Page images



tendance than prescribed in these

lations. $21.310 Rate of pursuit of a rehabilita- (4) Farm cooperative. If training tion program.

farm cooperative program is pro (a) Programs offered at educational in- by an educational institution, the stitutions. This section provides policy of pursuit shall be determined the for determining the full-time and part- as under $21.4270 for that type of time rate of pursuit of a rehabilitation ing. program by a veteran whose ability to (5) Course offered under contract. pursue a program has not been reduced a school or other entity furnishes by the effects of disability.

part of a vocational rehabilitation (1) Measuring full and part-time train- gram under contact with ing. VA will measure the full-time and school, VA will measure the cou part-time rate of pursuit of training of- courses as appropriate for the schi fered at educational institutions ac- other entity actually providing cording to the criteria found in training. $$ 21.4270 through 21.4275, except as pro- (b) Education or training not furi vided in paragraphs (a) (2) and (3) of by an educational institution. The this section.

lowing types of training which ar (2) Independent study course. (i) For furnished by an educational instit certain seriously disabled veterans de- (821.35(k)(3) may only be pursued scribed in subdivision (i)(A) of this sub- time: paragraph VA may measure the vet- (1) On-job training. Full-time tra eran's enrollment:

in an on-job program is the less (A) In an independent study course as the number of hours in the preva half-time or greater training, or

workweek for: (B) Both in independent study sub- (i) Journeyman employees in jects and subjects requiring class at- same job categories at the estal tendance on the basis of the combined ment where training is being prov training load when the number of cred- (ii) Other persons in on-job tra it hours of independent study equals or for the same or similar occupatio exceeds the number of other credit the facility where the veteran is t hours.

ing or at other facilities in the i (ii) To qualify for measurement de- ity. scribed in paragraph (a)(2)(i) of this (2) Farm cooperative training. If t section:

ing in a farm cooperative progra (A) The seriously disabled veteran provided by an individual instru must have disability or cir- the full-time rate of pursuit must cumstances which preclude regular at- the requirements of $21.126. tendance at an institution of higher (3) Independent instructor. The learning, and

time rate of pursuit for a veterani (B) Independent study must be a independent instructor program sound method for providing the train- meet the requirements of $21.146. ing necessary for restoring the vet- (4) Training in the home. The fulleran's employability.

rate for a training program provide (iii) In all other cases VA will meas- the veteran's home must meet th ure independent study according to the quirements of $21.146. provisions of $21.4280.

(5) Vocational course in a rehabiliti (3) Special school. If training is pur- facility or sheltered workshop. A sued in a special school, such as those tional ourse of training offered for persons with visual or hearing dis- rehabilitation facility or shelt abilities, the rate of pursuit will be workshop (821.35(k) (5) and (6)), wi measured under S$21.2470 through measured under provisions 21.4275 unless it is the established pol- $21.4270(b) for trade or technical icy of the school to measure the rate of accredited courses, unless it is the pursuit for full-time or particular level tablished policy of the facility to m or part-time training based upon fewer ure the rate of pursuit for full-tim semester, credit, or clock hours of at- a particular level of part-time trai


based upon fewer clock hours of attend- (Authority: 38 U.S.C. 3108(d))
ance than provided in that regulation.
(c) Combination and cooperative pro-

$ 21.312 Reduced work tolerance. grams. The rate of pursuit of a program (a) General. VA will consider that a which combines institutional training veteran with reduced work tolerance is and on job training will be measured as pursuing a rehabilitation program fullfollows:

time when the amount of time the vet(1) The institutional part will be as- eran is devoting to his or her program sessed under $821.4270 through 21.4275, is as great as the effects of his or her and

disability (service and nonservice-con(2) The on-the-job part will be as nected) will permit. sessed under paragraph (b)(1) of this (b) Pursuit of a program. A veteran section.

with reduced work tolerance may pur(d) Rehabilitative services. Measure sue a rehabilitation program when the ment of the rate of pursuit for veterans following conditions are met: in programs consisting primarily of (1) Reduced work tolerance has been services designed to evaluate and im- determined. prove physical and psychological func (2) Achievement of the goals of the tioning will be assessed under this program are reasonably feasible; paragraph.

(3) The IWRP (Individualized Written (1) The services assessed under this Rehabilitation Plan) or other plan proparagraph include:

vides for completion of the program (i) Evaluation and improvement of under Chapter 31. the rehabilitation potential of a vet- (c) Redetermination of work tolerance. eran for whom attainment of a voca- As necessary, but not less than once tional goal is reasonably feasible;

yearly, the veteran's work tolerance (il) Extended evaluation to determine will be reevaluated. The rate of pursuit whether attainment of a vocational required to meet the standard of fullgoal is reasonably feasible; or

time pursuit will be modified if there is (iii) A program of independent living either an increase or decrease in the services to enable a veteran to function work tolerance of the veteran. more independently in his or her fam (d) Payment of allowance. A veteran ily and community when attainment of with a reduced work tolerance will be à vocational goal is not reasonably fea paid a subsistence allowance, at the sible.

full-time rate for the type of program (2) Measurement of the rate of pur being pursued, when the veteran meets suit for services and programs named the standard for full-time pursuit esin paragraph (d)(1) of this section will tablished for him or her in the Plan. A

veteran with reduced work tolerance, (1) As provided in paragraph (a) of who elects benefits at the Chapter 34 this section for services furnished by rate, will have to meet normal attendeducational institutions; or

ance requirements for that chapter, (ii) According to the noneducational however. facility's customary criteria for full- (e) Determining work tolerance. A VA time and part-time pursuit. If the facil- physician will make all determinations ity does not have established criteria and redeterminations of work tolerfor full-time and part-time pursuit, or ance. services are being provided by more than one facility, the rate of pursuit

(Authority: 38 U.S.C. 3108(d)) will be assessed in the following man 821.314 Pursuit of training under speDer:

cial conditions. Clock hours per

A veteran is required to pursue a reRate of pursuit

month habilitation program at a rate which 120 or more.

meets the requirement for full- or partThree quarter time


time participation described in $821.310 60-89.

and 21.312. However, a veteran may pur30-59.

sue a rehabilitation program at a lesser Extended evaluation and independent living.

rate, if such pursuit is a part of the

[ocr errors]


veteran's plan. Subsistence allowance is not payable during such periods. (Authority: 38 U.S.C. 3108(d))

(3) The ending date specified $21.324.



(Authority: 38 U.S.C. 3108)

(d) Ending date for training and bilitation services. The ending dat training and rehabilitation sert will be the same as the termina date for subsistence allowance u paragraph (c) of this section, ex when:

(1) The ending date for a perio employment services is determ under provisions of $21.326;

(2) A later termination date is es lished in the veteran's plan;

$21.320 Awards for subsistence allow

ance and authorization of rehabili

tation services. Awards providing for payment of a subsistence allowance and authorization of services necessary for rehabilitation may be prepared when an IWRP (Individualized Written Rehabilitation Plan) or other plan has been completed and other requirements for entrance or reentrance into a rehabilitation program have been met.

(a) Commencing date of subsistence allowance. The commencing date of an award of subsistence allowance will be determined under the provisions of $21.322.

(b) Commencing date of authorization of training and rehabilitation services. The commencing date for authorization of training and rehabilitation services is the same as the effective date for awards for subsistence allowance under provisions of $21.322, except when:

(1) The commencing date for authorization of a program of employment services is determined under provisions of 8 21.326;

(2) An earlier commencement date is established in the veteran's plan or the veteran is entitled to earlier induction under $21.282;

(3) The veteran elects payment at the educational assistance allowance rate, in which case the commencing date of payment is determined under provisions applicable to commencement of payment under Chapter 30.

(Authority: 38 U.S.C. 3108 (a) and (f))

(C) Ending date of subsistence allowance. The ending date of an award for subsistence allowance will be the earliest of the following dates:

(1) The ending date provided in the veteran's IWRP or other plan;

(2) The ending date of a period of enrollment as certified by a training or rehabilitation facility;

(3) A veteran has elected paymen the educational assistance rate under Chapter 30. The ending dat the award is determined under reg tions applicable to termination training under Chapter 30.

(Authority: 38 U.S.C. 3108 (a) and (1)) [49 FR 40814, Oct. 18, 1984, as amended FR 4284, Jan. 30, 1989; 57 FR 57108, De 1992)

821.322 Commencing dates of sub

ence allowance. (a) General. VA will determine commencing date of an award or creased award of subsistence allow under this section. VA will not aut ize subsistence allowance for any riod prior to the earliest date for wl disability compensation is payable would be payable but for the veter receipt of retired pay.

(Authority: 38 U.S.C. 3108, 3113)

(b) Entrance or reentrance into tional rehabilitation, extended evalua! independent living services. Except the case of retroactive induction in rehabilitation program, as provide $21.282, the commencing date of award of subsistence allowance shal the earlier of:

(1) The date the facility requires veteran to report for prescribed act ties; or

(2) The date training or rehabil tion services begin.

(c) Increases for dependents (1) pendency erists at the time of entrano reentrance into a rehabilitation progi A veteran may have one or more pendents on or before the date he

she enters or reenters a rehabilitation the event is received within one year program. When this occurs, the fol- from the date of the event; lowing rules apply:

(B) Date notice is received of the (i) The effective date of the increase dependents's existence if evidence is rewill be the date of entrance or re

ceived within 1 year from the date VA entrance if:

requested the evidence and informed (A) VA receives the claim for the in

the veteran of the time limits during crease within one year of the date of

which this evidence must be submitted. entrance or reentrance; and

If VA fails to inform the veteran of

these time limits, the period for sub(B) VA receives any necessary evi

mission of the evidence is adjusted in dence within 1 year of the date VA re

accordance with $21.32 of this part quested the evidence and informed the

(C) Date VA receives evidence of the veteran of the time limits during which

dependent's existence if this date is this evidence must be submitted. If VA

more than one year after VA requested fails to inform the veteran of these

this evidence and informed the veteran time limits, the period of submission of

of the time limits during which this the evidence is adjusted in accordance

evidence must be submitted. If VA fails with $21.32 of this part.

to inform the veteran of the time lim(ii) The effective date of the increase

its, the period for submission of the will be the date VA receives notice of evidence is adjusted in accordance with the dependents existence if:

$21.32 of this part. (A) VA receives the claim for the in (ii) Date dependency arises-(3) Increase more than one year after the creased award not permitted. No indate of entrance or reentrance; and creased award for dependency may be

(B) VA receives any necessary evi- paid prior to the date the law permits dence within 1 year of the date VA re- benefits for dependents generally. quested the evidence and informed the veteran of the time limits during which (Authority: 38 U.S.C. 3108(b)) this evidence must be submitted. If VA

(d) Correction of military records. In acfails to inform the veteran of these

cordance with the facts found, but not time limits, the period for submission

earlier than the date the change, corof the evidence is adjusted in accord

rection, or modification was made by ance with $21.32 of this part;

the service department, if eligibility of (iii) The effective date of the increase a veteran arises as the result of correcwill be the date VA receives all nec tion or modification of military essary evidence if that evidence is re records under 10 U.S.C. 1552, or change, ceived more than one year from the correction or modification of a disdate VA requested the evidence and in charge or dismissal under 10 U.S.C. formed the veteran of the time limits 1553, or other competent military auduring which this evidence must be thority. submitted. If VA fails to inform the (e) Bar to benefits removed by VA. In veteran of these time limits, the period accordance with the facts found, but for submission of the evidence is ad- not earlier than the date the change justed in accordance with $21.32 of this was made by VA, if eligibility of a vetPart.

eran arises as the result of review of (2) Dependency arises after entrance or the evidence of record regarding the teentrance into a rehabilitation program. character of discharge by VA, when the If the veteran acquires a dependent veteran's discharge or dismissal was a after he or she enters or reenters a re- bar to benefits under 38 U.S.C. 5301. habilitation program, the increase will De effective on the latest of the fol- (Authority: 38 U.S.C. 3103(b)) lowing dates:

(f) Incarcerated veterans. (1) Date of (i) Date of claim. This term means the release from Federal, State, or local following listed in order of their appli penal institution of a veteran incarcer

ated for conviction of a felony (A) Date of the veteran's marriage, or (2) Earlier of the following dates in birth of his or her child, or his or her the case of a veteran residing in a halfMoption of a child, if the evidence of way house or participating in a work


[blocks in formation]

(Authority: 38 U.S.C. 5113)

CROSS-REFERENCE. See $21.260(c) for definition of dependents. (49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23, 1986; 52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990)


$ 21.324 Reduction

termination dates of subsistence allowance. (a) General. The effective date of the reduction of the amount paid or termination of payment of subsistance allowance will be the earliest of the dates specified in this section. If an award is reduced, the reduced rate will be effective the day following the date of termination of the greater benefit.

(b) Death of a veteran. Date of death, if death occurs while the veteran is in attendance or authorized leave status; otherwise date of last attendance.

(c) Death of a dependent. (1) Before October 1, 1982. Last day of the calendar year in which death occurs, unless the veteran's program is terminated earlier under other provisions.

(Authority: 38 U.S.C. 5112(b), 5113)

(2) Age 18. Day preceding the 18th birthday.

(3) School attendance.

(i) Last day of the month in the child ceases attending school;

(ii) The day preceding the child birthday, whichever is earlier.

(4) Helplessness. Last day of month in which 60 days has p from VA's notice to the payee tha child's helplessness has ceased.

(f) Interrupted, rehabilitation t point of employability, independent program completed, and ertended er tion completed status. Last day tendance, or approved leavest whichever is applicable.

(Authority: 38 U.S.C. 5113)

(2) After September 30, 1982. Last day of the month in which death occurs unless discontinuance is required at an earlier date under other provisions.

(Authority: 38 U.S.C. 5113)

(g) Discontinued. Last day of at ance or approved leave status, w ever is applicable, except as follow

(1) If VA places the veteran in continued” status following the eran's withdrawal from all co with nonpunitive grades or follo his or her completion of all co with nonpunitive grades and the manager does not find mitigating cumstances, VA will terminate sul ence allowance effective:

(i) The first date of the term, or

(ii) December 1, 1976, whichevi later.

(Authority: 38 U.S.C. 5112(b), 5113)

(d) Divorce-(1) Before October 1, 1982. Last day of the calendar year in which divorce occurs, unless the veteran's

« PreviousContinue »