Aid & Attendance Handbook for Professionals & Consultants
And Other Veterans Long Term Care Benefits
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The information in this chapter was taken from federal regulations 38 CFR pertaining to VA aid and attendance pension benefit (improved aid and attendance pension benefit) and compensation issues. We only provide excerpts for subjects directly relating to the claims process. This chapter also contains extracts from VA manual 21-1 pertaining to issues dealing with the claims process. This material was gleaned from about 6,000 pages of manuals and regulations. The chapter is divided into 12 sections listed below.
Charging a Fee
The Initial Claims Process
Determining Veteran Status for Benefits
Verification of Facts and Relationships
Rating for Income and Disability
Income, Asset Tests and Unreimbursed Medical Costs
Calculation of Benefits and General Statements
Income
Income Exclusions and Deductions
Unreimbursed Medical Costs
Net Worth
EVRs -- Eligibility Verification Reports
Accrued Benefits
Dovetailing with Medicaid
VA Power of Attorney and Fiduciary Program
Special Benefits
HISA Handbook
Charging a FeeFederal code prohibits charging a fee in conjunction with filing a claim. Some practitioners feel that providing advice to help speed up the process or make sure all the unreimbursed medical expenses are counted does not constitute charging a fee if that advice is given in the context of a general consultation for solving long term care problems. These practitioners will typically make notation that such advice was given free of charge. Other practitioners may devote a separate appointment entirely free of charge to providing claims advice to clients whom they see on a regular basis for other issues. Some financial planners may offer advice in conjunction with a regular retirement planning appointment. No fee is annotated for this advice.This stance towards charging no fee for advice probably has more credibility if the attorney or agent sends his or her client to a local veterans organization to make application.-CITE-
38 USC Sec. 5901 01/03/05-EXPCITE-
TITLE 38 - VETERANS' BENEFITS
PART IV - GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 59 - AGENTS AND ATTORNEYS-HEAD-
Sec. 5901. Prohibition against acting as claims agent or attorney-STATUTE-
Except as provided by section 500 of title 5, no individual may act as an agent or attorney in the preparation, presentation, or prosecution of any claim under laws administered by the Secretary
unless such individual has been recognized for such purposes by the Secretary.-CITE-
38 USC Sec. 5903 01/03/05-EXPCITE-
TITLE 38 - VETERANS' BENEFITS
PART IV - GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 59 - AGENTS AND ATTORNEYS-HEAD-
Sec. 5903. Recognition with respect to particular claims-STATUTE-
The Secretary may recognize any individual for the preparation, presentation, and prosecution of any particular claim for benefits under any of the laws administered by the Secretary if -
(1) such individual has certified to the Secretary that no fee or compensation of any nature will be charged any individual for services rendered in connection with such claim; and
(2) such individual has filed with the Secretary a power of attorney, executed in such manner and in such form as the Secretary may prescribe.-EXPCITE-
TITLE 38 - VETERANS' BENEFITS
PART IV - GENERAL ADMINISTRATIVE PROVISIONS
CHAPTER 59 - AGENTS AND ATTORNEYS-HEAD-
Sec. 5905. Penalty for certain acts-STATUTE-
Whoever (1) directly or indirectly solicits, contracts for, charges, or receives, or attempts to solicit, contract for, charge, or receive, any fee or compensation except as provided in sections 5904 or 1984 of this title, or (2) wrongfully withholds from any claimant or beneficiary any part of a benefit or claim allowed and due to the claimant or beneficiary, shall be fined as provided in title 18, or imprisoned not more than one year, or both.Excerpt from United States Court of Appeals for the Federal Circuit, 02-7395, CARPENTER, CHARTERED, Petitioner, v. SECRETARY OF VETERANS AFFAIRS,
Respondent.
... For more than 120 years, attorney fees for assisting veterans and their survivors in prosecuting benefit claims were capped at $10. See 38 U.S.C. 3404(c) (1988); Walters, 473 U.S. at 308, 319. Congress purposely limited the role of lawyers in the veterans’ benefits process in order to protect claimants’ benefits from being diverted to lawyers and to avoid making the claims process adversarial in nature, particularly in light of the highly effective representation provided for free by veterans’ service organizations. Walters, 473 U.S. at 322; S. Rep. No. 97-466, at 49 (1982).In 1988, as part of the statute that provided for judicial review of administrative decisions on veterans’ claims, Congress repealed the $10 fee cap and allowed attorneys to charge reasonable fees to represent claimants, but only under certain circumstances. See Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988). The 1988 Act permitted attorneys to charge fees for services rendered after a claim was decided by a regional office of the Department of Veterans Affairs (“DVA”) and the Board of Veterans’ Appeals (“BVA”) issued a final decision on the claim. For services rendered prior to that point in the process, the Act prohibited attorneys from charging claimants for representation. See 38 U.S.C. § 5904(c)(1). As was the case before the 1988 Act, however, the DVA continued to permit attorneys and non-attorney agents to receive fees or salaries from veterans’ service organizations or other disinterested third parties for prosecuting claims, even in circumstances in which an attorney could not receive a fee from the claimant. See 38 C.F.R. § 20.609(d) (1992). The regulation addressing disinterested third-party fee payers provides that “[a]n attorney-at-law or agent may receive a fee or salary from an organization, governmental entity, or other disinterested third party for representation of a claimant or appellant even though the conditions set forth in paragraph (c) [regarding fees for services after a final decision by the BVA] have not been
met.” Id.In December 1997 the DVA proposed to amend the disinterested third-party payer regulation. Board of Veterans’ Appeals: Rules of Practice—Attorney Fee Matters, 62 Fed. Reg. 64,790 (Dec. 9, 1997). After receiving public comment on its proposed amendment, the DVA published the final version of the rule on May 23, 2002. Board of Veterans’ Appeals: Rules of Practice—Attorney Fee Matters, 67 Fed. Reg. 36,102 (May 23, 2002). The new regulation continued to permit an attorney or agent to receive a salary or fee from a disinterested third party, but it contained three additional provisions with respect to the payment of fees from third parties for work done prior to the final decision of
the BVA. First, it prohibited an attorney or agent from charging a fee contingent, in whole or in part, upon whether the matter is resolved favorably to the claimant or appellant. Second, it established a rebuttable presumption that the spouse, child, or parent of the claimant, or a person residing with the claimant, is not a disinterested third party. Third, it required that all agreements for payment by a third party be in writing, be filed with the Board, and include a certification by the attorney or agent that “no agreement, oral or otherwise, exists under which the claimant or appellant will provide anything of value to the third-party payer . . . in return for payment of [the attorney’s] fee or salary, including, but not limited to, reimbursement of any fees paid.” 38 C.F.R. § 20.609(d)(2); 67 Fed. Reg. at 36,104....
The Initial Claims ProcessSec. 3.400 General. (Effective date) Except as otherwise provided, the effective date of an evaluation
and award of aid and attendance pension benefit, compensation or dependency and indemnity
compensation based on an original claim, a claim reopened after final
disallowance, or a claim for increase will be the date of receipt of the
claim or the date entitlement arose, whichever is the later.§3.31 Commencement of the period of payment.
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, aid and attendance pension benefit, 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.
An incompetent claimant may appoint a POA representative for the purpose of attempting to establish his/her competency.DURABLE POWER OF ATTORNEY
THE DEPARTMENT OF VETERANS AFFAIRS (DVA) WILL NOT ACCEPT DURABLE POWER OF ATTORNEY SIGNATURES IN LIEU OF THE SIGNATURE AND/OR MARK OF THE CLAIMAINT. THE DVA DOES NOT ACKNOWLEDGE GENERAL POWER OF ATTORNEYS’FOR DVA PURPOSES. THE DVA WILL RETURN THE APPLICATION FOR SIGNATURE AND/OR MARK OF CLAIMAINT. See section "VA Power of Attorney and Fiduciary Program" for details of application process and power of attorney or for incompetent applicants.§3.1 Definitions.(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 aid and attendance pension benefit 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
(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.§3.3 Aid and attendance pension benefit.(3) Improved aid and attendance pension benefit; 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 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) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct; and
(Authority: 38 U.S.C. 1502(a)) (vi) Meets the net worth requirements under §3.274 and does not have an annual income in excess of the applicable maximum annual aid and attendance pension benefit rate specified in §3.23.(b) Aid and attendance pension benefit for survivors—
(4) Improved death aid and attendance pension benefit, 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 aid and attendance pension benefit rate specified in §§3.23 and 3.24.
(Authority: 38 U.S.C. 1541 and 1542).
§3.4 Compensation.(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.
(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) §3.5 Dependency and indemnity compensation.(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 by reason of such death for death aid and attendance pension benefit 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 aid and attendance pension benefit 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) Surviving spouses’ rate. (1) When death occurred on or after January 1, 1993, the monthly rate of dependency and indemnity compensation for a surviving spouse shall be the amount set forth in 38 U.S.C. 1311(a)(1). This rate shall be increased by the amount set forth in 38 U.S.C. 1311(a)(2) in the case of the death of a veteran who at the time of death was in receipt of or was entitled to receive (or but for the receipt of retired pay or retirement pay was entitled to receive) compensation for a service-connected disability that was evaluated as totally disabling for a continuous period of at least eight years immediately preceding death. In determining the eight year period, only periods during which the veteran was married to the surviving spouse shall be considered. The resulting rate is subject toincreaseasprovidedinparagraphs(e) (3) and (4) of this section.(2) The monthly rate of dependency and indemnity compensation for a surviving spouse when the death of the veteran occurred prior to January 1, 1993, is based on the “pay grade” of the veteran, unless the formula provided in paragraph (e)(1) of this section results in a greater monetary benefit. The Secretary of the concerned service department will certify the “pay grade” of the veteran and the certification will be binding on the Department of Veterans Affairs. The resulting rate is subject to increase as provided in paragraphs (e) (3) and (4) of this section.
(Authority: 38 U.S.C. 1311(a) and 1321) (3) If there is a surviving spouse with one or more children under the age of 18 (including a child not in the surviving spouse's actual or constructive custody and a child who is in active military, air, or naval service), the total amount payable shall be increased by the amount set forth in 38 U.S.C. 1311(b) for each child.(4) If the surviving spouse is determined to be in need of regular aid and attendance under the criteria in §3.352 or is a patient in a nursing home, the total amount payable shall be increased by the amount set forth in 38 U.S.C. 1311(c). If the surviving spouse does not qualify for the regular aid and attendance allowance but is housebound under the criteria in §3.351(f), the total amount payable shall be increased by the amount set forth in 38 U.S.C. 1311(d).
§3.160 Status of claims.
The following definitions are applicable to claims for aid and attendance pension benefit, 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 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]
§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]
§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).
(Authority: 38 U.S.C. 5319)
[58 FR 32445, June 10, 1993]§3.150 Forms to be furnished.(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 aid and attendance pension benefit, 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.
Cross Reference:
Extension of time limit. See §3.109(b).
[26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965]
§3.151 Claims for disability benefits.(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 aid and attendance pension benefit; and a claim by a veteran for aid and attendance pension benefit may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.(b) Retroactive disability aid and attendance pension benefit claims. Where disability aid and attendance pension benefit entitlement is established based on a claim received by VA on or after October 1, 1984, the aid and attendance pension benefit award may not be effective prior to the date of receipt of the aid and attendance pension benefit 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 aid and attendance pension benefit, 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 aid and attendance pension benefit award are contained in §3.400(b) of this part.
Cross Reference:
Informal claims. See §3.155(b).
(Authority: 38 U.S.C 5110(b)(3))
[50 FR 25981, June 24, 1985]§3.152 Claims for death benefits.(a) A specific claim in the form prescribed by the Secretary (or jointly with the Secretary of Health and Human Services, 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. 5101(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 aid and attendance pension benefit and accrued benefits, and a claim by a surviving spouse or child for death aid and attendance pension benefit 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.
(Authority: 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 aid and attendance pension benefit, 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 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.
(Authority: 38 U.S.C 501)
Cross References:
State Department as agent of Department of Veterans Affairs. See §3.108. Change in status of dependents. See §3.651.
[50 FR 25981, June 24, 1985]Forfeiture§3.900 General.(a) Forfeiture of benefits based on one period of service does not affect entitlement to benefits based on a period of service beginning after the offense causing the prior forfeiture.
(b)(1) Except as provided in paragraph (b)(2) of this section, any offense committed prior to January 1, 1959, may cause a forfeiture and any forfeiture in effect prior to January 1, 1959, will continue to be a bar on and after January 1, 1959.(Authority: Section 3, Pub. L. 85–857) (2) Effective September 2, 1959, forfeiture of benefits may not be declared except under the circumstances set forth in §3.901(d), §3.902(d), or §3.903. Forfeitures declared before September 2, 1959, will continue to be a bar on and after that date. (Authority: 38 U.S.C. 6103(d) and 6105) (c) Aid and attendance pension benefit or compensation payments are not subject to forfeiture because of violation of hospital rules.(d) When the person primarily entitled has forfeited his or her rights by reason of fraud or a treasonable act determination as to the rights of any dependents of record to benefits under §3.901(c) or §3.902(c) may be made upon receipt of an application. (Authority: 38 U.S.C. 6103(b) and 38 U.S.C. 6104(b)) [26 FR 1607, Feb. 24, 1961, as amended at 27 FR 8590, Aug. 28, 1962; 53 FR 17934, May 19, 1988]§3.901 Fraud.(a) Definition. An act committed when a person knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by the Department of Veterans Affairs (except laws relating to insurance benefits).(b) Effect on claim. For the purposes of paragraph (d) of this section, any person who commits fraud forfeits all rights to benefits under all laws administered by the Department of Veterans Affairs other than laws relating to insurance benefits.(c) Forfeiture before September 2, 1959. Where forfeiture for fraud was declared before September 2, 1959, in the case of a veteran entitled to disability compensation, the compensation payable except for the forfeiture may be paid to the veteran's spouse, children and parents provided the decision to apportion was authorized prior to September 2, 1959. The total amount payable will be the lesser of these amounts: (Authority: 38 U.S.C. 6103) (1) Service-connected death benefit payable.(2) Amount of compensation payable but for the forfeiture.
No benefits are payable to any person who participated in the fraud causing the forfeiture.(d) Forfeiture after September 1, 1959. After September 1, 1959, forfeiture by reason of fraud may be declared only(1) Where the person was not residing or domiciled in a State as defined in §3.1(i) at the time of commission of the fraudulent act; or(2) Where the person ceased to be a resident of or domiciled in a State as defined in §3.1(i) before expiration of the period during which criminal prosecution could be instituted; or(3) The fraudulent act was committed in the Philippine Islands.
Where the veteran's rights have been forfeited, no part of his or her benefit may be paid to his or her dependents. (Authority: 38 U.S.C. 6103) (e) Remission of forfeitures imposed prior to September 2, 1959. Where it is determined that a forfeiture for fraud which was imposed prior to September 2, 1959, would not be imposed under the law and regulation in effect on and after September 2, 1959, the forfeiture shall be remitted effective June 30, 1972. Benefits to which a person becomes eligible by virtue of the remission, upon application therefor, shall be awarded effective as provided by §3.114.
(Authority: 38 U.S.C. 6103) [27 FR 8590, Aug. 28, 1962, as amended at 37 FR 19134, Sept. 19, 1972; 53 FR 17934, May 19, 1988]
Determining Veteran Status for Benefits
§3.2 Periods of war.
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 aid and attendance pension benefit entitlement 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.
(Authority: 38 U.S.C. 101(29))
(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.
(Authority: 38 U.S.C. 101(33))
[26 FR 1563, Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967; 36 FR 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26, 1975; 44 FR 45931, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR 35422, July 1, 1997]]
§3.6 Duty Periods.
(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
(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))
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 57179, Nov. 14, 1995; 61 FR 11731, Mar. 22, 1996; 66 FR 48560, Sept. 21, 2001; 67 FR 49585, July 31, 2002]
§3.7 Individuals and groups considered to have performed active military, naval, or air service.
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.
(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 aid and attendance pension benefitable 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, 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.
(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 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.
(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 TWA's Contract With the Air Transport Command During the Period December 14, 1941, through August 14, 1945.
(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.
(Authority: Sec. 401, Pub. L. 95–202, 91 Stat. 1449)
(Authority: Sec. 401, Pub. L. 95–202, 91 Stat. 1450)
Cross Reference:
Office of Workers’ Compensation Programs. See §3.708.
[26 FR 1565, Feb. 24, 1961]
Editorial Note:
For Federal Register citations affecting §3.7, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.
M21-1MR - Adjudication Procedures Manual Rewrite
A Reservist may meet the criteria for establishing veteran status for compensation and aid and attendance pension benefit purposes if he/she dies or becomes disabled from a disease or injury incurred or aggravated in the line of duty during a period of active duty for training, or an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred while the person was proceeding directly to, or returning directly from, a period of active duty for training dies or becomes disabled from an injury incurred or aggravated in the line of duty during a period of inactive duty for training, or acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training or while the person was proceeding directly to, or returning directly from, a period of active duty for training, or performs full-time duty in the Armed Forces other than active duty for training.
Since the 1960’s, the Reserve components have had several programs in which members serve full-time in operational or support positions but are never formally called to active duty. This type of service, whether it lasts one day or three years, is classified by the service departments as “active duty for training (ACDUTRA).” Such programs include the Active Guard Reserve (AGR), and Active Duty Support (ADS) Program. The term “full-time duty in the uniformed services” is not defined in 38 U.S.C. or 38 CFR. However, an opinion issued by the General Counsel on November 9, 1988, makes it clear that despite the military’s ACDUTRA classification, VA has the authority to declare certain types of service performed by Reservists to be “active duty” for the purposes of establishing eligibility for VA benefits, and service in the Reserves meets the definition of active duty if the facts of record establish that the service was full-time, and for operational or support purposes, as opposed to training.
Verification of Facts and Relationships
§3.50 Spouse and surviving spouse.
(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.
[62 FR 5529, Feb. 6, 1997]
§3.52 Marriages deemed valid.
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.
(Authority: 38 U.S.C. 103(a))
Cross Reference:
Definition, marriage. See §3.205(c).
[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]
§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, as amended at 59 FR 32659, June 24, 1994]
§3.54 Marriage dates.
A surviving spouse may qualify for aid and attendance pension benefit, 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) Aid and attendance pension benefit. Death aid and attendance pension benefit 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))
(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)
(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.
(Authority: 38 U.S.C. 103(b))
[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 3392, Jan. 21, 2000]
§3.60 Definition of “living with”.
For the purposes of determining entitlement to aid and attendance pension benefit 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.
(Authority: 38 U.S.C. 1521(h)(2))
[44 FR 45935, Aug. 6, 1979]
§3.203 Service records as evidence of service and character of discharge.
(a) Evidence submitted by a claimant. For the purpose of establishing entitlement to aid and attendance pension benefit, compensation, dependency and indemnity compensation or burial benefits the 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 aid and attendance pension benefit 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 aid and attendance pension benefit 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 aid and attendance pension benefit 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 aid and attendance pension benefit 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 aid and attendance pension benefit 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; 58 FR 42623, Aug. 10, 1993; 66 FR 19858, Apr. 18, 2001]
§3.204 Evidence of dependents and age.
(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.)
(Authority: 38 U.S.C. 501)
[26 FR 1572, Feb. 24, 1961, as amended at 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 59 FR 46338, Sept. 8, 1994; 61 FR 56626, Nov. 4, 1996; 66 FR 56614, Nov. 9, 2001]§3.205 Marriage.
(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.
(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.
(Authority: 38 U.S.C. 501)
Cross References:
Marriages deemed valid. See §3.52. Definitions; marriage. See §3.1(j). Evidence of dependents and age. See §3.204.
[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; 62 FR 5529, Feb. 6, 1997]
§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:
(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.
Cross Reference:
Evidence of dependents and age. See §3.204.
[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]
§3.207 Void or annulled marriage.
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.
Cross References:
Effective dates, void or annulled marriage. See §3.400 (u) and (v). Evidence of dependents and age. See §3.204.
[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]
§3.208 Claims based on attained age.
In claims for aid and attendance pension benefit 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.Cross Reference:
Evidence of dependents and age. See §3.204.
[40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987]
§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 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.
(Authority: 38 U.S.C. 501)
Cross Reference:
Evidence of dependents and age. See §3.204.
[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]
§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.
Cross Reference:
M21-1MR - Adjudication Procedures Manual Rewrite
Applicant certificationThe claimant’s statement should be …
if submitting records “I hereby certify that the following (or attached) is a true transcript of my records pertaining to this case.”
does not have records to submit “I hereby certify that the information given above is true and correct to the best of my knowledge and belief.”
a. Claimant’s Interest in Disavowing a Common Law Marriage
A claimant and another person of the opposite sex may live together in a jurisdiction recognizing common law marriages under circumstances meeting requirements for a common law marriage, and choose not to recognize or report the marriage because the spouse has income or net worth that would adversely affect entitlement to benefits. Important: The marriage must be established if it, in fact, exists.The claimant’s statement that there is no agreement to be married is one piece of evidence to consider in determining whether a common law marriage exists. However, the statement may be contradicted by other evidence, such as evidence that the claimant held himself or herself out publicly as the spouse of the other person.To determine whether a common law marriage is in force when disavowed by the claimant request a field examination, if necessary initiate complete development if evidence is received that a common law marriage exists, and establishing the marriage would adversely affect entitlement to benefits, and evaluate the evidence received. Prepare a two-signature administrative decision using the format in M21-1MR, Part III, Subpart v, 1.A.2 and referring to the information in M21-1MR, Part III, Subpart iii, 5.C.17 to recognize or reject a common law marriage on the merits. References: For more information on the claimant’s duty to report relationships, see M21-1MR, Part III, Subpart iii, 5.A.1.j, and the distinction between a common law marriage and the inferred remarriage of a surviving spouse, see M21-1MR, Part III, Subpart iii, 5.F.30.c.A deemed valid marriage is a marriage that is valid for VA purposes even though a legal marriage does not exist under state law. Typically, there is no legal marriage under state law because of the existence of some impediment to the marriage, such as a prior undissolved marriage. Important: A marriage cannot be deemed valid if the impediment is the claimant’s inability to prove the dissolution of his/her own prior marriage. A deemed valid marriage can exist only in connection with a claim for death benefits. It is not possible to “deem valid” the marriage of a live veteran.
Rating Income and Disability
§3.31 Commencement of the period of payment.
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, aid and attendance pension benefit, 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.
§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 aid and attendance pension benefit payable to a beneficiary shall be computed by reducing the beneficiary's applicable maximum aid and attendance pension benefit 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 aid and attendance pension benefit 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 aid and attendance pension benefit rate. Whenever there is change in a beneficiary's applicable maximum annual aid and attendance pension benefit rate, the monthly rate of aid and attendance pension benefit payable shall be computed by reducing the new applicable maximum annual aid and attendance pension benefit rate by the beneficiary's countable income on the effective date of the change in the applicable maximum annual aid and attendance pension benefit rate, and dividing the remainder by 12. Effective June 1, 1983, the provisions of §3.29(b) apply to this paragraph.
(2) Change in amount of income. Whenever there is a change in a beneficiary's amount of countable income the monthly rate of aid and attendance pension benefit payable shall be computed by reducing the beneficiary's applicable maximum annual aid and attendance pension benefit 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]
§3.352 Criteria for determining need for aid and attendance and “permanently bedridden.”
(a) Basic criteria for regular aid and attendance and permanently bedridden. The following will be accorded consideration in determining the need for regular aid and attendance
(§3.351(c)(3): inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.
“Bedridden” will be a proper basis for the determination. For the purpose of this paragraph “bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.
It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others.
(b) Basic criteria for the higher level aid and attendance allowance. (1) A veteran is entitled to the higher level aid and attendance allowance authorized by §3.350(h) in lieu of the regular aid and attendance allowance when all of the following conditions are met:
(i) The veteran is entitled to the compensation authorized under 38 U.S.C. 1114(o), or the maximum rate of compensation authorized under 38 U.S.C. 1114(p).
(ii) The veteran meets the requirements for entitlement to the regular aid and attendance allowance in paragraph (a) of this section.
(iii) The veteran needs a “higher level of care” (as defined in paragraph (b)(2) of this section) than is required to establish entitlement to the regular aid and attendance allowance, and in the absence of the provision of such higher level of care the veteran would require hospitalization, nursing home care, or other residential institutional care.
(2) Need for a higher level of care shall be considered to be need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or political subdivision thereof.
(3) The term “under the regular supervision of a licensed health-care professional”, as used in paragraph (b)(2) of this section, means that an unlicensed person performing personal health-care services is following a regimen of personal health-care services prescribed by a health-care professional, and that the health-care professional consults with the unlicensed person providing the health-care services at least once each month to monitor the prescribed regimen. The consultation need not be in person; a telephone call will suffice.
(4) A person performing personal health-care services who is a relative or other member of the veteran's household is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional.
(5) The provisions of paragraph (b) of this section are to be strictly construed. The higher level aid-and-attendance allowance is to be granted only when the veteran's need is clearly established and the amount of services required by the veteran on a daily basis is substantial.
(Authority: 38 U.S.C. 501, 1114(r)(2))
(c) Attendance by relative. The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.
[41 FR 29680, July 19, 1976, as amended at 44 FR 22720, Apr. 17, 1979; 60 FR 27409, May 24, 1995]
§3.351 Housebound
(d) Housebound, or permanent and total plus 60 percent; disability aid and attendance pension benefit. The rate of aid and attendance pension benefit payable to a veteran who is entitled to aid and attendance pension benefit under 38 U.S.C. 1521 and who is not in need of regular aid and attendance shall be as prescribed in 38 U.S.C. 1521(e) if, in addition to having a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities (not including ratings based upon unemployability under §4.17 of this chapter) the veteran:
(1) Has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or
(2) Is “permanently housebound” by reason of disability or disabilities. This requirement is met when the veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.
(Authority: 38 U.S.C. 1502(c), 1521(e))
(e) Housebound; dependency and indemnity compensation. The monthly rate of dependency and indemnity compensation payable to a surviving spouse who does not qualify for increased dependency and indemnity compensation under 38 U.S.C. 1311(c) based on need for regular aid and attendance shall be increased by the amount specified in 38 U.S.C. 1311(d) if the surviving spouse is permanently housebound by reason of disability. The “permanently housebound” requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime.
(Authority: 38 U.S.C. 1311(d))
(f) Housebound; improved aid and attendance pension benefit; death. The annual rate of death aid and attendance pension benefit payable to a surviving spouse who does not qualify for an annual rate of death aid and attendance pension benefit payable under §3.23(a)(6) based on need for aid and attendance shall be as set forth in §3.23(a)(7) if the surviving spouse is permanently housebound by reason of disability. The “permanently housebound” requirement is met when the surviving spouse is substantially confined to his or her home (ward or clinical areas, if institutionalized) or immediate premises by reason of disability or disabilities which it is reasonably certain will remain throughout the surviving spouse's lifetime.
(Authority: 38 U.S.C. 1541(e))
[44 FR 45939, Aug. 6, 1979]
§3.353 Determinations of incompetency and competency.
(a) Definition of mental incompetency. A mentally incompetent person is one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation.
(b) Authority. (1) Rating agencies have sole authority to make official determinations of competency and incompetency for purposes of: insurance (38 U.S.C. 1922), the discontinuance and payment of amounts withheld because of an estate that equals or exceeds the amount specified in §3.557(b)(4), and, subject to §13.56 of this chapter, disbursement of benefits. Such determinations are final and binding on field stations for these purposes.
(2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager will develop information as to the beneficiary's social, economic and industrial adjustment; appoint (or recommend appointment of) a fiduciary as provided in §13.55 of this chapter; select a method of disbursing payment as provided in §13.56 of this chapter, or in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in §13.57 of this chapter; and authorize disbursement of the benefit.
(3) If in the course of fulfilling the responsibilities assigned in paragraph (b)(2) the Veterans Service Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the rating agency with a statement as to his or her findings. The rating agency will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in §3.327(a) if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs.
(c) Medical opinion. Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the rating agency will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities. Considerations of medical opinions will be in accordance with the principles in paragraph (a) of this section. Determinations relative to incompetency should be based upon all evidence of record and there should be a consistent relationship between the percentage of disability, facts relating to commitment or hospitalization and the holding of incompetency.
(d) Presumption in favor of competency. Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency (see §3.102 on reasonable doubt).
(e) Due process. Whenever it is proposed to make an incompetency determination, the beneficiary will be notified of the proposed action and of the right to a hearing as provided in §3.103. Such notice is not necessary if the beneficiary has been declared incompetent by a court of competent jurisdiction or if a guardian has been appointed for the beneficiary based upon a court finding of incompetency. If a hearing is requested it must be held prior to a rating decision of incompetency. Failure or refusal of the beneficiary after proper notice to request or cooperate in such a hearing will not preclude a rating decision based on the evidence of record.
(Authority: 38 U.S.C. 501(a))
[36 FR 19020, Sept. 25, 1971, and 40 FR 1241, Jan. 7, 1975, as amended at 42 FR 2069, Jan. 10, 1977; 58 FR 37856, July 14, 1993; 60 FR 55792, Nov. 3, 1995; 66 FR 48560, Sept. 21, 2001; 67 FR 46868, July 17, 2002]
§3.354 Determinations of insanity.
(a) Definition of insanity. An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.
(b) Insanity causing discharge. When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge or resignation (38 U.S.C. 5303(b)), it will base its decision on all the evidence procurable relating to the period involved, and apply the definition in paragraph (a) of this section.
[26 FR 1589, Feb. 24, 1961]
§3.355 Testamentary capacity for insurance purposes.
When cases are referred to a rating agency involving the testamentary capacity of the insured to execute designations or changes of beneficiary, or designations or changes of option, the following considerations will apply:
(a) Testamentary capacity is that degree of mental capacity necessary to enable a person to perform a testamentary act. This, in general, requires that the testator reasonably comprehend the nature and significance of his act, that is, the subject and extent of his disposition, recognition of the object of his bounty, and appreciation of the consequence of his act, uninfluenced by any material delusion as to the property or persons involved.
(b) Due consideration should be given to all facts of record, with emphasis being placed on those facts bearing upon the mental condition of the testator (insured) at the time or nearest the time he executed the designation or change. In this connection, consideration should be given to lay as well as medical evidence.
(c) Lack of testamentary capacity should not be confused with insanity or mental incompetence. An insane person might have a lucid interval during which he would possess testamentary capacity. On the other hand, a sane person might suffer a temporary mental aberration during which he would not possess testamentary capacity. There is a general but rebuttable presumption that every testator possesses testamentary capacity. Therefore, reasonable doubts should be resolved in favor of testamentary capacity.
[26 FR 1590, Feb. 24, 1961]
§3.701 Elections of aid and attendance pension benefit or compensation.
(a) General. Except as otherwise provided, a person entitled to receive aid and attendance pension benefit or compensation under more than one law or section of a law administered by the Department of Veterans Affairs may elect to receive whichever benefit, regardless of whether it is the greater or lesser benefit, even though the election reduces the benefits payable to his or her dependents. Such person may at any time elect or reelect the other benefit. An election by a veteran controls the rights of all dependents in that case. An election by a surviving spouse controls the claims of all children including children over 18 and children not in the custody of the surviving spouse. The election of improved aid and attendance pension benefit by a surviving spouse, however, shall not prejudice the rights of any child receiving an apportionment on December 31, 1978. Termination of a marriage or marital relationship which had been the reason for terminating an award of section 306 or old-law aid and attendance pension benefit does not restore to the surviving spouse the right to receive section 306 or old-law aid and attendance pension benefit. The claimant's entitlement, if otherwise established, is under the current provisions of 38 U.S.C. 1541.
(Authority: 38 U.S.C. 501)
(b) Form of election. A statement which meets the requirements of an informal claim may be accepted as an election.
(c) Change from one law to another. Except as otherwise provided, where payments of aid and attendance pension benefit or compensation are being made to a person under one law, the right to receive benefits under another law being in susaid and attendance pension benefit, and a higher rate of aid and attendance pension benefit or compensation becomes payable under the other law, benefits at the higher rate will not be paid for any date prior to the date of receipt of an election.
[26 FR 1602, Feb. 24, 1961, as amended at 36 FR 12618, July 2, 1971; 44 FR 45943, Aug. 6, 1979]
§3.702 Dependency and indemnity compensation.
(a) Right to elect. A person who is eligible for death compensation and who has entitlement to dependency and indemnity compensation pursuant to the provisions of §3.5(b)(2) or (3) may receive dependency and indemnity compensation upon the filing of a claim. The claim of such a person for service-connected death benefits shall be considered a claim for dependency and indemnity compensation subject to confirmation by the claimant. The effective date of payment is controlled by the provisions of §3.400(c)(4).
(b) Effect on child's entitlement. Where a surviving spouse is entitled to death compensation, the amount of which is based in part on the existence of a child who has attained the age of 18 years, and elects to receive dependency and indemnity compensation, the independent award of dependency and indemnity compensation to which the child is entitled will be awarded to or for the child without separate election by or for the child. Should such a surviving spouse not elect to receive dependency and indemnity compensation, the independent dependency and indemnity compensation to which a child who has attained 18 years of age is entitled, may be awarded upon application by or for the child. The effective date of award in these situations will be in accordance with §3.400(c)(4)(ii).
(c) Limitation. A claim for dependency and indemnity compensation may not be filed or withdrawn after the death of the surviving spouse, child, or parent.
(d) Finality of election.(1) Except as noted in paragraph (d)(2), an election to receive dependency and indemnity compensation is final and the claimant may not thereafter reelect death aid and attendance pension benefit or compensation in that case. An election is final when the payee (or the payee's fiduciary) has negotiated one check for this benefit or when the payee dies after filing an election but prior to negotiation of a check.
(2) Notwithstanding the provisions of paragraph (d)(1), effective November 2, 1994, a surviving spouse who is receiving dependency and indemnity compensation may elect to receive death aid and attendance pension benefit instead of such compensation.
(Authority: 38 U.S.C. 1317)
(e) Surviving spouse becomes entitled. A surviving spouse who becomes eligible to receive death compensation by reason of liberalizing provisions of any law may receive death compensation or elect dependency and indemnity compensation even though dependency and indemnity compensation has been paid to a child or children of the veteran.
(f) Death aid and attendance pension benefit rate. (1) Effective October 1, 1961, where the monthly rate of dependency and indemnity compensation payable to a surviving spouse who has children is less than the monthly rate of death aid and attendance pension benefit which would be payable to such surviving spouse if the veteran's death had not been service connected, dependency and indemnity compensation shall be paid to such surviving spouse in an amount equal to the aid and attendance pension benefit rate for any month (or part thereof) in which this rate is greater.
(2) Effective June 22, 1966, where the monthly rate of dependency and indemnity compensation payable to a surviving spouse who has children is less than the monthly rate of death aid and attendance pension benefit which would be payable for the children if the veteran's death had not been service connected and the surviving spouse were not entitled to such aid and attendance pension benefit, dependency and indemnity compensation shall be payable to the surviving spouse in an amount equal to the monthly rate of death aid and attendance pension benefit which would be payable to the children for any month (or part thereof) in which this rate is greater.
(Authority: 38 U.S.C. 1312(b))
Cross Reference:
Deaths prior to January 1, 1957. See §3.400(c)(3)(i).
[35 FR 18661, Dec. 9, 1970, as amended at 39 FR 20205, June 7, 1974; 41 FR 17387, Apr. 26, 1976; 44 FR 45943, Aug. 6, 1979; 60 FR 18356, Apr. 11, 1995; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. 6, 1997]
M21-1MR - Adjudication Procedures Manual Rewrite
Rating decisions are required on major issues that relate to entitlement, such as when a veteran claims a service-connected (SC) disability for the first time, in an original or new claim when the claimant is entitled to ancillary benefits, such as special housing adaptation (SHA), automobile allowance, and so on evaluating the disability and determining entitlement to statutory benefits (for example, Special Monthly Compensation (SMC)) establishing the cause of death, and relationship of SC diseases or injuries to the cause of death establishing the competency of payee beneficiaries whether the veteran was insane at the time of the commission of offenses that resulted in a service department determination precluding entitlement to benefits whether the veteran or potential beneficiary was insane at the time of causing or participating in a person’s death (in homicide cases).
whether a child is permanently incapable of self-support whether the occurrence of a disability or death was due to hospitalization at a VA facility medical or surgical treatment, or examination at a VA facility, or vocational rehabilitation when a determination of entitlement to retroactive benefits is needed for a period prior to July 1, 1973, whether a disability incurred or aggravated in peacetime was a direct result of armed conflict, or extra-hazardous service whether the veteran’s release from service was due to an SC disability, if his/her service was less than 90 days whether, at the time of discharge, the veteran had an SC disability that would have justified discharge for disability, if his/her service was less than 90 days whether the veteran has permanent and total disability from nonservice-connected (NSC) illness or injury in claims for aid and attendance pension benefit that cannot be granted administratively whether the veteran’s disabilities are severe enough that he/she qualifies for Housebound or Aid and Attendance (A&A) benefits whether the veteran’s surviving spouse or parent is entitled to an allowance for A&A whether the veteran’s surviving spouse is entitled to Housebound benefits (Dependency and Indemnity Compensation (DIC) or Improved Death Aid and attendance pension benefit only), and whether the veteran is entitled to additional compensation for aid and attendance for his/her spouse. References: For more information on death caused by treatment administered by VA, see 38 U.S.C. 1151 SC disability, see 38CFR 3.303, and 38 CFR 3.304.Do not use locally devised checklists for completion by physicians or others. Since functional impairment is seldom total in extent, Yes or No blocks do not provide sufficient descriptive information to assess the extent of a claimant’s incapacitation.Determinations of a claimant’s need for A&A or Housebound benefits may be based on medical reports and findings by private physicians or from non-Department of Veterans Affairs (VA) facilities. Notes: Examinations of survivors by VA are not generally conducted except at the discretion of the Veterans Service Center Manager (VSCM). Statements by private physicians meeting the requirements of 38 CFR 3.326(d) are acceptable for rating purposes. Statements by responsible officials of nursing homes are acceptable to establish patient status without the need for a physical examination. Statements may be provided on VA Form 21-0779, Request for Nursing Home Information in Connection with Claim for Aid and Attendance. Pertinent or missing information may also be obtained telephonically and documented on VA Form 119, Report of Contact. VA Form 21-2680, Examination of Housebound Status or Permanent Need for Regular Aid and Attendance is for use by VA physicians only and should not be provided to claimants or private medical providers for completion. Reference: For more information on A&A criteria, see 38 CFR 3.351(c)(2).8.13 AID AND ATTENDANCE (A&A) a. General. The criteria for determining need for A&A, which appear in 38 CFR 3.352(a), provide that the veteran must be so helpless as to require the aid of another person to perform the personal functions required in everyday living. If there is no need for A&A, dispose of the claim by discussing that finding in the "Reasons and Bases" section of a rating decision. b. If the evidence demonstrates disability meeting the criteria for A&A or housebound benefits, entitlement must be established; failure to do so would constitute clear and unmistakable error. If the evidence suggests entitlement but is not definitive, then the issue must be properly developed. However, if the evidence does not indicate either entitlement or probable entitlement, this issue need not be raised by VA simply to deny.
M21-1, Part VI December 29, 2003
Change 108
8.15 HIGHER LEVEL OF AID AND ATTENDANCE (R2) a. General. A veteran entitled to the regular A&A allowance under 38 U.S.C. 1114(r) is entitled to receive, in lieu of that allowance, a higher A&A allowance if the veteran is found to be in need of and receiving a higher level of care. Award the higher allowance only when the need is clearly established and the amount of skilled service required by the veteran is substantial. This allowance is payable even if such skilled service is being furnished by VA or another entity at no expense to the veteran. Refer to the criteria contained under 38 CFR 3.352(b). b. Required Evidence. A claim for this allowance must include a statement from a licensed health care professional who is providing or supervising the daily skilled health care on a continuing basis in the veteran's home. If the initial claim for this benefit does not include this statement, request the veteran to furnish a statement from the licensed health care professional who provides or supervises skilled health care services. This statement should indicate the nature, extent and frequency of the services provided as well as specifying the conditions which cause the need for this care. Additionally, if the services are actually provided by a nonprofessional, the statement should indicate the nature and extent of the supervision being provided. (1) Skilled Care Not Provided. If the statement from the licensed health care professional does not demonstrate that qualifying services are being provided, dispose of the issue by appropriate rating action. (2) Skilled Care Provided. If a statement from a licensed health care professional shows that qualifying skilled services are being provided on a continuing basis, request an immediate examination to include a certification of the need for the level of care required for entitlement to the higher rate under 38 U.S.C. 1114(r)(2) authorized by Public Law 95-479. Provide a copy of the statement submitted by the licensed provider to the examiner. (a) Base eligibility to the higher allowance on medical certification that the veteran meets the criteria outlined in 38 CFR 3.352(a). (b) VA Form 21-2680, "Examination for Housebound Status or Permanent Need for Regular Aid and Attendance," will be completed in response to the VA Form 21-2507 request. The physician will certify whether an ongoing daily need for skilled personal care is indicated by completing item 32 of VA Form 21-2680. (3) Hospitalization Adjustment. Aid and attendance benefits, including those payable under 38 U.S.C. 1114(r)(2), are subject to reduction under 38 CFR 3.552(b)(2).8.16 HOUSEBOUND BENEFITS The service-connected housebound benefit is payable to a veteran who (a) has a single, service-connected disability rated as total and has an additional service-connected disability, or combination of disabilities, independently ratable at 60 percent or more, or (b) in addition to a single, service-connected disability rated as total, the veteran is permanently housebound from service-connected causes. Ratings of 100 percent under 38 CFR 4.28, 4.29, and 4.30 of the rating schedule may be used as a basis of entitlement.• Authorize the payment of A&A benefits without a rating decision if evidence establishes the claimant is a patient in a nursing home. If a period of hospitalization of 90 days or less results in a discharge to a nursing home, authorize payment of A&A benefits from the date of hospital admission, subject to the effective date provisions in 38 CFR 3.402(c) or 38 CFR 3.404. Important: Housebound benefits may not be authorized without a rating decision. References: For more information on benefit programs and types of claims, see M21-1MR, Part III, Subpart ii, 2, and preparing awards, see M21-1, Part V, Chapter 6.
Income, Asset Tests and Unreimbursed Medical Costs Calculation of Benefits and General Statements
Income
Income Exclusions and Deductions
Unreimbursed Medical Costs
Net Worth
Calculation of Benefits and General StatementsIn Improved Aid and attendance pension benefit cases, the level of countable income determines the rate of Department of Veterans Affairs (VA) benefits that can be paid. The higher the claimant’s countable income, the lower the rate of VA benefits payable. A claimant’s countable income is also called their income for VA purposes (IVAP). Deny a claim for an income-based benefit if the claimant’s IVAP exceeds the applicable income limit or maximum annual aid and attendance pension benefit rate (MAPR). Reference: For information on the MAPR, see M21-1, Part I, Appendix B.Net worth, or “corpus of estate,” means the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant and/or spouse, except the claimant’s single-family dwelling and reasonable personal effects. Note: Unsecured debts, which do not affect the market value of an asset, are not a factor in determining a claimant’s net worth. Improved Aid and attendance pension benefit income is based on 12-month annualization periods. After the initial year, income-counting periods for irregular income and medical expenses coincide with the calendar year. Income is reported on a calendar-year basis. Use the table below for information on income counting and reporting for original and reopened claims, and running awards.the initial annualization period extends from the date of aid and attendance pension benefit entitlement through the end of the month that is 12 months from the month during which entitlement arose. Example: If the date of entitlement is October 28, 2004, the initial annualization period extends from October 28, 2004, through October 31, 2005. References: For more information on determining the initial annualization period, see M21-1MR, Part V, Subpart iii, 1.E.34 (TBD) or M21-1, Part IV, 16.23j, and information on overlapping income counting periods, see M21-1MR, Part V, Subpart iii, 1.E.33 (TBD) or M21-1, Part IV, 16.23c(5). the income reporting period for all years after the initial year of an original or reopened award is based on the calendar year.A rating determination of permanent and total disability is not required to establish eligibility for aid and attendance pension benefit when a claimant is age 65 or older, and/or presumed to be totally and permanently disabled for aid and attendance pension benefit purposes because he/she is a patient in a nursing home for long-term care because of disability, or disabled, as determined by the Commissioner of Social Security (SS) for purposes of any benefits administered by the Commissioner, such as SS disability insurance or supplemental security income. (Note: Claimants age 62 to 65 only must provide a copy of the letter awarding SS disability insurance. This is an interim procedure until such time that the Department of Veterans Affairs (