[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1997 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
38
Pensions, Bonuses, and Veterans' Relief
PARTS 0 to 17
Revised as of July 1, 1997
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 38:
Chapter I--Department of Veterans Affairs................. 3
Finding Aids:
Material Approved for Incorporation by Reference.......... 683
Table of CFR Titles and Chapters.......................... 685
Alphabetical List of Agencies Appearing in the CFR........ 701
List of CFR Sections Affected.............................
711
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in this volume use title, part
and section number. Thus, 38 CFR 0.735-1 refers to
title 38, part 0, section 735-1.
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[[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
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To determine whether a Code volume has been amended since its
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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
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Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
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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, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, 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) 523-4534.
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), and Acts Requiring Publication
in the Federal Register (Table II). 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.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
SALES
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 1997.
[[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, 1997.
For this volume, Cheryl E. Sirofchuck 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 parts 0 to 17)
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Part
Chapter i--Department of Veterans Affairs................... 0
[[Page 3]]
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
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Part Page
0 Standards of ethical conduct and related
responsibilities........................ 5
1 General provisions.......................... 6
2 Delegations of authority.................... 126
3 Adjudication................................ 133
4 Schedule for rating disabilities............ 329
5 [Reserved]
6 United States Government life insurance..... 434
7 Soldiers' and Sailors' civil relief......... 440
8 National Service life insurance............. 442
8a Veterans mortgage life insurance............ 459
9 Servicemen's Group Life Insurance and
Veterans' Group Life Insurance.......... 462
10 Adjusted compensation....................... 469
11 Loans by banks on and payment of adjusted
service certificates.................... 476
12 Disposition of veteran's personal funds and
effects................................. 483
13 Veterans Benefits Administration, fiduciary
activities.............................. 494
14 Legal services, General Counsel............. 505
15 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Veterans Affairs..................... 544
16 Protection of human subjects................ 550
17 Medical..................................... 561
Editorial Note: Nomenclature changes to chapter I appear at 54 FR
34978, Aug. 23, 1989, 57 FR 31006, July 13, 1992, and 57 FR 38609, Aug.
26, 1992.
[[Page 5]]
PART 0--STANDARDS OF ETHICAL CONDUCT AND RELATED RESPONSIBILITIES--Table of Contents
Subpart A--General Provisions
Sec.
0.735-1 Agency ethics officials.
0.735-2 Agency designees.
0.735-3 Government- wide standards.
Subpart B--Standards of Ethical Conduct and Related Responsibilities of
Employees
0.735-10 Cross-reference to employee ethical and other conduct
standards and financial disclosure regulations.
0.735-11 Other conduct on the job.
0.735-12 Standards of conduct in special areas.
Authority: 5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and
502(a) of E.O. 12674, 54 CFR 15159, 3 CFR, 1989 Comp., p. 215 as
modified by E.O. 12731, 55 CFR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 31 FR 5828, Apr. 15, 1966, unless otherwise noted.
Editorial Note: Nomenclature changes to part 0 appear at 61 FR 7216,
Feb. 27, 1996.
Subpart A--General Provisions
Sec. 0.735-1 Agency ethics officials.
(a) Designated Agency Ethics Official (DAEO). The Assistant General
Counsel (023) is the designated agency ethics official (DAEO) for the
Department of Veterans Affairs. The Deputy Assistant General Counsel
(023C) is the alternate DAEO, who is designated to act in the DAEO's
absence. The DAEO has primary responsibility for the administration,
coordination, and management of the VA ethics program, pursuant to 5 CFR
2638.201-204.
(b) Deputy ethics officials. (1) The Regional Counsel are deputy
ethics officials. They have been delegated the authority to act for the
DAEO within their jurisdiction, under the DAEO's supervision, pursuant
to 5 CFR 2638.204.
(2) The alternate DAEO, the DAEO's staff, and staff in the Offices
of Regional Counsel, may also act as deputy ethics officials pursuant to
delegations of one or more of the DAEO's duties from the DAEO or the
Regional Counsel.
[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]
Sec. 0.735-2 Agency designees.
(a) The following officials are ``agency designees'' for purposes of
the standards of conduct in 5 CFR part 2635:
Under Secretaries
Assistant Secretaries
Director, National Cemetery System
General Counsel
Inspector General
Chairman, Board of Veterans Appeals
Chairman, Board of Contract Appeals
Heads of Independent Facilities
Designated Agency Ethics Official
Regional Counsel.
(b) Agency designees are authorized, pursuant to 5 CFR 2635.102(b),
to make specified determinations, grant approval, or take other
specified action required or permitted by the standards of conduct with
respect to another employee. An agency designee may seek the advice of
the DAEO or a deputy ethics official in exercising his or her
responsibilities as to any other employee.
[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]
Sec. 0.735-3 Government-wide standards.
For government-wide standards of ethical conduct and related
responsibilities for Federal employees, see 5 CFR Part 735 and Chapter
XVI.
[61 FR 11309, Mar. 20, 1996]
Subpart B--Standards of Ethical Conduct and Related Responsibilities of
Employees
Source: 58 FR 61814, Nov. 23, 1993, unless otherwise noted.
Sec. 0.735-10 Cross-reference to employee ethical and other conduct standards and financial disclosure regulations.
Employees of the Department of Veterans Affairs (VA) should refer to
the executive branch-wide Standards of Ethical Conduct at 5 CFR part
2635, the executive branch-wide Employee Responsibilities and Conduct at
5 CFR part 735, and the executive branch-wide financial disclosure
regulation at 5 CFR part 2634.
[[Page 6]]
Sec. 0.735-11 Other conduct on the job.
Relationship with beneficiaries and claimants. Employees are
expected to be helpful to beneficiaries, patients and claimants, but:
(a) An employee shall not procure intoxicants or drugs for, or
attempt to sell intoxicants or drugs to, patients or members, or give or
attempt to give intoxicants or drugs to them unless officially
prescribed for medical use;
(b) An employee shall not abuse patients, members, or other
beneficiaries, whether or not provoked.
Sec. 0.735-12 Standards of conduct in special areas.
(a) Safety. (1) Employees will observe safety instructions, signs,
and normal safety practices and precautions, including the use of
protective clothing and equipment.
(2) An employee shall report each work-connected injury, accident or
disease he or she suffers.
(b) Furnishing testimony. Employees will furnish information and
testify freely and honestly in cases respecting employment and
disciplinary matters. Refusal to testify, concealment of material facts,
or willfully inaccurate testimony in connection with an investigation or
hearing may be ground for disciplinary action. An employee, however,
will not be required to give testimony against himself or herself in any
matter in which there is indication that he or she may be or is involved
in a violation of law wherein there is a possibility of self-
incrimination.
PART 1--GENERAL PROVISIONS--Table of Contents
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec.
1.9 Description, use, and display of VA seal and flag.
The United States Flag for Burial Purposes
1.10 Eligibility for and disposition of the United States flag for
burial purposes.
Quarters for Department of Veterans Affairs Employees Overseas
1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Program Evaluation
1.15 Standards for program evaluation.
1.17 Evaluation of studies relating to health effects of dioxin and
radiation exposure.
Security and Law Enforcement at Department of Veterans Affairs
Facilities
1.218 Security and law enforcement at VA facilities.
Parking Fees at VA Medical Facilities
1.300 Purpose.
1.301 Definitions.
1.302 Applicability and scope.
1.303 Policy.
Release of Information from Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
1.460 Definitions.
1.461 Applicability.
1.462 Confidentiality restrictions.
1.463 Criminal penalty for violations.
1.464 Minor patients.
1.465 Incompetent and deceased patients.
1.466 Security for records.
1.467 Restrictions on the use of identification cards and public signs.
1.468 Relationship to Federal statutes protecting research subjects
against compulsory disclosure of their identity.
1.469 Patient access and restrictions on use.
1.470--1.474 [Reserved]
Disclosures With Patient's Consent
1.475 Form of written consent.
1.476 Prohibition on redisclosure.
1.477 Disclosures permitted with written consent.
1.478 Disclosures to prevent multiple enrollments in detoxification and
maintenance treatment programs; not applicable to records
relating to sickle cell anemia or infection with the human
immunodeficiency virus.
1.479 Disclosures to elements of the criminal justice system which have
referred patients.
1.480--1.484 [Reserved]
Disclosures Without Patient Consent
1.485 Medical emergencies.
1.486 Disclosure of information related to infection with the human
immunodeficiency virus to public health authorities.
1.487 Disclosure of information related to infection with the human
immunodeficiency virus to the spouse or sexual partner of the
patient.
1.488 Research activities.
1.489 Audit and evaluation activities.
[[Page 7]]
Court Orders Authorizing Disclosures and Use
1.490 Legal effect of order.
1.491 Confidential communications.
1.492 Order not applicable to records disclosed without consent to
researchers, auditors and evaluators.
1.493 Procedures and criteria for orders authorizing disclosures for
noncriminal purposes.
1.494 Procedures and criteria for orders authorizing disclosure and use
of records to criminally investigate or prosecute patients.
1.495 Procedures and criteria for orders authorizing disclosure and use
of records to investigate or prosecute VA or employees of VA.
1.496 Orders authorizing the use of undercover agents and informants to
criminally investigate employees or agents of VA.
1.497--1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
1.500 General.
1.501 Release of information by the Secretary.
1.502 Disclosure of the amount of monetary benefits.
1.503 Disclosure of information to a veteran or his or her duly
authorized representative as to matters concerning the veteran
alone.
1.504 Disclosure of information to a widow, child, or other claimant.
1.505 Genealogy.
1.506 Disclosure of records to Federal Government departments, State
unemployment compensation agencies, and the Office of
Servicemen's Group Life Insurance.
1.507 Disclosures to members of Congress.
1.508 Disclosure in cases where claimants are charged with or convicted
of criminal offenses.
1.509 Disclosure to courts in proceedings in the nature of an inquest.
1.510 Disclosure to insurance companies cooperating with the Department
of Justice in the defense of insurance suits against the
United States.
1.511 Disclosure of claimant records in connection with judicial
proceedings generally.
1.512 Disclosure of loan guaranty information.
1.513 Disclosure of information contained in Armed Forces service and
related medical records in Department of Veterans Affairs
custody.
1.514 Disclosure to private physicians and hospitals other than
Department of Veterans Affairs.
1.514a Disclosure to private psychologists.
1.515 To commanding officers of State soldiers' homes.
1.516 Disclosure of information to undertaker concerning burial of a
deceased veteran.
1.517 Disclosure of vocational rehabilitation and education information
to educational institutions cooperating with the Department of
Veterans Affairs.
1.518 Addresses of claimants.
1.519 Lists of names and addresses.
1.520 Confidentiality of social data.
1.521 Special restrictions concerning social security records.
1.522 Determination of the question as to whether disclosure will be
prejudicial to the mental or physical health of claimant.
1.523 [Reserved]
1.524 Persons authorized to represent claimants.
1.525 Inspection of records by or disclosure of information to
recognized representatives of organizations and recognized
attorneys.
1.526 Copies of records and papers.
1.527 Administrative review.
Release of Information From Department of Veterans Affairs Records Other
Than Claimant Records
1.550 General.
1.551 [Reserved]
1.552 Public access to information that affects the public when not
published in the Federal Register as constructive notice.
1.553 Public access to other reasonably described records.
1.553a Time limits for Department of Veterans Affairs response to
requests for records.
1.554 Exemptions from public access to agency records.
1.554a Predisclosure notification procedures for confidential
commercial information.
1.555 Fees.
1.556 Requests for other reasonably described records.
1.557 Administrative review.
1.558--1.559 [Reserved]
Safeguarding Personal Information in Department of Veterans Affairs
Records
1.575 Social security numbers in veterans' benefits matters.
1.576 General policies, conditions of disclosure, accounting of certain
disclosures, and definitions.
1.577 Access to records.
1.578 [Reserved]
1.579 Amendment of records.
1.580 Administrative review.
1.581 [Reserved]
1.582 Exemptions.
1.583--1.584 [Reserved]
[[Page 8]]
National Cemeteries
1.600 [Reserved]
1.601 Advisory Committee on Cemeteries and Memorials.
1.602 Names for national cemetery activities.
1.603 Gifts and donations.
1.604--1.619 [Reserved]
1.620 Eligibility for burial.
1.621 Disinterments from national cemeteries.
1.622--1.629 [Reserved]
1.630 Headstones and markers.
1.631 [Reserved]
1.632 Headstone and marker application required.
1.633 Group memorial monuments.
Inventions by Employees of Department of Veterans Affairs
1.650 Purpose.
1.651 Definitions.
1.652 Criteria for determining rights to employee inventions.
1.653 Delegation of authority.
1.654 Patenting of inventions.
1.655 Government license in invention of employee.
1.656 Information to be submitted by inventor.
1.657 Determination of rights.
1.658 Right of appeal.
1.659 Relationship to incentive awards program.
1.660 Expeditious handling.
1.661 Information to be kept confidential.
1.662 Provisions of regulations made a condition of employment.
1.663 Licensing of Government-owned inventions.
1.664--1.666 [Reserved]
Administrative Control of Funds
1.670 Purpose.
1.671 Definitions.
1.672 Responsibilities.
1.673 Responsibility for violations of the administrative subdivision
of funds.
Use of Official Mail in the Location and Recovery of Missing Children
1.700 Purpose.
1.701 Contact person for missing children official mail program.
1.702 Policy.
1.703 Percentage estimate.
1.704 [Reserved]
1.705 Restrictions on use of missing children information.
Homeless Claimants
1.710 Homeless claimants: Delivery of benefit payments and
correspondence.
Appeals from Decisions of Contracting Officers Under the Contract
Disputes Act of 1978
1.780 Board of Contract Appeals--jurisdiction.
1.781 Organization and address of the Board.
1.782 Policy and procedure.
1.783 Rules of the Board.
Part-Time Career Employment Program
1.891 Purpose of program.
1.892 Review of positions.
1.893 Establishing and converting part-time positions.
1.894 Annual goals and timetables.
1.895 Review and evaluation.
1.896 Publicizing vacancies.
1.897 Exceptions.
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
1.900 Prescription of standards.
1.901 Omissions not a defense.
1.902 Fraud, antitrust and tax claims excluded.
1.903 Settlement, waiver, or compromise under other statutory or
regulatory authority.
1.904 Conversion claims.
1.905 Subdivision of claims not authorized.
1.906 Required administrative proceedings.
1.907 Definitions.
Standards for Collection of Claims
1.910 Aggressive collection action.
1.911 Collection of debts owed by reason of participation in a benefits
program.
1.912 Collection by offset.
1.912a Collection by offset--from VA benefit payments.
1.913 Personal interview with debtor.
1.914 Contact with debtor's employing agency.
1.915 Suspension or revocation of eligibility.
1.916 Liquidation of collateral.
1.917 Collection in installments.
1.918 Exploration of compromise.
1.919 Interest.
1.920 Documentation of collection action.
1.921 Additional collection action.
1.922 Disclosure of debt information to consumer reporting agencies
(CRA).
1.923 Contracting for collection services.
1.924 Use and disclosure of mailing addresses.
1.925 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund, Federal Employees Retirement
System (FERS), final salary check, and lump sum leave
payments.
1.926 Referral of VA debts.
1.927 Analysis of costs and prevention of debts.
[[Page 9]]
1.928 Exemptions.
1.929 Reduction of debt through performance of work-study services.
Standards for Compromise of Claims
1.930 Scope and application.
1.931 Inability to pay.
1.932 Litigative possibilities.
1.933 Cost of collecting claim.
1.934 Enforcement policy.
1.935 Joint and several liability.
1.936 Settlement for a combination of reasons.
1.937 Further review of compromise offers.
1.938 Restrictions.
Standards for Suspending or Terminating Collection Action
1.940 Scope and application.
1.941 Suspension of collection activity.
1.942 Termination of collection activity.
1.943 Transfer of claims.
Referrals to GAO, Department of Justice, or IRS
1.950 Prompt referral.
1.951 Claims Collection Litigation Report.
1.952 Preservation of evidence.
1.953 Minimum amount of referrals to the Department of Justice.
1.954 Preliminary referrals to GAO.
Regional Office Committees on Waivers and Compromises
1.955 Regional office Committees on Waivers and Compromises.
1.956 Jurisdiction.
1.957 Committee authority.
1.958 Finality of decisions.
1.959 Records and certificates.
1.960 Legal and technical assistance.
1.961 Releases.
1.962 Waiver of overpayments.
1.963 Waiver; other than loan guaranty.
1.963a Waiver; erroneous payments of pay and allowances.
1.964 Waiver; loan guaranty.
1.965 Application of standard.
1.966 Scope of waiver decisions.
1.967 Refunds.
1.968 [Reserved]
1.969 Revision of waiver decisions.
1.970 Standards for compromise.
Salary Offset Provisions
1.980 Scope.
1.981 Definitions.
1.982 Salary offsets of debts involving benefits under the laws
administered by VA.
1.983 Notice requirements before salary offsets of debts not involving
benefits under the laws administered by VA.
1.984 Request for a hearing.
1.985 Form, notice of, and conduct of hearing.
1.986 Result if employee fails to meet deadlines.
1.987 Review by hearing official or administrative law judge.
1.988 Written decision following a hearing requested under Sec. 1.984.
1.989 Review of VA records related to the debt.
1.990 Written agreement to repay debt as alternative to salary offset.
1.991 Procedures for salary offset: when deductions may begin.
1.992 Procedures for salary offset.
1.993 Non-waiver of rights.
1.994 Refunds.
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Editorial Note: Nomenclature changes to part 1 appear at 61 FR 7216,
Feb. 27, 1996.
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec. 1.9 Description, use, and display of VA seal and flag.
(a) General. This section describes the official seal and
distinguishing flag of the of the Department of Veterans Affairs, and
prescribes the rules for their custody and use.
(b) Definitions.
(1) VA means all organizational units of the Department of Veterans
Affairs.
(2) Embossed seal means an image of the official seal made on paper
or other medium by using an embosser with a negative and positive die to
create a raised impression.
(3) Official seal means the original(s) of the VA seal showing the
exact form, content, and colors thereof.
(4) Replica means a copy of the official seal displaying the
identical form, content, and colors thereof.
(5) Reproduction means a copy of the official seal displaying the
identical form and content, reproduced in only one color.
(6) Secretary means the Secretary of Veterans Affairs.
(7) Deputy Secretary means the Deputy Secretary of Veterans Affairs.
(c) Custody of official seal and distinguishing flags. The Secretary
or designee shall:
(1) Have custody of:
(i) The official seal and prototypes thereof, and masters, molds,
dies, and other means of producing replicas, reproductions, and
embossing seals and
[[Page 10]]
(ii) Production, inventory, and loan records relating to items
specified in paragraph (c)(1)(i) of this section, and
(2) Have custody of distinguishing flags, and be responsible for
production, inventory, and loan records thereof.
(d) Official Seal.
(1) Description of official seal. The Department of Veterans Affairs
prescribes as its official seal, of which judicial notice shall be taken
pursuant to 38 U.S.C. 302, the imprint illustrated below:
[GRAPHIC] [TIFF OMITTED] TC04NO91.000
(i) The official seal includes an American eagle clutching a cord in
its talons. The cord binds a 13-star U.S. flag and a 50-star U.S. flag.
In the field over the eagle is a pentagon formation of stars, with one
point down. The words Department of Veterans Affairs and United States
of America surround the eagle, stars, and flags. A rope motif makes up
the outermost ring of the seal.
(ii) The eagle represents the eternal vigilance of all our nation's
veterans. The stars represent the five branches of military service. The
crossed flags represent our nation's history. The gold cord that binds
the two flags, which is shown clutched in the eagle's talons is symbolic
of those who have fallen in the defense of liberty. Each of the various
individual items placed together in the seal is a salute to the past,
present, and future.
(iii) The colors used in the configuration are gold, brown, blue,
white, silver, yellow, black, and red.
(iv) The colors are derived from the American flag and from nature.
By invoking this symbolism, the color scheme represents the Nation's
commitment to its veterans.
(2) Use of the official seal, replicas, reproductions, and embossing
seals.
(i) The Secretary or designees are authorized to affix replicas,
reproductions, and embossed seals to appropriate documents,
certifications, and other material for all purposes as authorized by
this section.
(ii) Replicas may be used only for:
(A) Display in or adjacent to VA facilities, in Department
auditoriums, presentation rooms, hearing rooms, lobbies, and public
document rooms.
(B) Offices of senior officials.
(C) Official VA distinguishing flags, adopted and utilized pursuant
to paragraph (e)(2) of this section.
(D) Official awards, certificates, medals, and plaques.
(E) Motion picture film, video tape, and other audiovisual media
prepared by or for VA and attributed thereto.
(F) Official prestige publications which represent the achievements
or mission of VA.
(G) For other similar official purposes.
(H) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iii) Reproductions may be used only on:
(A) VA letterhead stationery.
(B) Official VA identification cards and security credentials.
(C) Business cards for VA employees.
(D) Official VA signs.
(E) Official publications or graphics issued by and attributed to
VA, or joint statements of VA with one or more Federal agencies, State
or local governments, or foreign governments.
(F) Official awards, certificates, and medals.
(G) Motion picture film, video tape, and other audiovisual media
prepared by and for VA and attributed thereto.
(H) For other similar official purposes.
[[Page 11]]
(I) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iv) Use of the official seal and embossed seals:
(A) Embossed seals may be used only on VA legal documents, including
interagency or intergovernmental agreements with States, foreign patent
applications, and similar official documents.
(B) The official seal may be used only for those purposes related to
the conduct of Departmental affairs in furtherance of the VA mission.
(e) Distinguishing flag.
(1) Description of distinguishing flag.
(i) The base or field of the flag shall be blue and a replica of the
official seal shall appear on both sides thereof.
(ii) A Class 1 flag shall be of nylon banner, measure 4'4'' on the
hoist by 5'6'' on the fly, exclusive of heading and hems, and be fringed
on three edges with nylon fringe, 2\1/2\'' wide.
(iii) A Class 2 flag shall be of nylon banner, measure 3' on the
hoist by 5' on the fly, exclusive of heading and hems, and be fringed on
three edges with nylon fringe, 2\1/2\'' wide.
(iv) Each flag shall be manufactured in accordance with Department
of Veterans Affairs Specification X-497G. The replica of the official
seal shall be screen printed or embroidered on both sides.
(2) Use of distinguishing flag.
(i) VA distinguishing flags may be used only:
(A) In the offices of the Secretary, Deputy Secretary, Assistant
Secretaries, Deputy Assistant Secretaries and heads of field locations
designated below:
(1) Regional Offices.
(2) Medical Centers and Outpatient Clinics.
(3) Domiciliaries.
(4) Marketing Centers and Supply Depots.
(5) Data Processing Centers.
(6) National Cemetery Offices.
(7) Other locations as designated by the Deputy Assistant Secretary
for Administration.
(B) At official VA ceremonies.
(C) In Department auditoriums, official presentation rooms, hearing
rooms, lobbies, public document rooms, and in non-VA facilities in
connection with events or displays sponsored by VA, and public
appearances of VA officials.
(D) On or in front of VA installation buildings.
(E) Other such official VA purposes or purposes as will tend to
advance the aims, purposes and mission of the Department of Veterans
Affairs as determined by the Deputy Assistant Secretary for
Administration.
(f) Unauthorized uses of the seal and flag.
(1) The official seal, replicas, reproductions, embossed seals, and
the distinguished flag shall not be used, except as authorized by the
Secretary or Deputy Secretary, in connection with:
(i) Contractor-operated facilities.
(ii) Souvenir or novelty items.
(iii) Toys or commercial gifts or premiums.
(iv) Letterhead design, except on official Departmental stationery.
(v) Matchbook covers, calendars and similar items.
(vi) Civilian clothing or equipment.
(vii) Any article which may disparage the seal or flag or reflect
unfavorably upon VA.
(viii) Any manner which implies Departmental endorsement of
commercial products or services, or of the commercial user's policies or
activities.
(2) Penalties for unauthorized use. Any person who uses the
distinguishing flag, or the official seal, replicas, reproductions or
embossed seals in a manner inconsistent with this section shall be
subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017,
providing penalties for their wrongful use, as applicable.
(Authority: 38 U.S.C. 302, 38 U.S.C. 501)
[55 FR 49518, Nov. 29, 1990]
The United States Flag for Burial Purposes
Sec. 1.10 Eligibility for and disposition of the United States flag for burial purposes.
(a) Eligibility for burial flags--(1) Persons eligible. (i) A
veteran of any war, of Mexican border service, or of service
[[Page 12]]
after January 31, 1955, discharged or released from active duty under
conditions other than dishonorable. (For the purpose of this section,
the term Mexican border service means active military, naval, or air
service during the period beginning on January 1, 1911, and ending on
April 5, 1917, in Mexico, on the borders thereof, or in the waters
adjacent thereto.)
(ii) A peacetime veteran discharged or released, before June 27,
1950, from the active military, naval, or air service, under conditions
other than dishonorable, after serving at least one enlistment, or for a
disability incurred or aggravated in line of duty.
(iii) Any person who has died while in military or naval service of
the United States after May 27, 1941. This subdivision authorizes and
requires the furnishing of a flag only where the military or naval
service does not furnish a flag immediately. The only cases wherein a
flag is not supplied immediately are those of persons whose remains are
interred outside the continental limits of the United States, or whose
remains are not recovered or are recovered and not identified.
(iv) Any person who served in the organized military forces of the
Commonwealth of the Philippines while such forces were in the service of
the Armed Forces of the United States pursuant to the military order of
the President of the United States, dated July 26, 1941, including among
such military forces organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority in the Army
of the United States, and who dies after separation from such service
under conditions other than dishonorable, on or after April 25, 1951.
(Authority: 38 U.S.C. 107(a))
(b) Disposition of burial flags. (1) When a flag is actually used to
drape the casket of a deceased veteran, it must be delivered to the next
of kin following interment. Where the flag is not claimed by the next of
kin it may be given upon request to a close friend or associate of the
deceased veteran. Such action will constitute final and conclusive
determination of rights under this section. (38 U.S.C. 2301)
(2) The phrase next of kin for the purpose of disposing of the flag
used for burial purposes is defined as follows, with preference to
entitlement in the order listed:
(i) Widow or widower.
(ii) Children, according to age (minor child may be issued a flag on
application signed by guardian).
(iii) Parents, including adoptive, stepparents, and foster parents.
(iv) Brothers or sisters, including brothers or sisters of the
halfblood.
(v) Uncles or aunts.
(vi) Nephews or nieces.
(vii) Others--cousins, grandparents, etc. (but not in-laws).
(3) The phrase close friend or associate for the purpose of
disposing of the burial flag means any person who because of his or her
relationship with the deceased veteran arranged for the burial or
assisted in the burial arrangements. In the absence of a person falling
in either of these categories, any person who establishes by evidence
that he or she was a close friend or associate of the veteran may be
furnished the burial flag. Where more than one request for the burial
flag is received and each is accompanied by satisfactory evidence of
relationship or association, the head of the field facility having
jurisdiction of the burial flag quota will determine which applicant is
the one most equitably entitled to the burial flag.
(Authority: 72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)
[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24
FR 10106, Dec. 15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27,
1977]
Quarters for Department of Veterans Affairs Employees Overseas
Sec. 1.11 Quarters for Department of Veterans Affairs employees in Government-owned or -rented buildings overseas.
Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee
of the Department of Veterans Affairs permanently stationed in a foreign
country may be furnished, without cost to him or her, living quarters,
including heat,
[[Page 13]]
fuel, and light, in a Government-owned or -rented building. When in the
interest of the service and when administratively feasible, an agreement
may be entered into by the Chief Benefits Director or designee with
another Federal agency, which is authorized to furnish quarters, to
provide such quarters for Department of Veterans Affairs employees under
the provisions of 31 U.S.C. 686. Quarters provided will be in lieu of
any living quarters allowance to which the employee may otherwise be
entitled.
(Authority: 72 Stat. 1114; 38 U.S.C. 501)
[33 FR 362, Jan. 10, 1968]
Program Evaluation
Sec. 1.15 Standards for program evaluation.
(a) The Department of Veterans Affairs will evaluate all programs
authorized under title 38 U.S.C. These evaluations will be conducted so
as to determine each program's effectiveness in achieving its stated
goals and in achieving such goals in relation to their cost. In
addition, these evaluations will determine each program's impact on
related programs and its structure and mechanism for delivery of
services. All programs will be evaluated on a continuing basis and all
evaluations will be conducted by Department of Veterans Affairs staff
assigned to an organizational entity other than those responsible for
program administration. These evaluations will be conducted with
sufficient frequency to allow for an assessment of the continued
effectiveness of the programs.
(b) The program evaluation will be designed to determine if the
existing program supports the intent of the law. A program evaluation
must identify goals and objectives that support this intent, contain a
method to measure fulfillment of the objectives, ascertain the degree to
which goals and objectives are met, and report the findings and
conclusions to Congress, as well as make them available to the public.
(c) The goals must be clear, specific, and measurable. To be clear
they must be readily understood, free from doubt or confusion, and
specific goals must be explicitly set forth. They must be measurable by
objective means. These means can include use of existing record systems,
observations, and information from other sources.
(d) All program evaluations require a detailed evaluation plan. The
evaluation plan must clearly state the objectives of the program
evaluation, the methodology to be used, resources to be committed, and a
timetable of major phases.
(e) Each program evaluation must be objective. It must report the
accomplishments as well as the shortcomings of the program in an
unbiased way. The program evaluation must have findings that give
decision-makers information which is of a level of detail and importance
to enable decisions to be made affecting either direction or operation.
The information in the program evaluation must be timely, and must
contain information of sufficient currency that decisions based on the
data in the evaluation can be made with a high degree of confidence in
the data.
(f) Each program evaluation requires a systematic research design to
collect the data necessary to measure the objectives. This research
design should conform to the following:
(1) Rationale. The research design for each evaluation should
contain a specific rationale and should be structured to determine
possible cause and effect relationships.
(2) Relevancy. It must deal with issues currently existing within
the program, within the Department, and within the environment in which
the program operates.
(3) Validity. The degree of statistical validity should be assessed
within the research design. Alternatives include an assessment of cost
of data collection vs. results necessary to support decisions.
(4) Reliability. Use of the same research design by others should
yield the same findings.
(g) The final program evaluation report will be reviewed for
comments and concurrence by relevant organizations within the Department
of Veterans Affairs, but in no case should this review unreasonably
delay the results of the evaluation. Where disagreement exists, the
dissenting organization's position should be summarized for a decision
by the Secretary.
[[Page 14]]
(h) The final program evaluation report will be forwarded, with
approved recommendations, to the concerned organization. An action plan
to accomplish the approved recommendations will be forwarded for
evaluation by the evaluating entity.
(i) Program evaluation results should be integrated to the maximum
extent possible into Department of Veterans Affairs plans and budget
submissions to ensure continuity with other Department of Veterans
Affairs management processes.
(Authority: 38 U.S.C. 527)
[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.17 Evaluation of studies relating to health effects of dioxin and radiation exposure.
(a) From time to time, the Secretary shall publish evaluations of
scientific or medical studies relating to the adverse health effects of
exposure to a herbicide containing 2, 3, 7, 8 tetrachlorodibenzo-p-
dioxin (dioxin) and/or exposure to ionizing radiation in the ``Notices''
section of the Federal Register.
(b) Factors to be considered in evaluating scientific studies
include:
(1) Whether the study's findings are statistically significant and
replicable.
(2) Whether the study and its findings have withstood peer review.
(3) Whether the study methodology has been sufficiently described to
permit replication of the study.
(4) Whether the study's findings are applicable to the veteran
population of interest.
(5) The views of the appropriate panel of the Scientific Council of
the Veterans' Advisory Committee on Environmental Hazards.
(c) When the Secretary determines, based on the evaluation of
scientific or medical studies and after receiving the advice of the
Veterans' Advisory Committee on Environmental Hazards and applying the
reasonable doubt doctrine as set forth in paragraph (d)(1) of this
section, that a significant statistical association exists between any
disease and exposure to a herbicide containing dioxin or exposure to
ionizing radiation, Sec. 3.311a or Sec. 3.311b of this title, as
appropriate, shall be amended to provide guidelines for the
establishment of service connection.
(d)(1) For purposes of paragraph (c) of this section a significant
statistical association shall be deemed to exist when the relative
weights of valid positive and negative studies permit the conclusion
that it is at least as likely as not that the purported relationship
between a particular type of exposure and a specific adverse health
effect exists.
(2) For purposes of this paragraph a valid study is one which:
(i) Has adequately described the study design and methods of data
collection, verification and analysis;
(ii) Is reasonably free of biases, such as selection, observation
and participation biases; however, if biases exist, the investigator has
acknowledged them and so stated the study's conclusions that the biases
do not intrude upon those conclusions; and
(iii) Has satisfactorily accounted for known confounding factors.
(3) For purposes of this paragraph a valid positive study is one
which satisfies the criteria in paragraph (d)(2) of this section and
whose findings are statistically significant at a probability level of
.05 or less with proper accounting for multiple comparisons and subgroup
analyses.
(4) For purposes of this paragraph a valid negative study is one
which satisfies the criteria in paragraph (d)(2) of this section and has
sufficient statistical power to detect an association between a
particular type of exposure and a specific adverse health effect if such
an association were to exist.
(e) For purposes of assessing the relative weights of valid positive
and negative studies, other studies affecting epidemiological
assessments including case series, correlational studies and studies
with insufficient statistical power as well as key mechanistic and
animal studies which are found to have particular relevance to an effect
on human organ systems may also be considered.
(f) Notwithstanding the provisions of paragraph (d) of this section,
a significant statistical association may be deemed to exist between a
particular exposure and a specific disease if, in the Secretary's
judgment, scientific
[[Page 15]]
and medical evidence on the whole supports such a decision.
(Authority: 38 U.S.C. 501; Pub. L. 98-542)
[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989]
Security and Law Enforcement at Department of Veterans Affairs
Facilities
Sec. 1.218 Security and law enforcement at VA facilities.
(a) Authority and rules of conduct. Pursuant to 38 U.S.C. 901, the
following rules and regulations apply at all property under the charge
and control of VA (and not under the charge and control of the General
Services Administration) and to all persons entering in or on such
property. The head of the facility is charged with the responsibility
for the enforcement of these rules and regulations and shall cause these
rules and regulations to be posted in a conspicuous place on the
property.
(1) Closing property to public. The head of the facility, or
designee, shall establish visiting hours for the convenience of the
public and shall establish specific hours for the transaction of
business with the public. The property shall be closed to the public
during other than the hours so established. In emergency situations, the
property shall be closed to the public when reasonably necessary to
ensure the orderly conduct of Government business. The decision to close
a property during an emergency shall be made by the head of the facility
or designee. The head of the facility or designee shall have authority
to designate areas within a facility as closed to the public.
(2) Recording presence. Admission to property during periods when
such property is closed to the public will be limited to persons
authorized by the head of the facility or designee. Such persons may be
required to sign a register and/or display identification documents when
requested to do so by VA police, or other authorized individual. No
person, without authorization, shall enter upon or remain on such
property while the property is closed. Failure to leave such premises by
unauthorized persons shall constitute an offense under this paragraph.
(3) Preservation of property. The improper disposal of rubbish on
property; the spitting on the property; the creation of any hazard on
property to persons or things; the throwing of articles of any kind from
a building; the climbing upon the roof or any part of the building,
without permission; or the willful destruction, damage, or removal of
Government property or any part thereof, without authorization, is
prohibited. The destruction, mutilation, defacement, injury, or removal
of any monument, gravestone, or other structure within the limits of any
national cemetery is prohibited.
(4) Conformity with signs and emergency conditions. The head of the
facility, or designee, shall have authority to post signs of a
prohibitory and directory nature. Persons, in and on property, shall
comply with such signs of a prohibitory or directory nature, and during
emergencies, with the direction of police authorities and other
authorized officials. Tampering with, destruction, marring, or removal
of such posted signs is prohibited.
(5) Disturbances. Conduct on property which creates loud or unusual
noise; which unreasonably obstructs the usual use of entrances, foyers,
lobbies, corridors, offices, elevators, stairways, or parking lots;
which otherwise impedes or disrupts the performance of official duties
by Government employees; which prevents one from obtaining medical or
other services provided on the property in a timely manner; or the use
of loud, abusive, or otherwise improper language; or unwarranted
loitering, sleeping, or assembly is prohibited. In addition to measures
designed to secure voluntary terminations of violations of this
paragraph the head of the facility or designee may cause the issuance of
orders for persons who are creating a disturbance to depart the
property. Failure to leave the premises when so ordered constitutes a
further disturbance within the meaning of this rule, and the offender is
subject to arrest and removal from the premises.
(6) Gambling. Participating in games for money or for tangible or
intangible things, or the operating of gambling devices, the conduct of
a lottery or pool, or the selling or purchasing of
[[Page 16]]
numbers tickets, in or on property is prohibited.
(7) Alcoholic beverages and narcotics. Operating a motor vehicle on
property by a person under the influence of alcoholic beverages,
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines
is prohibited. Entering property under the influence of any narcotic
drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic
beverage (unless prescribed by a physician) is prohibited. The use on
property of any narcotic drug, hallucinogen, marijuana, barbiturate, or
amphetamine (unless prescribed by a physician) is prohibited. The
introduction or possession of alcoholic beverages or any narcotic drug,
hallucinogen, marijuana, barbiturate, and amphetamine on property is
prohibited, except for liquor or drugs prescribed for use by medical
authority for medical purposes. Provided such possession is consistent
with the laws of the State in which the facility is located, liquor may
be used and maintained in quarters assigned to employees as their normal
abode, and away from the abode with the written consent of the head of
the facility which specifies a special occasion for use and limits the
area and period for the authorized use.
(8) Soliciting, vending, and debt collection. Soliciting alms and
contributions, commercial soliciting and vending of all kinds,
displaying or distributing commercial advertising, or collecting private
debts in or on property is prohibited. This rule does not apply to (i)
national or local drives for funds for welfare, health, or other
purposes as authorized under Executive Order 12353, Charitable Fund
Raising (March 23, 1982), as amended by Executive Order 12404 (February
10, 1983), and regulations issued by the Office of Personnel Management
implementing these Executive Orders; (ii) concessions or personal
notices posted by employees on authorized bulletin boards; and (iii)
solicitation of labor organization membership or dues under 5 U.S.C.
chapter 71.
(9) Distribution of handbills. The distributing of materials such as
pamphlets, handbills, and/or flyers, and the displaying of placards or
posting of materials on bulletin boards or elsewhere on property is
prohibited, except as authorized by the head of the facility or designee
or when such distributions or displays are conducted as part of
authorized Government activities.
(10) Photographs for news, advertising, or commercial purposes.
Photographs for advertising or commercial purposes may be taken only
with the written consent of the head of the facility or designee.
Photographs for news purposes may be taken at entrances, lobbies,
foyers, or in other places designated by the head of the facility or
designee.
(11) Dogs and other animals. Dogs and other animals, except seeing-
eye dogs, shall not be brought upon property except as authorized by the
head of the facility or designee.
(12) Vehicular and pedestrian traffic. Drivers of all vehicles in or
on property shall drive in a careful and safe manner at all times and
shall comply with the signals and directions of police and all posted
traffic signs. The blocking of entrances, driveways, walks, loading
platforms, or fire hydrants in or on property is prohibited; parking in
unauthorized locations or in locations reserved for other persons or
contrary to the direction of posted signs is prohibited. Creating
excessive noise on hospital or cemetery premises by muffler cut out, the
excessive use of a horn, or other means is prohibited. Operation of a
vehicle in a reckless or unsafe manner, drag racing, bumping, overriding
curbs, or leaving the roadway is prohibited.
(13) Weapons and explosives. No person while on property shall carry
firearms, other dangerous or deadly weapons, or explosives, either
openly or concealed, except for official purposes.
(14) Demonstrations. (i) All visitors are expected to observe proper
standards of decorum and decency while on VA property. Toward this end,
any service, ceremony, or demonstration, except as authorized by the
head of the facility or designee, is prohibited. Jogging, bicycling,
sledding and other forms of physical recreation on cemetery grounds is
prohibited.
(ii) For the purpose of the prohibition expressed in this paragraph,
unauthorized demonstrations or services shall
[[Page 17]]
be defined as, but not limited to, picketing, or similar conduct on VA
property; any oration or similar conduct to assembled groups of people,
unless the oration is part of an authorized service; the display of any
placards, banners, or foreign flags on VA property unless approved by
the head of the facility or designee; disorderly conduct such as
fighting, threatening, violent, or tumultuous behavior, unreasonable
noise or coarse utterance, gesture or display or the use of abusive
language to any person present; and partisan activities, i.e., those
involving commentary or actions in support of, or in opposition to, or
attempting to influence, any current policy of the Government of the
United States, or any private group, association, or enterprise.
(15) Key security. The head of the facility of designee, will
determine which employees, by virtue of their duties, shall have access
to keys or barrier-card keys which operate locks to rooms or areas on
the property. The unauthorized possession, manufacture, and/or use of
such keys or barrier cards is prohibited. The surreptitious opening or
attempted opening of locks or card-operated barrier mechanisms is
prohibited.
(16) Sexual misconduct. Any act of sexual gratification on VA
property involving two or more persons, who do not reside in quarters on
the property, is prohibited. Acts of prostitution or solicitation for
acts of prostitution on VA property is prohibited. For the purposes of
this paragraph, an act of prostitution is defined as the performance or
the offer or agreement to perform any sexual act for money or payment.
(b) Schedule of offenses and penalties. Conduct in violation of the
rules and regulations set forth in paragraph (a) of this section
subjects an offender to arrest and removal from the premises. Whomever
shall be found guilty of violating these rules and regulations while on
any property under the charge and control of VA is subject to a fine as
stated in the schedule set forth herein or, if appropriate, the payment
of fixed sum in lieu of appearance (forfeiture of collateral) as may be
provided for in rules of the United States District Court. Violations
included in the schedule of offenses and penalties may also subject an
offender to a term of imprisonment of not more than six months, as may
be determined appropriate by a magistrate or judge of the United States
District Court:
(1) Improper disposal of rubbish on property, $200.
(2) Spitting on property, $25.
(3) Throwing of articles from a building or the unauthorized
climbing upon any part of a building, $50.
(4) Willful destruction, damage, or removal of Government property
without authorization, $500.
(5) Defacement, destruction, mutilation or injury to, or removal, or
disturbance of, gravemarker or headstone, $500.
(6) Failure to comply with signs of a directive and restrictive
nature posted for safety purposes, $50.
(7) Tampering with, removal, marring, or destruction of posted
signs, $150.
(8) Entry into areas posted as closed to the public or others
(trespass), $50.
(9) Unauthorized demonstration or service in a national cemetery or
on other VA property, $250.
(10) Creating a disturbance during a burial ceremony, $250.
(11) Disorderly conduct which creates loud, boisterous, and unusual
noise, or which obstructs the normal use of entrances, exits, foyers,
offices, corridors, elevators, and stairways or which tends to impede or
prevent the normal operation of a service or operation of the facility,
$250.
(12) Failure to depart premises by unauthorized persons, $50.
(13) Unauthorized loitering, sleeping or assembly on property, $50.
(14) Gambling-participating in games of chance for monetary gain or
personal property; the operation of gambling devices, a pool or lottery;
or the taking or giving of bets, $200.
(15) Operation of a vehicle under the influence of alcoholic
beverages or nonprescribed narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines, $500.
(16) Entering premises under the influence of alcoholic beverages or
narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines,
$200.
(17) Unauthorized use on property of alcoholic beverages or narcotic
drugs,
[[Page 18]]
hallucinogens, marijuana, barbiturates, or amphetamines, $300.
(18) Unauthorized introduction on VA controlled property of
alcoholic beverages or narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines or the unauthorized giving of same to a
patient or beneficiary, $500.
(19) Unauthorized solicitation of alms and contributions on
premises, $50.
(20) Commercial soliciting or vending, or the collection of private
debts on property, $50.
(21) Distribution of pamphlets, handbills, and flyers, $25.
(22) Display of placards or posting of material on property, $25.
(23) Unauthorized photography on premises, $50.
(24) Failure to comply with traffic directions of VA police, $25.
(25) Parking in spaces posted as reserved for physically disabled
persons, $50.
(26) Parking in no-parking areas, lanes, or crosswalks so posted or
marked by yellow borders or yellow stripes, $25.
(27) Parking in emergency vehicle spaces, areas and lanes bordered
in red or posted as EMERGENCY VEHICLES ONLY or FIRE LANE, or parking
within 15 feet of a fire hydrant, $50.
(28) Parking within an intersection or blocking a posted vehicle
entrance or posted exit lane, $25.
(29) Parking in spaces posted as reserved or in excess of a posted
time limit, $15.
(30) Failing to come to a complete stop at a STOP sign, $25.
(31) Failing to yield to a pedestrian in a marked and posted
crosswalk, $25.
(32) Driving in the wrong direction on a posted one-way street, $25.
(33) Operation of a vehicle in a reckless or unsafe manner, too fast
for conditions, drag racing, overriding curbs, or leaving the roadway,
$100.
(34) Exceeding posted speed limits:
(i) By up to 10 mph, $25.
(ii) By up to 20 mph, $50.
(iii) By over 20 mph, $100.
(35) Creating excessive noise in a hospital or cemetery zone by
muffler cut out, excessive use of a horn, or other means, $50.
(36) Failure to yield right of way to other vehicles, $50.
(37) Possession of firearms, carried either openly or concealed,
whether loaded or unloaded (except by Federal or State law enforcement
officers on official business, $500.
(38) Introduction or possession of explosives, or explosive devices
which fire a projectile, ammunition, or combustibles, $500.
(39) Possession of knives which exceed a blade length of 3 inches;
switchblade knives; any of the variety of hatchets, clubs and hand-held
weapons; or brass knuckles, $300.
(40) The unauthorized possession of any of the variety of
incapacitating liquid or gas-emitting weapons, $200.
(41) Unauthorized possession, manufacture, or use of keys or barrier
card-type keys to rooms or areas on the property, $200.
(42) The surreptitious opening, or attempted opening, of locks or
card-operated barrier mechanisms on property, $500.
(43) Soliciting for, or the act of, prostitution, $250.
(44) Any unlawful sexual activity, $250.
(45) Jogging, bicycling, sledding or any recreational physical
activity conducted on cemetery grounds, $50.
(c) Enforcement procedures. (1) VA administration directors will
issue policies and operating procedures governing the proper exercise of
arrest and other law enforcement actions, and limiting the carrying and
use of weapons by VA police officers. VA police officers found qualified
under respective VA administration directives and duly appointed heads
of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce
these rules and regulations and other Federal laws on VA property in
accordance with the policies and operating procedures issued by
respective VA administration directors and under the direction of the
head of the facility.
(2) VA administration directors will prescribe training for VA
police officers of the scope and duration necessary to assure the proper
exercise of the law enforcement and arrest authority vested in them and
to assure their
[[Page 19]]
abilities in the safe handling of situations involving patients and the
public in general. VA police officers will successfully complete
prescribed training in law enforcement procedures and the safe handling
of patients as a condition of their retention of statutory law
enforcement and arrest authority.
(3) Nothing contained in the rules and regulations set forth in
paragraph (a) of this section shall be construed to abrogate any other
Federal laws or regulations, including assimilated offenses under 18
U.S.C. 13, or any State or local laws and regulations applicable to the
area in which the property is situated.
(Authority: 38 U.S.C. 901)
[50 FR 29226, July 18, 1985]
Parking Fees at VA Medical Facilities
Sec. 1.300 Purpose.
Sections 1.300 through 1.303 prescribe policies and procedures for
establishing parking fees for the use of Department of Veterans Affairs
controlled parking spaces at VA medical facilities.
(Authority: 38 U.S.C. 501, 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.301 Definitions.
As used in Secs. 1.300 through 1.303 of this title:
(a) Secretary means the Secretary of Veterans Affairs.
(b) Eligible person means any individual to whom the Secretary is
authorized to furnish medical examination or treatment.
(c) Garage means a structure or part of a structure in which
vehicles may be parked.
(d) Medical facility means any facility or part thereof which is
under the jurisdiction of the Secretary for the provision of health-care
services, including any necessary buildings and structures, garage or
parking facility.
(e) Parking facilities includes all surface and garage parking
spaces at a VA medical facility.
(f) Volunteer worker means an individual who performs services,
without compensation, under the auspices of VA Voluntary Service (VAVS)
at a VA medical facility, for the benefit of veterans receiving care at
that medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.302 Applicability and scope.
(a) The provisions of Secs. 1.300 through 1.303 apply to VA medical
facility parking facilities in the United States, its territories and
possessions, and the Commonwealth of Puerto Rico, and to such parking
facilities for the use of VA medical facilities jointly shared by VA and
another Federal agency when the facility is operated by the VA. Sections
1.300 through 1.303 apply to all users of those parking facilities. Fees
shall be assessed and collected at medical facilities where parking
garages are constructed, acquired, or altered at a cost exceeding
$500,000 (or, in the case of acquisition by lease, $100,000 per year).
The Secretary, in the exercise of official discretion, may also
determine that parking fees shall be charged at any other VA medical
facility.
(b) All fees established shall be reasonable under the circumstances
and shall cover all parking facilities used in connection with such VA
medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.303 Policy.
(a) General. Parking spaces at VA medical facilities shall only be
provided under the following conditions:
(1) VA and its employees shall not be liable for any damages to
vehicles (or their contents) parked in VA parking facilities, unless
such damages are directly caused by such employees acting in the course
of their VA employment.
(2) Parking facilities at VA medical facilities shall only be made
available at each medical facility for such periods and under such terms
as prescribed by the facility director, consistent with Secs. 1.300
through 1.303.
(3) VA will limit parking facilities at VA medical facilities to the
minimum necessary, and administer those parking facilities in full
compliance with ridesharing regulations and Federal laws.
[[Page 20]]
(b) Fees. (1) As provided in Sec. 1.302, VA will assess VA
employees, contractor employees, tenant employees, visitors, and other
individuals having business at a VA medical facility where VA parking
facilities are available, a parking fee for the use of that parking
facility. All parking fees shall be set at a rate which shall be
equivalent to one-half of the appropriate fair rental value (i.e.,
monthly, weekly, daily, hourly) for the use of equivalent commercial
space in the vicinity of the medical facility, subject to the terms and
conditions stated in paragraph (a) of this section. Fair rental value
shall include an allowance for the costs of management of the parking
facilities. The Secretary will determine the fair market rental value
through use of generally accepted appraisal techniques. If the appraisal
establishes that there is no comparable commercial rate because of the
absence of commercial parking facilities within a two-mile radius of the
medical facility, then the rate established shall be not less than the
lowest rate charged for parking at the VA medical facility with the
lowest established parking fees. Rates established shall be reviewed
biannually by the Secretary to reflect any increase or decrease in value
as determined by appraisal updating.
(2) No parking fees shall be established or collected for parking
facilities used by or for vehicles of the following:
(i) Volunteer workers in connection with such workers performing
services for the benefit of veterans receiving care at the medical
facility;
(ii) A veteran or an eligible person in connection with such veteran
or eligible person receiving examination or treatment;
(iii) An individual transporting a veteran or eligible person
seeking examination or treatment; and
(iv) Federal Government employees using Government owned or leased
or private vehicles for official business.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Release of Information From Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
Note: Sections 1.460 through 1.499 of this part concern the
confidentiality of information relating to drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia in VA records and are applicable in combination with
other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal
Regulations, implement the provisions of 38 U.S.C. Secs. 5701 and 5702.
Sections 1.550 through 1.559 implement the provisions of 5 U.S.C.
Sec. 552 (The Freedom of Information Act). Sections 1.575 through 1.584
implement the provisions of 5 U.S.C. Sec. 552a (The Privacy Act of
1974).
The provisions of Secs. 1.460 through 1.499 of this part pertain to
any program or activity, including education, treatment, rehabilitation
or research, which relates to drug abuse, alcoholism or alcohol abuse,
infection with the human immunodeficiency virus, or sickle cell anemia.
The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of Secs. 1.460 through 1.499 is Sec. 111 of
Pub. L. 94-581, the Veterans Omnibus Health Care Act of 1976 (38 U.S.C.
Secs. 7331 through 7334), the authority for the human immunodeficiency
virus provisions is Sec. 121 of Pub. L. 100-322, the Veterans' Benefits
and Services Act of 1988 (38 U.S.C. Sec. 7332); the authority for the
sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. Secs. 1751-1754).
Authority: 38 U.S.C. 1751-1754 and 7331-7334.
Source: Sections 1.460 through 1.499 issued at 60 FR 63929, Dec. 13,
1995, unless otherwise noted.
Sec. 1.460 Definitions.
For purposes of Secs. 1.460 through 1.499 of this part, the
following definitions apply:
Alcohol abuse. The term ``alcohol abuse'' means the use of an
alcoholic beverage which impairs the physical, mental, emotional, or
social well-being of the user.
Contractor. The term ``contractor'' means a person who provides
services to VA such as data processing, dosage preparation, laboratory
analyses or
[[Page 21]]
medical or other professional services. Each contractor shall be
required to enter into a written agreement subjecting such contractor to
the provisions of Secs. 1.460 through 1.499 of this part; 38 U.S.C. 5701
and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).
Diagnosis. The term ``diagnosis'' means any reference to an
individual's alcohol or drug abuse or to a condition which is identified
as having been caused by that abuse or any reference to sickle cell
anemia or infection with the human immunodeficiency virus which is made
for the purpose of treatment or referral for treatment. A diagnosis
prepared for the purpose of treatment or referral for treatment but
which is not so used is covered by Secs. 1.460 through 1.499 of this
part. These regulations do not apply to a diagnosis of drug overdose or
alcohol intoxication which clearly shows that the individual involved is
not an alcohol or drug abuser (e.g., involuntary ingestion of alcohol or
drugs or reaction to a prescribed dosage of one or more drugs).
Disclose or disclosure. The term ``disclose'' or ``disclosure''
means a communication of patient identifying information, the
affirmative verification of another person's communication of patient
identifying information, or the communication of any information from
the record of a patient who has been identified.
Drug abuse. The term ``drug abuse'' means the use of a psychoactive
substance for other than medicinal purposes which impairs the physical,
mental, emotional, or social well-being of the user.
Infection with the human immunodeficiency virus (HIV). The term
``infection with the human immunodeficiency virus (HIV)'' means the
presence of laboratory evidence for human immunodeficiency virus
infection. For the purposes of Secs. 1.460 through 1.499 of this part,
the term includes the testing of an individual for the presence of the
virus or antibodies to the virus and information related to such testing
(including tests with negative results).
Informant. The term ``informant'' means an individual who is a
patient or employee or who becomes a patient or employee at the request
of a law enforcement agency or official and who at the request of a law
enforcement agency or official observes one or more patients or
employees for the purpose of reporting the information obtained to the
law enforcement agency or official.
Patient. The term ``patient'' means any individual or subject who
has applied for or been given a diagnosis or treatment for drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency
virus, or sickle cell anemia and includes any individual who, after
arrest on a criminal charge, is interviewed and/or tested in connection
with drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in order to determine that
individual's eligibility to participate in a treatment or rehabilitation
program. The term patient includes an individual who has been diagnosed
or treated for alcoholism, drug abuse, HIV infection, or sickle cell
anemia for purposes of participation in a VA program or activity
relating to those four conditions, including a program or activity
consisting of treatment, rehabilitation, education, training,
evaluation, or research. The term ``patient'' for the purpose of
infection with the human immunodeficiency virus or sickle cell anemia,
includes one tested for the disease.
Patient identifying information. The term ``patient identifying
information'' means the name, address, social security number,
fingerprints, photograph, or similar information by which the identity
of a patient can be determined with reasonable accuracy and speed either
directly or by reference to other publicly available information. The
term does not include a number assigned to a patient by a treatment
program, if that number does not consist of, or contain numbers (such as
social security, or driver's license number) which could be used to
identify a patient with reasonable accuracy and speed from sources
external to the treatment program.
Person. The term ``person'' means an individual, partnership,
corporation, Federal, State or local government agency, or any other
legal entity.
[[Page 22]]
Records. The term ``records'' means any information received,
obtained or maintained, whether recorded or not, by an employee or
contractor of VA, for the purpose of seeking or performing VA program or
activity functions relating to drug abuse, alcoholism, tests for or
infection with the human immunodeficiency virus, or sickle cell anemia
regarding an identifiable patient. A program or activity function
relating to drug abuse, alcoholism, infection with the human
immunodeficiency virus, or sickle cell anemia includes evaluation,
treatment, education, training, rehabilitation, research, or referral
for one of these conditions. Sections 1.460 through 1.499 of this part
apply to a primary or other diagnosis, or other information which
identifies, or could reasonably be expected to identify, a patient as
having a drug or alcohol abuse condition, infection with the human
immunodeficiency virus, or sickle cell anemia (e.g., alcoholic
psychosis, drug dependence), but only if such diagnosis or information
is received, obtained or maintained for the purpose of seeking or
performing one of the above program or activity functions. Sections
1.460 through 1.499 of this part do not apply if such diagnosis or other
information is not received, obtained or maintained for the purpose of
seeking or performing a function or activity relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia for the patient in question. Whenever such diagnosis or
other information, not originally received or obtained for the purpose
of obtaining or providing one of the above program or activity
functions, is subsequently used in connection with such program or
activity functions, those original entries become a ``record'' and
Secs. 1.460 through 1.499 of this part thereafter apply to those
entries. Segregability: these regulations do not apply to records or
information contained therein, the disclosure of which (the
circumstances surrounding the disclosure having been considered) could
not reasonably be expected to disclose the fact that a patient has been
connected with a VA program or activity function relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia.
(1) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are covered by the
provisions of Secs. 1.460 through 1.499 of this part:
(i) A patient with alcoholic delirium tremens is admitted for
detoxification. The patient is offered treatment in a VA alcohol
rehabilitation program which he declines.
(ii) A patient who is diagnosed as a drug abuser applies for and is
provided VA drug rehabilitation treatment.
(iii) While undergoing treatment for an unrelated medical condition,
a patient discusses with the physician his use and abuse of alcohol. The
physician offers VA alcohol rehabilitation treatment which is declined
by the patient.
(2) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are not covered by the
provisions of Secs. 1.460 through 1.499 of this part:
(i) A patient with alcoholic delirium tremens is admitted for
detoxification, treated and released with no counseling or treatment for
the underlying condition of alcoholism.
(ii) While undergoing treatment for an unrelated medical condition,
a patient informs the physician of a history of drug abuse fifteen years
earlier with no ingestion of drugs since. The history and diagnosis of
drug abuse is documented in the hospital summary and no treatment is
sought by the patient or offered or provided by VA during the current
period of treatment.
(iii) While undergoing treatment for injuries sustained in an
accident, a patient's medical record is documented to support the
judgment of the physician to prescribe certain alternate medications in
order to avoid possible drug interactions in view of the patient's
enrollment and treatment in a non-VA methadone maintenance program. The
patient states that continued treatment and follow-up will be obtained
from private physicians and VA treatment for the drug abuse is not
sought by the patient nor provided or offered by the staff.
(iv) A patient is admitted to the emergency room suffering from a
possible drug overdose. The patient is
[[Page 23]]
treated and released; a history and diagnosis of drug abuse may be
documented in the hospital summary. The patient is not offered treatment
for the underlying conditions of drug abuse, nor is treatment sought by
the patient for that condition.
Third party payer. The term ``third party payer'' means a person who
pays, or agrees to pay, for diagnosis or treatment furnished to a
patient on the basis of a contractual relationship with the patient or a
member of his or her family or on the basis of the patient's eligibility
for Federal, State, or local governmental benefits.
Treatment. The term ``treatment'' means the management and care of a
patient for drug abuse, alcoholism or alcohol abuse, infection with the
human immunodeficiency virus, or sickle cell anemia, or a condition
which is identified as having been caused by one or more of these
conditions, in order to reduce or eliminate the adverse effects upon the
patient. The term includes testing for the human immunodeficiency virus
or sickle cell anemia.
Undercover agent. The term ``undercover agent'' means an officer of
any Federal, State, or local law enforcement agency who becomes a
patient or employee for the purpose of investigating a suspected
violation of law or who pursues that purpose after becoming a patient or
becoming employed for other purposes.
(Authority: 38 U.S.C. 7334)
Sec. 1.461 Applicability.
(a) General--(1) Restrictions on disclosure. The restrictions on
disclosure in these regulations apply to any information whether or not
recorded, which:
(i) Would identify a patient as an alcohol or drug abuser, an
individual tested for or infected with the human immunodeficiency virus
(HIV), hereafter referred to as HIV, or an individual with sickle cell
anemia, either directly, by reference to other publicly available
information, or through verification of such an identification by
another person; and
(ii) Is provided or obtained for the purpose of treating alcohol or
drug abuse, infection with the HIV, or sickle cell anemia, making a
diagnosis for that treatment, or making a referral for that treatment as
well as for education, training, evaluation, rehabilitation and research
program or activity purposes.
(2) Restriction on use. The restriction on use of information to
initiate or substantiate any criminal charges against a patient or to
conduct any criminal investigation of a patient applies to any
information, whether or not recorded, which is maintained for the
purpose of treating drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia, making a diagnosis for that
treatment, or making a referral for that treatment as well as for
education, training, evaluation, rehabilitation, and research program or
activity purposes.
(b) Period covered as affecting applicability. The provisions of
Secs. 1.460 through 1.499 of this part apply to records of identity,
diagnosis, prognosis, or treatment pertaining to any given individual
maintained over any period of time which, irrespective of when it
begins, does not end before March 21, 1972, in the case of diagnosis or
treatment for drug abuse; or before May 14, 1974, in the case of
diagnosis or treatment for alcoholism or alcohol abuse; or before
September 1, 1973, in the case of testing, diagnosis or treatment of
sickle cell anemia; or before May 20, 1988, in the case of testing,
diagnosis or treatment for an infection with the HIV.
(c) Exceptions--(1) Department of Veterans Affairs and Armed Forces.
The restrictions on disclosure in Secs. 1.460 through 1.499 of this part
do not apply to communications of information between or among those
components of VA who have a need for the information in connection with
their duties in the provision of health care, adjudication of benefits,
or in carrying out administrative responsibilities related to those
functions, including personnel of the Office of the Inspector General
who are conducting audits, evaluations, healthcare inspections, or non-
patient investigations, or between such components and the Armed Forces,
of information pertaining to a person relating to a period when such
person is or was subject to the Uniform Code of Military Justice.
Information obtained by
[[Page 24]]
VA components under these circumstances may be disclosed outside of VA
to prosecute or investigate a non-patient only in accordance with
Sec. 1.495 of this part. Similarly, the restrictions on disclosure in
Secs. 1.460 through 1.499 of this part do not apply to communications of
information to the Department of Justice or U.S. Attorneys who are
providing support in civil litigation or possible litigation involving
VA.
(2) Contractor. The restrictions on disclosure in Secs. 1.460
through 1.499 of this part do not apply to communications between VA and
a contractor of information needed by the contractor to provide his or
her services.
(3) Crimes on VA premises or against VA personnel. The restrictions
on disclosure and use in Secs. 1.460 through 1.499 of this part do not
apply to communications from VA personnel to law enforcement officers
which:
(i) Are directly related to a patient's commission of a crime on the
premises of the facility or against personnel of VA or to a threat to
commit such a crime; and
(ii) Are limited to the circumstances of the incident, including the
patient status of the individual committing or threatening to commit the
crime, that individual's name and address to the extent authorized by 38
U.S.C. 5701(f)(2), and that individual's last known whereabouts.
(4) Undercover agents and informants. (i) Except as specifically
authorized by a court order granted under Sec. 1.495 of this part, VA
may not knowingly employ, or admit as a patient, any undercover agent or
informant in any VA drug abuse, alcoholism or alcohol abuse, HIV
infection, or sickle cell anemia treatment program.
(ii) No information obtained by an undercover agent or informant,
whether or not that undercover agent or informant is placed in a VA drug
abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program pursuant to an authorizing court order, may be used to
criminally investigate or prosecute any patient unless authorized
pursuant to the provisions of Sec. 1.494 of this part.
(iii) The enrollment of an undercover agent or informant in a
treatment unit shall not be deemed a violation of this section if the
enrollment is solely for the purpose of enabling the individual to
obtain treatment for drug or alcohol abuse, HIV infection, or sickle
cell anemia.
(d) Applicability to recipients of information--(1) Restriction on
use of information. In the absence of a proper Sec. 1.494 court order,
the restriction on the use of any information subject to Secs. 1.460
through 1.499 of this part to initiate or substantiate any criminal
charges against a patient or to conduct any criminal investigation of a
patient applies to any person who obtains that information from VA,
regardless of the status of the person obtaining the information or of
whether the information was obtained in accordance with Secs. 1.460
through 1.499 of this part. This restriction on use bars, among other
things, the introduction of that information as evidence in a criminal
proceeding and any other use of the information to investigate or
prosecute a patient with respect to a suspected crime. Information
obtained by undercover agents or informants (see paragraph (c) of this
section) or through patient access (see Sec. 1.469 of this part) is
subject to the restriction on use.
(2) Restrictions on disclosures--third-party payers and others. The
restrictions on disclosure in Secs. 1.460 through 1.499 of this part
apply to third-party payers and persons who, pursuant to a consent,
receive patient records directly from VA and who are notified of the
restrictions on redisclosure of the records in accordance with
Sec. 1.476 of this part.
(Authority: 38 U.S.C. 7332(e) and 7334)
Sec. 1.462 Confidentiality restrictions.
(a) General. The patient records to which Secs. 1.460 through 1.499
of this part apply may be disclosed or used only as permitted by these
regulations and may not otherwise be disclosed or used in any civil,
criminal, administrative, or legislative proceedings conducted by any
Federal, State, or local authority. Any disclosure made under these
regulations must be limited to that information which is necessary to
carry out the purpose of the disclosure.
(b) Unconditional compliance required. The restrictions on
disclosure and use in Secs. 1.460 through 1.499 of this part
[[Page 25]]
apply whether the person seeking the information already has it, has
other means of obtaining it, is a law enforcement or other official, has
obtained a subpoena, or asserts any other justification for a disclosure
or use which is not permitted by Secs. 1.460 through 1.499 of this part.
These provisions do not prohibit VA from acting accordingly when there
is no disclosure of information.
(c) Acknowledging the presence of patients: responding to requests.
(1) The presence of an identified patient in a VA facility for the
treatment or other VA program activity relating to drug abuse,
alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia may be acknowledged only if the patient's written consent is
obtained in accordance with Sec. 1.475 of this part or if an authorizing
court order is entered in accordance with Secs. 1.490 through 1.499 of
this part. Acknowledgment of the presence of an identified patient in a
facility is permitted if the acknowledgment does not reveal that the
patient is being treated for or is otherwise involved in a VA program or
activity concerning drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia.
(2) Any answer to a request for a disclosure of patient records
which is not permissible under Secs. 1.460 through 1.499 of this part
must be made in a way that will not affirmatively reveal that an
identified individual has been, or is being diagnosed or treated for
drug abuse, alcoholism or alcohol abuse, infection with the HIV, or
sickle cell anemia. These regulations do not restrict a disclosure that
an identified individual is not and never has been a patient.
(Authority: 38 U.S.C. 7334)
Sec. 1.463 Criminal penalty for violations.
Under 38 U.S.C. 7332(g), any person who violates any provision of
this statute or Secs. 1.460 through 1.499 of this part shall be fined
not more than $5,000 in the case of a first offense, and not more than
$20,000 for a subsequent offense.
(Authority: 38 U.S.C. 7332(g))
Sec. 1.464 Minor patients.
(a) Definition of minor. As used in Secs. 1.460 through 1.499 of
this part the term ``minor'' means a person who has not attained the age
of majority specified in the applicable State law, or if no age of
majority is specified in the applicable State law, the age of eighteen
years.
(b) State law not requiring parental consent to treatment. If a
minor patient acting alone has the legal capacity under the applicable
State law to apply for and obtain treatment for drug abuse, alcoholism
or alcohol abuse, infection with the HIV, or sickle cell anemia, any
written consent for disclosure authorized under Sec. 1.475 of this part
may be given only by the minor patient. This restriction includes, but
is not limited to, any disclosure of patient identifying information to
the parent or guardian of a minor patient for the purpose of obtaining
financial reimbursement. Sections 1.460 through 1.499 of this part do
not prohibit a VA facility from refusing to provide nonemergent
treatment to an otherwise ineligible minor patient until the minor
patient consents to the disclosure necessary to obtain reimbursement for
services from a third party payer.
(c) State law requiring parental consent to treatment. (1) Where
State law requires consent of a parent, guardian, or other person for a
minor to obtain treatment for drug abuse, alcoholism or alcohol abuse,
infection with the HIV, or sickle cell anemia, any written consent for
disclosure authorized under Sec. 1.475 of this part must be given by
both the minor and his or her parent, guardian, or other person
authorized under State law to act in the minor's behalf.
(2) Where State law requires parental consent to treatment, the fact
of a minor's application for treatment may be communicated to the
minor's parent, guardian, or other person authorized under State law to
act in the minor's behalf only if:
(i) The minor has given written consent to the disclosure in
accordance with Sec. 1.475 of this part; or
(ii) The minor lacks the capacity to make a rational choice
regarding such consent as judged by the appropriate VA facility director
under paragraph (d) of this section.
[[Page 26]]
(d) Minor applicant for service lacks capacity for rational choice.
Facts relevant to reducing a threat to the life or physical well being
of the applicant or any other individual may be disclosed to the parent,
guardian, or other person authorized under State law to act in the
minor's behalf if the appropriate VA facility director judges that:
(1) A minor applicant for services lacks capacity because of extreme
youth or mental or physical condition to make a rational decision on
whether to consent to a disclosure under Sec. 1.475 of this part to his
or her parent, guardian, or other person authorized under State law to
act in the minor's behalf, and
(2) The applicant's situation poses a substantial threat to the life
or physical well-being of the applicant or any other individual which
may be reduced by communicating relevant facts to the minor's parent,
guardian, or other person authorized under State law to act in the
minor's behalf.
(Authority: 38 U.S.C. 7334)
Sec. 1.465 Incompetent and deceased patients.
(a) Incompetent patients other than minors. In the case of a patient
who has been adjudicated as lacking the capacity, for any reason other
than insufficient age, to manage his or her own affairs, any consent
which is required under Secs. 1.460 through 1.499 of this part may be
given by a court appointed legal guardian.
(b) Deceased patients--(1) Vital statistics. Sec. 1.460 through
1.499 of this part do not restrict the disclosure of patient identifying
information relating to the cause of death of a patient under laws
requiring the collection of death or other vital statistics or
permitting inquiry into the cause of death.
(2) Consent by personal representative. Any other disclosure of
information identifying a deceased patient as being treated for drug
abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle
cell anemia is subject to Secs. 1.460 through 1.499 of this part. If a
written consent to the disclosure is required, the Under Secretary for
Health or designee may, upon the prior written request of the next of
kin, executor/executrix, administrator/administratrix, or other personal
representative of such deceased patient, disclose the contents of such
records, only if the Under Secretary for Health or designee determines
such disclosure is necessary to obtain survivorship benefits for the
deceased patient's survivor. This would include not only VA benefits,
but also payments by the Social Security Administration, Worker's
Compensation Boards or Commissions, or other Federal, State, or local
government agencies, or nongovernment entities, such as life insurance
companies.
(3) Information related to sickle cell anemia. Information related
to sickle cell anemia may be released to a blood relative of a deceased
veteran for medical follow-up or family planning purposes.
(Authority: 38 U.S.C. 7332(b)(3))
Sec. 1.466 Security for records.
(a) Written records which are subject to Secs. 1.460 through 1.499
of this part must be maintained in a secure room, locked file cabinet,
safe or other similar container when not in use. Access to information
stored in computers will be limited to authorized VA employees who have
a need for the information in performing their duties. These security
precautions shall be consistent with the Privacy Act of 1974 (5 U.S.C.
552a).
(b) Each VA facility shall adopt in writing procedures related to
the access to and use of records which are subject to Secs. 1.460
through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.467 Restrictions on the use of identification cards and public signs.
(a) No facility may require any patient to carry on their person
while away from the facility premises any card or other object which
would identify the patient as a participant in any VA drug abuse,
alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program. A facility may require patients to use or carry cards
or other identification objects on the premises of a facility. Patients
may not be required to wear clothing or colored identification bracelets
or display
[[Page 27]]
objects openly to all facility staff or others which would identify them
as being treated for drug or alcohol abuse, HIV infection, or sickle
cell anemia.
(b) Treatment locations should not be identified by signs that would
identify individuals entering or exiting these locations as patients
enrolled in a drug or alcohol abuse, HIV infection, or sickle cell
anemia program or activity.
(Authority: 38 U.S.C. 7334)
Sec. 1.468 Relationship to Federal statutes protecting research subjects against compulsory disclosure of their identity.
(a) Research privilege description. There may be concurrent coverage
of patient identifying information by the provisions of Secs. 1.460
through 1.499 of this part and by administrative action taken under Sec.
303(a) of the Public Health Service Act (42 U.S.C. 241(d) and the
implementing regulations at 42 CFR Part 2a); or Sec. 502(c) of the
Controlled Substances Act (21 U.S.C. 872(c) and the implementing
regulations at 21 CFR 1316.21). These ``research privilege'' statutes
confer on the Secretary of Health and Human Services and on the Attorney
General, respectively, the power to authorize researchers conducting
certain types of research to withhold from all persons not connected
with the research the names and other identifying information concerning
individuals who are the subjects of the research.
(b) Effect of concurrent coverage. Sections 1.460 through 1.499 of
this part restrict the disclosure and use of information about patients,
while administrative action taken under the research privilege statutes
and implementing regulations protects a person engaged in applicable
research from being compelled to disclose any identifying
characteristics of the individuals who are the subjects of that
research. The issuance under Secs. 1.490 through 1.499 of this part of a
court order authorizing a disclosure of information about a patient does
not affect an exercise of authority under these research privilege
statutes. However, the research privilege granted under 21 CFR
291.505(g) to treatment programs using methadone for maintenance
treatment does not protect from compulsory disclosure any information
which is permitted to be disclosed under those regulations. Thus, if a
court order entered in accordance with Secs. 1.490 through 1.499 of this
part authorizes a VA facility to disclose certain information about its
patients, the facility may not invoke the research privilege under 21
CFR 291.505(g) as a defense to a subpoena for that information.
(Authority: 38 U.S.C. 7334)
Sec. 1.469 Patient access and restrictions on use.
(a) Patient access not prohibited. Sections 1.460 through 1.499 of
this part do not prohibit a facility from giving a patient access to his
or her own records, including the opportunity to inspect and copy any
records that VA maintains about the patient, subject to the provisions
of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the
patient is accompanied, giving access to the patient and the
accompanying person will require a written consent by the patient which
is provided in accordance with Sec. 1.475 of this part.
(b) Restrictions on use of information. Information obtained by
patient access to patient record is subject to the restriction on use of
this information to initiate or substantiate any criminal charges
against the patient or to conduct any criminal investigation of the
patient as provided for under Sec. 1.461(d)(1) of this part.
(Authority: 38 U.S.C. 7334)
Secs. 1.470--1.474 [Reserved]
Disclosures With Patient's Consent
Sec. 1.475 Form of written consent.
(a) Required elements. A written consent to a disclosure under
Secs. 1.460 through 1.499 of this part must include:
(1) The name of the facility permitted to make the disclosure (such
a designation does not preclude the release of records from other VA
health care facilities unless a restriction is stated on the consent).
(2) The name or title of the individual or the name of the
organization to which disclosure is to be made.
(3) The name of the patient.
(4) The purpose of the disclosure.
[[Page 28]]
(5) How much and what kind of information is to be disclosed.
(6) The signature of the patient and, when required for a patient
who is a minor, the signature of a person authorized to give consent
under Sec. 1.464 of this part; or, when required for a patient who is
incompetent or deceased, the signature of a person authorized to sign
under Sec. 1.465 of this part in lieu of the patient.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any
time except to the extent that the facility which is to make the
disclosure has already acted in reliance on it. Acting in reliance
includes the provision of treatment services in reliance on a valid
consent to disclose information to a third party payer.
(9) The date, event, or condition upon which the consent will expire
if not revoked before. This date, event, or condition must ensure that
the consent will last no longer than reasonably necessary to serve the
purpose for which it is given.
(b) Expired, deficient, or false consent. A disclosure may not be
made on the basis of a consent which:
(1) Has expired;
(2) On its face substantially fails to conform to any of the
requirements set forth in paragraph (a) of this section;
(3) Is known to have been revoked; or
(4) Is known, or through a reasonable effort could be known, by
responsible personnel of VA to be materially false.
(c) Notification of deficient consent. Other than the patient, no
person or entity may be advised that a special consent is required in
order to disclose information relating to an individual participating in
a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia
program or activity. Where a person or entity presents VA with an
insufficient written consent for information protected by 38 U.S.C.
7332, VA must, in the process of obtaining a legally sufficient consent,
correspond only with the patient whose records are involved, or the
legal guardian of an incompetent patient or next of kin of a deceased
patient, and not with any other person.
(d) It is not necessary to use any particular form to establish a
consent referred to in paragraph (a) of this section, however, VA Form
10-5345, titled Request for and Consent to Release of Medical Records
Protected by 38 U.S.C. 7332, may be used for such purpose.
(Authority: 38 U.S.C. 7332(a)(2) and (b)(1))
Sec. 1.476 Prohibition on redisclosure.
Each disclosure under Secs. 1.460 through 1.499 of this part made
with the patient's written consent must be accompanied by a written
statement similar to the following:
This information has been disclosed to you from records protected by
Federal confidentiality rules (38 CFR Part 1). The Federal rules
prohibit you from making any further disclosure of this information
unless further disclosure is expressly permitted by the written consent
of the person to whom it pertains or as otherwise permitted by 38 CFR
Part 1. A general authorization for the release of medical or other
information is NOT sufficient for this purpose. The Federal rules
restrict any use of the information to criminally investigate or
prosecute any alcohol or drug abuse patient or patient with sickle cell
anemia or HIV infection.
(Authority: 38 U.S.C. 7334)
Sec. 1.477 Disclosures permitted with written consent.
If a patient consents to a disclosure of his or her records under
Sec. 1.475 of this part, a facility may disclose those records in
accordance with that consent to any individual or organization named in
the consent, except that disclosures to central registries and in
connection with criminal justice referrals must meet the requirements of
Secs. 1.478 and 1.479 of this part, respectively.
(Authority: 38 U.S.C. 7332(b)(1))
Sec. 1.478 Disclosures to prevent multiple enrollments in detoxification and maintenance treatment programs; not applicable to records relating to sickle cell
anemia or infection with the human immunodeficiency virus.
(a) Definitions. For purposes of this section:
(1) Central registry means an organization which obtains from two or
more member programs patient identifying information about individuals
applying
[[Page 29]]
for maintenance treatment or detoxification treatment for the purpose of
avoiding an individual's concurrent enrollment in more than one program.
(2) Detoxification treatment means the dispensing of a narcotic drug
in decreasing doses to an individual in order to reduce or eliminate
adverse physiological or psychological effects incident to withdrawal
from the sustained use of a narcotic drug.
(3) Maintenance treatment means the dispensing of a narcotic drug in
the treatment of an individual for dependence upon heroin or other
morphine-like drugs.
(4) Member program means a non-VA detoxification treatment or
maintenance treatment program which reports patient identifying
information to a central registry and which is in the same State as that
central registry or is not more than 125 miles from any border of the
State in which the central registry is located.
(b) Restrictions on disclosure. VA may disclose patient records to a
central registry which is located in the same State or is not more than
125 miles from any border of the State or to any non-VA detoxification
or maintenance treatment program not more than 200 miles away for the
purpose of preventing the multiple enrollment of a patient only if:
(1) The disclosure is made when:
(i) The patient is accepted for treatment;
(ii) The type or dosage of the drug is changed; or
(iii) The treatment is interrupted, resumed or terminated.
(2) The disclosure is limited to:
(i) Patient identifying information;
(ii) Type and dosage of the drug; and
(iii) Relevant dates.
(3) The disclosure is made with the patient's written consent
meeting the requirements of Sec. 1.475 of this part, except that:
(i) The consent must list the name and address of each central
registry and each known non-VA detoxification or maintenance treatment
program to which a disclosure will be made; and
(ii) The consent may authorize a disclosure to any non-VA
detoxification or maintenance treatment program established within 200
miles after the consent is given without naming any such program.
(c) Use of information limited to prevention of multiple
enrollments. A central registry and any non-VA detoxification or
maintenance treatment program to which information is disclosed to
prevent multiple enrollments may not redisclose or use patient
identifying information for any purpose other than the prevention of
multiple enrollments unless authorized by a court order under
Secs. 1.490 through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.479 Disclosures to elements of the criminal justice system which have referred patients.
(a) VA may disclose information about a patient from records covered
by Secs. 1.460 through 1.499 of this part to those persons within the
criminal justice system which have made participation in a VA treatment
program a condition of the disposition of any criminal proceedings
against the patient or of the patient's parole or other release from
custody if:
(1) The disclosure is made only to those individuals within the
criminal justice system who have a need for the information in
connection with their duty to monitor the patient's progress (e.g., a
prosecuting attorney who is withholding charges against the patient, a
court granting pretrial or posttrial release, probation or parole
officers responsible for supervision of the patient); and
(2) The patient has signed a written consent as a condition of
admission to the treatment program meeting the requirements of
Sec. 1.475 of this part (except paragraph (a)(8) which is inconsistent
with the revocation provisions of paragraph (c) of this section) and the
requirements of paragraphs (b) and (c) of this section.
(b) Duration of consent. The written consent must state the period
during which it remains in effect. This period must be reasonable,
taking into account:
(1) The anticipated length of the treatment recognizing that
revocation of consent may not generally be effected while treatment is
ongoing;
(2) The type of criminal proceeding involved, the need for the
information
[[Page 30]]
in connection with the final disposition of that proceeding, and when
the final disposition will occur; and
(3) Such other factors as the facility, the patient, and the
person(s) who will receive the disclosure consider pertinent.
(c) Revocation of consent. The written consent must state that it is
revocable upon the passage of a specified amount of time or the
occurrence of a specified, ascertainable event. The time or occurrence
upon which consent becomes revocable may be no earlier than the
individual's completion of the treatment program and no later than the
final disposition of the conditional release or other action in
connection with which consent was given.
(d) Restrictions on redisclosure and use. A person who receives
patient information under this section may redisclose and use it only to
carry out that person's official duties with regard to the patient's
conditional release or other action in connection with which the consent
was given, including parole.
(Authority: 38 U.S.C. 7334)
Secs. 1.480--1.484 [Reserved]
Disclosures Without Patient Consent
Sec. 1.485 Medical emergencies.
(a) General rule. Under the procedures required by paragraph (c) of
this section, patient identifying information from records covered by
Secs. 1.460 through 1.499 of this part may be disclosed to medical
personnel who have a need for information about a patient for the
purpose of treating a condition which poses an immediate threat to the
health of any individual and which requires immediate medical
intervention.
(b) Special rule. Patient identifying information may be disclosed
to medical personnel of the Food and Drug Administration (FDA) who
assert a reason to believe that the health of any individual may be
threatened by an error in the manufacture, labeling, or sale of a
product under FDA jurisdiction, and that the information will be used
for the exclusive purpose of notifying patients or their physicians of
potential dangers.
(c) Procedures. Immediately following disclosure, any VA employee
making an oral disclosure under authority of this section shall make an
accounting of the disclosure in accordance with the Privacy Act (5
U.S.C. 552a(c) and 38 CFR 1.576(c)) and document the disclosure in the
patient's records setting forth in writing:
(1) The name and address of the medical personnel to whom disclosure
was made and their affiliation with any health care facility;
(2) The name of the individual making the disclosure;
(3) The date and time of the disclosure;
(4) The nature of the emergency (or error, if the report was to
FDA);
(5) The information disclosed; and
(6) The authority for making the disclosure (Sec. 1.485 of this
part).
(Authority: 38 U.S.C. 7332(b)(2)(A))
Sec. 1.486 Disclosure of information related to infection with the human immunodeficiency virus to public health authorities.
(a) In the case of any record which is maintained in connection with
the performance of any program or activity relating to infection with
the HIV, information may be disclosed to a Federal, State, or local
public health authority, charged under Federal or State law with the
protection of the public health, and to which Federal or State law
requires disclosure of such record, if a qualified representative of
such authority has made a written request that such record be provided
as required pursuant to such law for a purpose authorized by such law.
In the case of a State law, such law must, in order for VA to be able to
release patient name and address information in accordance with 38
U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be
assessed against those individuals who are subject to the jurisdiction
of the public health authority but fail to comply with the reporting
requirements.
(b) A person to whom a record is disclosed under this section may
not redisclose or use such record for a purpose other than that for
which the disclosure was made.
(Authority: 38 U.S.C. 7332(b)(2)(C))
[[Page 31]]
Sec. 1.487 Disclosure of information related to infection with the human immunodeficiency virus to the spouse or sexual partner of the patient.
(a) Subject to paragraph (b) of this section, a physician or a
professional counselor may disclose information or records indicating
that a patient is infected with the HIV if the disclosure is made to the
spouse of the patient, or to an individual whom the patient has, during
the process of professional counseling or of testing to determine
whether the patient is infected with such virus, identified as being a
sexual partner of such patient.
(b) A disclosure under this section may be made only if the
physician or counselor, after making reasonable efforts to counsel and
encourage the patient to provide the information to the spouse or sexual
partner, reasonably believes that the patient will not provide the
information to the spouse or sexual partner and that the disclosure is
necessary to protect the health of the spouse or sexual partner.
(c) A disclosure under this section may be made by a physician or
counselor other than the physician or counselor referred to in paragraph
(b) of this section if such physician or counselor is unavailable by
reason of extended absence or termination of employment to make the
disclosure.
(Authority: 38 U.S.C. 7332(b))
Sec. 1.488 Research activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584 and the following
paragraphs, patient medical record information covered by Secs. 1.460
through 1.499 of this part may be disclosed for the purpose of
conducting scientific research.
(a) Information in individually identifiable form may be disclosed
from records covered by Secs. 1.460 through 1.499 of this part for the
purpose of conducting scientific research if the Under Secretary for
Health or designee makes a determination that the recipient of the
patient identifying information:
(1) Is qualified to conduct the research.
(2) Has a research protocol under which the information:
(i) Will be maintained in accordance with the security requirements
of Sec. 1.466 of this part (or more stringent requirements); and
(ii) Will not be redisclosed except as permitted under paragraph (b)
of this section.
(3) Has furnished a written statement that the research protocol has
been reviewed by an independent group of three or more individuals who
found that the rights of patients would be adequately protected and that
the potential benefits of the research outweigh any potential risks to
patient confidentiality posed by the disclosure of records.
(b) A person conducting research may disclose information obtained
under paragraph (a) of this section only back to VA and may not identify
any individual patient in any report of that research or otherwise
disclose patient identities.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Sec. 1.489 Audit and evaluation activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584, and the following
paragraphs, patient medical records covered by Secs. 1.460 through 1.499
of this part may be disclosed outside VA for the purposes of conducting
audit and evaluation activities.
(a) Records not copies. If patient records covered by Secs. 1.460
through 1.499 of this part are not copied, patient identifying
information may be disclosed in the course of a review of records on VA
facility premises to any person who agrees in writing to comply with the
limitations on redisclosure and use in paragraph (d) of this section
and:
(1) Where audit or evaluation functions are performed by a State or
Federal governmental agency on behalf of VA; or
(2) Who is determined by the VA facility director to be qualified to
conduct the audit or evaluation activities.
(b) Copying of records. Records containing patient identifying
information may be copied by any person who:
(1) Agrees in writing to:
(i) Maintain the patient identifying information in accordance with
the security requirements provided in Sec. 1.466
[[Page 32]]
of this part (or more stringent requirements);
(ii) Destroy all the patient identifying information upon completion
of the audit or evaluation; and
(iii) Comply with the limitations on disclosure and use in paragraph
(d) of this section.
(2) The VA medical facility director determines to be qualified to
conduct the audit or evaluation activities.
(c) Congressional oversight. Records subject to Secs. 1.460 through
1.499 of this part upon written request may be released to congressional
committees or subcommittees for program oversight and evaluation if such
records pertain to any matter within the jurisdiction of such committee
or subcommittee.
(d) Limitation on disclosure and use. Records containing patient
identifying information disclosed under this section may be disclosed
only back to VA and used only to carry out an audit or evaluation
purpose, or, to investigate or prosecute criminal or other activities as
authorized by a court order entered under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Court Orders Authorizing Disclosures and Use
Sec. 1.490 Legal effect of order.
The records to which Secs. 1.460 through 1.499 of this part apply
may be disclosed if authorized by an appropriate order of a court of
competent jurisdiction granted after application showing good cause
therefore. In assessing good cause the court is statutorily required to
weigh the public interest and the need for disclosure against the injury
to the patient or subject, to the physician-patient relationship, and to
the treatment services. Upon the granting of such order, the court, in
determining the extent to which any disclosure of all or any part of any
record is necessary, is required by statute to impose appropriate
safeguards against unauthorized disclosure. An order of a court of
competent jurisdiction to produce records subject to Secs. 1.460 through
1.499 of this part will not be sufficient unless the order reflects that
the court has complied with the requirements of 38 U.S.C. 7332(b)(2)(D).
Such an order from a Federal court compels disclosure. However, such an
order from a State court only acts to authorize the Secretary to
exercise discretion pursuant to 38 U.S.C. 5701(b)(5) and 38 CFR 1.511 to
disclose such records. It does not compel disclosure.
(Authority: 38 U.S.C. 7332(b)(2)(D))
Sec. 1.491 Confidential communications.
(a) A court order under Secs. 1.490 through 1.499 of this part may
authorize disclosure of confidential communications made by a patient to
a treatment program in the course of diagnosis, treatment, or referral
for treatment only if:
(1) The disclosure is necessary to protect against an existing
threat to life or of serious bodily injury, including circumstances
which constitute suspected child abuse and neglect and verbal threats
against third parties;
(2) The disclosure is necessary in connection with investigation or
prosecution of an extremely serious crime, such as one which directly
threatens loss of life or serious bodily injury, including homicide,
rape, kidnapping, armed robbery, assault with a deadly weapon, or child
abuse and neglect; or
(3) The disclosure is in connection with litigation or an
administrative proceeding in which the patient offers testimony or other
evidence pertaining to the content of the confidential communications.
(b) [Reserved]
(Authority: 38 U.S.C. 7334)
Sec. 1.492 Order not applicable to records disclosed without consent to researchers, auditors and evaluators.
A court order under Secs. 1.460 through 1.499 of this part may not
authorize qualified personnel, who have received patient identifying
information from VA without consent for the purpose of conducting
research, audit or evaluation, to disclose that information or use it to
conduct any criminal investigation or prosecution of a patient. However,
a court order under Sec. 1.495 of this part may authorize disclosure and
use of records to investigate or prosecute VA personnel.
(Authority: 38 U.S.C. 7334)
[[Page 33]]
Sec. 1.493 Procedures and criteria for orders authorizing disclosures for noncriminal purposes.
(a) Application. An order authorizing the disclosure of patient
records covered by Secs. 1.460 through 1.499 of this part for purposes
other than criminal investigation or prosecution may be applied for by
any person having a legally recognized interest in the disclosure which
is sought. The application may be filed separately or as part of a
pending civil action in which it appears that the patient records are
needed to provide evidence. An application must use a fictitious name,
such as John Doe, to refer to any patient and may not contain or
otherwise disclose any patient identifying information unless the
patient is the applicant or has given a written consent (meeting the
requirements of Sec. 1.475 of this part) to disclosure or the court has
ordered the record of the proceeding sealed from public scrutiny.
(b) Notice. The patient and VA facility from whom disclosure is
sought must be given:
(1) Adequate notice in a manner which will not disclose patient
identifying information to other persons; and
(2) An opportunity to file a written response to the application, or
to appear in person, for the limited purpose of providing evidence on
whether the statutory and regulatory criteria for the issuance of the
court order are met.
(c) Review of evidence: Conduct of hearing. Any oral argument,
review of evidence, or hearing on the application must be held in the
judge's chambers or in some manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceeding, the patient, or VA, unless the patient requests an open
hearing in a manner which meets the written consent requirements of
Sec. 1.475 of this part. The proceeding may include an examination by
the judge of the patient records referred to in the application.
(d) Criteria for entry of order. An order under this section may be
entered only if the court determines that good cause exists. To make
this determination the court must find that:
(1) Other ways of obtaining the information are not available or
would not be effective; and
(2) The public interest and need for the disclosure outweigh the
potential injury to the patient, the physician-patient relationship and
the treatment services.
(e) Content of order. An order authorizing a disclosure must:
(1) Limit disclosure to those parts of the patient's record which
are essential to fulfill the objective of the order;
(2) Limit disclosure to those persons whose need for information is
the basis for the order; and
(3) Include such other measures as are necessary to limit disclosure
for the protection of the patient, the physician-patient relationship
and the treatment services; for example, sealing from public scrutiny
the record of any proceeding for which disclosure of a patient's record
has been ordered.
(Authority: 38 U.S.C. 7334)
Sec. 1.494 Procedures and criteria for orders authorizing disclosure and use of records to criminally investigate or prosecute patients.
(a) Application. An order authorizing the disclosure or use of
patient records covered by Secs. 1.460 through 1.499 of this part to
criminally investigate or prosecute a patient may be applied for by VA
or by any person conducting investigative or prosecutorial activities
with respect to the enforcement of criminal laws. The application may be
filed separately, as part of an application for a subpoena or other
compulsory process, or in a pending criminal action. An application must
use a fictitious name such as John Doe, to refer to any patient and may
not contain or otherwise disclose patient identifying information unless
the court has ordered the record of the proceeding sealed from public
scrutiny.
(b) Notice and hearing. Unless an order under Sec. 1.495 of this
part is sought with an order under this section, VA must be given:
(1) Adequate notice (in a manner which will not disclose patient
identifying information to third parties) of an application by a person
performing a law enforcement function;
[[Page 34]]
(2) An opportunity to appear and be heard for the limited purpose of
providing evidence on the statutory and regulatory criteria for the
issuance of the court order; and
(3) An opportunity to be represented by counsel.
(c) Review of evidence: Conduct of hearings. Any oral argument,
review of evidence, or hearing on the application shall be held in the
judge's chambers or in some other manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceedings, the patient, or VA. The proceeding may include an
examination by the judge of the patient records referred to in the
application.
(d) Criteria. A court may authorize the disclosure and use of
patient records for the purpose of conducting a criminal investigation
or prosecution of a patient only if the court finds that all of the
following criteria are met:
(1) The crime involved is extremely serious, such as one which
causes or directly threatens loss of life or serious bodily injury
including, but not limited to, homicide, rape, kidnapping, armed
robbery, assault with a deadly weapon, and child abuse and neglect.
(2) There is a reasonable likelihood that the records will disclose
information of substantial value in the investigation or prosecution.
(3) Other ways of obtaining the information are not available or
would not be effective.
(4) The potential injury to the patient, to the physician-patient
relationship and to the ability of VA to provide services to other
patients is outweighed by the public interest and the need for the
disclosure.
(5) If the applicant is a person performing a law enforcement
function, VA has been represented by counsel independent of the
applicant.
(e) Content of order. Any order authorizing a disclosure or use of
patient records under this section must:
(1) Limit disclosure and use to those parts of the patient's record
which are essential to fulfill the objective of the order;
(2) Limit disclosure to those law enforcement and prosecutorial
officials who are responsible for, or are conducting, the investigation
or prosecution, and limit their use of the records to investigation and
prosecution of extremely serious crime or suspected crime specified in
the applications; and
(3) Include such other measures as are necessary to limit disclosure
and use to the fulfillment on only that public interest and need found
by the court.
(Authority: 38 U.S.C. 7332(c))
Sec. 1.495 Procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute VA or employees of VA.
(a) Application. (1) An order authorizing the disclosure or use of
patient records covered by Secs. 1.460 through 1.499 of this part to
criminally or administratively investigate or prosecute VA (or employees
or agents of VA) may be applied for by an administrative, regulatory,
supervisory, investigative, law enforcement, or prosecutorial agency
having jurisdiction over VA activities.
(2) The application may be filed separately or as part of a pending
civil or criminal action against VA (or agents or employees of VA) in
which it appears that the patient records are needed to provide material
evidence. The application must use a fictitious name, such as John Doe,
to refer to any patient and may not contain or otherwise disclose any
patient identifying information unless the court has ordered the record
of the proceeding sealed from public scrutiny or the patient has given a
written consent (meeting the requirements of Sec. 1.475 of this part)
to that disclosure.
(b) Notice not required. An application under this section may, in
the discretion of the court, be granted without notice. Although no
express notice is required to VA or to any patient whose records are to
be disclosed, upon implementation of an order so granted VA or the
patient must be afforded an opportunity to seek revocation or amendment
of that order, limited to the presentation of evidence on the statutory
and regulatory criteria for the issuance of the court order.
(c) Requirements for order. An order under this section must be
entered in accordance with, and comply with the
[[Page 35]]
requirements of, Sec. 1.493(d) and (e) of this part.
(d) Limitations on disclosure and use of patient identifying
information. (1) An order entered under this section must require the
deletion of patient identifying information from any documents made
available to the public.
(2) No information obtained under this section may be used to
conduct any investigation or prosecution of a patient, or be used as the
basis for an application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.496 Orders authorizing the use of undercover agents and informants to criminally investigate employees or agents of VA.
(a) Application. A court order authorizing the placement of an
undercover agent or informant in a VA drug or alcohol abuse, HIV
infection, or sickle cell anemia treatment program as an employee or
patient may be applied for by any law enforcement or prosecutorial
agency which has reason to believe that employees or agents of the VA
treatment program are engaged in criminal misconduct.
(b) Notice. The VA facility director must be given adequate notice
of the application and an opportunity to appear and be heard (for the
limited purpose of providing evidence on the statutory and regulatory
criteria for the issuance of the court order), unless the application
asserts a belief that:
(1) The VA facility director is involved in the criminal activities
to be investigated by the undercover agent or informant; or
(2) The VA facility director will intentionally or unintentionally
disclose the proposed placement of an undercover agent or informant to
the employees or agents who are suspected of criminal activities.
(c) Criteria. An order under this section may be entered only if the
court determines that good cause exists. To make this determination the
court must find:
(1) There is reason to believe that an employee or agent of a VA
treatment program is engaged in criminal activity;
(2) Other ways of obtaining evidence of this criminal activity are
not available or would not be effective; and
(3) The public interest and need for the placement of an undercover
agent or informant in the VA treatment program outweigh the potential
injury to patients of the program, physician-patient relationships and
the treatment services.
(d) Content of order. An order authorizing the placement of an
undercover agent or informant in a VA treatment program must:
(1) Specifically authorize the placement of an undercover agent or
an informant;
(2) Limit the total period of the placement to six months;
(3) Prohibit the undercover agent or informant from disclosing any
patient identifying information obtained from the placement except as
necessary to criminally investigate or prosecute employees or agents of
the VA treatment program; and
(4) Include any other measures which are appropriate to limit any
potential disruption of the program by the placement and any potential
for a real or apparent breach of patient confidentiality; for example,
sealing from public scrutiny the record of any proceeding for which
disclosure of a patient's record has been ordered.
(e) Limitation on use of information. No information obtained by an
undercover agent or informant placed under this section may be used to
criminally investigate or prosecute any patient or as the basis for an
application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.497--1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
Note: Sections 1.500 through 1.527 concern the availability and
release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody pertaining to
claims under any of the laws administered by the Department of Veterans
Affairs. As to the release of information from Department of Veterans
Affairs records other than claimant records, see Secs. 1.550 through
1.558. Sections 1.500
[[Page 36]]
through 1.526 implement the provisions of 38 U.S.C. 5701, 5702.
[32 FR 10848, July 25, 1967]
Authority: Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236,
as amended; 38 U.S.C. 501, 5701.
Sec. 1.500 General.
(a) Files, records, reports, and other papers and documents
pertaining to any claim filed with the Department of Veterans Affairs,
whether pending or adjudicated, and the names and addresses of present
or former personnel of the armed services, and their dependents, in the
possession of the Department of Veterans Affairs, will be deemed
confidential and privileged, and no disclosure therefrom will be made
except in the circumstances and under the conditions set forth in
Secs. 1.501 through 1.526.
(b) A claimant may not have access to or custody of official
Department of Veterans Affairs records concerning himself or herself nor
may a claimant inspect records concerning himself or herself. Disclosure
of information from Department of Veterans Affairs records to a claimant
or his or her duly authorized agent or representative may be made,
however, under the provisions of Secs. 1.501 through 1.526.
(c) Each administration, staff office, and field facility head will
designate an employee(s) who will be responsible for initial action on
(granting or denying) requests to inspect or obtain information from or
copies of records under their jurisdiction and within the purview of
Secs. 1.501 through 1.526 unless the regulations in this part currently
contain such designations. The request should be made to the office
concerned (having jurisdiction of the record desired) or, if not known,
to the Director or Veterans Assistance Officer in the nearest VA
regional office, or to the VA Central Office, 810 Vermont Avenue NW.,
Washington, DC 20420. Personal contacts should normally be made during
the regular duty hours of the office concerned, which are 8 a.m. to 4:30
p.m., Monday through Friday, for VA Central Office and most field
facilities. Any legal question arising in a field facility concerning
the release of information will be referred to the appropriate Regional
Counsel for disposition as contemplated by Sec. 13.401 of this chapter.
In central office such legal questions will be referred to the General
Counsel. Any administrative question will be referred through
administrative channels to the appropriate administration or staff
office head.
(d) Upon denial of a request under paragraph (c) of this section,
the responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial and advise
him or her that he or she may appeal the denial. The requester will also
be furnished the title and address of the Department of Veterans Affairs
official to whom the appeal should be addressed. (See Sec. 1.527.) In
each instance of denial of a request, the denial will be made a matter
of record and the record will contain a citation to the specific
provision of Department of Veterans Affairs regulations upon which the
denial is based.
[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38
FR 15601, June 14, 1973]
Sec. 1.501 Release of information by the Secretary.
The Secretary of Veterans Affairs or the Deputy Secretary may
release information, statistics, or reports to individuals or
organizations when in the Secretary's or Deputy Secretary's judgment
such release would serve a useful purpose.
[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.502 Disclosure of the amount of monetary benefits.
The monthly rate of pension, compensation, dependency and indemnity
compensation, retirement pay, subsistence allowance, or educational
assistance allowance of any beneficiary shall be made known to any
person who applies for such information.
[32 FR 10848, July 25, 1967]
Sec. 1.503 Disclosure of information to a veteran or his or her duly authorized representative as to matters concerning the veteran alone.
Information may be disclosed to a veteran or his or her duly
authorized
[[Page 37]]
representative as to matters concerning himself or herself alone when
such disclosure would not be injurious to the physical or mental health
of the veteran. If the veteran be deceased, matters concerning him or
her may be disclosed to his widow, children, or next of kin if such
disclosure will not be injurious to the physical or mental health of the
person in whose behalf information is sought or cause repugnance or
resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.504 Disclosure of information to a widow, child, or other claimant.
Information may be disclosed to a widow, widower, child, or other
dependent parent or other claimant, or the duly authorized
representative of any of these persons as to matters concerning such
person alone when such disclosure will not be injurious to the physical
or mental health of the person to whom the inquiry relates. If the
person concerning whom the information is sought is deceased, matters
concerning such person may be disclosed to the next of kin if the
disclosures will not be injurious to the physical or mental health of
the person in whose behalf the information is sought or cause repugnance
or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.505 Genealogy.
Information of a genealogical nature when its disclosure will not be
detrimental to the memory of the veteran and not prejudicial, so far as
may be apparent, to the interests of any living person or to the
interests of the Government may be released by the Department of
Veterans Affairs or in the case of inactive records may be released by
the Archivist of the United States if in the Archivist's custody.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.506 Disclosure of records to Federal Government departments, State unemployment compensation agencies, and the Office of Servicemen's Group Life
Insurance.
(a) All records or documents required for official purposes by any
department or other agency of the U.S. Government or any state
unemployment compensation agency acting in an official capacity for the
Department of Veterans Affairs shall be furnished in response to an
official request, written, or oral, from such department or agency. If
the requesting department or agency does not indicate the purpose for
which the records or documents are requested and there is doubt as to
whether they are to be used for official purposes, the requesting
department or agency will be asked to specify the purpose for which they
are to be used.
(b) The Chief Benefits Director, Director of Insurance Service, or
designee of either in Central Office, is authorized to release
information to OSGLI (Office of Servicemen's Group Life Insurance) for
the purpose of aiding in the settlement of a particular insurance case.
[33 FR 2994, Feb. 15, 1968]
Sec. 1.507 Disclosures to members of Congress.
Members of Congress shall be furnished in their official capacity in
any case such information contained in the Department of Veterans
Affairs files as may be requested for official use. However, in any
unusual case, the request will be presented to the Secretary, Deputy
Secretary, or staff or administration head for personal action. When the
requested information is of a type which may not be furnished a
claimant, the member of Congress shall be advised that the information
is furnished to him or her confidentially in his official capacity and
should be so treated by him or her. (See 38 U.S.C. 5701.) Information
concerning the beneficiary designation of a United States Government
Life Insurance or National Service Life Insurance policy is deemed
[[Page 38]]
confidential and privileged and during the insured's lifetime shall not
be disclosed to anyone other than the insured or his or her duly
appointed fiduciary unless the insured or the fiduciary authorizes the
release of such information.
[32 FR 10848, July 25, 1967]
Sec. 1.508 Disclosure in cases where claimants are charged with or convicted of criminal offenses.
(a) Where incompetent claimants are charged with, or convicted of,
offenses other than those growing out of their relationship with the
Department of Veterans Affairs and in which it is desired to disclose
information from the files and records of the Department of Veterans
Affairs, the Regional Counsel, Chief Benefits Director, Veterans
Benefits Administration, or the General Counsel if the General Counsel
deems it necessary and proper, may disclose to the court having
jurisdiction so much of the information from the files and records of
the Department of Veterans Affairs relating to the mental condition of
such beneficiaries, the same to be available as evidence, as may be
necessary to show the mental condition of the accused and the time of
its onset. This provision, however, does not alter the general procedure
for handling offenses growing out of relations with the Department of
Veterans Affairs.
(b) When desired by a U.S. district court, the Regional Counsel or
the General Counsel may supply information as to whether any person
charged with crime served in the military or naval service of the United
States and whether the Department of Veterans Affairs has a file on such
person. If the file is desired either by the court or by the prosecution
or defense, it may be produced only in accord with Secs. 1.501 through
1.526.
[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967;
54 FR 34980, Aug. 23, 1989]
Sec. 1.509 Disclosure to courts in proceedings in the nature of an inquest.
The Chief Benefits Director, Veterans Benefits Administration,
Regional Counsels, and facility heads are authorized to make disclosures
to courts of competent jurisdiction of such files, records, reports, and
other documents as are necessary and proper evidence in proceedings in
the nature of an inquest into the mental competency of claimants and
other proceedings incident to the appointment and discharge of
guardians, curators, or conservators to any court having jurisdiction of
such fiduciaries in all matters of appointment, discharge, or accounting
in such courts.
[32 FR 10848, July 25, 1967]
Sec. 1.510 Disclosure to insurance companies cooperating with the Department of Justice in the defense of insurance suits against the United States.
Copies of records from the files of the Department of Veterans
Affairs will, in the event of litigation involving commercial insurance
policies issued by an insurance company cooperating with the Department
of Justice in defense of insurance suits against the United States, be
furnished to such companies without charge, provided the claimant or his
or her duly authorized representative has authorized the release of the
information contained in such records. If the release of information is
not authorized in writing by the claimant or his or her duly authorized
representative, information contained in the files may be furnished to
such company if to withhold same would tend to permit the accomplishment
of a fraud or miscarriage of justice. However, before such information
may be released without the consent of the claimant, the request
therefor must be accompanied by an affidavit of the representative of
the insurance company, setting forth that litigation is pending, the
character of the suit, and the purpose for which the information desired
is to be used. If such information is to be used adversely to the
claimant, the affidavit must set forth facts from which it may be
determined by the General Counsel or Regional Counsel whether the
furnishing of the information is necessary to prevent the perpetration
of a fraud or other injustice. The averments contained in such affidavit
should be considered in connection with the facts shown by the
claimant's file, and, if
[[Page 39]]
such consideration shows the disclosure of the record is necessary and
proper to prevent a fraud or other injustice, information as to the
contents thereof may be furnished to the insurance company or copies of
the records may be furnished to the court, workmen's compensation, or
similar board in which the litigation is pending upon receipt of a
subpoena duces tecum addressed to the Secretary of Veterans Affairs, or
the head of the office in which the records desired are located. In the
event the subpoena requires the production of the file, as distinguished
from the copies of the records, no expense to the Department of Veterans
Affairs may be involved in complying therewith, and arrangements must be
made with the representative of the insurance company causing the
issuance of the subpoena to insure submission of the file to the court
without expense to the Department of Veterans Affairs.
[32 FR 10848, July 25, 1967]
Sec. 1.511 Disclosure of claimant records in connection with judicial proceedings generally.
(a)(1) Where a suit (or legal proceeding) has been threatened or
instituted against the Government, or a prosecution against a claimant
has been instituted or is being contemplated, the request of the
claimant or his or her duly authorized representative for information,
documents, reports, etc., shall be acted upon by the General Counsel in
Central Office, or the Regional Counsel for the field facility, who
shall determine the action to be taken with respect thereto. Where the
records have been sent to the Department of Justice in connection with
any such suit (or legal proceeding), the request will be referred to the
Department of Justice, Washington, DC, through the office of the General
Counsel, for attention. Where the records have been sent to an Assistant
U.S. Attorney, the request will be referred by the appropriate Regional
Counsel to the Assistant U.S. Attorney. In all other cases where copies
of documents or records are desired by or on behalf of parties to a suit
(or legal proceeding), whether in a Federal court or any other, such
copies shall be disclosed as provided in paragraphs (b) and (c) of this
section where the request is accompanied by court process, or paragraph
(e) of this section where the request is not accompanied by court
process. A court process, such as a court order or subpoena duces tecum
should be addressed to either the Secretary of Veterans Affairs or to
the head of the field facility at which the records desired are located.
The determination as to the action to be taken upon any request for the
disclosure of claimant records received in this class of cases shall be
made by the component having jurisdiction over the subject matter in
Central Office, or the division having jurisdiction over the subject
matter in the field facility, except in those cases in which
representatives of the component or division have determined that the
records desired are to be used adversely to the claimant, in which event
the process will be referred to the General Counsel in Central Office or
to the Regional Counsel for the field facility for disposition.
(2) Where a claim under the provisions of the Federal Tort Claims
Act has been filed, or where such a claim can reasonably be anticipated,
no information, documents, reports, etc., will be disclosed except
through the Regional Counsel having jurisdiction, who will limit the
disclosure of information to that which would be available under
discovery proceedings, if the matter were in litigation. Any other
information may be disclosed only after concurrence in such disclosure
is provided by the General Counsel.
(b) Disclosures in response to Federal court process.--(1) Court
order. Except for drug and alcohol abuse, human immunodeficiency virus
and sickle cell anemia treatment records, which are protected under 38
U.S.C. 7332, where the records sought are maintained in a VA Privacy Act
system of records, and are retrieved by the name or other personal
identifier of a living claimant who is a citizen of the United States or
an alien lawfully admitted for permanent residence, a Federal court
order is the process necessary for the disclosure of such records. Upon
receipt of a Federal court order directing disclosure of claimant
records, such records will be disclosed. Disclosure of records protected
under 38 U.S.C. 7332 will be made
[[Page 40]]
in accordance with provisions of paragraph (g) of this section.
(2) Subpoena. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a claimant, a subpoena is not
sufficient authority for the disclosure of such records and such records
will not be disclosed, unless the claimant is deceased, or either is not
a citizen of the United States, or is an alien not lawfully admitted for
permanent residence. Where one of these exceptions applies, upon receipt
of a Federal court subpoena, such records will be disclosed.
Additionally, where the subpoena is accompanied by authorization from
the claimant, disclosure will be made. Regarding the disclosure of
medical records pertaining to drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment, a subpoena is
insufficient for such disclosure. Specific provisions for the disclosure
of these records are set forth in paragraph (g) of this section.
(3) A disclosure of records in response to the receipt of a Federal
court process will be made to those individuals designated in the
process to receive such records, or to the court from which the process
issued. Where original records are produced, they must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if offered and received in evidence, permission should be
obtained to substitute a copy so that the original may remain intact in
the record. Where a court process is issued by or on behalf of a party
litigant other than the United States, such party litigant must prepay
the costs of copies in accordance with fees prescribed by Sec. 1.526(i)
and any other costs incident to producing the records.
(c) Disclosures in response to state or local court processs.--(1)
State or local court order. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a living claimant who is a
citizen of the United States or an alien lawfully admitted for permanent
residence, a State or local court order is the process necessary for
disclosure of such records. Upon receipt of a State or local court order
directing disclosure of claimant records, disclosure of such records
will be made in accordance with the provisions set forth in paragraph
(c)(3) of this section. Disclosure of records protected under 38 U.S.C.
7332 will be made in accordance with provisions of paragraph (g) of this
section.
(2) State or local court subpoena. Except for drug and alcohol
abuse, human immunodeficiency virus and sickle cell anemia treatment
records, which are protected under 38 U.S.C. 7332, where the records
sought are maintained in a VA Privacy Act system of records, and are
retrieved by the name or other personal identifier of a claimant, a
subpoena is not sufficient authority for disclosure of such records and
such records will not be disclosed unless the claimant is deceased, or,
either is not a citizen of the United States, or is an alien not
lawfully admitted for permanent residence. Where one of these exceptions
applies, upon receipt of a State or local court subpoena directing
disclosure of claimant records, disclosure of such records will be made
in accordance with the provisions set forth in paragraph (c)(3), of this
section. Regarding the disclosure of 7332 records, a subpoena is
insufficient for such disclosure. Specific provisions for the disclosure
of these records are set forth in paragraph (g) of this section.
(3) Where the disclosure provisions of paragraph (c) (1) or (2) of
this section apply, disclosure will be made as follows:
(i) When the process presented is accompanied by authority from the
claimant; or,
(ii) In the absence of claimant disclosure authority, the Regional
Counsel having jurisdiction must determine whether the disclosure of the
records is necessary to prevent the perpetration of fraud or other
injustice in the matter in question. To make such a determination, the
Regional Counsel may
[[Page 41]]
require such additional documentation, e.g., affidavit, letter of
explanation, or such other documentation which would detail the need for
such disclosure, set forth the character of the pending suit, and the
purpose for which the documents or records sought are to be used as
evidence. The claimant's record may also be considered in the making of
such determination. Where a court process is received, and the Regional
Counsel finds that additional documentation will be needed to make the
foregoing determination, the Regional Counsel, or other employee having
reasonable knowledge of the requirements of this regulation, shall
contact the person causing the issuance of such court process, and
advise that person of the need for additional documentation. Where a
court appearance is appropriate, and the Regional Counsel has found that
there is an insufficient basis upon which to warrant a disclosure of the
requested information, the Regional Counsel, or other employee having
reasonable knowledge of the requirement of this regulation and having
consulted with the Regional Counsel, shall appear in court and advise
the court that VA records are confidential and privileged and may be
disclosed only in accordance with applicable Federal regulations, and to
further advise the court of such regulatory requirements and how they
have not been satisified. Where indicated, the Regional Counsel will
take appropriate action to have the matter of disclosure of the affected
records removed to Federal court.
(4) Any disclosure of records in response to the receipt of State or
local court process will be made to those individuals designated in the
process to receive such records, or to the court from which such process
issued. Payment of the fees as prescribed by Sec. 1.526(i), as well as
any other cost incident to producing the records, must first be
deposited with the Department of Veterans Affairs by the party who
caused the process to be issued. The original records must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if there is an offer and admission of any record or
document contained therein, permission should be obtained to substitute
a copy so that the original may remain intact in the record.
(d) Notice requirements where disclosures are made pursuant to court
process. Whenever a disclosure of Privacy Act protected records is made
in response to the process of a Federal, State, or local court, the
custodian of the records disclosed will make reasonable efforts to
notify the subject of such records that such subject's records were
disclosed to another person under compulsory legal process. Such notice
should be accomplished when the process compelling disclosure becomes a
matter of public record. Generally, a notice sent to the last known
address of the subject would be sufficient to comply with this
requirement.
(e) Disclosures in response to requests when not accompanied by
court process. Requests received from attorneys or others for copies of
records for use in suits in which the Government is not involved, not
accompanied by a court process, will be handled by the component or
division having jurisdiction over the subject matter. If the request can
be complied with under Sec. 1.503 or Sec. 1.504, and under the Privacy
Act (to the extent that such records are protected by the Privacy Act),
the records requested will be disclosed upon receipt of the required
fee. If, however, the records cannot be furnished under such authority,
the applicant will be advised of the procedure to obtain copies of
records as set forth in paragraphs (b) and (c) of this section.
(f) Suits by or against the Secretary under 38 U.S.C. 3720. Records
pertaining to the loan guaranteed, insured, or made by the Department of
Veterans Affairs may be made available by the General Counsel or the
Regional Counsel subject to the usual rules of evidence, and where
authorized under the Privacy Act, after clearance with the Department of
Justice or U.S. Attorney if appropriate.
(g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency
virus and sickle cell anemia treatment or related records under court
process. Disclosure of these types of records, which are protected from
unauthorized disclosure under 38 U.S.C. 7332, may be made
[[Page 42]]
only in response to an appropriate order of a court of competent
jurisdiction granted after application showing good cause therefore. In
assessing good cause the court is required to weigh the public interest
and the need for disclosure against the injury to the patient or
subject, to the physician-patient relationship, and to the treatment
services. The court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate
safeguards against unauthorized disclosure. As to a Federal court order
satisfying the requirements of this paragraph, the records will be
disclosed as provided in such order. As to a State or local court order
satisfying the requirements of this subsection, the disclosure of the
records involved is conditioned upon satisfying the provisions set forth
in paragraph (c)(3) of this section. If the aforementioned section is
satisfied, and a disclosure of records is to be forthcoming, the records
will be disclosed as provided in the court order.
(Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C.
7332)
[56 FR 15833, Apr. 18, 1991]
Sec. 1.512 Disclosure of loan guaranty information.
(a) The disclosure of records or information contained in loan
guaranty files is governed by the Freedom of Information Act, 5 U.S.C.
552; the Privacy Act, 5 U.S.C. 552a; the confidentiality provisions of
38 U.S.C. 5701, and the provisions of 38 CFR 1.500-1.584. In addition,
the release of names and addresses and the release of certificates of
reasonable value, appraisal reports, property inspection reports, or
reports of inspection on individual water supply and sewage disposal
systems shall be governed by paragraphs (b), (c), (d), and (e) of this
section.
(b)(1) Upon request, any person is entitled to obtain copies of
certificates of reasonable value, appraisal reports, property inspection
reports, or reports of inspection on individual water supply and sewage
disposal systems provided that the individual identifiers of the
veteran-purchaser(s) or dependents are deleted prior to release of such
documents. However, individual identifiers may be disclosed in
accordance with paragraph (b)(2) of this section. The address of the
property being appraised or inspected shall not be considered an
individual identifier.
(Authority: 38 U.S.C. 5701(a), (c))
(2) Individual identifiers of veteran purchasers or dependents may
be disclosed when disclosure is made to the following:
(i) The individual purchasing the property;
(ii) The current owner of the property;
(iii) The individual that requested the appraisal or report;
(iv) A person or entity which is considering making a loan to an
individual with respect to the property concerned; or
(v) An attorney, real estate broker, or any other agent representing
any of these persons.
(Authority: 38 U.S.C. 5701(c), (h)(2)(D))
(c)(1) The Secretary may release the name, address, or both, and may
release other information relating to the identity of an applicant for
or recipient of a Department of Veterans Affairs-guaranteed, insured, or
direct loan, specially adapted housing grant, loan to finance
acquisition of Department of Veterans Affairs-owned property, release of
liability, or substitution of entitlement to credit reporting agencies,
companies or individuals extending credit, depository institutions,
insurance companies, investors, lenders, employers, landlords, utility
companies and governmental agencies for any of the purposes specified in
paragraph (c)(2) of this section.
(2) A release may be made under paragraph (c)(1) of this section:
(i) To enable such parties to provide the Department of Veterans
Affairs with data which assists in determining the creditworthiness,
credit capacity, income or financial resources of the applicant for or
recipient of loan guaranty administered benefits, or verifying whether
any such data previously received is accurate; or
(ii) To enable the Secretary to offer for sale or other disposition
any loan or installment sale contract.
(Authority: 38 U.S.C. 5701(h)(2)(A), (B), (C))
[[Page 43]]
(d) Upon request, the Secretary may release information relating to
the individual's loan transaction to credit reporting agencies,
companies or individuals extending credit, depository institutions,
insurance companies, investors, lenders, employers, landlords, utility
companies and governmental agencies where necessary in connection with a
transfer of information on the status of a Department of Veterans
Affairs loan account to persons or organizations proposing to extend
credit or render services or other benefits to the borrower in order
that the person or organization may determine whether to extend credit
or render services or other benefits to the borrower. Such releases
shall be made only if the person or organization seeking the information
furnishes the individual's name, address or other information necessary
to identify the individual.
(Authority: 38 U.S.C. 5701(e), (h)(2)(A) and (D))
(e) The Secretary shall maintain information in the loan guaranty
file consisting of the date, notice and purpose of each disclosure, and
the name and address of the person to whom the disclosure is made from
the loan guaranty files.
(Authority: 38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))
[47 FR 11279, Mar. 16, 1982]
Sec. 1.513 Disclosure of information contained in Armed Forces service and related medical records in Department of Veterans Affairs custody.
(a) Service records. Information received by the Department of
Veterans Affairs from the Departments of the Army, Navy, Air Force, and
the Department of Transportation relative to the military or naval
service of a claimant is furnished solely for the official use of the
Department of Veterans Affairs but such information may be disclosed
under the limitations contained in Secs. 1.501 through 1.526.
(b) Medical records. Information contained in the medical records
(including clinical records and social data) may be released under the
following conditions:
(1) Complete transcript of resume or medical records on request to:
(i) The Department of the Army.
(ii) The Department of the Navy (including naval aviation and United
States Marine Corps).
(iii) The Department of the Air Force.
(iv) The Department of Transportation (Coast Guard).
(v) Selective Service (in case of registrants only).
(vi) Federal or State hospitals or penal institutions when the
veteran is a patient or inmate therein.
(vii) United States Public Health Service, or other governmental or
contract agency in connection with research authorized by, or conducted
for, the Department of Veterans Affairs.
(viii) Registered civilian physicians, on the request of the
individual or his or her legal representative, when required in
connection with the treatment of the veteran. (The transcript or resume
should be accompanied by the statement ``it is expected that the
information contained herein will be treated as confidential, as is
customary in civilian professional medical practice.'')
(ix) The veteran on request, except information contained in the
medical record which would prove injurious to his or her physical or
mental health.
(x) The next of kin on request of the individual, or legal
representative, when the information may not be disclosed to the veteran
because it will prove injurious to his or her physical or mental health,
and it will not be injurious to the physical or mental health of the
next of kin or cause repugnance or resentment toward the veteran; and
directly to the next of kin, or legal representative, when the veteran
has been declared to be insane or is dead.
(xi) Health and social agencies, on the authority of the veteran or
his or her duly authorized representative.
(2) In addition to the authorizations in paragraph (b)(1) of this
section, the Department of Justice, the Department of the Treasury, and
the U.S. Postal Service may, on request, be given pertinent information
from medical records for use in connection with investigations conducted
by these departments. Each such request shall be
[[Page 44]]
considered on its merits, and the information released should be the
minimum necessary in connection with the investigation conducted by
these departments.
(3) Compliance with court orders calling for the production of
medical records in connection with litigation or criminal prosecutions
will be effected in accordance with Sec. 1.511.
[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60
FR 63938, Dec. 13, 1995]
Sec. 1.514 Disclosure to private physicians and hospitals other than Department of Veterans Affairs.
(a) When a beneficiary elects to obtain medical attention as a
private patient from a private practitioner or in a medical center other
than a Department of Veterans Affairs hospital, there may be disclosed
to such private practitioner or head of such medical center (Federal,
State, municipal, or private), such information as to the medical
history, diagnosis, findings, or treatment as is requested, including
the loan of original X-ray films, whether Department of Veterans Affairs
clinical X-rays or service department entrance and separation X-rays,
provided there is also submitted a written authorization from the
beneficiary or his or her duly authorized representative. The
information will be supplied without charge directly to the private
physician or medical center head and not through the beneficiary or
representative. In forwarding this information, it will be accompanied
by the stipulations that it is released with consent of or on behalf of
the patient and that the information will be treated as confidential, as
is customary in civilian professional medical practice.
(b) Such information may be released without charge and without
consent of the patient or his or her duly authorized representative when
a request for such information is received from:
(1) The superintendent of a State hospital for psychotic patients, a
commissioner or head of a State department of mental hygiene, or head of
a State, county, or city health department; or
(2) Any fee basis physician or institution in connection with
authorized treatment of the veteran as a Department of Veterans Affairs
beneficiary; or
(3) Any physician or medical installation treating the veteran under
emergency conditions.
[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.514a Disclosure to private psychologists.
When a beneficiary elects to obtain therapy or analysis as a private
patient from a private psychologist, such information in the medical
record as may be pertinent may be released. Generally, only information
developed and documented by Department of Veterans Affairs psychologists
will be considered pertinent, although other information from the
medical record may be released if it is determined to be pertinent and
will serve a useful purpose to the private psychologist in rendering his
or her services. Information will be released under this section upon
receipt of the written authorization of the beneficiary or his or her
duly authorized representative. Information will be forwarded to private
psychologists directly, not through the beneficiary or representative,
without charge and with the stipulation that it is released with consent
of or on behalf of the patient and must be treated as confidential as is
customary in regular professional practice.
[34 FR 13368, Aug. 19, 1969]
Sec. 1.515 To commanding officers of State soldiers' homes.
When a request is received in a Department of Veterans Affairs
regional office, center, or medical center from the commanding officer
of a State soldiers' home for information other than information
relative to the character of the discharge from a Department of Veterans
Affairs center or medical center concerning a veteran formerly domiciled
or hospitalized therein, the provisions of Sec. 1.500 are applicable,
and no disclosure will be made unless the request is accompanied by the
authorization outlined in Sec. 1.503. However, station heads, upon
receipt of a request from the commanding officer of a State soldiers'
home for the character of the discharge of a veteran from a period of
[[Page 45]]
hospital treatment or domiciliary care as a beneficiary of the
Department of Veterans Affairs, will comply with the request,
restricting the information disclosed solely to the character of the
veteran's discharge from such treatment or care. Such information will
be disclosed only upon receipt of a specific request therefor from the
commanding officer of a State soldiers' home.
[30 FR 6435, May 8, 1965]
Sec. 1.516 Disclosure of information to undertaker concerning burial of a deceased veteran.
When an undertaker requests information believed to be necessary in
connection with the burial of a deceased veteran, such as the name and
address of the beneficiary of the veteran's Government insurance policy,
name and address of the next of kin, rank or grade of veteran and
organization in which he or she served, character of the veteran's
discharge, or date and place of birth of the veteran, and it appears
that the undertaker is holding the body awaiting receipt of the
information requested, the undertaker, in such instances, may be
considered the duly authorized representative of the deceased veteran
for the purpose of obtaining said information. In ordinary cases,
however, the undertaker will be advised that information concerning the
beneficiary of a Government insurance policy is confidential and cannot
be disclosed; the beneficiary will be advised immediately of the
inquiry, and the furnishing of the desired information will be
discretionary with the beneficiary. In no case will the undertaker be
informed of the net amount due under the policy or furnished information
not specifically mentioned in this paragraph.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.517 Disclosure of vocational rehabilitation and education information to educational institutions cooperating with the Department of Veterans Affairs.
Requests from educational institutions and agencies cooperating with
the Department of Veterans Affairs in the vocational rehabilitation and
education of veterans for the use of vocational rehabilitation and
education records for research studies will be forwarded to central
office with the facility head's recommendation for review by the Chief
Benefits Director. Where the request to conduct a research study is
approved by the Chief Benefits Director, the facility head is authorized
by this section to release information for such studies from vocational
rehabilitation and education records as required: Provided, however,
That any data or information obtained shall not be published without
prior approval of the Chief Benefits Director and that data contained in
published material shall not identify any individual veteran.
[30 FR 6435, May 8, 1965]
Sec. 1.518 Addresses of claimants.
(a) It is the general policy of the Department of Veterans Affairs
to refuse to furnish addresses from its records to persons who desire
such information for debt collection, canvassing, harassing or for
propaganda purposes.
(b) The address of a Department of Veterans Affairs claimant as
shown by Department of Veterans Affairs files may be furnished to:
(1) Duly constituted police or court officials upon official request
and the submission of a certified copy either of the indictment returned
against the claimant or of the warrant issued for his or her arrest.
(2) Police, other law enforcement agencies, or Federal, State,
county, or city welfare agencies upon official written request showing
that the purpose of the request is to locate a parent who has deserted
his or her child or children and that other reasonable efforts to obtain
an address have failed. The address will not be released when such
disclosure would be prejudicial to the mental or physical health of the
claimant. When an address is furnished it will be accompanied by the
stipulation that it is furnished on a confidential basis and may not be
disclosed to any other individual or agency.
(c) When an address is requested that may not be furnished under
Secs. 1.500 through 1.526, the person making the request will be
informed that a letter, or in those cases involving judicial actions,
the process or notice in judicial proceedings, enclosed in an unsealed
[[Page 46]]
envelope showing no return address, with the name of the addressee
thereon, and bearing sufficient postage to cover mailing costs will be
forwarded by the Department of Veterans Affairs. If a request indicates
that judicial action is involved in which a process or notice in
judicial proceedings is required to be forwarded, the Department of
Veterans Affairs will inform the person who requests the forwarding of
such a document that the envelope must bear sufficient postage to cover
costs of mailing and certified or registered mailing fees, including
cost of obtaining receipt for the certified or registered mail when
transmission by this type special mail is desired. At the time the
letter, process, or notice in judicial proceedings is forwarded, the
facility's return address will be placed on the envelope. When the
receipt for certified or registered mail or the undelivered envelope is
returned to the Department of Veterans Affairs, the original sender will
be notified thereof: However, the receipt or the envelope will be
retained by the Department of Veterans Affairs. This provision will be
applicable only when it does not interfere unduly with the functions of
the Service or division concerned. In no event will letters be forwarded
to aid in the collection of debts or for the purpose of canvassing,
harassing, or propaganda. Neither will a letter be forwarded if the
contents could be harmful to the physical or mental health of the
recipient.
(d) Subject to the conditions set forth in Sec. 1.922, the
Department of Veterans Affairs may disclose to consumer reporting
agencies information contained in a debtor's claims folder. Such
information may include the debtor's name and/or address, Department of
Veterans Affairs file number, Social Security number, and date of birth.
(Authority: 38 U.S.C. 5701(g))
[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at
46 FR 62059, Dec. 22, 1981]
Sec. 1.519 Lists of names and addresses.
(a) Any organization wanting a list of names and addresses of
present or former personnel of the armed services and their dependents
from the Department of Veterans Affairs must make written application to
the Department of Veterans Affairs Controller, except lists of
educationally disadvantaged veterans should be requested from the
Director of the nearest regional office. The application must:
(1) Clearly identify the type or category of names and addresses
sought;
(2) Furnish proof satisfactory to the Department of Veterans Affairs
that the organization seeking the list is a ``nonprofit organization.''
Normally, evidence establishing that the organization is exempt from
taxation in accordance with the provisions of 26 U.S.C. 501 or is a
governmental body or institution will be accepted as satisfying this
criteria;
(3) Contain a statement clearly setting forth the purpose for which
the list is sought, the programs and the resources the organization
proposes to devote to this purpose, and establish how such purpose is
``directly connected with the conduct of programs and the utilization of
benefits'' under title 38, U.S.C.; and
(4) Contain a certification that the organization, and all members
thereof who will have access to the list, are aware of the penalty
provisions of 38 U.S.C. 5701(f) and will not use the list for any
purpose other than that stated in the application.
(b) If the Director of the regional office concerned finds that the
organization requesting the list of names and addresses of educationally
disadvantaged veterans is a nonprofit organization and operates an
approved program of special secondary, remedial, preparatory or other
educational or supplementary assistance to veterans as provided under
subchapter V, title 38 U.S.C., then he or she may authorize the release
of such names and addresses to the organization requesting them.
(c) The Associate Deputy Assistant Secretary for Information
Resources Management, with the concurrence of the General Counsel, is
authorized to release lists of names and addresses to organizations
which have applied for such lists in accordance with paragraph (a) of
this section if he or she finds that the purpose for which the
organization desires the names and addresses is directly connected with
the
[[Page 47]]
conduct of programs and the utilization of benefits under title 38
U.S.C. Lists of names and addresses authorized to be released pursuant
to this paragraph shall not duplicate lists released to other elements,
segments, or chapters of the same organization.
(d) If the list requested is one that the Department of Veterans
Affairs has previously compiled or created, in the same format, to carry
out one or more of its basic program responsibilities and it is
determined that it can be released, the list may be furnished without
charge. For other types of lists, a charge will be made in accordance
with the provisions of Sec. 1.526.
(e) Upon denial of a request, the Department of Veterans Affairs
Controller or Regional Office Director will inform the requester in
writing of the denial and the reasons therefor and advise the
organization that it may appeal the denial to the General Counsel. In
each instance of a denial of a request, the denial and the reasons
therefor will be made a matter of record.
(f) Section 5701(f), title 38 U.S.C., provides that any
organization, or member thereof, which uses the names and addresses
furnished it for any purpose other than one directly connected with the
conduct of programs and the utilization of benefits under title 38
U.S.C., shall be fined not more than $500 in the case of the first
offense and not more than $5,000 in the case of the subsequent offenses.
Any instance in which there is evidence of a violation of these penal
provisions will be reported in accordance with Sec. 14.560.
(Approved by the Office of Management and Budget under control number
2900-0438)
[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981;
49 FR 32848, Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]
Sec. 1.520 Confidentiality of social data.
Persons having access to social data will be conscious of the fact
that the family, acquaintances, and even the veteran have been willing
to reveal these data only on the promise that they will be held in
complete confidence. There will be avoided direct, ill-considered
references which may jeopardize the personal safety of these individuals
and the relationship existing among them, the patient, and the social
worker, or may destroy their mutual confidence and influence, rendering
it impossible to secure further cooperation from these individuals and
agencies. Physicians in talking with beneficiaries will not quote these
data directly but will regard them as indicating possible directions
toward which they may wish to guide the patient's self-revelations
without reproaching the patient for his or her behavior or arousing
natural curiosity or suspicion regarding any informant's statement. The
representatives of service organizations and duly authorized
representatives of veterans will be especially cautioned as to their
grave responsibility in this connection.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.521 Special restrictions concerning social security records.
Information received from the Social Security Administration may be
filed in the veteran's claims folder without special provisions. Such
information will be deemed privileged and may not be released by the
Department of Veterans Affairs except that information concerning the
amount of social security benefits paid to a claimant or the amount of
social security tax contributions made by the claimant may be disclosed
to the claimant or his or her duly authorized representative. Any
request from outside the Department of Veterans Affairs for other social
security information will be referred to the Social Security
Administration for such action as they deem proper.
[27 FR 9599, Sept. 28, 1962]
Sec. 1.522 Determination of the question as to whether disclosure will be prejudicial to the mental or physical health of claimant.
Determination of the question when disclosure of information from
the files, records, and reports will be prejudicial to the mental or
physical health of the claimant, beneficiary, or other person in whose
behalf information is sought, will be made by the Chief Medical
Director; Chief of Staff of a hospital; or the Director of an outpatient
clinic.
[33 FR 19009, Dec. 20, 1968]
[[Page 48]]
Sec. 1.523 [Reserved]
Sec. 1.524 Persons authorized to represent claimants.
A duly authorized representative will be:
(a) Any person authorized in writing by the claimant to act for him
or her,
(b) An attorney who has filed the declaration required by
Sec. 14.629(b)(1) of this chapter, or
(c) His or her legally constituted fiduciary, if the claimant is
incompetent. Where for proper reasons no legally constituted fiduciary
has been or will be appointed, his or her spouse, his or her children,
or, if the claimant is unmarried, either of his or her parents shall be
recognized as the fiduciary of the claimant.
[33 FR 6536, Apr. 30, 1968]
Sec. 1.525 Inspection of records by or disclosure of information to recognized representatives of organizations and recognized attorneys.
(a)(1) The accredited representatives of recognized organizations
(Sec. 14.627 of this chapter) holding appropriate power of attorney and
recognized attorneys (Sec. 14.629(b) of this chapter) with the written
authorization of the claimant may, subject to the restrictions imposed
by paragraph (a)(2) of this section, inspect the claims, insurance and
allied folders of any claimant upon the condition that only such
information contained therein as may be properly disclosed under
Secs. 1.500 through 1.526 will be disclosed by him or her to the
claimant or, if the claimant is incompetent, to his or her legally
constituted fiduciary. Under the same restrictions, it is permissible to
release information from and permit inspection of loan guaranty folders
in which a request for a waiver of the debt of a veteran or his or her
spouse has been received, or where there has been a denial of basic
eligibility for loan guaranty benefits. All other information in the
files shall be treated as confidential and will be used only in
determining the status of the cases inspected or in connection with the
presentation to officials of the Department of Veterans Affairs of the
claim of the claimant. The heads of field facilities and the directors
of the services concerned in Central Office will each designate a
responsible officer to whom requests for all files must be made, except
that managers of centers with insurance activities will designate two
responsible officials, recommended by the division chiefs concerned, one
responsible for claims and allied folders and the other for insurance
files. The term claimant as used in this paragraph includes insureds.
(2) In the case of a living veteran a representative acting under a
power of attorney from any person not acting on behalf of the veteran
will not be permitted to review the records of the veteran or be
furnished any information therefrom to which the person is not entitled,
i.e., information not relating to such person alone. Powers of attorney
submitted by the other person will be considered ``Limited'' and will be
so noted when associated with the veteran's records. The provisions of
this subparagraph are also applicable to recognized attorneys and the
requisite declarations filed by them.
(3) When power of attorney does not obtain, the accredited
representative will explain to the designated officer of the Department
of Veterans Affairs the reason for requesting information from the file,
and the information will be made available only when in the opinion of
the designated officer it is justified; in no circumstances will such
representatives be allowed to inspect the file; in such cases a contact
report will be made out and attached to the case, outlining the reasons
which justify the verbal or written release of the information to the
accredited representative.
(4) In any case where there is an unrevoked power of attorney or
declaration of representation, no persons or organizations other than
the one named in such document shall be afforded information from the
file except under the conditions set forth in Sec. 14.629(b)(2) of this
chapter. When any claimant has filed notice with the Department of
Veterans Affairs that he or she does not want his or her file inspected,
such file will not be made available for inspection.
[[Page 49]]
(b)(1) Inspection of folders by accredited representatives or
recognized attorneys holding a written authorization where such cases
are being processed shall be in space assigned for such inspection.
Otherwise station heads may permit inspection of folders at the desks of
the accredited representatives, in the office(s) which they regularly
occupy.
(2) An insured or after maturity of the insurance by death of the
insured, the beneficiary, may authorize the release to a third person of
such insurance information as the insured or the beneficiary would be
entitled to receive, provided there is submitted to the Department of
Veterans Affairs, a specific authorization in writing for this purpose.
(3) Unless otherwise authorized by the insured or the beneficiary,
as the case may be, such authorized representative, recognized attorney
or accredited representative shall not release information as to the
designated beneficiary to anyone other than the insured or to the
beneficiary after death of the insured. Otherwise, information in the
insurance file shall be subject to the provisions of Secs. 1.500 through
1.526.
(4) Clinical records and medical files, including files for
outpatient treatment, may be inspected by accredited representatives or
recognized attorneys holding a written authorization only to the extent
such records or parts thereof are incorporated in the claims folder, or
are made available to Department of Veterans Affairs personnel in the
adjudication of the claim. Records or data in clinical or medical files
which are not incorporated in the claims folder or which are not made
available to Department of Veterans Affairs personnel for adjudication
purposes will not be inspected by anyone other than those employees of
the Department of Veterans Affairs whose duties require same for the
purpose of clinical diagnosis or medical treatment.
(5) Under no circumstances shall any paper be removed from a file,
except by a Department of Veterans Affairs employee, for purpose of
having an authorized copy made. Copying of material in a file shall not
be permitted except in connection with the performance of authorized
functions under the power of attorney or requisite declaration of a
recognized attorney.
(6) In any case involving litigation against the Government, whether
contemplated or initiated, inspection, subject to the foregoing, shall
be within the discretion of the General Counsel or Regional Counsel,
except that in insurance suits under 38 U.S.C. 1975, 1984, inspection
shall be within the discretion of the official having jurisdiction of
the claim. Files in such cases may be released to the Department of
Justice, but close liaison will be maintained to insure their return
intact upon termination of the litigation.
(c) Facility heads and the directors of the services concerned in
central office will be responsible for the administrative compliance
with and accomplishment of the foregoing within their jurisdiction, and
any violations of the prescribed conditions for inspection of files or
release of information therefrom will be brought to the immediate
attention of the Secretary.
(d) Any person holding power of attorney, a recognized attorney who
has filed the requisite declaration, or the accredited representative of
a recognized organization holding power of attorney shall be supplied
with a copy of each notice to the claimant respecting the adjudication
of the claim. If a claimant dies before action on the claim is
completed, the person or organization holding power of attorney or the
attorney who has filed the requisite declaration may continue to act
until the action is completed except where the power of attorney or
requisite declaration was filed on behalf of a dependent.
(e) When in developing a claim the accredited representative of a
recognized organization finds it necessary to call upon a local
representative to assemble information or evidence, he or she may make
such disclosures to the local representative as the circumstances of the
case may warrant, provided the power of attorney to the recognized
organization contains an
[[Page 50]]
authorization permitting such disclosure.
[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32
FR 10849, July 25, 1967; 33 FR 6536, Apr. 30, 1968]
Sec. 1.526 Copies of records and papers.
(a) Any person desiring a copy of any record or document in the
custody of the Department of Veterans Affairs, which is subject to be
furnished under Secs. 1.501 through 1.526, must make written application
for such copy to the Department of Veterans Affairs installation having
custody of the subject matter desired, stating specifically: (1) The
particular record or document the copy of which is desired and whether
certified and validated, or uncertified, (2) the purpose for which such
copy is desired to be used.
(b) The types of services provided by the Department of Veterans
Affairs for which fees will be charged are identified in paragraph (i)
of this section.
(c) This section applies to the services furnished in paragraph (b)
of this section when rendered to members of the public by the Department
of Veterans Affairs. It does not apply to such services when rendered to
or for other agencies or branches of the Federal Government, or State
and local governments when furnishing the service will help to
accomplish an objective of the Department of Veterans Affairs, or when
performed in connection with a special research study or compilation
when the party requesting such services is charged an amount for the
whole job.
(d) When copies of a record or document are furnished under
Secs. 1.506, 1.507, 1.510, and 1.514, such copies shall be supplied
without charge. Moreover, free service may be provided, to the extent of
one copy, to persons who have been required to furnish original
documents for retention by the Department of Veterans Affairs.
(e) The following are circumstances under which services may be
provided free at the discretion of facility heads or responsible Central
Office officials:
(1) When requested by a court, when the copy will serve as a
substitute for personal court appearance of a Government witness.
(2) When furnishing the service free saves costs or yields income
equal to the direct costs of the agency providing the service. This
includes cases where the fee for the service would be included in a
billing against the Government (for example, in cost-type contracts, or
in the case of private physicians who are treating Government
beneficiaries at Government expense).
(3) When a service is occasional and incidental, not of a type that
is requested often, and if it is administratively determined that a fee
would be inappropriate in such an occasional case.
(f) When information, statistics, or reports are released or
furnished under Sec. 1.501 or Sec. 1.519, the fee charge, if any, will
be determined upon the merits of each individual application.
(g) In those cases where it is determined that a fee shall be
charged, the applicant will be advised to deposit the amount of the
lawful charge for the copy desired. The amount of such charge will be
determined in accordance with the schedule of fees prescribed in
paragraph (i) of this section. The desired copy will not be delivered,
except under court subpoena, until the full amount of the lawful charge
is deposited. Any excess deposit of $1 or more over the lawful charge
will be returned to the applicant. Excess deposits of less than $1 will
be returned upon request. When a deposit is received with an
application, such a deposit will be returned to the applicant should the
application be denied.
(h) Copies of reports or records received from other Government
departments or agencies will not be furnished except as provided in
Sec. 1.513.
(i) Fees to be charged.
(1) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of document by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/2\"
x 11"; 8\1/2\" x 14"; 11" x
14").
[[Page 51]]
(ii) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audiotapes, duplication.
etc.) computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(iii) Duplication of documents by Actual direct cost to the Agency as
any type of reproduction process defined in Sec. 1.555(a)(2) of
not covered by paragraphs (i)(1) this part to the extent that it
(i) and (ii) of this section to pertains to the cost of
produce a copy in a form duplication.
reasonably usable by a requester.
(iv) Providing special information, Actual cost to the Agency including
statistics, reports, drawings, computer and manual search costs,
specifications, lists of names and copying costs, labor, and material
addresses (either in paper or and overhead expenses.
machine readable form), computer
or other machine readable output.
(v) Attestation under the seal of $3.00 per document so certified.
the Agency.
(vi) Providing abstracts or copies $10.00 per request.
of medical and dental records to
insurance companies for other than
litigation purposes.
(vii) Providing files under court Actual direct cost to the Agency.
subpoena.
------------------------------------------------------------------------
(Note.--If VA regularly contracts for duplicating services related to
providing the requested records, such as the duplication of microfilm
or architect's plans and drawings, the contractor fees may be included
in the actual direct cost to the Agency)
(2) Benefit records. When VA benefit records are requested by a VA
beneficiary or applicant for VA benefits, the duplication fee for one
complete set of such records will be waived.
(Authority: 38 U.S.C. 5702(b))
(j) If the copy is to be transmitted by certified or registered
mail, airmail, or special delivery mail, the postal fees therefor shall
be added to the other fees provided in paragraph (i) of this section (or
the order must include postage stamps or stamped return envelopes for
the purpose).
(k) Those Department of Veterans Affairs installations not having
copying equipment are authorized to arrange with the nearest Department
of Veterans Affairs installation having such equipment to make the
necessary authorized copies of records or documents.
(l) Administration, staff office, and field facility heads are
authorized to designate employees to certify copies of records and
papers furnished under the provisions of paragraph (a) of this section.
[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33
FR 9342, June 26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4,
1972; 39 FR 3938, Jan. 31, 1974; 53 FR 10376, Mar. 31, 1988; 54 FR
34980, Aug. 23, 1989]
Sec. 1.527 Administrative review.
(a) Any person may, in the event of a denial of his or her request
to inspect or obtain information from or copies of records within the
purview of Secs. 1.501 through 1.526, appeal such denial. Such appeal,
stating the circumstances of the denial, should be addressed, as
appropriate, to the field facility, administration, or staff office
head.
(b) A denial action not reversed by a field facility,
administration, or staff office head on appeal, will be referred through
normal channels to the General Counsel.
(c) The final agency decision in such appeals will be made by the
General Counsel or the Deputy General Counsel.
[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]
Release of Information From Department of Veterans Affairs Records Other
Than Claimant Records
Note: Sections 1.550 through 1.559 concern the availability and
release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody other than those
pertaining to claims under any of the laws administered by the
Department of Veterans Affairs. As to the release of information from
Department of Veterans Affairs claimant records, see Secs. 1.500 through
1.527. Section 1.550 series implement the provisions of 5 U.S.C. 552.
[40 FR 12656, Mar. 20, 1975]
Authority: Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38
U.S.C. 501.
[[Page 52]]
Sec. 1.550 General.
The Department of Veterans Affairs policy is one of disclosure of
information from agency records to the extent permitted by law. This
includes the release of information which the Department of Veterans
Affairs is authorized to withhold under 5 U.S.C. 552(b) (see Sec. 1.554)
if it is determined: (a) By the Secretary of Veterans Affairs or the
Deputy Secretary that disclosure of such information will serve a useful
purpose or (b) by an administration, staff office, or field facility
head or designee under Sec. 1.556(a) that disclosure will not adversely
affect the proper conduct of official business or constitute an invasion
of personal privacy.
[40 FR 12656, Mar. 20, 1975]
Sec. 1.551 [Reserved]
Sec. 1.552 Public access to information that affects the public when not published in the Federal Register as constructive notice.
(a) All final orders in such actions as entertained by the Contract
Appeals Board, those statements of policy and interpretations adopted by
the Department of Veterans Affairs but not published in the Federal
Register, and administrative manuals and staff instructions that affect
any member of the public, unless promptly published and copies offered
for sale, will be kept currently indexed by the office of primary
program responsibility or the Manager, Administrative Services, as
determined by the Secretary or designee. Such index or indexes or
supplements thereto will be promptly published, quarterly or more
frequently, and distributed (by sale or otherwise) unless the Department
of Veterans Affairs determines by order published in the Federal
Register that publication would be unnecessary and impracticable, in
which case the Department of Veterans Affairs will nonetheless provide
copies of such index or indexes or supplements thereto on request at a
cost not to exceed the direct cost of duplication. Both the index and
the materials indexed as required by this paragraph will be made
available to the public, for inspection and copying. Public reading
facilities for this purpose will be maintained in Department of Veterans
Affairs Central Office and Department of Veterans Affairs field
facilities, open to the public during the normal duty hours of the
office in which located. Orders made in the adjudication of individual
claims under laws administered by the Department of Veterans Affairs are
confidential and privileged by statute (38 U.S.C. 5701) and so are
exempt from this requirement.
(b) The voting records of the Contract Appeals Board will be
maintained in a public reading facility in the Office of the Board in
Central Office and made available to the public upon request.
(c) When publishing or making available to the public any opinion,
order, statement of policy, interpretation, staff manual or instruction
to staff, identifying details will be deleted, and the deletion
justified in writing, to the extent required to prevent a clearly
unwarranted invasion of personal privacy.
(d) No final order, opinion, statement of policy, interpretation,
staff manual or instruction which is issued, adopted, or promulgated
after July 4, 1967, that affects any member of the public may be relied
upon, used, or cited as precedent against any private party unless it
has been indexed and either made available or published as provided in
this section or unless that private party shall have actual and timely
notice of the terms thereof.
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975]
Sec. 1.553 Public access to other reasonably described records.
(a) Except for requests for records which are processed under
Secs. 1.551 and 1.552 of this part, unless otherwise provided for in
title 38, Code of Federal Regulations, all requests for records shall be
processed under paragraph (b) of this section, as well as under any
other VA law or regulation governing access to or confidentiality of
records or information. Records or information customarily furnished to
the public in the regular course of the performance of official duties
may be furnished to the public without reference to paragraph (b) of
this section. To the extent permitted by other laws and regulations, VA
will also consider making
[[Page 53]]
available records which it is permitted to withhold under the FOIA if it
determines that such disclosure could be in the public interest.
(b) Reasonably described records in VA custody, or copies thereof,
other than records made available to the public under provisions of
Secs. 1.551 and 1.552 of this part, or unless otherwise provided for in
title 38, Code of Federal Regulations, requested in accordance with
published rules stating the time, place, fees (if any), and procedures
to be followed, will be made promptly available, except as provided in
Sec. 1.554 of this part, to any person upon request. Such request must
be in writing, over the signature of the requester and must contain a
reasonable description of the record desired so that it may be located
with relative ease. The request should be made to the office concerned
(having jurisdiction of the record desired) or, if not known, to the
Director or Veterans Services Officer in the nearest VA regional office;
the Director, or Chief, Medical Administration Service, or other
responsible official of VA medical facility where most recently treated;
or to the Department of Veterans Affairs Central Office, 810 Vermont
Avenue NW., Washington, DC 20420. Personal contacts should normally be
made during the regular duty hours of the office concerned, which are 8
a.m. to 4:30 p.m. Monday through Friday for VA Central Office and most
field facilites.
(Authority: 5 U.S.C. 552(a)(3))
[53 FR 10377, Mar. 31, 1988]
Sec. 1.553a Time limits for Department of Veterans Affairs response to requests for records.
(a) When a request for records made under Sec. 1.551, Sec. 1.552 or
Sec. 1.553 is received it will be promptly referred for action to the
proper employee designated in accordance with Sec. 1.556 to take initial
action on granting or denying requests to inspect or obtain information
from or copies of the records described.
(b) Any such request will then be promptly evaluated and a
determination made within 10 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of the request whether the
Department of Veterans Affairs will comply with the request. Upon
determination to comply or deny the request the person making the
request will be notified immediately of the determination and the
reasons therefor, and of the right of the person to appeal to the
Secretary of Veterans Affairs any adverse determination. Records to be
furnished will be supplied promptly.
(c) Upon receipt of such an appeal from an adverse determination it
will be evaluated and a further determination made within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after receipt
of the appeal. If on appeal the denial is in whole or in part upheld the
Department of Veterans Affairs will notify the requester of the
provisions for judicial review of this determination. (See Secs. 1.557
and 1.558.)
(d) In unusual circumstances, specifically as follows, the time
limits in paragraphs (b) and (c) of this section may be extended by
written notice to the requester setting forth the reasons for such
extension and the date on which a determination is expected to be
dispatched. The date specified will not result in an extension for more
than 10 working days. Unusual circumstances will be interpreted to mean,
but only to the extent reasonably necessary to the proper processing of
the particular request, as follows:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Department of Veterans Affairs having substantial subject-matter
interest therein.
(e) Pursuant to section 552(a)(6), title 5 U.S.C., any person making
a request to the Department of Veterans Affairs for records under
section 552(a) (1), (2) or (3) (see Secs. 1.551, 1.552 and 1.553) will
be deemed to have exhausted his or her
[[Page 54]]
administrative remedies with respect to such request if the Department
of Veterans Affairs fails to comply with the applicable time limit
provisions of this section. If, however, the Government can show
exceptional circumstances exist and that the Department of Veterans
Affairs is exercising due diligence in responding to the request, the
statute also permits the court to retain jurisdiction and allow the
Department of Veterans Affairs additional time to complete its review of
the records.
(f) Requests for the release of information from files, records,
reports, and other papers and documents in Department of Veterans
Affairs custody pertaining to claims under any of the laws administered
by the Department of Veterans Affairs (covered by Secs. 1.500 through
1.527) may also be initiated under 5 U.S.C. 552. Such requests will also
be evaluated, a determination made within 10 days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of the request
whether the Department of Veterans Affairs will comply with the request,
and the requester notified immediately of the determination and the
reasons therefor, and of the right of the person to appeal to the
Secretary of Veterans Affairs any adverse determination. Records to be
furnished will be supplied promptly.
[40 FR 12657, Mar. 20, 1975]
Sec. 1.554 Exemptions from public access to agency records.
(a) The exemptions in this paragraph constitute authority to
withhold from disclosure certain categories of information in Department
of Veterans Affairs records except that any reasonably segregable
portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under this
paragraph.
(1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of the national
defense or foreign policy, and are in fact properly classified pursuant
to such Executive order.
(2) Related solely to internal Department of Veterans Affairs
personnel rules and practices.
(3) Specifically exempted from disclosure by statute other than 5
U.S.C. 552b, provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from any person and privileged or confidential.
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a private party in litigation with the
Department of Veterans Affairs.
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
[[Page 55]]
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(Authority: 5 U.S.C. 552(b)(7))
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial institutions.
(9) Geological and geophysical information and data (including maps)
concerning wells.
(b) Information in the categories exempted under paragraph (a) of
this section, other than in paragraph (a)(3) which is applicable to
Department of Veterans Affairs claimant records, will be released only
as authorized in Sec. 1.550. The release of information from Department
of Veterans Affairs claimant records will be made only in accordance
with Secs. 1.501 through 1.526.
(c)(1) Whenever a request is made which involves access to records
described in paragraph (a)(7)(i) of this section and
(i) The investigation or proceeding involves a possible violation of
criminal law, and
(ii) There is reason to believe that
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings, the Agency may,
during only such time as that circumstance continues, treat the records
as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the Department may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(Authority: 5 U.S.C. 552(c)(1) and (c)(2))
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975;
42 FR 37976, July 26, 1977; 53 FR 9442, Mar. 23, 1988]
Sec. 1.554a Predisclosure notification procedures for confidential commercial information.
(a) General. During the conduct of its business the Department of
Veterans Affairs (VA) may acquire records which contain confidential
commercial information, as defined in paragraph (b) of this section.
Such records will not be released in response to a Freedom of
Information Act (FOIA) request, except under the provisions of this
section. This section establishes uniform VA procedures for giving
submitters predisclosure notice of requests for their records which
contain confidential commercial information that may be exempt from
disclosure under 38 CFR 1.554(a)(4). These procedures are required by
Executive Order 12600, Predisclosure Notification Procedures for
Confidential Commercial Information, dated June 23, 1987.
(b) Definitions. (1) Confidential commercial information means
records provided to the government by a submitter that arguably contain
material exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552
(b)(4), as implemented by Sec. 1.554 of this part, because disclosure
could reasonably be expected to cause substantial competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information to the government. The term ``submitter''
includes, but is not limited to corporations, State governments, and
foreign governments.
(c) Notification to submitters of confidential commercial
information. When a request is received, for a submitter's record(s), or
information which contains confidential commercial information, and the
request is being processed under the FOIA, 5 U.S.C. 552, the submitter
will be promptly notified in writing of the request when required by
paragraph (d) of this section. The notification will advise the
submitter that a request for its record(s) has been received and is
being processed under the FOIA. The notice will describe the exact
nature of the record(s) requested or will provide to the submitter
copies of the record(s) or portions thereof containing the requested
confidential commercial information. It will also inform the submitter
of the opportunity
[[Page 56]]
to object to the disclosure in writing within 10 working days, and of
the requirements for such a written objection, as described in paragraph
(f) of this section. The notification will be sent by certified mail,
return receipt requested.
(d) When notification is required. (1) For confidential commercial
information submitted to VA prior to January 1, 1988, notification to
submitters is required whenever:
(i) The records are less than 10 years old and the requested
information has been designated by the submitter as confidential
commercial information; or
(ii) VA facility, administration, or staff office which has custody
of the requested records has reason to believe that disclosure of the
requested information could reasonably be expected to cause substantial
competitive harm.
(2) For confidential commercial information submitted to VA on or
after January, 1, 1988, notification is required whenever:
(i) The submitter has in good faith designated the requested records
as confidential information in accordance with paragraph (e) of this
section; or
(ii) VA facility, administration, or staff office which has custody
of the requested records has reason to believe that disclosure could
reasonably be expected to cause substantial competitive harm.
(e) Designation by submitters of information as confidential
commercial information. (1) When business records are provided to VA,
the submitter may appropriately designate any records or portions
thereof which contain confidential commercial information, the
disclosure of which could reasonably be expected to cause substantial
competitive harm. This designation may be made at the time the
information or record is given to VA or within a reasonable period of
time thereafter, but not later than 60 days after receipt of the
information by VA. Information so designated will be clearly identified
by marking it with the words ``confidential commercial information'' or
by an accompanying detailed written description of the specific kinds of
information that is designated. If a complete document or record is
designated, the cover page of the document or record will be clearly
marked ``This entire (document, record, etc.) consists of confidential
commercial information.'' If only portions of documents are designated,
only those specific designated portions will be conspicuously annotated
as ``confidential commercial information.''
(2) A designation described in paragraph (e)(1) of this section will
remain in effect for a period of not more than 10 years after submission
to VA, unless the submitter provides acceptable justification for a
longer specific period. If a shorter designation period is adequate, the
submitter's designation should include the earlier expiration date.
Whenever possible, the submitter's designation should be supported by a
statement or certification by an officer or authorized representative of
the submitter that the records are in fact confidential commercial
information and have not been published or made available to the public.
(f) Opportunity to object to disclosure. (1) When notification to a
submitter is made pursuant to paragraph (c) of this section, the
submitter or designee may object to the disclosure of any specified
portion of the record(s). Such objection will be in writing, will be
addressed to the VA official who provided notice, will identify the
specific record(s) or portion(s) of records that should not be
disclosed, will specify all grounds upon which disclosure is opposed,
and will explain in detail why the information is considered to be a
trade secret or confidential commercial information, i.e., why
disclosure of the specified records could reasonably be expected to
cause substantial competitive harm. Information provided by a submitter
pursuant to this paragraph may itself be subject to disclosure under the
FOIA.
(2) Any objection to disclosure must be submitted within 10 working
days after receipt by the submitter of notification as provided for in
paragraph (c) of this section.
(3) If an objection to disclosure is received within the 10 working
day time period, careful consideration will be
[[Page 57]]
given to all specified grounds for nondisclosure prior to making an
administrative determination whether to disclose the record. When it is
determined to disclose the requested record(s) or portions of records
which are the subject of an objection, the submitter will be provided a
written statement of the VA decision, the reason(s) that the submitter's
objections to disclosure were overruled, a description or copy of the
exact information or record(s) to be disclosed which were the subject of
an objection, and the specified date of disclosure. The date of
disclosure will not be less than 10 working days from the date this
notice is placed into mail delivery channels.
(g) Notices to requester. (1) When a request is received for records
that may contain confidential commercial information protected by FOIA
exemption (b)(4), 5 U.S.C. 552(B)(4), the requester will be notified
that the request is being processed under the provisions of this
regulation and, as a consequence, there may be a delay in receiving a
response.
(2) Whenever a submitter is notified, pursuant to paragraph (c) of
this section, that VA has received a request for records which had been
provided by such submitter, and that such request was being processed
under the FOIA, the requester will be notified that the submitter is
being provided an opportunity to comment on the request. The notice to
the requester should not include any of the specific information
contained in the records being requested.
(3) Whenever VA notifies a submitter of a final decision, the
requester will also be notified by separate correspondence. This
notification to the requester may be contained in VA's FOIA decision.
(h) Notices of lawsuit. Whenever a FOIA requester brings suit
seeking to compel disclosure of confidential commercial information, the
submitter of the information will be promptly notified.
(i) Exceptions to the notification requirements. The predisclosure
notification requirements in paragraph (c) of this section need not be
followed if:
(1) It is determined that the record(s) or information should not be
disclosed;
(2) The record(s) requested have been published or have been
officially made available to the public;
(3) Disclosure of the record(s) or information is required by law
(other than the FOIA, 5 U.S.C. 552);
(4) Disclosure is required by an Agency rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to VA that are to
be released under the FOIA; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(5) The record(s) requested are not designated by the submitter as
exempt from disclosure in accordance with paragraph (e) of this section,
and the submitter had an opportunity to do so at the time of submission
of the record(s) or a reasonable time thereafter, and VA does not have
substantial reason to believe that disclosure of the information would
result in competitive harm; or
(6) The designation made by the submitter in accordance with
paragraph (e) of this section appears obviously frivolous, except that,
in such case, VA must still provide the submitter with advance written
notice of any final administrative disclosure determination not less
than 10 working days prior to the specified disclosure date.
(Approved by the Office of Management and Budget under control number
2900-0393)
(Authority: 38 U.S.C. 501; 5 U.S.C. 552(b)(4): E.O. 12600 (52 FR 23781))
[57 FR 2229, Jan. 21, 1992]
Sec. 1.555 Fees.
(a) Definitions of terms. For the purpose of this section, the
following definitions apply:
(1) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade or profit interests of the requester or the person on whose behalf
the request is made. To determine whether a request
[[Page 58]]
properly belongs in this category, consideration must be given to the
use to which a requester will put the documents requested. Where the use
of the records sought is not clear in the request or where there is
reasonable cause to doubt the use to which the requester will put the
records sought, additional information may be sought from the requester
before assigning the request to a specific category.
(2) Direct costs means those expenditures which VA actually incurs
in searching for and duplicating (and in the case of commercial use
requests, reviewing) documents to respond to a Freedom of Information
Act (FOIA) request. Direct costs include, for example, the salary of the
employee performing work, i.e., the basic rate of pay for the employee,
plus 16 percent of that rate to cover benefits, and the cost of
operating duplicating machinery. Not included in direct costs are
overhead expenses such as costs of space, and heating or lighting of the
facility in which the records are stored.
(3) Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form of
paper copy, microform, audiovisual materials or machine readable
documentation (e.g., magnetic tape or disk), among others. The copy
provided must be in a form that is reasonably usable by requesters.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
To determine whether a request properly belongs in this category, the
request must be evaluated to ensure that it is apparent from the nature
of the request that it serves a scholarly research goal of the
institution, rather than an individual goal of the requester or a
commercial goal of the institution.
(5) Non-commercial scientific institution means an institution that
is not operated on a commercial basis (as that term is referenced under
Commercial use request of this paragraph) and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
(6) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only in those instances when they can qualify as disseminators of news)
who make their products available for purchase or subscription by the
general public. These examples are not intended to be all inclusive. As
traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media will be included in this category. Freelance
journalists may be regarded as working for a news organization if they
can demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the requester's past
publication history can be considered also. In any case, freelancers who
do not qualify for inclusion in the representative of the news media
category may seek a reduction or waiver of fees under paragraph (f) of
this section.
(7) Review means the process of examining documents located in
response to a commercial use request (see definition of commercial use
request in this section) to determine whether any portion of any
document located is permitted to be withheld. It also includes
processing any documents for disclosure in response to a commercial use
request, e.g., doing all that is necessary to excise them and otherwise
prepare them for release. The term review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(8) Search means all the time spent looking for material that is
responsive to a request, including page-by-page or
[[Page 59]]
line-by-line identification of material within documents. Searches may
be done manually or by computer using existing programs. The most
efficient and least expensive manner of searching for material will be
used to minimize costs to VA and the requester. For example, line-by-
line searches will not be conducted when duplicating an entire document
is the least expensive and quicker method of complying with a request.
The term search does not cover the time spent to review documents to
determine whether all or portions thereof can be withheld under one of
the nine categories of exemptions identified in Sec. 1.554 of this part.
(b) Fees to be charged. (1) Except as provided in paragraphs (c),
(d), (f) and (g) of this section, the Department of Veterans Affairs
will charge fees that recoup the full allowable direct costs for
responding to each request from the public. Such fees will be charged in
accordance with the schedule of fees in paragraph (e) of this section,
and other requirements or restrictions in this regulation. The most
efficient and least costly methods will be used to comply with requests
for documents made under the FOIA.
(2) If it is estimated that charges for duplication determined by
using the fee schedule in Sec. 1.555(e) of this part are likely to
exceed $25, the requester will be notified of the estimated amount of
fees, unless the requester has indicated in advance his or her
willingness to pay fees as high as those anticipated. Such notice will
offer the requester the opportunity to confer with Department personnel
with the object of reformulating the request to meet his or her needs at
a lower cost.
(3) Each administration and staff office upon approval of the
Secretary is authorized to contract with private sector services to
locate, reproduce, and disseminate records in response to FOIA requests
when that is the most efficient and least costly method. If a contractor
is used, the ultimate cost to the requester can be no greater than it
would if the administration, staff office, or field facility performed
the task, itself. In no case may a administration, staff office, or
field facility contract out responsibilities which the FOIA provides
that they alone may discharge, such as determining the applicability of
an exemption, or determining whether to waive or reduce fees.
(4) When documents that would be responsive to a request are
maintained for distribution by agencies operating statutory-based fee
schedule programs, in which the agency is required to set the level of
fees for particular types of records, such as the National Technical
Information Service or the Government Printing Office, the requester of
such documents will be informed of the steps necessary to obtain records
from those sources, rather than from VA.
(c) Restrictions on assessing fees. With the exception of commercial
use requests no charges will be assessed for the first 100 pages of
duplication and the first two hours of search time. Moreover, no fees
are to be charged any requester, including commercial use requesters, if
the cost of collecting the fee is equal to or greater than the fee
itself. These provisions work together so that, except for commercial
use requests, fees will not be assessed until the free search and
duplication have been provided. For example, if a request takes two
hours and ten minutes of search time and results in 105 reproduced pages
of documents, fees can be charged for only 10 minutes of search time and
for only five pages of reproduction. If this cost were equal to or less
than the cost to VA of billing the requester and processing the fee
collected, no charges would be assessed. (NOTE: The cost of collecting
fees are VA's administrative costs of receiving and recording a
requester's remittance, and processing the fee for deposit in the
Treasury Department's special account. The cost is determined to be
negligible. The per-transaction costs to the Treasury to handle such
remittances is negligible and will not be considered in the Department's
determination.)
(1) For purposes of the restriction on assessing fees, the word
pages refers to one-sided paper copies of the standard sizes 8\1/2\''
x 11'' or 8\1/2\'' x 14'' or 11 '' x 14''. Accordingly, requesters
will not be entitled to 100 microfiche or 100 computer disks free. One
microfiche containing the equivalent of 100 pages or 100 pages of
computer printout might meet the terms of the restriction.
[[Page 60]]
(2) The term search time in this context is based on manual
searches. To calculate the computer search time for the purpose of
applying the two-hour search restriction, the hourly cost of operating
the computer's central processing unit will be combined with the
operator's hourly salary, plus 16 percent of the salary. When the cost
of the search (including the operator time and the cost of the computer
to process a request) equals the equivalent dollar amount of two hours
of the salary of the person performing the search, i.e., the operator,
charges will begin to be assessed for a computer search.
(d) Categories of requesters and fees to be charged each category.
There are four categories of FOIA requesters: Commercial use requesters;
educational and non-commercial scientific institutional requesters;
requesters who are representatives of news media; and all other
requesters. Specific levels of fees will be charged for each of these
categories as follows:
(1) Commercial use requesters. When a request for documents for
commercial use is received, the full direct costs of searching for,
reviewing for release, and duplicating the records sought will be
charged to the requester. Commercial use requesters are not entitled to
two hours of free search time nor 100 free pages of reproduced
documents. Moreover, the commercial use requester will be charged the
cost of searching for and reviewing records even if there is ultimately
no disclosure of records. The requester must reasonably describe the
records sought.
(2) Educational and non-commercial scientific institution
requesters. These requesters will be charged only for the cost of
reproduction, excluding charges for the first 100 pages. In order to be
considered a member of this category, a requester must show that the
request is being made as authorized by and under the auspices of a
qualifying institution and that the records are not sought for a
commercial use. If the request is from an educational institution, the
requester must show that the records sought are in furtherance of
scholarly research. If the request is from a non-commercial scientific
institution, the requester has to show that the records are sought in
furtherance of scientific research. Information necessary to support a
claim of being categorized as an educational or non-commercial
scientific institution requester will be provided by the requester, and
the requester must reasonably describe the records sought.
(3) Representatives of news media. These requesters will be charged
for the cost of reproduction, only, excluding charges for the first 100
pages. To be included in this category, a requester must fall within the
definition of a representative of the news media specified in paragraph
(a)(vi) of this section, and the request must not be made for commercial
use. A request for records supporting the news dissemination function of
the requester will not be considered to be a request that is for
commercial use. Requesters must reasonably describe the records sought.
(4) All other requesters. Any requester that does not fit into any
of the categories in this section will be charged fees which recover the
full reasonable direct cost of searching for and reproducing records
that are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time will be furnished
without charge. In addition, under certain circumstances specified in
paragraph (f) of this section, fees will be waived or reduced at the
discretion of field facility heads, their designee, or responsible
Central Office officials. Requests from VA beneficiaries, applicants for
VA benefits, or other individuals for records retrievable by their name
or other personal identifier will initially be processed under 38 U.S.C.
5701 and 5 U.S.C. 552a and will be assessed fees in accordance with the
applicable fee provisions of Sec. 1.526(i) or Sec. 1.577(f) of this
part. To the extent that records are not disclosable under these
provisions, the disclosure of such records will be evaluated under
Secs. 1.550 through 1.559 of this part, and fees will be assessed under
paragraph (e) of this section. Requesters must reasonably describe the
records sought.
(e) Schedule of fees:
[[Page 61]]
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page.
type of reproduction process to
produce plain one-sided paper
copies of a standard size (8\1/2\"
x 11"; 8\1/2\" x 14"; 11" x
14").
(2) Duplication of non-paper Actual direct cost to the Agency.
records, such as microforms, (See paragraph (a)(2) of this
audiovisual materials (motion section and, if costs are likely
pictures, slides, laser optical to exceed $25.00, paragraph (b)(2)
disks, video tapes, audiotapes, of this section.
etc.) computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(3) Duplication of documents by any Actual direct cost to the Agency.
type of reproduction process not (See paragraph (a)(2) of this
covered by paragraphs (e)(1) and section and, if costs are likely
(2) of this section to produce a to exceed $25.00, paragraph (b)(2)
copy in a form reasonably usable of this section.
by the requester.
(4) Document search by manual (non- Basic hourly salary rate of the
automated) methods. employee(s) performing the search,
plus 16 percent. (If costs are
likely to exceed $25.00, see
paragraph (g)(2) of this section.)
(Note--If a department, staff office or field station uses exclusively a
single class of personnel, e.g., all administrative/clerical or all
professional/executive, an average rate for the range of grades
involved may be used).
(5) Document search using automated Actual direct cost to perform
methods, such as by computer. search. (See paragraph (c)(2) of
this section, and, if costs are
likely to exceed $25.00, see
paragraph (g)(2) of this section.)
(6) Document review (use only for Basic hourly salary rate of
commercial use requesters). employee(s) performing initial
review to determine whether to
release document(s) or portions of
records, plus 16 percent.
(Note.--Charge for document reviews covers only the time spent reviewing
the document(s) at the initial administrative level to determine
applicability of a specific FOIA exemption to a particular record or
portion of a record. It does not cover any review incurred at the
administrative appeal level once the initial exemptions are applied.
However, records or portions of records withheld in full under an
exemption which is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. The cost for such a subsequent review may be properly
assessed).
(7) Other charges: Certifying that Where applicable, assess under
records are true copies; Sending provisions of Secs. 1.526(i) and
records by special methods such as (j) of this part, otherwise actual
express mail. direct cost of service performed.
------------------------------------------------------------------------
(f) Waiving or reducing fees. (1) Fees for records and services
provided in response to a FOIA request will be waived or reduced when it
is determined by responsible Central Office officials or field station
heads or their designee that furnishing the document(s) is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
(2) The following factors will be considered in sequence in
determining whether disclosure of information is in the public interest
because it is likely to contribute significantly to the public
understanding of the operations or activities of the government:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to public understanding; and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities.
[[Page 62]]
(3) The following factors will be considered in sequence in
determining whether disclosure of information is primarily in the
commercial interest of the requester:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(4) An appeal from an adverse fee waiver or reduction determination
will be processed in the same manner as described in Sec. 1.557 of this
part.
(g) Other administrative considerations to improve assessment and
collection of fees--(1) Charging interest--notice and rate. The
Department of Veterans Affairs may charge interest to those requesters
who fail to timely pay fees assessed in accordance with these
regulations. Determination to charge interest will be made by the
responsible Central Office official or field facility head or designee.
Interest will be assessed on the unpaid bill beginning on the 31st day
following the day on which the original building was sent. Interest will
be at the rate prescribed in section 3717 of title 31 U.S.C., and will
accrue from the date of the billing. Accounting procedures ensure that a
requester who has remitted the full amount within the time period is
properly credited with the payment. The fact that the fee has been
received by VA, even if not processed, will suffice to stay the accrual
of interest.
(2) Charges for unsuccessful search. When it is determined by the
responsible Central Office official or field facility head or designee,
charges for searching may be assessed, even if records are not located
to satisfy a request or if records located are determined to be exempt
from disclosure. If it is determined that search charges are likely to
exceed $25, the requester will be notified of the estimated amount of
fees, unless the requester has indicated in advance a willingness to pay
fees as high as those anticipated. Such notice will offer the requester
the opportunity to confer with agency personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(3) Aggregating requests. When the responsible Central Office
official or field facility head or designee reasonably believes that a
requester or, on rare occasions, a group of requesters acting in
concert, is attempting to break a request down into a series of requests
for the purpose of evading the assessment of fees, the responsible
Central Office official, or field facility head or designee may
aggregate (combine) any such requests and charge accordingly. One
element to consider in determining whether a belief would be reasonable
is the time period in which the requests occurred. For example, it is
reasonable to presume that multiple requests within a 30-day time period
that seek portion(s) of the same document(s) is an attempt to avoid
payment of charges. For requests made over a longer period, however,
such presumption becomes harder to sustain. In each case, there must be
a solid basis for determining that aggregation is warranted. Caution
will be exercised before aggregating requests from more than one
requester. There must be a concrete basis on which to conclude that the
requesters are acting in concert and are acting specifically to avoid
payment. In no case will multiple requests on unrelated subjects from
one requester be aggregated.
(4) Advance payments. The Department of Veterans Affairs may not
require a requester to make an advance payment, i.e., payment before
work is commenced or continued on a request, unless:
(i) The allowable charges that a requester may be required to pay
are likely to exceed $250. Then, the Department of Veterans Affairs
should either notify the requester of the likely cost and obtain
satisfactory assurance of full payment, or require an advance payment of
an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(ii) A requester has previously failed to pay a fee charged in a
timely fashion
[[Page 63]]
(i.e., within 30 days of the date of the billing). Then, the Department
of Veterans Affairs may require the requester to pay the full amount
owed, plus any applicable interest as provided in paragraph (g)(1) of
this section, or to demonstrate that he or she has, in fact, paid the
fee, and to make an advance payment of the estimated fee before the
Department begins to process a new request or a pending request from
that requester.
(iii) If a requester is required to make advance payments, as
described in this section, the time limits prescribed in Sec. 1.553a of
this part, for responding to initial requests and appeals from initial
denials, will begin only after the Department has received the advance
fee payments.
(5) Debt collection. In the event of non-payment of billed charges
for disclosure of records, the procedures authorized by the Debt
Collection Act of 1982 (Pub. L. 97-365) may be used. This may include
disclosure to consumer reporting agencies and use of collection
agencies.
(Authority: 5 U.S.C. 552(a)(4)(A))
[53 FR 10377, Mar. 31, 1988]
Sec. 1.556 Requests for other reasonably described records.
Each administration, staff office, and field facility head will
designate an employee(s) who will be responsible for initial action on
(granting or denying) requests to inspect or obtain information from or
copies of records under their jurisdiction and within the purview of
Sec. 1.553. This responsibility includes maintaining a uniform listing
of such requests. Data logged will consist of: Name and address of
requester; date of receipt of request; brief description of request;
action taken on request, granted or denied; citation of the specific
section when request is denied; and date of reply to the requester. In
the field a denial of any such request may be made only by the Director
or the designated employee and in Central Office only by the
administration or staff office head or designee. The letter notifying
the requester of the denial will be signed by the official making the
denial decision. Any legal question arising in a field station
concerning the release of information will be referred to the
appropriate Regional Counsel for disposition as contemplated by
Sec. 13.401* of this chapter. In Central Office such legal questions
will be referred to the General Counsel. Any administrative question
will be referred through administrative channels to the appropriate
administration or staff office head. All denials or proposed denials at
the Central Office level will be coordinated with the Director,
Information Service as well as the General Counsel.
---------------------------------------------------------------------------
*Editorial Note: At 42 FR 41410, Aug. 17, 1977, Sec. 13.401 was
removed.
[40 FR 12658, Mar. 20, 1975]
Sec. 1.557 Administrative review.
(a) Upon denial of a request, the responsible Department of Veterans
Affairs official or designated employee will inform the requester in
writing of the denial, cite the specific exemption in Sec. 1.554 upon
which the denial is based, set forth the names and titles or positions
of each person responsible for the denial of such request, and advise
that the denial may be appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the
General Counsel or the Deputy General Counsel.
[40 FR 12658, Mar. 20, 1975, as amended at 55 FR 21546, May 25, 1990]
Secs. 1.558--1.559 [Reserved]
Safeguarding Personal Information in Department of Veterans Affairs
Records
Note: Sections 1.575 through 1.584 concern the safeguarding of
individual privacy from the misuse of information from files, records,
reports, and other papers and documents in Department of Veterans
Affairs custody. As to the release of information from Department of
Veterans Affairs claimant records see Sec. 1.500 series. As to the
release of information from Department of Veterans Affairs records other
than claimant records see Sec. 1.550 series. Section 1.575 series
implement the provisions of Pub. L. 93-579, December 31, 1974, adding a
section 552a to title 5 U.S.C. providing that individuals be granted
access to records concerning them which are maintained by Federal
agencies, and for other purposes.
[[Page 64]]
Source: Sections 1.575 through 1.584 issued at 40 FR 33944, Aug. 12,
1975, unless otherwise noted.
Sec. 1.575 Social security numbers in veterans' benefits matters.
(a) Except as provided in paragraph (b) of this section, no one will
be denied any right, benefit, or privilege provided by law because of
refusal to disclose to the Department of Veterans Affairs a social
security number.
(b) VA shall require mandatory disclosure of a claimant's or
beneficiary's social security number (including the social security
number of a dependent of a claimant or beneficiary) on necessary forms
as prescribed by the Secretary as a condition precedent to receipt or
continuation of receipt of compensation or pension payable under the
provisions of chapters 11, 13 and 15 of title 38, United States Code,
provided, however, that a claimant shall not be required to furnish VA
with a social security number for any person to whom a social security
number has not been assigned. VA may also require mandatory disclosure
of an applicant's social security number as a condition for receiving
loan guaranty benefits and a social security number or other taxpayer
identification number from existing direct and vendee loan borrowers and
as a condition precedent to receipt of a VA-guaranteed loan, direct loan
or vendee loan, under chapter 37 of title 38, United States Code. (Pub.
L. 97-365, sec. 4)
(c) A person requested by VA to disclose a social security number
shall be told, as prescribed by Sec. 1.578(c), whether disclosure is
voluntary or mandatory. The person shall also be told that VA is
requesting the social security number under the authority of title 38
U.S.C., or in the case of existing direct or vendee loan borrowers,
under the authority of 26 U.S.C. 6109(a) in conjunction with sections
145 and 148 of Pub. L. 98-369, or in the case of loan applicants, under
the authority of section 4 of Pub. L. 97-365. The person shall also be
told that it will be used in the administration of veterans' benefits in
the identification of veterans or persons claiming or receiving VA
benefits and their records, that it may be used in making reports to the
Internal Revenue Service where required by law, and to determine whether
a loan guaranty applicant has been identified as a delinquent taxpayer
by the Internal Revenue Service, and that such taxpayers may have their
loan applications rejected, and that it may be used to verify social
security benefit entitlement (including amounts payable) with the Social
Security Administration and, for other purposes where authorized by both
title 38 U.S.C., and the Privacy Act of 1974, (Pub. L. 93-579), or,
where required by another statute. (Pub. L. 97-365, sec. 4)
(Authority: 38 U.S.C. 5101)
[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986;
56 FR 25044, June 3, 1991]
Sec. 1.576 General policies, conditions of disclosure, accounting of certain disclosures, and definitions.
(a) The Department of Veterans Affairs will safeguard an individual
against an invasion of personal privacy. Except as otherwise provided by
law or regulation its officials and employees will:
(1) Permit an individual to determine what records pertaining to him
or her will be collected, maintained, used, or disseminated by the
Department of Veterans Affairs.
(2) Permit an individual to prevent records pertaining to him or
her, obtained by the Department of Veterans Affairs for a particular
purpose, from being used or made available for another purpose without
his or her consent.
(3) Permit an individual to gain access to information pertaining to
him or her in Department of Veterans Affairs records, to have a copy
made of all or any portion thereof, and to correct or amend such
records.
(4) Collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the information is
correct and accurate for its intended use, and that adequate safeguards
are provided to prevent misuse of such information.
(5) Permit exemptions from records requirements provided in 5 U.S.C.
552a only where an important public policy
[[Page 65]]
need for such exemption has been determined pursuant to specific
statutory authority.
(b) The Department of Veterans Affairs will not disclose any record
contained in a system of records by any means of communication to any
person or any other agency except by written request of or prior written
consent of the individual to whom the record pertains unless such
disclosure is:
(1) To those officers and employees of the agency which maintains
the record and who have a need for the record in the performance of
their duties;
(2) Required under 5 U.S.C. 552;
(3) For a routine use of the record compatible with the purpose for
which it was collected;
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to title 13 U.S.C.;
(5) To a recipient who has provided the Department of Veterans
Affairs with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or designee to determine whether the
record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Department of Veterans Affairs specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General Accounting
Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) With respect to each system of records (i.e., a group of records
from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual) under Department of Veterans Affairs
control, the Department of Veterans Affairs will (except for disclosures
made under paragraph (b)(1) or (2) of this section) keep an accurate
accounting as follows:
(1) For each disclosure of a record to any person or to another
agency made under paragraph (b) of this section, maintain information
consisting of the date, nature, and purpose of each disclosure, and the
name and address of the person or agency to whom the disclosure is made;
(2) Retain the accounting made under paragraph (c)(1) of this
section for at least 5 years or the life of the record, whichever is
longer, after the disclosure for which the accounting is made;
(3) Except for disclosures made under paragraph (b)(7) of this
section, make the accounting under paragraph (c)(1) of this section
available to the individual named in the record at his or her request;
and
(4) Inform any person or other agency about any correction or
notation of dispute made by the agency in accordance with Sec. 1.579 of
any record that has been disclosed to the person or agency if an
accounting of the disclosure was made.
(d) For the purposes of Secs. 1.575 through 1.584, the parent of any
minor, or the legal guardian of any individual who has been declared
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, may act on behalf of the individual.
(e) Section 552a(i), title 5 U.S.C., provides that:
(1) Any officer or employee of the Department of Veterans Affairs,
who by
[[Page 66]]
virtue of his or her employment or official position, has possession of,
or access to, Department of Veterans Affairs records which contain
individually identifiable information the disclosure of which is
prohibited by 5 U.S.C. 552a or by Sec. 1.575 series established
thereunder, and who knowing that disclosure of the specific material is
so prohibited, willfully discloses the material in any manner to any
person or agency not entitled to receive it, shall be guilty of a
misdemeanor and fined not more than $5,000.
(2) Any officer or employee of the Department of Veterans Affairs
who willfully maintains a system of records without meeting the notice
requirements of 5 U.S.C. 552a(e)(4) (see Sec. 1.578(d)) shall be guilty
of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Department of Veterans Affairs
under false pretenses shall be guilty of a misdemeanor and fined not
more than $5,000.
(f) For purposes of Sec. 1.575 series the following definitions
apply:
(1) The term agency includes any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent
regulatory agency.
(2) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence.
(3) The term maintain includes maintain, collect, use, or
disseminate.
(4) The term record means any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his or her education, financial
transactions, medical history, and criminal or employment history and
that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print or a photograph.
(5) The term system of records means a group of any records under
the control of any agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(6) The term statistical record means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or in part in making any determination about an
identifiable individual except as provided by section 8 of title 13
U.S.C.
(7) The term routine use means, with respect to the disclosure of a
record, the use of such record for a purpose which is compatible with
the purpose for which it was collected.
(g) When the Department of Veterans Affairs provides by a contract
for the operation by or on behalf of the Department of Veterans Affairs
of a system of records to accomplish a Department of Veterans Affairs
function, the Department of Veterans Affairs will, consistent with its
authority, cause the requirements of 5 U.S.C. 552a (as required by
subsection (m)) and those of the Sec. 1.575 series to be applied to such
system. For the purposes of 5 U.S.C. 552a(i) and Sec. 1.576(e) any such
contractor and any employee of such contractor, if such contract is
agreed to on or after September 27, 1975, will be considered to be an
employee of the Department of Veterans Affairs.
(h) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that it maintains any agency record which it
deposits with the Administrator of General Services for storage,
processing, and servicing in accordance with section 3103 of title 44
U.S.C. Any such record will be considered subject to the provisions of
Sec. 1.575 series implementing 5 U.S.C. 552a and any other applicable
Department of Veterans Affairs regulations. The Administrator of General
Services is not authorized to disclose such a record except to the
Department of Veterans Affairs, or under regulations established by the
Department of Veterans Affairs which are not inconsistent with 5 U.S.C.
552a.
(i) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that a record is maintained by the National
Archives of the
[[Page 67]]
United States if it pertains to an identifiable individual and was
transferred to the National Archives prior to September 27, 1975, as a
record which has sufficient historical or other value to warrant its
continued preservation by the United States Government. Such records are
not subject to the provisions of 5 U.S.C. 552a except that a statement
generally describing such records (modeled after the requirements
relating to records subject to subsections (e)(4)(A) through (G) of 5
U.S.C. 552a) will be published in the Federal Register.
(j) The Department of Veterans Affairs will also, for the purposes
of 5 U.S.C. 552a, consider that a record is maintained by the National
Archives of the United States if it pertains to an identifiable
individual and is transferred to the National Archives on or after
September 27, 1975, as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government. Such records are exempt from the requirements of 5 U.S.C.
552a except subsections (e)(4) (A) through (G) and (e)(9) thereof.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975;
47 FR 16323, Apr. 16, 1982]
Sec. 1.577 Access to records.
(a) Except as otherwise provided by law or regulation any individual
upon request may gain access to his or her record or to any information
pertaining to him or her which is contained in any system of records
maintained by the Department of Veterans Affairs. The individual will be
permitted, and upon his or her request, a person of his or her own
choosing permitted to accompany him or her, to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to him or her. The Department of Veterans Affairs will require, however,
a written statement from the individual authorizing discussion of that
individual's record in the accompanying person's presence.
(b) Any individual will be notified, upon request, if any Department
of Veterans Affairs system of records named contains a record pertaining
to him or her. Such request must be in writing, over the signature of
the requester. The request must contain a reasonable description of the
Department of Veterans Affairs system or systems of records involved, as
described at least annually by notice published in the Federal Register
describing the existence and character of the Department of Veterans
Affairs system or systems of records pursuant to Sec. 1.578(d). The
request should be made to the office concerned (having jurisdiction over
the system or systems of records involved) or, if not known, to the
Director or Department of Veterans Affairs Officer in the nearest
Department of Veterans Affairs regional office, or to the Department of
Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC
20420. Personal contact should normally be made during the regular duty
hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday
through Friday for Department of Veterans Affairs Central Office and
most field facilities. Identification of the individual requesting the
information will be required and will consist of the requester's name,
signature, address, and claim, insurance or other identifying file
number, if any, as a minimum. Additional identifying data or documents
may be required in specified categories as determined by operating
requirements and established and publicized by the promulgation of
Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))
(c) The department or staff office having jurisdiction over the
records involved will establish appropriate disclosure procedures and
will notify the individual requesting disclosure of his or her record or
information pertaining to him or her of the time, place and conditions
under which the Department of Veterans Affairs will comply to the extent
permitted by law and Department of Veterans Affairs regulation. (5
U.S.C. 552a(f)(2))
[[Page 68]]
(d) Access to sensitive material in records, including medical and
psychological records, is subject to the following special procedures.
When an individual requests access to his or her records, the Department
of Veterans Affairs official responsible for administering those records
will review them and identify the presence of any sensitive records.
Sensitive records are those that contain information which may have a
serious adverse effect on the individual's mental or physical health if
they are disclosed to him or her. If, on review of the records, the
Department of Veterans Affairs official concludes that there are
sensitive records involved, the official will refer the records to a
Department of Veterans Affairs physician, other than a rating board
physician, for further review. If the physician who reviews the records
believes that disclosure of the information directly to the individual
could have an adverse effect on the physical or mental health of the
individual, the responsible Department of Veterans Affairs official will
then advise the requesting individual: (1) That the Department of
Veterans Affairs will disclose the sensitive records to a physician or
other professional person selected by the requesting individual for such
redisclosure as the professional person may believe is indicated, and
(2) in indicated cases, that the Department of Veterans Affairs will
arrange for the individual to report to a Department of Veterans Affairs
facility for a discussion of his or her records with a designated
Department of Veterans Affairs physician and for an explanation of what
is included in the records. Following such discussion, the records
should be disclosed to the individual; however, in those extraordinary
cases where a careful and conscientious explanation of the information
considered harmful in the record has been made by a Department of
Veterans Affairs physician and where it is still the physician's
professional medical opinion that physical access to the information
could be physically or mentally harmful to the patient, physical access
may be denied. Such a denial situation should be an unusual, very
infrequent occurrence. When denial of a request for direct physical
access is made, the responsible Department of Veterans Affairs official
will: (1) Promptly advise the individual making the request of the
denial; (2) state the reasons for the denial of the request (e.g., 5
U.S.C. 552a(f)(3), 38 U.S.C. 5701(b)(1)); and (3) advise the requester
that the denial may be appealed to the General Counsel and of the
procedure for such an appeal.
(Authority: 5 U.S.C. 552a(f)(3))
(e) Nothing in 5 U.S.C. 552a, however, allows an individual access
to any information compiled in reasonable anticipation of civil action
or proceeding. (5 U.S.C. 552a(d)(5))
(f) Fees to be charged, if any, to any individual for making copies
of his or her record shall not include the cost of any search for and
review of the record, and will be as follows:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/2\"
x 11"; 8\1/2\" x 14"; 11" x 14").
(2) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audio tapes, duplication.
etc.), computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(3) Duplication of document by any Actual direct cost to the Agency as
type of reproduction process not defined in Sec. 1.555(a)(2) of
covered by paragraphs (f)(1) or this part to the extent that it
(2) of this section to produce a pertains to the cost of
copy in a form reasonably usable duplication.
by the requester.
------------------------------------------------------------------------
Note.--Fees for any activities other than duplication by any type of
reproducing process will be assessed under the provisions of
Sec. 1.526(i) or (j) of this part of any other applicable law.)
(g) When VA benefit records, which are retrievable by name or
individual identifier of a VA beneficiary or applicant for VA benefits,
are requested by
[[Page 69]]
the individual to whom the record pertains, the duplication fee for one
complete set of such records will be waived.
(Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982;
53 FR 10380, Mar. 31, 1988; 55 FR 21546, May 25, 1990]
Sec. 1.578 [Reserved]
Sec. 1.579 Amendment of records.
(a) Any individual may request amendment of any Department of
Veterans Affairs record pertaining to him or her. Not later than 10 days
(excluding Saturdays, Sundays, and legal public holidays) after the date
or receipt of such request, the Department of Veterans Affairs will
acknowledge in writing such receipt. The Department of Veterans Affairs
will complete the review to amend or correct a record as soon as
reasonably possible, normally within 30 days from the receipt of the
request (excluding Saturdays, Sundays, and legal public holidays) unless
unusual circumstances preclude completing action within that time. The
Department of Veterans Affairs will promptly either:
(1) Correct any part thereof which the individual believes is not
accurate, relevant, timely or complete; or
(2) Inform the individual of the Department of Veterans Affairs
refusal to amend the record in accordance with his or her request, the
reason for the refusal, the procedures by which the individual may
request a review of that refusal by the Secretary or designee, and the
name and address of such official.
(Authority: 5 U.S.C. 552a(d)(2))
(b) The administration or staff office having jurisdiction over the
records involved will establish procedures for reviewing a request from
an individual concerning the amendment of any record or information
pertaining to the individual, for making a determination on the request,
for an appeal within the Department of Veterans Affairs of an initial
adverse Department of Veterans Affairs determination, and for whatever
additional means may be necessary for each individual to be able to
exercise fully, his or her right under 5 U.S.C. 552a.
(1) Headquarters officials designated as responsible for the
amendment of records or information located in Central Office and under
their jurisdiction include, but are not limited to: Secretary; Deputy
Secretary, as well as other appropriate individuals responsible for the
conduct of business within the various Department of Veterans Affairs
administrations and staff offices. These officials will determine and
advise the requester of the identifying information required to relate
the request to the appropriate record, evaluate and grant or deny
requests to amend, review initial adverse determinations upon request,
and assist requesters desiring to amend or appeal initial adverse
determinations or learn further of the provisions for judicial review.
(2) The following field officials are designated as responsible for
the amendment of records or information located in facilities under
their jurisdiction, as appropriate: The Director of each Center,
Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply
Depot, and Regional Counsels. These officials will function in the same
manner at field facilities as that specified in the preceding
subparagraph for headquarters officials in Central Office.
(Authority: 5 U.S.C. 552a(f)(4))
(c) Any individual who disagrees with the Department of Veterans
Affairs refusal to amend his or her record may request a review of such
refusal. The Department of Veterans Affairs will complete such review
not later than 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual request such review and
make a final determination unless, for good cause shown, the Secretary
extends such 30-day period. If, after review, the Secretary or designee
also refuses to amend the record in accordance with the request the
individual will be advised of the right to file with the Department of
Veterans Affairs a concise statement setting forth the reasons for his
or her disagreement with the Department of Veterans Affairs refusal and
also advise of the provisions for judicial review of
[[Page 70]]
the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))
(d) In any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after the
filing of the statement under paragraph (c) of this section, the
Department of Veterans Affairs will clearly note any part of the record
which is disputed and provide copies of the statement (and, if the
Department of Veterans Affairs deems it appropriate, copies of a concise
statement of the Department of Veterans Affairs reasons for not making
the amendments requested) to persons or other agencies to whom the
disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C.
501)
[47 FR 16324, Apr. 16, 1982]
Sec. 1.580 Administrative review.
(a) Upon denial or a request under 38 CFR 1.577 or 1.579, the
responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial, cite the
reason or reasons and the Department of Veterans Affairs regulations
upon which the denial is based, and advise that the denial may be
appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the
General counsel or the Deputy General Counsel.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982;
55 FR 21546, May 25, 1990]
Sec. 1.581 [Reserved]
Sec. 1.582 Exemptions.
(a) Certain systems of records maintained by the Department of
Veterans Affairs are exempted from provisions of the Privacy Act in
accordance with exemptions (j) and (k) of 5 U.S.C. 552a.
(b) Exemption of Inspector General Systems of Records. The
Department of Veterans Affairs provides limited access to Inspector
General Systems of Records as indicated.
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d),
(e)(1), (2) and (3), (e)(4) (G), (H) and (I), (e)(5) and (8), (f) and
(g) of 5 U.S.C. 552a; in addition, the following systems of records are
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5
U.S.C. 552a:
(i) Investigation Reports of Persons Allegedly Involved in
Irregularities Concerning VA and Federal Laws, Regulations, Programs,
etc.--VA (11 VA51); and
(ii) Inspector General Complaint Center Records--VA (66VA53).
(2) These exemptions apply to the extent that information in those
systems is subject to exemptions pursuant to 5 U.S.C. 552a (j)(2) and
(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (b)(1) of this section are exempted under sections 552a (j)(2)
and (k)(2) from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must
give an individual named in a record an accounting which reflects the
disclosure of the record to other persons or agencies. This accounting
must state the date, nature and purpose of each disclosure of the record
and the name and address of the recipient. The application of this
provision would alert subjects to the existence of the investigation and
identify that such persons are subject of that investigation. Since
release of such information to subjects would provide them with
significant information concerning the nature of the investigation, it
could result in the altering or destruction of derivative evidence which
is obtained from third parties, improper influencing of witnesses, and
other activities that could impede or compromise the investigation.
(ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g)
relate to an individual's right to be notified of the existence of
records pertaining to such individual; requirements for identifying an
individual who requests access to records; the agency procedures
relating to access to records and the amendment of information contained
in such records; and the civil remedies available to the individual in
the event of adverse determinations by an agency concerning access to or
amendment of
[[Page 71]]
information contained in record systems. This system is exempt from the
foregoing provisions for the following reasons: To notify an individual
at the individual's request of the existence of records in an
investigative file pertaining to such individual or to grant access to
an investigative file could interfere with investigative and enforcement
proceedings, threaten the safety of individuals who have cooperated with
authorities, constitute an unwarranted invasion of personal privacy of
others, disclose the identity of confidential sources, reveal
confidential information supplied by these sources, and disclose
investigative techniques and procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This could compromise the ability to conduct
investigations and to identify, detect and apprehend violators. Even
though the agency has claimed an exemption from this particular
requirement, it still plans to generally identify the categories of
records and the sources for these records in this system. However, for
the reasons stated in paragraph (b)(3)(ii) of this section, this
exemption is still being cited in the event an individual wants to know
a specific source of information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. These systems of records are exempt from the foregoing
provisions because:
(A) It is not possible to detect the relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary may ultimately be determined to be
unnecessary. It is only after the information is evaluated that the
relevance and necessity of such information can be established.
(C) In any investigation the Inspector General may obtain
information concerning the violations of laws other than those within
the scope of his/her jurisdiction. In the interest of effective law
enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity and provide leads
for those law enforcement agencies charged with enforcing other segments
of civil or criminal law.
(v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision would impair investigations of illegal
acts, violations of the rules of conduct, merit system and any other
misconduct for the following reasons:
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's rights
against self-incrimination and because of the inherent unreliability of
the suspect's statements. Similarly, it is not always feasible to rely
upon the complainant as a source of information regarding his/her
involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary;
[[Page 72]]
(B) The purposes for which the information is intended to be used;
(C) The routine uses which may be made of the information; and
(D) The effects on the subject, if any, of not providing the
requested information. The reasons for exempting this system of records
from the foregoing provision are as follows:
(1) The disclosure to the subject of the purposes of the
investigation as stated in paragraph (b)(3)(vi)(B) of this paragraph
would provide the subject with substantial information relating to the
nature of the investigation and could impede or compromise the
investigation.
(2) If the complainant or the subject were informed of the
information required by this provision, it could seriously interfere
with undercover activities requiring disclosure of the authority under
which the information is being requested. This could conceivably
jeopardize undercover agents' identities and impair their safety, as
well as impair the successful conclusion of the investigation.
(3) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law defines maintain to
include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment of its collection. In
gathering information during the course of an investigation it is not
always possible to determine this prior to collection of the
information. Facts are first gathered and then placed into a logical
order which objectively proves or disproves criminal behavior on the
part of the suspect. Material which may seem unrelated, irrelevant,
incomplete, untimely, etc., may take on added meaning as an
investigation progresses. The restrictions in this provision could
interfere with the preparation of a complete investigative report.
(viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The notice
requirement of this provision could prematurely reveal an ongoing
criminal investigation to the subject of the investigation.
(c) Exemption of Loan Guaranty Service, Veterans Benefits
Administration, Systems of Records. The Department of Veterans Affairs
provides limited access to Loan Guaranty Service, Veterans Benefits
Administration, systems of records as indicated:
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1)
and (e)(4) (G), (H) and (I) and (f):
(i) Loan Guaranty Fee Personnel and Program Participant Records--VA
(17VA26); and
(ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant
Records and Paraplegic Grant Application Records--VA (55VA26).
(2) These exemptions apply to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (c)(1) of this section are exempted under 5 U.S.C. 552a(k)(2)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are subjects of that investigation. Since release of such
information to subjects of an investigation
[[Page 73]]
would provide the subjects with significant information concerning the
nature of the investigation, it could result in the altering or
destruction of documentary evidence, improper influencing of witnesses
and other activities that could impede or compromise the investigation.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could interfere
with investigative and enforcement proceedings; constitute an
unwarranted invasion of the personal privacy of others; disclose the
identity of confidential sources and reveal confidential information
supplied by these sources and disclose investigative techniques and
procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This would compromise the ability to conduct
investigations. Even though the agency has claimed an exemption from
this particular requirement, it still plans to generally identify the
categories of records and the sources for these records in this system.
However, for the reasons stated above, this exemption is still being
cited in the event an individual wanted to know a specific source of
information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance or necessity of specific
information in the early stages of an investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relates to matters incidental to the main purpose of the
investigation but which is appropriate in a thorough investigation.
Oftentimes, such information cannot readily be segregated.
(4) The following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a(k)(5) from subsections (c)(3), (d), (e)(1),
(e)(4) (G), (H) and (I) and (f): Loan Guaranty Fee Personnel and Program
Participant Records--VA (17 VA 26).
(5) This exemption applies to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(6) For the reasons set forth, the system of records listed in
paragraph (c)(4) of this section is exempt under 5 U.S.C. 552a(k)(5)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of
background suitability investigations to the existence of the
investigation and reveal that such persons are subjects of that
investigation. Since release of such information to subjects of an
investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in revealing
the identity of a confidential source.
[[Page 74]]
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such an
individual or to grant access to an investigative file would disclose
the identity of confidential sources and reveal confidential information
supplied by these sources.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose sufficient information to
disclose the identity of a confidential source and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This would
compromise the ability to conduct background suitability investigations.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance and necessity of specific
information from a confidential source in the early stages of an
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established regarding suitability for VA approval as a fee appraiser or
compliance inspector.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation for suitability for VA approval, information may
be supplied to the investigator which relates to matters incidental to
the main purpose of the investigation but which is appropriate in a
thorough investigation. Oftentimes, such information cannot readily be
segregated and disclosure might jeopardize the identity of a
confidential source.
(Authority: 5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)
[48 FR 29847, June 29, 1983]
Secs. 1.583--1.584 [Reserved]
National Cemeteries
Authority: Sections 1.601 to 1.633 issued under 38 U.S.C. 501, 2306,
chapter 24.
Source: Sections 1.600 to 1.633 issued at 43 FR 26571, June 21,
1978, unless otherwise noted.
Sec. 1.600 [Reserved]
Sec. 1.601 Advisory Committee on Cemeteries and Memorials.
Responsibilities in connection with Committee authorized by 38
U.S.C. chapter 24 are as follows:
(a) The Director, National Cemetary System will schedule the
frequency of meetings, make presentations before the Committee,
participate when requested by the Committee, evaluate Committee reports
and recommendations and make recommendations to the Secretary based on
Committee actions.
(b) The Committee will evaluate and study cemeterial, memorial and
burial benefits proposals or problems submitted by the Secretary or
Director, National Cemetary System, and make recommendations as to
course of action or solution. Reports and recommendations will be
submitted to the Secretary for transmission to Congress.
[43 FR 26571, June 21, 1978, as amended at 61 FR 27281, May 31, 1996]
Sec. 1.602 Names for national cemetery activities.
(a) Responsibility. The Secretary is responsible for naming national
cemeteries. The Director, National Cemetary System, is responsible for
naming activities and features therein, such as drives, walks, or
special structures.
[[Page 75]]
(b) Basis for names. The names of national cemetery activities may
be based on physical and area characteristics, the nearest important
city (town), or a historical characteristic related to the area. Newly
constructed interior thoroughfares for vehicular traffic in national
cemetery activities will be known as drives. To facilitate location of
graves by visitors, drives will be named after cities, counties or
States or after historically notable persons, places or events.
Sec. 1.603 Gifts and donations.
(a) Gifts and donations will be accepted only after it has been
determined that the donor has a clear understanding that title thereto
passes to, and is vested in, the United States, and that the donor
relinquishes all control over the future use or disposition of the gift
or donation, with the following exceptions:
(1) Carillons will be accepted with the condition that the donor
will provide the maintenance and the operator or the mechanical means of
operation. The time of operation and the maintenance will be coordinated
with the superintendent of the national cemetery.
(2) Articles donated for a specific purpose and which are usable
only for that purpose may be returned to the donor if the purpose for
which the articles were donated cannot be accomplished.
(3) If the donor directs that the gift is donated for a particular
use, those directions will be carried out insofar as they are proper and
practicable and not in violation of Department of Veterans Affairs
policy.
(4) When considered appropriate and not in conflict with the purpose
of the national cemetery, the donor may be recognized by a suitable
inscription on those gifts. In no case will the inscription give the
impression that the gift is owned by, or that its future use is
controlled by, the donor. Any tablet or plaque, containing an
inscription will be of such size and design as will harmonize with the
general nature and design of the gift.
(b) Officials and employees of the Department of Veterans Affairs
will not solicit contributions from the public nor will they authorize
the use of their names, the name of the Secretary, or the name of the
Department of Veterans Affairs by an individual or organization in any
campaign or drive for money or articles for the purpose of making a
donation to the Department of Veterans Affairs. This restriction does
not preclude discussion with the individual offering the gift relative
to the appropriateness of the gift offered.
[43 FR 26571, June 21, 1978, as amended at 61 FR 27282, May 31, 1996]
Secs. 1.604--1.619 [Reserved]
Sec. 1.620 Eligibility for burial.
Section 2402 of title 38, United States Code, bestows eligibility
for burial in any open cemetery in the National Cemetery System. The
following rules in paragraphs (a) through (c) of this section state
conditions in addition to those imposed by statute. To be eligible for
burial in a national cemetery:
(a) A United States citizen who served in an allied armed force, as
provided in 38 U.S.C. 2402(4), must have been a citizen of the United
States at the time of entry on such service and at the time of his or
her death.
(b) A minor child of an eligible person, as provided in 38 U.S.C.
2402(5), must have been at the time of his or her death under 21 years
old or under 23 years old if pursuing a course of instruction at an
approved educational institution.
(c) An unmarried adult child of an eligible person, as provided in
38 U.S.C. 2402(5), must have been physically or mentally disabled and
incapable of self support.
(Authority: 38 U.S.C. 2402)
[61 FR 27282, May 31, 1996]
Sec. 1.621 Disinterments from national cemeteries.
(a) Interments of eligible decedents in national cemeteries are
considered permanent and final. Disinterment will be permitted only for
cogent reasons and with the prior written authorization of the National
Cemetery Area Office Director or Cemetery Director responsible for the
cemetery involved. Disinterment from a national cemetery will be
approved only when all living
[[Page 76]]
immediate family members of the decedent, to include the person who
initiated the interment (whether or not he or she is a member of the
immediate family), give their written consent, or when a court order or
State instrumentality of competent jurisdiction directs the
disinterment. Immediate family members are defined as surviving spouse,
if not remarried, all adult children of the decedent, appointed
guardian(s) of minor children, the appointed guardian of the surviving
unremarried spouse or of the adult child(ren) of the decedent. When the
person who initiated the interment is the remarried spouse, his or her
written consent will not be required. In the absence of a surviving
unremarried spouse and children, the decedent's parents will be
considered immediate family members.
(Authority: 38 U.S.C. 501; 2404)
(b) All requests for authority to disinter remains will be submitted
on VA Form 40-4970, Request for Disinterment, and will include the
following information:
(1) A full statement of reasons for the proposed disinterment.
(2) Notarized statements by all eligible living immediate family
members of the decedent, to include the person who initiated the
interment (whether or not he or she is a member of the immediate
family), that they consent to the proposed disinterment.
(3) A notarized statement, by the person requesting the disinterment
that those who supplied affidavits comprise all the living immediate
family members of the deceased.
(Authority: 38 U.S.C. 2404)
(c) In lieu of the documents required in paragraph (b) of this
section, an order of a court of competent jurisdiction will be
considered. The Department of Veterans Affairs or officials of the
cemetery should not be made a party to the court action since this is a
matter among the family members involved.
(d) [Reserved]
(e) Any disinterment that may be authorized under this section must
be accomplished without expense to the Government.
(The reporting and recordkeeping requirements contained in paragraph (b)
have been approved by the Office of Management and Budget under OMB
control number 2900-0365)
[43 FR 26571, June 21, 1978, as amended at 47 FR 50860, Nov. 10, 1982;
49 FR 34483, Aug. 31, 1984; 54 FR 6521, Feb. 13, 1989]
Secs. 1.622--1.629 [Reserved]
Sec. 1.630 Headstones and markers.
(a) Types of Government headstones and markers and inscriptions will
be in accordance with policies approved by the Secretary.
(b) Inscriptions on Government headstones, markers, and private
monuments will be in accordance with policies and specifications of the
Director, National Cemetery System.
(c) A memorial headstone or marker furnished for a deceased veteran
by the Government may be erected in a private cemetery or in a national
cemetery section established for this purpose. The headstones or markers
for national cemeteries will be of the standard design authorized for
the cemetery in which they are to be erected. In addition to the
authorized inscription, the words ``In Memory Of'' are mandatory.
(Authority: 38 U.S.C. 501)
[43 FR 26571, June 21, 1978, as amended at 57 FR 44123, Sept. 24, 1992;
61 FR 27282, May 31, 1996]
Sec. 1.631 [Reserved]
Sec. 1.632 Headstone and marker application required.
(a) Headstones and markers for graves in national cemeteries shall
be ordered from the Record of Interment (VA Form 40-4956) prepared by
the national cemetery superintendent at the time of interment. No
further application is required.
(b) Submission of VA Form 40-1330, Application for Headstone or
Marker, is required for the purpose of:
(1) Ordering a Government headstone or marker for any unmarked grave
of any eligible veteran buried in a private or local cemetery.
[[Page 77]]
(2) Ordering a Government headstone or marker for any unmarked grave
in a post cemetery of the Armed Forces.
(3) Ordering a Government memorial headstone or marker for placement
in a national cemetery, in a private or local cemetery and any post
cemetery of the Armed Forces.
Sec. 1.633 Group memorial monuments.
(a) Definitions of terms. For the purpose of this section, the
following definitions apply:
(1) Group--all the known and unknown dead who perished in a common
military event.
(2) Memorial Monument--a monument commemorating veterans, whose
remains have not been recovered or identified. Monuments will be
selected in accordance with policies established under 38 CFR 1.630.
(3) Next of kin--recognized in order: Surviving spouse; children,
according to age; parents, including adoptive, stepparents, and foster
parents; brothers or sisters, including half or stepbrothers and
stepsisters; grandparents; grandchildren; uncles or aunts; nephews or
nieces; cousins; and/or other lineal descendent.
(4) Documentary evidence--Official documents, records, or
correspondence signed by an Armed Services branch historical center
representative attesting to the accuracy of the evidence.
(b) The Secretary may furnish at government expense a group memorial
monument upon request of next of kin. The group memorial monument will
commemorate two or more identified members of the Armed Forces,
including their reserve components, who died in a sanctioned common
military event, (e.g., battle or other hostile action, bombing or other
explosion, disappearance of aircraft, vessel or other vehicle) while in
active military, naval or air service, and whose remains were not
recovered or identified, were buried at sea, or are otherwise
unavailable for interment.
(c) A group memorial monument furnished by VA may be placed only in
a national cemetery in an area reserved for such purpose. If a group
memorial monument has already been provided under this regulation or by
any governmental body, e.g., the American Battle Monuments Commission,
to commemorate the dead from a common military event, an additional
group memorial monument will not be provided by VA for the same purpose.
(d) Application for a group memorial monument shall be submitted in
a manner specified by the Secretary. Evidence used to establish and
determine eligibility for a group memorial monument will conform to
paragraph (a)(4) of this section.
(Authority: 38 U.S.C. 501, 2403)
[57 FR 44124, Sept. 24, 1992]
Inventions by Employees of Department of Veterans Affairs
Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat.
811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O.
10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.
Sec. 1.650 Purpose.
The purpose of these regulations is to prescribe the procedure to be
followed in determining and protecting the respective rights of the
United States Government and of Department of Veterans Affairs employees
who make inventions.
[21 FR 10377, Dec. 28, 1956, as amended at 61 FR 29658, June 12, 1996]
Sec. 1.651 Definitions.
The terms as used in the regulations concerning inventions by
employees of the Department of Veterans Affairs are defined as follows:
(a) The term invention includes any art, machine, manufacture,
design, or composition of matter, or any new and useful improvement
thereof, or any variety of plant, which is or may be patentable under
the patent laws of the United States.
(b) The term employee or Government employee means any officer or
employee, civilian or military, of the Department of Veterans Affairs.
Part-time, without compensation (WOC) employees and part-time
consultants are included.
[[Page 78]]
(c) The term Secretary of Commerce means the Under Secretary of
Commerce for Technology.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61
FR 29658, June 12, 1996]
Sec. 1.652 Criteria for determining rights to employee inventions.
(a) The criteria to be applied in determining the respective rights
of the Government and of the employee-inventor in and to any invention
subject to these provisions shall be in accordance with the Uniform
Patent Policy regulations found at 37 CFR 501.6 and 501.7.
(b) Ownership in and to inventions arising under Cooperative
Research and Development Agreements (CRADAs) pursuant to 15 USC 3710a
shall be governed by the provisions of the pertinent CRADA, as
authorized by the Federal Technology Transfer Act.
(Authority: 15 U.S.C. 3710a; 37 CFR part 501)
[61 FR 29658, June 12, 1996]
Sec. 1.653 Delegation of authority.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV is authorized to act for the
Secretary of Veterans Affairs in matters concerning patents and
inventions, unless otherwise required by law. The determination of
rights to an invention as between the Government and the employee where
there is no cooperative research and development agreement shall be made
by the General Counsel, Deputy General Counsel or the Assistant General
Counsel for Professional Staff Group IV, in accordance with 37 CFR part
500.
[62 FR 14822, Mar. 28, 1997]
Sec. 1.654 Patenting of inventions.
Any invention owned by the Government under the criteria as set
forth in 37 CFR 501.6 should be protected by an application for a
domestic patent and other necessary documents executed by the employee
inventor prepared by or through the General Counsel, Deputy General
Counsel or Assistant General Counsel for Professional Staff Group IV,
unless some other agency has primary interest or it is decided to
dedicate the invention to the public. Such dedication requires approval
of the Secretary of Commerce. Applications on behalf of the Government
for foreign patents may be made if determined to be in the public
interest. The payment of necessary expenses in connection with any
application filed or patent obtained under this section by the
Department of Veterans Affairs is authorized.
[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61
FR 29658, June 12, 1996; 62 FR 14822, Mar. 28, 1997]
Sec. 1.655 Government license in invention of employee.
If an invention is made by an employee and it is determined that the
employee inventor is entitled to full ownership under 37 CFR 501.6,
subject to a nonexclusive, irrevocable, royalty-free license in the
Government with power to grant sublicenses for all Governmental
purposes, it shall be the duty of the employee inventor to notify the
Office of General Counsel of the status of the patent application,
including the patent application number, so that the Department may
protect the interests reserved to the Government under 37 CFR 501.6.
[61 FR 29658, June 12, 1996]
Sec. 1.656 Information to be submitted by inventor.
(a) In the case of an invention or believed invention, the inventor
will prepare a statement for submission to his or her immediate
superior. It will be submitted regardless of where the ownership is
believed to exist. The statement will consist of two parts:
(1) One part of the statement will be a disclosure of the invention
sufficient to permit the preparation of a patent applicant. It shall
consist of a description, including where applicable, of the parts or
components of the invention as shown on the drawings or blueprints,
accompanied further by a description of the construction and operation
of the invention. Photographs of the invention may be included. The
inventor should state pertinent prior art known to him or her, and set
forth in detail as clearly as possible the respects which his or her
invention differs.
[[Page 79]]
(2) The other part of the statement will set forth the circumstances
attending the making of the invention. It will include the full name and
address of the inventor; the grade and title of his or her position;
whether full time or part time; his or her duties at the time the
invention was made; the facts pertinent to a determination whether the
invention bore a direct relation to or was made in consequence of such
official duties; whether there was, and if so, the terms of any special
agreement or understanding with respect to use or manufacture of his or
her invention; date of the invention; when and where it was conceived,
constructed and tested; whether it was made entirely during working
hours; whether, and to what extent there was a contribution by the
Government of any of the following: Facilities; equipment; materials or
supplies; funds; information; time or services of other Government
employees on duty. When the invention is disclosed through publication,
or in consultation with a manufacturer or attorney, simultaneous
notification of the publication shall be given to the Office of General
Counsel. A copy of the article will accompany the notification.
(b) The inventor's immediate superior shall promptly review the
statement of the employee inventor for completeness and accuracy, and
shall certify that the employee's statement of circumstances attending
the invention is or is not correct, giving reasons if pertinent. The
file should then be submitted through the facility head (or
administration heads or top staff officials in the case of Central
Office employees) to the General Counsel together with any comments or
recommendations.
[61 FR 29658, June 12, 1996]
Sec. 1.657 Determination of rights.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV will make a determination of
rights subject to review where required by the Secretary of Commerce.
The determination will be in accordance with 37 CFR 501.7.
[61 FR 29658, June 12, 1996, as amended at 62 FR 14822, Mar. 28, 1997]
Sec. 1.658 Right of appeal.
In accordance with 37 CFR 501.8, the employee has a right of appeal
to the Secretary of Commerce within 30 days of receipt of the
Department's determination of ownership rights. The decision reached by
the Secretary of Commerce will be communicated to the employee.
[61 FR 29658, June 12, 1996]
Sec. 1.659 Relationship to incentive awards program.
Procedures set out in the regulations concerning inventions by
employees of the Department of Veterans Affairs are not affected by the
submission or proposed submission of an employee suggestion or idea on
an item which may be patentable. Consideration of an item for a
determination of ownership rights and also for an incentive award will
proceed simultaneously, usually on separate correspondence. An employee
suggestion or copies and extracts of the file may be forwarded to the
General Counsel by the reviewing or awarding authority, or by the
facility head, for an ownership determination where the employee idea or
suggestion involves an invention. The employee shall be directed to
submit a disclosure of invention in accordance with these regulations if
such has not been previously submitted.
[31 FR 5291, Apr. 2, 1966, as amended at 61 FR 29659, June 12, 1996]
Sec. 1.660 Expeditious handling.
No patent may be granted where the invention has been in public use
or publicly disclosed for more than one year before filing of a patent
application. Hence, submissions involving inventions should be made as
promptly as possible in order to avoid delay which might jeopardize
title to the invention or impair the rights of the inventor or the
Government.
[61 FR 29659, June 12, 1996]
[[Page 80]]
Sec. 1.661 Information to be kept confidential.
All information pertaining to inventions and pending patent
applications is confidential, and employees having access to such
information are forbidden to disclose or reveal the same except as
required in the performance of their official duties.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.662 Provisions of regulations made a condition of employment.
The provisions of the regulations concerning inventions by employees
of the Department of Veterans Affairs shall be a condition of employment
of all employees.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.663 Licensing of Government-owned inventions.
(a) The licensing of Government-owned inventions under VA control
and custody will be conducted pursuant to the regulations on the
licensing of Government-owned inventions contained in 37 CFR part 404,
and 15 U.S.C. 3710a, as appropriate.
(b) Any person whose application for a license in an invention under
VA control and custody has been denied; whose license in such an
invention has been modified or terminated, in whole or in part; or who
timely filed a written objection in response to a proposal to grant an
exclusive or partially exclusive license in an invention under VA
control or custody, may, if damaged, appeal any decision or
determination concerning the grant, denial, interpretation,
modification, or termination of a license to the Secretary of Veterans
Affairs. Such appeal shall be in writing; shall set forth with
specificity the basis of the appeal; and shall be postmarked not later
than 60 days after the action being appealed. Upon request of the
appellant, such appeal may be considered by one to three persons
appointed on a case-by-case basis by the Secretary of Veterans Affairs.
Such a request will be granted only if it accompanies the written
appeal. Appellant may appear and be represented by counsel before such a
panel, which will sit in Washington, DC. If the appeal challenges a
decision to grant an exclusive or partially exclusive license in an
invention under VA control or custody, the licensee shall be furnished a
copy of the appeal, shall be given the opportunity to respond in
writing, may appear and be represented by counsel at any hearing
requested by appellant, and may request a hearing if appellant has not,
under the same terms and conditions, at which the appellant may also
appear and be represented by counsel.
[61 FR 29659, June 12, 1996]
Secs. 1.664--1.666 [Reserved]
Administrative Control of Funds
Source: Sections 1.670 to 1.673 issued at 48 FR 30622, July 5, 1983,
unless otherwise noted.
Sec. 1.670 Purpose.
The following regulations establish a system of administrative
controls for all appropriations and funds available to the Department of
Veterans Affairs to accomplish the following purposes:
(a) Establish an administrative subdivision of controls to restrict
obligations and expenditures against each appropriation or fund to the
amount of the apportionment or the reapportionment; and
(b) Fix responsibility for the control of appropriations or funds to
high level officials who bear the responsibility for apportionment or
reapportionment control.
(Authority: 31 U.S.C. 1514)
Sec. 1.671 Definitions.
For the purpose of Secs. 1.670 through 1.673, the following
definitions apply:
(a) Administrative subdivision of funds. An administrative
subdivision of funds is any administrative subdivision of an
appropriation or fund which makes funds available in a specified amount
for the purpose of controlling apportionments or reapportionments.
(b) Allotment. An allotment is an authorization by the Director,
Office of Budget and Finance, to department and staff office heads
(allottees) to incur obligations within specified amounts, during a
specified period,
[[Page 81]]
pursuant to an Office of Management and Budget apportionment or
reapportionment action. The creation of an obligation in excess of an
allotment is a violation of the administrative subdivision of funds.
(c) Allowance. An allowance is a subdivision below the allotment
level, and is a guideline which may be issued by department or staff
office heads (allottees) to facility directors and other officials,
showing the expenditure pattern or operating budget they will be
expected to follow in light of the program activities contemplated by
the overall VA budget or plan of expenditure. The creation of an
obligation in excess of an allowance is not a violation of the
administrative subdivision of funds.
(Authority: 31 U.S.C. 1514)
Sec. 1.672 Responsibilities.
(a) The issuance of an allotment to the administration and staff
office heads (allottees) is required and is the responsibility of the
Director, Office of Budget and Finance. The sum of such allotments shall
not be in excess of the amount indicated in the apportionment or
reapportionment document.
(b) The issuance of an allowance is discretionary with department or
staff office heads (allottees), as an allowance is merely a management
device which allottees may utilize in carrying out their
responsibilities. Allottees are responsible for keeping obligations
within the amounts of their allotments, whether allowances are issued or
not.
(c) The Director, Office of Budget and Finance, is responsible for
requesting apportionments and reapportionments from the Office of
Management and Budget. Administration and staff heads shall promptly
request that an appropriation or fund be reapportioned if feasible
whenever it appears that obligations may exceed the level of the
apportionment.
(Authority: 31 U.S.C. 1514)
Sec. 1.673 Responsibility for violations of the administrative subdivision of funds.
(a) In the event an allotment or an apportionment is exceeded except
in the circumstances described in paragraph (b) of this section, the
following factors will be considered in determining which official, or
officials, are responsible for the violation.
(1) Knowledge of circumstances which could lead to an allotment or
apportionment being exceeded;
(2) Whether the official had received explicit instructions to
continue or cease incurring obligations;
(3) Whether any action was taken in contravention of or with
disregard for, instructions to monitor obligations incurred;
(4) Whether the official had the authority to curtail obligations by
directing a change in the manner of operations of the department or
staff office; or
(5) Any other facts which tend to fix the responsibility for the
obligations which resulted in the allotment or apportionment being
exceeded.
(b) In the event that the sum of the allotments made in a particular
fiscal year exceeds the amount apportioned by the Office of Management
and Budget, and the apportionment is subsequently exceeded because of
this action, the official who made the excess allotments will be the
official responsible for the violation.
(Authority: 31 U.S.C. 1514)
Use of Official Mail in the Location and Recovery of Missing Children
Source: Sections 1.700 through 1.705 issued at 52 FR 10889, Apr. 6,
1987, unless otherwise noted.
Sec. 1.700 Purpose.
Sections 1.700 through 1.705 of this title provide a Missing
Children Official Mail Program in the Department of Veterans Affairs.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48387, Sept. 19, 1995]
Sec. 1.701 Contact person for missing children official mail program.
The Department of Veterans Affairs contact person for the Missing
Children Official Mail Program is: Mrs. Roslynd R. Stewart, Information
Management Service (045A4), Office of Policy and Program Assistance,
Office of Information Resources Management, Office of Management,
Department of Veterans
[[Page 82]]
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420-0001. Telephone:
(202) 565-8949.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.702 Policy.
(a) The Department of Veterans Affairs will supplement and expand
the national effort to assist in the location and recovery of missing
children by maximizing the economical use of missing children
information in domestic official mail and publications directed to
members of the public and Department of Veterans Affairs employees.
(b) The Department of Veterans Affairs will insert pictures and
biographical information related to missing children in a variety of
official mail originating at the Department of Veterans Affairs
automation centers. In addition, pictures and biographical information
are printed in self-mailers and other Department of Veterans Affairs
publications (newsletters, bulletins, etc.).
(c) The National Center for Missing and Exploited Children (National
Center) is the sole source from which the Department of Veterans Affairs
will acquire the camera-ready and other photographic and biographical
materials to be disseminated for use by Department of Veterans Affairs
organizational units. The information is ordered and disseminated by
Information Management Service.
(d) The Department of Veterans Affairs will remove all printed
inserts and other materials from circulation or other use within a
three-month period from the date the National Center notifies the
Department of Veterans Affairs that a child whose picture and
biographical information have been made available to the Department of
Veterans Affairs has been recovered or that permission of the parent(s)
or guardian to use the child's photograph and biographical information
has been withdrawn. The National Center is responsible for immediately
notifying the Department of Veterans Affairs contact person, in writing,
of the need to withdraw from circulation official mail and other
materials related to a particular child. Photographs which were
reasonably current as of the time of the child's disappearence shall be
the only acceptable form of visual medium or pictorial likeness used in
official mail.
(e) The Department of Veterans Affairs will give priority to
official mail that is addressed to:
(1) Members of the public that will be received in the United
States, its territories and possessions; and
(2) Inter- and intra-agency publications and other media that will
also be widely disseminated to Department of Veterans Affairs employees.
(f) The Department of Veterans Affairs will avoid repetitive
mailings of material to the same individuals.
(g) All Department of Veterans Affairs employee suggestions and/or
recommendations for additional cost-effective opportunities to use
photographs and biographical data on missing children will be provided
to the Department of Veterans Affairs contact person.
(h) These shall be the sole regulations for the Department of
Veterans Affairs and its component organizational units.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301).
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Sec. 1.703 Percentage estimate.
It is the Department of Veterans Affairs objective that 20 percent
of its first class official mail addressed to the public contain missing
children photographs and information.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.704 [Reserved]
Sec. 1.705 Restrictions on use of missing children information.
Missing children pictures and biographical data shall not be:
(a) Printed on official envelopes and other materials ordered and
stocked in quantities that represent more than a 90-day supply.
(b) Printed on blank pages or covers of publications that may be
included in the Superintendent of Documents Sales Program or be
distributed to depository libraries.
[[Page 83]]
(c) Inserted in any envelope or publication the contents of which
may be construed to be inappropriate for association with the missing
children program.
(d) Inserted in any envelope where the insertion would increase the
postage cost for the item being mailed.
(e) Placed on letter-size envelopes on the official indicia, the
area designated for optical character readers (OCRs), bar code read
area, and return address area in accordance with the Office of Juvenile
Justice and Delinquency Prevention guidelines and U.S. Postal Service
standards.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Homeless Claimants
Sec. 1.710 Homeless claimants: Delivery of benefit payments and correspondence.
(a) All correspondence and all checks for benefits payable to
claimants under laws administered by the Department of Veterans Affairs
shall be directed to the address specified by the claimant. The
Department of Veterans Affairs will honor for this purpose any address
of the claimant in care of another person or organization or in care of
general delivery at a United States post office. In no event will a
claim or payment of benefits be denied because the claimant provides no
mailing address.
(Authority: 38 U.S.C. 5103; 5120)
(b) To ensure prompt delivery of benefit payments and
correspondence, claimants who seek personal assistance from Veterans
Benefits Counselors when filing their claims shall be counseled as to
the importance of providing his or her current mailing address and, if
no address is provided, the procedures for delivery described in
paragraph (d) of this section.
(Authority: 38 U.S.C. 5103; 5120)
(c) The Department of Veterans Affairs shall prepare and distribute
to organizations specially serving the needs of veterans and the
homeless, including but not limited to shelters, kitchens and private
outreach facilities, information encouraging such organizations to
counsel individuals on the importance of providing mailing addresses to
the Department of Veterans Affairs and advising them of this regulation.
(Authority: 38 U.S.C. 5103; 5120)
(d) If a claimant fails or refuses to provide a current mailing
address to the Department of Veterans Affairs, all correspondence and
any checks for benefits to which the claimant is entitled will be
delivered to the Agent Cashier of the regional office which adjudicated
or is adjudicating the claim in the case of compensation, pension or
survivors' benefits, to the Agent Cashier of the Department of Veterans
Affairs facility closest to the educational institution or training
establishment attended by a claimant in the case of education benefits,
or to the Agent Cashier of any other Department of Veterans Affairs
facility deemed by the Agency to be appropriate under the circumstances
of the particular case. The claimant, within 30 days after issuance, may
obtain delivery of any check or correspondence held by an Agent Cashier
upon presentation of proper identification. Checks unclaimed after 30
days will be returned to the Department of the Treasury and the
correspondence to the regional office or facility of jurisdiction.
Thereafter, the claimant must request the reissuance of any such check
or item of correspondence by written notice to the Department of
Veterans Affairs.
(Authority: 38 U.S.C. 5103; 5120)
[53 FR 22654, June 17, 1988]
Appeals From Decisions of Contracting Officers Under the Contract
Disputes Act of 1978
Authority: Sections 1.780 through 1.783 issued under 41 U.S.C. 601-
613, 38 U.S.C. 501.
Source: Sections 1.780 through 1.783 appear at 47 FR 12340, Mar. 23,
1982, unless otherwise noted.
Sec. 1.780 Board of Contract Appeals--jurisdiction.
The Department of Veterans Affairs Board of Contract Appeals
(referred to in Secs. 1.780 through 1.783 as the Board) shall consider
and determine appeals from decisions of contracting officers pursuant to
the Contract Disputes Act of 1978 (41 U.S.C. 601-613) relating to
[[Page 84]]
contracts made by (a) the Department of Veterans Affairs or (b) any
other executive agency when such agency or the Administrator for Federal
Procurement Policy has designated the Board to decide the appeal.
[47 FR 12340, Mar. 23, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.781 Organization and address of the Board.
(a) The Board consists of a Chair, Vice Chair, and other members,
all of whom are attorneys at law duly licensed by any State,
commonwealth, territory, or the District of Columbia. In general, the
appeals are assigned to a panel of at least 3 members who decide the
case by a majority vote. Board Members are designated Administrative
Judges.
(b) The Board's mailing address is 810 Vermont Avenue, NW.,
Washington, DC 20420.
Sec. 1.782 Policy and procedure.
(a) Rules of procedure. Appeals to the Board are processed in
accordance with Rules of Procedure adopted by the Board in compliance
with the guidelines issued by the Office of Federal Procurement Policy
under the provisions of the Contract Disputes Act of 1978 (41 U.S.C.
601, 607(h)). There is no further administrative appeal within the
Department of Veterans Affairs from final decisions rendered by the
Board.
(b) Application and interpretation of rules. It is impracticable to
articulate a rule to fit every possible circumstance which may be
encountered. The rules, therefore, are applied and interpreted to
provide, to the fullest extent practicable, informal expeditious, and
inexpensive resolution of disputes. For that purpose, the Board is
authorized to require contracting officers and other Department of
Veterans Affairs officials to furnish the Board with such information,
technical data, and other assistance as the Board may require in the
performance of its duties.
Sec. 1.783 Rules of the Board.
(a) Rule 1; appeals from final decisions and requests for final
decisions--(1) Notice of appeal. Notice of an appeal shall be in writing
and mailed to or otherwise furnished the Board within 90 days from the
date of receipt of a contracting officer's final decision. A copy
thereof shall be furnished the contracting officer from whose decision
the appeal is taken.
(2) Failure to issue a final decision. (i) Where the contractor has
submitted a claim of $50,000 or less to the contracting officer and, in
writing, has requested a decision within 60 days from receipt of the
request, and the contracting officer has not done so, the contractor may
file a notice of appeal as provided in paragraph (a)(1) of this section,
citing the failure of the contracting officer to issue a decision.
(ii) Where the contractor has submitted a properly certified claim
in excess of $50,000 to the contracting officer, or pursuant to the
Disputes Clause, has requested a decision by the contracting officer
which presently involves no monetary amount, and the contracting officer
has failed to issue a decision within a reasonable time, taking into
account such factors as the size and complexity of the claim, the
contractor may file a notice of appeal as provided in paragraph (a)(1)
of this section, citing the failure of the contracting officer to issue
a decision.
(3) Stay of proceedings. Upon the docketing of an appeal filed
pursuant to the provisions of paragraph (a)(2) of this section, the
Board may, at its option, stay further proceedings pending issuance of a
final decision by the contracting officer within such period of time as
determined by the Board.
(4) Request for final decision. In lieu of filing a notice of appeal
under paragraph(a)(2) of this section, the contractor, in the event of
undue delay or refusal on the part of the contracting officer, may
request that the Board direct the contracting officer to issue a
decision in a specified period of time, as determined by the Board.
(b) Rule 2; notice of appeal, contents of. A notice of appeal should
indicate that an appeal is being taken and should identify the contract
by number, the department, agency, or bureau involved in the dispute,
the decision from which the appeal is taken, and the amount in dispute,
if known. The notice of appeal should be signed by the appellant (the
contractor taking the
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appeal) or by the appellant's duly authorized representative or
attorney. The complaint referred to in paragraph (f) of this section
(Rule 6) may be filed with the notice of appeal, or the appellant may
designate the notice of appeal as a complaint, if it otherwise fulfills
the requirements of a complaint.
(c) Rule 3; docketing of appeals. When a notice of apppeal in any
form has been received by the Board, it shall be docketed promptly.
Notice in writing shall be given to the appellant with a copy of
Secs. 1.780 through 1.783 and to the contracting officer.
(d) Rule 4; preparation, content, organization, forwarding, and
status of appeal file--(1) Duties of contracting officer. Within 30 days
of receipt of notice that an appeal has been filed, the contracting
officer shall assemble and transmit to the Board through the Office of
General Counsel an appeal file consisting of all documents pertinent to
the appeal, including:
(i) The decision from which the appeal is taken;
(ii) The contract, including specifications and pertinent
amendements, plans, and drawings;
(iii) All correspondence between the parties relevant to the appeal,
including the letter or letters of claim in response to which the
decision was issued;
(iv) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witnesses on the matter
in dispute made prior to the filing of the notice of appeal with the
Board; and
(v) Any additional information considered relevant to the appeal.
Within the same time above specified, the Office of General Counsel
shall furnish the appellant a copy of each document transmitted to the
Board, except those in paragraph (d)(1)(ii) of this section. As to the
latter, a list furnished appellant indicating specific contractual
documents transmitted will suffice.
(2) Duties of the appellant. Within 30 days after receipt of a copy
of the appeal file assembled by the contracting officer, the appellant
shall transmit to the Board any documents not contained therein which
are considered to be relevant to the appeal, and shall furnish two
copies of such documents to the government trial attorney.
(3) Organization of appeal file. Documents in the appeal file may be
originals or legible facsimiles or authenticated copies, and shall be
arranged in chronological order where practicable, numbered
sequentially, tabbed, and indexed to identify the contents of the file.
(4) Lengthy documents. Upon request by either party the Board may
waive the requirement to furnish to the other party copies of bulky,
lengthy, or out-of-size documents in the appeal file when it would be
burdensome to do so. At the time a party files with the Board a document
as to which such a waiver has been granted the party shall notify the
other party that the document or a copy thereof is available for
inspection at the office of the Board or of the party filing same.
(5) Status of documents in appeal file. Documents contained in the
appeal file are considered, without further action by the parties, as
part of the record upon which the Board will render its decision.
However, a party may object, for reasons stated, to consideration of a
particular document or documents reasonably in advance of hearing or, if
there is no hearing, of settling the record. If such objection is made
the Board shall remove the document or documents from the appeal file
and permit the party offering the document to move its admission as
evidence in accordance with paragraphs (m) and (t) of this section
(Rules 13 and 20).
(6) Dispensing with appeal file requirements. Notwithstanding the
provisions of paragraph (d)(1) through (5) of this section, the filing
of the documents in paragraph (d)(1) and (2) of this section may be
dispensed with by the Board either upon request of the appellant in the
notice of appeal or thereafter upon stipulation of the parties.
(e) Rule 5; dismissal for lack of jurisdiction. Any motion addressed
to the jurisdiction of the Board shall be promptly filed. Hearing on the
motion shall be afforded on application of either party. However, the
Board may defer its decision on the motion pending hearing on both the
merits and the motion. The Board shall have the right at any time and on
its own initiative to raise the
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issue of its jurisdiction to proceed with a particular case, and shall
do so by an appropriate order, affording the parties an opportunity to
be heard thereon.
(f) Rule 6; pleadings and motions--(1) Appellant. Within 30 days
after receipt of notice of docketing of the appeal, the appellant shall
file with the Board an original and two copies of a complaint setting
forth simple, concise, and direct statements of each of its claims.
Appellant shall also set forth the basis, with appropriate reference to
contract provisions, of each claim and the dollar amount claimed, to the
extent known. This pleading shall fulfill the generally recognized
requirements of a complaint, although no particular form is required.
Upon receipt of the complaint, the Board shall serve a copy of it upon
the Government. Should the complaint not be received within 30 days,
appellant's claim and appeal may, if in the opinion of the Board the
issues before the Board are sufficiently defined, be deemed to set forth
its complaint and the Government shall be so notified.
(2) Government. Within 30 days from receipt of the complaint, or the
aforesaid notice from the Board, the Government shall prepare and file
with the Board an original and two copies of an answer thereto. The
answer shall set forth simple, concise, and direct statements of the
Government's defenses to each claim asserted by appellant, including any
affirmative defenses available. Upon receipt of the answer, the Board
shall serve a copy upon appellant. Should the answer not be received
within 30 days, the Board may, in its discretion, enter a general denial
on behalf of the Government, and the appellant shall be so notified.
(3) Motions. The Board may entertain and rule upon appropriate
motions.
(g) Rule 7; amendments of pleadings or record--(1) More definite
statement and reply. The Board, upon its own initiative or upon
application by a party, may order a party to make a more definite
statement of the complaint or answer, or to reply to an answer.
(2) Amendments. The Board may, in its discretion, and within the
proper scope of the appeal, permit either party to amend its pleadings
upon conditions fair to both parties. When issues within the proper
scope of the appeal, but not raised by the pleadings, are tried by
express or implied consent of the parties, or by permission of the
Board, they shall be treated in all respects as if they had been raised
therein. In such instances, motions to amend the pleadings to conform to
the proof may be entered, but are not required. If evidence is objected
to at a hearing on the ground that it is not within the issues raised by
the pleadings, it may be admitted within the proper scope of the appeal,
provided, however, that the objecting party may be granted a continuance
if necessary to enable that party to meet such evidence.
(h) Rule 8; hearing election. After filing of the Government's
answer or notice from the Board that it has entered a general denial on
behalf of the Government, each party shall advise whether it elects a
hearing, as prescribed in paragraphs (q) through (y) of this section
(Rules 17 through 25), or whether it elects to submit its case on the
record without a hearing, as prescribed in paragraph (k) of this section
(Rule 11).
(i) Rule 9; prehearing briefs. Based on an examination of the
pleadings, and its determination of whether the arguments and
authorities addressed to the issues are adequately set forth therein,
the Board may, in its discretion, require the parties to submit
prehearing briefs in any case in which a hearing has been elected
pursuant to paragraph (h) of this section (Rule 8). If the Board does
not require prehearing briefs, either party may, upon appropriate and
sufficient notice to the other party, furnish a prehearing brief to the
Board. In any case where a prehearing brief is submitted, it shall be
filed with the Board at least 15 days prior to the date set for hearing,
and a copy simultaneously furnished to the other party.
(j) Rule 10; prehearing or presubmission conference. (1) Whether the
case is to be submitted pursuant to paragraph (k) of this section (Rule
11), or heard pursuant to paragraphs (q) through (y) of this section
(Rules 17 through 25), the Board may, upon its own initiative, or upon
the application of either party, arrange a telephone conference or
require the parties to appear before an
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Administrative Judge or examiner of the Board for a conference to
consider:
(i) Simplification, clarification, or severence of the issues;
(ii) The possibility of obtaining stipulations, admissions,
agreements, and rulings on admissibility of documents, understandings on
matters already of record, or similar agreements that will avoid
unnecessary proof;
(iii) Agreements and rulings to facilitate discovery;
(iv) Limitation of the number of expert witnesses, or avoidance of
similar cumulative evidence;
(v) The possibility of agreement disposing of any or all of the
issues in dispute; and
(vi) Such other matters as may aid in the disposition of the appeal.
(2) The Administrative Judge or examiner of the Board shall make
such rulings and orders as may be appropriate to achieve settlement by
agreement of the parties or to aid in the disposition of the appeal. The
results of pretrial conferences, including any rulings and orders, shall
be reduced to writing by the Administrative Judge or examiner and this
writing shall thereafter constitute a part of the record.
(k) Rule 11; submission without a hearing. Either party may elect to
waive a hearing and submit its case upon the record as settled pursuant
to paragraph (m) of this section (Rule 13). Submission of a case without
hearing does not relieve the parties from the necessity of proving the
facts supporting their allegations or defenses. In accordance with
paragraph (m) of this section (Rule 13), affidavits, depositions,
admissions, answers to interrogatories, and stipulations may be employed
to supplement other documentary evidence in the record. The Board may
permit such submissions to be supplemented by oral argument
(transcribed, if requested), and by briefs filed in accordance with
paragraph (w) of this section (Rule 23).
(l) Rule 12; optional small claims (expedited) and accelerated
procedures. These procedures are available solely at the election of the
appellant.
(1) 12.1 Elections to utilize small claims (expedited) and
accelerated procedures. (i) In appeals where the amount in dispute is
$50,000 or less, the appellant may elect to have the appeal processed
under a small claims (expedited) procedure requiring decision of the
appeal, whenever possible, within 120 days after the Board receives
written notice of the appellant's election. The details of this
procedure appear in paragraph (1)(2) of this section (rule 12). An
appellant may elect the accelerated procedure set forth in paragraph
(l)(3) of this section (Rule 12) in any appeal eligible for small claims
(expedited) procedure.
(ii) In appeals where the amount in dispute is $100,000 or less, the
appellant may elect to have the appeal processed under an accelerated
procedure requiring decision of the appeal, whenever possible, within
180 days after the Board receives written notice of the appellant's
election. The details of this procedure appear in paragraph (l)(3) of
this section (Rule 12).
(iii) The appellant's election of either the small claims
(expedited) procedure or the accelerated procedure may be made by
written notice within 60 days after receipt of notice of docketing the
appeal unless such period is extended by the Board for good cause. The
election may not be withdrawn except with permission of the Board and
for good cause.
(iv) In deciding whether the small claims (expedited) procedure or
the accelerated procedure is applicable to a given appeal, the Board
shall determine the amount in dispute.
(2) 12.2 The small claims (expedited) procedure. (i) In cases
proceeding under the small claims (expedited) procedure, the following
time periods shall apply:
(A) Within 10 days from the Government's first receipt from either
the appellant or the Board of a copy of the appellant's notice of
election of the small claims (expedited) procedure, the Government shall
send the Board a copy of the contract, the contracting officer's final
decision, and the appellant's claim letter or letters, if any; remaining
documents required under paragraph (d) of this section (Rule 4) shall be
submitted in accordance with times specified in that rule unless the
Board otherwise directs;
(B) Within 15 days after the Board has acknowledged receipt of
appellant's notice of election, the assigned Administrative Judge shall
take the
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following actions, if feasible, in an informal meeting or a telephone
conference with both parties: (1) Identify and simplify the issues; (2)
establish a simplified procedure appropriate to the particular appeal
involved; (3) determine whether either party wants a hearing and, if so,
fix a time and place therefor; (4) require the Government to furnish all
the additional documents relevant to the appeal; and (5) establish an
expedited schedule for resolution of the appeal.
(ii) Pleadings, discovery, and other prehearing activity will be
allowed only as consistent with the requirement to conduct the hearing
on the date scheduled or, if no hearing is scheduled, to close the
record on a date that will allow decisions within the 120-day limit. The
Board, in its discretion, may impose shortened time periods for any
actions prescribed or allowed under this section 1.783, as necessary to
enable the Board to decide the appeal within the 120-day limit, allowing
whatever time, up to 30 days, that the Board considers necessary for the
preparation of the decision after closing the record and the filing of
briefs, if any.
(iii) Written decisions by the Board in cases processed under the
small claims (expedited) procedure will be brief and contain only
summary findings of fact and conclusions. Decisions will be rendered for
the Board by a single Administrative Judge. If there has been a hearing,
the Administrative Judge presiding at the hearing may, in the judge's
discretion, at the conclusion of the hearing and after entertaining such
oral arguments as deemed appropriate, render on the record oral summary
findings of fact, conclusions, and a decision of the appeal. Whenever
such an oral decision is rendered, the Board will subsequently furnish
the parties a typed copy of such oral decision for record and payment
purposes and to establish the starting date for the period for filing a
motion for reconsideration under paragraph (cc) of this section (Rule
29).
(iv) Decisions under this procedure shall have no value as precedent
and, in the absence of fraud, shall be final and conclusive and may not
be appealed or set aside.
(3) 12.3 The accelerated procedure. (i) In cases proceeding under
the accelerated procedure, the parties are encouraged, to the extent
possible consistent with adequate presentation of their factual and
legal positions, to waive pleadings, discovery, and briefs. Pleadings,
discovery, and other prehearing activity will be allowed only as
consistent with the requirement to conduct the hearing on the date
scheduled or, if no hearing is scheduled, to close the record on a date
that will allow decision within the 180-day limit. The Board, in its
discretion, may shorten time periods prescribed or allowed under this
Sec. 1.783, as necessary to enable the Board to decide the appeal within
180 days after the Board has received the appellant's notice of election
of the accelerated procedure, and may reserve 30 days for preparation of
the decision.
(ii) Written decisions by the Board in cases processed under the
accelerated procedure will normally be brief and contain only summary
findings of fact and conclusions. Decisions will be rendered for the
Board by a single Administrative Judge with the concurrence of the
Chair, Vice Chair, or other designated Administrative Judge, or by a
majority among these two and an additional designated member in case of
disagreement. Alternatively, in cases where the amount in dispute is
$10,000 or less as to which the accelerated procedure has been elected
and in which there has been a hearing, the single Administrative Judge
presiding at the hearing may, with the concurrence of both parties, at
the conclusion of the hearing and after entertaining such oral arguments
as deemed appropriate, render on the record oral summary findings of
fact, conclusions, and a decision of the appeal. Whenever such an oral
decision is rendered, the Board will subsequently furnish the parties a
typed copy of such oral decision for record and payment purposes, and to
establish the starting date for the period for filing a motion for
reconsideration under paragraph (cc) of this section (Rule 29).
(4) 12.4 Motions for reconsideration in cases under paragraph (l)
of this section (Rule 12). Motions for reconsideration of cases decided
under either the small
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claims (expedited) procedure or the accelerated need not be decided
within the original 120-day or 180-day limits, but all such motions
shall be processed and decided rapidly so as to fulfill the intent of
paragraph (l) of this section (Rule 12).
(m) Rule 13; settling the record. (1) The record upon which the
Board's decision will be rendered consists of the documents furnished
under paragraphs (d) and (l) of this section (Rules 4 and 12), to the
extent admitted in evidence, and the following items, if any: pleadings
prehearing conference memoranda or orders, prehearing briefs,
depositions or interrogatories received in evidence, admissions,
stipulations, transcripts of conferences and hearings, hearing exhibits,
posthearing briefs, and documents which the Board has specifically
designated be made a part of the record. The record will, at all
reasonable times, be available for inspection by the parties at the
office of the Board.
(2) Except as the Board may otherwise order in its discretion, no
evidence shall be received after completion of an oral hearing or, in
cases submitted on the record, after notification by the Board that the
case is ready for decision.
(3) The weight to be attached to any evidence of record will rest
within the sound discretion of the Board. The Board may in any case
require either party, with appropriate notice to the other party, to
submit additional evidence on any matter relevant to the appeal.
(n) Rule 14; discovery--depositions--(1) General policy and
protective orders. The parties are encouraged to engage in voluntary
discovery procedures. In connection with any deposition or other
discovery procedure, the Board may make any order required to protect a
party or person from annoyance, embarrassment, or undue burden or
expense. Such orders may include limitations on the scope, method, time
and place for discovery, and provision for protecting the secrecy of
confidential information or documents.
(2) When depositions permitted. After an appeal has been docketed
and complaint filed, the parties may agree to, or the Board may order,
upon application of either party, the taking of testimony of any person
by deposition upon oral examination or written interrogatories before
any officer authorized to administer oaths at the place of examination,
for use as evidence or for purpose of discovery. The application for
order shall specify whether the purpose of the deposition is discovery
or for use as evidence.
(3) Orders on depositions. The time, place, and manner of taking
depositions shall be as agreed upon by the parties or, failing such
agreement, governed by order of the Board.
(4) Use as evidence. No testimony taken by deposition shall be
considered as part of the evidence in the hearing of an appeal until
such testimony is offered and received in evidence at such hearing. It
will not ordinarily be received in evidence if the deponent is present
and can testify at the hearing. In such instances, however, the
deposition may be used to contradict or impeach the testimony of the
deponent given at the hearing. In cases submitted on the record, the
Board may, in its discretion, receive depositions to supplement the
record.
(5) Expenses. Each party shall bear its own expenses associated with
the taking of any deposition.
(6) Subpoenas. Where appropriate, a party may request the issuance
of a subpoena under the provisions of paragraph (u) of this section
(Rule 21).
(o) Rule 15; interrogatories to parties, admissions of fact, and
production and inspection of documents. After an appeal has been
docketed and complaint filed with the Board, a party may serve on the
other party: (1) Written interrogatories to be answered separately in
writing, signed under oath and answered or objected to within 30 days
after service; (2) a request for the admission of specified facts and/or
the authenticity of any documents, to be answered or objected to within
30 days after service, the factual statements and the authenticity of
the documents to be deemed admitted upon failure of a party to respond
to the request; and (3) a request for the production, inspection, and
copying of any documents or objects, not privileged, which reasonably
may lead to the discovery of admissible evidence, to be answered or
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objected to within 30 days after service. Any discovery engaged in under
this rule shall be subject to the provisions of paragraph (n)(1) of this
section (Rule 14(A)) with respect to general policy and protective
orders, and paragraph (ii) of this section (Rule 35) with respect to
sanctions.
(p) Rule 16; service of papers other than subpoenas. Papers shall be
served personally or by mail, addressed to the party upon whom service
is to be made. Copies of complaints, answers, replies, and briefs shall
be filed directly with the Board for service. The party filing any other
paper with the Board shall send a copy thereof to the opposing party,
noting on the paper filed with the Board that a copy has been so
furnished. Subpoenas shall be served as provided in paragraph (u) of
this section (Rule 21).
(q) Rule 17; hearings, where and when held. Hearings will be held at
such places determined by the Board to best serve the interests of the
parties and the Board. Hearings will be scheduled at the discretion of
the Board with due consideration to the regular order of appeals,
requirements of paragraph (l) of this section (Rule 12), and other
pertinent factors. On request or motion by either party and for good
cause, the Board may, in its discretion, adjust the date of a hearing.
(r) Rule 18; notice of hearings. The parties shall be given at least
15 days notice of the time and place set for hearings. In scheduling
hearings, the Board will consider the desires of the parties and the
requirement for just and inexpensive determination of appeals without
unnecessary delay. Notices of hearing shall be promptly acknowledged by
the parties.
(s) Rule 19; unexcused absence of a party. The unexcused absence of
a party at the time and place set for hearing will not be occasion for
delay. In the event of such absence, the hearing will proceed and the
case will be regarded as submitted by the absent party as provided in
paragraph (k) of this section (Rule 11).
(t) Rule 20; hearings, nature of and examination of witnesses--(1)
Nature of hearings. Hearings shall be as informal as may be reasonable
and appropriate under the circumstances. Appellant and respondent may
offer such relevant evidence as they deem appropriate and as would be
admissible under the Federal Rules of Evidence, subject, however, to the
sound discretion of the presiding Administrative Judge or examiner in
supervising the extent and manner of presentation of such evidence. In
general, admissibility will depend on relevancy and materiality.
Evidence which may not be admissible under the Federal Rules of Evidence
may be admitted in the discretion of the presiding Administrative Judge
or examiner. The weight to be attached to evidence presented in any
particular form will be within the discretion of the Board. Stipulations
of fact agreed upon by the parties may be regarded and used as evidence
at the hearing. The parties may stipulate the testimony that would be
given by a witness if the witness were present. The Board may in any
case require evidence in addition to that offered by the parties.
(2) Examination of witnesses. Witnesses before the Board will be
examined orally under oath or affirmation, unless the presiding
Administrative Judge or examiner shall otherwise order. If the testimony
of a witness is not given under oath, the Board may advise the witness
that his or her statements may be subject to the provisions of 18 U.S.C.
287 and 1001, and any other provision of law imposing penalties for
knowingly making false representations in connection with claims against
the United States or in any matter within the jurisdiction of any
department or agency thereof.
(u) Rule 21; subpoenas--(1) General. Upon written request of either
party filed with the Board, or on the Board's own initiative, the
Administrative Judge to whom a case is assigned or who is otherwise
designated by the Chair may issue a subpoena requiring:
(i) Testimony at a deposition--the deposing of a witness in the city
or county where the witness resides or is employed or transacts business
in person, or at another location convenient for the witness that is
specifically determined by the Board;
(ii) Testimony at a hearing--the attendance of a witness for the
purpose of taking testimony at a hearing; and
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(iii) Production of books and papers--in addition to paragraph
(u)(1)(i) or (ii) of this section, the production by the witness at the
deposition or hearing of books and papers designated in the subpoena.
(2) Voluntary cooperation. Each party is expected (i) to cooperate
and make available witnesses and evidence under its control as requested
by the other party, without issuance of a subpoena, and (ii) to secure
voluntary attendance of desired third-party witnesses and production of
desired third-party books, papers, documents, or tangible things
whenever possible.
(3) Requests for subpoenas--(i) A request for a subpoena shall
normally be filed at least:
(A) 15 days before a scheduled deposition where the attendance of a
witness at a deposition is sought;
(B) 30 days before a scheduled hearing where the attendance of a
witness at a hearing is sought.
In its discretion, the Board may honor requests for subpoenas not made
within these time limitations.
(ii) A request for a subpoena shall state the reasonable scope and
general relevance to the case of the testimony and of any books and
papers sought.
(4) Requests to quash or modify. Upon written request by the person
subpoenaed or by a party, made within 10 days after service but in any
event not later than the time specified in the subpoena for compliance,
the Board may (i) quash or modify the subpoena if it is unreasonable and
oppressive or for other good cause shown, or (ii) require the person in
whose behalf the subpoena was issued to advance the reasonable cost of
producing subpoenaed books and papers. Where circumstances require, the
Board may act upon such a request at any time after a copy has been
served upon the opposing party.
(5) Form; issuance--(i) Every subpoena shall state the name of the
Board and the title of the appeal, and shall command each person to whom
it is directed to attend and give testimony and, if appropriate, to
produce specified books and papers at a time and place therein
specified. In issuing a subpoena to a requesting party, the
Administrative Judge shall sign the subpoena and may, in his or her
discretion, enter the name of the witness and otherwise leave it blank.
The party to whom the subpoena is issued shall complete the subpoena
before service.
(ii) Where the witness is located in a foreign country, a letter
rogatory or subpoena may be issued and served under the circumstances
and in the manner provided in 28 U.S.C. 1781-1784.
(6) Service. (i) The party requesting issuance of a subpoena shall
arrange for service.
(ii) A subpoena requiring the attendance of a witness at a
deposition or hearing may be served at any place. A subpoena may be
served by a United States marshal or deputy marshal, or by any other
person who is not a party and not less than 18 years of age. Service of
a subpoena upon a person named therein shall be made by personally
delivering a copy to that person and tendering the fees for one day's
attendance and the mileage provided by 28 U.S.C. 1821 or other
applicable law; however, where the subpoena is issued on behalf of the
Government, money payments need not be tendered in advance of
attendance.
(iii) The party at whose request a subpoena is issued shall be
responsible for the payment of fees and mileage of the witness and of
the officer who serves the subpoena. The failure to make payment of such
charges on demand may be deemed by the Board as a sufficient ground for
striking the testimony of the witness and the books or papers the
witness has produced.
(7) Contumacy or refusal to obey a subpoena. In case of contumacy or
refusal to obey a subpoena by a person who resides, is found, or
transacts business within the jurisdiction of a United States District
Court, the Board will apply to the Court through the Attorney General of
the United States for an order requiring the person to appear before the
Board or a member thereof to give testimony or produce evidence or both.
Any failure of any such person to obey the order of the Court may be
punished by the Court as a contempt thereof.
(v) Rule 22; copies of papers. When books, records, papers, or
documents have been received in evidence, true copies thereof, or of
such part thereof as may be material or relevant, may be
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substituted therefor, during the hearing or at the conclusion thereof.
(w) Rule 23; posthearing briefs. Posthearing briefs may be submitted
upon such terms as may be agreed to by the parties and the presiding
Administrative Judge or examiner at the conclusion of the hearing.
(x) Rule 24; transcript of proceedings. Testimony and argument at
hearings shall be reported verbatim, unless the Board otherwise orders.
Waiver of transcript may be especially suitable for hearings under
paragraph (l)(2) of this section (Rule 12.2). Transcripts or copies of
the proceedings shall be supplied to the parties at the actual cost of
duplication.
(y) Rule 25; withdrawal of exhibits. After a decision has become
final, the Board may, upon request and after notice to the other party,
in its discretion, permit the withdrawal of original exhibits, or any
part thereof, by the party entitled thereto. The substitution of true
copies of exhibits or any part thereof may be required by the Board in
its discretion as a condition of granting permission for such
withdrawal.
(z) Rule 26; representation--the appellant. An individual appellant
may appear before the Board in person; a corporation by one of its
officers; and a partnership or joint venture by one of its members; or
any of these by an attorney at law duly licensed in any State,
commonwealth, territory, the District of Columbia, or in a foreign
country. An attorney representing an appellant shall file a written
notice of appearance with the Board.
(aa) Rule 27; representation--the government. Government counsel
may, in accordance with their authority, represent the interests of the
Government before the Board. They shall file notices of appearance with
the Board, and notice thereof will be given appellant or appellant's
attorney in the form specified by the Board from time to time.
(bb) Rule 28; decisions. Decisions of the Board will be made in
writing and authenticated copies of the decision will be forwarded
simultaneously to both parties. The rules of the Board and all final
orders and decisions (except those required for good cause to be held
confidential and not cited as precedents) shall be open for public
inspection at the office of the Board in Washington, DC. Decisions of
the Board will be made solely upon the record, as described in paragraph
(m) of this section (Rule 13).
(cc) Rule 29; motions for reconsideration. A motion for
reconsideration may be filed by either party. It shall set forth
specifically the grounds relied upon to support the motion. The motion
shall be filed within 30 days from the date of the receipt of a copy of
the decision of the Board by the party filing the motion.
(dd) Rule 30; suspension and dismissal without prejudice. Whenever
appellant and the Government counsel are in agreement as to disposition
of the controversy, the Board may suspend or terminate further
processing of the appeal. If, thereafter, the Board is advised by either
party that the controversy has not been disposed of by agreement, the
case shall be restored to the Board's calendar without loss of position.
In other cases where the Board is unable to proceed with disposition for
reasons not within the control of the Board, an appeal may be placed in
a suspense status. Where the suspension has continued, or may continue,
for an inordinate length of time, the Board, in its discretion, may
dismiss such appeal from its docket without prejudice to restoration
when the cause of suspension has been removed. Unless either party or
the Board acts within three years to reinstate any appeal dismissed
without prejudice, the dismissal shall be deemed to be with prejudice.
(ee) Rule 31; dismissal or default for failure to prosecute or
defend. Whenever a record discloses the failure of either party to file
documents required by these rules, respond to notices or correspondence
from the Board, comply with orders of the Board, or otherwise indicates
an intention not to continue the prosecution or defense of an appeal,
the Board may, in the case of a default by the appellant, issue an order
to show cause why the appeal should not be dismissed or, in the case of
a default by the Government, issue an order to show cause why the Board
should not act thereon pursuant to paragraph (ii)
[[Page 93]]
of this section (Rule 35). If good cause is not shown, the Board may
take appropriate action.
(ff) Rule 32; remand from court. Whenever any court remands a case
to the Board for further proceedings, each of the parties shall, within
20 days of such remand, submit a report to the Board recommending
procedures to be followed so as to comply with the court's order. The
Board shall consider the reports and enter special orders governing the
handling of the remanded case. To the extent the court's directive and
time limitations permit, such orders shall conform to these rules.
(gg) Rule 33; time, computation, and extensions. (1) Where possible,
procedural actions should be taken in less time than the maximum time
allowed. Where appropriate and justified, however, extensions of time
will be granted. All requests for extensions of time shall be in
writing.
(2) In computing any period of time, the day of the event from which
the designated period of time begins to run shall not be included, but
the last day of the period shall be included unless it is a Saturday,
Sunday, or a legal holiday, in which event the period shall run to the
end of the next business day.
(hh) Rule 34; ex parte communications. No member of the Board or of
the Board's staff shall entertain, nor shall any person directly or
indirectly involved in an appeal submit to the Board or the Board's
staff, off the record, any evidence, explanation, analysis, or advice,
whether written or oral, regarding any matter at issue in an appeal.
This provision does not apply to consultation among Board members nor to
ex parte communications concerning the Board's administrative functions
or procedures.
(ii) Rule 35; sanctions. If any party fails or refuses to obey an
order issued by the Board, the Board may make such order as it considers
necessary to the just and expeditious conduct of the appeal.
(jj) Rule 36; effective date and applicability. These rules shall
apply (1) mandatorily, to all appeals relating to contracts entered into
on or after March 1, 1979, and (2) at the contractor's election, to
appeals relating to earlier contracts, with respect to claims pending
before the contracting officer on March 1, 1979 or initiated thereafter.
[47 FR 12340, Mar. 23, 1982, as amended at 60 FR 48029, Sept. 18, 1995]
Part-Time Career Employment Program
Source: Sections 1.891 through 1.897 appear at 44 FR 55172, Sept.
25, 1979, unless otherwise noted.
Sec. 1.891 Purpose of program.
Many individuals in society possess great productive potential which
goes unrealized because they cannot meet the requirements of a standard
workweek. Permanent part-time employment also provides benefits to other
individuals in a variety of ways, such as providing older individuals
with a gradual transition into retirement, providing employment
opportunities to handicapped individuals or others who requires a
reduced workweek, providing parents opportunities to balance family
responsibilities with the need for additional income, and assisting
students who must finance their own education or vocational training. In
view of this, the Department of Veterans Affairs will operate a part-
time career employment program, consistent with the needs of its
beneficiaries and its responsibilities.
(Authority: 5 U.S.C. 3401 note)
Sec. 1.892 Review of positions.
Positions becoming vacant, unless excepted as provided by
Sec. 1.897, will be reviewed to determine the feasibility of converting
them to part-time. Among the criteria which may be used when conducting
this review are:
(a) Mission requirements.
(b) Workload.
(c) Employment ceilings and budgetary considerations.
(d) Availability of qualified applicants willing to work part time.
(e) Other criteria based on local needs and circumstances.
(Authority: 5 U.S.C. 3402)
[[Page 94]]
Sec. 1.893 Establishing and converting part-time positions.
Position management and other internal reviews may indicate that
positions may be either converted from full-time or initially
established as part-time positions. Criteria listed in Sec. 1.892 may be
used during these reviews. If a decision is made to convert to or to
establish a part-time position, regular position management and
classification procedures will be followed.
(Authority: 5 U.S.C. 3402)
Sec. 1.894 Annual goals and timetables.
An departmentwide plan for promoting part-time employment
opportunities will be developed annually. This plan will establish
annual goals and set interim and final deadlines for achieving these
goals. This plan will be applicable throughout the agency, but may be
supplemented by field facilities.
(Authority: 5 U.S.C. 3402)
Sec. 1.895 Review and evaluation.
The part-time career employment program will be reviewed through
regular employment reports to determine levels of part-time employment.
This program will also be designated an item of special interest to be
reviewed during personnel management reviews.
(Authority: 5 U.S.C. 3402)
[61 FR 38571, July 25, 1996]
Sec. 1.896 Publicizing vacancies.
When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such
as:
(a) Federal Job Information Centers.
(b) State Employment offices.
(c) VA Recruiting Bulletins.
(Authority: 5 U.S.C. 3402)
Sec. 1.897 Exceptions.
The Secretary of Veterans Affairs, or designees, may except
positions from inclusion in this program as necessary to carry out the
mission of the Department.
(Authority: 5 U.S.C. 3402)
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
Authority: Sections 1.900 to 1.906 issued under 72 Stat. 1114; 38
U.S.C. 501.
Source: Sections 1.900 to 1.906 appear at 32 FR 2613, Feb. 8, 1967,
unless otherwise noted.
Sec. 1.900 Prescription of standards.
The instructions contained in Secs. 1.900 through 1.954 are issued
pursuant to the Federal Claims Collection Act (Pub. L. 89-508 and 97-
365) and the joint regulations thereunder of the Comptroller General of
the United States and the Attorney General of the United States, title
4, chapter II, Code of Federal Regulations. Except as provided in
Sec. 1.903, they constitute standards governing the Department of
Veterans Affairs collection, compromise, suspension or termination of
collection effort, and the referral to the General Accounting Office and
the Department of Justice for litigation of civil claims by the
Department of Veterans Affairs for money or property.
[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42104, Nov. 3, 1987]
Sec. 1.901 Omissions not a defense.
The standards set forth in Secs. 1.900 through 1.954 shall apply to
VA handling of civil claims for money and property but the failure of
the agency to comply with any provision of the standards shall not be
available as a defense for any debtor.
[52 FR 42105, Nov. 3, 1987]
Sec. 1.902 Fraud, antitrust and tax claims excluded.
(a) The standards set forth in Secs. 1.900 through 1.954 do not
apply to the handling of any claim as to which there is an indication of
fraud, the presentation of a false claim, or misrepresentation on the
part of the debtor or any other party having an interest in the claim,
or to any claim based in whole or in part on violation of the antitrust
laws. Only the Department of Justice has authority to compromise,
suspend, or terminate collection action on such claims.
[[Page 95]]
(b) Upon identification of a claim of any of the types described in
paragraph (a) of this section (an indication of fraud, the presentation
of a false claim, or misrepresentation on the part of the debtor or any
other party having an interest in the claim), VA shall refer the matter
promptly to the Department of Justice. At its discretion, the Department
of Justice may determine that no action is warranted and return the
claim to VA for further handling in accordance with Secs. 1.900 through
1.954.
(c) VA has no authority to consider or compromise Federal tax
claims, as to which differing exemptions, administrative considerations,
enforcement considerations, and statutes apply.
(d) Sections 1.900 through 1.954 do not apply to claims between
Federal agencies. VA shall attempt to resolve interagency claims by
negotiation. Any unresolved claims shall be referred to the General
Accounting Office (GAO) for final resolution.
(Authority: 37 U.S.C. 3711)
[52 FR 42105, Nov. 3, 1987]
Sec. 1.903 Settlement, waiver, or compromise under other statutory or regulatory authority.
Nothing in Secs. 1.900 through 1.954 is intended to preclude VA
settlement, waiver, or compromise of claims under statutes other than
the Federal Claims Collection Act. See, e.g. 38 U.S.C. 3720(a)(4) and
(5) and 5302(a) and 42 U.S.C. 2651-2653. Nor are Secs. 1.900 through
1.954 intended to preclude Department of Veterans Affairs settlement,
waiver, or compromise of claims under Sec. 17.48(f) of this chapter for
the cost of medical or hospital care furnished pursuant to Sec. 17.47
(c)(1) or (d) of this chapter to persons who are entitled to hospital
care or medical or surgical treatment or to reimbursement for all or
part of the cost thereof by reason of ``workmen's compensation'' or
``employer's liability'' statutes, State or Federal; right to
maintenance and cure in admiralty; or statutory or other relationships
with third parties, giving rise to liability for damages because of
negligence or other legal wrong.
[32 FR 2613, Feb. 8, 1967, as amended at 52 FR 42105, Nov. 3, 1987]
Sec. 1.904 Conversion claims.
The instructions contained in Secs. 1.900 through 1.954 are directed
primarily to the recovery of money on behalf of the Government and the
circumstances in which the Department of Veterans Affairs may dispose of
claims for less than the full amount. In addition, the Department of
Veterans Affairs will assert demands for the return of specific property
or the payment of its value in cases of conversion.
Sec. 1.905 Subdivision of claims not authorized.
Claims shall not be subdivided in order to avoid the monetary
ceiling established by 31 U.S.C. 3711(a)(2). A debtor's liability
arising from a particular transaction or contract shall be considered as
a single claim in determining whether the claim is one of less than
$20,000, exclusive of interest and administrative costs, either for
purposes of suspension or termination of collection action (Secs. 1.940
through 1.943) or for determining the applicability of the $20,000 limit
with respect to compromise (Secs. 1.930 through 1.938).
(Authority: 31 U.S.C. 3711)
[52 FR 42105, Nov. 3, 1987]
Sec. 1.906 Required administrative proceedings.
Nothing contained in Secs. 1.900 through 1.954 is intended to
foreclose the right of any debtor to appeal or administrative hearing
provided by statute, contract, or applicable Department of Veterans
Affairs Regulation.
Sec. 1.907 Definitions.
(a) For the purpose of Secs. 1.900 through 1.954, the terms claims
and debt are synonymous and interchangeable. They refer to any amount of
money or property which has been determined by an appropriate official
of VA to be owed to the United States by any person, organization or
entity, except another Federal agency.
(b) A debt is considered delinquent if it has not been paid by the
date specified in the initial written notice of indebtedness or
applicable contractual agreement, unless other satisfactory payment
arrangements have been previously made. A debt is also considered
[[Page 96]]
delinquent if the debtor fails to satisfy obligations under a repayment
agreement with VA.
(c) As used in Secs. 1.900 through 1.954, referral for litigation
means referral to the Department of Justice for appropriate legal
actions, except in those specified instances where a case is referred to
VA Regional Counsel for legal action.
(Authority: 31 U.S.C. 3701, 3711)
[52 FR 42105, Nov. 3, 1987]
Standards for Collection of Claims
Authority: Sections 1.910 to 1.921 issued under 72 Stat. 1114; 38
U.S.C. 501.
Source: Sections 1.910 to 1.921 appear at 32 FR 2613, Feb. 8, 1967,
unless otherwise noted.
Sec. 1.910 Aggressive collection action.
The Department of Veterans Affairs will take aggressive action, on a
timely basis with effective followup, to collect all claims for money or
property arising from its activities.
Sec. 1.911 Collection of debts owed by reason of participation in a benefits program.
(a) Scope. This section applies to the collection of debts resulting
from an individual's participation in a benefits program administered by
the Department of Veterans Affairs. It does not apply to the
Department's other claims collection activities. (Note: School liability
debts are governed by Sec. 21.4009; financial institution debts are
subject to chapter II, parts 209, 210, and 240 of title 31, Code of
Federal Regulations; and other debts are governed by part 102 of title 4
of the Code of Federal Regulations.)
(b) Written demands. When the Department of Veterans Affairs has
determined that a debt exists by reason of an administrative decision or
by operation of law, the Department of Veterans Affairs shall promptly
demand, in writing, payment of the debt. The Department of Veterans
Affairs shall notify the debtor of his or her rights and remedies in
connection with the debt and the consequences of failure to cooperate
with collection efforts. Ordinarily, no more than three demand letters,
at intervals of not more than thirty days, will be sent, but letters
subsequent to the initial letter will not be necessary if:
(1) The Secretary determines that further demand would be futile;
(2) The debtor has indicated in writing that he or she does not
intend to pay the debt;
(3) Judicial action to protect the Government's interest is
indicated under the circumstances; or
(4) Collection by offset pursuant to Sec. 1.912a can be made.
(c) Rights and remedies. Subject to limitations referred to in this
paragraph, the debtor has the right to informally dispute the existence
or amount of the debt, to request waiver of collection of the debt, to a
hearing on the waiver request, and to appeal the Department of Veterans
Affairs decision underlying the debt. These rights can be exercised
separately or simultaneously. Except as provided in Sec. 1.912a
(collection by offset), the exercise of any of these rights will not
stay any collection proceeding.
(1) Informal dispute. This means that the debtor writes to the
Department of Veterans Affairs and questions whether he or she owes the
debt or whether the amount is accurate. The Department of Veterans
Affairs will, as expeditiously as possible, review the accuracy of the
debt determination. If the resolution is adverse to the debtor, he or
she may also request waiver of collection as indicated in paragraphs
(c)(2) and (3) of this section.
(2) Request for waiver; hearing on request. The debtor has the right
to request waiver of collection, in accordance with Sec. 1.963 or
Sec. 1.964, and the right to a hearing on the request. Requests for
waivers must be filed in writing. A waiver request must be filed within
the time limit set forth in 38 U.S.C. 5302. If waiver is granted, in
whole or in part, the debtor has a right to refund of amounts already
collected up to the amount waived.
(3) Appeal. The debtor may appeal, in accordance with part 19 of
this title, the decision underlying the debt.
(d) Notification. The Department of Veterans Affairs shall notify
the debtor in writing of the following:
(1) The exact amount of the debt;
(2) The specific reasons for the debt, in simple and concise
language;
[[Page 97]]
(3) The rights and remedies described in paragraph (c) of this
section, including a brief explanation of the concept of, and
requirements for, waiver;
(4) That collection may be made by offset from current or future
Department of Veterans Affairs benefits, subject to Sec. 1.912a; and
(5) That interest and administrative costs may be assessed, in
accordance with Sec. 1.919, as appropriate.
(e) Sufficiency of notification. Notification is sufficient when
sent by ordinary mail directed to the debtor's last known address and
not returned as undeliverable by postal authorities.
(f) Further explanation. Further explanation may be found for--
(1) Appellate rights, in part 19 of this title;
(2) Notification of any decision affecting the payment of benefits
or granting relief, in Sec. 3.103(e);
(3) Right to appeal a waiver decision, in Sec. 1.958;
(4) Refund to a successful waiver applicant of money already
collected, in Sec. 1.967; and
(5) The assessment of interest and administrative costs, in
Sec. 1.919.
(Authority: 38 U.S.C. 5302, 5314)
[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and
amended at 52 FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989]
Sec. 1.912 Collection by offset.
(a) Authority and scope. In accordance with part 102 of title 4 of
the Code of Federal Regulations, VA shall collect debts by
administrative offset from any payments made by VA to an individual
indebted to VA. This section does not pertain to offset from either
current salary or from benefit payments, but does apply to offset from
all other VA payments, including an employee's final salary check and
lump-sum leave payment. Procedures for offset from benefit payments and
current salary are found in Sec. 1.912a and Secs. 1.980 through 1.994.
NOTE: VA cannot offset or refer for the purpose of offset, either under
the authority of this section or under any other authority found in
Secs. 1.900 through 1.954 and Secs. 1.980 through 1.984, any debt
described in 38 U.S.C. 3726 unless the requirements set forth in that
section have been met.
(b) Notification. Prior to initiation of administrative offset, if
not provided in the initial notice of indebtedness, VA is required to
provide the debtor with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures from
the specified VA payment, the date of commencement of offset, and the
exact amount to be offset;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest either the existence or amount of the debt
or the proposed offset schedule, or if applicable, to request a waiver
of collection of the debt, or to request a hearing on any of these
matters;
(5) That commencement of offset will begin, unless the debtor makes
a written request for the administrative relief discussed in paragraph
(b)(4) of this section within 30 days of the date of this notice; and
(6) The oppportunity to enter into a written agreement with VA to
repay the debt in lieu of offset.
(c) Deferral of offset. (1) If the debtor, within 30 days of the
date of the notification required by paragraph (b) of this section,
disputes in writing the existence or amount of the debt or the amount of
the scheduled offset, offset shall not commence until the dispute is
reviewed and a decision is rendered by VA adverse to the debtor.
(2) If the debtor, within 30 days of the date of the required
notification by VA, requests in writing the waiver of collection of the
debt in accordance with Sec. 1.963 or Sec. 1.964, offset shall not
commence until VA has made an initial decision to deny the waiver
request.
(3) If the debtor, within 30 days of the required notification by
VA, requests in writing a hearing on the issues found in paragraphs
(c)(1) and (2) of this section, offset shall not commence until a
decision is rendered by VA on the issue which is the basis of the
hearing.
(d) Exceptions. (1) Offset may commence prior to either resolution
of a dispute or decision on a waiver request as discussed in paragraph
(c) of this section, if collection of the debt would
[[Page 98]]
be jeopardized by deferral of offset. In such a case, notification
pursuant to paragraph (b) of this section shall be made at the time
offset begins or as soon thereafter as possible.
(2) If the United States has obtained a judgment against the debtor,
offset may commence without the notification required by paragraph (b)
of this section. However, a waiver request filed in accordance with the
time limits and other requirements of Sec. 1.963 or Sec. 1.964 will be
considered, even if filed after a judgment has been obtained against the
debtor. If waiver is granted, in whole or in part, refund of amounts
already collected will be made in accordance with Sec. 1.967.
(e) Hearing. (1) After a debtor requests a hearing, VA shall notify
the debtor of the form of the hearing to be provided; i.e., whether the
hearing will either be oral or paper. If an oral hearing is determined
to be proper by the hearing official, the notice shall set forth the
date, time, and location of the hearing. If the hearing is to be a paper
review, the debtor shall be notified that he or she should submit his or
her position and arguments in writing to the hearing official by a
specified date, after which the record shall be closed. This date shall
give the debtor reasonable time to submit this information.
(2) Unless otherwise required by law, an oral hearing under this
paragraph is not required to be a formal evidentiary type of hearing.
(3) A debtor who requests a hearing shall be provided an oral
hearing if VA determines that the matter cannot be resolved by review of
documentary evidence. Whenever an issue of credibility or veracity is
involved, an oral hearing will always be provided the debtor. For
example, the credibility or veracity of a debtor is always an issue
whenever the debtor requests a waiver of collection of the debt. Thus, a
hearing held in conjunction with a waiver request will always be an oral
hearing. If a determination is made to provide an oral hearing, the
hearing official may offer the debtor the opportunity for a hearing by
telephone conference call. If this offer is rejected or if the hearing
official declines to offer a telephone conference call, the debtor shall
be provided an oral hearing permitting the personal appearance of the
debtor, his or her personal representative, and witnesses. Witnesses
shall testify under oath or affirmation.
(4) In all other cases where a debtor requests a hearing, a paper
hearing shall be provided. The debtor shall be provided an opportunity
to submit material for the record. A paper hearing shall consist of a
review of the written evidence of record by the designated hearing
official.
(f) When collecting multiple debts by administrative offset, VA will
apply the recovered amounts to those debts in accordance with the best
interests of the United States, as determined by the facts and
circumstances of the particular case, paying special attention to
applicable statutes of limitation. In accordance with 4 CFR 102.3(b)(3),
VA may not initiate offset to collect a debt more than 10 years after
VA's right to collect the debt first accrued (with certain exceptions as
explained in Sec. 102.3(b)(3)).
(Authority: 31 U.S.C. 3716)
[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.912a Collection by offset--from VA benefit payments.
(a) Authority and scope. VA shall collect debts governed by
Sec. 1.911 of this part by offset against any current or future VA
benefit payments to the debtor. Unless paragraphs (c) or (d) of this
section apply, offset shall commence promptly after notification to the
debtor as provided in paragraph (b) of this section. Certain military
service debts shall be collected by offset against current or future
compensation or pension benefit payments to the debtor under authority
of 38 U.S.C. 5301(c), as provided in paragraph (e) of this section.
(b) Notification. Unless paragraph (d) of this section applies,
offset shall not commence until the debtor has been notified in writing
of the matters described in Sec. 1.911a(c) and (d) and paragraph (c) of
this section.
(c) Deferral of offset. (1) If the debtor, within thirty days of the
date of the notification required by paragraph (b) of this section,
disputes, in writing, the
[[Page 99]]
existence or amount of the debt in accordance with Sec. 1.911a(c)(1),
offset shall not commence until the dispute is reviewed as provided in
Sec. 1.911a(c)(1) and unless the resolution is adverse to the debtor.
(2) If the debtor, within thirty days of the date of notification
required by paragraph (b) of this section, requests, in writing, waiver
of collection in accordance with Sec. 1.963 or Sec. 1.964, as
applicable, offset shall not commence until the Department of Veterans
Affairs has made an initial decision on waiver.
(3) If the debtor, within thirty days of the notification required
by paragraph (b) of this section, requests, in writing, a hearing on the
waiver request, no decision shall be made on the waiver request until
after the hearing has been held.
(d) Exceptions. Offset may commence prior to the resolution of a
dispute or a decision on a waiver request if collection of the debt
would be jeopardized by deferral of offset. In such case, notification
pursuant to Sec. 1.911a(d) shall be made at the time offset begins or as
soon thereafter as possible.
(Authority: 38 U.S.C. 5314, Ch. 37)
(e) Offset of military service debts. (1) In accordance with 38
U.S.C. 5301(c), VA shall collect by offset from any current or future
compensation or pension benefits payable to a veteran under laws
administered by VA, the uncollected portion of the amount of any
indebtedness associated with the veteran's participation in a plan
prescribed in subchapter I or II of 10 U.S.C. chapter 73.
(2) Offsets of a veteran's compensation or pension benefit payments
to recoup indebtedness to the military services as described in
paragraph (e)(1) of this section shall only be made by VA when the
military service owed the debt has:
(i) Determined the amount of the indebtedness of the veteran;
(ii) Certified to VA that due process in accordance with the
procedures prescribed in 31 U.S.C. 3716 have been provided to the
veteran; and
(iii) Requested collection of the total debt amount due.
(3) Offset from any compensation or pension benefits under the
authority of 38 U.S.C. 5301(c) shall not exceed 15% of the net monthly
compensation or pension benefit payment. The net monthly compensation or
pension benefit payment is defined as the authorized monthly
compensation or pension benefit payment less all current deductions.
(Authority: 38 U.S.C. 5301(c) and 5314)
[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57
FR 47263, Oct. 15, 1992]
Sec. 1.913 Personal interview with debtor.
The Department of Veterans Affairs will, to the extent feasible,
undertake personal interviews whenever requested by debtors and in other
cases having regard for the amounts involved and the proximity of agency
representatives to the debtors.
Sec. 1.914 Contact with debtor's employing agency.
When a debtor of the Department of Veterans Affairs is employed by
another agency of the Federal Government or is a member of the Military
establishment or the Coast Guard and collection by offset cannot be
accomplished in accordance with 5 U.S.C. 5514, the Department of
Veterans Affairs will contact the employing agency in an effort to
arrange with the debtor for payment of the indebtedness by allotment or
otherwise in accordance with section 206 of Executive Order 11222 of May
8, 1965 (30 FR 6469; 3 CFR 1965 Supp., pp. 130, 131).
Sec. 1.915 Suspension or revocation of eligibility.
Demands on debtors who are lenders, contractors, brokers, or other
participants in Department of Veterans Affairs programs will include
notification that failure to pay their debts within a reasonable time
may be cause for suspension or disqualification to the extent authorized
by law. Nothing in this section is intended to be in derogation of the
provisions of 38 U.S.C. 3704(b) and 3704(d) as implemented by
Secs. 36.4331 and 36.4361 of this chapter. The failure of any surety to
honor its obligations in accordance with 6 U.S.C. 11 will be reported to
the Treasury Department at once. Prompt and appropriate Department of
Veterans Affairs action
[[Page 100]]
will be taken upon receipt of Treasury Department notification that a
surety's certificate of authority to do business with the Federal
Government has been revoked or forfeited.
Sec. 1.916 Liquidation of collateral.
VA will exercise its rights to liquidate security or collateral and
apply the proceeds to debts due it through use of a power of sale in the
security instrument or a non-judicial foreclosure if the debtor fails to
pay his or her debt, within a reasonable time after demand, unless the
cost of disposing of the collateral will be disproportionate to its
value or the particular circumstances require judicial foreclosure. VA
must provide the debtor with reasonable notice of the sale, and an
accounting of any surplus proceeds, as well as notice of any other
procedures required by law or contract. Collection from other sources,
including liquidation of security or collateral, is not a prerequisite
to requiring payment by a surety or insurance company unless such action
is expressly required by statute or contract.
(Authority: 31 U.S.C. 3711)
[52 FR 42106, Nov. 3, 1987]
Sec. 1.917 Collection in installments.
(a) Whenever feasible, and except as otherwise provided by law,
debts owed to VA together with any interest and administrative costs
assessed under Sec. 1.919, shall be collected in full in one lump sum.
Collection in one lump sum is applicable whether the debt is being
collected by administrative offset or by another method, including
voluntary payment. However, payments may be accepted in regular
installments when the debtor is financially unable to pay the debt in
one lump sum.
(b) In agreeing to accept regular installment payments to liquidate
an outstanding indebtedness, VA shall obtain a legally enforceable
written agreement from the debtor which specifies all of the terms of
the agreement and which contains a provision accelerating the debt in
the event that the debtor defaults. The size and frequency of
installment payments should bear a reasonable relationship to the size
of the debt and the debtor's ability to pay. If possible, the
installment payments should be sufficient in size and frequency to
liquidate the debt in not more than three years. Installment payments of
less than $50 per month shall be accepted only if justified on the
grounds of financial hardship or for some other reasonable cause.
(c) If VA is holding an unsecured claim for administrative
collection, it shall attempt to obtain from a debtor an executed
confess-judgment note in States and jurisdictions where permitted, using
Department of Justice Form 1, or another appropriate Department of
Justice form, whenever the total amount of the deferred installments
will exceed $750. Such notes may also be sought when an unsecured
obligation of a lesser amount is involved. When attempting to obtain
confess-judgment notes, VA shall provide debtors with a written
explanation of the consequences of signing the note, and shall maintain
sufficient documentation to demonstrate that the debtor signed the note
knowingly and voluntarily. Security for deferred payments, other than a
confess-judgment note, may be accepted in appropriate cases. VA may
accept installment payments even if the debtor refuses to execute a
confess-judgment note or to give other security.
(d) If the debtor owes more than one debt and designates how a
voluntary installment payment is to be applied as among these debts,
that designation must be followed by VA. If the debtor does not
designate the application of the payment, VA shall apply payments to the
various debts in accordance with the best interests of the Government as
determined by the facts and circumstances of the particular case, paying
special attention to applicable statutes of limitations.
(Authority: 31 U.S.C. 3711)
[52 FR 42106, Nov.3, 1987]
Sec. 1.918 Exploration of compromise.
VA will attempt to effect compromises, preferably during the course
of personal interviews, in accordance with the standards set forth in
Secs. 1.930 through 1.938 in all cases in which it is ascertained that
the debtor is financially unable to pay the full amount or
[[Page 101]]
in which the litigative risks or the costs of litigation dictate such
action.
[52 FR 42107, Nov. 3, 1987]
Sec. 1.919 Interest.
(a) Except as otherwise provided by statute, contract, or other
regulation to the contrary, VA shall assess:
(1) Interest on all indebtedness to the United States arising as a
result of participation in VA benefit programs which are being paid in
installments,
(2) Interest and administrative costs of collection on debts where
repayment has become delinquent, and
(3) Interest, penalties, and administrative costs on all nonbenefit
debts in accordance with 4 CFR 102.13.
(b) Every party entering into an agreement with the Department of
Veterans Affairs for repayment of indebtedness in installments shall be
advised of the interest charges to be added to the debt. All debtors
being provided notice of indebtedness, including those entering into
repayment agreements, shall be advised that upon the debt becoming
delinquent, or in the case of repayment of already delinquent debts,
interest and the administrative costs of collection will be added to the
principal amount of the debt.
(c) The rate of interest charged by VA shall be based on the rate
paid by the United States for its borrowing as published in the
Treasury's Cash Management Regulations (ITFM 6-8000). The rate of
interest shall be adjusted annually on the first day of the calendar
year to reflect the average rate being charged in accordance with the
Treasury's Cash Management Regulations. Once the rate of interest has
been determined for a particular debt, the rate shall remain unchanged
throughout the duration of repayment of that debt.
(d) Interest on amounts covered by Sec. 1.919 shall accrue from the
date the initial notice of the debt is mailed to the debtor.
Notification shall be considered sufficient when effected by ordinary
mail, addressed to the last known address, and such notice is not
returned as undeliverable by postal authorities.
(e) Interest under this section shall not be charged if the debt is
paid in full within 30 days of mailing of the initial notice described
in paragraph (b) of this section. Once interest begins to accrue, and
after expiration of the time period for payment of the debt in full to
avoid assessment of interest and administrative costs, any amount
received toward the payment of such debt shall be first applied to
payment of outstanding administrative cost charges and then to accrued
interest or costs, and then to principal, unless a different rule is
prescribed by statute, contract, or other regulation.
(f) All or any part of the interest and administrative costs
assessed under this section are subject to consideration for waiver
under section 5302 of title 38 U.S.C., and appropriate administrative
procedures.
(1) In general, interest and administrative costs may be waived only
when the principal of the debt on which they are assessed is waived by a
Committee on Waivers and Compromises. However, VA may forbear collection
of interest and administrative costs, exclusive of collection of the
principal of the debt on which they are assessed, as well as terminate
further assessment of interest and administrative costs when the
collection of such interest and costs are determined to be not in the
government's best interest. Collection of interest and administrative
costs shall not be considered to be in the best interest of the
government when the amount of assessed interest and administrative cost
is so large that there is a reasonable certainty that the original debt
will never be repaid. The determination to forbear collection of
interest and administrative cost, exclusive of collection of the
principal of the debt, shall be made by the Chief of the Fiscal activity
at the station responsible for the collection of the debt. Such a
determination is not within the jurisdiction of a Committee on Waivers
and Compromises.
(2) When a debtor requests a waiver of collection of the
indebtedness, interest and administrative costs shall not be assessed
until either
(i) A Committee on Waivers and Compromises has considered the
request and rendered an initial decision, or
(ii) The applicable time limit for requesting waiver, as stated in
38 U.S.C.
[[Page 102]]
5302, has expired and the debtor, after notice in accordance with
Sec. 1.911, has not made such a request. This subsection does not apply
to debts resulting from participation in the loan program administered
under chapter 37 of title 38 of the United States Code.
(Authority: 38 U.S.C. 5302, 5315)
(g) Administrative costs assessed under Sec. 1.919 shall be the
average costs of collection of similar debts, or actual collection costs
as may be accurately determined in the particular case. No
administrative costs of collection will be assessed under Sec. 1.919 in
any cases where the indebtedness is paid in full prior to the 30 day
period specified in paragraph (e) of this section, or in any case where
a repayment plan is proposed by the debtor and accepted by the
Department of Veterans Affairs within that period, unless such repayment
agreement becomes delinquent.
(Authority: 38 U.S.C. 5315)
[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987]
Sec. 1.920 Documentation of collection action.
An appropriate file will be maintained for each claim completely
documenting all Department of Veterans Affairs collection action and the
basis for any compromise or for suspension or termination of collection
action.
[46 FR 62057, Dec. 22, 1981]
Sec. 1.921 Additional collection action.
Nothing in Secs. 1.900 through 1.954 is intended to preclude the
utilization of any other remedy available to the Department of Veterans
Affairs.
Sec. 1.922 Disclosure of debt information to consumer reporting agencies (CRA).
(a) The Department of Veterans Affairs may disclose all information
determined to be necessary, including the name, address, Department of
Veterans Affairs file number, Social Security number, and date of birth,
to consumer reporting agencies for the purpose of--
(1) Obtaining the location of an individual indebted to the United
States as a result of participation in any benefits program administered
by VA or indebted in any other manner to VA;
(2) Obtaining a consumer report in order to assess an individuals
ability to repay a debt when such individual has failed to respond to
the Department's demand for repayment or when such individual has
notified the Department that he/she will not repay the indebtedness; or
(3) Obtaining the location of an individual in order to conduct
program evaluation studies as required by 38 U.S.C. 527 or any other
law.
(b) Information disclosed by the Department of Veterans Affairs
under paragraph (a) of this section to consumer reporting agencies shall
neither expressly nor implicitly indicate that an individual is indebted
to the United States nor shall such information be recorded by consumer
reporting agencies in a manner that reflects adversely upon the
individual. Prior to disclosing this information, the Department of
Veterans Affairs shall ascertain that consumer reporting agencies with
which it contracts are able to comply with this requirement. The
Department of Veterans Affairs shall also make reasonable efforts to
insure compliance by its contractor with this requirement.
(c) Subject to the conditions set forth in paragraph (d) of this
section, information concerning individuals may be disclosed to consumer
reporting agencies for inclusion in consumer reports pertaining to the
individual, or for the purpose of locating the individual. Disclosure of
the fact of indebtedness will be made if the individual fails to respond
in accordance with written demands for repayment, or refuses to repay a
debt to the United States. In making any disclosure under this section,
VA will provide consumer reporting agencies with sufficient information
to identify the individual, including the individual's name, address, if
known, date of birth, VA file number, and Social Security number.
(d)(1) Prior to releasing information under paragraph (c) of this
section, the Department of Veterans Affairs will send a notice to the
individual. This notice will inform the individual that--
(i) The Department of Veterans Affairs has determined that he or she
is
[[Page 103]]
indebted to the Department of Veterans Affairs;
(ii) The debt is presently delinquent; and
(iii) The fact of delinquency may be reported to consumer reporting
agencies after 30 days have elapsed from the date of the notice.
(2)(i) VA will notify each individual of the right to dispute the
existence or amount of any debt in accordance with Secs. 3.101(e) and
19.109, and to request a waiver of the debt in accordance with
Secs. 1.955 through 1.970 if applicable.
(ii) If the Department of Veterans Affairs has not previously
notified the individual of the rights described in paragraph (d)(2)(i)
of this section, the Department of Veterans Affairs will include this
information in the notice described in paragraph (d)(1) of this section.
The individual shall be afforded a minimum of 30 days from the date of
the notice to respond to it before information is reported to consumer
reporting agencies.
(3) The Department of Veterans Affairs will defer reporting
information to a consumer reporting agency if the individual disputes
the existence or amount of any debt or requests waiver of the debt
within the time limits set forth in paragraph (d)(2)(ii) of this
section. The Department of Veterans Affairs will review any dispute and
notify the individual of its findings. If the original decision is
determined to be correct, or if the individual's request for waiver is
denied, the Department of Veterans Affairs may report the fact of
delinquency to a consumer reporting agency. However, the individual
shall be afforded 30 days from date of the notice of the agency's
determination to repay the debt.
(4) Nothing in this section affects an individual's right to appeal
an agency decision to the Board of Veterans Appeals. However,
information concerning the debt may be disclosed while an appeal is
pending before the Board of Veterans Appeals.
(5) Upon request, the Department of Veterans Affairs will notify an
individual--
(i) Whether information concerning a debt has been reported to
consumer reporting agencies;
(ii) Of the name and address of each consumer reporting agency to
which information has been released; and
(iii) Of the specific information released.
A notice of the right to request this information will be sent with the
notice described in paragraph (d)(1) of this section.
(e) Subsequent to disclosure of information to consumer reporting
agencies as described in paragraph (c) of this section, the Department
of Veterans Affairs shall:
(1) Notify on a monthly basis each consumer reporting agency
concerned of any substantial change in the status or amount of
indebtedness.
(2) Promptly verify any and all information disclosed if so
requested by the consumer reporting agency concerned.
(f) In the absence of a different rule prescribed by statute,
contract, or other regulation, an indebtedness is considered delinquent
if not paid by the individual by the date due specified in the notice of
indebtedness, unless satisfactory arrangements are made by such date.
(g) Notification shall be considered sufficient when effected by
ordinary mail, addressed to the last known address, and such notice is
not returned as undeliverable by postal authorities.
(h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract
between the Department of Veterans Affairs and a consumer reporting
agency, nor does it apply to a consumer reporting agency and its
employees. See 38 U.S.C. 5701(i). This paragraph does not relieve the
Department of Veterans Affairs of its obligation to comply with the
Privacy Act.
(i) The term ``consumer reporting agency'' means any person or
agency which, for monetary fees, dues, or on a cooperative nonprofit
basis, regularly engages in whole or in part in the practice of
assembling or evaluating consumer credit information or other
information on consumers for the purpose of furnishing consumer reports
to third parties or to other consumer reporting agencies. The term
``consumer reporting agency'' shall also mean any person or agency which
serves as a marketing agent under arrangements enabling third parties to
obtain such
[[Page 104]]
information from consumer reporting agencies, or which obtain such
information for the purpose of furnishing it to consumer reporting
agencies.
(Authority: 38 U.S.C. 5701 (g), (i); 31 U.S.C. 952)
[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987]
Sec. 1.923 Contracting for collection services.
(a) VA has authority to contract for collection services to recover
delinquent debts, provided that:
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection and refer the matter for litigation shall be
retained by VA;
(2) The contractor shall be subject to 38 U.S.C. 5701, and to the
Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C.
552a(m), and to applicable Federal and State laws and regulations
pertaining to debt collection practices, such as the Fair Debt
Collection Practices Act, 15 U.S.C. 1692 et seq.
(3) The contractor shall be required to strictly account for all
amounts collected;
(4) Upon returning an account to VA for subsequent referral to the
Department of Justice for litigation, the contractor must agree to
provide any data contained in its files relating to Sec. 1.951.
(b) Funding of collection service contracts:
(1) VA may fund a collection service contract on a fixed-fee basis
(i.e., payment of a fixed fee determined without regard to the amount
actually collected under the contract). Payment of the fee under this
type of contract must be charged to available appropriations;
(2) VA may also fund a collection service contract on a contingent-
fee basis (i.e., by including a provision in the contract permitting the
contractor to deduct its fee from amounts collected under the contract).
The fee should be based upon a percentage of the amount collected,
consistent with prevailing commercial practice;
(3) VA may enter into a contract under paragraph (b)(1) of this
section only if and to the extent that funding for the contract is
provided for in advance by an appropriation act or other legislation,
except that this requirement does not apply to the use of a revolving
fund authorized by statute;
(4) Except as authorized under paragraphs (b)(2) and (b)(5) of this
section, or unless otherwise specifically provided by law, VA shall
deposit all amounts recovered under collection service contracts for
Loan Guaranty debts into the Loan Guaranty Revolving Fund, and for all
other debts in the Treasury as miscellaneous receipts pursuant to 31
U.S.C. 3302.
(5) For benefit overpayments recovered under collection service
contract, VA, pursuant to 31 U.S.C. 3302, shall deposit:
(i) Amounts equal to the original overpayments in the appropriations
account from which the overpayments were made, and
(ii) Amount of interest or administrative costs in the Treasury as
miscellaneous receipts.
(Authority: 31 U.S.C. 3718)
[52 FR 42107, Nov. 3, 1987]
Sec. 1.924 Use and disclosure of mailing addresses.
(a) When attempting to locate a debtor in order to collect or
compromise a debt in accordance with Secs. 1.900 through 1.954, VA may
send a request to the Secretary of the Treasury, or his/her designee, in
order to obtain the debtor's most current mailing address from the
records of the Internal Revenue Service.
(b) VA may disclose a mailing address obtained under paragraph (a)
of this section to other agents, including collection service
contractors hired by VA, in order to facilitate the collection or
compromise of debts. A mailing address obtained under paragraph (a) of
this section may be disclosed to a consumer reporting agency under
authority of Sec. 1.922 only for the limited purpose of obtaining a
commercial credit report on the particular taxpayer.
(c) VA will insure that procedures established under this section
comply with the Privacy Act (5 U.S.C. 552a) and the provisions of 26
U.S.C. 6103(p)(4) and applicable regulations of the Internal Revenue
Service.
(Authority: 31 U.S.C. 3711)
[52 FR 42108, Nov. 3, 1987]
[[Page 105]]
Sec. 1.925 Administrative offset against amounts payable from Civil Service Retirement and Disability Fund, Federal Employees Retirement System (FERS), final
salary check, and lump sum leave payments.
(a) Unless otherwise prohibited by law or regulation, VA may request
that money which is due and payable to a debtor from either the Civil
Service Retirement and Disability Fund or the Federal Employees
Retirement System (FERS) be administratively offset in reasonable
amounts in order to collect, in one full payment or a minimal number of
payments, debts that are owed to VA by the debtor. Such requests shall
be made to the appropriate officials at the Office of Personnel
Management in accordance with such regulations prescribed by the
Director of that Office. See 5 CFR part 831, subpart R (Secs. 831.1801
through 831.1808) and part 845, subpart O (Secs. 845.401 through
845.408). In addition, VA may also offset against a Federal employee's
final salary check and lump sum leave payment, unless they represent
continuation of an offset against current salary initiated in accordance
with Secs. 1.980 through 1.994. See Sec. 1.912 for procedures for offset
against a final salary check and lump sum leave payment.
(b) When making a request to the Office of Personnel Management for
administrative offset under paragraph (a) of this section, VA shall
include a written certification that:
(1) The debtor owes VA a debt, including the amount of the debt;
(2) VA has complied with the applicable statutes, regulations, and
procedures of the Office of Personnel Management; and
(3) VA has complied with Secs. 1.911, 1.912, 1.912a, or 4 CFR 102.3
including any required hearing or review.
(c) Once VA decides to request administrative offset from the Civil
Service Retirement and Disability Fund or Federal Employees Retirement
System (FERS) under paragraph (a) of this section, it shall make the
request as soon as possible after completion of the applicable
procedures in order that the Office of Personnel Management may identify
the debtor's account in anticipation of the time when the debtor
requests or becomes eligible to receive payments from the Fund or FERS.
This will satisfy any requirement that offset be initiated prior to
expiration of the applicable statutes of limitations. At such time as
the debtor makes a claim for payments from the Fund or FERS, if at least
a year has elapsed since the offset request was originally made, the
debtor should be permitted to offer a satisfactory repayment plan in
lieu of offset upon establishing that such offset will create financial
hardship.
(d) If VA collects all or part of the debt by other means before
deductions are made or completed in accordance with paragraph (a) of
this section, VA shall promptly act to modify or terminate its request
for offset under paragraph (a) of this section.
(e) The Office of Personnel Management is neither required nor
authorized by this section to review the merits of VA's determination
with respect to the amount and validity of the debt waiver under 5
U.S.C. 5584 or 38 U.S.C. 5302, or providing or not providing an oral
hearing.
(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716)
[52 FR 42108, Nov. 3, 1987]
Sec. 1.926 Referral of VA debts.
(a) When authorized, VA may refer an uncollectible debt to another
Federal or State agency for the purpose of offsetting the debt from any
payment, except salary, (see paragraph (e) of this section), made by
such agency to the person indebted to VA.
(b) VA must certify in writing that the individual owes the debt,
the amount and basis of the debt, the date on which payment became due,
and the date VA's right to collect the debt first accrued.
(c) This certification will also state that VA provided the debtor
with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest both the existence and amount of the debt
and to request a waiver of collection of the
[[Page 106]]
debt (if applicable), as well as the right to a hearing on both matters;
(5) The opportunity to enter into a written agreement with VA for
the repayment of the debt; and
(6) Other applicable notices required by Secs. 1.911, 1.912, and
1.912a.
(d) The written certification required by paragraphs (b) and (c) of
this section will also contain (for all debts) a listing of all actions
taken by both VA and the debtor subsequent to the notice, as well as the
dates of such actions.
(e) The referral by VA of a VA debt to another agency for the
purposes of salary offset shall be done in accordance with 5 CFR
550.1106.
(Authority: 31 U.S.C. 3711)
[52 FR 42108, Nov. 3, 1987]
Sec. 1.927 Analysis of costs and prevention of debts.
(a) VA collection procedures should provide for periodic comparison
of costs incurred and amounts collected. Data on costs and corresponding
recovery rates for debts of different types and various dollar ranges
should be used to compare the cost effectiveness of alternative
collection procedures, establish guidelines with respect to points at
which costs of further collection efforts are likely to exceed
recoveries, assist in evaluating compromise offers, and establish
minimum debt amounts below which collection efforts need not be taken.
Costs and recovery data should also be useful in justifying adequate
resources for an effective collection program, evaluating the
feasibility and cost effectiveness of contracting for consumer reporting
agencies' services (Sec. 1.922), collection services (Sec. 1.923), and
for determining appropriate charges for administrative costs
(Sec. 1.919).
(b) VA shall insure that adequate procedures are established which
both identify the causes of overpayments, delinquencies, and defaults
and also describe the actions necessary to correct such problems.
(Authority: 31 U.S.C. 3711 through 3719)
[52 FR 42109, Nov. 3, 1987]
Sec. 1.928 Exemptions.
(a) Sections 1.900 through 1.954 do not apply to debts arising
under, or to payments made under, the Internal Revenue Code of 1954, as
amended (26 U.S.C. 1 et seq.), the Social Security Act (42 U.S.C. 301 et
seq.), or tariff laws of the United States. However, the remedies and
procedures described in Secs. 1.900 through 1.954 are still authorized
with respect to debts which are exempt from the purview of the Debt
Collection Act of 1982, to the extent that they are authorized under
some other statute or common law.
(b) This section shall not be construed as prohibiting the use of
Secs. 1.900 through 1.954 when VA attempts to collect debts owed to this
agency by persons employed by the agencies administering the laws cited
in paragraph (a) of this section.
(Authority: 31 U.S.C. 3711)
[52 FR 42109, Nov. 3, 1987]
Sec. 1.929 Reduction of debt through performance of work-study services.
(a) Scope. (1) Subject to the provisions of this section VA may
allow an individual to reduce an indebtedness to the United States
through offset of benefits to which the individual becomes entitled by
performance of work-study services under 38 U.S.C. 3485 and 3537 when
the debt arose by virtue of the individual's participation in a benefits
program provided under any of the following:
(i) 38 U.S.C. chapter 30;
(ii) 38 U.S.C. chapter 31;
(iii) 38 U.S.C. chapter 32;
(iv) 38 U.S.C. chapter 34;
(v) 38 U.S.C. chapter 35;
(vi) 38 U.S.C. chapter 36 (other than an education loan provided
under subpart F, part 21 of this title); or
(vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising
from a refund penalty imposed under 10 U.S.C. 16135).
(2) This section shall not apply in any case in which the individual
has a pending request for waiver of the debt under Secs. 1.950 through
1.970.
(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)
(b) Selection criteria. (1) If there are more candidates for a work-
study allowance than there are work-study positions available in the
area in which the services are to be performed, VA
[[Page 107]]
will give priority to the candidates who are pursuing a program of
education or rehabilitation.
(2) Only after all candidates in the area described in paragraph
(b)(1) of this section either have been given work-study contracts or
have withdrawn their request for contracts will VA offer contracts to
those who are not pursuing a program of education or rehabilitation and
who wish to reduce their indebtedness through performance of work-study
services.
(3) VA shall not offer a contract to an individual who is receiving
compensation from another source for the work-study services the
individual wishes to perform.
(4) VA shall not offer a contract to an individual if VA determines
that the debt can be collected through other means such as collection in
a lump sum, collection in installments as provided in Sec. 1.917 or
compromise as provided in Sec. 1.918.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(c) Utilization. The work-study services to be performed under a
debt-liquidation contract will be limited as follows:
(1) If the individual is concurrently receiving educational
assistance in a program administered by VA, work-study services are
limited to those allowed in the educational program under which the
individual is receiving benefits.
(2) If the individual is not concurrently receiving educational
assistance in a program administered by VA, the individual may perform
only those work-study services and activities which are or were open to
those students receiving a work-study allowance while pursuing a program
of education pursuant to the chapter under which the debt was incurred.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(d) Contract to perform services. (1) The work-study services
performed to reduce indebtedness shall be performed pursuant to a
contract between the individual and VA.
(2) The individual shall perform the work-study services required by
the contract at the place or places designated by VA.
(3) The number of hours of services to be performed under the
contract must be sufficient to enable the individual to become entitled
to a sum large enough to liquidate the debt by offset.
(4) The number of weeks in the contract will not exceed the lesser
of--
(i) The number of weeks of services the individual needs to perform
to liquidate his or her debt; or
(ii) 52.
(5) In determining the number of hours per week and the number of
weeks under paragraphs (d)(3) and (d)(4) of this section necessary to
liquidate the debt, VA will use the amount of the account receivable,
including all accrued interest, administrative costs and marshall fees
outstanding on the date the contract is offered to the individual and
all accrued interest, administrative costs and marshall fees VA
estimates will have become outstanding on the debt on the date the debt
is to be liquidated.
(6) The contract will automatically terminate after the total amount
of the individual's indebtedness described in paragraph (d)(5) of this
section has been recouped, waived, or otherwise liquidated. An
individual performing work-study services under a contract to liquidate
a debt is released from the contract if the debt is liquidated by other
means.
(7) The contract to perform work-study services for the purpose of
liquidating indebtedness will be terminated if:
(i) The individual is liquidating his or her debt under this section
while receiving either an educational assistance allowance for further
pursuit of a program of education or a subsistence allowance for further
pursuit of a program of rehabilitation;
(ii) The individual terminates or reduces the rate of pursuit of his
or her program of education or rehabilitation; and
(iii) The termination or reduction causes an account receivable as a
debt owed by the individual.
(8) VA may terminate the contract at any time the individual fails
to perform the services required by the contract in a satisfactory
manner.
(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)
[[Page 108]]
(e) Reduction of indebtedness. (1) In return for the individual's
agreement to perform hours of services totaling not more than 40 times
the number of weeks in the contract, VA will reduce the eligible
person's outstanding indebtedness by an amount equal to the higher of--
(i) The hourly minimum wage in effect under section 6(a) of the Fair
Labor Standards Act of 1938 times the number of hours the individual
works; or
(ii) The hourly minimum wage under comparable law of the State in
which the services are performed times the number of hours the
individual works.
(2) VA will reduce the individual's debt by the amount of the money
earned for the performance of work-study services after the completion
of each 50 hours of services (or in the case of any remaining hours
required by the contract, the amount for those hours).
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(f) Suspension of collections by offset. Notwithstanding the
provisions of Sec. 1.912a, during the period covered by the work-study
debt-liquidation contract with the individual, VA will ordinarily
suspend the collection by offset of a debt described in paragraph (a)(1)
of this section. However, the individual may voluntarily permit VA to
collect part of the debt through offset against other benefits payable
while the individual is performing work-study services. If the contract
is terminated before its scheduled completion date, and the debt has not
been liquidated, collection through offset against other benefits
payable will resume on the date the contract terminates.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(g) Payment for additional hours. (1) If an individual, without
fault on his or her part, performs work-study services for which payment
may not be authorized, including services performed after termination of
the contract, VA will pay the individual at the applicable hourly
minimum wage for such services as the Director of the VA field station
of jurisdiction determines were satisfactorily performed.
(2) The Director of the VA field station of jurisdiction shall
determine whether the individual was without fault. In making this
decision he or she shall consider all evidence of record and any
additional evidence which the individual wishes to submit.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
[62 FR 15401, Apr. 1, 1997]
Standards for Compromise of Claims
Authority: Sections 1.930 to 1.937 issued under 72 Stat. 1114; 38
U.S.C. 501.
Source: Sections 1.930 to 1.937 appear at 32 FR 2614, Feb. 8, 1967,
unless otherwise noted.
Sec. 1.930 Scope and application.
(a) The standards set forth in Secs. 1.930 through 1.938 apply to
the compromise of claims in accordance with 31 U.S.C. 3711. VA may
exercise such compromise authority where the claim owed to VA does not
exceed $100,000 exclusive of interest and other late payment charges.
This $100,000 limit does not apply to debts which arise out of
participation in the loan program under chapter 37 of title 38 of the
United States Code. The Comptroller General or his/her designee may
exercise compromise authority with respect to claims referred to the
General Accounting Office (GAO). Only the Comptroller General or his/her
designee may compromise a claim that arises out of an exception made by
GAO on account of an accountable officer, including a claim against the
payer, prior to its referral by GAO to the Department of Justice for
litigation.
(b) When the claim exceeds $100,000, exclusive of interest and other
late payment charges, the authority to accept a compromise offer rests
solely with the Department of Justice. However, approval by the
Department of Justice is not required if VA wishes to reject a
compromise offer on a debt in excess of $100,000. If VA believes that
the compromise offer on a debt in excess of $100,000 should be accepted,
it shall refer the matter to the Department of Justice by using the
Claims Collection Litigation Report (section 1.951). The referral should
contain a written memorandum by the local Committee on Waivers and
Compromises specifying the exact reason why it is believed that the
compromise offer should be accepted. Both the
[[Page 109]]
Claims Collection Litigation Report and the Committee's memorandum
should be sent to VA Central Office, Office of Financial Management, for
subsequent referral to the Department of Justice.
(Authority: 31 U.S.C. 3711)
[57 FR 47263, Oct. 15, 1992]
Sec. 1.931 Inability to pay.
(a) A claim may be compromised by VA pursuant to Secs. 1.930 through
1.938 if VA cannot collect the full amount of the debt because of:
(1) The debtor's inability to pay the full amount of the debt within
a reasonable amount of time; or
(2) The refusal of the debtor to pay the claim in full and the
inability of VA to collect the debt in full within a reasonable time by
means of enforced collection.
(b) In determining the debtor's ability to pay, the following
factors, among others, may be considered:
(1) Age and health of the debtor;
(2) Present and potential income;
(3) Inheritance prospects;
(4) The possibility that assets have been concealed or improperly
transferred by the debtor; and
(5) The availability of assets or income which may be realized by
means of enforced collection procedures.
(c) VA will give consideration to the applicable exemptions
available to the debtor under various State and Federal laws in
determining the ability to enforce collection. Uncertainty as to the
price which collateral or other property will bring at a forced sale may
be properly considered in determining the ability to enforce collection.
A compromise effected under Secs. 1.930 through 1.938 should be for an
amount which bears a reasonable relation to the amount which can be
recovered by enforced collection procedures, having regard for the
exemptions available to the debtor and the time in which collection will
take place.
(d) The payment of a compromise in installments is to be
discouraged. However, if payment of a compromise in installments is
necessary, then a legally enforceble agreement shall be obtained from
the debtor for the reinstatement of the original amount of the
indebtedness, less any amounts paid there on by the debtor, and also an
acceleration of the balance due upon default. Such an agreement,
together with security as described in Sec. 1.917, should be obtained in
every case possible.
(e) If VA files do not contain recent credit information as a basis
for assessing a compromise proposal, such information shall be obtained
from the debtor by obtaining a statement, executed under penalty of
perjury, showing the debtor's assets and liabilities, income and
expenses. Forms such as VA Form 4-5655 ``Financial Status Report'' or
Department of Justice Forms OBD-500 or OBD-500B shall be used to obtain
this information. Similar data may be obtained from corporate debtors by
using a form, such as Department of Justice Form OBD-500C or by resort
to balance sheets and such additional data as may be required.
(Authority: 31 U.S.C. 3711)
[52 FR 42109, Nov. 3, 1987]
Sec. 1.932 Litigative possibilities.
VA will attempt to compromise claims when there is a real doubt as
to the Government's ability to prove its case in court for the full
amount claimed either because of the legal issues involved or bona fide
dispute as to the facts. The amount accepted in compromise will fairly
reflect the probability of prevailing on the legal question involved,
the probabilities with respect to full or partial recovery of a judgment
having due regard to the availability of witnesses and other evidentiary
support for the Government claim, and related pragmatic considerations.
Proportionate weight will be given the court costs and attorney fees
which may be assessed against the Government if it is unsuccessful in
litigation, having regard for the litigative risks involved. (See 28
U.S.C. 2412.)
[52 FR 42110, Nov. 3, 1987]
Sec. 1.933 Cost of collecting claim.
The Department of Veterans Affairs will attempt to compromise claims
when the cost of collection does not justify enforced collection of the
full amount. The amount accepted in compromise in such cases may reflect
an
[[Page 110]]
appropriate discount for the administrative and litigative costs of
collection, having regard for the time required to effect collection.
The cost of collection normally will be a proportionately greatly factor
in the settlement of small claims.
Sec. 1.934 Enforcement policy.
Statutory penalties, interest, and administrative costs which are
established as an aid to enforcement and to compel compliance may be
compromised pursuant to Secs. 1.930 through 1.938. However, such
additional costs on debts will be considered for compromise only in
connection with compromise of the total amount of the debt (original
amount of debt plus interest and costs). Interest, administrative costs,
and other additional costs will never be considered for compromise
separately or exclusively from the original amount of the debt.
(Authority: 31 U.S.C. 3711)
[52 FR 42110, Nov. 3, 1987]
Sec. 1.935 Joint and several liability.
When two or more debtors are jointly and severally liable,
collection action will not be withheld against one such debtor until the
other or others pay their proportionate shares. VA shall not attempt to
allocate the burden of paying such claims as between the debtors, but
shall proceed to liquidate the indebtedness as quickly as possible.
Proper measures shall be taken to insure that a compromise with one such
debtor does not release VA's claim against the remaining debtor. The
amount of a compromise accepted from one debtor shall not be considered
as a precedent or as morally binding in determining the amount which
will be required from the other debtor held to be jointly and severally
liable on the claim.
(Authority: 31 U.S.C. 3711)
[52 FR 42110, Nov. 3, 1987]
Sec. 1.936 Settlement for a combination of reasons.
VA may compromise specific claims for any combination of reasons
authorized by sections 1.930-1.938.
(Authority: 31 U.S.C. 3711)
[57 FR 47264, Oct. 15, 1992]
Sec. 1.937 Further review of compromise offers.
VA may refer to the GAO or Department of Justice firm written
offers, plus supporting data, from debtors when there is doubt whether
the offers should be accepted.
[52 FR 42110, Nov. 3, 1987]
Sec. 1.938 Restrictions.
VA will not accept either a percentage of a debtor's profits or
stock in a debtor corporation in compromise of a claim. In negotiating a
compromise with a business concern, consideration shall be given to
requiring a waiver of the tax-loss-carry-forward and tax-loss-carry-back
rights of the debtor.
[52 FR 42110, Nov. 3, 1987]
Standards for Suspending or Terminating Collection Action
Source: Sections 1.940 to 1.943 appear at 32 FR 2615, Feb. 8, 1967,
unless otherwise noted.
Sec. 1.940 Scope and application.
(a) The standards set forth in Secs. 1.940 through 1.943 apply to
the suspension and or termination of collection action pursuant to 31
U.S.C. 3711(a)(3) on claims which do not exceed $100,000, exclusive of
interest and other late payment charges, after deducting the amount of
partial payments or collections, if any. VA may suspend or terminate
collection action under Secs. 1.940 through 1.943 with respect to claims
for money or property arising out of the Department's activities prior
to the referral of such claims to GAO or the Department of Justice for
litigation. The Comptroller General may authorize such authority with
respect to such claims referred to GAO by VA prior to
[[Page 111]]
their further referral to the Department of Justice for litigation.
(b) If after deducting the amount of any partial payments or
collections, a claim exceeds $100,000, exclusive of interest and other
late payment charges, then the authority to suspend or terminate
collection action rests solely with the Department of Justice. If VA
determines that suspension or termination is appropriate for such a
debt, after evaluation in accordance with the standards set forth in
Secs. 1.941 and 1.942, then the matter shall be referred to the
Department of Justice, using the Claims Collection Litigation Report
(see Sec. 1.951). The referral shall contain a written recommendation,
which specifies the reasons why suspension or termination is
advantageous to the government. If VA determines that its claim is
plainly erroneous or clearly without legal merit, it may terminate
collection regardless of the amount involved, without the concurrence of
the Department of Justice. If VA decides not to suspend or terminate
collection action on the claim, Justice Department approval is not
required.
(Authority: 31 U.S.C. 3711)
[57 FR 47264, Oct. 15, 1992]
Sec. 1.941 Suspension of collection activity.
(a) Collection action may be suspended temporarily on a claim when
the debtor cannot be located after diligent effort and there is reason
to believe that future collection action may be sufficiently productive
to justify periodic review and action on the claim. The following
sources shall be used to locate missing debtors: Telephone directories,
city directories, postmasters, drivers license records, automobile title
and registration records, State and local government agencies, the
Internal Revenue Service (Sec. 1.924), other Federal agencies,
employers, relatives, credit agency locate reports, and credit bureaus.
Suspension as to a particular debtor should not prohibit the early
liquidation of any security held for the debt. Every reasonable effort
should be made to locate missing debtors sufficiently in advance of the
bar of any applicable statute of limitations, in order to permit the
timely filing of a suit, if such action is warranted. If the missing
debtor has signed a confess-judgment note and is in default, referral of
the note for the entry of judgment should not be delayed because of his/
her missing status.
(b) Collection action may also be suspended temporarily on a claim
when the debtor owns no substantial equity in real or personal property
and is unable to make payments on the debt owed to VA or effect a
compromise at the time, but his/her future prospects justify retention
of the claim for periodic review and action, and:
(1) The applicable statute of limitations has been tolled or started
running again, or
(2) Future collection can be affected by offset, notwithstanding the
statute of limitations, with due regard to the 10 year limitation
prescribed by 31 U.S.C. 3716(c)(1), or
(3) The debtor agrees to pay interest on the amount of the debt on
which collection action has been suspended temporarily, and such
temporary suspension is likely to enhance the debtor's ability to pay
the debt in full, with interest, at a later time.
(c) Collection action may also be suspended, in accordance with
Secs. 1.911, 1.912, and 1.912a, pending agency action on requests for
administrative review or waiver.
(Authority: 31 U.S.C. 3711)
[52 FR 42110, Nov. 3, 1987]
Sec. 1.942 Termination of collection activity.
Termination of collection activity involves a final determination.
Collection activity may be terminated on cases previously suspended. The
Department of Veterans Affairs may terminate collection activity and
consider closing the agency file on a claim which meets any one of the
following standards:
(a) Inability to collect any substantial amount. Collection action
may be terminated on a claim when it becomes clear that VA cannot
collect or enforce collection of any significant amount from the debtor,
having due regard for the judicial remedies available to the agency, the
debtor's future financial
[[Page 112]]
prospects, and the exemptions available to the debtor under State and
Federal law. In determining the debtor's inability to pay, the following
factors, among others, shall be considered: Age and health of the
debtor, present and potential income, inheritance prospects, the
possibility that assets have been concealed or improperly transferred by
the debtor, the availability of assets or income which may be realized
by means of enforced collection proceedings.
(b) Inability to locate debtor. The debtor cannot be located, no
security remains to be liquidated, the applicable statute of limitations
has run, and the prospects of collecting by offset are too remote.
(c) Death of debtor. The debtor is determined to be deceased and the
Government has no prospect of collection from his/her estate.
(d) Cost will exceed recovery. The cost of further collection effort
is likely to exceed the amount recoverable.
(e) Claim legally without merit. Collection action should be
terminated on a claim whenever it is determined that the claim is
legally without merit.
(f) Claim cannot be substantiated by evidence. VA will terminate
collection action on once asserted claims because of lack of evidence or
unavailability of witnesses only in cases where efforts to induce
voluntary payment are unsuccessful.
[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987]
Sec. 1.943 Transfer of claims.
When VA has doubt as to whether collection action should be
suspended or terminated on a claim, it may refer the claim to the GAO
for advice. When a significant enforcement policy is involved in
reducing a statutory penalty or forfeiture to judgment, or recovery of a
judgment is a prerequisite to the imposition of administrative
sanctions, such as the suspension or revocation of a license or the
privilege of participating in a government sponsored program, VA may
refer such a claim for litigation even though termination of collection
activity might otherwise be given consideration. Claims on which VA
holds a judgment by assignment or otherwise shall be referred to the
Department of Justice for further actions if renewal of the judgment
lien or enforced collection proceedings are justified, except where VA
has authority for handling its own litigation.
(Authority: 31 U.S.C. 3711)
[52 FR 42111, Nov. 3, 1987
Referrals to GAO, Department of Justice, or IRS
Authority: Sections 1.950 to 1.954 issued under 72 Stat. 1114; 38
U.S.C. 501.
Source: Sections 1.950 to 1.954 appear at 52 FR 42111, 42112, Nov.
3, 1987, unless otherwise noted.
Sec. 1.950 Prompt referral.
(a) Except as provided in paragraphs (b) and (c) of this section,
claims on which aggressive collection action has been taken and which
cannot be compromised, or on which collection action cannot be suspended
or terminated, shall be promptly referred to the Department of Justice
for litigation. Claims for which the gross original amount is over
$100,000 shall be referred to the Commercial Litigation Branch, Civil
Division, Department of Justice, Washington, DC 20530. Claims for which
the gross original amount is $100,000 or less shall be referred to the
United States Attorney in whose judicial district the debtor can be
found. Referrals should be made as early as possible, consistent with
aggressive collection action and the observance of Secs. 1.900 through
1.954, and well within the time period for bringing a suit against the
debtor. Ordinarily, such referrals should be made within one year of
VA's final determination of the fact and amount of the debt.
(b) Claims arising from audit exceptions taken by the GAO to
payments made by VA must be referred to the GAO for review and approval,
prior to referral to the Department of Justice, unless VA has been
granted an exception by the GAO.
(c) When the merits of VA claim, the amount owed on the claim, or
the propriety of acceptance of a proposed compromise, suspension, or
termination are in doubt, the Department of Veterans Affairs shall refer
the matter to
[[Page 113]]
the GAO for resolution and instructions prior to proceeding with
collection action and/or referral to the Department of Justice for
litigation.
(d) Once a claim has been referred to the GAO or the Department of
Justice pursuant to this section, VA shall refrain from having any
contact with the debtor and shall direct the debtor to the GAO or the
Department of Justice, as appropriate, when questions concerning the
claim or a request for waiver of the claim are raised by the debtor. The
GAO or the Department of Justice, as appropriate, shall be immediately
notified by VA of any payments or requests for administrative remedies,
such as waiver, which are received by this department from the debtor
subsequent to referral of a claim under this section.
(e) In accordance with procedures set forth in 26 CFR part 301,
information pertaining to past-due, legally enforceable debts owed to VA
may be referred to the Internal Revenue Service by VA for the purpose of
collection of such debts by means of tax refund offset.
(Authority: 31 U.S.C. 3711)
Sec. 1.951 Claims Collection Litigation Report.
(a) Unless an exception is granted by the Department of Justice, the
Claims Collection Litigation Report (CCLR) shall be used with all
referrals of administratively uncollectible claims made pursuant to
Sec. 1.950. As required by the CCLR, the following information shall be
included:
(1) Report of prior collection actions. A checklist or brief summary
of the actions taken to collect or compromise the claim will be
forwarded with the claim upon its referral. If any of the administrative
collection actions described in Secs. 1.900 through 1.954 have been
omitted, the reasons for their omission must be provided. The Department
of Justice or GAO may return claims at their option when there is
insufficient justification for the omission of one or more of the
administrative collection actions.
(2) Current address of the debtor. The current address of the
debtor, or the name and address of the agent for a corporation upon whom
service may be made, shall be provided. Reasonable and appropriate steps
will be taken to locate missing parties in all cases. Referrals to the
Department of Justice, in which the current address of any party is
unknown, shall be accompanied by a listing of the prior known addresses
of such party and a statement of the steps taken to locate that party.
(3) Credit data. Current credit data, when applicable, indicating
that there is a reasonable prospect of effecting enforced collection
from the debtor, having due regard for the exemptions available to the
debtor under State and Federal law and judicial remedies available to
the government, shall be included:
(i) Such credit data may take the form of:
(A) A commercial credit report;
(B) An agency investigative report showing the debtor's assets,
liabilities, income, and expenses;
(C) The individual debtor's own financial statement executed under
penalty of perjury reflecting the debtor's assets, liabilities, income,
and expenses; or
(D) An audited balance sheet of a corporate debtor.
(ii) Such credit data may be omitted if:
(A) A surety bond is available in an amount sufficient to satisfy
the claim in full;
(B) The forced sale value of the security available for application
to the VA claim is sufficient to satisfy the claim in full;
(C) VA wishes to liquidate the loan collateral through judicial
foreclosure but does not desire a deficiency judgment;
(D) The debtor is in bankruptcy or receivership;
(E) The debtor's liability to VA is fully covered by insurance, in
which case VA will furnish such information as it can develop concerning
the identity and address of the insurer and the type and amount of
insurance coverage;
(F) The nature of the debtor is such that credit data is not
normally available or cannot reasonably be obtained; or
(G) Where it is clearly irrelevant to the Government's case.
[[Page 114]]
(b) VA shall also use the Claims Collection Litigation Report (CCLR)
when referring claims to the Department of Justice in order to obtain
approval of that department with respect to compromise, suspension, or
termination.
(Authority: 31 U.S.C. 3711)
Sec. 1.952 Preservation of evidence.
Care shall be taken to preserve all files, records, and exhibits on
claims referred to or to be referred to the Department of Justice for
litigation. Under no circumstances should original documents be sent to
the Department of Justice or to the U.S. Attorney without their specific
prior approval to do so. Copies of relevant documents should be sent
whenever necessary.
(Authority: 31 U.S.C. 3711)
Sec. 1.953 Minimum amount of referrals to the Department of Justice.
VA shall not refer claims of less than $600, exclusive of interest,
penalties (if applicable), and administrative costs, for litigation
unless:
(a) Referral is important to a significant enforcement policy, or
(b) The debtor not only has the clear ability to pay the claim but
the government can effectively enforce payment, having due regard for
the exemptions available to the debtor under State and Federal law and
the judicial remedies available to the government.
(Authority: 31 U.S.C. 3711)
Sec. 1.954 Preliminary referrals to GAO.
As required by Sec. 1.950, preliminary referrals to the Government
Accounting Office (GAO) will be in accordance with instructions,
including monetary limitations, contained in the ``General Accounting
Office Policy and Procedures Manual for the Guidance of Federal
Agencies''.
Regional Office Committees on Waivers and Compromises
Authority: Sections 1.955 to 1.970 issued under 5 U.S.C. 5584; 31
U.S.C. 3711; 38 U.S.C. 501, 3685, 3720, 5302; 4 CFR Parts 91 and 92.
Sec. 1.955 Regional office Committees on Waivers and Compromises.
(a) Delegation of authority and establishment. (1) Sections 1.955 et
seq. are issued to implement the authority for waiver consideration
found in 38 U.S.C. 5302 and 5 U.S.C. 5584 and the compromise authority
found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The duties, delegations of
authority, and all actions required of the Committees on Waivers and
Compromises are to be accomplished under the direction of, and authority
vested in, the Director of the regional office. Delegations of authority
and limitations for waiver actions under 5 U.S.C. 5584 are set forth in
Sec. 1.963a of this part.
(2) There is established in each regional office, a Committee on
Waivers and Compromises to perform the duties and assume the
responsibilities delegated by Secs. 1.956 and 1.957. The term regional
office, as used in Sec. 1.955 et seq., includes VA Medical and Regional
Office Centers and VA Centers where such are established.
(b) Selection. The Director shall designate the employees to serve
as Chairperson, members and alternates. Except upon specific
authorization of the Chief Benefits Director, when workload warrants a
full-time committee, such designation will be part-time additional duty
upon call of the Chairperson.
(c) Control and staff. The Division Chief of the Fiscal activity is
accountable for the administrative control of the Committee functions.
The quality control of the Committee and its professional and clerical
staff is the responsibility of the Chairperson.
(d) Overall control. The Assistant Secretary for Finance and
Information Resources Management (IRM) is delegated complete management
authority, including planning, policy formulation, control,
coordination, supervision, and evaluation of Committee operations
(e) Committee composition. (1) The Committee shall consist of a
Chairperson and Alternate Chairperson and as many Committee members and
alternate members as the Director may appoint. Members and alternates
shall be selected so that in each of the debt
[[Page 115]]
claim areas (i.e., compensation, pension, education, insurance, loan
guaranty, etc.) there are members and alternates with special competence
and familiarity with the program area.
(2) When a claim is properly referred to the Committee for either
waiver consideration or the consideration of a compromise offer, the
Chairperson shall designate a panel from the available Committee members
to consider the waiver request or compromise offer. If the debt for
which the waiver request or compromise offer is made is $20,000 or less
(exclusive or interest and administrative costs), the Chairperson will
assign one Committee member as the panel. This one Committee member
should have experience in the program area where the debt is located.
The single panel member's decision shall stand as the decision of the
Committee. If the debt for which the waiver request or compromise offer
is made is more than $20,000 (exclusive of interest and administrative
costs), the Chairperson shall assign two Committee members. One of the
two members should be knowledgeable in the program area where the debt
arose. If the two member panel cannot reach a unanimous decision, the
Chairperson shall assign a third member of the Committee to the panel,
or assign the case to three new members, and the majority vote shall
determine the Committee decision.
(3) The assignment of a one or two member panel as described in
paragraph (e)(2) of this section is applicable if the debtor files a
Notice of Disagreement with a Committee decision to deny waiver. That
is, if the Notice of Disagreement is filed with a decision by a one
member panel to deny waiver of collection of a debt of $20,000 or less,
then the Notice of Disagreement should also be assigned to one panel
member. Likewise, a Notice of Disagreement filed with a decision by a
two or three member panel to deny waiver of collection of a debt of more
than $20,000 should also be assigned to a Committee panel of two members
(three if these two members cannot agree). However, a Chairperson must
assign the Notice of Disagreement to a different one, two, or three
member panel than the panel that made the original Committee decision
that is now the subject of the Notice of Disagreement.
(Authority: 5 U.S.C. 5584, 31 U.S.C. 3711, 38 U.S.C. 3720(a), 5302)
[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54
FR 40871, Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995]
Sec. 1.956 Jurisdiction.
(a) The regional office Committees are authorized, except as to
determinations under Sec. 2.6(e)(4)(i) of this chapter where applicable,
to consider and determine as limited in Secs. 1.955 et seq., settlement,
compromise and/or waiver concerning the following debts and
overpayments:
(1) Arising out of operations of the Veterans Benefits
Administration:
(i) Overpayment or erroneous payments of pension, compensation,
dependency and indemnity compensation, burial allowances, plot
allowance, subsistence allowance, education (includes debts from work
study and education loan defaults as well as from other overpayments of
educational assistance benefits) or insurance benefits, clothing
allowance and automobile or other conveyance and adaptive equipment
allowances.
(ii) Debts arising out of the loan program under 38 U.S.C. ch. 37
after liquidation of security, if any.
(iii) Such other debts as may be specifically designated by the
Chief Benefits Director.
(2) Arising out of operations of the Veterans Health Services and
Research Administration:
(i) Debts resulting from services furnished in error (Sec. 17.62(a)
of this chapter).
(ii) Debts resulting from services furnished in a medical emergency
(Sec. 17.62(b) of this chapter).
(iii) Settlement of breached career residency contracts.
(iv) Other claims arising in connection with transactions of the
Veterans Health Services and Research Administration (Sec. 17.64(c) of
this chapter).
(3) Claims for erroneous payments of pay and allowances, and
erroneous payments of travel, transportation, and relocation expenses
and allowances, made to or on behalf of employees (5 U.S.C. 5584, 4 CFR
Parts 91 and 92).
[[Page 116]]
(b) The Chief Benefits Director may, at his or her discretion,
assume original jurisdiction and establish an ad hoc Board to determine
a particular issue arising within this section.
(Authority: 38 U.S.C. 501).
[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979;
60 FR 53276, Oct. 13, 1995]
Sec. 1.957 Committee authority.
(a) Regional office committee. On matters covered in Sec. 1.956, the
regional office Committee is authorized to determine the following
issues:
(1) Waivers. A decision may be rendered to grant or deny waiver of
collection of a debt in the following overpayment categories:
(i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may
consider waiver of the indebtedness of a veteran or spouse resulting
from: (A) The payment of a claim under the guaranty or insurance of
loans, (B) the liquidation of direct loans, (C) the liquidation of loans
acquired under Sec. 36.4318, and (D) the liquidation of vendee accounts.
The phrase veteran or spouse includes a veteran-borrower, veteran-
transferee, a veteran-purchaser on a vendee account, a former spouse or
surviving spouse of a veteran.
(ii) Other than loan guaranty program. (38 U.S.C. 5302(a))
(iii) Services erroneously furnished. (Sec. 17.62(a))
(2) Compromises--(i) Loan program debts (38 U.S.C. 3720(a)). Accept
or reject a compromise offer irrespective of the amount of the debt
(loan program matters under 38 U.S.C. chapter 37 are unlimited as to
amount).
(ii) Other than loan program debts (31 U.S.C. 3711).
(A) Accept or reject a compromise offer on a debt which exceeds
$1,000 but which is not over $100,000 (both amounts exclusive of
interest and other late payment charges).
(B) Accept or reject a compromise offer on a debt of a $1,000 or
less, exclusive of interest and other late payment charges, which is not
disposed of by the Chief, Fiscal activity, pursuant to paragraph (b) of
this section.
(C) Reject a compromise offer on a debt which exceeds $100,000,
exclusive of interest and other late payment charges.
(D) Recommend approval of a compromise offer on a debt which exceeds
$100,000, exclusive of interest and other late payment charges. The
authority to accept a compromise offer on such a debt rests solely
within the jurisdiction of the Department of Justice. The Committee
should evaluate a compromise offer on a debt in excess of $100,000,
using the factors set forth in Secs. 1.930 through 1.938. If the
Committee believes that the compromise offer is advantageous to the
government, then the Committee members shall so state this conclusion in
a written memorandum of recommendation of approval to the Chairperson.
This recommendation, along with a Claims Collection Litigation Report
(CCLR) completed in accordance with Sec. 1.951, will be referred to VA
Central Office, Office of Financial Management (047G7), for submission
to the Department of Justice for final approval.
(Authority: 31 U.S.C. 3711)
(3) Breached career residency contracts. Final settlement of any
breached career residency contract in which terms are different than
those provided in the contract, which will result in the payment of less
than liquidated value or in an extension of time in which to pay
damages.
(b) Chief of Fiscal activity. The Chief of the Fiscal activity at
both VBA and VHA offices has the authority, as to debts within his/her
jurisdiction, to:
(1) On other than loan program debts under 38 U.S.C. chapter 37,
accept compromise offers of 50% or more of a total debt not in excess of
$1,000, exclusive of interest and other late payment charges, regardless
of whether or not there has been a prior denial of waiver.
(2) On other than loan program debts under 38 U.S.C. chapter 37,
reject any offer of compromise of a total debt not in excess of $1,000,
exclusive of interest and other late payment charges, regardless of
whether or not there has been a prior denial of waiver.
(3) On other than loan guaranty program debts under 38 U.S.C.
chapter 37, reject any offer of compromise of a total debt not in excess
of $1,000, exclusive of interest, regardless of whether
[[Page 117]]
or not there has been a prior denial of waiver.
(Authority: 31 U.S.C. 3711 and 38 U.S.C. 3720(a))
[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985;
52 FR 42112, Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995]
Sec. 1.958 Finality of decisions.
A decision by the regional office Committee operating within the
scope of its authority, denying waiver of all or a part of an
overpayment is subject to appeal. There is no right of appeal from a
decision rejecting a compromise offer.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.959 Records and certificates.
The Chairperson of the Committee shall execute or certify any
documents pertaining to its proceedings. He/she will be responsible for
maintaining needed records of the transactions of the Committee and
preparation of any administrative or other reports which may be
required.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.960 Legal and technical assistance.
Legal questions involving a determination under Sec. 2.6(e)(4) of
this chapter will be referred to the Regional Counsel for action in
accordance with delegations of the General Counsel, unless there is an
existence a General Counsel's opinion or an approved Regional Counsel's
opinion dispositive of the controlling legal principle. As to matters
not controlled by Sec. 2.6(e)(4) of this chapter, the Chairperson of the
regional office Committee or at his/her instance, a member, may seek and
obtain advice from the Regional Counsel on legal matters within his/her
jurisdiction and from other division chiefs in their areas of
responsibility, on any matter properly before the Committee. Guidance
may also be requested from the Central Office staff.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.961 Releases.
On matters within its jurisdiction, the Committee may authorize the
release of any right, title, claim, lien or demand, however acquired,
against any person obligated on a loan guaranteed, insured, or made by
the Department of Veterans Affairs under the provisions of 38 U.S.C. ch.
37, or on an acquired loan, or on a vendee account.
[39 FR 26400, July 19, 1974]
Sec. 1.962 Waiver of overpayments.
There shall be no collection of an overpayment, or any interest
thereon, which results from participation in a benefit program
administered under any law by VA when it is determined by a regional
office Committee on Waivers and Compromises that collection would be
against equity and good conscience. For the purpose of this regulation,
the term overpayment refers only to those benefit payments made to a
designated living payee or beneficiary in excess of the amount due or to
which such payee or beneficiary is entitled. The death of an indebted
payee, either prior to a request for waiver of the indebtedness or
during Committee consideration of the waiver request, shall not preclude
waiver consideration. There shall be no waiver consideration of an
indebtedness that results from the receipt of a benefit payment by a
non-payee who has no claim or entitlement to such payment.
(a) Waiver consideration is applicable in an indebtedness resulting
from work study and education loan default, as well as indebtedness of a
veteran-borrower, veteran transferee, or indebted spouse of either,
arising out of participation in the loan program administered under 38
U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness
which is the result of VA hospitalization, domiciliary care, or
treatment of a veteran, either furnished in error or on the basis of
tentative eligibility.
(b) In any case where there is an indication of fraud or
misrepresentation of a material fact on the part of the debtor or any
other party having an interest in the claim, action on a request for
[[Page 118]]
waiver will be deferred pending appropriate disposition of the matter.
However, the existence of a prima facie case of fraud shall,
nevertheless, entitle a claimant to an opportunity to make a rebuttal
with countervailing evidence; similiarly, the misrepresentation must be
more than non-willful or mere inadvertence. The Committee may act on a
request for waiver concerning such debts, after the Inspector General or
the Regional Counsel has determined that prosecution is not indicated,
or the Department of Justice has notified VA that the alleged fraud or
misrepresentation does not warrant action by that department, or the
Department of Justice or the appropriate United States Attorney,
specifically authorized action on the request for waiver.
(Authority: 38 U.S.C. 501)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
50 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987]
Sec. 1.963 Waiver; other than loan guaranty.
(a) General. Recovery of overpayments of any benefits made under
laws administered by the VA shall be waived if there is no indication of
fraud, misrepresentation, or bad faith on the part of the person or
persons having an interest in obtaining the waiver and recovery of the
indebtedness from the payee who received such benefits would be against
equity and good conscience.
(b) Application. A request for waiver of an indebtedness under this
section shall only be considered:
(1) If made within 2 years following the date of a notice of
indebtedness issued on or before March 31, 1983, by the Department of
Veterans Affairs to the debtor, or
(2) Except as otherwise provided herein, if made within 180 days
following the date of a notice of indebtedness issued on or after April
1, 1983, by the Department of Veterans Affairs to the debtor. The 180
day period may be extended if the individual requesting waiver
demonstrated to the Chairperson of the Committee on Waivers and
Compromises that, as a result of an error by either the Department of
Veterans Affairs or the postal authorities, or due to other
circumstances beyond the debtor's control, there was a delay in such
individual's receipt of the notification of indebtedness beyond the time
customarily required for mailing (including forwarding). If the
requester does substantiate that there was such a delay in the receipt
of the notice of indebtedness, the Chairperson shall direct that the 180
day period be computed from the date of the requester's actual receipt
of the notice of indebtedness.
(Authority: 38 U.S.C. 5302 (a) & (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
48 FR 27400, June 15, 1983; 50 FR 38803, Sept. 25, 1985; 58 FR 3840,
Jan. 12, 1993]
Sec. 1.963a Waiver; erroneous payments of pay and allowances.
The provisions applicable to VA (including those for appeals and
refunds) concerning waiver actions relating to erroneous payments to VA
employees of pay and allowances and travel, transportation, and
relocation expenses and allowances under 5 U.S.C. 5584 are set forth at
4 CFR Parts 91 and 92. The members of Committees on Waivers and
Compromises assigned to waiver actions under Sec. 1.955 of this part are
hereby delegated all authority granted the Secretary under 5 U.S.C. 5584
and 4 CFR Parts 91 and 92 to grant waiver in whole or in part of a claim
aggregating not more than $1,500, to recommend approval of waiver in
whole or in part of a claim aggregating more than $1,500, and to deny
waiver of a claim for any amount. The following are the only provisions
of Secs. 1.955 through 1.970 of this part applicable to waiver actions
concerning erroneous payments of pay and allowances and travel,
transportation, and relocation expenses and allowances under 5 U.S.C.
5584: Secs. 1.955(a) through (e)(2), 1.956(a) (introductory text) and
(a)(3), 1.959, 1.960, 1.963a, and 1.967(c).
(Authority: 5 U.S.C. 5584, 38 U.S.C. 501; 4 CFR Parts 91 and 92)
[60 FR 53276, Oct. 13, 1995]
Sec. 1.964 Waiver; loan guaranty.
(a) General. Any indebtedness of a veteran or the indebtedness of
the spouse shall be waived only when the
[[Page 119]]
following factors are determined to exist:
(1) Following default there was a loss of the property which
constituted security for the loan guaranteed, insured or made under
chapter 37 of title 38 United States Code;
(2) There is no indication of fraud, misrepresentation, or bad faith
on the part of the person or persons having an interest in obtaining the
waiver; and
(3) Collection of such indebtedness would be against equity and good
conscience.
(b) Spouse. The waiver of a veteran's indebtedness shall inure to
the spouse of such veteran insofar as concerns said indebtedness, unless
the obligation of the spouse is specifically excepted. However, the
waiver of the indebtedness of the veteran's spouse shall not inure to
the benefit of the veteran unless specifically provided for in the
waiver decision.
(c) Surviving spouse or former spouse. A surviving spouse of a
veteran or the former spouse of a veteran may be granted a waiver of the
indebtedness provided the requirements of paragraph (a) of this section
are met.
(d) Preservation of Government rights. In cases in which it is
determined that waiver may be granted, the action will take such form
(covenant not to sue, or otherwise) as will preserve the rights of the
Government against obligors other than the veteran or the spouse.
(e) Application. A request for waiver of an indebtedness under this
section shall be made within one year after the date on which the debtor
receives, by Certified Mail-Return Receipt Requested, written notice
from VA of the indebtedness. If written notice of indebtedness is sent
by means other than Certified Mail-Return Receipt Requested, then there
is no time limit for filing a request for waiver of indebtedness under
this section.
(Authority: 38 U.S.C. 5302(b))
(f) Exclusion. Except as otherwise provided in this section, the
indebtedness of a nonveteran obligor under the loan program is excluded
from waiver.
(Authority: 38 U.S.C. 5302 (b) and (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
57 FR 33875, July 31, 1992; 58 FR 3840, Jan. 12, 1993]
Sec. 1.965 Application of standard.
(a) The standard ``Equity and Good Conscience'', will be applied
when the facts and circumstances in a particular case indicate a need
for reasonableness and moderation in the exercise of the Government's
rights. The decision reached should not be unduly favorable or adverse
to either side. The phrase equity and good conscience means arriving at
a fair decision between the obligor and the Government. In making this
determination, consideration will be given to the following elements,
which are not intended to be all inclusive:
(1) Fault of debtor. Where actions of the debtor contribute to
creation of the debt.
(2) Balancing of faults. Weighing fault of debtor against Department
of Veterans Affairs fault.
(3) Undue hardship. Whether collection would deprive debtor or
family of basic necessities.
(4) Defeat the purpose. Whether withholding of benefits or recovery
would nullify the objective for which benefits were intended.
(5) Unjust enrichment. Failure to make restitution would result in
unfair gain to the debtor.
(6) Changing position to one's detriment. Reliance on Department of
Veterans Affairs benefits results in relinquishment of a valuable right
or incurrence of a legal obligation.
(b) In applying this single standard for all areas of indebtedness,
the following elements will be considered, any indication of which, if
found, will preclude the granting of waiver:
(1) Fraud or misrepresentation of a material fact (see
Sec. 1.962(b)).
(2) Bad faith. This term generally describes unfair or deceptive
dealing by one who seeks to gain thereby at another's expense. Thus, a
debtor's conduct in connection with a debt arising from participation in
a VA benefits/services program exhibits bad faith if such conduct,
although not undertaken with actual fraudulent intent, is undertaken
with intent to seek an unfair advantage, with knowledge of the likely
consequences, and results in a loss to the government.
[[Page 120]]
(3) Lack of good faith. Absence of an honest intention to abstain
from taking unfair advantage of the holder and/or the Government.
(Authority: 38 U.S.C. 5302(c))
[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58
FR 7296, Feb. 5, 1993]
Sec. 1.966 Scope of waiver decisions.
(a) Decisions will be based on the evidence of record. A hearing may
be held at the request of the claimant or his/her representative. No
expenses incurred by a claimant, his representative, or any witness
incident to a hearing will be paid by the Department of Veterans
Affairs.
(b) A regional office Committee may:
(1) Waive recovery as to certain persons and decline to waive as to
other persons whose claims are based on the same veteran's service.
(2) Waive or decline to waive recovery from specific benefits or
sources, except that:
(i) There shall be no waiver of recovery out of insurance of an
indebtedness secured thereby; i.e., an insurance overpayment to an
insured. However, recovery may be waived of any or all of such
indebtedness out of benefits other than insurance then or thereafter
payable to the insured.
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
48 FR 1056, Jan. 10, 1983]
Sec. 1.967 Refunds.
(a) Except as provided in paragraph (c) of this section, any portion
of an indebtedness resulting from participation in benefits programs
administered by the Department of Veterans Affairs which has been
recovered by the U.S. Government from the debtor may be considered for
waiver, provided the debtor requests waiver in accordance with the time
limits of Sec. 1.963(b). If collection of an indebtness is waived as to
the debtor, such portions of the indebtedness previously collected by
the Department of Veterans Affairs will be refunded. In the event that
waiver of collection is granted for either an education, loan guaranty,
or direct loan debt, there will be a reduction in the debtor's
entitlement to future benefits in the program in which the debt
originated.
(b) The Department of Veterans Affairs may not waive collection of
the indebtedness of an educational institution found liable under 38
U.S.C. 3685. Waiver of collection of educational benefit overpayments
from all or a portion of the eligible persons attending an educational
institution which has been found liable under 38 U.S.C. 3685 shall not
relieve the institution of its assessed liability. (See 38 CFR
21.4009(f)).
(c) The regulatory provisions concerning refunds of indebtedness
collected by the Department of Veterans Affairs arising from erroneous
payments of pay and allowances and travel, transportation, and
relocation expenses and allowances are set forth in 4 CFR Parts 91 and
92.
(d) Refund of the entire amount collected may not be made when only
a part of the debt is waived or when collection of the balance of a loan
guaranty indebtedness by the Department of Veterans Affairs from
obligors, other than a husband or wife of the person requesting waiver,
will be adversely affected. Only where the amount collected exceeds the
balance of the indebtedness still in existence will a refund be made in
the amount of the difference between the two. Otherwise, refunds will be
made in accordance with paragraph (a) of this section.
(Authority: 38 U.S.C. 3685, 5302; 5 U.S.C. 5584)
[48 FR 1056, Jan. 10, 1983, as amended at 60 FR 53276, Oct. 13, 1995]
Sec. 1.968 [Reserved]
Sec. 1.969 Revision of waiver decisions.
(a) Jurisdiction. A decision involving waiver may be reversed or
modified on the basis of new and material evidence, fraud, a change in
law or interpretation of law specifically stated in a Department of
Veterans Affairs issue, or clear and unmistakable error shown by the
evidence in file at the time the prior decision was rendered by the same
or any other regional office Committee.
(b) Finality of decisions. Except as provided in paragraph (a) of
this section, a decision involving waiver rendered by
[[Page 121]]
the Committee having jurisdiction is final, subject to the provisions
of:
(1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to
finality of decisions;
(2) Section 3.105 (a) and (b) of this chapter as to revision of
decisions, except that the Central Office staff may postaudit or make an
administrative review of any decision of a regional office Committee;
(3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice
of disagreement and the right of appeal;
(4) Section 19.124 of this chapter as to the filing of
administrative appeals and the time limits for filing such appeals.
(c) Difference of opinion. Where reversal or amendment of a decision
involving waiver is authorized under Sec. 3.105(b) of this chapter
because of a difference of opinion, the effective date of waiver will be
governed by the principle contained in Sec. 3.400(h) of this chapter.
(Authority: 38 U.S.C. 501)
[44 FR 59907, Oct. 17, 1979]
Sec. 1.970 Standards for compromise.
Decisions of the Committee respecting acceptance or rejection of a
compromise offer shall be in conformity with the standards in
Secs. 1.900 through 1.937. In loan guaranty cases the offer of a veteran
or other obligor to effect a compromise must relate to an indebtedness
established after the liquidation of the security, if any, and shall be
reviewed by the Committee. An offer to effect a compromise may be
accepted if it is deemed advantageous to the Government. A decision on
an offer of compromise may be revised or modified on the basis of any
information which would warrant a change in the original decision.
(Authority: 38 U.S.C. 501)
[44 FR 59907, Oct. 17, 1979]
Salary Offset Provisions
Source: 52 FR 1905, Jan. 16, 1987, unless otherwise noted.
Sec. 1.980 Scope.
(a) The provisions set forth in Secs. 1.980 through 1.994 implement
VA's (Department of Veterans Affairs) authority for the use of salary
offset to satisfy certain debts owed to the government.
(b) These regulations apply to offsets by VA from the salaries of
current employees of VA or any other agency who owe debts to VA. Offsets
by VA from salaries of current employees of VA who owe debts to other
agencies shall be processed under 5 CFR 550.1108.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended, the Social Security Act,
the tariff laws of the United States, or to any case where collection of
a debt by salary offset is explicitly provided for (e.g., travel
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C.
4108) or prohibited by another statute.
(d) These regulations do not preclude an employee from requesting
waiver of an overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any
other similar provision of law, or in any way questioning the amount or
validity of a debt not involving benefits under the laws administered by
VA by submitting a subsequent claim to the General Accounting Office in
accordance with procedures prescribed by that office.
(e) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
(f) These regulations do not preclude the compromise, suspension, or
termination of collection actions where appropriate under the standards
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.,
4 CFR parts 101-105, 38 CFR 1.900 et seq.).
(g) The procedures and requirements of these regulations do not
apply to salary offset used to recoup a Federal employee's debt where a
judgment has been obtained against the employee for the debt.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54
FR 34980, Aug. 23, 1989]
Sec. 1.981 Definitions.
(a) Agency means:
[[Page 122]]
(1) An executive agency as defined in 5 U.S.C. 105, including the
U.S. Postal Service, and the U.S. Postal Rate Commission, and
(2) A military department as defined in 5 U.S.C. 102.
(3) An agency or court of the judicial branch, including a court as
defined in 28 U.S.C. 610, the District Court for the Northern Mariana
Islands, and the Judicial Panel on Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Debt means an amount owed to the United States from sources
which include loans insured or guaranteed by the United States and all
other amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interest, fines and forfeitures (except those arising under the
Uniform Code of Military Justice), and all other similar sources.
(c) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. Excluded
from this definition are deductions described in 5 CFR 581.105(b)
through (f).
(d) Employee means a current employee of VA or other Federal agency
including a current member of the Armed Forces or a Reserve of the Armed
Forces (Reserves).
(e) Salary offset means an attempt to collect a debt under 5 U.S.C.
5514 by deduction(s) at one or more officially estabilished pay
intervals from the current pay account of an employee without his or her
consent.
(f) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee to VA or another Federal agency
as permitted or required by 5 U.S.C. 5584 or 38 U.S.C. 5302, or other
similar statutes.
(g) Extreme hardship to an employee means an employee's inability to
provide himself or herself and his or her dependents with the
necessities of life such as food, housing, clothing, transportation, and
medical care.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.982 Salary offsets of debts involving benefits under the laws administered by VA.
(a) VA will not collect a debt involving benefits under the laws
administered by VA by salary offset unless the Secretary or designee
provides the employee with written notice.
(b) If the employee has not previously appealed the amount or
existence of the debt under Secs. 19.1 through 19.200 of this title and
time for pursuing such an appeal has not expired (Sec. 19.129), the
Secretary or designee will provide the employee with written notice of
the debt. The written notice will state that the employee may appeal the
amount and existence of the debt in accordance with the procedures set
forth in Secs. 19.1 through 19.200 of this title and will contain the
determination and information required by Sec. 1.983(b)(1)-(5), (7),
(9), (10), and (12)-(14). The notice will also state that the employee
may request a hearing on the offset schedule under the procedures set
forth in Sec. 1.984 and such a request will stay the commencement of
salary offset.
(c) If the employee previously appealed the amount or existence of
the debt and the Board of Veterans Appeals decided the appeal on the
merits or if the employee failed to pursue an appeal within the time
provided by regulations, the Secretary or designee shall provide the
employee with written notice prior to collecting the debt by salary
offset. The notice will state:
(1) The determinations and information required by Sec. 1.983(b)(1)-
(5), (7), and (12)-(14);
(2) That the employee's appeal of the existence or amount of the
debt was determined on the merits or that the employee failed to pursue
an appeal within the time provided, and VA's decision is final except as
otherwise provided in agency regulations;
(3) That the employee may request a waiver of the debt pursuant to
[[Page 123]]
Sec. 1.911a(c)(2) subject to the time limits of 38 U.S.C. 5302;
(4) That the employee may request an oral or paper hearing on the
offset schedule and receive a decision within 60 days of such request
under the procedures and time limit set forth in Sec. 1.984 and that
such a request will stay the commencement of salary offset.
(d) If the employee has appealed the existence or amount of the debt
and the Board of Veterans Appeals has not decided the appeal on the
merits, collection of the debt by salary offset will be suspended until
the appeal is decided or the employee ceases to pursue the appeal.
(Authority: 5 U.S.C. 5514)
Sec. 1.983 Notice requirements before salary offsets of debts not involving benefits under the laws administered by VA.
(a) For a debt not involving benefits under the laws administered by
VA, the Secretary or designee will review the records relating to the
debt to assure that it is owed prior to providing the employee with a
notice of the debt.
(b) Except as provided in Sec. 1.980(e), salary offset of debts not
involving benefits under the laws administered by VA will not be made
unless the Secretary or designee first provides the employee with a
minimum of 30 calendar days written notice. This notice will state:
(1) The Secretary or designee's determination that a debt is owed;
(2) The amount of the debt owed and the facts giving rise to the
debt;
(3) The Secretary or designee's intention to collect the debt by
means of deduction from the employee's current disposable pay account
until the debt and all accumulated interest and associated costs are
paid in full;
(4) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(5) An explanation of VA's requirements concerning interest,
administrative costs, and penalties;
(6) The employee's right to inspect and copy VA records relating to
the debt or, if the employee or his or her representative cannot
personally inspect the records, to request and receive a copy of such
records;
(7) The employee's right to enter into a written agreement with the
Secretary or designee for a repayment schedule differing from that
proposed by the Secretary or designee, so long as the terms of the
repayment schedule proposed by the employee are agreeable to the
Secretary or designee;
(8) The employee's right to request an oral or paper hearing,
conducted by an administrative law judge or a hearing official of VA or
another agency, on the Secretary or designee's determination of the
existence of the debt, the amount of the debt, or the percentage of
disposable pay to be deducted each pay period, so long as a request is
filed by the employee as prescribed by the Secretary;
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a request for a hearing (oral or
paper) will stay the commencement of salary offset;
(11) That a final decision after the hearing will be issued at the
earliest practical date, but no later than 60 calendar days after the
filing of the request for the hearing, unless the employee requests and
the hearing officer grants a delay in the proceedings;
(12) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR
part 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable statutory authority; or
(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or
any other applicable statutory authority.
(13) Any other rights and remedies available to the employee under
statutes or regulations governing the program for which the collection
is being made; and
(14) Unless there are applicable contractual or statutory provisions
to the contrary, that amounts paid on or deducted for the debt which are
later waived or found not owed to the United States will be promptly
refunded to the employee.
(Authority: 5 U.S.C. 5514)
[[Page 124]]
Sec. 1.984 Request for a hearing.
(a) Except as provided in paragraph (b) of this section and in
Sec. 1.982, an employee wishing a hearing on the existence or amount of
the debt or on the proposed offset schedule must send such a request to
the office which sent the notice of the debt. The employee must also
specify whether an oral or paper hearing is requested. If an oral
hearing is requested, the request should explain why the matter cannot
be resolved by review of the documentary evidence. The request must be
received by the office which sent the notice of the debt not later than
20 calendar days from the date of the notice.
(b) If the employee files a request for a hearing after the
expiration of the 20 day period provided for in paragraph (a) of this
section, VA may accept the request if the employee shows that the delay
was because of circumstances beyond his or her control or because of
failure to receive the written notice of the filing deadline (unless the
employee has actual notice of the filing deadline).
(Authority: 5 U.S.C. 5514)
Sec. 1.985 Form, notice of, and conduct of hearing.
(a) After an employee requests a hearing, the hearing official or
administrative law judge shall notify the employee of the form of the
hearing to be provided. If the hearing will be oral, the notice shall
set forth the date, time, and location for the hearing. If the hearing
will be paper, the employee shall be notified that he or she should
submit his or her position and arguments in writing to the hearing
official or administrative law judge by a specified date after which the
record shall be closed. This date shall give the employee reasonable
time to submit this information.
(b) An employee who requests an oral hearing shall be provided an
oral hearing if the hearing official or administrative law judge
determines that the matter cannot be resolved by review of documentary
evidence, for example, when an issue of credibility or veracity is
involved. If a determination is made to provide an oral hearing, the
hearing official or administrative law judge may offer the employee the
opportunity for a hearing by telephone conference call. If this offer is
rejected or if the hearing official or administrative law judge declines
to offer a telephone conference call hearing, the employee shall be
provided an oral hearing permitting the personal appearance of the
employee, his or her personal representative, and witnesses. A record or
transcript of every oral hearing shall be made. Witnesses shall testify
under oath or affirmation. VA shall not be responsible for the payment
of any expenses incident to attendance at the hearing which are incurred
by either the employee, his or her representative or Counsel, or
witnesses.
(c) In all other cases where an employee requests a hearing, a paper
hearing shall be provided. A paper hearing shall consist of a review of
the written evidence of record by the administrative law judge or
hearing official.
(d) In any hearing under this section, the administrative law judge
or hearing official may exclude from consideration evidence or testimony
which is irrelevant, immaterial, or unduly repetitious.
(Authority: 5 U.S.C. 5514).
Sec. 1.986 Result if employee fails to meet deadlines.
An employee waives the right to a hearing, and will have his or her
disposable pay offset in accordance with the offset schedule, if the
employee:
(a) Fails to file a request for a hearing as prescribed in
Sec. 1.982, Sec. 1.984, or Secs. 19.1 through 19.200, whichever is
applicable, unless such failure is excused as provided in Sec. 1.984(b);
or
(b) Fails to appear at an oral hearing of which he or she had been
notified unless the administrative law judge or hearing official
determines that failure to appear was due to circumstances beyond the
employee's control.
(Authority: 5 U.S.C. 5514)
Sec. 1.987 Review by the hearing official or administrative law judge.
(a) The hearing official or administrative law judge shall uphold
VA's determination of the existence and amount of the debt unless
determined
[[Page 125]]
to be erroneous by a preponderance of the evidence.
(b) The hearing official or administrative law judge shall uphold
VA's offset schedule unless the schedule would result in extreme
hardship to the employee.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.988 Written decision following a hearing requested under Sec. 1.984.
(a) The hearing official or administrative law judge must issue a
written decision not later than 60 days after the employee files a
request for the hearing.
(b) Written decisions provided after a hearing requested under
Sec. 1.984 will include:
(1) A statement of the facts presented to support the nature and
origin of the alleged debt;
(2) The hearing official or administrative law judge's analysis,
findings and conclusions concerning as applicable:
(i) The employee's or VA's grounds;
(ii) The amount and validity of the alleged debt; and
(iii) The repayment schedule.
(c) The decision in a case where a paper hearing was provided shall
be based upon a review of the written record. The decision in a case
where an oral hearing was provided shall be based upon the hearing and
the written record.
(Authority: 5 U.S.C. 5514)
Sec. 1.989 Review of VA records related to the debt.
(a) Notification by employee. An employee who intends to inspect or
copy VA records related to the debt as permitted by a notice provided
under Sec. 1.983 must send a letter to the office which sent the notice
of the debt stating his or her intention. The letter must be received by
that office within 20 calendar days of the date of the notice.
(b) VA response. In response to timely notice submitted by the
debtor as described in paragraph (a) of this section, VA will notify the
employee of the location and time when the employee may inspect and copy
records related to the debt.
(Authority: 5 U.S.C. 5514)
Sec. 1.990 Written agreement to repay debt as alternative to salary offset.
(a) Notification by employee. The employee may propose, in response
to a notice under Sec. 1.983, a written agreement to repay the debt as
an alternative to salary offset. Any employee who wishes to do this must
submit a proposed written agreement to repay the debt which is received
by the office which sent the notice of the debt within 20 calendar days
of the date of the notice.
(b) VA response. In response to timely notice by the debtor as
described in paragraph (a) of this section, VA will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within VA's discretion to accept a repayment agreement
instead of proceeding by offset. In making this determination, VA will
balance its interest in collecting the debt against the hardship to the
employee. VA will accept a repayment agreement instead of offset only if
the employee is able to establish that offset would result in extreme
hardship.
(Authority: 5 U.S.C. 5514)
Sec. 1.991 Procedures for salary offset: when deductions may begin.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the notice to collect from the employee's
current pay as modified by a written decision issued under Secs. 1.982,
19.1 through 19.200 or Sec. 1.988 or by written agreement between the
employee and the VA under Sec. 1.990.
(b) If the employee filed a request for a hearing as provided by
Sec. 1.984 before the expiration of the period provided for in that
section, deductions will not begin until after the hearing official or
administrative law judge has provided the employee with a hearing, and
has rendered a final written decision.
(c) If the employee failed to file a timely request for a hearing,
deductions will begin on the date specified in the notice of intention
to offset, unless
[[Page 126]]
a hearing is granted pursuant to Sec. 1.984(b).
(d) If an employee retires or resigns or his or her employment ends
before collection of the amount of the indebtedness is completed, the
remaining indebtedness will be collected according to procedures for
administrative offset (see 4 CFR 101.1 through 105.5 and 5 CFR 831.1801
through 831.1807).
(Authority: 5 U.S.C. 5514)
Sec. 1.992 Procedures for salary offset.
(a) Types of collection. A debt will be collected in a lump-sum or
in installments. Collection will be in a lump-sum unless the employee is
financially unable to pay in one lump-sum, or if the amount of the debt
exceeds 15 percent of the employee's disposable pay. In these cases,
deduction will be by installments.
(b) Installment deductions. (1) A debt to be collected in
installments will be deducted at officially established pay intervals
from an employee's current pay account unless the employee and the
Secretary agree to alternative arrangements for repayment. The
alternative arrangement must be in writing and signed by both the
employee and Secretary or designee.
(2) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size and frequency of
installment deductions will bear a reasonable relation to the size of
the debt and the employee's ability to pay. However, the amount deducted
for any period will not exceed 15 percent of the disposable pay from
which the deduction is made, unless the employee has agreed in writing
to the deduction of a greater amount. If possible, the installment
payment will be sufficient in size and frequency to liquidate the debt
in three years. Installment payments of less than $25 per pay period or
$50 a month will be acceptable only in the most unusual circumstances.
(c) Imposition of interests, penalties, and administrative costs.
Interest, penalties, and administrative costs will be charged in
accordance with Sec. 1.919 and 4 CFR 102.13.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.993 Non-waiver of rights.
So long as there are not statutory or contractual provisions to the
contrary, an employee's involuntary payment (of all or a portion of a
debt) under these regulations will not be interpreted as a waiver of any
rights that the employee may have under 5 U.S.C. 5514.
(Authority: 5 U.S.C. 5514)
Sec. 1.994 Refunds.
VA will refund promptly to the appropriate individual amounts offset
under these regulations when:
(a) A debt is waived or otherwise found not owed the United States
(unless expressly prohibited by statute or regulation); or
(b) VA is directed by an administrative or judicial order to refund
amounts deducted from the employee's current pay.
(Authority: 5 U.S.C. 5514)
PART 2--DELEGATIONS OF AUTHORITY--Table of Contents
Sec.
2.1 Delegation of authority to employees to issue subpoenas, etc.
2.2 Delegation of authority to employees to take affidavits, to
administer oaths, etc.
2.3 [Reserved]
2.4 Delegation of authority to order paid advertising for use in
recruitment.
2.5 Delegation of authority to certify copies of documents, records, or
papers in Department of Veterans Affairs files.
2.6 Secretary's delegations of authority to certain officials (38
U.S.C. 512).
2.7 Delegation of authority to provide relief on account of
administrative error.
2.8 Delegation of authority to authorize allowances for Department of
Veterans Affairs employees who are notaries public.
Authority: 5 U.S.C. 302; 38 U.S.C. 501, 512; 44 U.S.C. 3702, unless
otherwise noted.
Editorial Note: Nomenclature changes to part 2 appear at 61 FR 7216,
Feb. 27, 1996.
[[Page 127]]
Sec. 2.1 Delegation of authority to employees to issue subpoenas, etc.
(a) Authority to issue subpoenas. Employees occupying or acting in
the positions designated in paragraph (b) of this section shall have the
power to issue subpoenas for (by countersigning VA Form 2-4003) and
compel the attendance of witnesses within a radius of 100 miles from the
place of hearing and to require the production of books, papers,
documents, and other evidence. Issuing officials shall use discretion
when exercising this power.
(b) Designated positions. The positions designated pursuant to
paragraph (a) of this section are: General Counsel, Deputy General
Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional Offices
and Centers having insurance or regional office activities, Under
Secretary for Health (for income matching programs), Director, Income
Verification Match Center (for income matching programs), and the
Associate Director for Operations, Income Verification Match Center (for
income matching programs).
(c) Means of service. Subpoenas issued pursuant to this section may
be served by registered or certified mail, return receipt requested,
addressed to the witness only. Personal service by any VA employee or
other authorized person may be made where authorized in writing by the
issuing official.
(d) Fees and mileage; district courts of the United States. Any
person required by such subpoena to attend as a witness shall be allowed
and paid the same fees and mileage as are paid witnesses in the district
courts of the United States. In case of disobedience to any such
subpoena, the aid of any district court of the United States may be
invoked in requiring attendance and testimony of witnesses and the
production of documentary evidence, and such court within the
jurisdiction in which the inquiry is carried on may, in the case of
contumacy or refusal to obey a subpoena issued to any officer, agent, or
employee of any corporation or to any other person, issue an order
requiring such corporation or other person to appear or to give evidence
touching the matter in question, and any failure to obey such order of
the court may be punished by such court as a contempt thereof.
(Authority: 38 U.S.C.A. 501, 5711)
[60 FR 40757, Aug. 10, 1995]
Sec. 2.2 Delegation of authority to employees to take affidavits, to administer oaths, etc.
(a) An employee to whom authority is delegated by the Secretary in
accordance with 38 U.S.C. 5711, or to whom authority was delegated by
the Secretary in accordance with title III, Pub. L. 844, 74th Congress,
section 616, Pub. L. 801, 76th Congress, and section 1211, Pub. L. 85-
56, is by virtue of such delegated authority, until such authority is
revoked or otherwise terminated, empowered to take affidavits, to
administer oaths and affirmations, to aid claimants in the preparation
and presentation of claims, and to make investigations, examine
witnesses, and certify to the correctness of papers and documents upon
any matter within the jurisdiction of the Department of Veterans
Affairs. Such employee is not authorized to administer oaths in
connection with the execution of affidavits relative to fiscal vouchers
and is not authorized to take acknowledgments to policy loan agreements
and applications for cash surrender value to United States Government
life insurance and National Service life insurance.
(b) Any such oath, affirmation, affidavit, or examination, when
certified under the hand of any such employee by whom it was
administered or taken and authenticated by the seal of the Department of
Veterans Affairs, may be offered or used in any court of the United
States and, without further proof of the identity or authority of such
employee, shall have like force and effect as if administered or taken
before a clerk of such court.
(c) The delegated authority from the Secretary to employees to take
affidavits, to administer oaths, etc., will be evidenced by VA Form 4505
series.
[24 FR 10018, Dec. 11, 1959]
[[Page 128]]
Sec. 2.3 [Reserved]
Sec. 2.4 Delegation of authority to order paid advertising for use in recruitment.
Paid advertisements may be used in recruitment for VA competitive
and excepted service positions. Authority to order such advertisements
is hereby delegated to Administration Heads, Assistant Secretaries,
Other Key Officials (the General Counsel; the Inspector General; the
Chairman, Board of Veterans' Appeals; the Chairman, Board of Contract
Appeals; and the Director, Office of Small and Disadvantaged Business
Utilization), Deputy Assistant Secretaries, to the deputies of such
officials, to the Deputy Assistant Secretary and Associate Deputy
Assistant Secretary for Human Resources Management, and to field
facility Directors.
(Authority: 5 U.S.C. 302(b)(2); 44 U.S.C. 3702)
[61 FR 20134, May 6, 1996]
Sec. 2.5 Delegation of authority to certify copies of documents, records, or papers in Department of Veterans Affairs files.
(a) Persons occupying or acting for the following positions in the
Office of the General Counsel are authorized to certify copies of public
documents, records, or papers belonging to or in the files of the
Department of Veterans Affairs for the purposes of 38 U.S.C. 302:
General Counsel, Deputy General Counsel, Assistant General Counsel,
Deputy Assistant General Counsel, and the Regional Counsel for Puerto
Rico.
(b) The person occupying or acting in the position of Chairman of
the Department of Veterans Affairs Board of Contract Appeals is
authorized to certify copies of decisions, orders, subpoenas, and other
documents, records, or papers issued by, belonging to, or in the files
of the Boards for the purposes of 38 U.S.C. 302.
(c) The person occupying or acting in the position of Chairman,
Board of Veterans Apeals, is authorized to certify copies of decisions,
orders, subpoenas, and other documents, records, or papers issued by,
belonging to, or in the files of the Board for the purposes of 38 U.S.C.
302.
(Authority: 38 U.S.C. 501)
[46 FR 18978, Mar. 27, 1981, as amended at 49 FR 30692, Aug. 1, 1984; 60
FR 48029, Sept. 18, 1995]
Sec. 2.6 Secretary's delegations of authority to certain officials (38 U.S.C. 512).
Employees occupying or acting in the positions designated below are
delegated authority as indicated:
(a) Veterans Health Services and Research Administration. The Chief
Medical Director is delegated authority:
(1) To act on all matters assigned to the Veterans Health Services
and Research Administration by statute (38 U.S.C. Ch. 73) and by
regulation, except such matters as require the personal attention or
action of the Secretary.
(2) To revise, exceed, delete, increase, or decrease fees contained
in Department of Veterans Affairs Veterans Health Services and Research
Administration Manual M-1, part I, appendix A (following agreement
therefor as provided in the contract with the intermediary involved), in
an approved State fee schedule, and to add additional fees when found to
be necessary, provided such fees are not in excess of those customarily
charged the general public, in the community concerned, for the same
service.
(3) To designate the Deputy Chief Medical Director, or other
physician of the Veterans Health Services and Research Administration,
and authority is hereby delegated such designee to perform the functions
prescribed in paragraph (a)(2) of this section.
(4) To revise, exceed, delete, increase or decrease dental fees
established in Department of Veterans Affairs Veterans Health Services
and Research Administration Manual M-4, chapter 6, and any amendments
thereto, and to add additional fees when found to be necessary,
provided: such fees are not in excess of those customarily charged the
general public, in the community concerned, for the same service.
[[Page 129]]
(5) To designate the Assistant Chief Medical Director for Dentistry,
and authority is hereby delegated such designee, to perform the
functions prescribed in paragraph (a)(4) of this section.
(6) To supervise programs for grants to the Republic of the
Philippines and medical care for Commonwealth Army veterans and
Philippine Scouts in Veterans Memorial Medical Center, Manila, pursuant
to the provisions of 38 U.S.C. ch. 17, subch. IV.
(7) To designate the Deputy Chief Medical Director of the Veterans
Health Sevices and Research Administration and authority is hereby
delegated such designee to designate a Department of Veterans Affairs
full-time physician or nonmedical Director to serve as an ex officio
member on advisory bodies to State Comprehensive Health Planning
agencies and to individual Regional Medical Programs in those areas in
which there is located one or more Department of Veterans Affairs
hospitals or other health facilities, who shall serve on such advisory
group as the representative of the Department of Veterans Affairs health
facilities located in that area.
(8) To authorize Directors of Department of Veterans Affairs
property and facilities under the charge and control of the Department
of Veterans Affairs to appoint police officers with the power to enforce
Federal laws and Department of Veterans Affairs regulations, to
investigate violations of those laws and to arrest for crimes committed
on Department of Veterans Affairs property to the full extent provided
by Department policies and procedures.
(Authority: 38 U.S.C. 501 and 512.)
(9) To develop and establish minimum safety and quality standards
for adaptive equipment provided under chapter 39 of title 38, United
States Code, or to appoint a designee to perform these functions.
(b) Veterans Benefits Administration--(1) General. The Chief
Benefits Director is delegated authority to act on all matters assigned
to the Veterans Benefits Administration except as provided in Sec. 1.771
of this chapter and to authorize supervisory or adjudicative personnel
within his/her jurisdiction to perform such functions as may be
assigned.
(2) Philippines. The Director, Department of Veterans Affairs
Regional Office, Manila, Philippines, is delegated authority to exercise
such authorities as are delegated to directors of regional offices in
the United States, which are appropriate to the administration in the
Republic of the Philippines of the laws administered by the Department
of Veterans Affairs.
(c) Office of Finance and Information Resources Management. (1) The
Assistant Secretary for Finance and Information Resources Management
(Chief Financial Officer) is delegated authority to act on all matters
assigned to his/her office, and to authorize supervisory personnel
within his/her jurisdiction to perform such functions as may be
assigned. Appropriate written notification will be furnished other
Federal agencies concerning such authorizations.
(2) The Assistant Secretary for Finance and Information Resources
Management (Chief Financial Officer) is delegated authority under 31
U.S.C. 1553(c)(1), to approve, in a fixed appropriation account to which
the period of availability for obligation has expired, obligational
increases related to contract changes when such transaction will cause
cumulative obligational increase for contract changes during a fiscal
year to exceed $4 million but not more than $25 million; for this
responsibility the Assistant Secretary for Finance and Information
Resources Management (Chief Financial Officer) shall act as a member of
the Office of the Secretary and shall report to and consult with the
Secretary on these matters.
(d) Administration heads and staff office directors. Authority is
delegated to the head of each administration and the director of each
staff office, and to any officer or board designated by them, to take
appropriate action (other than provided for in paragraph (e)(4)) in
connection with the collection of civil claims by VA for money or
property, as authorized in Sec. 1.900, et seq.
(e) General Counsel. (1) Under the Federal Tort Claims Act, pursuant
to the provisions of 28 U.S.C. 2672; Pub. L. 100-322; 38 U.S.C. 515, and
the delegation of
[[Page 130]]
authority from the Attorney General in 28 CFR appendix to part 14:
(i) Authority is delegated to the General Counsel, Deputy General
Counsel, Assistant General Counsel, or those authorized to act for them,
to consider, ascertain, adjust, determine, compromise, and settle any
claim accruing on and after January 18, 1967, and asserted under the
Federal Tort Claims Act, as amended by Pub. L. 89-506 (80 Stat. 306),
and to execute an appropriate voucher and other necessary instruments in
connection therewith; provided that any award, compromise, or settlement
in excess of $200,000 shall be effected only with the prior written
approval of the Attorney General or his designee; provided, further,
that whenever a settlement is effected in an amount in excess of
$100,000, a memorandum fully explaining the basis for the action taken
shall be sent to the Department of Justice.
(ii) Authority is delegated to the Regional Counsels or those
authorized to act for them and the Deputy Assistant General Counsel
(Professional Staff Group I) to consider, ascertain, adjust, determine,
compromise, and settle any claim under the Federal Tort Claims Act and
to execute an appropriate voucher and other necessary instruments in
connection therewith; provided that any award, compromise, or settlement
does not exceed $100,000; provided, further, that whenever a settlement
is effected by a Regional Counsel in an amount in excess of $50,000 a
memorandum fully explaining the basis for the action taken shall be sent
to the Assistant General Counsel (Professional Staff Group I).
(Authority: 38 U.S.C. 515(a); 28 CFR appendix to part 14)
(2) Under the provisions of 38 U.S.C. 515(b), the General Counsel,
Deputy General Counsel, Assistant General Counsel and Regional Counsel,
or those authorized to act for them, are authorized to consider,
ascertain, adjust, determine, and settle tort claims cognizable
thereunder and to execute an appropriate voucher and other necessary
instruments in connection with the final disposition of such claims.
(3) Under the provisions of ``The Federal Medical Care Recovery
Act,'' 42 U.S.C. 2651, et seq. (as implemented by part 43, title 28,
Code of Federal Regulations), authority is delegated to the General
Counsel, Deputy General Counsel, Assistant General Counsel (Professional
Staff Group I), Deputy Assistant General Counsel of said staff group,
and Regional Counsels or those authorized to act for them, to collect in
full, compromise, settle, or waive any claim and execute the release
thereof; however, claims in excess of $100,000 may be compromised,
settled, or waived only with the prior approval of the Department of
Justice.
(4) General Counsel. Under the Federal Claims Collection Act of
1966, 31 U.S.C. 3711, et seq., authority is delegated to the General
Counsel, Deputy General Counsel, Assistant General Counsel, Deputy
Assistant General Counsel and Regional Counsel, or those authorized to
act for them, to:
(i) Make appropriate determinations with respect to the litigative
probabilities of a claim (Sec. 1.932 of this chapter), the legal merits
of a claim (Sec. 1.942(e) of this chapter), and any other legal
considerations of a claim.
(ii) Collect in full a claim involving damage to or loss of
government property under the jurisdiction of the Department of Veterans
Affairs resulting from negligence or other legal wrong of a person
(other than an employee of the Government while acting within the scope
of his or her employment) and to compromise, suspend, or terminate any
such claim not exceeding $100,000.
(iii) Collect a claim in full from an individual or legal entity who
is liable for the cost of hospital, medical, surgical, or dental care
and treatment of a person, and to compromise, suspend, or terminate any
such claim not exceeding $100,000.
(Authority: Pub. L. 101-552, section 8(b))
(iv) The delegations of authority set forth in paragraphs (e)(4)(ii)
and (iii) of this section do not apply to the handling of any claim as
to which there is an indication of fraud, the presentation of a false
claim or misrepresentation on the part of the debtor or any other party
having an interest in the claim, or to any claim based in whole or in
part on conduct in violation of the
[[Page 131]]
antitrust laws. Such cases will be considered by the General Counsel,
who will make the determination in all instances as to whether the case
warrants referral to the Department of Justice. The delegations of
authority are applicable to those claims where the Department of Justice
determines that action based upon the alleged fraud, false claim, or
misrepresentation is not warranted.
(5) Pursuant to the provisions of the Military Personnel and
Civilian Employees' Claim Act of 1964, 31 U.S.C. 3721, as amended, the
General Counsel, Deputy General Counsel, Assistant General Counsel
(Professional Staff Group III), Deputy Assistant General Counsel of said
staff group, and Regional Counsel or those authorized to act for them,
are authorized to settle and pay a claim for not more than $40,000 made
by a civilian officer or employee of the Department of Veterans Affairs
for damage to, or loss of, personal property incident to his or her
service. (Pub. L. 97-226)
(6) Authority is delegated to the General Counsel and Deputy General
Counsel and to the Assistant General Counsel and Deputy Assistant
General Counsel of Professional Staff Group IV to make the final
decision on a complaint of discrimination on grounds of race, color,
religion, sex, national origin, age, disability, or reprisal brought by
an employee of the Department of Veterans Affairs or an applicant for
employment.
(Authority: 38 U.S.C. 512)
(7) Under the provisions of 38 U.S.C. 7316(e), authority is
delegated to the General Counsel, Deputy General Counsel, and the
Assistant General Counsel (Professional Staff Group I) to hold harmless
or provide liability insurance for any person to whom the immunity
provisions of section 7316 apply, for damage for personal injury or
death, or for property damage, negligently caused by such person while
furnishing medical care or treatment in the exercise of his or her
duties in or for the Veterans Health Administration, if such person is
assigned to a foreign country, detailed to State or political division
thereof, or is acting under any other circumstances which would preclude
the remedies of an injured third person against the United States,
provided by sections 1346(b) and 2672 of title 28, United States Code,
for such damage or injury.
(8) The General Counsel, Deputy General Counsel, and those
authorized to act for them, are authorized to conduct investigations,
examine witnesses, take affidavits, administer oaths and affirmations,
and certify copies of public or private documents on all matters within
the jurisdiction of the General Counsel. Pursuant to the provisions of
Sec. 2.2(c), the General Counsel, Deputy General Counsel, and those
authorized to act for them, are authorized to countersign VA Form 4505.
(9) The General Counsel, or the Deputy General Counsel acting as or
for the General Counsel, is authorized to designate, in accordance with
established standards, those legal opinions of the General Counsel which
will be considered precedent opinions involving veterans' benefits under
laws administered by the Department of Veterans Affairs.
(Authority: 38 U.S.C. 501, 512)
(10) Under the provisions of 38 U.S.C. 1729(c)(1), authority is
delegated to the General Counsel, Deputy General Counsel, Assistant
General Counsel (Professional Staff Group I), Deputy Assistant General
Counsel of said staff group, and Regional Counsel, or those authorized
to act for them, to collect in full, compromise, settle, or waive any
claim and execute the release thereof; however, claims in excess of
$100,000 may only be compromised, settled, or waived with the prior
approval of the General Counsel, Deputy General Counsel, Assistant
General Counsel (Professional Staff Group I), or Deputy Assistant
General Counsel of said staff group, or those authorized to act for
them.
(Authority: 38 U.S.C. 1729(c)(1))
(11) The General Counsel and the Deputy General Counsel are
authorized to make final Departmental decisions on appeals under the
Freedom of Information Act, the Privacy Act, 38 U.S.C. 5701 and 5705.
(Authority: 38 U.S.C. 512)
(12) All authority delegated in this paragraph to Regional Counsels
will be
[[Page 132]]
exercised by them under the supervision of and in accordance with
instructions issued by the General Counsel.
(f) National Cemetery System. Director, National Cemetery System is
delegated authority:
(1) To act on all matters assigned to the National Cemetery System
by statute (38 U.S.C. chapter 24) and by regulation except where
specifically requiring the personal attention or action of the Secretary
and to authorize supervisory personnel within the jurisdiction of the
Director, National Cemetery System, to perform such functions as may be
assigned.
(2) To designate, as deemed necessary, Superintendents of National
Cemeteries as special investigators under 38 U.S.C. 901, however, such
law enforcement authority is limited to enforcement of rules and
regulations governing conduct on property under the charge and control
of the Department of Veterans Affairs, as those rules and regulations
apply to the cemetery over which the individual Superintendent exercises
control and jurisdiction. Such designation will not authorize the
carrying of firearms by any Superintendent.
(3) To accept donations of a minor nature, such as, individual trees
for planting in burial areas and privately purchased grave markers.
(4) To name features in national cemeteries, such as, roads, walks,
and special structures.
(5) To establish policies and specifications for inscriptions on
Government headstones, markers, and private monuments.
(Authority: 38 U.S.C. 501, 512, 2404)
(g) Inspector General. (1) The Secretary delegates to the Inspector
General, the authority, as head of the Department of Veterans Affairs,
to make written requests under the Privacy Act of 1974, 5 U.S.C.
552a(b)(7), for the transfer of records or copies of records maintained
by other agencies which are necessary to carry out an authorized law
enforcement activity of the Office of Inspector General. This delegation
is made pursuant to 38 U.S.C. 512. The Inspector General may redelegate
the foregoing authority within the Office of Inspector General, but the
delegation may only be to an official of sufficient rank to ensure that
the request for the records has been the subject of a high level
evaluation of the need for the information.
(2) The Inspector General delegates the authority under the
Inspector General Act of 1978, and redelegates the authority under
paragraph (a) of this section, to request Privacy Act-protected records
from Federal agencies pursuant to subsection (b)(7) of the Privacy Act
to each of the following Office of Inspector General officials: (i)
Deputy Inspector General, (ii) Assistant Inspector General for
Investigations, (iii) Deputy Assistant Inspector General for
Investigations, (iv) Chief of Operations, and (v) Special Agents in
Charge of Field Offices of Investigations. These officials may not
redelegate this authority.
(Authority: 5 U.S.C. 552(a))
[25 FR 11095, Nov. 23, 1960]
Editorial Note: For Federal Register citations affecting Sec. 2.6,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 2.7 Delegation of authority to provide relief on account of administrative error.
(a) Section 503(a) of title 38 U.S.C., provides that if the
Secretary determines that benefits administered by the Department of
Veterans Affairs have not been provided by reason of administrative
error on the part of the Federal Government or any of its employees, the
Secretary is authorized to provide such relief on account of such error
as the Secretary determines equitable, including the payment of moneys
to any person whom he determines equitably entitled thereto.
(b) Section 210(c)(3) of title 38 U.S.C., provides that if the
Secretary determines that any veteran, widow, child of a veteran, or
other person, has suffered loss, as a consequence of reliance upon a
determination by the Department of Veterans Affairs of eligibility or
entitlement to benefits, without knowledge that it was erroneously made,
the Secretary is authorized to provide such relief as the Secretary
determines equitable, including the payment of moneys to any person
equitably entitled thereto. The Secretary is also required
[[Page 133]]
to submit an annual report to the Congress, containing a brief summary
of each recommendation for relief and its disposition. Preparation of
the report shall be the responsibility of the General Counsel.
(c) The authority to grant the equitable relief, referred to in
paragraphs (a) and (b) of this section, has not been delegated and is
reserved to the Secretary. Recommendation for the correction of
administrative error and for appropriate equitable relief therefrom will
be submitted to the Secretary, through the General Counsel. Such
recommendation may be initiated by the head of the administration having
responsibility for the benefit, or of any concerned staff office, or by
the Chairman, Board of Veterans Appeals. When a recommendation for
relief under paragraph (a) or (b) of this section is initiated by the
head of a staff office, or the Chairman, Board of Veterans Appeals, the
views of the head of the administration having responsibility for the
benefit will be obtained and transmitted with the recommendation of the
initiating office.
[37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54
FR 34981, Aug. 23, 1989]
Sec. 2.8 Delegation of authority to authorize allowances for Department of Veterans Affairs employees who are notaries public.
(a) Employees occupying or acting in the positions designated in
paragraph (b) of this section are authorized to designate those
employees who are required to serve as notaries public in connection
with the performance of official business and to pay an allowance for
the costs therefor not to exceed the expense required to be incurred by
them in order to obtain their commission.
(Authority: 5 U.S.C. 5945)
(b) Designated positions: Deputy Secretary, Chief Benefits Director,
Director, Office of Data Management and Telecommunications, Chief
Medical Director, General Counsel, Directors of regional offices,
hospitals, domiciliaries, and centers.
[35 FR 13771, Aug. 29, 1970, as amended at 49 FR 30693, Aug. 1, 1984]
PART 3--ADJUDICATION--Table of Contents
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
General
Sec.
3.1 Definitions.
3.2 Periods of war.
3.3 Pension.
3.4 Compensation.
3.5 Dependency and indemnity compensation.
3.6 Duty periods.
3.7 Persons included.
3.8 Philippine and Insular Forces.
3.9 Philippine service.
3.10 [Reserved]
3.11 Homicide.
3.12 Character of discharge.
3.12a Minimum active-duty service requirement.
3.13 Discharge to change status.
3.14 Validity of enlistments.
3.15 Computation of service.
3.16 Service pension.
3.17 Disability and death pension; Mexican border period and later war
periods.
3.18--3.19 [Reserved]
3.20 Surviving spouse's benefit for month of veteran's death.
3.21 Monetary rates.
3.22 Benefits at DIC rates in certain cases when death is not service
connected.
3.23 Improved pension rates--Veterans and surviving spouses.
3.24 Improved pension rates--Surviving children.
3.25 Parents' dependency and indemnity compensation (DIC)--Method of
payment computation.
3.26 Section 306 and old-law pension annual income limitations.
3.27 Automatic adjustment of benefit rates.
3.28 Automatic adjustment of section 306 and old-law pension income
limitations.
3.29 Rounding.
3.30 Frequency of payment of improved pension and parents' dependency
and indemnity compensation (DIC).
3.31 Commencement of the period of payment.
3.32 Exchange rates for foreign currencies.
Relationship
3.50 Spouse and surviving spouse.
3.52 Marriages deemed valid.
3.53 Continuous cohabitation.
3.54 Marriage dates.
3.55 Reinstatement of benefits eligibility based upon terminated
marital relationships.
3.56 [Reserved]
3.57 Child.
[[Page 134]]
3.58 Child adopted out of family.
3.59 Parent.
3.60 Definition of ``living with''.
Administrative
3.100 Delegations of authority.
3.102 Reasonable doubt.
3.103 Procedural due process and appellate rights.
3.104 Finality of decisions.
3.105 Revision of decisions.
3.106 Renouncement.
3.107 Awards where not all dependents apply.
3.108 State Department as agent of Department of Veterans Affairs.
3.109 Time limit.
3.110 Computation of time limit.
3.111 [Reserved]
3.112 Fractions of one cent.
3.113 Signature by mark.
3.114 Change of law or Department of Veterans Affairs issue.
3.115 Access to financial records.
Claims
3.150 Forms to be furnished.
3.151 Claims for disability benefits.
3.152 Claims for death benefits.
3.153 Claims filed with Social Security.
3.154 Injury due to hospital treatment, etc.
3.155 Informal claims.
3.156 New and material evidence.
3.157 Report of examination or hospitalization as claim for increase or
to reopen.
3.158 Abandoned claims.
3.159 Department of Veterans Affairs assistance in developing claims.
3.160 Status of claims.
Evidence Requirements
3.200 Testimony certified or under oath.
3.201 Exchange of evidence; Social Security and Department of Veterans
Affairs.
3.202 Evidence from foreign countries.
3.203 Service records as evidence of service and character of
discharge.
3.204 Evidence of dependents and age.
3.205 Marriage.
3.206 Divorce.
3.207 Void or annulled marriage.
3.208 Claims based on attained age.
3.209 Birth.
3.210 Child's relationship.
3.211 Death.
3.212 Unexplained absence for 7 years.
3.213 Change of status affecting entitlement.
3.214 Court decisions; unremarried surviving spouses.
3.215 Termination of marital relationship or conduct.
3.216 Mandatory disclosure of social security number.
Dependency, Income and Estate
Regulations Applicable to Programs in Effect Prior to January 1, 1979
3.250 Dependency of parents; compensation.
3.251 Income of parents; dependency and indemnity compensation.
3.252 Annual income; pension; Mexican border period and later war
periods.
3.253--3.255 [Reserved]
3.256 Eligibility reporting requirements.
3.257 Children; no surviving spouse entitled.
3.258--3.259 [Reserved]
3.260 Computation of income.
3.261 Character of income; exclusions and estates.
3.262 Evaluation of income.
3.263 Corpus of estate; net worth.
3.270 Applicability of various dependency, income and estate
regulations.
Regulations Applicable to the Improved Pension Program Which Became
Effective January 1, 1979
3.271 Computation of income.
3.272 Exclusions from income.
3.273 Rate computation.
3.274 Relationship of net worth to pension entitlement.
3.275 Criteria for evaluating net worth.
3.276 Certain transfers or waivers disregarded.
3.277 Eligibility reporting requirements.
Ratings and Evaluations; Basic Entitlement Considerations
3.301 Line of duty and misconduct.
3.302 Service connection for mental unsoundness in suicide.
Ratings and Evaluations; Service Connection
3.303 Principles relating to service connection.
3.304 Direct service connection; wartime and peacetime.
3.305 Direct service connection; peacetime service before January 1,
1947.
3.306 Aggravation of preservice disability.
3.307 Presumptive service connection for chronic, tropical or prisoner-
of-war related disease, or disease associated with exposure to
certain herbicide agents; wartime and service on or after
January 1, 1947.
3.308 Presumptive service connection; peacetime service before January
1, 1947.
3.309 Disease subject to presumptive service connection.
3.310 Proximate results, secondary conditions.
3.311 Claims based on exposure to ionizing radiation.
3.312 Cause of death.
3.313 Claims based on service in Vietnam.
3.314 Basic pension determinations.
[[Page 135]]
3.315 Basic eligibility determinations; dependents, loans, education.
3.316 Claims based on chronic effects of exposure to mustard gas and
Lewisite.
3.317 Compensation for certain disabilities due to undiagnosed
illnesses.
3.318--3.320 [Reserved]
3.321 General rating considerations.
3.322 Rating of disabilities aggravated by service.
3.323 Combined ratings.
3.324 Multiple noncompensable service-connected disabilities.
3.325 [Reserved]
3.326 Examinations.
3.327 Reexaminations.
3.328 Independent medical opinions.
3.329 [Reserved]
3.330 Resumption of rating when veteran subsequently reports for
Department of Veterans Affairs examination.
3.331--3.339 [Reserved]
3.340 Total and permanent total ratings and unemployability.
3.341 Total disability ratings for compensation purposes.
3.342 Permanent and total disability ratings for pension purposes.
3.343 Continuance of total disability ratings.
3.344 Stabilization of disability evaluations.
Ratings for Special Purposes
3.350 Special monthly compensation ratings.
3.351 Special monthly dependency and indemnity compensation, death
compensation, pension and spouse's compensation ratings.
3.352 Criteria for determining need for aid and attendance and
``permanently bedridden.''
3.353 Determinations of incompetency and competency.
3.354 Determinations of insanity.
3.355 Testamentary capacity for insurance purposes.
3.356 Conditions which determine permanent incapacity for self-support.
3.357 Civil service preference ratings.
3.358 Determinations for disability or death from hospitalization,
medical or surgical treatment, examinations or vocational
rehabilitation training (Sec. 3.800).
3.359 Determination of service connection for former members of the
Armed Forces of Czechoslovakia or Poland.
3.360 Service-connected health-care eligibility of certain persons
administratively discharged under other than honorable
condition.
Rating Considerations Relative to Specific Diseases
3.370 Pulmonary tuberculosis shown by X-ray in active service.
3.371 Presumptive service connection for tuberculous disease; wartime
and service on or after January 1, 1947.
3.372 Initial grant following inactivity of tuberculosis.
3.373 [Reserved]
3.374 Effect of diagnosis of active tuberculosis.
3.375 Determination of inactivity (complete arrest) in tuberculosis.
3.376--3.377 [Reserved]
3.378 Changes from activity in pulmonary tuberculosis pension cases.
3.379 Anterior poliomyelitis.
3.380 Diseases of allergic etiology.
3.381 Determination of service connection for dental disabilities.
3.382 Evidence to establish service connection for dental disabilities.
3.383 Special consideration for paired organs and extremities.
3.384 [Reserved]
3.385 Disability due to impaired hearing.
Effective Dates
3.400 General.
3.401 Veterans.
3.402 Surviving spouse.
3.403 Children.
3.404 Parents.
Apportionments
3.450 General.
3.451 Special apportionments.
3.452 Veterans benefits apportionable.
3.453 Veterans compensation or service pension or retirement pay.
3.454 Veterans disability pension.
3.458 Veteran's benefits not apportionable.
3.459 Death compensation.
3.460 Death pension.
3.461 Dependency and indemnity compensation.
Reductions and Discontinuances
3.500 General.
3.501 Veterans.
3.502 Surviving spouses.
3.503 Children.
3.504 Parents; aid and attendance.
Hospitalization Adjustments
3.551 Reduction because of hospitalization.
3.552 Adjustment of allowance for aid and attendance.
3.553--3.555 [Reserved]
3.556 Adjustment on discharge or release.
3.557 Incompetents; estate over $1,500 and institutionalized.
3.558 Resumption and payment of withheld benefits; incompetents $1,500
estate cases.
3.559 Resumption--$1,500 cases where estate includes chose in action.
[[Page 136]]
Adjustments and Resumptions
3.650 Rate for additional dependent.
3.651 Change in status of dependents.
3.652 Periodic certification of continued eligibility.
3.653 Foreign residence.
3.654 Active service pay.
3.655 Failure to report for Department of Veterans Affairs examination.
3.656 Disappearance of veteran.
3.657 Surviving spouse becomes entitled, or entitlement terminates.
3.658 Offsets; dependency and indemnity compensation.
3.659 Two parents in same parental line.
3.660 Dependency, income and estate.
3.661 Eligibility Verification Reports.
3.662--3.664 [Reserved]
3.665 Penal institutions--compensation.
3.666 Penal institutions--pension.
3.667 School attendance.
3.668 [Reserved]
3.669 Forfeiture.
Concurrent Benefits and Elections
3.700 General.
3.701 Elections of pension or compensation.
3.702 Dependency and indemnity compensation.
3.703 Two parents in same parental line.
3.704 Elections within class of dependents.
3.705--3.706 [Reserved]
3.707 Dependents' educational assistance.
3.708 Federal Employees' Compensation.
3.710 Civil service annuitants.
3.711 Improved pension elections.
3.712 Improved pension elections; surviving spouses of Spanish-American
War veterans.
3.713 Effective dates of improved pension elections.
3.714 Improved pension elections--public assistance beneficiaries.
3.715 Radiation Exposure Compensation Act of 1990.
Retirement
3.750 Retirement pay.
3.751 Statutory awards; retired service personnel.
3.752 [Reserved]
3.753 Public Health Service.
3.754 Emergency officers' retirement pay.
Special Benefits
3.800 Disability or death due to hospitalization, etc.
3.801 Special acts.
3.802 Medal of Honor.
3.803 Naval pension.
3.804 Special allowance under 38 U.S.C. 1312.
3.805 Loan guaranty for surviving spouses; certification.
3.806 Death gratuity; certification.
3.807 Dependents' educational assistance; certification.
3.808 Automobiles or other conveyances; certification.
3.809 Specially adapted housing under 38 U.S.C. 2101(a).
3.809a Special home adaptation grants under 38 U.S.C. 2101(b).
3.810 Clothing allowance.
3.811 [Reserved]
3.812 Special allowance payable under section 156 of Pub. L. 97-377.
3.813 Interim benefits for disability or death due to chloracne or
porphyria cutanea tarda.
Incompetents, Guardianship and Institutional Awards
3.850 General.
3.851 St. Elizabeths Hospital, Washington, DC.
3.852 Institutional awards.
3.853 Incompetents; estate over $25,000.
3.854 Limitation on payments for minor.
3.855 Beneficiary rated or reported incompetent.
3.856 Change of name of female fiduciary.
3.857 Children's benefits to fiduciary of surviving spouse.
Forfeiture
3.900 General.
3.901 Fraud.
3.902 Treasonable acts.
3.903 Subversive activities.
3.904 Effect of forfeiture after veteran's death.
3.905 Declaration of forfeiture or remission of forfeiture.
Protection
3.950 Helpless children; Spanish-American and prior wars.
3.951 Preservation of disability ratings.
3.952 Protected ratings.
3.953 Pub. L. 85-56 and Pub. L. 85-857.
3.954 Burial allowance.
3.955--3.956 [Reserved]
3.957 Service connection.
3.958 Federal employees' compensation cases.
3.959 Tuberculosis.
3.960 Section 306 and old-law pension protection.
Accrued
3.1000 Under 38 U.S.C. 5121.
3.1001 Hospitalized competent veterans.
3.1002 Political subdivisions of United States.
3.1003 Returned and canceled checks.
3.1004--3.1006 [Reserved]
3.1007 Hospitalized incompetent veterans.
3.1008 Accrued benefits payable to foreign beneficiaries.
3.1009 Personal funds of patients.
[[Page 137]]
Subpart B--Burial Benefits
3.1600 Payment of burial expenses of deceased veterans.
3.1601 Claims and evidence.
3.1602 Special conditions governing payments.
3.1603 Authority for burial of certain unclaimed bodies.
3.1604 Payments from non-Department of Veterans Affairs sources.
3.1605 Death while traveling under prior authorization or while
hospitalized by the Department of Veterans Affairs.
3.1606 Transportation items.
3.1607 Cost of flags.
3.1608 Nonallowable expenses.
3.1609 Forfeiture.
3.1610 Burial in national cemeteries; burial of unclaimed bodies.
3.1611 Official Department of Veterans Affairs representation at
funeral.
3.1612 Monetary allowance in lieu of a Government-furnished headstone
or marker.
Editorial Note: Nomenclature changes to part 3 appear at 61 FR 7216,
Feb. 27, 1996.
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
Authority: 38 U.S.C. 501(a), unless otherwise noted.
General
Sec. 3.1 Definitions.
(a) Armed Forces means the United States Army, Navy, Marine Corps,
Air Force, and Coast Guard, including their Reserve components.
(b) Reserve component means the Army, Naval, Marine Corps, Air
Force, and Coast Guard Reserves and the National and Air National Guard
of the United States.
(c) Reserves means members of a Reserve component of one of the
Armed Forces.
(d) Veteran means a person who served in the active military, naval,
or air service and who was discharged or released under conditions other
than dishonorable.
(1) For compensation and dependency and indemnity compensation the
term veteran includes a person who died in active service and whose
death was not due to willful misconduct.
(2) For death pension the term veteran includes a person who died in
active service under conditions which preclude payment of service-
connected death benefits, provided such person had completed at least 2
years honorable military, naval or air service, as certified by the
Secretary concerned. (See Secs. 3.3(b)(3)(i) and 3.3(b)(4)(i))
(Authority: 38 U.S.C. 501)
(e) Veteran of any war means any veteran who served in the active
military, naval or air service during a period of war as set forth in
Sec. 3.2.
(f) Period of war means the periods described in Sec. 3.2.
(g) Secretary concerned means:
(1) The Secretary of the Army, with respect to matters concerning
the Army;
(2) The Secretary of the Navy, with respect to matters concerning
the Navy or the Marine Corps;
(3) The Secretary of the Air Force, with respect to matters
concerning the Air Force;
(4) The Secretary of Transportation, with respect to matters
concerning the Coast Guard;
(5) The Secretary of Health and Human Services, with respect to
matters concerning the Public Health Service; and
(6) The Secretary of Commerce, with respect to matters concerning
the Coast and Geodetic Survey, the Environmental Science Services
Administration, and the National Oceanic and Atmospheric Administration.
(h) Discharge or release includes retirement from the active
military, naval, or air service.
(i) State means each of the several States, Territories and
possessions of the United States, the District of Columbia, and
Commonwealth of Puerto Rico.
(j) Marriage means a marriage valid under the law of the place where
the parties resided at the time of marriage, or the law of the place
where the parties resided when the right to benefits accrued.
(Authority: 38 U.S.C. 103(c))
(k) Service-connected means, with respect to disability or death,
that such disability was incurred or aggravated, or that the death
resulted from a disability incurred or aggravated, in line
[[Page 138]]
of duty in the active military, naval, or air service.
(l) Nonservice-connected means, with respect to disability or death,
that such disability was not incurred or aggravated, or that the death
did not result from a disability incurred or aggravated, in line of duty
in the active military, naval, or air service.
(m) In line of duty means an injury or disease incurred or
aggravated during a period of active military, naval, or air service
unless such injury or disease was the result of the veteran's own
willful misconduct or, for claims filed after October 31, 1990, was a
result of his or her abuse of alcohol or drugs. A service department
finding that injury, disease or death occurred in line of duty will be
binding on the Department of Veterans Affairs unless it is patently
inconsistent with the requirements of laws administered by the
Department of Veterans Affairs. Requirements as to line of duty are not
met if at the time the injury was suffered or disease contracted the
veteran was:
(1) Avoiding duty by desertion, or was absent without leave which
materially interfered with the performance of military duty.
(2) Confined under a sentence of court-martial involving an
unremitted dishonorable discharge.
(3) Confined under sentence of a civil court for a felony as
determined under the laws of the jurisdiction where the person was
convicted by such court.
(Authority: 38 U.S.C. 105)
Note: See Sec. 3.1(y)(2)(iii) for applicability of in line of duty
in determining former prisoner of war status.
(n) Willful misconduct means an act involving conscious wrongdoing
or known prohibited action. A service department finding that injury,
disease or death was not due to misconduct will be binding on the
Department of Veterans Affairs unless it is patently inconsistent with
the facts and the requirements of laws administered by the Department of
Veterans Affairs.
(1) It involves deliberate or intentional wrongdoing with knowledge
of or wanton and reckless disregard of its probable consequences.
(2) Mere technical violation of police regulations or ordinances
will not per se constitute willful misconduct.
(3) Willful misconduct will not be determinative unless it is the
proximate cause of injury, disease or death. (See Secs. 3.301, 3.302.)
(o) Political subdivision of the United States includes the
jurisdiction defined as a State in paragraph (i) of this section, and
the counties, cities or municipalities of each.
(p) Claim--Application means a formal or informal communication in
writing requesting a determination of entitlement or evidencing a belief
in entitlement, to a benefit.
(q) Notice means written notice sent to a claimant or payee at his
or her latest address of record.
(r) Date of receipt means the date on which a claim, information or
evidence was received in the Department of Veterans Affairs, except as
to specific provisions for claims or evidence received in the State
Department (Sec. 3.108), or in the Social Security Administration
(Secs. 3.153, 3.201), or Department of Defense as to initial claims
filed at or prior to separation.
(s) On the borders thereof means, with regard to service during the
Mexican border period, the States of Arizona, California, New Mexico,
and Texas, and the nations of Guatemala and British Honduras.
(Authority: 38 U.S.C. 101(30))
(t) In the waters adjacent thereto means, with regard to service
during the Mexican border period, the waters (including the islands
therein) which are within 750 nautical miles (863 statute miles) of the
coast of the mainland of Mexico.
(Authority: 38 U.S.C. 101(30))
(u) Section 306 pension means those disability and death pension
programs in effect on December 31, 1978, which arose out of Pub. L. 86-
211; 73 Stat. 432.
(v) Old-Law pension means the disability and death pension programs
that were in effect on June 30, 1960. Also known as protected pension,
i.e. protected under section 9(b) of the Veteran's Pension Act of 1959
(Pub. L. 86-211; 73 Stat. 432).
[[Page 139]]
(w) Improved pension means the disability and death pension programs
becoming effective January 1, 1979, under authority of Pub. L. 95-588;
92 Stat. 2497.
(x) Service pension is the name given to Spanish-American War
pension. It is referred to as a service pension because entitlement is
based solely on service without regard to nonservice-connected
disability, income and net worth.
(Authority: 38 U.S.C. 1512, 1536)
(y) Former prisoner of war. The term former prisoner of war means a
person who, while serving in the active military, naval or air service,
was forcibly detained or interned in the line of duty by an enemy or
foreign government, the agents of either, or a hostile force.
(1) Decisions based on service department findings. The Department
of Veterans Affairs shall accept the findings of the appropriate service
department that a person was a prisoner of war during a period of war
unless a reasonable basis exists for questioning it. Such findings shall
be accepted only when detention or internment is by an enemy government
or its agents.
(2) Other decisions. In all other situations, including those in
which the Department of Veterans Affairs cannot accept the service
department findings, the following factors shall be used to determine
prisoner of war status:
(i) Circumstances of detention or internment. To be considered a
former prisoner of war, a serviceperson must have been forcibly detained
or interned under circumstances comparable to those under which persons
generally have been forcibly detained or interned by enemy governments
during periods of war. Such circumstances include, but are not limited
to, physical hardships or abuse, psychological hardships or abuse,
malnutrition, and unsanitary conditions. Each individual member of a
particular group of detainees or internees shall, in the absence of
evidence to the contrary, be considered to have experienced the same
circumstances as those experienced by the group.
(ii) Reason for detainment or internment. The reason for which a
serviceperson was detained or interned is immaterial in determining POW
status, except that a serviceperson who is detained or interned by a
foreign government for an alleged violation of its laws is not entitled
to be considered a former POW on the basis of that period of detention
or internment, unless the charges are a sham intended to legitimize the
period of detention or internment.
(3) Central Office approval. The Director of the Compensation and
Pension Service, VA Central Office, shall approve all VA regional office
determinations establishing or denying POW status, with the exception of
those service department determinations accepted under paragraph (y)(1)
of this section.
(4) In line of duty. The Department of Veterans Affairs shall
consider that a serviceperson was forcibly detained or interned in line
of duty unless the evidence of record discloses that forcible detainment
or internment was the proximate result of the serviceperson's own
willful misconduct.
(5) Hostile force. The term hostile force means any entity other
than an enemy or foreign government or the agents of either whose
actions are taken to further or enhance anti-American military,
political or economic objectives or views, or to attempt to embarrass
the United States.
(Authority: 38 U.S.C. 101(32))
(z) Nursing home means
(1) Any extended care facility which is licensed by a State to
provide skilled or intermediate-level nursing care,
(2) A nursing home care unit in a State veterans' home which is
approved for payment under 38 U.S.C. 1742, or
(3) A Department of Veterans Affairs Nursing Home Care Unit.
(aa) Fraud:
(1) As used in 38 U.S.C. 103 and implementing regulations, fraud
means an intentional misrepresentation of fact, or the intentional
failure to disclose pertinent facts, for the purpose of obtaining, or
assisting an individual to obtain an annulment or divorce, with
knowledge that the misrepresentation or failure to disclose may result
in the erroneous granting of an annulment or divorce; and
(Authority: 38 U.S.C. 501)
[[Page 140]]
(2) As used in 38 U.S.C. 110 and 1159 and implementing regulations,
fraud means an intentional misrepresentation of fact, or the intentional
failure to disclose pertinent facts, for the purpose of obtaining or
retaining, or assisting an individual to obtain or retain, eligibility
for Department of Veterans Affairs benefits, with knowledge that the
misrepresentation or failure to disclose may result in the erroneous
award or retention of such benefits.
(Authority: 38 U.S.C. 501)
[26 FR 1563, Feb. 24, 1961]
Editorial Note: For Federal Register citations affecting Sec. 3.1,
see the List of Sections Affected in the Finding Aids section of this
volume.
Cross-References: Pension. See Sec. 3.3. Compensation. See Sec. 3.4.
Dependency and indemnity compensation. See Sec. 3.5. Preservation of
disability ratings. See Sec. 3.951. Service-connection. See Sec. 3.957.
Sec. 3.2 Periods of war.
This section sets forth the beginning and ending dates of each war
period beginning with the Indian wars. Note that the term period of war
in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542
means all of the war periods listed in this section except the Indian
wars and the Spanish-American War. See Sec. 3.3(a)(3) and (b)(4)(i).
(a) Indian wars. January 1, 1817, through December 31, 1898,
inclusive. Service must have been rendered with the United States
military forces against Indian tribes or nations.
(b) Spanish-American War. April 21, 1898, through July 4, 1902,
inclusive. If the veteran served with the United States military forces
engaged in hostilities in the Moro Province, the ending date is July 15,
1903. The Philippine Insurrection and the Boxer Rebellion are included.
(c) World War I. April 6, 1917, through November 11, 1918,
inclusive. If the veteran served with the United States military forces
in Russia, the ending date is April 1, 1920. Service after November 11,
1918 and before July 2, 1921 is considered World War I service if the
veteran served in the active military, naval, or air service after April
5, 1917 and before November 12, 1918.
(d) World War II. December 7, 1941, through December 31, 1946,
inclusive. If the veteran was in service on December 31, 1946,
continuous service before July 26, 1947, is considered World War II
service.
(e) Korean conflict. June 27, 1950, through January 31, 1955,
inclusive.
(f) Vietnam era. The period beginning on February 28, 1961, and
ending on May 7, 1975, inclusive, in the case of a veteran who served in
the Republic of Vietnam during that period. The period beginning on
August 5, 1964, and ending on May 7, 1975, inclusive, in all other
cases.
(Authority: 38 U.S.C. 101(29))
(g) Future dates. The period beginning on the date of any future
declaration of war by the Congress and ending on a date prescribed by
Presidential proclamation or concurrent resolution of the Congress.
(Authority: 38 U.S.C. 101)
(h) Mexican border period. May 9, 1916, through April 5, 1917, in
the case of a veteran who during such period served in Mexico, on the
borders thereof, or in the waters adjacent thereto.
(Authority: 38 U.S.C. 101(30))
(i) Persian Gulf War. August 2, 1990, through date to be prescribed
by Presidential proclamation or law.
(Authority: 38 U.S.C. 101(33))
[26 FR 1563, Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967;
36 FR 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26,
1975; 44 FR 45931, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR
35422, July 1, 1997]
Sec. 3.3 Pension.
(a) Pension for veterans--(1) Service pension; Spanish-American War.
A benefit payable monthly by the Department of Veterans Affairs because
of service in the Spanish-American War. Basic entitlement exists if a
veteran:
(i) Had 70 (or 90) days or more active service during the Spanish-
American War; or
(ii) Was discharged or released from such service for a disability
adjudged service connected without benefit of presumptive provisions of
law, or at
[[Page 141]]
the time of discharge had such a service-connected disability, shown by
official service records, which in medical judgment would have justified
a discharge for disability.
(Authority: 38 U.S.C. 1512)
(2) Section 306 pension. A benefit payable monthly by the Department
of Veterans Affairs because of nonservice-connected disability or age.
Basic entitlement exists if a veteran:
(i) Served 90 days or more in either the Mexican border period,
World War I, World War II, the Korean conflict, or the Vietnam era, or
served an aggregate of 90 days or more in separate periods of service
during the same or during different war periods, including service
during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L.
90-77, 81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or
(ii) Served continuously for a period of 90 consecutive days or more
and such period ended during the Mexican border period or World War I,
or began or ended during World War II, the Korean conflict or the
Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L. 88-664, 78 Stat.
1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub.
L. 92-198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204,
91 Stat. 1455); or
(iii) Was discharged or released from such wartime service, before
having served 90 days, for a disability adjudged service connected
without the benefit of presumptive provisions of law, or at the time of
discharge had such a service-connected disability, shown by official
service records, which in medical judgment would have justified a
discharge for disability; and
(iv) Is permanently and totally disabled (a) from nonservice-
connected disability not due to the veteran's own willful misconduct or
vicious habits, or (b) by reason of having attained the age of 65 years
or by reason of having become unemployable after age 65; and
(v)(a) Is in receipt of section 306 pension or (b) has an
application for pension pending on December 31, 1978, or (c) meets the
age or disability requirements for such pension on December 31, 1978,
and files a claim within 1 year of that date and also within 1 year
after meeting the age or disability requirements.
(vi) Meets the income and net worth requirements of 38 U.S.C. 1521
and 1522 as in effect on December 31, 1978, and all other provisions of
title 38, United States Code, in effect on December 31, 1978, applicable
to section 306 pension.
Note: The pension provisions of title 38 U.S.C., as in effect on
December 31, 1978, are available in any VA regional office.
(3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). A benefit
payable by the Department of Veterans Affairs to veterans of a period or
periods of war because of nonservice-connected disability or age. The
qualifying periods of war for this benefit are the Mexican border
period, World War I, World War II, the Korean conflict, the Vietnam era
and the Persian Gulf War. Payments are made monthly unless the amount of
the annual benefit is less than 4 percent of the maximum annual rate
payable to a veteran under 38 U.S.C. 1521(b), in which case payments may
be made less frequently than monthly. Basic entitlement exists if a
veteran:
(i) Served in the active military, naval or air service for 90 days
or more during a period of war (38 U.S.C. 1521(j)); or
(ii) Served in the active military, naval or air service during a
period of war and was discharged or released from such service for a
disability adjudged service-connected without presumptive provisions of
law, or at time of discharge had such a service-connected disability,
shown by official service records, which in medical judgment would have
justified a discharge for disability (38 U.S.C. 1521(j)); or
(iii) Served in the active military, naval or air service for a
period of 90 consecutive days or more and such period began or ended
during a period of war (38 U.S.C. 1521(j)); or
(iv) Served in the active military, naval or air service for an
aggregate of 90 days or more in two or more separate periods of service
during more than one period of war (38 U.S.C. 1521(j)); and
[[Page 142]]
(v) Is permanently and totally disabled from nonservice-connected
disability not due to the veteran's own willfull misconduct; and
(Authority: 38 U.S.C. 1502(a))
(vi) Meets the net worth requirements under Sec. 3.274 and does not
have an annual income in excess of the applicable maximum annual pension
rate specified in Sec. 3.23.
(b) Pension for survivors--(1) Indian war death pension. A monthly
benefit payable by the Department of Veterans Affairs to the surviving
spouse or child of a deceased veteran of an Indian war. Basic
entitlement exists if a veteran had qualifying service as specified in
38 U.S.C. 1511. Indian war death pension rates are set forth in 38
U.S.C. 1534 and 1535.
(2) Spanish-American War death pension. A monthly benefit payable by
the Department of Veterans Affairs to the surviving spouse or child of a
deceased veteran of the Spanish-American War, if the veteran:
(i) Had 90 days or more active service during the Spanish-American
War; or
(ii) Was discharged or released from such service for a disability
service-connected without benefit of presumptive provisions of law, or
at time of discharge had such a service-connected disability, as shown
by official service records, which in medical judgment would have
justified a discharge for disability.
(Authority: 38 U.S.C. 1536, 1537)
(3) Section 306 death pension. A monthly benefit payable by the
Department of Veterans Affairs to a surviving spouse or child because of
a veteran's nonservice-connected death. Basic entitlement exists if:
(i) The veteran (as defined in Sec. 3.1(d) and (d)(2)) had
qualifying service as specified in paragraph (a)(2)(i), (ii), or (iii)
of this section; or
(ii) The veteran was, at time of death, receiving or entitled to
receive compensation or retired pay for service-connected disability
based on wartime service; and
(iii) The surviving spouse or child (A) was in receipt of section
306 pension on December 31, 1978, or (B) had a claim for pension pending
on that date, or (C) filed a claim for pension after that date but
within 1 year after the veteran's death, if the veteran died before
January 1, 1979; and
(iv) The surviving spouse or child meets the income and net worth
requirements of 38 U.S.C. 1541, 1542 or 1543 as in effect on December
31, 1978, and all other provisions of title 38, United States Code in
effect on December 31, 1978, applicable to section 306 pension.
Note: The pension provisions of title 38, United States Code, as in
effect on December 31, 1978, are available in any VA regional office.)
(4) Improved death pension, Public Law 95-588. A benefit payable by
the Department of Veterans Affairs to a veteran's surviving spouse or
child because of the veteran's nonservice-connected death. Payments are
made monthly unless the amount of the annual benefit is less than 4
percent of the maximum annual rate payable to a veteran under 38 U.S.C.
1521(b), in which case payments may be made less frequently than
monthly. Basic entitlement exists if:
(i) The veteran (as defined in Sec. 3.1(d) and (d)(2)) had
qualifying service as specified in paragraph (a)(3)(i), (ii), (iii), or
(iv) of this section (38 U.S.C. 1541(a)); or
(ii) The veteran was, at time of death, receiving or entitled to
receive compensation or retired pay for a service-connected disability
based on service during a period of war. (The qualifying periods of war
are specified in paragraph (a)(3) of this section.) (38 U.S.C. 1541(a));
and
(iii) The surviving spouse or child meets the net worth requirements
of Sec. 3.274 and has an annual income not in excess of the applicable
maximum annual pension rate specified in Secs. 3.23 and 3.24.
(Authority: 38 U.S.C. 1541 and 1542).
[44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56
FR 22910, May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15,
1991]
Cross References: Section 306 pension. See Sec. 3.1(u). Improved
pension. See Sec. 3.1(w). Improved pension rates. See Sec. 3.23.
Improved pension rates; surviving children. See Sec. 3.24. Frequency of
payment of improved pension. See Sec. 3.30. Relationship of net worth to
pension entitlement. See Sec. 3.274.
[[Page 143]]
Sec. 3.4 Compensation.
(a) Compensation. This term means a monthly payment made by the
Department of Veterans Affairs to a veteran because of service-connected
disability, or to a surviving spouse, child, or parent of a veteran
because of the service-connected death of the veteran occurring before
January 1, 1957, or under the circumstances outlined in paragraph (c)(2)
of this section. If the veteran was discharged or released from service,
the discharge or release must have been under conditions other than
dishonorable.
(Authority: 38 U.S.C. 101(2), (13))
(b) Disability compensation. (1) Basic entitlement for a veteran
exists if the veteran is disabled as the result of a personal injury or
disease (including aggravation of a condition existing prior to service)
while in active service if the injury or the disease was incurred or
aggravated in line of duty.
(Authority: 38 U.S.C. 1110, 1131)
(2) An additional amount of compensation may be payable for a
spouse, child, and/or dependent parent where a veteran is entitled to
compensation based on disability evaluated as 30 per centum or more
disabling.
(Authority: 38 U.S.C. 1115)
(c) Death compensation. Basic entitlement exists for a surviving
spouse, child or children, and dependent parent or parents if:
(1) The veteran died before January 1, 1957; or
(2) The veteran died on or after May 1, 1957, and before January 1,
1972, if at the time of death a policy of United States Government Life
Insurance or National Service Life Insurance was in effect under waiver
of premiums under 38 U.S.C. 1924 unless the waiver was granted under the
first proviso of section 622(a) of the National Service Life Insurance
Act of 1940, and the veteran died before return to military jurisdiction
or within 120 days thereafter. (See Sec. 3.5(d) as to Public Health
Service.)
(Authority: 38 U.S.C. 1121, 1141)
[26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973; 39
FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979]
Sec. 3.5 Dependency and indemnity compensation.
(a) Dependency and indemnity compensation. This term means a monthly
payment made by the Department of Veterans Affairs to a surviving
spouse, child, or parent:
(1) Because of a service-connected death occurring after December
31, 1956, or
(2) Pursuant to the election of a surviving spouse, child, or
parent, in the case of such a death occurring before January 1, 1957.
(Authority: 38 U.S.C. 101 (14))
(b) Entitlement. Basic entitlement for a surviving spouse, child or
children, and parent or parents of a veteran exists, if:
(1) Death occurred on or after January 1, 1957, except in the
situation specified in Sec. 3.4(c)(2); or
(2) Death occurred prior to January 1, 1957, and the claimant was
receiving or eligible to receive death compensation on December 31, 1956
(or, as to a parent, would have been eligible except for income), under
laws in effect on that date or who subsequently becomes eligible by
reason of a death which occurred prior to January 1, 1957; or
(3) Death occurred on or after May 1, 1957, and before January 1,
1972, and the claimant had been ineligible to receive dependency and
indemnity compensation because of the exception in subparagraph (1) of
this paragraph. In such case dependency and indemnity compensation is
payable upon election. (38 U.S.C. 410, 416, 417, Public Law 92-197, 85
Stat. 660)
(c) Exclusiveness of remedy. No person eligible for dependency and
indemnity compensation by reason of a death occurring on or after
January 1, 1957, shall be eligible by reason of such death for death
pension or compensation under any other law administered by the
Department of Veterans Affairs, except that, effective November 2, 1994,
a surviving spouse who is receiving dependency and indemnity
compensation may elect to receive death pension instead of such
compensation.
(Authority: 38 U.S.C. 1317)
(d) Group life insurance. No dependency and indemnity compensation
or
[[Page 144]]
death compensation shall be paid to any surviving spouse, child or
parent based on the death of a commissioned officer of the Public Health
Service, the Coast and Geodetic Survey, the Environmental Science
Services Administration, or the National Oceanic and Atmospheric
Administration occuring on or after May 1, 1957, if any amounts are
payable under the Federal Employees' Group Life Insurance Act of 1954
(Pub. L. 598, 83d Cong., as amended) based on the same death.
(Authority: Sec. 501(c)(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as
amended by Sec. 13(u), Pub. L. 85-857; (72 Stat. 1266); Sec. 5, Pub. L.
91-621 (84 Stat. 1863))
(e) Surviving spouses' rate. (1) When death occurred on or after
January 1, 1993, the monthly rate of dependency and indemnity
compensation for a surviving spouse shall be the amount set forth in 38
U.S.C. 1311(a)(1). This rate shall be increased by the amount set forth
in 38 U.S.C. 1311(a)(2) in the case of the death of a veteran who at the
time of death was in receipt of or was entitled to receive (or but for
the receipt of retired pay or retirement pay was entitled to receive)
compensation for a service-connected disability that was evaluated as
totally disabling for a continuous period of at least eight years
immediately preceding death. In determining the eight year period, only
periods during which the veteran was married to the surviving spouse
shall be considered. The resulting rate is subject to increase as
provided in paragraphs (e) (3) and (4) of this section.
(2) The monthly rate of dependency and indemnity compensation for a
surviving spouse when the death of the veteran occurred prior to January
1, 1993, is based on the ``pay grade'' of the veteran, unless the
formula provided in paragraph (e)(1) of this section results in a
greater monetary benefit. The Secretary of the concerned service
department will certify the ``pay grade'' of the veteran and the
certification will be binding on the Department of Veterans Affairs. The
resulting rate is subject to increase as provided in paragraphs (e) (3)
and (4) of this section.
(Authority: 38 U.S.C. 1311(a) and 1321)
(3) If there is a surviving spouse with one or more children under
the age of 18 (including a child not in the surviving spouse's actual or
constructive custody and a child who is in active military, air, or
naval service), the total amount payable shall be increased by the
amount set forth in 38 U.S.C. 1311(b) for each child.
(4) If the surviving spouse is determined to be in need of regular
aid and attendance under the criteria in Sec. 3.352 or is a patient in a
nursing home, the total amount payable shall be increased by the amount
set forth in 38 U.S.C. 1311(c). If the surviving spouse does not qualify
for the regular aid and attendance allowance but is housebound under the
criteria in Sec. 3.351(f), the total amount payable shall be increased
by the amount set forth in 38 U.S.C. 1311(d).
[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37
FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr.
17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR
18355, Apr. 11, 1995]
Sec. 3.6 Duty periods.
(a) Active military, naval, and air service. This includes active
duty, any period of active duty for training during which the individual
concerned was disabled or died from a disease or injury incurred or
aggravated in line of duty, and any period of inactive duty training
during which the individual concerned was disabled or died from an
injury incurred or aggravated in line of duty.
(b) Active duty. This means:
(1) Full-time duty in the Armed Forces, other than active duty for
training;
(2) Full-time duty (other than for training purposes) as a
commissioned officer of the Regular or Reserve Corps of the Public
Health Service:
(i) On or after July 29, 1945, or
(ii) Before that date under circumstances affording entitlement to
full military benefits, or
(iii) At any time, for the purposes of dependency and indemnity
compensation.
(3) Full-time duty as a commissioned officer of the Coast and
Geodetic Survey or of its successor agencies, the
[[Page 145]]
Environmental Science Services Administration and the National Oceanic
and Atmospheric Administration:
(i) On or after July 29, 1945, or
(ii) Before that date:
(a) While on transfer to one of the Armed Forces, or
(b) While, in time of war or national emergency declared by the
President, assigned to duty on a project for one of the Armed Forces in
an area determined by the Secretary of Defense to be of immediate
military hazard, or
(c) In the Philippine Islands on December 7, 1941, and continuously
in such islands thereafter, or
(iii) At any time, for the purposes of dependency and indemnity
compensation.
(4) Service at any time as a cadet at the United States Military,
Air Force, or Coast Guard Academy, or as a midshipman at the United
States Naval Academy;
(5) Attendance at the preparatory schools of the United States Air
Force Academy, the United States Military Academy, or the United States
Naval Academy for enlisted active-duty members who are reassigned to a
preparatory school without a release from active duty, and for other
individuals who have a commitment to active duty in the Armed Forces
that would be binding upon disenrollment from the preparatory school;
(6) Authorized travel to or from such duty or service; and
(7) A person discharged or released from a period of active duty,
shall be deemed to have continued on active duty during the period of
time immediately following the date of such discharge or release from
such duty determined by the Secretary concerned to have been required
for him or her to proceed to his or her home by the most direct route,
and, in all instances, until midnight of the date of such discharge or
release.
(Authority: 38 U.S.C. 106(c))
(c) Active duty for training. (1) Full-time duty in the Armed Forces
performed by Reserves for training purposes;
(2) Full-time duty for training purposes performed as a commissioned
officer of the Reserve Corps of the Public Health Service:
(i) On or after July 29, 1945, or
(ii) Before that date under circumstances affording entitlement to
full military benefits, or
(iii) At any time, for the purposes of dependency and indemnity
compensation:
(3) Full-time duty performed by members of the National Guard of any
State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior
corresponding provisions of law or full-time duty by such members while
participating in the reenactment of the Battle of First Manassas in July
1961;
(4) Duty performed by a member of a Senior Reserve Officers'
Training Corps program when ordered to such duty for the purpose of
training or a practice cruise under chapter 103 of title 10 U.S.C.
(i) The requirements of this paragraph are effective--
(A) On or after October 1, 1982, with respect to deaths and
disabilities resulting from diseases or injuries incurred or aggravated
after September 30, 1982, and
(B) October 1, 1983, with respect to deaths and disabilities
resulting from diseases or injuries incurred or aggravated before
October 1, 1982.
(ii) Effective on or after October 1, 1988, such duty must be
prerequisite to the member being commissioned and must be for a period
of at least four continuous weeks.
(Authority: 38 U.S.C. 101(22)(D) as amended by Pub. L. 100-456)
(5) Attendance at the preparatory schools of the United States Air
Force Academy, the United States Military Academy, or the United States
Naval Academy by an individual who enters the preparatory school
directly from the Reserves, National Guard or civilian life, unless the
individual has a commitment to service on active duty which would be
binding upon disenrollment from the preparatory school.
(6) Authorized travel to or from such duty.
(Authority: 38 U.S.C. 101(22))
The term does not include duty performed as a temporary member of the
Coast Guard Reserve.
[[Page 146]]
(d) Inactive duty training. This means: (1) Duty (other than full-
time duty) prescribed for Reserves (including commissioned officers of
the Reserve Corps of the Public Health Service) by the Secretary
concerned under 37 U.S.C. 206 or any other provision of law;
(2) Special additional duties authorized for Reserves (including
commissioned officers of the Reserve Corps of the Public Health Service)
by an authority designated by the Secretary concerned and performed by
them on a voluntary basis in connection with the prescribed training or
maintenance activities of the units to which they are assigned; and
(3) Training (other than active duty for training) by a member of,
or applicant for membership (as defined in 5 U.S.C. 8140(g)) in, the
Senior Reserve Officers' Training Corps prescribed under chapter 103 of
title 10 U.S.C.
(4) Duty (other than full-time duty) performed by a member of the
National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505,
or the prior corresponding provisions of law. The term inactive duty
training does not include:
(i) Work or study performed in connection with correspondence
courses,
(ii) Attendance at an educational institution in an inactive status,
or
(iii) Duty performed as a temporary member of the Coast Guard
Reserve.
(Authority: 38 U.S.C. 101(23))
(e) Travel status--training duty (disability or death from injury).
Any individual:
(1) Who, when authorized or required by competent authority, assumes
an obligation to perform active duty for training or inactive duty
training; and
(2) Who is disabled or dies from an injury incurred while proceeding
directly to or returning directly from such active duty for training or
inactive duty training shall be deemed to have been on active duty for
training or inactive duty training, as the case may be. The Department
of Veterans Affairs will determine whether such individual was so
authorized or required to perform such duty, and whether the individual
was disabled or died from injury so incurred. In making such
determinations, there shall be taken into consideration the hour on
which the individual began to proceed or return; the hour on which the
individual was scheduled to arrive for, or on which the individual
ceased to perform, such duty; the method of travel performed; the
itinerary; the manner in which the travel was performed; and the
immediate cause of disability or death. Whenever any claim is filed
alleging that the claimant is entitled to benefits by reason of this
paragraph, the burden of proof shall be on the claimant.
(Authority: 38 U.S.C. 106 (d))
[26 FR 1564, Feb. 24, 1961, as amended at 26 FR 6767, July 28, 1961; 27
FR 4023, Apr. 27, 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20,
1971; 41 FR 26881, June 29, 1976; 49 FR 47003, Nov. 30, 1984; 54 FR
51200, Dec. 13, 1989; 55 FR 23931, June 13, 1990; 60 FR 57179, Nov. 14,
1995; 61 FR 11731, Mar. 22, 1996]
Sec. 3.7 Persons included.
The following are included:
(a) Aerial transportation of mail (Pub. L. 140, 73d Congress).
Persons who were injured or died while serving under conditions set
forth in Pub. L. 140, 73d Congress.
(b) Aliens. Effective July 28, 1959, a veteran discharged for
alienage during a period of hostilities unless evidence affirmatively
shows he or she was discharged at his or her own request. A veteran who
was discharged for alienage after a period of hostilities and whose
service was honest and faithful is not barred from benefits if he or she
is otherwise entitled. A discharge changed prior to January 7, 1957, to
honorable by a board established under authority of section 301, Pub. L.
346, 78th Congress, as amended, or section 207, Pub. L. 601, 79th
Congress, as amended (now 10 U.S.C. 1552 and 1553), will be considered
as evidence that the discharge was not at the alien's request. (See
Sec. 3.12.)
(Authority: 38 U.S.C. 5303(c))
(c) Army field clerks. Included as enlisted men.
(d) Army Nurse Corps, Navy Nurse Corps, and female dietetic and
physical therapy personnel. (1) Army and Navy nurses (female) on active
service under order of the service department.
(2) Dietetic and physical therapy (female) personnel, excluding
students
[[Page 147]]
and apprentices, appointed with relative rank on or after December 22,
1942, or commissioned on or after June 22, 1944.
(e) Aviation camps. Students who were enlisted men during World War
I.
(f) Cadets and midshipmen. See Sec. 3.6(b)(4).
(g) Coast and Geodetic Survey, and its successor agencies, the
Environmental Science Services Administration and the National Oceanic
and Atmospheric Administration. See Sec. 3.6(b)(3).
(h) Coast Guard. Active service in Coast Guard on or after January
29, 1915, while under jurisdiction of the Treasury Department, Navy
Department, or the Department of Transportation. (See Sec. 3.6 (c) and
(d) as to temporary members of the Coast Guard Reserves.)
(i) Contract surgeons. For compensation and dependency and indemnity
compensation, if the disability or death was the result of disease or
injury contracted in line of duty during a war period while actually
performing the duties of assistant surgeon or acting assistant surgeon
with any military force in the field, or in transit or in hospital.
(j) Field clerks, Quartermaster Corps. Included as enlisted men.
(k) Lighthouse service personnel. Transferred to the service and
jurisdiction of War or Navy Departments by Executive order under the Act
of August 29, 1916. Effective July 1, 1939, service was consolidated
with the Coast Guard.
(l) Male nurses. Persons who were enlisted men of Medical Corps.
(m) National Guard. Members of the National Guard of the United
States and Air National Guard of the United States are included as
Reserves. See Sec. 3.6 (c) and (d) as to training duty performed by
members of a State National Guard and paragraph (o) of this section as
to disability suffered after being called into Federal service and
before enrollment.
(n) Persons heretofore having a pensionable or compensable status.
(Authority: 38 U.S.C. 1152, 1504)
(o) Persons ordered to service. (1) Any person who has:
(i) Applied for enlistment or enrollment in the active military,
naval, or air service and who is provisionally accepted and directed, or
ordered, to report to a place for final acceptance into the service, or
(ii) Been selected or drafted for such service, and has reported
according to a call from the person's local draft board and before final
rejection, or
(iii) Been called into Federal service as a member of the National
Guard, but has not been enrolled for Federal service, and
(iv) Suffered injury or disease in line of duty while going to, or
coming from, or at such place for final acceptance or entry upon active
duty,
is considered to have been on active duty and therefore to have incurred
such disability in active service.
(2) The injury or disease must be due to some factor relating to
compliance with proper orders. Draftees and selectees are included when
reporting for preinduction examination or for final induction on active
duty. Such persons are not included for injury or disease suffered
during the period of inactive duty, or period of waiting, after a final
physical examination and prior to beginning the trip to report for
induction. Members of the National Guard are included when reporting to
a designated rendezvous.
(p) Philippine Scouts and others. See Sec. 3.8.
(q) Public Health Service. See Sec. 3.6 (a) and (b).
(r) Reserves. See Sec. 3.6 (a), (b), and (c).
(s) Revenue Cutter Service. While serving under direction of
Secretary of the Navy in cooperation with the Navy.
(t) Training camps. Members of training camps authorized by section
54 of the National Defense Act, except members of Student Army Training
Corps Camps at the Presidio of San Francisco, Plattsburg, New York, Fort
Sheridan, Illinois, Howard University, Washington, D.C., Camp Perry,
Ohio, and Camp Hancock, Georgia, from July 18, 1918, to September 16,
1918.
(u) Women's Army Corps (WAC). Service on or after July 1, 1943.
(v) Women's Reserve of Navy, Marine Corps, and Coast Guard. Same
benefits as members of the Officers Reserve Corps or enlisted men of the
United States Navy, Marine Corps or Coast Guard.
[[Page 148]]
(w) Russian Railway Service Corps. Service during World War I as
certified by the Secretary of the Army.
(x) Active military service certified as such under section 401 of
Pub. L. 95-202. Such service if certified by the Secretary of Defense as
active military service and if a discharge under honorable conditions is
issued by the Secretary. The effective dates for an award based upon
such service shall be as provided by Sec. 3.400(z) and 38 U.S.C. 5110,
except that in no event shall such an award be made effective earlier
than November 23, 1977. Service in the following groups has been
certified as active military service.
(1) Women's Air Forces Service Pilots (WASP).
(2) Signal Corps Female Telephone Operators Unit of World War I.
(3) Engineer Field Clerks.
(4) Women's Army Auxiliary Corps (WAAC).
(5) Quartermaster Corps Female Clerical Employees serving with the
AEF (American Expeditionary Forces) in World War I.
(6) Civilian Employees of Pacific Naval Air Bases Who Actively
Participated in Defense of Wake Island During World War II.
(7) Reconstruction Aides and Dietitians in World War I.
(8) Male Civilian Ferry Pilots.
(9) Wake Island Defenders from Guam.
(10) Civilian Personnel Assigned to the Secret Intelligence Element
of the OSS.
(11) Guam Combat Patrol.
(12) Quartermaster Corps Keswick Crew on Corregidor (WWII).
(13) U.S. Civilian Volunteers Who Actively Participated in the
Defense of Bataan.
(14) United States Merchant Seamen Who Served on Blockships in
Support of Operation Mulberry.
(15) American Merchant Marine in Oceangoing Service during the
Period of Armed Conflict, December 7, 1941, to August 15, 1945.
(16) Civilian Navy IFF Technicians Who Served in the Combat Areas of
the Pacific during World War II (December 7, 1941 to August 15, 1945).
As used in the official name of this group, the acronym IFF stands for
Identification Friend or Foe.
(17) U.S. Civilians of the American Field Service (AFS) Who Served
Overseas Operationally in World War I during the Period August 31, 1917
to January 1, 1918.
(18) U.S. Civilians of the American Field Service (AFS) Who Served
Overseas Under U.S. Armies and U.S. Army Groups in World War II during
the Period December 7, 1941 through May 8, 1945.
(19) U.S. Civilian Employees of American Airlines Who Served
Overseas as a Result of American Airlines' Contract with the Air
Transport Command During the Period December 14, 1941 through August 14,
1945.
(20) Civilian Crewmen of United States Coast and Geodetic Survey
Vessels Who Performed Their Service in Areas of Immediate Military
Hazard While Conducting Cooperative Operations with and for the United
States Armed Forces Within a Time Frame of December 7, 1941, to August
15, 1945.
(21) Honorably Discharged Members of the American Volunteer Group
(Flying Tigers) Who Served During the Period December 7, 1941 to July
18, 1942.
(22) U.S. Civilian Flight Crew and Aviation Ground Support Employees
of United Air Lines (UAL), Who Served Overseas as a Result of UAL's
Contract With the Air Transport Command During the Period December 14,
1941, through August 14, 1945.
(23) U.S. Civilian Flight Crew and Aviation Ground Support Employees
of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as
a Result of TWA's Contract With the Air Transport Command During the
Period December 14, 1941, through August 14, 1945.
(24) U.S. Civilian Flight Crew and Aviation Ground Support Employees
of Consolidated Vultree Aircraft Corporation (Consairway Division) Who
Served Overseas as a Result of a Contract With the Air Transport Command
During the Period December 14, 1941, through August 14, 1945.
(25) U.S. Civilian Flight Crew and Aviation Ground Support Employees
of Pan American World Airways and Its Subsidiaries and Affiliates, Who
Served Overseas as a Result of Pan American's
[[Page 149]]
Contract With the Air Transport Command and Naval Air Transport Service
During the Period December 14, 1941 through August 14, 1945.
(26) Honorably Discharged Members of the American Volunteer Guard,
Eritrea Service Command During the Period June 21, 1942 to March 31,
1943.
(27) U.S. Civilian Flight Crew and Aviation Ground Support Employees
of Northwest Airlines, Who Served Overseas as a Result of Northwest
Airline's Contract with the Air Transport Command during the Period
December 14, 1941 through August 14, 1945.
(28) U.S. Civilian Female Employees of the U.S. Army Nurse Corps
While Serving in the Defense of Bataan and Corregidor During the Period
January 2, 1942 to February 3, 1945.
(Authority: Sec. 401, Pub. L. 95-202, 91 Stat. 1450)
[26 FR 1565, Feb. 24, 1961]
Editorial Note: For Federal Register citations affecting Sec. 3.7,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Cross Reference: Office of Workers' Compensation Programs. See
Sec. 3.708.
Sec. 3.8 Philippine and Insular Forces.
(a) Regular Philippine Scouts. Service in the Philippine Scouts
(except that described in paragraph (b) of this section), the Insular
Force of the Navy, Samoan Native Guard, and Samoan Native Band of the
Navy is included for pension, compensation, dependency and indemnity
compensation, and burial allowance. Benefits are payable in dollars.
(b) Other Philippine Scouts. Service of persons enlisted under
section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is
included for compensation and dependency and indemnity compensation.
Such benefits are payable at a rate of $0.50 for each dollar authorized
under the law. All enlistments and reenlistments of Philippine Scouts in
the Regular Army between October 6, 1945, and June 30, 1947, inclusive
were made under the provisions of Pub. L. 190 as it constituted the sole
authority for such enlistments during that period. This paragraph does
not apply to officers who were commissioned in connection with the
administration of Pub. L. 190.
(Authority: 38 U.S.C. 107)
(c) Commonwealth Army of the Philippines. (1) Service is included,
for compensation, dependency and indemnity compensation, and burial
allowance, from and after the dates and hours, respectively, when they
were called into service of the Armed Forces of the United States by
orders issued from time to time by the General Officer, U.S. Army,
pursuant to the Military Order of the President of the United States
dated July 26, 1941. Service as a guerrilla under the circumstances
outlined in paragraph (d) of this section is also included. Service on
or after July 1, 1946, is not included. Benefits are payable at a rate
of $0.50 for each dollar authorized under the law.
(Authority: 38 U.S.C. 107)
(2) Unless the record shows examination at time of entrance into the
Armed Forces of the United States, such persons are not entitled to the
presumption of soundness. This also applies upon reentering the Armed
Forces after a period of inactive service.
(d) Guerrilla service. (1) Persons who served as guerrillas under a
commissioned officer of the United States Army, Navy or Marine Corps, or
under a commissioned officer of the Commonwealth Army recognized by and
cooperating with the United States Forces are included. (See paragraph
(c) of this section.) Service as a guerrilla by a member of the
Philippine Scouts or the Armed Forces of the United States is considered
as service in his or her regular status. (See paragraph (a) of this
section.)
(2) The following certifications by the service departments will be
accepted as establishing guerrilla service:
(i) Recognized guerrilla service;
(ii) Unrecognized guerrilla service under a recognized commissioned
officer only if the person was a former member of the United States
Armed Forces (including the Philippine Scouts), or the Commonwealth
Army. This excludes civilians.
[[Page 150]]
A certification of Anti-Japanese Activity will not be accepted as
establishing guerrilla service.
(e) Combined service. Where a veteran who had Commonwealth Army or
guerrilla service and also had other service, wartime or peacetime, in
the Armed Forces of the United States, has disabilities which are
compensable separately on a dollar and a $0.50 for each dollar
authorized basis, and the disabilities are combined under the authority
contained in 38 U.S.C. 1157, the evaluation for which dollars are
payable will be first considered and the difference between this
evaluation and the combined evaluation will be the basis for computing
the amount payable at the rate of $0.50 for each dollar authorized.
[26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966; 60
FR 18355, Apr. 11, 1995]
Cross Reference: Computation of service. See Sec. 3.15.
Sec. 3.9 Philippine service.
(a) For a Regular Philippine Scout or a member of one of the regular
components of the Philippine Commonwealth Army while serving with Armed
Forces of United States, the period of active service will be from the
date certified by the Armed Forces as the date of enlistment or date of
report for active duty whichever is later to date of release from active
duty, discharge, death, or in the case of a member of the Philippine
Commonwealth Army June 30, 1946, whichever was earlier. Release from
active duty includes:
(1) Leaving one's organization in anticipation of or due to the
capitulation.
(2) Escape from prisoner-of-war status.
(3) Parole by the Japanese.
(4) Beginning of missing-in-action status, except where factually
shown at that time he was with his or her unit or death is presumed to
have occurred while carried in such status: Provided, however, That
where there is credible evidence that he was alive after commencement of
his or her missing-in-action status, the presumption of death will not
apply for Department of Veterans Affairs purposes.
(5) Capitulation on May 6, 1942, except that periods of recognized
guerrilla service or unrecognized guerrilla service under a recognized
commissioned officer or periods of service in units which continued
organized resistance against Japanese prior to formal capitulation will
be considered return to active duty for period of such service.
(b) Active service of a Regular Philippine Scout or a member of the
Philippine Commonwealth Army serving with the Armed Forces of the United
States will include a prisoner-of-war status immediately following a
period of active duty, or a period of recognized guerrilla service or
unrecognized guerrilla service under a recognized commissioned officer.
In those cases where following release from active duty as set forth in
paragraph (a) of this section, the veteran is factually found by the
Department of Veterans Affairs to have been injured or killed by the
Japanese because of anti-Japanese activities or his or her former
service in the Armed Forces of the United States, such injury or death
may be held to have been incurred in active service for Department of
Veterans Affairs purposes. Determination shall be based on all available
evidence, including service department reports, and consideration shall
be given to the character and length of the veteran's former active
service in the Armed Forces of the United States.
(c) A prisoner-of-war status based upon arrest during general
zonification will not be sufficient of itself to bring a case within the
definition of return to military control.
(d) The active service of members of the irregular forces guerrilla
will be the period certified by the service department.
[26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961]
Sec. 3.10 [Reserved]
Sec. 3.11 Homicide.
Any person who has intentionally and wrongfully caused the death of
another person is not entitled to pension, compensation, or dependency
and indemnity compensation or increased pension, compensation, or
dependency and indemnity compensation by reason of such death. For the
purpose of this
[[Page 151]]
section the term dependency and indemnity compensation includes benefits
at dependency and indemnity compensation rates paid under 38 U.S.C.
1318.
[44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989]
Sec. 3.12 Character of discharge.
(a) If the former service member did not die in service, pension,
compensation, or dependency and indemnity compensation is not payable
unless the period of service on which the claim is based was terminated
by discharge or release under conditions other than dishonorable. (38
U.S.C. 101(2)). A discharge under honorable conditions is binding on the
Department of Veterans Affairs as to character of discharge.
(b) A discharge or release from service under one of the conditions
specified in this section is a bar to the payment of benefits unless it
is found that the person was insane at the time of committing the
offense causing such discharge or release or unless otherwise
specifically provided (38 U.S.C. 5303(b)).
(c) Benefits are not payable where the former service member was
discharged or released under one of the following conditions:
(1) As a conscientious objector who refused to perform military
duty, wear the uniform, or comply with lawful order of competent
military authorities.
(2) By reason of the sentence of a general court-martial.
(3) Resignation by an officer for the good of the service.
(4) As a deserter.
(5) As an alien during a period of hostilities, where it is
affirmatively shown that the former service member requested his or her
release. See Sec. 3.7(b).
(6) By reason of a discharge under other than honorable conditions
issued as a result of an absence without official leave (AWOL) for a
continuous period of at least 180 days. This bar to benefit entitlement
does not apply if there are compelling circumstances to warrant the
prolonged unauthorized absence. This bar applies to any person awarded
an honorable or general discharge prior to October 8, 1977, under one of
the programs listed in paragraph (h) of this section, and to any person
who prior to October 8, 1977, had not otherwise established basic
eligibility to receive Department of Veterans Affairs benefits. The term
established basic eligibility to receive Department of Veterans Affairs
benefits means either a Department of Veterans Affairs determination
that an other than honorable discharge was issued under conditions other
than dishonorable, or an upgraded honorable or general discharge issued
prior to October 8, 1977, under criteria other than those prescribed by
one of the programs listed in paragraph (h) of this section. However, if
a person was discharged or released by reason of the sentence of a
general court-martial, only a finding of insanity (paragraph (b) of this
section) or a decision of a board of correction of records established
under 10 U.S.C. 1552 can estalish basic eligibility to receive
Department of Veterans Affairs benefits. The following factors will be
considered in determining whether there are compelling circumstances to
warrant the prolonged unauthorized absence.
(i) Length and character of service exclusive of the period of
prolonged AWOL. Service exclusive of the period of prolonged AWOL should
generally be of such quality and length that it can be characterized as
honest, faithful and meritorious and of benefit to the Nation.
(ii) Reasons for going AWOL. Reasons which are entitled to be given
consideration when offered by the claimant include family emergencies or
obligations, or similar types of obligations or duties owed to third
parties. The reasons for going AWOL should be evaluated in terms of the
person's age, cultural background, educational level and judgmental
maturity. Consideration should be given to how the situation appeared to
the person himself or herself, and not how the adjudicator might have
reacted. Hardship or suffering incurred during overseas service, or as a
result of combat wounds of other service-incurred or aggravated
disability, is to be carefully and sympathetically considered in
evaluating the person's state of mind at the time the prolonged AWOL
period began.
[[Page 152]]
(iii) A valid legal defense exists for the absence which would have
precluded a conviction for AWOL. Compelling circumstances could occur as
a matter of law if the absence could not validly be charged as, or lead
to a conviction of, an offense under the Uniform Code of Military
Justice. For purposes of this paragraph the defense must go directly to
the substantive issue of absence rather than to procedures,
technicalities or formalities.
(d) A discharge or release because of one of the offenses specified
in this paragraph is considered to have been issued under dishonorable
conditions.
(1) Acceptance of an undesirable discharge to escape trial by
general court-martial.
(2) Mutiny or spying.
(3) An offense involving moral turpitude. This includes, generally,
conviction of a felony.
(4) Willful and persistent misconduct. This includes a discharge
under other than honorable conditions, if it is determined that it was
issued because of willful and persistent misconduct. A discharge because
of a minor offense will not, however, be considered willful and
persistent misconduct if service was otherwise honest, faithful and
meritorious.
(5) Homosexual acts involving aggravating circumstances or other
factors affecting the performance of duty. Examples of homosexual acts
involving aggravating circumstances or other factors affecting the
performance of duty include child molestation, homosexual prostitution,
homosexual acts or conduct accompanied by assault or coercion, and
homosexual acts or conduct taking place between service members of
disparate rank, grade, or status when a service member has taken
advantage of his or her superior rank, grade, or status.
(e) An honorable discharge or discharge under honorable conditions
issued through a board for correction of records established under
authority of 10 U.S.C. 1552 is final and conclusive on the Department of
Veterans Affairs. The action of the board sets aside any prior bar to
benefits imposed under paragraph (c) or (d) of this section.
(f) An honorable or general discharge issued prior to October 8,
1977, under authority other than that listed in paragraphs (h) (1), (2)
and (3) of this section by a discharge review board established under 10
U.S.C. 1553 set aside any bar to benefits imposed under paragraph (c) or
(d) of this section except the bar contained in paragraph (c)(2) of this
section.
(g) An honorable or general discharge issued on or after October 8,
1977, by a discharge review board established under 10 U.S.C. 1553, sets
aside a bar to benefits imposed under paragraph (d), but not paragraph
(c), of this section provided that:
(1) The discharge is upgraded as a result of an individual case
review;
(2) The discharge is upgraded under uniform published standards and
procedures that generally apply to all persons administratively
discharged or released from active military, naval or air service under
conditions other than honorable; and
(3) Such standards are consistent with historical standards for
determining honorable service and do not contain any provision for
automatically granting or denying an upgraded discharge.
(h) Unless a discharge review board established under 10 U.S.C. 1553
determines on an individual case basis that the discharge would be
upgraded under uniform standards meeting the requirements set forth in
paragraph (g) of this section, an honorable or general discharge awarded
under one of the following programs does not remove any bar to benefits
imposed under this section:
(1) The President's directive of January 19, 1977, implementing
Presidential Proclamation 4313 of September 16, 1974; or
(2) The Department of Defense's special discharge review program
effective April 5, 1977; or
(3) Any discharge review program implemented after April 5, 1977,
that does not apply to all persons administratively discharged or
released from active military service under other than honorable
conditions.
(Authority: 38 U.S.C. 5303 (e))
[[Page 153]]
(i) No overpayments shall be created as a result of payments made
after October 8, 1977, based on an upgraded honorable or general
discharge issued under one of the programs listed in paragraph (h) of
this section which would not be awarded under the standards set forth in
paragraph (g) of this section. Accounts in payment status on or after
October 8, 1977, shall be terminated the end of the month in which it is
determined that the original other than honorable discharge was not
issued under conditions other than dishonorable following notice from
the appropriate discharge review board that the discharge would not have
been upgraded under the standards set forth in paragraph (g) of this
section, or April 7, 1978, whichever is the earliest. Accounts in
suspense (either before or after October 8, 1977) shall be terminated on
the date of last payment or April 7, 1978, whichever is the earliest.
(j) No overpayment shall be created as a result of payments made
after October 8, 1977, in cases in which the bar contained in paragraph
(c)(6) of this section is for application. Accounts in payment status on
or after October 8, 1977, shall be terminated at the end of the month in
which it is determined that compelling circumstances do not exist, or
April 7, 1978, whichever is the earliest. Accounts in suspense (either
before or after October 8, 1977) shall be terminated on the date of last
payment, or April 7, 1978, whichever is the earliest.
(k) Uncharacterized separations. Where enlisted personnel are
administratively separated from service on the basis of proceedings
initiated on or after October 1, 1982, the separation may be classified
as one of the three categories of administrative separation that do not
require characterization of service by the military department
concerned. In such cases conditions of discharge will be determined by
the VA as follows:
(1) Entry level separation. Uncharacterized administrative
separations of this type shall be considered under conditions other than
dishonorable.
(2) Void enlistment or induction. Uncharacterized administrative
separations of this type shall be reviewed based on facts and
circumstances surrounding separation, with reference to the provisions
of Sec. 3.14 of this part, to determine whether separation was under
conditions other than dishonorable.
(3) Dropped from the rolls. Uncharacterized administrative
separations of this type shall be reviewed based on facts and
circumstances surrounding separation to determine whether separation was
under conditions other than dishonorable.
(Authority: 38 U.S.C. 501)
[28 FR 123, Jan. 4, 1963, as amended at 41 FR 12656, Mar. 26, 1976; 43
FR 15153, Apr. 11, 1978; 45 FR 2318, Jan. 11, 1980; 49 FR 44099, Nov. 2,
1984; 62 FR 14823, Mar. 28, 1997]
Cross References: Validity of enlistments. See Sec. 3.14. Revision
of decisions. See Sec. 3.105. Effective dates. See Sec. 3.400(g).
Minimum active-duty service requirement. See Sec. 3.12a.
Sec. 3.12a Minimum active-duty service requirement.
(a) Definitions. (1) The term minimum period of active duty means,
for the purposes of this section, the shorter of the following periods.
(i) Twenty-four months of continuous active duty. Non-duty periods
that are excludable in determining the Department of Veterans Affairs
benefit entitlement (e.g., see Sec. 3.15) are not considered as a break
in service for continuity purposes but are to be subtracted from total
time served.
(ii) The full period for which a person was called or ordered to
active duty.
(2) The term benefit includes a right or privilege but does not
include a refund of a participant's contributions under 38 U.S.C. Ch.
32.
(b) Effect on Department of Veterans Affairs benefits. Except as
provided in paragraph (d) of this section, a person listed in paragraph
(c) of this section who does not complete a minimum period of active
duty is not eligible for any benefit under title 38, United States Code
or under any law administered by the Department of Veterans Affairs
based on that period of active service.
(c) Persons included. Except as provided in paragraph (d) of this
section, the provisions of paragraph (b) of this section apply to the
following persons:
[[Page 154]]
(1) A person who originally enlists (enlisted person only) in a
regular component of the Armed Forces after September 7, 1980 (a person
who signed a delayed-entry contract with one of the service branches
prior to September 8, 1980, and under that contract was assigned to a
reserve component until entering on active duty after September 7, 1980,
shall be considered to have enlisted on the date the person entered on
active duty); and
(2) Any other person (officer as well as enlisted) who enters on
active duty after October 16, 1981 and who has not previously completed
a continuous period of active duty of at least 24 months or been
discharged or released from active duty under 10 U.S.C. 1171 (early
out).
(d) Exclusions. The provisions of paragraph (b) of this section are
not applicable to the following cases:
(1) To a person who is discharged or released under 10 U.S.C. 1171
or 1173 (early out or hardship discharge).
(2) To a person who is discharged or released from active duty for a
disability adjudged service connected without presumptive provisions of
law, or who at time of discharge had such a service-connected
disability, shown by official service records, which in medical judgment
would have justified a discharge for disability.
(3) To a person with a compensable service-connected disability.
(4) To the provision of a benefit for or in connection with a
service-connected disability, condition, or death.
(5) To benefits under chapter 19 of title 38, United States Code.
(e) Dependent or survivor benefits--(1) General. If a person is, by
reason of this section, barred from receiving any benefits under title
38, United States Code (or under any other law administered by the
Department of Veterans Affairs based on a period of active duty, the
person's dependents or survivors are also barred from receiving benefits
based on the same period of active duty.
(2) Exceptions. Paragraph (e)(1) of this section does not apply to
benefits under chapters 19 and 37 of title 38, United States Code. (38
U.S.C. 5303A)
[47 FR 24549, June 7, 1982]
Sec. 3.13 Discharge to change status.
(a) A discharge to accept appointment as a commissioned or warrant
officer, or to change from a Reserve or Regular commission to accept a
commission in the other component, or to reenlist is a conditional
discharge if it was issued during one of the following periods:
(1) World War I; prior to November 11, 1918. As to reenlistments,
this subparagraph applies only to Army and National Guard. No
involuntary extension or other restrictions existed on Navy enlistments.
(2) World War II, the Korean conflict or the Vietnam era; prior to
the date the person was eligible for discharge under the point or length
of service system, or under any other criteria in effect.
(3) Peacetime service; prior to the date the person was eligible for
an unconditional discharge.
(b) Except as provided in paragraph (c) of this section, the entire
period of service under the circumstances stated in paragraph (a) of
this section constitutes one period of service and entitlement will be
determined by the character of the final termination of such period of
active service except that, for death pension purposes, Sec. 3.3(b)(3)
and (4) is controlling as to basic entitlement when the conditions
prescribed therein are met.
(c) Despite the fact that no unconditional discharge may have been
issued, a person shall be considered to have been unconditionally
discharged or released from active military, naval or air service when
the following conditions are met:
(1) The person served in the active military, naval or air service
for the period of time the person was obligated to serve at the time of
entry into service;
(2) The person was not discharged or released from such service at
the time of completing that period of obligation due to an intervening
enlistment or reenlistment; and
(3) The person would have been eligible for a discharge or release
under conditions other than dishonorable at
[[Page 155]]
that time except for the intervening enlistment or reenlistment.
[26 FR 1566, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962; 32
FR 13224, Sept. 19, 1967; 43 FR 15154, Apr. 11, 1978; 46 FR 23926, Apr.
29, 1981]
Sec. 3.14 Validity of enlistments.
Service is valid unless the enlistment is voided by the service
department.
(a) Enlistment not prohibited by statute. Where an enlistment is
voided by the service department for reasons other than those stated in
paragraph (b) of this section, service is valid from the date of entry
upon active duty to the date of voidance by the service department.
Benefits may not be paid, however, unless the discharge is held to have
been under conditions other than dishonorable. Generally discharge for
concealment of a physical or mental defect except incompetency or
insanity which would have prevented enlistment will be held to be under
dishonorable conditions.
(b) Statutory prohibition. Where an enlistment is voided by the
service department because the person did not have legal capacity to
contract for a reason other than minority (as in the case of an insane
person) or because the enlistment was prohibited by statute (a deserter
or person convicted of a felony), benefits may not be paid based on that
service even though a disability was incurred during such service. An
undesirable discharge by reason of the fraudulent enlistment voids the
enlistment from the beginning.
(c) Misrepresentation of age. Active service which was terminated
because of concealment of minority or misrepresentation of age is
honorable if the veteran was released from service under conditions
other than dishonorable. Service is valid from the date of entry upon
active duty to the date of discharge.
(d) Honorable discharges. Determinations as to honorable service
will be made by the service departments and the finding shall be binding
on the Department of Veterans Affairs, but, in the case of an alien, the
effect of the discharge will be governed by Sec. 3.7(b).
[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962]
Sec. 3.15 Computation of service.
For nonservice-connected or service-connected benefits, active
service is countable exclusive of time spent on an industrial,
agricultural, or indefinite furlough, time lost on absence without leave
(without pay), under arrest (without acquittal), in desertion, while
undergoing sentence of court-martial or a period following release from
active duty under the circumstances outlined in Sec. 3.9. In claims
based on Spanish-American War service, leave authorized under General
Order No. 130, War Department, is included.
[40 FR 16064, Apr. 9, 1975]
Cross Reference: Duty periods. See Sec. 3.6(b)(6).
Sec. 3.16 Service pension.
In computing the 70 or 90 days required under Sec. 3.3(a) active
service which began before or extended beyond the war period will be
included if such service was continuous. Broken periods of service
during a war period may be added together to meet the requirement for
length of service.
[41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979]
Sec. 3.17 Disability and death pension; Mexican border period and later war periods.
In computing the 90 days' service required for pension entitlement
(see Sec. 3.3), there will be included active service which began before
and extended into the Mexican border period or ended during World War I,
or began or ended during World War II, the Korean conflict, the Vietnam
era or the Persian Gulf War, if such service was continuous. Service
during different war periods may be combined with service during any
other war period to meet the 90 days' service requirement.
(Authority: 38 U.S.C. 1521)
[37 FR 6676, Apr. 1, 1972, as amended at 44 FR 45932, Aug. 6, 1979; 56
FR 57986, Nov. 15, 1991]
Secs. 3.18--3.19 [Reserved]
Sec. 3.20 Surviving spouse's benefit for month of veteran's death.
(a) Where the veteran died on or after December 1, 1962, and before
October 1,
[[Page 156]]
1982, the rate of death pension or dependency and indemnity compensation
otherwise payable for the surviving spouse for the month in which the
death occurred shall be not less than the amount of pension or
compensation which would have been payable to or for the veteran for
that month but for his or her death.
(Authority: 38 U.S.C. 5310)
(b) Where the veteran dies on or after October 1, 1982, the
surviving spouse may be paid death pension or dependency and indemnity
compensation for the month in which the veteran died at a rate equal to
the amount of compensation or pension which would have been payable to
the veteran for that month had death not occurred, but only if such rate
is greater than the monthly rate of death pension or dependency and
indemnity compensation to which the surviving spouse is entitled.
Otherwise, no payment of death pension or dependency and indemnity
compensation may be made for the month in which the veteran died.
(Authority: 38 U.S.C. 5111(c))
(c)(1) Where a veteran receiving compensation or pension dies after
December 31, 1996, the surviving spouse, if not entitled to death
compensation, dependency and indemnity compensation, or death pension
for the month of death, shall be entitled to a benefit for that month in
an amount equal to the amount of compensation or pension the veteran
would have received for that month but for his or her death.
(2) A payment issued to a deceased veteran as compensation or
pension for the month in which death occurred shall be treated as
payable to that veteran's surviving spouse, if the surviving spouse is
not entitled to death compensation, dependency and indemnity
compensation or death pension for that month and, if negotiated or
deposited, shall be considered to be the benefit to which the surviving
spouse is entitled under paragraph (c)(1) of this section. However, if
such payment is in an amount less than the amount of the benefit under
paragraph (c)(1) of this section, the unpaid difference shall be treated
in the same manner as an accrued benefit under Sec. 3.1000 of this part.
(Authority: 38 U.S.C. 5310(b))
[48 FR 34471, July 29, 1983, as amended at 62 FR 35422, July 1, 1997]
Sec. 3.21 Monetary rates.
The rates of compensation, dependency and indemnity compensation for
surviving spouses and children, and section 306 and old-law disability
and death pension, are published in tabular form in appendix B of the
Veterans Benefits Administration Manual M21-1 and are to be given the
same force and effect as if published in the regulations (title 38, Code
of Federal Regulations). The maximum annual rates of improved pension
payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in Secs. 3.23
and 3.24. The monthly rates and annual income limitations applicable to
parents' dependency and indemnity compensation are set forth in
Sec. 3.25.
[44 FR 45932, Aug. 6, 1979]
Cross References: Section 306 pension. See Sec. 3.1(u). Old-law
pension. See Sec. 3.1(v). Improved pension. See Sec. 3.1(w).