(b) Disability benefits-(1) Disability pension (§ 3.3(c)). Date of receipt of claim or date entitlement arose, whichever is later.

(2) Disability compensation (i) Direct service connection (§ 3.4(b)). Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from the period of service in which the disability was incurred or aggravated; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.

(ii) Presumptive service connection. Date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.

(c) Death benefits—(1) Death in service (38 U.S.C. 3010(j); Public Law 87825; §§ 3.4 (c), 3.5(b)). First day of the month fixed by the Secretary concerned as the date of actual or presumed death, if claim is received within 1 year after the date the initial report of actual death or finding of presumed death was made; however, benefits based on a report of actual death are not payable for any period for which the claimant has received, or is entitled to receive an allowance, allotment, or service pay of the veteran.

(2) Death after separation from service (38 U.S.C. 3010(d); Public Law 87825; §§ 3.3(d), 3.4(c), 3.5(b)). First day of the month in which the veteran's death occurred if claim is received within 1 year after the date of death; otherwise, date of receipt of claim.

(3) Dependency and indemnity compensation (i) Deaths prior to January 1, 1957 (§ 3.702). Date of receipt of election or date dependency and indemnity compensation becomes the greater monthly benefit if election is received within (generally) 120 days before that date.

(ii) Child (38 U.S.C. 3010(e); Public Law 87-825). First day of the month in which entitlement arose if claim is received within 1 year after the date of entitlement; otherwise, date of receipt of claim.

(d) Age; veteran 65, widow 70 (§ 3.208). In other than original claims date of receipt of claim or 65th (or 70th) birthday, whichever is later, if evidence filed within 1 year after date of request.

(e) Apportionment (§§ 3.450 through 3.461, 3.551, 3.557). On original claims,

in accordance with the facts found. On other than original claims from the first day of the month (in Philippine cases, the first day of the second month) following the month in which:

(1) Claim is received for apportionment of a veteran's award, except that where payments to him have been interrupted, apportionment will be effective the day following date of last payment if a claim for apportionment is received within 1 year after that date;

(2) Notice is received that a child included in a widow's award is not in the widow's custody, except that where payments to her have been interrupted, apportionment will be effective the day following date of last payment if such notice is received within 1 year after that date.

(f) Bureau of Employees' Compensation cases (§ 3.708). Date authorized by applicable law, subject to any payments made by the Bureau of Employees' Compensation over the same period of time.

(g) Correction of military records (38 U.S.C. 3010(i); Public Law 87-825). Where entitlement is established because of the correction, change or modification of a military record, or of a discharge or dismissal, by a Board established under 10 U.S.C. 1552 or 1553, or because of other corrective action by competent military naval, or air authority, the award will be effective from the latest of these dates:

(1) Date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim;

(2) Date of receipt of claim if claim was disallowed; or

(3) One year prior to date of reopening of disallowed claim.

(h) Difference of opinion (§ 3.105). (1) As to decisions not final prior to date of receipt in Central Office, the date from which benefits would have been payable if the former decision had been favorable.

(2) As to decisions final prior to date of receipt in Central Office, date of Central Office approval authorizing a favorable decision.

(3) Where the initial determination for the purpose of death benefits is favorable, the commencing date will be determined without regard to the fact that the action may reverse, on a difference of opinion, an unfavorable decision for disability purposes by an adjudicative agency other than the Board of Veterans

Appeals, which was in effect at the date of the veteran's death.

(i) Disability or death due to hospitalization, etc. (38 U.S.C. 3010 (c), (d); Public Law 87-825; § 3.800) -(1) Disability. Date injury or aggravation was suffered if claim is received within 1 year after that date; otherwise, date of receipt of claim.

(2) Death. First day of month in which the veteran's death occurred if a claim is received within 1 year following the date of death; otherwise, date of receipt of claim.

(1) Un

(j) Election of Veterans Administration benefits (§ 3.700 series). less otherwise provided, the date of receipt of election, subject to prior payments.

(2) July 1, 1960, as to pension payable under Public Law 86-211, where pension is payable for June 30, 1960, under the law in effect on that date, including an award approved after that date, if the election is filed within (generally) 120 days from date of notice of the award. The award will be subject to prior payments over the same period of time.

(k) Error (§ 3.105). Date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision.

(1) Foreign residence. (See § 3.653.) (m) Forfeiture (§§ 3.901, 3.902). Day following date of last payment on award to payee who forfeited.

(n) Guardian. Day following date of last payment to prior payee or fiduciary.

NOTE: Award to guardian shall include amounts withheld for possible apportionments as well as money in Personal Funds of Patients.

(0) Increases (38 U.S.C. 3010(a); Public Law 87-825; §§ 3.109, 3.156, 3.157). Except as provided in § 3.401(b) (2), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection.

(p) Liberalizing laws and Veterans Administration issues. See § 3.114.

(q) New and material evidence (§ 3.156)-(1) Other than service department records—(i) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See § 3.104(c).

(ii) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

(2) Service department records. To agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later, subject to rules on original claims filed within 1 year after separation from service. See paragraph (g) of this section as to correction of military records. (r) Reopened claims (§§ 3.109, 3.156, 3.157). Date of receipt of claim or date entitlement arose, whichever is later.

(s) Renouncement (§ 3.106). Date of receipt of new claim.

(t) Servicemen's indemnity (§ 3.705 (c)). Dependency and indemnity compensation may begin if otherwise in order the day following the due date of the final installment of servicemen's indemnity which is payable.

(u) Whereabouts now known (§ 3.158)-(1) Whereabouts unknown for less than 1 year. Day following date of last payment.

(2) Whereabouts unknown for 1 year or more. Date the evidence showing the payee's present whereabouts is received in the Veterans Administration.

(v) Void or annulled marriage (or remarriage) (38 U.S.C. 3010(f), Public Law 87-674; 38 U.S.C. 3010 (a), (k), Public Law 87-825; § 3.55)—(1) Void. Date the parties ceased to cohabit or date of receipt of claim, whichever is later.

(2) Annulled. Date the decree of annulment became final if claim is filed within 1 year after that date; otherwise date of receipt of claim.

CODIFICATION: § 3.400 was amended as

follows:

1. The introductory text to paragraph (a) was amended, 27 F.R. 11888, Dec. 1, 1962. 2. Paragraphs (c) and (d) were amended, 27 F.R. 11888, Dec. 1, 1962.

3. Paragraph (e) was amended 26 F.R. 7219, Aug. 10, 1961 and further amended, 27 F.R. 6878, July 20, 1962, and 27 F.R. 8793, Sept. 1, 1962.

4. Paragraphs (f) and (g) were amended, 27 F.R. 11888, Dec. 1, 1962.

5. Paragraph (h) was amended, 27 FR. 6878, July 20, 1962.

6. Paragraph (i) was amended, 27 F.R. 11888, Dec. 1, 1962.

7. Paragraph (j) was amended, 27 F.R. 6878, July 20, 1962.

8. Paragraph (0) was amended, 27 F.R. 6878, July 20, 1962 and further amended, 27 F.R. 11888, Dec. 1, 1962.

9. Paragraphs (p), (q), and (r) were amended, 27 F.R. 11888, Dec. 1, 1962.

Awards of pension or compensation payable to or for a veteran will be effective as follows:

(a) Aid and attendance (§ 3.552). (1) Date of receipt of claim or date entitlement arose, whichever is later. (See also 3.400 (b) (2).) (2) Date of departure from hospital, institution, or domiciliary.

(b) Dependents, additional compensation for (§ 3.4(b) (2)). The earlier of the following dates:

(1) Commencing date of veteran's award if dependent shown on claim and evidence is received within 1 year after date of request.

(2) For compensation, effective date of the qualifying evaluation if basic proof of dependents in existence on that date is received within 1 year after date of notification of such evaluation, and any necessary substantiating evidence is received within 1 year after date of request. (38 U.S.C. 3010 (f); Public Law 87-825) (Other increases, including disability pension, see § 3.400 (o))

[Paragraph (b) amended, 27 F.R. 11888, Dec. 1, 1962]

Prior Amendments

1962: 27 F.R. 6878, July 20.

(c) Divorce of veteran and wife. (See § 3.501 (d).)

(d) Institutional awards (§ 3.852)(1) Chief officer of non-Veterans Administration hospital or institution. From first day of month in which award is approved or day following date of last payment to veteran, whichever is later.

NOTE: If apportionment under §§ 3.452(c) and 3.454 is in order or payment to wife under § 3.850(a), Personal Funds of Patients account will not be set up but difference withheld for dependents.

(2) Manager of a Veterans Administration hospital or domiciliary. From day following date of last payment to veteran where veteran previously received payments. On initial or resumed payments from date of entitlement to benefits subject to any amounts payable to or withheld for apportionments for dependents.

(e) Retirement pay (§ 3.750)-(1) Election. Date of entitlement if timely

filed. Subject to prior payments of retirement pay.

(2) Waiver. Day following date of discontinuance or reduction of retirement pay.

(3) Reelection. Day the reelection is received by the Veterans Administration. (f) Service pension (§ 3.3(b)). Date of receipt of claim.

[Paragraph (f) amended, 27 F.R. 11889, Dec. 1, 1962]

(g) Tuberculosis, special compensation for arrested. As of the date the graduated evaluation of the disability or compensation for that degree of disablement combined with other service-connected disabilities would provide compensation payable at a rate less than $67 (or $54). (This special compensation is not payable in addition to any other amount of compensation but is a minimum statutory rate.)

(h) Temporary increase (Paragraph 29, "General Policy in Rating," 1945 Schedule for Rating Disabilities). Date of entrance into hospital, after 21 days of continuous hospitalization for treatment.

[Paragraph (h) added, 27 F.R. 11889, Dec. 1, 1962]

Awards of pension, compensation, or dependency and indemnity compensation to or for a widow will be effective as follows:

(a) Additional allowance of dependency and indemnity compensation for children (§ 3.5(a) (3)). Commencing date of widow's award. (See § 3.400 (c).) (b) Legal widow entitled. Day following date of last payment on award to another woman as widow. (See § 3.657.)

(c) Void remarriage of widow (§ 3.55). [Revoked, 27 F.R. 11889, Dec. 1, 19621 § 3.403

Children.

Awards of pension, compensation, or dependency and indemnity compensation to or for a child, or to or for a veteran or widow on behalf of such child, will be effective as follows:

(a) Permanently incapable of selfsupport (§ 3.57 (a) (3)). In original claims, date fixed by §§ 3.400 (b) or (c) or 3.401(b). In claims for continuation of payments, 18th birthday if the condition is claimed prior to or within 1 year after that date; otherwise from date of receipt of claim.

[Paragraph (a) amended, 27 F.R. 11889, Dec. 1, 1962]

(b) Majority (§ 3.854). Direct payment to child if competent, from date of majority.

(c) Posthumous child. Date of child's birth if notice of the expected or actual birth, meeting the requirements of an informal claim, is received within 1 year after the veteran's death; otherwise date of claim.

(d) School attendance. (See § 3.667.)

(e) Servicemen's indemnity or dependency and indemnity compensation— (1) Servicemen's indemnity greater. Due date of the installment next following the death of the former beneficiary.

(2) Dependency and indemnity compensation greater. Date the monthly rate of dependency and indemnity compensation becomes greater than monthly installment of servicemen's indemnity.

(a) (1) All or any part of the pension, compensation, or emergency officers' retirement pay payable on account of any veteran may be apportioned.

(i) On behalf of his wife, children, or dependent parents if the veteran is incompetent and is being furnished hospital treatment, institutional, or domiciliary care by the United States, or any political subdivision thereof. [Subdivision (i) amended, 27 F.R. 6974, July 24, 1962]

(ii) If the veteran by reason of estrangement is not living with his wife, or if his children are not in his custody.

(2) Where any of the children of a deceased veteran are not in the custody of the veteran's widow, the pension, compensation, or dependency and indemnity compensation otherwise payable to the widow may be apportioned. (38 U.S.C. 3107)

(b) Except as provided in § 3.458(e), no apportionment of disability or death benefits will be made or changed solely because a child has entered active duty with the air, military, or naval services of the United States.

[Paragraph (b) amended, 26 F.R. 7266, Aug. 11, 1961]

(c) No apportionment will be made where the veteran, the veteran's wife (when paid "as wife"), widow, or fiduciary is providing for dependents. The additional benefits for such dependents will be paid to the veteran, wife, widow, or fiduciary.

(d) Any amounts payable for children under §§ 3.459, 3.460 and 3.461 will be equally divided among the children.

(e) The amount payable for any child or children in the widow's custody will be added to the widow's share.

[Paragraphs (d) and (e) amended, 26 F.R. 7266, Aug. 11, 1961]

(f) Prior to release of any amounts the relationship of the claimant and the dependency of a parent will be fully developed, and the necessary evidence secured.

(g) Where the widow is entitled to a higher rate of pension by reason of attained age or by reason of having been the wife of the veteran during service, the additional amount will be added to her share.

(h) "Custody" means actual or constructive custody.

§ 3.451 Special apportionments.

Without regard to any other provision regarding apportionment where hardship is shown to exist, pension, compensation, emergency officers' retirement pay, or dependency and indemnity compensation may be specially apportioned between the veteran and his dependents or the widow and children on the basis of the facts in the individual case as long as it does not cause undue hardship to the other persons in interest, except as to those cases covered by § 3.458 (b) and (c). In determining the basis for special apportionment, consideration will be given such factors as: amount of Veterans Administration benefits payable; other resources and income of the veteran and those dependents in whose behalf apportionment is claimed; and special needs of the veteran, his dependents, and the apportionment claimants. The amount apportioned should generally be consistent with the total number

of dependents involved. Ordinarily,

apportionment of more than 50 percent of the veteran's benefits would constitute undue hardship on him, while apportionment of less than 20 percent of his benefits would not provide a reasonable amount for any apportionee.

[26 F.R. 7266, Aug. 11, 1961]

§ 3.452 Veteran's benefits apportionable.

Veteran's benefits may be apportioned: (a) If the veteran is not living with his wife by reason of estrangement or his children are not in his custody and a

claim for apportionment is filed for or on behalf of the wife or children.

(b) Pending the appointment of a guardian or other fiduciary.

(c) (1) Where an incompetent veteran without a fiduciary is receiving institutional care by the United States or a political subdivision, his benefit may be apportioned for a wife or child, or, except as provided in subparagraph (3) of this paragraph, for a dependent parent, unless such benefit is paid to his wife ("as wife") for the use of the veteran and his dependents.

(2) Where benefits for an incompetent veteran are discontinued under the provisions of § 3.557(b), because of hospitalization by the United States Government or any political subdivision, there may be paid to his dependent parent or parents on the basis of need as determined by the Chief Attorney all or any part of the benefit which would otherwise be payable. (38 U.S.C. 3203 (b) (2).)

(3) Where a married veteran is receiving pension at the rate provided by 38 U.S.C. 521(b) and pension is reduced under the provisions of § 3.551(c), because of hospitalization by the Veterans Administration, all or any part of the pension at the rate payable under 38 U.S.C. 521(c) in excess of $30 monthly may be paid to his estranged wife as provided in § 3.454(b) if it is affirmatively shown that hardship exists. (38 U.S.C. 3203 (d); Public Law 87-556)

(d) Where additional compensation is payable on behalf of a parent and the veteran or his guardian neglects or refuses to contribute such an amount to the support of the parent the additional compensation will be paid to the parent upon receipt of a claim.

See

CROSS REFERENCES: Institutional awards. See § 3.852. Disappearance of veteran. §3.656. Reduction because of hospitalization. See 3.551. Penal institutions. See §3.666. Incompetents; estate over $1,500 and hospitalized. See § 3.557.

CODIFICATION: § 3.452 was revised, 26 F.R. 7266, Aug. 11, 1961, and subsequently amended as follows:

1. Paragraph (c) amended, 27 F.R. 6974, July 24, 1962, and subparagraph (3) further amended at 27 F.R. 8793, Sept. 1, 1962.

2. Paragraph (d) amended, 27 F.R. 6974, July 24, 1962.

3. Cross reference amended, 27 F.R. 6975, July 24, 1962.

§ 3.454

Veterans disability pension. Apportionment of pension for a veteran based on service in World War I or later war period will be as follows:

(a) Where a veteran with wife or child is incompetent and without legal fiduciary and is maintained in an institution by the United States or any political subdivision thereof, $10 monthly will be paid as an institutional award to the Director of a Veterans Administration hospital or chief officer of a non-Veterans Administration institution for the use of the veteran, and the balance will be paid to the dependent or dependents. If he has no wife or child but has a dependent parent, apportionment will be in accordance with § 3.451.

(b) Where the pension of any married veteran who is receiving pension under 38 U.S.C. 521(b) is reduced to $30 under the provisions of § 3.551(c), an apportionment may be made to his estranged wife upon an affirmative showing of hardship. The amount of the apportionment generally will be the difference between $30 and the rate payable if pension were being paid under 38 U.S.C. 521(c). Apportionments authorized under 38 U.S.C. 3203(d) in effect prior to enactment of Public Law 87-556 may be continued as special apportionments, subject to review at the request of the veteran or apportionee. (38 U.S.C. 3203 (d); Public Law 87-556)

(c) Where pension for an incompetent veteran is subject both to reduction under § 3.551 (c), and to discontinuance under § 3.557(b) because of hospitalization by the United States Government or any political subdivision, the rate authorized for a parent or parents will not exceed $30 monthly. (38 U.S.C. 3203 (b) (d).)

CODIFICATION: §3.454 was revised, 27 F.R. 6975, July 24, 1962. Subsequently paragraph (b) was amended 27 F.R. 8793, Sept. 1, 1962. Prior Amendments

1961: 26 F.R. 7266, Aug. 11.