indemnity compensation (DIC).
Payment shall be made as shown in paragraphs (a), (b), (c), (d), (e), and (f) of this section;
however, beneficiaries receiving payment less frequently than monthly may elect to
receive payment monthly in cases in which other Federal benefits would otherwise be
denied.
(Authority: 38 U.S.C. 501)
(a) Improved pension--Monthly. Payment shall be made monthly if the annual rate
payable is $ 228 or more.
(b) Improved pension--Quarterly. Payment shall be made every 3 months on or about
March 1, June 1, September l, and December 1, if the annual rate payable is at least $ 144
but less the $ 228.
(c) Improved pension--Semiannually. Payment shall be made every 6 months on or about
June 1, and December 1, if the annual rate payable is at least $ 72 but less than $ 144.
(d) Improved pension--Annually. Payment shall be made annually on or about June 1, if
the annual rate payable is less than $ 72.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: 38 U.S.C. 1508)
(e) Parents' DIC--Semiannually.
Benefits shall be paid every 6 months on or about June 1, and December 1, if the amount
of the annual benefit is less than 4 percent of the maximum annual rate payable under 38
U.S.C. 1315.
(f) Payment of less than one dollar. Payments of less than $ 1 shall not be made.
[44 FR 45935, Aug. 6, 1979, as amended at 51 FR 1790, Jan. 15, 1986; 53 FR 7903, Mar.
11, 1988; 57 FR 10425, Mar. 26, 1992]
(38 U.S.C. 501(a))
CROSS REFERENCE: Pension. See § 3.3(a)(3), (b)(4).
xxvii
§ 3.31 Commencement of the period of payment.
Discussion and Analysis in the Veterans Benefits Manual
Regardless of VA regulations concerning effective dates of awards, and except as
provided in paragraph (c) of this section, payment of monetary benefits based on original,
reopened, or increased awards of compensation, pension, dependency and indemnity
compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who
is a child of a Vietnam veteran may not be made for any period prior to the first day of
the calendar month following the month in which the award became effective. However,
beneficiaries will be deemed to be in receipt of monetary benefits during the period
between the effective date of the award and the date payment commences for the purpose
of all laws administered by the Department of Veterans Affairs except that nothing in this
section will be construed as preventing the receipt of retired or retirement pay prior to the
effective date of waiver of such pay in accordance with 38 U.S.C. 5305.
(a) Increased award defined. For the purposes of this section the term increased award
means an award which is increased because of an added dependent, increase in disability
or disability rating, or reduction in income. The term also includes elections of improved
pension under section 306 of Pub. L. 95-588 and awards pursuant to paragraphs 29 and
30 of the Schedule for Rating Disabilities except as provided in paragraph (c) of this
section.
(b) General rule of applicability. The provisions of this section apply to all original,
reopened, or increased awards unless such awards provide only for continuity of
entitlement with no increase in rate of payment.
(c) Specific exclusions. The provisions of this section do not apply to the following types
of awards.
(1) Surviving spouse's rate for the month of a veteran's death (for exception see § 3.20(b))
(2) In cases where military retired or retirement pay is greater than the amount of
compensation payable, compensation will be paid as of the effective date of waiver of
such pay. However, in cases where the amount of compensation payable is greater than
military retired or retirement pay, payment of the available difference for any period prior
to the effective date of total waiver of such pay is subject to the general provisions of this
section.
(3) Adjustments of awards -- such as in the case of original or increased apportionments
or the termination of any withholding, reduction, or suspension by reason of:
(i) Recoupment,
(ii) An offset to collect indebtedness,
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(iii) Institutionalization (hospitalization),
(iv) Incompetency,
(v) Incarceration,
(vi) An estate that exceeds the limitation for certain hospitalized incompetent veterans, or
(vii) Discontinuance of apportionments.
(4) Increases resulting solely from the enactment of legislation -- such as
(i) Cost-of-living increases in compensation or dependency and indemnity compensation,
(ii) Increases in Improved Pension, parents' dependency and indemnity compensation, or
a monetary allowance under 38 U.S.C. chapter 18 pursuant to § 3.27, or
(iii) Changes in the criteria for statutory award designations.
(5) Temporary total ratings pursuant to paragraph 29 of the Schedule for Rating
Disabilities when the entire period of hospitalization or treatment, including any period of
post-hospitalization convalescence, commences and terminates within the same calendar
month. In such cases the period of payment shall commence on the first day of the month
in which the hospitalization or treatment began.
[48 FR 34472, July 29, 1983; 48 FR 37031, Aug. 16, 1983, as amended at 49 FR 47003,
Nov. 30, 1984; 65 FR 35280, 35282, June 2, 2000; 67 FR 49585, 49586, July 31, 2002]
(38 U.S.C. 1822, 5111)
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, amended this section,
effective July 31, 2002.]
§ 3.32 Exchange rates for foreign currencies.
When determining the rates of pension or parents' DIC or the amounts of burial, plot or
headstone allowances or accrued benefits to which a claimant or beneficiary may be
entitled, income received or expenses paid in a foreign currency shall be converted into
U.S. dollar equivalents employing quarterly exchange rates established by the
Department of the Treasury.
(a) Pension and parents' DIC. (1) Because exchange rates for foreign currencies cannot be
determined in advance, rates of pension and parents' DIC shall be projected using the
most recent quarterly exchange rate and shall be adjusted retroactively based upon actual
exchange rates when an annual eligibility verification report is filed.
(2) Retroactive adjustments due to fluctuations in exchange rates shall be calculated using
the average of the four most recent quarterly exchange rates. If the claimant reports
income and expenses for a prior reporting period, the retroactive adjustment shall be
calculated using the average of the four quarterly rates which were the most recent
available on the closing date of the twelve-month period for which income and expenses
are reported.
(b) Burial, plot or headstone allowances and accrued benefits. Payment amounts for
burial, plot or headstone allowances and claims for accrued benefits as reimbursement
from the person who bore the expenses of a deceased beneficiary's last illness or burial
shall be determined using the quarterly exchange rate for the quarter in which the
expenses forming the basis of the claim were paid. If the claim is filed by an unpaid
creditor, however, the quarterly rate for the quarter in which the veteran died shall apply.
When entitlement originates during a quarter for which the Department of the Treasury
has not yet published a quarterly rate, amounts due shall be calculated using the most
recent quarterly exchange rate.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, 1990]
(38 U.S.C. 501)
CROSS REFERENCES: Accrued benefits. See § 3.1000. Accrued benefits paybale to
foreign beneficiaries. See § 3.1008.
§ 3.40 Philippine and Insular Forces.
(a) Regular Philippine Scouts. Service in the Philippine Scouts (except that described in
paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and
Samoan Native Band of the Navy is included for pension, compensation, dependency and
indemnity compensation, and burial allowance. Benefits are payable in dollars at the
full-dollar rate.
(b) Other Philippine Scouts. Service of persons enlisted under section 14, Pub. L. 190,
79th Congress (Act of October 6, 1945), is included for compensation and dependency
and indemnity compensation. Except as provided in §§3.42 and 3.43, benefits based on
service described in this paragraph are payable at a rate of $0.50 for each dollar
authorized under the law. All enlistments and reenlistments of Philippine Scouts in the
Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made
under the provisions of Pub. L. 190 as it constituted the sole authority for such
enlistments during that period. This paragraph does not apply to officers who were
commissioned in connection with the administration of Pub. L. 190.
(Authority: 38 U.S.C. 107)
(c) Commonwealth Army of the Philippines. (1) Service is included, for compensation,
dependency and indemnity compensation, and burial allowance, from and after the dates
and hours, respectively, when they were called into service of the Armed Forces of the
United States by orders issued from time to time by the General Officer, U.S. Army,
pursuant to the Military Order of the President of the United States dated July 26, 1941.
Service as a guerrilla under the circumstances outlined in paragraph (d) of this section is
also included. Service on or after July 1, 1946, is not included. Except as provided in §§
3.42 and 3.43, benefits based on service described in this paragraph are payable at a rate
of $ 0.50 for each dollar authorized under the law.
(Authority: 38 U.S.C. 107)
(2) Unless the record shows examination at time of entrance into the Armed Forces of the
United States, such persons are not entitled to the presumption of soundness. This also
applies upon reentering the Armed Forces after a period of inactive service.
(d) Guerrilla service. (1) Persons who served as guerrillas under a commissioned officer
of the United States Army, Navy or Marine Corps, or under a commissioned officer of
the Commonwealth Army recognized by and cooperating with the United States Forces
are included. (See paragraph (c) of this section.) Service as a guerrilla by a member of the
Philippine Scouts or the Armed Forces of the United States is considered as service in his
or her regular status. (See paragraph (a) of this section.)
(2) The following certifications by the service departments will be accepted as
establishing guerrilla service:
(i) Recognized guerrilla service;
(ii) Unrecognized guerrilla service under a recognized commissioned officer only if the
person was a former member of the United States Armed Forces (including the Philippine
Scouts), or the Commonwealth Army. This excludes civilians.
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A certification of Anti-Japanese Activity will not be accepted as establishing guerrilla
service.
(e) Combined service. Where a veteran who had Commonwealth Army or guerrilla
service and also had other service, wartime or peacetime, in the Armed Forces of the
United States, has disabilities which are compensable separately on a dollar and a $ 0.50
for each dollar authorized basis, and the disabilities are combined under the authority
contained in 38 U.S.C. 1157, the evaluation for which dollars are payable will be first
considered and the difference between this evaluation and the combined evaluation will
be the basis for computing the amount payable at the rate of $ 0.50 for each dollar
authorized.
[26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966; 60 FR 18355,
Apr. 11, 1995; redesignated and amended at 66 FR 66763, 66767, Dec. 27, 2001; 71 FR
8215, Feb. 16, 2006]
(38 U.S.C. 107)
[EFFECTIVE DATE NOTE: 66 FR 66763, 66767, Dec. 27, 2001, redesignated and
amended this section, effective Dec. 27, 2001.]
CROSS REFERENCE: Computation of service. See § 3.15.
[CROSS REFERENCE: This section was formerly § 3.8.]
§ 3.41 Philippine service.
xxviii
Discussion and Analysis in the Veterans Benefits Manual
(a) For a Regular Philippine Scout or a member of one of the regular components of the
Philippine Commonwealth Army while serving with Armed Forces of United States, the
period of active service will be from the date certified by the Armed Forces as the date of
enlistment or date of report for active duty whichever is later to date of release from
active duty, discharge, death, or in the case of a member of the Philippine
Commonwealth Army June 30, 1946, whichever was earlier. Release from active duty
includes:
(1) Leaving one's organization in anticipation of or due to the capitulation.
(2) Escape from prisoner-of-war status.
(3) Parole by the Japanese.
(4) Beginning of missing-in-action status, except where factually shown at that time he
was with his or her unit or death is presumed to have occurred while carried in such
status: Provided, however, That where there is credible evidence that he was alive after
commencement of his or her missing-in-action status, the presumption of death will not
apply for Department of Veterans Affairs purposes.
(5) Capitulation on May 6, 1942, except that periods of recognized guerrilla service or
unrecognized guerrilla service under a recognized commissioned officer or periods of
service in units which continued organized resistance against Japanese prior to formal
capitulation will be considered return to active duty for period of such service.
(b) Active service of a Regular Philippine Scout or a member of the Philippine
Commonwealth Army serving with the Armed Forces of the United States will include a
prisoner-of-war status immediately following a period of active duty, or a period of
recognized guerrilla service or unrecognized guerrilla service under a recognized
commissioned officer. In those cases where following release from active duty as set
forth in paragraph (a) of this section, the veteran is factually found by the Department of
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Veterans Affairs to have been injured or killed by the Japanese because of anti-Japanese
activities or his or her former service in the Armed Forces of the United States, such
injury or death may be held to have been incurred in active service for Department of
Veterans Affairs purposes. Determination shall be based on all available evidence,
including service department reports, and consideration shall be given to the character
and length of the veteran's former active service in the Armed Forces of the United
States.
(c) A prisoner-of-war status based upon arrest during general zonification will not be
sufficient of itself to bring a case within the definition of return to military control.
(d) The active service of members of the irregular forces guerrilla will be the period
certified by the service department.
[26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961; redesignated at
66 FR 66763, 66767, Dec. 27, 2001]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 66 FR 66763, 66767, Dec. 27, 2001, redesignated this
section, effective Dec. 27, 2001.]
[CROSS REFERENCE: This section was formerly § 3.9.]
§ 3.42 Compensation at the full-dollar rate for certain Filipino veterans residing
in the United States.
(a) Definitions. For purposes of this section:
(1) United States (U.S.) means the states, territories and possessions of the United States;
the District of Columbia, and the Commonwealth of Puerto Rico.
(2) Residing in the U.S. means that an individual's principal, actual dwelling place is in
the U.S. and that the individual meets the residency requirements of paragraph (c)(4) of
this section.
(3) Citizen of the U.S. means any individual who acquires U.S. citizenship through birth
in the territorial U.S., birth abroad as provided under title 8, United States Code, or
through naturalization, and has not renounced his or her U.S. citizenship, or had such
citizenship cancelled, revoked, or otherwise terminated.
(4) Lawfully admitted for permanent residence means that an individual has been
lawfully accorded the privilege of residing permanently in the U.S. as an immigrant by
the U.S. Citizenship and Immigration Services under title 8, United States Code, and
still has this status.
(b) Eligibility requirements. Compensation and dependency and indemnity
compensation is payable at the full-dollar rate, based on service described in § 3.40(b),
(c), or (d), to a veteran or a veteran's survivor who is residing in the U.S. and is either:
(1) A citizen of the U.S., or
(2) An alien lawfully admitted for permanent residence in the U.S.
(c) Evidence of eligibility. (1) A valid original or copy of one of the following
documents is required to prove that the veteran or the veteran's survivor is a natural
born citizen of the U.S.:
(i) A valid U.S. passport;
(ii) A birth certificate showing that he or she was born in the U.S.; or
(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) Only verification by the U.S. Citizenship and Immigration Services to VA that a
veteran or a veteran's survivor is a naturalized citizen of the U.S., or a valid U.S.
passport, will be sufficient proof of such status.
(3) Only verification by the U.S. Citizenship and Immigration Services to VA that a
veteran or a veteran's survivor is an alien lawfully admitted for permanent residence in
the U.S. will be sufficient proof of such status.
(4) VA will not pay benefits at the full-dollar rate under this section unless the evidence
establishes that the veteran or survivor is lawfully residing in the U.S.
(i) Such evidence should identify the veteran's or survivor's name and relevant dates,
and may include:
(A) A valid driver's license issued by the state of residence;
(B) Employment records, which may consist of pay stubs, W-2 forms, and certification
of the filing of Federal, State, or local income tax returns;
(C) Residential leases, rent receipts, utility bills and receipts, or other relevant
documents showing dates of utility service at a leased residence;
(D) Hospital or medical records showing medical treatment or hospitalization, and
showing the name of the medical facility or treating physician;
(E) Property tax bills and receipts; and
(F) School records.
(ii) A Post Office box mailing address in the veteran's name does not constitute
evidence showing that the veteran was lawfully residing in the United States on the date
of death.
(d) Continued eligibility. (1) In order to continue receiving benefits at the full-dollar
rate under this section, a veteran or a veteran's survivor must be physically present in
the U.S. for at least 183 days of each calendar year in which he or she receives
payments at the full-dollar rate, and may not be absent from the U.S. for more than 60
consecutive days at a time unless good cause is shown. However, if a veteran or a
veteran's survivor becomes eligible for full-dollar rate benefits for the first time on or
after July 1 of any calendar year, the 183-day rule will not apply during that calendar
year. VA will not consider a veteran or a veteran's survivor to have been absent from
the U.S. if he or she left and returned to the U.S. on the same date.
(2) A veteran or a veteran's survivor receiving benefits at the full-dollar rate under this
section must notify VA within 30 days of leaving the U.S., or within 30 days of losing
either his or her U.S. citizenship or lawful permanent resident alien status. When a
veteran or a veteran's survivor no longer meets the eligibility requirements of
paragraph (b) of this section, VA will reduce his or her payment to the rate of $0.50 for
each dollar authorized under the law, effective on the date determined under §3.505. If
such veteran or survivor regains his or her U.S. citizenship or lawful permanent resident
alien status, VA will restore full-dollar rate benefits, effective the date the veteran or
survivor meets the eligibility requirements in paragraph (b) of this section.
(3) When requested to do so by VA, a veteran or survivor receiving benefits at the
full-dollar rate under this section must verify that he or she continues to meet the
residency and citizenship or permanent resident alien status requirements of paragraph
(b) of this section. VA will advise the veteran or survivor at the time of the request that
the verification must be furnished within 60 days and that failure to do so will result in
the reduction of benefits. If the veteran or survivor fails to furnish the evidence within
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
60 days, VA will reduce his or her payment to the rate of $0.50 for each dollar
authorized, as provided in §3.652.
(4) A veteran or survivor receiving benefits at the full-dollar rate under this section
must promptly notify VA of any change in his or her address. If mail from VA to the
veteran or survivor is returned to VA by the U.S. Postal Service, VA will make
reasonable efforts to determine the correct mailing address. If VA is unable to
determine the correct mailing address through reasonable efforts, VA will reduce
benefit payments to the rate of $0.50 for each dollar authorized under law, effective on
the date determined under §3.505.
(e) Effective date for restored eligibility. In the case of a veteran or survivor receiving
benefits at the full-dollar rate, if VA reduces his or her payment to the rate of $0.50 for
each dollar authorized under the law, VA will resume payments at the full-dollar rate,
if otherwise in order, effective the first day of the month following the date on which he
or she again meets the requirements. However, such increased payments will be
retroactive no more than one year prior to the date on which VA receives evidence that
he or she again meets the requirements.
[66 FR 66763, 66767, Dec. 27, 2001; 71 FR 8215, Feb. 16, 2006]
(38 U.S.C. 107, 501(a))
[EFFECTIVE DATE NOTE: 66 FR 66763, 66767, Dec. 27, 2001, added this section,
effective Dec. 27, 2001.]
§ 3.43 Burial benefits at the full-dollar rate for certain Filipino veterans residing
in the United States on the date of death.
(a) Definitions. For purposes of this section:
(1) United States (U.S.) means the states, territories and possessions of the United States,
the District of Columbia, and the Commonwealth of Puerto Rico.
(2) Residing in the U.S. means an individual's principal, actual dwelling place was in the
U.S. When death occurs outside the U.S., VA will consider the deceased individual to
have been residing in the U.S. on the date of death if the individual maintained his or her
principal actual dwelling place in the U.S. until his or her most recent departure from the
U.S., and he or she had been physically absent from the U.S. less than 61 consecutive
days when he or she died.
(3) Citizen of the U.S. means any individual who acquires U.S. citizenship through birth
in the territorial U.S., birth abroad as provided under title 8, United States Code, or
through naturalization, and has not renounced his or her U.S. citizenship, or had such
citizenship cancelled, revoked, or otherwise terminated.
(4) Lawfully admitted for permanent residence means that the individual was lawfully
accorded the privilege of residing permanently in the U.S. as an immigrant by the U.S.
Citizenship and Immigration Services under title 8, United States Code, and on the date
of death, still had this status.
(b) Eligibility requirements. VA will pay burial benefits under chapter 23 of title 38,
United States Code, at the full-dollar rate, based on service described in §3.40(c) or (d),
when an individual who performed such service dies after November 1, 2000, or based
on service described in § 3.40(b) when an individual who performed such service dies
after December 15, 2003, and was on the date of death:
(1) Residing in the U.S.; and
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(2) Either -(i) A citizen of the U.S., or
(ii) An alien lawfully admitted for permanent residence in the U.S.; and
(3) Either -(i) Receiving compensation under chapter 11 of title 38, United States Code; or
(ii) Would have satisfied the disability, income and net worth requirements of § 3.3(a)(3)
of this part and would have been eligible for pension if the veteran's service had been
deemed to be active military, naval, or air service.
(c) Evidence of eligibility. (1) In a claim for full-dollar rate burial payments based on the
deceased veteran having been a natural born citizen of the U.S., a valid original or copy
of one of the following documents is required:
(i) A valid U.S. passport;
(ii) A birth certificate showing that he or she was born in the U.S.; or
(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad.
(2) In a claim based on the deceased veteran having been a naturalized citizen of the
U.S., only verification of that status by the U.S. Citizenship and Immigration Services
to VA, or a valid U.S. passport, will be sufficient proof for purposes of eligibility for
full-dollar rate benefits.
(3) In a claim based on the deceased veteran having been an alien lawfully admitted for
permanent residence in the U.S., only verification of that status by the U.S. Citizenship
and Immigration Services to VA will be sufficient proof for purposes of eligibility for
full-dollar rate benefits.
(4) VA will not pay benefits at the full-dollar rate under this section unless the evidence
establishes that the veteran was lawfully residing in the U.S. on the date of death.
(i) Such evidence should identify the veteran's name and relevant dates, and may
include:
(A) A valid driver's license issued by the state of residence;
(B) Employment records, which may consist of pay stubs, W-2 forms, and certification
of the filing of Federal, State, or local income tax returns;
(C) Residential leases, rent receipts, utility bills and receipts, or other relevant
documents showing dates of utility service at a leased residence;
(D) Hospital or medical records showing medical treatment or hospitalization of the
veteran or survivor, and showing the name of the medical facility or treating physician;
(E) Property tax bills and receipts; and
(F) School records.
(ii) A Post Office box mailing address in the veteran's name does not constitute
evidence showing that the veteran was lawfully residing in the United States on the date
of death.
[66 FR 66763, 66768, Dec. 27, 2001; 71 FR 8215, Feb. 16, 2006]
(38 U.S.C. 107, 501(a))
[EFFECTIVE DATE NOTE: 66 FR 66763, 66768, Dec. 27, 2001, added this section,
effective Dec. 27, 2001.]
——————————
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RELATIONSHIP
§ 3.50 Spouse and surviving spouse.
§ 3.52 Marriages deemed valid.
§ 3.53 Continuous cohabitation.
§ 3.54 Marriage dates.
§ 3.55 Reinstatement of benefits eligibility based upon terminated marital
relationships.
§ 3.56 [Reserved]
§ 3.57 Child.
§ 3.58 Child adopted out of family.
§ 3.59 Parent.
§ 3.60 Definition of living with.
xxix
§ 3.50 Spouse and surviving spouse.
Discussion and Analysis in the Veterans Benefits Manual
(a) Spouse. "Spouse" means a person of the opposite sex whose marriage to the veteran
meets the requirements of § 3.1(j).
(b) Surviving spouse. Except as provided in § 3.52, "surviving spouse" means a person of
the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j) and
who was the spouse of the veteran at the time of the veteran's death and:
(1) Who lived with the veteran continuously from the date of marriage to the date of the
veteran's death except where there was a separation which was due to the misconduct of,
or procured by, the veteran without the fault of the spouse; and
(2) Except as provided in § 3.55, has not remarried or has not since the death of the
veteran and after September 19, 1962, lived with another person of the opposite sex and
held himself or herself out openly to the public to be the spouse of such other person.
[41 FR 18299, May 3, 1976; 62 FR 5528, 5529, Feb. 6, 1997]
(38 U.S.C. 101(31))
[EFFECTIVE DATE NOTE: 62 FR 5528, 5529, Feb. 6, 1997, revised this section,
effective Feb. 6, 1997.]
xxx
§ 3.52 Marriages deemed valid.
Discussion and Analysis in the Veterans Benefits Manual
Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal
impediment, the marriage will nevertheless be deemed valid if:
(a) The marriage occurred 1 year or more before the veteran died or existed for any
period of time if a child was born of the purported marriage or was born to them before
such marriage (see § 3.54(d)), and
(b) The claimant entered into the marriage without knowledge of the impediment, and
(c) The claimant cohabited with the veteran continuously from the date of marriage to the
date of his or her death as outlined in § 3.53, and
(d) No claim has been filed by a legal surviving spouse who has been found entitled to
gratuitous death benefits other than accrued monthly benefits covering a period prior to
the veteran's death.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 1215, Feb. 9, 1962; 32 FR 13224, Sept.
19, 1967; 41 FR 18299, May 3, 1976]
(38 U.S.C. 103(a))
CROSS REFERENCES: Definition, marriage. See § 3.205(c).
§ 3.53 Continuous cohabitation.
(a) General. The requirement that there must be continuous cohabitation from the date of
marriage to the date of death of the veteran will be considered as having been met when
the evidence shows that any separation was due to the misconduct of, or procured by, the
veteran without the fault of the surviving spouse. Temporary separations which ordinarily
occur, including those caused for the time being through fault of either party, will not
break the continuity of the cohabitation.
(b) Findings of fact. The statement of the surviving spouse as to the reason for the
separation will be accepted in the absence of contradictory information. If the evidence
establishes that the separation was by mutual consent and that the parties lived apart for
purposes of convenience, health, business, or any other reason which did not show an
intent on the part of the surviving spouse to desert the veteran, the continuity of the
cohabitation will not be considered as having been broken. State laws will not control in
determining questions of desertion; however, due weight will be given to findings of fact
in court decisions made during the life of the veteran on issues subsequently involved in
the application of this section.
[41 FR 18300, May 3, 1976; 59 FR 32659, June 24, 1994]
38 U.S.C. 501(a).
xxxi
§ 3.54 Marriage dates.
Discussion and Analysis in the Veterans Benefits Manual
A surviving spouse may qualify for pension, compensation, or dependency and indemnity
compensation if the marriage to the veteran occurred before or during his or her service
or, if married to him or her after his or her separation from service, before the applicable
date stated in his section.
(a) Pension. Death pension may be paid to a surviving spouse who was married to the
veteran:
(1) One year or more prior to the veteran's death, or
(2) For any period of time if a child was born of the marriage, or was born to them before
the marriage, or
(3) Prior to the applicable delimiting dates, as follows:
(i) Civil War -- June 27, 1905.
(ii) Indian wars -- March 4, 1917.
(iii) Spanish-American War -- January 1, 1938.
(iv) Mexican border period and World War I -- December 14, 1944.
(v) World War II -- January 1, 1957.
(vi) Korean conflict -- February 1, 1965.
(vii) Vietnam era -- May 8, 1985.
(viii) Persian Gulf War -- January 1, 2001.
(Authority: 38 U.S.C. 532(d), 534(c), 536(c), 541(e), 541(f))[<--]
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) Compensation. Death compensation may be paid to a surviving spouse who, with
respect to date of marriage, could have qualified as a surviving spouse for death
compensation under any law administered by the Department of Veterans Affairs in
effect on December 31, 1957, or who was married to the veteran:
(1) Before the expiration of 15 years after termination of the period of service in which
the injury or disease which caused the veteran's death was incurred or aggravated, or
(2) One year or more, or
(3) For any period of time if a child was born of the marriage, or was born to them before
the marriage.
(Authority: 38 U.S.C. 1102)
Dependency and indemnity compensation. (c) Dependency and indemnity compensation.
Dependency and indemnity compensation payable under 38 U.S.C. 1310(a) may be paid
to the surviving spouse of a veteran who died on or after January 1, 1957, who was
married to the veteran:
(1) Before the expiration of 15 years after the termination of the period of service in
which the injury or disease causing the death of the veteran was incurred or aggravated,
or
(2) For 1 year or more, or
(3) For any period of time if a child was born of the marriage, or was born to them before
the marriage.
(Authority: 38 U.S.C. 1304)
(d) Child born. The term child born of the marriage means a birth on or after the date of
the marriage on which the surviving spouse's entitlement is predicated. The term born to
them before the marriage means a birth prior to the date of such marriage. Either term
includes a fetus advanced to the point of gestation required to constitute a birth under the
law of the jurisdiction in which the fetus was delivered.
(e) More than one marriage to veteran. For periods commencing on or after January 1,
1958, where a surviving spouse has been married legally to a veteran more than once, the
date of the original marriage will be used in determining whether the statutory
requirement as to date of marriage has been met.
[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 6498, July 10, 1962; 32 FR 13224,
Sept. 19, 1967; 40 FR 16064, Apr. 9, 1975; 40 FR 48680, Oct. 17, 1975; 41 FR 18300,
May 3, 1976; 44 FR 22718, Apr. 17, 1979; 54 FR 31829, Aug. 2, 1989; 56 FR 5756, Feb.
13, 1991; 56 FR 57986, Nov. 15, 1991; 65 FR 3388, 3392, Jan. 21, 2000]
(38 U.S.C. 103(b))
[EFFECTIVE DATE NOTE: 65 FR 3388, 3392, Jan. 21, 2000, amended this section,
effective Jan. 21, 2000.]
§ 3.55 Reinstatement of benefits eligibility based upon terminated marital
relationships.
xxxii
Discussion and Analysis in the Veterans Benefits Manual
(a) Surviving spouse. (1) Remarriage of a surviving spouse shall not bar the furnishing of
benefits to such surviving spouse if the marriage:
(i) Was void, or
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(ii) Has been annulled by a court having basic authority to render annulment decrees,
unless it is determined by the Department of Veterans Affairs that the annulment was
obtained through fraud by either party or by collusion.
(2) On or after January 1, 1971, remarriage of a surviving spouse terminated prior to
November 1, 1990, or terminated by legal proceedings commenced prior to November 1,
1990, by an individual who, but for the remarriage, would be considered the surviving
spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the
marriage:
(i) Has been terminated by death, or
(ii) Has been dissolved by a court with basic authority to render divorce decrees unless
the Department of Veterans Affairs determines that the divorce was secured through
fraud by the surviving spouse or by collusion.
(3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death,
divorce, or annulment, will not bar the furnishing of dependency and indemnity
compensation, unless the Secretary determines that the divorce or annulment was secured
through fraud or collusion.
(Authority: 38 U.S.C. 1311(e))
(4) On or after December 1, 1999, remarriage of a surviving spouse terminated by death,
divorce, or annulment, will not bar the furnishing of benefits relating to medical care for
survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C.
chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines
that the divorce or annulment was secured through fraud or collusion.
(Authority: 38 U.S.C. 103(d))
(5) On or after January 1, 1971, the fact that a surviving spouse has lived with another
person and has held himself or herself out openly to the public as the spouse of such other
person shall not bar the furnishing of benefits to him or her after he or she terminates the
relationship, if the relationship terminated prior to November 1, 1990.
(6) On or after October 1, 1998, the fact that a surviving spouse has lived with another
person and has held himself or herself out openly to the public as the spouse of such other
person will not bar the furnishing of dependency and indemnity compensation to the
surviving spouse if he or she ceases living with such other person and holding himself or
herself out openly to the public as such other person's spouse.
(Authority: 38 U.S.C. 1311(e))
(7) On or after December 1, 1999, the fact that a surviving spouse has lived with another
person and has held himself or herself out openly to the public as the spouse of such other
person will not bar the furnishing of benefits relating to medical care for survivors and
dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or
housing loans under 38 U.S.C. chapter 37 to the surviving spouse if he or she ceases
living with such other person and holding himself or herself out openly to the public as
such other person's spouse.
(Authority: 38 U.S.C. 103(d)).
(8) On or after January 1, 1971, the fact that benefits to a surviving spouse may
previously have been barred because his or her conduct or a relationship into which he or
she had entered had raised an inference or presumption that he or she had remarried or
had been determined to be open and notorious adulterous cohabitation, or similar conduct,
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shall not bar the furnishing of benefits to such surviving spouse after he or she terminates
the conduct or relationship, if the relationship terminated prior to November 1, 1990.
(9) Benefits under 38 U.S.C. 1781 for a surviving spouse who remarries after age 55. (i)
On or after February 4, 2003, the remarriage of a surviving spouse after age 55 shall not
bar the furnishing of benefits relating to medical care for survivors and dependents
under 38 U.S.C. 1781, subject to the limitation in paragraph (a)(9)(ii) of this section.
(ii) A surviving spouse who remarried after the age of 55, but before December 6, 2002,
may be eligible for benefits relating to medical care for survivors and dependents under
38 U.S.C. 1781 pursuant to paragraph (a)(9)(i) only if the application for such benefits
was received by VA before December 16, 2004.
(Authority: 38 U.S.C. 103).
(10) Benefits for a surviving spouse who remarries after age 57. (i) On or after January
1, 2004, the remarriage of a surviving spouse after the age of 57 shall not bar the
furnishing of benefits relating to dependency and indemnity compensation under 38
U.S.C. 1311, medical care for survivors and dependents under 38 U.S.C. 1781,
educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C.
chapter 37, subject to the limitation in paragraph (a)(10)(ii) of this section.
(ii) A surviving spouse who remarried after the age of 57, but before December 16,
2003, may be eligible for dependency and indemnity compensation under 38 U.S.C.
1311, medical care for survivors and dependents under 38 U.S.C. 1781, educational
assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37
pursuant to paragraph (a)(10)(i) only if the application for such benefits was received
by VA before December 16, 2004.
(Authority: 38 U.S.C. 103).
(b) Child. (1) Marriage of a child shall not bar the furnishing of benefits to or on account
of such child, if the marriage:
(i) Was void, or
(ii) Has been annulled by a court having basic authority to render annulment decrees,
unless it is determined by the Department of Veterans Affairs that the annulment was
obtained through fraud by either party or by collusion.
(2) On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990,
shall not bar the furnishing of benefits to or for such child provided that the marriage:
(i) Has been terminated by death, or
(ii) Has been dissolved by a court with basic authority to render divorce decrees unless
the Department of Veterans Affairs determines that the divorce was secured through
fraud by either party or by collusion.
[58 FR 32444, June 10, 1993; 60 FR 52862, 52863, Oct. 11, 1995; 64 FR 30244, 30245,
June 7, 1999; 65 FR 43699, July 14, 2000; 71 FR 29082, May 19, 2006]
(38 U.S.C. 103; 105 Stat. 424, 106 Stat. 4322)
[EFFECTIVE DATE NOTE: 64 FR 30244, 30245, June 7, 1999, amended paragraph (a),
effective Oct. 1, 1998; 65 FR 43699, July 14, 2000, amended paragraph (a), effective Dec
1, 1999.]
CROSS REFERENCES: Evidence. See §§ 3.206 and 3.207. Termination of marital
relationship or conduct. See § 3.215.
§ 3.56 [Reserved]
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§ 3.57 Child.
xxxiii
Discussion and Analysis in the Veterans Benefits Manual
(a) General. (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term
child of the veteran means an unmarried person who is a legitimate child, a child legally
adopted before the age of 18 years, a stepchild who acquired that status before the age of
18 years and who is a member of the veteran's household or was a member of the
veteran's household at the time of the veteran's death, or an illegitimate child; and
(i) Who is under the age of 18 years; or
(ii) Who, before reaching the age of 18 years, became permanently incapable of
self-support; or
(iii) Who, after reaching the age of 18 years and until completion of education or training
(but not after reaching the age of 23 years) is pursuing a course of instruction at an
approved educational institution. For the purposes of this section and § 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.
(2) For the purposes of determining entitlement of benefits based on a child's school
attendance, the term child of the veteran also includes the following unmarried persons:
(i) A person who was adopted by the veteran between the ages of 18 and 23 years.
(ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years
and who is a member of the veteran's household or was a member of the veteran's
household at the time of the veteran's death.
(3) Subject to the provisions of paragraphs (c) and (e) of this section, the term child also
includes a person who became permanently incapable of self-support before reaching the
age of 18 years, who was a member of the veteran's household at the time he or she
became 18 years of age, and who was adopted by the veteran, regardless of the age of
such person at the time of adoption.
(38 U.S.C. 101(4)(A), 104(a))
(b) Stepchild. The term means a legitimate or an illegitimate child of the veteran's spouse.
A child of a surviving spouse whose marriage to the veteran is deemed valid under the
provisions of § 3.52, and who otherwise meets the requirements of this section is
included.
(c) Adopted child. Except as provided in paragraph (e) of this section, the term means a
child adopted pursuant to a final decree of adoption, a child adopted pursuant to an
unrescinded interlocutory decree of adoption while remaining in the custody of the
adopting parent (or parents) during the interlocutory period, and a child who has been
placed for adoption under an agreement entered into by the adopting parent (or parents)
with any agency authorized under law to so act, unless and until such agreement is
terminated, while the child remains in the custody of the adopting parent (or parents)
during the period of placement for adoption under such agreement. The term includes, as
of the date of death of a veteran, such a child who:
(1) Was living in the veteran's household at the time of the veteran's death, and
(2) Was adopted by the veteran's spouse under a decree issued within 2 years after
August 25, 1959, or the veteran's death whichever is later, and
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(3) Was not receiving from an individual other than the veteran or the veteran's spouse, or
from a welfare organization which furnishes services or assistance for children, recurring
contributions of sufficient size to constitute the major portion of the child's support.
(Authority: 38 U.S.C. 101(4))
(d) Definition of child custody. The provisions of this paragraph are for the purpose of
determining entitlement to improved pension under §§ 3.23 and 3.24.
(1) Custody of a child shall be considered to rest with a veteran, surviving spouse of a
veteran or person legally responsible for the child's support if that person has the legal
right to exercise parental control and responsibility for the welfare and care of the child.
A child of the veteran residing with the veteran, surviving spouse of the veteran who is
the child's natural or adoptive parent, or person legally responsible for the child's support
shall be presumed to be in the custody of that individual. Where the veteran, surviving
spouse, or person legally responsible for the child's support has not been divested of legal
custody, but the child is not residing with that individual, the child shall be considered in
the custody of the individual for purposes of Department of Veterans Affairs benefits.
(2) The term person legally responsible for the child's support means a person who is
under a legally imposed obligation (e.g., by statute or court order) to provide for the
child's support, as well as a natural or adoptive parent who has not been divested of legal
custody. If the child's natural or adoptive parent has remarried, the stepparent may also be
considered a person legally responsible for the child's support. A child shall be
considered in the joint custody of his or her stepparent and natural or adoptive parent so
long as the natural or adoptive parent and the stepparent are not estranged and residing
apart, and the natural or adoptive parent has not been divested of legal custody. When a
child is in such joint custody the combined income of the natural or adoptive parent and
the stepparent shall be included as income of the person legally responsible for support
under § 3.24(c).
(3) A person having custody of a child prior to the time the child attains age 18 shall be
considered to retain custody of the child for periods on and after the child's 18th birthday,
unless the person is divested of legal custody. This applies without regard to when a child
reaches the age of majority under applicable State law. This also applies without regard
to whether the child was entitled to pension prior to age 18, or whether increased pension
was payable to a veteran or surviving spouse on behalf of the child prior to the child's
18th birthday. If the child's custodian dies after the child has attained age 18, the child
shall be considered to be in custody of a successor custodian provided the successor
custodian has the right to exercise parental control and responsibility for the welfare and
care of the child.
(Authority: 38 U.S.C. 501, 1521(c), 1541(c))
(e) Child adopted under foreign law -- (1) General. The provisions of this paragraph are
applicable to a person adopted under the laws of any jurisdiction other than a State. The
term State is defined in 38 U.S.C. 101(20) and also includes the Commonwealth of the
Northern Mariana Islands. The term veteran includes, for the purposes of this paragraph,
a Commonwealth Army veteran or new Philippine Scout as defined in 38 U.S.C. 3566.
(2) Adopted child of living veteran. A person residing outside any of the States shall not
be considered to be a legally adopted child of a veteran during the lifetime of the veteran
unless all of the following conditions are met.
(i) The person was less than 18 years of age at the time of adoption.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
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(ii) The person is receiving one-half or more of the person's support from the veteran.
(iii) The person is not in the custody of the person's natural parent unless the natural
parent is the veteran's spouse.
(iv) The person is residing with the veteran (or in the case of divorce following adoption,
with the divorced spouse who is also a natural or adoptive parent) except for periods
during which the person is residing apart from the veteran for purposes of full-time
attendance at an educational institution or during which the person or the veteran is
confined in a hospital, nursing home, other health-care facility, or other institution.
(3) Adopted child of deceased veteran. A person shall not be considered to have been a
legally adopted child of a veteran as of the date of the veteran's death and thereafter
unless one of the following conditions is met.
(i) The veteran was entitled to and was receiving for the person a dependent's allowance
or similar monetary benefit payable under title 38, United States Code at any time within
the 1-year period immediately preceding the veteran's death; or
(ii) The person met the requirements of paragraph (e)(2) of this section for a period of at
least 1 year prior to the veteran's death.
(4) Verification. In the case of an adopted child of a living veteran, the requirements of
paragraphs (e)(2)(ii), (iii) and (iv) of this section are for prospective application. That is,
in addition to meeting all of the requirements of paragraph (e)(2) of this section at the
time of initial adjudication, benefits are not payable thereafter for or to a child adopted
under the laws of any jurisdiction other than a State unless the requirements of
paragraphs (e)(2)(ii), (iii) and (iv) of this section continue to be met. Consequently,
whenever Department of Veterans Affairs benefits are payable to or for a child adopted
under the laws of any jurisdiction other than a State, and the veteran who adopted the
child is living, the beneficiary shall submit, upon Department of Veterans Affairs request,
a report, or other evidence, to determine if the requirements of paragraph (e)(2)(ii), (iii),
and (iv) of this section were met for any period for which payment was made for or to the
child and whether such requirements will continue to be met for future entitlement
periods. Failure to submit the requested report or evidence within a reasonable time from
date of request may result in termination of benefits payable for or to the child.
[44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at 45 FR 25391,
April 15, 1980; 49 FR 47003, Nov. 30, 1984; 62 FR 51274, 51281, Sept. 30, 1997; 65 FR
12116, Mar. 8, 2000]
(38 U.S.C. 101(4), 501)
[EFFECTIVE DATE NOTE: 65 FR 12116, Mar. 8, 2000, revised paragraph (a)(1)(iii),
effective Mar. 8, 2000.]
CROSS REFERENCES: Improved pension rates. See § 3.23. Improved pension rates;
surviving children. See § 3.24. Child's relationship. See § 3.210. Helplessness. See §
3.403(a)(1). Helplessness. See § 3.503(a)(3). School attendance. See § 3.667. Helpless
children -- Spanish-American and prior wars. See § 3.950.
§ 3.58 Child adopted out of family.
A child of a veteran adopted out of the family of the veteran either prior or subsequent to
the veteran's death is nevertheless a child within the meaning of that term as defined by §
3.57 and is eligible for benefits payable under all laws administered by the Department of
Veterans Affairs.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[26 FR 1568, Feb. 24, 1961]
38 U.S.C. 501(a).
CROSS REFERENCE: Veteran's benefits not apportionable. See § 3.458.
xxxiv
§ 3.59 Parent.
Discussion and Analysis in the Veterans Benefits Manual
(a) The term parent means a natural mother or father (including the mother of an
illegitimate child or the father of an illegitimate child if the usual family relationship
existed), mother or father through adoption, or a person who for a period of not less than
1 year stood in the relationship of a parent to a veteran at any time before his or her entry
into active service.
(b) Foster relationship must have begun prior to the veteran's 21st birthday. Not more
than one father and one mother, as defined, will be recognized in any case. If two persons
stood in the relationship of father or mother for 1 year or more, the person who last stood
in such relationship before the veteran's last entry into active service will be recognized
as the parent.
[26 FR 1568, Feb. 24, 1961, as amended at 44 FR 45935, Aug. 6, 1979]
(38 U.S.C. 101(5))
§ 3.60 Definition of living with.
For the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person
shall be considered as living with his or her spouse even though they reside apart unless
they are estranged.
[44 FR 45935, Aug. 6, 1979]
(38 U.S.C. 1521(h)(2))
——————————
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ADMINISTRATIVE
§ 3.100 Delegations of authority.
§ 3.102 Reasonable doubt.
§ 3.103 Procedural due process and appellate rights.
§ 3.104 Finality of decisions.
§ 3.105 Revision of decisions.
§ 3.106 Renouncement.
§ 3.107 Awards where not all dependents apply.
§ 3.108 State Department as agent of Department of Veterans Affairs.
§ 3.109 Time limit.
§ 3.110 Computation of time limit.
§ 3.111 [Reserved]
§ 3.112 Fractions of one cent.
§ 3.114 Change of law or Department of Veterans Affairs issue.
§ 3.115 Access to financial records.
§ 3.100 Delegations of authority.
(a) Authority is delegated to the Under Secretary for Benefits and to supervisory or
adjudicative personnel within the jurisdiction of the Veterans Benefits Administration
designated by the Under Secretary to make findings and decisions under the applicable
laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits
under all laws administered by the Department of Veterans Affairs governing the
payment of monetary benefits to veterans and their dependents, within the jurisdiction of
Compensation and Pension Service.
(b) Authority is delegated to the Director, Compensation and Pension Service, and to
personnel of that service designated by him to determine whether a claimant or payee has
forfeited the right to gratuitious benefits or to remit a prior forfeiture pursuant to the
provisions of 38 U.S.C. 6103 or 6104. See § 3.905.
(c) [Redesignated as paragraph (b). 60 FR 18355, Apr. 11, 1995.]
[29 FR 7547, June 12, 1964, as amended at 31 FR 14455, Nov. 10, 1966; 37 FR 10442,
May 23, 1972; 53 FR 3207, Feb. 4, 1988; 60 FR 18355, Apr. 11, 1995; 61 FR 20726,
20727, May 8, 1996]
(38 U.S.C. 512(a))
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, substituted "Under
Secretary for Benefits" for "Chief Benefits Director" and "Under Secretary" for
"Director" in paragraph (a), effective May 8, 1996.]
xxxv
§ 3.102 Reasonable doubt.
Discussion and Analysis in the Veterans Benefits Manual
It is the defined and consistently applied policy of the Department of Veterans Affairs to
administer the law under a broad interpretation, consistent, however, with the facts shown
in every case. When, after careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree of disability, or any other
point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
one which exists because of an approximate balance of positive and negative evidence
which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one
within the range of probability as distinguished from pure speculation or remote
possibility. It is not a means of reconciling actual conflict or a contradiction in the
evidence. Mere suspicion or doubt as to the truth of any statements submitted, as
distinguished from impeachment or contradiction by evidence or known facts, is not
justifiable basis for denying the application of the reasonable doubt doctrine if the entire,
complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine
is also applicable even in the absence of official records, particularly if the basic incident
allegedly arose under combat, or similarly strenuous conditions, and is consistent with the
probable results of such known hardships.
[50 FR 34458, Aug. 26, 1985; 66 FR 45620, 45630, Aug. 29, 2001]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 66 FR 45620, 45630, Aug. 29, 2001, amended this section,
effective Nov. 9, 2000.]
xxxvi
§ 3.103 Procedural due process and appellate rights.
Discussion and Analysis in the Veterans Benefits Manual
(a) Statement of policy. Every claimant has the right to written notice of the decision
made on his or her claim, the right to a hearing, and the right of representation.
Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a
claimant in developing the facts pertinent to the claim and to render a decision which
grants every benefit that can be supported in law while protecting the interests of the
Government. The provisions of this section apply to all claims for benefits and relief, and
decisions thereon, within the purview of this part 3.
(b) The right to notice -- (1) General. Claimants and their representatives are entitled to
notice of any decision made by VA affecting the payment of benefits or the granting of
relief. Such notice shall clearly set forth the decision made, any applicable effective date,
the reason(s) for the decision, the right to a hearing on any issue involved in the claim,
the right of representation and the right, as well as the necessary procedures and time
limits, to initiate an appeal of the decision.
(2) Advance notice and opportunity for hearing. Except as otherwise provided in
paragraph (b)(3) of this section, no award of compensation, pension or dependency and
indemnity compensation shall be terminated, reduced or otherwise adversely affected
unless the beneficiary has been notified of such adverse action and has been provided a
period of 60 days in which to submit evidence for the purpose of showing that the
adverse action should not be taken.
(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a
written notice to the beneficiary or his or her fiduciary at the same time it takes an
adverse action under the following circumstances:
(i) An adverse action based solely on factual and unambiguous information or statements
as to income, net worth, or dependency or marital status that the beneficiary or his or her
fiduciary provided to VA in writing or orally (under the procedures set forth in §
3.217(b)), with knowledge or notice that such information would be used to calculate
benefit amounts.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
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(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a
required eligibility verification report.
(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event
that VA has received a death certificate, a terminal hospital report verifying the death of a
beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous
or otherwise) will be required.
(iv) An adverse action based upon a written and signed statement provided by the
beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).
(v) An adverse action based upon a written statement provided to VA by a veteran
indicating that he or she has returned to active service, the nature of that service, and the
date of reentry into service, with the knowledge or notice that receipt of active service
pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding
active service pay).
(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).
(Authority: 38 U.S.C. 501(a))
(4) Restoration of benefits. VA will restore retroactively benefits that were reduced,
terminated, or otherwise adversely affected based on oral information or statements if
within 30 days of the date on which VA issues the notification of adverse action the
beneficiary or his or her fiduciary asserts that the adverse action was based upon
information or statements that were inaccurate or upon information that was not provided
by the beneficiary or his or her fiduciary. This will not preclude VA from taking
subsequent action that adversely affects benefits.
(c) The right to a hearing. (1) Upon request, a claimant is entitled to a hearing at any time
on any issue involved in a claim within the purview of part 3 of this chapter, subject to
the limitations described in § 20.1304 of this chapter with respect to hearings in claims
which have been certified to the Board of Veterans Appeals for appellate review. VA will
provide the place of hearing in the VA office having original jurisdiction over the claim
or at the VA office nearest the claimant's home having adjudicative functions, or, subject
to available resources and solely at the option of VA, at any other VA facility or federal
building at which suitable hearing facilities are available. VA will provide one or more
employees who have original determinative authority of such issues to conduct the
hearing and be responsible for establishment and preservation of the hearing record.
Hearings in connection with proposed adverse actions and appeals shall be held before
one or more VA employees having original determinative authority who did not
participate in the proposed action or the decision being appealed. All expenses incurred
by the claimant in connection with the hearing are the responsibility of the claimant.
(2) The purpose of a hearing is to permit the claimant to introduce into the record, in
person, any available evidence which he or she considers material and any arguments or
contentions with respect to the facts and applicable law which he or she may consider
pertinent. All testimony will be under oath or affirmation. The claimant is entitled to
produce witnesses, but the claimant and witnesses are expected to be present. The
Veterans Benefits Administration will not normally schedule a hearing for the sole
purpose of receiving argument from a representative. It is the responsibility of the VA
employee or employees conducting the hearings to explain fully the issues and suggest
the submission of evidence which the claimant may have overlooked and which would be
of advantage to the claimant's position. To assure clarity and completeness of the hearing
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
record, questions which are directed to the claimant and to witnesses are to be framed to
explore fully the basis for claimed entitlement rather than with an intent to refute
evidence or to discredit testimony. In cases in which the nature, origin, or degree of
disability is in issue, the claimant may request visual examination by a physician
designated by VA and the physician's observations will be read into the record.
(Authority: 38 U.S.C. 501)
(d) Submission of evidence. Any evidence whether documentary, testimonial, or in other
form, offered by the claimant in support of a claim and any issue a claimant may raise
and any contention or argument a claimant may offer with respect thereto are to be
included in the records.
(e) The right to representation. Subject to the provisions of §§ 14.626 through 14.637 of
this title, claimants are entitled to representation of their choice at every stage in the
prosecution of a claim.
(f) Notification of decisions. The claimant or beneficiary and his or her representative
will be notified in writing of decisions affecting the payment of benefits or granting relief.
All notifications will advise the claimant of the reason for the decision; the date the
decision will be effective; the right to a hearing subject to paragraph (c) of this section;
the right to initiate an appeal by filing a Notice of Disagreement which will entitle the
individual to a Statement of the Case for assistance in perfecting an appeal; and the
periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on
appeals). Further, any notice that VA has denied a benefit sought will include a summary
of the evidence considered.
(Authority: 38 U.S.C. 5104)
[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148,
May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360,
Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb.
14, 1994; 66 FR 56613, Nov. 9, 2001]
(38 U.S.C. 501, 1115, 1506, 5104.)
[EFFECTIVE DATE NOTE: 66 FR 56613, Nov. 9, 2001, amended this section, effective
Dec. 10, 2001.]
§ 3.104 Finality of decisions.
(a) A decision of a duly constituted rating agency or other agency of original jurisdiction
shall be final and binding on all field offices of the Department of Veterans Affairs as to
conclusions based on the evidence on file at the time VA issues written notification in
accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject
to revision on the same factual basis except by duly constituted appellate authorities or
except as provided in § 3.105 and § 3.2600 of this part.
(b) Current determinations of line of duty, character of discharge, relationship,
dependency, domestic relations questions, homicide, and findings of fact of death or
presumptions of death made in accordance with existing instructions, and by application
of the same criteria and based on the same facts, by either an Adjudication activity or an
Insurance activity are binding one upon the other in the absence of clear and
unmistakable error.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec.
19, 1991; 66 FR 21871, 21874, May 2, 2001, as corrected at 66 FR 23763, May 9, 2001]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 66 FR 21871, 21874, May 2, 2001, amended paragraph (a),
effective June 1, 2001.]
§ 3.105 Revision of decisions.
xxxvii
Discussion and Analysis in the Veterans Benefits Manual
The provisions of this section apply except where an award was based on an act of
commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is
a change in law or a Department of Veterans Affairs issue, or a change in interpretation
of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes
that service connection was clearly illegal. The provisions with respect to the date of
discontinuance of benefits are applicable to running awards. Where the award has been
suspended, and it is determined that no additional payments are in order, the award will
be discontinued effective date of last payment.
(a) Error. Previous determinations which are final and binding, including decisions of
service connection, degree of disability, age, marriage, relationship, service, dependency,
line of duty, and other issues, will be accepted as correct in the absence of clear and
unmistakable error. Where evidence establishes such error, the prior decision will be
reversed or amended. For the purpose of authorizing benefits, the rating or other
adjudicative decision which constitutes a reversal of a prior decision on the grounds of
clear and unmistakable error has the same effect as if the corrected decision had been
made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of
this section, where an award is reduced or discontinued because of administrative error or
error in judgment, the provisions of § 3.500(b)(2) will apply.
(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a
revision or an amendment of a previous decision is warranted, a difference of opinion
being involved rather than a clear and unmistakable error, the proposed revision will be
recommended to Central Office. However, a decision may be revised under § 3.2600
without being recommended to Central Office.
(c) Character of discharge. A determination as to character of discharge or line of duty
which would result in discontinued entitlement is subject to the provisions of paragraph
(d) of this section.
(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and
3.957, service connection will be severed only where evidence establishes that it is
clearly and unmistakably erroneous (the burden of proof being upon the Government).
(Where service connection is severed because of a change in or interpretation of a law or
Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A
change in diagnosis may be accepted as a basis for severance action if the examining
physician or physicians or other proper medical authority certifies that, in the light of all
accumulated evidence, the diagnosis on which service connection was predicated is
clearly erroneous. This certification must be accompanied by a summary of the facts,
findings, and reasons supporting the conclusion. When severance of service connection is
considered warranted, a rating proposing severance will be prepared setting forth all
material facts and reasons. The claimant will be notified at his or her latest address of
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
record of the contemplated action and furnished detailed reasons therefor and will be
given 60 days for the presentation of additional evidence to show that service connection
should be maintained. Unless otherwise provided in paragraph (i) of this section, if
additional evidence is not received within that period, final rating action will be taken and
the award will be reduced or discontinued, if in order, effective the last day of the month
in which a 60-day period from the date of notice to the beneficiary of the final rating
action expires.
(Authority: 38 U.S.C. 5112(b)(6))
(e) Reduction in evaluation -- compensation. Where the reduction in evaluation of a
service-connected disability or employability status is considered warranted and the
lower evaluation would result in a reduction or discontinuance of compensation payments
currently being made, a rating proposing the reduction or discontinuance will be prepared
setting forth all material facts and reasons. The beneficiary will be notified at his or her
latest address of record of the contemplated action and furnished detailed reasons therefor,
and will be given 60 days for the presentation of additional evidence to show that
compensation payments should be continued at their present level. Unless otherwise
provided in paragraph (i) of this section, if additional evidence is not received within that
period, final rating action will be taken and the award will be reduced or discontinued
effective the last day of the month in which a 60-day period from the date of notice to the
beneficiary of the final rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))
(f) Reduction in evaluation -- pension. Where a change in disability or employability
warrants a reduction or discontinuance of pension payments currently being made, a
rating proposing the reduction or discontinuance will be prepared setting forth all
material facts and reasons. The beneficiary will be notified at his or her latest address of
record of the contemplated action and furnished detailed reasons therefor, and will be
given 60 days for the presentation of additional evidence to show that pension benefits
should be continued at their present level. Unless otherwise provided in paragraph (i) of
this section, if additional evidence is not received within that period, final rating action
will be taken and the award will be reduced or discontinued effective the last day of the
month in which the final rating action is approved.
(Authority: 38 U.S.C. 5112(b)(5))
(g) Reduction in evaluation -- monetary allowance under 38 U.S.C. chapter 18 for certain
individuals who are children of Vietnam veterans. Where a reduction or discontinuance
of a monetary allowance currently being paid under 38 U.S.C. chapter 18 is considered
warranted, VA will notify the beneficiary at his or her latest address of record of the
proposed reduction, furnish detailed reasons therefor, and allow the beneficiary 60 days
to present additional evidence to show that the monetary allowance should be continued
at the present level. Unless otherwise provided in paragraph (i) of this section, if VA does
not receive additional evidence within that period, it will take final rating action and
reduce the award effective the last day of the month following 60 days from the date of
notice to the beneficiary of the proposed reduction.
(Authority: 38 U.S.C. 1822, 5112(b)(6))
(h) Other reductions/discontinuances. Except as otherwise specified at § 3.103(b)(3) of
this part, where a reduction or discontinuance of benefits is warranted by reason of
information received concerning income, net worth, dependency, or marital or other
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status, a proposal for the reduction or discontinuance will be prepared setting forth all
material facts and reasons. The beneficiary will be notified at his or her latest address of
record of the contemplated action and furnished detailed reasons therefor, and will be
given 60 days for the presentation of additional evidence to show that the benefits should
be continued at their present level. Unless otherwise provided in paragraph (i) of this
section, if additional evidence is not received within that period, final adverse action will
be taken and the award will be reduced or discontinued effective as specified under the
provisions of §§ 3.500 through 3.503 of this part.
(Authority: 38 U.S.C. 5112)
(i) Predetermination hearings. (1) In the advance written notice concerning proposed
actions under paragraphs (d) through (h) of this section, the beneficiary will be informed
that he or she will have an opportunity for a predetermination hearing, provided that a
request for such a hearing is received by VA within 30 days from the date of the notice. If
a timely request is received, VA will notify the beneficiary in writing of the time and
place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day
advance notice may be waived by agreement between VA and the beneficiary or
representative. The hearing will be conducted by VA personnel who did not participate in
the proposed adverse action and who will bear the decision-making responsibility. If a
predetermination hearing is timely requested, benefit payments shall be continued at the
previously established level pending a final determination concerning the proposed
action.
(2) Following the predetermination procedures specified in this paragraph and paragraph
(d), (e), (f), (g) or (h) of this section, whichever is applicable, final action will be taken. If
a predetermination hearing was not requested or if the beneficiary failed without good
cause to report for a scheduled predetermination hearing, the final action will be based
solely upon the evidence of record. Examples of good cause include, but are not limited
to, the illness or hospitalization of the claimant or beneficiary, death of an immediate
family member, etc. If a predetermination hearing was conducted, the final action will be
based on evidence and testimony adduced at the hearing as well as the other evidence of
record including any additional evidence obtained following the hearing pursuant to
necessary development. Whether or not a predetermination hearing was conducted, a
written notice of the final action shall be issued to the beneficiary and his or her
representative, setting forth the reasons therefor and the evidence upon which it is based.
Where a reduction or discontinuance of benefits is found warranted following
consideration of any additional evidence submitted, the effective date of such reduction
or discontinuance shall be as follows:
(i) Where reduction or discontinuance was proposed under the provisions of paragraph (d)
or (e) of this section, the effective date of final action shall be the last day of the month in
which a 60-day period from the date of notice to the beneficiary of the final action
expires.
(ii) Where reduction or discontinuance was proposed under the provisions of paragraphs
(f) and (g) of this section, the effective date of final action shall be the last day of the
month in which such action is approved.
(iii) Where reduction or discontinuance was proposed under the provisions of paragraph
(h) of this section, the effective date of final action shall be as specified under the
provisions of §§ 3.500 through 3.503 of this part.
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(Authority: 38 U.S.C. 5112)
[26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222,
May 14, 1974; 55 FR 13528, April 11, 1990; 56 FR 65846, Dec. 19, 1991; 57 FR 56993,
Dec. 2, 1992; 62 FR 51274, 51278, Sept. 30, 1997; 66 FR 21871, 21874, May 2, 2001;
67 FR 49585, 49586, July 31, 2002]
[EFFECTIVE DATE NOTE: 66 FR 21871, 21874, May 2, 2001, added a sentence to the
end of paragraph (b), effective June 1, 2001; 67 FR 49585, 49586, July 31, 2002, revised
paragraph (g), effective July 31, 2002.]
CROSS REFERENCES: Effective dates. See § 3.400. Reductions and discontinuances.
See § 3.500. Protection; service connection. See § 3.957.
§ 3.106 Renouncement.
xxxviii
Discussion and Analysis in the Veterans Benefits Manual
(a) Any person entitled to pension, compensation, or dependency and indemnity
compensation under any of the laws administered by the Department of Veterans Affairs
may renounce his or her right to that benefit but may not renounce less than all of the
component items which together comprise the total amount of the benefit to which the
person is entitled nor any fixed monetary amounts less than the full amount of entitlement.
The renouncement will be in writing over the person's signature. Upon receipt of such
renouncement in the Department of Veterans Affairs, payment of such benefits and the
right thereto will be terminated, and such person will be denied any and all rights thereto
from such filing.
(Authority: 38 U.S.C. 5306(a))
(b) The renouncement will not preclude the person from filing a new application for
pension, compensation, or dependency and indemnity compensation at any future date.
Such new application will be treated as an original application, and no payments will be
made thereon for any period before the date such new application is received in the
Department of Veterans Affairs.
(Authority: 38 U.S.C. 5306(b))
(c) Notwithstanding the provisions of paragraph (b) of this section, if a new application
for pension or parents' dependency and indemnity compensation is filed within one year
after the date that the Department of Veterans Affairs receives a renouncement of that
benefit, such application shall not be treated as an original application and benefits will
be payable as if the renouncement had not occurred.
(Authority: 38 U.S.C. 5306(c))
(d) The renouncement of dependency and indemnity compensation by one beneficiary
will not serve to increase the rate payable to any other beneficiary in the same class.
(e) The renouncement of dependency and indemnity compensation by a surviving spouse
will not serve to vest title to this benefit in children under the age of 18 years or to
increase the rate payable to a child or children over the age of 18 years.
[26 FR 1569, Feb. 24, 1961, as amended at 37 FR 5384, March 15, 1972; 39 FR 17222,
May 14, 1974; 60 FR 18355, April 11, 1995; 62 FR 5528, 5529, Feb. 6, 1997]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 62 FR 5528, 5529, Feb. 6, 1997, substituted "surviving
spouse" for "widow" in paragraph (e), effective Feb. 6, 1997.]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
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§ 3.107 Awards where not all dependents apply.
Except as provided in § 3.251(a)(4), in any case where claim has not been filed by or on
behalf of all dependents who may be entitled, the awards (original or amended) for those
dependents who have filed claim will be made for all periods at the rates and in the same
manner as though there were no other dependents. However, if the file reflects the
existence of other dependents who have not filed claim and there is potential entitlement
to benefits for a period prior to the date of filing claim, the award to a person who has
filed claim will be made at the rate which would be payable if all dependents were
receiving benefits. If at the expiration of the period allowed, claims have not been filed
for such dependents, the full rate will be authorized for the first payee.
[29 FR 9564, July 15, 1964; 61 FR 67949, 67950, Dec. 26, 1996]
[EFFECTIVE DATE NOTE: 61 FR 67949, 67950, Dec. 26, 1996, revised the section
heading effective Dec. 26, 1996.]
§ 3.108 State Department as agent of Department of Veterans Affairs.
Diplomatic and consular officers of the Department of State are authorized to act as
agents of the Department of Veterans Affairs and therefore a formal or informal claim or
evidence submitted in support of a claim filed in a foreign country will be considered as
filed in the Department of Veterans Affairs as of the date of receipt by the State
Department representative.
[26 FR 1569, Feb. 24, 1961]
38 U.S.C. 501(a).
[CROSS REFERENCE: Evidence from foreign countries. See § 3.202.]
xxxix
§ 3.109 Time limit.
Discussion and Analysis in the Veterans Benefits Manual
(a) Notice of time limit for filing evidence. (1) If a claimant's application is incomplete,
the claimant will be notified of the evidence necessary to complete the application. If the
evidence is not received within 1 year from the date of such notification, pension,
compensation, or dependency and indemnity compensation may not be paid by reason of
that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person
who has filed claim is not considered evidence.
(2) The provisions of this paragraph are applicable to original applications, formal or
informal, and to applications for increased benefits by reason of increased disability, age,
or the existence of a dependent and to applications for reopening or resumption of
payments. If substantiating evidence is required with respect to the veracity of a witness
or the authenticity of documentary evidence timely filed, there will be allowed for the
submission of such evidence 1 year from the date of the request therefor. However, any
evidence to enlarge the proofs and evidence originally submitted is not so included.
(b) Extension of time limit. Time limits within which claimants or beneficiaries are
required to act to perfect a claim or challenge an adverse VA decision may be extended
for good cause shown. Where an extension is requested after expiration of a time limit,
the action required of the claimant or beneficiary must be taken concurrent with or prior
to the filing of a request for extension of the time limit, and good cause must be shown as
to why the required action could not have been taken during the original time period and
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
could not have been taken sooner than it was. Denials of time limit extensions are
separately appealable issues.
[26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan.
29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990]
(38 U.S.C. 501)
§ 3.110 Computation of time limit.
(a) In computing the time limit for any action required of a claimant or beneficiary,
including the filing of claims or evidence requested by VA, the first day of the specified
period will be excluded and the last day included. This rule is applicable in cases in
which the time limit expires on a workday. Where the time limit would expire on a
Saturday, Sunday, or holiday, the next succeeding workday will be included in the
computation.
(b) The first day of the specified period referred to in paragraph (a) of this section shall
be the date of mailing of notification to the claimant or beneficiary of the action required
and the time limit therefor. The date of the letter of notification shall be considered the
date of mailing for purposes of computing time limits. As to appeals, see §§ 20.302 and
20.305 of this chapter.
[55 FR 13529, Apr. 11, 1990, as amended at 58 FR 32443, June 10, 1993]
(38 U.S.C. 501)
§ 3.111 [Reserved]
§ 3.112 Fractions of one cent.
In all cases where the amount to be paid under any award involves a fraction of a cent,
the fractional part will be excluded.
[26 FR 1570, Feb. 24, 1961]
38 U.S.C. 501(a).
xl
§ 3.114 Change of law or Department of Veterans Affairs issue.
Discussion and Analysis in the Veterans Benefits Manual
(a) Effective date of award. Where pension, compensation, dependency and indemnity
compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who
is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law, or a
liberalizing VA issue approved by the Secretary or by the Secretary's direction, the
effective date of such award or increase shall be fixed in accordance with the facts found,
but shall not be earlier than the effective date of the act or administrative issue. Where
pension, compensation, dependency and indemnity compensation, or a monetary
allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam
veteran is awarded or increased pursuant to a liberalizing law or VA issue which became
effective on or after the date of its enactment or issuance, in order for a claimant to be
eligible for a retroactive payment under the provisions of this paragraph the evidence
must show that the claimant met all eligibility criteria for the liberalized benefit on the
effective date of the liberalizing law or VA issue and that such eligibility existed
continuously from that date to the date of claim or administrative determination of
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
entitlement. The provisions of this paragraph are applicable to original and reopened
claims as well as claims for increase.
(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of
the law or VA issue, or at the request of a claimant received within 1 year from that date,
benefits may be authorized from the effective date of the law or VA issue.
(2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date
of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date
of administrative determination of entitlement.
(3) If a claim is reviewed at the request of the claimant more than 1 year after the
effective date of the law or VA issue, benefits may be authorized for a period of 1 year
prior to the date of receipt of such request.
(Authority: 38 U.S.C. 1822, 5110(g))
(b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in
order because of a change in law or a Department of Veterans Affairs issue, or because of
a change in interpretation of a law or Department of Veterans Affairs issue, the payee
will be notified at his or her latest address of record of the contemplated action and
furnished detailed reasons therefor, and will be given 60 days for the presentation of
additional evidence. If additional evidence is not received within that period, the award
will be reduced or discontinued effective the last day of the month in which the 60-day
period expired.
(Authority: 38 U.S.C. 5112(b)(6))
[27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706,
Apr. 11, 1997; 65 FR 35280, 35282, June 2, 2000; 67 FR 49585, 49586, July 31, 2002]
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, amended paragraph (a),
effective July 31, 2002.]
§ 3.115 Access to financial records.
(a) The Secretary of Veterans Affairs may request from a financial institution the names
and addresses of its customers. Each such request, however, shall include a certification
that the information is necessary for the proper administration of benefits programs under
the laws administered by the Secretary, and cannot be obtained by a reasonable search of
records and information of the Department of Veterans Affairs.
(b) Information received pursuant to a request referred to in paragraph (a) of this section
shall not be used for any purpose other than the administration of benefits programs
under the laws administered by the Secretary if the disclosure of that information would
otherwise be prohibited by any provision of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3401 through 3422).
[58 FR 32445, June 10, 1993]
(38 U.S.C. 5319)
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
CLAIMS
§ 3.150 Forms to be furnished.
§ 3.151 Claims for disability benefits.
§ 3.152 Claims for death benefits.
§ 3.153 Claims filed with Social Security.
§ 3.154 Injury due to hospital treatment, etc.
§ 3.155 Informal claims.
§ 3.156 New and material evidence.
§ 3.157 Report of examination or hospitalization as claim for increase or to reopen.
§ 3.158 Abandoned claims.
§ 3.159 Department of Veterans Affairs assistance in developing claims.
§ 3.160 Status of claims.
§ 3.150 Forms to be furnished.
xli
Discussion and Analysis in the Veterans Benefits Manual
(a) Upon request made in person or in writing by any person applying for benefits under
the laws administered by the Department of Veterans Affairs, the appropriate application
form will be furnished.
(Authority: 38 U.S.C. 5102)
(b) Upon receipt of notice of death of a veteran, the appropriate application form will be
forwarded for execution by or on behalf of any dependent who has apparent entitlement
to pension, compensation, or dependency and indemnity compensation. If it is not
indicated that any person would be entitled to such benefits, but there is payable an
accrued benefit not paid during the veteran's lifetime, the appropriate application form
will be forwarded to the preferred dependent. Notice of the time limit will be included in
letters forwarding applications for benefits.
(c) When disability or death is due to Department of Veterans Affairs hospital treatment,
training, medical or surgical treatment, or examination, a specific application for benefits
will not be initiated.
[26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965; 67 FR 40867, June
14, 2002]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 67 FR 40867, June 14, 2002, revised the cross reference at
the end of the section, effective June 14, 2002.]
Cross Reference: Extension of time limit. See § 3.109(b).
xlii
§ 3.151 Claims for disability benefits.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. A specific claim in the form prescribed by the Secretary must be filed in
order for benefits to be paid to any individual under the laws administered by VA. (38
U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim
for pension; and a claim by a veteran for pension may be considered to be a claim for
compensation. The greater benefit will be awarded, unless the claimant specifically elects
the lesser benefit.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) Retroactive disability pension claims. Where disability pension entitlement is
established based on a claim received by VA on or after October 1, 1984, the pension
award may not be effective prior to the date of receipt of the pension claim unless the
veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity
may be filed separately or included in the claim for disability pension, but it must be
received by VA within one year from the date on which the veteran became permanently
and totally disabled. Additional requirements for entitlement to a retroactive pension
award are contained in § 3.400(b) of this part.
[50 FR 25981, June 24, 1985]
(38 U.S.C 5110(b)(3))
CROSS REFERENCE: Informal claims. See § 3.155(b).
xliii
§ 3.152 Claims for death benefits.
Discussion and Analysis in the Veterans Benefits Manual
(a) A specific claim in the form prescribed by the Secretary (or jointly with the
Commissioner of Social Security, as prescribed by § 3.153) must be filed in order for
death benefits to be paid to any individual under the laws administered by VA. (See §
3.400(c) concerning effective dates of awards.)
(Authority: 38 U.S.C. 55101(a))
(b)(1) A claim by a surviving spouse or child for compensation or dependency and
indemnity compensation will also be considered to be a claim for death pension and
accrued benefits, and a claim by a surviving spouse or child for death pension will be
considered to be a claim for death compensation or dependency and indemnity
compensation and accrued benefits.
(Authority: 38 U.S.C. 5101(b)(1))
(2) A claim by a parent for compensation or dependency and indemnity compensation
will also be considered to be a claim for accrued benefits.
(Authrotiy: 38 U.S.C. 5101(b)(2))
(c)(1) Where a child's entitlement to dependency and indemnity compensation arises by
reason of termination of a surviving spouse's right to dependency and indemnity
compensation or by reason of attaining the age of 18 years, a claim will be required. (38
U.S.C. 5110(e).) (See paragraph (c)(4) of this section.) Where the award to the surviving
spouse is terminated by reason of her or his death, a claim for the child will be considered
a claim for any accrued benefits which may be payable.
(2) A claim filed by a surviving spouse who does not have entitlement will be accepted as
a claim for a child or children in her or his custody named in the claim.
(3) Where a claim of a surviving spouse is disallowed for any reason whatsoever and
where evidence requested in order to determine entitlement from a child or children
named in the surviving spouse's claim is submitted within 1 year from the date of request,
requested either before or after disallowance of the surviving spouse's claim, an award for
the child or children will be made as though the disallowed claim had been filed solely on
their behalf. Otherwise, payments may not be made for the child or children for any
period prior to the date of receipt of a new claim.
(4) Where payments of pension, compensation or dependency and indemnity
compensation to a surviving spouse have been discontinued because of remarriage or
death, or a child becomes eligible for dependency and indemnity compensation by reason
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
of attaining the age of 18 years, and any necessary evidence is submitted within 1 year
from date of request, an award for the child or children named in the surviving spouse's
claim will be made on the basis of the surviving spouse's claim having been converted to
a claim on behalf of the child. Otherwise, payments may not be made for any period prior
to the date of receipt of a new claim.
[50 FR 25981, June 24, 1985; 71 FR 44915, August 8, 2006]
(38 U.S.C 501)
CROSS REFERENCES: State Department as agent of Department of Verterans Affairs.
See § 3.108. Change in status of dependents. See § 3.651.
xliv
§ 3.153 Claims filed with Social Security.
Discussion and Analysis in the Veterans Benefits Manual
An application on a form jointly prescribed by the Secretary and the Commissioner of
Social Security filed with the Social Security Administration on or after January 1, 1957,
will be considered a claim for death benefits, and to have been received in the
Department of Veterans Affairs as of the date of receipt in Social Security Administration.
The receipt of such an application (or copy thereof) by the Department of Veterans
Affairs will not preclude a request for any necessary evidence.
[26 FR 1570, Feb. 24, 1961; 71 FR 44915, August 8, 2006]
(38 U.S.C. 5105)
§ 3.154 Injury due to hospital treatment, etc.
VA may accept as a claim for benefits under 38 U.S.C. 1151 and Sec. 3.361 any
communication in writing indicating an intent to file a claim for disability
compensation or dependency and indemnity compensation under the laws governing
entitlement to veterans' benefits for disability or death due to VA hospital care, medical
or surgical treatment, examination, training and rehabilitation services, or
compensated work therapy program, whether such communication is contained in a
formal claim for pension, compensation, or dependency and indemnity compensation or
in any other document.
[27 FR 11887, Dec. 1, 1962; 69 FR 46426]
(38 U.S.C. 1151)
CROSS REFERENCES: Effective dates. See Sec. 3.400(i). Disability
hospitalization, etc. See Sec. Sec. 3.358, 3.361 and 3.800
xlv
or death due to
§ 3.155 Informal claims.
Discussion and Analysis in the Veterans Benefits Manual
(a) Any communication or action, indicating an intent to apply for one or more benefits
under the laws administered by the Department of Veterans Affairs, from a claimant, his
or her duly authorized representative, a Member of Congress, or some person acting as
next friend of a claimant who is not sui juris may be considered an informal claim. Such
informal claim must identify the benefit sought. Upon receipt of an informal claim, if a
formal claim has not been filed, an application form will be forwarded to the claimant for
execution. If received within 1 year from the date it was sent to the claimant, it will be
considered filed as of the date of receipt of the informal claim.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) A communication received from a service organization, an attorney, or agent may not
be accepted as an informal claim if a power of attorney was not executed at the time the
communication was written.
(c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an
informal request for increase or reopening will be accepted as a claim.
[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]
38 U.S.C. 501(a).
CROSS REFERENCES: State Department as agent of VA. See § 3.108. Report of
examination or hospitalization -- as claim for increase or to reopen. See § 3.157.
xlvi
§ 3.156 New and material evidence.
Discussion and Analysis in the Veterans Benefits Manual
(a) A claimant may reopen a finally adjudicated claim by submitting new and material
evidence. New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself or when
considered with previous evidence of record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be neither cumulative nor
redundant of the evidence of record at the time of the last prior final denial of the claim
sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
(Authority: 38 U.S.C. 501, 5103A(f), 5108)
(b) New and material evidence received prior to the expiration of the appeal period, or
prior to the appellate decision if a timely appeal has been filed (including evidence
received prior to an appellate decision and referred to the agency of original jurisdiction
by the Board of Veterans Appeals without consideration in that decision in accordance
with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been
filed in connection with the claim which was pending at the beginning of the appeal
period.
(Authority: 38 U.S.C. 501)
(c) Where the new and material evidence consists of a supplemental report from the
service department, received before or after the decision has become final, the former
decision will be reconsidered by the adjudicating agency of original jurisdiction. This
comprehends official service department records which presumably have been misplaced
and have now been located and forwarded to the Department of Veterans Affairs. Also
included are corrections by the service department of former errors of commission or
omission in the preparation of the prior report or reports and identified as such. The
retroactive evaluation of disability resulting from disease or injury subsequently service
connected on the basis of the new evidence from the service department must be
supported adequately by medical evidence. Where such records clearly support the
assignment of a specific rating over a part or the entire period of time involved, a
retroactive evaluation will be assigned accordingly except as it may be affected by the
filing date of the original claim.
[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275,
Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45620, 45630, Aug. 29, 2001]
38 U.S.C. 501(a)
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[EFFECTIVE DATE NOTE: 66 FR 45620, 45630, Aug. 29, 2001, revised paragraph (a),
effective Aug. 29, 2001.]
CROSS REFERENCES: Effective dates -- general. See § 3.400. Correction of military
records. See § 3.400(g).
§ 3.157 Report of examination or hospitalization as claim for increase or to
reopen.
xlvii
Discussion and Analysis in the Veterans Benefits Manual
(a) General. Effective date of pension or compensation benefits, if otherwise in order,
will be the date of receipt of a claim or the date when entitlement arose, whichever is the
later. A report of examination or hospitalization which meets the requirements of this
section will be accepted as an informal claim for benefits under an existing law or for
benefits under a liberalizing law or Department of Veterans Affairs issue, if the report
relates to a disability which may establish entitlement. Acceptance of a report of
examination or treatment as a claim for increase or to reopen is subject to the
requirements of § 3.114 with respect to action on Department of Veterans Affairs
initiative or at the request of the claimant and the payment of retroactive benefits from
the date of the report or for a period of 1 year prior to the date of receipt of the report.
(Authority: 38 U.S.C. 5110(a))
(b) Claim. Once a formal claim for pension or compensation has been allowed or a
formal claim for compensation disallowed for the reason that the service-connected
disability is not compensable in degree, receipt of one of the following will be accepted
as an informal claim for increased benefits or an informal claim to reopen. In addition,
receipt of one of the following will be accepted as an informal claim in the case of a
retired member of a uniformed service whose formal claim for pension or compensation
has been disallowed because of receipt of retirement pay. The evidence listed will also be
accepted as an informal claim for pension previously denied for the reason the disability
was not permanently and totally disabling.
(1) Report of examination or hospitalization by Department of Veterans Affairs or
uniformed services. The date of outpatient or hospital examination or date of admission
to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.
The date of a uniformed service examination which is the basis for granting severance
pay to a former member of the Armed Forces on the temporary disability retired list will
be accepted as the date of receipt of claim. The date of admission to a non-VA hospital
where a veteran was maintained at VA expense will be accepted as the date of receipt of
a claim, if VA maintenance was previously authorized; but if VA maintenance was
authorized subsequent to admission, the date VA received notice of admission will be
accepted. The provisions of this paragraph apply only when such reports relate to
examination or treatment of a disability for which service-connection has previously been
established or when a claim specifying the benefit sought is received within one year
from the date of such examination, treatment or hospital admission.
(Authority: 38 U.S.C. 501)
(2) Evidence from a private physician or layman. The date of receipt of such evidence
will be accepted when the evidence furnished by or in behalf of the claimant is within the
competence of the physician or lay person and shows the reasonable probability of
entitlement to benefits.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) State and other institutions. When submitted by or on behalf of the veteran and
entitlement is shown, date of receipt by the Department of Veterans Affairs of
examination reports, clinical records, and transcripts of records will be accepted as the
date of receipt of a claim if received from State, county, municipal, recognized private
institutions, or other Government hospitals (except those described in paragraph (b)(1) of
this section). These records must be authenticated by an appropriate official of the
institution. Benefits will be granted if the records are adequate for rating purposes;
otherwise findings will be verified by official examination. Reports received from private
institutions not listed by the American Hospital Association must be certified by the
Chief Medical Officer of the Department of Veterans Affairs or physician designee.
[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept.
15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24,
1995]
38 U.S.C. 501(a).
xlviii
§ 3.158 Abandoned claims.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. Except as provided in § 3.652 of this part, where evidence requested in
connection with an original claim, a claim for increase or to reopen or for the purpose of
determining continued entitlement is not furnished within 1 year after the date of request,
the claim will be considered abandoned. After the expiration of 1 year, further action will
not be taken unless a new claim is received. Should the right to benefits be finally
established, pension, compensation, dependency and indemnity compensation, or
monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence
shall commence not earlier than the date of filing the new claim.
(Authority: 38 U.S.C. 501)
(b) Department of Veterans Affairs examinations. Where the veteran fails without
adequate reason to respond to an order to report for Department of Veterans Affairs
examination within 1 year from the date of request and payments have been discontinued,
the claim for such benefits will be considered abandoned.
(c) Disappearance. Where payments of pension, compensation, dependency and
indemnity compensation, or monetary allowance under the provisions of 38 U.S.C.
chapter 18 have not been made or have been discontinued because a payee's present
whereabouts is unknown, payments will be resumed effective the day following the date
of last payment if entitlement is otherwise established, upon receipt of a valid current
address.
[27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063,
Nov. 9, 1987; 62 FR 51274, 51278, Sept. 30, 1997; 67 FR 49585, 49586, July 31, 2002]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, amended paragraphs (a)
and (c), effective July 31, 2002.]
CROSS-REFERENCES: Periodic certification of continued eligibility. See § 3.652.
Failure to report for VA examination. See § 3.655. Disappearance of veteran. See §
3.656.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
xlix
§ 3.159 Department of Veterans Affairs assistance in developing claims.
Discussion and Analysis in the Veterans Benefits Manual
(a) Definitions. For purposes of this section, the following definitions apply:
(1) Competent medical evidence means evidence provided by a person who is qualified
through education, training, or experience to offer medical diagnoses, statements, or
opinions. Competent medical evidence may also mean statements conveying sound
medical principles found in medical treatises. It would also include statements contained
in authoritative writings such as medical and scientific articles and research reports or
analyses.
(2) Competent lay evidence means any evidence not requiring that the proponent have
specialized education, training, or experience. Lay evidence is competent if it is provided
by a person who has knowledge of facts or circumstances and conveys matters that can
be observed and described by a lay person.
(3) Substantially complete application means an application containing the claimant's
name; his or her relationship to the veteran, if applicable; sufficient service information
for VA to verify the claimed service, if applicable; the benefit claimed and any medical
condition(s) on which it is based; the claimant's signature; and in claims for
nonservice-connected disability or death pension and parents' dependency and indemnity
compensation, a statement of income.
(4) For purposes of paragraph (c)(4)(i) of this section, event means one or more incidents
associated with places, types, and circumstances of service giving rise to disability.
(5) Information means non-evidentiary facts, such as the claimant's Social Security
number or address; the name and military unit of a person who served with the veteran;
or the name and address of a medical care provider who may have evidence pertinent to
the claim.
(b) VA's duty to notify claimants of necessary information or evidence. (1) When VA
receives a complete or substantially complete application for benefits, it will notify the
claimant of any information and medical or lay evidence that is necessary to substantiate
the claim. VA will inform the claimant which information and evidence, if any, that the
claimant is to provide to VA and which information and evidence, if any, that VA will
attempt to obtain on behalf of the claimant. VA will also request that the claimant provide
any evidence in the claimant's possession that pertains to the claim. If VA does not
receive the necessary information and evidence requested from the claimant within one
year of the date of the notice, VA cannot pay or provide any benefits based on that
application. If the claimant has not responded to the request within 30 days, VA may
decide the claim prior to the expiration of the one-year period based on all the
information and evidence contained in the file, including information and evidence it has
obtained on behalf of the claimant and any VA medical examinations or medical opinions.
If VA does so, however, and the claimant subsequently provides the information and
evidence within one year of the date of the request, VA must readjudicate the claim.
(Authority: 38 U.S.C. 5103)
(2) If VA receives an incomplete application for benefits, it will notify the claimant of the
information necessary to complete the application and will defer assistance until the
claimant submits this information.
(Authority: 38 U.S.C. 5102(b), 5103A(3))
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(c) VA's duty to assist claimants in obtaining evidence. Upon receipt of a substantially
complete application for benefits, VA will make reasonable efforts to help a claimant
obtain evidence necessary to substantiate the claim. In addition, VA will give the
assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to
reopen a finally decided claim. VA will not pay any fees charged by a custodian to
provide records requested.
(1) Obtaining records not in the custody of a Federal department or agency. VA will
make reasonable efforts to obtain relevant records not in the custody of a Federal
department or agency, to include records from State or local governments, private
medical care providers, current or former employers, and other non-Federal governmental
sources. Such reasonable efforts will generally consist of an initial request for the records
and, if the records are not received, at least one follow-up request. A follow-up request is
not required if a response to the initial request indicates that the records sought do not
exist or that a follow-up request for the records would be futile. If VA receives
information showing that subsequent requests to this or another custodian could result in
obtaining the records sought, then reasonable efforts will include an initial request and, if
the records are not received, at least one follow-up request to the new source or an
additional request to the original source.
(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant
records from non-Federal agency or department custodians. The claimant must provide
enough information to identify and locate the existing records, including the person,
company, agency, or other custodian holding the records; the approximate time frame
covered by the records; and, in the case of medical treatment records, the condition for
which treatment was provided.
(ii) If necessary, the claimant must authorize the release of existing records in a form
acceptable to the person, company, agency, or other custodian holding the records.
(Authority: 38 U.S.C. 5103A(b))
(2) Obtaining records in the custody of a Federal department or agency. VA will make as
many requests as are necessary to obtain relevant records from a Federal department or
agency. These records include but are not limited to military records, including service
medical records; medical and other records from VA medical facilities; records from
non-VA facilities providing examination or treatment at VA expense; and records from
other Federal agencies, such as the Social Security Administration. VA will end its
efforts to obtain records from a Federal department or agency only if VA concludes that
the records sought do not exist or that further efforts to obtain those records would be
futile. Cases in which VA may conclude that no further efforts are required include those
in which the Federal department or agency advises VA that the requested records do not
exist or the custodian does not have them.
(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant
records from Federal agency or department custodians. If requested by VA, the claimant
must provide enough information to identify and locate the existing records, including the
custodian or agency holding the records; the approximate time frame covered by the
records; and, in the case of medical treatment records, the condition for which treatment
was provided. In the case of records requested to corroborate a claimed stressful event in
service, the claimant must provide information sufficient for the records custodian to
conduct a search of the corroborative records.
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(ii) If necessary, the claimant must authorize the release of existing records in a form
acceptable to the custodian or agency holding the records.
(Authority: 38 U.S.C. 5103A(b))
(3) Obtaining records in compensation claims. In a claim for disability compensation, VA
will make efforts to obtain the claimant's service medical records, if relevant to the claim;
other relevant records pertaining to the claimant's active military, naval or air service that
are held or maintained by a governmental entity; VA medical records or records of
examination or treatment at non-VA facilities authorized by VA; and any other relevant
records held by any Federal department or agency. The claimant must provide enough
information to identify and locate the existing records including the custodian or agency
holding the records; the approximate time frame covered by the records; and, in the case
of medical treatment records, the condition for which treatment was provided.
(Authority: 38 U.S.C. 5103A(c))
(4) Providing medical examinations or obtaining medical opinions. (i) In a claim for
disability compensation, VA will provide a medical examination or obtain a medical
opinion based upon a review of the evidence of record if VA determines it is necessary to
decide the claim. A medical examination or medical opinion is necessary if the
information and evidence of record does not contain sufficient competent medical
evidence to decide the claim, but:
(A) Contains competent lay or medical evidence of a current diagnosed disability or
persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service, or has a
disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317
manifesting during an applicable presumptive period provided the claimant has the
required service or triggering event to qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated with the
established event, injury, or disease in service or with another service-connected
disability.
(ii) Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service
treatment for a condition, or other possible association with military service.
(iii) Paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new
and material evidence is presented or secured.
(Authority: 38 U.S.C. 5103A(d))
(d) Circumstances where VA will refrain from or discontinue providing assistance. VA
will refrain from providing assistance in obtaining evidence for a claim if the
substantially complete application for benefits indicates that there is no reasonable
possibility that any assistance VA would provide to the claimant would substantiate the
claim. VA will discontinue providing assistance in obtaining evidence for a claim if the
evidence obtained indicates that there is no reasonable possibility that further assistance
would substantiate the claim. Circumstances in which VA will refrain from or
discontinue providing assistance in obtaining evidence include, but are not limited to:
(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service,
lack of veteran status, or other lack of legal eligibility;
(2) Claims that are inherently incredible or clearly lack merit; and
(3) An application requesting a benefit to which the claimant is not entitled as a matter of
law.
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(Authority: 38 U.S.C. 5103A(a)(2))
(e) Duty to notify claimant of inability to obtain records. (1) If VA makes reasonable
efforts to obtain relevant non-Federal records but is unable to obtain them, or after
continued efforts to obtain Federal records concludes that it is reasonably certain they do
not exist or further efforts to obtain them would be futile, VA will provide the claimant
with oral or written notice of that fact. VA will make a record of any oral notice
conveyed to the claimant. For non-Federal records requests, VA may provide the notice
at the same time it makes its final attempt to obtain the relevant records. In either case,
the notice must contain the following information:
(i) The identity of the records VA was unable to obtain;
(ii) An explanation of the efforts VA made to obtain the records;
(iii) A description of any further action VA will take regarding the claim, including, but
not limited to, notice that VA will decide the claim based on the evidence of record
unless the claimant submits the records VA was unable to obtain; and
(iv) A notice that the claimant is ultimately responsible for providing the evidence.
(2) If VA becomes aware of the existence of relevant records before deciding the claim,
VA will notify the claimant of the records and request that the claimant provide a release
for the records. If the claimant does not provide any necessary release of the relevant
records that VA is unable to obtain, VA will request that the claimant obtain the records
and provide them to VA.
(Authority: 38 U.S.C. 5103A(b)(2))
(f) For the purpose of the notice requirements in paragraphs (b) and (e) of this section,
notice to the claimant means notice to the claimant or his or her fiduciary, if any, as well
as to his or her representative, if any.
(Authority: 38 U.S.C. 5102(b), 5103(a))
[55 FR 52273, Dec. 21, 1990; 66 FR 45620, 45630, Aug. 29, 2001]
[EFFECTIVE DATE NOTE: 66 FR 45620, 45630, Aug. 29, 2001, revised this section,
effective Nov. 9, 2000.]
l
§ 3.160 Status of claims.
Discussion and Analysis in the Veterans Benefits Manual
The following definitions are applicable to claims for pension, compensation, and
dependency and indemnity compensation.
(a) Informal claim. See § 3.155.
(b) Original claim. An initial formal application on a form prescribed by the Secretary.
(See §§ 3.151, 3.152).
(c) Pending claim. An application, formal or informal, which has not been finally
adjudicated.
(d) Finally adjudicated claim. An application, formal or informal, which has been
allowed or disallowed by the agency of original jurisdiction, the action having become
final by the expiration of 1 year after the date of notice of an award or disallowance, or
by denial on appellate review, whichever is the earlier. (See §§ 20.1103 and 20.1104 of
this chapter.)
(e) Reopened claim. Any application for a benefit received after final disallowance of an
earlier claim, or any application based on additional evidence or a request for a personal
hearing submitted more than 90 days following notification to the appellant of the
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
certification of an appeal and transfer of applicable records to the Board of Veterans
Appeals which was not considered by the Board in its decision and was referred to the
agency of original jurisdiction for consideration as provided in § 20.1304(b)(1) of this
chapter.
(Authority: 38 U.S.C. 501)
(f) Claim for increase. Any application for an increase in rate of a benefit being paid
under a current award, or for resumption of payments previously discontinued.
[27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148,
May 15, 1990; 58 FR 32445, June 10, 1993]
38 U.S.C. 501(a)
——————————
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EVIDENCE REQUIREMENTS
§ 3.200 Testimony certified or under oath.
§ 3.201 Exchange of evidence; Social Security and Department of Veterans Affairs.
§ 3.202 Evidence from foreign countries.
§ 3.203 Service records as evidence of service and character of discharge.
§ 3.204 Evidence of dependents and age.
§ 3.205 Marriage.
§ 3.206 Divorce.
§ 3.207 Void or annulled marriage.
§ 3.208 Claims based on attained age.
§ 3.209 Birth.
§ 3.210 Child's relationship.
§ 3.211 Death.
§ 3.212 Unexplained absence for 7 years.
§ 3.213 Change of status affecting entitlement.
§ 3.214 Court decisions; unremarried surviving spouses.
§ 3.215 Termination of marital relationship or conduct.
§ 3.216 Mandatory disclosure of social security numbers.
§ 3.217 Submission of statements or information affecting entitlement to benefits.
§ 3.200 Testimony certified or under oath.
(a) All oral testimony presented by claimants and witnesses on their behalf before any
rating or authorization body will be under oath or affirmation. (See § 3.103(c).)
(b) All written testimony submitted by the claimant or in his or her behalf for the purpose
of establishing a claim for service connection will be certified or under oath or
affirmation. This includes records, examination reports, and transcripts material to the
issue received by the Department of Veterans Affairs at the instance of the claimant or in
his or her behalf or requested by the Department of Veterans Affairs from State, county,
municipal, recognized private institutions, and contract hospitals.
[40 FR 36329, Aug. 20, 1975]
38 U.S.C. 501(a).
§ 3.201 Exchange of evidence; Social Security and Department of Veterans
Affairs.
(a) A claimant for dependency and indemnity compensation may elect to furnish to the
Department of Veterans Affairs in support of that claim copies of evidence which was
previously furnished to the Social Security Administration or to have the Department of
Veterans Affairs obtain such evidence from the Social Security Administration. For the
purpose of determining the earliest effective date for payment of dependency and
indemnity compensation, such evidence will be deemed to have been received by the
Department of Veterans Affairs on the date it was received by the Social Security
Administration.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) A copy or certification of evidence filed in the Department of Veterans Affairs in
support of a claim for dependency and indemnity compensation will be furnished the
Social Security Administration upon request from the agency.
[26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993]
(38 U.S.C. 501(a) and 5105)
CROSS REFERENCE: Claims filed with Social Security. See § 3.153.
§ 3.202 Evidence from foreign countries.
(a) Except as provided in paragraph (b) of this section, where an affidavit or other
document is required to be executed under oath before an official in a foreign country, the
signature of that official must be authenticated by a United States Consular Officer in that
jurisdiction or by the State Department. Where the United States has no consular
representative in a foreign country, such authentication may be made as follows:
(1) By a consular agent of a friendly government whereupon the signature and seal of the
official of the friendly government may be authenticated by the State Department; or
(2) By the nearest American consul who will attach a certificate showing the result of the
investigation concerning its authenticity.
(b) Authentication will not be required: (1) On documents approved by the Deputy
Minister of Veterans Affairs, Department of Veterans Affairs, Ottawa, Canada: or
(2) When it is indicated that the attesting officer is authorized to administer oaths for
general purposes and the document bears his or her signature and seal; or
(3) When the document is executed before a Department of Veterans Affairs employee
authorized to administer oaths; or
(4) When a copy of a public or church record from any foreign country purports to
establish birth, adoption, marriage, annulment, divorce, or death, provided it bears the
signature and seal of the custodian of such record and there is no conflicting evidence in
the file which would serve to create doubt as to the correctness of the record; or
(5) When a copy of the public or church record from one of the countries comprising the
United Kingdom, namely: England, Scotland, Wales, or Northern Ireland, purports to
establish birth, marriage, or death, provided it bears the signature or seal or stamp of the
custodian of such record and there is no evidence which would serve to create doubt as to
the correctness of the records; or
(6) When affidavits prepared in the Republic of the Philippines are certified by a
Department of Veterans Affairs representative located in the Philippines having authority
to administer oaths.
(c) Photocopies of original documents meeting the requirements of this section will be
accepted if they satisfy the requirements of § 3.204.
[26 FR 1571, Feb. 24, 1961, as amended at 40 FR 36329, Aug. 20, 1975; 52 FR 19348,
May 22, 1987; 59 FR 46338, Sept. 8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995]
(38 U.S.C. 501)
li
§ 3.203 Service records as evidence of service and character of discharge.
Discussion and Analysis in the Veterans Benefits Manual
(a) Evidence submitted by a claimant. For the purpose of establishing entitlement to
pension, compensation, dependency and indemnity compensation or burial benefits the
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Department of Veterans Affairs may accept evidence of service submitted by a claimant
(or sent directly to the Department of Veterans Affairs by the service department), such
as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original
Certificate of Discharge, without verification from the appropriate service department if
the evidence meets the following conditions:
(1) The evidence is a document issued by the service department. A copy of an original
document is acceptable if the copy was issued by the service department or if the copy
was issued by a public custodian of records who certifies that it is a true and exact copy
of the document in the custodian's custody or, if the copy was submitted by an accredited
agent, attorney or service organization representative who has successfully completed
VA-prescribed training on military records, and who certifies that it is a true and exact
copy of either an original document or of a copy issued by the service department or a
public custodian of records; and
(2) The document contains needed information as to length, time and character of service;
and
(3) In the opinion of the Department of Veterans Affairs the document is genuine and the
information contained in it is accurate.
(b) Additional requirements for pension claimants. In addition to meeting the
requirements of paragraph (a) of this section, a document submitted to establish a
creditable period of wartime service for pension entitlement may be accepted without
verification if the document (or other evidence of record) shows:
(1) Service of 4 months or more; or
(2) Discharge for disability incurred in line of duty; or
(3) Ninety days creditable service based on records from the service department such as
hospitalization for 90 days for a line of duty disability.
(c) Verification from the service department. When the claimant does not submit
evidence of service or the evidence submitted does not meet the requirements of
paragraph (a) of this section (and paragraph (b) of this section in pension claims), the
Department of Veterans Affairs shall request verification of service from the service
department. However, payment of nonservice-connected burial benefits may be
authorized, if otherwise in order, based upon evidence of service which VA relied upon
to authorize payment of compensation or pension during the veteran's lifetime, provided
that there is no evidence which would serve to create doubt as to the correctness of that
service evidence. If it appears that a length of service requirement may not be met (e.g.,
the 90 days wartime service requirement to receive pension under 38 U.S.C. 1521(j)), the
Department of Veterans Affairs shall request a complete statement of service to
determine if there are any periods of active service that are required to be excluded under
§ 3.15.
[45 FR 72654, Nov. 3, 1980, as amended at 46 FR 51246, Oct. 19, 1981; 58 FR 37857,
July 14, 1993, as corrected at 58 FR 42623, Aug. 10, 1993; 66 FR 19857, 19858, Apr. 18,
2001]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 66 FR 19857, 19858, Apr. 18, 2001, amended paragraph
(a)(1), effective Apr. 18, 2001.]
§ 3.204 Evidence of dependents and age.
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lii
Discussion and Analysis in the Veterans Benefits Manual
(a)(1) Except as provided in paragraph (a)(2) of this section, VA will accept, for the
purpose of determining entitlement to benefits under laws administered by VA, the
statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or
death of a dependent, provided that the statement contains: the date (month and year) and
place of the event; the full name and relationship of the other person to the claimant; and,
where the claimant's dependent child does not reside with the claimant, the name and
address of the person who has custody of the child. In addition, a claimant must provide
the social security number of any dependent on whose behalf he or she is seeking benefits
(see § 3.216).
(2) VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the
claimant does not reside within a state; the claimant's statement on its face raises a
question of its validity; the claimant's statement conflicts with other evidence of record;
or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or
misrepresentation of the relationship in question.
(Authority: 38 U.S.C. 5124)
(b) Marriage or birth. The classes of evidence to be furnished for the purpose of
establishing marriage, dissolution of marriage, age, relationship, or death, if required
under the provisions of paragraph (a)(2), are indicated in §§ 3.205 through 3.211 in the
order of preference. Failure to furnish the higher class, however, does not preclude the
acceptance of a lower class if the evidence furnished is sufficient to prove the point
involved.
(c) Acceptability of photocopies. Photocopies of documents necessary to establish birth,
death, marriage or relationship under the provisions of §§ 3.205 through 3.215 of this part
are acceptable as evidence if the Department of Veterans Affairs is satisfied that the
copies are genuine and free from alteration. Otherwise, VA may request a copy of the
document certified over the signature and official seal of the person having custody of
such record.
(The Office of Management and Budget has approved the information collection
requirements in this section under control number 2900-0624.)
[26 FR 1572, Feb. 24, 1961, as amended at 40 FR 53581, Nov. 19, 1975; 45 FR 72655,
Nov. 3, 1980; 52 FR 19348, May 22, 1987; 54 FR 5236, Feb. 2, 1989; 59 FR 46338, Sept.
8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995; 61 FR 56626, Nov. 4, 1996; 66 FR
56613, 56614, Nov. 9, 2001]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 66 FR 56613, 56614, Nov. 9, 2001, amended this section,
effective Dec. 10, 2001.]
liii
§ 3.205 Marriage.
Discussion and Analysis in the Veterans Benefits Manual
(a) Proof of marriage. Marriage is established by one of the following types of evidence:
(1) Copy or abstract of the public record of marriage, or a copy of the church record of
marriage, containing sufficient data to identify the parties, the date and place of marriage,
and the number of prior marriages if shown on the official record.
(2) Official report from service department as to marriage which occurred while the
veteran was in service.
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(3) The affidavit of the clergyman or magistrate who officiated.
(4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied
that it is genuine and free from alteration.
(5) The affidavits or certified statements of two or more eyewitnesses to the ceremony.
(6) In jurisdictions where marriages other than by ceremony are recognized the affidavits
or certified statements of one or both of the parties to the marriage, if living, setting forth
all of the facts and circumstances concerning the alleged marriage, such as the agreement
between the parties at the beginning of their cohabitation, the period of cohabitation,
places and dates of residences, and whether children were born as the result of the
relationship. This evidence should be supplemented by affidavits or certified statements
from two or more persons who know as the result of personal observation the reputed
relationship which existed between the parties to the alleged marriage including the
periods of cohabitation, places of residences, whether the parties held themselves out as
married, and whether they were generally accepted as such in the communities in which
they lived.
(7) Any other secondary evidence which reasonably supports a belief by the Adjudicating
activity that a valid marriage actually occurred.
(b) Valid marriage. In the absence of conflicting information, proof of marriage which
meets the requirements of paragraph (a) of this section together with the claimant's
certified statement concerning the date, place and circumstances of dissolution of any
prior marriage may be accepted as establishing a valid marriage, provided that such facts,
if they were to be corroborated by record evidence, would warrant acceptance of the
marriage as valid. Where necessary to a determination because of conflicting information
or protest by a party having an interest therein, proof of termination of a prior marriage
will be shown by proof of death, or a certified copy or a certified abstract of final decree
of divorce or annulment specifically reciting the effects of the decree.
(c) Marriages deemed valid. Where a surviving spouse has submitted proof of marriage in
accordance with paragraph (a) of this section and also meets the requirements of § 3.52,
the claimant's signed statement that he or she had no knowledge of an impediment to the
marriage to the veteran will be accepted, in the absence of information to the contrary, as
proof of that fact.
[26 FR 1572, Feb. 24, 1961, as amended at 27 FR 6281, July 3, 1962; 36 FR 20946, Nov.
2, 1971; 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 47 FR 28096, June 29,
1982; 52 FR 19349, May 22, 1987; 58 FR 37857, July 14, 1993; 59 FR 46338, Sept. 8,
1994, as confirmed at 60 FR 46533, Sept. 7, 1995; 62 FR 5528, 5529, Feb. 6, 1997]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 62 FR 5528, 5529, Feb. 6, 1997, substituted "married" for
"husband and wife" in paragraph (a)(6), effective Feb. 6, 1997.]
CROSS REFERENCES: Marriages deemed vaild. See § 3.52. Defintions; marriage. See
§ 3.1(j). Evidence of dependents and age. See § 3.204.
§ 3.206 Divorce.
The validity of a divorce decree regular on its face, will be questioned by the Department
of Veterans Affairs only when such validity is put in issue by a party thereto or a person
whose interest in a claim for Department of Veterans Affairs benefits would be affected
thereby. In cases where recognition of the decree is thus brought into question:
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Where the issue is whether the veteran is single or married (dissolution of a subsisting
marriage), there must be a bona fide domicile in addition to the standards of the granting
jurisdiction respecting validity of divorce;
(b) Where the issue is the validity of marriage to a veteran following a divorce, the matter
of recognition of the divorce by the Department of Veterans Affairs (including any
question of bona fide domicile) will be determined according to the laws of the
jurisdictions specified in § 3.1(j).
(c) Where a foreign divorce has been granted the residents of a State whose laws consider
such decrees to be valid, it will thereafter be considered as valid under the laws of the
jurisdictions specified in § 3.1(j) in the absence of a determination to the contrary by a
court of last resort in those jurisdictions.
[27 FR 6281, July 3, 1962, as amended at 35 FR 16831, Oct. 31, 1970; 40 FR 53581,
Nov. 19, 1975; 52 FR 19349, May 22, 1987]
38 U.S.C. 501(a).
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
liv
§ 3.207 Void or annulled marriage.
Discussion and Analysis in the Veterans Benefits Manual
Proof that a marriage was void or has been annulled should consist of:
(a) Void. A certified statement from the claimant setting forth the circumstances which
rendered the marriage void, together with such other evidence as may be required for a
determination.
(b) Annulled. A copy or abstract of the decree of annulment. A decree regular on its face
will be accepted unless there is reason to question the basic authority of the court to
render annulment decrees or there is evidence indicating that the annulment may have
been obtained through fraud by either party or by collusion.
[28 FR 2904, Mar. 3, 1963, as amended at 40 FR 53581, Nov. 19, 1975; 52 FR 19349,
May 22, 1987; 59 FR 46338, Sept. 8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995]
38 U.S.C. 501(a).
CROSS REFERENCES: Effective dates, void or annulled marriage. See § 3.400(u) and
(v). Evidence of dependents and age. See § 3.204.
§ 3.208 Claims based on attained age.
In claims for pension where the age of the veteran or surviving spouse is material, the
statements of age will be accepted where they are in agreement with other statements in
the record as to age. However, where there is a variance in such records, the youngest age
will be accepted subject to the submission of evidence as outlined in § 3.209.
[40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987]
38 U.S.C. 501(a).
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
§ 3.209 Birth.
Age or relationship is established by one of the following types of evidence. If the
evidence submitted for proof of age or relationship indicates a difference in the name of
the person as shown by other records, the discrepancy is to be reconciled by an affidavit
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or certified statement identifying the person having the changed name as the person
whose name appears in the evidence of age or relationship.
(a) A copy or abstract of the public record of birth. Such a record established more than 4
years after the birth will be accepted as proof of age or relationship if, it is not
inconsistent with material of record with the Department of Veterans Affairs, or if it
shows on its face that it is based upon evidence which would be acceptable under this
section.
(b) A copy of the church record of baptism. Such a record of baptism performed more
than 4 years after birth will not be accepted as proof of age or relationship unless it is
consistent with material of record with the Department of Veterans Affairs, which will
include at least one reference to age or relationship made at a time when such reference
was not essential to establishing entitlement to the benefit claimed.
(c) Official report from the service department as to birth which occurred while the
veteran was in service.
(d) Affidavit or a certified statement of the physician or midwife in attendance at birth.
(e) Copy of Bible or other family record certified to by a notary public or other officer
with authority to administer oaths, who should state in what year the Bible or other book
in which the record appears was printed, whether the record bears any erasures or other
marks of alteration, and whether from the appearance of the writing he or she believes the
entries to have been made at the time purported.
(f) Affidavits or certified statements of two or more persons, preferably disinterested,
who will state their ages, showing the name, date, and place of birth of the person whose
age or relationship is being established, and that to their own knowledge such person is
the child of such parents (naming the parents) and stating the source of their knowledge.
(g) Other evidence which is adequate to establish the facts in issue, including census
records, original baptismal records, hospital records, insurance policies, school,
employment, immigration, or naturalization records.
[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 40 FR 53581,
Nov. 19, 1975; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338,
Sept. 8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995]
(38 U.S.C. 501)
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
lv
§ 3.210 Child's relationship.
Discussion and Analysis in the Veterans Benefits Manual
(a) Legitimate child. Where it is necessary to determine the legitimacy of a child,
evidence will be required to establish the legality of the marriage of the mother of the
child to the veteran or to show that the child is otherwise legitimate by State laws
together with evidence of birth as outlined in § 3.209. Where the legitimacy of a child is
not a factor, evidence to establish legitimacy will not be required: Provided, That,
evidence is on file which meets the requirements of paragraph (b) of this section
sufficient to warrant recognition of the relationship of the child without regard to
legitimacy.
(b) Illegitimate child. As to the mother of an illegitimate child, proof of birth is all that is
required. As to the father, the sufficiency of evidence will be determined in accordance
with the facts in the individual case. Proof of such relationship will consist of:
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(1) An acknowledgment in writing signed by him; or
(2) Evidence that he has been identified as the child's father by a judicial decree ordering
him to contribute to the child's support or for other purposes; or
(3) Any other secondary evidence which reasonably supports a finding of relationship, as
determined by an official authorized to approve such findings, such as:
(i) A copy of the public record of birth or church record of baptism, showing that the
veteran was the informant and was named as parent of the child; or
(ii) Statements of persons who know that the veteran accepted the child as his; or
(iii) Information obtained from service department or public records, such as school or
welfare agencies, which shows that with his knowledge the veteran was named as the
father of the child.
(c) Adopted child. Except as provided in paragraph (c)(1) of this section evidence of
relationship will include a copy of the decree of adoption or a copy of the adoptive
placement agreement and such other evidence as may be necessary.
(1) In jurisdictions where petition must be made to the court for release of adoption
documents or information, or where release of such documents or information is
prohibited, the following may be accepted to establish the fact of adoption:
(i) As to a child adopted into the veteran's family, a copy of the child's revised birth
certificate.
(ii) As to a child adopted out of the veteran's family, a statement over the signature of the
judge or the clerk of the court setting forth the child's former name and the date of
adoption, or a certified statement by the veteran, the veteran's surviving spouse,
apportionee, or their fiduciaries setting forth the child's former name, date of birth, and
the date and fact of adoption together with evidence indicating that the child's original
public record of birth has been removed from such records. Where application is made
for an apportionment under § 3.458(d) on behalf of a child adopted out of the veteran's
family, the evidence must be sufficient to establish the veteran as the natural parent of the
child.
(2) As to a child adopted by the veteran's surviving spouse after the veteran's death, the
statement of the adoptive parent or custodian of the child will be accepted in absence of
information to the contrary, to show that the child was a member of the veteran's
household at the date of the veteran's death and that recurring contributions were not
being received for the child's maintenance sufficient to provide for the major portion of
the child's support, from any person other than the veteran or surviving spouse or from
any public or private welfare organization which furnished services or assistance to
children. (Pub. L. 86-195)
(d) Stepchild. Evidence of relationship of a stepchild will consist of proof of birth as
outlined in § 3.209, evidence of the marriage of the veteran to the natural parent of the
child, and evidence that the child is a member of the veteran's household or was a
member of the veteran's household at the date of the veteran's death.
[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 28 FR 2959, Mar.
26, 1963; 38 FR 871, Jan. 5, 1973; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22,
1987; 59 FR 46338, Sept. 8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995]
38 U.S.C. 501(a).
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
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§ 3.211 Death.
Death should be established by one of the following types of evidence:
(a)(1) A copy of the public record of the State or community where death occurred.
(2) A copy of a coroner's report of death or a verdict of a coroner's jury of the State or
community where death occurred, provided such report or verdict properly identified the
deceased.
(b) Where death occurs in a hospital or institution under the control of the United States
Government:
(1) A death certificate signed by a medical officer; or
(2) A clinical summary or other report showing fact and date of death signed by a
medical officer.
(c) An official report of death of a member of a uniformed service from the Secretary of
the department concerned where death occurs while deceased was on the retired list, in an
inactive duty status, or in the active service.
(d) Where death occurs abroad:
(1) A United States consular report of death bearing the signature and seal of the United
States consul; or
(2) A copy of the public record of death authenticated (see § 3.202(b)(4) for exception)
by the United States consul or other agency of the State Department; or
(3) An official report of death from the head of the department concerned, where the
deceased person was, at the time of death, a civilian employee of such department.
(e) If the foregoing evidence cannot be furnished, the reason must be stated. The fact of
death may then be established by the affidavits of persons who have personal knowledge
of the fact of death, have viewed the body of the deceased, know it to be the body of the
person whose death is being established, setting forth all the facts and circumstances
concerning the death, place, date, time, and cause thereof.
(f) If proof of death, as defined in paragraphs (a) through (e) of this section cannot be
furnished, a finding of fact of death, where death is otherwise shown by competent
evidence, may be made by an official authorized to approve such findings. Where it is
indicated that the veteran died under circumstances which precluded recovery or
identification of the body, the fact of death should be established by the best evidence,
which from the nature of the case must be supposed to exist.
(g) In the absence of evidence to the contrary, a finding of fact of death made by another
Federal agency will be accepted for the purposes of paragraph (f) of this section.
[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349,
May 22, 1987; 59 FR 46338, Sept. 8, 1994, as confirmed at 60 FR 46533, Sept. 7, 1995]
38 U.S.C. 501(a).
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
§ 3.212 Unexplained absence for 7 years.
(a) If satisfactory evidence is produced establishing the fact of the continued and
unexplained absence of any individual from his or her home and family for a period of 7
years or more and that a diligent search disclosed no evidence of his or her existence after
the date of disappearance, and if evidence as provided in § 3.211 cannot be furnished, the
death of such individual as of the expiration of such period may be considered as
sufficiently proved.
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(b) No State law providing for presumption of death will be applicable to claims for
benefits under laws administered by the Department of Veterans Affairs and the finding
of death will be final and conclusive except where suit is filed for insurance under 38
U.S.C. 1984.
(Authority: 38 U.S.C. 108)
(c) In the absence of evidence to the contrary, a finding of death made by another Federal
agency will be accepted if the finding meets the requirements of paragraph (a) of this
section.
[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349,
May 22, 1987]
(38 U.S.C. 108)
CROSS REFERENCE: Evidence of dependents and age. See § 3.204.
§ 3.213 Change of status affecting entitlement.
(a) General. For the purpose of establishing entitlement to a higher rate of pension,
compensation, or dependency and indemnity compensation based on the existence of a
dependent, VA will require evidence which satisfies the requirements of § 3.204. For the
purpose of reducing or discontinuing such benefits, a statement by a claimant or payee
setting forth the month and year of change of status which would result in a reduction or
discontinuance of benefits to that person will be accepted, in the absence of contradictory
information. This includes:
(1) Veteran. A statement by the veteran setting forth the month and year of death of a
spouse, child, or dependent parent.
(2) Surviving spouse. A statement by the surviving spouse or remarried surviving spouse
setting forth the month and year of remarriage and any change of name. (An award for a
child or children who are otherwise entitled may be made to commence the day following
the date of discontinuance of any payments to the surviving spouse.)
(3) Child. A statement by the veteran or surviving spouse (where an additional allowance
is being paid to the veteran or surviving spouse for a child), or fiduciary, setting forth the
month and year of the child's death, marriage, or discontinuance of school attendance. A
similar statement by a child who is receiving payments direct will be accepted to
establish the child's marriage or the discontinuance of school attendance. Where
appropriate, the month and year of discontinuance of school attendance will be required
in addition to the month and year of death or marriage of a child.
(Authority: 38 U.S.C. 501)
(4) Parent. A statement by a parent setting forth the month and year:
(i) Of marriage or remarriage;
(ii) When two parents or a parent and spouse ceased living together;
(iii) When two parents or a parent and spouse resumed living together following a period
of separation;
(iv) Of divorce or death of a spouse.
(b) Date not reported. If the month and year of the event is not reported, the award will be
reduced or discontinued, whichever is appropriate, effective date of last payment. The
payee will be requested to furnish within 60 days from the date of request a statement
setting forth the date of the event. Where payments are continued at a reduced rate, the
award will be discontinued effective date of last payment if the required statement is not
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received within the 60-day period. Payments on a discontinued award may be resumed, if
otherwise in order, from the date of discontinuance if the necessary information is
received within 1 year from the date of request; otherwise from the date of receipt of a
new claim.
(c) Contradictory information. Where there is reason to believe that the event reported
may have occurred at an earlier date, formal proof will be required.
[26 FR 1574, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 27 FR 11888,
Dec. 1, 1962; 52 FR 19349, May 22, 1987; 61 FR 56626, Nov. 4, 1996]
(38 U.S.C. 501)
[EFFECTIVE DATE NOTE: 61 FR 56626, Nov. 4, 1996, which amended the
introductory text of paragraph (a), became effective Nov. 4, 1996.]
CROSS REFERENCES: Abandoned claims. See § 3.158. Change in status of dependents.
See § 3.651. Material change in income, net worth or change in status. See § 3.660.
Evidence of dependents and age. See § 3.204.
§ 3.214 Court decisions; unremarried surviving spouses.
Effective July 15, 1958, a decision rendered by a Federal court in an action to which the
United States was a party holding that a surviving spouse of a veteran has not remarried
will be followed in determining eligibility for pension, compensation or dependency and
indemnity compensation.
[31 FR 2782, Feb. 16, 1966, as amended at 52 FR 19349, May 22, 1987; 62 FR 5528,
5529, Feb. 6, 1997]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 62 FR 5528, 5529, Feb. 6, 1997, substituted "surviving
spouses" for "widows" in the section heading, effective Feb. 6, 1997.]
CROSS REFERENCES: Abandoned claims. See § 3.158. Change in status of dependents.
See § 3.651. Dependency, income and estate. See § 3.660. Evidence of dependents and
age. See § 3.204.
§ 3.215 Termination of marital relationship or conduct.
On or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse
upon filing of an application and submission of satisfactory evidence that the surviving
spouse has ceased living with another person and holding himself or herself out openly to
the public as that person's spouse or that the surviving spouse has terminated a
relationship or conduct which had created an inference or presumption of remarriage or
related to open or notorious adulterous cohabitation or similar conduct, if the relationship
terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to,
the surviving spouse's certified statement of the fact.
[57 FR 10426, Mar. 26, 1992, as amended at 58 FR 32445, June 10, 1993]
38 U.S.C. 501(a).
§ 3.216 Mandatory disclosure of social security numbers.
Any person who applies for or receives any compensation or pension benefit as defined
in §§ 3.3, 3.4, or 3.5 of this part, a monetary allowance under 38 U.S.C. chapter 18, shall,
as a condition for receipt or continued receipt of benefits, furnish the Department of
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Veterans Affairs upon request with his or her social security number and the social
security number of any dependent or beneficiary on whose behalf, or based upon whom,
benefits are sought or received. However, no one shall be required to furnish a social
security number for any person to whom none has been assigned. Benefits will be
terminated if a beneficiary fails to furnish the Department of Veterans Affairs with his or
her social security number or the social security number of any dependent or beneficiary
on whose behalf, or based upon whom, benefits are sought or received, within 60 days
from the date the beneficiary is requested to furnish the social security number.
(Authority: (38 U.S.C. 1822, 5101(c))
(Approved by the Office of Management and Budget under control number 2900-0522)
[57 FR 8268, Mar. 9, 1992, as amended at 57 FR 27935, June 23, 1992; 65 FR 35280,
35282, June 2, 2000; 67 FR 49585, 49586, July 31, 2002]
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, amended this section,
effective July 31, 2002.]
§ 3.217 Submission of statements or information affecting entitlement to
benefits.
lvi
Discussion and Analysis in the Veterans Benefits Manual
(a) For purposes of this part, unless specifically provided otherwise, the submission of
information or a statement that affects entitlement to benefits by e-mail, facsimile, or
other written electronic means, will satisfy a requirement or authorization that the
statement or information be submitted in writing.
Note to paragraph (a): Section 3.217(a) merely concerns the submission of information or
a statement in writing. Other requirements specified in this part, such as a requirement to
use a specific form, to provide specific information, to provide a signature, or to provide
a certified statement, must still be met.
(b) For purposes of this part, unless specifically provided otherwise, VA may take action
affecting entitlement to benefits based on oral or written information or statements
provided to VA by a beneficiary or his or her fiduciary. However, VA may not take
action based on oral information or statements unless the VA employee receiving the
information meets the following conditions:
(1) During the conversation in which the information or statement is provided, the VA
employee:
(i) Identifies himself or herself as a VA employee who is authorized to receive the
information or statement (these are VA employees authorized to take actions under §§ 2.3
or 3.100 of this chapter);
(ii) Verifies the identity of the provider as either the beneficiary or his or her fiduciary by
obtaining specific information about the beneficiary that can be verified from the
beneficiary's VA records, such as Social Security number, date of birth, branch of
military service, dates of military service, or other information; and
(iii) Informs the provider that the information or statement will be used for the purpose of
calculating benefit amounts; and
(2) During or following the conversation in which the information or statement is
provided, the VA employee documents in the beneficiary's VA records the specific
information or statement provided, the date such information or statement was provided,
the identity of the provider, the steps taken to verify the identity of the provider as being
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either the beneficiary or his or her fiduciary, and that he or she informed the provider that
the information would be used for the purpose of calculating benefit amounts.
[66 FR 56613, 56614, Nov. 9, 2001]
(38 U.S.C. 501, 1115, 1506, 5104.)
[EFFECTIVE DATE NOTE: 66 FR 56613, 56614, Nov. 9, 2001, added this section,
effective Dec. 10, 2001.]
——————————
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DEPENDENCY, INCOME AND ESTATE
REGULATIONS APPLICABLE TO PROGRAMS IN EFFECT PRIOR TO
JANUARY 1, 1979
——————————
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
REGULATIONS APPLICABLE TO PROGRAMS IN EFFECT PRIOR TO
JANUARY 1, 1979
§ 3.250 Dependency of parents; compensation.
§ 3.251 Income of parents; dependency and indemnity compensation.
§ 3.252 Annual income; pension; Mexican border period and later war periods.
§§ 3.253 -- 3.255 [Reserved]
§ 3.256 Eligibility reporting requirements.
§ 3.257 Children; no surviving spouse entitled.
§§ 3.258 -- 3.259 [Reserved]
§ 3.260 Computation of income.
§ 3.261 Character of income; exclusions and estates.
§ 3.262 Evaluation of income.
§ 3.263 Corpus of estate; net worth.
§ 3.270 Applicability of various dependency, income and estate regulations.
§ 3.250 Dependency of parents; compensation.
(a) Income -- (1) Conclusive dependency. Dependency of a parent (other than one who is
residing in a foreign country) will be held to exist where the monthy income does not
exceed:
(i) $ 400 for a mother or father not living together;
(ii) $ 660 for a mother and father, or remarried parent and spouse, living together:
(iii) $ 185 for each additional "member of the family" as defined in paragraph (b)(2).
(Authority: 38 U.S.C. 102(a))
(2) Excess income. Where the income exceeds the monthly amounts stated in paragraph
(a)(1) of this section dependency will be determined on the facts in the individual case
under the principles outlined in paragraph (b) of this section. In such cases, dependency
will not be held to exist if it is reasonable that some part of the corpus of the claimant's
estate be consumed for his or her maintenance.
(3) Foreign residents. There is no conclusive presumption of dependency. Dependency
will be determined on the facts in the individual case under the principles outlined in this
section.
(b) Basic rule. Dependency will be held to exist if the father or mother of the veteran does
not have an income sufficient to provide reasonable maintenance for such father or
mother and members of his or her family under legal age and for dependent adult
members of the family if the dependency of such adult member results from mental or
physical incapacity.
(1) "Reasonable Maintenance" includes not only housing, food, clothing, and medical
care sufficient to sustain life, but such items beyond the bare necessities as well as other
requirements reasonably necessary to provide those conveniences and comforts of living
suitable to and consistent with the parents' reasonable mode of life.
(2) "Member of the family" means a person (other than spouse) including a relative in the
ascending as well as descending class, whom the father or mother is under moral or legal
obligation to support. In determining whether other members of the family under legal
age are factors in necessary expenses of the mother or father, consideration will be given
to any income from business or property (including trusts) actually available, directly or
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indirectly, to the mother or father for the support of the minor but not to the corpus of the
estate or the income of the minor which is not so available.
(c) Inception of dependency. The fact that the veteran has made habitual contributions to
the father or mother, or both, is not conclusive evidence that dependency existed but will
be considered in connection with all other evidence. In death claims, it is not material
whether dependency arose prior or subsequent to the veteran's death. (See § 3.1000(d)(3)
as to accrued.)
(Authority: 38 U.S.C. 102(a))
(d) Remarriage. Dependency will not be denied solely because of remarriage (38 U.S.C.
102(b)(1)). Compensation may be continued if the parent submits evidence to show that
dependency exists, considering the combined income and expenses of the parent and
spouse.
[28 FR 29, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 49 FR 47004, Nov.
30, 1984; 61 FR 20726, 20727, May 8, 1996]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, which substituted "(38
U.S.C. 102(b)(1))" for "(38 U.S.C. 102(a)(2))" in paragraph (d), became effective May 8,
1996.]
lvii
§ 3.251 Income of parents; dependency and indemnity compensation.
Discussion and Analysis in the Veterans Benefits Manual
(a) Annual income limitations and rates. (1) Dependency and indemnity compensation is
not payable to a parent or parents whose annual income exceeds the limitations set forth
in 38 U.S.C. 1315 (b), (c), or (d).
(2) Where there is only one parent, and the parent has remarried and is living with his or
her spouse, dependency and indemnity compensation will be paid under either the
formula in 38 U.S.C. 1315(b)(1) or the formula in 38 U.S.C. 1315(d), whichever will
provide the greater monthly rate of dependency and indemnity compensation. The total
combined annual income of the parent and spouse will be counted.
(Authority: 38 U.S.C. 1315)
(3) Where the claim is based on service in the Commonwealth Army of the Philippines,
or as a guerrilla or as a Philippine Scout under section 14, Pub. L. 190, 79th Congress, the
income limitation will be at a rate of $ 0.50 for each dollar. See § 3.100(b).
(Authority: 38 U.S.C. 107)
(4) If the remarriage of a parent has been terminated, or the parent is separated from his
or her spouse, the rate of dependency and indemnity compensation for the parent will be
that which would be payable if there were one parent alone or two parents not living
together, whichever is applicable.
(5) Where there are two parents living and only one parent has filed claim, the rate of
dependency and indemnity compensation will be that which would be payable if both
parents had filed claim.
(b) Basic rule. Payments of any kind or from any source will be counted as income unless
specifically excluded. Income will be counted for the calendar year in which it is received
and total income for the full calendar year will be considered except as provided in §
3.260.
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[28 FR 29, Jan. 1, 1963, as amended at 31 FR 14455, Nov. 10, 1966; 40 FR 16065, Apr.
9, 1975; 41 FR 15411, Apr. 13, 1976; 60 FR 18355, Apr. 11, 1995]
38 U.S.C. 501(a).
§ 3.252 Annual income; pension; Mexican border period and later war periods.
(a) Annual income limitations; old-law pension. Where the right to old-law pension is
payable under section 306(b) of Pub. L. 95-588 (92 Stat. 2497), pension is not payable if
the pensioner's annual income exceeds the income limitations prescribed by § 3.26(c).
(b) Annual income and net worth limitations; Pub. L. 86-211. Pension is not payable to a
veteran, surviving spouse or child whose annual income exceeds the limitations set forth
in 38 U.S.C. 1521, 1541 or 1542; or to a veteran, surviving spouse or child if it is
reasonable that some part of the claimant's estate be consumed for his or her maintenance.
Where a veteran and spouse are living together, the separate income of the spouse will be
considered as the veteran's income as provided in § 3.262(b).
(Authority: 38 U.S.C. 1543)
(c) Basic rule. Payments of any kind or from any source will be counted as income unless
specifically excluded. Income will be counted for the calendar year in which it is received
and total income for the full calendar year will be considered except as provided in §
3.260.
(d) Veteran with a spouse. For the purpose of determining eligibility under paragraph (b)
of this section the pension rates provided by 38 U.S.C. 1521(c) may be authorized for a
married veteran if he or she is living with or, if estranged, is reasonably contributing to
the support of his or her spouse. The determination of "reasonable" contribution will be
based on all the circumstances in the case, considering the income and estate of the
veteran and the separate income and estate of the spouse. Apportionment of the veteran's
pension under § 3.451 meets the requirement of reasonable contribution.
(e) Surviving spouse with a child -- (1) Child. The term "child" means a child as defined
in § 3.57. Where a veteran's child is born after the veteran dies, the surviving spouse will
not be considered a surviving spouse with a child prior to the child's date of birth.
(2) Veteran's child not in surviving spouse's custody. Where the veteran was survived by
a surviving spouse and by a child, the income increments for a surviving spouse and child
apply even though the child is not the child of the surviving spouse and not in his or her
custody.
(3) Income of child. The separate income received by a child or children, regardless of
custody, will not be considered in computing the surviving spouse's income. Where the
separate income of the child is turned over to the surviving spouse, only so much of the
money as is left after deducting any expenses for maintenance of the child will be
considered the surviving spouse's income.
(4) Alternative rate. Whenever the monthly pension rate payable to the surviving spouse
under the formula in 38 U.S.C. 1541(c) is less than the rate payable for one child under
section 1542 if the surviving spouse were not entitled, the surviving spouse will be paid
the child's rate.
(f) Income over maximum; reduced aid and attendance allowance. Beginning January 1,
1977, veterans in need of regular aid and attendance who are not receiving pension
because their income exceeds the applicable statutory limitation may be eligible for a
reduced aid and attendance allowance. The amount payable is the regular aid and
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attendance allowance authorized by 38 U.S.C. 1521(d)(1) reduced by 16.6 percent for
each $ 100, or portion thereof, by which the veteran's annual income exceeds the
applicable maximum income limitation. The reduced aid and attendance allowance is
payable when:
(1) A veteran in need of regular aid and attendance is denied pension under 38 U.S.C.
1521 solely because the veteran's annual income exceeds the applicable maximum
income limitation in 38 U.S.C. 1521 (b)(3) and (c)(3); or
(2) Pension payable under 38 U.S.C. 1521 to a veteran in need of regular aid and
attendance is discontinued solely because the veteran's annual income exceeds the
applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) or (c)(3); and
(3) The veteran's annual income exceeds the applicable maximum income limitation in
38 U.S.C. 1521 (b)(3) or (c)(3) by an amount not greater than the amount specified in 38
U.S.C. 1521 (d)(2).
[28 FR 30, Jan. 1, 1963, as amended at 40 FR 16065, April 9, 1975; 41 FR 15411, April
13, 1976; 41 FR 56803, Dec. 30, 1976; 44 FR 45935, Aug. 6, 1979; 61 FR 20726, 20727,
May 8, 1996; 62 FR 5528, 5529, Feb. 6, 1997]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 61 FR 20726, 20727, May 8, 1996, substituted "§ 3.26(c)"
for "§ 3.26(b)" in paragraph (a), effective May 8, 1996; 62 FR 5528, 5529, Feb. 6, 1997,
substituted "surviving spouse" for "widow or widower" in paragraph (b), and revised
paragraph (e), effective Feb. 6, 1997.]
CROSS REFERENCES: Basic pension determinations. See § 3.314. Determination of
permanent need for regular aid and attendance and "permanently bedridden". See §
3.352.
§§ 3.253 -- 3.255 [Reserved]
lviii
§ 3.256 Eligibility reporting requirements.
Discussion and Analysis in the Veterans Benefits Manual
(a) Obligation to report changes in factors affecting entitlement. Any individual who has
applied for or receives pension or parents' dependency and indemnity compensation must
promptly notify the Secretary of any change affecting entitlement in any of the following:
(1) Income;
(2) Net worth or corpus of estate;
(3) Marital status;
(4) Nursing home patient status;
(5) School enrollment status of a child 18 years of age or older; or
(6) Any other factor that affects entitlement to benefits under the provisions of this Part.
(b) Eligibility verification reports. (1) For purposes of this section the term eligibility
verification report means a form prescribed by the Secretary that is used to request
income, net worth (if applicable), dependency status, and any other information necessary
to determine or verify entitlement to pension or parents' dependency and indemnity
compensation.
(2) VA will not require old law or section 306 pensioners to submit eligibility verification
reports unless the Secretary determines that doing so is necessary to preserve program
integrity.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) The Secretary shall require an eligibility verification report from individuals receiving
parents' dependency and indemnity compensation under the following circumstances:
(i) If the Social Security Administration has not verified the beneficiary's Social Security
number and, if the beneficiary is married, his or her spouse's Social Security number.
(ii) If there is reason to believe that the beneficiary or, if the spouse's income could affect
entitlement, his or her spouse may have received income other than Social Security
during the current or previous calendar year; or
(iii) If the Secretary determines that an eligibility verification report is necessary to
preserve program integrity.
(4) An individual who applies for or receives pension or parents' dependency and
indemnity compensation as defined in §§ 3.3 or 3.5 of this part shall, as a condition of
receipt or continued receipt of benefits, furnish the Department of Veterans Affairs an
eligibility verification report upon request.
(c) If VA requests that a claimant or beneficiary submit an eligibility verification report
but he or she fails to do so within 60 days of the date of the VA request, the Secretary
shall suspend the award or disallow the claim.
(The Office of Management and Budget has approved the information collection
requirements in this section under control numbers 2900-0101 and 2900-0624.)
[36 FR 8445, May 6, 1971; 60 FR 51921, 51922, Oct. 4, 1995; 63 FR 53593, 53595, Oct.
6, 1998, as confirmed and amended at 65 FR 16827, Mar. 30, 2000; 66 FR 56613, 56614,
Nov. 9, 2001]
(Sec. 306(a)(2) and (b)(3), Pub. L. 95-588, 92 Stat. 2508-2509; 38 U.S.C. 1315(e))
[EFFECTIVE DATE NOTE: 66 FR 56613, 56614, Nov. 9, 2001, amended this section,
effective Dec. 10, 2001.]
§ 3.257 Children; no surviving spouse entitled.
Where pension is not payable to a surviving spouse because his or her annual income
exceeds the statutory limitation or because of his or her net worth, payments will be made
to or for the child or children as if there were no surviving spouse.
[40 FR 16066, April 9, 1975; 62 FR 5528, 5529, Feb. 6, 1997]
38 U.S.C. 501(a).
[EFFECTIVE DATE NOTE: 62 FR 5528, 5529, Feb. 6, 1997, revised this section,
effective Feb. 6, 1997.]
§§ 3.258 -- 3.259 [Reserved]
§ 3.260 Computation of income.
For entitlement to pension or dependency and indemnity compensation, income will be
counted for the calendar year in which it is received.
(a) Installments. Income will be determined by the total amount received or anticipated
during the calendar year.
(b) Deferred determinations. Where there is doubt as to the amount of the anticipated
income, pension or dependency and indemnity compensation will be allowed at the
lowest appropriate rate or will be withheld, as may be in order, until the end of the
calendar year when the total income received during the year may be determined.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(c) Proportionate income limitations; excess income. A proportionate income limitation
will be established under the conditions set forth in paragraph (d) of this section except
where application of a proportionate income limitation would result in payment of a
lower rate than would be payable on the basis of income for the full calendar year.
(d) Proportionate income limitations; computation. Income limitations will be computed
proportionately for the purpose of determining initial entitlement, or for resuming
payments on an award which was discontinued for a reason other than excess income or a
change in marital or dependency status. A proportionate income limitation will be
established for the period from the date of entitlement to the end of that calendar year.
The total amount of income received by the claimant during that period will govern the
payment of benefits. Income received prior to the date of entitlement will be disregarded.
(e) Proportionate income limitations; spouse. In determining whether proportionate
computation is applicable to a claim under Pub. L. 86-211 (73 Stat. 432), the total income
for the calendar year of entitlement of both veteran and that of the spouse available for
use of the veteran will be considered. If a proportionate income limitation is then
applicable, it will be applied to both the veteran's and the spouse's income. The spouse's
income will not be included, however, where his or her total income for the calendar year
does not exceed $ 1,200.
(f) Rate changes. In years after that for which entitlement to pension or dependency and
indemnity compensation has been established or reestablished as provided in paragraph
(d) of this section, total income for the calendar year will govern the payment of benefits.
Where there is a change in the conditions of entitlement because of a change in marital or
dependency status, entitlement for each period will be determined separately. For the
period when the claimant was married or had a dependent, the rate payable will be
determined under the annual income limitation or increment applicable to a claimant who
is married or has a dependent. For the period when the claimant was unmarried or
without a dependent, the rate payable will be determined under the annual income
limitation or increment applicable to a claimant who is not married or has no dependent.
Since these determinations will be based on total income for the calendar year, it is not
material whether such income was received before or after the change of status.
(g) Fractions of dollars. In computing a claimant's annual income a fraction of a dollar
will be disregarded for the purpose of determining entitlement to monthly payments of
pension and dependency and indemnity compensation.
[28 FR 30, Jan. 1, 1963, as amended at 29 FR 2944, Mar. 4, 1964; 37 FR 6677, Apr. 1,
1972; 40 FR 16066, Apr. 9, 1975]
(38 U.S.C. 1315(g)(2); 1503(b))
lix
§ 3.261 Character of income; exclusions and estates.
Discussion and Analysis in the Veterans Benefits Manual
The following factors will be considered in determining whether a claimant meets the
requirements of §§ 3.250, 3.251 and 3.252 with reference to dependency, income
limitations and corpus of estate:
[PUBLISHER'S NOTE: As printed in the GPO edition of the CFR, some of the following
tables in this section are too wide to fit on an 80-character screen. Therefore, such tables
have been reformatted for the screen.]
(a) Income.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Income
Dependency and
indemnity
Dependency
compensation
(parents)
(parents)
(1) Total income from employment, business,
investments, or rents.
(2) Income of spouse.
Included
......do
......do
(3) Earnings of members of family under legal ......do
age.
(4) Earned income of child-claimant.
--------
(5) Gifts, including contributions from adult
members of family:
Property.
......do
Money.
......do
(8) Charitable donations.
Included
...... do
......do
......do
(9) Family allowance authorized by service
personnel.
Excluded
--------
(6) Value of maintenance by relative, friend, Excluded
or organization.
(7) Rental value of property owned by and
resided in by claimant.
Included
Excluded
......do
......do
Included
Included
(10) Reasonable value of allowances to person ......do
in service in addition to base pay.
......do
(11) Mustering-out pay.
Excluded
(12) Six-months' death gratuity.
......do
(13) Bonus or similar cash gratuity paid by
any State based on service in Armed Forces
of United States.
Excluded
......do
Excluded
Excluded
(14) Retired Serviceman's Family Protection
Plan; Survivor Benefit Plan (10 U.S.C.
ch. 73):
Retired Serviceman's Family Protection
Plan (Subch. I):
Annuities.
......do
......do
Refund (10 U.S.C. 1446).
Included
Included
Survivor Benefit Plan (Subch. II) (Pub.
......do
......do
L. 92-425; 86 Stat. 706).
Annuity under § 653, Pub. L. 100-456.
Included
Included
(15) Retirement pay received direct from
service department.
(16) Retirement benefits; general.
Included
......do
......do
Included
......do
......do
(17) Social security benefits:
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Old age and survivors', and disability
Included
insurance.
Charitable programs.
Excluded
Lump-sum death payments.
Included
Supplemental security income.
Excluded
(18) Railroad Retirement benefits.
(19) Retirement pay waived under Federal
statute.
Included
Excluded
......do
Excluded
......do
Excluded
Included
Excluded
(20) Department of Veterans Affairs payments:
Pension.
Excluded
Excluded
Compensation and dependency and indemnity ......do
......do
compensation.
World War I adjusted compensation.
......do
Included
U.S. Government life insurance or national Excluded
Excluded
service life insurance for disability or
death, maturity of endowment policies,
and dividends, including special and
termination dividends.
Servicemembers' group life insurance.
......do
......do
Veterans' group life insurance.
......do
......do
Servicemembers' indemnity.
......do
......do
Subsistence allowance (38 U.S.C. ch. 31). Included
Included
Veterans educational assistance in excess ......do
......do
of amounts expended for training (38
U.S.C. ch. 34).
Educational assistance (38 U.S.C. ch. 35). --------------Special allowance under 38 U.S.C. 1312(a). Excluded
Included
Statutory burial allowance.
......do
Excluded
Accrued.
......do
Included,
except
accrued as
reimbursement.
(21) Compensation (civilian) for injury or
death.
Included
Included
(22) Contributions by a public or private
employer to a:
Public or private health or hospitalization Excluded
plan for an active or retired employee.
Retired employee as reimbursement for
Included
premiums for supplementary medical
insurance benefits under the Social
Security Program (Pub. L. 91-588;
84 Stat. 1580).
Included
(23) Overtime pay; Government employees.
Included
Included
(24) Commercial life insurance; disability,
Included (as
accident, or health insurance, less payments received).
of medical or hospital expenses resulting
from the accident or disease for which
payments are made.
Excluded
Included (as
received).
(25) Commercial annuities or endowments.
......do
Included
(special
provision).
(26) Dividends from commercial insurance.
Excluded
Excluded
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(27) Insurance under Merchant Marine Act of
1936, as amended.
Included
Included
(28) Reimbursement for casualty loss (Pub.
Included
L. 100-687).
Other fire Insurance.
Excluded
Excluded
(29) Bequests, devises and inheritances:
Property.
Included
Money.
......do
Joint bank accounts.
......do
(30) Profit from sale of property.
Excluded
Excluded
Included
......do
Excluded
Excluded
(31) Jury duty or obligatory civic duties.
......do
......do
(32) Relocation payments (Pub. L. 90-448;
Pub. L. 90-495).
......do
......do
(33) The following programs administered by
the ACTION Agency:
Foster Grandparent Program and Older Amer- ......do
icans Community Service Programs
payments
(Pub. L.
Income
......do
Pension;
section 306
(veterans,
surviving
spouses and
children)
Pension; oldlaw (veterans,
surviving
spouses and
children)
(1) Total income from employment, business,
investments or rents.
(2) Income of spouse.
Included
Excluded
(3) Earnings of members of family under legal
age.
(4) Earned income of child-claimant.
Included
(6) Value of maintenance by relative, friend,
or organization.
(7) Rental value of property owned by and
resided in by claimant.
(8) Charitable donations.
(9) Family allowance authorized by service
personnel.
......do
......do
(5) Gifts, including contributions from adult
members of family:
Property.
......do
Money.
......do
Included
Excluded
......do
......do
Included
Excluded
......do
Included
......do
Excluded
......do
......do
Included
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(10) Reasonable value of allowances to person
in service in addition to base pay.
(11) Mustering-out pay.
......do
Included
except as
earned income
of childclaimant.
Excluded
(12) Six-months' death gratuity.
......do
(13) Bonus or similar cash gratuity paid by
any State based on service in Armed Forces
of United States.
Excluded
......do
Excluded
Excluded
(14) Retired Serviceman's Family Protection
Plan; Survivor Benefit Plan (10 U.S.C. ch.
73):
Retired Serviceman's Family Protection
Plan (Subch. I):
Annuities.
......do
......do
Refund (10 U.S.C. 1446).
Included
Included
Survivor Benefit Plan (Subch. II) (Pub. L.......do
......do
92-425; 86 Stat. 706).
Annuity under § 653, Pub. L. 100-456.
Excluded
Excluded
(15) Retirement pay received direct from
service department.
Included
......do
(16) Retirement benefits; general.
......do
(17) Social security benefits:
Old age and survivors', and disability
insurance.
Charitable programs.
Lump-sum death payments.
Supplemental security income.
(18) Railroad Retirement benefits.
(19) Retirement pay waived under Federal
statute.
Included
......do
......do
......do
Disability
pension-Excluded
Death
pensionIncluded.
Excluded
Included
......do
......do
Included
Excluded
......do
......do
Included
......do
(20) Department of Veterans Affairs payments:
Pension.
Excluded
Excluded
Compensation and dependency and indemnity ......do
......do
compensation.
World War I adjusted compensation.
......do
Included
U.S. Government life insurance or national Excluded
Excluded
service life insurance for disability or
death, maturity of endowment policies,
and dividends, including special and
termination dividends.
Servicemembers' group life insurance.
......do
......do
Veterans' group life insurance.
......do
......do
Servicemembers' indemnity.
......do
......do
Subsistence allowance (38 U.S.C. ch. 31). Included
Included
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Veterans educational assistance in excess ......do
......do
of amounts expended for training (38
U.S.C. ch. 34).
Educational assistance (38 U.S.C. ch. 35). Excluded
Excluded
Special allowance under 38 U.S.C. 1312(a). ......do
Included
Statutory burial allowance.
......do
Excluded
Accrued.
......do
Included,
except
accrued as
reimbursement
(21) Compensation (civilian) for injury or
death.
Included
Included
(22) Contributions by a public or private
employer to a:
Public or private health or hospitalization Excluded
plan for an active or retired employee.
Retired employee as reimbursement for
Excluded
premiums for supplementary medical
insurance benefits under the Social
Security Program (Pub. L. 91-588;
84 Stat. 1580).
(23) Overtime pay; Government employees.
Excluded
Excluded
Disability
pension -Excluded.
Death
pensionIncluded.
Included
(24) Commercial life insurance; disability,
Included
accident, or health insurance, less payments (special
of medical or hospital expenses resulting
provision).
from the accident or disease for which
payments are made.
Included (as
received).
(25) Commercial annuities or endowments.
......do
Included
(special
provision).
(26) Dividends from commercial insurance.
Excluded
Excluded
(27) Insurance under Merchant Marine Act of
1936, as amended.
Included
Included
(28) Reimbursement for casualty loss (Pub.
Included
L. 100-687).
Other fire Insurance.
Excluded
Included
(29) Bequests, devises and inheritances:
Property.
Included
Money.
......do
Joint bank accounts.
......do
(30) Profit from sale of property.
Excluded
......do
Included
Excluded
Excluded
Excluded
(31) Jury duty or obligatory civic duties.
......do
......do
(32) Relocation payments (Pub. L. 90-448;
Pub. L. 90-495).
......do
......do
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(33) The following programs administered by
the ACTION Agency:
Foster Grandparent Program and Older Amer- ......do
icans Community Service Programs payments
(Pub. L. 93-29; 87 Stat. 55).
Volunteers in Service to America (VISTA), ......do
University Year for ACTION (UYA), Program
for Local Services (PLS), ACTION
Cooperative Volunteers (ACV), Foster
Grandparent Program (FGP), and Older
American Community Service Programs,
Retired Senior Volunteer Program (RSVP),
Senior Companion Program Pub. L.
93-113; 87 Stat. 394).
......do
......do
(34) The Service Corps of Retired Executives
(SCORE) and Active Corps of Executives (ACE)
administered by the Small Business Administration (Pub. L. 93-113; 87 Stat. 394).
......do
......do
(35) Agent Orange settlement payments (Pub.
L. 101-201).
Excluded
Excluded
(36) Restitution to individuals of Japanese
ancestry (Pub. L. 100-383).
Excluded
Excluded
(37) Income received by American Indian
beneficiaries from Trust or Restricted
lands (Pub. L. 103-66).
Excluded
Excluded
(38) Income received under Section 6 of the
Included
Radiation Exposure Compensation Act (Pub. L.
101-426)
Included
(39) Cash, stock, land or other interests
received from a Native Corporation under
the Alaska Native Claims Settlement Act
(43) U.S.C.1601 et seq.)
Excluded
Excluded
(40) Monetary allowance under 38 U.S.C.
chapter 18 for certain individuals
who are children of Vietnam Veterans
(38 U.S.C. 1823(c)).
Excluded
Excluded
(41) Income received under the Victims of Crime Excluded fn1
Act of 1984 (42 U.S.C. 10601-10605).
(42) Income received under the
Medicare prescription drug discount
card and transitional assistance
program (42 U.S.C. 1395w-141(g)(6)).
Income
(1) Total income from employment, business,
investments, or rents.
(2) Income of spouse.
Excluded
Excluded fn1
Excluded
See -§ 3.262(a).
§ 3.262(b).
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(3) Earnings of members of family under legal age.
§ 3.250(b)(2).
§ 3.252(e)(3).
(4) Earned income of child-claimant.
(5) Gifts, including contributions from adult
members of family:
Property.
Money.
§ 3.262(k).
(6) Value of maintenance by relative, friend,
or organization.
§ 3.262(c).
(7) Rental value of property owned by and
resided in by claimant.
(8) Charitable donations.
§ 3.262(d).
(9) Family allowance authorized by service
personnel.
(10) Reasonable value of allowances to person in
service in addition to base pay.
(11) Mustering-out pay.
(12) Six-months' death gratuity.
(13) Bonus or similar cash gratuity paid by any
State based on service in Armed Forces of
United States.
(14) Retired Serviceman's Family Protection
Plan; Survivor Benefit Plan (10 U.S.C. ch. 73):
Retired Serviceman's Family Protection
Plan (Subch. I):
Annuities.
Refund (10 U.S.C. 1446).
Survivor Benefit Plan (Subch. II) (Pub. L.
92-425; 86 Stat. 706).
Annuity under § 653, Pub. L. 100-456.
§ 3.262(e).
§ 3.262(r).
(15) Retirement pay received direct from service
§ 3.262(e).
department.
§ 3.262(h).
(16) Retirement benefits; general.
(17) Social security benefits:
Old age and survivors', and disability
insurance.
Charitable programs.
Lump-sum death payments.
Supplemental security income.
(18) Railroad Retirement benefits.
(19) Retirement pay waived under Federal
statute.
§ 3.262(e).
§ 3.262(f).
§ 3.262(g).
§ 3.262(h).
(20) Department of Veterans Affairs payments:
Pension.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
Compensation and dependency and indemnity
compensation.
World War I adjusted compensation.
U.S. Government life insurance or national
service life insurance for disability or
death, maturity of endowment policies,
and dividends, including special and
termination dividends.
Servicemembers' group life insurance.
Veterans' group life insurance.
Servicemembers' indemnity.
Subsistence allowance (38 U.S.C. ch. 31).
Veterans educational assistance in excess
of amounts expended for training (38
U.S.C. ch. 34).
Educational assistance (38 U.S.C. ch. 35).
Special allowance under 38 U.S.C. 1312(a).
Statutory burial allowance.
Accrued.
(21) Compensation (civilian) for injury or
death.
§ 3.262(i).
(22) Contributions by a public or private
employer to a:
Public or private health or hospitalization
plan for an active or retired employee.
Retired employee as reimbursement for
premiums for supplementary medical
insurance benefits under the Social
Security Program (Pub. L. 91-588;
84 Stat. 1580).
(23) Overtime pay; Government employees.
(24) Commercial life insurance; disability,
accident, or health insurance, less payments
of medical or hospital expenses resulting
from the accident or disease for which
payments are made.
(25) Commercial annuities or endowments.
§ 3.262(j)
§ 3.262(j).
(26) Dividends from commercial insurance.
(27) Insurance under Merchant Marine Act of
1936, as amended.
(28) Reimbursement for casualty loss (Pub.
L. 100-687).
Other fire Insurance.
(29) Bequests, devises and inheritances:
Property.
Money.
Joint bank accounts.
(30) Profit from sale of property.
§ 3.262(t).
§ 3.262(t).
§ 3.262(k).
§ 3.262(k)(1).
§ 3.262(k).
(31) Jury duty or obligatory civic duties.
(32) Relocation payments (Pub. L. 90-448; Pub.
§ 3.262(c).
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
L. 90-495).
(33) The following programs administered by
the ACTION Agency:
Foster Grandparent Program and Older Americans Community Service Programs payments
(Pub. L. 93-29; 87 Stat. 55).
Volunteers in Service to America (VISTA),
University Year for ACTION (UYA), Program
for Local Services (PLS), ACTION
Cooperative Volunteers (ACV), Foster
Grandparent Program (FGP), and Older American
Community Service Programs, Retired Senior
Volunteer Program (RSVP), Senior Companion
Program (Pub. L. 93-113; 87 Stat. 394).
§ 3.262(q)(1).
§ 3.262(q)(2).
(34) The Service Corps of Retired Executives
(SCORE) and Active Corps of Executives (ACE)
administered by the Small Business Administration. (Pub. L. 93-113; 87 Stat. 394).
§ 3.262(q)(2).
(35) Agent Orange settlement payments (Pub.
L. 101-201).
§ 3.262(s).
(36) Restitution to individuals of Japanese
ancestry (Pub. L. 100-383).
§ 3.262(u).
(37) Income received by American Indian
beneficiaries from Trust or Restricted
lands (Pub. L. 103-66).
§ 3.262(v).
(38) Income received under Section 6 of the
Radiation Exposure Compensation Act (Pub. L.
101-426)
3.262(w)
(39) Cash, stock, land or other interests
received from a Native Corporation under
the Alaska Native Claims Settlement Act
(43) U.S.C.1601 et se
3.262(x)
fn1 The compensation received through a crime victim compensation program will be
excluded from income computations unless the total amount of assistance received from
all federally funded programs is sufficient to fully compensate the claimant for losses
suffered as a result of the crime.
(b) Deduction of amounts paid by claimant.
Deduction
(1) Unusual medical expenses.
Dependency
(parents)
Dependency and
indemnity
compensation
Not authorized
Authorized
(2) Veteran: just debts, expenses of last Not authorized
Authorized,
illness and burial.
except debts
(3) Veteran's spouse or child: expenses of Not authorized
last illness and burial.
Not authorized
(4) Parent's spouse: just debts; expenses Not authorized
Authorized
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
of last illness and burial.
(5) Prepayment on real property mortgages Not authorized
after death of spouse (Pub. L. 91-588).
Deduction
Pension;
Pension; old- section 306
law veterans, (veterans,
surviving
surviving
spouses, and spouses, and
children)
children)
Not authorized
See
(1) Unusual medical expenses. Not authorized Authorized §§ 3.262(b)(1) and
(1).
(2) Veteran: just debts,
Not authorized Authorized §§ 3.262(m) and
expenses of last illness and
(o).
burial.
(3) Veteran's spouse or child: Not authorized Authorized § 3.262(n).
expenses of last illness and
burial.
(4) Parent's spouse: just
debts; expenses of last
illness and burial.
--------
--------
§ 3.262(o).
(5) Prepayment on real property Not authorized Authorized §§ 3.262(k)(6).
mortgages after death of
spouse (Pub. L. 91-588).
(c) Corpus of estate.
Pension;
section 306
Pension; old(veterans,
Dependency and law (veterans,
surviving
Dependency
indemnity
widows, and
spouses, and
(parents)
compensation
children)
children)
Considered
Not considered
Not considered
Considered
See
§ 3.263.
conditionally.
[28 FR 31, Jan. 1, 1963, as amended at 29 FR 15205, Nov. 11, 1964; 31 FR 15632, Dec.
13, 1966; 33 FR 15286, Oct. 15, 1968; 36 FR 8446, May 6, 1971; 37 FR 6677, April 1,
1972; 37 FR 7092, April 8, 1972; 37 FR 21436, Oct. 11, 1972; 38 FR 872, Jan. 5, 1973;
38 FR 26804, Sept. 26, 1973; 38 FR 28826, Oct. 17, 1973; 40 FR 13305, March 26, 1975;
40 FR 57459, Dec. 10, 1975; 41 FR 17386, April 26, 1976; 42 FR 43834, Aug. 31, 1977;
57 FR 59298, Dec. 15, 1992; 58 FR 12174, March 3, 1993; 58 FR 31909, June 7, 1993;
58 FR 33766, June 21, 1993; 59 FR 37695, July 25, 1994; 60 FR 2522, Jan. 10, 1995; 60
FR 18355, April 11, 1995; 62 FR 35969, 35970, July 3, 1997; as corrected at 62 FR
47532, Sept. 9, 1997; 62 FR 51274, 51278, Sept. 30, 1997; 67 FR 49585, 49586, July 31,
2002; 68 FR 60851, 60852, Oct. 24, 2003]
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[EFFECTIVE DATE NOTE: 67 FR 49585, 49586, July 31, 2002, revised paragraph
(a)(40), effective July 31, 2002; 68 FR 60851, 60852, Oct. 24, 2003, added entry (41) to
the table in paragraph (a), effective Oct. 24, 2003.]
lx
§ 3.262 Evaluation of income.
Discussion and Analysis in the Veterans Benefits Manual
(a) Total income. All income from sources such as wages, salaries, earnings, bonuses
from employers, income from a business or profession or from investments or rents as
well as the fair value of personal services, goods or room and board received in lieu
thereof will be included.
(1) Salary is not determined by "takehome" pay, but includes deductions made under a
retirement act or plan and amounts withheld by virtue of income tax laws.
(2) The gross income from a business or profession may be reduced by the necessary
operating expenses, such as cost of goods sold, or expenditures for rent, taxes, and
upkeep. Depreciation is not a deductible expense. The cost of repairs or replacement may
be deducted. The value of an increase in stock inventory of a business is not considered
income.
(3) A loss sustained in operating a business, profession, or farm or from investments may
not be deducted from income derived from any other source.
(b) Income of spouse. Income of the spouse will be determined under the rules applicable
to income of the claimant.
(1) Parents. Where the mother and father, or remarried parent and spouse are living
together, the total combined income will be considered in determining dependency, or in
determining the rate of dependency and indemnity compensation payable to the parent.
This rule is equally applicable where both parents have remarried and each is living with
his or her spouse. If the remarriage of a parent has been terminated, or the parent is
separated from his or her spouse, income of the spouse will be excluded.
(2) Veterans. The separate income of the spouse of a disabled veteran who is entitled to
pension under laws in effect on June 30, 1960, will not be considered. Where pension is
payable under section 306(a) of Pub. L. 95-588, to a veteran who is living with a spouse
there will be included as income of the veteran all income of the spouse in excess of
whichever is the greater, the amount of the spouse income exclusion specified in section
306(a)(2)(B) of Pub. L. 95-588 as increased from time to time under section 306 (a)(3) of
Pub. L. 95-588 or the total earned income of the spouse, which is reasonably available to
or for the veteran, unless hardship to the veteran would result. Each time there is an
increase in the spouse income exclusion pursuant to section 306(a)(3) of Pub. L. 95-588,
the actual amount of the exclusion will be published in the "Notices" section of the
Federal Register. The presumption that inclusion of such income is available to the
veteran and would not work a hardship on him or her may be rebutted by evidence of
unavailability or of expenses beyond the usual family requirements.
(Authority: 38 U.S.C. 1521(f); sec. 306(a)(2)(B) of Pub. L. 95-588)
(c) Maintenance. The value of maintenance furnished by a relative, friend, or a charitable
organization (civic or governmental) will not be considered income. Where the claimant
is maintained in a rest home or other community institution or facility, public or private,
because of impaired health or advanced age, money paid to the home or to the claimant to
cover the cost of maintenance will not be considered income, regardless of whether it is
furnished by a relative, friend or charitable organization. The expense of maintenance is
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
not deductible if it is paid from the claimant's income, except as provided in paragraph (l)
of this section in claims for dependency and indemnity compensation.
(d) Charitable donations. Charitable donations from public or private relief or welfare
organizations will not be considered income except in claims for pension under laws in
effect on June 30, 1960. In the latter cases, additional charitable allowances received by a
claimant for members of his or her family may not be divided per capita in determining
the amount of the claimant's income.
(e) Retirement benefits; general. Retirement benefits, including an annuity or endowment,
paid under a Federal, State, municipal, or private business or industrial plan are
considered income as limited by this paragraph. Where the payments received consist of
part principal and part interest, interest will not be counted separately.
(1) Protected pension. Except as provided in this paragraph (e)(1), effective January 1,
1965, in determining income for pension purposes under laws in effect on June 30, 1960,
10 percent of the retirement payments received by a veteran, surviving spouse, or child
will be excluded. The remaining 90 percent will be considered income as received.
Where the retirement benefit is based on the claimant's own employment, payments will
not be considered income until the amount of the claimant's personal contribution (as
distinguished from amounts contributed by the employer) has been received. Thereafter
the 10 percent exclusion will apply.
(2) Pension; Pub. L. 86-211. Except as provided in this subparagraph, effective January 1,
1965, in determining income for pension purposes, under Pub. L. 86-211 (73 Stat. 432),
10 percent of the retirement payments received by a veteran, the veteran's spouse,
surviving spouse, or child will be excluded. The remaining 90 percent will be considered
income as received. Where a person was receiving or entitled to receive pension and
retirement benefits based on his or her own employment on December 31, 1964, the
retirement payments will not be considered income until the amount of the claimant
personal contribution (as distinguished from amounts contributed by the employer) has
been received. Thereafter the 10 percent exclusion will apply.
(3) Compensation. In determining dependency of a parent for compensation purposes, all
payments will be considered income as received.
(4) Dependency and indemnity compensation. Except as provided in this subparagraph,
effective January 1, 1967, in determining income for dependency and indemnity
compensation purposes, 10 percent of the retirement payments received by a deceased
veteran's parent or by the parent's spouse will be excluded. The remaining 90 percent will
be considered income as received. Where a parent was receiving or entitled to receive
dependency and indemnity compensation and retirement benefits based on his or her own
employment on December 31, 1966, the retirement payments will not be considered
income until the amount of the claimant's personal contribution (as distinguished from
amounts contributed by the employer) has been received. Thereafter the 10 percent
exclusion will apply.
(Authority: 38 U.S.C. 1315(g), 1503(a)(6))
(f) Social security benefits. Old age and survivor's insurance and disability insurance
under title II of the Social Security Act will be considered income as a retirement benefit
under the rules contained in paragraph (e) of this section. Benefits received under
noncontributory programs, such as old age assistance, aid to dependent children, and
supplemental security income are subject to the rules contained in paragraph (d) of this
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
section applicable to charitable donations. The lumpsum death payment under title II of
the Social Security Act will be considered as income except in claims for dependency and
indemnity compensation and for pension under Pub. L. 86-211 (73 Stat. 432).
(g) Railroad retirement benefits -- (1) Parents, surviving spouses and children. Retirement
benefits received from the Railroad Retirement Board will be considered as income under
the rules contained in paragraph (e) of this section. (See paragraph (h) of this section as to
waivers.)
(2) Veterans. Effective July 1, 1959, retirement benefits received from the Railroad
Retirement Board were excluded from consideration as income in determining eligibility
for disability pension. (45 U.S.C. 228s-1) This exclusion continues to be applicable to
claims under laws in effect on June 30, 1960. For purposes of section 306 pension, such
retirement benefits will be considered as income under the rules contained in paragraph
(e) of this section.
(h) Retirement benefits waived. Except as provided in this paragraph, retirement benefits
(pension or retirement payments) which have been waived will be included as income.
For the purpose of determining dependency of a parent, or eligibility of a parent for
dependency and indemnity compensation or eligibility of a veteran, surviving spouse, or
child for pension under laws in effect on June 30, 1960, retirement benefits from the
following sources which have been waived pursuant to Federal statute will not be
considered as income:
(1) Civil Service Retirement and Disability Fund;
(2) Railroad Retirement Board (see paragraph (g)(2) of this section);
(3) District of Columbia, firemen, policemen, or public school teachers;
(4) Former lighthouse service.
(i) Compensation (civilian) for injury or death. (1) Compensation paid by the Bureau of
Employees' Compensation, Department of Labor (of the United States), or by Social
Security Administration, or by Railroad Retirement Board, or pursuant to any workmen's
compensation or employer's liability statute, or damages collected because of personal
injury or death, less medical, legal, or other expenses incident to the injury or death, or
the collection or recovery of such moneys will be considered income as received, except
as provided in paragraph (i)(2) of this section. The criteria of paragraph (i)(1) of this
section are for application as to all medical expenditures after such award or settlement.
(Authority: Pub. L. 92-198, 85 Stat. 663)
(2) For pension, effective October 7, 1966, and for dependency and indemnity
compensation effective January 1, 1967, if payments based on permanent and total
disability or death are received from the Bureau of Employees' Compensation, Social
Security Administration or Railroad Retirement Board, or pursuant to any workmen's
compensation or employer's liability statute, there will be excluded 10 percent of the
payments received after deduction of medical, legal, and other expenses as authorized by
paragraph (i)(1) of this section. The 10 percent exclusion does not apply to damages
collected incident to a tort suit under other than an employer's liability law of the United
States or a political subdivision of the United States, or to determinations of dependency
for compensation purposes.
(j) Commercial insurance -- (1) Annuity or endowment insurance. For pension, effective
January 1, 1965, or for dependency and indemnity compensation, effective January 1,
1967, the provisions of paragraph (e) of this section apply. In such cases, 10 percent of
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
the payments received will be excluded. In dependency and indemnity compensation
claims, where the parent is receiving or entitled to receive dependency and indemnity
compensation on December 31, 1966, and is also receiving or entitled to receive annuity
payments on that date, or endowment insurance matures on or before that date, no part of
the payments received will be considered income until the full amount of the
consideration has been received, after which 10 percent of the amount received will be
excluded. For compensation, the full amount of each payment is considered income as
received.
(2) Life insurance; general. In determining dependency, or eligibility for dependency and
indemnity compensation, or for section 306 pension the full amount of payments is
considered income as received. For section 306 pension, effective October 7, 1966, and
for dependency and indemnity compensation, effective January 1, 1967, 10 percent of the
payments received will be excluded.
(3) Life insurance; old-law pension. For pension under laws in effect on June 30, 1960,
10 percent of the payments received will be excluded. Where it is considered that life
insurance was received in a lump sum in the calendar year in which the veteran died and
payments are actually received in succeeding years, no part of the payments received in
succeeding years will be considered income until an amount equal to the lump-sum face
value of the policy has been received, after which 10 percent of the payments received
will be excluded. The 10 percent exclusion is authorized effective October 7, 1966.
(4) Disability, accident or health insurance. For pension, effective October 7, 1966, and
for dependency and indemnity compensation, effective January 1, 1967, there will be
excluded 10 percent of the payments received for disability after deduction of medical,
legal, or other expenses incident to the disability. For compensation, after deduction of
such expenses, the full amount of payments is considered income as received.
(k) Property -- (1) Ownership. The terms of the recorded deed or other evidence of title
will constitute evidence of ownership of real or personal property. This includes property
acquired through purchase, bequest or inheritance except that, effective January 1, 1971,
amounts in joint accounts in banks and similar institutions acquired by reason of the
death of another joint owner shall not be considered income of a survivor for section 306
pension purposes. With the foregoing exception, if property is owned jointly each person
will be considered as owning a proportionate share. The claimant's share of property held
in partnership will be determined on the facts found. In the absence of evidence to the
contrary, the claimant's statement as to the terms of ownership will be accepted.
(Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508)
(2) Income-producing property. Income received from real or personal property owned
by the claimant will be counted. The claimant's share will be determined in proportion to
his right according to the rules of ownership.
(3) Sale of property. Except as provided in paragraphs (k)(4) and (5) of this section, net
profit from the sale of real or personal property will be counted. In determining net profit
from the sale of property owned prior to the date of entitlement, the value at the date of
entitlement will be considered in relation to the selling price. Where payments are
received in installments, payments will not be considered income until the claimant has
received amounts equal to the value of the property at the date of entitlement. Principal
and interest will not be counted separately.
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(4) Homes. Net profit from the sale of the claimant's residence which is received during
the calendar year of sale will not be considered as income under the following conditions:
(i) To the extent that it is applied within the calendar year of the sale, or the succeeding
calendar year, to the purchase price of another residence as his principal dwelling;
(ii) Such application of the net profit is reported within 1 year following the date so
applied, and
(iii) The net profit is so applied after January 10, 1962, to a purchase made after said date.
This exclusion will not apply where the net profit is applied to the price of a home
purchased earlier than the calendar year preceding the calendar year of sale of the old
residence.
(5) Sale of property; section 306 pension and dependency and indemnity compensation.
For pension under section 306 pension and for dependency and indemnity compensation,
profit from the sale of real or personal property other than in the course of a business will
not be considered income. This applies to property acquired either before or after the date
of entitlement. Any amounts received in excess of the sales price will be counted as
income. Where payments are received in installments, principal and interest will not be
counted separately. For pension, this provision is effective January 1, 1965; for
dependency and indemnity compensation, January 1, 1967.
(Authority: 38 U.S.C. 1503(a)(10); 38 U.S.C. 1315(g))
(6) Payments on mortgages on real property; section 306 pension. Effective January 1,
1971, for the purposes of section 306 pension, an amount equaling any prepayments
made by a veteran or surviving spouse on a mortgage or similar type security instrument
in existence at the death of veteran or spouse on real property which prior to the death
was the principal residence of the veteran and spouse will be excluded from consideration
as income if such payment was made after the death and prior to the close of the year
succeeding the year of death.
(Authority: 38 U.S.C. 1503(a)(14))
(l) Unusual medical expenses. Within the provisions of paragraphs (l)(1) through (4) of
this section there will be excluded from the amount of the claimant's annual income any
unreimbursed amounts which have been paid within the calendar year for unusual
medical expenses regardless of the year the indebtedness was incurred. The term unusual
means excessive. It does not describe the nature of a medical condition but rather the
amount expended for medical treatment in relationship to the claimant's resources
available for sustaining a reasonable mode of life. Unreimbursed expenditures which
exceed 5 percent of the claimant's reported annual income will be considered unusual.
Health, accident, sickness and hospitalization insurance premiums will be included as
medical expenses in determining whether the claimant's unreimbursed medical expenses
meet the criterion for unusual. A claimant's statement as to amounts expended for
medical expenses ordinarily will be accepted unless the circumstances create doubt as to
its credibility. An estimate based on a clear and reasonable expectation that unusual
medical expenditure will be realized may be accepted for the purpose of authorizing
prospective payments of benefits subject to necessary adjustment in the award upon
receipt of an amended estimate or after the end of the calendar year upon receipt of an
income questionnaire.
(1) Veterans. For the purpose of section 306 pension, there will be excluded
unreimbursed amounts paid by the veteran for unusual medical expenses of self, spouse,
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
and other relatives of the veteran in the ascending as well as descending class who are
members or constructive members of the veteran's household and whom the veteran has a
moral or legal obligation to support.
(2) Surviving spouses. For the purpose of section 306 pension, there will be excluded
unreimbursed amounts paid by the surviving spouse for the unusual medical expenses of
self, the veteran's children, and other relatives of the surviving spouse in the ascending as
well as descending class who are members or constructive members of the surviving
spouse's household and whom the surviving spouse has a moral or legal obligation to
support.
(3) Children. For the purpose of section 306 pension, there will be excluded
unreimbursed amounts paid by a child for the unusual medical expenses of self, parent,
and brothers and sisters of the child.
(4) Parents. For dependency and indemnity compensation purposes there will be excluded
unreimbursed amounts paid by the parent for the unusual medical expenses of self,
spouse, and other relatives of the parent in the ascending as well as descending class who
are members or constructive members of the parent's household and whom the parent has
a moral or legal obligation to support. If the combined annual income of the parent and
the parent's spouse is the basis for dependency and indemnity compensation, the
exclusion is applicable to the combined annual income and extends to the unusual
unreimbursed medical expenses of the spouse's relatives in the ascending as well as
descending class who are members or constructive members of the household and whom
the parent's spouse has a moral or legal obligation to support.
(Authority: 38 U.S.C. 1315(f)(3); Sec. 306, Pub. L. 95-588; 92 Stat. 2508)
(m) Veteran's final expenses; pension. In claims for pension under section 306, there will
be excluded, as provided in paragraph (p) of this section:
(1) From the income of a surviving spouse, amounts equal to amounts paid for the
expenses of the veteran's last illness;
(2) From the income of a surviving spouse, or of a child of a deceased veteran where
there is no surviving spouse, amounts equal to amounts paid by the surviving spouse or
child for the veteran's just debts, for the expenses of the veteran's last illness, and burial
to the extent such expenses are not reimbursed by the Department of Veterans Affairs.
The term "just debts" does not include any debt that is secured by real or personal
property.
(Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508)
(n) Final expenses of veteran's spouse or child; pension. In claims for pension under
section 306, there will be excluded, as provided in paragraph (p) of this section:
(1) From the income of a veteran, amounts equal to amounts paid by the veteran for the
last illness and burial of the veteran's deceased spouse or child; and
(2) From the income of a spouse or surviving spouse, amounts equal to amounts paid by
her as spouse or surviving spouse of the deceased veteran for the last illness and burial of
a child of such veteran.
(Authority: Sec. 306, Pub. L. 95-588; 92 Stat. 2508)
(o) Final expenses of veteran or parent's spouse; dependency and indemnity
compensation. In claims for dependency and indemnity compensation there will be
excluded from the income of a parent, as provided in paragraph (p) of this section,
amounts equal to amounts paid by the parent for:
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(1) The expenses of the veteran's last illness and burial to the extent that such expenses
are not reimbursed under 38 U.S.C. ch. 23.
(2) The parent's deceased spouse's just debts, the expenses of the spouse's last illness to
the extent such expenses are not reimbursed under 38 U.S.C. ch. 51 and the expenses of
the spouse's burial to the extent that such expenses are not reimbursed under 38 U.S.C. ch.
23 or 51. The term "just debts" does not include any debt that is secured by real or
personal property.
(Authority: 38 U.S.C. 1315(f))
(p) Final expenses; year of exclusion. For the purpose of paragraphs (m), (n) and (o) of
this section, in the absence of contradictory information, the claimant's statement will be
accepted as to the nature, amount and date of payment, and identity of the creditor.
Except as provided in this paragraph, payments will be deducted from annual income for
the year in which such payments are made. Payments made by a veteran, the spouse or
surviving spouse of a veteran, child or, in dependency and indemnity compensation
claims, by a parent during the calendar year following the year in which the veteran,
spouse or child died may be deducted from the claimant's income for the year of last
illness or burial if this deduction is advantageous to the claimant.
(q) Volunteer programs -- (1) Payments under Foster Grandparent Program and Older
Americans Community Service Programs. Effective May 3, 1973, compensation received
under the Foster Grandparent Program and the Older Americans Community Service
Programs will be excluded from income in claims for compensation, pension and
dependency and indemnity compensation.
(Authority: Pub. L. 93-29; 87 Stat. 55)
(2) Payments under domestic volunteer service act programs. Effective October 1, 1973,
compensation or reimbursement received under a Domestic Volunteer Service Act
Program (including Volunteers in Service to America (VISTA), University Year for
ACTION (UYA), Program for Local Services (PLS), ACTION Cooperative Volunteers
(ACV), Foster Grandparent Program (FGP) and Older American Community Service
Program, Retired Senior Volunteer Program (RSVP), Senior Companion Program,
Service Corps of Retired Executives (SCORE) and Active Corps of Executives (ACE),
will be excluded from income in claims for compensation, pension and dependency and
indemnity compensation.
(Authority: Pub. L. 93-113; 87 Stat. 394)
(r) Survivor benefit annuity. For the purposes of old law pension and section 306 pension,
there shall be excluded from computation of income annuity paid by the Department of
Defense under the authority of section 653, Public Law 100-456 to qualified surviving
spouses of veterans who died prior to November 1, 1953. (September 29, 1988)
(Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991)
(s) Agent Orange settlement payments. In claims for pension and parents' dependency
and indemnity income, there shall be excluded from computation of income payments
received by any person in the case of In re Agent Orange Product Liability Litigation in
the United States District Court for the Eastern District of New York (MDL No. 381).
(January 1, 1989)
(Authority: Pub. L. 101-201, 103 Stat. 1795)
(t) Reimbursement for casualty loss. The following sources of reimbursements for
casualty loss will not be considered as income in determining entitlement to benefits
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
under the programs specified. Amounts to be excluded from computation in parens'
dependency and indemnity compensation claims are limited to amounts of reimbursement
which do not exceed the greater of the fair market value or the reasonable replacement
cost of the property involved at the time immediately preceding the loss.
(1) Reimbursement for casualty loss of any kind in determining entitlement to parents'
dependency and indemnity compensation benefits. For purposes of paragraph (t) of this
section, the term "casualty loss" means the complete or partial destruction of property
resulting from an identifiable event of a sudden, unexpected or unusual nature.
(2) Proceeds from fire insurance in determining dependency of a parent for compensation
purposes or in determining entitlement to old-law and section 306 pension benefits.
(Authority: 38 U.S.C. 1315(f))
(u) Restitution to individuals of Japanese ancestry. Effective August 10, 1988, for the
purposes of old law pension, section 306 pension, parents' death compensation, and
parents' dependency and indemnity compensation, there shall be excluded from income
computation any payment made as restitution under Public Law 100-383 to individuals of
Japanese ancestry who were interned, evacuated, or relocated during the period
December 7, 1941, through June 30, 1946, pursuant to any law, Executive order,
Presidential proclamation, directive, or other official action respecting these individuals.
(v) Income received by American Indian beneficiaries from trust or restricted lands.
There shall be excluded from income computation payments of up to $ 2,000 per
calendar year to an individual Indian from trust lands or restricted lands as defined in 25
CFR 151.2. (January 1, 1994)
(Authority: Sec. 13736, Pub. L. 103-66; 107 Stat. 663)
(w) Radiation Exposure Compensation Act. For the purposes of parents' dependency and
indemnity compensation, there shall be excluded from income computation payments
under Section 6 of the Radiation Exposure Compensation Act of 1990.
(Authority: 42 U.S.C. 2210 note)
(x) Alaska Native Claims Settlement Act. There shall be excluded from income
computation any cash (including cash dividends on stock received from a Native
Corporation) to the extent that it does not, in the aggregate, exceed $ 2,000 per individual
per annum; stock (including stock issued or distributed by a Native Corporation as a
dividend or distribution on stock); a partnership interest; land or an interest in land
(including land or an interest in land received from a Native Corporation as a dividend or
distribution on stock); and an interest in a settlement trust. (November 2, 1994)
(Authority: Sec. 506, Pub. L. 103-446)
(y) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are
children of Vietnam veterans. There shall be excluded from income computation any
allowance paid under the provisions of 38 U.S.C. chapter 18 to or for an individual who
is the child of a Vietnam veteran.
(Authority: 38 U.S.C. 1823(c))
(z) Victims of Crime Act. For purposes of old law pension, section 306 pension, and
parents' dependency and indemnity compensation, amounts received as compensation
under the Victims of Crime Act of 1984 will not be considered income unless the total
amount of assistance received from all federally funded programs is sufficient to fully
compensate the claimant for losses suffered as a result of the crime.
(Authority: 42 U.S.C. 10602(c))
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(aa) Medicare Prescription Drug Discount Card and Transitional Assistance Program.
For purposes of old law pension, section 306 pension, and parents' dependency and
indemnity compensation, the payments received under the Medicare transitional
assistance program and any savings associated with the Medicare prescription drug
discount card will not be considered income.
(Authority: 42 U.S.C. 1395w-141(g)(6))
[28 FR 32, Jan. 1, 1963; 51 FR 4343 (1986); 52 FR 34908 (1987); 57 FR 59298, 59299
(1992); 58 FR 33767 (1993); 59 FR 35266, July 11, 1994; 59 FR 37696, July 25, 1994;
60 FR 2522, Jan. 10, 1995; 60 FR 18355, Apr. 11, 1995; 62 FR 5528, 5529, Feb. 6, 1997;
62 FR 51274, 51278, Sept. 30, 1997; 67 FR 49585, 49587, July 31, 2002; 68 FR 60851,
60852, Oct. 24, 2003; 70 FR 15590, March 28, 2005]
(Sec. 105, Pub. L. 100-383; 102 Stat. 905; Sec. 6, Pub. L. 102-371; 106 Stat. 1167, 1168)
[EFFECTIVE DATE NOTE: 67 FR 49585, 49587, July 31, 2002, revised paragraph (y),
effective July 31, 2002; 68 FR 60851, 60852, Oct. 24, 2003, added paragraph (z),
effective Oct. 24, 2003.]
§ 3.263 Corpus of estate; net worth.
(a) General. The following rules are for application in determining the corpus of estate of
a parent where dependency is a factor under § 3.250, and the net worth of a veteran,
surviving spouse, or child where pension is subject to Pub. L. 86-211 (73 Stat. 432) under
§ 3.252(b). Only the estate of the parent, in claims based on dependency, or the estate of
the veteran, surviving spouse, or child-claimant in claims for pension, will be considered.
In the absence of contradictory information, the claimant's statement as to ownership and
estimate of value will be accepted.
(b) Definition. Corpus of estate and net worth mean the market value, less mortgages or
other encumbrances, of all real and personal property owned by the claimant except the
claimant's dwelling (single-family unit) including a reasonable lot area, and personal
effects suitable to and consistent with the claimant's reasonable mode of life.
(c) Ownership. See § 3.262(k).
(d) Evaluation. In determining whether some part of the claimant's estate should be
consumed for his or her maintenance, consideration will be given to the amount of the
claimant's income, together with the following factors: whether the property can be
readily converted into cash at no substantial sacrifice; ability to dispose of property as
limited by community property laws; life expectancy; number of dependents who meet
the requirements of § 3.250(b)(2); potential rate of depletion, including unusual medical
expenses under the principles outlined in § 3.262(l) for the claimant and his or her
dependents.
(e) Agent Orange settlement payments. There shall be excluded from the corpus of estate
or net worth of a claimant any payment made from the Agent Orange Settlement Fund or
any other fund established pursuant to the settlement in the In re Agent Orange product
liability litigation, M.D.L. No. 381 (E.D.N.Y.). (January 1, 1989)
(Authority: Pub. L. 101-201, 103 Stat. 1795)
(f) Restitution to individuals of Japanese ancestry. Effective August 10, 1988, for the
purposes of section 306 pension and parents' death compensation, there shall be excluded
from the corpus of estate or net worth of a claimant any payment made as restitution
under Public Law 100-383 to individuals of Japanese ancestry who were interned,
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
evacuated, or relocated during the period December 7, 1941, through June 30, 1946,
pursuant to any law, Executive order, Presidential proclamation, directive, or other
official action respecting these individuals.
(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905; Sec. 6. Pub. L. 102-371; 106 Stat.
1167, 1168)
(g) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are
children of Vietnam veterans. There shall be excluded from the corpus of estate or net
worth of a claimant any allowance paid under the provisions of 38 U.S.C. chapter 18 to
or for an individual who is a child of a Vietnam veteran.
(Authority: 38 U.S.C. 1823(c))
(h) Victims of Crime Act. There shall be excluded from the corpus of estate or net worth
of a claimant any amounts received as compensation under the Victims of Crime Act of
1984 unless the total amount of assistance received from all federally funded programs is
sufficient to fully compensate the claimant for losses suffered as a result of the crime.
(Authority: 42 U.S.C. 10602(c))
(i) Medicare Prescription Drug Discount Card and Transitional Assistance Program.
There shall be excluded from the corpus of estate or net worth of a claimant payments
received under the Medicare transitional assistance program and any savings associated
with the Medicare prescription drug discount card.
(Authority: 42 U.S.C. 1395w-141(g)(6))
[28 FR 33, Jan. 1, 1963, as amended at 39 FR 28527, Aug. 8, 1974; 44 FR 45936, Aug. 6,
1979; 57 FR 59299, Dec. 15, 1992; 58 FR 33767, June 21, 1993; 62 FR 51274, 51279,
Sept. 30, 1997; 67 FR 49585, 49587, July 31, 2002; 68 FR 60851, 60852, Oct. 24, 2003;
70 FR 15590, March 28, 2005]
(Sec. 105, Pub. L. 100-383; 102 Stat. 905; Sec. 6, Pub. L. 102-371; 106 Stat. 1167, 1168)
[EFFECTIVE DATE NOTE: 67 FR 49585, 49587, July 31, 2002, revised paragraph (g),
effective July 31, 2002; 68 FR 60851, 60852, Oct. 24, 2003, added paragraph (h),
effective Oct. 24, 2003.]
CROSS REFERENCES: Reductions and discontinuances; dependency. See § 3.500(h).
Material change in income, net worth or change in status. See § 3.660. Income and net
worth questionnaires. See § 3.661.
§ 3.270 Applicability of various dependency, income and estate regulations.
(a) Sections 3.250 to 3.270. These sections are applicable to dependency, income and
estate determinations needed to determine entitlement or continued entitlement for the
following programs:
(1) Parents' death compensation.
(2) Old-law pension.
(3) Section 306 pension.
(4) Parents' dependency and indemnity compensation.
NOTE: Citations to title 38 U.S.C. in § § 3.250 to 3.270 referring to section 306 or
old-law pension generally refer to provisions of law in effect on December 31, 1978.
(b) Sections 3.271 to 3.300. These sections apply to income and estate determinations of
entitlement to the improved disability and death pension program which became effective
January 1, 1979.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
[44 FR 45936, Aug. 6, 1979]
38 U.S.C. 501(a).
——————————
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
REGULATIONS APPLICABLE TO THE IMPROVED PENSION PROGRAM
WHICH BECAME EFFECTIVE JANUARY 1, 1979
§ 3.271 Computation of income.
§ 3.272 Exclusions from income.
§ 3.273 Rate computation.
§ 3.274 Relationship of net worth to pension entitlement.
§ 3.275 Criteria for evaluating net worth.
§ 3.276 Certain transfers or waivers disregarded.
§ 3.277 Eligibility reporting requirements.
lxi
§ 3.271 Computation of income.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. Payments of any kind from any source shall be counted as income during the
12-month annualization period in which received unless specifically excluded under §
3.272.
(Authority: 38 U.S.C. 501)
(1) Recurring income. Recurring income means income which is received or anticipated
in equal amounts and at regular intervals (e.g., weekly, monthly, quarterly, etc.), and
which will continue throughout an entire 12-month annualization period. The amount of
recurring income for pension purposes will be the amount received or anticipated during
a 12-month annualization period. Recurring income which terminates prior to being
counted for at least one full 12-month annualization period will be treated as
nonrecurring income for computation purposes.
(2) Irregular income. Irregular income means income which is received or anticipated
during a 12-month annualization period, but which is received in unequal amounts or at
irregular intervals. The amount of irregular income for pension purposes will be the
amount received or anticipated during a 12-month annualization period following initial
receipt of such income.
(3) Nonrecurring income. Nonrecurring income means income received or anticipated on
a one-time basis during a 12-month annualization period (e.g., an inheritance). Pension
computations of income will include nonrecurring income for a full 12-month
annualization period following receipt of the income.
(b) Salary. Salary means the gross amount of a person's earnings or wages before any
deductions are made for such things as taxes, insurance, retirement plans, social security,
etc.
(c) Business, farm or professional income. (1) This includes gross income from a
business, farm or profession as reduced by the necessary operating expenses such as cost
of goods sold, or expenditures for rent, taxes, and upkeep, or costs of repairs or
replacements. The value of an increase in stock inventory of a business is not considered
income.
(2) Depreciation is not a deductible expense.
(3) A loss sustained in operating a business, profession, farm, or from investments, may
not be deducted from income derived from any other source.
(d) Income from property. Income from real or personal property is countable as income
of the property's owner. The terms of a recorded deed or other evidence of title shall
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
constitute evidence of ownership. This includes property acquired through purchase, gift,
devise, or descent. If property is owned jointly, income of the various owners shall be
determined in proportion to shares of ownership of the property. The owner's shares of
income held in partnership shall be determined on the basis of the facts found.
(e) Installments.--Income shall be determined by the total amount received or anticipated
during a 12-month annualization period.
(Authority: 38 U.S.C. 501)
(f) Deferred determinations. (1) When an individual is unable to predict with certainty the
amount of countable annual income, the annual rate of improved pension shall be reduced
by the greatest amount of anticipated countable income until the end of the 12-month
annualization period, when total income received during that period will be determined
and adjustments in pension payable made accordingly.
(Authority: 38 U.S.C. 501)
(2) When a claimed dependent is shown to have income which exceeds the additional
amount of benefits payable based on the claimed dependency, but evidence requirements
of § 3.204, § 3.205, § 3.209, or § 3.210 have not been met, the maximum annual rate of
improved pension shall be determined without consideration of the claimed dependency.
This amount shall be reduced by an amount which includes the income of the
unestablished dependent. Adjustments in computation of the maximum annual rate of
improved pension shall occur following receipt of evidence necessary to establish the
dependency.
(Authority: 38 U.S.C. 501(a))
(g) Compensation (civilian) for injury or death. Compensation paid by the United States
Department of Labor, Office of Workers' Compensation Programs, Social Security
Administration, or the Railroad Retirement Board, or pursuant to any worker's
compensation or employer's liability statute, or damages collected because of personal
injury or death, will be considered income as received. However, medical, legal or other
expenses incident to the injury or death, or incident to the collection or recovery of the
amount of the award or settlement, may be deducted. The criteria in § 3.272(g) apply as
to all medical expenditures after the award or settlement.
(Authority: 38 U.S.C. 501)
(h) Fractions of dollars. Fractions of dollars will be disregarded in computing annual
income.
[44 FR 45936, Aug. 6, 1979, as amended at 53 FR 23235, June 21, 1988; 57 FR 59299,
Dec. 15, 1992]
38 U.S.C. 501(a).
lxii
§ 3.272 Exclusions from income.
Discussion and Analysis in the Veterans Benefits Manual
The following shall be excluded from countable income for the purpose of determining
entitlement to improved pension. Unless otherwise provided, expenses deductible under
this section are deductible only during the 12-month annualization period in which they
were paid.
(Authority: 38 U.S.C. 501)
(a) Welfare. Donations from public or private relief, welfare, or charitable organizations.
(Authority: 38 U.S.C. 1503(a)(1))
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(b) Maintenance. The value of maintenance furnished by a relative, friend, or a charitable
organization (civic or governmental) will not be considered income. Where the individual
is maintained in a rest home or other community institution or facility, public or private,
because of impaired health or advanced age, money paid to the home or the individual to
cover the cost of maintenance will not be considered income, regardless of whether it is
furnished by a relative, friend, or charitable organization. The expense of maintenance is
not deductible if it is paid from the individual's income.
(Authority: 38 U.S.C. 501, 1503(a)(1))
(c) Department of Veterans Affairs pension benefits. Payments under chapter 15 of title
38, United States Code, including accrued pension benefits payable under 38 U.S.C.
5121.
(Authority: 38 U.S.C. 1503(a)(2))
(d) Reimbursement for casualty loss. Reimbursement of any kind for any casualty loss.
The amount to be excluded is not to exceed the greater of the fair market value or the
reasonable replacement cost of the property involved at the time immediately preceding
the loss. For purposes of this paragraph, the term "casualty loss" means the complete or
partial destruction of property resulting from an identifiable event of a sudden,
unexpected or unusual nature.
(Authority: 38 U.S.C. 1503(a)(5))
(e) Profit from sale of property. Profit realized from the disposition of real or personal
property other than in the course of business, except amounts received in excess of the
sales price, for example, interest on deferred sales is included as income. In installment
sales, any payments received until the sales price is recovered are not included as income,
but any amounts received which exceed the sales price are included, regardless of
whether they represent principal or interest.
(Authority: 38 U.S.C. 1503(a)(6))
(f) Joint accounts. Amounts in joint accounts in banks and similar institutions acquired by
reason of death of the other joint owner.
(Authority: 38 U.S.C. 1503(a)(7))
(g) Medical expenses. Within the provisions of the following paragraphs, there will be
excluded from the amount of an individual's annual income any unreimbursed amounts
which have been paid within the 12-month annualization period for medical expenses
regardless of when the indebtedness was incurred. An estimate based on a clear and
reasonable expectation that unusual medical expenditure will be realized may be accepted
for the purpose of authorizing prospective payments of benefits subject to necessary
adjustment in the award upon receipt of an amended estimate, or after the end of the
12-month annualization period upon receipt of an eligibility verification report.
(Authority: 38 U.S.C. 501)
(1) Veteran's income. Unreimbursed medical expenses will be excluded when all of the
following requirements are met:
(i) They were or will be paid by a veteran or spouse for medical expenses of the veteran,
spouse, children, parents and other relatives for whom there is a moral or legal obligation
of support;
(ii) They were or will be incurred on behalf of a person who is a member or a
constructive member of the veteran's or spouse's household; and
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(iii) They were or will be in excess of 5 percent of the applicable maximum annual
pension rate or rates for the veteran (including increased pension for family members but
excluding increased pension because of need for aid and attendance or being housebound)
as in effect during the 12-month annualization period in which the medical expenses were
paid.
(2) Surviving spouse's income. Unreimbursed medical expenses will be excluded when
all of the following requirements are met:
(i) They were or will be paid by a surviving spouse for medical expenses of the spouse,
veteran's children, parents and other relatives for whom there is a moral or legal
obligation of support;
(ii) They were or will be incurred on behalf of a person who is a member or a
constructive member of the spouse's household; and
(iii) They were or will be in excess of 5 percent of the applicable maximum annual
pension rate or rates for the spouse (including increased pension for family members but
excluding increased pension because of need for aid and attendance or being housebound)
as in effect during the 12-month annualization period in which the medical expenses were
paid.
(Authority: 38 U.S.C. 501)
(3) Children's income. Unreimbursed amounts paid by a child for medical expenses of
self, parent, brothers and sisters, to the extent that such amounts exceed 5 percent of the
maximum annual pension rate or rates payable to the child during the 12-month
annualization period in which the medical expenses were paid.
(Authority: 38 U.S.C. 501)
(h) Expenses of last illnesses, burials, and just debts. Expenses specified in paragraphs
(h)(1) and (h)(2) of this section which are paid during the calendar year following that in
which death occurred may be deducted from annual income for the 12-month
annualization period in which they were paid or from annual income for any 12-month
annualization period which begins during the calendar year of death, whichever is to the
claimant's advantage. Otherwise, such expenses are deductible only for the 12-month
annualization period in which they were paid.
(Authority: 38 U.S.C. 501)
(1) Veteran's final expenses. (i) Amounts paid by a spouse before a veteran's death for
expenses of the veteran's last illness will be deducted from the income of the surviving
spouse.
(Authority: 38 U.S.C. 1503(a)(3))
(ii) Amounts paid by a surviving spouse or child of a veteran for the veteran's just debts,
expenses of last illness and burial (to the extent such burial expenses are not reimbursed
under chapter 23 of title 38 U.S.C.) will be deducted from the income of the surviving
spouse or child. The term "just debts" does not include any debt that is secured by real or
personal property.
(Authority: 38 U.S.C. 1503(a)(3))
(2) Spouse or child's final expenses. (i) Amounts paid by a veteran for the expenses of the
last illness and burial of the veteran's deceased spouse or child will be deducted from the
veteran's income.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(ii) Amounts paid by a veteran's spouse or surviving spouse for expenses of the last
illness and burial of the veteran's child will be deducted from the spouse's or surviving
spouse's income.
(Authority: 38 U.S.C. 1503(a)(4))
(i) Educational expenses. Amounts equal to expenses paid by a veteran or surviving
spouse pursuing a course of education or vocational rehabilitation or training, to include
amounts paid for tuition, fees, books, and materials, and in the case of a veteran or
surviving spouse in need of regular aid and attendance, unreimbursed amounts paid for
unusual transportation expenses in connection with the pursuit of such course. Unusual
transportation expenses are those exceeding the reasonable expenses which would have
been incurred by a nondisabled person using an appropriate means of transportation
(public transportation, if reasonably available).
(Authority: 38 U.S.C. 1503(a)(9))
(j) Child's income. In the case of a child, any current work income received during the
year, to the extent that the total amount of such income does not exceed an amount equal
to the sum of the following:
(1) The lowest amount of gross income for which a Federal income tax return must be
filed, as specified in section 6012(a) of the Internal Revenue Code of 1954, by an
individual who is not married (as determined under section 143 of such Code), and is not
a surviving spouse (as defined in section 2(a) of such Code), and is not a head of
household (as defined in section 2(b) of such Code); and
(2) If the child is pursuing a course of postsecondary education or vocational
rehabilitation or training, the amount paid by the child for those educational expenses
including the amount paid for tuition, fees, books, and materials.
(Authority: 38 U.S.C. 1503(a)(10))
(k) Domestic Volunteer Service Act Programs. Payments received under a Domestic
Volunteer Service Act (DVSA) Program (including Volunteers in Service to America
(VISTA), University Year for ACTION (UYA), Foster Grandparent Program (FGP),
Retired Senior Volunteer Program (RSVP), Senior Companion Program) shall be
excluded as provided in paragraphs (k)(1) and (2) of this section:
(1) All DVSA payments received before December 13, 1979, shall be excluded from
determining entitlement to improved pension.
(Authority: 42 U.S.C. 5044(g) (1973))
(2) DVSA payments received after December 12, 1979, shall be excluded from
determining entitlement to improved pension unless the Director of the ACTION Agency
has determined that the value of all DVSA payments, adjusted to reflect the number of
hours served by the volunteer, equals or exceeds the minimum wage then in effect under
the Fair Labor Standards Act of 1938 or the minimum wage of the State where the
volunteer served, whichever is the greater.
(Authority: 42 U.S.C. 5044(g) (1979))
(l) Distributions of funds under 38 U.S.C. 1718. Distributions from the Department of
Veterans Affairs Special Therapeutic and Rehabilitation Activities Fund as a result of
participation in a therapeutic or rehabilitation activity under 38 U.S.C. 1718 and
payments from participation in a program of rehabilitative services provided as part of
the care furnished by a State home and which is approved by VA as conforming to
standards for activities under 38 U.S.C. 1718 shall be considered donations from a public
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
or private relief or welfare organization and shall not be countable as income for pension
purposes.
(Authority: 38 U.S.C. 1718(f))
(m) Hardship exclusion of child's available income. When hardship is established under
the provisions of § 3.23(d)(6) of this part, there shall be excluded from the available
income of any child or children an amount equal to the amount by which annual expenses
necessary for reasonable family maintenance exceed the sum of countable annual income
plus VA pension entitlement computed without consideration of this exclusion. The
amount of this exclusion shall not exceed the available income of any child or children,
and annual expenses necessary for reasonable family maintenance shall not include any
expenses which were considered in determining the available income of the child or
children or the countable annual income of the veteran or surviving spouse.
(Authority: 38 U.S.C. 1521(h), 1541(g))
(n) Survivor benefit annuity. Annuity paid by the Department of Defense under the
authority of section 653, Public Law 100-456 to qualified surviving spouses of veterans
who died prior to November 1, 1953. (September 29, 1988)
(Authority: Sec. 653, Pub. L. 100-456; 102 Stat. 1991)
(o) Agent Orange settlement payments. Payments received by any person in settlement of
the case of In re Agent Orange product liability litigation in the United States District
Court for the Eastern District of New York (M.D.L. No. 381). (January 1, 1989)
(Authority: Pub. L. 101-201, 103 Stat. 1795)
(p) Restitution to individuals of Japanese ancestry. Any payment made as restitution
under Public Law 100-383 to individuals of Japanese ancestry who were interned,
evacuated, or relocated during the period December 7, 1941, through June 30, 1946,
pursuant to any law, Executive order, Presidential proclamation, directive, or other
official action respecting these individuals. (August 10, 1988)
(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905)
(q) Cash surrender value of life insurance. That portion of proceeds from the cash
surrender of a life insurance policy which represents a return of insurance premiums.
(Authority: 38 U.S.C. 501(a))
(r) Income received by American Indian beneficiaries from trust or restricted lands.
Income of up to $ 2,000 per calendar year to an individual Indian from trust lands or
restricted lands as defined in 25 CFR 151.2. (January 1, 1994)
(Authority: Sec. 13736, Pub. L. 103-66; 107 Stat. 633)
(s) Radiation Exposure Compensation Act. Any payment made under Section 6 of the
Radiation Exposure Compensation Act of 1990.
(Authority: 42 U.S.C. 2210 note)
(t) Alaska Native Claims Settlement Act. Any receipt by an individual of cash (including
cash dividends on stock received from a Native Corporation) to the extent that it does not,
in the aggregate, exceed $ 2,000 per individual per annum; stock (including stock issued
or distributed by a Native Corporation as a dividend or distribution on stock); a
partnership interest; land or an interest in land (including land or an interest in land
received from a Native Corporation as a dividend or distribution on stock); and an
interest in a settlement trust. (November 2, 1994)
(Authority: Sec. 506, Pub. L. 103-446)
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the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(u) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are
children of Vietnam veterans. Any allowance paid under the provisions of 38 U.S.C.
chapter 18 to or for an individual who is a child of a Vietnam veteran.
(Authority: 38 U.S.C. 1833(c))
(v) Victims of Crime Act. Amounts received as compensation under the Victims of
Crime Act of 1984 unless the total amount of assistance received from all federally
funded programs is sufficient to fully compensate the claimant for losses suffered as a
result of the crime.
(Authority: 42 U.S.C. 10602(c))
(w) Medicare Prescription Drug Discount Card and Transitional Assistance Program.
The payments received under the Medicare transitional assistance program and any
savings associated with the Medicare prescription drug discount card.
(Authority: 42 U.S.C. 1395w-141(g)(6))
(x) Life insurance proceeds. Lump-sum proceeds of any life insurance policy on a
veteran.
(Authority: 38 U.S.C. 1503(a)(11))
[44 FR 45936, Aug. 6, 1979, as amended at 46 FR 9580, Jan. 29, 1981; 53 FR 23235,
June 21, 1988; 53 FR 24831, June 30, 1988; 56 FR 65847, Dec. 19, 1991; 57 FR 59300,
Dec. 15, 1992; 58 FR 25563, April 27, 1993; 59 FR 35266, July 11, 1994; 59 FR 37696,
July 25, 1994; 59 FR 45976, Sept. 6, 1994; 60 FR 2523, Jan. 10, 1995; 60 FR 18355,
April 11, 1995; 62 FR 5528, Feb. 6, 1997; 62 FR 51274, 51279, Sept. 30, 1997; 67 FR
9209, Feb. 28, 2002; 67 FR 49585, 49587, July 31, 2002; 68 FR 60851, 60852, Oct. 24,
2003; 70 FR 15590, March 28, 2005; 71 FR 44915, August 8, 2006]
[EFFECTIVE DATE NOTE: 67 FR 9209, Feb. 28, 2002, removed the last sentence of
the introductory text of paragraph (h), effective Feb. 28, 2002; 67 FR 49585, 49587, July
31, 2002, revised paragraph (u), effective July 31, 2002; 68 FR 60851, 60852, Oct. 24,
2003, added paragraph (v), effective Oct. 24, 2003.]
§ 3.273 Rate computation.
The commencement date of change in benefit payments based on rate computations
under the provisions of this section will be determined under the provisions of § 3.31 or §
3.660.
(a) Initial award. For the purpose of determining initial entitlement, or for resuming
payments on an award which was previously discontinued, the monthly rate of pension
payable to a beneficiary shall be computed by reducing the beneficiary's applicable
maximum pension rate by the beneficiary's countable income on the effective date of
entitlement and dividing the remainder by 12. Effective June 1, 1983, the provisions of §
3.29(b) apply to this paragraph. Recomputation of rates due to changes in the maximum
annual pension rate or rate of income following the initial date of entitlement are subject
to the provisions of paragraph (b) of this section.
(b) Running awards--(1) Change in maximum annual pension rate. Whenever there is
change in a beneficiary's applicable maximum annual pension rate, the monthly rate of
pension payable shall be computed by reducing the new applicable maximum annual
pension rate by the beneficiary's countable income on the effective date of the change in
the applicable maximum annual pension rate, and dividing the remainder by 12. Effective
June 1, 1983, the provisions of § 3.29(b) apply to this paragraph.
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(2) Change in amount of income. Whenever there is a change in a beneficiary's amount of
countable income the monthly rate of pension payable shall be computed by reducing the
beneficiary's applicable maximum annual pension rate by the beneficiary's new amount
of countable income on the effective date of the change in the amount of income, and
dividing the remainder by 12. Effective June 1, 1983, the provisions of § 3.29(b) apply to
this paragraph.
(c) Nonrecurring income. The amount of any nonrecurring countable income (e.g. an
inheritance) received by a beneficiary shall be added to the beneficiary's annual rate of
income for a 12-month annualization period commencing on the effective date on which
the nonrecurring income is countable.
(Authority: 38 U.S.C. 501)
(d) Recurring and irregular income. The amount of recurring and irregular income
anticipated or received by a beneficiary shall be added to determine the beneficiary's
annual rate of income for a 12-month annualization period commencing at the beginning
of the 12-month annualization, subject to the provisions of § 3.660(a)(2) of this chapter.
[44 FR 45936, Aug. 6, 1979, as amended at 48 FR 34472, July 29, 1983; 57 FR 59300,
Dec. 15, 1992]
38 U.S.C. 501(a).
lxiii
§ 3.274 Relationship of net worth to pension entitlement.
Discussion and Analysis in the Veterans Benefits Manual
(a) Veteran. Pension shall be denied or discontinued when the corpus of the estate of the
veteran, and of the veteran's spouse, are such that under all the circumstances, including
consideration of the annual income of the veteran, the veteran's spouse, and the veteran's
children, it is reasonable that some part of the corpus of such estates be consumed for the
veteran's maintenance.
(Authority: 38 U.S.C. 1522(a))
(b) Increased pension payable to a veteran for a child. Increased pension payable to a
veteran on account of a child shall be denied or discontinued when the corpus of the
estate of the child is such that under all the circumstances including consideration of the
veteran's and spouse's income and the income of the veteran's child or children, it is
reasonable that some part of the corpus of such child's estate be consumed for the child's
maintenance.
(Authority: 38 U.S.C. 1522(b))
(c) Surviving spouse. Pension payable to a surviving spouse shall be denied or
discontinued when the corpus of the estate of the surviving spouse is such that under all
the circumstances, including consideration of the surviving spouse's income and the
income of any child for whom the surviving spouse is receiving pension, it is reasonable
that some part of the corpus of the surviving spouse's estate be consumed for the
surviving spouse's maintenance.
(Authority: 38 U.S.C. 1543(a)(1))
(d) Increased pension payable to a surviving spouse for a child. Increased pension
payable to a surviving spouse on account of a child shall be denied or discontinued when
the corpus of the estate of the child is such that under all the circumstances, including
consideration of the income of the surviving spouse and child and the income of any
other child for whom the surviving spouse is receiving increased pension, it is reasonable
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
that some part of the corpus of the child's estate be consumed for the maintenance of the
child.
(Authority: 38 U.S.C. 1543(a)(2))
(e) Child. Pension payable to a child shall be denied or discontinued when the corpus of
the estate of the child is such that under all the circumstances, including consideration of
the income of the child, the income of any person with whom the child is residing who is
legally responsible for such child's support, and the corpus of estate of such person, it is
reasonable that some part of the corpus of such estates be consumed for the child's
maintenance.
Sections 3.271 to 3.277 appear at 44 FR 45936, Aug. 6, 1979.
(38 U.S.C. 1543(b))
lxiv
§ 3.275 Criteria for evaluating net worth.
Discussion and Analysis in the Veterans Benefits Manual
(a) General. The following rules are for application in determining the corpus of estate or
net worth of a veteran, surviving spouse or child under § 1A3.274.
(b) Definition. The terms corpus of estate and net worth mean the market value, less
mortgages or other encumbrances, of all real and personal property owned by the
claimant, except the claimant's dwelling (single family unit), including a reasonable lot
area, and personal effects suitable to and consistent with the claimant's reasonable mode
of life.
(c) Ownership. See § 3.271(d).
(d) Evaluation. In determining whether some part of the claimant's estate (or combined
estates under § 3.274 (a) and (e)) should be consumed for the claimant's maintenance,
consideration will be given to the amount of the claimant's income together with the
following: Whether the property can be readily converted into cash at no substantial
sacrifice; life expectancy; number of dependents who meet the definition of member of
the family (the definition contained in § 3.250(b)(2) is applicable to the improved pension
program); potential rate of depletion, including unusual medical expenses under the
principles outlined in § 3.272(g) for the claimant and the claimant's dependents.
(e) Educational expenses. There shall be excluded from the corpus of estate or net worth
of a child reasonable amounts for actual or prospective educational or vocational
expenses. The amount so excluded shall not be such as to provide for education or
training beyond age 23.
(Authority: 38 U.S.C. 501)
(f) Agent Orange settlement payments. There shall be excluded from the corpus of the
estate or net worth of a claimant any payment made from the Agent Orange Settlement
Fund or any other fund established pursuant to the settlement in the In re Agent Orange
product liability litigation, M.D.L. No. 381 (E.D.N.Y.). (January 1, 1989)
(Authority: Pub. L. 101-201, 103 Stat. 1795)
(g) Restitution to individuals of Japanese ancestry. There shall be excluded from the
corpus of estate or net worth of a claimant any payment made as restitution under Public
Law 100-383 to individuals of Japanese ancestry who were interned, evacuated, or
relocated during the period December 7, 1941, through June 30, 1946, pursuant to any
law, Executive order, Presidential proclamation, directive, or other official action
respecting these individuals. (August 10, 1988)
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(Authority: Sec. 105, Pub. L. 100-383; 102 Stat. 905)
(h) Radiation Exposure Compensation Act. There shall be excluded from the corpus of
estate or net worth of a claimant any payment made under Section 6 of the Radiation
Exposure Compensation Act of 1990.
(Authority: 42 U.S.C. 2210 note)
(i) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are
children of Vietnam veterans. There shall be excluded from the corpus of estate or net
worth of a claimant any allowance paid under the provisions of 38 U.S.C. chapter 18 to
or for an individual who is a child of a Vietnam veteran.
(Authority: 38 U.S.C. 1833(c))
(j) Victims of Crime Act. There shall be excluded from the corpus of estate or net worth
of a claimant any amounts received as compensation under the Victims of Crime Act of
1984 unless the total amount of assistance received from all federally funded programs is
sufficient to fully compensate the claimant for losses suffered as a result of the crime.
(Authority: 42 U.S.C. 10602(c))
(k) Medicare Prescription Drug Discount Card and Transitional Assistance Program.
There shall be excluded from the corpus of estate or net worth of a claimant payments
received under the Medicare transitional assistance program and any savings associated
with the Medicare prescription drug discount card.
(Authority: 42 U.S.C. 1395w-141(g)(6))
[44 FR 45936, Aug. 6, 1979, as amended at 57 FR 59300, Dec. 15, 1992; 60 FR 2523,
Jan. 10, 1995; 62 FR 51274, 51279, Sept. 30, 1997; 67 FR 49585, 49587, July 31, 2002;
68 FR 60851, 60852, Oct. 24, 2003; 70 FR 15590, March 28, 2005]
[EFFECTIVE DATE NOTE: 67 FR 49585, 49587, July 31, 2002, revised paragraph (i),
effective July 31, 2002; 68 FR 60851, 60852, Oct. 24, 2003, added paragraph (j),
effective Oct. 24, 2003.]
§ 3.276 Certain transfers or waivers disregarded.
(a) Waiver of receipt of income. Potential income, not excludable under § 3.272 and
whose receipt has been waived by an individual, shall be included as countable income of
that individual for Department of Veterans Affairs pension purposes.
(b) Transfer of assets. For pension purposes, a gift of property made by an individual to a
relative residing in the same household shall not be recognized as reducing the corpus of
the grantor's estate. A sale of property to such a relative shall not be recognized as
reducing the corpus of the seller's estate if the purchase price, or other consideration for
the sale, is so low as to be tantamount to a gift. A gift of property to someone other than a
relative residing in the grantor's household will not be recognized as reducing the corpus
of the grantor's estate unless it is clear that the grantor has relinquished all rights of
ownership, including the right of control of the property.
Sections 3.271 to 3.277 appear at 44 FR 45936, Aug. 6, 1979.
(38 U.S.C. 501)
lxv
§ 3.277 Eligibility reporting requirements.
Discussion and Analysis in the Veterans Benefits Manual
© 2006 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved. Use of this product is subject to
the restrictions and terms and conditions of the Matthew Bender Master Agreement.
(a) Evidence of entitlement. As a condition of granting or continuing pension, the
Department of Veterans Affairs may require from any person who is an applicant for or a
recipient of pension such information, proofs, and evidence as is necessary to determine
the annual income and the value of the corpus of the estate of such person, and of any
spouse or child from whom the person is receiving or is to receive increased pension
(such child is hereinafter in this section referred to as a dependent child), and, in the case
of a child applying for or in receipt of pension in his or her own behalf (hereinafter in this
section referred to as a surviving child), of any person with whom such child is residing
who is legally responsible for such child's support.
(b) Obligation to report changes in factors affecting entitlement. Any individual who has
applied for or receives pension must promptly notify the Secretary of any change
affecting entitlement in any of the following:
(1) Income;
(2) Net worth or corpus of estate;
(3) Marital status;
(4) Nursing home patient status;
(5) School enrollment status of a child 18 years of age or older; or
(6) Any other factor that affects entitlement to benefits under the provisions of this Part.
(c) Eligibility verification reports. (1) For purposes of this section the term eligibility
verification report means a form prescribed by the Secretary that is used to request
income, net worth, dependency status, and any other information necessary to determine
or verify entitlement to pension.
(2) The Secretary shall require an eligibility verification report under the following
circumstances:
(i) If the Social Security Administration has not verified the beneficiary's Social Security
number and, if the beneficiary is married, his or her spouse's Social Security number;
(ii) If there is reason to believe that the beneficiary or his or her spouse may have
received income other than Social Security during the current or previous calendar year;
or
(iii) If the Secretary determines that an eligibility verification report is necessary to
preserve program integrity.