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by the Veterans Benefits Office, Wash- evidence of 90 days creditable service, ington, D. C.
such as a service department record of (Paragraph (b) amended, 23 F. R. 1213, Feb. hospitalization for 90 days for a line of 27, 1958)
duty condition, award action otherwise § 3.33 Value of service records for
in order may be had without awaiting
return of VA Form 3101.
CODIFICATION: $ 3.33 was revised, 28 F. R. tion in regard to discharge, with the view
1214, Feb. 27, 1958. Subsequently, paragraph to making compensation payments, if
(b) was amended to read as set forth above,
23 F.R. 8035, Oct. 17, 1958.
PROOF OF RELATIONSHIP AND
$ 3.57 Conditions which determine as credible evidence: an actual certifi
dependency. cate of discharge; an authoritative (b) Sources of income. (1) In deternotice from the respective service de- mining the amount of income, conpartments as to the facts of such dis- sideration will be given to (i) net income charge; or lastly, any copy or abstract from property owned, or business operof the certificate of discharge which has ated, by the mother or father; (ii) been certified by a notary public or any earnings of the mother or father and other person who has the authority other members of their family under under law to administer oaths. In any legal age; (iii) actual contributions of case in which such evidence or a photo- any character to the family expenses by stat of the certificate of discharge is re- the adult members; (iv) old age and ceived, it will be accepted as authoritative survivors' insurance and disability inproof of the data shown therein, for the surance benefits under Title II of the purpose of making awards of disability or Social Security Act; (v) family allowdeath compensation. These data need ances authorized by service personnel. not be verified where they alone are sufficient to determine entitlement to (3) In determining dependency, disability or death compensation, unless amounts received from the following there is some reason to question the named sources, by the father or mother genuineness of the document or accuracy or other member of the family, will be of the information contained therein. disregarded, viz., (i) any payments beThis does not preclude the securing of cause of disability, age, or death under additional information which may not laws administered by the Veterans Adbe disclosed on the certificate of dis- ministration; (ii) as designated benecharge or copy.
ficiary or otherwise of any insurance (b) The evidence enumerated in para
under laws administered by the Veterans graph (a) of this section will not be ac- Administration; (iii) payments of adcepted as establishing the period of justed compensation; (iv) payments of service of a veteran for the purpose of
the six months' death gratuity; (v) paymaking awards of disability or death ments of mustering-out pay; (vi) dongpension except in those cases where the
tions or assistance from charitable veteran was discharged for a service- sources (including old age assistance); connected disability. Prior to making
(vii) annuities based on retired or rean award of disability or death pension tainer pay under chapter 73 of Title 10 based on service of 90 days or more,
of the United States Code (formerly the specific request will be made of the ap
Uniformed Services Contingency Option propriate service department on VA Act); (viii) payments of bonus or Form 3101 for a complete statement of
similar cash gratuity by any state, terriservice showing the time spent on an tory, possession, or commonwealth of industrial, agricultural, or indefinite
the United States, or the District of furlough; time lost on absence without
Columbia, based on service in the Armed leave (without pay); under arrest (with
Forces of the United States. out acquittal); in desertion and while (4) In addition to considering income undergoing sentence of court-martial: of a father or mother, consideration will Provided, That where available case file be given to the corpus of such claimant's evidence establishes service of nine estate if under all the circumstances it is months or more, or there is substantial reasonable that the same or some part
this section, the amounts stated are not controlling. Each claim in such cases will be adjudicated under the rules provided in this section without regard to paragraph (f) of this section.
(h) Foreign residents. Claims of parents residing in foreign countries will be adjudicated under the rules provided in this section without regard to paragraph (e) or (f) of this section. [Paragraphs (f), (g), and (h) added, 23 F. R. 3689, May 29, 1958] ESTABLISHMENT OF SERVICE CONNECTION AND APPLICATION OF RATING PRINCIPLES
SERVICE CONNECTION $ 3.86 Chronic and tropical diseases under Public Law 2, 73d Congress, as amended, or Public Law 85–56. (a) The service connection of chronic diseases under paragraph I (c), Part I, Veterans Regulation 1 (a), as amended, pursuant to Public Law 2, 73d Congress, or sections 301 and 313, Public Law 85–56, is restricted to the following:
(b) The service connection of tropical diseases under Veterans Regulation 1 (a), Part I, paragraph I (c), and Part II, paragraph I (d), or sections 301, 313 (2) and 334 (a), Public Law 85–56, is restricted to the following: (Effective June 24, 1948, unless otherwise indicated.)
(d) Remarriage of parent. Dependency of a parent shall not be denied solely because of remarriage. (See $ 4.62 of this chapter.)
(e) Prima facie dependency prior to January 1, 1958. (1) In the absence of evidence indicating the contrary, dependency will be held to exist for periods prior to January 1, 1958, when the monthly income from sources proper to consider does not exceed:
(i) $105 for a mother or father (not living together).
(ii) $175 for a mother and father (liying together).
(iii) The amounts stated in subdivision (i) or (ii) of this subparagraph plus $45 for each additional member of the family whose support is to be considered under the criteria indicated in paragraphs (a) and (b) of this section. It must be definitely understood that the amounts stated are not controlling in any case but are to be used only as prima facie evidence. Each claim is subject to adjudication upon the facts thereof in the light of the governing legal principles summarized in this section. (Paragraphs (d) and (e) amended, 23 F. R. 3689, May 29, 1958)
(f) Conclusive dependency after December 31, 1957. Dependency of a parent will not be denied for any period after December 31, 1957, where the monthly income for a mother or father, not living together does not exceed $105, or where the monthly income for a mother and father living together does not exceed $175, plus, in either case, $45 for each additional member of the family whom the father or mother is under a moral or legal obligation to support. This paragraph does not apply in the case of a parent who does not reside in the United States, its territories, commonwealths, or possessions.
(g) Income in excess of specified amounts after December 31, 1957. Where the monthly income of a mother or father, or both, exceeds the applicable amounts specified in paragraph (f) of
(c) No conditions other than those listed in paragraph (a) of this section will be considered chronic diseases except upon approval by the Administrator of Veterans Affairs. For the purposes of determining the existence of a compensable degree active tuberculosis within 3 years of discharge or the date prior to which a disability must have been incurred as provided in Veterans Regulation 1 (a), as amended, or sections 101 (6), (7), (8), and (9) and 301 (2), Public Law 85–56, whichever is the earlier, active pulmonary tuberculosis diagnosticated by approved methods during the fourth year will be held to have preexisted the diagnosis 6 months in minimal (incipient) cases; 9 months in moderately advanced cases; and 12 months in far advanced cases.
(2) Tuberculous pleurisy and endobronchial tuberculosis fall within the category of pulmonary tuberculosis. Either will be held incurred in service as provided by paragraph I (c), Part I, Vet
erans Regulation 1 (a), as amended, or losis) from active service during a period
(i) When service connection is granted sion of presumption 6 months beyond the
under paragraph I (d), Part II, Veterans 3-year period will be September 5, 1958,
Regulation 1 (a), as amended, or section the date of approval of this subpara
334, Public Law 85-56, for the tropical graph.
diseases, resultant disorders, or diseases (3) When, in a case in which prior originating because of therapy adminisactivity of pulmonary or nonpulmonary tered in connection with such diseases tuberculosis has been satisfactorily es- or as a preventative thereof, listed in tablished in accordance with $ 3.133, with paragraph (b) of this section, the effecevidence as to the present conditi tive date of evaluation of the disability establishing inactivity or arrest, without, will be in accordance with $ 3.148 (a) however, evidence to establish activity but not prior to June 24, 1948, where or inactivity over the intervening period, service connection is granted pursuant activity of the disease will be presumed to paragraph I (d), Part II, Veterans for 1 year only, following the last date Regulation 1 (a), as amended, or not of activity established by the evidence. prior to January 1, 1958, where service This subparagraph is not for application connection is granted pursuant to Public to running awards, but is intended to Law 85–56, and when claim is filed more apply only to new claims filed after the than 1 year after date of separation period of activity, and reopened claims. from service, notation will be made of The beginning date of graduated ratings the items of evidence showing the existfor arrested tuberculosis will be the day ence of the disease within the 1-year following expiration of this 1-year period. period.
(e) Unstable lesions on comparative (j) The effective date of an award study of X-ray films within the presump- based upon the foregoing provisions will tive period for the degree of advance- be in accordance with $ 3.212: Provided, ment (paragraph (c) of this section)
That no award for bronchiectasis, calculi will be taken as establishing service con- of the kidney, bladder, or gallbladder, nection for active pulmonary tubercu- cirrhosis of the liver, coccidioidomycosis, losis subsequently diagnosed by approved osteomalacia, Raynaud's disease, scleromethods, including physical examina- derma, tumors of the peripheral nerves, tion: Provided, That no percentage peptic ulcers (gastric or duodenal), servevaluation will be assigned prior to the ice connected under paragraph I (c), date of such subsequent diagnosis or Part I, Veterans Regulation 1 (a), as other evidence of clinical activity: Pro- amended, or section 313, Public Law vided further, That as to active pul- 85-56, or the tropical diseases and remonary tuberculosis service-connected sultant disorders or diseases originating under this paragraph, the evaluation because of therapy administered in conwill not be prior to February 26, 1951. nection with such diseases or as a pre
ventative thereof, listed in paragraph (b) (h) Where service connection is
of this section, service connected under granted under paragraph I (c), Part I,
paragraph I (c), Part I, or paragraph I Veterans Regulation 1 (a), as amended,
(d), Part II, Veterans Regulation (a), or section 313, Public Law 85–56, the
as amended, or section 313 or section 334, effective date of evaluation of disability
Public Law 85–56, shall be effective prior will be in accordance with $ 3.148 (a).
to June 24, 1948, or January 1, 1958, When a claim is filed more than 1 year
where service connection is granted purafter date of separation (2 years for suant to Public Law 85–56: Provided multiple sclerosis; 3 years for tubercu- further, That no award for active pul
monary tuberculosis, multiple sclerosis,
DISALLOWANCE AND AWARDS or nonpulmonary tuberculosis, service connected under paragraph I (c), Part I,
$ 3.212 Effective dates of awards of Veterans Regulation 1 (a), as amended
disability compensation. by Public Laws 573, 81st Congress, 174, (d) (1) The effective date of an 82d Congress, and 241, 83d Congress, now award of disability compensation or pensection 313, Public Law 85–56, shall be sion (original or amended) to or for a made effective prior to June 23, 1950, veteran who has been issued an honorOctober 12, 1951, or August 8, 1953, able discharge pursuant to the findings respectively.
of a Department of the Army, Depart
ment of the Air Force, Treasury DepartCODIFICATION: In $ 3.86, the headnote, the introductory paragraphs of paragraphs (a)
ment, or Department of the Navy Board and (b), and paragraphs (c), (d) (2), (e),
of Review, under section 301, Public Law (h), (1), and (1) were amended; paragraph
346, 78th Congress, will be the date au(d) (3) was deleted; and former paragraph thorized by the law under which pension (d) (4) was redesignated (d) (3), 23 F. R. or compensation is payable but not prior 6834, Sept. 5, 1958.
to the date of the finding of the board
of review or, if the finding was approved SERVICE CONNECTION FOR DISABILITY OR
by the secretary of the service departe DEATH THE RESULT OF EXAMINATIONS,
ment concerned, the date of
such TRAINING, HOSPITALIZATION, OR MEDICAL
approval. OR SURGICAL TREATMENT
(2) (i) In those cases where the claim 8 3.123 Initial determinations and ad- for disability compensation or pension judicative action under section 31, Public is reopened within one year from August Law 141, 73d Congress, as amended by 1, 1956, under section 501 (u), Public section 12, Public Law 866, 76th Congress, Law 881, 84th Congress, the effective date and under paragraph 4, Part VII, Veter- of an award to or for a veteran who has ans Regulation 1 (a), as amended (38 had his military or naval record corU.S. C. ch. 12A), Compensation will be rected pursuant to section 207, Public payable only when it is determined that Law 601, 79th Congress, as amended by the disability or additional disability or Public Law 220, 82d Congress, will, if death resulted from disease or injury, otherwise in order, be the date on which or an aggravation of an existing disease the application was filed for correction or injury, suffered as a result of training, of the military or naval record or the hospitalization, medical or surgical treat- date of filing of the original claim for ment, or examination under authority of Veterans Administration benefits, whichany of the laws granting monetary or ever is the later, but in no event prior other benefits to World War veterans. to August 2, 1946. Where the claim with The term "hospitalization" as used in the Veterans Administration is reopened this section includes transportation of under the last cited law on and after a patient who is being transported under August 2, 1957, payments may, if otherthe auspices, or by order of, the Veterans wise in order, be made from the date on Administration to or from one of its hos- which the application was filed for corpitals (or between hospitals) whether by rection of the military or naval records a Veterans Administration employee or or the date of filing of the reopened by an agent or contractor engaged by the claim for Veterans Administration beneVeterans Administration. If the dis- fits, whichever is later. ability resulted from transportation (ii) In original or pending claims, while in a hospitalized status, compensa- compensation will be payable from the tion will be payable only where the injury date the application was filed for coror death proximately resulted from the rection of military or naval records if carelessness, negligence, lack of proper the claim is filed within one year from skill, error in judgment, etc., of an em- the date of separation from service. If ployee of the Veterans Administration. the claim for compensation is filed more The following principles will be observed: than one year after the date of separa(Sec. 31, 48 Stat. 526, sec. 12, 54 Stat. 1197, tion from service, compensation will be sec. 2, 57 Stat. 43, as amended; 38 U. S. C. payable from the date of claim or the 501a, 501a-1, ch. 12A) Introductory text date the application was filed for coramended, 22 F. R. 951, Feb. 15, 1957)
rection of military or naval records, whichever is ine later. In original or
ANCE AND AWARE
ve dates of dret
the date of su
pending claims for pension, benefits will be payable from the date of the claim for pension or the date the application was filed for correction of military or naval records, whichever is the later.
(3) When corrections as to character of discharge, active duty status, line of duty, or willful misconduct are administratively made by the service departments, other than through boards of review or corrections, based on new evidence or change in policy and views, or both, the award may not be made effective prior to the date of the issuance of the corrected report or the date of the recertification. (Paragraph (d) amended, 22 F. R. 5685, July 18, 1957; 22 F. R. 6095, Aug. 2, 1957)
cases where the ci pensation or pers ne year from Aun tion 501 (u), Puli ess, the effective de or a veteran who b r naval record of
section 207, Pubi ress, as amended d Congress, will, e the date on whic
filed for correcte naval record or the
original claim tv ion benefits, which
in no event prio here the claim with tration is reopened law on and after ents may, if othere from the date on was filed for cor
or naval records of the reopened ninistration bene
That where the benefit is received by a former worker based on his own employment no part of such payments will be considered "annual income" until the full amount of his personal contribution (as distinguished from amounts contributed by the employer and not by the worker) has been received by him: And provided further, That such benefits received by a widow on the basis of her husband's employment will be considered as annual income as received. This subparagraph contemplates that the entire amount of the worker's annuity following retirement will be applied each year to amortize the cost of such annuity, after which the entire annuity will be considered as income. However, any person entitled to annuity from the Civil Service Retirement and Disability Fund, annuity or pension from the Railroad Retirement Board, relief or retirement compensation from the District of Columbia under the act of September 1, 1916, as amended, or retirement pay as a member of the former Lighthouse Service under the act of June 20, 1918 (Public Law 174, 65th Cong, as amended) may decline to accept all or any part of such annuity, pension, relief or retirement compensation, or retirement pay by a waiver signed and fled with the Commission, Railroad Retirement Board, the Commissioners of the District of Columbia or the Secretary of the Treasury. Such waiver may be revoked in writing at any time, but no payment of the annuity or retirement pay waived shall be made covering the period during which such waiver was in effect.
(7) Social security benefits. (Federal Old Age and Survivors' Insurance and disability insurance benefits are subject to the proviso contained in subparagraph (6) of this paragraph.) (Subparagraphs (6) and (7) amended, 28 F. R. 362, Jan. 21, 1958)
$ 3.228 Computation of annual income for the purposes of Part III, Veterans Regulation 1 (a) (38 U. S. C. ch. 12A), or section 1 (c) of Public Law 198, 76th Congress (act of July 19, 1939), as amended by section 11, Public Law 144, 78th Congress, and Public Law 357, 82d Congress.
(b) Benefits excluded from computation. .
(7) Annuities received under Chapter 73 of Title 10 of the United States Code (formerly the Uniformed Services Contingency Option Act of 1953) will not be considered income. [Subparagraph (7) amended, 23 F. R. 362, Jan. 21, 1958]
pending claims, ayable from the as filed for cornaval records if 7 one year from From service. If cion is filed more
date of separapensation will be
of claim or the as filed for cor- naval records, T. In original or
(12) A bonus or other similar cash gratuity by any State based on service in the Armed Forces of the United States. The term "State” means each of the several States, Territories and possessions of the United States, the District of Columbia and the Commonwealth of Puerto Rico. This subparagraph applies to all determinations of annual income made on or subsequent to September 7, 1957, the effective date of the law (Public Law 85–311). (Subparagraph (12) added, 23 F. R. 362, Jan. 21, 1958)
(c) Income included in computation.
(6) Civil service retirement benefits, Federal Old Age and Survivors' Insurance, disability insurance under the social security program, railroad retirement benefits, or retirement benefits paid under a State, municipal, or private business or industrial plan: Provided,
§ 3.255a Discontinuance and recommencement of pension to veteran who is confined in a penal institution for more than 60 days after conviction of a felony or misdemeanor (Public Law 85-24, act of April 25, 1957, sec. 405, Public Law 85-56). (a) Where any veteran in receipt of pension under a public or private law administered by the Veterans Administration is imprisoned in a Federal, State or local penal institution for more than 60 days as the result of conviction of a felony or misdemeanor, such