If the retired pay is at a rate of less than $10,000 and the civilian pay is at a rate in excess of $10,000, there is no right of election, the civilian pay must be paid, and even though it is a parttime position and the salary actually paid is less than $10,000 per annum, there is no right to any portion of the retired pay (Comptroller GeneralAugust 17, 1932, 12 Comp. Gen. 256). The claim of a part-time employee should be adjudicated on the "rate" of pay for the position rather than on the part-time pay received. It is, therefore, necessary to ascertain from the department or establishment where the veteran is employed, the annual rate of pay for the position held. Section 212, Public Law 212, 72d Congress, as amended, is applicable to persons receiving fees from the Federal Government only when such fees are paid in connection with employment in "a civilian office or position, appointive or elective, under the United States Government or Municipal Government of the District of Columbia, or under corporation, the majority of the stock of which is owned by the United States." However, when the fees are based on services furnished under contract, i. e., when the person receiving same is not an "employee," section 212, Public Law 212, 72d Congress, as amended, is not for application. For example, employment by the Veterans Administration of former officers of the Armed Forces retired for disability as consultants upon a fee basis pursuant to section 14 (a) of Public Law 293, 79th Congress, is not in contravention of section 212 of Public Law 212, 72d Congress, inasmuch as such consultants do not occupy an "office or position" within the meaning of those terms as used in the cited statute, notwithstanding that the term "compensation" as used therein is sufficiently broad to include fees (Comp. Gen. B-62616, January 17, 1947). [Paragraph (a) amended, 22 F. R. 9221, Nov. 19, 1957]

JURISDICTION

§ 3.1025 Jurisdiction of the Veterans Claims Division, Veterans Benefits Office, D. C.

(b) Where the veteran is an employee in the Veterans Administration Regional Office, Wilkes-Barre, Pennsylvania, or in a foreign office, including the Veterans Administration Regional Office, Manila, Republic of the Philippines, in either the

competitive or excepted service who has been continuously employed for 90 days in the Veterans Administration: Provided, That no adjudication is necessary during such period. If any adjudication is necessary in the case of such an employee-claimant during the 90-day period, jurisdiction attaches immediately. This provision is not applicable to member-employees.

(g) Where there is entitlement to compensation under the former General Law, the act of 1862, including the amendments thereto. (See sec. 352, Public Law 85-56.)

(h) Where the protection provided by § 3.1040 (c) or former Public Law 788, 74th Congress, relative to the General Law rate is for application. (See sec. 352, Public Law 85-56.)

(i) Where there is entitlement to naval allowance under sections 6159 and 6160, chapter 561, Title 10, United States Code.

CODIFICATION: In § 3.1025, paragraphs (b), (g), (h), (i), (1), and (n) were amended, 23 F. R. 1122, Feb. 21, 1958.

DETERMINATION AS TO BASIC
ENTITLEMENT

§ 3.1040 Types of discharges for service pension (Spanish-American War, Boxer Rebellion, Philippine Insurrection, Civil War, and Indian Wars)-(a) Honorable discharge. An honorable discharge is a prerequisite for service pension, including pension on the basis of Indian war service, such pension being based upon the fulfillment of a contract for service as contemplated by the soldier's enlistment, and a person discharged under other than honorable conditions for concealing his minority at time of enlistment is not entitled to such pension, except as provided in § 3.61 (b). Pension is not payable unless the veteran was honorably discharged from all periods of service in the particular war concerned, except as provided in § 3.1041. However, effective from October 1, 1951, where entitlement is based upon service in the Spanish-American

War, Philippine Insurrection, or Boxer Rebellion, and effective January 1, 1958, where entitlement is based on Indian or Civil War service, a discharge or release from active service under conditions other than dishonorable shall be a prerequisite to entitlement to service pension (sec. 1 (c), Public Law 108, 82d Cong.; sec. 101 (2), Public Law 85-56). [Paragraph (a) amended, 23 F. R. 3691, May 29, 1958]

PROVISIONAL REGULATIONS

$ 3.1525 Instructions relating to the increase in monthly rates of disability compensation. (a) Section 1 of Public Law 85-168 provides for an increase of 10 percent in the monthly wartime rates of all compensation payable under public laws administered by the Veterans Administration for less than total disability which is adjusted upward or downward to the nearest dollar, counting fifty cents and over as a whole dollar. Under the provisions of Public Law 876, 80th Congress, the rates of compensation for service connected disability based upon service in the Regular Establishment during time of peace are 80 percent of the rates of compensation for disability incurred in time of war. The increases applicable to peacetime veterans provided by section 1, Public Law 85-168 are also subject to further adjustment upward or downward to the nearest dollar. Paragraph II (j), Part I, Veterans Regulation 1 (a) is amended to provide for the monthly payment of $225.00 for disability rated at 100 percent. The maximum rate of compensation, excluding dependency allowance, is increased to $450.00 per month. Special monthly compensation for specific injuries under paragraph II (1) through (n), Part I, Veterans Regulation 1 (a) are increased to $309.00, $359.00 and $401.00, respectively. No increase is provided in the present rate of $47.00 per month under paragraph II (k), Part I, Veterans Regulation 1 (a) for the anatomical loss or loss of use of a creative organ, or one foot, or one hand, or both buttocks, or blindness of one eye, or in the rate of $67.00 payable for arrested tuberculosis under paragraph II (q), Part I, Veterans Regulation 1 (a).

(b) Section 2, Public Law 85-168 provides for similar increases in claims evaluated under the World War Veterans' Act, 1924, as amended. For dis

ability rated total under this act the rate is increased to $225.00 per month. The rate payable under section 202 (3) World War Veterans' Act, 1924, as amended, for the loss of use of both eyes is increased to $309.00 and the rate for loss of use of both eyes and one or more limbs or for double total permanent disability is increased to $401.00. The maximum rate payable for any combination of disability under this act is limited to $450.00. No increase in the statutory awards under section 202 (3) for the loss of use of a creative organ or one hand or foot, section 202 (5) for nurse or attendant, and section 202 (7) for arrested tuberculosis is provided in Public Law 85-168.

(c) Section 3, Public Law 85-168 amends Public Law 877, 80th Congress, as amended, to provide increases of compensation for veterans with service connected disabilities who have dependents. Rates based upon total disability are set forth therein and are applicable to wartime and peacetime service connected disability at the specific rates prescribed. For disability evaluated at less than 100 percent but not less than 50 percent, the additional allowance shall be in an amount having the same ratio to the amount specified in this section as the degree of disability bears to total disability. Such rates are not subject to the rounding off to the nearest dollar as provided in the rates payable under paragraph II (a) through (i), Parts I and II, Veterans Regulation 1 (a) above.

(d) Section 4, Public Law 85-168 provides for amendment to section 315, Public Law 85-56 in the rates of compensation payable as of January 1, 1958, which is the effective date of the last cited law. Section 5, Public Law 85-168 amends subsection 316 (a) (1) of the Veterans Benefit Act of 1957 to provided increased rates payable as additional allowances because of dependents under Public Law 877, 80th Congress, as amended.

(e) Section 6, Public Law 85-168 amends section 335, Public Law 85-56 effective January 1, 1958 by providing for the counting of fifty cents and over as a whole dollar. Section 335, Public Law 85-56 will on this date require the rounding off of amounts payable at peacetime rates to the nearest dollar including the present rate of $37.60 under paragraph II (k), Part II, Veterans Regulation 1 (a), and the present rate

of $53.60 under paragraph II (q) which are not increased under Public Law 85-168.

(f) Section 7, Public Law 85-168 amends section 336 of Public Law 85-56 by requiring the rounding off to the nearest dollar of the additional allowance paid for dependents as of January 1, 1958. No such provision is effective as to the rounding off of the wartime rate for dependency allowance at the present time or after the effective date of Public Law 85-56. Peacetime dependency allowances will not be rounded off as of October 1, 1957, but will be subject to such action on January 1, 1958.

(g) Section 2316 (b), Public Law 85-56 prohibits the reduction of any award when a veteran is entitled to a higher rate on the day preceding the effective date of Public Law 85-56 under laws in effect on that day except where there was fraud, clear and unmistakable error as to conclusion of fact or law, or misrepresentation of material facts. Therefore, under Public Law 85-56 those peacetime veterans whose awards are computed on dollars and cents will continue to receive the cents, if less than fifty, but the awards of veterans where fifty cents or more is involved will be rounded off to the next dollar. awards of veterans whose entitlement is solely under Public Law 85-56 will have their awards adjusted either upward or downward to the nearest dollar.

The

(h) Section 8, Public Law 85-168 provides "This Act shall take effect on the first day of the second calendar month which begins after the date of its enactment and sections 1 through 3 shall cease to be in effect January 1, 1958". The effective date of awards will be in accordance with the provisions of controlling regulations, provided that in no event will benefits under the cited act be awarded for any period prior to October 1, 1957. The increases provided shall be effective October 1, 1957, in claims pending or in an appellate status on August 27, 1957. In new claims filed on or after August 27, 1957, and prior to October 1, 1957, the increased rate will be effective October 1, 1957. (Instruction 1, Public Law 85-168)

(Sec. 5, 43 Stat. 608, as amended, sec. 2, 46 Stat. 1016, sec. 7, 48 Stat. 9; 38 U. S. C. 11a, 426, 707) [22 F. R. 7770, Oct. 1, 1957]

§3.1526 Adjustment of disability compensation rates. (a) Section 335, Public Law 85-56, is amended by section

6, Public Law 85-168, to provide for the counting of 50 cents and over as a whole dollar. This has the effect of rounding to the nearest dollar, all rates of compensation payable on the basis of peacetime service including the rate of $37.60 under section 315 (k) and the rate of $53.60 under section 315 (q), Public Law 85-56.

(b) Section 336, Public Law 85-56, is amended by section 7, Public Law 85-168, to provide that additional compensation payable for dependents in claims with peacetime entitlement be adjusted to the nearest dollar counting 50 cents and over as a whole dollar.

(c) Section 2316 (b), Public Law 85-56, states in part "Any person who is receiving compensation on the day before the effective date of this act under the laws in effect on that day and who is not entitled to compensation under this act or who is entitled to compensation at a higher rate under such laws than that to which he would be entitled under this act, shall, except where there was fraud, clear and unmistakable error as to conclusion of fact or law, or misrepresentation of material facts, continue to be paid the rate of compensation payable on the day before the effective date of this act, so long as the conditions warranting such payment under those laws continue. *

(d) Section 2301, Public Law 85-56, provides that this act shall take effect on January 1, 1958.

(e) Section 2316 (b) provides protection for those veterans in receipt of a greater amount of award on the day prior to the effective date of Public Law 85-56 and these awards will not be reduced solely because of the enactment of this law. This protection is according to the amount of award payable to the veteran on the effective day of Public Law 85-56 and does not preclude the reduction of an award by a downward adjustment to the nearest dollar when the additional cents payable are less than 50 cents subsequent to January 1, 1958, when there is a change in the veterans status resulting from amended rating action or a change in dependency status; included are instances where the award was written prior to January 1, 1958, but involving change in status after that date.

(f) Section 2301, Public Law 85-56, provides "This act shall take effect on

January 1, 1958." The effective date of awards will be in accordance with the provisions of controlling regulations, provided that in no event will benefits under the cited act be awarded for any period prior to January 1, 1958. In new claims filed on or after January 1, 1958, the increased rate will be effective January 1, 1958. (Instruction 1, Public Law 85-56)

[23. F. R. 325, Jan. 17, 1958]

§ 3.1527 Increase in disability compensation rate for certain blind veterans of World War I, World War II, Korean conflict, and peacetime service-(a) Scope. Section 1, Public Law 85-652, amends section 315 (m) of the Veterans' Benefits Act of 1957 by inserting immediately before, "or has suffered blindness in both eyes" the following: "or has suffered blindness in both eyes having only light perception."

(b) Effective date. Section 2, Public Law 85-652, makes the increased rate effective September 1, 1958.

(c) Adjudication procedures. Increase is payable from September 1, 1958, without necessity for claim for increase by or on behalf of the veteran. (Instruction 1, Public Law 85-652.)

[23 F. R. 8795, Nov. 13, 1958]

§3.1528 Instructions relating to the grant of additional aid and attendance allowance of $150 per month to certain severely service-connected disabled veterans during periods in which they are not hospitalized at Government expense-(a) Scope. Section 1 of Public Law 85-782 provides for the addition of subsection (r) to section 315 of Public Law 85-56, "Veterans Benefits Act of 1957," as follows:

(r) If any veteran, otherwise entitled to the compensation authorized under subsection (0) or the maximum rate authorized under subsection (p) is in need of regular aid and attendance he shall be paid, in addition to such compensation, a monthly aid and attendance allowance at the rate of $150 for all periods during which he is not hospitalized at Government expense. For the purpose of section 335, such allowance shall be considered as additional compensation payable for disability.

(b) Effects of the act. Section 1 of this act has the effect of providing additional compensation at the rate of $150 per month for wartime disability and $120 per month for peacetime disability to all veterans evaluated as totally disabled at the maximum rate payable

under subsection (o) and the maximum rate (subsection (n) plus independently ratable disability at 100 percent) under subsection (p) when the need for regular aid and attendance is established and during any periods when the veteran is not hospitalized at Government expense. When such need is one of the conditions establishing entitlement under subsection (0) or (p), the additional benefit under this act may nevertheless be paid.

(c) Effective date. Section 3 of Public Law 85-782 determines the effective date of this act to be October 1, 1958; section 1 will cease to be effective as of January 1, 1959, when Public Law 85-857 is for application. Entitlement is the same under both laws.

(d) Definition. "Hospitalized at Government expense" should be taken to mean hospitalized at the expense of the Federal Government, excluding maintenance by subdivisions of Government such as State, county or municipality. (Instruction 1, Public Law 85-782) [23 F. R. 9407, Dec. 5, 1958]

§3.1529 Title 38, United States Code, section 315, adjustment of disability compensation rates.

(a) Title 38 U. S. C. 315 (a) (2) provides that the amounts payable because of dependents shall be adjusted upward or downward to the nearest dollar, counting 50 cents and over as a whole dollar.

(b) Section 10, Public Law 85-857, states in part "Any individual receiving benefits as a veteran, or as the widow, child, or parent of a veteran, under public laws administered by the Veterans' Administration on December 31, 1958, shall, as long as entitlement under such laws continues, receive benefits under the corresponding provisions of Title 38, United States Code, thereafter, or benefits at the rate payable under such public laws, whichever will result in the greater benefit being paid to the individual *

(c) By virtue of 38 U.S.C. 315, effective January 1, 1959, the additional amount payable for dependency will be rounded to the nearest dollar with each group of dependents rounded separately (two parents are to be treated as two groups). This result will then be added to the basic rate of compensation to arrive at the total amount of compensation payable.

(d) Section 10, Public Law 85-857, provides protection for those veterans in receipt of a greater amount of award on the day prior to the effective date of Title 38, United States Code, and these awards will not be reduced solely because of the enactment of this code. This protection is accorded to the amount of award payable to the veteran on the effective date of Title 38, United States Code, and does not preclude the reduction of an award by a downward adjustment subsequent to January 1, 1959, where there is a change in the veteran's status resulting from amended rating action or a change in dependency status; including instances where the award was written prior to January 1, 1959, but involving change in status after that date.

(e) If in the course of any subsequent review of the case for any reason, it is determined that the automatic adjustment to a higher rate was erroneously made, an amended award will be made to show the correct rate payable, as of the date of last payment.

(f) Section 2, Public Law 85-857 provides "Except as otherwise provided in this act, this act shall take effect on January 1, 1959". The effective date of awards will be in accordance with the provisions of controlling Veterans Administration regulations: Provided, That in no event will benefits under the cited act be awarded for any period prior to January 1, 1959. In new claims filed on or after January 1, 1959, the new rate will be effective the date of award. (Instruction 1, Title 38, U. S. C., section 315, Public Law 85-857.)

[24 F.R. 15, Jan. 1, 1959] § 3.1530

Extension of veterans' disability and death benefits to or on behalf of dependent husbands and widowers of female veterans.

(a) Purpose. The following instructions are issued for the purpose of carrying out the provisions of Public Law 85-655 which are now contained in 38 U.S.C. 102(b). The act amended the Veterans' Benefits Act of 1957, effective August 14, 1958, with respect to disability compensation and pension to female veterans, dependency and indemnity compensation, death compensation and death pension.

(b) Content of law. This act added section 107 to Public Law 85-56 entitled "Dependent Husbands" which stated: "For the purposes of all laws administered by the Veterans' Administration,

the

(1) the term 'wife' includes the husband of any female veteran if such husband is incapable of self-maintenance and is permanently incapable of self-support due to physical or mental disability, and (2) the term "widow" includes widower of any female veteran if such widower is incapable of self-maintenance and was permanently incapable of selfsupport due to physical or mental disability at the time of the veteran's death."

(c) Effects of the act. The additional compensation provided a service-connected disabled male veteran on account of a wife under section 316, or 336, Public Law 85-56, as amended by Public Law 85-168, is made available to an otherwise eligible female veteran with a husband who meets the prescribed criteria. Widowers of female veterans are eligible for death compensation, dependency and indemnity compensation, or death pension if other requirements are met. The eligible husband of a female veteran is accorded the same status as that of a wife or dependent of a male veteran under the provisions of law such as those authorizing apportionment of benefits in certain circumstances, withholding or discontinuance of benefit payments during hospitalization, payment of benefits in the case of an incompetent veteran having no guardian, et cetera. The dependent husband is thus covered for apportionment under § 3.310 et seq.; and has the status of a wife with reference to reduction because of hospitalization or apportionment because of incarceration for purposes of §§ 3.255 and 3.255a.

(d) Relationship definition; proof and criteria. The term "wife" means a woman united to a male veteran in lawful wedlock. Section 3.49 correctly covers the subject of validity of marriage although the citation referring to 38 U.S.C 199 and 505a is no longer current, in view of repeals by Public Law 85-56. On and after January 1, 1959, the citation is 38 U.S.C. 103. The term "wife" includes the husband of any female veteran if such husband is incapable of self-maintenance and is permanently incapable of self-support due to physical or mental disability. The term "widow" includes the unremarried widower of any female veteran if such widower is incapable of self-maintenance and was permanently incapable of self-support due to physical or mental disability at the time of the veterans' death and if