The rates in this paragraph are also applicable in the case of one surviving parent who has remarried, computed on the basis of the combined income of the parent and spouse, if this would be a greater benefit than that specified in paragraph (a) of this section for one parent.

(e) Aid and attendance. The monthly rate of DIC payable to a parent under this section shall be increased by $108 if such parent is (1) a patient in a nursing home, or (2) helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person.

(f) Minimum rate. The monthly rate of DIC payable to any parent under this section shall not be less than $5.

[44 FR 45934, Aug. 6, 1979, as amended at 45 FR 31719, May 14, 1980]

§ 3.26 Section 306 and old-law pension annual income limitations.

(a) Section 306 pension income limitations.

(1) Veteran or surviving spouse with no dependents, $5,073.

(2) Veteran with no dependents in need of aid and attendance (38 U.S.C. 521(d), as in effect on December 31, 1978), $5,573.

(3) Veteran or surviving spouse with one or more dependents, $6,822.

(4) Veteran with one or more dependents in need of aid and attendance (38 U.S.C. 521(d), as in effect on December 31, 1978) $7,322.

(5) Child (no entitled veteran or surviving spouse), $4,145.

(b) Old-law pension income limitations.

(1) Veteran or surviving spouse without dependents or an entitled child, $4,440.

(2) Veteran or surviving spouse with one or more dependents, $6,405. [45 FR 31719, May 14, 1980]

§ 3.27 Automatic adjustment of benefit rates.

(a) Improved pension. Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of Title II of the Social Security

Act, the Veterans Administration shall, effective on the dates such increases become effective, increase by the same percentage each maximum annual rate of pension specified in § 3.23 and § 3.24. (38 U.S.C. 3112(a))

(b) Parents' dependency and indemnity compensation—(1) Maximum annual income limitation and maximum monthly rates. Whenever there is a cost-of-living increase in benefit amounts payable under section 215(i) of Title II of the Social Security Act, the Veterans Administration shall, effective on the dates such increases become effective, increase by the same percentage the maximum monthly rates of dependency and indemnity compensation for parents specified in § 3.25(a), (c) and (d), the monthly rate specified in § 3.25(e), and the annual income limitations prescribed in § 3.25(a), (c) and (d). (38 U.S.C. 3112(b)(1))

(2) Formula adjustment. Whenever there is an increase in the rates and income limitations applicable to parents' dependency and indemnity compensation under paragraph (b)(1) of this section, the Veterans Administration shall, effective on the date of such increase, adjust correspondingly the formulas for determining the rates of parents' dependency and indemnity compensation as specified in § 3.25(a) and (c) for a parent whose countable annual income is more than $800 but not more than the maximum specified therein, and in § 3.25(d) for a parent whose countable annual income is more than $1,000 but not more than the maximum specified therein. (38 U.S.C. 3112(b)(2)(A))

(c) Publishing requirements. Increases in pension rates and parents' dependency and indemnity compensation rates and income limitation made under this section shall be published in the FEDERAL REGISTER. (38 U.S.C. 3112(c)(1))

[44 FR 45934, Aug. 6, 1979]

§ 3.28 Automatic adjustment of section 306 and old-law pension income limitations.

Whenever the maximum rates of pension specified in § 3.23 are increased by reason of the provisions of

38 U.S.C. 3112, the following will be increased by the same percentage effective the same date:

(a) The maximum annual income limitations applicable to continued receipt of section 306 and old-law pension; and

in

(b) The dollar amount of a veteran's spouse's income specified § 3.262(b)(2) as excludable in determining the income of a veteran for section 306 pension purposes.

These increases shall be published in the FEDERAL REGISTER at the same time that increases in the rates specified in §3.23 and § 3.24 are so published. (Section 306, Pub. L. 95-588, 92 Stat. 2497).

[44 FR 45935, Aug. 6, 1979, as amended at 45 FR 31719, May 14, 1980]

CROSS REFERENCES: Section 306 and oldlaw pension annual income limitations. See § 3.26.

§ 3.29 Rounding.

Where the computation of an increase in improved pension rates under §§ 3.23 and 3.24 would otherwise result in a figure which includes a fraction of a dollar, the benefit rate will be adjusted to the next higher dollar amount. This method of computation will also apply to increases in old-law and section 306 pension annual income limitations under § 3.26, including the income of a spouse which is excluded from a veteran's countable income, and parents' dependency and indemnity compensation benefit rates and annual income limitations under § 3.25. (38 U.S.C. 3112(c)(2)).

[44 FR 45935, Aug. 6, 1979]

§ 3.30 Frequency of payment of improved pension.

(a) Monthly. Payment shall be made monthly if the annual rate payable is $120 or more.

(b) Quarterly. Payment shall be made every 3 months on or about March 1, June 1, September 1, and December 1, if the annual rate payable is at least $40 but less than $120.

(c) Semiannually. Payment shall be made every 6 months on or about June 1, and December 1, if the annual rate payable is at least $20 but less than $40.

(d) Annually. Payment shall be made annually on or about June 1, if the annual rate payable is less than $20.

(e) Payment of less than one dollar. Payments of less than $1 shall not be made.

[44 FR 45935, Aug. 6, 1979]

CROSS REFERENCE: Pension. See § 3.3(a)(3), (b)(4).

RELATIONSHIP

§ 3.50 Wife, widow or spouse.

a person

(a) Wife. "Wife" means whose marriage to the veteran meets the requirements of § 3.1(j).

(b) Widow. Except as provided in § 3.52, "widow" means a person whose marriage to the veteran meets the requirements of § 3.1(j) and who was the lawful spouse of the veteran at the time of the veteran's death and

(1) who lived with the veteran continuously from the date of marriage to the date of the veteran's death except where there was a separation which was due to the misconduct of, or procured by, the veteran without the fault of the spouse, and

(2) who has not remarried or (in cases not involving remarriage) has not since the death of the veteran and after September 19, 1962, lived with another person of the opposite sex and held herself (himself) out openly to the public to be the spouse of such other person. On and after January 1, 1971, the requirement of this paragraph (b)(1) is that she (he) be unmarried and not living with another person of the opposite sex and holding herself (himself) out openly to the public as the spouse of such other person. (38 U.S.C. 101(3); Pub. L. 94169; 89 Stat. 1013)

(c) Spouse and surviving spouse. "Spouse" means a person of the opposite sex who is a wife or husband and the term "surviving spouse" means a person of the opposite sex who is a widow or widower provided the marriage meets the requirements of §3.1(j) or, as to accrued benefits, § 3.52. (38 U.S.C. 101(31); Pub. L. 94169; 89 Stat. 1013)

[41 FR 18299, May 3, 1976]

§3.52 Marriages deemed valid.

Where an attempted marriage of a claimant to the veteran was invalid by reason of a legal impediment, the marriage will nevertheless be deemed valid if:

(a) The marriage occurred 1 year or more before the veteran died or existed for any period of time if a child was born of the purported marriage or was born to them before such marriage (see § 3.54(d)), and

(b) The claimant entered into the marriage without knowledge of the impediment, and

(c) The claimant cohabited with the veteran continuously from the date of marriage to the date of his or her death as outlined in § 3.53, and

(d) No claim has been filed by a legal surviving spouse who has been found entitled to gratuitous death benefits other than accrued monthly benefits covering a period prior to the veteran's death. (38 U.S.C. 103(a))

[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 1215, Feb. 9, 1962; 32 FR 13224, Sept. 19, 1967; 41 FR 18299, May 3, 1976]

CROSS REFERENCES: Definition, marriage. See § 3.205(c).

dence shows there was no separation due to the fault of the surviving spouse. Temporary separations which ordinarily occur, including those caused for the time being through fault of either party, will not break the continuity of the cohabitation.

(b) Findings of fact. The statement of the surviving spouse as to the reason for the separation will be accepted in the absence of contradictory information. If the evidence establishes that the separation was by mutual consent and that the parties lived apart for purposes of convenience, health, business, or any other reason which did not show an intent on the part of the surviving spouse to desert the veteran, the continuity of the cohabitation will not be considered as having been broken. State laws will not control in determining questions of desertion; however, due weight will be given to findings of fact in court decisions made during the life of the veteran on issues subsequently involved in the application of this section. [41 FR 18300, May 3, 1976]

§ 3.54 Marriage dates.

A surviving spouse may qualify for pension, compensation, or dependency and indemnity compensation if the marriage to the veteran occurred before or during his or her service or, if married to him or her after his or her separation from service, before the applicable date stated in his section.

(a) Pension. Death pension may be paid to a surviving spouse who was married to the veteran:

(1) One year or more prior to the veteran's death, or

(2) For any period of time if a child was born of the marriage, or was born to them before the marriage, or

(3) Prior to the applicable delimiting dates, as follows:

(i) Civil War-June 27, 1905. (ii) Indian wars—March 4, 1917. (iii) Spanish-American War-January 1, 1938.

(iv) Mexican border period and World War I-December 14, 1944. (v) World War II-January 1, 1957. (vi) Korean conflict-February 1, 1965.

(vii) Vietnam era-May 8, 1985.

(38 U.S.C. 532(d), 534(c), 536(c), 541(e); Pub. L. 91-588, 84 Stat. 1580)

(b) Compensation. Death compensation may be paid to a surviving spouse who, with respect to date of marriage, could have qualified as a surviving spouse for death compensation under any law administered by the Veterans Administration in effect on December 31, 1957, or who was married to the veteran:

(1) Before the expiration of 15 years after termination of the period of service in which the injury or disease which caused the veteran's death was incurred or aggravated, or

(2) One year or more, or

(3) For any period of time if a child was born of the marriage, or was born to them before the marriage. (38 U.S.C. 302)

(c) Dependency and indemnity compensation. (1) Dependency and indemnity compensation payable under 38 U.S.C. 410(a) may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran:

(i) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or

(ii) For 1 year or more, or

(iii) For any period of time if a child was born of the marriage, or was born to them before the marriage. (38 U.S.C. 404)

(2) In order for a surviving spouse to be entitled to benefits under section 410(b) of title 38, United States Code, in the same manner as if death is service connected, the marriage to the veteran shall have been for a period of not less than 2 years immediately preceding the date of the veteran's death. (See §3.22). The birth of a child does not change this requirement. (38 U.S.C. 410(b))

(d) "Child born". The term "child born of the marriage" means a birth on or after the date of the marriage on which the surviving spouse's entitlement is predicated. The term "born to them before the marriage" means a birth prior to the date of such marriage. Either term includes a fetus advanced to the point of gestation required to constitute a birth under the

law of the jurisdiction in which the fetus was delivered.

(e) More than one marriage to veteran. For periods commencing on or after January 1, 1958, where a surviving spouse has been married legally to a veteran more than once, the date of the original marriage will be used in determining whether the statutory requirement as to date of marriage has been met. (38 U.S.C. 103(b))

[26 FR 1567, Feb. 24, 1961, as amended at 27 FR 6498, July 10, 1962; 32 FR 13224, Sept. 19, 1967; 40 FR 16064, Apr. 9, 1975; 40 FR 48680, Oct. 17, 1975; 41 FR 18300, May 3, 1976; 44 FR 22718, Apr. 17, 1979]

§ 3.55 Terminated marital relationships.

(a) Remarriage of a surviving spouse or marriage of a child shall not bar the furnishing of benefits to such surviving spouse or to or on account of such child, if the marriage:

(1) Was void, or

(2) Has been annulled by a court having basic authority to render annulment decrees, unless it is determined by the Veterans' Administration that the annulment was obtained through fraud by either party or by collusion.

(b) On and after January 1, 1971, remarriage of a surviving spouse shall not bar the furnishing of benefits to such surviving spouse if the marriage: (1) Has been terminated by death, or

(2) Has been dissolved by a court with basic authority to render divorce decrees unless the Veterans Administration determines that the divorce was secured through fraud by the surviving spouse or by collusion.

(c) On and after January 1, 1971, the fact that a surviving spouse has lived with another person and has held herself (himself) out openly to the public as the spouse of such other person shall not bar the furnishing of benefits to her (him) after she (he) terminates the relationship.

(d) On and after January 1, 1971, the fact that benefits to a surviving spouse may previously have been barred because her (his) conduct or a relationship into which she (he) had entered had raised an inference or presumption that she (he) had remarried or had been determined to be open and notorious adulterous cohabitation,

or similar conduct, shall not bar the furnishing of benefits to such surviving spouse after she (he) terminates the conduct or relationship.

(e) On and after January 1, 1975, marriage of a child shall not bar the furnishing of benefits to or for such child if the marriage

(1) Has been terminated by death, or (2) Has been dissolved by a court with basic authority to render divorce decrees unless the Veterans Administration determines that the divorce was secured through fraud by either party or by collusion. (38 U.S.C. 103(d), (e); Pub. L. 93-527, 88 Stat. 1702)

[40 FR 16065, Apr. 9, 1975, as amended at 44 FR 22718, Apr. 17, 1979]

CROSS REFERENCE: Evidence. See § 3.207. § 3.56 [Reserved]

(ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or

(iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution.

(2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term "child" of the veteran also includes the following unmarried persons:

(i) A person who was adopted by the veteran between the ages of 18 and 23 years.

(ii) A person who became a stepchild of the veteran between the ages of 18 and 23 years and who is a member of the veteran's household or, was

a

member of the veteran's household at the time of the veteran's death.

(b) Stepchild. The term means a legitimate or an illegitimate child of the veteran's spouse. A child of a surviving spouse whose marriage to the veteran is deemed valid under the provisions of § 3.52, and who otherwise meets the requirements of this section is includ

ed.

(c) Adopted child. Except as provided in paragraph (e) of this section, the term means a child adopted pursuant to a final decree of adoption, a child adopted pursuant to an unrescinded interlocutory decree of adoption while remaining in the custody of the adopting parent (or parents) during the interlocutory period, and a child who has been placed for adoption under an agreement entered into by the adopting parent (or parents) with any agency authorized under law to so act, unless and until such agreement is terminated, while the child remains in the custody of the adopting parent (or parents) during the period of placement for adoption under such agreement. The term includes, as of the date of death of a veteran, such a child who:

(1) Was living in the veteran's household at the time of the veteran's death, and

(2) Was adopted by the veteran's spouse under a decree issued within 2 years after August 25, 1959, or the veteran's death whichever is later, and

(3) Was not receiving from an individual other than the veteran or the veteran's spouse, or from a welfare organization which furnishes services or assistance for children, recurring contributions of sufficient size to constitute the major portion of the child's support. (38 U.S.C. 101(4).)

(d) Definition of "child custody". The provisions of this paragraph are for the purpose of determining entitlement to improved pension under §§ 3.23 and 3.24.

(1) Custody of a child shall be considered to rest with a veteran, surviving spouse of a veteran or person legally responsible for the child's support if that person has the legal right to exercise parental control and responsibility for the welfare and care of the child. A child of the veteran residing with