(m) "In line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct. A service department finding that injury, disease or death occurred in line of duty will be binding on the Veterans Administration unless it is patently inconsistent with the requirements of laws administered by the Veterans Administration. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

or

(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court. (38 U.S.C. 105) (n) "Willful misconduct" means an act involving conscious wrongdoing known prohibited action (malum in se or malum prohibitum). A service department finding that injury, disease or death was not due to misconduct will be binding on the Veterans Administration unless it is patently inconsistent with the facts and the requirements of laws administered by the Veterans Administration.

(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.

(2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.

(3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. (See §§ 3.301.3.302.)

(o) "Political subdivision of the United States" includes the jurisdiction defined as a State in paragraph (1) of this section, and the counties, cities or municipalities of each.

(p) "Claim”—“Application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.

(q) "Notice" means written notice sent to a claimant or payee at his or her latest address of record.

(r) "Date of receipt" means the date on which a claim, information or evidence was received in the Veterans Administration, except as to specific provisions for claims or evidence received in the State Department (§ 3.108), or in the Social Security Administration (§ 3.153, §3.201), or Department of Defense as to initial claims filed at or prior to separation.

(s) "On the borders thereof" means, with regard to service during the Mexican border period, the States of Arizona, California, New Mexico, and Texas, and the nations of Guatemala and British Honduras. (38 U.S.C. 101(30); Public Law 91-588, 84 Stat. 1580)

(t) "In the waters adjacent thereto" means, with regard to service during the Mexican border period, the waters (including the islands therein) which are within 750 nautical miles (863 statute miles) of the coast of the mainland of Mexico. (38 U.S.C. 101(30); Public Law 91-588, 84 Stat. 1580)

[26 F.R. 1563, Feb. 24, 1961, as amended at 27 F.R. 4023, Apr. 27, 1962; 27 FR. 11886, Dec. 1, 1962; 28 FR. 820, Jan. 11, 1963; 32 F.R. 6840, May 4, 1967; 36 F.R. 5341, Mar. 20. 1971; 36 FR 8445, May 6, 1971; 40 FR 16064 Mar. 3, 1975]

CROSS REFERENCES: Pension. See § 3.3.
Compensation. See § 3.4.

Dependency and indemnity compensation. See § 3.5.

§ 3.2 Periods of war.

(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. (See § 3.3(b).)

(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. August 5, 1964, through May 7, 1975 inclusive.

(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. (38 U.S.C. 101)

(h) Mexican border period. May 9, 1916 through April 5, 1917, in the case of a veteran who during such period served in Mexico, on the borders thereof, or in the waters adjacent thereto. (38 U.S.C. 101 (30); Public Law 92-198, 85 Stat. 663)

(26 FR. 1563, Feb. 24, 1961, as amended at 32 F.R. 13223, Sept. 19, 1967; 36 F.R. 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26, 1975]

(a) Pension. This term means a monthly payment made by the Veterans Administration to a veteran because of service, age, or non-service-connected disability, or to a widow or widower or child of a veteran because of the nonservice-connected death of the veteran. Except as provided in paragraph (d) (3) of this section, pension is not payable unless the veteran was discharged under conditions other than dishonorable from the period of service on which the claim is based. (38 U.S.C. 101(2), (15)) (See $3.252 as to annual income limitations for disability and death pension.)

(b) Service pension; Indian and Spanish-American Wars-(1) Indian wars. Basic entitlement exists if the veteran served for 30 days or more, or for the duration of an Indian war in any military organization, whether or not mustered into the service of the United States, under the authority of or by the approval of the United States or any State. (38 U.S.C. 511)

(2) Spanish-American War. Basic entitlement exists if the veteran:

(1) 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 service connected without benefit of presumptive provisions of law, or at the time of discharge had such a service-connected dis

ability, shown by official service records, which in medical judgment would have justified a discharge for disability. (38 U.S.C. 512)

(c) Disability pension; Mexican border period, and later war periods. Basic entitlement exists if the veteran:

(1) 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, effective July 21, 1961, during different war periods, including service during the Spanish-American War (38 U.S.C. 521(g); Public Law 92-198, 85 Stat. 663); or

(2) Was discharged or released from such service before having served the stated 90 days for a disability 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; and

(3) Is permanently and totally disabled from non-service-connected disability not due to his own willful misconduct or vicious habits, or by reason. of having attained the age of 65 years. (38 U.S.C. 502, 521)

(d) Death pension (1) Indian war. Basic entitlement exists for the widow or child of a deceased veteran of an Indian war if the veteran's service meets the requirements of paragraph (b) (1) of this section. (38 U.S.C. 534, 535)

(2) Spanish-American War. Basic entitlement exists for the widow or child of a deceased veteran if the veteran:

(1) Had 90 days or more active service during the Spanish-American War; or

(11) Was discharged or released from such service for a disability 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. (38 U.S.C. 536, 537)

(3) Mexican border period and later war periods. Basic entitlement exists for the widow, widower or child of a deceased veteran if the veteran's service meets the requirements of paragraph (c) (1) or (2) of this section or the veteran was, at the time of death, receiving or entitled to receive compensation or retirement pay for service-connected disa

bility based on wartime service. Basic entitlement also exists under the provisions of this subparagraph, effective January 1, 1975, for the widow, widower or child of a deceased veteran, as defined in §3.1(d) (2) whose service meets the requirements of paragraph (c)(1) of this section. (38 U.S.C. 541, 542; Pub. L. 93-527, 88 Stat. 1702)

126 F.R. 1563, Feb. 24, 1961, as amended at 27 FR. 4023, Apr. 27, 1962; 28 FR. 9811. Sept. 7, 1963; 37 FR 6676, Apr. 1, 1972; 40 FR 16064, Mar. 3, 1975]

§ 3.4 Compensation.

(a) Compensation. This term means a monthly payment made by the Veterans Administration to a veteran because of service-connected disability, or to a widow, widower, 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. (38 U.S.C. 101(2), (13))

(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. (38 U.S.C 310, 331)

(2) An additional amount of compensation may be payable for a wife, husband, child, and/or dependent parent where a veteran is entitled to compensation based on disability evaluated as 50 per centum or more disabling. (38 U.S.C. 315, 335)

(c) Death compensation. Basic entitlement exists for a widow, widower, 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. 724 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

(2) Pursuant to the election of a widow, widower, child, or parent, in the case of such a death occurring before January 1, 1957. (38 U.S.C. 101(14))

(b) Entitlement. Basic entitlement for a widow, widower, 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

(c) Exclusiveness of remedy. 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 death pension or compensation under any other law administered by the Veterans Administration. (38 U.S.C.

417)

(d) Group life insurance. No dependency and indemnity compensation or death compensation shall be paid to any widow or widower, child or parent based on the death of a commissioned officer of the Public Health Service, the Coast and Geodetic Survey, the Environmental Science Services Administration, or the National Oceanic and Atmospheric Administration occurring on or after May 1, 1957, if any amounts are payable under the Federal Employees' Group Life Insurance Act of 1954 (Pub. L. 598, 83d Congress, as amended) based on the same death. (sec. 501(c) (2), Public Law 881, 84th Congress (70 Stat. 857), as amended by sec. 13 (u), Pub. L. 85-857 (72

Stat. 1266), sec. 5, Pub. L. 91-621 (84 Stat. 1863)).

(e) Widow's or widower's rate. (1) The monthly rate of dependency and indemnity compensation for a widow or widower is based on the "pay grade” of the veteran. This rate is subject to increase as provided in paragraph (e) (3) of this section. (38 U.S.C. 411(a))

(2) The Secretary of the concerned service department will certify the "pay grade" of the veteran and the certification will be binding on the Veterans Administration. (38 U.S.C. 421)

(3) If there is a widow or widower with one or more children under the age of 18 (including a child not in the widow's or widower's actual or constructive custody and a child who is in active military, air, or naval service), the total amount payable shall be increased by $26 for each child. (38 U.S.C. 411(b), Pub. L. 93-295, (88 Stat. 180))

[29 F.R. 10396, July 25, 1964, as amended at 35 F.R. 18661, Dec. 9, 1970; 37 FR 6676, Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974]

(a) “Active military, naval, and air service". This includes active duty, and 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.

(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

(ii) 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 (where entitlement to disability or death benefits arises solely under this subparagraph, benefits may not be paid for any period prior to January 1, 1959); and

(5) Authorized travel to or from such duty or service.

(6) A person discharged or released from a period of active duty, shall be deemed to have continued on active duty during the period of time immediately following the date of such discharge or release from such duty determined by the Secretary concerned to have been required for him to proceed to his home by the most direct route, and, in all instances, until midnight of the date of such discharge or release. (38 U.S.C. 106(c)). The provision is effective:

(1) January 1, 1957, for service-connected death benefits where the discharge or release occurred on or after that date.

(ii) January 1, 1959. for service-connected disability compensation where the discharge or release occurred on or after January 1, 1957.

(iii) July 21, 1961, for compensation or pension, where the discharge or release occurred prior to January 1, 1957.

(c) Active duty for training. (1) Full-time duty in the Armed Forces performed by Reserves for training purposes;

(2) Full-time duty for training purposes performed as a commissioned officer of the 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 performed by members of the National Guard or Air National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505, or the prior corresponding provisions of law (where entitlement to disability benefits arises solely under this subparagraph, benefits may not be paid for any period prior to January 1, 1959); or full-time duty by such members while participating in the reenactment of the Battle of First Manassas in July 1961; and

(4) For the purposes of dependency and indemnity compensation, annual training duty to which ordered for a period of 14 days or more by a member of a Reserve Officers' Training Corps (38 U.S.C. 403); and

(5) Authorized travel to or from such duty.

The term does not include duty performed as a temporary member of the Coast Guard Reserve.

(d) Inactive duty training.

means:

This

(1) Duty (other than full-time duty) prescribed for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by the Secretary concerned under 37 U.S.C. 301 or any other provision of law; and

(2) Special additional duties authorized for Reserves (including commissioned officers of the Reserve Corps of the Public Health Service) by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.

(3) Duty (other than full-time duty) performed by a member of the National Guard or Air National Guard of any State, under 32 U.S.C. 316, 502, 503, 504, or 505. or the prior corresponding provisions of law. (Where entitlement to disability benefits arises solely under this subparagraph, benefits may not be paid for any period prior to January 1, 1959.) The term "inactive duty training" does not include:

(1) Work or study performed in connection with correspondence courses;

(11) Attendance at an educational institution in an inactive status, or

(iii) Duty performed as a temporary member of the Coast Guard Reserve.

(e) Travel status; training duty (disability or death from injury). Any member of a Reserve Component:

(1) Who, when authorized or required by competent authority, assumes an obligation to perform active duty for training or inactive duty training; and

(2) Who is disabled or dies from an injury incurred while proceeding directly to or returning directly from such active duty for training or inactive duty training shall be deemed to have been on active duty for training or inactive duty training, as the case may be. The Veterans Administration will determine whether such individual was so authorized or required to perform such duty, and whether he was disabled or died from injury so incurred. In making such determinations, there shall be taken into consideration the hour on which he began to proceed or return; the hour on which he was scheduled to arrive for, or on which he ceased to perform, such duty; the method of travel performed; his itinerary; the manner in which the travel was performed; and the immediate cause of disability or death. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this paragraph, the burden of proof shall be on the claimant. (38 U.S.C. 106(d); Public Law 88-616.)

[26 F.R. 1564, Feb. 24, 1961, as amended at 26 F.R. 6767, July 28, 1961; 27 F.R. 4023, Apr. 27, 1962; 29 F.R. 14171, Oct. 15, 1964; 36 FR. 5341, Mar. 20, 1971]

§ 3.7

Persons included.

The following are included:

(a) Aerial transportation of mail (Pub. Law 140, 73d Congress). Persons who were injured or died while serving under conditions set forth in Public Law 140, 73d Congress.

(b) Aliens. Effective July 28, 1959, a veteran discharged for alienage during a period of hostilities unless evidence affirmatively shows he was discharged at his 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 is otherwise entitled. A discharge changed prior to January 7, 1957, to honorable by a board established under authority of section 301, Public Law 346, 78th Congress, as amended, or section 207, Public Law 601, 79th Congress, as amended (now 10 U.S.C. 1552 and 1553), will be considered as evidence that the

89