at his latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. If additional evidence is not received within that period, rating action will be taken and the award will be discontinued effective the last day of the month in which the 60-day period expired. (38 U.S.C. 3012 (b) (6); Public Law 87-825)

(e) Reduction in evaluation-compensation. Where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, rating action will be taken. The reduction will be made effective the last day of the month in which a 60-day period from date of notice to the payee expires. The veteran will be notified at his latest address of record of the action taken and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. (38 3012(b) (6); Public Law 87-825)

U.S.C.

(f) Reduction in evaluation—pension. Where a reduction in evaluation is considered warranted because of a change in non-service-connected disability or employability and the lower evaluation would result in a reduction or discontinuance of pension payments currently being made, the award will be reduced or discontinued effective the last day of the month in which reduction or discontinuance of the award is approved. The veteran will be notified at his latest address of record of the action taken and furnished detailed reasons therefor, and the conditions under which his claim may be reopened. (38 U.S.C. 3012(b) (5); Public Law 87-825)

CODIFICATION: § 3.105 was amended as

follows:

1. The introductory text and paragraph (a) were amended, 27 F.R. 11886, Dec. 1, 1962. 2. Paragraphs (d) and (e) were amended, 27 F.R. 4364, May 8, 1962, and further amended, 27 F.R. 11886, Dec. 1, 1962.

3. Paragraph (f) was added, 27 F.R. 11886, Dec. 1, 1962.

CROSS REFERENCES: Effective dates. See § 3.400. Reductions and discontinuances. See § 3.500. Protection; service connection. See § 3.957.

[Cross references added, 27 F.R. 4364, May 8, 1962]

(a) Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by the Veterans Administration may renounce his right to that benefit. The renouncement will be in writing over the person's signature. Upon receipt of such renouncement in the Veterans Administration, 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. (38 U.S.C. 3106(a))

(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 Veterans Administration. (38 U.S.C. 3106(b))

(c) 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.

(d) The renouncement of dependency and indemnity compensation by a widow 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.

§ 3.107 Awards where all dependents do not apply.

Except as provided in § 3.251(b) (2), 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 that there is a child or children under 18 years of age for whom no claim has been filed, the award will be made only at the apportioned rate, if as to such children it is possible for a claim to be filed under which benefits may be awarded for a period prior to date of filing claim. If, at the expiration of the period allowed, claims for such additional children have not been filed, the award to the widow or child will be amended to provide for payment at the full rate over the period affected.

(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. 3003(a))

(2) The provisions of this paragraph are applicable to original applications, formal or informal, and 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) Failure to furnish claim form or notice of time limit. Failure to furnish a potential claimant any form or information concerning the right to file claim for pension, compensation, or dependency and indemnity compensation, or to furnish notice of the time limit for the submission of evidence, or to furnish notice of the time limit for the filing of an appeal will not extend the period allowed for these actions.

(c) Request for waiver of overpayment. When an overpayment is created a request for waiver will be considered only if received within 1 year following the date of the notice by the Finance activity to the person or persons of the existence of the overpayment.

[Paragraph (c) added, 26 F.R. 2231, Mar. 16, 1961]

§3.110 Computation of time limit.

In computing the time limit for the filing of claims or evidence requested by the Veterans Administration, 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.

§ 3.111

Appeals on simultaneously contested claims.

(a) Where one claim is allowed and one denied, or the allowance of one claim would result in payment of a lower rate to another claimant, the person adversely affected may file an appeal within 60 days from the date of the letter of denial.

(b) If an appeal is received and it is indicated that additional evidence is to be submitted, a period of 60 days (90 days in cases of claimants residing outside the continental limits of the United States) will be allowed to submit such evidence. This may be extended not to exceed an additional 60 days (90 days to those residing outside the continental limits of the United States) if good cause is shown.

(c) Upon the filling of an appeal, the allowed claimant will be notified and when all evidence has been submited by the appellant, the other claimant will be informed of its substance and will be allowed 30 days (60 days if residing outside the continental limits of the United States) within which to file a brief or argument in answer.

(d) If no appeal is timely filed, an award will be made to the claimant whose entitlement has been established.

(e) Notices as required by this section will be forwarded to the parties in interest to the latest known address of record. (38 U.S.C. 4007)

(b) Certified by a notary public or other person having authority to administer oaths for general purposes; or (c) Certified by a Veterans Administration employee under authority of Veterans Administration Form 4505 series. [27 F.R. 4365, May 8, 1962]

§3.114

Change of law or Veterans Administration issue.

(a) Effective date of awards. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or a liberalizing Veterans Administration issue, approved by the Administrator or by his 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.

(1) If a claim is reviewed on the initiative of the Veterans Administration within 1 year from the effective date of the law or Veterans Administration 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 Veterans Administration issue.

(2) If a claim is reviewed on the initiative of the Veterans Administration more than 1 year after the effective date of the law or Veterans Administration 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 of the law or Veterans Administration issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (38 U.S.C. 3010(g); Public Law 87-825)

(b) Discontinuance of benefits. Where the reduction or discontinuance of an award is in order because of a change in law or a Veterans Administration issue, or because of a change in interpretation of a law or Veterans Administration issue, the payee will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the

60-day period expired. (38 U.S.C. 3012 (b) (6); Public Law 87-825) [27 F.R. 11886, Dec. 1, 1962]

§3.150

CLAIMS

Forms to be furnished.

(a) Upon request made in person or in writing by any person applying for benefits under the laws administered by the Veterans Administration, the appropriate application form will be furnished. (38 U.S.C. 3002)

(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.

(c) When disability or death is due to Veterans Administration hospital treatment, training, medical or surgical treatment, or examination, a specific application for benefits will not be initiated.

(d) When it is apparent that any child of record may be entitled to dependency and indemnity compensation in its own right due to termination of the widow's entitlement (e.g., by reason of death or marriage), any written statement showing intent to claim in behalf of such child will constitute sufficient application. In the absence of a written statement constituting a claim, the appropriate application form will be forwarded.

CROSS REFERENCE: Failure to furnish claim form or notice of time limit. See § 3.109 (b). § 3.151 Claims for disability benefits.

A specific claim in the form prescribed by the Administrator must be filed in order for benefits to be paid to any individual under the laws administered by the Veterans Administration (38 U.S.C. 3001(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.

CROSS REFERENCE: Informal claims. See §3.155(b).

(b) (1) A claim by a widow or child for compensation or dependency and indemnity compensation will also be considered to be a claim for death pension and accrued benefits, and a claim by a widow or child for death pension will be considered to be a claim for death compensation or dependency and indemnity compensation and accrued benefits. (38 U.S.C. 3001(b) (1))

(2) A claim by a parent for compensation or dependency and indemnity compensation will also be considered to be a claim for accrued benefits. (38 U.S.C. 3001(b) (2))

(c) (1) Where a child's entitlement to dependency and indemnity compensation arises by reason of termination of a widow's right to dependency and indemnity compensation or by reason of attaining the age of 18 years, a claim I will be required. (38 U.S.C. 3010(e)) Where the award to the widow is terminated by reason of her death, a claim for the child will be considered a claim for any accrued benefits which may be payable.

[Subparagraph (1) amended, 27 F.R. 11887, Dec. 1, 1962]

(2) A claim filed by a widow who does not herself have entitlement will be accepted as a claim for a child or children in her custody named in the claim.

(3) Where a claim of a widow is disallowed for any reason whatsoever and where evidence requested in order to determine entitlement of a child or children named in the widow's claim is submitted within 1 year from date of request, requested either before or after disallowance of the widow's claim, an award for the child or children will be made as though the disallowed claim had been filed solely on their behalf. Otherwise, payments may not be made for the child or children for any period prior to the date of receipt of a new claim.

CROSS REFERENCES: State Department as agent of Veterans Administration. See § 3.108.

[Cross references amended, 27 F.R. 11887, Dec. 1, 1962]

§ 3.153 Claims filed with Social Security.

An application on a form jointly prescribed by the Administrator and the Secretary of Health, Education, and Welfare 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 Veterans Administration as of the date of receipt in Social Security Administration. The receipt of such an application (or copy thereof) by the Veterans Administration will not preclude a request for any necessary evidence. U.S.C. 3005)

(38

§3.154 Injury due to hospital treatment, etc.

A formal claim for pension, compensation, dependency and indemnity compensation or any statement in a communication showing an intent to file a claim for disability or for death benefits resulting from the pursuit of a course of vocational rehabilitation, hospitalization, medical or surgical treatment, or examination under Veterans Administration laws may be accepted as a claim. (38 U.S.C. 351; sec. 3, Public Law 87-825) [27 F.R. 11887, Dec. 1, 1962]

Prior Amendments 1961: 26 F.R. 6515, July 20. CROSS REFERENCES:

§ 3.400.

Effective dates. See

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Veterans Administration, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

(c) When a claim has been filed which meets the requirements of § 3.151 or 3.152, an informal application for increase or reopening will be accepted as a claim.

CROSS REFERENCE: State Department as agent of Veterans Administration. See § 3.108.

§3.156 New and material evidence.

(a) New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(b) Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Veterans Administration. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. [27 F.R. 11887, Dec. 1, 1962]

CROSS REFERENCES: Effective dates-general. See 3.400.

Correction of military records. See § 3.400

(g).

§3.157 Report of examination or hospitalization as claim for increase or to reopen.

(a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt

of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Veterans Administration issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114 with respect to action on Veterans Administration initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. (38 U.S.C. 3010(a); Public Law 87-825)

(b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. The evidence listed will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.

(1) Report of Veterans Administration examination or hospitalization at Veterans Administration expense. The date of outpatient or hospital examination or date of admission to a Veterans Administration hospital or date of admission to a non-Veterans Administration hospital if previously authorized will be accepted as the date of receipt of a claim. If subsequently authorized the date the Veterans Administration received notice of admission to a non-Veterans Administration hospital will be accepted.

(2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. Except in claims for pension where the statement of a private physician meets the requirements of § 3.326 (c) or (d), the evidence must be verified by official examination prior to granting benefits.

(3) State and other institutions. When submitted by or on behalf of the