Book G, Supplement No. 78

Custom Federal Regulations Service™

This is supplemental material

for Book G of your set of

Federal Regulations

Title 38, Part 21

Vocational Rehabilitation and Education

Veterans Benefits Administration

Supplement No. 78

Covering period of Federal Register issues

through June 4, 2008

Copyright © 2008 Jonathan Publishing

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GENERAL INSTRUCTIONS

Custom Federal Regulations Service™

Supplemental Materials for Book G

Code of Federal Regulations

Title 38, Part 21

Vocational Rehabilitation and Education

Veterans Benefits Administration

Supplement No. 78

5 June 2008

Covering the period of Federal Register issues

through June 4, 2008

When Book G was originally prepared, it was current through final regulations published in the Federal Register of 25 February 1992. These supplemental materials are designed to keep your regulations up to date. You should file the attached pages immediately, and record the fact that you did so on the Supplement Filing Record which is at page G-8 of Book G, Vocational Rehabilitation and Education.

To ensure accuracy and timeliness of your materials,

it is important that you follow these simple procedures:

1. Always file your supplemental materials immediately upon receipt.

2. Before filing, always check the Supplement Filing Record (page G-8) to be sure that all prior supplements have been filed. If you are missing any supplements, contact the Veterans Benefits Administration at the address listed on page G-2.

3. After filing, enter the relevant information on the Supplement Filing Record sheet (page G-8)—the date filed, name/initials of filer, and date through which the Federal Register is covered.

4. If as a result of a failure to file, or an undelivered supplement, you have more than one supplement to file at a time, be certain to file them in chronological order, lower number first.

5. Always retain the filing instructions (simply insert them at the back of the book) as a backup record of filing and for reference in case of a filing error.

6. Be certain that you permanently discard any pages indicated for removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove and throw away the pages listed under Remove These Old Pages, and replace them in each case with the corresponding pages from this supplement listed under Add These New Pages. Occasionally new pages will be added without removal of any old material (reflecting new regulations), and occasionally old pages will be removed without addition of any new material (reflecting rescinded regulations)—in these cases the word None will appear in the appropriate column.

FILING INSTRUCTIONS

Book G, Supplement No. 78

June 5, 2008

Remove theseAdd theseSection(s)

old pagesnew pagesAffected

Do not file this supplement until you confirm that all prior supplements have been filed

21.3020-1 to 21.3021-521.3020-1 to 21.3021-5§21.3021

21.3040-1 to 21.3043-121.3040-1 to 21.3043-2§§21.3040–21.3042

21.3135-2 to 21.3135-321.3135-2 to 21.3135-5§21.3135

21.4131-3 to 21.4131-621.4131-3 to 21.4131-6§21.4131

Be sure to complete the

Supplement Filing Record (page G-8)

when you have finished filing this material.

HIGHLIGHTS

Book G, Supplement No. 78

June 5, 2008

Supplement Highlights references: Where substantive changes are made in the text of regulations, the paragraphs of Highlights sections are cited at the end of the relevant section of text. Thus, if you are reading §3.263, you will see a note at the end of that section which reads: “Supplement Highlights references—6(2).” This means that paragraph 2 of the Highlights section in Supplement No. 6 contains information about the changes made in §3.263. By keeping and filing the Highlights sections, you will have a reference source explaining all substantive changes in the text of the regulations.

Supplement frequency: This Book G (Rehabilitation and Education) was originally supplemented six times a year, in February, April, June, August, October, and December. Beginning 1 August 1995, supplements will be issued every month during which a final rule addition or modification is made to the parts of Title 38 covered by this book. Supplements will be numbered consecutively as issued.

Modifications in this supplement include the following:

1. On 28 May 2008, the VA published a final rule, effective that same date, to amend its regulations governing the Survivors’ and Dependents’ Educational Assistance program in order to implement statutory provisions in the Veterans Benefits and Health Care Improvement Act of 2000, the Veterans’ Survivor Benefits Improvements Act of 2001, the Veterans Education and Benefits Expansion Act of 2001, the Veterans Benefits Act of 2002, and the Veterans Benefits Act of 2003, which provide that certain eligible children may choose the beginning date of their period of eligibility and eligible children who serve on active duty or in the National Guard may receive extensions to the ending date of their period of eligibility; allow VA to consider certain qualifying beneficiaries’ original claims as having been filed retroactively to their eligibility dates; allow certain eligible DEA beneficiaries to be paid for preparatory courses for tests required or used for admission to an institution of higher education or a graduate school; and permit eligible children to receive benefits for such preparatory courses even if the courses are taken before their 18th birthday. Changes:

 In §21.3021, added an introductory paragraph, revised paragraph (h), and added new paragraphs (m)–(s);

 In §21.3040, revised the cross-reference in paragraph (d);

 Revised §21.3041 [as corrected, 73 FR 31742, June 3, 2008];

 In §21.3042, removed paragraph (c);

 In §21.3135, revised paragraph (g); and

 In §21.4131, revised the cross-reference in paragraph (d)(1)(i)(A), and added new paragraph (e).

G78–1

21.3020-1§21.3020—Educational assistance21.3020-1

§21.3020 Educational assistance.

The program of educational assistance under 38 U.S.C. Chapter 35 captioned Survivors’ and Dependents’ Educational Assistance, may be referred to as Dependents’ Educational Assistance. (Authority: Sec. 309, 90 Stat. 2383)

(a) General. A program of education or special restorative training may be authorized for an eligible person who meets the definition contained in §21.3021.

(b) 45 months limitation. Educational assistance may not exceed a period of 45 months, or the equivalent in part-time training, unless it is determined that a longer period is required for special restorative training under the circumstances outlined in §21.3300(c) or except as specified in §21.3044(c). (Authority: 38 U.S.C. 3511(a), 3533, 3541(b))

(c) Courses in foreign countries. A course to be pursued at a school not located in a State or in the Philippines may not be approved except under the circumstances outlined in §21.4260.

[30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966; 34 FR 841, Jan. 18, 1969; 38 FR 14931, June 7, 1973; 43 FR 35289, Aug. 9, 1978]

(No. 27 6/25/96)

21.3021-1§21.3021—Definitions 21.3021-1

§21.3021 Definitions.

For the purposes of subpart C and the payment of basic educational assistance under 38 U.S.C. chapter 35, the following definitions apply.

(a) Eligibleperson means:

(1) A child of a:

(i) Veteran who died of a service-connected disability.

(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability.

(iii) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.

(iv) Person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.

(2) The surviving spouse of a:

(i) Veteran who died of a service-connected disability.

(ii) Veteran who died while having a disability evaluated as total and permanent in nature resulting from a service-connected disability, arising out of active military, naval or air service after the beginning of the Spanish-American War. (See §§3.6(a) and 3.807 of this chapter.)

(3) The spouse of a:

(i) Veteran, serviceman or servicewoman who has a total disability permanent in nature resulting from a service-connected disability.

(ii) Person who is on active duty as a member of the Armed Forces and who now is, and, for a period of more than 90 days, has been, listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power.

(b) Child means a son or daughter of a veteran as defined in §3.807(d) of this chapter. The term includes a child of a Philippine Commonwealth Army veteran and a Philippine Scout (designated as a New Philippine Scout under 38 U.S.C. 3566(b)), as defined in §3.8(b), (c), or (d) of this chapter, but educational assistance allowance may not be authorized based on such service for any period before September 30, 1966.

(c) Wife and widow, spouse and survivingspouse. The terms wife and widow mean an individual as defined in §3.807(d) of this chapter and the terms spouse and surviving spouse shall have the same respective meaning when used in the regulations in Part 21, Title 38, Code of Federal Regulations. Educational assistance allowance may not be authorized for any such individuals for any period before December 1, 1968. (Authority: 38 U.S.C. 3500, 3501, and 3511)

(d) Parent or guardian means a natural or adoptive parent, a fiduciary legally appointed by a court of competent jurisdiction or any person who is determined to be otherwise legally vested with the care of the eligible person (38 U.S.C. 3501(a)(4)) or it may be the eligible person if he or she has attained majority under laws applicable in his or her State of residence as shown on the application and is under no known legal disability. (38 U.S.C. 3501(b)) The eligible person may be designated as the person by whom required actions may be taken even though he or she has not attained majority, or having attained majority, is under a legal disability, when it is determined that to do otherwise would not be in his or her best interest, would result in undue delay or would not be administratively feasible. Where necessary to protect his or her interest and there is reason why the eligible person should not act for himself or herself, some other individual may be designated as the person by whom required actions should be taken. (Authority: 38 U.S.C. 3501(c))

(e) Armed Forces, as to service by the eligible person, means the U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, including the Reserve components of each, the National Guard of the United States and the Air National Guard of the United States. (38 U.S.C. 1701 (a)(3) and (d) and 1712(a)) Effective December 31, 1970, the term includes the National Oceanic and Atmospheric Administration, the Environmental Science Services Administration and the Coast and Geodetic Survey, as to full-time duty of officers commissioned therein. (Authority: 38 U.S.C. 101(21)(C))

(f) Duty with the Armed Forces, as to service by the eligible person, means active duty, active duty for training for a period of 6 or more consecutive months, or an initial period of active duty for training of not less than 3 months or more than 6 months in the Ready Reserve. (38 U.S.C. 3501(a)(3) and (d), 3512(a)) See §§21.3041 and 21.3042.

(g) State means each of the several States, territories, and possessions of the United States, the District of Columbia, and the Commonwealth of Puerto Rico, and the Canal Zone. (38 U.S.C. 101(20))(Although the Republic of the Philippines is not included in the definition of a State, eligible persons may pursue courses of training in that country.)

(h) Program of education. The term program of education means any curriculum or any combination of unit courses or subjects pursued at an educational institution that is generally accepted as necessary to fulfill the requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. The term program of education also includes:

(1) A preparatory course for a test that is required or used for admission to an institution of higher education;

(2) A preparatory course for a test that is required or used for admission to a graduate school; and

(3) A licensing or certification test, the successful completion of which demonstrates an individual’s possession of the knowledge or skill required to enter into, maintain, or advance in employment in a predetermined and identified vocation or profession, provided such tests and the licensing or credentialing organizations or entities that offer such tests are approved by VA. (Authority: 38 U.S.C. 3002(3), 3501 (a)(5))

(i) Educational objective. An educational objective is one that leads to the awarding of a diploma, degree, or certificate which reflects educational attainment. (Authority: 38 U.S.C. 3501(a)(5))

(j) Professional or vocational objective. A professional or vocational objective is one that leads to an occupation. It may include educational objectives essential to prepare for the chosen occupation. When a program consists of a series of courses not leading to an educational objective, such courses must be directed toward attainment of a designated professional or vocational objective. (Authority: 38 U.S.C. 3501(a)(5))

(k) School, educational institution, institution. The terms school, educational institution and institution mean:

(1) A vocational school or business school;

(2) A junior college, teachers’ college, college, normal school, professional school, university, or scientific or technical institution;

(3) A public or private secondary school;

(4) A training establishment as defined in §21.4200(c); or

(5) An institution that provides specialized vocational training, generally recognized as on the secondary school level or above, for people with mental or physical disabilities. (Authority: 38 U.S.C. 3501(a)(6), 3535)

(l) Disabling effects of chronic alcoholism.

(1) The term disabling effects of chronic alcoholism means alcohol-induced physical or mental disorders or both, such as habitual intoxication, withdrawal, delirium, amnesia, dementia, and other like manifestations of chronic alcoholism which in the particular case:

(i) Have been medically diagnosed as manifestations of alcohol dependency or chronic alcohol abuse; and

(ii) Are determined to have prevented commencement or completion of the affected individual’s chosen program of education.

(2) A diagnosis of alcoholism, chronic alcoholism, alcohol-dependency, chronic alcohol abuse, etc., in and of itself, does not satisfy the definition of this term.

(3) Injury sustained by an eligible spouse or surviving spouse as a proximate and immediate result of activity undertaken by the eligible spouse or surviving spouse while physically or mentally unqualified to do so due to alcoholic intoxication is not considered a disabling effect of chronic alcoholism. (Authority: 38 U.S.C. 105, 3512(b))

(m) Institution of higher education. The term institution of higher education has the same meaning as provided in §21.7020(b)(45). (Authority: 38 U.S.C. 3002(3), 3501(a)(5))

(n) Graduate school. The term graduate school has the same meaning as provided in §21.7020(b)(46). (Authority: 38 U.S.C. 3002(3), 3501(a)(5))

(o) Eligibility date. The term eligibility date means the date on which an individual becomes an eligible person (as defined in paragraph (a) of this section). (Authority: 38 U.S.C. 5113)

(p) P&T means permanent and total “disability,” permanently and totally “disabled,” or permanent and total “rating,” when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran. (Authority: 38 U.S.C. 3501(a)(8))

(q) Initial rating decision. The term initial rating decision means, with respect to an eligible spouse or child, a decision made by VA that establishes for the person from whom such eligibility is derived:

(1) Service connection for the cause of the person’s death;

(2) A service connected P&T disability; or

(3) For a member of the Armed Forces, a P&T disability incurred or aggravated in the line of duty in the active military, naval, or air service if the member is hospitalized or receiving outpatient medical care, services, or treatment, and is likely to be discharged or released from such service for such disability. (Authority: 38 U.S.C. 5113)

(r) Effective date of the P&T rating. The term effective date of the P&T rating means the date from which VA considers that the veteran’s P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision. (Authority: 38 U.S.C. 3512(d))

(s) First finds. The term first finds means the effective date of the P&T rating or the date VA first notifies the veteran of that rating, whichever is more advantageous to the child. (Authority: 38 U.S.C. 3512(d))

(t) Counseling psychologist means the same as provided in §21.35(k)(1). (Authority: 38 U.S.C. 501, 3118(c), 3541, 3543)

(u) Vocational rehabilitation counselor means the same as provided in §21.35(k)(7). (Authority: 38 U.S.C. 501, 3118(c), 3541, 3543)

(v) Additional definitions. The definitions of all terms that are defined in §§21.1029 and 21.4200 but that are not defined in this section apply to subpart C of this part. (Authority: 38 U.S.C. 501, 3501)

Cross references: Duty periods. See §3.6 of this chapter. Persons included. See §3.7 of this chapter. Philippine and insular forces. See §3.8 of this chapter.

[36 FR 2508, Feb. 5, 1971, as amended at 38 FR 12110, May 9, 1973; 43 FR 35290, Aug. 9, 1978; 61 FR 26108, May 24, 1996; 61 FR 29295, June 10, 1996; 62 FR 51784, Oct. 3, 1997; 64 FR 23771, May 4, 1999; 73 FR 2423, Jan. 15, 2008; 73 FR 30488, May 28, 2008]

Supplement Highlights references: 27(1, 3), 34(2), 42(1), 77(2), 78(1).

(No. 78 6/5/08)

21.3040-1§21.3040—Eligibility; child21.3040-1

Eligibility and Entitlement

§21.3040 Eligibility; child.

(a) Commencement. A program of education or special restorative training may not be afforded prior to the eligible person’s 18th birthday or the completion of secondary schooling, whichever is earlier, unless it is determined through counseling that the best interests of the eligible person will be served by entering training at an earlier date and the eligible person has passed:

(1) Compulsory school attendance age under State law; or

(2) His or her 14th birthday and due to physical or mental handicap may benefit by special restorative or specialized vocational training.

(b) Secondary schooling. “Completion of secondary schooling” means completion of a curriculum offered by a public or private school which satisfies the requirements for a high school diploma or its equivalent—usually completion of the 12th grade in the public school system.

(c) Age limitation for commencement. No person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service-connected disability, or on or before the date the veteran’s death occurred, or on or before the 91st day of listing by the Secretary concerned of the member of the Armed Forces on whose service eligibility is claimed as being in one of the missing status categories of §21.3021(a)(1)(iv) and (3)(ii).

(d) Termination of eligibility. No person is eligible for educational assistance beyond his or her 31st birthday, except as provided under §21.3041(g)(2). In no event may educational assistance be provided after the period of entitlement has been exhausted. In an exceptional case special restorative training may be provided in excess of 45 months. See §21.3300. (Authority: 38 U.S.C. 3512(a))