[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2004 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          38


          Part 18 to End

                         Revised as of July 1, 2004


          Pensions, Bonuses, and Veterans' Relief
          
          


________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2004
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]






                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2004



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[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 38:
          Chapter I--Department of Veterans Affairs 
          (Continued)                                                3
  Finding Aids:
      Material Approved for Incorporation by Reference........     975
      Table of CFR Titles and Chapters........................     977
      Alphabetical List of Agencies Appearing in the CFR......     995
      List of CFR Sections Affected...........................    1005

[[Page iv]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  38 CFR 18.1 refers 
                       to title 38, part 18, 
                       section 1.

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

[[Page v]]



                               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, 2004), 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.

[[Page vi]]

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.

[[Page vii]]


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 
fedreg.info@nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
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    The Office of the Federal Register also offers a free service on the 
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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, 2004.

[[Page ix]]



                               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, 2004.

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Frances D. 
McDonald, assisted by Alomha S. Morris.

[[Page x]]




[[Page 1]]



            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF




                   (This book contains part 18 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Department of Veterans Affairs (Continued).......          18

[[Page 3]]



          CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)




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


  Editorial Note: Nomenclature changes affecting chapter I appear at 64 
FR 30244, June 7, 1999; 65 FR 1545, Jan. 11, 2000; 66 FR 44053, Aug. 22, 
2001; 66 FR 66767, Dec. 27, 2001; 67 FR 16023, Apr. 4, 2002; and 69 FR 
18803, Apr. 9, 2004.
Part                                                                Page
18              Nondiscrimination in federally-assisted 
                    programs of the Department of Veterans 
                    Affairs--effectuation of Title VI of the 
                    Civil Rights Act of 1964................           5
18a             Delegation of responsibility in connection 
                    with Title VI, Civil Rights Act of 1964.          48
18b             Practice and procedure under Title VI of the 
                    Civil Rights Act of 1964 and Part 18 of 
                    this chapter............................          51
19              Board of Veterans' Appeals: Appeals 
                    regulations.............................          62
20              Board of Veterans' Appeals: Rules of 
                    Practice................................          71
21              Vocational rehabilitation and education.....         112
23              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving federal financial assistance..         521
25              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         537
26              Environmental effects of the Department of 
                    Veterans Affairs (VA) actions...........         537
36              Loan guaranty...............................         542
39              Aid to states for establishment, expansion, 
                    and improvement of veterans cemeteries..         716
40              Intergovernmental review of Department of 
                    Veterans Affairs programs and activities         741
41              Auditing requirements.......................         745
42              Standards implementing the Program Fraud 
                    Civil Remedies Act......................         752
43              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         768
44              Governmentwide debarment and suspension 
                    (nonprocurement)........................         795
45              New restrictions on lobbying................         818

[[Page 4]]

46              Policy regarding participation in National 
                    Practitioner Data Bank..................         830
47              Policy regarding reporting health care 
                    professionals to State Licensing Boards.         834
48              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         835
51              Per diem for nursing home care of veterans 
                    in State homes..........................         841
52              Per diem for adult day health care of 
                    veterans in State homes.................         865
58              Forms.......................................         888
59              Grants to states for construction or 
                    acquisition of state homes..............         904
60              Fisher houses and other temporary lodging...         949
61              VA homeless providers grant and per diem 
                    program.................................         951

[[Page 5]]



PART 18_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT 

OF VETERANS AFFAIRS_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 
1964--Table of Contents




                            Subpart A_General

Sec.
18.1 Purpose.
18.2 Application of this part.
18.3 Discrimination prohibited.
18.4 Assurances required.
18.6 Compliance information.
18.7 Conduct of investigations.
18.8 Procedure for effecting compliance.
18.9 Hearings.
18.10 Decisions and notices.
18.11 Judicial review.
18.12 Effect on other regulations, forms and instructions.
18.13 Definitions.

Appendix A to Subpart A--Statutory Provisions to Which This Subpart 
          Applies
Appendix B to Subpart A--Illustrative Applications

Subparts B-C [Reserved]

          Subpart D_Nondiscrimination on the Basis of Handicap

                           General Provisions

18.401 Purpose.
18.402 Application.
18.403 Definitions.
18.404 Discrimination prohibited.
18.405 Assurances required.
18.406 Remedial action, voluntary action and self-evaluation.
18.407 Designation of responsible employee and adoption of grievance 
          procedures.
18.408 Notice.
18.409 Administrative requirements for certain recipients.
18.410 Effect of State or local law or other requirements and effect of 
          employment opportunities.

                          Employment Practices

18.411 Discrimination prohibited.
18.412 Reasonable accommodation.
18.413 Employment criteria.
18.414 Preemployment inquiries.

                              Accessibility

18.421 Discrimination prohibited.
18.422 Existing facilities.
18.423 New construction.

               Elementary, Secondary, and Adult Education

18.431 Application.
18.432 Location and notification.
18.433 Free appropriate public education.
18.434 Education setting.
18.435 Evaluation and placement.
18.436 Procedural safeguards.
18.437 Nonacademic services.
18.438 Adult education.
18.439 Private education.

                         Postsecondary Education

18.441 Application.
18.442 Admissions and recruitment.
18.443 General treatment of students.
18.444 Academic adjustments.
18.445 Housing.
18.446 Financial and employment assistance to students.
18.447 Nonacademic services.

                       Health and Social Services

18.451 Application.
18.452 Health and other social services.
18.453 Drug and alcohol addicts.
18.454 Education of institutionalized persons.

                               Procedures

18.461 Procedures.

Appendix A to Subpart D--Statutory Provisions to Which This Part Applies

             Subpart E_Nondiscrimination on the Basis of Age

                                 General

18.501 Purpose.
18.502 Application.
18.503 Definitions.

              Standards for Determining Age Discrimination

18.511 Rules against age discrimination.
18.512 Definitions of ``normal operation'' and ``statutory objective.''
18.513 Exceptions to the rules against age discrimination; normal 
          operation or statutory objective of any program or activity.
18.514 Exceptions to the rules against age discrimination; reasonable 
          factors other than age.
18.515 Burden of proof.
18.516 Affirmative action by recipients.

      Responsibilities of Department of Veterans Affairs Recipients

18.531 General responsibilities.
18.532 Notice of subrecipients.
18.533 Assurance of compliance and recipient assessment of age 
          distinctions.
18.534 Information requirements.

         Investigation, Conciliation, and Enforcement Procedures

18.541 Compliance reviews.

[[Page 6]]

18.542 Complaints.
18.543 Mediation.
18.544 Investigation.
18.545 Prohibition against intimidation or retaliation.
18.546 Compliance procedure.
18.547 Hearings, decisions, post-termination proceedings.
18.548 Remedial action by recipient.
18.549 Alternate funds disbursal procedure.
18.550 Exhaustion of administrative remedies.

Appendix A to Subpart E--Statutory Provisions to Which This Subpart 
          Applies
Appendix B to Subpart E--List of Age Distinctions Contained in Statutes 
          and Regulations Governing Federal Financial Assistance of the 
          Department of Veterans Affairs



                            Subpart A_General

    Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws 
referred to in Appendix A.



Sec. 18.1  Purpose.

    The purpose of this part is to effectuate the provisions of Title VI 
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to 
the end that no person in the United States shall, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program or activity receiving Federal financial assistance 
from the Department of Veterans Affairs.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]



Sec. 18.2  Application of this part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department of 
Veterans Affairs, including the types of Federal financial assistance 
listed in appendix A to this subpart. It applies to money paid, property 
transferred, or other Federal financial assistance extended after the 
effective date of this part pursuant to an application approved prior to 
such effective date. This part does not apply to (a) any Federal 
financial assistance by way of insurance or guaranty contracts, (b) 
money paid, property transferred, or other assistance extended before 
the effective date of this part, (c) any assistance to any individual 
who is the ultimate beneficiary, or (d) any employment practice, under 
any such program, of any employer, employment agency, or labor 
organization, except to the extent described in Sec. 18.3. The fact 
that a type of Federal financial assistance is not listed in appendix A 
to this subpart shall not mean, if Title VI of the Act is otherwise 
applicable, that a program is not covered. Other types of Federal 
financial assistance under statutes now in force or hereinafter enacted 
may be added to appendix A to this subpart by notice published in the 
Federal Register.

[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980, as amended at 68 FR 51369, Aug. 26, 2003]



Sec. 18.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the ground of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements, on grounds of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to receipt of any service, financial aid, or other 
benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether is satisfied any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or

[[Page 7]]

other benefit provided under the program.
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford an opportunity 
to do so which is different from that afforded others under the program.
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program with respect to 
individuals of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this part applies on 
the grounds of race, color or national origin; or with the purpose or 
effect of defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (6)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (c) Medical emergencies. Notwithstanding the foregoing provisions of 
this section, a recipient of Federal financial assistance shall not be 
deemed to have failed to comply with paragraph (a) of this section if 
immediate provision of a service or other benefit to an individual is 
necessary to prevent his or her death or serious impairment of his or 
her health, and such service or other benefit cannot be provided except 
by or through a medical institution which refuses or fails to comply 
with paragraph (a) of this section.
    (d) Employment practices. (1) Whenever a primary objective of the 
Federal financial assistance to a program to which part 18 applies, is 
to provide employment, a recipient of such assistance may not (directly 
or through contractual or other arrangements) subject any individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, employment, layoff, or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation, and 
use of facilities). The requirements applicable to construction 
employment under any such program shall be those specified in or 
pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any 
Executive order which supersedes it.
    (2) In regard to Federal financial assistance which does not have 
providing employment as a primary objective, the provisions of paragraph 
(d)(1) of this section apply to the employment

[[Page 8]]

practices of the recipient if discrimination on the ground of race, 
color, or national origin in such employment practices tends, on the 
grounds of race, color, or national origin, to exclude persons from 
participation in, to deny them the benefits of or to subject them to 
discrimination under the program receiving Federal financial assistance. 
In any such case, the provisions of paragraph (d)(1) of this section 
shall apply to the extent necessary to assure equality of opportunity to 
and nondiscriminatory treatment of beneficiaries.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973; 42 
FR 60144, Nov. 25, 1977. Designated subpart A at 45 FR 63268, Sept. 24, 
1980, and further amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, 
Aug. 26, 2003]



Sec. 18.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every award of Federal 
financial assistance shall require the submission of such an assurance. 
In the case of an application for Federal financial assistance to 
provide real property or structures thereon, the assurance shall 
obligate the recipient, or, in the case of a subsequent transfer, the 
transferee, for the period during which the real property or structures 
are used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits. In the case of personal property the assurance 
shall obligate the recipient for the period during which the recipient 
retains ownership or possession of the property. In all other cases the 
assurance shall obligate the recipient for the period during which 
Federal financial assistance is extended pursuant to the application. 
The responsible agency official shall specify the form of the foregoing 
assurances and the extent to which like assurances will be required of 
subgrantees, contractors and subcontractors, transferees, successors in 
interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) Transfers of surplus property are subject to regulations issued 
by the Administrator of General Services (41 CFR subpart 101-6.2).
    (b) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in appendix A to this subpart) shall as a condition to 
its approval and the extension of any Federal financial assistance 
pursuant to the application (1) contain or be accompanied by a statement 
that the program is (or, in the case of a new program, will be) 
conducted in compliance with all requirements imposed by or pursuant to 
this part, and (2) provide or be accompanied by provision for such 
methods of administration for the program as are found by the 
responsible agency official to give reasonable assurance that the 
applicant and all recipients of Federal financial assistance under such 
program will comply with all requirements imposed by or pursuant to this 
part. In any case in which the recipient is claiming financial 
assistance pursuant to arrangements entered into prior to the effective 
date of this part, the assurances provided by this paragraph shall be 
included in the first application or claim for assistance on or after 
the effective date of this part.
    (c) Elementary and secondary schools. The requirements of paragraph 
(a) or (b) of this section with respect to any elementary or secondary 
school or school system shall be deemed to be satisfied if such school 
or school system (1) is subject to a final order of a court of the 
United States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school

[[Page 9]]

system which the responsible agency official determines is adequate to 
accomplish the purposes of the Act and this part, at the earliest 
practicable time, and provides reasonable assurance that it will carry 
out such plan; in any case of continuing Federal financial assistance 
the responsible agency official may reserve the right to redetermine, 
after such period as may be specified by the official, the adequacy of 
the plan to accomplish the purposes of the Act and this part. In any 
case in which a final order of a court of the United States for the 
desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.
    (d) Extent of application to institution or facility. In the case 
where any assurances are required from an academic, a medical care, or 
any other institution or facility, insofar as the assurances relate to 
the institution's practices with respect to the admission, care, or 
other treatment of persons by the institution or with respect to the 
opportunity of persons to participate in the receiving or providing of 
services, treatment, or benefits, such assurances shall be applicable to 
the entire institution or facility.

[38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980, and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 
26, 2003]



Sec. 18.6  Compliance information.

    (a) Cooperation and assistance. Each responsible agency official 
shall to the fullest extent practicable seek the cooperation of 
recipients in obtaining compliance with this part and shall provide 
assistance and guidance to recipients to help them comply voluntarily 
with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official or designee, timely, complete 
and accurate compliance reports at such times, and in such form and 
containing such information, as the responsible agency official or 
designee may determine to be necessary to enable the official to 
ascertain whether the recipient has complied or is complying with this 
part. In the case in which a primary recipient extends Federal financial 
assistance to any other recipient, such other recipient shall also 
submit such compliance reports to the primary recipient as may be 
necessary to enable the primary recipient to carry out its obligations 
under this part. In general, recipients should have available for the 
agency racial and ethnic data showing the extent to which members of 
minority groups are beneficiaries of federally assisted programs.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official or designee during normal 
business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this part. Where any information required of a 
recipient is in the exclusive possession of any other agency, 
institution or person and this agency, institution or person shall fail 
or refuse to furnish this information, the recipient shall so certify in 
its report and shall set forth what efforts it has made to obtain the 
information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner, as the responsible agency official 
finds necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 
10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]



Sec. 18.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official or 
designee shall from time to time review the practices of recipients to 
determine whether they are complying with this part.
    (b) Complaints. Any person or any specific class of individuals who 
believe

[[Page 10]]

they have been subjected to discrimination prohibited by this part may 
themselves, or by a representative, file with the responsible agency 
official or designee a written complaint. A complaint must be filed not 
later than 180 days from the date of the alleged discrimination unless 
the time for filing is extended by the responsible agency offical or 
designee.
    (c) Investigations. The responsible agency official or designee will 
initiate a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this part. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this part occurred, and other factors relevant to a determination as to 
whether the recipient has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the responsible agency official or designee will so inform the 
recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in Sec. 18.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible agency official or 
designee will so inform the recipient and the complainant, if any, in 
writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because the 
individual has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this part. 
The identity of complainants shall be kept confidential except to the 
extent necessary to carry out the purposes of this part, including the 
conduct of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980 and amended at 51 FR 10384, Mar. 26, 1986]



Sec. 18.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 18.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 18.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department of 
Veterans Affairs shall not be required to provide assistance in such a 
case during the pendency of the administrative proceedings under such 
paragraph except that the Department of Veterans Affairs shall continue 
assistance during the pendency of such proceedings where such assistance 
is due and payable pursuant to an application therefor approved prior to 
the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the responsible agency official has advised the applicant or 
recipient of failure to comply and has determined that compliance cannot 
be secured by voluntary means, (2) there

[[Page 11]]

has been an express finding on the record, after opportunity for 
hearing, of a failure by the applicant or recipient to comply with a 
requirement imposed by or pursuant to this part, (3) the action has been 
approved by the Secretary pursuant to Sec. 18.10(e), and (4) the 
expiration of 30 days after the Secretary has filed with the committee 
of the House and the committee of the Senate having legislative 
jurisdiction over the program involved, a full written report of the 
circumstances and the grounds for such action. Any action to suspend or 
terminate or to refuse to grant or to continue Federal financial 
assistance shall be limited to the particular political entity, or part 
thereof, or other applicant or recipient as to whom such a finding has 
been made and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance 
with Title VI of the Act by any other means authorized by law shall be 
taken by the Department of Veterans Affairs until (1) the responsible 
agency official has determined that compliance cannot be secured by 
voluntary means, (2) the recipient or other person has been notified of 
its failure to comply and of the action to be taken to effect 
compliance, and (3) the expiration of at least 10 days from the mailing 
of such notice to the recipient or other person. During this period of 
at least 10 days, additional efforts shall be made to persuade the 
recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10384, Mar. 26, 1986]



Sec. 18.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 18.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
agency official that the matter be scheduled for hearing or (2) advise 
the applicant or recipient that the matter in question has been set down 
for hearing at a stated place and time. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec. 18.8(c) of this part and consent to the making of a decision on 
the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Department of Veterans Affairs in Washington, D.C., at a time 
fixed by the responsible agency official unless the official determines 
that the convenience of the applicant or recipient or of the Department 
of Veterans Affairs requires that another place be selected. Hearings 
shall be held before the responsible agency official or, at the 
official's discretion, before an administrative law judge appointed in 
accordance with section 3105 of Title 5, U.S.C., or detailed under 
section 3344 of Title 5, U.S.C.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department of Veterans Affairs shall have 
the right to be represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing decision and 
any administrative review thereof shall be conducted in conformity with 
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the 
Administrative Procedure Act) and in accordance with such rules of 
procedure as are proper (and not inconsistent with this section) 
relating to the conduct of the hearing, giving of notices subsequent to 
those

[[Page 12]]

provided for in paragraph (a) of this section, taking of testimony, 
exhibits, arguments and briefs, requests for findings, and other related 
matters. Both the Department of Veterans Affairs and the applicant or 
recipient shall be entitled to introduce all relevant evidence on the 
issues as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes; authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other Federal departments or agencies issued under Title 
VI of the Act, the Secretary may, by agreement with such other 
departments or agencies where applicable, provide for the conduct of 
consolidated or joint hearings, and for the application to such hearings 
of rules of procedures not inconsistent with this part. Final decisions 
in such cases, insofar as this part is concerned, shall be made in 
accordance with Sec. 18.10.

[29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 
10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]



Sec. 18.10  Decisions and notices.

    (a) Procedure on decisions by an administrative law judge. If the 
hearing is held by an administrative law judge such administrative law 
judge shall either make an initial decision, if so authorized, or 
certify the entire record including recommended findings and proposed 
decision to the responsible agency official for a final decision, and a 
copy of such initial decision or certification shall be mailed to the 
applicant or recipient. Where the initial decision is made by the 
administrative law judge the applicant or recipient may within 30 days 
of the mailing of such notice of initial decision file with the 
responsible agency official exceptions to the initial decision with 
reasons therefor. In the absence of exceptions, the responsible agency 
official may within 45 days after the initial decision serve on the 
applicant or recipient a notice that the decision will be reviewed. Upon 
the filing of such exceptions or of such notice of review the 
responsible agency official shall review the initial decision and issue 
a decision thereon including the reasons therefor. In the absence of 
either exceptions or a notice of review the initial decision shall 
constitute the final decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a record is certified to the responsible agency 
official for decision or the official reviews the decision of an 
administrative law judge pursuant to paragraph (a) of this section, or 
whenever the responsible agency official conducts the hearing, the 
applicant or recipient shall be given reasonable opportunity to file 
with the official briefs or other written statements of its contentions, 
and a written copy of the final decision of the responsible agency 
official shall be sent to the applicant or recipient and to the 
complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived

[[Page 13]]

pursuant to Sec. 18.9(a) a decision shall be made by the responsible 
agency official on the record and a written copy of such decision shall 
be sent to the applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of an administrative law judge 
or responsible agency official shall set forth a ruling on each finding, 
conclusion, or exception presented, and shall identify the requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by Secretary. Any final decision by an administrative 
law judge which provides for the suspension or termination of, or the 
refusal to grant or continue Federal financial assistance, or the 
imposition of any other sanction available under this part of the Act, 
shall promptly be transmitted to the Secretary personally, who may 
approve such decision, may vacate it, or remit or mitigate any sanction 
imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible agency 
official that it will fully comply with this part.
    (g) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this section and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible agency official to restore fully its eligibility 
to receive Federal financial assistance. Any such request shall be 
supported by information showing that the applicant or recipient has met 
the requirements of paragraph (g)(1) of this section. If the responsible 
agency official determines that those requirements have been satisfied, 
the official shall restore such eligibility.
    (3) If the responsible agency official denies any such request, the 
applicant or recipient may submit a request for a hearing in writing, 
specifying why it believes such official to have been in error. It shall 
thereupon be given an expeditious hearing, with a decision on the 
record, in accordance with rules of procedure issued by the responsible 
agency official. The applicant or recipient will be restored to such 
eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (g)(1) of this section. While proceedings 
under this paragraph are pending, the sanctions imposed by the order 
issued under paragraph (f) of this section shall remain in effect.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]



Sec. 18.11  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.

[29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]



Sec. 18.12  Effect on other regulations, forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions issued before the effective date of this part by any officer 
of the Department of Veterans Affairs which impose requirements designed 
to prohibit any discrimination against individuals on the grounds of 
race, color or national origin under any program to which this part 
applies, and which authorize the

[[Page 14]]

suspension or termination of or refusal to grant or to continue Federal 
financial assistance to any applicant for or recipient of such 
assistance for failure to comply with such requirements, are hereby 
superseded to the extent that such discrimination is prohibited by this 
part, except that nothing in this part shall be deemed to relieve any 
person of any obligation assumed or imposed under any such superseded 
regulation, order, instruction, or like direction prior to the effective 
date of this part. Nothing in this part, however, shall be deemed to 
supersede any of the following (including future amendments thereof):
    (1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114 
(3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and 
regulations issued thereunder, or
    (2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and 
regulations issued thereunder, or any other orders, regulations or 
instructions, insofar as such orders, regulations, or instructions 
prohibit discrimination on the grounds of race, color or national origin 
in any program or situation to which this part is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Forms and instructions. Each responsible agency officials shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to officials of the Department of Veterans Affairs or to 
officials of other departments or agencies of the Government with the 
consent of such departments or agencies, responsibilities in connection 
with the effectuation of the purposes of Title VI of the Act and this 
part (other than responsibility for final decision as provided in Sec. 
18.10) including the achievement of effective coordination and maximum 
uniformity within the Department of Veterans Affairs and within the 
executive branch of the Government in the application of Title VI and 
this part to similar programs and in similar situations. Any action 
taken, determination made, or requirement imposed by an official of 
another department or agency acting pursuant to an assignment of 
responsibility under this paragraph shall have the same effect as though 
such action has been taken by the responsible official of this Agency.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980; 68 FR 51369, Aug. 
26, 2003]



Sec. 18.13  Definitions.

    As used in this part:
    (a) The term agency means the Department of Veterans Affairs, and 
includes each of its operating agencies and other organization units.
    (b) The term Secretary means the Secretary of Veterans Affairs.
    (c) The term responsible agency official with respect to any program 
receiving Federal financial assistance means the Secretary or other 
official of the Department of Veterans Affairs or an official of another 
department or agency to the extent the Secretary has delegated authority 
to such official.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (e) The term Federal financial assistance includes (1) grants of 
Federal funds, (2) the grant or donation of Federal property and 
interests in property, (3) the detail of Federal personnel, (4) the sale 
and lease of, and the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (f)(1) through (4) of 
this section, any

[[Page 15]]

part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (f)(1), (2), or (3) of this section.
    (g) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in the United States, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assignee, or transferee thereof, but such term does not 
include any ultimate beneficiary.
    (i) The term applicant means a person who submits an application, 
request, or plan required to be approved by the Secretary, or by a 
recipient, as a condition to eligibility for Federal financial 
assistance, and application means such an application, request, or plan.

[29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. 
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51 
FR 10385, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003]

 Appendix A to Subpart A of Part 18--Statutory Provisions to Which This 
                             Subpart Applies

    1. Payments to State homes (38 U.S.C. 1741-1743).
    2. State home facilities for furnishing domiciliary, nursing home, 
and hospital care (38 U.S.C. 8131-8137).
    3. Space and office facilities for representatives of recognized 
national organizations (38 U.S.C. 5902(a)(2)).
    4. All-volunteer force educational assistance, vocational 
rehabilitation, post-Vietnam era veterans' educational assistance, 
survivors' and dependents' educational assistance, and administration of 
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36, 
respectively).
    5. Sharing of medical facilities, equipment, and information (38 
U.S.C. 8151-8157).
    6. Approval of educational institutions (38 U.S.C. 104).
    7. Space and office facilities for representatives of State 
employment services (38 U.S.C. 7725(1)).
    8. Medical care for survivors and dependents of certain veterans (38 
U.S.C. 1713).
    9. Transfers for nursing home care; adult day health care (38 U.S.C. 
1720).
    10. Treatment and rehabilitation for alcohol or drug dependence or 
abuse disabilities (38 U.S.C. 1720A).
    11. Aid to States for establishment, expansion, and improvement of 
veterans cemeteries (38 U.S.C. 2408).
    12. Assistance in establishing new medical schools; grants to 
affiliated medical schools; assistance to health manpower training 
institutions (38 U.S.C. Chapter 82).
    13. Department of Veterans Affairs health professional scholarship 
program (38 U.S.C. 7601-7655).
    14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-
452).

[51 FR 10385, Mar. 26, 1986]

[[Page 16]]

      Appendix B to Subpart A of Part 18--Illustrative Applications

    The following examples, without being exhaustive, will illustrate 
the application of the nondiscrimination provisions to certain grants of 
the Department of Veterans Affairs. (In all cases the discrimination 
prohibited is discrimination on the grounds of race, color, or national 
origin prohibited by title VI of the Act and this part, as a condition 
of the receipt of Federal financial assistance.)
    (a) In grants which support the provision of health or welfare 
services for veterans in State homes, discrimination in the selection or 
eligibility of individuals to receive the services, and segregation or 
other discriminatory practices in the manner of providing them, are 
prohibited. This prohibition extends to all facilities and services 
provided by the State as grantee under the program or by a political 
subdivision of the State. It extends also to services purchased or 
otherwise obtained by the grantee (or political subdivision) from 
hospitals, nursing homes, schools, and similar institutions for 
beneficiaries of the program, and to the facilities in which such 
services are provided, subject, however, to the provisions of Sec. 
18.3(c).
    (b) In grants to assist in the construction of facilities for the 
provision of health or welfare services assurances will be required that 
services will be provided without discrimination, to the same extent 
that discrimination would be prohibited as a condition of Federal 
operating grants for the support of such services. Thus, as a condition 
of grants for the construction of a State home for furnishing nursing 
home care, assurances will be required that there will be no 
discrimination in the admission or treatment of patients. In the case of 
such grants the assurance will apply to patients, to interns, residents, 
student nurses, and other trainees, and to the privilege of physicians, 
dentists, and other professionally qualified persons to practice in the 
nursing home, and will apply to the entire facility for which, or for a 
part of which, the grant is made, and to facilities operated in 
connection therewith.
    (c) Upon transfers of real or personal surplus property for health 
or educational uses, discrimination is prohibited to the same extent as 
in the case of grants for the construction of facilities or the 
provision of equipment for like purposes.
    (d) A recipient may not take action that is calculated to bring 
about indirectly what this part forbids it to accomplish directly. Thus 
a State, in selecting or approving projects or sites for the 
construction of a nursing home which will receive Federal financial 
assistance, may not base its selections or approvals on criteria which 
have the effect of defeating or of substantially impairing 
accomplishment of the objectives of the Federal assistance program with 
respect to individuals of a particular race, color, or national origin.

(38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34, 35 
and 36)

[38 FR 17968, July 5, 1973. Designated subpart A at 45 FR 63268, Sept. 
24, 1980]

Subparts B-C [Reserved]



          Subpart D_Nondiscrimination on the Basis of Handicap

    Authority: 29 U.S.C. 706, 794.

    Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted.

                           General Provisions



Sec. 18.401  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 18.402  Application.

    This part applies to each recipient of Federal financial assistance 
from the Department of Veterans Affairs and to each program or activity 
that receives such assistance.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.403  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for all Handicapped Children Act of 1975, Pub. L. 94-
142, 20 U.S.C. 1401 et seq.
    (d) Agency means the Department of Veterans Affairs.
    (e) Secretary means the Secretary of Veterans Affairs.

[[Page 17]]

    (f) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by an Agency official or by a 
recipient as a condition to eligibility for Federal financial 
assistance.
    (h) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the Agency provides or 
otherwise makes available assistance in the form of:
    (1) Funds, including funds extended to any entity for payment to or 
on behalf of students admitted to that entity, extended directly to 
those students for payment to that entity, or extended directly to those 
students contingent upon their participation in education or training of 
that entity;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including;
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (j) Handicapped person. (1) Handicapped person means any person who:
    (i) Has a physical or mental impairment which substantially limits 
one or more major life activities;
    (ii) Has a record of such an impairment; or
    (iii) Is regarded as having such an impairment.
    (2) As used in paragraph (j)(1) of this section, the phrase:
    (i) Physical or mental impairment means:
    (A) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological, musculoskeletal; special sense organs including speech 
organs; respiratory; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (B) Any mental or psychological discorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities.
    (C) The term physical or mental impairment includes, but is not 
limited to, such diseases and conditions as orthopedic, visual, speech 
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, 
multiple sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, drug addiction and alcoholism.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means:
    (A) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by a recipient as 
constituting such a limitation;
    (B) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment;
    (C) Has none of the impairments defined in paragraph (j)(2)(i) of 
this section, but is treated by a recipient as having such an 
impairment.
    (k) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the

[[Page 18]]

essential functions of the job in question;
    (2) With respect to public elementary, secondary, or adult 
educational services, a handicapped person:
    (i) Of an age during which nonhandicapped persons are provided such 
services;
    (ii) Of any age during which it is mandatory under State laws to 
provide such services to handicapped persons; or
    (iii) To whom a State is required to provide a free appropriate 
public education under section 612 of the Education of the Handicapped 
Act; and
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity; and
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j) of this section.
    (m) Program or activity means all of the operations of any entity 
described in paragraphs (m)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity that is established by two or more of the 
entities described in paragraph (m)(1), (2), or (3) of this section.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.404  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity which receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
an aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service that is 
equal to that afforded others;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits, or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person

[[Page 19]]

by providing significant assistance to an agency, organization, or 
person that discriminates on the basis of handicap in providing any aid, 
benefit, or service to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) Aids, benefits, and services, to be equally effective, are not 
required to produce the identical result or level of achievement for 
handicapped and nonhandicapped persons, but must give handicapped 
persons equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement, in the most 
integrated setting appropriate to the person's needs.
    (3) Despite the existence of separate or different aid, benefits, or 
services provided in accordance with this part, a recipient may not deny 
a qualified handicapped person the opportunity to participate in aid, 
benefits, or services that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration that:
    (i) Have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap,
    (ii) Have the purpose or effect of defeating or substantially 
impairing accomplishment of the objectives of the recipient's program or 
activity with respect to handicapped persons, or
    (iii) Perpetuate the discrimination of another recipient if both 
recipients are subject to common administrative control or are agencies 
of the same State.
    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections that:
    (i) Have the effect of excluding handicapped persons from, deny them 
the benefits of, or otherwise subject them to discrimination under any 
program or activity that receives Federal financial assistance, or
    (ii) Have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objective of the program or activity 
with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole of in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons or the exclusion of a specific class of 
handicapped persons from aid, benefits, or services limited by Federal 
statue or Executive order to a different class of handicapped persons is 
not prohibited by this part.
    (d) Special communication. Recipients shall take appropriate action 
to ensure that communications with their applicants, employees, and 
beneficiaries are available to persons with impaired vision and hearing.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.405  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this part applies shall submit an assurance on a form specified by 
the Secretary, that the program or activity will be operated in 
compliance with this part.
    (b) Duration of obligation. (1) When Federal financial assistance is 
extended in the form of real property or structures on the property, the 
assurance will obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used for the purpose for which Federal financial 
assistance is extended or for another purpose involving the provisions 
of similar services or benefits.
    (2) Where Federal financial assistance is extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.

[[Page 20]]

    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (c) Extent of application to institution or facility. An assurance 
shall apply to the entire institution or facility.
    (d) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the Agency, 
the instrument effecting or recording this transfer shall contain a 
covenant running with the land to assure nondiscrimination for the 
period during which the real property is used for a purpose for which 
the Federal financial assistance is extended or for another purpose 
involving the provisions of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (b)(2) of 
this section in the instrument effecting or recording any subsequent 
transfer of property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Agency, the covenant 
shall also include a condition coupled with a right to be reserved by 
the Agency to revert title to the property if there is a breach of the 
covenant. If a transferree of real property proposes to mortgage or 
otherwise encumber the real property as security for financing 
construction of new, or improvement of existing, facilities on the 
property for the purpose for which the property was transferred, the 
Secretary may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as considered 
appropriate, agree to forbear the exercise of the right to revert title 
for as long as the lien of the mortgage or other encumbrance remains 
effective.
    (e) Other methods of enforcement. (1) Recipients are required to 
keep such records as the responsible VA official deems necessary for 
complete and accurate compliance reports. VA can specify intervals for 
reporting and prescribe the form and content of information required to 
ascertain whether the recipient has complied or is complying with the 
law.
    (2) Periodic compliance reviews of training establishments will be 
conducted by VA compliance officers. During these reviews recipients are 
required to permit access by VA compliance officers during normal 
business hours to such of their books, records, accounts, facilities and 
other sources of information including interviews with personnel and 
trainees as may be pertinent to ascertain compliance with the law.
    (3) From study of documentation, results of interviews, and 
observation of activities during tours of facilities, compliance 
officers will evaluate recipients' compliance status.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
68 FR 51370, Aug. 26, 2003]



Sec. 18.406  Remedial action, voluntary action and self-evaluation.

    (a) Remedial action. (1) If the Secretary finds that a recipient has 
discriminated against qualified persons on the basis of handicap in 
violation of section 504 or this part, the recipient shall take such 
remedial action as the Secretary considers necessary to overcome the 
effects of the discrimination.
    (2) Where a recipient is found to have discriminated against 
qualified persons on the basis of handicap in violation of section 504 
or this part and where another recipient exercises control over the 
recipient that has discriminated, the Secretary, where appropriate, may 
require either or both recipients to take remedial action.
    (3) The Secretary may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action with respect to:
    (i) Handicapped persons who are no longer participants in the 
recipient's program or activity but who were participants in the program 
or activity when such discrimination occurred;
    (ii) Handicapped persons who would have been participants in the 
program or activity had the discrimination not occurred; or

[[Page 21]]

    (iii) Handicapped persons presently in the program or activity, but 
not receiving full benefits or equal and integrated treatment within the 
program or activity.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects of the policies and 
practices that do not or may not meet the requirements of this part;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Secretary upon request:
    (i) A list of the interested persons consulted;
    (ii) A description of areas examined and any problems identified; 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.
    (3) Recipients who become such more than one year after the 
effective date of these regulations shall complete these self-evaluation 
requirements within one year after becoming recipients of Federal 
financial assistance.

(The information collection requirements contained in paragraph (c) have 
been approved by the Office of Management and Budget under control 
number 2900-0415)

[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984; 
68 FR 51370, Aug. 26, 2003]



Sec. 18.407  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more persons shall designate at least one person to 
coordinate its efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons shall adopt grievance procedures that 
incorporate appropriate due process standards and that provide for the 
prompt and equitable resolution of complaints alleging any action 
prohibited by this part. Such procedures need not be established with 
respect to complaints from applicants for employment or from applicants 
for admission to postsecondary educational institutions.



Sec. 18.408  Notice.

    (a) A recipient that employs fifteen or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with impaired 
vision or hearing, and unions or professional organizations holding 
collective bargaining or professional agreements with the recipient that 
it does not discriminate on the basis of handicap in violation of 
section 504 and this part. The notification shall state, where 
appropriate, that the recipient does not discriminate in admission or 
access to, or treatment, or employment in, its programs or activities. 
The notification shall also include an identification of the responsible 
employee designated under Sec. 18.407. A recipient shall make the 
initial notification required by this paragraph within 90 days of the 
effective date of this part. Methods of initial and continuing 
notification may include the posting of notices, publication in 
newspapers and

[[Page 22]]

magazines, placement of notices in recipient's publication, and 
distribution of memorandums or other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this section either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.409  Administrative requirements for certain recipients.

    The Secretary may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec. Sec. 
18.407 and 18.408 in whole or in part, when the Secretary finds a 
violation of this part or finds that such compliance will not 
significantly impair the ability of the recipient or class of recipients 
to provide benefits or services.



Sec. 18.410  Effect of State or local law or other requirements and 
effect of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any State law or other requirement that, 
on the basis of handicap, imposes prohibitions or limits upon the 
eligibility of qualified handicapped persons to receive services or to 
practice any occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
nonhandicapped persons.

                          Employment Practices



Sec. 18.411  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this part applies.
    (2) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (3) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination in employment. The 
relationships referred to in this section include relationships with 
employment and referral agencies, with organizations providing or 
administering fringe benefits to employees of the recipient, and with 
organizations providing training and apprenticeships.
    (b) Specific activities. Nondiscrimination in employment applies to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or other forms of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) Collective bargaining agreements. A recipient's obligation to 
comply with

[[Page 23]]

this subpart is not affected by any inconsistent term of any collective 
bargaining agreement to which it is a party.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.412  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of a handicapped applicant or employee if 
such accommodation would enable that person to perform the essential 
functions of the job unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include:
    (1) Making facilities used by employees readily accessible to and 
usable by handicapped persons; and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters and other similar actions.
    (c) In determining under paragraph (a) of this section whether an 
accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's work force; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for denial is 
the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
68 FR 51370, Aug. 26, 2003]



Sec. 18.413  Employment criteria.

    (a) A recipient may not use any employment test or other selection 
criterion that screens out or tends to screen out handicapped persons or 
any class of handicapped persons unless:
    (1) The test score or other selection criterion, as used by the 
recipient, is shown to be job-related for the position in question; and
    (2) Alternative job-related tests or criteria that do not screen out 
or tend to screen out as many handicapped persons are not shown by the 
Secretary to be available.
    (b) A recipient shall select and administer tests concerning 
employment to best ensure that when administered to an applicant or 
employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever other factor the test 
purports to measure, rather than reflect the applicant's or employee's 
impaired sensory, manual, or speaking skills (except when those skills 
are the factors that the test purports to measure).



Sec. 18.414  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature or severity of a handicap. A 
recipient may, however, make preemployment inquiry into the applicant's 
ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 18.406(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 18.406(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped, provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for

[[Page 24]]

use solely in connection with its remedial action obligations or its 
voluntary or affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, provided 
that:
    (1) All entering employees are subjected to such an examination 
regardless of handicap, and (2) the results of such an examination are 
used only in accordance with the requirements of this part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment;
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.

                              Accessibility



Sec. 18.421  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity to which 
this part applies.



Sec. 18.422  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this part applies so that when each part is viewed in 
its entirety it is readily accessible to handicapped persons. This 
paragraph does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons.
    (b) Methods. A recipient may comply with the requirement of 
paragraph (a) of this section through such measures as redesign of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aids to beneficiaries, home visits, delivery of 
health, or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with Sec. 18.423 or any other methods that make its program 
or activity accessible to handicapped persons. A recipient is not 
required to make structural changes in existing facilities where other 
methods are effective in making its programs or activities readily 
accessible to handicapped persons. In choosing among available methods 
for complying with paragraph (a) of this section, a recipient shall give 
priority to methods that serve handicapped persons in the most 
integrated setting appropriate.
    (c) Small health, welfare or other social service providers, and 
recipients that operate other than educational programs or activities. 
If a recipient with fewer than fifteen employees finds after 
consultation with a handicapped person seeking its services that there 
is no method of complying with paragraph (a) of this section other than 
making a significant alteration in its existing facilities, the 
recipient may, as an alternative, refer the qualified handicapped person 
to other providers whose services are accessible. Where referrals are 
necessary, transportation costs shall not exceed costs to and from 
recipients' programs or activities.
    (d) Time period. A recipient shall comply with paragraph (a) of this 
section within 60 days of the effective date of this part except that 
when structural changes in facilities are necessary, these changes shall 
be made as soon as practicable, but not later than three

[[Page 25]]

years after the effective date of this part.
    (e) Transition plan. If structural changes to facilities are 
necessary to meet the requirements of paragraph (a) of this section, a 
recipient shall develop a transition plan within six months of the 
effective date of this part setting forth the steps necessary to 
complete such change. The plan shall be developed with the assistance of 
interested persons, including handicapped persons or organizations 
representing handicapped persons. A copy of the transition plan shall be 
available for public inspection. The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under paragraph (a) of this section and, if the time 
period of the transition plan is longer than one year, identify steps 
that will be taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall implement procedures to ensure that 
interested persons, including persons with impaired vision or hearing, 
can obtain information concerning the existence and location of 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.

(The information collection requirements contained in paragraph (e) have 
been approved by the Office of Management and Budget under control 
number 2900-0414)

[45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984; 
68 FR 51370, Aug. 26, 2003]



Sec. 18.423  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed so that the facility or part of the facility is 
readily accessible to and usable by handicapped persons, if the 
construction was commenced after the effective date of this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part in a manner that affects or could affect the usability of 
the facility or part of the facility shall, to the maximum extent 
feasible, be altered so that the altered portion of the facility is 
readily accessible to and usable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 
1990]

               Elementary, Secondary, and Adult Education



Sec. 18.431  Application.

    Sections 18.431 through 18.439 apply to elementary, secondary, and 
adult education programs or activities that receive Federal financial 
assistance from the Department of Veterans Affairs and to recipients 
that operate or receive Federal financial assistance for

[[Page 26]]

the operation of such programs or activities.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.432  Location and notification.

    A recipient that operates a public elementary or secondary 
educational program shall annually:
    (a) Undertake to identify and locate every qualified handicapped 
person residing in the recipient's jurisdiction who is not receiving a 
public education; and
    (b) Take appropriate steps to notify handicapped persons their 
parents or guardians of the recipients's duty under Sec. Sec. 18.431 
through 18.439.



Sec. 18.433  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program shall provide a free appropriate public 
education to each qualified handicapped person who is in the recipient's 
jurisdiction, regardless of the nature or severity of the person's 
handicap.
    (b) Appropriate education. (1) The provision of an appropriate 
education is the provision of regular or special education and related 
aids and services that:
    (i) Are designed to meet individual educational needs of handicapped 
persons as adequately as the needs of nonhandicapped persons are met; 
and
    (ii) Are based upon adherence to procedures that satisfy the 
requirements of Sec. Sec. 18.434, 18.435, and 18.436.
    (2) Implementation of an Individualized Education Program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a qualified handicapped person or refer 
that person for aid, benefits, or services other than those that it 
operates or provides as its means of carrying out the requirements of 
Sec. Sec. 18.431 through 18.439. The recipients remain responsible for 
ensuring that the requirements of Sec. Sec. 18.431 through 18.439 are 
met with respect to any qualified handicapped person so placed or 
referred.
    (c) Free education. (1) The provision of a free education is the 
provision of educational and related services without cost to the 
handicapped person, parents or guardian, except for those fees that are 
imposed on nonhandicapped persons or their parents or guardian. It may 
consist either of the provision of free services or, if a recipient 
places a handicapped person or refers that person for aid, benefits, or 
services not operated or provided by the recipient as its means of 
carrying out the requirements of Sec. Sec. 18.431 through 18.439, of 
payment for the costs of the aid, benefits, or services. Funds available 
from any public or private agency may be used to meet the requirements 
of this subpart. Nothing in this section shall be construed to relieve 
an insurer or similar third party from an otherwise valid obligation to 
provide or pay for services provided to a handicapped person.
    (2) If a recipient places a handicapped person or refers that person 
for aid, benefits, or services not operated or provided by the recipient 
as its means of carrying out the requirements of this subpart, the 
recipient shall ensure that adequate transportation to and from the aid, 
benefits, or services is provided at no greater cost than would be 
incurred by the person, parents or guardian if the person were placed in 
the aid, benefits, or services operated by the recipient.
    (3) If placement in a public or private residential program is 
necessary to provide free appropriate public education to a handicapped 
person because of his or her handicap, the program, including non-
medical care and room and board, shall be provided at no cost to the 
person, parents or guardian.
    (4) If a recipient has made available, in conformance with this 
section and Sec. 18.434, a free appropriate public education to a 
handicapped person and the person's parents or guardian chooses to place 
the person in a private school, the recipient is not required to pay for 
the person's education in the private school. Disagreements between a 
parent or guardian and a recipient regarding whether the recipient has 
made a free appropriate public education available or regarding the 
question of financial responsibility are subject to the due process 
procedures of Sec. 18.436.

[[Page 27]]

    (d) Compliance. A recipient may not exclude any qualified 
handicapped person from a public elementary or secondary education after 
the effective date of this part. A recipient that is not, on the 
effective date of this part, in full compliance with the requirements of 
paragraphs (a) through (c) of this section shall meet those requirements 
at the earliest practicable time, but not later than October 1, 1981.

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
51 FR 12702, Apr. 15, 1986; 68 FR 51370, Aug. 26, 2003]



Sec. 18.434  Education setting.

    (a) Academic setting. A recipient shall educate, or shall provide 
for the education of, each qualified handicapped person in its 
jurisdiction with persons who are not handicapped to the maximum extent 
appropriate to the needs of the handicapped person. A recipient shall 
place a handicapped person in the regular educational environment 
operated by the recipient unless it is demonstrated by the recipient 
that the education of the person in the regular environment with the use 
of supplementary aids and services cannot be achieved satisfactorily. In 
deciding whether to place a person in a setting other than the regular 
educational environment, a recipient shall consider the proximity of the 
alternate setting to the person's home.
    (b) Nonacademic settings. In providing or arranging for the 
provision of nonacademic and extracurricular services and activities, a 
recipient shall ensure that handicapped persons participate with 
nonhandicapped persons in those activities and services to the maximum 
extent appropriate to the needs of the handicapped person in question.
    (c) Comparable facilities. If a recipient in compliance with 
paragraph (a) of this section operates a facility that is identifiable 
as being for handicapped persons, the recipient shall ensure that the 
facility and the services and activities provided in that facility are 
comparable to the other facilities, services, and activities of the 
recipient.



Sec. 18.435  Evaluation and placement.

    (a) Preplacement evaluation. A recipient that operates a public 
elementary or secondary education program or activity shall conduct an 
evaluation of any qualified person who, because of handicap, needs or is 
believed to need special education or related services before taking any 
action concerning the initial placement of the person in regular or 
program special education and any subsequent change in placement.
    (b) Evaluation procedures. Elementary, secondary, and adult 
education programs or activities that receive Federal financial 
assistance shall establish standards and procedures for the evaluation 
and placement of persons who, because of handicap, need or are believed 
to need special education or related services which ensure that:
    (1) Tests and other evaluation materials have been validated for the 
specific purpose for which they are used and are administered by trained 
personnel in conformance with the instructions provided by their 
producer;
    (2) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient; and
    (3) Tests are selected and administered to best ensure that, when a 
test is administered to a student with impaired sensory, manual, or 
speaking skills, the test results accurately reflect the student's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflect the student's impaired sensory, manual, 
or speaking skills (except where those skills are the factors that the 
test purports to measure.)
    (c) Placement procedures. In interpreting evaluation data and in 
making placement decisions, a recipient shall:
    (1) Draw upon information from a variety of sources, including 
aptitude and achievement tests, teacher recommendations, physical 
condition, social or cultural background and adaptive behavior;
    (2) Establish procedures to ensure that information obtained from 
all sources is documented and carefully considered;
    (3) Ensure that the placement decision is made by a group of 
persons, including persons knowledgeable about

[[Page 28]]

the student, the meaning of the evaluation data and the placement 
options; and
    (4) Ensure that the placement decision is made in accordance with 
Sec. 18.434.
    (d) Reevaluation. A recipient to which this section applies shall 
establish procedures, in accordance with paragraph (b) of this section, 
for periodic reevaluation of students who have been provided special 
education and related services. A reevaluation procedure consistent with 
the Education for the Handicapped Act is one means of meeting this 
requirement.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.436  Procedural safeguards.

    (a) A recipient that operates a public elementary or secondary 
education program shall implement a system of procedural safeguards with 
respect to actions regarding the identification, evaluation, or 
educational placement of persons who, because of handicap, need or are 
believed to need special instruction or related services. The system 
shall include:
    (1) Notice;
    (2) An opportunity for the parents or guardian of the person to 
examine relevant records;
    (3) An impartial hearing with opportunity for participation by the 
person's parents or guardian and representation by counsel; and
    (4) Review procedure.
    (b) Compliance with the procedural safeguards of section 615 of the 
Education of the Handicapped Act is one means of meeting this 
requirement.



Sec. 18.437  Nonacademic services.

    (a) General. (1) Elementary, secondary, and adult education programs 
that receive Federal financial assistance shall provide nonacademic and 
extracurricular services and activities in a manner which gives 
handicapped students an equal opportunity for participation in these 
services and activities.
    (2) Nonacademic and extracurricular services and activities may 
include counseling services, physical recreational athletics, 
transportation, health services, recreational activities, special 
interest groups or clubs sponsored by the recipient, referrals to 
agencies which provide assistance to handicapped persons, and employment 
of students, including both employment by the recipient and assistance 
in making available outside employment.
    (b) Counseling services. Elementary, secondary, and adult education 
programs that receive Federal financial assistance and that provide 
personal, academic, or vocational counseling, guidance, or placement 
services to their students shall provide these services without 
discrimination on the basis of handicap and shall ensure that qualified 
handicapped students are not counseled toward more restrictive career 
objectives than are nonhandicapped students with similar interests and 
abilities.
    (c) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, an elementary, secondary, or adult education 
program or activity that receives Federal financial assistance may not 
discriminate on the basis of handicap. A recipient that offers physical 
education courses or that operates or sponsors interscholastic, club, or 
intramural activities shall provide to qualified handicapped students an 
equal opportunity for participation.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different from those 
offered to nonhandicapped students only if separation or differentiation 
is consistent with the requirements of Sec. 18.434 and only if no 
qualified handicapped student is denied the opportunity to compete for 
teams or to participate in courses that are not separate or different.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.438  Adult education.

    A recipient that provides adult education may not, on the basis of 
handicap, exclude qualified handicapped persons. The recipient shall 
take into account the needs of these persons in determining the aid, 
benefits, or services to be provided.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]

[[Page 29]]



Sec. 18.439  Private education.

    (a) A recipient that provides private elementary or secondary 
education may not on the basis of handicap, exclude a qualified 
handicapped person if the person can, with minor adjustments, be 
provided an appropriate education, as defined in Sec. 18.433(b)(1), 
within that recipient's program or activity.
    (b) A recipient may not charge more for providing an appropriate 
education to handicapped persons than to nonhandicapped persons except 
to the extent that any additional charge is justified by a substantial 
increase in cost to the recipient.
    (c) A recipient to which this section applies that provides special 
education shall do so in accordance with Sec. Sec. 18.435 and 18.436. 
Each recipient to which this section applies is subject to Sec. Sec. 
18.434, 18.437, and 18.438.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]

                         Postsecondary Education



Sec. 18.441  Application.

    Sections 18.441 through 18.447 apply to postsecondary education 
programs or activities that receive Federal financial assistance from 
the Department of Veterans Affairs and to recipients that operate or 
receive or benefit from Federal financial assistance for the operation 
of such programs or activities.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.442  Admissions and recruitment.

    (a) General. Qualified handicapped persons may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient.
    (b) Admission. In administering its admission policies, a recipient;
    (1) May not apply limitations on the number or proportion of 
handicapped persons who may be admitted;
    (2) May not use any test or criterion for admission that has a 
disproportionate, adverse effect on handicapped persons or any class of 
handicapped persons unless:
    (i) The test or criterion, as used by the recipient, has been 
validated as a predictor of success in the education program or activity 
in question; and
    (ii) Alternate tests or criteria that have a less disproportionate, 
adverse effect are not shown by the Secretary to be available;
    (3) Shall assure itself that:
    (i) Admissions tests are selected and administered to best ensure 
that, when a test is administered to an applicant who has a handicap 
that impairs sensory, manual, or speaking skills, the test results 
accurately reflect the applicant's aptitude or achievement level or 
whatever other factors the test purports to measure, rather than reflect 
the applicant's impaired sensory, manual, or speaking skills (except 
where those skills are the factors that the test purports to measure);
    (ii) Admissions tests that are designed for persons with impaired 
sensory, manual, or speaking skills are offered as often and in as 
timely a manner as are other admissions tests; and
    (iii) Admissions tests are administered in facilities that, on the 
whole, are accessible to handicapped persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiries as to whether an applicant for admission is 
a handicapped person. After admission, the recipient may inquire on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination under 
Sec. 18.406(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity under Sec. 
18.406(b), the recipient may invite applicants for admission to indicate 
whether and to what extent they are handicapped.
    (1) The recipient shall state clearly on any written questionnaire 
used for this purpose or make clear orally if no written questionnaire 
is used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary action 
efforts; and
    (2) The recipient shall state clearly that the information is being 
requested

[[Page 30]]

on a voluntary basis, that it will be kept confidential, that refusal to 
provide it will not subject the applicant to any adverse treatment, and 
that it will be used only in accordance with this part.
    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question to 
monitor the general validity of the test scores.



Sec. 18.443  General treatment of students.

    (a) No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic, 
research, occupational training, housing, health insurance, counseling, 
financial aid, physical education, athletics, recreation, 
transportation, other extracurricular, or other aid, benefits, or 
services operated by a recipient to which this subpart applies.
    (b) A recipient that considers participation by students in 
education programs or activities not operated wholly by the recipient as 
part of, or equivalent to, an education program or activity operated by 
the recipient shall assure itself that the other education program or 
activity, as a whole, provides an equal opportunity for the 
participation of qualified handicapped persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap, exclude any qualified handicapped student from any course, 
course of study, or other part of its education program or activity.
    (d) A recipient shall operate its program or activity in the most 
integrated setting appropriate.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.444  Academic adjustments.

    (a) Academic requirements. A recipient shall make necessary 
modifications to its academic requirements to ensure that these 
requirements do not discriminate or have the effect of discriminating, 
on the basis of handicap, against a qualified handicapped applicant or 
student. Modifications may include changes in the length of time 
permitted for the completion of degree requirements, substitution of 
specific courses required for the completion of degree requirements, and 
adaptation of the manner in which specific courses are conducted. 
Academic requirements that the recipient can demonstrate are essential 
to the instruction being pursued by the student or to any directly 
related licensing requirement will not be regarded as discriminatory 
within the meaning of this section.
    (b) Other rules. A recipient may not impose upon handicapped 
students other rules, such as the prohibition of tape recorders in 
classrooms or guide dogs in campus buildings, that have the effect of 
limiting the participation of handicapped students in the recipient's 
education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating students' academic achievement, a recipient 
shall provide methods for evaluating the achievement of students who 
have a handicap that impairs sensory, manual, or speaking skills that 
will best ensure that the results of the evaluation represent the 
students' achievement in the course, rather than reflect the students' 
impaired sensory, manual, or speaking skills (except where such skills 
are the factors that the test purports to measure).
    (d) Auxiliary aids. (1) A recipient shall ensure that no qualified 
handicapped student is denied the benefits of, excluded from 
participation in, or otherwise subjected to discrimination because of 
the absence of educational auxiliary aids for students with impaired 
sensory, manual, or speaking skills.
    (2) Auxiliary aids may include taped texts, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services and actions. 
Recipients need not provide attendants, individually prescribed devices, 
readers for personal

[[Page 31]]

use or study, or other devices or services of a personal nature.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.445  Housing.

    (a) Housing provided by a recipient. A recipient that provides 
housing to its nonhandicapped students shall provide comparable, 
convenient, and accessible housing to qualified handicapped students at 
the same cost as to others. At the end of the transition period provided 
for in Sec. 18.422(e), this housing shall be available in sufficient 
quantity and variety so that the scope of handicapped students' choice 
of living accommodations is, as a whole, comparable to that of 
nonhandicapped students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall assure itself that such housing is, as a whole, made 
available in a manner that does not result in discrimination on the 
basis of handicap.



Sec. 18.446  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, a recipient may not:
    (i) On the basis of handicap, provide less assistance than is 
provided to nonhandicapped persons, limit eligibility for assistance, or 
otherwise discriminate; or
    (ii) Assist any entity or person that provides assistance to any of 
the recipient's students in a manner that discriminates against 
qualified handicapped persons on the basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trusts, bequests, or similar legal instruments 
that require awards to be made on the basis of factors that discriminate 
or have the effect of discriminating on the basis of handicap only if 
the overall effect of the award of scholarships, fellowships, and other 
forms of financial assistance is not discriminatory on the basis of 
handicap.
    (b) Assistance in making available outside employment. A recipient 
that assists any agency, organization, or person in providing employment 
opportunities to any of its students shall assure itself that these 
employment opportunities, as a whole, are made available in a manner 
that would not violate Sec. Sec. 18.411 through 18.414 if the 
opportunities were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates Sec. Sec. 
18.411 through 18.414.



Sec. 18.447  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, a recipient may not discriminate on the basis of 
handicap. A recipient that offers physical education courses or that 
operates or sponsors intercollegiate, club or intramural athletics shall 
provide to qualified handicapped students an equal opportunity for 
participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation or differentiation is consistent with the requirements of 
Sec. 18.443(d) and only if no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient that provides 
personal, academic, or vocational counseling, guidance, or placement 
services to its students shall provide these services without 
discrimination on the basis of handicap. The recipient shall ensure that 
qualified handicapped students are not counseled toward more restrictive 
career objectives than are nonhandicapped students with similar 
interests and abilities. This requirement does not preclude a recipient 
from providing factual information about licensing and certification 
requirements that may present obstacles to handicapped persons in their 
pursuit of particular careers.
    (c) Social organizations. A recipient that provides significant 
assistance to

[[Page 32]]

fraternities, sororities, or similar organizations shall assure itself 
that the membership practices of these organizations do not permit 
discrimination otherwise prohibited by Sec. Sec. 18.441 through 18.447.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]

                       Health and Social Services



Sec. 18.451  Application.

    Subpart F applies to health, and other social service programs or 
activities that receive Federal financial assistance from the Department 
of Veterans Affairs and to recipients that operate or receive Federal 
financial assistance for the operation of such programs or activities.

[45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003]



Sec. 18.452  Health and other social services.

    (a) General. In providing health, or other social services or 
benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;
    (2) Give a qualified handicapped person the opportunity to receive 
benefits or services that are not equal to those offered nonhandicapped 
persons.
    (3) Provide a qualified handicapped person with benefits or services 
that are not as effective (as defined in Sec. 18.404(b)(2)) as the 
benefits or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary to provide qualified 
handicapped persons with benefits and services that are as effective as 
those provided to others.
    (b) Notice. A recipient that provides notice concerning benefits or 
services or written material concerning waivers of rights of consent to 
treatment shall ensure that qualified handicapped persons, including 
those with impaired sensory or speaking skills, are not denied effective 
notice because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency care.
    (d) Auxiliary aids. (1) A recipient that employs fifteen or more 
persons shall provide appropriate auxiliary aids to persons with 
impaired sensory, manual, or speaking skills, where necessary to give 
these persons an equal opportunity to benefit from the service in 
question.
    (2) The Secretary may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) Auxiliary aids may include brailled and taped material, 
interpreters, and aids for persons with impaired hearing or vision.



Sec. 18.453  Drug and alcohol addicts.

    A recipient that operates a general hospital or outpatient facility 
may not discriminate, with regard to a drug or alcohol abuser or 
alcoholic who is suffering from a medical condition, in the admission of 
that person for treatment of the medical condition, or in the treatment 
of the medical condition because of the person's drug or alcohol abuse 
or alcoholism.



Sec. 18.454  Education of institutionalized persons.

    A recipient that operates or supervises a program or activity that 
provides aid, benefits, or services for persons who are 
institutionalized because of handicap and is responsible for providing 
training shall ensure that each qualified handicapped person, as defined 
in Sec. 18.403(k)(2), in its program or activity that provides aid, 
benefits, or services is provided an appropriate education, as defined 
in Sec. 18.433(b). Nothing in this section shall be interpreted as 
altering in any way the obligations of recipients under Sec. Sec. 
18.431 through 18.439.

[45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986; 68 FR 51370, 
Aug. 26, 2003]

[[Page 33]]

                               Procedures



Sec. 18.461  Procedures.

    The procedural provisions applicable to Title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
18.6 through 18.11 and part 18b of this chapter.

 Appendix A to Subpart D of Part 18--Statutory Provisions to Which This 
                              Part Applies

1. Payments to State Homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home, and 
          hospital care (38 U.S.C. 8131-8137).
3. Transfers for nursing home care; adult day health care (38 U.S.C. 
          1720).
4. Sharing of medical facilities, equipment, and information (38 U.S.C. 
          8151-8157).
5. Assistance in establishing new state medical schools, grants to 
          affiliated medical schools; assistance to health manpower 
          training institutions (38 U.S.C. Chapter 82).
6. Approval of educational institutions (38 U.S.C. 104).
7. Medical care for survivors and dependents of certain veterans (38 
          U.S.C. 1713).
8. Space and office facilities for representatives of State employment 
          service (38 U.S.C. 7725(4)).
9. Space and office facilities for representatives of recognized 
          national service organizations (38 U.S.C. 5902(a)(2)).
10. All-volunteer force educational assistance, vocational 
          rehabilitation post-Vietnam era veterans educational 
          assistance; veterans educational assistance, survivors' and 
          dependents' educational assistance, and administration of 
          educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 
          and 36 respectively).
11. Treatment and rehabilitation for alcohol or drug dependence or abuse 
          disabilities (38 U.S.C. 1720A).
12. Aid to States for establishment, expansion, and improvement of 
          veterans cemeteries (38 U.S.C. 2408).
13. Department of Veterans Affairs health professional scholarship 
          program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452).

[45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 
51 FR 12702, Apr. 15, 1986]



             Subpart E_Nondiscrimination on the Basis of Age

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101, et seq.; 45 CFR part 90 (1979).

    Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.

                                 General



Sec. 18.501  Purpose.

    The purpose of these regulations is to set out Department of 
Veterans Affairs (VA) policies and procedures under the Age 
Discrimination Act of 1975 and the governmentwide age discrimination 
regulations at 45 CFR part 90. The Act and the governmentwide 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
governmentwide regulations permit federally assisted programs or 
activities, and recipients of Federal funds, to continue to use age 
distinctions and factors other than age which meet the requirements of 
the Act and its implementing regulations.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23, 1989; 
68 FR 51372, Aug. 26, 2003]



Sec. 18.502  Application.

    (a) These regulations apply to any program or activity receiving 
Federal financial assistance provided by VA directly or through another 
recipient.
    (b) These regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State, 
or local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except any program or activity receiving Federal 
financial assistance for public service employment under

[[Page 34]]

the Job Training Partnership Act, 29 U.S.C. 1501, et seq.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.503  Definitions.

    As used in these regulations:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Secretary means the Secretary of Veterans Affairs or designees.
    (d) Age means how old a person is, or the number of elapsed years 
from the date of a person's birth.
    (e) Age discrimination means unlawful treatment based on age.
    (f) Age distinction means any action using age or an age-related 
term.
    (g) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, adult, older 
persons, but not student).
    (h) Day means calendar day.
    (i) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which a 
Federal agency or department provides or otherwise makes available 
assistance in the form of:
    (1) Funds; or
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its market value is not returned to the Federal 
Government.
    (j) Program or activity means all of the operations of any entity 
described in paragraphs (j)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity that is established by two or more of the 
entities described in paragraph (j)(1), (2), or (3) of this section.
    (k) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended, directly or 
through another recipient. Recipient includes any successor, assignee, 
or transferee, but excludes the ultimate beneficiary of the assistance.
    (l) Subrecipient means any of the entities in the definition of 
recipient to which a recipient extends or passes on Federal financial 
assistance. A subrecipient is generally regarded as a recipient of 
Federal financial assistance and has all the duties of a recipient in 
these regulations.
    (m) United States means the fifty States, the District of Columbia, 
Puerto Rico, the Virgin Islands, the Canal

[[Page 35]]

Zone, the Trust Territories of the Pacific Islands, the Northern 
Marianas, and the territories and possessions of the United States.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51371, Aug. 26, 2003]

              Standards for Determining Age Discrimination



Sec. 18.511  Rules against age discrimination.

    The rules in this section are limited by the exceptions contained in 
Sec. Sec. 18.513 and 18.514 of these regulations.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.512  Definitions of ``normal operation'' and ``statutory objective.''

    For the purpose of these regulations, the terms normal operation and 
statutory objective shall have the following meaning:
    (a) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (b) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute, or local statute 
or ordinance adopted by an elected, general purpose legislative body.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.513  Exceptions to the rules against age discrimination; normal 
operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 18.511, if the action reasonably takes into account age as a 
factor necessary to the normal operation or the achievement of any 
statutory objective of a program or activity. An action reasonably takes 
into account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.514  Exceptions to the rules against age discrimination; 
reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 18.511 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages. 
An action may be based on a factor other than age only if the factor 
bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.515  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec. 18.513 and

[[Page 36]]

18.514 is on the recipient of Federal financial assistance.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.516  Affirmative action by recipients.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.

(Authority: 42 U.S.C. 6101-6107)

      Responsibilities of Department of Veterans Affairs Recipients



Sec. 18.531  General responsibilities.

    Each VA recipient must ensure that its programs or activities are in 
compliance with the Act and these regulations.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]



Sec. 18.532  Notice of subrecipients.

    Where a recipient passes on Federal financial assistance from VA to 
programs or activities of subrecipients, the recipient shall provide the 
subrecipients written notice of their obligations under the Act and 
these regulations with respect to such programs and activities.

(Approved by the Office of Management and Budget under control number 
2900-0400)

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]



Sec. 18.533  Assurance of compliance and recipient assessment of age 
distinctions.

    (a) Each recipient of Federal financial assistance from VA shall 
sign a written assurance as specified by the Secretary that it will 
comply with the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec. 18.541 or complaint investigation under 
Sec. 18.544, the Secretary may require a recipient employing the 
equivalent of 15 of more employees to complete a written self-
evaluation, in a manner specified by the responsible agency official, of 
any age distinction imposed in its programs or activities receiving 
Federal financial assistance from VA to assess the recipient's 
compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act or these 
regulations, the recipient shall take corrective action.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.534  Information requirements.

    Each recipient shall:
    (a) Make available upon request to VA information necessary to 
determine whether the recipient is complying with the Act and these 
regulations.
    (b) Permit reasonable access by VA to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
necessary to determine whether the recipient is in compliance with the 
Act and these regulations.

(Authority: 42 U.S.C. 6101-6107)

         Investigation, Conciliation, and Enforcement Procedures



Sec. 18.541  Compliance reviews.

    (a) VA may conduct compliance reviews and preaward reviews of 
recipients or use other similar procedures that will permit it to 
investigate and correct violations of the Act and these regulations. VA 
may conduct these reviews even in the absence of a complaint against a 
recipient. The review may be as comprehensive as necessary to determine 
whether a violation of these regulations has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or these regulations, VA will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, VA 
may institute enforcement proceedings as described in Sec. 18.546.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.542  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with VA alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1,

[[Page 37]]

1979. A complainant shall file a complaint within 180 days from the date 
the complainant first had knowledge of the alleged act of 
discrimination. However, for good cause shown, VA may extend this time 
limit. Complaints may be submitted to the Director, Office of Equal 
Opportunity (06B), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420.
    (b) VA will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Acknowledging receipt and acceptance of a complaint in writing.
    (2) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (3) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (4) Widely disseminating information regarding the obligations of 
recipients under the Act and these regulations.
    (5) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (6) Notifying the complainant and the recipient (or their 
representatives) of their right to contact VA for information and 
assistance regarding the complaint resolution process.
    (c) VA will refer a complaint of discrimination based on age to 
another appropriate Federal agency when the complaint is outside the 
jurisdiction of VA. VA will notify the complainant in writing that the 
complaint has been referred; explain the reason why the complaint is not 
within the jurisdiction of VA; and give the complainant the name, 
agency, and address of the official to whom the complaint was referred.

(Approved by the Office of Management and Budget under control number 
2900-0401)

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.543  Mediation.

    (a) Referral of complaints for mediation. VA will refer to the 
Federal Mediation and Conciliation Service all complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations; 
and
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible. However, the 
recipient and the complainant need not meet with the mediator at the 
same time.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to VA. VA will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjunctive proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) VA will use the mediation process for a maximum of 60 days after 
the responsible agency official receives a complaint.
    (f) Mediation ends if:
    (1) 60 days elapse from the time the responsible agency official 
receives the complaint; or
    (2) Prior to the end of that 60-day period, an agreement is reached; 
or
    (3) Prior to the end of that 60-day period, the mediator determines 
that an agreement cannot be reached.
    (g) The mediator shall return unresolved complaints to VA.

(Authority: 42 U.S.C. 6101-6107)

[[Page 38]]



Sec. 18.544  Investigation.

    (a) Informal investigation. (1) VA will investigate complaints that 
are reopened because of a violation of a mediation agreement.
    (2) As part of the initial investigation VA will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. VA may seek the assistance of any involved State agency.
    (3) VA will put any agreement in writing and have it signed by the 
parties and an authorized official from the VA.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of VA, including compliance reviews and investigation 
of other complaints which may involve the recipient.
    (5) A settlement need not contain an admission of discrimination or 
other wrongdoing by the recipient nor should it be considered a finding 
of discrimination against the recipient.
    (b) Formal investigation. If VA cannot resolve the complaint through 
informal investigation, it will begin to develop formal findings through 
further investigation of the complaint. If the investigation indicates a 
violation of these regulations, VA will attempt to obtain voluntary 
compliance. If voluntary compliance cannot be achieved, VA may institute 
enforcement proceedings as described in Sec. 18.546.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]



Sec. 18.545  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of VA's investigation, conciliation, and enforcement process.

(Authority: 42 U.S.C. 6101-6107)



Sec. 18.546  Compliance procedure.

    (a) VA may enforce the Act and these regulations through:
    (1) Termination of Federal financial assistance from VA with respect 
to a recipient's program or activity that has violated the Act or these 
regulations. The determination of the recipient's violation may be made 
only after a recipient has had an opportunity for a hearing on the 
record before an administrative law judge. Therefore, cases which are 
settled in mediation, or prior to a hearing, will not involve 
termination of a recipient's Federal financial assistance from VA.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) VA will limit any termination under paragraph (a)(1) of this 
section to the particular program or activity or part of such program or 
activity of a recipient that VA finds to be in violation of the Act or 
these regulations. VA will not base any part of a termination on a 
finding with respect to any program or activity of the recipient which 
does not receive Federal financial assistance from VA.
    (c) VA will take no action under paragraph (a) of this section 
until:
    (1) The Secretary has advised the recipient of its failure to comply 
with the Act and these regulations and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the program or 
activity involved. The Secretary will file a report whenever any action 
is taken under paragraph (a) of this section.
    (d) VA also may defer granting new Federal financial assistance from 
VA to a recipient when a hearing under

[[Page 39]]

paragraph (a)(1) of this section is initiated.
    (1) New Federal financial assistance from VA includes all assistance 
for which VA requires an application or approval, including renewal or 
continuation of existing activities, or authorization of new activities 
during the deferral period. New Federal financial assistance from VA 
does not include increases in funding resulting solely from a change in 
the formula or method of computing awards, nor does it include 
assistance approved prior to the beginning of a hearing under paragraph 
(a)(1) of this section.
    (2) VA will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under paragraph (a)(1) of this 
section. VA will not continue a deferral for more than 60 days unless a 
hearing has begun within that time or the time for beginning the hearing 
has been extended by mutual consent of the recipient and the Secretary. 
VA will not continue a deferral for more than 30 days after the close of 
the hearing, unless the hearing results in a finding against the 
recipient.

(Authority: 42 U.S.C. 6101-6107)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]



Sec. 18.547  Hearings, decisions, post-termination proceedings.

    Certain VA procedural provisions applicable to Title VI of the Civil 
Rights Act of 1964 apply to VA enforcement of these regulations. They 
are found at Sec. Sec. 18.9 through 18.11 and part 18b of this title.

(Authority: 42 U.S.C. 6101-1607)



Sec. 18.548  Remedial action by recipient.

    Where VA finds that a recipient has discriminated on the basis of 
age, the recipient shall take any remedial action that VA may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that has discriminated, VA may 
require both recipients to take remedial action.

(Authority: 42 U.S.C. 6101-1607)



Sec. 18.549  Alternate funds disbursal procedure.

    (a) When VA withholds funds from a recipient under these 
regulations, the Secretary may disburse the withheld funds directly to 
an alternate recipient: Any public or non-profit private organization or 
agency, or State or political subdivision of the State.
    (b) The Secretary will require any alternate recipient to 
demonstrate;
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

(Authority: 42 U.S.C. 6101-1607)

[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]



Sec. 18.550  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and VA has made no finding with regard to the complaint; or
    (2) VA issues any finding in favor of the recipient.
    (b) If VA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, VA will:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant that:
    (i) The complainant may bring a civil action only in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but the complainant must demand these costs in the complaint;
    (iii) Before commencing the action, the complainant shall give 30 
days notice by registered mail to the Secretary, the Attorney General of 
the United States, and the recipient;

[[Page 40]]

    (iv) The notice must state: The alleged violation of the Act; the 
relief requested; the court in which the complainant is bringing the 
action; and, whether or not attorney's fees are demanded in the event 
the complainant prevails; and
    (v) The complainant may not bring action if the same alleged 
violations of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

(Authority: 42 U.S.C. 6101-6107)

 Appendix A to Subpart E of Part 18--Statutory Provisions to Which This 
                             Subpart Applies

    1. Approval of educational institutions (38 U.S.C. 104).
    2. Space and office facilities for representatives of State 
employment services (38 U.S.C. 7725(1)).
    3. Medical care for survivors and dependents of certain veterans (38 
U.S.C. 1713).
    4. Transfers for nursing home care; adult day health care (38 U.S.C. 
1720).
    5. Treatment and rehabilitation for alcohol or drug dependence or 
abuse disabilities (38 U.S.C. 1720A).
    6. Payments to State Homes (38 U.S.C. 1741-1743).
    7. Aid to States for establishment, expansion, and improvement of 
veterans' cemeteries (38 U.S.C. 2408).
    8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational 
Assistance; Survivors' and Dependents' Educational Assistance; and 
Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34, 
35 and 36 respectively).
    9. Space and office facilities for representatives of recognized 
national organizations (38 U.S.C. 5902(a)(2)).
    10. Department of Veterans Affairs Health Professional Scholarship 
Program (38 U.S.C. 7601-7655).
    11. State Home Facilities for Furnishing Domiciliary, Nursing Home 
and Hospital Care (38 U.S.C. 8131-8137).
    12. Sharing of Medical Facilities, Equipment and Information (38 
U.S.C. 8151-8157).
    13. Assistance in Establishing New State Medical Schools; Grants to 
Affiliated Medical Schools; Assistance to Health Manpower Training 
Institutions (38 U.S.C. Chapter 82).
    14. Emergency Veterans' Job Training (Pub. L. 98-77, 97 Stat. 443-
452).

 Appendix B to Subpart E of Part 18--List of Age Distinctions Contained 
 in Statutes and Regulations Governing Federal Financial Assistance of 
                   the Department of Veterans Affairs

    Section 90.31(f) of the governmentwide regulations (45 CFR part 90) 
requires each Federal agency to publish an appendix to its final 
regulations containing a list of age distinctions in Federal statutes 
and regulations affecting financial assistance administered by the 
agency. This appendix is VA's list of age distinctions contained in 
Federal statutes and VA regulations which:
    (1) Provide benefits or assistance to persons based upon age; or
    (2) Establish criteria for participation in age-related terms; or
    (3) Describe intended beneficiaries or target groups in age-related 
terms.
    Appendix B deals only with VA's programs of financial assistance 
covered by the Age Discrimination Act. It does not list age distinctions 
used by VA in its direct assistance programs, such as veterans' 
compensation. Also, this appendix contains only age distinctions in 
Federal statutes and VA regulations in effect on January 1, 1985.
    This appendix has two sections: A list of age distinctions in 
Federal statutes, and a list of age distinctions in VA regulations. The 
first column contains the name of the program; the second column has the 
statute name and U.S. Code citation for statutes, or the regulation name 
and Code of Federal Regulations citation for regulations; the third 
column contains the section number of the statute or regulation and the 
description of the age distinction; and the fourth column cites the 
Catalog of Federal Domestic Assistance number for the program(s) 
affected where it is available.

[[Page 41]]



   Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans
                                                     Affairs
----------------------------------------------------------------------------------------------------------------
                 Program                            Statute               Section and Age Distinction      CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits......................  Section 101 of the           Section 101(4)(A) defines the
                                           Veterans' Benefits Act of    term ``child'' for the purposes
                                           1957, as amended; 38         of Title 38, U.S.C. (except for
                                           U.S.C. 101.                  chapter 19 and section 8502(b)
                                                                        of Title 38) as ``a person who
                                                                        is unmarried and--(i) who is
                                                                        under the age of eighteen
                                                                        years; (ii) who, before
                                                                        attaining the age of eighteen
                                                                        years, became permanently
                                                                        incapable of self-support; or
                                                                        (iii) who, after attaining the
                                                                        age of eighteen years and until
                                                                        completion of education or
                                                                        training (but not after
                                                                        attaining the age of twenty-
                                                                        three years), is pursuing a
                                                                        course of instruction at an
                                                                        approved educational
                                                                        institution; and who is a
                                                                        legitimate child, a legally
                                                                        adopted child, a stepchild who
                                                                        is a member of a veteran's
                                                                        household or was a member at
                                                                        the time of the veteran's
                                                                        death, or an illegitimate child
                                                                        but, as to the alleged father,
                                                                        only if acknowledged in writing
                                                                        signed by him, or if he has
                                                                        been judicially ordered to
                                                                        contribute to the child's
                                                                        support or has been, before his
                                                                        death, judicially decreed to be
                                                                        the father of such child, or if
                                                                        he is otherwise shown by
                                                                        evidence statisfactory to the
                                                                        Secretary to be the father or
                                                                        such child. . . .''.
                                                                       Section 101(4)(B) provides that
                                                                        for the purposes of section
                                                                        101(4)(A) of Title 38, in the
                                                                        case of an adoption under the
                                                                        laws of any jurisdiction other
                                                                        than a State, a person residing
                                                                        outside any of the States shall
                                                                        not be considered a legally
                                                                        adopted child of a veteran
                                                                        during the lifetime of that
                                                                        veteran, unless, among other
                                                                        things, such a person was less
                                                                        than eighteen years of age at
                                                                        the time of the adoption.
Approval of Educational Institutions....  Section 104 of the           Section 104(a) authorizes the
                                           Veterans' Benefits Act of    Secretary to approve or
                                           1957, as amended, 38         disapprove an educational
                                           U.S.C. 104.                  institution for the purpose of
                                                                        determining whether or not
                                                                        benefits are payable under
                                                                        Title 38, U.S.C. (except
                                                                        chapter 15 of title 38) for a
                                                                        child over the age of eighteen
                                                                        years and under the age of
                                                                        twenty-three years who is
                                                                        attending a school, college,
                                                                        academy, seminary, technical
                                                                        institution, university, or
                                                                        other educational institution.
                                                                       Section 104(b) provides that the
                                                                        Secretary may not approve an
                                                                        educational institution under
                                                                        section 104 of Title 38, unless
                                                                        the institution has agreed to
                                                                        report the termination of
                                                                        attendance of any child. If the
                                                                        educational institution fails
                                                                        to report any such termination
                                                                        promptly, the approval of the
                                                                        Secretary shall be withdrawn.
Civilian Health and Medical Program of    Section 103(b) of the        Section 1713(a) authorizes the     64.009
 the Department of Veterans Affairs        Veterans Health Care         Secretary to provide medical
 (CHAMPA).                                 Expansion Act of 1973, as    care to: ``(1) The spouse or
                                           amended; 38 U.S.C. 1713.     child of a veteran who has a
                                                                        total disability, permanent in
                                                                        nature, resulting from a
                                                                        service-connected disability,
                                                                        (2) the surviving spouse or
                                                                        child of a veteran who (A) died
                                                                        as a result of a service-
                                                                        connected disability, or (B) at
                                                                        the time of death had a total
                                                                        disability permanent in nature,
                                                                        resulting from a service-
                                                                        connected disability, and (3)
                                                                        the surviving spouse or child
                                                                        of a person who died in the
                                                                        active military, naval, or air
                                                                        service in the line of duty and
                                                                        not due to such person's own
                                                                        misconduct, who are not
                                                                        otherwise eligible for medical
                                                                        care under Chapter 55 of Title
                                                                        10, U.S.C. (CHAMPUS).

[[Page 42]]

 
                                                                       Section 1713(c) provides that
                                                                        for the purposes of this
                                                                        program, ``a child between the
                                                                        ages of eighteen and twenty-
                                                                        three (1) who is eligible for
                                                                        benefits under subsection (a)
                                                                        of this section, (2) who is
                                                                        pursuing a full-time course of
                                                                        instruction at an educational
                                                                        institution, approved under
                                                                        Chapter 36 of this title, and
                                                                        (3) who while pursuing such
                                                                        course of instruction, incurs a
                                                                        disabling illness or injury . .
                                                                        . which results in such child's
                                                                        inability to continue or resume
                                                                        such child's chosen program of
                                                                        education . . . shall remain
                                                                        eligible for benefits under
                                                                        this section until the end of
                                                                        the six-month period beginning
                                                                        on the date the disability is
                                                                        removed, the end of the two-
                                                                        year period beginning on the
                                                                        date of the onset of the
                                                                        disability, or the twenty-third
                                                                        birthday of the child,
                                                                        whichever occurs first''.
VA Hospital, Domiciliary or Nursing Home  Section 510 of the           Section 1710 authorizes the        64.009
 Care.                                     Veterans' Benefits Act of    Secretary, within the limits of   64.010
                                           1957, amended; 38 U.S.C.     VA facilities, to furnish         64.015
                                           1710.                        hospital care or nursing home     64.016
                                                                        care. Among the persons
                                                                        eligible for such care are
                                                                        veterans with a nonservice-
                                                                        connected disability if they
                                                                        are sixty-five years of age or
                                                                        older.
Post-Vietnam Era Veterans' Educational    Post Vietnam Era Veterans'   Section 3201 states that the       64.120
 Assistance.                               Educational Act of 1977,     purpose of Chapter 32 of Title
                                           as amended; U.S.C. Chapter   38, U.S.C. is: ``(1) To provide
                                           32.                          educational asssistance to
                                                                        those men and women who enter
                                                                        the Armed Forces after December
                                                                        31, 1976, (2) to assist young
                                                                        men and women in obtaining an
                                                                        education they might not
                                                                        otherwise be able to afford,
                                                                        and (3) to promote and assist
                                                                        the all volunteer military
                                                                        program of the United States by
                                                                        attracting qualified men and
                                                                        women to serve in the Armed
                                                                        Forces''.
Veterans' Educational Assistance........  Section 2 of the Veterans'   Section 3451 states that the       64.111
                                           Readjustment Benefits Act    education program created by
                                           of 1966, amended; 38         this chapter is for the purpose
                                           U.S.C. Chapter 34.           of: `` . . . (1) Enhancing and
                                                                        making more attractive service
                                                                        in the Armed Forces of the
                                                                        United States, (2) extending
                                                                        the benefits of higher
                                                                        education to qualified and
                                                                        deserving young persons who
                                                                        might not otherwise be able to
                                                                        afford such an education, (3)
                                                                        providing vocational
                                                                        readjustment and restoring lost
                                                                        educational opportunities to
                                                                        those service men and women
                                                                        whose careers have been
                                                                        interrupted or impeded by
                                                                        reason of active duty after
                                                                        January 31, 1955, and (4)
                                                                        aiding such persons in
                                                                        attaining the vocational and
                                                                        educational status which they
                                                                        might normally have aspired to
                                                                        and obtained had they not
                                                                        served their country''.
                                                                       Section 3492(b) authorizes the
                                                                        Secretary to pay to an eligible
                                                                        veteran receiving tutorial
                                                                        assistance pursuant to section
                                                                        3492(a) of this chapter, the
                                                                        cost of such tutorial
                                                                        assistance, subject to certain
                                                                        limits, upon certification by
                                                                        the educational institution
                                                                        that `` . . . (2) the tutor
                                                                        chosen to perform such
                                                                        assistance is qualified and is
                                                                        not the eligible veteran's
                                                                        parent, spouse, child (whether
                                                                        or not married or over eighteen
                                                                        years of age), brother, or
                                                                        sister; and (3) the charges for
                                                                        such assistance do not exceed
                                                                        the customary charges for such
                                                                        tutorial assistance''.

[[Page 43]]

 
Survivors' and Dependents' Educational    War Orphans' Educational     Section 3500 states that ``the     64.117
 Assistance.                               Assistance Act of 1956, as   educational program established
                                           amended; 38 U.S.C. Chapter   by this chapter is for the
                                           35.                          purpose of providing
                                                                        opportunities for education to
                                                                        children whose education would
                                                                        otherwise be impeded or
                                                                        interrupted by reason of the
                                                                        disability or death of a parent
                                                                        from a disease or injury
                                                                        incurred or aggravated in the
                                                                        Armed Forces after the
                                                                        beginning of the Spanish-
                                                                        American War, and for the
                                                                        purpose of aiding such children
                                                                        in attaining the educational
                                                                        status which they might have
                                                                        aspired to and attained but for
                                                                        the disability or death of such
                                                                        parent. The Congress further
                                                                        declares that the educational
                                                                        program extended to the
                                                                        surviving spouses of veterans
                                                                        who died of service-connected
                                                                        total disabilities and to
                                                                        spouses of veterans with a
                                                                        service-connected total
                                                                        disability permanent in nature
                                                                        is for the purpose of assisting
                                                                        them in preparing to support
                                                                        themselves and their families
                                                                        at a standard of living level
                                                                        which the veteran, but for the
                                                                        veteran's death or service
                                                                        disability, could have expected
                                                                        to provide for the veteran's
                                                                        family''.
                                                                       Section 3501 defines the term
                                                                        ``eligible person'' as: ``(A) a
                                                                        child of a person who--(i) died
                                                                        of a service-connected
                                                                        disability, (ii) has a total
                                                                        disability permanent in nature
                                                                        resulting from a service-
                                                                        connected disability, or who
                                                                        died while a disability so
                                                                        evaluated was in existence or
                                                                        (iii) at the time of
                                                                        application for benefits under
                                                                        this chapter is a member of the
                                                                        Armed Forces serving on active
                                                                        duty listed, pursuant to
                                                                        section 556 of Title 37
                                                                        [U.S.C.] and regulations issued
                                                                        thereunder, by the Secretary
                                                                        concerned in one or more of the
                                                                        following categories . . . for
                                                                        a total of ninety days: (A)
                                                                        missing in action, (B) captured
                                                                        in line of duty by a hostile
                                                                        force, or (C) forcibly detained
                                                                        or interned in line of duty by
                                                                        a foreign government or power,
                                                                        . . .'' Subparagraph (a)(2) of
                                                                        this section provides that the
                                                                        term ``child'' includes
                                                                        individuals who are married and
                                                                        individuals who are above the
                                                                        age of twenty-three years.

[[Page 44]]

 
                                                                       Section 3512 establishes periods
                                                                        of eligibility. Provides that
                                                                        the educational program to
                                                                        which an eligible child within
                                                                        the meaning of this chapter is
                                                                        entitled to may be afforded,
                                                                        ``. . . during the period
                                                                        beginning on the person's
                                                                        eighteenth birthday, or on the
                                                                        successful completion of the
                                                                        person's secondary schooling,
                                                                        whichever first occurs, and
                                                                        ending on the person's twenty-
                                                                        sixth birthday, except that--
                                                                        (1) if the person is above the
                                                                        age of compulsory school
                                                                        attendance under applicable
                                                                        State law, and the Secretary
                                                                        determines that the person's
                                                                        best interests will be served
                                                                        thereby, such period may begin
                                                                        before the person's eighteenth
                                                                        birthday; (2) if the person has
                                                                        a mental or physical handicap,
                                                                        and . . . the person's best
                                                                        interests will be served by
                                                                        pursuing a program of special
                                                                        restorative training or a
                                                                        specialized course of
                                                                        vocational training approved
                                                                        under section 3536 of this
                                                                        title, such period may begin
                                                                        before the person's fourteenth
                                                                        birthday; (3) if the Secretary
                                                                        finds that the parent from whom
                                                                        eligibility is derived has a
                                                                        service-connected total
                                                                        disability permanent in nature,
                                                                        or if the death of the parent
                                                                        from whom eligibility is
                                                                        derived occurs, after the
                                                                        eligible person's eighteenth
                                                                        birthday but before the
                                                                        person's twenty-sixth birthday,
                                                                        then (unless paragraph (4)
                                                                        applies) such period shall end
                                                                        8 years after, whichever date
                                                                        last occurs: (A) the date on
                                                                        which the Secretary first finds
                                                                        that the parent from whom
                                                                        eligibility is derived has a
                                                                        service-connected total
                                                                        disability permanent in nature,
                                                                        or (B) the date of death of the
                                                                        parent from whom eligibility is
                                                                        derived; (4) if the person
                                                                        serves on duty with the Armed
                                                                        Forces as an eligible person
                                                                        after the person's eighteenth
                                                                        birthday but before the
                                                                        person's twenty-sixth birthday,
                                                                        then such period shall end 8
                                                                        years after the person's first
                                                                        discharge or release from such
                                                                        duty with the Armed Forces . .
                                                                        . in no event shall such period
                                                                        be extended beyond the person's
                                                                        thirty-first birthday by reason
                                                                        of this paragraph; and (5)(A)
                                                                        if the person becomes eligible
                                                                        by reason of the the provisions
                                                                        of section 3501(a)(1)(A)(ii) of
                                                                        this title after the person's
                                                                        eighteenth birthday but before
                                                                        the person's twenty-sixth
                                                                        birthday, then (unless clause
                                                                        (4) of this section applies)
                                                                        such period shall end eight
                                                                        years after the date on which
                                                                        the person becomes eligible by
                                                                        reason of such provisions, but
                                                                        in no event shall such period
                                                                        be extended beyond the person's
                                                                        thirty-first birthday by reason
                                                                        of this clause. . . .''.
                                                                       Section 3513 provides that the
                                                                        parent or guardian of a person
                                                                        or the eligible person (if such
                                                                        person has attained legal
                                                                        majority) for whom the
                                                                        educational assistance is
                                                                        sought under Chapter 35 shall
                                                                        submit an application to the
                                                                        Secretary, which shall be in
                                                                        such form and contain such
                                                                        information as the Secretary
                                                                        shall prescribe.

[[Page 45]]

 
                                                                       Section 3562 provides that the
                                                                        commencement of a program of
                                                                        education or special
                                                                        restorative training under
                                                                        Chapter 35 shall be a bar,
                                                                        ``(1) to subsequent payments of
                                                                        compensation, dependency and
                                                                        indemnity compensation, or
                                                                        pension based on a death of a
                                                                        parent to an eligible person
                                                                        over the age of eighteen by
                                                                        reason of pursuing a course in
                                                                        an educational institution, or
                                                                        (2) to increased rates, or
                                                                        additional amounts of
                                                                        compensation, dependency and
                                                                        indemnity compensation, or
                                                                        pension because of such a
                                                                        person whether eligibility is
                                                                        based upon the death or upon
                                                                        the total permanent disability
                                                                        of the parent''.
                                                                       Section 3563 states that ``The
                                                                        Secretary shall notify the
                                                                        parent or guardian of each
                                                                        eligible person as defined in
                                                                        section 3501(a)(1)(A) of this
                                                                        title of the educational
                                                                        assistance available to such
                                                                        person under Chapter 35. Such
                                                                        notification shall be provided
                                                                        not later then the month in
                                                                        which such eligible person
                                                                        attains such person's
                                                                        thirteenth birthday or as soon
                                                                        thereafter as feasible''.
----------------------------------------------------------------------------------------------------------------


  Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans
                                                     Affairs
----------------------------------------------------------------------------------------------------------------
                 Program                           Regulation             Section and Age Distinction      CFDA
----------------------------------------------------------------------------------------------------------------
Veterans' Benefits......................  Adjudication (38 CFR part    Section 3.57 defines the term
                                           3).                          ``child'' of a veteran as, ``.
                                                                        . . an unmarried person who is
                                                                        a legitimate child, a child
                                                                        legally adopted before the age
                                                                        of 18 years, a stepchild who
                                                                        acquired that status before the
                                                                        age of 18 years and who is a
                                                                        member of the veteran's
                                                                        household or was a member of
                                                                        the veteran's household at the
                                                                        time of the veteran's death, or
                                                                        an illegitimate child; and (i)
                                                                        who is under the age of 18
                                                                        years; or (ii) who, before
                                                                        reaching the age of 18 years,
                                                                        became permanently incapable of
                                                                        self-support; or (iii) who,
                                                                        after reaching the age of 18
                                                                        years and until completion of
                                                                        education or training (but not
                                                                        after reaching the age of 23
                                                                        years) is pursuing a course of
                                                                        instruction at an approved
                                                                        educational institution. (2)
                                                                        For the purposes of determining
                                                                        entitlement of benefits based
                                                                        on a child's school attendance,
                                                                        the term ``child'' of the
                                                                        veteran also includes the
                                                                        following unmarried persons:
                                                                        (i) A person who was adopted by
                                                                        the veteran between the ages of
                                                                        18 or 23 years. (ii) A person
                                                                        who became a stepchild of a
                                                                        veteran between the ages of 18
                                                                        or 23 years and who is a member
                                                                        of the veteran's household at
                                                                        the time of the veteran's
                                                                        death. . . .''
Survivors' and Dependents' Educational    Adjudication (38 CFR part    Section 3.807(d) sets forth        64.117
 Assistance.                               3).                          basic eligibility criteria for
                                                                        the program of educational
                                                                        assistance under 38 U.S.C.
                                                                        Chapter 35. Defines the term
                                                                        ``child'' as the son or
                                                                        daughter of a veteran who meets
                                                                        the requirements of 38 CFR
                                                                        3.57, except as to age or
                                                                        marital status.
                                          Survivors' and Dependent's   Section 21.3021 describes
                                           Educational Assistant        beneficiaries of the program.
                                           Under 38 U.S.C. Chapter 35   Paragraph (a) defines the term
                                           (38 CFR part 21, subpart     ``eligible person'' as, ``(1) A
                                           C).                          child of a: (i) Veteran who
                                                                        died of a service-connected
                                                                        disability. . . .'' Paragraph
                                                                        (b) defines the term ``child''
                                                                        as a son or daughter of a
                                                                        veteran as defined in 38 CFR
                                                                        3.807(d).

[[Page 46]]

 
                                                                       Section 21.3023 states that:
                                                                        ``(a) Child; age 18. A child
                                                                        who is eligible for educational
                                                                        assistance and who is also
                                                                        eligible for pension,
                                                                        compensation dependency and
                                                                        indemnity compensation based on
                                                                        school attendance must elect
                                                                        whether he or she will receive
                                                                        educational assistance or
                                                                        pension, compensation or
                                                                        dependency and indemnity
                                                                        compensation. (1) An election
                                                                        of education assistance either
                                                                        before or after the age of 18
                                                                        years is a bar to subsequent
                                                                        payment or increased rates or
                                                                        additional amounts of pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation on
                                                                        account of a child based on
                                                                        school attendance on or after
                                                                        the age of 18 years. . . . (2)
                                                                        Payment of pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation to or on
                                                                        account of a child after his or
                                                                        her 18th birthday does not bar
                                                                        subsequent payments of
                                                                        educational assistance. . . .
                                                                        (b) Child; under 18 or
                                                                        helpless. Educational
                                                                        assistance allowance or special
                                                                        restorative training allowance
                                                                        may generally be paid
                                                                        concurrently with pension,
                                                                        compensation or dependency and
                                                                        indemnity compensation for a
                                                                        child under the age of 18 years
                                                                        or for a helpless child based
                                                                        on the service of one or more
                                                                        parents. Where, however,
                                                                        entitlement is based on the
                                                                        death of more than one parent
                                                                        in the same parental line,
                                                                        concurrent payments in two or
                                                                        more cases may not be
                                                                        authorized if the death of one
                                                                        such parent occurred on or
                                                                        after June 9, 1960. In the
                                                                        latter cases, an election of
                                                                        educational assistance and
                                                                        pension, compensation or
                                                                        dependency and indemnity
                                                                        compensation in one case does
                                                                        not preclude a reelection of
                                                                        benefits before attaining age
                                                                        18 or while helpless based on
                                                                        the service of another parent
                                                                        in the same parental line. . .
                                                                        .''
                                                                       Section 21.3040 sets forth
                                                                        criteria for the commencement
                                                                        and termination of the program
                                                                        of education or special
                                                                        restorative training for an
                                                                        eligible child under 38 U.S.C.
                                                                        Chapter 35. Paragraph (a) of
                                                                        this section provides that a
                                                                        program of education or special
                                                                        restorative training may not be
                                                                        afforded prior to the eligible
                                                                        persons' 18th birthday or the
                                                                        completion of secondary
                                                                        schooling, whichever is
                                                                        earlier, unless it is
                                                                        determined through counseling
                                                                        that the best interests of the
                                                                        eligible person will be served
                                                                        by entering training at an
                                                                        earlier date and the eligible
                                                                        person has passed: (1)
                                                                        Compulsory school attendance
                                                                        age under State law; or (2) his
                                                                        or her 14th birthday and due to
                                                                        physical or mental handicap may
                                                                        benefit by special restorative
                                                                        or specialized vocational
                                                                        training. Paragraph (c) of this
                                                                        section provides that no person
                                                                        is eligible for educational
                                                                        assistance who reached his or
                                                                        her 26th birthday on or before
                                                                        the effective date of a finding
                                                                        of permanent total service-
                                                                        connected disability, or on or
                                                                        before the date the veteran's
                                                                        death occurred, or on or before
                                                                        the 91st day of listing by the
                                                                        Secretary concerned of the
                                                                        member of the Armed Forces or
                                                                        whose service eligibility is
                                                                        claimed as being is one of the
                                                                        missing categories identified
                                                                        in 38 CFR 21.3021(a) (1)(iii)
                                                                        and (3)(ii). Paragraph (d)
                                                                        provides that no person is
                                                                        eligible for educational
                                                                        assistance beyond his or her
                                                                        31st birthday, except in
                                                                        certain exceptional cases.

[[Page 47]]

 
                                                                       Section 21.3041 sets forth
                                                                        periods of eligibility for an
                                                                        eligible child. Paragraph (a)
                                                                        of this section provides the
                                                                        basic beginning date for the
                                                                        educational assistance as the
                                                                        person's 18th birthday or
                                                                        successful completion of
                                                                        secondary schooling, whichever
                                                                        occurs first. Paragraph (b)
                                                                        authorizes certain exceptions
                                                                        to the basic beginning date,
                                                                        if: (1) A person has passed
                                                                        compulsory school attendance
                                                                        under applicable State law, or
                                                                        (2) has passed his or her 14th
                                                                        birthday and has a physical or
                                                                        mental handicap. Paragraph (c)
                                                                        provides the basic ending date
                                                                        as the person's 26th birthday.
                                                                        Paragraphs (d) and (e) set
                                                                        forth criteria for modifying or
                                                                        extending the ending date.
                                          Administration of            Section 21.3300 provides that VA
                                           Educational Benefits; 38     may prescribe special
                                           U.S.C. Chapter 34, 35, and   restorative training for the
                                           36 (38 CFR part 21,          purpose of enabling an eligible
                                           subpart D).                  child to pursue a program of
                                                                        education, special vocational
                                                                        program, or other appropriate
                                                                        goal, where needed to overcome
                                                                        or lessen the effects of a
                                                                        physical or mental disability.
                                                                       Section 21.4102(a) requires VA
                                                                        to provide counseling for the
                                                                        purpose set forth in 38 CFR
                                                                        21.4100 to an eligible child
                                                                        when: (1) The eligible child
                                                                        may require specialized
                                                                        vocational or special
                                                                        restorative training, or (2)
                                                                        the eligible child has reached
                                                                        compulsory school attendance
                                                                        age under State law, but has
                                                                        neither reached his or her 18th
                                                                        birthday nor completed
                                                                        secondary schooling, or (3) if
                                                                        requested by the eligible child
                                                                        or his or her parent or
                                                                        guardian for the purpose of
                                                                        preparing an educational plan.
                                                                       Section 21.4139(b) provides that
                                                                        VA will make payment of
                                                                        educational assistance under 38
                                                                        U.S.C. Chapter 35 to the
                                                                        eligible person if: (1) He or
                                                                        she has attained majority and
                                                                        has no known legal disability
                                                                        or (2) is in the eligible
                                                                        person's best interests, and
                                                                        there is no reason not to
                                                                        designate the eligible person
                                                                        as payee. VA may pay minors
                                                                        under this provision.
                                                                       Section 21.4141 provides that
                                                                        payment of educational
                                                                        assistance allowance under 38
                                                                        U.S.C. Chapter 35 will be
                                                                        subject to offsets of amounts
                                                                        of pension, compensation, or
                                                                        dependency and indemnity
                                                                        compensation paid over the same
                                                                        period on behalf of a child
                                                                        based on school attendance.
VA Hospital, Domiciliary or Nursing Home  Eligiblity for hospital,     Section 17.47(e) provides that     64.009
 Care.                                     domiciliary or nursing       within the limits of VA           64.010
                                           home care of persons         facilities, hospital or nursing   64.015
                                           discharged or released       home care may be provided to      64.016
                                           from active military,        any veteran with a nonservice-
                                           naval, or air service (38    connected disability if such a
                                           CFR 17.47).                  veteran is 65 years of age or
                                                                        older.

[[Page 48]]

 
Civilian Health and Medical Program of    Medical Care for Survivors   Section 17.54 states that          64.009
 the Department of Veterans Affairs        and Dependents of Certain    medical care may be provided
 (CHAMPA).                                 Veterans (38 CFR 17.54).     for: ``(1) The spouse or child
                                                                        of a veteran who has a total
                                                                        disability, permanent in
                                                                        nature, resulting from a
                                                                        service-connected disability,
                                                                        and (2) the surviving spouse or
                                                                        child of a veteran who--(a)
                                                                        died as a result of a service-
                                                                        connected disability, or (b) at
                                                                        the time of death had a total
                                                                        disability, permanent in nature
                                                                        resulting from a service-
                                                                        connected disability and--(3)
                                                                        the surviving spouse or child
                                                                        of a person who died in the
                                                                        active military, naval or air
                                                                        service . . . Who are not
                                                                        otherwise eligible for medical
                                                                        care as beneficiaries of the
                                                                        Armed Forces under the
                                                                        provisions of Chapter 55 of
                                                                        Title 10, United States Code
                                                                        (CHAMPUS) . . . and (4) An
                                                                        eligible child who is pursuing
                                                                        a full-time course of
                                                                        instruction approved under 38
                                                                        U.S.C. Chapter 36, and who
                                                                        incurs a disabling illness or
                                                                        injury while pursuing such
                                                                        course; . . . shall remain
                                                                        eligible for medical care
                                                                        until: (a) The end of the 6-
                                                                        month period beginning on the
                                                                        date the disability is removed,
                                                                        or (b) the end of the 2-year
                                                                        period beginning on the date of
                                                                        the onset of the disability; or
                                                                        (c) the 23d birthday of the
                                                                        child, whichever occurs first.
                                                                        . . .''
Veterans' Educational Assistance........  Administration of            Section 21.4135(d) sets forth
                                           Educational Benefits; 38     the following dates for the
                                           U.S.C. Chapters 34, 35,      discontinuance of the
                                           and 36 (38 CFR part 21,      educational assistance
                                           subpart D).                  allowance provided for a
                                                                        dependent child, under Chapter
                                                                        34 of Title 38: ``. . . (1)
                                                                        Last day of the in calendar
                                                                        year in which marriage occurred
                                                                        unless discontinuance is
                                                                        required at an earlier date
                                                                        under other provisions. (2) Age
                                                                        18. Day preceding 18th
                                                                        birthday. (3) School
                                                                        attendance. Last day of month
                                                                        in which 23rd birthday,
                                                                        whichever is earlier. (4)
                                                                        Helplessness ceased. Last day
                                                                        of month school attendance
                                                                        ceased or day preceding
                                                                        following 60 days after notice
                                                                        to payee that helplessness has
                                                                        ceased.''
                                                                       Section 21.4136 sets forth
                                                                        monthly rates for the payment
                                                                        of educational assistance
                                                                        allowance under 38 U.S.C.
                                                                        Chapter 34. Paragraph (f)
                                                                        defines the term ``dependent''
                                                                        as a spouse, child or dependent
                                                                        parent who meets the
                                                                        definitions of relationship
                                                                        specified in 38 CFR 3.50, 3.51,
                                                                        3.57 and 3.59.
----------------------------------------------------------------------------------------------------------------



PART 18a_DELEGATION OF RESPONSIBILITY IN CONNECTION WITH TITLE VI, CIVIL 
RIGHTS ACT OF 1964--Table of Contents




Sec.
18a.1 Delegations of responsibility between the Secretary of Veterans 
          Affairs and the Secretary, Department of Health and Human 
          Services, and the Secretary, Department of Education.
18a.2 Delegation to the Under Secretary for Benefits.
18a.3 Delegation to the Chief Medical Director.
18a.4 Duties of the Director, Contract Compliance Service.
18a.5 Delegation to the General Counsel.

    Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and 
appendix A, part 18.



Sec. 18a.1  Delegations of responsibility between the Secretary of Veterans 

Affairs and the Secretary, Department of Health and Human Services, and the 
          Secretary, Department of Education.

    (a) Authority has been delegated to the Secretary of Veterans 
Affairs by the Secretary, Department of Health and Human Services, and 
the Secretary, Department of Education to perform responsibilities of 
those Departments and of the responsible Departmental officials under 
Title VI of

[[Page 49]]

the Civil Rights Act of 1964 and the Departments' regulations issued 
thereunder (45 CFR part 80 and 34 CFR part 100) with respect to: 
Proprietary (i.e., other than public or nonprofit) educational 
institutions, except if operated by a hospital; and post secondary, 
nonprofit, educational institutions other than colleges and 
universities, except if operated by a college or university, a hospital, 
or a unit of State or local government (i.e., those operating such 
institutions as an elementary or secondary school, an area vocational 
school, a school for the handicapped, etc.)
    (1) The compliance responsibilities so delegated include:
    (i) Soliciting, receiving, and determining the adequacy of 
assurances of compliance under 45 CFR 80.4 and 34 CFR 100.4;
    (ii) All actions under 45 CFR 80.6 including mailing, receiving, and 
evaluating compliance reports under Sec. 80.6(b) and 34 CFR 100.6(b); 
and
    (iii) All other actions related to securing voluntary compliance, or 
related to investigations, compliance reviews, complaints, 
determinations of apparent failure to comply, and resolutions of matters 
by informal means.
    (2) The Department of Health and Human Services and the Department 
of Education specifically reserve to themselves the responsibilities for 
the effectuation of compliance under 45 CFR 80.8, 80.9, 80.10 and 34 CFR 
100.8, 100.9 and 100.10.
    (b) Authority has been delegated to the Secretary, Department of 
Health and Human Services and the Secretary, Department of Education, to 
perform responsibilities of the Department of Veterans Affairs and of 
the responsible Department of Veterans Affairs official under Title VI 
of the Civil Rights Act of 1964 and the Department of Veterans Affairs 
regulations issued thereunder (part 18 of this chapter) with respect to 
institutions of higher learning, including post-high school institutions 
which offer nondegree courses for which credit is given and which would 
be accepted on transfer by a degree-granting institution toward a 
baccalaureate or higher degree; hospitals and other health facilities 
and elementary and secondary schools and school systems including, but 
not limited to, their activities in connection with providing or seeking 
approval to provide vocational rehabilitation to eligible persons under 
Chapter 31 of Title 38 U.S.C., or education or training to eligible 
persons under Chapters 34, 35, or 36 of Title 38 U.S.C.
    (1) The compliance responsibilities so delegated include:
    (i) Soliciting, receiving, and determining the adequacy of 
assurances of compliance under Sec. 18.4 of this chapter;
    (ii) Mailing, receiving, and evaluating compliance reports under 
Sec. 18.6(b) of this chapter; and
    (iii) All other actions related to securing voluntary compliance or 
related investigations, compliance reviews, complaints, determinations 
of apparent failure to comply and resolutions of matters by informal 
means.
    (2) The Department of Veterans Affairs specifically reserves to 
itself responsibilities for effectuation of compliance under Sec. Sec. 
18.8, 18.9, and 18.10 of this chapter. Not included in the delegation to 
the Secretary, Department of Health and Human Services and the 
Secretary, Department of Education and specifically reserved to the 
Department of Veterans Affairs is the exercise of compliance 
responsibilities with respect to:
    (i) Postsecondary schools which do not offer a program or courses 
leading, or creditable, towards the granting of at least a bachelor's 
degree, or its equivalent;
    (ii) Privately-owned and operated proprietary technical, vocational, 
and other private schools at the elementary or secondary level; and
    (iii) Those institutions of higher learning and elementary and 
secondary schools and school systems which, as of January 3, 1969, have 
already been subjected to formal noncompliance proceedings by the 
Department of Health and Human Services or the Department of Education 
and have had their right to receive Federal financial assistance from 
that agency terminated for noncompliance with Title VI of the Civil 
Rights Act of 1964.

The Department of Veterans Affairs also retains the right to exercise 
delegated compliance responsibilities itself in special cases with the 
agreement of

[[Page 50]]

the appropriate official in the Department of Health and Human Services 
or the Department of Education.
    (c) Any institution of higher learning or a hospital or other health 
facility which is listed by the Department of Health and Human Services 
or the Department of Education as having filed an assurance of 
compliance will be accepted as having met the requirements of the law 
for the purpose of payment under 38 U.S.C. Chapters 31, 34, 35, or 36 
and 38 U.S.C. sections 1741, 8131-8137 and 8155.
    (d) If the Department of Health and Human Services or the Department 
of Education finds that a school, hospital or other health facility 
which has signed an assurance of compliance is apparently in 
noncompliance, action will be initiated by that Department to obtain 
compliance by voluntary means. If voluntary compliance is not achieved, 
the Department of Veterans Affairs will join in subsequent proceedings.
    (e) An institution which is on the Department of Health and Human 
Services or the Department of Education list of noncomplying 
institutions will be considered to be in a status of compliance for 
Department of Veterans Affairs purposes if an assurance of compliance is 
filed with the Department of Veterans Affairs and actual compliance is 
confirmed. Certificates of eligibility may be issued and enrollments 
approved and other appropriate payments made until such time as the 
Department of Veterans Affairs has made an independent determination 
that the institution is not in compliance.

[35 FR 10759, July 2, 1970, as amended at 51 FR 10385, Mar. 26, 1986]



Sec. 18a.2  Delegation to the Under Secretary for Benefits.

    The Under Secretary for Benefits is delegated responsibility for 
obtaining evidence of voluntary compliance for vocational 
rehabilitation, education, and special restorative training to implement 
Title VI, Civil Rights Act of 1964. Authority is delegated to the Under 
Secretary for Benefits and designee to take any necessary action as to 
programs of vocational rehabilitation, education, or special restorative 
training under 38 U.S.C. Chapters 31, 34, 35, and 36 for the purpose of 
securing evidence of voluntary compliance directly or through the 
agencies to whom the Secretary of Veterans Affairs has delegated 
responsibility for various schools or training establishments to 
implement part 18 of this chapter. The Under Secretary for Benefits also 
is delegated responsibility for obtaining evidence of voluntary 
compliance from recognized national organizations whose representatives 
are afforded space and office facilities in field facilities under 
jurisdiction of the Under Secretary for Benefits.

[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54 
FR 34984, Aug. 23, 1989]



Sec. 18a.3  Delegation to the Chief Medical Director.

    The Chief Medical Director is delegated responsibility for obtaining 
evidence of voluntary compliance implementing the provisions of Title 
VI, Civil Rights Act of 1964, in connection with payments to State 
homes, with State home facilities for furnishing nursing home care, and 
from recognized national organizations whose representatives are 
afforded space and office facilities in field facilities under 
jurisdiction of the Chief Medical Director.

[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18a.4  Duties of the Director, Contract Compliance Service.

    Upon referral by the Chief Medical Director or the Under Secretary 
for Benefits, the Director, Contract Compliance Service will:
    (a) Investigate and process all complaints arising under Title VI of 
the Civil Rights Act of 1964;
    (b) Conduct periodic audits, reviews and evaluations;
    (c) Attempt to secure voluntary compliance by conciliatory or other 
informal means whenever investigation of a complaint, compliance review, 
failure to furnish assurance of compliance, or other source indicates 
noncompliance with Title VI; and

report to the Chief Medical Director or the Under Secretary for 
Benefits, whichever is appropriate, the results of

[[Page 51]]

investigations, audits, reviews and evaluations or the results of 
attempts to secure voluntary compliance.

[35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18a.5  Delegation to the General Counsel.

    The General Counsel is delegated the responsibility, upon receipt of 
information from the Under Secretary for Benefits, the Chief Medical 
Director, or the designee of either of them, that compliance cannot be 
secured by voluntary means, of forwarding to the recipient or other 
person the notice required by Sec. 18.9(a) of this chapter, and also is 
delegated the responsibility of representing the agency in all 
proceedings resulting from such notice.

[35 FR 10759, July 2, 1970]



PART 18b_PRACTICE AND PROCEDURE UNDER TITLE VI OF THE CIVIL RIGHTS ACT 
OF 1964 AND PART 18 OF THIS CHAPTER--Table of Contents




                              General Rules

Sec.
18b.1 Scope of rules.
18b.2 Reviewing authority.
18b.9 Definitions.
18b.10 Records to be public.
18b.11 Use of number.
18b.12 Suspension of rules.

                         Appearance and Practice

18b.13 Appearance.
18b.14 Authority for representation.
18b.15 Exclusion from hearing for misconduct.

                                 Parties

18b.16 Parties.
18b.17 Amici curiae.
18b.18 Complainants not parties.

                                Documents

18b.20 Form of documents to be filed.
18b.21 Signature of documents.
18b.22 Filing and service.
18b.23 Service; how made.
18b.24 Date of service.
18b.25 Certificate of service.

                                  Time

18b.26 Computation.
18b.27 Extension of time or postponement.
18b.28 Reduction of time to file documents.

                       Proceedings Before Hearing

18b.30 Notice of hearing or opportunity for hearing.
18b.31 Answer to notice.
18b.32 Amendment of notice or answer.
18b.33 Request for hearing.
18b.34 Consolidation.
18b.35 Motions.
18b.36 Responses to motions and petitions.
18b.37 Disposition of motions and petitions.

            Responsibilities and Duties of Presiding Officer

18b.40 Who presides.
18b.41 Designation of an administrative law judge.
18b.42 Authority of presiding officer.

                           Hearing Procedures

18b.50 Statements of position and trial briefs.
18b.51 Evidentiary purpose.
18b.52 Testimony.
18b.53 Exhibits.
18b.54 Affidavits.
18b.55 Depositions.
18b.56 Admissions as to facts and documents.
18b.57 Evidence.
18b.58 Cross-examination.
18b.59 Unsponsored written material.
18b.60 Objections.
18b.61 Exceptions to rulings of presiding officer unnecessary.
18b.62 Official notice.
18b.63 Public document items.
18b.64 Offer of proof.
18b.65 Appeals from ruling of presiding officer.

                               The Record

18b.66 Official transcript.
18b.67 Record for decision.

                    Posthearing Procedures; Decisions

18b.70 Posthearing briefs; proposed findings and conclusions.
18b.71 Decisions following hearing.
18b.72 Exceptions to initial or recommended decisions.
18b.73 Final decisions.
18b.74 Oral argument to the reviewing authority.
18b.75 Review by the Secretary.
18b.76 Service on amici curiae.

                     Posthearing Department Actions

18b.77 Final Department action.

                     Judicial Standards of Practice

18b.90 Conduct.
18b.91 Improper conduct.
18b.92 Ex parte communications.
18b.93 Expeditious treatment.
18b.94 Matters not prohibited.

[[Page 52]]

18b.95 Filing of ex parte communications.

    Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and 
appendix A, part 18.

    Source: 35 FR 10760, July 2, 1970, unless otherwise noted.

                              General Rules



Sec. 18b.1  Scope of rules.

    The rules of procedure in this part supplement Sec. Sec. 18.9 and 
18.10 of this chapter and govern the practice for hearings, decisions, 
and administrative review conducted by the Department of Veterans 
Affairs pursuant to Title VI of the Civil Rights Act of 1964 (section 
602, 78 Stat. 252) and part 18 of this chapter.



Sec. 18b.2  Reviewing authority.

    The term reviewing authority means the Secretary of Veterans 
Affairs, or any person or persons acting pursuant to authority delegated 
by the Secretary to carry out responsibility under Sec. 18.10 of this 
chapter. The term includes the Secretary with respect to action under 
Sec. 18b.75.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.9  Definitions.

    The definitions contained in Sec. 18.13 of this chapter apply to 
this part, unless the context otherwise requires.



Sec. 18b.10  Records to be public.

    All pleadings, correspondence, exhibits, transcripts of testimony, 
exceptions, briefs, decisions, and other documents filed in the docket 
in any proceeding may be inspected and copied in the office of the Civil 
Rights hearing clerk. Inquiries may be made at the Department of 
Veterans Affairs Central Office, 810 Vermont Avenue NW., Washington, DC 
20420.



Sec. 18b.11  Use of number.

    As used in this part, words importing the singular number may extend 
and be applied to several persons or things, and vice versa.

[51 FR 10386, Mar. 26, 1986]



Sec. 18b.12  Suspension of rules.

    Upon notice to all parties, the reviewing authority or the presiding 
officer, with respect to matters pending before them, may modify or 
waive any rule upon determination that no party will be unduly 
prejudiced and the ends of justice will thereby be served.

                         Appearance and Practice



Sec. 18b.13  Appearance.

    A party may appear in person or by counsel and participate fully in 
any proceeding. A State agency or a corporation may appear by any of its 
officers or by any employee it authorizes to appear on its behalf. 
Counsel must be members in good standing of the bar of a State, 
territory, or possession of the United States or of the District of 
Columbia or the Commonwealth of Puerto Rico.



Sec. 18b.14  Authority for representation.

    Any individual acting in any proceeding may be required to show 
authority to act in such capacity.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.15  Exclusion from hearing for misconduct.

    Disrespectful, disorderly, or contumacious language or contemptuous 
conduct, refusal to comply with directions, or continued use of dilatory 
tactics by any person at any hearing before a presiding officer shall 
constitute grounds for immediate exclusion of such person from the 
hearing by the presiding officer.

                                 Parties



Sec. 18b.16  Parties.

    The term party shall include an applicant or recipient or other 
person to whom a notice of hearing or opportunity for hearing has been 
mailed naming that person as respondent. The Department shall also be 
deemed a party to all proceedings and shall be represented by the 
General Counsel.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54 
FR 34984, Aug. 23, 1989]

[[Page 53]]



Sec. 18b.17  Amici curiae.

    (a) Any interested person or organization may file a petition to 
participate in a proceeding as an amicus curiae. Such petition shall be 
filed prior to the prehearing conference, or if none is held, before the 
commencement of the hearing, unless the petitioner shows good cause for 
filing the petition later. The presiding officer may grant the petition 
if the officer finds that the petitioner has a legitimate interest in 
the proceedings, that such participation will not unduly delay the 
outcome, and may contribute materially to the proper disposition 
thereof. An amicus curiae is not a party and may not introduce evidence 
at a hearing.
    (b) An amicus curiae may submit a statement of position to the 
presiding officer prior to the beginning of a hearing, and shall serve a 
copy on each party. The amicus curiae may submit a brief on each 
occasion a decision is to be made or a prior decision is subject to 
review. The brief shall be filed and served on each party within the 
time limits applicable to the party whose position the amicus curiae 
deems to support; or if the amicus curiae does not deem to support the 
position of any party, within the longest time limit applicable to any 
party at that particular stage of the proceedings.
    (c) When all parties have completed their initial examination of a 
witness, any amicus curiae may request the presiding officer to propound 
specific questions to the witness. The presiding officer, in the 
officer's discretion, may grant any such request if the officer believes 
the proposed additional testimony may assist materially in elucidating 
factual matters at issue between the parties and will not expand the 
issues.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.18  Complainants not parties.

    A person submitting a complaint pursuant to Sec. 18.7(b) of this 
chapter is not a party to the proceedings governed by this part, but may 
petition, after proceedings are initiated, to become an amicus curiae.

                                Documents



Sec. 18b.20  Form of documents to be filed.

    Documents to be filed shall be dated, the original signed in ink, 
shall show the docket description and title of the proceeding, and shall 
show the title, if any, and address of the signatory. Copies need not be 
signed but the name of the person signing the original shall be 
reproduced. Documents shall be legible and shall not be more than 8\1/2\ 
inches wide and 12 inches long.



Sec. 18b.21  Signature of documents.

    The signature of a party, authorized officer, employee, or attorney 
constitutes a certificate that one of them has read the document, that 
to the best of that person's knowledge, information, and belief there is 
good ground to support it, and that it is not interposed for delay. If a 
document is not signed or is signed with intent to defeat the purpose of 
this section, it may be stricken as sham and false and the proceeding 
may proceed as though the document had not been filed. Similar action 
may be taken if scandalous or indecent matter is inserted.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.22  Filing and service.

    All notices by a Department of Veterans Affairs official, and all 
written motions, requests, petitions, memoranda, pleadings, exceptions, 
briefs, decisions, and correspondence to a Department of Veterans 
Affairs official from a party, or vice versa, relating to a proceeding 
after its commencement shall be filed and served on all parties. Parties 
shall supply the original and two copies of documents submitted for 
filing. Filings shall be made with the Civil Rights hearing clerk at the 
address stated in the notice of hearing or notice of opportunity for 
hearing, during regular business hours. Regular business hours are every 
Monday through Friday (legal holidays in the District of Columbia 
excepted) from 8 a.m. to 4:30 p.m., eastern standard or daylight saving 
time, whichever is effective in the District of Columbia at the time. 
Originals only of exhibits and transcripts of testimony need be filed.

[[Page 54]]

For requirements of service on amici curiae, see Sec. 18b.76.



Sec. 18b.23  Service; how made.

    Service shall be made by personal delivery of one copy to each 
person to be served or by mailing by first-class mail, properly 
addressed with postage prepaid. When a party or amicus has appeared by 
attorney or other representative, service upon such attorney or 
representative, will be deemed service upon the party or amicus. 
Documents served by mail preferably should be mailed in sufficient time 
to reach the addressee by the date on which the original is due to be 
filed, and should be airmailed if the addressee is more than 300 miles 
distant.



Sec. 18b.24  Date of service.

    The date of service shall be the day when the matter is deposited in 
the U.S. mail or is delivered in person, except that the date of service 
of the initial notice of hearing or opportunity for hearing shall be the 
date of its delivery, or of its attempted delivery if refused.



Sec. 18b.25  Certificate of service.

    The original of every document filed and required to be served upon 
parties to a proceeding shall be endorsed with a certificate of service 
signed by the party making service or by the party's attorney or 
representative, stating that such service has been made, the date of 
service, and the manner of service, whether by mail or personal 
delivery.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

                                  Time



Sec. 18b.26  Computation.

    In computing any period of time under the rules in this part or in 
an order issued hereunder, the time begins with the day following the 
act, event, or default, and includes the last day of the period, unless 
it is a Saturday, Sunday, or legal holiday observed in the District of 
Columbia, in which event it includes the next following business day. 
When the period of time prescribed or allowed is less than 7 days, 
intermediate Saturdays, Sundays, and legal holidays shall be excluded 
from the computation.



Sec. 18b.27  Extension of time or postponement.

    Requests for extension of time should be served on all parties and 
should set forth the reasons for the application. Applications may be 
granted upon a showing of good cause by the applicant. From the 
designation of a presiding officer until the issuance of a decision such 
requests should be addressed to the presiding officer. Answers to such 
requests are permitted, if made promptly.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.28  Reduction of time to file documents.

    For good cause, the reviewing authority or the presiding officer, 
with respect to matters pending before them, may reduce any time limit 
prescribed by the rules in this part, except as provided by law or in 
part 18 of this chapter.

                       Proceedings Before Hearing



Sec. 18b.30  Notice of hearing or opportunity for hearing.

    Proceedings are commenced by mailing a notice of hearing or 
opportunity for hearing to an affected applicant or recipient, pursuant 
to Sec. Sec. 18.9 and 18a.5 of this chapter.



Sec. 18b.31  Answer to notice.

    The respondent, applicant or recipient may file an answer to the 
notice within 20 days after service thereof. Answers shall admit or deny 
specifically and in detail each allegation of the notice, unless the 
respondent party is without knowledge, in which case the answer should 
so state, and the statement will be deemed a denial. Allegations of fact 
in the notice not denied or controverted by answer shall be deemed 
admitted. Matters alleged as affirmative defenses shall be separately 
stated and numbered. Failure of the respondent to file an answer within 
the 20-day period following service of the notice may be deemed an 
admission of

[[Page 55]]

all matters of fact recited in the notice.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.32  Amendment of notice or answer.

    The General Counsel may amend the notice of hearing or opportunity 
for hearing once as a matter of course before an answer thereto is 
served, and each respondent may amend the answer once as a matter of 
course not later than 10 days before the date fixed for hearing but in 
no event later than 20 days from the date of service of the original 
answer. Otherwise a notice or answer may be amended only by leave of the 
presiding officer. A respondent shall file the answer to an amended 
notice within the time remaining for filing the answer to the original 
notice or within 10 days after service of the amended notice, whichever 
period may be the longer, unless the presiding officer otherwise orders.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.33  Request for hearing.

    Within 20 days after service of a notice of opportunity for hearing 
which does not fix a date for hearing the respondent, either in the 
answer or in a separate document, may request a hearing. Failure of the 
respondent to request a hearing shall be deemed a waiver of the right to 
a hearing and to constitute consent to the making of a decision on the 
basis of such information as is available.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.34  Consolidation.

    The reviewing authority may provide for proceedings in the 
Department of Veterans Affairs to be joined or consolidated for hearing 
with proceedings in other Federal departments or agencies, by agreement 
with such other departments or agencies. All parties to any proceeding 
consolidated subsequent to service of the notice of hearing or 
opportunity for hearing shall be served with notice of such 
consolidation.



Sec. 18b.35  Motions.

    Motions and petitions shall state the relief sought, the authority 
relied upon, and the facts alleged. If made before or after the hearing, 
these matters shall be in writing. If made at the hearing, they may be 
stated orally; but the presiding officer may require that they be 
reduced to writing and filed and served on all parties in the same 
manner as a formal motion. Motions, answers, and replies shall be 
addressed to the presiding officer, if the case is pending before the 
officer. A repetitious motion will not be entertained.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.36  Responses to motions and petitions.

    Within 8 days after a written motion or petition is served, or such 
other period as the reviewing authority or the presiding officer may 
fix, any party may file a response thereto. An immediate oral response 
may be made to an oral motion.



Sec. 18b.37  Disposition of motions and petitions.

    The reviewing authority or the presiding officer may not sustain or 
grant a written motion or petition prior to expiration of the time for 
filing responses thereto, but may overrule or deny such motion or 
petition without awaiting response: Provided, however, That prehearing 
conferences, hearings and decisions need not be delayed pending 
disposition of motions or petitions. Oral motions and petitions may be 
ruled on immediately. Motions and petitions submitted to the reviewing 
authority or the presiding officer, respectively, and not disposed of in 
separate rulings or in their respective decisions will be deemed denied. 
Oral arguments shall not be held on written motions or petitions unless 
the presiding officer in the officer's discretion expressly so orders.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

[[Page 56]]

            Responsibilities and Duties of Presiding Officer



Sec. 18b.40  Who presides.

    An administrative law judge assigned under 5 U.S.C. 3105 or 3344 
(formerly section 11 of the Administrative Procedure Act) shall preside 
over the taking of evidence in any hearing to which these rules or 
procedure apply.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.41  Designation of an administrative law judge.

    The designation of the administrative law judge as presiding officer 
shall be in writing, and shall specify whether the administrative law 
judge is to make an initial decision or to certify the entire record 
including recommended findings and proposed decision to the reviewing 
authority, and may also fix the time and place of hearing. A copy of 
such order shall be served on all parties. After service of an order 
designating an administrative law judge to preside, and until such 
administrative law judge makes a decision, motions and petitions shall 
be submitted to the administrative law judge. In the case of the death, 
illness, disqualification or unavailability of the designated 
administrative law judge, another administrative law judge may be 
designated to take that person's place.

[51 FR 10386, Mar. 26, 1986]



Sec. 18b.42  Authority of presiding officer.

    The presiding officer shall have the duty to conduct a fair hearing, 
to take all necessary action to avoid delay, and to maintain order. The 
presiding officer shall have all powers necessary to these ends, 
including (but not limited to) the power to:
    (a) Arrange and issue notice of the date, time, and place of 
hearings, or, upon due notice to the parties, to change the date, time, 
and place of hearings previously set.
    (b) Hold conferences to settle, simplify, or fix the issues in a 
proceeding, or to consider other matters that may aid in the expeditious 
disposition of the proceeding.
    (c) Require parties and amici curiae to state their position with 
respect to the various issues in the proceeding.
    (d) Administer oaths and affirmations.
    (e) Rule on motions, and other procedural items on matters pending 
before the presiding officer.
    (f) Regulate the course of the hearing and conduct of counsel 
therein.
    (g) Examine witnesses and direct witnesses to testify.
    (h) Receive, rule on, exclude or limit evidence.
    (i) Fix the time for filing motions, petitions, briefs, or other 
items in matters pending before the presiding officer.
    (j) Issue initial or recommended decisions.
    (k) Take any action authorized by the rules in this part, or in 
conformance with the provisions of 5 U.S.C. 551-559 (the Administrative 
Procedure Act).

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

                           Hearing Procedures



Sec. 18b.50  Statements of position and trial briefs.

    The presiding officer may require parties and amici curiae to file 
written statements of position prior to the beginning of a hearing. The 
presiding officer may also require the parties to submit trial briefs.



Sec. 18b.51  Evidentiary purpose.

    (a) The hearing is directed to receiving factual evidence and expert 
opinion testimony related to the issues in the proceeding. Argument will 
not be received in evidence; rather it should be presented in 
statements, memoranda, or briefs, as determined by the presiding 
officer. Brief opening statements, which shall be limited to statement 
of the party's position and what the party intends to prove, may be made 
at hearings.
    (b) Hearings for the reception of evidence will be held only in 
cases where issues of fact must be resolved in order to determine 
whether the respondent has failed to comply with one or more applicable 
requirements of part 18 of

[[Page 57]]

this chapter. In any case where it appears from the respondent's answer 
to the notice of hearing or opportunity for hearing, from failure timely 
to answer, or from admissions or stipulations in the record, that there 
are no matters of material fact in dispute, the reviewing authority or 
presiding officer may enter an order so finding, vacating the hearing 
date if one has been set, and fixing the time for filing briefs under 
Sec. 18b.70. Thereafter the proceedings shall go to conclusion in 
accordance with Sec. Sec. 18b.70 through 18b.76. The presiding officer 
may allow an appeal from such order in accordance with Sec. 18b.65.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.52  Testimony.

    Testimony shall be given orally under oath or affirmation by 
witnesses at the hearing; but the presiding officer, in the officer's 
discretion, may require or permit that the direct testimony of any 
witness be prepared in writing and served on all parties in advance of 
the hearing. Such testimony may be adopted by the witness at the 
hearing, and filed as part of the record thereof. Unless authorized by 
the presiding officer, witnesses will not be permitted to read prepared 
testimony into the record. Except as provided in Sec. Sec. 18b.54 and 
18b.55, witnesses shall be available at the hearing for cross-
examination.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.53  Exhibits.

    Proposed exhibits shall be exchanged at the prehearing conference, 
or otherwise prior to the hearing if the presiding officer so requires. 
Proposed exhibits not so exchanged may be denied admission as evidence. 
The authenticity of all proposed exhibits exchanged prior to hearing 
will be deemed admitted unless written objection thereto is filed prior 
to the hearing or unless good cause is shown at the hearing for failure 
to file such written objection.



Sec. 18b.54  Affidavits.

    An affidavit is not inadmissible as such. Unless the presiding 
officer fixes other time periods affidavits shall be filed and served on 
the parties not later than 15 days prior to the hearing; and not less 
than 7 days prior to hearing a party may file and serve written 
objection to any affidavit on the ground that it is believed necessary 
to test the truth of assertions therein at hearing. In such event the 
assertions objected to will not be received in evidence unless the 
affiant is made available for cross-examination, or the presiding 
officer determines that cross-examination is not necessary for the full 
and true disclosure of facts referred to in such assertions. 
Notwithstanding any objection, however, affidavits may be considered in 
the case of any respondent who waives a hearing.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.55  Depositions.

    Upon such terms as may be just, for the convenience of the parties 
or of the Department of Veterans Affairs, the presiding officer may 
authorize or direct the testimony of any witness to be taken by 
deposition.



Sec. 18b.56  Admissions as to facts and documents.

    Not later than 15 days prior to the scheduled date of the hearing 
except for good cause shown or prior to such earlier date as the 
presiding officer may order, any party may serve upon an opposing party 
a written request for the admission of the genuineness and authenticity 
of any relevant documents described in and exhibited with the request, 
or for the admission of the truth of any relevant matters of fact stated 
in the request. Each of the matters of which an admission is requested 
shall be deemed admitted, unless within a period designated in the 
request (not less than 10 days after service thereof, or within such 
further time as the presiding officer or the reviewing authority if no 
presiding officer has yet been designated may allow upon motion and 
notice) the party to whom the

[[Page 58]]

request is directed serves upon the requesting party a sworn statement 
either denying specifically the matters of which an admission is 
requested or setting forth in detail the reasons why the party cannot 
truthfully either admit or deny such matters. Copies of requests for 
admission and answers thereto shall be served on all parties. Any 
admission made by a party to such request is only for the purposes of 
the pending proceeding, or any proceeding or action instituted for the 
enforcement of any order entered therein, and shall not constitute an 
admission by the party for any other purpose or be used against the 
party in any other proceeding or action.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.57  Evidence.

    Irrelevant, immaterial, unreliable, and unduly repetitious evidence 
will be excluded.



Sec. 18b.58  Cross-examination.

    A witness may be cross-examined on any matter material to the 
proceeding without regard to the scope of his direct examination.



Sec. 18b.59  Unsponsored written material.

    Letters expressing views or urging action and other unsponsored 
written material regarding matters in issue in a hearing will be placed 
in the correspondence section of the docket of the proceeding. These 
data are not deemed part of the evidence or record in the hearing.



Sec. 18b.60  Objections.

    Objections to evidence shall be timely and briefly state the ground 
relied upon.



Sec. 18b.61  Exceptions to rulings of presiding officer unnecessary.

    Exceptions to rulings of the presiding officer are unnecessary. It 
is sufficient that a party, at the time the ruling of the presiding 
officer is sought, makes known the action which the party desires the 
presiding officer to take, or the party's objection to an action taken, 
and the party's grounds therefor.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.62  Official notice.

    Where official notice is taken or is to be taken of a material fact 
not appearing in the evidence of record, any party, on timely request, 
shall be afforded an opportunity to show the contrary.



Sec. 18b.63  Public document items.

    Whenever there is offered (in whole or in part) a public document, 
such as an official report, decision, opinion, or published scientific 
or economic statistical data issued by any of the executive departments 
(or their subdivisions), legislative agencies or committees, or 
administrative agencies of the Federal Government (including Government-
owned corporations), or a similar document issued by a State or its 
agencies, and such document (or part thereof) has been shown by the 
offeror to be reasonably available to the public, such document need not 
be produced or marked for identification, but may be offered for 
official notice, as a public document item by specifying the document or 
relevant part thereof.



Sec. 18b.64  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the presiding officer rejecting or excluding proffered oral 
testimony shall consist of a statement of the substance of the evidence 
which counsel contends would be adduced by such testimony; and, if the 
excluded evidence consists of evidence in documentary or written form or 
of reference to documents or records, a copy of such evidence shall be 
marked for identification and shall accompany the record as the offer of 
proof.



Sec. 18b.65  Appeals from ruling of presiding officer.

    Rulings of the presiding officer may not be appealed to the 
reviewing authority prior to consideration of the entire proceeding 
except with the consent of the presiding officer and where the reviewing 
authority certifies on

[[Page 59]]

the record or in writing that the allowance of an interlocutory appeal 
is clearly necessary to prevent exceptional delay, expense, or prejudice 
to any party, or substantial detriment to the public interest. If an 
appeal is allowed, any party may file a brief with the reviewing 
authority within such period as the presiding officer directs. No oral 
argument will be heard unless the reviewing authority directs otherwise. 
At any time prior to submission of the proceeding to the reviewing 
authority for decision, the reviewing authority may direct the presiding 
officer to certify any question or the entire record to the reviewing 
authority for decision. Where the entire record is so certified, the 
presiding officer shall recommend a decision.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]

                               The Record



Sec. 18b.66  Official transcript.

    The Department of Veterans Affairs will designate the official 
reporter for all hearings. The official transcripts of testimony taken, 
together with any exhibits, briefs, or memoranda of law filed therewith 
shall be filed with the Department of Veterans Affairs. Transcripts of 
testimony in hearings may be obtained from the official reporter by the 
parties and the public at rates not to exceed the maximum rates fixed by 
the contract between the Department of Veterans Affairs and the 
reporter. Upon notice to all parties, the presiding officer may 
authorize corrections to the transcript which involve matters of 
substance.



Sec. 18b.67  Record for decision.

    The transcript of testimony, exhibits, and all papers and requests 
filed in the proceedings, except the correspondence section of the 
docket, including rulings and any recommended or initial decision shall 
constitute the exclusive record for decision.

                    Posthearing Procedures; Decisions



Sec. 18b.70  Posthearing briefs; proposed findings and conclusions.

    (a) The presiding officer shall fix the time for filing posthearing 
briefs, which may contain proposed findings of fact and conclusions of 
law, and, if permitted, reply briefs.
    (b) Briefs should include a summary of the evidence relied upon 
together with references to exhibit numbers and pages of the transcript, 
with citations of authorities relied upon.



Sec. 18b.71  Decisions following hearing.

    When the time for submission of posthearing briefs has expired, the 
presiding officer shall certify the entire record, including recommended 
findings and proposed decision, to the reviewing authority; or if so 
authorized shall make an initial decision. A copy of the recommended 
findings and proposed decision, or of the initial decision, shall be 
served upon all parties, and amici, if any.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986]



Sec. 18b.72  Exceptions to initial or recommended decisions.

    Within 20 days after the mailing of an initial or recommended 
decision, any party may file exceptions to the decision, stating reasons 
therefor, with the reviewing authority. Any other party may file a 
response thereto within 30 days after the mailing of the decision. Upon 
the filing of such exceptions, the reviewing authority shall review the 
decision and issue its own decision thereon.



Sec. 18b.73  Final decisions.

    (a) Where the hearing is conducted by a hearing examiner who makes 
an initial decision, if no exceptions thereto are filed within the 20-
day period specified in Sec. 18b.72, such decision shall become the 
final decision of the Department of Veterans Affairs, and shall 
constitute ``final agency action'' within the meaning of 5 U.S.C. 704 
(formerly section 10(c) of the Administrative Procedure Act), subject to 
the provisions of Sec. 18b.75.
    (b) Where the hearing is conducted by an administrative law judge 
who makes a recommended decision or upon the filing of exceptions to an 
administrative law judge's initial decision, the reviewing authority 
shall review the recommended or initial decision and shall issue a 
decision thereon, which

[[Page 60]]

shall become the final decision of VA, and shall constitute ``final 
agency action'' within the meaning of 5 U.S.C. 704 (formerly section 
10(c) of the Administrative Procedures Act), subject to the provisions 
of Sec. 18b.75.
    (c) All final decisions shall be promptly served on all parties, and 
amici, if any.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54 
FR 34984, Aug. 23, 1989]



Sec. 18b.74  Oral argument to the reviewing authority.

    (a) If any party desires to argue a case orally on exceptions or 
replies to exceptions to an initial or recommended decision, the party 
shall make such request in writing. The reviewing authority may grant or 
deny such requests in his or her discretion. If granted, the reviewing 
authority will serve notice of oral argument on all parties. The notice 
will set forth the order of presentation, the amount of time allotted, 
and the time and place for argument. The names of persons who will argue 
should be filed with the agency hearing clerk not later than 7 days 
before the date set for oral argument.
    (b) The purpose of oral argument is to emphasize and clarify the 
written argument in the briefs. Reading at length from the brief or 
other texts is not favored. Participants should confine their arguments 
to points of controlling importance and to points upon which exceptions 
have been filed. Consolidations of appearances at oral argument by 
parties taking the same side will permit the parties' interests to be 
presented more effectively in the time allotted.
    (c) Pamphlets, charts, and other written material may be presented 
at oral argument only if such material is limited to facts already in 
the record and is served on all parties and filed with the Department 
hearing clerk at least 7 days before the argument.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986; 54 
FR 34984, Aug. 23, 1989]



Sec. 18b.75  Review by the Secretary.

    Within 20 days after an initial decision becomes a final decision 
pursuant to Sec. 18b.73(a), or within 20 days of the mailing of a final 
decision referred to in Sec. 18b.73(b), as the case may be, a party may 
request the Secretary to review the final decision. The Secretary may 
grant or deny such request, in whole or in part, or serve notice of 
intent to review the decision in whole or in part upon motion. If the 
Secretary grants the requested review, or serves notice of intent to 
review upon motion, each party to the decision shall have 20 days 
following notice of the Secretary's proposed action within which to file 
exceptions to the decision and supporting briefs and memoranda, or 
briefs and memoranda in support of the decision. Failure of a party to 
request review under this section shall not be deemed a failure to 
exhaust administrative remedies for the purpose of obtaining judicial 
review.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]



Sec. 18b.76  Service on amici curiae.

    All briefs, exceptions, memoranda, requests, and decisions referred 
to in Sec. Sec. 18b.70 through 18b.76 shall be served upon amici curiae 
at the same times and in the same manner required for service on 
parties. Any written statements of position and trial briefs required of 
parties under Sec. 18b.50 shall be served on amici.

                     Posthearing Department Actions



Sec. 18b.77  Final Department action.

    (a) The final decision of the administrative law judge or reviewing 
authority that a school or training establishment is not in compliance 
will be referred by the reviewing authority to the Secretary for 
approval as required by Sec. 18.10(e) of this chapter. The finding will 
be accompanied by letters from the Secretary to the House Veterans' 
Affairs Committee and the Senate Veterans Affairs Committee containing a 
full report on the circumstances as required by Sec. 18.8(c) of this 
chapter, the reasons for the proposed action and a statement that the 
proposed action will become the final Department action 30 days after 
the date of the letter.

[[Page 61]]

    (b) A copy of the letters to the congressional committees will be 
sent to all parties to the proceedings.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986; 54 
FR 34984, Aug. 23, 1989]

                     Judicial Standards of Practice



Sec. 18b.90  Conduct.

    Parties and their representatives are expected to conduct themselves 
with honor and dignity and observe judicial standards of practice and 
ethics in all proceedings. They should not indulge in offensive 
personalities, unseemly wrangling, or intemperate accusations or 
characterizations. A representative of any party whether or not a lawyer 
shall observe the traditional responsibilities of lawyers as officers of 
the court and use best efforts to restrain the principal represented 
from improprieties in connection with a proceeding.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]



Sec. 18b.91  Improper conduct.

    With respect to any proceeding it is improper for any interested 
person to attempt to sway the judgment of the reviewing authority by 
undertaking to bring pressure or influence to bear upon the reviewing 
authority or any officer having a responsibility for a decision in the 
proceeding, or decisional staff. It is improper that such interested 
persons or any members of the Department of Veterans Affairs's staff or 
the presiding officer give statements to communications media, by paid 
advertisement or otherwise, designed to influence the judgment of any 
officer having a responsibility for a decision in the proceeding, or 
decisional staff. It is improper for any person to solicit 
communications to any such officer, or decisional staff, other than 
proper communications by parties or amici curiae.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]



Sec. 18b.92  Ex parte communications.

    Only persons employed by or assigned to work with the reviewing 
authority who perform no investigative or prosecuting function in 
connection with a proceeding shall communicate ex parte with the 
reviewing authority or the presiding officer, or any employee or person 
involved in the decisional process in such proceedings with respect to 
the merits of that or a factually related proceeding. The reviewing 
authority, the presiding officer, or any employee or person involved in 
the decisional process of a proceeding shall communicate ex parte with 
respect to the merits of that or a factually related proceeding only 
with persons employed by or assigned to work with them and who perform 
no investigative or prosecuting function in connection with the 
proceeding.



Sec. 18b.93  Expeditious treatment.

    Requests for expeditious treatment of matters pending before the 
reviewing authority or the presiding officer are deemed communications 
on the merits, and are improper except when forwarded from parties to a 
proceeding and served upon all other parties thereto. Such 
communications should be in the form of a motion.



Sec. 18b.94  Matters not prohibited.

    A request for information which merely inquires about the status of 
a proceeding without discussing issues or expressing points of view is 
not deemed an ex parte communication. Such requests should be directed 
to the civil rights hearing clerk. Communications with respect to minor 
procedural matters or inquiries or emergency requests for extensions of 
time are not deemed ex parte communications prohibited by Sec. 18b.92. 
Where feasible, however, such communications should be by letter with 
copies to all parties. Ex parte communications between a respondent and 
the responsible agency official or the Secretary with respect to 
securing such respondent's voluntary compliance with any requirement of 
part 18 of this chapter are not prohibited.



Sec. 18b.95  Filing of ex parte communications.

    A prohibited communication in writing received by the Secretary, the 
reviewing authority, or by the presiding officer, shall be made public 
by placing it in the correspondence file of the

[[Page 62]]

docket in the case and will not be considered as part of the record for 
decision. If the prohibited communication is received orally, a 
memorandum setting forth its substance shall be made and filed in the 
correspondence section of the docket in the case. A person referred to 
in such memorandum may file a comment for inclusion in the docket if the 
memorandum is considered to be incorrect.

[35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986]



PART 19_BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS--Table of Contents




          Subpart A_Operation of the Board of Veterans' Appeals

Sec.
19.1 Establishment of the Board.
19.2 Composition of the Board; Titles.
19.3 Assignment of proceedings.
19.4 Principal functions of the Board.
19.5 Criteria governing disposition of appeals.
19.6 [Reserved]
19.7 The decision.
19.8 Content of Board decision, remand, or order in simultaneously 
          contested claims.
19.9 Further development.
19.10 [Reserved]
19.11 Reconsideration panel.
19.12 Disqualification of Members.
19.13 Delegation of authority to Chairman and Vice Chairman, Board of 
          Veterans' Appeals.
19.14 Delegation of authority--Appeals regulations.

     Subpart B_Appeals Processing by Agency of Original Jurisdiction

19.25 Notification by agency of original jurisdiction of right to 
          appeal.
19.26 Action by agency of original jurisdiction on Notice of 
          Disagreement.
19.27 Adequacy of Notice of Disagreement questioned within the agency of 
          original jurisdiction.
19.28 Determination that a Notice of Disagreement is inadequate 
          protested by claimant or representative.
19.29 Statement of the Case.
19.30 Furnishing the Statement of the Case and instructions for filing a 
          Substantive Appeal.
19.31 Supplemental statement of the case.
19.32 Closing of appeal for failure to respond to Statement of the Case.
19.33 Timely filing of Notice of Disagreement or Substantive Appeal 
          questioned within the agency of original jurisdiction.
19.34 Determination that Notice of Disagreement or Substantive Appeal 
          was not timely filed protested by claimant or representative.
19.35 Certification of appeals.
19.36 Notification of certification of appeal and transfer of appellate 
          record.
19.37 Consideration of additional evidence received by the agency of 
          original jurisdiction after an appeal has been initiated.
19.38 Action by agency of original jurisdiction when remand received.
19.39-19.49 [Reserved]

                    Subpart C_Administrative Appeals

19.50 Nature and form of administrative appeal.
19.51 Officials authorized to file administrative appeals and time 
          limits for filing.
19.52 Notification to claimant of filing of administrative appeal.
19.53 Restriction as to change in payments pending determination of 
          administrative appeals.
19.54-19.74 [Reserved]

 Subpart D_Hearings Before the Board of Veterans' Appeals at Department 
                  of Veterans Affairs Field Facilities

19.75 Hearing docket.
19.76 Notice of time and place of hearing before the Board of Veterans' 
          Appeals at Department of Veterans Affairs field facilities.
19.77-19.99 [Reserved]

                Subpart E_Simultaneously Contested Claims

19.100 Notification of right to appeal in simultaneously contested 
          claims.
19.101 Notice to contesting parties on receipt of Notice of Disagreement 
          in simultaneously contested claims.
19.102 Notice of appeal to other contesting parties in simultaneously 
          contested claims.

Appendix A to Part 19--Cross-References

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    Source: 57 FR 4104, Feb. 3, 1992, unless otherwise noted.

[[Page 63]]



          Subpart A_Operation of the Board of Veterans' Appeals



Sec. 19.1  Establishment of the Board.

    The Board of Veterans' Appeals is established by authority of, and 
functions pursuant to, title 38, United States Code, chapter 71.



Sec. 19.2  Composition of the Board; Titles.

    (a) The Board consists of a Chairman, Vice Chairman, Deputy Vice 
Chairmen, Members and professional, administrative, clerical and 
stenographic personnel. Deputy Vice Chairmen are Members of the Board 
who are appointed to that office by the Secretary upon the 
recommendation of the Chairman.
    (b) A member of the Board (other than the Chairman) may also be 
known as a Veterans Law Judge. An individual designated as an acting 
member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting 
Veterans Law Judge.

(Authority: 38 U.S.C. 501(a), 512, 7101(a))

[68 FR 6625, Feb. 10, 2003]



Sec. 19.3  Assignment of proceedings.

    (a) Assignment. The Chairman may assign a proceeding instituted 
before the Board, including any motion, to an individual Member or to a 
panel of three or more Members for adjudication or other appropriate 
action. The Chairman may participate in a proceeding assigned to a panel 
of Members.


(Authority: 38 U.S.C. 7102)

    (b) Inability to serve. If a Member is unable to participate in the 
disposition of a proceeding or motion to which the Member has been 
assigned, the Chairman may assign the proceeding or motion to another 
Member or substitute another Member (in the case of a proceeding or 
motion assigned to a panel).


(Authority: 38 U.S.C. 7101(a), 7102)

[61 FR 20448, May 7, 1996]



Sec. 19.4  Principal functions of the Board.

    The principal functions of the Board are to make determinations of 
appellate jurisdiction, consider all applications on appeal properly 
before it, conduct hearings on appeal, evaluate the evidence of record, 
and enter decisions in writing on the questions presented on appeal.

(Authority: 38 U.S.C. 7102, 7104, 7107)



Sec. 19.5  Criteria governing disposition of appeals.

    In the consideration of appeals, the Board is bound by applicable 
statutes, regulations of the Department of Veterans Affairs, and 
precedent opinions of the General Counsel of the Department of Veterans 
Affairs. The Board is not bound by Department manuals, circulars, or 
similar administrative issues.

(Authority: 38 U.S.C. 501(a), 7104(c))



Sec. 19.6  [Reserved]



Sec. 19.7  The decision.

    (a) Decisions based on entire record. The appellant will not be 
presumed to be in agreement with any statement of fact contained in a 
Statement of the Case to which no exception is taken. Decisions of the 
Board are based on a review of the entire record.


(Authority: 38 U.S.C. 7104(a), 7105(d)(4))

    (b) Content. The decision of the Board will be in writing and will 
set forth specifically the issue or issues under appellate 
consideration. Except with respect to issues remanded to the agency of 
original jurisdiction for further development of the case and appeals 
which are dismissed because the issue has been resolved by 
administrative action or because an appellant seeking nonmonetary 
benefits has died while the appeal was pending, the decision will also 
include separately stated findings of fact and conclusions of law on all 
material issues of fact and law presented on the record, the reasons or 
bases for those findings and conclusions, and an order granting or 
denying the benefit or benefits sought on appeal or dismissing the 
appeal.


(Authority: 38 U.S.C. 7104(d))


[[Page 64]]


    (c) A decision by a panel of Members will be by a majority vote of 
the panel Members.

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]



Sec. 19.8  Content of Board decision, remand, or order in simultaneously 
contested claims.

    The content of the Board's decision, remand, or order in appeals 
involving a simultaneously contested claim will be limited to 
information that directly affects the issues involved in the contested 
claim. Appellate issues that do not involve all of the contesting 
parties will be addressed in one or more separate written decisions, 
remands, or orders that will be furnished only to the appellants 
concerned and their representatives, if any.

(Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a))

[61 FR 68666, Dec. 30, 1996]



Sec. 19.9  Further development.

    (a) General. If further evidence, clarification of the evidence, 
correction of a procedural defect, or any other action is essential for 
a proper appellate decision, a Board Member or panel of Members may:
    (1) Remand the case to the agency of original jurisdiction, 
specifying the action to be undertaken; or
    (2) Direct Board personnel to undertake the action essential for a 
proper appellate decision.
    (i) Any such action shall comply with the provisions of Sec. 
3.159(a) and (c)-(f) of this chapter (relating to VA's assistance to 
claimants in developing claims).
    (ii) If the Board undertakes to provide the notice required by 38 
U.S.C. 5103(a) and/or Sec. 3.159(b)(1) of this chapter, the appellant 
shall have not less than 30 days to respond to the notice. If, following 
the notice, the Board denies a benefit sought in the pending appeal and 
the appellant submits relevant evidence after the Board's decision but 
before the expiration of one year following the notice, that evidence 
shall be referred to the agency of original jurisdiction. If any 
evidence so referred, together with the evidence already of record, is 
subsequently found to be the basis of an allowance of that benefit, the 
award's effective date will be the same as if the Board had granted the 
benefit in the appeal pending when the notice was provided.
    (b) Examples. A remand to the agency of original jurisdiction is not 
necessary:
    (1) To clarify a procedural matter before the Board, including the 
appellant's choice of representative before the Board, the issues on 
appeal, and requests for a hearing before the Board; or
    (2) For the Board to consider an appeal in light of law, including 
but not limited to statute, regulation, or court decision, not already 
considered by the agency of original jurisdiction.
    (c) Scope. This section does not apply to:
    (1) The Board's request for an opinion under Rule 901 (Sec. 20.901 
of this chapter);
    (2) The Board's supplementation of the record with a recognized 
medical treatise; and
    (3) Matters over which the Board has original jurisdiction described 
in Rules 609 and 610 (Sec. Sec. 20.609 and 20.610 of this chapter).

(Authority: 38 U.S.C. 7102, 7103(c), 7104(a)).

[67 FR 3104, Jan. 23, 2002]



Sec. 19.10  [Reserved]



Sec. 19.11  Reconsideration panel.

    (a) Assignment of Members. When a motion for reconsideration is 
allowed, the Chairman will assign a panel of three or more Members of 
the Board, which may include the Chairman, to conduct the 
reconsideration.
    (b) Number of Members constituting a reconsideration panel. In the 
case of a matter originally heard by a single Member of the Board, the 
case shall be referred to a panel of three Members of the Board. In the 
case of a matter originally heard by a panel of Members of the Board, 
the case shall be referred to an enlarged panel, consisting of three or 
more Members than the original panel. In order to obtain a majority 
opinion, the number of Members assigned to a reconsideration panel may 
be increased in successive increments of three.
    (c) Members included in the reconsideration panel. The 
reconsideration panel

[[Page 65]]

may not include any Member who participated in the decision that is 
being reconsidered. Additional Members will be assigned in accordance 
with paragraph (b) of this section.

(Authority: 38 U.S.C. 7102, 7103)

[61 FR 20449, May 7, 1996]



Sec. 19.12  Disqualification of Members.

    (a) General. A Member of the Board will disqualify himself or 
herself in a hearing or decision on an appeal if that appeal involves a 
determination in which he or she participated or had supervisory 
responsibility in the agency of original jurisdiction prior to his or 
her appointment as a Member of the Board, or where there are other 
circumstances which might give the impression of bias either for or 
against the appellant.


(Authority: 38 U.S.C. 7102, 7104)

    (b) Appeal on same issue subsequent to decision on administrative 
appeal. Any Member of the Board who made the decision on an 
administrative appeal will disqualify himself or herself from acting on 
a subsequent appeal by the claimant on the same issue.


(Authority: 38 U.S.C. 7102, 7104, 7106)

    (c) Disqualification of Members by the Chairman. The Chairman of the 
Board, on his or her own motion, may disqualify a Member from acting in 
an appeal on the grounds set forth in paragraphs (a) and (b) of this 
section and in those cases where a Member is unable or unwilling to act.

(Authority: 38 U.S.C. 7102, 7104, 7106)

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]



Sec. 19.13  Delegation of authority to Chairman and Vice Chairman, 
Board of Veterans' Appeals.

    The Chairman and/or Vice Chairman have authority delegated by the 
Secretary of Veterans Affairs to:
    (a) Approve the assumption of appellate jurisdiction of an 
adjudicative determination which has not become final in order to grant 
a benefit, and
    (b) Order VA Central Office investigations of matters before the 
Board.

(Authority: 38 U.S.C. 303, 512(a))



Sec. 19.14  Delegation of authority--Appeals regulations.

    (a) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Sec. Sec. 19.3(b), 19.3(c), and 19.12(c) 
of this part may also be exercised by the Vice Chairman of the Board.
    (b) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Sec. Sec. 19.3(d) and 19.11 of this part 
may also be exercised by the Vice Chairman of the Board and by Deputy 
Vice Chairmen of the Board.

(Authority: 38 U.S.C. 512(a), 7102, 7104)



     Subpart B_Appeals Processing by Agency of Original Jurisdiction



Sec. 19.25  Notification by agency of original jurisdiction of right to 
appeal.

    The claimant and his or her representative, if any, will be informed 
of appellate rights provided by 38 U.S.C. chapters 71 and 72, including 
the right to a personal hearing and the right to representation. The 
agency of original jurisdiction will provide this information in each 
notification of a determination of entitlement or nonentitlement to 
Department of Veterans Affairs benefits.

(Authority: 38 U.S.C. 7105(a))



Sec. 19.26  Action by agency of original jurisdiction on Notice of 
Disagreement.

    When a Notice of Disagreement is timely filed, the agency of 
original jurisdiction must reexamine the claim and determine if 
additional review or development is warranted. When a Notice of 
Disagreement is received following a multiple-issue determination and it 
is not clear which issue, or issues, the claimant desires to appeal, 
clarification sufficient to identify the issue, or issues, being 
appealed should be requested from the claimant or his or her 
representative. If no preliminary action is required, or when it is 
completed, the agency of original jurisdiction must prepare a Statement 
of the Case pursuant to Sec. 19.29 of this part, unless the matter is 
resolved by granting the benefits sought on appeal or the Notice of 
Disagreement is withdrawn

[[Page 66]]

by the appellant or his or her representative.

(Authority: 38 U.S.C. 7105(d)(1))



Sec. 19.27  Adequacy of Notice of Disagreement questioned within the 
agency of original jurisdiction.

    If, within the agency of original jurisdiction, there is a question 
as to the adequacy of a Notice of Disagreement, the procedures for an 
administrative appeal must be followed.

(Authority: 38 U.S.C. 7105, 7106)



Sec. 19.28  Determination that a Notice of Disagreement is inadequate 
protested by claimant or representative.

    Whether a Notice of Disagreement is adequate is an appealable issue. 
If the claimant or his or her representative protests an adverse 
determination made by the agency of original jurisdiction with respect 
to the adequacy of a Notice of Disagreement, the claimant will be 
furnished a Statement of the Case.

(Authority: 38 U.S.C. 7105)



Sec. 19.29  Statement of the Case.

    The Statement of the Case must be complete enough to allow the 
appellant to present written and/or oral arguments before the Board of 
Veterans' Appeals. It must contain:
    (a) A summary of the evidence in the case relating to the issue or 
issues with which the appellant or representative has expressed 
disagreement;
    (b) A summary of the applicable laws and regulations, with 
appropriate citations, and a discussion of how such laws and regulations 
affect the determination; and
    (c) The determination of the agency of original jurisdiction on each 
issue and the reasons for each such determination with respect to which 
disagreement has been expressed.

(Authority: 38 U.S.C. 7105(d)(1))



Sec. 19.30  Furnishing the Statement of the Case and instructions for 
filing a Substantive Appeal.

    (a) To whom the Statement of the Case is furnished. The Statement of 
the Case will be forwarded to the appellant at the latest address of 
record and a separate copy provided to his or her representative (if 
any).
    (b) Information furnished with the Statement of the Case. With the 
Statement of the Case, the appellant and the representative will be 
furnished information on the right to file, and time limit for filing, a 
Substantive Appeal; information on hearing and representation rights; 
and a VA Form 9, ``Appeal to Board of Veterans' Appeals.''

(Authority: 38 U.S.C. 7105)

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]



Sec. 19.31  Supplemental statement of the case.

    (a) Purpose and limitations. A ``Supplemental Statement of the 
Case,'' so identified, is a document prepared by the agency of original 
jurisdiction to inform the appellant of any material changes in, or 
additions to, the information included in the Statement of the Case or 
any prior Supplemental Statement of the Case. In no case will a 
Supplemental Statement of the Case be used to announce decisions by the 
agency of original jurisdiction on issues not previously addressed in 
the Statement of the Case, or to respond to a notice of disagreement on 
newly appealed issues that were not addressed in the Statement of the 
Case. The agency of original jurisdiction will respond to notices of 
disagreement on newly appealed issues not addressed in the Statement of 
the Case using the procedures in Sec. Sec. 19.29 and 19.30 of this part 
(relating to statements of the case).
    (b) When furnished. The agency of original jurisdiction will furnish 
the appellant and his or her representative, if any, a Supplemental 
Statement of the Case if:
    (1) The agency of original jurisdiction receives additional 
pertinent evidence after a Statement of the Case or the most recent 
Supplemental Statement of the Case has been issued and before the appeal 
is certified to the Board of Veterans' Appeals and the appellate record 
is transferred to the Board;
    (2) A material defect in the Statement of the Case or a prior 
Supplemental statement of the Case is discovered; or

[[Page 67]]

    (3) For any other reason the Statement of the Case or a prior 
Supplemental Statement of the Case is inadequate.
    (c) Pursuant to remand from the Board. The agency of original 
jurisdiction will issue a Supplemental Statement of the Case if, 
pursuant to a remand by the Board, it develops the evidence or cures a 
procedural defect, unless:
    (1) The only purpose of the remand is to assemble records previously 
considered by the agency of original jurisdiction and properly discussed 
in a prior Statement of the Case or Supplemental Statement of the Case; 
or
    (2) The Board specifies in the remand that a Supplemental Statement 
of the Case is not required.

(Authority: 38 U.S.C. 7105(d)).

[67 FR 3104, Jan. 23, 2002]



Sec. 19.32  Closing of appeal for failure to respond to Statement 
of the Case.

    The agency of original jurisdiction may close the appeal without 
notice to an appellant or his or her representative for failure to 
respond to a Statement of the Case within the period allowed. However, 
if a Substantive Appeal is subsequently received within the 1-year 
appeal period (60-day appeal period for simultaneously contested 
claims), the appeal will be considered to be reactivated.

(Authority: 38 U.S.C. 7105(d)(3))



Sec. 19.33  Timely filing of Notice of Disagreement or Substantive Appeal 
questioned within the agency of original jurisdiction.

    If, within the agency of original jurisdiction, there is a question 
as to the timely filing of a Notice of Disagreement or Substantive 
Appeal, the procedures for an administrative appeal must be followed.

(Authority: 38 U.S.C. 7105, 7106)



Sec. 19.34  Determination that Notice of Disagreement or Substantive 
Appeal was not timely filed protested by claimant or representative.

    Whether a Notice of Disagreement or Substantive Appeal has been 
filed on time is an appealable issue. If the claimant or his or her 
representative protests an adverse determination made by the agency of 
original jurisdiction with respect to timely filing of the Notice of 
Disagreement or Substantive Appeal, the claimant will be furnished a 
Statement of the Case.

(Authority: 38 U.S.C. 7105)



Sec. 19.35  Certification of appeals.

    Following receipt of a timely Substantive Appeal, the agency of 
original jurisdiction will certify the case to the Board of Veterans' 
Appeals. Certification is accomplished by the completion of VA Form 8, 
``Certification of Appeal.'' The certification is used for 
administrative purposes and does not serve to either confer or deprive 
the Board of Veterans' Appeals of jurisdiction over an issue.

(Authority: 38 U.S.C. 7105)

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 66 FR 
53339, Oct. 22, 2001]



Sec. 19.36  Notification of certification of appeal and transfer of 
appellate record.

    When an appeal is certified to the Board of Veterans' Appeals for 
appellate review and the appellate record is transferred to the Board, 
the appellant and his or her representative, if any, will be notified in 
writing of the certification and transfer and of the time limit for 
requesting a change in representation, for requesting a personal 
hearing, and for submitting additional evidence described in Rule of 
Practice 1304 (Sec. 20.1304 of this chapter).

(Authority: 38 U.S.C. 7105)



Sec. 19.37  Consideration of additional evidence received by the 
agency of original jurisdiction after an appeal has been initiated.

    (a) Evidence received prior to transfer of records to Board of 
Veterans' Appeals. Evidence received by the agency of original 
jurisdiction prior to transfer of the records to the Board of Veterans' 
Appeals after an appeal has been initiated (including evidence received 
after certification has been completed) will be referred to the 
appropriate rating or authorization activity for review and disposition. 
If the Statement of the Case and any prior Supplemental Statements of 
the Case were prepared

[[Page 68]]

before the receipt of the additional evidence, a Supplemental Statement 
of the Case will be furnished to the appellant and his or her 
representative as provided in Sec. 19.31 of this part, unless the 
additional evidence received duplicates evidence previously of record 
which was discussed in the Statement of the Case or a prior Supplemental 
Statement of the Case or the additional evidence is not relevant to the 
issue, or issues, on appeal.
    (b) Evidence received after transfer of records to the Board of 
Veterans' Appeals. Additional evidence received by the agency of 
original jurisdiction after the records have been transferred to the 
Board of Veterans' Appeals for appellate consideration will be forwarded 
to the Board if it has a bearing on the appellate issue or issues. The 
Board will then determine what action is required with respect to the 
additional evidence.

(Authority: 38 U.S.C. 7105(d)(1))



Sec. 19.38  Action by agency of original jurisdiction when remand received.

    When a case is remanded by the Board of Veterans' Appeals, the 
agency of original jurisdiction will complete the additional development 
of the evidence or procedural development required. Following completion 
of the development, the case will be reviewed to determine whether the 
additional development, together with the evidence which was previously 
of record, supports the allowance of all benefits sought on appeal. If 
so, the Board and the appellant and his or her representative, if any, 
will be promptly informed. If any benefits sought on appeal remain 
denied following this review, the agency of original jurisdiction will 
issue a Supplemental Statement of the Case concerning the additional 
development pertaining to those issues in accordance with the provisions 
of Sec. 19.31 of this part. Following the 60-day period allowed for a 
response to the Supplemental Statement of the Case pursuant to Rule of 
Practice 302, paragraph (c) (Sec. 20.302(c) of this chapter), the case 
will be returned to the Board for further appellate processing unless 
the appeal is withdrawn or review of the response to the Supplemental 
Statement of the Case results in the allowance of all benefits sought on 
appeal. Remanded cases will not be closed for failure to respond to the 
Supplemental Statement of the Case.

(Authority 38 U.S.C. 7105(d)(1))



Sec. Sec. 19.39-19.49  [Reserved]



                    Subpart C_Administrative Appeals



Sec. 19.50  Nature and form of administrative appeal.

    (a) General. An administrative appeal from an agency of original 
jurisdiction determination is an appeal taken by an official of the 
Department of Veterans Affairs authorized to do so to resolve a conflict 
of opinion or a question pertaining to a claim involving benefits under 
laws administered by the Department of Veterans Affairs. Such appeals 
may be taken not only from determinations involving dissenting opinions, 
but also from unanimous determinations denying or allowing the benefit 
claimed in whole or in part.
    (b) Form of Appeal. An administrative appeal is entered by a 
memorandum entitled ``Administrative Appeal'' in which the issues and 
the basis for the appeal are set forth.

(Authority: 38 U.S.C. 7106)



Sec. 19.51  Officials authorized to file administrative appeals and 
time limits for filing.

    The Secretary of Veterans Affairs authorizes certain officials of 
the Department of Veterans Affairs to file administrative appeals within 
specified time limits, as follows:
    (a) Central Office--(1) Officials. The Under Secretary for Benefits 
or a service director of the Veterans Benefits Administration, the Under 
Secretary for Health or a service director of the Veterans Health 
Administration, and the General Counsel.
    (2) Time limit. Such officials must file an administrative appeal 
within 1 year from the date of mailing notice of such determination to 
the claimant.
    (b) Agencies of original jurisdiction--(1) Officials. Directors, 
adjudication officers, and officials at comparable levels in field 
offices deciding any claims for

[[Page 69]]

benefits, from any determination originating within their established 
jurisdiction.
    (2) Time limit. The Director or comparable official must file an 
administrative appeal within 6 months from the date of mailing notice of 
the determination to the claimant. Officials below the level of Director 
must do so within 60 days from such date.
    (c) The date of mailing. With respect to paragraphs (a) and (b) of 
this section, the date of mailing notice of the determination to the 
claimant will be presumed to be the same as the date of the letter of 
notification to the claimant.

(Authority: 38 U.S.C. 7106)

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]



Sec. 19.52  Notification to claimant of filing of administrative appeal.

    When an administrative appeal is entered, the claimant and his or 
her representative, if any, will be promptly furnished a copy of the 
memorandum entitled ``Administrative Appeal,'' or an adequate summary 
thereof, outlining the question at issue. They will be allowed a period 
of 60 days to join in the appeal if they so desire. The claimant will 
also be advised of the effect of such action and of the preservation of 
normal appeal rights if he or she does not elect to join in the 
administrative appeal.

(Authority: 38 U.S.C. 7106)



Sec. 19.53  Restriction as to change in payments pending determination 
of administrative appeals.

    If an administrative appeal is taken from a review or determination 
by the agency of original jurisdiction pursuant to Sec. Sec. 19.50 and 
19.51 of this part, that review or determination may not be used to 
effect any change in payments until after a decision is made by the 
Board of Veterans' Appeals.

(Authority: 38 U.S.C. 7106)



Sec. Sec. 19.54-19.74  [Reserved]



 Subpart D_Hearings Before the Board of Veterans' Appeals at Department 
                  of Veterans Affairs Field Facilities



Sec. 19.75  Field hearing docket.

    Hearings on appeal held at Department of Veterans Affairs field 
facilities will be scheduled for each area served by a regional office 
in accordance with the place of each case on the Board's docket, 
established under Sec. 20.900 of this chapter, relative to other cases 
for which hearings are scheduled to be held within that area. Such 
scheduling is subject to Sec. 20.704(f) of this chapter pertaining to 
advancement of a case on the hearing docket.

(Authority: 38 U.S.C. 7107)

[65 FR 14471, Mar. 17, 2000]



Sec. 19.76  Notice of time and place of hearing before the Board of 
Veterans' Appeals at Department of Veterans Affairs field facilities.

    The agency of original jurisdiction will notify the appellant and 
his or her representative of the place and time of a hearing before the 
Board of Veterans' Appeals at a Department of Veterans Affairs field 
facility not less than 30 days prior to the hearing date. This time 
limitation does not apply to hearings which have been rescheduled due to 
a postponement requested by an appellant, or on his or her behalf, or 
due to the prior failure of an appellant to appear at a scheduled 
hearing before the Board of Veterans' Appeals at a Department of 
Veterans Affairs field facility with good cause. The right to notice at 
least 30 days in advance will be deemed to have been waived if an 
appellant accepts an earlier hearing date due to the cancellation of 
another previously scheduled hearing.

(Authority: 38 U.S.C. 7107)

[61 FR 20449, May 7, 1996, as amended at 61 FR 43008, Aug. 20, 1996]

[[Page 70]]



Sec. Sec. 19.77-19.99  [Reserved]



                Subpart E_Simultaneously Contested Claims



Sec. 19.100  Notification of right to appeal in simultaneously 
contested claims.

    All interested parties will be specifically notified of the action 
taken by the agency of original jurisdiction in a simultaneously 
contested claim and of the right and time limit for initiation of an 
appeal, as well as hearing and representation rights.

(Authority: 38 U.S.C. 7105A(a))



Sec. 19.101  Notice to contesting parties on receipt of Notice of 
Disagreement in simultaneously contested claims.

    Upon the filing of a Notice of Disagreement in a simultaneously 
contested claim, all interested parties and their representatives will 
be furnished a copy of the Statement of the Case. The Statement of the 
Case so furnished will contain only information which directly affects 
the payment or potential payment of the benefit(s) which is (are) the 
subject of that contested claim. The interested parties who filed 
Notices of Disagreement will be duly notified of the right to file, and 
the time limit within which to file, a Substantive Appeal and will be 
furnished with VA Form 9, ``Appeal to Board of Veterans' Appeals.''

(Authority: 38 U.S.C. 7105A(b))

[57 FR 4104, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996]



Sec. 19.102  Notice of appeal to other contesting parties in simultaneously 
contested claims.

    When a Substantive Appeal is filed in a simultaneously contested 
claim, the content of the Substantive Appeal will be furnished to the 
other contesting parties to the extent that it contains information 
which could directly affect the payment or potential payment of the 
benefit which is the subject of the contested claim.

(Authority: 38 U.S.C. 7105A(b))

                 Appendix A to Part 19--Cross-References

------------------------------------------------------------------------
                                                     Title of cross-
      Sec. Cross-reference          referenced material or
                                                         comment
------------------------------------------------------------------------
19.5...........  38 CFR 14.507(b).............  See re ``precedent
                                                 opinions'' of the
                                                 General Counsel of the
                                                 Department of Veterans
                                                 Affairs.
                 38 CFR 20.1303...............  Rule 1303.
                                                 Nonprecedential nature
                                                 of Board decisions.
19.7...........  38 CFR 20.905................  Rule 905. Vacating a
                                                 decision.
19.13..........  38 CFR 2.66..................  Contains similar
                                                 provisions.
19.25..........  38 CFR 19.52.................  Notification to claimant
                                                 of filing of
                                                 administrative appeal.
                 38 CFR 19.100................  Notification of right to
                                                 appeal in
                                                 simultaneously
                                                 contested claims.
19.26..........  38 CFR 20.302................  Rule 302. Time limit for
                                                 filing Notice of
                                                 Disagreement,
                                                 Substantive Appeal, and
                                                 response to
                                                 Supplemental Statement
                                                 of the Case.
19.27..........  38 CFR 19.50-19.53...........  See re administrative
                                                 appeals.
19.30..........  38 CFR 20.202................  Rule 202. Substantive
                                                 Appeal.
19.32..........  38 CFR 20.302................  Rule 302. Time limit for
                                                 filing Notice of
                                                 Disagreement,
                                                 Substantive Appeal, and
                                                 response to
                                                 Supplemental Statement
                                                 of the Case.
                 38 CFR 20.501................  Rule 501. Time limits
                                                 for filing Notice of
                                                 Disagreement,
                                                 Substantive Appeal, and
                                                 response to
                                                 Supplemental Statement
                                                 of the Case in
                                                 simultaneously
                                                 contested claims.
19.33..........  38 CFR 19.50-19.53...........  See re administrative
                                                 appeals.
19.50..........  38 CFR 19.53.................  Restriction as to change
                                                 in payments pending
                                                 determination of
                                                 administrative appeals.
19.76..........  38 CFR 20.704................  Rule 704. Scheduling and
                                                 notice of hearings
                                                 conducted by traveling
                                                 Sections of the Board
                                                 of Veterans' Appeals at
                                                 Department of Veterans
                                                 Affairs field
                                                 facilities.
19.100.........  38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
19.101.........  38 CFR 19.30.................  Furnishing the Statement
                                                 of the Case and
                                                 instructions for filing
                                                 a Substantive Appeal.
------------------------------------------------------------------------


[[Page 71]]



PART 20_BOARD OF VETERANS' APPEALS: RULES OF PRACTICE--Table of Contents




                            Subpart A_General

Sec.
20.1 Rule 1. Purpose and construction of Rules of Practice.
20.2 Rule 2. Procedure in absence of specific Rule of Practice.
20.3 Rule 3. Definitions.
20.4-20.99 [Reserved]

                           Subpart B_The Board

20.100 Rule 100. Name, business hours, and mailing address of the Board.
20.101 Rule 101. Jurisdiction of the Board.
20.102 Rule 102. Delegation of authority--Rules of Practice.
20.103-20.199 [Reserved]

             Subpart C_Commencement and Perfection of Appeal

20.200 Rule 200. What constitutes an appeal.
20.201 Rule 201. Notice of Disagreement.
20.202 Rule 202. Substantive Appeal.
20.203 [Reserved]
20.204 Rule 204. Withdrawal of Appeal.
20.205-20.299 [Reserved]

                            Subpart D_Filing

20.300 Rule 300. Place of filing Notice of Disagreement and Substantive 
          Appeal.
20.301 Rule 301. Who can file an appeal.
20.302 Rule 302. Time limit for filing Notice of Disagreement, 
          Substantive Appeal, and response to Supplemental Statement of 
          the Case.
20.303 Rule 303. Extension of time for filing Substantive Appeal and 
          response to Supplemental Statement of the Case.
20.304 Rule 304. Filing additional evidence does not extend time limit 
          for appeal.
20.305 Rule 305. Computation of time limit for filing.
20.306 Rule 306. Legal holidays.
20.307-20.399 [Reserved]

                    Subpart E_Administrative Appeals

20.400 Rule 400. Action by claimant or representative on notification of 
          administrative appeal.
20.401 Rule 401. Effect of decision on administrative or merged appeal 
          on claimant's appellate rights.
20.402-20.499 [Reserved]

                Subpart F_Simultaneously Contested Claims

20.500 Rule 500. Who can file an appeal in simultaneously contested 
          claims.
20.501 Rule 501. Time limits for filing Notice of Disagreement, 
          Substantive Appeal, and response to Supplemental Statement of 
          the Case in simultaneously contested claims.
20.502 Rule 502. Time limit for response to appeal by another contesting 
          party in a simultaneously contested claim.
20.503 Rule 503. Extension of time for filing a Substantive Appeal in 
          simultaneously contested claims.
20.504 Rule 504. Notices sent to last addresses of record in 
          simultaneously contested claims.
20.505-20.599 [Reserved]

                        Subpart G_Representation

20.600 Rule 600. Right to representation.
20.601 Rule 601. Only one representative recognized.
20.602 Rule 602. Representation by recognized organizations.
20.603 Rule 603. Representation by attorneys-at-law.
20.604 Rule 604. Representation by agents.
20.605 Rule 605. Other persons as representative.
20.606 Rule 606. Legal interns, law students and paralegals.
20.607 Rule 607. Revocation of a representative's authority to act.
20.608 Rule 608. Withdrawal of services by a representative.
20.609 Rule 609. Payment of representative's fees in proceedings before 
          Department of Veterans Affairs field personnel and before the 
          Board of Veterans' Appeals.
20.610 Rule 610. Payment of representative's expenses in proceedings 
          before Department of Veterans Affairs field personnel and 
          before the Board of Veterans' Appeals.
20.612-20.699 [Reserved]

                      Subpart H_Hearings on Appeal

20.700 Rule 700. General.
20.701 Rule 701. Who may present oral argument.
20.702 Rule 702. Scheduling and notice of hearings conducted by the 
          Board of Veterans' Appeals in Washington, DC.
20.703 Rule 703. When a hearing before the Board of Veterans' Appeals at 
          a Department of Veterans Affairs field facility may be 
          requested.
20.704 Rule 704. Scheduling and notice of hearings conducted by the 
          Board of Veterans' Appeals at Department of Veterans Affairs 
          field facilities.
20.705 Rule 705. Where hearings are conducted.
20.706 Rule 706. Functions of the presiding Member.
20.707 Rule 707. Designation of Member or Members to conduct the 
          hearing.

[[Page 72]]

20.708 Rule 708. Prehearing conference.
20.709 Rule 709. Procurement of additional evidence following a hearing.
20.710 Rule 710. Witnesses at hearings.
20.711 Rule 711. Subpoenas.
20.712 Rule 712. Expenses of appellants, representatives, and witnesses 
          incident to hearings not reimbursable by the Government.
20.713 Rule 713. Hearings in simultaneously contested claims.
20.714 Rule 714. Record of hearing.
20.715 Rule 715. Recording of hearing by appellant or representative.
20.716 Rule 716. Correction of hearing transcripts.
20.717 Rule 717. Loss of hearing tapes or transcripts--motion for new 
          hearing.
20.718-20.799 [Reserved]

                           Subpart I_Evidence

20.800 Rule 800. Submission of additional evidence after initiation of 
          appeal.
20.801-20.899 [Reserved]

                      Subpart J_Action by the Board

20.900 Rule 900. Order of consideration of appeals.
20.901 Rule 901. Medical opinions and opinions of the General Counsel.
20.902 Rule 902. Filing of requests for the procurement of opinions.
20.903 Rule 903. Notification of evidence secured and law to be 
          considered by the Board and opportunity for response.
20.904 Rule 904. Vacating a decision.
20.905-20.999 [Reserved]

                        Subpart K_Reconsideration

20.1000 Rule 1000. When reconsideration is accorded.
20.1001 Rule 1001. Filing and disposition of motion for reconsideration.
20.1002 Rule 1002. [Reserved]
20.1003 Rule 1003. Hearings on reconsideration.
20.1004-20.1099 [Reserved]

                           Subpart L_Finality

20.1100 Rule 1100. Finality of decisions of the Board.
20.1101 Rule 1101. [Reserved]
20.1102 Rule 1102. Harmless error.
20.1103 Rule 1103. Finality of determinations of the agency of original 
          jurisdiction where appeal is not perfected.
20.1104 Rule 1104. Finality of determinations of the agency of original 
          jurisdiction affirmed on appeal.
20.1105 Rule 1105. New claim after promulgation of appellate decision.
20.1106 Rule 1106. Claim for death benefits by survivor--prior 
          unfavorable decisions during veteran's lifetime.
20.1107-20.1199 [Reserved]

                          Subpart M_Privacy Act

20.1200 Rule 1200. Privacy Act request--appeal pending.
20.1201 Rule 1201. Amendment of appellate decisions.
20.1202-20.1299 [Reserved]

                         Subpart N_Miscellaneous

20.1300 Rule 1300. Removal of Board records.
20.1301 Rule 1301. Disclosure of information.
20.1302 Rule 1302. Death of appellant during pendency of appeal.
20.1303 Rule 1303. Nonprecedential nature of Board decisions.
20.1304 Rule 1304. Request for change in representation, request for 
          personal hearing, or submission of additional evidence 
          following certification of an appeal to the Board of Veterans' 
          Appeals.

  Subpart O_Revision of Decisions on Grounds of Clear and Unmistakable 
                                  Error

20.1400 Rule 1400. Motions to revise Board decisions.
20.1401 Rule 1401. Definitions.
20.1402 Rule 1402. Inapplicability of other rules.
20.1403 Rule 1403. What constitutes clear and unmistakable error; what 
          does not.
20.1404 Rule 1404. Filing and pleading requirements; withdrawal.
20.1405 Rule 1405. Disposition.
20.1406 Rule 1406. Effect of revision; discontinuance or reduction of 
          benefits.
20.1407 Rule 1407. Motions by the Board.
20.1408 Rule 1408. Special rules for simultaneously contested claims.
20.1409 Rule 1409. Finality and appeal.
20.1410 Rule 1410. Stays pending court action.
20.1411 Rule 1411. Relationship to other statutes.

Appendix A to Part 20--Cross-References

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

    Source: 57 FR 4109, Feb. 3, 1992, unless otherwise noted.



                            Subpart A_General



Sec. 20.1  Rule 1. Purpose and construction of Rules of Practice.

    (a) Purpose. These rules establish the practices and procedures 
governing appeals to the Board of Veterans' Appeals.


(Authority: 38 U.S.C. 501(a), 7102, 7104)


[[Page 73]]


    (b) Construction. These rules are to be construed to secure a just 
and speedy decision in every appeal.


(Authority: 38 U.S.C. 501(a), 5107, 7104)



Sec. 20.2  Rule 2. Procedure in absence of specific Rule of Practice.

    Where in any instance there is no applicable rule or procedure, the 
Chairman may prescribe a procedure which is consistent with the 
provisions of title 38, United States Code, and these rules.

(Authority: 38 U.S.C. 501(a), 512(a), 7102, 7104)



Sec. 20.3  Rule 3. Definitions.

    As used in these Rules:
    (a) Agency of original jurisdiction means the Department of Veterans 
Affairs regional office, medical center, clinic, cemetery, or other 
Department of Veterans Affairs facility which made the initial 
determination on a claim or, if the applicable records are later 
permanently transferred to another Department of Veterans Affairs 
facility, its successor.
    (b) Agent means a person who has met the standards and 
qualifications for accreditation outlined in Sec. 14.629(b) of this 
chapter and who has been properly designated under the provisions of 
Rule 604 (Sec. 20.604 of this part). It does not include 
representatives recognized under Rules 602, 603, or 605 (Sec. 20.602, 
20.603, or Sec. 20.605 of this part).
    (c) Appellant means a claimant who has initiated an appeal to the 
Board of Veterans' Appeals by filing a Notice of Disagreement pursuant 
to the provisions of 38 U.S.C. 7105.
    (d) Attorney-at-law means a member in good standing of a State bar.
    (e) Benefit means any payment, service, commodity, function, or 
status, entitlement to which is determined under laws administered by 
the Department of Veterans Affairs pertaining to veterans and their 
dependents and survivors.
    (f) Claim means application made under title 38, United States Code, 
and implementing directives for entitlement to Department of Veterans 
Affairs benefits or for the continuation or increase of such benefits, 
or the defense of a proposed agency adverse action concerning benefits.
    (g) Claimant means a person who has filed a claim, as defined by 
paragraph (f) of this section.
    (h) Electronic hearing means a hearing on appeal in which an 
appellant or a representative participates, through voice transmission 
or through picture and voice transmission, by electronic or other means, 
in a hearing with a Member or Members sitting at the Board's principal 
location in Washington, DC.
    (i) Hearing on appeal means a hearing conducted after a Notice of 
Disagreement has been filed in which argument and/or testimony is 
presented concerning the determination, or determinations, by the agency 
of original jurisdiction being appealed.
    (j) Law student means an individual pursuing a Juris Doctor or 
equivalent degree at a school approved by a recognized accrediting 
association.
    (k) Legal intern means a graduate of a law school, which has been 
approved by a recognized accrediting association, who has not yet been 
admitted to a State bar.
    (l) Motion means a request that the Board rule on some question 
which is subsidiary to the ultimate decision on the outcome of an 
appeal. For example, the questions of whether a representative's fees 
are reasonable or whether additional evidence may be submitted more than 
90 days after certification of an appeal to the Board are raised by 
motion (see Rule 609, paragraph (i), and Rule 1304, paragraph (b) 
Sec. Sec. 20.609(i) and 20.1304(b) of this part). Unless raised orally 
at a personal hearing before Members of the Board, motions for 
consideration by the Board must be made in writing. No formal type of 
document is required. The motion may be in the form of a letter which 
contains the necessary information.
    (m) Paralegal means a graduate of a course of paralegal instruction 
given by a school which has been approved by a recognized accrediting 
association, or an individual who has equivalent legal experience.
    (n) Past-due benefits means a nonrecurring payment resulting from a 
benefit, or benefits, granted on appeal or awarded on the basis of a 
claim reopened after a denial by the Board of Veterans' Appeals or the 
lump sum

[[Page 74]]

payment which represents the total amount of recurring cash payments 
which accrued between the effective date of the award, as determined by 
applicable laws and regulations, and the date of the grant of the 
benefit by the agency of original jurisdiction, the Board of Veterans' 
Appeals, or an appellate court.
    (o) Presiding Member means that Member of the Board who presides 
over a hearing, whether conducted as a single Member or panel hearing.
    (p) Simultaneously contested claim refers to the situation in which 
the allowance of one claim results in the disallowance of another claim 
involving the same benefit or the allowance of one claim results in the 
payment of a lesser benefit to another claimant.
    (q) State includes any State, possession, territory, or Commonwealth 
of the United States, as well as the District of Columbia.

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

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20449, May 7, 1996; 67 FR 
36104, May 23, 2002]



Sec. Sec. 20.4-20.99  [Reserved]



                           Subpart B_The Board



Sec. 20.100  Rule 100. Name, business hours, and mailing address of the 
Board.

    (a) Name. The name of the Board is the Board of Veterans' Appeals.
    (b) Business hours. The Board is open during business hours on all 
days except Saturday, Sunday and legal holidays. Business hours are from 
8 a.m. to 4:30 p.m.
    (c) Mailing address. Except as otherwise noted in these Rules, mail 
to the Board must be addressed to: Chairman (01), Board of Veterans' 
Appeals, 810 Vermont Avenue NW., Washington, DC 20420.

(Authority: 38 U.S.C. 7101(a))



Sec. 20.101  Rule 101. Jurisdiction of the Board.

    (a) General. All questions of law and fact necessary to a decision 
by the Secretary of Veterans Affairs under a law that affects the 
provision of benefits by the Secretary to veterans or their dependents 
or survivors are subject to review on appeal to the Secretary. Decisions 
in such appeals are made by the Board of Veterans' Appeals. In its 
decisions, the Board is bound by applicable statutes, the regulations of 
the Department of Veterans Affairs and precedent opinions of the General 
Counsel of the Department of Veterans Affairs. Examples of the issues 
over which the Board has jurisdiction include, but are not limited to, 
the following:
    (1) Entitlement to, and benefits resulting from, service-connected 
disability or death (38 U.S.C. chapter 11).
    (2) Dependency and indemnity compensation for service-connected 
death, including benefits in certain cases of inservice or service-
connected deaths (38 U.S.C. 1312) and certification and entitlement to 
death gratuity (38 U.S.C. 1323).
    (3) Benefits for survivors of certain veterans rated totally 
disabled at time of death (38 U.S.C. 1318).
    (4) Entitlement to nonservice-connected disability pension, service 
pension and death pension (38 U.S.C. chapter 15).
    (5) All-Volunteer Force Educational Assistance Program (38 U.S.C. 
chapter 30).
    (6) Training and Rehabilitation for Veterans with Service-Connected 
Disabilities (38 U.S.C. chapter 31).
    (7) Post-Vietnam Era Veterans' Educational Assistance (38 U.S.C. 
chapter 32).
    (8) Veterans' Educational Assistance (38 U.S.C. chapter 34).
    (9) Survivors' and Dependents' Educational Assistance (38 U.S.C. 
chapter 35).
    (10) Veterans' Job Training (Pub. L. 98-77, as amended; 38 CFR 
21.4600 et seq.).
    (11) Educational Assistance for Members of the Selected Reserve (10 
U.S.C. chapter 106).
    (12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38 
CFR 21.5701 et seq.).
    (13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38 
CFR 21.5290 et seq.).
    (14) Matters arising under National Service Life Insurance and 
United States Government Life Insurance (38 U.S.C. chapter 19).

[[Page 75]]

    (15) Payment or reimbursement for unauthorized medical expenses (38 
U.S.C. 1728).
    (16) Burial benefits and burial in National Cemeteries (38 U.S.C. 
chapters 23 and 24).
    (17) Benefits for persons disabled by medical treatment or 
vocational rehabilitation (38 U.S.C. 1151).
    (18) Basic eligibility for home, condominium and mobile home loans 
as well as waiver of payment of loan guaranty indebtedness (38 U.S.C. 
chapter 37, 38 U.S.C. 5302).
    (19) Waiver of recovery of overpayments (38 U.S.C. 5302).
    (20) Forfeiture of rights, claims or benefits for fraud, treason, or 
subversive activities (38 U.S.C. 6102-6105).
    (21) Character of discharge (38 U.S.C. 5303).
    (22) Determinations as to duty status (38 U.S.C. 101(21)-(24)).
    (23) Determinations as to marital status (38 U.S.C. 101(3), 103).
    (24) Determination of dependency status as parent or child (38 
U.S.C. 101(4), (5)).
    (25) Validity of claims and effective dates of benefits (38 U.S.C. 
chapter 51).
    (26) Apportionment of benefits (38 U.S.C. 5307).
    (27) Payment of benefits while a veteran is hospitalized and 
questions regarding an estate of an incompetent institutionalized 
veteran (38 U.S.C. 5503).
    (28) Benefits for surviving spouses and children of deceased 
veterans under Public Law 97-377, section 156 (38 CFR 3.812(d)).
    (29) Eligibility for automobile and automobile adaptive equipment 
assistance (38 U.S.C. chapter 39).
    (b) Appellate jurisdiction of determinations of the Veterans Health 
Administration. The Board's appellate jurisdiction extends to questions 
of eligibility for hospitalization, outpatient treatment, and nursing 
home and domiciliary care; for devices such as prostheses, canes, 
wheelchairs, back braces, orthopedic shoes, and similar appliances; and 
for other benefits administered by the Veterans Health Administration. 
Medical determinations, such as determinations of the need for and 
appropriateness of specific types of medical care and treatment for an 
individual, are not adjudicative matters and are beyond the Board's 
jurisdiction. Typical examples of these issues are whether a particular 
drug should be prescribed, whether a specific type of physiotherapy 
should be ordered, and similar judgmental treatment decisions with which 
an attending physician may be faced.
    (c) Appeals as to jurisdiction. All claimants have the right to 
appeal a determination made by the agency of original jurisdiction that 
the Board does not have jurisdictional authority to review a particular 
case. Jurisdictional questions which a claimant may appeal, include, but 
are not limited to, questions relating to the timely filing and adequacy 
of the Notice of Disagreement and the Substantive Appeal.
    (d) Authority to determine jurisdiction. The Board may address 
questions pertaining to its jurisdictional authority to review a 
particular case, including, but not limited to, determining whether 
Notices of Disagreement and Substantive Appeals are adequate and timely, 
at any stage in a proceeding before it, regardless of whether the agency 
of original jurisdiction addressed such question(s). When the Board, on 
its own initiative, raises a question as to a potential jurisdictional 
defect, all parties to the proceeding and their representative(s), if 
any, will be given notice of the potential jurisdictional defect(s) and 
granted a period of 60 days following the date on which such notice is 
mailed to present written argument and additional evidence relevant to 
jurisdiction and to request a hearing to present oral argument on the 
jurisdictional question(s). The date of mailing of the notice will be 
presumed to be the same as the date stamped on the letter of 
notification. The Board may dismiss any case over which it determines it 
does not have jurisdiction.
    (e) Application of 38 CFR 19.9 and 20.1304. Section 19.9 of this 
chapter shall not apply to proceedings to determine the Board's own 
jurisdiction. However, the Board may remand a case to an agency of 
original jurisdiction in order to obtain assistance in securing evidence 
of jurisdictional facts. The time restrictions on requesting a hearing 
and submitting additional evidence in Sec. 20.1304 of this part do not 
apply to

[[Page 76]]

a hearing requested, or evidence submitted, under paragraph (d) of this 
section.

(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)

[57 FR 4109, Feb. 3, 1992, as amended at 66 FR 53339, Oct. 22, 2001]



Sec. 20.102  Rule 102. Delegation of authority--Rules of Practice.

    (a) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rule 900(c) (Sec. 20.900(c) of this 
part) MAY ALSO be exercised by the Vice Chairman of the Board.
    (b) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rules 608(b), 717(d), and 1001(c) 
(Sec. Sec. 20.608(b), 20.717(d), and 20.1001(c) of this part) may also 
be exercised by the Vice Chairman of the Board and by Deputy Vice 
Chairmen of the Board.
    (c) The authority exercised by the Chairman of the Board of 
Veterans' Appeals described in Rules 2 and 606(e) (Sec. Sec. 20.2, and 
20.606(e) of this part), may also be exercised by the Vice Chairman of 
the Board; by Deputy Vice Chairmen of the Board; and, in connection with 
a proceeding or motion assigned to them by the Chairman, by a Member or 
Members of the Board.

(Authority: 38 U.S.C. 512(a), 7102, 7104)

[57 FR 4109, Feb. 3, 1992; 57 FR 20055, May 11, 1992; 57 FR 38443, Aug. 
25, 1992; 61 FR 20449, May 7, 1996]



Sec. Sec. 20.103-20.199  [Reserved]



             Subpart C_Commencement and Perfection of Appeal



Sec. 20.200  Rule 200. What constitutes an appeal.

    An appeal consists of a timely filed Notice of Disagreement in 
writing and, after a Statement of the Case has been furnished, a timely 
filed Substantive Appeal.

(Authority: 38 U.S.C. 7105)



Sec. 20.201  Rule 201. Notice of Disagreement.

    A written communication from a claimant or his or her representative 
expressing dissatisfaction or disagreement with an adjudicative 
determination by the agency of original jurisdiction and a desire to 
contest the result will constitute a Notice of Disagreement. While 
special wording is not required, the Notice of Disagreement must be in 
terms which can be reasonably construed as disagreement with that 
determination and a desire for appellate review. If the agency of 
original jurisdiction gave notice that adjudicative determinations were 
made on several issues at the same time, the specific determinations 
with which the claimant disagrees must be identified. For example, if 
service connection was denied for two disabilities and the claimant 
wishes to appeal the denial of service connection with respect to only 
one of the disabilities, the Notice of Disagreement must make that 
clear.

(Authority: 38 U.S.C. 7105)



Sec. 20.202  Rule 202. Substantive Appeal.

    A Substantive Appeal consists of a properly completed VA Form 9, 
``Appeal to Board of Veterans' Appeals,'' or correspondence containing 
the necessary information. If the Statement of the Case and any prior 
Supplemental Statements of the Case addressed several issues, the 
Substantive Appeal must either indicate that the appeal is being 
perfected as to all of those issues or must specifically identify the 
issues appealed. The Substantive Appeal should set out specific 
arguments relating to errors of fact or law made by the agency of 
original jurisdiction in reaching the determination, or determinations, 
being appealed. To the extent feasible, the argument should be related 
to specific items in the Statement of the Case and any prior 
Supplemental Statements of the Case. The Board will construe such 
arguments in a liberal manner for purposes of determining whether they 
raise issues on appeal, but the Board may dismiss any appeal which fails 
to allege specific error of fact or law in the determination, or 
determinations, being appealed. The Board will not presume that an 
appellant agrees with any statement of fact contained in a Statement of 
the Case or a Supplemental Statement of the Case which is not 
specifically contested. Proper completion and filing of a Substantive 
Appeal are

[[Page 77]]

the last actions the appellant needs to take to perfect an appeal.

(Authority: 38 U.S.C. 7105(d)(3)-(5))

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]



Sec. 20.203  [Reserved]



Sec. 20.204  Rule 204. Withdrawal of Appeal.

    (a) When and by whom filed. Only an appellant, or an appellant's 
authorized representative, may withdraw an appeal. An appeal may be 
withdrawn as to any or all issues involved in the appeal.
    (b) Filing. (1) Form and content. Except for appeals withdrawn on 
the record at a hearing, appeal withdrawals must be in writing. They 
must include the name of the veteran, the name of the claimant or 
appellant if other than the veteran (e.g., a veteran's survivor, a 
guardian, or a fiduciary appointed to receive VA benefits on an 
individual's behalf), the applicable Department of Veterans Affairs file 
number, and a statement that the appeal is withdrawn. If the appeal 
involves multiple issues, the withdrawal must specify that the appeal is 
withdrawn in its entirety, or list the issue(s) withdrawn from the 
appeal.
    (2) Where to file. Appeal withdrawals should be filed with the 
agency of original jurisdiction until the appellant or representative 
filing the withdrawal receives notice that the appeal has been 
transferred to the Board. Thereafter, file the withdrawal at the 
following address: Director, Management and Administration (014), Board 
of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
    (3) When effective. Until the appeal is transferred to the Board, an 
appeal withdrawal is effective when received by the agency of original 
jurisdiction. Thereafter, it is not effective until received by the 
Board. A withdrawal received by the Board after the Board issues a final 
decision under Rule 1100(a) (Sec. 20.1100(a) of this part) will not be 
effective.
    (c) Effect of filing. Withdrawal of an appeal will be deemed a 
withdrawal of the Notice of Disagreement and, if filed, the Substantive 
Appeal, as to all issues to which the withdrawal applies. Withdrawal 
does not preclude filing a new Notice of Disagreement and, after a 
Statement of the Case is issued, a new Substantive Appeal, as to any 
issue withdrawn, provided such filings would be timely under these rules 
if the appeal withdrawn had never been filed.

(Authority: 38 U.S.C. 7105(b) and (d))

[68 FR 13236, Mar. 19, 2003]



Sec. Sec. 20.205-20.299  [Reserved]



                            Subpart D_Filing



Sec. 20.300  Rule 300. Place of filing Notice of Disagreement and 
Substantive Appeal.

    The Notice of Disagreement and Substantive Appeal must be filed with 
the Department of Veterans Affairs office from which the claimant 
received notice of the determination being appealed unless notice has 
been received that the applicable Department of Veterans Affairs records 
have been transferred to another Department of Veterans Affairs office. 
In that case, the Notice of Disagreement or Substantive Appeal must be 
filed with the Department of Veterans Affairs office which has assumed 
jurisdiction over the applicable records.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))



Sec. 20.301  Rule 301. Who can file an appeal.

    (a) Persons authorized. A Notice of Disagreement and/or a 
Substantive Appeal may be filed by a claimant personally, or by his or 
her representative if a proper Power of Attorney or declaration of 
representation, as applicable, is on record or accompanies such Notice 
of Disagreement or Substantive Appeal.
    (b) Claimant rated incompetent by Department of Veterans Affairs or 
under disability and unable to file. If an appeal is not filed by a 
person listed in paragraph (a) of this section, and the claimant is 
rated incompetent by the Department of Veterans Affairs or has a 
physical, mental, or legal disability which prevents the filing of an 
appeal on his or her own behalf, a Notice of

[[Page 78]]

Disagreement and a Substantive Appeal may be filed by a fiduciary 
appointed to manage the claimant's affairs by the Department of Veterans 
Affairs or a court, or by a person acting as next friend if the 
appointed fiduciary fails to take needed action or no fiduciary has been 
appointed.
    (c) Claimant under disability and able to file. Notwithstanding the 
fact that a fiduciary may have been appointed for a claimant, an appeal 
filed by a claimant will be accepted.

(Authority: 38 U.S.C. 7105(b)(2))



Sec. 20.302  Rule 302. Time limit for filing Notice of Disagreement, 
Substantive Appeal, and response to Supplemental Statement of the Case.

    (a) Notice of Disagreement. Except in the case of simultaneously 
contested claims, a claimant, or his or her representative, must file a 
Notice of Disagreement with a determination by the agency of original 
jurisdiction within one year from the date that that agency mails notice 
of the determination to him or her. Otherwise, that determination will 
become final. The date of mailing the letter of notification of the 
determination will be presumed to be the same as the date of that letter 
for purposes of determining whether an appeal has been timely filed.


(Authority: 38 U.S.C. 7105(b)(1))

    (b) Substantive Appeal. (1) General. Except in the case of 
simultaneously contested claims, a Substantive Appeal must be filed 
within 60 days from the date that the agency of original jurisdiction 
mails the Statement of the Case to the appellant, or within the 
remainder of the 1-year period from the date of mailing of the 
notification of the determination being appealed, whichever period ends 
later. The date of mailing of the Statement of the Case will be presumed 
to be the same as the date of the Statement of the Case and the date of 
mailing the letter of notification of the determination will be presumed 
to be the same as the date of that letter for purposes of determining 
whether an appeal has been timely filed.
    (2) Special rule in certain cases where additional evidence is 
submitted. Except in the case of simultaneously contested claims, if (i) 
a claimant submits additional evidence within 1 year of the date of 
mailing of the notification of the determination being appealed, and 
(ii) that evidence requires, in accordance with Sec. 19.31 of this 
title, that the claimant be furnished a Supplemental Statement of the 
Case, then the time to submit a Substantive Appeal shall end not sooner 
than 60 days after such Supplemental Statement of the Case is mailed to 
the appellant, even if the 60-day period extends beyond the expiration 
of the 1-year appeal period.


(Authority: 38 U.S.C. 7105 (b)(1), (d)(3).)

    (c) Response to Supplemental Statement of the Case. Where a 
Supplemental Statement of the Case is furnished, a period of 60 days 
from the date of mailing of the Supplemental Statement of the Case will 
be allowed for response. The date of mailing of the Supplemental 
Statement of the Case will be presumed to be the same as the date of the 
Supplemental Statement of the Case for purposes of determining whether a 
response has been timely filed. Provided a Substantive Appeal has been 
timely filed in accordance with paragraph (b) of this section, the 
response to a Supplemental Statement of the Case is optional and is not 
required for the perfection of an appeal.


(Authority: 38 U.S.C. 7105(d)(3))

[57 FR 4109, Feb. 3, 1992; as amended at 66 FR 50318, Oct. 3, 2001; 68 
FR 64806, Nov. 17, 2003]



Sec. 20.303  Rule 303. Extension of time for filing Substantive Appeal 
and response to Supplemental Statement of the Case.

    An extension of the 60-day period for filing a Substantive Appeal, 
or the 60-day period for responding to a Supplemental Statement of the 
Case when such a response is required, may be granted for good cause. A 
request for such an extension must be in writing and must be made prior 
to expiration of the time limit for filing the Substantive Appeal or the 
response to the Supplemental Statement of the Case. The request for 
extension must be filed with the Department of Veterans Affairs office 
from which the claimant received notice of the determination

[[Page 79]]

being appealed, unless notice has been received that the applicable 
records have been transferred to another Department of Veterans Affairs 
office. A denial of a request for extension may be appealed to the 
Board.

(Authority: 38 U.S.C. 7105(d)(3))



Sec. 20.304  Rule 304. Filing additional evidence does not extend time 
limit for appeal.

    Except as provided in Rule 302(b) (Sec. 20.302(b) of this part), 
the filing of additional evidence after receipt of notice of an adverse 
determination does not extend the time limit for initiating or 
completing an appeal from that determination.

(Authority: 38 U.S.C. 7105.)

[57 FR 4109, Feb. 3, 1992; as amended at 66 FR 50318, Oct. 3, 2001]



Sec. 20.305  Rule 305. Computation of time limit for filing.

    (a) Acceptance of postmark date. When these Rules require that any 
written document be filed within a specified period of time, a response 
postmarked prior to expiration of the applicable time limit will be 
accepted as having been timely filed. In the event that the postmark is 
not of record, the postmark date will be presumed to be five days prior 
to the date of receipt of the document by the Department of Veterans 
Affairs. In calculating this 5-day period, Saturdays, Sundays and legal 
holidays will be excluded.
    (b) Computation of time limit. In computing the time limit for 
filing a written document, the first day of the specified period will be 
excluded and the last day included. Where the time limit would expire on 
a Saturday, Sunday, or legal holiday, the next succeeding workday will 
be included in the computation.

(Authority: 38 U.S.C. 7105)



Sec. 20.306  Rule 306. Legal holidays.

    For the purpose of Rule 305 (Sec. 20.305 of this part), the legal 
holidays, in addition to any other day appointed as a holiday by the 
President or the Congress of the United States, are as follows: New 
Year's Day--January 1; Inauguration Day--January 20 of every fourth year 
or, if the 20th falls on a Sunday, the next succeeding day selected for 
public observance of the inauguration; Birthday of Martin Luther King, 
Jr.--Third Monday in January; Washington's Birthday--Third Monday in 
February; Memorial Day--Last Monday in May; Independence Day--July 4; 
Labor Day--First Monday in September; Columbus Day--Second Monday in 
October; Veterans Day--November 11; Thanksgiving Day--Fourth Thursday in 
November; and Christmas Day--December 25. When a holiday occurs on a 
Saturday, the Friday immediately before is the legal public holiday. 
When a holiday occurs on a Sunday, the Monday immediately after is the 
legal public holiday.

(Authority: 5 U.S.C. 6103)



Sec. Sec. 20.307-20.399  [Reserved]



                    Subpart E_Administrative Appeals



Sec. 20.400  Rule 400. Action by claimant or representative on notification 
of administrative appeal.

    When an official of the Department of Veterans Affairs enters an 
administrative appeal, the claimant and his or her representative, if 
any, are notified and given a period of 60 days from the date of mailing 
of the letter of notification to join in the administrative appeal. The 
date of mailing of the letter of notification will be presumed to be the 
same as the date of the letter of notification. If the claimant, or the 
representative acting on his or her behalf, elects to join in the 
administrative appeal, it becomes a ``merged appeal'' and the rules 
governing an appeal initiated by a claimant are for application. The 
presentation of evidence or argument by the claimant or his or her 
representative in response to notification of the right to join in the 
administrative appeal will be construed as an election to join in the 
administrative appeal. If the claimant does not authorize the merger, he 
or she must hold such evidence or argument in abeyance until resolution 
of the administrative appeal.

(Authority: 38 U.S.C. 7106)

[[Page 80]]



Sec. 20.401  Rule 401. Effect of decision on administrative or merged 
appeal on claimant's appellate rights.

    (a) Merged appeal. If the administrative appeal is merged, the 
appellate decision on the merged appeal will constitute final 
disposition of the claimant's appellate rights.
    (b) Appeal not merged. If the claimant does not authorize merger, 
normal appellate rights on the same issue are preserved, and the 
Chairman will assign the proceeding to a Member or panel of Members of 
the Board who did not make the decision on the administrative appeal. 
The period of time from the date of notification to the claimant of the 
administrative appeal to the date of the Board's decision on the 
administrative appeal is not chargeable to the claimant for purposes of 
determining the time limit for perfecting his or her separate appeal.

(Authority: 38 U.S.C. 7106)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]



Sec. Sec. 20.402-20.499  [Reserved]



                Subpart F_Simultaneously Contested Claims



Sec. 20.500  Rule 500. Who can file an appeal in simultaneously contested 
claims.

    In a simultaneously contested claim, any claimant or representative 
of a claimant may file a Notice of Disagreement or Substantive Appeal 
within the time limits set out in Rule 501 (Sec. 20.501 of this part).

(Authority: 38 U.S.C. 7105(b)(2), 7105A)



Sec. 20.501  Rule 501. Time limits for filing Notice of Disagreement, 

Substantive Appeal, and response to Supplemental Statement of the 
Case in simultaneously contested claims.

    (a) Notice of Disagreement. In simultaneously contested claims, the 
Notice of Disagreement from the person adversely affected must be filed 
within 60 days from the date of mailing of the notification of the 
determination to him or her; otherwise, that determination will become 
final. The date of mailing of the letter of notification will be 
presumed to be the same as the date of that letter for purposes of 
determining whether a Notice of Disagreement has been timely filed.


(Authority: 38 U.S.C. 7105A(a))

    (b) Substantive Appeal. In the case of simultaneously contested 
claims, a Substantive Appeal must be filed within 30 days from the date 
of mailing of the Statement of the Case. The date of mailing of the 
Statement of the Case will be presumed to be the same as the date of the 
Statement of the Case for purposes of determining whether an appeal has 
been timely filed.


(Authority: 38 U.S.C. 7105A(b))

    (c) Supplemental Statement of the Case. Where a Supplemental 
Statement of the Case is furnished by the agency of original 
jurisdiction in a simultaneously contested claim, a period of 30 days 
from the date of mailing of the Supplemental Statement of the Case will 
be allowed for response, but the receipt of a Supplemental Statement of 
the Case will not extend the time allowed for filing a Substantive 
Appeal as set forth in paragraph (b) of this section. The date of 
mailing of the Supplemental Statement of the Case will be presumed to be 
the same as the date of the Supplemental Statement of the Case for 
purposes of determining whether a response has been timely filed. 
Provided a Substantive Appeal has been timely filed in accordance with 
paragraph (b) of this section, the response to a Supplemental Statement 
of the Case is optional and is not required for the perfection of an 
appeal.


(Authority: 38 U.S.C. 7105(d)(3), 7105A(b))

[57 FR 4109, Feb. 3, 1992, as amended at 68 FR 64806, Nov. 17, 2003]



Sec. 20.502  Rule 502. Time limit for response to appeal by another 
contesting party in a simultaneously contested claim.

    A party to a simultaneously contested claim may file a brief or 
argument in answer to a Substantive Appeal filed by another contesting 
party. Any such brief or argument must be filed with the agency of 
original jurisdiction within 30 days from the date the content of the 
Substantive Appeal

[[Page 81]]

is furnished as provided in Sec. 19.102 of this chapter. Such content 
will be presumed to have been furnished on the date of the letter that 
accompanies the content.

(Authority: 38 U.S.C. 7105A(b))

[66 FR 60153, Dec. 3, 2001]



Sec. 20.503  Rule 503. Extension of time for filing a Substantive Appeal 
in simultaneously contested claims.

    An extension of the 30-day period to file a Substantive Appeal in 
simultaneously contested claims may be granted if good cause is shown. 
In granting an extension, consideration will be given to the interests 
of the other parties involved. A request for such an extension must be 
in writing and must be made prior to expiration of the time limit for 
filing the Substantive Appeal.

(Authority: 38 U.S.C. 7105A(b))



Sec. 20.504  Rule 504. Notices sent to last addresses of record in 
simultaneously contested claims.

    Notices in simultaneously contested claims will be forwarded to the 
last address of record of the parties concerned and such action will 
constitute sufficient evidence of notice.

(Authority: 38 U.S.C. 7105A(b))



Sec. Sec. 20.505-20.599  [Reserved]



                        Subpart G_Representation

    Cross-Reference: In cases involving access to medical records 
relating to drug abuse, alcoholism, alcohol abuse, sickle cell anemia, 
or infection with the human immunodeficiency virus, also see 38 U.S.C. 
7332.



Sec. 20.600  Rule 600. Right to representation.

    An appellant will be accorded full right to representation in all 
stages of an appeal by a recognized organization, attorney, agent, or 
other authorized person.

(Authority: 38 U.S.C. 5901-5905, 7105(a))



Sec. 20.601  Rule 601. Only one representative recognized.

    A specific claim may be prosecuted at any one time by only one 
recognized organization, attorney, agent or other person properly 
designated to represent the appellant.

(Authority: 38 U.S.C. 7105(b)(2))



Sec. 20.602  Rule 602. Representation by recognized organizations.

    In order to designate a recognized organization as his or her 
representative, an appellant must execute a VA Form 21-22, ``Appointment 
of Veterans Service Organization as Claimant's Representative.'' This 
form gives the organization power of attorney to represent the 
appellant. The designation will be effective when it is received by the 
agency of original jurisdiction or, if the appellate record has been 
certified to the Board for review, by the Board of Veterans' Appeals. A 
properly filed designation made prior to appeal will continue to be 
honored, unless it has been revoked by the appellant or unless the 
representative has properly withdrawn.

(Authority: 38 U.S.C. 7105(b)(2))



Sec. 20.603  Rule 603. Representation by attorneys-at-law.

    (a) Designation. An attorney-at-law may be designated as an 
appellant's representative through a properly executed VA Form 22a, 
``Appointment of Attorney or Agent as Claimant's Representative.'' This 
form gives the attorney power of attorney to represent the appellant. In 
lieu thereof, an attorney may state in writing on his or her letterhead 
that he or she is authorized to represent the appellant in order to have 
access to information in the appellant's file pertinent to the 
particular claim presented. For an attorney to have complete access to 
all information in an individual's records, the attorney must provide a 
signed consent from the appellant or the appellant's guardian. Such 
consent shall be equivalent to an executed power of attorney. The 
designation must be of an individual attorney, rather than a firm or 
partnership. An appellant may limit an attorney's right to act as his or 
her representative in an appeal to representation with respect to a 
specific claim for one or more specific benefits by noting the 
restriction in the written designation. Unless specifically

[[Page 82]]

noted to the contrary, however, designations of an attorney as a 
representative will extend to all matters with respect to claims for 
benefits under laws administered by the Department of Veterans Affairs. 
Designations are effective when they are received by the agency of 
original jurisdiction or, if the appellate record has been certified to 
the Board for review, by the Board of Veterans' Appeals. A properly 
filed designation made prior to appeal will continue to be honored, 
unless it has been revoked or unless the representative has properly 
withdrawn. Legal interns, law students, and paralegals may not be 
independently accredited to represent appellants under this Rule.
    (b) Attorneys employed by recognized organization. A recognized 
organization may employ an attorney-at-law to represent an appellant. If 
the attorney so employed is not an accredited representative of the 
recognized organization, the signed consent of the appellant for the 
substitution of representatives must be obtained and submitted to the 
agency of original jurisdiction or, if the appellate record has been 
certified to the Board for review, to the Board of Veterans' Appeals. 
When the signed consent is received by the agency of original 
jurisdiction or the Board, as applicable, the attorney will be 
recognized as the appellant's representative in lieu of the 
organization.
    (c) Participation of associated or affiliated attorneys. With the 
specific written consent of the appellant, an attorney associated or 
affiliated with the appellant's attorney of record, including an 
attorney employed by the same legal services office as the attorney of 
record, may assist in representation of the appellant and may have 
access to the appellant's Department of Veterans Affairs records to the 
same extent as the attorney of record. Unless revoked by the appellant, 
such consent will remain effective in the event the original attorney of 
record is replaced by another attorney who is a member of the same law 
firm or an attorney employed by the same legal services office. The 
consent must include the name of the veteran; the name of the appellant 
if other than the veteran (e.g., a veteran's survivor, a guardian, or a 
fiduciary appointed to receive VA benefits on an individual's behalf); 
the applicable Department of Veterans Affairs file number; the name of 
the attorney of record; the consent of the appellant for the use of the 
services of the associated or affiliated attorney and for that 
individual to have access to applicable Department of Veterans Affairs 
records; and the name of the associated or affiliated attorney who will 
be assisting in the case. The consent must be filed with the agency of 
original jurisdiction or, if the appellate record has been certified to 
the Board for review, with the Board of Veterans' Appeals. The presiding 
Member at a hearing on appeal may require that not more than one 
attorney participate in the examination of any one witness or impose 
other reasonable limitations to ensure orderly conduct of the hearing.

(Authority: 38 U.S.C. 5901, 5904)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]



Sec. 20.604  Rule 604. Representation by agents.

    (a) Designation. The designation of an agent will be by a duly 
executed power of attorney, VA Form 22a, ``Appointment of Attorney or 
Agent as Claimant's Representative,'' or its equivalent. The designation 
must be of an individual, rather than a firm or partnership. The 
designation will be effective when it is received by the agency of 
original jurisdiction or, if the appellate record has been certified to 
the Board for review, by the Board of Veterans' Appeals. A properly 
filed designation made prior to appeal will continue to be honored, 
unless it has been revoked or unless the representative has properly 
withdrawn.
    (b) Admission to practice. The provisions of 38 U.S.C. 5904 and of 
Sec. 14.629(b) of this chapter are applicable to the admission of 
agents to practice before the Department of Veterans Affairs. Authority 
for making determinations concerning admission to practice rests with 
the General Counsel of the Department of Veterans Affairs, and any 
questions concerning admissions to practice should be addressed to: 
Office

[[Page 83]]

of the General Counsel (022A), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420.

(Authority: 38 U.S.C. 5904)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]



Sec. 20.605  Rule 605. Other persons as representative.

    (a) Scope of rule. This section applies to representation other than 
by a recognized organization, an agent admitted to practice before the 
Department of Veterans Affairs, or an attorney-at-law.
    (b) Who may act as representative. Any competent person may be 
recognized as a representative for a particular claim, unless that 
person has been barred from practice before the Department of Veterans 
Affairs.
    (c) Designation. The designation of an individual to act as an 
appellant's representative may be made by executing a VA Form 22a, 
``Appointment of Attorney or Agent as Claimant's Representative.'' This 
form gives the individual power of attorney to represent the appellant 
in all matters pertaining to the presentation and prosecution of claims 
for any and all benefits under laws administered by the Department of 
Veterans Affairs. In lieu of using the form, the designation may be by a 
written document signed by both the appellant and the individual 
representative, which may be in the form of a letter, which authorizes a 
named individual to act as the appellant's representative only with 
respect to a specific claim involving one or more specific benefits. The 
document must include the name of the veteran; the name of the appellant 
if other than the veteran (e.g., a veteran's survivor, a guardian, or a 
fiduciary appointed to receive VA benefits on an individual's behalf); 
the applicable Department of Veterans Affairs file number; the 
appellant's consent for the individual representative to have access to 
his or her Department of Veterans Affairs records; the name of the 
individual representative; a description of the specific claim for 
benefits to which the designation of representation applies; and a 
certification that no compensation will be charged or paid for the 
individual representative's services. The designation, in either form, 
must be filed with the agency of original jurisdiction or, if the 
appellate record has been certified to the Board for review, with the 
Board of Veterans' Appeals. The designation will be effective when it is 
received by the agency of original jurisdiction or, if the appellate 
record has been certified to the Board for review, by the Board of 
Veterans' Appeals. A properly filed designation made prior to appeal 
will continue to be honored, unless it has been revoked or unless the 
representative has properly withdrawn.
    (d) Representation of more than one appellant. An individual 
recognized as an appellant's representative under this Rule may 
represent only one appellant. If an individual has been recognized as a 
representative for one appellant and wishes to represent another 
appellant, he or she must obtain permission to do so from the Office of 
the General Counsel as provided in Sec. 14.630 of this chapter.

(Authority: 38 U.S.C. 5903)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996]



Sec. 20.606  Rule 606. Legal interns, law students and paralegals.

    (a) Consent of appellant. If it is contemplated that a legal intern, 
law student, or paralegal will assist in the appeal, written consent 
must be obtained from the appellant. The written consent must include 
the name of the veteran; the name of the appellant if other than the 
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary 
appointed to receive VA benefits on an individual's behalf); the 
applicable Department of Veterans Affairs file number; the name of the 
attorney-at-law; the consent of the appellant for the use of the 
services of legal interns, law students, or paralegals and for such 
individuals to have access to applicable Department of Veterans Affairs 
records; and the names of the legal interns, law students, or paralegals 
who will be assisting in the case. In the case of appeals before the 
Board in Washington, DC, the signed consent must be submitted to: 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. In the case

[[Page 84]]

of hearings before a Member or Members of the Board at Department of 
Veterans field facilities, the consent must be presented to the 
presiding Member of the hearing as noted in paragraph (d). Unless 
revoked by the appellant, such consent will remain effective in the 
event the original attorney of record is replaced by another attorney 
who is a member of the same law firm or another attorney employed by the 
same legal services office.
    (b) Supervision. Legal interns, law students and paralegals must be 
under the direct supervision of a recognized attorney-at-law in order to 
prepare and present cases before the Board of Veterans' Appeals.
    (c) Hearings. Legal interns, law students and paralegals who desire 
to participate at a hearing before the Board in Washington, DC, must 
make advance arrangements with the Director, Management and 
Administration (01E) and submit written authorization from the attorney 
naming the individual who will be participating in the hearing. In the 
case of hearings before a Member or Members of the Board at Department 
of Veterans field facilities in the field, the attorney-at-law not less 
than 10 days prior to the scheduled hearing date must inform the office 
of the Department of Veterans Affairs official who gave notice of the 
Travel Board hearing date and time that the services of a legal intern, 
law student, or paralegal will be used at the hearing. At the same time, 
a prehearing conference with the presiding Member of the hearing must be 
requested. At the conference, the written consent of the appellant for 
the use of the services of such an individual required by paragraph (a) 
must be presented and agreement reached as to the individual's role in 
the hearing. Legal interns, law students or paralegals may not present 
oral arguments at hearings either in the field or in Washington, DC, 
unless the recognized attorney-at-law is present. Not more than two such 
individuals may make presentations at a hearing. The presiding Member at 
a hearing on appeal may require that not more than one such individual 
participate in the examination of any one witness or impose other 
reasonable limitations to ensure orderly conduct of the hearing.
    (d) Withdrawal of permission for legal interns, law students, and 
paralegals to assist in the presentation of an appeal. When properly 
designated, the attorney-at-law is the recognized representative of the 
appellant and is responsible for ensuring that an appeal is properly 
presented. Legal interns, law students, and paralegals are permitted to 
assist in the presentation of an appeal as a courtesy to the attorney-
at-law. Permission for a legal intern, law student, or paralegal to 
prepare and present cases before the Board may be withdrawn by the 
Chairman or presiding Member at any time if a lack of competence, 
unprofessional conduct, or interference with the appellate process is 
demonstrated by that individual.

(Authority: 38 U.S.C. 5904, 7105(b)(2))

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996; 61 FR 
29028, June 7, 1996]



Sec. 20.607  Rule 607. Revocation of a representative's authority to act.

    Subject to the provisions of Sec. 20.1304 of this part, an 
appellant may revoke a representative's authority to act on his or her 
behalf at any time, irrespective of whether another representative is 
concurrently designated. Written notice of the revocation must be given 
to the agency of original jurisdiction or, if the appellate record has 
been certified to the Board for review, to the Board of Veterans' 
Appeals. The revocation is effective when notice of the revocation is 
received by the agency of original jurisdiction or the Board, as 
applicable. An appropriate designation of a new representative will 
automatically revoke any prior designation of representation. If an 
appellant has limited a designation of representation by an attorney-at-
law to a specific claim under the provisions of Rule 603, paragraph (a) 
(Sec. 20.603(a) of this part), or has limited a designation of 
representation by an individual to a specific claim under the provisions 
of Rule 605, paragraph (c) (Sec. 20.605(c) of this part), such specific 
authority constitutes a revocation of an existing representative's 
authority to act only with respect to, and during the pendency of, that 
specific

[[Page 85]]

claim. Following the final determination of that claim, the existing 
representative's authority to act will be automatically restored in 
full, unless otherwise revoked.

(Authority: 38 U.S.C. 5901-5904)



Sec. 20.608  Rule 608. Withdrawal of services by a representative.

    (a) Withdrawal of services prior to certification of an appeal. A 
representative may withdraw services as representative in an appeal at 
any time prior to certification of the appeal to the Board of Veterans' 
Appeals by the agency of original jurisdiction. The representative must 
give written notice of such withdrawal to the appellant and to the 
agency of original jurisdiction. The withdrawal is effective when notice 
of the withdrawal is received by the agency of original jurisdiction.
    (b) Withdrawal of services after certification of an appeal--(1) 
Applicability. The restrictions on a representative's right to withdraw 
contained in this paragraph apply only to those cases in which the 
representative has previously agreed to act as representative in an 
appeal. In addition to express agreement, orally or in writing, such 
agreement shall be presumed if the representative makes an appearance in 
the case by acting on an appellant's behalf before the Board in any way 
after the appellant has designated the representative as such as 
provided in Sec. Sec. 20.602 through 20.605 of this part. The preceding 
sentence notwithstanding, an appearance in an appeal solely to notify 
the Board that a designation of representation has not been accepted 
will not be presumed to constitute such consent.
    (2) Procedures. After the agency of original jurisdiction has 
certified an appeal to the Board of Veterans' Appeals, a representative 
may not withdraw services as representative in the appeal unless good 
cause is shown on motion. Good cause for such purposes is the extended 
illness or incapacitation of an agent admitted to practice before the 
Department of Veterans Affairs, an attorney-at-law, or other individual 
representative; failure of the appellant to cooperate with proper 
preparation and presentation of the appeal; or other factors which make 
the continuation of representation impossible, impractical, or 
unethical. Such motions must be in writing and must include the name of 
the veteran, the name of the claimant or appellant if other than the 
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary 
appointed to receive VA benefits on an individual's behalf), the 
applicable Department of Veterans Affairs file number, and the reason 
why withdrawal should be permitted, and a signed statement certifying 
that a copy of the motion was sent by first-class mail, postage prepaid, 
to the appellant, setting forth the address to which the copy was 
mailed. Such motions should not contain information which would violate 
privileged communications or which would otherwise be unethical to 
reveal. Such motions must be filed at the following address: Office of 
the Senior Deputy Vice Chairman (012), Board of Veterans' Appeals, 810 
Vermont Avenue, NW., Washington, DC 20420. The appellant may file a 
response to the motion with the Board at the same address not later than 
30 days following receipt of the copy of the motion and must include a 
signed statement certifying that a copy of the response was sent by 
first-class mail, postage prepaid, to the representative, setting forth 
the address to which the copy was mailed.

(Authority: 38 U.S.C. 5901-5904, 7105(a))

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20450, May 7, 1996; 69 FR 
21069, Apr. 20, 2004]



Sec. 20.609  Rule 609. Payment of representative's fees in proceedings 

before Department of Veterans Affairs field personnel and before the 
Board of Veterans' Appeals.

    (a) Applicability of rule. The provisions of this section apply to 
the services of representatives with respect to benefits under laws 
administered by the Department of Veterans Affairs in all proceedings 
before Department of Veterans Affairs field personnel or before the 
Board of Veterans' Appeals regardless of whether an appeal has been 
initiated.
    (b) Who may charge fees for representation. Only agents and 
attorneys-at-law

[[Page 86]]

may receive fees from claimants or appellants for their services. 
Recognized organizations (including their accredited representatives 
when acting as such) and individuals recognized pursuant to Rule 605 
(Sec. 20.605 of this part) are not permitted to receive fees. An 
attorney-at-law or agent who may also be an accredited representative of 
a recognized organization may not receive such fees unless he or she has 
been properly designated as representative in accordance with Rule 
603(a) or Rule 604(a) (Sec. 20.603(a) or Sec. 20.604(a) of this part) 
in his or her individual capacity.
    (c) Circumstances under which fees may be charged. (1) General. 
Except as noted in paragraph (d) of this section, attorneys-at-law and 
agents may charge claimants or appellants for their services only if 
both of the following conditions have been met:
    (i) A final decision has been promulgated by the Board of Veterans' 
Appeals with respect to the issue, or issues, involved; and
    (ii) The attorney-at-law or agent was retained not later than one 
year following the date that the decision by the Board of Veterans' 
Appeals with respect to the issue, or issues, involved was promulgated. 
(This condition will be considered to have been met with respect to all 
successor attorneys-at-law or agents acting in the continuous 
prosecution of the same matter if a predecessor was retained within the 
required time period.)
    (2) Clear and unmistakable error cases. For the purposes of this 
section, in the case of a motion under subpart O of this part (relating 
to requests for revision of prior Board decisions on the grounds of 
clear and unmistakable error), the ``issue'' referred to in this 
paragraph (c) shall have the same meaning as ``issue'' in Rule 1401(a) 
(Sec. 20.1401(a) of this part).
    (d) Exceptions--(1) Chapter 37 loans. With respect to services of 
agents and attorneys provided after October 9, 1992, a reasonable fee 
may be charged or paid in connection with any proceeding in a case 
arising out of a loan made, guaranteed, or insured under chapter 37, 
United States Code, even though the conditions set forth in paragraph 
(c) of this section are not met.
    (2) Payment of fee by disinterested third party. (i) An attorney-at-
law or agent may receive a fee or salary from an organization, 
governmental entity, or other disinterested third party for 
representation of a claimant or appellant even though the conditions set 
forth in paragraph (c) of this section have not been met. In no such 
case may the attorney or agent charge a fee which is contingent, in 
whole or in part, on whether the matter is resolved in a manner 
favorable to the claimant or appellant.
    (ii) For purposes of this part, a person shall be presumed not to be 
disinterested if that person is the spouse, child, or parent of the 
claimant or appellant, or if that person resides with the claimant or 
appellant. This presumption may be rebutted by clear and convincing 
evidence that the person in question has no financial interest in the 
success of the claim.
    (iii) The provisions of paragraph (g) of this section (relating to 
fee agreements) shall apply to all payments or agreements to pay 
involving disinterested third parties. In addition, the agreement shall 
include or be accompanied by the following statement, signed by the 
attorney or agent: ``I certify that no agreement, oral or otherwise, 
exists under which the claimant or appellant will provide anything of 
value to the third-party payer in this case in return for payment of my 
fee or salary, including, but not limited to, reimbursement of any fees 
paid.''.
    (e) Fees permitted. Fees permitted for services of an attorney-at-
law or agent admitted to practice before the Department of Veterans 
Affairs must be reasonable. They may be based on a fixed fee, hourly 
rate, a percentage of benefits recovered, or a combination of such 
bases. Factors considered in determining whether fees are reasonable 
include:
    (1) The extent and type of services the representative performed;
    (2) The complexity of the case;
    (3) The level of skill and competence required of the representative 
in giving the services;
    (4) The amount of time the representative spent on the case;

[[Page 87]]

    (5) The results the representative achieved, including the amount of 
any benefits recovered;
    (6) The level of review to which the claim was taken and the level 
of the review at which the representative was retained;
    (7) Rates charged by other representatives for similar services; and
    (8) Whether, and to what extent, the payment of fees is contingent 
upon the results achieved.
    (f) Presumption of reasonableness. Fees which total no more than 20 
percent of any past-due benefits awarded, as defined in Rule 20.3(n) 
(Sec. 20.3(n) of this part), will be presumed to be reasonable.
    (g) Fee agreements. All agreements for the payment of fees for 
services of attorneys-at-law and agents (including agreements involving 
fees or salary paid by an organization, governmental entity or other 
disinterested third party) must be in writing and signed by both the 
claimant or appellant and the attorney-at-law or agent. The agreement 
must include the name of the veteran, the name of the claimant or 
appellant if other than the veteran, the name of each disinterested 
third-party payer (see paragraph (d)(2) of this section), the applicable 
Department of Veterans Affairs file number, and the specific terms under 
which the amount to be paid for the services of the attorney-at-law or 
agent will be determined. A copy of the agreement must be filed with the 
Board of Veterans' Appeals within 30 days of its execution by mailing 
the copy to the following address: Office of the Senior Deputy Vice 
Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW, 
Washington, DC 20420.
    (h) Payment of fees by Department of Veterans Affairs directly to an 
attorney-at-law from past-due benefits. (1) Subject to the requirements 
of the other paragraphs of this section, including paragraphs (c) and 
(e), the claimant or appellant and an attorney-at-law may enter into a 
fee agreement providing that payment for the services of the attorney-
at-law will be made directly to the attorney-at-law by the Department of 
Veterans Affairs out of any past-due benefits awarded as a result of a 
successful appeal to the Board of Veterans' Appeals or an appellate 
court or as a result of a reopened claim before the Department following 
a prior denial of such benefits by the Board of Veterans' Appeals or an 
appellate court. Such an agreement will be honored by the Department 
only if the following conditions are met:
    (i) The total fee payable (excluding expenses) does not exceed 20 
percent of the total amount of the past-due benefits awarded,
    (ii) The amount of the fee is contingent on whether or not the claim 
is resolved in a manner favorable to the claimant or appellant, and
    (iii) The award of past-due benefits results in a cash payment to a 
claimant or an appellant from which the fee may be deducted. (An award 
of past-due benefits will not always result in a cash payment to a 
claimant or an appellant. For example, no cash payment will be made to 
military retirees unless there is a corresponding waiver of retirement 
pay. (See 38 U.S.C. 5304(a) and Sec. 3.750 et seq. of this chapter.))
    (2) For purposes of this paragraph, a claim will be considered to 
have been resolved in a manner favorable to the claimant or appellant if 
all or any part of the relief sought is granted.
    (3) For purposes of this paragraph, ``past-due benefits'' means a 
nonrecurring payment resulting from a benefit, or benefits, granted on 
appeal or awarded on the basis of a claim reopened after a denial by the 
Board of Veterans' Appeals or the lump sum payment which represents the 
total amount of recurring cash payments which accrued between the 
effective date of the award, as determined by applicable laws and 
regulations, and the date of the grant of the benefit by the agency of 
original jurisdiction, the Board of Veterans' Appeals, or an appellate 
court.
    (i) When the benefit granted on appeal, or as the result of the 
reopened claim, is service connection for a disability, the ``past-due 
benefits'' will be based on the initial disability rating assigned by 
the agency of original jurisdiction following the award of service 
connection. The sum will equal the payments accruing from the effective

[[Page 88]]

date of the award to the date of the initial disability rating decision. 
If an increased evaluation is subsequently granted as the result of an 
appeal of the disability evaluation initially assigned by the agency of 
original jurisdiction, and if the attorney-at-law represents the 
claimant or appellant in that phase of the claim, the attorney-at-law 
will be paid a supplemental payment based upon the increase granted on 
appeal, to the extent that the increased amount of disability is found 
to have existed between the initial effective date of the award 
following the grant of service connection and the date of the rating 
action implementing the appellate decision granting the increase.
    (ii) Unless otherwise provided in the fee agreement between the 
claimant or appellant and the attorney-at-law, the attorney-at-law's 
fees will be determined on the basis of the total amount of the past-due 
benefits even though a portion of those benefits may have been 
apportioned to the claimant's or appellant's dependents.
    (iii) If an award is made as the result of favorable action with 
respect to several issues, the past-due benefits will be calculated only 
on the basis of that portion of the award which results from action 
taken on issues concerning which the criteria in paragraph (c) of this 
section have been met.
    (4) In addition to filing a copy of the fee agreement with the Board 
of Veterans' Appeals as required by paragraph (g) of this section, the 
attorney-at-law must notify the agency of original jurisdiction within 
30 days of the date of execution of the agreement of the existence of an 
agreement providing for the direct payment of fees out of any benefits 
subsequently determined to be past due and provide that agency with a 
copy of the fee agreement.
    (i) Motion for review of fee agreement. The Board of Veterans' 
Appeals may review a fee agreement between a claimant or appellant and 
an attorney-at-law or agent upon its own motion or upon the motion of 
any party to the agreement and may order a reduction in the fee called 
for in the agreement if it finds that the fee is excessive or 
unreasonable in light of the standards set forth in paragraph (e) of 
this section. Such motions must be in writing and must include the name 
of the veteran, the name of the claimant or appellant if other than the 
veteran, and the applicable Department of Veterans Affairs file number. 
Such motions must set forth the reason, or reasons, why the fee called 
for in the agreement is excessive or unreasonable; must be accompanied 
by all evidence the moving party desires to submit; and must include a 
signed statement certifying that a copy of the motion and any evidence 
was sent by first-class mail, postage prepaid, to each other party to 
the agreement, setting forth the address to which each such copy was 
mailed. Such motions (other than motions by the Board) must be filed at 
the following address: Office of the Senior Deputy Vice Chairman (012), 
Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 
20420. The other parties may file a response to the motion, with any 
accompanying evidence, with the Board at the same address not later than 
30 days following the date of receipt of the copy of the motion and must 
include a signed statement certifying that a copy of the response and 
any evidence was sent by first-class mail, postage prepaid, to each 
other party to the agreement, setting forth the address to which each 
such copy was mailed. Once there has been a ruling on the motion, an 
order shall issue which will constitute the final decision of the Board 
with respect to the motion. If a reduction in the fee is ordered, the 
attorney or agent must credit the account of the claimant or appellant 
with the amount of the reduction and refund any excess payment on 
account to the claimant or appellant not later than the expiration of 
the time within which the ruling may be appealed to the United States 
Court of Appeals for Veterans Claims.
    (j) In addition to whatever other penalties may be prescribed by law 
or regulation, failure to comply with the requirements of this section 
may result in proceedings under Sec. 14.633 of this chapter to 
terminate the attorney's or

[[Page 89]]

agent's right to practice before the Department of Veterans Affairs and 
the Board of Veterans' Appeals.

(Authority: 38 U.S.C. 5902, 5904, 5905)

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992; 59 
FR 25330, May 16, 1994; 64 FR 2138, Jan. 13, 1999; 65 FR 14472, Mar. 17, 
2000; 67 FR 36104, May 23, 2002; 67 FR 49600, July 31, 2002]



Sec. 20.610  Rule 610. Payment of representative's expenses in proceedings 

before Department of Veterans Affairs field personnel and before the Board 
of Veterans' Appeals.

    (a) Applicability of rule. The provisions of this section apply to 
the services of representatives with respect to benefits under laws 
administered by the Department of Veterans Affairs in all proceedings 
before Department of Veterans Affairs field personnel or before the 
Board of Veterans' Appeals regardless of whether an appeal has been 
initiated.
    (b) General. Any representative may be reimbursed for expenses 
incurred on behalf of a veteran or a veteran's dependents or survivors 
in the prosecution of a claim for benefits pending before the Department 
of Veterans Affairs. Whether such a representative will be reimbursed 
for expenses and the method of such reimbursement is a matter to be 
determined by the representative and the claimant or appellant. Expenses 
are not payable directly to the representative by the Department of 
Veterans Affairs out of benefits determined to be due to a claimant or 
appellant. Unless required in conjunction with a motion for the review 
of expenses filed in accordance with paragraph (d) of this section, 
agreements for the reimbursement of expenses need not be filed with the 
Department of Veterans Affairs or the Board of Veterans' Appeals.
    (c) Nature of expenses subject to reimbursement. ``Expenses'' 
include nonrecurring expenses incurred directly in the prosecution of a 
claim for benefits upon behalf of a claimant or appellant. Examples of 
such expenses include expenses for travel specifically to attend a 
hearing with respect to a particular claim, the cost of copies of 
medical records or other documents obtained from an outside source, the 
cost of obtaining the services of an expert witness or an expert 
opinion, etc. ``Expenses'' do not include normal overhead costs of the 
representative such as office rent, utilities, the cost of obtaining or 
operating office equipment or a legal library, salaries of the 
representative and his or her support staff, the cost of office 
supplies, etc.
    (d) Expense charges permitted; motion for review of expenses. 
Reimbursement for the expenses of a representative may be obtained only 
if the expenses are reasonable. The Board of Veterans' Appeals may 
review expenses charged by a representative upon the motion of the 
claimant or appellant and may order a reduction in the expenses charged 
if it finds that they are excessive or unreasonable. Such motions must 
be in writing and must include the name of the veteran, the name of the 
claimant or appellant if other than the veteran, and the applicable 
Department of Veterans Affairs file number. Such motions must 
specifically identify which expenses charged are unreasonable; must set 
forth the reason, or reasons, why such expenses are excessive or 
unreasonable; must be accompanied by all evidence the claimant or 
appellant desires to submit; and must include a signed statement 
certifying that a copy of the motion and any evidence was sent by first-
class mail, postage prepaid, to the representative. Such motions must be 
filed at the following address: Office of the Senior Deputy Vice 
Chairman (012), Board of Veterans' Appeals, 810 Vermont Avenue, NW, 
Washington, DC 20420. The representative may file a response to the 
motion, with any accompanying evidence, with the Board at the same 
address not later than 30 days following the date of receipt of the copy 
of the motion and must include a signed statement certifying that a copy 
of the response and any evidence was sent by first-class mail, postage 
prepaid, to the claimant or appellant, setting forth the address to 
which the copy was mailed. Factors considered in determining whether 
expenses are excessive or unreasonable include the complexity of the 
case, the potential

[[Page 90]]

extent of benefits recoverable, whether travel expenses are in keeping 
with expenses normally incurred by other representatives, etc. Once 
there has been a ruling on the motion, an order shall issue which will 
constitute the final decision of the Board with respect to the motion.
    (e) In addition to whatever other penalties may be prescribed by law 
or regulation, failure to comply with the requirements of this section 
may result in proceedings under Sec. 14.633 of this chapter to 
terminate the attorney's or agent's right to practice before the 
Department of Veterans Affairs and the Board of Veterans' Appeals.

(Authority: 38 U.S.C. 5904)

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992; 67 
FR 36105, May 23, 2002]



Sec. Sec. 20.612-20.699  [Reserved]



                      Subpart H_Hearings on Appeal



Sec. 20.700  Rule 700. General.

    (a) Right to a hearing. A hearing on appeal will be granted if an 
appellant, or an appellant's representative acting on his or her behalf, 
expresses a desire to appear in person.
    (b) Purpose of hearing. The purpose of a hearing is to receive 
argument and testimony relevant and material to the appellate issue. It 
is contemplated that the appellant and witnesses, if any, will be 
present. A hearing will not normally be scheduled solely for the purpose 
of receiving argument by a representative. Such argument should be 
submitted in the form of a written brief. Oral argument may also be 
submitted on audio cassette for transcription for the record in 
accordance with paragraph (d) of this section. Requests for appearances 
by representatives alone to personally present argument to Members of 
the Board may be granted if good cause is shown. Whether good cause has 
been shown will be determined by the presiding Member assigned to 
conduct the hearing.
    (c) Nonadversarial proceedings. Hearings conducted by the Board are 
ex parte in nature and nonadversarial. Parties to the hearing will be 
permitted to ask questions, including follow-up questions, of all 
witnesses but cross-examination will not be permitted. Proceedings will 
not be limited by legal rules of evidence, but reasonable bounds of 
relevancy and materiality will be maintained. The presiding Member may 
set reasonable time limits for the presentation of argument and may 
exclude documentary evidence, testimony, and/or argument which is not 
relevant or material to the issue, or issues, being considered or which 
is unduly repetitious.
    (d) Informal hearings. This term is used to describe situations in 
which the appellant cannot, or does not wish to, appear. In the absence 
of the appellant, the authorized representative may present oral 
arguments, not exceeding 30 minutes in length, to the Board on an audio 
cassette without personally appearing before the Board of Veterans 
Appeals. These arguments will be transcribed by Board personnel for 
subsequent review by the Member or Members to whom the appeal has been 
assigned for a determination. This procedure will not be construed to 
satisfy an appellant's request to appear in person.
    (e) Electronic hearings. When suitable facilities and equipment are 
available, an appellant may be scheduled for an electronic hearing. Any 
such hearing will be in lieu of a hearing held by personally appearing 
before a Member or panel of Members of the Board and shall be conducted 
in the same manner as, and considered the equivalent of, such a hearing. 
If an appellant declines to participate in an electronic hearing, the 
appellant's opportunity to participate in a hearing before the Board 
shall not be affected.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993; 61 
FR 20450, May 7, 1996]



Sec. 20.701  Rule 701. Who may present oral argument.

    Only the appellant and/or his or her authorized representative may 
appear and present argument in support of an appeal. At the request of 
an appellant, a Veterans Benefits Counselor of the Department of 
Veterans Affairs may

[[Page 91]]

present the appeal at a hearing before the Board of Veterans' Appeals.

(Authority: 38 U.S.C. 7102, 7105, 7107)

[58 FR 27935, May 12, 1993]



Sec. 20.702  Rule 702. Scheduling and notice of hearings conducted by the 
Board of Veterans' Appeals in Washington, DC.

    (a) General. To the extent that officials scheduling hearings for 
the Board of Veterans' Appeals determine that necessary physical 
resources and qualified personnel are available, hearings will be 
scheduled at the convenience of appellants and their representatives, 
with consideration of the travel distance involved. While a Statement of 
the Case should be prepared prior to the hearing, it is not a 
prerequisite for a hearing and an appellant may request that the hearing 
be scheduled prior to issuance of the Statement of the Case.


(Authority: 38 U.S.C. 7102, 7105(a), 7107)

    (b) Notification of hearing. When a hearing is scheduled, the person 
requesting it will be notified of its time and place, and of the fact 
that the Government may not assume any expense incurred by the 
appellant, the representative or witnesses attending the hearing.


(Authority: 38 U.S.C. 7102, 7105(a), 7107)

    (c) Requests for changes in hearing dates. (1) The appellant or the 
representative may request a different date for the hearing within 60 
days from the date of the letter of notification of the time and place 
of the hearing, or not later than two weeks prior to the scheduled 
hearing date, whichever is earlier. The request must be in writing, but 
the grounds for the request need not be stated. Only one such request 
for a change of the date of the hearing will be granted, subject to the 
interests of other parties if a simultaneously contested claim is 
involved. In the case of hearings to be conducted by the Board of 
Veterans' Appeals in Washington, DC, such requests for a new hearing 
date must be filed with: Director, Management and Administration (01E), 
Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 
20420.
    (2) After the period described in paragraph (c)(1) of this section 
has passed, or after one change in the hearing date is granted based on 
a request received during such period, the date of the hearing will 
become fixed. After a hearing date has become fixed, an extension of 
time for appearance at a hearing will be granted only for good cause, 
with due consideration of the interests of other parties if a 
simultaneously contested claim is involved. Examples of good cause 
include, but are not limited to, illness of the appellant and/or 
representative, difficulty in obtaining necessary records, and 
unavailability of a necessary witness. The motion for a new hearing date 
must be in writing and must explain why a new hearing date is necessary. 
If good cause is shown, the hearing will be rescheduled for the next 
available hearing date after the appellant or his or her representative 
gives notice that the contingency which gave rise to the request for 
postponement has been removed. Ordinarily, however, hearings will not be 
postponed more than 30 days. In the case of a hearing conducted by the 
Board of Veterans' Appeals in Washington, DC, whether good cause for 
establishing a new hearing date has been shown will be determined by the 
presiding Member assigned to conduct the hearing. In the case of 
hearings to be conducted by the Board of Veterans' Appeals in 
Washington, DC, the motion for a new hearing date must be filed with: 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.


(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)

    (d) Failure to appear for a scheduled hearing. If an appellant (or 
when a hearing only for oral argument by a representative has been 
authorized, the representative) fails to appear for a scheduled hearing 
and a request for postponement has not been received and granted, the 
case will be processed as though the request for a hearing had been 
withdrawn. No further request for a hearing will be granted in the same 
appeal unless such failure to appear was with good cause and the cause 
for the failure to appear arose under such circumstances that a timely 
request

[[Page 92]]

for postponement could not have been submitted prior to the scheduled 
hearing date. A motion for a new hearing date following a failure to 
appear must be in writing; must be submitted not more than 15 days 
following the original hearing date; and must set forth the reason, or 
reasons, for the failure to appear at the originally scheduled hearing 
and the reason, or reasons, why a timely request for postponement could 
not have been submitted. In the case of hearings to be conducted by the 
Board of Veterans' Appeals in Washington, DC, the motion must be filed 
with: Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. If good cause is 
shown, the hearing will be rescheduled for the next available hearing 
date after the appellant or his or her representative gives notice that 
the contingency which gave rise to the failure to appear has been 
removed. Ordinarily, however, hearings will not be postponed more than 
30 days. In the case of hearings before the Board of Veterans' Appeals 
in Washington, DC, whether good cause for such failure to appear has 
been established will be determined by the presiding Member assigned to 
conduct the hearing.


(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)

    (e) Withdrawal of hearing requests. A request for a hearing may be 
withdrawn by an appellant at any time before the date of the hearing. A 
request for a hearing may not be withdrawn by an appellant's 
representative without the consent of the appellant. In the case of 
hearings to be conducted by the Board of Veterans' Appeals in 
Washington, DC, the notice of withdrawal must be sent to: Director, 
Management and Administration (01E), Board of Veterans' Appeals, 810 
Vermont Avenue, NW., Washington, DC 20420.


(Authority: 38 U.S.C. 7102, 7105(a), 7107)

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993; 61 
FR 20450, May 7, 1996]



Sec. 20.703  Rule 703. When a hearing before the Board of Veterans' Appeals 
at a Department of Veterans Affairs field facility may be requested.

    An appellant, or an appellant's representative, may request a 
hearing before the Board of Veterans' Appeals at a Department of 
Veterans Affairs field facility when submitting the substantive appeal 
(VA Form 9) or anytime thereafter, subject to the restrictions in Rule 
1304 (Sec. 20.1304 of this part). Requests for such hearings before a 
substantive appeal has been filed will be rejected.


(Authority: 38 U.S.C. 7105(a), 7107)

[61 FR 43009, Aug. 20, 1996]



Sec. 20.704  Rule 704. Scheduling and notice of hearings conducted by the 

Board of Veterans' Appeals at Department of Veterans Affairs field 
facilities.

    (a) General. Hearings are conducted by a Member or Members of the 
Board of Veterans' Appeals during prescheduled visits to Department of 
Veterans Affairs facilities having adequate physical resources and 
personnel for the support of such hearings. Subject to paragraph (f) of 
this section, the hearings will be scheduled in the order specified in 
Sec. 19.75 of this chapter. Requests for such hearings must be 
submitted to the agency of original jurisdiction, in writing, and should 
not be submitted directly to the Board of Veterans' Appeals.
    (b) Notification of hearing. When a hearing is scheduled, the person 
requesting it will be notified of its time and place, and of the fact 
that the Government may not assume any expense incurred by the 
appellant, the representative or witnesses attending the hearing.
    (c) Requests for changes in hearing dates. Requests for a change in 
a hearing date may be made at any time up to two weeks prior to the 
scheduled date of the hearing if good cause is shown. Such requests must 
be in writing, must explain why a new hearing date is necessary, and 
must be filed with the office of the official of the Department of 
Veterans Affairs who

[[Page 93]]

signed the notice of the original hearing date. Examples of good cause 
include, but are not limited to, illness of the appellant and/or 
representative, difficulty in obtaining necessary records, and 
unavailability of a necessary witness. If good cause is shown, the 
hearing will be rescheduled for the next available hearing date after 
the appellant or his or her representative gives notice that the 
contingency which gave rise to the request for postponement has been 
removed. If good cause is not shown, the appellant and his or her 
representative will be promptly notified and given an opportunity to 
appear at the hearing as previously scheduled. If the appellant elects 
not to appear at the prescheduled date, the request for a hearing will 
be considered to have been withdrawn. In such cases, however, the record 
will be submitted for review by the Member who would have presided over 
the hearing. If the presiding Member determines that good cause has been 
shown, the hearing will be rescheduled for the next available hearing 
date after the contingency which gave rise to the request for 
postponement has been removed.
    (d) Failure to appear for a scheduled hearing. If an appellant (or 
when a hearing only for oral argument by a representative has been 
authorized, the representative) fails to appear for a scheduled hearing 
and a request for postponement has not been received and granted, the 
case will be processed as though the request for a hearing had been 
withdrawn. No further request for a hearing will be granted in the same 
appeal unless such failure to appear was with good cause and the cause 
for the failure to appear arose under such circumstances that a timely 
request for postponement could not have been submitted prior to the 
scheduled hearing date. A motion for a new hearing date following a 
failure to appear for a scheduled hearing must be in writing, must be 
filed within 15 days of the originally scheduled hearing date, and must 
explain why the appellant failed to appear for the hearing and why a 
timely request for a new hearing date could not have been submitted. 
Such motions must be filed with: Director, Management and Administration 
(01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, 
DC 20420. Whether good cause for such failure to appear and the 
impossibility of timely requesting postponement have been established 
will be determined by the Member who would have presided over the 
hearing. If good cause and the impossibility of timely requesting 
postponement are shown, the hearing will be rescheduled for the next 
available hearing date at the same facility after the appellant or his 
or her representative gives notice that the contingency which gave rise 
to the failure to appear has been removed.
    (e) Withdrawal of hearing requests. A request for a hearing may be 
withdrawn by an appellant at any time before the date of the hearing. A 
request for a hearing may not be withdrawn by an appellant's 
representative without the consent of the appellant. Notices of 
withdrawal must be submitted to the office of the Department of Veterans 
Affairs official who signed the notice of the hearing date.
    (f) Advancement of the case on the hearing docket. A hearing may be 
scheduled at a time earlier than would be provided for under Sec. 19.75 
of this chapter upon written motion of the appellant or the 
representative. The same grounds for granting relief, motion filing 
procedures, and designation of authority to rule on the motion specified 
in Rule 900(c) (Sec. 20.900(c) of this part) for advancing a case on 
the Board's docket shall apply.

(Authority: 38 U.S.C. 7107)

(Approved by the Office of Management and Budget under control number 
2900-0085)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20451, May 7, 1996; 65 FR 
14471, Mar. 17, 2000]



Sec. 20.705  Rule 705. Where hearings are conducted.

    A hearing on appeal before the Board of Veterans' Appeals may be 
held in one of the following places at the option of the appellant:
    (a) In Washington, DC, or
    (b) At a Department of Veterans Affairs facility having adequate 
physical

[[Page 94]]

resources and personnel for the support of such hearings.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[58 FR 27936, May 12, 1993, as amended at 61 FR 20451, May 7, 1996]



Sec. 20.706  Rule 706. Functions of the presiding Member.

    The presiding Member of a hearing panel is responsible for the 
conduct of the hearing, administration of the oath or affirmation, and 
for ruling on questions of procedure. The presiding Member will assure 
that the course of the hearing remains relevant to the issue, or issues, 
on appeal and that there is no cross-examination of the parties or 
witnesses. The presiding Member will take such steps as may be necessary 
to maintain good order at hearings and may terminate a hearing or direct 
that the offending party leave the hearing if an appellant, 
representative, or witness persists in disruptive behavior.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)



Sec. 20.707  Rule 707. Designation of Member or Members to conduct the 
hearing.

    The Member or panel to whom a proceeding is assigned under Sec. 
19.3 of this part shall conduct any hearing before the Board in 
connection with that proceeding. Where a proceeding has been assigned to 
a panel, the Chairman, or the Chairman's designee, shall designate one 
of the Members as the presiding Member. The Member or Members who 
conduct the hearing shall participate in making the final determination 
of the claim, subject to the exception in Sec. 19.11(c) of this part 
(relating to reconsideration of a decision).

(Authority: 38 U.S.C. 7102, 7107)

[61 FR 20451, May 7, 1996]



Sec. 20.708  Rule 708. Prehearing conference.

    An appellant's authorized representative may request a prehearing 
conference with the presiding Member of a hearing to clarify the issues 
to be considered at a hearing on appeal, obtain rulings on the 
admissibility of evidence, develop stipulations of fact, establish the 
length of argument which will be permitted, or take other steps which 
will make the hearing itself more efficient and productive. With respect 
to hearings to be held before the Board at Washington, DC, arrangements 
for a prehearing conference must be made through: Director, Management 
and Administration (01E), Board of Veterans' Appeals, 810 Vermont 
Avenue, NW., Washington, DC 20420. Requests for prehearing conferences 
in cases involving hearings to be held before the Board at Department of 
Veterans Affairs field facilities must be addressed to the office of the 
Department of Veterans Affairs official who signed the letter giving 
notice of the time and place of the hearing.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[61 FR 20452, May 7, 1996]



Sec. 20.709  Rule 709. Procurement of additional evidence following a 
hearing.

    If it appears during the course of a hearing that additional 
evidence would assist in the review of the questions at issue, the 
presiding Member may direct that the record be left open so that the 
appellant and his or her representative may obtain the desired evidence. 
The presiding Member will determine the period of time during which the 
record will stay open, considering the amount of time estimated by the 
appellant or representative as needed to obtain the evidence and other 
factors adduced during the hearing. Ordinarily, the period will not 
exceed 60 days, and will be as short as possible in order that appellate 
consideration of the case not be unnecessarily delayed.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)



Sec. 20.710 Rule 710.  Witnesses at hearings.

    The testimony of witnesses, including appellants, will be heard. All 
testimony must be given under oath or affirmation. Oath or affirmation 
is not required for the sole purpose of presenting contentions and 
argument.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[61 FR 29028, June 7, 1996]



Sec. 20.711  Rule 711. Subpoenas.

    (a) General. An appellant, or his or her representative, may arrange 
for the

[[Page 95]]

production of any tangible evidence or the voluntary appearance of any 
witnesses desired. When necessary evidence cannot be obtained in any 
other reasonable way, the appellant, or his or her representative, may 
move that a subpoena be issued to compel the attendance of witnesses 
residing within 100 miles of the place where a hearing on appeal is to 
be held and/or to compel the production of tangible evidence. A subpoena 
will not be issued to compel the attendance of Department of Veterans 
Affairs adjudicatory personnel.
    (b) Contents of motion for subpoena. The motion for a subpoena must 
be in writing, must clearly show the name and address of each witness to 
be subpoenaed, must clearly identify all documentary or other tangible 
evidence to be produced, and must explain why the attendance of the 
witness and/or the production of the tangible evidence cannot be 
obtained without a subpoena.
    (c) Where filed. Motions for a subpoena must be filed with the 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.
    (d) When motion for subpoena is to be filed in cases involving a 
hearing on appeal. Motions for the issuance of a subpoena for the 
attendance of a witness, or the production of documents or other 
tangible evidence, at a hearing on appeal must be filed not later than 
30 days prior to the hearing date.
    (e) Ruling on motion for subpoena--(1) To whom assigned. The ruling 
on the motion will be made by the Member or panel of Members to whom the 
case is assigned. Where the case has not been assigned, the Chairman, or 
the Chairman's designee, will assign the case to a Member or panel who 
will then rule on the motion.
    (2) Procedure. If the motion is denied, the Member(s) ruling on the 
motion will issue an order to that effect which sets forth the reasons 
for the denial and will send copies to the moving party and his or her 
representative, if any. Granting the motion will be signified by 
completion of a VA Form 0714, ``Subpoena,'' if attendance of a witness 
is required, and/or VA Form 0713, ``Subpoena Duces Tecum,'' if 
production of tangible evidence is required. The completed form shall be 
signed by the Member ruling on the motion, or, where applicable, by any 
panel Member on behalf of the panel ruling on the motion, and served in 
accordance with paragraph (g) of this section.
    (f) Fees. Any person who is required to attend a hearing 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. A subpoena for a 
witness will not be issued or served unless the party on whose behalf 
the subpoena is issued submits a check in an amount equal to the fee for 
one day's attendance and the mileage allowed by law, made payable to the 
witness, as an attachment to the motion for the subpoena. Except for 
checks on the business accounts of attorneys-at-law, agents, and 
recognized service organizations, such checks must be in the form of 
certified checks or cashiers checks.
    (g) Service of subpoenas. The Board will serve the subpoena by 
certified mail, return receipt requested. The check for fees and mileage 
described in paragraph (f) of this section shall be mailed with the 
subpoena. The receipt, which must bear the signature of the witness or 
of the custodian of the tangible evidence, and a copy of the subpoena 
will be filed in the claims folder, loan guaranty folder, or other 
applicable Department of Veterans Affairs records folder.
    (h) Motion to quash or modify subpoena--(1) Filing procedure. Upon 
written motion of the party securing the subpoena, or of the person 
subpoenaed, the Board may quash or modify the subpoena if it is 
unreasonable and oppressive or for other good cause shown. Relief may 
include, but is not limited to, requiring the party who secured the 
subpoena to advance the reasonable cost of producing books, papers, or 
other tangible evidence. The motion must specify the relief sought and 
the reasons for requesting relief. Such motions must be filed at the 
address specified in paragraph (c) of this section within 10 days after 
mailing of the subpoena or the time specified in the subpoena for 
compliance, whichever is less. The motion may be accompanied by such 
supporting evidence as the

[[Page 96]]

moving party may choose to submit. It must be accompanied by a 
declaration showing:
    (i) That a copy of the motion, and any attachments thereto, were 
mailed to the party who secured the subpoena, or the person subpoenaed, 
as applicable;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed.
    (2) Response. Not later than 10 days after the date that the motion 
was mailed to the responding party, that party may file a response to 
the motion at the address specified in paragraph (c) of this section. 
The response may be accompanied by such supporting evidence as the 
responding party may choose to submit. It must be accompanied by a 
declaration showing:
    (i) That a copy of the response, and any attachments thereto, were 
mailed to the moving party;
    (ii) The date of mailing; and
    (iii) The address to which the copy was mailed. If the subpoena 
involves testimony or the production of tangible evidence at a hearing 
before the Board and less than 30 days remain before the scheduled 
hearing date at the time the response is received by the Board, the 
Board may reschedule the hearing to permit disposition of the motion.
    (3) Ruling on the motion. The Member or panel to whom the case is 
assigned will issue an order disposing of the motion. Such order shall 
set forth the reasons for which a motion is either granted or denied. 
The order will be mailed to all parties to the motion. Where applicable, 
an order quashing a subpoena will require refund of any sum advanced for 
fees and mileage.
    (i) Disobedience. In case of disobedience to a subpoena issued by 
the Board, the Board will take such steps as may be necessary to invoke 
the aid of the appropriate district court of the United States in 
requiring the attendance of the witness and/or the production of the 
tangible evidence subpoenaed. A failure to obey the order of such a 
court may be punished by the court as a contempt thereof.

(Authority: 38 U.S.C. 5711, 5713, 7102(a))

(Authority: 38 U.S.C. 5711, 7102(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20452, May 7, 1996; 66 FR 
49538, Sept. 28, 2001]



Sec. 20.712  Rule 712. Expenses of appellants, representatives, and 
witnesses incident to hearings not reimbursable by the Government.

    No expenses incurred by an appellant, representative, or witness 
incident to attendance at a hearing may be paid by the Government.

(Authority: 38 U.S.C. 111)



Sec. 20.713  Rule 713. Hearings in simultaneously contested claims.

    (a) General. If a hearing is scheduled for any party to a 
simultaneously contested claim, the other contesting claimants and their 
representatives, if any, will be notified and afforded an opportunity to 
be present. The appellant will be allowed to present opening testimony 
and argument. Thereafter, any other contesting party who wishes to do so 
may present testimony and argument. The appellant will then be allowed 
an opportunity to present testimony and argument in rebuttal. Cross-
examination will not be allowed.
    (b) Requests for changes in hearing dates. Any party to a 
simultaneously contested claim may request a change in a hearing date in 
accordance with the provisions of Rule 702, paragraph (c) (Sec. 
20.702(c) of this part), or Rule 704, paragraph (c) (Sec. 20.704(c) of 
this part), as applicable. In order to obtain a new hearing date under 
the provisions of Rule 702, paragraph (c)(1), the consent of all other 
interested parties must be obtained and submitted with the request for a 
new hearing date. If such consent is not obtained, paragraph (c)(2) of 
that rule will apply even though the request is submitted within 60 days 
from the date of the letter of notification of the time and place of the 
hearing. A copy of any motion for a new hearing date required by these 
rules must be mailed to all other interested parties by certified mail, 
return receipt requested. The receipts, which must bear the signatures 
of the other

[[Page 97]]

interested parties, and a letter explaining that they relate to the 
motion for a new hearing date and containing the applicable Department 
of Veterans Affairs file number must be filed at the same address where 
the motion was filed as proof of service of the motion. Each interested 
party will be allowed a period of 10 days from the date that the copy of 
the motion was received by that party to file written argument in 
response to the motion.

(Authority: 38 U.S.C. 7105A)



Sec. 20.714  Rule 714. Record of hearing.

    (a) Board of Veterans' Appeals. A hearing before a Member or panel 
of Members of the Board, whether held in Washington, DC, or at a 
Department of Veterans Affairs field facility, will be recorded on audio 
tape. In those instances where a complete written transcript is 
prepared, that transcript will be the official record of the hearing and 
the tape recording will be retained at the Board for a period of 12 
months following the date of the hearing as a duplicate record of the 
hearing. Tape recordings of hearings that have not been transcribed will 
be maintained by the Board as the official record of hearings and 
retained in accordance with retention standards approved by the National 
Archives and Records Administration. A transcript will be prepared and 
incorporated as a part of the claims folder, loan guaranty folder, or 
other applicable Department of Veterans Affairs records folder if one or 
more of the following conditions have been met:
    (1) The appellant or representative has shown good cause why such a 
written transcript should be prepared. (The presiding Member will 
determine whether good cause has been shown. Requests that recordings of 
hearing proceedings be transcribed may be made orally at the time of the 
hearing. Requests made subsequent to the hearing must be in writing and 
must explain why transcription is necessary. They must be filed with: 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.)
    (2) Testimony and/or argument has been presented at the hearing 
pertaining to an issue which is to be remanded to the agency of original 
jurisdiction for further development or an issue which is not in 
appellate status which is to be referred to the agency of original 
jurisdiction for consideration.
    (3) The hearing involves an issue relating to National Service Life 
Insurance or United States Government Life Insurance.
    (4) With respect to hearings conducted by a Member or Members of the 
Board at a Department of Veterans Affairs field facility :
    (i) An issue on appeal involves radiation, Agent Orange, or asbestos 
exposure;
    (ii) The appeal involves reconsideration of a prior Board of 
Veterans' Appeals decision on the same issue; or
    (5) The Board's decision on an issue addressed at the hearing has 
been appealed to the United States Court of Appeals for Veterans Claims.
    (b) Copy of hearing tape recording or written transcript. One copy 
of the tape recording of hearing proceedings before the Board of 
Veterans' Appeals, or the written transcript of such proceedings when 
such a transcript has been prepared in accordance with the provisions of 
paragraph (a) of this section, shall be furnished without cost to the 
appellant or representative if a request is made in accordance with 
Sec. 1.577 of this chapter.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27936, May 12, 1993; 61 
FR 20452, May 7, 1996; 65 FR 14472, Mar. 17, 2000]



Sec. 20.715  Rule 715. Recording of hearing by appellant or representative.

    An appellant or representative may record the hearing with his or 
her own equipment. Filming, videotaping or televising the hearing may 
only be authorized when prior written consent is obtained from all 
appellants and contesting claimants, if any, and made a matter of 
record. In no event will such additional equipment be used if it 
interferes with the conduct of the hearing or the official recording 
apparatus. In all such situations, advance arrangements must be made. In 
the case of

[[Page 98]]

hearings held before the Board of Veterans' Appeals in Washington, DC, 
arrangements must be made with the Director, Management and 
Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, 
NW., Washington, DC 20420. In the case of hearings held before the Board 
at Department of Veterans Affairs field facilities, arrangements must be 
made through the office of the Department of Veterans Affairs official 
who signed the letter giving notification of the time and place of the 
hearing.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[58 FR 27936, May 12, 1993, as amended at 61 FR 20452, May 7, 1996]



Sec. 20.716  Rule 716. Correction of hearing transcripts.

    The tape recording on file at the Board of Veterans' Appeals or a 
transcript prepared by the Board of Veterans' Appeals is the only 
official record of a hearing before the Board. Alternate transcript 
versions prepared by the appellant and representative will not be 
accepted. If an appellant wishes to seek correction of perceived errors 
in a hearing transcript, the appellant or his or her representative 
should move for the correction of the hearing transcript within 30 days 
after the date that the transcript is mailed to the appellant. The 
motion must be in writing and must specify the error, or errors, in the 
transcript and the correct wording to be substituted. In the case of 
hearings held before the Board of Veterans' Appeals, whether in 
Washington, DC, or in the field, the motion must be filed with the 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on 
the motion will be made by the presiding Member of the hearing.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[58 FR 27936, May 12, 1993, as amended at 61 FR 20452, May 7, 1996]



Sec. 20.717  Rule 717. Loss of hearing tapes or transcripts--motion for 
new hearing.

    (a) Motion for new hearing. In the event that a hearing has not been 
recorded in whole or in part due to equipment failure or other cause, or 
the official transcript of the hearing is lost or destroyed and the 
recording upon which it was based is no longer available, an appellant 
or his or her representative may move for a new hearing. The motion must 
be in writing and must specify why prejudice would result from the 
failure to provide a new hearing.
    (b) Time limit for filing motion for a new hearing. The motion will 
not be granted if there has been no request for a new hearing within a 
period of 120 days from the date of a final Board of Veterans' Appeals 
decision or, in cases appealed to the United States Court of Appeals for 
Veterans Claims, if there has been no request for a new hearing within a 
reasonable period of time after the appeal to that Court has been filed.
    (c) Where motion for a new hearing is filed. In the case of hearings 
held before the Board of Veterans' Appeals, whether in Washington, DC, 
or in the field, the motion must be filed with: Director, Management and 
Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, 
NW., Washington, DC 20420.
    (d) Ruling on motion for a new hearing. The ruling on the motion for 
a new hearing will be made by the Member who presided over the hearing. 
If the presiding Member is no longer available, the ruling on the motion 
may be made by the Member or Members to whom the case has been assigned 
for a determination. In cases in which a final Board of Veterans' 
Appeals decision has already been promulgated with respect to the appeal 
in question, the Chairman will assign the matter in accordance with 
Sec. 19.3 of this title. Factors to be considered in ruling on the 
motion include, but will not be limited to, the extent of the loss of 
the record in those cases where only a portion of a hearing tape is 
unintelligible or only a portion of a transcript has been lost or 
destroyed, and the extent and reasonableness of any delay in moving for 
a new hearing. If a new hearing is granted in a case in which a final 
Board of Veterans' Appeals decision

[[Page 99]]

has already been promulgated, a supplemental decision will be issued.

(Authority: 38 U.S.C. 7102, 7105(a), 7107)

[57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27936, May 12, 1993; 61 
FR 20452, May 7, 1996; 65 FR 14472, Mar. 17, 2000]



Sec. Sec. 20.718-20.799  [Reserved]



                           Subpart I_Evidence



Sec. 20.800  Rule 800. Submission of additional evidence after initiation 
of appeal.

    Subject to the limitations set forth in Rule 1304 (Sec. 20.1304 of 
this part), an appellant may submit additional evidence, or information 
as to the availability of additional evidence, after initiating an 
appeal.

(Authority: 38 U.S.C. 7105(d)(1))



Sec. Sec. 20.801-20.899  [Reserved]



                      Subpart J_Action by the Board



Sec. 20.900  Rule 900. Order of consideration of appeals.

    (a) Docketing of appeals. Applications for review on appeal are 
docketed in the order in which they are received. Cases returned to the 
Board following action pursuant to a remand assume their original places 
on the docket.
    (b) Appeals considered in docket order. Except as otherwise provided 
in this Rule, appeals are considered in the order in which they are 
entered on the docket.
    (c) Advancement on the docket. (1) Grounds for advancement. A case 
may be advanced on the docket on the motion of the Chairman, the Vice 
Chairman, a party to the case before the Board, or such party's 
representative. Such a motion may be granted only if the case involves 
interpretation of law of general application affecting other claims, if 
the appellant is seriously ill or is under severe financial hardship, or 
if other sufficient cause is shown. ``Other sufficient cause'' shall 
include, but is not limited to, administrative error resulting in a 
significant delay in docketing the case or the advanced age of the 
appellant. For purposes of this Rule, ``advanced age'' is defined as 75 
or more years of age. This paragraph does not require the Board to 
advance a case on the docket in the absence of a motion of a party to 
the case or the party's representative.
    (2) Requirements for motions. Motions for advancement on the docket 
must be in writing and must identify the specific reason(s) why 
advancement on the docket is sought, the name of the veteran, the name 
of the appellant if other than the veteran (e.g., a veteran's survivor, 
a guardian, or a fiduciary appointed to receive VA benefits on an 
individual's behalf), and the applicable Department of Veterans Affairs 
file number. The motion must be filed with: Director, Administrative 
Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., 
Washington, DC 20420.
    (3) Disposition of motions. If a motion is received prior to the 
assignment of the case to an individual member or panel of members, the 
ruling on the motion will be by the Vice Chairman, who may delegate such 
authority to a Deputy Vice Chairman. If a motion to advance a case on 
the docket is denied, the appellant and his or her representative will 
be immediately notified. If the motion to advance a case on the docket 
is granted, that fact will be noted in the Board's decision when 
rendered.
    (d) Consideration of appeals remanded by the United States Court of 
Appeals for Veterans Claims. A case remanded by the United States Court 
of Appeals for Veterans Claims for additional development or other 
appropriate action will be treated expeditiously by the Board without 
regard to its place on the Board's docket.
    (e) Postponement to provide hearing. Any other provision of this 
Rule notwithstanding, a case may be postponed for later consideration 
and determination if such postponement is necessary to afford the 
appellant a hearing.

(Authority: 38 U.S.C. 7107, Pub. Law No. 103-446, Sec. 302)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 51923, Oct. 4, 1995; 61 
FR 20453, May 7, 1996; 65 FR 14472, Mar. 17, 2000; 68 FR 53683, Sept. 
12, 2003]

[[Page 100]]



Sec. 20.901  Rule 901. Medical opinions and opinions of the General 
Counsel.

    (a) Opinion from the Veterans Health Administration. The Board may 
obtain a medical opinion from an appropriate health care professional in 
the Veterans Health Administration of the Department of Veterans Affairs 
on medical questions involved in the consideration of an appeal when, in 
its judgment, such medical expertise is needed for equitable disposition 
of an appeal.


(Authority: 38 U.S.C. 5103A(d), 7109)

    (b) Armed Forces Institute of Pathology opinions. The Board may 
refer pathologic material to the Armed Forces Institute of Pathology and 
request an opinion based on that material.


(Authority: 38 U.S.C. 7109(a))

    (c) Opinion of the General Counsel. The Board may obtain an opinion 
from the General Counsel of the Department of Veterans Affairs on legal 
questions involved in the consideration of an appeal.


(Authority: 38 U.S.C. 7104(c))

    (d) Independent medical expert opinions. When, in the judgment of 
the Board, additional medical opinion is warranted by the medical 
complexity or controversy involved in an appeal, the Board may obtain an 
advisory medical opinion from one or more medical experts who are not 
employees of the Department of Veterans Affairs. Opinions will be 
secured, as requested by the Chairman of the Board, from recognized 
medical schools, universities, clinics, or medical institutions with 
which arrangements for such opinions have been made by the Secretary of 
Veterans Affairs. An appropriate official of the institution will select 
the individual expert, or experts, to give an opinion.


(Authority: 38 U.S.C. 7109)

    (e) For purposes of this section, the term ``the Board'' includes 
the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any 
Member of the Board before whom a case is pending.


(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996; 66 FR 
38159, July 23, 2001; 69 FR 19937, Apr. 15, 2004]



Sec. 20.902  Rule 902. Filing of requests for the procurement of opinions.

    The appellant or representative may request that the Board obtain an 
opinion under Rule 901 (Sec. 20.901 of this part). The request must be 
in writing. It will be granted upon a showing of good cause, such as the 
identification of a complex or controversial medical or legal issue 
involved in the appeal which warrants such an opinion.

(Authority: 38 U.S.C. 5107(a), 7102(c), 7104(c), 7109)



Sec. 20.903  Rule 903. Notification of evidence secured and law to be 
considered by the Board and opportunity for response.

    (a) If the Board obtains a legal or medical opinion. If the Board 
requests an opinion pursuant to Rule 901 (Sec. 20.901 of this part), 
the Board will notify the appellant and his or her representative, if 
any. When the Board receives the opinion, it will furnish a copy of the 
opinion to the appellant's representative or, subject to the limitations 
provided in 38 U.S.C. 5701(b)(1), to the appellant if there is no 
representative. A period of 60 days from the date the Board furnishes a 
copy of the opinion will be allowed for response, which may include the 
submission of relevant evidence or argument. The date the Board 
furnishes a copy will be presumed to be the same as the date of the 
letter or memorandum that accompanies the copy of the opinion for 
purposes of determining whether a response was timely filed.
    (b) If the Board obtains other evidence. If, pursuant to Sec. 
19.9(a) or Sec. 19.37(b) of this chapter, the Board obtains pertinent 
evidence that was not submitted by the appellant or the appellant's 
representative, the Board will notify the appellant and his or her 
representative, if any, of the evidence obtained by furnishing a copy of 
such evidence. A period of 60 days from the date the Board furnishes the 
notice will be allowed for

[[Page 101]]

response, which may include the submission of relevant evidence or 
argument. The date the Board furnishes the notice will be presumed to be 
the same as the date of the letter or memorandum that accompanies the 
notice for purposes of determining whether a response was timely filed.
    (c) If the Board considers law not already considered by the agency 
of original jurisdiction. If the Board intends to consider law not 
already considered by the agency of original jurisdiction and such 
consideration could result in denial of the appeal, the Board will 
notify the appellant and his or her representative, if any, of its 
intent to do so and that such consideration in the first instance by the 
Board could result in denial of the appeal. The notice from the Board 
will contain a copy or summary of the law to be considered. A period of 
60 days from the date the Board furnishes the notice will be allowed for 
response, which may include the submission of relevant evidence or 
argument. The date the Board furnishes the notice will be presumed to be 
the same as the date of the letter that accompanies the notice for 
purposes of determining whether a response was timely filed. No notice 
is required under this paragraph if the Board intends to grant the 
benefit being sought or if the appellant or the appellant's 
representative has advanced or otherwise argued the applicability of the 
law in question.

(Authority: 38 U.S.C. 7104(a), 7109(c)).

[67 FR 3105, Jan. 23, 2002]



Sec. 20.904  Rule 904. Vacating a decision.

    An appellate decision may be vacated by the Board of Veterans' 
Appeals at any time upon request of the appellant or his or her 
representative, or on the Board's own motion, on the following grounds:
    (a) Denial of due process. Examples of circumstances in which denial 
of due process of law will be conceded are:
    (1) When the appellant was denied his or her right to representation 
through action or inaction by Department of Veterans Affairs or Board of 
Veterans' Appeals personnel,
    (2) When a Statement of the Case or required Supplemental Statement 
of the Case was not provided, and
    (3) When there was a prejudicial failure to afford the appellant a 
personal hearing. (Where there was a failure to honor a request for a 
hearing and a hearing is subsequently scheduled, but the appellant fails 
to appear, the decision will not be vacated.)
    (b) Allowance of benefits based on false or fraudulent evidence. 
Where it is determined on reconsideration that an allowance of benefits 
by the Board has been materially influenced by false or fraudulent 
evidence submitted by or on behalf of the appellant, the prior decision 
will be vacated only with respect to the issue or issues to which, 
within the judgment of the Board, the false or fraudulent evidence was 
material.

(Authority: 38 U.S.C. 7104(a))



Sec. Sec. 20.905-20.999  [Reserved]



                        Subpart K_Reconsideration



Sec. 20.1000  Rule 1000. When reconsideration is accorded.

    Reconsideration of an appellate decision may be accorded at any time 
by the Board of Veterans' Appeals on motion by the appellant or his or 
her representative or on the Board's own motion:
    (a) Upon allegation of obvious error of fact or law;
    (b) Upon discovery of new and material evidence in the form of 
relevant records or reports of the service department concerned; or
    (c) Upon allegation that an allowance of benefits by the Board has 
been materially influenced by false or fraudulent evidence submitted by 
or on behalf of the appellant.

(Authority: 38 U.S.C. 7103, 7104)



Sec. 20.1001  Rule 1001. Filing and disposition of motion for 
reconsideration.

    (a) Application requirements. A motion for Reconsideration must be 
in writing and must include the name of the veteran; the name of the 
claimant or appellant if other than the veteran (e.g., a veteran's 
survivor, a guardian, or a fiduciary appointed to receive VA benefits on 
an individual's behalf); the applicable Department of Veterans Affairs 
file number; and the date of the Board of Veterans' Appeals decision, or

[[Page 102]]

decisions, to be reconsidered. It must also set forth clearly and 
specifically the alleged obvious error, or errors, of fact or law in the 
applicable decision, or decisions, of the Board or other appropriate 
basis for requesting Reconsideration. If the applicable Board of 
Veterans' Appeals decision, or decisions, involved more than one issue 
on appeal, the motion for reconsideration must identify the specific 
issue, or issues, to which the motion pertains. Issues not so identified 
will not be considered in the disposition of the motion.
    (b) Filing of motion for reconsideration. A motion for 
reconsideration of a prior Board of Veterans' Appeals decision may be 
filed at any time. Such motions must be filed at the following address: 
Director, Management and Administration (01E), Board of Veterans' 
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
    (c) Disposition. The Chairman will review the sufficiency of the 
allegations set forth in the motion and, depending upon the decision 
reached, proceed as follows:
    (1) Motion denied. The appellant and representative or other 
appropriate party will be notified if the motion is denied. The 
notification will include reasons why the allegations are found 
insufficient. This constitutes final disposition of the motion.
    (2) Motion allowed. If the motion is allowed, the appellant and his 
or her representative, if any, will be notified. The appellant and the 
representative will be given a period of 60 days from the date of 
mailing of the letter of notification to present additional arguments or 
evidence. The date of mailing of the letter of notification will be 
presumed to be the same as the date of the letter of notification. The 
Chairman will assign a Reconsideration panel in accordance with Sec. 
19.11 of this chapter.

(Authority: 38 U.S.C. 7103, 7108)



Sec. 20.1002  Rule 1002. [Reserved]



Sec. 20.1003  Rule 1003. Hearings on reconsideration.

    After a motion for reconsideration has been allowed, a hearing will 
be granted if an appellant requests a hearing before the Board. The 
hearing will be held by a Member or Members assigned to the 
reconsideration panel. A hearing will not normally be scheduled solely 
for the purpose of receiving argument by a representative. Such argument 
should be submitted in the form of a written brief. Oral argument may 
also be submitted on audio cassette for transcription for the record in 
accordance with Rule 700(d) (Sec. 20.700(d) of this part). Requests for 
appearances by representatives alone to personally present argument to a 
Member or panel of Members of the Board may be granted if good cause is 
shown. Whether good cause has been shown will be determined by the 
presiding Member.

(Authority: 38 U.S.C. 7102, 7103, 7105(a))

[61 FR 20453, May 7, 1996]



Sec. Sec. 20.1004-20.1099  [Reserved]



                           Subpart L_Finality



Sec. 20.1100  Rule 1100. Finality of decisions of the Board.

    (a) General. All decisions of the Board will be stamped with the 
date of mailing on the face of the decision. Unless the Chairman of the 
Board orders reconsideration, and with the exception of matters listed 
in paragraph (b) of this section, all Board decisions are final on the 
date stamped on the face of the decision. With the exception of matters 
listed in paragraph (b) of this section, the decision rendered by the 
reconsideration Panel in an appeal in which the Chairman has ordered 
reconsideration is final.
    (b) Exceptions. Final Board decisions are not subject to review 
except as provided in 38 U.S.C. 1975 and 1984 and 38 U.S.C. chapters 37 
and 72. A remand is in the nature of a preliminary order and does not 
constitute a final decision of the Board.

(Authority: 38 U.S.C. 511(a), 7103, 7104(a))

[57 FR 4109, Feb. 3, 1992, as amended at 61 FR 20453, May 7, 1996]



Sec. 20.1101  Rule 1101. [Reserved]



Sec. 20.1102  Rule 1102. Harmless error.

    An error or defect in any decision by the Board of Veterans' Appeals 
which does not affect the merits of the issue or substantive rights of 
the appellant

[[Page 103]]

will be considered harmless and not a basis for vacating or reversing 
such decision.

(Authority: 38 U.S.C. 7103)



Sec. 20.1103  Rule 1103. Finality of determinations of the agency of 
original jurisdiction where appeal is not perfected.

    A determination on a claim by the agency of original jurisdiction of 
which the claimant is properly notified is final if an appeal is not 
perfected as prescribed in Rule 302 (Sec. 20.302 of this part).

(Authority: 38 U.S.C. 7105)



Sec. 20.1104  Rule 1104. Finality of determinations of the agency of 
original jurisdiction affirmed on appeal.

    When a determination of the agency of original jurisdiction is 
affirmed by the Board of Veterans' Appeals, such determination is 
subsumed by the final appellate decision.

(Authority: 38 U.S.C. 7104(a))



Sec. 20.1105  Rule 1105. New claim after promulgation of appellate decision.

    When a claimant requests that a claim be reopened after an appellate 
decision has been promulgated and submits evidence in support thereof, a 
determination as to whether such evidence is new and material must be 
made and, if it is, as to whether it provides a basis for allowing the 
claim. An adverse determination as to either question is appealable.

(Authority: 38 U.S.C. 5108, 7104)



Sec. 20.1106  Rule 1106. Claim for death benefits by survivor-prior 
unfavorable decisions during veteran's lifetime.

    Except with respect to benefits under the provisions of 38 U.S.C. 
1311(a)(2), 1318, and certain cases involving individuals whose 
Department of Veterans Affairs benefits have been forfeited for treason 
or for subversive activities under the provisions of 38 U.S.C. 6104 and 
6105, issues involved in a survivor's claim for death benefits will be 
decided without regard to any prior disposition of those issues during 
the veteran's lifetime.

(Authority: 38 U.S.C. 7104(b))

[67 FR 16317, Apr. 5, 2002]



Sec. Sec. 20.1107-20.1199  [Reserved]



                          Subpart M_Privacy Act



Sec. 20.1200  Rule 1200. Privacy Act request--appeal pending.

    When a Privacy Act request is filed under Sec. 1.577 of this 
chapter by an individual seeking records pertaining to him or her and 
the relevant records are in the custody of the Board, such request will 
be reviewed and processed prior to appellate action on that individual's 
appeal.

(Authority: 5 U.S.C. 552a; 38 U.S.C. 7107)



Sec. 20.1201  Rule 1201. Amendment of appellate decisions.

    A request for amendment of an appellate decision under the Privacy 
Act (5 U.S.C. 552a) may be entertained. However, such a request may not 
be used in lieu of, or to circumvent, the procedures established under 
Rules 1000 through 1003 (Sec. Sec. 20.1000-20.1003 of this part). The 
Board will review a request for correction of factual information set 
forth in a decision. Where the request to amend under the Privacy Act is 
an attempt to alter a judgment made by the Board and thereby replace the 
adjudicatory authority and functions of the Board, the request will be 
denied on the basis that the Act does not authorize a collateral attack 
upon that which has already been the subject of a decision of the Board. 
The denial will satisfy the procedural requirements of Sec. 1.579 of 
this chapter. If otherwise appropriate, the request will be considered 
one for reconsideration under Rules 1000 through 1003 (Sec. Sec. 
20.1000-20.1003 of this part).

(Authority: 5 U.S.C. 552a(d); 38 U.S.C. 7103, 7108)



Sec. Sec. 20.1202-20.1299  [Reserved]



                         Subpart N_Miscellaneous

    Cross-Reference: In cases involving access to patient information 
relating to a Department of Veterans Affairs program for, or

[[Page 104]]

the treatment of, drug abuse, alcoholism, alcohol abuse, sickle cell 
anemia, or infection with the human immunodeficiency virus, also see 38 
U.S.C. 7332.



Sec. 20.1300  Rule 1300. Removal of Board records.

    No original record, paper, document or exhibit certified to the 
Board may be taken from the Board except as authorized by the Chairman 
or except as may be necessary to furnish copies or to transmit copies 
for other official purposes.

(Authority: 38 U.S.C. 5701)

[61 FR 29028, June 7, 1996]



Sec. 20.1301  Rule 1301. Disclosure of information.

    (a) Policy. It is the policy of the Board of Veterans' Appeals for 
the full text of appellate decisions, Statements of the Case, and 
Supplemental Statements of the Case to be disclosed to appellants. In 
those situations where disclosing certain information directly to the 
appellant would not be in conformance with 38 U.S.C. 5701, that 
information will be removed from the decision, Statement of the Case, or 
Supplemental Statement of the Case and the remaining text will be 
furnished to the appellant. A full-text appellate decision, Statement of 
the Case, or Supplemental Statement of the Case will be disclosed to the 
designated representative, however, unless the relationship between the 
appellant and representative is such (for example, a parent or spouse) 
that disclosure to the representative would be as harmful as if made to 
the appellant.


(Authority: 38 U.S.C. 7105(d)(2))

    (b) Index to decisions. The appellate decisions of the Board of 
Veterans' Appeals have been indexed to facilitate access to the contents 
of the decisions (BVA Index I-01-1). The index, which is published 
quarterly in microfiche form with an annual cumulation, is available for 
review at Department of Veterans Affairs regional offices and at the 
Research Center at the Board of Veterans' Appeals in Washington, DC. The 
index can be used to locate citations to decisions with issues similar 
to those of concern to an appellant. Each indexed decision has a locator 
number assigned to it. The manner in which the locator number is written 
will depend upon the age of the decision. Decisions archived prior to 
late 1989 will have a number such as 82-07-0001. Decisions archived at a 
later date will have a number such as BVA-90-12345. This number must be 
used when requesting a paper copy of that decision. These requests must 
be directed to the Appellate Index and Retrieval Staff (01C1), Board of 
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. 
Microfiche copies of BVA Index I-01-1 can be obtained from Promisel and 
Korn, Inc., 7201 Wisconsin Avenue, suite 480, Bethesda, MD 20814.

(Authority: 5 U.S.C. 552(a)(2))



Sec. 20.1302  Rule 1302. Death of appellant during pendency of appeal.

    An appeal pending before the Board of Veterans' Appeals when the 
appellant dies will be dismissed.

(Authority: 38 U.S.C. 7104(a))

[62 FR 55170, Oct. 23, 1997]



Sec. 20.1303  Rule 1303. Nonprecedential nature of Board decisions.

    Although the Board strives for consistency in issuing its decisions, 
previously issued Board decisions will be considered binding only with 
regard to the specific case decided. Prior decisions in other appeals 
may be considered in a case to the extent that they reasonably relate to 
the case, but each case presented to the Board will be decided on the 
basis of the individual facts of the case in light of applicable 
procedure and substantive law.

(Authority: 38 U.S.C. 7104(a))



Sec. 20.1304  Rule 1304. Request for change in representation, request for 

personal hearing, or submission of additional evidence following 
certification of an appeal to the Board of Veterans' Appeals.

    (a) Request for a change in representation, request for a personal 
hearing, or submission of additional evidence within 90 days following 
notification of certification and transfer of records. An appellant and 
his or her representative, if any, will be granted a period of 90 days 
following the mailing of notice to them that an appeal has been 
certified to the

[[Page 105]]

Board for appellate review and that the appellate record has been 
transferred to the Board, or until the date the appellate decision is 
promulgated by the Board of Veterans' Appeals, whichever comes first, 
during which they may submit a request for a personal hearing, 
additional evidence, or a request for a change in representation. Any 
such request or additional evidence must be submitted directly to the 
Board and not to the agency of original jurisdiction. The date of 
mailing of the letter of notification will be presumed to be the same as 
the date of that letter for purposes of determining whether the request 
was timely made or the evidence was timely submitted. Any evidence which 
is submitted at a hearing on appeal which was requested during such 
period will be considered to have been received during such period, even 
though the hearing may be held following the expiration of the period. 
Any pertinent evidence submitted by the appellant or representative is 
subject to the requirements of paragraph (c) of this section if a 
simultaneously contested claim is involved.
    (b) Subsequent request for a change in representation, request for a 
personal hearing, or submission of additional evidence--(1) General 
rule. Subject to the exception in paragraph (b)(2) of this section, 
following the expiration of the period described in paragraph (a) of 
this section, the Board of Veterans' Appeals will not accept a request 
for a change in representation, a request for a personal hearing, or 
additional evidence except when the appellant demonstrates on motion 
that there was good cause for the delay. Examples of good cause include, 
but are not limited to, illness of the appellant or the representative 
which precluded action during the period; death of an individual 
representative; illness or incapacity of an individual representative 
which renders it impractical for an appellant to continue with him or 
her as representative; withdrawal of an individual representative; the 
discovery of evidence that was not available prior to the expiration of 
the period; and delay in transfer of the appellate record to the Board 
which precluded timely action with respect to these matters. Such 
motions must be in writing and must include the name of the veteran; the 
name of the claimant or appellant if other than the veteran (e.g., a 
veteran's survivor, a guardian, or a fiduciary appointed to receive VA 
benefits on an individual's behalf); the applicable Department of 
Veterans Affairs file number; and an explanation of why the request for 
a change in representation, the request for a personal hearing, or the 
submission of additional evidence could not be accomplished in a timely 
manner. Such motions must be filed at the following address: Director, 
Management and Administration (01E), Board of Veterans' Appeals, 810 
Vermont Avenue, NW., Washington, DC 20420. Depending upon the ruling on 
the motion, action will be taken as follows:
    (i) Good cause not shown. If good cause is not shown, the request 
for a change in representation, the request for a personal hearing, or 
the additional evidence submitted will be referred to the agency of 
original jurisdiction upon completion of the Board's action on the 
pending appeal without action by the Board concerning the request or 
additional evidence. Any personal hearing granted as a result of a 
request so referred or any additional evidence so referred may be 
treated by that agency as the basis for a reopened claim, if 
appropriate. If the Board denied a benefit sought in the pending appeal 
and any evidence so referred which was received prior to the date of the 
Board's decision, or testimony presented at a hearing resulting from a 
request for a hearing so referred, together with the evidence already of 
record, is subsequently found to be the basis of an allowance of that 
benefit, the effective date of the award will be the same as if the 
benefit had been granted by the Board as a result of the appeal which 
was pending at the time that the hearing request or additional evidence 
was received.
    (ii) Good cause shown. If good cause is shown, the request for a 
change in representation or for a personal hearing will be honored. Any 
pertinent evidence submitted by the appellant or representative will be 
accepted, subject to the requirements of paragraph (c) of this section 
if a simultaneously contested claim is involved.

[[Page 106]]

    (2) If the Board obtains evidence or considers law not considered by 
the agency of original jurisdiction. The motion described in paragraph 
(b)(1) of this section is not required to submit evidence in response to 
the notice described in paragraph (b) or (c) of Rule 903 (paragraph (b) 
or (c) of Sec. 20.903 of this part).
    (c) Simultaneously contested claims. In simultaneously contested 
claims, if pertinent evidence which directly affects payment, or 
potential payment, of the benefit sought is submitted by any claimant 
and is accepted by the Board under the provisions of this section, the 
substance of such evidence will be mailed to each of the other claimants 
who will then have 60 days from the date of mailing of notice of the new 
evidence within which to comment upon it and/or submit additional 
evidence in rebuttal. The date of mailing of the letter of notification 
of the new evidence will be presumed to be the same as the date of that 
letter for purposes of determining whether such comment or evidence in 
rebuttal was timely submitted. No further period will be provided for 
response to such comment or rebuttal evidence.

(Authority: 38 U.S.C. 7104, 7105, 7105A)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 25851, May 15, 1995; 61 
FR 20453, May 7, 1996; 67 FR 3105, Jan. 23, 2002]



  Subpart O_Revision of Decisions on Grounds of Clear and Unmistakable 
                                  Error

    Source: 64 FR 2139, Jan. 13, 1999, unless otherwise noted.



Sec. 20.1400  Rule 1400. Motions to revise Board decisions.

    (a) Review to determine whether clear and unmistakable error exists 
in a final Board decision may be initiated by the Board, on its own 
motion, or by a party to that decision (as the term ``party'' is defined 
in Rule 1401(b) (Sec. 20.1401(b) of this part) in accordance with Rule 
1404 (Sec. 20.1404 of this part).
    (b) All final Board decisions are subject to revision under this 
subpart except:
    (1) Decisions on issues which have been appealed to and decided by a 
court of competent jurisdiction; and
    (2) Decisions on issues which have subsequently been decided by a 
court of competent jurisdiction.

(Authority: 38 U.S.C. 501(a), 7111)

[64 FR 2139, Jan 13, 1999, as amended at 64 FR 73414, Dec. 30, 1999]



Sec. 20.1401  Rule 1401. Definitions.

    (a) Issue. Unless otherwise specified, the term ``issue'' in this 
subpart means a matter upon which the Board made a final decision (other 
than a decision under this subpart). As used in the preceding sentence, 
a ``final decision'' is one which was appealable under Chapter 72 of 
title 38, United States Code, or which would have been so appealable if 
such provision had been in effect at the time of the decision.
    (b) Party. As used in this subpart, the term ``party'' means any 
party to the proceeding before the Board that resulted in the final 
Board decision which is the subject of a motion under this subpart, but 
does not include officials authorized to file administrative appeals 
pursuant to Sec. 19.51 of this title.

(Authority: 38 U.S.C. 501(a), 7104(a))



Sec. 20.1402  Rule 1402. Inapplicability of other rules.

    Motions filed under this subpart are not appeals and, except as 
otherwise provided, are not subject to the provisions of part 19 of this 
title or this part 20 which relate to the processing and disposition of 
appeals.

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



Sec. 20.1403  Rule 1403. What constitutes clear and unmistakable error; 
what does not.

    (a) General. Clear and unmistakable error is a very specific and 
rare kind of error. It is the kind of error, of fact or of law, that 
when called to the attention of later reviewers compels the conclusion, 
to which reasonable minds could not differ, that the result would have 
been manifestly different but for the error. Generally, either the 
correct facts, as they were known at the time, were not before the 
Board, or the statutory and regulatory provisions extant at the time 
were incorrectly applied.
    (b) Record to be reviewed--(1) General. Review for clear and 
unmistakable error in a prior Board decision must be

[[Page 107]]

based on the record and the law that existed when that decision was 
made.
    (2) Special rule for Board decisions issued on or after July 21, 
1992. For a Board decision issued on or after July 21, 1992, the record 
that existed when that decision was made includes relevant documents 
possessed by the Department of Veterans Affairs not later than 90 days 
before such record was transferred to the Board for review in reaching 
that decision, provided that the documents could reasonably be expected 
to be part of the record.
    (c) Errors that constitute clear and unmistakable error. To warrant 
revision of a Board decision on the grounds of clear and unmistakable 
error, there must have been an error in the Board's adjudication of the 
appeal which, had it not been made, would have manifestly changed the 
outcome when it was made. If it is not absolutely clear that a different 
result would have ensued, the error complained of cannot be clear and 
unmistakable.
    (d) Examples of situations that are not clear and unmistakable 
error--(1) Changed diagnosis. A new medical diagnosis that ``corrects'' 
an earlier diagnosis considered in a Board decision.
    (2) Duty to assist. The Secretary's failure to fulfill the duty to 
assist.
    (3) Evaluation of evidence. A disagreement as to how the facts were 
weighed or evaluated.
    (e) Change in interpretation. Clear and unmistakable error does not 
include the otherwise correct application of a statute or regulation 
where, subsequent to the Board decision challenged, there has been a 
change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)



Sec. 20.1404  Rule 1404. Filing and pleading requirements; withdrawal.

    (a) General. A motion for revision of a decision based on clear and 
unmistakable error must be in writing, and must be signed by the moving 
party or that party's representative. The motion must include the name 
of the veteran; the name of the moving party if other than the veteran; 
the applicable Department of Veterans Affairs file number; and the date 
of the Board of Veterans' Appeals decision to which the motion relates. 
If the applicable decision involved more than one issue on appeal, the 
motion must identify the specific issue, or issues, to which the motion 
pertains. Motions which fail to comply with the requirements set forth 
in this paragraph shall be dismissed without prejudice to refiling under 
this subpart.
    (b) Specific allegations required. The motion must set forth clearly 
and specifically the alleged clear and unmistakable error, or errors, of 
fact or law in the Board decision, the legal or factual basis for such 
allegations, and why the result would have been manifestly different but 
for the alleged error. Non-specific allegations of failure to follow 
regulations or failure to give due process, or any other general, non-
specific allegations of error, are insufficient to satisfy the 
requirement of the previous sentence. Motions which fail to comply with 
the requirements set forth in this paragraph shall be dismissed without 
prejudice to refiling under this subpart.
    (c) Filing. A motion for revision of a decision based on clear and 
unmistakable error may be filed at any time. Such motions should be 
filed at the following address: Director, Management and Administration 
(01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, 
DC 20420.
    (d) Requests not filed at the Board. A request for revision 
transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) 
(relating to requests for revision filed with the Secretary other than 
at the Board) shall be treated as if a motion had been filed pursuant to 
paragraph (c) of this section.
    (e) Motions for reconsideration. A motion for reconsideration, as 
described in subpart K of this part, whenever filed, will not be 
considered a motion under this subpart.
    (f) Withdrawal. A motion under this subpart may be withdrawn at any 
time before the Board promulgates a decision on the motion. Such 
withdrawal shall be in writing, shall be filed at the address listed in 
paragraph (c) of this section, and shall be signed by the moving party 
or by such party's representative. If such a writing is timely received, 
the motion shall be dismissed

[[Page 108]]

without prejudice to refiling under this subpart.

(Authority: 38 U.S.C. 501(a), 7111)

[64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001]



Sec. 20.1405  Rule 1405. Disposition.

    (a) Docketing and assignment; notification of representative--(1) 
General. Motions under this subpart will be docketed in the order 
received and will be assigned in accordance with Sec. 19.3 of this 
title (relating to assignment of proceedings). Where an appeal is 
pending on the same underlying issue at the time the motion is received, 
the motion and the appeal may be consolidated under the same docket 
number and disposed of as part of the same proceeding. A motion may not 
be assigned to any Member who participated in the decision that is the 
subject of the motion. If a motion is assigned to a panel, the decision 
will be by a majority vote of the panel Members.
    (2) Advancement on the docket. A motion may be advanced on the 
docket subject to the same substantive and procedural requirements as 
those applicable to an appeal under Rule 900(c) (Sec. 20.900(c) of this 
part).
    (3) Notification of representative. When the Board receives a motion 
under this subpart from an individual whose claims file indicates that 
he or she is represented, the Board shall provide a copy of the motion 
to the representative before assigning the motion to a Member or panel. 
Within 30 days after the date on which the Board provides a copy of the 
motion to the representative, the representative may file a relevant 
response, including a request to review the claims file prior to filing 
a further response. Upon request made within the time allowed under this 
paragraph (a)(2), the Board shall arrange for the representative to have 
the opportunity to review the claims file, and shall permit the 
representative a reasonable time after making the file available to file 
a further response.
    (b) Evidence. No new evidence will be considered in connection with 
the disposition of the motion. Material included in the record on the 
basis of Rule 1403(b)(2) (Sec. 20.1403(b)(2) of this part) is not 
considered new evidence.
    (c) Hearing--(1) Availability. The Board may, for good cause shown, 
grant a request for a hearing for the purpose of argument. No testimony 
or other evidence will be admitted in connection with such a hearing. 
The determination as to whether good cause has been shown shall be made 
by the member or panel to whom the motion is assigned.
    (2) Submission of requests. Requests for such a hearing shall be 
submitted to the following address: Director, Management and 
Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, 
NW, Washington, DC 20420.
    (d) Decision to be by the Board. The decision on a motion under this 
subpart shall be made by the Board. There shall be no referral of the 
matter to any adjudicative or hearing official acting on behalf of the 
Secretary for the purpose of deciding the motion.
    (e) Referral to ensure completeness of the record. Subject to the 
provisions of paragraph (b) of this section, the Board may use the 
various agencies of original jurisdiction to ensure completeness of the 
record in connection with a motion under this subpart.
    (f) General Counsel opinions. The Board may secure opinions of the 
General Counsel in connection with a motion under this subpart. In such 
cases, the Board will notify the party and his or her representative, if 
any. When the opinion is received by the Board, a copy of the opinion 
will be furnished to the party's representative or, subject to the 
limitations provided in 38 U.S.C. 5701(b)(1), to the party if there is 
no representative. A period of 60 days from the date of mailing of a 
copy of the opinion will be allowed for response. The date of mailing 
will be presumed to be the same as the date of the letter or memorandum 
which accompanies the copy of the opinion for purposes of determining 
whether a response was timely filed.
    (g) Decision. The decision of the Board on a motion will be in 
writing. The decision will include separately stated findings of fact 
and conclusions of law on all material questions of fact and law 
presented on the record, the

[[Page 109]]

reasons or bases for those findings and conclusions, and an order 
granting or denying the motion.

(Authority: 38 U.S.C. 501(a), 7104(d), 7111)

[64 FR 2139, Jan. 13, 1999, as amended at 64 FR 7091, Feb. 12, 1999; 66 
FR 37151, July 17, 2001; 68 FR 53682, Sept. 12, 2003]



Sec. 20.1406  Rule 1406. Effect of revision; discontinuance or reduction 
of benefits.

    (a) General. A decision of the Board that revises a prior Board 
decision on the grounds of clear and unmistakable error has the same 
effect as if the decision had been made on the date of the prior 
decision.
    (b) Discontinuance or reduction of benefits. Revision of a prior 
Board decision under this subpart that results in the discontinuance or 
reduction of benefits is subject to laws and regulations governing the 
reduction or discontinuance of benefits by reason of erroneous award 
based solely on administrative error or errors in judgment.

(Authority: 38 U.S.C. 7111(b))



Sec. 20.1407  Rule 1407. Motions by the Board.

    If the Board undertakes, on its own motion, a review pursuant to 
this subpart, the party to that decision and that party's representative 
(if any) will be notified of such motion and provided an adequate 
summary thereof and, if applicable, outlining any proposed 
discontinuance or reduction in benefits that would result from revision 
of the Board's prior decision. They will be allowed a period of 60 days 
to file a brief or argument in answer. The failure of a party to so 
respond does not affect the finality of the Board's decision on the 
motion.

(Authority: 38 U.S.C. 501(a), 7111)



Sec. 20.1408  Rule 1408. Special rules for simultaneously contested claims.

    In the case of a motion under this subpart to revise a final Board 
decision in a simultaneously contested claim, as that term is used in 
Rule 3(o) (Sec. 20.3(o) of this part), a copy of such motion shall, to 
the extent practicable, be sent to all other contesting parties. Other 
parties have a period of 30 days from the date of mailing of the copy of 
the motion to file a brief or argument in answer. The date of mailing of 
the copy will be presumed to be the same as the date of the letter which 
accompanies the copy. Notices in simultaneously contested claims will be 
forwarded to the last address of record of the parties concerned and 
such action will constitute sufficient evidence of notice.

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



Sec. 20.1409  Rule 1409. Finality and appeal.

    (a) A decision on a motion filed by a party or initiated by the 
Board pursuant to this subpart will be stamped with the date of mailing 
on the face of the decision, and is final on such date. The party and 
his or her representative, if any, will be provided with copies of the 
decision.
    (b) For purposes of this section, a dismissal without prejudice 
under Rule 1404(a)(Sec. 20.1404(a) of this part), Rule 1404(b)(Sec. 
20.1404(b)), or Rule 1404(f)(Sec. 20.1404(f)), or a referral under Rule 
1405(e) is not a final decision of the Board.
    (c) Once there is a final decision on a motion under this subpart 
relating to a prior Board decision on an issue, that prior Board 
decision on that issue is no longer subject to revision on the grounds 
of clear and unmistakable error. Subsequent motions relating to that 
prior Board decision on that issue shall be dismissed with prejudice.
    (d) Chapter 72 of title 38, United States Code (relating to judicial 
review), applies with respect to final decisions on motions filed by a 
party or initiated by the Board pursuant to this subpart.

(Authority: 38 U.S.C. 501(a); Pub. L. 105-111)

[64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001]



Sec. 20.1410  Rule 1410. Stays pending court action.

    The Board will stay its consideration of a motion under this subpart 
upon receiving notice that the Board decision that is the subject of the 
motion has been appealed to a court of competent jurisdiction until the 
appeal has been concluded or the court has issued an

[[Page 110]]

order permitting, or directing, the Board to proceed with the motion.

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



Sec. 20.1411  Rule 1411. Relationship to other statutes.

    (a) The ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) does not 
apply to the Board's decision, on a motion under this subpart, as to 
whether there was clear and unmistakable error in a prior Board 
decision.
    (b) A motion under this subpart is not a claim subject to reopening 
under 38 U.S.C. 5108 (relating to reopening claims on the grounds of new 
and material evidence).
    (c) A motion under this subpart is not an application for benefits 
subject to any duty associated with 38 U.S.C. 5103(a) (relating to 
applications for benefits).
    (d) A motion under this subpart is not a claim for benefits subject 
to the requirements and duties associated with 38 U.S.C. 5107(a) 
(requiring ``well-grounded'' claims and imposing a duty to assist).

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

                 Appendix A to Part 20--Cross-References

------------------------------------------------------------------------
                                                     Title of cross-
      Sec. Cross-reference          referenced material or
                                                         comment
------------------------------------------------------------------------
20.1...........  38 CFR 3.103(a)..............  Statement of policy.
20.100.........  38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
20.200.........  38 CFR 20.201................  Rule 201. Notice of
                                                 Disagreement.
                 38 CFR 20.202................  Rule 202. Substantive
                                                 Appeal.
                 38 CFR 20.300-20.306.........  See re filing Notices of
                                                 Disagreement and
                                                 Substantive Appeals.
20.202.........  38 CFR 19.29.................  Statement of the Case.
                 38 CFR 19.31.................  Supplemental Statement
                                                 of the Case.
20.301.........  38 CFR 20.500................  Rule 500. Who can file
                                                 an appeal in
                                                 simultaneously
                                                 contested claims.
                 38 CFR 20.602................  Rule 602. Representation
                                                 by recognized
                                                 organizations.
                 38 CFR 20.603................  Rule 603. Representation
                                                 by attorneys-at-law.
                 38 CFR 20.604................  Rule 604. Representation
                                                 by agents.
                 38 CFR 20.605................  Rule 605. Other persons
                                                 as representative.
20.302.........  38 CFR 20.501................  Rule 501. Time limits
                                                 for filing Notice of
                                                 Disagreement,
                                                 Substantive Appeal, and
                                                 response to
                                                 Supplemental Statement
                                                 of the Case in
                                                 simultaneously
                                                 contested claims.
20.303.........  38 CFR 20.304................  Rule 304. Filing
                                                 additional evidence
                                                 does not extend time
                                                 limit for appeal.
                 38 CFR 20.503................  Rule 503. Extension of
                                                 time for filing a
                                                 Substantive Appeal in
                                                 simultaneously
                                                 contested claims.
20.305.........  38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
20.400.........  38 CFR 19.50-19.53...........  See also re
                                                 administrative appeals.
20.401.........  38 CFR 19.50-19.53...........  See also re
                                                 administrative appeals.
                 38 CFR 20.302-20.306.........  See re time limits for
                                                 perfecting an appeal.
                 38 CFR 20.501, 20.503........  See re time limits for
                                                 perfecting an appeal in
                                                 simultaneously
                                                 contested claims.
20.500.........  38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.501.........  38 CFR 20.305................  Rule 305. Computation of
                                                 time limit for filing.
                 38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
                 38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.502.........  38 CFR 20.305................  Rule 305. Computation of
                                                 time limit for filing.
                 38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
                 38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.503.........  38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.504.........  38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.600.........  38 CFR 14.626 et seq.........  See also re
                                                 representation.
                 38 CFR 20.602................  Rule 602. Representation
                                                 by recognized
                                                 organizations.
                 38 CFR 20.603................  Rule 603. Representation
                                                 by attorneys-at-law.
                 38 CFR 20.604................  Rule 604. Representation
                                                 by agents.
                 38 CFR 20.605................  Rule 605. Other persons
                                                 as representative.
20.602.........  38 CFR 14.628................  Recognition of
                                                 organizations.
                 38 CFR 14.631................  Powers of attorney.
                 38 CFR 20.100................  Rule 100. Name, business
                                                 hours, and mailing
                                                 address of the Board.
                 38 CFR 20.607................  Rule 607. Revocation of
                                                 a representative's
                                                 authority to act.
                 38 CFR 20.608................  Rule 608. Withdrawal of
                                                 services by a
                                                 representative.
                 38 CFR 20.609................  Rule 609. Payment of
                                                 representative's fees
                                                 in proceedings before
                                                 Department of Veterans
                                                 Affairs field personnel
                                                 and before the Board of
                                                 Veterans' Appeals.
                 38 CFR 20.610................  Rule 610. Payment of
                                                 representative's
                                                 expenses in proceedings
                                                 before Department of
                                                 Veterans Affairs field
                                                 personnel and before
                                                 the Board of Veterans'
                                                 Appeals.
20.603.........  38 CFR 14.629................  Requirements for
                                                 accreditation of
                                                 representatives,
                                                 agents, and attorneys.
                 38 CFR 14.631................  Powers of attorney.
                 38 CFR 20.100................  Rule 100. Name, business
                                                 hours, and mailing
                                                 address of the Board.
                 38 CFR 20.606................  Rule 606. Legal interns,
                                                 law students and
                                                 paralegals.

[[Page 111]]

 
                 38 CFR 20.607................  Rule 607. Revocation of
                                                 a representative's
                                                 authority to act.
                 38 CFR 20.608................  Rule 608. Withdrawal of
                                                 services by a
                                                 representative.
                 38 CFR 20.609................  Rule 609. Payment of
                                                 representative's fees
                                                 in proceedings before
                                                 Department of Veterans
                                                 Affairs field personnel
                                                 and before the Board of
                                                 Veterans' Appeals.
                 38 CFR 20.610................  Rule 610. Payment of
                                                 representative's
                                                 expenses in proceedings
                                                 before Department of
                                                 Veterans Affairs field
                                                 personnel and before
                                                 the Board of Veterans'
                                                 Appeals.
20.604.........  38 CFR 14.631................  Powers of attorney.
                 38 CFR 20.100................  Rule 100. Name, business
                                                 hours, and mailing
                                                 address of the Board.
                 38 CFR 20.607................  Rule 607. Revocation of
                                                 a representative's
                                                 authority to act.
                 38 CFR 20.608................  Rule 608. Withdrawal of
                                                 services by a
                                                 representative.
                 38 CFR 20.609................  Rule 609. Payment of
                                                 representative's fees
                                                 in proceedings before
                                                 Department of Veterans
                                                 Affairs field personnel
                                                 and before the Board of
                                                 Veterans' Appeals.
                 38 CFR 20.610................  Rule 610. Payment of
                                                 representative's
                                                 expenses in proceedings
                                                 before Department of
                                                 Veterans Affairs field
                                                 personnel and before
                                                 the Board of Veterans'
                                                 Appeals.
20.605.........  38 CFR 14.630................  Authorization for a
                                                 particular claim.
                 38 CFR 14.631................  Powers of attorney.
                 38 CFR 20.100................  Rule 100. Name, business
                                                 hours, and mailing
                                                 address of the Board.
                 38 CFR 20.607................  Rule 607. Revocation of
                                                 a representative's
                                                 authority to act.
                 38 CFR 20.608................  Rule 608. Withdrawal of
                                                 services by a
                                                 representative.
                 38 CFR 20.609................  Rule 609. Payment of
                                                 representative's fees
                                                 in proceedings before
                                                 Department of Veterans
                                                 Affairs field personnel
                                                 and before the Board of
                                                 Veterans' Appeals.
                 38 CFR 20.610................  Rule 610. Payment of
                                                 representative's
                                                 expenses in proceedings
                                                 before Department of
                                                 Veterans Affairs field
                                                 personnel and before
                                                 the Board of Veterans'
                                                 Appeals.
20.606.........  38 CFR 20.603................  Rule 603. Representation
                                                 by attorneys-at-law.
20.607.........  38 CFR 14.631(d).............  See also re revocation
                                                 of powers of attorney.
20.609.........  38 CFR 14.629................  Requirements for
                                                 accreditation of
                                                 representatives,
                                                 agents, and attorneys.
                 38 CFR 20.603................  Rule 603. Representation
                                                 by attorneys-at-law.
                 38 CFR 20.604................  Rule 604. Representation
                                                 by agents.
                 38 CFR 20.606................  Rule 606. Legal interns,
                                                 law students and
                                                 paralegals.
                 38 CFR 20.610................  Rule 610. Payment of
                                                 representative's
                                                 expenses in proceedings
                                                 before Department of
                                                 Veterans Affairs field
                                                 personnel and before
                                                 the Board of Veterans'
                                                 Appeals.
20.610.........  38 CFR 20.609................  Rule 609. Payment of
                                                 representative's fees
                                                 in proceedings before
                                                 Department of Veterans
                                                 Affairs field personnel
                                                 and before the Board of
                                                 Veterans' Appeals.
20.611.........  38 CFR 1.525(d), 14.631(e)...  See also re continuation
                                                 of authority conferred
                                                 by powers of attorney
                                                 upon the death of a
                                                 claimant.
20.701.........  38 CFR 20.710................  Rule 710. Witnesses at
                                                 hearings.
20.702.........  38 CFR 20.704................  Rule 704. Scheduling and
                                                 notice of hearings
                                                 conducted by traveling
                                                 Sections of the Board
                                                 of Veterans' Appeals at
                                                 Department of Veterans
                                                 Affairs facilities.
                 38 CFR 20.713................  Rule 713. Hearings in
                                                 simultaneously
                                                 contested claims.
20.703.........  38 CFR 20.201................  Rule 201. Notice of
                                                 Disagreement.
20.704.........  38 CFR 20.702................  Rule 702. Scheduling and
                                                 notice of hearings
                                                 conducted by the Board
                                                 of Veterans' Appeals in
                                                 Washington, DC, and by
                                                 agency of original
                                                 jurisdiction personnel
                                                 acting on behalf of the
                                                 Board of Veterans'
                                                 Appeals at field
                                                 facilities.
20.706.........  38 CFR 20.700(c).............  See also re the
                                                 presiding Member's role
                                                 in the conduct of
                                                 hearings.
                 38 CFR 20.708................  Rule 708. Prehearing
                                                 conference.
                 38 CFR 20.709................  Rule 709. Procurement of
                                                 additional evidence
                                                 following a hearing.
20.707.........  38 CFR 19.11.................  Reconsideration Section.
20.708.........  38 CFR 20.606(d).............  See re the prehearing
                                                 conference required
                                                 when a legal intern,
                                                 law student, or
                                                 paralegal is to
                                                 participate in a
                                                 hearing held before a
                                                 traveling Section of
                                                 the Board.
20.709.........  38 CFR 19.37.................  Consideration of
                                                 additional evidence
                                                 received by the agency
                                                 of original
                                                 jurisdiction after an
                                                 appeal has been
                                                 initiated.
                 38 CFR 20.1304...............  Rule 1304. Request for
                                                 change in
                                                 representation, request
                                                 for personal hearing,
                                                 or submission of
                                                 additional evidence
                                                 following certification
                                                 of an appeal to the
                                                 Board of Veterans'
                                                 Appeals.
20.710.........  38 CFR 20.711................  Rule 711. Subpoenas.
20.711.........  38 CFR 2.1...................  See for further
                                                 information on
                                                 subpoenas, including
                                                 action to be taken in
                                                 the event of
                                                 noncompliance.
20.713.........  38 CFR 20.702................  Rule 702. Scheduling and
                                                 notice of hearings
                                                 conducted by the Board
                                                 of Veterans' Appeals in
                                                 Washington, DC, and by
                                                 agency of original
                                                 jurisdiction personnel
                                                 acting on behalf of the
                                                 Board of Veterans'
                                                 Appeals at field
                                                 facilities.
                 38 CFR 20.704................  Rule 704. Scheduling and
                                                 notice of hearings
                                                 conducted by traveling
                                                 Sections of the Board
                                                 of Veterans' Appeals at
                                                 Department of Veterans
                                                 Affairs facilities.
20.715.........  38 CFR 20.706................  Rule 706. Functions of
                                                 the presiding Member.
20.800.........  38 CFR 20.304................  Rule 304. Filing
                                                 additional evidence
                                                 does not extend time
                                                 limit for appeal.
                 38 CFR 20.709................  Rule 709. Procurement of
                                                 additional evidence
                                                 following a hearing.
                 38 CFR 20.1304...............  Rule 1304. Request for
                                                 change in
                                                 representation, request
                                                 for personal hearing,
                                                 or submission of
                                                 additional evidence
                                                 following certification
                                                 of an appeal to the
                                                 Board of Veterans'
                                                 Appeals.
20.901.........  38 CFR 14.507................  See re opinions of the
                                                 General Counsel of the
                                                 Department of Veterans
                                                 Affairs.
20.903.........  38 CFR 20.305................  Rule 305. Computation of
                                                 time limit for filing.
                 38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
20.1003........  38 CFR 20.700(b).............  See re submission of
                                                 written brief and of
                                                 oral argument on audio
                                                 cassette.
20.1105........  38 CFR 3.156.................  New and material
                                                 evidence.
                 38 CFR 3.160(e)..............  Reopened claim.

[[Page 112]]

 
                 38 CFR 20.1304(b)(1).........  See re request for a
                                                 personal hearing or
                                                 submission of
                                                 additional evidence
                                                 more than 60 days after
                                                 a case has been
                                                 certified to the Board
                                                 of Veterans' Appeals as
                                                 possible basis for a
                                                 reopened claim.
20.1106........  38 CFR 3.22(a)(2)............  See re correction of a
                                                 rating, after a
                                                 veteran's death, based
                                                 on clear and
                                                 unmistakable error, in
                                                 cases involving claims
                                                 for benefits under the
                                                 provisions of 38 U.S.C.
                                                 1318.
20.1300........  38 CFR 1.500-1.527...........  See re the release of
                                                 information from
                                                 Department of Veterans
                                                 Affairs claimant
                                                 records.
                 38 CFR 1.550-1.559...........  See re the release of
                                                 information from
                                                 Department of Veterans
                                                 Affairs records other
                                                 than claimant records.
                 38 CFR 1.575-1.584...........  See re safeguarding
                                                 personal information in
                                                 Department of Veterans
                                                 Affairs records.
                 38 CFR 20.1301...............  Rule 1301. Disclosure of
                                                 information.
20.1301........  38 CFR 1.577.................  Access to records.
20.1302........  38 CFR 20.611................  Rule 611. Continuation
                                                 of representation
                                                 following death of a
                                                 claimant or appellant.
20.1304........  38 CFR 3.103(c), 20.700-       See also re hearings.
                  20.717.
                 38 CFR 3.156.................  New and material
                                                 evidence.
                 38 CFR 3.160(e)..............  Reopened claim.
                 38 CFR 20.305................  Rule 305. Computation of
                                                 time limit for filing.
                 38 CFR 20.306................  Rule 306. Legal
                                                 holidays.
------------------------------------------------------------------------



PART 21_VOCATIONAL REHABILITATION AND EDUCATION--Table of Contents




     Subpart A_Vocational Rehabilitation Under 38 U.S.C. Chapter 31

                   Vocational Rehabilitation Overview

Sec.
21.1 Training and rehabilitation for veterans with service-connected 
          disabilities.

                             Nonduplication

21.21 Election of benefits under education programs administered by the 
          Department of Veterans Affairs.
21.22 Nonduplication--Federal programs.

                                 Claims

21.30 Claims.
21.31 Informal claim.
21.32 Time limit.

                               Definitions

21.35 Definitions.

                            Basic Entitlement

21.40 Basic entitlement.

                         Periods of Eligibility

21.41 Basic period of eligibility.
21.42 Basic period of eligibility deferred.
21.44 Extension beyond basic period of eligibility because of serious 
          employment handicap.
21.45 Extension beyond basic period of eligibility for a program of 
          independent living services.
21.47 Eligibility for employment assistance.
21.48 Severance of service-connection--reduction to noncompensable 
          degree.

                     Initial and Extended Evaluation

21.50 Initial evaluation.
21.51 Employment handicap.
21.52 Serious employment handicap.
21.53 Reasonable feasibility of achieving a vocational goal.
21.57 Extended evaluation.
21.58 Redetermination of employment handicap and serious employment 
          handicap.
21.59 Review and appeal of decisions on eligibility and entitlement.

                     Vocational Rehabilitation Panel

21.60 Vocational Rehabilitation Panel.
21.62 Duties of the Vocational Rehabilitation Panel.

                   Duration of Rehabilitation Programs

21.70 Vocational rehabilitation.
21.72 Rehabilitation to the point of employability.
21.73 Duration of employment assistance programs.
21.74 Extended evaluation.
21.76 Independent living.
21.78 Approving more than 48 months of rehabilitation.
21.79 Determining entitlement usage under Chapter 31.

               Individualized Written Rehabilitation Plan

21.80 Requirement for a rehabilitation plan.
21.82 Completing the plan under Chapter 31.
21.84 Individualized written rehabilitation plan.
21.86 Individualized extended evaluation plan.
21.88 Individualized employment assistance plan.
21.90 Individualized independent living plan.
21.92 Preparation of the plan.
21.94 Changing the plan.

[[Page 113]]

21.96 Review of the plan.
21.98 Appeal of disagreement regarding development of, or change in, the 
          plan.

                               Counseling

21.100 Counseling.

              Educational and Vocational Training Services

21.120 Educational and vocational training services.
21.122 School course.
21.123 On-job course.
21.124 Combination course.
21.126 Farm cooperative course.
21.128 Independent study course.
21.129 Home study course.
21.130 Educational and vocational courses outside the United States.
21.132 Repetition of the course.
21.134 Limitation on flight training.

                     Special Rehabilitation Services

21.140 Evaluation and improvement of rehabilitation potential.
21.142 Adult basic education.
21.144 Vocational course in sheltered workshop or rehabilitation 
          facility.
21.146 Independent instructor course.
21.148 Tutorial assistance.
21.150 Reader service.
21.152 Interpreter service for the hearing impaired.
21.154 Special transportation assistance.
21.155 Services to a veteran's family.
21.156 Other incidental goods and services.

                       Independent Living Services

21.160 Independent living services.
21.162 Participation in a program of independent living services.

                               Case Status

21.180 Case status system.
21.182 ``Applicant'' status.
21.184 ``Evaluation and planning'' status.
21.186 ``Ineligible'' status.
21.188 ``Extended evaluation'' status.
21.190 ``Rehabilitation to the point of employability'' status.
21.192 ``Independent living program'' status.
21.194 ``Employment services'' status.
21.196 ``Rehabilitated'' status.
21.197 ``Interrupted'' status.
21.198 ``Discontinued'' status.

                                Supplies

21.210 Supplies.
21.212 General policy in furnishing supplies during periods of 
          rehabilitation.
21.214 Furnishing supplies for special programs.
21.216 Special equipment.
21.218 Methods of furnishing supplies.
21.219 Supplies consisting of clothing, magazines and periodicals, and 
          items which may be personally used by the veteran.
21.220 Replacement of supplies.
21.222 Release of, and repayment for, training and rehabilitation 
          supplies.
21.224 Prevention of abuse.

                      Medical and Related Services

21.240 Medical treatment, care and services.
21.242 Resources for provision of treatment, care and services.

                           Employment Services

21.250 Overview of employment services.
21.252 Job development and placement services.
21.254 Supportive services.
21.256 Incentives for employers.
21.257 Self-employment.
21.258 Special assistance for veterans in self-employment.

                      Monetary Assistance Services

21.260 Subsistence allowance.
21.262 Procurement and reimbursement of cost for training and 
          rehabilitation services, supplies, or facilities.
21.264 Election of payment at the 38 U.S.C. chapter 30 educational 
          assistance rate.
21.266 Payment of subsistence allowance under special conditions.
21.268 Employment adjustment allowance.
21.270 Payment of subsistence allowance during leave and between periods 
          of instruction.
21.272 Veteran-student services.
21.274 Revolving fund loan.
21.276 Incarcerated veterans.

                    Entering a Rehabilitation Program

21.282 Effective date of induction into a rehabilitation program.
21.283 Rehabilitated.
21.284 Reentrance into a rehabilitation program.

                 Course Approval and Facility Selection

21.290 Training and rehabilitation resources.
21.292 Course approvals.
21.294 Selecting the training or rehabilitation facility.
21.296 Selecting a training establishment for on-job training.
21.298 Selecting a farm.
21.299 Use of Government facilities for on-job training or work 
          experience at no or nominal pay.

                             Rate of Pursuit

21.310 Rate of pursuit of a rehabilitation program.
21.312 Reduced work tolerance.
21.314 Pursuit of training under special conditions.

[[Page 114]]

 Authorization of Subsistence Allowance and Training and Rehabilitation 
                                Services

21.320 Awards for subsistence allowance and authorization of 
          rehabilitation services.
21.322 Commencing dates of subsistence allowance.
21.324 Reduction or termination dates of subsistence allowance.
21.326 Authorization of employment services.
21.328 Two veteran cases--dependents.
21.330 Apportionment.
21.332 Payments of subsistence allowance.
21.334 Election of payment at the Chapter 30 rate.

                            Leaves of Absence

21.340 Introduction.
21.342 Leave accounting policy.
21.344 Facility offering training or rehabilitation services.
21.346 Facility temporarily not offering training or rehabilitation 
          services.
21.348 Leave following completion of a period of training or 
          rehabilitation services.
21.350 Unauthorized absences.

                         Conduct and Cooperation

21.362 Satisfactory conduct and cooperation.
21.364 Unsatisfactory conduct and cooperation.

           Interregional and Intraregional Travel of Veterans

21.370 Intraregional travel at government expense.
21.372 Interregional transfer at government expense.
21.374 Authorization for travel of attendants.
21.376 Travel expenses for initial evaluation and counseling.

                   Personnel Training and Development

21.380 Establishment of qualifications for personnel providing 
          assistance under Chapter 31.
21.382 Training and staff development for personnel providing assistance 
          under Chapter 31.

              Rehabilitation Research and Special Projects

21.390 Rehabilitation research and special projects.

             Veterans' Advisory Committee on Rehabilitation

21.400 Veterans' Advisory Committee on Rehabilitation.
21.402 Responsibilities of the Veterans' Advisory Committee on 
          Rehabilitation.

                 Additional Administrative Consideration

21.410 Delegation of authority.
21.412 Finality of decisions.
21.414 Revision of decision.

                          Informing the Veteran

21.420 Informing the veteran.
21.422 Reduction in subsistence allowance following the loss of a 
          dependent.

                             Accountability

21.430 Accountability for authorization and payment of training and 
          rehabilitation services.

      Subpart B_Claims and Applications for Educational Assistance

                                 Claims

21.1029 Definitions.
21.1030 Claims.
21.1031 VA responsibilities when a claim is filed.
21.1032 Time limits.

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

                                 General

21.3001 Delegation of authority.
21.3002 Administration of Survivors' and Dependents' Educational 
          Assistance Program.
21.3020 Educational assistance.
21.3021 Definitions.
21.3022 Nonduplication--programs administered by VA.
21.3023 Nonduplication; pension, compensation, and dependency and 
          indemnity compensation.
21.3024 Nonduplication; Federal Employees' Compensation Act.
21.3025 Nonduplication; Federal programs.

                                 Claims

21.3030 Claims.

                       Eligibility and Entitlement

21.3040 Eligibility; child.
21.3041 Periods of eligibility; child.
21.3042 Service with Armed Forces.
21.3043 Suspension of program; child.
21.3044 Entitlement.
21.3045 Entitlement charges.
21.3046 Periods of eligibility; spouses and surviving spouses.
21.3047 Extended period of eligibility due to physical or mental 
          disability.

                               Counseling

21.3100 Counseling.
21.3102 Required counseling.
21.3103 Failure to cooperate.

[[Page 115]]

21.3104 Special training.
21.3105 Travel expenses.

                                Payments

21.3130 Educational assistance.
21.3131 Rates--educational assistance allowance--38 U.S.C. chapter 35.
21.3132 Reductions in survivors' and dependents' educational assistance.
21.3133 Payment procedures.
21.3135 Reduction or discontinuance dates for awards of educational 
          assistance allowance.

                      Special Restorative Training

21.3300 Special restorative training.
21.3301 Need.
21.3302 Agreements.
21.3303 Extent of training.
21.3304 Assistance during training.
21.3305 ``Interrupted'' status.
21.3306 Reentrance after interruption.
21.3307 ``Discontinued'' status.

                 Payments; Special Restorative Training

21.3330 Payments.
21.3331 Commencing date.
21.3332 Discontinuance dates.
21.3333 Rates.

                     Special Assistance and Training

21.3344 Special assistance for the educationally disadvantaged.

       Subpart D_Administration of Educational Assistance Programs

                             Administrative

21.4001 Delegations of authority.
21.4002 Finality of decisions.
21.4003 Revision of decisions.
21.4005 Conflicting interests.
21.4006 False or misleading statements.
21.4007 Forfeiture.
21.4008 Prevention of overpayments.
21.4009 Overpayments; waiver or recovery.

                                 General

21.4020 Two or more programs.
21.4022 Nonduplication--programs administered by VA.

               Payments; Educational Assistance Allowance

21.4131 Commencing dates.
21.4135 Discontinuance dates.
21.4136 Withdrawals or nonpunitive grades may result in nonpayment.
21.4138 Certifications and release of payments.
21.4145 Work-study allowance.
21.4146 Assignments of benefits prohibited.

                        State Approving Agencies

21.4150 Designation.
21.4151 Cooperation.
21.4152 Control by agencies of the United States.
21.4153 Reimbursement of expenses.
21.4154 Report of activities.
21.4155 Evaluations of State approving agency performance.

                                 Schools

21.4200 Definitions.
21.4201 Restrictions on enrollment; percentage of students receiving 
          financial support.
21.4202 Overcharges; restrictions on enrollments.
21.4203 Reports--requirements.
21.4204 Periodic certifications.
21.4206 Reporting fee.
21.4209 Examination of records.
21.4210 Suspension and discontinuance of educational assistance payments 
          and of enrollments or reenrollments for pursuit of approved 
          courses.
21.4211 Composition, jurisdiction, and duties of Committee on 
          Educational Allowances.
21.4212 Referral to Committee on Educational Allowances.
21.4213 Notice of hearing by Committee on Educational Allowances.
21.4214 Hearing rules and procedures for Committee on Educational 
          Allowances.
21.4215 Decision of Director of VA facility of jurisdiction.
21.4216 Review of decision of Director of VA facility of jurisdiction.

                          Programs of Education

21.4232 Specialized vocational training--38 U.S.C. Chapter 35.
21.4233 Combination.
21.4234 Change of program.
21.4235 Programs of education that include flight training.
21.4236 Tutorial assistance.

                                 Courses

21.4250 Approval of courses.
21.4251 Minimum period of operation requirement for educational 
          institutions.
21.4252 Courses precluded.
21.4253 Accredited courses.
21.4254 Nonaccredited courses.
21.4255 Refund policy; nonaccredited courses.
21.4256 Correspondence programs and courses.
21.4257 Cooperative courses.
21.4258 Notice of approval.
21.4259 Suspension or disapproval.
21.4260 Courses in foreign countries.
21.4261 Apprentice courses.
21.4262 Other training on-the-job courses.
21.4263 Approval of flight training courses.
21.4264 Farm cooperative courses.

[[Page 116]]

21.4265 Practical training approved as institutional training or on-job 
          training.
21.4266 Courses offered at subsidiary branches or extensions.
21.4267 Approval of independent study.

                    Assessment and Pursuit of Courses

21.4270 Measurement of courses.
21.4271 [Reserved]
21.4272 Collegiate course measurement.
21.4273 Collegiate graduate.
21.4274 Law courses.
21.4275 Practical training courses; measurement.
21.4277 Discontinuance: unsatisfactory progress, conduct and attendance.
21.4278 Reentrance after discontinuance.
21.4279 Combination correspondence-residence program.
21.4280 [Reserved]

Subpart E [Reserved]

                        Subpart F_Education Loans

21.4500 Definitions.
21.4501 Eligibility.
21.4502 Applications.
21.4503 Determination of loan amount.
21.4504 Promissory note.
21.4505 Check delivery.
21.4507 Advertising.

Subparts F-1--F-3 [Reserved]

  Subpart G_Post-Vietnam Era Veterans' Educational Assistance Under 38 
                            U.S.C. Chapter 32

                             Administrative

21.5001 Administration of benefits: 38 U.S.C. Chapter 32.

                                 General

21.5020 Post-Vietnam era veterans' educational assistance.
21.5021 Definitions.
21.5022 Eligibility under more than one program.
21.5023 Nonduplication; Federal programs.

                         Claims and Applications

21.5030 Applications, claims, and time limits.

                               Eligibility

21.5040 Basic eligibility.
21.5041 Periods of entitlement.
21.5042 Extended period of eligibility.

                              Participation

21.5050 Application requirements for participation.
21.5052 Contribution requirements.
21.5053 Restoration of contributions (Persian Gulf War).
21.5054 Dates of participation.
21.5058 Resumption of participation.
21.5060 Disenrollment.
21.5062 Date of disenrollment.
21.5064 Refund upon disenrollment.
21.5065 Refunds without disenrollment.
21.5066 Suspension of participation.
21.5067 Death of participant.

                               Entitlement

21.5070 Entitlement.
21.5071 Months of entitlement allowed.
21.5072 Entitlement charge.
21.5076 Entitlement charge--overpayment cases.
21.5078 Interruption to conserve entitlement.

                               Counseling

21.5100 Counseling.
21.5103 Travel expenses.

               Payments; Educational Assistance Allowance

21.5130 Payments; educational assistance allowance.
21.5131 Educational assistance allowance.
21.5132 Criteria used in determining benefit payments.
21.5133 Certifications and release of payments.
21.5134 Restrictions on paying benefits to servicepersons.
21.5135 Advance payments.
21.5136 Benefit payments--secondary school program.
21.5138 Computation of benefit payments and monthly rates.
21.5139 Computation of benefit payments for incarcerated individuals.
21.5141 Tutorial assistance.

                        State Approving Agencies

21.5150 State approving agencies.

                                 Schools

21.5200 Schools.

                          Programs of Education

21.5230 Programs of education.
21.5231 Combination.
21.5232 Change of program.

                                 Courses

21.5250 Courses.

                    Assessment and Pursuit of Course

21.5270 Assessment and pursuit of course.

                  Educational Assistance Pilot Program

21.5290 Educational Assistance Pilot Program.
21.5292 Reduced monthly contribution for certain individuals.
21.5294 Transfer of entitlement.

[[Page 117]]

21.5296 Extended period of eligibility.

              Subpart H_Educational Assistance Test Program

21.5701 Establishment of educational assistance test program.
21.5703 Overview.
21.5705 Transfer of authority.

                                 General

21.5720 Definitions.
21.5725 Obtaining benefits.

                         Claims and Applications

21.5730 Applications, claims, and time limits.

                       Eligibility and Entitlement

21.5740 Eligibility.
21.5741 Eligibility under more than one program.
21.5742 Entitlement.
21.5743 Transfer of entitlement.
21.5744 Charges against entitlement.
21.5745 Period of entitlement.

                                 Courses

21.5800 Courses.

                             Certifications

21.5810 Certifications of enrollment.
21.5812 Reports of withdrawals and terminations of attendance and 
          changes in training time.
21.5816 False or fraudulent claims.

       Payments--Educational Assistance and Subsistence Allowance

21.5820 Educational assistance.
21.5822 Subsistence allowance.
21.5824 Nonduplication: Federal programs.
21.5828 False or misleading statements.
21.5830 Payment of educational assistance.
21.5831 Commencing date of subsistence allowance.
21.5834 Discontinuance dates: General.
21.5835 Specific discontinuance dates.
21.5838 Overpayments.

                         Measurement of Courses

21.5870 Measurement of courses.

                             Administrative

21.5900 Administration of benefits program--chapter 107, title 10 U.S.C.
21.5901 Delegations of authority.

   Subpart I_Temporary Program of Vocational Training for Certain New 
                           Pension Recipients

                                 General

21.6001 Temporary vocational training program for certain pension 
          recipients.
21.6005 Definitions.
21.6010 Applicability of rules and administrative procedures under 38 
          U.S.C., chapter 31.
21.6015 Claims and elections.
21.6021 Nonduplication--38 U.S.C., chapters 30, 31, 32, 34 and 35.

                     Basic Eligibility Requirements

21.6040 Eligibility for vocational training and employment assistance.
21.6042 Entry, reentry and completion.

                               Evaluation

21.6050 Participation of eligible veterans in an evaluation.
21.6052 Evaluations.
21.6054 Criteria for determining good employment potential.
21.6056 Cooperation of the veteran in an evaluation.
21.6058 Consequences of evaluation.
21.6059 Limitations on the number of evaluations.

             Services and Assistance to Program Participants

21.6060 Services and assistance.

                          Duration of Training

21.6070 Basic duration of a vocational training program.
21.6072 Extending the duration of a vocational training program.
21.6074 Computing the period of vocational training program 
          participation.

               Individualized Written Rehabilitation Plan

21.6080 Requirement for an individualized written rehabilitation or 
          employment assistance plan.
21.6082 Completing the plan.

                               Counseling

21.6100 Counseling.

              Educational and Vocational Training Services

21.6120 Educational and vocational training services.

         Evaluation and Improvement of Rehabilitation Potential

21.6140 Evaluation and improvement of rehabilitation potential.

                       Independent Living Services

21.6160 Independent living services.

                           Case Status System

21.6180 Case status system.

[[Page 118]]

                                Supplies

21.6210 Supplies.

                      Medical and Related Services

21.6240 Medical treatment, care and services.
21.6242 Resources for provision of medical treatment, care and services.

                          Financial Assistance

21.6260 Financial assistance.

                      Entering Vocational Training

21.6282 Effective dates of induction into and termination of vocational 
          training.
21.6284 Reentrance into a training program.
21.6290 Training resources.

                             Rate of Pursuit

21.6310 Rate of pursuit.

                        Authorization of Services

21.6320 Authorization of services under Chapter 31 rules.

                            Leaves of Absence

21.6340 Leaves of absence.

                  Satisfactory Conduct and Cooperation

21.6362 Satisfactory conduct and cooperation.

                         Transportation Services

21.6370 Authorization of transportation services.

                    Additional Applicable Regulations

21.6380 Additional applicable Chapter 31 regulations.

                         Delegation of Authority

21.6410 Delegation of authority.

               Coordination with the Adjudication Division

21.6420 Coordination with the Adjudication Division.

  Subpart J_Temporary Program of Vocational Training and Rehabilitation

21.6501 Overview.
21.6503 Definitions.
21.6505 Participation in the temporary program.
21.6507 Special benefits for qualified veterans under test program.
21.6509 Notice to qualified veterans.
21.6511-21.6513 [Reserved]
21.6515 Formulation of rehabilitation plan.
21.6517 [Reserved]
21.6519 Eligibility of qualified veterans for employment and counseling 
          services.
21.6521 Employment of qualified veterans.
21.6523 Entry and reentry into a program of counseling and employment 
          services under 38 U.S.C. 3104(a) (2) and (5).
21.6525 [Reserved]

Subpart K_All Volunteer Force Educational Assistance Program (Montgomery 
                          GI Bill_Active Duty)

21.7000 Establishment of educational assistance program.

                               Definitions

21.7020 Definitions.

                         Claims and Applications

21.7030 Applications, claims, and time limits.
21.7032 Time limits for making elections.

                               Eligibility

21.7040 Categories of basic eligibility.
21.7042 Basic eligibility requirements.
21.7044 Persons with eligibility under 38 U.S.C. chapter 34.
21.7045 Eligibility based on involuntary separation, voluntary 
          separation, or participation in the Post-Vietnam Era Veterans' 
          Educational Assistance Program.
21.7046 Eligibility for supplemental educational assistance.
21.7050 Ending dates of eligibility.
21.7051 Extended period of eligibility.

                               Entitlement

21.7070 Entitlement.
21.7072 Entitlement to basic educational assistance.
21.7073 Entitlement for some individuals who establish eligibility 
          during the open period or who establish eligibility before 
          involuntary separation.
21.7074 Entitlement to supplemental educational assistance.
21.7076 Entitlement charges.

                               Counseling

21.7100 Counseling.
21.7103 Travel expenses.

                          Programs of Education

21.7110 Selection of a program of education.
21.7112 Programs of education combining two or more types of courses.
21.7114 Change of program.

                                 Courses

21.7120 Courses included in programs of education.
21.7122 Courses precluded.
21.7124 Overcharges.

                    Payments--Educational Assistance

21.7130 Educational assistance.
21.7131 Commencing dates.

[[Page 119]]

21.7133 Suspension or discontinuance of payments.
21.7135 Discontinuance dates.
21.7136 Rates of payment of basic educational assistance.
21.7137 Rates of payment of basic educational assistance for individuals 
          with remaining entitlement under 38 U.S.C. chapter 34.
21.7138 Rates of supplemental educational assistance.
21.7139 Conditions which result in reduced rates or no payment.
21.7140 Certifications and release of payments.
21.7141 Tutorial assistance.
21.7142 Accelerated payments.
21.7143 Nonduplication of educational assistance.
21.7144 Overpayments.

                           Pursuit of Courses

21.7150 Pursuit.
21.7151 Advance payment and accelerated payment certifications.
21.7152 Certification of enrollment.
21.7153 Progress and conduct.
21.7154 Pursuit and absences.
21.7156 Other required reports.
21.7158 False, late, or missing reports.
21.7159 Reporting fee.

                            Course Assessment

21.7170 Course measurement.
21.7172 Measurement of concurrent enrollments.

                        State Approving Agencies

21.7200 State approving agencies.

                           Approval of Courses

21.7220 Course approval.
21.7222 Courses and enrollments which may not be approved.
21.7280 Death benefit.

                             Administrative

21.7301 Delegations of authority.
21.7302 Finality of decisions.
21.7303 Revision of decisions.
21.7305 Conflicting interests.
21.7307 Examination of records.
21.7310 Civil rights.
21.7320 Procedural protection; reduction following loss of dependent.

  Subpart L_Educational Assistance for Members of the Selected Reserve

21.7500 Establishment and purpose of educational assistance program.

                               Definitions

21.7520 Definitions.

                         Claims and Applications

21.7530 Applications, claims, and time limits.

                               Eligibility

21.7540 Eligibility for educational assistance.
21.7550 Ending dates of eligibility.
21.7551 Extended period of eligibility.

                               Entitlement

21.7570 Entitlement.
21.7576 Entitlement charges.

                               Counseling

21.7600 Counseling.
21.7603 Travel expenses.

                          Programs of Education

21.7610 Selection of a program of education.
21.7612 Programs of education combining two or more types of courses.
21.7614 Changes of program.

                                 Courses

21.7620 Courses included in programs of education.
21.7622 Courses precluded.
21.7624 Overcharges and restrictions on enrollments.

                    Payments--Educational Assistance

21.7630 Educational assistance.
21.7631 Commencing dates.
21.7633 Suspension or discontinuance of payments.
21.7635 Discontinuance dates.
21.7636 Rates of payment.
21.7639 Conditions which result in reduced rates or no payment.
21.7640 Release of payments.
21.7642 Nonduplication of educational assistance.
21.7644 Overpayments.

                 Pursuit of Course and Required Reports

21.7650 Pursuit.
21.7652 Certification of enrollment and verification of pursuit.
21.7653 Progress, conduct, and attendance.
21.7654 Pursuit and absences.
21.7656 Other required reports.
21.7658 False, late, or missing reports.
21.7659 Reporting fee.

                            Course Assessment

21.7670 Measurement of courses leading to a standard, undergraduate 
          college degree.
21.7672 Measurement of courses not leading to a standard college degree.
21.7673 Measurement of concurrent enrollments.
21.7674 Measurement of practical training courses.

[[Page 120]]

                        State Approving Agencies

21.7700 State approving agencies.

                           Approval of Courses

21.7720 Course approval.
21.7722 Courses and enrollments which may not be approved.

                             Administrative

21.7801 Delegation of authority.
21.7802 Finality of decisions.
21.7803 Revision of decisions.
21.7805 Conflicting interests.
21.7807 Examination of records.

Subpart M_Vocational Training and Rehabilitation for Certain Children of 
         Vietnam Veterans_Spina Bifida and Covered Birth Defects

                                 General

Sec.
21.8010 Definitions and abbreviations.
21.8012 Vocational training program for certain children of Vietnam 
          veterans--spina bifida and covered birth defects.
21.8014 Application.
21.8016 Nonduplication of benefits.

                     Basic Entitlement Requirements

21.8020 Entitlement to vocational training and employment assistance.
21.8022 Entry and reentry.

                               Evaluation

21.8030 Requirement for evaluation of child.
21.8032 Evaluations.

             Services and Assistance to Program Participants

21.8050 Scope of training, services, and assistance.

                     Duration of Vocational Training

21.8070 Basic duration of a vocational training program.
21.8072 Authorizing training, services, and assistance beyond the 
          initial individualized written plan of vocational 
          rehabilitation.
21.8074 Computing the period for vocational training program 
          participation.

        Individualized Written Plan of Vocational Rehabilitation

21.8080 Requirement for an individualized written plan of vocational 
          rehabilitation.
21.8082 Inability of child to complete individualized written plan of 
          vocational rehabilitation or achieve vocational goal.

                               Counseling

21.8100 Counseling.

              Vocational Training, Services, and Assistance

21.8120 Vocational training, services, and assistance.

           Evaluation and Improvement of Vocational Potential

21.8140 Evaluation and improvement of vocational potential.

                                Supplies

21.8210 Supplies.

                              Program Costs

21.8260 Training, Services, and Assistance Costs.

    Vocational Training Program Entrance, Termination, and Resources

21.8280 Effective date of induction into a vocational training program.
21.8282 Termination of a vocational training program.
21.8284 Additional vocational training.
21.8286 Training resources.

                             Rate of Pursuit

21.8310 Rate of pursuit.

                        Authorization of Services

21.8320 Authorization of services.

                            Leaves of Absence

21.8340 Leaves of absence.

                  Satisfactory Conduct and Cooperation

21.8360 Satisfactory conduct and cooperation.

                         Transportation Services

21.8370 Authorization of transportation services.

                    Additional Applicable Regulations

21.8380 Additional applicable regulations.

                         Delegation of Authority

21.8410 Delegation of authority.



     Subpart A_Vocational Rehabilitation Under 38 U.S.C. Chapter 31

    Authority: 38 U.S.C. 501(a), 3100-3121, unless otherwise noted.

    Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.

[[Page 121]]

                   Vocational Rehabilitation Overview



Sec. 21.1  Training and rehabilitation for veterans with service-connected 
disabilities.

    (a) Purposes. The purposes of this program are to provide to 
eligible veterans with compensable service-connected disabilities all 
services and assistance necessary to enable them to achieve maximum 
independence in daily living and, to the maximum extent feasible, to 
become employable and to obtain and maintain suitable employment.


(Authority: 38 U.S.C. 3100)

    (b) Basic requirements. Before a service-disabled veteran may 
receive training and rehabilitation services under Chapter 31, Title 38 
U.S.C., three basic requirements must be met:
    (1) The Department of Veterans Affairs must first find that the 
veteran has basic entitlement to services as prescribed by Sec. 21.40.


(Authority: 38 U.S.C. 3102)

    (2) The services necessary for training and rehabilitation must be 
identified by the Department of Veterans Affairs and the veteran.


(Authority: 38 U.S.C. 3106)

    (3) An individual written plan must be developed by the Department 
of Veterans Affairs and the veteran describing the goals of the program 
and the means through which these goals will be achieved.


(Authority: 38 U.S.C. 3107)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

                             Nonduplication



Sec. 21.21  Election of benefits under education programs administered by 
the Department of Veterans Affairs.

    (a) Election of benefits required. A veteran must make an election 
of benefits among the programs of education administered by VA for which 
he or she may be eligible. A veteran who has basic entitlement to 
rehabilitation under chapter 31 and is also eligible for assistance 
under any of the other education programs administered by VA must make 
an election of benefits between chapter 31 and any other VA program of 
education for which he or she may be eligible. The veteran may reelect 
at any time if he or she is otherwise eligible. (See Sec. Sec. 21.264 
and 21.334.)


(Authority: 38 U.S.C. 1781(b))

    (b) Use of prior training in formulating a rehabilitation program. 
If a veteran has pursued an educational or training program under an 
education program listed in Sec. 21.4020 of this part, the earlier 
program of education or special restorative training shall be utilized 
to the extent practicable.


(Authority: 38 U.S.C. 3695(b))

[53 FR 880, Jan. 14, 1988, as amended at 57 FR 57108, Dec. 3, 1992]



Sec. 21.22  Nonduplication--Federal programs.

    (a) Allowances. A service-disabled veteran who is eligible for 
benefits under Chapter 31, may not receive a subsistence allowance or 
elect payment of an allowance at the educational assistance rate under 
Chapter 30 pursuant to Sec. 21.264 if the veteran:
    (1) Is on active duty and is pursuing a course of education which is 
being paid for by the Armed Forces (or by the Department of Health and 
Human Services in the case of the Public Health Service), or
    (2) Is attending a course of education or training paid for under 
Chapter 41, Title 5 U.S.C. and whose full salary is being paid to such 
veteran while so training.


(Authority: 38 U.S.C. 3681; Pub. L. 98-525)

    (b) Services which may be authorized. A service-disabled veteran who 
is in one of the two categories defined in paragraph (a) of this section 
is entitled to receive all benefits, other than an allowance, to which 
he or she is otherwise entitled under Chapter 31, including:
    (1) Payment of any tuition and fees not paid for by the Armed 
Forces.
    (2) The cost of special services, such as reader services, tutorial 
assistance,

[[Page 122]]

and special equipment during the period of such training.


(Authority: 38 U.S.C. 3681)

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]

                                 Claims



Sec. 21.30  Claims.

    A specific claim in the form prescribed by the Department of 
Veterans Affairs must be filed for:
    (a) A program of rehabilitation services, or
    (b) Employment assistance.

(Authority: 38 U.S.C. 501(a), 3102, 3117, 5101(a))



Sec. 21.31  Informal claim.

    Any communication or action indicating an intent to apply for 
rehabilitation or employment assistance, from a veteran, a duly 
authorized representative, or a Member of Congress may be considered an 
informal claim. Upon receipt of an informal claim, if a formal claim has 
not been filed, an application form will be forwarded to the veteran for 
execution. In the case of a claim for rehabilitation, or employment 
assistance, the formal claim will be considered filed as of the date of 
receipt of the informal claim if received within 1 year from the date it 
was sent to the veteran, or before cessation of the course, whichever is 
earlier.

(Authority: 38 U.S.C. 501(a), 5101(a), 5103(a))



Sec. 21.32  Time limit.

    (a) Time limit for filing evidence. The provisions of this paragraph 
are applicable to an original application, formal or informal, for 
rehabilitation or employment assistance and to a claim for increased 
benefits by reason of the existence of a dependent.
    (1) If a claimant's application is incomplete, the claimant will be 
notified of the evidence necessary to complete the application;
    (2) If the evidence is not received within 1 year from the date of 
such notification, benefits may not be paid by reason of that 
application.
    (b) Failure to furnish claim or notice of time limit. The failure of 
VA to furnish a claimant:
    (1) Any form or information concerning the right to file a claim or 
to furnish notice of the time limit for the filing of a claim is not a 
basis for adjusting the periods allowed for these actions;
    (2) Appropriate notice of time limits within which evidence must be 
submitted to perfect a claim shall result in an adjustment of the period 
during which the time limit runs. The period during which the time limit 
runs shall be determined in accordance with paragraph (c) of this 
section. As to appeals see Sec. 19.129 of this chapter.


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

    (c) Adjustment of time limit. (1) In computing the time limit for 
any action required of a claimant or beneficiary to perfect the types of 
claims described in paragraph (a) of this section, 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.
    (2) The period during which the veteran must provide information 
necessary to perfect his or her claim does not begin to run until the 
veteran has been notified of this requirement for submission of 
information. The date of the letter of notification informing the 
veteran of the action required and the time limit for accomplishing the 
action shall be ``The first day of the specified period'' referred to in 
paragraph (c)(1) of this section.


(Authority: 38 U.S.C. 5101, 5113)

    Cross-Reference: Due Process. See Sec. 3.103.

[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 12821, Apr. 6, 1990]

                               Definitions



Sec. 21.35  Definitions.

    (a) Employment handicap. This term means an impairment of a 
veteran's ability to prepare for, obtain, or retain

[[Page 123]]

employment consistent with such veteran's abilities, aptitudes, and 
interests.


(Authority: 38 U.S.C. 3101(1), 3102)

    (b) Independence in daily living. This term means the ability of a 
veteran, without the service of others, or with a reduced level of the 
services of others, to live and function within such veteran's family 
and community.


(Authority: 38 U.S.C. 3101(2))

    (c) Program of education. This term means:
    (1) A combination of subjects or unit courses pursued at a school 
which is generally acceptable to meet requirements for a predetermined 
educational, professional or vocational objective; or
    (2) Such subjects or courses which are generally acceptable to meet 
requirements for more than one objective if all objectives pursued are 
generally recognized as being related to a single career field; or
    (3) Any unit course or subject, or combination of courses or 
subjects, pursued by an eligible veteran at any educational institution 
required by the Administrator of the Small Business Administration as a 
condition to obtaining financial assistance under the provisions of 
section (7)(i)(1) of the Small Business Act.


(Authority: 15 U.S.C. 636(i)(1), 38 U.S.C. 3452(b))

    (d) Program of independent living services and assistance. This term 
includes:
    (1) The services provided in this program that are needed to enable 
a veteran to achieve maximum independence in daily living, including 
counseling, diagnostic, medical, social, psychological, and educational 
services determined by the Department of Veterans Affairs to be 
necessary, and
    (2) The monthly allowance authorized by 38 U.S.C. Chapter 31 for 
such a veteran.


(Authority: 38 U.S.C. 3101(4))

    (e) Rehabilitated to the point of employability. This term means 
that the veteran is employable in an occupation for which a vocational 
rehabilitation program has been provided under this program


(Authority: 38 U.S.C. 3101(5))

    (f) Rehabilitation program. This term includes, when appropriate:
    (1) A vocational rehabilitation program (see paragraph (i) of this 
section);
    (2) A program of independent living services and assistance (see 
paragraph (d) of this section) for a veteran for whom a vocational goal 
has been determined not to be currently reasonably feasible; or


(Authority: 38 U.S.C. 3101(6); Pub. L. 99-576)

    (3) A program of employment services for employable veterans who are 
prior participants in Department of Veterans Affairs or state-federal 
vocational rehabilitation programs.


(Authority: 38 U.S.C. 3117)

    (g) Serious employment handicap. This term means a significant 
impairment of a veteran's ability to prepare for, obtain, or retain 
employment consistent with such veteran's abilities, aptitudes, and 
interests.


(Authority: 38 U.S.C. 3101(7)

    (h) Vocational goal. (1) The term vocational goal means a gainful 
employment status consistent with a veteran's abilities, aptitudes, and 
interests;
    (2) The term achievement of a vocational goal is reasonably feasible 
means the effects of the veteran's disability (service and nonservice-
connected), when considered in relation to the veteran's circumstances 
does not prevent the veteran from successfully pursuing a vocational 
rehabilitation program and becoming gainfully employed in an occupation 
consistent with the veteran's abilities, aptitudes, and interests;
    (3) The term achievement of a vocational goal is not currently 
reasonably feasible means the effects of the veteran's disability 
(service and nonservice-connected), when considered in relation to the 
veteran's circumstances at the time of the determination:
    (i) Prevent the veteran from successfully achieving a vocational 
goal at that time; or

[[Page 124]]

    (ii) Are expected to worsen within the period needed to achieve a 
vocational goal and which would, therefore, make achievement not 
reasonably feasible.


(Authority: 38 U.S.C. 3101(8))

    (i) Vocational rehabilitation program. This term includes:
    (1) The services that are needed for the accomplishment of the 
purposes of 38 U.S.C. Chapter 31 including such counseling, diagnostic, 
medical, social, psychological, independent living, economic, 
educational, vocational, and employment services as are determined by 
the Department of Veterans Affairs to be needed;
    (i) In the case of a veteran for whom the achievement of a 
vocational goal has not been found to be currently infeasible, such 
services include:
    (A) Determining whether a vocational goal is reasonably feasible;
    (B) Improving the veteran's potential to participate in a program of 
services designed to achieve a vocational goal;
    (C) Enabling the veteran to achieve maximum independence in daily 
living;
    (ii) In the case of a veteran for whom achievement of a vocational 
goal is feasible, such services include assisting the veteran to become, 
to the maximum extent feasible, employable and to obtain and maintain 
suitable employment; and
    (2) The term also includes the monetary assistance authorized by 38 
U.S.C. Chapter 31 for a veteran receiving any of the services described 
in this paragraph.


(Authority: 38 U.S.C. 3101(9); Pub. L. 99-576)

    (j) Program of employment services. This term includes the 
counseling, medical, social, and other placement and post-placement 
services provided to a veteran under 38 U.S.C. Chapter 31 to assist the 
veteran in obtaining or maintaining suitable employment.


(Authority: 38 U.S.C. 3117)

    (k) Other terminology. The following are primarily intended as 
explanations rather than definitions of terms to which frequent 
reference will be made in these regulations.
    (1) Counseling psychologist. Unless otherwise stated, the term 
counseling psychologist refers to a counseling psychologist in the 
Vocational Rehabilitation and Employment Division in the Veterans 
Benefits Administration, Department of Veterans Affairs.


(Authority: 38 U.S.C. 3118(c))

    (2) Vocational rehabilitation specialist. Unless otherwise stated, 
the term vocational rehabilitation specialist refers to a vocational 
rehabilitation specialist in the Vocational Rehabilitation and 
Employment Division in the Veterans Benefits Administration of the 
Department of Veterans Affairs, or to a Department of Veterans Affairs 
counseling psychologist performing the duties of a vocational 
rehabilitation specialist.


(Authority: 38 U.S.C. 3118(c))

    (3) School, educational institution, institution. These terms means 
any public or private school, secondary school, vocational school, 
correspondence school, business school, junior college, teachers' 
college, college, normal school, professional school, university, or 
scientific or technical institution, or other institution furnishing 
education for adults.


(Authority: 38 U.S.C. 3452(c))

    (4) Training establishment. This term means any establishment 
providing apprentice or other training on the job, including those under 
the supervision of a college or university or any State department of 
education, or any State apprenticeship agency, or any State board of 
vocational education, or any joint apprenticeship committee, or the 
Bureau of Apprenticeship and Training established in accordance with 29 
U.S.C. Chapter 4C, or any agency of the Federal Government authorized to 
supervise such training.


(Authority: 38 U.S.C. 3452(e))

    (5) Rehabilitation facility. This term means a distinct 
organizational entity, either separate or within a larger insititution 
or agency, which provides goal-oriented comprehensive and coordinated 
services to individuals designed to evaluate and minimize the

[[Page 125]]

handicapping effects of physical, mental, social and vocational 
disadvantages, and to effect a realization of the individual's 
potential.


(Authority: 38 U.S.C. 3115(a))

    (6) Workshop. This term means a charitable organization or 
institution, conducted not for profit, but for the purpose of carrying 
out an organized program of evaluation and rehabilitation for 
handicapped workers and/or for providing such individuals with 
remunerative employment and other occupational rehabilitative activity 
of an educational or therapeutic nature.


(Authority: 38 U.S.C. 3115(a))

    (7) Vocational rehabilitation counselor. Unless otherwise stated, 
the term vocational rehabilitation counselor refers to a vocational 
rehabilitation counselor in the Vocational Rehabilitation and Employment 
Division in the Veterans Benefits Administration, Department of Veterans 
Affairs.


(Authority: 38 U.S.C. 3118(c))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 
FR 50956, Dec. 19, 1988; 62 FR 17707, Apr. 11, 1997]

                            Basic Entitlement



Sec. 21.40  Basic entitlement.

    A veteran or serviceperson shall be entitled to a program of 
rehabilitation services under 38 U.S.C. chapter 31 if all of the 
following conditions are met:
    (a) Service-connected disability. (1) The veteran has a service-
connected disability of 20 percent or more which is, or but for the 
receipt of retired pay would be, compensable under 38 U.S.C. chapter 11, 
and which was incurred or aggravated in service on or after September 
16, 1940; or
    (2) A serviceperson is hospitalized for a service-connected 
disability in a hospital over which the Secretary concerned has charge 
pending discharge or release from active military, naval or air service 
and is suffering from a disability which will likely be compensable at a 
rate of 20 percent or more under 38 U.S.C. Chapter 11; or
    (3) A veteran or serviceperson, as described in paragraphs (a)(1) 
and (2) of this section, has a service-connected disability which is 
compensable or is likely to be compensable at less than 20 percent, if 
the individual filed an original application for Chapter 31 before 
November 1, 1990.
    (b) Employment handicap. The veteran or serviceperson is determined 
to be in need of rehabilitation to overcome an employment handicap.

(Authority: 38 U.S.C. 3102, Pub. L. 101-508)

[56 FR 15836, Apr. 18, 1991]

                         Periods of Eligibility



Sec. 21.41  Basic period of eligibility.

    A veteran having basic entitlement may be provided a program of 
rehabilitative services during the twelve-year period following 
discharge. The beginning date of the twelve-year period is the day of 
the veteran's discharge or release from his or her last period of active 
military, naval, or air service and the ending date is twelve years from 
the discharge or release date, unless the beginning date is deferred or 
the ending date is deferred or extended as provided in Sec. Sec. 21.42, 
21.44, and 21.45.

(Authority: 38 U.S.C. 3103)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.42  Basic period of eligibility deferred.

    The basic twelve-year period of eligibility does not begin to run if 
the veteran was prevented from beginning or continuing a vocational 
rehabilitation program for one of the following reasons:
    (a) Qualifying compensable service-connected disability established. 
The basic twelve-year period shall not begin to run until the veteran 
establishes the existence of a compensable service-connected disability 
described in Sec. 21.40(a). When the veteran establishes the existence 
of a compensable service-connected disability described in Sec. 
21.40(a), the basic twelve-year period begins on the day the Department 
of Veterans Affairs notifies the veteran of this. The ending date is 
twelve years from the beginning date.


(Authority: 38 U.S.C. 3103(b)(3), Pub. L. 101-508)


[[Page 126]]


    (b) Character of discharge. (1) The basic twelve-year period of 
eligibility shall not begin to run during any period when the veteran 
had not met the requirement of a discharge or release from the active 
military, naval or air services under conditions other than dishonorable 
before:
    (i) The discharge or release was changed by appropriate authority, 
or
    (ii) The Department of Veterans Affairs determines that the 
discharge or release was under conditions other than dishonorable.
    (2) The basic twelve-year period shall not begin to run during any 
period in which the veteran's discharge or dismissal was considered a 
bar to benefits by the Department of Veterans Affairs, before this bar 
is removed by the Department of Veterans Affairs.
    (3) When there is a change in the character of discharge or 
dismissal under paragraph (b) (1) or (2) of this section the beginning 
date of the basic twelve-year period of eligibility is the effective 
date of the change. Determination of character of discharge and change 
in the character of discharge shall be made under the provisions of 
Sec. 3.12. The ending date is twelve years from the beginning date.


(Authority: 38 U.S.C. 3103(b)(2))

    (c) Medical condition prevents initiation or continuation. (1) The 
basic 12-year period of eligibility shall not begin to run or continue 
to run during any period of 30 days or more in which the veteran's 
participation in vocational rehabilitation is infeasible because of the 
veteran's medical condition, which condition may include the disabling 
effects of chronic alcoholism, subject to paragraph (c)(5) of this 
section. The 12-year period shall begin or resume when it is feasible 
for the veteran to participate in a vocational rehabilitation program, 
as that term is defined in Sec. 21.35.
    (2) The term disabling effects of chronic alcoholism means alcohol-
induced physical or mental disorders or both, such as habitual 
intoxication, withdrawal, delirium, amnesia, dementia, and other like 
manifestations of chronic alcoholism which, in the particular case:
    (i) Have been medically diagnosed as manifestations of alcohol 
dependency or chronic alcohol abuse; and
    (ii) Are determined to have prevented commencement or completion of 
the affected individual's rehabilitation program.
    (3) A diagnosis of alcoholism, chronic alcoholism, alcohol 
dependency, chronic alcohol abuse, etc., in and of itself, does not 
satisfy the definition of disabling effects of chronic alcoholism.
    (4) Injury sustained by a veteran as a proximate and immediate 
result of activity undertaken by the veteran while physically or 
mentally unqualified to do so due to alcoholic intoxication is not 
considered a disabling effect of chronic alcoholism.
    (5) The disabling effects of chronic alcoholism, which prevent 
initiation or continuation of participation in a vocational 
rehabilitation program after November 17, 1988, shall not be considered 
to be the result of willful misconduct.


(Authority: 38 U.S.C. 3103(b)(1), Pub. L. 100-689)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 55 
FR 40171, Oct. 2, 1990; 56 FR 15836, Apr. 18, 1991]



Sec. 21.44  Extension beyond basic period of eligibility because of 
serious employment handicap.

    The basic period of eligibility of a veteran with a serious 
employment handicap may be extended when the veteran's employment and 
particular handicap necessitate an extension as necessary to pursue a 
vocational rehabilitation program under the following conditions:
    (a) Not rehabilitated to the point of employability. The basic 
period of eligibility may be extended when the veteran has not 
previously been rehabilitated to the point of employability.


(Authority: 38 U.S.C. 3103(c))

    (b) Rehabilitated to the point of employability. The veteran was 
previously declared rehabilitated to the point of employability, under 
the Department of Veterans Affairs vocational rehabilitation program, 
but either:
    (1) The veteran's service-connected disability or disabilities have 
worsened to the extent that he or she is unable

[[Page 127]]

to perform the duties of the occupation in which he or she is trained, 
or in a related occupation; or
    (2) The occupation in which the veteran was rehabilitated to the 
point of employability is not presently suitable in view of the 
veteran's current employment handicap and capabilities. (The finding of 
unsuitability must be based upon objective evidence developed in the 
course of reconsideration which shows that the nature or extent of the 
veteran's employment handicap and his or her capabilities are 
significantly different than were previously found.) or;
    (3) Occupational requirements have changed and additional services 
are needed to help the veteran continue in the occupation in which he or 
she was trained or in a related field.


(Authority: 38 U.S.C. 3103(c))



Sec. 21.45  Extension beyond basic period of eligibility for a program 
of independent living services.

    The period of eligibility for a veteran to pursue a program of 
independent living services may be extended beyond the basic twelve-year 
period under the following conditions:
    (a) The veteran's medical condition (service and nonservice-
connected disabilities) is so severe that achievement of a vocational 
goal is not currently reasonably feasible, or (b) the extension is 
necessary to ensure that he or she will achieve maximum independence in 
daily living.

(Authority: 38 U.S.C. 3103(d); Pub. L. (99-576)

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988]



Sec. 21.47  Eligibility for employment assistance.

    (a) Providing employment services to veterans eligible for a 
rehabilitation program under chapter 31. Each veteran, other than one 
found in need of a program of independent living services and 
assistance, who is otherwise currently eligible for and entitled to 
participate in a program of rehabilitation under chapter 31 may receive 
employment services. Included are those veterans who:
    (1) Have completed a program of rehabilitation services under 
chapter 31 and been declared rehabilitated to the point of 
employability;
    (2) Have not completed a period of rehabilitation to the point of 
employability under chapter 31, but:
    (i) Have elected to secure employment without completing the period 
of rehabilitation to the point of employability; and
    (ii) Are employable; or
    (3) Have never received services for rehabilitation to the point of 
employability under chapter 31 if they:
    (i) Are employable or employed in a suitable occupation;
    (ii) Have an employment handicap or a serious employment handicap; 
and
    (iii) Need employment services to secure and/or maintain suitable 
employment.


(Authority: 38 U.S.C. 3102)

    (b) Veteran previously participated in a VA vocational 
rehabilitation program or a similar program under the Rehabilitation Act 
of 1973, as amended. A veteran who at some time in the past has 
participated in a vocational rehabilitation program under chapter 31 or 
a similar program under the Rehabilitation Act of 1973 as amended, and 
is employable is eligible for employment services under the following 
conditions even though he or she is ineligible for any other assistance 
under chapter 31:
    (1) The veteran is employable in a suitable occupation;
    (2) The veteran has filed a claim for vocational rehabilitation or 
employment assistance;
    (3) The veteran meets the criteria for eligibility described in 
Sec. 21.40(a); and
    (4) The veteran has an employment handicap or serious employment 
handicap; and
    (5) The veteran:
    (i) Completed a vocational rehabilitation program under 38 U.S.C. 
ch. 31 or participated in such a program for at least 90 days on or 
after September 16, 1940; or
    (ii) Completed a vocational rehabilitation program under the 
Rehabilitation Act of 1973 after September 26, 1975, or participated in 
such a program

[[Page 128]]

which included at least 90 days of postsecondary education or vocational 
training.


(Authority: 38 U.S.C. 3117)

    (c) Veteran never received vocational rehabilitation services from 
the Department of Veterans Affairs or under the Rehabilitation Act of 
1973. If a veteran is currently ineligible under chapter 31 because he 
or she does not have an employment handicap, and has never before 
participated in a vocational rehabilitation program under chapter 31 or 
under the Rehabilitation Act of 1973, no employment assistance may now 
be provided to the veteran under chapter 31.


(Authority: 38 U.S.C. 3117)

    (d) Duration of period of employment assistance. The periods during 
which employment assistance may be provided are not subject to 
limitations on periods of eligibility for vocational rehabilitation 
provided in Sec. Sec. 21.41 through 21.45 of this part, but entitlement 
to such assistance is, as provided in Sec. 21.73 of this part, limited 
to 18 total months of assistance.


(Authority: 38 U.S.C. 3105)

[54 FR 21215, May 17, 1989, as amended at 56 FR 15836, Apr. 18, 1991]



Sec. 21.48  Severance of service-connection--reduction to noncompensable 
degree.

    When a rating action is taken which proposes severance of service-
connection or reduction to a noncompensable degree, the provisions of 
the following paragraphs will govern the veteran's entitlement to 
rehabilitation and employment assistance under 38 U.S.C. Chapter 31.
    (a) Applicant. If the veteran is an applicant for rehabilitation or 
employment assistance when the proposed rating action is taken, all 
processes respecting determination of entitlement or induction into 
training shall be immediately suspended. In no event shall any veteran 
be inducted into a rehabilitation program or provided employment 
assistance during the interim periods provided in Sec. 3.105 (d) and 
(e) of this title. If the proposed rating action becomes final, the 
application will be denied. See also Sec. 21.50 as to initial 
evaluation.


(Authority: 38 U.S.C. 3104)

    (b) Reduction while in a rehabilitation program. If the proposed 
rating action is taken while the veteran is in a rehabilitation program 
and results in a reduction to a noncompensable rating of his or her 
disability, the veteran may be retained in the program until the 
completion of the program, except if ``discontinued'' under Sec. 21.198 
he or she may not reenter.


(Authority: 38 U.S.C. 3103)

    (c) Severance while in a rehabilitation program. If the proposed 
rating action is taken while the veteran is in a rehabilitation program 
and results in severance of the service-connection of his or her 
disability, rehabilitation will be terminated effective as of the last 
day of the month in which severance of service-connection becomes final.


(Authority: 38 U.S.C. 3103)

                     Initial and Extended Evaluation



Sec. 21.50  Initial evaluation.

    (a) Eligibility for initial evaluation. VA shall provide an initial 
evaluation to each individual who applies for benefits under chapter 31 
if the individual's compensable service-connected disability meets one 
of the conditions contained in Sec. 21.40(a).


(Authority: 38 U.S.C. 3102(1), Pub. L. 101-508)

    (b) Purpose. An initial evaluation will be provided to each 
individual who meets the conditions of paragraph (a) of this section to:
    (1) Determine the existence of an employment handicap;
    (2) Determine the basic twelve-year period of eligibility;
    (3) Determine whether an employment handicap shall be considered a 
serious employment handicap;
    (4) Determine whether the basic twelve-year period of eligibility is 
extended for a veteran with a serious employment handicap;
    (5) Determine as expeditiously as possible, without extended 
evaluation,

[[Page 129]]

whether achievement of a vocational goal is currently reasonably 
feasible.
    (6) Evaluate the ability of the veteran to live and function 
independently within the veteran's family and community;
    (7) Determine if the veteran is eligible for employment services 
under Sec. 21.47;
    (8) Develop information necessary to plan an individual program for 
a veteran found eligible and entitled to services under Chapter 31; and
    (9) Assist a veteran who is found ineligible for assistance under 
Chapter 31 to identify other resources and programs for which he or she 
may be eligible.


(Authority: 38 U.S.C. 523, 3106(a), (d), 3116)

    (c) Scope of initial evaluation. The initial evaluation shall 
include consideration of:
    (1) The handicapping effects of the veteran's service-connected 
disability on employability and independence in daily living;
    (2) The veteran's residual physical and mental capabilities which 
contribute to employability and independence in daily living;
    (3) The veteran's ability to function independently in family and 
community;
    (4) Prior assessments of employability by a counseling psychologist;
    (5) Assessments authorized to provide additional information 
necessary for initial evaluation; and
    (6) The veteran's personal history including:
    (i) Education and training;
    (ii) Employment;
    (iii) Nonservice-connected dis- ability(ies), and
    (iv) Family and community adjustment.


(Authority: 38 U.S.C. 3106(a))

    (d) Responsibility for initial evaluation. (1) All determinations 
regarding service requirements for basic entitlement and, the beginning 
and ending dates of a veteran's basic twelve-year period of eligibility 
shall be made by appropriate staff of the Adjudication Division.
    (2) All other determinations, including extension of the basic 
twelve-year period because of serious employment handicap, and 
entitlement to assistance under Chapter 31 shall be made by appropriate 
staff of the Vocational Rehabilitation and Employment Division.


(Authority: 38 U.S.C. 3102, 3103, 3115(a))

    (e) Cooperation of the veteran. The cooperation of the veteran is 
essential to an initial evaluation. The purpose of the initial 
evaluation and the steps in the process shall be explained to the 
veteran and his or her cooperation requested. If the veteran does not 
cooperate in the initiation or completion of the initial evaluation the 
counseling psychologist shall make a reasonable effort through 
counseling to secure the veteran's cooperation. If the veteran's 
cooperation cannot be secured, the counseling psychologist shall suspend 
the initial evaluation until such time as the veteran cooperates. The 
veteran will be informed of any suspension of the initial evaluation, 
the reasons for this action, and the steps necessary to resume the 
evaluation.


(Authority: 38 U.S.C. 3111)

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 
56 FR 15836, Apr. 18, 1991]



Sec. 21.51  Employment handicap.

    (a) Importance of decision. The proper determination of employment 
handicap is a critical decision for rehabilitation planning and program 
accountability. To the extent possible, necessary information shall be 
developed in the course of initial evaluation and the significance of 
the information under paragraphs (d) and (e) of this section for 
determining employment handicap shown in each case.


(Authority: 38 U.S.C. 3101(1), 3102)

    (b) Definition. The term employment handicap means an impairment of 
the veteran's ability to prepare for, obtain, or retain employment 
consistent with the veteran's abilities, aptitudes, and interests.


(Authority: 38 U.S.C. 3101(1))

    (c) Components of employment handicap. Components of employment 
handicap include:

[[Page 130]]

    (1) Impairment. This term means the restrictions on employability 
caused by:
    (i) The veteran's service and nonservice-connected disabilities;
    (ii) Deficiencies in education and training;
    (iii) Negative attitudes toward the disabled; and
    (iv) Other pertinent factors.
    (2) Service-connected disability. The veteran's service-connected 
disability need not be the sole or primary cause of the employment 
handicap but it must materially contribute to the impairment described 
in paragraph (c)(1) of this section. Therefore its effects must be 
identifiable, measurable, or observable.
    (3) Nonservice-connected disability. This term includes all physical 
and mental disabilities which have not been found to be service-
connected by the Department of Veterans Affairs, including alcoholism 
and drug abuse. The effects of alcoholism and drug abuse are to be 
considered in the same manner as other nonservice-connected disabilities 
in evaluating restrictions on employability. When the manifestations of 
alcoholism, drug abuse or other nonservice-connected disabilities raise 
questions as to the reasonable feasibility of a vocational goal for a 
veteran otherwise entitled to assistance under Chapter 31 such questions 
will be resolved under provisions of Sec. 21.53.
    (4) Consistency with abilities, aptitudes, and interests. The 
following points should be considered to determine if the veteran's 
training and employment are consistent with his or her abilities, 
aptitudes and interests:
    (i) A finding that a veteran is employed in an occupation which is 
consistent with his or her abilities, aptitudes and interests may not be 
made if the occupation does not require reasonably developed skills, 
except under conditions described in paragraphs (e) (2) and (3), of this 
section;
    (ii) The veteran's residual capacities, as well as limitations 
arising from the veteran's service and nonservice-connected disabilities 
are relevant;
    (iii) Evidence of the consistency of interests with training and 
employment may be based on:
    (A) The veteran's statements to a Department of Veterans Affairs 
counseling psychologist during initial evaluation or subsequent 
reevaluation;
    (B) The veteran's history of participation in specific activities; 
or
    (C) Information developed by the Department of Veterans Affairs 
through use of interest inventories.


(Authority: 38 U.S.C. 3102)

    (d) Determining extent of impairment. The extent of the veterans 
impairment shall be assessed through consideration of factors described 
in paragraph (c)(1) of this section:
    (e) Material contribution of service-connected disability to the 
impairment. A finding that the veteran's service-connected disability 
materially contributes to his or her impairment to employment will be 
made by assessing the following factors:
    (1) Preparation for employment. The service-connected condition 
adversely affects the veteran's current ability to prepare for 
employment in one or more fields which would otherwise be consistent 
with the veteran's abilities, aptitudes, and interests. An adverse 
effect is demonstrated when the physical or psychological results of the 
service-connected condition:
    (i) Impair the veteran's ability to train;
    (ii) Prevent or impede access to training facilities; or
    (iii) Diminish the veteran's motivation and ability to mobilize his 
or her energies for education or training.
    (2) Obtaining employment. The service-connected condition places the 
veteran at a competitive disadvantage with similarly circumstanced 
nondisabled persons in obtaining employment. A veteran without 
reasonably developed specific job skills shall be considered to be at a 
competitive disadvantage unless evidence of record shows a history of 
current, stable, continuing employment.
    (3) Retaining employment. The physical or psychological effects of a 
service-connected condition adversely affect the veteran's ability to 
maintain employment which requires reasonably developed skills. This 
criterion is not

[[Page 131]]

met if a veteran though lacking reasonably developed skills, has a 
history of continuing, stable employment.


(Authority: 38 U.S.C. 3101(1))

    (f) Determination of employment handicap. The counseling 
psychologist may find the veteran has an employment handicap.
    (1) An employment handicap which entitles the veteran to assistance 
under this program exists when all of the following conditions are met:
    (i) The veteran has an impairment of employability; this includes 
veterans who are qualified for suitable employment, but do not obtain or 
retain such employment for reasons not within their control;
    (ii) The veteran's service-connected disability materially 
contributes to the impairment of employability;
    (iii) The veteran has not overcome the effects of the impairment of 
employability through employment in an occupation consistent with his or 
her pattern of abilities, aptitudes and interests.
    (2) An employment handicap does not exist when any of the following 
conditions is present:
    (i) The veteran's employability is not impaired; this includes 
veterans who are qualified for suitable employment, but do not obtain or 
retain such employment for reasons within their control;
    (ii) The veteran's employability is impaired, but his or her 
service-connected disability does not materially contribute to the 
impairment of employability.
    (iii) The veteran has overcome the effects of the impairment of 
employability through employment in an occupation consistent with his or 
her pattern of abilities, aptitudes and interests, and is successfully 
maintaining such employment.


(Authority: 38 U.S.C. 3102)

    (g) Eligibility for employment assistance. If a veteran is not found 
to have an employment handicap a separate determination of his or her 
eligibility for employment assistance will be made under provisions of 
Sec. 21.47.


(Authority: 38 U.S.C. 3117)

    (h) Responsibility for determinations. The determination of an 
employment handicap and eligibility for employment assistance may only 
be made by a counseling psychologist in the Vocational Rehabilitation 
and Employment Division.


(Authority: 38 U.S.C. 3106(a))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 54 
FR 21216, May 17, 1989]



Sec. 21.52  Serious employment handicap.

    (a) Requirement of determination of serious employment handicap. A 
separate determination whether a serious employment handicap exists 
shall be made in each case in which an employment handicap is found.


(Authority: 38 U.S.C. 3106(a))

    (b) Definition. The term serious employment handicap means a 
significant impairment of a veteran's ability to prepare for, obtain or 
retain employment consistent with such veteran's abilities, aptitudes, 
and interests.


(Authority: 38 U.S.C. 3101(7))

    (c) Serious employment handicap exists. A veteran who has been found 
to have an employment handicap shall also be held to have serious 
employment handicap if he or she has:
    (1) A neuropsychiatric service-connected disability rated at thirty 
percent or more disabling; or
    (2) Any other service-connected disability rated at fifty percent or 
more disabling.
    (d) Serious employment handicap may exist. A veteran with a 
nonneuropsychiatric service-connected disability may be found to have a 
serious employment handicap even though the disability is rated at 
thirty or forty percent disabling, when either of the following 
conditions exists:
    (1) The veteran has a prior history of poor adjustment in training 
and employment, and special efforts will be needed if the veteran is to 
be rehabilitated; or
    (2) The veteran's situation presents special problems due to 
nonservice-connected disability, family pressures,

[[Page 132]]

etc., and a number of special and supportive services are needed to 
effect rehabilitation.
    (e) Serious employment handicap normally not found. A finding of 
serious employment handicap will normally not be made when a veteran's 
service-connected disability is rated at less than thirty percent 
disabling. A finding of serious employment handicap may nevertheless be 
made when:
    (1) The veteran's service-connected disability has caused 
substantial periods of unemployment or unstable work history;
    (2) The veteran has demonstrated a pattern of maladaptive behavior 
which is shown by a history of withdrawal from society or continuing 
dependency on government income support programs; and
    (f) Responsibility for determining serious employment handicap. A 
counseling psychologist in the Vocational Rehabilitation and Employment 
Division shall make determinations of serious employment handicap.


(Authority: 38 U.S.C. 3106(a))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8, 1989]



Sec. 21.53  Reasonable feasibility of achieving a vocational goal.

    (a) Requirement. The Department of Veterans Affairs shall determine 
the reasonable feasibility of achieving a vocational goal in each case 
in which a veteran has either:
    (1) An employment handicap, or
    (2) A serious employment handicap.


(Authority: 38 U.S.C. 3106(a))

    (b) Definition. The term vocational goal means a gainful employment 
status consistent with the veteran's abilities, aptitudes, and 
interests.


(Authority: 38 U.S.C. 3101(8))

    (c) Expeditious determination. The determination of reasonable 
feasibility shall be made as expeditiously as possible when necessary 
information has been developed in the course of initial evaluation. If 
an extended evaluation is necessary as provided in Sec. 21.57 a 
decision of feasibility shall be made by the end of the extended 
evaluation. Any reasonable doubt shall be resolved in favor of a finding 
of feasibility.


(Authority: 38 U.S.C. 3105(d))

    (d) Vocational goal is reasonably feasible. Achievement of a 
vocational goal is reasonably feasible for a veteran with either an 
employment or serious employment handicap when the following conditions 
are met:
    (1) Vocational goal(s) has (have) been identified;
    (2) The veteran's physical and mental conditions permit training for 
the goal(s) to begin within a reasonable period; and
    (3) The veteran:
    (i) Possesses the necessary educational skills and background to 
pursue the vocational goal; or
    (ii) Will be provided services by the Department of Veterans Affairs 
to develop such necessary educational skills as part of the program.


(Authority: 38 U.S.C. 3104(a)(1), 3106(a))

    (e) Criteria for reasonable feasibility not met. (1) When VA finds 
that the provisions of paragraph (d) of this section are not met, but VA 
has not determined that achievement of a vocational goal is not 
currently reasonably feasible, VA shall provide the rehabilitation 
services contained in Sec. 21.35(i)(1)(i) of this part as appropriate;
    (2) A finding that achievement of a vocational goal is infeasible 
without a period of extended evaluation requires compelling evidence 
which establishes infeasibility beyond any reasonable doubt.


(Authority: 38 U.S.C. 3104(a)(1), 3106(b))

    (f) Independent living services. The counseling psychologist shall 
determine the current reasonable feasibility of a program of independent 
living services in each case in which a vocational rehabilitation 
program is not found reasonably feasible. The concurrence of the 
Vocational Rehabilitation and Employment (VR&C) Officer is required in 
any case in which the counseling psychologist does not approve a program 
of independent living services.


(Authority: 38 U.S.C. 3100)


[[Page 133]]


    (g) Responsible staff. A counseling psychologist in the Vocational 
Rehabilitation and Employment Division shall determine whether 
achievement of a vocational goal is:
    (1) Reasonably feasible; or
    (2) Not currently reasonably feasible under the provisions of 
paragraph (e) of this section for the purpose of determining present 
eligibility to receive a program of independent living services.


(Authority: 38 U.S.C. 3106(b), Pub. L. 99-576)

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 
54 FR 37332, Sept. 8, 1989]



Sec. 21.57  Extended evaluation.

    (a) Purpose. The purpose of an extended evaluation for a veteran 
with a serious employment handicap is to determine the current 
feasibility of the veteran achieving a vocational goal, when this 
decision reasonably cannot be made on the basis of information developed 
during the initial evaluation.


(Authority: 38 U.S.C. 3106(c), Pub. L. 99-576)

    (b) Scope of services. During the extended evaluation, a veteran may 
be provided:
    (1) Diagnostic and evaluative services;
    (2) Services to improve his or her ability to attain a vocational 
goal;
    (3) Services to improve his or her ability to live and function 
independently in the community;
    (4) An allowance as provided in Sec. 21.260.


(Authority: 38 U.S.C. 3104)

    (c) Determination. (1) The determination of the reasonable 
feasibility of a veteran achieving a vocational goal will be made at the 
earliest time possible during an extended evaluation, but not later than 
the end of the period of evaluation, or an extension of that period. Any 
reasonable doubt as to feasibility will be resolved in the veteran's 
favor;


(Authority: 38 U.S.C. 3106(d))

    (2) When it is reasonably feasible for the veteran to achieve a 
vocational goal, an individualized written rehabilitation plan (IWRP) 
will be developed as indicated in Sec. 21.84 of this part.


(Authority: 38 U.S.C. 3106(b))

    (d) Responsibility for determining the need for a period of extended 
evaluation. A counseling psychologist in the Vocational Rehabilitation 
and Employment Division shall determine whether a period of extended 
evaluation is needed.


(Authority: 38 U.S.C. 3106(c))

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19, 1988; 
54 FR 37332, Sept. 8, 1989; 62 FR 17707, Apr. 11, 1997]



Sec. 21.58  Redetermination of employment handicap and serious employment 
handicap.

    (a) Prior to induction into a program. A determination as to 
employment handicap, serious employment handicap, or eligibility for a 
program of employment services will not be changed except for:
    (1) Unmistakable error in fact or law; or
    (2) New and material evidence which justifies a change.
    (b) After induction into a program. (1) The Department of Veterans 
Affairs will not redetermine a finding of employment handicap, serious 
employment handicap, or eligibility for a program of employment services 
subsequent to the veteran's induction into a program because of a 
reduction in his or her disability rating, including a reduction to 0 
percent:
    (2) The Department of Veterans Affairs may consider whether a 
finding of employment handicap should be changed to serious employment 
handicap when there is an increase in the degree of service-connected 
disability, or other significant change in the veteran's situation;
    (3) A redetermination of employment handicap, serious employment 
handicap, or eligibility for a program of employment services will be 
made when there is a clear and unmistakable error of fact or law.


(Authority: 38 U.S.C. 3102, 3106)

    (c) Following rehabilitation or discontinuance. A veteran's 
eligibility and entitlement to assistance must be redetermined in any 
case in which:

[[Page 134]]

    (1) The veteran is determined to be rehabilitated to the point of 
employability under the provisions of Sec. 21.190;
    (2) The veteran is determined to meet the requirements for 
rehabilitation under the provisions of Sec. 21.196; or
    (3) The veteran's program is discontinued under the provisions of 
Sec. 21.198, except as described in Sec. 21.198(c)(3).


(Authority: 38 U.S.C. 3102, 3111)



Sec. 21.59  Review and appeal of decisions on eligibility and entitlement.

    A veteran may appeal decisions of the Vocational Rehabilitation and 
Employment staff on eligibility and entitlement to rehabilitation 
services to the Board of Veterans Appeals as provided in Sec. 19.2 of 
Title 38, CFR. However, the veteran or an accredited representative, on 
his or her behalf, may request administrative review by Central Office 
prior to filing an appeal to BVA. A case already on appeal to BVA may 
not be referred to Central Office for administrative review or advisory 
opinion.

(Authority: 38 U.S.C. 3107(c))

                     Vocational Rehabilitation Panel



Sec. 21.60  Vocational Rehabilitation Panel.

    (a) Establishment of the Panel. A Vocational Rehabilitation Panel 
will be established at each field facility by the facility head. The 
purpose of the Panel is to provide technical assistance in the planning 
of rehabilitation programs for seriously disabled veterans and 
dependents. This purpose will be most effectively carried out through 
use of the services of a wide range of professionals to bring the 
resources of the Department of Veterans Affairs and the community to 
bear on problems presented in the individual case.


(Authority: 38 U.S.C. 3104(a))

    (b) Composition of the Panel. The Panel will include, but not be 
limited to the following:
    (1) A counseling psychologist in the VR&C (Vocational Rehabilitation 
and Employment) Division as the chairperson;
    (2) A vocational rehabilitation specialist in VR&C;
    (3) A medical consultant from a Department of Veterans Affairs 
Medical Center;
    (4) A member of the Social Services staff from a Department of 
Veterans Affairs Medical Center; and
    (5) Other specialists from the Department of Veterans Affairs.


(Authority: 38 U.S.C. 3104(a), 3115(a))

    (c) Appointment to the Panel.
    (1) The VR&C (Vocational Rehabilitation and Employment) Officer may 
not serve as either chairperson or member of the Panel.
    (2) The VR&C Officer will arrange for the participation of 
nonmedical professional staff in the Panel's meetings.


(Authority: 38 U.S.C. 3115(a)(2))

    (d) Scope of Panel review. The Panel will review each case which has 
been referred to it in relation to:
    (1) Specific reason for the referral; and
    (2) Other problem areas which the Panel identifies in the course of 
its consideration of the case.
    (e) Referral. A case may be referred to the Panel by:
    (1) A counseling psychologist in VR&C;
    (2) A vocational rehabilitation specialist in VR&C; or
    (3) The VR&C officer.
    (f) Report. The Panel must prepare a report on its findings and 
recommendations in each case. The Panel's recommendations may include 
specific actions which are warranted on the basis of current 
information, or may identify additional information needed to provide a 
sounder basis for planning the veteran's program of rehabilitation.


(Authority: 38 U.S.C. 3104(a))



Sec. 21.62  Duties of the Vocational Rehabilitation Panel.

    (a) Consultation requested. The panel shall provide technical and 
consultative services when requested by professional staff of the 
Vocational Rehabilitation and Employment (VR&C) Division to:
    (1) Assist staff members in planning and carrying out a 
rehabilitation plan for seriously disabled veterans and their 
dependents; and

[[Page 135]]

    (2) Consider other cases of individuals eligible for, or being 
provided assistance under chapter 31 and other programs of education and 
training administered by the Department of Veterans Affairs.


(Authority: 38 U.S.C. 3104(a))

    (b) Independent living services. The Panel has a key responsibility 
to assure that seriously disabled service-connected veterans who need 
independent living services to increase their independence in daily 
living are provided necessary services. In carrying out this 
responsibility the Panel shall review all cases which come before it to 
assure that the proposed program of vocational rehabilitation or 
independent living services includes those services necessary to enable 
the veteran to achieve the goals of the program.


(Authority: 38 U.S.C. 3100)

    (c) Dependents. The specific duties of the Panel with respect to 
dependents are more fully described Sec. Sec. 21.3300, 21.3301, 
21.3304, 21.4105, and 21.4276 of this part.


(Authority: 38 U.S.C. 3536, 3540, 3541, 3542, 3543)

[54 FR 37332, Sept. 8, 1989]

                   Duration of Rehabilitation Programs



Sec. 21.70  Vocational rehabilitation.

    (a) General. The goal of a vocational rehabilitation program is to:
    (1) Evaluate and improve the veteran's ability to achieve a 
vocational goal;
    (2) Provide services needed to qualify for suitable employment;
    (3) Enable the veteran to achieve maximum independence in daily 
living;
    (4) Enable the veteran to become employed in a suitable occupation 
and to maintain suitable employment.
    (b) Vocational rehabilitation program. This term includes:
    (1) The services that are needed for the accomplishment of the 
purposes of Chapter 31, including such counseling, diagnostic, medical, 
social, psychological, independent living, economic, educational, 
vocational, and employment services as are determined by the Department 
of Veterans Affairs to be needed;
    (i) In the case of a veteran for whom the achievement of a 
vocational goal has not been found to be currently infeasible such 
needed services include:
    (A) Determining whether a vocational goal is reasonably feasible;
    (B) Improving the veteran's potential to participate in a program of 
services designed to achieve a vocational goal;
    (C) Enabling the veteran to achieve maximum independence in daily 
living;
    (ii) In the case of a veteran for whom achievement of a vocational 
goal is feasible, such needed services include assisting the veteran to 
become, to the maximum extent feasible, employable and to obtain and 
maintain suitable employment;
    (2) The term also includes the monetary assistance authorized by 
Chapter 31 for a veteran receiving any of the services described in this 
paragraph.


(Authority: 38 U.S.C. 3101(9); Pub. L. 99-576)

    (c) Duration of vocational rehabilitation. Decisions on the duration 
of periods for attaining the goals named in paragraph (a) of this 
section are made in the course of development and approval of the 
Individualized Written Rehabilitation Plan. However, the duration of a 
vocational rehabilitation program may not exceed 48 months (or its 
equivalent when pursued on a part-time basis), except as provided in 
Sec. 21.78.


(Authority: 38 U.S.C. 3695, 3105)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 
FR 50957, Dec. 19, 1988]



Sec. 21.72  Rehabilitation to the point of employability.

    (a) General. Rehabilitation to the point of employability may 
include the services needed to:
    (1) Evaluate and improve the veteran's ability to undertake 
training;
    (2) Train the veteran to the level generally recognized as necessary 
for entry into employment in a suitable occupational objective. Where a 
particular degree, diploma, or certificate is generally necessary for 
entry into the occupation, e.g., an MSW for social

[[Page 136]]

work, the veteran shall be trained to that level.


(Authority: 38 U.S.C. 3101(5), 3104)

    (b) When duration of training may exceed general requirements--(1) 
Employment handicap. If the amount of training necessary to qualify for 
employment in a particular occupation in a geographical area where a 
veteran lives or will seek employment exceeds the amount generally 
needed for employment in that occupation, the Department of Veterans 
Affairs will provide, or arrange for the necessary additional training.
    (2) Serious employment handicap. The Department of Veterans Affairs 
will assist a veteran with a serious employment handicap to train to a 
higher level than is usually required to qualify in a particular 
occupation, when one of the following conditions exist:
    (i) The veteran is preparing for a type of work in which he or she 
will be at a definite disadvantage in competing with nondisabled persons 
for jobs or business, and the additional training will help to offset 
the competitive disadvantage;
    (ii) The number of feasible occupations are restricted, and 
additional training will enhance the veteran's employability in one of 
those occupations;
    (iii) The number of employment opportunities within feasible 
occupations are restricted.


(Authority: 38 U.S.C. 3105(c))

    (c) Responsibility for estimating duration of training. (1) The 
counseling psychologist shall estimate the duration of training and the 
estimate shall be incorporated in the IWRP (Individualized Written 
Rehabilitation Plan). When the period of training is estimated to exceed 
48 months, the concurrence of the Vocational Rehabilitation and 
Employment Officer is required, prior to approving the IWRP, under 
conditions listed in Sec. 21.78.
    (2) The estimated duration of the period of training required to 
complete an original or amended IWRP may be extended when necessary. 
Authorization of an extension is the responsibility of the counseling 
psychologist, except as provided in paragraph (d) of this section. Any 
extension which will result in use of more than 48 months of entitlement 
must meet conditions described in Sec. 21.78.


(Authority: 38 U.S.C. 3695(b))

    (d) Extension of training by the vocational rehabilitation 
specialist. (1) The VRS (Vocational Rehabilitation Specialist) may 
authorize an extension of up to six months of the period of vocational 
rehabilitation training authorized by the IWRP when:
    (i) The veteran is in rehabilitation to the point of employability 
status under Sec. 21.190;
    (ii) The veteran has completed more than half of the prescribed 
training;
    (iii) The veteran is making satisfactory progress;
    (iv) The extension is necessary to complete training;
    (v) Training can be completed within six months; and
    (vi) The extension will not result in use of more than 48 months of 
entitlement under Chapter 31 alone or in combination with other programs 
identified in Sec. 21.4020.
    (2) If the conditions listed in paragraph (d)(1) of this section are 
not met, and an extension is needed to complete the program, the case 
will be referred to the counseling psychologist for a determination.


(Authority: 38 U.S.C. 3105(c))



Sec. 21.73  Duration of employment assistance programs.

    (a) Duration. Employment assistance may be provided to the veteran 
for the period necessary to enable the veteran to secure employment in a 
suitable occupation, and to adjust in the employment. This period shall 
not exceed 18 months. A veteran may be provided such assistance if he or 
she is eligible for employment assistance under the provisions of Sec. 
21.47 of this part.


(Authority: 38 U.S.C. 3105(b))

    (b) Employment assistance not charged against Chapter 31 
entitlement. The period of employment assistance provided in paragraph 
(a) of this section is

[[Page 137]]

not charged against the months of entitlement under Chapter 31 (see 
Sec. 21.70).


(Authority: 38 U.S.C. 3105(b))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 21216, May 17, 1989]



Sec. 21.74  Extended evaluation.

    (a) General. An extended evaluation may be authorized for the period 
necessary to determine whether the attainment of a vocational goal is 
currently reasonably feasible for the veteran. The services which may be 
provided during the period of extended evaluation are listed in Sec. 
21.57(b) of this part.


(Authority: 38 U.S.C. 3105(a), 3106(a))

    (b) Duration. An extended evaluation may not be for less than two 
weeks (full or part-time equivalent) nor for more than twelve months, 
unless a longer period is necessary to determine whether achievement of 
a vocational goal is reasonably feasible.


(Authority: 38 U.S.C. 3105(a))

    (c) Approval of the period of an extended evaluation. (1) The 
counseling psychologist may approve an initial period of up to 12 months 
for an extended evaluation.
    (2) An additional period of extended evaluation of up to 6 months 
may be approved by the counseling psychologist, if there is reasonable 
certainty that the feasibility of achieving a vocational goal can be 
determined during the additional period. The counseling psychologist 
will obtain the concurrence of the Vocational Rehabilitation and 
Employment (VR&C) Officer before approving the extension of a period of 
extended evaluation.
    (3) An extension beyond a total period of 18 months for additional 
periods of up to 6 months each may only be approved by the counseling 
psychologist if there is a substantial certainty that a determination of 
current feasibility may be made within this extended period. The 
concurrence of the VR&C Officer is also required for this extension.


(Authority: 38 U.S.C. 3105(a), 3106(b); Pub. L. 99-576)

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 
54 FR 37332, Sept. 8, 1989; 62 FR 17707, Apr. 11, 1997]



Sec. 21.76  Independent living.

    (a) General. A program of independent living services may be 
authorized to enable the veteran to:
    (1) Reach the goals of the program, and
    (2) Maintain the newly achieved level of independence in daily 
living.


(Authority: 38 U.S.C. 3101(4), 3104(b))

    (b) Period of independent living services. The duration of an 
independent living services program may not exceed 24 months unless the 
counseling psychologist finds that an additional period of up to 6 
months would enable the veteran to substantially increase his or her 
level of independence in daily living. The concurrence of the Vocational 
Counseling and Rehabilitation Officer in this finding is required.


(Authority: 38 U.S.C. 3105(d))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8, 1989]



Sec. 21.78  Approving more than 48 months of rehabilitation.

    (a) General. Neither the basic period of entitlement which may be 
authorized for a program of rehabilitation under Chapter 31 alone, nor a 
combination of entitlement of Chapter 31 and other programs listed in 
Sec. 21.4020 shall exceed 48 months except as indicated in paragraphs 
(b) and (c) of this section.


(Authority: 38 U.S.C. 3695)

    (b) Employment handicap. A rehabilitation program for a veteran with 
an employment handicap may only be extended beyond 48 months when:
    (1) The veteran previously completed training for a suitable 
occupation but the veteran's service-connected disability has worsened 
to the point that he or she is unable to perform the duties of the 
occupation for which training had been provided, and a period of

[[Page 138]]

training in the same or a different field is required. An extension 
beyond 48 months under Chapter 31 alone shall be authorized for this 
purpose.


(Authority: 38 U.S.C. 3105(c)(1)(A))

    (2) The occupation in which the veteran previously completed 
training is found to be unsuitable because of the veteran's abilities 
and employment handicap. An extension beyond 48 months under Chapter 31 
alone shall be approved for this purpose.


(Authority: 38 U.S.C. 3105(c)(1)(B))

    (3) The veteran previously used education benefit entitlement under 
other programs administered by VA, and the additional period of 
assistance to be provided under Chapter 31 which the veteran needs to 
become employable will result in more than 48 months being used under 
all VA education programs, under these conditions the number of months 
necessary to complete the program may be authorized under Chapter 31, 
provided that the length of the extension will not result in 
authorization of more than 48 months under Chapter 31 alone.


(Authority: 38 U.S.C. 3695)

    (4) A veteran in an approved Chapter 31 program has elected payment 
of benefits at the Chapter 30 educational assistance rate. The 48 month 
limitation may be exceeded only:
    (i) To the extent that the entitlement in excess of 48 months does 
not exceed the entitlement previously used by the veteran in a course at 
the secondary school level under Sec. 21.4235 before December 31, 1989, 
or
    (ii) If the veteran is in a course on a term, quarter, or semester 
basis which began before the 36 month limitation on Chapter 30 
entitlement was reached, and completion of the course will be possible 
by permitting the veteran to complete the training under Chapter 31.


(Authority: 38 U.S.C. 3013, 3695; Pub. L. 98-525)

    (5) The assistance to be provided in excess of 48 months consists 
only of a period of employment assistance (see Sec. 21.73).


(Authority: 38 U.S.C. 3105(b))

    (c) Serious employment handicap. The duration of a rehabilitation 
program for a veteran with a serious employment handicap may be extended 
beyond 48 months under Chapter 31 for the number of months necessary to 
complete a rehabilitation program under the following conditions:
    (1) To enable the veteran to complete a period of rehabilitation to 
the point of employability;
    (2) To provide an extended evaluation in cases in which the total 
period needed for an extended evaluation and for rehabilitation to the 
point of employability would exceed 48 months;
    (3) To provide a program of independent living services, including 
cases in which achievement of a vocational goal becomes feasible during 
or following a program of independent living services;
    (4) Following rehabilitation to the point of employability:
    (i) The veteran has been unable to secure employment in the 
occupation for which training has been provided despite intensive 
efforts on the part of the Department of Veterans Affairs and the 
veteran, and a period of retraining or additional training is needed;
    (ii) The skills which the veteran developed in training for an 
occupation in which he or she was employed are no longer adequate to 
maintain employment in that field and a period of retraining is needed;
    (iii) The veteran's service-connected disability has worsened to the 
point that he or she is unable to perform the duties of the occupation 
for which the veteran has been trained, and a period of training in the 
same or different field is required;
    (iv) The occupation in which the veteran previously completed 
training is found to be unsuitable due to the veteran's abilities and 
employment handicap.
    (5) The assistance to be provided in excess of 48 months consists, 
only of a

[[Page 139]]

period of employment assistance. (see Sec. 21.73).


(Authority: 38 U.S.C. 3105(c)(2))

    (d) Approval of extension beyond 48 months. All extensions of a 
rehabilitation program beyond 48 months of total entitlement under all 
Department of Veterans Affairs programs requires the approval of the 
counseling psychologist and concurrence of the Vocational Rehabilitation 
and Employment Officer. Concurrence of the VR&C officer is not required 
for an extension due to provision of employment assistance (see Sec. 
21.21).


(Authority: 38 U.S.C. 3105(b))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.79  Determining entitlement usage under Chapter 31.

    (a) General. The determination of entitlement usage for chapter 31 
participants is made under the provisions of this section except as 
provided in paragraph (f) of this section. Charges for entitlement usage 
shall be based upon the principle that a veteran who pursues a 
rehabilitation program for 1 day should be charged 1 day of entitlement. 
The determination of entitlement is based upon the rate at which the 
veteran pursues his or her rehabilitation program. The rate of pursuit 
is determined under the provisions of Sec. 21.310 of this part.


(Authority: 38 U.S.C. 3108(d))

    (b) No charge against chapter 31 entitlement. No charge will be made 
against chapter 31 entitlement under any of the following circumstances:
    (1) The veteran is receiving employment services under an 
Individualized Employment Assistance Plan (IEAP);
    (2) The veteran is receiving an employment adjustment allowance; or
    (3) The veteran is on leave from his or her program, but leave is 
not authorized by the Department of Veterans Affairs.


(Authority: 38 U.S.C. 3108(d), 3117)

    (c) Periods during which entitlement may be charged. Charges for 
usage of chapter 31 entitlement may only be made for program 
participants in one of the following case statuses:
    (1) Rehabilitation to the point of employability;
    (2) Extended evaluation; or
    (3) Independent living.


(Authority: 38 U.S.C. 3106, 3109)

    (d) Method of charging entitlement under chapter 31. The Department 
of Veterans Affairs will make a charge against entitlement:
    (1) On the basis of total elapsed time (1 day of entitlement for 
each day of pursuit) if the veteran is being provided a rehabilitation 
program on a full-time basis;
    (2) On the basis of a proportionate rate of elapsed time if the 
veteran is being provided a rehabilitation program on a three-quarter, 
one-half or less than one-half time basis. Entitlement is charged at a:
    (i) Three-quarter time rate if pursuit is three-quarters or more, 
but less than full-time;
    (ii) One-half time rate if pursuit is half-time or more, but less 
than three-quarter time;
    (iii) One-quarter time rate if pursuit is less than half-time. 
Measurement of pursuit on a one-quarter time basis is limited to 
veterans in independent living or extended evaluation programs.


(Authority: 38 U.S.C. 3108(d), 3680(g))

    (e) Computing entitlement. (1) The computation of entitlement is 
based upon the rate of program pursuit, as determined under Sec. 21.310 
of this part, over the elapsed time during which training and 
rehabilitation services were furnished;
    (2) The Department of Veterans Affairs will compute elapsed time 
from the commencing date of the rehabilitation program as determined 
under Sec. 21.322 of this part to the date of termination as determined 
under Sec. 21.324 of this part. This includes the period during which 
veterans not receiving subsistence allowance because of a statutory bar; 
e.g., certain incarcerated veterans or servicepersons in a military 
hospital, nevertheless, received other chapter 31 services and 
assistance. Elapsed time includes the total period from the commencing 
date until the

[[Page 140]]

termination date, except for any period of unauthorized leave;
    (3) If the veteran's rate of pursuit changes after the commencing 
date of the rehabilitation program, the Department of Veterans Affairs 
will:
    (i) Separate the period of rehabilitation program services into the 
actual periods of time during which the veteran's rate of pursuit was 
different; and
    (ii) Compute entitlement based on the rate of pursuit for each 
separate elapsed time period.


(Authority: 38 U.S.C. 3108(f))

    (f) Special situtations. (1) When a chapter 31 participant elects 
benefits of the kind provided under chapter 30 or chapter 34 as a part 
of his or her rehabilitation program under chapter 31, the veteran's 
entitlement usage will be determined by using the entitlement provisions 
of those programs. Entitlement charges shall be in accordance with Sec. 
21.7076 for chapter 30 and Sec. 21.1045 under chapter 34. The 
entitlement usage computed under these provisions is deducted from the 
veteran's chapter 31 entitlement. No entitlement charges are made 
against either chapter 30 or chapter 34.


(Authority: 38 U.S.C. 3108(f))

    (2) When a veteran is pursuing on-job training or work experience in 
a Federal agency on a nonpay or nominal pay basis, the amount of 
entitlement used is determined in the following manner:
    (i) Entitlement used in on-job training in a Federal agency on a 
nonpay or nominal pay basis is determined in the same manner as other 
training.
    (ii) Entitlement used in pursuing work experience will be computed 
in the same manner as for veterans in on-job training except that work 
experience may be pursued on a less than full-time basis. If the veteran 
is receiving work experience on a less than full-time basis, entitlement 
charges are based upon a proportionate amount of the workweek. For 
example, if the workweek is 40 hours, three-quarter time is at least 30 
hours, but less than 40 hours, and half-time is at least 20 hours but 
less than 30 hours.


(Authority: 38 U.S.C. 3108(c))

    (3) Entitlement is charged on a full-time basis for a veteran found 
to have a reduced work tolerance.


(Authority: 38 U.S.C. 3108(d), 3680(g))

    (g) Overpayment. The Department of Veterans Affairs will make a 
charge against entitlement for an overpayment of subsistence allowance 
under the conditions described in Sec. 21.1045(h) of this part.


(Authority: 38 U.S.C. 3680(g))

[54 FR 47770, Nov. 17, 1989]

               Individualized Written Rehabilitation Plan



Sec. 21.80  Requirement for a rehabilitation plan.

    (a) General. An IWRP (Individualized Written Rehabilitation Plan) 
will be developed for each veteran eligible for rehabilitation services 
under Chapter 31. The plan is intended to assist in:
    (1) Providing a structure which allows VR&C staff to translate the 
findings made in the course of the initial evaluation into specific 
rehabilitation goals and objectives;
    (2) Monitoring the veteran's progress in achieving the 
rehabilitation goals established in the plan;
    (3) Assuring the timeliness of assistance by Department of Veterans 
Affairs staff in providing services specified in the plan; and
    (4) Evaluating the effectiveness of the planning and delivery of 
rehabilitation services by VR&C staff.
    (b) When a plan is prepared. A plan will be prepared in each case in 
which a veteran will pursue:
    (1) A vocational rehabilitation program, as that term is defined in 
Sec. 21.35(i);
    (2) An extended evaluation program;
    (3) An independent living services program; or
    (4) An employment program.
    (c) Plan--a generic term. The term plan refers to the IWRP 
(Individualized Written Rehabilitation Plan) Sec. 21.84, IEEP 
(Individualized Extended Evaluation Plan) Sec. 21.86, IEAP 
(Individualized Employment Assistance Plan) Sec. 21.88,

[[Page 141]]

and IILP (Individualized Independent Living Plan) Sec. 21.90.


(Authority: 38 U.S.C. 3107(a))

    (d) Plan not required. A plan will not be prepared for a veteran who 
is not eligible for any assistance under Chapter 31. Department of 
Veterans Affairs staff, with the veteran's assistance and cooperation, 
will utilize information developed in the course of an initial 
evaluation to assist the veteran to develop alternatives for education 
and training, independence in daily living, or employment assistance. 
This assistance should help the veteran in achieving attainable 
vocational, independent living and employment goals utilizing benefits 
and services for which the veteran may be eligible under other 
Department of Veterans Affairs or non-Department of Veterans Affairs 
programs.


(Authority: 38 U.S.C. 523, 7722(c))



Sec. 21.82  Completing the plan under Chapter 31.

    (a) Serious employment handicap. Each plan for a veteran with a 
serious employment handicap shall provide for completion of the program 
provided by the plan under Chapter 31. The provisions of Sec. 21.70 and 
Sec. 21.78(c) are designed to enable a veteran with a serious 
employment handicap to pursue and complete a rehabilitation plan under 
Department of Veterans Affairs auspices. These provisions shall be used 
as necessary to accomplish the goals of the plan.


(Authority: 38 U.S.C. 3105(c), 3107)

    (b) Employment handicap. A plan for a veteran with an employment 
handicap that is not a serious employment handicap shall require that 
the program be completed within 48 months, if the veteran is not 
eligible for an extension as provided in Sec. 21.78. When the program 
provided by the plan cannot be completed under Chapter 31 because of 
limitations imposed by the veteran's termination date or months of 
remaining entitlement, realistic, comprehensive and detailed 
arrangements must be made which will enable the veteran to successfully 
complete training under other auspices. If an arrangement cannot be made 
which meets these requirements, the long-range vocational goal of the 
veteran must be reevaluated, and another vocational goal selected which 
can be completed using the veteran's remaining Chapter 31 resources.


(Authority: 38 U.S.C. 3107(a))

    (c) Employment assistance when training is not completed under 
Chapter 31. A plan for employment assistance may be implemented even 
though the veteran's training has not been or will not be completed 
under Chapter 31.


(Authority: 38 U.S.C. 3117(a))



Sec. 21.84  Individualized written rehabilitation plan.

    (a) Purpose. The purposes of the IWRP (Individualized Written 
Rehabilitation Plan) are to:
    (1) Identify goals and objectives to be achieved by the veteran 
during the period of rehabilitation services that will lead to the point 
of employability;
    (2) Plan for placement of the veteran in the occupational field for 
which training and other services will be provided; and
    (3) Specify the key services needed by the veteran to achieve the 
goals and objectives of the plan.


(Authority: 38 U.S.C. 3107)

    (b) Elements of the plan. A plan will include the following:
    (1) A statement of long-range rehabilitation goals. Each statement 
of long-range goals shall include at a minimum:
    (i) One vocational goal for a veteran with an employment handicap; 
or
    (ii) One vocational goal and, if applicable, one independent living 
goal for a veteran with a serious employment handicap.
    (2) Intermediate rehabilitation objectives; Intermediate objectives 
are statements of achievement expected of the veteran to attain the 
long-range goal. The development of appropriate intermediate objectives 
is the cornerstone of an effective plan. Intermediate objectives should 
have the following characteristics:
    (i) The activity specified relates to the achievement of the goal;

[[Page 142]]

    (ii) The activity specified is definable in terms of observable 
behavior (e.g., pursuing an A.A. degree);
    (iii) The activity has a projected completion date;
    (iv) The outcome desired upon completion is measurable (e.g., 
receiving an A.A. degree).
    (3) The specific services to be provided by the Department of 
Veterans Affairs as stated. Counseling shall be included in all plans 
for a veteran with a serious employment handicap.
    (4) The projected starting and completion dates of the planned 
services and the duration of each service;
    (5) Objective criteria and an evaluation procedure and schedule for 
determining whether the objectives and goals are being achieved as set 
forth; and
    (6) The name, location, and phone number of the VBA case manager.


(Authority: 38 U.S.C. 3107(a))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.86  Individualized extended evaluation plan.

    (a) Purpose. The purpose of an IEEP is to identify the services 
needed for the VA to determine the veteran's current ability to achieve 
a vocational goal when this cannot reasonably be determined during the 
initial evaluation.


(Authority: 38 U.S.C. 3106(a), 3107(a))

    (b) Elements of the plan. An IEEP shall include the same elements as 
an IWRP except that:
    (1) The long range goal shall be to determine achievement of a 
vocational goal is currently reasonably feasible;
    (2) The intermediate objectives relate to problems of questions 
which must be resolved for the VA to determine the current reasonable 
feasibility of achieving a vocational goal.


(Authority: 38 U.S.C. 3106(a), 3107(a))

[53 FR 50957, Dec. 19, 1988]



Sec. 21.88  Individualized employment assistance plan.

    (a) Purpose. The purpose of the IEAP (Individualized Employment 
Assistance Plan) is to assure that a comprehensive, thoughtful approach 
is taken, enabling eligible veterans to secure suitable employment.


(Authority: 38 U.S.C. 3107)

    (b) Requirement for a plan. An IEAP will be prepared:
    (1) As part of an IWRP; or
    (2) When the veteran is eligible for employment assistance under 
provisions of Sec. 21.47.


(Authority: 38 U.S.C. 3107(a))

    (c) Elements of the plan. The IEAP shall follow the same structure 
as the IWRP. Each IEAP will include full utilization of community 
resources to enable the veteran to:
    (1) Secure employment; and
    (2) Maintain employment.


(Authority: 38 U.S.C. 3117)

    (d) Preparation of the IEAP. Preparation of the IEAP will be 
completed:
    (1) No later than 60 days before the projected end of the period of 
rehabilitation services leading to the point of employability; or
    (2) Following initial evaluation when employment services constitute 
the whole of the veteran's program under provisions of Sec. 21.47.


(Authority: 38 U.S.C. 3107(a))



Sec. 21.90  Individualized independent living plan.

    (a) Purpose. The purpose of the IILP is to identify the steps 
through which a veteran, whose disabilities are so severe that a 
vocational goal is not currently reasonably feasible, can become more 
independent in daily living within the family and community.


(Authority: 38 U.S.C. 3109, 3120)

    (b) Elements of the plan. The IILP shall follow the same structure 
as the IWRP. The plan will include:
    (1) Services which may be provided under Chapter 31 to achieve 
independence in daily living;


(Authority: 38 U.S.C. 3104)


[[Page 143]]


    (2) Utilization of programs with a demonstrated capacity to provide 
independent living services for severely handicapped persons;


(Authority: 38 U.S.C. 3104(b), 3120(a))

    (3) Services provided under other Department of Veterans Affairs and 
non-Department of Veterans Affairs programs needed to achieve the goals 
of the plan;


(Authority: 38 U.S.C. 3107)

    (4) Arrangements for maintaining the improved level of independence 
following completion of the plan.


(Authority: 38 U.S.C. 3107(a))

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988]



Sec. 21.92  Preparation of the plan.

    (a) General. The plan will be jointly developed by Department of 
Veterans Affairs staff and the veteran.
    (b) Approval of the plan. The terms and conditions of the plan must 
be approved and agreed to by the counseling psychologist, the vocational 
rehabilitation specialist, and the veteran.
    (c) Implementation of the plan. The vocational rehabilitation 
specialist or counseling psychologist designated as case manager has the 
primary role in carrying out Department of Veterans Affairs 
responsibility for implementation of the plan.
    (d) Responsible staff. The counseling psychologist has the primary 
responsibility for the preparation of plans.

(Authority: 38 U.S.C. 3107(a))



Sec. 21.94  Changing the plan.

    (a) General. The veteran, the counseling psychologist or the 
vocational rehabilitation specialist may request a change in the plan at 
any time.


(Authority: 38 U.S.C. 3107(b))

    (b) Long-range goals. A change in the staement of a long-range goal 
may only be made following a reevaluation of the veteran's 
rehabilitation program by the counseling psychologist. A change may be 
made when:
    (1) Achievement of the current goal(s) is no longer reasonably 
feasible; or
    (2) The veteran's circumstances have changed or new information has 
been developed which makes rehabilitation more likely if a different 
long-range goal is established; and
    (3) The veteran fully participates and concurs in the change.


(Authority: 38 U.S.C. 3107(b))

    (c) Intermediate objectives or services. A change in intermediate 
objectives or services provided under the plan may be made by the case 
manager when such change is necessary to carry out the statement of 
long-range goals. The veteran must concur in the change.


(Authority: 38 U.S.C. 3107(b))

    (d) Minor changes. Minor changes in the plan (e.g., changing the 
date of a scheduled evaluation) by the case manager may be made without 
the participation and concurrence of the veteran.


(Authority: 38 U.S.C. 3107(b))

    (e) Changes in duration of the plan. Any change in the total 
duration of a veteran's rehabilitation plan is subject to provisions on 
duration of a rehabilitation program described in Sec. Sec. 21.70-
21.78.


(Authority: 38 U.S.C. 3107(b))



Sec. 21.96  Review of the plan.

    (a) General. The veteran's progress in reaching the goals of the 
plan will be reviewed and evaluated as scheduled in the plan by the case 
manager and the veteran.
    (b) Comprehensive review required. The case manager and the veteran 
will review all of the terms of the plan and the veteran's progress at 
least every twelve months. On the basis of such review the veteran and 
the case manager will agree whether the plan should be:
    (1) Retained in its current form;
    (2) Amended; or
    (3) Redeveloped.

(Authority: 38 U.S.C. 3107(b))

[[Page 144]]



Sec. 21.98  Appeal of disagreement regarding development of, or change in, 
the plan.

    (a) General. The veteran may request a review of a proposed, 
original, or amended plan when Department of Veterans Affairs staff and 
the veteran do not reach agreement on the terms and conditions of the 
plan. A veteran who requests a review of the plan must submit a written 
statement to the case manager which:
    (1) Requests a review of the proposed, original, or amended plan; 
and
    (2) Details his or her objections to the terms and conditions of the 
proposed, original, or amended plan.
    (b) Review by Vocational Rehabilitation and Employment Officer. Upon 
receipt of the veteran's request for review of the plan, the counseling 
psychologist or the case manager will forward the request together with 
relevant comment to the VR&C Officer who will:
    (1) Review relevant information; and
    (2) Inform the veteran of his or her decision within 90 days.
    (c) Review by Director, Vocational Rehabilitation and Employment 
Service. The veteran's request shall be reviewed by the Director, VR&C 
in any case in which the VR&C Officer is the case manager. The veteran 
will be informed of the decision within 90 days.
    (d) Appeal to the Board of Veterans Appeals. The veteran may appeal 
an adverse decision of the VR&C Officer, or the Director, VR&C to the 
Board of Veterans Appeals.

(Authority: 38 U.S.C. 3107(c))

[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]

                               Counseling



Sec. 21.100  Counseling.

    (a) General. A veteran requesting or being furnished assistance 
under Chapter 31 shall be provided professional counseling services by 
Vocational Rehabilitation and Employment (VR&C) Service and other staff 
as necessary to:
    (1) Carry out an initial evaluation in each case in which assistance 
is requested;
    (2) Develop a rehabilitation plan or plan for employment services in 
each case in which the veteran is found during the initial evaluation to 
be eligible and entitled to services;
    (3) Assist veterans found ineligible for services under Chapter 31 
to the extent provided in Sec. 21.82; and
    (4) Try to overcome problems which arise during the course of the 
veteran's rehabilitation program or program of employment services.


(Authority: 38 U.S.C. 3101)

    (b) Types of counseling services. VA will furnish comprehensive 
counseling services, including but not limited to
    (1) Psychological;
    (2) Vocational;
    (3) Personal adjustment;
    (4) Employment;
    (5) Educational.


(Authority: 38 U.S.C. 3104(a)(2))

    (c) Qualifications. Counseling services may only be furnished by VA 
or other personnel who meet requirements established under provisions of 
Sec. 21.380 and other policies of the VA pertaining to the 
qualifications of staff providing assistance under Chapter 31.


(Authority: 38 U.S.C. 3118)

    (d) Limitations. (1) If a veteran resides within a State, counseling 
services necessary to carry out the initial evaluation and the 
development of a rehabilitation plan or a program of employment services 
will be furnished by counseling psychologists in the Vocational 
Rehabilitation and Employment (VR&C) Division;
    (2) If a veteran does not reside in a State the counseling services 
necessary to carry out an initial evaluation may be accomplished in the 
same manner as for a veteran residing in a State or through other 
arrangements when deemed appropriate by the VR&C Division. These 
alternative arrangements include, but are not limited to:
    (i) Use of counseling centers or individual qualified professionals 
under contract to VA; and
    (ii) Professional staff of other Federal agencies located in the 
area in which the veteran resides.
    (3) Alternative arrangements to provide counseling are subject to 
the following requirements:

[[Page 145]]

    (i) All arrangements must be consistent with the provisions of 
paragraph (c) of this section regarding utilization of professionally 
qualified persons to provide counseling services during the initial 
evaluation;
    (ii) All determinations of eligibility, entitlement and the 
development of a rehabilitation plan will continue to be made by 
counseling psychologists in the VR&C Division.
    (4) If a counseling psychologist in the VR&C Division determines 
that the evidence of record is insufficient to carry out an initial 
evaluation in a case in which alternative arrangements were used, VA 
staff may authorize the veteran to travel to a VA facility to complete 
the evaluation.


(Authority: 38 U.S.C. 3118(c))

    (e) Definition. For the purposes of this section, the term State 
means each of the several States, the District of Columbia, and the 
Commonwealth of Puerto Rico.


(Authority: 38 U.S.C. 101(20))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 32071, Aug. 4, 1989; 62 
FR 17708, Apr. 11, 1997]

              Educational and Vocational Training Services



Sec. 21.120  Educational and vocational training services.

    (a) Purposes. The purposes of providing educational and vocational 
training services are to enable a veteran eligible for, and entitled to, 
services and assistance under Chapter 31 to:
    (1) Meet the requirements for employment in the occupational 
objective established in the IWRP (Individualized Written Rehabilitation 
Plan);
    (2) Provide incidental training which is necessary to achieve the 
employment objective in the IEAP (Individualized Employment Assistance 
Plan);
    (3) Provide incidental training needed to achieve the goals of an 
IILP (Individualized Independent Living Plan); or
    (4) Provide training services necessary to implement an IEEP 
(Individualized Extended Evaluation Plan).
    (b) Selection of courses. VA will generally select courses of study 
and training, completion of which usually results in a diploma, 
certificate, degree, qualification for licensure, or employment. If such 
courses are not available in the area in which the veteran resides, or 
if they are available but not accessible to the veteran, other 
arrangements may be made. Such arrangements may include, but are not 
limited to:
    (1) Relocation of the veteran to another area in which necessary 
services are available, or
    (2) Use of an individual instructor to provide necessary training.


(Authority: 38 U.S.C. 3107)

    (c) Charges for education and training services. The cost of 
education and training services will be one of the factors considered in 
selecting a facility when:
    (1) There is more than one facility in the area in which the veteran 
resides which:
    (i) Meets requirements for approval under Sec. Sec. 21.292 through 
21.298;
    (ii) Can provide the education and training services, and other 
supportive services specified in the veteran's plan; and
    (iii) Is within reasonable commuting distance; or
    (2) The veteran wishes to train at a suitable facility in another 
area, even though training can be provided at a suitable facility in the 
area in which the veteran resides.


(Authority: 38 U.S.C. 3104(a)(7), 3115(a))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.122  School course.

    (a) Explanation of terms--schools, educational institution, and 
institution. These terms mean any public or private school, secondary 
school, vocational school, correspondence school, business school, 
junior college, teacher's college, college, normal school, professional 
school, university, scientific or technical institution, or other 
institution funishing education for adults.


(Authority: 38 U.S.C. 501(a), 3104)


[[Page 146]]


    (b) Course. A course generally consists of a number of areas of 
subject matter which are organized into learning units for the purpose 
of attaining a specific educational or vocational objective. Organized 
instruction in the units comprising the course is offered within a given 
period of time and credit toward graduation or certification is 
generally given.


(Authority: 38 U.S.C. 3104(a)(7))

    (c) School course. A school course is a course as defined in 
paragraph (b) of this section offered by a facility identified in 
paragraph (a) of this section.


(Authority: 38 U.S.C. 3115)



Sec. 21.123  On-job course.

    (a) Training establishment. This term means any establishment 
providing apprentice or other training on the job, including those under 
the supervision of a college or university or any State department of 
education, or any state apprenticeship agency, or any State board of 
vocational education, or any joint apprenticeship committee, or the 
Bureau of Apprenticeship and Training established in accordance with 29 
U.S.C. Chapter 4C, or any agency of the Federal government authorized to 
supervise such training.
    (b) On-job course, An on-job course is pursued toward a specified 
vocational objective, provided by a training establishment. The trainee 
learns, in the course of work performed under supervision, primarily by 
receiving formal instruction, observing practical demonstration of work 
tasks, and assisting in those tasks. Productive work should gradually 
increase with greater independence from formal instruction as the course 
progresses.

(Authority: 38 U.S.C. 501(a), 3104)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.124  Combination course.

    (a) General. A combination course is a course which combines 
training on the job with training in school. For the purpose of VA 
vocational rehabilitation, a course will be considered to be a 
combination course, if the student spends full-time on the job and one 
or more times a week also attends school on a part-tme basis. A veteran 
may pursue the components of a combination course in the following 
manner:
    (1) Concurrent school and on-job training;
    (2) Primarily on-job with some related instruction in school;
    (3) In a school as a preparatory course to entering on-job training; 
or
    (4) First training on-job followed by the school portion.
    (b) Cooperative course. A cooperative course is a special type of 
combination course which usually:
    (1) Has an objective which the student attains primarily through 
school instruction with the on-job portion being supplemental to the 
school course;
    (2) Is at the college or junior college level although some 
cooperative courses are offered at post-secondary schools which do not 
offer a college degree or at secondary schools;
    (3) Requires the student to devote at least one-half of the total 
training period to the school portion of the course; and
    (4) Includes relatively long periods each of training on the job and 
in school such as a full term in school followed by a full term on the 
job.

(Authority: 38 U.S.C. 3104(a)(7))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.126  Farm cooperative course.

    (a) Definition. An approvable farm cooperative course is a full-time 
course designated to restore employability by training a veteran to:
    (1) Operate a farm which he or she owns or leases; or
    (2) Manage a farm as the employee of another.
    (b) Reaching the goal of a farm cooperative course. The farm 
cooperative course must enable a veteran to become proficient in the 
type of farming for which he or she is being provided rehabilitation 
services. The areas in which proficiency is to be established include:
    (1) Planning;
    (2) Producing;
    (3) Marketing;
    (4) Maintaining farm equipment;
    (5) Conserving farm resources;

[[Page 147]]

    (6) Financing the farm;
    (7) Managing the farm; and
    (8) Keeping farm and home accounts.
    (c) Instruction, including organized group instruction. Instruction 
in a farm cooperative course may be by a mixture of organized group 
(classroom) instruction and individual instruction or by individual 
instruction alone. A course which includes organized group instruction 
must meet the following criteria to be considered as full-time:
    (1) The number of clock hours of instruction which should be 
provided yearly shall meet the requirements of Sec. 21.310(a)(4) and 
Sec. 21.4264 pertaining to full-time pursuit of a farm cooperative 
course:
    (2) The individual instructor portion of a farm cooperative course 
shall include at least 100 hours of individual instruction per year.
    (d) Instruction given solely by an individual instructor. (1) 
Instruction in a farm cooperative course may be given solely by an 
individual instructor if organized group instruction is:
    (i) Not available within reasonable commuting distance of the 
veteran's farm; or
    (ii) The major portion of the organized group instruction that is 
available does not have a direct relation to the veteran's farming 
operation and pertinent VA records are fully and clearly documented 
accordingly.
    (2) To be considered full-time pursuit the individual instruction 
provided in these course must:
    (i) Consist of at least 200 hours of instruction per year;
    (ii) Be given by a fully qualified individual instructor by contract 
between VA and the instructor or an educational agency which employs the 
instructor.
    (e) Plan requirements for farm operator or farm manager. (1) The 
plan for training developed by the case manager and the veteran in 
collaboration with the instructor must include:
    (i) A complete written survey including but not limited to the areas 
identified in Sec. 21.298 (a) and (b);
    (ii) An overall, long-term plan based upon the survey of the 
operation of the farm;
    (iii) An annual plan identifying the part of the overall plan to be 
implemented which will be prepared before the beginning of each crop 
year; and
    (iv) A detailed individual training program showing the kind and 
amount of instruction, classroom and individual, or individual; and
    (2) The farm must meet the requirements for selecting a farm found 
in Sec. 21.298.

(Authority: 38 U.S.C. 3104(a)(7))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.128  Independent study course.

    A veteran may pursue a course by independent study under the 
following conditions:
    (a) College level. The course is offered by a college or university.
    (b) College degree. The course leads to or is fully creditable 
towards a standard college degree.
    (c) Course content. The course consists of a prescribed program of 
study with provision for interaction between the student and regularly 
employed faculty of the university or college by mail, telephone, 
personally, or class attendance.
    (d) School responsibility. The university or college:
    (1) Evaluates the course in semester or quarter hours or the 
equivalent; and
    (2) Prescribes a period for completion.

(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.129  Home study course.

    (a) Definition. A home study course is a course conducted by mail, 
consisting of a series of written lesson assignments furnished by a 
school to the student for study and preparation of written answers, 
solutions to problems, and work projects which are corrected and graded 
by the school and returned to the trainee.
    (b) Limitations on inclusion of home study courses, in 
rehabilitation plans. A veteran and his or her case manager may include 
a home study course in a rehabilitation plan only when it supplements 
the major part of the program. The purpose of the home study course is 
to provide the veteran with

[[Page 148]]

theory or technical information directly related to the practice of the 
occupation for which the veteran is training.

(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.130  Educational and vocational courses outside the United States.

    (a) General. VA may provide educational and vocational courses 
outside a State if the case manager determines that such training is in 
the best interest of the veteran and the Federal Government.
    (b) Specific conditions. (1) The training must be necessary to 
enable the veteran to qualify for, obtain, and retain suitable 
employment in the occupational objective; and
    (2) Either:
    (i) The training is not available in the United States; or
    (ii) The training is available in the United States, but personal 
hardship would result from requiring that the veteran pursue training in 
this country; and
    (3) All necessary supportive and follow-up services, including 
medical care and treatment and employment services, reasonably can be 
provided by or through VA, considering such factors as the availability, 
accessibility and cost of such services.

(Authority: 38 U.S.C. 3114)

[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 27822, July 6, 1990]



Sec. 21.132  Repetition of the course.

    (a) Repeating all or part of the course. A veteran, having completed 
a course under Chapter 31 according to the standards and practices of 
the institution, ordinarily will not pursue it again at the expense of 
VA. However, VA may approve repetition of all, or any part of the course 
when VA determines that the repetition is necessary to accomplish the 
veteran's vocational rehabilitation. A veteran repeating a course under 
Chapter 31 is subject to the same requirements for satisfactory pursuit 
and completion of the course as are other veterans taking the course 
unless a longer period is needed because of the veteran's reduced work 
tolerance.


(Authority: 38 U.S.C. 3104(a)(7))

    (b) Review course. A veteran who has completed a course of training 
under Chapter 31 may pursue a review course, such as a bar review 
course, if it is specifically organized and conducted as a review 
course.


(Authority: 38 U.S.C. 3104(a)(7))

    (c) Auditing a subject. Auditing, as defined in Sec. 21.4200(i), 
may not be authorized as a part of any rehabilitation plan. However, if 
an individual repeats a course under the conditions described in 
paragraph (a) of this section, the course shall not be considered an 
audited course, if pursued in the same manner as a subject offered for 
credit. The individual must meet the same requirements as other 
students, and not be a mere listener.


(Authority: 38 U.S.C. 3680(a))



Sec. 21.134  Limitation on flight training.

    Flight Training approved under chapter 31 may only be authorized in 
degree curriculums in the field of aviation that include required flight 
training. This type of training is otherwise subject to the same 
limitations as are applicable to flight training under Chapter 30.

(Authority: 38 U.S.C. 3680A(b))

[57 FR 57108, Dec. 3, 1992]

                     Special Rehabilitation Services



Sec. 21.140  Evaluation and improvement of rehabilitation potential.

    (a) General. The purposes of these services are to:
    (1) Evaluate if the veteran:
    (i) Has an employment handicap;
    (ii) Has a serious employment handicap; and
    (iii) Is reasonably feasible for a vocational goal or an independent 
living goal.
    (2) Provide a basis for planning:
    (i) A program of services and assistance to improve the veteran's 
potential for vocational rehabilitation or independent living;
    (ii) A suitable vocational rehabilitation program; or
    (iii) A suitable independent living program.

[[Page 149]]

    (3) Reevaluate the vocational rehabilitation or independent living 
potential of a veteran participating in a rehabilitation program under 
Chapter 31, as necessary.
    (4) Enable a veteran to achieve:
    (i) A vocational goal; or
    (ii) An independent living goal.


(Authority: 38 U.S.C. 3104)

    (b) Periods during which evaluation and improvement services may be 
provided. Evaluation and improvement services may be provided 
concurrently, whenever necessary, with a period of rehabilitation 
services, including:
    (1) Initial evaluation or reevaluation;
    (2) Extended evaluation:
    (3) Rehabilitation to the point of employability:
    (4) A program of independent living services: or
    (5) Employment services, incidental to obtaining or maintaining 
employment.
    (c) Duration of full-time assistance. If evaluation and improvement 
services are furnished on a full-time basis as a preliminary part of the 
period of rehabilitation to the point of employability, or as the 
vocational rehabilitation program, the duration of such assistance may 
not exceed 12 months, except as provided in Sec. 21.74(c).


(Authority: 38 U.S.C. 3105)

    (d) Scope of services. Evaluation and improvement services include:
    (1) Diagnostic services;
    (2) Personal and work adjustment training;
    (3) Medical care and treatment;
    (4) Independent living services;
    (5) Language training, speech and voice correction, training in 
ambulation, and one-hand typewriting;
    (6) Orientation, adjustment, mobility and related services; and
    (7) Other appropriate services.


(Authority: 38 U.S.C. 3104(a)(1), (6), (9), (10), (15))



Sec. 21.142  Adult basic education.

    (a) Definition. The term adult basic education means an 
instructional program for the undereducated adult planned around those 
basic and specific skills most needed to help him or her to function 
adequately in society.
    (b) Purposes. The purposes of providing adult basic education are 
to:
    (1) Upgrade a veteran's basic educational skills;
    (2) Provide refresher training; or
    (3) Remedy deficiencies which prevent the veteran from undertaking a 
course of education or vocational training.
    (c) Periods during which basic adult education may be provided. 
Basic adult education may be authorized, as necessary, during;
    (1) Rehabilitation to the point of employability;
    (2) Extended evaluation; and
    (3) Independent living services.

(Authority: 38 U.S.C. 3104(a)(1))



Sec. 21.144  Vocational course in a sheltered workshop or rehabilitation 
facility.

    (a) General. A vocational course in a sheltered workshop or 
rehabilitation facility may be an institutional, on-job, or combination 
course which has been modified to facilitate successful pursuit by a 
person with a disability that would otherwise prevent or impair the 
person's participation in the course.
    (b) Authorization. A vocational course in a sheltered workshop or 
rehabilitation facility may be authorized when the training offered is a 
sound method of restoring a veteran's employability.

(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.146  Independent instructor course.

    (a) Definition. An independent instructor course is a full-time 
course of vocational training which the veteran pursues with an 
individual instructor, who, independently of a training institution or 
on-job training establishment, furnishes and conducts a vocational 
course at a suitable place of training.
    (b) Limitations on including an independent instructor course in a 
rehabilitation plan. A veteran and his or her case manager may include 
an independent instructor course in a rehabilitation plan, other than 
one involving a farm cooperative program, only when either

[[Page 150]]

or both of the following conditions exist:
    (1) Training is not available through an established school, on-job 
training establishment, rehabilitation facility or sheltered workshop 
within a reasonable commuting distance from the veteran's home; or
    (2) The veteran's condition or other circumstances do not permit the 
veteran to attend an otherwise suitable facility within commuting 
distance. See Sec. 21.126.
    (c) Training in the home. Training in the home is a specialized type 
of independent instructor course which the veteran pursues in his or her 
home if:
    (1) He or she is unable to pursue training at an otherwise suitable 
facility because of the effects of his or her disability;
    (2) Based on proper medical opinion, the veteran is able to pursue 
the prescribed training; and
    (3) The veteran's home provides a favorable educational environment 
with adequate work and study space.
    (d) Planning an individual instructor course. The case manager, the 
veteran, and the instructor should jointly plan the training program for 
a veteran for whom an independent instructor course is prescribed.
    (e) Assuring employment. Since the customary channels leading to 
employment may not be readily available to a veteran requiring an 
individual instructor course, the IEAP (Individual Employment Assistance 
Plan) shall indicate thorough consideration of plans and prospects for 
seeking and obtaining employment, including self-employment, upon 
completion of training.
    (f) Rate of pursuit. A veteran in an independent instructor program 
shall pursue training at a rate comparable to the rate at which similar 
training is pursued on an institutional basis, unless the veteran's work 
tolerance is reduced by the effects of his or her disability.

(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.148  Tutorial assistance.

    (a) General. A veteran may be provided individualized tutorial 
assistance, if VA determines that special assistance beyond that 
ordinarily given by the facility to students pursuing the same or a 
similar subject is needed to correct a deficiency in a subject.
    (b) Authorization of tutorial assistance. Tutorial assistance may be 
provided during any period of rehabilitation services authorized by VA.


(Authority: 38 U.S.C. 3104(a)(7))

    (c) Use of relatives precluded. Tutorial assistance at VA expense 
may not be provided by a relative of the veteran. The term relative has 
the same meaning as under Sec. 21.374 pertaining to the use of a 
relative as an attendant.


(Authority: 38 U.S.C. 3492)

    (d) Payment at the Chapter 30 rate. If a veteran has elected payment 
at the educational assistance rate payable under Chapter 30, he or she 
may not be provided individualized tutorial assistance under provision 
of Chapter 31. (See Sec. 21.334.)


(Authority: 38 U.S.C. 3108(f))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.150  Reader service.

    (a) Limitations on vision. A veteran considered to have a visual 
impairment necessitating reader service includes a veteran:
    (1) Whose best corrected vision is 20/200 in both eyes;
    (2) Whose central vision is greater than 20/200 but whose field of 
vision is limited to such an extent that the widest diameter of a visual 
field subtends to an angle no greater than 20 degrees; or
    (3) With impaired vision, whose condition or prognosis indicates 
that the residual sight will be adversely affected by the use of his or 
her eyes for reading.
    (b) Periods during which reader service may be provided. reader 
service necessary to the development of a rehabilitation plan, or the 
successful pursuit of a rehabilitation program may be provided during:
    (1) Initial evaluation or reevaluation;
    (2) Extended evaluation;
    (3) Rehabilitation to the point of employability;
    (4) Independent living services; or

[[Page 151]]

    (5) Employment services, including an initial employment period of 
up to three months.
    (c) Reader responsibility. The reader should be able to do more than 
read to the veteran. The reader should have an understanding of the 
subject matter based upon prior training or experience which allows him 
or her to:
    (1) Read printed material with understanding; and
    (2) Test the veteran's understanding of what has been read.
    (d) Extent of service. The number of hours of service will be 
determined in each case by the amount of reading necessitated by the 
course and the efficacy of other equipment with which the veteran has 
been furnished to enable him or her to read printed material unassisted.
    (e) Recording. VA will not normally pay for recording textbooks or 
other materials as a part of reader services, since excellent recording 
services are provided by volunteer organizations at no cost.
    (f) Selecting a relative as a reader. Utilization of a relative of 
the veteran as a reader is subject to the limitations on use of a 
relative as an attendant under Sec. 21.374.

(Authority: 38 U.S.C. 3104(a)(14))



Sec. 21.152  Interpreter service for the hearing impaired.

    (a) General. The main purpose of interpreter service for the hearing 
impaired is to facilitate instructor-student communication. VA will 
provide interpreter service as necessary for the development and pursuit 
of a rehabilitation program. This service will be provided if:
    (1) A VA physician determines that:
    (i) The veteran is deaf or his or her hearing is severely impaired; 
and
    (ii) All appropriate services and aids have been furnished to 
improve the veteran's residual hearing; or
    (2) A VA physician determines that the veteran:
    (i) Can benefit from language and speech training; and
    (ii) Agrees to undertake language and speech training.
    (b) Periods during which interpreter service may be provided. 
Interpreter service may be furnished during:
    (1) Initial evaluation or reevaluation;
    (2) Extended evaluation;
    (3) Rehabilitation to the point of employability;
    (4) Independent living services; or
    (5) Employment services, including the first three months of 
employment.
    (c) Selecting the interpreter. Only certified interpreters or 
persons meeting generally accepted standards for interpreters shall 
provide interpreter service. When an individual is not certified by a 
State or professional association, VA shall seek the assistance of a 
State certifying agency or a professional association in ascertaining 
whether the individual is qualified to serve as an interpreter.


(Authority: 38 U.S.C. 3104(a)(14))

    (d) Relatives. Interpreter service at VA expense may not be provided 
by a relative of the veteran. The term relative has the same meaning as 
under Sec. 21.374 pertaining to the use of relatives as attendants.


(Authority: 38 U.S.C. 3492)



Sec. 21.154  Special transportation assistance.

    (a) General. A veteran, who because of the effects of disability has 
transportation expenses in addition to those incurred by persons not so 
disabled, shall be provided a transportation allowance to defray such 
additional expenses. The assistance provided in this section is in 
addition to provisions for interregional and intraregional travel which 
may be authorized under provisions of Sec. Sec. 21.370 through 21.376.


(Authority: 38 U.S.C. 3104(a)(13))

    (b) Periods during which special transportation allowance may be 
provided. A special transportation allowance may be provided during:
    (1) Extended evaluation;
    (2) Rehabilitation to the point of employability;
    (3) Independent living services; or
    (4) Employment services, including the first three months of 
employment.


(Authority: 38 U.S.C. 3104(a)(14))

    (c) Scope of transportation assistance. (1) Transportation 
assistance includes

[[Page 152]]

mileage, parking fees, reasonable fee for a driver, transportation 
furnished by a rehabilitation facility or sheltered workshop, and other 
reasonable expenses which may be incurred in local travel;
    (2) The veteran's monthly transportation allowance may not exceed 
the lesser of actual expenses incurred or one-half of the subsistence 
allowance of a single veteran in full-time institutional training, 
unless extraordinary arrangements, such as transportation by ambulance, 
are necessary to enable a veteran to pursue a rehabilitation program.
    (d) Determining the need for a transportation allowance. The case 
manager will determine the need for a transportation allowance. The 
assistance of a medical consultant shall be utilized, as necessary, to 
determine the need for special transportation assistance and to develop 
transportation arrangements which do not unduly tax the veteran's 
ability to travel and pursue a rehabilitation program.
    (e) Use of a relative precluded. A relative of the veteran may not 
be paid any part of a special transportation allowance. The term 
relative has the same meaning as under Sec. 21.374 pertaining to the 
use of a relative as an attendant.


(Authority: 38 U.S.C. 3104(a)(13))



Sec. 21.155  Services to a veteran's family.

    (a) General. VA shall provide services to a veteran's family which 
are necessary to the implementation of the veteran's rehabilitation 
plan. The term family includes the veteran's immediate family, legal 
guardian, or any individual in whose home the veteran certifies an 
intention to live.
    (b) Scope of services to a veteran's family. The services which may 
be furnished to the family are generally limited to consultation, 
homecare training, counseling, and mental health services of brief 
duration which are designed to enable the family to cope with the 
veteran's needs. Extended medical, psychiatric or other services may not 
be furnished to family members under these provisions.
    (c) Providing services to a veteran's family. VR&C Staff will:
    (1) Identify services which family members may need to facilitate 
the rehabilitation of the veteran; and
    (2) Arrange for provision of the services which have been 
identified.
    (d) Resources for provision of services to family members. (1) The 
established program and services which are furnished by Veterans Health 
Administration (VHA) to family members of veterans eligible for Chapter 
31 should be used to the extent practicable; but
    (2) If services are not readily available through regular VHA 
programs, necessary services will normally be secured through 
arrangements with other public and nonprofit agencies.

(Authority: 38 U.S.C. 3104(a)(11))

[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]



Sec. 21.156  Other incidental goods and services.

    (a) General. Other incidental goods and services may be authorized 
if the case manager determines them to be necessary to implement the 
veteran's rehabilitation plan. For example, a calculator may be 
authorized for a veteran pursuing an engineering degree, even though the 
veteran may not be required to have a calculator for any specific 
subject in his or her course, where there is substantial evidence that 
lack of a calculator places the veteran at a distinct disadvantage in 
successfully pursuing the course.
    (b) Limitation on cost. The costs of incidental goods and services 
normally should not exceed five percent of training costs for any 
twelve-month period.

(Authority: 38 U.S.C. 3104(a)(10))

                       Independent Living Services



Sec. 21.160  Independent living services.

    (a) Purpose. The purpose of independent living services is to assist 
eligible veterans whose ability to function independently in family, 
community, or employment is so limited by the severity of disability 
(service and nonservice-connected) that vocational or rehabilitation 
services need to be appreciably more extensive than for less disabled 
veterans.


(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)


[[Page 153]]


    (b) Definitions. The term independence in daily living means the 
ability of a veteran, without the services of others or with a reduced 
level of the services of others, to live and function within the 
veteran's family and community.


(Authority: 38 U.S.C. 3101(2))

    (c) Situations under which independent living services may be 
furnished. Independent living services may be furnished:
    (1) As part of a program to achieve rehabilitation to the point of 
employability;
    (2) As part of an extended evaluation to determine the current 
reasonable feasibility of achieving a vocational goal;
    (3) Incidental to a program of employment services; or
    (4) As a program of rehabilitation services for eligible veterans 
for whom achievement of a vocational goal is not currently reasonably 
feasible. This program of rehabilitation services may be furnished to 
help the veteran:
    (i) Function more independently in the family and community without 
the assistance of others or a reduced level of the assistance of others;
    (ii) Become reasonably feasible for a vocational rehabilitation 
program; or
    (iii) Become reasonably feasible for extended evaluation.


(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

    (d) Services which may be authorized. The services which may be 
authorized as part of an IILP (Individualized Independent Living Plan) 
include:
    (1) Any appropriate service which may be authorized for a vocational 
rehabilitation program as that term is defined in Sec. 21.35(i), except 
for a course of education or training as described in Sec. 21.120; and
    (2) Independent living services offered by approved independent 
living centers and programs which are determined to be necessary to 
carry out the veteran's plan including:
    (i) Evaluation of independent living potential;
    (ii) Training in independent living skills;
    (iii) Attendant care;
    (iv) Health maintenance programs; and
    (v) Identifying appropriate housing accommodations.


(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

    (e) Coordination with other VA elements and other Federal, State, 
and local programs. Implementation of programs of independent living 
services and assistance will generally require extensive coordination 
with other VA and non-VA programs. If appropriate arrangements cannot be 
made to provide these services through VA, other governmental, private 
nonprofit and for-profit agencies and facilities may be used to secure 
necessary services if the requirements contained in Sec. 21.294 are 
met.


(Authority: 38 U.S.C. 3104(a)(15), 3109, 3115, 3120)

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 
55 FR 42186, Oct. 18, 1990]



Sec. 21.162  Participation in a program of independent living services.

    (a) Approval of a program of independent living services. A program 
of independent living services and assistance is approved when:
    (1) The VA determines that achievement of a vocational goal is not 
currently reasonably feasible;
    (2) The VA determines that the veteran's independence in daily 
living can be improved, and the gains made can reasonably be expected to 
continue following completion of the program;
    (3) All steps required by Sec. Sec. 21.90 and 21.92 of this part 
for the development and preparation of an Individualized Independent 
Living Plan (IILP) have been completed; and
    (4) The VR&C Officer concurs in the IILP.


(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

    (b) Considerations for the VR&C Officer. The VR&C Officer will 
consider the following factors in administering programs providing 
independent living services:
    (1) If VA resources available limit the number of veterans who may 
be provided a program of independent living services and assistance, the 
first priority shall be given to veterans for whom the reasonable 
feasibility of

[[Page 154]]

achieving a vocational goal is precluded solely as a result of service-
connected disability; and
    (2) To the maximum extent feasible, a substantial portion of 
veterans provided with programs of independent living services and 
assistance shall be receiving long-term care in VA medical centers and 
nursing homes.


(Authority: 38 U.S.C. 3120(c))

[49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19, 1988; 
55 FR 48842, Nov. 23, 1990; 62 FR 17708, Apr. 11, 1997]

                               Case Status



Sec. 21.180  Case status system.

    (a) General. Each veteran's case will be assigned to a specific case 
status from the point of initial contact until all appropriate steps in 
the rehabilitation process have been completed. The case status system 
will:
    (1) Assist VR&C staff to fulfill its case management responsibility 
to provide authorized assistance to enable the veteran to successfully 
pursue his or her program; and
    (2) Assure program management and accountability.


(Authority: 38 U.S.C. 3107)

    (b) Responsibility for change of case status. The case manager is 
responsible for assigning a case to the appropriate case status at each 
point in the rehabilitation process.
    (c) Case manager. The VR&C (Vocational Rehabilitation and 
Employment) Officer or his or her designee will assign a case manager 
when the veteran's case is placed in evaluation and planning status. The 
VR&C Officer or his or her designee may assign case management 
responsibility for development and implementation of a rehabilitation 
plan authorized under Chapter 31 to a counseling psychologist or 
vocational rehabilitation specialist in the VR&C Division. The case 
manager assigned will, unless replaced by the VR&C Officer, continue to 
be responsible for case management throughout the course of the 
veteran's rehabilitation program. When securing medical care, treatment, 
and other related services, the VR&C case manager will coordinate with 
Veterans Health Administration (VHA) staff members who have case 
management responsibility for the veteran.


(Authority: 38 U.S.C. 3106(e))

    (d) Informing the veteran. The veteran will be informed in writing 
of changes in case status by VA which affect his or her receipt of 
benefits and services under Chapter 31. The letter to the veteran will 
include the reason for the change of case status, and other information 
required under provisions of Sec. 21.420.


(Authority: 38 U.S.C. 3107)

    (e) Normal progression for eligible veterans. The cases of veterans 
who are eligible for and entitled to services under Chapter 31 for whom 
individualized plans have been prepared will generally undergo the 
following changes of status:
    (1) Individualized written rehabilitation plan. A veteran with an 
IWRP (Individualized Written Rehabilitation Plan) will generally move 
sequentially from applicant status through evaluation and planning 
status, rehabilitation to the point of employability status, employment 
services status, and rehabilitated status.
    (2) Individualized extended evaluation plan. A veteran with an IEEP 
(Individualized Extended Evaluation Plan) will generally move from 
applicant status through evaluation and planning status to extended 
evaluation status. Once in extended evaluation status there will 
generally be a finding which leads to development of an IWRP (paragraph 
(e)(1) of this section), or IILP (Individualized Independent Living 
Plan) (paragraph (e)(3) of this section).
    (3) Individualized independent living plan. A veteran with an IILP 
(Individualized Independent Living Plan) will generally move from 
applicant status through evaluation and planning, extended evaluation, 
independent living, and rehabilitated status.
    (4) Individualized employment assistance plan. (i) A veteran with an 
IEAP (Individualized Employment Assistance Plan) which is a part of an 
IWRP will move through the case statuses described in paragraph (e)(1) 
of this section, or in some cases through the steps in paragraph (e)(2) 
of this section.

[[Page 155]]

    (ii) A veteran for whom only employment services are provided will 
generally move from applicant through evaluation and planning, 
employment services to rehabilitated status.


(Authority: 38 U.S.C. 3107)

    (f) Normal progression for ineligible veterans. A veteran found 
ineligible for services under Chapter 31 will generally move from 
applicant to evaluation and planning status, to ineligible status.


(Authority: 38 U.S.C. 3107)

    (g) Changes of status. The case manager may change the case status 
when:
    (1) Conditions for change specified in the status are met;
    (2) The change is not specifically precluded by the status to which 
change is being considered; and
    (3) The change is consistent with provisions of other applicable 
regulations.


(Authority: 38 U.S.C. 3106)

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 34987, Aug. 23, 1989; 
62 FR 17708, Apr. 11, 1997]



Sec. 21.182  ``Applicant'' status.

    (a) Purpose. The purposes of applicant status are to:
    (1) Process a veteran's claim for assistance under Chapter 31 in a 
timely manner; and
    (2) Identify service-disabled veterans whom VA should contact 
individually to increase their awareness and understanding of how they 
may benefit from services furnished under Chapter 31.


(Authority: 38 U.S.C. 3102)

    (b) Assignment to applicant status. VA will assign a veteran's 
records to applicant status when either:
    (1) VA receives a formal or informal application from a veteran for 
services under Chapter 31; or
    (2) The VR&C (Vocational Rehabilitation and Employment) Division:
    (i) Advises a veteran in writing of the veteran's potential 
eligibility for Chapter 31 services, or
    (ii) Is informed that the veteran has been advised in writing of his 
or her potential eligibility for Chapter 31 services by other VA 
elements.


(Authority: 38 U.S.C. 3102(2))

    (c) Termination of applicant status. Applicant status will be 
terminated when:
    (1) An appointment for an initial evaluation has been kept by the 
veteran; or
    (2) The veteran's service-connected disability is reduced to a 
noncompensable degree; or
    (3) The veteran's service-connected disability is severed; or
    (4) The veteran's application is invalid because of fraud or error; 
or
    (5) The veteran withdraws his or her claim, or otherwise indicates 
that no further assistance is desired.


(Authority: 38 U.S.C. 3106)

    (d) Transfer of terminated cases to discontinued status. Each 
instance in which a veteran's case is terminated for reasons described 
in paragraph (c)(4) or (5) of this section shall be placed in 
discontinued status.


(Authority: 38 U.S.C. 3102)

    Cross-Reference: See Sec. Sec. 21.30 Claims, 21.31 Informal claims, 
and 21.32 Time limits.

[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987]



Sec. 21.184  ``Evaluation and planning'' status.

    (a) Purpose. The purpose of evaluation and planning status is to 
identify veterans for whom evaluation and planing services are needed 
to:
    (1) Accomplish an initial evaluation as provided in Sec. 21.50;
    (2) Develop an IWRP (Individualized Written Rehabilitation Plan), 
IEEP (Individualized Extended Evaluation Plan), IILP (Individualized 
Independent Living Plan) or IEAP (Individualized Employment Assistance 
Plan); or
    (3) Reevaluate:
    (i) Findings made in prior initial evaluations, or
    (ii) Current or previous individualized rehabilitation plans.
    (b) Assignment to evaluation and planning status. A veteran's 
records will be

[[Page 156]]

assigned to evaluation and planning status for any of the purposes 
specified in paragraph (a) of this section.
    (c) Termination of evaluation and planning status. The assignment of 
the veteran's records to evaluation and planning status may be 
terminated under the following conditions:
    (1) Evaluation and planning completed. The services necessary to 
complete evaluation and planning have been provided. These services are:
    (i) Completion of an initial evaluation;
    (ii) Development of an IWRP (Individualized Written Rehabilitation 
Plan) or other individual rehabilitation plan in those cases in which 
eligibility and entitlement to services provided under Chapter 31 are 
established; or
    (iii) Completion of reevaluation of prior findings made in initial 
evaluation or modification of a rehabilitation plan.
    (2) Evaluation and planning not completed. The VR&C Division shall 
make every reasonable effort to enable the veteran to complete the 
evaluation and planning phase of the rehabilitation process. A 
determination that every reasonable effort by VA has been made, and that 
little likelihood exists that continued efforts will lead to completion 
of planning and evaluation, may be made under the following conditions:
    (i) The veteran writes VA and requests that his or her case be 
inactivated;
    (ii) The veteran fails to keep scheduled appointments following his 
or her initial appointment; or
    (iii) The veteran otherwise fails to cooperate with VA in the 
evaluation and planning process. If the veteran fails to cooperate, the 
provisions of Sec. 21.362 are applicable.

(Authority: 38 U.S.C. 3106, 3107)

    Cross-Reference: See Sec. Sec. 21.50 through 21.58 Initial and 
extended evaluation, and Sec. Sec. 21.80 through 21.98 Individualized 
written rehabilitation plan.3



Sec. 21.186  ``Ineligible'' status.

    (a) Purpose. The purpose of ineligible status is to identify the 
cases in which a veteran requests services under Chapter 31, but the 
request is denied by VA, usually, on the basis of information developed 
when the veteran was in evaluation and planning status.


(Authority: 38 U.S.C. 3106)

    (b) Assignment to ineligible status. A veteran's case will be 
assigned to ineligible status following a finding by VA that the veteran 
is not eligible for or entitled to services under Chapter 31. The 
finding must preclude all possible Chapter 31 services.


(Authority: 38 U.S.C. 3106, 3107)

    (c) Termination of ineligible status. The assignment of the 
veteran's case to ineligible status should be terminated if the veteran 
thereafter becomes eligible to receive any Chapter 31 service. Placement 
of the case in ineligible status is a bar to reconsideration of 
eligibility unless a material change in circumstances occurs.


(Authority: 38 U.S.C. 3106)



Sec. 21.188  ``Extended evaluation'' status.

    (a) Purpose. The purposes of extended evaluation status are to:
    (1) Identify a veteran for whom a period of extended evaluation is 
needed; and
    (2) Assure that necessary services are provided by VA during the 
extended evaluation.


(Authority: 38 U.S.C. 3106)

    (b) Assignment to extended evaluation status. A veteran's case may 
be assigned or reassigned to extended evaluation status under provisions 
of Sec. 21.57, Sec. 21.74, Sec. 21.86, Sec. 21.94, Sec. 21.96, or 
Sec. 21.98.


(Authority: 38 U.S.C. 3107)

    (c) Continuation in extended evaluation status. A veteran's case 
will be in extended evaluation status during periods in which:
    (1) The veteran is pending induction into the facility at which 
rehabilitation services will be provided;
    (2) The veteran is receiving rehabilitation services prescribed in 
the IEEP (Sec. 21.86); or
    (3) The veteran is on authorized leave of absence during an extended 
evaluation.


(Authority: 38 U.S.C. 3108)


[[Page 157]]


    (d) Termination of extended evaluation status. A veteran in extended 
evaluation status will remain in that status until one of the following 
events occur:
    (1) Following notification of necessary arrangements to begin an 
extended evaluation, the date the extended evaluation begins, and 
instructions as to the next steps to be taken, the veteran:
    (i) Fails to report and does not respond to followup contact by the 
case manager;
    (ii) Declines or refuses to enter the program; or
    (iii) Defers induction for a period exceeding 30 days beyond the 
scheduled date of induction, except where the deferment is due to 
illness or other sufficient reason;
    (2) VA determines the reasonable feasibility of a vocational goal 
for the veteran before completion of all of the planned evaluation 
because the decision does not require the further evaluation;
    (3) The veteran completes the extended evaluation;
    (4) Either the veteran or VA interrupts the extended evaluation;
    (5) Either the veteran or VA discontinues the extended evaluation; 
or
    (6) Service-connection for the veteran's service-connected 
disability is severed by VA or his or her continued eligibility 
otherwise ceases.


(Authority: 38 U.S.C. 3106)

    Cross-References: See Sec. Sec. 21.57 Extended evaluation, 21.322 
Commencing dates, 21.324 Reduction or termination.



Sec. 21.190  ``Rehabilitation to the point of employability'' status.

    (a) Purpose. The rehabilitation to the point of employability status 
serves to:
    (1) Identify veterans who receive training and rehabilitation 
services to enable them to attain a vocational goal; and
    (2) Assure that services specified in the veteran's IWRP are 
provided in a timely manner by VA.


(Authority: 38 U.S.C. 3101)

    (b) Assignment. A veteran's case may be assigned or reassigned to 
rehabilitation to the point of employability status under the provisions 
of Sec. Sec. 21.84, 21.94, 21.96, or 21.98.


(Authority: 38 U.S.C. 3107)

    (c) Continuation in rehabilitation to the point of employability 
status. A veteran will be assigned to rehabilitation to the point of 
employability status during periods in which:
    (1) The veteran has progressed through applicant status and 
evaluation and planning status (including extended evaluation status 
when appropriate), and is pending induction into the facility at which 
training and rehabilitation services will be provided;
    (2) The veteran is receiving training and rehabilitation services 
prescribed in the IWRP; or
    (3) The veteran is on authorized leave of absence.


(Authority: 38 U.S.C. 3104, 3108)

    (d) Termination of rehabilitation to the point of employability 
status when goals of the IWRP for this period are achieved. VA will 
consider a veteran to have completed the period of rehabilitation to the 
point of employability, and will terminate this status under the 
following conditions:
    (1) The veteran achieves the goals of, and has been provided 
services specified in, the IWRP;
    (2) The veteran who leaves the program has completed a sufficient 
portion of the services prescribed in the IWRP to establish clearly that 
he or she is generally employable as a trained worker in the 
occupational objective established in the IWRP;
    (3) The veteran, who has not completed all prescribed services in 
the IWRP, accepts employment in the occupational objective established 
in the IWRP with wages and other benefits commensurate with wages and 
benefits received by trained workers; or
    (4) The veteran:
    (i) Satisfactorily completes a prescribed program, the practice of 
which requires pursuing an examination for licensure, but
    (ii) Is unable to take the licensure examination prior to the basic 
twelve-year termination date and there is no basis for extension of that 
date.


(Authority: 38 U.S.C. 3107)


[[Page 158]]


    (e) Other conditions for termination of rehabilitation to the point 
of employability status. In addition to termination under conditions 
described in paragraph (d) of this section, the classification of the 
veteran's records in this status may be terminated under any of the 
following conditions:
    (1) A veteran who has been notified of necessary arrangements to 
begin the program, the date the program begins and instructions as to 
the next steps to be taken:
    (i) Fails to report and does not respond to initial or subsequent 
followup by the case manager;
    (ii) Declines or refuses to enter the program; or
    (iii) Defers induction for a period exceeding 30 days beyond the 
scheduled beginning date of the program, except where the deferment is 
due to illness or other sufficient reason.
    (2) Either the veteran or VA interrupts the period of rehabilitation 
to the point of employability;
    (3) Either VA or the veteran discontinues the period of 
rehabilitation to the point of employability;
    (4) The veteran reaches his or her termination date, and there is no 
basis for extension under Sec. 21.44;
    (5) The veteran's entitlement to training and rehabilitation 
services under Chapter 31 is exhausted, and there is no basis for 
extension under Sec. 21.78; or
    (6) Service-connection for the veteran's service-connected 
disability is served by VA or he or she otherwise ceases to be eligible.


(Authority: 38 U.S.C. 3107)

    (f) Payment of employment adjustment allowance. An employment 
adjustment allowance will be paid when the veteran's classification in 
rehabilitation to the point of employability status is terminated under 
provisions of paragraph (d) of this section. An employment adjustment 
allowance will not be paid if termination is for one of the reasons 
specified in paragraph (e) of this section.


(Authority: 38 U.S.C. 3108(a))

    Cross-References: See Sec. Sec. 21.120 Educational and vocational 
trainings services, 21.282 Effective date of induction into a 
rehabilitation program, and 21.284 Reentering into a rehabilitation 
program.



Sec. 21.192  ``Independent living program'' status.

    (a) Purpose. The independent living program status serves to:
    (1) Identify veterans who are being furnished a program of 
independent living services by VA; and
    (2) Assure that such veterans receive necessary services from VA in 
a timely manner.
    (b) Assignment to independent living program status. A veteran may 
be assigned or reassigned to independent living program status under the 
provisions of Sec. Sec. 21.88, 21.94, 21.96, or 21.98.


(Authority: 38 U.S.C. 3107)

    (c) Continuation in independent living program status. A veteran 
will be in independent living program status during periods in which:
    (1) The provisions of Sec. 21.282 for induction into a program are 
met, but the veteran is pending induction into the facility at which 
rehabilitation services will be provided;
    (2) The veteran receives rehabilitation services prescribed in an 
IILP; or
    (3) The veteran is on authorized leave of absence status.


(Authority: 38 U.S.C. 3109, 3120)

    (d) Termination of independent living program status. When a 
veteran's case has been assigned to independent living program status, 
the case will be terminated from that status, if one of the following 
occurs:
    (1) A veteran, who has been notified of necessary arrangements to 
begin a program, the date the program begins and instructions as to the 
next steps to be taken:
    (i) Fails to report and does not respond to followup contact by the 
case manager;
    (ii) Declines or refuses to enter the program; or
    (iii) Defers entry for more than 30 days beyond the scheduled 
beginning date, unless the deferment is due to illness or other 
sufficient reason.
    (2) The veteran completes the IILP;
    (3) Either the veteran or VA interrupts the program;

[[Page 159]]

    (4) Either the veteran or VA discontinues the program; or
    (5) Service-connection for the veteran's service-connected 
disability is severed by VA or he or she otherwise ceases to be 
eligible.


(Authority: 38 U.S.C. 3109, 3110)

    Cross-References: See Sec. Sec. 21.160 Independent living services, 
21.282 Effective date of induction into a rehabilitation program, 21.322 
Commencing date, and 21.324 Reduction or termination date.



Sec. 21.194  ``Employment services'' status.

    (a) Purpose. The status employment services serves to:
    (1) Identify veterans who are being furnished employment services; 
and
    (2) Assure that these veterans receive necessary services in a 
timely manner.
    (b) Assignment to employment services status. A veteran's case may 
be assigned or reassigned to employment services status under the 
provisions of Sec. Sec. 21.84, 21.88, 21.94 and 21.98.
    (c) Continuation in employment services status. A case will remain 
in employment services status for the period specified in the IEAP, 
subject to the limitations specified in paragraph (d) of this section.
    (d) Termination of employment services status. The veteran will 
continue in employment services status until the earliest of the 
following events occurs:
    (1) He or she is determined to be rehabilitated under the provisions 
of Sec. 21.283; or
    (2) He or she is:
    (i) Employed for at least 60 days in employment that does not meet 
the criteria for rehabilitation contained in Sec. 21.283, if the 
veteran intends to maintain this employment and declines further 
assistance; and
    (ii) Adjusted to the duties and responsibilities of the job.
    (3) Either the veteran or VA interrupts the employment services 
program;
    (4) Either the veteran or VA discontinues the employment services 
program;
    (5) He or she reaches the end of the period for which employment 
services have been authorized and there is no basis for extension; or
    (6) Service-connection for the veteran's service-connected 
disability is severed or he or she otherwise ceases to be eligible.

(Authority: 38 U.S.C. 3117)

    Cross-References: See Sec. Sec. 21.47 Eligibility for employment 
assistance, 21.250 Overview of employment services, and 21.326 
Authorization of employment services.

[49 FR 40814, Oct. 18, 1984, as amended at 58 FR 68768, Dec. 29, 1993]



Sec. 21.196  ``Rehabilitated'' status.

    (a) Purpose. The purpose of rehabilitated status is to identify 
those cases in which the goals of a rehabilitation program or a program 
of employment services have been substantially achieved.
    (b) Assignment to ``rehabilitated'' status. A veteran's case shall 
be assigned to ``rehabilitated'' status when his or her case meets the 
criteria for rehabilitation contained in Sec. 21.283.


(Authority: 38 U.S.C. 3102, 3107 and 3117)

    (c) Termination of rehabilitated status. A veteran's case will not 
be removed from rehabilitated status under Sec. 21.284 once that status 
has been assigned, unless the determination of rehabilitation is set 
aside for a reason specified in Sec. 21.284.


(Authority: 38 U.S.C. 3100)

    Cross-Reference: See Sec. 21.284 Reentrance into a rehabilitation 
program.

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 58 
FR 68768, Dec. 29, 1993]



Sec. 21.197  ``Interrupted'' status.

    (a) Purpose. The purpose of interrupted status is to recognize that 
a variety of situations may arise in the course of a rehabilitation 
program in which a temporary suspension of the program is warranted. In 
each case, VA first must determine that the veteran will be able to 
return to a rehabilitation program or a program of employment services 
following the resolution of the situation causing the interruption. This 
determination will be documented in the veteran's record.


(Authority: 38 U.S.C. 3117)


[[Page 160]]


    (b) Assignment to ``interrupted'' status. A veteran's case will be 
assigned to interrupted status when:
    (1) VA determines that a suspension of services being provided is 
necessary; and
    (2) Either:
    (i) A definite date for resumption of the program is established; or
    (ii) The evidence indicates the veteran will be able to resume the 
program at some future date, which can be approximately established.


(Authority: 38 U.S.C. 3110)

    (c) Reasons for assignment to ``interrupted'' status. A veteran's 
case may be interrupted and assigned to interrupted status for reasons 
including but not limited to the following:
    (1) Veteran does not initiate or continue rehabilitation process. If 
a veteran does not begin or continue the rehabilitation process, the 
veteran's case will be interrupted and assigned to interrupted status, 
including:
    (i) A case in evaluation and planning status;
    (ii) A case in extended evaluation status;
    (iii) A case in rehabilitation to the point of employability status;
    (iv) A case in independent living program status; or
    (v) A case in employment services status.
    (2) Unsatisfactory conduct and cooperation. If a veteran's conduct 
or cooperation becomes unsatisfactory, services and assistance may be 
interrupted as determined under provisions of Sec. Sec. 21.362 and 
21.364.
    (3) Services not available. The veteran cannot continue the program 
because the necessary training and rehabilitation services are 
unavailable.
    (4) Prior to assignment to ``discontinued'' status. A veteran's case 
shall be assigned to interrupted status prior to discontinuance and 
assignment to discontinued status in all cases except as provided in 
Sec. 21.182(d) and upon the veteran's death. The purpose of assignment 
to interrupted status is to assure that all appropriate actions have 
been taken to help the veteran continue in his or her program before 
discontinuing benefits and services.
    (5) Absences. The veteran is not entitled to be placed on authorized 
absence under Sec. Sec. 21.340 through 21.350 while in interrupted 
status.


(Authority: 38 U.S.C. 3111)

    (d) Reentrance from ``interrupted'' status. (1) A veteran in 
interrupted status may be assigned to his or her prior status or other 
appropriate status, if he or she reports for entrance or reentrance into 
the prescribed program at the time and place scheduled for the 
resumption of the rehabilitation program.
    (2) If a veteran in interrupted status fails to report for entrance 
or reentrance into the program at the appointed time and place, the 
veteran's case will remain in interrupted status. The case manager will 
then determine whether there is a satisfactory reason for the veteran's 
failure to enter a new or reenter the prior program. If the evidence of 
record does not establish a satisfactory reason, the veteran's case will 
be discontinued and assigned to discontinued status.
    (e) Case management responsibility during a period of interruption. 
The case manager shall maintain contact with the veteran during 
interruption and shall arrange for appropriate medical or other services 
the veteran needs to be able to enter or reenter a rehabilitation 
program or a program of employment services.


(Authority: 38 U.S.C. 3107)

    Cross-Reference: See Sec. 21.324 Reduction or termination date.

[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987]



Sec. 21.198  ``Discontinued'' status.

    (a) Purpose. The purpose of discontinued status is to identify 
situations in which termination of all services and benefits received 
under Chapter 31 is necessary.
    (b) Placement in ``discontinued''. VA will discontinue the veteran's 
case and assign the case to discontinued status following assignment to 
interrupted status as provided in Sec. 21.197 for reasons including but 
not limited to the following:

[[Page 161]]

    (1) Veteran declines to initiate or continue rehabilitation process. 
If a veteran does not initiate or continue the rehabilitation process 
and does not furnish an acceptable reason for his or her failure to do 
so following assignment to interrupted status, the veteran's case will 
be discontinued and assigned to discontinued status. This includes:
    (i) A case in applicant status;
    (ii) A case in evaluation and planning status;
    (iii) A case in extended evaluation status;
    (iv) A case in rehabilitation to the point of employability status;
    (v) A case in independent living program status;
    (vi) A case in employment services status; or
    (vii) A case in interrupted status;
    (2) Unsatisfactory conduct and cooperation. When a veteran's conduct 
or cooperation becomes unsatisfactory, services and assistance may be 
discontinued and assigned to discontinued status as determined under 
provisions of Sec. Sec. 21.362 and 21.364.
    (3) Eligibility and entitlement. Unless the veteran desires 
employment assistance, the veteran's case will be discontinued and 
assigned to discontinued status when:
    (i) The veteran reaches the basic twelve-year termination date, and 
there is no basis for extension; or
    (ii) The veteran has used 48 months of entitlement under one or more 
VA programs, and there is no basis for extension of entitlement.
    (4) Medical and related problems. A veteran's case will be 
discontinued and assigned to discontinued status when:
    (i) The veteran will be unable to participate in a rehabilitation 
program because of a serious physical or emotional problem for an 
extended period; and
    (ii) VA medical staff are unable to estimate an approximate date by 
which the veteran will be able to begin or return to the program.
    (5) Withdrawal. Veteran voluntarily withdraws from the program.
    (6) Failure to progress. The veteran's case will be discontinued and 
assigned to discontinued status if his or her failure to progress in a 
program is due to:
    (i) Continuing lack of application by the veteran unrelated to any 
personal or other problems; or
    (ii) Inability of the veteran to benefit from rehabilitation 
services despite the best efforts of VA and the veteran.


(Authority: 38 U.S.C. 3108, 3111)

    (7) Special review of proposed discontinuance action. The Vocational 
Rehabilitation and Employment (VR&C) Officer shall review each case in 
which discontinuance is being considered for a veteran with a service-
connected disability rated 50 percent or more disabling. The VR&C 
Officer may utilize exisitng resources to assist in the review, 
including referral to the Vocational Rehabilitation Panel (VRP).


(Authority: 38 U.S.C. 3104(a)(1))

    (c) Termination of ``discontinued'' status. Except as noted in 
paragraph (c)(3) of this section assignment of the veteran's case to the 
same status from which the veteran was discontinued or to a different 
one requires that VA first find:
    (1) The reason for the discontinuance has been removed; and
    (2) VA has redetermined his or her eligibility and entitlement under 
Chapter 31.
    (3) In addition to the criteria described in paragraphs (c) (1) and 
(2) of this section a veteran placed into discontinued status as a 
result of a finding of unsatisfactory conduct or cooperation under 
Sec. Sec. 21.362 and 21.364 must also meet the requirements for 
reentrance into a rehabilitation program found in Sec. 21.364.


(Authority: 38 U.S.C. 3111)

    (d) Follow-up of a cases placed in ``discontinued'' status. VA shall 
establish appropriate procedures to follow up on cases which have been 
placed in discontinued status, except in those cases reassigned from 
applicant status. The purpose of such followup is to determine if:
    (1) The reasons for discontinuance may have been removed, and 
reconsideration of eligibility and entitlement is possible; or

[[Page 162]]

    (2) The veteran is employed, and criteria for assignment to 
rehabilitated status are met.


(Authority: 38 U.S.C. 3107)

    Cross-Reference: See Sec. 21.324 Reduction or termination dates of 
subsistence allowance.

[49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987; 53 
FR 32620, Aug. 26, 1988]

                                Supplies



Sec. 21.210  Supplies.

    (a) Purpose of furnishing supplies. Supplies are furnished to enable 
a veteran to pursue rehabilitation and achieve the goals of his or her 
program.
    (b) Definition. The term supplies includes books, tools, and other 
supplies and equipment which VA determines are necessary for the 
veteran's rehabilitation program.
    (c) Periods during which supplies may be furnished. Supplies may be 
furnished during:
    (1) Extended evaluation;
    (2) Rehabilitation to the point of employability;
    (3) Employment services; and
    (4) An independent living services program.


(Authority: 38 U.S.C. 3104(a))

    (d) Supplies precluded. Notwithstanding the provisions of paragraph 
(c) of this section, supplies may not be furnished to a veteran who has 
elected, or is in receipt of, payment at the educational assistance rate 
paid under Chapter 34.


(Authority: 38 U.S.C. 3108(a))



Sec. 21.212  General policy in furnishing supplies during periods of 
rehabilitation.

    (a) Furnishing necessary supplies during a period of rehabilitation 
services. A veteran will be furnished supplies that are necessary for a 
program of rehabilitation services. For example, a veteran training in a 
school will be furnished the supplies needed to pursue the school 
course. If additional supplies are subsequently needed to secure 
employment, they will be furnished during the period of employment 
services as provided in Sec. 21.214(d).
    (b) Determining supplies needed during a period of rehabilitation. 
Subject to the provisions of Sec. Sec. 21.210 through 21.222, VA will 
authorize only those supplies which are required:
    (1) To be used by similarly circumstanced non-disabled persons in 
the same training or employment situation;
    (2) To mitigate or compensate for the effects of the veteran's 
disability while he or she is being evaluated, trained or assisted in 
gaining employment; or
    (3) To allow the veteran to function more independently and thereby 
lessen his or her dependence on others for assistance.
    (c) When supplies may be authorized. Supplies should generally be 
authorized subsequent to the date of enrollment in training or beginning 
date of other rehabilitation services unless there are compelling 
reasons to authorize them earlier. Supplies may not be authorized 
earlier than the date the veteran's rehabilitation plan is approved by 
VA and the veteran is accepted by the facility or individual providing 
services.
    (d) Supplies needed, but not specifically required. VA may determine 
that an item, such as a calculator, while not required by the school for 
the pursuit of a particular school subject, is nevertheless necessary 
for the veteran to successfully pursue his or her program under the 
provisions of Sec. 21.156 pertaining to incidental goods and services. 
The item may be authorized if:
    (1) It is generally owned and used by students pursuing the course; 
and
    (2) Students who do not have the item would be placed at a distinct 
disadvantage in pursuing the course.
    (e) Supplies for special projects and theses. The amount of supplies 
that VA may authorize for special projects, including theses, may not 
exceed the amount generally needed by similarly circumstanced 
nonveterans in meeting course or thesis requirements.


(Authority: 38 U.S.C. 3104(a))

    (f) Responsibility for authorization of supplies. The case manager 
is responsible for the authorization of supplies, subject to 
requirements for prior approval contained in Sec. 21.258 and other

[[Page 163]]

instructions governing payment of program charges.


(Authority: 38 U.S.C. 3106(e))



Sec. 21.214  Furnishing supplies for special programs.

    (a) General. A veteran pursuing one of the following types of 
vocational rehabilitation programs is eligible for any types of supplies 
listed in Sec. 21.212. The following paragraphs clarify the 
applicability of the general provisions of Sec. 21.212 to these special 
situations.
    (b) Supplies furnished to veterans pursuing training in the home. VA 
may furnish to veterans training in the home:
    (1) Books, tools, and supplies which schools or training 
establishments that train individuals outside the home for the objective 
the veteran is pursuing at home ordinarily require all students and 
trainees to personally possess;
    (2) Supplies and equipment which are essential to the prescribed 
course of training because the veteran is pursuing the course at home. 
Equipment in this category consists of items which ordinarily are not 
required by a school or training establishment;
    (3) Special equipment, such as a vise or drafting table;
    (4) Supplies needed to enable the veteran to function more 
independently in his or her home and community.


(Authority: 38 U.S.C. 3104(a))

    (c) Supplies furnished to a veteran in farm cooperative training. 
The books and related training supplies which VA may furnish a veteran 
in farm cooperative training depend upon the type of instruction he or 
she is receiving:
    (1) When organized, group instruction is part of a veteran's course, 
VA will furnish those books and supplies which the school requires all 
students in the school portion of the course to own personally or on a 
rental basis;
    (2) When all instruction is given on the veteran's farm by an 
individual instructor, VA will furnish to a student only those textbooks 
and other supplies which would ordinarily be required by a school.


(Authority: 38 U.S.C. 3104(a)(7))

    (d) Obtaining and maintaining employment. A veteran being furnished 
employment services may receive supplies which:
    (1) The employer requires similarly circumstanced nonveterans to own 
upon begining employment to the extent that the items were not furnished 
during the period in which the veteran was training for the objective, 
or the items that were furnished for training purposes are not adequate 
for employment;
    (2) VA determines that special equipment is necessary for the 
veteran to perform his or her duties, subject to the obligation of the 
employer to make reasonable accommodation to the disabling effects of 
the veteran's condition.


(Authority: 38 U.S.C. 3104(a), 4212)

    (e) Self-employment. The supplies and services which may be 
furnished, subject to the requirements prescribed under Sec. 21.258, to 
a veteran for whom self-employment has been approved as the occupational 
objective, are generally limited to those necessary to begin operations:
    (1) Minimum stocks of materials, e.g., inventory of saleable 
merchandise or goods, expendable items required for day-to-day 
operations, and items which are consumed on the premises;
    (2) Essential equipment, including machinery, occupational fixtures, 
accessories, and appliances; and
    (3) Other incidental services such as business license fees.


(Authority: 38 U.S.C. 3104(a)(2))

    (f) Supplies and related assistance which may not be furnished for 
self-employment. VA may not authorize assistance for:
    (1) Purchase of, or part payment for, land and buildings;
    (2) Making full or part payment of leases or rentals;
    (3) Purchase or rentals of trucks, cars, or other means of 
transportation;
    (4) Stocking a farm for animal husbandry operations.


(Authority: 38 U.S.C. 3104(a)(12))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]

[[Page 164]]



Sec. 21.216  Special equipment.

    (a) General. Special equipment should be authorized as necessary to 
enable a veteran to mitigate or overcome the effects of disability in 
pursuing a rehabilitation program. The major types of special equipment 
which may be authorized include:
    (1) Equipment for educational or vocational purposes. This category 
includes items which are ordinarily used by nondisabled persons pursuing 
evaluation or training, modified to allow for use by disabled persons. 
e.g., calculators with speech capability for blinded persons.
    (2) Sensory aids and prostheses. This category includes items which 
are specifically designed to mitigate or overcome the effects of 
disability. They range from eyeglasses and hearing aids to closed-
circuit TV systems which amplify reading material for veterans with 
severe visual impairments.
    (3) Modifications to improve access. This category includes 
adaptations of environment not generally associated with education and 
training, such as adaptive equipment for automobiles or supplies 
necessary to modify a veteran's home to make either training or self-
employment possible.


(Authority: 38 U.S.C. 3104(a))

    (b) Coordination with other VA elements in securing special 
equipment. In any case in which the veteran needs special equipment and 
is eligible for such equipment under other VA programs, such as medical 
care and treatment at VA medical centers, the items will be secured 
under that program. The veteran must be found ineligible for needed 
special equipment under other programs and benefits administered by VA 
before the item may be authorized under Chapter 31.


(Authority: 38 U.S.C. 3115)



Sec. 21.218  Methods of furnishing supplies.

    (a) Supplies furnished by the school or facility. VA will make 
arrangements for the school or other facility furnishing a veteran 
training, rehabilitation assistance, or employment under Chapter 31 to 
provide supplies to the extent practicable. This method is the one most 
likely to assure that supplies are available and can be secured 
expeditiously. A facility may be considered to be furnishing supplies 
when the facility itself is the supplier, or the facility has designated 
a supplier. Prior authorization of supplies by the case manager is 
required, except for standard sets of books, tools, or supplies which 
the facility requires all trainees or employees to have.
    (b) Issuance of supplies not furnished by the facility. VA will 
issue authorized supplies directly to the veteran, if the supplies are 
not furnished by the facility providing training, rehabilitation 
services, or employment.


(Authority: 38 U.S.C. 3104(a))

    Cross-Reference: See 48 CFR part 831. Contract cost principles and 
procedures.



Sec. 21.219  Supplies consisting of clothing, magazines and periodicals, 
and items which may be personally used by the veteran.

    (a) Furnishing protective articles and clothing. Protective articles 
or apparel worn in place of ordinary clothing will be furnished at VA 
expense, when the school or training establishment requires similarly 
circumstanced nonveterans to use the articles of apparel. No other 
clothing will be supplied.
    (b) Furnishing magazines and periodicals. Appropriate past issues of 
magazines, periodicals, or reprints may be furnished in the same manner 
as text material, when relevant to the course or training.
    (c) Furnishing items which may be personally used. Musical 
instruments, cameras, or other items which could be used personally by 
the veteran may only be furnished if required by the facility to meet 
requirements for degree or course completion.


(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.220  Replacement of supplies.

    (a) Lost, stolen, misplaced or damaged supples. VA will replace 
articles which are necessary to further pursuit of the veteran's program 
and which are lost, stolen, misplaced, or damaged beyond repair through 
no fault of the veteran;

[[Page 165]]

    (1) VA will make an advancement from the Vocational Rehabilitation 
Revolving Fund to a veteran to replace articles for which VA will not 
pay, if the veteran is without funds to pay for them;
    (2) If a veteran refuses to replace an article indispensable to the 
program after VA determines that its loss or damage was his or her 
fault, the veteran's refusal may be considered as noncooperation under 
Sec. 21.364;
    (3) If the veteran's program is discontinued under provisions of 
Sec. 21.364(b), he or she will be reentered into the program only when 
he or she replaces the necessary articles.


(Authority: 38 U.S.C. 3104(a))

    (b) Personally purchased supplies. VA will not generally reimburse a 
veteran who personally buys supplies. VA may pay for the required 
supplies which a training facility or other vendor sells to a veteran, 
if the facility chooses to return to the veteran the amounts he or she 
paid, so that the charges stand as an unpaid obligation of VA to the 
facility. If the facility does not agree to such an arrangement, VA may 
still pay the veteran, if the facts and equities of the case are 
demonstrated.


(Authority: 38 U.S.C. 3115)

    (c) Supplies used in more than one part of the program. Except as 
provided in paragraph (a) of this section, VA will generally furnish any 
nonconsumable supplies only one time, even though the same supplies may 
be required for use by the veteran in another subject or in another 
quarter, semester, or school year.


(Authority: 38 U.S.C. 3104(a)(7))



Sec. 21.222  Release of, and repayment for, training and rehabilitation 
supplies.

    The value of supplies authorized by VA will be repaid under the 
provisions of this section, when the veteran fails to complete the 
program as planned.
    (a) Consumable supplies. VA will require reimbursement from a 
veteran for consumable supplies authorized, unless:
    (1) The veteran fails to complete the rehabilitation program through 
no fault of his or her own;
    (2) The employment objective of the rehabilitation plan is changed 
as a result of reevaluation by VA staff;
    (3) The total value of the supplies for which repayment is required 
is less than $100; or
    (4) The veteran dies.


(Authority: 38 U.S.C. 3104)

    (b) Nonconsumable supplies (general). (1) In addition to the 
exceptions noted in paragraph (c) of this section, VA will not require 
reimbursement from a veteran for nonconsumable supplies authorized, if:
    (i) The veteran and VA change the long-range goal of the 
rehabilitation plan and those supplies are not required for the 
veteran's pursuit of training for the new goal;
    (ii) The veteran's failure to complete the program was not his or 
her fault;
    (iii) The veteran was pursuing the program at a facility which 
recovers nonconsumable supplies from veterans through contractural 
arrangements with VA, and the veteran returned to the facility all the 
nonconsumable supplies furnished at VA expense;
    (iv) The veteran reenters the Armed Forces or is in the process of 
reentering the Armed Forces;
    (v) The veteran satisfactorily completed one-half or more of a 
noncollege degree course (or at least two terms in the case of a college 
course) for which VA furnished the supplies;
    (vi) The veteran certifies that he or she is using in current 
employment the supplies furnished during training;
    (vii) The total value of the supplies for which repayment is 
required is less than $100;
    (viii) The veteran dies;
    (ix) The veteran is furnished supplies during a period of employment 
services but loses the job through no fault of his or her own;
    (x) A veteran discontinued from an independent living services 
program is using supplies and equipment to reduce his or her dependence 
on others; or
    (xi) The veteran is declared rehabilitated.
    (2) The amount which a veteran must repay will be the lesser of the 
current

[[Page 166]]

value of the supplies, or the original cost of the supplies. VA will 
accept supplies in lieu of repayment of the value of the supplies if VA 
has authorized a change of objective.


(Authority: 38 U.S.C. 3104(a))

    (c) Training in the home and self-employment. In addition to the 
reasons for not requiring repayment or return of nonconsumable supplies 
listed in paragraph (b) of this section, VA will not require a veteran 
to pay for or return nonconsumable supplies if: (1) In the case of a 
veteran training in the home:
    (i) VA furnished such supplies to equip his or her home as a place 
of training; and
    (ii) The veteran has completed enough of his or her training program 
to be considered employable, and has been declared rehabilitated to the 
point of employability;
    (2) A veteran in a self-employment program not in the home is 
declared rehabilitated; or
    (3) The veteran dies and the Director, VR&C Service determines that 
the facts and equities of the family situation warrant waiver of all or 
a part of the requirements for repayment.


(Authority: 38 U.S.C. 3104(a)(12))

[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17708, Apr. 11, 1997]



Sec. 21.224  Prevention of abuse.

    Supplies are to be furnished under the most careful checks by the 
case manager as to what is needed by the veteran to pursue his or her 
program. Determinations of the supplies needed to enable the veteran to 
successfully pursue his or her rehabilitation program are made under the 
provisions of Sec. Sec. 21.210 through 21.222.


(Authority: 38 U.S.C 3104, 3111)

                      Medical and Related Services



Sec. 21.240  Medical treatment, care and services.

    (a) General. A Chapter 31 participant shall be furnished medical 
treatment, care and services which VA determines are necessary to 
develop, carry out and complete the veteran's rehabilitation plan. The 
provision of such services is a part of the veteran's entitlement to 
benefits and services under Chapter 31, and is limited to the period or 
periods in which the veteran is a Chapter 31 participant.


(Authority: 38 U.S.C. 3104, 3107)

    (b) Scope of services. The services which may be furnished under 
Chapter 31 include the treatment, care and services described in part 17 
of this title. In addition the following services may be authorized 
under Chapter 31 even if not included or described in part 17:
    (1) Prosthetic appliances, eyeglasses, and other corrective or 
assistive devices;
    (2) Services to a veteran's family as necessary for the effective 
rehabilitation of the veteran;
    (3) Special services (including services related to blindness and 
deafness) including:
    (i) Language training; speech and voice correction, training in 
ambulation, and one-hand typewriting;
    (ii) Orientation, adjustment, mobility and related services;
    (iii) Telecommunications, sensory and other technical aids and 
devices.
    (c) Eligibility. A veteran is eligible for the services described in 
paragraph (b) of this section during periods in which he or she is 
considered a Chapter 31 participant. These periods include:
    (1) Initial evaluation;
    (2) Extended evaluation;
    (3) Rehabilitation to the point of employability;
    (4) Independent living services program;
    (5) Employment services; and
    (6) Other periods to the extent that services are needed to begin or 
continue in any of the statutes described in paragraphs (c)(1) through 
(5) of this section. Such periods include but are not limited to 
services needed to facilitate reentry into rehabilitation following:
    (i) Interruption; or
    (ii) Discontinuance because of illness or injury.


(Authority: 38 U.S.C. 3104)

    Cross-Reference: See Sec. 17.48(g). Participating in a 
rehabilitation program under Chapter 31.

[[Page 167]]



Sec. 21.242  Resources for provision of treatment, care and services.

    (a) General. VA medical centers are the primary resources for the 
provision of medical treatment, care and services for Chapter 31 
participants which may be authorized under the provisions of Sec. 
21.240. The availability of necessary services in VA facilities shall be 
ascertained in each case.


(Authority: 38 U.S.C. 3115)

    (b) Hospital care and medical service. Hospital care and medical 
services provided under Chapter 31 shall only be furnished in facilities 
over which VA has direct jurisdiction, except as authorized on a 
contract or fee basis under the provisions of part 17 of this title.


(Authority: 38 U.S.C. 3115(b))

    Cross-References: See Sec. 17.30(l). Hospital care. Sec. 17.30(m) 
Medical services.

                           Employment Services



Sec. 21.250  Overview of employment services.

    (a) General. Employment services shall be provided if:
    (1) Eligibility for employment services exists;
    (2) The employment services which are needed have been identified; 
and
    (3) The services which have been identified are incorporated in the 
veteran's IWRP (Individualized Written Rehabilitation Plan) or IEAP 
(Individualized Employment Assistance Plan).


(Authority: 38 U.S.C. 3107, 3117)

    (b) Definitions. (1) The term program (period) of employment 
services includes the counseling, medical, social, and other placement 
and postplacement services provided to a veteran under 38 U.S.C. Chapter 
31 to assist the veteran in obtaining or maintaining suitable 
employment. The term program of employment services is used only if the 
veteran's eligibility under Chapter 31 is limited to employment 
services.
    (2) The term job development means a comprehensive professional 
service to assist the individual veteran to actually obtain a suitable 
job, and not simply the solicitation of jobs on behalf of the veteran. 
Continuing and mutually beneficial relationships with employers should 
be established by VA staff through referral of suitable employees and 
supportive services (e.g., adjustment counseling and job modification). 
Job development activities by VA staff are intended to provide disabled 
workers with a chance for suitable employment with cooperating 
employers.
    (3) The term employable means the veteran is able to secure and 
maintain employment in the competitive labor market or in a sheltered 
workshop or other special situation at the minimum wage.


(Authority: 38 U.S.C. 3101, 3106, 3116, 3117)

    (c) Determining eligibility for, and the extent of, employment 
services.
    (1) A veteran's eligibility for employment services shall be 
determined under the provisions of Sec. 21.47;
    (2) The duration of the period of employment services is determined 
under provisions of Sec. 21.73;
    (3) An IEAP (Individualized Employment Assistance Plan) shall be 
prepared under provisions of Sec. 21.88;
    (4) A veteran shall be placed in and removed from ``Employment 
Assistance Status'' under provisions of Sec. 21.194.


(Authority: 38 U.S.C. 3101, 3117)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 54 
FR 21216, May 17, 1989]



Sec. 21.252  Job development and placement services.

    (a) General. Job development and placement services may include:
    (1) Direct placement assistance by VA;
    (2) Utilization of the job development and placement services of:
    (i) DVOP (Disabled Veterans Outreach Program) specialists;
    (ii) Programs authorized under the Rehabilitation Act of 1973, as 
amended;
    (iii) The State Employment Services and the Veterans' Employment and 
Training Service of the United States Department of Labor;
    (iv) The Office of Personnel Management; and
    (v) The services of any other public, or nonprofit organization 
having placement services available; and

[[Page 168]]

    (vi) Any for-profit agency in a case in which it has been determined 
that comparable services are not available through public and nonprofit 
agencies and comparable services cannot be provided cost-effectively by 
the public and nonprofit agencies listed in this paragraph.


(Authority: 38 U.S.C. 3117(a)(2))

    (b) Promotion of employment and training opportunities. As funding 
permits, VA employees engaged in the administration of Chapter 31 will 
promote the establishment of employment, training, and related 
opportunities to accomplish the purposes described in Sec. 21.1.


(Authority: 38 U.S.C. 3101)

    (c) Advocacy responsibility. VA shall take reasonable steps to 
ensure that a veteran being provided employment services receives the 
benefit of any applicable provision of law or regulation providing for 
special consideration or emphasis or preference of the veteran in 
employment or training, especially programs and activities identified in 
the preceding paragraphs of this section.


(Authority: 38 U.S.C. 523)

    (d) Interagency coordination. VA employees providing assistance to 
Chapter 31 participants shall coordinate their job development, 
placement, promotional, and advocacy activities with similar or related 
activities of:
    (1) The Department of Labor and State employment security agencies 
as provided by written agreement or other arrangement;
    (2) The State approving agencies:
    (3) Other public, for-profit and nonprofit agencies providing 
employment and related services.


(Authority: 38 U.S.C. 3116, 3117, Pub. L. 100-689)

[49 FR 40814, Oct. 18, 1984, as amended at 55 FR 42187, Oct. 18, 1990; 
62 FR 17708, Apr. 11, 1997]



Sec. 21.254  Supportive services.

    (a) General. Supportive services which may be provided during a 
period or program of employment services include a broad range of 
medical treatment, care and services, supplies, license and other fees, 
special services, including services to the blind and deaf, 
transportation assistance, services to the veteran's family, and other 
appropriate services, subject to the limitations provided in VA 
regulations governing the provisions of these services under Chapter 31.
    (b) Exclusions. The following benefits may not be provided to the 
veteran by VA during a period or program of employment services:
    (1) Subsistence allowance, or payment of an allowance at the 
educational assistance rate paid under Chapter 30 for similar training;
    (2) Education and training services, other than brief courses, such 
as review courses necessary for licensure;
    (3) Revolving Fund Loan; and
    (4) Work-study allowance.


(Authority: 38 U.S.C. 3104(a), 3108(f))

    (c) Disabled veterans trained for self-employment under a State 
rehabilitation agency. A service-disabled veteran who has trained for 
self-employment under the auspices of a State rehabilitation agency may 
be provided supplemental equipment and initial stocks and supplies 
similar to the materials supplied to the most severely disabled veterans 
in self-employment programs under Chapter 31, if the following 
conditions are met:
    (1) The veteran is eligible for employment assistance under 
provisions of Sec. 21.47;
    (2) An official of the State rehabilitation program with 
responsibility for administration of self-employment programs certifies 
that:
    (i) The veteran has successfully completed training for a self-
employment program;
    (ii) The assistance needed is not available through the State 
rehabilitation program, or other non-VA sources;
    (iii) The assistance requested is a part of the veteran's IWRP 
(Individualized Written Rehabilitation Plan) developed by the State 
rehabilitation program;
    (3) The requirements of Sec. 21.258 pertaining to self-employment 
for the most severely disabled veterans are met; and

[[Page 169]]

    (4) The Director, VR&E Service, approves the request, if the cost of 
supplies is more than $2,500. The approval of the Director is required 
prior to authorization of supplies.


(Authority: 38 U.S.C. 3117(b))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992; 62 FR 17709, Apr. 11, 1997]



Sec. 21.256  Incentives for employers.

    (a) General. VA may make payments to employers to enable a veteran 
who has been rehabilitated to employability to begin and maintain 
employment or to provide on-job training. The purpose of such payment is 
to facilitate the placement of veterans who are generally qualified for 
employment but may lack some specific training or work experience which 
the employer requires or who are difficult to place due to their 
disability. The specific conditions which must be met before this option 
may be considered are contained in paragraphs (b) through (d) of this 
section.
    (b) Requirements for payments to employers. Payments may be made to 
employers to provide on-job training or to begin and maintain employment 
if all of the following conditions are met:
    (1) The veteran is in need of an on-job training situation or is 
generally qualified for employment but such on-job situation or 
employment opportunity is not otherwise available despite repeated and 
intensive efforts on the part of VA and the veteran to secure such 
opportunities. These conditions are also considered to be met when:
    (i) There are few employers within commuting distance of the 
veteran's home who can provide a training or employment opportunity 
consistent with the veteran's plan; and
    (ii) The veteran reasonably could not be required to seek on-job or 
employment opportunities in other areas due to the effects of his or her 
disability, family situation, or other pertinent factors; and
    (iii) The available local employers will only provide a training or 
employment opportunity if VA agrees to reimburse for direct expenses to 
the degree permitted under this section.
    (2) The training establishment or employer is in compliance with 
provisions of Sec. 21.292 (a) and (b), pertaining to the approval of 
courses and facilities.
    (3) VA entered into an agreement with the employer in writing prior 
to the beginning of the period of on-job training or employment, whereby 
the employer will be reimbursed for direct expenses approved under 
provisions of paragraph (c) of this section.
    (4) The on-job training program or employment of the veteran does 
not displace a current employee or prevent the recall of a laid-off 
employee.
    (c) Limitation on payment. Payments to the employer may be made only 
for the employer's direct expenses as a result of hiring the veteran and 
generally may not exceed one-half of the wage paid to other employees in 
the same or similar job. Direct expenses include:
    (1) Instruction;
    (2) Instructional aids;
    (3) Training materials and supplies provided to the veteran;
    (4) Minor modification of equipment to the special limitations of 
the veteran;
    (5) Significant loss of productivity of the employer caused by using 
the veteran as opposed to a nondisabled employee.
    (d) Duration. The period for which the employer is paid may not 
exceed the period necessary to accomplish on-job training or to begin 
and maintain employment at the journeyman level for at least 2 months. 
The period for which payment may be authorized may not exceed 9 months, 
unless the VR&C Officer, approves a longer period.
    (e) Benefits and services. (1) An eligible veteran on whose behalf 
payments are made to the employer shall be provided all other Chapter 31 
benefits and services furnished to other veterans receiving employment 
services. A veteran may not be paid a subsistence allowance during the 
period in which job training or work experience is furnished under this 
section.
    (2) Notwithstanding any other provisions of these regulations, if 
the program in which the veteran is participating meets the criteria for 
approval of on-job training under chapter 30, the veteran may be paid at 
educational assistance rates provided for this type of

[[Page 170]]

training under chapter 30 to the extent that he or she has remaining 
eligibility and entitlement under chapter 30 and has elected to receive 
a subsistence allowance in accordance with Sec. 21.7136.


(Authority: 38 U.S.C. 3108(f), 3116(b))

    (f) Non-duplication. VA will not make payments under the provisions 
of this section to an employer receiving payments from any other program 
for the same training or employment expenses.


(Authority: 38 U.S.C. 3116(b))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4283, Jan. 
30, 1989; 57 FR 57108, Dec. 3, 1992; 62 FR 17709, Apr. 11, 1997]



Sec. 21.257  Self-employment.

    (a) General. Vocational rehabilitation will generally be found to 
have been accomplished by the veteran when he or she achieves suitable 
employment in the objective selected, in an existing business, agency or 
organization in the public or private sector. Rehabilitation of the 
veteran may be achieved through self-employment in a small business, if 
the veteran's access to the normal channels for suitable employment in 
the puplic or private sector is limited because of his or her disability 
or other circumstances in the veteran's situation warrant consideration 
of self-employment as an additional option.
    (b) Self-employment plan. VA staff will conduct a comprehensive 
survey and analysis of the feasibility of self-employment prior to 
authorization of a rehabilitation plan leading to self-employment. The 
analysis and self-employment plan developed on the basis of such 
analysis shall be made a part of the veteran's Chapter 31 record. The 
survey and plan shall include:
    (1) An analysis of the economic viability of the proposed small 
business plan;
    (2) A cost analysis which specifies the amount and type of 
assistance, if any, which VA would be committed to furnish;
    (3) Provision for development of a market for the veteran's services 
during the period of rehabilitation to the point of employability, and/
or employment services;
    (4) A suitable occupational objective in which employment can 
normally be secured in the public or private sector;
    (5) Training necessary for the operation of a successful small 
business;
    (6) Availability of non-VA financing, including the veteran's 
financial resources, local banks and other sources;
    (7) Coordination with the Small Business Administration to secure 
special consideration under section 8 of the Small Business Act, as 
amended;
    (8) The location of the site selected for the business and the cost 
of the site, if any.


(Authority: 38 U.S.C. 3104(a)(12))



Sec. 21.258  Special assistance for veterans in self-employment.

    (a) General. A veteran in a self-employment program is eligible for 
certain special assistance in addition to the services for which 
veterans in a vocational rehabilitation program are generally eligible 
under the provisions of Sec. 21.252. A veteran may be provided the 
assistance described under Sec. 21.214 to the extent of his or her 
eligibility for such services as determined under paragraphs (b) and (c) 
of this section and Sec. 21.254(c).


(Authority: 38 U.S.C. 3116, 3117)

    (b) Special services for the most severely disabled veterans. 
Special services listed in Sec. 21.214(e) shall be provided as 
necessary for the most severely disabled veterans. The term most 
severely disabled veteran means a veteran who has been determined to 
have a serious employment handicap and limitations on employability 
arising from the effects of disability (service-connected and 
nonservice-connected) which necessitates selection of self-employment as 
the veteran's vocational goal. This category includes veterans 
requiring:
    (1) Homebound training and self-employment; or
    (2) Self-employment for other reasons even though the veteran is 
able to pursue training on other than a homebound basis, e.g., lack of 
suitable employment opportunities in the area.


(Authority: 38 U.S.C. 3104(a)(12))

    (c) Special services for other veterans. Special services described 
in Sec. 21.214(e)

[[Page 171]]

may be furnished to a veteran with a serious employment handicap if the 
veteran also meets the following conditions:
    (1) Self-employment is clearly shown to be the soundest method of 
achieving rehabilitation; or
    (2) Self-employment is selected as an alternative to retaining the 
veteran in another occupation, and the cost of a self-employment program 
will not exceed the cost of retraining in another occupation.
    (d) Assisting a veteran with an employment handicap to become self-
employed. A veteran with an employment handicap may not be furnished any 
of the special services described in Sec. 21.214(e). However, if it is 
determined that consideration of self-employment is warranted, VA may 
provide:
    (1) Incidental training in the management of a small business;
    (2) License or other fees required for employment and self-
employment; and
    (3) The tools and supplies which would ordinarily be required for 
the veteran to begin employment in the field in which the veteran has 
trained.


(Authority: 38 U.S.C. 3104(a)(12))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 55 
FR 25975, June 26, 1990; 55 FR 28511, July 11, 1990]

                      Monetary Assistance Services



Sec. 21.260  Subsistence allowance.

    (a) General. A veteran participating in a rehabilitation program 
under 38 U.S.C. Chapter 31 will receive a monthly subsistence allowance 
at the rates in paragraph (b) of this section, unless the veteran elects 
to receive payment at the rate of monthly educational assistance 
allowance payable under 38 U.S.C. Chapter 30 for the veteran's type of 
training. See Sec. 21.264 for election of payment at the Chapter 30 
rate and Sec. Sec. 21.7136, 21.7137, and 21.7138 to determine the 
applicable Chapter 30 rate.


(Authority: 38 U.S.C. 3108(a), 3108(f))

    (b) Rate of payment. VA pays subsistence allowance at the rates 
stated in the following tables:
    (1) Subsistence allowance is paid at the following rates effective 
October 1, 1994, and before November 2, 1994:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional: \1\
    Full-time...............................................      $374.93      $465.08      $548.05       $39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
Nonpay or nominal pay on-job training in a Federal, State,
 or local agency; training in the home; vocational course in
 a rehabilitation facility or sheltered workshop;
 independent instructor:
    Full-time only..........................................       374.93       465.08       548.05        39.95
Nonpay or nominal pay work experience in a Federal, State,
 or local agency:
    Full-time...............................................       374.93       465.08       548.05        39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
Farm cooperative, apprenticeship, or other on-job training:
 \2\
    Full-time only..........................................       327.81       396.44       456.88        29.71
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       374.93       465.08       548.05        39.45
    OJT greater than \1/2\ time.............................       327.81       396.44       456.88        29.71
Non-farm cooperative (Full-time only):
    Institutional...........................................       374.93       465.08       548.05        39.95
    On-job..................................................       327.81       396.44       456.88        29.71
Improvement of rehabilitation potential:
    Full-time only..........................................       374.93       465.08       548.05        39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
    \1/4\ time \3\..........................................        94.24       116.78       137.27       10.24
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.

[[Page 172]]

 
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (2) Subsistence allowance is paid at the following rates effective 
November 2, 1994, and before October 1, 1995:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional: \1\
    Full-time...............................................      $374.93      $465.08      $548.05       $39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
Nonpay or nominal pay on-job training in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency; training in the home; vocational course in a
 rehabilitation facility or sheltered workshop; independent
 instructor:
    Full-time only..........................................       374.93       465.08       548.05        39.95
Nonpay or nominal pay work experience in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency:
    Full-time...............................................       374.93       465.08       548.05        39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
Farm cooperative, apprenticeship, or other on-job training:
 \2\
    Full-time only..........................................       327.81       396.44       456.88        29.71
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       374.93       465.08       548.05        39.45
    OJT greater than \1/2\ time.............................       327.81       396.44       456.88        29.71
Non-farm cooperative (Full-time only):
    Institutional...........................................       374.93       465.08       548.05        39.95
    On-job..................................................       327.81       396.44       456.88        29.71
Improvement of rehabilitation potential:
    Full-time only..........................................       374.93       465.08       548.05        39.95
    \3/4\ time..............................................       281.71       349.32       409.76        30.73
    \1/2\ time..............................................       188.49       233.56       274.54        20.49
    \1/4\ time \3\..........................................        94.24       116.78       137.27       10.24
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (3) The following table states the monthly rates of subsistence 
allowance payable for participation in a rehabilitation program under 38 
U.S.C. Chapter 31 that occurs after September 30, 1995, and before 
October 1, 1996:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional:\1\
    Full-time...............................................      $385.80      $478.57      $563.94       $41.11
    \3/4\ time..............................................       289.88       359.45       421.64        31.62
    \1/2\ time..............................................       193.96       240.33       282.50        21.08
Nonpay or nominal pay on-job training in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency; training in the home; vocational course in a
 rehabilitation facility or sheltered workshop; independent
 instructor:
    Full-time only..........................................       385.80       478.57       563.94        41.11
Nonpay or nominal pay work experience in a facility of a
 Federal, State, local, or Indian tribe agency:
    Full-time...............................................       385.80       478.57       563.94        41.11
    \3/4\ time..............................................       289.88       359.45       421.64        31.62
    \1/2\ time..............................................       193.96       240.33       282.50        21.08
Farm cooperative, apprenticeship, or other on-job training
 (OJT): \2\
    Full-time only..........................................       337.32       407.94       470.13        30.57
Combination of institutional and OJT (Full-time only):

[[Page 173]]

 
    Institutional greater than \1/2\ time...................       385.80       478.57       563.94        41.11
    OJT greater than \1/2\ time \2\.........................       337.32       407.94       470.13        30.57
Non-farm cooperative (Full-time only):
    Institutional...........................................       385.80       478.57       563.94        41.11
    On-job \2\..............................................       337.32       407.94       470.13        30.57
Improvement of rehabilitation potential:
    Full-time only..........................................       385.80       478.57       563.94        41.11
    \3/4\ time..............................................       289.88       359.45       421.64        31.62
    \1/2\ time..............................................       193.96       240.33       282.50        21.08
    \1/4\ time \3\..........................................        96.97       120.17       141.25       10.54
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (4) The following table states the monthly rates of subsistence 
allowance payable for participation in a rehabilitation program under 38 
U.S.C. Chapter 31 that occurs after September 30, 1996, and before 
October 1, 1997:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional: \1\
    Full-time...............................................      $396.22      $491.49      $579.17       $42.22
     \3/4\time..............................................       297.71       369.16       433.02        32.47
     \1/2\ time.............................................       199.20       246.82       290.13        21.65
Nonpay or nominal pay on-job training in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency; training in the home; vocational course in a
 rehabilitation facility or sheltered workshop; independent
 instructor:
    Full-time only..........................................       396.22       491.49       579.17        42.22
Nonpay or nominal pay work experience in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency:
    Full-time...............................................       396.22       491.49       579.17        42.22
     \3/4\ time.............................................       297.71       369.16       433.02        32.47
     \1/2\ time.............................................       199.20       246.82       290.13        21.65
Farm cooperative, apprenticeship, or other on-job training
 (OJT) \2\
    Full-time only..........................................       346.43       418.95       482.82        31.40
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       396.22       491.49       579.17        42.22
    OJT greater than \1/2\ time \2\.........................       346.43       418.95       482.82        31.40
Non-farm cooperative (Full-time only):
    Institutional...........................................       396.22       491.49       579.17        42.22
    On-job \2\..............................................       346.43       418.95       482.82        31.40
Improvement of rehabilitation potential:
    Full-time only..........................................       396.22       491.49       579.17        42.22
     \3/4\ time.............................................       297.71       369.16       433.02        32.47
     \1/2\ time.............................................       199.20       246.82       290.13        21.65
     \1/4\ time \3\.........................................        99.59       123.41       145.06       10.82
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (5) The following table states the monthly rates of subsistence 
allowance payable for participation in a rehabilitation program under 38 
U.S.C. Chapter 31 that occurs after September 30, 1997, and before 
November 1, 1998:

[[Page 174]]



----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional: \1\
    Full-time...............................................      $407.31      $505.25      $595.39       $43.40
    \3/4\ time..............................................       306.05       379.50       445.14        33.38
    \1/2\ time..............................................       204.78       253.73       298.25        22.26
Nonpay or nominal pay on-job training in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency; training in the home; vocational course in a
 rehabilitation facility or sheltered workshop; independent
 instructor:
    Full-time only..........................................       407.31       505.25       595.39        43.40
Nonpay or nominal pay work experience in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency:
    Full-time...............................................       407.31       505.25       595.39        43.40
    \3/4\ time..............................................       306.05       379.50       445.14        33.38
    \1/2\ time..............................................       204.78       253.73       298.25        22.26
Farm cooperative, apprenticeship, or other on-job training
 (OJT): \2\
    Full-time only..........................................       356.13       430.68       496.34        32.28
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       407.31       505.25       595.39        43.40
    OJT greater than \1/2\ time \2\.........................       356.13       430.68       496.34        32.28
Non-farm cooperative (Full-time only):
    Institutional...........................................       407.31       505.25       595.39        43.40
    On-job \2\..............................................       356.13       430.68       496.34        32.28
Improvement of rehabilitation potential:
    Full-time only..........................................       407.31       505.25       595.39        43.40
    \3/4\ time..............................................       306.05       379.50       445.14        33.38
    \1/2\ time..............................................       204.78       253.73       298.25        22.26
    \1/4\ time \3\..........................................       102.38       126.87       148.09       11.12
----------------------------------------------------------------------------------------------------------------
\1\For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (6) The following table states the monthly rates of subsistence 
allowance payable for participation in a rehabilitation program under 38 
U.S.C. Chapter 31 that occurs after September 30, 1998, and before 
October 1, 1999:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional: \1\
    Full-time...............................................      $413.83      $513.33      $604.92       $44.09
    \3/4\ time..............................................       310.95       385.57       452.26        33.91
    \1/2\ time..............................................       208.06       257.79       303.02        22.62
Nonpay or nominal pay on-job training in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency; training in the home; vocational course in a
 rehabilitation facility or sheltered workshop; independent
 instructor:
    Full-time only..........................................       413.83       513.33       604.92        44.09
Nonpay or nominal pay work experience in a facility of a
 Federal, State, local, or federally recognized Indian tribe
 agency:
    Full-time...............................................       413.83       513.33       604.92        44.09
    \3/4\ time..............................................       310.95       385.57       452.26        33.91
    \1/2\ time..............................................       208.06       257.79       303.02        22.62
Farm cooperative, apprenticeship, or other on-job training
 (OJT): \2\
    Full-time only..........................................       361.83       437.57       504.28        32.80
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       413.83       513.33       604.92        44.09
    OJT greater than \1/2\ time \2\.........................       361.83       437.57       504.28        32.80
Non-farm cooperative (Full-time only):
    Institutional...........................................       413.83       513.33       604.92        44.09
    On-job \2\..............................................       361.83       437.57       504.28        32.80
Improvement of rehabilitation potential:
    Full-time only..........................................       413.83       513.33       604.92        44.09
    \3/4\ time..............................................       310.95       385.57       452.26        33.91
    \1/2\ time..............................................       208.06       257.79       303.02        22.62

[[Page 175]]

 
    \1/4\ time \3\..........................................       104.02       128.90       151.51       11.30
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.

    (7) The following table states the monthly rates of subsistence 
allowance payable for participation in a rehabilitation program under 38 
U.S.C. Chapter 31 that occurs after September 30, 1999, and before 
October 1, 2000:

----------------------------------------------------------------------------------------------------------------
                                                                                                      Additional
                                                                                                      amount for
                       Type of program                             No          One          Two          each
                                                               dependents   dependent    dependents   dependent
                                                                                                       over two
----------------------------------------------------------------------------------------------------------------
Institutional:\1\
    Full-time...............................................      $420.45      $521.54      $614.60       $44.80
    \3/4\ time..............................................       315.93       391.74       459.50        34.45
    \1/2\ time..............................................       211.39       261.91       307.87        22.98
Nonpay or nominal pay on-job training in a Federal, State,
 local, or federally recognized Indian tribe agency;
 training in the home; vocational course in a rehabilitation
 facility or sheltered workshop; independent instructor;
 institutional non-farm cooperative:
    Full-time only..........................................       420.45       521.54       614.60        44.80
Nonpay or nominal pay work experience in a Federal, State,
 local, or federally recognized Indian tribe agency:
    Full-time...............................................       420.45       521.54       614.60        44.80
    \3/4\ time..............................................       315.93       391.74       459.50        34.45
    \1/2\ time..............................................       211.39       261.91       307.87        22.98
Farm cooperative, apprenticeship, or other on-job training
 (OJT):\2\
    Full-time only..........................................       367.62       444.57       512.35        33.32
Combination of institutional and OJT (Full-time only):
    Institutional greater than \1/2\ time...................       420.45       521.54       614.60        44.80
    OJT greater than \1/2\ time\2\..........................       367.62       444.57       512.35        33.32
Non-farm cooperative (Full-time only):
    Institutional...........................................       420.45       521.54       614.60        44.80
    On-job \2\..............................................       367.62       444.57       512.35        33.32
Improvement of rehabilitation potential:
    Full-time...............................................       420.45       521.54      $614.60       $44.80
    \3/4\ time..............................................       315.93       391.74       459.50        34.45
    \1/2\ time..............................................       211.39       261.91       307.87        22.98
    \1/4\ time \3\..........................................       105.98       130.96       153.93       11.48
----------------------------------------------------------------------------------------------------------------
\1\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 through 21.4275.
\2\ For on-job training, subsistence allowance may not exceed the difference between the monthly training wage,
  not including overtime, and the entrance journeyman wage for the veteran's objective.
\3\ The quarter-time rate may be paid only during extended evaluation.



(Authority: 38 U.S.C. 3108, 3115(a)(1); Pub. L. 103-446)

    (c) Subsistence allowance precluded. A veteran may not receive a 
subsistence allowance when VA is providing the veteran only the 
following services:
    (1) Initial evaluation;
    (2) Placement and post-placement services under 38 U.S.C. 3105(b); 
or
    (3) Counseling.


(Authority: 38 U.S.C. 3108 (a)(1) and (a)(3))

    (d) Dependents. The term dependent means a spouse, child or 
dependent parent who meets the definition of relationship specified in 
Sec. Sec. 3.50, 3.51, 3.57 or 3.59 of this chapter.


(Authority: 38 U.S.C. 3108(b))

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 9955, Mar. 24, 1986; 52 
FR 42113, Nov. 3, 1987; 54 FR 4283, Jan. 30, 1989; 56 FR 7567, Feb. 25, 
1991; 60 FR 4561, Jan. 24, 1995; 65 FR 51764, Aug. 25, 2000; 65 FR 
60724, Oct. 12, 2000]

[[Page 176]]



Sec. 21.262  Procurement and reimbursement of cost for training and 
rehabilitation services, supplies, or facilities.

    (a) General. Whenever services, supplies and facilities from source 
outside VA are required by any of these regulations, they shall be 
provided through contract, agreement of other cooperative arrangement 
between VA and the vendor.


(Authority: 38 U.S.C. 3115(b))

    (b) VA Acquisition Regulations. Payments of charges for training and 
rehabilition services, supplies, or facilities, authorized under Chapter 
31 are subject to the provisions of applicable VA Acquisition 
Regulations especially 48 CFR part 831 and subpart 871.2.


(Authority: 38 U.S.C. 3115(a))



Sec. 21.264  Election of payment at the 38 U.S.C. chapter 30 educational 
assistance rate.

    (a) Eligibility. A veteran who applies for, and is found entitled to 
training or education under Chapter 31, may elect to receive payment at 
the educational allowance rate and other assistance furnished under 
Chapter 30, for similar training in lieu of a subsistence allowance, 
provided the following criteria are met:
    (1) The veteran has remaining eligibility for, and entitlement to 
educational assistance under Chapter 30;
    (2) The veteran enrolls in a program of education or training 
approved for benefits under Chapter 30;
    (3) The program of education is part of an IWRP (Individualized 
Written Rehabilitation Plan) approved by VA.


(Authority: 38 U.S.C. 3015, 3022, 3108(f))

    (b) Reelection of subsistence allowance. Reelection of payment of 
benefits at the Chapter 31 subsistence allowance rate may be made only 
after completion of a term, quarter, semester, or other period of 
instruction unless:
    (1) Chapter 30 eligibility or entitlement ends earlier;
    (2) Failure to approve immediate reelection would prevent the 
veteran from continuing in the rehabilitation program.


(Authority: 38 U.S.C. 3015, 3022, 3108(f))

    (c) Services precluded. A veteran entitled to vocational 
rehabilitation training or education who elects payment at the 
educational assistance rate payable under Chapter 30 shall be provided 
the same training and rehabilitation services as other veterans under 
Chapter 31, but may not be provided:
    (1) Subsistence allowances;
    (2) Loans from the revolving fund loan;
    (3) Payment of costs for:
    (i) Vocational and other training services;
    (ii) Supplies; or
    (iii) Individualized tutorial assistance.


(Authority: 38 U.S.C. 3015, 3022, 3108(f))

    (d) Chapter 30 provisions applicable. A veteran who has elected 
payment at the Chapter 30 educational assistance rate must meet the same 
terms and conditions as other veterans pursuing similar training under 
these programs.


(Authority: 38 U.S.C. 3015, 3022, 3108(f))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.266  Payment of subsistence allowance under special conditions.

    (a) Hospitalized veteran or serviceperson. A veteran pursuing a VA 
rehabilitation program under Chapter 31 while hospitalized in a VA 
medical center or in any other hospital at VA expense may receive the 
subsistence allowance otherwise payable. The subsistence allowance will 
be paid at the rates specified in Sec. 21.260, except:
    (1) The amount of subsistence allowance or the allowance provided 
under Sec. 21.264 that may be paid to a veteran pursuing a 
rehabilitation program for any month for which the veteran receives 
compensation at the rate prescribed in Sec. 3.401(h) of this title, as 
the result of hospital treatment (not including post-hospital 
convalescence) or observation at the expense of VA may

[[Page 177]]

not exceed, when added to any compensation to which such veteran is 
entitled for the month, an amount equal to the greater of:
    (i) The sum of: (A) the amount of monthly subsistence of the 
allowance payable under Sec. 21.264, and (B) the amount of monthly 
disability compensation that would be paid to the veteran if he or she 
was not receiving compensation at the temporary 100 percent rate as the 
result of such hospital treatment or observation, or
    (ii) The amount of monthly disability compensation payable under 
Sec. 3.401(h) of this title.
    (2) A veteran pursuing a rehabilitation program while in post 
hospital convalescence (Sec. 3.401(h)) will be paid the regular rate of 
subsistence allowance.
    (3) A serviceperson pursuing a rehabilitation program under Chapter 
31 will not receive a subsistence allowance if he or she is hospitalized 
in a medical facility under the jurisdiction of the Secretary pending 
final discharge from the armed forces.


(Authority: 38 U.S.C. 3108(h))

    (b) Specialized rehabilitation facility--(1) A veteran in a 
specialized rehabilitation facility will be paid the regular rate of 
subsistence allowance at the institutional rate. VA may pay the cost of 
room and board in lieu of subsistence allowance when:
    (i) The specialized rehabilitation facility requires that similarly 
circumstanced persons pay the same charges for room and board, and
    (ii) The case manager finds and the veteran agrees that it is to the 
veteran's advantage for VA to pay the cost of room and board.
    (2) Even though VA pays the cost of room and board, the veteran will 
be paid that portion of subsistence allowance otherwise payable for 
dependents.


(Authority: 38 U.S.C. 3108(e))

    (c) Non-pay work experience or training in a Federal agency. A 
veteran in an on-job program or being provided work experience in a 
Federal agency at no or nominal pay shall receive subsistence allowance 
at the institutional rate.


(Authority: 38 U.S.C. 3108(c))

    (d) Extended evaluation and independent living program. A veteran in 
a program of extended evaluation or independent living service program 
shall be paid subsistence allowance for full or part-time participation 
at the rate specified for institutional training in Sec. 21.260. If an 
extended evaluation or independent living program is pursued on a less 
than a quarter-time basis, as measured under Sec. 21.310(d), VA will 
only pay established charges for services furnished.


(Authority: 38 U.S.C. 3108(h))

    (e) On-job training. A veteran in an on-job training program will be 
paid subsistence allowance at the rate provided under Sec. 21.260(b), 
except that subsistence allowance may not exceed the difference between 
the monthly training wage, exclusive of overtime, and the entrance 
journeyman wage for the veteran's objective.


(Authority: 38 U.S.C. 3108(c))



Sec. 21.268  Employment adjustment allowance.

    (a) General. A veteran who completes a period of rehabilitation and 
reaches the point of employability will be paid an employment adjustment 
allowance for a period of two months at the full-time subsistence 
allowance rate for the type of program the veteran was last pursuing. 
(See Sec. 21.190(d))


(Authority: 38 U.S.C. 3108(a))

    (b) Reelection of subsistence allowance. A veteran who has elected 
payment at the Chapter 30 educational assistance allowance rate may be 
paid an employment adjustment allowance only if he or she reelects 
subsistence allowance to become effective no later than the day 
following completion of the period of rehabilitation to the point of 
employability.


(Authority: 38 U.S.C. 3108(f))

    (c) Special programs. An employment adjustment allowance will be 
paid at the institutional rate of subsistence allowance for veterans in 
any of the following programs:
    (1) On-job training at no or nominal pay in a Federal agency;

[[Page 178]]

    (2) Training in the home program;
    (3) Independent instructor program;
    (4) Cooperative program; or
    (5) Self-employment program.
    (d) Combination program. A veteran who has pursued a combination 
program will be paid an employment adjustment allowance at the full-time 
rate for the type of training the veteran was actually pursuing at the 
completion of the period of rehabilitation to the point of 
employability.
    (e) Subsequent payments of employment adjustment allowance. If a 
veteran has ever received an employment adjustment allowance following 
rehabilitation to the point of employability, he or she may, 
nevertheless, receive it again when completing an additional 
rehabilitation program to the point of employability if:
    (1) The prior determination of rehabilitation to the point of 
employability is set aside; and
    (2) The veteran is reinducted into a new vocational rehabilitation 
program as provided in Sec. 21.282.
    (f) Employment adjustment allowance not charged against entitlement. 
An employment adjustment allowance will not be charged against the 
veteran's basic entitlement.


(Authority: 38 U.S.C. 3108(a))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.270  Payment of subsistence allowance during leave and between 
periods of instruction.

    (a) Payment during leave. VA will pay an eligible veteran a 
subsistence allowance during any period of approved leave including a 
veteran:
    (1) Receiving medical or rehabilitation services on an outpatient 
basis at a VA medical center, and who provides his or her own room and 
board;
    (2) Receiving service department retirement or retained pay while 
not on active duty;
    (3) Hospitalized at a VA medical center while on approved leave. If 
the veteran becomes eligible for payment of disability compensation at 
the temporary 100 percent rate, under Sec. 3.401(h) of this title due 
to hospitalization, payment will be made under provisions of Sec. 
21.266(a).


(Authority: 38 U.S.C. 3110)

    (b) Payment for intervals between periods of instruction. 
Subsistence allowance will paid to a veteran during the following 
periods unless the case manager and the veteran jointly determine that 
such payment is not in the veteran's interest:
    (1) A period between consecutive terms within an enrollment period 
that does not exceed 1 full calendar month;
    (2) A period between consecutive school terms, when the veteran, as 
part of his or her approved program of vocational rehabilitation, 
transfers from one educational institution to another for the purpose of 
enrolling in, and pursuing, the same objective at the second 
institution, provided the period does not exceed 30 days;
    (3) A period which does not exceed 30 days, between a semester, 
term, or quarter, when the educational institution certifies the 
enrollment of the veteran on an individual semester, term, or quarter 
basis.
    (c) Payment for other periods. Subsistence allowance will be paid 
for:
    (1) Weeekend and legal holidays, or customary vacation periods 
associated with them;
    (2) Periods in which the school is closed temporarily under 
emergency conditions described in Sec. 21.4138(f).



Sec. 21.272  Veteran-student services.

    (a) Eligibility. Veterans who are pursuing a rehabilitation program 
under chapter 31 on a three-quarter or full-time basis are eligible to 
receive a work-study allowance.


(Authority: 38 U.S.C. 3104(a)(4), 3485)

    (b) Selection criteria. Whenever feasible, VA will give priority to 
veterans with service-connected disabilities rated at 30 percent or more 
disabling in selection of recipients of this allowance. VA shall 
consider the following additional selection criteria:
    (1) Need of the veteran to augment the subsistence allowance or 
payment made by the Chapter 30 rate;
    (2) Motivation of the veteran; and

[[Page 179]]

    (3) Compatibility of the work assignment with the veteran's physical 
condition.


(Authority: 38 U.S.C. 3104(a)(4), 3108(f), 3485)

    (c) Utilization. Veteran-student services may be utilized in 
connection with:
    (1) VA outreach service program as carried out under the supervision 
of a VA employee;
    (2) Preparation and processing of necessary VA papers and other 
documents at educational institutions, regional offices or other VA 
facilities;
    (3) Hospital and domiciliary care and medical treatment at VA 
facilities; and
    (4) Any other appropriate activity of VA.
    (d) Rate of payment. (1) In return for the veterans' agreement to 
perform services for VA totaling 25 times the number of weeks contained 
in an enrollment period, VA will pay an allowance equal to the higher 
of:
    (i) The hourly minimum wage in effect under section 6(a) of the Fair 
Labor Standards Act of 1938 times the number of hours the veteran has 
agreed to work; or
    (ii) The hourly minimum wage under comparable law of the State in 
which the services are to be performed times the number of hours the 
veteran has agreed to work.
    (2) VA will pay proportionately less to a veteran who agrees to 
perform a lesser number of hours of services.


(Authority: 38 U.S.C. 3104(a)(4), 3485)

    (e) Payment in advance. VA will pay in advance an amount equal to 40 
percent of the total amount payable under the contract (but not more 
than an amount equal to 50 times the applicable hourly minimum wage).


(Authority: 38 U.S.C. 3104(a)(4), 3485)

    (f) Veteran reduces rate of training. In the event the veteran 
reduces his or her training to less than three-quarter time before 
completing an agreement, the veteran, with the approval of the Director 
of the VA field station, or designee, may be permitted to complete the 
portions of an agreement in the same or immediately following term, 
quarter or semester in which the veteran ceases to be at least a three-
quarter time student.


(Authority: 38 U.S.C. 3104(a)(4), 3485)

    (g) Veteran terminates training. If the veteran terminates all 
training before completing an agreement, VA:
    (1) Will permit him or her to complete the portion of the agreement 
represented by the sum of money VA has advanced to the veteran for which 
he or she has not performed any services; but
    (2) Will not permit him or her to complete that portion of an 
agreement for which no advance has been made.
    (h) Indebtedness for unperformed service. (1) If the veteran has 
received an advance for hours of unperformed service that remain after 
application of paragraphs (f) and (g) of this section, that advance:
    (i) Will be a debt due the United States; and
    (ii) Will be subject to recovery in the same manner as any other 
debt due the United States;
    (2) For each hour of unperformed service, the amount of indebtedness 
shall equal the hourly wage upon which the contract was made.
    (i) Survey. VA will conduct an annual survey of its regional offices 
to determine the number of veterans whose services can be utilized 
effectively.


(Authority: 38 U.S.C. 3104(a)(4), 3485)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4284, Jan. 
30, 1989, as amended at 56 FR 14648, Apr. 11, 1991; 57 FR 57108, Dec. 3, 
1992; 62 FR 17709, Apr. 11, 1997]



Sec. 21.274  Revolving fund loan.

    (a) Establishment of revolving fund loan. A revolving fund is 
established to provide advances to veterans who would otherwise be 
unable to begin or continue in a rehabilitation program without such 
assistance.
    (b) Definition. The term advance means a non-interest loan from the 
revolving fund.
    (c) Eligibility. A veteran is eligible for an advance if the 
following conditions are present:

[[Page 180]]

    (1) An Individualized Written Rehabilitation Plan, Individualized 
Extended Evaluation Plan, or Individualized Independent Living Plan has 
been prepared; and
    (2) The veteran and VA staff agree on the terms and conditions of 
the plan.
    (d) Advance conditions. (1) An advance may be approved when the 
following conditions are met:
    (i) The purpose of the advance is clearly and directly related to 
beginning, continuing, or reentering a rehabilitation program;
    (ii) The veteran would otherwise be unable to begin, continue or 
reenter his or her rehabilitation program;
    (iii) The advance does not exceed either the amount needed, or twice 
the monthly subsistence allowance for a veteran without dependents in 
full-time institutional training; and
    (iv) The veteran has elected, or is in receipt of, subsistence 
allowance.
    (2) An advance may not be made to a veteran who meets conditions 
described in paragraph (d)(1) of this section if the veteran:
    (i) Has not fully repaid an advance;
    (ii) Does not agree to the terms and conditions for repayment; or
    (iii) Will not be eligible in the future for payments of pension, 
compensation, subsistence allowance, educational assistance, or retired 
pay.
    (e) Determination of the amount of the advance. (1) If the 
conditions described in paragraphs (c) and (d)(2) of this section are 
met, a counseling psychologist or vocational rehabilitation specialist 
in the VR&C Division will:
    (i) Document the findings; and
    (ii) Determine the amount of the advance.
    (2) Loans will be made in multiples of $10.
    (f) Repayment--(1) Offset possible. The amount advanced will be 
repaid in monthly installments from future VA payments for compensation, 
pension, subsistence allowance, educational assistance allowance or 
retired pay.
    (i) Repayment will begin on the earlier of the following dates:
    (A) The first day of the month following the month in which the 
advance is granted; or
    (B) The first day of the month after receipt of the advance in which 
the veteran receives a subsistence allowance
    (ii) The VR&C staff person who approves the advance will determine 
the rate of repayment.
    (iii) The monthly rate of repayment may not be less than 10 percent 
of the amount advanced unless the monthly benefit against which the 
advance is being offset is less than that amount.
    (2) Offset not possible. If the amount advanced cannot be repaid 
from the benefits cited in paragraph (f)(1) of this section because the 
veteran is not in receipt of any of these benefits, collection of the 
amount due will be made in the same manner as any other debt payable to 
VA.

(Authority: 38 U.S.C. 3112)



Sec. 21.276  Incarcerated veterans.

    (a) General. The provisions contained in this section describe the 
limitations on payment of subsistence allowance and charges for tuition 
and fees for:
    (1) Incarcerated veterans;
    (2) Formerly incarcerated veterans in halfway houses; and
    (3) Incarcerated and formerly incarcerated veterans in work release 
programs.


(Authority: 38 U.S.C. 3108(g), 3680(a))

    (b) Definition. The term incarcerated veteran means any veteran 
incarcerated in a Federal, State, or local prison, jail, or other penal 
institution for a felony. It does not include any veteran who is 
pursuing a rehabilitation program under Chapter 31 while residing in a 
halfway house or participating in a work-release program in connection 
with such veteran's conviction of a felony.
    (c) Subsistence allowance not paid to an incarcerated veteran. A 
subsistence allowance may not be paid to an incarcerated veteran 
convicted of a felony, but VA may pay all or part of the veteran's 
tuition and fees.


(Authority: 38 U.S.C. 3108(g))

    (d) Halfway house. A subsistence allowance may be paid to a veteran 
pursuing a rehabilitation program while residing in a halfway house as a 
result of a felony conviction even though all

[[Page 181]]

of the veteran's living expenses are paid by a non-VA Federal, State, or 
local government program.


(Authority: 38 U.S.C. 3108(a))

    (e) Work-release program. A subsistence allowance may be paid to a 
veteran in a work-release program as a result of a felony conviction.
    (f) Services. VA may provide other appropriate services, including 
but not limited to medical, reader service, and tutorial assistance 
necessary for the veteran to pursue his or her rehabilitation program.


(Authority: 38 U.S.C. 3108(g))

    (g) Payment of allowance at the rates paid under Chapter 30. A 
veteran incarcerated for a felony conviction or a veteran in a halfway 
house or work-release program who elects payment at the educational 
assistance rate paid under Chapter 30 shall be paid in accordance with 
the provisions of law applicable to other incarcerated veterans training 
under Chapter 30.


(Authority: 38 U.S.C. 3108(f), 3680(a))

    (h) Apportionment. Apportionment of subsistence allowance which 
began before October 17, 1980 made to dependents of an incarcerated 
veteran convicted of a felony may be continued.


Authority: 38 U.S.C. 3108(g))

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22807, June 23, 1986; 
54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992]

                    Entering a Rehabilitation Program



Sec. 21.282  Effective date of induction into a rehabilitation program.

    (a) General. Except as provided in paragraph (b) the effective date 
of induction of a veteran into a rehabilitation program will be one of 
the dates provided in Sec. Sec. 21.320 through 21.334.


(Authority: 38 U.S.C. 3108)

    (b) Retroactive induction. (1) A veteran may be inducted into a 
vocational rehabilitation program retroactively when all of the 
following conditions are met:
    (i) The period for which retroactive induction is requested is 
within the veteran's basic period of eligibility or extended eligibility 
as provided in Sec. Sec. 21.41 through 21.44;
    (ii) The veteran was entitled to disability compensation during the 
period for which retroactive induction is requested, and met the 
criteria of entitlement to vocational rehabilitation for that period; 
and
    (iii) The training the veteran pursued during the period is 
applicable to the occupational objective that is confirmed in initial 
evaluation to be compatible with his or her disability, consistent with 
his or her abilities, interests, and aptitudes, and otherwise suitable 
for accomplishing vocational rehabilitation.


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

    (2) A veteran shall not be inducted into a vocational rehabilitation 
program retroactively if any of the following conditions exist even 
though all conditions of paragraph (b) of this section are met;
    (i) Timely induction was prevented by the veteran's lack of 
cooperation in completing an initial evaluation;
    (ii) The veteran has previously received benefits under another VA 
program of education or training for any period for which retroactive 
benefits are being requested under Chapter 31;
    (iii) A period of extended evaluation is authorized to determine the 
reasonable feasibility of a vocational goal; or
    (iv) The veteran's claim is not received within the time limits 
described in Sec. 21.31.


(Authority: 38 U.S.C. 3101(9))

    (c) Effective date of retroactive induction. The effective date of a 
veteran's retroactive induction into training shall be no earlier than 
one year prior to the date of application for Chapter 31 benefits but in 
no event may precede:
    (1) The effective date of the establishment of the veteran's 
compensable service-connected disability; or
    (2) The first date the veteran began training in the program leading 
to the occupational objective established in the veteran's plan.


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

[[Page 182]]



Sec. 21.283  Rehabilitated.

    (a) General. For purposes of chapter 31 a veteran shall be declared 
rehabilitated when he or she has overcome the employment handicap to the 
maximum extent feasible as described in paragraph (c), (d) or (e) of 
this section.


(Authority: 38 U.S.C. 3101 (1), (2))

    (b) Definition. The term ``suitably employed'' includes employment 
in the competitive labor market, sheltered situations, or on a nonpay 
basis which is consistent with the veteran's abilities, aptitudes and 
interests if the criteria contained in paragraph (c) (1) or (2) of this 
section are otherwise met.


(Authority: 38 U.S.C. 3100)

    (c) Rehabilitation to the point of employability has been achieved. 
The veteran who has been found rehabilitated to the point of 
employability shall be declared rehabilitated if he or she:
    (1) Is employed in the occupational objective for which a program of 
services was provided or in a closely related occupation for at least 60 
continuous days;
    (2) Is employed in an occupation unrelated to the occupational 
objective of the veteran's rehabilitation plan for at least 60 
continuous days if the veteran concurs in the change and such 
employment:
    (i) Follows intensive, yet unsuccessful, efforts to secure 
employment for the veteran in the occupation objective of a 
rehabilitation plan for a closely related occupation contained in the 
veteran's rehabilitation plan;
    (ii) Is consistent with the veterans's aptitudes, interests, and 
abilities; and
    (iii) Utilizes some of the academic, technical or professional 
knowledge and skills obtained under the rehabilitation plan; or
    (3) Pursues additional education or training, in lieu of obtaining 
employment, after completing his or her prescribed program of training 
and rehabilitation services if:
    (i) The additional education or training is not approvable as part 
of the veteran's rehabilitation program under this chapter; and
    (ii) Achievement of employment consistent with the veterans's 
aptitudes, interests, and abilities will be enhanced by the completion 
of the additional education or training.


(Authority: 38 U.S.C. 3101(1), 3107 and 3117)

    (d) Rehabilitation to the point of employability has not been 
completed. A veteran under a rehabilitation plan who obtains employment 
without being declared rehabilitated to the point of employability as 
contemplated by the plan, including a veteran in a rehabilitation 
program consisting solely of employment services, is considered to be 
rehabilitated if the following conditions exist:
    (1) The veteran obtains and retains employment substantially using 
the services and assistance provided under the plan for rehabilitation.
    (2) The employment obtained is consistent with the veterans's 
abilities, aptitudes and interests.
    (3) Maximum services feasible to assist the veteran to retain the 
employment obtained have been provided.
    (4) The veteran has maintained the employment for at least 60 
continuous days.


(Authority: 38 U.S.C. 3101(1), 3107 and 3117)

    (e) Independent living. A veteran who has pursued a program of 
independent living services will be considered rehabilitated when all 
goals of the program have been achieved, or if not achieved, when:
    (1) The veteran, nevertheless, has attained a substantial increase 
in the level of independence with the program assistance provided;
    (2) The veteran has maintained the increased level of independence 
for at least 60 days; and
    (3) Further assistance is unlikely to significantly increase the 
veteran's level of independence.


(Authority: 38 U.S.C. 3101 (1), (2) 3107)

[58 FR 68768, Dec. 29, 1993]



Sec. 21.284  Reentrance into a rehabilitation program.

    (a) Reentrance into rehabilitation to the point of employability 
following a determination of rehabilitation. A veteran who has been 
found rehabilitated under provisions of Sec. 21.283 may be provided

[[Page 183]]

an additional period of training or services only if the following 
conditions are met:
    (1) The veteran has a compensable service-connected disability and 
either;
    (2) Current facts, including any relevant medical findings, 
establish that the veteran's service-connected disability has worsened 
to the extent that the effects of the service-connected disability 
considered in relation to other facts precludes him or her from 
performing the duties of the occupation for which the veteran previously 
was found rehabilitated; or
    (3) The occupation for which the veteran previously was found 
rehabilitated under Chapter 31 is found to be unsuitable on the basis of 
the veteran's specific employment handicap and capabilities.


(Authority: 38 U.S.C. 3101(a))

    (b) Reentrance into a program of independent living services 
following a determination of rehabilitation. A finding of rehabilitation 
following a program of independent living services may only be set 
aside, and an additional period of independent living services provided, 
if the following conditions are met:
    (1) Either:
    (i) The veteran's condition has worsened and as a result the veteran 
has sustained a substantial loss of independence; or
    (ii) Other changes in the veteran's circumstances have caused a 
substantial loss of independence; and
    (2) The provisions of Sec. 21.162 pertaining to participation in a 
program of independent living services are met.


(Authority: 38 U.S.C. 3109)

    (c) Reentrance into rehabilitation to the point of employability 
during a period of employment services. A finding of rehabilitation to 
the point of employability by VA may be set aside during a period of 
employment services and an additional period of training and related 
services provided, if any of the following conditions are met:
    (1) The conditions for setting aside a finding of rehabilitation 
under paragraph (a) of this section are found;
    (2) The rehabilitation services originally given to the veteran are 
now inadequate to make the veteran employable in the occupation for 
which he or she pursued rehabilitation;
    (3) Experience during the period of employment services has 
demonstrated that employment in the objective or field for which the 
veteran was rehabilitated to the point of employability should not 
reasonably have been expected at the time the program was originally 
developed; or
    (4) The veteran, because of technological change which occurred 
subsequent to the declaration of rehabilitation to the point of 
employability, is no longer able:
    (i) To perform the duties of the occupation for which he or she 
trained, or in a related occupation; or
    (ii) To secure employment in the occupation for which he or she 
trained, or in a related occupation.


(Authority: 38 U.S.C. 3117)

[49 FR 40814, Oct. 18, 1984, as amended at 58 FR 68769, Dec. 29, 1993]

                 Course Approval and Facility Selection



Sec. 21.290  Training and rehabilitation resources.

    (a) General. For the purpose of providing training and 
rehabilitation services under Chapter 31 VA may:
    (1) Use facilities, staff and other resources of VA;
    (2) Employ any additional personnel and experts needed;
    (3) Use the facilities and services of any:
    (i) Federal agency;
    (ii) State agency;
    (iii) Other public agency; or
    (iv) Agency maintained by joint Federal and state contributions.
    (4) Use the facilities and services of any:
    (i) Public institution or establishment;
    (ii) Private institution or establishment; or
    (iii) Private individual.
    (b) Agreement required. Use of facilities and services provided 
under paragraph (a) of this section shall be procured through contract, 
agreement, or other cooperative arrangement. The

[[Page 184]]

specific requirements for use of contracts or other arrangements are 
described in 48 CFR 871.2.

(Authority: 38 U.S.C. 3115)



Sec. 21.292  Course approvals.

    (a) Courses must be approved. Only those courses approved by the 
Department of Veterans Affairs shall be utilized to provide training and 
rehabilitation services under Chapter 31.


(Authority: 38 U.S.C. 3106)

    (b) General. VA staff in consultation with the veteran will select 
courses and services needed to carry out the rehabilitation plan only 
from those which VA determines are offered by a training or 
rehabilitation facility which:
    (1) Meets the requirements of Sec. Sec. 21.120 through 21.162;
    (2) Meets the criteria of Sec. Sec. 21.290 through 21.299; and
    (3) Is in compliance with Title VI of the Civil Rights Act of 1964, 
section 503(a) Veterans Readjustment Act of 1972, and sections 501 
through 504 of the Rehabilitation Act of 1973.
    (c) Obtaining information necessary for approval. In determining 
whether services and courses may be approved for a veteran's training 
and rehabilitation under Chapter 31, the Department of Veterans Affairs 
may use information relevant to the approval or certification of such 
services and courses for similar purposes developed by:
    (1) The State approving agencies;
    (2) The Department of Labor;
    (3) State vocational rehabilitation agencies;
    (4) Nationally recognized accrediting associations;
    (5) The Committee on Accreditation of Rehabilitation Facilities; and
    (6) Other organizations and agencies.
    (d) Course not approved. If a course or program is not approved by 
one of the agencies identified in paragraph (c) of this section, VR&C 
staff shall develop necessary information to determine whether criteria 
given in paragraphs (a) and (b) of this section are met.
    (e) Course disapproved. The VR&C Officer may approve for 38 U.S.C. 
chapter 31 use courses that one of the agencies in paragraph (c) of this 
section has disapproved.


(Authority: 38 U.S.C. 3115)

[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17709, Apr. 11, 1997]



Sec. 21.294  Selecting the training or rehabilitation facility.

    (a) Criteria the facility must meet. In addition to approval of the 
courses offered, all facilities which provide training and 
rehabilitation services under Chapter 31 must meet the criteria 
contained in Sec. Sec. 21.290 through 21.299 applicable to the type of 
facility. Each facility must:
    (1) Have space, equipment, instructional material and instructor 
personnel adequate in kind, quality, and amount to provide the desired 
service for the veteran;
    (2) Fully accept the obligation to give the training or 
rehabilitation services in all parts of the plan which call for the 
facility's participation;
    (3) Provide courses or services which:
    (i) Meet the customary requirements in the locality for employment 
in the occupation in which training is given when employment is the 
objective of the program; and
    (ii) Meet the requirements for licensure or permit to practice the 
occupation, if such is required;
    (4) Agree:
    (i) To cooperate with VA, and
    (ii) To provide timely and accurate information covering the 
veteran's attendance, performance, and progress in training in the 
manner prescribed by VA.
    (b) Selecting a facility for provision of independent living 
services. (1) Facilities offering independent living services will be 
utilized to:
    (i) Evaluate independent living potential;
    (ii) Provide a program of independent living services to veterans 
for whom an IILP (Individualized Independent Living Plan) has been 
developed; or
    (iii) Provide independent living services to veterans as part of an 
IWRP (Individualized Written Rehabilitation Plan) or an IEEP 
(Individualized Extended Evaluation Plan).

[[Page 185]]

    (2) VA may use public and nonprofit agencies and facilities to 
furnish independent living services. Public and nonprofit facilities may 
be:
    (i) Veterans Health Administration (VHA) facilities that provide 
independent living services;
    (ii) Facilities which meet standards established by the State 
rehabilitation agency for rehabilitation facilities or for providers of 
independent living services;
    (iii) Facilities which are neither approved nor disapproved by the 
State rehabilitation agency, but are determined by VA as able to provide 
the services necessary in an individual veteran's case.
    (3) VA also may use for-profit agencies and organizations to furnish 
programs of independent living services only if services comparable in 
effectiveness to those provided by for-profit agencies and 
organizations:
    (i) Are not available through public or nonprofit agencies or VHA; 
or
    (ii) Cannot be obtained cost-effectively from public or nonprofit 
agencies or VHA.
    (4) In addition to the criteria described in paragraph (b)(3)(i) of 
this section for public and private nonprofit agencies; for-profit 
agencies and organizations must meet any additional standards 
established by local, state (including the State rehabilitation agency), 
and Federal agencies which are applicable to for-profit facilities and 
agencies offering independent living services.


(Authority: 38 U.S.C. 3115, 3120)

    (c) Use of facilities. VA policy shall be to use VA facilities, if 
available, to provide rehabilitation services for veterans in a 
rehabilitation program under chapter 31. Non-VA facilities may be used 
to provide rehabilitation services only when necessary services are not 
readily available at a VHA facility. This policy shall be implemented in 
accordance with the provisions of paragraph (b) of this section in the 
case of the use of for-profit facilities to provide programs of 
independent living services, or in the case of employment services, 
provision of such services by non-VA sources is permitted under Sec. 
21.252.


(Authority: 38 U.S.C. 3115)

    (d) Selection of individual to provide training or rehabilitation 
services. Persons selected to provide individual instruction or other 
services as part of a program leading to the long-range goal of a 
veteran's plan must meet one of the following criteria:
    (1) State requirements for teaching in the field or occupation for 
which training is being provided; or
    (2) Expertise demonstrated through employment in the field in which 
the veteran is to be trained; or
    (3) Requirements established by professional associations to provide 
the services needed by the veteran.
    (e) Relatives. Relatives of the veteran may not be selected to 
provide services, even if otherwise qualified, unless such use is 
specifically permitted by VA regulation governing provision of the 
service. Selection of a training or rehabilitation facility owned by the 
veteran or a relative, or in which the veteran or a relative of the 
veteran has an interest is precluded, except for selection of a farm as 
provided in Sec. 21.298. The term relative has the same meaning as in 
Sec. 21.374.
    (f) Contracts or agreements required. The Department of Veterans 
Affairs will negotiate formal contracts for reimbursement to providers 
of services as requred by Sec. 21.262. However, a letter contract will 
be effected immediately to permit the induction of the veteran into a 
program if:
    (1) The veteran is immediately entered into a school with which a 
contract is required;
    (2) The veteran's rehabilitation plan will be jeopardized by 
withholding services until a contract can be completed; and
    (3) There are no known reasons to indicate that a contract may not 
be completed in a reasonable time.


(Authority: 38 U.S.C. 3115)

    (g) Training outside the United States. VA may only use those 
facilities and courses outside the United States to provide training 
under Chapter 31 which meet requirements for approval

[[Page 186]]

under Sec. Sec. 21.4250(c) and 21.4260. The conditions under which 
training outside the United States may be approved are contained in 
Sec. 21.130.


(Authority: 38 U.S.C. 3114)

    (h) Flight training. Flight training may only be provided in 
educational institutions which offer a standard college degree. The 
specific conditions under which flight training may be approved are 
contained in Sec. 21.134.


(Authority: 38 U.S.C. 3115)

    (i) Additional consideration. The case manager will consider the 
veteran's preference for a particular training or rehabilitation 
facility but VA has final responsibility for selection of the facility.


(Authority: 38 U.S.C. 3115)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended at 53 
FR 50958, Dec. 19, 1988; 55 FR 42187, Oct. 18, 1990; 62 FR 17709, Apr. 
11, 1997]



Sec. 21.296  Selecting a training establishment for on-job training.

    (a) Additional criteria for selecting a training establishment. In 
addition to meeting all of the requirements of Sec. 21.294 the training 
establishment must:
    (1) Sign an agreement to provide on-job training to disabled 
veterans;
    (2) Provide continuous training for each veteran without 
interruption except for normal holidays and vacation periods;
    (3) Provide daytime training for the veteran except when the veteran 
cannot obtain necessary on-job or related training during the working 
hours of the day;
    (4) Modify the program when necessary to compensate for the 
limitations resulting from the veteran's disability or needs;
    (5) Organize training into definite steps or units which will result 
in progressive training;
    (6) Encourage rapid progress of each veteran rather than limit the 
progress of the individual to the progress of the group;
    (7) Not, during the period of training, use the veteran on 
production activities beyond the point of efficient training;
    (8) Agree to pay the veteran during training (except as provided in 
paragraph (b) of this section) a salary or wage rate;
    (i) Commensurate with the value of the veteran's productive labor,
    (ii) Not less than that prescribed by the Fair Labor Standards Act 
of 1938, as amended, and
    (iii) Not less than that customarily paid to nonveteran-trainees in 
the same or similar training situation;
    (9) Agree to provide the veteran with employment at the end of the 
training program, provided the veteran's conduct and progress have been 
satisfactory; and
    (10) Agree to furnish VA a statement in writing showing wages, 
compensation, and other income paid directly or indirectly to each 
veteran in training under Chapter 31 during the month.


(Authority: 38 U.S.C. 3108(c), 3115)

    (b) On-job training at subminimum wage rates. A subminimum hourly 
wage rate for handicapped workers may be considered where necessary in 
order to prevent curtailment of opportunities for employment. Payment at 
the subminimum rate must be approved by the Wage and Hour Division of 
the Department of Labor.


(Authority: 38 U.S.C. 3115)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.298  Selecting a farm.

    (a) Control of the farm--farm operator. A farm selected for farm 
cooperative training must be under the control of the veteran by 
ownership, lease or other written tenure arrangement. If the veteran 
does not own the farm, the lease or other written agreement shall:
    (1) Afford the veteran control of the farm at least until the end of 
his or her course;
    (2) Allow the veteran's control to be such that he or she is able:
    (i) To carry out the provisions of the training program; and
    (ii) To operate the farm in accordance with the farm and home plan 
developed by the case manager and the

[[Page 187]]

veteran in collaboration with the instructor, and when appropriate, the 
landowner or lessor;
    (3) Permit instruction in the planning, management, and operation of 
farming enterprise in the veteran's farm and home plan;
    (4) At least by the end of the necessary minimum period of training, 
assure the veteran a reasonably satisfactory living under normal 
economic conditions;
    (5) Provide for the necessary buildings and equipment to enable the 
veteran to satisfactorily begin pursuit of the course of farm 
cooperative training;
    (6) Provide for resources which give reasonable promise that any 
additional items required for the pursuit of the course, including 
livestock, will be available as they become necessary;
    (7) Provide for capital improvements to be made which are necessary 
for carrying out the farm and home plan, with the veteran furnishing no 
greater portion of the costs than the benefits accruing to the veteran 
warrant; and
    (8) Provide for the landowner or leasor to share the costs of 
improved practices put into effect in proportion to the returns he or 
she will receive from such practices.
    (b) Farms on which more than one person trains--farm operator. If a 
veteran in training is a partner of another person or if more than one 
person is involved in operating the farm, the farm shall be of such size 
and character that the farm:
    (1) Together with the instruction part of the course will occupy the 
full time of the veteran; and
    (2) Meets all requirements of paragraph (a) of this section.
    (c) Selecting a farm--farm manager. The farm on which a veteran 
trains to become a farm manager shall be of such size and character 
that, together with the group instruction part of the course the farm:
    (1) Will occupy the full time of the veteran;
    (2) Will permit instruction in all aspects of the management and 
operation of a farm of the type for which the veteran is being trained; 
and
    (3) Meets the requirements of paragraph (a) of this section.
    (d) Employer agreement. VA may approve a farm on which a veteran is 
to train to become a farm manager only if the employer-trainer agrees:
    (1) To instruct the veteran in various aspects of farm management in 
accordance with the individual's plan;
    (2) To pay the veteran for each successive period of training a 
salary or wage rate:
    (i) Commensurate with the value of the veteran's productive labor; 
and
    (ii) Not less than that customarily paid to a nonveteran trainee in 
the same or similar training situation in that community; and
    (3) To employ the veteran as a manager of the farm on which he or 
she is being trained if his or her conduct and progress remain 
satisfactory, or assure that the veteran will be employed as manager of 
a specified comparable farm.

(Authority: 38 U.S.C. 3115)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.299  Use of Government facilities for on-job training or work 
experience at no or nominal pay.

    (a) Types of facilities which may be used to provide training. 
Notwithstanding any other provision of regulations governing chapter 31, 
the facilities of any agency of the United States or of any State or 
local government receiving Federal financial assistance may be used to 
provide training or work experience at no or nominal pay as all or part 
of the veteran's program of vocational training under Sec. Sec. 21.123, 
21.294, and 21.296 of this part. The counseling psychologist and case 
manager must determine that the training work experience is necessary to 
accomplish vocational rehabilitation and providing such training or work 
experience is in the best interest of the veteran and the Federal 
government.


(Authority: 38 U.S.C. 3115, Pub. L. 100-689)

    (b) Employment status of veterans. (1) While pursuing on-job 
training or work experience in a facility of the United States, a 
veteran:
    (i) Shall be deemed to be an employee of the United States for the 
purposes of

[[Page 188]]

benefits under chapter 81, title 5 U.S.C.; but
    (ii) Shall not be deemed an employee of the United States for the 
purpose of laws administered by the Office of Personnel Management.
    (2) While pursuing on-job training or work experience in a State or 
local government agency the veteran shall have the employment status and 
rights comparable to those provided in paragraph (b)(1) of this section 
for a veteran pursuing on-job training or work experience at a Federal 
agency.


(Authority: 38 U.S.C. 3115, Pub. L. 100-689)

    (c) Terms applicable to training in State and local government. (1) 
The term State means each of the several States Territories, any 
possession of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico.


(Authority: 38 U.S.C. 101(20))

    (2) The term local government agency means an administrative 
subdivision of a government including a county, municipality, city, 
town, township, public authority, district, school district, or other 
such agency or instrumentality of a local government.
    (3) The term Federal financial assistance means the direct or 
indirect provision of funds by grant, loan, contract, or any other 
arrangement by the Federal government to a State or local government 
agency.
    (d) Additional considerations in providing on-job training and work 
experience in State and local government agencies. (1) The veteran's 
progress and adjustment in a rehabilitation program conducted wholly or 
in part at a State or local government agency shall be closely monitored 
by VR&C staff members to assure that:
    (i) Training and rehabilitation services are provided in accordance 
with the veteran's rehabilitation plan. The plan shall provide for:
    (A) Close supervision of the veteran's progress and adjustment by 
the case manager during the period he or she is at the State or local 
government agency; and
    (B) The employer's periodic certification (not less than once every 
three months) that the veteran's progress and adjustment are in 
accordance with the program which has been jointly developed by VA, the 
veteran and the employer; and
    (ii) The veteran achieves his or her employment goal.
    (2) Training may not be provided for a position which involves 
religious or political activities;
    (3) The veteran's training:
    (i) Will not result in the displacement of currently employed 
workers; and
    (ii) Will not be in a job while another person is laid off from a 
substantially equivalent job, or will not be in a job the opening for 
which was created as a result of the employer having terminated the 
employment of any regular employee or otherwise having reduced its 
workforce with the intention of using the opening for a Chapter 31 
trainee.


(Authority: Pub. L. 100-689)

[55 FR 3739, Feb. 5, 1990]

                             Rate of Pursuit



Sec. 21.310  Rate of pursuit of a rehabilitation program.

    (a) Programs offered at educational institutions. This section 
provides policy for determining the full-time and part-time rate of 
pursuit of a rehabilitation program by a veteran whose ability to pursue 
a program has not been reduced by the effects of disability.
    (1) Measuring full and part-time training. VA will measure the full-
time and part-time rate of pursuit of training offered at educational 
institutions according to the criteria found in Sec. Sec. 21.4270 
through 21.4275, except as provided in paragraphs (a) (2) and (3) of 
this section.
    (2) Independent study course. (i) For certain seriously disabled 
veterans described in subdivision (i)(A) of this subparagraph VA may 
measure the veteran's enrollment:
    (A) In an independent study course as half-time or greater training, 
or
    (B) Both in independent study subjects and subjects requiring class 
attendance on the basis of the combined training load when the number of 
credit hours of independent study equals or exceeds the number of other 
credit hours.

[[Page 189]]

    (ii) To qualify for measurement described in paragraph (a)(2)(i) of 
this section:
    (A) The seriously disabled veteran must have a disability or 
circumstances which preclude regular attendance at an institution of 
higher learning, and
    (B) Independent study must be a sound method for providing the 
training necessary for restoring the veteran's employability.
    (iii) In all other cases VA will measure independent study according 
to the provisions of Sec. 21.4280.
    (3) Special school. If training is pursued in a special school, such 
as those for persons with visual or hearing disabilities, the rate of 
pursuit will be measured under Sec. Sec. 21.2470 through 21.4275 unless 
it is the established policy of the school to measure the rate of 
pursuit for full-time or particular level or part-time training based 
upon fewer semester, credit, or clock hours of attendance than 
prescribed in these regulations.
    (4) Farm cooperative. If training in a farm cooperative program is 
provided by an educational institution, the rate of pursuit shall be 
determined the same as under Sec. 21.4270 for that type of training.
    (5) Course offered under contract. When a school or other entity 
furnishes all or part of a vocational rehabilitation program under 
contact with another school, VA will measure the course or courses as 
appropriate for the school or other entity actually providing the 
training.
    (b) Education or training not furnished by an educational 
institution. The following types of training which are not furnished by 
an educational institution (Sec. 21.35(k)(3) may only be pursued full-
time:
    (1) On-job training. Full-time training in an on-job program is the 
lesser of the number of hours in the prevailing workweek for:
    (i) Journeyman employees in the same job categories at the 
establishment where training is being provided;
    (ii) Other persons in on-job training for the same or similar 
occupations at the facility where the veteran is training or at other 
facilities in the locality.
    (2) Farm cooperative training. If training in a farm cooperative 
program is provided by an individual instructor, the full-time rate of 
pursuit must meet the requirements of Sec. 21.126.
    (3) Independent instructor. The full-time rate of pursuit for a 
veteran in an independent instructor program must meet the requirements 
of Sec. 21.146.
    (4) Training in the home. The full-time rate for a training program 
provided in the veteran's home must meet the requirements of Sec. 
21.146.
    (5) Vocational course in a rehabilitation facility or sheltered 
workshop. A vocational course of training offered by a rehabilitation 
facility or sheltered workshop (Sec. 21.35(k) (5) and (6)), will be 
measured under provisions of Sec. 21.4270(b) for trade or technical 
nonaccredited courses, unless it is the established policy of the 
facility to measure the rate of pursuit for full-time or a particular 
level of part-time training based upon fewer clock hours of attendance 
than provided in that regulation.
    (c) Combination and cooperative programs. The rate of pursuit of a 
program which combines institutional training and on job training will 
be measured as follows:
    (1) The institutional part will be assessed under Sec. Sec. 21.4270 
through 21.4275, and
    (2) The on-the-job part will be assessed under paragraph (b)(1) of 
this section.
    (d) Rehabilitative services. Measurement of the rate of pursuit for 
veterans in programs consisting primarily of services designed to 
evaluate and improve physical and psychological functioning will be 
assessed under this paragraph.
    (1) The services assessed under this paragraph include:
    (i) Evaluation and improvement of the rehabilitation potential of a 
veteran for whom attainment of a vocational goal is reasonably feasible;
    (ii) Extended evaluation to determine whether attainment of a 
vocational goal is reasonably feasible; or
    (iii) A program of independent living services to enable a veteran 
to function more independently in his or her family and community when 
attainment of a vocational goal is not reasonably feasible.

[[Page 190]]

    (2) Measurement of the rate of pursuit for services and programs 
named in paragraph (d)(1) of this section will be:
    (i) As provided in paragraph (a) of this section for services 
furnished by educational institutions; or
    (ii) According to the noneducational facility's customary criteria 
for full-time and part-time pursuit. If the facility does not have 
established criteria for full-time and part-time pursuit, or services 
are being provided by more than one facility, the rate of pursuit will 
be assessed in the following manner:

------------------------------------------------------------------------
              Rate of pursuit                   Clock hours per month
------------------------------------------------------------------------
Full-time.................................  120 or more.
Three-quarter time \1\....................  90-119.
Half-time \1\.............................  60-89.
Quarter-time \1\..........................  30-59.
------------------------------------------------------------------------
\1\ Extended evaluation and independent living.


(Authority: 38 U.S.C. 3108(d))



Sec. 21.312  Reduced work tolerance.

    (a) General. VA will consider that a veteran with reduced work 
tolerance is pursuing a rehabilitation program full-time when the amount 
of time the veteran is devoting to his or her program is as great as the 
effects of his or her disability (service and nonservice-connected) will 
permit.
    (b) Pursuit of a program. A veteran with reduced work tolerance may 
pursue a rehabilitation program when the following conditions are met:
    (1) Reduced work tolerance has been determined.
    (2) Achievement of the goals of the program are reasonably feasible;
    (3) The IWRP (Individualized Written Rehabilitation Plan) or other 
plan provides for completion of the program under Chapter 31.
    (c) Redetermination of work tolerance. As necessary, but not less 
than once yearly, the veteran's work tolerance will be reevaluated. The 
rate of pursuit required to meet the standard of full-time pursuit will 
be modified if there is either an increase or decrease in the work 
tolerance of the veteran.
    (d) Payment of allowance. A veteran with a reduced work tolerance 
will be paid a subsistence allowance, at the full-time rate for the type 
of program being pursued, when the veteran meets the standard for full-
time pursuit established for him or her in the Plan. A veteran with 
reduced work tolerance, who elects benefits at the Chapter 34 rate, will 
have to meet normal attendance requirements for that chapter, however.
    (e) Determining work tolerance. A VA physician will make all 
determinations and redeterminations of work tolerance.

(Authority: 38 U.S.C. 3108(d))



Sec. 21.314  Pursuit of training under special conditions.

    A veteran is required to pursue a rehabilitation program at a rate 
which meets the requirement for full- or part-time participation 
described in Sec. Sec. 21.310 and 21.312. However, a veteran may pursue 
a rehabilitation program at a lesser rate, if such pursuit is a part of 
the veteran's plan. Subsistence allowance is not payable during such 
periods.

(Authority: 38 U.S.C. 3108(d))

 Authorization of Subsistence Allowance and Training and Rehabilitation 
                                Services



Sec. 21.320  Awards for subsistence allowance and authorization of 
rehabilitation services.

    Awards providing for payment of a subsistence allowance and 
authorization of services necessary for rehabilitation may be prepared 
when an IWRP (Individualized Written Rehabilitation Plan) or other plan 
has been completed and other requirements for entrance or reentrance 
into a rehabilitation program have been met.
    (a) Commencing date of subsistence allowance. The commencing date of 
an award of subsistence allowance will be determined under the 
provisions of Sec. 21.322.
    (b) Commencing date of authorization of training and rehabilitation 
services. The commencing date for authorization of training and 
rehabilitation services is the same as the effective date for awards for 
subsistence allowance under provisions of Sec. 21.322, except when:
    (1) The commencing date for authorization of a program of employment

[[Page 191]]

services is determined under provisions of Sec. 21.326;
    (2) An earlier commencement date is established in the veteran's 
plan or the veteran is entitled to earlier induction under Sec. 21.282;
    (3) The veteran elects payment at the educational assistance 
allowance rate, in which case the commencing date of payment is 
determined under provisions applicable to commencement of payment under 
Chapter 30.


(Authority: 38 U.S.C. 3108 (a) and (f))

    (c) Ending date of subsistence allowance. The ending date of an 
award for subsistence allowance will be the earliest of the following 
dates:
    (1) The ending date provided in the veteran's IWRP or other plan;
    (2) The ending date of a period of enrollment as certified by a 
training or rehabilitation facility;
    (3) The ending date specified in Sec. 21.324.


(Authority: 38 U.S.C. 3108)

    (d) Ending date for training and rehabilitation services. The ending 
date of training and rehabilitation services will be the same as the 
termination date for subsistence allowance under paragraph (c) of this 
section, except when:
    (1) The ending date for a period of employment services is 
determined under provisions of Sec. 21.326;
    (2) A later termination date is established in the veteran's plan;
    (3) A veteran has elected payment at the educational assistance rate 
paid under Chapter 30. The ending date of the award is determined under 
regulations applicable to termination of training under Chapter 30.


(Authority: 38 U.S.C. 3108 (a) and (f))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.322  Commencing dates of subsistence allowance.

    (a) General. VA will determine the commencing date of an award or 
increased award of subsistence allowance under this section. VA will not 
authorize subsistence allowance for any period prior to the earliest 
date for which disability compensation is payable or would be payable 
but for the veteran's receipt of retired pay.


(Authority: 38 U.S.C. 3108, 3113)

    (b) Entrance or reentrance into vocational rehabilitation, extended 
evaluation, independent living services. Except in the case of 
retroactive induction into a rehabilitation program, as provided in 
Sec. 21.282, the commencing date of an award of subsistence allowance 
shall be the earlier of:
    (1) The date the facility requires the veteran to report for 
prescribed activities; or
    (2) The date training or rehabilitation services begin.
    (c) Increases for dependents--(1) Dependency exists at the time of 
entrance or reentrance into a rehabilitation program. A veteran may have 
one or more dependents on or before the date he or she enters or 
reenters a rehabilitation program. When this occurs, the following rules 
apply:
    (i) The effective date of the increase will be the date of entrance 
or reentrance if:
    (A) VA receives the claim for the increase within one year of the 
date of entrance or reentrance; and
    (B) VA receives any necessary evidence within 1 year of the date VA 
requested the evidence and informed the veteran of the time limits 
during which this evidence must be submitted. If VA fails to inform the 
veteran of these time limits, the period of submission of the evidence 
is adjusted in accordance with Sec. 21.32 of this part.
    (ii) The effective date of the increase will be the date VA receives 
notice of the dependents existence if:
    (A) VA receives the claim for the increase more than one year after 
the date of entrance or reentrance; and
    (B) VA receives any necessary evidence within 1 year of the date VA 
requested the evidence and informed the veteran of the time limits 
during which this evidence must be submitted. If VA fails to inform the 
veteran of these time limits, the period for submission of the evidence 
is adjusted in accordance with Sec. 21.32 of this part;

[[Page 192]]

    (iii) The effective date of the increase will be the date VA 
receives all necessary evidence if that evidence is received more than 
one year from the date VA requested the evidence and informed the 
veteran of the time limits during which this evidence must be submitted. 
If VA fails to inform the veteran of these time limits, the period for 
submission of the evidence is adjusted in accordance with Sec. 21.32 of 
this part.
    (2) Dependency arises after entrance or reentrance into a 
rehabilitation program. If the veteran acquires a dependent after he or 
she enters or reenters a rehabilitation program, the increase will be 
effective on the latest of the following dates:
    (i) Date of claim. This term means the following listed in order of 
their applicability:
    (A) Date of the veteran's marriage, or birth of his or her child, or 
his or her adoption of a child, if the evidence of the event is received 
within one year from the date of the event;
    (B) Date notice is received of the dependents's existence if 
evidence is received within 1 year from the date VA requested the 
evidence and informed the veteran of the time limits during which this 
evidence must be submitted. If VA fails to inform the veteran of these 
time limits, the period for submission of the evidence is adjusted in 
accordance with Sec. 21.32 of this part.
    (C) Date VA receives evidence of the dependent's existence if this 
date is more than one year after VA requested this evidence and informed 
the veteran of the time limits during which this evidence must be 
submitted. If VA fails to inform the veteran of the time limits, the 
period for submission of the evidence is adjusted in accordance with 
Sec. 21.32 of this part.
    (ii) Date dependency arises--(3) Increased award not permitted. No 
increased award for dependency may be paid prior to the date the law 
permits benefits for dependents generally.


(Authority: 38 U.S.C. 3108(b))

    (d) Correction of military records. In accordance with the facts 
found, but not earlier than the date the change, correction, or 
modification was made by the service department, if eligibility of a 
veteran arises as the result of correction or modification of military 
records under 10 U.S.C. 1552, or change, correction or modification of a 
discharge or dismissal under 10 U.S.C. 1553, or other competent military 
authority.
    (e) Bar to benefits removed by VA. In accordance with the facts 
found, but not earlier than the date the change was made by VA, if 
eligibility of a veteran arises as the result of review of the evidence 
of record regarding the character of discharge by VA, when the veteran's 
discharge or dismissal was a bar to benefits under 38 U.S.C. 5301.


(Authority: 38 U.S.C. 3103(b))

    (f) Incarcerated veterans. (1) Date of release from Federal, State, 
or local penal institution of a veteran incarcerated for conviction of a 
felony.
    (2) Earlier of the following dates in the case of a veteran residing 
in a half-way house or participating in a work-release program as a 
result of a felony conviction.
    (i) Date of release from the half-way house or work-release program, 
or
    (ii) Date a veteran becomes obligated to pay part of his or her 
living expenses.


(Authority: 38 U.S.C. 3108(g))

    (g) Temporary 100 percent award terminated. Date of reduction of a 
temporary award of disability compensation at the 100 percent rate 
because of hospitalization.


(Authority: 38 U.S.C. 3108(h))

    (h) Liberalizing laws and VA issues. In accordance with facts found, 
but not earlier than the date of the act or administrative issue.


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

    Cross-Reference. See Sec. 21.260(c) for definition of dependents.

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 
52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990]

[[Page 193]]



Sec. 21.324  Reduction or termination dates of subsistence allowance.

    (a) General. The effective date of the reduction of the amount paid 
or termination of payment of subsistance allowance will be the earliest 
of the dates specified in this section. If an award is reduced, the 
reduced rate will be effective the day following the date of termination 
of the greater benefit.
    (b) Death of a veteran. Date of death, if death occurs while the 
veteran is in attendance or authorized leave status; otherwise date of 
last attendance.
    (c) Death of a dependent. (1) Before October 1, 1982. Last day of 
the calendar year in which death occurs, unless the veteran's program is 
terminated earlier under other provisions.


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

    (2) After September 30, 1982. Last day of the month in which death 
occurs unless discontinuance is required at an earlier date under other 
provisions.


(Authority: 38 U.S.C. 5112(b), 5113)

    (d) Divorce--(1) Before October 1, 1982. Last day of the calendar 
year in which divorce occurs, unless the veteran's program is terminated 
earlier under other provisions.


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

    (2) After September 30, 1982. Last day of the month in which divorce 
occurs unless discontinuance is required at an earlier date under other 
provisions.


(Authority: 38 U.S.C. 5112(b), 5113)

    (e) Child--(1) Marriage--(i) Before October 1, 1982. Last day of the 
month in which the marriage occurs, unless the veteran's program is 
terminated earlier under other provisions.


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

    (ii) After September 30, 1982. Last day of the month in which the 
marriage occurs, unless discontinuance is required at an earlier date 
under other provisions.


(Authority: 38 U.S.C. 5112(b), 5113)

    (2) Age 18. Day preceding the child's 18th birthday.
    (3) School attendance.
    (i) Last day of the month in which the child ceases attending 
school; or
    (ii) The day preceding the child's 23rd birthday, whichever is 
earlier.
    (4) Helplessness. Last day of the month in which 60 days has passed 
from VA's notice to the payee that the child's helplessness has ceased.
    (f) Interrupted, rehabilitation to the point of employability, 
independent living program completed, and extended evaluation completed 
status. Last day of attendance, or approved leave status, whichever is 
applicable.


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

    (g) Discontinued. Last day of attendance or approved leave status, 
whichever is applicable, except as follows:
    (1) If VA places the veteran in ``discontinued'' status following 
the veteran's withdrawal from all courses with nonpunitive grades or 
following his or her completion of all courses with nonpunitive grades 
and the case manager does not find mitigating circumstances, VA will 
terminate subsistence allowance effective:
    (i) The first date of the term, or
    (ii) December 1, 1976, whichever is later.
    (2) If VA places the veteran in ``discontinued'' status following a 
term in which the grades the veteran receives include both those that 
count in the grade point average and nonpunitive grades, and the case 
manager does not find mitigating circumstances:
    (i) VA will terminate subsistence allowance for courses in which the 
veteran receives nonpunitive grades effective the first day of the term 
or December 1, 1976, whichever is later.
    (ii) VA will terminate subsistence allowance for courses in which 
the veteran receives grades that will count in the grade point average 
effective the veteran's last day of attendance or approved leave status, 
whichever is applicable.


(Authority: 38 U.S.C. 3680(a))

    (h) Wages or salary received in apprentice or on-job training. (1) 
If the sum of the training wage plus the scheduled subsistence allowance 
is more than the journeyman wage when the training commences, the 
subsistence allowance will be decreased by VA effective the

[[Page 194]]

first day of the second month following the month in which the veteran 
enters on-job training.
    (2) Subsequent adjustments will be effective the first day of the 
second month following the month in which wages or salary changes are 
made which justify the adjustment under provisions of Sec. 21.266(e).


(Authority: 38 U.S.C. 3108)

    (i) Reduction in rate of pursuit of the program. End of month in 
which reduction occurs, except that if the rate of pursuit is reduced as 
a result of the veteran's withdrawal from a unit course or courses with 
nonpunitive grade(s) or as a result of the veteran's completion of a 
unit course or courses with nonpunitive grade(s) (Sec. 21.4200(j)), VA 
will reduce subsistence allowance as follows:
    (1) If it is determined that there are mitigating circumstances:
    (i) Withdrawal with nonpunitive grades: The end of the month or the 
end of the term in which the veteran withdraws, whichever is earlier; if 
the reduction occurs at the beginning of the term benefits will be 
reduced the first day of the term in which the veteran withdraws.
    (ii) Completion with nonpunitive grades. No reduction required.
    (2) If it is determined there are no mitigating circumstances VA 
will reduce the veteran's subsistence allowance effective the first day 
of the term in which the veteran withdraws or which the veteran 
completes with nonpunitive grades. The term mitigating circumstances 
means circumstances beyond the veteran's or serviceperson's control 
which prevent him or her from continuously pursuing a rehabilitation 
program. The following circumstances are representative of those which 
are considered mitigating.
    (i) An illness of the program participant;
    (ii) An illness or death in the program participant's family;
    (iii) An unavoidable change in the veteran's conditions of 
employment;
    (iv) An unavoidable geographical transfer resulting from the 
veteran's employment;
    (v) Immediate family or financial obligations beyond the control of 
the veteran which are found by VA to require the veteran to suspend 
pursuit of the rehabilitation program;
    (vi) Discontinuance of the course by the educational institution;
    (vii) In the first instance of withdrawal on or after June 1, 1989 
by a program participant from a course or courses with respect to which 
such veteran has been paid subsistence allowance under the provisions of 
Sec. 21.260(b), mitigating circumstances shall be considered to exist 
with respect to courses totaling not more than six semester hours or the 
equivalent thereof;
    (viii) Difficulties in obtaining child care or changes in such 
arrangements which are beyond the control of the program participant and 
which require interruption of the rehabilitation program is order for 
the participant to provide or arrange for such care.


(Authority: 38 U.S.C. 3680(a))

    (j) Severance of service-connection. Last day of the month in which 
the severance becomes final.


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

    (k) Fraud. The later of the following dates:
    (1) The beginning date of the award of subsistence allowance, or
    (2) The day preceding the date of the fraudulent act.


(Authority: 38 U.S.C. 6103(a))

    (l) Error--(1) Payee error. Effective date of the award of 
subsistence allowance or day preceding the act, whichever is later, but 
not prior to the date the veteran's entitlement ceases, on an erroneous 
award based on an act of commission or omission by a payee with his or 
her knowledge.
    (2) Administrative error. Except as provided in paragraph (j) of 
this section, date of last payment on an erroneous award based solely on 
administrative error or an error in judgment by a VA employee.
    (m) Treasonable acts, subversive activities. The later of the 
following dates:
    (1) Beginning date of the award of subsistence allowance, or

[[Page 195]]

    (2) Day preceding the date of commission of the treasonable act or 
subversive activities for which the veteran is convicted.


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

    (n) Incarceration in prison or jail--(1) Felony conviction. If a 
veteran's subsistence allowance must be reduced because of incarceration 
for a felony conviction under provisions of Sec. 21.276, his or her 
rate of payment will be reduced the later of:
    (i) The date of his or her incarceration in a prison or jail; or
    (ii) The commencing date of his or her award as determined by Sec. 
21.322.
    (2) Halfway house or work-release program. The subsistence allowance 
of a veteran in a halfway house or work release program as a result of 
conviction of a felony will not be reduced under the provisions of Sec. 
21.276 the date on which the Federal Government or a State or local 
government pays all of the veteran's living expenses.


(Authority: 38 U.S.C. 3108(g))

    (o) Specialized rehabilitation facility. Date payment for room and 
board by VA begins, reduce the rate paid to the amount payable for 
dependents.


(Authority: 38 U.S.C. 3108(i))

    (p) Termination of subsistence allowance while hospitalized at VA 
expense. Date before the beginning date of the increased disability 
compensation award, which results in a reduced subsistence allowance 
under the provisions of Sec. 21.266.


(Authority: 38 U.S.C. 3108(h))

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 
51 FR 25525, July 15, 1986; 55 FR 48843, Nov. 23, 1990]



Sec. 21.326  Authorization of employment services.

    (a) General. Authorization of employment services shall be based 
upon the services identified and goals established in an IEAP 
(Individualized Employment Assistance Plan) under provisions of Sec. 
21.88. The effective dates for the commencement, or termination of such 
services will be determined under this section.


(Authority: 38 U.S.C. 3117(a))

    (b) Commencing date. The commencing date authorizing a period of 
employment services will be the later of:
    (1) The date following completion of the period of rehabilitation to 
the point of employability; or
    (2) The date of the original IEAP.


(Authority: 38 U.S.C. 3107, 3117(a))

    (c) Termination of the authorization of employment services. 
Authorization for employment services will be terminated the earliest 
of:
    (1) The last day employment services are provided under the terms of 
an IEAP when employment services are interrupted, discontinued, or the 
veteran is rehabilitated;
    (2) The date the authorization is found to be erroneous because of 
an act of omission or commission by the veteran, or with his or her 
knowledge;
    (3) The last day of the month in which severance of service 
connection becomes final;
    (4) The day proceding the date of a fraudulent act;
    (5) The date preceding the commission of a treasonable or subversive 
act for which the veteran is convicted.


(Authority: 38 U.S.C. 3108, 5113)



Sec. 21.328  Two veteran cases--dependents.

    If both partners in a marriage are veterans, and if each is 
receiving either subsistence allowance for a vocational rehabilitation 
program or an educational assistance allowance under another VA program, 
each is entitled to receive the additional allowances payable for each 
other and for their children.

(Authority: 38 U.S.C. 3108(a))



Sec. 21.330  Apportionment.

    (a) General. Where in order, VA will apportion subsistence allowance 
in accordance with Sec. 3.451 of this title, subject to the limitations 
of Sec. 3.458 of this

[[Page 196]]

title. If the veteran is in receipt of benefits at the Chapter 30 rate, 
VA will not apportion these benefits.


(Authority: 38 U.S.C. 5307(c))

    (b) Effective date. The effective date of apportionment will be as 
prescribed in Sec. 3.400(e) of this title.


(Authority: 38 U.S.C. 5307(c))

    (c) Child adopted out of family. Where evidence establishes that a 
veteran is the natural parent of a child or children legally adopted 
outside of the veteran's family, VA will apportion in favor of the child 
or children only that additional amount of subsistence allowance payable 
on account of the existence of the child or children. The veteran is not 
entitled in his or her own right to the additional amount of subsistence 
allowance payable for the child because of the existence of the child 
unless the veteran is contributing to the child's support.


(Authority: 38 U.S.C. 5307(c))

    (d) Veteran convicted of a felony. The subsistence allowance of a 
veteran in a rehabilitation program after October 17, 1980, may not be 
apportioned if the veteran is incarcerated because of conviction for a 
felony.


(Authority: 38 U.S.C. 3108(g))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989; 57 
FR 57108, Dec. 3, 1992]



Sec. 21.332  Payments of subsistence allowance.

    (a) Eligibility. At the end of the month, VA shall pay to an 
eligible veteran enrolled in a rehabilitation program, subsistence 
allowance at the rates specified in Sec. 21.260 for the type of program 
pursued during the month, unless advance payment is approved. VA will 
continue payments during those intervals described in Sec. 21.270.


(Authority: 38 U.S.C. 3108)

    (b) Advance payment criteria. VA will make an advance payment of 
subsistence allowance only when:
    (1) The veteran specifically requests an advance payment; and
    (2) The educational institution at which the veteran is accepted or 
enrolled has agreed to, and can carry out, satisfactorily, the 
provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to:
    (i) Receipt, delivery or return of advance checks; and
    (ii) Certifications of delivery and enrollment.
    (c) Advance payment. (1) The amount of advance payment is not to 
exceed:
    (i) The veteran's subsistence allowance for the month or part of a 
month in which his or her course will begin; plus
    (ii) The veteran's subsistence allowance for the following month.
    (2) Upon application and completion of arrangements for enrollment 
of a veteran who meets the criteria for an advance payment, VA shall 
mail a check payable to the veteran to the institution for delivery to 
the veteran upon registration.
    (3) An institution shall not deliver an advance payment check to a 
veteran more than 30 days in advance of commencement of his or her 
program.
    (d) Certification for advance payment. VA will authorize advance 
payment upon receipt of the institution's certification of the following 
information:
    (1) The veteran is eligible for benefits;
    (2) The institution has accepted the veteran or he or she is 
eligible to continue his or her training;
    (3) The veteran has notified the institution of his or her intention 
to attend or to reenroll;
    (4) The number of semester or clock hours the veteran will pursue; 
and
    (5) The beginning and ending dates of the enrollment period.
    (e) Time of advance payment. VA will authorize advance payment only:
    (1) At the beginning of an ordinary school year; or
    (2) At the beginning of any other enrollment period which begins 
after a break in enrollment of one full calendar month or longer.


(Authority: 38 U.S.C. 3680(d))

    (f) Other payments. (1) VA will make all payments other than advance 
payments at the end of the month for the veteran's training during that 
month.

[[Page 197]]

    (2) VA may withhold final payment until:
    (i) VA receives certification that the veteran has completed his or 
her course; and
    (ii) VA makes all necessary adjustments in the veteran's award 
resulting from that certification.


(Authority: 38 U.S.C. 3680(g))

    (g) Payments for courses which are repeated. VA may pay subsistence 
allowance to a veteran who repeats a course under conditions described 
in Sec. 21.132.


(Authority: 38 U.S.C. 3680(a))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.334  Election of payment at the Chapter 30 rate.

    (a) Election. When the veteran elects payment of an allowance at the 
chapter 30 rate, the effective dates for commencement, reduction and 
termination of the allowance shall be in accordance with Sec. Sec. 
21.7130 through 21.7135 and Sec. 21.7050 under chapter 30.


(Authority: 38 U.S.C. 1808(f), 1780)

    (b) Election of payment at the Chapter 30 rate subsequent to 
induction into a rehabilitation program. Election of payment at the 
Chapter 30 rate subsequent to induction into training is permissible 
under provisions of Sec. 21.264 (a) and (b). The effective date of the 
election is the latest of the following dates:
    (1) The commencing date determined under Sec. 21.7131 in the case 
of a veteran who has elected payment at the chapter 30 rate; or

    (2) The day following the end of the period for which VA paid 
tuition, fees or other program charges under this Chapter.


(Authority: 38 U.S.C. 3108(f))

    (c) Reelection of subsistence allowance subsequent to induction. If 
a veteran reelects subsistence allowance under provisions of Sec. 
21.264(b) of this part, the effective date of change is earliest of the 
following:
    (1) The date following completion of the term, semester, quarter, or 
other period of instruction in which the veteran is currently enrolled;
    (2) The veteran's Chapter 30 delimiting date;
    (3) The day after exhaustion of Chapter 30 entitlement; or
    (4) The day following the date of a VA determination that failure to 
approve reelection would prevent the veteran from continuing the 
rehabilitation program.


(Authority: 38 U.S.C. 3108(f))

    (d) Election or reelection during leave or between periods of 
instruction--(1) Payment at the Chapter 30 rate. If an otherwise 
eligible veteran elects payment at the Chapter 30 rate during a period 
between periods of instruction, the effective date of the election shall 
be the first day of the next period of instruction.
    (2) Subsistence allowance. If an otherwise eligible veteran reelects 
subsistence allowance during leave or between periods of instruction 
following election of payment at the Chapter 30 rate, the effective date 
of the change will be the date of the reelection or the beginning of the 
next period of training, whichever is to the veteran's benefit.


(Authority: 38 U.S.C. 3108(f))

    (e) Effect of Chapter 34 program termination. (1) Since Chapter 34 
benefits are not payable beyond December 31, 1989, any previous election 
of benefits at that rate is terminated as of that date;
    (2) A veteran entitled to chapter 30 benefits based on his or her 
chapter 34 eligibility as of December 31, 1989, and whose election of 
chapter 34 rates terminated as of the date under paragraph (e)(1) of 
this section must, if the individual desires payment at the chapter 30 
rate, elect such payment.


(Authority: 38 U.S.C. 1411(a))

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989, 54 
FR 13522, Apr. 4, 1989; 57 FR 57108, Dec. 3, 1992]

                            Leaves of Absence



Sec. 21.340  Introduction.

    (a) General. VA may approve leaves of absence under certain 
conditions. During approved leaves of absence, a veteran in receipt of 
subsistence allowance shall be considered to be pursuing a 
rehabilitation program. Leave may

[[Page 198]]

be authorized for a veteran during a period of:
    (1) Rehabilitation to the point of employability;
    (2) Extended evaluation; or
    (3) Independent living services.
    (b) Election of subsistence allowance. If a veteran elects to 
receive subsistence allowance and payment of rehabilitation services by 
VA, he or she may be authorized leave of absence under Sec. Sec. 21.342 
through 21.350.
    (c) Election of benefits at the chapter 30 rate. If a veteran elects 
to receive a subsistence allowance paid at the chapter 30 rate, the 
effect of absences is determined under Sec. Sec. 21.7139 and 21.7154.

(Authority: 38 U.S.C. 1508(f) and 1510)

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4285, Jan. 30, 1989; 57 
FR 57109, Dec. 3, 1992]



Sec. 21.342  Leave accounting policy.

    (a) Amount of leave. A veteran pursuing one of the programs listed 
in Sec. 21.340(a) may be authorized up to 30 days of leave by the case 
manager during a twelve-month period. The beginning date of the first 
twelve-month period is the commencing date of the original award, and 
the ending date is twelve months from the beginning date, with 
subsequent twelve-month periods running consecutively thereafter.
    (b) Additional leave under exceptional circumstances. A veteran in a 
program may be authorized up to 15 additional days of leave during the 
twelve-month period by the case manager under exceptional circumstances, 
such as extended illness or family problems.
    (c) Absence. For the purpose of determining when a leave of absence 
may be authorized, a veteran who elects subsistence allowance shall be 
considered absent during any period in which he or she is:
    (1) Not in attendance under the rules and regulations of the 
educational institution, rehabilitation center, or sheltered workshop;
    (2) Not considered at work under the rules of the training 
establishment; or
    (3) Not present at a scheduled period of individual instruction.
    (d) System of records. An educational institution, training 
establishment, rehabilitation center, or other facility or individual 
providing training and rehabilitation services under Chapter 31 may 
utilize the same system of records to determine absence as the one used 
for similarly circumstanced nonveterans.
    (e) Change in rate of pursuit. The amount of approved leave is not 
affected by the veteran's rate of pursuit of a rehabilitation program.
    (f) Charging leave. VA shall charge 1 day of leave for each day or 
part of a day of absence from pursuit of a rehabilitation program.
    (g) Limitation on carrying leave over to another period. The veteran 
may not carry over unused days of leave from one twelve-month period to 
another.

(Authority: 38 U.S.C. 3110)

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended by 56 
FR 14649, Apr. 11, 1991]



Sec. 21.344  Facility offering training or rehabilitation services.

    (a) Approval of leaves of absence required. Leaves of absence 
normally must be approved in advance by the case manager when the 
facility offering training or rehabilitation services arranges for the 
leave. The approval of the case manager is required:
    (1) During periods in a rehabilitation program identified in Sec. 
21.342(c); or
    (2) A period of hospitalization at VA expense during one of the 
periods identified in Sec. 21.342(c).
    (b) Responsibility of the veteran in obtaining leave. VA will not 
authorize leave without a verbal or written request by the veteran, and 
the approval of the facility.
    (c) Conditions permitting approval of leaves of absence. (1) The 
case manager may approve leaves of absence up to a total of 30 days 
during a twelve-month period if the facility certifies that the use of 
the leave does not interfere materially with the veteran's progress;
    (2) An additional period of up to 15 days of leave in the same 
twelve-month period under exceptional circumstances may be approved by 
the case manager if failure to approve leave will:
    (i) Result in personal hardship, or

[[Page 199]]

    (ii) Adversely affect the veteran's ability to continue in his or 
her rehabilitation program.

(Authority: 38 U.S.C. 3110)

[49 FR 40814, Oct. 18, 1984, as amended by 56 FR 14649, Apr. 11, 1991]



Sec. 21.346  Facility temporarily not offering training or rehabilitation 
services.

    (a) Approval of leave of absence not required. A veteran may receive 
subsistence allowance, during a period when the facility temporarily is 
not offering services, without the veteran's being charged with leave 
when:
    (1) The facility is closed temporarily under an executive order of 
the President or due to an emergency situation;
    (2) The veteran is pursuing on-job training and he or she receives 
holidays established by Federal or State law;
    (3) The veteran is pursuing farm cooperative training and is 
required in the ordinary day to day conduct of farm business to be 
absent:
    (i) From the farm; or
    (ii) From that part of a farm cooperative course which is given at 
the educational institution.
    (4) The veteran is pursuing a standard college degree; and
    (i) There is an interval between consecutive semesters, terms, 
quarters or periods of instruction within a certified enrollment period 
which does not exceed a full calendar month;
    (ii) There is an interval, which does not exceed a full calendar 
month between semesters, terms or quarters when the educational 
institution only certifies enrollment on a semester, term, or quarter 
basis; or
    (iii) There is an interval, which does not exceed 30 days, when the 
veteran, as part of his or her approved program of vocational 
rehabilitation, transfers from one educational institution to another 
for the purpose of enrolling in and pursuing a similar program at the 
second institution;
    (5) The veteran is pursuing a non-college-degree course and there is 
a period of up to 5 days per twelve-month period during which the school 
offering non-college-degree courses is not operating, because 
instructors are attending professional meetings.
    (b) Case manager responsibility. The case manager may disapprove 
leave under paragraph (a)(4) of this section if:
    (1) Approval would result in or lead to use of more than 48 months 
of entitlement under Chapter 31, alone; or
    (2) Approval would require extension of the scheduled completion 
date of the veteran's program.
    (c) Approval of leaves of absence required. A veteran, who wishes to 
receive subsistence allowance while the facility temporarily is not 
offering training under conditions other than those identified in 
paragraph (a) of this section, must seek an approved leave of absence 
and be charged leave.

(Authority: 38 U.S.C. 3110)



Sec. 21.348  Leave following completion of a period of training or 
rehabilitation services.

    (a) Leave following completion of training or rehabilitation 
services. Leave may not be approved following completion of a period of 
rehabilitation services described in Sec. 21.340(a).
    (b) Postponement of the date of completion of a period of 
rehabilitation services prohibited. The date of completion of the 
veteran's program may not be extended for the purpose of allowing the 
veteran to use leave.

(Authority: 38 U.S.C. 3110)



Sec. 21.350  Unauthorized absences.

    A veteran who is unable to obtain an authorized leave of absence in 
advance may seek to have the unauthorized absence excused.
    (a) Excusing unauthorized absences. VA may excuse an unauthorized 
absence and make proper charges against the veteran's leave when:
    (1) The veteran has absented himself or herself when advance 
approval from VA is impracticable; and
    (2) Conditions for approval of leave are otherwise met.
    (b) Unexcused, unauthorized absences. When an unauthorized absence 
is not satisfactorily explained, VA will take necessary action, 
including recoupment of subsistence allowance for that period of 
absence.

(Authority: 38 U.S.C. 3110)

[[Page 200]]

                         Conduct and Cooperation



Sec. 21.362  Satisfactory conduct and cooperation.

    (a) General. The successful development and implementation of a 
program of rehabilitation services require the full and effective 
participation of the veteran in the rehabilitation process.
    (1) The veteran is responsible for satisfactory conduct and 
cooperation in developing and implementing a program of rehabilitation 
services under Chapter 31;
    (2) The staff is responsible for insuring satisfactory conduct and 
cooperation on the veteran's part; and
    (3) VA staff shall take required action when the veteran's conduct 
and cooperation are not satisfactory. (See Sec. 21.364)
    (b) VA responsibility. VA shall make a reasonable effort to inform 
the veteran and assure his or her understanding of:
    (1) The services and assistance which may be provided under Chapter 
31 to help the veteran maintain satisfactory cooperation and conduct and 
to cope with problems directly related to the rehabilitation process, 
especially counseling services;
    (2) Other services which VR&C staff can assist the veteran in 
securing through non-VA programs; and
    (3) The specific responsibilities of the veteran in the process of 
developing and implementing a program of rehabilitation services, 
especially the specific responsibility for satisfactory conduct and 
cooperation.
    (c) Veteran's responsibility. A veteran requesting or being provided 
services under Chapter 31 must:
    (1) Cooperate with VA staff in carrying out the initial evaluation 
and developing a rehabilitation plan;
    (2) Arrange a schedule which allows him or her to devote the time 
needed to attain the goals of the rehabilitation plan;
    (3) Seek the assistance of VA staff, as necessary, to resolve 
problems which affect attainment of the goals of the rehabilitation 
plan;
    (4) Conform to procedures established by VA governing pursuit of a 
rehabilitation plan including:
    (i) Enrollment and reenrollment in a course;
    (ii) Changing the rate at which a course is pursued;
    (iii) Requesting a leave of absence;
    (iv) Requesting medical care and treatment;
    (v) Securing supplies; and
    (vi) Other applicable procedures.
    (5) Conform to the rules and regulations of the training or 
rehabilitation facility at which services are being provided.
    (d) Responsibility for determining satisfactory conduct and 
cooperation. VR&C staff with case management responsibility in the 
veteran's case will:
    (1) Monitor the veteran's conduct and cooperation as necessary to 
assure consistency with provisions of paragraph (c) of this section.
    (2) Provide assistance which may be authorized under Chapter 31, or 
for which arrangements may be made under other programs to enable the 
veteran to maintain satisfactory conduct and cooperation.

(Authority: 38 U.S.C. 3111)



Sec. 21.364  Unsatisfactory conduct and cooperation.

    (a) General. If VA determines that a veteran has failed to maintain 
satisfactory conduct or cooperation, VA may, after determining that all 
reasonable counseling efforts have been made and are found not 
reasonably likely to be effective, discontinue services and assistance 
to the veteran, unless the case manager determines that mitigating 
circumstances exist. In any case in which such services and assistance 
have been discontinued, VA may reinstitute such services and assistance 
only if the counseling psychologist determines that:
    (1) The unsatisfactory conduct or cooperation of such veteran will 
not be likely to recur; and
    (2) The rehabilitation program which the veteran proposes to pursue 
(whether the same or revised) is suitable to such veteran's abilities, 
aptitudes, and interests.
    (b) Unsatisfactory conduct or cooperation exists. When the case 
manager determines that the veteran's conduct and/or cooperation are not 
in conformity with provisions of Sec. 21.362(c), the case manager will:

[[Page 201]]

    (1) Discuss the situation with the veteran;
    (2) Arrange for services, particularly counseling services, which 
may assist in resolving the problems which led to the veteran's 
unsatisfactory conduct or cooperation;
    (3) Interrupt the program to allow for more intense efforts, if the 
unsatisfactory conduct and cooperation persist. If a reasonable effort 
to remedy the situation is unsuccessful during the period in which the 
program is interrupted, the veteran's case will be discontinued and 
assigned to ``discontinued'' status unless mitigating circumstances are 
found. When mitigating circumstances exist the case may be continued in 
``interrupted'' status until VA staff determines the veteran may be 
reentered into the same or a different program because the veteran's 
conduct and cooperation will be satisfactory, or if a plan has been 
developed, to enable the veteran to reenter and try to maintain 
satisfactory conduct and cooperation. Mitigating circumstances include:
    (i) The effects of the veteran's service and nonservice-connected 
condition;
    (ii) Family or financial problems which have led the veteran to 
unsatisfactory conduct or cooperation; or
    (iii) Other circumstances beyond the veteran's control.

(Authority: 38 U.S.C. 3111)

           Interregional and Intraregional Travel of Veterans



Sec. 21.370  Intraregional travel at government expense.

    (a) Introduction. VA may authorize transportation expenses for 
intraregional travel to a veteran in a rehabilitation program or a 
program of employment services for the purposes presented in paragraph 
(b) of this section. When approved for purposes stated in paragraph (b) 
of this section, authorization of travel is limited to the veteran's 
transportation, and does not include transportation for the veteran's 
dependents, or for moving personal effects.


(Authority: 38 U.S.C. 111, 3104(a)(13))

    (b) Necessary condition for intraregional travel at government 
expense. VA may authorize a veteran to travel at government expense 
within the regional territory of the VA field station of jurisdiction 
when:
    (1) VA determines that the travel is necessary in the discharge of 
the government's obligation to the veteran; and
    (2) The veteran is instructed to travel for any of the following 
reasons:
    (i) To report to the chosen school or training facility for the 
purpose of starting training;
    (ii) To report to a prospective employer-trainer for an interview 
prior to induction into training, when there is definite assurance in 
advance of approving the travel that, upon interview, the employer will 
start the veteran in training, if the employer finds the veteran 
acceptable, or
    (iii) To report to the chosen school for a personal interview prior 
to induction into training when:
    (A) The school requires the interview as a condition of admission,
    (B) There is assurance before the travel is approved that the 
veteran's records (school, counseling, etc.) show he or she meets all 
basic requirements for induction under Sec. 21.282; and
    (C) The veteran submits to the school a transcript of his or her 
high school credits and a transcript from any school he or she attended 
following high school.
    (iv) To report to a rehabilitation facility or sheltered workshop;
    (v) To return to his or her home from the training or rehabilitation 
facility when:
    (A) Services are not available for a period of 30 days or more 
(including summer vacation periods), and
    (B) Travel from his or her home to the training or rehabilitation 
facility was at government expense;
    (vi) To return to the training or rehabilitation facility from his 
or her home, when:
    (A) The purpose of the travel is to continue the rehabilitation 
program, and
    (B) Travel from the training or rehabilitation facility to the 
veteran's home was at government expense;
    (vii) To return to the point from which he or she was transported at 
government expense, upon being placed

[[Page 202]]

in ``discontinued'' or ``interrupted'' status for any reason, except 
abandonment of training by the veteran without good reason;
    (viii) To report to a place of prearranged satisfactory employment 
upon completion of vocational rehabilitation for the purpose of 
beginning work;
    (ix) To return to his or her home from the place of training 
following rehabilitation to the point of employability, when suitable 
employment is not available;
    (x) To return from the place of training to the veteran's prior 
location, when VA could have approved travel to the place of training at 
government expense, but did not issue the necessary travel 
authorization; and
    (xi) To report to a place to take a scheduled examination required 
to practice the trade or profession for which the veteran has been 
trained. This travel shall be limited to points within the state in 
which the veteran has pursued his or her training or, if the veteran 
returned to the state from which he or she was sent to pursue training, 
he or she may be sent at government expense to a place within that state 
to take the examination. If there is more than one place within the 
state at which the veteran may take the examination, travel shall be 
limited to the nearest place.


(Authority: 38 U.S.C. 111)

    (c) Approval of intraregional transfer. Intraregional travel must be 
approved by the case manager.


(Authority: 38 U.S.C. 3104(a)(13))

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.372  Interregional transfer at government expense.

    (a) Introduction. A veteran may need to transfer from the 
jurisdiction of one VA facility to another in order to accomplish 
rehabilitation. This section states the conditions which will permit the 
transfer to be made at government expense. Authorization of travel is 
limited to the veteran's transportation, and does not include 
transportation for the veteran's dependents or for moving personal 
effects.


(Authority: 38 U.S.C. 111, 3104(a)(13))

    (b) Conditions which permit interregional transfers at government 
expense. A veteran may be provided travel at government expense when it 
has been determined that such travel is necessary to accomplish 
rehabilitation. VA will authorize an interregional transfer at 
government expense only to allow the veteran:
    (1) To enter training in the nearest satisfactory facility if:
    (i) The nearest satisfactory facility is within the jurisdiction of 
another VA facility; or
    (ii) There are no satisfactory facilities within the jurisdiction of 
the facility in which the veteran resides.
    (2) To enter training in the state in which the veteran has long-
standing family and social ties, and in which he or she plans to live 
following rehabilitation;
    (3) To report to an employer-trainer when all necessary steps have 
been taken to establish an on-job training program;
    (4) To report to rehabilitation facility or sheltered workshop;
    (5) To return to his or her home from the place of training when:
    (i) Training is not available for a period of 30 days or more 
(including summer vacation periods), and
    (ii) Travel from his or her home to the place of training or 
rehabilitation services was at government expense;
    (6) To return to the place of training or rehabilitation services 
from his or her home, when;
    (i) The purpose of the travel is to continue training or 
rehabilitation services; and
    (ii) Travel from the place of training or rehabilitation services to 
the veteran's home was at government expense;
    (7) To return to the point from which he or she was transferred at 
government expense, upon being assigned to ``discontinued'' or 
``interrupted'' status, for any reason, except abandonment of training 
by the veteran without good reason;
    (8) To report to a place of prearranged satisfactory employment or

[[Page 203]]

for a prearranged employment interview following completion of his or 
her program of vocational rehabilitation, when:
    (i) There is no satisfactory opportunity for employment in the 
veteran's occupation within the jurisdiction of the facility which has 
jurisdiction over his or her residence, and
    (ii) The veteran has a serious employment handicap.
    (9) To return to his or her home, from which he or she was 
transferred at government expense to pursue training, when, upon 
completion of his or her course, satisfactory employment is not 
available;
    (10) To return to the location from which he or she traveled without 
authorization because VA did not issue the necessary travel 
authorization on a timely basis.


(Authority: 38 U.S.C. 111)

    (c) Approval of interregional transfer. Interregional travel must be 
approved by the case manager.


(Authority: 38 U.S.C. 3104(a)(13))



Sec. 21.374  Authorization for travel of attendants.

    (a) Travel for attendants. The services of an attendant to accompany 
a veteran while traveling for rehabilitation purposes may be provided 
when such services are necessitated by the severity of the veteran's 
disability. Attendants may only be used to enable a veteran to attend 
appointments for initial evaluation, counseling, or intraregional or 
interregional travel at government expense under Sec. 21.370 and Sec. 
21.372.


(Authority: 38 U.S.C. 111)

    (b) Attendants not employed by the Federal government. (1) VA may 
authorize persons not in regular civilian employment of the Federal 
government to act as attendants. Payment of travel expenses for 
attendants will be authorized on the same basis as for the veteran the 
attendant is accompanying. VA:
    (i) Will furnish the attendant with common-carrier transportation, 
meal and lodging expenses; or
    (ii) Will grant the attendant a mileage allowance in lieu of 
furnishing the assistance cited in paragraph (b)(1)(i) of this section.
    (2) VA will not pay the attendant a fee if he or she is a relative 
of the veteran. A relative, for this purpose, is a person who by blood 
or marriage is the veteran's
    (i) Spouse,
    (ii) Parent,
    (iii) Child,
    (iv) Brother,
    (v) Sister,
    (vi) Uncle,
    (vii) Aunt,
    (viii) Niece, or
    (ix) Nephew.
    (c) Attendant employed by the Federal government. (1) VA may 
authorize a person in the regular civilian employment of the Federal 
government to act as an attendant. When assigned, the attendant:
    (i) Will be entitled to transportation and expenses, or
    (ii) May be allowed per diem in place of subsistence in accordance 
with the provisions of the Federal Travel Regulations (5 U.S.C. Chapter 
57).
    (2) VA will pay no fee to civilian employees of the Federal 
government who act as attendants.

[49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985]



Sec. 21.376  Travel expenses for initial evaluation and counseling.

    When VA asks a disabled veteran to report to a designated place for 
an initial evaluation, reevaluation or counseling (including personal or 
vocational adjustment counseling), the veteran will travel to and from 
the place of evaluation and counseling at government expense. When a 
veteran, because of a severe disability, requires the services of an 
attendant while traveling, VA will authorize payment of travel expenses 
for the attendant under the provisions of Sec. 21.374.


(Authority: 38 U.S.C. 111)

[[Page 204]]

                   Personnel Training and Development



Sec. 21.380  Establishment of qualifications for personnel providing 
assistance under Chapter 31.

    (a) General. Notwithstanding any other provision of law or 
regulation, VA shall establish qualification standards for VBA personnel 
providing evaluation, rehabilitation, and case management services to 
eligible veterans under chapter 31, including:
    (1) Counseling psychologists;
    (2) Vocational rehabilitation specialists; and
    (3) Other staff providing professional and technical assistance.
    (b) Rehabilitation Act of 1973. VA shall consider qualification 
standards established for comparable personnel under the Rehabilitation 
Act of 1973, when setting agency standards.

(Authority: 38 U.S.C. 3118(c))



Sec. 21.382  Training and staff development for personnel providing 
assistance under Chapter 31.

    (a) General. VA shall provide a program of ongoing professional 
training and development for staff of the VR&E Service engaged in 
providing rehabilitation services under chapter 31. The objective of 
such training shall be to insure that rehabilitation services for 
disabled veterans are provided in accordance with the most advanced 
knowledge, methods, and techniques available for the rehabilitation of 
disabled persons. The areas in which training and development services 
may be provided to enhance staff skills include:
    (1) Evaluation and assessment:
    (2) Medical aspects of disability;
    (3) Psychological aspects of disability;
    (4) Counseling theory and techniques;
    (5) Personal and vocational adjustment;
    (6) Occupational information;
    (7) Placement processes and job development;
    (8) Special considerations in rehabilitation of the seriously 
disabled;
    (9) Independent living services;
    (10) Resources for training and rehabilitation; and
    (11) Utilizing research findings and professional publications.


(Authority: 38 U.S.C. 3118)

    (b) Training and development resources. For the purpose of carrying 
out the provisions of paragraph (a) of this section VA may:
    (1) Employ the services of consultants;
    (2) Make grants to and contract with public and private agencies, 
including institutions of higher learning, to conduct workshop and 
training activities;
    (3) Authorize individual training at institutions of higher learning 
and other appropriate facilities; and
    (4) Utilize chapter 41 of title 5, U.S.C., and related instructions 
to provide training and staff development activities on a group and 
individual basis.


(Authority: 38 U.S.C. 3118(b))

    (c) Interagency coordination. VA shall coordinate with the 
Commissioner of the Rehabilitation Services Administration and the 
Assistant Secretary for Veterans' Employment in planning and carrying 
out personnel training in areas of mutual programmatic concern.


(Authority: 38 U.S.C. 3118(c))

              Rehabilitation Research and Special Projects



Sec. 21.390  Rehabilitation research and special projects.

    (a) General. VA shall carry out an ongoing program of activities for 
the purpose of advancing the knowledge, methods, techniques, and 
resources available for use in rehabilitation programs for veterans. For 
this purpose, VA may conduct research and development, provide support 
for research and development, or both conduct and provide support for 
the development and conduct of:
    (1) Studies and research concerning the psychological, educational, 
social, vocational, industrial, and economic aspects of rehabilitation; 
and
    (2) Projects which are designed to increase the resources and 
potential for accomplishing the rehabilitation of disabled veterans.


(Authority: 38 U.S.C. 3119(a))


[[Page 205]]


    (b) Grants. VA may make grants to, or contract with, public on 
nonprofit agencies, including institutions of higher learning, to carry 
out the provisions of paragraph (a) of this section.


(Authority: 38 U.S.C. 3119(b))

    (c) Research by Vocational Rehabilitation and Employment (VR&C) 
staff members. VA will encourage research by VR&C staff members. This 
research will address problems affecting service delivery, initiation 
and continuation in rehabilitation programs, and other areas directly 
affecting the quality of VR&C services to veterans.


(Authority: 38 U.S.C. 3119(a))

    (d) Interagency coordination. VA shall cooperate with the 
Commissioner of the Rehabilitation Services Administration and the 
Director of the National Institute of Handicapped Research in the 
Department of Education, the Assistant Secretary for Veterans' 
Employment in the Department of Labor, and the Secretary of Health and 
Human Services regarding rehabilitation studies, research, and special 
projects of mutual programmatic concern.


(Authority: 38 U.S.C. 3119(c))

[49 FR 40814, Oct. 18, 1984, as amended at 62 FR 17710, Apr. 11, 1997]

             Veterans' Advisory Committee on Rehabilitation



Sec. 21.400  Veterans' Advisory Committee on Rehabilitation.

    (a) General. The Secretary shall appoint an advisory committee to be 
known as the Veterans' Advisory Committee on Rehabilitation.
    (b) Purpose. The purposes of the Veterans' Advisory Committee on 
Rehabilitation, hereafter referred to as the committee, are to:
    (1) Assess the rehabilitation needs of service and nonservice-
disabled veterans; and
    (2) Review the programs and activities of VA designed to meet such 
needs;


(Authority: 38 U.S.C. 3121(c))

    (c) Members. The committee shall include:
    (1) Members of the general public;
    (2) Appropriate representation of veterans with service-connected 
disabilities; and
    (3) Persons who have distinguished themselves in the public and 
private sectors in the fields of rehabilitation, and employment and 
training programs.
    (d) Members terms. The Secretary shall appoint members of the 
committee for three-year terms. Members may be reappointed for 
additional three-year terms.
    (e) Chairperson. The Secretary will designate one of the members of 
the committee to chair the committee.
    (f) Ex-officio members. The committee shall also include ex-officio 
members named by the following agencies. The ex-officio members shall 
include one representative from:
    (1) The Veterans Health Services and Research Administration;
    (2) The Veterans Benefits Administration;
    (3) The Rehabilitation Services Administration and one from the 
National Institute for Handicapped Research of the Department of 
Education; and
    (4) The Assistant Secretary of Labor for Veterans' Employment of the 
Department of Labor.


(Authority: 38 U.S.C. 3121(a))



Sec. 21.402  Responsibilities of the Veterans' Advisory Committee on 
Rehabilitation.

    (a) Consultation with the Secretary. The Secretary shall regularly, 
but not less than twice yearly, consult with and seek the advice of the 
committee with respect to the administration of veterans' rehabilitation 
programs authorized under Title 38, United States Code.
    (b) Submission of an annual report. The committee shall:
    (1) Submit to the Secretary an annual report on the rehabilitation 
programs and activities of the VA; and
    (2) Submit such other reports and recommendations to the Secretary 
as the committee determines appropriate.
    (c) Contents of the committee's annual report. The committee's 
annual report shall include:

[[Page 206]]

    (1) An assessment of the rehabilitation needs of veterans; and
    (2) A review of the programs and activities of VA designed to meet 
needs identified in paragraph (c)(1) of this section.
    (d) Secretary's annual report. The findings of the committee shall 
be incorporated in the Secretary's annual report submitted to the 
Congress under 38 U.S.C. 529. In addition the Secretary shall submit, 
together with this annual report, a copy of all reports and 
recommendations of the committee submitted to the Secretary since the 
previous annual report was submitted to the Congress.

(Authority: 38 U.S.C. 3121(c))

                 Additional Administrative Consideration



Sec. 21.410  Delegation of authority.

    The Secretary delegates authority to the Under Secretary for 
Benefits to make findings and decisions under 38 U.S.C. chapter 31 and 
regulations, precedents, and instructions that affect vocational 
rehabilitation services for disabled veterans. The Under Secretary for 
Benefits may further delegate this authority to supervisory and non-
supervisory Vocational Rehabilitation and Employment staff members.

(Authority: 38 U.S.C. 512(a))

[62 FR 17710, Apr. 11, 1997]



Sec. 21.412  Finality of decisions.

    (a) Facility of original jurisdiction. The decision of a VA facility 
in a given veteran's case:
    (1) Will be final and binding upon all field stations of VA as to 
conclusions based on evidence on file at that time; and
    (2) Will not be subject to revision on the same factual basis except 
by duly constituted appellate authorities or except as provided in 
Sec. Sec. 21.410 and 21.414. (See Sec. Sec. 19.153, 19.154, and 
19.155.


(Authority: 38 U.S.C. 512(a), 7103)

    (b) Adjudicative determinations. Current determinations of line of 
duty, character of discharge, relationship, and other pertinent elements 
affecting eligibility for training and rehabilitation services or 
payment of subsistence allowance under Chapter 31, made by an 
adjudicative activity by application of the same criteria and based on 
the same facts, are binding upon all other adjudicative activities in 
the absence of clear and unmistakable error.


(Authority: 38 U.S.C. 512(a))



Sec. 21.414  Revision of decision.

    The revision of a decision on which an action is based is subject to 
the following regulations:
    (a) Clear and unmistakable error, Sec. 3.105(a);
    (b) Difference of opinion, Sec. 3.105(b);
    (c) Character of discharge, Sec. 3.105(c);
    (d) Severance of service-connection, Sec. 3.105(d);
    (e) Reduction to less than compensable evaluation, Sec. 3.105(e). 
(See Sec. Sec. 21.48, 21.322, and 21.324)

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

                          Informing the Veteran



Sec. 21.420  Informing the veteran.

    (a) General. VA will inform a veteran in writing of findings 
affecting receipt of benefits and services under Chapter 31. This 
includes veterans:
    (1) Requesting benefits and services; or
    (2) In receipt of benefits and services.
    (b) Notification. (1) Each notification should include the decision 
or finding, the reasons, including fact and law, for the decision, the 
effective date of the decision or finding; and
    (2) The veteran's appeal rights, if any.
    (c) Adverse action. An adverse action is one, other than an interim 
action such as a suspension of benefits pending development, which:
    (1) Denies Chapter 31 benefits, when such benefits have been 
requested;
    (2) Reduces or otherwise diminishes benefits being received by the 
veteran; or
    (3) Terminates receipt of benefits for reasons other than scheduled 
interruptions which are a part of the veteran's plan.
    (d) Prior notification of adverse action. VA shall give the veteran 
a period of at least 30 days to indicate his or her disagreement with an 
adverse action

[[Page 207]]

other than one which arises as a consequence of a change in training 
time or other such alteration in circumstances. If the veteran 
disagrees, he or she shall be given the opportunity, before appealing 
the adverse action as provided in Sec. 21.59 of this part, to:
    (1) Meet informally with a representative of VA;
    (2) Review the basis for VA decision, including any relevant written 
documents or material; and
    (3) Submit to VA any material which he or she may have relevant to 
the decision.

(Authority: 38 U.S.C. 3102)

[49 FR 40814, Oct. 18, 1984, as amended at 54 FR 40872, Oct. 4, 1989]



Sec. 21.422  Reduction in subsistence allowance following the loss of a 
dependent.

    (a) Notice of reduction required when a veteran loses a dependent. 
(1) Except as provided in paragraph (a)(2) of this section, VA will not 
reduce an award of subsistence allowance following the veteran's loss of 
a dependent unless:
    (i) VA has notified the veteran of the adverse action, and
    (ii) VA has provided the veteran with a period of 60 days in which 
to submit evidence for the purpose of showing that subsistence allowance 
should not be reduced.
    (2) When the reduction is based solely on written, factual, 
unambiguous information as to dependency provided by the veteran or his 
or her fiduciary with knowledge or notice that the information would be 
used to determine the monthly rate of subsistence allowance;
    (i) VA is not required to send a pre-reduction notice as stated in 
paragraph (a)(1) of this section, but;
    (ii) VA will send notice contemporaneous with the reduction in 
subsistence allowance.


(Authority: 38 U.S.C. 5112, 5113)

    (b) Pre-reduction notice. Where a reduction in subsistence allowance 
is proposed by reason of information concerning dependency received from 
a source other than the veteran, VA will:
    (1) Prepared a proposal for the reduction of subsistence allowance, 
setting forth material facts and reasons;
    (2) Notify the veteran at his or her latest address of record of the 
proposed action;
    (3) Furnish detailed reasons for the proposed reduction;
    (4) Inform the veteran that he or she has an opportunity for a 
predetermination hearing, provided that VA receives a request for such a 
hearing within 30 days from the date of the notice; and
    (5) Give the veteran 60 days for the presentation of additional 
evidence to show that the subsistence allowance should be continued at 
its present level.


(Authority: 38 U.S.C. 5112, 5113)

    (c) Predetermination hearing. (1) If VA receives a timely request 
for a predetermination hearing as indicated in paragraph (b)(4) of this 
section:
    (i) VA will notify the veteran in writing of the date, time and 
place for the hearing; and
    (ii) Payments of subsistence allowance will continue at the 
previously established level pending a final determination concerning 
the proposed reduction.
    (2) The hearing will be conducted by a VA employee who:
    (i) Did not participate in the preparation of the proposal to reduce 
the veteran's subsistence allowance, and
    (ii) Will bear the decision-making responsibility.


(Authority: 38 U.S.C. 5112, 5113)

    (d) Final action. VA will take final action following the 
predetermination procedures specified in paragraph (c) of this section.
    (1) If a predetermination hearing was not requested or if the 
veteran failed to report for a scheduled predetermination hearing, the 
final action will be based solely upon the evidence of record at the 
expiration of 60 days.
    (2) If a predetermination hearing was conducted, VA will base final 
action upon:
    (i) Evidence presented at the hearing;
    (ii) Evidence contained in the claims file at the time of the 
hearing; and

[[Page 208]]

    (iii) Any additional evidence obtained following the hearing 
pursuant to necessary development.
    (3) Whether or not a predetermination hearing was conducted, a 
written notice of the final action shall be issued to the veteran 
setting forth the reasons for the decison, and the evidence upon which 
it is based. The veteran will be informed of his or her appellate rights 
and right of representation. (For information concerning the conduct of 
the hearing see Sec. 3.103 (c) and (d) of this chapter).
    (4) When a reduction of subsistence allowance is found to be 
warranted following consideration of any additional evidence submitted, 
the effective date of the reduction or discontinuance shall be as 
specified under the provisions of Sec. 21.324 of this part.


(Authority: 38 U.S.C. 5112, 5113)

[54 FR 40872, Oct. 4, 1989]

                             Accountability



Sec. 21.430  Accountability for authorization and payment of training and 
rehabilitation services.

    (a) General. VA shall maintain policies and procedures which provide 
accountability in the authorization and payment of program costs for 
training and rehabilitation services. The procedures established under 
this section are applicable to all program costs except subsistence 
allowance (or the optional allowance at Chapter 34 rates). Policies and 
procedures governing payment of subsistence allowance are governed by 
Sec. Sec. 21.260 through 21.276, and Sec. Sec. 21.320 through 21.334.
    (b) Determining necessary costs for training and rehabilitation 
services. The estimates of program costs during a calendar year or 
lesser period shall be based upon the services necessary to carry out 
the veteran's rehabilitation plan during that period (Sec. Sec. 21.80 
through 21.98). The estimates will be developed by the VBA case manager. 
If additional approval is required, the VBA case manager shall secure 
such additional approval prior to authorization of services.
    (c) Vocational Rehabilitation and Employment (VR&C) Officer's review 
of program costs. The VR&C Officer will review the program costs for the 
services in paragraphs (c)(1) through (c)(3) of this section if the case 
manager's program cost estimate for a calendar year exceeds $25,000. The 
VR&C Officer may not delegate this responsibility. The case manager will 
neither sign a rehabilitation plan nor authorize expenditures before the 
VR&C Officer approves the program costs. The services subject to this 
review are:
    (1) Providing supplies to help establish a small business;
    (2) A period of extended evaluation; or
    (3) A program of independent living services.

(Authority: 38 U.S.C. 3115(b)(4))

    Cross-References: See Sec. 21.156. Other incidental goods and 
services. Sec. 21.258. Special assistance for veterans in self-
employment.

[49 FR 40814, Oct. 18, 1984, as amended at 51 FR 45767, Dec. 22, 1986; 
55 FR 25975, June 26, 1990; 62 FR 17710, Apr. 11, 1997]



      Subpart B_Claims and Applications for Educational Assistance

    Authority: 38 U.S.C. 501(a), ch. 51, unless otherwise noted.

    Editorial Note: The regulations formerly appearing under this 
subpart were revoked at 30 FR 14103, Nov. 9, 1965. That order provided 
in part, ``these regulations remain in force insofar as they are 
pertinent to any problems, appeals, litigation, or determinations of 
liability of educational institutions or training establishments for 
overpayments under 38 U.S.C. 1666.''

                                 Claims



Sec. 21.1029  Definitions.

    These definitions apply to this subpart, and to subparts C, D, G, H, 
K, and L of this part.
    (a) Abandoned claim. A claim is an abandoned claim if:
    (1) In connection with a formal claim VA requests that the claimant 
furnish additional evidence, and the claimant--
    (i) Does not furnish that evidence within one year of the date of 
the request; and

[[Page 209]]

    (ii) Does not show good cause why the evidence could not have been 
submitted within one year of the date of the request; or
    (2) In connection with an informal claim, VA requests a formal 
claim, and--
    (i) VA does not receive the formal claim within one year of the date 
of request; and
    (ii) The claimant does not show good cause why he or she could not 
have filed the formal claim in sufficient time for VA to have received 
it within one year of the date of the request.


(Authority: 38 U.S.C. 5103(a))

    (b) Date of claim. The date of claim is the date on which a valid 
claim or application for educational assistance is considered to have 
been filed with VA, for purposes of determining the commencing date of 
an award of that educational assistance.
    (1) If an informal claim is filed and VA receives a formal claim 
within one year of the date VA requested it, or within such other period 
of time as provided by Sec. 21.1032, the date of claim, subject to the 
provisions of paragraph (b)(3) of this section, is the date VA received 
the informal claim.
    (2) If a formal claim is filed other than as described in paragraph 
(b)(1) of this section, the date of claim, subject to the provisions of 
paragraph (b)(3) of this section, is the date VA received the formal 
claim.
    (3) If a formal claim itself is abandoned and a new formal or 
informal claim is filed, the date of claim is as provided in paragraph 
(b)(1) or (b)(2) of this section, as appropriate.


(Authority: 38 U.S.C. 5103)

    (c) Formal claim. A claim is a formal claim when the claimant (or 
his or her authorized representative) files the claim with VA, and--
    (1) The claim is a claim for--
    (i) Educational assistance;
    (ii) An increase in educational assistance; or
    (iii) An extension of the eligibility period for receiving 
educational assistance; and
    (2) If there is a form (either paper or electronic) prescribed under 
this part, the claim is filed on that form.


(Authority: 38 U.S.C. 5101(a))

    (d) Informal claim. (1) If a form (either paper or electronic) has 
been prescribed under this part to use in claiming the benefit sought, 
the term informal claim means--
    (i) Any communication from an individual, or from an authorized 
representative or a Member of Congress on that individual's behalf that 
indicates a desire on the part of the individual to claim or to apply 
for VA-administered educational assistance; or
    (ii) A claim from an individual or from an authorized representative 
on that individual's behalf for a benefit described in paragraph 
(c)(1)(i) of this section that is filed in a document other than in the 
prescribed form.
    (2) If a form (either paper or electronic) has not been prescribed 
to use in claiming the benefit sought, the term informal claim means any 
communication, other than a formal claim, from an individual, or from an 
authorized representative or a Member of Congress on that individual's 
behalf that indicates a desire on the part of the individual to claim or 
to apply for VA-administered educational assistance.
    (3) When VA requests evidence in connection with a claim, and the 
claimant submits that evidence to VA after having abandoned the claim, 
the claimant's submission of the evidence is an informal claim.
    (4) The act of enrolling in an approved school is not an informal 
claim.
    (5) VA will not consider a communication received from a service 
organization, an attorney, or agent to be an informal claim if a valid 
power of attorney, executed by the claimant, is not in effect at the 
time the communication is written.


(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3471, 3513, 
5101(a), 5102, 5901)


[[Page 210]]


    (e) VA. The term VA means the United States Department of Veterans 
Affairs.


(Authority: 38 U.S.C. 301)

[64 FR 23770, May 4, 1999]



Sec. 21.1030  Claims.

    An individual must file a formal claim for educational assistance 
for pursuit of a program of education, indicating the proposed place of 
training, the school or training establishment, the objective of the 
program of education, and such other information as the Secretary may 
require. A servicemember also must consult with his or her service 
education officer before filing a formal claim for educational 
assistance.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3034(a), 3241(a), 3471, 3513, 
5101(a))

(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-0596.)

[64 FR 23771, May 4, 1999]



Sec. 21.1031  VA responsibilities when a claim is filed.

    (a) VA will furnish forms. VA will furnish all necessary claim 
forms, instructions, and, if appropriate, a description of any 
supporting evidence required upon receipt of an informal claim.


(Authority: 38 U.S.C. 5102)

    (b) Request for additional evidence. If a formal claim for 
educational assistance is incomplete, or if VA requires additional 
evidence or information to adjudicate the claim, VA will notify the 
claimant of the evidence and/or information necessary to complete or 
adjudicate the claim and of the time limit provisions of Sec. 
21.1032(a).


(Authority: 38 U.S.C. 5103)

[64 FR 23771, May 4, 1999]



Sec. 21.1032  Time limits.

    The provisions of this section are applicable to informal claims and 
formal claims.
    (a) Failure to furnish form, information, or notice of time limit. 
VA's failure to give a claimant or potential claimant any form or 
information concerning the right to file a claim or to furnish notice of 
the time limit for the filing of a claim will not extend the time 
periods allowed for these actions.


(Authority: 38 U.S.C. 5101, 5113)

    (b) Notice of time limit for filing evidence. If a claimant's claim 
is incomplete, VA will notify the claimant of the evidence necessary to 
complete the claim. Unless payment of educational assistance is 
permitted by paragraph (e) of this section, if the evidence is not 
received within one year from the date of such notification, VA will not 
pay educational assistance by reason of that claim.


(Authority: 38 U.S.C. 5103)

    (c) Time limit for filing a claim for an extended period of 
eligibility under 38 U.S.C. chapter 30, 32, or 35. VA must receive a 
claim for an extended period of eligibility provided by Sec. 21.3047, 
Sec. 21.5042, or Sec. 21.7051 by the later of the following dates.
    (1) One year from the date on which the spouse's, surviving 
spouse's, or veteran's original period of eligibility ended; or
    (2) One year from the date on which the spouse's, surviving 
spouse's, or veteran's physical or mental disability no longer prevented 
him or her from beginning or resuming a chosen program of education.


(Authority: 38 U.S.C. 3031(d), 3232(a), 3512)

    (d) Time limit for filing for an extension of eligibility due to 
suspension of program (38 U.S.C. chapter 35).
    VA must receive a claim for an extended period of eligibility due to 
a suspension of an eligible child's program of education as provided in 
Sec. 21.3043 by the later of the following dates.
    (1) One year from the date on which the child's original period of 
eligibility ended; or
    (2) One year from the date on which the condition that caused the 
suspension of the program of education ceased to exist.


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

    (e) Extension for good cause. (1) VA may extend for good cause a 
time limit

[[Page 211]]

within which a claimant or beneficiary is required to act to perfect a 
claim or challenge an adverse VA decision. VA may grant such an 
extension only when the following conditions are met:
    (i) When a claimant or beneficiary requests an extension after 
expiration of a time limit, he or she must take the required action 
concurrently with or before the filing of that request; and
    (ii) The claimant or beneficiary must show good cause as to why he 
or she could not take the required action during the original time 
period and could not have taken the required action sooner.
    (2) Denials of time limit extensions are separately appealable 
issues.


(Authority: 38 U.S.C. 5101, 5113)

    (f) Computation of time limit. (1) In computing the time limit for 
any action required of a claimant or beneficiary, including the filing 
of claims or evidence requested by VA, VA will exclude the first day of 
the specified period, and will include the last day. This rule is 
applicable in cases in which the time limit expires on a workday. When 
the time limit would expire on a Saturday, Sunday, or holiday, the VA 
will include the next succeeding day in the computation.
    (2) The first day of the specified period referred to in paragraph 
(f)(1) of this section will be the date of the letter of notification to 
the claimant or beneficiary for purposes of computing time limits. As to 
appeals, see Sec. Sec. 20.302 and 20.305 of this chapter.


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

[64 FR 23771, May 4, 1999]



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

    Authority: 38 U.S.C. 501(a), 512, 3500-3566, unless otherwise noted.

                                 General



Sec. 21.3001  Delegation of authority.

    Except as otherwise provided, authority is delegated to the Under 
Secretary for Benefits and to supervisory or administrative personnel 
within the jurisdiction of the Education Service, Veterans Benefits 
Administration, designated by him or her to make findings and decisions 
under 38 U.S.C. chapter 35 and the applicable regulations, precedents 
and instructions, as to the program authorized by this subpart.


(Authority: 38 U.S.C. 512(a))

[61 FR 26108, May 24, 1996]



Sec. 21.3002  Administration of Survivors' and Dependents' Educational 
Assistance Program.

    Subpart D of this part applies to the Survivors' and Dependents' 
Educational Assistance Program, unless the provisions of a section in 
that subpart are explicitly limited to one or more of the other 
educational assistance programs VA administers.

(Authority: 38 U.S.C. 501, 3501-3566)

[61 FR 26108, May 24, 1996]



Sec. 21.3020  Educational assistance.

    The program of educational assistance under 38 U.S.C. Chapter 35 
captioned Survivors' and Dependents' Educational Assistance, may be 
referred to as Dependents' Educational Assistance.


(Authority: Sec. 309, 90 Stat. 2383)

    (a) General. A program of education or special restorative training 
may be authorized for an eligible person who meets the definition 
contained in Sec. 21.3021.
    (b) 45 months limitation. Educational assistance may not exceed a 
period of 45 months, or the equivalent in part-time training, unless it 
is determined that a longer period is required for special restorative 
training under the circumstances outlined in Sec. 21.3300(c) or except 
as specified in Sec. 21.3044(c).


(Authority: 38 U.S.C. 3511(a), 3533, 3541(b))

    (c) Courses in foreign countries. A course to be pursued at a school 
not located in a State or in the Philippines may not be approved except 
under the circumstances outlined in Sec. 21.4260.

[30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 34 
FR 841, Jan. 18, 1969; 38 FR 14931, June 7, 1973; 43 FR 35289, Aug. 9, 
1978]

[[Page 212]]



Sec. 21.3021  Definitions.

    (a) Eligible person means:
    (1) A child of a:
    (i) Veteran who died of a service-connected disability.
    (ii) Veteran who died while having a disability evaluated as total 
and permanent in nature resulting from a service-connected disability.
    (iii) Veteran, serviceman or servicewoman who has a total disability 
permanent in nature resulting from a service-connected disability.
    (iv) Person who is on active duty as a member of the Armed Forces 
and who now is, and, for a period of more than 90 days, has been, listed 
by the Secretary concerned as missing in action, captured in line of 
duty by a hostile force, or forcibly detained or interned in line of 
duty by a foreign government or power.
    (2) The surviving spouse of a:
    (i) Veteran who died of a service-connected disability.
    (ii) Veteran who died while having a disability evaluated as total 
and permanent in nature resulting from a service-connected disability, 
arising out of active military, naval or air service after the beginning 
of the Spanish-American War. (See Sec. Sec. 3.6(a) and 3.807 of this 
chapter.)
    (3) The spouse of a:
    (i) Veteran, serviceman or servicewoman who has a total disability 
permanent in nature resulting from a service-connected disability.
    (ii) Person who is on active duty as a member of the Armed Forces 
and who now is, and, for a period of more than 90 days, has been, listed 
by the Secretary concerned as missing in action, captured in line of 
duty by a hostile force, or forcibly detained or interned in line of 
duty by a foreign government or power.
    (b) Child means a son or daughter of a veteran as defined in Sec. 
3.807(d) of this chapter. The term includes a child of a Philippine 
Commonwealth Army veteran and a Philippine Scout (designated as a New 
Philippine Scout under 38 U.S.C. 3566(b)), as defined in Sec. 3.40(b), 
(c), or (d) of this chapter, but educational assistance allowance may 
not be authorized based on such service for any period before September 
30, 1966.
    (c) Wife and widow, spouse and surviving spouse. The terms wife and 
widow mean an individual as defined in Sec. 3.807(d) of this chapter 
and the terms spouse and surviving spouse shall have the same respective 
meaning when used in the regulations in part 21, Title 38, Code of 
Federal Regulations. Educational assistance allowance may not be 
authorized for any such individuals for any period before December 1, 
1968.


(Authority: 38 U.S.C. 3500, 3501, and 3511)

    (d) Parent or guardian means a natural or adoptive parent, a 
fiduciary legally appointed by a court of competent jurisdiction or any 
person who is determined to be otherwise legally vested with the care of 
the eligible person (38 U.S.C. 3501(a)(4)) or it may be the eligible 
person if he or she has attained majority under laws applicable in his 
or her State of residence as shown on the application and is under no 
known legal disability. (38 U.S.C. 3501(b)) The eligible person may be 
designated as the person by whom required actions may be taken even 
though he or she has not attained majority, or having attained majority, 
is under a legal disability, when it is determined that to do otherwise 
would not be in his or her best interest, would result in undue delay or 
would not be administratively feasible. Where necessary to protect his 
or her interest and there is reason why the eligible person should not 
act for himself or herself, some other individual may be designated as 
the person by whom required actions should be taken.


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

    (e) Armed Forces, as to service by the eligible person, means the 
U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, including the 
Reserve components of each, the National Guard of the United States and 
the Air National Guard of the United States. (38 U.S.C. 3501 (a)(3) and 
(d) and 3512(a)) Effective December 31, 1970, the term includes the 
National Oceanic and Atmospheric Administration, the Environmental 
Science Services Administration and the Coast and Geodetic

[[Page 213]]

Survey, as to full-time duty of officers commissioned therein.


(Authority: 38 U.S.C. 101(21)(C))

    (f) Duty with the Armed Forces, as to service by the eligible 
person, means active duty, active duty for training for a period of 6 or 
more consecutive months, or an initial period of active duty for 
training of not less than 3 months or more than 6 months in the Ready 
Reserve. (38 U.S.C. 3501(a)(3) and (d), 3512(a)) See Sec. Sec. 21.3041 
and 21.3042.
    (g) State means each of the several States, territories, and 
possessions of the United States, the District of Columbia, and the 
Commonwealth of Puerto Rico, and the Canal Zone. (38 U.S.C. 101(20)) 
(Although the Republic of the Philippines is not included in the 
definition of a State, eligible persons may pursue courses of training 
in that country.)
    (h) Program of education. The term program of education means any 
curriculum or any combination of unit courses or subjects pursued at an 
educational institution which is generally accepted as necessary to 
fulfill the requirements for the attainment of a predetermined and 
identified educational, professional, or vocational objective.


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

    (i) Educational objective. An educational objective is one that 
leads to the awarding of a diploma, degree, or certificate which 
reflects educational attainment.


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

    (j) Professional or vocational objective. A professional or 
vocational objective is one that leads to an occupation. It may include 
educational objectives essential to prepare for the chosen occupation. 
When a program consists of a series of courses not leading to an 
educational objective, such courses must be directed toward attainment 
of a designated professional or vocational objective.


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

    (k) School, educational institution, institution. The terms school, 
educational institution and institution mean:
    (1) A vocational school or business school;
    (2) A junior college, teachers' college, college, normal school, 
professional school, university, or scientific or technical institution;
    (3) A public or private secondary school;
    (4) A training establishment as defined in Sec. 21.4200(c); or
    (5) An institution that provides specialized vocational training, 
generally recognized as on the secondary school level or above, for 
people with mental or physical disabilities.


(Authority: 38 U.S.C. 3501(a)(6), 3535)

    (l) Disabling effects of chronic alcoholism. (1) The term disabling 
effects of chronic alcoholism means alcohol-induced physical or mental 
disorders or both, such as habitual intoxication, withdrawal, delirium, 
amnesia, dementia, and other like manifestations of chronic alcoholism 
which in the particular case:
    (i) Have been medically diagnosed as manifestations of alcohol 
dependency or chronic alcohol abuse; and
    (ii) Are determined to have prevented commencement or completion of 
the affected individual's chosen program of education.
    (2) A diagnosis of alcoholism, chronic alcoholism, alcohol-
dependency, chronic alcohol abuse, etc., in and of itself, does not 
satisfy the definition of this term.
    (3) Injury sustained by an eligible spouse or surviving spouse as a 
proximate and immediate result of activity undertaken by the eligible 
spouse or surviving spouse while physically or mentally unqualified to 
do so due to alcoholic intoxication is not considered a disabling effect 
of chronic alcoholism.


(Authority: 38 U.S.C. 105, 3512(b))

    (m) Additional definitions. The definitions of all terms that are 
defined in Sec. Sec. 21.1029 and 21.4200 but that are not defined in 
this section apply to subpart C of this part.


(Authority: 38 U.S.C. 501, 3501)

    Cross References: Duty periods. See Sec. 3.6 of this chapter.


    Persons included. See Sec. 3.7 of this chapter.

[[Page 214]]


    Philippine and insular forces. See Sec. 3.40 of this chapter.

[36 FR 2508, Feb. 5, 1971, as amended at 38 FR 12110, May 9, 1973; 43 FR 
35290, Aug. 9, 1978; 61 FR 26108, May 24, 1996; 61 FR 29295, June 10, 
1996; 62 FR 51784, Oct. 3, 1997; 64 FR 23771, May 4, 1999]



Sec. 21.3022  Nonduplication--programs administered by VA.

    A person who is eligible for educational assistance under 38 U.S.C. 
chapter 35 and is also eligible for assistance under any of the 
provisions of law listed in this paragraph cannot receive such 
assistance concurrently. The eligible person must elect which benefit he 
or she will receive for the particular period or periods during which 
education or training is to be pursued. The election is subject to the 
conditions specified in Sec. 21.4022 of this part. The provisions of 
law are:
    (a) 38 U.S.C. chapter 30,
    (b) 38 U.S.C. chapter 31,
    (c) 38 U.S.C. chapter 32,
    (d) 38 U.S.C. chapter 34,
    (e) 10 U.S.C. chapter 1606,
    (f) 10 U.S.C. chapter 107,
    (g) Section 903 of the Department of Defense Authorization Act, 
1981,
    (h) The Hostage Relief Act of 1980, and
    (i) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.


(Authority: 38 U.S.C. 3681)

[54 FR 33886, Aug. 17, 1989, as amended at 57 FR 29798, July 7, 1992; 61 
FR 20728, May 8, 1996]



Sec. 21.3023  Nonduplication; pension, compensation, and dependency and 
indemnity compensation.

    (a) Child; age 18. A child who is eligible for educational 
assistance and who is also eligible for pension, compensation or 
dependency and indemnity compensation based on school attendance must 
elect whether he or she will receive educational assistance or pension, 
compensation or dependency and indemnity compensation.
    (1) An election of educational assistance either before or after the 
age of 18 years is a bar to subsequent payment or increased rates or 
additional amounts of pension, compensation or dependency and indemnity 
compensation on account of the child based on school attendance on or 
after the age of 18 years. The bar is equally applicable where the child 
has eligibility from more than one parent.
    (2) Payment of pension, compensation or dependency and indemnity 
compensation to or on account of a child after his or her 18th birthday 
does not bar subsequent payments of educational assistance.
    (3) An election of educational assistance will not preclude the 
allowance of pension, compensation, or dependency and indemnity 
compensation based on school attendance for periods, including vacation 
periods, prior to the commencement of educational assistance.
    (b) Child; under 18 or helpless. Educational assistance allowance or 
special restorative training allowance may generally be paid 
concurrently with pension, compensation or dependency and indemnity 
compensation for a child under the age of 18 years or for a helpless 
child based on the service of one or more parents. Where, however, 
entitlement is based on the death of more than one parent in the same 
parental line, concurrent payments in two or more cases may not be 
authorized if the death of one such parent occurred on or after June 9, 
1960. In the latter cases, an election of educational assistance and 
pension, compensation or dependency and indemnity compensation in one 
case does not preclude a reelection of benefits before attaining age 18 
or while helpless based on the service of another parent in the same 
parental line.
    (c) Child; election. An election by a child under this section must 
be submitted to VA in writing.
    (1) Except as provided in paragraph (c)(2) of this section, an 
election to receive Survivors' and Dependents' Educational Assistance 
(DEA) is final when the eligible child commences a program of education 
under DEA (38 U.S.C. chapter 35). Commencement of a program of education 
under DEA will be deemed to have occurred for VA purposes on the date 
the first payment of DEA educational assistance is made, as evidenced by 
negotiation of the first check or receipt of the first payment by 
electronic funds transfer.
    (2) An election based on erroneous information furnished by an 
authorized

[[Page 215]]

representative of the Department of Veterans Affairs is not considered 
final.
    (3) A child other than a helpless child, whose eligibility was based 
on a finding that the veteran had a permanent total service-connected 
disability and who commenced a program of education under DEA may not 
thereafter qualify as a dependent for disability compensation purposes 
if the veteran is later found to be less than permanently and totally 
disabled, or for pension, compensation or dependency and indemnity 
compensation after the veteran's death.
    (d) Spouse or surviving spouse. Educational assistance allowance may 
be paid for an eligible spouse or surviving spouse concurrently with 
pension, compensation or dependency and indemnity compensation.

(Authority: 38 U.S.C. 3562)

(The information collection requirements in this section have been 
approved by the Office of Management and Budget under control number 
2900-0595)

    Cross References: Discontinuance. See Sec. 3.503(h) of this 
chapter.

    Concurrent payments. See Sec. 3.707 of this chapter.

    Certification. See Sec. 3.807 of this chapter.

[30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 34 
FR 842, Jan. 18, 1969; 40 FR 42879, Sept. 17, 1975; 50 FR 27826, July 8, 
1985; 63 FR 45718, Aug. 27, 1998]



Sec. 21.3024  Nonduplication; Federal Employees' Compensation Act.

    (a) Civilian employment. The provisions of this paragraph are 
applicable to cases where there is eligibility for benefits from the 
Office of Workers' Compensation Programs, under the Federal Employees' 
Compensation Act (FECA) based on the disability or death as a result of 
civilian employment of the veteran from whom eligibility for educational 
assistance is derived.
    (1) Child, spouse or surviving spouse. A person who is eligible for 
educational assistance and is also eligible for Office of Workers' 
Compensation Programs benefits, under the Federal Employees' 
Compensation Act (FECA) must elect which benefit he or she will receive.
    (2) Veteran, spouse and child--surviving spouse and child. An 
eligible person may receive educational assistance notwithstanding that 
the Office of Workers' Compensation Programs benefits under the Federal 
Employees' Compensation Act (FECA) are being paid to a veteran, or 
surviving spouse.
    (3) Election. An election of Office of Workers' Compensation 
Programs benefits, under the Federal employees' Compensation Act (FECA), 
by or for a child filed on or after July 4, 1966, is a bar to subsequent 
payments of Department of Veterans Affairs benefits during the period of 
concurrent eligibility. An election of Office of Workers' Compensation 
Programs benefits under the Federal Employees' Compensation Act (FECA) 
by a surviving spouse filed on or after December 1, 1968, is a bar to 
subsequent payments of Department of Veterans Affairs benefits during 
the period of concurrent eligibility.
    (b) Military service. The provisions of this paragraph are 
applicable to cases where there is eligibility for benefits from Office 
of Workers' Compensation Program, under the Federal Employee's 
Compensation Act (FECA) based on the disability or death as a result of 
military service by the veteran from whom eligibility for educational 
assistance is derived.
    (1) Child, spouse or surviving spouse. A person who is eligible for 
educational assistance and is also eligible for Office of Workers' 
Compensation Programs benefits, under the Federal Employees' 
Compensation Act (FECA) must elect which benefit he or she will receive. 
The election may be made at any time.
    (2) Veteran, spouse and child--surviving spouse and child. An 
eligible person may receive educational assistance notwithstanding that 
the Office of Workers' Compensation Programs benefits, under the Federal 
Employees' Compensation Act (FECA) are being paid to a veteran, or 
surviving spouse.

    Cross Reference: Federal Employees' Compensation. See Sec. 3.708 of 
this chapter.

[40 FR 42879, Sept. 17, 1975, as amended at 50 FR 27826, July 8, 1985]



Sec. 21.3025  Nonduplication; Federal programs.

    Payment of subsistence allowance and special training allowance is 
prohibited to an otherwise eligible person--

[[Page 216]]

    (a) Who is on active duty and is pursuing a course of education 
which is being paid for by the Armed Forces (or by the Department of 
Health and Human Services in the case of the Public Health Service); or
    (b) For a unit course or courses which are being paid for under 5 
U.S.C. chapter 41.

(Authority: 38 U.S.C. 3681(a))

[61 FR 26108, May 24, 1996]

                                 Claims



Sec. 21.3030  Claims.

    The provisions of subpart B of this part apply with respect to 
submission of a claim for educational assistance under 38 U.S.C. chapter 
35, VA actions upon receiving a claim, and time limits connected with 
claims.

(Authority: 38 U.S.C. 3513, 5101, 5102, 5103)

[64 FR 23772, May 4, 1999]

                       Eligibility and Entitlement



Sec. 21.3040  Eligibility; child.

    (a) Commencement. A program of education or special restorative 
training may not be afforded prior to the eligible person's 18th 
birthday or the completion of secondary schooling, whichever is earlier, 
unless it is determined through counseling that the best interests of 
the eligible person will be served by entering training at an earlier 
date and the eligible person has passed:
    (1) Compulsory school attendance age under State law; or
    (2) His or her 14th birthday and due to physical or mental handicap 
may benefit by special restorative or specialized vocational training.
    (b) Secondary schooling. Completion of secondary schooling means 
completion of a curriculum offered by a public or private school which 
satisfies the requirements for a high school diploma or its equivalent--
usually completion of the 12th grade in the public school system.
    (c) Age limitation for commencement. No person is eligible for 
educational assistance who reached his or her 26th birthday on or before 
the effective date of a finding of permanent total service-connected 
disability, or on or before the date the veteran's death occurred, or on 
or before the 91st day of listing by the Secretary concerned of the 
member of the Armed Forces on whose service eligibility is claimed as 
being in one of the missing status categories of Sec. 21.3021 
(a)(1)(iv) and (3)(ii).
    (d) Termination of eligibility. No person is eligible for 
educational assistance beyond his or her 31st birthday, except as 
provided under Sec. 21.3041(e)(2). In no event may educational 
assistance be provided after the period of entitlement has been 
exhausted. In an exceptional case special restorative training may be 
provided in excess of 45 months. See Sec. 21.3300.

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

[30 FR 15632, Dec. 18, 1965, as amended at 34 FR 842, Jan. 18, 1969; 39 
FR 38227, Oct. 30, 1974; 40 FR 42879, Sept. 17, 1975; 41 FR 47929, Nov. 
1, 1976; 43 FR 35290, Aug. 9, 1978]



Sec. 21.3041  Periods of eligibility; child.

    (a) Basic beginning date. The basic beginning date of an eligible 
child's period of eligibility is his or her 18th birthday or successful 
completion of secondary schooling, whichever occurs first. See paragraph 
(b) of this section and Sec. 21.3040 (a) and (b).


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

    (b) Exceptions to basic beginning date. (1) An eligible child may 
have a beginning date earlier than the basic beginning date when he or 
she has:
    (i) Completed compulsory school attendance under applicable State 
law, or
    (ii) Passed his or her 14th birthday and has a physical or mental 
handicap. See Sec. 21.3040(a).
    (2) The eligible child may have a beginning date later than the 
basic beginning date when any of the following circumstances exist.
    (i) If the effective date of the permanent and total disability 
rating is before the child has reached 18 but the date of notification 
to the veteran from whom the child derives eligibility occurs after the 
child has reached 18, the beginning date of eligibility shall be the 
basic beginning date as determined in paragraph (a) of this section, or 
the date of notification to the veteran, whichever is more advantageous 
to the eligible child.

[[Page 217]]

    (ii) If the effective date of the permanent and total disability 
rating occurs after the child has reached 18 but before he or she has 
reached 26, the beginning date of eligibility will be the effective date 
of the rating or the date of notification to the veteran from whom the 
child derives eligibility, whichever is more advantageous to the 
eligible child.


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

    (iii) If the child becomes eligible through the death of a veteran, 
the date of death will be the beginning date of eligibility if it occurs 
after the child's 18th birthday and before his or her 26th birthday.
    (iv) The child may become eligible through qualifying as the 
veteran's adopted child (see Sec. 3.57(c)) or by becoming a stepchild 
of the veteran and a member of the veteran's household. If either of 
these events occurs after the child's 18th birthday and before his or 
her 26th birthday, the effective date of eligibility will be whichever 
of the following is appropriate:
    (A) The date the child qualifies as an adopted child under Sec. 
3.57(c), or
    (B) The date the child becomes the veteran's stepchild and a member 
of his or her household.


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

    (c) Basic ending date. The eligible person's 26th birthday.
    (d) Modified ending date. When one of the following occurs between 
ages 18 and 26, the ending date will be the eligible person's 26th 
birthday or 8 years from the date of happening specified in paragraphs 
(d) (1) to (7) of this section and 10 years in paragraph (d)(8); 
whichever is later. When paragraph (d)(9) is applicable, the ending date 
will be as stated in paragraph (d)(9). Where the ending date is subject 
to modification under more than one of paragraph (d) (3), (4), (5), (6) 
or (7) of this section, the more favorable date will apply. In no case 
will the modified ending date extend beyond the eligible person's 31st 
birthday.


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

    (1) Effective date of permanent total rating of veteran-parent or 
the date of notification to him or her of such rating, whichever is the 
more advantageous to the eligible person.


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

    (2) Death of veteran-parent.
    (3) Date of first unconditional discharge or release from ``duty 
with the Armed Forces'' served as an eligible person if he or she served 
after age 18 and before age 26. See Sec. 21.3042.
    (4) Enactment of Pub. L. 88-361 on July 7, 1964, providing 
eligibility based on permanent total disability; that is, July 6, 1969.
    (5) Enactment of Pub. L. 89-349 on November 8, 1965, providing 
eligibility based on peacetime service after the Spanish-American War 
and prior to September 16, 1940; or during World War I or World War II 
solely by reason of the provisions of 38 U.S.C. 1101; that is, November 
7, 1970.
    (6) Enactment of Pub. L. 89-613 on September 30, 1966, providing 
eligibility based on service with the Philippine Commonwealth Army or as 
a Philippine Scout as defined in Sec. 3.40 (b), (c), or (d) of this 
chapter; that is, September 29, 1971. See Sec. 3.807 of this chapter.
    (7) Effective date of Pub. L. 90-77, section 307, October 1, 1967, 
providing eligibility for persons solely by virtue of that section who 
were over age 23 and below age 26 on that date; that is September 30, 
1972.
    (8) Enactment of Pub. L. 92-540 (86 Stat. 1074) on October 24, 1972, 
providing for a course of apprentice or other on-the-job training 
approved under the provisions of Sec. 21.4261 or 21.4262; that is, 
October 24, 1982 or until age 31, whichever is earlier.
    (9) The child may lose eligibility through ceasing to be the 
veteran's stepchild either because the veteran and the child's natural 
or adoptive parent divorce or because the veteran and the child's 
natural or adoptive parent separate and the child is no longer a member 
of the veteran's household. If this occurs, the ending date of the 
child's period of eligibility will be determined as follows:
    (i) If the child ceases to be the veteran's stepchild while the 
child is not in training, the ending date of the child's eligibility 
shall be the date on

[[Page 218]]

which the child ceases to be the veteran's stepchild.
    (ii) If the child ceases to be the veteran's stepchild while the 
child is in training in a school organized on a term, semester or 
quarter basis, the ending date of the child's eligibility will be the 
last date of the term, semester or quarter during which the child ceases 
to be the veteran's stepchild.
    (iii) If the child ceases to be the veteran's stepchild while the 
child is in training in a school not organized on a term, semester or 
quarter basis, the ending date of the child's period of eligibility will 
be the end of the course or 12 weeks from the date on which the child 
ceases to be the veteran's stepchild, whichever is earlier. See Sec. 
21.3135(g).


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

    (e) Extensions to ending dates. (1) Suspension of program due to 
conditions determined by the Department of Veterans Affairs to have been 
beyond the person's control (see Sec. 21.3043): extended for length of 
period of suspension, but not beyond age 31. See Sec. 21.3040(d).
    (2) Period of eligibility as specified in paragraph (c) or (d) of 
this section ends while enrolled in an educational institution regularly 
operated on the quarter or semester system and such period ends during a 
quarter or semester, such period shall be extended to the end of the 
quarter or semester, or for courses at educational institutions operated 
on other than a quarter or semester system, if the period ends after a 
major portion of the course is completed, such period shall be extended 
to the end of the course, or until 12 weeks have expired, whichever 
first occurs. Extension may be authorized beyond age 31, but may not 
exceed maximum entitlement. See Sec. 21.3044(a). No extension of the 
period of eligibility will be made where training is pursued in a 
training establishment as defined in Sec. 21.4200(c).


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

    (3) Child is enrolled and eligibility ceases because veteran is no 
longer rated permanently and totally disabled: extended to date 
specified in paragraph (e)(2) of this section without regard to whether 
the midpoint of the quarter, semester or term has been reached. See 
Sec. 21.3135(h).
    (4) Child is enrolled and eligibility ceases because the member of 
the Armed Forces upon whose service eligibility is based is no longer 
listed by the Secretary concerned in any of the categories specified in 
Sec. 21.3021(a)(1)(iv): extended to date specified in paragraph (e)(2) 
of this section without regard to whether the midpoint of the quarter, 
semester or term has been reached. See Sec. 21.3135(i).

[30 FR 15632, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 31 
FR 13993, Nov. 2, 1966; 32 FR 13402, Sept. 23, 1967; 34 FR 842, Jan. 18, 
1969; 39 FR 38228, Oct. 30, 1974; 40 FR 42879, Sept. 17, 1975; 41 FR 
47929, Nov. 1, 1976; 43 FR 35290, Aug. 9, 1978; 48 FR 57275, Dec. 29, 
1983; 54 FR 31952, Aug. 3, 1989; 54 FR 42501, Oct. 17, 1989; 61 FR 
26108, May 24, 1996; 62 FR 55760, Oct. 28, 1997]



Sec. 21.3042  Service with Armed Forces.

    (a) No educational assistance under 38 U.S.C. chapter 35 may be 
provided an otherwise eligible person during any period he or she is on 
duty with the Armed Forces. See Sec. 21.3021 (e) and (f). This does not 
apply to brief periods of active duty for training. See Sec. 
21.3135(f).


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

    (b) If the eligible person served with the Armed Forces, his or her 
discharge or release from each period of service must have been under 
conditions other than dishonorable.


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

    (c) The term unconditional discharge, as used in Sec. 21.3041 means 
unconditional discharge or release from duty with the Armed Forces. See 
Sec. 3.13 of this chapter.

[30 FR 15633, Dec. 18, 1965, as amended at 34 FR 842, Jan. 18, 1969; 36 
FR 2508, Feb. 5, 1971; 41 FR 42929, Nov. 1, 1976; 61 FR 26109, May 24, 
1996]



Sec. 21.3043  Suspension of program; child.

    For an eligible person who suspends his program due to conditions 
determined by the Department of Veterans Affairs to have been beyond his 
or her control the period of eligibility may, upon his request, be 
extended by the

[[Page 219]]

number of months and days intervening the date the suspension began and 
the date the reason for suspension ceased to exist. The burden of proof 
is on the eligible person to establish that suspension of a program was 
due to conditions beyond his or her control. The period of suspension 
shall be considered to have ended as of the date of the person's first 
available opportunity to resume training after the condition which 
caused it ceased to exist. The following circumstances may be considered 
as beyond the eligible person's control:
    (a) While in active pursuit of a program of education he or she is 
appointed by the responsible governing body of an established church, 
officially charged with the selection and designation of missionary 
representatives, in keeping with its traditional practice, to serve the 
church in an official missionary capacity and is thereby prevented from 
pursuit of his or her program of studies.
    (b) Immediate family or financial obligations beyond his or her 
control require the eligible person to take employment, or otherwise 
preclude pursuit of his or her program.
    (c) Unavoidable conditions arising in connection with the eligible 
person's employment which preclude pursuit of his or her program.
    (d) Pursuit of his or her program is precluded because of the 
eligible person's own illness or illness or death in his or her 
immediate family.
    (e) Active duty, including active duty for training in the Armed 
Forces.

[41 FR 47929, Nov. 1, 1976]



Sec. 21.3044  Entitlement.

    (a) Limitations on entitlement. Each eligible person in entitled to 
educational assistance not in excess of 45 months, or the equivalent 
thereof in part-time training. The Department of Veterans Affairs will 
not authorize an extension of entitlement except as provided in 
paragraph (c) of this section. The period of entitlement when added to 
education or training received under any or all of the laws cited in 
Sec. 21.4020 will not exceed 48 months of full-time educational 
assistance. The period of entitlement will not be reduced by any period 
during which employment adjustment allowance was paid after the eligible 
person completes a period of rehabilitation and reaches a point of 
employability.
    (b) Continuous pursuit is not required. The 45-month period of 
entitlement is any 45 months within the period of eligibility. The 
eligible person is not required to pursue his or her program for 45 
consecutive months.


(Authority: 38 U.S.C. 3511(a))

    (c) Exceeding the 45 months limitation. The 45 months limitation may 
be exceeded only in the following cases:
    (1) Where no charge against the entitlement is made based on a 
course or courses pursued by a spouse or surviving spouse under the 
special assistance for the educationally disadvantaged program (See 
Sec. 21.3344(d); or
    (2) Where special restorative training authorized under Sec. 
21.3300 exceeds 45 months.


(Authority: 38 U.S.C. 3541(b), 3533(b))

[49 FR 48692, Dec. 14, 1984, as amended at 61 FR 26109, May 24, 1996]



Sec. 21.3045  Entitlement charges.

    VA will make charges against an eligible person's entitlement only 
when required by this section. Charges for institutional training will 
be based upon the principle that an eligible person who trains full time 
for 1 day should be charged 1 day of entitlement.
    (a) No entitlement charge for eligible persons receiving tutorial 
assistance. VA will make no charge against the entitlement of an 
eligible person for tutorial assistance received in accordance with 
Sec. 21.4236.


(Authority: 38 U.S.C. 3492, 3533(b))

    (b) Entitlement charges for elementary and secondary education.
    (1) When an eligible spouse or surviving spouse is pursuing a course 
leading to a secondary school diploma or an equivalency certificate as 
described in Sec. 21.3344, there are two sets of circumstances which 
will always result in VA's making no charge against his or her 
entitlement. These are as follows:
    (i) Either the eligible spouse or surviving spouse completed 
training during the period beginning on October 1,

[[Page 220]]

1980, and ending on August 14, 1989, and remained continuously enrolled 
from October 1, 1980, through the time the spouse or surviving spouse 
either completed training or August 14, 1989, whichever is earlier; or
    (ii) The eligible spouse or surviving spouse completed training 
before August 15, 1989, and received educational assistance based upon 
the tuition and fees charged for the course.
    (2) When an eligible spouse or surviving spouse is pursuing a course 
leading to a secondary school diploma or an equivalency certificate as 
described in Sec. 21.3344, the following circumstances will always 
result in VA's making a charge against his or her entitlement unless the 
provisions of paragraph (d) of this section would exempt the spouse or 
surviving spouse from receiving an entitlement charge.
    (i) The spouse or surviving spouse elects to receive dependents' 
educational assistance at the rate described in Sec. 21.3131(a), and
    (ii) Either was not pursuing a course leading to a secondary school 
diploma or equivalency certificate on October 1, 1980, or has not 
remained continuously enrolled in such a course since October 1, 1980.
    (3) When an eligible person pursues refresher, remedial or 
deficiency training before August 15, 1989, the following provisions 
govern the charge against the entitlement.
    (i) VA will not make a charge against the entitlement of an eligible 
spouse or surviving spouse.
    (ii) VA will make a charge against the entitlement of an eligible 
child.
    (4) The following provisions apply to an eligible person for 
training received after August 14, 1989. When he or she is pursuing a 
course leading to a secondary school diploma or equivalency certificate 
or refresher, remedial or deficiency training.
    (i) VA will make no charge against the entitlement of an eligible 
person for the first five months of full time pursuit (or its equivalent 
in part-time pursuit).
    (ii) VA will make a charge against the entitlement of an eligible 
person for pursuit in excess of the pursuit described in paragraph 
(b)(4)(i) unless the provisions of paragraph (d) of this section would 
exempt the eligible person from receiving an entitlement charge.


(Authority: 38 U.S.C. 3511(a), 3533(a); Pub. L. 100-689, Pub. L. 102-
127)(Oct. 10, 1991)

    (c) Other courses for which entitlement will be charged. Except when 
the requirements of paragraph (d) of this section are met, VA will make 
a charge against the period of entitlement--
    (1) An eligible person for pursuit of a program of apprenticeship or 
other on-job training;
    (2) A spouse or surviving spouse for pursuit of a correspondence 
course; or
    (3) An eligible person for the pursuit of any course not described 
in paragraph (a) or (b) of this section.


(Authority: 38 U.S.C. 3534)

    (d) Exemption from entitlement charge. (1) VA will not make a charge 
against the entitlement of an eligible person for the pursuit of any 
course or courses when VA finds that the eligible person--
    (i) Had to discontinue pursuit of the course or courses as the 
result of being ordered, in connection with the Persian Gulf War, to 
serve on active duty under section 672 (a), (d), or (g), 673, 673b, or 
688 of title 10, U.S. Code; and
    (ii) Failed to receive credit or training time toward completion of 
the eligible person's approved educational, professional or vocational 
objective as a result of having to discontinue, as described in 
paragraph (d)(1)(i) of this section, his or her course pursuit.
    (2) The period for which VA will not make a charge against 
entitlement shall not exceed the portion of the period of enrollment in 
the course or courses for which the eligible person failed to receive 
credit or with respect to which the eligible person lost training time.


(Authority: 38 U.S.C. 3511(a); Pub. L. 102-127)(Oct. 10, 1991)

    (e) Determining entitlement charge. The provisions of this paragraph 
apply to all courses except those courses for which VA is not making a 
charge against the eligible person's entitlement, apprenticeship or 
other on-job training, correspondence courses, and

[[Page 221]]

courses offered solely through independent study.
    (1) After making any adjustments required by paragraph (e)(3) of 
this section, VA will make a charge against entitlement--
    (i) On the basis of total elapsed time (one day for each day of 
pursuit) if the eligible person is pursuing the program of education on 
a full-time basis,
    (ii) On the basis of a proportionate rate of elapsed time, if the 
eligible person is pursuing a program of education on a three-quarter, 
one-half or less than one-half time basis. For the purpose of this 
computation, training time which is less that one-half, but more than 
one-quarter time, will be treated as though it were one-quarter time 
training.
    (2) VA will compute elapsed time from the commencing date of 
enrollment to date of discontinuance. If the eligible person changes his 
or her training time after the commencing date of enrollment, VA will--
    (i) Divide the enrollment period into separate periods of time 
during which the eligible person's training time remains constant; and
    (ii) Compute the elapsed time separately for each time period.
    (3) An eligible person may concurrently enroll in refresher, 
remedial or deficiency training for which paragraph (b)(3) or (b)(4)(i) 
of this section requires no charge against entitlement and in a course 
or courses for which paragraph (b)(2) or (b)(4)(ii) or (c) of this 
section requires a charge against entitlement. When this occurs, VA will 
charge entitlement for the concurrent enrollment based only on pursuit 
of the courses described in paragraph (b)(2) or (b)(4)(ii) or (c) of 
this section, measured in accordance with Sec. Sec. 21.4270 through 
21.4275 of this part, as appropriate.


(Authority: 38 U.S.C. 3533(a); Pub. L. 100-689)

    (f) Entitlement charge for pursuit solely by independent study. For 
enrollments in terms, quarters, or semesters that begin after June 30, 
1993, VA will make charges against the entitlement of an eligible person 
in the manner prescribed by paragraph (e) of this section, if he or she 
is pursuing a program of education solely by independent study. For all 
other enrollments where the eligible person is pursuing a program of 
education solely by independent study, the computation will be made as 
though the eligible person's training were one-quarter time.


(Authority: 38 U.S.C. 3482(b), 3532(a))

    (g) Entitlement charge for apprenticeship or other on-job training. 
The charge against entitlement for pursuit of apprenticeship or other 
on-job training program shall be 1 month for each month of training 
assistance allowance paid to the eligible person for the program. If 
there is a reduction in the eligible person's monthly training 
assistance allowance due to his or her failure to complete 120 hours of 
training during the month, VA will combine the portions of those months 
for which a reduction was made. VA will make no charge against 
entitlement for the period of combined reductions.


(Authority: 38 U.S.C. 3534, 3687)

    (h) Entitlement charge for correspondence courses. The charge 
against entitlement of a spouse or surviving spouse for pursuit of a 
course exclusively by correspondence will be 1 month for each of the 
following amounts paid as an educational assistance allowance:
    (1) $588 paid after October 31, 2000, and before October 1, 2001;
    (2) $608 paid after September 30, 2001, and before January 1, 2002; 
and
    (3) $670 paid after December 31, 2001.


(Authority: 38 U.S.C. 3534(b), 3564, 3686(a)).

    (i) Overpayment cases. VA will make a charge against entitlement for 
an overpayment only if the overpayment is discharged in bankruptcy, is 
waived and is not recovered, or is compromised.
    (1) If the overpayment is discharged in bankruptcy or is waived and 
is not recovered, the charge against entitlement will be at the 
appropriate rate for the elapsed period covered by the overpayment 
(exclusive of interest, administrative costs of collection, court costs 
and marshal fees).
    (2) If the overpayment is compromised and the compromise offer is 
less than the amount of interest, administrative costs of collection, 
court costs and marshal fees, the charge

[[Page 222]]

against entitlement will be at the appropriate rate for the elapsed 
period covered by the overpayment (exclusive of interest, administrative 
costs of collection, court costs and marshal fees).
    (3) If the overpayment is compromised and the compromise offer is 
equal to or greater than the amount of interest, administrative costs of 
collection, court costs and marshal fees, the charge against entitlement 
will be determined by--
    (i) Subtracting from the sum paid in the compromise offer the amount 
attributable to interest, administrative costs of collection, court 
costs and marshal fees,
    (ii) Subtracting the remaining amount of the overpayment balance 
determined in paragraph (i)(3)(i) of this section from the amount of the 
original overpayment (exclusive of interest, administrative costs of 
collection, court costs and marshal fees),
    (iii) Dividing the result obtained in paragraph (h)(3)(ii) of this 
section by the amount of the original debt (exclusive of interest, 
administrative costs of collection, court costs and marshal fees), and
    (iv) Multiplying the percentage obtained in paragraph (h)(3)(iii) of 
this section by the amount of the entitlement otherwise chargeable for 
the period of the original overpayment.


(Authority: 38 U.S.C. 3471, 3532)

    (j) Interruption to conserve entitlement. An eligible person may not 
interrupt a certified period of enrollment for the purpose of conserving 
entitlement. An educational institution may not certify a period of 
enrollment for a fractional part of the normal term, quarter or 
semester, if the eligible person is enrolled for the term, quarter or 
semester. VA will make a charge against entitlement for the entire 
period of certified enrollment, if the eligible person is otherwise 
eligible for benefits, except when benefits are interrupted under any of 
the following conditions:
    (1) Enrollment is actually terminated;
    (2) The eligible person cancels his or her enrollment, and does not 
negotiate an educational benefits check for any part of the certified 
period of enrollment;
    (3) The eligible person interrupts his or her enrollment at the end 
of any term, quarter, or semester within the certified period of 
enrollment, and does not negotiate a check for educational benefits for 
the succeeding term, quarter, or semester;
    (4) The eligible person requests interruption or cancellation for 
any break when a school was closed during a certified period of 
enrollment, and VA continued payments under an established policy based 
upon an Executive Order of the President or an emergency situation. 
Whether the eligible person negotiated a check for educational benefits 
for the certified period is immaterial.


(Authority: 38 U.S.C. 3511)

    (k) Education loan after otherwise applicable delimiting date--
spouse or surviving spouse. VA will make a charge against the 
entitlement of a spouse or surviving spouse who receives an education 
loan pursuant to Sec. 21.4501(c) at the rate of 1 day for each day of 
entitlement that would have been used had the spouse or surviving spouse 
been in receipt of educational assistance allowance for the period for 
which the loan was granted.


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

[55 FR 28024, July 9, 1990, as amended at 57 FR 29799, July 7, 1992; 58 
FR 26240, May 3, 1993; 61 FR 26109, May 24, 1996; 62 FR 55760, Oct. 28, 
1997; 63 FR 67778, Dec. 9, 1998; 66 FR 32227, June 14, 2001; 68 FR 
34320, June 9, 2003]



Sec. 21.3046  Periods of eligibility; spouses and surviving spouses.

    This section states how VA will compute the beginning date, the 
ending date and the length of a spouse's or surviving spouse's period of 
eligibility. The period of eligibility of a spouse computed under the 
provisions of paragraph (a) of this section will be recomputed under the 
provisions of paragraph (b) of this section if her or his status changes 
to that of surviving spouse.


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

    (a) Beginning date of eligibility period-spouses. (1) If the 
permanent total rating is effective before December 1, 1968,

[[Page 223]]

the beginning date of the 10-year period of eligibility is December 1, 
1968.
    (2) The beginning date of eligibility--
    (i) Shall be determined as provided in paragraph (a)(2) of this 
section when--
    (A) The permanent total rating is effective after November 30, 1968, 
or the notification to the veteran of the rating was after that date, 
and
    (B) Eligibility does not arise under Sec. 21.3021(a)(3)(ii) of this 
part.
    (ii) For spouses for whom VA made a final determination of 
eligibility before October 28, 1986, shall be--
    (A) The effective date of the rating, or
    (B) The date of notification, whichever is more advantageous to the 
spouse.
    (iii) For spouses for whom VA made a final determination of 
eligibility after October 27, 1986, shall be--
    (A) The effective date of the rating, or
    (B) The date of notification, or
    (C) Any date between the dates specified in paragraphs (a)(2)(iii) 
(A) and (B) of this section as chosen by the eligible spouse.
    (iv) May not be changed once a spouse has chosen it as provided in 
paragraph (a)(2)(iii) of this section.
    (3) If eligibility arises under Sec. 21.3021(a)(3)(ii) of this 
part, the beginning date of the 10-year eligibility period is--
    (i) December 24, 1970, or
    (ii) The date the member of the Armed Forces on whose service 
eligibility is based was so listed by the Secretary concerned, whichever 
last occurs.


(Authority: 38 U.S.C. 3501(a); Pub. L. 99-576)

    (b) Beginning date of eligibility period-surviving spouses. (1) If 
VA determines before December 1, 1968, that the veteran died of a 
service-connected disability, the beginning date of the 10-year period 
is December 1, 1968.


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

    (2) If the veteran's death occurred before December 1, 1968, but VA 
does not determine that the veteran died of a service-connected 
disability until after November 30, 1968, the beginning date of the 10-
year period is the date on which VA determines that the veteran died of 
a service-connected disability.
    (3) If the veteran's death occurred before December 1, 1968, while a 
total, service-connected disability evaluated as permanent in nature was 
in existence, the beginning date of the 10-year period is December 1, 
1968.
    (4) If the veteran's death occurred after November 30, 1968, and VA 
makes a final decision concerning the surviving spouse's eligibility for 
dependents' educational assistance before October 28, 1986, the 
beginning date of the 10-year period is--
    (i) The date of death of the veteran who dies while a total, 
service-connected disability evaluated as permanent in nature was in 
existence, or
    (ii) The date on which VA determines that the veteran died of a 
service-connected disability.
    (5) If the veteran's death occurred after November 30, 1968, and VA 
makes a final decision concerning the surviving spouse's eligibility for 
dependents educational assistance after October 27, 1986, VA will 
determine the beginning date of the 10-year period as follows.
    (i) If the surviving spouse's eligibility is based on the veteran's 
death while a total, service-connected disability evaluated as permanent 
in nature was in existence, the beginning date of the 10-year period is 
the date of death.
    (ii) If the surviving spouse's eligibility is based on the veteran's 
death from a service-connected disability, the surviving spouse will 
choose the beginning date of the 10-year period. That date will be no 
earlier than the date of death and no later than the date of the VA 
determination that the veteran's death was due to a service-connected 
disability.


(Authority: 38 U.S.C. 3512(b); Pub. L. 99-576)

    (6) Once a surviving spouse has chosen a beginning date of 
eligibility as provided in paragraph (b)(5) of this section, the 
surviving spouse may not revoke that choice.


(Authority: 38 U.S.C. 3512(b); Pub. L. 99-576)

    (c) Ending date of eligibility period. (1) The period of eligibility 
cannot exceed 10 years and can be extended only as

[[Page 224]]

provided in paragraph (d) of this section and Sec. 21.3047.
    (2) If eligibility arises before October 24, 1972, educational 
assistance based on a course of apprentice or other on-job training or 
correspondence approved under the provisions Sec. Sec. 21.4256, 
21.4261, and 21.4262 of this part will not be afforded later than 
October 23, 1982, unless the eligible spouse or surviving spouse 
qualifies for the extended period of eligibility provided in paragraph 
(d) of this section.


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

    (d) Extension to ending date. (1) The ending date of a spouse's 
period of eligibility may be extended when the spouse is enrolled and 
eligibility ceases for one of the following reasons:
    (i) The veteran is no longer rated permanently and totally disabled;
    (ii) The spouse is divorced from the veteran without fault on the 
spouse's part; or
    (iii) The spouse no longer is listed in any of the categories of 
Sec. 21.3021(a)(3)(ii) of this part.
    (2) If the spouse is enrolled in a school operating on a quarter or 
semester system, VA will extend the period of eligibility to the end of 
the quarter or semester, regardlesss of whether the spouse has reached 
the midpoint of the quarter, semester or term.
    (3) If the spouse is enrolled in a school not operating on a quarter 
or semester system, VA will extend the period of eligibility to the 
earlier of the following:
    (i) The end of the course, or
    (ii) 12 weeks.
    (4) If the spouse is enrolled in a course pursued exclusively by 
correspondence, VA will extend the period of eligibility to whichever of 
the following will result in the lessser expenditure:
    (i) The end of the course, or
    (ii) The total additional amount of instruction that $1,131 will 
provide.


(Authority: 38 U.S.C. 3511(b))

    (5) VA will not extend the period of eligibility when the spouse is 
pursuing training in a training establishment as defined in Sec. 
21.4200(c) of this part.
    (6) An extension may not--
    (i) Exceed maximum entitlement, or
    (ii) Extend beyond the delimiting date specified in paragraph (a) of 
this section or Sec. 21.3047, as appropriate.


(Authority: 38 U.S.C. 3511(b), 3512(b), 3532, 3586)

[54 FR 33886, Aug. 17, 1989, as amended at 57 FR 29799, July 7, 1992; 57 
FR 60735, Dec. 22, 1992; 62 FR 51784, Oct. 3, 1997; 62 FR 59579, Nov. 4, 
1997]



Sec. 21.3047  Extended period of eligibility due to physical or mental 
disability.

    (a) General. (1) An eligible spouse or surviving spouse shall be 
granted an extension of the applicable period of eligibility as 
otherwise determined by Sec. 21.3046 provided the eligible spouse or 
surviving spouse:
    (i) Applies for the extension within the appropriate time limit;
    (ii) Was prevented from initiating or completing the chosen program 
of education within the otherwise applicable period of eligibility 
because of a physical or mental disability that did not result from the 
willful misconduct of the eligible spouse or surviving spouse;
    (iii) Provides VA with any requested evidence tending to show that 
the requirement of paragraph (a)(1)(ii) of this section has been met; 
and
    (iv) Is otherwise eligible for payment of educational assistance for 
the training pursuant to 38 U.S.C. chapter 35.
    (2) In determining whether the eligible spouse or surviving spouse 
was prevented from initiating or completing the chosen program of 
education because of a physical or mental disability, VA will consider 
the following:
    (i) It must be clearly established by medical evidence that such a 
program of education was medically infeasible.
    (ii) An eligible spouse or surviving spouse who is disabled for a 
period of 30 days or less will not be considered as having been 
prevented from initiating or completing a chosen program, unless the 
evidence establishes that the eligible spouse or surviving spouse was 
prevented from enrolling or reenrolling in the chosen program of 
education, or was forced to discontinue attendance, because of the short 
disability.
    (iii) VA will not consider the disabling effects of chronic 
alcoholism to be the result of willful misconduct and

[[Page 225]]

will consider those disabling effects as physical or mental 
disabilities.
    (b) Commencing date. The eligible spouse or surviving spouse shall 
elect the commencing date of an extended period of eligibility. The date 
chosen--
    (1) Must be on or after the original date of expiration of 
eligibility as determined by Sec. 21.3046(c); and
    (2) Must be on or before the ninetieth day following the date on 
which the eligible spouse's or surviving spouse's application for an 
extension was approved by VA, if the eligible spouse or surviving spouse 
is training during the extended period of eligibility in a course not 
organized on a term, quarter, or semester basis; or
    (3) Must be on or before the first ordinary term, quarter, or 
semester following the ninetieth day after the eligible spouse's or 
surviving spouse's application for an extension was approved by VA if 
the eligible spouse or surviving spouse is training during the extended 
period of eligibility in a course organized on a term, quarter, or 
semester basis.


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

    (c) Length of extended periods of eligibility. An eligible spouse's 
or surviving spouse's extended period of eligibility shall be for the 
length of time that the individual was prevented from initiating or 
completing his or her chosen program of education. This shall be 
determined as follows:
    (1) If the eligible spouse or surviving spouse is in training in a 
course organized on a term, quarter, or semester basis, his or her 
extended period of eligibility shall contain the same number of days as 
the number of days from the date during the eligible spouse's or 
surviving spouse's original period of eligibility that his or her 
training became medically infeasible to the earliest of the following 
dates:
    (i) The commencing date of the ordinary term, quarter, or semester 
following the day the eligible spouse's or surviving spouse's training 
became medically feasible;
    (ii) The ending date of the eligible spouse's or surviving spouse's 
period of eligibility as determined by Sec. 21.3046(c); or
    (iii) The date the eligible spouse or surviving spouse resumed 
training.
    (2) If the eligible spouse or surviving spouse is training in a 
course not organized on a term, quarter, or semester basis, his or her 
extended period of eligibility shall contain the same number of days 
from the date during the eligible spouse's or surviving spouse's 
original period of eligibility that his or her training became medically 
infeasible to the earlier of the following dates:
    (i) The date the eligible spouse's or surviving spouse's training 
became medically feasible; or
    (ii) The ending date of the eligible spouse's or surviving spouse's 
period of eligibility as determined by Sec. 21.3046.

(Paperwork requirements were approved by the Office of Management and 
Budget under control number 2900-0573)


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

[62 FR 51784, Oct. 3, 1997]

                               Counseling

    Source: 61 FR 26109, May 24, 1996, unless otherwise noted.



Sec. 21.3100  Counseling.

    (a) Purpose of counseling. The purpose of counseling is to assist:
    (1) In selecting an educational or training objective;


(Authority: 38 U.S.C. 3520)

    (2) In developing a suitable program of education or training;


(Authority: 38 U.S.C. 3520)

    (3) In selecting an educational institution or training 
establishment appropriate for the attainment of the educational or 
training objective;


(Authority: 38 U.S.C. 3561(a))

    (4) In resolving any personal problems which are likely to interfere 
with successful pursuit of a program;


(Authority: 38 U.S.C. 3561(a))

    (5) In selecting an employment objective for the eligible person 
that would be likely to provide the eligible person

[[Page 226]]

with satisfactory employment opportunities in light of his or her 
circumstances.


(Authority: 38 U.S.C. 3520, 3561(a))

    (b) Availability of counseling. Counseling assistance is available 
for--
    (1) Identifying and removing reasons for academic difficulties which 
may result in interruption or discontinuance of training; or
    (2) In considering changes in career plans, and making sound 
decisions about the changes.


(Authority: 38 U.S.C. 3520, 3561(a))

    (c) Provision of counseling. VA shall provide counseling as needed 
for the purposes identified in paragraphs (a) and (b) of this section 
upon the request of the eligible person.


(Authority: 38 U.S.C. 3520, 3561(a))



Sec. 21.3102  Required counseling.

    (a) Child. The VA counseling psychologist will provide counseling 
and assist in preparing the educational plan only if the eligible child 
or his or her parent or guardian requests assistance, except that 
counseling is required for an eligible child if--
    (1) The eligible child may require specialized vocational training 
or special restorative training; or
    (2) The eligible child has reached the compulsory school attendance 
age under State law, but has neither reached his or her 18th birthday, 
nor completed secondary schooling. See Sec. 21.3040(a).
    (b) Spouse or surviving spouse. Counseling is required for a spouse 
or surviving spouse only if he or she desires specialized vocational 
training.

(Authority: 38 U.S.C. 3520, 3536, 3541, 3561)



Sec. 21.3103  Failure to cooperate.

    VA will not act further on an eligible person's application for 
assistance under 38 U.S.C. chapter 35 when counseling is required for 
him or her and the eligible person--
    (a) Fails to report;
    (b) Fails to cooperate in the counseling process; or
    (c) Does not complete counseling to the extent required under Sec. 
21.3102.

(Authority: 38 U.S.C. 3536, 3541, 3561(a))



Sec. 21.3104  Special training.

    (a) Initial counseling. A counseling psychologist in the Vocational 
Rehabilitation and Employment Division will counsel a disabled child, 
spouse, or surviving spouse before referring the case to the Vocational 
Rehabilitation Panel (established under Sec. 21.60) for consideration 
as to the child's, spouse's or surviving spouse's need for a course of 
specialized vocational training or the child's need for special 
restorative training. After consulting with the panel, and considering 
the panel's report, the counseling psychologist will determine if the 
disabled child, spouse, or surviving spouse needs a course of 
specialized vocational training or the disabled child needs special 
restorative training, and where need is found to exist will prescribe a 
course which is suitable to accomplish the goals of 38 U.S.C. chapter 
35.


(Authority: 38 U.S.C. 3536, 3540-3543, 3561(a))

    (b) Counseling after special restorative training. When an eligible 
child completes or discontinues a course of special restorative training 
without having selected an objective and a program of education, a 
counseling psychologist in the Vocational Rehabilitation and Employment 
Division will provide additional counseling to assist the child in 
selecting a program of education suitable to accomplish the purposes of 
38 U.S.C. chapter 35.


(Authority: 38 U.S.C. 3561)



Sec. 21.3105  Travel expenses.

    (a) General. VA shall determine and pay the necessary expense of 
travel to and from the place of counseling for an eligible person who is 
required to receive counseling as provided under 38 U.S.C. 111 (a), (d), 
(e), and (g).


(Authority: 38 U.S.C. 111 (a), (d), (e), and (g))

    (b) Restriction. VA will not pay the necessary cost of travel to and 
from the place of counseling when counseling is not required, but is 
provided

[[Page 227]]

as a result of a voluntary request by the eligible person.


(Authority: 38 U.S.C. 111)

                                Payments



Sec. 21.3130  Educational assistance.

    (a) Approval of a program of education. VA will approve a program of 
education selected by an eligible person if:
    (1) The program is described in Sec. 21.3021 (h) and (i) or (j);
    (2) The individual is not already qualified for the objective of the 
program of education;
    (3) The proposed educational institution or training establishment 
is in compliance with all the requirements of 38 U.S.C. chapters 35 and 
36; and
    (4) It does not appear that the enrollment in or pursuit of such 
person's program of education would violate any provision of 38 U.S.C. 
chapters 35 and 36.


(Authority: 38 U.S.C. 3521)

    (b) Payments. VA will pay educational assistance at the rate 
specified in Sec. 21.3131 (subject to the reductions required by Sec. 
21.3132) while the eligible person is pursuing an approved program of 
education or training.


(Authority: 38 U.S.C. 3521, 3532)

    (c) No payment for excessive training. (1) VA will make no payment 
for:
    (i) Training in an apprenticeship or other on-job training program 
in excess of the number of hours approved by the State approving agency 
or VA; or
    (ii) Lessons completed in a correspondence course in excess of the 
number approved by the State approving agency.
    (2) A school's standards of progress may permit a student to repeat 
a course or portion of a course in which he or she has done poorly. VA 
considers the repeated courses to be part of the program of education. 
VA will make no payment for courses or training if the courses or 
training are not part of the eligible person's program of education.


(Authority: 38 U.S.C. 3501(a)(5), 3521)

    (d) Courses precluded. VA may not pay educational assistance:
    (1) For pursuit of a course if approval of the enrollment in the 
course is precluded by Sec. 21.4252;
    (2) For training in a foreign country unless the training is in the 
Philippines or is approved pursuant to the provisions of Sec. 21.4260; 
or
    (3) For pursuit of a course offered by open-circuit television, 
unless the eligible person's pursuit meets the requirements of Sec. 
21.4233(c).


(Authority: 38 U.S.C. 3523)

    (e) Commencing date. In determining the commencing date of an award 
of educational assistance, VA will apply the provisions of Sec. 
21.4131.


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

[61 FR 26109, May 24, 1996]



Sec. 21.3131  Rates--educational assistance allowance--38 U.S.C. 
chapter 35.

    (a) Rates. Except as provided in Sec. 21.3132, educational 
assistance allowance is payable at the following rates for pursuit of 
education or training that occurs after September 30, 2001, and before 
January 1, 2002:

----------------------------------------------------------------------------------------------------------------
               Type of course                                            Monthly rate
----------------------------------------------------------------------------------------------------------------
Institutional:
    Full time..............................  $608.00
    \3/4\ time.............................  456.00
    \1/2\ time.............................  304.00
    Less than \1/2\ but more than \1/4\      304.00
     time \1\.
    \1/4\ time or less \1\.................  152.00
Cooperative training (other than farm        608.00
 cooperative) (Full time only).
Apprenticeship or on-the-job (full time
 only) \2\:
    First six months.......................  443.00
    Second six months......................  331.00
    Third six months.......................  219.00
    Fourth six months and thereafter.......  111.00
Farm cooperative:
    Full time..............................  491.00
    \3/4\ time.............................  368.00

[[Page 228]]

 
    \1/2\ time.............................  246.00
Correspondence.............................  55 percent of the established charge for the number of lessons
                                              completed by the eligible spouse or surviving spouse and serviced
                                              by the school--Allowance paid quarterly \3\
----------------------------------------------------------------------------------------------------------------
\1\ If an eligible person under 38 U.S.C. chapter 35 pursuing independent study on a less than one-half-time
  basis completes his or her program before the designated completion time, his or her award will be recomputed
  to permit payment of tuition and fees not to exceed $304.00 or $152.00, as appropriate, per month, if the
  maximum allowance is not initially authorized.
\2\ See footnote 5 of Sec. 21.4270(c) for measurement of full time and Sec. 21.3132(c) for proportionate
  reduction in award for completion of less than 120 hours per month.
\3\ Established charge means the charge for the course or courses determined on the basis of the lowest extended
  time payment plan offered by the institution and approved by the appropriate State approving agency or the
  actual cost to the eligible spouse or surviving spouse, whichever is less. VA considers the continuity of an
  enrollment broken when there are more than 6 months between the servicing of the lessons.



(Authority: 38 U.S.C. 3532(a), 3542(a), 3687(b)(2), (d))

    (b) Rates. Except as provided in Sec. 21.3132, educational 
assistance allowance is payable at the following rates for pursuit of 
education or training that occurs after December 31, 2001, and before 
October 1, 2002:

----------------------------------------------------------------------------------------------------------------
               Type of course                                            Monthly rate
----------------------------------------------------------------------------------------------------------------
Institutional:
    Full time..............................  $670.00
    \3/4\ time.............................  503.00
    \1/2\ time.............................  335.00
    Less than \1/2\ but more than \1/4\      335.00
     time \1\.
    \1/4\ time or less \1\.................  167.50
Cooperative training (other than farm        670.00
 cooperative) (Full time only).
Apprenticeship or on-the-job (full time
 only) \2\:
    First six months.......................  488.00
    Second six months......................  365.00
    Third six months.......................  242.00
    Fourth six months and thereafter.......  122.00
Farm cooperative:
    Full time..............................  541.00
    \3/4\ time.............................  406.00
    \1/2\ time.............................  271.00
Correspondence.............................  55 percent of the established charge for the number of lessons
                                              completed by the eligible spouse or surviving spouse and serviced
                                              by the school--Allowance paid quarterly \3\
----------------------------------------------------------------------------------------------------------------
\1\ If an eligible person under 38 U.S.C. chapter 35 pursuing independent study on a less than one-half-time
  basis completes his or her program before the designated completion time, his or her award will be recomputed
  to permit payment of tuition and fees not to exceed $335.00 or $167.50, as appropriate, per month, if the
  maximum allowance is not initially authorized.
\2\ See footnote 5 of Sec. 21.4270(c) for measurement of full time and Sec. 21.3132(c) for proportionate
  reduction in award for completion of less than 120 hours per month.
\3\ Established charge means the charge for the course or courses determined on the basis of the lowest extended
  time payment plan offered by the institution and approved by the appropriate State approving agency or the
  actual cost to the eligible spouse or surviving spouse, whichever is less. VA considers the continuity of an
  enrollment broken when there are more than 6 months between the servicing of the lessons.



(Authority: 38 U.S.C. 3532(a), 3542(a), 3687(b)(2), (d))

    (c) Less than half time. The monthly rate for an eligible person who 
is pursuing an institutional course on less than one-half time basis may 
not exceed the monthly rate of the cost of the course computed on basis 
of the total cost for tuition and fees which the school requires 
similarly circumstanced individuals enrolled in the same course to pay. 
``Cost of the course'' does not include the cost of books or supplies 
which the student is required to purchase at his or her own expense.


(Authority: 38 U.S.C. 3532(a)(2))

    (d) Courses leading to a secondary school diploma or equivalency 
certificate. The monthly rate of Survivors' and Dependents' Educational 
Assistance payable for an eligible person enrolled in a course leading 
to a secondary school diploma or equivalency certificate shall be the 
rate for institutional

[[Page 229]]

training stated in paragraph (a) of this section.


(Authority: 38 U.S.C. 3532(d), 3533)

    (e) Payments made to eligible persons in the Republic of the 
Philippines or to certain Filipinos. When the eligible person is 
pursuing training at an institution located in the Republic of the 
Philippines or when an eligible child's entitlement is based on the 
service of a veteran in the Philippine Commonwealth Army, or as a 
Philippine Scout as defined in Sec. 3.40 (b), (c), or (d) of this 
chapter, payments of educational assistance allowance made after 
December 31, 1994, will be made at the rate of 50 cents for each dollar 
authorized.


(Authority: 38 U.S.C. 3532(d), 3565)

[61 FR 26110, May 24, 1996, as amended at 63 FR 67778, Dec. 9, 1998; 66 
FR 32227, June 14, 2001; 68 FR 34321, June 9, 2003; 68 FR 37206, June 
23, 2003]



Sec. 21.3132  Reductions in survivors' and dependents' educational 
assistance.

    The monthly rates established in Sec. 21.3131 shall be reduced as 
stated in this section whenever the circumstances described in this 
section arise.
    (a) No educational assistance allowance for some incarcerated 
eligible persons. VA will pay no educational assistance allowance to an 
eligible person who:
    (1) Is incarcerated in a Federal, State, or local penal institution 
for conviction of a felony; and
    (2) Is enrolled in a course:
    (i) For which there are no tuition or fees, or charges for books, 
supplies, and equipment; or
    (ii) For which tuition and fees are being paid by a Federal program 
(other than one administered by VA) or by a State or local program, and 
the eligible person is incurring no charge for the books, supplies, and 
equipment necessary for the course.


(Authority: 38 U.S.C. 3532(e))

    (b) Reduced educational assistance allowance for some incarcerated 
eligible persons--felony conviction. (1) VA will pay a reduced 
educational assistance allowance to an eligible person who:
    (i) Is incarcerated in a Federal, State, or local penal institution 
for conviction of a felony; and
    (ii) Is enrolled in a course:
    (A) For which the eligible person pays some (but not all) of the 
charges for tuition and fees; or
    (B) For which a Federal program (other than one administered by VA) 
or a State or local program pays all the charges for tuition and fees, 
but which requires the eligible person to pay for books, supplies, and 
equipment.
    (2) The monthly rate of educational assistance allowance payable to 
such an eligible person who is pursuing a course on a half-time or 
greater basis shall be the lesser of the following:
    (i) The monthly rate of the portion of the tuition and fees that the 
eligible person must pay plus the monthly rate of the charge to the 
eligible person for the cost of necessary supplies, books, and 
equipment; or
    (ii) The monthly rate stated in Sec. 21.3131.
    (3) The monthly rate of educational assistance payable to such an 
eligible person who is pursuing the course on a less than half-time 
basis or on a one quarter-time basis shall be the lowest of the 
following:
    (i) The monthly rate of the tuition and fees charged for the course;
    (ii) The monthly rate of tuition and fees which the eligible person 
must pay plus the monthly rate of the charge to the eligible person for 
the cost of necessary supplies, books, and equipment; or
    (iii) The monthly rate stated in Sec. 21.3131.


(Authority: 38 U.S.C. 3482(g))

    (c) Reduction in training assistance allowance. (1) For any month in 
which an eligible person pursuing an apprenticeship or on-job training 
program fails to complete 120 hours of training, VA shall reduce the 
rate specified in Sec. 21.3131(a) proportionally. In this computation 
VA shall round the number of hours worked to the nearest multiple of 
eight.
    (2) For the purpose of this paragraph hours worked include only:
    (i) The training hours the eligible person worked; and

[[Page 230]]

    (ii) All hours of the eligible person's related training which 
occurred during the standard workweek and for which the eligible person 
received wages.


(Authority: 38 U.S.C. 3687(b)(3))

    (d) Mitigating circumstances. (1) VA will not pay benefits to any 
eligible person for a course from which the eligible person withdraws or 
receives a nonpunitive grade which is not used in computing the 
requirements for graduation unless the provisions of this paragraph are 
met.
    (i) The eligible person withdraws because he or she is ordered to 
active duty; or
    (ii) All of the following criteria are met:
    (A) There are mitigating circumstances;
    (B) The eligible person submits a description of the circumstances 
in writing to VA either within one year from the date VA notifies the 
eligible person that he or she must submit the mitigating circumstances 
or at a later date if the eligible person is able to show good cause why 
the one-year time limit should be extended to the date on which he or 
she submitted the description of the mitigating circumstances; and
    (C) The eligible person submits evidence supporting the existence of 
mitigating circumstances within one year of the date that evidence is 
requested by VA, or at a later date if the eligible person is able to 
show good cause why the one-year time limit should be extended to the 
date on which he or she submitted the evidence supporting the existence 
of mitigating circumstances.


(Authority: 38 U.S.C. 3680(a); Pub. L. 102-127)(Aug. 1, 1990)

    (2) The following circumstances are representative of those which 
the Department of Veterans Affairs considers to be mitigating provided 
they prevent the eligible person from pursuing the program of education 
continuously. This list is not all inclusive.
    (i) An illness of the eligible person,
    (ii) An illness or death in the eligible person's family,
    (iii) An unavoidable geographical transfer resulting from the 
eligible person's employment,
    (iv) An unavoidable change in the eligible person's conditions of 
employment,
    (v) Immediate family or financial obligations beyond the control of 
the eligible person which require him or her to suspend pursuit of the 
program of education to obtain employment,
    (vi) Discontinuance of a course by a school,
    (vii) Unanticipated active duty for training,
    (viii) Unanticipated difficulties in caring for the eligible 
person's child or children.


(Authority: 38 U.S.C. 3680)

    (3) If the eligible child fails to complete satisfactorily a course 
of special restorative training or if the eligible person fails to 
complete satisfactorily a course under section 3533, Title 38 U.S.C., 
without fault, the Department of Veterans Affairs will consider the 
circumstances which caused the failure to be mitigating. This will be 
the case even if the circumstances were not so severe as to preclude 
continuous pursuit of a program of education.
    (4) In the first instance of a withdrawal after May 31, 1989, from a 
course or courses for which the eligible person received educational 
assistance under title 38 U.S.C. or under chapter 1606, title 10 U.S.C., 
VA will consider that mitigating circumstances exist with respect to 
courses totaling not more than six semester hours or the equivalent. 
Eligible persons to whom the provisions of this subparagraph apply are 
not subject to the reporting requirement found in paragraph (d)(1)(ii) 
of this section.


(Authority: 38 U.S.C. 3680(a)(4); Pub. L. 100-689)

    (5) If an eligible person withdraws from a course during a drop-add 
period, VA will consider the circumstances which caused the withdrawal 
to be mitigating. Eligible persons who withdraw from a course during a 
drop-add period are not subject to the reporting requirement found in 
paragraph (d)(1)(ii) of this section.


(Authority: 38 U.S.C. 3680(a))

[31 FR 6774, May 6, 1966]

[[Page 231]]


    Editorial Note: For Federal Register citations affecting Sec. 
21.4137, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 21.3133  Payment procedures.

    (a) Release of payments and payment procedures. In determining 
whether payments of educational assistance allowance may be made in a 
lump sum, in advance, for an interval or if a certification is required 
from an eligible person before a payment may be made, VA will apply the 
provisions of Sec. 21.4138.


(Authority: 38 U.S.C. 3680)

    (b) Payee. (1) VA will pay an educational assistance allowance to 
the eligible person if he or she has attained majority and has no known 
legal disability.
    (2) If an eligible person has not attained majority, VA will pay an 
educational assistance allowance directly to an eligible person, a 
relative, or some other person for the use and benefit of the eligible 
person notwithstanding a legal disability on the part of the eligible 
person when VA determines:
    (i) The best interest of the eligible person would be served;
    (ii) Undue delay in payment would be avoided; or
    (iii) Payment would otherwise not be feasible.


(Authority: 38 U.S.C. 3501(a)(4), 3501(c), 3531(a), 5502)

    (c) Payment of accrued benefits. Educational assistance remaining 
due and unpaid at the date of the eligible person's death is payable 
under the provisions of Sec. 3.1000 of this chapter.


(Authority: 38 U.S.C. 5121)

    (d) Tutorial assistance. An individual who is otherwise eligible to 
receive benefits under the Survivors' and Dependents' Educational 
Assistance program may receive supplemental monetary assistance to 
provide tutorial services. In determining whether VA will pay the 
individual this assistance, VA will apply the provisions of Sec. 
21.4236.


(Authority: 38 U.S.C. 3492, 3533(b))

    (e) Offsets: 38 U.S.C. chapter 35, compensation, pension and 
dependency and indemnity compensation. Payment of dependents' 
educational assistance will be subject to offset of amounts of pension, 
compensation or dependency and indemnity compensation paid over the same 
period on behalf of a child based on school attendance.


(Authority: 38 U.S.C. 3562)

    (f) Final payment. VA may withhold final payment until VA receives 
proof of continued enrollment and adjusts the eligible person's account.


(Authority: 38 U.S.C. 3680)

[61 FR 26111, May 24, 1996]



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

    The reduction or discontinuance date of an award of educational 
assistance will be as stated in this section. If more than one basis for 
reduction or discontinuance is involved, the earliest date will control.
    (a) Ending date of course. Educational assistance allowance will be 
discontinued on the ending date of the course or period of enrollment as 
certified by the school.


(Authority: 38 U.S.C. 3531, 3680(a))

    (b) Ending date of eligibility. Educational assistance allowance 
will be discontinued on the ending date of the eligible person's 
eligibility as determined by Sec. 21.3041, Sec. 21.3042, Sec. 
21.3043, or Sec. 21.3046.


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

    (c) General reduction or discontinuance dates. Educational 
assistance allowance will be reduced or discontinued on the date 
specified in Sec. 21.4135.


(Authority: 38 U.S.C. 3482(g), 3531, 3671(g), 3672(a), 3680, 3683, 3690, 
5112, 5113, 6103, 6104, 6105)

    (d) Divorce. If the veteran and eligible spouse divorce, the 
discontinuance date

[[Page 232]]

for the eligible spouse's award of educational assistance will be:
    (1) The end of the quarter or semester if the school is operated on 
a quarter or semester system, and the divorce was without fault on the 
eligible spouse's part;
    (2) The end of the course or a 12-week period, whichever is earlier, 
if the school does not operate on a quarter or semester system, and the 
divorce was without fault on the eligible spouse's part; or
    (3) In all other instances, the date the divorce decree becomes 
final.


(Authority: 38 U.S.C. 3501(a)(1)(D), 3511(b))

    (e) Remarriage or other relationship of spouse or surviving spouse. 
(1) If an eligible surviving spouse remarries, the date of 
discontinuance of his or her award of educational assistance allowance 
will be the last date of attendance before remarriage.
    (2) If a spouse or surviving spouse begins a relationship by living 
with another person and holding himself or herself out openly to the 
public to be the spouse of the other person, the date of discontinuance 
of his or her award of educational assistance allowance will be the last 
date of the month before the spouse's or surviving spouse's relationship 
began.


(Authority: 38 U.S.C. 101(3), 3501(a)(1)(B))

    (f) Entrance on active duty (Sec. 21.3042). If an eligible person 
enters on active duty, VA will terminate his or her educational 
assistance allowance on the day before the day of entrance on active 
duty. Brief periods of active duty for training, if the school permits 
such an absence without interruption of training, will not result in 
termination of the allowance under this paragraph.


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

    (g) Eligible child ceases to be a stepchild. When an eligible child 
loses eligibility because he or she ceases to be the stepchild of the 
veteran, VA will discontinue the dependent's educational assistance 
allowance on the last day of the child's eligibility as determined by 
Sec. 21.3041(d)(9).


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

    (h) Veteran no longer rated permanently and totally disabled. (1) If 
the veteran on whose service an eligible person's eligibility is based 
is no longer permanently and totally disabled, VA will discontinue the 
educational assistance allowance--
    (i) On the last date of the quarter or semester during which VA 
rated the veteran as no longer permanently and totally disabled if the 
eligible person's educational institution is organized on a quarter or 
semester basis; or
    (ii) On the earlier of the following dates when the eligible 
person's educational institution is not organized on a quarter or 
semester basis:
    (A) The last date of the course;
    (B) The end of a 12-week period beginning on the date VA rated the 
veteran as being no longer permanently and totally disabled.


ty: 38 U.S.C. 3511(b), 3512(a)(6)(A))

    (i) Serviceperson is removed from ``missing status'' listing. (1) If 
the serviceperson on whose service an eligible person's eligibility is 
based is removed from the ``missing status'' listing, VA will 
discontinue the educational assistance allowance--
    (i) On the last date of the quarter or semester during which the 
serviceperson was removed from the ``missing status'' listing if the 
eligible person's educational institution is organized on a quarter or 
semester basis; or
    (ii) On the earlier of the following dates when the eligible 
person's educational institution is not organized on a quarter or 
semester basis:
    (A) The last date of the course;
    (B) The end of a 12-week period beginning on the date the 
serviceperson was removed from the ``missing status'' listing.


(Authority: 38 U.S.C. 3512(a)(6)(A))

[61 FR 26111, May 24, 1996]

                      Special Restorative Training



Sec. 21.3300  Special restorative training.

    (a) Purpose of special restorative training. The Department of 
Veterans Affairs may prescribe special restorative training where needed 
to overcome or

[[Page 233]]

lessen the effects of a physical or mental disability for the purpose of 
enabling an eligible child to pursue a program of education, special 
vocational program or other appropriate goal. Medical care and treatment 
or psychiatric treatment are not included.
    (b) Special restorative training courses. The counseling 
psychologist, after consulting with the Vocational Rehabilitation Panel, 
may prescribe for special restorative training purposes courses such 
as--
    (1) Speech and voice correction or retention,
    (2) Language retraining,
    (3) Speech (lip) reading,
    (4) Auditory training,
    (5) Braille reading and writing,
    (6) Training in ambulation,
    (7) One-hand typewriting,
    (8) Nondominant handwriting,
    (9) Personal, social and work adjustment training,
    (10) Remedial reading, and
    (11) Courses at special schools for mentally and physically disabled 
or
    (12) Courses provided at facilities which are adapted or modified to 
meet special needs of disabled students.


(Authority: 38 U.S.C. 3540)

    (c) Duration of special restorative training. VA may provide special 
restorative training in excess of 45 months where an additional period 
of time is needed to complete the training. Entitlement, including any 
authorized in excess of 45 months, may be expended through an 
accelerated program requiring a rate of payment for tuition and fees in 
excess of--
    (1) $190.00 a month for the period beginning October 1, 2001, and 
ending December 31, 2001;
    (2) $210.00 a month for months after December 31, 2001.


(Authority: 38 U.S.C. 3541(b), 3542)

    (d) Special restorative training precluded in Department of Veterans 
Affairs facilities. Special restorative training will not be provided in 
Department of Veterans Affairs facilities.


(Authority: 38 U.S.C. 3543(b))

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42725, Oct. 24, 1984; 
50 FR 19934, May 13, 1985; 63 FR 67779, Dec. 9, 1998; 66 FR 32228, June 
14, 2001; 68 FR 34322, June 9, 2003]



Sec. 21.3301  Need.

    (a) Determination of need. When special restorative training has 
been requested or is being considered for a handicapped child, a 
counseling psychologist will obtain all information necessary to 
determine the need for and feasibility of special restorative training. 
After the counseling psychologist completes this task, he or she will 
refer the case to the Vocational Rehabilitation Panel. The panel will 
consider whether--
    (1) There exists a handicap which will interfere with pursuit of a 
program of education;
    (2) It is in the best interests of an eligible child to begin 
special restorative training after his or her 14th birthday;
    (3) The period of special restorative training materially will 
improve the eligible child's ability to:
    (i) Pursue a program of education,
    (ii) Pursue a program of specialized vocational training,
    (iii) Obtain continuing employment in a sheltered workshop, or
    (iv) Adjust in his or her family or community;


(Authority: 38 U.S.C. 3541(a))

    (4) The special restorative training may be pursued concurrently 
with a program of education; and
    (5) Training will affect adversely the child's mental or physical 
condition;
    (6) The Department of Veterans Affairs:
    (i) Has considered assistance available under provisions of State-
Federal programs for education of handicapped children, and
    (ii) Has determined that it is in the child's interest to receive 
benefits under Chapter 35,


(Authority: 38 U.S.C. 3541(a))


[[Page 234]]


    (b) Report. The Vocational Rehabilitation Panel will prepare a 
written report of its findings and recommendations as to the need for 
assistance and the types of assistance which should be provided. The 
report will be sent to the counseling psychologist.
    (c) Development and implementation. Following consultation with the 
panel or receipt of the panel's report, or both, the counseling 
psychologist will determine the need and feasibility of special 
restorative training. If an affirmative finding is made, an 
individualized, written plan comparable to that developed in cases of 
extended evaluation under 38 U.S.C. Chapter 31 will be prepared. The 
plan will be developed jointly with the eligible child and parent or 
guardian.


(Authority: 38 U.S.C. 3541(a))

    (d) Notification of disallowance. When a parent or guardian has 
requested special restorative training on behalf of an eligible child, 
and the counseling psychologist finds that this training is not needed 
or will not materially improve the child's condition, the Department of 
Veterans Affairs will inform the parent or guardian in writing of the 
finding. The Department of Veterans Affairs will also inform the parent 
or guardian of his or her appeal rights.
    (e) Reentrance after interruption. The case of an eligible child 
shall be referred to the panel for consideration of whether the eligible 
child may be permitted reentrance into special restorative training 
following interruption. The panel will recommend approval to the 
counseling psychologist if there is a reasonable expectation that the 
purpose of special restorative training will be accomplished. See Sec. 
21.3306.


(Authority: 38 U.S.C. 3540)

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42725, Oct. 24, 1984]



Sec. 21.3302  Agreements.

    (a) Agreements to provide training. The Department of Veterans 
Affairs may make agreements with public or private educational 
institutions or others to provide suitable and necessary special 
restorative training for an eligible child.
    (b) Tuition charge. When a customary tuition charge is not 
applicable, the agreement will include the fair and reasonable amounts 
which may be charged the parent or guardian for the training provided an 
eligible child.
    (c) Content of agreement. Each agreement will include the same type 
of information required for special restorative training for disabled 
veterans under 38 U.S.C. Chapter 31, including the requirement that the 
educational institutions, or others with whom arrangements have been 
made, report to the Department of Veterans Affairs promptly the eligible 
child's enrollment in, interruption or termination of the course of 
special restorative training.

(Authority: 38 U.S.C. 3543)

[48 FR 37973, Aug. 22, 1983]



Sec. 21.3303  Extent of training.

    (a) Length of special restorative training. Ordinarily, special 
restorative training may not exceed 12 months. When the counseling 
psychologist, after consulting with the Vocational Rehabilitation Panel, 
determines that more than 12 months of training is necessary, he or she 
will refer the program to the Director, Vocational Rehabilitation and 
Employment Service for prior approval. Where the plan for a program of 
special restorative training itself (not in combination with the program 
of education) will require more than 45 months (or its equivalent in 
accelerated payments) the plan will be included in the recommendation to 
the Director, Vocational Rehabilitation and Employment Service for 
approval.


(Authority: 38 U.S.C. 3543(b))

    (b) Age limitation. No eligible child may receive special 
restorative training after reaching age 31.


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

    (c) Full-time training. An eligible child will pursue special 
restorative training on a full-time basis.
    (1) Full-time training requires training for:
    (i) That amount of time per week which commonly is required for a 
full-time course at the educational institution when, based on medical 
findings,

[[Page 235]]

the Department of Veterans Affairs determines that the eligible child's 
physical or mental condition permits training for that amount of time, 
or
    (ii) The maximum time per week permitted by the child's disability, 
as determined by the Department of Veterans Affairs, based on medical 
findings, if the disability precludes the weekly training time stated in 
paragraph (c)(1)(i) of this section.
    (2) If the hours per week that can reasonably be devoted to 
restorative training will not of themselves equal the time required by 
paragraph (c)(1) of this section, the course will be supplemented with 
subject matter which will contribute toward the objective of the program 
of education.


(Authority: 38 U.S.C. 3542(c))

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24, 1984]



Sec. 21.3304  Assistance during training.

    (a) General. A vocational rehabilitation specialist will provide the 
professional and technical assistance needed by the eligible child in 
pursuing special restorative training. The assistance will be timely, 
sustained and personal.
    (b) Adjustments in the training situation. The vocational 
rehabilitation specialist must be continually aware of the eligible 
child's progress. At frequent intervals he or she will determine whether 
the eligible child is progressing satisfactorily. When the vocational 
rehabilitation specialist determines that adjustments are needed in the 
course or in the training situation, he or she will act immediately to 
bring about the adjustments in accordance with the following:
    (1) When the eligible child or his or her instructor indicates 
dissatisfaction with elements of the program, the vocational 
rehabilitation specialist, through personal discussion with the eligible 
child or his or her instructor or both, will, if possible, correct the 
difficulty through such means as making minor adjustments in the course 
or by persuading the eligible child to give more attention to 
performance.
    (2) When major difficulties cannot be corrected, the vocational 
rehabilitation specialist will prepare a report of pertinent facts and 
recommendations for action by the counseling psychologist in 
consultation with the Vocational Rehabilitation Panel.
    (3) Action will be taken to terminate the eligible child's course at 
the proper time so that his or her entitlement may be conserved when the 
vocational rehabilitation specialist determines that:
    (i) The eligible child is progressing much faster than anticipated, 
and
    (ii) The eligible child's course may be terminated with satisfactory 
results before the time originally planned.

(Authority: 38 U.S.C. 3541)

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24, 1984]



Sec. 21.3305  ``Interrupted'' status.

    (a) Special restorative training should be uninterrupted. An 
eligible child once entered into special restorative training should 
pursue his or her course to completion without interruption. Wherever 
possible, continuous training shall be provided for each eligible child, 
including training during the summer, except where, because of his or 
her physical condition or other good reason, it would not be to his or 
her best interest to pursue training. As long as the eligible child is 
progressing satisfactorily toward overcoming his or her handicap, the 
eligible child will be continued in his or her course of training 
without accounting for days of nonattendance within the authorized 
enrollment.


(Authority: 38 U.S.C. 3541)

    (b) Interrupting special restorative training. Special restorative 
training will be interrupted as necessary under the following 
conditions:
    (1) During summer vacations or periods when no instruction is given 
before and after summer sessions.
    (2) During a prolonged period of illness or medical infeasibility.
    (3) When the eligible child voluntarily abandons special restorative 
training.
    (4) When the eligible child fails to make satisfactory progress in 
the special restorative training course.

[[Page 236]]

    (5) When the eligible child is no longer acceptable to the 
institution because of failure to maintain satisfactory conduct or 
progress in accordance with the rules of the institution.
    (6) When the eligible child's progress is materially retarded 
because of his or her negligence, lack of application or misconduct.


(Authority: 38 U.S.C. 3541, 3543(b))

[48 FR 37973, Aug. 22, 1983]



Sec. 21.3306  Reentrance after interruption.

    When a course of special restorative training has been interrupted 
and the eligible child presents himself or herself for reentrance, the 
Department of Veterans Affairs will act as follows:
    (a) Action by a vocational rehabilitation specialist. A vocational 
rehabilitation specialist will approve reentrance when special 
restorative training was interrupted:
    (1) For a scheduled vacation period, such as a summer break,
    (2) For a short period of illness, or
    (3) For other reasons which permit reentrance in the same course of 
special restorative training without corrective action.


(Authority: 38 U.S.C. 3543(b))

    (b) Referral to the counseling psychologist. (1) The vocational 
rehabilitation specialist will refer the eligible child's case to the 
counseling psychologist when special restorative training was 
interrupted--
    (i) By reason of failure to maintain satisfactory conduct or 
progress, or
    (ii) For any other reason, which requires corrective action, such as 
changes of place of training, change of course, personal adjustment, 
etc.
    (2) The counseling psychologist will consult with the Vocational 
Rehabilitation Panel. If he or she determines that the conditions which 
caused the interruption can be overcome, he or she will approve the 
necessary adjustment.
    (3) The counseling psychologist will make a finding of infeasibility 
if--
    (i) All efforts to effect proper adjustment in the case have failed; 
and
    (ii) There is substantial evidence, resolving any reasonable doubt 
in favor of the child (as discussed in Sec. 3.102 of this chapter), 
that additional efforts will be unsuccessful.


(Authority: 38 U.S.C. 3541, 3543(b))

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24, 1984]



Sec. 21.3307  ``Discontinued'' status.

    (a) Placement in ``discontinued'' status. If reentrance from 
interrupted status into a program of special restorative training is not 
approved by a counseling psychologist under the provisions of Sec. 
21.3306, the vocational rehabilitation specialist will place the case in 
discontinued status.
    (b) Notification. In any case of discontinuance the Department of 
Veterans Affairs will:
    (1) Notify the eligible child's parent or guardian of the action 
taken, and
    (2) Inform him or her of the eligible child's potential right to a 
program of education.
    (c) Effect of discontinuance. An eligible child who has been placed 
in discontinued status is precluded from any further pursuit of special 
restorative training until a Department of Veterans Affairs counseling 
psychologist in the Vocational Rehabilitation and Employment Division 
determines that the cause of the discontinuance has been removed.

(Authority: 38 U.S.C. 3543(b))

[48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24, 1984]

                 Payments; Special Restorative Training



Sec. 21.3330  Payments.

    (a) Payments will be made to the person designated to receive the 
payments under the provisions of Sec. 21.3133(b).
    (b) VA will pay special training allowance only for the period of 
the eligible child's approved enrollment as certified by the vocational 
rehabilitation specialist. In no event, however, will VA pay such 
allowance for any period during which:
    (1) The eligible child is not pursuing the prescribed course of 
special restorative training that has been determined to be full-time 
training with respect to his or her capacities.

[[Page 237]]

    (2) An educational assistance allowance is paid.


(Authority: 38 U.S.C. 3542)

    (c) The provisions of Sec. 21.3133(e) apply to the payment of 
special restorative training allowance.


(Authority: 38 U.S.C. 3562)

[30 FR 15646, Dec. 18, 1965, as amended at 31 FR 6774, May 6, 1966; 50 
FR 21606, May 28, 1985; 61 FR 26112, May 24, 1996]



Sec. 21.3331  Commencing date.

    The commencing date of an authorization of a special training 
allowance will be the date of entrance or reentrance into the prescribed 
course of special restorative training, or the date the counseling 
psychologist approved the course for the eligible child whichever is 
later. See also Sec. 21.3130(c).

(Authority: 38 U.S.C. 3542)

[49 FR 42726, Oct. 24, 1984, as amended at 61 FR 26112, May 24, 1996]



Sec. 21.3332  Discontinuance dates.

    VA will discontinue special training allowance as provided in this 
section on the earliest date of the following:
    (a) The ending date of the course.
    (b) The ending date of the period of enrollment as certified by the 
vocational rehabilitation specialist.
    (c) The ending date of the period of eligibility.
    (d) The expiration of the eligible child's entitlement.
    (e) Date of interruption of course as determined by the vocational 
rehabilitation specialist under Sec. 21.3305.
    (f) Date of discontinuance under the applicable provisions of Sec. 
21.3130(d).

(Authority: 38 U.S.C. 3543(b))

[50 FR 21606, May 28, 1985, as amended at 61 FR 26112, May 24, 1996]



Sec. 21.3333  Rates.

    (a) Rates. Special training allowance is payable at the following 
monthly rates, except as provided in paragraph (c) of this section.
    (1) For special restorative training that occurs after September 30, 
2001, and before January 1, 2002.

------------------------------------------------------------------------
             Course               Monthly  rate     Accelerated charges
------------------------------------------------------------------------
Special restorative training...         $608.00   If costs for tuition
                                                   and fees average in
                                                   excess of $190.00 per
                                                   month, rate may be
                                                   increased by such
                                                   amount in excess of
                                                   $190.00.
------------------------------------------------------------------------



(Authority: 38 U.S.C. 3542)

    (2) For special restorative training that occurs after December 31, 
2001:

------------------------------------------------------------------------
             Course               Monthly  rate     Accelerated charges
------------------------------------------------------------------------
Special restorative training...         $670.00   If costs for tuition
                                                   and fees average in
                                                   excess of $210.00 per
                                                   month, rate may be
                                                   increased by such
                                                   amount in excess of
                                                   $210.00.
------------------------------------------------------------------------



(Authority: 38 U.S.C. 3542)

    (b) Accelerated charges. (1) VA may pay the additional monthly rate 
if the parent or guardian concurs in having the eligible child's period 
of entitlement reduced by 1 day for each $20.28 that the special 
training allowance exceeds the basic monthly rate of $608.00 for the 
period October 1, 2001, through December 31, 2001, and for each $22.33 
that the special training allowance exceeds the basic monthly rate of 
$670.00 for months beginning January 1, 2002.
    (2) VA will:
    (i) Charge fractions of more than one-half day as 1 day;
    (ii) Disregard fractions of one-half or less; and
    (iii) Record charges when the eligible child is entered into 
training.


(Authority: 38 U.S.C. 3542)


[[Page 238]]


    (c) Payments made to eligible persons in the Republic of the 
Philippines or to certain Filipinos. When the eligible person is 
pursuing training at an institution located in the Republic of the 
Philippines or when an eligible child's entitlement is based on the 
service of a veteran in the Philippine Commonwealth Army, or as a 
Philippine Scout as defined in Sec. 3.40(b), (c), or (d) of this 
chapter, payments of special training allowance made after December 31, 
1994, will be made at the rate of 50 cents for each dollar authorized.


(Authority: 38 U.S.C. 3532(d), 3542, 3565)

[35 FR 9814, June 16, 1970, as amended at 48 FR 37975, Aug. 22, 1983; 50 
FR 19934, May 13, 1985; 57 FR 29799, July 7, 1992; 61 FR 29295, June 10, 
1996; 63 FR 67779, Dec. 9, 1998; 66 FR 32228, June 14, 2001; 68 FR 
34322, June 9, 2003; 68 FR 37206, June 23, 2003]

                     Special Assistance and Training



Sec. 21.3344  Special assistance for the educationally disadvantaged.

    (a) Enrollment. VA may approve the enrollment of an eligible person 
in an appropriate course or courses at the secondary school level. This 
approval may be made only if the eligible person--
    (1) Has not received a secondary school diploma (or an equivalency 
certificate);
    (2) Needs additional secondary school education, remedial, 
refresher, or deficiency courses, to qualify for admission to an 
appropriate educational institution in a State in order to pursue a 
program of education; and
    (3) Is to pursue the course or courses in a State.


(Authority: 38 U.S.C. 3491(a), 3533)

    (b) Measurement. VA will measure remedial, deficiency, or refresher 
courses offered at the secondary school level as provided in Sec. Sec. 
21.4270(a)(2) and 21.4272(k).


(Authority: 38 U.S.C. 3533)

    (c) Educational assistance. VA will authorize educational assistance 
at the monthly rates specified in Sec. 21.3131.


(Authority: 38 U.S.C. 3491(a), 3533)

    (d) Entitlement charge. The provisions of Sec. 21.3045 will 
determine whether VA will make a charge against the period of the 
entitlement of the eligible person because of enrollment in a course 
under the provisions of this section.


(Authority: 38 U.S.C. 3533)

    (e) Certifications. (1) Certifications of the eligible person's need 
for deficiency or remedial courses in basic English language skills and 
mathematics skills may be made by:
    (i) A VA counseling psychologist in the Vocational Rehabilitation 
and Employment Division;
    (ii) The educational institution administering the course; or
    (iii) The educational institution where the student has applied for 
admission.
    (2) Certification of need for other refresher, remedial or 
deficiency course requirements are to be made by the educational 
institution--
    (i) Administering the course which the eligible person is planning 
to enter; or
    (ii) Where the eligible person has applied for admission.


(Authority: 38 U.S.C. 3533)

    (f) Basic skills. Basic English language courses or mathematics 
courses will be authorized when it is found by accepted testing methods 
that the eligible person is lacking in basic reading, writing, speaking, 
or essential mathematics.

(Authority: 38 U.S.C. 3533)

[61 FR 26112, May 24, 1996]



       Subpart D_Administration of Educational Assistance Programs

    Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 
32, 34, 35, 36, unless otherwise noted.

    Source: 31 FR 6774, May 6, 1966, unless otherwise noted.

                             Administrative



Sec. 21.4001  Delegations of authority.

    (a) Except as otherwise provided, authority is delegated to the 
Under Secretary for Benefits and to supervisory or adjudicative 
personnel within the

[[Page 239]]

jurisdiction of the Education Service, designated by him or her to make 
findings and decisions under 38 U.S.C. Chapters 34 and 36 and the 
applicable regulations, precedents and instructions, as to programs 
authorized by these paragraphs.
    (b) Authority is delegated to the Under Secretary for Benefits and 
the Director, Education Service, to enter into agreements for the 
reimbursement of State approving agencies under Sec. 21.4153.


(Authority: 38 U.S.C. 512(a))

    (c) Authority is delegated to the Director, Education Service, to 
exercise the functions required of the Secretary for:
    (1) Waiver of penalties for conflicting interests as provided by 
Sec. 21.4005;
    (2) Actions otherwise required of State approving agencies under 
Sec. 21.4150(c);
    (3) Approval of courses under Sec. 21.4250(c)(2).


(Authority: 38 U.S.C. 512(c))

    (d) The Under Secretary for Benefits is delegated responsibility for 
obtaining evidence of voluntary compliance for vocational 
rehabilitation, education and special restorative training to implement 
Title VI, Civil Rights Act of 1964. Authority is delegated to him or her 
and his or her designee to take any necessary action as to programs of 
vocational rehabilitation, education or special restorative training 
under 38 U.S.C. Chapters 31, 34, 35 and 36 for the purpose of securing 
evidence of voluntary compliance directly or through the agencies to 
whom the Secretary has delegated responsibility for various schools or 
training establishments to implement Sec. Sec. 18.1 through 18.13 of 
this chapter.
    (e) The Under Secretary for Benefits is delegated responsibility for 
obtaining evidence of voluntary compliance from recognized national 
organizations whose representatives are afforded space and office 
facilities in facilities under his or her jurisdiction.
    (f) The Under Secretary for Benefits is delegated responsibility to 
enter into an agreement with the Federal Trade Commission to utilize, 
where appropriate, its services and facilities, consistent with its 
available resources, to carry out investigations and make determinations 
as to enrollment of an eligible veteran or eligible person in any course 
offered by an institution which utilizes advertising, sales, or 
enrollment practices of any type which are erroneous, deceptive, or 
misleading either by actual statement, omission, or intimation.


(Authority: 38 U.S.C. 3696)

    (g) Authority is delegated to the Director, Vocational 
Rehabilitation and Employment Service to exercise the functions required 
of the Secretary for approval of courses under Sec. 21.4250(c)(1).


(Authority: 38 U.S.C. 512(a))

[31 FR 6774, May 6, 1966, as amended at 40 FR 31759, July 29, 1975; 48 
FR 37975, Aug. 22, 1983; 50 FR 46764, Nov. 13, 1985; 61 FR 26112, May 
24, 1996]



Sec. 21.4002  Finality of decisions.

    (a) The decision of a duly constituted agency of original 
jurisdiction on which an action was predicated will be final and binding 
upon all field offices of the Department of Veterans Affairs as to 
conclusions based on evidence on file at that time and will not be 
subject to revision on the same factual basis except by duly constituted 
appellate authorities or except as provided in Sec. 21.4003. (See 
Sec. Sec. 19.192 and 19.183 of this chapter.)
    (b) Current determinations of line of duty, character of discharge, 
relationship, and other pertinent elements of eligibility for a program 
of education or special restorative training, made by either an 
adjudicative activity or an insurance activity by application of the 
same criteria and based on the same facts are binding one upon the other 
in the absence of clear and unmistakable error.

[31 FR 6774, May 6, 1966, as amended at 48 FR 37976, Aug. 22, 1983]



Sec. 21.4003  Revision of decisions.

    The revision of a decision on which an action was predicated will be 
subject to the following sections:
    (a) Clear and unmistakable error, Sec. 3.105(a) of this chapter;

[[Page 240]]

    (b) Difference of opinion, Sec. 3.105(b) of this chapter;
    (c) Character of discharge, Sec. 3.105(c) of this chapter;
    (d) Severance of service connection, Sec. 3.105(d) of this chapter;
    (e) Veteran no longer totally and permanently disabled, Sec. 
21.4135(o).



Sec. 21.4005  Conflicting interests.

    (a) General. (1) An officer or employee of VA will be immediately 
dismissed from his or her office or employment, if while such an officer 
or employee he or she has owned any interest in, or received any wages, 
salary, dividends, profits, gratuities, or services from, any school 
operated for profit in which a veteran or eligible person was pursuing a 
course of education under 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 
30, 32, 34, 35 or 36.


(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3034(a), 3241, 3683(a))

    (2) VA will discontinue payments under Sec. 21.4153 to a State 
approving agency when the Secretary finds that any person who is an 
officer or employee of a State approving agency has, while he or she was 
such an officer or employee, owned any interest in, or received any 
wages, salary, dividends, profits, gratuities, or services from a school 
operated for profit in which a veteran or eligible person was pursuing a 
course of education or training under 10 U.S.C. chapter 1606 or 38 
U.S.C. chapters 30, 32, 34, 35 or 36 unless that agency takes, without 
delay such steps as may be necessary to terminate the employment of such 
a person. VA will not resume payments while such a person is an officer 
or employee of
    (i) The State approving agency, or
    (ii) State Department of Veterans' Affairs, or
    (iii) State Department of Education.
    (3) A State approving agency will not approve any course offered by 
a school operated for profit and, if any such course has been approved, 
will disapprove each such course, if it finds that any officer or 
employee of the Department of Veterans Affairs, or the State approving 
agency owns an interest in, or receives any wages, salary, dividends, 
profits, gratuities, or service from, such school.
    (4) The Secretary may, after reasonable notice, and public hearings 
if requested, waive in writing the application of this paragraph in the 
case of any officer or employee of the Department of Veterans Affairs or 
of a State approving agency, if it is found that no detriment will 
result to the United States or to veterans or eligible persons by reason 
of such interest or connection of such officer or employee.


(Authority: 38 U.S.C. 3683)

    (b) Waiver. (1) Where a request is made for waiver of application of 
paragraph (a)(1) of this section, it will be considered that no 
detriment will result to the United States or to veterans or eligible 
persons by reason of such interest or connection of such officer or 
employee of the Department of Veterans Affairs, if the officer or 
employee:
    (i) Acquired his or her interest in the school by operation of law, 
or before the statute became applicable to the officer or employee, and 
his or her interest has been disposed of and his or her connection 
discontinued, or
    (ii) Meets all of the following conditions:
    (a) His or her position involves no policy determinations, at any 
administrative level, having to do with matters pertaining to payment of 
educational assistance allowance, or special training allowance.
    (b) His or her position has no relationship with the processing of 
any veteran's or eligible person's application for education or 
training.
    (c) His or her position precludes him or her from taking any 
adjudicative action on individual applications for education or 
training.
    (d) His or her position does not require him or her to perform 
duties involved in the investigation of irregular actions on the part of 
schools or veterans or eligible persons in connection with 10 U.S.C. 
chapter 1606 or 38 U.S.C. chapters 30, 32, 34, 35 or 36.
    (e) His or her position is not connected with the processing of 
claims by, or payments to, schools, or their students enrolled under the 
provisions of 10 U.S.C. chapter 1606 or 38 U.S.C. chapters 30, 32, 34, 
35 or 36.

[[Page 241]]

    (f) His or her work is not connected in any way with the inspection, 
approval, or supervision of schools desiring to train veterans or 
eligible persons.
    (2) Where a request is made for waiver of application of paragraph 
(a) (2) of this section, it will be considered that no detriment will 
result to the United States or to veterans or eligible persons by reason 
of such interest or connection of such officer or employee of a State 
approving agency, if the officer or employee:
    (i) Acquired his or her interest in the school by operation of law, 
or before the statute became applicable to the officer or employee, and 
his or her interest has been disposed of and his or her connection 
discontinued, or
    (ii) Meets all of the following conditions:
    (a) His or her position does not require him or her to perform 
duties involved in the investigation of irregular actions on the part of 
schools or veterans or eligible persons in connection with 10 U.S.C. 
chapter 1606 or 38 U.S.C. chapters 30, 32, 34, 35 or 36.


(Authority: 10 U.S.C. 16136(b), 38 U.S.C. 3034(a), 3241, 3683(b))

    (b) His or her work is not connected in any way with the inspection, 
approval, or supervision of schools desiring to train veterans or 
eligible persons.
    (c) Authority. (1) Authority is delegated to the Director, Education 
Service, and to the facility head in the cases of VA employees under his 
or her jurisdiction, to waive the application of paragraph (a)(1) of 
this section in the case of any VA employee who meets the criteria of 
paragraph (b)(1) of this section, and to deny request for a waiver which 
do not meet those criteria. If the circumstances warrant, a waiver 
request may be submitted to the Secretary for a decision.
    (2) Authority is delegated to the Director, Education Service, in 
cases of State approving agency employees to waive the application of 
paragraph (a)(2) of this section in the case of anyone who meets the 
criteria of paragraph (b)(2) of this section, and to deny requests for a 
waiver which do not meet those criteria. If the circumstances warrant, a 
waiver request may be submitted to the Secretary for a decision.


(Authority: 38 U.S.C. 512(a))

    (3) Authority is reserved to the Secretary to waive the requirement 
of paragraphs (a) (1) and (2) of this section in the case of an officer 
of the Department of Veterans Affairs or a State approving agency and in 
the case of any employee of either who does not meet the criteria of 
paragraph (b) of this section.
    (d) Disapproval of courses. Where it is found that an officer or 
employee of the Department of Veterans Affairs has any interest in, or 
receives any wages, salary, dividends, profits, gratuities, or services 
from any such school, and waiver has not been granted, the State 
approving agency and the school will be notified immediately that the 
courses offered by the school shall be disapproved, the reason for 
disapproval, and the conditions under which the disapproval may be 
lifted.
    (e) Notice to veterans and eligible persons. The veteran or eligible 
person will be notified in writing sent to his or her latest address of 
record when:
    (1) The course or courses are disapproved by the State approving 
agency, or
    (2) The State approving agency fails to disapprove the course or 
courses within 15 days after the date of written notice to the agency, 
and no waiver has been requested, or
    (3) Waiver has been denied.

The veteran or eligible person will be informed that he or she may apply 
for enrollment in an approved course in another school, but that in the 
absence of such transfer, educational assistance allowance payments will 
be discontinued effective the date of discontinuance of the course, or 
the 30th day following the date of such letter, whichever is earlier.
    (f) Definition of ``officer.'' For the purposes of this section a 
person will be considered to be an officer of the State approving agency 
or the Department of Veterans Affairs, when he or she has

[[Page 242]]

authority to exercise supervisory authority.

[31 FR 6774, May 6, 1966, as amended at 43 FR 3707, Jan. 27, 1978; 51 FR 
16315, May 2, 1986; 61 FR 20728, May 8, 1996]



Sec. 21.4006  False or misleading statements.

    (a) Payments may not be based on false statements. Except as 
provided in this section payments may not be authorized based on a claim 
where it is found that the school or any person has willfully submitted 
a false or misleading claim, or that the veteran or eligible person with 
the complicity of the school or other person has submitted such a claim. 
A complete report of the facts will be made to the State approving 
agency, and if in order to the Attorney General of the United States.


(Authority: 38 U.S.C. 3690)

    (1) Where it is determined prior to payment that a certification or 
claim is false or misleading, payment will be authorized for only that 
portion of the claim to which entitlement is established on the basis of 
other evidence of record.
    (2) When the Department of Veterans Affairs discovers that a 
certification or claim is false after it has released payment, the 
Department of Veterans Affairs will establish an overpayment for only 
that portion of the claim to which the claimant was not entitled.


(Authority: 38 U.S.C. 3680)

    (b) Effect of false statements on subsequent payments. A claimant's 
false or misleading statements are not a bar to payments based on 
further training.


(Authority: 38 U.S.C. 3680)

    (c) Forfeiture. The provisions of this section do not apply when 
forfeiture of all rights has been or may be declared under the 
provisions of Sec. 21.4007.


(Authority: 38 U.S.C. 6103)

[31 FR 6774, May 6, 1966, as amended at 38 FR 14932, June 7, 1973; 48 FR 
37976, Aug. 22, 1983]



Sec. 21.4007  Forfeiture.

    The rights of a veteran or eligible person to receive educational 
assistance allowance or special training allowance are subject to 
forfeiture under the provisions of Sec. Sec. 3.900, 3.901 (except 
paragraph (c)), 3.902 (except paragraph (c)), 3.903, 3.904, 3.905 and 
19.2 of this chapter.

(Authority: 38 U.S.C. 6103, 6104 and 6105)

[54 FR 4286, Jan. 30, 1989]



Sec. 21.4008  Prevention of overpayments.

    When approval of a course may be withdrawn, and overpayments may 
exist or be created, the Department of Veterans Affairs may suspend 
further payments to veterans or eligible persons enrolled in the school 
until the question of withdrawing approval is resolved. See Sec. 
21.4210.

(Authority: 38 U.S.C. 3690(b))

[48 FR 37976, Aug. 22, 1983, as amended at 63 FR 35831, July 1, 1998]



Sec. 21.4009  Overpayments; waiver or recovery.

    (a) General. (1) The amount of the overpayment of educational 
assistance allowance or special training allowance paid to a veteran or 
eligible person constitutes a liability of that veteran or eligible 
person.
    (2) The amount of the overpayment of educational assistance 
allowance or special training allowance paid to a veteran or eligible 
person constitutes a liability of the education institution if the 
Department of Veterans Affairs determines that the overpayment was made 
as the result of willful or negligent:
    (i) Failure of the educational institution to report, as required by 
Sec. Sec. 21.4203 and 21.4204, discontinuance or interruption of a 
course by a veteran, reservist or eligible person, or
    (ii) False certification by the educational institution.
    (3) If it appears that the falsity or misrepresentation was 
deliberate, the Department of Veterans Affairs may not pursue 
administrative collection pending a determination whether the matter 
should be referred to the Department of Justice for possible civil or 
criminal action. However, the Department of Veterans Affairs may recover 
the amount of the overpayment from the educational institution by 
administrative collection procedure when

[[Page 243]]

the Department of Veterans Affairs determines the false certification or 
misrepresentation resulted from an administrative error or a 
misstatement of fact and that no criminal or civil action is warranted.
    (4) If the Department of Veterans Affairs recovers any part of the 
overpayment from the educational institution, it may reimburse the 
educational institution, if the Department of Veterans Affairs 
subsequently collects the overpayment from a veteran or eligible person. 
The reimbur