sirable 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 Veterans Administration, but, in the case of an alien, the effect of the discharge will be governed by § 3.7(b).

§ 3.15

Computation of service.

For non-service-connected or serviceconnected 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 § 3.9. Time spent in a hospital on sick furlough or as a prisoner-of-war is included. In claims based on Spanish-American War service, leave authorized under General Order No. 130, War Department, is included.

[27 F.R. 4024, Apr. 27, 1962]

CROSS REFERENCE: Duty periods. See § 3.6 (b) (6).

§ 3.16 Service pension.

(a) Indian wars. See § 3.3(b) (1). (b) Spanish-American War. In computing the 70 or 90 days required under § 3.3(b) (2), 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 of length of service.

§3.17 Disability and death pension;

World War I, World War II and
Korean conflict.

In computing the 90 days' service required by § 3.3(c), there will be included active service which began before and extended into World War I, or began or ended during World War II or the

Korean conflict, if such service was continuous.

[26 F.R. 8513, Sept. 12, 1961]

§ 3.20

Widow's benefit for month of veteran's death.

Where the veteran died on or after December 1, 1962, the rate of death pension, death compensation or dependency and indemnity compensation otherwise payable for his widow 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 death. (38 U.S.C. 3110; secs. 4 and 7, Public Law 87-825) [27 F.R. 11886, Dec. 1, 1962]

RELATIONSHIP

§ 3.50 Wife or widow.

(a) Wife. "Wife" means a person whose marriage to the veteran meets the requirements of §3.1(j).

(b) Widow. Except as provided in § 3.52, "widow" means a person whose marriage to the veteran meets the requirements of § 3.1(j) and who was the lawful wife of the veteran at the time of his death and who lived with him continuously from the date of marriage to the date of his death (except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the wife) and who has not remarried (unless the purported remarriage is void). (38 U.S.C. 101(3))

CROSS REFERENCE: Marriage. See § 3.205. § 3.51 Dependent husband or widower.

(a) General. The term "wife" includes the husband of any female veteran if such husband is incapable of selfmaintenance and is permanently incapable of self-support due to physical or mental disability. The term "widow" includes the widower of any female veteran if such widower is incapable of selfmaintenance and was permanently incapable of self-support due to physical or mental disability at the time of the veteran's death. (38 U.S.C. 102(b)) Determinations of dependency will be made under the criteria stated in § 3.250.

(b) Entitlement. A dependent husband or widower meeting the requirements of paragraph (a) of this section is in the same status as a wife or widow of a male veteran and is eligible to receive the same benefits, if otherwise

entitled, in a claim for pension, compensation, or dependency and indemnity compensation.

§ 3.52 Marriages deemed valid.

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 5 or more years before the veteran died, 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 death as outlined in § 3.53, and

(d) No claim has been filed by a legal widow who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. (38 U.S.C. 103(a))

[Paragraph (d) amended, 27 F.R. 1215, Feb. 9, 1962]

CROSS REFERENCE: Marriages deemed valid. See § 3.205(c).

§ 3.53

Continuous cohabitation.

(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 there was no separation due to the fault of the widow. 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 widow 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 widow to desert her husband, 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.

A widow may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his service or, if married to him after his separation from service, before the applicable date stated in this section.

(a) Pension. Death pension may be paid to a widow who was married to the veteran:

(1) Five or more years prior to his death, or

(2) For any period of time if a child was born of 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) World War I-December 14, 1944. (v) World War II-January 1, 1957.

(vi) Korean conflict-February 1, 1965. (38 U.S.C. 532(d), 534 (c), 536(c), 541(e)) [Subparagraph (3) amended, 27 F.R. 1215, Feb. 9, 1962]

(b) Compensation. Death compensation may be paid to a widow who, with respect to date of marriage, could have qualified as a widow for death compensation under any law administered by the Veterans Administration in effect on December 31, 1957, or who was marIried to the veteran:

(1) Before the expiration of 10 years or, effective June 8, 1960, before the expiration of 15 years after termination of the period of service in which the injury or disease which caused his death was incurred or aggravated, or

[Subparagraph (1) amended, 27 F.R. 1215, Feb. 9, 1962]

(2) Five or more years, or

(3) For any period of time if a child was born of the marriage. (38 U.S.C. 302)

(c) Dependency and indemnity compensation. Dependency and indemnity compensation may be paid to the widow 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 5 or more years, or

(3) For any period of time if a child was born of the marriage. (38 U.S.C. 404)

(d) Child born of the marriage. The term "child born of the marriage" means a birth subsequent to the marriage on which the widow's entitlement is predicated. The term includes a fetus advanced to the point of gestation required to constitute a birth under the law of the jurisdiction in which the fetus was delivered.

(e) More than one marriage to veteran. For periods commencing on or after January 1, 1958, where a widow has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to date of marriage has been met. (38 U.S.C. 103(b))

[Paragraph (e) amended, 27 F.R. 6498, July 10, 1962]

§ 3.55 Remarried widows.

Pension, compensation, or dependency and indemnity compensation may be paid to a widow who has remarried only if:

(a) The remarriage was void, or

(b) The claimant was eligible for pension or compensation as a "former" or "remarried" widow of a veteran of the Spanish-American War or prior wars under laws in effect prior to January 1, 1958, and was receiving such benefit as a former widow on December 31, 1957, or was entitled thereto by reason of a claim pending on that date or a claim filed within 1 year from the date of the veteran's death which establishes entitlement prior to January 1, 1958. Entitlement under this paragraph will be terminated permanently in the event of a subsequent remarriage, unless such remarriage is void.

CROSS REFERENCES: Widow. See § 3.50(b). Void remarriages of widows. See § 3.207. [Cross reference amended, 27 F.R. 6498, July 10, 1962]

Void remarriage of widow. See § 3.402(c). In receipt of or entitled to receive benefits on December 31, 1958. See § 3.953 (a).

§ 3.57 Child.

(a) General. The term "child" of the veteran means an unmarried person:

(1) Who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member of his household at the time of his death, or an illegitimate child; and

or

(2) Who is under the age of 18 years;

(3) Who, before reaching the age of 18 years, became permanently incapable of self-support; or

(4) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 21 years) is pursuing a course of instruction at an approved educational institution.

(b) Stepchild. The term means a legitimate or an illegitimate child of the veteran's spouse, if the child was under the age of 18 years at the time the child became a member of the veteran's household. A child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of § 3.52 and who otherwise meets the requirements of this paragraph is included.

(c) Adopted child. Effective August 25, 1959, the term includes, as of the date of death of a veteran, one who was:

(1) Living in the veteran's household at the time of his death, and

(2) Legally adopted by the veteran's spouse pursuant to a final decree of adoption or an interlocutory decree of adoption which has the effect of a final decree, rendered within 2 years after August 25, 1959, or the veteran's death, whichever is later, and

(3) Not receiving from an individual other than the veteran or his spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. (38 U.S.C. 101(4))

CODIFICATION: In § 3.57 paragraph (c) was added, 27 F.R. 1215, Feb. 9, 1962. Subsequently paragraph (b) and subparagraph (2) of paragraph (c) were amended, 27 F.R. 6498, July 10, 1962.

(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 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 U.S.C. 101(5))

§ 3.100

ADMINISTRATIVE

Delegations of authority.

(a) All adjudication officers, assistant adjudication officers, authorization officers, employees designated to act as authorization officers, section chiefs and unit chiefs, are delegated authority 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 Veterans Administration governing the payment of monetary benefits to veterans and their dependents, within the jurisdiction of Compensation and Pension Service.

(b) The Director, Compensation and Pension Service, the Deputy Director for Program Administration, Chiefs of Consultants Staffs, and persons acting in such positions, Chairmen and Section Chairmen, Committees on Waivers, are delegated authority to take final action in the waiver of the recovery of payments from any person pursuant to the provisions of 38 U.S.C. 3102 subject to any limitations imposed by current Veterans Administration regulations and instructions.

[Paragraph (b) amended, 27 F.R. 5608, June 13, 1962]

(c) The authority delegated by paragraphs (a) and (b) of this section, will

terminate upon separation from service or change to a position not designated in paragraphs (a) and (b) of this section. (38 U.S.C. 212(a))

§ 3.101 Decisions to conform.

All decisions will conform to the laws, regulations, Administrator's decisions, and defined policies as enunciated by the Administrator. All opinions of the General Counsel which constitute a preceIdent are contained in Administrator's decisions or opinions which are approved by the Administrator. Conclusions reached in individual cases are frequently influenced by peculiar facts or local statutes and, consequently, will not be followed as precedents. However, where it is apparent beyond question that the situation is identical, such conclusions may be followed as a matter of consistency in the adjudication of claims under the law or regulations applicable.

It is the defined and consistently applied policy of the Veterans Administration 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 by reason of the fact that the evidence does not satisfactorily prove or disprove the claim, yet 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; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that his claim is well grounded. 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 a 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.

§ 3.103 Information to be furnished

claimants.

The claimant will be informed of his entitlement or nonentitlement, the reason, his right of appeal, and of the time limit within which an appeal may be filed.

§ 3.104 Finality of decisions.

(a) The decision of a duly constituted rating agency or other agency of original jurisdiction will be final and binding upon all field offices of the Veterans Administration and will not be subject to revision except by duly constituted appellate authorities or except as provided in § 3.105.

(b) Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide and findings of fact of death or presumptions of death made in accordance with existing instructions by either an Adjudication activity, a Vocational Rehabilitation and Education activity, or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.

(c) A decision of an agency of original Jurisdiction which is not appealed within 1 year from the date of notice of the disallowance will be final. Where an appeal is timely filed, the disallowance, if affirmed, does not become final until the date of the appellate decision. U.S.C. 4004 (a) and 4005(b)) § 3.105 Revision of decisions.

(38

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 knowledge (§ 3.500 (b)); there is a change in law or a Veterans Administration issue, or a change in interpretation of law or a Veterans Administration 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) Error. Previous determinations on which an action was predicated, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and

87166-63- 4

unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500 (b) (2) will apply.

(b) Difference of opinion. Whenever an adjudicative agency is of the opinion that a revision or an amendment of a previous decision is warranted, a difference of opinion being involved rather than a clear and unmistakable error, the proposed revision will be recommended to Central Office.

(c) Character of discharge. A determination as to character of discharge or line of duty which would result in discontinued entitlement is subject to the provisions of paragraph (d) of this section.

(d) Severance of service connection. Subject to the limitations contained in §§ 3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government). (Where service connection is severed because of a change in or interpretation of a law or Veterans Administration issue, the provisions of §3.114 are for application.) A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons, and submitted to Central Office for review without notice to the claimant or representative. Ratings for carious or missing teeth, pyorrhea, or Vincent's disease will not be submitted. If the proposal is approved on review by Central Office, the claimant will be notified

Page 45