June 13, 2003 CODE OF FEDERAL REGULATIONS 38 Parts 0 to 17 Revised as of July 1, 2003 Pensions, Bonuses, and Veterans' Relief Containing a codification of documents of general applicability and future effect As of July 1, 2003 With Ancillaries

Published by

Office of the Federal Register

National Archives and Records

Administration

 A Special Edition of the Federal Register U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2003

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800

Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

 Table of Contents Page Explanation v Title 38: Chapter I—Department of Veterans Affairs 3 Finding Aids: Material Approved for Incorporation by Reference 717 Table of CFR Titles and Chapters 719 Alphabetical List of Agencies Appearing in the CFR 737 List of CFR Sections Affected 747

Cite this Code:CFR

To cite the regulations in this volume use title, part and section number. Thus, 38 CFR 0.735-1 refers to title 38, part 0, section 735-1. Explanation

The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.

Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:

Title 1 through Title 16

as of January 1

Title 17 through Title 27

as of April 1

Title 28 through Title 41

as of July 1

Title 42 through Title 50

as of October 1

The appropriate revision date is printed on the cover of each volume.

LEGAL STATUS

The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).

 HOW TO USE THE CODE OF FEDERAL REGULATIONS

The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.

To determine whether a Code volume has been amended since its revision date (in this case, July 1, 2003), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.

 EFFECTIVE AND EXPIRATION DATES

Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.

 OMB CONTROL NUMBERS

The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.

 OBSOLETE PROVISIONS

Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate volumes. For the period beginning January 1, 2001, a “List of CFR Sections Affected” is published at the end of each CFR volume.

 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 741-6010.

 CFR INDEXES AND TABULAR GUIDES

A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR Index and Finding Aids. This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

An index to the text of “Title 3—The President” is carried within that volume.

The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.

A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.

 REPUBLICATION OF MATERIAL

There are no restrictions on the republication of material appearing in the Code of Federal Regulations.

 INQUIRIES

For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.

For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail info@fedreg.nara.gov.

 SALES

The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-512-1803.

 ELECTRONIC SERVICES

The full text of the Code of Federal Regulations, The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format at www.access.gpo.gov/nara (“GPO Access”). For more information, contact Electronic Information Dissemination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, gpoaccess@gpo.gov.

The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA's web site at www.archives.gov/federal_register. The NARA site also contains links to GPO Access.

 Raymond A. Mosley, Director, Office of the Federal Register. July 1, 2003. THIS TITLE

Title 38—Pensions, Bonuses and Veterans' Relief is composed of two volumes, parts 0-17 and part 18 to End. The contents of these volumes represent all current regulations of the Department of Veterans Affairs codified under this title of the CFR as of July 1, 2003.

CFRORDR.FRM <CFRTITLE> <LRH>38 CFR Ch. I (7-1-03 Edition)</LRH> <RRH>Department of Veterans Affairs</RRH> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 38—Pensions, Bonuses, and Veterans' Relief</HD> <P>(This book contains parts 0 to 17)</P> </TITLEHD> <CFRTOC> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT> <E T="04">chapter i</E>—Department of Veterans Affairs</SUBJECT> <PG>0</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="3"/> <HD SOURCE="HED">CHAPTER I—DEPARTMENT OF VETERANS AFFAIRS</HD> </TOCHD> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to chapter I appear at 64 FR 30244, June 7, 1999; 66 FR 44053, Aug. 22, 2001; and 66 FR 66767, Dec. 27, 2001.</P> </EDNOTE> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>0</PT> <SUBJECT>Standards of ethical conduct and related responsibilities</SUBJECT> <PG>5</PG> <PT>1</PT> <SUBJECT>General provisions</SUBJECT> <PG>6</PG> <PT>2</PT> <SUBJECT>Delegations of authority</SUBJECT> <PG>134</PG> <PT>3</PT> <SUBJECT>Adjudication</SUBJECT> <PG>141</PG> <PT>4</PT> <SUBJECT>Schedule for rating disabilities</SUBJECT> <PG>358</PG> <PT>5</PT> <RESERVED>[Reserved]</RESERVED> <PT>6</PT> <SUBJECT>United States Government life insurance</SUBJECT> <PG>457</PG> <PT>7</PT> <SUBJECT>Soldiers’ and sailors’ civil relief</SUBJECT> <PG>463</PG> <PT>8</PT> <SUBJECT>National Service Life Insurance</SUBJECT> <PG>465</PG> <PT>8a</PT> <SUBJECT>Veterans Mortgage Life Insurance</SUBJECT> <PG>483</PG> <PT>9</PT> <SUBJECT>Servicemembers' Group Life Insurance and Veterans' Group Life Insurance</SUBJECT> <PG>486</PG> <PT>10</PT> <SUBJECT>Adjusted compensation</SUBJECT> <PG>495</PG> <PT>11</PT> <SUBJECT>Loans by banks on and payment of adjusted service certificates</SUBJECT> <PG>503</PG> <PT>12</PT> <SUBJECT>Disposition of veteran's personal funds and effects</SUBJECT> <PG>509</PG> <PT>13</PT> <SUBJECT>Veterans Benefits Administration, fiduciary activities</SUBJECT> <PG>521</PG> <PT>14</PT> <SUBJECT>Legal services, General Counsel, and miscellaneous claims</SUBJECT> <PG>529</PG> <PT>15</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Department of Veterans Affairs</SUBJECT> <PG>569</PG> <PT>16</PT> <SUBJECT>Protection of human subjects</SUBJECT> <PG>575</PG> <PT>17</PT> <SUBJECT>Medical</SUBJECT> <PG>586</PG> </CHAPTI> </TOC> <PART> <PRTPAGE P="5"/> <EAR>Pt. 0</EAR> <HD SOURCE="HED">PART 0—STANDARDS OF ETHICAL CONDUCT AND RELATED RESPONSIBILITIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>0.735-1</SECTNO> <SUBJECT>Agency ethics officials.</SUBJECT> <SECTNO>0.735-2</SECTNO> <SUBJECT>Government-wide standards.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Standards of Ethical Conduct and Related Responsibilities of Employees</HD> <SECTNO>0.735-10</SECTNO> <SUBJECT>Cross-reference to employee ethical and other conduct standards and financial disclosure regulations.</SUBJECT> <SECTNO>0.735-11</SECTNO> <SUBJECT>Other conduct on the job.</SUBJECT> <SECTNO>0.735-12</SECTNO> <SUBJECT>Standards of conduct in special areas.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and 502(a) of E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>31 FR 5828, Apr. 15, 1966, unless otherwise noted.</P> </SOURCE> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 0 appear at 61 FR 7216, Feb. 27, 1996.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 0.735-1</SECTNO> <SUBJECT>Agency ethics officials.</SUBJECT> <P>(a) <E T="03">Designated Agency Ethics Official (DAEO).</E> The Assistant General Counsel (023) is the designated agency ethics official (DAEO) for the Department of Veterans Affairs. The Deputy Assistant General Counsel (023C) is the alternate DAEO, who is designated to act in the DAEO's absence. The DAEO has primary responsibility for the administration, coordination, and management of the VA ethics program, pursuant to 5 CFR 2638.201-204.</P> <P>(b) <E T="03">Deputy ethics officials.</E> (1) The Regional Counsel are deputy ethics officials. They have been delegated the authority to act for the DAEO within their jurisdiction, under the DAEO's supervision, pursuant to 5 CFR 2638.204.</P> <P>(2) The alternate DAEO, the DAEO's staff, and staff in the Offices of Regional Counsel, may also act as deputy ethics officials pursuant to delegations of one or more of the DAEO's duties from the DAEO or the Regional Counsel.</P> <CITA>[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 0.735-2</SECTNO> <SUBJECT>Government-wide standards.</SUBJECT> <P>For government-wide standards of ethical conduct and related responsibilities for Federal employees, see 5 CFR Part 735 and Chapter XVI.</P> <CITA>[61 FR 11309, Mar. 20, 1996. Redesignated at 63 FR 33579, June 19, 1998]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Standards of Ethical Conduct and Related Responsibilities of Employees</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 61814, Nov. 23, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 0.735-10</SECTNO> <SUBJECT>Cross-reference to employee ethical and other conduct standards and financial disclosure regulations.</SUBJECT> <P>Employees of the Department of Veterans Affairs (VA) should refer to the executive branch-wide Standards of Ethical Conduct at 5 CFR part 2635, the executive branch-wide Employee Responsibilities and Conduct at 5 CFR part 735, and the executive branch-wide financial disclosure regulation at 5 CFR part 2634.</P> </SECTION> <SECTION> <SECTNO>§ 0.735-11</SECTNO> <SUBJECT>Other conduct on the job.</SUBJECT> <P> <E T="03">Relationship with beneficiaries and claimants.</E> Employees are expected to be helpful to beneficiaries, patients and claimants, but:</P> <P>(a) An employee shall not procure intoxicants or drugs for, or attempt to sell intoxicants or drugs to, patients or members, or give or attempt to give intoxicants or drugs to them unless officially prescribed for medical use;</P> <P>(b) An employee shall not abuse patients, members, or other beneficiaries, whether or not provoked.</P> </SECTION> <SECTION> <SECTNO>§ 0.735-12</SECTNO> <SUBJECT>Standards of conduct in special areas.</SUBJECT> <P>(a) <E T="03">Safety.</E> (1) Employees will observe safety instructions, signs, and normal safety practices and precautions, including the use of protective clothing and equipment.</P> <P>(2) An employee shall report each work-connected injury, accident or disease he or she suffers.</P> <P>(b) <E T="03">Furnishing testimony.</E> Employees will furnish information and testify freely and honestly in cases respecting employment and disciplinary matters. <PRTPAGE P="6"/>Refusal to testify, concealment of material facts, or willfully inaccurate testimony in connection with an investigation or hearing may be ground for disciplinary action. An employee, however, will not be required to give testimony against himself or herself in any matter in which there is indication that he or she may be or is involved in a violation of law wherein there is a possibility of self-incrimination.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 1 </EAR> <HD SOURCE="HED">PART 1—GENERAL PROVISIONS</HD> <CONTENTS> <SUBJGRP> <HD SOURCE="HED">Department of Veterans Affairs Official Seal and Distinguishing Flag</HD> <SECHD>Sec.</SECHD> <SECTNO>1.9</SECTNO> <SUBJECT>Description, use, and display of VA seal and flag.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">The United States Flag for Burial Purposes</HD> <SECTNO>1.10</SECTNO> <SUBJECT>Eligibility for and disposition of the United States flag for burial purposes.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Quarters for Department of Veterans Affairs Employees Overseas</HD> <SECTNO>1.11</SECTNO> <SUBJECT>Quarters for Department of Veterans Affairs employees in Government-owned or -rented buildings overseas.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Program Evaluation</HD> <SECTNO>1.15</SECTNO> <SUBJECT>Standards for program evaluation.</SUBJECT> <SECTNO>1.17</SECTNO> <SUBJECT>Evaluation of studies relating to health effects of dioxin and radiation exposure.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referrals of Information Regarding Criminal Violations</HD> <SECTNO>1.200</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.201</SECTNO> <SUBJECT>Employee's duty to report.</SUBJECT> <SECTNO>1.203</SECTNO> <SUBJECT>Information to be reported to VA Police.</SUBJECT> <SECTNO>1.204</SECTNO> <SUBJECT>Information to be reported to the Office of Inspector General.</SUBJECT> <SECTNO>1.205</SECTNO> <SUBJECT>Notification to the Attorney General or United States Attorney's Office.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Security and Law Enforcement at Department of Veterans Affairs Facilities</HD> <SECTNO>1.218</SECTNO> <SUBJECT>Security and law enforcement at VA facilities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parking Fees at VA Medical Facilities</HD> <SECTNO>1.300</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.301</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.302</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <SECTNO>1.303</SECTNO> <SUBJECT>Policy.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Release of Information from Department of Veterans Affairs (VA) Records Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia</HD> <SECTNO>1.460</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.461</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>1.462</SECTNO> <SUBJECT>Confidentiality restrictions.</SUBJECT> <SECTNO>1.463</SECTNO> <SUBJECT>Criminal penalty for violations.</SUBJECT> <SECTNO>1.464</SECTNO> <SUBJECT>Minor patients.</SUBJECT> <SECTNO>1.465</SECTNO> <SUBJECT>Incompetent and deceased patients.</SUBJECT> <SECTNO>1.466</SECTNO> <SUBJECT>Security for records.</SUBJECT> <SECTNO>1.467</SECTNO> <SUBJECT>Restrictions on the use of identification cards and public signs.</SUBJECT> <SECTNO>1.468</SECTNO> <SUBJECT>Relationship to Federal statutes protecting research subjects against compulsory disclosure of their identity.</SUBJECT> <SECTNO>1.469</SECTNO> <SUBJECT>Patient access and restrictions on use.</SUBJECT> <SECTNO>1.470-1.474</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Disclosures With Patient's Consent</HD> <SECTNO>1.475</SECTNO> <SUBJECT>Form of written consent.</SUBJECT> <SECTNO>1.476</SECTNO> <SUBJECT>Prohibition on redisclosure.</SUBJECT> <SECTNO>1.477</SECTNO> <SUBJECT>Disclosures permitted with written consent.</SUBJECT> <SECTNO>1.478</SECTNO> <SUBJECT>Disclosures to prevent multiple enrollments in detoxification and maintenance treatment programs; not applicable to records relating to sickle cell anemia or infection with the human immunodeficiency virus.</SUBJECT> <SECTNO>1.479</SECTNO> <SUBJECT>Disclosures to elements of the criminal justice system which have referred patients.</SUBJECT> <SECTNO>1.480-1.484</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Disclosures Without Patient Consent</HD> <SECTNO>1.485</SECTNO> <SUBJECT>Medical emergencies.</SUBJECT> <SECTNO>1.486</SECTNO> <SUBJECT>Disclosure of information related to infection with the human immunodeficiency virus to public health authorities.</SUBJECT> <SECTNO>1.487</SECTNO> <SUBJECT>Disclosure of information related to infection with the human immunodeficiency virus to the spouse or sexual partner of the patient.</SUBJECT> <SECTNO>1.488</SECTNO> <SUBJECT>Research activities.</SUBJECT> <SECTNO>1.489</SECTNO> <SUBJECT>Audit and evaluation activities.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Court Orders Authorizing Disclosures and Use</HD> <SECTNO>1.490</SECTNO> <SUBJECT>Legal effect of order.</SUBJECT> <SECTNO>1.491</SECTNO> <SUBJECT>Confidential communications.</SUBJECT> <SECTNO>1.492</SECTNO> <SUBJECT>Order not applicable to records disclosed without consent to researchers, auditors and evaluators.</SUBJECT> <SECTNO>1.493</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosures for noncriminal purposes.</SUBJECT> <SECTNO>1.494</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosure and use of records to criminally investigate or prosecute patients.<PRTPAGE P="7"/> </SUBJECT> <SECTNO>1.495</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute VA or employees of VA.</SUBJECT> <SECTNO>1.496</SECTNO> <SUBJECT>Orders authorizing the use of undercover agents and informants to criminally investigate employees or agents of VA.</SUBJECT> <SECTNO>1.497-1.499</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Release of Information From Department of Veterans Affairs Claimant Records</HD> <SECTNO>1.500</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1.501</SECTNO> <SUBJECT>Release of information by the Secretary.</SUBJECT> <SECTNO>1.502</SECTNO> <SUBJECT>Disclosure of the amount of monetary benefits.</SUBJECT> <SECTNO>1.503</SECTNO> <SUBJECT>Disclosure of information to a veteran or his or her duly authorized representative as to matters concerning the veteran alone.</SUBJECT> <SECTNO>1.504</SECTNO> <SUBJECT>Disclosure of information to a widow, child, or other claimant.</SUBJECT> <SECTNO>1.505</SECTNO> <SUBJECT>Genealogy.</SUBJECT> <SECTNO>1.506</SECTNO> <SUBJECT>Disclosure of records to Federal Government departments, State unemployment compensation agencies, and the Office of Servicemembers' Group Life Insurance.</SUBJECT> <SECTNO>1.507</SECTNO> <SUBJECT>Disclosures to members of Congress.</SUBJECT> <SECTNO>1.508</SECTNO> <SUBJECT>Disclosure in cases where claimants are charged with or convicted of criminal offenses.</SUBJECT> <SECTNO>1.509</SECTNO> <SUBJECT>Disclosure to courts in proceedings in the nature of an inquest.</SUBJECT> <SECTNO>1.510</SECTNO> <SUBJECT>Disclosure to insurance companies cooperating with the Department of Justice in the defense of insurance suits against the United States.</SUBJECT> <SECTNO>1.511</SECTNO> <SUBJECT>Disclosure of claimant records in connection with judicial proceedings generally.</SUBJECT> <SECTNO>1.512</SECTNO> <SUBJECT>Disclosure of loan guaranty information.</SUBJECT> <SECTNO>1.513</SECTNO> <SUBJECT>Disclosure of information contained in Armed Forces service and related medical records in Department of Veterans Affairs custody.</SUBJECT> <SECTNO>1.514</SECTNO> <SUBJECT>Disclosure to private physicians and hospitals other than Department of Veterans Affairs.</SUBJECT> <SECTNO>1.514a</SECTNO> <SUBJECT>Disclosure to private psychologists.</SUBJECT> <SECTNO>1.515</SECTNO> <SUBJECT>To commanding officers of State soldiers’ homes.</SUBJECT> <SECTNO>1.516</SECTNO> <SUBJECT>Disclosure of information to undertaker concerning burial of a deceased veteran.</SUBJECT> <SECTNO>1.517</SECTNO> <SUBJECT>Disclosure of vocational rehabilitation and education information to educational institutions cooperating with the Department of Veterans Affairs.</SUBJECT> <SECTNO>1.518</SECTNO> <SUBJECT>Addresses of claimants.</SUBJECT> <SECTNO>1.519</SECTNO> <SUBJECT>Lists of names and addresses.</SUBJECT> <SECTNO>1.520</SECTNO> <SUBJECT>Confidentiality of social data.</SUBJECT> <SECTNO>1.521</SECTNO> <SUBJECT>Special restrictions concerning social security records.</SUBJECT> <SECTNO>1.522</SECTNO> <SUBJECT>Determination of the question as to whether disclosure will be prejudicial to the mental or physical health of claimant.</SUBJECT> <SECTNO>1.523</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.524</SECTNO> <SUBJECT>Persons authorized to represent claimants.</SUBJECT> <SECTNO>1.525</SECTNO> <SUBJECT>Inspection of records by or disclosure of information to recognized representatives of organizations and recognized attorneys.</SUBJECT> <SECTNO>1.526</SECTNO> <SUBJECT>Copies of records and papers.</SUBJECT> <SECTNO>1.527</SECTNO> <SUBJECT>Administrative review.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Release of Information From Department of Veterans Affairs Records Other Than Claimant Records</HD> <SECTNO>1.550</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>1.551</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.552</SECTNO> <SUBJECT>Public access to information that affects the public when not published in the <E T="04">Federal Register</E> as constructive notice.</SUBJECT> <SECTNO>1.553</SECTNO> <SUBJECT>Public access to other reasonably described records.</SUBJECT> <SECTNO>1.553a</SECTNO> <SUBJECT>Time limits for Department of Veterans Affairs response to requests for records.</SUBJECT> <SECTNO>1.554</SECTNO> <SUBJECT>Exemptions from public access to agency records.</SUBJECT> <SECTNO>1.554a</SECTNO> <SUBJECT>Predisclosure notification procedures for confidential commercial information.</SUBJECT> <SECTNO>1.555</SECTNO> <SUBJECT>Fees.</SUBJECT> <SECTNO>1.556</SECTNO> <SUBJECT>Requests for other reasonably described records.</SUBJECT> <SECTNO>1.557</SECTNO> <SUBJECT>Administrative review.</SUBJECT> <SECTNO>1.558-1.559</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Safeguarding Personal Information in Department of Veterans Affairs Records</HD> <SECTNO>1.575</SECTNO> <SUBJECT>Social security numbers in veterans’ benefits matters.</SUBJECT> <SECTNO>1.576</SECTNO> <SUBJECT>General policies, conditions of disclosure, accounting of certain disclosures, and definitions.</SUBJECT> <SECTNO>1.577</SECTNO> <SUBJECT>Access to records.</SUBJECT> <SECTNO>1.578</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.579</SECTNO> <SUBJECT>Amendment of records.</SUBJECT> <SECTNO>1.580</SECTNO> <SUBJECT>Administrative review.</SUBJECT> <SECTNO>1.581</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.582</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1.583-1.584</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">National Cemeteries</HD> <SECTNO>1.600</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.601</SECTNO> <SUBJECT>Advisory Committee on Cemeteries and Memorials.</SUBJECT> <SECTNO>1.602</SECTNO> <SUBJECT>Names for national cemetery activities.</SUBJECT> <SECTNO>1.603</SECTNO> <SUBJECT>Gifts and donations.</SUBJECT> <SECTNO>1.604-1.616</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.617</SECTNO> <SUBJECT>Prohibition of interment or memorialization of persons who have been convicted of Federal or State capital crimes.</SUBJECT> <SECTNO>1.618</SECTNO> <SUBJECT>Findings concerning commission of a capital crime where a person has not <PRTPAGE P="8"/>been convicted due to death or flight to avoid prosecution.</SUBJECT> <SECTNO>1.619</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.620</SECTNO> <SUBJECT>Eligibility for burial.</SUBJECT> <SECTNO>1.621</SECTNO> <SUBJECT>Disinterments from national cemeteries.</SUBJECT> <SECTNO>1.622-1.628</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.629</SECTNO> <SUBJECT>Monetary allowance in lieu of a Government-furnished outer burial receptacle.</SUBJECT> <SECTNO>1.630</SECTNO> <SUBJECT>Headstones and markers.</SUBJECT> <SECTNO>1.631</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.632</SECTNO> <SUBJECT>Headstone and marker application required.</SUBJECT> <SECTNO>1.633</SECTNO> <SUBJECT>Group memorial monuments.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Inventions by Employees of Department of Veterans Affairs</HD> <SECTNO>1.650</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.651</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.652</SECTNO> <SUBJECT>Criteria for determining rights to employee inventions.</SUBJECT> <SECTNO>1.653</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <SECTNO>1.654</SECTNO> <SUBJECT>Patenting of inventions.</SUBJECT> <SECTNO>1.655</SECTNO> <SUBJECT>Government license in invention of employee.</SUBJECT> <SECTNO>1.656</SECTNO> <SUBJECT>Information to be submitted by inventor.</SUBJECT> <SECTNO>1.657</SECTNO> <SUBJECT>Determination of rights.</SUBJECT> <SECTNO>1.658</SECTNO> <SUBJECT>Right of appeal.</SUBJECT> <SECTNO>1.659</SECTNO> <SUBJECT>Relationship to incentive awards program.</SUBJECT> <SECTNO>1.660</SECTNO> <SUBJECT>Expeditious handling.</SUBJECT> <SECTNO>1.661</SECTNO> <SUBJECT>Information to be kept confidential.</SUBJECT> <SECTNO>1.662</SECTNO> <SUBJECT>Provisions of regulations made a condition of employment.</SUBJECT> <SECTNO>1.663</SECTNO> <SUBJECT>Licensing of Government-owned inventions.</SUBJECT> <SECTNO>1.664-1.666</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Administrative Control of Funds</HD> <SECTNO>1.670</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.671</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.672</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <SECTNO>1.673</SECTNO> <SUBJECT>Responsibility for violations of the administrative subdivision of funds.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Use of Official Mail in the Location and Recovery of Missing Children</HD> <SECTNO>1.700</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.701</SECTNO> <SUBJECT>Contact person for missing children official mail program.</SUBJECT> <SECTNO>1.702</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>1.703</SECTNO> <SUBJECT>Percentage estimate.</SUBJECT> <SECTNO>1.704</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.705</SECTNO> <SUBJECT>Restrictions on use of missing children information.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Homeless Claimants</HD> <SECTNO>1.710</SECTNO> <SUBJECT>Homeless claimants: Delivery of benefit payments and correspondence.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals from Decisions of Contracting Officers Under the Contract Disputes Act of <E T="01">1978</E> </HD> <SECTNO>1.780</SECTNO> <SUBJECT>Board of Contract Appeals—jurisdiction.</SUBJECT> <SECTNO>1.781</SECTNO> <SUBJECT>Organization and address of the Board.</SUBJECT> <SECTNO>1.782</SECTNO> <SUBJECT>Policy and procedure.</SUBJECT> <SECTNO>1.783</SECTNO> <SUBJECT>Rules of the Board.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Part-Time Career Employment Program</HD> <SECTNO>1.891</SECTNO> <SUBJECT>Purpose of program.</SUBJECT> <SECTNO>1.892</SECTNO> <SUBJECT>Review of positions.</SUBJECT> <SECTNO>1.893</SECTNO> <SUBJECT>Establishing and converting part-time positions.</SUBJECT> <SECTNO>1.894</SECTNO> <SUBJECT>Annual goals and timetables.</SUBJECT> <SECTNO>1.895</SECTNO> <SUBJECT>Review and evaluation.</SUBJECT> <SECTNO>1.896</SECTNO> <SUBJECT>Publicizing vacancies.</SUBJECT> <SECTNO>1.897</SECTNO> <SUBJECT>Exceptions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Collection, Compromise, Suspension or Termination of Collection Effort, and Referral of Civil Claims for Money or Property</HD> <SECTNO>1.900</SECTNO> <SUBJECT>Prescription of standards.</SUBJECT> <SECTNO>1.901</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <SECTNO>1.902</SECTNO> <SUBJECT>Fraud, antitrust and tax claims excluded.</SUBJECT> <SECTNO>1.903</SECTNO> <SUBJECT>Settlement, waiver, or compromise under other statutory or regulatory authority.</SUBJECT> <SECTNO>1.904</SECTNO> <SUBJECT>Conversion claims.</SUBJECT> <SECTNO>1.905</SECTNO> <SUBJECT>Subdivision of claims not authorized.</SUBJECT> <SECTNO>1.906</SECTNO> <SUBJECT>Required administrative proceedings.</SUBJECT> <SECTNO>1.907</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Collection of Claims</HD> <SECTNO>1.910</SECTNO> <SUBJECT>Aggressive collection action.</SUBJECT> <SECTNO>1.911</SECTNO> <SUBJECT>Collection of debts owed by reason of participation in a benefits program.</SUBJECT> <SECTNO>1.912</SECTNO> <SUBJECT>Collection by offset.</SUBJECT> <SECTNO>1.912a</SECTNO> <SUBJECT>Collection by offset—from VA benefit payments.</SUBJECT> <SECTNO>1.913</SECTNO> <SUBJECT>Personal interview with debtor.</SUBJECT> <SECTNO>1.914</SECTNO> <SUBJECT>Contact with debtor's employing agency.</SUBJECT> <SECTNO>1.915</SECTNO> <SUBJECT>Suspension or revocation of eligibility.</SUBJECT> <SECTNO>1.916</SECTNO> <SUBJECT>Liquidation of collateral.</SUBJECT> <SECTNO>1.917</SECTNO> <SUBJECT>Collection in installments.</SUBJECT> <SECTNO>1.918</SECTNO> <SUBJECT>Exploration of compromise.</SUBJECT> <SECTNO>1.919</SECTNO> <SUBJECT>Interest.</SUBJECT> <SECTNO>1.920</SECTNO> <SUBJECT>Documentation of collection action.</SUBJECT> <SECTNO>1.921</SECTNO> <SUBJECT>Additional collection action.</SUBJECT> <SECTNO>1.922</SECTNO> <SUBJECT>Disclosure of debt information to consumer reporting agencies (CRA).</SUBJECT> <SECTNO>1.923</SECTNO> <SUBJECT>Contracting for collection services.</SUBJECT> <SECTNO>1.924</SECTNO> <SUBJECT>Use and disclosure of mailing addresses.</SUBJECT> <SECTNO>1.925</SECTNO> <SUBJECT>Administrative offset against amounts payable from Civil Service Retirement and Disability Fund, Federal Employees Retirement System (FERS), final salary check, and lump sum leave payments.</SUBJECT> <SECTNO>1.926</SECTNO> <SUBJECT>Referral of VA debts.</SUBJECT> <SECTNO>1.927</SECTNO> <SUBJECT>Analysis of costs and prevention of debts.<PRTPAGE P="9"/> </SUBJECT> <SECTNO>1.928</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <SECTNO>1.929</SECTNO> <SUBJECT>Reduction of debt through performance of work-study services.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Compromise of Claims</HD> <SECTNO>1.930</SECTNO> <SUBJECT>Scope and application.</SUBJECT> <SECTNO>1.931</SECTNO> <SUBJECT>Inability to pay.</SUBJECT> <SECTNO>1.932</SECTNO> <SUBJECT>Litigative possibilities.</SUBJECT> <SECTNO>1.933</SECTNO> <SUBJECT>Cost of collecting claim.</SUBJECT> <SECTNO>1.934</SECTNO> <SUBJECT>Enforcement policy.</SUBJECT> <SECTNO>1.935</SECTNO> <SUBJECT>Joint and several liability.</SUBJECT> <SECTNO>1.936</SECTNO> <SUBJECT>Settlement for a combination of reasons.</SUBJECT> <SECTNO>1.937</SECTNO> <SUBJECT>Further review of compromise offers.</SUBJECT> <SECTNO>1.938</SECTNO> <SUBJECT>Restrictions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Suspending or Terminating Collection Action</HD> <SECTNO>1.940</SECTNO> <SUBJECT>Scope and application.</SUBJECT> <SECTNO>1.941</SECTNO> <SUBJECT>Suspension of collection activity.</SUBJECT> <SECTNO>1.942</SECTNO> <SUBJECT>Termination of collection activity.</SUBJECT> <SECTNO>1.943</SECTNO> <SUBJECT>Transfer of claims.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referrals to GAO, Department of Justice, or IRS</HD> <SECTNO>1.950</SECTNO> <SUBJECT>Prompt referral.</SUBJECT> <SECTNO>1.951</SECTNO> <SUBJECT>Claims Collection Litigation Report.</SUBJECT> <SECTNO>1.952</SECTNO> <SUBJECT>Preservation of evidence.</SUBJECT> <SECTNO>1.953</SECTNO> <SUBJECT>Minimum amount of referrals to the Department of Justice.</SUBJECT> <SECTNO>1.954</SECTNO> <SUBJECT>Preliminary referrals to GAO.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Regional Office Committees on Waivers and Compromises</HD> <SECTNO>1.955</SECTNO> <SUBJECT>Regional office Committees on Waivers and Compromises.</SUBJECT> <SECTNO>1.956</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <SECTNO>1.957</SECTNO> <SUBJECT>Committee authority.</SUBJECT> <SECTNO>1.958</SECTNO> <SUBJECT>Finality of decisions.</SUBJECT> <SECTNO>1.959</SECTNO> <SUBJECT>Records and certificates.</SUBJECT> <SECTNO>1.960</SECTNO> <SUBJECT>Legal and technical assistance.</SUBJECT> <SECTNO>1.961</SECTNO> <SUBJECT>Releases.</SUBJECT> <SECTNO>1.962</SECTNO> <SUBJECT>Waiver of overpayments.</SUBJECT> <SECTNO>1.963</SECTNO> <SUBJECT>Waiver; other than loan guaranty.</SUBJECT> <SECTNO>1.963a</SECTNO> <SUBJECT>Waiver; erroneous payments of pay and allowances.</SUBJECT> <SECTNO>1.964</SECTNO> <SUBJECT>Waiver; loan guaranty.</SUBJECT> <SECTNO>1.965</SECTNO> <SUBJECT>Application of standard.</SUBJECT> <SECTNO>1.966</SECTNO> <SUBJECT>Scope of waiver decisions.</SUBJECT> <SECTNO>1.967</SECTNO> <SUBJECT>Refunds.</SUBJECT> <SECTNO>1.968</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.969</SECTNO> <SUBJECT>Revision of waiver decisions.</SUBJECT> <SECTNO>1.970</SECTNO> <SUBJECT>Standards for compromise.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Salary Offset Provisions</HD> <SECTNO>1.980</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>1.981</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.982</SECTNO> <SUBJECT>Salary offsets of debts involving benefits under the laws administered by VA.</SUBJECT> <SECTNO>1.983</SECTNO> <SUBJECT>Notice requirements before salary offsets of debts not involving benefits under the laws administered by VA.</SUBJECT> <SECTNO>1.984</SECTNO> <SUBJECT>Request for a hearing.</SUBJECT> <SECTNO>1.985</SECTNO> <SUBJECT>Form, notice of, and conduct of hearing.</SUBJECT> <SECTNO>1.986</SECTNO> <SUBJECT>Result if employee fails to meet deadlines.</SUBJECT> <SECTNO>1.987</SECTNO> <SUBJECT>Review by hearing official or administrative law judge.</SUBJECT> <SECTNO>1.988</SECTNO> <SUBJECT>Written decision following a hearing requested under § 1.984.</SUBJECT> <SECTNO>1.989</SECTNO> <SUBJECT>Review of VA records related to the debt.</SUBJECT> <SECTNO>1.990</SECTNO> <SUBJECT>Written agreement to repay debt as alternative to salary offset.</SUBJECT> <SECTNO>1.991</SECTNO> <SUBJECT>Procedures for salary offset: when deductions may begin.</SUBJECT> <SECTNO>1.992</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <SECTNO>1.993</SECTNO> <SUBJECT>Non-waiver of rights.</SUBJECT> <SECTNO>1.994</SECTNO> <SUBJECT>Refunds.</SUBJECT> </SUBJGRP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501(a), unless otherwise noted.</P> </AUTH> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 1 appear at 61 FR 7216, Feb. 27, 1996; 62 FR 35970, July 3, 1997; 62 FR 47532, Sept. 9, 1997.</P> </EDNOTE> <SUBJGRP> <HD SOURCE="HED">Department of Veterans Affairs Official Seal and Distinguishing Flag</HD> <SECTION> <SECTNO>§ 1.9</SECTNO> <SUBJECT>Description, use, and display of VA seal and flag.</SUBJECT> <P>(a) <E T="03">General.</E> This section describes the official seal and distinguishing flag of the of the Department of Veterans Affairs, and prescribes the rules for their custody and use.</P> <P>(b) <E T="03">Definitions.</E> </P> <P>(1) <E T="03">VA</E> means all organizational units of the Department of Veterans Affairs.</P> <P>(2) <E T="03">Embossed seal</E> means an image of the official seal made on paper or other medium by using an embosser with a negative and positive die to create a raised impression.</P> <P>(3) <E T="03">Official seal</E> means the original(s) of the VA seal showing the exact form, content, and colors thereof.</P> <P>(4) <E T="03">Replica</E> means a copy of the official seal displaying the identical form, content, and colors thereof.</P> <P>(5) <E T="03">Reproduction</E> means a copy of the official seal displaying the identical form and content, reproduced in only one color.</P> <P>(6) <E T="03">Secretary</E> means the Secretary of Veterans Affairs.</P> <P>(7) <E T="03">Deputy Secretary</E> means the Deputy Secretary of Veterans Affairs.</P> <P>(c) <E T="03">Custody of official seal and distinguishing flags.</E> The Secretary or designee shall:</P> <P>(1) Have custody of:</P> <P>(i) The official seal and prototypes thereof, and masters, molds, dies, and <PRTPAGE P="10"/>other means of producing replicas, reproductions, and embossing seals and</P> <P>(ii) Production, inventory, and loan records relating to items specified in paragraph (c)(1)(i) of this section, and</P> <P>(2) Have custody of distinguishing flags, and be responsible for production, inventory, and loan records thereof.</P> <P>(d) <E T="03">Official Seal</E>—(1)<E T="03"> Description of official seal.</E> The Department of Veterans Affairs prescribes as its official seal, of which judicial notice shall be taken pursuant to 38 U.S.C. 302, the imprint illustrated below:</P> <GPH DEEP="167" SPAN="1"> <GID>EC04NO91.000</GID> </GPH> <P>(i) The official seal includes an American eagle clutching a cord in its talons. The cord binds a 13-star U.S. flag and a 50-star U.S. flag. In the field over the eagle is a pentagon formation of stars, with one point down. The words Department of Veterans Affairs and United States of America surround the eagle, stars, and flags. A rope motif makes up the outermost ring of the seal.</P> <P>(ii) The eagle represents the eternal vigilance of all our nation's veterans. The stars represent the five branches of military service. The crossed flags represent our nation's history. The gold cord that binds the two flags, which is shown clutched in the eagle's talons is symbolic of those who have fallen in the defense of liberty. Each of the various individual items placed together in the seal is a salute to the past, present, and future.</P> <P>(iii) The colors used in the configuration are gold, brown, blue, white, silver, yellow, black, and red.</P> <P>(iv) The colors are derived from the American flag and from nature. By invoking this symbolism, the color scheme represents the Nation's commitment to its veterans.</P> <P>(2) <E T="03">Use of the official seal, replicas, reproductions, and embossing seals.</E> (i) The Secretary or designees are authorized to affix replicas, reproductions, and embossed seals to appropriate documents, certifications, and other material for all purposes as authorized by this section.</P> <P>(ii) Replicas may be used only for:</P> <P>(A) Display in or adjacent to VA facilities, in Department auditoriums, presentation rooms, hearing rooms, lobbies, and public document rooms.</P> <P>(B) Offices of senior officials.</P> <P>(C) Official VA distinguishing flags, adopted and utilized pursuant to paragraph (e)(2) of this section.</P> <P>(D) Official awards, certificates, medals, and plaques.</P> <P>(E) Motion picture film, video tape, and other audiovisual media prepared by or for VA and attributed thereto.</P> <P>(F) Official prestige publications which represent the achievements or mission of VA.</P> <P>(G) For other similar official purposes.</P> <P>(H) For such other purposes as will tend to advance the aims, purposes and mission of the Department of Veterans Affairs as determined by the Secretary or Deputy Secretary.</P> <P>(iii) Reproductions may be used only on:</P> <P>(A) VA letterhead stationery.</P> <P>(B) Official VA identification cards and security credentials.</P> <P>(C) Business cards for VA employees.</P> <P>(D) Official VA signs.</P> <P>(E) Official publications or graphics issued by and attributed to VA, or joint statements of VA with one or more Federal agencies, State or local governments, or foreign governments.</P> <P>(F) Official awards, certificates, and medals.</P> <P>(G) Motion picture film, video tape, and other audiovisual media prepared by and for VA and attributed thereto.</P> <P>(H) For other similar official purposes.<PRTPAGE P="11"/> </P> <P>(I) For such other purposes as will tend to advance the aims, purposes and mission of the Department of Veterans Affairs as determined by the Secretary or Deputy Secretary.</P> <P>(iv) Use of the official seal and embossed seals:</P> <P>(A) Embossed seals may be used only on VA legal documents, including interagency or intergovernmental agreements with States, foreign patent applications, and similar official documents.</P> <P>(B) The official seal may be used only for those purposes related to the conduct of Departmental affairs in furtherance of the VA mission.</P> <P>(e) <E T="03">Distinguishing flag.</E> (1) Description of distinguishing flag.</P> <P>(i) The base or field of the flag shall be blue and a replica of the official seal shall appear on both sides thereof.</P> <P>(ii) A Class 1 flag shall be of nylon banner, measure 4′4″ on the hoist by 5′6″ on the fly, exclusive of heading and hems, and be fringed on three edges with nylon fringe, 2<FR>1/2</FR>″ wide.</P> <P>(iii) A Class 2 flag shall be of nylon banner, measure 3′ on the hoist by 5′ on the fly, exclusive of heading and hems, and be fringed on three edges with nylon fringe, 2<FR>1/2</FR>″ wide.</P> <P>(iv) Each flag shall be manufactured in accordance with Department of Veterans Affairs Specification X-497G. The replica of the official seal shall be screen printed or embroidered on both sides.</P> <P>(2) Use of distinguishing flag. (i) VA distinguishing flags may be used only:</P> <P>(A) In the offices of the Secretary, Deputy Secretary, Assistant Secretaries, Deputy Assistant Secretaries and heads of field locations designated below:</P> <P>(<E T="03">1</E>) Regional Offices.</P> <P>(<E T="03">2</E>) Medical Centers and Outpatient Clinics.</P> <P>(<E T="03">3</E>) Domiciliaries.</P> <P>(<E T="03">4</E>) Marketing Centers and Supply Depots.</P> <P>(<E T="03">5</E>) Data Processing Centers.</P> <P>(<E T="03">6</E>) National Cemetery Offices.</P> <P>(<E T="03">7</E>) Other locations as designated by the Deputy Assistant Secretary for Administration.</P> <P>(B) At official VA ceremonies.</P> <P>(C) In Department auditoriums, official presentation rooms, hearing rooms, lobbies, public document rooms, and in non-VA facilities in connection with events or displays sponsored by VA, and public appearances of VA officials.</P> <P>(D) On or in front of VA installation buildings.</P> <P>(E) Other such official VA purposes or purposes as will tend to advance the aims, purposes and mission of the Department of Veterans Affairs as determined by the Deputy Assistant Secretary for Administration.</P> <P>(f) <E T="03">Unauthorized uses of the seal and flag.</E> (1) The official seal, replicas, reproductions, embossed seals, and the distinguished flag shall not be used, except as authorized by the Secretary or Deputy Secretary, in connection with:</P> <P>(i) Contractor-operated facilities.</P> <P>(ii) Souvenir or novelty items.</P> <P>(iii) Toys or commercial gifts or premiums.</P> <P>(iv) Letterhead design, except on official Departmental stationery.</P> <P>(v) Matchbook covers, calendars and similar items.</P> <P>(vi) Civilian clothing or equipment.</P> <P>(vii) Any article which may disparage the seal or flag or reflect unfavorably upon VA.</P> <P>(viii) Any manner which implies Departmental endorsement of commercial products or services, or of the commercial user's policies or activities.</P> <P>(2) Penalties for unauthorized use. Any person who uses the distinguishing flag, or the official seal, replicas, reproductions or embossed seals in a manner inconsistent with this section shall be subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017, providing penalties for their wrongful use, as applicable.</P> <SECAUTH>(Authority: 38 U.S.C. 302, 38 U.S.C. 501)</SECAUTH> <CITA>[55 FR 49518, Nov. 29, 1990]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">The United States Flag for Burial Purposes</HD> <SECTION> <SECTNO>§ 1.10</SECTNO> <SUBJECT>Eligibility for and disposition of the United States flag for burial purposes.</SUBJECT> <P>(a) <E T="03">Eligibility for burial flags</E>—(1) <E T="03">Persons eligible.</E> (i) A veteran of any war, of Mexican border service, or of service after January 31, 1955, discharged or released from active duty under conditions other than dishonorable. (For the <PRTPAGE P="12"/>purpose of this section, the term <E T="03">Mexican border service</E> means active military, naval, or air service during the period beginning on January 1, 1911, and ending on April 5, 1917, in Mexico, on the borders thereof, or in the waters adjacent thereto.)</P> <P>(ii) A peacetime veteran discharged or released, before June 27, 1950, from the active military, naval, or air service, under conditions other than dishonorable, after serving at least one enlistment, or for a disability incurred or aggravated in line of duty.</P> <P>(iii) Any person who has died while in military or naval service of the United States after May 27, 1941. This subdivision authorizes and requires the furnishing of a flag only where the military or naval service does not furnish a flag immediately. The only cases wherein a flag is not supplied immediately are those of persons whose remains are interred outside the continental limits of the United States, or whose remains are not recovered or are recovered and not identified.</P> <P>(iv) Any person who served in the organized military forces of the Commonwealth of the Philippines while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President of the United States, dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, and who dies after separation from such service under conditions other than dishonorable, on or after April 25, 1951. </P> <PARAUTH>(Authority: 38 U.S.C. 107(a))</PARAUTH> <P>(v) Any deceased member or former member of the Selected Reserve (as described in section 10143 of title 10) who is not otherwise eligible for a flag under this section or section 1482(a) of title 10 and who:</P> <P>(A) Completed at least one enlistment as a member of the Selected Reserve or, in the case of an officer, completed the period of initial obligated service as a member of the Selected Reserve;</P> <P>(B) Was discharged before completion of the person's initial enlistment as a member of the Selected Reserve or, in the case of an officer, period of initial obligated service as a member of the Selected Reserve, for a disability incurred or aggravated in the line of duty; or</P> <P>(C) Died while a member of the Selected Reserve. </P> <PARAUTH>(Authority: 38 U.S.C. 2301(f)(1))</PARAUTH> <P>(b) <E T="03">Disposition of burial flags.</E> (1) When a flag is actually used to drape the casket of a deceased veteran, it must be delivered to the next of kin following interment. Where the flag is not claimed by the next of kin it may be given upon request to a close friend or associate of the deceased veteran. Such action will constitute final and conclusive determination of rights under this section. (38 U.S.C. 2301)</P> <P>(2) The phrase <E T="03">next of kin</E> for the purpose of disposing of the flag used for burial purposes is defined as follows, with preference to entitlement in the order listed:</P> <P>(i) Widow or widower.</P> <P>(ii) Children, according to age (minor child may be issued a flag on application signed by guardian).</P> <P>(iii) Parents, including adoptive, stepparents, and foster parents.</P> <P>(iv) Brothers or sisters, including brothers or sisters of the halfblood.</P> <P>(v) Uncles or aunts.</P> <P>(vi) Nephews or nieces.</P> <P>(vii) Others—cousins, grandparents, etc. (but not in-laws).</P> <P>(3) The phrase <E T="03">close friend or associate</E> for the purpose of disposing of the burial flag means any person who because of his or her relationship with the deceased veteran arranged for the burial or assisted in the burial arrangements. In the absence of a person falling in either of these categories, any person who establishes by evidence that he or she was a close friend or associate of the veteran may be furnished the burial flag. Where more than one request for the burial flag is received and each is accompanied by satisfactory evidence of relationship or association, the head of the field facility having jurisdiction of the burial flag quota will determine which applicant is the one <PRTPAGE P="13"/>most equitably entitled to the burial flag.</P> <SECAUTH>(Authority: 72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)</SECAUTH> <CITA>[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24 FR 10106, Dec. 15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27, 1977; 66 FR 27598, May 18, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Quarters for Department of Veterans Affairs Employees Overseas</HD> <SECTION> <SECTNO>§ 1.11</SECTNO> <SUBJECT>Quarters for Department of Veterans Affairs employees in Government-owned or -rented buildings overseas.</SUBJECT> <P>Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee of the Department of Veterans Affairs permanently stationed in a foreign country may be furnished, without cost to him or her, living quarters, including heat, fuel, and light, in a Government-owned or -rented building. When in the interest of the service and when administratively feasible, an agreement may be entered into by the Under Secretary for Benefits or designee with another Federal agency, which is authorized to furnish quarters, to provide such quarters for Department of Veterans Affairs employees under the provisions of 31 U.S.C. 686. Quarters provided will be in lieu of any living quarters allowance to which the employee may otherwise be entitled.</P> <SECAUTH>(Authority: 72 Stat. 1114; 38 U.S.C. 501)</SECAUTH> <CITA>[33 FR 362, Jan. 10, 1968]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Program Evaluation</HD> <SECTION> <SECTNO>§ 1.15</SECTNO> <SUBJECT>Standards for program evaluation.</SUBJECT> <P>(a) The Department of Veterans Affairs will evaluate all programs authorized under title 38 U.S.C. These evaluations will be conducted so as to determine each program's effectiveness in achieving its stated goals and in achieving such goals in relation to their cost. In addition, these evaluations will determine each program's impact on related programs and its structure and mechanism for delivery of services. All programs will be evaluated on a continuing basis and all evaluations will be conducted by Department of Veterans Affairs staff assigned to an organizational entity other than those responsible for program administration. These evaluations will be conducted with sufficient frequency to allow for an assessment of the continued effectiveness of the programs.</P> <P>(b) The program evaluation will be designed to determine if the existing program supports the intent of the law. A program evaluation must identify goals and objectives that support this intent, contain a method to measure fulfillment of the objectives, ascertain the degree to which goals and objectives are met, and report the findings and conclusions to Congress, as well as make them available to the public.</P> <P>(c) The goals must be clear, specific, and measurable. To be clear they must be readily understood, free from doubt or confusion, and specific goals must be explicitly set forth. They must be measurable by objective means. These means can include use of existing record systems, observations, and information from other sources.</P> <P>(d) All program evaluations require a detailed evaluation plan. The evaluation plan must clearly state the objectives of the program evaluation, the methodology to be used, resources to be committed, and a timetable of major phases.</P> <P>(e) Each program evaluation must be objective. It must report the accomplishments as well as the shortcomings of the program in an unbiased way. The program evaluation must have findings that give decision-makers information which is of a level of detail and importance to enable decisions to be made affecting either direction or operation. The information in the program evaluation must be timely, and must contain information of sufficient currency that decisions based on the data in the evaluation can be made with a high degree of confidence in the data.</P> <P>(f) Each program evaluation requires a systematic research design to collect the data necessary to measure the objectives. This research design should conform to the following:</P> <P>(1) <E T="03">Rationale.</E> The research design for each evaluation should contain a specific rationale and should be structured to determine possible cause and effect relationships.</P> <P>(2) <E T="03">Relevancy.</E> It must deal with issues currently existing within the <PRTPAGE P="14"/>program, within the Department, and within the environment in which the program operates.</P> <P>(3) <E T="03">Validity.</E> The degree of statistical validity should be assessed within the research design. Alternatives include an assessment of cost of data collection vs. results necessary to support decisions.</P> <P>(4) <E T="03">Reliability.</E> Use of the same research design by others should yield the same findings.</P> <P>(g) The final program evaluation report will be reviewed for comments and concurrence by relevant organizations within the Department of Veterans Affairs, but in no case should this review unreasonably delay the results of the evaluation. Where disagreement exists, the dissenting organization's position should be summarized for a decision by the Secretary.</P> <P>(h) The final program evaluation report will be forwarded, with approved recommendations, to the concerned organization. An action plan to accomplish the approved recommendations will be forwarded for evaluation by the evaluating entity.</P> <P>(i) Program evaluation results should be integrated to the maximum extent possible into Department of Veterans Affairs plans and budget submissions to ensure continuity with other Department of Veterans Affairs management processes.</P> <SECAUTH>(Authority: 38 U.S.C. 527)</SECAUTH> <CITA>[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.17</SECTNO> <SUBJECT>Evaluation of studies relating to health effects of dioxin and radiation exposure.</SUBJECT> <P>(a) From time to time, the Secretary shall publish evaluations of scientific or medical studies relating to the adverse health effects of exposure to a herbicide containing 2, 3, 7, 8 tetrachlorodibenzo-p-dioxin (dioxin) and/or exposure to ionizing radiation in the “Notices” section of the <E T="04">Federal Register.</E> </P> <P>(b) Factors to be considered in evaluating scientific studies include:</P> <P>(1) Whether the study's findings are statistically significant and replicable.</P> <P>(2) Whether the study and its findings have withstood peer review.</P> <P>(3) Whether the study methodology has been sufficiently described to permit replication of the study.</P> <P>(4) Whether the study's findings are applicable to the veteran population of interest.</P> <P>(5) The views of the appropriate panel of the Scientific Council of the Veterans' Advisory Committee on Environmental Hazards.</P> <P>(c) When the Secretary determines, based on the evaluation of scientific or medical studies and after receiving the advice of the Veterans' Advisory Committee on Environmental Hazards and applying the reasonable doubt doctrine as set forth in paragraph (d)(1) of this section, that a significant statistical association exists between any disease and exposure to a herbicide containing dioxin or exposure to ionizing radiation, § 3.311a or § 3.311b of this title, as appropriate, shall be amended to provide guidelines for the establishment of service connection.</P> <P>(d)(1) For purposes of paragraph (c) of this section a <E T="03">significant statistical association</E> shall be deemed to exist when the relative weights of valid positive and negative studies permit the conclusion that it is at least as likely as not that the purported relationship between a particular type of exposure and a specific adverse health effect exists.</P> <P>(2) For purposes of this paragraph a valid study is one which:</P> <P>(i) Has adequately described the study design and methods of data collection, verification and analysis;</P> <P>(ii) Is reasonably free of biases, such as selection, observation and participation biases; however, if biases exist, the investigator has acknowledged them and so stated the study's conclusions that the biases do not intrude upon those conclusions; and</P> <P>(iii) Has satisfactorily accounted for known confounding factors.</P> <P>(3) For purposes of this paragraph a valid positive study is one which satisfies the criteria in paragraph (d)(2) of this section and whose findings are statistically significant at a probability level of .05 or less with proper accounting for multiple comparisons and subgroup analyses.</P> <P>(4) For purposes of this paragraph a valid negative study is one which satisfies the criteria in paragraph (d)(2) of <PRTPAGE P="15"/>this section and has sufficient statistical power to detect an association between a particular type of exposure and a specific adverse health effect if such an association were to exist.</P> <P>(e) For purposes of assessing the relative weights of valid positive and negative studies, other studies affecting epidemiological assessments including case series, correlational studies and studies with insufficient statistical power as well as key mechanistic and animal studies which are found to have particular relevance to an effect on human organ systems may also be considered.</P> <P>(f) Notwithstanding the provisions of paragraph (d) of this section, a <E T="03">significant statistical association</E> may be deemed to exist between a particular exposure and a specific disease if, in the Secretary's judgment, scientific and medical evidence on the whole supports such a decision.</P> <SECAUTH>(Authority: 38 U.S.C. 501; Pub. L. 98-542)</SECAUTH> <CITA>[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Referrals of Information Regarding Criminal Violations</HD> <SECTION> <SECTNO>§ 1.200</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This subpart establishes a duty upon and sets forth the mechanism for VA employees to report information about actual or possible criminal violations to appropriate law enforcement entities.</P> <SECAUTH>(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)</SECAUTH> <CITA>[68 FR 17550, Apr. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.201</SECTNO> <SUBJECT>Employee's duty to report.</SUBJECT> <P>All VA employees with knowledge or information about actual or possible violations of criminal law related to VA programs, operations, facilities, contracts, or information technology systems shall immediately report such knowledge or information to their supervisor, any management official, or directly to the Office of Inspector General.</P> <SECAUTH>(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)</SECAUTH> <CITA>[68 FR 17550, Apr. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.203</SECTNO> <SUBJECT>Information to be reported to VA Police.</SUBJECT> <P>Information about actual or possible violations of criminal laws related to VA programs, operations, facilities, or involving VA employees, where the violation of criminal law occurs on VA premises, will be reported by VA management officials to the VA police component with responsibility for the VA station or facility in question. If there is no VA police component with jurisdiction over the offense, the information will be reported to Federal, state or local law enforcement officials, as appropriate.</P> <SECAUTH>(Authority: 38 U.S.C. 902)</SECAUTH> <CITA>[68 FR 17550, Apr. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.204</SECTNO> <SUBJECT>Information to be reported to the Office of Inspector General.</SUBJECT> <P>Criminal matters involving felonies will also be immediately referred to the Office of Inspector General, Office of Investigations. VA management officials with information about possible criminal matters involving felonies will ensure and be responsible for prompt referrals to the OIG. Examples of felonies include but are not limited to, theft of Government property over $1000, false claims, false statements, drug offenses, crimes involving information technology systems and serious crimes against the person, <E T="03">i.e.</E>, homicides, armed robbery, rape, aggravated assault and serious physical abuse of a VA patient.</P> <SECAUTH>(Authority: 5 U.S.C. App. 3)</SECAUTH> <CITA>[68 FR 17550, Apr. 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.205</SECTNO> <SUBJECT>Notification to the Attorney General or United States Attorney's Office.</SUBJECT> <P>VA police and/or the OIG, whichever has primary responsibility within VA for investigation of the offense in question, will be responsible for notifying the appropriate United States Attorney's Office, pursuant to 28 U.S.C. 535.</P> <SECAUTH>(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)</SECAUTH> <CITA>[68 FR 17550, Apr. 10, 2003]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="16"/> <HD SOURCE="HED">Security and Law Enforcement at Department of Veterans Affairs Facilities</HD> <SECTION> <SECTNO>§ 1.218</SECTNO> <SUBJECT>Security and law enforcement at VA facilities.</SUBJECT> <P>(a) <E T="03">Authority and rules of conduct.</E> Pursuant to 38 U.S.C. 901, the following rules and regulations apply at all property under the charge and control of VA (and not under the charge and control of the General Services Administration) and to all persons entering in or on such property. The head of the facility is charged with the responsibility for the enforcement of these rules and regulations and shall cause these rules and regulations to be posted in a conspicuous place on the property.</P> <P>(1) <E T="03">Closing property to public.</E> The head of the facility, or designee, shall establish visiting hours for the convenience of the public and shall establish specific hours for the transaction of business with the public. The property shall be closed to the public during other than the hours so established. In emergency situations, the property shall be closed to the public when reasonably necessary to ensure the orderly conduct of Government business. The decision to close a property during an emergency shall be made by the head of the facility or designee. The head of the facility or designee shall have authority to designate areas within a facility as closed to the public.</P> <P>(2) <E T="03">Recording presence.</E> Admission to property during periods when such property is closed to the public will be limited to persons authorized by the head of the facility or designee. Such persons may be required to sign a register and/or display identification documents when requested to do so by VA police, or other authorized individual. No person, without authorization, shall enter upon or remain on such property while the property is closed. Failure to leave such premises by unauthorized persons shall constitute an offense under this paragraph.</P> <P>(3) <E T="03">Preservation of property.</E> The improper disposal of rubbish on property; the spitting on the property; the creation of any hazard on property to persons or things; the throwing of articles of any kind from a building; the climbing upon the roof or any part of the building, without permission; or the willful destruction, damage, or removal of Government property or any part thereof, without authorization, is prohibited. The destruction, mutilation, defacement, injury, or removal of any monument, gravestone, or other structure within the limits of any national cemetery is prohibited.</P> <P>(4) <E T="03">Conformity with signs and emergency conditions.</E> The head of the facility, or designee, shall have authority to post signs of a prohibitory and directory nature. Persons, in and on property, shall comply with such signs of a prohibitory or directory nature, and during emergencies, with the direction of police authorities and other authorized officials. Tampering with, destruction, marring, or removal of such posted signs is prohibited.</P> <P>(5) <E T="03">Disturbances.</E> Conduct on property which creates loud or unusual noise; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; which otherwise impedes or disrupts the performance of official duties by Government employees; which prevents one from obtaining medical or other services provided on the property in a timely manner; or the use of loud, abusive, or otherwise improper language; or unwarranted loitering, sleeping, or assembly is prohibited. In addition to measures designed to secure voluntary terminations of violations of this paragraph the head of the facility or designee may cause the issuance of orders for persons who are creating a disturbance to depart the property. Failure to leave the premises when so ordered constitutes a further disturbance within the meaning of this rule, and the offender is subject to arrest and removal from the premises.</P> <P>(6) <E T="03">Gambling.</E> Participating in games for money or for tangible or intangible things, or the operating of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets, in or on property is prohibited.</P> <P>(7) <E T="03">Alcoholic beverages and narcotics.</E> Operating a motor vehicle on property by a person under the influence of alcoholic beverages, narcotic drugs, <PRTPAGE P="17"/>hallucinogens, marijuana, barbiturates, or amphetamines is prohibited. Entering property under the influence of any narcotic drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic beverage (unless prescribed by a physician) is prohibited. The use on property of any narcotic drug, hallucinogen, marijuana, barbiturate, or amphetamine (unless prescribed by a physician) is prohibited. The introduction or possession of alcoholic beverages or any narcotic drug, hallucinogen, marijuana, barbiturate, and amphetamine on property is prohibited, except for liquor or drugs prescribed for use by medical authority for medical purposes. Provided such possession is consistent with the laws of the State in which the facility is located, liquor may be used and maintained in quarters assigned to employees as their normal abode, and away from the abode with the written consent of the head of the facility which specifies a special occasion for use and limits the area and period for the authorized use.</P> <P>(8) <E T="03">Soliciting, vending, and debt collection.</E> Soliciting alms and contributions, commercial soliciting and vending of all kinds, displaying or distributing commercial advertising, or collecting private debts in or on property is prohibited. This rule does not apply to (i) national or local drives for funds for welfare, health, or other purposes as authorized under Executive Order 12353, Charitable Fund Raising (March 23, 1982), as amended by Executive Order 12404 (February 10, 1983), and regulations issued by the Office of Personnel Management implementing these Executive Orders; (ii) concessions or personal notices posted by employees on authorized bulletin boards; and (iii) solicitation of labor organization membership or dues under 5 U.S.C. chapter 71.</P> <P>(9) <E T="03">Distribution of handbills.</E> The distributing of materials such as pamphlets, handbills, and/or flyers, and the displaying of placards or posting of materials on bulletin boards or elsewhere on property is prohibited, except as authorized by the head of the facility or designee or when such distributions or displays are conducted as part of authorized Government activities.</P> <P>(10) <E T="03">Photographs for news, advertising, or commercial purposes.</E> Photographs for advertising or commercial purposes may be taken only with the written consent of the head of the facility or designee. Photographs for news purposes may be taken at entrances, lobbies, foyers, or in other places designated by the head of the facility or designee.</P> <P>(11) <E T="03">Dogs and other animals.</E> Dogs and other animals, except seeing-eye dogs, shall not be brought upon property except as authorized by the head of the facility or designee.</P> <P>(12) <E T="03">Vehicular and pedestrian traffic.</E> Drivers of all vehicles in or on property shall drive in a careful and safe manner at all times and shall comply with the signals and directions of police and all posted traffic signs. The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property is prohibited; parking in unauthorized locations or in locations reserved for other persons or contrary to the direction of posted signs is prohibited. Creating excessive noise on hospital or cemetery premises by muffler cut out, the excessive use of a horn, or other means is prohibited. Operation of a vehicle in a reckless or unsafe manner, drag racing, bumping, overriding curbs, or leaving the roadway is prohibited.</P> <P>(13) <E T="03">Weapons and explosives.</E> No person while on property shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes.</P> <P>(14) <E T="03">Demonstrations.</E> (i) All visitors are expected to observe proper standards of decorum and decency while on VA property. Toward this end, any service, ceremony, or demonstration, except as authorized by the head of the facility or designee, is prohibited. Jogging, bicycling, sledding and other forms of physical recreation on cemetery grounds is prohibited.</P> <P>(ii) For the purpose of the prohibition expressed in this paragraph, unauthorized demonstrations or services shall be defined as, but not limited to, picketing, or similar conduct on VA property; any oration or similar conduct to assembled groups of people, unless the oration is part of an authorized service; the display of any placards, banners, or <PRTPAGE P="18"/>foreign flags on VA property unless approved by the head of the facility or designee; disorderly conduct such as fighting, threatening, violent, or tumultuous behavior, unreasonable noise or coarse utterance, gesture or display or the use of abusive language to any person present; and partisan activities, i.e., those involving commentary or actions in support of, or in opposition to, or attempting to influence, any current policy of the Government of the United States, or any private group, association, or enterprise.</P> <P>(15) <E T="03">Key security.</E> The head of the facility of designee, will determine which employees, by virtue of their duties, shall have access to keys or barrier-card keys which operate locks to rooms or areas on the property. The unauthorized possession, manufacture, and/or use of such keys or barrier cards is prohibited. The surreptitious opening or attempted opening of locks or card-operated barrier mechanisms is prohibited.</P> <P>(16) <E T="03">Sexual misconduct.</E> Any act of sexual gratification on VA property involving two or more persons, who do not reside in quarters on the property, is prohibited. Acts of prostitution or solicitation for acts of prostitution on VA property is prohibited. For the purposes of this paragraph, an act of prostitution is defined as the performance or the offer or agreement to perform any sexual act for money or payment.</P> <P>(b) <E T="03">Schedule of offenses and penalties.</E> Conduct in violation of the rules and regulations set forth in paragraph (a) of this section subjects an offender to arrest and removal from the premises. Whomever shall be found guilty of violating these rules and regulations while on any property under the charge and control of VA is subject to a fine as stated in the schedule set forth herein or, if appropriate, the payment of fixed sum in lieu of appearance (forfeiture of collateral) as may be provided for in rules of the United States District Court. Violations included in the schedule of offenses and penalties may also subject an offender to a term of imprisonment of not more than six months, as may be determined appropriate by a magistrate or judge of the United States District Court:</P> <P>(1) Improper disposal of rubbish on property, $200.</P> <P>(2) Spitting on property, $25.</P> <P>(3) Throwing of articles from a building or the unauthorized climbing upon any part of a building, $50.</P> <P>(4) Willful destruction, damage, or removal of Government property without authorization, $500.</P> <P>(5) Defacement, destruction, mutilation or injury to, or removal, or disturbance of, gravemarker or headstone, $500.</P> <P>(6) Failure to comply with signs of a directive and restrictive nature posted for safety purposes, $50.</P> <P>(7) Tampering with, removal, marring, or destruction of posted signs, $150.</P> <P>(8) Entry into areas posted as closed to the public or others (trespass), $50.</P> <P>(9) Unauthorized demonstration or service in a national cemetery or on other VA property, $250.</P> <P>(10) Creating a disturbance during a burial ceremony, $250.</P> <P>(11) Disorderly conduct which creates loud, boisterous, and unusual noise, or which obstructs the normal use of entrances, exits, foyers, offices, corridors, elevators, and stairways or which tends to impede or prevent the normal operation of a service or operation of the facility, $250.</P> <P>(12) Failure to depart premises by unauthorized persons, $50.</P> <P>(13) Unauthorized loitering, sleeping or assembly on property, $50.</P> <P>(14) Gambling-participating in games of chance for monetary gain or personal property; the operation of gambling devices, a pool or lottery; or the taking or giving of bets, $200.</P> <P>(15) Operation of a vehicle under the influence of alcoholic beverages or nonprescribed narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $500.</P> <P>(16) Entering premises under the influence of alcoholic beverages or narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines, $200.</P> <P>(17) Unauthorized use on property of alcoholic beverages or narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $300.</P> <P>(18) Unauthorized introduction on VA controlled property of alcoholic beverages or narcotic drugs, <PRTPAGE P="19"/>hallucinogens, marijuana, barbiturates, or amphetamines or the unauthorized giving of same to a patient or beneficiary, $500.</P> <P>(19) Unauthorized solicitation of alms and contributions on premises, $50.</P> <P>(20) Commercial soliciting or vending, or the collection of private debts on property, $50.</P> <P>(21) Distribution of pamphlets, handbills, and flyers, $25.</P> <P>(22) Display of placards or posting of material on property, $25.</P> <P>(23) Unauthorized photography on premises, $50.</P> <P>(24) Failure to comply with traffic directions of VA police, $25.</P> <P>(25) Parking in spaces posted as reserved for physically disabled persons, $50.</P> <P>(26) Parking in no-parking areas, lanes, or crosswalks so posted or marked by yellow borders or yellow stripes, $25.</P> <P>(27) Parking in emergency vehicle spaces, areas and lanes bordered in red or posted as EMERGENCY VEHICLES ONLY or FIRE LANE, or parking within 15 feet of a fire hydrant, $50.</P> <P>(28) Parking within an intersection or blocking a posted vehicle entrance or posted exit lane, $25.</P> <P>(29) Parking in spaces posted as reserved or in excess of a posted time limit, $15.</P> <P>(30) Failing to come to a complete stop at a STOP sign, $25.</P> <P>(31) Failing to yield to a pedestrian in a marked and posted crosswalk, $25.</P> <P>(32) Driving in the wrong direction on a posted one-way street, $25.</P> <P>(33) Operation of a vehicle in a reckless or unsafe manner, too fast for conditions, drag racing, overriding curbs, or leaving the roadway, $100.</P> <P>(34) Exceeding posted speed limits:</P> <P>(i) By up to 10 mph, $25.</P> <P>(ii) By up to 20 mph, $50.</P> <P>(iii) By over 20 mph, $100.</P> <P>(35) Creating excessive noise in a hospital or cemetery zone by muffler cut out, excessive use of a horn, or other means, $50.</P> <P>(36) Failure to yield right of way to other vehicles, $50.</P> <P>(37) Possession of firearms, carried either openly or concealed, whether loaded or unloaded (except by Federal or State law enforcement officers on official business, $500.</P> <P>(38) Introduction or possession of explosives, or explosive devices which fire a projectile, ammunition, or combustibles, $500.</P> <P>(39) Possession of knives which exceed a blade length of 3 inches; switchblade knives; any of the variety of hatchets, clubs and hand-held weapons; or brass knuckles, $300.</P> <P>(40) The unauthorized possession of any of the variety of incapacitating liquid or gas-emitting weapons, $200.</P> <P>(41) Unauthorized possession, manufacture, or use of keys or barrier card-type keys to rooms or areas on the property, $200.</P> <P>(42) The surreptitious opening, or attempted opening, of locks or card-operated barrier mechanisms on property, $500.</P> <P>(43) Soliciting for, or the act of, prostitution, $250.</P> <P>(44) Any unlawful sexual activity, $250.</P> <P>(45) Jogging, bicycling, sledding or any recreational physical activity conducted on cemetery grounds, $50.</P> <P>(c) <E T="03">Enforcement procedures.</E> (1) VA administration directors will issue policies and operating procedures governing the proper exercise of arrest and other law enforcement actions, and limiting the carrying and use of weapons by VA police officers. VA police officers found qualified under respective VA administration directives and duly appointed heads of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce these rules and regulations and other Federal laws on VA property in accordance with the policies and operating procedures issued by respective VA administration directors and under the direction of the head of the facility.</P> <P>(2) VA administration directors will prescribe training for VA police officers of the scope and duration necessary to assure the proper exercise of the law enforcement and arrest authority vested in them and to assure their abilities in the safe handling of situations involving patients and the public in general. VA police officers will successfully complete prescribed training in law enforcement procedures and the safe handling of patients as a condition <PRTPAGE P="20"/>of their retention of statutory law enforcement and arrest authority.</P> <P>(3) Nothing contained in the rules and regulations set forth in paragraph (a) of this section shall be construed to abrogate any other Federal laws or regulations, including assimilated offenses under 18 U.S.C. 13, or any State or local laws and regulations applicable to the area in which the property is situated.</P> <SECAUTH>(Authority: 38 U.S.C. 901)</SECAUTH> <CITA>[50 FR 29226, July 18, 1985]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Parking Fees at VA Medical Facilities</HD> <SECTION> <SECTNO>§ 1.300</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>Sections 1.300 through 1.303 prescribe policies and procedures for establishing parking fees for the use of Department of Veterans Affairs controlled parking spaces at VA medical facilities.</P> <SECAUTH>(Authority: 38 U.S.C. 501, 8109)</SECAUTH> <CITA>[53 FR 25490, July 7, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.301</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in §§ 1.300 through 1.303 of this title:</P> <P>(a) <E T="03">Secretary</E> means the Secretary of Veterans Affairs.</P> <P>(b) <E T="03">Eligible person</E> means any individual to whom the Secretary is authorized to furnish medical examination or treatment.</P> <P>(c) <E T="03">Garage</E> means a structure or part of a structure in which vehicles may be parked.</P> <P>(d) <E T="03">Medical facility</E> means any facility or part thereof which is under the jurisdiction of the Secretary for the provision of health-care services, including any necessary buildings and structures, garage or parking facility.</P> <P>(e) <E T="03">Parking facilities</E> includes all surface and garage parking spaces at a VA medical facility.</P> <P>(f) <E T="03">Volunteer worker</E> means an individual who performs services, without compensation, under the auspices of VA Voluntary Service (VAVS) at a VA medical facility, for the benefit of veterans receiving care at that medical facility.</P> <SECAUTH>(Authority: 38 U.S.C. 8109)</SECAUTH> <CITA>[53 FR 25490, July 7, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.302</SECTNO> <SUBJECT>Applicability and scope.</SUBJECT> <P>(a) The provisions of §§ 1.300 through 1.303 apply to VA medical facility parking facilities in the United States, its territories and possessions, and the Commonwealth of Puerto Rico, and to such parking facilities for the use of VA medical facilities jointly shared by VA and another Federal agency when the facility is operated by the VA. Sections 1.300 through 1.303 apply to all users of those parking facilities. Fees shall be assessed and collected at medical facilities where parking garages are constructed, acquired, or altered at a cost exceeding $500,000 (or, in the case of acquisition by lease, $100,000 per year). The Secretary, in the exercise of official discretion, may also determine that parking fees shall be charged at any other VA medical facility.</P> <P>(b) All fees established shall be reasonable under the circumstances and shall cover all parking facilities used in connection with such VA medical facility.</P> <SECAUTH>(Authority: 38 U.S.C. 8109)</SECAUTH> <CITA>[53 FR 25490, July 7, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.303</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) <E T="03">General.</E> Parking spaces at VA medical facilities shall only be provided under the following conditions:</P> <P>(1) VA and its employees shall not be liable for any damages to vehicles (or their contents) parked in VA parking facilities, unless such damages are directly caused by such employees acting in the course of their VA employment.</P> <P>(2) Parking facilities at VA medical facilities shall only be made available at each medical facility for such periods and under such terms as prescribed by the facility director, consistent with §§ 1.300 through 1.303.</P> <P>(3) VA will limit parking facilities at VA medical facilities to the minimum necessary, and administer those parking facilities in full compliance with ridesharing regulations and Federal laws.</P> <P>(b) <E T="03">Fees.</E> (1) As provided in § 1.302, VA will assess VA employees, contractor employees, tenant employees, visitors, and other individuals having business at a VA medical facility where VA <PRTPAGE P="21"/>parking facilities are available, a parking fee for the use of that parking facility. All parking fees shall be set at a rate which shall be equivalent to one-half of the appropriate fair rental value (i.e., monthly, weekly, daily, hourly) for the use of equivalent commercial space in the vicinity of the medical facility, subject to the terms and conditions stated in paragraph (a) of this section. Fair rental value shall include an allowance for the costs of management of the parking facilities. The Secretary will determine the fair market rental value through use of generally accepted appraisal techniques. If the appraisal establishes that there is no comparable commercial rate because of the absence of commercial parking facilities within a two-mile radius of the medical facility, then the rate established shall be not less than the lowest rate charged for parking at the VA medical facility with the lowest established parking fees. Rates established shall be reviewed biannually by the Secretary to reflect any increase or decrease in value as determined by appraisal updating.</P> <P>(2) No parking fees shall be established or collected for parking facilities used by or for vehicles of the following:</P> <P>(i) Volunteer workers in connection with such workers performing services for the benefit of veterans receiving care at the medical facility;</P> <P>(ii) A veteran or an eligible person in connection with such veteran or eligible person receiving examination or treatment;</P> <P>(iii) An individual transporting a veteran or eligible person seeking examination or treatment; and</P> <P>(iv) Federal Government employees using Government owned or leased or private vehicles for official business.</P> <SECAUTH>(Authority: 38 U.S.C. 8109)</SECAUTH> <CITA>[53 FR 25490, July 7, 1988]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Release of Information From Department of Veterans Affairs (VA) Records Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia</HD> </SUBJGRP> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Sections 1.460 through 1.499 of this part concern the confidentiality of information relating to drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia in VA records and are applicable in combination with other regulations pertaining to the release of information from VA records. Sections 1.500 through 1.527, Title 38, Code of Federal Regulations, implement the provisions of 38 U.S.C. §§ 5701 and 5702. Sections 1.550 through 1.559 implement the provisions of 5 U.S.C. § 552 (The Freedom of Information Act). Sections 1.575 through 1.584 implement the provisions of 5 U.S.C. § 552a (The Privacy Act of 1974).</P> <P>The provisions of §§ 1.460 through 1.499 of this part pertain to any program or activity, including education, treatment, rehabilitation or research, which relates to drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia. The statutory authority for the drug abuse provisions and alcoholism or alcohol abuse provisions of §§ 1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the Veterans Omnibus Health Care Act of 1976 (38 U.S.C. §§ 7331 through 7334), the authority for the human immunodeficiency virus provisions is Sec. 121 of Pub. L. 100-322, the Veterans' Benefits and Services Act of 1988 (38 U.S.C. § 7332); the authority for the sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans Health Care Expansion Act of 1973 (38 U.S.C. §§ 1751-1754).</P> </NOTE> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 1751-1754 and 7331-7334.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>60 FR 63929, Dec. 13, 1995, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.460</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of §§ 1.460 through 1.499 of this part, the following definitions apply:</P> <P> <E T="03">Alcohol abuse.</E> The term “alcohol abuse” means the use of an alcoholic beverage which impairs the physical, mental, emotional, or social well-being of the user.<PRTPAGE P="22"/> </P> <P> <E T="03">Contractor.</E> The term “contractor” means a person who provides services to VA such as data processing, dosage preparation, laboratory analyses or medical or other professional services. Each contractor shall be required to enter into a written agreement subjecting such contractor to the provisions of §§ 1.460 through 1.499 of this part; 38 U.S.C. 5701 and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).</P> <P> <E T="03">Diagnosis.</E> The term “diagnosis” means any reference to an individual's alcohol or drug abuse or to a condition which is identified as having been caused by that abuse or any reference to sickle cell anemia or infection with the human immunodeficiency virus which is made for the purpose of treatment or referral for treatment. A diagnosis prepared for the purpose of treatment or referral for treatment but which is not so used is covered by §§ 1.460 through 1.499 of this part. These regulations do not apply to a diagnosis of drug overdose or alcohol intoxication which clearly shows that the individual involved is not an alcohol or drug abuser (e.g., involuntary ingestion of alcohol or drugs or reaction to a prescribed dosage of one or more drugs).</P> <P> <E T="03">Disclose or disclosure.</E> The term “disclose” or “disclosure” means a communication of patient identifying information, the affirmative verification of another person's communication of patient identifying information, or the communication of any information from the record of a patient who has been identified.</P> <P> <E T="03">Drug abuse.</E> The term “drug abuse” means the use of a psychoactive substance for other than medicinal purposes which impairs the physical, mental, emotional, or social well-being of the user.</P> <P> <E T="03">Infection with the human immunodeficiency virus (HIV).</E> The term “infection with the human immunodeficiency virus (HIV)” means the presence of laboratory evidence for human immunodeficiency virus infection. For the purposes of §§ 1.460 through 1.499 of this part, the term includes the testing of an individual for the presence of the virus or antibodies to the virus and information related to such testing (including tests with negative results).</P> <P> <E T="03">Informant.</E> The term “informant” means an individual who is a patient or employee or who becomes a patient or employee at the request of a law enforcement agency or official and who at the request of a law enforcement agency or official observes one or more patients or employees for the purpose of reporting the information obtained to the law enforcement agency or official.</P> <P> <E T="03">Patient.</E> The term “patient” means any individual or subject who has applied for or been given a diagnosis or treatment for drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia and includes any individual who, after arrest on a criminal charge, is interviewed and/or tested in connection with drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia in order to determine that individual's eligibility to participate in a treatment or rehabilitation program. The term patient includes an individual who has been diagnosed or treated for alcoholism, drug abuse, HIV infection, or sickle cell anemia for purposes of participation in a VA program or activity relating to those four conditions, including a program or activity consisting of treatment, rehabilitation, education, training, evaluation, or research. The term “patient” for the purpose of infection with the human immunodeficiency virus or sickle cell anemia, includes one tested for the disease.</P> <P> <E T="03">Patient identifying information.</E> The term “patient identifying information” means the name, address, social security number, fingerprints, photograph, or similar information by which the identity of a patient can be determined with reasonable accuracy and speed either directly or by reference to other publicly available information. The term does not include a number assigned to a patient by a treatment program, if that number does not consist of, or contain numbers (such as social security, or driver's license number) which could be used to identify a patient with reasonable accuracy and speed from sources external to the treatment program.<PRTPAGE P="23"/> </P> <P> <E T="03">Person.</E> The term “person” means an individual, partnership, corporation, Federal, State or local government agency, or any other legal entity.</P> <P> <E T="03">Records.</E> The term “records” means any information received, obtained or maintained, whether recorded or not, by an employee or contractor of VA, for the purpose of seeking or performing VA program or activity functions relating to drug abuse, alcoholism, tests for or infection with the human immunodeficiency virus, or sickle cell anemia regarding an identifiable patient. A program or activity function relating to drug abuse, alcoholism, infection with the human immunodeficiency virus, or sickle cell anemia includes evaluation, treatment, education, training, rehabilitation, research, or referral for one of these conditions. Sections 1.460 through 1.499 of this part apply to a primary or other diagnosis, or other information which identifies, or could reasonably be expected to identify, a patient as having a drug or alcohol abuse condition, infection with the human immunodeficiency virus, or sickle cell anemia (e.g., alcoholic psychosis, drug dependence), but only if such diagnosis or information is received, obtained or maintained for the purpose of seeking or performing one of the above program or activity functions. Sections 1.460 through 1.499 of this part do not apply if such diagnosis or other information is not received, obtained or maintained for the purpose of seeking or performing a function or activity relating to drug abuse, alcoholism, infection with the human immunodeficiency virus, or sickle cell anemia for the patient in question. Whenever such diagnosis or other information, not originally received or obtained for the purpose of obtaining or providing one of the above program or activity functions, is subsequently used in connection with such program or activity functions, those original entries become a “record” and §§ 1.460 through 1.499 of this part thereafter apply to those entries. Segregability: these regulations do not apply to records or information contained therein, the disclosure of which (the circumstances surrounding the disclosure having been considered) could not reasonably be expected to disclose the fact that a patient has been connected with a VA program or activity function relating to drug abuse, alcoholism, infection with the human immunodeficiency virus, or sickle cell anemia.</P> <P>(1) The following are examples of instances whereby records or information related to alcoholism or drug abuse are covered by the provisions of §§ 1.460 through 1.499 of this part:</P> <P>(i) A patient with alcoholic delirium tremens is admitted for detoxification. The patient is offered treatment in a VA alcohol rehabilitation program which he declines.</P> <P>(ii) A patient who is diagnosed as a drug abuser applies for and is provided VA drug rehabilitation treatment.</P> <P>(iii) While undergoing treatment for an unrelated medical condition, a patient discusses with the physician his use and abuse of alcohol. The physician offers VA alcohol rehabilitation treatment which is declined by the patient.</P> <P>(2) The following are examples of instances whereby records or information related to alcoholism or drug abuse are not covered by the provisions of §§ 1.460 through 1.499 of this part:</P> <P>(i) A patient with alcoholic delirium tremens is admitted for detoxification, treated and released with no counseling or treatment for the underlying condition of alcoholism.</P> <P>(ii) While undergoing treatment for an unrelated medical condition, a patient informs the physician of a history of drug abuse fifteen years earlier with no ingestion of drugs since. The history and diagnosis of drug abuse is documented in the hospital summary and no treatment is sought by the patient or offered or provided by VA during the current period of treatment.</P> <P>(iii) While undergoing treatment for injuries sustained in an accident, a patient's medical record is documented to support the judgment of the physician to prescribe certain alternate medications in order to avoid possible drug interactions in view of the patient's enrollment and treatment in a non-VA methadone maintenance program. The patient states that continued treatment and follow-up will be obtained from private physicians and VA treatment for the drug abuse is not <PRTPAGE P="24"/>sought by the patient nor provided or offered by the staff.</P> <P>(iv) A patient is admitted to the emergency room suffering from a possible drug overdose. The patient is treated and released; a history and diagnosis of drug abuse may be documented in the hospital summary. The patient is not offered treatment for the underlying conditions of drug abuse, nor is treatment sought by the patient for that condition.</P> <P> <E T="03">Third party payer.</E> The term “third party payer” means a person who pays, or agrees to pay, for diagnosis or treatment furnished to a patient on the basis of a contractual relationship with the patient or a member of his or her family or on the basis of the patient's eligibility for Federal, State, or local governmental benefits.</P> <P> <E T="03">Treatment.</E> The term “treatment” means the management and care of a patient for drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia, or a condition which is identified as having been caused by one or more of these conditions, in order to reduce or eliminate the adverse effects upon the patient. The term includes testing for the human immunodeficiency virus or sickle cell anemia.</P> <P> <E T="03">Undercover agent.</E> The term “undercover agent” means an officer of any Federal, State, or local law enforcement agency who becomes a patient or employee for the purpose of investigating a suspected violation of law or who pursues that purpose after becoming a patient or becoming employed for other purposes.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.461</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">General</E>—(1) <E T="03">Restrictions on disclosure.</E> The restrictions on disclosure in these regulations apply to any information whether or not recorded, which:</P> <P>(i) Would identify a patient as an alcohol or drug abuser, an individual tested for or infected with the human immunodeficiency virus (HIV), hereafter referred to as HIV, or an individual with sickle cell anemia, either directly, by reference to other publicly available information, or through verification of such an identification by another person; and</P> <P>(ii) Is provided or obtained for the purpose of treating alcohol or drug abuse, infection with the HIV, or sickle cell anemia, making a diagnosis for that treatment, or making a referral for that treatment as well as for education, training, evaluation, rehabilitation and research program or activity purposes.</P> <P>(2) <E T="03">Restriction on use.</E> The restriction on use of information to initiate or substantiate any criminal charges against a patient or to conduct any criminal investigation of a patient applies to any information, whether or not recorded, which is maintained for the purpose of treating drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia, making a diagnosis for that treatment, or making a referral for that treatment as well as for education, training, evaluation, rehabilitation, and research program or activity purposes.</P> <P>(b) <E T="03">Period covered as affecting applicability.</E> The provisions of §§ 1.460 through 1.499 of this part apply to records of identity, diagnosis, prognosis, or treatment pertaining to any given individual maintained over any period of time which, irrespective of when it begins, does not end before March 21, 1972, in the case of diagnosis or treatment for drug abuse; or before May 14, 1974, in the case of diagnosis or treatment for alcoholism or alcohol abuse; or before September 1, 1973, in the case of testing, diagnosis or treatment of sickle cell anemia; or before May 20, 1988, in the case of testing, diagnosis or treatment for an infection with the HIV.</P> <P>(c) <E T="03">Exceptions</E>—(1) <E T="03">Department of Veterans Affairs and Armed Forces.</E> The restrictions on disclosure in §§ 1.460 through 1.499 of this part do not apply to communications of information between or among those components of VA who have a need for the information in connection with their duties in the provision of health care, adjudication of benefits, or in carrying out administrative responsibilities related to those functions, including personnel of the Office of the Inspector General who are conducting audits, evaluations, healthcare inspections, or non-patient <PRTPAGE P="25"/>investigations, or between such components and the Armed Forces, of information pertaining to a person relating to a period when such person is or was subject to the Uniform Code of Military Justice. Information obtained by VA components under these circumstances may be disclosed outside of VA to prosecute or investigate a non-patient only in accordance with § 1.495 of this part. Similarly, the restrictions on disclosure in §§ 1.460 through 1.499 of this part do not apply to communications of information to the Department of Justice or U.S. Attorneys who are providing support in civil litigation or possible litigation involving VA.</P> <P>(2) <E T="03">Contractor.</E> The restrictions on disclosure in §§ 1.460 through 1.499 of this part do not apply to communications between VA and a contractor of information needed by the contractor to provide his or her services.</P> <P>(3) <E T="03">Crimes on VA premises or against VA personnel.</E> The restrictions on disclosure and use in §§ 1.460 through 1.499 of this part do not apply to communications from VA personnel to law enforcement officers which:</P> <P>(i) Are directly related to a patient's commission of a crime on the premises of the facility or against personnel of VA or to a threat to commit such a crime; and</P> <P>(ii) Are limited to the circumstances of the incident, including the patient status of the individual committing or threatening to commit the crime, that individual's name and address to the extent authorized by 38 U.S.C. 5701(f)(2), and that individual's last known whereabouts.</P> <P>(4) <E T="03">Undercover agents and informants.</E> (i) Except as specifically authorized by a court order granted under § 1.495 of this part, VA may not knowingly employ, or admit as a patient, any undercover agent or informant in any VA drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia treatment program.</P> <P>(ii) No information obtained by an undercover agent or informant, whether or not that undercover agent or informant is placed in a VA drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia treatment program pursuant to an authorizing court order, may be used to criminally investigate or prosecute any patient unless authorized pursuant to the provisions of § 1.494 of this part.</P> <P>(iii) The enrollment of an undercover agent or informant in a treatment unit shall not be deemed a violation of this section if the enrollment is solely for the purpose of enabling the individual to obtain treatment for drug or alcohol abuse, HIV infection, or sickle cell anemia.</P> <P>(d) <E T="03">Applicability to recipients of information</E>—(1) <E T="03">Restriction on use of information.</E> In the absence of a proper § 1.494 court order, the restriction on the use of any information subject to §§ 1.460 through 1.499 of this part to initiate or substantiate any criminal charges against a patient or to conduct any criminal investigation of a patient applies to any person who obtains that information from VA, regardless of the status of the person obtaining the information or of whether the information was obtained in accordance with §§ 1.460 through 1.499 of this part. This restriction on use bars, among other things, the introduction of that information as evidence in a criminal proceeding and any other use of the information to investigate or prosecute a patient with respect to a suspected crime. Information obtained by undercover agents or informants (see paragraph (c) of this section) or through patient access (see § 1.469 of this part) is subject to the restriction on use.</P> <P>(2) <E T="03">Restrictions on disclosures—third-party payers and others.</E> The restrictions on disclosure in §§ 1.460 through 1.499 of this part apply to third-party payers and persons who, pursuant to a consent, receive patient records directly from VA and who are notified of the restrictions on redisclosure of the records in accordance with § 1.476 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(e) and 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.462</SECTNO> <SUBJECT>Confidentiality restrictions.</SUBJECT> <P>(a) <E T="03">General.</E> The patient records to which §§ 1.460 through 1.499 of this part apply may be disclosed or used only as permitted by these regulations and may not otherwise be disclosed or used in any civil, criminal, administrative, or legislative proceedings conducted by any Federal, State, or local authority. <PRTPAGE P="26"/>Any disclosure made under these regulations must be limited to that information which is necessary to carry out the purpose of the disclosure.</P> <P>(b) <E T="03">Unconditional compliance required.</E> The restrictions on disclosure and use in §§ 1.460 through 1.499 of this part apply whether the person seeking the information already has it, has other means of obtaining it, is a law enforcement or other official, has obtained a subpoena, or asserts any other justification for a disclosure or use which is not permitted by §§ 1.460 through 1.499 of this part. These provisions do not prohibit VA from acting accordingly when there is no disclosure of information.</P> <P>(c) <E T="03">Acknowledging the presence of patients: responding to requests.</E> (1) The presence of an identified patient in a VA facility for the treatment or other VA program activity relating to drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia may be acknowledged only if the patient's written consent is obtained in accordance with § 1.475 of this part or if an authorizing court order is entered in accordance with §§ 1.490 through 1.499 of this part. Acknowledgment of the presence of an identified patient in a facility is permitted if the acknowledgment does not reveal that the patient is being treated for or is otherwise involved in a VA program or activity concerning drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia.</P> <P>(2) Any answer to a request for a disclosure of patient records which is not permissible under §§ 1.460 through 1.499 of this part must be made in a way that will not affirmatively reveal that an identified individual has been, or is being diagnosed or treated for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia. These regulations do not restrict a disclosure that an identified individual is not and never has been a patient.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.463</SECTNO> <SUBJECT>Criminal penalty for violations.</SUBJECT> <P>Under 38 U.S.C. 7332(g), any person who violates any provision of this statute or §§ 1.460 through 1.499 of this part shall be fined not more than $5,000 in the case of a first offense, and not more than $20,000 for a subsequent offense.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(g))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.464</SECTNO> <SUBJECT>Minor patients.</SUBJECT> <P>(a) <E T="03">Definition of minor.</E> As used in §§ 1.460 through 1.499 of this part the term “minor” means a person who has not attained the age of majority specified in the applicable State law, or if no age of majority is specified in the applicable State law, the age of eighteen years.</P> <P>(b) <E T="03">State law not requiring parental consent to treatment.</E> If a minor patient acting alone has the legal capacity under the applicable State law to apply for and obtain treatment for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia, any written consent for disclosure authorized under § 1.475 of this part may be given only by the minor patient. This restriction includes, but is not limited to, any disclosure of patient identifying information to the parent or guardian of a minor patient for the purpose of obtaining financial reimbursement. Sections 1.460 through 1.499 of this part do not prohibit a VA facility from refusing to provide nonemergent treatment to an otherwise ineligible minor patient until the minor patient consents to the disclosure necessary to obtain reimbursement for services from a third party payer.</P> <P>(c) <E T="03">State law requiring parental consent to treatment.</E> (1) Where State law requires consent of a parent, guardian, or other person for a minor to obtain treatment for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia, any written consent for disclosure authorized under § 1.475 of this part must be given by both the minor and his or her parent, guardian, or other person authorized under State law to act in the minor's behalf.</P> <P>(2) Where State law requires parental consent to treatment, the fact of a minor's application for treatment may be communicated to the minor's parent, guardian, or other person authorized under State law to act in the minor's behalf only if:<PRTPAGE P="27"/> </P> <P>(i) The minor has given written consent to the disclosure in accordance with § 1.475 of this part; or</P> <P>(ii) The minor lacks the capacity to make a rational choice regarding such consent as judged by the appropriate VA facility director under paragraph (d) of this section.</P> <P>(d) <E T="03">Minor applicant for service lacks capacity for rational choice.</E> Facts relevant to reducing a threat to the life or physical well being of the applicant or any other individual may be disclosed to the parent, guardian, or other person authorized under State law to act in the minor's behalf if the appropriate VA facility director judges that:</P> <P>(1) A minor applicant for services lacks capacity because of extreme youth or mental or physical condition to make a rational decision on whether to consent to a disclosure under § 1.475 of this part to his or her parent, guardian, or other person authorized under State law to act in the minor's behalf, and</P> <P>(2) The applicant's situation poses a substantial threat to the life or physical well-being of the applicant or any other individual which may be reduced by communicating relevant facts to the minor's parent, guardian, or other person authorized under State law to act in the minor's behalf.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.465</SECTNO> <SUBJECT>Incompetent and deceased patients.</SUBJECT> <P>(a) <E T="03">Incompetent patients other than minors.</E> In the case of a patient who has been adjudicated as lacking the capacity, for any reason other than insufficient age, to manage his or her own affairs, any consent which is required under §§ 1.460 through 1.499 of this part may be given by a court appointed legal guardian.</P> <P>(b) <E T="03">Deceased patients</E>—(1) <E T="03">Vital statistics.</E> Sec. 1.460 through 1.499 of this part do not restrict the disclosure of patient identifying information relating to the cause of death of a patient under laws requiring the collection of death or other vital statistics or permitting inquiry into the cause of death.</P> <P>(2) <E T="03">Consent by personal representative.</E> Any other disclosure of information identifying a deceased patient as being treated for drug abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle cell anemia is subject to §§ 1.460 through 1.499 of this part. If a written consent to the disclosure is required, the Under Secretary for Health or designee may, upon the prior written request of the next of kin, executor/executrix, administrator/administratrix, or other personal representative of such deceased patient, disclose the contents of such records, only if the Under Secretary for Health or designee determines such disclosure is necessary to obtain survivorship benefits for the deceased patient's survivor. This would include not only VA benefits, but also payments by the Social Security Administration, Worker's Compensation Boards or Commissions, or other Federal, State, or local government agencies, or nongovernment entities, such as life insurance companies.</P> <P>(3) <E T="03">Information related to sickle cell anemia.</E> Information related to sickle cell anemia may be released to a blood relative of a deceased veteran for medical follow-up or family planning purposes.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(3))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.466</SECTNO> <SUBJECT>Security for records.</SUBJECT> <P>(a) Written records which are subject to §§ 1.460 through 1.499 of this part must be maintained in a secure room, locked file cabinet, safe or other similar container when not in use. Access to information stored in computers will be limited to authorized VA employees who have a need for the information in performing their duties. These security precautions shall be consistent with the Privacy Act of 1974 (5 U.S.C. 552a).</P> <P>(b) Each VA facility shall adopt in writing procedures related to the access to and use of records which are subject to §§ 1.460 through 1.499 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.467</SECTNO> <SUBJECT>Restrictions on the use of identification cards and public signs.</SUBJECT> <P>(a) No facility may require any patient to carry on their person while away from the facility premises any card or other object which would identify the patient as a participant in any <PRTPAGE P="28"/>VA drug abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia treatment program. A facility may require patients to use or carry cards or other identification objects on the premises of a facility. Patients may not be required to wear clothing or colored identification bracelets or display objects openly to all facility staff or others which would identify them as being treated for drug or alcohol abuse, HIV infection, or sickle cell anemia.</P> <P>(b) Treatment locations should not be identified by signs that would identify individuals entering or exiting these locations as patients enrolled in a drug or alcohol abuse, HIV infection, or sickle cell anemia program or activity.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.468</SECTNO> <SUBJECT>Relationship to Federal statutes protecting research subjects against compulsory disclosure of their identity.</SUBJECT> <P>(a) <E T="03">Research privilege description.</E> There may be concurrent coverage of patient identifying information by the provisions of §§ 1.460 through 1.499 of this part and by administrative action taken under Sec. 303(a) of the Public Health Service Act (42 U.S.C. 241(d) and the implementing regulations at 42 CFR Part 2a); or Sec. 502(c) of the Controlled Substances Act (21 U.S.C. 872(c) and the implementing regulations at 21 CFR 1316.21). These “research privilege” statutes confer on the Secretary of Health and Human Services and on the Attorney General, respectively, the power to authorize researchers conducting certain types of research to withhold from all persons not connected with the research the names and other identifying information concerning individuals who are the subjects of the research.</P> <P>(b) <E T="03">Effect of concurrent coverage.</E> Sections 1.460 through 1.499 of this part restrict the disclosure and use of information about patients, while administrative action taken under the research privilege statutes and implementing regulations protects a person engaged in applicable research from being compelled to disclose any identifying characteristics of the individuals who are the subjects of that research. The issuance under §§ 1.490 through 1.499 of this part of a court order authorizing a disclosure of information about a patient does not affect an exercise of authority under these research privilege statutes. However, the research privilege granted under 21 CFR 291.505(g) to treatment programs using methadone for maintenance treatment does not protect from compulsory disclosure any information which is permitted to be disclosed under those regulations. Thus, if a court order entered in accordance with §§ 1.490 through 1.499 of this part authorizes a VA facility to disclose certain information about its patients, the facility may not invoke the research privilege under 21 CFR 291.505(g) as a defense to a subpoena for that information.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.469</SECTNO> <SUBJECT>Patient access and restrictions on use.</SUBJECT> <P>(a) <E T="03">Patient access not prohibited.</E> Sections 1.460 through 1.499 of this part do not prohibit a facility from giving a patient access to his or her own records, including the opportunity to inspect and copy any records that VA maintains about the patient, subject to the provisions of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the patient is accompanied, giving access to the patient and the accompanying person will require a written consent by the patient which is provided in accordance with § 1.475 of this part.</P> <P>(b) <E T="03">Restrictions on use of information.</E> Information obtained by patient access to patient record is subject to the restriction on use of this information to initiate or substantiate any criminal charges against the patient or to conduct any criminal investigation of the patient as provided for under § 1.461(d)(1) of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§§ 1.470-1.474</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SUBJGRP> <HD SOURCE="HED">Disclosures With Patient's Consent</HD> <SECTION> <SECTNO>§ 1.475</SECTNO> <SUBJECT>Form of written consent.</SUBJECT> <P>(a) <E T="03">Required elements.</E> A written consent to a disclosure under §§ 1.460 through 1.499 of this part must include:</P> <P>(1) The name of the facility permitted to make the disclosure (such a <PRTPAGE P="29"/>designation does not preclude the release of records from other VA health care facilities unless a restriction is stated on the consent).</P> <P>(2) The name or title of the individual or the name of the organization to which disclosure is to be made.</P> <P>(3) The name of the patient.</P> <P>(4) The purpose of the disclosure.</P> <P>(5) How much and what kind of information is to be disclosed.</P> <P>(6) The signature of the patient and, when required for a patient who is a minor, the signature of a person authorized to give consent under § 1.464 of this part; or, when required for a patient who is incompetent or deceased, the signature of a person authorized to sign under § 1.465 of this part in lieu of the patient.</P> <P>(7) The date on which the consent is signed.</P> <P>(8) A statement that the consent is subject to revocation at any time except to the extent that the facility which is to make the disclosure has already acted in reliance on it. Acting in reliance includes the provision of treatment services in reliance on a valid consent to disclose information to a third party payer.</P> <P>(9) The date, event, or condition upon which the consent will expire if not revoked before. This date, event, or condition must ensure that the consent will last no longer than reasonably necessary to serve the purpose for which it is given.</P> <P>(b) <E T="03">Expired, deficient, or false consent.</E> A disclosure may not be made on the basis of a consent which:</P> <P>(1) Has expired;</P> <P>(2) On its face substantially fails to conform to any of the requirements set forth in paragraph (a) of this section;</P> <P>(3) Is known to have been revoked; or</P> <P>(4) Is known, or through a reasonable effort could be known, by responsible personnel of VA to be materially false.</P> <P>(c) <E T="03">Notification of deficient consent.</E> Other than the patient, no person or entity may be advised that a special consent is required in order to disclose information relating to an individual participating in a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia program or activity. Where a person or entity presents VA with an insufficient written consent for information protected by 38 U.S.C. 7332, VA must, in the process of obtaining a legally sufficient consent, correspond only with the patient whose records are involved, or the legal guardian of an incompetent patient or next of kin of a deceased patient, and not with any other person.</P> <P>(d) It is not necessary to use any particular form to establish a consent referred to in paragraph (a) of this section, however, VA Form 10-5345, titled Request for and Consent to Release of Medical Records Protected by 38 U.S.C. 7332, may be used for such purpose.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(a)(2) and (b)(1))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.476</SECTNO> <SUBJECT>Prohibition on redisclosure.</SUBJECT> <P>Each disclosure under §§ 1.460 through 1.499 of this part made with the patient's written consent must be accompanied by a written statement similar to the following: </P> <EXTRACT> <P>This information has been disclosed to you from records protected by Federal confidentiality rules (38 CFR Part 1). The Federal rules prohibit you from making any further disclosure of this information unless further disclosure is expressly permitted by the written consent of the person to whom it pertains or as otherwise permitted by 38 CFR Part 1. A general authorization for the release of medical or other information is NOT sufficient for this purpose. The Federal rules restrict any use of the information to criminally investigate or prosecute any alcohol or drug abuse patient or patient with sickle cell anemia or HIV infection.</P> </EXTRACT> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.477</SECTNO> <SUBJECT>Disclosures permitted with written consent.</SUBJECT> <P>If a patient consents to a disclosure of his or her records under § 1.475 of this part, a facility may disclose those records in accordance with that consent to any individual or organization named in the consent, except that disclosures to central registries and in connection with criminal justice referrals must meet the requirements of §§ 1.478 and 1.479 of this part, respectively.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(1))</SECAUTH> </SECTION> <SECTION> <PRTPAGE P="30"/> <SECTNO>§ 1.478</SECTNO> <SUBJECT>Disclosures to prevent multiple enrollments in detoxification and maintenance treatment programs; not applicable to records relating to sickle cell anemia or infection with the human immunodeficiency virus.</SUBJECT> <P>(a) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">Central registry</E> means an organization which obtains from two or more member programs patient identifying information about individuals applying for maintenance treatment or detoxification treatment for the purpose of avoiding an individual's concurrent enrollment in more than one program.</P> <P>(2) <E T="03">Detoxification treatment</E> means the dispensing of a narcotic drug in decreasing doses to an individual in order to reduce or eliminate adverse physiological or psychological effects incident to withdrawal from the sustained use of a narcotic drug.</P> <P>(3) <E T="03">Maintenance treatment</E> means the dispensing of a narcotic drug in the treatment of an individual for dependence upon heroin or other morphine-like drugs.</P> <P>(4) <E T="03">Member program</E> means a non-VA detoxification treatment or maintenance treatment program which reports patient identifying information to a central registry and which is in the same State as that central registry or is not more than 125 miles from any border of the State in which the central registry is located.</P> <P>(b) <E T="03">Restrictions on disclosure.</E> VA may disclose patient records to a central registry which is located in the same State or is not more than 125 miles from any border of the State or to any non-VA detoxification or maintenance treatment program not more than 200 miles away for the purpose of preventing the multiple enrollment of a patient only if:</P> <P>(1) The disclosure is made when:</P> <P>(i) The patient is accepted for treatment;</P> <P>(ii) The type or dosage of the drug is changed; or</P> <P>(iii) The treatment is interrupted, resumed or terminated.</P> <P>(2) The disclosure is limited to:</P> <P>(i) Patient identifying information;</P> <P>(ii) Type and dosage of the drug; and</P> <P>(iii) Relevant dates.</P> <P>(3) The disclosure is made with the patient's written consent meeting the requirements of § 1.475 of this part, except that:</P> <P>(i) The consent must list the name and address of each central registry and each known non-VA detoxification or maintenance treatment program to which a disclosure will be made; and</P> <P>(ii) The consent may authorize a disclosure to any non-VA detoxification or maintenance treatment program established within 200 miles after the consent is given without naming any such program.</P> <P>(c) <E T="03">Use of information limited to prevention of multiple enrollments.</E> A central registry and any non-VA detoxification or maintenance treatment program to which information is disclosed to prevent multiple enrollments may not redisclose or use patient identifying information for any purpose other than the prevention of multiple enrollments unless authorized by a court order under §§ 1.490 through 1.499 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.479</SECTNO> <SUBJECT>Disclosures to elements of the criminal justice system which have referred patients.</SUBJECT> <P>(a) VA may disclose information about a patient from records covered by §§ 1.460 through 1.499 of this part to those persons within the criminal justice system which have made participation in a VA treatment program a condition of the disposition of any criminal proceedings against the patient or of the patient's parole or other release from custody if:</P> <P>(1) The disclosure is made only to those individuals within the criminal justice system who have a need for the information in connection with their duty to monitor the patient's progress (e.g., a prosecuting attorney who is withholding charges against the patient, a court granting pretrial or posttrial release, probation or parole officers responsible for supervision of the patient); and</P> <P>(2) The patient has signed a written consent as a condition of admission to the treatment program meeting the requirements of § 1.475 of this part (except paragraph (a)(8) which is inconsistent with the revocation provisions of paragraph (c) of this section) and the <PRTPAGE P="31"/>requirements of paragraphs (b) and (c) of this section.</P> <P>(b) <E T="03">Duration of consent.</E> The written consent must state the period during which it remains in effect. This period must be reasonable, taking into account:</P> <P>(1) The anticipated length of the treatment recognizing that revocation of consent may not generally be effected while treatment is ongoing;</P> <P>(2) The type of criminal proceeding involved, the need for the information in connection with the final disposition of that proceeding, and when the final disposition will occur; and</P> <P>(3) Such other factors as the facility, the patient, and the person(s) who will receive the disclosure consider pertinent.</P> <P>(c) <E T="03">Revocation of consent.</E> The written consent must state that it is revocable upon the passage of a specified amount of time or the occurrence of a specified, ascertainable event. The time or occurrence upon which consent becomes revocable may be no earlier than the individual's completion of the treatment program and no later than the final disposition of the conditional release or other action in connection with which consent was given.</P> <P>(d) <E T="03">Restrictions on redisclosure and use.</E> A person who receives patient information under this section may redisclose and use it only to carry out that person's official duties with regard to the patient's conditional release or other action in connection with which the consent was given, including parole.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§§ 1.480-1.484</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Disclosures Without Patient Consent</HD> <SECTION> <SECTNO>§ 1.485</SECTNO> <SUBJECT>Medical emergencies.</SUBJECT> <P>(a) <E T="03">General rule.</E> Under the procedures required by paragraph (c) of this section, patient identifying information from records covered by §§ 1.460 through 1.499 of this part may be disclosed to medical personnel who have a need for information about a patient for the purpose of treating a condition which poses an immediate threat to the health of any individual and which requires immediate medical intervention.</P> <P>(b) <E T="03">Special rule.</E> Patient identifying information may be disclosed to medical personnel of the Food and Drug Administration (FDA) who assert a reason to believe that the health of any individual may be threatened by an error in the manufacture, labeling, or sale of a product under FDA jurisdiction, and that the information will be used for the exclusive purpose of notifying patients or their physicians of potential dangers.</P> <P>(c) <E T="03">Procedures.</E> Immediately following disclosure, any VA employee making an oral disclosure under authority of this section shall make an accounting of the disclosure in accordance with the Privacy Act (5 U.S.C. 552a(c) and 38 CFR 1.576(c)) and document the disclosure in the patient's records setting forth in writing:</P> <P>(1) The name and address of the medical personnel to whom disclosure was made and their affiliation with any health care facility;</P> <P>(2) The name of the individual making the disclosure;</P> <P>(3) The date and time of the disclosure;</P> <P>(4) The nature of the emergency (or error, if the report was to FDA);</P> <P>(5) The information disclosed; and</P> <P>(6) The authority for making the disclosure (§ 1.485 of this part).</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(2)(A))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.486</SECTNO> <SUBJECT>Disclosure of information related to infection with the human immunodeficiency virus to public health authorities.</SUBJECT> <P>(a) In the case of any record which is maintained in connection with the performance of any program or activity relating to infection with the HIV, information may be disclosed to a Federal, State, or local public health authority, charged under Federal or State law with the protection of the public health, and to which Federal or State law requires disclosure of such record, if a qualified representative of such authority has made a written request that such record be provided as required pursuant to such law for a purpose authorized by such law. In the case of a State law, such law must, in <PRTPAGE P="32"/>order for VA to be able to release patient name and address information in accordance with 38 U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be assessed against those individuals who are subject to the jurisdiction of the public health authority but fail to comply with the reporting requirements.</P> <P>(b) A person to whom a record is disclosed under this section may not redisclose or use such record for a purpose other than that for which the disclosure was made.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(2)(C))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.487</SECTNO> <SUBJECT>Disclosure of information related to infection with the human immunodeficiency virus to the spouse or sexual partner of the patient.</SUBJECT> <P>(a) Subject to paragraph (b) of this section, a physician or a professional counselor may disclose information or records indicating that a patient is infected with the HIV if the disclosure is made to the spouse of the patient, or to an individual whom the patient has, during the process of professional counseling or of testing to determine whether the patient is infected with such virus, identified as being a sexual partner of such patient.</P> <P>(b) A disclosure under this section may be made only if the physician or counselor, after making reasonable efforts to counsel and encourage the patient to provide the information to the spouse or sexual partner, reasonably believes that the patient will not provide the information to the spouse or sexual partner and that the disclosure is necessary to protect the health of the spouse or sexual partner.</P> <P>(c) A disclosure under this section may be made by a physician or counselor other than the physician or counselor referred to in paragraph (b) of this section if such physician or counselor is unavailable by reason of extended absence or termination of employment to make the disclosure.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.488</SECTNO> <SUBJECT>Research activities.</SUBJECT> <P>Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584 and the following paragraphs, patient medical record information covered by §§ 1.460 through 1.499 of this part may be disclosed for the purpose of conducting scientific research.</P> <P>(a) Information in individually identifiable form may be disclosed from records covered by §§ 1.460 through 1.499 of this part for the purpose of conducting scientific research if the Under Secretary for Health or designee makes a determination that the recipient of the patient identifying information:</P> <P>(1) Is qualified to conduct the research.</P> <P>(2) Has a research protocol under which the information:</P> <P>(i) Will be maintained in accordance with the security requirements of § 1.466 of this part (or more stringent requirements); and</P> <P>(ii) Will not be redisclosed except as permitted under paragraph (b) of this section.</P> <P>(3) Has furnished a written statement that the research protocol has been reviewed by an independent group of three or more individuals who found that the rights of patients would be adequately protected and that the potential benefits of the research outweigh any potential risks to patient confidentiality posed by the disclosure of records.</P> <P>(b) A person conducting research may disclose information obtained under paragraph (a) of this section only back to VA and may not identify any individual patient in any report of that research or otherwise disclose patient identities.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(2)(B))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.489</SECTNO> <SUBJECT>Audit and evaluation activities.</SUBJECT> <P>Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584, and the following paragraphs, patient medical records covered by §§ 1.460 through 1.499 of this part may be disclosed outside VA for the purposes of conducting audit and evaluation activities.</P> <P>(a) <E T="03">Records not copies.</E> If patient records covered by §§ 1.460 through 1.499 of this part are not copied, patient identifying information may be disclosed in the course of a review of records on VA facility premises to any person who agrees in writing to comply with the limitations on redisclosure <PRTPAGE P="33"/>and use in paragraph (d) of this section and:</P> <P>(1) Where audit or evaluation functions are performed by a State or Federal governmental agency on behalf of VA; or</P> <P>(2) Who is determined by the VA facility director to be qualified to conduct the audit or evaluation activities.</P> <P>(b) <E T="03">Copying of records.</E> Records containing patient identifying information may be copied by any person who:</P> <P>(1) Agrees in writing to:</P> <P>(i) Maintain the patient identifying information in accordance with the security requirements provided in § 1.466 of this part (or more stringent requirements);</P> <P>(ii) Destroy all the patient identifying information upon completion of the audit or evaluation; and</P> <P>(iii) Comply with the limitations on disclosure and use in paragraph (d) of this section.</P> <P>(2) The VA medical facility director determines to be qualified to conduct the audit or evaluation activities.</P> <P>(c) <E T="03">Congressional oversight.</E> Records subject to §§ 1.460 through 1.499 of this part upon written request may be released to congressional committees or subcommittees for program oversight and evaluation if such records pertain to any matter within the jurisdiction of such committee or subcommittee.</P> <P>(d) <E T="03">Limitation on disclosure and use.</E> Records containing patient identifying information disclosed under this section may be disclosed only back to VA and used only to carry out an audit or evaluation purpose, or, to investigate or prosecute criminal or other activities as authorized by a court order entered under § 1.494 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(2)(B))</SECAUTH> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Court Orders Authorizing Disclosures and Use</HD> <SECTION> <SECTNO>§ 1.490</SECTNO> <SUBJECT>Legal effect of order.</SUBJECT> <P>The records to which §§ 1.460 through 1.499 of this part apply may be disclosed if authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore. In assessing good cause the court is statutorily required to weigh the public interest and the need for disclosure against the injury to the patient or subject, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, is required by statute to impose appropriate safeguards against unauthorized disclosure. An order of a court of competent jurisdiction to produce records subject to §§ 1.460 through 1.499 of this part will not be sufficient unless the order reflects that the court has complied with the requirements of 38 U.S.C. 7332(b)(2)(D). Such an order from a Federal court compels disclosure. However, such an order from a State court only acts to authorize the Secretary to exercise discretion pursuant to 38 U.S.C. 5701(b)(5) and 38 CFR 1.511 to disclose such records. It does not compel disclosure.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(b)(2)(D))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.491</SECTNO> <SUBJECT>Confidential communications.</SUBJECT> <P>(a) A court order under §§ 1.490 through 1.499 of this part may authorize disclosure of confidential communications made by a patient to a treatment program in the course of diagnosis, treatment, or referral for treatment only if:</P> <P>(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;</P> <P>(2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or</P> <P>(3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.</P> <P>(b) [Reserved]</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <PRTPAGE P="34"/> <SECTNO>§ 1.492</SECTNO> <SUBJECT>Order not applicable to records disclosed without consent to researchers, auditors and evaluators.</SUBJECT> <P>A court order under §§ 1.460 through 1.499 of this part may not authorize qualified personnel, who have received patient identifying information from VA without consent for the purpose of conducting research, audit or evaluation, to disclose that information or use it to conduct any criminal investigation or prosecution of a patient. However, a court order under § 1.495 of this part may authorize disclosure and use of records to investigate or prosecute VA personnel.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.493</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosures for noncriminal purposes.</SUBJECT> <P>(a) <E T="03">Application.</E> An order authorizing the disclosure of patient records covered by §§ 1.460 through 1.499 of this part for purposes other than criminal investigation or prosecution may be applied for by any person having a legally recognized interest in the disclosure which is sought. The application may be filed separately or as part of a pending civil action in which it appears that the patient records are needed to provide evidence. An application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the patient is the applicant or has given a written consent (meeting the requirements of § 1.475 of this part) to disclosure or the court has ordered the record of the proceeding sealed from public scrutiny.</P> <P>(b) <E T="03">Notice.</E> The patient and VA facility from whom disclosure is sought must be given:</P> <P>(1) Adequate notice in a manner which will not disclose patient identifying information to other persons; and</P> <P>(2) An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on whether the statutory and regulatory criteria for the issuance of the court order are met.</P> <P>(c) <E T="03">Review of evidence: Conduct of hearing.</E> Any oral argument, review of evidence, or hearing on the application must be held in the judge's chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the patient, or VA, unless the patient requests an open hearing in a manner which meets the written consent requirements of § 1.475 of this part. The proceeding may include an examination by the judge of the patient records referred to in the application.</P> <P>(d) <E T="03">Criteria for entry of order.</E> An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:</P> <P>(1) Other ways of obtaining the information are not available or would not be effective; and</P> <P>(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.</P> <P>(e) <E T="03">Content of order.</E> An order authorizing a disclosure must:</P> <P>(1) Limit disclosure to those parts of the patient's record which are essential to fulfill the objective of the order;</P> <P>(2) Limit disclosure to those persons whose need for information is the basis for the order; and</P> <P>(3) Include such other measures as are necessary to limit disclosure for the protection of the patient, the physician-patient relationship and the treatment services; for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient's record has been ordered.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.494</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosure and use of records to criminally investigate or prosecute patients.</SUBJECT> <P>(a) <E T="03">Application.</E> An order authorizing the disclosure or use of patient records covered by §§ 1.460 through 1.499 of this part to criminally investigate or prosecute a patient may be applied for by VA or by any person conducting investigative or prosecutorial activities with respect to the enforcement of criminal laws. The application may be filed separately, as part of an application for a subpoena or other compulsory process, or in a pending criminal <PRTPAGE P="35"/>action. An application must use a fictitious name such as John Doe, to refer to any patient and may not contain or otherwise disclose patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny.</P> <P>(b) <E T="03">Notice and hearing.</E> Unless an order under § 1.495 of this part is sought with an order under this section, VA must be given:</P> <P>(1) Adequate notice (in a manner which will not disclose patient identifying information to third parties) of an application by a person performing a law enforcement function;</P> <P>(2) An opportunity to appear and be heard for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order; and</P> <P>(3) An opportunity to be represented by counsel.</P> <P>(c) <E T="03">Review of evidence: Conduct of hearings.</E> Any oral argument, review of evidence, or hearing on the application shall be held in the judge's chambers or in some other manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceedings, the patient, or VA. The proceeding may include an examination by the judge of the patient records referred to in the application.</P> <P>(d) <E T="03">Criteria.</E> A court may authorize the disclosure and use of patient records for the purpose of conducting a criminal investigation or prosecution of a patient only if the court finds that all of the following criteria are met:</P> <P>(1) The crime involved is extremely serious, such as one which causes or directly threatens loss of life or serious bodily injury including, but not limited to, homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, and child abuse and neglect.</P> <P>(2) There is a reasonable likelihood that the records will disclose information of substantial value in the investigation or prosecution.</P> <P>(3) Other ways of obtaining the information are not available or would not be effective.</P> <P>(4) The potential injury to the patient, to the physician-patient relationship and to the ability of VA to provide services to other patients is outweighed by the public interest and the need for the disclosure.</P> <P>(5) If the applicant is a person performing a law enforcement function, VA has been represented by counsel independent of the applicant.</P> <P>(e) <E T="03">Content of order.</E> Any order authorizing a disclosure or use of patient records under this section must:</P> <P>(1) Limit disclosure and use to those parts of the patient's record which are essential to fulfill the objective of the order;</P> <P>(2) Limit disclosure to those law enforcement and prosecutorial officials who are responsible for, or are conducting, the investigation or prosecution, and limit their use of the records to investigation and prosecution of extremely serious crime or suspected crime specified in the applications; and</P> <P>(3) Include such other measures as are necessary to limit disclosure and use to the fulfillment on only that public interest and need found by the court.</P> <SECAUTH>(Authority: 38 U.S.C. 7332(c))</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.495</SECTNO> <SUBJECT>Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute VA or employees of VA.</SUBJECT> <P>(a) <E T="03">Application.</E> (1) An order authorizing the disclosure or use of patient records covered by §§ 1.460 through 1.499 of this part to criminally or administratively investigate or prosecute VA (or employees or agents of VA) may be applied for by an administrative, regulatory, supervisory, investigative, law enforcement, or prosecutorial agency having jurisdiction over VA activities.</P> <P>(2) The application may be filed separately or as part of a pending civil or criminal action against VA (or agents or employees of VA) in which it appears that the patient records are needed to provide material evidence. The application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the court has ordered the record of the proceeding sealed from public scrutiny or the patient has given a written consent (meeting the requirements of § 1.475 of this part) to that disclosure.<PRTPAGE P="36"/> </P> <P>(b) <E T="03">Notice not required.</E> An application under this section may, in the discretion of the court, be granted without notice. Although no express notice is required to VA or to any patient whose records are to be disclosed, upon implementation of an order so granted VA or the patient must be afforded an opportunity to seek revocation or amendment of that order, limited to the presentation of evidence on the statutory and regulatory criteria for the issuance of the court order.</P> <P>(c) <E T="03">Requirements for order.</E> An order under this section must be entered in accordance with, and comply with the requirements of, § 1.493(d) and (e) of this part.</P> <P>(d) <E T="03">Limitations on disclosure and use of patient identifying information.</E> (1) An order entered under this section must require the deletion of patient identifying information from any documents made available to the public.</P> <P>(2) No information obtained under this section may be used to conduct any investigation or prosecution of a patient, or be used as the basis for an application for an order under § 1.494 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.496</SECTNO> <SUBJECT>Orders authorizing the use of undercover agents and informants to criminally investigate employees or agents of VA.</SUBJECT> <P>(a) <E T="03">Application.</E> A court order authorizing the placement of an undercover agent or informant in a VA drug or alcohol abuse, HIV infection, or sickle cell anemia treatment program as an employee or patient may be applied for by any law enforcement or prosecutorial agency which has reason to believe that employees or agents of the VA treatment program are engaged in criminal misconduct.</P> <P>(b) <E T="03">Notice.</E> The VA facility director must be given adequate notice of the application and an opportunity to appear and be heard (for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order), unless the application asserts a belief that:</P> <P>(1) The VA facility director is involved in the criminal activities to be investigated by the undercover agent or informant; or</P> <P>(2) The VA facility director will intentionally or unintentionally disclose the proposed placement of an undercover agent or informant to the employees or agents who are suspected of criminal activities.</P> <P>(c) <E T="03">Criteria.</E> An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find:</P> <P>(1) There is reason to believe that an employee or agent of a VA treatment program is engaged in criminal activity;</P> <P>(2) Other ways of obtaining evidence of this criminal activity are not available or would not be effective; and</P> <P>(3) The public interest and need for the placement of an undercover agent or informant in the VA treatment program outweigh the potential injury to patients of the program, physician-patient relationships and the treatment services.</P> <P>(d) <E T="03">Content of order.</E> An order authorizing the placement of an undercover agent or informant in a VA treatment program must:</P> <P>(1) Specifically authorize the placement of an undercover agent or an informant;</P> <P>(2) Limit the total period of the placement to six months;</P> <P>(3) Prohibit the undercover agent or informant from disclosing any patient identifying information obtained from the placement except as necessary to criminally investigate or prosecute employees or agents of the VA treatment program; and</P> <P>(4) Include any other measures which are appropriate to limit any potential disruption of the program by the placement and any potential for a real or apparent breach of patient confidentiality; for example, sealing from public scrutiny the record of any proceeding for which disclosure of a patient's record has been ordered.</P> <P>(e) <E T="03">Limitation on use of information.</E> No information obtained by an undercover agent or informant placed under this section may be used to criminally investigate or prosecute any patient or as the basis for an application for an order under § 1.494 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 7334)</SECAUTH> </SECTION> <SECTION> <PRTPAGE P="37"/> <SECTNO>§§ 1.497-1.499</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Release of Information From Department of Veterans Affairs Claimant Records</HD> </SUBJGRP> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Sections 1.500 through 1.527 concern the availability and release of information from files, records, reports, and other papers and documents in Department of Veterans Affairs custody pertaining to claims under any of the laws administered by the Department of Veterans Affairs. As to the release of information from Department of Veterans Affairs records other than claimant records, see §§ 1.550 through 1.558. Sections 1.500 through 1.526 implement the provisions of 38 U.S.C. 5701, 5702.</P> </NOTE> <CITA>[32 FR 10848, July 25, 1967]</CITA> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236, as amended; 38 U.S.C. 501, 5701.</P> </AUTH> <SECTION> <SECTNO>§ 1.500</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Files, records, reports, and other papers and documents pertaining to any claim filed with the Department of Veterans Affairs, whether pending or adjudicated, and the names and addresses of present or former personnel of the armed services, and their dependents, in the possession of the Department of Veterans Affairs, will be deemed confidential and privileged, and no disclosure therefrom will be made except in the circumstances and under the conditions set forth in §§ 1.501 through 1.526.</P> <P>(b) A claimant may not have access to or custody of official Department of Veterans Affairs records concerning himself or herself nor may a claimant inspect records concerning himself or herself. Disclosure of information from Department of Veterans Affairs records to a claimant or his or her duly authorized agent or representative may be made, however, under the provisions of §§ 1.501 through 1.526.</P> <P>(c) Each administration, staff office, and field facility head will designate an employee(s) who will be responsible for initial action on (granting or denying) requests to inspect or obtain information from or copies of records under their jurisdiction and within the purview of §§ 1.501 through 1.526 unless the regulations in this part currently contain such designations. The request should be made to the office concerned (having jurisdiction of the record desired) or, if not known, to the Director or Veterans Assistance Officer in the nearest VA regional office, or to the VA Central Office, 810 Vermont Avenue NW., Washington, DC 20420. Personal contacts should normally be made during the regular duty hours of the office concerned, which are 8 a.m. to 4:30 p.m., Monday through Friday, for VA Central Office and most field facilities. Any legal question arising in a field facility concerning the release of information will be referred to the appropriate Regional Counsel for disposition as contemplated by § 13.401 of this chapter. In central office such legal questions will be referred to the General Counsel. Any administrative question will be referred through administrative channels to the appropriate administration or staff office head.</P> <P>(d) Upon denial of a request under paragraph (c) of this section, the responsible Department of Veterans Affairs official or designated employee will inform the requester in writing of the denial and advise him or her that he or she may appeal the denial. The requester will also be furnished the title and address of the Department of Veterans Affairs official to whom the appeal should be addressed. (See § 1.527.) In each instance of denial of a request, the denial will be made a matter of record and the record will contain a citation to the specific provision of Department of Veterans Affairs regulations upon which the denial is based.</P> <CITA>[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38 FR 15601, June 14, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.501</SECTNO> <SUBJECT>Release of information by the Secretary.</SUBJECT> <P>The Secretary of Veterans Affairs or the Deputy Secretary may release information, statistics, or reports to individuals or organizations when in the Secretary's or Deputy Secretary's judgment such release would serve a useful purpose.</P> <CITA>[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.502</SECTNO> <SUBJECT>Disclosure of the amount of monetary benefits.</SUBJECT> <P>The monthly rate of pension, compensation, dependency and indemnity <PRTPAGE P="38"/>compensation, retirement pay, subsistence allowance, or educational assistance allowance of any beneficiary shall be made known to any person who applies for such information.</P> <CITA>[32 FR 10848, July 25, 1967]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.503</SECTNO> <SUBJECT>Disclosure of information to a veteran or his or her duly authorized representative as to matters concerning the veteran alone.</SUBJECT> <P>Information may be disclosed to a veteran or his or her duly authorized representative as to matters concerning himself or herself alone when such disclosure would not be injurious to the physical or mental health of the veteran. If the veteran be deceased, matters concerning him or her may be disclosed to his widow, children, or next of kin if such disclosure will not be injurious to the physical or mental health of the person in whose behalf information is sought or cause repugnance or resentment toward the decedent.</P> <CITA>[13 FR 6999, Nov. 27, 1948]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.504</SECTNO> <SUBJECT>Disclosure of information to a widow, child, or other claimant.</SUBJECT> <P>Information may be disclosed to a widow, widower, child, or other dependent parent or other claimant, or the duly authorized representative of any of these persons as to matters concerning such person alone when such disclosure will not be injurious to the physical or mental health of the person to whom the inquiry relates. If the person concerning whom the information is sought is deceased, matters concerning such person may be disclosed to the next of kin if the disclosures will not be injurious to the physical or mental health of the person in whose behalf the information is sought or cause repugnance or resentment toward the decedent.</P> <CITA>[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.505</SECTNO> <SUBJECT>Genealogy.</SUBJECT> <P>Information of a genealogical nature when its disclosure will not be detrimental to the memory of the veteran and not prejudicial, so far as may be apparent, to the interests of any living person or to the interests of the Government may be released by the Department of Veterans Affairs or in the case of inactive records may be released by the Archivist of the United States if in the Archivist's custody.</P> <CITA>[13 FR 6999, Nov. 27, 1948]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.506</SECTNO> <SUBJECT>Disclosure of records to Federal Government departments, State unemployment compensation agencies, and the Office of Servicemembers' Group Life Insurance.</SUBJECT> <P>(a) All records or documents required for official purposes by any department or other agency of the U.S. Government or any state unemployment compensation agency acting in an official capacity for the Department of Veterans Affairs shall be furnished in response to an official request, written, or oral, from such department or agency. If the requesting department or agency does not indicate the purpose for which the records or documents are requested and there is doubt as to whether they are to be used for official purposes, the requesting department or agency will be asked to specify the purpose for which they are to be used.</P> <P>(b) The Under Secretary for Benefits, Director of Insurance Service, or designee of either in Central Office, is authorized to release information to OSGLI (Office of Servicemembers' Group Life Insurance) for the purpose of aiding in the settlement of a particular insurance case.</P> <CITA>[33 FR 2994, Feb. 15, 1968]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.507</SECTNO> <SUBJECT>Disclosures to members of Congress.</SUBJECT> <P>Members of Congress shall be furnished in their official capacity in any case such information contained in the Department of Veterans Affairs files as may be requested for official use. However, in any unusual case, the request will be presented to the Secretary, Deputy Secretary, or staff or administration head for personal action. When the requested information is of a type which may not be furnished a claimant, the member of Congress shall be advised that the information is furnished to him or her confidentially in his official capacity and should be so treated by him or her. (See 38 U.S.C. <PRTPAGE P="39"/>5701.) Information concerning the beneficiary designation of a United States Government Life Insurance or National Service Life Insurance policy is deemed confidential and privileged and during the insured's lifetime shall not be disclosed to anyone other than the insured or his or her duly appointed fiduciary unless the insured or the fiduciary authorizes the release of such information.</P> <CITA>[32 FR 10848, July 25, 1967]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.508</SECTNO> <SUBJECT>Disclosure in cases where claimants are charged with or convicted of criminal offenses.</SUBJECT> <P>(a) Where incompetent claimants are charged with, or convicted of, offenses other than those growing out of their relationship with the Department of Veterans Affairs and in which it is desired to disclose information from the files and records of the Department of Veterans Affairs, the Regional Counsel, Under Secretary for Benefits, Veterans Benefits Administration, or the General Counsel if the General Counsel deems it necessary and proper, may disclose to the court having jurisdiction so much of the information from the files and records of the Department of Veterans Affairs relating to the mental condition of such beneficiaries, the same to be available as evidence, as may be necessary to show the mental condition of the accused and the time of its onset. This provision, however, does not alter the general procedure for handling offenses growing out of relations with the Department of Veterans Affairs.</P> <P>(b) When desired by a U.S. district court, the Regional Counsel or the General Counsel may supply information as to whether any person charged with crime served in the military or naval service of the United States and whether the Department of Veterans Affairs has a file on such person. If the file is desired either by the court or by the prosecution or defense, it may be produced only in accord with §§ 1.501 through 1.526.</P> <CITA>[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967; 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.509</SECTNO> <SUBJECT>Disclosure to courts in proceedings in the nature of an inquest.</SUBJECT> <P>The Under Secretary for Benefits, Veterans Benefits Administration, Regional Counsels, and facility heads are authorized to make disclosures to courts of competent jurisdiction of such files, records, reports, and other documents as are necessary and proper evidence in proceedings in the nature of an inquest into the mental competency of claimants and other proceedings incident to the appointment and discharge of guardians, curators, or conservators to any court having jurisdiction of such fiduciaries in all matters of appointment, discharge, or accounting in such courts.</P> <CITA>[32 FR 10848, July 25, 1967]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.510</SECTNO> <SUBJECT>Disclosure to insurance companies cooperating with the Department of Justice in the defense of insurance suits against the United States.</SUBJECT> <P>Copies of records from the files of the Department of Veterans Affairs will, in the event of litigation involving commercial insurance policies issued by an insurance company cooperating with the Department of Justice in defense of insurance suits against the United States, be furnished to such companies without charge, provided the claimant or his or her duly authorized representative has authorized the release of the information contained in such records. If the release of information is not authorized in writing by the claimant or his or her duly authorized representative, information contained in the files may be furnished to such company if to withhold same would tend to permit the accomplishment of a fraud or miscarriage of justice. However, before such information may be released without the consent of the claimant, the request therefor must be accompanied by an affidavit of the representative of the insurance company, setting forth that litigation is pending, the character of the suit, and the purpose for which the information desired is to be used. If such information is to be used adversely to the claimant, the affidavit must set forth facts from which it may be determined by the General Counsel <PRTPAGE P="40"/>or Regional Counsel whether the furnishing of the information is necessary to prevent the perpetration of a fraud or other injustice. The averments contained in such affidavit should be considered in connection with the facts shown by the claimant's file, and, if such consideration shows the disclosure of the record is necessary and proper to prevent a fraud or other injustice, information as to the contents thereof may be furnished to the insurance company or copies of the records may be furnished to the court, workmen's compensation, or similar board in which the litigation is pending upon receipt of a subpoena duces tecum addressed to the Secretary of Veterans Affairs, or the head of the office in which the records desired are located. In the event the subpoena requires the production of the file, as distinguished from the copies of the records, no expense to the Department of Veterans Affairs may be involved in complying therewith, and arrangements must be made with the representative of the insurance company causing the issuance of the subpoena to insure submission of the file to the court without expense to the Department of Veterans Affairs.</P> <CITA>[32 FR 10848, July 25, 1967]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.511</SECTNO> <SUBJECT>Disclosure of claimant records in connection with judicial proceedings generally.</SUBJECT> <P>(a)(1) Where a suit (or legal proceeding) has been threatened or instituted against the Government, or a prosecution against a claimant has been instituted or is being contemplated, the request of the claimant or his or her duly authorized representative for information, documents, reports, etc., shall be acted upon by the General Counsel in Central Office, or the Regional Counsel for the field facility, who shall determine the action to be taken with respect thereto. Where the records have been sent to the Department of Justice in connection with any such suit (or legal proceeding), the request will be referred to the Department of Justice, Washington, DC, through the office of the General Counsel, for attention. Where the records have been sent to an Assistant U.S. Attorney, the request will be referred by the appropriate Regional Counsel to the Assistant U.S. Attorney. In all other cases where copies of documents or records are desired by or on behalf of parties to a suit (or legal proceeding), whether in a Federal court or any other, such copies shall be disclosed as provided in paragraphs (b) and (c) of this section where the request is accompanied by court process, or paragraph (e) of this section where the request is not accompanied by court process. A court process, such as a court order or subpoena duces tecum should be addressed to either the Secretary of Veterans Affairs or to the head of the field facility at which the records desired are located. The determination as to the action to be taken upon any request for the disclosure of claimant records received in this class of cases shall be made by the component having jurisdiction over the subject matter in Central Office, or the division having jurisdiction over the subject matter in the field facility, except in those cases in which representatives of the component or division have determined that the records desired are to be used adversely to the claimant, in which event the process will be referred to the General Counsel in Central Office or to the Regional Counsel for the field facility for disposition.</P> <P>(2) Where a claim under the provisions of the Federal Tort Claims Act has been filed, or where such a claim can reasonably be anticipated, no information, documents, reports, etc., will be disclosed except through the Regional Counsel having jurisdiction, who will limit the disclosure of information to that which would be available under discovery proceedings, if the matter were in litigation. Any other information may be disclosed only after concurrence in such disclosure is provided by the General Counsel.</P> <P>(b) <E T="03">Disclosures in response to Federal court process</E>—(1) <E T="03">Court order.</E> Except for drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment records, which are protected under 38 U.S.C. 7332, where the records sought are maintained in a VA Privacy Act system of records, and are retrieved by the name or other personal identifier of a living claimant who is a citizen of the United States or <PRTPAGE P="41"/>an alien lawfully admitted for permanent residence, a Federal court order is the process necessary for the disclosure of such records. Upon receipt of a Federal court order directing disclosure of claimant records, such records will be disclosed. Disclosure of records protected under 38 U.S.C. 7332 will be made in accordance with provisions of paragraph (g) of this section.</P> <P>(2) <E T="03">Subpoena.</E> Except for drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment records, which are protected under 38 U.S.C. 7332, where the records sought are maintained in a VA Privacy Act system of records, and are retrieved by the name or other personal identifier of a claimant, a subpoena is not sufficient authority for the disclosure of such records and such records will not be disclosed, unless the claimant is deceased, or either is not a citizen of the United States, or is an alien not lawfully admitted for permanent residence. Where one of these exceptions applies, upon receipt of a Federal court subpoena, such records will be disclosed. Additionally, where the subpoena is accompanied by authorization from the claimant, disclosure will be made. Regarding the disclosure of medical records pertaining to drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment, a subpoena is insufficient for such disclosure. Specific provisions for the disclosure of these records are set forth in paragraph (g) of this section.</P> <P>(3) A disclosure of records in response to the receipt of a Federal court process will be made to those individuals designated in the process to receive such records, or to the court from which the process issued. Where original records are produced, they must remain at all times in the custody of a representative of the Department of Veterans Affairs, and, if offered and received in evidence, permission should be obtained to substitute a copy so that the original may remain intact in the record. Where a court process is issued by or on behalf of a party litigant other than the United States, such party litigant must prepay the costs of copies in accordance with fees prescribed by § 1.526(i) and any other costs incident to producing the records.</P> <P>(c) <E T="03">Disclosures in response to state or local court processs</E>—(1) <E T="03">State or local court order.</E> Except for drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment records, which are protected under 38 U.S.C. 7332, where the records sought are maintained in a VA Privacy Act system of records, and are retrieved by the name or other personal identifier of a living claimant who is a citizen of the United States or an alien lawfully admitted for permanent residence, a State or local court order is the process necessary for disclosure of such records. Upon receipt of a State or local court order directing disclosure of claimant records, disclosure of such records will be made in accordance with the provisions set forth in paragraph (c)(3) of this section. Disclosure of records protected under 38 U.S.C. 7332 will be made in accordance with provisions of paragraph (g) of this section.</P> <P>(2) <E T="03">State or local court subpoena.</E> Except for drug and alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment records, which are protected under 38 U.S.C. 7332, where the records sought are maintained in a VA Privacy Act system of records, and are retrieved by the name or other personal identifier of a claimant, a subpoena is not sufficient authority for disclosure of such records and such records will not be disclosed unless the claimant is deceased, or, either is not a citizen of the United States, or is an alien not lawfully admitted for permanent residence. Where one of these exceptions applies, upon receipt of a State or local court subpoena directing disclosure of claimant records, disclosure of such records will be made in accordance with the provisions set forth in paragraph (c)(3), of this section. Regarding the disclosure of 7332 records, a subpoena is insufficient for such disclosure. Specific provisions for the disclosure of these records are set forth in paragraph (g) of this section.</P> <P>(3) Where the disclosure provisions of paragraph (c) (1) or (2) of this section apply, disclosure will be made as follows:</P> <P>(i) When the process presented is accompanied by authority from the claimant; or,<PRTPAGE P="42"/> </P> <P>(ii) In the absence of claimant disclosure authority, the Regional Counsel having jurisdiction must determine whether the disclosure of the records is necessary to prevent the perpetration of fraud or other injustice in the matter in question. To make such a determination, the Regional Counsel may require such additional documentation, <E T="03">e.g.</E>, affidavit, letter of explanation, or such other documentation which would detail the need for such disclosure, set forth the character of the pending suit, and the purpose for which the documents or records sought are to be used as evidence. The claimant's record may also be considered in the making of such determination. Where a court process is received, and the Regional Counsel finds that additional documentation will be needed to make the foregoing determination, the Regional Counsel, or other employee having reasonable knowledge of the requirements of this regulation, shall contact the person causing the issuance of such court process, and advise that person of the need for additional documentation. Where a court appearance is appropriate, and the Regional Counsel has found that there is an insufficient basis upon which to warrant a disclosure of the requested information, the Regional Counsel, or other employee having reasonable knowledge of the requirement of this regulation and having consulted with the Regional Counsel, shall appear in court and advise the court that VA records are confidential and privileged and may be disclosed only in accordance with applicable Federal regulations, and to further advise the court of such regulatory requirements and how they have not been satisified. Where indicated, the Regional Counsel will take appropriate action to have the matter of disclosure of the affected records removed to Federal court.</P> <P>(4) Any disclosure of records in response to the receipt of State or local court process will be made to those individuals designated in the process to receive such records, or to the court from which such process issued. Payment of the fees as prescribed by § 1.526(i), as well as any other cost incident to producing the records, must first be deposited with the Department of Veterans Affairs by the party who caused the process to be issued. The original records must remain at all times in the custody of a representative of the Department of Veterans Affairs, and, if there is an offer and admission of any record or document contained therein, permission should be obtained to substitute a copy so that the original may remain intact in the record.</P> <P>(d) Notice requirements where disclosures are made pursuant to court process. Whenever a disclosure of Privacy Act protected records is made in response to the process of a Federal, State, or local court, the custodian of the records disclosed will make reasonable efforts to notify the subject of such records that such subject's records were disclosed to another person under compulsory legal process. Such notice should be accomplished when the process compelling disclosure becomes a matter of public record. Generally, a notice sent to the last known address of the subject would be sufficient to comply with this requirement.</P> <P>(e) Disclosures in response to requests when not accompanied by court process. Requests received from attorneys or others for copies of records for use in suits in which the Government is not involved, not accompanied by a court process, will be handled by the component or division having jurisdiction over the subject matter. If the request can be complied with under § 1.503 or § 1.504, and under the Privacy Act (to the extent that such records are protected by the Privacy Act), the records requested will be disclosed upon receipt of the required fee. If, however, the records cannot be furnished under such authority, the applicant will be advised of the procedure to obtain copies of records as set forth in paragraphs (b) and (c) of this section.</P> <P>(f) Suits by or against the Secretary under 38 U.S.C. 3720. Records pertaining to the loan guaranteed, insured, or made by the Department of Veterans Affairs may be made available by the General Counsel or the Regional Counsel subject to the usual rules of evidence, and where authorized under the Privacy Act, after clearance <PRTPAGE P="43"/>with the Department of Justice or U.S. Attorney if appropriate.</P> <P>(g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency virus and sickle cell anemia treatment or related records under court process. Disclosure of these types of records, which are protected from unauthorized disclosure under 38 U.S.C. 7332, may be made only in response to an appropriate order of a court of competent jurisdiction granted after application showing good cause therefore. In assessing good cause the court is required to weigh the public interest and the need for disclosure against the injury to the patient or subject, to the physician-patient relationship, and to the treatment services. The court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure. As to a Federal court order satisfying the requirements of this paragraph, the records will be disclosed as provided in such order. As to a State or local court order satisfying the requirements of this subsection, the disclosure of the records involved is conditioned upon satisfying the provisions set forth in paragraph (c)(3) of this section. If the aforementioned section is satisfied, and a disclosure of records is to be forthcoming, the records will be disclosed as provided in the court order.</P> <SECAUTH>(Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C. 7332)</SECAUTH> <CITA>[56 FR 15833, Apr. 18, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.512</SECTNO> <SUBJECT>Disclosure of loan guaranty information.</SUBJECT> <P>(a) The disclosure of records or information contained in loan guaranty files is governed by the Freedom of Information Act, 5 U.S.C. 552; the Privacy Act, 5 U.S.C. 552a; the confidentiality provisions of 38 U.S.C. 5701, and the provisions of 38 CFR 1.500-1.584. In addition, the release of names and addresses and the release of certificates of reasonable value, appraisal reports, property inspection reports, or reports of inspection on individual water supply and sewage disposal systems shall be governed by paragraphs (b), (c), (d), and (e) of this section.</P> <P>(b)(1) Upon request, any person is entitled to obtain copies of certificates of reasonable value, appraisal reports, property inspection reports, or reports of inspection on individual water supply and sewage disposal systems provided that the individual identifiers of the veteran-purchaser(s) or dependents are deleted prior to release of such documents. However, individual identifiers may be disclosed in accordance with paragraph (b)(2) of this section. The address of the property being appraised or inspected shall not be considered an individual identifier. </P> <PARAUTH>(Authority: 38 U.S.C. 5701(a), (c))</PARAUTH> <P>(2) Individual identifiers of veteran purchasers or dependents may be disclosed when disclosure is made to the following:</P> <P>(i) The individual purchasing the property;</P> <P>(ii) The current owner of the property;</P> <P>(iii) The individual that requested the appraisal or report;</P> <P>(iv) A person or entity which is considering making a loan to an individual with respect to the property concerned; or</P> <P>(v) An attorney, real estate broker, or any other agent representing any of these persons. </P> <PARAUTH>(Authority: 38 U.S.C. 5701(c), (h)(2)(D))</PARAUTH> <P>(c)(1) The Secretary may release the name, address, or both, and may release other information relating to the identity of an applicant for or recipient of a Department of Veterans Affairs-guaranteed, insured, or direct loan, specially adapted housing grant, loan to finance acquisition of Department of Veterans Affairs-owned property, release of liability, or substitution of entitlement to credit reporting agencies, companies or individuals extending credit, depository institutions, insurance companies, investors, lenders, employers, landlords, utility companies and governmental agencies for any of the purposes specified in paragraph (c)(2) of this section.</P> <P>(2) A release may be made under paragraph (c)(1) of this section:</P> <P>(i) To enable such parties to provide the Department of Veterans Affairs with data which assists in determining <PRTPAGE P="44"/>the creditworthiness, credit capacity, income or financial resources of the applicant for or recipient of loan guaranty administered benefits, or verifying whether any such data previously received is accurate; or</P> <P>(ii) To enable the Secretary to offer for sale or other disposition any loan or installment sale contract. </P> <PARAUTH>(Authority: 38 U.S.C. 5701(h)(2)(A), (B), (C))</PARAUTH> <P>(d) Upon request, the Secretary may release information relating to the individual's loan transaction to credit reporting agencies, companies or individuals extending credit, depository institutions, insurance companies, investors, lenders, employers, landlords, utility companies and governmental agencies where necessary in connection with a transfer of information on the status of a Department of Veterans Affairs loan account to persons or organizations proposing to extend credit or render services or other benefits to the borrower in order that the person or organization may determine whether to extend credit or render services or other benefits to the borrower. Such releases shall be made only if the person or organization seeking the information furnishes the individual's name, address or other information necessary to identify the individual. </P> <PARAUTH>(Authority: 38 U.S.C. 5701(e), (h)(2)(A) and (D))</PARAUTH> <P>(e) The Secretary shall maintain information in the loan guaranty file consisting of the date, notice and purpose of each disclosure, and the name and address of the person to whom the disclosure is made from the loan guaranty files.</P> <SECAUTH>(Authority: 38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))</SECAUTH> <CITA>[47 FR 11279, Mar. 16, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.513</SECTNO> <SUBJECT>Disclosure of information contained in Armed Forces service and related medical records in Department of Veterans Affairs custody.</SUBJECT> <P>(a) <E T="03">Service records.</E> Information received by the Department of Veterans Affairs from the Departments of the Army, Navy, Air Force, and the Department of Transportation relative to the military or naval service of a claimant is furnished solely for the official use of the Department of Veterans Affairs but such information may be disclosed under the limitations contained in §§ 1.501 through 1.526.</P> <P>(b) <E T="03">Medical records.</E> Information contained in the medical records (including clinical records and social data) may be released under the following conditions:</P> <P>(1) Complete transcript of resume<AC T="1"/> or medical records on request to:</P> <P>(i) The Department of the Army.</P> <P>(ii) The Department of the Navy (including naval aviation and United States Marine Corps).</P> <P>(iii) The Department of the Air Force.</P> <P>(iv) The Department of Transportation (Coast Guard).</P> <P>(v) Selective Service (in case of registrants only).</P> <P>(vi) Federal or State hospitals or penal institutions when the veteran is a patient or inmate therein.</P> <P>(vii) United States Public Health Service, or other governmental or contract agency in connection with research authorized by, or conducted for, the Department of Veterans Affairs.</P> <P>(viii) Registered civilian physicians, on the request of the individual or his or her legal representative, when required in connection with the treatment of the veteran. (The transcript or resume should be accompanied by the statement “it is expected that the information contained herein will be treated as confidential, as is customary in civilian professional medical practice.”)</P> <P>(ix) The veteran on request, except information contained in the medical record which would prove injurious to his or her physical or mental health.</P> <P>(x) The next of kin on request of the individual, or legal representative, when the information may not be disclosed to the veteran because it will prove injurious to his or her physical or mental health, and it will not be injurious to the physical or mental health of the next of kin or cause repugnance or resentment toward the veteran; and directly to the next of kin, or legal representative, when the veteran has been declared to be insane or is dead.<PRTPAGE P="45"/> </P> <P>(xi) Health and social agencies, on the authority of the veteran or his or her duly authorized representative.</P> <P>(2) In addition to the authorizations in paragraph (b)(1) of this section, the Department of Justice, the Department of the Treasury, and the U.S. Postal Service may, on request, be given pertinent information from medical records for use in connection with investigations conductedby these departments. Each such request shall be considered on its merits, and the information released should be the minimum necessary in connection with the investigation conducted by these departments.</P> <P>(3) Compliance with court orders calling for the production of medical records in connection with litigation or criminal prosecutions will be effected in accordance with § 1.511.</P> <CITA>[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60 FR 63938, Dec. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.514</SECTNO> <SUBJECT>Disclosure to private physicians and hospitals other than Department of Veterans Affairs.</SUBJECT> <P>(a) When a beneficiary elects to obtain medical attention as a private patient from a private practitioner or in a medical center other than a Department of Veterans Affairs hospital, there may be disclosed to such private practitioner or head of such medical center (Federal, State, municipal, or private), such information as to the medical history, diagnosis, findings, or treatment as is requested, including the loan of original X-ray films, whether Department of Veterans Affairs clinical X-rays or service department entrance and separation X-rays, provided there is also submitted a written authorization from the beneficiary or his or her duly authorized representative. The information will be supplied without charge directly to the private physician or medical center head and not through the beneficiary or representative. In forwarding this information, it will be accompanied by the stipulations that it is released with consent of or on behalf of the patient and that the information will be treated as confidential, as is customary in civilian professional medical practice.</P> <P>(b) Such information may be released without charge and without consent of the patient or his or her duly authorized representative when a request for such information is received from:</P> <P>(1) The superintendent of a State hospital for psychotic patients, a commissioner or head of a State department of mental hygiene, or head of a State, county, or city health department; or</P> <P>(2) Any fee basis physician or institution in connection with authorized treatment of the veteran as a Department of Veterans Affairs beneficiary; or</P> <P>(3) Any physician or medical installation treating the veteran under emergency conditions.</P> <CITA>[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.514a</SECTNO> <SUBJECT>Disclosure to private psychologists.</SUBJECT> <P>When a beneficiary elects to obtain therapy or analysis as a private patient from a private psychologist, such information in the medical record as may be pertinent may be released. Generally, only information developed and documented by Department of Veterans Affairs psychologists will be considered pertinent, although other information from the medical record may be released if it is determined to be pertinent and will serve a useful purpose to the private psychologist in rendering his or her services. Information will be released under this section upon receipt of the written authorization of the beneficiary or his or her duly authorized representative. Information will be forwarded to private psychologists directly, not through the beneficiary or representative, without charge and with the stipulation that it is released with consent of or on behalf of the patient and must be treated as confidential as is customary in regular professional practice.</P> <CITA>[34 FR 13368, Aug. 19, 1969]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.515</SECTNO> <SUBJECT>To commanding officers of State soldiers’ homes.</SUBJECT> <P>When a request is received in a Department of Veterans Affairs regional office, center, or medical center from the commanding officer of a State soldiers’ home for information other than <PRTPAGE P="46"/>information relative to the character of the discharge from a Department of Veterans Affairs center or medical center concerning a veteran formerly domiciled or hospitalized therein, the provisions of § 1.500 are applicable, and no disclosure will be made unless the request is accompanied by the authorization outlined in § 1.503. However, station heads, upon receipt of a request from the commanding officer of a State soldiers’ home for the character of the discharge of a veteran from a period of hospital treatment or domiciliary care as a beneficiary of the Department of Veterans Affairs, will comply with the request, restricting the information disclosed solely to the character of the veteran's discharge from such treatment or care. Such information will be disclosed only upon receipt of a specific request therefor from the commanding officer of a State soldiers’ home.</P> <CITA>[30 FR 6435, May 8, 1965]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.516</SECTNO> <SUBJECT>Disclosure of information to undertaker concerning burial of a deceased veteran.</SUBJECT> <P>When an undertaker requests information believed to be necessary in connection with the burial of a deceased veteran, such as the name and address of the beneficiary of the veteran's Government insurance policy, name and address of the next of kin, rank or grade of veteran and organization in which he or she served, character of the veteran's discharge, or date and place of birth of the veteran, and it appears that the undertaker is holding the body awaiting receipt of the information requested, the undertaker, in such instances, may be considered the duly authorized representative of the deceased veteran for the purpose of obtaining said information. In ordinary cases, however, the undertaker will be advised that information concerning the beneficiary of a Government insurance policy is confidential and cannot be disclosed; the beneficiary will be advised immediately of the inquiry, and the furnishing of the desired information will be discretionary with the beneficiary. In no case will the undertaker be informed of the net amount due under the policy or furnished information not specifically mentioned in this paragraph.</P> <CITA>[46 FR 62059, Dec. 22, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.517</SECTNO> <SUBJECT>Disclosure of vocational rehabilitation and education information to educational institutions cooperating with the Department of Veterans Affairs.</SUBJECT> <P>Requests from educational institutions and agencies cooperating with the Department of Veterans Affairs in the vocational rehabilitation and education of veterans for the use of vocational rehabilitation and education records for research studies will be forwarded to central office with the facility head's recommendation for review by the Under Secretary for Benefits. Where the request to conduct a research study is approved by the Under Secretary for Benefits, the facility head is authorized by this section to release information for such studies from vocational rehabilitation and education rec-ords as required: <E T="03">Provided, however,</E> That any data or information obtained shall not be published without prior approval of the Under Secretary for Benefits and that data contained in published material shall not identify any individual veteran.</P> <CITA>[30 FR 6435, May 8, 1965]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.518</SECTNO> <SUBJECT>Addresses of claimants.</SUBJECT> <P>(a) It is the general policy of the Department of Veterans Affairs to refuse to furnish addresses from its records to persons who desire such information for debt collection, canvassing, harassing or for propaganda purposes.</P> <P>(b) The address of a Department of Veterans Affairs claimant as shown by Department of Veterans Affairs files may be furnished to:</P> <P>(1) Duly constituted police or court officials upon official request and the submission of a certified copy either of the indictment returned against the claimant or of the warrant issued for his or her arrest.</P> <P>(2) Police, other law enforcement agencies, or Federal, State, county, or city welfare agencies upon official written request showing that the purpose of the request is to locate a parent who has deserted his or her child or children and that other reasonable efforts to obtain an address have failed. <PRTPAGE P="47"/>The address will not be released when such disclosure would be prejudicial to the mental or physical health of the claimant. When an address is furnished it will be accompanied by the stipulation that it is furnished on a confidential basis and may not be disclosed to any other individual or agency.</P> <P>(c) When an address is requested that may not be furnished under §§ 1.500 through 1.526, the person making the request will be informed that a letter, or in those cases involving judicial actions, the process or notice in judicial proceedings, enclosed in an unsealed envelope showing no return address, with the name of the addressee thereon, and bearing sufficient postage to cover mailing costs will be forwarded by the Department of Veterans Affairs. If a request indicates that judicial action is involved in which a process or notice in judicial proceedings is required to be forwarded, the Department of Veterans Affairs will inform the person who requests the forwarding of such a document that the envelope must bear sufficient postage to cover costs of mailing and certified or registered mailing fees, including cost of obtaining receipt for the certified or registered mail when transmission by this type special mail is desired. At the time the letter, process, or notice in judicial proceedings is forwarded, the facility's return address will be placed on the envelope. When the receipt for certified or registered mail or the undelivered envelope is returned to the Department of Veterans Affairs, the original sender will be notified thereof: However, the receipt or the envelope will be retained by the Department of Veterans Affairs. This provision will be applicable only when it does not interfere unduly with the functions of the Service or division concerned. In no event will letters be forwarded to aid in the collection of debts or for the purpose of canvassing, harassing, or propaganda. Neither will a letter be forwarded if the contents could be harmful to the physical or mental health of the recipient.</P> <P>(d) Subject to the conditions set forth in § 1.922, the Department of Veterans Affairs may disclose to consumer reporting agencies information contained in a debtor's claims folder. Such information may include the debtor's name and/or address, Department of Veterans Affairs file number, Social Security number, and date of birth.</P> <SECAUTH>(Authority: 38 U.S.C. 5701(g))</SECAUTH> <CITA>[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at 46 FR 62059, Dec. 22, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.519</SECTNO> <SUBJECT>Lists of names and addresses.</SUBJECT> <P>(a) Any organization wanting a list of names and addresses of present or former personnel of the armed services and their dependents from the Department of Veterans Affairs must make written application to the Department of Veterans Affairs Controller, except lists of educationally disadvantaged veterans should be requested from the Director of the nearest regional office. The application must:</P> <P>(1) Clearly identify the type or category of names and addresses sought;</P> <P>(2) Furnish proof satisfactory to the Department of Veterans Affairs that the organization seeking the list is a “nonprofit organization.” Normally, evidence establishing that the organization is exempt from taxation in accordance with the provisions of 26 U.S.C. 501 or is a governmental body or institution will be accepted as satisfying this criteria;</P> <P>(3) Contain a statement clearly setting forth the purpose for which the list is sought, the programs and the resources the organization proposes to devote to this purpose, and establish how such purpose is “directly connected with the conduct of programs and the utilization of benefits” under title 38, U.S.C.; and</P> <P>(4) Contain a certification that the organization, and all members thereof who will have access to the list, are aware of the penalty provisions of 38 U.S.C. 5701(f) and will not use the list for any purpose other than that stated in the application.</P> <P>(b) If the Director of the regional office concerned finds that the organization requesting the list of names and addresses of educationally disadvantaged veterans is a nonprofit organization and operates an approved program of special secondary, remedial, preparatory or other educational or supplementary assistance to veterans as provided under subchapter V, title 38 <PRTPAGE P="48"/>U.S.C., then he or she may authorize the release of such names and addresses to the organization requesting them.</P> <P>(c) The Associate Deputy Assistant Secretary for Information Resources Management, with the concurrence of the General Counsel, is authorized to release lists of names and addresses to organizations which have applied for such lists in accordance with paragraph (a) of this section if he or she finds that the purpose for which the organization desires the names and addresses is directly connected with the conduct of programs and the utilization of benefits under title 38 U.S.C. Lists of names and addresses authorized to be released pursuant to this paragraph shall not duplicate lists released to other elements, segments, or chapters of the same organization.</P> <P>(d) If the list requested is one that the Department of Veterans Affairs has previously compiled or created, in the same format, to carry out one or more of its basic program responsibilities and it is determined that it can be released, the list may be furnished without charge. For other types of lists, a charge will be made in accordance with the provisions of § 1.526.</P> <P>(e) Upon denial of a request, the Department of Veterans Affairs Controller or Regional Office Director will inform the requester in writing of the denial and the reasons therefor and advise the organization that it may appeal the denial to the General Counsel. In each instance of a denial of a request, the denial and the reasons therefor will be made a matter of record.</P> <P>(f) Section 5701(f), title 38 U.S.C., provides that any organization, or member thereof, which uses the names and addresses furnished it for any purpose other than one directly connected with the conduct of programs and the utilization of benefits under title 38 U.S.C., shall be fined not more than $500 in the case of the first offense and not more than $5,000 in the case of the subsequent offenses. Any instance in which there is evidence of a violation of these penal provisions will be reported in accordance with § 14.560.</P> <APPRO>(Approved by the Office of Management and Budget under control number 2900-0438)</APPRO> <CITA>[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981; 49 FR 32848, Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.520</SECTNO> <SUBJECT>Confidentiality of social data.</SUBJECT> <P>Persons having access to social data will be conscious of the fact that the family, acquaintances, and even the veteran have been willing to reveal these data only on the promise that they will be held in complete confidence. There will be avoided direct, ill-considered references which may jeopardize the personal safety of these individuals and the relationship existing among them, the patient, and the social worker, or may destroy their mutual confidence and influence, rendering it impossible to secure further cooperation from these individuals and agencies. Physicians in talking with beneficiaries will not quote these data directly but will regard them as indicating possible directions toward which they may wish to guide the patient's self-revelations without reproaching the patient for his or her behavior or arousing natural curiosity or suspicion regarding any informant's statement. The representatives of service organizations and duly authorized representatives of veterans will be especially cautioned as to their grave responsibility in this connection.</P> <CITA>[46 FR 62059, Dec. 22, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.521</SECTNO> <SUBJECT>Special restrictions concerning social security records.</SUBJECT> <P>Information received from the Social Security Administration may be filed in the veteran's claims folder without special provisions. Such information will be deemed privileged and may not be released by the Department of Veterans Affairs except that information concerning the amount of social security benefits paid to a claimant or the amount of social security tax contributions made by the claimant may be disclosed to the claimant or his or her <PRTPAGE P="49"/>duly authorized representative. Any request from outside the Department of Veterans Affairs for other social security information will be referred to the Social Security Administration for such action as they deem proper.</P> <CITA>[27 FR 9599, Sept. 28, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.522</SECTNO> <SUBJECT>Determination of the question as to whether disclosure will be prejudicial to the mental or physical health of claimant.</SUBJECT> <P>Determination of the question when disclosure of information from the files, records, and reports will be prejudicial to the mental or physical health of the claimant, beneficiary, or other person in whose behalf information is sought, will be made by the Chief Medical Director; Chief of Staff of a hospital; or the Director of an outpatient clinic.</P> <CITA>[33 FR 19009, Dec. 20, 1968]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.523</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.524</SECTNO> <SUBJECT>Persons authorized to represent claimants.</SUBJECT> <P>A duly authorized representative will be:</P> <P>(a) Any person authorized in writing by the claimant to act for him or her,</P> <P>(b) An attorney who has filed the declaration required by § 14.629(b)(1) of this chapter, or</P> <P>(c) His or her legally constituted fiduciary, if the claimant is incompetent. Where for proper reasons no legally constituted fiduciary has been or will be appointed, his or her spouse, his or her children, or, if the claimant is unmarried, either of his or her parents shall be recognized as the fiduciary of the claimant.</P> <CITA>[33 FR 6536, Apr. 30, 1968]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.525</SECTNO> <SUBJECT>Inspection of records by or disclosure of information to recognized representatives of organizations and recognized attorneys.</SUBJECT> <P>(a)(1) The accredited representatives of recognized organizations (§ 14.627 of this chapter) holding appropriate power of attorney and recognized attorneys (§ 14.629(b) of this chapter) with the written authorization of the claimant may, subject to the restrictions imposed by paragraph (a)(2) of this section, inspect the claims, insurance and allied folders of any claimant upon the condition that only such information contained therein as may be properly disclosed under §§ 1.500 through 1.526 will be disclosed by him or her to the claimant or, if the claimant is incompetent, to his or her legally constituted fiduciary. Under the same restrictions, it is permissible to release information from and permit inspection of loan guaranty folders in which a request for a waiver of the debt of a veteran or his or her spouse has been received, or where there has been a denial of basic eligibility for loan guaranty benefits. All other information in the files shall be treated as confidential and will be used only in determining the status of the cases inspected or in connection with the presentation to officials of the Department of Veterans Affairs of the claim of the claimant. The heads of field facilities and the directors of the services concerned in Central Office will each designate a responsible officer to whom requests for all files must be made, except that managers of centers with insurance activities will designate two responsible officials, recommended by the division chiefs concerned, one responsible for claims and allied folders and the other for insurance files. The term <E T="03">claimant</E> as used in this paragraph includes insureds.</P> <P>(2) In the case of a living veteran a representative acting under a power of attorney from any person not acting on behalf of the veteran will not be permitted to review the records of the veteran or be furnished any information therefrom to which the person is not entitled, i.e., information not relating to such person alone. Powers of attorney submitted by the other person will be considered “Limited” and will be so noted when associated with the veteran's records. The provisions of this subparagraph are also applicable to recognized attorneys and the requisite declarations filed by them.</P> <P>(3) When power of attorney does not obtain, the accredited representative will explain to the designated officer of the Department of Veterans Affairs the reason for requesting information from the file, and the information will be <PRTPAGE P="50"/>made available only when in the opinion of the designated officer it is justified; in no circumstances will such representatives be allowed to inspect the file; in such cases a contact report will be made out and attached to the case, outlining the reasons which justify the verbal or written release of the information to the accredited representative.</P> <P>(4) In any case where there is an unrevoked power of attorney or declaration of representation, no persons or organizations other than the one named in such document shall be afforded information from the file except under the conditions set forth in § 14.629(b)(2) of this chapter. When any claimant has filed notice with the Department of Veterans Affairs that he or she does not want his or her file inspected, such file will not be made available for inspection.</P> <P>(b)(1) Inspection of folders by accredited representatives or recognized attorneys holding a written authorization where such cases are being processed shall be in space assigned for such inspection. Otherwise station heads may permit inspection of folders at the desks of the accredited representatives, in the office(s) which they regularly occupy.</P> <P>(2) An insured or after maturity of the insurance by death of the insured, the beneficiary, may authorize the release to a third person of such insurance information as the insured or the beneficiary would be entitled to receive, provided there is submitted to the Department of Veterans Affairs, a specific authorization in writing for this purpose.</P> <P>(3) Unless otherwise authorized by the insured or the beneficiary, as the case may be, such authorized representative, recognized attorney or accredited representative shall not release information as to the designated beneficiary to anyone other than the insured or to the beneficiary after death of the insured. Otherwise, information in the insurance file shall be subject to the provisions of §§ 1.500 through 1.526.</P> <P>(4) Clinical records and medical files, including files for outpatient treatment, may be inspected by accredited representatives or recognized attorneys holding a written authorization only to the extent such records or parts thereof are incorporated in the claims folder, or are made available to Department of Veterans Affairs personnel in the adjudication of the claim. Records or data in clinical or medical files which are not incorporated in the claims folder or which are not made available to Department of Veterans Affairs personnel for adjudication purposes will not be inspected by anyone other than those employees of the Department of Veterans Affairs whose duties require same for the purpose of clinical diagnosis or medical treatment.</P> <P>(5) Under no circumstances shall any paper be removed from a file, except by a Department of Veterans Affairs employee, for purpose of having an authorized copy made. Copying of material in a file shall not be permitted except in connection with the performance of authorized functions under the power of attorney or requisite declaration of a recognized attorney.</P> <P>(6) In any case involving litigation against the Government, whether contemplated or initiated, inspection, subject to the foregoing, shall be within the discretion of the General Counsel or Regional Counsel, except that in insurance suits under 38 U.S.C. 1975, 1984, inspection shall be within the discretion of the official having jurisdiction of the claim. Files in such cases may be released to the Department of Justice, but close liaison will be maintained to insure their return intact upon termination of the litigation.</P> <P>(c) Facility heads and the directors of the services concerned in central office will be responsible for the administrative compliance with and accomplishment of the foregoing within their jurisdiction, and any violations of the prescribed conditions for inspection of files or release of information therefrom will be brought to the immediate attention of the Secretary.</P> <P>(d) Any person holding power of attorney, a recognized attorney who has filed the requisite declaration, or the accredited representative of a recognized organization holding power of attorney shall be supplied with a copy of each notice to the claimant respecting the adjudication of the claim. If a <PRTPAGE P="51"/>claimant dies before action on the claim is completed, the person or organization holding power of attorney or the attorney who has filed the requisite declaration may continue to act until the action is completed except where the power of attorney or requisite declaration was filed on behalf of a dependent.</P> <P>(e) When in developing a claim the accredited representative of a recognized organization finds it necessary to call upon a local representative to assemble information or evidence, he or she may make such disclosures to the local representative as the circumstances of the case may warrant, provided the power of attorney to the recognized organization contains an authorization permitting such disclosure.</P> <CITA>[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32 FR 10849, July 25, 1967; 33 FR 6536, Apr. 30, 1968]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.526</SECTNO> <SUBJECT>Copies of records and papers.</SUBJECT> <P>(a) Any person desiring a copy of any record or document in the custody of the Department of Veterans Affairs, which is subject to be furnished under §§ 1.501 through 1.526, must make written application for such copy to the Department of Veterans Affairs installation having custody of the subject matter desired, stating specifically: (1) The particular record or document the copy of which is desired and whether certified and validated, or uncertified, (2) the purpose for which such copy is desired to be used.</P> <P>(b) The types of services provided by the Department of Veterans Affairs for which fees will be charged are identified in paragraph (i) of this section.</P> <P>(c) This section applies to the services furnished in paragraph (b) of this section when rendered to members of the public by the Department of Veterans Affairs. It does not apply to such services when rendered to or for other agencies or branches of the Federal Government, or State and local governments when furnishing the service will help to accomplish an objective of the Department of Veterans Affairs, or when performed in connection with a special research study or compilation when the party requesting such services is charged an amount for the whole job.</P> <P>(d) When copies of a record or document are furnished under §§ 1.506, 1.507, 1.510, and 1.514, such copies shall be supplied without charge. Moreover, free service may be provided, to the extent of one copy, to persons who have been required to furnish original documents for retention by the Department of Veterans Affairs.</P> <P>(e) The following are circumstances under which services may be provided free at the discretion of facility heads or responsible Central Office officials:</P> <P>(1) When requested by a court, when the copy will serve as a substitute for personal court appearance of a Government witness.</P> <P>(2) When furnishing the service free saves costs or yields income equal to the direct costs of the agency providing the service. This includes cases where the fee for the service would be included in a billing against the Government (for example, in cost-type contracts, or in the case of private physicians who are treating Government beneficiaries at Government expense).</P> <P>(3) When a service is occasional and incidental, not of a type that is requested often, and if it is administratively determined that a fee would be inappropriate in such an occasional case.</P> <P>(f) When information, statistics, or reports are released or furnished under § 1.501 or § 1.519, the fee charge, if any, will be determined upon the merits of each individual application.</P> <P>(g) In those cases where it is determined that a fee shall be charged, the applicant will be advised to deposit the amount of the lawful charge for the copy desired. The amount of such charge will be determined in accordance with the schedule of fees prescribed in paragraph (i) of this section. The desired copy will not be delivered, except under court subpoena, until the full amount of the lawful charge is deposited. Any excess deposit of $1 or more over the lawful charge will be returned to the applicant. Excess deposits of less than $1 will be returned upon request. When a deposit is received with an application, such a deposit will be returned to the applicant should the application be denied.<PRTPAGE P="52"/> </P> <P>(h) Copies of reports or records received from other Government departments or agencies will not be furnished except as provided in § 1.513.</P> <P>(i) <E T="03">Fees to be charged.</E> </P> <P>(1) <E T="03">Schedule of fees:</E> </P> <GPOTABLE CDEF="s150,xs90" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Activity</CHED> <CHED H="1">Fees</CHED> </BOXHD> <ROW> <ENT I="01">(i) Duplication of document by any type of reproduction process to produce plain one-sided paper copies of a standard size (8<FR>1/2</FR>″ × 11″; 8<FR>1/2</FR>″ × 14″; 11″ × 14″)</ENT> <ENT>$0.15 per page after first 100 one-sided pages.</ENT> </ROW> <ROW> <ENT I="01">(ii) Duplication of non-paper records, such as microforms, audiovisual materials (motion pictures, slides, laser optical disks, video tapes, audiotapes, etc.) computer tapes and disks, diskettes for personal computers, and any other automated media output</ENT> <ENT>Actual direct cost to the Agency as defined in § 1.555(a)(2) of this part to the extent that it pertains to the cost of duplication.</ENT> </ROW> <ROW> <ENT I="01">(iii) Duplication of documents by any type of reproduction process not covered by paragraphs (i)(1) (i) and (ii) of this section to produce a copy in a form reasonably usable by a requester</ENT> <ENT>Actual direct cost to the Agency as defined in § 1.555(a)(2) of this part to the extent that it pertains to the cost of duplication.</ENT> </ROW> <ROW> <ENT I="01">(iv) Providing special information, statistics, reports, drawings, specifications, lists of names and addresses (either in paper or machine readable form), computer or other machine readable output</ENT> <ENT>Actual cost to the Agency including computer and manual search costs, copying costs, labor, and material and overhead expenses.</ENT> </ROW> <ROW> <ENT I="01">(v) Attestation under the seal of the Agency</ENT> <ENT>$3.00 per document so certified.</ENT> </ROW> <ROW> <ENT I="01">(vi) Providing abstracts or copies of medical and dental records to insurance companies for other than litigation purposes</ENT> <ENT>$10.00 per request.</ENT> </ROW> <ROW> <ENT I="01">(vii) Providing files under court subpoena</ENT> <ENT>Actual direct cost to the Agency.</ENT> </ROW> <TNOTE>(<E T="04">Note.</E> If VA regularly contracts for duplicating services related to providing the requested records, such as the duplication of microfilm or architect's plans and drawings, the contractor fees may be included in the actual direct cost to the Agency)</TNOTE> </GPOTABLE> <P>(2) <E T="03">Benefit records.</E> When VA benefit records are requested by a VA beneficiary or applicant for VA benefits, the duplication fee for one complete set of such records will be waived. </P> <PARAUTH>(Authority: 38 U.S.C. 5702(b))</PARAUTH> <P>(j) If the copy is to be transmitted by certified or registered mail, airmail, or special delivery mail, the postal fees therefor shall be added to the other fees provided in paragraph (i) of this section (or the order must include postage stamps or stamped return envelopes for the purpose).</P> <P>(k) Those Department of Veterans Affairs installations not having copying equipment are authorized to arrange with the nearest Department of Veterans Affairs installation having such equipment to make the necessary authorized copies of records or documents.</P> <P>(l) Administration, staff office, and field facility heads are authorized to designate employees to certify copies of records and papers furnished under the provisions of paragraph (a) of this section.</P> <CITA>[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33 FR 9342, June 26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4, 1972; 39 FR 3938, Jan. 31, 1974; 53 FR 10376, Mar. 31, 1988; 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.527</SECTNO> <SUBJECT>Administrative review.</SUBJECT> <P>(a) Any person may, in the event of a denial of his or her request to inspect or obtain information from or copies of records within the purview of §§ 1.501 through 1.526, appeal such denial. Such appeal, stating the circumstances of the denial, should be addressed, as appropriate, to the field facility, administration, or staff office head.</P> <P>(b) A denial action not reversed by a field facility, administration, or staff office head on appeal, will be referred through normal channels to the General Counsel.</P> <P>(c) The final agency decision in such appeals will be made by the General Counsel or the Deputy General Counsel.</P> <CITA>[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]</CITA> </SECTION> <SUBJGRP> <PRTPAGE P="53"/> <HD SOURCE="HED">Release of Information From Department of Veterans Affairs Records Other Than Claimant Records</HD> </SUBJGRP> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Sections 1.550 through 1.559 concern the availability and release of information from files, records, reports, and other papers and documents in Department of Veterans Affairs custody other than those pertaining to claims under any of the laws administered by the Department of Veterans Affairs. As to the release of information from Department of Veterans Affairs claimant records, see §§ 1.500 through 1.527. Section 1.550 series implement the provisions of 5 U.S.C. 552.</P> </NOTE> <CITA>[40 FR 12656, Mar. 20, 1975]</CITA> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38 U.S.C. 501.</P> </AUTH> <SECTION> <SECTNO>§ 1.550</SECTNO> <SUBJECT>General.</SUBJECT> <P>The Department of Veterans Affairs policy is one of disclosure of information from agency records to the extent permitted by law. This includes the release of information which the Department of Veterans Affairs is authorized to withhold under 5 U.S.C. 552(b) (see § 1.554) if it is determined: (a) By the Secretary of Veterans Affairs or the Deputy Secretary that disclosure of such information will serve a useful purpose or (b) by an administration, staff office, or field facility head or designee under § 1.556(a) that disclosure will not adversely affect the proper conduct of official business or constitute an invasion of personal privacy.</P> <CITA>[40 FR 12656, Mar. 20, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.551</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.552</SECTNO> <SUBJECT>Public access to information that affects the public when not published in the Federal Register as constructive notice.</SUBJECT> <P>(a) All final orders in such actions as entertained by the Contract Appeals Board, those statements of policy and interpretations adopted by the Department of Veterans Affairs but not published in the <E T="04">Federal Register</E>, and administrative manuals and staff instructions that affect any member of the public, unless promptly published and copies offered for sale, will be kept currently indexed by the office of primary program responsibility or the Manager, Administrative Services, as determined by the Secretary or designee. Such index or indexes or supplements thereto will be promptly published, quarterly or more frequently, and distributed (by sale or otherwise) unless the Department of Veterans Affairs determines by order published in the <E T="04">Federal Register</E> that publication would be unnecessary and impracticable, in which case the Department of Veterans Affairs will nonetheless provide copies of such index or indexes or supplements thereto on request at a cost not to exceed the direct cost of duplication. Both the index and the materials indexed as required by this paragraph will be made available to the public, for inspection and copying. Public reading facilities for this purpose will be maintained in Department of Veterans Affairs Central Office and Department of Veterans Affairs field facilities, open to the public during the normal duty hours of the office in which located. Orders made in the adjudication of individual claims under laws administered by the Department of Veterans Affairs are confidential and privileged by statute (38 U.S.C. 5701) and so are exempt from this requirement.</P> <P>(b) The voting records of the Contract Appeals Board will be maintained in a public reading facility in the Office of the Board in Central Office and made available to the public upon request.</P> <P>(c) When publishing or making available to the public any opinion, order, statement of policy, interpretation, staff manual or instruction to staff, identifying details will be deleted, and the deletion justified in writing, to the extent required to prevent a clearly unwarranted invasion of personal privacy.</P> <P>(d) No final order, opinion, statement of policy, interpretation, staff manual or instruction which is issued, adopted, or promulgated after July 4, 1967, that affects any member of the public may be relied upon, used, or cited as precedent against any private party unless it has been indexed and either made available or published as provided in this section or unless that private party shall have actual and timely notice of the terms thereof.</P> <CITA>[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975]</CITA> </SECTION> <SECTION> <PRTPAGE P="54"/> <SECTNO>§ 1.553</SECTNO> <SUBJECT>Public access to other reasonably described records.</SUBJECT> <P>(a) Except for requests for records which are processed under §§ 1.551 and 1.552 of this part, unless otherwise provided for in title 38, Code of Federal Regulations, all requests for records shall be processed under paragraph (b) of this section, as well as under any other VA law or regulation governing access to or confidentiality of records or information. Records or information customarily furnished to the public in the regular course of the performance of official duties may be furnished to the public without reference to paragraph (b) of this section. To the extent permitted by other laws and regulations, VA will also consider making available records which it is permitted to withhold under the FOIA if it determines that such disclosure could be in the public interest.</P> <P>(b) Reasonably described records in VA custody, or copies thereof, other than records made available to the public under provisions of §§ 1.551 and 1.552 of this part, or unless otherwise provided for in title 38, Code of Federal Regulations, requested in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, will be made promptly available, except as provided in § 1.554 of this part, to any person upon request. Such request must be in writing, over the signature of the requester and must contain a reasonable description of the record desired so that it may be located with relative ease. The request should be made to the office concerned (having jurisdiction of the record desired) or, if not known, to the Director or Veterans Services Officer in the nearest VA regional office; the Director, or Chief, Medical Administration Service, or other responsible official of VA medical facility where most recently treated; or to the Department of Veterans Affairs Central Office, 810 Vermont Avenue NW., Washington, DC 20420. Personal contacts should normally be made during the regular duty hours of the office concerned, which are 8 a.m. to 4:30 p.m. Monday through Friday for VA Central Office and most field facilites.</P> <SECAUTH>(Authority: 5 U.S.C. 552(a)(3))</SECAUTH> <CITA>[53 FR 10377, Mar. 31, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.553a</SECTNO> <SUBJECT>Time limits for Department of Veterans Affairs response to requests for rec-ords.</SUBJECT> <P>(a) When a request for records made under § 1.551, § 1.552 or § 1.553 is received it will be promptly referred for action to the proper employee designated in accordance with § 1.556 to take initial action on granting or denying requests to inspect or obtain information from or copies of the records described.</P> <P>(b) Any such request will then be promptly evaluated and a determination made within 10 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of the request whether the Department of Veterans Affairs will comply with the request. Upon determination to comply or deny the request the person making the request will be notified immediately of the determination and the reasons therefor, and of the right of the person to appeal to the Secretary of Veterans Affairs any adverse determination. Records to be furnished will be supplied promptly.</P> <P>(c) Upon receipt of such an appeal from an adverse determination it will be evaluated and a further determination made within 20 days (excepting Saturdays, Sundays, and legal public holidays) after receipt of the appeal. If on appeal the denial is in whole or in part upheld the Department of Veterans Affairs will notify the requester of the provisions for judicial review of this determination. (See §§ 1.557 and 1.558.)</P> <P>(d) In unusual circumstances, specifically as follows, the time limits in paragraphs (b) and (c) of this section may be extended by written notice to the requester setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. The date specified will not result in an extension for more than 10 working days. <E T="03">Unusual circumstances</E> will be interpreted to mean, <PRTPAGE P="55"/>but only to the extent reasonably necessary to the proper processing of the particular request, as follows:</P> <P>(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;</P> <P>(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or</P> <P>(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the Department of Veterans Affairs having substantial subject-matter interest therein.</P> <P>(e) Pursuant to section 552(a)(6), title 5 U.S.C., any person making a request to the Department of Veterans Affairs for records under section 552(a) (1), (2) or (3) (see §§ 1.551, 1.552 and 1.553) will be deemed to have exhausted his or her administrative remedies with respect to such request if the Department of Veterans Affairs fails to comply with the applicable time limit provisions of this section. If, however, the Government can show exceptional circumstances exist and that the Department of Veterans Affairs is exercising due diligence in responding to the request, the statute also permits the court to retain jurisdiction and allow the Department of Veterans Affairs additional time to complete its review of the records.</P> <P>(f) Requests for the release of information from files, records, reports, and other papers and documents in Department of Veterans Affairs custody pertaining to claims under any of the laws administered by the Department of Veterans Affairs (covered by §§ 1.500 through 1.527) may also be initiated under 5 U.S.C. 552. Such requests will also be evaluated, a determination made within 10 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of the request whether the Department of Veterans Affairs will comply with the request, and the requester notified immediately of the determination and the reasons therefor, and of the right of the person to appeal to the Secretary of Veterans Affairs any adverse determination. Records to be furnished will be supplied promptly.</P> <CITA>[40 FR 12657, Mar. 20, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.554</SECTNO> <SUBJECT>Exemptions from public access to agency records.</SUBJECT> <P>(a) The exemptions in this paragraph constitute authority to withhold from disclosure certain categories of information in Department of Veterans Affairs records except that any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this paragraph.</P> <P>(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of the national defense or foreign policy, and are in fact properly classified pursuant to such Executive order.</P> <P>(2) Related solely to internal Department of Veterans Affairs personnel rules and practices.</P> <P>(3) Specifically exempted from disclosure by statute other than 5 U.S.C. 552b, provided that such statute:</P> <P>(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or</P> <P>(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.</P> <P>(4) Trade secrets and commercial or financial information obtained from any person and privileged or confidential.</P> <P>(5) Interagency or intra-agency memorandums or letters which would not be available by law to a private party in litigation with the Department of Veterans Affairs.</P> <P>(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.</P> <P>(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:</P> <P>(i) Could reasonably be expected to interfere with enforcement proceedings;<PRTPAGE P="56"/> </P> <P>(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;</P> <P>(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;</P> <P>(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;</P> <P>(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or</P> <P>(vi) Could reasonably be expected to endanger the life or physical safety of any individual. </P> <PARAUTH>(Authority: 5 U.S.C. 552(b)(7))</PARAUTH> <P>(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.</P> <P>(9) Geological and geophysical information and data (including maps) concerning wells.</P> <P>(b) Information in the categories exempted under paragraph (a) of this section, other than in paragraph (a)(3) which is applicable to Department of Veterans Affairs claimant records, will be released only as authorized in § 1.550. The release of information from Department of Veterans Affairs claimant records will be made only in accordance with §§ 1.501 through 1.526.</P> <P>(c)(1) Whenever a request is made which involves access to records described in paragraph (a)(7)(i) of this section and</P> <P>(i) The investigation or proceeding involves a possible violation of criminal law, and</P> <P>(ii) There is reason to believe that</P> <P>(A) The subject of the investigation or proceeding is not aware of its pendency, and</P> <P>(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the Agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.</P> <P>(2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the Department may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.</P> <SECAUTH>(Authority: 5 U.S.C. 552(c)(1) and (c)(2))</SECAUTH> <CITA>[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975; 42 FR 37976, July 26, 1977; 53 FR 9442, Mar. 23, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.554a</SECTNO> <SUBJECT>Predisclosure notification procedures for confidential commercial information.</SUBJECT> <P>(a) <E T="03">General.</E> During the conduct of its business the Department of Veterans Affairs (VA) may acquire records which contain confidential commercial information, as defined in paragraph (b) of this section. Such records will not be released in response to a Freedom of Information Act (FOIA) request, except under the provisions of this section. This section establishes uniform VA procedures for giving submitters predisclosure notice of requests for their records which contain confidential commercial information that may be exempt from disclosure under 38 CFR 1.554(a)(4). These procedures are required by Executive Order 12600, Predisclosure Notification Procedures for Confidential Commercial Information, dated June 23, 1987.</P> <P>(b) <E T="03">Definitions—</E>(1) <E T="03">Confidential commercial information</E> means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552 (b)(4), as implemented by § 1.554 of this part, because disclosure could reasonably be expected to cause substantial competitive harm.<PRTPAGE P="57"/> </P> <P>(2) <E T="03">Submitter</E> means any person or entity who provides confidential commercial information to the government. The term “submitter” includes, but is not limited to corporations, State governments, and foreign governments.</P> <P>(c) <E T="03">Notification to submitters of confidential commercial information.</E> When a request is received, for a submitter's record(s), or information which contains confidential commercial information, and the request is being processed under the FOIA, 5 U.S.C. 552, the submitter will be promptly notified in writing of the request when required by paragraph (d) of this section. The notification will advise the submitter that a request for its record(s) has been received and is being processed under the FOIA. The notice will describe the exact nature of the record(s) requested or will provide to the submitter copies of the record(s) or portions thereof containing the requested confidential commercial information. It will also inform the submitter of the opportunity to object to the disclosure in writing within 10 working days, and of the requirements for such a written objection, as described in paragraph (f) of this section. The notification will be sent by certified mail, return receipt requested.</P> <P>(d) <E T="03">When notification is required.</E> (1) For confidential commercial information submitted to VA prior to January 1, 1988, notification to submitters is required whenever:</P> <P>(i) The records are less than 10 years old and the requested information has been designated by the submitter as confidential commercial information; or</P> <P>(ii) VA facility, administration, or staff office which has custody of the requested records has reason to believe that disclosure of the requested information could reasonably be expected to cause substantial competitive harm.</P> <P>(2) For confidential commercial information submitted to VA on or after January, 1, 1988, notification is required whenever:</P> <P>(i) The submitter has in good faith designated the requested records as confidential information in accordance with paragraph (e) of this section; or</P> <P>(ii) VA facility, administration, or staff office which has custody of the requested records has reason to believe that disclosure could reasonably be expected to cause substantial competitive harm.</P> <P>(e) <E T="03">Designation by submitters of information as confidential commercial information.</E> (1) When business records are provided to VA, the submitter may appropriately designate any records or portions thereof which contain confidential commercial information, the disclosure of which could reasonably be expected to cause substantial competitive harm. This designation may be made at the time the information or record is given to VA or within a reasonable period of time thereafter, but not later than 60 days after receipt of the information by VA. Information so designated will be clearly identified by marking it with the words “confidential commercial information” or by an accompanying detailed written description of the specific kinds of information that is designated. If a complete document or record is designated, the cover page of the document or record will be clearly marked “This entire (document, record, etc.) consists of confidential commercial information.” If only portions of documents are designated, only those specific designated portions will be conspicuously annotated as “confidential commercial information.”</P> <P>(2) A designation described in paragraph (e)(1) of this section will remain in effect for a period of not more than 10 years after submission to VA, unless the submitter provides acceptable justification for a longer specific period. If a shorter designation period is adequate, the submitter's designation should include the earlier expiration date. Whenever possible, the submitter's designation should be supported by a statement or certification by an officer or authorized representative of the submitter that the records are in fact confidential commercial information and have not been published or made available to the public.</P> <P>(f) <E T="03">Opportunity to object to disclosure.</E> (1) When notification to a submitter is made pursuant to paragraph (c) of this section, the submitter or designee may object to the disclosure of any specified portion of the record(s). Such objection will be in writing, will be addressed to <PRTPAGE P="58"/>the VA official who provided notice, will identify the specific record(s) or portion(s) of records that should not be disclosed, will specify all grounds upon which disclosure is opposed, and will explain in detail why the information is considered to be a trade secret or confidential commercial information, i.e., why disclosure of the specified records could reasonably be expected to cause substantial competitive harm. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.</P> <P>(2) Any objection to disclosure must be submitted within 10 working days after receipt by the submitter of notification as provided for in paragraph (c) of this section.</P> <P>(3) If an objection to disclosure is received within the 10 working day time period, careful consideration will be given to all specified grounds for nondisclosure prior to making an administrative determination whether to disclose the record. When it is determined to disclose the requested record(s) or portions of records which are the subject of an objection, the submitter will be provided a written statement of the VA decision, the reason(s) that the submitter's objections to disclosure were overruled, a description or copy of the exact information or record(s) to be disclosed which were the subject of an objection, and the specified date of disclosure. The date of disclosure will not be less than 10 working days from the date this notice is placed into mail delivery channels.</P> <P>(g) <E T="03">Notices to requester.</E> (1) When a request is received for records that may contain confidential commercial information protected by FOIA exemption (b)(4), 5 U.S.C. 552(B)(4), the requester will be notified that the request is being processed under the provisions of this regulation and, as a consequence, there may be a delay in receiving a response.</P> <P>(2) Whenever a submitter is notified, pursuant to paragraph (c) of this section, that VA has received a request for records which had been provided by such submitter, and that such request was being processed under the FOIA, the requester will be notified that the submitter is being provided an opportunity to comment on the request. The notice to the requester should not include any of the specific information contained in the records being requested.</P> <P>(3) Whenever VA notifies a submitter of a final decision, the requester will also be notified by separate correspondence. This notification to the requester may be contained in VA's FOIA decision.</P> <P>(h) <E T="03">Notices of lawsuit.</E> Whenever a FOIA requester brings suit seeking to compel disclosure of confidential commercial information, the submitter of the information will be promptly notified.</P> <P>(i) <E T="03">Exceptions to the notification requirements.</E> The predisclosure notification requirements in paragraph (c) of this section need not be followed if:</P> <P>(1) It is determined that the record(s) or information should not be disclosed;</P> <P>(2) The record(s) requested have been published or have been officially made available to the public;</P> <P>(3) Disclosure of the record(s) or information is required by law (other than the FOIA, 5 U.S.C. 552);</P> <P>(4) Disclosure is required by an Agency rule that:</P> <P>(i) Was adopted pursuant to notice and public comment;</P> <P>(ii) Specifies narrow classes of records submitted to VA that are to be released under the FOIA; and</P> <P>(iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm;</P> <P>(5) The record(s) requested are not designated by the submitter as exempt from disclosure in accordance with paragraph (e) of this section, and the submitter had an opportunity to do so at the time of submission of the record(s) or a reasonable time thereafter, and VA does not have substantial reason to believe that disclosure of the information would result in competitive harm; or</P> <P>(6) The designation made by the submitter in accordance with paragraph (e) of this section appears obviously frivolous, except that, in such case, VA <PRTPAGE P="59"/>must still provide the submitter with advance written notice of any final administrative disclosure determination not less than 10 working days prior to the specified disclosure date.</P> <APPRO>(Approved by the Office of Management and Budget under control number 2900-0393)</APPRO> <SECAUTH>(Authority: 38 U.S.C. 501; 5 U.S.C. 552(b)(4): E.O. 12600 (52 FR 23781))</SECAUTH> <CITA>[57 FR 2229, Jan. 21, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.555</SECTNO> <SUBJECT>Fees.</SUBJECT> <P>(a) <E T="03">Definitions of terms.</E> For the purpose of this section, the following definitions apply:</P> <P>(1) <E T="03">Commercial use request</E> means a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made. To determine whether a request properly belongs in this category, consideration must be given to the use to which a requester will put the documents requested. Where the use of the records sought is not clear in the request or where there is reasonable cause to doubt the use to which the requester will put the records sought, additional information may be sought from the requester before assigning the request to a specific category.</P> <P>(2) <E T="03">Direct costs</E> means those expenditures which VA actually incurs in searching for and duplicating (and in the case of commercial use requests, reviewing) documents to respond to a Freedom of Information Act (FOIA) request. Direct costs include, for example, the salary of the employee performing work, i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits, and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting of the facility in which the records are stored.</P> <P>(3) <E T="03">Duplication</E> means the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, microform, audiovisual materials or machine readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.</P> <P>(4) <E T="03">Educational institution</E> means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. To determine whether a request properly belongs in this category, the request must be evaluated to ensure that it is apparent from the nature of the request that it serves a scholarly research goal of the institution, rather than an individual goal of the requester or a commercial goal of the institution.</P> <P>(5) <E T="03">Non-commercial scientific institution</E> means an institution that is not operated on a <E T="03">commercial</E> basis (as that term is referenced under <E T="03">Commercial use request</E> of this paragraph) and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.</P> <P>(6) <E T="03">Representative of the news media</E> means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of <E T="03">news</E>) who make their products available for purchase or subscription by the general public. These examples are not intended to be all inclusive. As traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media will be included in this category. <E T="03">Freelance</E> journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the requester's past publication history can <PRTPAGE P="60"/>be considered also. In any case, freelancers who do not qualify for inclusion in the <E T="03">representative of the news media</E> category may seek a reduction or waiver of fees under paragraph (f) of this section.</P> <P>(7) <E T="03">Review</E> means the process of examining documents located in response to a <E T="03">commercial use request</E> (see definition of commercial use request in this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure in response to a <E T="03">commercial use request,</E> e.g., doing all that is necessary to excise them and otherwise prepare them for release. The term <E T="03">review</E> does not include time spent resolving general legal or policy issues regarding the application of exemptions.</P> <P>(8) <E T="03">Search</E> means all the time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. Searches may be done manually or by computer using existing programs. The most efficient and least expensive manner of searching for material will be used to minimize costs to VA and the requester. For example, line-by-line searches will not be conducted when duplicating an entire document is the least expensive and quicker method of complying with a request. The term <E T="03">search</E> does not cover the time spent to review documents to determine whether all or portions thereof can be withheld under one of the nine categories of exemptions identified in § 1.554 of this part.</P> <P>(b) <E T="03">Fees to be charged.</E> (1) Except as provided in paragraphs (c), (d), (f) and (g) of this section, the Department of Veterans Affairs will charge fees that recoup the full allowable direct costs for responding to each request from the public. Such fees will be charged in accordance with the schedule of fees in paragraph (e) of this section, and other requirements or restrictions in this regulation. The most efficient and least costly methods will be used to comply with requests for documents made under the FOIA.</P> <P>(2) If it is estimated that charges for duplication determined by using the fee schedule in § 1.555(e) of this part are likely to exceed $25, the requester will be notified of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such notice will offer the requester the opportunity to confer with Department personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(3) Each administration and staff office upon approval of the Secretary is authorized to contract with private sector services to locate, reproduce, and disseminate records in response to FOIA requests when that is the most efficient and least costly method. If a contractor is used, the ultimate cost to the requester can be no greater than it would if the administration, staff office, or field facility performed the task, itself. In no case may a administration, staff office, or field facility contract out responsibilities which the FOIA provides that they alone may discharge, such as determining the applicability of an exemption, or determining whether to waive or reduce fees.</P> <P>(4) When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs, in which the agency is required to set the level of fees for particular types of records, such as the National Technical Information Service or the Government Printing Office, the requester of such documents will be informed of the steps necessary to obtain records from those sources, rather than from VA.</P> <P>(c) <E T="03">Restrictions on assessing fees.</E> With the exception of commercial use requests no charges will be assessed for the first 100 pages of duplication and the first two hours of search time. Moreover, no fees are to be charged any requester, including commercial use requesters, if the cost of collecting the fee is equal to or greater than the fee itself. These provisions work together so that, except for commercial use requests, fees will not be assessed until the free search and duplication have been provided. For example, if a request takes two hours and ten minutes of search time and results in 105 reproduced pages of documents, fees can be charged for only 10 minutes of search <PRTPAGE P="61"/>time and for only five pages of reproduction. If this cost were equal to or less than the cost to VA of billing the requester and processing the fee collected, no charges would be assessed. (NOTE: The cost of collecting fees are VA's administrative costs of receiving and recording a requester's remittance, and processing the fee for deposit in the Treasury Department's special account. The cost is determined to be negligible. The per-transaction costs to the Treasury to handle such remittances is negligible and will not be considered in the Department's determination.)</P> <P>(1) For purposes of the restriction on assessing fees, the word <E T="03">pages</E> refers to one-sided paper copies of the standard sizes 8<FR>1/2</FR>″ × 11″ or 8<FR>1/2</FR>″ × 14″ or 11 ″ × 14″. Accordingly, requesters will not be entitled to 100 microfiche or 100 computer disks free. One microfiche containing the equivalent of 100 pages or 100 pages of computer printout might meet the terms of the restriction.</P> <P>(2) The term <E T="03">search time</E> in this context is based on manual searches. To calculate the <E T="03">computer search time</E> for the purpose of applying the two-hour search restriction, the hourly cost of operating the computer's central processing unit will be combined with the operator's hourly salary, plus 16 percent of the salary. When the cost of the search (including the operator time and the cost of the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, charges will begin to be assessed for a computer search.</P> <P>(d) <E T="03">Categories of requesters and fees to be charged each category.</E> There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutional requesters; requesters who are representatives of news media; and all other requesters. Specific levels of fees will be charged for each of these categories as follows:</P> <P>(1) <E T="03">Commercial use requesters.</E> When a request for documents for commercial use is received, the full direct costs of searching for, reviewing for release, and duplicating the records sought will be charged to the requester. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduced documents. Moreover, the commercial use requester will be charged the cost of searching for and reviewing records even if there is ultimately no disclosure of records. The requester must reasonably describe the records sought.</P> <P>(2) <E T="03">Educational and non-commercial scientific institution requesters.</E> These requesters will be charged only for the cost of reproduction, excluding charges for the first 100 pages. In order to be considered a member of this category, a requester must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use. If the request is from an educational institution, the requester must show that the records sought are in furtherance of scholarly research. If the request is from a non-commercial scientific institution, the requester has to show that the records are sought in furtherance of scientific research. Information necessary to support a claim of being categorized as an educational or non-commercial scientific institution requester will be provided by the requester, and the requester must reasonably describe the records sought.</P> <P>(3) <E T="03">Representatives of news media.</E> These requesters will be charged for the cost of reproduction, only, excluding charges for the first 100 pages. To be included in this category, a requester must fall within the definition of a representative of the news media specified in paragraph (a)(vi) of this section, and the request must not be made for commercial use. A request for records supporting the news dissemination function of the requester will not be considered to be a request that is for commercial use. Requesters must reasonably describe the records sought.</P> <P>(4) <E T="03">All other requesters.</E> Any requester that does not fit into any of the categories in this section will be charged fees which recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time will be furnished <PRTPAGE P="62"/>without charge. In addition, under certain circumstances specified in paragraph (f) of this section, fees will be waived or reduced at the discretion of field facility heads, their designee, or responsible Central Office officials. Requests from VA beneficiaries, applicants for VA benefits, or other individuals for records retrievable by their name or other personal identifier will initially be processed under 38 U.S.C. 5701 and 5 U.S.C. 552a and will be assessed fees in accordance with the applicable fee provisions of § 1.526(i) or § 1.577(f) of this part. To the extent that records are not disclosable under these provisions, the disclosure of such records will be evaluated under §§ 1.550 through 1.559 of this part, and fees will be assessed under paragraph (e) of this section. Requesters must reasonably describe the records sought.</P> <P>(e) <E T="03">Schedule of fees:</E> </P> <GPOTABLE CDEF="s150,xs90" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Activity</CHED> <CHED H="1">Fees</CHED> </BOXHD> <ROW> <ENT I="01">(1) Duplication of documents by any type of reproduction process to produce plain one-sided paper copies of a standard size (8<FR>1/2</FR>″ × 11″; 8<FR>1/2</FR>″ × 14″; 11″ × 14″)</ENT> <ENT>$0.15 per page.</ENT> </ROW> <ROW> <ENT I="01">(2) Duplication of non-paper records, such as microforms, audiovisual materials (motion pictures, slides, laser optical disks, video tapes, audiotapes, etc.) computer tapes and disks, diskettes for personal computers, and any other automated media output</ENT> <ENT>Actual direct cost to the Agency. (See paragraph (a)(2) of this section and, if costs are likely to exceed $25.00, paragraph (b)(2) of this section.</ENT> </ROW> <ROW> <ENT I="01">(3) Duplication of documents by any type of reproduction process not covered by paragraphs (e)(1) and (2) of this section to produce a copy in a form reasonably usable by the requester</ENT> <ENT>Actual direct cost to the Agency. (See paragraph (a)(2) of this section and, if costs are likely to exceed $25.00, paragraph (b)(2) of this section.</ENT> </ROW> <ROW> <ENT I="01">(4) Document search by manual (non-automated) methods</ENT> <ENT>Basic hourly salary rate of the employee(s) performing the search, plus 16 percent. (If costs are likely to exceed $25.00, see paragraph (g)(2) of this section.) </ENT> </ROW> <ROW EXPSTB="01"> <ENT I="11">(<E T="04">Note—</E> If a department, staff office or field station uses exclusively a single class of personnel, e.g., all administrative/clerical or all professional/executive, an average rate for the range of grades involved may be used). </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">(5) Document search using automated methods, such as by computer</ENT> <ENT>Actual direct cost to perform search. (See paragraph (c)(2) of this section, and, if costs are likely to exceed $25.00, see paragraph (g)(2) of this section.)</ENT> </ROW> <ROW> <ENT I="01">(6) Document review (use only for commercial use requesters)</ENT> <ENT>Basic hourly salary rate of employee(s) performing initial review to determine whether to release document(s) or portions of records, plus 16 percent. </ENT> </ROW> <ROW EXPSTB="01"> <ENT I="11">(<E T="04">Note.</E> Charge for document reviews covers only the time spent reviewing the document(s) at the initial administrative level to determine applicability of a specific FOIA exemption to a particular record or portion of a record. It does not cover any review incurred at the administrative appeal level once the initial exemptions are applied. However, records or portions of records withheld in full under an exemption which is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The cost for such a subsequent review may be properly assessed). </ENT> </ROW> <ROW EXPSTB="00"> <ENT I="01">(7) Other charges: Certifying that records are true copies; Sending records by special methods such as express mail</ENT> <ENT>Where applicable, assess under provisions of §§ 1.526(i) and (j) of this part, otherwise actual direct cost of service performed.</ENT> </ROW> </GPOTABLE> <P>(f) <E T="03">Waiving or reducing fees.</E> (1) Fees for records and services provided in response to a FOIA request will be waived or reduced when it is determined by responsible Central Office officials or field station heads or their designee that furnishing the document(s) is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.</P> <P>(2) The following factors will be considered in sequence in determining whether disclosure of information is in <PRTPAGE P="63"/>the public interest because it is likely to contribute significantly to the public understanding of the operations or activities of the government:</P> <P>(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government;</P> <P>(ii) The informative value of the information to be disclosed: Whether the disclosure is likely to contribute to an understanding of government operations or activities;</P> <P>(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to public understanding; and</P> <P>(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute significantly to public understanding of government operations or activities.</P> <P>(3) The following factors will be considered in sequence in determining whether disclosure of information is primarily in the commercial interest of the requester:</P> <P>(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so</P> <P>(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.</P> <P>(4) An appeal from an adverse fee waiver or reduction determination will be processed in the same manner as described in § 1.557 of this part.</P> <P>(g) <E T="03">Other administrative considerations to improve assessment and collection of fees—</E>(1) <E T="03">Charging interest—notice and rate.</E> The Department of Veterans Affairs may charge interest to those requesters who fail to timely pay fees assessed in accordance with these regulations. Determination to charge interest will be made by the responsible Central Office official or field facility head or designee. Interest will be assessed on the unpaid bill beginning on the 31st day following the day on which the original building was sent. Interest will be at the rate prescribed in section 3717 of title 31 U.S.C., and will accrue from the date of the billing. Accounting procedures ensure that a requester who has remitted the full amount within the time period is properly credited with the payment. The fact that the fee has been received by VA, even if not processed, will suffice to stay the accrual of interest.</P> <P>(2) <E T="03">Charges for unsuccessful search.</E> When it is determined by the responsible Central Office official or field facility head or designee, charges for searching may be assessed, even if records are not located to satisfy a request or if records located are determined to be exempt from disclosure. If it is determined that search charges are likely to exceed $25, the requester will be notified of the estimated amount of fees, unless the requester has indicated in advance a willingness to pay fees as high as those anticipated. Such notice will offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(3) <E T="03">Aggregating requests.</E> When the responsible Central Office official or field facility head or designee reasonably believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the responsible Central Office official, or field facility head or designee may aggregate (combine) any such requests and charge accordingly. One element to consider in determining whether a belief would be reasonable is the time period in which the requests occurred. For example, it is reasonable to presume that multiple requests within a 30-day time period that seek portion(s) of the same document(s) is an attempt to avoid payment of charges. For requests made over a longer period, however, such presumption becomes harder to sustain. In each case, there must be a solid basis for determining that aggregation is warranted. Caution will be exercised before aggregating requests from more than one requester. There must be a concrete basis on which to <PRTPAGE P="64"/>conclude that the requesters are acting in concert and are acting specifically to avoid payment. In no case will multiple requests on unrelated subjects from one requester be aggregated.</P> <P>(4) <E T="03">Advance payments.</E> The Department of Veterans Affairs may not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:</P> <P>(i) The allowable charges that a requester may be required to pay are likely to exceed $250. Then, the Department of Veterans Affairs should either notify the requester of the likely cost and obtain satisfactory assurance of full payment, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or</P> <P>(ii) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing). Then, the Department of Veterans Affairs may require the requester to pay the full amount owed, plus any applicable interest as provided in paragraph (g)(1) of this section, or to demonstrate that he or she has, in fact, paid the fee, and to make an advance payment of the estimated fee before the Department begins to process a new request or a pending request from that requester.</P> <P>(iii) If a requester is required to make advance payments, as described in this section, the time limits prescribed in § 1.553a of this part, for responding to initial requests and appeals from initial denials, will begin only after the Department has received the advance fee payments.</P> <P>(5) <E T="03">Debt collection.</E> In the event of non-payment of billed charges for disclosure of records, the procedures authorized by the Debt Collection Act of 1982 (Pub. L. 97-365) may be used. This may include disclosure to consumer reporting agencies and use of collection agencies.</P> <SECAUTH>(Authority: 5 U.S.C. 552(a)(4)(A))</SECAUTH> <CITA>[53 FR 10377, Mar. 31, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.556</SECTNO> <SUBJECT>Requests for other reasonably described records.</SUBJECT> <P>Each administration, staff office, and field facility head will designate an employee(s) who will be responsible for initial action on (granting or denying) requests to inspect or obtain information from or copies of records under their jurisdiction and within the purview of § 1.553. This responsibility includes maintaining a uniform listing of such requests. Data logged will consist of: Name and address of requester; date of receipt of request; brief description of request; action taken on request, granted or denied; citation of the specific section when request is denied; and date of reply to the requester. In the field a denial of any such request may be made only by the Director or the designated employee and in Central Office only by the administration or staff office head or designee. The letter notifying the requester of the denial will be signed by the official making the denial decision. Any legal question arising in a field station concerning the release of information will be referred to the appropriate Regional Counsel for disposition as contemplated by § 13.401*<FTREF/> of this chapter. In Central Office such legal questions will be referred to the General Counsel. Any administrative question will be referred through administrative channels to the appropriate administration or staff office head. All denials or proposed denials at the Central Office level will be coordinated with the Director, Information Service as well as the General Counsel.</P> <FTNT> <P>*<E T="04">Editorial Note:</E> At 42 FR 41410, Aug. 17, 1977, § 13.401 was removed.</P> </FTNT> <CITA>[40 FR 12658, Mar. 20, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.557</SECTNO> <SUBJECT>Administrative review.</SUBJECT> <P>(a) Upon denial of a request, the responsible Department of Veterans Affairs official or designated employee will inform the requester in writing of the denial, cite the specific exemption in § 1.554 upon which the denial is based, set forth the names and titles or positions of each person responsible for the denial of such request, and advise <PRTPAGE P="65"/>that the denial may be appealed to the General Counsel.</P> <P>(b) The final agency decision in such appeals will be made by the General Counsel or the Deputy General Counsel.</P> <CITA>[40 FR 12658, Mar. 20, 1975, as amended at 55 FR 21546, May 25, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1.558-1.559</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SUBJGRP> <HD SOURCE="HED">Safeguarding Personal Information in Department of Veterans Affairs Records</HD> </SUBJGRP> <NOTE> <HD SOURCE="HED">Note:</HD> <P>Sections 1.575 through 1.584 concern the safeguarding of individual privacy from the misuse of information from files, records, reports, and other papers and documents in Department of Veterans Affairs custody. As to the release of information from Department of Veterans Affairs claimant records see § 1.500 series. As to the release of information from Department of Veterans Affairs records other than claimant records see § 1.550 series. Section 1.575 series implement the provisions of Pub. L. 93-579, December 31, 1974, adding a section 552a to title 5 U.S.C. providing that individuals be granted access to records concerning them which are maintained by Federal agencies, and for other purposes.</P> </NOTE> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>40 FR 33944, Aug. 12, 1975, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.575</SECTNO> <SUBJECT>Social security numbers in veterans’ benefits matters.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, no one will be denied any right, benefit, or privilege provided by law because of refusal to disclose to the Department of Veterans Affairs a social security number.</P> <P>(b) VA shall require mandatory disclosure of a claimant's or beneficiary's social security number (including the social security number of a dependent of a claimant or beneficiary) on necessary forms as prescribed by the Secretary as a condition precedent to receipt or continuation of receipt of compensation or pension payable under the provisions of chapters 11, 13 and 15 of title 38, United States Code, provided, however, that a claimant shall not be required to furnish VA with a social security number for any person to whom a social security number has not been assigned. VA may also require mandatory disclosure of an applicant's social security number as a condition for receiving loan guaranty benefits and a social security number or other taxpayer identification number from existing direct and vendee loan borrowers and as a condition precedent to receipt of a VA-guaranteed loan, direct loan or vendee loan, under chapter 37 of title 38, United States Code. (Pub. L. 97-365, sec. 4)</P> <P>(c) A person requested by VA to disclose a social security number shall be told, as prescribed by § 1.578(c), whether disclosure is voluntary or mandatory. The person shall also be told that VA is requesting the social security number under the authority of title 38 U.S.C., or in the case of existing direct or vendee loan borrowers, under the authority of 26 U.S.C. 6109(a) in conjunction with sections 145 and 148 of Pub. L. 98-369, or in the case of loan applicants, under the authority of section 4 of Pub. L. 97-365. The person shall also be told that it will be used in the administration of veterans’ benefits in the identification of veterans or persons claiming or receiving VA benefits and their records, that it may be used in making reports to the Internal Revenue Service where required by law, and to determine whether a loan guaranty applicant has been identified as a delinquent taxpayer by the Internal Revenue Service, and that such taxpayers may have their loan applications rejected, and that it may be used to verify social security benefit entitlement (including amounts payable) with the Social Security Administration and, for other purposes where authorized by both title 38 U.S.C., and the Privacy Act of 1974, (Pub. L. 93-579), or, where required by another statute. (Pub. L. 97-365, sec. 4)</P> <SECAUTH>(Authority: 38 U.S.C. 5101)</SECAUTH> <CITA>[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986; 56 FR 25044, June 3, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.576</SECTNO> <SUBJECT>General policies, conditions of disclosure, accounting of certain disclosures, and definitions.</SUBJECT> <P>(a) The Department of Veterans Affairs will safeguard an individual against an invasion of personal privacy. Except as otherwise provided by law or regulation its officials and employees will:<PRTPAGE P="66"/> </P> <P>(1) Permit an individual to determine what records pertaining to him or her will be collected, maintained, used, or disseminated by the Department of Veterans Affairs.</P> <P>(2) Permit an individual to prevent records pertaining to him or her, obtained by the Department of Veterans Affairs for a particular purpose, from being used or made available for another purpose without his or her consent.</P> <P>(3) Permit an individual to gain access to information pertaining to him or her in Department of Veterans Affairs records, to have a copy made of all or any portion thereof, and to correct or amend such records.</P> <P>(4) Collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is correct and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information.</P> <P>(5) Permit exemptions from records requirements provided in 5 U.S.C. 552a only where an important public policy need for such exemption has been determined pursuant to specific statutory authority.</P> <P>(b) The Department of Veterans Affairs will not disclose any record contained in a system of records by any means of communication to any person or any other agency except by written request of or prior written consent of the individual to whom the record pertains unless such disclosure is:</P> <P>(1) To those officers and employees of the agency which maintains the record and who have a need for the record in the performance of their duties;</P> <P>(2) Required under 5 U.S.C. 552;</P> <P>(3) For a routine use of the record compatible with the purpose for which it was collected;</P> <P>(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to title 13 U.S.C.;</P> <P>(5) To a recipient who has provided the Department of Veterans Affairs with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;</P> <P>(6) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Administrator of General Services or designee to determine whether the record has such value;</P> <P>(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Department of Veterans Affairs specifying the particular portion desired and the law enforcement activity for which the record is sought;</P> <P>(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;</P> <P>(9) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;</P> <P>(10) To the Comptroller General, or any authorized representatives, in the course of the performance of the duties of the General Accounting Office; or</P> <P>(11) Pursuant to the order of a court of competent jurisdiction.</P> <P>(c) With respect to each system of records (i.e., a group of records from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual) under Department of Veterans Affairs control, the Department of Veterans Affairs will (except for disclosures made under paragraph (b)(1) or (2) of this section) keep an accurate accounting as follows:</P> <P>(1) For each disclosure of a record to any person or to another agency made under paragraph (b) of this section, maintain information consisting of the date, nature, and purpose of each disclosure, and the name and address of <PRTPAGE P="67"/>the person or agency to whom the disclosure is made;</P> <P>(2) Retain the accounting made under paragraph (c)(1) of this section for at least 5 years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;</P> <P>(3) Except for disclosures made under paragraph (b)(7) of this section, make the accounting under paragraph (c)(1) of this section available to the individual named in the record at his or her request; and</P> <P>(4) Inform any person or other agency about any correction or notation of dispute made by the agency in accordance with § 1.579 of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.</P> <P>(d) For the purposes of §§ 1.575 through 1.584, the parent of any minor, or the legal guardian of any individual who has been declared incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.</P> <P>(e) Section 552a(i), title 5 U.S.C., provides that:</P> <P>(1) Any officer or employee of the Department of Veterans Affairs, who by virtue of his or her employment or official position, has possession of, or access to, Department of Veterans Affairs records which contain individually identifiable information the disclosure of which is prohibited by 5 U.S.C. 552a or by § 1.575 series established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.</P> <P>(2) Any officer or employee of the Department of Veterans Affairs who willfully maintains a system of records without meeting the notice requirements of 5 U.S.C. 552a(e)(4) (see § 1.578(d)) shall be guilty of a misdemeanor and fined not more than $5,000.</P> <P>(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from the Department of Veterans Affairs under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.</P> <P>(f) For purposes of § 1.575 series the following definitions apply:</P> <P>(1) The term <E T="03">agency</E> includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President), or any independent regulatory agency.</P> <P>(2) The term <E T="03">individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence.</P> <P>(3) The term <E T="03">maintain</E> includes maintain, collect, use, or disseminate.</P> <P>(4) The term <E T="03">record</E> means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his or her education, financial transactions, medical history, and criminal or employment history and that contains his or her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.</P> <P>(5) The term <E T="03">system of records</E> means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.</P> <P>(6) The term <E T="03">statistical record</E> means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual except as provided by section 8 of title 13 U.S.C.</P> <P>(7) The term <E T="03">routine use</E> means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.</P> <P>(g) When the Department of Veterans Affairs provides by a contract for the operation by or on behalf of the Department of Veterans Affairs of a system of records to accomplish a Department of Veterans Affairs function, the Department of Veterans Affairs will, consistent with its authority, cause <PRTPAGE P="68"/>the requirements of 5 U.S.C. 552a (as required by subsection (m)) and those of the § 1.575 series to be applied to such system. For the purposes of 5 U.S.C. 552a(i) and § 1.576(e) any such contractor and any employee of such contractor, if such contract is agreed to on or after September 27, 1975, will be considered to be an employee of the Department of Veterans Affairs.</P> <P>(h) The Department of Veterans Affairs will, for the purposes of 5 U.S.C. 552a, consider that it maintains any agency record which it deposits with the Administrator of General Services for storage, processing, and servicing in accordance with section 3103 of title 44 U.S.C. Any such record will be considered subject to the provisions of § 1.575 series implementing 5 U.S.C. 552a and any other applicable Department of Veterans Affairs regulations. The Administrator of General Services is not authorized to disclose such a record except to the Department of Veterans Affairs, or under regulations established by the Department of Veterans Affairs which are not inconsistent with 5 U.S.C. 552a.</P> <P>(i) The Department of Veterans Affairs will, for the purposes of 5 U.S.C. 552a, consider that a record is maintained by the National Archives of the United States if it pertains to an identifiable individual and was transferred to the National Archives prior to September 27, 1975, as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government. Such records are not subject to the provisions of 5 U.S.C. 552a except that a statement generally describing such records (modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of 5 U.S.C. 552a) will be published in the <E T="04">Federal Register.</E> </P> <P>(j) The Department of Veterans Affairs will also, for the purposes of 5 U.S.C. 552a, consider that a record is maintained by the National Archives of the United States if it pertains to an identifiable individual and is transferred to the National Archives on or after September 27, 1975, as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government. Such records are exempt from the requirements of 5 U.S.C. 552a except subsections (e)(4) (A) through (G) and (e)(9) thereof.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975; 47 FR 16323, Apr. 16, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.577</SECTNO> <SUBJECT>Access to records.</SUBJECT> <P>(a) Except as otherwise provided by law or regulation any individual upon request may gain access to his or her record or to any information pertaining to him or her which is contained in any system of records maintained by the Department of Veterans Affairs. The individual will be permitted, and upon his or her request, a person of his or her own choosing permitted to accompany him or her, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him or her. The Department of Veterans Affairs will require, however, a written statement from the individual authorizing discussion of that individual's record in the accompanying person's presence.</P> <P>(b) Any individual will be notified, upon request, if any Department of Veterans Affairs system of records named contains a record pertaining to him or her. Such request must be in writing, over the signature of the requester. The request must contain a reasonable description of the Department of Veterans Affairs system or systems of records involved, as described at least annually by notice published in the <E T="04">Federal Register</E> describing the existence and character of the Department of Veterans Affairs system or systems of records pursuant to § 1.578(d). The request should be made to the office concerned (having jurisdiction over the system or systems of records involved) or, if not known, to the Director or Department of Veterans Affairs Officer in the nearest Department of Veterans Affairs regional office, or to the Department of Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC 20420. Personal contact should normally be made during the regular duty hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday <PRTPAGE P="69"/>through Friday for Department of Veterans Affairs Central Office and most field facilities. Identification of the individual requesting the information will be required and will consist of the requester's name, signature, address, and claim, insurance or other identifying file number, if any, as a minimum. Additional identifying data or documents may be required in specified categories as determined by operating requirements and established and publicized by the promulgation of Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))</P> <P>(c) The department or staff office having jurisdiction over the records involved will establish appropriate disclosure procedures and will notify the individual requesting disclosure of his or her record or information pertaining to him or her of the time, place and conditions under which the Department of Veterans Affairs will comply to the extent permitted by law and Department of Veterans Affairs regulation. (5 U.S.C. 552a(f)(2))</P> <P>(d) Access to sensitive material in rec-ords, including medical and psychological records, is subject to the following special procedures. When an individual requests access to his or her rec-ords, the Department of Veterans Affairs official responsible for administering those records will review them and identify the presence of any sensitive records. Sensitive records are those that contain information which may have a serious adverse effect on the individual's mental or physical health if they are disclosed to him or her. If, on review of the records, the Department of Veterans Affairs official concludes that there are sensitive records involved, the official will refer the records to a Department of Veterans Affairs physician, other than a rating board physician, for further review. If the physician who reviews the records believes that disclosure of the information directly to the individual could have an adverse effect on the physical or mental health of the individual, the responsible Department of Veterans Affairs official will then advise the requesting individual: (1) That the Department of Veterans Affairs will disclose the sensitive records to a physician or other professional person selected by the requesting individual for such redisclosure as the professional person may believe is indicated, and (2) in indicated cases, that the Department of Veterans Affairs will arrange for the individual to report to a Department of Veterans Affairs facility for a discussion of his or her records with a designated Department of Veterans Affairs physician and for an explanation of what is included in the records. Following such discussion, the records should be disclosed to the individual; however, in those extraordinary cases where a careful and conscientious explanation of the information considered harmful in the record has been made by a Department of Veterans Affairs physician and where it is still the physician's professional medical opinion that physical access to the information could be physically or mentally harmful to the patient, physical access may be denied. Such a denial situation should be an unusual, very infrequent occurrence. When denial of a request for direct physical access is made, the responsible Department of Veterans Affairs official will: (1) Promptly advise the individual making the request of the denial; (2) state the reasons for the denial of the request (e.g., 5 U.S.C. 552a(f)(3), 38 U.S.C. 5701(b)(1)); and (3) advise the requester that the denial may be appealed to the General Counsel and of the procedure for such an appeal.(Authority: 5 U.S.C. 552a(f)(3))</P> <P>(e) Nothing in 5 U.S.C. 552a, however, allows an individual access to any information compiled in reasonable anticipation of civil action or proceeding. (5 U.S.C. 552a(d)(5))</P> <P>(f) Fees to be charged, if any, to any individual for making copies of his or her record shall not include the cost of any search for and review of the record, and will be as follows:</P> <GPOTABLE CDEF="s150,xs90" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">Activity</CHED> <CHED H="1">Fees</CHED> </BOXHD> <ROW> <ENT I="01">(1) Duplication of documents by any type of reproduction process to produce plain one-sided paper copies of a standard size (8<FR>1/2</FR>″ × 11″; 8<FR>1/2</FR>″ × 14″; 11″×14″)</ENT> <ENT>$0.15 per page after first 100 one-sided pages.</ENT> </ROW> <ROW> <PRTPAGE P="70"/> <ENT I="01">(2) Duplication of non-paper records, such as microforms, audiovisual materials (motion pictures, slides, laser optical disks, video tapes, audio tapes, etc.), computer tapes and disks, diskettes for personal computers, and any other automated media output</ENT> <ENT>Actual direct cost to the Agency as defined in § 1.555(a)(2) of this part to the extent that it pertains to the cost of duplication.</ENT> </ROW> <ROW> <ENT I="01">(3) Duplication of document by any type of reproduction process not covered by paragraphs (f)(1) or (2) of this section to produce a copy in a form reasonably usable by the requester</ENT> <ENT>Actual direct cost to the Agency as defined in § 1.555(a)(2) of this part to the extent that it pertains to the cost of duplication.</ENT> </ROW> </GPOTABLE> <NOTE> <HD SOURCE="HED">Note.</HD> <P>Fees for any activities other than duplication by any type of reproducing process will be assessed under the provisions of § 1.526(i) or (j) of this part of any other applicable law.)</P> </NOTE> <P>(g) When VA benefit records, which are retrievable by name or individual identifier of a VA beneficiary or applicant for VA benefits, are requested by the individual to whom the record pertains, the duplication fee for one complete set of such records will be waived.</P> <SECAUTH>(Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)</SECAUTH> <CITA>[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982; 53 FR 10380, Mar. 31, 1988; 55 FR 21546, May 25, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.578</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.579</SECTNO> <SUBJECT>Amendment of records.</SUBJECT> <P>(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:</P> <P>(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or</P> <P>(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official. </P> <PARAUTH>(Authority: 5 U.S.C. 552a(d)(2))</PARAUTH> <P>(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.</P> <P>(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.</P> <P>(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of <PRTPAGE P="71"/>each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office. </P> <PARAUTH>(Authority: 5 U.S.C. 552a(f)(4))</PARAUTH> <P>(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))</P> <P>(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)</P> <CITA>[47 FR 16324, Apr. 16, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.580</SECTNO> <SUBJECT>Administrative review.</SUBJECT> <P>(a) Upon denial or a request under 38 CFR 1.577 or 1.579, the responsible Department of Veterans Affairs official or designated employee will inform the requester in writing of the denial, cite the reason or reasons and the Department of Veterans Affairs regulations upon which the denial is based, and advise that the denial may be appealed to the General Counsel.</P> <P>(b) The final agency decision in such appeals will be made by the General counsel or the Deputy General Counsel.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982; 55 FR 21546, May 25, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.581</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.582</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) Certain systems of records maintained by the Department of Veterans Affairs are exempted from provisions of the Privacy Act in accordance with exemptions (j) and (k) of 5 U.S.C. 552a.</P> <P>(b) <E T="03">Exemption of Inspector General Systems of Records.</E> The Department of Veterans Affairs provides limited access to Inspector General Systems of Records as indicated.</P> <P>(1) The following systems of records are exempted pursuant to the provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d), (e)(1), (2) and (3), (e)(4) (G), (H) and (I), (e)(5) and (8), (f) and (g) of 5 U.S.C. 552a; in addition, the following systems of records are exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5 U.S.C. 552a:</P> <P>(i) Investigation Reports of Persons Allegedly Involved in Irregularities Concerning VA and Federal Laws, Regulations, Programs, etc.—VA (11 VA51); and</P> <P>(ii) Inspector General Complaint Center Records—VA (66VA53).</P> <P>(2) These exemptions apply to the extent that information in those systems is subject to exemptions pursuant to 5 U.S.C. 552a (j)(2) and (k)(2).</P> <P>(3) For the reasons set forth, the systems of records listed under paragraph (b)(1) of this section are exempted under sections 552a (j)(2) and (k)(2) from the following provisions of 5 U.S.C. 552a:</P> <P>(i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must give an individual named in a record an accounting which reflects the disclosure <PRTPAGE P="72"/>of the record to other persons or agencies. This accounting must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects to the existence of the investigation and identify that such persons are subject of that investigation. Since release of such information to subjects would provide them with significant information concerning the nature of the investigation, it could result in the altering or destruction of derivative evidence which is obtained from third parties, improper influencing of witnesses, and other activities that could impede or compromise the investigation.</P> <P>(ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; the agency procedures relating to access to records and the amendment of information contained in such records; and the civil remedies available to the individual in the event of adverse determinations by an agency concerning access to or amendment of information contained in record systems. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual or to grant access to an investigative file could interfere with investigative and enforcement proceedings, threaten the safety of individuals who have cooperated with authorities, constitute an unwarranted invasion of personal privacy of others, disclose the identity of confidential sources, reveal confidential information supplied by these sources, and disclose investigative techniques and procedures.</P> <P>(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This could compromise the ability to conduct investigations and to identify, detect and apprehend violators. Even though the agency has claimed an exemption from this particular requirement, it still plans to generally identify the categories of records and the sources for these records in this system. However, for the reasons stated in paragraph (b)(3)(ii) of this section, this exemption is still being cited in the event an individual wants to know a specific source of information.</P> <P>(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive order. These systems of records are exempt from the foregoing provisions because:</P> <P>(A) It is not possible to detect the relevance or necessity of specific information in the early stages of a criminal or other investigation.</P> <P>(B) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established.</P> <P>(C) In any investigation the Inspector General may obtain information concerning the violations of laws other than those within the scope of his/her jurisdiction. In the interest of effective law enforcement, the Inspector General should retain this information as it may aid in establishing patterns of criminal activity and provide leads for those law enforcement agencies charged with enforcing other segments of civil or criminal law.</P> <P>(v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. The application of this provision would impair investigations of illegal acts, violations of the rules of conduct, merit system and any other misconduct for the following reasons:<PRTPAGE P="73"/> </P> <P>(A) In order to successfully verify a complaint, most information about a complainant or an individual under investigation must be obtained from third parties such as witnesses and informers. It is not feasible to rely upon the subject of the investigation as a source for information regarding his/her activities because of the subject's rights against self-incrimination and because of the inherent unreliability of the suspect's statements. Similarly, it is not always feasible to rely upon the complainant as a source of information regarding his/her involvement in an investigation.</P> <P>(B) The subject of an investigation will be alerted to the existence of an investigation if an attempt is made to obtain information from the subject. This would afford the individual the opportunity to conceal any criminal activities to avoid apprehension.</P> <P>(vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the subject of an investigation who is asked to supply information of:</P> <P>(A) The authority under which the information is sought and whether disclosure of the information is mandatory or voluntary;</P> <P>(B) The purposes for which the information is intended to be used;</P> <P>(C) The routine uses which may be made of the information; and</P> <P>(D) The effects on the subject, if any, of not providing the requested information. The reasons for exempting this system of records from the foregoing provision are as follows:</P> <P>(<E T="03">1</E>) The disclosure to the subject of the purposes of the investigation as stated in paragraph (b)(3)(vi)(B) of this paragraph would provide the subject with substantial information relating to the nature of the investigation and could impede or compromise the investigation.</P> <P>(<E T="03">2</E>) If the complainant or the subject were informed of the information required by this provision, it could seriously interfere with undercover activities requiring disclosure of the authority under which the information is being requested. This could conceivably jeopardize undercover agents’ identities and impair their safety, as well as impair the successful conclusion of the investigation.</P> <P>(<E T="03">3</E>) Individuals may be contacted during preliminary information gathering in investigations before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision would hinder or adversely affect any present or subsequent investigations.</P> <P>(vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making any determination about an individual. Since the law defines <E T="03">maintain</E> to include the collection of information, complying with this provision would prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment of its collection. In gathering information during the course of an investigation it is not always possible to determine this prior to collection of the information. Facts are first gathered and then placed into a logical order which objectively proves or disproves criminal behavior on the part of the suspect. Material which may seem unrelated, irrelevant, incomplete, untimely, etc., may take on added meaning as an investigation progresses. The restrictions in this provision could interfere with the preparation of a complete investigative report.</P> <P>(viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record. The notice requirement of this provision could prematurely reveal an ongoing criminal investigation to the subject of the investigation.</P> <P>(c) <E T="03">Exemption of Loan Guaranty Service, Veterans Benefits Administration, Systems of Records.</E> The Department of Veterans Affairs provides limited access to Loan Guaranty Service, Veterans Benefits Administration, systems of records as indicated:</P> <P>(1) The following systems of records are exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1) and (e)(4) (G), (H) and (I) and (f):<PRTPAGE P="74"/> </P> <P>(i) Loan Guaranty Fee Personnel and Program Participant Records—VA (17VA26); and</P> <P>(ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant Records and Paraplegic Grant Application Records—VA (55VA26).</P> <P>(2) These exemptions apply to the extent that information in these systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).</P> <P>(3) For the reasons set forth, the systems of records listed under paragraph (c)(1) of this section are exempted under 5 U.S.C. 552a(k)(2) from the following provisions of 5 U.S.C. 552a:</P> <P>(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request. These accountings must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects of an investigation to the existence of the investigation and that such persons are subjects of that investigation. Since release of such information to subjects of an investigation would provide the subjects with significant information concerning the nature of the investigation, it could result in the altering or destruction of documentary evidence, improper influencing of witnesses and other activities that could impede or compromise the investigation.</P> <P>(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and the agency procedures relating to access to records and the contest of information contained in such records. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual or to grant access to an investigative file could interfere with investigative and enforcement proceedings; constitute an unwarranted invasion of the personal privacy of others; disclose the identity of confidential sources and reveal confidential information supplied by these sources and disclose investigative techniques and procedures.</P> <P>(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This would compromise the ability to conduct investigations. Even though the agency has claimed an exemption from this particular requirement, it still plans to generally identify the categories of records and the sources for these records in this system. However, for the reasons stated above, this exemption is still being cited in the event an individual wanted to know a specific source of information.</P> <P>(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive order. This system of records is exempt from the foregoing provision because:</P> <P>(A) It is not possible to detect relevance or necessity of specific information in the early stages of an investigation.</P> <P>(B) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established.</P> <P>(C) In interviewing persons or obtaining other forms of evidence during an investigation, information may be supplied to the investigator which relates to matters incidental to the main purpose of the investigation but which is appropriate in a thorough investigation. Oftentimes, such information cannot readily be segregated.</P> <P>(4) The following system of records is exempt pursuant to the provisions of 5 U.S.C. 552a(k)(5) from subsections (c)(3), (d), (e)(1), (e)(4) (G), (H) and (I) and (f): Loan Guaranty Fee Personnel <PRTPAGE P="75"/>and Program Participant Records—VA (17 VA 26).</P> <P>(5) This exemption applies to the extent that information in this system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).</P> <P>(6) For the reasons set forth, the system of records listed in paragraph (c)(4) of this section is exempt under 5 U.S.C. 552a(k)(5) from the following provisions of 5 U.S.C. 552a:</P> <P>(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request. These accountings must state the date, nature and purpose of each disclosure of the record and the name and address of the recipient. The application of this provision would alert subjects of background suitability investigations to the existence of the investigation and reveal that such persons are subjects of that investigation. Since release of such information to subjects of an investigation would provide the subjects with significant information concerning the nature of the investigation, it could result in revealing the identity of a confidential source.</P> <P>(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an individual's right to be notified of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; and the agency procedures relating to access to records and the contest of information contained in such records. This system is exempt from the foregoing provisions for the following reasons: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such an individual or to grant access to an investigative file would disclose the identity of confidential sources and reveal confidential information supplied by these sources.</P> <P>(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the categories of sources of records in each system of records. The application of this provision could disclose sufficient information to disclose the identity of a confidential source and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This would compromise the ability to conduct background suitability investigations.</P> <P>(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its records only such information about an individual that is relevant and necessary to accomplish a purpose of the agency required by statute or Executive order. This system of records is exempt from the foregoing provision because:</P> <P>(A) It is not possible to detect relevance and necessity of specific information from a confidential source in the early stages of an investigation.</P> <P>(B) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when collected may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established regarding suitability for VA approval as a fee appraiser or compliance inspector.</P> <P>(C) In interviewing persons or obtaining other forms of evidence during an investigation for suitability for VA approval, information may be supplied to the investigator which relates to matters incidental to the main purpose of the investigation but which is appropriate in a thorough investigation. Oftentimes, such information cannot readily be segregated and disclosure might jeopardize the identity of a confidential source.</P> <SECAUTH>(Authority: 5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)</SECAUTH> <CITA>[48 FR 29847, June 29, 1983]</CITA> <EFFDNOTP> <HD SOURCE="HED">Effective Date Note:</HD> <P>At 68 FR 35298, June 13, 2003, § 1.582 was amended by adding paragraph (d), effective August 12, 2003. For the convenience of the user, the added text is set forth below:</P> <REVTXT> <SECTION> <SECTNO>§ 1.582</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <STARS/> <P>(d) <E T="03">Exemption of Police and Security Records</E>. VA provides limited access to one Security and Law Enforcement System of Records, Police and Security Records—VA (103VA07B).</P> <P>(1) The investigations records and reports contained in this System of Records are exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy Act of 1974] from Privacy Act subsections (c)(3) and (c)(4); (d); (e)(1) through <PRTPAGE P="76"/>(e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), and (e)(8); (f); and (g); in addition, they are exempted [pursuant to 5 U.S.C. 552a(k)(2) of the Privacy Act of 1974] from Privacy Act subsections (c)(3); (d); (e)(1), (e)(4)(G) through (e)(4)(I); and (f).</P> <P>(2) These records contained in the Police and Security Records—VA (103VA076B) are exempted for the following reasons:</P> <P>(i) The application of Privacy Act subsection (c)(3) would alert subjects to the existence of the investigation and reveal that they are subjects of that investigation. Providing subjects with information concerning the nature of the investigation could result in alteration or destruction of evidence which is obtained from third parties, improper influencing of witnesses, and other activities that could impede or compromise the investigation.</P> <P>(ii) The application of Privacy Act subsections (c)(4); (d); (e)(4)(G) and (e)(4)(H); (f); and (g) could interfere with investigative and enforcement proceedings, threaten the safety of individuals who have cooperated with authorities, constitute an unwarranted invasion of personal privacy of others, disclose the identity of confidential sources, reveal confidential information supplied by these sources, and disclose investigative techniques and procedures.</P> <P>(iii) The application of Privacy Act subsection (e)(4)(I) could disclose investigative techniques and procedures and cause sources to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality. This could compromise the ability to conduct investigations and to identify, detect and apprehend violators. Even though the agency has claimed an exemption from this particular requirement, it still plans to generally identify the categories of records and the sources of these records in this system. However, for the reason stated in paragraph (d)(2)(ii) of this section, this exemption is still being cited in the event an individual wants to know a specific source of information.</P> <P>(iv) These records contained in the Police and Security Records—VA (103VA076B) are exempt from Privacy Act subsection (e)(1) because it is not possible to detect the relevance or necessity of specific information in the early stages of a criminal or other investigation. Relevance and necessity are questions of judgment and timing. What appears relevant and necessary may ultimately be determined to be unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established. In any investigation, the Office of Security and Law Enforcement may obtain information concerning violations of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, the Office of Security and Law Enforcement should retain this information as it may aid in establishing patterns of criminal activity and provide leads for those law enforcement agencies charged with enforcing other segments of civil or criminal law.</P> <P>(v) The application of Privacy Act subsection (e)(2) would impair investigations of illegal acts, violations of the rules of conduct, merit system and any other misconduct for the following reasons:</P> <P>(A) In order to successfully verify a complaint, most information about a complainant or an individual under investigation must be obtained from third parties such as witnesses and informers. It is not feasible to rely upon the subject of the investigation as a source for information regarding his/her activities because of the subject's rights against self-incrimination and because of the inherent unreliability of the suspect's statements. Similarly, it is not always feasible to rely upon the complainant as a source of information regarding his/her involvement in an investigation.</P> <P>(B) The subject of an investigation will be alerted to the existence of an investigation if an attempt is made to obtain information from the subject. This would afford the individual the opportunity to conceal any criminal activities to avoid apprehension.</P> <P>(vi) The reasons for exempting these records in the Police and Security Records—VA (103VA07B) from Privacy Act subsection (e)(3) are as follows:</P> <P>(A) The disclosure to the subject of the purposes of the investigation would provide the subject with substantial information relating to the nature of the investigation and could impede or compromise the investigation.</P> <P>(B) Informing the complainant or the subject of the information required by this provision could seriously interfere with undercover activities, jeopardize the identities of undercover agents and impair their safety, and impair the successful conclusion of the investigation.</P> <P>(C) Individuals may be contacted during preliminary information gathering in investigations before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision would hinder or adversely affect any present or subsequent investigations.</P> <P>(vii) Since the Privacy Act defines “maintain” to include the collection of information, complying with subsection (e)(5) would prevent the collection of any data not shown to be accurate, relevant, timely, and complete at the moment of its collection. In gathering information during the course of an investigation, it is not always possible to make this determination prior to collecting the information. Facts are first gathered and <PRTPAGE P="77"/>then placed into a logical order which objectively proves or disproves criminal behavior on the part of the suspect. Material that may seem unrelated, irrelevant, incomplete, untimely, etc., may take on added meaning as an investigation progresses. The restrictions in this provision could interfere with the preparation of a complete investigative report.</P> <P>(viii) The notice requirement of Privacy Act subsection (e)(8) could prematurely reveal an ongoing criminal investigation to the subject of the investigation.</P> </SECTION> <SECTION> <SECTNO>§§ 1.583-1.584</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SUBJGRP> <HD SOURCE="HED">National Cemeteries</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.601 to 1.633 issued under 38 U.S.C. 501, 2306, chapter 24.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>43 FR 26571, June 21, 1978, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.600</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) [Reserved]</P> <P>(b) <E T="03">Definitions.</E> For purposes of §§ 1.617 and 1.618:</P> <P> <E T="03">Appropriate State official</E> means a State attorney general or other official with statewide responsibility for law enforcement or penal functions.</P> <P> <E T="03">Clear and convincing evidence</E> means that degree of proof which produces in the mind of the fact-finder a firm belief regarding the question at issue.</P> <P> <E T="03">Convicted</E> means a finding of guilt by a judgment or verdict or based on a plea of guilty, by a Federal or State criminal court.</P> <P> <E T="03">Federal capital crime</E> means an offense under Federal law for which the death penalty or life imprisonment may be imposed.</P> <P> <E T="03">Interment</E> means the burial of casketed remains or the placement or scattering of cremated remains.</P> <P> <E T="03">Life imprisonment</E> means a sentence of a Federal or State criminal court directing confinement in a penal institution for life.</P> <P> <E T="03">Memorialization</E> means any action taken to honor the memory of a deceased individual.</P> <P> <E T="03">Personal representative</E> means a family member or other individual who has identified himself or herself to the National Cemetery Administration cemetery director as the person responsible for making decisions concerning the interment of the remains of or memorialization of a deceased individual.</P> <P> <E T="03">State capital crime</E> means, under State law, the willful, deliberate, or premeditated unlawful killing of another human being for which the death penalty or life imprisonment without parole may be imposed.</P> <SECAUTH>(Authority: 38 U.S.C. 2408, 2411)</SECAUTH> <CITA>[67 FR 62643, Oct. 8, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.601</SECTNO> <SUBJECT>Advisory Committee on Cemeteries and Memorials.</SUBJECT> <P>Responsibilities in connection with Committee authorized by 38 U.S.C. chapter 24 are as follows:</P> <P>(a) The Under Secretary for Memorial Affairs will schedule the frequency of meetings, make presentations before the Committee, participate when requested by the Committee, evaluate Committee reports and recommendations and make recommendations to the Secretary based on Committee actions.</P> <P>(b) The Committee will evaluate and study cemeterial, memorial and burial benefits proposals or problems submitted by the Secretary or Under Secretary for Memorial Affairs, and make recommendations as to course of action or solution. Reports and recommendations will be submitted to the Secretary for transmission to Congress.</P> <CITA>[43 FR 26571, June 21, 1978, as amended at 61 FR 27281, May 31, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.602</SECTNO> <SUBJECT>Names for national cemetery activities.</SUBJECT> <P>(a) <E T="03">Responsibility.</E> The Secretary is responsible for naming national cemeteries. The Under Secretary for Memorial Affairs, is responsible for naming activities and features therein, such as drives, walks, or special structures.</P> <P>(b) <E T="03">Basis for names.</E> The names of national cemetery activities may be based on physical and area characteristics, the nearest important city (town), or a historical characteristic related to the area. Newly constructed interior thoroughfares for vehicular traffic in national cemetery activities will be known as <E T="03">drives.</E> To facilitate location of graves by visitors, drives will be named after cities, counties or States or after historically notable persons, places or events.</P> </SECTION> <SECTION> <PRTPAGE P="78"/> <SECTNO>§ 1.603</SECTNO> <SUBJECT>Gifts and donations.</SUBJECT> <P>(a) Gifts and donations will be accepted only after it has been determined that the donor has a clear understanding that title thereto passes to, and is vested in, the United States, and that the donor relinquishes all control over the future use or disposition of the gift or donation, with the following exceptions:</P> <P>(1) Carillons will be accepted with the condition that the donor will provide the maintenance and the operator or the mechanical means of operation. The time of operation and the maintenance will be coordinated with the superintendent of the national cemetery.</P> <P>(2) Articles donated for a specific purpose and which are usable only for that purpose may be returned to the donor if the purpose for which the articles were donated cannot be accomplished.</P> <P>(3) If the donor directs that the gift is donated for a particular use, those directions will be carried out insofar as they are proper and practicable and not in violation of Department of Veterans Affairs policy.</P> <P>(4) When considered appropriate and not in conflict with the purpose of the national cemetery, the donor may be recognized by a suitable inscription on those gifts. In no case will the inscription give the impression that the gift is owned by, or that its future use is controlled by, the donor. Any tablet or plaque, containing an inscription will be of such size and design as will harmonize with the general nature and design of the gift.</P> <P>(b) Officials and employees of the Department of Veterans Affairs will not solicit contributions from the public nor will they authorize the use of their names, the name of the Secretary, or the name of the Department of Veterans Affairs by an individual or organization in any campaign or drive for money or articles for the purpose of making a donation to the Department of Veterans Affairs. This restriction does not preclude discussion with the individual offering the gift relative to the appropriateness of the gift offered.</P> <CITA>[43 FR 26571, June 21, 1978, as amended at 61 FR 27282, May 31, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1.604-1.616</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.617</SECTNO> <SUBJECT>Prohibition of interment or memorialization of persons who have been convicted of Federal or State capital crimes.</SUBJECT> <P>(a) <E T="03">Prohibition.</E> The interment in a national cemetery under the control of the National Cemetery Administration of the remains, or the memorialization, of any of the following persons is prohibited:</P> <P>(1) Any person identified to the Secretary of Veterans Affairs by the United States Attorney General, prior to approval of interment or memorialization, as an individual who has been convicted of a Federal capital crime and sentenced to death or life imprisonment as a result of such crime.</P> <P>(2) Any person identified to the Secretary of Veterans Affairs by an appropriate State official, prior to approval of interment or memorialization, as an individual who has been convicted of a State capital crime and sentenced to death or life imprisonment without parole as a result of such crime.</P> <P>(3) Any person found under procedures specified in § 1.618 to have committed a Federal or State capital crime but have avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.</P> <P>(b) <E T="03">Notice.</E> The prohibition referred to in paragraph (a)(3) of this section is not contingent on receipt by the Secretary of Veterans Affairs or any other VA official of notice from any Federal or State official.</P> <P>(c) <E T="03">Receipt of notification.</E> The Under Secretary for Memorial Affairs is delegated authority to receive from the United States Attorney General and appropriate State officials on behalf of the Secretary of Veterans Affairs the notification of conviction of capital crimes referred to in paragraphs (a)(1) and (2) of this section.</P> <P>(d) <E T="03">Decision where notification previously received.</E> Upon receipt of a request for interment or memorialization, where the Secretary of Veterans Affairs has received the notification referred to in paragraph (a)(1) or (2) of this section with regard to the deceased, the cemetery director will <PRTPAGE P="79"/>make a decision on the request for interment or memorialization pursuant to 38 U.S.C. 2411.</P> <P>(e) <E T="03">Inquiry.</E> (1) Upon receipt of a request for interment or memorialization, where the Secretary of Veterans Affairs has not received the notification referred to in paragraph (a)(1) or (a)(2) of this section with regard to the deceased, but the cemetery director has reason to believe that the deceased may have been convicted of a Federal or State capital crime, the cemetery director will initiate an inquiry to either:</P> <P>(i) The United States Attorney General, in the case of a Federal capital crime, requesting notification of whether the deceased has been convicted of a Federal capital crime for which the deceased was sentenced to death or life imprisonment; or</P> <P>(ii) An appropriate State official, in the case of a State capital crime, requesting notification of whether the deceased has been convicted of a State capital crime for which the deceased was sentenced to death or life imprisonment without parole.</P> <P>(2) The cemetery director will defer decision on whether to approve interment or memorialization until after a response is received from the Attorney General or appropriate State official.</P> <P>(f) <E T="03">Decision after inquiry.</E> Where an inquiry has been initiated under paragraph (e) of this section, the cemetery director will make a decision on the request for interment or memorialization pursuant to 38 U.S.C. 2411 upon receipt of the notification requested under that paragraph, unless the cemetery director initiates an inquiry pursuant to § 1.618(a).</P> <P>(g) <E T="03">Notice of decision.</E> Written notice of a decision under paragraph (d) or (f) of this section will be provided by the cemetery director to the personal representative of the deceased, along with written notice of appellate rights in accordance with § 19.25 of this title. This notice of appellate rights will include notice of the opportunity to file a notice of disagreement with the decision of the cemetery director. Action following receipt of a notice of disagreement with a denial of eligibility for interment or memorialization under this section will be in accordance with §§ 19.26 through 19.38 of this title.</P> <SECAUTH>(Authority: 38 U.S.C. 512, 2411, 7105)</SECAUTH> <CITA>[67 FR 62644, Oct. 8, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.618</SECTNO> <SUBJECT>Findings concerning commission of a capital crime where a person has not been convicted due to death or flight to avoid prosecution.</SUBJECT> <P>(a) <E T="03">Inquiry.</E> With respect to a request for interment or memorialization, if a cemetery director has reason to believe that a deceased individual who is otherwise eligible for interment or memorialization may have committed a Federal or State capital crime, but avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution, the cemetery director, with the assistance of the VA regional counsel, as necessary, will initiate an inquiry seeking information from Federal, State, or local law enforcement officials, or other sources of potentially relevant information. After completion of this inquiry and any further measures required under paragraphs (c), (d), (e), and (f) of this section, the cemetery director will make a decision on the request for interment or memorialization in accordance with paragraph (b), (e), or (g) of this section.</P> <P>(b) <E T="03">Decision approving request without a proceeding or termination of a claim by personal representative without a proceeding.</E> (1) If, after conducting the inquiry described in paragraph (a) of this section, the cemetery director determines that there is no clear and convincing evidence that the deceased committed a Federal or State capital crime of which he or she was not convicted due to death or flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director will make a decision approving the interment or memorialization.</P> <P>(2) If the personal representative elects for burial at a location other than a VA national cemetery, or makes alternate arrangements for burial at a location other than a VA national cemetery, the request for interment or memorialization will be considered withdrawn and action on the request will be terminated.</P> <P>(c) <E T="03">Initiation of a proceeding.</E> (1) If, after conducting the inquiry described <PRTPAGE P="80"/>in paragraph (a) of this section, the cemetery director determines that there appears to be clear and convincing evidence that the deceased has committed a Federal or State capital crime of which he or she was not convicted by reason of unavailability for trial due to death or flight to avoid prosecution, the cemetery director will provide the personal representative of the deceased with a written summary of the evidence of record and a written notice of procedural options.</P> <P>(2) The notice of procedural options will inform the personal representative that he or she may, within 15 days of receipt of the notice:</P> <P>(i) Request a hearing on the matter;</P> <P>(ii) Submit a written statement, with or without supporting documentation, for inclusion in the record;</P> <P>(iii) Waive a hearing and submission of a written statement and have the matter forwarded immediately to the Under Secretary for Memorial Affairs for a finding; or</P> <P>(iv) Notify the cemetery director that the personal representative is withdrawing the request for interment or memorialization, thereby, closing the claim.</P> <P>(3) The notice of procedural options will also inform the personal representative that, if he or she does not exercise one or more of the stated options within the prescribed period, the matter will be forwarded to the Under Secretary for Memorial Affairs for a finding based on the existing record.</P> <P>(d) <E T="03">Hearing.</E> If a hearing is requested, the Director, Memorial Services Network will conduct the hearing. The purpose of the hearing is to permit the personal representative of the deceased to present evidence concerning whether the deceased committed a crime which would render the deceased ineligible for interment or memorialization in a national cemetery. Testimony at the hearing will be presented under oath, and the personal representative will have the right to representation by counsel and the right to call witnesses. The VA official conducting the hearing will have the authority to administer oaths. The hearing will be conducted in an informal manner and court rules of evidence will not apply. The hearing will be recorded on audiotape and, unless the personal representative waives transcription, a transcript of the hearing will be produced and included in the record.</P> <P>(e) <E T="03">Decision of approval or referral for a finding after a proceeding.</E> Following a hearing or the timely submission of a written statement, or in the event a hearing is waived or no hearing is requested and no written statement is submitted within the time specified:</P> <P>(1) If the cemetery director determines that it has not been established by clear and convincing evidence that the deceased committed a Federal or State capital crime of which he or she was not convicted due to death or flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director will make a decision approving interment or memorialization; or</P> <P>(2) If the cemetery director believes that there is clear and convincing evidence that the deceased committed a Federal or State capital crime of which he or she was not convicted due to death or flight to avoid prosecution, the cemetery director will forward a request for a finding on that issue, together with the cemetery director's recommendation and a copy of the record to the Under Secretary for Memorial Affairs.</P> <P>(f) <E T="03">Finding by the Under Secretary for Memorial Affairs.</E> Upon receipt of a request from the cemetery director under paragraph (e) of this section, the Under Secretary for Memorial Affairs will make a finding concerning whether the deceased committed a Federal or State capital crime of which he or she was not convicted by reason of unavailability for trial due to death or flight to avoid prosecution. The finding will be based on consideration of the cemetery director's recommendation and the record supplied by the cemetery director.</P> <P>(1) A finding that the deceased committed a crime referred to in paragraph (f) of this section must be based on clear and convincing evidence.</P> <P>(2) The cemetery director will be provided with written notification of the finding of the Under Secretary for Memorial Affairs.</P> <P>(g) <E T="03">Decision after finding.</E> Upon receipt of notification of the finding of the <PRTPAGE P="81"/>Under Secretary for Memorial Affairs, the cemetery director will make a decision on the request for interment or memorialization pursuant to 38 U.S.C. 2411. In making that decision, the cemetery director will be bound by the finding of the Under Secretary for Memorial Affairs.</P> <P>(h) <E T="03">Notice of decision.</E> The cemetery director will provide written notice of the finding of the Under Secretary for Memorial Affairs and of a decision under paragraph (b), (e)(1), or (g) of this section. With notice of any decision denying a request for interment or memorialization, the cemetery director will provide written notice of appellate rights to the personal representative of the deceased, in accordance with § 19.25 of this title. This will include notice of the opportunity to file a notice of disagreement with the decision of the cemetery director and the finding of the Under Secretary for Memorial Affairs. Action following receipt of a notice of disagreement with a denial of eligibility for interment or memorialization under this section will be in accordance with §§ 19.26 through 19.38 of this title.</P> <SECAUTH>(Authority: 38 U.S.C. 512, 2411)</SECAUTH> <CITA>[67 FR 62644, Oct. 8, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.619</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.620</SECTNO> <SUBJECT>Eligibility for burial.</SUBJECT> <P>The following is a list of those individuals who are eligible for burial in a national cemetery:</P> <P>(a) Any veteran (which for purposes of this section includes a person who died in the active military, naval, or air service).</P> <P>(b) Any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs under honorable conditions while such member is hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while such member is performing active duty for training, inactive duty training, or undergoing that hospitalization or treatment at the expense of the United States.</P> <P>(c) Any Member of the Reserve Officers' Training Corps of the Army, Navy, or Air Force whose death occurs under honorable conditions while such member is—</P> <P>(1) Attending an authorized training camp or on an authorized practice cruise;</P> <P>(2) Performing authorized travel to or from that camp or cruise; or</P> <P>(3) Hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while such member is—</P> <P>(i) Attending that camp or on that cruise;</P> <P>(ii) Performing that travel; or</P> <P>(iii) Undergoing that hospitalization or treatment at the expense of the United States.</P> <P>(d) Any person who, during any war in which the United States is or has been engaged, served in the armed forces of any government allied with the United States during that war, whose last such service terminated honorably, and who was a citizen of the United States at the time of entry on such service and at the time of his or her death.</P> <P>(e) The spouse, surviving spouse (which for purposes of this section includes an unremarried surviving spouse who had a subsequent remarriage which was terminated by death or divorce), unmarried minor child (which for purposes of this section is limited to a child under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution), and unmarried adult child (which for purposes of this section is limited to a child who became permanently physically or mentally disabled and incapable of self-support before reaching 21 years of age, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution) of a person eligible under paragraph (a), (b), (c), (d), or (g) of this section.</P> <P>(f) Such other persons or classes of persons as may be designated by the Secretary.</P> <P>(g) Any person who at the time of death was entitled to retired pay under chapter 1223 of title 10, United States Code, or would have been entitled to retired pay under that chapter but for <PRTPAGE P="82"/>the fact that the person was under 60 years of age.</P> <P>(h) Any person, whose death occurred on or after November 1, 2000, with service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, if such person at the time of death—</P> <P>(1) Was a citizen of the United States or an alien lawfully admitted for permanent residence in the United States; and</P> <P>(2) Resided in the United States.</P> <CITA>[68 FR 15660, Apr. 1, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.621</SECTNO> <SUBJECT>Disinterments from national cemeteries.</SUBJECT> <P>(a) Interments of eligible decedents in national cemeteries are considered permanent and final. Disinterment will be permitted only for cogent reasons and with the prior written authorization of the National Cemetery Area Office Director or Cemetery Director responsible for the cemetery involved. Disinterment from a national cemetery will be approved only when all living immediate family members of the decedent, and the person who initiated the interment (whether or not he or she is a member of the immediate family), give their written consent, or when a court order or State instrumentality of competent jurisdiction directs the disinterment. For purposes of this section, “immediate family members” are defined as surviving spouse, whether or not he or she is remarried; all adult children of the decedent; the appointed guardian(s) of minor children; and the appointed guardian(s) of the surviving spouse or of the adult child(ren) of the decedent. If the surviving spouse and all of the children of the decedent are deceased, the decedent's parents will be considered “immediate family members.”</P> <P>(b) All requests for authority to disinter remains will be submitted on VA Form 40-4970, Request for Disinterment, and will include the following information:</P> <P>(1) A full statement of reasons for the proposed disinterment.</P> <P>(2) Notarized statement(s) by all living immediate family members of the decedent, and the person who initiated the interment (whether or not he or she is a member of the immediate family), that they consent to the proposed disinterment.</P> <P>(3) A notarized statement, by the person requesting the disinterment that those who supplied affidavits comprise all the living immediate family members of the deceased. </P> <PARAUTH>(Authority: 38 U.S.C. 2404)</PARAUTH> <P>(c) In lieu of the documents required in paragraph (b) of this section, an order of a court of competent jurisdiction will be considered.</P> <P>(d) Any disinterment that may be authorized under this section must be accomplished without expense to the Government.</P> <APPRO>(The reporting and recordkeeping requirements contained in paragraph (b) have been approved by the Office of Management and Budget under OMB control number 2900-0365)</APPRO> <CITA>[43 FR 26571, June 21, 1978, as amended at 47 FR 50860, Nov. 10, 1982; 49 FR 34483, Aug. 31, 1984; 54 FR 6521, Feb. 13, 1989; 62 FR 51783, Oct. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1.622-1.628</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.629</SECTNO> <SUBJECT>Monetary allowance in lieu of a Government-furnished outer burial receptacle.</SUBJECT> <P>(a) <E T="03">Definitions—Outer burial receptacle.</E> For purposes of this section, an outer burial receptacle means a graveliner, burial vault, or other similar type of container for a casket.</P> <P>(b) <E T="03">Purpose.</E> This section provides for payment of a monetary allowance for an outer burial receptacle for any interment in a VA national cemetery where a privately-purchased outer burial receptacle has been used in lieu of a Government-furnished graveliner.</P> <P>(c) <E T="03">Second interments.</E> In burials where a casket already exists in a grave with or without a graveliner, placement of a second casket in an outer burial receptacle will not be permitted in the same <PRTPAGE P="83"/>grave unless the national cemetery director determines that the already interred casket will not be damaged.</P> <P>(d) <E T="03">Payment of monetary allowance.</E> VA will pay a monetary allowance for each burial in a VA national cemetery where a privately-purchased outer burial receptacle was used on and after October 9, 1996. For burials on and after January 1, 2000, the person identified in records contained in the National Cemetery Administration Burial Operations Support System as the person who privately purchased the outer burial receptacle will be paid the monetary allowance. For burials during the period October 9, 1996 through December 31, 1999, the allowance will be paid to the person identified as the next of kin in records contained in the National Cemetery Administration Burial Operations Support System based on the presumption that such person privately purchased the outer burial receptacle (however, if a person who is not listed as the next of kin provides evidence that he or she privately purchased the outer burial receptacle, the allowance will be paid instead to that person). No application is required to receive payment of a monetary allowance.</P> <P>(e) <E T="03">Amount of the allowance.</E> (1) For calendar year 2000 and each calendar year thereafter, the allowance will be the average cost, as determined by VA, of Government-furnished graveliners, less the administrative costs incurred by VA in processing and paying the allowance.</P> <P>(i) The average cost of Government-furnished graveliners will be based upon the actual average cost to the Government of such graveliners during the most recent fiscal year ending prior to the start of the calendar year for which the amount of the allowance will be used. This average cost will be determined by taking VA's total cost during that fiscal year for single-depth graveliners which were procured for placement at the time of interment and dividing it by the total number of such graveliners procured by VA during that fiscal year. The calculation shall exclude both graveliners procured and pre-placed in gravesites as part of cemetery gravesite development projects and all double-depth graveliners.</P> <P>(ii) The administrative costs incurred by VA will consist of those costs that relate to processing and paying an allowance, as determined by VA, for the calendar year ending prior to the start of the calendar year for which the amount of the allowance will be used.</P> <P>(2) For calendar year 2000 and each calendar year thereafter, the amount of the allowance for each calendar year will be published in the “Notices” section of the <E T="04">Federal Register</E>. The <E T="04">Federal Register</E> Notice will also provide, as information, the determined average cost of Government-furnished graveliners and the determined amount of the administrative costs to be deducted.</P> <P>(3) The published allowance amount for interments which occur during calendar year 2000 will also be used for payment of any allowances for interments which occurred during the period from October 9, 1996 through December 31, 1999.</P> <SECAUTH>(Authority: 38 U.S.C. 2306(d))</SECAUTH> <CITA>[65 FR 76937, Dec. 8, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.630</SECTNO> <SUBJECT>Headstones and markers.</SUBJECT> <P>(a) Types of Government headstones and markers and inscriptions will be in accordance with policies approved by the Secretary.</P> <P>(b) Inscriptions on Government headstones, markers, and private monuments will be in accordance with policies and specifications of the Under Secretary for Memorial Affairs.</P> <P>(c) A memorial headstone or marker furnished for a deceased veteran by the Government may be erected in a private cemetery or in a national cemetery section established for this purpose. The headstones or markers for national cemeteries will be of the standard design authorized for the cemetery in which they are to be erected. In addition to the authorized inscription, the words “In Memory Of” are mandatory.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[43 FR 26571, June 21, 1978, as amended at 57 FR 44123, Sept. 24, 1992; 61 FR 27282, May 31, 1996]</CITA> </SECTION> <SECTION> <PRTPAGE P="84"/> <SECTNO>§ 1.631</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.632</SECTNO> <SUBJECT>Headstone and marker application required.</SUBJECT> <P>(a) Headstones and markers for graves in national cemeteries shall be ordered from the Record of Interment (VA Form 40-4956) prepared by the national cemetery superintendent at the time of interment. No further application is required.</P> <P>(b) Submission of VA Form 40-1330, Application for Headstone or Marker, is required for the purpose of:</P> <P>(1) Ordering a Government headstone or marker for any unmarked grave of any eligible veteran buried in a private or local cemetery.</P> <P>(2) Ordering a Government headstone or marker for any unmarked grave in a post cemetery of the Armed Forces.</P> <P>(3) Ordering a Government memorial headstone or marker for placement in a national cemetery, in a private or local cemetery and any post cemetery of the Armed Forces.</P> </SECTION> <SECTION> <SECTNO>§ 1.633</SECTNO> <SUBJECT>Group memorial monuments.</SUBJECT> <P>(a) <E T="03">Definitions of terms.</E> For the purpose of this section, the following definitions apply:</P> <P>(1) Group—all the known and unknown dead who perished in a common military event.</P> <P>(2) Memorial Monument—a monument commemorating veterans, whose remains have not been recovered or identified. Monuments will be selected in accordance with policies established under 38 CFR 1.630.</P> <P>(3) Next of kin—recognized in order: Surviving spouse; children, according to age; parents, including adoptive, stepparents, and foster parents; brothers or sisters, including half or stepbrothers and stepsisters; grandparents; grandchildren; uncles or aunts; nephews or nieces; cousins; and/or other lineal descendent.</P> <P>(4) Documentary evidence—Official documents, records, or correspondence signed by an Armed Services branch historical center representative attesting to the accuracy of the evidence.</P> <P>(b) The Secretary may furnish at government expense a group memorial monument upon request of next of kin. The group memorial monument will commemorate two or more identified members of the Armed Forces, including their reserve components, who died in a sanctioned common military event, (e.g., battle or other hostile action, bombing or other explosion, disappearance of aircraft, vessel or other vehicle) while in active military, naval or air service, and whose remains were not recovered or identified, were buried at sea, or are otherwise unavailable for interment.</P> <P>(c) A group memorial monument furnished by VA may be placed only in a national cemetery in an area reserved for such purpose. If a group memorial monument has already been provided under this regulation or by any governmental body, e.g., the American Battle Monuments Commission, to commemorate the dead from a common military event, an additional group memorial monument will not be provided by VA for the same purpose.</P> <P>(d) Application for a group memorial monument shall be submitted in a manner specified by the Secretary. Evidence used to establish and determine eligibility for a group memorial monument will conform to paragraph (a)(4) of this section.</P> <SECAUTH>(Authority: 38 U.S.C. 501, 2403)</SECAUTH> <CITA>[57 FR 44124, Sept. 24, 1992]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Inventions by Employees of Department of Veterans Affairs</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.650 to 1.666 issued under sect. 1, 66 Stat. 811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O. 10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.</P> </AUTH> <SECTION> <SECTNO>§ 1.650</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of these regulations is to prescribe the procedure to be followed in determining and protecting the respective rights of the United States Government and of Department of Veterans Affairs employees who make inventions.</P> <CITA>[21 FR 10377, Dec. 28, 1956, as amended at 61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.651</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>The terms as used in the regulations concerning inventions by employees of the Department of Veterans Affairs are defined as follows:<PRTPAGE P="85"/> </P> <P>(a) The term <E T="03">invention</E> includes any art, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the patent laws of the United States.</P> <P>(b) The term <E T="03">employee</E> or <E T="03">Government employee</E> means any officer or employee, civilian or military, of the Department of Veterans Affairs. Part-time, without compensation (WOC) employees and part-time consultants are included.</P> <P>(c) The term <E T="03">Secretary of Commerce</E> means the Under Secretary of Commerce for Technology.</P> <CITA>[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.652</SECTNO> <SUBJECT>Criteria for determining rights to employee inventions.</SUBJECT> <P>(a) The criteria to be applied in determining the respective rights of the Government and of the employee-inventor in and to any invention subject to these provisions shall be in accordance with the Uniform Patent Policy regulations found at 37 CFR 501.6 and 501.7.</P> <P>(b) Ownership in and to inventions arising under Cooperative Research and Development Agreements (CRADAs) pursuant to 15 USC 3710a shall be governed by the provisions of the pertinent CRADA, as authorized by the Federal Technology Transfer Act.</P> <SECAUTH>(Authority: 15 U.S.C. 3710a; 37 CFR part 501)</SECAUTH> <CITA>[61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.653</SECTNO> <SUBJECT>Delegation of authority.</SUBJECT> <P>The General Counsel, Deputy General Counsel or Assistant General Counsel for Professional Staff Group IV is authorized to act for the Secretary of Veterans Affairs in matters concerning patents and inventions, unless otherwise required by law. The determination of rights to an invention as between the Government and the employee where there is no cooperative research and development agreement shall be made by the General Counsel, Deputy General Counsel or the Assistant General Counsel for Professional Staff Group IV, in accordance with 37 CFR part 500.</P> <CITA>[62 FR 14822, Mar. 28, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.654</SECTNO> <SUBJECT>Patenting of inventions.</SUBJECT> <P>Any invention owned by the Government under the criteria as set forth in 37 CFR 501.6 should be protected by an application for a domestic patent and other necessary documents executed by the employee inventor prepared by or through the General Counsel, Deputy General Counsel or Assistant General Counsel for Professional Staff Group IV, unless some other agency has primary interest or it is decided to dedicate the invention to the public. Such dedication requires approval of the Secretary of Commerce. Applications on behalf of the Government for foreign patents may be made if determined to be in the public interest. The payment of necessary expenses in connection with any application filed or patent obtained under this section by the Department of Veterans Affairs is authorized.</P> <CITA>[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61 FR 29658, June 12, 1996; 62 FR 14822, Mar. 28, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.655</SECTNO> <SUBJECT>Government license in invention of employee.</SUBJECT> <P>If an invention is made by an employee and it is determined that the employee inventor is entitled to full ownership under 37 CFR 501.6, subject to a nonexclusive, irrevocable, royalty-free license in the Government with power to grant sublicenses for all Governmental purposes, it shall be the duty of the employee inventor to notify the Office of General Counsel of the status of the patent application, including the patent application number, so that the Department may protect the interests reserved to the Government under 37 CFR 501.6.</P> <CITA>[61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.656</SECTNO> <SUBJECT>Information to be submitted by inventor.</SUBJECT> <P>(a) In the case of an invention or believed invention, the inventor will prepare a statement for submission to his or her immediate superior. It will be <PRTPAGE P="86"/>submitted regardless of where the ownership is believed to exist. The statement will consist of two parts:</P> <P>(1) One part of the statement will be a disclosure of the invention sufficient to permit the preparation of a patent applicant. It shall consist of a description, including where applicable, of the parts or components of the invention as shown on the drawings or blueprints, accompanied further by a description of the construction and operation of the invention. Photographs of the invention may be included. The inventor should state pertinent prior art known to him or her, and set forth in detail as clearly as possible the respects which his or her invention differs.</P> <P>(2) The other part of the statement will set forth the circumstances attending the making of the invention. It will include the full name and address of the inventor; the grade and title of his or her position; whether full time or part time; his or her duties at the time the invention was made; the facts pertinent to a determination whether the invention bore a direct relation to or was made in consequence of such official duties; whether there was, and if so, the terms of any special agreement or understanding with respect to use or manufacture of his or her invention; date of the invention; when and where it was conceived, constructed and tested; whether it was made entirely during working hours; whether, and to what extent there was a contribution by the Government of any of the following: Facilities; equipment; materials or supplies; funds; information; time or services of other Government employees on duty. When the invention is disclosed through publication, or in consultation with a manufacturer or attorney, simultaneous notification of the publication shall be given to the Office of General Counsel. A copy of the article will accompany the notification.</P> <P>(b) The inventor's immediate superior shall promptly review the statement of the employee inventor for completeness and accuracy, and shall certify that the employee's statement of circumstances attending the invention is or is not correct, giving reasons if pertinent. The file should then be submitted through the facility head (or administration heads or top staff officials in the case of Central Office employees) to the General Counsel together with any comments or recommendations.</P> <CITA>[61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.657</SECTNO> <SUBJECT>Determination of rights.</SUBJECT> <P>The General Counsel, Deputy General Counsel or Assistant General Counsel for Professional Staff Group IV will make a determination of rights subject to review where required by the Secretary of Commerce. The determination will be in accordance with 37 CFR 501.7.</P> <CITA>[61 FR 29658, June 12, 1996, as amended at 62 FR 14822, Mar. 28, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.658</SECTNO> <SUBJECT>Right of appeal.</SUBJECT> <P>In accordance with 37 CFR 501.8, the employee has a right of appeal to the Secretary of Commerce within 30 days of receipt of the Department's determination of ownership rights. The decision reached by the Secretary of Commerce will be communicated to the employee.</P> <CITA>[61 FR 29658, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.659</SECTNO> <SUBJECT>Relationship to incentive awards program.</SUBJECT> <P>Procedures set out in the regulations concerning inventions by employees of the Department of Veterans Affairs are not affected by the submission or proposed submission of an employee suggestion or idea on an item which may be patentable. Consideration of an item for a determination of ownership rights and also for an incentive award will proceed simultaneously, usually on separate correspondence. An employee suggestion or copies and extracts of the file may be forwarded to the General Counsel by the reviewing or awarding authority, or by the facility head, for an ownership determination where the employee idea or suggestion involves an invention. The employee shall be directed to submit a disclosure of invention in accordance with these regulations if such has not been previously submitted.</P> <CITA>[31 FR 5291, Apr. 2, 1966, as amended at 61 FR 29659, June 12, 1996]</CITA> </SECTION> <SECTION> <PRTPAGE P="87"/> <SECTNO>§ 1.660</SECTNO> <SUBJECT>Expeditious handling.</SUBJECT> <P>No patent may be granted where the invention has been in public use or publicly disclosed for more than one year before filing of a patent application. Hence, submissions involving inventions should be made as promptly as possible in order to avoid delay which might jeopardize title to the invention or impair the rights of the inventor or the Government.</P> <CITA>[61 FR 29659, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.661</SECTNO> <SUBJECT>Information to be kept confidential.</SUBJECT> <P>All information pertaining to inventions and pending patent applications is confidential, and employees having access to such information are forbidden to disclose or reveal the same except as required in the performance of their official duties.</P> <CITA>[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.662</SECTNO> <SUBJECT>Provisions of regulations made a condition of employment.</SUBJECT> <P>The provisions of the regulations concerning inventions by employees of the Department of Veterans Affairs shall be a condition of employment of all employees.</P> <CITA>[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.663</SECTNO> <SUBJECT>Licensing of Government-owned inventions.</SUBJECT> <P>(a) The licensing of Government-owned inventions under VA control and custody will be conducted pursuant to the regulations on the licensing of Government-owned inventions contained in 37 CFR part 404, and 15 U.S.C. 3710a, as appropriate.</P> <P>(b) Any person whose application for a license in an invention under VA control and custody has been denied; whose license in such an invention has been modified or terminated, in whole or in part; or who timely filed a written objection in response to a proposal to grant an exclusive or partially exclusive license in an invention under VA control or custody, may, if damaged, appeal any decision or determination concerning the grant, denial, interpretation, modification, or termination of a license to the Secretary of Veterans Affairs. Such appeal shall be in writing; shall set forth with specificity the basis of the appeal; and shall be postmarked not later than 60 days after the action being appealed. Upon request of the appellant, such appeal may be considered by one to three persons appointed on a case-by-case basis by the Secretary of Veterans Affairs. Such a request will be granted only if it accompanies the written appeal. Appellant may appear and be represented by counsel before such a panel, which will sit in Washington, DC. If the appeal challenges a decision to grant an exclusive or partially exclusive license in an invention under VA control or custody, the licensee shall be furnished a copy of the appeal, shall be given the opportunity to respond in writing, may appear and be represented by counsel at any hearing requested by appellant, and may request a hearing if appellant has not, under the same terms and conditions, at which the appellant may also appear and be represented by counsel.</P> <CITA>[61 FR 29659, June 12, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§§ 1.664-1.666</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Administrative Control of Funds</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 30622, July 5, 1983, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.670</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The following regulations establish a system of administrative controls for all appropriations and funds available to the Department of Veterans Affairs to accomplish the following purposes:</P> <P>(a) Establish an administrative subdivision of controls to restrict obligations and expenditures against each appropriation or fund to the amount of the apportionment or the reapportionment; and</P> <P>(b) Fix responsibility for the control of appropriations or funds to high level officials who bear the responsibility for apportionment or reapportionment control.</P> <SECAUTH>(Authority: 31 U.S.C. 1514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.671</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For the purpose of §§ 1.670 through 1.673, the following definitions apply:<PRTPAGE P="88"/> </P> <P>(a) <E T="03">Administrative subdivision of funds.</E> An administrative subdivision of funds is any administrative subdivision of an appropriation or fund which makes funds available in a specified amount for the purpose of controlling apportionments or reapportionments.</P> <P>(b) <E T="03">Allotment.</E> An allotment is an authorization by the Director, Office of Budget and Finance, to department and staff office heads (allottees) to incur obligations within specified amounts, during a specified period, pursuant to an Office of Management and Budget apportionment or reapportionment action. The creation of an obligation in excess of an allotment is a violation of the administrative subdivision of funds.</P> <P>(c) <E T="03">Allowance.</E> An allowance is a subdivision below the allotment level, and is a guideline which may be issued by department or staff office heads (allottees) to facility directors and other officials, showing the expenditure pattern or operating budget they will be expected to follow in light of the program activities contemplated by the overall VA budget or plan of expenditure. The creation of an obligation in excess of an allowance is not a violation of the administrative subdivision of funds.</P> <SECAUTH>(Authority: 31 U.S.C. 1514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.672</SECTNO> <SUBJECT>Responsibilities.</SUBJECT> <P>(a) The issuance of an allotment to the administration and staff office heads (allottees) is required and is the responsibility of the Director, Office of Budget and Finance. The sum of such allotments shall not be in excess of the amount indicated in the apportionment or reapportionment document.</P> <P>(b) The issuance of an allowance is discretionary with department or staff office heads (allottees), as an allowance is merely a management device which allottees may utilize in carrying out their responsibilities. Allottees are responsible for keeping obligations within the amounts of their allotments, whether allowances are issued or not.</P> <P>(c) The Director, Office of Budget and Finance, is responsible for requesting apportionments and reapportionments from the Office of Management and Budget. Administration and staff heads shall promptly request that an appropriation or fund be reapportioned if feasible whenever it appears that obligations may exceed the level of the apportionment.</P> <SECAUTH>(Authority: 31 U.S.C. 1514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.673</SECTNO> <SUBJECT>Responsibility for violations of the administrative subdivision of funds.</SUBJECT> <P>(a) In the event an allotment or an apportionment is exceeded except in the circumstances described in paragraph (b) of this section, the following factors will be considered in determining which official, or officials, are responsible for the violation.</P> <P>(1) Knowledge of circumstances which could lead to an allotment or apportionment being exceeded;</P> <P>(2) Whether the official had received explicit instructions to continue or cease incurring obligations;</P> <P>(3) Whether any action was taken in contravention of or with disregard for, instructions to monitor obligations incurred;</P> <P>(4) Whether the official had the authority to curtail obligations by directing a change in the manner of operations of the department or staff office; or</P> <P>(5) Any other facts which tend to fix the responsibility for the obligations which resulted in the allotment or apportionment being exceeded.</P> <P>(b) In the event that the sum of the allotments made in a particular fiscal year exceeds the amount apportioned by the Office of Management and Budget, and the apportionment is subsequently exceeded because of this action, the official who made the excess allotments will be the official responsible for the violation.</P> <SECAUTH>(Authority: 31 U.S.C. 1514)</SECAUTH> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Use of Official Mail in the Location and Recovery of Missing Children</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 10889, Apr. 6, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <PRTPAGE P="89"/> <SECTNO>§ 1.700</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>Sections 1.700 through 1.705 of this title provide a Missing Children Official Mail Program in the Department of Veterans Affairs.</P> <SECAUTH>(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)</SECAUTH> <CITA>[60 FR 48387, Sept. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.701</SECTNO> <SUBJECT>Contact person for missing children official mail program.</SUBJECT> <P>The Department of Veterans Affairs contact person for the Missing Children Official Mail Program is: Mrs. Roslynd R. Stewart, Information Management Service (045A4), Office of Policy and Program Assistance, Office of Information Resources Management, Office of Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420-0001. Telephone: (202) 565-8949.</P> <SECAUTH>(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)</SECAUTH> <CITA>[60 FR 48388, Sept. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.702</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>(a) The Department of Veterans Affairs will supplement and expand the national effort to assist in the location and recovery of missing children by maximizing the economical use of missing children information in domestic official mail and publications directed to members of the public and Department of Veterans Affairs employees.</P> <P>(b) The Department of Veterans Affairs will insert pictures and biographical information related to missing children in a variety of official mail originating at the Department of Veterans Affairs automation centers. In addition, pictures and biographical information are printed in self-mailers and other Department of Veterans Affairs publications (newsletters, bulletins, etc.).</P> <P>(c) The National Center for Missing and Exploited Children (National Center) is the sole source from which the Department of Veterans Affairs will acquire the camera-ready and other photographic and biographical materials to be disseminated for use by Department of Veterans Affairs organizational units. The information is ordered and disseminated by Information Management Service.</P> <P>(d) The Department of Veterans Affairs will remove all printed inserts and other materials from circulation or other use within a three-month period from the date the National Center notifies the Department of Veterans Affairs that a child whose picture and biographical information have been made available to the Department of Veterans Affairs has been recovered or that permission of the parent(s) or guardian to use the child's photograph and biographical information has been withdrawn. The National Center is responsible for immediately notifying the Department of Veterans Affairs contact person, in writing, of the need to withdraw from circulation official mail and other materials related to a particular child. Photographs which were reasonably current as of the time of the child's disappearence shall be the only acceptable form of visual medium or pictorial likeness used in official mail.</P> <P>(e) The Department of Veterans Affairs will give priority to official mail that is addressed to:</P> <P>(1) Members of the public that will be received in the United States, its territories and possessions; and</P> <P>(2) Inter- and intra-agency publications and other media that will also be widely disseminated to Department of Veterans Affairs employees.</P> <P>(f) The Department of Veterans Affairs will avoid repetitive mailings of material to the same individuals.</P> <P>(g) All Department of Veterans Affairs employee suggestions and/or recommendations for additional cost-effective opportunities to use photographs and biographical data on missing children will be provided to the Department of Veterans Affairs contact person.</P> <P>(h) These shall be the sole regulations for the Department of Veterans Affairs and its component organizational units.</P> <SECAUTH>(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301).</SECAUTH> <CITA>[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.703</SECTNO> <SUBJECT>Percentage estimate.</SUBJECT> <P>It is the Department of Veterans Affairs objective that 20 percent of its first class official mail addressed to the <PRTPAGE P="90"/>public contain missing children photographs and information.</P> <SECAUTH>(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)</SECAUTH> <CITA>[60 FR 48388, Sept. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.704</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.705</SECTNO> <SUBJECT>Restrictions on use of missing children information.</SUBJECT> <P>Missing children pictures and biographical data shall not be:</P> <P>(a) Printed on official envelopes and other materials ordered and stocked in quantities that represent more than a 90-day supply.</P> <P>(b) Printed on blank pages or covers of publications that may be included in the Superintendent of Documents Sales Program or be distributed to depository libraries.</P> <P>(c) Inserted in any envelope or publication the contents of which may be construed to be inappropriate for association with the missing children program.</P> <P>(d) Inserted in any envelope where the insertion would increase the postage cost for the item being mailed.</P> <P>(e) Placed on letter-size envelopes on the official indicia, the area designated for optical character readers (OCRs), bar code read area, and return address area in accordance with the Office of Juvenile Justice and Delinquency Prevention guidelines and U.S. Postal Service standards.</P> <SECAUTH>(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)</SECAUTH> <CITA>[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Homeless Claimants</HD> <SECTION> <SECTNO>§ 1.710</SECTNO> <SUBJECT>Homeless claimants: Delivery of benefit payments and correspondence.</SUBJECT> <P>(a) All correspondence and all checks for benefits payable to claimants under laws administered by the Department of Veterans Affairs shall be directed to the address specified by the claimant. The Department of Veterans Affairs will honor for this purpose any address of the claimant in care of another person or organization or in care of general delivery at a United States post office. In no event will a claim or payment of benefits be denied because the claimant provides no mailing address. </P> <PARAUTH>(Authority: 38 U.S.C. 5103; 5120)</PARAUTH> <P>(b) To ensure prompt delivery of benefit payments and correspondence, claimants who seek personal assistance from Veterans Benefits Counselors when filing their claims shall be counseled as to the importance of providing his or her current mailing address and, if no address is provided, the procedures for delivery described in paragraph (d) of this section. </P> <PARAUTH>(Authority: 38 U.S.C. 5103; 5120)</PARAUTH> <P>(c) The Department of Veterans Affairs shall prepare and distribute to organizations specially serving the needs of veterans and the homeless, including but not limited to shelters, kitchens and private outreach facilities, information encouraging such organizations to counsel individuals on the importance of providing mailing addresses to the Department of Veterans Affairs and advising them of this regulation. </P> <PARAUTH>(Authority: 38 U.S.C. 5103; 5120)</PARAUTH> <P>(d) If a claimant fails or refuses to provide a current mailing address to the Department of Veterans Affairs, all correspondence and any checks for benefits to which the claimant is entitled will be delivered to the Agent Cashier of the regional office which adjudicated or is adjudicating the claim in the case of compensation, pension or survivors’ benefits, to the Agent Cashier of the Department of Veterans Affairs facility closest to the educational institution or training establishment attended by a claimant in the case of education benefits, or to the Agent Cashier of any other Department of Veterans Affairs facility deemed by the Agency to be appropriate under the circumstances of the particular case. The claimant, within 30 days after issuance, may obtain delivery of any check or correspondence held by an Agent Cashier upon presentation of proper identification. Checks unclaimed after 30 days will be returned to the Department of the Treasury and the correspondence to the regional office or facility of jurisdiction. Thereafter, the claimant must request the reissuance of any <PRTPAGE P="91"/>such check or item of correspondence by written notice to the Department of Veterans Affairs.</P> <SECAUTH>(Authority: 38 U.S.C. 5103; 5120)</SECAUTH> <CITA>[53 FR 22654, June 17, 1988]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Appeals From Decisions of Contracting Officers Under the Contract Disputes Act of <E T="01">1978</E> </HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.780 through 1.783 issued under 41 U.S.C. 601-613, 38 U.S.C. 501.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>47 FR 12340, Mar. 23, 1982, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.780</SECTNO> <SUBJECT>Board of Contract Appeals—jurisdiction.</SUBJECT> <P>The Department of Veterans Affairs Board of Contract Appeals (referred to in §§ 1.780 through 1.783 as the <E T="03">Board</E>) shall consider and determine appeals from decisions of contracting officers pursuant to the Contract Disputes Act of 1978 (41 U.S.C. 601-613) relating to contracts made by (a) the Department of Veterans Affairs or (b) any other executive agency when such agency or the Administrator for Federal Procurement Policy has designated the Board to decide the appeal.</P> <CITA>[47 FR 12340, Mar. 23, 1982, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.781</SECTNO> <SUBJECT>Organization and address of the Board.</SUBJECT> <P>(a) The Board consists of a Chair, Vice Chair, and other members, all of whom are attorneys at law duly licensed by any State, commonwealth, territory, or the District of Columbia. In general, the appeals are assigned to a panel of at least 3 members who decide the case by a majority vote. Board Members are designated Administrative Judges.</P> <P>(b) The Board's mailing address is 810 Vermont Avenue, NW., Washington, DC 20420.</P> </SECTION> <SECTION> <SECTNO>§ 1.782</SECTNO> <SUBJECT>Policy and procedure.</SUBJECT> <P>(a) <E T="03">Rules of procedure.</E> Appeals to the Board are processed in accordance with Rules of Procedure adopted by the Board in compliance with the guidelines issued by the Office of Federal Procurement Policy under the provisions of the Contract Disputes Act of 1978 (41 U.S.C. 601, 607(h)). There is no further administrative appeal within the Department of Veterans Affairs from final decisions rendered by the Board.</P> <P>(b) <E T="03">Application and interpretation of rules.</E> It is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The rules, therefore, are applied and interpreted to provide, to the fullest extent practicable, informal expeditious, and inexpensive resolution of disputes. For that purpose, the Board is authorized to require contracting officers and other Department of Veterans Affairs officials to furnish the Board with such information, technical data, and other assistance as the Board may require in the performance of its duties.</P> </SECTION> <SECTION> <SECTNO>§ 1.783</SECTNO> <SUBJECT>Rules of the Board.</SUBJECT> <P>(a) <E T="03">Rule 1; appeals from final decisions and requests for final decisions—</E>(1) <E T="03">Notice of appeal.</E> Notice of an appeal shall be in writing and mailed to or otherwise furnished the Board within 90 days from the date of receipt of a contracting officer's final decision. A copy thereof shall be furnished the contracting officer from whose decision the appeal is taken.</P> <P>(2) <E T="03">Failure to issue a final decision.</E> (i) Where the contractor has submitted a claim of $50,000 or less to the contracting officer and, in writing, has requested a decision within 60 days from receipt of the request, and the contracting officer has not done so, the contractor may file a notice of appeal as provided in paragraph (a)(1) of this section, citing the failure of the contracting officer to issue a decision.</P> <P>(ii) Where the contractor has submitted a properly certified claim in excess of $50,000 to the contracting officer, or pursuant to the Disputes Clause, has requested a decision by the contracting officer which presently involves no monetary amount, and the contracting officer has failed to issue a decision within a reasonable time, taking into account such factors as the size and complexity of the claim, the contractor may file a notice of appeal as provided in paragraph (a)(1) of this section, citing the failure of the contracting officer to issue a decision.</P> <P>(3) <E T="03">Stay of proceedings.</E> Upon the docketing of an appeal filed pursuant to the <PRTPAGE P="92"/>provisions of paragraph (a)(2) of this section, the Board may, at its option, stay further proceedings pending issuance of a final decision by the contracting officer within such period of time as determined by the Board.</P> <P>(4) <E T="03">Request for final decision.</E> In lieu of filing a notice of appeal under paragraph(a)(2) of this section, the contractor, in the event of undue delay or refusal on the part of the contracting officer, may request that the Board direct the contracting officer to issue a decision in a specified period of time, as determined by the Board.</P> <P>(b) <E T="03">Rule 2; notice of appeal, contents of.</E> A notice of appeal should indicate that an appeal is being taken and should identify the contract by number, the department, agency, or bureau involved in the dispute, the decision from which the appeal is taken, and the amount in dispute, if known. The notice of appeal should be signed by the appellant (the contractor taking the appeal) or by the appellant's duly authorized representative or attorney. The complaint referred to in paragraph (f) of this section (Rule 6) may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint.</P> <P>(c) <E T="03">Rule 3; docketing of appeals.</E> When a notice of apppeal in any form has been received by the Board, it shall be docketed promptly. Notice in writing shall be given to the appellant with a copy of §§ 1.780 through 1.783 and to the contracting officer.</P> <P>(d) <E T="03">Rule 4; preparation, content, organization, forwarding, and status of appeal file</E>—(1) <E T="03">Duties of contracting officer.</E> Within 30 days of receipt of notice that an appeal has been filed, the contracting officer shall assemble and transmit to the Board through the Office of General Counsel an appeal file consisting of all documents pertinent to the appeal, including:</P> <P>(i) The decision from which the appeal is taken;</P> <P>(ii) The contract, including specifications and pertinent amendements, plans, and drawings;</P> <P>(iii) All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;</P> <P>(iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and</P> <P>(v) Any additional information considered relevant to the appeal.</P> <FP>Within the same time above specified, the Office of General Counsel shall furnish the appellant a copy of each document transmitted to the Board, except those in paragraph (d)(1)(ii) of this section. As to the latter, a list furnished appellant indicating specific contractual documents transmitted will suffice.</FP> <P>(2) <E T="03">Duties of the appellant.</E> Within 30 days after receipt of a copy of the appeal file assembled by the contracting officer, the appellant shall transmit to the Board any documents not contained therein which are considered to be relevant to the appeal, and shall furnish two copies of such documents to the government trial attorney.</P> <P>(3) <E T="03">Organization of appeal file.</E> Documents in the appeal file may be originals or legible facsimiles or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.</P> <P>(4) <E T="03">Lengthy documents.</E> Upon request by either party the Board may waive the requirement to furnish to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when it would be burdensome to do so. At the time a party files with the Board a document as to which such a waiver has been granted the party shall notify the other party that the document or a copy thereof is available for inspection at the office of the Board or of the party filing same.</P> <P>(5) <E T="03">Status of documents in appeal file.</E> Documents contained in the appeal file are considered, without further action by the parties, as part of the record upon which the Board will render its decision. However, a party may object, for reasons stated, to consideration of a particular document or documents reasonably in advance of hearing or, if there is no hearing, of settling the <PRTPAGE P="93"/>record. If such objection is made the Board shall remove the document or documents from the appeal file and permit the party offering the document to move its admission as evidence in accordance with paragraphs (m) and (t) of this section (Rules 13 and 20).</P> <P>(6) <E T="03">Dispensing with appeal file requirements.</E> Notwithstanding the provisions of paragraph (d)(1) through (5) of this section, the filing of the documents in paragraph (d)(1) and (2) of this section may be dispensed with by the Board either upon request of the appellant in the notice of appeal or thereafter upon stipulation of the parties.</P> <P>(e) <E T="03">Rule 5; dismissal for lack of jurisdiction.</E> Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing on the motion shall be afforded on application of either party. However, the Board may defer its decision on the motion pending hearing on both the merits and the motion. The Board shall have the right at any time and on its own initiative to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon.</P> <P>(f) <E T="03">Rule 6; pleadings and motions</E>—(1) <E T="03">Appellant.</E> Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise, and direct statements of each of its claims. Appellant shall also set forth the basis, with appropriate reference to contract provisions, of each claim and the dollar amount claimed, to the extent known. This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form is required. Upon receipt of the complaint, the Board shall serve a copy of it upon the Government. Should the complaint not be received within 30 days, appellant's claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth its complaint and the Government shall be so notified.</P> <P>(2) <E T="03">Government.</E> Within 30 days from receipt of the complaint, or the aforesaid notice from the Board, the Government shall prepare and file with the Board an original and two copies of an answer thereto. The answer shall set forth simple, concise, and direct statements of the Government's defenses to each claim asserted by appellant, including any affirmative defenses available. Upon receipt of the answer, the Board shall serve a copy upon appellant. Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified.</P> <P>(3) <E T="03">Motions.</E> The Board may entertain and rule upon appropriate motions.</P> <P>(g) <E T="03">Rule 7; amendments of pleadings or record</E>—(1) <E T="03">More definite statement and reply.</E> The Board, upon its own initiative or upon application by a party, may order a party to make a more definite statement of the complaint or answer, or to reply to an answer.</P> <P>(2) <E T="03">Amendments.</E> The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend its pleadings upon conditions fair to both parties. When issues within the proper scope of the appeal, but not raised by the pleadings, are tried by express or implied consent of the parties, or by permission of the Board, they shall be treated in all respects as if they had been raised therein. In such instances, motions to amend the pleadings to conform to the proof may be entered, but are not required. If evidence is objected to at a hearing on the ground that it is not within the issues raised by the pleadings, it may be admitted within the proper scope of the appeal, provided, however, that the objecting party may be granted a continuance if necessary to enable that party to meet such evidence.</P> <P>(h) <E T="03">Rule 8; hearing election.</E> After filing of the Government's answer or notice from the Board that it has entered a general denial on behalf of the Government, each party shall advise whether it elects a hearing, as prescribed in paragraphs (q) through (y) of this section (Rules 17 through 25), or whether it elects to submit its case on the record without a hearing, as prescribed in paragraph (k) of this section (Rule 11).</P> <P>(i) <E T="03">Rule 9; prehearing briefs.</E> Based on an examination of the pleadings, and its determination of whether the arguments and authorities addressed to the <PRTPAGE P="94"/>issues are adequately set forth therein, the Board may, in its discretion, require the parties to submit prehearing briefs in any case in which a hearing has been elected pursuant to paragraph (h) of this section (Rule 8). If the Board does not require prehearing briefs, either party may, upon appropriate and sufficient notice to the other party, furnish a prehearing brief to the Board. In any case where a prehearing brief is submitted, it shall be filed with the Board at least 15 days prior to the date set for hearing, and a copy simultaneously furnished to the other party.</P> <P>(j) <E T="03">Rule 10; prehearing or presubmission conference.</E> (1) Whether the case is to be submitted pursuant to paragraph (k) of this section (Rule 11), or heard pursuant to paragraphs (q) through (y) of this section (Rules 17 through 25), the Board may, upon its own initiative, or upon the application of either party, arrange a telephone conference or require the parties to appear before an Administrative Judge or examiner of the Board for a conference to consider:</P> <P>(i) Simplification, clarification, or severence of the issues;</P> <P>(ii) The possibility of obtaining stipulations, admissions, agreements, and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;</P> <P>(iii) Agreements and rulings to facilitate discovery;</P> <P>(iv) Limitation of the number of expert witnesses, or avoidance of similar cumulative evidence;</P> <P>(v) The possibility of agreement disposing of any or all of the issues in dispute; and</P> <P>(vi) Such other matters as may aid in the disposition of the appeal.</P> <P>(2) The Administrative Judge or examiner of the Board shall make such rulings and orders as may be appropriate to achieve settlement by agreement of the parties or to aid in the disposition of the appeal. The results of pretrial conferences, including any rulings and orders, shall be reduced to writing by the Administrative Judge or examiner and this writing shall thereafter constitute a part of the record.</P> <P>(k) <E T="03">Rule 11; submission without a hearing.</E> Either party may elect to waive a hearing and submit its case upon the record as settled pursuant to paragraph (m) of this section (Rule 13). Submission of a case without hearing does not relieve the parties from the necessity of proving the facts supporting their allegations or defenses. In accordance with paragraph (m) of this section (Rule 13), affidavits, depositions, admissions, answers to interrogatories, and stipulations may be employed to supplement other documentary evidence in the record. The Board may permit such submissions to be supplemented by oral argument (transcribed, if requested), and by briefs filed in accordance with paragraph (w) of this section (Rule 23).</P> <P>(l) <E T="03">Rule 12; optional small claims (expedited) and accelerated procedures.</E> These procedures are available solely at the election of the appellant.</P> <P>(1) 12.1<E T="03">Elections to utilize small claims (expedited) and accelerated procedures.</E> (i) In appeals where the amount in dispute is $50,000 or less, the appellant may elect to have the appeal processed under a small claims (expedited) procedure requiring decision of the appeal, whenever possible, within 120 days after the Board receives written notice of the appellant's election. The details of this procedure appear in paragraph (1)(2) of this section (rule 12). An appellant may elect the accelerated procedure set forth in paragraph (l)(3) of this section (Rule 12) in any appeal eligible for small claims (expedited) procedure.</P> <P>(ii) In appeals where the amount in dispute is $100,000 or less, the appellant may elect to have the appeal processed under an accelerated procedure requiring decision of the appeal, whenever possible, within 180 days after the Board receives written notice of the appellant's election. The details of this procedure appear in paragraph (l)(3) of this section (Rule 12).</P> <P>(iii) The appellant's election of either the small claims (expedited) procedure or the accelerated procedure may be made by written notice within 60 days after receipt of notice of docketing the appeal unless such period is extended by the Board for good cause. The election may not be withdrawn except with permission of the Board and for good cause.<PRTPAGE P="95"/> </P> <P>(iv) In deciding whether the small claims (expedited) procedure or the accelerated procedure is applicable to a given appeal, the Board shall determine the amount in dispute.</P> <P>(2) 12.2<E T="03">The small claims (expedited) procedure.</E> (i) In cases proceeding under the small claims (expedited) procedure, the following time periods shall apply:</P> <P>(A) Within 10 days from the Government's first receipt from either the appellant or the Board of a copy of the appellant's notice of election of the small claims (expedited) procedure, the Government shall send the Board a copy of the contract, the contracting officer's final decision, and the appellant's claim letter or letters, if any; remaining documents required under paragraph (d) of this section (Rule 4) shall be submitted in accordance with times specified in that rule unless the Board otherwise directs;</P> <P>(B) Within 15 days after the Board has acknowledged receipt of appellant's notice of election, the assigned Administrative Judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties: (<E T="03">1</E>) Identify and simplify the issues; (<E T="03">2</E>) establish a simplified procedure appropriate to the particular appeal involved; (<E T="03">3</E>) determine whether either party wants a hearing and, if so, fix a time and place therefor; (<E T="03">4</E>) require the Government to furnish all the additional documents relevant to the appeal; and (<E T="03">5</E>) establish an expedited schedule for resolution of the appeal.</P> <P>(ii) Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the requirement to conduct the hearing on the date scheduled or, if no hearing is scheduled, to close the record on a date that will allow decisions within the 120-day limit. The Board, in its discretion, may impose shortened time periods for any actions prescribed or allowed under this section 1.783, as necessary to enable the Board to decide the appeal within the 120-day limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.</P> <P>(iii) Written decisions by the Board in cases processed under the small claims (expedited) procedure will be brief and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single Administrative Judge. If there has been a hearing, the Administrative Judge presiding at the hearing may, in the judge's discretion, at the conclusion of the hearing and after entertaining such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal. Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the starting date for the period for filing a motion for reconsideration under paragraph (cc) of this section (Rule 29).</P> <P>(iv) Decisions under this procedure shall have no value as precedent and, in the absence of fraud, shall be final and conclusive and may not be appealed or set aside.</P> <P>(3) 12.3<E T="03">The accelerated procedure.</E> (i) In cases proceeding under the accelerated procedure, the parties are encouraged, to the extent possible consistent with adequate presentation of their factual and legal positions, to waive pleadings, discovery, and briefs. Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the requirement to conduct the hearing on the date scheduled or, if no hearing is scheduled, to close the record on a date that will allow decision within the 180-day limit. The Board, in its discretion, may shorten time periods prescribed or allowed under this §-1.783, as necessary to enable the Board to decide the appeal within 180 days after the Board has received the appellant's notice of election of the accelerated procedure, and may reserve 30 days for preparation of the decision.</P> <P>(ii) Written decisions by the Board in cases processed under the accelerated procedure will normally be brief and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single Administrative Judge with the concurrence of the Chair, Vice Chair, or other designated Administrative Judge, or by a <PRTPAGE P="96"/>majority among these two and an additional designated member in case of disagreement. Alternatively, in cases where the amount in dispute is $10,000 or less as to which the accelerated procedure has been elected and in which there has been a hearing, the single Administrative Judge presiding at the hearing may, with the concurrence of both parties, at the conclusion of the hearing and after entertaining such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal. Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes, and to establish the starting date for the period for filing a motion for reconsideration under paragraph (cc) of this section (Rule 29).</P> <P>(4) 12.4<E T="03">Motions for reconsideration in cases under paragraph (l) of this section (Rule 12).</E> Motions for reconsideration of cases decided under either the small claims (expedited) procedure or the accelerated need not be decided within the original 120-day or 180-day limits, but all such motions shall be processed and decided rapidly so as to fulfill the intent of paragraph (l) of this section (Rule 12).</P> <P>(m) <E T="03">Rule 13; settling the record.</E> (1) The record upon which the Board's decision will be rendered consists of the documents furnished under paragraphs (d) and (l) of this section (Rules 4 and 12), to the extent admitted in evidence, and the following items, if any: pleadings prehearing conference memoranda or orders, prehearing briefs, depositions or interrogatories received in evidence, admissions, stipulations, transcripts of conferences and hearings, hearing exhibits, posthearing briefs, and documents which the Board has specifically designated be made a part of the record. The record will, at all reasonable times, be available for inspection by the parties at the office of the Board.</P> <P>(2) Except as the Board may otherwise order in its discretion, no evidence shall be received after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.</P> <P>(3) The weight to be attached to any evidence of record will rest within the sound discretion of the Board. The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.</P> <P>(n) <E T="03">Rule 14; discovery—depositions—</E>(1) <E T="03">General policy and protective orders.</E> The parties are encouraged to engage in voluntary discovery procedures. In connection with any deposition or other discovery procedure, the Board may make any order required to protect a party or person from annoyance, embarrassment, or undue burden or expense. Such orders may include limitations on the scope, method, time and place for discovery, and provision for protecting the secrecy of confidential information or documents.</P> <P>(2) <E T="03">When depositions permitted.</E> After an appeal has been docketed and complaint filed, the parties may agree to, or the Board may order, upon application of either party, the taking of testimony of any person by deposition upon oral examination or written interrogatories before any officer authorized to administer oaths at the place of examination, for use as evidence or for purpose of discovery. The application for order shall specify whether the purpose of the deposition is discovery or for use as evidence.</P> <P>(3) <E T="03">Orders on depositions.</E> The time, place, and manner of taking depositions shall be as agreed upon by the parties or, failing such agreement, governed by order of the Board.</P> <P>(4) <E T="03">Use as evidence.</E> No testimony taken by deposition shall be considered as part of the evidence in the hearing of an appeal until such testimony is offered and received in evidence at such hearing. It will not ordinarily be received in evidence if the deponent is present and can testify at the hearing. In such instances, however, the deposition may be used to contradict or impeach the testimony of the deponent given at the hearing. In cases submitted on the record, the Board may, in its discretion, receive depositions to supplement the record.<PRTPAGE P="97"/> </P> <P>(5) <E T="03">Expenses.</E> Each party shall bear its own expenses associated with the taking of any deposition.</P> <P>(6) <E T="03">Subpoenas.</E> Where appropriate, a party may request the issuance of a subpoena under the provisions of paragraph (u) of this section (Rule 21).</P> <P>(o) <E T="03">Rule 15; interrogatories to parties, admissions of fact, and production and inspection of documents.</E> After an appeal has been docketed and complaint filed with the Board, a party may serve on the other party: (1) Written interrogatories to be answered separately in writing, signed under oath and answered or objected to within 30 days after service; (2) a request for the admission of specified facts and/or the authenticity of any documents, to be answered or objected to within 30 days after service, the factual statements and the authenticity of the documents to be deemed admitted upon failure of a party to respond to the request; and (3) a request for the production, inspection, and copying of any documents or objects, not privileged, which reasonably may lead to the discovery of admissible evidence, to be answered or objected to within 30 days after service. Any discovery engaged in under this rule shall be subject to the provisions of paragraph (n)(1) of this section (Rule 14(A)) with respect to general policy and protective orders, and paragraph (ii) of this section (Rule 35) with respect to sanctions.</P> <P>(p) <E T="03">Rule 16; service of papers other than subpoenas.</E> Papers shall be served personally or by mail, addressed to the party upon whom service is to be made. Copies of complaints, answers, replies, and briefs shall be filed directly with the Board for service. The party filing any other paper with the Board shall send a copy thereof to the opposing party, noting on the paper filed with the Board that a copy has been so furnished. Subpoenas shall be served as provided in paragraph (u) of this section (Rule 21).</P> <P>(q) <E T="03">Rule 17; hearings, where and when held.</E> Hearings will be held at such places determined by the Board to best serve the interests of the parties and the Board. Hearings will be scheduled at the discretion of the Board with due consideration to the regular order of appeals, requirements of paragraph (l) of this section (Rule 12), and other pertinent factors. On request or motion by either party and for good cause, the Board may, in its discretion, adjust the date of a hearing.</P> <P>(r) <E T="03">Rule 18; notice of hearings.</E> The parties shall be given at least 15 days notice of the time and place set for hearings. In scheduling hearings, the Board will consider the desires of the parties and the requirement for just and inexpensive determination of appeals without unnecessary delay. Notices of hearing shall be promptly acknowledged by the parties.</P> <P>(s) <E T="03">Rule 19; unexcused absence of a party.</E> The unexcused absence of a party at the time and place set for hearing will not be occasion for delay. In the event of such absence, the hearing will proceed and the case will be regarded as submitted by the absent party as provided in paragraph (k) of this section (Rule 11).</P> <P>(t) <E T="03">Rule 20; hearings, nature of and examination of witnesses—</E>(1) <E T="03">Nature of hearings.</E> Hearings shall be as informal as may be reasonable and appropriate under the circumstances. Appellant and respondent may offer such relevant evidence as they deem appropriate and as would be admissible under the Federal Rules of Evidence, subject, however, to the sound discretion of the presiding Administrative Judge or examiner in supervising the extent and manner of presentation of such evidence. In general, admissibility will depend on relevancy and materiality. Evidence which may not be admissible under the Federal Rules of Evidence may be admitted in the discretion of the presiding Administrative Judge or examiner. The weight to be attached to evidence presented in any particular form will be within the discretion of the Board. Stipulations of fact agreed upon by the parties may be regarded and used as evidence at the hearing. The parties may stipulate the testimony that would be given by a witness if the witness were present. The Board may in any case require evidence in addition to that offered by the parties.</P> <P>(2) <E T="03">Examination of witnesses.</E> Witnesses before the Board will be examined orally under oath or affirmation, unless the presiding Administrative Judge or examiner shall otherwise order. If the <PRTPAGE P="98"/>testimony of a witness is not given under oath, the Board may advise the witness that his or her statements may be subject to the provisions of 18 U.S.C. 287 and 1001, and any other provision of law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any department or agency thereof.</P> <P>(u) <E T="03">Rule 21; subpoenas—</E>(1) <E T="03">General.</E> Upon written request of either party filed with the Board, or on the Board's own initiative, the Administrative Judge to whom a case is assigned or who is otherwise designated by the Chair may issue a subpoena requiring:</P> <P>(i) Testimony at a deposition—the deposing of a witness in the city or county where the witness resides or is employed or transacts business in person, or at another location convenient for the witness that is specifically determined by the Board;</P> <P>(ii) Testimony at a hearing—the attendance of a witness for the purpose of taking testimony at a hearing; and</P> <P>(iii) Production of books and papers—in addition to paragraph (u)(1)(i) or (ii) of this section, the production by the witness at the deposition or hearing of books and papers designated in the subpoena.</P> <P>(2) <E T="03">Voluntary cooperation.</E> Each party is expected (i) to cooperate and make available witnesses and evidence under its control as requested by the other party, without issuance of a subpoena, and (ii) to secure voluntary attendance of desired third-party witnesses and production of desired third-party books, papers, documents, or tangible things whenever possible.</P> <P>(3) <E T="03">Requests for subpoenas—</E>(i) A request for a subpoena shall normally be filed at least:</P> <P>(A) 15 days before a scheduled deposition where the attendance of a witness at a deposition is sought;</P> <P>(B) 30 days before a scheduled hearing where the attendance of a witness at a hearing is sought.</P> <FP>In its discretion, the Board may honor requests for subpoenas not made within these time limitations.</FP> <P>(ii) A request for a subpoena shall state the reasonable scope and general relevance to the case of the testimony and of any books and papers sought.</P> <P>(4) <E T="03">Requests to quash or modify.</E> Upon written request by the person subpoenaed or by a party, made within 10 days after service but in any event not later than the time specified in the subpoena for compliance, the Board may (i) quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown, or (ii) require the person in whose behalf the subpoena was issued to advance the reasonable cost of producing subpoenaed books and papers. Where circumstances require, the Board may act upon such a request at any time after a copy has been served upon the opposing party.</P> <P>(5) <E T="03">Form; issuance—</E>(i) Every subpoena shall state the name of the Board and the title of the appeal, and shall command each person to whom it is directed to attend and give testimony and, if appropriate, to produce specified books and papers at a time and place therein specified. In issuing a subpoena to a requesting party, the Administrative Judge shall sign the subpoena and may, in his or her discretion, enter the name of the witness and otherwise leave it blank. The party to whom the subpoena is issued shall complete the subpoena before service.</P> <P>(ii) Where the witness is located in a foreign country, a letter rogatory or subpoena may be issued and served under the circumstances and in the manner provided in 28 U.S.C. 1781-1784.</P> <P>(6) <E T="03">Service.</E> (i) The party requesting issuance of a subpoena shall arrange for service.</P> <P>(ii) A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place. A subpoena may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage provided by 28 U.S.C. 1821 or other applicable law; however, where the subpoena is issued on behalf of the Government, money payments need not be tendered in advance of attendance.<PRTPAGE P="99"/> </P> <P>(iii) The party at whose request a subpoena is issued shall be responsible for the payment of fees and mileage of the witness and of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Board as a sufficient ground for striking the testimony of the witness and the books or papers the witness has produced.</P> <P>(7) <E T="03">Contumacy or refusal to obey a subpoena.</E> In case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of a United States District Court, the Board will apply to the Court through the Attorney General of the United States for an order requiring the person to appear before the Board or a member thereof to give testimony or produce evidence or both. Any failure of any such person to obey the order of the Court may be punished by the Court as a contempt thereof.</P> <P>(v) <E T="03">Rule 22; copies of papers.</E> When books, records, papers, or documents have been received in evidence, true copies thereof, or of such part thereof as may be material or relevant, may be substituted therefor, during the hearing or at the conclusion thereof.</P> <P>(w) <E T="03">Rule 23; posthearing briefs.</E> Posthearing briefs may be submitted upon such terms as may be agreed to by the parties and the presiding Administrative Judge or examiner at the conclusion of the hearing.</P> <P>(x) <E T="03">Rule 24; transcript of proceedings.</E> Testimony and argument at hearings shall be reported verbatim, unless the Board otherwise orders. Waiver of transcript may be especially suitable for hearings under paragraph (l)(2) of this section (Rule 12.2). Transcripts or copies of the proceedings shall be supplied to the parties at the actual cost of duplication.</P> <P>(y) <E T="03">Rule 25; withdrawal of exhibits.</E> After a decision has become final, the Board may, upon request and after notice to the other party, in its discretion, permit the withdrawal of original exhibits, or any part thereof, by the party entitled thereto. The substitution of true copies of exhibits or any part thereof may be required by the Board in its discretion as a condition of granting permission for such withdrawal.</P> <P>(z) <E T="03">Rule 26; representation—the appellant.</E> An individual appellant may appear before the Board in person; a corporation by one of its officers; and a partnership or joint venture by one of its members; or any of these by an attorney at law duly licensed in any State, commonwealth, territory, the District of Columbia, or in a foreign country. An attorney representing an appellant shall file a written notice of appearance with the Board.</P> <P>(aa) <E T="03">Rule 27; representation—the government.</E> Government counsel may, in accordance with their authority, represent the interests of the Government before the Board. They shall file notices of appearance with the Board, and notice thereof will be given appellant or appellant's attorney in the form specified by the Board from time to time.</P> <P>(bb) <E T="03">Rule 28; decisions.</E> Decisions of the Board will be made in writing and authenticated copies of the decision will be forwarded simultaneously to both parties. The rules of the Board and all final orders and decisions (except those required for good cause to be held confidential and not cited as precedents) shall be open for public inspection at the office of the Board in Washington, DC. Decisions of the Board will be made solely upon the record, as described in paragraph (m) of this section (Rule 13).</P> <P>(cc) <E T="03">Rule 29; motions for reconsideration.</E> A motion for reconsideration may be filed by either party. It shall set forth specifically the grounds relied upon to support the motion. The motion shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion.</P> <P>(dd) <E T="03">Rule 30; suspension and dismissal without prejudice.</E> Whenever appellant and the Government counsel are in agreement as to disposition of the controversy, the Board may suspend or terminate further processing of the appeal. If, thereafter, the Board is advised by either party that the controversy has not been disposed of by agreement, the case shall be restored to the Board's calendar without loss of position. In other cases where the <PRTPAGE P="100"/>Board is unable to proceed with disposition for reasons not within the control of the Board, an appeal may be placed in a suspense status. Where the suspension has continued, or may continue, for an inordinate length of time, the Board, in its discretion, may dismiss such appeal from its docket without prejudice to restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed to be with prejudice.</P> <P>(ee) <E T="03">Rule 31; dismissal or default for failure to prosecute or defend.</E> Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may, in the case of a default by the appellant, issue an order to show cause why the appeal should not be dismissed or, in the case of a default by the Government, issue an order to show cause why the Board should not act thereon pursuant to paragraph (ii) of this section (Rule 35). If good cause is not shown, the Board may take appropriate action.</P> <P>(ff) <E T="03">Rule 32; remand from court.</E> Whenever any court remands a case to the Board for further proceedings, each of the parties shall, within 20 days of such remand, submit a report to the Board recommending procedures to be followed so as to comply with the court's order. The Board shall consider the reports and enter special orders governing the handling of the remanded case. To the extent the court's directive and time limitations permit, such orders shall conform to these rules.</P> <P>(gg) <E T="03">Rule 33; time, computation, and extensions.</E> (1) Where possible, procedural actions should be taken in less time than the maximum time allowed. Where appropriate and justified, however, extensions of time will be granted. All requests for extensions of time shall be in writing.</P> <P>(2) In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.</P> <P>(hh) <E T="03">Rule 34; ex parte communications.</E> No member of the Board or of the Board's staff shall entertain, nor shall any person directly or indirectly involved in an appeal submit to the Board or the Board's staff, off the record, any evidence, explanation, analysis, or advice, whether written or oral, regarding any matter at issue in an appeal. This provision does not apply to consultation among Board members nor to ex parte communications concerning the Board's administrative functions or procedures.</P> <P>(ii) <E T="03">Rule 35; sanctions.</E> If any party fails or refuses to obey an order issued by the Board, the Board may make such order as it considers necessary to the just and expeditious conduct of the appeal.</P> <P>(jj) <E T="03">Rule 36; effective date and applicability.</E> These rules shall apply (1) mandatorily, to all appeals relating to contracts entered into on or after March 1, 1979, and (2) at the contractor's election, to appeals relating to earlier contracts, with respect to claims pending before the contracting officer on March 1, 1979 or initiated thereafter.</P> <CITA>[47 FR 12340, Mar. 23, 1982, as amended at 60 FR 48029, Sept. 18, 1995]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Part-Time Career Employment Program</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>44 FR 55172, Sept. 25, 1979, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.891</SECTNO> <SUBJECT>Purpose of program.</SUBJECT> <P>Many individuals in society possess great productive potential which goes unrealized because they cannot meet the requirements of a standard workweek. Permanent part-time employment also provides benefits to other individuals in a variety of ways, such as providing older individuals with a gradual transition into retirement, providing employment opportunities to handicapped individuals or others who requires a reduced workweek, providing parents opportunities to balance family responsibilities with the need for additional income, and assisting <PRTPAGE P="101"/>students who must finance their own education or vocational training. In view of this, the Department of Veterans Affairs will operate a part-time career employment program, consistent with the needs of its beneficiaries and its responsibilities.</P> <SECAUTH>(Authority: 5 U.S.C. 3401 note)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.892</SECTNO> <SUBJECT>Review of positions.</SUBJECT> <P>Positions becoming vacant, unless excepted as provided by § 1.897, will be reviewed to determine the feasibility of converting them to part-time. Among the criteria which may be used when conducting this review are:</P> <P>(a) Mission requirements.</P> <P>(b) Workload.</P> <P>(c) Employment ceilings and budgetary considerations.</P> <P>(d) Availability of qualified applicants willing to work part time.</P> <P>(e) Other criteria based on local needs and circumstances.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.893</SECTNO> <SUBJECT>Establishing and converting part-time positions.</SUBJECT> <P>Position management and other internal reviews may indicate that positions may be either converted from full-time or initially established as part-time positions. Criteria listed in § 1.892 may be used during these reviews. If a decision is made to convert to or to establish a part-time position, regular position management and classification procedures will be followed.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.894</SECTNO> <SUBJECT>Annual goals and timetables.</SUBJECT> <P>An departmentwide plan for promoting part-time employment opportunities will be developed annually. This plan will establish annual goals and set interim and final deadlines for achieving these goals. This plan will be applicable throughout the agency, but may be supplemented by field facilities.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.895</SECTNO> <SUBJECT>Review and evaluation.</SUBJECT> <P>The part-time career employment program will be reviewed through regular employment reports to determine levels of part-time employment. This program will also be designated an item of special interest to be reviewed during personnel management reviews.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> <CITA>[61 FR 38571, July 25, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.896</SECTNO> <SUBJECT>Publicizing vacancies.</SUBJECT> <P>When applicants from outside the Federal service are desired, part-time vacancies may be publicized through various recruiting means, such as:</P> <P>(a) Federal Job Information Centers.</P> <P>(b) State Employment offices.</P> <P>(c) VA Recruiting Bulletins.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.897</SECTNO> <SUBJECT>Exceptions.</SUBJECT> <P>The Secretary of Veterans Affairs, or designees, may except positions from inclusion in this program as necessary to carry out the mission of the Department.</P> <SECAUTH>(Authority: 5 U.S.C. 3402)</SECAUTH> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Collection, Compromise, Suspension or Termination of Collection Effort, and Referral of Civil Claims for Money or Property</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38 U.S.C. 501.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 2613, Feb. 8, 1967, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.900</SECTNO> <SUBJECT>Prescription of standards.</SUBJECT> <P>The instructions contained in §§ 1.900 through 1.954 are issued pursuant to the Federal Claims Collection Act (Pub. L. 89-508 and 97-365) and the joint regulations thereunder of the Comptroller General of the United States and the Attorney General of the United States, title 4, chapter II, Code of Federal Regulations. Except as provided in § 1.903, they constitute standards governing the Department of Veterans Affairs collection, compromise, suspension or termination of collection effort, and the referral to the General Accounting Office and the Department of Justice for litigation of civil claims by the Department of Veterans Affairs for money or property.</P> <CITA>[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42104, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="102"/> <SECTNO>§ 1.901</SECTNO> <SUBJECT>Omissions not a defense.</SUBJECT> <P>The standards set forth in §§ 1.900 through 1.954 shall apply to VA handling of civil claims for money and property but the failure of the agency to comply with any provision of the standards shall not be available as a defense for any debtor.</P> <CITA>[52 FR 42105, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.902</SECTNO> <SUBJECT>Fraud, antitrust and tax claims excluded.</SUBJECT> <P>(a) The standards set forth in §§ 1.900 through 1.954 do not apply to the handling of any claim as to which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim, or to any claim based in whole or in part on violation of the antitrust laws. Only the Department of Justice has authority to compromise, suspend, or terminate collection action on such claims.</P> <P>(b) Upon identification of a claim of any of the types described in paragraph (a) of this section (an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim), VA shall refer the matter promptly to the Department of Justice. At its discretion, the Department of Justice may determine that no action is warranted and return the claim to VA for further handling in accordance with §§ 1.900 through 1.954.</P> <P>(c) VA has no authority to consider or compromise Federal tax claims, as to which differing exemptions, administrative considerations, enforcement considerations, and statutes apply.</P> <P>(d) Sections 1.900 through 1.954 do not apply to claims between Federal agencies. VA shall attempt to resolve interagency claims by negotiation. Any unresolved claims shall be referred to the General Accounting Office (GAO) for final resolution.</P> <SECAUTH>(Authority: 37 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42105, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.903</SECTNO> <SUBJECT>Settlement, waiver, or compromise under other statutory or regulatory authority.</SUBJECT> <P>Nothing in §§ 1.900 through 1.954 is intended to preclude VA settlement, waiver, or compromise of claims under statutes other than the Federal Claims Collection Act. See, e.g. 38 U.S.C. 3720(a)(4) and (5) and 5302(a) and 42 U.S.C. 2651-2653. Nor are §§ 1.900 through 1.954 intended to preclude Department of Veterans Affairs settlement, waiver, or compromise of claims under § 17.48(f) of this chapter for the cost of medical or hospital care furnished pursuant to § 17.47 (c)(1) or (d) of this chapter to persons who are entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof by reason of “workmen's compensation” or “employer's liability” statutes, State or Federal; right to maintenance and cure in admiralty; or statutory or other relationships with third parties, giving rise to liability for damages because of negligence or other legal wrong.</P> <CITA>[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42105, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.904</SECTNO> <SUBJECT>Conversion claims.</SUBJECT> <P>The instructions contained in §§ 1.900 through 1.954 are directed primarily to the recovery of money on behalf of the Government and the circumstances in which the Department of Veterans Affairs may dispose of claims for less than the full amount. In addition, the Department of Veterans Affairs will assert demands for the return of specific property or the payment of its value in cases of conversion.</P> </SECTION> <SECTION> <SECTNO>§ 1.905</SECTNO> <SUBJECT>Subdivision of claims not authorized.</SUBJECT> <P>Claims shall not be subdivided in order to avoid the monetary ceiling established by 31 U.S.C. 3711(a)(2). A debtor's liability arising from a particular transaction or contract shall be considered as a single claim in determining whether the claim is one of less than $20,000, exclusive of interest and administrative costs, either for purposes of suspension or termination of collection action (§§ 1.940 through 1.943) or for determining the applicability of the $20,000 limit with respect to compromise (§§ 1.930 through 1.938).</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42105, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="103"/> <SECTNO>§ 1.906</SECTNO> <SUBJECT>Required administrative proceedings.</SUBJECT> <P>Nothing contained in §§ 1.900 through 1.954 is intended to foreclose the right of any debtor to appeal or administrative hearing provided by statute, contract, or applicable Department of Veterans Affairs Regulation.</P> </SECTION> <SECTION> <SECTNO>§ 1.907</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) For the purpose of §§ 1.900 through 1.954, the terms <E T="03">claims</E> and <E T="03">debt</E> are synonymous and interchangeable. They refer to any amount of money or property which has been determined by an appropriate official of VA to be owed to the United States by any person, organization or entity, except another Federal agency.</P> <P>(b) A debt is considered delinquent if it has not been paid by the date specified in the initial written notice of indebtedness or applicable contractual agreement, unless other satisfactory payment arrangements have been previously made. A debt is also considered delinquent if the debtor fails to satisfy obligations under a repayment agreement with VA.</P> <P>(c) As used in §§ 1.900 through 1.954, <E T="03">referral for litigation</E> means referral to the Department of Justice for appropriate legal actions, except in those specified instances where a case is referred to VA Regional Counsel for legal action.</P> <SECAUTH>(Authority: 31 U.S.C. 3701, 3711)</SECAUTH> <CITA>[52 FR 42105, Nov. 3, 1987]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Collection of Claims</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.910 to 1.921 issued under 72 Stat. 1114; 38 U.S.C. 501.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 2613, Feb. 8, 1967, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.910</SECTNO> <SUBJECT>Aggressive collection action.</SUBJECT> <P>The Department of Veterans Affairs will take aggressive action, on a timely basis with effective followup, to collect all claims for money or property arising from its activities.</P> </SECTION> <SECTION> <SECTNO>§ 1.911</SECTNO> <SUBJECT>Collection of debts owed by reason of participation in a benefits program.</SUBJECT> <P>(a) <E T="03">Scope.</E> This section applies to the collection of debts resulting from an individual's participation in a benefits program administered by the Department of Veterans Affairs. It does not apply to the Department's other claims collection activities. (Note: School liability debts are governed by § 21.4009; financial institution debts are subject to chapter II, parts 209, 210, and 240 of title 31, Code of Federal Regulations; and other debts are governed by part 102 of title 4 of the Code of Federal Regulations.)</P> <P>(b) <E T="03">Written demands.</E> When the Department of Veterans Affairs has determined that a debt exists by reason of an administrative decision or by operation of law, the Department of Veterans Affairs shall promptly demand, in writing, payment of the debt. The Department of Veterans Affairs shall notify the debtor of his or her rights and remedies in connection with the debt and the consequences of failure to cooperate with collection efforts. Ordinarily, no more than three demand letters, at intervals of not more than thirty days, will be sent, but letters subsequent to the initial letter will not be necessary if:</P> <P>(1) The Secretary determines that further demand would be futile;</P> <P>(2) The debtor has indicated in writing that he or she does not intend to pay the debt;</P> <P>(3) Judicial action to protect the Government's interest is indicated under the circumstances; or</P> <P>(4) Collection by offset pursuant to § 1.912a can be made.</P> <P>(c) <E T="03">Rights and remedies.</E> Subject to limitations referred to in this paragraph, the debtor has the right to informally dispute the existence or amount of the debt, to request waiver of collection of the debt, to a hearing on the waiver request, and to appeal the Department of Veterans Affairs decision underlying the debt. These rights can be exercised separately or simultaneously. Except as provided in § 1.912a (collection by offset), the exercise of any of these rights will not stay any collection proceeding.</P> <P>(1) <E T="03">Informal dispute.</E> This means that the debtor writes to the Department of Veterans Affairs and questions whether he or she owes the debt or whether the amount is accurate. The Department of Veterans Affairs will, as expeditiously <PRTPAGE P="104"/>as possible, review the accuracy of the debt determination. If the resolution is adverse to the debtor, he or she may also request waiver of collection as indicated in paragraphs (c)(2) and (3) of this section.</P> <P>(2) <E T="03">Request for waiver; hearing on request.</E> The debtor has the right to request waiver of collection, in accordance with § 1.963 or § 1.964, and the right to a hearing on the request. Requests for waivers must be filed in writing. A waiver request must be filed within the time limit set forth in 38 U.S.C. 5302. If waiver is granted, in whole or in part, the debtor has a right to refund of amounts already collected up to the amount waived.</P> <P>(3) <E T="03">Appeal.</E> The debtor may appeal, in accordance with part 19 of this title, the decision underlying the debt.</P> <P>(d) <E T="03">Notification.</E> The Department of Veterans Affairs shall notify the debtor in writing of the following:</P> <P>(1) The exact amount of the debt;</P> <P>(2) The specific reasons for the debt, in simple and concise language;</P> <P>(3) The rights and remedies described in paragraph (c) of this section, including a brief explanation of the concept of, and requirements for, waiver;</P> <P>(4) That collection may be made by offset from current or future Department of Veterans Affairs benefits, subject to § 1.912a; and</P> <P>(5) That interest and administrative costs may be assessed, in accordance with § 1.919, as appropriate.</P> <P>(e) <E T="03">Sufficiency of notification.</E> Notification is sufficient when sent by ordinary mail directed to the debtor's last known address and not returned as undeliverable by postal authorities.</P> <P>(f) <E T="03">Further explanation.</E> Further explanation may be found for—</P> <P>(1) Appellate rights, in part 19 of this title;</P> <P>(2) Notification of any decision affecting the payment of benefits or granting relief, in § 3.103(e);</P> <P>(3) Right to appeal a waiver decision, in § 1.958;</P> <P>(4) Refund to a successful waiver applicant of money already collected, in § 1.967; and</P> <P>(5) The assessment of interest and administrative costs, in § 1.919.</P> <SECAUTH>(Authority: 38 U.S.C. 5302, 5314)</SECAUTH> <CITA>[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and amended at 52 FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.912</SECTNO> <SUBJECT>Collection by offset.</SUBJECT> <P>(a) <E T="03">Authority and scope.</E> In accordance with part 102 of title 4 of the Code of Federal Regulations, VA shall collect debts by administrative offset from any payments made by VA to an individual indebted to VA. This section does not pertain to offset from either current salary or from benefit payments, but does apply to offset from all other VA payments, including an employee's final salary check and lump-sum leave payment. Procedures for offset from benefit payments and current salary are found in § 1.912a and §§ 1.980 through 1.994. NOTE: VA cannot offset or refer for the purpose of offset, either under the authority of this section or under any other authority found in §§ 1.900 through 1.954 and §§ 1.980 through 1.984, any debt described in 38 U.S.C. 3726 unless the requirements set forth in that section have been met.</P> <P>(b) <E T="03">Notification.</E> Prior to initiation of administrative offset, if not provided in the initial notice of indebtedness, VA is required to provide the debtor with written notice of:</P> <P>(1) The nature and amount of the debt;</P> <P>(2) VA's intention to pursue collection by offset procedures from the specified VA payment, the date of commencement of offset, and the exact amount to be offset;</P> <P>(3) The opportunity to inspect and copy VA records pertaining to the debt;</P> <P>(4) The right to contest either the existence or amount of the debt or the proposed offset schedule, or if applicable, to request a waiver of collection of the debt, or to request a hearing on any of these matters;</P> <P>(5) That commencement of offset will begin, unless the debtor makes a written request for the administrative relief discussed in paragraph (b)(4) of this section within 30 days of the date of this notice; and</P> <P>(6) The oppportunity to enter into a written agreement with VA to repay the debt in lieu of offset.<PRTPAGE P="105"/> </P> <P>(c) <E T="03">Deferral of offset.</E> (1) If the debtor, within 30 days of the date of the notification required by paragraph (b) of this section, disputes in writing the existence or amount of the debt or the amount of the scheduled offset, offset shall not commence until the dispute is reviewed and a decision is rendered by VA adverse to the debtor.</P> <P>(2) If the debtor, within 30 days of the date of the required notification by VA, requests in writing the waiver of collection of the debt in accordance with § 1.963 or § 1.964, offset shall not commence until VA has made an initial decision to deny the waiver request.</P> <P>(3) If the debtor, within 30 days of the required notification by VA, requests in writing a hearing on the issues found in paragraphs (c)(1) and (2) of this section, offset shall not commence until a decision is rendered by VA on the issue which is the basis of the hearing.</P> <P>(d) <E T="03">Exceptions.</E> (1) Offset may commence prior to either resolution of a dispute or decision on a waiver request as discussed in paragraph (c) of this section, if collection of the debt would be jeopardized by deferral of offset. In such a case, notification pursuant to paragraph (b) of this section shall be made at the time offset begins or as soon thereafter as possible.</P> <P>(2) If the United States has obtained a judgment against the debtor, offset may commence without the notification required by paragraph (b) of this section. However, a waiver request filed in accordance with the time limits and other requirements of § 1.963 or § 1.964 will be considered, even if filed after a judgment has been obtained against the debtor. If waiver is granted, in whole or in part, refund of amounts already collected will be made in accordance with § 1.967.</P> <P>(e) <E T="03">Hearing.</E> (1) After a debtor requests a hearing, VA shall notify the debtor of the form of the hearing to be provided; i.e., whether the hearing will either be oral or paper. If an oral hearing is determined to be proper by the hearing official, the notice shall set forth the date, time, and location of the hearing. If the hearing is to be a paper review, the debtor shall be notified that he or she should submit his or her position and arguments in writing to the hearing official by a specified date, after which the record shall be closed. This date shall give the debtor reasonable time to submit this information.</P> <P>(2) Unless otherwise required by law, an oral hearing under this paragraph is not required to be a formal evidentiary type of hearing.</P> <P>(3) A debtor who requests a hearing shall be provided an oral hearing if VA determines that the matter cannot be resolved by review of documentary evidence. Whenever an issue of credibility or veracity is involved, an oral hearing will always be provided the debtor. For example, the credibility or veracity of a debtor is always an issue whenever the debtor requests a waiver of collection of the debt. Thus, a hearing held in conjunction with a waiver request will always be an oral hearing. If a determination is made to provide an oral hearing, the hearing official may offer the debtor the opportunity for a hearing by telephone conference call. If this offer is rejected or if the hearing official declines to offer a telephone conference call, the debtor shall be provided an oral hearing permitting the personal appearance of the debtor, his or her personal representative, and witnesses. Witnesses shall testify under oath or affirmation.</P> <P>(4) In all other cases where a debtor requests a hearing, a paper hearing shall be provided. The debtor shall be provided an opportunity to submit material for the record. A paper hearing shall consist of a review of the written evidence of record by the designated hearing official.</P> <P>(f) When collecting multiple debts by administrative offset, VA will apply the recovered amounts to those debts in accordance with the best interests of the United States, as determined by the facts and circumstances of the particular case, paying special attention to applicable statutes of limitation. In accordance with 4 CFR 102.3(b)(3), VA may not initiate offset to collect a debt more than 10 years after VA's right to <PRTPAGE P="106"/>collect the debt first accrued (with certain exceptions as explained in § 102.3(b)(3)).</P> <SECAUTH>(Authority: 31 U.S.C. 3716)</SECAUTH> <CITA>[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.912a</SECTNO> <SUBJECT>Collection by offset—from VA benefit payments.</SUBJECT> <P>(a) <E T="03">Authority and scope.</E> VA shall collect debts governed by § 1.911 of this part by offset against any current or future VA benefit payments to the debtor. Unless paragraphs (c) or (d) of this section apply, offset shall commence promptly after notification to the debtor as provided in paragraph (b) of this section. Certain military service debts shall be collected by offset against current or future compensation or pension benefit payments to the debtor under authority of 38 U.S.C. 5301(c), as provided in paragraph (e) of this section.</P> <P>(b) <E T="03">Notification.</E> Unless paragraph (d) of this section applies, offset shall not commence until the debtor has been notified in writing of the matters described in § 1.911a(c) and (d) and paragraph (c) of this section.</P> <P>(c) <E T="03">Deferral of offset.</E> (1) If the debtor, within thirty days of the date of the notification required by paragraph (b) of this section, disputes, in writing, the existence or amount of the debt in accordance with § 1.911a(c)(1), offset shall not commence until the dispute is reviewed as provided in § 1.911a(c)(1) and unless the resolution is adverse to the debtor.</P> <P>(2) If the debtor, within thirty days of the date of notification required by paragraph (b) of this section, requests, in writing, waiver of collection in accordance with § 1.963 or § 1.964, as applicable, offset shall not commence until the Department of Veterans Affairs has made an initial decision on waiver.</P> <P>(3) If the debtor, within thirty days of the notification required by paragraph (b) of this section, requests, in writing, a hearing on the waiver request, no decision shall be made on the waiver request until after the hearing has been held.</P> <P>(d) <E T="03">Exceptions.</E> Offset may commence prior to the resolution of a dispute or a decision on a waiver request if collection of the debt would be jeopardized by deferral of offset. In such case, notification pursuant to § 1.911a(d) shall be made at the time offset begins or as soon thereafter as possible. </P> <PARAUTH>(Authority: 38 U.S.C. 5314, Ch. 37)</PARAUTH> <P>(e) <E T="03">Offset of military service debts.</E> (1) In accordance with 38 U.S.C. 5301(c), VA shall collect by offset from any current or future compensation or pension benefits payable to a veteran under laws administered by VA, the uncollected portion of the amount of any indebtedness associated with the veteran's participation in a plan prescribed in subchapter I or II of 10 U.S.C. chapter 73.</P> <P>(2) Offsets of a veteran's compensation or pension benefit payments to recoup indebtedness to the military services as described in paragraph (e)(1) of this section shall only be made by VA when the military service owed the debt has:</P> <P>(i) Determined the amount of the indebtedness of the veteran;</P> <P>(ii) Certified to VA that due process in accordance with the procedures prescribed in 31 U.S.C. 3716 have been provided to the veteran; and</P> <P>(iii) Requested collection of the total debt amount due.</P> <P>(3) Offset from any compensation or pension benefits under the authority of 38 U.S.C. 5301(c) shall not exceed 15% of the net monthly compensation or pension benefit payment. The net monthly compensation or pension benefit payment is defined as the authorized monthly compensation or pension benefit payment less all current deductions.</P> <SECAUTH>(Authority: 38 U.S.C. 5301(c) and 5314)</SECAUTH> <CITA>[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57 FR 47263, Oct. 15, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.913</SECTNO> <SUBJECT>Personal interview with debtor.</SUBJECT> <P>The Department of Veterans Affairs will, to the extent feasible, undertake personal interviews whenever requested by debtors and in other cases having regard for the amounts involved and the proximity of agency representatives to the debtors.</P> </SECTION> <SECTION> <PRTPAGE P="107"/> <SECTNO>§ 1.914</SECTNO> <SUBJECT>Contact with debtor's employing agency.</SUBJECT> <P>When a debtor of the Department of Veterans Affairs is employed by another agency of the Federal Government or is a member of the Military establishment or the Coast Guard and collection by offset cannot be accomplished in accordance with 5 U.S.C. 5514, the Department of Veterans Affairs will contact the employing agency in an effort to arrange with the debtor for payment of the indebtedness by allotment or otherwise in accordance with section 206 of Executive Order 11222 of May 8, 1965 (30 FR 6469; 3 CFR 1965 Supp., pp. 130, 131).</P> </SECTION> <SECTION> <SECTNO>§ 1.915</SECTNO> <SUBJECT>Suspension or revocation of eligibility.</SUBJECT> <P>Demands on debtors who are lenders, contractors, brokers, or other participants in Department of Veterans Affairs programs will include notification that failure to pay their debts within a reasonable time may be cause for suspension or disqualification to the extent authorized by law. Nothing in this section is intended to be in derogation of the provisions of 38 U.S.C. 3704(b) and 3704(d) as implemented by §§ 36.4331 and 36.4361 of this chapter. The failure of any surety to honor its obligations in accordance with 6 U.S.C. 11 will be reported to the Treasury Department at once. Prompt and appropriate Department of Veterans Affairs action will be taken upon receipt of Treasury Department notification that a surety's certificate of authority to do business with the Federal Government has been revoked or forfeited.</P> </SECTION> <SECTION> <SECTNO>§ 1.916</SECTNO> <SUBJECT>Liquidation of collateral.</SUBJECT> <P>VA will exercise its rights to liquidate security or collateral and apply the proceeds to debts due it through use of a power of sale in the security instrument or a non-judicial foreclosure if the debtor fails to pay his or her debt, within a reasonable time after demand, unless the cost of disposing of the collateral will be disproportionate to its value or the particular circumstances require judicial foreclosure. VA must provide the debtor with reasonable notice of the sale, and an accounting of any surplus proceeds, as well as notice of any other procedures required by law or contract. Collection from other sources, including liquidation of security or collateral, is not a prerequisite to requiring payment by a surety or insurance company unless such action is expressly required by statute or contract.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42106, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.917</SECTNO> <SUBJECT>Collection in installments.</SUBJECT> <P>(a) Whenever feasible, and except as otherwise provided by law, debts owed to VA together with any interest and administrative costs assessed under § 1.919, shall be collected in full in one lump sum. Collection in one lump sum is applicable whether the debt is being collected by administrative offset or by another method, including voluntary payment. However, payments may be accepted in regular installments when the debtor is financially unable to pay the debt in one lump sum.</P> <P>(b) In agreeing to accept regular installment payments to liquidate an outstanding indebtedness, VA shall obtain a legally enforceable written agreement from the debtor which specifies all of the terms of the agreement and which contains a provision accelerating the debt in the event that the debtor defaults. The size and frequency of installment payments should bear a reasonable relationship to the size of the debt and the debtor's ability to pay. If possible, the installment payments should be sufficient in size and frequency to liquidate the debt in not more than three years. Installment payments of less than $50 per month shall be accepted only if justified on the grounds of financial hardship or for some other reasonable cause.</P> <P>(c) If VA is holding an unsecured claim for administrative collection, it shall attempt to obtain from a debtor an executed confess-judgment note in States and jurisdictions where permitted, using Department of Justice Form 1, or another appropriate Department of Justice form, whenever the total amount of the deferred installments will exceed $750. Such notes may also be sought when an unsecured obligation of a lesser amount is involved. When attempting to obtain confess-<PRTPAGE P="108"/>judgment notes, VA shall provide debtors with a written explanation of the consequences of signing the note, and shall maintain sufficient documentation to demonstrate that the debtor signed the note knowingly and voluntarily. Security for deferred payments, other than a confess-judgment note, may be accepted in appropriate cases. VA may accept installment payments even if the debtor refuses to execute a confess-judgment note or to give other security.</P> <P>(d) If the debtor owes more than one debt and designates how a voluntary installment payment is to be applied as among these debts, that designation must be followed by VA. If the debtor does not designate the application of the payment, VA shall apply payments to the various debts in accordance with the best interests of the Government as determined by the facts and circumstances of the particular case, paying special attention to applicable statutes of limitations.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42106, Nov.3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.918</SECTNO> <SUBJECT>Exploration of compromise.</SUBJECT> <P>VA will attempt to effect compromises, preferably during the course of personal interviews, in accordance with the standards set forth in §§ 1.930 through 1.938 in all cases in which it is ascertained that the debtor is financially unable to pay the full amount or in which the litigative risks or the costs of litigation dictate such action.</P> <CITA>[52 FR 42107, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.919</SECTNO> <SUBJECT>Interest.</SUBJECT> <P>(a) Except as otherwise provided by statute, contract, or other regulation to the contrary, VA shall assess:</P> <P>(1) Interest on all indebtedness to the United States arising as a result of participation in VA benefit programs which are being paid in installments,</P> <P>(2) Interest and administrative costs of collection on debts where repayment has become delinquent, and</P> <P>(3) Interest, penalties, and administrative costs on all nonbenefit debts in accordance with 4 CFR 102.13.</P> <P>(b) Every party entering into an agreement with the Department of Veterans Affairs for repayment of indebtedness in installments shall be advised of the interest charges to be added to the debt. All debtors being provided notice of indebtedness, including those entering into repayment agreements, shall be advised that upon the debt becoming delinquent, or in the case of repayment of already delinquent debts, interest and the administrative costs of collection will be added to the principal amount of the debt.</P> <P>(c) The rate of interest charged by VA shall be based on the rate paid by the United States for its borrowing as published in the Treasury's Cash Management Regulations (ITFM 6-8000). The rate of interest shall be adjusted annually on the first day of the calendar year to reflect the average rate being charged in accordance with the Treasury's Cash Management Regulations. Once the rate of interest has been determined for a particular debt, the rate shall remain unchanged throughout the duration of repayment of that debt.</P> <P>(d) Interest on amounts covered by § 1.919 shall accrue from the date the initial notice of the debt is mailed to the debtor. Notification shall be considered sufficient when effected by ordinary mail, addressed to the last known address, and such notice is not returned as undeliverable by postal authorities.</P> <P>(e) Interest under this section shall not be charged if the debt is paid in full within 30 days of mailing of the initial notice described in paragraph (b) of this section. Once interest begins to accrue, and after expiration of the time period for payment of the debt in full to avoid assessment of interest and administrative costs, any amount received toward the payment of such debt shall be first applied to payment of outstanding administrative cost charges and then to accrued interest or costs, and then to principal, unless a different rule is prescribed by statute, contract, or other regulation.</P> <P>(f) All or any part of the interest and administrative costs assessed under this section are subject to consideration for waiver under section 5302 of title 38 U.S.C., and appropriate administrative procedures.</P> <P>(1) In general, interest and administrative costs may be waived only when <PRTPAGE P="109"/>the principal of the debt on which they are assessed is waived by a Committee on Waivers and Compromises. However, VA may forbear collection of interest and administrative costs, exclusive of collection of the principal of the debt on which they are assessed, as well as terminate further assessment of interest and administrative costs when the collection of such interest and costs are determined to be not in the government's best interest. Collection of interest and administrative costs shall not be considered to be in the best interest of the government when the amount of assessed interest and administrative cost is so large that there is a reasonable certainty that the original debt will never be repaid. The determination to forbear collection of interest and administrative cost, exclusive of collection of the principal of the debt, shall be made by the Chief of the Fiscal activity at the station responsible for the collection of the debt. Such a determination is not within the jurisdiction of a Committee on Waivers and Compromises.</P> <P>(2) When a debtor requests a waiver of collection of the indebtedness, interest and administrative costs shall not be assessed until either</P> <P>(i) A Committee on Waivers and Compromises has considered the request and rendered an initial decision, or</P> <P>(ii) The applicable time limit for requesting waiver, as stated in 38 U.S.C. 5302, has expired and the debtor, after notice in accordance with § 1.911, has not made such a request. This subsection does not apply to debts resulting from participation in the loan program administered under chapter 37 of title 38 of the United States Code. </P> <PARAUTH>(Authority: 38 U.S.C. 5302, 5315)</PARAUTH> <P>(g) Administrative costs assessed under § 1.919 shall be the average costs of collection of similar debts, or actual collection costs as may be accurately determined in the particular case. No administrative costs of collection will be assessed under § 1.919 in any cases where the indebtedness is paid in full prior to the 30 day period specified in paragraph (e) of this section, or in any case where a repayment plan is proposed by the debtor and accepted by the Department of Veterans Affairs within that period, unless such repayment agreement becomes delinquent.</P> <SECAUTH>(Authority: 38 U.S.C. 5315)</SECAUTH> <CITA>[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.920</SECTNO> <SUBJECT>Documentation of collection action.</SUBJECT> <P>An appropriate file will be maintained for each claim completely documenting all Department of Veterans Affairs collection action and the basis for any compromise or for suspension or termination of collection action.</P> <CITA>[46 FR 62057, Dec. 22, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.921</SECTNO> <SUBJECT>Additional collection action.</SUBJECT> <P>Nothing in §§ 1.900 through 1.954 is intended to preclude the utilization of any other remedy available to the Department of Veterans Affairs.</P> </SECTION> <SECTION> <SECTNO>§ 1.922</SECTNO> <SUBJECT>Disclosure of debt information to consumer reporting agencies (CRA).</SUBJECT> <P>(a) The Department of Veterans Affairs may disclose all information determined to be necessary, including the name, address, Department of Veterans Affairs file number, Social Security number, and date of birth, to consumer reporting agencies for the purpose of—</P> <P>(1) Obtaining the location of an individual indebted to the United States as a result of participation in any benefits program administered by VA or indebted in any other manner to VA;</P> <P>(2) Obtaining a consumer report in order to assess an individuals ability to repay a debt when such individual has failed to respond to the Department's demand for repayment or when such individual has notified the Department that he/she will not repay the indebtedness; or</P> <P>(3) Obtaining the location of an individual in order to conduct program evaluation studies as required by 38 U.S.C. 527 or any other law.</P> <P>(b) Information disclosed by the Department of Veterans Affairs under paragraph (a) of this section to consumer reporting agencies shall neither expressly nor implicitly indicate that an individual is indebted to the United States nor shall such information be <PRTPAGE P="110"/>recorded by consumer reporting agencies in a manner that reflects adversely upon the individual. Prior to disclosing this information, the Department of Veterans Affairs shall ascertain that consumer reporting agencies with which it contracts are able to comply with this requirement. The Department of Veterans Affairs shall also make reasonable efforts to insure compliance by its contractor with this requirement.</P> <P>(c) Subject to the conditions set forth in paragraph (d) of this section, information concerning individuals may be disclosed to consumer reporting agencies for inclusion in consumer reports pertaining to the individual, or for the purpose of locating the individual. Disclosure of the fact of indebtedness will be made if the individual fails to respond in accordance with written demands for repayment, or refuses to repay a debt to the United States. In making any disclosure under this section, VA will provide consumer reporting agencies with sufficient information to identify the individual, including the individual's name, address, if known, date of birth, VA file number, and Social Security number.</P> <P>(d)(1) Prior to releasing information under paragraph (c) of this section, the Department of Veterans Affairs will send a notice to the individual. This notice will inform the individual that—</P> <P>(i) The Department of Veterans Affairs has determined that he or she is indebted to the Department of Veterans Affairs;</P> <P>(ii) The debt is presently delinquent; and</P> <P>(iii) The fact of delinquency may be reported to consumer reporting agencies after 30 days have elapsed from the date of the notice.</P> <P>(2)(i) VA will notify each individual of the right to dispute the existence or amount of any debt in accordance with §§ 3.101(e) and 19.109, and to request a waiver of the debt in accordance with §§ 1.955 through 1.970 if applicable.</P> <P>(ii) If the Department of Veterans Affairs has not previously notified the individual of the rights described in paragraph (d)(2)(i) of this section, the Department of Veterans Affairs will include this information in the notice described in paragraph (d)(1) of this section. The individual shall be afforded a minimum of 30 days from the date of the notice to respond to it before information is reported to consumer reporting agencies.</P> <P>(3) The Department of Veterans Affairs will defer reporting information to a consumer reporting agency if the individual disputes the existence or amount of any debt or requests waiver of the debt within the time limits set forth in paragraph (d)(2)(ii) of this section. The Department of Veterans Affairs will review any dispute and notify the individual of its findings. If the original decision is determined to be correct, or if the individual's request for waiver is denied, the Department of Veterans Affairs may report the fact of delinquency to a consumer reporting agency. However, the individual shall be afforded 30 days from date of the notice of the agency's determination to repay the debt.</P> <P>(4) Nothing in this section affects an individual's right to appeal an agency decision to the Board of Veterans Appeals. However, information concerning the debt may be disclosed while an appeal is pending before the Board of Veterans Appeals.</P> <P>(5) Upon request, the Department of Veterans Affairs will notify an individual—</P> <P>(i) Whether information concerning a debt has been reported to consumer reporting agencies;</P> <P>(ii) Of the name and address of each consumer reporting agency to which information has been released; and</P> <P>(iii) Of the specific information released.</P> <FP>A notice of the right to request this information will be sent with the notice described in paragraph (d)(1) of this section.</FP> <P>(e) Subsequent to disclosure of information to consumer reporting agencies as described in paragraph (c) of this section, the Department of Veterans Affairs shall:</P> <P>(1) Notify on a monthly basis each consumer reporting agency concerned of any substantial change in the status or amount of indebtedness.</P> <P>(2) Promptly verify any and all information disclosed if so requested by the consumer reporting agency concerned.<PRTPAGE P="111"/> </P> <P>(f) In the absence of a different rule prescribed by statute, contract, or other regulation, an indebtedness is considered delinquent if not paid by the individual by the date due specified in the notice of indebtedness, unless satisfactory arrangements are made by such date.</P> <P>(g) Notification shall be considered sufficient when effected by ordinary mail, addressed to the last known address, and such notice is not returned as undeliverable by postal authorities.</P> <P>(h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract between the Department of Veterans Affairs and a consumer reporting agency, nor does it apply to a consumer reporting agency and its employees. See 38 U.S.C. 5701(i). This paragraph does not relieve the Department of Veterans Affairs of its obligation to comply with the Privacy Act.</P> <P>(i) The term “consumer reporting agency” means any person or agency which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties or to other consumer reporting agencies. The term “consumer reporting agency” shall also mean any person or agency which serves as a marketing agent under arrangements enabling third parties to obtain such information from consumer reporting agencies, or which obtain such information for the purpose of furnishing it to consumer reporting agencies.</P> <SECAUTH>(Authority: 38 U.S.C. 5701 (g), (i); 31 U.S.C. 952)</SECAUTH> <CITA>[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.923</SECTNO> <SUBJECT>Contracting for collection services.</SUBJECT> <P>(a) VA has authority to contract for collection services to recover delinquent debts, provided that:</P> <P>(1) The authority to resolve disputes, compromise claims, suspend or terminate collection and refer the matter for litigation shall be retained by VA;</P> <P>(2) The contractor shall be subject to 38 U.S.C. 5701, and to the Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C. 552a(m), and to applicable Federal and State laws and regulations pertaining to debt collection practices, such as the Fair Debt Collection Practices Act, 15 U.S.C. 1692 <E T="03">et seq.</E> </P> <P>(3) The contractor shall be required to strictly account for all amounts collected;</P> <P>(4) Upon returning an account to VA for subsequent referral to the Department of Justice for litigation, the contractor must agree to provide any data contained in its files relating to § 1.951.</P> <P>(b) Funding of collection service contracts:</P> <P>(1) VA may fund a collection service contract on a fixed-fee basis (i.e., payment of a fixed fee determined without regard to the amount actually collected under the contract). Payment of the fee under this type of contract must be charged to available appropriations;</P> <P>(2) VA may also fund a collection service contract on a contingent-fee basis (i.e., by including a provision in the contract permitting the contractor to deduct its fee from amounts collected under the contract). The fee should be based upon a percentage of the amount collected, consistent with prevailing commercial practice;</P> <P>(3) VA may enter into a contract under paragraph (b)(1) of this section only if and to the extent that funding for the contract is provided for in advance by an appropriation act or other legislation, except that this requirement does not apply to the use of a revolving fund authorized by statute;</P> <P>(4) Except as authorized under paragraphs (b)(2) and (b)(5) of this section, or unless otherwise specifically provided by law, VA shall deposit all amounts recovered under collection service contracts for Loan Guaranty debts into the Loan Guaranty Revolving Fund, and for all other debts in the Treasury as miscellaneous receipts pursuant to 31 U.S.C. 3302.</P> <P>(5) For benefit overpayments recovered under collection service contract, VA, pursuant to 31 U.S.C. 3302, shall deposit:</P> <P>(i) Amounts equal to the original overpayments in the appropriations account from which the overpayments were made, and<PRTPAGE P="112"/> </P> <P>(ii) Amount of interest or administrative costs in the Treasury as miscellaneous receipts.</P> <SECAUTH>(Authority: 31 U.S.C. 3718)</SECAUTH> <CITA>[52 FR 42107, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.924</SECTNO> <SUBJECT>Use and disclosure of mailing addresses.</SUBJECT> <P>(a) When attempting to locate a debtor in order to collect or compromise a debt in accordance with §§ 1.900 through 1.954, VA may send a request to the Secretary of the Treasury, or his/her designee, in order to obtain the debtor's most current mailing address from the records of the Internal Revenue Service.</P> <P>(b) VA may disclose a mailing address obtained under paragraph (a) of this section to other agents, including collection service contractors hired by VA, in order to facilitate the collection or compromise of debts. A mailing address obtained under paragraph (a) of this section may be disclosed to a consumer reporting agency under authority of § 1.922 only for the limited purpose of obtaining a commercial credit report on the particular taxpayer.</P> <P>(c) VA will insure that procedures established under this section comply with the Privacy Act (5 U.S.C. 552a) and the provisions of 26 U.S.C. 6103(p)(4) and applicable regulations of the Internal Revenue Service.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42108, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.925</SECTNO> <SUBJECT>Administrative offset against amounts payable from Civil Service Retirement and Disability Fund, Federal Employees Retirement System (FERS), final salary check, and lump sum leave payments.</SUBJECT> <P>(a) Unless otherwise prohibited by law or regulation, VA may request that money which is due and payable to a debtor from either the Civil Service Retirement and Disability Fund or the Federal Employees Retirement System (FERS) be administratively offset in reasonable amounts in order to collect, in one full payment or a minimal number of payments, debts that are owed to VA by the debtor. Such requests shall be made to the appropriate officials at the Office of Personnel Management in accordance with such regulations prescribed by the Director of that Office. See 5 CFR part 831, subpart R (§§ 831.1801 through 831.1808) and part 845, subpart O (§§ 845.401 through 845.408). In addition, VA may also offset against a Federal employee's final salary check and lump sum leave payment, unless they represent continuation of an offset against current salary initiated in accordance with §§ 1.980 through 1.994. See § 1.912 for procedures for offset against a final salary check and lump sum leave payment.</P> <P>(b) When making a request to the Office of Personnel Management for administrative offset under paragraph (a) of this section, VA shall include a written certification that:</P> <P>(1) The debtor owes VA a debt, including the amount of the debt;</P> <P>(2) VA has complied with the applicable statutes, regulations, and procedures of the Office of Personnel Management; and</P> <P>(3) VA has complied with §§ 1.911, 1.912, 1.912a, or 4 CFR 102.3 including any required hearing or review.</P> <P>(c) Once VA decides to request administrative offset from the Civil Service Retirement and Disability Fund or Federal Employees Retirement System (FERS) under paragraph (a) of this section, it shall make the request as soon as possible after completion of the applicable procedures in order that the Office of Personnel Management may identify the debtor's account in anticipation of the time when the debtor requests or becomes eligible to receive payments from the Fund or FERS. This will satisfy any requirement that offset be initiated prior to expiration of the applicable statutes of limitations. At such time as the debtor makes a claim for payments from the Fund or FERS, if at least a year has elapsed since the offset request was originally made, the debtor should be permitted to offer a satisfactory repayment plan in lieu of offset upon establishing that such offset will create financial hardship.</P> <P>(d) If VA collects all or part of the debt by other means before deductions are made or completed in accordance with paragraph (a) of this section, VA shall promptly act to modify or terminate its request for offset under paragraph (a) of this section.<PRTPAGE P="113"/> </P> <P>(e) The Office of Personnel Management is neither required nor authorized by this section to review the merits of VA's determination with respect to the amount and validity of the debt waiver under 5 U.S.C. 5584 or 38 U.S.C. 5302, or providing or not providing an oral hearing.</P> <SECAUTH>(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716)</SECAUTH> <CITA>[52 FR 42108, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.926</SECTNO> <SUBJECT>Referral of VA debts.</SUBJECT> <P>(a) When authorized, VA may refer an uncollectible debt to another Federal or State agency for the purpose of offsetting the debt from any payment, except salary, (see paragraph (e) of this section), made by such agency to the person indebted to VA.</P> <P>(b) VA must certify in writing that the individual owes the debt, the amount and basis of the debt, the date on which payment became due, and the date VA's right to collect the debt first accrued.</P> <P>(c) This certification will also state that VA provided the debtor with written notice of:</P> <P>(1) The nature and amount of the debt;</P> <P>(2) VA's intention to pursue collection by offset procedures;</P> <P>(3) The opportunity to inspect and copy VA records pertaining to the debt;</P> <P>(4) The right to contest both the existence and amount of the debt and to request a waiver of collection of the debt (if applicable), as well as the right to a hearing on both matters;</P> <P>(5) The opportunity to enter into a written agreement with VA for the repayment of the debt; and</P> <P>(6) Other applicable notices required by §§ 1.911, 1.912, and 1.912a.</P> <P>(d) The written certification required by paragraphs (b) and (c) of this section will also contain (for all debts) a listing of all actions taken by both VA and the debtor subsequent to the notice, as well as the dates of such actions.</P> <P>(e) The referral by VA of a VA debt to another agency for the purposes of salary offset shall be done in accordance with 5 CFR 550.1106.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42108, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.927</SECTNO> <SUBJECT>Analysis of costs and prevention of debts.</SUBJECT> <P>(a) VA collection procedures should provide for periodic comparison of costs incurred and amounts collected. Data on costs and corresponding recovery rates for debts of different types and various dollar ranges should be used to compare the cost effectiveness of alternative collection procedures, establish guidelines with respect to points at which costs of further collection efforts are likely to exceed recoveries, assist in evaluating compromise offers, and establish minimum debt amounts below which collection efforts need not be taken. Costs and recovery data should also be useful in justifying adequate resources for an effective collection program, evaluating the feasibility and cost effectiveness of contracting for consumer reporting agencies’ services (§ 1.922), collection services (§ 1.923), and for determining appropriate charges for administrative costs (§ 1.919).</P> <P>(b) VA shall insure that adequate procedures are established which both identify the causes of overpayments, delinquencies, and defaults and also describe the actions necessary to correct such problems.</P> <SECAUTH>(Authority: 31 U.S.C. 3711 through 3719)</SECAUTH> <CITA>[52 FR 42109, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.928</SECTNO> <SUBJECT>Exemptions.</SUBJECT> <P>(a) Sections 1.900 through 1.954 do not apply to debts arising under, or to payments made under, the Internal Revenue Code of 1954, as amended (26 U.S.C. 1 <E T="03">et seq.</E>), the Social Security Act (42 U.S.C. 301 <E T="03">et seq.</E>), or tariff laws of the United States. However, the remedies and procedures described in §§ 1.900 through 1.954 are still authorized with respect to debts which are exempt from the purview of the Debt Collection Act of 1982, to the extent that they are authorized under some other statute or common law.<PRTPAGE P="114"/> </P> <P>(b) This section shall not be construed as prohibiting the use of §§ 1.900 through 1.954 when VA attempts to collect debts owed to this agency by persons employed by the agencies administering the laws cited in paragraph (a) of this section.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42109, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.929</SECTNO> <SUBJECT>Reduction of debt through performance of work-study services.</SUBJECT> <P>(a) <E T="03">Scope.</E> (1) Subject to the provisions of this section VA may allow an individual to reduce an indebtedness to the United States through offset of benefits to which the individual becomes entitled by performance of work-study services under 38 U.S.C. 3485 and 3537 when the debt arose by virtue of the individual's participation in a benefits program provided under any of the following:</P> <P>(i) 38 U.S.C. chapter 30;</P> <P>(ii) 38 U.S.C. chapter 31;</P> <P>(iii) 38 U.S.C. chapter 32;</P> <P>(iv) 38 U.S.C. chapter 34;</P> <P>(v) 38 U.S.C. chapter 35;</P> <P>(vi) 38 U.S.C. chapter 36 (other than an education loan provided under subpart F, part 21 of this title); or</P> <P>(vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising from a refund penalty imposed under 10 U.S.C. 16135).</P> <P>(2) This section shall not apply in any case in which the individual has a pending request for waiver of the debt under §§ 1.950 through 1.970. </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)</PARAUTH> <P>(b) <E T="03">Selection criteria.</E> (1) If there are more candidates for a work-study allowance than there are work-study positions available in the area in which the services are to be performed, VA will give priority to the candidates who are pursuing a program of education or rehabilitation.</P> <P>(2) Only after all candidates in the area described in paragraph (b)(1) of this section either have been given work-study contracts or have withdrawn their request for contracts will VA offer contracts to those who are not pursuing a program of education or rehabilitation and who wish to reduce their indebtedness through performance of work-study services.</P> <P>(3) VA shall not offer a contract to an individual who is receiving compensation from another source for the work-study services the individual wishes to perform.</P> <P>(4) VA shall not offer a contract to an individual if VA determines that the debt can be collected through other means such as collection in a lump sum, collection in installments as provided in § 1.917 or compromise as provided in § 1.918. </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)</PARAUTH> <P>(c) <E T="03">Utilization.</E> The work-study services to be performed under a debt-liquidation contract will be limited as follows:</P> <P>(1) If the individual is concurrently receiving educational assistance in a program administered by VA, work-study services are limited to those allowed in the educational program under which the individual is receiving benefits.</P> <P>(2) If the individual is not concurrently receiving educational assistance in a program administered by VA, the individual may perform only those work-study services and activities which are or were open to those students receiving a work-study allowance while pursuing a program of education pursuant to the chapter under which the debt was incurred. </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)</PARAUTH> <P>(d) <E T="03">Contract to perform services.</E> (1) The work-study services performed to reduce indebtedness shall be performed pursuant to a contract between the individual and VA.</P> <P>(2) The individual shall perform the work-study services required by the contract at the place or places designated by VA.</P> <P>(3) The number of hours of services to be performed under the contract must be sufficient to enable the individual to become entitled to a sum large enough to liquidate the debt by offset.</P> <P>(4) The number of weeks in the contract will not exceed the lesser of—</P> <P>(i) The number of weeks of services the individual needs to perform to liquidate his or her debt; or</P> <P>(ii) 52.<PRTPAGE P="115"/> </P> <P>(5) In determining the number of hours per week and the number of weeks under paragraphs (d)(3) and (d)(4) of this section necessary to liquidate the debt, VA will use the amount of the account receivable, including all accrued interest, administrative costs and marshall fees outstanding on the date the contract is offered to the individual and all accrued interest, administrative costs and marshall fees VA estimates will have become outstanding on the debt on the date the debt is to be liquidated.</P> <P>(6) The contract will automatically terminate after the total amount of the individual's indebtedness described in paragraph (d)(5) of this section has been recouped, waived, or otherwise liquidated. An individual performing work-study services under a contract to liquidate a debt is released from the contract if the debt is liquidated by other means.</P> <P>(7) The contract to perform work-study services for the purpose of liquidating indebtedness will be terminated if:</P> <P>(i) The individual is liquidating his or her debt under this section while receiving either an educational assistance allowance for further pursuit of a program of education or a subsistence allowance for further pursuit of a program of rehabilitation;</P> <P>(ii) The individual terminates or reduces the rate of pursuit of his or her program of education or rehabilitation; and</P> <P>(iii) The termination or reduction causes an account receivable as a debt owed by the individual.</P> <P>(8) VA may terminate the contract at any time the individual fails to perform the services required by the contract in a satisfactory manner. </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)</PARAUTH> <P>(e) <E T="03">Reduction of indebtedness.</E> (1) In return for the individual's agreement to perform hours of services totaling not more than 40 times the number of weeks in the contract, VA will reduce the eligible person's outstanding indebtedness by an amount equal to the higher of—</P> <P>(i) The hourly minimum wage in effect under section 6(a) of the Fair Labor Standards Act of 1938 times the number of hours the individual works; or</P> <P>(ii) The hourly minimum wage under comparable law of the State in which the services are performed times the number of hours the individual works.</P> <P>(2) VA will reduce the individual's debt by the amount of the money earned for the performance of work-study services after the completion of each 50 hours of services (or in the case of any remaining hours required by the contract, the amount for those hours). </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)</PARAUTH> <P>(f) <E T="03">Suspension of collections by offset.</E> Notwithstanding the provisions of § 1.912a, during the period covered by the work-study debt-liquidation contract with the individual, VA will ordinarily suspend the collection by offset of a debt described in paragraph (a)(1) of this section. However, the individual may voluntarily permit VA to collect part of the debt through offset against other benefits payable while the individual is performing work-study services. If the contract is terminated before its scheduled completion date, and the debt has not been liquidated, collection through offset against other benefits payable will resume on the date the contract terminates. </P> <PARAUTH>(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)</PARAUTH> <P>(g) <E T="03">Payment for additional hours.</E> (1) If an individual, without fault on his or her part, performs work-study services for which payment may not be authorized, including services performed after termination of the contract, VA will pay the individual at the applicable hourly minimum wage for such services as the Director of the VA field station of jurisdiction determines were satisfactorily performed.</P> <P>(2) The Director of the VA field station of jurisdiction shall determine whether the individual was without fault. In making this decision he or she shall consider all evidence of record and any additional evidence which the individual wishes to submit.</P> <SECAUTH>(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)</SECAUTH> <CITA>[62 FR 15401, Apr. 1, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="116"/> <HD SOURCE="HED">Standards for Compromise of Claims</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.930 to 1.937 issued under 72 Stat. 1114; 38 U.S.C. 501.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 2614, Feb. 8, 1967, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.930</SECTNO> <SUBJECT>Scope and application.</SUBJECT> <P>(a) The standards set forth in §§ 1.930 through 1.938 apply to the compromise of claims in accordance with 31 U.S.C. 3711. VA may exercise such compromise authority where the claim owed to VA does not exceed $100,000 exclusive of interest and other late payment charges. This $100,000 limit does not apply to debts which arise out of participation in the loan program under chapter 37 of title 38 of the United States Code. The Comptroller General or his/her designee may exercise compromise authority with respect to claims referred to the General Accounting Office (GAO). Only the Comptroller General or his/her designee may compromise a claim that arises out of an exception made by GAO on account of an accountable officer, including a claim against the payer, prior to its referral by GAO to the Department of Justice for litigation.</P> <P>(b) When the claim exceeds $100,000, exclusive of interest and other late payment charges, the authority to accept a compromise offer rests solely with the Department of Justice. However, approval by the Department of Justice is not required if VA wishes to reject a compromise offer on a debt in excess of $100,000. If VA believes that the compromise offer on a debt in excess of $100,000 should be accepted, it shall refer the matter to the Department of Justice by using the Claims Collection Litigation Report (section 1.951). The referral should contain a written memorandum by the local Committee on Waivers and Compromises specifying the exact reason why it is believed that the compromise offer should be accepted. Both the Claims Collection Litigation Report and the Committee's memorandum should be sent to VA Central Office, Office of Financial Management, for subsequent referral to the Department of Justice.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[57 FR 47263, Oct. 15, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.931</SECTNO> <SUBJECT>Inability to pay.</SUBJECT> <P>(a) A claim may be compromised by VA pursuant to §§ 1.930 through 1.938 if VA cannot collect the full amount of the debt because of:</P> <P>(1) The debtor's inability to pay the full amount of the debt within a reasonable amount of time; or</P> <P>(2) The refusal of the debtor to pay the claim in full and the inability of VA to collect the debt in full within a reasonable time by means of enforced collection.</P> <P>(b) In determining the debtor's ability to pay, the following factors, among others, may be considered:</P> <P>(1) Age and health of the debtor;</P> <P>(2) Present and potential income;</P> <P>(3) Inheritance prospects;</P> <P>(4) The possibility that assets have been concealed or improperly transferred by the debtor; and</P> <P>(5) The availability of assets or income which may be realized by means of enforced collection procedures.</P> <P>(c) VA will give consideration to the applicable exemptions available to the debtor under various State and Federal laws in determining the ability to enforce collection. Uncertainty as to the price which collateral or other property will bring at a forced sale may be properly considered in determining the ability to enforce collection. A compromise effected under §§ 1.930 through 1.938 should be for an amount which bears a reasonable relation to the amount which can be recovered by enforced collection procedures, having regard for the exemptions available to the debtor and the time in which collection will take place.</P> <P>(d) The payment of a compromise in installments is to be discouraged. However, if payment of a compromise in installments is necessary, then a legally enforceble agreement shall be obtained from the debtor for the reinstatement of the original amount of the indebtedness, less any amounts paid there on by the debtor, and also an acceleration of the balance due upon default. Such an <PRTPAGE P="117"/>agreement, together with security as described in § 1.917, should be obtained in every case possible.</P> <P>(e) If VA files do not contain recent credit information as a basis for assessing a compromise proposal, such information shall be obtained from the debtor by obtaining a statement, executed under penalty of perjury, showing the debtor's assets and liabilities, income and expenses. Forms such as VA Form 4-5655 “Financial Status Report” or Department of Justice Forms OBD-500 or OBD-500B shall be used to obtain this information. Similar data may be obtained from corporate debtors by using a form, such as Department of Justice Form OBD-500C or by resort to balance sheets and such additional data as may be required.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42109, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.932</SECTNO> <SUBJECT>Litigative possibilities.</SUBJECT> <P>VA will attempt to compromise claims when there is a real doubt as to the Government's ability to prove its case in court for the full amount claimed either because of the legal issues involved or bona fide dispute as to the facts. The amount accepted in compromise will fairly reflect the probability of prevailing on the legal question involved, the probabilities with respect to full or partial recovery of a judgment having due regard to the availability of witnesses and other evidentiary support for the Government claim, and related pragmatic considerations. Proportionate weight will be given the court costs and attorney fees which may be assessed against the Government if it is unsuccessful in litigation, having regard for the litigative risks involved. (See 28 U.S.C. 2412.)</P> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.933</SECTNO> <SUBJECT>Cost of collecting claim.</SUBJECT> <P>The Department of Veterans Affairs will attempt to compromise claims when the cost of collection does not justify enforced collection of the full amount. The amount accepted in compromise in such cases may reflect an appropriate discount for the administrative and litigative costs of collection, having regard for the time required to effect collection. The cost of collection normally will be a proportionately greatly factor in the settlement of small claims.</P> </SECTION> <SECTION> <SECTNO>§ 1.934</SECTNO> <SUBJECT>Enforcement policy.</SUBJECT> <P>Statutory penalties, interest, and administrative costs which are established as an aid to enforcement and to compel compliance may be compromised pursuant to §§ 1.930 through 1.938. However, such additional costs on debts will be considered for compromise only in connection with compromise of the total amount of the debt (original amount of debt plus interest and costs). Interest, administrative costs, and other additional costs will never be considered for compromise separately or exclusively from the original amount of the debt.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.935</SECTNO> <SUBJECT>Joint and several liability.</SUBJECT> <P>When two or more debtors are jointly and severally liable, collection action will not be withheld against one such debtor until the other or others pay their proportionate shares. VA shall not attempt to allocate the burden of paying such claims as between the debtors, but shall proceed to liquidate the indebtedness as quickly as possible. Proper measures shall be taken to insure that a compromise with one such debtor does not release VA's claim against the remaining debtor. The amount of a compromise accepted from one debtor shall not be considered as a precedent or as morally binding in determining the amount which will be required from the other debtor held to be jointly and severally liable on the claim.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.936</SECTNO> <SUBJECT>Settlement for a combination of reasons.</SUBJECT> <P>VA may compromise specific claims for any combination of reasons authorized by sections 1.930-1.938.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[57 FR 47264, Oct. 15, 1992]</CITA> </SECTION> <SECTION> <PRTPAGE P="118"/> <SECTNO>§ 1.937</SECTNO> <SUBJECT>Further review of compromise offers.</SUBJECT> <P>VA may refer to the GAO or Department of Justice firm written offers, plus supporting data, from debtors when there is doubt whether the offers should be accepted.</P> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.938</SECTNO> <SUBJECT>Restrictions.</SUBJECT> <P>VA will not accept either a percentage of a debtor's profits or stock in a debtor corporation in compromise of a claim. In negotiating a compromise with a business concern, consideration shall be given to requiring a waiver of the tax-loss-carry-forward and tax-loss-carry-back rights of the debtor.</P> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Standards for Suspending or Terminating Collection Action</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 2615, Feb. 8, 1967, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.940</SECTNO> <SUBJECT>Scope and application.</SUBJECT> <P>(a) The standards set forth in §§ 1.940 through 1.943 apply to the suspension and or termination of collection action pursuant to 31 U.S.C. 3711(a)(3) on claims which do not exceed $100,000, exclusive of interest and other late payment charges, after deducting the amount of partial payments or collections, if any. VA may suspend or terminate collection action under §§ 1.940 through 1.943 with respect to claims for money or property arising out of the Department's activities prior to the referral of such claims to GAO or the Department of Justice for litigation. The Comptroller General may authorize such authority with respect to such claims referred to GAO by VA prior to their further referral to the Department of Justice for litigation.</P> <P>(b) If after deducting the amount of any partial payments or collections, a claim exceeds $100,000, exclusive of interest and other late payment charges, then the authority to suspend or terminate collection action rests solely with the Department of Justice. If VA determines that suspension or termination is appropriate for such a debt, after evaluation in accordance with the standards set forth in §§ 1.941 and 1.942, then the matter shall be referred to the Department of Justice, using the Claims Collection Litigation Report (see § 1.951). The referral shall contain a written recommendation, which specifies the reasons why suspension or termination is advantageous to the government. If VA determines that its claim is plainly erroneous or clearly without legal merit, it may terminate collection regardless of the amount involved, without the concurrence of the Department of Justice. If VA decides not to suspend or terminate collection action on the claim, Justice Department approval is not required.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[57 FR 47264, Oct. 15, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.941</SECTNO> <SUBJECT>Suspension of collection activity.</SUBJECT> <P>(a) Collection action may be suspended temporarily on a claim when the debtor cannot be located after diligent effort and there is reason to believe that future collection action may be sufficiently productive to justify periodic review and action on the claim. The following sources shall be used to locate missing debtors: Telephone directories, city directories, postmasters, drivers license records, automobile title and registration records, State and local government agencies, the Internal Revenue Service (§ 1.924), other Federal agencies, employers, relatives, credit agency locate reports, and credit bureaus. Suspension as to a particular debtor should not prohibit the early liquidation of any security held for the debt. Every reasonable effort should be made to locate missing debtors sufficiently in advance of the bar of any applicable statute of limitations, in order to permit the timely filing of a suit, if such action is warranted. If the missing debtor has signed a confess-judgment note and is in default, referral of the note for the entry of judgment should not be delayed because of his/her missing status.</P> <P>(b) Collection action may also be suspended temporarily on a claim when the debtor owns no substantial equity in real or personal property and is unable to make payments on the debt owed to VA or effect a compromise at the time, but his/her future prospects <PRTPAGE P="119"/>justify retention of the claim for periodic review and action, and:</P> <P>(1) The applicable statute of limitations has been tolled or started running again, or</P> <P>(2) Future collection can be affected by offset, notwithstanding the statute of limitations, with due regard to the 10 year limitation prescribed by 31 U.S.C. 3716(c)(1), or</P> <P>(3) The debtor agrees to pay interest on the amount of the debt on which collection action has been suspended temporarily, and such temporary suspension is likely to enhance the debtor's ability to pay the debt in full, with interest, at a later time.</P> <P>(c) Collection action may also be suspended, in accordance with §§ 1.911, 1.912, and 1.912a, pending agency action on requests for administrative review or waiver.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42110, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.942</SECTNO> <SUBJECT>Termination of collection activity.</SUBJECT> <P>Termination of collection activity involves a final determination. Collection activity may be terminated on cases previously suspended. The Department of Veterans Affairs may terminate collection activity and consider closing the agency file on a claim which meets any one of the following standards:</P> <P>(a) <E T="03">Inability to collect any substantial amount.</E> Collection action may be terminated on a claim when it becomes clear that VA cannot collect or enforce collection of any significant amount from the debtor, having due regard for the judicial remedies available to the agency, the debtor's future financial prospects, and the exemptions available to the debtor under State and Federal law. In determining the debtor's inability to pay, the following factors, among others, shall be considered: Age and health of the debtor, present and potential income, inheritance prospects, the possibility that assets have been concealed or improperly transferred by the debtor, the availability of assets or income which may be realized by means of enforced collection proceedings.</P> <P>(b) <E T="03">Inability to locate debtor.</E> The debtor cannot be located, no security remains to be liquidated, the applicable statute of limitations has run, and the prospects of collecting by offset are too remote.</P> <P>(c) <E T="03">Death of debtor.</E> The debtor is determined to be deceased and the Government has no prospect of collection from his/her estate.</P> <P>(d) <E T="03">Cost will exceed recovery.</E> The cost of further collection effort is likely to exceed the amount recoverable.</P> <P>(e) <E T="03">Claim legally without merit.</E> Collection action should be terminated on a claim whenever it is determined that the claim is legally without merit.</P> <P>(f) <E T="03">Claim cannot be substantiated by evidence.</E> VA will terminate collection action on once asserted claims because of lack of evidence or unavailability of witnesses only in cases where efforts to induce voluntary payment are unsuccessful.</P> <CITA>[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.943</SECTNO> <SUBJECT>Transfer of claims.</SUBJECT> <P>When VA has doubt as to whether collection action should be suspended or terminated on a claim, it may refer the claim to the GAO for advice. When a significant enforcement policy is involved in reducing a statutory penalty or forfeiture to judgment, or recovery of a judgment is a prerequisite to the imposition of administrative sanctions, such as the suspension or revocation of a license or the privilege of participating in a government sponsored program, VA may refer such a claim for litigation even though termination of collection activity might otherwise be given consideration. Claims on which VA holds a judgment by assignment or otherwise shall be referred to the Department of Justice for further actions if renewal of the judgment lien or enforced collection proceedings are justified, except where VA has authority for handling its own litigation.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> <CITA>[52 FR 42111, Nov. 3, 1987</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="120"/> <HD SOURCE="HED">Referrals to GAO, Department of Justice, or IRS</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.950 to 1.954 issued under 72 Stat. 1114; 38 U.S.C. 501.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 42111, 42112, Nov. 3, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.950</SECTNO> <SUBJECT>Prompt referral.</SUBJECT> <P>(a) Except as provided in paragraphs (b) and (c) of this section, claims on which aggressive collection action has been taken and which cannot be compromised, or on which collection action cannot be suspended or terminated, shall be promptly referred to the Department of Justice for litigation. Claims for which the gross original amount is over $100,000 shall be referred to the Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC 20530. Claims for which the gross original amount is $100,000 or less shall be referred to the United States Attorney in whose judicial district the debtor can be found. Referrals should be made as early as possible, consistent with aggressive collection action and the observance of §§ 1.900 through 1.954, and well within the time period for bringing a suit against the debtor. Ordinarily, such referrals should be made within one year of VA's final determination of the fact and amount of the debt.</P> <P>(b) Claims arising from audit exceptions taken by the GAO to payments made by VA must be referred to the GAO for review and approval, prior to referral to the Department of Justice, unless VA has been granted an exception by the GAO.</P> <P>(c) When the merits of VA claim, the amount owed on the claim, or the propriety of acceptance of a proposed compromise, suspension, or termination are in doubt, the Department of Veterans Affairs shall refer the matter to the GAO for resolution and instructions prior to proceeding with collection action and/or referral to the Department of Justice for litigation.</P> <P>(d) Once a claim has been referred to the GAO or the Department of Justice pursuant to this section, VA shall refrain from having any contact with the debtor and shall direct the debtor to the GAO or the Department of Justice, as appropriate, when questions concerning the claim or a request for waiver of the claim are raised by the debtor. The GAO or the Department of Justice, as appropriate, shall be immediately notified by VA of any payments or requests for administrative remedies, such as waiver, which are received by this department from the debtor subsequent to referral of a claim under this section.</P> <P>(e) In accordance with procedures set forth in 26 CFR part 301, information pertaining to past-due, legally enforceable debts owed to VA may be referred to the Internal Revenue Service by VA for the purpose of collection of such debts by means of tax refund offset.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.951</SECTNO> <SUBJECT>Claims Collection Litigation Report.</SUBJECT> <P>(a) Unless an exception is granted by the Department of Justice, the Claims Collection Litigation Report (CCLR) shall be used with all referrals of administratively uncollectible claims made pursuant to § 1.950. As required by the CCLR, the following information shall be included:</P> <P>(1) <E T="03">Report of prior collection actions.</E> A checklist or brief summary of the actions taken to collect or compromise the claim will be forwarded with the claim upon its referral. If any of the administrative collection actions described in §§ 1.900 through 1.954 have been omitted, the reasons for their omission must be provided. The Department of Justice or GAO may return claims at their option when there is insufficient justification for the omission of one or more of the administrative collection actions.</P> <P>(2) <E T="03">Current address of the debtor.</E> The current address of the debtor, or the name and address of the agent for a corporation upon whom service may be made, shall be provided. Reasonable and appropriate steps will be taken to locate missing parties in all cases. Referrals to the Department of Justice, in which the current address of any party is unknown, shall be accompanied by a listing of the prior known addresses of such party and a statement of the steps taken to locate that party.</P> <P>(3) <E T="03">Credit data.</E> Current credit data, when applicable, indicating that there <PRTPAGE P="121"/>is a reasonable prospect of effecting enforced collection from the debtor, having due regard for the exemptions available to the debtor under State and Federal law and judicial remedies available to the government, shall be included:</P> <P>(i) Such credit data may take the form of:</P> <P>(A) A commercial credit report;</P> <P>(B) An agency investigative report showing the debtor's assets, liabilities, income, and expenses;</P> <P>(C) The individual debtor's own financial statement executed under penalty of perjury reflecting the debtor's assets, liabilities, income, and expenses; or</P> <P>(D) An audited balance sheet of a corporate debtor.</P> <P>(ii) Such credit data may be omitted if:</P> <P>(A) A surety bond is available in an amount sufficient to satisfy the claim in full;</P> <P>(B) The forced sale value of the security available for application to the VA claim is sufficient to satisfy the claim in full;</P> <P>(C) VA wishes to liquidate the loan collateral through judicial foreclosure but does not desire a deficiency judgment;</P> <P>(D) The debtor is in bankruptcy or receivership;</P> <P>(E) The debtor's liability to VA is fully covered by insurance, in which case VA will furnish such information as it can develop concerning the identity and address of the insurer and the type and amount of insurance coverage;</P> <P>(F) The nature of the debtor is such that credit data is not normally available or cannot reasonably be obtained; or</P> <P>(G) Where it is clearly irrelevant to the Government's case.</P> <P>(b) VA shall also use the Claims Collection Litigation Report (CCLR) when referring claims to the Department of Justice in order to obtain approval of that department with respect to compromise, suspension, or termination.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.952</SECTNO> <SUBJECT>Preservation of evidence.</SUBJECT> <P>Care shall be taken to preserve all files, records, and exhibits on claims referred to or to be referred to the Department of Justice for litigation. Under no circumstances should original documents be sent to the Department of Justice or to the U.S. Attorney without their specific prior approval to do so. Copies of relevant documents should be sent whenever necessary.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.953</SECTNO> <SUBJECT>Minimum amount of referrals to the Department of Justice.</SUBJECT> <P>VA shall not refer claims of less than $600, exclusive of interest, penalties (if applicable), and administrative costs, for litigation unless:</P> <P>(a) Referral is important to a significant enforcement policy, or</P> <P>(b) The debtor not only has the clear ability to pay the claim but the government can effectively enforce payment, having due regard for the exemptions available to the debtor under State and Federal law and the judicial remedies available to the government.</P> <SECAUTH>(Authority: 31 U.S.C. 3711)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.954</SECTNO> <SUBJECT>Preliminary referrals to GAO.</SUBJECT> <P>As required by § 1.950, preliminary referrals to the Government Accounting Office (GAO) will be in accordance with instructions, including monetary limitations, contained in the “General Accounting Office Policy and Procedures Manual for the Guidance of Federal Agencies”.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Regional Office Committees on Waivers and Compromises</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sections 1.955 to 1.970 issued under 5 U.S.C. 5584; 31 U.S.C. 3711; 38 U.S.C. 501, 3685, 3720, 5302; 4 CFR Parts 91 and 92.</P> </AUTH> <SECTION> <SECTNO>§ 1.955</SECTNO> <SUBJECT>Regional office Committees on Waivers and Compromises.</SUBJECT> <P>(a) <E T="03">Delegation of authority and establishment.</E> (1) Sections 1.955 <E T="03">et seq.</E> are issued to implement the authority for waiver consideration found in 38 U.S.C. 5302 and 5 U.S.C. 5584 and the compromise authority found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The duties, delegations of authority, and all actions required of the Committees on Waivers and Compromises are to be accomplished under the direction of, and authority vested in, the Director of the <PRTPAGE P="122"/>regional office. Delegations of authority and limitations for waiver actions under 5 U.S.C. 5584 are set forth in § 1.963a of this part.</P> <P>(2) There is established in each regional office, a Committee on Waivers and Compromises to perform the duties and assume the responsibilities delegated by §§ 1.956 and 1.957. The term <E T="03">regional office</E>, as used in § 1.955 <E T="03">et seq.</E>, includes VA Medical and Regional Office Centers and VA Centers where such are established.</P> <P>(b) <E T="03">Selection.</E> The Director shall designate the employees to serve as Chairperson, members and alternates. Except upon specific authorization of the Under Secretary for Benefits, when workload warrants a full-time committee, such designation will be part-time additional duty upon call of the Chairperson.</P> <P>(c) <E T="03">Control and staff.</E> The Division Chief of the Fiscal activity is accountable for the administrative control of the Committee functions. The quality control of the Committee and its professional and clerical staff is the responsibility of the Chairperson.</P> <P>(d) <E T="03">Overall control.</E> The Assistant Secretary for Finance and Information Resources Management (IRM) is delegated complete management authority, including planning, policy formulation, control, coordination, supervision, and evaluation of Committee operations</P> <P>(e) <E T="03">Committee composition.</E> (1) The Committee shall consist of a Chairperson and Alternate Chairperson and as many Committee members and alternate members as the Director may appoint. Members and alternates shall be selected so that in each of the debt claim areas (i.e., compensation, pension, education, insurance, loan guaranty, etc.) there are members and alternates with special competence and familiarity with the program area.</P> <P>(2) When a claim is properly referred to the Committee for either waiver consideration or the consideration of a compromise offer, the Chairperson shall designate a panel from the available Committee members to consider the waiver request or compromise offer. If the debt for which the waiver request or compromise offer is made is $20,000 or less (exclusive or interest and administrative costs), the Chairperson will assign one Committee member as the panel. This one Committee member should have experience in the program area where the debt is located. The single panel member's decision shall stand as the decision of the Committee. If the debt for which the waiver request or compromise offer is made is more than $20,000 (exclusive of interest and administrative costs), the Chairperson shall assign two Committee members. One of the two members should be knowledgeable in the program area where the debt arose. If the two member panel cannot reach a unanimous decision, the Chairperson shall assign a third member of the Committee to the panel, or assign the case to three new members, and the majority vote shall determine the Committee decision.</P> <P>(3) The assignment of a one or two member panel as described in paragraph (e)(2) of this section is applicable if the debtor files a Notice of Disagreement with a Committee decision to deny waiver. That is, if the Notice of Disagreement is filed with a decision by a one member panel to deny waiver of collection of a debt of $20,000 or less, then the Notice of Disagreement should also be assigned to one panel member. Likewise, a Notice of Disagreement filed with a decision by a two or three member panel to deny waiver of collection of a debt of more than $20,000 should also be assigned to a Committee panel of two members (three if these two members cannot agree). However, a Chairperson must assign the Notice of Disagreement to a different one, two, or three member panel than the panel that made the original Committee decision that is now the subject of the Notice of Disagreement.</P> <SECAUTH>(Authority: 5 U.S.C. 5584, 31 U.S.C. 3711, 38 U.S.C. 3720(a), 5302)</SECAUTH> <CITA>[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54 FR 40871, Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.956</SECTNO> <SUBJECT>Jurisdiction.</SUBJECT> <P>(a) The regional office Committees are authorized, except as to determinations under § 2.6(e)(4)(i) of this chapter <PRTPAGE P="123"/>where applicable, to consider and determine as limited in §§ 1.955 <E T="03">et seq.</E>, settlement, compromise and/or waiver concerning the following debts and overpayments:</P> <P>(1) Arising out of operations of the Veterans Benefits Administration:</P> <P>(i) Overpayment or erroneous payments of pension, compensation, dependency and indemnity compensation, burial allowances, plot allowance, subsistence allowance, education (includes debts from work study and education loan defaults as well as from other overpayments of educational assistance benefits) or insurance benefits, clothing allowance and automobile or other conveyance and adaptive equipment allowances.</P> <P>(ii) Debts arising out of the loan program under 38 U.S.C. ch. 37 after liquidation of security, if any.</P> <P>(iii) Such other debts as may be specifically designated by the Under Secretary for Benefits.</P> <P>(2) Arising out of operations of the Veterans Health Services and Research Administration:</P> <P>(i) Debts resulting from services furnished in error (§ 17.62(a) of this chapter).</P> <P>(ii) Debts resulting from services furnished in a medical emergency (§ 17.62(b) of this chapter).</P> <P>(iii) Settlement of breached career residency contracts.</P> <P>(iv) Other claims arising in connection with transactions of the Veterans Health Services and Research Administration (§ 17.64(c) of this chapter).</P> <P>(3) Claims for erroneous payments of pay and allowances, and erroneous payments of travel, transportation, and relocation expenses and allowances, made to or on behalf of employees (5 U.S.C. 5584, 4 CFR Parts 91 and 92).</P> <P>(b) The Under Secretary for Benefits may, at his or her discretion, assume original jurisdiction and establish an ad hoc Board to determine a particular issue arising within this section.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979; 60 FR 53276, Oct. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.957</SECTNO> <SUBJECT>Committee authority.</SUBJECT> <P>(a) <E T="03">Regional office committee.</E> On matters covered in § 1.956, the regional office Committee is authorized to determine the following issues:</P> <P>(1) <E T="03">Waivers.</E> A decision may be rendered to grant or deny waiver of collection of a debt in the following overpayment categories:</P> <P>(i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may consider waiver of the indebtedness of a veteran or spouse resulting from: (A) The payment of a claim under the guaranty or insurance of loans, (B) the liquidation of direct loans, (C) the liquidation of loans acquired under § 36.4318, and (D) the liquidation of vendee accounts. The phrase <E T="03">veteran or spouse</E> includes a veteran-borrower, veteran-transferee, a veteran-purchaser on a vendee account, a former spouse or surviving spouse of a veteran.</P> <P>(ii) Other than loan guaranty program. (38 U.S.C. 5302(a))</P> <P>(iii) Services erroneously furnished. (§ 17.62(a))</P> <P>(2) <E T="03">Compromises—</E>(i) <E T="03">Loan program debts</E> (38 U.S.C. 3720(a)). Accept or reject a compromise offer irrespective of the amount of the debt (loan program matters under 38 U.S.C. chapter 37 are unlimited as to amount).</P> <P>(ii) Other than loan program debts (31 U.S.C. 3711).</P> <P>(A) Accept or reject a compromise offer on a debt which exceeds $1,000 but which is not over $100,000 (both amounts exclusive of interest and other late payment charges).</P> <P>(B) Accept or reject a compromise offer on a debt of a $1,000 or less, exclusive of interest and other late payment charges, which is not disposed of by the Chief, Fiscal activity, pursuant to paragraph (b) of this section.</P> <P>(C) Reject a compromise offer on a debt which exceeds $100,000, exclusive of interest and other late payment charges.</P> <P>(D) Recommend approval of a compromise offer on a debt which exceeds $100,000, exclusive of interest and other late payment charges. The authority to accept a compromise offer on such a debt rests solely within the jurisdiction of the Department of Justice. The Committee should evaluate a compromise offer on a debt in excess of $100,000, using the factors set forth in §§ 1.930 through 1.938. If the Committee believes that the compromise offer is <PRTPAGE P="124"/>advantageous to the government, then the Committee members shall so state this conclusion in a written memorandum of recommendation of approval to the Chairperson. This recommendation, along with a Claims Collection Litigation Report (CCLR) completed in accordance with § 1.951, will be referred to VA Central Office, Office of Financial Management (047G7), for submission to the Department of Justice for final approval. </P> <PARAUTH>(Authority: 31 U.S.C. 3711)</PARAUTH> <P>(3) <E T="03">Breached career residency contracts.</E> Final settlement of any breached career residency contract in which terms are different than those provided in the contract, which will result in the payment of less than liquidated value or in an extension of time in which to pay damages.</P> <P>(b) <E T="03">Chief of Fiscal activity.</E> The Chief of the Fiscal activity at both VBA and VHA offices has the authority, as to debts within his/her jurisdiction, to:</P> <P>(1) On other than loan program debts under 38 U.S.C. chapter 37, accept compromise offers of 50% or more of a total debt not in excess of $1,000, exclusive of interest and other late payment charges, regardless of whether or not there has been a prior denial of waiver.</P> <P>(2) On other than loan program debts under 38 U.S.C. chapter 37, reject any offer of compromise of a total debt not in excess of $1,000, exclusive of interest and other late payment charges, regardless of whether or not there has been a prior denial of waiver.</P> <P>(3) On other than loan guaranty program debts under 38 U.S.C. chapter 37, reject any offer of compromise of a total debt not in excess of $1,000, exclusive of interest, regardless of whether or not there has been a prior denial of waiver.</P> <SECAUTH>(Authority: 31 U.S.C. 3711 and 38 U.S.C. 3720(a))</SECAUTH> <CITA>[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.958</SECTNO> <SUBJECT>Finality of decisions.</SUBJECT> <P>A decision by the regional office Committee operating within the scope of its authority, denying waiver of all or a part of an overpayment is subject to appeal. There is no right of appeal from a decision rejecting a compromise offer.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[44 FR 59906, Oct. 17, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.959</SECTNO> <SUBJECT>Records and certificates.</SUBJECT> <P>The Chairperson of the Committee shall execute or certify any documents pertaining to its proceedings. He/she will be responsible for maintaining needed records of the transactions of the Committee and preparation of any administrative or other reports which may be required.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[44 FR 59906, Oct. 17, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.960</SECTNO> <SUBJECT>Legal and technical assistance.</SUBJECT> <P>Legal questions involving a determination under § 2.6(e)(4) of this chapter will be referred to the Regional Counsel for action in accordance with delegations of the General Counsel, unless there is an existence a General Counsel's opinion or an approved Regional Counsel's opinion dispositive of the controlling legal principle. As to matters not controlled by § 2.6(e)(4) of this chapter, the Chairperson of the regional office Committee or at his/her instance, a member, may seek and obtain advice from the Regional Counsel on legal matters within his/her jurisdiction and from other division chiefs in their areas of responsibility, on any matter properly before the Committee. Guidance may also be requested from the Central Office staff.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[44 FR 59906, Oct. 17, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.961</SECTNO> <SUBJECT>Releases.</SUBJECT> <P>On matters within its jurisdiction, the Committee may authorize the release of any right, title, claim, lien or demand, however acquired, against any person obligated on a loan guaranteed, insured, or made by the Department of Veterans Affairs under the provisions of 38 U.S.C. ch. 37, or on an acquired loan, or on a vendee account.</P> <CITA>[39 FR 26400, July 19, 1974]</CITA> </SECTION> <SECTION> <PRTPAGE P="125"/> <SECTNO>§ 1.962</SECTNO> <SUBJECT>Waiver of overpayments.</SUBJECT> <P>There shall be no collection of an overpayment, or any interest thereon, which results from participation in a benefit program administered under any law by VA when it is determined by a regional office Committee on Waivers and Compromises that collection would be against equity and good conscience. For the purpose of this regulation, the term <E T="03">overpayment</E> refers only to those benefit payments made to a designated living payee or beneficiary in excess of the amount due or to which such payee or beneficiary is entitled. The death of an indebted payee, either prior to a request for waiver of the indebtedness or during Committee consideration of the waiver request, shall not preclude waiver consideration. There shall be no waiver consideration of an indebtedness that results from the receipt of a benefit payment by a non-payee who has no claim or entitlement to such payment.</P> <P>(a) Waiver consideration is applicable in an indebtedness resulting from work study and education loan default, as well as indebtedness of a veteran-borrower, veteran transferee, or indebted spouse of either, arising out of participation in the loan program administered under 38 U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness which is the result of VA hospitalization, domiciliary care, or treatment of a veteran, either furnished in error or on the basis of tentative eligibility.</P> <P>(b) In any case where there is an indication of fraud or misrepresentation of a material fact on the part of the debtor or any other party having an interest in the claim, action on a request for waiver will be deferred pending appropriate disposition of the matter. However, the existence of a prima facie case of fraud shall, nevertheless, entitle a claimant to an opportunity to make a rebuttal with countervailing evidence; similiarly, the misrepresentation must be more than non-willful or mere inadvertence. The Committee may act on a request for waiver concerning such debts, after the Inspector General or the Regional Counsel has determined that prosecution is not indicated, or the Department of Justice has notified VA that the alleged fraud or misrepresentation does not warrant action by that department, or the Department of Justice or the appropriate United States Attorney, specifically authorized action on the request for waiver.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 50 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.963</SECTNO> <SUBJECT>Waiver; other than loan guaranty.</SUBJECT> <P>(a) <E T="03">General.</E> Recovery of overpayments of any benefits made under laws administered by the VA shall be waived if there is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver and recovery of the indebtedness from the payee who received such benefits would be against equity and good conscience.</P> <P>(b) <E T="03">Application.</E> A request for waiver of an indebtedness under this section shall only be considered:</P> <P>(1) If made within 2 years following the date of a notice of indebtedness issued on or before March 31, 1983, by the Department of Veterans Affairs to the debtor, or</P> <P>(2) Except as otherwise provided herein, if made within 180 days following the date of a notice of indebtedness issued on or after April 1, 1983, by the Department of Veterans Affairs to the debtor. The 180 day period may be extended if the individual requesting waiver demonstrated to the Chairperson of the Committee on Waivers and Compromises that, as a result of an error by either the Department of Veterans Affairs or the postal authorities, or due to other circumstances beyond the debtor's control, there was a delay in such individual's receipt of the notification of indebtedness beyond the time customarily required for mailing (including forwarding). If the requester does substantiate that there was such a delay in the receipt of the notice of indebtedness, the Chairperson shall direct that the 180 day period be computed from the date of the requester's <PRTPAGE P="126"/>actual receipt of the notice of indebtedness.</P> <SECAUTH>(Authority: 38 U.S.C. 5302 (a) & (c))</SECAUTH> <CITA>[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979; 48 FR 27400, June 15, 1983; 50 FR 38803, Sept. 25, 1985; 58 FR 3840, Jan. 12, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.963a</SECTNO> <SUBJECT>Waiver; erroneous payments of pay and allowances.</SUBJECT> <P>The provisions applicable to VA (including those for appeals and refunds) concerning waiver actions relating to erroneous payments to VA employees of pay and allowances and travel, transportation, and relocation expenses and allowances under 5 U.S.C. 5584 are set forth at 4 CFR Parts 91 and 92. The members of Committees on Waivers and Compromises assigned to waiver actions under § 1.955 of this part are hereby delegated all authority granted the Secretary under 5 U.S.C. 5584 and 4 CFR Parts 91 and 92 to grant waiver in whole or in part of a claim aggregating not more than $1,500, to recommend approval of waiver in whole or in part of a claim aggregating more than $1,500, and to deny waiver of a claim for any amount. The following are the only provisions of §§ 1.955 through 1.970 of this part applicable to waiver actions concerning erroneous payments of pay and allowances and travel, transportation, and relocation expenses and allowances under 5 U.S.C. 5584: §§ 1.955(a) through (e)(2), 1.956(a) (introductory text) and (a)(3), 1.959, 1.960, 1.963a, and 1.967(c).</P> <SECAUTH>(Authority: 5 U.S.C. 5584, 38 U.S.C. 501; 4 CFR Parts 91 and 92)</SECAUTH> <CITA>[60 FR 53276, Oct. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.964</SECTNO> <SUBJECT>Waiver; loan guaranty.</SUBJECT> <P>(a) <E T="03">General.</E> Any indebtedness of a veteran or the indebtedness of the spouse shall be waived only when the following factors are determined to exist:</P> <P>(1) Following default there was a loss of the property which constituted security for the loan guaranteed, insured or made under chapter 37 of title 38 United States Code;</P> <P>(2) There is no indication of fraud, misrepresentation, or bad faith on the part of the person or persons having an interest in obtaining the waiver; and</P> <P>(3) Collection of such indebtedness would be against equity and good conscience.</P> <P>(b) <E T="03">Spouse.</E> The waiver of a veteran's indebtedness shall inure to the spouse of such veteran insofar as concerns said indebtedness, unless the obligation of the spouse is specifically excepted. However, the waiver of the indebtedness of the veteran's spouse shall not inure to the benefit of the veteran unless specifically provided for in the waiver decision.</P> <P>(c) <E T="03">Surviving spouse or former spouse.</E> A surviving spouse of a veteran or the former spouse of a veteran may be granted a waiver of the indebtedness provided the requirements of paragraph (a) of this section are met.</P> <P>(d) <E T="03">Preservation of Government rights.</E> In cases in which it is determined that waiver may be granted, the action will take such form (covenant not to sue, or otherwise) as will preserve the rights of the Government against obligors other than the veteran or the spouse.</P> <P>(e) <E T="03">Application.</E> A request for waiver of an indebtedness under this section shall be made within one year after the date on which the debtor receives, by Certified Mail-Return Receipt Requested, written notice from VA of the indebtedness. If written notice of indebtedness is sent by means other than Certified Mail-Return Receipt Requested, then there is no time limit for filing a request for waiver of indebtedness under this section. </P> <PARAUTH>(Authority: 38 U.S.C. 5302(b))</PARAUTH> <P>(f) <E T="03">Exclusion.</E> Except as otherwise provided in this section, the indebtedness of a nonveteran obligor under the loan program is excluded from waiver.</P> <SECAUTH>(Authority:</SECAUTH> <P>38 U.S.C. 5302 (b) and (c))</P> <CITA>[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 57 FR 33875, July 31, 1992; 58 FR 3840, Jan. 12, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.965</SECTNO> <SUBJECT>Application of standard.</SUBJECT> <P>(a) The standard “Equity and Good Conscience”, will be applied when the facts and circumstances in a particular case indicate a need for reasonableness and moderation in the exercise of the Government's rights. The decision reached should not be unduly favorable <PRTPAGE P="127"/>or adverse to either side. The phrase <E T="03">equity and good conscience</E> means arriving at a fair decision between the obligor and the Government. In making this determination, consideration will be given to the following elements, which are not intended to be all inclusive:</P> <P>(1) <E T="03">Fault of debtor.</E> Where actions of the debtor contribute to creation of the debt.</P> <P>(2) <E T="03">Balancing of faults.</E> Weighing fault of debtor against Department of Veterans Affairs fault.</P> <P>(3) <E T="03">Undue hardship.</E> Whether collection would deprive debtor or family of basic necessities.</P> <P>(4) <E T="03">Defeat the purpose.</E> Whether withholding of benefits or recovery would nullify the objective for which benefits were intended.</P> <P>(5) <E T="03">Unjust enrichment.</E> Failure to make restitution would result in unfair gain to the debtor.</P> <P>(6) <E T="03">Changing position to one's detriment.</E> Reliance on Department of Veterans Affairs benefits results in relinquishment of a valuable right or incurrence of a legal obligation.</P> <P>(b) In applying this single standard for all areas of indebtedness, the following elements will be considered, any indication of which, if found, will preclude the granting of waiver:</P> <P>(1) Fraud or misrepresentation of a material fact (see § 1.962(b)).</P> <P>(2) <E T="03">Bad faith.</E> This term generally describes unfair or deceptive dealing by one who seeks to gain thereby at another's expense. Thus, a debtor's conduct in connection with a debt arising from participation in a VA benefits/services program exhibits bad faith if such conduct, although not undertaken with actual fraudulent intent, is undertaken with intent to seek an unfair advantage, with knowledge of the likely consequences, and results in a loss to the government.</P> <P>(3) <E T="03">Lack of good faith.</E> Absence of an honest intention to abstain from taking unfair advantage of the holder and/or the Government.</P> <SECAUTH>(Authority: 38 U.S.C. 5302(c))</SECAUTH> <CITA>[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58 FR 7296, Feb. 5, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.966</SECTNO> <SUBJECT>Scope of waiver decisions.</SUBJECT> <P>(a) Decisions will be based on the evidence of record. A hearing may be held at the request of the claimant or his/her representative. No expenses incurred by a claimant, his representative, or any witness incident to a hearing will be paid by the Department of Veterans Affairs.</P> <P>(b) A regional office Committee may:</P> <P>(1) Waive recovery as to certain persons and decline to waive as to other persons whose claims are based on the same veteran's service.</P> <P>(2) Waive or decline to waive recovery from specific benefits or sources, except that:</P> <P>(i) There shall be no waiver of recovery out of insurance of an indebtedness secured thereby; i.e., an insurance overpayment to an insured. However, recovery may be waived of any or all of such indebtedness out of benefits other than insurance then or thereafter payable to the insured.</P> <CITA>[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979; 48 FR 1056, Jan. 10, 1983]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.967</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>(a) Except as provided in paragraph (c) of this section, any portion of an indebtedness resulting from participation in benefits programs administered by the Department of Veterans Affairs which has been recovered by the U.S. Government from the debtor may be considered for waiver, provided the debtor requests waiver in accordance with the time limits of § 1.963(b). If collection of an indebtness is waived as to the debtor, such portions of the indebtedness previously collected by the Department of Veterans Affairs will be refunded. In the event that waiver of collection is granted for either an education, loan guaranty, or direct loan debt, there will be a reduction in the debtor's entitlement to future benefits in the program in which the debt originated.</P> <P>(b) The Department of Veterans Affairs may not waive collection of the indebtedness of an educational institution found liable under 38 U.S.C. 3685. Waiver of collection of educational benefit overpayments from all or a portion of the eligible persons attending <PRTPAGE P="128"/>an educational institution which has been found liable under 38 U.S.C. 3685 shall not relieve the institution of its assessed liability. (See 38 CFR 21.4009(f)).</P> <P>(c) The regulatory provisions concerning refunds of indebtedness collected by the Department of Veterans Affairs arising from erroneous payments of pay and allowances and travel, transportation, and relocation expenses and allowances are set forth in 4 CFR Parts 91 and 92.</P> <P>(d) Refund of the entire amount collected may not be made when only a part of the debt is waived or when collection of the balance of a loan guaranty indebtedness by the Department of Veterans Affairs from obligors, other than a husband or wife of the person requesting waiver, will be adversely affected. Only where the amount collected exceeds the balance of the indebtedness still in existence will a refund be made in the amount of the difference between the two. Otherwise, refunds will be made in accordance with paragraph (a) of this section.</P> <SECAUTH>(Authority: 38 U.S.C. 3685, 5302; 5 U.S.C. 5584)</SECAUTH> <CITA>[48 FR 1056, Jan. 10, 1983, as amended at 60 FR 53276, Oct. 13, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.968</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.969</SECTNO> <SUBJECT>Revision of waiver decisions.</SUBJECT> <P>(a) <E T="03">Jurisdiction.</E> A decision involving waiver may be reversed or modified on the basis of new and material evidence, fraud, a change in law or interpretation of law specifically stated in a Department of Veterans Affairs issue, or clear and unmistakable error shown by the evidence in file at the time the prior decision was rendered by the same or any other regional office Committee.</P> <P>(b) <E T="03">Finality of decisions.</E> Except as provided in paragraph (a) of this section, a decision involving waiver rendered by the Committee having jurisdiction is final, subject to the provisions of:</P> <P>(1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to finality of decisions;</P> <P>(2) Section 3.105 (a) and (b) of this chapter as to revision of decisions, except that the Central Office staff may postaudit or make an administrative review of any decision of a regional office Committee;</P> <P>(3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice of disagreement and the right of appeal;</P> <P>(4) Section 19.124 of this chapter as to the filing of administrative appeals and the time limits for filing such appeals.</P> <P>(c) <E T="03">Difference of opinion.</E> Where reversal or amendment of a decision involving waiver is authorized under § 3.105(b) of this chapter because of a difference of opinion, the effective date of waiver will be governed by the principle contained in § 3.400(h) of this chapter.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[44 FR 59907, Oct. 17, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.970</SECTNO> <SUBJECT>Standards for compromise.</SUBJECT> <P>Decisions of the Committee respecting acceptance or rejection of a compromise offer shall be in conformity with the standards in §§ 1.900 through 1.937. In loan guaranty cases the offer of a veteran or other obligor to effect a compromise must relate to an indebtedness established after the liquidation of the security, if any, and shall be reviewed by the Committee. An offer to effect a compromise may be accepted if it is deemed advantageous to the Government. A decision on an offer of compromise may be revised or modified on the basis of any information which would warrant a change in the original decision.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[44 FR 59907, Oct. 17, 1979]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Salary Offset Provisions</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>52 FR 1905, Jan. 16, 1987, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 1.980</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>(a) The provisions set forth in §§ 1.980 through 1.994 implement VA's (Department of Veterans Affairs) authority for the use of salary offset to satisfy certain debts owed to the government.</P> <P>(b) These regulations apply to offsets by VA from the salaries of current employees of VA or any other agency who owe debts to VA. Offsets by VA from salaries of current employees of VA who owe debts to other agencies shall be processed under 5 CFR 550.1108.<PRTPAGE P="129"/> </P> <P>(c) These regulations do not apply to debts or claims arising under the Internal Revenue Code of 1954, as amended, the Social Security Act, the tariff laws of the United States, or to any case where collection of a debt by salary offset is explicitly provided for (e.g., travel advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 4108) or prohibited by another statute.</P> <P>(d) These regulations do not preclude an employee from requesting waiver of an overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any other similar provision of law, or in any way questioning the amount or validity of a debt not involving benefits under the laws administered by VA by submitting a subsequent claim to the General Accounting Office in accordance with procedures prescribed by that office.</P> <P>(e) These regulations do not apply to any adjustment to pay arising out of an employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less.</P> <P>(f) These regulations do not preclude the compromise, suspension, or termination of collection actions where appropriate under the standards implementing the Federal Claims Collection Act (31 U.S.C. 3711 <E T="03">et seq.</E>, 4 CFR parts 101-105, 38 CFR 1.900 <E T="03">et seq.</E>).</P> <P>(g) The procedures and requirements of these regulations do not apply to salary offset used to recoup a Federal employee's debt where a judgment has been obtained against the employee for the debt.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> <CITA>[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.981</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Agency</E> means:</P> <P>(1) An executive agency as defined in 5 U.S.C. 105, including the U.S. Postal Service, and the U.S. Postal Rate Commission, and</P> <P>(2) A military department as defined in 5 U.S.C. 102.</P> <P>(3) An agency or court of the judicial branch, including a court as defined in 28 U.S.C. 610, the District Court for the Northern Mariana Islands, and the Judicial Panel on Multidistrict Litigation;</P> <P>(4) An agency of the legislative branch, including the U.S. Senate and the U.S. House of Representatives; and</P> <P>(5) Other independent establishments that are entities of the Federal Government.</P> <P>(b) <E T="03">Debt</E> means an amount owed to the United States from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales of real or personal property, overpayments, penalties, damages, interest, fines and forfeitures (except those arising under the Uniform Code of Military Justice), and all other similar sources.</P> <P>(c) <E T="03">Disposable pay</E> means that part of current basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay remaining after the deduction of any amount required by law to be withheld. Excluded from this definition are deductions described in 5 CFR 581.105(b) through (f).</P> <P>(d) <E T="03">Employee</E> means a current employee of VA or other Federal agency including a current member of the Armed Forces or a Reserve of the Armed Forces (Reserves).</P> <P>(e) <E T="03">Salary offset</E> means an attempt to collect a debt under 5 U.S.C. 5514 by deduction(s) at one or more officially estabilished pay intervals from the current pay account of an employee without his or her consent.</P> <P>(f) <E T="03">Waiver</E> means the cancellation, remission, forgiveness, or non-recovery of a debt owed by an employee to VA or another Federal agency as permitted or required by 5 U.S.C. 5584 or 38 U.S.C. 5302, or other similar statutes.</P> <P>(g) <E T="03">Extreme hardship to an employee</E> means an employee's inability to provide himself or herself and his or her dependents with the necessities of life such as food, housing, clothing, transportation, and medical care.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> <CITA>[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="130"/> <SECTNO>§ 1.982</SECTNO> <SUBJECT>Salary offsets of debts involving benefits under the laws administered by VA.</SUBJECT> <P>(a) VA will not collect a debt involving benefits under the laws administered by VA by salary offset unless the Secretary or designee provides the employee with written notice.</P> <P>(b) If the employee has not previously appealed the amount or existence of the debt under §§19.1 through 19.200 of this title and time for pursuing such an appeal has not expired (§ 19.129), the Secretary or designee will provide the employee with written notice of the debt. The written notice will state that the employee may appeal the amount and existence of the debt in accordance with the procedures set forth in §§ 19.1 through 19.200 of this title and will contain the determination and information required by § 1.983(b)(1)-(5), (7), (9), (10), and (12)-(14). The notice will also state that the employee may request a hearing on the offset schedule under the procedures set forth in § 1.984 and such a request will stay the commencement of salary offset.</P> <P>(c) If the employee previously appealed the amount or existence of the debt and the Board of Veterans Appeals decided the appeal on the merits or if the employee failed to pursue an appeal within the time provided by regulations, the Secretary or designee shall provide the employee with written notice prior to collecting the debt by salary offset. The notice will state:</P> <P>(1) The determinations and information required by § 1.983(b)(1)-(5), (7), and (12)-(14);</P> <P>(2) That the employee's appeal of the existence or amount of the debt was determined on the merits or that the employee failed to pursue an appeal within the time provided, and VA's decision is final except as otherwise provided in agency regulations;</P> <P>(3) That the employee may request a waiver of the debt pursuant to § 1.911a(c)(2) subject to the time limits of 38 U.S.C. 5302;</P> <P>(4) That the employee may request an oral or paper hearing on the offset schedule and receive a decision within 60 days of such request under the procedures and time limit set forth in § 1.984 and that such a request will stay the commencement of salary offset.</P> <P>(d) If the employee has appealed the existence or amount of the debt and the Board of Veterans Appeals has not decided the appeal on the merits, collection of the debt by salary offset will be suspended until the appeal is decided or the employee ceases to pursue the appeal.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.983</SECTNO> <SUBJECT>Notice requirements before salary offsets of debts not involving benefits under the laws administered by VA.</SUBJECT> <P>(a) For a debt not involving benefits under the laws administered by VA, the Secretary or designee will review the records relating to the debt to assure that it is owed prior to providing the employee with a notice of the debt.</P> <P>(b) Except as provided in § 1.980(e), salary offset of debts not involving benefits under the laws administered by VA will not be made unless the Secretary or designee first provides the employee with a minimum of 30 calendar days written notice. This notice will state:</P> <P>(1) The Secretary or designee's determination that a debt is owed;</P> <P>(2) The amount of the debt owed and the facts giving rise to the debt;</P> <P>(3) The Secretary or designee's intention to collect the debt by means of deduction from the employee's current disposable pay account until the debt and all accumulated interest and associated costs are paid in full;</P> <P>(4) The amount, frequency, approximate beginning date, and duration of the intended deductions;</P> <P>(5) An explanation of VA's requirements concerning interest, administrative costs, and penalties;</P> <P>(6) The employee's right to inspect and copy VA records relating to the debt or, if the employee or his or her representative cannot personally inspect the records, to request and receive a copy of such records;</P> <P>(7) The employee's right to enter into a written agreement with the Secretary or designee for a repayment schedule differing from that proposed by the Secretary or designee, so long as the terms of the repayment schedule <PRTPAGE P="131"/>proposed by the employee are agreeable to the Secretary or designee;</P> <P>(8) The employee's right to request an oral or paper hearing, conducted by an administrative law judge or a hearing official of VA or another agency, on the Secretary or designee's determination of the existence of the debt, the amount of the debt, or the percentage of disposable pay to be deducted each pay period, so long as a request is filed by the employee as prescribed by the Secretary;</P> <P>(9) The method and time period for requesting a hearing;</P> <P>(10) That the timely filing of a request for a hearing (oral or paper) will stay the commencement of salary offset;</P> <P>(11) That a final decision after the hearing will be issued at the earliest practical date, but no later than 60 calendar days after the filing of the request for the hearing, unless the employee requests and the hearing officer grants a delay in the proceedings;</P> <P>(12) That any knowingly false or frivolous statements, representations, or evidence may subject the employee to:</P> <P>(i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR part 752, or any other applicable statutes or regulations;</P> <P>(ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or any other applicable statutory authority; or</P> <P>(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or any other applicable statutory authority.</P> <P>(13) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made; and</P> <P>(14) Unless there are applicable contractual or statutory provisions to the contrary, that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.984</SECTNO> <SUBJECT>Request for a hearing.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section and in § 1.982, an employee wishing a hearing on the existence or amount of the debt or on the proposed offset schedule must send such a request to the office which sent the notice of the debt. The employee must also specify whether an oral or paper hearing is requested. If an oral hearing is requested, the request should explain why the matter cannot be resolved by review of the documentary evidence. The request must be received by the office which sent the notice of the debt not later than 20 calendar days from the date of the notice.</P> <P>(b) If the employee files a request for a hearing after the expiration of the 20 day period provided for in paragraph (a) of this section, VA may accept the request if the employee shows that the delay was because of circumstances beyond his or her control or because of failure to receive the written notice of the filing deadline (unless the employee has actual notice of the filing deadline).</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.985</SECTNO> <SUBJECT>Form, notice of, and conduct of hearing.</SUBJECT> <P>(a) After an employee requests a hearing, the hearing official or administrative law judge shall notify the employee of the form of the hearing to be provided. If the hearing will be oral, the notice shall set forth the date, time, and location for the hearing. If the hearing will be paper, the employee shall be notified that he or she should submit his or her position and arguments in writing to the hearing official or administrative law judge by a specified date after which the record shall be closed. This date shall give the employee reasonable time to submit this information.</P> <P>(b) An employee who requests an oral hearing shall be provided an oral hearing if the hearing official or administrative law judge determines that the matter cannot be resolved by review of documentary evidence, for example, when an issue of credibility or veracity is involved. If a determination is made to provide an oral hearing, the hearing official or administrative law judge may offer the employee the opportunity for a hearing by telephone conference call. If this offer is rejected or if the hearing official or administrative law judge declines to offer a telephone conference call hearing, the employee <PRTPAGE P="132"/>shall be provided an oral hearing permitting the personal appearance of the employee, his or her personal representative, and witnesses. A record or transcript of every oral hearing shall be made. Witnesses shall testify under oath or affirmation. VA shall not be responsible for the payment of any expenses incident to attendance at the hearing which are incurred by either the employee, his or her representative or Counsel, or witnesses.</P> <P>(c) In all other cases where an employee requests a hearing, a paper hearing shall be provided. A paper hearing shall consist of a review of the written evidence of record by the administrative law judge or hearing official.</P> <P>(d) In any hearing under this section, the administrative law judge or hearing official may exclude from consideration evidence or testimony which is irrelevant, immaterial, or unduly repetitious.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.986</SECTNO> <SUBJECT>Result if employee fails to meet deadlines.</SUBJECT> <P>An employee waives the right to a hearing, and will have his or her disposable pay offset in accordance with the offset schedule, if the employee:</P> <P>(a) Fails to file a request for a hearing as prescribed in § 1.982, § 1.984, or §§ 19.1 through 19.200, whichever is applicable, unless such failure is excused as provided in § 1.984(b); or</P> <P>(b) Fails to appear at an oral hearing of which he or she had been notified unless the administrative law judge or hearing official determines that failure to appear was due to circumstances beyond the employee's control.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.987</SECTNO> <SUBJECT>Review by the hearing official or administrative law judge.</SUBJECT> <P>(a) The hearing official or administrative law judge shall uphold VA's determination of the existence and amount of the debt unless determined to be erroneous by a preponderance of the evidence.</P> <P>(b) The hearing official or administrative law judge shall uphold VA's offset schedule unless the schedule would result in extreme hardship to the employee.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> <CITA>[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.988</SECTNO> <SUBJECT>Written decision following a hearing requested under § 1.984.</SUBJECT> <P>(a) The hearing official or administrative law judge must issue a written decision not later than 60 days after the employee files a request for the hearing.</P> <P>(b) Written decisions provided after a hearing requested under § 1.984 will include:</P> <P>(1) A statement of the facts presented to support the nature and origin of the alleged debt;</P> <P>(2) The hearing official or administrative law judge's analysis, findings and conclusions concerning as applicable:</P> <P>(i) The employee's or VA's grounds;</P> <P>(ii) The amount and validity of the alleged debt; and</P> <P>(iii) The repayment schedule.</P> <P>(c) The decision in a case where a paper hearing was provided shall be based upon a review of the written record. The decision in a case where an oral hearing was provided shall be based upon the hearing and the written record.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.989</SECTNO> <SUBJECT>Review of VA records related to the debt.</SUBJECT> <P>(a) <E T="03">Notification by employee.</E> An employee who intends to inspect or copy VA records related to the debt as permitted by a notice provided under § 1.983 must send a letter to the office which sent the notice of the debt stating his or her intention. The letter must be received by that office within 20 calendar days of the date of the notice.</P> <P>(b) <E T="03">VA response.</E> In response to timely notice submitted by the debtor as described in paragraph (a) of this section, VA will notify the employee of the location and time when the employee may inspect and copy records related to the debt.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <PRTPAGE P="133"/> <SECTNO>§ 1.990</SECTNO> <SUBJECT>Written agreement to repay debt as alternative to salary offset.</SUBJECT> <P>(a) <E T="03">Notification by employee.</E> The employee may propose, in response to a notice under § 1.983, a written agreement to repay the debt as an alternative to salary offset. Any employee who wishes to do this must submit a proposed written agreement to repay the debt which is received by the office which sent the notice of the debt within 20 calendar days of the date of the notice.</P> <P>(b) <E T="03">VA response.</E> In response to timely notice by the debtor as described in paragraph (a) of this section, VA will notify the employee whether the employee's proposed written agreement for repayment is acceptable. It is within VA's discretion to accept a repayment agreement instead of proceeding by offset. In making this determination, VA will balance its interest in collecting the debt against the hardship to the employee. VA will accept a repayment agreement instead of offset only if the employee is able to establish that offset would result in extreme hardship.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.991</SECTNO> <SUBJECT>Procedures for salary offset: when deductions may begin.</SUBJECT> <P>(a) Deductions to liquidate an employee's debt will be by the method and in the amount stated in the notice to collect from the employee's current pay as modified by a written decision issued under §§ 1.982, 19.1 through 19.200 or § 1.988 or by written agreement between the employee and the VA under § 1.990.</P> <P>(b) If the employee filed a request for a hearing as provided by § 1.984 before the expiration of the period provided for in that section, deductions will not begin until after the hearing official or administrative law judge has provided the employee with a hearing, and has rendered a final written decision.</P> <P>(c) If the employee failed to file a timely request for a hearing, deductions will begin on the date specified in the notice of intention to offset, unless a hearing is granted pursuant to § 1.984(b).</P> <P>(d) If an employee retires or resigns or his or her employment ends before collection of the amount of the indebtedness is completed, the remaining indebtedness will be collected according to procedures for administrative offset (see 4 CFR 101.1 through 105.5 and 5 CFR 831.1801 through 831.1807).</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.992</SECTNO> <SUBJECT>Procedures for salary offset.</SUBJECT> <P>(a) <E T="03">Types of collection.</E> A debt will be collected in a lump-sum or in installments. Collection will be in a lump-sum unless the employee is financially unable to pay in one lump-sum, or if the amount of the debt exceeds 15 percent of the employee's disposable pay. In these cases, deduction will be by installments.</P> <P>(b) <E T="03">Installment deductions.</E> (1) A debt to be collected in installments will be deducted at officially established pay intervals from an employee's current pay account unless the employee and the Secretary agree to alternative arrangements for repayment. The alternative arrangement must be in writing and signed by both the employee and Secretary or designee.</P> <P>(2) Installment deductions will be made over a period not greater than the anticipated period of employment. The size and frequency of installment deductions will bear a reasonable relation to the size of the debt and the employee's ability to pay. However, the amount deducted for any period will not exceed 15 percent of the disposable pay from which the deduction is made, unless the employee has agreed in writing to the deduction of a greater amount. If possible, the installment payment will be sufficient in size and frequency to liquidate the debt in three years. Installment payments of less than $25 per pay period or $50 a month will be acceptable only in the most unusual circumstances.</P> <P>(c) <E T="03">Imposition of interests, penalties, and administrative costs.</E> Interest, penalties, and administrative costs will be charged in accordance with § 1.919 and 4 CFR 102.13.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> <CITA>[52 FR 1905, Jan. 16, 1987, as amended at 54 FR 34980, Aug. 23, 1989]</CITA> </SECTION> <SECTION> <PRTPAGE P="134"/> <SECTNO>§ 1.993</SECTNO> <SUBJECT>Non-waiver of rights.</SUBJECT> <P>So long as there are not statutory or contractual provisions to the contrary, an employee's involuntary payment (of all or a portion of a debt) under these regulations will not be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> <SECTION> <SECTNO>§ 1.994</SECTNO> <SUBJECT>Refunds.</SUBJECT> <P>VA will refund promptly to the appropriate individual amounts offset under these regulations when:</P> <P>(a) A debt is waived or otherwise found not owed the United States (unless expressly prohibited by statute or regulation); or</P> <P>(b) VA is directed by an administrative or judicial order to refund amounts deducted from the employee's current pay.</P> <SECAUTH>(Authority: 5 U.S.C. 5514)</SECAUTH> </SECTION> </SUBJGRP> <PART> <EAR>Pt. 2</EAR> <HD SOURCE="HED">PART 2—DELEGATIONS OF AUTHORITY</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>2.1</SECTNO> <SUBJECT>General provisions.</SUBJECT> <SECTNO>2.2</SECTNO> <SUBJECT>Delegation of authority to employees to issue subpoenas, etc.</SUBJECT> <SECTNO>2.3</SECTNO> <SUBJECT>Delegation of authority to employees to take affidavits, to administer oaths, etc.</SUBJECT> <SECTNO>2.4</SECTNO> <SUBJECT>Delegation of authority to order paid advertising for use in recruitment.</SUBJECT> <SECTNO>2.5</SECTNO> <SUBJECT>Delegation of authority to certify copies of documents, records, or papers in Department of Veterans Affairs files.</SUBJECT> <SECTNO>2.6</SECTNO> <SUBJECT>Secretary's delegations of authority to certain officials (38 U.S.C. 512).</SUBJECT> <SECTNO>2.7</SECTNO> <SUBJECT>Delegation of authority to provide relief on account of administrative error.</SUBJECT> <SECTNO>2.8</SECTNO> <SUBJECT>Delegation of authority to authorize allowances for Department of Veterans Affairs employees who are notaries public.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 1729A, 5711; 44 U.S.C. 3702, unless otherwise noted.</P> </AUTH> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 2 appear at 61 FR 7216, Feb. 27, 1996.</P> </EDNOTE> <SECTION> <SECTNO>§ 2.1</SECTNO> <SUBJECT>General provisions.</SUBJECT> <P>In addition to the delegations of authority in this part, numerous delegations of authority are set forth throughout this title.</P> <SECAUTH>(Authority: 38 U.S.C. 512)</SECAUTH> <CITA>[64 FR 47111, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.2</SECTNO> <SUBJECT>Delegation of authority to employees to issue subpoenas, etc.</SUBJECT> <P>(a) <E T="03">Authority to issue subpoenas.</E> Employees occupying or acting in the positions designated in paragraph (b) of this section shall have the power to issue subpoenas for (by countersigning VA Form 2-4003) and compel the attendance of witnesses within a radius of 100 miles from the place of hearing and to require the production of books, papers, documents, and other evidence. Issuing officials shall use discretion when exercising this power.</P> <P>(b) <E T="03">Designated positions.</E> The positions designated pursuant to paragraph (a) of this section are: General Counsel, Deputy General Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional Offices and Centers having insurance or regional office activities, Under Secretary for Health (for income matching programs), Director, Income Verification Match Center (for income matching programs), and the Associate Director for Operations, Income Verification Match Center (for income matching programs).</P> <P>(c) <E T="03">Means of service.</E> Subpoenas issued pursuant to this section may be served by registered or certified mail, return receipt requested, addressed to the witness only. Personal service by any VA employee or other authorized person may be made where authorized in writing by the issuing official.</P> <P>(d) <E T="03">Fees and mileage; district courts of the United States.</E> Any person required by such subpoena to attend as a witness shall be allowed and paid the same fees and mileage as are paid witnesses in the district courts of the United States. In case of disobedience to any such subpoena, the aid of any district court of the United States may be invoked in requiring attendance and testimony of witnesses and the production of documentary evidence, and such court within the jurisdiction in which the inquiry is carried on may, in the case of contumacy or refusal to obey a subpoena issued to any officer, agent, or employee of any corporation or to any other person, issue an order requiring such corporation or other person to appear or to give evidence touching the matter in question, and any failure to obey such order of the court may be <PRTPAGE P="135"/>punished by such court as a contempt thereof.</P> <SECAUTH>(Authority: 38 U.S.C.A. 501, 5711)</SECAUTH> <CITA>[60 FR 40757, Aug. 10, 1995. Redesignated at 64 FR 47111, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.3</SECTNO> <SUBJECT>Delegation of authority to employees to take affidavits, to administer oaths, etc.</SUBJECT> <P>(a) An employee to whom authority is delegated by the Secretary in accordance with 38 U.S.C. 5711, or to whom authority was delegated by the Secretary in accordance with title III, Pub. L. 844, 74th Congress, section 616, Pub. L. 801, 76th Congress, and section 1211, Pub. L. 85-56, is by virtue of such delegated authority, until such authority is revoked or otherwise terminated, empowered to take affidavits, to administer oaths and affirmations, to aid claimants in the preparation and presentation of claims, and to make investigations, examine witnesses, and certify to the correctness of papers and documents upon any matter within the jurisdiction of the Department of Veterans Affairs. Such employee is not authorized to administer oaths in connection with the execution of affidavits relative to fiscal vouchers and is not authorized to take acknowledgments to policy loan agreements and applications for cash surrender value to United States Government life insurance and National Service life insurance.</P> <P>(b) Any such oath, affirmation, affidavit, or examination, when certified under the hand of any such employee by whom it was administered or taken and authenticated by the seal of the Department of Veterans Affairs, may be offered or used in any court of the United States and, without further proof of the identity or authority of such employee, shall have like force and effect as if administered or taken before a clerk of such court.</P> <P>(c) The delegated authority from the Secretary to employees to take affidavits, to administer oaths, etc., will be evidenced by VA Form 4505 series.</P> <CITA>[24 FR 10018, Dec. 11, 1959. Redesignated at 64 FR 47111, Aug. 30, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.4</SECTNO> <SUBJECT>Delegation of authority to order paid advertising for use in recruitment.</SUBJECT> <P>Paid advertisements may be used in recruitment for VA competitive and excepted service positions. Authority to order such advertisements is hereby delegated to Administration Heads, Assistant Secretaries, Other Key Officials (the General Counsel; the Inspector General; the Chairman, Board of Veterans' Appeals; the Chairman, Board of Contract Appeals; and the Director, Office of Small and Disadvantaged Business Utilization), Deputy Assistant Secretaries, to the deputies of such officials, to the Deputy Assistant Secretary and Associate Deputy Assistant Secretary for Human Resources Management, and to field facility Directors.</P> <SECAUTH>(Authority: 5 U.S.C. 302(b)(2); 44 U.S.C. 3702)</SECAUTH> <CITA>[61 FR 20134, May 6, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.5</SECTNO> <SUBJECT>Delegation of authority to certify copies of documents, records, or papers in Department of Veterans Affairs files.</SUBJECT> <P>(a) Persons occupying or acting for the following positions in the Office of the General Counsel are authorized to certify copies of public documents, records, or papers belonging to or in the files of the Department of Veterans Affairs for the purposes of 38 U.S.C. 302: General Counsel, Deputy General Counsel, Assistant General Counsel, Deputy Assistant General Counsel, and the Regional Counsel for Puerto Rico.</P> <P>(b) The person occupying or acting in the position of Chairman of the Department of Veterans Affairs Board of Contract Appeals is authorized to certify copies of decisions, orders, subpoenas, and other documents, records, or papers issued by, belonging to, or in the files of the Boards for the purposes of 38 U.S.C. 302.</P> <P>(c) The person occupying or acting in the position of Chairman, Board of Veterans Apeals, is authorized to certify copies of decisions, orders, subpoenas, and other documents, records, or papers issued by, belonging to, or in the <PRTPAGE P="136"/>files of the Board for the purposes of 38 U.S.C. 302.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[46 FR 18978, Mar. 27, 1981, as amended at 49 FR 30692, Aug. 1, 1984; 60 FR 48029, Sept. 18, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.6</SECTNO> <SUBJECT>Secretary's delegations of authority to certain officials (38 U.S.C. 512).</SUBJECT> <P>Employees occupying or acting in the positions designated below are delegated authority as indicated:</P> <P>(a) <E T="03">Veterans Health Administration.</E> The Under Secretary for Health is delegated authority:</P> <P>(1) To act on all matters assigned to the Veterans Health Administration by statute (38 U.S.C. Ch. 73) and by regulation, except such matters as require the personal attention or action of the Secretary.</P> <P>(2) To revise, exceed, delete, increase, or decrease fees contained in Department of Veterans Affairs Veterans Health Services and Research Administration Manual M-1, part I, appendix A (following agreement therefor as provided in the contract with the intermediary involved), in an approved State fee schedule, and to add additional fees when found to be necessary, provided such fees are not in excess of those customarily charged the general public, in the community concerned, for the same service.</P> <P>(3) To designate the Deputy Under Secretary for Health, or other physician of the Veterans Health Administration, and authority is hereby delegated such designee to perform the functions prescribed in paragraph (a)(2) of this section.</P> <P>(4) To revise, exceed, delete, increase or decrease dental fees established in Department of Veterans Affairs Veterans Health Services and Research Administration Manual M-4, chapter 6, and any amendments thereto, and to add additional fees when found to be necessary, provided: such fees are not in excess of those customarily charged the general public, in the community concerned, for the same service.</P> <P>(5) To designate the Assistant Chief Medical Director for Dentistry, and authority is hereby delegated such designee, to perform the functions prescribed in paragraph (a)(4) of this section.</P> <P>(6) To supervise programs for grants to the Republic of the Philippines and medical care for Commonwealth Army veterans and Philippine Scouts in Veterans Memorial Medical Center, Manila, pursuant to the provisions of 38 U.S.C. ch. 17, subch. IV.</P> <P>(7) To designate the Deputy Under Secretary for Health of the Veterans Health Administration and authority is hereby delegated such designee to designate a Department of Veterans Affairs full-time physician or nonmedical Director to serve <E T="03">as an ex officio member</E> on advisory bodies to State Comprehensive Health Planning agencies and to individual Regional Medical Programs in those areas in which there is located one or more Department of Veterans Affairs hospitals or other health facilities, who shall serve on such advisory group as the representative of the Department of Veterans Affairs health facilities located in that area.</P> <P>(8) To authorize Directors of Department of Veterans Affairs property and facilities under the charge and control of the Department of Veterans Affairs to appoint police officers with the power to enforce Federal laws and Department of Veterans Affairs regulations, to investigate violations of those laws and to arrest for crimes committed on Department of Veterans Affairs property to the full extent provided by Department policies and procedures. </P> <PARAUTH>(Authority: 38 U.S.C. 501 and 512)</PARAUTH> <P>(9) To develop and establish minimum safety and quality standards for adaptive equipment provided under chapter 39 of title 38, United States Code, or to appoint a designee to perform these functions.</P> <P>(b) <E T="03">Veterans Benefits Administration—</E>(1) <E T="03">General.</E> The Under Secretary for Benefits is delegated authority to act on all matters assigned to the Veterans Benefits Administration except as provided in § 1.771 of this chapter and to authorize supervisory or adjudicative personnel within his/her jurisdiction to perform such functions as may be assigned.<PRTPAGE P="137"/> </P> <P>(2) <E T="03">Philippines.</E> The Director, Department of Veterans Affairs Regional Office, Manila, Philippines, is delegated authority to exercise such authorities as are delegated to directors of regional offices in the United States, which are appropriate to the administration in the Republic of the Philippines of the laws administered by the Department of Veterans Affairs.</P> <P>(c) <E T="03">Office of Finance and Information Resources Management.</E> (1) The Assistant Secretary for Finance and Information Resources Management (Chief Financial Officer) is delegated authority to act on all matters assigned to his/her office, and to authorize supervisory personnel within his/her jurisdiction to perform such functions as may be assigned. Appropriate written notification will be furnished other Federal agencies concerning such authorizations.</P> <P>(2) The Assistant Secretary for Finance and Information Resources Management (Chief Financial Officer) is delegated authority under 31 U.S.C. 1553(c)(1), to approve, in a fixed appropriation account to which the period of availability for obligation has expired, obligational increases related to contract changes when such transaction will cause cumulative obligational increase for contract changes during a fiscal year to exceed $4 million but not more than $25 million; for this responsibility the Assistant Secretary for Finance and Information Resources Management (Chief Financial Officer) shall act as a member of the Office of the Secretary and shall report to and consult with the Secretary on these matters.</P> <P>(d) Administration heads and staff office directors. Authority is delegated to the head of each administration and the director of each staff office, and to any officer or board designated by them, to take appropriate action (other than provided for in paragraph (e)(4)) in connection with the collection of civil claims by VA for money or property, as authorized in § 1.900, <E T="03">et seq.</E> </P> <P>(e) <E T="03">General Counsel.</E> (1) [Reserved]</P> <P>(2) Under the provisions of 38 U.S.C. 515(b), the General Counsel, Deputy General Counsel, Assistant General Counsel and Regional Counsel, or those authorized to act for them, are authorized to consider, ascertain, adjust, determine, and settle tort claims cognizable thereunder and to execute an appropriate voucher and other necessary instruments in connection with the final disposition of such claims.</P> <P>(3) Under the provisions of “The Federal Medical Care Recovery Act,” 42 U.S.C. 2651, <E T="03">et seq.</E> (as implemented by part 43, title 28, Code of Federal Regulations), authority is delegated to the General Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group I), Deputy Assistant General Counsel of said staff group, and Regional Counsels or those authorized to act for them, to collect in full, compromise, settle, or waive any claim and execute the release thereof; however, claims in excess of $100,000 may be compromised, settled, or waived only with the prior approval of the Department of Justice.</P> <P>(4) <E T="03">General Counsel.</E> Under the Federal Claims Collection Act of 1966, 31 U.S.C. 3711, <E T="03">et seq.</E>, authority is delegated to the General Counsel, Deputy General Counsel, Assistant General Counsel, Deputy Assistant General Counsel and Regional Counsel, or those authorized to act for them, to:</P> <P>(i) Make appropriate determinations with respect to the litigative probabilities of a claim (§ 1.932 of this chapter), the legal merits of a claim (§ 1.942(e) of this chapter), and any other legal considerations of a claim.</P> <P>(ii) Collect in full a claim involving damage to or loss of government property under the jurisdiction of the Department of Veterans Affairs resulting from negligence or other legal wrong of a person (other than an employee of the Government while acting within the scope of his or her employment) and to compromise, suspend, or terminate any such claim not exceeding $100,000.</P> <P>(iii) Collect a claim in full from an individual or legal entity who is liable for the cost of hospital, medical, surgical, or dental care and treatment of a person, and to compromise, suspend, or terminate any such claim not exceeding $100,000. </P> <PARAUTH>(Authority: Pub. L. 101-552, section 8(b))</PARAUTH> <P>(iv) The delegations of authority set forth in paragraphs (e)(4)(ii) and (iii) of <PRTPAGE P="138"/>this section do not apply to the handling of any claim as to which there is an indication of fraud, the presentation of a false claim or misrepresentation on the part of the debtor or any other party having an interest in the claim, or to any claim based in whole or in part on conduct in violation of the antitrust laws. Such cases will be considered by the General Counsel, who will make the determination in all instances as to whether the case warrants referral to the Department of Justice. The delegations of authority are applicable to those claims where the Department of Justice determines that action based upon the alleged fraud, false claim, or misrepresentation is not warranted.</P> <P>(5) Pursuant to the provisions of the Military Personnel and Civilian Employees’ Claim Act of 1964, 31 U.S.C. 3721, as amended, the General Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group III), Deputy Assistant General Counsel of said staff group, and Regional Counsel or those authorized to act for them, are authorized to settle and pay a claim for not more than $40,000 made by a civilian officer or employee of the Department of Veterans Affairs for damage to, or loss of, personal property incident to his or her service. (Pub. L. 97-226)</P> <P>(6) Under the provisions of 38 U.S.C. 7316(e), authority is delegated to the General Counsel, Deputy General Counsel, and the Assistant General Counsel (Professional Staff Group I) to hold harmless or provide liability insurance for any person to whom the immunity provisions of section 7316 apply, for damage for personal injury or death, or for property damage, negligently caused by such person while furnishing medical care or treatment in the exercise of his or her duties in or for the Veterans Health Administration, if such person is assigned to a foreign country, detailed to State or political division thereof, or is acting under any other circumstances which would preclude the remedies of an injured third person against the United States, provided by sections 1346(b) and 2672 of title 28, United States Code, for such damage or injury.</P> <P>(7) The General Counsel, Deputy General Counsel, and those authorized to act for them, are authorized to conduct investigations, examine witnesses, take affidavits, administer oaths and affirmations, and certify copies of public or private documents on all matters within the jurisdiction of the General Counsel. Pursuant to the provisions of § 2.2(c), the General Counsel, Deputy General Counsel, and those authorized to act for them, are authorized to countersign VA Form 4505.</P> <P>(8) The General Counsel, or the Deputy General Counsel acting as or for the General Counsel, is authorized to designate, in accordance with established standards, those legal opinions of the General Counsel which will be considered precedent opinions involving veterans’ benefits under laws administered by the Department of Veterans Affairs. </P> <PARAUTH>(Authority: 38 U.S.C. 501, 512)</PARAUTH> <P>(9) Under the provisions of 38 U.S.C. 1729(c)(1), authority is delegated to the General Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group I), Deputy Assistant General Counsel of said staff group, and Regional Counsel, or those authorized to act for them, to collect in full, compromise, settle, or waive any claim and execute the release thereof; however, claims in excess of $100,000 may only be compromised, settled, or waived with the prior approval of the General Counsel, Deputy General Counsel, Assistant General Counsel (Professional Staff Group I), or Deputy Assistant General Counsel of said staff group, or those authorized to act for them. </P> <PARAUTH>(Authority: 38 U.S.C. 1729(c)(1))</PARAUTH> <P>(10) The General Counsel and the Deputy General Counsel are authorized to make final Departmental decisions on appeals under the Freedom of Information Act, the Privacy Act, 38 U.S.C. 5701 and 5705. </P> <PARAUTH>(Authority: 38 U.S.C. 512)</PARAUTH> <P>(11) All authority delegated in this paragraph to Regional Counsels will be <PRTPAGE P="139"/>exercised by them under the supervision of and in accordance with instructions issued by the General Counsel.</P> <P>(f) <E T="03">National Cemetery Administration.</E> Under Secretary for Memorial Affairs is delegated authority:</P> <P>(1) To act on all matters assigned to the National Cemetery Administration by statute (38 U.S.C. chapter 24) and by regulation except where specifically requiring the personal attention or action of the Secretary and to authorize supervisory personnel within the jurisdiction of the Under Secretary for Memorial Affairs, to perform such functions as may be assigned.</P> <P>(2) To designate, as deemed necessary, Superintendents of National Cemeteries as special investigators under 38 U.S.C. 901, however, such law enforcement authority is limited to enforcement of rules and regulations governing conduct on property under the charge and control of the Department of Veterans Affairs, as those rules and regulations apply to the cemetery over which the individual Superintendent exercises control and jurisdiction. Such designation will not authorize the carrying of firearms by any Superintendent.</P> <P>(3) To accept donations of a minor nature, such as, individual trees for planting in burial areas and privately purchased grave markers.</P> <P>(4) To name features in national cemeteries, such as, roads, walks, and special structures.</P> <P>(5) To establish policies and specifications for inscriptions on Government headstones, markers, and private monuments. </P> <PARAUTH>(Authority: 38 U.S.C. 501, 512, 2404)</PARAUTH> <P>(g) <E T="03">Inspector General.</E> (1) The Secretary delegates to the Inspector General, the authority, as head of the Department of Veterans Affairs, to make written requests under the Privacy Act of 1974, 5 U.S.C. 552a(b)(7), for the transfer of records or copies of records maintained by other agencies which are necessary to carry out an authorized law enforcement activity of the Office of Inspector General. This delegation is made pursuant to 38 U.S.C. 512. The Inspector General may redelegate the foregoing authority within the Office of Inspector General, but the delegation may only be to an official of sufficient rank to ensure that the request for the records has been the subject of a high level evaluation of the need for the information.</P> <P>(2) The Inspector General delegates the authority under the Inspector General Act of 1978, and redelegates the authority under paragraph (a) of this section, to request Privacy Act-protected records from Federal agencies pursuant to subsection (b)(7) of the Privacy Act to each of the following Office of Inspector General officials: (i) Deputy Inspector General, (ii) Assistant Inspector General for Investigations, (iii) Deputy Assistant Inspector General for Investigations, (iv) Chief of Operations, and (v) Special Agents in Charge of Field Offices of Investigations. These officials may not redelegate this authority. </P> <PARAUTH>(Authority: 5 U.S.C. 552a)</PARAUTH> <P>(h) <E T="03">Delegations to Office Resolution Management Officials (ORM).</E> (1) The Deputy Assistant Secretary for Resolution Management is delegated authority to supervise and control the operation of the administrative EEO Discrimination Complaint Processing System within the Department.</P> <P>(2) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and all Regional EEO Officers/Field Managers are delegated authority to make procedural agency decisions to either accept or dismiss, in whole or in part, EEO discrimination complaints based upon race, color, national origin, sex, religion, age, disability, or reprisal filed by employees, former employees, or applicants for employment.</P> <P>(3) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to make agency decisions on all breach of settlement claims raised by employees, former employees, and applicants for employment.</P> <P>(4) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to consider and resolve all claims <PRTPAGE P="140"/>raised by employees, former employees, and applicants for employment that allege dissatisfaction with the processing of a previously filed EEO discrimination complaint.</P> <P>(5) The Deputy Assistant Secretary for Resolution Management, the Chief Operating Officer, and the Chief, Policy and Compliance are delegated authority to monitor compliance by Department organizational components with orders and decisions of the OEDCA and the EEOC.</P> <P>(i) <E T="03">Delegations to officials of the Office of Employment Discrimination Complaint Adjudication (OEDCA).</E>(1) The Director and Associate Director, OEDCA, are delegated authority to make procedural decisions to dismiss, in whole or in part, any EEO discrimination complaint filed by any employee, former employee, or applicant for employment that may be pending before OEDCA, where administrative complaint processing efficiency may be best served by doing so.</P> <P>(2) The Director and Associate Director, OEDCA, are delegated authority to dismiss, in whole or in part any EEO discrimination complaint based upon race, color, religion, sex, national origin, age, disability, or reprisal filed by any ORM employee, former employee, or applicant for employment.</P> <P>(3) The Director and Associate Director, OEDCA, are delegated authority to make the agency decision on all breach of settlement claims raised by ORM employees, former employees, and applicants for employment.</P> <P>(4) The Director and Associate Director, OEDCA, are delegated authority to consider and resolve all claims raised by ORM employees, former employees, and applicants for employment that allege dissatisfaction with the processing of a previously filed EEO discrimination complaint.</P> <P>(5) The Director and Associate Director, OEDCA, are delegated authority to make procedural agency decisions to either accept or dismiss, in whole or in part, EEO discrimination complaints filed by employees, former employees, or applicants for employment where the ORM must recuse itself from a case due to an actual, apparent, or potential conflict of interest.</P> <P>(j) <E T="03">Delegation to the Chairman, Board of Contract Appeals.</E> In cases where OEDCA has recused itself from a case due to an actual, apparent, or potential conflict of interest, the Chairman, Board of Contract Appeals, is delegated authority to make procedural agency decisions to dismiss, in whole or in part, EEO discrimination complaints filed by agency employees, former employees, and applicants for employment; to make substantive final agency decisions where complainants do not request an EEOC hearing; and to take agency action following a decision by an EEOC Administrative Judge.</P> <P>(k) <E T="03">Processing complaints involving certain officials.</E> A complaint alleging that the Secretary or the Deputy Secretary personally made a decision directly related to matters in dispute, or are otherwise personally involved in such matters, will be referred for procedural acceptability review, investigation, and substantive decisionmaking to another Federal agency (e.g., The Department of Justice) pursuant to a cost reimbursement agreement. Referral will not be made when the action complained of relates merely to ministerial involvement in such matters (e.g., ministerial approval of selection recommendations submitted to the Secretary by the Under Secretary for Health, the Under Secretary for Benefits, the Under Secretary for Memorial Affairs, assistant secretaries, or staff office heads).</P> <P>(l) <E T="03">Assistant to the Secretary, Office of Regulation Policy and Management.</E> The Assistant to the Secretary for Regulation Policy and Management (ASRPM) is delegated authority:</P> <P>(1) To act on all matters assigned to the Office of Regulation Policy and Management, except such matters as require the personal attention or action of the Secretary or the Secretary's Regulatory Policy Council.</P> <P>(2) To manage and coordinate the Department's rulemaking activities, including the revision and reorganization of regulations.</P> <P>(3) To serve as the Regulatory Policy Officer for the Department's rulemaking activities in accordance with Executive Order 12866.</P> <SECAUTH>(Authority: 38 U.S.C. 501, 512)</SECAUTH> <CITA>[25 FR 11095, Nov. 23, 1960]</CITA> <EDNOTE> <PRTPAGE P="141"/> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 2.6, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 2.7</SECTNO> <SUBJECT>Delegation of authority to provide relief on account of administrative error.</SUBJECT> <P>(a) Section 503(a) of title 38 U.S.C., provides that if the Secretary determines that benefits administered by the Department of Veterans Affairs have not been provided by reason of administrative error on the part of the Federal Government or any of its employees, the Secretary is authorized to provide such relief on account of such error as the Secretary determines equitable, including the payment of moneys to any person whom he determines equitably entitled thereto.</P> <P>(b) Section 503(b) of title 38 U.S.C., provides that if the Secretary determines that any veteran, surviving spouse, child of a veteran, or other person, has suffered loss, as a consequence of reliance upon a determination by the Department of Veterans Affairs of eligibility or entitlement to benefits, without knowledge that it was erroneously made, the Secretary is authorized to provide such relief as the Secretary determines equitable, including the payment of moneys to any person equitably entitled thereto. The Secretary is also required to submit an annual report to the Congress, containing a brief summary of each recommendation for relief and its disposition. Preparation of the report shall be the responsibility of the General Counsel.</P> <P>(c) The authority to grant the equitable relief, referred to in paragraphs (a) and (b) of this section, has not been delegated and is reserved to the Secretary. Recommendation for the correction of administrative error and for appropriate equitable relief therefrom will be submitted to the Secretary, through the General Counsel. Such recommendation may be initiated by the head of the administration having responsibility for the benefit, or of any concerned staff office, or by the Chairman, Board of Veterans Appeals. When a recommendation for relief under paragraph (a) or (b) of this section is initiated by the head of a staff office, or the Chairman, Board of Veterans Appeals, the views of the head of the administration having responsibility for the benefit will be obtained and transmitted with the recommendation of the initiating office.</P> <SECAUTH>(Authority: 38 U.S.C. 503, 512)</SECAUTH> <CITA>[37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54 FR 34981, Aug. 23, 1989; 68 FR 25504, May 13, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 2.8</SECTNO> <SUBJECT>Delegation of authority to authorize allowances for Department of Veterans Affairs employees who are notaries public.</SUBJECT> <P>(a) Employees occupying or acting in the positions designated in paragraph (b) of this section are authorized to designate those employees who are required to serve as notaries public in connection with the performance of official business and to pay an allowance for the costs therefor not to exceed the expense required to be incurred by them in order to obtain their commission. </P> <PARAUTH>(Authority: 5 U.S.C. 5945)</PARAUTH> <P>(b) Designated positions: Deputy Secretary, Under Secretary for Benefits, Director, Office of Data Management and Telecommunications, Chief Medical Director, General Counsel, Directors of regional offices, hospitals, domiciliaries, and centers.</P> <CITA>[35 FR 13771, Aug. 29, 1970, as amended at 49 FR 30693, Aug. 1, 1984]</CITA> </SECTION> </PART> <PART> <EAR>Pt. 3</EAR> <HD SOURCE="HED">PART 3—ADJUDICATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECHD>Sec.</SECHD> <SECTNO>3.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>3.2</SECTNO> <SUBJECT>Periods of war.</SUBJECT> <SECTNO>3.3</SECTNO> <SUBJECT>Pension.</SUBJECT> <SECTNO>3.4</SECTNO> <SUBJECT>Compensation.</SUBJECT> <SECTNO>3.5</SECTNO> <SUBJECT>Dependency and indemnity compensation.</SUBJECT> <SECTNO>3.6</SECTNO> <SUBJECT>Duty periods.</SUBJECT> <SECTNO>3.7</SECTNO> <SUBJECT>Individuals and groups considered to have performed active military, naval, or air service.</SUBJECT> <SECTNO>3.10</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.11</SECTNO> <SUBJECT>Homicide.</SUBJECT> <SECTNO>3.12</SECTNO> <SUBJECT>Character of discharge.</SUBJECT> <SECTNO>3.12a</SECTNO> <SUBJECT>Minimum active-duty service requirement.<PRTPAGE P="142"/> </SUBJECT> <SECTNO>3.13</SECTNO> <SUBJECT>Discharge to change status.</SUBJECT> <SECTNO>3.14</SECTNO> <SUBJECT>Validity of enlistments.</SUBJECT> <SECTNO>3.15</SECTNO> <SUBJECT>Computation of service.</SUBJECT> <SECTNO>3.16</SECTNO> <SUBJECT>Service pension.</SUBJECT> <SECTNO>3.17</SECTNO> <SUBJECT>Disability and death pension; Mexican border period and later war periods.</SUBJECT> <SECTNO>3.18-3.19</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.20</SECTNO> <SUBJECT>Surviving spouse's benefit for month of veteran's death.</SUBJECT> <SECTNO>3.21</SECTNO> <SUBJECT>Monetary rates.</SUBJECT> <SECTNO>3.22</SECTNO> <SUBJECT>DIC benefits for survivors of certain veterans rated totally disabled at time of death.</SUBJECT> <SECTNO>3.23</SECTNO> <SUBJECT>Improved pension rates—Veterans and surviving spouses.</SUBJECT> <SECTNO>3.24</SECTNO> <SUBJECT>Improved pension rates—Surviving children.</SUBJECT> <SECTNO>3.25</SECTNO> <SUBJECT>Parents’ dependency and indemnity compensation (DIC)—Method of payment computation.</SUBJECT> <SECTNO>3.26</SECTNO> <SUBJECT>Section 306 and old-law pension annual income limitations.</SUBJECT> <SECTNO>3.27</SECTNO> <SUBJECT>Automatic adjustment of benefit rates.</SUBJECT> <SECTNO>3.28</SECTNO> <SUBJECT>Automatic adjustment of section 306 and old-law pension income limitations.</SUBJECT> <SECTNO>3.29</SECTNO> <SUBJECT>Rounding.</SUBJECT> <SECTNO>3.30</SECTNO> <SUBJECT>Frequency of payment of improved pension and parents’ dependency and indemnity compensation (DIC).</SUBJECT> <SECTNO>3.31</SECTNO> <SUBJECT>Commencement of the period of payment.</SUBJECT> <SECTNO>3.32</SECTNO> <SUBJECT>Exchange rates for foreign currencies.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>3.40</SECTNO> <SUBJECT>Philippine and Insular Forces.</SUBJECT> <SECTNO>3.41</SECTNO> <SUBJECT>Philippine service.</SUBJECT> <SECTNO>3.42</SECTNO> <SUBJECT>Compensation at the full-dollar rate for certain Filipino veterans residing in the United States.</SUBJECT> <SECTNO>3.43</SECTNO> <SUBJECT>Burial benefits at the full-dollar rate for certain Filipino veterans residing in the United States on the date of death.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Relationship</HD> <SECTNO>3.50</SECTNO> <SUBJECT>Spouse and surviving spouse.</SUBJECT> <SECTNO>3.52</SECTNO> <SUBJECT>Marriages deemed valid.</SUBJECT> <SECTNO>3.53</SECTNO> <SUBJECT>Continuous cohabitation.</SUBJECT> <SECTNO>3.54</SECTNO> <SUBJECT>Marriage dates.</SUBJECT> <SECTNO>3.55</SECTNO> <SUBJECT>Reinstatement of benefits eligibility based upon terminated marital relationships.</SUBJECT> <SECTNO>3.56</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.57</SECTNO> <SUBJECT>Child.</SUBJECT> <SECTNO>3.58</SECTNO> <SUBJECT>Child adopted out of family.</SUBJECT> <SECTNO>3.59</SECTNO> <SUBJECT>Parent.</SUBJECT> <SECTNO>3.60</SECTNO> <SUBJECT>Definition of “living with”.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Administrative</HD> <SECTNO>3.100</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> <SECTNO>3.102</SECTNO> <SUBJECT>Reasonable doubt.</SUBJECT> <SECTNO>3.103</SECTNO> <SUBJECT>Procedural due process and appellate rights.</SUBJECT> <SECTNO>3.104</SECTNO> <SUBJECT>Finality of decisions.</SUBJECT> <SECTNO>3.105</SECTNO> <SUBJECT>Revision of decisions.</SUBJECT> <SECTNO>3.106</SECTNO> <SUBJECT>Renouncement.</SUBJECT> <SECTNO>3.107</SECTNO> <SUBJECT>Awards where not all dependents apply.</SUBJECT> <SECTNO>3.108</SECTNO> <SUBJECT>State Department as agent of Department of Veterans Affairs.</SUBJECT> <SECTNO>3.109</SECTNO> <SUBJECT>Time limit.</SUBJECT> <SECTNO>3.110</SECTNO> <SUBJECT>Computation of time limit.</SUBJECT> <SECTNO>3.111</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.112</SECTNO> <SUBJECT>Fractions of one cent.</SUBJECT> <SECTNO>3.114</SECTNO> <SUBJECT>Change of law or Department of Veterans Affairs issue.</SUBJECT> <SECTNO>3.115</SECTNO> <SUBJECT>Access to financial records.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Claims</HD> <SECTNO>3.150</SECTNO> <SUBJECT>Forms to be furnished.</SUBJECT> <SECTNO>3.151</SECTNO> <SUBJECT>Claims for disability benefits.</SUBJECT> <SECTNO>3.152</SECTNO> <SUBJECT>Claims for death benefits.</SUBJECT> <SECTNO>3.153</SECTNO> <SUBJECT>Claims filed with Social Security.</SUBJECT> <SECTNO>3.154</SECTNO> <SUBJECT>Injury due to hospital treatment, etc.</SUBJECT> <SECTNO>3.155</SECTNO> <SUBJECT>Informal claims.</SUBJECT> <SECTNO>3.156</SECTNO> <SUBJECT>New and material evidence.</SUBJECT> <SECTNO>3.157</SECTNO> <SUBJECT>Report of examination or hospitalization as claim for increase or to reopen.</SUBJECT> <SECTNO>3.158</SECTNO> <SUBJECT>Abandoned claims.</SUBJECT> <SECTNO>3.159</SECTNO> <SUBJECT>Department of Veterans Affairs assistance in developing claims.</SUBJECT> <SECTNO>3.160</SECTNO> <SUBJECT>Status of claims.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence Requirements</HD> <SECTNO>3.200</SECTNO> <SUBJECT>Testimony certified or under oath.</SUBJECT> <SECTNO>3.201</SECTNO> <SUBJECT>Exchange of evidence; Social Security and Department of Veterans Affairs.</SUBJECT> <SECTNO>3.202</SECTNO> <SUBJECT>Evidence from foreign countries.</SUBJECT> <SECTNO>3.203</SECTNO> <SUBJECT>Service records as evidence of service and character of discharge.</SUBJECT> <SECTNO>3.204</SECTNO> <SUBJECT>Evidence of dependents and age.</SUBJECT> <SECTNO>3.205</SECTNO> <SUBJECT>Marriage.</SUBJECT> <SECTNO>3.206</SECTNO> <SUBJECT>Divorce.</SUBJECT> <SECTNO>3.207</SECTNO> <SUBJECT>Void or annulled marriage.</SUBJECT> <SECTNO>3.208</SECTNO> <SUBJECT>Claims based on attained age.</SUBJECT> <SECTNO>3.209</SECTNO> <SUBJECT>Birth.</SUBJECT> <SECTNO>3.210</SECTNO> <SUBJECT>Child's relationship.</SUBJECT> <SECTNO>3.211</SECTNO> <SUBJECT>Death.</SUBJECT> <SECTNO>3.212</SECTNO> <SUBJECT>Unexplained absence for 7 years.</SUBJECT> <SECTNO>3.213</SECTNO> <SUBJECT>Change of status affecting entitlement.</SUBJECT> <SECTNO>3.214</SECTNO> <SUBJECT>Court decisions; unremarried surviving spouses.</SUBJECT> <SECTNO>3.215</SECTNO> <SUBJECT>Termination of marital relationship or conduct.</SUBJECT> <SECTNO>3.216</SECTNO> <SUBJECT>Mandatory disclosure of social security numbers.</SUBJECT> <SECTNO>3.217</SECTNO> <SUBJECT>Submission of statements or information affecting entitlement to benefits.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Dependency, Income and Estate</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Regulations Applicable to Programs in Effect Prior to January <E T="01">1, 1979</E> </HD> <SECTNO>3.250</SECTNO> <SUBJECT>Dependency of parents; compensation.</SUBJECT> <SECTNO>3.251</SECTNO> <SUBJECT>Income of parents; dependency and indemnity compensation.</SUBJECT> <SECTNO>3.252</SECTNO> <SUBJECT>Annual income; pension; Mexican border period and later war periods.</SUBJECT> <SECTNO>3.253-3.255</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.256</SECTNO> <SUBJECT>Eligibility reporting requirements.</SUBJECT> <SECTNO>3.257</SECTNO> <SUBJECT>Children; no surviving spouse entitled.<PRTPAGE P="143"/> </SUBJECT> <SECTNO>3.258-3.259</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.260</SECTNO> <SUBJECT>Computation of income.</SUBJECT> <SECTNO>3.261</SECTNO> <SUBJECT>Character of income; exclusions and estates.</SUBJECT> <SECTNO>3.262</SECTNO> <SUBJECT>Evaluation of income.</SUBJECT> <SECTNO>3.263</SECTNO> <SUBJECT>Corpus of estate; net worth.</SUBJECT> <SECTNO>3.270</SECTNO> <SUBJECT>Applicability of various dependency, income and estate regulations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Regulations Applicable to the Improved Pension Program Which Became Effective January <E T="01">1, 1979</E> </HD> <SECTNO>3.271</SECTNO> <SUBJECT>Computation of income.</SUBJECT> <SECTNO>3.272</SECTNO> <SUBJECT>Exclusions from income.</SUBJECT> <SECTNO>3.273</SECTNO> <SUBJECT>Rate computation.</SUBJECT> <SECTNO>3.274</SECTNO> <SUBJECT>Relationship of net worth to pension entitlement.</SUBJECT> <SECTNO>3.275</SECTNO> <SUBJECT>Criteria for evaluating net worth.</SUBJECT> <SECTNO>3.276</SECTNO> <SUBJECT>Certain transfers or waivers disregarded.</SUBJECT> <SECTNO>3.277</SECTNO> <SUBJECT>Eligibility reporting requirements.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ratings and Evaluations; Basic Entitlement Considerations</HD> <SECTNO>3.300</SECTNO> <SUBJECT>Claims based on the effects of tobacco products.</SUBJECT> <SECTNO>3.301</SECTNO> <SUBJECT>Line of duty and misconduct.</SUBJECT> <SECTNO>3.302</SECTNO> <SUBJECT>Service connection for mental unsoundness in suicide.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ratings and Evaluations; Service Connection</HD> <SECTNO>3.303</SECTNO> <SUBJECT>Principles relating to service connection.</SUBJECT> <SECTNO>3.304</SECTNO> <SUBJECT>Direct service connection; wartime and peacetime.</SUBJECT> <SECTNO>3.305</SECTNO> <SUBJECT>Direct service connection; peacetime service before January 1, 1947.</SUBJECT> <SECTNO>3.306</SECTNO> <SUBJECT>Aggravation of preservice disability.</SUBJECT> <SECTNO>3.307</SECTNO> <SUBJECT>Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947.</SUBJECT> <SECTNO>3.308</SECTNO> <SUBJECT>Presumptive service connection; peacetime service before January 1, 1947.</SUBJECT> <SECTNO>3.309</SECTNO> <SUBJECT>Disease subject to presumptive service connection.</SUBJECT> <SECTNO>3.310</SECTNO> <SUBJECT>Proximate results, secondary conditions.</SUBJECT> <SECTNO>3.311</SECTNO> <SUBJECT>Claims based on exposure to ionizing radiation.</SUBJECT> <SECTNO>3.312</SECTNO> <SUBJECT>Cause of death.</SUBJECT> <SECTNO>3.313</SECTNO> <SUBJECT>Claims based on service in Vietnam.</SUBJECT> <SECTNO>3.314</SECTNO> <SUBJECT>Basic pension determinations.</SUBJECT> <SECTNO>3.315</SECTNO> <SUBJECT>Basic eligibility determinations; dependents, loans, education.</SUBJECT> <SECTNO>3.316</SECTNO> <SUBJECT>Claims based on chronic effects of exposure to mustard gas and Lewisite.</SUBJECT> <SECTNO>3.317</SECTNO> <SUBJECT>Compensation for certain disabilities due to undiagnosed illnesses.</SUBJECT> <SECTNO>3.318-3.320</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.321</SECTNO> <SUBJECT>General rating considerations.</SUBJECT> <SECTNO>3.322</SECTNO> <SUBJECT>Rating of disabilities aggravated by service.</SUBJECT> <SECTNO>3.323</SECTNO> <SUBJECT>Combined ratings.</SUBJECT> <SECTNO>3.324</SECTNO> <SUBJECT>Multiple noncompensable service-connected disabilities.</SUBJECT> <SECTNO>3.325</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.326</SECTNO> <SUBJECT>Examinations.</SUBJECT> <SECTNO>3.327</SECTNO> <SUBJECT>Reexaminations.</SUBJECT> <SECTNO>3.328</SECTNO> <SUBJECT>Independent medical opinions.</SUBJECT> <SECTNO>3.329</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.330</SECTNO> <SUBJECT>Resumption of rating when veteran subsequently reports for Department of Veterans Affairs examination.</SUBJECT> <SECTNO>3.331-3.339</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.340</SECTNO> <SUBJECT>Total and permanent total ratings and unemployability.</SUBJECT> <SECTNO>3.341</SECTNO> <SUBJECT>Total disability ratings for compensation purposes.</SUBJECT> <SECTNO>3.342</SECTNO> <SUBJECT>Permanent and total disability ratings for pension purposes.</SUBJECT> <SECTNO>3.343</SECTNO> <SUBJECT>Continuance of total disability ratings.</SUBJECT> <SECTNO>3.344</SECTNO> <SUBJECT>Stabilization of disability evaluations.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Ratings for Special Purposes</HD> <SECTNO>3.350</SECTNO> <SUBJECT>Special monthly compensation ratings.</SUBJECT> <SECTNO>3.351</SECTNO> <SUBJECT>Special monthly dependency and indemnity compensation, death compensation, pension and spouse's compensation ratings.</SUBJECT> <SECTNO>3.352</SECTNO> <SUBJECT>Criteria for determining need for aid and attendance and “permanently bedridden.”</SUBJECT> <SECTNO>3.353</SECTNO> <SUBJECT>Determinations of incompetency and competency.</SUBJECT> <SECTNO>3.354</SECTNO> <SUBJECT>Determinations of insanity.</SUBJECT> <SECTNO>3.355</SECTNO> <SUBJECT>Testamentary capacity for insurance purposes.</SUBJECT> <SECTNO>3.356</SECTNO> <SUBJECT>Conditions which determine permanent incapacity for self-support.</SUBJECT> <SECTNO>3.357</SECTNO> <SUBJECT>Civil service preference ratings.</SUBJECT> <SECTNO>3.358</SECTNO> <SUBJECT>Compensation for disability or death from hospitalization, medical or surgical treatment, examinations or vocational rehabilitation training (§ 3.800).</SUBJECT> <SECTNO>3.359</SECTNO> <SUBJECT>Determination of service connection for former members of the Armed Forces of Czechoslovakia or Poland.</SUBJECT> <SECTNO>3.360</SECTNO> <SUBJECT>Service-connected health-care eligibility of certain persons administratively discharged under other than honorable condition.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Rating Considerations Relative to Specific Diseases</HD> <SECTNO>3.370</SECTNO> <SUBJECT>Pulmonary tuberculosis shown by X-ray in active service.</SUBJECT> <SECTNO>3.371</SECTNO> <SUBJECT>Presumptive service connection for tuberculous disease; wartime and service on or after January 1, 1947.</SUBJECT> <SECTNO>3.372</SECTNO> <SUBJECT>Initial grant following inactivity of tuberculosis.</SUBJECT> <SECTNO>3.373</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.374</SECTNO> <SUBJECT>Effect of diagnosis of active tuberculosis.</SUBJECT> <SECTNO>3.375</SECTNO> <SUBJECT>Determination of inactivity (complete arrest) in tuberculosis.<PRTPAGE P="144"/> </SUBJECT> <SECTNO>3.376-3.377</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.378</SECTNO> <SUBJECT>Changes from activity in pulmonary tuberculosis pension cases.</SUBJECT> <SECTNO>3.379</SECTNO> <SUBJECT>Anterior poliomyelitis.</SUBJECT> <SECTNO>3.380</SECTNO> <SUBJECT>Diseases of allergic etiology.</SUBJECT> <SECTNO>3.381</SECTNO> <SUBJECT>Service connection of dental conditions for treatment purposes.</SUBJECT> <SECTNO>3.382</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.383</SECTNO> <SUBJECT>Special consideration for paired organs and extremities.</SUBJECT> <SECTNO>3.384</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.385</SECTNO> <SUBJECT>Disability due to impaired hearing.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Effective Dates</HD> <SECTNO>3.400</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.401</SECTNO> <SUBJECT>Veterans.</SUBJECT> <SECTNO>3.402</SECTNO> <SUBJECT>Surviving spouse.</SUBJECT> <SECTNO>3.403</SECTNO> <SUBJECT>Children.</SUBJECT> <SECTNO>3.404</SECTNO> <SUBJECT>Parents.</SUBJECT> <SECTNO>3.405</SECTNO> <SUBJECT>Filipino veterans; benefits at the full-dollar rate.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Apportionments</HD> <SECTNO>3.450</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.451</SECTNO> <SUBJECT>Special apportionments.</SUBJECT> <SECTNO>3.452</SECTNO> <SUBJECT>Situations when benefits may be apportioned.</SUBJECT> <SECTNO>3.453</SECTNO> <SUBJECT>Veterans compensation or service pension or retirement pay.</SUBJECT> <SECTNO>3.454</SECTNO> <SUBJECT>Veterans disability pension.</SUBJECT> <SECTNO>3.458</SECTNO> <SUBJECT>Veteran's benefits not apportionable.</SUBJECT> <SECTNO>3.459</SECTNO> <SUBJECT>Death compensation.</SUBJECT> <SECTNO>3.460</SECTNO> <SUBJECT>Death pension.</SUBJECT> <SECTNO>3.461</SECTNO> <SUBJECT>Dependency and indemnity compensation.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reductions and Discontinuances</HD> <SECTNO>3.500</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.501</SECTNO> <SUBJECT>Veterans.</SUBJECT> <SECTNO>3.502</SECTNO> <SUBJECT>Surviving spouses.</SUBJECT> <SECTNO>3.503</SECTNO> <SUBJECT>Children.</SUBJECT> <SECTNO>3.504</SECTNO> <SUBJECT>Parents; aid and attendance.</SUBJECT> <SECTNO>3.505</SECTNO> <SUBJECT>Filipino veterans; benefits at the full-dollar rate.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Hospitalization Adjustments</HD> <SECTNO>3.551</SECTNO> <SUBJECT>Reduction because of hospitalization.</SUBJECT> <SECTNO>3.552</SECTNO> <SUBJECT>Adjustment of allowance for aid and attendance.</SUBJECT> <SECTNO>3.553-3.555</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.556</SECTNO> <SUBJECT>Adjustment on discharge or release.</SUBJECT> <SECTNO>3.557</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.558</SECTNO> <SUBJECT>Resumption and payment of withheld benefits; incompetents with estates that equaled or exceeded statutory limit.</SUBJECT> <SECTNO>3.559</SECTNO> <SUBJECT>[Reserved]</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Adjustments and Resumptions</HD> <SECTNO>3.650</SECTNO> <SUBJECT>Rate for additional dependent.</SUBJECT> <SECTNO>3.651</SECTNO> <SUBJECT>Change in status of dependents.</SUBJECT> <SECTNO>3.652</SECTNO> <SUBJECT>Periodic certification of continued eligibility.</SUBJECT> <SECTNO>3.653</SECTNO> <SUBJECT>Foreign residence.</SUBJECT> <SECTNO>3.654</SECTNO> <SUBJECT>Active service pay.</SUBJECT> <SECTNO>3.655</SECTNO> <SUBJECT>Failure to report for Department of Veterans Affairs examination.</SUBJECT> <SECTNO>3.656</SECTNO> <SUBJECT>Disappearance of veteran.</SUBJECT> <SECTNO>3.657</SECTNO> <SUBJECT>Surviving spouse becomes entitled, or entitlement terminates.</SUBJECT> <SECTNO>3.658</SECTNO> <SUBJECT>Offsets; dependency and indemnity compensation.</SUBJECT> <SECTNO>3.659</SECTNO> <SUBJECT>Two parents in same parental line.</SUBJECT> <SECTNO>3.660</SECTNO> <SUBJECT>Dependency, income and estate.</SUBJECT> <SECTNO>3.661</SECTNO> <SUBJECT>Eligibility Verification Reports.</SUBJECT> <SECTNO>3.662-3.664</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.665</SECTNO> <SUBJECT>Incarcerated beneficiaries and fugitive felons—compensation.</SUBJECT> <SECTNO>3.666</SECTNO> <SUBJECT>Incarcerated beneficiaries and fugitive felons—pension.</SUBJECT> <SECTNO>3.667</SECTNO> <SUBJECT>School attendance.</SUBJECT> <SECTNO>3.668</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.669</SECTNO> <SUBJECT>Forfeiture.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Concurrent Benefits and Elections</HD> <SECTNO>3.700</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.701</SECTNO> <SUBJECT>Elections of pension or compensation.</SUBJECT> <SECTNO>3.702</SECTNO> <SUBJECT>Dependency and indemnity compensation.</SUBJECT> <SECTNO>3.703</SECTNO> <SUBJECT>Two parents in same parental line.</SUBJECT> <SECTNO>3.704</SECTNO> <SUBJECT>Elections within class of dependents.</SUBJECT> <SECTNO>3.705-3.706</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.707</SECTNO> <SUBJECT>Dependents’ educational assistance.</SUBJECT> <SECTNO>3.708</SECTNO> <SUBJECT>Federal Employees’ Compensation.</SUBJECT> <SECTNO>3.710</SECTNO> <SUBJECT>Civil service annuitants.</SUBJECT> <SECTNO>3.711</SECTNO> <SUBJECT>Improved pension elections.</SUBJECT> <SECTNO>3.712</SECTNO> <SUBJECT>Improved pension elections; surviving spouses of Spanish-American War veterans.</SUBJECT> <SECTNO>3.713</SECTNO> <SUBJECT>Effective dates of improved pension elections.</SUBJECT> <SECTNO>3.714</SECTNO> <SUBJECT>Improved pension elections—public assistance beneficiaries.</SUBJECT> <SECTNO>3.715</SECTNO> <SUBJECT>Radiation Exposure Compensation Act of 1990.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Retirement</HD> <SECTNO>3.750</SECTNO> <SUBJECT>Retirement pay.</SUBJECT> <SECTNO>3.751</SECTNO> <SUBJECT>Statutory awards; retired service personnel.</SUBJECT> <SECTNO>3.752</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.753</SECTNO> <SUBJECT>Public Health Service.</SUBJECT> <SECTNO>3.754</SECTNO> <SUBJECT>Emergency officers’ retirement pay.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Special Benefits</HD> <SECTNO>3.800</SECTNO> <SUBJECT>Disability or death due to hospitalization, etc.</SUBJECT> <SECTNO>3.801</SECTNO> <SUBJECT>Special acts.</SUBJECT> <SECTNO>3.802</SECTNO> <SUBJECT>Medal of Honor.</SUBJECT> <SECTNO>3.803</SECTNO> <SUBJECT>Naval pension.</SUBJECT> <SECTNO>3.804</SECTNO> <SUBJECT>Special allowance under 38 U.S.C. 1312.</SUBJECT> <SECTNO>3.805</SECTNO> <SUBJECT>Loan guaranty for surviving spouses; certification.</SUBJECT> <SECTNO>3.806</SECTNO> <SUBJECT>Death gratuity; certification.</SUBJECT> <SECTNO>3.807</SECTNO> <SUBJECT>Dependents’ educational assistance; certification.</SUBJECT> <SECTNO>3.808</SECTNO> <SUBJECT>Automobiles or other conveyances; certification.</SUBJECT> <SECTNO>3.809</SECTNO> <SUBJECT>Specially adapted housing under 38 U.S.C. 2101(a).</SUBJECT> <SECTNO>3.809a</SECTNO> <SUBJECT>Special home adaptation grants under 38 U.S.C. 2101(b).</SUBJECT> <SECTNO>3.810</SECTNO> <SUBJECT>Clothing allowance.<PRTPAGE P="145"/> </SUBJECT> <SECTNO>3.811</SECTNO> <SUBJECT>Minimum income annuity and gratuitous annuity.</SUBJECT> <SECTNO>3.812</SECTNO> <SUBJECT>Special allowance payable under section 156 of Pub. L. 97-377.</SUBJECT> <SECTNO>3.813</SECTNO> <SUBJECT>Interim benefits for disability or death due to chloracne or porphyria cutanea tarda.</SUBJECT> <SECTNO>3.814</SECTNO> <SUBJECT>Monetary allowance under 38 U.S.C. chapter 18 for an individual suffering from spina bifida whose biological father or mother is or was a Vietnam veteran.</SUBJECT> <SECTNO>3.815</SECTNO> <SUBJECT>Monetary allowance under 38 U.S.C. chapter 18 for an individual with disability from covered birth defects whose biological mother is or was a Vietnam veteran; identification of covered birth defects.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Incompetents, Guardianship and Institutional Awards</HD> <SECTNO>3.850</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.851</SECTNO> <SUBJECT>St. Elizabeths Hospital, Washington, DC.</SUBJECT> <SECTNO>3.852</SECTNO> <SUBJECT>Institutional awards.</SUBJECT> <SECTNO>3.853</SECTNO> <SUBJECT>Incompetents; estate over $25,000.</SUBJECT> <SECTNO>3.854</SECTNO> <SUBJECT>Limitation on payments for minor.</SUBJECT> <SECTNO>3.855</SECTNO> <SUBJECT>Beneficiary rated or reported incompetent.</SUBJECT> <SECTNO>3.856</SECTNO> <SUBJECT>Change of name of female fiduciary.</SUBJECT> <SECTNO>3.857</SECTNO> <SUBJECT>Children's benefits to fiduciary of surviving spouse.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Forfeiture</HD> <SECTNO>3.900</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>3.901</SECTNO> <SUBJECT>Fraud.</SUBJECT> <SECTNO>3.902</SECTNO> <SUBJECT>Treasonable acts.</SUBJECT> <SECTNO>3.903</SECTNO> <SUBJECT>Subversive activities.</SUBJECT> <SECTNO>3.904</SECTNO> <SUBJECT>Effect of forfeiture after veteran's death.</SUBJECT> <SECTNO>3.905</SECTNO> <SUBJECT>Declaration of forfeiture or remission of forfeiture.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Protection</HD> <SECTNO>3.950</SECTNO> <SUBJECT>Helpless children; Spanish-American and prior wars.</SUBJECT> <SECTNO>3.951</SECTNO> <SUBJECT>Preservation of disability ratings.</SUBJECT> <SECTNO>3.952</SECTNO> <SUBJECT>Protected ratings.</SUBJECT> <SECTNO>3.953</SECTNO> <SUBJECT>Pub. L. 85-56 and Pub. L. 85-857.</SUBJECT> <SECTNO>3.954</SECTNO> <SUBJECT>Burial allowance.</SUBJECT> <SECTNO>3.955-3.956</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.957</SECTNO> <SUBJECT>Service connection.</SUBJECT> <SECTNO>3.958</SECTNO> <SUBJECT>Federal employees’ compensation cases.</SUBJECT> <SECTNO>3.959</SECTNO> <SUBJECT>Tuberculosis.</SUBJECT> <SECTNO>3.960</SECTNO> <SUBJECT>Section 306 and old-law pension protection.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Accrued</HD> <SECTNO>3.1000</SECTNO> <SUBJECT>Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon death of a beneficiary.</SUBJECT> <SECTNO>3.1001</SECTNO> <SUBJECT>Hospitalized competent veterans.</SUBJECT> <SECTNO>3.1002</SECTNO> <SUBJECT>Political subdivisions of United States.</SUBJECT> <SECTNO>3.1003</SECTNO> <SUBJECT>Returned and canceled checks.</SUBJECT> <SECTNO>3.1004-3.1006</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>3.1007</SECTNO> <SUBJECT>Hospitalized incompetent veterans.</SUBJECT> <SECTNO>3.1008</SECTNO> <SUBJECT>Accrued benefits payable to foreign beneficiaries.</SUBJECT> <SECTNO>3.1009</SECTNO> <SUBJECT>Personal funds of patients.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Burial Benefits</HD> <SECTNO>3.1600</SECTNO> <SUBJECT>Payment of burial expenses of deceased veterans.</SUBJECT> <SECTNO>3.1601</SECTNO> <SUBJECT>Claims and evidence.</SUBJECT> <SECTNO>3.1602</SECTNO> <SUBJECT>Special conditions governing payments.</SUBJECT> <SECTNO>3.1603</SECTNO> <SUBJECT>Authority for burial of certain unclaimed bodies.</SUBJECT> <SECTNO>3.1604</SECTNO> <SUBJECT>Payments from non-Department of Veterans Affairs sources.</SUBJECT> <SECTNO>3.1605</SECTNO> <SUBJECT>Death while traveling under prior authorization or while hospitalized by the Department of Veterans Affairs.</SUBJECT> <SECTNO>3.1606</SECTNO> <SUBJECT>Transportation items.</SUBJECT> <SECTNO>3.1607</SECTNO> <SUBJECT>Cost of flags.</SUBJECT> <SECTNO>3.1608</SECTNO> <SUBJECT>Nonallowable expenses.</SUBJECT> <SECTNO>3.1609</SECTNO> <SUBJECT>Forfeiture.</SUBJECT> <SECTNO>3.1610</SECTNO> <SUBJECT>Burial in national cemeteries; burial of unclaimed bodies.</SUBJECT> <SECTNO>3.1611</SECTNO> <SUBJECT>Official Department of Veterans Affairs representation at funeral.</SUBJECT> <SECTNO>3.1612</SECTNO> <SUBJECT>Monetary allowance in lieu of a Government-furnished headstone or marker.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart C [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Universal Adjudication Rules That Apply to Benefit Claims Governed by Part 3 of This Title</HD> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTNO>3.2100</SECTNO> <SUBJECT>Scope of Applicability.</SUBJECT> <SECTNO>3.2130</SECTNO> <SUBJECT>Will VA accept a signature by mark or thumbprint?</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Revisions</HD> <SECTNO>3.2600</SECTNO> <SUBJECT>Review of benefit claims decisions.</SUBJECT> </SUBJGRP> </SUBPART> </CONTENTS> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Nomenclature changes to part 3 appear at 61 FR 7216, Feb. 27, 1996; 62 FR 35970, July 3, 1997; 62 FR 47532, Sept. 9, 1997; and 67 FR 46868, July 17, 2002.</P> </EDNOTE> <SUBPART> <HD SOURCE="HED">Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501(a), unless otherwise noted.</P> </AUTH> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 3.1</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Armed Forces</E> means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components.<PRTPAGE P="146"/> </P> <P>(b) <E T="03">Reserve component</E> means the Army, Naval, Marine Corps, Air Force, and Coast Guard Reserves and the National and Air National Guard of the United States.</P> <P>(c) <E T="03">Reserves</E> means members of a Reserve component of one of the Armed Forces.</P> <P>(d) <E T="03">Veteran</E> means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable.</P> <P>(1) For compensation and dependency and indemnity compensation the term <E T="03">veteran</E> includes a person who died in active service and whose death was not due to willful misconduct.</P> <P>(2) For death pension the term <E T="03">veteran</E> includes a person who died in active service under conditions which preclude payment of service-connected death benefits, provided such person had completed at least 2 years honorable military, naval or air service, as certified by the Secretary concerned. (See §§ 3.3(b)(3)(i) and 3.3(b)(4)(i)) </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(e) <E T="03">Veteran of any war</E> means any veteran who served in the active military, naval or air service during a period of war as set forth in § 3.2.</P> <P>(f) <E T="03">Period of war</E> means the periods described in § 3.2.</P> <P>(g) <E T="03">Secretary concerned</E> means:</P> <P>(1) The Secretary of the Army, with respect to matters concerning the Army;</P> <P>(2) The Secretary of the Navy, with respect to matters concerning the Navy or the Marine Corps;</P> <P>(3) The Secretary of the Air Force, with respect to matters concerning the Air Force;</P> <P>(4) The Secretary of Transportation, with respect to matters concerning the Coast Guard;</P> <P>(5) The Secretary of Health and Human Services, with respect to matters concerning the Public Health Service; and</P> <P>(6) The Secretary of Commerce, with respect to matters concerning the Coast and Geodetic Survey, the Environmental Science Services Administration, and the National Oceanic and Atmospheric Administration.</P> <P>(h) <E T="03">Discharge or release</E> includes retirement from the active military, naval, or air service.</P> <P>(i) <E T="03">State</E> means each of the several States, Territories and possessions of the United States, the District of Columbia, and Commonwealth of Puerto Rico.</P> <P>(j) <E T="03">Marriage</E> means a marriage valid under the law of the place where the parties resided at the time of marriage, or the law of the place where the parties resided when the right to benefits accrued. </P> <PARAUTH>(Authority: 38 U.S.C. 103(c))</PARAUTH> <P>(k) <E T="03">Service-connected</E> means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.</P> <P>(l) <E T="03">Nonservice-connected</E> means, with respect to disability or death, that such disability was not incurred or aggravated, or that the death did not result from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.</P> <P>(m) <E T="03">In line of duty</E> means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:</P> <P>(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.</P> <P>(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.</P> <P>(3) Confined under sentence of a civil court for a felony as determined under <PRTPAGE P="147"/>the laws of the jurisdiction where the person was convicted by such court. </P> <PARAUTH>(Authority: 38 U.S.C. 105)</PARAUTH> <NOTE> <HD SOURCE="HED">Note:</HD> <P>See § 3.1(y)(2)(iii) for applicability of <E T="03">in line of duty</E> in determining former prisoner of war status.</P> </NOTE> <P>(n) <E T="03">Willful misconduct</E> means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs.</P> <P>(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.</P> <P>(2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.</P> <P>(3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. (See §§ 3.301, 3.302.)</P> <P>(o) <E T="03">Political subdivision of the United States</E> includes the jurisdiction defined as a State in paragraph (i) of this section, and the counties, cities or municipalities of each.</P> <P>(p) <E T="03">Claim</E>—<E T="03">Application</E> means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.</P> <P>(q) <E T="03">Notice</E> means written notice sent to a claimant or payee at his or her latest address of record.</P> <P>(r) <E T="03">Date of receipt</E> 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.</P> <P>(s) <E T="03">On the borders thereof</E> means, with regard to service during the Mexican border period, the States of Arizona, California, New Mexico, and Texas, and the nations of Guatemala and British Honduras. </P> <PARAUTH>(Authority: 38 U.S.C. 101(30))</PARAUTH> <P>(t) <E T="03">In the waters adjacent thereto</E> means, with regard to service during the Mexican border period, the waters (including the islands therein) which are within 750 nautical miles (863 statute miles) of the coast of the mainland of Mexico. </P> <PARAUTH>(Authority: 38 U.S.C. 101(30)</PARAUTH> <P>(u) <E T="03">Section 306 pension</E> means those disability and death pension programs in effect on December 31, 1978, which arose out of Pub. L. 86-211; 73 Stat. 432.</P> <P>(v) <E T="03">Old-Law pension</E> means the disability and death pension programs that were in effect on June 30, 1960. Also known as protected pension, i.e. protected under section 9(b) of the Veteran's Pension Act of 1959 (Pub. L. 86-211; 73 Stat. 432).</P> <P>(w) <E T="03">Improved pension</E> means the disability and death pension programs becoming effective January 1, 1979, under authority of Pub. L. 95-588; 92 Stat. 2497.</P> <P>(x) <E T="03">Service pension</E> is the name given to Spanish-American War pension. It is referred to as a service pension because entitlement is based solely on service without regard to nonservice-connected disability, in-come and net worth. </P> <PARAUTH>(Authority: 38 U.S.C. 1512, 1536)</PARAUTH> <P>(y) <E T="03">Former prisoner of war.</E> The term <E T="03">former prisoner of war</E> means a person who, while serving in the active military, naval or air service, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force.</P> <P>(1) <E T="03">Decisions based on service department findings.</E> The Department of Veterans Affairs shall accept the findings of the appropriate service department that a person was a prisoner of war during a period of war unless a reasonable basis exists for questioning it. Such findings shall be accepted only when detention or internment is by an enemy government or its agents.</P> <P>(2) <E T="03">Other decisions.</E> In all other situations, including those in which the Department of Veterans Affairs cannot accept the service department findings, the following factors shall be used to determine prisoner of war status:<PRTPAGE P="148"/> </P> <P>(i) <E T="03">Circumstances of detention or internment.</E> To be considered a former prisoner of war, a serviceperson must have been forcibly detained or interned under circumstances comparable to those under which persons generally have been forcibly detained or interned by enemy governments during periods of war. Such circumstances include, but are not limited to, physical hardships or abuse, psychological hardships or abuse, malnutrition, and unsanitary conditions. Each individual member of a particular group of detainees or internees shall, in the absence of evidence to the contrary, be considered to have experienced the same circumstances as those experienced by the group.</P> <P>(ii) <E T="03">Reason for detainment or internment.</E> The reason for which a serviceperson was detained or interned is immaterial in determining POW status, except that a serviceperson who is detained or interned by a foreign government for an alleged violation of its laws is not entitled to be considered a former POW on the basis of that period of detention or internment, unless the charges are a sham intended to legitimize the period of detention or internment.</P> <P>(3) <E T="03">Central Office approval.</E> The Director of the Compensation and Pension Service, VA Central Office, shall approve all VA regional office determinations establishing or denying POW status, with the exception of those service department determinations accepted under paragraph (y)(1) of this section.</P> <P>(4) <E T="03">In line of duty.</E> The Department of Veterans Affairs shall consider that a serviceperson was forcibly detained or interned in line of duty unless the evidence of record discloses that forcible detainment or internment was the proximate result of the serviceperson's own willful misconduct.</P> <P>(5) <E T="03">Hostile force.</E> The term <E T="03">hostile force</E> means any entity other than an enemy or foreign government or the agents of either whose actions are taken to further or enhance anti-American military, political or economic objectives or views, or to attempt to embarrass the United States. </P> <PARAUTH>(Authority: 38 U.S.C. 101(32))</PARAUTH> <P>(z) <E T="03">Nursing home</E> means</P> <P>(1) Any extended care facility which is licensed by a State to provide skilled or intermediate-level nursing care,</P> <P>(2) A nursing home care unit in a State veterans’ home which is approved for payment under 38 U.S.C. 1742, or</P> <P>(3) A Department of Veterans Affairs Nursing Home Care Unit.</P> <P>(aa) <E T="03">Fraud:</E> </P> <P>(1) As used in 38 U.S.C. 103 and implementing regulations, fraud means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining, or assisting an individual to obtain an annulment or divorce, with knowledge that the misrepresentation or failure to disclose may result in the erroneous granting of an annulment or divorce; and </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(2) As used in 38 U.S.C. 110 and 1159 and implementing regulations, fraud means an intentional misrepresentation of fact, or the intentional failure to disclose pertinent facts, for the purpose of obtaining or retaining, or assisting an individual to obtain or retain, eligibility for Department of Veterans Affairs benefits, with knowledge that the misrepresentation or failure to disclose may result in the erroneous award or retention of such benefits.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross-References:</HD> <P>Pension. See § 3.3. Compensation. See § 3.4. Dependency and indemnity compensation. See § 3.5. Preservation of disability ratings. See § 3.951. Service-connection. See § 3.957.</P> </CROSSREF> <CITA>[26 FR 1563, Feb. 24, 1961]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 3.1, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 3.2</SECTNO> <SUBJECT>Periods of war.</SUBJECT> <P>This section sets forth the beginning and ending dates of each war period beginning with the Indian wars. Note that the term <E T="03">period of war</E> in reference to pension 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).<PRTPAGE P="149"/> </P> <P>(a) <E T="03">Indian wars.</E> January 1, 1817, through December 31, 1898, inclusive. Service must have been rendered with the United States military forces against Indian tribes or nations.</P> <P>(b) <E T="03">Spanish-American War.</E> 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.</P> <P>(c) <E T="03">World War I.</E> 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.</P> <P>(d) <E T="03">World War II.</E> 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.</P> <P>(e) <E T="03">Korean conflict.</E> June 27, 1950, through January 31, 1955, inclusive.</P> <P>(f) <E T="03">Vietnam era.</E> 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. </P> <PARAUTH>(Authority: 38 U.S.C. 101(29))</PARAUTH> <P>(g) <E T="03">Future dates.</E> 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. </P> <PARAUTH>(Authority: 38 U.S.C. 101)</PARAUTH> <P>(h) <E T="03">Mexican border period.</E> 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. </P> <PARAUTH>(Authority: 38 U.S.C. 101(30))</PARAUTH> <P>(i) <E T="03">Persian Gulf War.</E> August 2, 1990, through date to be prescribed by Presidential proclamation or law.</P> <SECAUTH>(Authority: 38 U.S.C. 101(33))</SECAUTH> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.3</SECTNO> <SUBJECT>Pension.</SUBJECT> <P>(a) <E T="03">Pension for veterans</E>—(1) <E T="03">Service pension; Spanish-American War.</E> A benefit payable monthly by the Department of Veterans Affairs because of service in the Spanish-American War. Basic entitlement exists if a veteran:</P> <P>(i) Had 70 (or 90) days or more active service during the Spanish-American War; or</P> <P>(ii) Was discharged or released from such service for a disability adjudged service connected without benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. </P> <PARAUTH>(Authority: 38 U.S.C. 1512)</PARAUTH> <P>(2) <E T="03">Section 306 pension.</E> A benefit payable monthly by the Department of Veterans Affairs because of nonservice-connected disability or age. Basic entitlement exists if a veteran:</P> <P>(i) Served 90 days or more in either the Mexican border period, World War I, World War II, the Korean conflict, or the Vietnam era, or served an aggregate of 90 days or more in separate periods of service during the same or during different war periods, including service during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L. 90-77, 81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or</P> <P>(ii) Served continuously for a period of 90 consecutive days or more and such period ended during the Mexican border period or World War I, or began or ended during World War II, the Korean conflict or the Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L. 88-664, 78 Stat. 1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub. L. 92-198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204, 91 Stat. 1455); or<PRTPAGE P="150"/> </P> <P>(iii) Was discharged or released from such wartime service, before having served 90 days, for a disability adjudged service connected without the benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; and</P> <P>(iv) Is permanently and totally disabled (<E T="03">a</E>) from nonservice-connected disability not due to the veteran's own willful misconduct or vicious habits, or (<E T="03">b</E>) by reason of having attained the age of 65 years or by reason of having become unemployable after age 65; and</P> <P>(v)(<E T="03">a</E>) Is in receipt of section 306 pension or (<E T="03">b</E>) has an application for pension pending on December 31, 1978, or (<E T="03">c</E>) meets the age or disability requirements for such pension on December 31, 1978, and files a claim within 1 year of that date and also within 1 year after meeting the age or disability requirements.</P> <P>(vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in effect on December 31, 1978, and all other provisions of title 38, United States Code, in effect on December 31, 1978, applicable to section 306 pension. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The pension provisions of title 38 U.S.C., as in effect on December 31, 1978, are available in any VA regional office.</P> </NOTE> <P>(3) <E T="03">Improved pension; Pub. L. 95-588 (92 Stat. 2497).</E> 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:</P> <P>(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</P> <P>(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</P> <P>(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</P> <P>(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</P> <P>(v) Meets the net worth requirements under § 3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in § 3.23; and</P> <P>(vi)(A) Is age 65 or older; or</P> <P>(B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following:</P> <P>(<E T="03">1</E>) A patient in a nursing home for long-term care because of disability; or</P> <P>(<E T="03">2</E>) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or</P> <P>(<E T="03">3</E>) Unemployable as a result of disability reasonably certain to continue throughout the life of the person; or</P> <P>(<E T="03">4</E>) Suffering from:</P> <P>(<E T="03">i</E>) Any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person; or</P> <P>(<E T="03">ii</E>) Any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled. </P> <PARAUTH>(Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)</PARAUTH> <PRTPAGE P="151"/> <P>(b) <E T="03">Pension for survivors—</E>(1) <E T="03">Indian war death pension.</E> A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of an Indian war. Basic entitlement exists if a veteran had qualifying service as specified in 38 U.S.C. 1511. Indian war death pension rates are set forth in 38 U.S.C. 1534 and 1535.</P> <P>(2) <E T="03">Spanish-American War death pension.</E> A monthly benefit payable by the Department of Veterans Affairs to the surviving spouse or child of a deceased veteran of the Spanish-American War, if the veteran:</P> <P>(i) Had 90 days or more active service during the Spanish-American War; or</P> <P>(ii) Was discharged or released from such service for a disability service-connected without benefit of presumptive provisions of law, or at time of discharge had such a service-connected disability, as shown by official service records, which in medical judgment would have justified a discharge for disability. </P> <PARAUTH>(Authority: 38 U.S.C. 1536, 1537)</PARAUTH> <P>(3) <E T="03">Section 306 death pension.</E> A monthly benefit payable by the Department of Veterans Affairs to a surviving spouse or child because of a veteran's nonservice-connected death. Basic entitlement exists if:</P> <P>(i) The veteran (as defined in § 3.1(d) and (d)(2)) had qualifying service as specified in paragraph (a)(2)(i), (ii), or (iii) of this section; or</P> <P>(ii) The veteran was, at time of death, receiving or entitled to receive compensation or retired pay for service-connected disability based on wartime service; and</P> <P>(iii) The surviving spouse or child (A) was in receipt of section 306 pension on December 31, 1978, or (B) had a claim for pension pending on that date, or (C) filed a claim for pension after that date but within 1 year after the veteran's death, if the veteran died before January 1, 1979; and</P> <P>(iv) The surviving spouse or child meets the income and net worth requirements of 38 U.S.C. 1541, 1542 or 1543 as in effect on December 31, 1978, and all other provisions of title 38, United States Code in effect on December 31, 1978, applicable to section 306 pension. </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>The pension provisions of title 38, United States Code, as in effect on December 31, 1978, are available in any VA regional office.)</P> </NOTE> <P>(4) <E T="03">Improved death pension, Public Law 95-588.</E> 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:</P> <P>(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</P> <P>(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</P> <P>(iii) The surviving spouse or child meets the net worth requirements of § 3.274 and has an annual income not in excess of the applicable maximum annual pension rate specified in §§ 3.23 and 3.24.</P> <SECAUTH>(Authority: 38 U.S.C. 1541 and 1542).</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Section 306 pension. See § 3.1(u). Improved pension. See § 3.1(w). Improved pension rates. See § 3.23. Improved pension rates; surviving children. See § 3.24. Frequency of payment of improved pension. See § 3.30. Relationship of net worth to pension entitlement. See § 3.274.</P> </CROSSREF> <CITA>[44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34541, June 10, 2003]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.4</SECTNO> <SUBJECT>Compensation.</SUBJECT> <P>(a) <E T="03">Compensation.</E> 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-<PRTPAGE P="152"/>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. </P> <PARAUTH>(Authority: 38 U.S.C. 101(2), (13))</PARAUTH> <P>(b) <E T="03">Disability compensation.</E> (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. </P> <PARAUTH>(Authority: 38 U.S.C. 1110, 1131)</PARAUTH> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 1115)</PARAUTH> <P>(c) <E T="03">Death compensation.</E> Basic entitlement exists for a surviving spouse, child or children, and dependent parent or parents if:</P> <P>(1) The veteran died before January 1, 1957; or</P> <P>(2) The veteran died on or after May 1, 1957, and before January 1, 1972, if at the time of death a policy of United States Government Life Insurance or National Service Life Insurance was in effect under waiver of premiums under 38 U.S.C. 1924 unless the waiver was granted under the first proviso of section 622(a) of the National Service Life Insurance Act of 1940, and the veteran died before return to military jurisdiction or within 120 days thereafter. (See § 3.5(d) as to Public Health Service.)</P> <SECAUTH>(Authority: 38 U.S.C. 1121, 1141)</SECAUTH> <CITA>[26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.5</SECTNO> <SUBJECT>Dependency and indemnity compensation.</SUBJECT> <P>(a) <E T="03">Dependency and indemnity compensation.</E> This term means a monthly payment made by the Department of Veterans Affairs to a surviving spouse, child, or parent:</P> <P>(1) Because of a service-connected death occurring after December 31, 1956, or</P> <P>(2) Pursuant to the election of a surviving spouse, child, or parent, in the case of such a death occurring before January 1, 1957. </P> <PARAUTH>(Authority: 38 U.S.C. 101 (14))</PARAUTH> <P>(b) <E T="03">Entitlement.</E> Basic entitlement for a surviving spouse, child or children, and parent or parents of a veteran exists, if:</P> <P>(1) Death occurred on or after January 1, 1957, except in the situation specified in § 3.4(c)(2); or</P> <P>(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</P> <P>(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)</P> <P>(c) <E T="03">Exclusiveness of remedy.</E> 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 pension or compensation under any other law administered by the Department of Veterans Affairs, except that, effective November 2, 1994, a surviving spouse who is receiving dependency and indemnity compensation may elect to receive death pension instead of such compensation. </P> <PARAUTH>(Authority: 38 U.S.C. 1317)</PARAUTH> <P>(d) <E T="03">Group life insurance.</E> 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, <PRTPAGE P="153"/>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. </P> <PARAUTH>(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))</PARAUTH> <P>(e) <E T="03">Surviving spouses’ rate.</E> (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 to increase as provided in paragraphs (e) (3) and (4) of this section.</P> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 1311(a) and 1321)</PARAUTH> <P>(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.</P> <P>(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).</P> <CITA>[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.6</SECTNO> <SUBJECT>Duty periods.</SUBJECT> <P>(a) <E T="03">Active military, naval, and air service.</E> 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. </P> <PARAUTH>(Authority: 38 U.S.C. 101(24))</PARAUTH> <P>(b) <E T="03">Active duty.</E> This means:</P> <P>(1) Full-time duty in the Armed Forces, other than active duty for training;</P> <P>(2) Full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service:</P> <P>(i) On or after July 29, 1945, or</P> <P>(ii) Before that date under circumstances affording entitlement to <E T="03">full military benefits,</E> or</P> <P>(iii) At any time, for the purposes of dependency and indemnity compensation.</P> <P>(3) Full-time duty as a commissioned officer of the Coast and Geodetic Survey or of its successor agencies, the <PRTPAGE P="154"/>Environmental Science Services Administration and the National Oceanic and Atmospheric Administration:</P> <P>(i) On or after July 29, 1945, or</P> <P>(ii) Before that date:</P> <P>(<E T="03">a</E>) While on transfer to one of the Armed Forces, or</P> <P>(<E T="03">b</E>) 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</P> <P>(<E T="03">c</E>) In the Philippine Islands on December 7, 1941, and continuously in such islands thereafter, or</P> <P>(iii) At any time, for the purposes of dependency and indemnity compensation.</P> <P>(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;</P> <P>(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;</P> <P>(6) Authorized travel to or from such duty or service; and</P> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 106(c))</PARAUTH> <P>(c) <E T="03">Active duty for training.</E> (1) Full-time duty in the Armed Forces performed by Reserves for training purposes;</P> <P>(2) Full-time duty for training purposes performed as a commissioned officer of the Reserve Corps of the Public Health Service:</P> <P>(i) On or after July 29, 1945, or</P> <P>(ii) Before that date under circumstances affording entitlement to <E T="03">full military benefits,</E> or</P> <P>(iii) At any time, for the purposes of dependency and indemnity compensation:</P> <P>(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;</P> <P>(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.</P> <P>(i) The requirements of this paragraph are effective—</P> <P>(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</P> <P>(B) October 1, 1983, with respect to deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982.</P> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 101(22)(D) as amended by Pub. L. 100-456)</PARAUTH> <P>(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.</P> <P>(6) Authorized travel to or from such duty. </P> <PARAUTH>(Authority: 38 U.S.C. 101(22))</PARAUTH> <PRTPAGE P="155"/> <FP>The term does not include duty performed as a temporary member of the Coast Guard Reserve.</FP> <P>(d) <E T="03">Inactive duty training.</E> 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;</P> <P>(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</P> <P>(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.</P> <P>(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 <E T="03">inactive duty training</E> does not include:</P> <P>(i) Work or study performed in connection with correspondence courses,</P> <P>(ii) Attendance at an educational institution in an inactive status, or</P> <P>(iii) Duty performed as a temporary member of the Coast Guard Reserve. </P> <PARAUTH>(Authority: 38 U.S.C. 101(23))</PARAUTH> <P>(e) <E T="03">Travel status—training duty (disability or death from injury or covered disease).</E> Any individual:</P> <P>(1) Who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and</P> <P>(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.</P> <P>(3) For purposes of this section, the term <E T="03">covered disease</E> means any of the following:</P> <P>(i) An acute myocardial infarction.</P> <P>(ii) A cardiac arrest.</P> <P>(iii) A cerebrovascular accident. </P> <SECAUTH>(Authority: 38 U.S.C. 106(d))</SECAUTH> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.7</SECTNO> <SUBJECT>Individuals and groups considered to have performed active military, naval, or air service.</SUBJECT> <P>The following individuals and groups are considered to have performed active military, naval, or air service:</P> <P>(a) <E T="03">Aerial transportation of mail</E> (<E T="03">Pub. L. 140, 73d Congress</E>). Persons who were injured or died while serving under conditions set forth in Pub. L. 140, 73d Congress.</P> <P>(b) <E T="03">Aliens.</E> 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, <PRTPAGE P="156"/>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.) </P> <PARAUTH>(Authority: 38 U.S.C. 5303(c))</PARAUTH> <P>(c) <E T="03">Army field clerks.</E> Included as enlisted men.</P> <P>(d) <E T="03">Army Nurse Corps, Navy Nurse Corps, and female dietetic and physical therapy personnel.</E> (1) Army and Navy nurses (female) on active service under order of the service department.</P> <P>(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.</P> <P>(e) <E T="03">Aviation camps.</E> Students who were enlisted men during World War I.</P> <P>(f) <E T="03">Cadets and midshipmen.</E> See § 3.6(b)(4).</P> <P>(g) <E T="03">Coast and Geodetic Survey, and its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration.</E> See § 3.6(b)(3).</P> <P>(h) <E T="03">Coast Guard.</E> 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.)</P> <P>(i) <E T="03">Contract surgeons.</E> 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.</P> <P>(j) <E T="03">Field clerks, Quartermaster Corps.</E> Included as enlisted men.</P> <P>(k) <E T="03">Lighthouse service personnel.</E> 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.</P> <P>(l) <E T="03">Male nurses.</E> Persons who were enlisted men of Medical Corps.</P> <P>(m) <E T="03">National Guard.</E> 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.</P> <P>(n) <E T="03">Persons heretofore having a pensionable or compensable status.</E> </P> <PARAUTH>(Authority: 38 U.S.C. 1152, 1504)</PARAUTH> <P>(o) <E T="03">Persons ordered to service.</E> (1) Any person who has:</P> <P>(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</P> <P>(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</P> <P>(iii) Been called into Federal service as a member of the National Guard, but has not been enrolled for Federal service, and</P> <P>(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,</P> <FP>is considered to have been on active duty and therefore to have incurred such disability in active service.</FP> <P>(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> <P>(p) <E T="03">Philippine Scouts and others.</E> See § 3.40.</P> <P>(q) <E T="03">Public Health Service.</E> See § 3.6 (a) and (b).</P> <P>(r) <E T="03">Reserves.</E> See § 3.6 (a), (b), and (c).</P> <P>(s) <E T="03">Revenue Cutter Service.</E> While serving under direction of Secretary of the Navy in cooperation with the Navy.</P> <P>(t) <E T="03">Training camps.</E> Members of training camps authorized by section 54 of <PRTPAGE P="157"/>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.</P> <P>(u) <E T="03">Women's Army Corps (WAC).</E> Service on or after July 1, 1943.</P> <P>(v) <E T="03">Women's Reserve of Navy, Marine Corps, and Coast Guard.</E> Same benefits as members of the Officers Reserve Corps or enlisted men of the United States Navy, Marine Corps or Coast Guard.</P> <P>(w) <E T="03">Russian Railway Service Corps.</E> Service during World War I as certified by the Secretary of the Army.</P> <P>(x) <E T="03">Active military service certified as such under section 401 of Pub. L. 95-202.</E> 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.</P> <P>(1) Women's Air Forces Service Pilots (WASP).</P> <P>(2) Signal Corps Female Telephone Operators Unit of World War I.</P> <P>(3) Engineer Field Clerks.</P> <P>(4) Women's Army Auxiliary Corps (WAAC).</P> <P>(5) Quartermaster Corps Female Clerical Employees serving with the AEF (American Expeditionary Forces) in World War I.</P> <P>(6) Civilian Employees of Pacific Naval Air Bases Who Actively Participated in Defense of Wake Island During World War II.</P> <P>(7) Reconstruction Aides and Dietitians in World War I.</P> <P>(8) Male Civilian Ferry Pilots.</P> <P>(9) Wake Island Defenders from Guam.</P> <P>(10) Civilian Personnel Assigned to the Secret Intelligence Element of the OSS.</P> <P>(11) Guam Combat Patrol.</P> <P>(12) Quartermaster Corps <E T="03">Keswick</E> Crew on Corregidor (WWII).</P> <P>(13) U.S. Civilian Volunteers Who Actively Participated in the Defense of Bataan.</P> <P>(14) United States Merchant Seamen Who Served on Blockships in Support of Operation Mulberry.</P> <P>(15) American Merchant Marine in Oceangoing Service during the Period of Armed Conflict, December 7, 1941, to August 15, 1945.</P> <P>(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 <E T="03">IFF</E> stands for Identification Friend or Foe.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(21) Honorably Discharged Members of the American Volunteer Group (Flying Tigers) Who Served During the Period December 7, 1941 to July 18, 1942.</P> <P>(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.</P> <P>(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 <PRTPAGE P="158"/>December 14, 1941, through August 14, 1945.</P> <P>(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.</P> <P>(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.</P> <P>(26) Honorably Discharged Members of the American Volunteer Guard, Eritrea Service Command During the Period June 21, 1942 to March 31, 1943.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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. </P> <PARAUTH>(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1449)</PARAUTH> <SECAUTH>(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1450)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Office of Workers’ Compensation Programs. See § 3.708.</P> </CROSSREF> <CITA>[26 FR 1565, Feb. 24, 1961]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> 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.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 3.10</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.11</SECTNO> <SUBJECT>Homicide.</SUBJECT> <P>Any person who has intentionally and wrongfully caused the death of another person is not entitled to pension, compensation, or dependency and indemnity compensation or increased pension, compensation, or dependency and indemnity compensation by reason of such death. For the purpose of this section the term <E T="03">dependency and indemnity compensation</E> includes benefits at dependency and indemnity compensation rates paid under 38 U.S.C. 1318.</P> <CITA>[44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.12</SECTNO> <SUBJECT>Character of discharge.</SUBJECT> <P>(a) If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. (38 U.S.C. 101(2)). A discharge under honorable conditions is binding on the Department of Veterans Affairs as to character of discharge.</P> <P>(b) A discharge or release from service under one of the conditions specified in this section is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release or unless otherwise specifically provided (38 U.S.C. 5303(b)).</P> <P>(c) Benefits are not payable where the former service member was discharged or released under one of the following conditions:</P> <P>(1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities.</P> <P>(2) By reason of the sentence of a general court-martial.<PRTPAGE P="159"/> </P> <P>(3) Resignation by an officer for the good of the service.</P> <P>(4) As a deserter.</P> <P>(5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release. See § 3.7(b).</P> <P>(6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. This bar applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (h) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility to receive Department of Veterans Affairs benefits. The term <E T="03">established basic eligibility to receive Department of Veterans Affairs benefits</E> means either a Department of Veterans Affairs determination that an other than honorable discharge was issued under conditions other than dishonorable, or an upgraded honorable or general discharge issued prior to October 8, 1977, under criteria other than those prescribed by one of the programs listed in paragraph (h) of this section. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity (paragraph (b) of this section) or a decision of a board of correction of records established under 10 U.S.C. 1552 can estalish basic eligibility to receive Department of Veterans Affairs benefits. The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.</P> <P>(i) Length and character of service exclusive of the period of prolonged AWOL. Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.</P> <P>(ii) Reasons for going AWOL. Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties. The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted. Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began.</P> <P>(iii) A valid legal defense exists for the absence which would have precluded a conviction for AWOL. Compelling circumstances could occur as a matter of law if the absence could not validly be charged as, or lead to a conviction of, an offense under the Uniform Code of Military Justice. For purposes of this paragraph the defense must go directly to the substantive issue of absence rather than to procedures, technicalities or formalities.</P> <P>(d) A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.</P> <P>(1) Acceptance of an undesirable discharge to escape trial by general court-martial.</P> <P>(2) Mutiny or spying.</P> <P>(3) An offense involving moral turpitude. This includes, generally, conviction of a felony.</P> <P>(4) Willful and persistent misconduct. This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct. A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.</P> <P>(5) Homosexual acts involving aggravating circumstances or other factors affecting the performance of duty. Examples of homosexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, homosexual prostitution, homosexual acts or conduct accompanied by assault or <PRTPAGE P="160"/>coercion, and homosexual acts or conduct taking place between service members of disparate rank, grade, or status when a service member has taken advantage of his or her superior rank, grade, or status.</P> <P>(e) An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of 10 U.S.C. 1552 is final and conclusive on the Department of Veterans Affairs. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section.</P> <P>(f) An honorable or general discharge issued prior to October 8, 1977, under authority other than that listed in paragraphs (h) (1), (2) and (3) of this section by a discharge review board established under 10 U.S.C. 1553 set aside any bar to benefits imposed under paragraph (c) or (d) of this section except the bar contained in paragraph (c)(2) of this section.</P> <P>(g) An honorable or general discharge issued on or after October 8, 1977, by a discharge review board established under 10 U.S.C. 1553, sets aside a bar to benefits imposed under paragraph (d), but not paragraph (c), of this section provided that:</P> <P>(1) The discharge is upgraded as a result of an individual case review;</P> <P>(2) The discharge is upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military, naval or air service under conditions other than honorable; and</P> <P>(3) Such standards are consistent with historical standards for determining honorable service and do not contain any provision for automatically granting or denying an upgraded discharge.</P> <P>(h) Unless a discharge review board established under 10 U.S.C. 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section:</P> <P>(1) The President's directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974; or</P> <P>(2) The Department of Defense's special discharge review program effective April 5, 1977; or</P> <P>(3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. </P> <PARAUTH>(Authority: 38 U.S.C. 5303 (e))</PARAUTH> <P>(i) No overpayments shall be created as a result of payments made after October 8, 1977, based on an upgraded honorable or general discharge issued under one of the programs listed in paragraph (h) of this section which would not be awarded under the standards set forth in paragraph (g) of this section. Accounts in payment status on or after October 8, 1977, shall be terminated the end of the month in which it is determined that the original other than honorable discharge was not issued under conditions other than dishonorable following notice from the appropriate discharge review board that the discharge would not have been upgraded under the standards set forth in paragraph (g) of this section, or April 7, 1978, whichever is the earliest. Accounts in suspense (either before or after October 8, 1977) shall be terminated on the date of last payment or April 7, 1978, whichever is the earliest.</P> <P>(j) No overpayment shall be created as a result of payments made after October 8, 1977, in cases in which the bar contained in paragraph (c)(6) of this section is for application. Accounts in payment status on or after October 8, 1977, shall be terminated at the end of the month in which it is determined that compelling circumstances do not exist, or April 7, 1978, whichever is the earliest. Accounts in suspense (either before or after October 8, 1977) shall be terminated on the date of last payment, or April 7, 1978, whichever is the earliest.</P> <P>(k) <E T="03">Uncharacterized separations.</E> Where enlisted personnel are administratively separated from service on the basis of <PRTPAGE P="161"/>proceedings initiated on or after October 1, 1982, the separation may be classified as one of the three categories of administrative separation that do not require characterization of service by the military department concerned. In such cases conditions of discharge will be determined by the VA as follows:</P> <P>(1) <E T="03">Entry level separation.</E> Uncharacterized administrative separations of this type shall be considered under conditions other than dishonorable.</P> <P>(2) <E T="03">Void enlistment or induction.</E> Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation, with reference to the provisions of § 3.14 of this part, to determine whether separation was under conditions other than dishonorable.</P> <P>(3) <E T="03">Dropped from the rolls.</E> Uncharacterized administrative separations of this type shall be reviewed based on facts and circumstances surrounding separation to determine whether separation was under conditions other than dishonorable.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Validity of enlistments. See § 3.14. Revision of decisions. See § 3.105. Effective dates. See § 3.400(g). Minimum active-duty service requirement. See § 3.12a.</P> </CROSSREF> <CITA>[28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43 FR 15153, Apr. 11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2, 1984; 62 FR 14823, Mar. 28, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.12a</SECTNO> <SUBJECT>Minimum active-duty service requirement.</SUBJECT> <P>(a) <E T="03">Definitions.</E> (1) The term <E T="03">minimum period of active duty</E> means, for the purposes of this section, the shorter of the following periods.</P> <P>(i) Twenty-four months of continuous active duty. Non-duty periods that are excludable in determining the Department of Veterans Affairs benefit entitlement (e.g., see § 3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served.</P> <P>(ii) The full period for which a person was called or ordered to active duty.</P> <P>(2) The term <E T="03">benefit</E> includes a right or privilege but does not include a refund of a participant's contributions under 38 U.S.C. Ch. 32.</P> <P>(b) <E T="03">Effect on Department of Veterans Affairs benefits.</E> Except as provided in paragraph (d) of this section, a person listed in paragraph (c) of this section who does not complete a minimum period of active duty is not eligible for any benefit under title 38, United States Code or under any law administered by the Department of Veterans Affairs based on that period of active service.</P> <P>(c) <E T="03">Persons included.</E> Except as provided in paragraph (d) of this section, the provisions of paragraph (b) of this section apply to the following persons:</P> <P>(1) A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980 (a person who signed a delayed-entry contract with one of the service branches prior to September 8, 1980, and under that contract was assigned to a reserve component until entering on active duty after September 7, 1980, shall be considered to have enlisted on the date the person entered on active duty); and</P> <P>(2) Any other person (officer as well as enlisted) who enters on active duty after October 16, 1981 and who has not previously completed a continuous period of active duty of at least 24 months or been discharged or released from active duty under 10 U.S.C. 1171 (early out).</P> <P>(d) <E T="03">Exclusions.</E> The provisions of paragraph (b) of this section are not applicable to the following cases:</P> <P>(1) To a person who is discharged or released under 10 U.S.C. 1171 or 1173 (early out or hardship discharge).</P> <P>(2) To a person who is discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability.</P> <P>(3) To a person with a compensable service-connected disability.</P> <P>(4) To the provision of a benefit for or in connection with a service-connected disability, condition, or death.</P> <P>(5) To benefits under chapter 19 of title 38, United States Code.<PRTPAGE P="162"/> </P> <P>(e) <E T="03">Dependent or survivor benefits</E>—(1) <E T="03">General.</E> If a person is, by reason of this section, barred from receiving any benefits under title 38, United States Code (or under any other law administered by the Department of Veterans Affairs based on a period of active duty, the person's dependents or survivors are also barred from receiving benefits based on the same period of active duty.</P> <P>(2) <E T="03">Exceptions.</E> Paragraph (e)(1) of this section does not apply to benefits under chapters 19 and 37 of title 38, United States Code. (38 U.S.C. 5303A)</P> <CITA>[47 FR 24549, June 7, 1982]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.13</SECTNO> <SUBJECT>Discharge to change status.</SUBJECT> <P>(a) A discharge to accept appointment as a commissioned or warrant officer, or to change from a Reserve or Regular commission to accept a commission in the other component, or to reenlist is a conditional discharge if it was issued during one of the following periods:</P> <P>(1) World War I; prior to November 11, 1918. As to reenlistments, this subparagraph applies only to Army and National Guard. No involuntary extension or other restrictions existed on Navy enlistments.</P> <P>(2) World War II, the Korean conflict or the Vietnam era; prior to the date the person was eligible for discharge under the point or length of service system, or under any other criteria in effect.</P> <P>(3) Peacetime service; prior to the date the person was eligible for an unconditional discharge.</P> <P>(b) Except as provided in paragraph (c) of this section, the entire period of service under the circumstances stated in paragraph (a) of this section constitutes one period of service and entitlement will be determined by the character of the final termination of such period of active service except that, for death pension purposes, § 3.3(b)(3) and (4) is controlling as to basic entitlement when the conditions prescribed therein are met.</P> <P>(c) Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval or air service when the following conditions are met:</P> <P>(1) The person served in the active military, naval or air service for the period of time the person was obligated to serve at the time of entry into service;</P> <P>(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and</P> <P>(3) The person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.</P> <CITA>[26 FR 1566, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962; 32 FR 13224, Sept. 19, 1967; 43 FR 15154, Apr. 11, 1978; 46 FR 23926, Apr. 29, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.14</SECTNO> <SUBJECT>Validity of enlistments.</SUBJECT> <P>Service is valid unless the enlistment is voided by the service department.</P> <P>(a) <E T="03">Enlistment not prohibited by statute.</E> Where an enlistment is voided by the service department for reasons other than those stated in paragraph (b) of this section, service is valid from the date of entry upon active duty to the date of voidance by the service department. Benefits may not be paid, however, unless the discharge is held to have been under conditions other than dishonorable. Generally discharge for concealment of a physical or mental defect except incompetency or insanity which would have prevented enlistment will be held to be under dishonorable conditions.</P> <P>(b) <E T="03">Statutory prohibition.</E> Where an enlistment is voided by the service department because the person did not have legal capacity to contract for a reason other than minority (as in the case of an insane person) or because the enlistment was prohibited by statute (a deserter or person convicted of a felony), benefits may not be paid based on that service even though a disability was incurred during such service. An undesirable discharge by reason of the fraudulent enlistment voids the enlistment from the beginning.</P> <P>(c) <E T="03">Misrepresentation of age.</E> Active service which was terminated because of concealment of minority or misrepresentation of age is honorable if <PRTPAGE P="163"/>the veteran was released from service under conditions other than dishonorable. Service is valid from the date of entry upon active duty to the date of discharge.</P> <P>(d) <E T="03">Honorable discharges.</E> Determinations as to honorable service will be made by the service departments and the finding shall be binding on the Department of Veterans Affairs, but, in the case of an alien, the effect of the discharge will be governed by § 3.7(b).</P> <CITA>[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.15</SECTNO> <SUBJECT>Computation of service.</SUBJECT> <P>For nonservice-connected or service-connected benefits, active service is countable exclusive of time spent on an industrial, agricultural, or indefinite furlough, time lost on absence without leave (without pay), under arrest (without acquittal), in desertion, while undergoing sentence of court-martial or a period following release from active duty under the circumstances outlined in § 3.41. In claims based on Spanish-American War service, leave authorized under General Order No. 130, War Department, is included.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Duty periods. See § 3.6(b)(6).</P> </CROSSREF> <CITA>[40 FR 16064, Apr. 9, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.16</SECTNO> <SUBJECT>Service pension.</SUBJECT> <P>In computing the 70 or 90 days required under § 3.3(a) active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a war period may be added together to meet the requirement for length of service.</P> <CITA>[41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.17</SECTNO> <SUBJECT>Disability and death pension; Mexican border period and later war periods.</SUBJECT> <P>In computing the 90 days’ service required for pension entitlement (see § 3.3), there will be included active service which began before and extended into the Mexican border period or ended during World War I, or began or ended during World War II, the Korean conflict, the Vietnam era or the Persian Gulf War, if such service was continuous. Service during different war periods may be combined with service during any other war period to meet the 90 days’ service requirement.</P> <SECAUTH>(Authority: 38 U.S.C. 1521)</SECAUTH> <CITA>[37 FR 6676, Apr. 1, 1972, as amended at 44 FR 45932, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§§ 3.18-3.19</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.20</SECTNO> <SUBJECT>Surviving spouse's benefit for month of veteran's death.</SUBJECT> <P>(a) Where the veteran died on or after December 1, 1962, and before October 1, 1982, the rate of death pension or dependency and indemnity compensation otherwise payable for the surviving spouse for the month in which the death occurred shall be not less than the amount of pension or compensation which would have been payable to or for the veteran for that month but for his or her death. </P> <PARAUTH>(Authority: 38 U.S.C. 5310)</PARAUTH> <P>(b) Where the veteran dies on or after October 1, 1982, the surviving spouse may be paid death pension or dependency and indemnity compensation for the month in which the veteran died at a rate equal to the amount of compensation or pension which would have been payable to the veteran for that month had death not occurred, but only if such rate is equal to or greater than the monthly rate of death pension or dependency and indemnity compensation to which the surviving spouse is entitled. Otherwise, no payment of death pension or dependency and indemnity compensation may be made for the month in which the veteran died. </P> <PARAUTH>(Authority: 38 U.S.C. 5111(c))</PARAUTH> <P>(c)(1) Where a veteran receiving compensation or pension dies after December 31, 1996, the surviving spouse, if not entitled to death compensation, dependency and indemnity compensation, or death pension for the month of death, shall be entitled to a benefit for that month in an amount equal to the amount of compensation or pension the veteran would have received for that month but for his or her death.</P> <P>(2) A payment issued to a deceased veteran as compensation or pension for <PRTPAGE P="164"/>the month in which death occurred shall be treated as payable to that veteran's surviving spouse, if the surviving spouse is not entitled to death compensation, dependency and indemnity compensation or death pension for that month and, if negotiated or deposited, shall be considered to be the benefit to which the surviving spouse is entitled under paragraph (c)(1) of this section. However, if such payment is in an amount less than the amount of the benefit under paragraph (c)(1) of this section, the unpaid difference shall be treated in the same manner as an accrued benefit under § 3.1000 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 5310(b))</SECAUTH> <CITA>[48 FR 34471, July 29, 1983, as amended at 62 FR 35422, July 1, 1997; 64 FR 30392, June 8, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.21</SECTNO> <SUBJECT>Monetary rates.</SUBJECT> <P>The rates of compensation, dependency and indemnity compensation for surviving spouses and children, and section 306 and old-law disability and death pension, are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 and are to be given the same force and effect as if published in the regulations (title 38, Code of Federal Regulations). The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in §§ 3.23 and 3.24. The monthly rates and annual income limitations applicable to parents’ dependency and indemnity compensation are set forth in § 3.25.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Section 306 pension. See § 3.1(u). Old-law pension. See § 3.1(v). Improved pension. See § 3.1(w).</P> </CROSSREF> <CITA>[44 FR 45932, Aug. 6, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.22</SECTNO> <SUBJECT>DIC benefits for survivors of certain veterans rated totally disabled at time of death.</SUBJECT> <P>(a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if:</P> <P>(1) The veteran's death was not the result of his or her own willful misconduct, and</P> <P>(2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was:</P> <P>(i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death;</P> <P>(ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or</P> <P>(iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. </P> <PARAUTH>(Authority: 38 U.S.C. 1318(b))</PARAUTH> <P>(b) For purposes of this section, “entitled to receive” means that at the time of death, the veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because:</P> <P>(1) VA was paying the compensation to the veteran's dependents;</P> <P>(2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;</P> <P>(3) The veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date;</P> <P>(4) The veteran had not waived retired or retirement pay in order to receive compensation;</P> <P>(5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);</P> <P>(6) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or</P> <P>(7) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.</P> <P>(c) For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).</P> <P>(d) To be entitled to benefits under this section, a surviving spouse must have been married to the veteran—<PRTPAGE P="165"/> </P> <P>(1) For at least 1 year immediately preceding the date of the veteran's death; or</P> <P>(2) For any period of time if a child was born of the marriage, or was born to them before the marriage. </P> <PARAUTH>(Authority: 38 U.S.C. 1318)</PARAUTH> <P>(e) <E T="03">Effect of judgment or settlement.</E> If a surviving spouse or child eligible for benefits under paragraph (a) of this section receives any money or property pursuant to a judicial proceeding based upon, or a settlement or compromise of, any cause of action or other right of recovery for damages for the death of the veteran, benefits payable under paragraph (a) of this section shall not be paid for any month following the month in which such money or property is received until the amount of benefits that would otherwise have been payable under paragraph (a) of this section equals the total of the amount of money received and the fair market value of the property received. The provisions of this paragraph do not apply, however, to any portion of such benefits payable for any period preceding the end of the month in which such money or property of value is received. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(f) <E T="03">Social security and worker's compensation.</E> Benefits received under social security or worker's compensation are not subject to recoupment under paragraph (e) of this section even though such benefits may have been awarded pursuant to a judicial proceeding.</P> <P>(g) <E T="03">Beneficiary's duty to report.</E> Any person entitled to benefits under paragraph (a) of this section shall promptly report to the Department of Veterans Affairs the receipt of any money or property received pursuant to a judicial proceeding based upon, or a settlement or compromise of, any cause of action or other right of recovery for damages for the death of the veteran. The amount to be reported is the total of the amount of money received and the fair market value of property received. Expenses incident to recovery, such as attorney's fees, may not be deducted from the amount to be reported.</P> <P>(h) <E T="03">Relationship to survivor benefit plan.</E> For the purpose of 10 U.S.C. 1448(d) and 1450(c) eligibility for benefits under paragraph (a) of this section shall be deemed eligibility for dependency and indemnity compensation under 38 U.S.C. 1311(a).</P> <SECAUTH>(Authority: 38 U.S.C. 1318)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Marriage dates. See § 3.54. Homicide. See § 3.11.</P> </CROSSREF> <CITA>[44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235, June 21, 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3391, Jan. 21, 2000; 65 FR 43699, July 14, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.23</SECTNO> <SUBJECT>Improved pension rates—Veterans and surviving spouses.</SUBJECT> <P>(a) <E T="03">Maximum annual rates of improved pension.</E> The maximum annual rates of improved pension for the following categories of beneficiaries shall be the amounts specified in 38 U.S.C. 1521 and 1542, as increased from time to time under 38 U.S.C. 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rates will be published in the “Notices” section of the <E T="04">Federal Register.</E> (1) Veterans who are permanently and totally disabled. </P> <PARAUTH>(Authority: 38 U.S.C. 1521(b) or (c))</PARAUTH> <P>(2) Veterans in need of aid and attendance. </P> <PARAUTH>(Authority: 38 U.S.C. 1521(d))</PARAUTH> <P>(3) Veterans who are housebound. </P> <PARAUTH>(Authority: 38 U.S.C. 1521(e))</PARAUTH> <P>(4) Two veterans married to one another; combined rates. </P> <PARAUTH>(Authority: 38 U.S.C. 1521(f))</PARAUTH> <P>(5) Surviving spouse alone or with a child or children of the deceased veteran in custody of the surviving spouse. </P> <PARAUTH>(Authority: 38 U.S.C. 1541(b) or (c))</PARAUTH> <P>(6) Surviving spouses in need of aid and attendance. </P> <PARAUTH>(Authority: 38 U.S.C. 1541(d))</PARAUTH> <P>(7) Surviving spouses who are housebound. </P> <PARAUTH>(Authority: 38 U.S.C. 1541(e))</PARAUTH> <PRTPAGE P="166"/> <P>(b) <E T="03">Reduction for income.</E> The maximum rates of improved pension in paragraph (a) of this section shall be reduced by the amount of the countable annual income of the veteran or surviving spouse. </P> <PARAUTH>(Authority: 38 U.S.C. 1521, 1541)</PARAUTH> <P>(c) <E T="03">Mexican border period and World War I veterans.</E> The applicable maximum annual rate payable to a Mexican border period or World War I veteran under this section shall be increased by the amount specified in 38 U.S.C. 1521(g), as increased from time to time under 38 U.S.C 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rate will be published in the “Notices” section of the <E T="04">Federal Register.</E> </P> <PARAUTH>(Authority: 38 U.S.C. 1521(g))</PARAUTH> <P>(d) <E T="03">Definitions of terms used in this section—</E>(1) <E T="03">Dependent.</E> A veteran's spouse or child. A veteran's spouse who resides apart from the veteran and is estranged from the veteran may not be considered the veteran's dependent unless the spouse receives reasonable support contributions from the veteran. (Note that under § 3.60 a veteran and spouse who reside apart are considered to be living together unless they are estranged.) A child of a veteran not in custody of the veteran and to whose support the veteran is not reasonably contributing, may not be considered the veteran's dependent. </P> <PARAUTH>(Authority: 38 U.S.C. 1521(b))</PARAUTH> <P>(2) <E T="03">In need of aid and attendance.</E> As defined in § 3.351(b).</P> <P>(3) <E T="03">Housebound.</E> As defined in § 3.351(d)(2), (f). This term also includes a veteran who has a disability or disabilities evaluated as 60 percent or more disabling in addition to a permanent and totally disabling condition. See § 3.351(d)(1).</P> <P>(4) <E T="03">Veteran's annual income.</E> This term includes the veteran's annual income, the annual income of the veteran's dependent spouse, and the annual income of each child of the veteran (other than a child for whom increased pension is not payable under 38 U.S.C. 1522(b)) in the veteran's custody or to whose support the veteran is reasonably contributing (to the extent such child's income is reasonably available to or for the veteran, unless in the judgment of the Department of Veterans Affairs to do so would work a hardship on the veteran.) There is a rebuttable presumption that all of such a child's income is reasonably available to or for the veteran. </P> <PARAUTH>(Authority: 38 U.S.C. 1521 (c), (h))</PARAUTH> <P>(5) <E T="03">Surviving spouse's annual income.</E> This term includes the surviving spouse's annual income and the annual income of each child of the veteran (other than a child for whom increased pension is not payable under 38 U.S.C. 1543(a)(2)) in the custody of the surviving spouse to the extent that such child's income is reasonably available to or for the surviving spouse, unless in the judgment of the Department of Veterans Affairs to do so would work a hardship on the surviving spouse. There is a rebuttable presumption that all of such a child's income is available to or for the surviving spouse. </P> <PARAUTH>(Authority: 38 U.S.C. 1541(c), (g))</PARAUTH> <P>(6) <E T="03">Reasonable availability and hardship.</E> For the purposes of paragraphs (d)(4) and (d)(5) of this section, a child's income shall be considered “reasonably available” when it can be readily applied to meet the veteran's or surviving spouse's expenses necessary for reasonable family maintenance, and “hardship” shall be held to exist when annual expenses necessary for reasonable family maintenance exceed the sum of countable annual income plus VA pension entitlement. <E T="03">Expenses necessary for reasonable family maintenance</E> include expenses for basic necessities (such as food, clothing, shelter, etc.) and other expenses, determined on a case-by-case basis, which are necessary to support a reasonable quality of life.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Improved pension. See § 3.1(w). Child. See § 3.57(d). Definition of <E T="03">living with.</E> See § 3.60. Exclusions from income. See § 3.272.</P> </CROSSREF> <CITA>[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 53 FR 23235, June 21, 1988]</CITA> </SECTION> <SECTION> <PRTPAGE P="167"/> <SECTNO>§ 3.24</SECTNO> <SUBJECT>Improved pension rates—Surviving children.</SUBJECT> <P>(a) <E T="03">General.</E> The provisions of this section apply to children of a deceased veteran not in the custody of a surviving spouse who has basic eligibility to receive improved pension. Children in custody of a surviving spouse who has basic eligibility to receive improved pension do not have separate entitlement. Basic eligibility to receive improved pension means that the surviving spouse is in receipt of improved pension or could become entitled to receive improved pension except for the amount of the surviving spouse's countable annual income or the size of the surviving spouse's estate (See § 3.274(c)). Under § 3.23(d)(5) the countable annual income of a surviving spouse includes the countable annual income of each child of the veteran in custody of the surviving spouse to the extent the child's income is reasonably available to or for the surviving spouse, unless in the judgment of the Department of Veterans Affairs to do so would work a hardship on the surviving spouse.</P> <P>(b) <E T="03">Child with no personal custodian or in the custody of an institution.</E> In cases in which there is no personal custodian, i.e., there is no person who has the legal right to exercise parental control and responsibility for the child's welfare (See § 3.57(d)), or the child is in the custody of an institution, pension shall be paid to the child at the annual rate specified in 38 U.S.C. 1542, as increased from time to time under 38 U.S.C. 5312, reduced by the amount of the child's countable annual income. Each time there is an increase under 38 U.S.C. 5312, the actual rate will be published in the “Notices” section of the <E T="04">Federal Register.</E> </P> <P>(c) <E T="03">Child in the custody of person legally responsible for support</E>—(1) <E T="03">Single child.</E> Pension shall be paid to a child in the custody of a person legally responsible for the child's support at an annual rate equal to the difference between the rate for a surviving spouse and one child under §3.23(a)(5), and the sum of the annual income of such child and the annual income of such person or, the maximum annual pension rate under paragraph (b) of this section, whichever is less.</P> <P>(2) <E T="03">More than one child.</E> Pension shall be paid to children in custody of a person legally responsible for the children's support at an annual rate equal to the difference between the rate for a surviving spouse and an equivalent number of children (but not including any child who has countable annual income equal to or greater than the maximum annual pension rate under paragraph (b) of this section) and the sum of the countable annual income of the person legally responsible for support and the combined countable annual income of the children (but not including the income of any child whose countable annual income is equal to or greater than the maximum annual pension rate under paragraph (b) of this section, or the maximum annual pension rate under paragraph (b) of this section times the number of eligible children, whichever is less).</P> <SECAUTH>(Authority: 38 U.S.C. 1542)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Child. See § 3.57(d). Exclusions from income. See § 3.272.</P> </CROSSREF> <CITA>[44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 61 FR 20727, May 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.25</SECTNO> <SUBJECT>Parent's dependency and indemnity compensation (DIC)—Method of payment computation.</SUBJECT> <P>Monthly payments of parents’ DIC shall be computed in accordance with the following formulas:</P> <P>(a) <E T="03">One parent.</E> Except as provided in paragraph (b) of this section, if there is only one parent, the monthly rate specified in 38 U.S.C 1315(b)(1), as increased from time to time under 38 U.S.C. 5312, reduced by $.08 for each dollar of such parent's countable annual income in excess of $800. No payments of DIC may be made under this paragraph, however, if such parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(b)(3), as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under this paragraph may be less than $5 a month.</P> <P>(b) <E T="03">One parent who has remarried.</E> If there is only one parent and the parent has remarried and is living with the parent's spouse, DIC shall be paid under paragraph (a) or paragraph (d) of this section, whichever shall result in the greater benefit being paid to the <PRTPAGE P="168"/>veteran's parent. In the case of remarriage, the total combined annual income of the parent and the parent's spouse shall be counted in determining the monthly rate of DIC.</P> <P>(c) <E T="03">Two parents not living together.</E> The rate computation method in this paragraph applies to:</P> <P>(1) Two parents who are not living together, or</P> <P>(2) An unremarried parent when both parents are living and the other parent has remarried.</P> <FP>The monthly rate of DIC paid to such parent shall be the rate sepcified in 38 U.S.C. 1315(c)(1), as increased from time to time under 38 U.S.C. 5312, reduced by an amount no greater than $.08 for each dollar of such parent's countable annual income in excess of $800, except tht no payments of DIC may be made under this paragraph if such parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(c)(3), as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under this paragraph may be less than $5 monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the reduction under this paragraph shall be recomputed to provide, as nearly as possible, for an equitable distribution of the rate increase. The results of this computation method shall be published in schedular format in the “Notices” section of the <E T="04">Federal Register</E> as provided in paragraph (f) of this section.</FP> <P>(d) <E T="03">Two parents living together or remarried parents living with spouse.</E> The rate computation method in this paragraph applies to each parent living with another parent and to each remarried parent when both parents are alive. The monthly rate of DIC paid to such parents shall be the rate specified in 38 U.S.C. 1315(d)(1), as increased from time to time under 38 U.S.C. 5312, reduced to an amount no greater than $.08 for each dollar of such parent's and spouse's combined countable annual income in excess of $1,000 except that no payments of DIC to a parent under this paragraph may be less than $5 monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the reduction under this paragraph shall be recomputed to provide, as nearly as possible, for an equitable distribution of the rate increase. The results of this computation method shall be published in schedular format in the “Notices” section of the <E T="04">Federal Register</E> as provided in paragraph (f) of this section.</P> <P>(e) <E T="03">Aid and attendance.</E> The monthly rate of DIC payable to a parent under this section shall be increased by the amount specified in 38 U.S.C. 1315(g), as increased from time to time under 38 U.S.C. 5312, if such parent is:</P> <P>(1) A patient in a nursing home, or</P> <P>(2) Helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person.</P> <P>(f) <E T="03">Rate publication.</E> Each time there is an increase under 38 U.S.C. 5312, the actual rates will be published in the “Notices” section of the <E T="04">Federal Register.</E> </P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[52 FR 34907, Sept. 14, 1987, as amended at 61 FR 20727, May 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.26</SECTNO> <SUBJECT>Section 306 and old-law pension annual income limitations.</SUBJECT> <P>(a) The annual income limitations for section 306 pension shall be the amounts specified in section 306(a)(2)(A) of Pub. L. 95-588, as increased from time to time under section 306(a)(3) of Pub. L. 95-588.</P> <P>(b) If a beneficiary under section 306 pension is in need of aid and attendance, the annual income limitation under paragraph (a) of this section shall be increased in accordance with 38 U.S.C. 1521(d), as in effect on December 31, 1978.</P> <P>(c) The annual income limitations for old-law pension shall be the amounts specified in section 306(b)(3) of Pub. L. 95-588, as increased from time to time under section 306(b)(4) of Pub. L. 95-588.</P> <P>(d) Each time there is an increase under section 306 (a)(3) or (b)(4) of Pub. L. 95-588, the actual income limitations will be published in the “Notices” section of the <E T="04">Federal Register.</E> </P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[52 FR 34908, Sept. 14, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="169"/> <SECTNO>§ 3.27</SECTNO> <SUBJECT>Automatic adjustment of benefit rates.</SUBJECT> <P>(a) <E T="03">Improved pension.</E> Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage each maximum annual rate of pension. </P> <PARAUTH>(Authority: 38 U.S.C. 5312(a))</PARAUTH> <P>(b) <E T="03">Parents’ dependency and indemnity compensation</E>—<E T="03">maximum annual income limitation and maximum monthly rates.</E> Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage the annual income limitations and the maximum monthly rates of dependency indemnity compensation for parents. </P> <PARAUTH>(Authority: 38 U.S.C. 5312(b)(1))</PARAUTH> <P>(c) <E T="03">Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans.</E> Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of Title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage the monthly allowance rates under 38 U.S.C. chapter 18. </P> <PARAUTH>(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)</PARAUTH> <P>(d) <E T="03">Publishing requirements.</E> Increases in pension rates, parents' dependency and indemnity compensation rates and income limitation, and the monthly allowance rates under 38 U.S.C. chapter 18 made under this section shall be published in the <E T="04">Federal Register</E>. </P> <PARAUTH>(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312(c)(1))</PARAUTH> <CITA>[44 FR 45934, Aug. 6, 1979, as amended at 52 FR 34908, Sept. 14, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.28</SECTNO> <SUBJECT>Automatic adjustment of section 306 and old-law pension income limitations.</SUBJECT> <P>Whenever the maximum annual rates of improved pension are increased by reason of the provisions of 38 U.S.C. 5312, the following will be increased by the same percentage effective the same date:</P> <P>(a) The maximum annual income limitations applicable to continued receipt of section 306 and old-law pension; and</P> <P>(b) The dollar amount of a veteran's spouse's income that is excludable in determining the income of a veteran for section 306 pension purposes. (See § 3.262(b)(2))</P> <FP>These increases shall be published in the <E T="04">Federal Register</E> at the same time that increases under § 3.27 are published.</FP> <SECAUTH>(Authority: Sec. 306, Pub. L. 95-588). </SECAUTH> <CITA>[52 FR 34908, Sept. 14, 1987]</CITA> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Section 306 and old-law pension annual income limitations. See § 3.26.</P> </CROSSREF> </SECTION> <SECTION> <SECTNO>§ 3.29</SECTNO> <SUBJECT>Rounding.</SUBJECT> <P>(a) <E T="03">Annual rates.</E> Where the computation of an increase in improved pension rates under §§ 3.23 and 3.24 would otherwise result in a figure which includes a fraction of a dollar, the benefit rate will be adjusted to the next higher dollar amount. This method of computation will also apply to increases in old-law and section 306 pension annual income limitations under § 3.26, including the income of a spouse which is excluded from a veteran's countable income, and parents’ dependency and indemnity compensation benefit rates and annual income limitations under § 3.25. </P> <PARAUTH>(Authority: 38 U.S.C. 5312(c)(2))</PARAUTH> <P>(b) <E T="03">Monthly or other periodic pension rates.</E> After determining the monthly or other periodic rate of improved pension under §§ 3.273 and 3.30 or the rate payable under section 306(a) of Pub. L. 95-588 (92 Stat. 2508), the resulting rate, if not a multiple of one dollar, will be rounded down to the nearest whole dollar amount. The provisions of this paragraph apply with respect to amounts of pension payable for periods <PRTPAGE P="170"/>beginning on or after June 1, 1983, under the provisions of 38 U.S.C. 1521, 1541 or 1542, or under section 306(a) of Pub. L. 95-588. </P> <PARAUTH>(Authority: 38 U.S.C. 5123)</PARAUTH> <P>(c) <E T="03">Monthly rates under 38 U.S.C. chapter 18.</E> When increasing the monthly monetary allowance rates under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans, VA will round any resulting rate that is not an even dollar amount to the next higher dollar.</P> <PARAUTH>(Authority: 38 U.S.C. 1805(b)(3), 1815(d), 5312)</PARAUTH> <CITA>[48 FR 34471, July 29, 1983, as amended at 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.30</SECTNO> <SUBJECT>Frequency of payment of improved pension and parents’ dependency and indemnity compensation (DIC).</SUBJECT> <P>Payment shall be made as shown in paragraphs (a), (b), (c), (d), (e), and (f) of this section; however, beneficiaries receiving payment less frequently than monthly may elect to receive payment monthly in cases in which other Federal benefits would otherwise be denied. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(a) <E T="03">Improved pension—Monthly.</E> Payment shall be made monthly if the annual rate payable is $228 or more.</P> <P>(b) <E T="03">Improved pension—Quarterly.</E> Payment shall be made every 3 months on or about March 1, June 1, September l, and December 1, if the annual rate payable is at least $144 but less the $228.</P> <P>(c) <E T="03">Improved pension—Semiannually.</E> Payment shall be made every 6 months on or about June 1, and December 1, if the annual rate payable is at least $72 but less than $144.</P> <P>(d) <E T="03">Improved pension—Annually.</E> Payment shall be made annually on or about June 1, if the annual rate payable is less than $72. </P> <PARAUTH>(Authority: 38 U.S.C. 1508)</PARAUTH> <P>(e) <E T="03">Parents’ DIC—Semiannually.</E> </P> <P>Benefits shall be paid every 6 months on or about June 1, and December 1, if the amount of the annual benefit is less than 4 percent of the maximum annual rate payable under 38 U.S.C. 1315.</P> <P>(f) <E T="03">Payment of less than one dollar.</E> Payments of less than $1 shall not be made.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Pension. See § 3.3(a)(3), (b)(4).</P> </CROSSREF> <CITA>[44 FR 45935, Aug. 6, 1979, as amended at 51 FR 1790, Jan. 15, 1986; 53 FR 7903, Mar. 11, 1988; 57 FR 10425, Mar. 26, 1992]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.31</SECTNO> <SUBJECT>Commencement of the period of payment.</SUBJECT> <P>Regardless of VA regulations concerning effective dates of awards, and except as provided in paragraph (c) of this section, payment of monetary benefits based on original, reopened, or increased awards of compensation, pension, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. However, beneficiaries will be deemed to be in receipt of monetary benefits during the period between the effective date of the award and the date payment commences for the purpose of all laws administered by the Department of Veterans Affairs except that nothing in this section will be construed as preventing the receipt of retired or retirement pay prior to the effective date of waiver of such pay in accordance with 38 U.S.C. 5305.</P> <P>(a) <E T="03">Increased award defined.</E> For the purposes of this section the term <E T="03">increased award</E> means an award which is increased because of an added dependent, increase in disability or disability rating, or reduction in income. The term also includes elections of improved pension under section 306 of Pub. L. 95-588 and awards pursuant to paragraphs 29 and 30 of the Schedule for Rating Disabilities except as provided in paragraph (c) of this section.</P> <P>(b) <E T="03">General rule of applicability.</E> The provisions of this section apply to all original, reopened, or increased awards unless such awards provide only for continuity of entitlement with no increase in rate of payment.<PRTPAGE P="171"/> </P> <P>(c) <E T="03">Specific exclusions.</E> The provisions of this section do not apply to the following types of awards.</P> <P>(1) Surviving spouse's rate for the month of a veteran's death (for exception see § 3.20(b))</P> <P>(2) In cases where military retired or retirement pay is greater than the amount of compensation payable, compensation will be paid as of the effective date of waiver of such pay. However, in cases where the amount of compensation payable is greater than military retired or retirement pay, payment of the available difference for any period prior to the effective date of total waiver of such pay is subject to the general provisions of this section.</P> <P>(3) Adjustments of awards—such as in the case of original or increased apportionments or the termination of any withholding, reduction, or suspension by reason of:</P> <P>(i) Recoupment,</P> <P>(ii) An offset to collect indebtedness,</P> <P>(iii) Institutionalization (hospitalization),</P> <P>(iv) Incompetency,</P> <P>(v) Incarceration,</P> <P>(vi) An estate that exceeds the limitation for certain hospitalized incompetent veterans, or</P> <P>(vii) Discontinuance of apportionments.</P> <P>(4) Increases resulting solely from the enactment of legislation—such as</P> <P>(i) Cost-of-living increases in compensation or dependency and indemnity compensation,</P> <P>(ii) Increases in Improved Pension, parents' dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 pursuant to § 3.27, or</P> <P>(iii) Changes in the criteria for statutory award designations.</P> <P>(5) Temporary total ratings pursuant to paragraph 29 of the Schedule for Rating Disabilities when the entire period of hospitalization or treatment, including any period of post-hospitalization convalescence, commences and terminates within the same calendar month. In such cases the period of payment shall commence on the first day of the month in which the hospitalization or treatment began.</P> <SECAUTH>(Authority: 38 U.S.C. 1822, 5111)</SECAUTH> <CITA>[48 FR 34472, July 29, 1983; 48 FR 37031, Aug. 16, 1983, as amended at 49 FR 47003, Nov. 30, 1984; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.32</SECTNO> <SUBJECT>Exchange rates for foreign currencies.</SUBJECT> <P>When determining the rates of pension or parents’ DIC or the amounts of burial, plot or headstone allowances or accrued benefits to which a claimant or beneficiary may be entitled, income received or expenses paid in a foreign currency shall be converted into U.S. dollar equivalents employing quarterly exchange rates established by the Department of the Treasury.</P> <P>(a) <E T="03">Pension and parents’ DIC.</E> (1) Because exchange rates for foreign currencies cannot be determined in advance, rates of pension and parents’ DIC shall be projected using the most recent quarterly exchange rate and shall be adjusted retroactively based upon actual exchange rates when an annual eligibility verification report is filed.</P> <P>(2) Retroactive adjustments due to fluctuations in exchange rates shall be calculated using the average of the four most recent quarterly exchange rates. If the claimant reports income and expenses for a prior reporting period, the retroactive adjustment shall be calculated using the average of the four quarterly rates which were the most recent available on the closing date of the twelve-month period for which income and expenses are reported.</P> <P>(b) <E T="03">Burial, plot or headstone allowances and accrued benefits.</E> Payment amounts for burial, plot or headstone allowances and claims for accrued benefits as reimbursement from the person who bore the expenses of a deceased beneficiary's last illness or burial shall be determined using the quarterly exchange rate for the quarter in which the expenses forming the basis of the claim were paid. If the claim is filed by an unpaid creditor, however, the quarterly rate for the quarter in which the veteran died shall apply. When entitlement originates during a quarter for which the Department of the Treasury <PRTPAGE P="172"/>has not yet published a quarterly rate, amounts due shall be calculated using the most recent quarterly exchange rate.</P> <CROSSREF> <HD SOURCE="HED">Cross-references:</HD> <P>Accrued benefits. See § 3.1000. Accrued benefits payable to foreign beneficiaries. See § 3.1008.</P> </CROSSREF> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, 1990]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">General</HD> <SECTION> <SECTNO>§ 3.40</SECTNO> <SUBJECT>Philippine and Insular Forces.</SUBJECT> <P>(a) <E T="03">Regular Philippine Scouts.</E> Service in the Philippine Scouts (except that described in paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. Benefits are payable in dollars.</P> <P>(b) <E T="03">Other Philippine Scouts.</E> Service of persons enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation. Such benefits are payable at a rate of $0.50 for each dollar authorized under the law. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive were made under the provisions of Pub. L. 190 as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Pub. L. 190. </P> <PARAUTH>(Authority: 38 U.S.C. 107)</PARAUTH> <P>(c) <E T="03">Commonwealth Army of the Philippines.</E> (1) Service is included, for compensation, dependency and indemnity compensation, and burial allowance, from and after the dates and hours, respectively, when they were called into service of the Armed Forces of the United States by orders issued from time to time by the General Officer, U.S. Army, pursuant to the Military Order of the President of the United States dated July 26, 1941. Service as a guerrilla under the circumstances outlined in paragraph (d) of this section is also included. Except as provided in §§ 3.42 and 3.43, benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. </P> <PARAUTH>(Authority: 38 U.S.C. 107)</PARAUTH> <P>(2) Unless the record shows examination at time of entrance into the Armed Forces of the United States, such persons are not entitled to the presumption of soundness. This also applies upon reentering the Armed Forces after a period of inactive service.</P> <P>(d) <E T="03">Guerrilla service.</E> (1) Persons who served as guerrillas under a commissioned officer of the United States Army, Navy or Marine Corps, or under a commissioned officer of the Commonwealth Army recognized by and cooperating with the United States Forces are included. (See paragraph (c) of this section.) Service as a guerrilla by a member of the Philippine Scouts or the Armed Forces of the United States is considered as service in his or her regular status. (See paragraph (a) of this section.)</P> <P>(2) The following certifications by the service departments will be accepted as establishing guerrilla service:</P> <P>(i) Recognized guerrilla service;</P> <P>(ii) Unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the United States Armed Forces (including the Philippine Scouts), or the Commonwealth Army. This excludes civilians. </P> <FP>A certification of <E T="03">Anti-Japanese Activity</E> will not be accepted as establishing guerrilla service.</FP> <P>(e) <E T="03">Combined service.</E> Where a veteran who had Commonwealth Army or guerrilla service and also had other service, wartime or peacetime, in the Armed Forces of the United States, has disabilities which are compensable separately on a dollar and a $0.50 for each dollar authorized basis, and the disabilities are combined under the authority contained in 38 U.S.C. 1157, the evaluation for which dollars are payable will be first considered and the difference between this evaluation and the combined evaluation will be the basis for computing the amount payable at the rate of $0.50 for each dollar authorized.</P> <CROSSREF> <PRTPAGE P="173"/> <HD SOURCE="HED">Cross Reference:</HD> <P>Computation of service. See § 3.15.</P> </CROSSREF> <CITA>[26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966; 60 FR 18355, Apr. 11, 1995. Redesignated and amended at 66 FR 66767, Dec. 27,2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.41</SECTNO> <SUBJECT>Philippine service.</SUBJECT> <P>(a) For a Regular Philippine Scout or a member of one of the regular components of the Philippine Commonwealth Army while serving with Armed Forces of United States, the period of active service will be from the date certified by the Armed Forces as the date of enlistment or date of report for active duty whichever is later to date of release from active duty, discharge, death, or in the case of a member of the Philippine Commonwealth Army June 30, 1946, whichever was earlier. Release from active duty includes:</P> <P>(1) Leaving one's organization in anticipation of or due to the capitulation.</P> <P>(2) Escape from prisoner-of-war status.</P> <P>(3) Parole by the Japanese.</P> <P>(4) Beginning of missing-in-action status, except where factually shown at that time he was with his or her unit or death is presumed to have occurred while carried in such status: <E T="03">Provided, however,</E> That where there is credible evidence that he was alive after commencement of his or her missing-in-action status, the presumption of death will not apply for Department of Veterans Affairs purposes.</P> <P>(5) Capitulation on May 6, 1942, except that periods of recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer or periods of service in units which continued organized resistance against Japanese prior to formal capitulation will be considered return to active duty for period of such service.</P> <P>(b) Active service of a Regular Philippine Scout or a member of the Philippine Commonwealth Army serving with the Armed Forces of the United States will include a <E T="03">prisoner-of-war</E> status immediately following a period of active duty, or a period of recognized guerrilla service or unrecognized guerrilla service under a recognized commissioned officer. In those cases where following release from active duty as set forth in paragraph (a) of this section, the veteran is factually found by the Department of Veterans Affairs to have been injured or killed by the Japanese because of anti-Japanese activities or his or her former service in the Armed Forces of the United States, such injury or death may be held to have been incurred in active service for Department of Veterans Affairs purposes. Determination shall be based on all available evidence, including service department reports, and consideration shall be given to the character and length of the veteran's former active service in the Armed Forces of the United States.</P> <P>(c) A prisoner-of-war status based upon arrest during general zonification will not be sufficient of itself to bring a case within the definition of return to military control.</P> <P>(d) The active service of members of the irregular forces <E T="03">guerrilla</E> will be the period certified by the service department.</P> <CITA>[26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961. Redesignated at 66 FR 66767, Dec. 27, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.42</SECTNO> <SUBJECT>Compensation at the full-dollar rate for certain Filipino veterans residing in the United States.</SUBJECT> <P>(a) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">United States</E> (U.S.) means the states, territories and possessions of the United States; the District of Columbia, and the Commonwealth of Puerto Rico.</P> <P>(2) <E T="03">Residing in the U.S.</E> means that an individual's principal, actual dwelling place is in the U.S. and that the individual meets the residency requirements of paragraph (c)(4) of this section.</P> <P>(3) <E T="03">Citizen of the U.S.</E> means any individual who acquires U.S. citizenship through birth in the territorial U.S., birth abroad as provided under title 8, United States Code, or through naturalization, and has not renounced his or her U.S. citizenship, or had such citizenship cancelled, revoked, or otherwise terminated.</P> <P>(4) <E T="03">Lawfully admitted for permanent residence</E> means that an individual has been lawfully accorded the privilege of residing permanently in the U.S. as an <PRTPAGE P="174"/>immigrant by the U.S. Immigration and Naturalization Service under title 8, United States Code, such status not having changed.</P> <P>(b) <E T="03">Eligibility requirements.</E> Compensation is payable at the full-dollar rate based on service described in § 3.40(c) or (d) to a veteran who is residing in the United States (U.S.) and is either:</P> <P>(1) A citizen of the U.S., or</P> <P>(2) An alien lawfully admitted for permanent residence in the U.S.</P> <P>(c) <E T="03">Evidence of eligibility for full-dollar rate benefits.</E> (1) A valid original or copy of one of the following documents is required to prove that that the veteran is a natural born citizen of the U.S.:</P> <P>(i) A valid U.S. passport;</P> <P>(ii) A birth certificate showing that he or she was born in the U.S.; or</P> <P>(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad.</P> <P>(2) Only verification by the U.S. Immigration and Naturalization Service to VA that a veteran is a naturalized citizen of the U.S. will be sufficient proof of such status.</P> <P>(3) Only verification by the U.S. Immigration and Naturalization Service to VA that a veteran is an alien lawfully admitted for permanent residence in the U.S. will be sufficient proof of such status.</P> <P>(4) VA will not pay benefits at the full-dollar rate under this section if the veteran's mailing address is a Post Office box, unless evidence from the U.S. Postal Service shows that it does not deliver mail to the veteran's street address. In order to pay benefits at the full-dollar rate, evidence (such as a driver's license, lease agreement, utility bills) must establish that the veteran is residing at a valid street address in the U.S. and receiving mail at that address.</P> <P>(d) <E T="03">Continued eligibility.</E> (1) In order to continue receiving benefits at the full-dollar rate under this section, a veteran must be physically present in the U.S. for at least 183 days of each calendar year in which he or she receives payments at the full-dollar rate, and may not be absent from the U.S. for more than 60 consecutive days at a time. However, if a veteran becomes eligible for full-dollar rate benefits on an initial basis, on or after July 1 of any calendar year, the 183-day rule will not apply during that calendar year. VA will not consider a veteran to have been absent from the U.S. if he or she left and returned to the U.S. on the same date.</P> <P>(2) A veteran receiving benefits at the full-dollar rate under this section must notify VA within 30 days of leaving the U.S. or within 30 days if he or she loses either his or her U.S. citizenship or lawful permanent resident alien status. When a veteran no longer meets the eligibility requirements of paragraph (a) of this section, VA will reduce his or her payment to the rate of $0.50 for each dollar authorized under the law, effective on the date determined under § 3.505. If such veteran regains his or her U.S. citizenship or lawful permanent resident alien status, VA will restore full-dollar rate benefits, effective the date the veteran meets the eligibility requirements in § 3.42.</P> <P>(3) When requested to do so by VA, a veteran receiving benefits at the full-dollar rate under this section must verify that he or she continues to meet the residency and citizenship/permanent-resident-alien status requirements of paragraph (b). VA will advise the veteran at the time of the request that the verification must be furnished within 60 days and that failure to do so will result in the reduction of benefits. If the veteran fails to furnish the evidence within 60 days, VA will reduce his or her payment to the rate of $0.50 for each dollar authorized, as provided in § 3.652.</P> <P>(4) A veteran receiving benefits at the full-dollar rate under this section must promptly notify VA of any change of his or her address. If mail from VA to the veteran is returned to VA by the U.S. Postal Service, VA will reduce his or her payment to the rate of $0.50 for each dollar authorized under law, effective on the date determined under § 3.505.</P> <P>(e) <E T="03">Effective date for restored eligibility.</E> In the case of a veteran receiving benefits at the full-dollar rate, if his or her payments are reduced to the rate of $0.50 for each dollar authorized under the law, VA will resume payments at the full-dollar rate, if otherwise in order, effective the first day of the <PRTPAGE P="175"/>month following the date on which he or she again meets the requirements. However, such increased payments will be retroactive no more than one year prior to the date on which VA receives evidence that he or she again meets the requirements. If payments are reduced based on an absence from the U.S. of 183 or more days during a calendar year, VA will not resume payments at the full-dollar rate before the first day of the following calendar year.</P> <SECAUTH>(Authority: 38 U.S.C. 107, 501(a))</SECAUTH> <CITA>[66 FR 66767, Dec. 27, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.43</SECTNO> <SUBJECT>Burial benefits at the full-dollar rate for certain Filipino veterans residing in the United States on the date of death.</SUBJECT> <P>(a) <E T="03">Definitions.</E> For purposes of this section:</P> <P>(1) <E T="03">United States</E> (U.S.) means the states, territories and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.</P> <P>(2) <E T="03">Residing in the U.S.</E> means an individual's principal, actual dwelling place was in the U.S. When death occurs outside the U.S., VA will consider the deceased individual to have been residing in the U.S. on the date of death if the individual maintained his or her principal actual dwelling place in the U.S. until his or her most recent departure from the U.S., and he or she had been physically absent from the U.S. less than 61 consecutive days when he or she died.</P> <P>(3) <E T="03">Citizen of the U.S.</E> means any individual who acquires U.S. citizenship through birth in the territorial U.S., birth abroad as provided under title 8, United States Code, or through naturalization, and has not renounced his or her U.S. citizenship, or had such citizenship cancelled, revoked, or otherwise terminated.</P> <P>(4) <E T="03">Lawfully admitted for permanent residence</E> means that the individual was lawfully accorded the privilege of residing permanently in the U.S. as an immigrant by the U.S. Immigration and Naturalization Service, and on the date of death, still had this status.</P> <P>(b) <E T="03">Payment of burial benefits at the full-dollar rate.</E> VA will pay burial benefits under chapter 23 of title 38, United States Code, at the full-dollar rate, based on service described in § 3.40(c) or (d), when an individual who performed such service dies after November 1, 2000, and was on the date of death:</P> <P>(1) Residing in the U.S.; and</P> <P>(2) Either—</P> <P>(i) A citizen of the U.S., or</P> <P>(ii) An alien lawfully admitted for permanent residence in the U.S.; and</P> <P>(3) Either—</P> <P>(i) Receiving compensation under chapter 11 of title 38, United States Code; or</P> <P>(ii) Would have satisfied the disability, income and net worth requirements of § 3.3(a)(3) of this part and would have been eligible for pension if the veteran's service had been deemed to be active military, naval, or air service.</P> <P>(c) <E T="03">Evidence of eligibility.</E> (1) In a claim for full-dollar rate burial payments based on the deceased veteran having been a natural born citizen of the U.S., a valid original or copy of one of the following documents is required:</P> <P>(i) A valid U.S. passport;</P> <P>(ii) A birth certificate showing that he or she was born in the U.S.; or</P> <P>(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad.</P> <P>(2) In a claim based on the deceased veteran having been a naturalized citizen of the U.S., only verification of that status by the U.S. Immigration and Naturalization Service to VA will be sufficient proof for purposes of eligibility for full-dollar rate benefits.</P> <P>(3) In a claim based on the deceased veteran having been an alien lawfully admitted for permanent residence in the U.S., only verification of that status by the U.S. Immigration and Naturalization Service to VA will be sufficient proof for purposes of eligibility for full-dollar rate benefits.</P> <P>(4) In a claim for burial benefits at the full-dollar rate, evidence (which may include, for example, a driver's license, lease agreement or utility bills) must establish that the deceased veteran was, on the date of death, residing at a valid street address in the U.S.</P> <SECAUTH>(Authority: 38 U.S.C. 107, 501(a))</SECAUTH> <CITA>[66 FR 66767, Dec. 27, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="176"/> <HD SOURCE="HED">Relationship</HD> <SECTION> <SECTNO>§ 3.50</SECTNO> <SUBJECT>Spouse and surviving spouse.</SUBJECT> <P>(a) <E T="03">Spouse.</E> “Spouse” means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j).</P> <P>(b) <E T="03">Surviving spouse.</E> 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:</P> <P>(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</P> <P>(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.</P> <CITA>[62 FR 5529, Feb. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.52</SECTNO> <SUBJECT>Marriages deemed valid.</SUBJECT> <P>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:</P> <P>(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</P> <P>(b) The claimant entered into the marriage without knowledge of the impediment, and</P> <P>(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</P> <P>(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.</P> <SECAUTH>(Authority: 38 U.S.C. 103(a))</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Definition, marriage. See § 3.205(c).</P> </CROSSREF> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.53</SECTNO> <SUBJECT>Continuous cohabitation.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Findings of fact.</E> 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.</P> <CITA>[41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.54</SECTNO> <SUBJECT>Marriage dates.</SUBJECT> <P>A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section.</P> <P>(a) <E T="03">Pension.</E> Death pension may be paid to a surviving spouse who was married to the veteran:</P> <P>(1) One year or more prior to the veteran's death, or<PRTPAGE P="177"/> </P> <P>(2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or</P> <P>(3) Prior to the applicable delimiting dates, as follows:</P> <P>(i) Civil War—June 27, 1905.</P> <P>(ii) Indian wars—March 4, 1917.</P> <P>(iii) Spanish-American War—January 1, 1938.</P> <P>(iv) Mexican border period and World War I—December 14, 1944.</P> <P>(v) World War II—January 1, 1957.</P> <P>(vi) Korean conflict—February 1, 1965.</P> <P>(vii) Vietnam era—May 8, 1985.</P> <P>(viii) Persian Gulf War—January 1, 2001. </P> <PARAUTH>(Authority: 38 U.S.C. 532(d), 534(c), 536(c), 541(e), 541(f))</PARAUTH> <P>(b) <E T="03">Compensation.</E> 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:</P> <P>(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</P> <P>(2) One year or more, or</P> <P>(3) For any period of time if a child was born of the marriage, or was born to them before the marriage. </P> <PARAUTH>(Authority: 38 U.S.C. 1102)</PARAUTH> <P>(c) <E T="03">Dependency and indemnity compensation.</E> 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:</P> <P>(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</P> <P>(2) For 1 year or more, or</P> <P>(3) For any period of time if a child was born of the marriage, or was born to them before the marriage. </P> <PARAUTH>(Authority: 38 U.S.C. 1304)</PARAUTH> <P>(d) <E T="03">Child born.</E> The term <E T="03">child born of the marriage</E> means a birth on or after the date of the marriage on which the surviving spouse's entitlement is predicated. The term <E T="03">born to them before the marriage</E> 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.</P> <P>(e) <E T="03">More than one marriage to veteran.</E> 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.</P> <SECAUTH>(Authority: 38 U.S.C. 103(b))</SECAUTH> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.55</SECTNO> <SUBJECT>Reinstatement of benefits eligibility based upon terminated marital relationships.</SUBJECT> <P>(a) <E T="03">Surviving spouse.</E> (1) Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage:</P> <P>(i) Was void, or</P> <P>(ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion.</P> <P>(2) On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage:</P> <P>(i) Has been terminated by death, or</P> <P>(ii) Has been dissolved by a court with basic authority to render divorce <PRTPAGE P="178"/>decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion.</P> <P>(3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. </P> <PARAUTH>(Authority: 38 U.S.C. 1311(e))</PARAUTH> <P>(4) On or after December 1, 1999, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1713, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. </P> <PARAUTH>(Authority: 38 U.S.C. 103(d))</PARAUTH> <P>(5) On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to November 1, 1990.</P> <P>(6) On or after October 1, 1998, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of dependency and indemnity compensation to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. </P> <PARAUTH>(Authority: 38 U.S.C. 1311(e))</PARAUTH> <P>(7) On or after December 1, 1999, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1713, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37 to the surviving spouse if he or she ceases living with such other person and holding himself or herself out openly to the public as such other person's spouse. </P> <PARAUTH>(Authority: 38 U.S.C. 103(d)).</PARAUTH> <P>(8) On or after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because his or her conduct or a relationship into which he or she had entered had raised an inference or presumption that he or she had remarried or had been determined to be open and notorious adulterous cohabitation, or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after he or she terminates the conduct or relationship, if the relationship terminated prior to November 1, 1990.</P> <P>(b) <E T="03">Child.</E> (1) Marriage of a child shall not bar the furnishing of benefits to or on account of such child, if the marriage:</P> <P>(i) Was void, or</P> <P>(ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion.</P> <P>(2) On or after January 1, 1975, marriage of a child terminated prior to November 1, 1990, shall not bar the furnishing of benefits to or for such child provided that the marriage:</P> <P>(i) Has been terminated by death, or</P> <P>(ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by either party or by collusion.</P> <SECAUTH>(Authority: 38 U.S.C. 103; 105 Stat. 424, 106 Stat. 4322)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Evidence. See §§ 3.206 and 3.207. Termination of marital relationship or conduct. See § 3.215.</P> </CROSSREF> <CITA>[58 FR 32444, June 10, 1993, as amended at 60 FR 52863, Oct. 11, 1995; 64 FR 30245, June 7, 1999; 65 FR 43700, July 14, 2000]</CITA> </SECTION> <SECTION> <PRTPAGE P="179"/> <SECTNO>§ 3.56</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.57</SECTNO> <SUBJECT>Child.</SUBJECT> <P>(a) <E T="03">General.</E> (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term <E T="03">child</E> of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and</P> <P>(i) Who is under the age of 18 years; or</P> <P>(ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or</P> <P>(iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. For the purposes of this section and § 3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria. The term includes schools, colleges, academies, seminaries, technical institutes, and universities, but does not include home-school programs. </P> <PARAUTH>(Authority: 38 U.S.C. 101(4)(A), 104(a))</PARAUTH> <P>(2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term <E T="03">child</E> of the veteran also includes the following unmarried persons:</P> <P>(i) A person who was adopted by the veteran between the ages of 18 and 23 years.</P> <P>(ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death.</P> <P>(3) Subject to the provisions of paragraphs (c) and (e) of this section, the term <E T="03">child</E> also includes a person who became permanently incapable of self-support before reaching the age of 18 years, who was a member of the veteran's household at the time he or she became 18 years of age, and who was adopted by the veteran, regardless of the age of such person at the time of adoption. </P> <PARAUTH>(Authority: 38 U.S.C. 101(4)(A))</PARAUTH> <P>(b) <E T="03">Stepchild.</E> The term means a legitimate or an illegitimate child of the veteran's spouse. A child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of § 3.52, and who otherwise meets the requirements of this section is included.</P> <P>(c) <E T="03">Adopted child.</E> Except as provided in paragraph (e) of this section, the term means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. The term includes, as of the date of death of a veteran, such a child who:</P> <P>(1) Was living in the veteran's household at the time of the veteran's death, and</P> <P>(2) Was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and</P> <P>(3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. </P> <PARAUTH>(Authority: 38 U.S.C. 101(4))</PARAUTH> <P>(d) Definition of <E T="03">child custody.</E> The provisions of this paragraph are for the purpose of determining entitlement to improved pension under §§ 3.23 and 3.24.</P> <P>(1) Custody of a child shall be considered to rest with a veteran, surviving spouse of a veteran or person legally responsible for the child's support if that person has the legal right to exercise parental control and responsibility <PRTPAGE P="180"/>for the welfare and care of the child. A child of the veteran residing with the veteran, surviving spouse of the veteran who is the child's natural or adoptive parent, or person legally responsible for the child's support shall be presumed to be in the custody of that individual. Where the veteran, surviving spouse, or person legally responsible for the child's support has not been divested of legal custody, but the child is not residing with that individual, the child shall be considered in the custody of the individual for purposes of Department of Veterans Affairs benefits.</P> <P>(2) The term <E T="03">person legally responsible for the child's support</E> means a person who is under a legally imposed obligation (e.g., by statute or court order) to provide for the child's support, as well as a natural or adoptive parent who has not been divested of legal custody. If the child's natural or adoptive parent has remarried, the stepparent may also be considered a person legally responsible for the child's support. A child shall be considered in the joint custody of his or her stepparent and natural or adoptive parent so long as the natural or adoptive parent and the stepparent are not estranged and residing apart, and the natural or adoptive parent has not been divested of legal custody. When a child is in such joint custody the combined income of the natural or adoptive parent and the stepparent shall be included as income of the person legally responsible for support under § 3.24(c).</P> <P>(3) A person having custody of a child prior to the time the child attains age 18 shall be considered to retain custody of the child for periods on and after the child's 18th birthday, unless the person is divested of legal custody. This applies without regard to when a child reaches the age of majority under applicable State law. This also applies without regard to whether the child was entitled to pension prior to age 18, or whether increased pension was payable to a veteran or surviving spouse on behalf of the child prior to the child's 18th birthday. If the child's custodian dies after the child has attained age 18, the child shall be considered to be in custody of a successor custodian provided the successor custodian has the right to exercise parental control and responsibility for the welfare and care of the child. </P> <PARAUTH>(Authority: 38 U.S.C. 501, 1521(c), 1541(c))</PARAUTH> <P>(e) <E T="03">Child adopted under foreign law—</E>(1) <E T="03">General.</E> The provisions of this paragraph are applicable to a person adopted under the laws of any jurisdiction other than a State. The term <E T="03">State</E> is defined in 38 U.S.C. 101(20) and also includes the Commonwealth of the Northern Mariana Islands. The term <E T="03">veteran</E> includes, for the purposes of this paragraph, a Commonwealth Army veteran or new Philippine Scout as defined in 38 U.S.C. 3566.</P> <P>(2) <E T="03">Adopted child of living veteran.</E> A person residing outside any of the States shall not be considered to be a legally adopted child of a veteran during the lifetime of the veteran unless all of the following conditions are met.</P> <P>(i) The person was less than 18 years of age at the time of adoption.</P> <P>(ii) The person is receiving one-half or more of the person's support from the veteran.</P> <P>(iii) The person is not in the custody of the person's natural parent unless the natural parent is the veteran's spouse.</P> <P>(iv) The person is residing with the veteran (or in the case of divorce following adoption, with the divorced spouse who is also a natural or adoptive parent) except for periods during which the person is residing apart from the veteran for purposes of full-time attendance at an educational institution or during which the person or the veteran is confined in a hospital, nursing home, other health-care facility, or other institution.</P> <P>(3) <E T="03">Adopted child of deceased veteran.</E> A person shall not be considered to have been a legally adopted child of a veteran as of the date of the veteran's death and thereafter unless one of the following conditions is met.</P> <P>(i) The veteran was entitled to and was receiving for the person a dependent's allowance or similar monetary benefit payable under title 38, United States Code at any time within the 1-year period immediately preceding the veteran's death; or</P> <P>(ii) The person met the requirements of paragraph (e)(2) of this section for a <PRTPAGE P="181"/>period of at least 1 year prior to the veteran's death.</P> <P>(4) <E T="03">Verification.</E> In the case of an adopted child of a living veteran, the requirements of paragraphs (e)(2)(ii), (iii) and (iv) of this section are for prospective application. That is, in addition to meeting all of the requirements of paragraph (e)(2) of this section at the time of initial adjudication, benefits are not payable thereafter for or to a child adopted under the laws of any jurisdiction other than a State unless the requirements of paragraphs (e)(2)(ii), (iii) and (iv) of this section continue to be met. Consequently, whenever Department of Veterans Affairs benefits are payable to or for a child adopted under the laws of any jurisdiction other than a State, and the veteran who adopted the child is living, the beneficiary shall submit, upon Department of Veterans Affairs request, a report, or other evidence, to determine if the requirements of paragraph (e)(2)(ii), (iii), and (iv) of this section were met for any period for which payment was made for or to the child and whether such requirements will continue to be met for future entitlement periods. Failure to submit the requested report or evidence within a reasonable time from date of request may result in termination of benefits payable for or to the child.</P> <SECAUTH>(Authority: 38 U.S.C. 101(4), 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Improved pension rates. See § 3.23. Improved pension rates; surviving children. See § 3.24. Child's relationship. See § 3.210. Helplessness. See § 3.403(a)(1). Helplessness. See § 3.503(a)(3). School attendance. See § 3.667. Helpless children—Spanish-American and prior wars. See § 3.950.</P> </CROSSREF> <CITA>[44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at 45 FR 25391, Apr. 15, 1980; 49 FR 47003, Nov. 30, 1984; 65 FR 12116, Mar. 8, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.58</SECTNO> <SUBJECT>Child adopted out of family.</SUBJECT> <P>A child of a veteran adopted out of the family of the veteran either prior or subsequent to the veteran's death is nevertheless a <E T="03">child</E> within the meaning of that term as defined by § 3.57 and is eligible for benefits payable under all laws administered by the Department of Veterans Affairs.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Veteran's benefits not apportionable. See § 3.458.</P> </CROSSREF> <CITA>[26 FR 1568, Feb. 24, 1961]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.59</SECTNO> <SUBJECT>Parent.</SUBJECT> <P>(a) The term <E T="03">parent</E> means a natural mother or father (including the mother of an illegitimate child or the father of an illegitimate child if the usual family relationship existed), mother or father through adoption, or a person who for a period of not less than 1 year stood in the relationship of a parent to a veteran at any time before his or her entry into active service.</P> <P>(b) Foster relationship must have begun prior to the veteran's 21st birthday. Not more than one father and one mother, as defined, will be recognized in any case. If two persons stood in the relationship of father or mother for 1 year or more, the person who last stood in such relationship before the veteran's last entry into active service will be recognized as the <E T="03">parent.</E> </P> <SECAUTH>(Authority: 38 U.S.C. 101(5))</SECAUTH> <CITA>[26 FR 1568, Feb. 24, 1961, as amended at 44 FR 45935, Aug. 6, 1979]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.60</SECTNO> <SUBJECT>Definition of “living with”.</SUBJECT> <P>For the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged.</P> <SECAUTH>(Authority: 38 U.S.C. 1521(h)(2))</SECAUTH> <CITA>[44 FR 45935, Aug. 6, 1979]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Administrative</HD> <SECTION> <SECTNO>§ 3.100</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> <P>(a) Authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Veterans Benefits Administration designated by the Under Secretary to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of Compensation and Pension Service.<PRTPAGE P="182"/> </P> <P>(b) Authority is delegated to the Director, Compensation and Pension Service, and to personnel of that service designated by him to determine whether a claimant or payee has forfeited the right to gratuitious benefits or to remit a prior forfeiture pursuant to the provisions of 38 U.S.C. 6103 or 6104. See § 3.905.</P> <SECAUTH>(Authority: 38 U.S.C. 512(a))</SECAUTH> <CITA>[29 FR 7547, June 12, 1964, as amended at 31 FR 14455, Nov. 10, 1966; 37 FR 10442, May 23, 1972; 53 FR 3207, Feb. 4, 1988; 60 FR 18355, Apr. 11, 1995; 61 FR 20727, May 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.102</SECTNO> <SUBJECT>Reasonable doubt.</SUBJECT> <P>It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.103</SECTNO> <SUBJECT>Procedural due process and appellate rights.</SUBJECT> <P>(a) <E T="03">Statement of policy.</E> Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.</P> <P>(b) <E T="03">The right to notice—</E>(1) <E T="03">General.</E> Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.</P> <P>(2) <E T="03">Advance notice and opportunity for hearing.</E> Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.</P> <P>(3) <E T="03">Exceptions.</E> In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:</P> <P>(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice <PRTPAGE P="183"/>that such information would be used to calculate benefit amounts.</P> <P>(ii) An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.</P> <P>(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.</P> <P>(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).</P> <P>(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see § 3.654 regarding active service pay).</P> <P>(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a). </P> <PARAUTH>(Authority: 38 U.S.C. 501(a))</PARAUTH> <P>(4) <E T="03">Restoration of benefits.</E> VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.</P> <P>(c) <E T="03">The right to a hearing.</E> (1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in § 20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.</P> <P>(2) The purpose of a hearing is to permit the claimant to introduce into the record, <E T="03">in person,</E> any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may <PRTPAGE P="184"/>request visual examination by a physician designated by VA and the physician's observations will be read into the record. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(d) <E T="03">Submission of evidence.</E> Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.</P> <P>(e) <E T="03">The right to representation.</E> Subject to the provisions of §§ 14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.</P> <P>(f) <E T="03">Notification of decisions.</E> The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph (c) of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered.</P> <SECAUTH>(Authority:38 U.S.C. 501, 1115, 1506, 5104.)</SECAUTH> <CITA>[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.104</SECTNO> <SUBJECT>Finality of decisions.</SUBJECT> <P>(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part.</P> <P>(b) Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.</P> <CITA>[29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.105</SECTNO> <SUBJECT>Revision of decisions.</SUBJECT> <P>The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment.</P> <P>(a) <E T="03">Error.</E> Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an <PRTPAGE P="185"/>award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.</P> <P>(b) <E T="03">Difference of opinion.</E> Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office. However, a decision may be revised under § 3.2600 without being recommended to Central Office.</P> <P>(c) <E T="03">Character of discharge.</E> A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions of paragraph (d) of this section.</P> <P>(d) <E T="03">Severance of service connection.</E> Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Department of Veterans Affairs issue, the provisions of § 3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. </P> <PARAUTH>(Authority: 38 U.S.C. 5112(b)(6))</PARAUTH> <P>(e) <E T="03">Reduction in evaluation—compensation.</E> Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. </P> <PARAUTH>(Authority: 38 U.S.C. 5112(b)(6))</PARAUTH> <P>(f) <E T="03">Reduction in evaluation—pension.</E> Where a change in disability or employability warrants a reduction or discontinuance of pension payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that pension benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in <PRTPAGE P="186"/>which the final rating action is approved. </P> <PARAUTH>(Authority: 38 U.S.C. 5112(b)(5))</PARAUTH> <P>(g) <E T="03">Reduction in evaluation—monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans.</E> Where a reduction or discontinuance of a monetary allowance currently being paid under 38 U.S.C. chapter 18 is considered warranted, VA will notify the beneficiary at his or her latest address of record of the proposed reduction, furnish detailed reasons therefor, and allow the beneficiary 60 days to present additional evidence to show that the monetary allowance should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if VA does not receive additional evidence within that period, it will take final rating action and reduce the award effective the last day of the month following 60 days from the date of notice to the beneficiary of the proposed reduction. </P> <PARAUTH>(Authority: 38 U.S.C. 1822, 5112(b)(6))</PARAUTH> <P>(h) <E T="03">Other reductions/discontinuances.</E> Except as otherwise specified at § 3.103(b)(3) of this part, where a reduction or discontinuance of benefits is warranted by reason of information received concerning income, net worth, dependency, or marital or other status, a proposal for the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that the benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final adverse action will be taken and the award will be reduced or discontinued effective as specified under the provisions of §§ 3.500 through 3.503 of this part. </P> <PARAUTH>(Authority: 38 U.S.C. 5112)</PARAUTH> <P>(i) <E T="03">Predetermination hearings.</E> (1) In the advance written notice concerning proposed actions under paragraphs (d) through (h) of this section, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice. If a timely request is received, VA will notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. The 10 day advance notice may be waived by agreement between VA and the beneficiary or representative. The hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing is timely requested, benefit payments shall be continued at the previously established level pending a final determination concerning the proposed action.</P> <P>(2) Following the predetermination procedures specified in this paragraph and paragraph (d), (e), (f), (g) or (h) of this section, whichever is applicable, final action will be taken. If a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or beneficiary, death of an immediate family member, etc. If a predetermination hearing was conducted, the final action will be based on evidence and testimony adduced at the hearing as well as the other evidence of record including any additional evidence obtained following the hearing pursuant to necessary development. Whether or not a predetermination hearing was conducted, a written notice of the final action shall be issued to the beneficiary and his or her representative, setting forth the reasons therefor and the evidence upon which it is based. Where a reduction or discontinuance of benefits is found warranted following consideration of any additional evidence submitted, the effective date of such reduction or discontinuance shall be as follows:<PRTPAGE P="187"/> </P> <P>(i) Where reduction or discontinuance was proposed under the provisions of paragraph (d) or (e) of this section, the effective date of final action shall be the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final action expires.</P> <P>(ii) Where reduction or discontinuance was proposed under the provisions of paragraphs (f) and (g) of this section, the effective date of final action shall be the last day of the month in which such action is approved.</P> <P>(iii) Where reduction or discontinuance was proposed under the provisions of paragraph (h) of this section, the effective date of final action shall be as specified under the provisions of §§ 3.500 through 3.503 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 5112)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Effective dates. See § 3.400. Reductions and discontinuances. See § 3.500. Protection; service connection. See § 3.957.</P> </CROSSREF> <CITA>[26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222, May 14, 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65846, Dec. 19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR 51278, Sept. 30, 1997; 66 FR 21874, May 2, 2001; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.106</SECTNO> <SUBJECT>Renouncement.</SUBJECT> <P>(a) Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by the Department of Veterans Affairs may renounce his or her right to that benefit but may not renounce less than all of the component items which together comprise the total amount of the benefit to which the person is entitled nor any fixed monetary amounts less than the full amount of entitlement. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement in the Department of Veterans Affairs, payment of such benefits and the right thereto will be terminated, and such person will be denied any and all rights thereto from such filing. </P> <PARAUTH>(Authority: 38 U.S.C. 5306(a))</PARAUTH> <P>(b) The renouncement will not preclude the person from filing a new application for pension, compensation, or dependency and indemnity compensation at any future date. Such new application will be treated as an original application, and no payments will be made thereon for any period before the date such new application is received in the Department of Veterans Affairs. </P> <PARAUTH>(Authority: 38 U.S.C. 5306(b))</PARAUTH> <P>(c) Notwithstanding the provisions of paragraph (b) of this section, if a new application for pension or parents’ dependency and indemnity compensation is filed within one year after the date that the Department of Veterans Affairs receives a renouncement of that benefit, such application shall not be treated as an original application and benefits will be payable as if the renouncement had not occurred. </P> <PARAUTH>(Authority: 38 U.S.C. 5306(c))</PARAUTH> <P>(d) The renouncement of dependency and indemnity compensation by one beneficiary will not serve to increase the rate payable to any other beneficiary in the same class.</P> <P>(e) The renouncement of dependency and indemnity compensation by a surviving spouse will not serve to vest title to this benefit in children under the age of 18 years or to increase the rate payable to a child or children over the age of 18 years.</P> <CITA>[26 FR 1569, Feb. 24, 1961, as amended at 37 FR 5384, Mar. 15, 1972; 39 FR 17222, May 14, 1974; 60 FR 18355, Apr. 11, 1995; 62 FR 5529, Feb. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.107</SECTNO> <SUBJECT>Awards where not all dependents apply.</SUBJECT> <P>Except as provided in § 3.251(a)(4), in any case where claim has not been filed by or on behalf of all dependents who may be entitled, the awards (original or amended) for those dependents who have filed claim will be made for all periods at the rates and in the same manner as though there were no other dependents. However, if the file reflects the existence of other dependents who have not filed claim and there is potential entitlement to benefits for a period prior to the date of filing claim, the award to a person who has filed claim will be made at the rate which would be payable if all dependents were receiving benefits. If at the expiration of the period allowed, claims have not <PRTPAGE P="188"/>been filed for such dependents, the full rate will be authorized for the first payee.</P> <CITA>[29 FR 9564, July 15, 1964]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.108</SECTNO> <SUBJECT>State Department as agent of Department of Veterans Affairs.</SUBJECT> <P>Diplomatic and consular officers of the Department of State are authorized to act as agents of the Department of Veterans Affairs and therefore a formal or informal claim or evidence submitted in support of a claim filed in a foreign country will be considered as filed in the Department of Veterans Affairs as of the date of receipt by the State Department representative.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence from foreign countries. See § 3.202.</P> </CROSSREF> <CITA>[26 FR 1569, Feb. 24, 1961]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.109</SECTNO> <SUBJECT>Time limit.</SUBJECT> <P>(a) <E T="03">Notice of time limit for filing evidence.</E> (1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person who has filed claim is not considered evidence.</P> <P>(2) The provisions of this paragraph are applicable to original applications, formal or informal, and to applications for increased benefits by reason of increased disability, age, or the existence of a dependent and to applications for reopening or resumption of payments. If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included.</P> <P>(b) <E T="03">Extension of time limit.</E> Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.110</SECTNO> <SUBJECT>Computation of time limit.</SUBJECT> <P>(a) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation.</P> <P>(b) <E T="03">The first day of the specified period</E> referred to in paragraph (a) of this section shall be the date of mailing of notification to the claimant or beneficiary of the action required and the time limit therefor. The date of the letter of notification shall be considered the date of mailing for purposes of computing time limits. As to appeals, see §§ 20.302 and 20.305 of this chapter.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[55 FR 13529, Apr. 11, 1990, as amended at 58 FR 32443, June 10, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.111</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.112</SECTNO> <SUBJECT>Fractions of one cent.</SUBJECT> <P>In all cases where the amount to be paid under any award involves a fraction of a cent, the fractional part will be excluded.</P> <CITA>[26 FR 1570, Feb. 24, 1961]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.114</SECTNO> <SUBJECT>Change of law or Department of Veterans Affairs issue.</SUBJECT> <P>(a) <E T="03">Effective date of award.</E> Where pension, compensation, dependency and indemnity compensation, or a monetary <PRTPAGE P="189"/>allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.</P> <P>(1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.</P> <P>(2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.</P> <P>(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. </P> <PARAUTH>(Authority: 38 U.S.C. 1822, 5110(g))</PARAUTH> <P>(b) <E T="03">Discontinuance of benefits.</E> Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired.</P> <SECAUTH>(Authority: 38 U.S.C. 5112(b)(6))</SECAUTH> <CITA>[27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.115</SECTNO> <SUBJECT>Access to financial records.</SUBJECT> <P>(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.</P> <P>(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).</P> <SECAUTH>(Authority: 38 U.S.C. 5319)</SECAUTH> <CITA>[58 FR 32445, June 10, 1993]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Claims</HD> <SECTION> <SECTNO>§ 3.150</SECTNO> <SUBJECT>Forms to be furnished.</SUBJECT> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 5102)</PARAUTH> <P>(b) Upon receipt of notice of death of a veteran, the appropriate application <PRTPAGE P="190"/>form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or dependency and indemnity compensation. If it is not indicated that any person would be entitled to such benefits, but there is payable an accrued benefit not paid during the veteran's lifetime, the appropriate application form will be forwarded to the preferred dependent. Notice of the time limit will be included in letters forwarding applications for benefits.</P> <P>(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.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P> Extension of time limit. <E T="03">See</E> § 3.109(b).</P> </CROSSREF> <CITA>[26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.151</SECTNO> <SUBJECT>Claims for disability benefits.</SUBJECT> <P>(a) <E T="03">General.</E> A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.</P> <P>(b) <E T="03">Retroactive disability pension claims.</E> Where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the veteran became permanently and totally disabled. Additional requirements for entitlement to a retroactive pension award are contained in § 3.400(b) of this part.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Informal claims. See § 3.155(b).</P> </CROSSREF> <SECAUTH>(Authority: 38 U.S.C 5110(b)(3))</SECAUTH> <CITA>[50 FR 25981, June 24, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.152</SECTNO> <SUBJECT>Claims for death benefits.</SUBJECT> <P>(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.) </P> <PARAUTH>(Authority: 38 U.S.C. 5101(a))</PARAUTH> <P>(b)(1) A claim by a surviving spouse or child for compensation or dependency and indemnity compensation will also be considered to be a claim for death pension and accrued benefits, and a claim by a surviving spouse or child for death pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. </P> <PARAUTH>(Authority: 38 U.S.C. 5101(b)(1))</PARAUTH> <P>(2) A claim by a parent for compensation or dependency and indemnity compensation will also be considered to be a claim for accrued benefits. </P> <PARAUTH>(Authority: 38 U.S.C. 5101(b)(2))</PARAUTH> <P>(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.</P> <P>(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.</P> <P>(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 <PRTPAGE P="191"/>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.</P> <P>(4) Where payments of pension, compensation or dependency and indemnity compensation to a surviving spouse have been discontinued because of remarriage or death, or a child becomes eligible for dependency and indemnity compensation by reason 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.</P> <SECAUTH>(Authority: 38 U.S.C 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>State Department as agent of Department of Veterans Affairs. See § 3.108. Change in status of dependents. See § 3.651.</P> </CROSSREF> <CITA>[50 FR 25981, June 24, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.153</SECTNO> <SUBJECT>Claims filed with Social Security.</SUBJECT> <P>An application on a form jointly prescribed by the Secretary and the Secretary of Health, Education, and Welfare filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration. The receipt of such an application (or copy thereof) by the Department of Veterans Affairs will not preclude a request for any necessary evidence.</P> <SECAUTH>(Authority: 38 U.S.C. 5105)</SECAUTH> <CITA>[26 FR 1570, Feb. 24, 1961]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.154</SECTNO> <SUBJECT>Injury due to hospital treatment, etc.</SUBJECT> <P>A formal claim for pension, compensation, dependency and indemnity compensation or any statement in a communication showing an intent to file a claim for disability or for death benefits resulting from the pursuit of a course of vocational rehabilitation, hospitalization, medical or surgical treatment, or examination under Department of Veterans Affairs laws may be accepted as a claim.</P> <SECAUTH>(Authority: 38 U.S.C. 1151)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Effective dates. See § 3.400. Disability or death due to hospitalization, etc. See § 3.800(a).</P> </CROSSREF> <CITA>[27 FR 11887, Dec. 1, 1962]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.155</SECTNO> <SUBJECT>Informal claims.</SUBJECT> <P>(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.</P> <P>(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.</P> <P>(c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>State Department as agent of VA. See § 3.108. Report of examination or hospitalization—as claim for increase or to reopen. See § 3.157.</P> </CROSSREF> <CITA>[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]</CITA> </SECTION> <SECTION> <PRTPAGE P="192"/> <SECTNO>§ 3.156</SECTNO> <SUBJECT>New and material evidence.</SUBJECT> <P>(a) A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. </P> <PARAUTH>(Authority: 38 U.S.C. 501, 5103A(f), 5108)</PARAUTH> <P>(b) New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(c) Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).</P> </CROSSREF> <CITA>[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.157</SECTNO> <SUBJECT>Report of examination or hospitalization as claim for increase or to reopen.</SUBJECT> <P>(a) <E T="03">General.</E> Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. </P> <PARAUTH>(Authority: 38 U.S.C. 5110(a))</PARAUTH> <P>(b) <E T="03">Claim.</E> Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. In addition, receipt of one of the following will be accepted as an informal claim in the case of a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay. The evidence listed will also <PRTPAGE P="193"/>be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.</P> <P>(1) <E T="03">Report of examination or hospitalization by Department of Veterans Affairs or uniformed services.</E> The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(2) <E T="03">Evidence from a private physician or layman.</E> The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.</P> <P>(3) <E T="03">State and other institutions.</E> When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals (except those described in paragraph (b)(1) of this section). These records must be authenticated by an appropriate official of the institution. Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination. Reports received from private institutions not listed by the American Hospital Association must be certified by the Chief Medical Officer of the Department of Veterans Affairs or physician designee.</P> <CITA>[26 FR 1571, Feb. 24, 1961, as amended at 27 FR 4421, May 9, 1962; 31 FR 12055, Sept. 15, 1966; 40 FR 56434, Dec. 3, 1975; 52 FR 27340, July 21, 1987; 60 FR 27409, May 24, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.158</SECTNO> <SUBJECT>Abandoned claims.</SUBJECT> <P>(a) <E T="03">General.</E> Except as provided in § 3.652 of this part, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence shall commence not earlier than the date of filing the new claim. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(b) <E T="03">Department of Veterans Affairs examinations.</E> Where the veteran fails without adequate reason to respond to an order to report for Department of Veterans Affairs examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned.</P> <P>(c) <E T="03">Disappearance.</E> Where payments of pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 have not been made or have been discontinued because a payee's present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Periodic certification of continued eligibility. See § 3.652. Failure <PRTPAGE P="194"/>to report for VA examination. See § 3.655. Disappearance of veteran. See § 3.656.</P> </CROSSREF> <CITA>[27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.159</SECTNO> <SUBJECT>Department of Veterans Affairs assistance in developing claims.</SUBJECT> <P>(a) <E T="03">Definitions.</E> For purposes of this section, the following definitions apply:</P> <P>(1) <E T="03">Competent medical evidence</E> means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.</P> <P>(2) <E T="03">Competent lay evidence</E> means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.</P> <P>(3) <E T="03">Substantially complete application</E> means an application containing the claimant's name; his or her relationship to the veteran, if applicable; sufficient service information for VA to verify the claimed service, if applicable; the benefit claimed and any medical condition(s) on which it is based; the claimant's signature; and in claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income.</P> <P>(4) For purposes of paragraph (c)(4)(i) of this section, <E T="03">event</E> means one or more incidents associated with places, types, and circumstances of service giving rise to disability.</P> <P>(5) <E T="03">Information</E> means non-evidentiary facts, such as the claimant's Social Security number or address; the name and military unit of a person who served with the veteran; or the name and address of a medical care provider who may have evidence pertinent to the claim.</P> <P>(b) <E T="03">VA's duty to notify claimants of necessary information or evidence.</E> (1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. If VA does not receive the necessary information and evidence requested from the claimant within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. If the claimant has not responded to the request within 30 days, VA may decide the claim prior to the expiration of the one-year period based on all the information and evidence contained in the file, including information and evidence it has obtained on behalf of the claimant and any VA medical examinations or medical opinions. If VA does so, however, and the claimant subsequently provides the information and evidence within one year of the date of the request, VA must readjudicate the claim. </P> <PARAUTH>(Authority: 38 U.S.C. 5103)</PARAUTH> <P>(2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. </P> <PARAUTH>(Authority: 38 U.S.C. 5102(b), 5103A(3))</PARAUTH> <P>(c) <E T="03">VA's duty to assist claimants in obtaining evidence.</E> Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. In addition, VA will give the assistance described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual attempting to reopen a finally decided claim. VA will not pay any fees <PRTPAGE P="195"/>charged by a custodian to provide records requested.</P> <P>(1) <E T="03">Obtaining records not in the custody of a Federal department or agency.</E> VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.</P> <P>(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.</P> <P>(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(b))</PARAUTH> <P>(2) <E T="03">Obtaining records in the custody of a Federal department or agency.</E> VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.</P> <P>(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records.</P> <P>(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(b))</PARAUTH> <P>(3) <E T="03">Obtaining records in compensation claims.</E> In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, <PRTPAGE P="196"/>the condition for which treatment was provided. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(c))</PARAUTH> <P>(4) <E T="03">Providing medical examinations or obtaining medical opinions.</E> (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:</P> <P>(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;</P> <P>(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in § 3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and</P> <P>(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.</P> <P>(ii) Paragraph (4)(i)(C) could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service.</P> <P>(iii) Paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(d))</PARAUTH> <P>(d) <E T="03">Circumstances where VA will refrain from or discontinue providing assistance.</E> VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:</P> <P>(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;</P> <P>(2) Claims that are inherently incredible or clearly lack merit; and</P> <P>(3) An application requesting a benefit to which the claimant is not entitled as a matter of law. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(a)(2))</PARAUTH> <P>(e) <E T="03">Duty to notify claimant of inability to obtain records.</E> (1) If VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. In either case, the notice must contain the following information:</P> <P>(i) The identity of the records VA was unable to obtain;</P> <P>(ii) An explanation of the efforts VA made to obtain the records;</P> <P>(iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and</P> <P>(iv) A notice that the claimant is ultimately responsible for providing the evidence.</P> <P>(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will request that the claimant <PRTPAGE P="197"/>obtain the records and provide them to VA. </P> <PARAUTH>(Authority: 38 U.S.C. 5103A(b)(2))</PARAUTH> <P>(f) For the purpose of the notice requirements in paragraphs (b) and (e) of this section, notice to the claimant means notice to the claimant or his or her fiduciary, if any, as well as to his or her representative, if any. </P> <PARAUTH>(Authority: 38 U.S.C. 5102(b), 5103(a))</PARAUTH> <CITA>[66 FR 45630, Aug. 29, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.160</SECTNO> <SUBJECT>Status of claims.</SUBJECT> <P>The following definitions are applicable to claims for pension, compensation, and dependency and indemnity compensation.</P> <P>(a) <E T="03">Informal claim.</E> See § 3.155.</P> <P>(b) <E T="03">Original claim.</E> An initial formal application on a form prescribed by the Secretary. (See §§ 3.151, 3.152).</P> <P>(c) <E T="03">Pending claim.</E> An application, formal or informal, which has not been finally adjudicated.</P> <P>(d) <E T="03">Finally adjudicated claim.</E> 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.)</P> <P>(e) <E T="03">Reopened claim.</E> 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. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(f) <E T="03">Claim for increase.</E> Any application for an increase in rate of a benefit being paid under a current award, or for resumption of payments previously discontinued.</P> <CITA>[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]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Evidence Requirements</HD> <SECTION> <SECTNO>§ 3.200</SECTNO> <SUBJECT>Testimony certified or under oath.</SUBJECT> <P>(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).)</P> <P>(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.</P> <CITA>[40 FR 36329, Aug. 20, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.201</SECTNO> <SUBJECT>Exchange of evidence; Social Security and Department of Veterans Affairs.</SUBJECT> <P>(a) A claimant for dependency and indemnity compensation may elect to furnish to the Department of Veterans Affairs in support of that claim copies of evidence which was previously furnished to the Social Security Administration or to have the Department of Veterans Affairs obtain such evidence from the Social Security Administration. For the purpose of determining the earliest effective date for payment of dependency and indemnity compensation, such evidence will be deemed to have been received by the Department of Veterans Affairs on the date it was received by the Social Security Administration.</P> <P>(b) A copy or certification of evidence filed in the Department of Veterans Affairs in support of a claim for <PRTPAGE P="198"/>dependency and indemnity compensation will be furnished the Social Security Administration upon request from the agency.</P> <SECAUTH>(Authority: 38 U.S.C. 501(a) and 5105)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Claims filed with Social Security. See § 3.153.</P> </CROSSREF> <CITA>[26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.202</SECTNO> <SUBJECT>Evidence from foreign countries.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, where an affidavit or other document is required to be executed under oath before an official in a foreign country, the signature of that official must be authenticated by a United States Consular Officer in that jurisdiction or by the State Department. Where the United States has no consular representative in a foreign country, such authentication may be made as follows:</P> <P>(1) By a consular agent of a friendly government whereupon the signature and seal of the official of the friendly government may be authenticated by the State Department; or</P> <P>(2) By the nearest American consul who will attach a certificate showing the result of the investigation concerning its authenticity.</P> <P>(b) Authentication will not be required: (1) On documents approved by the Deputy Minister of Veterans Affairs, Department of Veterans Affairs, Ottawa, Canada: or</P> <P>(2) When it is indicated that the attesting officer is authorized to administer oaths for general purposes and the document bears his or her signature and seal; or</P> <P>(3) When the document is executed before a Department of Veterans Affairs employee authorized to administer oaths; or</P> <P>(4) When a copy of a public or church record from any foreign country purports to establish birth, adoption, marriage, annulment, divorce, or death, provided it bears the signature and seal of the custodian of such record and there is no conflicting evidence in the file which would serve to create doubt as to the correctness of the record; or</P> <P>(5) When a copy of the public or church record from one of the countries comprising the United Kingdom, namely: England, Scotland, Wales, or Northern Ireland, purports to establish birth, marriage, or death, provided it bears the signature or seal or stamp of the custodian of such record and there is no evidence which would serve to create doubt as to the correctness of the records; or</P> <P>(6) When affidavits prepared in the Republic of the Philippines are certified by a Department of Veterans Affairs representative located in the Philippines having authority to administer oaths.</P> <P>(c) Photocopies of original documents meeting the requirements of this section will be accepted if they satisfy the requirements of § 3.204 of this part.</P> <SECAUTH>(Authority: 38 U.S.C. 501</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>State Department as agent of Department of Veterans Affairs. See § 3.108.</P> </CROSSREF> <CITA>[26 FR 1571, Feb. 24, 1961, as amended at 40 FR 36329, Aug. 20, 1975; 52 FR 19348, May 22, 1987; 59 FR 46338, Sept. 8, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.203</SECTNO> <SUBJECT>Service records as evidence of service and character of discharge.</SUBJECT> <P>(a) <E T="03">Evidence submitted by a claimant.</E> For the purpose of establishing entitlement to pension, 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:</P> <P>(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, <PRTPAGE P="199"/>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</P> <P>(2) The document contains needed information as to length, time and character of service; and</P> <P>(3) In the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate.</P> <P>(b) <E T="03">Additional requirements for pension claimants.</E> In addition to meeting the requirements of paragraph (a) of this section, a document submitted to establish a creditable period of wartime service for pension entitlement may be accepted without verification if the document (or other evidence of record) shows:</P> <P>(1) Service of 4 months or more; or</P> <P>(2) Discharge for disability incurred in line of duty; or</P> <P>(3) Ninety days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.</P> <P>(c) <E T="03">Verification from the service department.</E> When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements of paragraph (a) of this section (and paragraph (b) of this section in pension claims), the Department of Veterans Affairs shall request verification of service from the service department. However, payment of nonservice-connected burial benefits may be authorized, if otherwise in order, based upon evidence of service which VA relied upon to authorize payment of compensation or pension during the veteran's lifetime, provided that there is no evidence which would serve to create doubt as to the correctness of that service evidence. If it appears that a length of service requirement may not be met (e.g., the 90 days wartime service requirement to receive pension under 38 U.S.C. 1521(j)), the Department of Veterans Affairs shall request a complete statement of service to determine if there are any periods of active service that are required to be excluded under § 3.15.</P> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.204</SECTNO> <SUBJECT>Evidence of dependents and age.</SUBJECT> <P>(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).</P> <P>(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. </P> <PARAUTH>(Authority: 38 U.S.C. 5124)</PARAUTH> <P>(b) <E T="03">Marriage or birth.</E> 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.<PRTPAGE P="200"/> </P> <P>(c) <E T="03">Acceptability of photocopies.</E> 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.</P> <APPRO>(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0624.)</APPRO> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.205</SECTNO> <SUBJECT>Marriage.</SUBJECT> <P>(a) <E T="03">Proof of marriage.</E> Marriage is established by one of the following types of evidence:</P> <P>(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.</P> <P>(2) Official report from service department as to marriage which occurred while the veteran was in service.</P> <P>(3) The affidavit of the clergyman or magistrate who officiated.</P> <P>(4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied that it is genuine and free from alteration.</P> <P>(5) The affidavits or certified statements of two or more eyewitnesses to the ceremony.</P> <P>(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.</P> <P>(7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred.</P> <P>(b) <E T="03">Valid marriage.</E> 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.</P> <P>(c) <E T="03">Marriages deemed valid.</E> 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.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Marriages deemed valid. See § 3.52. Definitions; marriage. See § 3.1(j). Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[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]</CITA> </SECTION> <SECTION> <PRTPAGE P="201"/> <SECTNO>§ 3.206</SECTNO> <SUBJECT>Divorce.</SUBJECT> <P>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:</P> <P>(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;</P> <P>(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).</P> <P>(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.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.207</SECTNO> <SUBJECT>Void or annulled marriage.</SUBJECT> <P>Proof that a marriage was void or has been annulled should consist of:</P> <P>(a) <E T="03">Void.</E> 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.</P> <P>(b) <E T="03">Annulled.</E> 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.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Effective dates, void or annulled marriage. See § 3.400 (u) and (v). Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.208</SECTNO> <SUBJECT>Claims based on attained age.</SUBJECT> <P>In claims for pension where the age of the veteran or surviving spouse is material, the statements of age will be accepted where they are in agreement with other statements in the record as to age. However, where there is a variance in such records, the youngest age will be accepted subject to the submission of evidence as outlined in § 3.209.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.209</SECTNO> <SUBJECT>Birth.</SUBJECT> <P>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.</P> <P>(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.</P> <P>(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.<PRTPAGE P="202"/> </P> <P>(c) Official report from the service department as to birth which occurred while the veteran was in service.</P> <P>(d) Affidavit or a certified statement of the physician or midwife in attendance at birth.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <SECAUTH>(Authority: 38 U.S.C. 501)</SECAUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[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]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.210</SECTNO> <SUBJECT>Child's relationship.</SUBJECT> <P>(a) <E T="03">Legitimate child.</E> Where it is necessary to determine the legitimacy of a child, evidence will be required to establish the legality of the marriage of the mother of the child to the veteran or to show that the child is otherwise legitimate by State laws together with evidence of birth as outlined in § 3.209. Where the legitimacy of a child is not a factor, evidence to establish legitimacy will not be required: <E T="03">Provided,</E> That, evidence is on file which meets the requirements of paragraph (b) of this section sufficient to warrant recognition of the relationship of the child without regard to legitimacy.</P> <P>(b) <E T="03">Illegitimate child.</E> As to the mother of an illegitimate child, proof of birth is all that is required. As to the father, the sufficiency of evidence will be determined in accordance with the facts in the individual case. Proof of such relationship will consist of:</P> <P>(1) An acknowledgment in writing signed by him; or</P> <P>(2) Evidence that he has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes; or</P> <P>(3) Any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as:</P> <P>(i) A copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as parent of the child; or</P> <P>(ii) Statements of persons who know that the veteran accepted the child as his; or</P> <P>(iii) Information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child.</P> <P>(c) <E T="03">Adopted child.</E> Except as provided in paragraph (c)(1) of this section evidence of relationship will include a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary.</P> <P>(1) In jurisdictions where petition must be made to the court for release of adoption documents or information, or where release of such documents or information is prohibited, the following may be accepted to establish the fact of adoption:</P> <P>(i) As to a child adopted into the veteran's family, a copy of the child's revised birth certificate.</P> <P>(ii) As to a child adopted out of the veteran's family, a statement over the signature of the judge or the clerk of the court setting forth the child's former name and the date of adoption, or a certified statement by the veteran, the veteran's surviving spouse, <PRTPAGE P="203"/>apportionee, or their fiduciaries setting forth the child's former name, date of birth, and the date and fact of adoption together with evidence indicating that the child's original public record of birth has been removed from such records. Where application is made for an apportionment under § 3.458(d) on behalf of a child adopted out of the veteran's family, the evidence must be sufficient to establish the veteran as the natural parent of the child.</P> <P>(2) As to a child adopted by the veteran's surviving spouse after the veteran's death, the statement of the adoptive parent or custodian of the child will be accepted in absence of information to the contrary, to show that the child was a member of the veteran's household at the date of the veteran's death and that recurring contributions were not being received for the child's maintenance sufficient to provide for the major portion of the child's support, from any person other than the veteran or surviving spouse or from any public or private welfare organization which furnished services or assistance to children. (Pub. L. 86-195)</P> <P>(d) <E T="03">Stepchild.</E> Evidence of relationship of a stepchild will consist of proof of birth as outlined in § 3.209, evidence of the marriage of the veteran to the natural parent of the child, and evidence that the child is a member of the veteran's household or was a member of the veteran's household at the date of the veteran's death.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 28 FR 2959, Mar. 26, 1963; 38 FR 871, Jan. 5, 1973; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.211</SECTNO> <SUBJECT>Death.</SUBJECT> <P>Death should be established by one of the following types of evidence:</P> <P>(a)(1) A copy of the public record of the State or community where death occurred.</P> <P>(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.</P> <P>(b) Where death occurs in a hospital or institution under the control of the United States Government:</P> <P>(1) A death certificate signed by a medical officer; or</P> <P>(2) A clinical summary or other report showing fact and date of death signed by a medical officer.</P> <P>(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.</P> <P>(d) Where death occurs abroad:</P> <P>(1) A United States consular report of death bearing the signature and seal of the United States consul; or</P> <P>(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</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <CROSSREF> <PRTPAGE P="204"/> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.212</SECTNO> <SUBJECT>Unexplained absence for 7 years.</SUBJECT> <P>(a) If satisfactory evidence is produced establishing the fact of the continued and unexplained absence of any individual from his or her home and family for a period of 7 years or more and that a diligent search disclosed no evidence of his or her existence after the date of disappearance, and if evidence as provided in § 3.211 cannot be furnished, the death of such individual as of the expiration of such period may be considered as sufficiently proved.</P> <P>(b) No State law providing for presumption of death will be applicable to claims for benefits under laws administered by the Department of Veterans Affairs and the finding of death will be final and conclusive except where suit is filed for insurance under 38 U.S.C. 1984. </P> <PARAUTH>(Authority: 38 U.S.C. 108)</PARAUTH> <P>(c) In the absence of evidence to the contrary, a finding of death made by another Federal agency will be accepted if the finding meets the requirements of paragraph (a) of this section.</P> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.213</SECTNO> <SUBJECT>Change of status affecting entitlement.</SUBJECT> <P>(a) <E T="03">General.</E> For the purpose of establishing entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of § 3.204. For the purpose of reducing or discontinuing such benefits, a statement by a claimant or payee setting forth the month and year of change of status which would result in a reduction or discontinuance of benefits to that person will be accepted, in the absence of contradictory information. This includes:</P> <P>(1) <E T="03">Veteran.</E> A statement by the veteran setting forth the month and year of death of a spouse, child, or dependent parent.</P> <P>(2) <E T="03">Surviving spouse.</E> A statement by the surviving spouse or remarried surviving spouse setting forth the month and year of remarriage and any change of name. (An award for a child or children who are otherwise entitled may be made to commence the day following the date of discontinuance of any payments to the surviving spouse.)</P> <P>(3) <E T="03">Child.</E> A statement by the veteran or surviving spouse (where an additional allowance is being paid to the veteran or surviving spouse for a child), or fiduciary, setting forth the month and year of the child's death, marriage, or discontinuance of school attendance. A similar statement by a child who is receiving payments direct will be accepted to establish the child's marriage or the discontinuance of school attendance. Where appropriate, the month and year of discontinuance of school attendance will be required in addition to the month and year of death or marriage of a child. </P> <PARAUTH>(Authority: 38 U.S.C. 501)</PARAUTH> <P>(4) <E T="03">Parent.</E> A statement by a parent setting forth the month and year:</P> <P>(i) Of marriage or remarriage;</P> <P>(ii) When two parents or a parent and spouse ceased living together;</P> <P>(iii) When two parents or a parent and spouse resumed living together following a period of separation;</P> <P>(iv) Of divorce or death of a spouse.</P> <P>(b) <E T="03">Date not reported.</E> If the month and year of the event is not reported, the award will be reduced or discontinued, whichever is appropriate, effective date of last payment. The payee will be requested to furnish within 60 days from the date of request a statement setting forth the date of the event. Where payments are continued at a reduced rate, the award will be discontinued effective date of last payment if the required statement is not received within the 60-day period. Payments on a discontinued award may be resumed, if otherwise in order, from the date of discontinuance if the necessary information is received within 1 <PRTPAGE P="205"/>year from the date of request; otherwise from the date of receipt of a new claim.</P> <P>(c) <E T="03">Contradictory information.</E> Where there is reason to believe that the event reported may have occurred at an earlier date, formal proof will be required.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Abandoned claims. See § 3.158. Change in status of dependents. See § 3.651. Material change in income, net worth or change in status. See § 3.660. Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[26 FR 1574, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 27 FR 11888, Dec. 1, 1962; 52 FR 19349, May 22, 1987; 61 FR 56626, Nov. 4, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.214</SECTNO> <SUBJECT>Court decisions; unremarried surviving spouses.</SUBJECT> <P>Effective July 15, 1958, a decision rendered by a Federal court in an action to which the United States was a party holding that a surviving spouse of a veteran has not remarried will be followed in determining eligibility for pension, compensation or dependency and indemnity compensation.</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Abandoned claims. See § 3.158. Change in status of dependents. See § 3.651. Dependency, income and estate. See § 3.660. Evidence of dependents and age. See § 3.204.</P> </CROSSREF> <CITA>[31 FR 2782, Feb. 16, 1966, as amended at 52 FR 19349, May 22, 1987]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.215</SECTNO> <SUBJECT>Termination of marital relationship or conduct.</SUBJECT> <P>On or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon filing of an application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding himself or herself out openly to the public as that person's spouse or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact.</P> <CITA>[57 FR 10426, Mar. 26, 1992, as amended at 58 FR 32445, June 10, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.216</SECTNO> <SUBJECT>Mandatory disclosure of social security numbers.</SUBJECT> <P>Any person who applies for or receives any compensation or pension benefit as defined in §§ 3.3, 3.4, or 3.5 of this part, a monetary allowance under 38 U.S.C. chapter 18, shall, as a condition for receipt or continued receipt of benefits, furnish the Department of Veterans Affairs upon request with his or her social security number and the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received. However, no one shall be required to furnish a social security number for any person to whom none has been assigned. Benefits will be terminated if a beneficiary fails to furnish the Department of Veterans Affairs with his or her social security number or the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received, within 60 days from the date the beneficiary is requested to furnish the social security number.</P> <SECAUTH>(Authority: 38 U.S.C. 1822, 5101(c))</SECAUTH> <APPRO>(Approved by the Office of Management and Budget under control number 2900-0522)</APPRO> <CITA>[57 FR 8268, Mar. 9, 1992, as amended at 57 FR 27935, June 23, 1992; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.217</SECTNO> <SUBJECT>Submission of statements or information affecting entitlement to benefits.</SUBJECT> <P>(a) For purposes of this part, unless specifically provided otherwise, the submission of information or a statement that affects entitlement to benefits by e-mail, facsimile, or other written electronic means, will satisfy a requirement or authorization that the statement or information be submitted in writing.</P> <NOTE> <HD SOURCE="HED">Note to paragraph</HD> <P>(a): Section 3.217(a) merely concerns the submission of information or a statement in writing. Other requirements specified in this part, such as a requirement to use a specific form, to provide specific information, to provide a signature, or to provide a certified statement, must still be met.</P> </NOTE> <P>(b) For purposes of this part, unless specifically provided otherwise, VA may take action affecting entitlement to benefits based on oral or written information or statements provided to <PRTPAGE P="206"/>VA by a beneficiary or his or her fiduciary. However, VA may not take action based on oral information or statements unless the VA employee receiving the information meets the following conditions:</P> <P>(1) During the conversation in which the information or statement is provided, the VA employee:</P> <P>(i) Identifies himself or herself as a VA employee who is authorized to receive the information or statement (these are VA employees authorized to take actions under §§ 2.3 or 3.100 of this chapter);</P> <P>(ii) Verifies the identity of the provider as either the beneficiary or his or her fiduciary by obtaining specific information about the beneficiary that can be verified from the beneficiary's VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information; and</P> <P>(iii) Informs the provider that the information or statement will be used for the purpose of calculating benefit amounts; and</P> <P>(2) During or following the conversation in which the information or statement is provided, the VA employee documents in the beneficiary's VA records the specific information or statement provided, the date such information or statement was provided, the identity of the provider, the steps taken to verify the identity of the provider as being either the beneficiary or his or her fiduciary, and that he or she informed the provider that the information would be used for the purpose of calculating benefit amounts.</P> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>38 U.S.C. 501, 1115, 1506, 5104.</P> </AUTH> <CITA>[66 FR 56614, Nov. 9, 2001]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Dependency, Income and Estate</HD> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Regulations Applicable to Programs in Effect Prior to January <E T="01">1, 1979</E> </HD> <SECTION> <SECTNO>§ 3.250</SECTNO> <SUBJECT>Dependency of parents; compensation.</SUBJECT> <P>(a) <E T="03">Income—</E>(1) <E T="03">Conclusive dependency.</E> Dependency of a parent (other than one who is residing in a foreign country) will be held to exist where the monthy income does not exceed:</P> <P>(i) $400 for a mother or father not living together;</P> <P>(ii) $660 for a mother and father, or remarried parent and spouse, living together:</P> <P>(iii) $185 for each additional “member of the family” as defined in paragraph (b)(2). </P> <PARAUTH>(Authority: 38 U.S.C. 102(a))</PARAUTH> <P>(2) <E T="03">Excess income.</E> Where the income exceeds the monthly amounts stated in paragraph (a)(1) of this section dependency will be determined on the facts in the individual case under the principles outlined in paragraph (b) of this section. In such cases, dependency will not be held to exist if it is reasonable that some part of the corpus of the claimant's estate be consumed for his or her maintenance.</P> <P>(3) <E T="03">Foreign residents.</E> There is no conclusive presumption of dependency. Dependency will be determined on the facts in the individual case under the principles outlined in this section.</P> <P>(b) <E T="03">Basic rule.</E> Dependency will be held to exist if the father or mother of the veteran does not have an income sufficient to provide reasonable maintenance for such father or mother and members of his or her family under legal age and for dependent adult members of the family if the dependency of such adult member results from mental or physical incapacity.</P> <P>(1) “Reasonable Maintenance” includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents’ reasonable mode of life.</P> <P>(2) “Member of the family” means a person (other than spouse) including a relative in the ascending as well as descending class, whom the father or mother is under moral or legal obligation to support. In determining whether other members of the family under legal age are factors in necessary expenses of the mother or father, consideration will be given to any income from business or property (including trusts) actually available, directly or indirectly, to the mother or father for the support of the minor but not to the corpus of the estate or the income of the minor which is not so available.<PRTPAGE P="207"/> </P> <P>(c) <E T="03">Inception of dependency.</E> The fact that the veteran has made habitual contributions to the father or mother, or both, is not conclusive evidence that dependency existed but will be considered in connection with all other evidence. In death claims, it is not material whether dependency arose prior or subsequent to the veteran's death. (See § 3.1000(d)(3) as to accrued.) </P> <PARAUTH>(Authority: 38 U.S.C. 102(a))</PARAUTH> <P>(d) <E T="03">Remarriage.</E> Dependency will not be denied solely because of remarriage (38 U.S.C. 102(b)(1)). Compensation may be continued if the parent submits evidence to show that dependency exists, considering the combined income and expenses of the parent and spouse.</P> <CITA>[28 FR 29, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 49 FR 47004, Nov. 30, 1984; 61 FR 20727, May 8, 1996]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.251</SECTNO> <SUBJECT>Income of parents; dependency and indemnity compensation.</SUBJECT> <P>(a) <E T="03">Annual income limitations and rates.</E> (1) Dependency and indemnity compensation is not payable to a parent or parents whose annual income exceeds the limitations set forth in 38 U.S.C. 1315 (b), (c), or (d).</P> <P>(2) Where there is only one parent, and the parent has remarried and is living with his or her spouse, dependency and indemnity compensation will be paid under either the formula in 38 U.S.C. 1315(b)(1) or the formula in 38 U.S.C. 1315(d), whichever will provide the greater monthly rate of dependency and indemnity compensation. The total combined annual income of the parent and spouse will be counted. </P> <PARAUTH>(Authority: 38 U.S.C. 1315)</PARAUTH> <P>(3) Where the claim is based on service in the Commonwealth Army of the Philippines, or as a guerrilla or as a Philippine Scout under section 14, Pub. L. 190, 79th Congress, the income limitation will be at a rate of $0.50 for each dollar. See § 3.100(b). </P> <PARAUTH>(Authority: 38 U.S.C. 107)</PARAUTH> <P>(4) If the remarriage of a parent has been terminated, or the parent is separated from his or her spouse, the rate of dependency and indemnity compensation for the parent will be that which would be payable if there were one parent alone or two parents not living together, whichever is applicable.</P> <P>(5) Where there are two parents living and only one parent has filed claim, the rate of dependency and indemnity compensation will be that which would be payable if both parents had filed claim.</P> <P>(b) <E T="03">Basic rule.</E> Payments of any kind or from any source will be counted as income unless specifically excluded. Income will be counted for the calendar year in which it is received and total income for the full calendar year will be considered except as provided in § 3.260.</P> <CITA>[28 FR 29, Jan. 1, 1963, as amended at 31 FR 14455, Nov. 10, 1966; 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 60 FR 18355, Apr. 11, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.252</SECTNO> <SUBJECT>Annual income; pension; Mexican border period and later war periods.</SUBJECT> <P>(a) <E T="03">Annual income limitations; old-law pension.</E> Where the right to old-law pension is payable under section 306(b) of Pub. L. 95-588 (92 Stat. 2497), pension is not payable if the pensioner's annual income exceeds the income limitations prescribed by § 3.26(c).</P> <P>(b) <E T="03">Annual income and net worth limitations; Pub. L. 86-211.</E> Pension is not payable to a veteran, surviving spouse or child whose annual income exceeds the limitations set forth in 38 U.S.C. 1521, 1541 or 1542; or to a veteran, surviving spouse or child if it is reasonable that some part of the claimant's estate be consumed for his or her maintenance. Where a veteran and spouse are living together, the separate income of the spouse will be considered as the veteran's income as provided in § 3.262(b). </P> <PARAUTH>(Authority: 38 U.S.C. 1543)</PARAUTH> <P>(c) <E T="03">Basic rule.</E> Payments of any kind or from any source will be counted as income unless specifically excluded. Income will be counted for the calendar year in which it is received and total income for the full calendar year will be considered except as provided in § 3.260.</P> <P>(d) <E T="03">Veteran with a spouse.</E> For the purpose of determining eligibility under <PRTPAGE P="208"/>paragraph (b) of this section the pension rates provided by 38 U.S.C. 1521(c) may be authorized for a married veteran if he or she is living with or, if estranged, is reasonably contributing to the support of his or her spouse. The determination of “reasonable” contribution will be based on all the circumstances in the case, considering the income and estate of the veteran and the separate income and estate of the spouse. Apportionment of the veteran's pension under § 3.451 meets the requirement of reasonable contribution.</P> <P>(e) <E T="03">Surviving spouse with a child</E>—(1) <E T="03">Child.</E> The term “child” means a child as defined in § 3.57. Where a veteran's child is born after the veteran dies, the surviving spouse will not be considered a surviving spouse with a child prior to the child's date of birth.</P> <P>(2) <E T="03">Veteran's child not in surviving spouse's custody.</E> Where the veteran was survived by a surviving spouse and by a child, the income increments for a surviving spouse and child apply even though the child is not the child of the surviving spouse and not in his or her custody.</P> <P>(3) <E T="03">Income of child.</E> The separate income received by a child or children, regardless of custody, will not be considered in computing the surviving spouse's income. Where the separate income of the child is turned over to the surviving spouse, only so much of the money as is left after deducting any expenses for maintenance of the child will be considered the surviving spouse's income.</P> <P>(4) <E T="03">Alternative rate.</E> Whenever the monthly pension rate payable to the surviving spouse under the formula in 38 U.S.C. 1541(c) is less than the rate payable for one child under section 1542 if the surviving spouse were not entitled, the surviving spouse will be paid the child's rate.</P> <P>(f) <E T="03">Income over maximum; reduced aid and attendance allowance.</E> Beginning January 1, 1977, veterans in need of regular aid and attendance who are not receiving pension because their income exceeds the applicable statutory limitation may be eligible for a reduced aid and attendance allowance. The amount payable is the regular aid and attendance allowance authorized by 38 U.S.C. 1521(d)(1) reduced by 16.6 percent for each $100, or portion thereof, by which the veteran's annual income exceeds the applicable maximum income limitation. The reduced aid and attendance allowance is payable when:</P> <P>(1) A veteran in need of regular aid and attendance is denied pension under 38 U.S.C. 1521 solely because the veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) and (c)(3); or</P> <P>(2) Pension payable under 38 U.S.C. 1521 to a veteran in need of regular aid and attendance is discontinued solely because the veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) or (c)(3); and</P> <P>(3) The veteran's annual income exceeds the applicable maximum income limitation in 38 U.S.C. 1521 (b)(3) or (c)(3) by an amount not greater than the amount specified in 38 U.S.C. 1521 (d)(2).</P> <CROSSREF> <HD SOURCE="HED">Cross References:</HD> <P>Basic pension determinations. See § 3.314. Determination of permanent need for regular aid and attendance and “permanently bedridden”. See § 3.352.</P> </CROSSREF> <CITA>[28 FR 30, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 41 FR 56803, Dec. 30, 1976; 44 FR 45935, Aug. 6, 1979; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 3.253-3.255</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.256</SECTNO> <SUBJECT>Eligibility reporting requirements.</SUBJECT> <P>(a) <E T="03">Obligation to report changes in factors affecting entitlement.</E> Any individual who has applied for or receives pension or parents’ dependency and indemnity compensation must promptly notify the Secretary of any change affecting entitlement in any of the following:</P> <P>(1) Income;</P> <P>(2) Net worth or corpus of estate;</P> <P>(3) Marital status;</P> <P>(4) Nursing home patient status;</P> <P>(5) School enrollment status of a child 18 years of age or older; or</P> <P>(6) Any other factor that affects entitlement to benefits under the provisions of this part.</P> <P>(b) <E T="03">Eligibility verification reports.</E> (1) For purposes of this section the term eligibility verification report means a form prescribed by the Secretary that is used to request income, net worth (if <PRTPAGE P="209"/>applicable), dependency status, and any other information necessary to determine or verify entitlement to pension or parents’ dependency and indemnity compensation.</P> <P>(2) VA will not require old law or section 306 pensioners to submit eligibility verification reports unless the Secretary determines that doing so is necessary to preserve program integrity.</P> <P>(3) The Secretary shall require an eligibility verification report from individuals receiving parents’ dependency and indemnity compensation under the following circumstances:</P> <P>(i) If the Social Security Administration has not verified the beneficiary's Social Security number and, if the beneficiary is married, his or her spouse's Social Security number.</P> <P>(ii) If there is reason to believe that the beneficiary or, if the spouse's income could affect entitlement, his or her spouse may have received income other than Social Security during the current or previous calendar year; or</P> <P>(iii) If the Secretary determines that an eligibility verification report is necessary to preserve program integrity.</P> <P>(4) An individual who applies for or receives pension or parents’ dependency and indemnity compensation as defined in §§ 3.3 or 3.5 of this part shall, as a condition of receipt or continued receipt of benefits, furnish the Department of Veterans Affairs an eligibility verification report upon request.</P> <P>(c) If VA requests that a claimant or beneficiary submit an eligibility verification report but he or she fails to do so within 60 days of the date of the VA request, the Secretary shall suspend the award or disallow the claim.</P> <APPRO>(The Office of Management and Budget has approved the information collection requirements in this section under control numbers 2900-0101 and 2900-0624.)</APPRO> <SECAUTH>(Authority: Sec. 306(a)(2) and (b)(3), Pub. L. 95-588, 92 Stat. 2508-2509; 38 U.S.C. 1315(e))</SECAUTH> <CITA>[63 FR 53595, Oct. 6, 1998, as amended at 66 FR 56614, Nov. 9, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.257</SECTNO> <SUBJECT>Children; no surviving spouse entitled.</SUBJECT> <P>Where pension is not payable to a surviving spouse because his or her annual income exceeds the statutory limitation or because of his or her net worth, payments will be made to or for the child or children as if there were no surviving spouse.</P> <CITA>[62 FR 5529, Feb. 6, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§§ 3.258-3.259</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 3.260</SECTNO> <SUBJECT>Computation of income.</SUBJECT> <P>For entitlement to pension or dependency and indemnity compensation, income will be counted for the calendar year in which it is received.</P> <P>(a) <E T="03">Installments.</E> Income will be determined by the total amount received or anticipated during the calendar year.</P> <P>(b) <E T="03">Deferred determinations.</E> Where there is doubt as to the amount of the anticipated income, pension or dependency and indemnity compensation will be allowed at the lowest appropriate rate or will be withheld, as may be in order, until the end of the calendar year when the total income received during the year may be determined.</P> <P>(c) <E T="03">Proportionate income limitations; excess income.</E> A proportionate income limitation will be established under the conditions set forth in paragraph (d) of this section except where application of a proportionate income limitation would result in payment of a lower rate than would be payable on the basis of income for the full calendar year.</P> <P>(d) <E T="03">Proportionate income limitations; computation.</E> Income limitations will be computed proportionately for the purpose of determining initial entitlement, or for resuming payments on an award which was discontinued for a reason other than excess income or a change in marital or dependency status. A proportionate income limitation will be established for the period from the date of entitlement to the end of that calendar year. The total amount of income received by the claimant during that period will govern the payment of benefits. Income received prior to the date of entitlement will be disregarded.</P> <P>(e) <E T="03">Proportionate income limitations; spouse.</E> In determining whether proportionate computation is applicable to a claim under Pub. L. 86-211 (73 Stat. 432), the total income for the calendar year of entitlement of both veteran and that of the spouse available for use of <PRTPAGE P="210"/>the veteran will be considered. If a proportionate income limitation is then applicable, it will be applied to both the veteran's and the spouse's income. The spouse's income will not be included, however, where his or her total income for the calendar year does not exceed $1,200.</P> <P>(f) <E T="03">Rate changes.</E> In years after that for which entitlement to pension or dependency and indemnity compensation has been established or reestablished as provided in paragraph (d) of this section, total income for the calendar year will govern the payment of benefits. Where there is a change in the conditions of entitlement because of a change in marital or dependency status, entitlement for each period will be determined separately. For the period when the claimant was married or had a dependent, the rate payable will be determined under the annual income limitation or increment applicable to a claimant who is married or has a dependent. For the period when the claimant was unmarried or without a dependent, the rate payable will be determined under the annual income limitation or increment applicable to a claimant who is not married or has no dependent. Since these determinations will be based on total income for the calendar year, it is not material whether such income was received before or after the change of status.</P> <P>(g) <E T="03">Fractions of dollars.</E> In computing a claimant's annual income a fraction of a dollar will be disregarded for the purpose of determining entitlement to monthly payments of pension and dependency and indemnity compensation.</P> <SECAUTH>(Authority: 38 U.S.C. 1315(g)(2); 1503(b))</SECAUTH> <CITA>[28 FR 30, Jan. 1, 1963, as amended at 29 FR 2944, Mar. 4, 1964; 37 FR 6677, Apr. 1, 1972; 40 FR 16066, Apr. 9, 1975]</CITA> </SECTION> <SECTION> <SECTNO>§ 3.261</SECTNO> <SUBJECT>Character of income; exclusions and estates.</SUBJECT> <P>The following factors will be considered in determining whether a claimant meets the requirements of §§ 3.250, 3.251 and 3.252 with reference to dependency, income limitations and corpus of estate:</P> <P>(a) <E T="03">Income.</E> </P> <GPOTABLE CDEF="s110,r35,r35,r35,r35,r35" COLS="6" OPTS="L2"> <BOXHD> <CHED H="1">Income</CHED> <CHED H="1">Dependency (parents)</CHED> <CHED H="1">Dependency and indemnity compensation (parents)</CHED> <CHED H="1">Pension; old-law (veterans, surviving spouses and c