such disability was not incurred or aggravated, or that the death did not result from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

(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 or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. 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.

(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.

(Authority: 38 U.S.C. 105)

NOTE: See §3.1(y)(2)(iii) for applicability of in line of duty in determining former prisoner of war status.

or

(n) Willful misconduct means an act involving conscious wrongdoing known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of laws administered by the Department of Veterans Affairs.

(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. (Se §§ 3.301, 3.302.)

(0) Political subdivision of the Unite States includes the jurisdiction define as a State in paragraph (1) of this se tion, and the counties, cities or m nicipalities of each.

(p) Claim-Application means a form or informal communication in writin requesting a determination of entitl ment or evidencing a belief in entitl ment, to a benefit.

(q) Notice means written notice se to a claimant or payee at his or h latest address of record.

t

(r) Date of receipt means the date which a claim, information or eviden was received in the Department of Ve erans Affairs, except as to specific pr visions for claims or evidence receiv in the State Department (§3.108), or the Social Security Administrati (§§ 3.153, 3.201), or Department of D fense as to initial claims filed at prior to separation. However, Under Secretary for Benefits may tablish, by notice published in the FE ERAL REGISTER, exceptions to this ru using factors such as postmark or t date the claimant signed the C respondence, when he or she det mines that a natural or man-made i terference with the normal channe through which the Veterans Benef Administration ordinarily receives co respondence has resulted in one more Veterans Benefits Administrati offices experiencing extended delays receipt of claims, information, or e dence from claimants served by the fected office or offices to an exte that, if not addressed, would adverse affect such claimants through no fau of their own.

(Authority: 38 U.S.C. 501(a), 512(a), 5110)

(s) On the borders thereof means, wi regard to service during the Mexic border period, the States of Arizor California, New Mexico, and Texas, a the nations of Guatemala and Briti Honduras.

(Authority: 38 U.S.C. 101(30))

(t) In the waters adjacent there means, with regard to service duri the Mexican border period, the wate (including the islands therein) whi

are within 750 nautical miles (863 statute miles) of the coast of the mainland of Mexico.

(Authority: 38 U.S.C. 101(30)

(u) Section 306 pension means those disability and death pension programs in effect on December 31, 1978, which arose out of Pub. L. 86-211; 73 Stat. 432.

(v) Old-Law pension means the disability and death pension programs that were in effect on June 30, 1960. Also known as protected pension, i.e. protected under section 9(b) of the Veteran's Pension Act of 1959 (Pub. L. 86211; 73 Stat. 432).

(w) Improved pension means the disability and death pension programs becoming effective January 1, 1979, under authority of Pub. L. 95-588; 92 Stat. 2497.

(x) Service pension is the name given to Spanish-American War pension. It is referred to as a service pension because entitlement is based solely on service without regard to nonservice-connected disability, income and net worth.

(Authority: 38 U.S.C. 1512, 1536)

(y) Former prisoner of war. The term former prisoner of war means a person who, while serving in the active military, naval or air service, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force. (1) Decisions based on service department findings. The Department of Veterans Affairs shall accept the findings of the appropriate service department that a person was a prisoner of war during a period of war unless a reasonable basis exists for questioning it. Such findings shall be accepted only when detention or internment is by an enemy government or its agents.

(2) Other decisions. In all other situations, including those in which the Department of Veterans Affairs cannot accept the service department findings, the following factors shall be used to determine prisoner of war status:

(i) Circumstances of detention or internment. To be considered a former prisoner of war, a serviceperson must have been forcibly detained or interned under circumstances comparable to those under which persons generally

have been forcibly detained or interned by enemy governments during periods of war. Such circumstances include, but are not limited to, physical hardships or abuse, psychological hardships or abuse, malnutrition, and unsanitary conditions. Each individual member of a particular group of detainees or internees shall, in the absence of evidence to the contrary, be considered to have experienced the same circumstances as those experienced by the group.

(ii) Reason for detainment or internment. The reason for which a serviceperson was detained or interned is immaterial in determining POW status, except that a service person who is detained or interned by a foreign government for an alleged violation of its laws is not entitled to be considered a former POW on the basis of that period of detention or internment, unless the charges are a sham intended to legitimize the period of detention or internment.

(3) Central Office approval. The Director of the Compensation and Pension Service, VA Central Office, shall approve all VA regional office determinations establishing or denying POW status, with the exception of those service department determinations accepted under paragraph (y)(1) of this section.

(4) In line of duty. The Department of Veterans Affairs shall consider that a serviceperson was forcibly detained or interned in line of duty unless the evidence of record discloses that forcible detainment or internment was the proximate result of the serviceperson's own willful misconduct.

(5) Hostile force. The term hostile force means any entity other than an enemy or foreign government or the agents of either whose actions are taken to further or enhance anti-American military, political or economic objectives or views, or to attempt to embarrass the United States.

(Authority: 38 U.S.C. 101(32))

(z) Nursing home means

(1) Any extended care facility which is licensed by a State to provide skilled or intermediate-level nursing care,

§3.2 Periods of war.

This section sets forth the beginning and ending dates of each war period beginning with the Indian wars. Note that the term period of war in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542 means all of the war periods listed in this section except the Indian wars and the Spanish-American War. See §3.3(a)(3) and (b)(4)(i).

(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.

(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 vet eran served with the United State military forces in Russia, the endin date is April 1, 1920. Service after No vember 11, 1918 and before July 2, 192 is considered World War I service if th veteran served in the active military naval, or air service after April 5, 191 and before November 12, 1918.

(d) World War II. December 7, 194 through December 31, 1946, inclusive. the veteran was in service on Decembe 31, 1946, continuous service before Jul 26, 1947, is considered World War service.

(e) Korean conflict. June 27, 195 through January 31, 1955, inclusive.

(f) Vietnam era. The period beginnir on February 28, 1961, and ending c May 7, 1975, inclusive, in the case of veteran who served in the Republic Vietnam during that period. The peric beginning on August 5, 1964, and endir on May 7, 1975, inclusive, in all othe

cases.

(Authority: 38 U.S.C. 101(29))

(g) Future dates. The period beginnin on the date of any future declaration war by the Congress and ending on date prescribed by Presidential procla mation or concurrent resolution of th Congress.

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

(h) Mexican border period. May 9, 191 through April 5, 1917, in the case of veteran who during such period serve in Mexico, on the borders thereof, or i the waters adjacent thereto.

(Authority: 38 U.S.C. 101(30))

(i) Persian Gulf War. August 2, 1990, through date to be prescribed by Presidential proclamation or law.

(Authority: 38 U.S.C. 101(33))

[26 FR 1563. Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967; 36 FR 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26, 1975; 44 FR 45931, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR 35422, July 1, 1997]

$3.3 Pension.

(a) Pension for veterans-(1) Service pension; Spanish-American War. A benefit payable monthly by the Department of Veterans Affairs because of service in the Spanish-American War. Basic entitlement exists if a veteran:

(i) 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 adjudged 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.

: (Authority: 38 U.S.C. 1512)

(2) Section 306 pension. A benefit payable monthly by the Department of Veterans Affairs because of nonserviceconnected disability or age. Basic entitlement exists if a veteran:

(i) 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 during different war periods, including service during the Spanish-American War (Pub. L. 87-101, 75 Stat. 218; Pub. L. 90-77, 81 Stat. 178; Pub. L. 92-198, 85 Stat. 663); or

(ii) Served continuously for a period of 90 consecutive days or more and such period ended during the Mexican border period or World War I, or began or ended during World War II, the Korean conflict or the Vietnam era (Pub. L. 87-101, 75 Stat. 218; Pub. L. 88-664, 78 Stat. 1094; Pub. L. 90-77, 81 Stat. 178; Pub. L. 91-588, 84 Stat. 1580; Pub. L. 92198, 85 Stat. 663; Pub. L. 94-169, 89 Stat. 1013; Pub. L. 95-204, 91 Stat. 1455); or

(iii) Was discharged or released from such wartime service, before having served 90 days, for a disability adjudged service connected without the 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

(iv) Is permanently and totally disabled (a) from nonservice-connected disability not due to the veteran's own willful misconduct or vicious habits, or (b) by reason of having attained the age of 65 years or by reason of having become unemployable after age 65; and

(v)(a) Is in receipt of section 306 pension or (b) has an application for pension pending on December 31, 1978, or (c) meets the age or disability requirements for such pension on December 31, 1978, and files a claim within 1 year of that date and also within 1 year after meeting the age or disability requirements.

(vi) Meets the income and net worth requirements of 38 U.S.C. 1521 and 1522 as in effect on December 31, 1978, and all other provisions of title 38, United States Code, in effect on December 31, 1978, applicable to section 306 pension.

NOTE: The pension provisions of title 38 U.S.C., as in effect on December 31, 1978, are available in any VA regional office.

(3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). A benefit payable by the Department of Veterans Affairs to veterans of a period or periods of war because of nonservice-connected disability or age. The qualifying periods of war for this benefit are the Mexican border period, World War I, World War II, the Korean conflict, the Vietnam era and the Persian Gulf War. Payments are made monthly unless the amount of the annual benefit is less than 4 percent of the maximum annual rate payable to a veteran under 38 U.S.C. 1521(b), in which case payments may be made less frequently than monthly. Basic entitlement exists if a veteran:

(i) Served in the active military, naval or air service for 90 days or more during a period of war (38 U.S.C. 1521(j)); or

(ii) Served in the active military, naval or air service during a period of

war and was discharged or released from such service for a disability adjudged service-connected without presumptive provisions of law, or at 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. 1521(j)); or

(iii) Served in the active military, naval or air service for a period of 90 consecutive days or more and such period began or ended during a period of war (38 U.S.C. 1521(j)); or

(iv) Served in the active military, naval or air service for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war (38 U.S.C. 1521(j)); and

(v) Meets the net worth requirements under $3.274 and does not have an annual income in excess of the applicable maximum annual pension rate specified in §3.23; and

(vi)(A) Is age 65 or older; or

(B) Is permanently and totally disabled from nonservice-connected disability not due to the veteran's own willfull misconduct. For purposes of this paragraph, a veteran is considered permanently and totally disabled if the veteran is any of the following:

(1) A patient in a nursing home for long-term care because of disability; or (2) Disabled, as determined by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner; or

(3) Unemployable as a result of disability reasonably certain to continue throughout the life of the person; or

(4) Suffering from:

(i) Any disability which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, but only if it is reasonably certain that such disability will continue throughout the life of the person;

or

(ii) Any disease or disorder determined by VA to be of such a nature or extent as to justify a determination that persons suffering from that disease or disorder are permanently and totally disabled.

(Authority: 38 U.S.C. 1502(a), 1513, 1521, 1522)

(b) Pension for survivors-(1) India war death pension. A monthly benef payable by the Department of Vetera Affairs to the surviving spouse or chi of a deceased veteran of an Indian wa Basic entitlement exists if a vetera had qualifying service as specified in U.S.C. 1511. Indian war death pensi rates are set forth in 38 U.S.C. 1534 an 1535.

(2) Spanish-American War death pe sion. A monthly benefit payable by t Department of Veterans Affairs to t surviving spouse or child of a deceas veteran of the Spanish-American Wa if the veteran:

(i) Had 90 days or more active servi during the Spanish-American War; or

(ii) Was discharged or released fro such service for a disability servic connected without benefit of presum tive provisions of law, or at time of d charge had such a service-connect disability, as shown by official servi records, which in medical judgme would have justified a discharge f disability.

(Authority: 38 U.S.C. 1536, 1537)

(3) Section 306 death pension. A mont ly benefit payable by the Departme of Veterans Affairs to a survivi spouse or child because of a vetera nonservice-connected death. Basic e titlement exists if:

(i) The veteran (as defined in §3.10 and (d)(2)) had qualifying service specified in paragraph (a)(2)(i), (ii), (iii) of this section; or

(ii) The veteran was, at time death, receiving or entitled to recei compensation or retired pay for ser ice-connected disability based on wa time service; and

(iii) The surviving spouse or child ( was in receipt of section 306 pension December 31, 1978, or (B) had a clai for pension pending on that date, or ( filed a claim for pension after that da but within 1 year after the veteran death, if the veteran died before Jan ary 1, 1979; and

(iv) The surviving spouse or chi meets the income and net worth r quirements of 38 U.S.C. 1541, 1542 1543 as in effect on December 31, 197 and all other provisions of title 3