sion to be discontinued after June 30, 1960, there is protection to pension under laws in effect on June 30, 1960. Protection is afforded in such cases because the claimant was receiving pension on June 30, 1960.

(ii) Change in income or dependency status not promptly reported. Under § 3.253(d) all claimants are required to promptly report changes in income or dependency status. Failure to promptly report requires discontinuance or reduction of pension retroactive to the first of the year. The determination of whether or not a change was promptly reported is one of fact, and in the application of § 3.253(d) a showing that claimant was "without fault" will not serve to prevent creation of the overpayment. Alleviating circumstances are, however, properly for consideration by the Committee on Waivers in determining whether claimant was "without fault" in connection with the resultant overpayment.

(a) Where the receipt of additional income, change in rate of income, or a change in dependency status prior to July 1, 1960, was not reported promptly resulting in receipt of pension on June 30, 1960, and thereby causing pension to be discontinued retroactively to a date prior to June 30, 1960, there is no protection to pension under laws in effect June 30, 1960. However, it is not improper in determining lack of protection to consider whether claimant was "without fault" since the basic rule that protection will be afforded if claimant was receiving pension June 30, 1960, can be negated only where there was a deliberate act of omission or commission on his part. In these cases the determination of fault will be based on the same criteria used under 38 U.S.C. 3102. It follows that if the Committee on Waivers has determined the question of fault in connection with waiver, this determination will also be followed in determining protection. Otherwise the determination will be made by adjudication personnel when affirmative evidence is received to rebut the prima facie showing inherent in the failure to promptly report a change in income or dependency status.

(b) Where the receipt of additional income, change in rate of income, or a change in dependency status after June 30, 1960, was not reported promptly thereby causing pension to be discon

tinued retroactively to a date prior to June 30, 1960, there is protection to pension under laws in effect on June 30, 1960, because the claimant was receiving pension on June 30, 1960. The retroactive discontinuance of pension in such cases affects only the monetary payment and does not preclude protection.

'(2) Protection is accorded in those cases in which a veteran in receipt of pension on June 30, 1960, is found to be not permanently and totally disabled after that date, but who is subsequently again rated as permanently and totally disabled. The protective provision is for application only in those cases in which no election under Public Law 86-211 is made. However, a claimant whose pension was discontinued for any reason prior to July 1, 1960, and who was not entitled on June 30, 1960, but who becomes entitled after that date may be awarded pension only under the provisions of Public Law 86-211. Claimants who elect benefits under Public Law 86211 and are paid under it are subject to all of its provisions.

(3) Waivers of all or part of certain benefits by some claimants had been accepted for pension purposes prior to the calendar year 1960. The annual income questionnaire instructions released in January 1961, required reporting of the claimant's total income, including any such amounts which had been waived but excepting those specifically exempted by law. The date such instructions were received will constitute the beginning of a prompt notice period. Therefore, in such cases the following rules will apply:

(i) If notice of the waived income was received before negotiation of the February 1961 check, it will be considered prompt notice under § 3.253 (d). Discontinuance of pension will be effective date of last payment and there is protection to pension under laws in effect on June 30, 1960, since the claimant was receiving pension on that date.

(ii) If notice of the waived income is not received before negotiation of the February 1961 check, it will not be considered prompt notice under § 3.253 (d). The amount of pension paid from January 1, 1961, to which the payee was not entitled will be considered an overpayment, subject to the waiver provisions. However, there is protection to pension under laws in effect on June 30, 1960, in these cases since the claimant was re

ceiving pension on that date. (Instruction 1-A, Public Law 86-211)

[Paragraph (h) amended, 26 F.R. 10551, Nov. 9, 1961]

§3.1554 Amendment to 38 U.S.C. 511

and 512 permitting Indian War and Spanish-American War veterans to elect to receive pension under the provisions of Public Law 86-211.

(a) Provisions of the law-(1) Veterans of the Indian Wars. Section 1 of Public Law 86-670 amends 38 U.S.C. 511 adding at the end thereof the following:

(c) Any veteran eligible for pension under this section shall, if he so elects, be paid pension at the rates prescribed by section 521 of this title, and under the conditions (other than the service requirements) applicable to pension paid under that section to veterans of World War I. If pension is paid pursuant to such an election, the election shall be irrevocable.

(2) Veterans of the Spanish-American War. Section 2 of Public Law 86-670 amends 38 U.S.C. 512(a) by adding at the end thereof the following:

(3) Any veteran eligible for pension under this subsection shall, if he so elects, be paid pension at the rates prescribed by section 521 of this title, and under the conditions (other than the service requirements) applicable to pension paid under that section to veterans of World War I. If pension is paid pursuant to such an election, the election shall be irrevocable.

(b) Effect of the act. Public Law 86670 permits veterans of the Indian and Spanish-American Wars, who meet the service requirements of 38 U.S.C. 511(b) or 512(a) (2), to elect to be paid pension at the rates and under the conditions provided by Public Law 86-211. All of the substantive provisions of §3.1553 and of the subsequent issues interpretative of chapters 15 and 55, Title 38, United States Code, as amended by Public Law 86-211 as they relate to veterans of World War I, World War II, or the Korean conflict are also for application to elections of veterans of the Indian and Spanish-American Wars except as specifically provided in this section.

(c) Notice to claimants. (1) Veterans of the Indian and Spanish-American Wars who are receiving monthly pension of $135.45 based on the need of regular aid and attendance under 38 U.S.C. 511(a)(2) or 512(a) (1) (B) will be informed of their right to irrevocably elect to receive pension under Public Law 86-211, of the pension payable

thereunder and of the conditions under which each amount is payable.

(2) VA Form 21-6799 (NR), "Election, Net Worth and Income Questionnaire", will also be forwarded with each letter. It is not necessary, however, that the election be made on this form. A statement in writing, signed by the veteran (or fiduciary) will be accepted as a valid election. The election may be deferred and exercised at any future date. Action may not be taken to award pension at the new rate until receipt of an election.

(3) Veterans of these wars who are receiving pension of $101.59 monthly are also eligible to elect under Public Law 86-211. However, since it would not be to their financial advantage to elect they will not be routinely informed of this right. If they subsequently become entitled to pension of $135.45 monthly based on the need of regular aid and attendance, they will be fully informed of the provisions of Public Law 86-211 and of their right of election.

(d) Effective dates. (1) Payment of pension under Public Law 86-211, pursuant to this law, will be effective from the date of receipt of an election or September 1, 1960, the effective date of Public Law 86-670, whichever is later.

(2) Where a veteran states on VA Form 21-6799 (NR) that he is married or has a minor child or children and the amount of pension payable to him under Public Law 86-211 as a veteran without dependents is greater than the amount he is receiving under the old law, he will be awarded pension under Public Law 86-211 as a veteran without dependents. He will be informed of this action and requested to furnish evidence establishing marriage or the existence of the child. If this evidence is received within 1 year from the date of request, he will be awarded the increased pension payable because of his dependents, retroactively from the effective date of the award of pension under Public Law 86211.

(3) If under the same circumstances he would receive less pension under Public Law 86-211 as a veteran without dependents than he is receiving under the old law, action on his election will be deferred. He will be informed of this action and requested to furnish evidence establishing his marriage or the birth of the child. If this evidence is furnished within 1 year from the date of request, he will be awarded pension under Public

Law 86-211, effective the date of receipt of his election or September 1, 1960, the effective date of Public Law 86-670, whichever is the later.

(e) Savings provisions.—(1) Veterans. Veterans who become entitled to pension under 38 U.S.C. 511 or 512(a) on or after September 1, 1960, the effective date of Public Law 86–670, remain eligible to receive and will be awarded such benefits under the applicable cited section of Title 38, United States Code, prior to its amendment by Public Law 86-670, subject to the right of election as provided in paragraph (d).

(2) Widows and children. The election of a veteran does not control nor affect the future rights of his wife and children. If he should predecease them, they, as his survivors, would remain eligible to receive pension under the provisions of sections 534, 535, 536 or 537, of Title 38, United States Code, whichever is applicable.

(3) Finality of election. An election under Public Law 86-670 is final and irrevocable as to the veteran after a pension check received thereunder is negotiated, thereby prohibiting a subsequent reelection of pension under 38 U.S.C. 511 and 512 prior to their amendment by Public Law 86-670. (Instruction 2, Title 38 U.S.C. chapters 15 and 55, Pub. Law 86-211 (Pub. Law 86-670).)

§3.1555 Presumption of service con

nection for multiple sclerosis under 38 U.S.C. 312(4), as amended by Public Law 86-187.

(a) Provisions of the law. The law amends section 312(4) of Title 38, United States Code, by striking out "two" and inserting in lieu thereof "three". Section 312 thus reads in pertinent part:

For the purposes of section 310 of this title, and subject to the provisions of section 313 of this title, in the case of any veteran who served for ninety days or more during a period of war—

ble to both disability and death claims where there is wartime service.

(c) Effective date. The date of enactment of this act was August 25, 1959. No benefit based solely on the liberalizing provisions of this law may be made effective prior to date of enactment.

(1) Pending claims. The effective date of an award as to a claim pending on the date of enactment will be August 25, 1959, if evidence otherwise establishes entitlement on that date. Pending claims will include:

(i) A claim not previously adjudicated. (ii) A previously disallowed claim pending consideration on appeal.

(iii) A previously disallowed claim reopened by the receipt of any claim, evidence or inquiry on which action was pending on date of enactment.

(iv) A previously disallowed claim reopened by the receipt of any claim, evidence or inquiry after date of enactment but within the appeal period.

(2) New claims. All other claims, formal or informal, received on or after August 25, 1959, will be considered initial claims for the purpose of this law and the effective date will be determined under applicable laws and regulations relating to original claims but not earlier than August 25, 1959. (Instruction 1, 38 U.S.C. 312(4), Pub. Law 86-187.) §3.1556 Presumption of service connection for Hansen's disease (leprosy) under 38 U.S.C. 312, amended by Public Law 86–188.

as

(5) Hansen's disease developing a 10 per centum degree of disability or more within three years from the date of separation from such service;

shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record of evidence of such disease during the period of service.

(b) Effect of the act. The law extends the presumptive period for service connection from 1 year to 3 years in cases of war veterans. It is applicable to both disability and death claims. The amend

ment applies only to war service. It does not amend 38 U.S.C. 333, or change the rule as to peacetime service connections.

(c) Effective date. The date of enactment of this act was August 25, 1959. No benefit based solely on the liberalizing provisions of this law may be made effective prior to date of enactment.

(1) Pending claims. The effective date of an award as to a claim pending on the date of enactment will be August 25, 1959, if evidence otherwise establishes entitlement on that date. Pending claims will include:

(i) A claim not previously adjudicated. (ii) A previously disallowed claim pending consideration on appeal.

(iii) A previously disallowed claim reopened by the receipt of any claim, evidence or inquiry on which action was pending on date of enactment.

(iv) A previously disallowed claim reopened by the receipt of any claim, evidence or inquiry after date of enactment but within the appeal period.

(2) New claims. All other claims, formal or informal, received on or after August 25, 1959, will be considered initial claims for the purpose of this law and the effective date will be determined under applicable laws and regulations relating to original claims but not earlier than August 25, 1959. (Instruction 1, 38 U.S.C. 312(5), Pub. Law 86-188)

§3.1557 Payments to wife, child or

parent of a competent veteran receiving_compensation who disappears, 38 U.S.C. 358, as amended by Public Law 86-212.

[Revoked, 27 F.R. 4917, May 25, 1962] §3.1558 Title 38, United States Code

106a, as modified by Public Law 86142. Recognition of service in the Women's Army Auxiliary Corps (WAAC) as active military service for persons who subsequently performed service in the Armed Forces.

(a) Provisions of the law. (1) Section 1 of the law adds the following to Title 10, United States Code:

1038. Service Credit: certain service in Women's Army Auxiliary Corps.

In computing years of active service of any female member of the armed forces, there shall be credited for all purposes, except the right to promotion, in addition to any other service that may be credited, all active service performed in the Women's Army Auxiliary Corps after May 13, 1942, and before September 30, 1943, if that member performed active service in the armed

an officer in the Women's Army Auxiliary Corps shall be credited as active service in the status of a commissioned officer, and service as an enrolled member of the Corps shall be credited as active service in the status of an enlisted member.

(2) Section 2 provides:

A person entitled to pension or compensation under any law administered by the Veterans' Administration, based upon the active service described in section 1 of this Act, may elect within one year after the enactment of this Act to receive that pension or compensation in lieu of any compensation under the Federal Employees' Compensation Act, as amended (5 U.S.C. 751 et seq.), to which that person is entitled on the basis of the same service. Such an election is irrevocable and does not entitle that person to the pension or compensation for any period before the date the election is made.

(3) Section 3 states:

No person is entitled to back pay or allowances because of any service credited under section 1 of this Act.

(b) Effect of the act-(1) General. For service in the Women's Army Auxiliary Corps after May 13, 1942, and before September 30, 1943, to be considered active service for benefits administered by the Veterans Administration because of active service in the Armed Forces subsequent to September 29, 1943, the period of active service in the Women's Army Auxiliary Corps must have been terminated by release or discharge under conditions other than dishonorable. Only "active service in the armed forces after September 29, 1943," that was terminated under conditions other than dishonorable will qualify a period of Women's Army Auxiliary Corps service as active service for Veterans Administration benefits. There is no requirement that the qualifying, subsequent active service be consecutive with or proximate to the Auxiliary Corps service or that it be during a defined war period. This act does not limit benefits provided former members of the Women's Army Auxiliary Corps under any other law.

(2) Pensions. An individual who performs active service in the Armed Forces after September 29, 1943, may be credited in addition with active service performed in the Women's Army Auxiliary Corps after May 13, 1942, and before September 30, 1943, for purposes of pension eligibility; requirements of active service for a total of 90 days or more can be composed of two or more periods of serv

ice in World War II, e.g., Women's Army Auxiliary Corps service combined with Women's Army Corps or other active service in the Armed Forces. Moreover, 90 or more days service in Women's Army Auxiliary Corps becomes active service for pension, where there is later active service even outside a war period.

(3) Compensation. An individual with disability incurred in or aggravated by service in the Women's Army Auxiliary Corps with subsequent qualifying active service in the Armed Forces is entitled to disability compensation on the same basis as any other person with a disability resulting from disease or injury in active service.

(c) Elections-(1) Persons receiving federal employees' compensation based on Women's Army Auxiliary Corps service on date of enactment (August 7, 1959). The limitation on the time in which an election to receive Veterans Administration compensation or pension must be made that is contained in section 2 of this act is interpreted to have application only to persons receiving federal employees' compensation based on Women's Army Auxiliary Corps service on the effective date of this law (Aug. 7, 1959).

(2) Persons not receiving federal employees' compensation based on Women's Army Auxiliary Corps service on August 7, 1959. Current law prohibits concurrent payment of federal employees' compensation based on Women's Army Auxiliary Corps service and Veterans Administration compensation or pension based on any period of service.

(3) Effects of election. Since a veteran's election or the election of a surviving dependent to receive Veterans Administration compensation or pension instead of compensation under the Federal Employees' Compensation Act is final and re-election is prohibited, every claim considered under this act should first be considered for compensation or pension entitlement. Then the veteran or dependent should be notified of the potential Veterans Administration compensation or pension and the effects of an election to receive the Veterans Administration benefit. A binding election is made only after the beneficiary has been properly informed of her entitlement to compensation or pension and her right to elect between the benefits from the Veterans Administration and compensation under the Federal Em

ployees' Compensation Act; moreover, she must be aware of the finality of the election. Care should be exercised to assure that information supplied will be sufficient to insure a valid, irrevocable election.

(d) Effective dates. Since Public Law 86-142 creates a new basis for eligibility, veterans in the prescribed category must file claim for benefits. The effective date of an award of compensation or pension under this law shall be the date of enactment, August 7, 1959, the date of claim, the date evidence shows entitlement or the date of receipt of election to receive Veterans Administration payments, whichever is the later. If award is effective the date of receipt of election it will be subject to offset of any payments made by the Bureau of Employees' Compensation over the same period. (Instruction 1, Pub. Law 86-142) §3.1559 Instructions relating to accumulation and final disposition of certain benefits in the case of incompetent veterans.

(a) Effects of Public Law 86–146—(1) Section 3202(d). All gratuitous benefits deposited by the Veterans Administration either prior or subsequent to December 1, 1959, into a Personal Funds of Patients account of a veteran rated or adjudged mentally incompetent or insane will be paid upon his death in the following order of preference to persons living at time of settlement. Funds not deposited by the Veterans Administration but deposited by the veteran or others to the veteran's account will be excluded from application of this law.

(i) Surviving spouse.

(ii) Children (without regard to age or marital status) in equal parts, and (iii) Dependent parents in equal parts. In the absence of any person in the preceding classes, there may be paid (other than to a political subdivision of the United States) from any balance remaining so much as may be necessary for last sickness or burial expenses. Any remainder will be credited to the current appropriation.

(2) Section 3203 (a) (2) (B). Any claim filed pursuant to the preceding subparagraph must be filed within 5 years after the veteran's death. If the person entitled is under legal disability at the time of the veteran's death, the 5-year period will run from date of removal of legal disability. Failure of a preferred dependent to file timely claim will not operate