cfr_sections
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304 rows where part_number = 3 and title_number = 38 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 38:38:1.0.1.1.4.1.57.1 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.1 Definitions. | VA | [26 FR 1563, Feb. 24, 1961] | (a) Armed Forces means the United States Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard, including their Reserve components. (b) Reserve component means the Army, Naval, Marine Corps, Air Force, Space 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, air, or space 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 survivors 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, air, or space service, as certified by the Secretary concerned. (See §§ 3.3(b)(3)(i) and 3.3(b)(4)(i)) (e) Veteran of any war means any veteran who served in the active military, naval, air, or space service during a period of war as set forth in § 3.2. (f) Period of war means the periods described in § 3.2. (g) Secretary concerned means: (1) The Secretary of the Army, with respect to matters concerning the Army; (2) The Secretary of the Navy, with respect to matters concerning the Navy or the Marine Corps; (3) The Secretary of the Air Force, with respect to matters concerning the Air Force or the Space Force; (4) The Secretary of Homeland Security, 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) D… | ||||
| 38:38:1.0.1.1.4.1.57.10 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.12 Benefit eligibility based on character of discharge. | VA | [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; 87 FR 26125, May 3, 2022; 89 FR 32372, Apr. 26, 2024] | (a) General rule. If the former service member did not die in service, then pension, compensation, or dependency and indemnity compensation is payable for claims based on a period of service that 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) Insanity exception. No bar to benefits under this section shall be applied if VA determines that the former service member was insane at the time he or she committed the offense(s) leading to the discharge or release under dishonorable conditions. (38 U.S.C. 5303(b)) Insanity is defined in § 3.354. (c) Statutory bars to benefits. 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 orders of competent military authorities. (2) By reason of the sentence of a general court-martial. (3) Resignation by an officer for the good of the service. (4) As a deserter. (5) As an alien during a period of hostilities, where it is affirmatively shown that the former service member requested his or her release. See § 3.7(b). (6) By reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days (38 U.S.C. 5303(a)). (i) Compelling circumstances exception. This paragraph (c)(6) does not apply if compelling circumstances mitigate the prolonged unauthorized absence, as discussed in paragraph (e) of this section. (ii) Applicability prior to October 8, 1977. This paragraph (c)(6) applies to any person awarded an honorable or general discharge prior to October 8, 1977, under one of the programs listed in paragraph (i) of this section, and to any person who prior to October 8, 1977, had not otherwise established basic eligibility… | ||||
| 38:38:1.0.1.1.4.1.57.11 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.12a Minimum active-duty service requirement. | VA | [47 FR 24549, June 7, 1982] | (a) Definitions. (1) The term minimum period of active duty means, for the purposes of this section, the shorter of the following periods. (i) Twenty-four months of continuous active duty. Non-duty periods that are excludable in determining the Department of Veterans Affairs benefit entitlement (e.g., see § 3.15) are not considered as a break in service for continuity purposes but are to be subtracted from total time served. (ii) The full period for which a person was called or ordered to active duty. (2) The term benefit includes a right or privilege but does not include a refund of a participant's contributions under 38 U.S.C. Ch. 32. (b) Effect on Department of Veterans Affairs benefits. Except as provided in paragraph (d) of this section, a person listed in paragraph (c) of this section who does not complete a minimum period of active duty is not eligible for any benefit under title 38, United States Code or under any law administered by the Department of Veterans Affairs based on that period of active service. (c) Persons included. Except as provided in paragraph (d) of this section, the provisions of paragraph (b) of this section apply to the following persons: (1) A person who originally enlists (enlisted person only) in a regular component of the Armed Forces after September 7, 1980 (a person who signed a delayed-entry contract with one of the service branches prior to September 8, 1980, and under that contract was assigned to a reserve component until entering on active duty after September 7, 1980, shall be considered to have enlisted on the date the person entered on active duty); and (2) Any other person (officer as well as enlisted) who enters on active duty after October 16, 1981 and who has not previously completed a continuous period of active duty of at least 24 months or been discharged or released from active duty under 10 U.S.C. 1171 (early out). (d) Exclusions. The provisions of paragraph (b) of this section are not applicable to the following cases: (1) To a person who i… | ||||
| 38:38:1.0.1.1.4.1.57.12 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.13 Discharge to change status. | VA | [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; 87 FR 26125, May 3, 2022] | (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 survivors pension purposes, § 3.3(b)(3) and (4) is controlling as to basic entitlement when the conditions prescribed therein are met. (c) Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military, naval, air, or space service when the following conditions are met: (1) The person served in the active military, naval, air, or space 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 that time except for the intervening enlistment or reenlistment. | ||||
| 38:38:1.0.1.1.4.1.57.13 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.14 Validity of enlistments. | VA | [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 4024, Apr. 27, 1962] | Service is valid unless the enlistment is voided by the service department. (a) Enlistment not prohibited by statute. Where an enlistment is voided by the service department for reasons other than those stated in paragraph (b) of this section, service is valid from the date of entry upon active duty to the date of voidance by the service department. Benefits may not be paid, however, unless the discharge is held to have been under conditions other than dishonorable. Generally discharge for concealment of a physical or mental defect except incompetency or insanity which would have prevented enlistment will be held to be under dishonorable conditions. (b) Statutory prohibition. Where an enlistment is voided by the service department because the person did not have legal capacity to contract for a reason other than minority (as in the case of an insane person) or because the enlistment was prohibited by statute (a deserter or person convicted of a felony), benefits may not be paid based on that service even though a disability was incurred during such service. An undesirable discharge by reason of the fraudulent enlistment voids the enlistment from the beginning. (c) Misrepresentation of age. Active service which was terminated because of concealment of minority or misrepresentation of age is honorable if the veteran was released from service under conditions other than dishonorable. Service is valid from the date of entry upon active duty to the date of discharge. (d) Honorable discharges. Determinations as to honorable service will be made by the service departments and the finding shall be binding on the Department of Veterans Affairs, but, in the case of an alien, the effect of the discharge will be governed by § 3.7(b). | ||||
| 38:38:1.0.1.1.4.1.57.14 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.15 Computation of service. | VA | [40 FR 16064, Apr. 9, 1975] | For nonservice-connected or service-connected benefits, active service is countable exclusive of time spent on an industrial, agricultural, or indefinite furlough, time lost on absence without leave (without pay), under arrest (without acquittal), in desertion, while undergoing sentence of court-martial or a period following release from active duty under the circumstances outlined in § 3.41. In claims based on Spanish-American War service, leave authorized under General Order No. 130, War Department, is included. Duty periods. See § 3.6(b)(6). | ||||
| 38:38:1.0.1.1.4.1.57.15 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.16 Service pension. | VA | [41 FR 18299, May 3, 1976, as amended at 44 FR 45932, Aug. 6, 1979] | In computing the 70 or 90 days required under § 3.3(a) active service which began before or extended beyond the war period will be included if such service was continuous. Broken periods of service during a war period may be added together to meet the requirement for length of service. | ||||
| 38:38:1.0.1.1.4.1.57.16 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.17 Disability and survivors pension; Mexican border period and later war periods. | VA | [37 FR 6676, Apr. 1, 1972, as amended at 44 FR 45932, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991] | In computing the 90 days' service required for pension entitlement (see § 3.3), there will be included active service which began before and extended into the Mexican border period or ended during World War I, or began or ended during World War II, the Korean conflict, the Vietnam era or the Persian Gulf War, if such service was continuous. Service during different war periods may be combined with service during any other war period to meet the 90 days' service requirement. | ||||
| 38:38:1.0.1.1.4.1.57.17 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | §§ 3.18-3.19 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.57.18 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.20 Surviving spouse's benefit for month of veteran's death. | VA | [48 FR 34471, July 29, 1983, as amended at 62 FR 35422, July 1, 1997; 64 FR 30392, June 8, 1999] | (a) Where the veteran died on or after December 1, 1962, and before October 1, 1982, the rate of survivors 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. (b) Where the veteran dies on or after October 1, 1982, the surviving spouse may be paid survivors pension or dependency and indemnity compensation for the month in which the veteran died at a rate equal to the amount of compensation or pension which would have been payable to the veteran for that month had death not occurred, but only if such rate is equal to or greater than the monthly rate of survivors pensionor dependency and indemnity compensation to which the surviving spouse is entitled. Otherwise, no payment of survivors pension or dependency and indemnity compensation may be made for the month in which the veteran died. (c)(1) Where a veteran receiving compensation or pension dies after December 31, 1996, the surviving spouse, if not entitled to death compensation, dependency and indemnity compensation, or survivors 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 survivors 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 s… | ||||
| 38:38:1.0.1.1.4.1.57.19 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.21 Monetary rates. | VA | [44 FR 45932, Aug. 6, 1979] | The rates of compensation, dependency and indemnity compensation for surviving spouses and children, and section 306 and old-law disability and survivors pension, are published in tabular form in appendix B of the Veterans Benefits Administration Manual M21-1 and are to be given the same force and effect as if published in the regulations (title 38, Code of Federal Regulations). The maximum annual rates of improved pension payable under Pub. L. 95-588 (92 Stat. 2497) are set forth in §§ 3.23 and 3.24. The monthly rates and annual income limitations applicable to parents' dependency and indemnity compensation are set forth in § 3.25. Section 306 pension. See § 3.1(u). Old-law pension. See § 3.1(v). Improved pension. See § 3.1(w). | ||||
| 38:38:1.0.1.1.4.1.57.2 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.2 Periods of war. | VA | [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; 87 FR 68363, Nov. 15, 2022] | 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 § 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 November 1, 1955, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. (g) Future dates. The period beginning on the date of any future declaration of war by the Congress and ending on a date prescribed by Presidential proclamation or concurrent resolution of the Congress. (h) Mexican border period. May 9, 1916, through April 5, 1917, in the case o… | ||||
| 38:38:1.0.1.1.4.1.57.20 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.22 DIC benefits for survivors of certain veterans rated totally disabled at time of death. | VA | [44 FR 22718, Apr. 17, 1979, as amended at 48 FR 41161, Sept. 14, 1983; 53 FR 23235, June 21, 1988; 54 FR 31829, Aug. 2, 1989; 65 FR 3391, Jan. 21, 2000; 65 FR 43699, July 14, 2000; 70 FR 72220, Dec. 2, 2005; 77 FR 40526, July 10, 2012] | (a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected, if: (1) The veteran's death was not the result of his or her own willful misconduct, and (2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) Rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war. (b) For purposes of this section, “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied: (1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or (2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the relevant period specified in paragraph (a)(2) of this section; or (3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in pa… | ||||
| 38:38:1.0.1.1.4.1.57.21 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.23 Improved pension rates—Veterans and surviving spouses. | VA | [44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 53 FR 23235, June 21, 1988] | (a) Maximum annual rates of improved pension. The maximum annual rates of improved pension for the following categories of beneficiaries shall be the amounts specified in 38 U.S.C. 1521 and 1542, as increased from time to time under 38 U.S.C. 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rates will be published in the “Notices” section of the Federal Register. (1) Veterans who are permanently and totally disabled. (2) Veterans in need of aid and attendance. (3) Veterans who are housebound. (4) Two veterans married to one another; combined rates. (5) Surviving spouse alone or with a child or children of the deceased veteran in custody of the surviving spouse. (6) Surviving spouses in need of aid and attendance. (7) Surviving spouses who are housebound. (b) Reduction for income. The maximum rates of improved pension in paragraph (a) of this section shall be reduced by the amount of the countable annual income of the veteran or surviving spouse. (c) Mexican border period and World War I veterans. The applicable maximum annual rate payable to a Mexican border period or World War I veteran under this section shall be increased by the amount specified in 38 U.S.C. 1521(g), as increased from time to time under 38 U.S.C 5312. Each time there is an increase under 38 U.S.C. 5312, the actual rate will be published in the “Notices” section of the Federal Register. (d) Definitions of terms used in this section —(1) Dependent. A veteran's spouse or child. A veteran's spouse who resides apart from the veteran and is estranged from the veteran may not be considered the veteran's dependent unless the spouse receives reasonable support contributions from the veteran. (Note that under § 3.60 a veteran and spouse who reside apart are considered to be living together unless they are estranged.) A child of a veteran not in custody of the veteran and to whose support the veteran is not reasonably contributing, may not be considered the veteran's dependent. (2) In need of aid and attendance… | ||||
| 38:38:1.0.1.1.4.1.57.22 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.24 Improved pension rates—Surviving children. | VA | [44 FR 45933, Aug. 6, 1979, as amended at 52 FR 34907, Sept. 14, 1987; 61 FR 20727, May 8, 1996] | (a) General. The provisions of this section apply to children of a deceased veteran not in the custody of a surviving spouse who has basic eligibility to receive improved pension. Children in custody of a surviving spouse who has basic eligibility to receive improved pension do not have separate entitlement. Basic eligibility to receive improved pension means that the surviving spouse is in receipt of improved pension or could become entitled to receive improved pension except for the amount of the surviving spouse's countable annual income or the size of the surviving spouse's estate (See § 3.274(c)). Under § 3.23(d)(5) the countable annual income of a surviving spouse includes the countable annual income of each child of the veteran in custody of the surviving spouse to the extent the child's income is reasonably available to or for the surviving spouse, unless in the judgment of the Department of Veterans Affairs to do so would work a hardship on the surviving spouse. (b) Child with no personal custodian or in the custody of an institution. In cases in which there is no personal custodian, i.e. , there is no person who has the legal right to exercise parental control and responsibility for the child's welfare (See § 3.57(d)), or the child is in the custody of an institution, pension shall be paid to the child at the annual rate specified in 38 U.S.C. 1542, as increased from time to time under 38 U.S.C. 5312, reduced by the amount of the child's countable annual income. Each time there is an increase under 38 U.S.C. 5312, the actual rate will be published in the “Notices” section of the Federal Register. (c) Child in the custody of person legally responsible for support —(1) Single child. Pension shall be paid to a child in the custody of a person legally responsible for the child's support at an annual rate equal to the difference between the rate for a surviving spouse and one child under § 3.23(a)(5), and the sum of the annual income of such child and the annual income of such person or, the maxim… | ||||
| 38:38:1.0.1.1.4.1.57.23 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.25 Parent's dependency and indemnity compensation (DIC)—Method of payment computation. | VA | [52 FR 34907, Sept. 14, 1987, as amended at 61 FR 20727, May 8, 1996] | Monthly payments of parents' DIC shall be computed in accordance with the following formulas: (a) One parent. Except as provided in paragraph (b) of this section, if there is only one parent, the monthly rate specified in 38 U.S.C 1315(b)(1), as increased from time to time under 38 U.S.C. 5312, reduced by $.08 for each dollar of such parent's countable annual income in excess of $800. No payments of DIC may be made under this paragraph, however, if such parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(b)(3), as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under this paragraph may be less than $5 a month. (b) One parent who has remarried. If there is only one parent and the parent has remarried and is living with the parent's spouse, DIC shall be paid under paragraph (a) or paragraph (d) of this section, whichever shall result in the greater benefit being paid to the veteran's parent. In the case of remarriage, the total combined annual income of the parent and the parent's spouse shall be counted in determining the monthly rate of DIC. (c) Two parents not living together. The rate computation method in this paragraph applies to: (1) Two parents who are not living together, or (2) An unremarried parent when both parents are living and the other parent has remarried. The monthly rate of DIC paid to such parent shall be the rate specified in 38 U.S.C. 1315(c)(1), as increased from time to time under 38 U.S.C. 5312, reduced by an amount no greater than $.08 for each dollar of such parent's countable annual income in excess of $800, except that no payments of DIC may be made under this paragraph if such parent's countable annual income exceeds the amount specified in 38 U.S.C. 1315(c)(3), as increased from time to time under 38 U.S.C. 5312, and no payment of DIC to a parent under this paragraph may be less than $5 monthly. Each time there is a rate increase under 38 U.S.C. 5312, the amount of the reduction under this paragraph shall be r… | ||||
| 38:38:1.0.1.1.4.1.57.24 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.26 Section 306 and old-law pension annual income limitations. | VA | [52 FR 34908, Sept. 14, 1987] | (a) The annual income limitations for section 306 pension shall be the amounts specified in section 306(a)(2)(A) of Pub. L. 95-588, as increased from time to time under section 306(a)(3) of Pub. L. 95-588. (b) If a beneficiary under section 306 pension is in need of aid and attendance, the annual income limitation under paragraph (a) of this section shall be increased in accordance with 38 U.S.C. 1521(d), as in effect on December 31, 1978. (c) The annual income limitations for old-law pension shall be the amounts specified in section 306(b)(3) of Pub. L. 95-588, as increased from time to time under section 306(b)(4) of Pub. L. 95-588. (d) Each time there is an increase under section 306 (a)(3) or (b)(4) of Pub. L. 95-588, the actual income limitations will be published in the “Notices” section of the Federal Register. | ||||
| 38:38:1.0.1.1.4.1.57.25 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.27 Automatic adjustment of benefit rates. | VA | [44 FR 45934, Aug. 6, 1979, as amended at 52 FR 34908, Sept. 14, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 68 FR 55467, Sept. 26, 2003; 76 FR 4247, Jan. 25, 2011] | (a) Improved pension. Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage each maximum annual rate of pension. (b) Parents' dependency and indemnity compensation — maximum annual income limitation and maximum monthly rates. Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage the annual income limitations and the maximum monthly rates of dependency indemnity compensation for parents. (c) Monetary allowance under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea. Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of Title II of the Social Security Act, VA shall, effective on the dates such increases become effective, increase by the same percentage the monthly allowance rates under 38 U.S.C. chapter 18. (d) Medal of Honor pension. Beginning in the year 2004, VA shall, effective December 1 of each year, increase the monthly Medal of Honor pension by the same percentage as the percentage by which benefit amounts payable under section 215(i) of Title II of the Social Security Act are increased effective December 1 of such year. (e) Publishing requirements. Increases in pension rates, parents' dependency and indemnity compensation rates and income limitation, the monthly allowance rates under 38 U.S.C. chapter 18 and the Medal of Honor pension made under this section shall be published in the Federal Register. | ||||
| 38:38:1.0.1.1.4.1.57.26 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.28 Automatic adjustment of section 306 and old-law pension income limitations. | VA | [52 FR 34908, Sept. 14, 1987] | Whenever the maximum annual rates of improved pension are increased by reason of the provisions of 38 U.S.C. 5312, the following will be increased by the same percentage effective the same date: (a) The maximum annual income limitations applicable to continued receipt of section 306 and old-law pension; and (b) The dollar amount of a veteran's spouse's income that is excludable in determining the income of a veteran for section 306 pension purposes. (See § 3.262(b)(2)) These increases shall be published in the Federal Register at the same time that increases under § 3.27 are published. Section 306 and old-law pension annual income limitations. See § 3.26. | ||||
| 38:38:1.0.1.1.4.1.57.27 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.29 Rounding. | VA | [48 FR 34471, July 29, 1983, as amended at 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 75 FR 4247, Jan. 25, 2011] | (a) Annual rates. Where the computation of an increase in improved pension rates under §§ 3.23 and 3.24 would otherwise result in a figure which includes a fraction of a dollar, the benefit rate will be adjusted to the next higher dollar amount. This method of computation will also apply to increases in old-law and section 306 pension annual income limitations under § 3.26, including the income of a spouse which is excluded from a veteran's countable income, and parents' dependency and indemnity compensation benefit rates and annual income limitations under § 3.25. (b) Monthly or other periodic pension rates. After determining the monthly or other periodic rate of improved pension under §§ 3.273 and 3.30 or the rate payable under section 306(a) of Pub. L. 95-588 (92 Stat. 2508), the resulting rate, if not a multiple of one dollar, will be rounded down to the nearest whole dollar amount. The provisions of this paragraph apply with respect to amounts of pension payable for periods beginning on or after June 1, 1983, under the provisions of 38 U.S.C. 1521, 1541 or 1542, or under section 306(a) of Pub. L. 95-588. (c) Monthly rates under 38 U.S.C. chapter 18. When increasing the monthly monetary allowance rates under 38 U.S.C. chapter 18 for certain individuals who are children of Vietnam veterans or children of veterans with covered service in Korea, VA will round any resulting rate that is not an even dollar amount to the next higher dollar. | ||||
| 38:38:1.0.1.1.4.1.57.28 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.30 Frequency of payment of improved pension and parents' dependency and indemnity compensation (DIC). | VA | [44 FR 45935, Aug. 6, 1979, as amended at 51 FR 1790, Jan. 15, 1986; 53 FR 7903, Mar. 11, 1988; 57 FR 10425, Mar. 26, 1992; 71 FR 52290, Sept. 5, 2006] | Payment shall be made as shown in paragraphs (a), (b), (c), (d), (e), and (f) of this section; however, beneficiaries receiving payment less frequently than monthly may elect to receive payment monthly in cases in which other Federal benefits would otherwise be denied. (a) Improved pension—Monthly. Payment shall be made monthly if the annual rate payable is $228 or more. (b) Improved pension—Quarterly. Payment shall be made every 3 months on or about March 1, June 1, September l, and December 1, if the annual rate payable is at least $144 but less than $228. (c) Improved pension—Semiannually. Payment shall be made every 6 months on or about June 1, and December 1, if the annual rate payable is at least $72 but less than $144. (d) Improved pension—Annually. Payment shall be made annually on or about June 1, if the annual rate payable is less than $72. (e) Parents' DIC—Semiannually. Benefits shall be paid every 6 months on or about June 1, and December 1, if the amount of the annual benefit is less than 4 percent of the maximum annual rate payable under 38 U.S.C. 1315. (f) Payment of less than one dollar. Payments of less than $1 shall not be made. Pension. See § 3.3(a)(3), (b)(4). | ||||
| 38:38:1.0.1.1.4.1.57.29 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.31 Commencement of the period of payment. | VA | [48 FR 34472, July 29, 1983; 48 FR 37031, Aug. 16, 1983, as amended at 49 FR 47003, Nov. 30, 1984; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 166, Jan. 18, 2019; 91 FR 905, Jan. 9, 2026] | Regardless of VA regulations concerning effective dates of awards, and except as provided in paragraph (c) of this section, payment of monetary benefits based on original, supplemental, or increased awards of compensation, pension, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or a child of a veteran with covered service in Korea may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. However, beneficiaries will be deemed to be in receipt of monetary benefits during the period between the effective date of the award and the date payment commences for the purpose of all laws administered by the Department of Veterans Affairs except that nothing in this section will be construed as preventing the receipt of retired or retirement pay prior to the effective date of waiver of such pay in accordance with 38 U.S.C. 5305. (a) Increased award defined. For the purposes of this section the term increased award means an award which is increased because of an added dependent, increase in disability or disability rating, or reduction in income. The term also includes elections of improved pension under section 306 of Pub. L. 95-588 and awards pursuant to paragraphs 29 and 30 of the Schedule for Rating Disabilities except as provided in paragraph (c) of this section. (b) General rule of applicability. The provisions of this section apply to all original, supplemental, or increased awards unless such awards provide only for continuity of entitlement with no increase in rate of payment. (c) Specific exclusions. The provisions of this section do not apply to the following types of awards. (1) Surviving spouse's rate for the month of a veteran's death (for exception see § 3.20(b)) (2) In cases where military retired or retirement pay is greater than the amount of compensation payable, compensation will be paid as of the effective date of waiver of… | ||||
| 38:38:1.0.1.1.4.1.57.3 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.3 Pension. | VA | [44 FR 45931, Aug. 6, 1979, as amended at 56 FR 19579, Apr. 29, 1991; 56 FR 22910, May 17, 1991; 56 FR 25044, June 3, 1991; 56 FR 57986, Nov. 15, 1991; 68 FR 34541, June 10, 2003; 87 FR 26125, May 3, 2022] | (a) Pension for veterans —(1) Service pension; Spanish-American War. A benefit payable monthly by the Department of Veterans Affairs because of service in the Spanish-American War. Basic entitlement exists if a veteran: (i) Had 70 (or 90) days or more active service during the Spanish-American War; or (ii) Was discharged or released from such service for a disability adjudged service connected without benefit of presumptive provisions of law, or at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability. (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 to… | ||||
| 38:38:1.0.1.1.4.1.57.30 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.32 Exchange rates for foreign currencies. | VA | [55 FR 8140, Mar. 7, 1990; 55 FR 10867, Mar. 23, 1990] | When determining the rates of pension or parents' DIC or the amounts of burial, plot or headstone allowances or accrued benefits to which a claimant or beneficiary may be entitled, income received or expenses paid in a foreign currency shall be converted into U.S. dollar equivalents employing quarterly exchange rates established by the Department of the Treasury. (a) Pension and parents' DIC. (1) Because exchange rates for foreign currencies cannot be determined in advance, rates of pension and parents' DIC shall be projected using the most recent quarterly exchange rate and shall be adjusted retroactively based upon actual exchange rates when an annual eligibility verification report is filed. (2) Retroactive adjustments due to fluctuations in exchange rates shall be calculated using the average of the four most recent quarterly exchange rates. If the claimant reports income and expenses for a prior reporting period, the retroactive adjustment shall be calculated using the average of the four quarterly rates which were the most recent available on the closing date of the twelve-month period for which income and expenses are reported. (b) Burial, plot or headstone allowances and accrued benefits. Payment amounts for burial, plot or headstone allowances and claims for accrued benefits as reimbursement from the person who bore the expenses of a deceased beneficiary's last illness or burial shall be determined using the quarterly exchange rate for the quarter in which the expenses forming the basis of the claim were paid. If the claim is filed by an unpaid creditor, however, the quarterly rate for the quarter in which the veteran died shall apply. When entitlement originates during a quarter for which the Department of the Treasury has not yet published a quarterly rate, amounts due shall be calculated using the most recent quarterly exchange rate. Accrued benefits. See § 3.1000. Accrued benefits payable to foreign beneficiaries. See § 3.1008. | ||||
| 38:38:1.0.1.1.4.1.57.31 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.33 Reevaluation of Claims for Dependency and Indemnity Compensation Involving Presumptions of Service Connection Following Enactment of Public Law 117-168. | VA | [88 FR 82264, Nov. 24, 2023] | (a) Purpose. This section states effective date and election rules based on amendments made under Public Law 117-168, which provides for the reevaluation of certain previously denied dependency and indemnity compensation (DIC) claims when a law establishes or modifies a presumption of service connection. (b) Definitions. For purpose of this section: (1) Law means any law, regulation, or Federal court decision or settlement establishing or modifying a presumption of service connection. (2) Relevant claimant means an individual who submitted a claim for DIC to VA that was evaluated and denied by VA before the date on which such a provision of law went into effect and might have been evaluated differently had the establishment or modification of the service connection presumption been applicable to the claim. (c) Election of review —(1) General. VA will not reevaluate under this section any previously denied claim for DIC prior to election by the relevant claimant. (2) Form of election. Reevaluation of a previously denied DIC claim must be at the election of the relevant claimant on a prescribed form pursuant to § 3.152(a). (d) Effective date of award. If a relevant claimant is found entitled to DIC based on the establishment or modification of a presumption of service connection, the effective date of the award will be as follows: (1) If VA denied a claim for DIC prior to a law defined under (b)(1) of this section that establishes or modifies a presumption of service connection on or after August 10, 2022 (the date of enactment of Pub. L. 117-168), the effective date of the award will be determined as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim. (2) If the requirements of paragraph (d)(1) are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. (e) Outreach and identification of relevant claimants. (1) VA will conduct the following efforts … | ||||
| 38:38:1.0.1.1.4.1.57.32 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.40 Philippine and Insular Forces. | VA | [26 FR 1565, Feb. 24, 1961, as amended at 31 FR 14454, Nov. 10, 1966; 60 FR 18355, Apr. 11, 1995. Redesignated and amended at 66 FR 66767, Dec. 27, 2001; 71 FR 8220, Feb. 16, 2006] | (a) Regular Philippine Scouts. Service in the Philippine Scouts (except that described in paragraph (b) of this section), the Insular Force of the Navy, Samoan Native Guard, and Samoan Native Band of the Navy is included for pension, compensation, dependency and indemnity compensation, and burial allowance. Benefits are payable in dollars at the full-dollar rate. (b) Other Philippine Scouts. Service of persons enlisted under section 14, Pub. L. 190, 79th Congress (Act of October 6, 1945), is included for compensation and dependency and indemnity compensation. Except as provided in §§ 3.42 and 3.43, benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. All enlistments and reenlistments of Philippine Scouts in the Regular Army between October 6, 1945, and June 30, 1947, inclusive, were made under the provisions of Pub. L. 190 as it constituted the sole authority for such enlistments during that period. This paragraph does not apply to officers who were commissioned in connection with the administration of Pub. L. 190. (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. Except as provided in §§ 3.42 and 3.43, benefits based on service described in this paragraph are payable at a rate of $0.50 for each dollar authorized under the law. (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 pe… | ||||
| 38:38:1.0.1.1.4.1.57.33 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.41 Philippine service. | VA | [26 FR 1566, Feb. 24, 1961, as amended at 26 FR 4612, May 26, 1961Redesignated at 66 FR 66767, Dec. 27, 2001] | (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 servi… | ||||
| 38:38:1.0.1.1.4.1.57.34 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.42 Compensation at the full-dollar rate for certain Filipino veterans residing in the United States. | VA | [66 FR 66767, Dec. 27, 2001, as amended at 71 FR 8220, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] | (a) Definitions. For purposes of this section: (1) United States (U.S.) means the states, territories and possessions of the United States; the District of Columbia, and the Commonwealth of Puerto Rico. (2) Residing in the U.S. means that an individual's principal, actual dwelling place is in the U.S. and that the individual meets the residency requirements of paragraph (c)(4) of this section. (3) Citizen of the U.S. means any individual who acquires U.S. citizenship through birth in the territorial U.S., birth abroad as provided under title 8, United States Code, or through naturalization, and has not renounced his or her U.S. citizenship, or had such citizenship cancelled, revoked, or otherwise terminated. (4) Lawfully admitted for permanent residence means that an individual has been lawfully accorded the privilege of residing permanently in the U.S. as an immigrant by the U.S. Citizenship and Immigration Services under title 8, United States Code, and still has this status. (b) Eligibility requirements. Compensation and dependency and indemnity compensation is payable at the full-dollar rate, based on service described in § 3.40(b), (c), or (d), to a veteran or a veteran's survivor who is residing in the U.S. and is either: (1) A citizen of the U.S., or (2) An alien lawfully admitted for permanent residence in the U.S. (c) Evidence of eligibility. (1) A valid original or copy of one of the following documents is required to prove that the veteran or the veteran's survivor is a natural born citizen of the U.S.: (i) A valid U.S. passport; (ii) A birth certificate showing that he or she was born in the U.S.; or (iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate abroad. (2) Only verification by the U.S. Citizenship and Immigration Services to VA that a veteran or a veteran's survivor is a naturalized citizen of the U.S., or a valid U.S. passport, will be sufficient proof of such status. (3) Only verification by the U.S. Citizenship and Immigration Service… | ||||
| 38:38:1.0.1.1.4.1.57.35 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.43 Burial benefits at the full-dollar rate for certain Filipino veterans residing in the United States on the date of death. | VA | [66 FR 66767, Dec. 27, 2001, as amended at 71 FR 8221, Feb. 16, 2006; 72 FR 9, Jan. 3, 2007] | (a) Definitions. For purposes of this section: (1) United States (U.S.) means the states, territories and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. (2) Residing in the U.S. means an individual's principal, actual dwelling place was in the U.S. When death occurs outside the U.S., VA will consider the deceased individual to have been residing in the U.S. on the date of death if the individual maintained his or her principal actual dwelling place in the U.S. until his or her most recent departure from the U.S., and he or she had been physically absent from the U.S. less than 61 consecutive days when he or she died. (3) Citizen of the U.S. means any individual who acquires U.S. citizenship through birth in the territorial U.S., birth abroad as provided under title 8, United States Code, or through naturalization, and has not renounced his or her U.S. citizenship, or had such citizenship cancelled, revoked, or otherwise terminated. (4) Lawfully admitted for permanent residence means that the individual was lawfully accorded the privilege of residing permanently in the U.S. as an immigrant by the U.S. Citizenship and Immigration Services under title 8, United States Code, and on the date of death, still had this status. (b) Eligibility requirements. VA will pay burial benefits under chapter 23 of title 38, United States Code, at the full-dollar rate, based on service described in § 3.40(c) or (d), when an individual who performed such service dies after November 1, 2000, or based on service described in § 3.40(b) when an individual who performed such service dies after December 15, 2003, and was on the date of death: (1) Residing in the U.S.; and (2) Either— (i) A citizen of the U.S., or (ii) An alien lawfully admitted for permanent residence in the U.S.; and (3) Either— (i) Receiving compensation under chapter 11 of title 38, United States Code; or (ii) Would have satisfied the disability, income and net worth requirements of § 3.3(a)(3) of… | ||||
| 38:38:1.0.1.1.4.1.57.4 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.4 Compensation. | VA | [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] | (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. (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. (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. (c) Death compensation. Basic entitlement exists for a surviving spouse, child or children, and dependent parent or parents if: (1) The veteran died before January 1, 1957; or (2) The veteran died on or after May 1, 1957, and before January 1, 1972, if at the time of death a policy of United States Government Life Insurance or National Service Life Insurance was in effect under waiver of premiums under 38 U.S.C. 1924 unless the waiver was granted under the first proviso of section 622(a) of the National Service Life Insurance Act of 1940, and the veteran died before return to military jurisdiction or within 120 days thereafter. (See § 3.5(d) as to Public Health Service.) | ||||
| 38:38:1.0.1.1.4.1.57.5 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.5 Dependency and indemnity compensation. | VA | [29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979; 58 FR 25561, Apr. 27, 1993; 58 FR 27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR 72220, Dec. 2, 2005; 73 FR 23356, Apr. 30, 2008; 91 FR 2713, Jan. 22, 2026] | (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. (b) Entitlement. Basic entitlement for a surviving spouse, child or children, and parent or parents of a veteran exists, if: (1) Death occurred on or after January 1, 1957, except in the situation specified in § 3.4(c)(2); or (2) Death occurred prior to January 1, 1957, and the claimant was receiving or eligible to receive death compensation on December 31, 1956 (or, as to a parent, would have been eligible except for income), under laws in effect on that date or who subsequently becomes eligible by reason of a death which occurred prior to January 1, 1957; or (3) Death occurred on or after May 1, 1957, and before January 1, 1972, and the claimant had been ineligible to receive dependency and indemnity compensation because of the exception in subparagraph (1) of this paragraph. In such case dependency and indemnity compensation is payable upon election. (c) Exclusiveness of remedy. (1) Except as provided in paragraph (c)(2) of this section, 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 survivors pension or death compensation under any other law administered by the Department of Veterans Affairs. (2) A surviving spouse who, but for the surviving spouse's eligibility for dependency and indemnity compensation, would be eligible to receive survivors pension at the rate provided for in 38 U.S.C. 5503(d) will receive survivors pension instead of such compensation. (d) Group life insurance. No dependency and indemnity compensation or death compensation shall be paid to any surviving spouse, child or parent based on the … | ||||
| 38:38:1.0.1.1.4.1.57.6 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.6 Duty periods. | VA | [26 FR 1564, Feb. 24, 1961, as amended at 26 FR 6767, July 28, 1961; 27 FR 4023, Apr. 27, 1962; 29 FR 14171, Oct. 15, 1964; 36 FR 5341, Mar. 20, 1971; 41 FR 26881, June 29, 1976; 49 FR 47003, Nov. 30, 1984; 54 FR 51200, Dec. 13, 1989; 55 FR 23931, June 13, 1990; 60 FR 57179, Nov. 14, 1995; 61 FR 11731, Mar. 22, 1996; 66 FR 48560, Sept. 21, 2001; 67 FR 49585, July 31, 2002; 87 FR 26125, May 3, 2022] | (a) Active military, naval, air, or space service. This includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. (b) Active duty. This means: (1) Full-time duty in the Armed Forces, other than active duty for training; (2) Full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service: (i) On or after July 29, 1945, or (ii) Before that date under circumstances affording entitlement to full military benefits, or (iii) At any time, for the purposes of dependency and indemnity compensation. (3) Full-time duty as a commissioned officer of the Coast and Geodetic Survey or of its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration: (i) On or after July 29, 1945, or (ii) Before that date: ( a ) While on transfer to one of the Armed Forces, or ( b ) While, in time of war or national emergency declared by the President, assigned to duty on a project for one of the Armed Forces in an area determined by the Secretary of Defense to be of immediate military hazard, or ( c ) In the Philippine Islands on December 7, 1941, and continuously in such islands thereafter, or (iii) At any time, for the purposes of dependency and indemnity compensation. (4) Service at any time as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy; (5) Attendance at the preparatory schools of the United States Air Force Academy, the United States Military Academy, or the United States Naval Academy for enlisted a… | ||||
| 38:38:1.0.1.1.4.1.57.7 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.7 Individuals and groups considered to have performed active military, naval, air, or space service. | VA | [26 FR 1565, Feb. 24, 1961] | The following individuals and groups are considered to have performed active military, naval, air, or space service: (a) Aerial transportation of mail ( Pub. L. 140, 73d Congress ). Persons who were injured or died while serving under conditions set forth in Pub. L. 140, 73d Congress. (b) Aliens. Effective July 28, 1959, a veteran discharged for alienage during a period of hostilities unless evidence affirmatively shows he or she was discharged at his or her own request. A veteran who was discharged for alienage after a period of hostilities and whose service was honest and faithful is not barred from benefits if he or she is otherwise entitled. A discharge changed prior to January 7, 1957, to honorable by a board established under authority of section 301, Pub. L. 346, 78th Congress, as amended, or section 207, Pub. L. 601, 79th Congress, as amended (now 10 U.S.C. 1552 and 1553), will be considered as evidence that the discharge was not at the alien's request. (See § 3.12.) (c) Army field clerks. Included as enlisted men. (d) Army Nurse Corps, Navy Nurse Corps, and female dietetic and physical therapy personnel. (1) Army and Navy nurses (female) on active service under order of the service department. (2) Dietetic and physical therapy (female) personnel, excluding students and apprentices, appointed with relative rank on or after December 22, 1942, or commissioned on or after June 22, 1944. (e) Aviation camps. Students who were enlisted men during World War I. (f) Cadets and midshipmen. See § 3.6(b)(4). (g) Coast and Geodetic Survey, and its successor agencies, the Environmental Science Services Administration and the National Oceanic and Atmospheric Administration. See § 3.6(b)(3). (h) Coast Guard. Active service in Coast Guard on or after January 29, 1915, while under jurisdiction of the Treasury Department, Navy Department, or the Department of Transportation. (See § 3.6 (c) and (d) as to temporary members of the Coast Guard Reserves.) (i) Contract surgeons. For compensation and de… | ||||
| 38:38:1.0.1.1.4.1.57.8 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.10 Dependency and indemnity compensation rate for a surviving spouse. | VA | [70 FR 72220, Dec. 2, 2005, as amended at 71 FR 44918, Aug. 8, 2006; 77 FR 40525, July 10, 2012; 80 FR 18117, Apr. 3, 2015] | (a) General determination of rate. When VA grants a surviving spouse entitlement to DIC, VA will determine the rate of the benefit it will award. The rate of the benefit will be the total of the basic monthly rate specified in paragraph (b) or (d) of this section and any applicable increases specified in paragraph (c) or (e) of this section. (b) Basic monthly rate. Except as provided in paragraph (d) of this section, the basic monthly rate of DIC for a surviving spouse will be the amount set forth in 38 U.S.C. 1311(a)(1). (c) Section 1311(a)(2) increase. The basic monthly rate under paragraph (b) of this section shall be increased by the amount specified in 38 U.S.C. 1311(a)(2) if the veteran, at the time of death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least eight years immediately preceding death. Determinations of entitlement to this increase shall be made in accordance with paragraph (f) of this section. (d) Alternative basic monthly rate for death occurring prior to January 1, 1993. The basic monthly rate of DIC for a surviving spouse when the death of the veteran occurred prior to January 1, 1993, will be the amount specified in 38 U.S.C. 1311(a)(3) corresponding to the veteran's pay grade in service, but only if such rate is greater than the total of the basic monthly rate and the section 1311(a)(2) increase (if applicable) the surviving spouse is entitled to receive under paragraphs (b) and (c) of this section. The Secretary of the concerned service department will certify the veteran's pay grade and the certification will be binding on VA. DIC paid pursuant to this paragraph may not be increased by the section 1311(a)(2) increase under paragraph (c) of this section. (e) Additional increases. One or more of the following increases may be paid in addition to the basic monthly rate and the section 1311(a)(2) increase. (1) Increase for children. If the surviving spouse ha… | ||||
| 38:38:1.0.1.1.4.1.57.9 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.11 Homicide. | VA | [44 FR 22718, Apr. 17, 1979, as amended at 54 FR 31829, Aug. 2, 1989] | Any person who has intentionally and wrongfully caused the death of another person is not entitled to pension, compensation, or dependency and indemnity compensation or increased pension, compensation, or dependency and indemnity compensation by reason of such death. For the purpose of this section the term dependency and indemnity compensation includes benefits at dependency and indemnity compensation rates paid under 38 U.S.C. 1318. | ||||
| 38:38:1.0.1.1.4.1.58.36 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.50 Spouse and surviving spouse. | VA | [62 FR 5529, Feb. 6, 1997] | (a) Spouse. “Spouse” means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j). (b) Surviving spouse. Except as provided in § 3.52, “surviving spouse” means a person of the opposite sex whose marriage to the veteran meets the requirements of § 3.1(j) and who was the spouse of the veteran at the time of the veteran's death and: (1) Who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse; and (2) Except as provided in § 3.55, has not remarried or has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held himself or herself out openly to the public to be the spouse of such other person. | ||||
| 38:38:1.0.1.1.4.1.58.37 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.52 Marriages deemed valid. | VA | [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 1215, Feb. 9, 1962; 32 FR 13224, Sept. 19, 1967; 41 FR 18299, May 3, 1976] | Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if: (a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and (b) The claimant entered into the marriage without knowledge of the impediment, and (c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and (d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. Definition, marriage. See § 3.205(c). | ||||
| 38:38:1.0.1.1.4.1.58.38 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.53 Continuous cohabitation. | VA | [41 FR 18300, May 3, 1976, as amended at 59 FR 32659, June 24, 1994] | (a) General. The requirement that there must be continuous cohabitation from the date of marriage to the date of death of the veteran will be considered as having been met when the evidence shows that any separation was due to the misconduct of, or procured by, the veteran without the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation. (b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. | ||||
| 38:38:1.0.1.1.4.1.58.39 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.54 Marriage dates. | VA | [26 FR 1567, Feb. 24, 1961, as amended at 27 FR 6498, July 10, 1962; 32 FR 13224, Sept. 19, 1967; 40 FR 16064, Apr. 9, 1975; 40 FR 48680, Oct. 17, 1975; 41 FR 18300, May 3, 1976; 44 FR 22718, Apr. 17, 1979; 54 FR 31829, Aug. 2, 1989; 56 FR 5756, Feb. 13, 1991; 56 FR 57986, Nov. 15, 1991; 65 FR 3392, Jan. 21, 2000] | A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section. (a) Pension. survivors pension may be paid to a surviving spouse who was married to the veteran: (1) One year or more prior to the veteran's death, or (2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or (3) Prior to the applicable delimiting dates, as follows: (i) Civil War—June 27, 1905. (ii) Indian wars—March 4, 1917. (iii) Spanish-American War—January 1, 1938. (iv) Mexican border period and World War I—December 14, 1944. (v) World War II—January 1, 1957. (vi) Korean conflict—February 1, 1965. (vii) Vietnam era—May 8, 1985. (viii) Persian Gulf War—January 1, 2001. (b) Compensation. Death compensation may be paid to a surviving spouse who, with respect to date of marriage, could have qualified as a surviving spouse for death compensation under any law administered by the Department of Veterans Affairs in effect on December 31, 1957, or who was married to the veteran: (1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the veteran's death was incurred or aggravated, or (2) One year or more, or (3) For any period of time if a child was born of the marriage, or was born to them before the marriage. (c) Dependency and indemnity compensation. Dependency and indemnity compensation payable under 38 U.S.C. 1310(a) may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran: (1) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) For 1 year or more, or (3) For any period of time if a child was bo… | ||||
| 38:38:1.0.1.1.4.1.58.40 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.55 Reinstatement of benefits eligibility based upon terminated marital relationships. | VA | [58 FR 32444, June 10, 1993, as amended at 60 FR 52863, Oct. 11, 1995; 64 FR 30245, June 7, 1999; 65 FR 43700, July 14, 2000; 71 FR 29084, May 19, 2006; 87 FR 68363, Nov. 15, 2022] | (a) Surviving spouse. (1) Remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (i) Was void, or (ii) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Department of Veterans Affairs that the annulment was obtained through fraud by either party or by collusion. (2) On or after January 1, 1971, remarriage of a surviving spouse terminated prior to November 1, 1990, or terminated by legal proceedings commenced prior to November 1, 1990, by an individual who, but for the remarriage, would be considered the surviving spouse, shall not bar the furnishing of benefits to such surviving spouse provided that the marriage: (i) Has been terminated by death, or (ii) Has been dissolved by a court with basic authority to render divorce decrees unless the Department of Veterans Affairs determines that the divorce was secured through fraud by the surviving spouse or by collusion. (3) On or after October 1, 1998, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of dependency and indemnity compensation, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. (4) On or after December 1, 1999, remarriage of a surviving spouse terminated by death, divorce, or annulment, will not bar the furnishing of benefits relating to medical care for survivors and dependents under 38 U.S.C. 1781, educational assistance under 38 U.S.C. chapter 35, or housing loans under 38 U.S.C. chapter 37, unless the Secretary determines that the divorce or annulment was secured through fraud or collusion. (5) On or after January 1, 1971, the fact that a surviving spouse has lived with another person and has held himself or herself out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to him or her after he or she terminates the relationship, if the relationship terminated prior to Nov… | ||||
| 38:38:1.0.1.1.4.1.58.41 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.56 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.58.42 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.57 Child. | VA | [44 FR 45935, Aug. 6, 1979 and 45 FR 1878, Jan. 9, 1980, as amended at 45 FR 25391, Apr. 15, 1980; 49 FR 47003, Nov. 30, 1984; 65 FR 12116, Mar. 8, 2000; 72 FR 6959, Feb. 14, 2007; 80 FR 48451, Aug. 13, 2015] | (a) General. (1) Except as provided in paragraphs (a)(2) through (4) of this section, the term child of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. For the purposes of this section and § 3.667, the term “educational institution” means a permanent organization that offers courses of instruction to a group of students who meet its enrollment criteria, including schools, colleges, academies, seminaries, technical institutes, and universities. The term also includes home schools that operate in compliance with the compulsory attendance laws of the States in which they are located, whether treated as private schools or home schools under State law. The term “home schools” is limited to courses of instruction for grades kindergarten through 12. (2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term child of the veteran also includes the following unmarried persons: (i) A person who was adopted by the veteran between the ages of 18 and 23 years. (ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death. (3) Subject to the provisions of paragraphs (c) and (e) of this section, the term child also includes a person who became permanently… | ||||
| 38:38:1.0.1.1.4.1.58.43 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.58 Child adopted out of family. | VA | [80 FR 48451, Aug. 13, 2015] | (a) Except as provided in paragraph (b) of this section, a child of a veteran adopted out of the family of the veteran either prior or subsequent to the veteran's death is nevertheless a child within the meaning of that term as defined by § 3.57 and is eligible for benefits payable under all laws administered by the Department of Veterans Affairs. (b) A child of a veteran adopted out of the family of the veteran is not a child within the meaning of § 3.57 for purposes of any benefits provided under 38 U.S.C. 1115, Additional compensation for dependents. Child. See § 3.57. Veteran's benefits not apportionable. See § 3.458. | ||||
| 38:38:1.0.1.1.4.1.58.44 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.59 Parent. | VA | [26 FR 1568, Feb. 24, 1961, as amended at 44 FR 45935, Aug. 6, 1979] | (a) The term parent means a natural mother or father (including the mother of an illegitimate child or the father of an illegitimate child if the usual family relationship existed), mother or father through adoption, or a person who for a period of not less than 1 year stood in the relationship of a parent to a veteran at any time before his or her entry into active service. (b) Foster relationship must have begun prior to the veteran's 21st birthday. Not more than one father and one mother, as defined, will be recognized in any case. If two persons stood in the relationship of father or mother for 1 year or more, the person who last stood in such relationship before the veteran's last entry into active service will be recognized as the parent. | ||||
| 38:38:1.0.1.1.4.1.58.45 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.60 Definition of “living with”. | VA | [44 FR 45935, Aug. 6, 1979] | For the purposes of determining entitlement to pension under 38 U.S.C. 1521, a person shall be considered as living with his or her spouse even though they reside apart unless they are estranged. | ||||
| 38:38:1.0.1.1.4.1.59.46 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.100 Delegations of authority. | VA | [29 FR 7547, June 12, 1964, as amended at 31 FR 14455, Nov. 10, 1966; 37 FR 10442, May 23, 1972; 53 FR 3207, Feb. 4, 1988; 60 FR 18355, Apr. 11, 1995; 61 FR 20727, May 8, 1996; 78 FR 2100, Jan. 13, 2014] | (a) Authority is delegated to the Under Secretary for Benefits and to supervisory or adjudicative personnel within the jurisdiction of the Veterans Benefits Administration designated by the Under Secretary to make findings and decisions under the applicable laws, regulations, precedents, and instructions, as to entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of the Compensation Service or the Pension and Fiduciary Service. (b) Authority is delegated to the Director, Compensation Service, and the Director, Pension and Fiduciary Service, and to personnel of each service designated by its Director to determine whether a claimant or payee has forfeited the right to gratuitious benefits or to remit a prior forfeiture pursuant to the provisions of 38 U.S.C. 6103 or 6104. See § 3.905. | ||||
| 38:38:1.0.1.1.4.1.59.47 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.102 Reasonable doubt. | VA | [50 FR 34458, Aug. 26, 1985, as amended at 66 FR 45630, Aug. 29, 2001] | It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. | ||||
| 38:38:1.0.1.1.4.1.59.48 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.103 Procedural due process and other rights. | VA | [55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001; 76 FR 52574, Aug. 23, 2011; 77 FR 23129, Apr. 18, 2012; 84 FR 166, Jan. 18, 2019; 88 FR 86061, Dec. 12, 2023] | (a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. (b) The right to notice — (1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice will clearly set forth the elements described under paragraph (f) of this section, the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section, the right of representation, and the right, as well as the necessary procedures and time limits to initiate a higher-level review, supplemental claim, or appeal to the Board of Veterans' Appeals. (2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken. (3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances: (i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary p… | ||||
| 38:38:1.0.1.1.4.1.59.49 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.104 Binding nature of decisions. | VA | [29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. 18, 2019] | (a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans' Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600. (b) Binding administrative determinations. Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error. (c) Favorable findings. Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans' Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review. | ||||
| 38:38:1.0.1.1.4.1.59.50 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.105 Revision of decisions. | VA | [26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39 FR 17222, May 14, 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65846, Dec. 19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR 51278, Sept. 30, 1997; 66 FR 21874, May 2, 2001; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 167, Jan. 18, 2019] | The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge (§ 3.500(b)); there is a change in law or a Department of Veterans Affairs issue, or a change in interpretation of law or a Department of Veterans Affairs issue (§ 3.114); or the evidence establishes that service connection was clearly illegal. The provisions with respect to the date of discontinuance of benefits are applicable to running awards. Where the award has been suspended, and it is determined that no additional payments are in order, the award will be discontinued effective date of last payment. (a)(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. (i) Definition of clear and unmistakable error. A clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied. (ii) Effective date of reversed or revised decisions. For the purpose of authorizing benefits, the rating or other adjudicat… | ||||
| 38:38:1.0.1.1.4.1.59.51 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.106 Renouncement. | VA | [26 FR 1569, Feb. 24, 1961, as amended at 37 FR 5384, Mar. 15, 1972; 39 FR 17222, May 14, 1974; 60 FR 18355, Apr. 11, 1995; 62 FR 5529, Feb. 6, 1997] | (a) Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by the Department of Veterans Affairs may renounce his or her right to that benefit but may not renounce less than all of the component items which together comprise the total amount of the benefit to which the person is entitled nor any fixed monetary amounts less than the full amount of entitlement. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement in the Department of Veterans Affairs, payment of such benefits and the right thereto will be terminated, and such person will be denied any and all rights thereto from such filing. (b) The renouncement will not preclude the person from filing a new application for pension, compensation, or dependency and indemnity compensation at any future date. Such new application will be treated as an original application, and no payments will be made thereon for any period before the date such new application is received in the Department of Veterans Affairs. (c) Notwithstanding the provisions of paragraph (b) of this section, if a new application for pension or parents' dependency and indemnity compensation is filed within one year after the date that the Department of Veterans Affairs receives a renouncement of that benefit, such application shall not be treated as an original application and benefits will be payable as if the renouncement had not occurred. (d) The renouncement of dependency and indemnity compensation by one beneficiary will not serve to increase the rate payable to any other beneficiary in the same class. (e) The renouncement of dependency and indemnity compensation by a surviving spouse will not serve to vest title to this benefit in children under the age of 18 years or to increase the rate payable to a child or children over the age of 18 years. | ||||
| 38:38:1.0.1.1.4.1.59.52 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.107 Awards where not all dependents apply. | VA | [29 FR 9564, July 15, 1964] | Except as provided in § 3.251(a)(4), in any case where claim has not been filed by or on behalf of all dependents who may be entitled, the awards (original or amended) for those dependents who have filed claim will be made for all periods at the rates and in the same manner as though there were no other dependents. However, if the file reflects the existence of other dependents who have not filed claim and there is potential entitlement to benefits for a period prior to the date of filing claim, the award to a person who has filed claim will be made at the rate which would be payable if all dependents were receiving benefits. If at the expiration of the period allowed, claims have not been filed for such dependents, the full rate will be authorized for the first payee. | ||||
| 38:38:1.0.1.1.4.1.59.53 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.108 State Department as agent of Department of Veterans Affairs. | VA | [26 FR 1569, Feb. 24, 1961, as amended at 79 FR 57695, Sept. 25, 2014] | Diplomatic and consular officers of the Department of State are authorized to act as agents of the Department of Veterans Affairs and therefore a complete claim as set forth in § 3.160(a) or an intent to file a claim as set forth in § 3.155(b) or evidence submitted in support of a claim filed in a foreign country will be considered as filed in the Department of Veterans Affairs as of the date of receipt by the State Department representative. Evidence from foreign countries. See § 3.202. | ||||
| 38:38:1.0.1.1.4.1.59.54 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.109 Time limit. | VA | [26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990; 79 FR 57695, Sept. 25, 2014] | (a) Notice of time limit for filing evidence. (1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person who has filed claim is not considered evidence. (2) The provisions of this paragraph are applicable to original initial applications, to applications for increased benefits by reason of increased disability, age, or the existence of a dependent, and to applications for reopening or resumption of payments. If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included. (b) Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues. | ||||
| 38:38:1.0.1.1.4.1.59.55 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.110 Computation of time limit. | VA | [55 FR 13529, Apr. 11, 1990, as amended at 58 FR 32443, June 10, 1993; 84 FR 168, Jan. 18, 2019] | (a) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday. Where the time limit would expire on a Saturday, Sunday, or holiday, the next succeeding workday will be included in the computation. (b) The first day of the specified period referred to in paragraph (a) of this section shall be the date of mailing of notification to the claimant or beneficiary of the action required and the time limit therefor. The date of the letter of notification shall be considered the date of mailing for purposes of computing time limits. As to appeals, see §§ 19.52, 20.203, and 20.110 of this chapter. | ||||
| 38:38:1.0.1.1.4.1.59.56 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.111 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.59.57 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.112 Fractions of one cent. | VA | [26 FR 1570, Feb. 24, 1961] | In all cases where the amount to be paid under any award involves a fraction of a cent, the fractional part will be excluded. | ||||
| 38:38:1.0.1.1.4.1.59.58 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.114 Change of law or Department of Veterans Affairs issue. | VA | [27 FR 11886, Dec. 1, 1962, as amended at 55 FR 13529, Apr. 11, 1990; 62 FR 17706, Apr. 11, 1997; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4247, Jan. 25, 2011; 84 FR 168, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019] | (a) Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and supplemental claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date o… | ||||
| 38:38:1.0.1.1.4.1.59.59 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.115 Access to financial records. | VA | [58 FR 32445, June 10, 1993] | (a) The Secretary of Veterans Affairs may request from a financial institution the names and addresses of its customers. Each such request, however, shall include a certification that the information is necessary for the proper administration of benefits programs under the laws administered by the Secretary, and cannot be obtained by a reasonable search of records and information of the Department of Veterans Affairs. (b) Information received pursuant to a request referred to in paragraph (a) of this section shall not be used for any purpose other than the administration of benefits programs under the laws administered by the Secretary if the disclosure of that information would otherwise be prohibited by any provision of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 through 3422). | ||||
| 38:38:1.0.1.1.4.1.60.60 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.150 Forms to be furnished. | VA | [26 FR 1570, Feb. 14, 1961, as amended at 30 FR 133, Jan. 7, 1965; 79 FR 57695, Sept. 25, 2014] | (a) Upon request made in person or in writing by any person applying for benefits under the laws administered by the Department of Veterans Affairs, the appropriate application form will be furnished. (b) Upon receipt of notice of death of a veteran, the appropriate application form will be forwarded for execution by or on behalf of any dependent who has apparent entitlement to pension, compensation, or dependency and indemnity compensation. If it is not indicated that any person would be entitled to such benefits, but there is payable an accrued benefit not paid during the veteran's lifetime, the appropriate application form will be forwarded to the preferred dependent. Notice of the time limit will be included in letters forwarding applications for benefits. Extension of time limit. See § 3.109(b). | ||||
| 38:38:1.0.1.1.4.1.60.61 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.151 Claims for disability benefits. | VA | [50 FR 25981, June 24, 1985, as amended at 79 FR 57695, Sept. 25, 2014; 84 FR 168, Jan. 18, 2019] | (a) General. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. 5101(a)). A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. (See scope of claim, § 3.155(d)(2); complete claim, § 3.160(a); supplemental claims, § 3.2501(b)). (b) Retroactive disability pension claims. Where disability pension entitlement is established based on a claim received by VA on or after October 1, 1984, the pension award may not be effective prior to the date of receipt of the pension claim unless the veteran specifically claims entitlement to retroactive benefits. The claim for retroactivity may be filed separately or included in the claim for disability pension, but it must be received by VA within one year from the date on which the veteran became permanently and totally disabled. Additional requirements for entitlement to a retroactive pension award are contained in § 3.400(b) of this part. (c) Issues within a claim. (1) To the extent that a complete claim application encompasses a request for more than one determination of entitlement, each specific entitlement will be adjudicated and is considered a separate issue for purposes of the review options prescribed in § 3.2500. A single decision by an agency of original jurisdiction may adjudicate multiple issues in this respect, whether expressly claimed or determined by VA to be reasonably within the scope of the application as prescribed in § 3.155(d)(2). VA will issue a decision that addresses each such identified issue within a claim. Upon receipt of notice of a decision, a claimant may elect any of the applicable review options prescribed in § 3.2500 for each issue adjudicated. (2) With respect to service-connected disability compensation, an issue… | ||||
| 38:38:1.0.1.1.4.1.60.62 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.152 Claims for death benefits. | VA | [50 FR 25981, June 24, 1985, as amended at 71 FR 44918, Aug. 8, 2006; 91 FR 2713, Jan. 22, 2026] | (a) A specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by § 3.153) must be filed in order for death benefits to be paid to any individual under the laws administered by VA. (See § 3.400(c) concerning effective dates of awards.) (b)(1)(i) A claim by a surviving spouse or child for compensation or dependency and indemnity compensation will also be considered to be a claim for survivors pension and accrued benefits, and a claim by a surviving spouse or child for survivors pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. (ii)(A) Except as provided in paragraph (b)(1)(ii)(B) of this section, an award of dependency and indemnity compensation to a surviving spouse or child will result in the denial of survivors pension. (B) With respect to a claim by a surviving spouse, if the evidence establishes that, but for the surviving spouse's eligibility for dependency and indemnity compensation, the surviving spouse would be eligible to receive survivors pension at the rate provided for in 38 U.S.C. 5503(d), survivors pension will be paid instead of such compensation. (2) A claim by a parent for compensation or dependency and indemnity compensation will also be considered to be a claim for accrued benefits. (c)(1) Where a child's entitlement to dependency and indemnity compensation arises by reason of termination of a surviving spouse's right to dependency and indemnity compensation or by reason of attaining the age of 18 years, a claim will be required. (38 U.S.C. 5110(e).) (See paragraph (c)(4) of this section.) Where the award to the surviving spouse is terminated by reason of her or his death, a claim for the child will be considered a claim for any accrued benefits which may be payable. (2) A claim filed by a surviving spouse who does not have entitlement will be accepted as a claim for a child or children in her or his custody named in the claim. (3) Where a claim o… | ||||
| 38:38:1.0.1.1.4.1.60.63 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.153 Claims filed with Social Security. | VA | [26 FR 1570, Feb. 24, 1961, as amended at 71 FR 44918, Aug. 8, 2006] | An application on a form jointly prescribed by the Secretary and the Commissioner of Social Security filed with the Social Security Administration on or after January 1, 1957, will be considered a claim for death benefits, and to have been received in the Department of Veterans Affairs as of the date of receipt in Social Security Administration. The receipt of such an application (or copy thereof) by the Department of Veterans Affairs will not preclude a request for any necessary evidence. | ||||
| 38:38:1.0.1.1.4.1.60.64 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.154 Injury due to hospital treatment, etc. | VA | [79 FR 57695, Sept. 25, 2014] | Claimants must file a complete claim on the appropriate application form prescribed by the Secretary when applying for benefits under 38 U.S.C. 1151 and 38 CFR 3.361. See §§ 3.151, 3.160(a), and 3.400(i) concerning effective dates of awards; see § 3.155(b) regarding intent to file the appropriate application form. Effective Dates. See § 3.400(i). Disability or death due to hospitalization, etc. See §§ 3.358, 3.361 and 3.800. | ||||
| 38:38:1.0.1.1.4.1.60.65 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.155 How to file a claim. | VA | [79 FR 57695, Sept. 25, 2014, as amended at 84 FR 168, Jan. 18, 2019] | The following paragraphs describe the manner and methods in which a claim can be initiated and filed. The provisions of this section are applicable to all claims governed by part 3, with the exception that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims. (a) Request for an application for benefits. A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not of full age or capacity, who indicates a desire to file for benefits under the laws administered by VA, by a communication or action, to include an electronic mail that is transmitted through VA's electronic portal or otherwise, that does not meet the standards of a complete claim is considered a request for an application form for benefits under § 3.150(a). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. (b) Intent to file a claim. A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. (1) An intent to file a claim can be submitted in one of the following three ways: (i) Saved electro… | ||||
| 38:38:1.0.1.1.4.1.60.66 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.156 New evidence. | VA | [27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006; 84 FR 169, Jan. 18, 2019; 84 FR 4336, Feb. 15, 2019; 86 FR 15414, Mar. 23, 2021] | New evidence is evidence not previously part of the actual record before agency adjudicators. (a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (b) Pending legacy claims not under the modernized review system. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by… | ||||
| 38:38:1.0.1.1.4.1.60.67 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.158 Abandoned claims. | VA | [27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963; 52 FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 84 FR 169, Jan. 18, 2019] | (a) General. Except as provided in § 3.652, where evidence requested in connection with an initial claim or supplemental claim or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence shall commence not earlier than the date of filing the new claim. (b) Department of Veterans Affairs examinations. Where the veteran fails without adequate reason to respond to an order to report for Department of Veterans Affairs examination within 1 year from the date of request and payments have been discontinued, the claim for such benefits will be considered abandoned. (c) Disappearance. Where payments of pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 have not been made or have been discontinued because a payee's present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address. Periodic certification of continued eligibility. See § 3.652. Failure to report for VA examination. See § 3.655. Disappearance of veteran. See § 3.656. | ||||
| 38:38:1.0.1.1.4.1.60.68 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.159 Department of Veterans Affairs assistance in developing claims. | VA | [66 FR 45630, Aug. 29, 2001, as amended at 73 FR 23356, Apr. 30, 2008; 84 FR 169, Jan. 18, 2019; 86 FR 42732, Aug. 5, 2021; 87 FR 26125, May 3, 2022] | (a) Definitions. For purposes of this section, the following definitions apply: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. (3) Substantially complete application means an application containing: (i) The claimant's name; (ii) His or her relationship to the veteran, if applicable; (iii) Sufficient service information for VA to verify the claimed service, if applicable; (iv) The benefit sought and any medical condition(s) on which it is based; (v) The claimant's signature; and (vi) In claims for nonservice-connected disability or survivors pension and parents' dependency and indemnity compensation, a statement of income; (vii) In supplemental claims, identification or inclusion of potentially new evidence (see § 3.2501); (viii) For higher-level reviews, identification of the date of the decision for which review is sought. (4) For purposes of paragraph (c)(4)(i) of this section, event means one or more incidents associated with places, types, and circumstances of service giving rise to disability. (5) Information means non-evidentiary facts, such as the claimant's Social Security number or address; the name and military unit of a person who served with the veteran; or the name and address of a medical care provider who may have evidence pertinent to the claim. (b) VA's duty to notify claimants of necessa… | ||||
| 38:38:1.0.1.1.4.1.60.69 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.160 Status of claims. | VA | [27 FR 11887, Dec. 1, 1962, as amended at 31 FR 12056, Sept. 15, 1966; 55 FR 20148, May 15, 1990; 58 FR 32445, June 10, 1993; 79 FR 57696, Sept. 25, 2014; 84 FR 170, Jan. 18, 2019] | (a) Complete claim. A submission of an application form prescribed by the Secretary, whether paper or electronic, that meets the following requirements: (1) A complete claim must provide the name of the claimant; the relationship to the veteran, if applicable; and sufficient information for VA to verify the claimed service, if applicable. (2) A complete claim must be signed by the claimant or a person legally authorized to sign for the claimant. (3) A complete claim must identify the benefit sought. (4) A description of any symptom(s) or medical condition(s) on which the benefit is based must be provided to the extent the form prescribed by the Secretary so requires. (5) For nonservice-connected disability or survivors pension and parents' dependency and indemnity compensation claims, a statement of income must be provided to the extent the form prescribed by the Secretary so requires; and (6) For supplemental claims, potentially new evidence must be identified or included. (b) Original claim. The initial complete claim for one or more benefits on an application form prescribed by the Secretary. (c) Pending claim. A claim which has not been finally adjudicated. (d) Finally adjudicated claim. A claim that is adjudicated by the Department of Veterans Affairs as either allowed or disallowed is considered finally adjudicated when: (1) For legacy claims not subject to the modernized review system, whichever of the following occurs first: (i) The expiration of the period in which to file a Notice of Disagreement, pursuant to the provisions of § 19.52(a) or § 20.502(a) of this chapter, as applicable; or (ii) Disposition on appellate review. (2) For claims under the modernized review system, the expiration of the period in which to file a review option available under § 3.2500 or disposition on judicial review where no such review option is available. (e) Reopened claims prior to effective date of modernized review system. An application for a benefit received prior to the effective date provided … | ||||
| 38:38:1.0.1.1.4.1.60.70 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.161 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.61.71 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.200 Testimony certified or under oath. | VA | [40 FR 36329, Aug. 20, 1975] | (a) All oral testimony presented by claimants and witnesses on their behalf before any rating or authorization body will be under oath or affirmation. (See § 3.103(c).) (b) All written testimony submitted by the claimant or in his or her behalf for the purpose of establishing a claim for service connection will be certified or under oath or affirmation. This includes records, examination reports, and transcripts material to the issue received by the Department of Veterans Affairs at the instance of the claimant or in his or her behalf or requested by the Department of Veterans Affairs from State, county, municipal, recognized private institutions, and contract hospitals. | ||||
| 38:38:1.0.1.1.4.1.61.72 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.201 Exchange of evidence; Social Security and Department of Veterans Affairs. | VA | [26 FR 1571, Feb. 24, 1961, as amended at 58 FR 25562, Apr. 27, 1993] | (a) A claimant for dependency and indemnity compensation may elect to furnish to the Department of Veterans Affairs in support of that claim copies of evidence which was previously furnished to the Social Security Administration or to have the Department of Veterans Affairs obtain such evidence from the Social Security Administration. For the purpose of determining the earliest effective date for payment of dependency and indemnity compensation, such evidence will be deemed to have been received by the Department of Veterans Affairs on the date it was received by the Social Security Administration. (b) A copy or certification of evidence filed in the Department of Veterans Affairs in support of a claim for dependency and indemnity compensation will be furnished the Social Security Administration upon request from the agency. Claims filed with Social Security. See § 3.153. | ||||
| 38:38:1.0.1.1.4.1.61.73 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.202 Evidence from foreign countries. | VA | [26 FR 1571, Feb. 24, 1961, as amended at 40 FR 36329, Aug. 20, 1975; 52 FR 19348, May 22, 1987; 59 FR 46338, Sept. 8, 1994] | (a) Except as provided in paragraph (b) of this section, where an affidavit or other document is required to be executed under oath before an official in a foreign country, the signature of that official must be authenticated by a United States Consular Officer in that jurisdiction or by the State Department. Where the United States has no consular representative in a foreign country, such authentication may be made as follows: (1) By a consular agent of a friendly government whereupon the signature and seal of the official of the friendly government may be authenticated by the State Department; or (2) By the nearest American consul who will attach a certificate showing the result of the investigation concerning its authenticity. (b) Authentication will not be required: (1) On documents approved by the Deputy Minister of Veterans Affairs, Department of Veterans Affairs, Ottawa, Canada: or (2) When it is indicated that the attesting officer is authorized to administer oaths for general purposes and the document bears his or her signature and seal; or (3) When the document is executed before a Department of Veterans Affairs employee authorized to administer oaths; or (4) When a copy of a public or church record from any foreign country purports to establish birth, adoption, marriage, annulment, divorce, or death, provided it bears the signature and seal of the custodian of such record and there is no conflicting evidence in the file which would serve to create doubt as to the correctness of the record; or (5) When a copy of the public or church record from one of the countries comprising the United Kingdom, namely: England, Scotland, Wales, or Northern Ireland, purports to establish birth, marriage, or death, provided it bears the signature or seal or stamp of the custodian of such record and there is no evidence which would serve to create doubt as to the correctness of the records; or (6) When affidavits prepared in the Republic of the Philippines are certified by a Department of Veterans Affairs represen… | ||||
| 38:38:1.0.1.1.4.1.61.74 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.203 Service records as evidence of service and character of discharge. | VA | [45 FR 72654, Nov. 3, 1980, as amended at 46 FR 51246, Oct. 19, 1981; 58 FR 37857, July 14, 1993; 58 FR 42623, Aug. 10, 1993; 66 FR 19858, Apr. 18, 2001; 86 FR 57584, Oct. 18, 2021] | (a) Evidence submitted by a claimant. For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation or burial benefits the Department of Veterans Affairs may accept evidence of service submitted by a claimant (or sent directly to the Department of Veterans Affairs by the service department), such as a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) The evidence is a document issued by the service department. A copy of an original document is acceptable if: (i) The copy was issued by the service department; or (ii) The copy was issued by a public custodian of records who certifies that it is a true and exact copy of the document in the custodian's custody; or (iii) The copy was submitted by an accredited agent, attorney or service organization representative who has successfully completed VA-prescribed training on military records, and who certifies that it is a true and exact copy of either an original document or of a copy issued by the service department or a public custodian of records; or (iv) The Department of Veterans Affairs is satisfied that an otherwise uncertified copy submitted by the claimant or by the claimant's representative is free from alteration; and (2) The document contains needed information as to length, time and character of service; and (3) In the opinion of the Department of Veterans Affairs the document is genuine and the information contained in it is accurate. (b) Additional requirements for pension claimants. In addition to meeting the requirements of paragraph (a) of this section, a document submitted to establish a creditable period of wartime service for pension entitlement may be accepted without verification if the document (or other evidence of record) shows: (1) Service of 4 months or more; or (2) Discharge for disability incurred in line of duty; or … | ||||
| 38:38:1.0.1.1.4.1.61.75 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.204 Evidence of dependents and age. | VA | [26 FR 1572, Feb. 24, 1961, as amended at 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 59 FR 46338, Sept. 8, 1994; 61 FR 56626, Nov. 4, 1996; 66 FR 56614, Nov. 9, 2001] | (a)(1) Except as provided in paragraph (a)(2) of this section, VA will accept, for the purpose of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and, where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the social security number of any dependent on whose behalf he or she is seeking benefits (see § 3.216). (2) VA shall require the types of evidence indicated in §§ 3.205 through 3.211 where: the claimant does not reside within a state; the claimant's statement on its face raises a question of its validity; the claimant's statement conflicts with other evidence of record; or, there is a reasonable indication, in the claimant's statement or otherwise, of fraud or misrepresentation of the relationship in question. (b) Marriage or birth. The classes of evidence to be furnished for the purpose of establishing marriage, dissolution of marriage, age, relationship, or death, if required under the provisions of paragraph (a)(2), are indicated in §§ 3.205 through 3.211 in the order of preference. Failure to furnish the higher class, however, does not preclude the acceptance of a lower class if the evidence furnished is sufficient to prove the point involved. (c) Acceptability of photocopies. Photocopies of documents necessary to establish birth, death, marriage or relationship under the provisions of §§ 3.205 through 3.215 of this part are acceptable as evidence if the Department of Veterans Affairs is satisfied that the copies are genuine and free from alteration. Otherwise, VA may request a copy of the document certified over the signature and official seal of the person having custody of such record. | ||||
| 38:38:1.0.1.1.4.1.61.76 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.205 Marriage. | VA | [26 FR 1572, Feb. 24, 1961, as amended at 27 FR 6281, July 3, 1962; 36 FR 20946, Nov. 2, 1971; 40 FR 53581, Nov. 19, 1975; 45 FR 72655, Nov. 3, 1980; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 58 FR 37857, July 14, 1993; 59 FR 46338, Sept. 8, 1994; 62 FR 5529, Feb. 6, 1997] | (a) Proof of marriage. Marriage is established by one of the following types of evidence: (1) Copy or abstract of the public record of marriage, or a copy of the church record of marriage, containing sufficient data to identify the parties, the date and place of marriage, and the number of prior marriages if shown on the official record. (2) Official report from service department as to marriage which occurred while the veteran was in service. (3) The affidavit of the clergyman or magistrate who officiated. (4) The original certificate of marriage, if the Department of Veterans Affairs is satisfied that it is genuine and free from alteration. (5) The affidavits or certified statements of two or more eyewitnesses to the ceremony. (6) In jurisdictions where marriages other than by ceremony are recognized the affidavits or certified statements of one or both of the parties to the marriage, if living, setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the periods of cohabitation, places of residences, whether the parties held themselves out as married, and whether they were generally accepted as such in the communities in which they lived. (7) Any other secondary evidence which reasonably supports a belief by the Adjudicating activity that a valid marriage actually occurred. (b) Valid marriage. In the absence of conflicting information, proof of marriage which meets the requirements of paragraph (a) of this section together with the claimant's certified statement concerning the date, place and circumstances of dissolution of any prior … | ||||
| 38:38:1.0.1.1.4.1.61.77 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.206 Divorce. | VA | [27 FR 6281, July 3, 1962, as amended at 35 FR 16831, Oct. 31, 1970; 40 FR 53581, Nov. 19, 1975; 52 FR 19349, May 22, 1987] | The validity of a divorce decree regular on its face, will be questioned by the Department of Veterans Affairs only when such validity is put in issue by a party thereto or a person whose interest in a claim for Department of Veterans Affairs benefits would be affected thereby. In cases where recognition of the decree is thus brought into question: (a) Where the issue is whether the veteran is single or married (dissolution of a subsisting marriage), there must be a bona fide domicile in addition to the standards of the granting jurisdiction respecting validity of divorce; (b) Where the issue is the validity of marriage to a veteran following a divorce, the matter of recognition of the divorce by the Department of Veterans Affairs (including any question of bona fide domicile) will be determined according to the laws of the jurisdictions specified in § 3.1(j). (c) Where a foreign divorce has been granted the residents of a State whose laws consider such decrees to be valid, it will thereafter be considered as valid under the laws of the jurisdictions specified in § 3.1(j) in the absence of a determination to the contrary by a court of last resort in those jurisdictions. Evidence of dependents and age. See § 3.204. | ||||
| 38:38:1.0.1.1.4.1.61.78 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.207 Void or annulled marriage. | VA | [28 FR 2904, Mar. 3, 1963, as amended at 40 FR 53581, Nov. 19, 1975; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] | Proof that a marriage was void or has been annulled should consist of: (a) Void. A certified statement from the claimant setting forth the circumstances which rendered the marriage void, together with such other evidence as may be required for a determination. (b) Annulled. A copy or abstract of the decree of annulment. A decree regular on its face will be accepted unless there is reason to question the basic authority of the court to render annulment decrees or there is evidence indicating that the annulment may have been obtained through fraud by either party or by collusion. Effective dates, void or annulled marriage. See § 3.400 (u) and (v). Evidence of dependents and age. See § 3.204. | ||||
| 38:38:1.0.1.1.4.1.61.79 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.208 Claims based on attained age. | VA | [40 FR 53581, Nov. 19, 1975, as amended at 52 FR 19349, May 22, 1987] | In claims for pension where the age of the veteran or surviving spouse is material, the statements of age will be accepted where they are in agreement with other statements in the record as to age. However, where there is a variance in such records, the youngest age will be accepted subject to the submission of evidence as outlined in § 3.209. Evidence of dependents and age. See § 3.204. | ||||
| 38:38:1.0.1.1.4.1.61.80 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.209 Birth. | VA | [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 40 FR 53581, Nov. 19, 1975; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] | Age or relationship is established by one of the following types of evidence. If the evidence submitted for proof of age or relationship indicates a difference in the name of the person as shown by other records, the discrepancy is to be reconciled by an affidavit or certified statement identifying the person having the changed name as the person whose name appears in the evidence of age or relationship. (a) A copy or abstract of the public record of birth. Such a record established more than 4 years after the birth will be accepted as proof of age or relationship if, it is not inconsistent with material of record with the Department of Veterans Affairs, or if it shows on its face that it is based upon evidence which would be acceptable under this section. (b) A copy of the church record of baptism. Such a record of baptism performed more than 4 years after birth will not be accepted as proof of age or relationship unless it is consistent with material of record with the Department of Veterans Affairs, which will include at least one reference to age or relationship made at a time when such reference was not essential to establishing entitlement to the benefit claimed. (c) Official report from the service department as to birth which occurred while the veteran was in service. (d) Affidavit or a certified statement of the physician or midwife in attendance at birth. (e) Copy of Bible or other family record certified to by a notary public or other officer with authority to administer oaths, who should state in what year the Bible or other book in which the record appears was printed, whether the record bears any erasures or other marks of alteration, and whether from the appearance of the writing he or she believes the entries to have been made at the time purported. (f) Affidavits or certified statements of two or more persons, preferably disinterested, who will state their ages, showing the name, date, and place of birth of the person whose age or relationship is being established, and that to their own kno… | ||||
| 38:38:1.0.1.1.4.1.61.81 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.210 Child's relationship. | VA | [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 28 FR 2959, Mar. 26, 1963; 38 FR 871, Jan. 5, 1973; 47 FR 28096, June 29, 1982; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994; 91 FR 905, Jan. 9, 2026] | (a) Legitimate child. Where it is necessary to determine the legitimacy of a child, evidence will be required to establish the legality of the marriage of the mother of the child to the veteran or to show that the child is otherwise legitimate by State laws together with evidence of birth as outlined in § 3.209. Where the legitimacy of a child is not a factor, evidence to establish legitimacy will not be required: Provided, That, evidence is on file which meets the requirements of paragraph (b) of this section sufficient to warrant recognition of the relationship of the child without regard to legitimacy. (b) Illegitimate child. As to the mother of an illegitimate child, proof of birth is all that is required. As to the father, the sufficiency of evidence will be determined in accordance with the facts in the individual case. Proof of such relationship will consist of: (1) An acknowledgment in writing signed by him; or (2) Evidence that he has been identified as the child's father by a judicial decree ordering him to contribute to the child's support or for other purposes; or (3) Any other secondary evidence which reasonably supports a finding of relationship, as determined by an official authorized to approve such findings, such as: (i) A copy of the public record of birth or church record of baptism, showing that the veteran was the informant and was named as parent of the child; or (ii) Statements of persons who know that the veteran accepted the child as his; or (iii) Information obtained from service department or public records, such as school or welfare agencies, which shows that with his knowledge the veteran was named as the father of the child. (c) Adopted child. Except as provided in paragraph (c)(1) of this section evidence of relationship will include a copy of the decree of adoption or a copy of the adoptive placement agreement and such other evidence as may be necessary. (1) In jurisdictions where petition must be made to the court for release of adoption documents or information, … | ||||
| 38:38:1.0.1.1.4.1.61.82 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.211 Death. | VA | [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987; 59 FR 46338, Sept. 8, 1994] | Death should be established by one of the following types of evidence: (a)(1) A copy of the public record of the State or community where death occurred. (2) A copy of a coroner's report of death or a verdict of a coroner's jury of the State or community where death occurred, provided such report or verdict properly identified the deceased. (b) Where death occurs in a hospital or institution under the control of the United States Government: (1) A death certificate signed by a medical officer; or (2) A clinical summary or other report showing fact and date of death signed by a medical officer. (c) An official report of death of a member of a uniformed service from the Secretary of the department concerned where death occurs while deceased was on the retired list, in an inactive duty status, or in the active service. (d) Where death occurs abroad: (1) A United States consular report of death bearing the signature and seal of the United States consul; or (2) A copy of the public record of death authenticated (see § 3.202(b)(4) for exception) by the United States consul or other agency of the State Department; or (3) An official report of death from the head of the department concerned, where the deceased person was, at the time of death, a civilian employee of such department. (e) If the foregoing evidence cannot be furnished, the reason must be stated. The fact of death may then be established by the affidavits of persons who have personal knowledge of the fact of death, have viewed the body of the deceased, know it to be the body of the person whose death is being established, setting forth all the facts and circumstances concerning the death, place, date, time, and cause thereof. (f) If proof of death, as defined in paragraphs (a) through (e) of this section cannot be furnished, a finding of fact of death, where death is otherwise shown by competent evidence, may be made by an official authorized to approve such findings. Where it is indicated that the veteran died under circumstances which precluded… | ||||
| 38:38:1.0.1.1.4.1.61.83 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.212 Unexplained absence for 7 years. | VA | [26 FR 1573, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 52 FR 19349, May 22, 1987] | (a) If satisfactory evidence is produced establishing the fact of the continued and unexplained absence of any individual from his or her home and family for a period of 7 years or more and that a diligent search disclosed no evidence of his or her existence after the date of disappearance, and if evidence as provided in § 3.211 cannot be furnished, the death of such individual as of the expiration of such period may be considered as sufficiently proved. (b) No State law providing for presumption of death will be applicable to claims for benefits under laws administered by the Department of Veterans Affairs and the finding of death will be final and conclusive except where suit is filed for insurance under 38 U.S.C. 1984. (c) In the absence of evidence to the contrary, a finding of death made by another Federal agency will be accepted if the finding meets the requirements of paragraph (a) of this section. Evidence of dependents and age. See § 3.204. | ||||
| 38:38:1.0.1.1.4.1.61.84 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.213 Change of status affecting entitlement. | VA | [26 FR 1574, Feb. 24, 1961, as amended at 27 FR 1899, Feb. 28, 1962; 27 FR 11888, Dec. 1, 1962; 52 FR 19349, May 22, 1987; 61 FR 56626, Nov. 4, 1996] | (a) General. For the purpose of establishing entitlement to a higher rate of pension, compensation, or dependency and indemnity compensation based on the existence of a dependent, VA will require evidence which satisfies the requirements of § 3.204. For the purpose of reducing or discontinuing such benefits, a statement by a claimant or payee setting forth the month and year of change of status which would result in a reduction or discontinuance of benefits to that person will be accepted, in the absence of contradictory information. This includes: (1) Veteran. A statement by the veteran setting forth the month and year of death of a spouse, child, or dependent parent. (2) Surviving spouse. A statement by the surviving spouse or remarried surviving spouse setting forth the month and year of remarriage and any change of name. (An award for a child or children who are otherwise entitled may be made to commence the day following the date of discontinuance of any payments to the surviving spouse.) (3) Child. A statement by the veteran or surviving spouse (where an additional allowance is being paid to the veteran or surviving spouse for a child), or fiduciary, setting forth the month and year of the child's death, marriage, or discontinuance of school attendance. A similar statement by a child who is receiving payments direct will be accepted to establish the child's marriage or the discontinuance of school attendance. Where appropriate, the month and year of discontinuance of school attendance will be required in addition to the month and year of death or marriage of a child. (4) Parent. A statement by a parent setting forth the month and year: (i) Of marriage or remarriage; (ii) When two parents or a parent and spouse ceased living together; (iii) When two parents or a parent and spouse resumed living together following a period of separation; (iv) Of divorce or death of a spouse. (b) Date not reported. If the month and year of the event is not reported, the award will be reduced or discontinue… | ||||
| 38:38:1.0.1.1.4.1.61.85 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.214 Court decisions; unremarried surviving spouses. | VA | [31 FR 2782, Feb. 16, 1966, as amended at 52 FR 19349, May 22, 1987] | Effective July 15, 1958, a decision rendered by a Federal court in an action to which the United States was a party holding that a surviving spouse of a veteran has not remarried will be followed in determining eligibility for pension, compensation or dependency and indemnity compensation. Abandoned claims. See § 3.158. Change in status of dependents. See § 3.651. Dependency, income and estate. See § 3.660. Evidence of dependents and age. See § 3.204. | ||||
| 38:38:1.0.1.1.4.1.61.86 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.215 Termination of marital relationship or conduct. | VA | [57 FR 10426, Mar. 26, 1992, as amended at 58 FR 32445, June 10, 1993] | On or after January 1, 1971, benefits may be resumed to an unmarried surviving spouse upon filing of an application and submission of satisfactory evidence that the surviving spouse has ceased living with another person and holding himself or herself out openly to the public as that person's spouse or that the surviving spouse has terminated a relationship or conduct which had created an inference or presumption of remarriage or related to open or notorious adulterous cohabitation or similar conduct, if the relationship terminated prior to November 1, 1990. Such evidence may consist of, but is not limited to, the surviving spouse's certified statement of the fact. | ||||
| 38:38:1.0.1.1.4.1.61.87 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.216 Mandatory disclosure of social security numbers. | VA | [57 FR 8268, Mar. 9, 1992, as amended at 57 FR 27935, June 23, 1992; 65 FR 35282, June 2, 2000; 67 FR 49586, July 31, 2002; 76 FR 4248, Jan. 25, 2011] | Any person who applies for or receives any compensation or pension benefit as defined in §§ 3.3, 3.4, or 3.5 of this part, or a monetary allowance under 38 U.S.C. chapter 18, shall, as a condition for receipt or continued receipt of benefits, furnish the Department of Veterans Affairs upon request with his or her social security number and the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received. However, no one shall be required to furnish a social security number for any person to whom none has been assigned. Benefits will be terminated if a beneficiary fails to furnish the Department of Veterans Affairs with his or her social security number or the social security number of any dependent or beneficiary on whose behalf, or based upon whom, benefits are sought or received, within 60 days from the date the beneficiary is requested to furnish the social security number. | ||||
| 38:38:1.0.1.1.4.1.61.88 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.217 Submission of statements or information affecting entitlement to benefits. | VA | [66 FR 56614, Nov. 9, 2001] | (a) For purposes of this part, unless specifically provided otherwise, the submission of information or a statement that affects entitlement to benefits by e-mail, facsimile, or other written electronic means, will satisfy a requirement or authorization that the statement or information be submitted in writing. Section 3.217(a) merely concerns the submission of information or a statement in writing. Other requirements specified in this part, such as a requirement to use a specific form, to provide specific information, to provide a signature, or to provide a certified statement, must still be met. (b) For purposes of this part, unless specifically provided otherwise, VA may take action affecting entitlement to benefits based on oral or written information or statements provided to VA by a beneficiary or his or her fiduciary. However, VA may not take action based on oral information or statements unless the VA employee receiving the information meets the following conditions: (1) During the conversation in which the information or statement is provided, the VA employee: (i) Identifies himself or herself as a VA employee who is authorized to receive the information or statement (these are VA employees authorized to take actions under §§ 2.3 or 3.100 of this chapter); (ii) Verifies the identity of the provider as either the beneficiary or his or her fiduciary by obtaining specific information about the beneficiary that can be verified from the beneficiary's VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information; and (iii) Informs the provider that the information or statement will be used for the purpose of calculating benefit amounts; and (2) During or following the conversation in which the information or statement is provided, the VA employee documents in the beneficiary's VA records the specific information or statement provided, the date such information or statement was provided, the identity of the provider, the steps taken… | ||||
| 38:38:1.0.1.1.4.1.63.100 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.270 Applicability of various dependency, income and estate regulations. | VA | [44 FR 45936, Aug. 6, 1979, as amended at 83 FR 47269, Sept. 18, 2018] | (a) Sections 3.250 through 3.263 and 3.278 through 3.279. These sections are applicable to dependency, income and estate determinations needed to determine entitlement or continued entitlement for the following programs: (1) Parents' death compensation. (2) Old-law pension. (3) Section 306 pension. (4) Parents' dependency and indemnity compensation. Citations to title 38 U.S.C. in §§ 3.250 through 3.263 and 3.278 through 3.279 referring to section 306 or old-law pension generally refer to provisions of law in effect on December 31, 1978. (b) Sections 3.271 through 3.279. These sections apply to income and estate determinations of entitlement to the improved disability and survivors pension program which became effective January 1, 1979. | ||||
| 38:38:1.0.1.1.4.1.63.89 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.250 Dependency of parents; compensation. | VA | [28 FR 29, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 49 FR 47004, Nov. 30, 1984; 61 FR 20727, May 8, 1996] | (a) Income —(1) Conclusive dependency. Dependency of a parent (other than one who is residing in a foreign country) will be held to exist where the monthy income does not exceed: (i) $400 for a mother or father not living together; (ii) $660 for a mother and father, or remarried parent and spouse, living together: (iii) $185 for each additional “member of the family” as defined in paragraph (b)(2). (2) Excess income. Where the income exceeds the monthly amounts stated in paragraph (a)(1) of this section dependency will be determined on the facts in the individual case under the principles outlined in paragraph (b) of this section. In such cases, dependency will not be held to exist if it is reasonable that some part of the corpus of the claimant's estate be consumed for his or her maintenance. (3) Foreign residents. There is no conclusive presumption of dependency. Dependency will be determined on the facts in the individual case under the principles outlined in this section. (b) Basic rule. Dependency will be held to exist if the father or mother of the veteran does not have an income sufficient to provide reasonable maintenance for such father or mother and members of his or her family under legal age and for dependent adult members of the family if the dependency of such adult member results from mental or physical incapacity. (1) “Reasonable Maintenance” includes not only housing, food, clothing, and medical care sufficient to sustain life, but such items beyond the bare necessities as well as other requirements reasonably necessary to provide those conveniences and comforts of living suitable to and consistent with the parents' reasonable mode of life. (2) “Member of the family” means a person (other than spouse) including a relative in the ascending as well as descending class, whom the father or mother is under moral or legal obligation to support. In determining whether other members of the family under legal age are factors in necessary expenses of the mother or father, consideration wil… | ||||
| 38:38:1.0.1.1.4.1.63.90 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.251 Income of parents; dependency and indemnity compensation. | VA | [28 FR 29, Jan. 1, 1963, as amended at 31 FR 14455, Nov. 10, 1966; 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 60 FR 18355, Apr. 11, 1995] | (a) Annual income limitations and rates. (1) Dependency and indemnity compensation is not payable to a parent or parents whose annual income exceeds the limitations set forth in 38 U.S.C. 1315 (b), (c), or (d). (2) Where there is only one parent, and the parent has remarried and is living with his or her spouse, dependency and indemnity compensation will be paid under either the formula in 38 U.S.C. 1315(b)(1) or the formula in 38 U.S.C. 1315(d), whichever will provide the greater monthly rate of dependency and indemnity compensation. The total combined annual income of the parent and spouse will be counted. (3) Where the claim is based on service in the Commonwealth Army of the Philippines, or as a guerrilla or as a Philippine Scout under section 14, Pub. L. 190, 79th Congress, the income limitation will be at a rate of $0.50 for each dollar. See § 3.100(b). (4) If the remarriage of a parent has been terminated, or the parent is separated from his or her spouse, the rate of dependency and indemnity compensation for the parent will be that which would be payable if there were one parent alone or two parents not living together, whichever is applicable. (5) Where there are two parents living and only one parent has filed claim, the rate of dependency and indemnity compensation will be that which would be payable if both parents had filed claim. (b) Basic rule. Payments of any kind or from any source will be counted as income unless specifically excluded. Income will be counted for the calendar year in which it is received and total income for the full calendar year will be considered except as provided in § 3.260. | ||||
| 38:38:1.0.1.1.4.1.63.91 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.252 Annual income; pension; Mexican border period and later war periods. | VA | [28 FR 30, Jan. 1, 1963, as amended at 40 FR 16065, Apr. 9, 1975; 41 FR 15411, Apr. 13, 1976; 41 FR 56803, Dec. 30, 1976; 44 FR 45935, Aug. 6, 1979; 61 FR 20727, May 8, 1996; 62 FR 5529, Feb. 6, 1997; 91 FR 905, Jan. 9, 2026] | (a) Annual income limitations; old-law pension. Where the right to old-law pension is payable under section 306(b) of Pub. L. 95-588 (92 Stat. 2497), pension is not payable if the pensioner's annual income exceeds the income limitations prescribed by § 3.26(c). (b) Annual income and net worth limitations; Pub. L. 86-211. Pension is not payable to a veteran, surviving spouse or child whose annual income exceeds the limitations set forth in 38 U.S.C. 1521, 1541 or 1542; or to a veteran, surviving spouse or child if it is reasonable that some part of the claimant's estate be consumed for his or her maintenance. Where a veteran and spouse are living together, the separate income of the spouse will be considered as the veteran's income as provided in § 3.262(b). (c) Basic rule. Payments of any kind or from any source will be counted as income unless specifically excluded. Income will be counted for the calendar year in which it is received and total income for the full calendar year will be considered except as provided in § 3.260. (d) Veteran with a spouse. For the purpose of determining eligibility under paragraph (b) of this section the pension rates provided by 38 U.S.C. 1521(c) may be authorized for a married veteran if he or she is living with or, if estranged, is reasonably contributing to the support of his or her spouse. The determination of “reasonable” contribution will be based on all the circumstances in the case, considering the income and estate of the veteran and the separate income and estate of the spouse. (e) Surviving spouse with a child —(1) Child. The term “child” means a child as defined in § 3.57. Where a veteran's child is born after the veteran dies, the surviving spouse will not be considered a surviving spouse with a child prior to the child's date of birth. (2) Veteran's child not in surviving spouse's custody. Where the veteran was survived by a surviving spouse and by a child, the income increments for a surviving spouse and child apply even though the child is not the … | ||||
| 38:38:1.0.1.1.4.1.63.92 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | §§ 3.253-3.255 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.63.93 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.256 Eligibility reporting requirements. | VA | [63 FR 53595, Oct. 6, 1998, as amended at 66 FR 56614, Nov. 9, 2001; 73 FR 40466, July 15, 2008] | (a) Obligation to report changes in factors affecting entitlement. Any individual who has applied for or receives pension or parents' dependency and indemnity compensation must promptly notify the Secretary of any change affecting entitlement in any of the following: (1) Income; (2) Net worth or corpus of estate; (3) Marital status; (4) Nursing home patient status; (5) School enrollment status of a child 18 years of age or older; or (6) Any other factor that affects entitlement to benefits under the provisions of this part. (b) Eligibility verification reports. (1) For purposes of this section the term eligibility verification report means a form prescribed by the Secretary that is used to request income, net worth (if applicable), dependency status, and any other information necessary to determine or verify entitlement to pension or parents' dependency and indemnity compensation. (2) VA will not require old law or section 306 pensioners to submit eligibility verification reports unless the Secretary determines that doing so is necessary to preserve program integrity. (3) Except for a parent who has attained 72 years of age and has been paid dependency and indemnity compensation during two consecutive calendar years, the Secretary shall require an eligibility verification report from individuals receiving parents' dependency and indemnity compensation under the following circumstances: (i) If the Social Security Administration has not verified the beneficiary's Social Security number and, if the beneficiary is married, his or her spouse's Social Security number. (ii) If there is reason to believe that the beneficiary or, if the spouse's income could affect entitlement, his or her spouse may have received income other than Social Security during the current or previous calendar year; or (iii) If the Secretary determines that an eligibility verification report is necessary to preserve program integrity. (4) An individual who applies for or receives pension or parents' dependency and indemnity compe… | ||||
| 38:38:1.0.1.1.4.1.63.94 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.257 Children; no surviving spouse entitled. | VA | [62 FR 5529, Feb. 6, 1997] | Where pension is not payable to a surviving spouse because his or her annual income exceeds the statutory limitation or because of his or her net worth, payments will be made to or for the child or children as if there were no surviving spouse. | ||||
| 38:38:1.0.1.1.4.1.63.95 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | §§ 3.258-3.259 [Reserved] | VA | ||||||
| 38:38:1.0.1.1.4.1.63.96 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.260 Computation of income. | VA | [28 FR 30, Jan. 1, 1963, as amended at 29 FR 2944, Mar. 4, 1964; 37 FR 6677, Apr. 1, 1972; 40 FR 16066, Apr. 9, 1975] | For entitlement to pension or dependency and indemnity compensation, income will be counted for the calendar year in which it is received. (a) Installments. Income will be determined by the total amount received or anticipated during the calendar year. (b) Deferred determinations. Where there is doubt as to the amount of the anticipated income, pension or dependency and indemnity compensation will be allowed at the lowest appropriate rate or will be withheld, as may be in order, until the end of the calendar year when the total income received during the year may be determined. (c) Proportionate income limitations; excess income. A proportionate income limitation will be established under the conditions set forth in paragraph (d) of this section except where application of a proportionate income limitation would result in payment of a lower rate than would be payable on the basis of income for the full calendar year. (d) Proportionate income limitations; computation. Income limitations will be computed proportionately for the purpose of determining initial entitlement, or for resuming payments on an award which was discontinued for a reason other than excess income or a change in marital or dependency status. A proportionate income limitation will be established for the period from the date of entitlement to the end of that calendar year. The total amount of income received by the claimant during that period will govern the payment of benefits. Income received prior to the date of entitlement will be disregarded. (e) Proportionate income limitations; spouse. In determining whether proportionate computation is applicable to a claim under Pub. L. 86-211 (73 Stat. 432), the total income for the calendar year of entitlement of both veteran and that of the spouse available for use of the veteran will be considered. If a proportionate income limitation is then applicable, it will be applied to both the veteran's and the spouse's income. The spouse's income will not be included, however, where his or her … | ||||
| 38:38:1.0.1.1.4.1.63.97 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.261 Character of income; exclusions and estates. | VA | [28 FR 31, Jan. 1, 1963, as amended at 29 FR 15205, Nov. 11, 1964; 31 FR 15632, Dec. 13, 1966; 33 FR 15286, Oct. 15, 1968; 36 FR 8446, May 6, 1971; 37 FR 6677, Apr. 1, 1972; 37 FR 7092, Apr. 8, 1972; 37 FR 21436, Oct. 11, 1972; 38 FR 872, Jan. 5, 1973; 38 FR 26804, Sept. 26, 1973; 38 FR 28826, Oct. 17, 1973; 40 FR 13305, Mar. 26, 1975; 40 FR 57459, Dec. 10, 1975; 41 FR 17386, Apr. 26, 1976; 42 FR 43834, Aug. 31, 1977; 57 FR 59298, Dec. 15, 1992; 58 FR 12174, Mar. 3, 1993; 58 FR 31909, June 7, 1993; 58 FR 33766, June 21, 1993; 59 FR 37696, July 25, 1994; 60 FR 2522, Jan. 10, 1995; 60 FR 18355, Apr. 11, 1995; 62 FR 51278, Sept. 30, 1997; 67 FR 49586, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; 83 FR 47268, Sept 18, 2018] | The following factors will be considered in determining whether a claimant meets the requirements of §§ 3.250, 3.251 and 3.252 with reference to dependency, income limitations and corpus of estate: (a) Income. 1 The compensation received through a crime victim compensation program will be excluded from income computations unless the total amount of assistance received from all federally funded programs is sufficient to fully compensate the claimant for losses suffered as a result of the crime. (b) Deduction of amounts paid by claimant. (c) Corpus of estate. | ||||
| 38:38:1.0.1.1.4.1.63.98 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.262 Evaluation of income. | VA | [28 FR 32, Jan. 1, 1963] | (a) Total income. All income from sources such as wages, salaries, earnings, bonuses from employers, income from a business or profession or from investments or rents as well as the fair value of personal services, goods or room and board received in lieu thereof will be included. (1) Salary is not determined by “takehome” pay, but includes deductions made under a retirement act or plan and amounts withheld by virtue of income tax laws. (2) The gross income from a business or profession may be reduced by the necessary operating expenses, such as cost of goods sold, or expenditures for rent, taxes, and upkeep. Depreciation is not a deductible expense. The cost of repairs or replacement may be deducted. The value of an increase in stock inventory of a business is not considered income. (3) A loss sustained in operating a business, profession, or farm or from investments may not be deducted from income derived from any other source. (b) Income of spouse. Income of the spouse will be determined under the rules applicable to income of the claimant. (1) Parents. Where the mother and father, or remarried parent and spouse are living together, the total combined income will be considered in determining dependency, or in determining the rate of dependency and indemnity compensation payable to the parent. This rule is equally applicable where both parents have remarried and each is living with his or her spouse. If the remarriage of a parent has been terminated, or the parent is separated from his or her spouse, income of the spouse will be excluded. (2) Veterans. The separate income of the spouse of a disabled veteran who is entitled to pension under laws in effect on June 30, 1960, will not be considered. Where pension is payable under section 306(a) of Pub. L. 95-588, to a veteran who is living with a spouse there will be included as income of the veteran all income of the spouse in excess of whichever is the greater, the amount of the spouse income exclusion specified in section 306(a)(2)(B) of Pub. L. 95… | ||||
| 38:38:1.0.1.1.4.1.63.99 | 38 | Pensions, Bonuses, and Veterans' Relief | I | 3 | PART 3—ADJUDICATION | A | Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation | § 3.263 Corpus of estate; net worth. | VA | [28 FR 33, Jan. 1, 1963, as amended at 39 FR 28527, Aug. 8, 1974; 44 FR 45936, Aug. 6, 1979; 57 FR 59299, Dec. 15, 1992; 58 FR 33767, June 21, 1993; 62 FR 51279, Sept. 30, 1997; 67 FR 49587, July 31, 2002; 68 FR 60852, Oct. 24, 2003; 70 FR 15591, Mar. 28, 2005; 76 FR 4248, Jan. 25, 2011; 83 FR 47269, Sept. 18, 2018] | (a) General. The following rules are for application in determining the corpus of estate of a parent where dependency is a factor under § 3.250, and the net worth of a veteran, surviving spouse, or child where pension is subject to Pub. L. 86-211 (73 Stat. 432) under § 3.252(b). Only the estate of the parent, in claims based on dependency, or the estate of the veteran, surviving spouse, or child-claimant in claims for pension, will be considered. In the absence of contradictory information, the claimant's statement as to ownership and estimate of value will be accepted. (b) Definition. Corpus of estate and net worth mean the market value, less mortgages or other encumbrances, of all real and personal property owned by the claimant except the claimant's dwelling (single-family unit) including a reasonable lot area, and personal effects suitable to and consistent with the claimant's reasonable mode of life. (c) Ownership. See § 3.262(k). (d) Evaluation. In determining whether some part of the claimant's estate should be consumed for his or her maintenance, consideration will be given to the amount of the claimant's income, together with the following factors: whether the property can be readily converted into cash at no substantial sacrifice; ability to dispose of property as limited by community property laws; life expectancy; number of dependents who meet the requirements of § 3.250(b)(2); potential rate of depletion, including unusual medical expenses under the principles outlined in § 3.262(l) for the claimant and his or her dependents. (e) VA will exclude from the corpus of estate or net worth any amount designated by statute as not countable as a resource. See § 3.279. |
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CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
authority TEXT,
source_citation TEXT,
amendment_citations TEXT,
full_text TEXT
);
CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
CREATE INDEX idx_cfr_part ON cfr_sections(part_number);
CREATE INDEX idx_cfr_agency ON cfr_sections(agency);